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2017 DIGILAW 73 (MEG)

Silan Lawryniang v. Timel Synrem

2017-11-06

DINESH MAHESHWARI

body2017
JUDGMENT : Dinesh Maheshwari, J. This petition is directed against the order dated 23.03.2017 as passed by the learned Judge, District Council Court, Shillong in T.S. No. 26 of 2015, whereby the said suit filed by the plaintiff/petitioner was dismissed in default of appearance. The petitioner has also stated the alleged want of action on the part of the Court concerned to expeditiously deal with the application for restoration as filed by him, being Misc. Case No. 225 of 2017. 2. This petition was entertained on 26.05.2017 with an interim order that the defendant/respondent shall not disturb the suit premises. However, learned counsel for the petitioner Shri K. Paul submits today that since after filing of this revision petition, relevant subsequent events have taken place inasmuch as the said application for restoration was ultimately considered and allowed by the Trial Court on 21.09.2017. The learned counsel has placed a copy of the order dated 21.09.2017 for perusal of the Court wherefrom, it is made out that on the application seeking restoration, the defendant/respondent did not appear; and, therefore, the application was allowed and the suit was restored to the file. Obviously, in view of this order of the Trial Court, the grievance as stated in this revision petition no longer survives. Learned counsel for the petitioner frankly submits that in view of such developments, the petitioner does not want to press on this revision petition. 3. Learned counsel for the respondent Shri BK Deb Roy, however, states the predicament that by the said order dated 21.09.2017, the Trial Court not only restored the suit to the file but even set the proceedings in the suit ex-parte; and this would cause irreparable injury to the defendant/respondent. Shri BK Deb Roy submits that in the given circumstances, the defendant/respondent may be permitted to contest the suit by filing his written statement, which he undertakes to file within a week from today. 4. Learned counsel for the petitioner Shri K. Paul, in all fairness, has not opposed the prayer made on behalf of the defendant/respondent but with the submissions that the defendant/respondent has not filed the written statement until now and is not entitled to delay the proceedings, and, therefore, if at all the written statement is permitted at this stage, the same ought to be filed at the earliest. 5. 5. In the totality of circumstances of the case, though such application for setting aside ex-parte and for permission to file the written statement seems not to have been filed before the Trial Court but it does not appear necessary to keep all these aspects open for contest any further. This Court is clearly of the view that protraction of the proceedings for the purpose of dealing with such procedural aspects needs to be avoided. 6. It remains fundamental that the rules of procedure are essentially intended to sub-serve the cause of justice rather than punishing the parties for some mistakes here or there in the conduct of the case. It is noticed that on 23.03.2017, the plaintiff failed to appear and, therefore, the suit was dismissed in default. On 21.09.2017, the matter was posted for consideration of the application for restoration. On that date, if the defendant/respondent did not appear to contest the said application, the Court could have allowed the restoration on being satisfied with the ground but, on the same day and with the same order, the suit could not have been set ex-parte against the defendant. Therefore, it would be just and proper to annul the part of the order dated 21.09.2017 in so far the proceedings have been set ex-parte against the defendant/respondent. 7. So far the question of filing the written statement is concerned, although it appears that the suit was filed in the year 2015 and the written statement has not been filed yet, but in the overall circumstances and looking to the fact that the suit was dismissed in default and the parties had earlier been contesting an application for interim relief, it cannot be said that the defendant is not interested in contesting the suit or is avoiding its trial. Moreover, the suit was dismissed in default on 23.03.2017 and was restored only on 21.09.2017. Therefore, it would be just and proper to grant some time to the defendant/respondent for filing the written statement. 8. In view of the above, while accepting the prayer made by learned counsel Shri BK Deb Roy, the ex-parte proceedings in the said Title Suit No. 26 of 2015 are set aside; and the defendant/respondent is granted a week's time for filing written statement. The defendant/respondent shall file such written statement on or before 13.11.2017 in the Trial Court. 9. In view of the above, while accepting the prayer made by learned counsel Shri BK Deb Roy, the ex-parte proceedings in the said Title Suit No. 26 of 2015 are set aside; and the defendant/respondent is granted a week's time for filing written statement. The defendant/respondent shall file such written statement on or before 13.11.2017 in the Trial Court. 9. Learned counsel for the parties have informed that the Trial Court has, after setting the proceedings ex-parte, fixed the matter on 29.11.2017 for plaintiff's evidence. The proceedings in Title Suit No. 26 of 2015 shall now stand pre-owned to 13.11.2017 for the purpose of filing written statement. It is made clear that no further time for filing written statement shall be granted to the defendant in this matter. The parties through their respective counsel shall stand at notice to appear before the Trial Court on 13.11.2017. The Trial Court shall, thereafter, proceed in accordance with law while keeping in view the observations foregoing. 10. This revision petition stands disposed of accordingly. No costs.