Appellate Division Cases
(Civil)
PARTIES
Government of Bangladesh represented by the Deputy Commissioner Rangpur ………………………………………………………Appellant
-vs-
Hasrat Mohani and others……………………………… Respondents
The Limitation Act (IX of 1908), Section 5.
Kader Mondal Vs Shamsur Rahman Chowdhury alias Shamsur Rahman Saha in 51 DLR (AD) 253.
To obtain opinion of various authorities concern before filing an appeal sometimes may reasonable be expected to elapse. Specifically the learned G. P. has mentioned that the Ministry of Land wanted the file for taking decision to prefer appeal, which remained in the Ministry for ling time and was also misplaced. So the government has sufficient explanation of delay (11)
The delay occurred in presenting the memorandum of appeal though long but sufficient for acceptance of the reasons for condonation of delay. So the instant appeal is not barred by limitation (12)
Civil Appeal No. 137 of 2003
(From the Judgment and Order Dated 28.8. 2002 passed by the High Court Division in Civil Revision No. 4340 of 1999)
A. H. M. Mushfiqur Rahman Deputy Attorney General, instructed by Sajjadul Huq, Advocate-on-Record. For the Appellant
A. H. Amin, Advocate-on-Record. For Respondent Nos. 7 &8 Not Represented .Respondent
Nos. 1-6 & 9-23
JUDGMENT
Amirul Kabir Chowdhury J:- The Government of the People’s Republic of Bangladesh represented by the Deputy Commissioner, Rangpur was defendant in Other Suit No. 60 of 1981 in the Court of the Subordinate Judge, Rangpur at whose instance this appeal has been preferred.
2. The plaintiff respondents case is that an area of 92.28 acres of lands out of 105.50 acres including the suit land of C. S. Plot No.l of C. S Khatian No.7 was taken pattan by one Abdur Rahman, the predecessor of the plaintiff respondents, from the land Lord on the basis of a dakhila at a Jama of Tk. 66 and 7 annas in the year 1353 B. S and since then he was in possession of the suit land, after his death the plaintiff respondents have been possessing the suit land; that the remaining 13.22 decimals of land was given pattan to one Rahim Uddin at a Jama of Taka 9.78 annas. The plaintiffs predecessor Abdur Rahman being in possession settled 4.00 acres of land to one Abid Ali and 3.22 acres to one Emad Uddin Ahmed and put them in possession thereof; that thereafter the said Abdur Rahman, died leaving behind 3 (three) sons named Ansar Uddin, Akmal Husain and Amjad Husain.
3. The plaintiff’s predecessor remained in possession of rest 75.60 acres of land; that upon subsequent devolution the plaintiff Nos. 1-8 as the sons of Akmal Hossain and their uncle Amzad Hossain plaintiff No. 9 and plaintiff Nos. 11-16 as the heirs of Ansar Uddin inherited 75.60 acres of land and possessed the same on payment of rent and they were under the impression that the said land has been recorded in their names but subsequently it was detected that out of 92.28 acres only 13.22 acres of land have been in their names in R. S Khatin No.2 and the remaining lands have been wrongly recoded in the name of the government.
4. The Government i. e the defendant No.l appellant contested the said suit by filing written statement and contended that the suit is not maintainable and denied other material allegations made in the plaint and it was further stated that the suit land became khas land of the government and the same was correctly recorded in khatina No.l. The plaintiff’s predecessor never took pattan of the suit land from the ex-landlord. Taking advantage of the absence of original land Lord, the plaintiff’s predecessors in interest created some antedated and fabricated papers in order to grab the property and plaintiffs or their predecessor had no possession in the suit land.
5. The trial court decreed the suit finding right, title and possession of the plaintiffs in the suit land. Against the said decree, the defendant Government preferred appeal which was out of time by 4578 days with an application for condonation of delay under section 5 of the Limitation Act. The learned Additional District Judge found that the defendant could explain the delay and accordingly the lower appellate court condoned the delay and accepted the memorandum of appeal holding that appeal was not barred by limitation. -5
6. The learned appellate court also held that the plaintiff respondents could not prove their title and possession in the suit land on the basis of their alleged pattan; upon the aforesaid findings the appellate court set aside the judgment of the trial court and dismissed the plaintiffs suit.
7. Against the aforesaid judgment of reversal, the plaintiff respondents moved the High Court Division and obtained rule in Civil Revision No. 4340 of 1999 and the revision case was allowed by making the rule absolute. Hence is this appeal.
8. Leave was granted to consider whether the submission that the discretion exercised by the Lower Appellate Court in condoning the delay was correctly exercised and whether the order of reversal made by the High Court Division suffers from error.
9. In support of the appeal Mr. Musfiqur Rahman, learned Deputy Attorney General submits, inter-alia, that the learned Additional District Judge being last court of fact decided the point of limitation in favour of the appellant condoning the delay and the question being a mixed question of fact and law, the High Court Division committed error of law in reversing the finding of fact without any cogent reason. He further submits that the suit itself instituted by the plaintiff respondents is not maintainable and as such the impugned judgment and order of the High Court Division caused serious miscarriage of justice. The learned Deputy Attorney General referring to the decision in the case of Abdul Kader Mondal and others Vs Shamsur Rahman Chowdhury alias Shamsur Rahman Saha reported in 51 DLR (AD) 253 submits that the High Court Division failed to observe that refusal to condone the delay can result a meritorious matter being thrown out without any hearing whatsoever and as against his, when the delay is condoned the worst that can happen is that a case is decided on merit after hearing the parties, the opportunity that substantial justice shall take preponderance over technical consideration ought to have been kept in view by the High Court Division in deciding whether or not there was sufficient cause for the delay in filing the appeal.
10. Mr. A. M. Amin, learned Advocate-on-Record appearing on behalf of respondent Nos.7 and 8 opposes the appeal contending, inter-alia, that the trial court considered the facts and circumstances and correctly decreed the suit. He then submits that there being inordinate delay of 4578 in filing the appeal the High Court Division correctly decided the matter reversing the judgment and order passed by the Lower Appellate Court and as such the appeal is liable to be dismissed.
11. It appears that the Lower Appellate Court after hearing the parties observed; “The learned Government pleader has argued that to obtain opinion of various authorities concern before filing an appeal sometimes may reasonable be expected to elapse. Specifically the learned G. P. has mentioned that the Ministry of Land wanted the file for taking decision to prefer appeal, which remained in the Ministry for ling time and was also misplaced. So the government has sufficient explanation of delay. On the other hand the learned advocate for the plaintiff respondents argued that no such letter from the Ministry of Land is shown by the defendant-respondents. So there is no reason to believe that the case file was sent to the Ministry of Land, but the file was in the custody of Deputy Commissioner, Rangpur. But the submissions of the learned advocate from the plaintiff-respondents seems to be based on surmises. There is no proof of the contention that the file remained in the custody of Deputy Commissioner, Rangpur. On the other hand it appeared that the submission of the learned G. P has some substance. Because the Government machinery is inter dependent. So it takes sometimes in normal course. In an unusual incidence it takes more time to arrive in a decision. The learned G. P. has submitted a case law of 1 BLC (1996) page 105 in which it has been held;
“As the file of the government moved from one officer to the other officer within usual normal gap of time it can not be said that there had been gross negligence on the part of the government in filing the appeal for which the delay of 547 days in preferring the appeal was condoned.”
12. I think the principle laid down in the above cited case law has manner of application in this case. Because the file of the case was sent by Deputy Commissioner, Rangpur to Ministry of land for taking decision. It is probable and believable as the suit land is a vast land of 79.06 acres in which decision of the Ministry of land to prefer the appeal might have necessitated. So considering the above aspects I am inclined to hold that the delay occurred in presenting the memorandum of appeal though long but sufficient for acceptance of the reasons for condonation of delay. So the instant appeal is not barred by limitation.”
13. We have considered the impugned judgment and order of the High Court Division. It appears that the appellant explained the delay for filing the appeal offering sufficient reasons for the delay which were beyond control of the appellant and as such the Lower Appellate Court condoned the delay. The High Court Division on the other hand passed the impugned judgment and order without considering the cogent grounds assigned by the appellant and thus committed error in the decision. In view of the discussion made above we find substance in this appeal. The appeal is, therefore, allowed without any order as to costs. The impugned judgment and order of the High Court Division are set aside. The judgment and decree passed by the Additional district judge, Rangpur is restored, Consequently the suit stands dismissed.
Ed.
Source : III ADC (2006), 237.