Page No.# 1/8 vs Smti Swarnalipi Bora And 5 Ors
2025 Latest Caselaw 4884 Gua

Gauhati High Court

Page No.# 1/8 vs Smti Swarnalipi Bora And 5 Ors on 21 May, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                  Page No.# 1/8

GAHC010241372022




                                                          2025:GAU-AS:6446

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

                       Case No. : CRP(IO)/291/2022

         MAGHI RAM DAS
         S/O LATE CAMERA DAS, R/O VILL AND P.O.-MAJGAON, MOUZA-
         HATICHUNG, P.S.-JAJORI, DIST- NAGAON, ASSAM-782001



         VERSUS

         SMTI SWARNALIPI BORA AND 5 ORS
         D/O LATE GIRIDHAR SUT @ BORA, W/O SRI MONOOJ TAMULY PHUKAN,
         R/O LAOKHOWA ROAD, LAKHIMI PATH, NORTH HAIBARGAON, MOUZA -
         NIZ SAHAR, DIST-NAGAON, ASSAM, PIN-782001

         2:SANKAR DUTTA
          S/O LATE BALU RAM DUTTA
          R/O P.P. ROAD
          PANIGAON (NEAR ITI)
          MOUZA-TOWN
          DIST-NAGAON
         ASSAM
          PIN-782001

         3:MAKHAN SARMA
          S/O JAGAT SARMA
          R/O VILL-MAHARIATI
          P.O.-BEBEJIA
          MOUZA - NIZ SAHAR
          DIST-NAGAON
         ASSAM
          PIN-782001

         4:MATI RAM DAS
          R/O LAOKHOWA ROAD
          LAKHIMI PATH
                                                                  Page No.# 2/8

          NORTH HAIBARGAON
          MOUZA - NIZ SAHAR
          DIST-NAGAON
          ASSAM
          PIN-782001

         5:SMTI BANTI HAZARIKA BORA
         W/O JAGYA BORA
          R/O LAOKHOWA ROAD
          LAKHIMI PATH
          NORTH HAIBARGAON
          MOUZA - NIZ SAHAR
          DIST-NAGAON
         ASSAM
          PIN-782001

         6:SMTI SABITA RAI
         W/O BIJAN RAI
          R/O LAOKHOWA ROAD
          LAKHIMI PATH
          NORTH HAIBARGAON
          MOUZA - NIZ SAHAR
          DIST-NAGAON
         ASSAM
          PIN-78200




                                  BEFORE
               HON'BLE MR. JUSTICE DEVASHIS BARUAH

     Advocates for the petitioner(s)   :   Mr. PK Roychoudhury

     Advocates for the respondent(s) : Mr. S Chamaria

For respondent No.1

Date of hearing & judgment : 21.05.2025

JUDGMENT & ORDER(ORAL)

Heard Mr. PK Roychoudhury, the learned counsel appearing on behalf of the petitioner. Mr. S Chamaria, the learned counsel appears on behalf of the Page No.# 3/8

respondent No.1 and Mr. S Khound, the learned counsel who appears on behalf of the respondent No.3.

2. The supervisory jurisdiction of this Court has been invoked challenging the order dated 05.11.2019 passed in Misc.(J)Case No.134/2017 arising out of Title Suit No.22/2023 by the Court of the learned Civil Judge, Nagaon whereby the application filed under Order IX Rule 13 for setting aside the judgment and decree dated 14.07.2017 along with the composite prayer for restoring of the suit which was dismissed for default on 05.08.2016 was allowed.

3. At the outset, this Court finds it very pertinent to take note of that although there is no limitation prescribed for filing an application under Article 227 of the Constitution, but it shocks and surprises this Court that the impugned order which was passed on 05.11.2019 was put to challenge by filing the present proceedings on 23.11.2022, that too, without assigning any reasons. On this count alone, the instant application filed under Article 227 of the Constitution ought to be dismissed, on the ground of laches. Be that as it may, taking into account the grounds urged by the learned counsels appearing on behalf of the parties, this Court finds it relevant to take note of the facts which led to the filing of the instant application.

4. The respondent No.1 had filed a suit seeking a decree for declaration of right, title and interest of the plaintiff over the suit land; for permanent injunction against the defendants; for cancellation of the mutation recorded in favour of the defendants in respect to the suit patta; as well as for a decree for declaration that in the event of introduction or discovery of fraud deed of conveyance or any other documents relating to the alleged transfer of the suit Page No.# 4/8

land in course of the trial, the same be declared as illegal, ultra vires and consequently no right could have been confirmed on the basis of such illegal documents etc.

5. In the said suit, which was registered and numbered as Title Suit No.22/2013, the petitioner herein, who was the defendant No.3 had filed the written statement along with the counter claim. In the counter claim, the defendant No. 3 prayed for a decree declaring his right, title and interest over the claimed land described in the Schedule to the said counter claim and for recovery of possession.

6. The materials on record reveals that the suit was dismissed for default on 05.08.2016 on the ground that the plaintiff, inspite of being given due opportunity to file the evidence failed to do so and the learned Trial Court further proceeded with the suit proceedings for the purpose of deciding the counter claim. The counter claim was decreed vide the judgment and decree dated 14.07.2017, in favour of the defendant No. 3, who is the petitioner herein. Pursuant thereto, the plaintiff filed three applications on 20.10.2017 before the learned trial court. One was an application under Order XI Rule 9 for setting aside of the order of dismissal of the suit for default on 05.08.2016, which was registered and numbered as Misc.(J)Case No.133/2017. The second application was an application filed under Order IX Rule 13 for setting aside the judgment and decree dated 14.07.2017 passed in the counter claim which was registered and numbered as Misc.(J) Case No.134/2017 and the third application was an application under Section 5 explaining the delay in filing the applications and for condoning the said delay. The petitioner, who was the defendant No. 3, opposed the applications by filing a written objection in the proceedings under Order IX, Page No.# 5/8

Rule 13, as would appear from Annexure-8 to the present proceedings. Thereupon, the learned Trial Court passed the order on 05.11.2019, whereby the order dated 05.08.2016 by which the suit was dismissed for default was recalled and the suit was restored to the file of the Court; the application for setting aside the judgment and decree dated 14.07.2017 passed in the counter claim was allowed as well as the delay was condoned. It is under such circumstances, the present proceedings has been filed.

