Disposed¶84

Fazal Ali v. Asrab Ali and Ors.

Gauhati HC17 Mar 2025I.A.(Civil)/3407/2023

Case brief

AI extract

What is this about?

Condonation of delay; Section 5 of the Limitation Act; 90 days' delay; regular second appeal; Title Appeal No. 11/2020; Civil Judge, Barpeta; Judgment and Decree dated 14.03.2023; sciatica (lumbar sacral vertebral pathology); medical certificate and prescription; Superintendent, Barpeta Civil Hospital, Kalgachia; Gauhati High Court; Justice Robin Phukan; I.A.(Civil)/3407/2023; order dated 18.03.2025; 2025:GAU-AS:2852.

What did the court decide?

Delay of 90 days in filing the connected regular second appeal condoned; Registry directed to register the appeal and list it before the Court as soon as practical. ¶84

Fazal Ali Vs Asrab Ali and Ors. — Gauhati HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Delay of 90 days in filing the connected regular second appeal condoned; Registry directed to register the appeal and list it before the Court as soon as practical.

¶84

Issue for consideration

Whether the delay of 90 days in filing the connected regular second appeal against the Judgment and Decree dated 14.03.2023 passed by the learned Civil Judge, Barpeta, in Title Appeal No. 11/2020 should be condoned under Section 5 of the Limitation Act.

¶75

Court's answer

Taking note of the averments in paragraph Nos. 4 and 5 of the application and the medical certificate at Page No. 13 and the medical prescription at Page Nos. 12 and 12-A, the Court held that the delay of 90 days in filing the connected appeal is sufficiently explained.

¶80

Ratio / Principle

Although no medical advice to take rest was given for the period 03.06.2023 to 27.09.2023, the applicant was suffering from sciatica (lumbar sacral vertebral pathology) and had been prescribed medicines; accordingly the respondent's counsel's objection left the Court unimpressed.

¶81

Key takeaways

Considering the submissions of both parties and the facts and circumstances on record, the Court condoned the delay of 90 days in preferring the connected regular second appeal.ratio¶82

Detailed headnote1 paragraphs

Gauhati High Court (Hon'ble Mr. Justice Robin Phukan), order dated 18.03.2025 in I.A.(Civil)/3407/2023: application under Section 5 of the Limitation Act by Fazal Ali for condonation of 90 days' delay in filing a connected regular second appeal against the Judgment and Decree dated 14.03.2023 passed by the learned Civil Judge, Barpeta, in Title Appeal No. 11/2020. Delay explained on the ground that the applicant was not informed by his counsel of the date of the judgment and decree and suffered sciatica pain from 03.06.2023 to 27.09.2023, supported by a medical certificate (Page No. 13) and prescription (Page Nos. 12 and 12-A) issued by the Superintendent, Barpeta Civil Hospital, Kalgachia. Overruling the respondent's objection that no rest was medically advised, the Court found the delay sufficiently explained and condoned it; the interlocutory application stood disposed of, with the Registry to register the appeal and list it before the Court as soon as practical.

Page No.# 1/9

GAHC010235922023

2025:GAU-AS:2852

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

¶5

Case No. : I.A.(Civil)/3407/2023

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FAZAL ALI S/O LATE HASEN ALI, RESIDENT OF KALGACHIA, MOUZA RUPSHI, PO KALGACHI, DIST BARPETA, ASSAM

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VERSUS

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ASRAB ALI AND ORS S/O LATE HASEN ALI, RESIDENT OF KALGACHIA, MOUZA RUPSHI, PO KALGACHI, DIST BARPETA, ASSAM

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2:MUSSTT. SAHERA KHATUN W/O LATE HELAL UDDIN

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RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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3:MD. IMAN ALI S/O LATE HASEN ALI

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RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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4:MD. AJGAR ALI S/O LATE HASEN ALI

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Page No.# 2/9

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RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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5:MUSST. RABIA KHATUN D/O LATE HASEN ALI

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RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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6:MUSST. HALIMON NESSA D/O LATE HASEN ALI

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RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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7:MD. MAJIBAR RAHMAN S/O LATE KURPAN ALI

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RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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8:MD. JOYAN ALI S/O LATE RUPA MIAH RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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9:MD. ABU BAKKAR SIDDQUE S/O LATE AMZAD ALI

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RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI

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Page No.# 3/9

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DIST BARPETA ASSAM 781319

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10:MD. ABU BAKKAR S/O LATE KASIM UDDIN RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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11:MUSST. KARPULJAN NESSA D/O LATE BASER ALI

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RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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12:MUSST. MAMIRAN NESSA D/O LATE HASEN ALI

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RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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13:MD. INSU MIAH S/O LATE HAMED ALI

