Allowed¶56

Smt. Susila Bala Ray and 6 Ors. v. Karuna Ray and 5 Ors.

Gauhati HC12 Jul 2026CRP(IO)/308/2026

Case brief

AI extract

What is this about?

Gauhati High Court; CRP(IO)/308/2026; Justice Robin Phukan; 13.07.2026; condonation of delay; substitution of legal heirs; setting aside abatement; Order XXII CPC; Order 22 Rule 9; Section 5 Limitation Act 1963; Articles 120 and 121; 150-day outer limit (90+60); actual delay 19 days versus 106 days recorded; Om Prakash Gupta Alias Lalloowa (2025) 2 SCR 937; Ram Nath Sao (2002) 3 SCC 195; liberal construction; substantial justice; T.S. No. 44/2018 Bongaigaon; impugned order set aside; matter remanded for fresh order; parties to bear own costs.

What did the court decide?

Impugned order dated 03.11.2025 set aside; Trial Court directed to examine the matter afresh and pass a fresh order on the Section 5 condonation petition in light of Om Prakash Gupta (para 11) and Ram Nath Sao; parties to bear their own costs. ¶56

Smt. Susila Bala Ray and 6 Ors. Vs Karuna Ray and 5… — Writ and Judicial Review | Gauhati HC (2026)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the impugned order rejecting the petition for condonation of delay (and consequently dismissing the substitution and setting-aside-abatement petitions) on the ground of an unexplained delay of 106 days is sustainable, when the actual delay in filing the application for setting aside abatement was only 19 days.

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Court's answer

Applying the law laid down in Om Prakash Gupta (para 11), the total time-frame for filing applications for substitution and for setting aside abatement under Articles 120 and 121 of the Limitation Act being 150 days, the actual delay in the present case was only 19 days - an aspect which eschewed the consideration of the learned Trial Court.

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Ratio / Principle

Endorsing Ram Nath Sao, the expression “sufficient cause” under Section 5 of the Limitation Act or Order 22 Rule 9 CPC (or similar provisions) must receive a liberal construction so as to advance substantial justice; acceptance of the explanation should be the rule and refusal the exception.

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Key takeaways

On the given factual and legal matrix, the impugned order fails to withstand legal scrutiny.ratio¶53
The impugned order dated 03.11.2025 is set aside.ratio¶56
The learned Trial Court is directed to examine the matter afresh and pass a fresh order on the petition for condonation of delay under Section 5 of the Limitation Act, keeping in mind the propositions in Om Prakash Gupta (para 11) and Ram Nath Sao.ratio

Detailed headnote1 paragraphs

Civil Revision (Article 227, Constitution read with S.151 CPC) against order dated 03.11.2025 of Civil Judge (Sr. Div.), Bongaigaon in T.S. No. 44/2018, rejecting condonation of delay and dismissing the substitution and setting-aside-abatement petitions filed after the demise of defendant No. 1 on 17.10.2022 (petitions filed 04.04.2023). Held, relying on Om Prakash Gupta Alias Lalloowa (2025) 2 SCR 937, para 11, that the total time-frame under Articles 120 and 121 of the Limitation Act is 150 days and Section 5 condonation arises only thereafter; the actual delay was only 19 days, not the 106 days recorded by the Trial Court, which eschewed consideration of this aspect. Endorsing Ram Nath Sao (2002) 3 SCC 195, 'sufficient cause' under Section 5 Limitation Act / Order 22 Rule 9 CPC must receive liberal construction to advance substantial justice. Impugned order set aside; Trial Court directed to decide the condonation petition afresh; CRP disposed of at motion stage, parties to bear their own costs.

Page No.# 1/9

GAHC010135132026

2026:GAU-AS:9496

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

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Case No. : CRP(IO)/308/2026

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SMT. SUSILA BALA RAY AND 6 ORS. W/O LT SANTARA @ BHUPEN RAY, R/O VILL- MEDHIPARA, P.O.- DEOHATI, P.S.- ABHAYAPURI, DIST- BONGAIGAON, ASSAM

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2: SAMIT CH RAY S/O LT SANTARA @ BHUPEN RAY R/O VILL- MEDHIPARA P.O.- DEOHATI P.S.- ABHAYAPURI DIST- BONGAIGAON ASSAM 3: NITAI CH. RAY S/O LT SANTARA @ BHUPEN RAY R/O VILL- MEDHIPARA P.O.- DEOHATI P.S.- ABHAYAPURI DIST- BONGAIGAON ASSAM 4: SMT. SOME BALA RAY W/O LATE HEMEN CH. RAY R/O VILL- MEDHIPARA P.O.- DEOHATI P.S.- ABHAYAPURI DIST- BONGAIGAON ASSAM 5: DIPAK KR. RAY S/O LATE HEMEN CH. RAY R/O VILL- MEDHIPARA P.O.- DEOHATI P.S.- ABHAYAPURI DIST- BONGAIGAON

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Page No.# 2/9

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ASSAM

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6: SMT. RINA PATHAK RAY W/O LATE NRIPEN CH. RAY R/O VILL- MEDHIPARA P.O.- DEOHATI P.S.- ABHAYAPURI DIST- BONGAIGAON ASSAM

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7: MANJIT RAY S/O LATE HEMEN CH. RAY R/O VILL- MEDHIPARA P.O.- DEOHATI P.S.- ABHAYAPURI DIST- BONGAIGAON ASSA

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VERSUS

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KARUNA RAY AND 5 ORS.

