Page No.# 1/4 GAHC010050612025 2025:GAU-AS:2822 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP/33/2025 UTPAL TALUKDAR S/O LATE GIRIN TALUKDAR, FLAT NO. C-4, BEDANTA RESIDENCY, BYE LANE NO 5, MOTHER TERESA ROAD, ZOO NARANGI TINIALI, GUWAHATI- 781021 VERSUS RAJIB SAIKIA RESIDENT OF VILLAGE- CHIROTIA NEAR JURIA NAMGHAR, P.O.- R.R.L., P.S.- PULIBOR, JORHAT, PIN-785006 Advocate for the Petitioner : MR. N NATH, MS D BORUAH,MR N TALUKDAR Advocate for the Respondent : , BEFORE HON’BLE MR. JUSTICE ROBIN PHUKAN ORDER 17.03.2025 Heard Mr N Nath, learned counsel for the petitioner. 2. In this petition, under Article 227 of the Constitution of India, read with Section 115 of the Code of Civil Procedure, 1908, the petitioner, namely, Utpal Talukdar, has challenged the order dated 21.12.2024, passed by the learned Civil Page No.# 2/4 Judge (Junior Division) No. 4, Kamrup (Metro), in Misc (J) Case No. 595/2024, arising out of M. S. No. 258/2022. 3. It is to be noted here that vide impugned order dated 21.12.2024, the learned trial Court has rejected the application filed by the petitioner under Section 151 CPC, for restoration of the suit, purportedly dismissed under Order 9 Rule 5 of the Code of Civil Procedure. 4. Mr Nath, learned counsel for the petitioner submits that the petitioner, as plaintiff, had instituted one Money Suit, being M.S. No. 258/2022, before the learned Civil Judge (Senior Division) No. 1, Kamrup, for recovery of a sum of Rs. 3,50,000/- (Rupees Three Lakhs Fifty Thousand Only). In the said Money Suit, the respondent herein entered appearance and submitted his written statement. Subsequently, the suit stood transferred to the Court of learned Civil Judge (Junior Division) No. 4, Kamrup (Metro), in view of amendment to the Bengal, Agra and Assam Civil Courts (Assam Amendment) Act, 2020, by which pecuniary jurisdiction of the Civil Courts of Assam has been raised. Thereafter, learned Civil Judge (Junior Division) No. 4, Kamrup (Metro), had issued notice to the respondent/defendant at the address provided in the plaint. But, the said notice returned unserved and the addressee was found not present in the given address. Thereafter, the learned trial Court had directed the petitioner to provide the proper address of the respondent/defendant. The petitioner then visited Jorhat on number of occasions, but could not collect the address of the respondent/defendant. Thereafter, the suit was posted on 13.05.2024, for service report and on that day, the petitioner had preferred an application for granting more time to furnish the address of the respondent/defendant and the same was allowed by the learned trial Court. Thereafter, on 16.05.2024, the petitioner has filed another application, seeking one last chance to furnish the address of the respondent/defendant. But, the learned Page No.# 3/4 trial Court had dismissed the petition and also dismissed the suit, purportedly, under Order 9 Rule 5 of the Code of Civil Procedure. 4.1. Mr Nath further submits that the learned trial Court has dismissed the petition referring to Article 122 of the Limitation Act, 1963. But, the said Article has no application in the present case and apparently, the order seems to have been passed under Order 9 Rule 5 of the Code of Civil Procedure. Further, Mr Nath submits that while the petitioner had filed a petition under Section 151 of the Code of Civil Procedure, before the learned trial Court for recalling the order dated 16.05.2024, the learned trial Court has directed the same to be registered as Misc (J) Case. But, while passing the order on 21.12.2024, the learned trial Court has made no reference to the aforementioned petition and without hearing the petitioner, the impugned order was passed and as such, the impugned order is arbitrary and illegal and therefore, Mr Nath has contended to set aside the order dated 21.12.2024 and remand the matter to the learned trial Court to afford an opportunity of being heard, to the petitioner and, thereafter, to dispose of the Petition No. 1804/2024. 5. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record. And also perused the impugned order dated 21.12.2024 and the Article 122 of the Limitation Act, 1963. 6. It appears that Article 122 is applicable only to restore a suit or appeal or application for review or revision, dismissed for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs. And apparently, the said provision appears to be not applicable in the present case. Further, it appears that the impugned order was passed without affording an opportunity of being heard to the petitioner. Thus, the impugned order Page No.# 4/4 appears to be arbitrary and illegal. 7. Therefore, this Court is inclined to set aside the same and to remand the matter to the learned trial Court to afford an opportunity of being heard to the petitioner and thereafter, to dispose of the petition, in accordance with law. 8. In terms of the above, this civil revision petition stands disposed of at the motion stage itself. JUDGE Comparing Assistant