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RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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14:HUSSAIN ALI S/O LATE HAMED ALI

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RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

15:MD. JAHURUDDIN

Page No.# 4/9

S/O LATE HAMED ALI

RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

¶40

16:MD. ABDUL KUDDUS TALUKDAR S/O LATE EKUDRAT ALI RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

¶41

17:MUSST. SORIFAN NESSA D/O LATE ABDUR RAHMAN RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

¶42

18:MD. ABDUL KUDDUS S/O LATE CHAN MIAH RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

¶43

19:MD. SOHIDUL ISLAM S/O LATE CHAN MIAH RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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20:MD. MOHIM ALI S/O LATE MONSER ALI

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RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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Page No.# 5/9

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21:MD. ABDUL KARIM S/O LATE ESAB ALI RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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22:MUSST. HAMELA KHATUN D/O LATE AMZAD ALI RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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23:MD. RAHIMUDDIN AHMED S/O LATE RIAZ ALI RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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24:MD. JAMIR UDDIN S/O LATE HAZRAT ALI RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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25:MD. HIKAM ALI S/O LATE ABDUL RAZZAK RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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26:MD. ABDUL HAI

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S/O LATE ABDUL RAZZAK RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA

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Page No.# 6/9

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ASSAM 781319

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27:MD. RAHAM ALI S/O LATE ABDUL RAZZAK RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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28:MD. ABDUL GAFUR S/O LATE MONTAZ ALI

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RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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29:MUSST. SAHREA KHATUN D/O LATE KADAM ALI RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

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30:MUSST.. JAHANARA KHATUN D/O LATE ALI AMZAD RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

¶61

31:MD. SAHDAT HUSSAIN S/O LATE ABDUL KASEMI (BRANCH MANAGER ON BEHALF OF FLUROR INDIA RED ESTATE LIMITED KALGACHIA ) RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319 32:MD. SHAHAR ALI

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Page No.# 7/9

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S/O LATE HAZRAT ALI RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

¶64

33:MD. HANNAN ALI S/O LATE MOZIBAR RAHMAN RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

¶65

34:MD. SAIFUL ISLAM S/O LATE MOTIAR RAHMAN RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 781319

¶66

35:MD. AZMAT ALI

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S/O LATE WAHED ALI

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RESIDENT OF KALGACHIA MOUZA RUPSHI PO KALGACHI DIST BARPETA ASSAM 78131

¶69

Advocate for the Petitioner : MR. N DHAR, N HASAN,MR A HUSSAIN,MR. B K SEN Advocate for the Respondent : MR. N ALAM (R-1), S A BAKHTIAR(R-1),MR K JAIN(R-1)

¶70

BEFORE

¶71

HON’BLE MR. JUSTICE ROBIN PHUKAN ORDER

¶72

18.03.2025

¶73

Heard Mr B K Sen, learned counsel for the applicant and Mr S A Bakhtiar, learned counsel for the respondent/opposite party.

¶74

Page No.# 8/9

¶75

This application under Section 5 of the Limitation Act, is preferred by the applicant for condonation of delay of 90 days in filing the connected regular second appeal against the Judgment and Decree dated 14.03.2023, passed by the learned Civil Judge, Barpeta, in Title Appeal No. 11/2020.

¶76

Mr Sen, learned counsel for the applicant submits that the applicant was not informed by his counsel about the date of Judgment and Decree, passed by the learned first appellate Court on 14.03.2023, and that the applicant was also suffering from sciatica pain from 03.06.2023 to 27.09.2023, for which he could not move and therefore, the appeal could not be filed in time and in support of the aforementioned contention, the applicant has also enclosed a medical certificate and a prescription issued by the Superintendent, Barpeta Civil Hospital, Kalgachia and that the delay is not intentional and deliberate and the same has duly been explained in the paragraph Nos. 4 and 5 of the application and that the applicant has an arguable case and the same is required to be heard and to be decided on merit and therefore, Mr Sen contended to allow this application.

¶77

Per contra, Mr Bakhtiar submits that the delay has not been properly explained and in the medical certificate, no advice was given for taking rest by the applicant for the period indicated therein and as no sufficient ground is assigned, this petition is liable to be dismissed.

¶78

Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and the statements and averments made in paragraph Nos. 4 and 5 of the application and also the medical certificate at Page No. 13 and the medical prescription at Page Nos. 12 and 12-A of the application and taking note of the statements and averments made in the paragraph Nos. 4 and 5 of the application and also taking note of the medical certificate at Page No. 13 and the medical prescription at Page

¶79

Page No.# 9/9

¶80

Nos. 12 and 12-A, this Court is of the view that the delay of 90 days in filing the connected appeal is sufficiently explained in this application.

