Gauhati High Court
The Authorised Officer vs Barnali Bora Bhuyan And Anr on 24 June, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/4
GAHC010213392019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/123/2019
THE AUTHORISED OFFICER, STATE BANK OF INDIA
STRESSED ASSETS RECOVERY BRANCH, M.R.D. ROAD, BAMUNIMAIDAM,
GUWAHATI-781021
VERSUS
BARNALI BORA BHUYAN AND ANR.
W/O SHRI SATYA BRAT BHUYAN, R/O DIST. DHEMAJI, VILL. GOPAMUKH
NAGAON, P.O. GOGAMUKH, PIN-787037
2:BOLIN BORGOHAIN
S/O LT. JAGAT BORGOHAIN
PRESENTLY RESIDING AT NIZARA PATH
JAWAHAR NAGAR
BELTOLA BAZAR
GUWAHATI-28
DIST. KAMRUP (M
Advocate for the Petitioner : MR. K K NANDI
Advocate for the Respondent :
Page No.# 2/4 BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH 24.06.2022 Heard Mr. K. K. Nandi, the learned counsel for the petitioner.
None appears on behalf of the respondents on call.
This is an application under Article 227 of the Constitution of India challenging the order dated 21.08.2019 passed in Title Suit No.258/2018 by the Munsiff No.2, Kamrup (M), Guwahati whereby the application filed for vacating the ex-parte order was rejected.
For the purpose of deciding the dispute, the relevant facts of the instant case is that the plaintiff, who is the respondent herein, had instituted a suit being Title Suit No.258/2017 seeking declaration and permanent injunction. Summons were issued in the said suit.
It appears from the records that on 08.01.2018, both the plaintiff and the defendant were absent for which the court below directed that the suit be proceeded ex-parte against the defendant and fixed 03.02.2018 for necessary order. It further appears that on 03.02.2018, the plaintiff was represented but the defendant was absent, and as such, the court below directed that on 14.03.2018, the suit be fixed for ex-parte evidence. On 14.03.2018, both the plaintiff and the defendant No. 2 were represented. On that very day, the plaintiff sought for an adjournment and the defendant No. 2 filed an application under Order IX Rule 4 read with Section 151 of the CPC for vacating the ex-parte order dated 08.01.2018 passed by the court. It has also appeared from a perusal of the order dated 14.03.2018 Page No.# 3/4 that the written statement was also filed by the defendant No. 2 which the court kept the same on record. Accordingly, the court fixed 19.04.2018 for objection and objection hearing on the petition No.940/2018. Thereafter on 21.08.2019, the impugned order was passed by which the said application under Order IX Rule 4 read with Section 151 of the CPC was rejected on the ground of misquoting of the relevant provision.
I have heard the learned counsel for the petitioner and also perused the materials on record.
The Supreme Court in the case of Jeet Mohinder Singh vs. Harminder Singh and Another reported in (2004) 6 SCC 26 held that merely wrong quoting of a Section shall not disentitle the party to relief if the party is otherwise entitled as per law.
In the instant case, the petition ought to have been filed under Order IX Rule 7 of the CPC and not under Order IX Rule 4 of the Code. However, the court had the power to vacate the order ex-parte upon good cause being shown. However vide the impugned order the court below taking a hyper technical approach have rejected the said application on the ground of misquoting of the Section. Further to that, the learned counsel for the petitioner further submits that the written statement was also filed within a period of 90 days from the date of receipt of the summons.
Taking into consideration that rules of procedure are handmaid of justice and they are always subservient to substantive rights of the parties, the court below ought to have been accepted the written statement instead of adopting the hyper technical approach. Consequently, this Court, therefore, sets aside the impugned order dated 21.08.2019 and further Page No.# 4/4 directs the court below to accept the written statement so filed on 14.03.2018 and thereafter proceed with the adjudication of the suit in accordance with law.
Before parting with the record, this Court would like to observe that had the court below not taken such a hyper technical approached, the suit which was filed in 2017 could have been brought to a logical conclusion by now.
In view of the above, this revision petitions stands disposed of.
JUDGE Comparing Assistant