Disposed

Moyez Uddin Laskar and 2 Ors. v. Md. Ataur Rahman and 4 Ors.

Gauhati HC18 May 2025CRP(IO)/86/2025

Case brief

AI extract

What is this about?

Civil revision against rejection of a written statement-cum-counterclaim filed late in a title suit. The High Court held the counterclaim could be filed before framing of issues and that substantive rights should give way to procedural loss, directed acceptance on payment of Rs.25,000 cost.

What did the court decide?

Impugned order interfered with; trial court directed to accept written statement-cum-counterclaim upon deposit of Rs.25,000 cost; interim order vacated.

Moyez Uddin Laskar and 2 Ors. Vs Md. Ataur Rahman and 4… — Property and Title | Gauhati HC (2025)

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GAHC010007632025

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

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Case No. : CRP(IO)/86/2025

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MOYEZ UDDIN LASKAR AND 2 ORS S/O LATE KAMAR UDDIN LASKAR, VILL- TUPKHANA PART-I, P.O.ARUNACHAL, DIST- CACHAR, PIN-788025

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2: MINAZ UDDIN LASKAR S/O LATE KAMAR UDDIN LASKAR VILL- TUPKHANA PART-I P.O.- ARUNACHAL DIST- CACHAR PIN-788025

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3: MOFIZ UDDIN LASKAR S/O LATE KAMAR UDDIN LASKAR VILL- TUPKHANA PART-I P.O.- ARUNACHAL DIST- CACHAR PIN-78802

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VERSUS

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MD. ATAUR RAHMAN AND 4 ORS S/O LATE HAZI ABDUL SATTAR LASKAR, R/O VILL- TUPKHANA PART-I, P.O.- ARUNACHAL, DIST- CACHAR, ASSAM, PIN-788025

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2:MOTIUR RAHAMAN LASKAR S/O MAKRAM ALI LASKAR R/O VILL- TUPKHANA PART-I P.O.- ARUNACHAL DIST- CACHAR PIN-788025

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3:SUHAG UDDIN LASKAR S/O MAKRAM ALI LASKAR R/O VILL- TUPKHANA PART-I

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P.O.- ARUNACHAL DIST- CACHAR PIN-788025

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4:RAJU UDDIN LASKAR S/O MAKRAM ALI LASKAR R/O VILL- TUPKHANA PART-I P.O.- ARUNACHAL DIST- CACHAR PIN-788025 5:JUNU UDDIN LASKAR S/O MAKRAM ALI LASKAR R/O VILL- TUPKHANA PART-I P.O.- ARUNACHAL DIST- CACHAR PIN-78802

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For the petitioner (s) : Mr. K. K. Dey, Advocate

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For the respondent (s) : Mr. S. D. Purkayastha, Advocate

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BEFORE

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HON’BLE MR. JUSTICE DEVASHIS BARUAH O R D E R

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19.05.2025

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Heard Mr. K. K. Dey, the learned counsel appearing on behalf of the petitioners and Mr. S. D. Purkayastha, the learned counsel appearing on behalf of the respondent No.1.

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The petitioners herein have approached this Court challenging the order dated 26.09.2024 passed in Title Suit No.73/2022 whereby the learned Court of the Civil Judge (Junior Division) No.1, Cachar, Silchar has refused to accept the written

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statement-cum-counterclaim on the ground that the written statement-cum-counterclaim was filed 39 days from the expiration of 90 days as mandated under Order VIII Rule 1 of the Code of Civil Procedure, 1908 (for short, ‘the Code’).

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This Court has duly taken note of the application and the reasons so assigned which resulted in the delay in filing the written statement. This Court further takes note of the settled position of law that the counterclaim can be filed prior to the issues being framed.

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Taking into account the above, it is the opinion of this Court that the learned Trial Court vide the impugned order dated 26.09.2024 ought not to have rejected the counterclaim so filed by the petitioner. This Court further is of the opinion taking into account the grounds and reasons so assigned that the learned Trial Court ought to have also exercised its jurisdiction under Section 148 of the Code and thereby granted some additional time taking into account that the statement-cum-counterclaim was already brought on record. This Court is further of the opinion that the written statement as well as the counterclaim being substantive rights, the said shall have to give way to the procedural loss.

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Accordingly, this Court deems it proper to interfere with the

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order dated 26.09.2024 passed in Title Suit No.73/2022.

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This Court is also of the opinion that the action on the part of the petitioners also shows lack of diligence as well as negligence in as much as the impugned order was passed on 26.09.2024 and the petitioners have approached this Court on 07.03.2025. This delay in approaching this Court has delayed the further disposal of the suit.

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Considering the above, it is the opinion of this Court that some cost has to be imposed upon the petitioners so that the plaintiff who is the respondent No.1 herein can be compensated.

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Accordingly, the instant petition stands disposed of with the following observations and directions:-

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(i) The impugned order dated 26.09.2024 passed in Title Suit No.73/2022 is interfered with.

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(ii) The interim order passed by this Court on 12.03.2025 is vacated and the parties herein are directed to appear before the learned Trial Court on 30.06.2025.

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(iii) The petitioners herein is imposed a cost of Rs.25,000/which the petitioners have to deposit before the learned Trial Court on 30.06.2025.

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(iv) The learned Trial Court is directed to accept the written

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statement-cum-counterclaim subject to deposit of Rs.25,000/- as directed herein above.

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(v) The deposit of Rs.25,000/- shall be a condition precedent for acceptance of the written statement-cumcounterclaim.

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(vi) The plaintiff is given the liberty to file an application for release of the said amount of Rs.25,000/- and the learned Trial Court shall pass appropriate orders in that regard.

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(vii) The learned Trial Court upon acceptance of the written statement-cum-counterclaim shall provide due opportunity to the plaintiff to file written statement to the counterclaim.

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Comparing Assistant

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JUDGE

Moyez Uddin Laskar and 2 Ors. v. Md. Ataur Rahman and 4 Ors.

Case brief

What is this about?

What did the court decide?

Moyez Uddin Laskar and 2 Ors. v. Md. Ataur Rahman and 4 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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