THE GAUHATI HIGH COURT v. MOTLEB ALI AND 2 ORS

HON’BLE MR. JUSTICE DEVASHIS BARUAH Advocate for the appellant(s) : Mr. R Majumdar Mr. B Chowdhury Advocate for the respondent(s) : Mr. N Haque Date of hearing : 14.05.2025 & Judgment JUDGMENT & ORDER (ORAL) Page No.# 3/7 Heard Mr. R Majumdar, the learned counsel appearing on behalf of the appellants. Mr. N Haque, the learned counsel appears on behalf of the respondents.

2. This is an appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, the Code) whereby the order dated 06.05.2019 passed by the learned Civil Judge, Barpeta (for short, ‘the learned First Appellate Court’) in Misc.(J) Case No.119/2018 arising out of Title Appeal No.38/2018 was dismissed thereby confirming the judgment and decree dated 22.06.2016 passed in Title Suit No.141/2013 passed by the Court of the learned Munsiff No.1, Barpeta (for short, ‘the learned Trial Court’).

3. The instant appeal is being taken up at the stage of Order XLI Rule 11 of the CPC to ascertain as to whether there is substantial question of law involved in the instant appeal.

4. It is taken note of that by way of an additional affidavit the appellant has proposed 3(three) questions of law as substantial questions of law which arises in the appeal that can be formulated, which are for the sake of convenience reproduced hereinunder: “(a).Whether the learned court below were justified in holding that the appellants have no right, title and interest over the land described in the ‘B’ Page No.# 4/7 Schedule? (b). Whether the learned court below was justified in holding that preferring appeal with delay is not explained with sufficient causes? (c). Whether the learned court below was justified in dismissing the appeal without appreciating the evidence in record and disposed it before born by taking a pedantic and hyper technical view?”

5. At the outset, it is relevant to take note of that the questions of law so proposed at Serial No. (a) and (c) being totally vague, the same cannot be said to be substantial questions of law which arises in the instant appeal that can be formulated under Section 100(4) of the Code. (See SBI Vs. S.N. Goyal reported in (2008) 8 SCC 92 paragraph 15).

6. Now let this Court take into consideration as to whether the question of law (b) which pertains to whether the learned First Appellate Court was justified in dismissing the appeal on the ground that the cause shown was not a sufficient cause.

7. This Court during the course of the hearing was provided an application filed under Order XLI Rule 3A read with Section 151 of the Code and Section 5 of the Limitation Act, 1963 which was the application seeking condonation of delay before the learned First Appellate Court. It was mentioned in the said application that the appellants herein were illiterate and after receiving the summons from the Court of the learned Munsiff No.1, Barpeta, the appellants appeared before the Court and engaged a counsel by the name one Mr. Abdul Page No.# 5/7 Matin Ahmed by executing a Vakalatnama. It is further mentioned that the appellants provided their signatures as and where dictated by the learned counsel and thereby submitted their written statement. It is also mentioned that the appellants had met their counsel regularly and the counsel informed the appellants that everything from their end were properly done and there was nothing to be worried. However, in the first part of the month of July 2018, the appellants met the counsel and asked him about the case, but in reply he demanded an amount of Rs.2000/- from the appellants. Finding no other alternative, the appellants returned home to accumulate Rs.2000/- for the Advocate. On 26.07.2018, the appellants met their counsel and paid him Rs.2000/- and the counsel asked them to obtain a certified copy of the judgment and decree. Immediately thereupon, the appellants applied for the certified copy of the judgment and decree of Title Suit No.141/2013 which they received on 30.07.2018. On receiving the said certified copy of the judgment and decree, the appellants went through the case record and came to know that the plaintiff’s suit was decreed on 30.06.2016. Thereupon, the appellants again engaged the same counsel for filing the appeal and stated that they had paid him Rs.6000/-. However, the counsel on 12.11.2018 returned the brief to the appellants and stated that there was no ground to prefer an appeal and as such he did not draft the appeal. Under such circumstances, the appellants engaged another set of lawyers to prefer the appeal and the appeal was filed on

01.12.2018.

8. It is relevant to take note of that the said application so filed under Section 5 of the Limitation Act of 1963 read with Order XLI Rule 3A of the Code was not on the basis of an affidavit but a verification. Be that as it may, the respondents herein filed objections to the said application and the learned First Appellate Court after taking into account the application so filed as well as the objections so received came to a categorical finding of fact that there was no sufficient cause to condone the delay. Page No.# 6/7

9. From the findings of fact so arrived at, it is seen that the suit was duly contested by the appellants by filing their written statement and had also cross- examined the plaintiff witnesses, but, however, the appellants did not file the evidence inspite of three consecutive adjournments. It is also seen that on behalf of the appellants, the counsel had duly addressed arguments and thereupon the judgment and decree was passed on 30.06.2016.

10. This Court had duly perused the materials on record and nothing could be shown that the finding of fact so arrived at by the learned First Appellate Court was perverse.

11. Considering the above, the question of law so proposed at Sl.No.(b) in the opinion of this Court cannot be formulated as a substantial question of law in the instant appeal.

12. Taking into consideration that without any substantial question of law, the present appeal cannot be proceeded with, the instant appeal stands dismissed. No costs. Page No.# 7/7 JUDGE Comparing Assistant