Page No.# 1/15 GAHC010218032025 2026:GAU-AS:10287 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP/136/2025 MD. SHERMAN ALI AHMED AND 4 ORS S/O LATE ROUSHAN ALI AHMED, R/O HOUSE NO. 421, WARD NO. 54, P.S.- NOONMATI, SATGAON, GUWAHATI-37, DIST- KAMRUP (M), ASSAM 2: MRS. MEHERUN NESSA W/O HAAJI MOULANA ABBAS ALI R/O VILL- KHANDAKARPARA MOUZA- GHILAZARI DIST- BARPETA ASSAM PIN-781316 3: MRS. MARJINA AHMED W/O MAJNUT ALI AHMED R/O VILL- ITARBHITHA MOUZA- GHILAZARI DIST- BARPETA ASSAM-781329 4: MRS. SHAHNAZ AHMED W/O JULFIKAR ALI R/O VILL- MOURIGAAON MOUZA- MANDIA DIST- BARPETA ASSAM-781309 5: MISS MACHOOMA AHMED S/O LATE MOHSIN ALI AHMED R/O VILL- MANDIA MOUZA- MANDIA DIST- BARPETA ASSAM-78130 VERSUS Page No.# 2/15 ZADID SAROWAR ALAM AND 17 ORS S/O NUR MAHAMMAD, R/O VILL- DANGARKUCHI, MOUZA- GHILAZARI, PIN-781314, DIST- BARPETA, ASSAM 2:ZADID IQBAL ALAM S/O NUR MAHAMMAD R/O VILL- DANGARKUCHI MOUZA- GHILAZARI PIN-781314 DIST- BARPETA ASSAM 3:ZADID SHAHIDUL ALAM S/O NUR MAHAMMAD R/O VILL- DANGARKUCHI MOUZA- GHILAZARI PIN-781314 DIST- BARPETA ASSAM 4:HEIRS OF LATE JADAB CHANDRA DAS A) AKHIL CH. DAS B) NIKHIL CH. DAS C) SUNIL KUMAR DAAS D) KHAGEN CH. DAS E) PRASENJIT DAS F) PRADIP KUMAR DAS ALL ARE S/O LATE JADAV CHANDRA DAS R/O VILL- HOWLY TOWN MOUZA- GHILAZARI DIST- BARPETA ASSAM-781316 5:HEIRS OF LATE AMULYA KANTA DEV ADHIKARI A) KARUNAKANTA ADHIKARI (SON) B) BHUPENDRA NARAYAN ADHIKARI (SON) C) PRANKANTA ADHIKARI (SON) D) SHUBHAKANTA ADHIKARI (SON) R/O VILL- DANGARKUCHI MOUZA- GHILAZARI DIST- BARPETA ASSAM-781314 6:HEIRS OF PRAHLAD CH. DAS A) NATARAJ DAS (SON) B) PUNYALAL DAS (SON) C) MUKHYARAJ DAS (SON) Page No.# 3/15 D) DAKHYARAJ DAS (SON) ALL ARE R/O VILL- DANGARKUCHI MOUZA- GHILAZARI DIST- BARPETA ASSAM-781314 7:KHAGENDRA NATH DAS S/O LATE MUKUNDARAM DAS R/O VILL- GANAKKUCHI GAON MOUZA- GHILAZARI DIST- BARPETA ASSAM-781314 8:ABDUL MAJID S/O LATE ABU TALEB R/O VILL- DANGARKUCHI MOUZA- GHILAZARI DIST- BARPETA ASSAM-781314 9:ABDUL MALEK S/O LATE ABU TALEB R/O VILL- DANGARKUCHI MOUZA- GHILAZARI DIST- BARPETA ASSAM-781314 10:ABDUL MAHMUD S/O LATE ABU TALEB R/O VILL- DANGARKUCHI MOUZA- GHILAZARI DIST- BARPETA ASSAM-781314 11:MARIAM BEGUM W/O LATE MATIAR RAHMAN R/O VILL- DANGARKUCHI MOUZA- GHILAZARI DIST- BARPETA ASSAM-781314 12:MEHBOOBA RAHMAN W/O LATE IDDRIS ALI R/O VILL- DANGARKUCHI MOUZA- GHILAZARI DIST- BARPETA ASSAM-781314 Page No.# 4/15 13:NUR MAHAMMAD S/O LATE NAJESH ALI R/O VILL- DANGARKUCHI MOUZA- GHILAZARI DIST- BARPETA ASSAM-781314 14:HEIRS OF LATE RUNUWARA BEGUM A) NAUSHAD ALI (HUSBAND) B) JENIFA BEGUM (DAUGHTER) C) ARSHAD ALI (SON) D) IRSHAD ALI (SON) A MINOR REPRESENTED BY HIS FATHER NAAUSHAD ALI R/O VILL- DANGARKUCHI MOUZA- GHILAZARI DIST- BARPETA ASSAM-781314 15:RATNA KANTA DAS S/O LATE GHANA KANTA DAS R/O VILL- RANGPURHATI MOUZA AND DIST- BARPETA ASSAM-781318 16:SMTI. SABITRIBALA DAS W/O RATNA KANTA DAS R/O VILL- RANGPURHATI MOUZA AND DIST- BARPETA ASSAM-781318 17:HEIRS OF LATE MATIAR RAHMAN A) MOMINUR RAHMAN (SON) B) MUSTAFIZUR RAHMAN (SON) R/O VILL- DANGARKUCHI MOUZA- GHILAZARI DIST- BARPETA ASSAM-781314 18:MUSTT. JURUTAN NESSA W/O LATE ASHAD ALI R/O VILL- DANGARKUCHI MOUZA- GHILAZARI DIST- BARPETA ASSAM-78131 Advocate for the Petitioner : MR. A SATTAR, S CHOUDHURY Advocate for the Respondent : MR. N ALAM(R-1,2,3), MR K JAIN(R-1,2,3) Page No.# 5/15 BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 23.07.2026 Heard Mr. A. Sattar, learned counsel for the petitioners. Also heard Mr. N. Alam, learned counsel for the respondent Nos. 1, 2 and 3. 2. In this petition, under Article 227 of the Constitution of India, the petitioners have challenged the order dated 30.07.2025, passed by the learned Civil Judge (Senior Division), Barpeta, in Misc. (J) Case No. 49/2025, arising out of Misc. (J) Case No. 159/2024, of Title Appeal No. 72/2024. 3. Notably, vide impugned order dated 30.07.2025, the learned Civil Judge (Senior Division), Barpeta (‘Appellate Court’, for short) had rejected the application filed by the petitioners, under Order 1 Rule 10(2), read with Section 151 CPC, to strike off the names of the proforma respondent Nos. 10, 12 and 13, and to add one Kaustov Jyoti Das as proforma respondent in place of proforma respondent Nos. 10, 12 and 13, and that the legal heirs of proforma respondent No. 10 are already on record. 