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Gauhati High Court
Page No.# 1/ vs Mahamaya Paver Block Industry And Anr on 21 July, 2025
Page No.# 1/10
GAHC010209632024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/3368/2024
HAJARA BEGUM AND 4 ORS
W/O LATE ABJAL ALI, R/O VILL- BORKHETRI BORNI, P.O.-BONOGRAM,
P.S.-BELSAR, DIST- NALBARI, PIN NO.-781303
2: RAJ AHMED
S/O LATE ABJAL ALI
R/O VILL- BORKHETRI BORNI
P.O.-BONOGRAM
P.S.-BELSAR
DIST- NALBARI
PIN NO.-781303 (MINOR REPRESENTED BY PETITIONER NO. 1)
3: NEHA SABNAM
D/O LATE ABJAL ALI
R/O VILL- BORKHETRI BORNI
P.O.-BONOGRAM
P.S.-BELSAR
DIST- NALBARI
PIN NO.-781303
4: MUNMI SABNAM
D/O LATE ABJAL ALI
R/O VILL- BORKHETRI BORNI
P.O.-BONOGRAM
P.S.-BELSAR
DIST- NALBARI
PIN NO.-781303
5: JOHNTI AHMED
MANAGER OF THE PROPRIETORSHIP FIRM NAMELY ABJAL ALI (GSTIN-
18AFHPA3238C2ZY)
R/O VILL- BORKHETRI BORNI
P.O.-BONOGRAM
P.S.-BELSAR
Page No.# 2/10
DIST- NALBARI
PIN NO.-78130
VERSUS
MAHAMAYA PAVER BLOCK INDUSTRY AND ANR
(GSTIN 18CDZPK1369N1ZI), A PROPRIETORSHIP FIRM HAVING ITS PLACE
OF BUSINESS AT KENENIKUCHI, CHEPTI, RANGIA, KAMRUP (R), ASSAM,
REPRESENTED BY ITS PROPRIETOR SRI GAURAB KUMAR KALITA, S/O
SRI BIJOY CH. KALITA, R/O PANJABARI, LAKHIMI PATH HOUSE NO. 02,
P.S.-DISPUR, DIST- KAMRUP (M) AT GUWAHATI, ASSAM
2:SAFIK SABIK
MANAGER OF PROPRIETORSHIP FIRM NAMELY ABJAL ALI SITUATED AT
VILL- BORKHETRI BORNI
P.O.-BONOGRAM
P.S.-BELSAR
DIST- NALBARI
PIN NO.-78130
Advocate for the Petitioner : MR. R GOSWAMI, MS. U BHATTACHARYYA,MS S DAS,MS N
DEVI
Advocate for the Respondent : MR. V N UPADHYAY (R-1), MS P MISHRA (R-1)
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date : 21.07.2025
Heard Mr. R. Goswami, learned counsel for the applicants. Also heard Ms.
P. Mishra, learned counsel for the opposite parties.
2. This application, under Section 5 of the Limitation Act, 1963, is
preferred by the applicants for condonation of delay of 546 days in preferring
the connected appeal against the judgment and decree dated 22.09.2022,
passed by the learned Civil Judge, Kamrup, Amingaon, in Money Suit No.
2/2021, which was decreed ex-parte in favour of the opposite parties/plaintiffs.
3. Mr. Goswami, learned counsel for the applicants submits that the
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opposite parties had filed a money suit, being Money Suit No. 2/2021, before
the learned Civil Judge, Kamrup, Amingaon against the present applicants, for
realization of a sum of Rs. 31,25,059.02/-, along with interest, and the suit of
the opposite parties/plaintiffs proceeded ex-parte against the
applicants/defendants, vide order dated 22.12.2021, passed by the learned Civil
Judge, Kamrup, Amingaon, on the basis of postal receipt and track consignment
report submitted by the opposite parties and accordingly, vide order dated
22.09.2022, the learned Civil Judge, Kamrup, Amingaon (‘trial Court’, for short)
had decreed the suit of the opposite parties/plaintiffs ex-parte. Mr. Goswami
also submits that the postal track consignment report has not been proved and
the husband of the applicant No. 1 suffered demise and after his death, the firm
no longer exists, and that she came to know about the suit only when she
received notice in the Money Execution Case No. 1/2023, and thereafter, she
had filed an application in the money suit, under Order 9 Rule 13, read with
Section 151 of the CPC, stating that they had not received the summon from
the Court and therefore, they could not appear and contest the money suit, and
upon the said petition, Misc. (J) Case No. 315/2023, was registered and
thereafter, hearing both the parties, the learned trial Court dismissed the same.
