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2019 DIGILAW 947 (GAU)

Gunaram Boruah v. Bulan Changmai

2019-08-27

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : Achintya Malla Bujor Barua, J. Heard Mr. SK Ghosh, learned counsel for the appellant. 2. When the matter was heard on 22.08.2019, none had appeared for the respondents and a request was made to the Registry to inform the learned counsel for the respondent whose name is shown in the cause list that the matter is being taken up. But inspite of such attempts, the presence of the learned counsel for the respondents could not be ensured. 3. Today also when the matter is called on being separately listed in the daily cause list by showing the name of the learned counsel for the respondents, none appears for the respondents. In the circumstances and considering the fact that it is an appeal of the year 2008, we deem it appropriate to proceed in the matter in the absence of the learned senior counsel for the respondent No.1. 4. The appellant herein had instituted the TS No.70/1996 in the Court of Sadar Munsiff Dibrugarh against the present respondents, inter alia, praying for a decree declaring that the sale deed dated 02.04.1996 in favour of the defendant, which was alleged to have been executed by the plaintiff was fraudulent, invalid, void and inoperative and further for cancellation of the sale deed dated 02.04.1996 and also the resultant mutation dated 06.04.1996 and for delivery of the khas possession of the suit land. 5. The issues Nos.4 and 5 which pertain to the execution of the sale deed dated 02.04.21996 and the resultant mutation was adjudicated in favour of the plaintiff thereof by declaring that the sale deed is void, invalid and liable to be cancelled. 6. Being aggrieved, the respondent/defendant had preferred the T.A No.17/2003 in the Court of the learned Civil Judge Dibrugarh. The learned Civil Judge Dibrugarh while admitting the appeal in the order dated 02.12.2003 had taken note of that the appeal was preferred at a belated stage and, therefore, was time barred. The learned Court also took note that there is a petition No.2859/2003 under Section 5 of the Limitation Act for condoning the delay. However, instead of taking up the matter for condonation, the learned Court admitted the appeal for hearing by providing that the point of limitation be kept open for hearing along with the main appeal. 7. The learned Court also took note that there is a petition No.2859/2003 under Section 5 of the Limitation Act for condoning the delay. However, instead of taking up the matter for condonation, the learned Court admitted the appeal for hearing by providing that the point of limitation be kept open for hearing along with the main appeal. 7. Subsequently, by the judgment dated 31.07.2018 in TA No.17/2003, the judgment and decree dated 30.01.2003 in T.S. No.70/1996 was set aside and the learned Munsiff No.1 Dibrugarh was directed to dispose of the suit afresh after giving an opportunity to the defendant to adduce evidence both oral and documentary. 8. This appeal had been preferred by the plaintiff/appellants on the ground that while passing the judgment dated 31.07.2018, the learned Civil Judge Dibrugarh had not gone into the question as to whether the appeal itself was barred by limitation although by the order dated 02.12.2003, the question of limitation was kept open. 9. If the appeal itself was barred by limitation, the learned Civil Judge did not have further jurisdiction to entertain the appeal and set aside the judgment and decree dated 30.01.2003 of the learned Munsiff No.1, Dibrugarh in T.S.No.70/1996. But on the other hand, if the respondents who were the appellants in T.A.No.17/2003 had made out a case for condoning the delay, the learned Court was required to pass appropriate orders thereon. But in an appeal, which was filed at a belated stage beyond the period of limitation, the learned Civil Judge without giving a prior consideration to the question whether the appeal was barred by limitation cannot assume itself the jurisdiction to decide the appeal. It is more so, when the question of limitation was kept open to be heard at the stage of final hearing of the appeal. Accordingly, the judgment dated 31.07.2008 of the learned Civil Judge Dibrugarh, T.A.No.17/2003 is set aside and the matter stands remanded back to the learned Civil Judge, Dibrugarh to give a fresh consideration to the T.A No.17/2003 by hearing both the parties and decide the question of limitation as kept open by the order dated 02.12.2003 and only thereupon proceed further with the appeal. 10. In terms of the above, the appeal stands allowed. 11. Send back the LCR. 12. The learned Civil Judge to issue notice to the parties for their appearance.