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S/O LATE ABHAY CHARAN RAY, R/O ABHAYAPURI TOWN, WARD NO. 3 (NEAR PWD WORKSHOP), P.O. AND P.S.- ABHAYAPURI, DISTBONGAIGAON, ASSAM, PIN- 783384

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2:SMT. JUNU BALA RAY D/O LATE ABHAY CHARAN RAY R/O ABHAYAPURI TOWN WARD NO. 3 (NEAR PWD WORKSHOP) P.O. AND P.S.- ABHAYAPURI DIST- BONGAIGAON ASSAM PIN- 783384

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3:SMT. PADMABATI RAY D/O LATE ABHAY CHARAN RAY W/O SRI DIMBU SARKAR R/O ABHAYAPURI TOWN WARD NO. 3 (NEAR PWD WORKSHOP) P.O. AND P.S.- ABHAYAPURI DIST- BONGAIGAON ASSAM PIN- 783384

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4:SMT. KANIKA RAY D/O LATE ABHAY CHARAN RAY W/O SRI HEMEN RAY R/O BHAKATPARA

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P.O. AND P.S.- CHAPAR DIST- DHUBRI ASSAM PIN- 783371 5:PARAMESWAR RAY @ PANKAJ RAY S/O LATE DAMBARUDHAR RAY R/O ABHAYAPURI TOWN WARD NO. 3 (NEAR PWD WORKSHOP) P.O. AND P.S.- ABHAYAPURI DIST- BONGAIGAON ASSAM PIN- 783384

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6:SMT. PINKI BALA RAY @ SUBHADRA RAY D/O LATE DAMBARUDHAR RAY W/O SRI RAJU DAS R/O VILL- KANDULIMARI P.O.- CHOKAPARA P.S. AND DIST- BONGAIGAON ASSAM PIN- 78338

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Advocate for the Petitioner : MR. B J MUKHERJEE, MS R SAHA

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Advocate for the Respondent : ,

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BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN

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ORDER

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13.07.2026

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Heard Mr. B. J. Mukherjee, learned counsel for the petitioners.

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2. In this petition, under Article 227 of the Constitution of India, read with Section 151 of the Code of Civil Procedure, the petitioners have challenged the Order, dated 03.11.2025, passed by the learned Civil Judge (Sr. Div.), Bongaigaon, in T.S. No. 44/2018.

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3. It is to be noted here that vide impugned order, dated 03.11.2025, the

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Page No.# 4/9

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learned Civil Judge (Sr. Div.), Bongaigaon (hereinafter, ‘Trial Court’), has rejected the petition filed by the petitioner for condonation of delay and consequently, dismissed the substitution petition and also the petition for setting aside abatement.

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4. Mr. Mukherjee, learned counsel for the petitioners, submits that the petitioners, as plaintiffs, have instituted a title suit, being Title Suit No. 44/2018, before the Court of the learned Civil Judge (Sr. Div.), Bongaigaon, and during the pendency of the said suit, the defendant No. 1 suffered demise on 17.10.2022. Thereafter, the petitioners herein have filed 3 (three) petitions, one for substitution of legal heirs, one for setting aside abatement and another for condonation of delay on 04.04.2023, before the learned Trial Court. Then one of the respondents herein, as defendant, has filed objection against the said petitions.

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4.1 Mr. Mukherjee, further submits that the learned Trial Court, vide impugned order dated 03.11.2025, was pleased to reject the petition for condonation of delay and consequently, dismissed the other two petitions also, as not maintainable and time barred. Being aggrieved, the petitioners have approached this Court, by filing the present petition.

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4.2. Mr. Mukherjee, referring to paragraph No. 7 of the petition, submits that in the petition No. 1237, the period of delay has been mentioned as 106 days. But, in fact, the delay was much less than that. He also submits that the defendant No. 1 suffered demise on 17.10.2022, and the petitions were filed on 04.04.2023, i.e., after 169 days from the date of death of the defendant No. 1. He also submits that as per the provisions of Order XXII of the CPC and the Limitation Act, 1963, a substitution application is required to be filed within a

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period of 90 days from the date of death and if such an application is not filed within the said period, then the suit abates as against the said deceased person and the limitation period to set aside abatement is 60 days. Thus, after the 150^th day of death, an application is required to be filed for condonation of delay in filing the application for setting aside abatement. However, in the instant case, inadvertently, in the petition for substitution and setting aside abatement and delay condonation petitions, the period was mentioned as 106 days, wherein, the actual delay in filing the petition for setting aside abatement was only 19 days.

