Robita Barman @ Robita Barman ... vs Manju Kalita And 4 Ors
2022 Latest Caselaw 1628 Gua

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GAHC010008482022




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

                            Case No. : CRP/5/2022

         ROBITA BARMAN @ ROBITA BARMAN KALITA
         W/O LATE GUARI SHANKAR KALITA
         RESIDENT OF HOUSE NO. 15, PUN SARANIA, PS CHANDMARI, GUWAHATI
         03, KAMRUP M ASSAM



         VERSUS

         MANJU KALITA AND 4 ORS
         W/O SRI JOY CHARAN DEKA
         RESIDENT OF AMAR PATH, HOUSE NO. 3, GEETANAGAR,M.T ROAD,
         GUWAHATI 24, DIST KAMRUP M ASSAM

         2:SMTI KANIKA DAS @ SMTI KANIKA KALITA DAS
         W/O SRI AJOY DAS
          RESIDENT OF COLLEGEROAD
          KUNDIL NAGAR
          HOUSE NO. 12
          BELTOLA
          GUWAHATI 29
          DIST KAMRUP M ASSAM

         3:SMTI NIYOTI DAS @ SMTI NIYOTI KALITA DAS

          W/O DEBEN CHANDRA DAS
          D.B ROAD
          MELACHAKAR TINIALI
          SIBSAGAR
          785640

         4:SMTI DEBAJANI KALITA @ DEBAJANI KALITA DUTTA.
         W/O SRI DIPENJYOTI DUTTA
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            RESIDENT OF HOUSE NO. 15
            OPP GANESH MANDIR PUB SARANIA HILL SIDE ROAD
            CHANDMARI SILPUKHURI
            GUWAHATI 03

            5:SMTI JYOTSNA KALITA @ JYOTSNA KALITA CHOUDHURY
            W/O NABARUP CHOUDHURY
            RESIDENT OF HOUSE NO. 5
             BASISTHAPUR II
             HATIGAON
             GUWAHATI 24
             DIST KAMRUP M ASSA

Advocate for the Petitioner   : MR. M HOSSAIN

Advocate for the Respondent : MR. S R GOGOI (R-1 to 5)

BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH

13.05.2022

Heard Mr. M. Hossain, the learned counsel for the petitioner and Mr. S. R. Gogoi, the learned counsel appearing on behalf of the respondents.

By way of the instant application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 16.12.2021 passed in T.S. No. 26/17 whereby the trial court, i.e. the Court of the Civil Judge No.3, Kamrup (M) at Guwahati had fixed 21.01.2022 for hearing on petition Nos. 2271 & 2272/2021, argument and judgment.

It appears from the record that on 22.04.2021, a petition bearing No. 973/2021 was filed by the petitioner herein who is the defendant No. 1 in the suit. By way of the said petition, the defendant No. 1 sought for recalling of the order dated 13.09.2019, 04.03.2020, 06.05.2020, 26.06.2020, 24.08.2020, 03.10.2020, 09.12.2020, 11.01.2021 as well as 16.03.2021 passed in T. S. No. Page No.# 3/4

26/17.

The record shows that on the said date, i.e. on 22.04.2021, an order was passed to the effect that the court would function in restricted way up to 30.04.2021, therefore, the case was adjourned. In the said order it was also reflected that the defendant No. 1, as petitioner, had filed the petition bearing No. 973/2021 and directed hearing of the said petition on 31.05.2021.

The record further shows that on 31.05.2021, 26.07.2021 and 21.09.2021 nothing substantial had happened in the said suit proceeding as the Presiding Officer was either availing roster duty or the Presiding Officer was on leave.

It is relevant to note that vide the order dated 21.09.2021, the Sheristadar of the Court of the Civil Judge No. 3, Kamrup (M) at Guwahati had fixed 22.11.2021 for necessary order. Thereafter, on 22.11.2021 the court below although the case was not fixed for argument had heard the learned counsel for the plaintiff and fixed 16.12.2021 for argument by the defendants side.

It is relevant to take note that the petition No. 973/2021 however was not taken up for consideration and/or disposed. Thereafter, the record shows that on 16.12.2021, the plaintiff side filed a petition bearing No. 2271/21 under the provision of Order XII Rule 6 read with Section 151 of the CPC and another petition No.2272/21. It is however not known as to what the petition No. 2272/21 was filed for. It further appears from the order dated 16.12.2021 that the defendant had filed a petition bearing No. 2282/21 praying for adjournment which was allowed by the trial court. Thereafter, the trial court in the said order fixed 21.01.22 for hearing of the petition Nos. 2271/21 and 2272/21, argument and judgment.

I have heard the learned counsels for the parties and given my anxious consideration to the matter.

From a perusal of the record as is available from the instant revision Page No.# 4/4

application it transpires that the petition No. 973/21 whereby the defendant sought for recalling of various orders, was been taken up for consideration by the trial court. It further appears that on one hand the plaintiff has filed the petition Nos. 2271/21 and 2272/21 but the court irrespective of the said had fixed the matter for judgment. The manner in which the trial court had proceeded with the matter shocks the judicial conscious of this Court inasmuch as when a petition bearing petition No. 973/21 is pending and without an adjudication thereof, it is not understood how the trial court would have gone ahead to decide the suit or even hearing the argument. More so, if an adjudication in the petition No. 973/2021 is done in favour of the petitioner/defendant No. 1, it would enable the defendant No. 1 to adduce evidence.

Consequently, therefore, this Court set aside the order dated 16.12.21 with a direction to the trial court to first decide the petition No. 973/21 and thereafter shall proceed with the adjudication of the suit in accordance with law.

The order of stay granted by this Court on 18.01.2022 whereby the further proceedings of T.S. No. 26/17, pending in the Court of the Civil Judge No. 3, Kamrup (M) at Guwahati was stayed, is vacated and the parties are directed to appear before the trial court on 01.06.2022.

In view of the above, this revision petition stands disposed of.

JUDGE

Comparing Assistant