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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
DEVASHIS BARUAH, J.
Assam Gramin Vikash Bank Represented By The Branch Head – Appellant
Versus
Prakash Borah S/o Late Purno Borah – Respondent
CRP(IO) 176 of 2022
Decided on : 06-08-2022
Constitution of India, 1950 - Article 227 - Civil Procedural Code, 1908 - Order IX Rule 7, 6 - Order VI Rule 17 - Order XXI Rule 34 - Limitation Act, 1963 - Article 137 - SARFAESI Act, 2002 - Title Suit - Power of superintendence over all Courts and Tribunals throughout territory by High Courts - Respondent No.1 herein as plaintiff has filed the suit being Title Suit against the Proforma Respondent herein. The case of the plaintiff in the said suit is that the proforma defendant herein is the owner of a plot of land measuring 1 katha 10 lecha covered by Patta - Fundamentals of proceeding ex-parte against a defendant in a suit on the face of it, is contrary to the well established principles of law. (Para 18).
Findings of the Court :
defendant cannot be penalized by not permitting him to participate in the suit proceedings if the hearing has not been concluded. Admittedly, the hearing has not started even in the suit and therefore, not to allow the petition for the copy of the amended plaint and to file written statement vide the impugned order is on the face of it in violation to all the tenants of law of civil jurisprudence - learned counsel for the parties submit that the next date in the suit proceedings is for plaintiff evidence. This Court directs the trial Court on the date so fixed to direct the plaintiff in the suit to furnish a copy of the amended plaint along with all documents to the defendant No.2 and thereafter fix a date for filing of written statement by the defendant No.2 in accordance with law.
Result: Petition allowed.
JUDGMENT :
Heard Mr. P. Das, learned counsel for the petitioner and Mr. KK Nandi, learned counsel for the caveator who is the respondent No.1.
2. This is an application under Article 227 of the Constitution challenging the order dated 10.07.2019, the order dated 02.11.2021 as well as the order dated 17.06.2022, passed in Title Suit No.465/2018.
3. Taking into consideration the question involved in the instant proceedings, the instant petition is taken up for disposal at the motion stage.
4. In view of the order which this Court proposes to pass the presence of the proforma defendant is not necessary.
5. The facts of the instant case is that the respondent No.1 herein as plaintiff has filed the suit being Title Suit No.465/2018 against the Proforma Respondent herein. The case of the plaintiff in the said suit is that the proforma defendant herein is the owner of a plot of land measuring 1 katha 10 lecha covered by Patta No.344 (old) 792 (new) Dag No.606/606 (old), 1950 (new) of village No.2, Japorigog Mouza Beltola, district Kamrup (M) Assam.
6. Upon the said land the Proforma Respondent herein started construction of a multistoried RCC building. The plaintiff being interested approached the Proforma Respondent on 20.01.2010 to purchase a duplex and the Proforma Respondent agreed to sell the duplex to the plaintiff and accordingly on 29.01.2010 the plaintiff entered into an agreement with the Proforma Respondent for purchase of the duplex having an area of 1534 sq ft super built up area in the first floor and 1700 sq ft super built up area in the ground floor of RCC building with undivided proportionate share of the land and a car parking space in the ground floor. The said area has been specifically described in the Schedule to the plaint. The total consideration for the said amount was Rs.60,00,000/- out of which the plaintiff had paid an amount of Rs.5,00,000/-as advance on the date of the agreement. It is also the case of the plaintiff that on various dates various amounts has been paid and as on the date of filing of the suit an amount of Rs.55,00,000/-have already been paid out of the total consideration of Rs.60,00,000/-, however, on the ground that the Proforma Respondent was not willing to perform his part of the contract, the suit was filed for specific performance of the contract dated 29.01.2010 thereby directing the Proforma Respondent to execute and register the sale deed for the suit as described in the Schedule below and if the Proforma Respondent neglects or refuses to obey the decree of the Court then the necessary sale deed may be executed by the court for and on behalf of the Proforma Respondent as provided under Order XXI Rule 34 of the CPC. Further to that the plaintiff also prayed for a precept to the Sub Register Kamrup for registration of a sale deed; for delivery of possession of the suit property as well as for permanent injunction.
7. The Proforma Respondent had filed his written statement. In the said written statement, the defendant have also taken a plea that the land is mortgaged with Assam Gramin Vikash Bank, Ganeshguri, Guwahati Branch, the petitioner herein as security for repayment of loan availed by one M/s Pee Bee Associates and as such the question of sale of the Schedule property did not arise.
8. On the basis of the said averments made in the written statement by the defendant/proforma defendant herein, the plaintiff filed an application under Order I Rule 10(2) for impleading the Assam Gramin Vikash Bank, Ganeshguri Branch, Guwahati as defendant in the suit.
9. The trial Court vide an order dated 04.05.2019, allowed the petition under Order I Rule 10(2) of the Code (Petition No.986/2019) and thereby the petitioner herein was impleaded as defendant in the said suit. There was also a direction for making necessary changes in the cause title of the plaint and summons were directed to be issued to the newly impleaded defendant.
10. It however, appears that the summons were duly issued and on the basi
It is not required for a defendant to vacate an order to proceed ex-parte if hearing of the suit has not concluded.
The court emphasized the necessity of allowing a defendant to participate in proceedings, ruling that procedural errors in ex-parte judgments violate principles of natural justice.
Procedural due process requires all parties be notified of court hearings to ensure fair representation in proceedings.
No limitation under Article 137 for Order IX Rule 7 CPC; ex parte parties may participate in ongoing proceedings if good cause shown.
The concept of 'sufficient cause' under Order IX Rule 13 CPC must be judged objectively, and the party seeking to set aside an ex-parte decree must provide a reasonable cause for their non-appearance....
The High Court, exercising its extraordinary jurisdiction under Article 227 of the Constitution of India, cannot reappreciate the evidence or substitute its subjective opinion in place of the finding....
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