CRP 214/2011 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY Heard Mr. P.K. Choudhury, in person on his behalf as well as on behalf of the ot her petitioners. Heard as well Mr. N. Choudhury, learned counsel for the opposi te party. The factual background, in short needs to be sketched to appropriately analyse t he arguments advanced. The petitioners had instituted Title Suit No.103/2004 in the Court of the Civil Judge, Nagaon against the opposite party. On the receipt of summons, they (oppo site party) entered appearance and filed their written statement, whereafter, is sues were framed, on the basis of the pleadings. While the matter rested at that, an application under section 24 of the Civil Pr ocedure Code (for short hereinafter referred to as the Code) was filed by the pe titioners before this Court seeking transfer of the suit to any other competent Court at Guwahati in the district of Kamrup. The ground urged was apprehension of denial of justice by the Court of the learned Civil Judge, Nagaon, in which t he suit had been instituted. By order dated 01.06.2010, this application which was registered as Tr.P(C) No.4 0/2009 was disposed of by directing the learned District Judge, Nagaon to pass n ecessary orders for transferring the suit from the court of the learned Civil Ju dge, Nagaon to that of Munsiff No.1, Nagaon for disposal. This was solely on th e consideration that meanwhile, the pecuniary jurisdiction of the Court of the l earned Munsiff had been raised Rs.30,000/-.The parties were thereby directed to produce the copy of the said order before the learned District Judge, Nagaon for passing necessary order(s). By order dated 23.07.2010, the learned District Judge, Nagaon in compliance of t he above order of this Court transferred the suit from the Court of the learned Civil Judge, Nagaon to that of the learned Munsiff No.1, Nagaon fixing the date of appearance of the parties to be 10.08.2010. On that date i.e. on 10.08.2010, the Munsiff No.1, Nagaon recorded the presence of the plaintiff/petitioners and the absence of the opposite party without any step. The suit was therefore, or dered to proceed ex parte against the opposite party-defendants. Liberty was gra nted to the petitioner-plaintiffs to seek amendment of the plaint as it was plea ded that meanwhile, they had been dispossessed from the suit land. The opposite party-defendants appeared in the Court of the learned Munsiff No.1, Nagaon on 15.09.2010 and filed an application under Order IX Rule 7 of the Code , read with Section 151 of the Code to set aside of the order of the ex parte he aring. They pleaded inter alia that this Court while disposing of the transfer petition on 01.06.2010 had not fixed any date for appearance before the learned trial Court and that the learned District Judge, Nagaon did not issue any notice to them to this effect. They, therefore, asserted that they had remained unawar e of the intervening developments culminating in the order dated 10.08.2010. The y averred as well that after the order of the suit in terms of the court, no inf ormation had been received in that regard from any quarter. The learned counsel was also not informed about the transfer of the suit. They maintained that the order of ex parte hearing if not recalled, they would suffer irreparable loss th ey having submitted their written statement and were prepared to contest the sui t on merits. No written objection was filed by the petitioners against the sai d application which was verified in accordance with law. The learned trial Court by order dated 15.09.2010 having regard to the rival v ersions, the materials on record as well as the decision of the Apex Court in Sa ngram Singh, v. Election Tribunal Kotah and another, AIR 1955 SC 425 allowed the opposite party to participate in the suit from that stage and also permitted th em to file their written objection to the petitioners’ prayer for amendment of t he plaint fixing 07.10.2010 for objection hearing in connection therewith. Being dissatisfied with the order dated 15.09.2010, the petitioners filed an app lication for review thereof under Section 114 of the Code contending, in substan ce, that the opposite party had obtained the same by suppressing material facts which not only constituted contempt of higher courts including this Court but al so grossly disentitled them to any further opportunity of contesting the suit. By the impugned order dated 10.05.2011, the prayer for review having been reject ed, the petitioners have assailed the same along with the one dated 15.09.2010 b efore the Court. Mr. Choudhury has persuasively argued that the learned Court below had manifestl y erred on the face of the records in permitting the opposite party-defendant to participate in the suit. According to him, not only their endeavour to do so as on 15.09.2010 was barred by limitation, it was in contemptuous disregard to t he orders of the higher courts including this Court. Mr. Choudhury submitted th at as the opposite party-defendants were visibly guilty of contempt of Court, no such opportunity ought to have been granted to them before they were made to pu rge the same. That the