Page No.# 1/6 GAHC010227962023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Civil)/3247/2023 SHRI BHABEN BHARALI, S/O- LATE KHUMONSON BHARALI, VILL.- RANDHANIJAN, MOUZA- PARBATIA, P.O.- MALOWPATHAR, DIST.- JORHAT (ASSAM) VERSUS ON THE DEATH OF RESPONDENT NO. 1 NAMELY KUSHESWAR DAS, HIS LEGAL HEIRS GIRIDHAR DAS AND ORS 1.1:SHRI GIRIDHAR DAS S/O- LATE KUSHESWAR DAS VILL.- RANDHANIJAN MOUZA- PARBATIA P.O.- MALOWPATHAR DIST.- JORHAT(ASSAM) 1.2:SHRI NABIN DAS S/O- LATE KUSHESWAR DAS VILL.- RANDHANIJAN MOUZA- PARBATIA P.O.- MALOWPATHAR DIST.- JORHAT(ASSAM) 1.3:STRUCK OFF. VIDE HON'BLE COURTS ORDER DTD. 12/03/25 PASSED IN IA (C) NO.3247/2023. 2:SHRI DANGARLORA DAS S/O- LATE KUSHESWAR DAS VILL.- RANDHANIJAN MOUZA- PARBATIA P.O.- MALOWPATHAR Page No.# 2/6 DIST.- JORHAT(ASSAM Advocate for the Petitioner : MR.B K DAS, Advocate for the Respondent : MR. T J MAHANTA, MS.P BHATTACHARYA Linked Case : RSA/121/2005 SHRI BHABEN BHARALI S/O- LATE KHUMONSON BHARALI VILL.- RANDHANIJAN MOUZA- PARBATIA P.O.- MALOWPATHAR DIST.- JORHAT (ASSAM) VERSUS ON THE DEATH OF RESPONDENT NO. 1 NAMELY KUSHESWAR DAS HIS LEGAL HEIRS AND ANR S/O- LATE KONLORA DAS VILL.- RANDHANIJAN MOUZA- PARBATIA P.O.- MALOWPATHAR DIST.- JORHAT(ASSAM) 1.1:SHRI GIRIDHAR DAS S/O- LATE KUSHESWAR DAS VILL.- RANDHANIJAN MOUZA- PARBATIA P.O.- MALOWPATHAR DIST.- JORHAT(ASSAM) 1.2:SHRI NABIN DAS S/O- LATE KUSHESWAR DAS VILL.- RANDHANIJAN MOUZA- PARBATIA P.O.- MALOWPATHAR DIST.- JORHAT(ASSAM) 1.3:SHRI SARULORA DAS S/O- LATE KUSHESWAR DAS VILL.- RANDHANIJAN Page No.# 3/6 MOUZA- PARBATIA P.O.- MALOWPATHAR DIST.- JORHAT(ASSAM) 2:SHRI DANGARLORA DAS S/O- LATE KUSHESWAR DAS VILL.- RANDHANIJAN MOUZA- PARBATIA P.O.- MALOWPATHAR DIST.- JORHAT(ASSAM) ------------ Advocate for : MR. U BHUYAN Advocate for : MR.T J MAHANTA appearing for ON THE DEATH OF RESPONDENT NO. 1 NAMELY KUSHESWAR DAS HIS LEGAL HEIRS AND ANR Linked Case : MC/82/2023 SHRI BHABEN BHARALI S/O- LATE KHUMONSON BHARALI VILL.- RANDHANIJAN MOUZA- PARBATIA P.O.- MALOWPATHAR DIST.- JORHAT (ASSAM) VERSUS ON THE DEATH OF RESPONDENT NO. 1 NAMELY KUSHESWAR DAS HIS LEGAL HEIRS GIRIDHAR DAS AND ORS 1.1:SHRI GIRIDHAR DAS S/O- LATE KUSHESWAR DAS VILL.- RANDHANIJAN MOUZA- PARBATIA P.O.- MALOWPATHAR DIST.- JORHAT(ASSAM) 1.2:SHRI NABIN DAS S/O- LATE KUSHESWAR DAS VILL.- RANDHANIJAN MOUZA- PARBATIA P.O.- MALOWPATHAR DIST.- JORHAT(ASSAM) Page No.# 4/6 1.3:SHRI SARULORA DAS S/O- LATE KUSHESWAR DAS VILL.- RANDHANIJAN MOUZA- PARBATIA P.O.- MALOWPATHAR DIST.- JORHAT(ASSAM) 2:SHRI DANGARLORA DAS S/O- LATE KUSHESWAR DAS VILL.- RANDHANIJAN MOUZA- PARBATIA P.O.- MALOWPATHAR DIST.- JORHAT(ASSAM) ------------ Advocate for : MR. B K DAS Advocate for : MR. B K DAS Advocate for : MR. T J MAHANTA appearing for ON THE DEATH OF RESPONDENT NO. 1 NAMELY KUSHESWAR DAS BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 01.04.2025 1. Heard Ms. R. D. Mozumdar, the learned counsel for the appellant. None appears for the respondent. 2. On perusal of the office note dated 06.03.2024, the notices issued to the respondents are duly served. 