Manipur High Court
Md. Hussimuddin vs Shri Chandra Bahadur Sunwar on 14 March, 2024
Author: Ahanthem Bimol Singh
Bench: Ahanthem Bimol Singh
JOHN Digitally signed
by JOHN TELEN
TELEN KOM
Date:
2024.03.15
KOM 13:07:55 +05'30'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
CRP (CRP Art. 227) No. 46 of 2014
Md. Hussimuddin, aged about 62 years S/o (L) Md. Nijimuddin,
resident of Mantripukhi, P.O. Mantripukhi, P.S. Heingang, Imphal
East District, Manipur. ........ Petitioner
Vs.
1. Shri Chandra Bahadur Sunwar, aged about 57 years, S/o (L) Nar
Bahadur Sunwar, resident of Mantripukhi, P.O. Mantripukhi, P.S.
Heingang, Imphal East District, Manipur r.
2. Ms. Nazima Shah @ Ibem, aged about 42 years, D/o (L) Ajij,
resident of Mantripukhi, P.O. Mantripukhi, P.S. Heingang, Imphal
East District, Manipur.
3. Shri Prasan Kumar Mukhya, aged about 42 years, S/o Chandra
Bahadur Sunwar, resident of Mantripukhi, P.O. Mantripukhi, P.S.
Heingang, Imphal East District, Manipur.
.......... Respondents
BEFORE
HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH
For the Petitioner : Mr. H. Dijen, Advocate.
For the respondents No. 1 & 2 : Mr. Ng. Premkumar. Advocate
Date of Hearing : 17.01.2024.
Date of Judgment : 14.03.2024.
JUDGMENT
(CAV)
[1] Heard Mr. H. Dijen, learned counsel appearing for the petitioner and Mr. Ng.
Premkumar, learned counsel appearing for the respondents No. 1 & 2.
None appeared for the respondent No. 3, despite service of notice.
[2] The present petition had been filed with a prayer for setting aside the
impugned order dated 17.09.2014 passed by the learned Civil Judge, Junior
Division, Imphal East, Manipur in Judicial Misc. Case No. 66 of 2008/16 of 2014
(Ref: Original Suit No. 1 of 2007).
Page 1
[3] The facts of the present case in a nutshell are that a piece of homestead
land measuring .06 acre under Patta No. 101 (part) (Old), 74/619 (New), covered
by C.S. Dag No. 236/767, situated at Village No. 8-Mantripukhi (herein after
referred to as 'suit land') was owned by the respondent No. 3 as owner and
pattadar.
[4] An agreement of sale dated 12.08.2006 was executed by the respondent
No. 3 in favour of the petitioner for transfer of the said suit land at the consideration
amount of Rs. 4,50,000/- (Rupees four lakh fifty thousand) and thereafter, the
petitioner paid a sum of Rs. 2,00,000/- (Rupees two lakh) as advance payment to
the respondent No. 3 with the agreement that the balance amount of Rs. 2,50,000/-
(Rupees two lakh fifty thousand) will be paid in the month of January, 2007. In the
said agreement of sale, the respondent No. 1, who is the father of the respondent
No. 3, also put his signature as one of the attesting witnesses
[5] When the petitioner came to know that the name of the respondent No. 1
was entered into the land record of the suit land vide Mutation order dated
29.11.2006 passed by the SDC, Imphal East, Heingang in Mutation Case No.
717/2006 and thereafter, the suit land was transferred by way of sale by the
respondent No. 1 in favour of the respondent No. 2 by executing a registered sale
deed bearing No. 79 (V) for the year 2007 dated 18.01.2007 and the name of the
respondent No. 2 had been entered in the land record of the suit land, the petitioner
filed Original Suit No. 1 of 2007 before the Civil Judge, Junior Division, Imphal East,
Manipur claiming the following reliefs:-
"(i) a decree thereby declaring that the suit land is the absolute property
of the Respondent No. 3 and that Respondent No. 1 has no right and
title over the suit land;
(ii) a decree thereby declaring that the order dated 29.11.2006 passed
in Mutation Case No. 717/2006 of the SDC, Impha East, Heingang is
illegal and void as ultra vires the provisions of the MLR and LR Act,
1961;
(iii) a decree for setting aside the sale deed being Regd. No. 79 (V) for
the year 2007 dated 18.01.2007 executed by the Respondent No. 1
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in favour of the Respondent No. 2, as executed without any saleable
right and to set aside the order dated 18.01.2007 passed in Mutation
Case No. 31 of 2007 of the SDC, Imphal East, Heingang;
(iv) a decree for specific performance of the agreement for sale in favour
of the Petitioner;
(v) a decree for possession of the suit land by evicting the Respondent
No. 2 therefrom;
(vi) costs of the suit;
(vii) such other further decree or decrees that the Ld. Court may deem fit
proper and just."
