Gauhati High Court
Sajjan Kumar Berlia vs Smt. Sushila Baraliya And 21 Ors on 6 May, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/6
GAHC010243852015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/110/2015
SAJJAN KUMAR BERLIA
S/O LT. RAM KUMAR BERLIA R/O PARBOTIA, TINSUKIA TOWN, P.O. and P.S.
TINSUKIA, DIST. TINSUKIA, ASSAM.
VERSUS
SMT. SUSHILA BARALIYA and 21 ORS
W/O LT. JAGDISH BARALIYA
2:SRI BINIT BARALIYA
3:SRI BIKRAM BARALIYA
4:SRI SURAB BARALIYA
NO. 2 TO 4 ARE THE SONS OF LATE JAGDISHBARALIYA
ALL R/O PARBATIYA
TINSUKIA TOWN
P.O. AND P.S. TINSUKIA
DISTRICT-TINSUKIA
ASSAM
5:SRI SUBASH BARALIYA
S/OLATE RAM KUMAR BARALIYA
R/O COLLAGE TINALI
PARBOTIA
TINSUKIA TOWN
P.O. AND P.S. TINSUKIA
DISTRICT TINSUKIA
ASSAM.
6:SMT.INDRA AGARWAL
W/O SRI JUGAL KISHORE AGARWAL R/O RANGAGORA ROAD
Page No.# 2/6
TINSUKIA TOWN
P.O. AND P.S. TINSUKIA
DISTRICT TINSUKIA
ASSAM
7:SRI LAL CHAND BARALIYA
S/O LATE RAM KUMAR BARALIYA
R/O COLLAGE TINALI
PARBOTIA
TINSUKIA TOWN
P.O. AND P.S. TINSUKIA
ASSAM.
8:MAUD TEA AND SEED COMPANY LIMITED
A PUBLIC LIMITED COMPANY HAVING ITS REGISTERED OFFICE AT2- N.C.
DUTTA SARANI
SAGAR ESTATE
5TH FLOOR
UNIT NO-1
KOLKATA-700001
WEST BENGAL.
9:TINSUKIA DEVELOPMENT AUTHORITY
REPRESENTED BY ITS CHAIRMAN
P.O. AND P.S. TINSUKIA.DISTRICT- TINSUKIA
ASSAM.
10:SMT. SAKUNTALA BARALIYA
W/O LATE BINODBARALIYA
11:SMT. NIHA BARALIYA
12:SRI PULUK BARALIYA
NO. 11 IS THE DAUGHTER AND NO.12 IS THE SON OF LATE BINOD
BARALIYA
ALL R/O LANGHIN
KARBI ANGLONG
DISTRICT DIPHU
ASSAM.
13:SRI SURESH BARALIYA
S/O LATE RAM KUMAR BARALIYA
R/O STATION CHARALI
HOSPITAL ROAD
P.O AND P.S. SIBSAGAR
ASSAM.
Page No.# 3/6
14:SMT. SANTI AGARWAL
W/O SRI NABUL KISHORE GUPTA. R/O C-29
IST. FLOOR
BHAGAWAN DAS NAGAR
DELHI-26.
15:SMT. PREMA AGARWAL.
W/O SRI RAMAWATAR AGARWAL. R/O NARAYAN NAGAR
GUWAHATI
ASSAM.
16:SRI JAY PRAKASHAGARWAL
17:SRI BILOO AGARWAL.
18:SRI RABI AGARWAL
19:SMT. JHUNJHUNI AGARWAL
NO. 16
17
18ARE SONS AND NO.19 IS THE DAUGHTER OF LATE PURANMAL
AGARWALA AND LATE DROWPADI BARALIYA
ALL R/O STATION CHARALI
SIBSAGAR TOWN
P.O AND P.S. SIBSAGAR
DISTRICT -SIBSAGAR
ASSAM.
20:SMT. DURGAAGARWAL
W/O NAND KISHORE AGARWAL
R/O SIMULGURI
P.S AND P.O SIMULGURI DISTRICT -SIBSAGAR
ASSAM.
