THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM v. MD. INAM WARIS AND 4 ORS

For the Petitioner(s) : Mr. A.R. Shome, Advocate For the Respondent(s) : None appears BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH Date : 02.06.2025 ORDER Heard Mr. A.R. Shome, the learned counsel appearing on behalf of the petitioner.

The supervisory jurisdiction of this Court has been invoked challenging the order dated 29.07.2022 passed by the learned Court of the Civil Judge, Sonitpur, Tezpur in Petition No. 1502/2022 dated

31.05.2022 arising out of Title Suit No. 07/2019. Page No.# 4/6

Mr. A.R. Shome, the learned counsel appearing on behalf of the petitioner submitted that there was an inadvertence on the part of the petitioner not to file an application under Order XXII Rule 9 of the Code of Civil Procedure, 1908 (for short, “the Code”) as well as Section 5 of the Limitation Act, 1963 along with the application filed under Order XXII Rule 4 of the Code. The learned counsel submitted that this inadvertence happened on account of the ground that the petitioner was not aware of the date of death of the defendant No. 2. He therefore submitted that taking into account the judgment of the Supreme Court in the case of Om Prakash Gupta @ Lalloowa (Now Deceased) & Ors. Vs. Satish Chandra (Now Deceased) reported in (2025) SCC OnLine SC 291, the petitioner would be well advised to file a proper application before the learned Trial Court and the learned Trial Court may be directed to consider the same. He further submitted that the period during which the instant proceedings have been pending be excluded while computing the period of limitation in filing the said application.

This Court has given a due consideration to the materials on record and has also heard the learned counsel appearing on behalf of the petitioner. It is also seen that the respondents are not represented.

Taking into account the said submissions made by the learned counsel appearing on behalf of the petitioner, this Court closes the Page No.# 5/6 instant proceedings thereby giving liberty to the petitioner to file an application under Order XXII Rule 9 of the Code as well as Section 5 of the Limitation Act, 1963 for condonation of delay before the learned Trial Court.

This Court further observes that the period from 24.08.2022 till date be excluded while computing the period of limitation in filing the application under Order XXII Rule 9 of the Code. This Court further restores the Petition No. 1502/2022 dated 31.05.2022, taking into account that the same would be required for the purpose of substitution of the legal heirs of the defendant No. 2.

This Court further directs the learned Trial Court i.e. the learned Court of the Civil Judge, Sonitpur, Tezpur to consider the 3 (three) applications without being influenced by the order dated 29.07.2022, taking into account the settled position of law as held by the Constitution Bench of the Supreme Court in the case of Sardar Amarjit Singh Kalra (Dead) By Lrs. & Others Vs. Pramod Gupta (Smt) (Dead) by Lrs. and Others reported in (2003) 3 SCC 272 wherein the Supreme Court observed that the provisions of Order XXII of the Code are for the purpose of continuation of the proceedings.

It is further seen that vide an order dated 26.08.2022, the further proceedings of Title Suit No. 07/2019 pending before the learned Court of the Civil Judge, Sonitpur, Tezpur was stayed. The said stay Page No.# 6/6 order is vacated and the parties herein are directed to appear before the learned Trial Court i.e. the learned Court of the Civil Judge, Sonitpur, Tezpur on 27.06.2025 for further proceedings of Title Suit No 07/2019.

With the above observations and directions, the instant petition stands disposed of. Comparing Assistant JUDGE