[6] As required by Order V of the Code of Civil Procedure, 1908, summons were
issued to the respondents by the Ld. Civil Judge for appearing before the Court to
answer the claims and to file written statement of their defence. The summons to
the respondent No. 1 was served on 08.02.2007 while he was in judicial custody in
connection with a criminal case and summons to the respondent No. 2 was duly
served on 07.02.2007. Summons to the respondent No. 3 could not be served in
the ordinary manner and as such, substitute service by way of publishing it in the
newspaper was made. When the respondents failed to appear before the Trial
Court, the suit was proceeded ex-parte against the respondents and the suit was
decreed in favour of the petitioner vide judgment and decree dated 07.05.2008.
Thereafter, the petitioner filed an Execution Case No. 4 of 2008 before the Trial
Court for execution of the ex-parte judgment and decree dated 07.05.2008.
[7] The respondents No. 1 & 2, thereafter, filed Judicial Misc. Case No. 66 of
2008/16 of 2014 before the Trial Court for setting aside the ex-parte judgment and
decree dated 07.05.2008 on the ground, inter-alia, that they came to know about
the existence of the judgment and decree only on 24.07.2008. The petitioner filed
his objection denying all the allegations made by the respondents No. 1 & 2 in their
application, however, the respondent No. 3 did not appear before the Trial Court
to contest the said application filed by the respondents No. 1 & 2.
[8] The case set up by the respondent No. 1 before the Trial Court in the said
application is that the respondent No. 1's father (late) Narbahadur was the owner
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of the suit land and after the death of Narbahadur, the respondent No. 3 got his
name mutated in the land record of the suit land stealthily and without giving notice
to the respondent No. 1. After knowing the wrong entry of the name of the
respondent No. 3 in the revenue record of the suit land, the respondent No. 1 and
the respondent No. 3 come to a family settlement for allowing to mutate the name
of the respondent No. 1 in the revenue record of the suit land and thereafter, the
name of the respondent No. 1 got mutated in the revenue record vide mutation
order 29.11.2006 in mutation case No. 717/SDC/I.E./HNG/2006 after cancelling the
name of the respondent No. 3. Thereafter, the respondent No. 1 sold off the suit
land to the respondent No. 2 by executing a registered sale deed and the
respondent No. 2 got her name mutated in the land records of the suit land vide
order dated 18.01.2007 passed by the SDC, Imphal East, Heingang in Mutation
Case No. 31 of 2007.
[9] The petitioner lodged a complaint at the Heingang Police Station against the
respondent No. 1 in connection with the sale of the suit land and the Heingang
Police Station registered a case being F.I.R. No. 10 (1) 2007 Heingang P.S. u/s
420/120-B 34 I.P.C. Thereafter, the respondent No. 1 was arrested by the Heingang
Police on 22.01.2007 and he was in Police and Judicial Custody from 22.01.2007 to
21.04.2007 in connection with the said case. The respondent No. 1 was released
on bail on 21.04.2007 by an order passed by the Judicial Magistrate, Imphal East.
It is the case of the respondent No. 1 that while he was in Police and Judicial
custody, he never receive any summon in connection with the Original Suit filed by
the petitioner and that he has no knowledge about the Original Suit pending before
the Trial Court and that he came to know about the existence of the ex-parte
judgment and decree only on 24.07.2008.
[10] The case set out by the respondent No. 2 in the said application is that she
was suffering from several ailments, viz., swelling below right ear and also
forgetfulness and mental depression. The respondent No. 2 got admitted in the
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Regional Institute of Medical Sciences Hospital on 22.01.2007 and operation was
performed on 01.02.2007 and thereafter she was discharged from the Hospital on
04.02.2007. The respondent No. 2 was also under the supervision of a medical
expert and a sorcery expert after believing that she was a victim of sorcery. It is
the case of the respondent No. 2 that she was not able to remember anything of
the suit as well as the summon which was alleged to have been served to her and
that she did not appear and defend the suit as she has no knowledge of the suit.
The respondent No. 2 mental condition was improved in the 2nd week of July, 2008
and came to know about the existence of the said ex-parte judgment and decree
only on 24.07.2008. It is the case of both the respondents No. 1 & 2 that the
summon was not duly served to both of them for hearing of the suit and that there
are sufficient cause for not appearing before the Trial Court when the case was
called on for hearing.
[11] The Trial Court after hearing both the parties came to the conclusion that
summons to the respondents No. 1 & 2 were duly served on 08.02.2007 and
07.02.2007 respectively, however, the Trial Court set aside the ex-parte judgment
and decree dated 07.05.2008 on the ground, inter-alia, that the respondents No. 1
& 2 were prevented from appearing before the Trial Court when the suit was called
for hearing by passing the order dated 17.09.2014, impugned herein. Hence, the
present petition.
[12] Mr. H. Dijen, learned advocate appearing for the petitioner submitted that
under order IX Rule 13 of the CPC, it is provided that an ex-parte decree can be
set aside only on 2 (two) grounds, i.e., when the Court is satisfied that the summon
was not duly served or when the Court is satisfied that there was sufficient cause
which prevented the defendant from appearing before it when the suit was called
on for appearing. It has been submitted that in the present case, there is clear-cut
finding given by the Trial Court in the impugned order that summon was duly
served upon respondent No. 1 on 08.02.2007 and summon was duly served to the
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respondent No. 2 on 07.02.2007 and that summon on the respondent No. 3 was
served by way of substitute service by publishing the notice in the newspaper. The
learned counsel submitted that this finding given by the Trial Court is supported by
materials available on record. The learned counsel further submitted that the Trial
Court set aside the ex-parte decree only on the ground that the respondents were
prevented from appearing when the suit was called for hearing.
[13] With regard to the ground given by the Trial Court for setting aside the ex-
parte decree, it has been submitted by the learned counsel appearing for the
petitioner that in the application filed by the respondents No. 1 & 2 before the Trial
Court for setting aside the ex-parte judgment and decree, it has been clearly stated
that the respondent No. 1 was arrested by the Heingang Police on 22.01.2007 in
connection with a criminal case and he was kept in Police and Judicial custody from
22.01.2007 till 21.04.2007, on which date the respondent No. 1 was released on
bail and that the respondent No. 2 was admitted at the Regional Institute of Medical
Sciences Hospital on 22.01.2007 and after performing an operation on 01.02.2007,
she was discharged from the Hospital on 04.02.2007. The learned counsel
submitted that the ex-parte judgment and decree was passed by the Trial Court on
05.07.2008 after more than 1 (one) year from the date the respondent No. 1 was
released from police and Judicial custody and after the discharge of the respondent
No. 2 from the Hospital and that the respondents No. 1 & 2 never gave any
explanation or show any sufficient cause which prevented them from appearing
before the Trial Court and to contest the suit during the aforesaid period of more
than 1 (one) year. The learned counsel vehemently submitted that the Trial Court
never considered this crucial point and wrongly arrived at a conclusion that the
respondents No. 1 & 2 were prevented from appearing when the suit was called
for hearing, without any supporting material and set aside the ex-parte judgment
and decree, thereby causing a grave miscarriage of justice. The learned counsel
Page 6
accordingly submitted that the impugned order is not sustainable in the eyes of law
and the same is liable to be set aside.
[14] Mr. Ng. Premkumar, learned counsel appearing for the respondents No. 1 &
2 submitted that against the impugned order passed under Order IX Rule 13 of the
CPC, a revision lies as provided under section 115 of the CPC. As there is an
effective and alternative statutory remedy for filing a revision petition against the
impugned order, the present petition filed under article 227 of the constitution of
India is not maintainable. It has also been submitted that the words "any sufficient
cause from appearing when the suit was called on for hearing" under Order IX rule
13 of the CPC must be liberally construed and that it is not justified in taking hyper
technical view while considering an application under Order IX Rule 13 for setting
aside an ex-parte decree. The learned counsel also reiterated the stand taken by
the respondents No. 1 & 2 in their applications filed under Order IX Rule 13, i.e.,
Judl. Misc. Case No. 66 of 2008/16 of 2014.
In support of his contention about the maintainability of the present petition,
the learned counsel cited the following case laws:-
(i) "Miss Maneck Gustedji Burjarji vs. Sarafazali Nawabali
Mirza" reported in (1977) 1 SCC 227 wherein, it has been held, inter-alia
by the Hon'ble Apex Court at Paragraph 6 of the judgment that the High
Court does not ordinarily, in exercise of its discretion, entertained an
application under article 227 of the constitution where an adequate
alternative legal remedy of filing an appeal is available.