4. Mr. Sattar, learned counsel for the petitioners submits that the respondent Nos. 1, 2 and 3 herein as plaintiffs, had instituted a title suit, being Title Suit No. 95/2012, before the Court of learned Civil Judge (Junior Division) No. 1, Barpeta (‘Trial Court’, for short), and that the petitioners herein, as defendants, entered appearance and contested the suit. Thereafter, hearing the learned counsel for both the parties, and also considering the evidence on record, the learned Trial Court, vide judgment dated 25.04.2024 and decree dated 04.05.2024, had decreed the suit. Mr. Sattar also submits that being aggrieved, the petitioners herein had preferred an appeal, being Title Appeal No. 72/2024, along with an Page No.# 6/15 application under Section 5 of the Limitation Act, 1963, for condoning the delay of 170 days before the learned Appellate Court, and upon the said delay condonation application, Misc. (J) Case No. 159/2024, was registered and the said application is yet to be disposed of, and that the appeal is yet to be admitted for disposal of delay condonation application. Mr. Sattar further submits that the respondent Nos. 1, 2 and 3 herein as plaintiffs, while filing Title Suit No. 95/2012, had included the co-pattadars as proforma defendants as they had filed the suit for partition, and as such, the petitioners while preferring the appeal, had also included them as parties in Title Appeal No. 72/2024 as well as in Misc. (J) Case No. 159/2024, even though they did not contest the suit and the suit proceeded ex-parte against them. Mr. Sattar also submits that the petitioners herein took steps and notice upon the proforma respondent No. 10 returned unserved and on enquiry, the petitioners came to know that the proforma respondent No. 10, namely, Nur Mohammad had died before filing of the appeal, leaving behind the opposite parties/respondents as his legal heirs and successors, and that from the report of the process server, the petitioners came to know that the proforma respondent Nos. 12 and 13, i.e. the original sellers also suffered demise before filing of the appal, leaving behind one Kaustov Jyoti Das as their only legal heir, and as such, the petitioners had filed one petition, bearing No. 421/2025, dated 21.02.2025, under Order 1 Rule 10(2), read with Section 151 CPC, to strike off the names of proforma respondent Nos. 10, 12 and 13 and to add Kaustov Jyoti Das as proforma respondent in place of proforma respondent Nos. 10, 12 and 13, in Misc. (J) Case No. 159/2024, and the said petition was registered as Misc. (J) Case No. 49/2025. Mr. Sattar further submits that the opposite parties had raised no objection against the Misc. (J) Case No. 49/2025, yet the learned Appellate Page No.# 7/15 Court, by quoting a phrase from a decision of Hon’ble Supreme Court, had rejected the petition and accordingly, Misc. (J) Case No. 49/2025 was disposed of on contest, vide impugned order dated 30.07.2025. Being aggrieved, the petitioners have approached this Court by filing the present petition, challenging the impugned order dated 30.07.2025. 4.1. According to Mr. Sattar, learned counsel for the petitioners, the impugned order suffers from illegally and material irregularity and therefore, he has contended to interfere with the same and to remand the matter to the learned Appellate Court. 5. Per contra, Mr. Alam, learned counsel for the respondent Nos. 1, 2 and 3 has opposed the petition and supported the impugned order dated 30.07.2025. According to him, the impugned order suffers from no infirmity or irregularity requiring any interference of this Court. And as such, he has contended to dismiss the petition. 6. Having heard the submissions of learned counsel for both the parties, this Court has carefully gone through the petition and the documents placed on record and also perused the impugned order dated 30.07.2025. 7. The basic facts, herein this case, are not in dispute. The petitioners herein had preferred one title appeal, challenging the judgment and decree, passed by the learned Trial Court, and in filing the title appeal, there was a delay of 170 days, for which they had filed an application for condonation of delay, under Section 5 of the Limitation Act, upon which Misc. (J) Case No. 159/2024, was registered. While notice was issued to the opposite parties in the said application, it had come to light that the proforma respondent Nos. 10, 12 and 13 suffered demise as per report of the process server. Thereafter, the Page No.# 8/15 petitioners had preferred one application, under Order 1 Rule 10(2), read with Section 151 CPC, for striking off the names of deceased proforma respondent Nos. 10, 12 and 13, and also for addition of legal heirs of proforma respondent Nos. 12 and 13, in Misc. (J) Case No. 159/2024. 