GAUHATI HIGH COURT ISSUES ORDER FOR SALAM AHMED BARBHUIYA V/S MD. ABID HUSSAIN MAZUMDER AND 8 ORS

GUWAHATI, India, July 11 -- Gauhati High Court issued the following order on June 11:

1. Heard Mr. P. K. Roy, the learned senior counsel assisted by Ms. R. Choudhury, the learned counsel appearing on behalf of the petitioner and Mr. M. H. Laskar, the learned counsel who appears on behalf of the respondent Nos.1 to 5 as well as Mr. S. D. Purkayastha, the learned counsel who appears on behalf of the respondent Nos.6 to 9.

2. The present application has been filed challenging the order dated 10.05.2024 passed in Misc.(J) Case No.24/2010 arising out of Title Suit No.16/2012 by the Court of the learned Civil Judge (Senior Division) No.2 at Silchar (hereinafter referred to as 'the learned Trial Court') whereby the said Miscellaneous Application was rejected.

3. It is relevant to take note of that the respondent Nos.1 to 5 in the present proceedings had filed the suit being Title Suit No.16/2012 before the Court of the learned Civil Judge No. 1, Cachar at Silchar. Subsequent thereto, the said suit was endorsed to the Court of the learned Civil Judge (Senior Division) No.2, Cachar at Silchar for disposal. In the said suit, various parties were arrayed including the mother of the petitioner herein as the proforma defendant No.27.

4. At the outset, Mr. M. H. Laskar, the learned counsel appearing on behalf of the plaintiffs submitted that the plaintiffs have no quarrel with the right of the proforma defendant No.27 in respect to 1 katha of land in Dag No.705 of Patta No.321, and as such, it is submitted by the learned counsel for the plaintiffs that in the said suit the mother of the petitioner was arrayed as a proforma defendant No.27.

5. In the backdrop of the above, let this Court now consider the case of the petitioner. The suit being Title Suit No.16/2012 upon being filed summons were issued. The record reveals that the summons upon being duly served, the learned Trial Court vide an order dated 13.03.2012 decided to proceed ex-parte against the proforma defendants. In the meantime, while the suit was pending, the proforma defendant No.27 expired on 19.12.2015. Subsequent thereto, after five years on 31.10.2019, the petitioner filed an application under Order I Rule 8(a) of the Code of Civil Procedure, 1908 (for short, 'the Code') read with Order IX Rule 7 and under Section 151 of the Code stating interalia that the service was not properly meted out against the proforma defendant No.27 and she died on 19.12.2015, and under such circumstances, the petitioner be impleaded in the suit being the legal representative of the proforma defendant No.27 by vacating the ex-parte proceedings and further the petitioner be allowed to file the written statement for proper adjudication of the suit. The said application was rejected vide the impugned order dated 10.05.2024, and it is under such circumstances, the present application has been filed.

6. This Court has duly taken note of the impugned order dated 10.05.2024 and the reasons so assigned in the opinion of this Court are not such which this Court feels it necessary to exercise its supervisory jurisdiction, more so, when the plaintiffs have duly admitted that the plaintiffs do not claim any right over the 1 katha of land presently in occupation of the petitioner who is the son of the proforma defendant No.27. Apart from that, it is also relevant to take note of that in the said suit so filed by the plaintiffs, the plaintiffs have sought for a preliminary decree initially and thereupon for passing of a final decree. It is well settled that when a preliminary decree is passed, the Collector or any Gazetted Officer subordinate to the Collector deputed by him has to carry out the necessary enquiries while making the partition and thereupon a report would be submitted on the basis of which the final decree would be passed.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=bzPoyUlszYLCUcCpirIpqIfgqfZ3ENVPe0Pwvwy0ChAlf%2FH6p3A2ze0WmdL9ycws&caseno=CRP(IO)/195/2024&cCode=1&cino=GAHC010118772024&state_code=6&appFlag=)

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