MOIN UDDIN Vs. ABDUL HEKIM

JUDGEMENT

(1.) Heard Mr. SD Purkayastha, learned counsel for the petitioners and Mr. AR Sikdar, learned counsel for the respondents.

(2.) The respondent no.1 as the plaintiff filed Title Suit No.70/2011 in the Court of learned Munsiff, Hojai at Sankardev Nagar against the present petitioners as defendants along with other defendants. The suit was filed for declaration of right, title and interest, confirmation and recovery of possession, cancellation of documents etc. The petitioners as the defendant nos. 1, 2 and 3 filed their written statement contesting the claim of the plaintiff/respondent no.1. The plaintiff/respondent no.1 filed the evidence on affidavit of the witnesses on his behalf. 24.05.2016 was fixed for cross examination of the witnesses of the plaintiff side. The defendants/petitioners remained absent without steps. On 13.07.2016 the witnesses of the plaintiff side were present but there was no representation on behalf of the defendants/petitioners' side. 16.08.2016, 22.09.2016 and 01.11.2016 were fixed for cross examination of the plaintiffs' witnesses. The learned Court below on 01.11.2016 closed the stage of cross examination of the plaintiffs' witnesses and fixed 15.11.2016 for argument. On 15.11.2016, 01.12.2016 and 18.01.2017 though the plaintiff side was present but the argument of the plaintiff side was incomplete. 28.02.2017 was fixed for further argument of the plaintiffs' side. On 28.02.2017 the defendants/petitioners through the counsel filed application under Order IX Rule 13 of the CPC along with another application under Section 5 of the Limitation Act for condonation of delay. In the said application under Order IX Rule 13 CPC the petitioners stated that one Md. A Kuddus, the engaged counsel of the defendants/petitioners was taking steps on their behalf and as because he fell serious illness due to major infection in his eyes he could not take steps on behalf of the defendants. The defendants/petitioners are rustic villagers and could not understand the procedural law and as such prayed before the Court to allow the defendants/petitioners to cross examine the witnesses of the plaintiffs' side.

(3.) The plaintiff/respondent no.1 filed written objection stating that the provision of Order IX Rule 13 CPC is not applicable inasmuch as no exparte decree was passed rather the matter proceeded ex parte on the basis of an order passed by the Court below nor there is any mention of the date of default on their part in the said petition. No medical document in support of the contention that the engaged counsel was suffering from illness was produced. After the said objection in respect of non-applicability of the provision under Order IX Rule 13 of the CPC was raised, a separate petition under Section 151 of the CPC was filed in order to invoke the provision under Order IX Rule 7 of the CPC. The learned Court below vide order dated 13.03.2018 passed in Misc. (J) Case No.28/2017 dismissed the said petition by holding as follows:-