Anuwaruz Zaman and Anr v. On the Death of Habej Ali, His Legal Heirs Fulesa Khatun and 4 Ors

ORDER

21.06.2024 Heard Shri MK Choudhury, learned counsel for the petitioners. Also heard Shri P. Kataki, learned counsel for the respondents.

¶2Considering the subject matter, this revision petition is taken up for final disposal at the admission stage.

¶3The petitioners are the defendants in Title Suit No. 82/2023 which was filed for declaration of right, title and interest, confirmation of possession, recovery of khas possession and for permanent injunction.

¶4The petitioners as defendants had entered appearance and the date for filing written statement was fixed on 26.05.2023 followed by another date Page No.# 3/5

20.07.2023. On the said date, however due to certain wrong noting of dates, the learned counsel for the petitioners did not appear and the matter was decided to be proceeded ex-parte against the petitioners and the next date was fixed for ex-parte evidence on 14.09.2023. The petitioners had accordingly filed an application for setting aside the order to proceed ex-parte.

¶5Vide the impugned order dated 05.02.2024, the aforesaid application has been rejected and the next date was posted for ex-parte evidence of the plaintiff.

¶6Shri Choudhury, learned counsel for the petitioners has submitted that though, as a matter of fact, there was non-appearance of the counsel of the petitioners on 20.07.2023, there were genuine reasons and in any case, on the said date, the extended period of filing written statement was yet to be over. He accordingly submits that the decision to proceed ex-parte was not in the interest of justice as the petitioners / defendants were deprived of their valuable right to defend and contest the suit. He also submits that all these grounds were elucidated in the petition filed for vacating ex-parte and by taking a hyper technical approach, the impugned order has been passed, dismissing the said application.

¶7Shri Kataki, learned counsel for the respondents has however, by referring to the impugned order dated 05.02.2024 submitted that the application for vacating the ex-parte was filed under Order IX Rule 13 of the CPC which does not provide for such application to be filed by a defendant during the pendency of the suit. He otherwise submits that sufficient time was granted to the defendants and in the said period, the defendants had failed to submit the written statement. Page No.# 4/5

¶8This Court has noticed that while filing the application for vacating the order to proceed ex-parte, the provision of the Code of Civil Procedure which has been quoted is Order IX Rule 13.

¶9It is a settled position of law that quoting of a wrong provision of law or not quoting any provision of law shall not be a reason to discard an application if the said application substantively meets the requirement of law vis-a-vis the relief sought for.

¶10This Court has also noticed that though on 20.07.2023, there was default on the part of the counsel in appearing, certain reasons have been cited regarding wrong noting of dates, Shri Choudhury, learned counsel for the petitioners has also strenuously contended that recourse to proceed ex-parte on the first date, that too before expiry of the extended period of limitation to file written statement would cause immense hardships and prejudice to his clients.

¶11The rival submissions have been considered.

¶12The decision to proceed ex-parte on 20.07.2023 was undoubtedly within the extended period available for filing written statement. Though a written statement is required to be filed within the prescribed period of limitation of 30 days, the same can be extended up to 90 days and on 20.07.2023, only 72 days had expired from the date of receipt of service of notice.

¶13Considering all the aforesaid aspects, this Court is of the considered opinion that interest of justice would call for allowing the petitioners to file their written statement in the concerned title suit. Accordingly, the impugned order dated 05.02.2024 is set aside and the petitioners / defendants are allowed to file their written statement, which however has to be done within the next date fixed before the Trial Court, which is said to be fixed on 11.07.2024. Page No.# 5/5

¶14The petitioners are however, required to pay cost of Rs.5000/- (Rupees Five Thousand) to the plaintiffs as a condition precedent.

¶15The Civil Revision Petition is accordingly allowed. JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010051942024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCRP/34/2024o ANUWARUZoZAMANoANDoANRo S/O-oLATEoMOMTAZoUDDIN,oVILL.-oBAGURIGURI,oP.O.oANDoP.S.oJURIA,o DIST.oNAGAON,oASSAM,oPIN-o782103. 2:oNURULoHASAN oS/O-oLATEoMOMTAZoUDDIN oVILL.-oBAGURIGURI oP.O.oANDoP.S.oJURIA oDIST.oNAGAON oASSAM oPIN-o782103o VERSUSo ONoTHEoDEATHoOFoHABEJoALI,oHISoLEGALoHEIRSoFULESAoKHATUNoANDo4o ORS.o D/O-oLATEoHABEJoALI,oR/O-oVILL.-oBAGURIGURI,oP.O.oANDoP.S.oJURIA,oDIST. NAGAON,oASSAM,oPIN-o782103. 2:HALIMAoKHATUN oD/O-oLATEoHABEJoALI oR/O-oVILL.-oBAGURIGURI oP.O.oANDoP.S.oJURIA oDIST.oNAGAON oASSAM oPIN-o782103. 3:ONoTHEoDEATHoOFoYESINoALI oHISoLEGALoHEIRSoJOMILAoKHATUN oW/O-oLATEoYESINoALI oR/O-oVILL.-oBAGURIGURI oP.O.oANDoP.S.oJURIA oDIST.oNAGAON oASSAM Page No.# 2/5 PIN- 782103. 4:INSAN ALI S/O.- LATE ABED ALI R/O- VILL.- BAGURIGURI P.O. AND P.S. JURIA DIST. NAGAON ASSAM PIN- 782103. 5:NUR MOHAMMAD S/O.- LATE ABED ALI R/O- VILL.- BAGURIGURI P.O. AND P.S. JURIA DIST. NAGAON ASSAM PIN- 782103 Advocate for the Petitioner : MD. M H CHOUDHURY Advocate for the Respondent : MR M HALOI BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI