Page No.# 1/4 GAHC010288422025 2026:GAU-AS:5875 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/149/2026 PATIT PABAN DEBNATH S/O SRI BRAJENDRA DEBNATH, R/O NAMDANG, BASHBARI, P.O. AND P.S.- MARGHERITA, DIST- TINSUKIA, ASSAM, PIN- 786181 VERSUS NARAYAN CHOUDHURY AND 2 ORS. SON OF LATE DULAL CHOUDHURY, R/O 1 NO. LAZUM BASTI, P.O. AND P.S.- MARGHERITA- 783181, DIST- TINSUKIA (ASSAM) 2:SUKUMAR CHOUDHURY SON OF LATE DULAL CHOUDHURY R/O 1 NO. LAZUM BASTI P.O. AND P.S.- MARGHERITA- 783181 DIST- TINSUKIA (ASSAM) 3:ASSISTANT COMMISSIONER O/O THE SDO (C) BOKAKHAT BOKAKHAT (ASSAM) PIN- 78561 Advocate for the Petitioner : MR D KALITA, MS R KOUR Advocate for the Respondent : , Page No.# 2/4 BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 29.04.2026 Heard Mr. D. Kalita, learned counsel for the petitioner. 2. In this petition, under Article 227 of the Constitution of India, the petitioner has challenged the order dated 01.11.2025, passed by the learned Civil Judge (Senior Division), Tinsukia, in Title Suit No. 20/2024. 3. It is to be noted here that vide impugned order dated 01.11.2025, the learned Civil Judge (Senior Division), Tinsukia (‘trial Court’, for short) had set aside the ex-parte order passed against the respondent/defendant Nos. 1 and 2 and allowed them to file written statement beyond the period of 90 days. 4. Mr. Kalita, learned counsel for the petitioner submits that the petitioner, as plaintiff, had instituted a title suit, being Title Suit No. 20/2024, for declaration, damages, compensation and other relief, and that upon the said suit, the learned trial Court had issued summon to the respondents/defendants and accordingly, summon was served, but in spite of receipt of summon, the respondent/defendant Nos. 1, 2, 5 and 6 failed to turn up, for which the learned trial Court had decided to proceed ex-parte against the respondent/defendant Nos. 1, 2, 5 and 6, vide order dated 21.06.2024. Mr. Kalita also submits that thereafter, on 20.07.2024, the respondent/defendant Nos. 1 and 2, had filed an application for vacation of the ex-parte order, in which the petitioner herein filed written objection. But, the learned trial Court, vide impugned order dated 01.11.2025, had vacated the ex-parte order and fixed the matter for filing written statement, by the respondent/defendant Nos. 1 and 2, on 21.11.2025. Mr. Kalita further submits that while filing the application for vacating the ex- Page No.# 3/4 parte order on 20.07.2024, the respondent/defendant Nos. 1 and 2 had not enclosed their written statement with the said application and in the meantime, the period of 90 days also already elapsed, and on such count, Mr. Kalita submits that the impugned order suffers from manifest illegality and therefore, he has contended to interfere with the same. 5. Having heard the submission of Mr. Kalita, learned counsel for the petitioner, this Court has carefully gone through the petition and the documents placed on record, and also perused the impugned order dated 01.11.2025. 6. It appears that the learned trial Court had decided to proceed ex-parte against the respondent/defendant Nos. 1 and 2, along with 5 and 6, vide order dated 21.06.2024, when they failed to turn up on that day, in spite of receipt of summon, and subsequently, the respondent/defendant Nos. 1 and 2 on 20.07.2024, had filed an application, however, without enclosing the written statement for vacating the ex-parte order, and thereafter, vide impugned order dated 01.11.2025, the learned trial Court had vacated the ex-parte order and allowed them to file written statement. 7. It is a fact that the summon upon the respondent/defendant Nos. 1, 2, 5 and 6 was served upon 07.05.2024, 08.05.2024 and 09.05.2024, respectively, as is apparent from the record and the respondent/defendant Nos. 1 and 2 filed an application on 20.07.2024, for vacating the ex-parte order and till filing of the application on 20.07.2024, the period of 90 days for filing the written statement did not elapse. However, when the impugned order was passed on 01.11.2025, the period of 90 days already elapsed. 8. But, it is well settled in a catena of decisions of Hon’ble Supreme Court that the period of 90 days for filing written statement by the defendant is Page No.# 4/4 directory, not mandatory in nature and on sufficient ground being shown, the same can be accepted beyond the period of 90 days. Reference in this context can be made to two decisions of Hon’ble Supreme Court in the cases of Salem Advocate Bar Association, T.N. vs. Union of India, reported in (2005) 6 SCC 344; and Kailash vs. Nanhku and Ors., reported in (2005) 4 SCC 480. 9. In the instant case, the learned trial Court had set aside the ex-parte order and allowed the respondent/defendant Nos. 1 and 2 to file written statement on the ground that due to wrong posting of the date in the diary by their engaged counsel, step could not be taken on 21.06.2024. The reason so assigned by the learned trial Court cannot be said to be unjustified. It is well settled that for the fault of the counsel, the litigant should not suffer. 10. Thus, having examined the impugned order, dated 01.11.2025, in the light of the facts and circumstances discussed herein above and also in the light of the aforementioned decisions, this Court is of the view that the impugned order suffers from no infirmity or illegality requiring any interference of this Court. The learned trial Court, in exercise of its discretion and balancing the equity, had vacated the ex-parte order on a petition filed by the respondent Nos. 1 and 2 herein. And this Court cannot substitute its view with that of the learned trial Court by invoking the jurisdiction under Article 227 of the Constitution of India. 11. Under the given facts and circumstances, this Court finds no merit in this petition and accordingly, the same stands dismissed. JUDGE Comparing Assistant