Bhonmai Borah Vs Maina Das Borah and Anr.

Heard Mr. K. R. Patgiri, the learned counsel appearing on behalf of the petitioner and Ms. S. G. Baruah, the learned counsel appearing on behalf of the respondents.

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The petitioner has approached this Court challenging an order dated 23.08.2022 passed in Petition No.240/2022 arising out of Title Suit No.18/2020 by the Court of the learned Munsiff No.2, North Lakhimpur whereby the application under Order IX Rule 7 of the Code of Civil Procedure, 1908 (for short ‘the Code’) for vacating the ex-parte order was rejected.

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Mr. K. R. Patgiri, the learned counsel for the petitioner submitted that vide order dated 08.10.2021, the suit was proceeded ex-parte against the petitioner who was the defendant No.1. He submitted that the learned Trial Court did not take into consideration that the petitioner was an old aged lady and had to undergone treatment for her knee and head injury and medical certificates were also enclosed therewith. Mr. K. R. Patgiri, the learned counsel appearing on behalf of the petitioner further submitted that a perusal of Order IX Rule 7 of the Code would show that what cause was required to be shown was a good cause and not a sufficient cause in terms with Order IX Rule 13 of the Code. He therefore submitted that the learned

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Trial Court erred in exercise of its jurisdiction in rejecting the application under Order IX Rule 7 of the Code. Additionally, the learned counsel submitted that the written statement of the petitioner is ready and can be filed on such date as this Court may direct.

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Per contra, Ms. S. G. Baruah, the learned counsel appearing on behalf of the respondents submitted that this is a case where the petitioner herein has duly received summons and thereupon had appeared on four occasions and thereafter did not appear. The learned counsel submitted that the action on the part of the petitioner is nothing but a clever ruse played to get away from the mandatory period of 90 days for filing the written statement. She further submitted that the petitioner could have very well filed the written statement on the date on which the application under Order IX Rule 7 of the Code was filed and the learned Trial Court would have duly considered the same but however in this process, the suit have been delayed by more than 5 years.

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This Court has duly heard the learned counsels appearing on behalf of the parties and has given anxious consideration to the matter.

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From the materials on record, it is seen that the petitioner had filed the application under Order IX Rule 7 of the Code on 21.07.2022 wherein it has been stated that the petitioner was a 65 years old lady who had to undergone surgery on account of her knee being broken. To the said application, the medical certificates were also enclosed. This Court cannot also be unmindful of the fact that when the Court passed the order of exparte, i.e. on 08.10.2021, the COVID pandemic was going on and there were certain restrictions on the movement of the senior citizens.

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This Court further has taken note of that the right to file the written statement is a substantive right and the procedural laws being always subservient to the substantive rights and therefore the learned Trial Court ought to have duly considered the application under Order IX Rule 7 of the Code to be falling within the ambit of a good cause for permitting the petitioner to participate in the said suit proceedings by filing the written statement.

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Accordingly, this Court interferes with the order dated 23.08.2022 whereby the application seeking vacation of the ex-parte order dated 08.10.2021 was rejected. This Court cannot also be unmindful of the fact that the application under Order IX Rule 7 of the Code was filed in the month of July 2022 i.e. after almost 9 months. This had occasioned considerable delay in the disposal of the said suit. Under such circumstances, it is the opinion of this Court that the respondents who are the plaintiffs are required to be compensated for the loss during this entire period as the suit proceedings continued.

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Accordingly, the instant petition stands disposed of with the following observations and directions:

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(i) The order dated 23.08.2022 is set aside and quashed and the application being Petition No.240/2022 filed by the petitioner is allowed.

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(ii) It is seen that this Court vide an order dated 27.09.2022 had stayed the further proceedings of Title Suit No.18/2020 pending before the learned Court of the Munsiff No.2, Lakhimpur at North Lakhimpur. The said stay order is vacated and as the parties are duly represented before this Court,

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they are directed to appear before the learned Trial Court on 04.06.2025.

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(iii) The petitioner is given the liberty to file the written statement on or before 04.06.2025.

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(iv) This Court further imposes a cost of Rs.25,000/- which has to be deposited by the petitioner before the learned Trial Court on the next date so fixed before the learned Trial Court hereinabove. The depositing of the said cost shall be a condition precedent for acceptance of the written statement.

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(v) The respondents herein who are the plaintiffs would be at liberty to file application for release of the said amount and the learned Trial Court shall pass appropriate orders.

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JUDGE

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Bhonmai Borah v. Maina Das Borah and Anr.

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Bhonmai Borah v. Maina Das Borah and Anr.

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