Gauhati High Court

Samsul Hoque vs Md Wahidur Rahman And Ors on 24 November, 2025

                                                                  Page No.# 1/12

GAHC010181902025




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

                         Case No. : I.A.(Civil)/2782/2025

         SAMSUL HOQUE
         S/O LATE ROFATULLAH MUNSHI, R/O VILL. PARERCHAR PART II, P.O. AND
         P.S. ABHAYAPURI, DIST. BONGAIGAON, ASSAM, PIN 783380



         VERSUS

         MD WAHIDUR RAHMAN AND ORS
         MD SAWKAT ALI

         2:ON THE DEATH OF MOKRAM ALI HIS LEGAL HEIRS
          BONGAIGAON

         2.1:STRUCK OFF.
         VIDE HON'BLE COURTS ORDER DTD. 27/08/2025 PASSED IN IA (C)
         NO.2782/25

         2.2:SON MOINUL HAQUE
          DIST. BONGAIGAON

         2.3:SON MAMINUL HAQUE

          DIST. BONGAIGAON

         2.4:AST. MONOWARA BEGUM

          DIST. BONGAIGAON

         2.5:DAUGHTER MASLEEMA BEGUM
          DIST. BONGAIGAON

         3:MD. SAUKAT ALI
          S/O LATE RAFETULLAH MUNSHI
                                                                        Page No.# 2/12

             ALL ARE R/O VILL. PARERCHAR PART II
             P.S. AND P.O. ABHAYAPURI
             DIST. BONGAIGAON
             ASSAM
             PIN 78338

Advocate for the Petitioner   : ALHAJJ I UDDIN, MRS. S ROY,MR. MASUM ALAM,M
ALAMGEER,MR. A ALAM

Advocate for the Respondent : MS. R CHOUDHURY, FOR CAVEATOR,MD. MEMON AHMED




             Linked Case : I.A.(Civil)/3379/2025

            SAMSUL HOQUE
            SON OF LATE ROFATULLAH MUNSHI
            RESIDENT OF VILLAGE- PARERCHAR PART-II
            POST OFFICE AND POLICE STATION- ABHAYAPURI
            ASSAM
            PIN- 783380.


             VERSUS

            MD WAHIDUR RAHMAN
            SON OF MD SAWKAT ALI
            RESIDENTS OF VILLAGE-PARERCHAR PART-II
            POLICE STATION AND POST GO NOTAR MANISHITA DEKA GUW ANAT
            REGD.NO.-39484 OFFICE-ABHSYAPURI
            DISTRICT-BONGAIGAON
            ASSAM. PIN-783380.

            2:ON THE DEATH OF MOKRAM ALI HIS LEGAL HEIRS
            RESIDENTS OF VILLAGE-PARERCHAR PART-II
             POLICE STATION AND POST GO NOTAR MANISHITA DEKA GUW ANAT
            REGD.NO.-39484 OFFICE-ABHSYAPURI
             DISTRICT-BONGAIGAON
            ASSAM. PIN-783380.

            2.1:(A) MST KHODEJA KHATUN
            W/O MOKRAM ALI RESIDENTS OF VILLAGE-PARERCHAR PART-II
            POLICE STATION AND POST GO NOTAR MANISHITA DEKA GUW ANAT
            REGD.NO.-39484 OFFICE-ABHSYAPURI
            DISTRICT-BONGAIGAON
                                                         Page No.# 3/12

ASSAM. PIN-783380.

2.2:B) MOINUL HAQUE
S/O- MOKRAM ALI RESIDENTS OF VILLAGE-PARERCHAR PART-II
POLICE STATION AND POST GO NOTAR MANISHITA DEKA GUW ANAT
REGD.NO.-39484 OFFICE-ABHSYAPURI
DISTRICT-BONGAIGAON
ASSAM. PIN-783380.