7.1. However, the learned Appellate Court had dismissed the said application on the ground that the appeal was filed against dead persons i.e. proforma respondent Nos. 10, 12 and 13, and that the application for addition of legal heirs for substitution could not be allowed. And in arriving at such a finding, it had relied upon a decision of Hon’ble Supreme Court in the case of Gurcharan Singh Vs. Surjit Singh and Anr., reported in (2012) 13 SCC 530, Hon’ble Supreme Court has held that: "Thus the aforesaid authorities are clear that where a party has been impleaded as respondent in an appeal but such respondent was dead before filing of the appeal, the remedy of the appellant is not to file an application for substitution of legal representatives of such respondent, but to file an application for an amendment of the appeal memorandum and in a case where such application is filed beyond the limitation prescribed for filing the appeal, the appellant must also file an application under section 5 of the Limitation Act for condonation of delay in filing the application for amendment and if the court is satisfied with the explanation given by the appellant for the delay, the court can condone the delay and allow the amendment of the appeal memorandum.” 7.2. Thus, though not in express word, the learned Court below had stated about the petition for substitution not being accompanied by a petition for condonation of delay, since the pro-forma respondent No.10, 12 and 13 died Page No.# 9/15 long back, weighed it in rejection of the application, yet from a close perusal of the impugned order and the decision relied upon by it, goes to show that the same is also a ground for rejection of the application. 8. However, it appears that in the instant case, the appeal is yet to be admitted as there was delay and the application for condonation of delay had been filed, upon which Misc. (J) Case No. 159/2024, was registered, and when notice was issued to the proforma respondent Nos. 10, 12 and 13 returned unserved, only then the petitioners came to know that they had suffered demise. The process server had also submitted a report on 27.12.2024, and the application in the Misc(J) Case No. 159/2024, under Order 1 Rule 10(2), read with Section 151 CPC, was filed on 21.02.2025, upon which Misc(J) Case No. 49/2025 was registerd. 9. It is the contention of Mr. Sattar, learned counsel for the petitioners that even if there is delay in filing the application, the same came to the knowledge of the petitioners from report of the Process Server, dated 27.12.2024, and that the limitation for filing an application under Order 1 Rule 10(2), read with Section 151 CPC, was 150 days from the date of death and since herein this case the exact date of death is not known, the limitation has to be counted from the date of knowledge i.e. from the report of the Process Server, who had furnished the report on 27.12.2024. He also pointed it out that the petitioners herein had filed the application on 21.02.2025. And as such, an application has to be filed after 150 days (90 + 60). 10. It is also to be noted here that while dealing with the issue of limitation in filing an application for substitution, Hon’ble Supreme Court in the case of Om Prakash Gupta Alias Lalloowa (Now Deceased) Through Lrs. & Ors. vs. Satish Chandra (Now Deceased) Through Lrs., reported in Page No.# 10/15 (2025) 2 SCR 937, especially in paragraph No. 11; held that the total time frame for filing an application for substitution and for setting aside abatement, as outlined in Articles 120 and 121 of the Limitation Act, is 150 (90+60) days and the question of condonation of delay through an application under Section 5 of the Limitation Act arises only after this period and not on the 91st day, when the suit/appeal abates. 11. In the instant case, the application was filed after 56 days, and as such, by no stretch of imagination, it can be said that the appeal against the proforma respondent Nos. 10, 12 and 13 stands abated. Relevant Decision of Supreme Court presently occupying the field:- 12. There are three decisions of Supreme Court which together form the core jurisprudence on the issue. These are:- (i) Ram Prasad Dagaduram vs. Vijaykumar Motilal Hirakhanwala and Ors., reported in AIR 1967 SC 278. This is an older decision prior to enactment of Limitation Act, 1963. In this decision, Hon’ble Supreme Court has recognised that legal representatives can be added under Order I Rule 10 CPC. But, under the then-applicable law (Section 22 of the Limitation Act, 1908), the suit against the newly added parties was held to be instituted only on the date of impleadment, and on facts it was barred by limitation. (ii) Karuppaswamy and Others v. C. Ramamurthy, reported in (1993) 4 SCC 41. In this case the suit was filed against a person who had already died (unknown to the plaintiff). And when the fact of death came to light, Page No.