Md. Sahibur Rahman vs. Md. Dilwar Hussain

CRP 122/2016 BEFORE HON'BLE MR. JUSTICE N. CHAUDHURY

Heard Mr. R. Dutta, learned counsel for the petitioner.

By filing this application under Article 227 of the Constitution of Indi a the petitioner has challenged the judgment and order dated 17.11.2015 passed b y learned Civil Judge, Sonitpur, Tezpur in Misc. Appeal No.3/2013 whereby the ap peal filed by the present petitioner under Order XLIII Rule 1(d) of the Code of Civil Procedure was rejected by the learned appellate Court.

On going through the impugned judgment and order it appears that the pre sent petitioner was arrayed as defendant in Title Suit No.69/2010 of the court o f Munsiff No.1 at Tezpur. The defendant appeared therein by engaging a learned c ounsel and prayed for time for filing written statement which was not allowed. S ubsequently, the present petitioner did not appear before the Court to cross-exa mine the witness and/or to argue the case. Under such circumstances the learned Munsiff passed a decree on 30.06.2011. The petitioner thereafter filed an applic ation under Order IX Rule 13 of the CPC. That application was also rejected by the learned Munsiff No.06.05.2013 in Misc.(J) Case No.136/2011. The petitioner t hereafter preferred an appeal before the court of learned Civil Judge at Tezpur vide Misc. Appeal No.3/21013 under Order XLIII Rule 1(d) of the Code of Civil Pr ocedure. The appellate court by the impugned judgment and order considered the case of the petitioner and thereafter did not find any merit and consequently di smissed the Misc. Appeal. By preferring this revision petition the present peti tioner has challenged both the orders passed by the courts below.

Having heard the learned counsel for the petitioner and on perusal of th e materials brought on record it does not appear that the case in hand warrants interference under Article 227 of the Constitution of India. Accordingly, the pe tition stands rejected.

Dismissal of this application refusing to interfere with the orders pass ed by the learned courts below in the matter arising from an application under O rder IX Rule 13 of the CPC shall not debar the present petitioner to challenge t he impugned decree on merit under Section 96 of the Code of Civil Procedure. Obv iously, the period spent in pursuing other remedies till date shall not be consi dered in the light of provision of Section 14 of the Limitation Act, 1963 provid ed an application praying for condonation of delay is filed.

This Civil Revision Petition stands disposed of accordingly.