Gauhati High Court
Page No.# 1/5 vs Lalit Mohan Nath on 21 May, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/5
GAHC010214842019
2025:GAU-AS:6436
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/165/2019
KALPANA ROY
W/O SRI SATYABANENDU ROY, R/O- GAYATRI APARTMENT, BLOCK-1, 3RD
FLOOR, FLAT NO. A-2, PAHARTOLI, BYE LANE NO. 3, P.O. BINOVANAGAR,
DIST. KAMRUP(M), ASSAM.
VERSUS
LALIT MOHAN NATH
S/O- SRI LAKHESWAR NATH, R/O- SWAHID KANAKLATA PATH, BYE LANE
NO. -3, HOUSE NO. 2, ODALBAKRA, P.O. ODALBAKRA, P.S. DISPUR, GHY.-
34, DIST. KAMRUP(M), ASSAM.
For the Petitioner(s) : Mr. S. Saikia, Advocate
For the Respondent(s) : Mr. D. Nandi, Advocate
: Ms. P. Sarmah, Advocate
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 21.05.2025
Heard Mr. S. Saikia, the learned counsel appearing on behalf of the
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petitioner and Mr. D. Nandi, the learned counsel appearing on behalf of
the respondent.
2. This is an application filed under Section 115 of the Code of Civil
Procedure, 1908 (for short 'the Code') challenging the judgment and
decree dated 20.06.2019 passed in Title Suit No.405/2014 by the Court
of the learned Civil Judge No.2, Kamrup (M) at Guwahati whereby the
suit so filed by the petitioner under Section 6 of the Specific Relief Act,
1963 (for short 'the Act of 1963') was dismissed and the counter claim
filed by the respondent seeking specific performance of an agreement
dated 14.11.2007 was decreed.
3. Mr. S. Saikia, the learned counsel appearing on behalf of the
petitioner submitted that taking into account that the plaintiff has title
over the suit property, the plaintiff would be well advised to file a suit
based on title for recovery of possession over the suit land. He further
submitted that against the decree passed in the counter claim, the
plaintiff/the petitioner ought to have filed an appeal inasmuch as a
decree passed in the counter claim is a decree which is appealable. The
learned counsel therefore submitted that he may be permitted to
withdraw the instant petition without prejudice to his rights to file a suit
for recovery of possession based on title as well as to file an appeal
against the decree passed under the counter claim and the period during
which the instant proceedings have been pending be excluded while
computing the period of limitation in filing the appeal.
4. The learned counsel for the petitioner further submitted that the
petitioner had filed an appeal against the decree passed in the counter
claim which was registered as RFA No.6/2020 before this Court but the
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said appeal was withdrawn with liberty which was permitted by this Court
vide an order dated 05.02.2020.
5. This Court has duly heard the learned counsels appearing on behalf
of the parties and given anxious consideration to the submissions so
made by the learned counsel appearing on behalf of the petitioner and
the respondent.
6. At the outset, this Court finds it pertinent to observe that
proceedings under Section 6 of the Act of 1963 are in the nature of
summary proceedings. However, the learned Trial Court i.e. the Court of
the learned Civil Judge (Senior Division) No.2, Kamrup (M) at Guwahati
had converted the proceedings under Section 6 into a proper suit
proceedings by allowing the respondent herein to file a counter claim. Be
that as it may, the counter claim which was filed for specific performance
of the agreement for sale dated 14.11.2007 was decreed. The manner in
which the learned Trial Court conducted the proceedings under Section 6
of the Act of 1963 filed by the petitioner have resulted in the state of
confusion as to what the petitioner is required to do. The resultant effect
is that the petitioner had filed an appeal being RFA No.6/2020 against
the decree so passed in the counter claim but later on, taking into
account the instant proceedings which was also filed under Section 115
of the Code, the petitioner withdrew the said appeal with liberty. The
anomaly has arisen in view of the mistake on the part of the learned Trial
Court to allow Section 6 of the Act of 1963 proceedings to be converted
into a normal suit proceedings thereby permitting a counter claim to be
filed. Under such circumstances, this Court is of the opinion that certain
corrective measures is required to be made.
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7. This Court further takes note of the submission made by the learned
counsel for the petitioner who submits that as on date, the petitioner has
title over the suit property and as such the petitioner can very well file a
suit for recovery of possession based on title.
8. This Court further takes note of that the appeal though filed was
withdrawn with liberty on the ground that the petitioner bonafidely
believed that the present proceedings would be the proper proceedings
for challenging the judgment and decree dated 20.06.2019.
9. Taking into account the above, this Court therefore disposes of the
instant petition with the following observations and directions:
(i) The petitioner herein would be at liberty to file a suit for recovery of
possession based on title before the Court of the competent jurisdiction.
(ii) The petitioner is given the liberty to file a fresh appeal against the
judgment and decree dated 20.06.2019 insofar as the counter claim is
concerned. The period from the date of filing the instant proceedings i.e.
03.09.2019 till date be excluded while computing the period of limitation
for filing the appeal against the judgment and decree dated 20.06.2019
in respect to the counter claim.
(iii) The judgment and decree of the learned Trial Court dated
20.06.2019 passed in Title Suit No.405/2014 insofar as the suit is
concerned shall not prejudice the petitioner in the suit to be filed for
which the liberty is being granted and the judgment and decree dated
20.06.2019 insofar as the suit is concerned and not the counter claim
shall be construed as a decision only in respect to proceedings under
Section 6 of the Act of 1963 and nothing more.
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10. The Registry is directed to forthwith return the LCR to the Court
below.
JUDGE
Comparing Assistant