Mr. Goswami further submits that against the said order, the applicants had
decided to file an appeal and in preparing the said appeal, delay of 546 days
occurred, and that the delay is not intentional, rather it is circumstantial and the
same has been explained in paragraph Nos. 5 and 6 of the application, and that
the applicants/defendants had no knowledge of institution of the Pre-Mediation
Case No. 54/2021, and immediately after receiving the notice in the execution
case on 10.08.2023, the applicants went to the chamber of their counsel and as
per advice of their counsel, they filed an application under Order 9 Rule 13, read
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with Section 151 of the CPC, on 01.09.2023 and the same came to dismissed on
18.04.2024, and thereafter, the certified copy of the order dated 22.05.2023
was received on 30.04.2024, and thereafter, the applicant No. 1, as per advice
of their Advocate at Nalbari, decided to challenge the order dated 22.05.2023,
in this Court on 03.05.2024. In support of his submission, Mr. Goswami has
referred to a decision of Hon’ble Supreme Court in the case of Collector,
Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji and Ors.,
reported in AIR 1987 SC 1353.
4. Per contra, Ms. Mishra, learned counsel for the opposite parties, has
vehemently opposed this application. She submits that the delay of 546 days
has not been properly explained in paragraph Nos. 5 and 6 of this application,
and that they were very much aware of the Pre-Mediation Case No. 54/2021,
and after the death of Abjal Ali also the firm exists, and these facts have been
clearly mentioned in the objection petition filed by the opposite parties, and
therefore, it is contended to dismiss this application. In support of her
submission, Ms. Mishra has referred to a decision of Hon’ble Supreme Court in
the case of Thirunagalingam vs. Lingeswaran and Anr., reported in 2025
0 Supreme(SC) 814.
5. Having heard the submissions of learned Advocates of both sides, I
have carefully gone through the application and the documents placed on
record, and also perused the order dated 06.04.2024, passed by the learned
Civil Judge (Senior Division), Kamrup, Amingaon.
6. In paragraph Nos. 5 and 6 of the application, the applicants have stated
that Abjal Ali, the proprietor of Abjal Ali Proprietorship Firm, died on 04.06.2020,
and that thereafter, the said proprietorship firm extinguished and after the death
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of Abjal Ali, his wife – the applicant No. 1, was suffering from severe financial
hardship, and on receipt of notice in the execution case only, she came to know
about the same and therefore, she could not appear in the suit and then she
approached one counsel and as per advice of that counsel, she obtained
certified copy of the order in the money suit and only after obtaining certified
copy and perusing the same, she came to know that the documents produced
before the learned trial Court were not genuine and the decree was passed ex-
parte, and no notice was served upon any of the applicants, and therefore, they
remained absent in the suit. It is also stated that the applicants received notice
on the execution proceeding on 10.08.2023, and thereafter, they filed one
application under Order 9 Rule 13, read with Section 151 of the CPC on
01.09.2023, but the same was dismissed by the learned Civil Judge, Kamrup,
Amingaon on 18.04.2024 and the certified copy of the order dated 22.05.2023,
was received on 30.04.2024, and thereafter, the applicant No. 1 as per advice of
her counsel at Nalbari, decided to contest the order dated 22.05.2023, in this
Court on 03.05.2024, and the said counsel of Nalbari came to Guwahati and
discussed about the appeal to be filed in this Court on 05.05.2024, and the
counsel took one week time to study the case records and as per advice of the
Advocate of this Court, the applicants applied for certified copy of some of the
vital documents, which were relied by the plaintiffs/opposite parties, on
16.05.2024, and the same were received by the counsel of the applicants on
05.06.2024, and thereafter, said counsel delivered the said certified copy of the
documents to the Advocate at Guwahati on 12.06.2024, and the counsel of this
Court on receipt of the copy of the said documents, prepared the regular first
appeal and after receiving the cost of filing with the Court fees etc., filed the
same on 10.07.2024. It is further stated that the certified copy of the order
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dated 06.04.2024, in Misc. (J) Case No. 315/2023, found to be not very legible
and therefore, again they applied for certified copy of the said order on
19.09.2024, and received the same by the Advocate in Amingaon on 23.09.2024
and handed over the same to the Advocate of this Court on 25.09.2024, and
therefore, the delay in filing of the connected appeal and the cause of delay is
explained.
