Abdul Khalique v. Abdul Latif and 12 Ors

JUDGMENT & ORDER (ORAL)

27.05.2024

This is an appeal under Section 100 of the Code of Civil Procedure 1908 (for short, the Code) challenging the order dated 10.01.2023 passed in Misc. Case No.104/2022 whereby the application under Section 5 of the Limitation Act, 1963 (for short, the Act of 1963) was rejected thereby the accompanying appeal which was filed being Title Appeal No.5/2022 was dismissed being barred by limitation.

¶2This Court vide an order dated 21.06.2023 had admitted the instant appeal by formulating the following substantial questions of law: Whether the First Appellate Court was justified in rejecting the application under Section 5 of the Limitation Act, 1963 vide order dated 10/01/2013 without taking into consideration the order dated 10/2/2023 passed by the Supreme Court in Suo Moto Writ Petition (C) No.3/2020?

¶3The question arises in the instant proceedings as to whether the learned First Appellate Court i.e. the Court of the learned Civil Judge Karimganj was justified in rejecting the application for condonation of delay taking into account the order dated 10.01.2022 passed by the Supreme Court in the Suo Motu Writ Petition (C) No.3/2020. This Court finds it very pertinent to take note of that in paragraph 5 of the said order passed by the Supreme Court, it was categorically Page No.# 4/5 observed that the period from 15.03.2020 till 28.02.2022 shall be excluded for the purpose of limitation as may be prescribed under the general or special laws in respect to all judicial and quasi-judicial proceedings. It was further stipulated that in case where the limitation would have expired during the period between

15.03.2020 to 28.02.2022, notwithstanding, the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from

01.03.2022.

¶4In the instant case, if this Court takes note of the judgment and decree which was put to challenge in Title Appeal No.5/2022, it would transpire that the judgment and decree was passed on 20.12.2021 in Title Suit No.86/2014. The appeal was filed on 25.05.2022. Taking into account the order of the Supreme Court dated 10.01.2022, this Court is of the opinion that the appellant herein would have been entitled to a period up till 31.05.2022 to file the said appeal. In the instant case, the appeal admittedly was filed on 25.05.2022 and, therefore, the same was within the period of limitation and in fact, there was no requirement, even for filing an application for condonation of delay.

¶5In that view of the matter, the substantial question of law which has been formulated by this Court is duly involved in the instant appeal. Consequently, the impugned order dated 10.01.2023 passed in Misc. Case No.104/2022 as well as the consequential order dated 10.01.2023 in Title Appeal No.5/2022 are both set aside and quashed.

¶6This Court further taking into account that the appellant as well as the Page No.# 5/5 respondent Nos.1, 4 and 5 are duly represented before this Court, the said parties are directed to appear before the Court of the learned Civil Judge, Karimganj on 15.07.2024. Upon appearance, the learned First Appellate Court shall proceed with the disposal of the Appeal on merits.

¶7This Court further finds it relevant to observe that as the other respondents in the instant appeal are not represented today, the Appellate Court before proceeding with the Title Appeal shall issue due notice to the said respondents in the appeal being Title Appeal No.5/2022.

¶8With the above, the instant second appeal stands allowed. However, in the facts of the case, there shall be no order as to costs.

JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010083512023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oRSA/72/2023o ABDULoKHALIQUEo S/OoLATEoWATIRoALI,o RESIDENToOFoVILLAGEoLATUoPURANPARAo(LATUKANDI)oPOoLATU,oPSo ANDoDISToKARIMGANJ,oASSAM. VERSUSo ABDULoLATIFoANDo12oORSo.o S/OoLATEoAKALoMIAo RESIDENToOFoVILLAGEoLATUoKANDIoPOoLATU,oPSoANDoDISToKARIMGANJ,o ASSAM. 2:MUSSTT.oANOWARAoBEGUM oD/OoAKALoMIAo RESIDENToOFoVILLAGEoLATUoKANDIoPOoLATU oPSoANDoDISToKARIMGANJ oASSAM. 3:SUMIoBEGUM oW/OoMD.oALLAoUDDIN o RESIDENToOFoVILLAGEoLATUoKANDIoPOoLATU oPSoANDoDISToKARIMGANJ oASSAM. 4:ALLAoUDDIN oS/OoLATEoAKALoMIAo RESIDENToOFoVILLAGEoLATUoKANDIoPOoLATU oPSoANDoDISToKARIMGANJ oASSAM. 5:SAYEDoNURULoISLAM Page No.# 2/5 S/O LATE SAYED PIR BADRUJJAMAN RESIDENT OF VILLAGE LATU KANDI PO LATU PS AND DIST KARIMGANJ ASSAM. 6:LATU KANDI JAME MOSJID REPRESENTED BY THE SECRETARY OF THE MASJID COMMITTEE NAMELY MOSTOKIN ALI S/O LATE KALA MIA RESIDENT OF VILLAGE LATU KANDI PO LATU PS AND DIST KARIMGANJ ASSAM. 7:THE STATE OF ASSAM ASSAM 8:THE SETTLEMENT OFFICER KARIMGANJ PO PS AND DIST KARIMGANJ ASSAM 9:STRUCK OFF VIDE ORDER DATED 22.05.2024 N/A 10:STRUCK OFF VIDE ORDER DATED 22.05.2024 N/A 11:STRUCK OFF VIDE ORDER DATED 22.05.2024 N/A 12:STRUCK OFF VIDE ORDER DATED 22.05.2024 N/A 13:STRUCK OFF VIDE ORDER DATED 22.05.2024 N/ Advocate for the Petitioner : MR H R CHOUDHURY Advocate for the Respondent : MR. D HUSSAIN (R-1,4,5) Page No.# 3/5 B E F O R E HON'BLE MR. JUSTICE DEVASHIS BARUAH