Gauhati High Court
Jyotika Sarma Bordoloi vs On The Death Of Kamal Deo Sah His Legal ... on 25 June, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
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GAHC010118752025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/203/2025
JYOTIKA SARMA BORDOLOI
DAUGHTER OF LATE BINANDA CH SARMA BORDOLOI, RESIDENT OF
KAKOPATHAR, P/O. AND P/S. KAKOPATHAR, DIST. TINSUKIA, ASSAM
VERSUS
ON THE DEATH OF KAMAL DEO SAH HIS LEGAL HEIRS (1) SRI RAJKARAN
SAH
SON OF LATE KAMAL DEO SAH, RESIDENT OF KAKOPATHAR, P/O. AND
P/S. KAKOPATHAR, DIST. TINSUKIA, ASSAM.
2:DEB KR SAH
SON OF LATE KAMAL DEO SAH
RESIDENT OF KAKOPATHAR
P/O. AND P/S. KAKOPATHAR
DIST. TINSUKIA
ASSAM
For the Petitioner(s) : Mr. M. K. Sarma, Advocate
For the Respondent(s) : None appears.
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 25.06.2025
Issue notice making it returnable by 11.08.2025.
2. Steps be taken upon the respondent Nos. 1 and 2 by way of
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Registered Post with A/D as well as through usual process within 3
(three) days.
3. In addition to that, the petitioner is further directed to take steps
upon the respondent Nos. 1 and 2 by way of dasti routed through the
Registry of this Court and file an affidavit of service on or before the next
date.
4. From the materials on record, it transpires that the predecessor-in-
interest of the respondents herein had instituted a suit before the Court
of the Civil Judge, Tinsukia seeking specific performance of the contract,
permanent injunction and other reliefs against the petitioner herein. The
said suit being Title Suit No.3/2015 was decreed by the judgment and
decree dated 22.09.2017 thereby directing the petitioner herein to
execute and register the sale deed in respect to the suit land in favour of
the predecessor-in-interest of the respondents herein in compliance with
the terms and conditions of the agreement dated 13.05.2013 and further
restraining the petitioner herein from disturbing the possession of the
plaintiff over the suit land. The petitioner being aggrieved preferred an
appeal before this Court which was registered and numbered as RFA
No.65/2018.
5. It is very pertinent herein to mention that post the judgment and
decree passed by the learned Trial Court and prior to filing of the appeal,
the predecessor-in-interest of the respondents had expired and as such,
the appeal was filed against the respondents herein. However,
inadvertently, the wife of the predecessor-in-interest of the respondents
herein was not made a party though she was one of the legal
representatives of the predecessor-in-interest of the respondents. Under
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such circumstances, an application was filed before this Court being I.A
(Civil) No.974/2021 under Order 1 Rule 10(2) of the Code of Civil
Procedure, 1908 (for short 'the Code') on 07.04.2021. Prior to
consideration of the said application being I.A.(Civil) No.974/2021, the
appeal being RFA No.65/2018 was transferred back to the Court of the
learned District Judge, Tinsukia in view of the change in the pecuniary
jurisdiction on account of the amendment to the Bengal, Agra and Assam
Civil Courts (Assam Amendment) Act, 2021.
6. Thereupon, the appeal being RFA No.65/2018 was re-registered as
Title Appeal No.04/2022 and was endorsed to the Court of the learned
Additional District Judge, Tinsukia for disposal. In the said appeal, the
petitioner filed an application giving details of the previous application
filed before this Court when the RFA No.65/2018 was pending for
impleadment of the wife of the predecessor-in-interest of the
respondents. The said application was registered and numbered as
Petition No.311/2024. The said application was rejected vide the
impugned order dated 04.10.2024 and it is under such circumstances,
the present application has been filed.
7. The learned counsel for the petitioner submitted that taking into
account that the original plaintiff expired after the judgment and decree
being passed and prior to the appeal being filed, in terms with Section
146 of the Code, the petitioner could file the appeal against the legal
representatives of the original plaintiff. He further submitted that at that
point of time, to the knowledge of the petitioner, the original plaintiff was
survived by the present respondents and later, on coming to learn that
the original plaintiff was survived by his wife, the application was filed
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before this Court wherein RFA No.65/2018 was pending. He submitted
that the reasons so assigned by the learned First Appellate Court i.e. the
Court of the learned Additional District Judge No.2, Tinsukia for rejecting
the application is contrary to the provisions of law inasmuch as the case
would neither come within the ambit of Order XLI Rule 20 of the Code
nor would come within the ambit of Order XXII Rule 4 of the Code. It
was a pure and simple application under Order I Rule 10(2) of the Code
and there being no period of limitation prescribed and as such, the filing
of the application would have to be taken as application filed within the
period of limitation.
8. Taking into account the said submissions, this Court is of the opinion
that the petitioner has been able to make out a prima facie case for stay
of the further proceedings of Title Appeal No.04/2022 till the next date.
9. Accordingly, the further proceedings of Title Appeal No.04/2022
pending before the Court of the learned Additional District Judge No.2,
Tinsukia shall remained stayed till the next date.
10. List accordingly.
JUDGE
Comparing Assistant
