Page No.# 1/7 vs Mangaldoi Samabai Samittee @ Khalihoi ...
2025 Latest Caselaw 3999 Gua

Gauhati High Court

Page No.# 1/7 vs Mangaldoi Samabai Samittee @ Khalihoi ... on 11 March, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                 Page No.# 1/7

GAHC010131782013




                                                           2025:GAU-AS:2807

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

                         Case No. : CRP/355/2013

         BRAHMAPUTRA ANNUNNATA KRISHIPAM SAMABAI SAMITTEE
         A SOCIETY HAVING ITS PRINCIPAL OFFICE AT RAJADUAR, NORTH
         GUWAHATI, P.O.- NORTH GUWAHATI, IN THE DIST. OF KAMRUP, ASSAM,
         REP. BY ITS SECY., VIZ. SRI CHAKRESWAR DAS, S/O- LT. PANCHANAN
         DAS, A R/O- RAJADUAR, NORTH GUWAHATI, IN THE DIST. OF KAMRUP,
         ASSAM.



         VERSUS

         MANGALDOI SAMABAI SAMITTEE @ KHALIHOI KRISAK SAMABAI
         SAMITTEE and 10 ORS
         HAVING ITS OFFICE AT KHALIHAI VILLAGE UNDER SIPAJHAR MOUZA IN
         THE DIST. OF DARRANG, ASSAM, REP. Y ITS SECY. VIZ. SRI GOBINDA
         RAJBONGSHI, S/O- LT. HARMOHAN RAJBONGSHI, A R/O VILL.- KHALIHAI
         UNDER MOUZA- SIPAJHAR, IN THE DIST. OF DARRANG, ASSAM.

         2:GOBINDA RAJBONGSHI
          S/O- LT. HARMOHAN RAJBONGSHI.

         3:ON THE DEATH OF PRASANNA RAJBONGSHI HIS LEGAL HEIRS NAMELY
          S/O- LT. HARMOHAN RAJBONGSHI.

         3.1:SMTI. RASHMI RAJBONGSHI
         W/O LATE PRASANNA RAJBONGSHI.
         RESIDENT OF VILLAGE- KHALIHAI UNDER MOUZA- SIPAJHAR
          DIST.- DARRANG
          STATE-ASSAM. PIN- 784145

         3.2:SRI KHARGESWAR RAJBONGSHI
          S/O LATE PRASANNA RAJBONGSHI.
         RESIDENT OF VILLAGE- KHALIHAI UNDER MOUZA- SIPAJHAR
          DIST.- DARRANG
                                                       Page No.# 2/7

STATE-ASSAM. PIN- 784145

3.3:SRI NRIPEN RAJBONGSHI
 S/O LATE PRASANNA RAJBONGSHI.
RESIDENT OF VILLAGE- KHALIHAI UNDER MOUZA- SIPAJHAR
 DIST.- DARRANG
 STATE-ASSAM. PIN- 784145

3.4:SRI MADAN RAJBONGSHI
 S/O LATE PRASANNA RAJBONGSHI.
RESIDENT OF VILLAGE- KHALIHAI UNDER MOUZA- SIPAJHAR
 DIST.- DARRANG
 STATE-ASSAM. PIN- 784145

4:ON THE DEATH OF LANKESHWAR RAJBONGSHI HIS LEGAL HEIRS
NAMELY
 S/O- LT. SOTORA RAJBONGSHI.

4.1:SMTI. RUKUMONI RAJBONGSHI
W/O LATE LANKESWAR RAJBONGSHI.
RESIDENT OF VILLAGE- KHALIHOI UNDER MOUZA- SIPAJHAR
 DIST.- DARRANG
 STATE-ASSAM. PIN- 784145

4.2:SRI DIPAK RAJBONGSHI
 S/O LATE LANKESWAR RAJBONGSHI.
RESIDENT OF VILLAGE- KHALIHOI UNDER MOUZA- SIPAJHAR
 DIST.- DARRANG
 STATE-ASSAM. PIN- 784145

4.3:SRI JITEN RAJBONGSHI
 S/O LATE LANKESWAR RAJBONGSHI.
RESIDENT OF VILLAGE- KHALIHOI UNDER MOUZA- SIPAJHAR
 DIST.- DARRANG
 STATE-ASSAM. PIN- 784145

4.4:SRI PABAN RAJBONGSHI
 S/O LATE LANKESWAR RAJBONGSHI.
RESIDENT OF VILLAGE- KHALIHOI UNDER MOUZA- SIPAJHAR
 DIST.- DARRANG
 STATE-ASSAM. PIN- 784145

5:KAILASH RAJBONGSHI
 S/O- LT. GANESH RAJBONGSHI.

6:HARICHARAN RAJBONGSHI
 S/O- LT. LALIT RAJBONGSHI.
                                                                           Page No.# 3/7

            7:KABICHARAN RAJBONGSHI
             S/O- LT. LALIT RAJBONGSHI.

            8:SAMBHU RAM RAJBONGSHI
             S/O- LT. C.R. RAJBONGSHI.

            9:RAMESWAR RAJBONGSHI
             S/O- LT. MANIK RAJBONGSHI.

            10:PRAFULLA RAJBONGSHI
             S/O- LT. MUKTA RAJBONGSHI.

            11:UPEN RAJBONGSHI
             S/O- LT. JALTI RAJBONGHSI
             OPP. PARTY NO. 2 TO 11 ARE R/O VILL.- KHALIHAI
             UNDER MOUZA- SIPAJHAR
             IN THE DIST. OF DARRANG
            ASSAM

For the Petitioner(s)       : Mr. A.K. Gupta, Advocate
For the Respondent(s)       : Ms. D.D. Barman, Addl. Sr. Govt. Advocate


Date of Hearing                          : 11.03.2025
Date of Judgment                         : 11.03.2025




                                       BEFORE
                        HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                              JUDGMENT AND ORDER (ORAL)

Heard Mr. A.K. Gupta, the learned counsel appearing on behalf of the petitioner. Ms. D.D. Barman, the learned Additional Senior Government Advocate appears on behalf of the respondents.

2. This is an application filed under Section 115 of the Code of Civil Procedure, 1908 (for short, "the Code") challenging the judgment and order Page No.# 4/7

dated 16.03.2013 passed by the learned Civil Judge, Darrang at Mangaldoi (hereinafter referred to as, "the learned First Appellate Court") in Misc Appeal No. 08/2009 whereby the appeal filed under Order XLIII Rule 1 (d) read with Section 104 of the Code was dismissed.

3. From the materials on record, it is seen that the respondents herein had filed the suit before the Court of the learned Munsiff No. 1, Darrang at Mangaldoi (hereinafter referred to as, "the learned Trial Court") which was registered and numbered as Title Suit No. 8/1995. In the said suit, the petitioner herein was the defendant No. 1. It is further seen that in the said suit written statement was filed by the defendants. However, nobody appeared on behalf of the defendants, for which, the suit proceeded ex-parte and vide the judgment and decree dated 08.07.1996, the said suit was decreed in favour of the plaintiffs.

4. The petitioner/defendant No. 1 on coming to learn about the said judgment and decree dated 08.07.1996 filed an application under Order IX Rule 13 of the Code which was registered and numbered as Misc (J) Case No. 08/2008. It is the case of the petitioner/the defendant No. 1 in the said application that they have never received any summons in respect to the said suit and the written statement was filed on behalf of the petitioner/the defendant No. 1 by a certain person impersonating the defendant No. 1. On the ground that the summons were not served upon the defendant No. 1 and they only came to learn on 14.05.2008 from one Abu Sama, son of Late Ramjan Ali that there was some ex-parte decree passed on 08.07.1996, the petitioner/the defendant No. 1 made inquiry and could obtain the copy of the plaint, written statement as well as the judgment and thereupon filed the said application Page No.# 5/7

under Order IX Rule 13 of the Code.

5. It is further seen that the respondents herein who were the plaintiffs filed a written objection to the said application filed under Order IX Rule 13 of the Code stating inter alia that the petitioner/the defendant No. 1 had due notice about the suit as well as the date of hearing. Further to that, it was also stated that it did not constitute a sufficient cause for non-participation on the date of hearing.

6. It is however seen from the impugned order dated 04.05.2009 passed by the learned Trial Court in Misc(J) Case number 08/2008 that the petitioner/the defendant No. 1 was afforded opportunity to adduce evidence as regards, the fact that the written statement was not filed on their behalf. However, in spite of opportunities being granted, the learned counsel on behalf of the defendant No. 1/the petitioner did not appear and it is under such circumstances, the order dated 04.05.2009 was passed thereby rejecting the application under Order IX Rule 13 of the Code.

7. It is further seen that pursuant thereto, the defendant No. 1/the petitioner being aggrieved preferred an appeal before the Court of the learned First Appellate Court which was registered as Misc. Appeal No. 08/2009 challenging the order dated 04.05.2009 passed in Misc (J) Case No. 08/2008 and the learned First Appellate Court vide the impugned order dated 16.03.2013 had dismissed the said appeal primarily on the ground that in spite of various opportunities being granted to the petitioner/the defendant No. 1, they did not take steps for proving that the written statement was not filed on their behalf and as they failed to discharge their burden and as such, the learned Trial Court was justified in passing the order dated 04.05.2009.

Page No.# 6/7

8. In the backdrop of the above, this Court has heard the learned counsels appearing on behalf of the petitioner as well as the respondents and has also perused the materials on record.

9. From the materials on record, it transpires that the case of the petitioner herein is that they did not file the written statement before the learned Trial Court in Title Suit No. 08/1995. It is the further case of the petitioner that some imposter had filed the written statement on behalf of the petitioner/the defendant No. 1. It is further seen that due opportunity was given to the petitioner/the defendant No. 1 to adduce evidence in that regard. However, in spite of the opportunity given, the learned counsel on behalf of the petitioner/the defendant No. 1 remained absent when the matter was taken up for hearing.

10. From the above materials on record, it therefore transpires that the learned counsel appearing on behalf of the petitioner/defendant No. 1 was negligent in pursuing its duties. It is a settled principle of law that on account of the fault of the counsel, a party should not suffer.

11. Be that as it may, this Court further finds it relevant to observe that there are apparent laches/negligence on the part of the petitioner/the defendant No. 1 insofar as not taking appropriate steps against the counsel for whose negligent conduct the order dated 04.05.2009 was passed. In this process, huge amount of judicial time has been wasted. Under such circumstances, it is the opinion of this Court that if no cost is imposed in the present case, it would have an adversarial effect on the administration of justice.

12. Considering the above, this Court therefore interferes with the order dated Page No.# 7/7

04.05.2009 passed in Misc (J) Case No. 08/2008 as well as the judgment and order dated 16.03.2013 passed in Misc Appeal No. 08/2009 and further restores the judgment and order dated Misc (J) Case No. 08/2008 to the file of the learned Trial Court i.e. the Court of the learned Munsiff No. 1, Mangaldoi. This Court further imposes a cost of Rs. 50,000/- upon the petitioner/defendant No. 1 herein which has to be deposited on the next date, so fixed herein under.

13. Taking into account that both the parties are represented, this Court directs both the parties to appear before the learned Trial Court i.e. the Court of the learned Munsiff No. 1, Darrang at Mangaldoi on 21.04.2025. On the said date, the petitioner herein, who is also the petitioner in Misc(J) Case No. 08/2008 shall deposit the cost of Rs. 50,000/- which shall be a condition for the purpose of further proceeding with Misc(J) Case No. 08/2008. This Court further grants liberty to the respondents herein who are the opposite parties in Misc(J) Case No. 08/2008 to file appropriate application before the learned Trial Court for release of the said amount. The learned Trial Court shall pass appropriate orders in that regard.

14. The Registry shall immediately return the LCR of Misc Appeal No. 08/2009 before the learned Court below.

15. With the above observations and directions, the instant petition stands disposed of.

JUDGE

Comparing Assistant