(ii) "Mohamed Ali vs. V. Jaya and Others" reported in (2022) 10 SCC
477 wherein, it has been held as under:-
"7.1. Applying the law laid down by this Court in the aforesaid
decision to the facts of the case on hand, the High Court ought
not to have entertained the revision petition under Article 227
of the Constitution of India against the ex-parte judgment and
decree passed by the learned Trial Court in view of a specific
remedy of appeal as provided under the Code of Civil
Page 7
Procedure itself. Therefore, the High Court has committed a
grave error in entertaining the revision petition under Article
227 challenging the ex-parte judgment and decree passed by
the learned Trial Court and in quashing and setting aside the
same in exercise of powers under Article 227 of the
Constitution of India."
(iii) "Nimai Kar vs. Bishnupada Saha and Another" reported in
AIR 2011 Gauhati 1 wherein, a single Bench of the High Court held that
when there is a specific provision in the CPC prescribing a specific mode
for preferring either revision or appeal, an application under article 227 of
the constitution is not maintainable.
[15] The 2 (two) judgments of the Apex Court, in the case of "Miss Maneck
Gustedji Burjarji" (Supra) and "Mohamed Ali" (Supra) cited by the learned
counsel for the petitioner, have been passed in the particular facts and
circumstances of the cases and the Hon'ble Apex Court held that when there is a
statutory alternative remedy by way of an appeal is available, the High court ought
not to have entertained a revision application under article 227 of the constitution
of India.
On careful perusal of the said 2 (two) judgments, this Court is of the
considered view that in the said judgments, the Hon'ble Apex Court did not lay
down any principle of law having universal application that when a revision under
section 115 of the CPC is available, an application under article 227 of the
constitution is not maintainable. Accordingly, this Court is of the considered view
that the aforesaid 2 (two) judgments of the Apex Court does not support the
contention raised by the learned counsel appearing for the petitioner regarding
maintainability of the present petition.
[16] In the case of "Nimai Kar" (Supra) the learned Single Judge held in
paragraph 28 of the Judgment as under:-
"28. From the aforesaid findings of the Apex Court, it can be easily said
that the power u/s 115 of the CPC and the power under Article 227
Page 8
of the Constitution is quite distinct and different and not
interchangeable. Therefore, when there is a remedy available u/s 115
Code of Civil Procedure, then the Court should not exercise its power
under Article 227 of the Constitution unless it is an exceptional case
where it is so necessary to interfere with the order of the Court
subordinate to it to prevent from miscarriage of justice. In Koyilerian
Janaki and Ors. v. Rent Controller (Munsif) Cannore and Ors., (2000)
9 SCC 406 the Apex Court in para-4 of the said report held that....
"The power under Article 227 is exercisable where it is found by the
High Court that due to a certain grave error an injustice has been
caused to a party."
[17] On perusal of the above quoted paragraph 28 of the judgment, it is cleared
that the learned Single Judge also acknowledged and held that where it is so
necessary to interfere with the order of the Court subordinate to it, the High court
can exercise its power under article 227 of the constitution to prevent miscarriage
of justice despite availability of an alternative remedy of revision under section 115
of the CPC. In view of the above, this Court is of the considered view that the
judgment relied on by the learned counsel for the petitioner is of no help to the
petitioner in view of the peculiar facts and circumstances of the present case.
[18] In the case of "Municipal Corporation of Delhi vs. R.P. Khaitan and
Ors." reported in MANU/SC/1760/1999, a Bench of 3 (three) Judges of the Hon'ble
Apex Court held as under:-
"2. The right to approach the High Court under Articles 226 or 227 of the
Constitution or both is within the ambit of the right to avail
constitutional remedies enshrined under Article 32 of the
Constitution. These are styled as extraordinary remedies because
they are not part of the ordinary procedure prescribed for adjudication
of dispute in the ordinary Courts of Law. The remedy of revision
under Section 115 of the Code of Civil Procedure whereby the High
Court is empowered to call for the record of any case which has been
decided by any Court subordinate to it and in which no appeal lies
thereto is an ordinary one empowering it to pass appropriate orders
when the subordinate Court appears to have exercised a jurisdiction
not vested in it by law or to have failed to exercise its jurisdiction
illegally or with material irregularity. This remedy presupposes the
cause having been in a Court subordinate to such High Court.
