Gauhati High Court
Nazima Khan And 2 Ors vs Sri Chattra Kr Das on 21 May, 2026
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GAHC010257482025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/3894/2025
NAZIMA KHAN AND 2 ORS
W/O LATE ABDUR RASHID KHAN, R/OVILL. ISLAMPUR (BOC), P.O.
BALADMARI, P.S. AND DIST. GOALPARA, ASSAM, PIN783121
2: ATTIQUE SHAHDAT KHAN
S/O LATE ABDUR RASHID KHAN
R/O VILL. ISLAMPUR (BOC)
P.O. BALADMARI
P.S. AND DIST. GOALPARA
ASSAM
PIN 783121
3: TANJEEL KHAN
S/O LATE ABDUR RASHID KHAN
R/O VILL. ISLAMPUR (BOC)
P.O. BALADMARI
P.S. AND DIST. GOALPARA
ASSAM
PIN78312
VERSUS
SRI CHATTRA KR DAS
S/O LATE DWIJENDRA KR. DAS, R/O VILL. GOALTOLI, P.O. BALADMARI,
DIST. GOALPARA, ASSAM, PIN 783384
Advocate for the Petitioner : MS. R CHOUDHURY, B DAS,MD. MEMON AHMED,MR. A M
AHMED
Advocate for the Respondent : MR. A R SIKDAR, J A SIKDAR,MR. M H TALUKDAR
Page No.# 2/10
Linked Case : CRP(IO)/157/2024
CHATTRA KR DAS
S/O LATE DWIJENDRA KR. DAS
R/O GOALTOLI
P.O.-BALADMARI
P.S. AND DIST- GOALPARA
ASSAM
PIN-783121
VERSUS
NAZMINA KHATUN AND 2 ORS
W/O LATE ABDUR RASHID KHAN
R/O ISLAMPUR (B.O.C.)
P.O.-BALADMARI
P.S. AND DIST- GOALPARA
ASSAM
PIN-783121
2:ATTIQUE SHAHADAT KHAN
S/O LATE ABDUR RASHID KHAN
R/O ISLAMPUR (B.O.C.)
P.O.-BALADMARI
P.S. AND DIST- GOALPARA
ASSAM
PIN-783121
3:TANJEEL KHAN
S/O LATE ABDUR RASHID KHAN
R/O ISLAMPUR (B.O.C.)
P.O.-BALADMARI
P.S. AND DIST- GOALPARA
ASSAM
PIN-783121
------------
Advocate for : MR. A R SIKDAR
Advocate for : appearing for NAZMINA KHATUN AND 2 ORS
Linked Case : CROP/0/0
NAZMINA KHAN ALIAS NAZMINA KHATUN
ASSAM
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VERSUS
SRI CHATTRA KR DAS
ASSAM
------------
Advocate for : PUJA GHOSH
Advocate for : appearing for SRI CHATTRA KR DAS
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date – 21.05.2026
1. Heard Ms. R. Choudhury, the learned senior counsel assisted by Mr.
A. M. Ahmed, the learned counsel for the applicants. Also heard Mr.
A. R. Sikdar, the learned counsel for the respondent.
2. This Interlocutory Application under Section 5 of the Limitation Act,
1963 has been filed by the applicants for condoning the delay of 199
days in filing the connected review petition wherein the petitioners
have prayed for review of the order dated 02.04.2025 passed by this
Court in CRP(I/O) No.157/2024.
3. The facts relevant for consideration of the instant Interlocutory
Application, in brief, are that the present respondent, namely, Sri
Chattra Kumar Das had instituted a Title Suit bearing No. 21/ 2016
before the Court of learned Civil Judge, Goalpara praying for specific
performance of contract against the predecessor of the present
applicants, namely, late Abdul Rashid Khan. The aforesaid title suit
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proceeded ex parte and an ex parte judgment was given by the Trial
Court on 07.05.2018.
4. Thereafter, a Title Execution Case bearing T. Ex. Case No. 02/2019
was instituted by the present respondent. The said Title Execution
Case was also disposed of after execution of the decree.