3. It also appears that order dated 13.03.2025, the name of respondent No. 1 (c) was stuck off in this case. 4. This application under Section 5 of the Limitation Act, 1963 has been filed by the applicant for condoning the delay of 2056 days in filing the connected the MC No.82 of 2023, which has been filed for restoration of RSA No. 121/2005, which was dismissed for default of the present applicant, when the matter was called on for hearing on 12.10.2025. Page No.# 5/6 5. The learned counsel for the applicant has submitted that the RSA No. 121/2005 was listed in Special Part-II in the Hearing List in the month of August 2015, and thereafter, it was listed on 12.10.2015 and however, on that day, due to inadvertence, the learned counsel has failed to appear before the Court, and consequently, the RSA No. 121/2005 was dismissed for non-prosecution. 6. The learned counsel for the applicant has submitted that since the matter was listed in Special Part-II in the Hearing List, it was not known to the applicant when the matter would be called for, and on 12.10.2015, due to unintentional fault of the counsel for the applicant, the case was dismissed. 7. The learned counsel for the applicant has also submitted that in the connected Regular Second Appeal, the substantial question of law has already been filed on 23.02.2006, and the same is required to be adjudicated by this Court. 8. He also submits that the appellant/applicant may not be made to suffer due to the unintentional fault on the part of the counsel. 9. The learned counsel for the applicant has also cited ruling of the Apex Court in the case of “Ram Nath Sao @ Ram Nath Sahu And Others Vs. Gobardhan Sao and Others” reported in (2002) 3 SCC 195. 10. Since the respondents have not appeared in this case, this case is heard ex-parte. 11. On perusal of the records as well as the grounds mentioned in the condemnation of delay application in Paragraph No. 3 and 4, it appears that the fault for which the connected RSA No. 121/2005 was dismissed for default was of the engaged counsel for the applicant and the applicant was not at fault. 12. As in case of Regular Second Appeal, the parties need not to appear before the Court and it is for the engaged counsel to keep watch of the Cause Page No.# 6/6 List and appear before the Court on the date, on which the second appeal is called for hearing. 13. As the applicant does not appear to be at fault and it was the fault of the engaged counsel, hence, this Court is taking a lenient view of the matter and considering the reasons mentioned in paragraph No. 3 and 4 to be sufficient cause for approaching this Court after a delay of 2056 days. 14. For the reasons discussed herein above, this application for condemnation of delay is allowed and the delay of 2056 days in preferring the connected restoration application under Order 41 Rule 19 of the Code of Civil Procedure, 1908, is hereby allowed, subject to payment of cost of Rs. 5000/-. 15. It is hereby made clear that the said the engaged counsel is liable to pay the said cost, as he was at fault for dismissal of RSA No. 121/2005. 16. This Interlocutory Application is, accordingly, disposed of. JUDGE Comparing Assistant