Gauhati High Court
Page No.# 1/5 vs Chinmoy Phukan on 29 July, 2025
Page No.# 1/5
GAHC010037782024
2025:GAU-AS:9684
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : FAO/15/2024
MONISHA BORAH PHUKAN @ MONISHA BORAH
W/O SHRI CHINMOY PHUKAN,
D/O LATE JOGESH BORAH,
R/O QTR. NO. TY-11/NC/81, ARC, DOOM DOMMA, P.O.- SOOKERATING,
DIST.- TINSUKIA, ASSAM, PIN- 766151.
VERSUS
CHINMOY PHUKAN
S/O SHRI TILOK PHUKAN,
R/O RUPBAN, DAIMUKHIA GAON, P.O. AND P.S.- DOOM DOOMA, DIST.-
TINSUKIA, ASSAM, PIN- 766151.
Advocate for the Petitioner : MR. P P DAS,
Advocate for the Respondent : MR. A K GUPTA, MS B SARMA,MR. R S MISHRA
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
29.07.2025 Heard Mr. S. Das, learned counsel for the appellant and Mr. A.K. Gupta, learned counsel for the respondent.
2. In this appeal, under Order 43 Rule 1(c) read with Section 151 of the CPC, the appellant has challenged the order dated 15.12.2023, passed by the learned Additional District Judge No. 2 (FTC), Tinsukia (trial court hereinafter), in Misc.
Page No.# 2/5 (J) Case No. 14/2023.
3. It is to be noted here that vide impugned order dated 15.12.2023, the learned trial court had affirmed the order dated 31.05.2023, passed in Title Suit (Matrimonial) No. 143/2015.
4. Mr. Das, learned counsel for the appellant submits that the appellant, as plaintiff, had instituted a suit, being Title Suit (Matrimonial) No. 143/2015 against the respondent, praying for a decree of divorce before the learned trial court. Thereafter, on 31.05.2023, the said suit was fixed for hearing (part heard) on the Petition No. 802/2022 filed by the respondent to grant leave to file additional written statement and to call for some records. But, due to inadvertent mistake, the learned Advocate for the petitioner/appellant herein, due to bona-fide mistake in inserting the date of the suit in her diary, she could not appear before the learned trial court and also to take steps of the suit. But, the learned trial court, vide order dated 31.05.2023, had dismissed the suit.
4.1. Mr. Das further submits that, thereafter, the learned counsel for the petitioner/appellant herein had filed one petition, under Order IX Rule 4 of the CPC, for restoration of the said suit by setting aside the order dated 31.05.2023, which was registered as Misc. (J) Case No. 14/2023. But, the learned trial court illegally and arbitrarily dismissed the said Misc. (J) case, vide impugned order dated 15.12.2023, by holding that the application is not signed and verified by the petitioner/appellant herein herself as per Gauhati High Court Rules (the Rules hereinafter) and no sufficient cause has been shown.
4.2. Further submission of Mr. Das is that the learned counsel for the petitioner/appellant herein had produced the diary before the learned trial court and also made an averment in the petition that the matter is between the Page No.# 3/5 husband and the wife and the same is required to be heard on merit. Mr. Das also submits that on account of lapse of the counsel for the petitioner/appellant herein, the petitioner/appellant herein should not suffer and therefore, it is contended that the impugned order may be set aside and quashed and the parties may be directed to appear before the learned trial court and the learned trial court may be directed to restore the suit to file and thereafter, hear both the parties in accordance with law.
5. On the other hand, Mr. Gupta, learned counsel for the respondent submits that in fact on technical ground, the learned trial court had dismissed the petition as the petition ought to have been verified by the petitioner/appellant herein herself. However, Mr. Gupta has agreed to the submission of Mr. Das, learned counsel for the appellant that on account of lapse of the counsel for the petitioner/appellant herein, the petitioner/appellant herein should not suffer. Mr. Gupta has also agreed that in the event of setting aside the impugned order, the matter may be remanded to the learned trial court with a direction to restore the suit to file and thereafter, proceed with the matter in accordance with law.
6. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on record and also perused the impugned order dated 15.12.2023, by which the learned trial court had affirmed the order dated 31.05.2023, passed in Title Suit (Matrimonial) No. 143/2015.
7. It appears that on account of non-appearance of the counsel for the petitioner/appellant herein, the learned trial court had dismissed the suit on 31.05.2023. But, on that day, the case was fixed for hearing on the Petition No. 802/2022, filed by the respondent to grant leave to file additional written statement and call for some records and instead of disposing of that application, Page No.# 4/5 the learned trial court had dismissed the suit.
7.1. Further, on that day, due to inadvertent mistake, in posting the next date in her diary, the counsel for the petitioner/appellant herein could not appear and she had explained the same in her petition and further, she stated that there is no laches on the part of the petitioner/appellant herein.
7.2. It also appears from the impugned order, dated 15.12.2023, that the learned trial court had dismissed the application under Order 9 Rule 4 read with Section 151 of the CPC for setting aside the order dated 31.05.2023, passed in Misc. (J) Case No. 14/2023, on the ground that the application was not signed and verified by the petitioner/appellant herein herself as required by the Rules and that no sufficient ground was shown to support the contention of the petitioner/appellant herein to substantiate the same.
8. But, it appears from the submission of Mr. Das, learned counsel for the appellant and also from the documents placed on record, especially from the petition under Order IX Rule 4 of the CPC that on the date, when the suit was dismissed, the case was fixed for hearing of the Petition No. 802/2022, filed by the respondent. It further appears that the learned counsel for the petitioner/appellant herein, in the petition under Order IX Rule 4 of the CPC has explained that on the bona-fide mistake of her part in posting the date in her diary, she could not appear on the date fixed.
9. In that view of the matter, the learned trial court would not have to dismiss the petition while the counsel for the petitioner/appellant herein had shown sufficient cause for non-appearance before the court on the date fixed.
10. It is also well settled that on account of lapse of the counsel, the litigant should not suffer.
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11. Thus, having examined the impugned order in the given facts and circumstances on the record and also in the light of the submissions of learned counsel for both the parties, this court is of the view that the impugned order failed to withstand the test of legal scrutiny and accordingly, the same stands set aside and quashed.
12. Consequently, it is provided that the learned trial court shall restore the Title Suit (Matrimonial) No. 143/2015 to file and thereafter, shall proceed with the same in accordance with law.
13. Both the parties are directed to appear before the learned trial court on 18.08.2025.
14. In terms of above, this FAO stands disposed of.
JUDGE Comparing Assistant