Page No.# 1/4 GAHC010013102024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : MACApp./83/2024 ANITA TIRU W/O LT. ROBIN TIRU, VILL.- KAHIPATHAR, P.S.- N. LAKHIMPUR, DIST.- LAKHIMPUR, ASSAM. VERSUS HIBU TADEY AND ANR. S/O HIBU TUBEY, R/O HONG, P.S. AND P.O.- ZERO, DIST.- LOWER SUBANSIRI ARUNACHAL PRADESH. 2:EXECUTIVE ENGINEER P.W.D CHANGLANG PWD DIVISION P.O. AND P.S.- CHANGLANG DIST.- CHANGLANG ARUNACHAL PRADESH Advocate for the Petitioner : B R DAS, MS M BHARATI Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 24.08.2026 [1] Heard Mr. B.R. Das, the learned counsel for Page No.# 2/4 the appellant. [2] On perusal of the order dated 05.02.2026, it appears that the notice issued to respondent No. 2 has been held to be duly served by this court on that day and as regards, notice upon respondent No. 1, the appellant has submitted the affidavit-in-compliance regarding publication of the notice in the newspaper as was directed by this court. [3] On perusal of the affidavit as well as newspaper annexed therewith, this court is of the considered opinion that the notice on respondent No. 1 is held to be duly served through substituted mode. [4] This appeal under Section 173 of the M.V. Act, 1988, has been filed by the appellant, impugning the order dated 15.09.2023, passed by the MACT No. 1, Kamrup(M) in MAC Case No. 01/2018, whereby the application filed by the present appellant under Order 9 Rule 4 of the Code of Civil Procedure, 1908 for restoration of MAC Case No. 06/2019 was dismissed. [5] The learned counsel for the appellant submits that the impugned order of dismissal of Misc. Case No. 04/2023 was passed by the Tribunal due to absence of the engaged counsel for the petitioner before the court on that day. He submits that the petitioner’s counsel was present before the Tribunal on 19.08.2023, however, on that day, the opposite party Nos. 1 and 2 Page No.# 3/4 were absent and as such, the case was fixed by the Tribunal on 15.09.2023. He submits that on 15.09.2023, the engaged counsel for the petitioner was busy in some another court. [6] Surprisingly, the present engaged counsel for the appellant was the engaged counsel for the appellant before the Tribunal in Misc. Case No. 04/2023 and the lapse committed by him had been fairly admitted by him. [7] It appears that the Misc. Case No. 04/2023 was not dismissed by the Tribunal on merit of the case, but only due to the default of the engaged counsel for the petitioner to present himself before the Tribunal when the matter was called. Apparently, there appears to be no lapse on the part of the present petitioner, but the apparent lapse on the part of the engaged counsel for the petitioner is there in Misc. Case No. 04/2023. As such, this court is inclined to allow this appeal and set aside the order dated 15.09.2023, passed by the MACT No. 1, Kamrup(M) in MAC Case No. 01/2018, subject to payment of a cost of Rs. 5,000/- by the engaged counsel Mr. B.R. Das to the petitioner of Misc. Case No. 04/2023 before the Tribunal. The Tribunal shall hear the application filed by the present appellant under Order 9 Rule 4 of the Code of Civil Procedure, 1908 after affording opportunities to both sides and, thereafter, Page No.# 4/4 decide the matter on merits. [8] This appeal is, accordingly, disposed of. [9] Let a copy of this order be furnished to the court of the learned Additional District Judge (FTC)-cum- Member, MACT, Lakhimpur, North Lakhimpur by the Registry of this court. JUDGE Comparing Assistant