7. Mr. PK Roychoudhury, the learned counsel appearing on behalf of the petitioner has drawn the attention of this Court that the learned Trial Court erred in law in restoring the suit to the file without passing an order in Misc. (J)Case No.133/2017 and the learned Trial Court erroneously allowed the prayer made in Misc.(J)Case No.133/2017 while deciding Misc(J) Case No.134/2017. He further submitted that although the learned Trial Court by the order dated 05.11.2019 recalled the order dated 05.08.2016, but taking into account that no order was passed in Misc.(J)Case No.133/2017 and subsequently the suit was transferred to the Court of the learned Civil Judge (Junior Division) No.2, Nagaon on account of the change in the pecuniary jurisdiction in view of the amendment to the Bengal, Agra And Assam Civil Courts Act, 1887 , the said application being Misc.(J) Case No.133/2017 has been dismissed for default. He, therefore, submitted that in view of that order by which Misc.(J) Case No. 133/2017 was dismissed for default, the suit cannot be proceeded with.

8. On the other hand, Mr. S Chamaria, the learned counsel appearing on behalf of the respondent No.1, who is the plaintiff submitted that though two applications were filed separately under Order IX Rule 9, as well as Order IX Page No.# 6/8

Rule 13, but the learned Trial Court vide the impugned order dated 05.11.2019 had allowed both the applications as would be seen from a perusal of the impugned order dated 05.11.2019 itself. He, therefore, submitted that this is not a fit case wherein this Court ought to exercise its supervisory jurisdiction, inasmuch as, what the learned Trial Court had done was in the interest of justice and by duly assigning reasons.

9. Mr. S Khound, the learned counsel appearing on behalf of the respondent No.3, who is the defendant No. 2 submitted that the said defendant No.2 did not oppose to the applications so filed by the plaintiff on the ground that the land of the defendant No. 2 is different from the suit patta.

10. This Court had heard the learned counsels appearing on behalf of the parties and has given its anxious consideration.

11. A perusal of the impugned order dated 05.11.2019 clearly shows the learned Trial Court had dealt with both the prayers for setting aside the order dated 05.08.2016 as well as the judgment and decree dated 14.07.2017.

12. The learned Trial Court further upon hearing both the sides have assigned due reasons for allowing the application for condonation of delay as well as for setting aside the order dated 05.08.2016 and the judgment and decree dated 14.07.2017. It is though noticed that the learned Trial Court ought to have passed the order in respect to setting aside of the order dated 05.08.2016 in Misc.(J).Case No.133/2017 separately, but the learned Trial Court in a composite manner had interfered with the order dated 05.08.2016 and the judgment and Page No.# 7/8

decree dated 14.07.2017.

13. This Court further takes note of the reasons which had been assigned and the manner in which the learned Trial Court had exercised its jurisdiction. It is the opinion of this Court that it is not the case that the learned Trial Court did not have the jurisdiction to pass the order. It is only the question that the learned Trial Court was required to pass the order in Misc.(J) Case No.133/2017 separately. The error so committed is trivial in nature, for which, it would not be justified to exercise its supervisory jurisdiction of this Court. This Court further finds no ground for interfering with the impugned order dated 05.11.2019 passed in Misc.(J) Case No.134/2017 on the reasons assigned.

14. Be that as it may, this Court finds it relevant to observe that the learned Trial Court ought to have imposed certain costs in view of the fact that the suit as well as the counter claim stood revived and the Defendants would have to endure delay in the disposal of the suit as well as the counter claim.

15. This Court is of the opinion that a costs of Rs.25000/- would be a reasonable costs in this regard.

16. Considering the above, this Court, therefore, disposes of the instant proceedings with the following observation(s) and direction(s):

(i). This Court is not interfering with the order dated 05.11.2019 passed in Misc.(J) Case No. 134/2017 arising out of Title Suit No.22/2013.

(ii) The order dated 05.11.2019 passed in Misc.(J) Case No. 134/2017 shall also be construed to be an order passed in Misc(J) Case No. 133/2017.

(iii) In view of the opinion and observations of this Court in Clause (ii) herein Page No.# 8/8

above, the dismissal of the said application being Misc.(J).Case No.133/2017 by the Court of the learned Civil Judge (Junior Division) No.2, Nagaon for default is held to be non est.

(iv). This Court further imposes a costs of Rs.25,000/- upon the plaintiff which has to be deposited before the learned Trial Court on the next date so fixed hereinafter.

(v). This Court further takes note of that vide an order dated 16.12.2022, the order dated 05.11.2019 passed in Misc.(J) Case No.134/2017 was stayed. The said stay order is vacated.

(vi). It has also been brought to the notice of this Court that in view of the stay order so passed by this Court, the further proceedings of Title Suit No.22/2013 as well as the counter claim could not be proceeded. Under such circumstances, this Court fixes 16.06.2025 for appearance of both the parties before the learned Trial Court i.e. the Court of the learned Civil Judge (Junior Division) No. 2 Nagaon. The learned Trial Court shall, thereupon proceed with the suit from the stage of the order dated 05.08.2016.

17. With the above, the instant application stands disposed of.

JUDGE Comparing Assistant