5. The present applicants thereafter, filed an application under Order 9
Rule 13 of the Code of Civil Procedure, 1908 along with an
application for condonation of delay in preferring the said application
before the Trial Court for setting aside the ex-parte decree. The Trial
Court, by its order dated 05.02.2024, passed in Misc. (J) Case No.
88/2022, condoned the delay in filing the application under Order 9
Rule 13 for setting aside ex-parte judgment dated 07.05.2018 in
Title Suit No. 21/2016. Being aggrieved by the aforesaid order, the
present respondent approached this Court by filing the CRP(I/O)
No.157/2024.
6. Ms. R. Choudhury, the learned senior counsel for the applicants
submits that in the title suit filed by the present respondent, the suit
proceeded ex-parte as the notice was held to be served upon father
of the predecessor in interest of the present applicants, namely, one
Rafiqul Islam. However, it is contended by the applicants that no
such brother of late Abdul Rashid Khan by the name of Rafiqul Islam
exists.
7. The learned senior counsel for the applicants further submits that
upon receipt of the notice in the CRP(I/O) No. 157/2024, the
applicants contacted one Rafiqul Islam, the learned counsel, at his
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residential chamber at Ghoramara, Hatigaon and engaged him to
defend them before this Court by paying him fees as well as by
giving him signed vakalatnama. It is further submitted by the
learned senior counsel for the applicants that on 16.11.2024, when
the applicants inquired the said engaged counsel about the case, he
intimated them that the date of hearing of the case would be
intimated later on and notices were issued.
8. The learned senior counsel for the applicants has submitted that the
engaged counsel even did not provide the case number to the
applicants and assured them that he will provide the copy of the
final order to them very soon. However, later on, the applicants
came to know through the online portal of the High Court that the
said CRP(I/O) has been disposed of by this Court on 02.04.2025 and
on that day, none had appeared for the applicants when the matter
was called on for hearing. It also came to their notice that even
vakalatnama was not filed by the engaged counsel in the said case.
9. The learned senior counsel for the applicants further submits that
later on the engaged counsel for the applicants returned them the
brief on 12.10.2025 and also returned the fees, which he took in
installments. The learned senior counsel for the applicants submits
that the present applicants were cheated by the aforementioned
legal counsel in the name of providing legal assistance and,
accordingly, the applicants also filed a complaint against the
engaged counsel namely, Rafiqul Islam before the Bar Council of
Assam, Nagaland, Mizoram and Arunachal Pradesh praying for taking
necessary action against him.
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10. She further submits that in the process of pursuing action against
the engaged counsel Rafiqul Islam, the delay of 199 days occurred
in preferring the connected review petition before this Court. The
learned senior counsel for the applicants submits that the applicants
were made to suffer due to no fault of their own as their engaged
counsel committed professional misconduct by not appearing before
the Court after he was engaged by the present applicants, on the
day when the matter was called on for hearing. She, therefore,
submits that the delay of 199 days which has occurred in preferring
the connected review petition may be condoned for the ends of
justice and the review petition filed by the present applicants may be
registered and heard. In support of her submission, the learned
senior counsel for the applicants has cited following rulings.
i. Prakash Seshmal Jain Vs. Sukhmal & Sons and Another
reported in (1998) 9 SCC 718
ii. N. Balakrishnan Vs. N. Krishnamurthy reported in
(1998) 7 SCC 123
11. On the other hand, Mr. A. R. Sikdar, the learned counsel for the
respondent has submitted that the applicants have failed to show
any sufficient cause for the inordinate delay of 199 days in preferring
the connected review petition. He submits that the applicants have
made false statement regarding coming to know the number of the
CRP(I/O), which was pending in this Court as the notices received
by them clearly mention about the case number of the CRP(I/O)
therein. He submits that the applicants have also failed to mention
as to on which date they came to know about the ex-parte order
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passed in CRP(I/O). He further submits that the order dated
02.04.2025 passed by this Court in CRP(I/O) No.157/2024 was
submitted before the Court of the learned Civil Judge (Senior
Division), Goalpara on 04.06.2025 in Misc (J) Case No. 83/2022,
therefore, it can be held that the present applicants came to know
about the aforesaid order on 04.06.2025.
