Page No.# 1/3 GAHC010105922025 2025:GAU-AS:6888 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : FAO/30/2025 SIMANTA BAISHYA S/O SRI DWIPEN BAISHYA, R/O VILL. R.K. ROAD, SUALKUCHI, P.O. AND P.S. SUALKUCHI, PIN CODE 781103, DIST. KAMRUP, ASSAM, CELL NO 8822234579 VERSUS MANJAY KALITA S/O LATE ANDHURAM KALITA, R/O VILL. SUALKUCHI, P.O. AND P.S. SULAKUCHI, PIN 781103, DIST. KAMRUP, ASSAM. For the Appellant(s) : Mr. A. Sattar, Advocate For the Respondent(s) : None appears BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH ORDER Date : 28.05.2025 This is an appeal filed under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 challenging the order dated 20.03.2025 passed by the learned Court of the Civil Judge (Senior Division), Kamrup at Amingaon Page No.# 2/3 (hereinafter referred to as, “the learned Trial Court”) in Misc (J) Case No. 63/2019 arising out of Misc (J) Case No. 04/2017 and Title Suit No. 02/2017. It is seen that the appeal was filed within the period of limitation. 2. The submission of the learned counsel appearing on behalf of the appellant is that the appellant had submitted the examination-in-chief by way of an affidavit in support of the allegation of violation of the injunction order dated 10.04.2018. The opposite party i.e. the respondent herein did not cross-examine the appellant’s witness. The learned counsel therefore submitted that since the opposite party was granted the opportunity to cross-examine but did not do so, the examination-in-chief on affidavit attains the status of evidence and as such, the learned Trial Court was not justified in dismissing the said application filed under Order XXXIX Rule 2 (A) vide the impugned order dated 20.03.2025 observing that there was no evidence adduced by the appellant. 3. This Court has given an anxious consideration to the said submission and has also perused the materials on record. It is the opinion of this Court that if the examination-in-chief on affidavit was filed and the opportunity was given to the opposite party to cross-examine and the opposite party failed to cross-examine, the examination-in-chief so filed, attains the status of evidence. 4. Taking into account the above, this Court would not like to admit the instant appeal inasmuch as the learned Trial Court did not decide on the merits of the allegation on the ground that there was no evidence. Accordingly this Court grants liberty to the appellant to prefer a review Page No.# 3/3 application before the learned Trial Court seeking review of the order dated 20.03.2025 passed in Misc. (J) Case No. 63/2019. 5. Taking into account that the appeal was filed before this Court within time, this Court grants time till 23.06.2025 to file a review application against the order dated 20.03.2025. The review application be duly considered by the learned Court of the Civil Judge (Senior Division), Kamrup at Amingaon taking into account the observations made herein above. 6. With the above, the instant appeal stands disposed of. JUDGE Comparing Assistant