Page No.# 1/10 GAHC010251152024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/547/2024 MD. KOLIMUDDIN AND 6 ORS S/O LT. ATAR ALI @ APTAR ALI, R/O VILL- DONGIBIL, P.O.-DONGIBIL, P.S.- BIHPURIA, MOUZA- BIHPURIA, DIST-LAKHIMPUR 2: TAMAR ALI @ TAMARUDDIN S/O LT. ATAR ALI @ APTAR ALI R/O VILL- DONGIBIL P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPUR 3: TAHER ALI S/O LT. ATAR ALI @ APTAR ALI R/O VILL- DONGIBIL P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPUR 4: ESHA BANU D/O LT. ATAR ALI @ APTAR ALI W/O LT. BUDYA R/O VILL- DONGIBIL P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPUR 5: FIROZA KHATUN D/O LT. ATAR ALI @ APTAR ALI W/O UNKNOWN R/O VILL- DONGIBIL P.O.-DONGIBIL Page No.# 2/10 P.S.-BIHPURIA MOUZA- BIHPURIA DIST- LAKHIMPUR 6: JAMELA BEGUM D/O LT. ATAR ALI W/O UMED ALI R/O VILL- BANGO P.O.-DONGIBIL P.S.-BIHPURIA DIST-LAKHIMPUR 7: ABDUL MUNNAF @ FALU S/O MD. ISAB ALI R/O VILL- DONGIBIL P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST- LAKHIMPU VERSUS MD. RAJAB ALI AND 30 ORS S/O LT. IZZAT ALI, R/O VILL- 65/68 NO. GRANT, P.O.-DONGIBIL, P.S.- BIHPURIA, MOUZA - LALUK, DIST-LAKHIMPUR 2:YAKUB ALI S/O LT. IZZAT ALI R/O VILL- 65/68 NO. GRANT P.O.-DONGIBIL P.S.-BIHPURIA MOUZA - LALUK DIST-LAKHIMPUR 3:AJAB ALI S/O LT. IZZAT ALI R/O VILL- 65/68 NO. GRANT P.O.-DONGIBIL P.S.-BIHPURIA MOUZA - LALUK DIST-LAKHIMPUR 4:MOKUB ALI S/O LT. IZZAT ALI R/O VILL- 65/68 NO. GRANT P.O.-DONGIBIL P.S.-BIHPURIA MOUZA - LALUK Page No.# 3/10 DIST-LAKHIMPUR 5:KHUDEJA BEGUM D/O IZZAT ALI W/O ABDUL GAFUR R/O VILL- MENEHA P.O. AND P.S.-LALUK MOUZA- BIHPURIA DIST-LAKHIMPUR 6:MALEKA BEGUM D/O LT. JAMILA BEGUM W/O SAIDUR RAHMAN R/O VILL- 65/68 NO. GRANT P.O.-DONGIBIL P.S.-BIHPURIA MOUZA - LALUK DIST-LAKHIMPUR 7:ALEKJAN BEGUM D/O LT. JAMILA BEGUM W/O SOFIQUL ISLAM R/O VILL- KASIKATA P.O. P.S.-BIHPURIA MOUZA- LALUK DIST-LAKHIMPUR 8:NURJAHAN BEGUM D/O LT. JAMILA BEGUM W/O SAHAJ UDDIN R/O VILL- 65/68 NO. GRANT P.O.-DONGIBIL P.S.-BIHPURIA MOUZA - LALUK DIST-LAKHIMPUR 9:SAMARJAN BEGUM D/O LT. JAMILA BEGUM W/O MOIJUL ISLAM R/O VILL- 65/68 NO. GRANT P.O.-DONGIBIL P.S.-BIHPURIA MOUZA - LALUK DIST-LAKHIMPUR 10:SORIFUL ISLAM S/O LT. JAMILA BEGUM Page No.# 4/10 R/O VILL- 65/68 NO. GRANT P.O.-DONGIBIL P.S.-BIHPURIA MOUZA - LALUK DIST-LAKHIMPUR 11:MD. SURAT ALI S/O LATE TOIYAB ALI R/O VILL- DONGIBIL P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPUR 12:EUNUS ALI S/O LATE TOIYAB ALI BIHPURIA R/O VILL-MORMOI GRAZING P.O.-BIHPURIA P.S.-BIHPURIA MOUZA- LALUK DIST-LAKHIMPUR 13:MOJIBUR RAHMAN S/O LT. RAHMAT ALI R/O VILL-MORMOI GRAZING P.O.-BIHPURIA P.S.-BIHPURIA MOUZA- LALUK DIST-LAKHIMPUR 14:ABUL HUSSAIN S/O LT. RAHMAT ALI R/O VILL-MORMOI GRAZING P.O.-BIHPURIA P.S.-BIHPURIA MOUZA- LALUK DIST-LAKHIMPUR 15:MOHABBAT ALI S/O LT. MIYA HUSSAIN R/O VILL- DONGIBIL P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPUR 16:NURJAMAL HAQUE S/O LT. ASMOT ALI Page No.# 5/10 R/O VILL- DONGIBIL P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPUR 17:FOJILA KHATUN D/O LT ASMOT ALI W/O USMAN ALI R/O VILL- DONGIBIL P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPUR 18:HANIF ALI S/O LT. AKBAR ALI R/O VILL- DONGIBIL P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPUR 19:BILLAL HUSSAIN S/O AKBAR ALI R/O VILL- DONGIBIL P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPUR 20:REKIBUL ALI S/O LT. AKBAR ALI R/O VILL- DONGIBIL P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPUR 21:MAMATA BEGUM D/O LT. AKBAR ALI W/O MD. ISMAIL ALI R/O VILL- DONGIBIL P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPUR Page No.