Gauhati High Court
Page No.# 1/3 vs Smti. Dulali Saha on 3 January, 2025
Page No.# 1/3
GAHC010273052024
2025:GAU-AS:31
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RFA/78/2024
AMULYA SUKLA BAIDYA
S/O LATE PRAFULLA SAIKIA BAIDYA, R/O RAMKRISHNA NAGAR, P.O.
AND P.S.-RAMKRISHNA NAGAR, DIST- KARIMGANJ, ASSAM
VERSUS
SMTI. DULALI SAHA
W/O SRI KAMAL SAHA, R/O VILL- LAKSHMI NAGAR, P.O.-KADAMTOLA,
P.S.-RAMKRISHNA NAGAR, DIST- KARIMGANJ, ASSAM, PIN-788166
Advocate for the Petitioner : MR F U BARBHUIYA, MS S DAS
Advocate for the Respondent : ,
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date : 03.01.2025
Heard Mr. F.U. Barbhuiya, learned counsel for the appellant.
2. In this application under Section 96 read with Order XLI of the Code of
Civil Procedure, 1908, is directed against the Order dated 12.09.2024, passed by
the learned Civil Judge (Senior Division), Karimganj in Title Suit No. 52/2024.
3. It is to be noted here that vide impugned Order dated 12.09.2024, the
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learned trial Court has dismissed the suit of the plaintiff under Order 7, Rule
11(d) of the Code of Civil Procedure, 1908.
4. Mr. Barbhuiya, learned counsel for the appellant has assailed impugned
order on following two counts:-
(i) The impugned order was passed without affording an
opportunity of being heard to the appellant;
(ii) And while passing impugned order, the learned trial Court had
not taken into account the order of the Hon'ble Supreme
Court dated 10.01.2022 passed in the suo moto Writ
petition(C) No.3/2020.
5. Mr. Barbhuiya, further submits the appellant herein was newer head by the
learned trial Court and that in the order dated 10.01.2022, in suo moto Writ
Petition(C) No.03/2020 the Hon'ble Supreme Court has directed that the period
from 15.03.2020 till 28.02.2022, shall stand excluded for the purpose of
limitation as may be prescribed under any general or special laws in respect of
all judicial or quashi-judicial proceedings and such a plea was taken by the
petitioner in the plaint at paragraph No. 6. And as such the impugned order, so
passed by the learned trial Court, suffers from illegality and also it is arbitrary
and therefore, it is contended to set it aside.
6. Having heard the submission of learned counsel for the petitioner, I have
carefully gone through the petition and the documents placed on record and
also perused the impugned Judgment and Decree dated 12.09.2024.
7. A bare perusal of the order dated 12.09.2024, indicates that the learned
trial Court had not afforded any opportunity of being heard to the petitioner
before rejecting the plaint. Further, it appears from the impugned Order dated
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12.09.2024, that the learned trial Court had held that the parties have entered
into agreement for sale on 21.01.2020, and the suit was filed on 06.09.2024,
after the period of limitation and thereafter, it has rejected the plaint as per
Order 7, Rule 11 Clause (d) Code of Civil Procedure. But, it appears that, while
counting the period of limitation from the date of agreement for sale i.e,
21.01.2020, till filing of the suit on 06.09.2024, the learned trial Court has not
excluded the period from 15.03.2020 till 28.02.2022, for the purpose of
limitation as ordered by the Hon'ble Supreme Court in the suo moto Writ
petition(C) No.3/2020 vide order dated 10.01.2022.
8. In that view of the matter the impugned orders suffers from illegality and
also it is arbitrary and on such count the same cannot be allowed to stand and
accordingly the impugned Order dated 12.09.2024, stand set aside and
quashed. The matter is remanded to the learned trial Court to consider the
matter a fresh after affording an opportunity of being heard to the appellant and
also taking into account the order of Hon'ble Supreme Court dated 10.01.2022,
passed in suo moto Writ petition(C) No.3/2020, and thereafter to pass
necessary order(s).
9. In terms above, this RFA stands disposed of at the motion stage itself.
JUDGE
Comparing Assistant
