Abdul Khaleque and others Vs. Aina Miah and others

Appellate Division Cases

(Civil)

PARTIES

Abdul Khaleque and others ……………..Appellants.

-VS-

Aina Miah and others …………………..Respondents.

JUSTICE

M.H. Rahman J

A.T.M. Afzal J

Latifur Rahman J

JUDGEMENT DATE: 13th April 1994

For a permanent injuction restraining the defendants from making a pathway over the suit land …………………..(1)

It is stated that after the disposal of the civil revision by the High Court division the trial court received the records on 5 May 1987 and, thereafter, after several dates the matter was fixed on 30 April 1989 for trial and on that dated the defendants were present, but the plaintiffs did not take any steps and hence their suit was dismissed. In view of the above circumstances, it is submitted that the appeal had become infructuous …………………(3)

Civil Appeal No. 17 of 1990 (From the Judgment and Order dated 6 November 1986 passed by the High Court Division, Circuit Bench, Sylhet, in Civil Revision No. 168 of 1981).

M.H. Khandker, Senior Advocate, (A.J. Mohammad AH,Advocate with him), instructed

by Aftab Hossain, Advocate-on-Record………………For the Appellants

Respondent No.13 ……….Died

Respondent Nos. 3-12 & 14-29……………… Not Represented.

JUDGMENT

1. M.H. Rahman J: The appellants filed Title Suit No. 264 of 1974 in the Court of Munsif, First Court, Sadar, Sylhet for a permanent injuction restraining the defendants from making a pathway over the suit land.

2. The trial court dismissed the suit. On appeal, however, the suit was decreed. The

learned Single Judge of the High Court Division, Circuit Bench, Sylhet by the impugned judgment and order dated 6 November 1986, passed in Civil Revision No. 168 of 1981, remanded the matter to the trial Court. On 12 January 1987 the appellants filed Civil Petition for Special Leave to Appeal No. 41 of 1987. On 25 February 1990 leave was

granted. The appellants did not then pray for any stay order against the judgment of the

High Court Division.

3. At the hearing of the appeal the learned Counsel for the respondents has raised a preliminary objection. He has drawn out attention to paragraph 11 of the respondents’ conscise statement wherein it is stated that after the disposal of the civil revision by the High Court division the trial court received the records on 5 May 1987 and, thereafter, after several dates the matter was fixed on 30 April 1989 for trial and on that dated the defendants were present, but the plaintiffs did not take any steps and hence their suit was dismissed. In view of the above circumstances, it is submitted that the appeal had become infructuous.

4. The learned Counsel for the appellants has submitted that the fact that the suit was dismissed on 30 April 1989 was not known to the appellants on 25 February 1990 when the leave was prayed for and granted.

5. As the appellants did not pray for staying the order of remand, passed by the High Court Division, the trial court, in due course, proceeded with the case after receipt of the record and dismissed the suit on 30 April 1989 when the plaintiffs were not found on repeated calls.

6. In view of the above, the appeal has become infructuous, and it is, accordingly, dismissed. No costs.

Ed.

Source: IV ADC (2007), 176

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