Allowed

Manoj Dev Choudhury @ Majoj Kr. Choudhury v. Smt. Manika Choudhury Hussain

Gauhati HC12 Sept 2022CRP(IO)/147/2022

Case brief

AI extract

What is this about?

Application under Article 226 challenging the rejection of an adjournment application and subsequent debarment from filing a written statement due to elapsed 90-day period. Court granted permission to file the statement conditionally, subject to depositing costs.

What did the court decide?

Petitioner permitted to file written statement by 30/09/2022 subject to deposit of Rs. 25,000/- as cost to the Trial Court.

Manoj Dev Choudhury @ Majoj Kr. Choudhury Vs Smt… — Execution and Attachment | Gauhati HC (2022)

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Page No.# 1/3

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GAHC010136622022

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

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Case No. : CRP(IO)/147/2022

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MANOJ DEV CHOUDHURY @ MAJOJ KR. CHOUDHURY S/O- LATE ROHINI KR. DEV CHOUDHURY, R/O- HOUSE NO. 4, NANDANPUR SRIRAM PATH, RGB ROAD, GUWAHATI-05, DIST.- KAMRUP(METRO), ASSAM.

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VERSUS

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SMT. MANIKA CHOUDHURY HUSSAIN D/O- LATE ROHINI KR. DEV CHOUDHURY, W/O- IMDADUL HUSSAIN, PERMANENT R/O- S.S. ROAD, LAKHTOKIA, GUWAHATI- 781001, DIST.KAMRUP(METRO), ASSAM AND PRESENTLY RESIDING AT C/O- MRS. RANJU KALITA, AEC HOSPITAL, BACKSIDE OF L.P. SCHOOL JALUKBARI, GUWAHATI- 781014 DIST.-KAMRUP(METRO), ASSAM.

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Advocate for the Petitioner : MR. S A AHMED

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Advocate for the Respondent : MR. N BARMAN

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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ORDER

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Date : 12/09/2022

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Heard Mr. S.A. Ahmed, the learned appearing on behalf of the petitioner and

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Page No.# 2/3

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Mr. N. Barman, the learned counsel appearing on behalf of the for the respondent.

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This is an application under Article 227 of the Constitution challenging the order dated 27/5/2022, whereby the petitioner’s application seeking adjournment was rejected thereby debarring the petitioner/the defendant from filing the written statement.

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The learned counsel for the petitioner submits that on account of certain unavoidable circumstances, the petitioner could not file the written statement. However, if a day or two would have been granted by the Trial Court, the petitioner could have very well filed the written statement. But the Court below did not consider the same and instead on the ground that 90 days have elapsed, have debarred the petitioner from filing the written statement. The learned counsel for the petitioner further submitted that the right to defend is a substantive right and on account of the procedural law, the said substantive right cannot be taken away. The learned counsel further submitted that the petitioner would file the written statement without fail on such date as may be fixed by this Court.

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I have also heard the learned counsel for the Respondent and perused the materials on record.

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It appears there from that the Court below had passed an order of debarring the defendant Nos. 1 & 2 to file the written statement on the ground that the statutory period of 90 days have elapsed.

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Taking into consideration the submission made by the learned counsel for the petitioner that the written statement was ready but on account of unavoidable circumstances, the written statement could not be filed on that day,

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Page No.# 3/3

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this Court is of the opinion that one more additional opportunity may be granted to the petitioner/the defendant no. 2 taking into consideration that debarring the petitioner from filing the written statement would be shutting out the defence of the petitioner which is a valuable right. However, it is also relevant to take note of that the petitioner having not filed the written statement within time, have resulted in a right upon the plaintiff. This Court is of the opinion that same can be compensated by imposing costs.

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Considering the above, this Court permits the petitioner to file the written statement on 30/9/2022 without fail subject to deposit of Rs. 25,000/- before the Court below as cost.

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In view of the above, the interim order dated 25/7/2022 stands vacated and the parties are directed to appear before the Trial court on 30/9/2022.

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The deposit of Rs. 25,000/- as cost by the defendant No. 2 shall be a condition precedent for acceptance of the written statement. The plaintiff shall be at liberty to withdraw the said amount with the leave of the Court.

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Failure to file the written statement on the date so fixed hereinabove and to deposit the cost, as directed, the order dated 27/5/2022 shall stand revived.

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JUDGE

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Comparing Assistant

Manoj Dev Choudhury @ Majoj Kr. Choudhury v. Smt. Manika Choudhury Hussain

Case brief

What is this about?

What did the court decide?

Manoj Dev Choudhury @ Majoj Kr. Choudhury v. Smt. Manika Choudhury Hussain

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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