GAUHATI HIGH COURT ISSUES ORDER ON SMTI RINKU DAS V/S SMTI MANJU SEAL AND 25 ORS

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

1. Heard Ms. R. Choudhury, the learned counsel appearing on behalf of the appellant and Mr. A. Sattar, the learned counsel who appears on behalf of the respondents.

2. This is an Appeal preferred under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the Code') challenging the order dated 31.08.2017 passed in petition No.443/2015 dated 30.01.2015 arising out of Title Appeal No.12/2017 whereby the petition No.443/2015 which was an application filed under Section 5 of the Limitation Act, 1963 (for short, 'the Act of 1963) read with Order XLI Rule 3A of the Code was rejected and thereby leading to the dismissal of the Appeal being Title Appeal No.12/2015 and the confirmation of the judgment and decree dated 08.09.2014 in Title Suit No.498/2010.

3. It is relevant to take note of that vide an order dated 04.12.2017, the learned Coordinate Bench of this Court had admitted the Appeal by formulating two substantial questions of law which reads as under:-

1) Whether the learned First Appellate Court committed error of law in not considering the grounds as stated by the appellant in the condonation of application as sufficient ground and rejecting the prayer for condoning the delay in preferring the title appeal and thereby not admitting the T.A. No. 12/2015?

2) Whether the learned Trial Court committed error of law in not considering and declaring any share to appellant/defendant No. 1 inasmuch as it is apparent on the face of record that the appellant is also a legal heir of Late Shri Hari Dayal Seal?

4. At the outset, it is being submitted at the bar by both the counsels appearing on behalf of the parties that the second substantial question of law so formulated is a ground of objection which was taken in Title Appeal No.12/2015. Keeping that in mind, this Court would take up the instant Appeal to adjudicate as to whether the two substantial questions of law are involved in the instant Appeal.

5. The first substantial question of law so formulated as stated herein above pertains to as to whether the learned First Appellate Court committed error of law in not considering the grounds stated by the appellant in the condonation application as sufficient ground and rejecting the prayer for condoning the delay in preferring the Title Appeal. It is relevant to take note of that on 08.09.2024, the learned Court of the Munsiff No.3, Kamrup (M) at Guwahati (for short, 'the learned Trial Court') had decreed the suit being Title Suit No.498/2010 in favour of the respondents herein who were the plaintiffs. It is the case of the appellant as can be seen from the application filed for condonation of delay that she came to learn about the said judgment and decree on 03.12.2014 when the Civil Nazir went for execution of the decree and thereupon the appellant applied the certified copy of the said judgment. It is also stated that the appellant on account of her eviction from the suit room was compelled to take shelter in a neighbouring house and because of such eviction being carried out, she fell ill. Upon recovery on 28.12.2014, the appellant met a counsel for legal redressal. The counsel advised the appellant to come on 02.01.2015 as the Civil Court was to remain in vacation during the winter recess. Accordingly, on 02.01.2015, the appellant engaged the counsel who after obtaining the certified copy on 19.01.2015 filed the Appeal. At this stage, it is relevant to observe that on account of a Notification issued by the Gauhati High Court in its administrative side, the Appeal was filed by the Appellant before the learned District Judge, Kamrup (Metro). The Appeal was endorsed to the learned Court of the Additional District Judge No.2, Kamrup (Metro) for disposal. As there was a delay of 102 days in filing the Appeal, an application under Section 5 of the Act of 1963 was filed seeking condonation of delay.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=eISc8sUCYnQFBVP%2BVeJCOHbJbzH62kwvjX5C1JXe6uYpOZgjAgUBcirbNjdA%2Fu2W&caseno=RSA/370/2017&cCode=1&cino=GAHC010244472017&state_code=6&appFlag=)

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