7. However, from a perusal of the objection filed by the opposite parties, it
appears that the contention made by the applicants that they had no knowledge
about institution of the Pre-Mediation Case No. 54/2021, appears to be not at all
satisfactory, and that though Abjal Ali, the proprietor of Abjal Ali Proprietorship
Firm died on 04.06.2020, the said proprietorship firm does not extinguish, and
that in the Pre-Mediation Case No. 54/2021, the status of the proprietorship
firm, namely, Abjal Ali Proprietorship Firm was shown as active on the date of
institution of Pre-Mediation Case No. 54/2021, and the same is apparent from
Annexure-12 of the objection.
8. Further, it appears that the contention that notice was not served upon
the applicants also appears to be incorrect in view of the fact that the postal
receipt and track consignment report are not disputed and Section 27 of the
General Clauses Act, provides that when a document, such as a notice, is sent
by registered post, it is deemed to have been served on the recipient at the
time it would have been delivered in the ordinary course of post, which means
that even if the recipient does not physically receive it, it is considered legally
delivered unless they can prove otherwise.
9. In the case in hand, the applicants have failed to show that the
summon issued to them were not properly addressed and sent by registered
post, rather postal receipt and track consignment report speaks otherwise.
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10. It is to be noted here that in the case of Thirunagalingam (supra),
Hon’ble Supreme Court in paragraph Nos. 31, 32, 33, has held as under:
“31. It is a well-settled law that while considering the plea for
condonation of delay, the first and foremost duty of the court
is to first ascertain the bona fides of the explanation offered
by the party seeking condonation rather than starting with the
merits of the main matter. Only when sufficient cause or reasons
given for the delay by the litigant and the opposition of the
other side is equally balanced or stand on equal footing, the
court may consider the merits of the main matter for the purpose
of condoning the delay.
32. Further, this Court has repeatedly emphasised in several
cases that delay should not be condoned merely as an act of
generosity. The pursuit of substantial justice must not come at
the cost of causing prejudice to the opposing party. In the
present case, the respondents/defendants have failed to
demonstrate reasonable grounds of delay in pursuing the matter,
and this crucial requirement for condoning the delay remains
unmet.
33. Therefore, in the case at hand, once it has been
established that the reasons provided for condoning The delay in
the application filed are not sufficient, we are not inclined to
go into the merits of the contentions raised by the learned
counsel of Respondents regarding Section 14 of the Limitation
Act, 1963.”
10.1. Further, in the case of Collector, Land Acquisition, Anantnag
(supra), Hon’ble Supreme Court has held that:
“3. The legislature has conferred the power to condone delay
by enacting Section 5 [ Any appeal or any application, other
than an application under any of the provisions of Order XXI
of the Code of Civil Procedure, 1908, may be admitted after
the prescribed period if the appellant or the applicant
Page No.# 8/10satisfies the court that he had sufficient cause for not
preferring the appeal or making the application within such
period.] of the Indian Limitation Act of 1963 in order to
enable the courts to do substantial justice to parties by
disposing of matters on “merits”. The expression “sufficient
cause” employed by the legislature is adequately elastic to
enable the courts to apply the law in a meaningful manner
which subserves the ends of justice — that being the life-
purpose for the existence of the institution of courts. It
is common knowledge that this Court has been making a
justifiably liberal approach in matters instituted in this
Court. But the message does not appear to have percolated
down to all the other courts in the hierarchy. And such a
liberal approach is adopted on principle as it is realized
that:
“1. Ordinarily a litigant does not stand to benefit by
lodging an appeal late.
