Page No.# 1/6 GAHC010019622026 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/15/2026 SMTI. TARUBALA BARMAN @ SMTI. TARULATA BARMAN AND 2 ORS. R/O VILL- CHATIBARGAON, P.O. AND P.S.- DHALIGAON, DIST- CHIRANG, BTAD, ASSAM, PIN-783315 2: KABITA BARMAN R/O VILL- CHATIBARGAON P.O. AND P.S.- DHALIGAON DIST- CHIRANG BTAD ASSAM PIN-783315 3: DIPTI BARMAN R/O VILL- CHATIBARGAON P.O. AND P.S.- DHALIGAON DIST- CHIRANG BTAD ASSAM PIN-78331 VERSUS MD JOYNAL ABEDIN R/O VILL- CHATIBARGAON, P.O. AND P.S.- DHALIGAON, DIST- CHIRANG, BTAD, ASSAM, PIN-783315 Advocate for the Petitioner : MS. R CHOUDHURY, S AJMI,MS. B. HAZARIKA Advocate for the Respondent : , Page No.# 2/6 BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 06.02.2026 Heard learned counsel Ms. R. Choudhury for the petitioners, (1) Smti. Taru Bala Barman @ Smti. Tarulata Barman (2) Kabita Barman and (3) Dipti Barman. 2. It is submitted on behalf of the petitioners that after 3 (three) failed litigations being brought up by the respondent and his companion Manik Chandra Barman, the respondent Md. Joynal Abedin has brought up a false litigation registered as TS. No. 32/2021 against the petitioners. The petitioners are owners and occupiers of the suit land and after successfully obtaining a decree they are pursuing the execution case. The defendants went up to the Supreme Court and their case has been rejected and SLP No. 19707/2015, preferred against the petitioners was dismissed by the Supreme Court on 24.07.2015. After getting an order in their favour the petitioners/plaintiffs are pursuing the Title Execution Case No. 01/2015. 3. The respondent has falsely alleged that the petitioners have fabricated forged documents and are in possession of the suit land and on such false allegations, the respondent is pursuing Title Suit No. 32/2021. During trial, the petitioners/defendants have failed to cross-examine the plaintiffs witnesses in TS No. 32/2021 (TS No. 102/2025 old). When the petitioners/defendants were debarred from cross-examining the plaintiffs witnesses they filed a Petition No. 873/2023 which was registered as Misc.(J) Case No. 59/2022. The Trial Court however, rejected their petition to cross-examine the plaintiffs witnesses, namely, PW-1, 2 and 3. The relevant part of the order is extracted herein below:- Page No.# 3/6 “Upon the perusal of the record it appears that on 22.3.22 the suit was fixed for cross -examination of PW1 and on the said date the defendant side was absent without any step and accordingly the cross-examination of the Pw1 dispensed with by my learned was predecessor and the suit was fixed for cross examination of Pw2 on the defendant was absent without 6.4.22. On 6.4.22 again steps due to which the cross -examination of Pw2 was dispensed with and the suit was fixed for cross-examination of Pw3 28.4.22. Thereafter, on 28.4.22 the defendant side was represented and the defendant side prayed for adjournment and the suit was fixed for cross examination of PW3 on 13.522. On the subsequent dates that is 13.5.22 and 1.6.22 again adjournments were sought by the defendant side for the cross-examination of Pw3 and the adjournments were granted them. Thereafter the suit was fixed for cross examination of the Pw3 on 14 722, however on the said date the defendant side was absent without any step and again the suit was fixed for cross -examination of Pw3 on 16.7.22. On 16.7.22 the defendant side was again absent without any step due to which the cross- examination of the Pw3 was dispensed with by my learned predecessor and the evidence of the plaintiff side was closed and the suit was fixed for argument. However as an official witness was left out for examination, hence, again the suit was fined for examination of official witness. At present the suit is at the stage of examination of official witness. In Vadiraj Nagappa Vernekar vs. Sharadchandra Prabhakar Gogate (2009)4 SCC 410 and K.K Velus v. N Palanisamy (2011)11 SCC 275 the Hon'ble Supreme Court observed that order XVIII rule 17 should be exercised sparingly. It is primarily to enable the court to clarify any Issue or doubt by recalling any witness either suo motu or on application of any party so that the court can itself put questions and elicit answers. Now, in the light of the above decisions of the Hon'ble Supreme Court and the facts of the present suit it appears that the cross-examinations of the PWs was dispensed with by my learned predecessor vide three orders i.e 22.3.22, 6.4.22, and 16.7.22 respectively. In all the three dates the defendant side was absent without any step.” 4. It is submitted on behalf of the petitioners that they were contesting the title suit and they are willing to contest the same. Being laymen, the petitioners did not get proper advice. They also appointed a new engaged counsel to represent them in the title suit. It is further submitted that the petitioners ought not to suffer for the negligence of their lawyers. The petitioners will be deprived from the fruits of the decree as the decree holder having already succeeded in 3 Page No.# 4/6 (three) litigations. The petitioners have relied on the decision of the Hon’ble Supreme Court in Robin Thapa Vs. Rohit Dora reported in (2019) 7 SCC wherein it has been held that:- “8. The disputed agreement is dated 18-4-2012. Summons was issued and it was received but according to the appellant, by his mother. The trial court has apparently accepted the case of the appellant that the mother did not bring the receipt of the summons to the notice of the appellant and that it was sometime in June 2014 that the appellant can be credited with knowledge of the suit. The order dated 2-7-2014 reads as follows: "On behalf of the plaintiff ex parte evidence by way of affidavit (2002) is filed. The ex parte proceeding against the defendant is allowed. The application is submitted to engage an advocate by the defendant. However, the suit is declared ex parte evidence, therefore, the same is rejected. Now the matter is fixed for ex parte argument on dated 8-8-2014." 9. Order further appears to reveal that the plaintiff was present in person. The plaintiff has filed his proof affidavit. It was decided to proceed against the appellant ex parte. There is, however, a reference to the application to engage an advocate by the appellant. The case stood posted for ex parte argument on 8-8-2014. As parties were not present on the said day, the case was posted to 15-9-2014. However, on 12-9-2014, the case stood transferred to another court. No intimation was given under Rule 89-A to the appellant. 10. The further case of the appellant is that he came to know from the plaintiff that the case was fixed for judgment on 17-11-2015. He has alleged that he contacted his counsel but he did not get a satisfactory reply. He also has a case that he appeared on 17-11-2015 in court, and then, he only came to know that judgment was rendered on 9-10-2014. A new counsel was engaged on 26-11-2015. Thereafter, the application was filed. 11. One fact stands out and that is, that the appellant came to be served notice of the execution proceedings through said messenger on 27-3-2015. Thus, the case of the appellant that the appellant came to know about the passing of the decree only on 17-11-2015, cannot be acted upon. This is besides noticing that in execution of the decree, the sale deed has Page No.# 5/6 been executed in favour of the respondent and it is only thereafter that despite receipt of the notice dated 27-3-2015, the appellant has set up the case that he came to know of the passing of the decree only several months thereafter.’’ 12. The matter arises from a suit for specific performance. It may be true that there is a case for the respondent that the appellant has actually let out the building on rent The appellant's case is that this is the appellant's residential house and the matter is a loan transaction. Specific relief is undoubtedly a discretionary relief The appellant has submitted that the appellant is prepared to deposit the entire amount spent by the respondent towards getting sale deed executed We would think that the interest of justice demands that subject to putting the appellant on terms, an opportunity should be given to the appellant to contest the case and the case must be directed to be disposed of within the time-limit. 13. Accordingly, we allow the appeal and set aside the impugned order subject to the following conditions:-“ 5. Considering the submissions at the Bar, it appears that a last opportunity may be accorded to the petitioners to cross-examine the plaintiffs witnesses. 6. I have also considered the submission that on one date the cross- examination will be completed by the plaintiffs. Thereby, for the interest of justice the petitioners are allowed to cross-examine all the plaintiffs witnesses within 1 (one) month from the date of this order. 7. In terms of the above observations, this petition stands disposed of with costs of Rs. 1000/- to be deposited by the petitioners before the Trial Court. JUDGE Page No.# 6/6 Comparing Assistant