Shri Sanjay Kumar Baruah vs Shri Sunil Kumar Bagri on 4 May, 2026

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GAHC010080532026




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

                                    Case No. : FAO/26/2026

            SHRI SANJAY KUMAR BARUAH
            SON OF LATE BIRENDRA KUMAR BARUAH, RESIDENT OF S.C. GOSWAMI
            ROAD, PANBAZAR, P.S. - PANBAZAR, GUWAHATI, DISTRICT-
            KAMRUPMETRO PHONE NUMBER 9954545810



            VERSUS

            SHRI SUNIL KUMAR BAGRI
            SON OF LATE MUL CHAND BAGRI, RESIDENT OF CHANDMARI,
            NIZARAPAR ROAD, OPPOSITE CHANDMARI TREASURY OFFICE, P.S-
            CHANDMARI, GUWAHATI DISTRICT-KAMRUP METRO, ASSAM

            2:SMTI URMILA BAGRI
            WIFE OF SHRI SUNIL KUMAR BAGRI
             RESIDENT OF CHANDMARI
             NIZARAPAR ROAD
             OPPOSITE CHANDMARI TREASURY OFFICE
             P.S- CHANDMARI
             GUWAHATI DISTRICT-KAMRUP METRO
            ASSA

Advocate for the Petitioner   : MR A BHUYAN, G IMTIAZ,MR. A IKBAL,MR. N BHARALI

Advocate for the Respondent : MR. S M BARUAH, FOR CAVEATOR,MR. S K SINGHA,MR T K
DAS

             Linked Case : I.A.(Civil)/1351/2026

            SHRI SANJAY KUMAR BARUAH
            SON OF LATE BIRENDRA KUMAR BARUAH
            RESIDENT OF S.C. GOSWAMI ROAD
            PANBAZAR
                                                                        Page No.# 2/7

           P.S. - PANBAZAR
           GUWAHATI
           DISTRICT-KAMRUPMETRO PHONE NUMBER 9954545810


           VERSUS

          SHRI SUNIL KUMAR BAGRI
          SON OF LATE MUL CHAND BAGRI
          RESIDENT OF CHANDMARI
          NIZARAPAR ROAD
          OPPOSITE CHANDMARI TREASURY OFFICE
          P.S- CHANDMARI
          GUWAHATI DISTRICT-KAMRUP METRO
          ASSAM

          2:SMTI URMILA BAGRI
          WIFE OF SHRI SUNIL KUMAR BAGRI
           RESIDENT OF CHANDMARI
           NIZARAPAR ROAD
           OPPOSITE CHANDMARI TREASURY OFFICE
           P.S- CHANDMARI
           GUWAHATI DISTRICT-KAMRUP METRO
          ASSAM
           ------------
          Advocate for : MR A BHUYAN
          Advocate for : MR. S M BARUAH appearing for SHRI SUNIL KUMAR BAGRI



                                BEFORE
              HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                    ORDER

Date : 04.05.2026

1. Heard Mr. A. Ikbal, the learned counsel for the appellant. Also heard Mr. S. M. Baruah, the learned counsel for the caveator.

2. This appeal under Order 43 Rule 1 (d) read with Section 151 of the Code of Civil Procedure, 1908 has been filed by the appellant, Shri Sanjay Kumar Baruah, impugning the Order dated 20.01.2026 passed by the Court of the learned Civil Judge (Senior Division) No.3, Kamrup (Metro), Guwahati in Misc. Case No. 727/2017 arising out of Title Suit No. 410/2014 whereby the Page No.# 3/7

application filed by the present appellant under Order 9 Rule 13 of the Code of Civil Procedure, 1908 for setting aside ex-parte judgment and decree dated 22.04.2016 was dismissed.

3. The facts relevant for consideration of the instant appeal, in brief, are that the present respondents as plaintiffs had filed a title suit for specific performance of agreement for sale dated 21.12.2012 executed by the present appellant as well as the respondents and for permanent injunction. The said suit was filed before the Court of the learned Civil Judge (Senior Division) No.3, Kamrup (Metro), Guwahati and was registered as Title Suit No. 410/2014.

4. The summons was issued to the defendant (present appellant) in the aforesaid suit and when the appellant failed to appear before the Trial Court in spite of due service of summons, the suit proceeded ex-parte and ultimately, by judgment dated 22.04.2016, the suit was decreed ex-parte against the present appellant.

5. The learned counsel for the appellant has submitted that the present appellant approached the Trial Court by filing an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 for setting aside the ex- parte decree. In the said application, he took the plea that the summons in the aforesaid suit has never been served on the present appellant.

6. The learned counsel for the appellant further submits that since there was a delay in approaching the Court in filing the application for setting aside ex-parte decree, the present appellant had also filed an application under Section 5 of the Limitation Act, 1963, for condoning the delay in filing the application under Order 9 Rule 13 of the Code of Civil Procedure, 1908. He submits that the said application was registered as Petition No. 4032/2017.

