Page No.# 1/4 GAHC010038522025 2025:GAU-AS:4708 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/63/2025 AKABBAR ALI AND ANR S/O LATE MEMBER ALI, R/O VILLAGE- BAGURITTARI, MOUZA- SARUKHETRI, P.S. SARTHEBARI, DISTRICT- BARPETA, ASSAM 2: HAFEJ ALI S/O LATE MEMBER ALI R/O VILLAGE- BAGURITTARI MOUZA- SARUKHETRI P.S. SARTHEBARI DISTRICT- BARPETA ASSA VERSUS MD DARBESH ALI S/O LATE BISHA MIYA, R/O VILLAGE- NO 1 DAULASHAL, MOUZA- PACHIM BARKHETRI, P.S. MUKALMUA, DISTRICT- NALBARI, ASSAM, PIN- 781312 For the Petitioner(s) : Mr. N. Haque, Advocate For the Respondent(s) : None appears BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH ORDER Date : 21.04.2025 Page No.# 2/4 Heard Mr. N. Haque, the learned counsel appearing on behalf of the petitioners. 2. None appears on behalf of the respondent in spite of service being affected. 3. The instant application has been filed invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India challenging the order dated 05.10.2024 as well as the subsequent order dated 04.01.2025 passed by the learned Civil Judge (Jr. Div.) No. 2, Barpeta (hereinafter referred to as, “the learned Trial Court”) in Title Suit No. 184/2024. Vide the order dated 05.10.2024, the petitioners have been debarred from filing the written statement on the ground that 90 days had lapsed from the date of service of the summons. It is also relevant to take note of that the petitioners had filed a written statement cum counter claim on 04.01.2025 which was also rejected by the learned Trial Court on 04.01.2025. 4. This Court has duly perused the petition so filed before this Court as well as the additional affidavit. 5. Mr. N. Haque, the learned counsel appearing on behalf of the petitioners submitted that the learned Trial Court not only failed to take note of the provision of Section 148 of the Code of Civil Procedure, 1908 but also the fact that till the issues are not framed, the defendant duly has the right to file the counter claim. 6. This Court has also examined the grounds on which the time was sought for and in the opinion of this Court the learned Trial Court ought Page No.# 3/4 to have granted a further chance to the defendants/the petitioners herein to file the written statement cum counter claim. This Court has also taken note of that on 04.01.2025 the written statement cum counter claim had already been filed, however, the learned Trial Court had rejected the same vide the order dated 04.01.2025. 7. Taking into account that the procedural laws are always subservient to the substantive rights and the petitioners would suffer irretrievably if the written statement cum counter claim is not allowed to be taken on record, this Court interferes with the order dated 05.10.2024 by which the petitioners were debarred from filing the written statement as well as also the order dated 04.01.2025 whereby the written statement cum counter claim filed by the petitioners were rejected. 8. This Court however cannot be unmindful of the fact that there has been certain laches on the part of the petitioners in not filing the written statement as well as the counter claim within the period stipulated. Under such circumstances, this Court for the interest of justice imposes a cost of Rs. 25,000/- upon the petitioners which shall be deposited before the learned Trial Court on the next date so fixed herein under. 9. With the above observations, therefore, the instant petition stands disposed of with the following directions: (i) The order dated 05.10.2024 whereby the petitioners were debarred from filing the written statement is interfered with. (ii) The order dated 04.01.2025 by which the petitioner’s written statement cum counter claim was rejected is interfered with. (iii) It has been brought to the attention of this Court that the next Page No.# 4/4 date fixed before the learned Trial Court is on 11.06.2025. On the said date, the petitioners are directed to deposit a cost of Rs. 25,000/- before the learned Trial Court. Upon such deposit, the written statement cum counter claim so filed by the petitioners shall be duly taken on record by the learned Trial Court. (iv) This Court further grants the liberty to the plaintiff to file an application before the learned Trial Court for release of the said amount and upon such application being filed, the learned Trial Court shall pass appropriate orders. JUDGE Comparing Assistant