Gauhati High Court
Sri Kamlesh Singh vs Sri Bappa Kangshabanik on 20 December, 2021
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GAHC010197672017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : FAO/36/2017
SRI KAMLESH SINGH
S/O SRI RAM NARAYAN SINGH, VILL. RUTTONPORE TEA ESTATE, P.S.
SILCHAR, DIST. CACHAR, ASSAM, PIN 788001
VERSUS
SRI BAPPA KANGSHABANIK
S/O SHRI KRISHNA NARAYAN KANGSHABANIK, VILL. TARAPUR
KALIBARI ROAD SILCHAR-3, P.S. SILCHAR, DIST. CACHAR, ASSAM,PIN
788001
Advocate for the Petitioner : MR.B SAHARIA
Advocate for the Respondent : MR K L GUPTA
BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
Date : 20-12-2021
Heard Mr. A.M. Barbhuyan, learned counsel for the appellant and Mr. K.
Gupta, learned counsel for the respondent.
This is an application under Order XLIII Rule 1(c) of the Code of Civil
Procedure, whereby the appellant has challenged the order dated 29.04.2017
passed by the learned Civil Judge No. 2, Cachar, Silchar in Misc. Case No.
12/2017 arising out of Title Suit No. 47/2016.
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The T.S. No. 47/2016 was posted on 20.12.2016 for hearing the parties
under Section 89 of the Code of Civil Procedure/for framing of issue, on which
date, the learned counsel for the plaintiff did not appear. Therefore, the suit was
dismissed.
Thereafter an application under Order 9 Rule 9 was filed for restoration of
the suit. The said application was filed after a delay of 14 days and to that
effect, another petition was filed for condonation of delay. The learned court
below after hearing both the sides, rejected the prayer for condonation of delay,
Mr. Barbhuyan has submitted that on 20.12.2016, the suit was not posted
for hearing, rather it was posted for hearing the parties under Section 89 of the
Code of Civil Procedure as well as for framing of issue and therefore, the period
of limitation in that case is three years. Mr, Barbhuiya has relied on a decision of
this Court in Nazrul Islam Borbhuiya Vs. Yakub Ciddikie & Anr . reported
in 2006 (3) GLT 828. In paragraph 5 of the said judgment, this court has
observed as under:
"5. As found by me earlier, the suit was dismissed by the trial court
on the dated fixed for production of TCA No. 9/1989 and not far the date
of hearing of the suit. In Rahimuddin Sheikh and Ors. V. Sarifan Nesa and
Ors., AIR 1954 Assam 92 and Viswanath Naganath Andage Vs. Mhadeo
Sultanappa Waghmode, AIR 1964 Bombay 40, it has been held that even
when a suit was dismissed for non-appearance, order IX Rule 9 would
have no application of the date of hearing had not been fixed or if the
same had not been notified to the plaintiff and that an application for
restoration of such a suit would fall under Section 151 of the code and
the period of limitation would be 3 (three) years under Article 137 of the
Limitation Act, 1963. The instant case is obviously not one in which the
suit was dismissed for the non-appearance of the petitioner on a date
fixed for hearing of the suit but for production of the record relating to
TCA No. 9/1989. That being the factual position borne out by the facts on
record, the period of limitation for the application for restoration of the
suit filed by the petitioner would be 3 (three) years from the date of
dismissal of the suit. Under the circumstances application for restoration
of the suit filed by the petitioner was clearly within the period of limitation
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prescribed by Article 137 of the Limitation Act, 1963. It is true that the
petitioner himself was equally responsible for this mis adventure in the
sense that he ought to have filed his application for restoration under
Section 151 of the Code and not under Order ix Rule 9 of the Code."
Mr. Gupta, on the other hand submits that the delay was not properly
explained.
I have given my anxious consideration to the submissions made by the
learned counsel for the parties.
The word "hearing" appearing in Order 9 means recording of evidence
only. Therefore, I have reasons to agree with the submission made by Mr.
Barbhuiya that on 20.12.2016, the suit was not fixed for hearing of evidence,
but, on that day, the case was posted for hearing the parties under Section 89
of the Code and for framing of issue. Therefore, there is no such delay and the
petitioner unnecessarily filed the application praying for condonation of delay.
The suit is of the year 2016 and it is a long pending litigation.
Considering the aforesaid fact, the prayer for setting aside the order
dated 20.12.2016 is allowed.
The parties are directed to appear before the learned trial court on
01.02.2022.
The learned trial court shall proceed further with the matter from the
stage of hearing the parties under Section 89 of the Code of Civil Procedure/for
framing of issue.
With the aforesaid observation and direction, the present application is
disposed of.
JUDGE
Comparing Assistant
