Page No.# 1/9 vs Md Haji Ismail Ali Mazumder
2025 Latest Caselaw 5016 Gua

Gauhati High Court

Page No.# 1/9 vs Md Haji Ismail Ali Mazumder on 27 May, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                             Page No.# 1/9

GAHC010194172023




                                                       2025:GAU-AS:7001

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

                        Case No. : RSA/149/2023

         ON THE DEATH OF AFTAB HUSSAIN MAZUMDER HIS LEGAL HEIRS
         RASHIDA KHATUN MAZUMDER AND ORS.
         W/O LATE AFTAB HUSSAIN MAZUMDER, RESIDENT OF VILLAGE
         DOLIDAHAR GRANT, PO JANKIBAZAR, PS PANCHGRAM, DIST
         HAILAKANDI, ASSAM

         2: SURATUN NESSA MAZUMDER
          D/O LATE AFTAB HUSSAIN MAZUMDER

         RESIDENT OF VILLAGE DOLIDAHAR GRANT
         PO JANKIBAZAR
         PS PANCHGRAM
         DIST HAILAKANDI
         ASSAM

         3: ALI AHMED MAZUMDER

          S/O LATE AFTAB HUSSAIN MAZUMDER

         RESIDENT OF VILLAGE DOLIDAHAR GRANT
         PO JANKIBAZAR
         PS PANCHGRAM
         DIST HAILAKANDI
         ASSAM

         4: HANIF AHMED MAZUMDER
          S/O LATE AFTAB HUSSAIN MAZUMDER

         RESIDENT OF VILLAGE DOLIDAHAR GRANT
         PO JANKIBAZAR
         PS PANCHGRAM
         DIST HAILAKANDI
         ASSAM
                                       Page No.# 2/9

5: LUTFA BEGUM MAZUMDER
 D/O LATE AFTAB HUSSAIN MAZUMDER

RESIDENT OF VILLAGE DOLIDAHAR GRANT
PO JANKIBAZAR
PS PANCHGRAM
DIST HAILAKANDI
ASSAM

6: HUSSAIN AHMED MAZUMDER
 S/O LATE AFTAB HUSSAIN MAZUMDER

RESIDENT OF VILLAGE DOLIDAHAR GRANT
PO JANKIBAZAR
PS PANCHGRAM
DIST HAILAKANDI
ASSAM

7: NAZMUL HUSSAIN MAZUMDER
 S/O LATE AFTAB HUSSAIN MAZUMDER

RESIDENT OF VILLAGE DOLIDAHAR GRANT
PO JANKIBAZAR
PS PANCHGRAM
DIST HAILAKANDI
ASSAM

8: RUHANA BEGUM MAZUMDER
 D/O LATE AFTAB HUSSAIN MAZUMDER

RESIDENT OF VILLAGE DOLIDAHAR GRANT
PO JANKIBAZAR
PS PANCHGRAM
DIST HAILAKANDI
ASSAM

9: NOZRANA BEGUM MAZUMDER
 D/O LATE AFTAB HUSSAIN MAZUMDER

RESIDENT OF VILLAGE DOLIDAHAR GRANT
PO JANKIBAZAR
PS PANCHGRAM
DIST HAILAKANDI
ASSAM

10: AMINA KHATUN MAZUMDER
W/O LATE ABDUL HANNAN MAZUMDER
RESIDENT OF UTTAR KANCHANPUR
                                   Page No.# 3/9

PART II
PO JANKIBAZAR
PS PANCHGRAM
DIST HAILAKANDI
ASSAM

11: ANOWARA BEGUM MAZUMDER
 D/O LATE ABDUL HANNAN MAZUMDER
RESIDENT OF UTTAR KANCHANPUR
 PART II
 PO JANKIBAZAR
 PS PANCHGRAM
 DIST HAILAKANDI
ASSAM

12: ABDUS SUBHAN MAZUMDER
 S/O LATE ABDUL HANNAN MAZUMDER
RESIDENT OF UTTAR KANCHANPUR
 PART II
 PO JANKIBAZAR
 PS PANCHGRAM
 DIST HAILAKANDI
ASSAM

13: ABDUR ROUF MAZUMDER
 S/O LATE ABDUL HANNAN MAZUMDER
RESIDENT OF UTTAR KANCHANPUR
 PART II
 PO JANKIBAZAR
 PS PANCHGRAM
 DIST HAILAKANDI
ASSAM

14: ABDUL KUDDUS MAZUMDER
 S/O LATE ABDUL HANNAN MAZUMDER
RESIDENT OF UTTAR KANCHANPUR
 PART II
 PO JANKIBAZAR
 PS PANCHGRAM
 DIST HAILAKANDI
ASSAM

15: ABDUS SALAM MAZUMDER
 S/O LATE ABDUL HANNAN MAZUMDER
RESIDENT OF UTTAR KANCHANPUR
 PART II
 PO JANKIBAZAR
 PS PANCHGRAM
                                                                           Page No.# 4/9

          DIST HAILAKANDI
          ASSAM

          16: FATIMA BEGUM MAZUMDER
           D/O LATE ABDUL HANNAN MAZUMDER
          RESIDENT OF UTTAR KANCHANPUR
           PART II
           PO JANKIBAZAR
           PS PANCHGRAM
           DIST HAILAKANDI
          ASSA

          VERSUS

          MD HAJI ISMAIL ALI MAZUMDER
          S/O LATE HAJI MOSAID ALI MAZUMDER
          RESIDENT OF VILLAGE PANCHGRAM, PS PANCHGRAM, DIST
          HAILAKANDI



                 For the Appellant(s)     : Mr. N. H. Mazarbhuiyan, Advocate
                 For the Respondent(s)    : Mr. M. J. Quadir, Advocate

                       Date of Hearing               : 27.05.2025
                       Date of Judgment               : 27.05.2025




                                BEFORE
                 HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                          JUDGMENT AND ORDER (ORAL)

Heard Mr. N. H. Mazarbhuiyan, the learned counsel appearing on behalf of the appellants and Mr. M. J. Quadir, the learned counsel appearing on behalf of the respondents.

2. This is an appeal under Section 100 of the Code of Civil Procedure, 1908 (for short 'the Code') challenging the order dated 10.08.2023 passed in Page No.# 5/9

Misc. (J) Case No.11/2023 arising out of Title Appeal No.03/2023 by the learned Court of the Additional District Judge, Hailakandi (hereinafter referred to as 'the First Appellate Court') whereby the application filed under Section 5 of the Limitation Act, 1963 read with Order XLI Rule 3A of the Code was rejected and thereby confirming the judgment and decree passed by the learned Trial Court dated 28.02.2020 in Title Suit No.03/2016.

3. It is taken note of that vide an order dated 31.08.2023, two substantial questions of law were formulated by the learned Coordinate Bench of this Court which are reproduced herein under:

"(1) The substantial questions of law arises as to whether the First Appellate Court correctly adjudicated upon and decided the application filed under section 5 of the Limitation Act, 1963 taking into consideration all facts and circumstances as pleaded by the appellants in the same?

(2) As to whether the First Appellate Court committed gross miscarriage of justice by not taking into consideration, the merit of the appeal as a condition precedent while rejecting the condonation application?"

4. The question arises as to whether the two substantial questions of law are at all involved in the instant appeal.

5. Mr. N. H. Mazarbhuiya, the learned counsel for the appellants as well as Mr. M. J. Quadir, the learned counsel for the respondent submitted that both the substantial questions of law so formulated are in fact one and the same. They submitted that the question before this Court is whether the Page No.# 6/9

jurisdiction so exercised by the learned First Appellate Court while deciding the application under Section 5 of the Limitation Act, 1963 was in accordance with law and by taking into account the various settled principles of law.

6. It is relevant to take note of that the suit so filed by the respondent herein as plaintiff was valued at Rs. 10 lakhs. The said suit was filed before the Court of the learned Civil Judge (Senior Division), Hailakandi. Vide a judgment and decree dated 28.02.2020, the learned Trial Court decreed the suit in favour of the plaintiff. The operative portion of the judgment and decree being at paragraph No.31 is reproduced herein under:

"31. In result, issue decree for declaration of right, title and interest of the plaintiff in schedule-I land and to have survey over the suit land under schedule-1 by the competent Government authority to get demarcation of the total 20 bigha of land including 3 kata of land under schedule-1(A) to get possession over the same, if found that plaintiff is illegally dispossessed"

