Gauri Shankar Sharma vs Roop Chand Kucheria And 9 Ors
2025 Latest Caselaw 5757 Gua

Gauhati High Court

Gauri Shankar Sharma vs Roop Chand Kucheria And 9 Ors on 26 June, 2025

                                                              Page No.# 1/8

GAHC010188722024




                                                       undefined

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

                           Case No. : MC/67/2024

         GAURI SHANKAR SHARMA
         S/O LT. GHEWAR CHAND SHARMA
         C/O M/S SHRI PAWAN STORES
         MAIN ROAD
         BONGAIGAON TOWN
         P.O. AND DIST- BONGAIGAON
         ASSAM


          VERSUS

         ROOP CHAND KUCHERIA AND 9 ORS
         S/O SRI MOOL CHAND KUCHARIA
         R/O MAIN ROAD
         BONGAIGAON TOWN
         P.O. AND DIST- BONGAIGAON
         ASSAM

         2:RADHA DEVI
         W/O LT. GHEWAR CHAND SHARMA
          R/O C/O GHEWAR CHAND KAILASH CHAND SHARMA
          CHAPIANIA KA PAS
          P.O. DESHNOKE
          DIST- BIKANER
          RAJASTHAN

         3:PRAHLAD RAI SHARMA
         S/O LT. GHEWAR CHAND SHARMA
         STATE BANK OF BIKANER and JAIPUR
         HEAD OFFICE
         P.O. and DIST- JAIPUR
         RAJASTHAN

          4:JAY PRAKASH SHARMA ALIAS JAY PRAKASH UPADHAYA
                                                   Page No.# 2/8

S/O LT. GHEWAR CHAND SHARMA
BROTHERS HOUSE
PAKKO NEW ROAD
KATMANDU
NEPAL

5:KAILASH CHAND SHARMA
S/O LT. CHEWAR CHAND SHARMA
C/O GHEWAR CHAND KAILASH CHAND SHARMA CHAPAIA KA PAS
P.O. DESHNOKE
DIST- BIKANER
RAJASTHAN

6:DURGA DEVI SHARMA
D/O LT. GHEWAR CHAND SHARMA
W/O SRI GHANASHYAM DAS JAJRA
NEAR BAL BARI NEKETAN SCHOOL
P.O. GANGASAHAR
DIST- BIKANER
RAJASTHAN

7:KRISHNA DEVI SHARMA
D/O LT. GHEWAR CHAND SHARMA
W/O SRI SUNDARLAL PANCHARIYA
C/O DAYALWALA DHUP FACTORY
BANTHIA KA CHOK
BARA BAZAR
BIKANER
P.O. and DIST- BIKANER
RAJASTHAN

8:SAMPAT DEVI SHARMA
D/O LT. GHEWAR CHAND SHARMA
W/O SRI BHIKAM CHAND PANCHAYAT
P.O. NAKHA MANDI
DIST-BIKANER
RAJASTHAN

9:CHHOTI DEVI SHARMA
D/O LT. GHEWAR CHAND SHARMA
W/O SRI DAYAL CHAND PANCHARIYA
C/O DAYALWALA DHUP FACTORY
BANTHIA KA CHOK
BARA BAZAR
BIKANER
P.O. and DIST- BIKANER
RAJASTHAN
                                                                         Page No.# 3/8

           10:URMILA DEVI SHARMA
           D/O LT. GHEWAR CHAND SHARMA
           W/O SRI BABULAL SHARMA
           C/O KAPIL GENERAL STORES CHUNGI CHOKI
           GAJNEER ROAD
           P.O. and DIST- BIKANER
           RAJASTHAN
           ------------
           Advocate for : MR. B J MUKHERJEE
           Advocate for : appearing for ROOP CHAND KUCHERIA AND 9 ORS



                                 BEFORE
                    HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                      ORDER

Date : 26.06.2025

Heard Mr. D. Mozumder, learned Senior Counsel, assisted by Mr. B.J. Mukherjee, learned counsel for the applicant. Also heard Mr. R.C. Sancheti, learned counsel for the respondents.

2. This miscellaneous application, under Order 9 Rule 9 of the CPC, is preferred by the applicant for setting aside the order of dismissal, dated 10.04.2023, passed by this Court, in CRP No. 349/2014.

3. It is to be noted here that vide order dated 10.04.2023, a Coordinate Bench of this Court was pleased to dismiss the civil revision petition, being CRP No. 349/2014, for non-prosecution and for want of steps, and also vacated the interim order of stay, if any.

4. Mr. Mozumder, learned Senior Counsel for the applicant submits that challenging the judgment and decree dated 01.07.2014, passed by the learned Civil Judge, Bongaigaon, in Title Appeal No. 21/2011, a civil revision petition, being CRP No. 349/2014, was preferred by the applicant herein, and that vide judgment and decree dated 01.07.2014, the learned Civil Judge, Bongaigaon Page No.# 4/8

had upheld the judgment and decree dated 09.05.2011, passed by the learned Munsiff, Bongaigaon, in T.S. No. 46/2006, under Assam Urban Areas Rent Control Act, 1972. Mr. Mozumder also submits that in the said revision petition, record was called for and notice was also issued, and initially, Mr. B.R. Dey, learned Senior Counsel was engaged, but he suffered demise, and thereafter, Mr. S.S. Sharma, learned Senior Advocate was engaged in the case. Mr. Mozumder further submits that the matter was listed on 10.04.2023, in the daily cause list, under 'Orders' column as item No. 16, and prior to that day, the matter was listed only on 28.01.2015. Thereafter, the same was listed on 10.04.2023, and when the matter was called for, the petitioner remained unrepresented and thereafter, this Court was pleased to dismiss the revision petition for default and for want to steps. Mr. Mozumder also submits that on 10.04.2023, the newly engaged Senior Counsel could not appear as his name was not reflected in the cause list and only the name of earlier set of engaged counsel were reflected, and that it was not within the knowledge of the newly engaged counsel that rectificatory and fresh steps were required to be taken against some of the respondents, and only when the petitioner was about to take necessary steps for substitution of legal heirs of respondent No. 1 on account of his death, then it was learnt that the aforementioned revision petition was dismissed. Mr. Mozumder also submits that there was no wilful negligence on the part of the petitioner/applicant herein, and therefore, it is contended to set aside the order of dismissal dated 10.04.2023, and restore the civil revision petition to file.

4.1. In support of his submission, Mr. Mozumder has referred the following decisions:

(i) Sri Manik Chand Patowa vs. Sri Sekhar Roy, reported in Page No.# 5/8

2016 4 GauLT 383.

(ii) Raja Bibi vs. Saboor Wani and Ors., reported in 1990 0 Supreme (J&K) 304.

(iii) Qazi Gh. Nabi vs. Qazi Ab. Hamid and Ors., reported in 2001 0 Supreme (J&K) 189.

5. On the other hand, Mr. Sancheti, learned counsel for the respondents has vehemently opposed the application. He submits that the application is not at all maintainable, and the applicant has not approached the Court with clean hands. Mr. Sancheti also submits that in paragraph No. 7 of the application, it is stated that on account of death of the respondent No. 1, while the applicant was about to take necessary steps for substitution of legal heirs, he came to know about the order of dismissal dated 10.04.2023, and that Title Suit No. 46/2006, was instituted by the respondents herein for eviction of the applicant herein, and the suit was decreed on 09.05.2011, and he preferred the revision petition in the year 2014, and thereafter, he failed to take steps and also remained unrepresented. Mr. Sancheti further submits that the respondent No. 1 has not suffered demise and this is a misleading fact, and therefore, Mr. Sancheti has contended to dismiss this application.

6. In support of his submission, Mr. Sancheti has referred to the following decisions:

(i) Shri K. Jayaram and Ors. vs. Bangalore Development Authority and Ors., reported in 2021 0 Supreme (SC) 804.

(ii) Sciemed Overseas Inc. Vs. BOC India Limited and Ors., reported in (2016) 3 SCC 70.

7. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the application and the documents placed on Page No.# 6/8

record, and also perused the order of dismissal of this Court, dated 10.04.2023.

8. It appears that the civil revision petition was dismissed by a Coordinate Bench of this Court for non-prosecution and for want of steps. It is not in dispute that Title Suit No. 46/2006, was decreed in favour of the respondents herein by the learned Munsiff, Bongaigaon, and thereafter, the said judgment and decree dated 09.05.2011, was challenged in Title Appeal No. 21/2011, but the same came to be dismissed, vide judgment and decree dated 01.07.2014, by the learned Civil Judge, Bongaigaon. Thereafter, the applicant preferred CRP No. 349/2014, which came to be dismissed, vide order dated 10.04.2023. Thereafter, the present application is preferred under Order 9 Rule 9 of the CPC, which reads under:

"9. Decree against plaintiff by default bars fresh suit.--

(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party."

8.1. Rule 8 of Order 9 provides that:

"8. Procedure where defendant only appears.--

Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case Page No.# 7/8

the Court shall pass a decree against the defendant upon such admission, and where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder."

9. In the case in hand, the civil revision petition was dismissed on two counts; firstly, for non-prosecution, and secondly, for want of steps. Though, contradictory arguments were advanced before this Court regarding maintainability of this application under Order 9 Rule 9 of the CPC, yet the grounds mentioned in the application appear to be not at all satisfactory.

10. In paragraph No. 4 of the application, a stand has been taken by the applicant that the matter was listed on 10.04.2023, under 'Orders' column as item No. 16, in the daily cause list, and prior to 10.04.2023, the matter was listed on 28.01.2015. Thereafter, on 10.04.2023, the matter was first listed after engagement of Mr. S.S. Sharma, learned Senior Counsel in the revision petition. But, from the vakalatnama, filed by Mr. Sharma, learned Senior Counsel, it appears that the said vakalatnama was executed only on 23.05.2023, much after passing of the order dated 10.04.2023, and on that day i.e. 10.04.2023, Mr. Sharma, learned Senior Counsel was not at all engaged. It also appears from the submission of Mr. Sancheti, learned counsel for the respondents that the applicant has made a false statement in paragraph No. 7 of the application that he came to know about the order dated 10.04.2023, when he was about to take necessary steps for substitution of legal heirs of respondent No. 1 on account of his death, yet the respondent No. 1 never died and he is still alive. Thus, none of the grounds appear to be satisfactory. The applicant has not approach the Court with clean hands.

11. In this context, it is relevant to refer the observation made by Hon'ble Supreme Court in the case of MCD vs. State of Delhi and Anr., reported Page No.# 8/8

in (2005) 4 SCC 605, wherein in paragraph 21, it has been held that:

"...A litigant who approaches the court is bound to produce all documents which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party. The second respondent, in our opinion, was not justified in suppressing the material fact that he was convicted by the Magistrate on an earlier occasion. Since the second respondent deliberately suppressed the crucial and important fact, we disapprove strongly and particularly, the conduct of the second respondent and by reason of such conduct, the second respondent disentitled himself from getting any relief or assistance from this Court. We, however, part with this case with a heavy heart expressing our strong disapproval of the conduct and behaviour but direct that the second respondent to pay a sum of Rs 10,000 by way of cost to the appellant herein."

12. Since the applicant herein has not approached this Court with clean hands, he is not entitled to any equitable relief. Accordingly, this application stands dismissed with a cost of Rs. 10,000/-, which shall be deposited to the Advocates' Welfare Fund of the Gauhati High Court Bar Association within a period of two weeks from today.

JUDGE

Comparing Assistant