Allowed¶8

MD Jakir Hussain v. Mustt Manuwara Khatun and 2 Ors.

Gauhati HC11 Mar 2026CRP(IO)/168/2025

Case brief

AI extract

What is this about?

Gauhati High Court CRP(IO)/168/2025; Sanjeev Kumar Sharma, J.; 12.03.2026; Section 151 CPC; Article 227 Constitution of India; dismissal of suit for non-taking of steps; fault of counsel; Rafique and others Vs. Munshilal and Ors AIR 1981 SC 1400; another opportunity to take steps; defendant No.2; T.S. No. 131/2023; Petition No.461/2025; Petition No.462/2025; Civil Judge (Junior Division) No. 2, Nagaon; order set aside; petition allowed.

What did the court decide?

Petition allowed and disposed of: impugned order dated 26.03.2025 (insofar as it relates to Petition No. 462 of 2025) set aside; petitioner/plaintiff granted one more opportunity to take proper steps against defendant No.2. ¶8

MD Jakir Hussain Vs Mustt Manuwara Khatun and 2 Ors. — Writ and Judicial Review | Gauhati HC (2026)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the petitioner/plaintiff deserved another opportunity to take steps against defendant No.2, given that the suit stood dismissed as against defendant No.2 for non-taking of steps attributable to the plaintiff's counsel.

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Court's answer

Adopting the principle in Rafique v. Munshilal (AIR 1981 SC 1400) that a party should not suffer for the inaction, deliberate omission or misdemeanor of its counsel, the court held that in the facts and circumstances of the present case the petitioner deserved another opportunity to take steps upon Defendant No.2.

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Ratio / Principle

The impugned order dated 26.03.2025, insofar as it relates to Petition No. 462 of 2025 passed by the learned Civil Judge (Junior Division) No. 2, Nagaon in T.S. No. 131/2023, is set aside, and the petitioner/plaintiff is granted one more opportunity to take proper steps as against defendant No.2.

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Detailed headnote1 paragraphs

CRP(IO)/168/2025, Gauhati High Court (Sanjeev Kumar Sharma, J.), decided 12.03.2026 — Filed under Section 151 CPC read with Article 227 of the Constitution against orders dated 26.03.2025 and 14.08.2024 of the Civil Judge (JD) No. 2, Nagaon in T.S. No. 131/2023. The plaintiff's suit stood dismissed as against defendant Nos. 1 and 2 (order dated 14.08.2024) because counsel, though permitted by order dated 26.02.2024, failed to take steps; the trial court later allowed restoration Petition No.461/2025 but rejected Petition No.462/2025 (order dated 26.03.2025), leaving the suit dismissed as against defendant No.2. Relying on Rafique and others Vs. Munshilal and Ors, AIR 1981 SC 1400 (party should not suffer for the inaction, deliberate omission or misdemeanor of the counsel), the High Court held the petitioner deserved another opportunity, set aside the order dated 26.03.2025 insofar as it related to Petition No. 462 of 2025, and granted the petitioner/plaintiff one more opportunity to take proper steps against defendant No.2. Petition allowed and disposed of.

Page No.# 1/4

GAHC010087022025

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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)/168/2025

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MD JAKIR HUSSAIN

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SON OF LATE ANUWAR HUSSAIN, RESIDENT OF- NO. 2 MULLAPATTY, MOMOTA GOLI, MOUZA - KACHAMARI, P.S.- NAGAON SADAR, DISTRICTNAGAON, ASSAM

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VERSUS

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MUSTT MANUWARA KHATUN AND 2 ORS. WIFE OF MD. JAKIR HUSSAIN, R/O VILL- NARAMARI, AMTOL, MOUZAKACHAMARI, P.S.- NAGAON SADAR, DIST- NAGAON, ASSAM

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2:MD. JAKIR HUSSAIN SON OF LATE SURUJ ALI RESIDENT OF VILLAGE - NARAMARI AMTOL MOUZA - KACHAMARI P.S. - NAGAON SADAR DISTRICT - NAGAON ASSAM 3:MD. HASEN ALI HAZARIKA SON OF LATE ABDUL BARIK RESIDENT OF VILLAGE - NO. 2 MULLAPATTY MOMOTA GOLI MOUZA - KACHAMARI P.S. - NAGAON SADAR DISTRICT - NAGAON ASSA

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Advocate for the Petitioner : MR D MAHANTA, MR T GOGOI

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Advocate for the Respondent : ,

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Page No.# 2/4

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BEFORE HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA

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ORDER

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Date : 12.03.2026

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Heard Mr. D. Mahanta, learned counsel for the petitioner.

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[ 2 ] This application has been filed under Section 151 of the CPC read with Article 227 of the Constitution of India challenging the orders dated 26.03.2025 and 14.08.2024, passed by the learned Civil Judge (Junior Division) No. 2, Nagaon in T.S. No. 131/2023.

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[ 3 ] The petitioner herein has assailed the order dated 26.03.2025 by which the application so filed being Petition No.462/2025 was rejected thereby holding that the suit stands dismissed in so far as the defendant No.2 is concerned. The learned counsel for the petitioner has submitted that the defendant No.1 and the defendant No.2 are husband and wife. Pursuant to the initial steps being taken, the defendant No.1 had duly appeared. However, the defendant No.2 did not appear. The counsel for the petitioner before the learned Trial Court filed an application on 26.02.2024 for taking steps. However, the said counsel did not take suchsteps pursuant to the order dated 26.02.2024. Under such circumstances an order was passed on 14.08.2024 whereby the learned Court below had dismissed the suit as against the defendant Nos. 1 and 2. The learned counsel has submitted that pursuant to the above, two applications were filed being Petition No.461/2025 and 462/2025 and by the impugned order dated 26.03.2025 the learned trial Court had allowed the application being Petition No.461/2025 but rejected the Petition No.462/2025.

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Page No.# 3/4

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[ 4 ] The learned counsel has submitted that the non-taking of the steps by the counsel appearing on behalf of the petitioner in the trial court was solely the fault of the counsel and the petitioner could not have been penalized for the fault of the counsel. The learned counsel has also submitted that a perusal of the entire order-sheets of Title Suit No.131/2023 would also go to show that there is no order passed subsequently directing the petitioner to take steps after the prayer was allowed vide order dated 26.02.2024. It is, therefore, the submission of the learned counsel for the petitioner that before taking such drastic steps for dismissing the suit in so far as the defendant No.2 is concerned, the learned trial court ought to have granted an opportunity.

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[ 5 ] None has appeared for the respondents although service against them is complete.

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[ 6 ] Taking into account the above as well as the decision of the Hon’ble Apex Court in Rafique and others Vs. Munshilal and Ors . AIR 1981 SC 1400, wherein it has been held that the party should not suffer for the inaction, deliberate omission or misdemeanor of the counsel, I am of the view that in the facts and circumstances of the present case, the petitioner deserved another opportunity to take steps upon the Defendant No. 2.

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[ 7 ] In view of the above, the impugned order dated 26.03.2025 in so far as it relates to petition No. 462 of 2025, passed by the learned Civil Judge (Junior Division) No. 2, Nagaon in T.S. No. 131/2023 is set aside, the petitioner/ plaintiff is to be granted one more opportunity to take proper steps as against the defendant No. 2.

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[ 8 ] The petition stands allowed and disposed of accordingly.

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JUDGE

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Comparing Assistant

MD Jakir Hussain v. Mustt Manuwara Khatun and 2 Ors.

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MD Jakir Hussain v. Mustt Manuwara Khatun and 2 Ors.

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