Appellate Division Cases
(Civil)
PARTIES
Administrator Gammon Bangladesh Ltd …………………..Appellant.
-vs-
Tota Mia and others ……………………………………Respondents.
JUSTICE
Md. Ruhul Amin J.
K. M. Hasan J.
Md. Fazlul Haque J.
JUDGEMENT DATE: 24th November, 2002.
The Limitation Act 1908, Section 5.
Rule No. 117 (F) 1993.
The appellant has further asserted that the learned Advocate for the appellant missed the cause list of the relevant date and as such no steps could be taken by him as a result of which the rule was discharged for default and as such no steps could be taken by the petitioner until 5.11.1997 when the application for restoration of Rule was filed before the Hon’ble Chief Justice on the grounds stated in the restoration petition. The learned Advocate for the appellant suddenly had to be away from Dhaka between 6.2.96 to 9.2.96 for attending his ailing mother at his village home and as such missed the Daily Cause List particularly of Lawazima items of Court No. 17 of Mr. Justice Mahmudur Rahman and Mr. Justice Bazlur Rahman and therefore he failed to take necessary steps for which the Rule was discharged only on 18.10.1997 ………………………….(6)
That while the learned Advocate claims to have not been Present in Dhaka on 7.2.1996, he being in Noakhli but in the order bookdated 7.2.1996 when the matter came up inthe Daily Cause list his appearance was therewhen the order was passed allowing 2 weeks time for compliance of the office note… years and the petitioner having filed to make out case for recalling the order of discharge the application for restoration was rejected ………………………………….(9)
On perusal of the judgment and decree passed by the learned Subordinate Judge 4″1 Court, Dhaka we are of the view that the plaintiff-respondent no. 1 has been able to prove his case and the court below has correctly decided the suit. Therefore, we find substance in the submissions of Mr. Aftab Hossain the learned Advocate appearing on behalf of the plaintiff-respondent no.l. Further, the application for restoration of Civil Rule No. 117(F) of 1993 was filed almost after about 2 years of discharge. Therefore, we are of the view that the High Court Division has not committed any error of law in discharging the Rule being Civil Rule No. 117(F) of 1993. It appears from perusal of the records that the learned advocate for the appellants was not at all prosecuting appeal diligently and properly. The High Court Division in discharging the rule in our view did not commit any error of law
and/or we do not find any infirmity and/or any illegality in the order passed by the High Court Division in discharging the Rule being Civil Rule No. 117(F) of 1993. The High Court Division Correctly rejected the application for recalling the order dated 7.2.1996 and restoring the Rule to its original file and number arising out of F. A. T. No. 116 of 1992. The appellant adopted delaying tactics in prosecuting the appeal …………………………(11)
Civil AppealNo. 31 of 1998. (From Judgment and order dated 3.12.97 passed by the High
Court Division in Civil Rule No. 117(F) of 1993).
Md. Nawab AH, Advocate-on-Record …………………….For the Appellants.
Aftab Hossain, Advocate-on-Record……………. For Respondent No. 1.
Ex-part………………. Respondent Nos.2-4
JUDGMENT
1. Md. Fazlul Haque, J: This appeal by leave is directed against the judgment and order dated 3.12.97 passed by the Division Bench of the High Court Division in Civil Rule No. 117(F) of 1993 rejecting the appellants application praying for recalling the order dated 7.2.1996 and restoring the Rule to its original file and number arising out of F.A.T. No. 176 of 1993 earlier discharged by the High Court Division.
2. The respondent no. 1 as plaintiff instituted Money Suit No. 55 of 1987 in the Second Court of Subordinate Judge, Dhaka praying amongst other for a decree for realization of Tk. 5,86,701.66. The said suit was transferred to the 4l Court of Subordinate Judge, Dhaka and the suit was numbered as Money Suit No. 4 of 1990. The suit was for realization of money for supply of stones to the appellant. The defendant-appellant contested the suit by filling written statement denying the material allegations made in the plaint. The learned Court below on hearing both the parties decreed the suit in full against the appellant on contest with cost and interest until realization and the Court further attached the properties of the appellant conditionally.
3. The appellant preferred an appeal against the judgment and decree passed by the Court of Subordinate Judge, Dhaka being F. A. T. No. 176(F) of 1993 and the said appeal was filed 51 days beyond time. The appellant also filed an application under section 5 of the limitation Act, 1908 praying for condonation of delay and a Division Bench of the High Court Division by an order dated 27.4.1993 issued a Rule being Civil Rule No. 117(F) of 1993 and the Court was further pleased to stay all further proceedings of Money Execution Case No. 4 of 1993 of the 4t n Court of Subordinate Judge, Dhaka initially for 6 months by an order dated 26.8.1993 which was extended till disposal of the Rule by an order dated 18.8.1994.