reentry of the opposite party-defendants is also barred b y res judicata has been emphatically urged by Mr. Choudhury contending that it i s so as they did not challenge the order dated 10.08.2010 before any higher foru m. According to him, the learned trial Court had misread the decision rendered by the Apex Court in Sangram Singh, v. Election Tribunal Kotah and another (Supr a), more particularly on the aspect of the duration of the delay and that theref ore the impugned orders are liable to interfered with in the interest of justice . He further argued that the learned trial court has ignored the evidence recor ded in the suit in passing the impugned orders and on that count as well the sam e are non est in law. The learned counsel for the opposite party-defendants as against this has argued that as they meanwhile had filed their written statement and issues had been fr amed on the basis thereof, the order dated 15.09.2010 having been passed in exer cise of the judicious discretion of the trial Court, no interference is warrante d in the facts and circumstances of the case. While clarifying that no evidence in the suit has yet been recorded, Mr. Choudhury has argued that at no point of time after the transfer petition by this Court was disposed of on 01.06.2010, a ny notice had been issued or information furnished by either the learned Distric t Judge, Nagaon or the learned Munsiff No.1, Nagaon to them about the successive stages in the suit and thus their absence on 10.08.2010 can by no means be deno unced as wilful and/or lacking in bona fide. The impugned orders having been pa ssed to further the cause of justice, according to Mr. Choudhury any interferenc e therewith would amount to abuse the process of this Court. After hearing the learned counsel for the parties and on a consideration of the material on record, I am inclined to sustain the pleas raised on behalf of the o pposite party-defendants. The order dated 10.06.2010 of this Court apparently d oes not record any date on which the parties were directed to appear before the learned District Judge, Nagaon to take the order of transfer of the suit from th e Court of the learned Civil Judge, Nagaon to that of the learned Munsiff No.1, Nagaon. The learned District Judge, Nagaon in compliance of the order of this C ourt on 23.07.2010 effected the transfer and directed the learned counsel for th e parties to appear before the learned Munsiff No.1, Nagaon on 10.08.2010. The order dated 23.07.2010 also does not clearly reflect the presence of either the opposite party-defendants or their learned counsel. That the opposite party-defe ndants had been absent in the Court of the learned Munsiff No.1, Nagaon in suit on 10.08.2010 is more than apparent from the order passed on that day. This per se however does not signify that the absence was either wilful with the knowled ge of the date of the suit so fixed or due to casual and deliberate negligence o n their part to participate in the proceedings thereof. That the opposite party- defendants were unaware of the dates i.e. 23.07.2010 and 10.08.2010 has been sta ted in categorical terms by them in their application under Order 9 Rule 7 of th e Code. They have asserted further that at no point of time they had received a ny notice from the Court of the learned District Judge, Nagaon or had been infor med about such transfer. The statements on the face of the records are supported by a verification in terms of the requirement of the Code. No written objection to this application had been filed. In the above view of the matter, the reference to the decision of the Apex Court in Sangram Singh, v. Election Tribunal Kotah and another (Supra) and the reaso n recorded in support of the order dated 15.09.2010 cannot be faulted with. Eve n otherwise in the facts and circumstances of the case, having regard to the pro vision of the Code under which the application had been filed by the opposite pa rty-defendants, it was within the jurisdiction of the learned trial court to per mit their further participation in the suit. The reasons cited by the opposite party-defendants in their application under Order 9 Rule 7 of the Code supported by a verification and the assertions to that effect which remained unrefuted, in the estimation of this Court were sufficient to allow them to partake in the suit. This is more so, as meanwhile, they have filed their written statement p rojecting their stand on merits. The learned trial court while rejecting the pra yer for review of the order dated 15.09.2010 had rightly emphasised on the essen tiality of a fair trial by eschewing the rigor of technicalities. Noticeably, i t did leave the petitioners-plaintiffs at liberty to file an appropriate applica tion to pursue their plea of contempt of court against the opposite party-defend ants. Be that as it may, without offering any comment on this segment of the impugned order dated 10.05.2011, suffice it to mention that the contentions raised on beh alf of the petitioners-plaintiffs in the above factual premise do not impel this court to interfere with the orders impugned. The petition lacks in merit and i s dismissed. No costs.