7. It is relevant to take note of that the period of limitation for filing an appeal against a judgment and decree passed by the learned Trial Court in terms with Article 116 of the Schedule to the Limitation Act, 1963 is different depending on the aspect where the appeal is filed. In terms with the first part of Article 116, when an appeal against a decree or order is filed before the High Court, the period of limitation is 90 days from the date of the decree or order and if the appeal is filed before any other Court as per the second part of Article 116, it is 30 days from the date of the decree and order. Taking into account the said provision, the period of limitation for filing Page No.# 7/9

the appeal in the present case would be 30 days in case the appeal was preferred before the learned District Judge, Hailakandi and 90 days if it was preferred before this Court.

8. It is further taken note of that during that period on account of the COVID-19 pandemic, the Supreme Court had passed various orders thereby extending the period of limitation. The order of the Supreme Court dated 10.01.2022 in Suo Motu Writ Petition (C) No.3/2020 is relevant for that purpose inasmuch as, it is stipulated therein that the period from 15.03.2020 till 28.02.2022 shall be excluded for the purpose of limitation and if the limitation would have expired during the period between 15.03.2020 to 28.02.2022, all persons shall have limitation period of 90 days from 01.03.2022. Under such circumstances, the appellants herein could have preferred the appeal before this Court and before the learned District Judge, Hailakandi within 30.06.2022. In that respect, it is very pertinent to take note of that the appellants stated in their application under Section 5 of the Limitation Act, 1963 that they had handed over the brief for preparation of an appeal in the month of March, 2022 to one Md. Mehbub Hussain Mazumder (Shajal), Advocate of the Silchar Bar Association before this Court and he had undertaken to do the same. However, in the month of November, 2022, the said Advocate informed the appellants that the jurisdictional Court for filing the appeal changed from the High Court to the Court of the District Judge in view of the amendment to the Bengal, Assam, Agra Civil Courts Act, 1887 and accordingly, he returned the brief on 16.12.2022 and thereupon the appellants preferred the appeal on 03.01.2023.

Page No.# 8/9

9. This Court further takes note of that it is a well settled principle of law that the Court while exercising the jurisdiction under the Section 5 of the Limitation Act, 1963 has to exercise the jurisdiction liberally. Taking into account that the delay in preferring the appeal is primarily on account of the mistaken advice given by the Advocate, it is the opinion of this Court that the learned First Appellate Court ought to have condoned the delay in preferring the appeal against the judgment and decree dated 28.02.2020 taking into account the well settled principles of law.

10. Therefore, it is the opinion of this Court that the two substantial questions of law so formulated by the learned Coordinate Bench of this Court are duly involved in the instant appeal. Accordingly, the appeal stands allowed thereby interfering with the order dated 10.08.2023 in Misc. (J) Case No.11/2023 arising out of Title Appeal No.03/2023.

11. This Court further duly takes note of that the two substantial questions of law only pertains to the order dated 10.08.2023 passed in Misc. (J) Case No.11/2023 and has no reference to the decision on merits in respect to the judgment and decree dated 28.02.2020 passed by the learned Trial Court.

12. Considering the above, as this Court has interfered with the order dated 10.08.2023 passed in Misc. (J) Case No.11/2023, this Court condones the delay and restores the appeal being Title Appeal No.03/2023 to the file of the learned Additional District Judge, Hailakandi and remands the matter back to the learned Additional District Judge, Hailakandi for decision of the said appeal on merits.

Page No.# 9/9

13. Accordingly, the instant appeal stands disposed of.

14. Taking into account that the appeal is being remanded back to the learned First Appellate Court i.e. the Court of the learned Additional District Judge, Hailakandi to decide the Title Appeal No.03/2023 on merits, this Court further in exercise of the powers under Order XLI Rule 26 of the Code directs both the parties to appear before the learned First Appellate Court on 07.07.2025.

15. The Registry shall ensure that the records of the learned Trial Court as well as the learned First Appellate Court are returned to the learned First Appellate Court forthwith ensuring that on the next date so fixed hereinabove, the records are before the learned First Appellate Court. In that regard if necessary, the Registry shall employ the services of a special messenger.

16. There shall be no order as to costs.

JUDGE

Comparing Assistant