7. The learned counsel for the appellant has submitted that since the Page No.# 4/7

plea of the present appellant before the Trial Court was that he never received summons and the process server had filed a wrong report of service without serving the summons on him and since one " Hazira" was also shown to have been filed in the Title Suit No. 410/2014 bearing the signatures of the present appellant, which he denies, the trial court considered it necessary to send the disputed signature of the appellant appearing on the overleaf of summons dated 16.02.2015 as well as disputed signatures of the appellant appearing on "Hazira" dated 18.03.2015 along with his admitted signatures appearing in the Vakalatnama to the forensic laboratory for examination and the present appellant was directed to take steps for sending his signatures to the forensic laboratory.

8. The learned counsel for the appellant has submitted that in compliance to the directions given by the Trial Court on 08.04.2019, the appellant has taken steps and his admitted signatures as well as disputed signatures were sent to the forensic laboratory for examination in pursuant to the direction of the Trial Court.

9. However, he submits that on several dates on which the Misc. Case No. 727/2017 was listed before the Trial Court, the report from the forensic laboratory was not received.

10. He submits that since the present appellant had taken steps for sending his disputed signature in compliance of the directions of the Trial Court, it was not within his control to get the report from the forensic laboratory, as the same is to be submitted by the forensic laboratory to the court directly.

11. The learned counsel for the appellant submits that on not receiving the report of the forensic laboratory within due time the Trial Court could have taken steps to show cause the concerned authorities of the forensic laboratory Page No.# 5/7

and to get the report therefrom. However, instead of doing so, it dismissed both the petitions filed by the present appellant namely, the prayer for condoning the delay of 30 days in preferring the application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 as well as the application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 itself shifting the blame of procuring the forensic laboratory report on the appellant.

12. He further submits that the Trial Court has also erred in not considering the application filed by the appellant under Section 5 of the Limitation Act, 1963 for condonation of delay on merits. He submits that even no Misc. Case was registered on the basis of application filed by the petitioner under Section 5 of the Limitation Act, 1963 only a Petition No. 4032/2017 was allotted to it.

13. On the other hand, Mr. S. M. Baruah, the learned counsel for the caveator has submitted that the ex-parte decree has been passed by the Trial Court in the year 2016 itself and the respondents, who are the decree holders are deprived of the fruits of the decree without any fault on their part. He, however, fairly submits that the application under Section 5 of the Limitation Act, 1963, filed by the present appellant, ought to have been disposed of on merits by the Trial Court.

14. I have considered the submissions made by learned counsel for both sides and have gone through the materials available on record.

15. It appears that by the impugned order dated 20.01.2026 passed in Misc. Case No. 727/2017, in connection with the Title Suit No. 410/2014, the Trial Court has dismissed both the applications filed by the present appellant, namely, the application under Section 5 of the Limitation Act, 1963, praying for condoning the delay in filing the application under Order 9 Rule 13 of the Code Page No.# 6/7

of Civil Procedure, 1908 as well as the application for setting aside ex-parte decree under Order 9 Rule 13 of the Code of Civil Procedure, 1908.

16. However, no reasons on merit were discussed by the Trial Court for dismissing the said petitions. It also appears that the accepted signatures as well as disputed signatures of the appellant on the summons as well as on "Hazira" were sent to the forensic laboratory not on any petition filed by the present appellant, but it was done suo motu by the Trial Court by its order dated 08.04.2019. Hence, this Court is of the considered opinion that it was incumbent on the Trial Court to procure the report of the forensic laboratory in respect of the examination of the signatures of the present appellant.

17. The Trial Court could have asked the authorities of forensic laboratories to show cause regarding non-compliance of the Court's order or could have taken any other coercive measure to procure the report. However, merely, due to non-receipt of forensic laboratory reports, it has erred in dismissing the application under Section 5 of the Limitation Act, 1963 as well as under Order 9 Rule 13 of the Code of Civil Procedure, 1908 filed by the present appellant without stating any reasons on merit.

18. In view of the discussions made in the foregoing paragraphs and the reasons stated therein, this Court, is of the considered opinion that the impugned order dated 20.01.2026 is liable to be interfered. Same is, accordingly, set aside.

19. The matter is remanded to the Trial Court.

20. The Trial Court shall take all steps to get the report of examination of the signatures of the appellant collected from forensic laboratory at the earliest and, thereafter, after giving opportunity to both sides shall dispose of the application filed by the appellant under Section 5 of the Limitation Act, 1963 Page No.# 7/7

as well as under Order 9 Rule 13 of the Code of Civil Procedure, 1908. It shall make all endeavors to dispose of both the applications as expeditiously as possible, preferably within three months from the date of this order.

21. This appeal is, accordingly, disposed of.

JUDGE

Comparing Assistant