Gauhati High Court
Ram Sagar Rai vs Birendra Rai on 26 November, 2021
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/3
GAHC010270512017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/285/2017
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1: RAM SAGAR RAI
S/O.LT. BINDESWAR RAI
R/O. VILL. VISHANPUR BAGTHAN
P.O. THARPUR
P.S. VISHANPUR BAGTHAN
DIST. BAISHALI
BIHAR.
2: VIDYASAGAR RAI
S/O.LT. BINDESWAR RAI
3: SHIVNATH RAI
S/O.LT. BINDESWAR RAI
BOTH ARE R/O. VILL. AMCHING
P.S. SATGAON
P.O. AMCHING
JORABAT
DIST. KAMRUP(M)
ASSAM
VERSUS
BIRENDRA RAI
S/O. LT. HARINATH RAI, R/O. VILL. AMCHING, P.O. AMCHING JORABAT,
P.S. SATGAON, DIST. KAMRUPM, ASSAM.
Advocate for the Petitioner : MR. L R MAZUMDER
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Advocate for the Respondent : MS.B MAHANTA
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 26-11-2021 Heard Mr. L R Mazumdar, the learned counsel appearing for the petitioner. Also heard Mr. B K Sarma, the learned counsel appearing on behalf of the sole respondent.
2. This application under Article 227 of the Constitution of India is filed challenging the order dated 10.07.2017 whereby both the Misc(J) Case No. 142/2016 filed under Order 9 Rule 4 CPC as well as the condonation application were dismissed together by the Trial Court.
3. Mr. Sarma, the learned counsel for the respondent has drawn by attention to the order dated 17.02.2016 passed by the learned Trial Court whereby the suit was dismissed for default.
4. A perusal of the order dated 17.02.2016 reveals that the plaintiff was absent without steps whereas the defendant was represented. In such a case, the said order is within the meaning of Order IX Rule 8 of the CPC. In that view of the matter, the application which could have been filed is an application under Order IX Rule 9 of the CPC and not an application under Order IX Rule 4 of the CPC. The impugned order dated 10.07.2017 shows that both the applications for restoration of the suit which was dismissed for default as well as the condonation application were dismissed together. Consequently, an appeal lies under Order 43 Rule 1(c) of the CPC. In that view of the matter, the petitioner seeks to withdraw the instant petition and avail appropriate proceeding as available under the law and he may do so, if so permissible under the law. The period from 29/08/2017 (the date of filing of the instant petition) till today (i.e. 26.11.2021) shall be excluded in calculating the period of limitation.
5. With the above observations this instant petition stands disposed of. No costs.
JUDGE Page No.# 3/3 Comparing Assistant