21:SMT. SUNITAJAIN
W/O SRI MANISH JAIN
D/O LATE JAGADISHAGARWAL
R/O ROHINI
SECTOR 7
C-7-94-95
2ND FLOOR
DELHI.
22:SRI RAJ KUMAR BARALIYA
S/O LATE DWARIKA PRASAD BARALIYA
Page No.# 4/6
C/O M/S JAYANTI STORES
A.T. ROAD
NEAR BATA AGENCY
P/O AND DIST-TINSUKIA
ASSA
Advocate for the Petitioner : MR.K RAJBONGSHI
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 06-05-2022 Heard Mr. SP Roy, the learned counsel for the petitioner and Mr. AK Gupta, learned counsel for respondent Nos.1 to 4. None appears for the other respondents.
The instant application under Article 227 of the Constitution of India has been filed challenging the order dated 24.08.2015 whereby the application filed by the defendant No.2/petitioner herein under Order IX Rule 7 of the CPC 1908 (for short 'the Code') was rejected on the ground that the petitioner/defendant No.2 would not show good cause.
I have perused the application under Order IX Rule 7 CPC filed by the petitioner.
From a perusal of the said application it shows that the defendant No.2 had initially engaged one Amit Kr. Prasad, Advocate for defending the case of the petitioner/defendant No.2 and thereupon the defendant No.2 handed over all the necessary documents relating to the part of his property involved in the matter in issue to the said counsel. It has also been stated that the concerned counsel had also taken signature on the written statement prepared by him and assured the defendant No.2 that the said written statement would be filed.
Page No.# 5/6 A further perusal of the above petition under Order IX Rule 7 filed by the defendant No.2 shows that the defendant No.2 was asked by the bank authorities to submit some documents including Farm number (M-
55). When the defendant No.2 was taking steps for settling the Farm number (M-55), it came to light that the suit was at the stage of cross- examination of the plaintiff witnesses and the said suit was proceeding ex- parte against the petitioner/defendant No.2.
It is under such circumstances that the defendant No.2 filed an application under Order IX Rule 7 CPC for setting aside the ex-parte order dated 04.05.2009 passed by the trial Court. At this stage it may be relevant herein to mention that the said suit was filed for declaration of right title and interest along with the partition of the properties and as such, this Court is of the opinion that the stand of the defendant No.2 also needs to be taken into account while adjudicating the partition suit.
It also appears from the record that the defendant No.2 had already filed their written statement which was not accepted and returned vide the order impugned in the instant proceedings.
I have heard the learned counsel for the petitioner as well as also the learned counsel for the respondents and have given my anxious consideration in the matter.
The cause shown in the application under Order IX Rule 7 in the opinion of this Court comes within the ambit of a good cause and as such, this Court is of the opinion that the learned trial Court ought to have permitted the defendant No.2 to file its written statement, more so, when this is a case pertaining to partition of the property amongst the family members. Accordingly, the order dated 24.08.2015 is set aside and thereby directing the learned trial Court i.e., the Court of the learned Civil Judge Tinsukia to accept the written statement filed by the defendant No.2 on Page No.# 6/6 record and thereupon to proceed with the suit in accordance with law.
Taking into account that the other defendants have already filed their written statement(s) and issues have been framed, the learned trial Court may take into account the pleadings of the defendant No.2 and frame any additional issues, if so necessary.
In that regard if the plaintiff wishes to file additional evidence on affidavit taking into account the stand taken by the defendant No.2, the plaintiff would also be at liberty to file additional evidence on affidavit.
The said exercise be completed within a period of 60 (sixty) days from the date of appearance of the parties before the trial Court which this Court fixes on 27.05.2022.
Taking into account the inconvenience caused to the plaintiff in filing the said application under order IX Rule 7 at the belated stage by the Defendant No.2/petitioner, this Court imposes a cost of Rs.25,000/- upon the defendant No.2/petitioner which shall be deposited before the Trial Court on 27.05.2022 and the same shall be a condition precedent for acceptance of the written statement of the defendant No.2.
The learned trial Court shall permit the plaintiff to withdraw the said amount upon such deposit being made by the Defendant No.2/plaintiff.
With the above observations, the Revision Application stands disposed off.
JUDGE Comparing Assistant