Gauhati High Court
Shri Bhaben Bharali vs On The Death Of on 14 October, 2025
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GAHC010227952023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MC/82/2023
SHRI BHABEN BHARALI
S/O- LATE KHUMONSON BHARALI, VILL.- RANDHANIJAN, MOUZA-
PARBATIA, P.O.- MALOWPATHAR, DIST.- JORHAT (ASSAM)
VERSUS
ON THE DEATH OF RESPONDENT NO. 1 NAMELY KUSHESWAR DAS,
HIS LEGAL HEIRS GIRIDHAR DAS AND ORS
1.1:SHRI GIRIDHAR DAS
S/O- LATE KUSHESWAR DAS
VILL.- RANDHANIJAN
MOUZA- PARBATIA
P.O.- MALOWPATHAR
DIST.- JORHAT(ASSAM)
1.2:SHRI NABIN DAS
S/O- LATE KUSHESWAR DAS
VILL.- RANDHANIJAN
MOUZA- PARBATIA
P.O.- MALOWPATHAR
DIST.- JORHAT(ASSAM)
1.3:SHRI SARULORA DAS
S/O- LATE KUSHESWAR DAS
VILL.- RANDHANIJAN
MOUZA- PARBATIA
P.O.- MALOWPATHAR
DIST.- JORHAT(ASSAM)
2:SHRI DANGARLORA DAS
S/O- LATE KUSHESWAR DAS
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VILL.- RANDHANIJAN
MOUZA- PARBATIA
P.O.- MALOWPATHAR
DIST.- JORHAT(ASSAM
Advocate for the Petitioner : MR. B K DAS,
Advocate for the Respondent : MR. T J MAHANTA, MS.P BHATTACHARYA
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
14.10.2025
1. The appellant/applicant has filed his application under order 41 Rule 19 of
the Code of Civil Procedure, (CPC for short), for re-admission/ restoration of RSA
No. 121/2025, which was dismissed for default vide order dated 12.10.2015.
Delay in filing this application has been condoned vide order dated 01.4.2025,
passed by this Court in I.A. Civil No. 3247/2023.
2. Office note dated 03.06.2025, indicates that notices have been served to
respondent Nos. 1(a) and 1(b), whereas, respondent No. 1(c) has expired. It is
submitted that the name of the respondent No. 1(c) has been struck off from
the array of parties in another application registered as I.A. (C) 3247/2023 vide
order dated 12.03.2025, by observing that the wife of respondent number 1(c)
has left her matrimonial home and his other surviving legal heirs are not known.
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3. Notices have been issued to respondent No. 2, but the office note dated
21.07.2025, indicates that the notice has been returned 'unserved' as
respondent No. 2 has left without information. Earlier, the office note dated
03.06.2025, indicates that respondent No. 2 could not be found as his wife had
informed that the respondent No. 2 has left her and she is unaware of his
current whereabouts, and upon further inquiry, the Gram Pradhan also informed
that he is unaware of the present address of respondent No. 2. Thereby, this
case will proceed without hearing the respondent No. 2.
4. Heard learned counsel, Mr. B. K. Das for the applicant.
5. The other respondents are not represented today.
6. It is submitted that the RSA No. 121/2005 was filed by the
appellant/applicant, on 15.10.2004, against the judgment and decree passed by
the learned Civil Judge (Senior Division) , Jorhat in T.A. No.28/2003, affirming
the judgment and decree dated 27.10.2003 passed in T.S. No. 48/1996 by the
learned Civil Judge (Junior Division) No. 1, Jorhat. This RSA was admitted by
order of this Court dated 20.03.2006.
Substantial question of law was also formulated.
7. During the course of the pendency, this case was listed in the special part-
II hearing list in the month of August, 2015 and the matter was called up on
31.08.2015. The counsel for the appellant prayed for an adjournment.
Accordingly, vide order dated 01.10.2015, the matter was adjourned.
Thereafter, the matter was listed on 12.10.2015.The counsel for the appellant
inadvertently missed the item in the cause list on 12.10.2015 and accordingly,
the counsel for the appellant failed to appear before this court. Resultantly, this
case was dismissed for non-prosecution by the order dated 12.10.2015.
8. It is submitted that the appellant has substantial interest in the case. The
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non-appearance of the counsel for the appellant is neither deliberate nor
intentional and if this case is not restored and heard on merit, the appellant
shall suffer serious prejudice and loss.
9. The counsel for the appellant has also relied on the decision of the
Hon'ble Supreme Court in Lakhi Narayan Sonowal vs The State of Assam
and Anr, reported in 2016, 14 SCC 514, wherein it has been held that:-
"5. It is true that no Court is obliged to adjourn a case because of the
difficulty of a counsel and as a matter of fact it is the solemn duty of
every court to proceed with the judicial business fixed for the day yet in
an appropriate case where no fault lies at the door of the litigant the
court should not be in a hurry to dismiss the case in default or for non-
prosecution on account of absence of his counsel. Ultimately it is the
litigant who is to suffer the consequences of such an order. In any case
the court should be considerate while dealing with an application for
recall of dismissal or ex parte order and if a justifiable cause non-
appearance of the counsel is made out such an order may be recalled
subject of course to the conditions the court may like to impose.
6. Having perused the application filed by the appellant for recall of order
dated 22-8-2007, which has been placed on record we are convinced that
it was a fit case where the Appellate Bench of the High Court should have
exercised its jurisdiction and recalled the said order dismissing the appeal
for non-prosecution."
10. Reverting back to this case, it is held that the appellant was not
represented on only one date, i.e., on 12.10.2015.
The appellant should not suffer for the conduct of the office and his engaged
counsel. Substantial question of law has already been framed and this case was
fixed for hearing. It appears that the appellant may be highly prejudiced if this
case is not restored.
11. Thereby, in the light of the decision of the Hon'ble Supreme Court in
Lakhi Narayan Sonowal (Supra), and in view of the foregoing discussions, the
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RSA No. 121/2005, is thereby restored for hearing and the appeal is readmitted
with costs of Rs. 2000/- to be paid to the respondents.
12. In terms of the above observation, this application stands disposed of.
JUDGE
Comparing Assistant
