Samiruddin v. Musst Anuwara Begum and 4 Ors

ORDER

27.09.2024

Heard Mr. M. Hossain, learned counsel for the petitioner.

¶2In this petition, under Article 227 of the Constitution of India, the petitioner has put to challenge the correctness or otherwise of the impugned order dated

08.07.2024, passed in Title Suit No. 08/2024 and also the impugned order dated

08.07.2024, passed in Misc. (J) Case No. 02/2024, by the learned Civil Judge (Junior Division), No. 1, Nagaon.

¶3Mr. Hossain, learned counsel for the petitioner submits that the present respondents have instituted one suit, being Title Suit No. 08/2024, before the learned Page No.# 3/4 Civil Judge (Junior Division), No. 1, Nagaon. Wherein, the learned trial court has issued summon to the present petitioner. But, he did not receive the summon. Later on, he came to know from one Ramjan Ali, who is the profoma defendant in the suit, on 19.03.2024, about the said suit filed by the respondents. Mr. Hossain further submits that having aware of filing of the said suit, the petitioner appeared before the learned trial court and filed a petition on 20.03.2024, along with written statement for vacating the ex-parte order and to allow him to contest the suit. But, vide order dated 08.07.2024, the learned trial court has dismissed the petition, on the basis of a report submitted by the process server that the petitioner has refused to accept the summon from the process server. Thereafter, the learned trial court had proceeded to hear the matter ex-parte. Mr. Hossain also submits that the impugned order is illegal and arbitrary as the learned trial court has accepted the report of the process server in contravention of the Order 5 Rules 17 & 19 of the C.P.C. and therefore, it is contended to set aside and quashed the impugned order

08.07.2024, passed in Title Suit No. 08/2024 and also the impugned order dated

08.07.2024, passed in Misc. (J) Case No. 02/2024, by the learned Civil Judge (Junior Division), No. 1, Nagaon and to allow the present petitioner to contest the said suit filed by the respondents.

¶4Having heard the submission of learned counsel for the petitioner, I have carefully gone through the petition as well as the documents placed on record and also perused the impugned order dated 08.07.2024, passed in Title Suit No. 08/2024 and also the impugned order dated 08.07.2024, passed in Misc. (J) Case No. 02/2024, by the learned Civil Judge (Junior Division), No. 1, Nagaon.

¶5It appears that the learned trial court, on the basis of a report furnished by the process server, which is annexed with the petition, at page No. 93, has decided to proceed with the matter against the petitioner ex-parte. The report of the process server indicates that the petitioner had refused to accept the notice. But, it appears that the process server was not examined as required under Order 5 Rule 19 of the C.P.C. and also the report of the process server is not supported by any affidavit. Page No.# 4/4

¶6Thus, having examined the impugned order, in the light of the relevant provisions, this court is of the view that the same fails to withstand the legal scrutiny and therefore, the same requires to be interfered with.

¶7Accordingly, the impugned order dated 08.07.2024, stands set aside and quashed. Consequently, the order dated 06.03.2024, stands vacated. It is provided that the learned trial court shall accept the written statement filed by the present petitioner and thereafter, to proceed with the matter in accordance with law.

¶8In terms of above, this petition stands disposed of, at this motion stage itself.

JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010169392024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCRP(IO)/308/2024o SAMIRUDDINo S/O-oLT.oKALIMUDDIN,o R/S.-oMAGURMARI,o P.O.-oKANDHULIMARI,o P.S.-oDHING,oDISTRICT-oNAGAON,o ASSAM,oPIN-o782123. VERSUSo MUSSToANUWARAoBEGUMoANDo4oORSo W/O-oLT.oTAMIZUDDIN,o R/O-oMAGURMARI,o P.O.-oKANDHULIMARI,o P.S.-oDHING,oDISTRICT-oNAGAON,o ASSAM,oPIN-o782123. 2:BABULoHAZARIKA oS/O-oLT.oTAMIZUDDIN oR/O-oMAGURMARI oP.O.-oKANDHULIMARI oP.S.-oDHING oDISTRICT-oNAGAON oASSAM oPIN-o782123. 3:MONUWARAoBEGUM oW/O-oABDULoWAHIDoCHOUDHURY oD/O-oLT.oKALIMUDDIN oR/O-oSAIMORAoBORI oP.O.-oKANDHULIMARI oP.S.-oDHING oDISTRICT-oNAGAON oASSAM oPIN-o782123. Page No.# 2/4 4:JARINA KHATUN W/O- LT. SUKUR ALI D/O- LT. KALIMUDDIN R/O- SONARIGAON NEAR MASJID P.O.- SONARIGAON P.S.- DHING DISTRICT- NAGAON ASSAM PIN- 782123. 5:MUSST. RASHIDA KHATUN W/O- LT. ABDUL RAHIM D/O- LT. KALIMUDDIN R/O- JURIA COLONY JALAH P.O. AND P.S.- JURIA DISTRICT- NAGAON ASSAM PIN- 782124 Advocate for the Petitioner : M HOSSAIN, MR J HUSSAIN,MD A WADUD Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN