Anowarul Hoque being dead his heirs 1 (a): Md. Ruhul Amin and others Vs. Mohammad Tafazzal Mondal and otherss.

Appellate Division Cases

(Civil)

PARTIES

Anowarul Hoque  being dead his heirs 1 (a): Md. Ruhul Amin and others

………………Petitioners.

-Versus-

Mohammad Tafazzal Mondal and otherss. …………………….Respondents.

JUSTICE

Md. Ruhul Amin J

Md. Tafazzul Islam J

The High Court Division committed an error of law by discharging the Rule in so far as to the appointment of Acting Nazir/Nazir as guardian in contravention of the provision of the Rule 843(1 )(2) of Civil Rules and Orders and Rule 4(4) of Order 32 of the Code of Civil Procedure and such appointment being illegal and without jurisdiction, the Rule ought to have been made absolute for the protection of rights/ interests of the minors and also for ends of justice; in the case of Bhagoban Das vs. Mahadeb reported in A. I. R. 1923 Allahabad 298 it has been held that a vakil appointed as guardian of minors by court is an officer of that court for the purpose of Order 32 Rule 4(4) of the Code of Civil Procedure and as such in Bangladesh (3)

ADVOCATES

S. M. Zillul Ho’que. Senior Advocate, instructed by Md. Nawab Ali, Advocate- on-Record For the Petitioners. Not represented Respondents.

ORDER

1. Md. Tafazzul Islam, J.:- The defendants filed this civil petition for leave to appeal challenging the judgment dated 25.2.2004 passed by a Single Bench of the High Court Division in Civil Revision No. 415 of 1992 discharging the Rule which was obtained against the judgment and order dated 2.2.1992 passed by the learned Subordinate Judge( now Joint District Judge). Jhenidah in Miscellaneous Appeal No. 29 of 1990 affirming the judgment dated 12.3.1990 passed by the learned Assistant Judge, Kaligonj in Miscellaneous Case No.3 of 1990 rejecting the application filed under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure praying for setting aside the exparte judgment and decree dated 28.11.89 passed in the Title Suit No. 100 of.1989 of the Court of Assistant Judge. Kaligonj, District  Jhenidah.

2. The respondent No. 1. as plaintiff, filed the . above Title Suit No. 100 of 1989 on 16.8.1989 for declaration of title and khas possession stating, inter alia, that his father late Manclar Mondal was the owner in possession of the disputed land measuring 2.07 acres and his name was duly recorded in S.A. khatians and he died leaving behind his wife and also the plaintiff who at that time was minor being aged about 34 months; subsequently the mother of the plaintiff transferred her entire share to the plaintiff by an oral gift and thereby the plaintiff become the owner of the entire property left by his father: on attaining majority the plaintiff came to know that the suit land is under the possession of the defendants who, on querry. told the plaintiff that they purchased the suit land from one Afsar Ali Gazi who having no title and interest in the suit land, had no authority to sell the same and, in fact, the defendants, in connivance with Afsar Ali Gazi. used the death of the father of the plaintiff and also the minority of the plaintiff, as an opportunity to deprive the plaintiff of the suit land; the defendants, inspite of requests, declined to restore the possession to the plaintiff and hence the suit. The defendants, including the minor defendants, filed petition seeking setting aside of the exparte decree contending that not being notified about the filing of the above suit through proper service of summons, they could not appear in the suit and in the above circumstances the trial court on 29.11.89 decreed the suit exparte. The defendant/petitioner, after coming to know about the said exparte decree, filed application under Order IX Rule 13 of the Code of Civil Procedure, which was registered as Miscellaneous Case No. 3 of 1990. The plaintiff contested the above miscellaneous case by filing written objection. The learned Assistant Judge, By judgment and order dated 12.03.1990, dismissed the above miscellaneous cose. The defendant/ petitioners then preferred the Miscellaneous Appeal No. 29 of 1990 and the learned Subordinate Judge (now Joint District Judge). Jhenidah. after hearing, dismissed the same more or less on the same findings arrived at by the learned Assistant Judge and also with the further finding that the said miscellaneous case was time barred. The petitioners then moved the High Court Division and obtained Rule in Civil Revision No. 415 of 2002 and after hearing a Single Bench of High Court Division on 25.02.2004 discharged the Rule.

3. The learned counsel for the petitioner submits that the High Court Division committed

an error of law by discharging the Rule in so far as to the appointment of Acting Nazir/Nazir as guardian in contravention of the provision of the Rule 843(1 )(2) of Civil

Rules and Orders and Rule 4(4) of Order 32 of the Code of Civil Procedure and such appointment being illegal and without jurisdiction, the Rule ought to have been made absolute for the protection of rights/ interests of the minors and also for ends of justice; in the case of Bhagoban Das vs. Mahadeb reported in A. I. R. 1923 Allahabad 298 it has been held that a vakil appointed as guardian of minors by court is an officer of that court for the purpose of Order 32 Rule 4(4) of the Code of Civil Procedure and as such in Bangladesh, the learned Advocates are officers of the Court for the same purpose and so Acting Nazir/Nazir can not be appointed as guardian of the minor.

4. The above submissions merit consideration.

5. Leave is granted.

6. Security of Tk. 1000/- is to be deposited within one month.

7. Preparation of paper book is dispensed with as prayed for.

8. The petitioners are permitted to add additional grounds.

Source: III ADC (2006) 798

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