Ajijul Hoque and Anr. Vs Mujafar Ali and 5 Ors.

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GAHC010170632023

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

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Case No. : CRP/115/2023

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AJIJUL HOQUE AND ANR

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SON OF LATE ABDUL AZIZ @ ABDUR RAHMAN, R/O- VILLAGEBANGHUGI, UNDER MOUZA- TITAPANI, P.O. BANGHUGI, P.S. KALGACHIA, DISTRICT- BARPETA, ASSAM, PIN- 781321

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2: AJIBAR RAHMAN

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SON OF LATE ABDUL AZIZ @ ABDUR RAHMAN R/O- VILLAGE- BANGHUGI UNDER MOUZA- TITAPANI P.O. BANGHUGI P.S. KALGACHIA DISTRICT- BARPETA ASSAM PIN- 78132

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VERSUS

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MUJAFAR ALI AND 5 ORS

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SON OF LATE FAJLUR RAHMAN, R/O- VILLAGE- BANGHUGI, UNDER MOUZA- TITAPANI, P.O. BANGHUGI, P.S. KALGACHIA, DISTRICTBARPETA, ASSAM, PIN- 781321

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2:SAHAJAHAN ALI SON OF LATE FAJLUR RAHMAN R/O- VILLAGE- BANGHUGI UNDER MOUZA- TITAPANI P.O. BANGHUGI P.S. KALGACHIA DISTRICT- BARPETA ASSAM PIN- 781321

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3:KHUDEJA KHATUN WIFE OF LATE FAJLUR RAHMAN

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R/O- VILLAGE- BANGHUGI UNDER MOUZA- TITAPANI P.O. BANGHUGI P.S. KALGACHIA DISTRICT- BARPETA ASSAM PIN- 781321 4:ANJUWARA KHATUN DAUGHTER OF LATE FAJLUR RAHMAN R/O- VILLAGE- BANGHUGI UNDER MOUZA- TITAPANI P.O. BANGHUGI P.S. KALGACHIA DISTRICT- BARPETA ASSAM PIN- 781321 5:MAJEDA KHATUN DAUGHTER OF LATE FAJLUR RAHMAN W/O- NIJAMUDDIN R/O- VILLAGE- CHANDAMAMA UNDER MOUZA- TITAPANI P.O. BANGHUGI P.S. KALGACHIA DISTRICT- BARPETA ASSAM PIN- 781321 6:CHANDRA BHANU DAUGHTER OF LATE FAJLUR RAHMAN WIFE OF HANIF ALI R/O- VILLAGE- ISABPUR UNDER MOUZA- TITAPANI P.O. KALGACHIA P.S. KALGACHIA DISTRICT- BARPETA ASSAM PIN- 78132

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Advocate for the petitioner(s): Mr. P Sah

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Advocate for the respondent(s): Mr. J Abbas

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B E F O R E

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HON’BLE MR. JUSTICE DEVASHIS BARUAH

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ORDER

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05.05.2025

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Heard Mr. P Sah, the learned counsel appearing on behalf of the petitioner. Mr. J Abbas, the learned counsel appears on behalf of the respondent No.6.

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The petitioner has approached this Court by challenging the order dated 22.05.2023 passed in Misc.(J).Case No.89/2022 whereby the suit of the petitioner, who is the plaintiff in Title Suit No.56/2022 was dismissed by the Court of the learned Civil Judge, Barpeta on the ground that the suit was barred under Section 11 of the Code of Civil Procedure, 1908 (for short, the Code).

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Taking into account the scope of the instant proceedings, this Court would not like to deal with the merits as to whether the suit is barred by the principles of res judicata or not, inasmuch as, any findings herein would impact a decision by the learned Trial Court. But it is relevant to take note of that the application so filed by the respondent Nos.1 to 6 herein, the defendants in Title Suit No.56/2022 was in fact an application in terms with Order VII Rule 11 (d) of the Code and, as such, the question arises as to whether the bar contained in Section 11 of the Code could have been decided at the stage of Order VII Rule 11 (d) of the Code. The law in this regard is well settled by the Supreme Court

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in the case of Srihari Hanumandas Totala Vs. Hemant Vithal Kamat & Ors. , reported in (2021) 9 SCC 99 , wherein it was held that the bar as regards res judicata cannot be decided at the stage of Order VII Rule 11(d) of the Code.

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Considering the above, this Court is of the opinion that the learned Trial Court could not have allowed the application which was registered and numbered as Misc.(J).Case No.89/2022 and consequently dismissed the Title Suit being Title Suit No.56/2022.

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In that view of the matter, this Court interferes with the impugned order dated 22.05.2023 in Misc.(J) Case No.89/2022 as well as the order dated 22.05.2023 in Title Suit No.56/2022 and restores the suit being Title Suit No.56/2022 to the file of the Court of the learned Civil Judge (Senior Division) Barpeta for adjudication of the said suit in accordance with law.

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This Court, however, finds it relevant to clarify that the observation so made by this Court and the interference with the order dated 22.05.2023 in Misc.(J).Case No.89/2022 shall not affect any of the parties in the said suit.

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This Court further observes that the interference so made by this Court herein shall not preclude the learned Trial Court to frame preliminary issues, if so requested by the defendants as well as to invoke the provisions of Order X of the Code in accordance with law.

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The LCR of Misc.(J) Case No.89/2022 be returned back by the Registry forthwith to the learned Trial Court.

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Taking into account that both the parties are duly represented before this Court, they are directed to appear before the learned Trial Court on 09.06.2025.

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The Registry shall ensure that the records of Misc.(J).Case No.89/2022 is placed before the learned Trial Court on or before 09.06.2025.

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JUDGE

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Comparing Assistant

Ajijul Hoque and Anr. v. Mujafar Ali and 5 Ors.

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