GUWAHATI, India, June 25 -- Gauhati High Court issued the following order on May 25:

1. 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 Misc. (J) Case No.9/2023 arising out of Title Appeal No.02/2023 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.4/2016.

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 "(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 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.43 is reproduced herein under:

"43. In result, issue decree for declaration of right, title and interest of the plaintiff in schedule-1 land and to have survey over the suit land under schedule-1 by the competent Government authority to get demarcation of the total 19 bigha 10 kata 8 chatak land including 3 kata of land under schedule-1(A) to get possession over the same, if found specific area of land with specific boundary in terms of exhibit-1 is not under possession of the plaintiff."

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 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.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=tuqye3PhFs%2BBDn75ghiOpCgCh%2B7R2ZhfCV0lc5qHMKay5df4qRpZLGP7OOpNIX%2Bt&caseno=RSA/148/2023&cCode=1&cino=GAHC010194152023&state_code=6&appFlag=)

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