Page No.# 1/4 GAHC010040222025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : FAO/18/2025 PRAFULLA NATH S/O LATE GIRISH CHANDRA NATH, RESIDENT OF WARD NO. 5, NEAR J.J HOSPITAL. PO AND PS DHEKIAJULI, DIST SONITPUR ,ASSAM VERSUS JITUMONI NATH W/O LATE JITENDRA CHANDRA NATH, RESIDENT OF WARD NO. 5, NEAR FLAMA GAS AGENCY, P AND PS DHEKIAJULI, DIST SONITPUR, ASSAM For the Appellant(s) : Mr. U. Dutta, Advocate For the Respondent(s) : None appears. BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH ORDER Date : 20.06.2025 Heard Mr. U. Dutta, the learned counsel appearing on behalf of the appellant. None appears on behalf of the sole respondent in spite of due notice. Page No.# 2/4 2. The appellant herein has assailed the order dated 26.11.2024 whereby the application filed under Order XLI Rule 19 of the Code of Civil Procedure, 1908 (for short ‘the Code’) was rejected by the Court of the learned Civil Judge (Senior Division), Sonitpur, Tezpur (hereinafter referred to as the ‘the learned First Appellate Court’) on the ground that the cause shown in the application filed under Order XLI Rule 19 of the Code was not sufficient. 3. This Court has duly taken note of the materials on record which shows that the appellant had preferred an appeal before the learned First Appellate Court which was registered and numbered as Title Appeal No.10/2022. On 05.09.2024, when the appeal was fixed for necessary order, on that date, the appellant did not appear and as such, as the appellant earlier did not appear on two consecutive dates, the appeal was dismissed for default. 4. Mr. U. Dutta, the learned counsel for the appellant drew the attention of this Court to the provisions of Order XLI Rule 16 and Order XLI Rule 17 of the Code and submitted that the power under Order XLI Rule 17 of the Code can only be exercised when the appeal was fixed for hearing. He therefore submitted that when the appeal was fixed only for necessary order, the power under Order XLI Rule 17 of the Code could not have been exercised. He further submitted that the learned First Appellate Court ought to have taken into account that on account of wrong noting made by the learned counsel for the appellant before the learned First Appellate Court, the appellant did not appear and as such, the said cause being a good cause, the learned First Appellate Court ought to have exercised powers under Order XLI Rule 19 of the Code for Page No.# 3/4 readmission of the appeal. 5. This Court has duly perused the materials on record as well as the order by which the appeal was dismissed on 05.09.2024. 6. From the very order, it is seen that the appeal was fixed for necessary order and not for hearing. It is relevant to take note of that the power under Order XLI Rule 17 of the Code could have been exercised only on the date when the appeal was fixed for hearing and not otherwise. 7. Taking into account the above, the dismissal of the appeal vide the order dated 05.09.2024 was contrary to the provisions of Order XLI Rule 17 of the Code. 8. This Court further finds it relevant to take note of that it was the fault on the part of the counsel for the appellant which led to the dismissal of the appeal and this very aspect of the matter was duly mentioned in the application filed under Order XLI Rule 19 of the Code. However, the learned First Appellate Court had taken a hyper technical view and thereby rejected the application under Order XLI Rule 19 of the code. 9. Consequently, this Court therefore interferes with the order dated 26.11.2024 whereby the application under Order XLI Rule 19 of the Code was rejected. 10. This Court further taking into account the reasons above mentioned exercises the power under Order XLI Rule 19 of the Code and thereby restores the Title Appeal being Title Appeal No.10/2022 to the file of the learned First Appellate Court. Page No.# 4/4 11. Taking into account that the appeal was dismissed and the appeal has been restored by the present order, this Court fixes the appeal before the learned First Appellate Court i.e. Court of the learned Civil Judge (Senior Division), Sonitpur, Tezpur on 21.07.2025. 12. The appellant herein shall produce a certified copy of this order before the learned First Appellate Court. Taking into account that the respondent is not represented, the learned First Appellate Court prior to fixing a date for hearing, issue notice in the said appeal intimating the respondent in Title Appeal No.10/2022 that the appeal has been restored and the appeal would be fixed for hearing. 13. With the above, the instant appeal stands allowed. JUDGE Comparing Assistant