Appellate Division Cases
(Civil)
PARTIES
Mahmuda Khatun and others ……….. .Plaintiff- Appellants.
-vs
1. Abul Younus Talukder being dead his heirs:
1. (a) Mrs. Yunus Ali Talukder and others ……………Defendant- Respondents.
JUSTICE
A.T.M. Afzal C J
Latifur Rahman J
Mohammad Abdur Rouf J
Mohammad Ismailuddin Sarker J
JUDGEMENT DATED : 29th November 1995
The Limitation Act, (IX of 1872) Section 5 . Exparte order was set aside on 8-8-79
The Code of Civil Procedure (V of1908),
Section 151.
Rule 13, Order IX 44DLR. (AD) 1.
Whether in view of the decision of this Division that interest in a monthly tenancy is heritable and the fact that the exparte decree obtained in O.C. Suit No. 29 of 1972 has no direct bearing on landlord tenancy relationship (3)
Substitution of the heirs of said Dr. Ismail Khan and the orders passed by that court allowing substitution of those heirs. On the basis of those records Mr. Khan submitted that five sons and the wife of said Dr. Ismail Khan were duly made parties in the Misc. case on 21-3-74 vide Court’s Order No. 29 dated 21-3-74 and one son and three daughters were made parties vide Court’s order dated 11-6-80. The copies of the relevant applications were duly served upon the present appellants. They did not challenge those orders and as such they are not legally entitled to raise objection now upon absolutely baseless and wrong assumption that those heirs of deceased Dr. Ismail Khan having not been made parties in the Misc. case it stood abated ..(5)
Exparte order was set aside on 8-8-79 and the case was restored to its number and file. Thereafter the appellants took objection that another son and three daughters of late Dr. Md. Ismail Khan were not made parties in the Misc. case. To meet such objection an application was filed on 8-6-80 for adding those left out heirs as parties and the copy of application was served on the Advocate of the appellant on 9-6-80 and the same was allowed by the trial Court by Order No. 80 dated 11-6-80. The appellant did not take any step against that order of the trial Court and rather they accepted it (7)
Civil Appeal No. 12 of 1992
(From the Judgment and Order dated 12-8-91 passed by the High Court Division in Civil Revision No. 482 of 1988)
S .R. Pal, Senior Advocate, Supreme Court, (Shawkat Ali Khan, Senior Advocate, Supreme Court, with him), instructed by Sharifuddin Chaklader, Advocate on Record. For the Appellants.
T.H. Khan, Senior Advocate, Supreme Court, (M.A. Wahhab Miah, Advocate, Supreme Court, with him) instructed by M. Nawab AH, Advocate on Record For Respondent No. 1.
Not represented. Respondent No. 2.
JUDGMENT
1. Muhammad Abdur Rouf J:- This appeal by leave has been preferred by 3 (three) substituted heirs of the plaintiff late Dr. Md. Ismail Khan from the judgment and order of a learned Single Judge of the High Court Division dated 12-8-91 passed in Civil Revision No. 482 of 1988 discharging the Rule and upholding thereby the judgment and order dated 24-4-88 passed by the learned Senior Assistant Judge, Sadar Mymensingh, allowing the Misc. Case No. 127 of 1984 under Rule 13, Order IX of the Code of Civil Procedure and setting aside the exparte decree passed on 17-8-72 in O.C. Suit No. 29 of 1972.
2. The predecessor of the present Respondent Nos. 1 (a) to l(j) late Abdul Yunus Talukder and his full sister the RespondentNo. 2 as the plaintiff Nos. 2 and 1 respectively brought the S.C.C. Suit No. 16 of 1968 against Dr. Md. Ismail Khan (since dead), predecessor of the present appellants and his son the appellant No. 2 A.B.M. Emdadul Huq as defendnt Nos. 1 and 2 respectively for their ejectment from the suit premises as the monthly ejectable tenant on the ground of default in the payment of monthly rent. The suit was decreed exparte on 15-7-69. Thereafter those defendants as plaintiffs instituted the O.C. Suit No. 29 of 1972 against said Yunus Talukder and the Respondent No. 2 as defendants for declaration that the said decree of the S.C.C. suit was illegal, void etc. and permanent injunction for restraining the defendant decree-holders from executing said decree which was also decreed exparte on 17-8-72. Against which on 9-8-73 the Misc. Case No. 217 of 1973 under Rule 13, Order IX of the Code of Civil Procedure with an application under Section 5 of the Limitation Act was filed by the defendants stating, inter alia, that on 4-6-72 police arrested the defendant Yunus Talukder under Collaborator Order, 1972 and till 11-7-73 he had been in jail custody and as such he was prevented from appearing on 17-8-72, when the suit was decreed exparte. The appellants contested the case. It was once allowed exparte on 2-11-77. But upon an application filed there against on 31-1-79 by the appellants under section 151 of the Code of Civil Procedure the exparte order was set aside on 8-8-79 and thereby the Misc. Case was restored to its number and file. Subsequently it was renumbered as Misc. Case No. 127 of 1984 and ultimately it was allowed on contest on 24-4-88. Against which the appellants moved the High Court Division and obtained a Rule in the aforesaid Civil Revision case, which was discharged on contest by the judgment and order appealed from.
3. Leave was granted virtually to consider as to whether in view of the decision of this Division that interest in a monthly tenancy is heritable and the fact that the exparte decree obtained in O.C. Suit No. 29 of 1972 has no direct bearing on landlord tenancy relationship, the High Court Division erred in law in not holding that the Misc. Case initiated under Rule 13, Order IX C.P.C. had abated for not making all the heirs of deceased plaintiff Dr. Md. Ismail Khan as parties to the case.
4. Citing the decision of this Division in the case of Prodip Das and others vs. Kazal Das Sharma and others reported in 44 D.L.R. (AD) 1, Mr. S.R. Pal, learned Advocate of the Appellants, sought to argue that the decree passed in O.C. Suit No. 29 of 1972 being an indivisible one and all the heirs of the decree-holder late Dr. Md. Ismail Khan having not been made parties in the Misc. Case No. 127 of 1984 the same stood abated and as such both the learned Assistant Judge and the High Court Division committed an error of law in not dismissing the said Misc. case.
5. On the other hand Mr. T.H. Khan, learned Advocate appearing for the Respondents, referred to the statements made in para. 7 of their Counter-Affidavit filed before the High Court Division, (from the additional paper book) the applications filed by the respondents in the trial Court for substitution of the heirs of said Dr. Ismail Khan and the orders passed by that court allowing substitution of those heirs. On the basis of those records Mr. Khan submitted that five sons and the wife of said Dr. Ismail Khan were duly made parties in the Misc. case on 21-3-74 vide Court’s Order No. 29 dated 21-3-74 and one son and three daughters were made parties vide Court’s order dated 11-6-80. The copies of the relevant applications were duly served upon the present appellants. They did not challenge those orders and as such they are not legally entitled to raise objection now upon absolutely baseless and wrong assumption that those heirs of deceased Dr. Ismail Khan having not been made parties in the Misc. case it stood abated.
6. On the face of Order No. 29 dated 293-74 and Order No. 80 dated 11-6-80 of the trial Court and the corresponding applications, annexure- X and X-2 respectively in the additional paper book filed on behalf of the Respondent, Mr. S.R. Pal found it difficult to press the point further that for non inclusion of the heirs of late Dr. Md. Ismail Khan the Misc. Case stood abated and thereby the trial Court illegally allowed the Misc. case which has been upheld by the High Court Division by the impugned judgment and order. Identical objections were also taken before the trial Court on behalf of the present appellants and the same was turned down holding that on 21-3-74 five sons and the wife of said Dr. Ismail Khan had been made parties in the Misc. case and thereafter upon an objection raised by the Respondent No.3 another son and three daughters of said late Dr. Md. Ismail Khan had been added as parties in the Misc. case on 11-6-80. Moreover said Md. Yunus Talukder in para 7 of his Counter-Affidavit filed before the High Court Division clearly stated that left out heirs of said Dr. Ismail Khan had been added as parties in the Misc. cases by the Order of the trial Court dated 11-6-80 and the appellants who were petitioners before the High Court Division did not controvert such statements of said Yunus Talikder. It appears that those facts were lost sight of in the High Court Division, and the question of substitution of all the heirs of deceased Dr. Ismail was unnecessarily taken up for consideration.
7. It needs to be mentioned that the Misc. case in question was once allowed exparte on 2-11-77, and after more than one year upon an application moved by the appellants on 31-1-79 under section 151 of the Code of Civil Procedure the exparte order was set aside on 8-8-79 and the case was restored to its number and file. Thereafter the appellants took objection that another son and three daughters of late Dr. Md. Ismail Khan were not made parties in the Misc. case. To meet such objection an application was filed on 8-6-80 for adding those left out heirs as parties and the copy of application was served on the Advocate of the appellant on 9-6-80 and the same was allowed by the trial Court by Order No. 80 dated 11-6-80. The appellant did not take any step against that order of the trial Court and rather they accepted it.
8. Thus, in the facts and circumstances of the case we find little substance in this appeal. Accordingly, it is dismissed with costs.
Ed.
Source : III ADC (2006), 151.