4. It has been asserted by the appellant that the respondent at the time of filing of the suit gave their address to be village-Kachihata, RS.Shibchar, District-Madaripur and proprietor of M/S. G.M. Corporation, 120, New Elephant Road, Dhaka. The appellant has further asserted that the said address having not been changed or altered by them, the decree of the suit was prepared in that address and the appellant has also used exactly the same address of vs Tota Mia (Fazlul Hague, J) 1 ADC(2004) the respondent in the memorandum of appeal and as such the summons upon the respondent was sent in that address for service under registered post by court’s office but the postal department returned that postal summon with the remark “No Person was found in the said address and hence returned the same.” The process server also returned the summons unserved stating that the respondent was not found present and that no shop of office named M/s. G. M. Corporation was found on search and as such the summons were returned unserved.
5. The Court’s office in their office note dated 10.1.1996 stated the above facts and placed the matter for orders before the learned Registrar, who allowed 2 weeks time to put in the correct address and the appellant having failed to comply with the said order of the learned Registrar, the matter was placed before a Division Bench of the Hon’ble High Court Division on 7.2.1996 and by an order of the same date the High Court Division allowed two weeks time for compliance of office note and in case of default the same shall stand discharged. The appellant has further asserted that it appears from the order book dated 12.3.1996 that one Mr. Abdul Barek Chowdhury filed a vokalatnama for and on behalf of the respondent no. 1, decree holder vide serial no. 7479 dated 4.3.1996 and the same was kept with the record.
6. The appellant has further asserted that the learned Advocate for the appellant missed the cause list of the relevant date and as such no steps could be taken by him as a result of which the rule was discharged for default and as such no steps could be taken by the petitioner until 5.11.1997 when the application for restoration of Rule was filed before the Hon’ble Chief Justice on the grounds stated in the restoration petition. The learned Advocate for the appellant suddenly had to be away from Dhaka between 6.2.96 to 9.2.96 for attending his ailing mother at his village home and as such missed the Daily Cause List particularly of Lawazima items of Court No. 17 of Mr. Justice Mahmudur Rahman and Mr. Justice Bazlur Rahman and therefore he failed to take necessary steps for which the Rule was discharged only on 18.10.1997 the appellant revived a proclamation of sale of immovable property from the 4″1 Court of subordinate judge, Dhaka fixing 21.10.1997 for sale of the appellant’s properties whereupon he on 21.10.1997 filed an application for staying further proceeding of the execution case for enabling the appellant to bring stay from the Hon’ble High Court Division, and the learned Executing Court was pleased to allow time. It has further been stated by the appellant that their Lorships Mr. Justice Mahmudul Amin Chowdhury and Mr. Justice Bazlur Rahman Talukder on 7.2.1996 recorded an order in Lawazima matters to supply correct address of the plaintiff respondent within 2 weeks with a default clause of discharge of the Rule.
7. The learned Advocate Mr. Waliur Reza Chowdhury had to be suddenly away in his village home from 6.2.1996 to 9.2.1996 for his mother’s illness. Further, Mr. Abdul Barek Chowdhury, advocate in the meantime filed a power on 4.3.1996 on behalf of the plaintiff respondent no. 1 and the office by an office note dated 12.3.1996 record the discharge of the Rule without informing of the Court about filing of the power on 12.3.1996 on behalf of the respondent no.l by Advocate Mr. Abdul Barek Chowdhury.
8. Under the facts and circumstance an application on behalf of the appellant was filed on 5.11.97 praying for recalling the order dated 7.2.96 passed by and for restoring the Rule with further order for staying all further proceeding of Money Execution Case No. 4 of 1993 of the 4tn Court of Subordinate Judge, Dhaka and the connected rule mainly on the grounds of ignorance of the appellant’s Advocate and his unintentional inability to take steps in the matter of office note dated 31.10.1995, 10.1.1996 or Courts order dated 7.2.1996.
9. The application came up for hearing before the Division Bench presided over by Mr. Justice Mahmudul Amin Chowdhury on 3.12.1997 and the Hon’ble Court was pleased to reject the application observing, interalia, that while the learned Advocate claims to have not been Present in Dhaka on 7.2.1996, he being in Noakhli but in the order book dated 7.2.1996 when the matter came up in the Daily Cause list his appearance was there when the order was passed allowing 2 weeks time for compliance of the office note. The Hon’ble Court further observed that the petition for restoration has been filed after about 2 years and the petitioner having filed to make out case for recalling the order of discharge the application for restoration was rejected.