2.3:(C) MAMINUL HAQUE
S/O- MOKRAM ALI RESIDENTS OF VILLAGE-PARERCHAR PART-II
POLICE STATION AND POST GO NOTAR MANISHITA DEKA GUW ANAT
REGD.NO.-39484 OFFICE-ABHSYAPURI
DISTRICT-BONGAIGAON
ASSAM. PIN-783380.

2.4:(D) MONOWARA BEGUM
C/O- MOKRAM ALI RESIDENTS OF VILLAGE-PARERCHAR PART-II
POLICE STATION AND POST GO NOTAR MANISHITA DEKA GUW ANAT
REGD.NO.-39484 OFFICE-ABHSYAPURI
DISTRICT-BONGAIGAON
ASSAM. PIN-783380.

2.5:(E) MASLEEMA BEGUM
D/O MOKRAM ALI RESIDENTS OF VILLAGE-PARERCHAR PART-II
POLICE STATION AND POST GO NOTAR MANISHITA DEKA GUW ANAT
REGD.NO.-39484 OFFICE-ABHSYAPURI
DISTRICT-BONGAIGAON
ASSAM. PIN-783380.

 3:MD SAUKAT ALI
SON OF LATE RAFETULLAH MUNSHI RESIDENTS OF VILLAGE-
PARERCHAR PART-II
 POLICE STATION AND POST GO NOTAR MANISHITA DEKA GUW ANAT
REGD.NO.-39484 OFFICE-ABHSYAPURI
 DISTRICT-BONGAIGAON
ASSAM. PIN-783380.
 ------------
Advocate for : ALHAJJ I UDDIN
Advocate for : MS. R CHOUDHURY appearing for MD WAHIDUR RAHMAN



Linked Case :

SAMSUL HOQUE
ASSAM
                                                                   Page No.# 4/12


         VERSUS

         MD WAHIDUR RAHMAN AND ORS
         ASSAM


         ------------
         Advocate for : REHANA MOMTAZ LASKAR
         Advocate for : appearing for MD WAHIDUR RAHMAN AND ORS



                               BEFORE
             HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                   ORDER

Date : 24.11.2025

1. Heard Ms. S. Roy, the learned counsel for the applicant. Also heard Ms. R. Choudhury, the learned counsel for the respondents.

2. This Interlocutory Application has been filed by the applicant, namely, Samsul Hoque, under Section 5 of the Limitation Act, 1963 for condonation of the delay of 83 days in preferring the connected Regular Second Appeal.

3. The facts relevant for consideration of the instant Interlocutory Application, in brief, are that the applicant has submitted that the applicant has approached this court by filing the connected Regular Second Appeal, wherein he has impugned the judgment and decree dated 20.02.2025, passed by the court of the learned Civil Judge, Senior Division, Bongaigaon, in Title Appeal No. 4/2017, whereby the Appellate Court while dismissing the appeal with cost, has upheld the judgment dated 02.02.2017, passed by the court of learned Munsiff, North Salmara, Abhayapuri in Title Suit No.45/2013, whereby the suit filed by the present appellant was dismissed and Page No.# 5/12

the counter claim filed by the respondent No. 1 (defendant No. 1) was decreed.

4. The learned counsel for the applicant has submitted that the delay of 83 days in approaching this court in filing the connected Regular Second Appeal has occasioned due to the fact that the applicant came to know about the impugned judgment and decree dated 20.02.2025, in the last part of the month of June 2025 only.

5. She further submits that the engaged counsel for the applicant before the First Appellate Court, namely, Mr. Khurshid Raja did not inform the applicant about the date on which the judgment of the first appeal was scheduled to be delivered, i.e. 20.02.2025. It was also not informed by the counsel that the appeal preferred by the present applicant has been dismissed by the First Appellate Court. She further submits that the present applicant came to know about the judgment in the last part of June only when he received the notice of Title Execution Case No. 05/2025.

