W THANTHIANGA S/O CHINHLEIA (L) Vs. STATE OF MIZORAM
LAWS(GAU)-2018-7-92
HIGH COURT OF GAUHATI
Decided on July 26,2018

W Thanthianga S/O Chinhleia (L) Appellant
VERSUS
STATE OF MIZORAM Respondents

JUDGEMENT

S. Serto, J. - (1.) Heard Mr. B. Lalramenga, learned counsel appearing for the petitioner. Also heard Mr. Rosangzuala Ralte, learned Government Advocate for the respondent Nos. 1 to 7 and Mr. Zoramchhana, learned counsel for the respondent No. 8.
(2.) This is a petition under Article 227 of the Constitution of India directed against the impugned Order dated 11.08.2017 passed by the Senior Civil Judge, Champhai District in Civil Suit No. 2/2015. The brief facts leading to the filing of this revision petition as submitted by the learned counsel of the petitioner are stated as follows:- In the year 2011, the petitioner herein filed Declaratory Suit No. 1 of 2011 before the learned Senior Civil Judge, Champhai District praying for declaration of LSC No. W-1 of 2002 issued in the name of the respondent No. 8 as null and void claiming that the said LSC was issued over his own land covered by House Site Patta No. 1/1975 over the disputed land. The suit was disposed of on 06.03.2012 in favour of the present petitioner. In the year 2012, the respondent No. 8 filed an appeal which was registered as RFA No. 24/2012 in this High Court. After hearing the parties, the same was disposed of on 25.09.2012 by remanding back the case to the Court of the Senior Civil Judge with the following orders:- "Having heard the learned counsel appearing for the parties, this Court therefore directs that a fresh trial of the Declaratory Suit filed by the plaintiff/respondent No. 1 be held again by impleading the legal representatives of the Defendant No. 4, Shri H. Vanlalauva s/o Sangkhuma (L), Ex-Minister, r/o Chhinga Veng, Aizawl and it will be open for any of the legal representatives of the Defendant No. 4, Shri H. Vanlalauva to make any application before the learned Senior Civil Judge, Champhai District under Order 22 Rule 4 sub-rule (3) CPC for declaring that the suit stands abated on the ground that the plaintiff did not file any application for impleadment of the legal representatives of the Defendant No. 4, within time, apart from other pleas that may be taken up by any of the parties on any issue. Accordingly, the present appeal stands allowed, as observed above, by setting aside the judgment and order dated 06.03.2012 passed by the learned Senior Civil Judge, Champhai District in Declaratory Suit No. 1 of 2011. The LCR may be sent back immediately."
(3.) While the case was pending before the learned Senior Civil Judge, Champhai District, the same was withdrawn by the petitioner on 20.11.2013 with the liberty to file a fresh suit. Accordingly, in the year 2015, a fresh suit being Civil Suit No. 2/2015 was instituted in the Court of the Senior Civil Judge, Champhai District without compliance of the provision of Section 80 of Code of Civil Procedure (CPC). Soon thereafter, the petitioner also filed subsequent pleadings explaining as to why provision of Section 80 was not complied with. However, realizing that the mandatory provision of Section 80 of the CPC has to be complied with since Government respondents are involved in the case filed another application praying for permission to withdraw the suit so that he may file a fresh suit after compliance of the provision of Section 80 of CPC. On 11.08.2017, the learned Civil Judge disposed of the application by rejecting the same. Aggrieved, the petitioner has come to this Court by filing this petition under Article 227 of the Constitution of India praying for quashing and setting aside of the impugned order and to direct the learned Civil Judge to allow the petitioner to withdraw the Civil Suit No. 2/2015 with a liberty to file a fresh suit after compliance of the provision of Section 80 of CPC.;


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