Page No.# 1/3 vs Musst.Mallika Bibi
2023 Latest Caselaw 3667 Gua

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GAHC010023422011




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

                                   Case No. : SAO/4/2011

            AKRAM UDDIN BARBHUIYA and 4 ORS


            2: ABDU HAKIM BARBHUIYA


            3: ABDUL HAMID BARBHUIYA

             ALL ARE SONS OF LATE NIMAR ALI BARBHUIYA

            4: ABDUL AHAD BARBHUIYA MINOR



            5: AZAD HUSSAIN BARBHUIYA MINOR

             BOTH ARE SONS OF ABDUL HAMID BARBHUIYA
             AND REPRESENETD BY THEIR FATHER ABDUL HAMID BARBHUIYA
             ALL ARE RESIDENTS OF VILL. BARHAILAKANDI-III
             P.O. BARHAILAKANDI
             P.S. and DIST. HAILAKANDI
             ASSAM

            VERSUS

            MUSST.MALLIKA BIBI
            W/O MONIR UDDIN BARBHUIYA, R/O VILL. BARHAILAKANDI-III, P.O.
            BARHAILAKANDI, P.S. and DIST. HAILAKANDI, ASSAM.



Advocate for the Petitioner   : MR.P K DEKA

Advocate for the Respondent : MRH I CHOUDHURY
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                                     BEFORE
                    HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                            ORDER

Date : 12.09.2023

Heard Mr. P.K. Deka, learned counsel for the appellant and Mr. N. Hoque, learned counsel for the respondent.

The appeal is admitted upon the following three substantial question of law.

1. Whether the learned Appellate Court below was correct in quashing and setting aside the judgment dated 08.12.2008 and decree dated 03.01.2009 passed in Title Suit No. 103/2006 by remanding back the matter to the Court of Munsiff No. 1, Hailakandi with a direction that the Plaintiff's witnesses be wallowed for cross-examination, whereas the said learned Munsiff No. 1 vide his order dated 20.06.2008 passed in Title Suit No. 2006 had already expunged the evidence of the PWs due to the failure on the part of the Plaintiff to appear before the said Trial Court on various dates along with her witnesses for their cross-examination and the said order has attained finality for not being challenged in any forum?

2. Whether the learned Appellate Court below was correct in passing the impugned judgment dated 31.03.2010 passed in Title Appeal No. 2/2009 setting aside the finding of the learned Trial Court below, whereas the settled position of law is that once the Plaintiff has failed to adduce any evidence in the court of law, his suit is to be dismissed and the learned Munsiff No. 1 vide his judgment dated 08.12.2008 and decree dated 03.01.2009 has rightly dismissed the suit of the Plaintiff under Order 17 Rule 3(a) of the Civil Procedure Code?

3. Whether the impugned finding of the learned Appellate Court below has any legal basis since the Appellate Court below in one hand recorded the Page No.# 3/3

gross negligence on the part of the Plaintiff and on the other hand, granted relief to the Plaintiff whimsically and arbitrarily in violation of the established legal provision?

List the matter for hearing in the month of November, 2023.

JUDGE

Comparing Assistant