Md. Rantu Ali Vs Md. Sayed Ali and 4 Ors.

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GAHC010152922024

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2025:GAU-AS:7651

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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)/279/2024

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MD. RANTU ALI SON OF LATE SARIF ALI, RESIDENT OF VILLAGE- AGYATHURI (CHARMAJULI), CIRCLE- HAJO, MOUZA- PUB BONGSAR, P.O./ P.S.- HAJO, DISTRICT- KAMRUP(RURAL), ASSAM.

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VERSUS

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MD. SAYED ALI AND 4 ORS SON OF LATE AKHERUDDIN ALI, RESIDENT OF VILLAGE- CHARMAJULIPAM, MOUZA- PUB BONGSAR, P.O./ P.S.- HAJO, DIST.- KAMRUP(RURAL), ASSAM.

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2:MD. AYUB ALI SON OF LATE AKHERUDDIN ALI

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RESIDENT OF VILLAGE- CHARMAJULIPAM

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MOUZA- PUB BONGSAR P.O./ P.S.- HAJO DIST.- KAMRUP(RURAL) ASSAM.

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3:MD. ARJED ALI SON OF LATE AKHERUDDIN ALI

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RESIDENT OF VILLAGE- CHARMAJULIPAM MOUZA- PUB BONGSAR P.O./ P.S.- HAJO DIST.- KAMRUP(RURAL) ASSAM.

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4:MD. TABIBUR ALI SON OF LATE AKHERUDDIN ALI RESIDENT OF VILLAGE- CHARMAJULIPAM

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MOUZA- PUB BONGSAR P.O./ P.S.- HAJO DIST.- KAMRUP(RURAL) ASSAM. 5:MD. BABU ALI SON OF LATE AKHERUDDIN ALI RESIDENT OF VILLAGE- CHARMAJULIPAM MOUZA- PUB BONGSAR P.O./ P.S.- HAJO DIST.- KAMRUP(RURAL) ASSAM

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For the Petitioner(s) : Mr. A.K. Purkayastha, Advocate For the Respondent(s) : None appears

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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ORDER

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Date : 11.06.2025

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Heard Mr. A.K. Purkayastha, the learned counsel appearing on behalf of the petitioner.

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None appears on behalf of the respondents in spite of service being affected.

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The petitioner has invoked the supervisory jurisdiction of this Court challenging the order dated 09.04.2024 passed by the learned Court of the Civil Judge, Kamrup, Amingaon (hereinafter referred to as, “the learned Trial Court”) in Misc. (J) Case No. 163/2023 arising out of Title Suit No. 103/2022 whereby the said application filed under Order XXIII Rule 1(3) of the Code of Civil Procedure, 1908 (for short, “the Code”) was rejected.

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This Court has duly perused the order dated 09.04.2024 and it is seen that even before framing of the issues, the petitioner as plaintiff had filed the application for withdrawal of the suit with liberty to re-file.

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The learned counsel appearing on behalf of the petitioner has drawn the attention of this Court to the plaint and submitted that it has been drafted in such a manner that, on the face of it, it would show that there is a formal defect. The learned counsel further drew the attention of this Court to the contents of the plaint and submitted that a perusal of the plaint

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itself would show that at Paragraph No. 2, it has been categorically mentioned that the plaintiff claims title on the basis of 2 (two) Registered Deeds of Sale.

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The learned counsel appearing on behalf of the petitioner further submitted that the plaintiff had also stated that the defendants were interfering with the possession of the plaintiff and thereby clouding the title of the plaintiff. However, no declaration has been sought, which was required to be sought for in order to succeed in the suit. The learned counsel submitted that upon reading of the plaint, there were formal defects. In addition to that, the plaintiff had also failed to bring on record that the plaintiff has other brothers who ought to have been made parties to the suit and without them, the suit could not have proceeded. He therefore submitted that the learned Trial Court ought to have duly considered this aspect of the matter, that too, when the application was filed at the first instance after taking into account the written statement so filed.

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The learned counsel appearing on behalf of the petitioner also submitted that it was on account of an incorrect advice, so provided by the learned counsel who had prepared the plaint and it was on account of such incorrect or mistaken advice the suit was filed.

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This Court has duly perused the said plaint and has also taken into consideration the application filed under Order XXIII Rule 1(3) of the Code. This Court has further taken note of the order dated 09.04.2024, whereby the learned Trial Court appeared to be more concerned with the fact that the suit was filed in the year 2022, rather than looking into, as to what, was the stage of the suit. It is the opinion of this Court that the suit so filed by the plaintiff had formal defects on account of not seeking adequate reliefs for the purpose of maintaining the suit as well as also not impleading the other brothers of the plaintiff, who ought to have been made parties.

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Taking into account the above grounds, it is therefore the opinion of this Court that the learned Trial Court ought to have allowed the application filed under Order XXIII Rule 1(3) of the Code thereby allowing the plaintiff to withdraw the suit with liberty to re-file. The learned Trial Court having failed to exercise the jurisdiction vested upon it by law, for which, this Court is of the opinion that this is a fit case for exercising its supervisory jurisdiction.

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

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i) The Misc (J) Case No. 163/2023 stands allowed

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thereby allowing the plaintiff to withdraw the suit with liberty to re-file.

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ii) This Court further imposes a cost of Rs. 10,000/- upon the plaintiff. The said amount be deposited by the plaintiff before the learned Trial Court before instituting any fresh suit.

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iii) The learned Trial Court shall permit the defendants to withdraw the said amount upon filing application in that regard.

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JUDGE

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Comparing Assistant

Md. Rantu Ali v. Md. Sayed Ali and 4 Ors.

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Md. Rantu Ali v. Md. Sayed Ali and 4 Ors.

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