Md. Habibur Rahman v. On the Death of Md. Gazanfar Ali

ORDER

03.06.2024. Heard Shri MU Mahmud, learned counsel for the petitioner.

¶2Considering the subject matter involved and the provisions of law, the instant petition is taken up for final disposal at the motion stage itself.

¶3The projected facts are that in Title Suit No. 322/2010 instituted before the Court of learned Munsiff No.1 at Barpeta, the present petitioner was arrayed as the defendant no. 3. The said suit was instituted by the predecessors of the present respondents.

¶4It is contended that while the suit was instituted at Barpeta, the petitioner Page No.# 3/5 was residing at Guwahati. It is further contended that there was recourse to some fraudulent activity so far as the report on service is concerned and according to the petitioner, he never received any notice. It is submitted that the petitioner being illiterate, though a thumb impression was appearing in the report, there was some fraud involved and the petitioner was actually not having any knowledge of the said suit.

¶5The suit was ultimately decreed vide judgment and decree dated

13.12.2013 which was ex parte against the present petitioner.

¶6The petitioner had accordingly filed an application under Order 9 Rule 13 of the CPC which was registered as Misc.(J) Case No. 13/2015. The said application was, however, rejected vide order dated 04.12.2017.

¶7The aforesaid order of rejection was, however, the subject matter of Misc. Appeal No. 4/2018 instituted before the learned Civil Judge, Barpeta. The said appeal was, however, dismissed vide order dated 20.10.2022.

¶8Being aggrieved, the petitioner had, however, preferred a first appeal in this Court, being FAO/1/2023.

¶9Without going into the aspect of the maintainability of such appeal, this Court has noted that vide an order dated 06.01.2023 while issuing notice, an interim order was passed regarding the operation of the ex parte judgment and decree dated 13.12.2013. It, however, transpires that when the said FAO/1/2023 had come up for consideration on a subsequent date, this Court Page No.# 4/5 vide order dated 13.05.2024 had dismissed the said appeal on withdrawal. This Court had noticed that wrong provision of law was taken into recourse. This Court had also made certain observations regarding the limitation period.

¶10Pursuant to the said order, the instant application has been filed under Section 115 of the CPC.

¶11The aforesaid Section 115 was amended in the year 1999 which came into effect from 01.07.2002 whereby a proviso was added. For ready reference, the proviso is extracted hereinbelow:

"High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings."

¶12This Court has also noticed that the original judgment and decree dated

13.12.2013 passed in Title Suit No.322/2010 has not been put to challenge as yet.

¶13Therefore, while this present application is rejected on the issue of jurisdiction, the petitioner is given liberty to challenge the original judgment and decree passed in the title suit in the appropriate Court of jurisdiction. If such appeal is preferred, the petitioner would be at liberty to take recourse to the Page No.# 5/5 observations made by this Court in the order dated 13.05.2024 with regard to the issue of limitation. Further, the time consumed after the order dated

13.05.2024 till the stage, may also be taken into consideration.

JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010102032024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCRP/57/2024o MD.oHABIBURoRAHMANo S/O-oLT.oSUKURoALI,o VILL-oKHARUAPARA,o MOUZA-oNAGAON,oP.O.-oNAGAON,o P.S.oANDoDIST.-oBARPETA,o PIN-o781309. VERSUSo ONoTHEoDEATHoOFoMD.oGAZANFARoALIo HISoLEGALoHEIRSoNAMELY 1.1:RINAoBEGUM oW/O-oLT.oGAZANFARoALI o RESIDENToOFoVILL-oBHELLA oDURGAPUR o MOUZA-oBARPETA oP.S.-oBARPETA o ASSAM oPIN-o781314. 1.2:GAJIULoALOM oS/O-oLT.oGAZANFARoALI o RESIDENToOFoVILL-oBHELLA oDURGAPUR o MOUZA-oBARPETA oP.S.-oBARPETA Page No.# 2/5 ASSAM PIN- 781314. 1.3:NUR ALOM /O- LT. GAZANFAR ALI RESIDENT OF VILL- BHELLA DURGAPUR MOUZA- BARPETA P.S.- BARPETA ASSAM PIN- 781314 Advocate for the Petitioner : MR. M U MAHMUD Advocate for the Respondent : BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI