Gauhati High Court
Chandan Mall Jain vs Md. Tamez Uddin Alias Mantu And 6 Ors on 22 June, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/5
GAHC010130812021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/89/2021
CHANDAN MALL JAIN
S/O LATE HAREK CHAND JAIN, KHARUPETIA TOWN, WARD NO. 1, P.O.-
KHARUPETIA-784115, DIST- DARRANG, ASSAM
VERSUS
MD. TAMEZ UDDIN ALIAS MANTU AND 6 ORS
S/O LATE SANJU SHEIKH, R/O VILL-BALOGARH, MOUZA-SHYAMABARI,
P.O.-KAHRUPETIA-784115, DIST-DARRANG, ASSAM
2:MD. ASKAR ALI
S/O LATE SANJU SHEIKH
R/O VILL-BALOGARH
MOUZA-SHYAMABARI
P.O.-KAHRUPETIA-784115
DIST-DARRANG
ASSAM
3:MUSSTT. AIMAN NESSA
D/O LATE SANJU SHEIKH
R/O VILL-BALOGARH
MOUZA-SHYAMABARI
P.O.-KAHRUPETIA-784115
DIST-DARRANG
ASSAM
4:MD. SAHER ALI
S/O LATE DARBES ALI
R/O VILL-MOWAMARI
MOUZA-PACHIM SIALMARI
P.O.-KHARUPETIA-784115
DIST-DARRANG
Page No.# 2/5
ASSAM
5:MD. ZAHER ALI
S/O LATE DARBES ALI
R/O VILL-MOWAMARI
MOUZA-PACHIM SIALMARI
P.O.-KHARUPETIA-784115
DIST-DARRANG
ASSAM
6:MD. JEHIR ALI
S/O LATE SAMED ALI
R/O VILL-BALOGRAH
MOUZA-SHYAMBARI
P.O.-KAHRUPETIA-784115
DIST-DARRANG
ASSAM
7:MD. ZAHAR ALI ALIAS GHARI
S/O LATE SAMED ALI
R/O VILL-BALOGRAH
MOUZA-SHYAMBARI
P.O.-KAHRUPETIA-784115
DIST-DARRANG
ASSA
Advocate for the Petitioner : MR. N DHAR
Advocate for the Respondent :
BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH 22.06.2022 Heard Mr. N. Dhar, the learned counsel for the petitioner and Mr. T. Islam, the learned counsel appearing on behalf of the respondents.
This application has been filed under Article 227 of the Constitution of India challenging the order dated 12.04.2021 passed in Title Suit No. Page No.# 3/5 61/2021 by the Court of the Munsiff No. 2, Darrang, Mangladai whereby the application filed under Order XXXIII Rule 1 (3) read with Section 151 of the Code of Civil Procedure for withdrawal of the suit with liberty to institute a fresh suit was rejected.
The fact of the instant case is that the plaintiff had instituted a suit seeking declaration of his right, title and interest over the suit land; for a decree for ejectment of the defendants and/or any other person under them be removed with their belongings from the houses/ekchalia constructed by the defendants over the suit land or from any other houses or structures whatsoever, if any, as may be found at the time of execution of the decree and vacant possession thereof be delivered to the plaintiff and for permanent injunction restraining the defendants from further dispossessing the plaintiff from the suit land.
The suit land has been specifically described in the schedules to the plaint. The defendant Nos. 1, 2 & 3, in the suit, had filed a written statement raising various preliminary objections including the objection as regards non-joinder of necessary parties inasmuch as the suit patta had 39 pattadars and that the plaintiff was not entitled to a decree as prayed for without impleading the said pattadars and the remedy of the plaintiff lies in a suit for partition and not in a suit filed in the present form.
It appears from the record that the suit was instituted on 06.05.2014 and the written statement was submitted on 15.06.2015. Issues were framed and the plaintiff side had adduced evidence on affidavit of four witnesses on 19.10.2015. It further appears that the plaintiff had sought for various amendments to the plaint. The first of such amendment was allowed on 21.01.2017, but the second amendment application was Page No.# 4/5 rejected vide the order dated 01.02.2018. Vide the second amendment application, the plaintiff wanted to seek additional relief of ejectment of the defendants, their agents etc. from the suit land and for issuing a direction to the concerned Circle Officer to cancel any illegal mutation regarding the suit land.
Thereafter on 17.08.2018, a petition was filed under Order XXXIII Rule 1 (3) read with Section 151 of the CPC seeking leave of the court to withdraw the suit with a liberty to institute a fresh suit in respect to the subject matter of the above in an appropriate manner for partition of the suit land covered by Dag No.126 of Periodic Patta No.38 situated at village Bologarah under Mouza-Shyamabari, P.S.-Dhula in the district of Darrang by impleading all the co-owners of the suit land in the suit, in accordance with law.
A perusal of the paragraph No. 4 of the said application shows that it was the specific case of the plaintiff that there were certain formal defects in not impleading the co-pattadars in respect to the suit land and not filing the suit for partition. Written objection to the said application was filed wherein the said prayer of the plaintiff was opposed on the ground that there was no formal defect and the defect in the suit goes to the root of the matter.
The learned trial court vide the order dated 12.04.2021, rejected the said application on the ground that the formal defects which have been mentioned in the petition under Order XXXIII Rule 1 (3) read with Section 151 of the CPC, was not a formal defect, in fact, the defect goes to the root of the matter. It was further observed that the suit so filed by the plaintiff was a suit seeking right, title and interest over the suit property and for Page No.# 5/5 ejectment of the defendants and a completely different cause of action which had no relation whatsoever as regards a suit in question and as such the question of there being a formal defect does not arise in the facts of the case.
I have perused the said order dated 12.04.2021 and upon perusal of the said order, this Court is of the opinion that the order passed by the court below does not call for any interference in a proceeding under Article 227 of the Constitution of India, on the ground that question of formal defect does not arise in the facts and circumstances of the case.
Consequently, the instant application stands dismissed.
In view of the dismissal of the instant application, the order dated 27.09.2021 by which the proceeding in Title Suit No.61/2021, pending in the Court of the Munsiff No. 2, Darrang, Mangladai was stayed, is hereby vacated and the parties are directed to appear before the court below on 29.07.2022.
JUDGE Comparing Assistant