Page No.# 1/15 vs Mrs Fijoja Begum And 4 Ors
2025 Latest Caselaw 5766 Gua

Gauhati High Court

Page No.# 1/15 vs Mrs Fijoja Begum And 4 Ors on 26 June, 2025

                                                               Page No.# 1/15

GAHC010142492025




                                                         undefined

                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : RSA/102/2025

         SAFIQUE UDDIN AHMED AND 3 ORS
         SONS OF LATE SAMSUR NEHAR BEGUM, R/O HEDAYATPUR GUWAHATI,
         KAMRUP (M), ASSAM, PIN 781003

         2: RAFIQUE UDDIN AHMED

          SONS OF LATE SAMSUR NEHAR BEGUM
          R/O HEDAYATPUR GUWAHATI
          KAMRUP (M)
          ASSAM
          PIN 781003

         3: TAFIQUE UDDIN AHMED

          SONS OF LATE SAMSUR NEHAR BEGUM
          R/O HEDAYATPUR GUWAHATI
          KAMRUP (M)
          ASSAM
          PIN 781003

         4: MUSTT. NURAN NEHAR BEGUM

          W/O TALMIZUR RAHMAN
          D/O LATE NAZIMUN NESSA AND LATE SADER ALI
          R/O ISLAMPUR
          GUWAHATI
          KAMRUP(M)
          PIN 78100

         VERSUS

         MRS FIJOJA BEGUM AND 4 ORS
         W/O MD. OSMAN ALI, R/O VILL. GARIGAON RANGAMATI, NEAR BILLAL
         MASJID, P.S. JALUKBARI, KAMRUP (M), ASSAM, PIN 781012
                                                                          Page No.# 2/15


            2:MRS. KHUDEJA BEGUM

             W/O SUKUR ALI
             R/O VILL. GARIGAON GAON BURHAPARA
             P.S.JALUKBARI
             KAMRUP(M)
             ASSAM
             PIN 781012

            3:MRS. KHURSEDA BEGUM

             W/O MD. HABIBUR RAHMAN
             R/O HOUSE NO. 128 DWARANDHA
             SIX MILE
             P.S. DISPUR KAMRUP (M)
             ASSAM
             PIN 781023

            4:MD. JEHIRUL ISLAM

             DIST. KAMRUP (M)

            5:MD. IMRAN KHAN

             BOTH ARE R/O VILL. GARIGAON
             MEDHIPARA
             P.S. JALUKBARI
             KAMRUP (M)
             ASSAM
             PIN 78101

Advocate for the Petitioner   : MR. J DEKA, MS. M BAISHYA

Advocate for the Respondent : MR. R K BHUYAN, FOR CAVEATOR,MR. R DAS,N
BHUYAN,MR. S A SINGH,MR M KASHYAP,MR A ZAMAN




                                   BEFORE
                      HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                         ORDER

Date : 26.06.2025

Heard Mr. J. Deka, learned counsel for the appellants and Mr. R.K. Bhuyan, learned Page No.# 3/15

counsel for the respondents.

2. This regular second appeal, under Section 100 CPC, read with Order 42 Rules 1 & 2 of the CPC, is directed against the order dated 09.05.2025, passed by the learned Civil Judge (Senior Division) No. 1, Kamrup (M) at Guwahati (first appellate court hereinafter), in Misc. (J) Case No. 426/2025, arising out of Misc. Appeal No. 10/2025.

3. It is to be noted here that vide impugned order, dated 09.05.2025, the learned first appellate court had refused to condone the delay of 20 days in preferring the connected appeal and thereby dismissed the appeal.

4. The background facts, leading to filing of the present appeal, is adumbrated herein below:-

"The petitioners herein, being the third party, filed a petition under Order 21 Rule 97 read with Order 21 Rule 26 also read with Section 151 of the CPC, in the Title Execution Case No. 24/2022, pending before the learned Civil Judge (Junior Division) No. 2, Kamrup (M) at Guwahati (trial court herein after), for determination of all the questions relating to their right, title, interest and possession over the plot of land, measuring 3 Kathas 17 Lechas 1 Powa, covered by Dag No. 1192 of K.P. Patta No. 187 of village Dehan Garigaon, under Jalukbari Mouza and the houses standing therein.

Upon the said petition, the learned executing court had registered a Misc. (J) Case No. 502/24 and then hearing both the parties, the learned trial court, vide order dated 07.03.2025, had dismissed the petition.

Being aggrieved with the said order dated 07.03.2025, the petitioners herein had filed one Misc. Appeal No. 10/2025 on various grounds and also filed an application for condoning the delay of 20 days in preferring the said appeal, that had occurred due to delay in obtaining the certified copy of Misc. (J) Case No. 502/24 and also due to the ailments the petitioner No. 4, who was Page No.# 4/15

suffering from Asthma and severe respiratory disorders along with Arthritis for which, she could not move in time, and therefore, the appeal could not be filed within the stipulated period.

Thereafter, hearing both the parties, the learned first appellate court was pleased to dismiss the petition for condoning the delay and consequently, the appeal also came to be dismissed."

5. Being aggrieved, the appellants approached this court by filing the present appeal suggesting the following substantial questions of law:-

"(i) Whether the exercise of dictionary power by the appellate court in a hyper-technical manner, perversely and ignoring the settled principles of law in not condoning the delay of 20 days be permitted in law to take away the appellants' statutory right of appeal under Order 21 Rule 103 of the CPC? and

(ii) Whether the learned appellate court committed perversity in not appreciating the pleaded facts constituting sufficient cause for condonation of delay in preferring the appeal and materials placed on record while arriving at pedantic findings?"

6. Mr. Deka, learned counsel for the appellants submits that there was only 20 days delay in filing the appeal and the same was explained sufficiently in the application and besides, right to appeal is a statutory right and having dismissed the petition, the learned first appellate court had deprived the appellants from the right of appeal under Order 21 Rule 103 of the CPC. Mr. Deka further submits that the appellant No. 4 was suffering from Asthma and severe respiratory disorders along with Arthritis for which, she could not move in time and for which, the appeal could not be filed within the stipulated period and that the Page No.# 5/15

delay is not intentional rather it is a bona-fide one. Mr. Deka also submits that the appellants have an arguable case and therefore, the same may be heard on merit and under such circumstances, Mr. Deka has contended to admit this appeal.

7. Per-contra, Mr. Bhuyan, learned counsel for the respondents vehemently opposed the petition and submits that the suit was instituted in the year 2008 and now the case is pending for execution and that only to cause delay in execution proceeding, this appeal has been filed which lacks bona-fide on the part of the appellant. Mr. Bhuyan further submits that this appeal is not devoid of merit and that no substantial question law, as suggested, is involved here in and therefore, it is contended to dismiss the same.

8. Having heard the submissions of learned counsel for both the parties, I have gone through the memo of appeal and also perused the impugned order dated 09.05.2025, passed by the learned first appellate court.

9. Taking note of the facts and circumstances on the record as well as the submission of learned counsel for both the parties, this second appeal is admitted on the following substantial question of law:-

"(i) Whether the learned first appellate court had committed perversity in not taking into account the pleaded facts constituting sufficient cause for condoning of delay in preferring the appeal and adopted a higher technical approach?"

10. The learned counsel for both the parties advanced their respective arguments on the substantial question of law and the same received due consideration of this court.

11. That, perusal of the impugned order dated 09.05.2025, so passed by the learned first appellate court, indicates that the learned court had found that - admittedly the petitioners had received the certified copy of the impugned order Page No.# 6/15

on 24.03.2025. The medical documents submitted by the petitioner, Nurun Nerah Begum shows that she was admitted in the Hospital on 12.03.2025, and discharged on 13.03.2025, and petitioner, Nurun Nehar Begum stated to be 70 years old and she is the sister of all other three petitioners and that no sufficient reason is being shown by the petitioners as to what prevented the other petitioners from moving the Misc. Appeal within the period of limitation. The learned court also found that the impugned order was passed on 07.03.2025 and it is admitted by the petitioners that they applied for the certified copy only on 17.03.2025. The petitioners took the plea that although the order was passed on 07.03.2025, it was not uploaded in the website till 17.03.2025. But, nothing was presented before the court in respect of that contention that the record was not uploaded in the website and that a party should not wait to apply for certified copy till order is uploaded in website and thereafter, dismissed the petition.

12. The principle governing the condonation of delay by the courts is well settled by Hon'ble Supreme Court in catena of decisions including the decision. In the case of Collector, Land Acquisition, Anantnag vs. Mst. Katiji:

reported in (1987) 2 SCC 107, has observed as under:-

"The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on "merits".

The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice - that being the life purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy, and such a liberal approach is adopted on principle as it is realized that:

Page No.# 7/15

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made.

Why not every hour's delay, every second's delay?

The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides.

A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the "State" which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly Page No.# 8/15

treatment when the "State" is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community does not deserve a litigant-non- grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even- handed justice on merits in preference to the approach which scuttles a decision on merits."

13. Again in N. Balakrishnan v. M. Krishnamurthy: reported in (1998) 7 SCC 123, Hon'ble Supreme Court went a step further and made the following observations:-

"It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter; acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be un-condonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to Page No.# 9/15

consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.

Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss."

14. In the case of Esha Bhattacharjee Vs. Managing Committee of Page No.# 10/15

Raghunathpur Nafar Academy & Ors., reported in (2013) 12 SCC 649, Hon'ble Supreme Court, referring to earlier authorities, broadly culled out the principles of condonation of delay as under:-

i) There should be a liberal, pragmatic, justice-oriented, non-

pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.

iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

ix) The conduct, behaviour and attitude of a party relating to its Page No.# 11/15

inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

12. To the aforesaid principles, Hon'ble Supreme Court also added some more guidelines taking note of the present day scenario, in the said case. They are: -

a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

Page No.# 12/15

d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.

13. Again in the case of Pundlik Jalam Patil(supra), while dealing with the issue of condonation of delay, Hon'ble Supreme Court has held as under:-

"29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation/ resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.

31. It is true that when the State and its instrumentalities are the applicants seeking condonation of delay they may be entitled to Page No.# 13/15

certain amount of latitude but the law of limitation is same for citizen and for governmental authorities. The Limitation Act does not provide for a different period to the Government in filing appeals or applications as such. It would be a different matter where the Government makes out a case where public interest was shown to have suffered owing to acts of fraud or collusion on the part of its officers or agents and where the officers were clearly at cross purposes with it. In a given case if any such facts are pleaded or proved they cannot be excluded from consideration and those factors may go into the judicial verdict. In the present case, no such facts are pleaded and proved though a feeble attempt by the learned counsel for the respondent was made to suggest collusion and fraud but without any basis. We cannot entertain the submission made across the Bar without there being any proper foundation in the pleadings."

14. The legal proposition, which can be crystallized from the aforesaid decisions and discussion, is that courts are not supposed to legalize injustice, but are obliged to remove injustice. Therefore, liberal, pragmatic, justice-oriented, non- pedantic approach has to be adopted while dealing with an application for condonation of delay if 'sufficient cause' is being shown. The terms 'sufficient cause' should be understood in their proper spirit, philosophy and purpose and regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation. The paramount and pivotal consideration is substantial justice; the technical considerations should not be given undue and uncalled for emphasis. In respect of deliberate causation of delay the presumption is not available but, gross negligence on the part of the counsel or litigant is to be taken note of, besides lack of bona fides imputable to a party seeking condonation of delay, which is a significant and relevant fact. The courts should not adhere to strict proof, but required to be vigilant so that there is no real failure of justice. The approach of the court must be liberal but at the same time it must be reasonable also. In case of inordinate delay, strict approach is required to be taken while in case of delay of short duration, a liberal delineation is required. The fundamental principle, being weighing Page No.# 14/15

the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. While condoning delay the conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. In the case of the explanation, being offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such litigation. The entire gamuts of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. The State or a public body or an entity, representing a collective cause, should be given some acceptable latitude. But, the law of limitation is same for citizen and for governmental authorities.

15. Thus, having examined the cause being shown by the appellants for failing to file the connected appeal in time, in the light of the proposition discussed herein above, and also carefully scrutinizing the entire gamut of facts, this court is left unimpressed with the approach so taken by the learned first appellate court. Indisputably, the delay involved herein is only of 20 days. There is some explanation for the delay in filing the appeal. Notably, the right to prefer an appeal is a statutory right. In the given factual backdrop, some sort of elasticity could have been extended to the cause being shown for its being the same 'sufficient cause' within the meaning of Section 5 of the Limitation Act. The approach ought to have been liberal, pragmatic, justice-oriented, non- pedantic approach in dealing with the application for condonation of delay, as the delay is not inordinate and the same appears to be bona-fide one. Thus, it appears that the learned first appellate court has failed to weigh the scale of balance of justice in respect of both parties in its proper perspective.

16. In the result, this court is of the considered view that the substantial question of law as formulated herein above is flowed out from the impugned order dated 09.05.2025. And in the given facts and circumstances the said substantial question law has to be answered in affirmative and accordingly the same stands answered.

Page No.# 15/15

17. In view of the affirmative decision above, the impugned order, dated 09.05.2025, so passed by the learned first appellate court in Misc. (J) Case No. 426/2025, arising out of Misc. Appeal No. 10/2025, stands set aside and quashed.

18. Consequent upon setting aside of the impugned order dated 09.05.2025, now the learned first appellate court shall admit the appeal and thereafter, shall make an endeavour to dispose of the same as soon as practicable, preferably within four months. Both the parties are directed to appear before the learned first appellate court on or before 16.07.2025.

19. In terms of above this appeal stands disposed of.

JUDGE

Comparing Assistant