Gauhati High Court
Dibrugarh Hanumanbux Surajmal Kanoi ... vs Kamal Chandra Gogoi And 14 Ors on 12 December, 2018
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/5
GAHC010272262018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 188/2018
1:DIBRUGARH HANUMANBUX SURAJMAL KANOI COMMERCE COLLEGE
AND ANR.
DIBRUGARH, ESTD AND CONSTITUTED UNDER DIBRUGARH
UNIVERSITY ACT, 1965 REP. BY ITS PRINCIPAL AND SECRETARY DR.
KANINDRA MISRA BHAGAWATI, DIBRUGARH HANUMANBUX SURAJMAL
KANOI COMMERCE COLLEGE, DIBRUGARH, DIST- DIBRUGARH, ASSAM,
PIN- 786001
2: KHANINDRA MISRA BHAGAWATI
THE PRINCIPAL AND SECRETARY
DIBRUGARH HANUMANBUX SURAJMAL KANOI COMMMERCE COLLEGE
DIBRUGARH
DIST- DIBRUGARH
ASSAM
PIN- 78600
VERSUS
1:KAMAL CHANDRA GOGOI AND 14 ORS.
S/O- LATE UMA KANTA GOGOI, R/O- BANIPUR BYE LANE NO. 2, P.O
BANIPUR, P.S AND DIST- DIBRUGARH, ASSAM, PIN- 786002
2:ARUN CHANDRA GOGOI
W/O- LATE ARUN CHANDRA GOGOI
R/O- BANIPUR
P.S AND DIST- DIBRUGARH
ASSAM
PIN- 786002
3:MADHYRJYA GOGOI
S/O- LATE ARUN CHANDRA GOGOI
R/O- BANIPUR
P.S AND DIST- DIBRUGARH
ASSAM
Page No.# 2/5
PIN- 786002
4:NILIMA GOGOI
W/O- LATE ARUN CHANDRA GOGOI
R/O- BANIPUR
P.S AND DIST- DIBRUGARH
ASSAM
PIN- 786002
5:SUSIL SAIKIA
S/O- MEGHNATH SAIKIA
R/O- BANIPUR
P.S AND DIST- DIBRUGARH
ASSAM
PIN- 786002
6:PRANAB GOGOI
S/O- LATE BHAGYESWAR GOGOI
R/O- BANIPUR
P.S AND DIST- DIBRUGARH
ASSAM
PIN- 786002
7:TARUN GOGOI
S/O- MUKTI GOGOI
R/O- BANIPUR
P.S AND DIST- DIBRUGARH
ASSAM
PIN- 786002
8:ARUN GOGOI
S/O- LATE DHAJEN GOGOI
R/O- BANIPUR
P.S AND DIST- DIBRUGARH
ASSAM
PIN- 786002
9:BARUN CHANDRA GOGOI
S/O- MUKUT CHANDRA GOGOI
R/O- BANIPUR
P.S AND DIST- DIBRUGARH
ASSAM
PIN- 786002
10:BIPUL CHELLENG
S/O- NOT KNOWN
R/O- BANIPUR
P.S AND DIST- DIBRUGARH
Page No.# 3/5
ASSAM
PIN- 786002
11:GIRINDRA NATH KONWAR
S/O- PABITRA KONWAR
R/O- BANIPUR
P.S AND DIST- DIBRUGARH
ASSAM
PIN- 786002
12:HARINARAYAN KEOT
S/O- MAHABIR KEOT
R/O- BANIPUR
P.S AND DIST- DIBRUGARH
ASSAM
PIN- 786002
13:NARAYAN KEOT
S/O- MAHABIR KEOT
R/O- BANIPUR
P.S AND DIST- DIBRUGARH
ASSAM
PIN- 786002
14:SUSIL SAIKIA
S/O- SRI MEGHNATH SAIKIA
R/O- BANIPUR
P.S AND DIST- DIBRUGARH
ASSAM
PIN- 786002
15:OMEN MENTHOM DEORI
W/O- LATE TANKESWAR DEORI
R/O- BANIPUR
P.S AND DIST- DIBRUGARH
ASSAM
PIN- 78600
Advocate for the Petitioner : MR N N UPADHYAYA
Advocate for the Respondent :
Page No.# 4/5
BEFORE
HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA
ORDER
12.12.2018 Heard Mr. N. N. Upadhayaya, the learned counsel for the petitioners.
In this revision application order dated 06.09.2018 passed in Misc. Appeal No.05/2017 by the learned Addl. District Judge, Dibrugarh is under challenge. The present petitioners filed Title Suit No.37/2006 against the present principal respondent No.1 along with rest of the pro-forma respondents. The suit proceeded ex parte against the present respondent No.1 and on receipt of notice from the executing court, it came to the knowledge of the respondent No.1 following which an application under Order IX Rule 13 of the CPC to set aside the ex parte judgment and decree was preferred in the trial court. The same was rejected following which the Misc. Appeal No.05/2017 which was filed in the Addl. District Judge, Dibrugarh against the dismissal order was allowed.
Being aggrieved, the plaintiffs/petitioners are before this Court challenging the said impugned order.
Mr. Upadhayaya submits that as apparent from the impugned order the learned court below misinterpreted the provision of order V Rule 17 of the CPC. It is further submitted that though the order for proceeding ex-parte was passed on 14.11.2007, subsequent thereto service on the defendants in the suit was directed to be taken by substituted manner by publishing the notices in the newspaper. Admittedly, the said notice was published in the newspaper dated 13.02.2008.
The contention of the learned counsel for the petitioners is that though there was an order on 14.11.2007, subsequent thereto notices were issued by way of paper publication which is not reflected in the impugned order which shows that the impugned order was passed without application of mind by the court below.
Under such circumstances, in my opinion, it would be appropriate to go through Page No.# 5/5 the order-sheets of the trial court to which Mr. Upadhyaya sought for some more time to produce the same.
Considering the same, let the matter be listed again for motion on 21.12.2018.
JUDGE Comparing Assistant