"3. In these set of appeals the view expressed by the Delhi High Court
has been questioned whereby petitions under Article 226 of the
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Constitution were held by it to be not maintainable in the presence of
the regular remedy available under Section 115, C.P.C. towards
challenging the orders of the District Judge, Delhi passed
under Section 169(1) of the Delhi Municipal Corporation Act. Few of
these appeals are by the Municipal Corporation of Delhi and the
remaining are by the tax-prayers. We treat them all as identical.
"3.1.It is true that the extraordinary remedies provided under Articles
226 and 227 of the Constitution are dependent upon the High Court
willing to interfere in a matter for which a large measure of discretion
rests with it. Its power is so wide so as to envelop not only all aspects
of the matter but orders can be passed of such nature as the High
Court thinks fit. The jurisdiction as such is not curtailed to meet
questions of parameters. On the other hand, the regular remedy
under Section 115, C.P.C. is hedged by the language of the provision.
Only errors of jurisdiction and material irregularities in the exercise of
jurisdiction bring about a cause within the ambit of that provision. All
the same it is worthy of notice that the Forum for the aforementioned
three remedies ordinary as well as extraordinary is with the High
Court itself. We see no reason then as to why the frame of the cause
be determinative. It is for the litigant to choose the remedy and it is
for the High Court to grant or deny relief thereon having regard to
the facts and circumstances of each case. We may, however, add that
the existence of an alternative remedy can by itself be a ground for
the High Court refusing to exercise jurisdiction but it is not as if
jurisdiction of the High Court is ousted by such existence. The High
Court's dependence on Visheh Kumar v. Shanti Prasad
MANU/SC/0052/1980: [1980]3SCR32 in refusing to convert a petition
under Section 115, C.P.C. to be one under Article 227 of the
Constitution may have been justified on the facts of that case, but the
same cannot be treated as a precedent to oust jurisdiction of the High
Court vested in it under the law. The High Court certainly is entitled
to convert any proceeding instituted before it in one manner to be
that of another provided a proper cause has been made out and in
the interest of justice.
"4. For the foregoing reasons, we allow these appeals, set aside the
impugned orders of the High Court and remit the matters back to it
to be placed on its file for further consideration on merits in
accordance with law."
[19] In the case of "Raj Shri Agarwal alias Ram Shri Agarwal and Another
vs. Sudheer Mohan and Others" reported in 2022 SCC Online SC 1775, the
Hon'ble Apex Court held as under:-
"2. Feeling aggrieved and dissatisfied with the impugned judgment and
order dated 25.04.2022 passed by the High Court of Judicature at
Page 10
Allahabad dismissing the writ petition preferred by the appellants, filed
under Article 227 of the Constitution of India, challenging the order
passed by the learned trial Court dismissing the application under
Order 6 Rule 17 CPC, the original revisionist has preferred the present
Appeal.
"3. By the impugned judgment and order, the High Court has dismissed
the writ petition, under Article 227 of the Constitution of India,
observing that the writ petition, under Article 227 of the Constitution
of India, is not maintainable as remedy by way of revision under
Section 115 CPC is available to the appellants/plaintiffs. As observed
by this Court in catena of decisions and even in the decisions
considered by the High Court, the view taken by this Court is that
where there is availability of remedy under Section 115 CPC normally
"the petition under Article 227 of the Constitution of India would not
lie". That does not mean that writ petition, under Article 227 of the
Constitution of India, shall not be maintainable at all. There is a
difference and distinction between the entertainability and
maintainability. The remedy under Article 227 of the Constitution of
India available is a constitutional remedy under the Constitution of
India which cannot be taken away. In a given case the Court may not
exercise the power under Article 227 of the Constitution of India if the
Court is of the opinion that the aggrieved party has another efficacious
remedy available under the CPC. However, to say that the writ petition
under Article 227 of the Constitution of India shall not be maintainable
at all is not tenable
"4. Even otherwise, it is required to be noted that, even according to the
High Court, the remedy available to the original plaintiffs was under
Section 115 of the CPC. In that view of the matter, the High Court
ought to have converted the writ petition under Article 227 of the
Constitution of India into revision petition under Section 115 CPC and
ought to have considered the same in accordance with law and on its
own merits, rather than permitting the writ petitioners to file a fresh
revision application under Section 115 of the CPC. It would
unnecessary increase the burden of the Court. To avoid further
multiplicity, even the High Court ought to have converted the writ
petition under Article 227 of the Constitution into revision under
Section 115 of the CPC.
