CRP 426/2007 BEFORE HON’BLE MR JUSTICE B.P. KATAKEY Heard Mr. RC Saikia, learned counsel for the petitioner. None appears fo r the respondent despite service of notice. The petitioner, who is the applicant in Misc. Case No. 9/91, registered on the basis of the application filed under Section 144 CPC for restitution of p ossession of the suit property, by the present application has challenged the or der dated 23.6.1995 passed by the learned Munsiff, Udalguri rejecting the Petiti on No. 52/1995, filed praying for restoration of Misc. Case No. 9/1991, which wa s dismissed for default on 3.1.1995, and also dismissing the Misc. (J) Case No. 2/1995, registered on the basis of the application filed by the present petition er under Order 6 Rule 17 CPC praying for amendment of the pleadings in the said restoration application (Petition No. 52/1995). The learned Court below by the impugned order dated 23.6.1995 has reject ed both the petition No. 52/1995 as well as the Misc. (J) Case No. 2/1995 on the ground that the petitioner ought to have been more vigilant in filing the petit ion No. 52/1995 by adding all the necessary parties and the petitioner being neg ligent, the prayer for amendment cannot be allowed. The petition No. 52/1995 has been rejected on the ground that the learned counsel engaged by him has failed to take steps in the case i.e. failed to appear before the court on 3.1.1995 tho ugh the petitioner is not personally required to appear before the court on that day and hence his absence from Udalguri cannot be the ground for filing the Mis c. Case No. 52/1995 for restoration of the petition No. 9/1991 to file. Mr. Saikia, learned counsel for the petitioner has submitted that the le arned court below ought not to have rejected the Misc. (J) Case No. 2/1995 filed for amendment of the pleadings, as two of the opposite parties namely Gobindo M ahanta and Dhaneswar Shah in Misc. case No. 9/1991 were inadvertently not made p arties in the Petition No. 52/1995 i.e. the petition filed for restoration of th e said Misc. case to file which was dismissed on 3.1.1995. According to the lear ned counsel as it was an inadvertent mistake the learned court below ought to ha ve allowed the amendment. Relating to the grounds on which the petition No. 52/1995 has been dismi ssed, Mr. Saikia, learned counsel for the petitioner has submitted that the lear ned court below having found that the petitioner was not required to appear, whe n the Misc. case 9/1991 was taken up for consideration, the said petition ought not to have dismissed, as the learned court below has found that it was the faul t of the learned counsel engaged by the petitioner and not the fault of the peti tioner for which the Misc. case No. 9/1991 was dismissed for default on 3.1.1995 . It appears from the materials made available on record that Misc. Case N o. 9/1991 was filed by the present petitioner seeking restitution of possession of the suit property after Title Suit No. 19/1983 was dismissed for default, whe rein by virtue of the appointment of the Receivers on 8.11.1983, the property in possession of the petitioner was taken away, though the said order appointing t he Receivers was subsequently set aside by the appellate court on 4.8.1990. In t he said application i.e. Misc. Case No. 9/1991 apart from the present respondent two other persons namely; Gobindo Mahanta and Dhaneswar Shah, the Receivers app ointed vide order dated 8.11.1983, were made parties. The said Misc. case was, h owever, dismissed for default on 3.1.1995 for failure of the learned counsel eng aged by the petitioner to take steps. The petitioner, thereafter, filed the Peti tion No. 52/1995 on 11.1.1995 for restoration of the Misc. Case No. 9/1991 to fi le contending that on the date fixed i.e. on 3.1.1995 his counsel could not appe ar and also he could not appear he being at Benaras. In the said petition the af oresaid two persons namely; Gobindo Mahanta and Dhaneswar Shah were not made par ties though they were made parties in Misc. Case No. 9/1991. The said defect was sought to be rectified by way of amendment under Order 6 Rule 17. In the said a pplication seeking amendment it has also been stated that because of the inadver tent mistake the names of those persons were not included as opposite parties an d as such the amendment should be allowed. As noticed above, both the petitions have been rejected by the learned c ourt below. The learned court below, as noticed above, has rejected Misc. (J) Ca se No. 2/1995 on the ground that the petitioner ought to have been more vigilant in making parties. It is an admitted position that in the petition No. 52/1995 filed on 11. 1.1995 the aforesaid two persons namely, Gobindo Mahanta and Dhaneswar Shah were not made parties. The petitioner thereafter filed Misc. (J) Case No. 2/1995 on 23.6.1995 for their addition as opposite parties the same being an inadvertent m istake. The learned court below ought not to have refused to allow the prayer fo r amendment as sought for in Misc. (J) Case No. 2/1995, mistake being inadverten t, more so when the petitioner in Misc. Case No. 9/1991 has sought for restituti on of possession. It also appears from the impugned order that the petition No. 52/1995 ha s been dismissed on the ground that non availability of the petitioner at Udalgu ri cannot be the ground for restoration when the petitioner is not required to a ppear on that date i.e. on 3.1.1995 and it was because of the fault of the learn ed counsel that the said Misc. Case was dismissed for default on 3.1.1995. The l earned court below having found that there was no negligence or laches or fault on the part of the petitioner and the Misc. Case No. 9/1991 was dismissed becaus e of the fault of the learned counsel engaged by the petitioner, ought not to ha ve rejected the petition being Petition No. 52/1995 as the petitioner cannot be made to suffer for the fault of his counsel. The learned court below, therefore, ought to have allowed the applicatio n filed under Order 6 Rule 17 of the CPC i.e. Misc. (J) Case No. 2/1995 and ther eafter, upon issuing the notice on the parties sought to be impleaded, hear and dispose of the Petition No. 52/1995, which has not been done in the present case . In view of the above, the order dated 23.6.1995 is set aside. Misc. (J) Case No. 2/1995 stands allowed. Sri Gobindo Mahanta and Sri Dhaneswar Shah are i mpleaded as opposite party Nos. 2 and 3 in Petition No. 52/1995. The learned court below shall now issue notice on the newly impleaded op posite parties apart from the present respondent and proceed to hear and decide the Petition No. 52/1995 on merit and in accordance with law. The revision petition is accordingly allowed. No cost.