RAJIV KUMAR Vs. ASHOK KUMAR AGGARWAL

JUDGEMENT

(1.) By this application under Section 115 read with Section 151 of the Code of Civil Procedure, the petitioners who were the defendants in Title Suit No. 123 of 2008 have challenged the order dated 08.08.2012 passed by the learned Civil Judge No.2, Kamrup, in Misc.(J) Case No. 86 of 2011 restoring the case to file under Order IX Rule 9 of the Code of Civil Procedure.

(2.) The respondents as plaintiffs instituted Title Suit No. 123 of 2008 in the Court of Civil Judge (Senior Division) No.1,Kamrup, Guwahati, against the present petitioners and others praying for a decree for declaring that public notice issued in the 'Hindustan Times' on 06.06.2007 is false, defamatory and malicious and that a decree be passed for a sum of Rs.25,00,00,000/- against the defendants towards damages and compensation for such defamation and for future interest apart from decree of permanent injunction. During pendency of the suit, the learned engaged counsel of the plaintiff informed the Court on 06.05.2010 about his intention to withdraw from the case on the next date. Accordingly, the case was fixed on 14.06.2010 for steps before preemptory hearing. On that day although the Presiding Officer of the Court was on leave, but both sides were represent through their learned counsel and learned counsel for the plaintiff filed a petition being No. 1713 of 2010 under Order III Rule 4 (2) of the Code of Civil Procedure praying for granting leave to determine appointment as pleader for the plaintiff. This application was verified by three advocates appointed by the plaintiff stating that on 05.12.2009 advocate of the plaintiff Sri Satyen Sarma wrote a registered letter with acknowledgement due to the plaintiff asking for the pending professional bills and as there was no response from the side of the plaintiff it was not possible to conduct the suit and the Vakalatnama. The A/D card was duly returned to the sender. On request by the plaintiff the Vakalatnama was not withdrawn. Thereafter, another registered letter with A/D was sent on 24.03.2010 to the plaintiff and that letter was returned unserved with postal remark "addressee not found". However, thereafter one Anupam Bordoloi collected the brief from Satyen Sarma advocate on 31.05.2010 acknowledging receipt on behalf of the plaintiff and so, the learned counsel prayed for leave to determine their Vakalatnama from the suit with a consequent notice to the plaintiff in this respect.

(3.) The day this application was filed, the Presiding Officer of this Court was on leave and so, 23.07.2010 was fixed for necessary order and appearance of the plaintiff. On the next date, i.e. 23.07.2010 the plaintiff was absent without any step but defendants were present through their counsel and so Court issued notice to the plaintiff fixing 27.08.2010 for notice report and for appearance of the plaintiff. This order was passed under signature of the Presiding Officer. On 27.08.2010 the plaintiff continued to remain absent without any steps but defendants were present and the Civil judge No.2 passed the following order: