Gauhati High Court
Page No.# 1/5 vs Md. Arif Zaman @ Ratul on 26 March, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/5
GAHC010153212024
2025:GAU-AS:3541
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/282/2024
PALASH PHUKAN
SON OF SRI TUKHESWAR PHUKAN, RESIDENT OF MERAPANI FOREST
VILLAGE, P.O. MERAPANI, DISTRICT- GOLAGHAT, ASSAM, PIN- 785705
VERSUS
MD. ARIF ZAMAN @ RATUL
SON OF MD. SIRRAJUDDIN ALI, RESIDENT OF MERAPANI FOREST
VILLAGE, P.O. MERAPANI, DISTRICT- GOLAGHAT, ASSAM, PIN- 785705
For the Petitioner(s) : Mr. M. Dutta, Advocate
For the Respondent(s) : Mr. P. S. Raja, Advocate
: Mr. A. B. Dutta, Advocate
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 26.03.2025
Heard Mr. M. Dutta, the learned counsel appearing on behalf of the
Petitioner and Mr. P. S. Raja, the learned counsel appearing on behalf of
the respondent.
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2. This is an application filed by invoking the supervisory jurisdiction
under Article 227 of the Constitution challenging the order dated
09.07.2024 passed in Misc. (J) Case No.132/2023 whereby the
application under Section 5 of the Limitation Act, 1963 (for short 'the Act
of 1963') for condoning the delay in filing the application for setting aside
the ex-parte decree dated 02.08.2022 was allowed.
3. This Court has perused the application under Section 5 of the Act of
1963 filed by the respondent herein wherein it is being mentioned that
after service of summons, the respondent herein had consulted with his
advocate one Shri Dipankar Henrom for taking necessary steps on his
behalf and the counsel thereafter did not inform what further steps were
required to be taken and also did not take any steps in the said suit. It
was only in the month of October, 2023 the respondent herein had come
to learn about the passing of the ex-parte decree and immediately
thereupon filed the application on 15.12.2023.
4. It is seen that the petitioner herein had filed objection to the
application under Section 5 the Act of 1963 stating inter alia that the
petition so filed under Section 5 the Act of 1963 was not supported by
necessary documentary evidence sufficient to establish the cause of
delay in preferring the petition. It was also mentioned that the
respondent herein was also negligent and as such there was no sufficient
cause for condoning the delay under Section 5 the Act of 1963. It was
also denied that the petitioner is a businessman who was doing business
in the State of Nagaland during the period.
5. The learned Trial Court vide the impugned order dated 09.07.2024
had condoned the delay of 1 year 4 months 15 days in preferring the
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application to set aside the ex-parte judgment and decree dated
01.08.2022. In doing so, the learned Trial Court had assigned reasons
which in the opinion of the learned Trial Court constituted a sufficient
cause within the meaning of Section 5 of the Act of 1963. The exercise of
discretion by the learned Trial Court in a matter pertaining to
condonation of delay normally is not required to be interfered with unless
the said order suffers from perversity, unreasonableness, irrational as
well as beyond the settled principles of law for condoning the delay. The
learned Trial Court was of the opinion that the petitioner had explained
the delay that due to his business engagement in Nagaland and the
advice received from his engaged counsel, he was unaware of the
necessity to appear personally in a suit. The learned Trial Court also
came to an opinion that upon discovering the ex-parte decree, the
petitioner took steps to address the matter. On the basis thereof, the
learned Trial Court had condoned the delay. In the opinion of this Court,
the impugned order by which the delay was condoned does not call for
any interference in exercise of the supervisory jurisdiction of this Court
on the ground that the scope of jurisdiction under Article 227 of the
Constitution is limited. Further to that, this Court is also not sitting as an
Appellate Court.
6. Considering the above, this Court is not inclined to interfere with the
impugned order dated 09.07.2024 whereby the delay was condoned for
which the instant petition stands dismissed.
7. This Court further takes note of that vide an order dated 05.08.2024,
the further proceedings of Misc. (J) Case No.132/2023 arising out of
Money Suit No.23/2021 was stayed. In view of the order passed herein
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whereby this Court is not inclined to entertain the instant petition for the
reasons above stated, the interim order stands vacated and the parties
herein are directed to appear before the learned Trial Court i.e. the Court
of the learned Civil judge (Junior Division) No.1, Golaghat on 19.05.2025
for further proceedings of Misc. (J) Case No.132/2023 arising out of
Money Suit No.23/2021.
8. Before parting with the records, this Court, however, finds it relevant
to observe that the learned Trial Court while deciding the application for
setting aside the ex-parte judgment and decree shall bear in mind that
there are two grounds on which such an application is maintainable.
First, when the summons have not been duly served and secondly, when
the defendant was prevented by sufficient cause from appearing in the
suit when the suit was called on for hearing. The fact that the
respondent herein who was the defendant had received the summons is
not in issue. Therefore, the question which would have to be decided by
the learned Trial Court is as to whether the respondent/the defendant
was prevented by sufficient cause for not appearing on the date fixed for
hearing is to be adjudicated. The learned Trial Court shall also bear in
mind that there is a difference between sufficient cause and good cause
or in other words, in respect to the application for setting aside, the
cause shown should be more than a good cause.
9. This Court further observes that the learned Trial Court while
deciding the application for setting aside the decree shall not be
influenced by the order dated 09.07.2024 whereby the delay was
condoned as well as the present proceedings by which the order dated
09.07.2024 was interfered with taking into consideration the limited
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scope of the present proceedings. The learned Trial Court shall therefore
decide the said application on its own merit and pass appropriate orders
by giving due reasons.
10. The Registry is directed to forthwith return the LCR to the learned
Court below.
JUDGE
Comparing Assistant
