Page No.# 1/4 GAHC010017912025 2025:GAU-AS:1561 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/34/2025 PINKI NATH W/O SRI SUBHAM NATH, PRESENTLY RESIDING AT 2ND LINK ROAD, PO AND PS SILCHAR, DIST CACHAR, ASSAM VERSUS SMTI BANANI DEY W/O SRI ABHIK BHOWMIK,RESIDENT OF HOUSE NO. 9, LANE NO. 13, 2ND LINK ROAD, PO AND PS SILCHAR, DIST CACHAR, ASSAM 788006 For the Petitioner(s) : Mr. R. A. Choudhury, Advocate For the Respondent(s) : None appears. BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH ORDER Date : 14.02.2025 Heard Mr. R. A. Choudhury, the learned counsel appearing on behalf of the Petitioner. 2. This Court vide an order dated 05.02.2025 had issued notice and further directed the Petitioner to effect service upon the sole respondent Page No.# 2/4 by way of dasti routed through the Registry of this Court and file an affidavit of service on or before the next date. 3. It is seen from the records that an affidavit of service dated 11.02.2025 was duly filed. In the said affidavit of service, it was mentioned that the notice of dasti dated 07.02.2025 was served upon the sole respondent through her husband who accepted it and it is further seen that there is an endorsement put by one Shri Abhik Bhowmik on behalf of Smti Banani Dey. 4. Accordingly, the service is deemed to be duly complete. 5. The instant petition has been filed under Article 227 of the Constitution challenging the order dated 27.11.2024 passed by the learned Trial Court i.e. the Court of the Civil Judge (Senior Division), Cachar wherein the learned Trial Court has rejected the application filed under Section 5 of the Limitation Act, 1963 read with Section 151 of the Code of Civil Procedure, 1908 for accepting her written statement by condoning the delay in filing her written statement. 6. From a perusal of the materials on record including the application filed by the petitioner shows that it is the case of the petitioner that she never received summons from the Court in respect to Title Suit No.191/2022 and she came to know about the said suit when she returned back to Silchar from Guwahati and immediately thereupon filed her written statement. 7. At the outset, it is relevant to observe that though the application was filed with the nomenclature of Section 5 of the Limitation Act, 1963 read with Section 151 of the Code of Civil Procedure, 1908 but in effect, Page No.# 3/4 the application was an application to setting aside the order to proceed ex-parte and reversing the clock back to the date when the learned Trial Court decided to proceed ex-parte against the Defendant. It is also to be noted that the suit at that juncture was at the stage of examination of the process server when the application was filed by the Petitioner. It is further seen that upon filing of the application on 29.08.2023, the learned Trial Court directed registering of a Miscellaneous case on the same date and thereupon passed the impugned order on 27.11.2024. 8. Taking into account that the suit was at the stage of filing of the pleadings, the question which the learned Trial Court was required to look into as to whether the written statement of the Petitioner should have been accepted. 9. It is further seen that the learned Trial Court had believed on the affidavit of the said process server, but when the petitioner categorically stated that she had not received the summons, it was incumbent on the part of the learned Trial Court to summon the process server for cross- examination rather than insisting on the appearance of the witnesses who signed the process. 10. This Court further finds it relevant to take note of that the written statement had already been submitted before the learned Trial Court and as such, the interest of justice would be met if the learned Trial Court is directed to accept the written statement inasmuch as it is well settled that the Rules of procedure are always subservient to the interest of justice. 11. Accordingly, this Court allows the instant application thereby Page No.# 4/4 permitting the petitioner to resubmit the written statement on or before 20.02.2025 before the learned Trial Court. The learned Trial Court thereupon shall proceed with the adjudication of the suit being Title Suit No.191/2022 in accordance with law. 12. With above observations and directions, the instant petition stands disposed of. JUDGE Comparing Assistant