M/S. Assam Tea Industries vs Smt. Suman Baori And 7 Ors
2022 Latest Caselaw 4218 Gua

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GAHC010012652020




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

                           Case No. : CRP/89/2022

         M/S. ASSAM TEA INDUSTRIES
         REPRESENTED BY ITS PROPRIETOR SRI MAKHAN LAL GATTANI, AGED
         ABOUT 55 YEARS, S/O LATE SIVADAYAL GATTANI, R/O MARIANI ROAD,
         NEAR ONGC COMPLEX, CINNAMARA, JORHAT, PIN-785704



         VERSUS

         SMT. SUMAN BAORI AND 7 ORS.
         R/O KATHALGURI TEA ESTATE, P.S.-MARIANI, DIST-JORHAT, ASSAM

         2:SMTI. BEHULA BAORI
          R/O KATHALGURI TEA ESTATE
          P.S.-MARIANI
          DIST-JORHAT
         ASSAM

         3:NIBARAN BAORI
          R/O KATHALGURI TEA ESTATE
          P.S.-MARIANI
          DIST-JORHAT
         ASSAM

         4:JITU SAIKIA
          S/O LATE JOGYESWAR SAIKIA
         VILL-DUKLINGIAI
          P.S.-MARIANI
          DIST- JORHAT
         ASSAM

         5:THE REGIONAL MANAGER
          UNITED INDIA INSURANCE CO. LTD.
          BHANGAGARH
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             GHY-5

            6:PRANABENDU SEN
             S/O LATE M.C. SEN
            VILL-SARUPATHAR
             DIST-GOLAGHAT

            7:KORIJAM KAMINI SINGHA
             S/O K.R. SINGHA
            VILL-SARUPATHAR
             P.S.-SARUPATHAR
             DIST-GOLAGAHT
            ASSAM

            8:THE REGIONAL MANAGER
             M/S NEW INDIA ASSURANCE CO. LTD.
             RAJIB BHAWAN
            ABC
             G.S. ROAD
             GHY-

Advocate for the Petitioner   : MS. SUDAKSHINA K.

Advocate for the Respondent : MR. A J SAIKIA (R5)




                                         BEFORE
                    THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
                                     ORDER

02. 11. 2022

Heard Mr. B Kaushik, learned counsel for the petitioner. Also heard Mr. AJ Saikia, learned counsel for the respondent No. 5. Though notice has been duly served upon the other respondents, none appears to represent them.

2. The background fact of the case is as under:

I. It is alleged by the petitioner did not have any notice of the proceeding of MAC Case No.1819/2013 and no notice was ever served upon it and that the judgment and order passed by the Page No.# 3/4

learned Member, MACT-III, Kamrup (M) awarding an amount of Rs. 9,51,000/- in favour of the claimant in MAC case No. 1819/2013 was an ex-parte award against the present petitioner.

II. It is further pleaded that; the present petitioner came to know about the judgement only on receipt of notice from Bakijai Officer. Accordingly, the present petitioner filed an application under Order 9 Rule 13 of the CPC'1908 for setting aside the ex-parte judgement. Such application was registered as Miscellaneous case No. 29/2018.

III. The learned Tribunal below issued notice in the said case and the case was fixed on 22.01.2019 for service report and written objection. On that date, the insurance company i.e. respondent No. 5 herein filed an application seeking time to file objection.

IV. The learned counsel for the petitioner was absent on that date without taking any step. In that view of the matter, the learned court below dismissed the application for default.

V. Being aggrieved, an application for restoration of the Miscellaneous case No. 29/2018 in MAC case No. 1819/2013 was filed. Said application has been rejected by the impugned order dated 14.10.2019 and the present petition is filed.

VI. The ground explained by the petitioner in the said case for default are that the learned counsel for the petitioner was to attend a motion matter at 10.30 am in Gauhati High Court and accordingly the Hajira could not be filed at 10.30 am. And though the learned Counsel attended the case after attending the High Court, in the meantime, the petition was dismissed for non-prosecution. It is also Page No.# 4/4

explained that the other junior counsel was having fever on that.

VII. The learned court below while taking up the matter entered into the merit of the application filed for setting aside the ex-parte judgment and dismissed the restoration application.

3. In the considered opinion of the court, such action on the part of the learned Tribunal amounts to exceeding is jurisdiction inasmuch what was determined was the restoration application and not the merit of the ex- parte order in as much as the said matter was at the stage of service and objection.

4. In that view of the matter, the impugned order dated 14.10.2019 is set aside and quashed the learned court below is directed to consider the restoration application on its own merit.

5. While parting with the record it is made clear that this court has not commented on the merit, either on the restoration application or on the application filed under Order 9 Rule 13 of the CPC'1908 and the learned Tribunal shall decide it on its own merit without being influenced by any observation made in this case.

Accordingly, the revision petition stands disposed of.

JUDGE

Comparing Assistant