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4.3 In support of his submission, Mr. Mukherjee has referred to a decision of the Hon’ble Supreme Court, in the case of Om Prakash Gupta Alias Lalloowa (Now Deceased) Through Lrs & Ors. vs. Satish Chandra (Now Deceased) Through Lrs, reported in (2025) 2 SCR 937. He has also referred to another decision of the Hon’ble Supreme Court in the case of Ram Nath Sao alias Ram Nath Sahu and Others Vs. Gobardhan Sao and Others, reported in (2002) 3 SCC 195, to contend that the expression ‘sufficient cause’ within the meaning of Section 5 of the Limitation Act or Order 22 Rule 9 of the Code should receive liberal construction so as to advance substantial justice.

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4.4. Referring to the impugned order, Mr. Mukharjee submits that the learned Trial Court had rejected the petition for condonation of delay on the ground of failing to assign any reasonable or convincing ground to justify the inordinate delay of 106 days. But, in fact, the actual delay was only 19 days. On such count, the impugned order is illegal and arbitrary and liable to be interfered with.

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5. Having heard the submission of Mr. Mukherjee, learned counsel for the petitioners, this Court has carefully gone through the petition and the documents placed on record and also perused the impugned order, dated 03.11.2025, and it appears that the learned Trial Court has held that the delay of 106 days has not properly been explained and thereafter, dismissed the petition.

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6. It also appears from the decision of the Hon’ble Supreme Court in the case of Om Prakash Gupta Alias Lalloowa (supra), especially from paragraph No. 11; that the total time frame for filing an application for substitution and for setting aside abatement, as outlined in Articles 120 and 121 of the Limitation Act, is 150 (90+60) days and the question of condonation of delay through an application under Section 5 of the Limitation Act arises only after this period and not on the 91^st day, when the suit/appeal abates.

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6.1. The relevant paragraph is extracted herein below for ready reference:-

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“ 11. Rule 1 of Order XXII, CPC provides that when a party to a suit passes away, the suit will not abate if the right to sue survives. In instances where the right to sue does survive, the procedure for bringing on record the legal representative(s) of the plaintiff/ appellant and the defendant/respondent are provided in Rules 3 and 4, respectively, of Order XXII. The suit/appeal automatically abates when an application to substitute the legal representative(s) of the deceased party is not filed 11 within the prescribed limitation period of 90 days from the date of death, as stipulated by Article 120 of the Limitation Act, 1963. It could well be so that death of a defendant/respondent is not made known to the plaintiff/appellant within 90 days, being the period of limitation. Does it mean that the suit or appeal will not

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abate? The answer in view of the scheme of Order XXII cannot be in the negative. In the event the plaintiff/appellant derives knowledge of death immediately after the suit/appeal has abated, the remedy available is to file an application seeking setting aside of the abatement, the limitation wherefor is stipulated in Article 121 and which allows a period of 60 days. Therefore, between the 91st and the 150th day after the death, one has to file an application for setting aside the abatement. On the 151st day, this remedy becomes time-barred; consequently, any application seeking to set aside the abatement must then be accompanied by a request contained in an application for condonation of delay under Section 5 of the Limitation Act in filing the application for setting aside the abatement. Thus, the total time-frame for filing an application for substitution and for setting aside abatement, as outlined in Articles 120 and 121 of the Limitation Act, is 150 (90 + 60) days. The question of condonation of delay, through an application under Section 5 of the Limitation Act, arises only after this period and not on the 91st day when the suit/appeal abates.

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…………………………… ..

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……………………………………”

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7. And application of the aforesaid proposition, to the given factual matrix of the case in hand, would reveal that the actual delay in filing the substitution petition and setting aside abatement is only 19 days. But, it appears from the impugned order that this aspect eschewed consideration of the learned Trial Court.

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8. Furthermore, in the case of Ram Nath Sao alias Ram Nath Sahu and

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others (supra) Hon’ble Supreme Court has emphasized that the expression “sufficient cause” within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice. The relevant paragraph is extracted herein below:-

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“ 11. Thus, it becomes plain that the expression “sufficient cause” within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute “sufficient cause” or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party.

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……………… .”

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9. Under the given factual and legal matrix, this Court is of the considered opinion that the impugned order fails to withstand the legal scrutiny. Therefore, this Court is inclined to dispose of this petition by directing the learned Trial Court to examine the matter a fresh, and thereafter, to pass a fresh order on the petition for condonation of delay filed under Section 5 of the Limitation Act, keeping in mind the proposition of law laid down by Hon’ble Supreme Court in the case of Om Prakash Gupta Alias Lalloowa (supra), especially,

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paragraph No. 11, and also in the case of Ram Nath Sao alias Ram Nath Sahu and others (supra).

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10. And in order to facilitate carrying out of the said exercise, the impugned order dated 03.11.2025 stands set aside.

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11. In terms of the above, this Civil Revision Petition stands disposed of, at its motion stage itself, leaving the parties to bear their own costs.

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JUDGE

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Comparing Assistant

Smt. Susila Bala Ray and 6 Ors. v. Karuna Ray and 5 Ors.

Case brief

What is this about?

What did the court decide?

Smt. Susila Bala Ray and 6 Ors. v. Karuna Ray and 5 Ors.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

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Coram

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