Allowed

On the Death of Sri Matilal Chouhan His Legal Heir Sri Puja Chouhan v. Md. Haider Ali and 4 Ors.

Gauhati HC13 May 2022I.A.(Civil)/166/2022

Case brief

AI extract

What is this about?

The Gauhati High Court disposed of three interlocutory applications regarding abatement and substitution of parties in a second appeal. The Court condoned a significant delay to set aside the abatement and substituted the legal representative, noting the complexity of the delay and lack of objection from the opposite party.

What did the court decide?

Condoned the delay of 1271 days, set aside the abatement, substituted the legal representative in the death of the appellant, and directed the registry to make corrections in the appeal record.

On the Death of Sri Matilal Chouhan His Legal… — Civil Procedure and Limitation | Gauhati HC (2022)

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Page No.# 1/7

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GAHC010009562022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : I.A.(Civil)/164/2022

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ON THE DEATH OF SRI MATILAL CHOUHAN HIS LEGAL HEIR SMTI. PUJA CHOUHAN W/O-SRI AMAR MAHATO, R/O-DURGABARI, COOCH BEHAR, P.O. AND P.S.COOCH BEHAR, PIN-736101. WEST BENGAL.

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2: JYOTILAL CHOUHAN

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BOTH ARE S/O LATE BHAGAWAN NUNIA R/O VILL. NO. 2 JOYMA P.O. BHADEYAGURI P.S. GOSAIGAON DIST. KOKRAJHAR BTC ASSA

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VERSUS

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MD. HAIDER ALI and ORS, S/O LATE SARITULLA SHEIKH

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2:MUSSTT. HABIRAN BEWA

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W/O LATE SARITULLA SHIEKH BOTH ARE ERSIDENT OF VILL. NO. 2 JOYMA P.O. BHADEYAGURI P.S. GOSAIGAON DIST. KOKRAJHAR BTC ASSAM.

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3:THE STATE OF ASSAM

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REPRESENTED BY THE COLLECTOR

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KOKRAJHAR DIST. OFFICE OF DEPUTY COMMISSIONER and COLLECTOR

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Page No.# 2/7

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KOKRAJHAR P.O. and P.S. and DIST. KOKRAJHAR BTC ASSAM.

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4:THE CIRCLE OFFICER

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GOSAIGAON REVENUE CIRCLE GOSSAIGAON OFFICE OF THE CIRCLE OFFICER P.O. and P.S. GOSSAIGAON DIST. KOKRAJHAR BTC ASSAM.

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5:THE BODOLAND TERRITORIAL COUNCIL

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REPRESENTED BY THE PRINCIPAL SECY. BTC P.O. P.S. and DIST. KOKRAJHAR BTC ASSAM

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Advocate for the Petitioner : MR. R K DAS CHOUDHURY

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Advocate for the Respondent : SC, BTC

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Linked Case : I.A.(Civil)/165/2022

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ON THE DEATH OF SRI MATILAL CHOUHAN HIS LEGAL HEIR SMTI. PUJA CHOUHAN W/O-SRI AMAR MAHATO R/O-DURGABARI COOCH BEHAR P.O. AND P.S.-COOCH BEHAR PIN-736101. WEST BENGAL.

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2: JYOTILAL CHOUHAN

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BOTH ARE S/O LATE BHAGAWAN NUNIA R/O VILL. NO. 2 JOYMA P.O. BHADEYAGURI

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Page No.# 3/7

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P.S. GOSAIGAON DIST. KOKRAJHAR BTC ASSAM VERSUS MD. HAIDER ALI and 4ORS S/O LATE SARITULLA SHEIKH 2:MUSSTT. HABIRAN BEWA

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W/O LATE SARITULLA SHIEKH BOTH ARE ERSIDENT OF VILL. NO. 2 JOYMA P.O. BHADEYAGURI P.S. GOSAIGAON DIST. KOKRAJHAR BTC ASSAM. 3:THE STATE OF ASSAM REPRESENTED BY THE COLLECTOR KOKRAJHAR DIST. OFFICE OF DEPUTY COMMISSIONER and COLLECTOR KOKRAJHAR P.O. and P.S. and DIST. KOKRAJHAR BTC ASSAM. 4:THE CIRCLE OFFICER GOSAIGAON REVENUE CIRCLE GOSSAIGAON OFFICE OF THE CIRCLE OFFICER P.O. and P.S. GOSSAIGAON DIST. KOKRAJHAR BTC ASSAM. 5:THE BODOLAND TERRITORIAL COUNCIL REPRESENTED BY THE PRINCIPAL SECY. BTC P.O. P.S. and DIST. KOKRAJHAR BTC ASSAM. -----------Advocate for : MR. R K DASCHOUDHURY Advocate for : SC BTC appearing for MD. HAIDER ALI and 4ORS

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Page No.# 4/7

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Linked Case : I.A.(Civil)/166/2022

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ON THE DEATH OF SRI MATILAL CHOUHAN HIS LEGAL HEIR SRI PUJA CHOUHAN W/O-SRI AMAR MAHATO R/O-DURGABARI COOCH BEHAR P.O. AND P.S.-COOCH BEHAR PIN-736101. WEST BENGAL.

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2: JYOTILAL CHOUHAN

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BOTH ARE S/O LATE BHAGAWAN NUNIA R/O VILL. NO. 2 JOYMA P.O. BHADEYAGURI P.S. GOSAIGAON DIST. KOKRAJHAR BTC ASSAM VERSUS

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MD. HAIDER ALI and 4 ORS

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S/O LATE SARITULLA SHEIKH

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2:MUSSTT. HABIRAN BEWA

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W/O LATE SARITULLA SHIEKH BOTH ARE ERSIDENT OF VILL. NO. 2 JOYMA P.O. BHADEYAGURI P.S. GOSAIGAON DIST. KOKRAJHAR BTC ASSAM. 3:THE STATE OF ASSAM

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REPRESENTED BY THE COLLECTOR KOKRAJHAR DIST. OFFICE OF DEPUTY COMMISSIONER and COLLECTOR KOKRAJHAR P.O. and P.S. and DIST. KOKRAJHAR BTC ASSAM.

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4:THE CIRCLE OFFICER

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Page No.# 5/7

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GOSAIGAON REVENUE CIRCLE GOSSAIGAON OFFICE OF THE CIRCLE OFFICER P.O. and P.S. GOSSAIGAON DIST. KOKRAJHAR BTC ASSAM. 5:THE BODOLAND TERRITORIAL COUNCIL

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REPRESENTED BY THE PRINCIPAL SECY. BTC P.O. P.S. and DIST. KOKRAJHAR BTC ASSAM. -----------Advocate for : MR. R K D CHOUDHURY Advocate for : SC BTC appearing for MD. HAIDER ALI and 4 ORS

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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ORDER

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Date : 13-05-2022

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Heard Mr. R.K.D. Choudhury, learned counsel for the applicant. All the three interlocutory applications arise on account of the death of the appellant No. 1 who expired on 19.06.2016.

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I.A.(Civil) No. 166/2022 pertains to an application for condonation of a delay of 1271 days in filing the application seeking setting aside of the abatement. I.A.(Civil) No. 165/2022 is an application under Order XXII Rule 9 for setting aside the abatement and I.A.(Civil) No. 164/2022 relates to an application for substitution of legal representatives of the respondent No. 1.

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The case as projected in the three applications pertains to that the connected regular second appeal being RSA No. 219/2010 was admitted on 07.10.2010. Thereupon, as the said appeal was pending and there was no correspondence from the client to the counsel for which the counsel had no knowledge about the death of Appellant No. 1. It has also been stated that the appellant No. 1 is survived by only one legal representative i.e. one Smt. Puja Chouhan and she also did not have any knowledge of the second appeal proceedings as she was married and resides in Cooch Behar, West Bengal.

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I have also heard the learned counsel for the opposite party Nos. 1 and 2 who are also the respondent Nos. 1 and 2 in the regular second appeal.

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He submits on instructions that the respondent Nos. 1 and 2 have no objection as regards the condonation of delay, setting aside of the appellant as well as the substitution of the appellant No. 1 by the applicant.

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Taking into consideration that the provisions of Order XXII are not penal in any nature but the same has been engrafted into the Code of Civil Procedure for the purpose of effectually adjudicating the disputes between the parties and taking into consideration the grounds shown and there being no objections to the said condonation of delay as well as for setting aside the abatement, this Court deems it proper in the interest of justice to condone the delay of 1271 days in preferring the application for setting aside the abatement.

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This Court also in view of the above grounds, sets aside the abatement insofar as the appellant No. 1. In view of setting aside of the

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abatement, this Court further substitutes the appellant No. 1 with the applicant.

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The Registry is directed to make necessary correction in the connected regular second appeal by substituting the name of the applicant with the appellant No. 1.

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All the three I.A.s stands disposed of accordingly.

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Comparing Assistant

On the Death of Sri Matilal Chouhan His Legal Heir Sri Puja Chouhan v. Md. Haider Ali and 4 Ors.

Case brief

What is this about?

What did the court decide?

On the Death of Sri Matilal Chouhan His Legal Heir Sri Puja Chouhan v. Md. Haider Ali and 4 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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