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2025 Supreme(Gau) 1963
THE GAUHATI HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
MRIDUL KUMAR KALITA, J.
Samsul Hoque S/o Late Rofatullah Munshi - Appellant
Vs.
Md Wahidur Rahman And Ors. - Respondent
I.A.(Civil) No. 2782, 3379 of 2025
Decided On : 24-11-2025
Advocate Appeared:
For the Appellant :Alhajj I Uddin, Mrs. S Roy,Mr. Masum Alam,M Alamgeer,Mr. A Alam Advocate
For the Respondent: Ms. R Choudhury, For Caveator,Md. Memon Ahmed
A litigant may be excused for a delay in filing an appeal if the delay is due to the failure of their counsel to communicate crucial information, as long as the delay is not inordinate.
Headnote:(A) Limitation Act, 1963 - Section 5 - Condonation of delay - Applicant sought to condone a delay of 83 days in filing a Regular Second Appeal after being unaware of the judgment due to his counsel's failure to inform him. The court, acknowledging the applicant's professional misconduct claim against his counsel, deemed the delay reasonable. (Paras 2-3, 10, 19, 24, 27)
(B) Duty of counsel - A litigant cannot totally absolve responsibility for tracking their case; however, unique circumstances may warrant a liberal view on delay in filing appeals. (Paras 12, 20, 22)
Facts of the case:
The applicant was unaware of the dismissal of his appeal until he received a notice for a title execution case, leading to a delay attributed to his counsel's failure to communicate crucial information.
Findings of Court:
The court found sufficient cause to condone the delay due to the unique circumstances presented.
Issues: The court addressed whether the delay in filing the appeal was justified despite the applicant’s claims of reliance on his counsel.
Ratio Decidendi: The court held that the applicant's ignorance due to the failure of his counsel constituted a sufficient cause for delay, and thus, the delay was condoned.
Result: Delay condoned.
| Table of Content |
|---|
| 1. application for condonation of delay presented. (Para 2 , 3) |
| 2. applicant's reasoning for the delay explained. (Para 4 , 5 , 6 , 7 , 9) |
| 3. counsel's failure to inform applicant emphasized. (Para 8 , 10 , 11) |
| 4. respondent's objection to delay application. (Para 12 , 13 , 14 , 15 , 16) |
| 5. court's review and consideration of delay grounds. (Para 18 , 19 , 20) |
| 6. court's assessment of applicant's diligence. (Para 22 , 23 , 24) |
| 7. ruling to condone delay based on circumstances. (Para 25 , 27) |
| 8. conclusion and order for further proceedings. (Para 28 , 29) |
ORDER :
MRIDUL KUMAR KALITA, J.
1. Heard Ms. S. Roy, the learned counsel for the applicant. Also heard Ms. R. Choudhury, the learned counsel for the respondents.
2. This Interlocutory Application has been filed by the applicant, namely, Samsul Hoque, under Section 5 of the LIMITATION ACT , 1963 for condonation of the delay of 83 days in preferring the connected Regular Second Appeal.
3. The facts relevant for consideration of the instant Interlocutory Application, in brief, are that the applicant has submitted that the applicant has approached this court by filing the connected Regular Second Appeal, wherein he has impugned the judgment and decree dated 20.02.2025, passed by the court of the learned Civil Judge, Senior Division, Bongaigaon, in Title Appeal No. 4/2017, whereby the Appellate Court while dismissing the appeal with cost, has upheld the judgment dated 02.02.2017, passed by the court of learned Munsiff, North Salmara, Abhayapuri in Title Suit No.45/2013, whereby the suit filed by the present appellant was dismissed and the counter claim filed by the respondent No. 1 (defendant No. 1) was decreed.
4. The learned counsel for the applicant has submitted that the delay of 83 days in approaching this court in filing the connected Regular Second Appeal has occasioned due to the fact that the applicant came to know about the impugned judgment and decree dated 20.02.2025, in the last part of the month of June 2025 only.
5. She further submits that the engaged counsel for the applicant before the First Appellate Court, namely, Mr. Khurshid Raja did not inform the applicant about the date on which the judgment of the first appeal was scheduled to be delivered, i.e. 20.02.2025. It was also not informed by the counsel that the appeal preferred by the present applicant has been dismissed by the First Appellate Court. She further submits that the present applicant came to know about the judgment in the last part of June only when he received the notice of Title Execution Case No. 05/2025.
6. She submits that immediately, thereafter, the applicant applied for certified copy of the impugned judgement dated on 28.07.2025 and approached this court by filing the connected Regular Second Appeal thereafter.
7. She submits that the applicant was prevented from approaching this court within the prescribed period of limitation as the circumstances were beyond his control, as he was unaware about the passing of the impugned judgment and decree in the month of February 2025.
8. She further submits that the present applicant has also lodged a complaint against his engaged counsel namely, Md. Khurshid Raja before the Abhayapuri Bar Association on 04.08.2024 and to substantiate her submission, she referred to the copy of said complaint petition annexed to the instant application.
9. She submits that the other grounds of delay caused from the date of receipt of certified copy of the impugned judgment till filing of the instant connected Regular Second Appeal has been explained in paragraph No. 6 of the instant Interlocutory Application. She further submits that a litigant may not be made to suffer due to default of his engaged counsel. She submits that in the instant case, the engaged counsel for the petitioner has defaulted in not informing the date of the delivery of judgment as well as fate of the first appeal filed by the applicant to him within due time, thereby causing delay, on the part
