Mridula Kalita and Anr v. Champa Ram Deka and 3 Ors

O R D E R

22.04.2024

This is an application under Section 115 of the Code of Civil Procedure, 1908 (for short, 'the Code') challenging the order dated

12.12.2023 in Misc. (J) Case No.07/2023.

¶2From a perusal of the materials on record, it reveals that the order dated 12.12.2023 passed in Misc. (J) Case No.07/2023 is an order passed in an application for restoration of the suit which was dismissed for default vide an order dated 07.03.2022 in Title Suit No.29/2019.

¶3This Court has duly perused the order dated 07.03.2022 wherein it is seen that the suit was dismissed when the suit was at the stage of hearing wherein the plaintiffs had failed to appear whereas the defendants Page No.# 3/3 had appeared. Accordingly, the said order would come within the ambit of the Order IX Rule 8 of the Code. Consequently, the application which ought to have been filed should have been an application under Order IX Rule 9 of the Code. However, inadvertently the application was filed under Order IX Rule 4 of the Code.

¶4Be that as it may, it is well settled principle of law that wrong quoting of a Section is not material for deciding the said application. Accordingly, the said application which was filed under Order IX Rule 4 of the Code has to be construed to be an application under Order IX Rule 9 of the Code. The consequential effect of dismissal of the said application under Order IX Rule 9, is an order which is appealable under Section 104 read with Order XLIII Rule 1 (C) of the Code.

¶5Taking into account that the said order being appealable, and that too, before the Court of the learned District Judge at Darrang, the instant proceedings under Section 115 of the Code cannot be entertained.

¶6Accordingly, the instant petition therefore stands dismissed.

¶7Be that as it may, the dismissal of the instant application shall not preclude the petitioner herein to prefer an Appeal in terms with Section 104 read with Order XLIII Rule 1 (C) of the Code against the order dated

12.12.2023 passed in Misc. (J) Case No.07/2023.

JUDGE Comparing Assistant

PageoNo.#o1/3 GAHC010051382024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCRP/44/2024o MRIDULAoKALITAoANDoANRo D/O-oNARESWARoKALITA,o W/O-oLATEoLALIToCHANDRAoDEKAo VILL.oGERIMARYoCHAPORIo(BIDYAoNAGAR),o P.O.oANDoP.S.-oMANGALDAI,o DIST.-oDARRANG,oASSAM,oPIN-o784125. 2:oDIKSHITAoDEKA oD/O-oLATEoLALIToCHANDRAoDEKAo (oBEINGoMINORoREPRESENTEDoBYoHERoMOTHER/oNATURALoGUARDIAN oPETITIONERoNO.o1)o VILL.oGERIMARYoCHAPORIo(BIDYAoNAGAR)o P.O.oANDoP.S.-oMANGALDAIo DIST.-oDARRANG oASSAM oPIN-o784125o VERSUSo CHAMPAoRAMoDEKAoANDo3oORSo S/O-oLATEoBASURAMoDEKAo VILL.-oBARPATHAR,o P.O.oANDoP.S.-oSIPAJHAR,o DIST.-oDARRANG,oASSAM,oPIN-o784145. 2:THANGESWARIoDEKA oW/O-oSRIoCHAMPAoRAMoDEKAo VILL.-oBARPATHARo P.O.oANDoP.S.-oSIPAJHARo DIST.-oDARRANG oASSAM oPIN-o784145. 3:THEoBRANCHoMANAGER Page No.# 2/3 SBI LIFE INSURANCE CO. LT.D OF MANGALDAI BRANCH P.O. AND P.S.- MANGALDAI DIST- DARRANG ASSAM PIN- 784125. 4:THE BRANCH MANAGER LIFE INSURANCE CORPORATION OF INDIA (LICI) MANGALDAI BRANCH P.O. AND P.S.- MANGALDAI DIST- DARRANG ASSAM PIN- 784125 For the petitioner (s) : Mr. M. Ahmed, Advocate For the respondent (s) : None appears BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH