Partly allowed

Sri Subala Barman and Anr. v. Rajendra Baishya and 5 Ors.

Gauhati HC4 Sept 2019CRP(I/O)/199/2018

Case brief

AI extract

What is this about?

High Court disposed of a revision petition seeking recall of an ex-parte order. It directed the petitioners to pay Rs.5000 cost to the plaintiff, after which the order should be recalled and the case proceeded with. Parties must appear on 25.09.2019.

What did the court decide?

Directed that upon payment of Rs.5000 cost to the plaintiff, the learned Munsiff shall recall the order of ex-parte proceeding and proceed as per law.

Sri Subala Barman and Anr. Vs Rajendra… — Civil Procedure and Limitation | Gauhati HC (2019)

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GAHC010130032018

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

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Case No. : CRP(I/O) 199/2018

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1:SRI SUBALA BARMAN AND ANR.

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W/O- SRI BALINDRA BARMAN, R/O- VILL- KHAR KALDI, MOUZA- UTTAR BARKHETRI, PS MUKALMUA, DIST- NALBARI, ASSAM

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2: SRI BALINDRA BARMAN S/O- LT SUNANDA BARMAN R/O- VILL- KHAR KALDI MOUZA- UTTAR BARKHETRI PS MUKALMUA DIST- NALBARI ASSA

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VERSUS

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1:RAJENDRA BAISHYA AND 5 ORS.

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S/O- LT DUKHORAM BAISHAYA, R/O- VILL- KALDI, MOUZA- UTTAR BARKHETRI, PS MUKALMUA, DIST- NALBARI, ASSAM, PIN-781138

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2:SRI BIMALA BAISHYA D/O- LT BALEK BAISHYA W/O- BIPUL BAISHYA R/O- VILL- KALDI MOUZA- UTTAR BARKHETRI PS MUKALMUA DIST- NALBARI ASSAM PIN-781138

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3:SRI MAIKA @ MAKANI BAISHYA TALUKDAR D/O- LT BALEK BAISHYA W/O- DIPAK TALUKDAR R/O- VILL- KALDI MOUZA- UTTAR BARKHETRI

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Page No.# 2/4

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PS MUKALMUA DIST- NALBARI ASSAM PIN-781138

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4:SRI CHANDAN BAISHYA S/O- LT GOPESWAR @ GAPORAM BAISHYA R/O- VILL- KALDI MOUZA- UTTAR BARKHETRI PS MUKALMUA DIST- NALBARI ASSAM PIN-781138

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5:SRI GIRIBALA BAISHYA W/O- LT GOPESWAR @ GAPORAM BAISHYA R/O- VILL- KALDI MOUZA- UTTAR BARKHETRI PS MUKALMUA DIST- NALBARI ASSAM PIN-781138

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6:SRI KARNADHAR BAISHYA S/O- LT NARENDRA BAISHYA R/O- VILL- KALDI MOUZA- UTTAR BARKHETRI PS MUKALMUA DIST- NALBARI ASSAM PIN-78113

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Advocate for the Petitioner : MR D BARMAN

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Advocate for the Respondent : DR. P K GOSWAMI (R1,R2, R3,R4,R5,R6)

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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Date : 04-09-2019

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JUDGMENT & ORDER (Oral)

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Heard Mr. D Barman, learned counsel for the petitioners. Also heard Dr. PK Goswami, learned counsel for the respondents.

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The respondents herein had instituted the T.S.No.83/2017 in the Court of the learned Munsiff No.1 at Nalbari claiming right, title and interest over the suit land. By the order of 24.10.2017, the petitioners/defendants were directed to submit their written statement within the mandatory period of 90 days.

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On the next date i.e.16.11.2017, the defendants prayed for an adjournment stating that as they were unable to collect certain documents the written statement could not be submitted. Again on the next date fixed which was after the expiry of the mandatory period of 90 days, the defendants/petitioners remained absent without steps.

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In the circumstances, an ex-parte hearing was ordered against the defendants/petitioners against which they preferred a petition on 03.01.2018 for vacating the order against ex-parte proceeding and further to allow them to submit the written statement. In the petition for vacating the order for ex-parte hearing, the defendants/petitioners submitted certain medical documents showing that he was on treatment under a Doctor in the Mukalmua, FRU. In the circumstances, by the order dated 24.05.2018, the learned Munsiff No.1 Nalbari rejected the petition for recalling the order for exparte proceeding on the ground that the defendant had failed to show any exceptional ground for which they could not file their written statement. If the defendant had submitted a petition along with certain medical documents it is imperative for the Court to look into it and arrive at its satisfaction whether the defendant was actually prevented from earlier appearing in the Court. But without arriving at any such satisfaction, the learned Court had accepted that the defendant had failed to make out any exceptional ground for recalling the order of the ex-parte proceeding.

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We take note of that against the order dated 24.05.2018, the present revision petition has been preferred and by the earlier order dated 18.07.2018 further proceeding in T.S Case No.83/2017 had been stayed.

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In the circumstances, we are of the view that interest of justice would be met, if the defendant

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pays a cost of Rs.5000/- to the plaintiff and upon payment of such cost, the learned Munsiff No.1 shall recall the earlier order for ex-parte proceeding against the defendant and proceed in the matter as per law.

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We have passed this order keeping in mind that as because of the stay order the matter had already been delayed and if it is again remanded back to the learned Munsiff No.1 for an adjudication as to whether the medical document submitted by the defendant are acceptable or not, a further delay would be caused.

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Accordingly, parties to appear before the learned Munsiff No.1, Nalbari on 25.09.2019.

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In terms of the above, this revision petition stands disposed of.

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JUDGE

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Comparing Assistant

Sri Subala Barman and Anr. v. Rajendra Baishya and 5 Ors.

Case brief

What is this about?

What did the court decide?

Sri Subala Barman and Anr. v. Rajendra Baishya and 5 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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