Page No.# 1/2 vs Hemen Sarmah
2021 Latest Caselaw 88 Gua

                                                                       Page No.# 1/2

GAHC010235442016




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : CRP(I/O)/43/2016

            MAHESWAR SARMAH and ANR
            S/O LT. PARAMANANDA SARMAH

            2: SMTI. JUNU DEVI
             D/O LT. LT. PARAMANANDA SARMAH
             BOTH ARE R/O VILL. JAGIROAD
             P.O. and P.S. JAGIROAD
             DIST- MORIGAON
            ASSA

            VERSUS

            HEMEN SARMAH
            S/O DINABANDHU SARMAH, VILLAGE JAGIGAON, P.O. JAGI, P.S.
            JAGIROAD DIST MORIGAON, ASSAM



Advocate for the Petitioner   : MRS.J GOGOI

Advocate for the Respondent : MS. R M SARMAH




             Linked Case : I.A.(Civil)/1960/2016

            MAHESWAR SARMAH and ANR



             VERSUS

            HEMEN SARMAH
                                                                                    Page No.# 2/2


             ------------
             Advocate for : MR.D C C PHUKAN
             Advocate for : appearing for HEMEN SARMAH



                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                               ORDER

Date : 11.01.2021

Heard Mr. D.C.C. Phukan, learned counsel for the petitioners and Mr. H. Gupta, learned counsel for the respondent.

The order dated 20.02.2016 passed by the learned Munsiff No.1, Morigaon in Misc.(J) Case No.82/2015 in T.S. No.62/2011, thereby rejecting the prayer for striking out pleadings is under challenge in the present application under Article 227 of the Constitution of India.

In course of deliberation, it is observed that the respondent herein is the plaintiff in T.S. No.8/2010 where there are three defendants. It is further seen that cause title of the counter claim, it is mentioned that there are three plaintiffs and the name of the respondent is shown as defendant. The trial Court judgment is not on record. From the appellate judgment dated 26.11.2015 passed in T.A. No.27/2015, it appears that against decree passed in the suit and against dismissal of the counter-claim, two separate appeals were preferred by the two petitioners herein. The name of the third defendant/ counter-claimant is not reflected either as appellant or as a proforma respondent. If that be so, the counter-claim of the petitioners, being indivisible, would otherwise abate. Therefore, both sides are directed to seek instruction about the status of the defendant no.3, namely, Pramila Devi in the suit/ counter-claim and in the appeal. As the petitioners are the co-defendants, they would file an affidavit to that effect prior to the next date of listing.

List after the ensuing Bihu vacation.

JUDGE

Comparing Assistant