Page No.# 1/4 vs Md. Badar Uddin Ahmed
2025 Latest Caselaw 250 Gua

Gauhati High Court

Page No.# 1/4 vs Md. Badar Uddin Ahmed on 6 May, 2025

                                                                       Page No.# 1/4

GAHC010235002024




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

                                 Case No. : CRP(IO)/466/2024

            KAMRUJ JAMAN AND ANR
            S/O JOINAL ABDIN, R/O VILL- SIMALIYA, P.O.-MULARKUCHI, P.S.-BELSOR,
            DIST- NALBARI (ASSAM), PIN-781303

            2: NAZRUL ZAMAN
             S/O JOINAL ABDIN
             R/O VILL- SIMALIYA
             P.O.-MULARKUCHI
             P.S.-BELSOR
             DIST- NALBARI (ASSAM)
             PIN-78130

            VERSUS

            MD. BADAR UDDIN AHMED
            S/O LATE JAHUR UDDIN AHMED, VILL- BIHAMPUR, P.O.-MULARKUCHI,
            P.S.-BELSOR, DIST- NALBARI (ASSAM), PIN-781303



Advocate for the Petitioner   : MR. A ROSHID, MS. T BEGUM

Advocate for the Respondent : MR. M NATH, D J CHAKMA,MR. A
BHATTACHARJEE,MAUSAM NATH,MS. D L DEKA




                                   BEFORE
                       HONOURABLE MR. JUSTICE BUDI HABUNG

                                          ORDER

Date : 06.05.2025 Page No.# 2/4

1. Heard Mr. A Roshid, learned counsel for the appellant. Also heard Mr. M Nath, learned counsel appearing on behalf of the respondent.

2. By filing this application under Article 227 of the Constitution of India r/w Section 151 of the Code of Civil Procedure, the petitioner challenged the order dated 03.10.2024, passed by the Court of Civil Judge, Jr. Div. No. 2, Nalbariin Misc(J) Case No. 109/2023 (in T.S No. 47/2023).

3. By the impugned order dated 03.10.2024, the learned Civil Judge, Jr. Div. No. 2, Nalbari rejected the petition filed by the applicant/petitioners herein under Order XV Rule 3 of C.P.C r/w Section 151 of C.P.C for framing preliminary issue on the question of mis-joinder of defendant party No. 1 & 2 in the suit, on the ground that the presence of the petitioner/defendant No. 1 & 2 are necessary for the proper adjudication of the title suit no. 47/2023.

4. The case of the petitioner is that the respondent/plaintiff filed the T.S No. 47/2023 before the Trial Court,praying for Khas possession, decree of partition, permanent injunction and consequential relief on a plot of land measuring8 lecha, Daag No. 337, Patta No. 72, Vill- Bihampur, P.S- Belsor, District- Nalbari.

5. The defendants/petitioners herein filed their written statement denying the allegations of the plaintiff/respondent No. 1. Thereafter, the petitioner/defendant No. 1 & 2 filed a Misc(J) Case No. 109/2023 (in T.S No. 47/2023) under Order XV Rule 3 r/w Section 151 of the C.P.C praying to framing preliminary issue on misjoinder of the defendants No. 1 & 2 i.e. the present petitioner.The plaintiff/respondent, herein, filed written objection denying the prayer of the petitioners.

6. Thereafter, by the impugned order dated 03.10.2024, the said petition filed by the defendant/petitioners herein was rejected.

7. The contention of the petitioners is that they do not possess any land in scheduled land. It is their father Shri Jainal Abdin who is the owner and possessor of the land, therefore, they are not anecessary party to the suit. Therefore, prays for setting aside of the impugned order and for a direction for framing preliminary issue on the question.

8. The learned counsel for the respondent, while supporting the order dated Page No.# 3/4

03.10.2024 passed by the learned Civil Judge, Jr. Dv. No. 2, Nalbari submits that under Order XV Rule III, there is no provision provided for framingpreliminary issue.

9. I have heard the learned counsel for the parties and considered their submissions.

10. Order XV Rule III of the code provides , "Where the parties are at issue on some question of law, or of fact, and issues have been framed by Court as hereinbefore provided, if the Court is satisfied that no further argument or evidence then than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the Court may proceed to determine such issues, and if finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons have been issued for the settlement of issues only or for the final disposal of the suit. But where the summons has been issued for the settlement of issues only, the parties or the pleaders are present and none of them objects."

11. In the instant case, no any issues as such, have been framed asrequired under Order XV Rule 3. The defendant/petitioners are contesting the case by filling written statement. Under the fact and circumstances of the case, and in view of the above provisions provided under Order XV Rule 3, I am of the opinion that since the case is at the stage of framing issues in the suit, let the issues be frame in the suit, and if the learned trial court deemed it necessary to decide the question of misjoinder, let it be taken up first and decide in accordance with law.

12. In view of the observation made above, the impugned order dated 03.10.2024 is set aside. Accordingly, this petition stands dismissed. The stay order if any, stands vacated.

13. With the above, the petition stand disposed of.

Page No.# 4/4

JUDGE

Comparing Assistant