# 6/10 22:MOTUJA BEGUM D/O LT. AKBAR ALI W/O MOHAMMAD ALI R/O VILL-BANGO P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPUR 23:BANU BEGUM D/O LT AKBAR ALI W/O HEDAITUL ISLAM R/O VILL- TINTHENGIA P.O.-ISLAMPUR P.S.-BIHPURIA MOUZA- LALUK DIST- LAKHIMPUR 24:MD. BASIRUDDIN AHMED S/O NIYAMAT ALI AND KHATEMON NESA R/O VILL-BANGO P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPUR 25:MD. SORUDDIN S/O NIYAMAT ALI AND KHATEMON NESA R/O VILL-BANGO P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPUR 26:MORIOM NESSA D/O NIYAMAT ALI AND KHATEMON NESA W/O LT. AJIJUR R/O VILL-BANGO P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPUR 27:AMINA KAHTUN D/O NIYAMAT ALI AND KHATEMON NESA W/O ASMOT ALI R/O VILL-BANGO P.O.-DONGIBIL Page No.# 7/10 P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPUR 28:KUMAR NEWAR S/O LT. BAHADUR NEWAR @ PADMA BAHADUR NEWAR R/O VILL- DONGIBIL P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPUR 29:NUR HUSSAIN (GRANDCHILD OF LATE KHATAMUN NESA) S/O LATE SAMSUDDIN R/O VILL-BANGO P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPUR 30:IKRAMUL HUSSAIN (GRANDCHILD OF LATE KHATEMON NESA) S/O LATE SAMSUDDIN R/O VILL-BANGO P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPUR 31:MIRAJUL HUSSAIN (GRANDCHILD OF LATE KHATEMON NESA) S/O LATE SAMSUDDIN R/O VILL-BANGO P.O.-DONGIBIL P.S.-BIHPURIA MOUZA- BIHPURIA DIST-LAKHIMPU Advocate for the Petitioner : MR SISHIR DUTTA, MS K BORAH,MR. SIDHANT DUTTA,MS S MOCHAHARI Advocate for the Respondent : Page No.# 8/10 BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 03.01.2025 Heard Mr. S. Dutta, learned counsel for the petitioners. 2. In this petition, under Article 227 of the Constitution of India, the petitioners have put to challenge the correctness or otherwise of the Order dated 19.09.2024, passed by the learned Civil Judge (Senior Division), Lakhimpur, North Lakhimpur, in Petition No. 1157/2024, arising out of Title Suit No. 11/2020. 3. It is to be noted here that vide order dated 19.09.2024, the learned Civil Judge (Senior Division), Lakhimpur, North Lakhimpur has dismissed the Petition No. 1157/2024, filed by the petitioners for allowing them to file their counter claim in the Title Suit No. 11/2020. 4. Mr. Dutta, learned counsel for the petitioners submits that the learned trial court has committed manifest illegality in dismissing the petition, as it has failed to take note of the cross-examination of P.W.1, which is enclosed, as Annexure – 6, at page No. 60 of the petition, wherein, he had admitted that their names have been mutated in the Patta No. 3, in the year 2021 and while mutating their names in the suit land, before the Circle Officer, they have not informed the Circle Officer about the pendency of the Title Suit No. 11/2020 and from that day, the cause of action arises for filing the counter claim. 4.1. However, to a pointed query of this court, Mr. Dutta submits that the period of limitation for filing counter claim is 3 years and under exceptional circumstances, the same can be allowed beyond the period. 4.2. In support of his submission, Mr. Dutta has referred one decision of Hon’ble Supreme Court in the case of Mahesh Govindji Trivedi vs. Bakul Maganlal Vyas and Others, reported in (2023) 11 SCC 516. Page No.