Khairun Begum and others Vs. Abdul Malik and another, 2003

Supreme Court

Appellate Division

(Civil)

Present:

Md. Ruhul Amin J

Abu Sayeed Ahammed J

Md. Hamidul Haque J

 Khairun Begum and others…. Appellants

Vs.

Abdul Malik and another…………Respondents

 Judgment

July 6, 2003.

Case Referred to-

Siddique Vs. Yeakuti Begum, 49 DLR (AD) 402.

Lawyers Involved:

Mahbubey Alam, Senior Advocate, instruct­ed by Md. Nawab Ali, Advocate on-Record – For the Appellants.

Dr. Ahmed Ali, Advocate, instructed by Ataul Hoq, Advocate-on-Record-For Respondent No. 1.

Not represented – Respondent No. 2.

Civil Appeal No. 83 of 1999.

(From the Judgment and Order dated 12.1.1999 passed by the High Court Division in Civil Revision No. 2260 of 1998).

Judgment

Md. Hamidul Haque J. – The appellants were defendants in Title Suit No. 93 of 1987 of the Court of Subordinate Judge, 1st Court, Moulvibazar. The suit was filed for a decree for specific performance of contract. The plaintiff alleged that kanu Miah, the predecessor of the defendants executed a bainpatra for sale of the suit land but delayed the execution of the deed on different pleas and died leaving behind the defendants as his heirs. When the plaintiff approached the defendants they also refused to execute any sale deed in favour of the plaintiff on the ground that the bainapatra was not gen­uine and was not executed by their predecessor Kanu Miah.

2. The defendants appeared and filed an application with a prayer for examination of the signature of Kanu Miah found in the bainapatra with his admitted signature and a date was fixed for depositing expert fee. But the defendant did not deposit the fee on that date. So the suit was fixed for peremptory hearing on 15.5.93 but on that date, in the absence of both the parties, the suit was dismissed for default. The plaintiff them filed an application under Order 9, Rule 4 of the Code of Civil Procedure and Misc. Case No. 14 of 1993 was started, that case was allowed ex-parte and the suit was restored to its original file and number and ultimately the suit was also decreed ex parte on 1.11.1994.

3. The defendants then filed an application under Order 9, Rule 13 of the Code of Civil Procedure, which was registered as Misc. Case No. 20 of 1996 with a prayer for condonation of delay. But the trial Court disallowed the case on 20.10.1996. Then the defendants preferred an appeal, which is Misc. Appeal No. 1 of 1997, the appeal was allowed on 22.9.1997 and the suit was restored by setting aside the ex-parte decree.

4. The plaintiff then filed an application under Order 47, Rule 1 of the Code of Civil Procedure for review of the order passed by the appellate court on 22.9.1997. This application was registered as Misc. Case No. 17 of 1997. This application was registered as Misc. Case No. 17 of 1997 and after hearing both the par­ties review petition was also rejected. Then the plaintiff filed Civil Revision No. 2260 of 1998. The Rule issued in that revision was made absolute and the learned Single Judge set aside the order of the appellate court.

5. Being aggrieved, the defendants moved this court for leave to appeal against the order of the High Court Division dated 12.1.1999 in Civil Petition No. 2260 of 1998. Leave was granted to consider whether the learned Single Judge of the High Court Division was wrong in passing the impugned order in the Civil Revision when the plaintiff did not challenge the order passed in the review though the order of review merged with the order passed in the Misc. Appeal. Leave was also granted to consider whether the order passed by the appellate court amounts to condonation of delay and the learned Single Judge fell in an error of law in reversing the judgment and order of the lower appellate court on the ground of delay.

6. Mr. Mahbubey Alam, Senior Advocate appeared on behalf of the appellants and he has mainly confined his argument on the point that the order passed in the review petition having been merged with the earlier order passed in Misc. Appeal No. 1 of 1997, the Civil Revision which was filed to challenge only the order passed in the above Misc. Appeal was not main­tainable. After taking us through the order of the High Court Division passed in the above Civil Revision he has submitted that the High Court Division to totally silent on this point though this point was agitated before the High Court Division. Lastly, he has argued that the order passed by the appellate court in the Misc. Appeal No. 1 of 1997 does not amount to con­donation of delay because the appellate court considered the point fro another angle and held that as no notice was served upon the defen­dants after restoration of the Misc. Case filed under Order 9, Rule 4 of the Code of Civil Procedure, the question of delay did not arise.

