Additional Deputy Commissioner (L.A.) Vs. Saifuddin Khan

Appellate Division Cases

(Civil)

PARTIES

Additional Deputy Commissioner (L.A.) Dhaka In-charge of Vested property (L&B) Cell, Collectorate District, Dhaka ………………………Appellant

-VS-

Saifuddin Khan and others ………………………Respondents

JUSTICE

A.T.M. Afzal CJ

Mustafa Kamal J

Latifur Rahman J

Mohammad Abdur Rouf J

Bimalendu Bikash Roy Choudhury J

JUDGEMENT DATE: 11th March 1998

The Code of Civil Procedure, Section 80(2)

The Limitation Act, Article 95, 149

At the hearing of the appeal it is found that the plaintiffs suit was dismissed not only on the ground of limitation but also on merit as well. In dismissing the leave petition this Division observed that it was not understood why the plaintiff though granted time to file written statement in Title Suit No. 253 of 1976 allowed the suit to be heard exparte and further why the plaintiff waited for 4 (four) years to file his suit on 5 August, 1980. It was noticed that all the Courts below found that no fraud was practiced on the Court and the plaintiff in obtaining the exparte decree in Title Suit No. 253 of 1976. Accordingly, the leave petition was dismissed………………(8)

In view of the said findings it is utterly futile to decide whether the proper article of the Limitation Act was applied in the suit because the suit was dismissed on merit finding that the exparte decree was not obtained by practising fraud as alleged by the plaintiff-appellant……………………(9)

The plaintiff, however, has not made any grievance in the plaint as to the granting of shorter time for filing the written statement”. It does not appear that the plaintiff’s prayer for time for filing written statement in Title Suit No. 253 of 1976 was refused before passing the exparte decree in that suit (10)

Civil Appeal No. 77 of 1990 (From the judgment and order dated March 6, 1985 passed by the Appellate Division, Dhaka in Civil Petition for leave to Appeal No. 40 of 1985)

A.W. Bhuiyan, Additional Attorney General, instructed by B. Hossain Advocte-on-

Record……………………… For the Appellant

Respondents …………… Ex-parte.

JUDGMENT

1. A.T.M. Afzal CJ: This appeal at the instance of the plaintiff arises out of an order of this Court granting leave to appeal upon review. Having heard the matter now it appears that the review itself should not have been allowed. We shall presently say why.

2. The appellant as plaintiff instituted Title Suit No. 224 of 1980 in the Sixth Court of Assistant Judge, Dhaka against the respondents for a declaration that the exparte decree passed in Title Suit No. 253 of 1976 of the Sixth Court of Assistant Judge, Dhaka is collusive, forged, illegal and not binding upon the plaintiff.

3. The plaintiffs case, briefly, was that the suit property which originally belonged to some members of minority community vested in the Government as evacuee property after they migrated to India immediately after 1947. The property was declared as enemy property in E.P. Case No. 282 of 1967. The enemy property authority leased it out to different persons including defendant No.2. Defendant Nos.l and 2 in collusion with each other obtained the exparte decree for specific performance of contract on the basis of a forged deed of agreement dated 10.10.1963. Plaintiff came to know about the exparte decree on 5.11.77 and then filed the suit.

4. Defendant No.2 contested the suit asserting, inter alia, that the summons of Title Suit No. 253 of 1976 was served upon all the defendants and the lawyer of the vested property authority appeared in the suit but did not contest it.

5. The trial Court dismissed the suit finding, inter alia, that the plaintiff had miserably failed to prove his case. The appeal filed by the plaintiff was also dismissed and a revision thereafter met the same fate whereupon the plaintiff filed C.P.L.A. No. 40 of 1985 from the decision of the High Court Division discharging the Rule in the revision case.

6. The leave petition was dismissed by order dated 6 March, 1985 and then a review was taken from the said order.

7. It was argued at the hearing of the review petition that there was an error apparent on the face of the record in that it was not noticed that having regard to the nature of the plaintiffs suit the limitation was liable to be governed by article 149 of the First Schedule to the Limitation Act providing for a period of 60 years and not by article 95 as was held in the appeal and revision. Secondly, it was submitted that it was not noticed that the decree in Title Suit No. 253 of 1976 was passed in violation of the proviso to section 80(2) of the Code of Civil Procedure, for, the suit was instituted on 14.7.76 and decreed exparte on 18.9.76 without allowing Government 3 months time for filing written statement.

8. At the hearing of the appeal it is found that the plaintiff’s suit was dismissed not only on the ground of limitation but also on merit as well. In dismissing the leave petition

this Division observed that it was not understood why the plaintiff though granted time to file written statement in Title Suit No. 253 of 1976 allowed the suit to be heard exparte and further why the plaintiff waited for 4 (four) years to file his suit on 5 August, 1980. It was noticed that all the Courts below found that no fraud was practiced on the Court and the plaintiff in obtaining the exparte decree in Title Suit No. 253 of 1976. Accordingly, the leave petition was dismissed.

9. In view of the said findings it is utterly futile to decide whether the proper article of

the Limitation Act was applied in the suit because the suit was dismissed on merit finding that the exparte decree was not obtained by practising fraud as alleged by the plaintiff-appellant.

10. As far as the question of violation of the proviso to section 80(2) of the Code of Civil

Procedure is concerned, it is found that the High Court Division noticed in its judgment

in the revision case that “the plaintiff, however, has not made any grievance in the plaint as to the granting of shorter time for filing the written statement”. It does not appear that the plaintiffs prayer for time for filing written statement in Title Suit No. 253 of 1976 was refused before passing the exparte decree in that suit.

11. For all these reasons, we think that there is no merit in this appeal which is accordingly dismissed without any order as to costs.

Ed.

Source: IV ADC (2007), 405