Page No.# 1/9 GAHC010059782025 2026:GAU-AS:1193 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Civil)/1101/2025 MD KUTUB UDDIN BARBHUIYA AND 11 ORS. S/O- LATE NIMAR ALI BARBHUIYA, VILL BOALIPAR PART II, PORGANA, P.S AND DIST- HAILAKANDI, ASSAM, PIN- 788152 2: ANDUL SAHID BARBHUIYA S/O LATE ABDUL SATTAR BARBHUIYA VILL BOALIPAR PART II PORGANA P.S AND DIST- HAILAKANDI ASSAM PIN- 788152 3: MANIK UDDIN BARBHUIYA S/O LATE ABDUL SATTAR BARBHUIYA VILL BOALIPAR PART II PORGANA P.S AND DIST- HAILAKANDI ASSAM PIN- 788152 4: ANDUL JALIL BARBHUIYA S/O LT AKADDAS ALI BARBHUIYA VILL BOALIPAR PART II PORGANA P.S AND DIST- HAILAKANDI ASSAM PIN- 788152 5: FIROZ AHMED BARBHUIYA S/O LAATE NISAR ALI BARBHUIYA VILL BOALIPAR PART II PORGANA P.S AND DIST- HAILAKANDI ASSAM Page No.# 2/9 PIN- 788152 6: ANSARUL HOQUE BARBHUIYA S/O LATE ABDUL HAMID BARBHUIYA VILL BOALIPAR PART II PORGANA P.S AND DIST- HAILAKANDI ASSAM PIN- 788152 7: ROFIQUE AHMED LASKAR S/O SUNAHOR ALI LASKAR VILL BOALIPAR PART III PORGANA P.S AND DIST- HAILAKANDI ASSAM PIN- 788152 8: MAYNUL HOQUE LASKAR S/O ABDUL KARIM LASKAR VILL BOALIPAR PART III PORGANA P.S AND DIST- HAILAKANDI ASSAM PIN- 788152 9: FAKRUJ JAMAN BARBHUIYA S/O ABDUL LATIF BARBHUIYA VILL BOALIPAR PART III PORGANA P.S AND DIST- HAILAKANDI ASSAM PIN- 788152 10: RAJU BARBHUIYA S/O ABDUL MOTLIB BARBHUIYA VILL BOALIPAR PART III PORGANA P.S AND DIST- HAILAKANDI ASSAM PIN- 788152 11: NUR UDDIN BARBHUIYA S/O LATE NIMAR ALI VILL BOALIPAR PART III PORGANA P.S AND DIST- HAILAKANDI ASSAM Page No.# 3/9 PIN- 788152 12: HILAL UDDIN BARBHUIYA S/O MD. MASARAF ALI BARBHUIYA VILL BOALIPAR PART II PORGANA P.S AND DIST- HAILAKANDI ASSAM PIN- 78815 VERSUS ON THE DEATH OF AFTAB UDDIN BARBHUIYA, HIS LEGAL HEIRS NAMELY 2:NUR KHATUN CHOUDHURY W/O LATE AFTAB UDDIN BARBHUIYA R/O VILL BOALIPAR PART II P.S AND DIST- HAILAKANDI ASSAM PIN- 788152 3:SALEH AHMED BARBHUIYA S/O LATE AFTAB UDDIN BARBHUIYA R/O VILL BOALIPAR PART II P.S AND DIST- HAILAKANDI ASSAM PIN- 788152 4:HUSSAIN AHMED BARBHUIYA S/O LATE AFTAB UDDIN BARBHUIYA R/O VILL BOALIPAR PART II P.S AND DIST- HAILAKANDI ASSAM PIN- 788152 5:HUSNA BEGOM BARBHUIYA D/O LATE AFTAB UDDIN BARBHUIYA R/O VILL BOALIPAR PART II P.S AND DIST- HAILAKANDI ASSAM PIN- 78815 Advocate for the Petitioner : MR. N DHAR, MR. R A MAZUMDER,MR. R A CHOUDHURY,MR. T U LASKAR Advocate for the Respondent : MR. J LASKAR (R-1.a TO 1.d), Page No.# 4/9 In Case : RSA/73/2016 MD KUTUB UDDIN BARBHUIYA and 14 ORS S/O LT. NIMAR ALI BARBHUIYA VILL. BOALIPAR PART-II 2: ABDUL SAHID BARBHUIYA S/O LATE ABDUL SATTAR BARBHUIYA VILL. BOALIPAR PART-II 3: MANIK UDDIN BARBHUIYA S/O LATE ABDUL SATTAR BARBHUIYA VILL. BOALIPAR PART-II 4: ABDUL JALIL BARBHUIYA S/O LT. AKADDAS ALI BARBHUIYA VILL. BOALIPAR PART-II 5: ABDUL MOTLIB BARBHUIYA S/O LT. ATAR ALI BARBHUIYA VILL. BOALIPAR PART-II 6: ABDUL LATIF BARBHUIYA S/O LATE ATAR ALI BARBHUIYA VILL. BOALIPAR PART-II 7: FIROZ AHMED BARBHUIYA S/O LATE NISAR ALI BARBHUIYA VILL. BOALIPAR PART-II 8: BAHAR UDDIN BARBHUIYA S/O LATE NISAR ALI BARBHUIYA VILL. BOALIPAR PART-II 9: ANSWARUL HOQUE BARBHUIYA S/O LATE ABDUL HAMID BARBHUIYA VILL. BOALIPAR PART-II 10: ROFIQUE AHMED LASKAR S/O SUNAHOR ALI LASKAR VILL. BOALIPAR PART-III Page No.# 5/9 11: MAYNUL HOQUE LASKAR S/O ABDUL KARIM LASKAR VILL. BOALIPAR PART-III 12: FAKUJ JAMAN BARBHUIYA S/O ABDUL LATIF BARBHUIYA VILL. BOALIPAR PART-III. 13: RAJU BARBHUIYA S/O ABDUL MOTLIB BARBHUIYA VILL. BOALIPAR PART-III 14: NUR UDDIN BARBHUIYA S/O LATE NIMAR ALI VILL. BOALIPAR PART-III 15: HILAL UDDIN BARBHUIYA S/O MD. MASARAF ALI BARBHUIYA VILL. BOALIPAR PART-II ALL ARE PORGANA P.S. and DIST. HAILAKANDI ASSAM PIN 788155 VERSUS AFTAB UDDIN BARBHUIYA S/O LATE AYUB ALI BARBHUIYA VILL. BOALIPAR PART-II PH. P.S. and DIST. HAILAKANDI ASSAM PIN 788155 ------------ Advocate for : MR.S R BARBHUIYA Advocate for : MR.J LASKAR appearing for AFTAB UDDIN BARBHUIYA BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 30.01.2026 [1] Heard Mr. T.U. Laskar, the learned counsel for the Page No.# 6/9 applicants/appellants. Also heard Mr. J. Laskar, the learned counsel for the respondent. [2] This application under Section 5 of the Limitation Act, 1963 has been preferred by the applicants/appellants praying for condonation of delay of 533 days in filing the application for setting aside abatement of the connected RSA No. 73/2016 due to the death of the respondent No. 1, Late Aftab Uddin Barbhuiya on 11.03.2013 during the pendency of the appeal. [3] The learned counsel for the applicants/appellants has submitted that after death of the respondent No. 1 on 11.03.2013, the applicants/appellants came to know about the same in the last week of March and accordingly, they collected the details about the legal heirs of the deceased respondent No. 1 and provided the said details to the engaged counsel, Dr. B. Ahmed. [4] It is submitted by the learned counsel for the applicants that the engaged counsel for the applicants that Dr. B. Ahmed was suffering from ailments for which he had to be admitted in a hospital in Bangalore and due to his prolonged illness, he could not take steps for filing of the application for setting aside the abatement and other connected applications. [5] He submits that the applicants are the residents in a remote village in the district of Hailakandi and therefore, it was difficult on his part to keep constant touch with his engaged counsel and as a Page No.# 7/9 result of which, the delay of 533 days has occurred in filing the application for setting aside abatement and substitution petition. [6] The learned counsel for the applicants submits that the applicants were prevented from approaching this court in filing the connected interlocutory application within prescribed period of time as same were beyond his control and there was no wilful negligence on his part. Hence, he has prayed for condoning the delay of 533 days. [7] On the other hand, Mr. J. Ahmed, the learned counsel for the respondents has submitted that the applicants were negligent in pursuing their cause as it appears from their petition itself that they came to know about the death of the respondent No. 1 in the month of March, 2023 itself, however, the applications for substituting the legal heirs as well as for setting aside the abatement were filed on 22.11.2025 after a huge delay of 533 days. He submits that the reasons shown by the applicants in their application may not be regarded as sufficient cause which prevented them from approaching the court within the prescribed period of limitation in as much as apart from Dr. B. Ahmed, there were other lawyers, who were engaged by the applicants in the connected appeal. He submits that the applicants were negligent in not approaching the other lawyers. He further submits that the applicants were negligent and have not acted diligently and remained inactive for a long period of 533 days and therefore, the delay could not be condoned. Page No.# 8/9 [8] In support of his submissions he has cited a ruling of the Apex Court in the case of “Basawaraj and Ors. Vs. The Spl. Land Acquisition Officer (Civil Appeal No. 6974/2013).” [9] I have considered the submissions made by the learned counsel for both sides and have also gone through the materials on record. [10] Though while dealing with an application under Section 5 of the Limitation Act, 1963, the court has to take the justice oriented approach and have to be liberal in those cases where the applicant is able to show sufficient cause which prevented him/them from approaching the court within the prescribed period of limitation. However, in a case where it is apparent that the applicants are negligent or there is a want of bonafide on his part, the delay may not be condoned. [11] In the instant case, the applicants are residents of Hailakandi and it appears from their application which is supported by an affidavit that they have given the details of the legal heirs of the deceased respondent No. 1 to their engaged counsel in the month of March, 2023 itself, i.e. within the prescribed period of limitation, however, the cause shown by them, i.e., their engaged counsel was suffering from various ailments is beyond their control. [12] In the instant case, it also appears that the suit land is presently in possession of the respondent as the first appellate court Page No.# 9/9 has confirmed his possession and therefore, the applicants could not have benefited by protracting the litigation and therefore, no malafide can be attributed to them. [13] After considering the reasons shown in paragraph Nos. 3 and 4 of the application for condonation of delay to be sufficient reasons which prevented the present applicants in approaching this court within the prescribed period of limitation for filing the application for setting aside abatement and other connected application for substitution of the legal heirs. [14] This court hereby condones the delay of 533 days in filing the connected interlocutory applications. [15] This interlocutory application is accordingly allowed and the delay of 533 days is hereby condoned. JUDGE Comparing Assistant