7. Dr. Ahmed Ali, who appeared on behalf of the plaintiff respondent has argued that the petitioners were aware of the restoration of the suit after the Misc. Case filed under Order 9, Rule 4 was allowed and the learned Advocate for the defendants were informed of the restora­tion. Moreover, he has argued that after restora­tion “Hazira” was filed on behalf of the defen­dants on 16.4.1994. According to him the defendants were aware of the restoration of the original suit and as they did not appear on the date of peremptory hearing, the Appellate court was wrong in allowing the appeal and the learned Single Judge rightly, set aside the judg­ment and order passed by the appellate Court. He has also argued that the order passed by the appellate court in the Misc. Appeal amounts to condonation of delay. He has argued that the defendant petitioners being aware of the restoration of the suit had no reason to remain absent on the date of hearing of the suit and as such the lower court rightly disallowed the Misc. case under order 9, Rule 13 and the learned Single Judge also rightly affirmed the decision of the lower court.

8. We have considered the submissions advanced on behalf of both the parties. As we have already mentioned that leave was granted to consider whether the civil revision which was filed only against the order dated 22.9.97 passed in the Misc. appeal without challenging the order passed in the revive petition on 30.3.98 was maintainable, we have to consider this question first. The learned Advocate for the petitioner, after taking us through the judgment of the High Court Division, has submitted that though the above point was agitated before the High Court Division, the learned Single Judge did not give any specific finding on the question of maintainability. On perusal of the judgment of the High Court Division, we find that actual­ly there is no discussion on his question of maintainability. The learned Single Judge has observed that the petitioner has not challenged the order of review dated 30.3.1998 but chal­lenged the order of the appellate Court dated 22.9.1997. So we find that there is no specific observation the High Court Division on the question of maintainability which was raised in the Civil revision.

9. Now, admittedly after the Misc. appeal was allowed by the learned Additional District Judge, the plaintiffs filed a review petition under Order 41, Rule 27 of the Code of Civil Procedure. That review petition was dismissed on 30.3.1998. While dismissing the review petition, the learned Additional District Judge observed that the findings given in the Misc. appeal were in accordance with law and no new facts were introduced. The learned Additional Judge also referred to the decision reported in 49 DLR (AD) 402. It further appears that the earlier order passed in Misc. Appeal No. 1 of 1997 was slightly modified while dismissing the review petition and the court directed the appellants to pay compensation of Tk. 2,000/- to the plaintiffs. In the Civil revision the plain­tiff only challenged the order passed in the Misc. appeal. The legal position is that the order passed in the review remained unchallenged. If only the order passed in the Misc. appeal is challenged and if the order passed in review remains unchallenged, an anomalous position will arise. The learned Single Judge did not take notice of this legal position while making the Rule absolute in the civil revision.

10. The learned Advocate for the plaintiffs has argued that the defendants were although aware of the restoration of the original suit and the application under order 9, Rule 13 of the Code of Civil Procedure was barred by time. The learned Advocate has given emphasis on two facts, first, the order of restoration was showtl to the learned Advocate for the defen­dants and second, a “Hazira” was filed on behalf of the defendants in that suit. It appears to us that the order of restoration was shown to the original lawyer of the defendants after more than 8 months from the date of restoration. It further appears that a “Hezira” was filed by the lawyer in that suit but that was filed before the suit was fixed for peremptory hearing after restoration. The learned Additional District Judge explanted the legal position that no notice was served upon the defendants after the Misc. Case under Order 9, Rule 4 of the Code of Civil Procedure was restored ex parte. On this point, the learned Additional District Judge relied on the decision in the case of Siddique Vs. Yeakuti Begum reported in 49 DLR (AD) 402. The learned Single Judge remained silent on this point. In the instant case before us we fined that actually no notice was served upon the defen­dants after restoration of the suit on the basis of the order passed in Misc. cases filed under order 9, Rule 4 of the Code of Civil Procedure. It is true that it is no the record that the order of restoration was shown to the learned Advocate for the defendants but this was shown after more than 8 (eight) months from the date of the order. As regards the “Hazira” we have noticed that this was filed before the suit was fixed for peremptory hearing. It is admitted fact that no notice was served upon the defendants after restoration of the suit and even the learned Advocate who was engaged earlier was informed of the restoration after about 8(eight) months. Considering the above position, we are of the view that the learned Additional District Judge rightly allowed the appeal. On the other hand, the learned Single Judge did not consider the above legal position while making the Rule absolute in the civil revision and perhaps for this reason, the learned Single Judge failed to arrive at a correct decision.

In the result, the appeal is allowed without and order as to costs. The impugned judgment and order of the High Court Division are set aside.

Ed.

Source : II ADC (2005) 143

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