# 11/15 the plaintiff applied to bring the LRs on record (initially under Order XXII Rule 4, later sought to be treated under inherent powers / Sections 151 & 153 CPC). Hon’ble Supreme Court has held that the omission was a mistake made in good faith. Therefore, under the proviso to Section 21(1) of the Limitation Act, the Court could direct that the suit shall be deemed to have been instituted against the LRs on the original date of filing of the plaint (i.e., the impleadment relates back). The Court permitted the conversion of the application and allowed the LRs to be brought on record with the benefit of relation back. This is the leading earlier decision on the “good faith” aspect under the proviso to Section 21(1) of the Limitation Act. (iii) Pankajbhai Rameshbhai Zalavadiya v. Jethabhai Kalabhai Zalavadiya, reported in (2017) 9 SCC 700, Hon’ble Supreme Court held as under while dealing with the issue: - “10. Order 1 Rule 10 of the Code enables the court to add any person as a party at any stage of the proceedings, if the person whose presence in court is necessary in order to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Order 1 Rule 10 of the Code empowers the court to substitute a party in the suit who is a wrong person with a right person. If the court is satisfied that the suit has been instituted through a bona fide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done. When the court finds that in the absence of the persons sought to be impleaded as a party Page No.# 12/15 to the suit, the controversy raised in the suit cannot be effectively and completely settled, the court would do justice by impleading such persons. Order 1 Rule 10(2) of the Code gives wide discretion to the court to deal with such a situation which may result in prejudicing the interests of the affected party if not impleaded in the suit, and where the impleadment of the said party is necessary and vital for the decision of the suit. …………………. ……………………………….. 19. As mentioned supra, it is only if a defendant dies during the pendency of the suit that the provisions of Order 22 Rule 4 of the Code can be invoked. Since one of the defendants i.e. Defendant 7 has expired prior to the filing of the suit, there is no legal impediment in impleading the legal representatives of the deceased Defendant 7 under Order 1 Rule 10 of the Code, for the simple reason that the plaintiff in any case could have instituted a fresh suit against these legal representatives on the date he moved an application for making them parties, subject of course to the law of limitation. Normally, if the plaintiff had known about the death of one of the defendants at the time of institution of the suit, he would have filed a suit in the first instance against his heirs or legal representatives. The difficulty that the High Court experienced in granting the application filed by the plaintiff under Order 1 Rule 10 of the Code discloses, with great respect, a hypertechnical approach which may result in the miscarriage of justice. As the heirs of the deceased Defendant 7 were the persons with vital interest in the outcome of the suit, such applications have to be approached keeping in mind that the courts are meant to do substantial justice between the parties and that technical rules or procedures should not be given Page No.# 13/15 precedence over doing substantial justice. Undoubtedly, justice according to the law does not merely mean technical justice but means that law is to be administered to advance justice.” 12.1. So, from the aforesaid decision it becomes clear that the legal heirs of a deceased person can be added in the array of parties under Order 1 Rule 10 of the Code read with Section 151 of the Code, subject to the plea of limitation as contemplated under Order 7 Rule 6 of the CPC and Section 21 of the Limitation Act, to be decided during the course of trial. It is a settled proposition of law that if a suit is filed against a dead person, the legal representatives of the defendants can be impleaded under Order 1 Rule 10 CPC, provided he did not have knowledge of the same. So based on the above decision, “knowledge” of the death becomes the most important component for the purpose of resorting to the provisions of order 1 rule 10. 