Page No.# 1/4 GAHC010052392025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/91/2025 AZAD ALI S/O SARPAT, R/O NAGAON, P.O.- BECHIMARA, MOUZA- PASCHIM DALGAON, DIST- DARRANG, ASSAM VERSUS ABDUL KADIR S/O ABDUL KUDDUS, R/O NAGAON, P.O.- BECHIMARA, MOUZA- PASCHIM DALGAON, DIST- DARRANG, ASSAM Advocate for the Petitioner : MR. D MAZUMDAR, MS. S NATH Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 21.03.2025 Heard Mr. D. Mazumdar, learned counsel for the petitioner. 2. Correctness or otherwise of the order, dated 05.02.2025, passed by the learned Civil Judge (Senior Division), Darrang, Mangaldoi, in Title Suit No. 105/2023, is challenged in this petition, under Article 227 of the Constitution of India, by the petitioners, namely, Azad Ali. Page No.# 2/4 3. It is to be noted here that vide impugned order, dated 05.02.2025, the learned trial court had dismissed the petition No. 2035/24, filed by the petitioner under Order IX Rule 7 CPC, for vacating the order dated 30.11.2023, by which it was decided to proceed the suit ex-parte against the petitioner. 4. Mr. Mazumdar, the learned counsel for the petitioner, submits that the petitioner was defendant No.4 in Title Suit No. 105/2023, pending before the learned Civil Judge (Senior Division), Darrang, Mangaldoi. Mr. Mazumdar submits that by profession, the petitioner is Mason, and he is an illiterate person and for his livelihood he was working at Tamil Nadu, while summon was issued to him by the learned trial court. Mr. Mazumdar also submits that as the petitioner was absent in his native place, the summon was received by his nephew, but, the same was not communicated to him and as such he had no knowledge about the title suit and also about the order dated 30.11.2023, and only in the month of August, 2024, the petitioner was informed by his nephew and immediately he rushed to his native place and met his lawyer and filed the petition No. 2035/2024, on 12.09.2024. But, the same was rejected by the learned trial court. Mr. Mazumdar also submits that the delay is not intentional and it was due to delayed communication of the information about the title suit to him by his nephew. Therefore, Mr. Mazumdar has contended to allow the petition. 5. Having heard the submission of learned counsel for the petitioner, I have carefully gone through the petition and the documents placed on record and also perused the impugned order, dated 05.02.2025 and the order dated 30.11.23, passed by the learned trial court. 6. Order IX Rule 13 of Code of Civil Procedure provides that a petition for Page No.# 3/4 setting aside of decree against the opponent can only be entertained on the following two grounds:- (i) When the summons was not appropriately served; (ii) The opponent was prevented from adequate cause from appearing when the fact was called for hearing. 7. In the instant case, it appears that the summon in the Title Suit No. 105/2023, issued to the petitioner was received by his nephew as at the relevant time he was working at Tamil Nadu for his livelihood. His nephew has not communicated him about the receipt of summon. And it appears that it was communicated to him only in the month of August 2024. Then immediately he rushed to his native place and filed the petition No. 2035/2024, on 12.09.2024, which was rejected by the learned trial court on 05.02.2025, on the sole ground that summon was properly served and the petitioner remained absent in spite of the same. 8. In the case in hand, the summons was not received by the petitioner as he was absent in his native place at the relevant time. He was at Tamil Nadu for his livelihood. And on account of non communication of the same to him he was prevented appearing before the learned trial court and as such, the cause for remaining absent on the date fixed by the learned trial court appears to be adequate. 9. It is to be noted here that the conception of appearance and non- appearance of parties have been inserted in the Code of Civil Procedure respecting the principles of natural justice. Each party has to get their fair Page No.# 4/4 opportunity and chance to defend themselves and present their case before the court. It is also to be noted here that right to fair trial is now recognized as fundamental right. In fair trial fair opportunity has to be given to the parties to defend themselves. 10. Under the given facts and circumstances on the record, I find sufficient merit in this petition and accordingly, the same stands allowed at this motion stage itself. The impugned order stands set aside and quashed, leaving the parties to bear their own cost. Consequent upon setting aside of the impugned order, the learned trial court shall allow the petitioner herein to contest the Title Suit. JUDGE Comparing Assistant