10. Being aggrieved by the aforesaid order passed by the High Court Division dated 3.12.1997 in Civil Rule No. 117(F) of 1993 arising out of F.A.T. No. 176 of 1993, the appellant as petitioner moved this court on the following amongst others:”For that the learned judges of the High Court Division failed to take notice of the fact that the plaintiff respondent opposite party no. 1 has entered appearance in the Rule on 4.3.1996 which was on record through office note dated 12.3.1996 recording dismissal of the Rule and this appearance of the plaintiff-respondent could give an idea to the effect that the necessity of supplying correct address of their possibly was not required any more and as such the delay of about 2 years as mentioned by the learned judges was excusable”. “For that in the facts of the case wherein the cause list names of the parties did not appear and only the name of the filing advocate along with rule number appeared the granting of time by the Lawazima Bench with the said name of the advocate need not be always accepted as recording his presence in court in the face of other materials with assertion of learned Advocate declaration of absence from Dhaka from 6.2.1996 to 9.2.1996”. “For that the facts of the case suggest that a friendly person of the advocate obtained accommodation for him and his clients from the Lawazima Bench but unfortunately forget to inform the defendant appellant or their Advocate and as facts clearly show that they acted in good faith all along as such the restoration should have been allowed.” “For that the office note dated 12.3.1996 is clearly illegal in view of the intervening fact of filing of power by the learned advocate Mr. Abdul Barek Chowdhuty on 4.3.1996 in favour of plaintiff respondent no. 1 and as such that fact should have been noticed of the learned judges before recordins the office order dated 12.3.1996”. “For that facts and circumstances of the case the prayer for condonation of delay should have been granted and the order of the High Court Division dated 7.2.1996 and 3.12.1996 should have been rescinded”. ” For that the acceptance of power filed by advocate Mr. Abdul Barek Chowdhury in the file on behalf of the plaintiff respondent no. 1 changed the foundation of the defect of the case and as such the matter should have been placed before the Bench and Rule restored to its original filed number”.
11. Leave was granted upon condonation of delay for consideration of point raised by the learned Advocate appearing on behalf of the appellant. Mr. Md. Nawab Ali, Advocate-on-Record appearing on behalf of the appellant submits that the acceptance of power filed by Mr. Abdul Barek Chowdhury Advocate on behalf of the plaintiff respondent no.l changed the foundation of the defect of the case and as such the matter should have been placed before the Bench and rule ought to have been restored to its original filed and number. The learned advocate further submits that there were sufficient grounds for condonation of delay in preferring the appeal and the order of the High Court Division dated 7.2.96 and 3.12.96 should have been rescinded. Mr. Aftab Hossain advocate on record appearing on behalf of the plaintiff-respondent no.l submits that no purpose will be served in restoring the Civil Rule No. 117(F) of 1993 since the plaintiff-respondent no.l is entitled to get the decreetal amount for supply of goods to the appellant. vs Tota Mia (Fazlul Hague, J) 1 ADC(2004) On perusal of the judgment and decree passed by the learned Subordinate Judge 4 m Court, Dhaka we are of the view that the plaintiff-respondent no. 1 has been able to prove his case and the court below has correctly decided the suit. Therefore, we find substance in the submissions of Mr. Aftab Hossain the learned Advocate appearing on behalf of the plaintiffrespondent no.l. Further, the application for restoration of Civil Rule No. 117(F) of 1993 was filed almost after about 2 years of discharge. Therefore, we are of the view that the High Court Division has not committed any error of law in discharging the Rule being Civil Rule No. 117(F) of 1993. It appears from perusal of the records that the learned advocate for the appellants was not at all prosecuting appeal diligently and properly. The High Court Division in discharging the rule in our view did not commit any error of law and/or we do not find any infirmity and/or any illegality in the order passed by the High Court Division in discharging the Rule being Civil Rule No. 117(F) of 1993. The High Court Division Correctly rejected the application for recalling the order dated 7.2.1996 and restoring the Rule to its original file and number arising out of F. A. T. No. 116 of 1992. The appellant adopted delaying tactics in prosecuting the appeal. Considering the aforesaid facts and circumstances of the case we are lead to hold that there is hardly any ground for allowing the appeal. Accordingly, the appeal is dismissed without any order as to costs.
Ed.
Source: I ADC (2004), 427