Page No.# 1/7 vs Page No.# 2/7
2025 Latest Caselaw 3372 Gua

Gauhati High Court

Page No.# 1/7 vs Page No.# 2/7 on 21 February, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                       Page No.# 1/7

GAHC010243762015




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

                         Case No. : CRP(IO)/111/2015

         SAILESWAR SARMA and 7 ORS.


         2: SMT. ERA DEVI


         3: SMT. HIMANI DEVI


         4: SMT. KALYANI DEVI


         5: SMT. RANJU DEVI


         6: SMT. MANJU DEVI



         7: SMT. MONIKA DEVI
          NO. 1 IS THE SON OF NO.2 IS THE WIFE NO.3 TO 7 ARE THE D/O. LT.
         CHAKRESWAR SARMA.

         8: SRI HITESWAR SARMA

          S/O. LT. BHUBANESWAR SARMA
          ALL ARE R/O. KAMAKHYA HILLS
          KAMAKHYA
          GHY-10
          KAMRUP M
          ASSAM

         VERSUS
                                                      Page No.# 2/7

ON THE DEATH OF DHARMESWAR SARMA HIS LEGAL HEIRS and ORS.
S/O. LT. NARESWAR SARMA, R/O. MALIGAON CHARIALI, GHY-11.

1.1:SMTI. BHARATI SARMA
W/O LATE DHARMESWAR SARMA

MALIGAON CHARIALI
GUWAHATI-11
KAMRUP(M)
ASSAM.

1.3:SMTI. MAMU DEVI
 C/O DR. NASIUR RAHMAN
THE RAHMAN RESIDENCY
 H.NO. 7
TOKOBARI ROAD
 NEAR RAILWAY GATE 4
 GUWAHATI-1
ASSAM.

1.4:MISS. POMPI DEVI
 D/O LATE DHARMESWAR SARMA

MALIGAON CHARIALI
GUWAHATI-11
KAMRUP(M)
ASSAM.

2:SMT. ANNA DEVI


3:SRI DIPAK SARMA



4:SRI DIMBESWAR SARMA



5:SRI BIJAN SARMA



6:SMT. NAMITA DEVI

NO.2A IS THE WIFE AND 2B TO 2D ARE THE SONS
AND NO.2E IS THE D/O. LT. GOBARDHAN SARMA
NO.2A TO 2D ARE R/O. KAMAKHYA HILLS
                                                              Page No.# 3/7

KAMAKHYA
GHY-10
NO.2E IS R/O. BHUTNATH
GHY-9
KAMRUP M
ASSAM.

7:SMT. BASANTI DEVI



8:SRI PRANAB SARMA

NO.3 IS THE WIFE AND NO4 IS THE S/O. LT. JOGESWAR SARMA


9:SRI JALESWAR SARMA



10:SMT. SARASWATI DEVI



11:SMT. BULBULI DEVI



12:SMT. JOGAMAYA DEVI

NO.5 IS THE SON AND NO.6 IS THE WIFE AND NO.7 and 8 ARE THE D/O. LT.
BHUNESWAR SARMA. ALL ARE R/O. KAMAKHYA HILLS
KAMAKHYA
GHY-10
KAMRUP M
ASSAM

      For the Petitioner(s)    : Mr. S. P. Roy, Advocate
      For the Respondent(s)    : Ms. S. Dasgupta, Advocate
                               : Mr. A. M. Khan, Advocate

            Date of Hearing    : 21.02.2025
            Date of Judgment   : 21.02.2025
                                                                         Page No.# 4/7

                                 BEFORE
                  HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                          JUDGMENT AND ORDER (ORAL)

Heard Mr. S. P. Roy, the learned counsel appearing on behalf of the Petitioners and Ms. S. Dasgupta, the learned counsel appearing on behalf of the Respondent Nos. 1.1 and 1.4.

2. This is an application filed under the Article 227 of the Constitution challenging the order dated 21.02.2014 whereby the applications filed by the petitioners who were the plaintiffs for withdrawal of the suit with liberty to re-file was rejected.

3. From a perusal of the materials on record, it is seen that the petitioners herein as plaintiffs initially had instituted a suit being Title Suit No. 266/07 seeking partition as well as other consequential reliefs in respect to the properties described in the schedule to the plaint. Pursuant thereto, the defendants filed their written statement wherein they had stated that the partition had already taken place and the suit properties belonged to them. Subsequent thereto, in the year 2013, the defendants filed an application under Order VI Rule 17 Code of the Civil Procedure, 1908 (for short 'the Code') whereby they wanted to incorporate certain amendments to the written statement to the effect that they have been issued separate pattas. The plaintiffs filed their written objection to the said application under Order VI Rule 17 of the Code which is still pending.