12. He further submits that even if the version of the applicants is taken
into consideration that they came to know about the order passed in
CRP(I/O) after 19.08.2025, still they have failed to explain the delay
in preferring the connected review petition which was filed by the
present applicants only on 17.11.2025.
13. He submits that since apparently the applicants have resorted to
falsehood in suppressing the date of knowledge about the order
dated 02.04.2025 passed in CRP(I/O) No. 157/2024 hence, he
submits that the applicants are not entitled to get the benefit of a
discretionary relief like condonation of delay in a case of such a huge
delay of 199 days.
14. The learned counsel for the respondent submits that the law of
limitation creates a right after lapse of the period of limitation in
favour of the respondent, therefore, the party seeking condonation
of delay has an obligation to explain the delay by showing the
sufficient cause. However, in the instant case, he submits that the
applicants were negligent and have failed to explain the delay of 199
days in preferring the review petition, therefore, he prays for
dismissing the instant Interlocutory Application. In support of his
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submission, the learned counsel for the respondent has cited the
following rulings.
i. Lanka Venkateshwarlu (D) by LRS Vs. State of AP and
Others reported in (2011) 4 SCC 363.
ii. Pundlik Jalam Patil (D) by LRS Vs. Executive Engineer
Jalgaon Medium Project and Another reported in (2008)
17 SCC 448.
iii. Ramlal Motilal and Chhotelal Vs. Rewa Coalfields Ltd.
reported in (1962) to SCR 762.
iv. Kamlesh Verma Vs. Mayawati and others reported in
(2013) 8 SCC 320.
15. I have considered the submissions made by the learned counsel for
both sides. I have also gone through the materials available on
record. I have also gone through the rulings cited by the learned
counsel for both sides in support of their respective submissions.
16. On perusal of the averments made by the applicants in this instant
Interlocutory Application, it appears that though the applicants have
stated that their counsel did not provide the case number to them,
however they have themselves stated in paragraph No. 7 of the
instant Interlocutory Application that they received the notice from
the High Court in CRP(I/O) No. 157/2024. The acknowledgement of
the receipt of notice by the applicants itself shows that they were
aware about the case number of the CRP(I/O).
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17. Be that as it may, the applicants have not stated specifically as to on
which date they came to know about the order dated 02.04.2025
passed in CRP(I/O) No. 157/2024. Further, though the applicants
have vividly described in the instant Interlocutory Application as to
how their engaged counsel namely, Mr. Rafiqul Islam committed
professional misconduct. However, they have not explained
specifically as to after coming to know about the order dated
02.04.2025 why it took 199 days for them to prefer the review
petition.
18. The learned senior counsel for the applicants has only stated that in
the process of pursuing the complaint against the erring counsel,
namely, Rafiqul Islam before the Bar Council of Assam, Nagaland,
Mizoram and Arunachal Pradesh, the delay occurred in preferring the
connected review petition.
19. This Court is of the view that the applicants could have explained
more specifically the reasons for delay in preferring the connected
review petition. However, the entire thrust of the applicants in this
Interlocutory Application is only in showing the professional
misconduct committed by Rafiqul Islam.
20. Though in paragraph No.12 of the instant Interlocutory Application,
the applicants have not stated in so many words the reason for the
delay in preferring the connected review petition. However,
considering the circumstances to which the applicants were
subjected to due to alleged professional misconduct committed by
their engaged counsel, this Court is taking a liberal view of the
matter and accordingly, condones the delay of 199 days in preferring
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the connected review petition subject to payment of a cost of Rs.
5,000/- by the applicants to the respondent within a period of 15
days from the date of this order.
21. The said amount of cost shall be deposited before the Registry of
this Court within the said period and if the said cost is deposited, the
same shall be disbursed to the respondent by the Registry.
22. On such deposit of cost, the connected review petition shall be
registered and listed for admission.
23. With the above observation, this Interlocutory Application is,
accordingly, allowed.
JUDGE
Comparing Assistant