12.2. In the instant case, the pro-forma respondent Nos. 10, 12 and 13 died before the filing of the delay-condonation application and therefore, the appeal could not be treated as properly instituted against them. The application under Order 1 Rule 10(2) r/w Section 151 CPC for bringing the legal representatives of one deceased respondent on record and for deleting the names of the others is, therefore, maintainable. The learned appellate court herein should have allowed the application under Order 1 Rule 10(2) CPC and brought the legal representatives on record or deleted the name of the deceased respondents, as the case may be, subject, of course, to the question of limitation under Section 21 of the Limitation Act being decided at the appropriate stage and then proceeded to decide the delay-condonation application on merits after notice to the newly added legal representatives. And dismissal of the application on the ground that the appeal was filed against the dead person and that substitution Page No.# 14/15 was not accompanied by a petition for condonation of delay, appears to be hyper-technical ground, which is contrary to the law laid down by the Supreme Court in Pankajbhai Zalavadia(supra) and is therefore not justified and clearly not sustainable in law. 12.3. Notably, under Section 21 of the Limitation Act, 1963, proceedings against a newly added defendant are ordinarily deemed to have been instituted only on the date he is made a party or when summons is served. The proviso, however, permits the Court to direct that the suit shall be deemed to have been instituted on an earlier date if the omission to include the party was due to a mistake made in good faith. 12.4. Ignorance of the death, when the exact date was not known, is treated as a relevant factor for “good faith.” The application, as such may be allowed subject to the limitation plea being decided at trial, more often under Order VII Rule 6 CPC. The practical starting point for computing whether the claim against the legal representative is within time, is therefore, the date of knowledge of the death, after which the plaintiff is expected to act diligently. 12.5. In short, when the date of death itself is not known, limitation for the purpose of the Order I Rule 10(2) application and the consequential claim against the legal representative is counted from the date the applicant acquired knowledge of the death with the Court retaining power, under the proviso to Section 21, to relate the impleadment back to the original filing date, on proof of good-faith ignorance. This approach prioritizes substantial justice over pure technicality, while still protecting the legal representative’s limitation rights. 13. Thus, when the exact date of death was not known, the practical starting point for examining limitation (and good faith) is the date of knowledge of the Page No.# 15/15 death, after which the plaintiff is expected to act with reasonable diligence. The limitation plea itself remains open for decision at trial. 14. As discussed in paragraph No.10 above, in the instant case, the application was filed on 21.02.2025, which was within 56 days from the date of knowledge, i.e. from the report of the Process Server, who had furnished the report on 27.12.2024. 15. It is worth-mentioning in this context that the respondents herein, had not opposed the petition before the learned Trial Court. Even then, the learned Trial Court had not considered the prayer in the petition. 16. In that view of the matter, the impugned order dated 30.07.2025, fails to withstand the legal scrutiny, and accordingly, the same stands set aside and quashed. 17. The matter stands remanded to the learned Appellate Court to consider the application afresh after giving opportunity of being heard to both the parties and thereafter it shall proceed to hear the application for condonation of delay in the appeal, i.e. Misc(J) Case No. 159 of 2024 and in the event of condonation of delay, to admit the appeal, and thereafter, to proceed with the same in accordance with law. 18. The parties shall appear before the learned Appellate Court on or before 14.08.2026. 19. In terms of above, this revision petition stands disposed of. JUDGE Comparing Assistant