4. It is further seen from the materials on record that taking into account that the Revenue Authorities have already partitioned the land and issued Page No.# 5/7

separate pattas to the defendants as could be discerned from the application filed under Order VI Rule 17 of the Code for amendment of the written statement, the plaintiffs upon being advised that a composite suit would be required to be filed for seeking partition as well as challenging the pattas which have been issued in favour of the defendants, the petitioners as plaintiffs filed an application being Petition No.4414/2013 on 29.08.2013 for withdrawal of the suit with the liberty to re-file.

5. To the said application, the defendants objected by filing their written objection. The learned Trial Court vide the order dated 21.02.2014 dismissed the said application seeking withdrawal of the suit with liberty to re-file. It is under such circumstances, the present application has been filed before this Court challenging the order dated 21.02.2014.

6. Mr. S. P. Roy, the learned counsel appearing on behalf of the petitioners submitted that the learned Trial Court failed to take into account that in view of the issuance of the separate pattas during the pendency of the suit sometime in the year 2010, as reflected in the application seeking amendment of the statement, it would require a composite suit seeking partition as well as challenging the pattas so issued. The learned counsel further submitted that the learned Trial Court completely erred in law by failing to take into account that the provisions of Order XXIII Rule 1(3) of the Code is not only in respect of allowing withdrawal for formal defects but also for other sufficient grounds. He submitted that as the suit presently would not serve the purpose of the plaintiffs in view of the issuance of a separate patta by the Revenue Authorities in favour of the defendants, it constituted a sufficient ground in terms with Order XXIII Rule 1(3) of the Page No.# 6/7

Code for which the application so filed for withdrawal of the suit with liberty ought to have been allowed.

7. Ms. S. Dasgupta, the learned counsel for the respondent Nos. 1.1 and 1.4 submitted that the plaintiffs had due knowledge that there was a partition and the plaintiffs remained quiet for all these 6 (six) years after the filing of the written statement and as such, the learned Trial Court was justified in not allowing the plaintiffs to withdraw the suit with liberty to re- file.

8. Upon hearing the learned counsels appearing on behalf of the parties and also taking into account the materials on record, it transpires that though the plaintiffs initially filed the suit seeking partition of the properties described in the Schedule to the plaint as well as for consequential reliefs and the defendants had stated in the written statement that there was already a partition being made in favour of the defendants, but in the year 2010, during the pendency of the suit, separate pattas were issued in favour of the defendants which aspect is clear from the application filed seeking amendment of the written statement in the year 2013. This application though objected by the plaintiffs by filing their objection but the question remains that after the issuance of the pattas in question and without there being a substantial challenge to the said pattas, the plaintiffs would not have a fair chance in the trial. Under such circumstances, the plaintiffs had filed the application seeking withdrawal of the suit with a liberty to file afresh by filing a more composite suit.

9. This Court also duly takes note of the submission of Mr. S. P. Roy, the learned counsel to the effect that the learned Trial Court had passed the Page No.# 7/7

impugned order only on the basis that there was no formal defect but failed to take into account that amongst the conditions mentioned in Order XXIII Rule 1(3) of the Code, if there are sufficient grounds, then also the learned Trial Court ought to have allowed the withdrawal of the suit with liberty to re-file. This vital aspect having not been taken into consideration, the learned Trial Court had failed to exercise the jurisdiction conferred under law. Accordingly, as the order dated 21.02.2014 passed in Petition No. 4414/2013 shocks the conscience of this Court and suffers from error in jurisdiction, this Court interferes with the order dated 21.02.2014.

10. This Court further allows the petition filed by the petitioners before the learned Trial Court being Petition No.4414/2013 dated 29.08.2013 and permits the petitioners who are the plaintiffs to withdraw the suit being T.S. No.266/07 with a liberty to re-file. Accordingly, T.S. No.266/07 stands disposed off on withdrawal and the plaintiffs therein shall have liberty to file a fresh suit.

11. This Court further observes, before parting with the record that this Court had not decided anything on the merits of the suit being T.S. No.266/07 or to the suit to be filed pursuant to the liberty granted. If any fresh suit is filed, the learned Trial Court shall deal with the same as per the provisions of law without being influenced by the observations made herein above.

JUDGE

Comparing Assistant