2. Refusing to condone delay can result in a
meritorious matter being thrown out at the very
threshold and cause of justice being defeated. As
against this when delay is condoned the highest that
can happen is that a cause would be decided on merits
after hearing the parties.
3. “Every day’s delay must be explained” does not mean
that a pedantic approach should be made. Why not every
hour’s delay, every second’s delay? The doctrine must
be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical
considerations are pitted against each other, cause of
substantial justice deserves to be preferred for the
other side cannot claim to have vested right in
injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned
deliberately, or on account of culpable negligence, or
Page No.# 9/10on account of mala fides. A litigant does not stand to
benefit by resorting to delay. In fact he runs a
serious risk.
6. It must be grasped that judiciary is respected not
on account of its power to legalize injustice on
technical grounds but because it is capable of removing
injustice and is expected to do so.
Making a justice-oriented approach from this perspective,
there was sufficient cause for condoning the delay in the
institution of the appeal. The fact that it was the “State”
which was seeking condonation and not a private party was
altogether irrelevant. The doctrine of equality before law
demands that all litigants, including the State as a
litigant, are accorded the same treatment and the law is
administered in an even-handed manner. There is no warrant
for according a step-motherly treatment when the “State” is
the applicant praying for condonation of delay. In fact
experience shows that on account of an impersonal machinery
(no one in charge of the matter is directly hit or hurt by
the judgment sought to be subjected to appeal) and the
inherited bureaucratic methodology imbued with the note-
making, file-pushing and passing-on-the-buck ethos, delay on
its part is less difficult to understand though more
difficult to approve. In any event, the State which
represents the collective cause of the community, does not
deserve a litigant-non-grata status. The courts therefore
have to be informed with the spirit and philosophy of the
provision in the course of the interpretation of the
expression “sufficient cause”. So also the same approach has
to be evidenced in its application to matters at hand with
the end in view to do even-handed justice on merits in
preference to the approach which scuttles a decision on
merits. Turning to the facts of the matter giving rise to
the present appeal, we are satisfied that sufficient cause
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exists for the delay. The order of the High Court dismissing
the appeal before it as time-barred, is therefore, set
aside. Delay is condoned. And the matter is remitted to the
High Court. The High Court will now dispose of the appeal on
merits after affording reasonable opportunity of hearing to
both the sides.”
11. Thus, having examined the explanation, so forthcoming in paragraph
Nos. 5 and 6 of the application in the light of the principle enunciated in the
cases discussed herein above, this Court is unable to derive satisfaction that the
delay of 546 days has sufficiently been explained and Ms. Mishra, learned
counsel for the opposite parties has rightly pointed this out, and the decision
referred by her also supports her contention.
12. And in view of the given facts and circumstances, this Court is of the
view that the ratio laid down in the case of Collector, Land Acquisition,
Anantnag (supra), would not advance the case of Mr. Goswami, learned counsel
for the applicants. It is true that every day delay must be explained does not
mean pedantic approach to be made and the said doctrine has to be applied in
a commonsense pragmatic manner. But, in view of the finding of this Court that
the delay is not sufficiently explained and the crucial requirement remained
unmet, then any liberal approach will cause serious prejudice to the other side.
13. In view of the above discussion and finding, this application appears to
be devoid of merit and accordingly, the same stands dismissed.
14. In view of dismissal of this interlocutory application, the connected
regular first appeal also stands dismissed.
JUDGE
Comparing Assistant
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