Gauhati High Court
Shri Prakash Talukdar vs The State Of Assam And 3 Ors on 21 September, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/3
GAHC010259152019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : FAO/68/2019
SHRI PRAKASH TALUKDAR
S/O LATE BISWANATH TALUKDAR, RESIDENT OF DURGASOROVAR,
GUWAHATI, ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE COMMISSIONER AND SPECIAL SECRETARY TO
THE GOVT. OF ASSAM, PWD ROAD DEPARTMENT, DISPUR, GUWAHATI-
781003
2:THE CHIEF ENGINEER
PWD (ROADS)
ASSAM
CHANDMARI
GUWAHATI 781003
ASSAM
3:THE HPIU AND SUPERINTENDING ENGINEER
PWD
GUWAHATI ROAD CIRCLE
FANCY BAZAR
GUWAHATI-781001
4:THE EXECUTIVE ENGINEER
PWD
GUWAHATI ROAD DIVISION
FANCY BAZAR
GUWAHATI-78100
Advocate for the Petitioner : MRS. S ROY
Page No.# 2/3
Advocate for the Respondent : SC, PWD
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 21-09-2022 Heard Mr. R Hussain, the learned counsel appearing on behalf of the appellant and Mr. D Nath, the learned counsel appearing on behalf of the respondent.
This is an appeal under Order 43 Rule 1 (C) of the CPC challenging the order dated 14.08.2019 passed by the learned Civil Judge No.1, Kamrup (M) Guwahati in Misc. Case No.886/2018 arising out of M.S. No.85/2013.
By the said order impugned in the instant appeal the Court below have rejected the application filed under Order IX Rule 4 CPC holding inter alia that the plaintiff as well as the counsel had due knowledge about the date so fixed and as such on account of the non appearance of the plaintiff either in person or through his counsel, the Court had rightly dismissed the said suit on 30.10.2018 and accordingly, dismissed the petition under Order IX Rule 4 of the Code.
The orders dated 12.10.2018 and 30.10.2018 have also been enclosed to the instant appeal. A perusal of the order dated 12.10.2018 shows that the next date was fixed on 30.10.2018 for additional written statement and on the said date as both the sides were not present, the case was dismissed for default.
Now coming to the provisions of Order IX Rule 3 of the Code it would be seen that where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.
Page No.# 3/3 A perusal of the order dated 12.10.2018 does not indicate that the next date i.e., the 30.10.2018 was fixed for hearing rather it was fixed for filing of additional written statement.
Under such circumstances, the court could not have dismissed the suit under Order IX Rule 3 CPC. This vital aspect of the matter was not taken into consideration by the Court below while passing the order dated 14.08.2019 while rejecting the application under Order IX Rule 4 CPC.
Consequently, therefore this Court interferes and set aside the orders dated 30.10.2018 and 14.08.2019.
In view of the interference with the said orders, the suit is restored to the file of the Court of the learned Civil Judge No.1 Kamrup (M) at Guwahati.
Taking into account that the parties are duly represented before this Court, the parties are directed to appear on 09.11.2022 on which date the respondents herein who are the defendants in the said suit shall file their additional written statement, if so advised.
The trial Court shall proceed with the disposal of the suit thereof in accordance with law.
The appeal stands disposed off.
JUDGE Comparing Assistant