RAFIQUDDIN AHMED ALIAS RICKBABA Vs. LAKHESWAR DUTTA

JUDGEMENT

(1.) This application under Article 227 of the Constitution of India is directed against the order dated 10.5.2006 passed by the learned Civil Judge (Sr. Division), No. 2 Kamrup, Guwahati in Misc. (J) Case No. 220/2005 refusing to condone the delay towards restoration of the suit in question which was dismissed for default.

(2.) The petitioner as the plaintiff instituted Title Suit No. 166/2003 against the defendant i.e. the respondent herein in respect of the suit property praying for a decree of permanent injunction restraining the defendant from interfering with the possession of the plaintiff over the suit land and for a declaration that the plaintiff has the right to possess and enjoy the suit land being the owner of the same. The defendant/respondent has responded to the notice issued in the suit by filing his written statement contending interalia that the suit is bad for non-joinder of necessary party and that the suit has been filed with false statement regarding claim of ownership.

(3.) It appears that the defendant/respondent made a prayer for deletion of his name on ground of being not a necessary party to the suit. However, the same was rejected seeking a review of which he filed an application. The said application was dismissed by order dated 7.4.2005. However, we are not concerned with this aspect of the matter in the present proceeding. The plaintiff did not appear before the Court on 9.3.2005. However, his prayer for amendment of the plaint by way of impleading party defendants was allowed upon recording the no objection of the defendant/respondent. It appears that although the prayer for impleading the party defendant was allowed, the plaintiff/petitioner did not take any step in the matter and the same was recorded in the order dated 19.3.2005 on which date also, the plaintiff/ petitioner did not appear, nor tookany step. Thereafter the matter was fixed on 7.4.2005 for hearing on the review petition filed by the defendant/respondent. It appears that on that day also there was no appearance on behalf of the plaintift/petitioner. However, the prayer for review made by the defendant/respondent was rejected and the matter was fixed on 26.5.2005 or personal appearance of the plaintiff/petitioner.