¶81

Though Mr Bakhtiar, learned counsel for the respondent/opposite party, submits that there is no medical advice for taking rest for the period from 03.06.2023 to 27.09.2023, yet it appears that the applicant was suffering from sciatica (lumbar sacral vertebral pathology) and he has also been prescribed with some of the medicines and as such, the submission of Mr Bakhtiar, learned counsel for the respondent/opposite party, left this Court unimpressed.

¶82

Thus, taking note of the submissions of learned counsel for both the parties and also considering the given facts and circumstances on record, this Court is inclined to condone the delay of 90 days in preferring the connected regular second appeal.

¶83

Accordingly, this interlocutory application stands disposed of.

¶84

In view of the order passed in this interlocutory application, now the Registry will proceed to register the appeal and list the same before the Court as soon as practical.

¶85

JUDGE

¶86

Comparing Assistant

Parties & counsel

AI extract

petitioner
FAZL ALI S/O LATE HASEN ALI¶6
N DHAR, N HASAN, A HUSSAIN, B K SEN
respondent
ASRAB ALI AND ORS S/O LATE HASEN ALI¶8
N ALAM, S A BAKHTIAR, K JAIN
respondent
MUSSTT. SAHERA KHATUN W/O LATE HELAL UDDIN¶9
respondent
MD. IMAN ALI S/O LATE HASEN ALI¶11
respondent
MD. AJGAR ALI S/O LATE HASEN ALI¶13
respondent
MUSST. RABIA KHATUN D/O LATE HASEN ALI¶16
respondent
MUSST. HALIMON NESSA D/O LATE HASEN ALI¶18
respondent
MD. MAJIBAR RAHMAN S/O LATE KURPAN ALI¶20
respondent
MD. JOYAN ALI S/O LATE RUPA MIAH¶22
respondent
MD. ABU BAKKAR SIDDQUE S/O LATE AMZAD ALI¶23
respondent
MD. ABU BAKKAR S/O LATE KASIM UDDIN¶27
respondent
MUSST. KARPULJAN NESSA D/O LATE BASER ALI¶28
respondent
MUSST. MAMIRAN NESSA D/O LATE HASEN ALI¶30
respondent
MD. INSU MIAH S/O LATE HAMED ALI¶32
respondent
HUSSAIN ALI S/O LATE HAMED ALI¶34
respondent
MD. JAHURUDDIN S/O LATE HAMED ALI¶36
respondent
MD. ABDUL KUDDUS TALUKDAR S/O LATE EKUDRAT ALI¶40
respondent
MUSST. SORIFAN NESSA D/O LATE ABDUR RAHMAN¶41
respondent
MD. ABDUL KUDDUS S/O LATE CHAN MIAH¶42
respondent
MD. SOHIDUL ISLAM S/O LATE CHAN MIAH¶43
respondent
MD. MOHIM ALI S/O LATE MONSER ALI¶44
respondent
MD. ABDUL KARIM S/O LATE ESAB ALI¶47
respondent
MUSST. HAMELA KHATUN D/O LATE AMZAD ALI¶48
respondent
MD. RAHIMUDDIN AHMED S/O LATE RIAZ ALI¶49
respondent
MD. JAMIR UDDIN S/O LATE HAZRAT ALI¶50
respondent
MD. HIKAM ALI S/O LATE ABDUL RAZZAK¶51
respondent
MD. ABDUL HAI S/O LATE ABDUL RAZZAK¶52
respondent
MD. RAHAM ALI S/O LATE ABDUL RAZZAK¶56
respondent
MD. ABDUL GAFUR S/O LATE MONTAZ ALI¶57
respondent
MUSST. SAHREA KHATUN D/O LATE KADAM ALI¶59
respondent
MUSST. JAHANARA KHATUN D/O LATE ALI AMZAD¶60
respondent
MD. SAHDAT HUSSAIN S/O LATE ABDUL KASEMI (BRANCH MANAGER ON BEHALF OF FLUROR INDIA RED ESTATE LIMITED KALGACHIA)¶61
respondent
MD. SHAHAR ALI S/O LATE HAZRAT ALI¶61
respondent
MD. HANNAN ALI S/O LATE MOZIBAR RAHMAN¶64
respondent
MD. SAIFUL ISLAM S/O LATE MOTIAR RAHMAN¶65
respondent
MD. AZMAT ALI S/O LATE WAHED ALI¶66

Coram

AI extract

ROBIN PHUKANauthor¶71

Fazal Ali v. Asrab Ali and Ors.

Case brief

What is this about?

What did the court decide?

Fazal Ali v. Asrab Ali and Ors.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

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