6. She submits that immediately, thereafter, the applicant applied for certified copy of the impugned judgement dated on 28.07.2025 and approached this court by filing the connected Regular Second Appeal thereafter.

7. She submits that the applicant was prevented from approaching this court within the prescribed period of limitation as the circumstances were beyond his control, as he was unaware about the passing of the impugned judgment and decree in the month of February 2025.

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8. She further submits that the present applicant has also lodged a complaint against his engaged counsel namely, Md. Khurshid Raja before the Abhayapuri Bar Association on 04.08.2024 and to substantiate her submission, she referred to the copy of said complaint petition annexed to the instant application.

9. She submits that the other grounds of delay caused from the date of receipt of certified copy of the impugned judgment till filing of the instant connected Regular Second Appeal has been explained in paragraph No. 6 of the instant Interlocutory Application. She further submits that a litigant may not be made to suffer due to default of his engaged counsel. She submits that in the instant case, the engaged counsel for the petitioner has defaulted in not informing the date of the delivery of judgment as well as fate of the first appeal filed by the applicant to him within due time, thereby causing delay, on the part of the applicant, in approaching this court within the prescribed period of limitation.

10. She further submits that under such circumstances, the court should consider the application filed by the applicant for condoning the delay by taking a liberal approach as the delay involved in this case is only of 83 days.

11. In support of her submission, the learned counsel for the applicant has cited a ruling of the Apex Court in the case of " Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and another" reported in (2010) 5 SCC 459.

12. On the other hand, Ms. R. Choudhury, the learned counsel for the Page No.# 7/12

respondents has vehemently opposed the prayer for condoning the delay of 83 days in this case.

13. She submits that the applicant cannot absolve himself by putting entire blame on his engaged counsel. She submits that as the appeal was filed by the present applicant, it was for him to have remained diligent and to pursue and to keep track of the appeal filed by him.

14. She submits that apart from merely putting blame on his engaged counsel, the applicant has not even explained the entire period of delay. She also submits that the conduct of the applicant is not as such so that this court may take a liberal view of the matter in as much as the applicant made a false statement in his application by stating therein that he came to know about the impugned judgment and decree only in the last part of the month of July 2025. She submits that it is apparent from the order dated 04.07.2025 passed in Title Execution Case No. 5/2025 by the Executing Court that the judgment dater even before 04.07.2025 resisted the execution of the decree when the bailiff of the court had declared the possession of the decretal land to the decree holder. She further submits that when this point was raised by the respondents in their written objection, only thereafter, an affidavit-in-reply was filed by the present applicant, wherein it has been stated that due to typographical mistake it has been stated in their application that the applicant came to know about the impugned judgment and decree in the month of July 2025, whereas actually it should have been in the last part of June 2025.

15. The learned counsel for the respondents submits that even if the Page No.# 8/12

contentions raised by the applicant in his affidavit-in-reply is accepted, still it appears that the applicant applied for certified copy of the impugned judgment only on 28.07.2025 and the period in between the last part of June 2025 till the date of applying for the certified copy has not been explained in the application for condonation of delay.

16. She submits that the contentions raised in the affidavit-in-reply by the present applicant is only an attempt to cover up the valid objection raised by the respondents in this case.

17. She further submits that it is obligatory for the applicant to explain properly as to the facts which constitute sufficient cause which prevented him from approaching this court within the prescribed period of limitation, however, the applicant has failed to show any sufficient cause which may justify condonation of delay of 83 days. Therefore, she submits that the application filed by the present applicant for condonation of delay is liable to be dismissed. In support of her submissions learned counsel for the respondent has cited following rulings:

a. Basawaraj & Another Vs. Special Land Acquisition Officer reported in (2013) 14 SCC 81

b. Thirunagalingam Vs. Lingeswaran and Another reported in 2025 0 INSC 672

c. Rajneesh Kumar & Another Vs. Ved Prakash reported in 2024 0 Supreme SC 1101

18. I have considered the submissions made by the learned counsel Page No.# 9/12

for both sides and have gone through the materials available on record including the rulings cited by learned counsel for both sides.

