GHANA BORGOHAIN Vs. LEGAL HEIRS OF DURGADAS BANERJEE
LAWS(GAU)-2018-3-56
HIGH COURT OF GAUHATI
Decided on March 20,2018

Ghana Borgohain Appellant
VERSUS
Legal Heirs Of Durgadas Banerjee Respondents

JUDGEMENT

A.K.GOSWAMI - (1.) Heard Mr. A. Iqbal, learned counsel appearing for the petitioners. Also heard Mr. A. Sancheti, learned counsel appearing for the respondents.
(2.) This application under Article 227 of the Constitution of India, read with Section 151 CPC is filed against the order dated 07.08.2017, passed by the learned Civil Judge No. 1, Kamrup (Metro), Guwahati, in Misc (J) Case No. 247/14 arising out of Misc. (J) Case No. 23/12, in Title Execution Case No. 3/09, pending in the court of learned Civil Judge No. 1, Kamrup (Metro), Guwahati.
(3.) The plaintiffs/respondents instituted a title suit, being T.S. 79/86, in the court of the learned Civil Judge No. 1, Kamrup (Metro), Guwahati. By a judgement and order dated 09.07.2003, passed by the learned Civil Judge No. 1, Kamrup (Metro), Guwahati, the suit was decreed. The predecessor-in-interest of the present petitioners, who are substituted during the pendency of this Civil Revision Petition, had filed an application on 06.06.2012 under Order XXI Rule 97, 99 read with Rule 101 and 105 CPC, and the said application was registered as Misc. (J) Case No. 23/12. The said application, i.e. Misc. (J) Case No. 23/12 was dismissed for default by an order dated 10.06.2014. It is to be noted, at this point, that the plaintiffs had started an execution case, being Title Execution Case No. 3/09, which is pending in the court of the learned Civil Judge No. 1, Kamrup (Metro), Guwahati. After dismissal of Misc. (J) Case No. 23/12 because of default, a petition, being Petition No. 1540/2015, under Order IX Rule 4 read with Section 151 CPC was filed by the conducting counsel praying for restoration of Misc. (J) Case No. 23/12 and the said application was registered as Misc. (J) Case No. 247/14. The application was rejected by an order dated 14.11.2014 and, challenging the said order dated 14.11.2014, a civil revision petition, being CRP No. 62/15 was filed before this court and the same was allowed by setting the order dated 14.11.2014 with certain directions and observations. This court held that Misc. (J) Case No. 247/14 had been rejected without considering the application on merit only on the ground of unsatisfactory conduct of the petitioner. This court observed as under: "9. This Court, upon consideration of the arguments advanced by the learned counsel for the parties, is of the view that the learned trial court did not dismiss the Misc.(J) Case No.247/2014 on the ground of it being deficient in the manner the petition was verified and/or for the deficiency that the said petition was not supported by an affidavit, nor, the learned trial court below had decided the merit of the petition presented by the petitioner herein under Order IX Rule 4 read with Section 151 of CPC. As it could be evident from the impugned order extracted above, that the learned court below had merely referred to the conduct of the party in Misc.(J) Case No.23/2012 and found the conduct of the petitioner herein not to be satisfactory. In this regard, this Court is of the view that the learned court below had failed to exercise its jurisdiction vested in it by not deciding the Misc. (J) Case No.247/2014 on merit. 10. In the opinion of this Court, the learned court below was required to answer the issues raised in the said application, on its own merit, de-hors the conduct of the petitioner in Misc. (J) Case No.23/2012 as because it is evident that in view of not taking steps in the said application, the Misc.(J) Case No.23/2 012 was dismissed by the order dated 10.06.2014. Therefore, the learned court below was required to go into the merit of the restoration application. It is observed that the Misc. (J) Case No. 23/2012 was dismissed on 10.06.2014 and the restoration application was filed on 19.06.2014, which was well within the prescribed period of limitation. 11. As regards the case of Muktinath Das (supra) relied upon the learned counsel for the respondent, this Court finds that in the said cited case, the affidavit was verified carelessly and on that ground, this Court had upheld the order passed by the learned court below rejecting the application for condonation of delay. In the opinion of this Court, had the Misc.(J) Case No.247/2014 been rejected on its merit then the ratio of case of Muktinath Das (supra) would have come to the aid of the respondent." ;


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