On the Death of Moijuddin Sk @ Maorea His Legal Heirs and Ors v. On the Death of Sonaddi Sk His Legal Heirs and Ors

ORDER Date : 06-03-2024 This is an application under Section 115 of the Code of Civil Procedure, 1908 (for short, the Code) challenging the order dated 05.01.2022 passed by the learned Munsiff No. 2, Dhubri in Title Suit No. 402/2014 whereby an application being petition No. 884/20 under Order XXII Rule 9(2) of the Code as well as the petition No. 885/20 under Section 5 of the Limitation Act, 1963 (for short the Act) was allowed.

¶2Though the instant proceeding has been filed under Section 115 of the Code but taking into account that the instant proceeding ought to have been filed under Article 227 of the Constitution of India, and not under the provisions of Section 115 of the Code, this Court for the interest of justice, converts the instant proceeding to a proceeding under Article 227 of the Constitution.

¶3From the records, it is apparent that the plaintiff No. 1 in Title Suit No. 402/2014 had expired on 27.09.2018. Thereupon, on 06.02.2019 an application was filed for substituting the legal representatives of the plaintiff No. 1. However, this application being petition No. 676/2019 was rejected vide the Page No.# 9/10 order dated 09.12.2019 by the learned trial Court and it was further opined in the said order that the suit would abate against the deceased plaintiff No. 1 and shall proceed at the instance of the surviving plaintiffs. Immediately, thereupon, on 04.02.2020 the plaintiffs filed another application being petition No. 884/20 for setting aside the abatement under Order XXII Rule 9(2) of the Code and also an application being petition No. 885/20 under Section 5 of the Act for condoning the delay in filing the application for substitution.

¶4The learned trial Court vide the order dated 05.01.2022 although opined that there was no specific ground in the petition under Section 5 of the Act for which the delay must be condoned but for the ends of justice, allowed both the applications for condoning the delay as well as for setting aside the abatement vide the impugned order dated 05.01.2022 for which the instant proceeding has been filed.

¶5This Court have heard the learned counsel appearing on behalf of the petitioner as well as the learned counsel appearing on behalf of the respondent Nos. 6, 7 and 8. None has appeared on behalf of the respondent Nos. 1(a) to 1(e), 2, 3(b), 4(b) and 5(b). This Court having perused both the orders dated

09.12.2019 and 05.01.2022 is shocked and perplexed to take note of that when vide the order dated 09.12.2019 the application for substitution was rejected and there being no further proceeding against the said order dated 09.12.2019, how the learned trial Court could have allowed the setting aside of the abatement and condonation of delay vide the impugned order dated 05.01.2022 that too even after arriving at a finding that there was no specific ground in the petition under Section 5 of the Act for which the delay must be condoned.

¶6Taking into account the above, this Court is of the opinion that the exercise of the jurisdiction by the learned trial Court vide the order dated Page No.# 10/10

05.01.2022 is on the face of it suffers from exercising jurisdiction not conferred upon it by law as well also exercising jurisdiction with illegality and material irregularity, for which this Court sets aside the order dated 05.01.2022 passed by the learned Munsiff No. 2, Dhubri in Title Suit No. 402/2014. Consequently, the stay order dated 05.05.2022 passed by this Court stands vacated and parties are directed to appear before the learned trial Court on 03.04.2024.

¶7This Court, however, before parting would like to observe that setting aside of the order dated 05.01.2022 by this Court by the present order shall not however preclude the legal representatives of the plaintiff No. 1 to avail such remedies as permissible under the law against the order dated 09.12.2019, if so advised.