19. In the instant case, the delay of 83 days has been caused in filing the connected Regular Second Appeal by the applicant. On careful perusal of the grounds mentioned by the applicants in his application, it appears that he has mainly attributed the delay due to the non-communication of the date of delivery of judgment in the title suit fixed by the trial court by his engaged counsel to him.

20. Further, it also appears that the applicant has also alleged that even after delivery of the judgment and dismissal of the appeal, the fate of the same was not informed by his counsel to him. The applicant has alleged professional misconduct on the part of his engaged counsel and to that effect, a complaint has also been lodged by him in the Abhayapuri bar.

21. It further appears on combined reading of the application for condoning the delay as well as the additional affidavit filed by the present applicant that the applicant came to know about the fate of his appeal only when he received notice in the title execution case.

22. It is true that a litigant cannot put entire blame on his advocate for failing to approach the court within the prescribed period of limitation for seeking a statutory remedy. However, it is also a fact that in civil appeals, the necessity of parties appearing in person is not there and the litigant normally keep track of their case through the information given to them by their engaged counsel.

23. In the instant case, the main crux of the grounds shown by the Page No.# 10/12

applicant in his application for condoning the delay is that he was not informed about the fate of his appeal by the engaged counsel, therefore, he defaulted in approaching this court within the prescribed period of limitation for filing the connected Regular Second Appeal. Whether the applicant was diligent or indolent, has to be determined depending upon the facts of this case. In the case of Rajneesh Kumar & Another Vs. Ved Prakash (Supra), which is relied upon by the learned counsel for the respondent in opposing the prayer for condonation on the ground that a litigant cannot put his entire blame on the counsel and it is for him to remain equally vigilant about the judicial proceeding pending in the court, the delay was of 534 days, which is comparatively more and considerably large period of delay, whereas, in the instant case, the delay is only of 83 days.

24. Moreover, in the instant case, considering the fact that the applicant has even lodged a formal complaint against his engaged counsel, the contentions raised by the applicant that he was not intimated about the fate of the appeal filed by him before the First Appellate Court cannot be totally brushed aside in the plea that the applicant is trying to put blame on the counsel. It appears that if the contentions of learned counsel for the parties are to be believed then, it may be safely assumed that the applicant came to know about the fate of the title appeal filed by him before the court of learned Civil Judge Senior Division, Bongaigaon in the last part of June, whereas he had filed the instant appeal on 12.08.2025, i.e., within less than two months from the date of getting the information Page No.# 11/12

about dismissal of his appeal.

25. Under such circumstances, the delay in the instant case cannot be regarded as an inordinate delay and the ground that the applicant was prevented from approaching this court within the prescribed period of limitation due to the fact that he was not intimated about the fate of the Title Appeal No. 04/2017 by his engaged counsel cannot be totally brushed aside and the same may be regarded as a sufficient cause which prevented the applicant from approaching the court within the prescribed period of limitation in filing the connected regular second appeal.

26. The plea taken by the counsel for the respondent that the applicant has failed to properly explain the delay in applying for the certified copy after coming to know about the fate of the Title Appeal No. 04/2017 in the last part of June has not been explained may be viewed liberally in view of the fact that ultimately after coming to know about the fate of the Title Appeal No. 04/2017, the applicant approached this court within less than two months thereof.

27. Hence, there does not appear to be any malafide in approaching this court belatedly and under such circumstances, this court is inclined to take a liberal view of the matter and condone the delay of 83 days in preferring the connected Regular Second Appeal.

28. This Interlocutory Application is, accordingly, disposed of.

29. The Registry is directed to register the connected Regular Second Appeal and list the same for admission in the next week on a date to be fixed by it.

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JUDGE

Comparing Assistant