TAXLY NORIC SITING Vs. RISHALIN MUKHIM

JUDGEMENT

(1.) This application under Article 227 of the Constitution of India has been filed for declaring the Judgment and Order dtd. 28/8/2015 passed by the Sub-ordinate District Council Court, Shillong as inexecutable and as a nullity in the eye of law and also for setting aside the order dtd. 12/4/2018 passed in MCA No. 17 of 2012 passed by the Judge, District Council Court and also the order dtd. 16/5/2018 passed in Review Misc. Case No. 1 of 2017 by the Additional District Council Court, Shillong. Further prayer has been made for quashing the entire Execution proceedings being Execution Case No. 3 of 2015, re-numbered as Execution Case No. 1 of 2018, pending before the Executing Court/Sub-ordinate District Council Court, Shillong.

(2.) The brief background of facts is that the mother of the respondent since deceased, instituted a Suit being Ejectment Suit No. 1 of 2010, before the District Council Court against the petitioner seeking the eviction of the petitioner from the suit property in question. The Ejectment Suit was not contested by the petitioner, ostensibly for the reason that the engaged counsel had withdrawn himself from the case, and as such by order dtd. 26/9/2011 the same was ordered to proceed ex parte. The plaintiff and the witnesses then completed their depositions by November 2011, and after filing of written arguments on May 2012, the Suit was reserved for pronouncement of final Judgment and Decree. It appears that on the withdrawal of vakalat by the earlier counsel and on receipt of notice from the Court, the petitioner entered appearance and filed a petition for vacating, and for setting aside of the order for ex parte hearing dtd. 26/9/2011. The same then came to be dismissed vide order dtd. 4/9/2012. It is worthwhile to note that in the intervening period, while awaiting the pronouncement of the Judgment and Decree, the original plaintiff died, and a substitution application was then filed by the respondent being petition No. 324 of 2012. The petitioner against the dismissal of the petition for setting aside the order for ex parte hearing, then preferred a Misc. Civil Appeal being MCA No. 17 of 2012 before the First Appellate Court i.e. the Court of the Judge, District Council Court, which after hearing the parties, dismissed the appeal by order dtd. 3/4/2014, and upheld the order dtd. 4/9/2012.

(3.) The learned Trial Court by Judgment and Decree dtd. 28/8/2015, then decreed the Ejectment Suit No. 1 of 2010 in favour of the respondent, whereafter the respondent/decree holder filed an Execution Case being No. 3 of 2015 before the Trial Court for Execution of the Judgment and Decree dtd. 28/8/2015. The petitioner then preferred a revision petition being CRP No. 6 of 2016, challenging the ex parte judgment on the issues of abatement and substitution. Clarification was then sought by this Court, and on the same being furnished that a substitution had indeed been filed, this Court then by order dtd. 13/6/2017, remanded the matter back to the District Council Court for adjudicating the same. It appears that the question of substitution, had been re-agitated by the respondent, which had taken up the matter and the petitioner, in spite receipt of notice and though given several opportunities, did not raise any objection against the same, and the substitution was allowed on 7/2/2017. The order dtd. 7/2/2017, as it appears from the records was never challenged by the petitioner. Misc. Civil Appeal 17 of 2012, filed against the order of ex-parte hearing was thereafter taken up for consideration by the Judge, District Council Court and the petitioner despite receipt of notice, failed to appear and as such by order dtd. 12/4/2018, MCA No. 17 of 2012 was dismissed, and the records was then endorsed to the SubOrdinate District Court, for execution. The petitioner then filed a Review being Review Misc Case 1 of 2017, wherein the Court below affirmed the Judgment and Decree by order dtd. 16/5/2018. This was again followed by an application which appears to have been filed sometime in June 2018, in the Execution Case, wherein the petitioner sought for dismissal of the Suit, which however was not entertained.