¶8With the above observations, this Civil Revision Petition stands disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/10 GAHC010082602022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCRP/44/2022o ONoTHEoDEATHoOFoMOIJUDDINoSKo@oMAOREAoHISoLEGALoHEIRSoANDo ORSo (LEGALoHEIRS) 1.1:oMD.oASKARoALI oS/OoLATEoMOIJUDDINoSK 1.2:oSMT.oSOKILAoBIBI oD/OoLATEoMOIJUDDINoSK oW/OoMOZIDoSK 1.3:oSMT.oOHILAoBEWA oD/OoLATEoMOIJUDDINoSK oW/OoLATEoJALALoSK 2:oONoTHEoDEATHoOFoKHATIMULLAoSK PageoNo.#o2/10 oHISoLEGALoHEIRS 2.1:oNASKERoALI oS/OoKHATIMULLAoSK 2.2:oOHARoALI oS/OoLATEoKHATIMULLAoSK 2.3:oBOSKERoALI oS/OoLATEoKHATIMULLAoSK 2.4:oOSKARoALI oS/OoLATEoKHATIMULLAoSK 2.5:oSAIBANIoBIBI oD/OoLATEoKHATIMULLAoSK oW/OoSIRABDIoSK PageoNo.#o3/10 3:oDARGIoSK oS/OoMOHADDIoSK 4:oONoTHEoDEATHoOFoSHASHIoSK oHISoLEGALoHEIRS 4.1:oMOINULoHAQUE oS/OoLATEoSHASHIoSK 4.2:oSOPIAoBIBI oD/OoLATEoSHASHIoSK oW/OoHAMEDoALI 5:oONoTHEoDETAHoOFoJAHARoUDDINoSK oHISoLEGALoHEIRS 5.1:oMONSERoALI oS/OoLATEoJAHARoUDDINoSK 5.2:oBANUoBIBI oD/OoLATEoJAHARUDDINoSK oW/OoKALIMUDDINoSK PageoNo.#o4/10 6:oONoTHEoDEATHoOFoFAKARUDDINoSK oHISoLEGALoHEIRS 6.1:oFAZORoALIoSK oS/OoLATEoFAKARUDDINoSK 6.2:oSAMSERoALI oS/OoLATEoFAKARUDDINoSK 6.3:oTAMSERoALI oS/OoLATEoFAKARUDDINoSK 6.4:oMOJIRANoBIBI oD/OoLATEoFAKARUDDINoSK oW/OoJABBARoALI 7:oONoTHEoDEATHoOFoPAGLAoSK oHISoLEGALoHEIRS PageoNo.#o5/10 7.1:oKHATUDDINoSK oS/OoLATEoPAGLAoSK 7.2:oAFZALoALI oS/OoLATEoPAGLAoSK 7.3:oBUCHIoBIBI oD/OoLATEoPAGLAoSK 7.4:oOHIRANoBIBI oD/OoLATEoPAGLAoSK oW/OoNURoNABI 7.5:oOHIMANoBIBI oD/OoLATEoPAGLAoSK oW/OoABUoSK 7.6:oJOHIRANoBIBI PageoNo.#o6/10 oD/OoLATEoPAGLAoSK oW/OoSAIYEDoALI oASSAo VERSUSo ONoTHEoDEATHoOFoSONADDIoSKoHISoLEGALoHEIRSoANDoORSo (LEGALoHEIRS) 1.1:SABJANoBEWA oW/OoLATEoSONADDIoSK oHASDAHAoPART-III 1.2:SARPAToALI oS/OoLATEoSONADDIoSK oHASDAHAoPART-III 1.3:SAPORoALI oS/OoLATEoSONADDIoSK oHASDAHAoPART-III 1.4:SOLEMAoBIBI oD/OoLATEoSONADDIoSK oW/OoHOSSENoALI oHASDAHAoPART-I 1.5:SOLEMAoBIBI PageoNo.#o7/10 oD/OoLATEoSONNADIoSK oW/OoKASHEMoALI oVILL-DHARMASALAoPART-IV oP.O.-DHARMASALA oPIN-783325 2:MAZIBARoRAHMAN oS/OoLATEoHIKMAToALI oVILL-KISMAToHASDAHAoPART-III 3:ONoTHEoDEATHoOFoKANDURAoSK oHISoLEGALoHEIRS 3.2:JOLAoSK oS/OoLATEoKANDURAoSK oVILL-DHARMASALA oP.O.-DHARMASALA oPIN-783325 4:ONoTHEoDEATHoOFoTOMIZoUDDIN oHISoLEGALoHEIRS 4.2:TOSKAoSK oS/OoLATEoTOMIZoUDDIN oVILL-DHARMASALA oP.O.-DHARMASALA oPIN-783325 5:ONoTHEoDEATHoOFoEKABULLAHoSK oHISoLEGALoHEIRS 5.2:TAHERoALI oS/OoLATEoEKABULLAHoSK oVILL-DHARMASALA oP.O.-DHARMASALA oPIN-783325 6:THEoSTATEoOFoASSAM oREPRESENTEDoBYoTHEoCOLLECTORoOFoDHUBRI Page No.# 8/10 7:THE SETTLEMENT OFFICER DHUBRI P.O. AND DIST-DHUBRI 8:THE ASSISTANT SETTLEMENT OFFICER DHUBRI P.O. AND DIST-DHUBR Advocate for the Petitioner : MS. R CHOUDHURY Advocate for the Respondent : GA, ASSAM BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH