Appellate Division Cases
(Civil)
PARTIES
Forest Ranger, Bhaluka Range Office, Mymensingh and others …….Petitioners
-Vs-
M/S. Hamid and sons Ltd. and others ……………………….Respondents.
JUSTICE
Syed J.R. Mudassir Husain CJ
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
Order Dated: 15th June 2005
The Code of Civil Procedure, Section 115
Under order 41 Rule 19 read with section 151 of the Code of Civil procedure praying for readmission of the appeal setting aside the order of dismissal……… (3)
Civil Petition for leave to appeal No. 196 of 2005 (From the judgment and Order dated
20.04.2004 passed by the High Court Division in Civil Revision No.4255 of 1997.)
AJ. Mohammad AH Attorney General, instructed by (Md. Ahsan Ullah Patwary,
Advocate-on-record ………………For the Petitioners
M.A. Samad, Senior Advocate (A.S.M. Shafiullah, Advocate with him) instructed by Mr. Nurul Islam Bhuiyan, Advocate-on-Record. For Respondent No.1 Not represente………..For the Respondent Nos. 2 &3
ORDER
1. Amirul Kabir Chowdhury J: Forest Ranger, Bhaluka Range Office and two other Officers being defendant Nos. 1-3 seek leave to appeal against the judgment and order dated 20.4.2004 passed by a Division Bench of the High Court Division in Civil Revision No. 4256 of 1997 making the rule absolute and thereby setting aside the impugned order of the Subordinate Judge (now Joint District Judge), 1st Court, Mymensingh in
Miscellaneous Case No. 60 of 1999.
2. Respondent Nos. 1-3 as plaintiffs instituted Title Suit No. 56 of 1990 before the learned Assistant Judge, Bhaluka for permanent injunction against the defendant petitioners stating, inter-alia, that the suit property belonged to Abdul Wahed Mridha in Rayoti Jote right and he possessed the same as such and the property was accordingly recorded in ROR and that he was in possession of the property on payment of rent and that on 12.11.1989 portion of the suit property was sold by him in favour of plaintiff Nos. 1 and 2 and that after his death his daughter Hajera Khatun and his wife Hasen Banu and other heirs also sold the suit property on various dates in favour of the plaintiffs and as such they are in possession thereof. It was further stated in the plaint that the property does not belong to forest department but still the defendant Nos. 1-3 have been threatening the plaintiffs to dispossess them on the plea that the land belonged to forest department and being afraid of forceful dis-possession they flet constrained to institute the suit. The suit was contested by the defendant petitioners. The trial court decreed the suit on 30.11.1991.
3. Being aggrieved the defendant petitioners preferred Other Appeal No. 30 of 1992 before the learned District Judge and on the date of hearing of the appeal no steps been taken on behalf of the appellants, the appeal was dismissed for default. Thereafter the appellants filed an application under order 41 Rule 19 read with section 151 of the Code of Civil procedure praying for readmission of the appeal setting aside the order of dismissal of the appeal and the said application was registered as miscellaneous Case No.60 of 1994. The learned Subordinate Judge after hearing the Miscellaneous Case allowed the same setting aside the order of dismissal and re-admitted the appeal. Against the aforesaid order of restoration of the appeal, plaintiff respondent filed revisional application before the High Court Division under section 115 of the Code of Civil procedure, which was registered as Civil Revision No. 4256 of 1997. The High Court Division by the impugned judgment and order made the rule absolute, thereby reversed the judgment and order passed by the Subordinate Jude. Hence is this petition.
4. Mr. A.J. Mohammad Ali, learned Attorney General appearing on behalf of the petitioners submits, inter-alia, that the suit property was acquired by the Government vide Gazettee Notification dated 2.4.1956 and vested in the defendant No. 1 under section 7 of East Bengal Private Forest Act. 1949 as per Gazette Notification dated 12.02.1983 and
that the claim of the plaintiff respondents in such view of the matter has/had no leg to
stand. He thereafter submits that the cogent explanation being offered for the delay in filling the Miscellaneous Case under Order 41, Rule 19 of the Code of Civil Procedure the High Court Division committed error in passing the impugned judgment and order reversing those of the Subordinate Judge who readmitted and restored the appeal.
5. Mr. M.A.Samad, learned Senior Advocate on the other hand appearing for the respondent supports the impugned judgment and submits that there is no error in the impugned judgment and so the petition is liable to be dismissed.
6. In view of the above the submissions made by the learned Attorney General merit consideration. Leave is therefore granted to consider the following grounds: ” For that the Single Bench of the High Court Division erred in holding that the lower Appellate Court did not consider the question of limitation and no such reflection has been made in the order of re-admission, although the learned Court below sufficiently discussed the matter and rightly allowed the Miscellaneous Case filed under order XLI read with section 151 of the Code of Civil Procedure. For that the Single Bench of the High Court Division erred in failing to consider the facts, that the suit land was acquired by the Government vide Gazette notification dated 2.4.1956 and subsequently the Secretary of the Board of Revenue by letters dated 19.1.1950 and 9.2.1955 gave responsibility of the suit land to the Forest Department (the present petitioners) for managing the suit land. For that the learned Single Bench of the High Court Division erred in holding that the suit for permanent injunction was not maintainable and in exercising inherent power of the court.”
7. The petitioners are also permitted to prepare paper book out of court in accordance with rules.
8. Stay granted earlier be further extended till disposal of the appeal.
Ed.
Source: IV ADC (2007), 148