Gauhati High Court
Kamal Uddin Barbhuiya vs Monir Ali Laskar @ Moyuruddin ... on 28 October, 2021
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GAHC010125612015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/551/2015
KAMAL UDDIN BARBHUIYA
S/O LT. AMIR ALI BORBHUIYA, VILL. NARAINPUR-V, P.O. NARAINPUR, PS.,
DIST- HAILAKANDI
VERSUS
MONIR ALI LASKAR @ MOYURUDDIN LASKAR
S/O LT. MONTAJ ALI LASKAR, VILL. NARAINPUR-V, P.O. NARAINPUR,
P.S.and DIST- HAILAKANDI
1.1:SUMSUN NESSA LASKAR
W/O MONIR ALI LASKAR @ MOYURUDDIN LASKAR
VILL AND PO -NARAINPUR V
DIST-HAILAKANDI
ASSAM
1.2:SALIN UDDIN LSKAR
S/O MONIR ALI LASKAR @ MOYURUDDIN LASKAR
VILL AND PO -NARAINPUR V
DIST-HAILAKANDI
ASSAM
1.3:JOSHIM UDDIN LASKAR
S/O MONIR ALI LASKAR @ MOYURUDDIN LASKAR
VILL AND PO -NARAINPUR V
DIST-HAILAKANDI
ASSAM
1.4:MINHAJ UDDIN LASKAR
S/O MONIR ALI LASKAR @ MOYURUDDIN LASKAR
VILL AND PO -NARAINPUR V
DIST-HAILAKANDI
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ASSAM
1.5:RINA BEGUM LASKAR
D/O MONIR ALI LASKAR @ MOYURUDDIN LASKAR
VILL AND PO -NARAINPUR V
DIST-HAILAKANDI
ASSA
Advocate for the Petitioner : MS.N DUTTA
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
JUDGMENT
Date : 28-10-2021
Heard Mr. S.K. Barkataki, learned counsel for the petitioner and Mr. K.A. Mazumdar,
learned counsel for the respondent.
2. This is an application under Section 115 of the Code of Civil Procedure challenging the
order dated 17.09.2015 passed by the learned Civil Judge, Hailakandi in T.S. No. 55/2014.
3. In the year 2014, the present petitioner filed a suit being T.S. No. 55/2014 against 9
persons. The suit was for claiming damages on account of damage caused to his land and the
tank. All the defendants received notices, but inspite of that the defendants No. 1, 2, 3 and 9
did not appear. Therefore, the suit proceeded exparte against them. The other defendants
appeared and took time. In fact, they took several dates for filing their written statement.
Finally, the learned trial court passed an order directing that the suit shall proceed exparte
against them also.
4. Thereafter the defendant No. 8 filed a petition along with written statement and
prayed before the learned trial court that the earlier exparte order against him should be
vacated and his written statement should be accepted. Thereafter, on 17.09.2015, the learned
trial court accepted the prayer of the defendant No. 8 and accepted his written statement.
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5. Now the present petition has been filed challenging the legality and validity of the said
order dated 17.09.2015. It has been pleaded that in order to vacate an ex-parte order under
Order 9 Rule 13 of the Code of Civil Procedure, the petitioner has to show sufficient cause.
The petitioner states that the defendant No. 8 did not show sufficient cause and therefore,
the present petition has been filed.
6. I have given my anxious consideration to the submissions made by the learned
counsel for the parties.
7. Here at this stage, a brief visit to Section 115 of the Code of Civil procedure would be
fruitful. Section 115 of the CPC reads as under:
"(1) The High Court may call for the record of an case which has been decided
by any Court subordinate to such High Court and in which no appeal lies
thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material
irregularity, the High Court may make such order in the case as it thinks fit."
8. Section 115 of the CPC states that the High Court shall not, vary or reverse any order
made or any order deciding an issue in the course of a suit, or other proceedings, except
where the order, if it has been made in favour of the party applying for revision, would have
finally disposed of the suit or other proceedings. The High Court exercises jurisdiction under
Section 115 of the CPC when subordinate courts exercises jurisdiction not vested in it by law
and when subordinate court fails to exercise its jurisdiction so vested. High Court can exercise
jurisdiction under Section 115 of the CPC if a subordinate court illegally exercise its
jurisdiction. But the rider is that in its jurisdiction under Section 115 of the CPC, the High
Court is not entitled to vary or reverse any decree or order against which an appeal lies to the
High Court or to any court subordinate to it.
9. It is a basic tenet of natural justice that while deciding or adjudicating a dispute, both
the sides should be given opportunity of being heard. Here in this case, by accepting the
written statement of the defendant No. 8, the learned trial court has given the opportunity of
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being heard to him. In that case, the petitioner being the plaintiff of the suit does not have
any say. Moreover, it is settled position of law that the procedural law is handmaid of justice.
It is also a settled position of law that the provision, which stipulates that the written
statement must be filed within 90 days of receiving notice is not a mandatory provision.
10. For the aforesaid reason, I find that the learned trial court has not committed any error
while accepting the written statement of the defendant No. 8. I find that the present petition
is devoid of any merit and therefore stands rejected.
11. The suit before the learned trial court is an old pending one. Therefore, the learned
trial court, is directed to speed up the process of trial and shall endevour to dispose of the
suit within next 6 months.
12. With the aforesaid direction, the revision petition stands disposed of.
JUDGE
Comparing Assistant