"5. In view of the above and for the reasons stated above, the present
Appeal succeeds. The impugned judgment and order passed by the
High Court dismissing the writ petition, under Article 227 of the
Constitution of India, on the ground that the same shall not be
maintainable is hereby quashed and set aside. The matter is remanded
to the High Court to consider the writ petition in accordance with law
and on merits for which we have not expressed anything on merits in
favour of either parties."
Page 11
[20] In view of the facts and circumstances of the present case and the principle
of law laid down by the Hon'ble Apex Court in the case of "Municipal Corporation
of Delhi" (Supra) and "Raj Shri Agarwal alias Ram Shri Agarwal" (Supra),
this Court cannot agree with the submission advanced by the learned counsel
appearing for the respondents that the present petition is not maintainable and
accordingly, this Court is not inclined to dismiss the present petition as not
maintainable.
[21] In the present case summons to the respondent No. 1 were duly served on
08.02.2007 while he was in Judicial Custody and summons to the respondent No.
2 were duly served on 07.02.2007 after her discharged from hospital on
04.02.2007. Since summons have been duly served upon the said respondents No.
1 & 2, it shall be deemed that they have knowledge about the civil suit filed by the
petitioner. Despite having knowledge about the said civil suit filed by the petitioner
in the Court of Civil Judge, Junior Division, Imphal East, the respondents No. 1 & 2
did not appear before the Trial Court to contest the said civil suit.
For the period of more than 1 (one) year, w.e.f. 21.04.2007 (when the
respondent No. 1 was released from Judicial Custody) and 04.02.2007 (when the
respondent No. 2 was discharged from the Hospital) till the date of passing the ex-
parte judgment and decree on 07.05.2008, no explanation or sufficient cause had
been given by the said respondents No. 1 & 2 which prevented them from
appearing before the Trial Court to contest the suit.
[22] In my considered view, for setting aside an ex-parte decree under Order IX
Rule 13, the Trial Court should first satisfy itself that there were sufficient cause
which prevented the respondents No. 1 & 2 from appearing before it when the suit
was called on for hearing. However, in the present case, the Trial Court completely
failed to consider and to take into account the fact that the respondents No. 1 & 2
did not give any explanation or show any sufficient cause which prevented them
from appearing before the Trial Court during the aforesaid period of more than 1
Page 12
(one) year and passed the impugned order setting aside the ex-parte judgment
and decree thereby causing a grave miscarriage of justice to the petitioner.
[23] In the case of "M/s. Garment Craft Vs. Prakash Chand Goel" reported
in AIR 2022 SC 422, it has been held, inter-alia by the Hon'ble Supreme Court at
paragraph 18 of its judgment that the jurisdiction exercised by the High Court under
Article 227 of the constitution is in the nature of correctional jurisdiction to set right
grave dereliction of duty or flagrant abuse, violation of fundamental principles of
law or justice and that the power under Article 227 is exercised sparingly in
appropriate cases, like when there is no evidence at all to justify, or the finding is
so perverse that no reasonable person can possibly come to such a conclusion that
the Court or Tribunal has come to. It has also been held that it is axiomatic that
such discretionary relief must be exercised to ensure that there is no miscarriage
of justice.
[24] On careful perusal of the impugned order passed by the Trial Court and on
careful examination of the materials available on record, this Court come to the
conclusion that there was no evidence or materials available on record to support
the conclusion arrived at by the Trial Court that the respondents No. 1 & 2 were
prevented from appearing when the suit was called for hearing and as such, the
impugned order is not sustainable.
Taking into account the totality of the facts and circumstances of the present
case and keeping in view the principle of law laid down by the Hon'ble Apex Court
referred to hereinabove, this Court is satisfied that it is a fit case to exercise the
power under article 227 of the constitution of India and accordingly, this Court has
no hesitation to quash and set aside the impugned order dated 17.09.2014 passed
by the Civil Judge, Junior Division, Imphal East in Judl. Misc. Case No. 66 of 2008/16
of 2014 (Reference O.S. No. 1 of 2007) to avoid any miscarriage of justice.
Accordingly, the present petition is allowed by quashing and setting aside the said
Page 13
impugned order dated 17.09.2014. The present petition is accordingly disposed of
without any order as to costs.
JUDGE
Sapana
FR/NFR
Page 14
