Gauhati High Court
Page No.# 1/5 vs Pabitra Kalita And 5 Ors on 1 August, 2022
Page No.# 1/5
GAHC010131922022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/140/2022
JOGEN DEKA AND 2 ORS
S/O. LT. PADMA RAM DEKA @ PADMA RAM KALITA, R/O. VILL. AND P.O.
PANCHARIA, DALAR PATHAR, P.S. HAJO, MOUZA-PUB BANGSHAR, DIST.
KAMRUP (R), ASSAM.
2: KHAGEN DEKA
S/O. LT. PADMA RAM DEKA @ PADMA RAM KALITA
R/O. VILL. AND P.O. PANCHARIA
DALAR PATHAR
P.S. HAJO
MOUZA-PUB BANGSHAR
DIST. KAMRUP (R)
ASSAM.
3: RAJEN DEKA
S/O. LT. PADMA RAM DEKA @ PADMA RAM KALITA
R/O. VILL. AND P.O. PANCHARIA
DALAR PATHAR
P.S. HAJO
MOUZA-PUB BANGSHAR
DIST. KAMRUP (R)
ASSAM
VERSUS
PABITRA KALITA AND 5 ORS
S/O. LT. THANU RAM KALITA, R/O. VILL. AND P.O. PACHARIA, DALAR
PATHAR, P.S. HAJO, MOUZA-PUB BANGSHAR, DIST. KAMRUP (R), ASSAM.
2:SUREN KALITA
S/O. LT. THANU RAM KALITA
R/O. VILL. AND P.O. PACHARIA
DALAR PATHAR
Page No.# 2/5
P.S. HAJO
MOUZA-PUB BANGSHAR
DIST. KAMRUP (R)
ASSAM.
3:BIREN KALITA
S/O. LT. THANU RAM KALITA
R/O. VILL. AND P.O. PACHARIA
DALAR PATHAR
P.S. HAJO
MOUZA-PUB BANGSHAR
DIST. KAMRUP (R)
ASSAM.
4:BASANTA KALITA
S/O. LT. THANU RAM KALITA
R/O. VILL. AND P.O. PACHARIA
DALAR PATHAR
P.S. HAJO
MOUZA-PUB BANGSHAR
DIST. KAMRUP (R)
ASSAM.
5:PRASANNA KALITA
S/O. LT. THANU RAM KALITA
R/O. VILL. AND P.O. PACHARIA
DALAR PATHAR
P.S. HAJO
MOUZA-PUB BANGSHAR
DIST. KAMRUP (R)
ASSAM.
6:SMT. MALATI KALITA
D/O. LT. THANU RAM KALITA
R/O. VILL. AND P.O. PACHARIA
DALAR PATHAR
P.S. HAJO
MOUZA-PUB BANGSHAR
DIST. KAMRUP (R)
ASSAM
Advocate for the Petitioner : MR. M J BARUAH
Advocate for the Respondent : MR. T DEURI
Page No.# 3/5
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 01.08.2022
Heard Mr. M. J. Baruah, learned counsel appearing on behalf of the
petitioners. Also heard Mr. T. Deuri, learned counsel appearing on behalf of the
respondent.
2) This is an application under Article 227 of the Constitution challenging
the orders dated 03.03.2021 as well as 23.12.2021 had passed by the Court of
Munsiff, Kamrup (R), Amingaon in Title Suit No. 30/2020.
3) The facts of the instant case is that the respondent herein has filed suit
being Title Suit No. 30/2020. The summons in respect to a suit was duly served
upon the defendants/the petitioners herein. The petitioner thereafter contacted
a lawyer and also gave their vakalatnama lawyer in question. However, on
03.03.2021, the lawyer in question had only filed the Petition No. 371/2021, but
did not enclose the vakalatnama, nor mentioned in the said petition for whom
the lawyer was appearing.
4) Consequently, the Court below passed an Order on 03.03.2021 rejecting
the petition no. 371/2021 filed by the lawyer and directed the suit shall
proceeded ex-parte against the defendant Nos. 1, 2 & 3. Thereafter, on account
of Covid restrictions, the matter could not proceed and it was on 04.10.2021,
an application was filed under Order IX Rule 7 of the Code for setting aside the
Page No.# 4/5
Order dated 03.03.2021 to proceed ex-parte. The said application was
registered and numbered as Petition No. 1024/2021. It further appears that on
23.12.2021, the said application was rejected on the ground that the petitioners
were absent and the Court fixed the matter on 08.03.2022 for Ex-parte
evidence.
5) The learned counsel for the petitioners further submitted that the suit
proceeded and was fixed on 29.06.2022 for judgment. It is under such
circumstances that the petitioners had filed the instant application under Article
227 of Constitution and this Court vide an Order dated 28.06.2022 stayed
further proceedings of Title Suit no. 30/2020 pending before Court of Munsiff,
Kamrup (R), Amingaon till the next date.
6) I have heard the learned counsels for the parties and perused the
materials on record.
7) It appears from a perusal of the impugned Order dated 03.03.2021 that
Court rejected the petition No. 371/2021 on the ground that the there was no
mention of the defendant No. neither any vakalatnama was also tagged
alongwith the said petition. It also appears on the perusal of the plaint that
there were three principal defendants and one proforma defendant. The filing of
the petition, i.e., petition no. 371 dated 03.03.2021 was done by the lawyer and
it was his responsibility to look into it and place on record for whom he was
appearing and also enclosed the vakalatnama therewith.
8) Taking into consideration that there were only three defendants and one
proforma defendant, the lawyer may have filed the said application mentioning
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that he was appearing on behalf of the defendants.
9) The Court therefore ought to have taken into consideration the said
aspect of the matter or also ought to have enquired with the lawyer in question
instead of passing the order dated 03.03.2021 thereby, rejecting the application
Petition no. 371/2019. Therefore, the Order dated 03.03.2021 is set aside by
this Court. In view of the setting aside the Order dated 03.03.2021, the
subsequent proceedings in the suit becomes redundant. Consequently, this
Court therefore sets aside the Order dated 23.12.2021.
10) The learned counsel for the petitioners submits that on the next date
itself, as may be fixed by this Court, the written statement on behalf of the
defendants shall be filed. In view of the above, this Court therefore, directs the
parties to appear before the Court below on 24.08.2022, on which date the
petitioners herein who are defendant Nos. 1, 2 & 3 shall file their written
statement without fail on that date.
11) With the above, the instant petition stands disposed of. Interim order, if
any, stands vacated.
JUDGE
Comparing Assistant