# 9/10 5. Having heard the submission of learned counsel for the petitioners, I have carefully gone through the petition as well as the documents placed on record and also perused the impugned Order dated 19.09.2024, passed by the learned Civil Judge (Senior Division), Lakhimpur, North Lakhimpur, in Petition No. 1157/2024, arising out of Title Suit No. 11/2020 and also perused the decision referred by Mr. Dutta, learned counsel for the petitioners. 6. It appears that the learned trial court, in the impugned order dated 19.09.2024, had clearly mentioned that in paragraph No. 20 of the plaint, the plaintiffs has mentioned about the mutation of their names in the suit land and to the said contention, the defendants replied in paragraph No. 11 of the written statement. On such count, it is evident that the defendants had full knowledge about the application of mutation, being filed by the plaintiffs, in connection with the suit land. The learned trial court had further considered that it cannot be said that the plaintiffs had mutated their names in connection with the suit land by concealing the said fact from the defendants and during the pendency of the suit land. The learned trial court has also considered the fact that the suit is at the stage where the cross-examination of all the non-official prosecution witnesses have already been recorded and the defendants had ample opportunity to file their counter claim at an earlier stage. Thereafter, considering all the above mentioned facts, the learned trial court has dismissed the petition. 7. It is to be noted here that in the case of Ashok Kumar Kalra vs. Wing CDR. Surendra Agnihotri, reported in (2020) 2 SCC 394, it is well settled that the defendant cannot be permitted to file counter claim after the issues are framed and after the suit has proceeded substantially. It would defeat the cause of justice and be detrimental to the principle of speedy justice as enshrined in the objects and reasons for the particular amendment to C.P.C. 8. In the case in hand, as noted by the learned trial court, the issues have been Page No.# 10/10 settled long back and all the non-official witnesses have already been examined and the petitioners, despite having ample opportunities, failed to file counter claim at an earlier stage. This being the position, this court is of the view that the present petitioners cannot be permitted to file counter claim at this stage in the Title Suit No. 11/2020. 9. Though, Mr. Dutta, learned counsel for the petitioners has referred to a decision of Hon’ble Supreme Court in the case of Mahesh Govindji Trivedi (Supra), this court is of the view that the decision of Ashok Kumar Kalra (Supra) is a decision of three Judge Bench decision which cannot be overruled by a decision of two Judge Bench. Moreover, no exceptional circumstances could be demonstrated before this court, which prevent the petitioners in filing counter claim at an earlier stage. That being so, the decision of Mahesh Govindji Trivedi (Supra), would not advance the argument of Mr. Dutta. Over and above, in Mahesh Govindji Trivedi (Supra), the Hon’ble Judges have agreed to the fundamental principles laid down in the case of Ashok Kumar Kalra (Supra). 10. In the result, I find no merit in this petition. Accordingly, the same stands dismissed, at this motion stage itself. JUDGE Comparing Assistant