Page No.# 1/4 GAHC010023732026 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./58/2026 AMAR DAS S/O PRATAP DAS R/O MERABHETI RAJKHUWA CHUK GAON, P.O. AND P.S. CHOWKIHOLA, DIST. KARBI ANGLONG, ASSAM, PIN-782490 VERSUS ELA DAS BORA W/O SHRI AMAR DAS R/O CHOWKIHOLA, NEAR MARKET, P.O. AND P.S. CHOWKIHOLA DIST. KARBI ANGLONG, ASSAM, PIN-782490 Advocate for the Petitioner : MR S R A NASER, MR S AHMED,S K SARFRAJ KARIM Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 13.08.2026 Heard Mr. S.R.A. Naser, learned counsel for the petitioner. 2. None appears for the respondent on call, though notice was duly served upon her, in view of the order dated 07.04.2026. 3. This petition, under Section 442 read with Section 438 of the BNSS, is preferred by the petitioner challenging the order dated 27.11.2025, passed by the Page No.# 2/4 learned Sub-Divisional Judicial Magistrate, Karbi Anglong at Bokajan (trial court hereinafter), in Misc. Case No. 13/2024, whereby the petition filed by the petitioner herein for vacating the ex-parte order dated 27.08.2025, was dismissed. 4. Mr. Naser, learned counsel for the petitioner, submits that the petitioner herein is the respondent in Misc. Case No. 13/2024, filed by the respondent herein, seeking maintenance from the petitioner herein. In the said petition, the petitioner herein failed to appear, for which, the learned trial court had proceeded ex-parte against him and passed ex-parte order dated 27.08.2025, directing the petitioner herein to pay maintenance @ Rs 8,000/- per month to the respondent herein, under Section 144 of the BNSS. Thereafter, the petitioner herein had filed one application before the learned trial court, being petition No. 558, for setting aside the ex-parte order dated 27.08.2025, showing the grounds that on account of illness, he failed to appear before the learned trial court on 27.08.2025. But, the learned trial court, vide impugned order dated 27.11.2025, had dismissed the petition on the ground that no good cause is shown for setting aside the ex-parte order. Mr. Naser further submits that respective medical document was annexed with the petition to substantiate the claim of illness of the petitioner herein. 4.1. Mr. Naser, taking this Court, through the petition No. 558, dated 09.10.2025, submits that in the said petition, the petitioner herein had annexed the medical certificate/prescription as Annexure – A and in paragraph No. 3 of the said petition, he had categorically stated that his absence was neither intentional nor deliberate, but due to genuine and unavoidable medical reason, he could not appear before the learned trial court. However, the learned trial court had failed to consider the same and erroneously observed that no medical document has been produced to substantiate the grounds of illness of the petitioner herein and therefore, Mr. Naser submits that the impugned order is illegal and arbitrary and the same may be set aside and quashed and the petitioner may be given a chance to contest the Page No.# 3/4 petition. 5. Having heard the submission of learned counsel for the petitioner, this Court has carefully gone through the petition as well as the documents placed on record and also perused the impugned order, dated 27.11.2025 and also the order dated 27.08.2025, passed in the petition No. 558. 6. Perusal of the petition No. 558, dated 09.10.2025, indicates that the petitioner herein in paragraph No. 3 had categorically mentioned about the grounds of his absence and also enclosed the medical documents with the petition and the said medical documents are also enclosed with the present petition. 7. In that view of the matter, the finding so arrived at by the learned trial court, in the impugned order, dated 27.11.2025, that no medical document was annexed with the petition to substantiate the claim of illness of the petitioner herein, seems to be not based on the correct appreciation of the facts. 8. It is to be noted here that right to fair trial is a fundamental right and in fair trial, fair opportunity has to be afforded to both the parties to contest the proceeding and denial of that right means denial of fair trial. 9. Having examined the impugned order in the light of the aforementioned proposition and also in the light of the submission, so advanced by Mr. Naser, learned counsel for the petitioner, this Court is of the view that the impugned order, so passed by the learned trial court, dismissing the petition No. 558, dated 27.11.2005, fails to withstand the legal scrutiny and accordingly, the same stands set aside and quashed. 10. Consequently, the matter stands relegated to the learned trial court to consider the petition No. 558 afresh and to after hearing both the parties on the same and thereafter, to pass a fresh order, keeping in mind the proposition quoted herein above. Page No.# 4/4 11. Further, till the petition No. 558 is disposed of, the petitioner herein shall continue to pay half of the amount of maintenance amount, i.e. Rs. 4,000/-, awarded by the learned trial court vide order dated 27.08.2025. 12. In terms of above, this petition stands disposed of. JUDGE Comparing Assistant