Page No.# 1/6 GAHC010223392018 2025:GAU-AS:3818 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RSA/293/2018 SHRI ASHOK KUMAR KANU S/O LATE RADHA PRASAD KANU RESIDENT OF WARD NO IV. GAURIPUR TOWN, PO AND PS GAURIPUR, DIST DHUBRI, ASSAM, 783331 VERSUS SMTI KAILASH KANU W/O LATE BHARAT KANU D/O LATE RAM PRASAD KANU RESIDENT OF WARD NO 4, GAURIPUR, PO AND PS GAURIPUR, DIST DHUBRI, ASSAM, 783331 For the Appellant(s) : Mr. S. Chamaria, Advocate For the Respondent(s) : None appears. BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH ORDER Date : 25-03-2025 Heard Mr. S. Chamaria, the learned counsel appearing on behalf of the appellant. None appears on behalf of the Page No.# 2/6 respondent on call. 2. This is an appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short ‘the Code’) challenging the judgment and decree dated 13.07.2018 passed in Title Appeal No.7/2015 by the learned Court of the Additional District Judge, Dhubri (hereinafter referred to as ‘the learned First Appellate Court’) whereby the appeal was allowed thereby setting aside the judgment and decree dated 29.07.2015 passed in Title Suit No.11/2007 by the Court of the learned Civil Judge, Dhubri (hereinafter referred to as ‘the learned Trial Court’). 3. It is seen that vide an order dated 25.11.2021, this Court formulated a substantial question of law which reads as under: “a. Whether the First Appellate Court was justified in decreeing the suit in favour of the plaintiffs without setting aside the findings of the Trial Court in so far as the issue of limitation was concerned?” 4. The question arises in the present facts as to whether the substantial question of law so formulated is involved in the instant appeal. 5. This Court finds it relevant to observe that from the substantial question of law so framed, it has a direct nexus with the Issue No.2 so framed by the learned Trial Court to the effect Page No.# 3/6 as to whether the suit is barred by limitation. 6. A perusal of the judgment and decree passed by the learned Trial Court dated 29.07.2015 and more particularly from paragraph Nos. 48 to 55 of the judgment, it was opined that the suit was barred by limitation. This Court further finds it relevant to take note of that the learned First Appellate Court while allowing the said appeal vide the impugned judgment and decree dated 13.07.2018, at paragraph No.23 held that the learned First Appellate Court was not inclined to interfere with the decision arrived at by the learned Trial Court in respect to the Issue No.2 wherein the learned Trial Court held that the suit was barred by limitation. In other words, the learned First Appellate Court had concurred with the view of the learned Trial Court that the suit was barred by limitation. In spite of that, the learned First Appellate Court decreed the suit. It is the opinion of this Court that the learned First Appellate Court did not apply its mind in passing the impugned judgment and decree dated 13.07.2018 inasmuch as if the suit is barred by limitation, no relief could have been granted, not to speak of decreeing the entire suit. 7. Consequently, it is therefore the opinion of this Court that the learned First Appellate Court did not decide the Appeal in the manner envisaged under law. The impugned judgment and Page No.# 4/6 decree therefore suffers from non-application of mind. Accordingly, the substantial question of law so formulated is duly involved in the instant appeal. 8. This Court having taken note of the impugned judgment and decree passed by the learned First Appellate Court and the manner in which the appeal was decided, is of the opinion that this is a fit case wherein the Appeal is required to be remanded back to the learned First Appellate Court for a decision afresh by setting aside the impugned judgment and decree. 9. Accordingly, in exercise of powers under Order XLI Rule 23(A) of the Code, this Court remands the Appeal back to the learned First Appellate Court for a decision afresh. Further to that, taking into account the provisions of Order XLI Rule 26(A) of the Code, this Court fixes the date appearance of the parties before the learned First Appellate Court to be on 20.05.2025 on which date, the appellant herein shall appear before the learned First Appellate Court. 10. Taking into account that the respondent herein who is the plaintiff is not represented, the learned First Appellate Court shall issue due notice upon the plaintiff who is the Appellant before the learned First Appellate Court and upon service of notice proceed for disposal of the appeal in accordance with Page No.# 5/6 law. 11. The Registry is directed to forthwith send back the records to the learned First Appellate Court to ensure that the learned First Appellate Court is in possession of the records on the next date so fixed hereinabove by this Court. 12. The impugned judgment and decree dated 13.07.2018 is set aside and quashed. There shall be no order as to costs. 13. Before parting with the records, this Court finds it pertinent to observe that in the instant order, this Court has not dealt with the merits of the decision passed by the learned First Appellate Court for the reason that this Court has remanded the appeal back to the learned First Appellate Court for the reasons abovementioned. The decision of this Court to set aside the impugned judgment and order dated 13.07.2018 by the present order would not influence the learned First Appellate Court to decide the appeal on its merits including the question of limitation i.e. Issue No.2. 14. With above observations and directions, the instant appeal stands disposed of. J U D G E Page No.# 6/6 Comparing Assistant