Appellate Division Cases
(Civil)
PARTIES
Manirunnessa Khanam and another ………………… Petitioners.
-VS-
Syed Madassir Ali and another ………………………….. Respondents.
JUSTICE
Md. Ruhul Amin J
Md. Tafazzul Islam J
JUDGEMENT DATE: 16th July 2006
The Code of Civil Procedure on section 115(1). Order XXVI rule 10(3) of the Code of Civil Procedure. (1) of Rule 388(2) of the Civil Rules and Order. 4 BLC (AD) 102 and 21 BLD (AD) 136 44 DLR 242 and 23 BLD 158. Safaruddin and others vs. Fazlul Huq and others reported in 49 DLR (AD) 151. Bijoy Kumar Saha vs. Deputy Commissioner,
Chuadanga and others reported in 23 BLD 185. Falguni Majumder vs. Mokbul Hossain
Biswas, 4 BLC (AD) 5.
The appeal is against rejecting the application For rehearing of the Rule which was discharged exparte by judgment …………………. (1)
The High Court Division, being a supervisory power, may be exercised even suo-motu in the interest of justice and so the High Court Division is not obliged to hear the parties before pronouncing its verdict when the parties concerned had opportunity to appear but refrained from doing so; in the case of Buddhi Sankar Biswas vs. Akbar Ali Sheikh reported in 44 DLR 242 it has been held that after disposal of civil revision under section 115(1) of the Code of Civil Procedure on merit by a regular judgment, the court being no more in the seisin of the matter cannot rehear the revision which was in the meantime was decided on merit; in the case of Bijoy Kumar Saha vs. Deputy Commissioner, Chuadanga and others reported in 23 BLD 158 ……………………… (4)
In view of the absence of the signature of the petitioner’s Advocate in the margin of the order sheet it cannot be said that the order was not known to the petitioner’s Advocate; moreover there is also no allegation that the petitioners were not aware of
the conditional order and so the learned District Judge committed no error in passing the impugned orders dated 26.10.1991 and 6.11.1991 and so no useful purpose will be served by rehearing the Rule ……………….. (4)
J.N. Deb, Advocate, instructed by A.KM. Shahidul Huq, Advocate-on-Record………………For the
Petitioners. Nurul Islam Bhuiyan, Advocate-on-Record. …………For Respondent No.l
Respondent No.2…………………. Not represented.
JUDGMENT
1. Md. Tafazzul Islam J : This petition for leave to appeal arises out of the judgment and order dated 26th July, 2004 passed by a Single Bench of the High Court Division in Civil Revision 14 of 1992 rejecting the application for rehearing of the Rule which was discharged exparte by judgment and order dated 11.5.2003. The above Civil Revision No. 14 of 1992 was filed against the judgment dated 26.10.1991 passed by the learned District Judge, Sylhet in Miscellaneous Case No. 72 of 1982 rejecting the prayer of the petitioner for local investigating and also against the judgment dated 6.11.1991 by which the learned District Judge, Sylhet in the same miscellaneous case refused to reconsider his order dated 26.10.1991 on the ground that there was no scope of revising the above order.
2.The petitioners filed the above miscellaneous case challenging the order dated 21.5.1982 passed by” the Administrator of Waqfs in Enrolment “Case No. 22 of 1978 in enrolling 3.57 acres of land, as described in schedule of the above enrolment case, as wakf property and also for a declaration that the schedule land is not a waqf property on the averments that the petitioners are the descendants of Shah Mallum Awalia who was buried in a place which is a part of their family homestead; during last SA operation the
schedule land was surveyed and each dags thereof comprised lands used by the petitioners for the purpose incidental to their homestead; the respondents filed a petition on 3.3.1978 before the Administrator of Waqfs for enrolment of some dags of the schedule land as a public waqf whereupon, after hearing but without any notice to many of the petitioners and other co-sharers and also without any spot verification or taking evidence, order was passed for enrolment of the schedule and as waqf property with Md. Madaris Ali Shah, the original petitioner No.l, as Mutwali, the respondents filed written objection in the above miscellaneous case stating, inter alia, that all the dags as mentioned in the schedule by their very nature constituted a waqf; during pendency of the above miscellaneous case the petitioners on 31.8.1983 applied for local investigation for determining the nature and feature of the schedule land and the learned District Judge by order dated 4.9.1983, on condition of payment by the petitioners the fees of commissioner, issued commission for local investigation; the petitioners paid the fees and the commissioner; on 12.12.1986, submitted report without proper relayment of the SA map and also without appropriate classification of the schedule land; both the parties then filed objection against the above report and after hearing the learned District Judge by order dated 2.10.1991 rejected the above report and fixed 6.10.1991 for taking steps even though on rejection of the above report it was incumbent upon the learned District Judge to issue a fresh commission; so the petitioners on 3.10.1991 had to apply for issuance of fresh commission for local investigation and on 19.10.1991 order was passed for fresh commission with a clause to the effect that the petitioner within 26.10.1991 will have to deposit Tk. 1000/- against commissioner’s fee for local investigations and in case of default the prayer for local investigation shall be deemed to have been rejected and although in the said order direction was given for informing the parties but the said order
was not shown to either of the parties or even to their learned advocates, and further in the cause list the default clause was not mentioned and it merely showed that the next date of the case has been fixed on 26.10.1991 for deposit of costs; the petitioners having no knowledge of the default clause failed to deposit the costs; thereafter on coming to know about the order dated 19.10.1991, in mid Kartik, the petitioners filed an application praying for 3 weeks time for depositing the cost but without any hearing by order dated
26.10.1991 the above application was rejected with a direction to inform the parties but again the above order dated 26.10.1991 not being shown to either of the parties the petitioners remained completely in dark about the said order but however from the cases list the petitioners came to know that the case was fixed no 20.11.1991 for final hearing; accordingly on 2.11.1991 the petitioners filed an application praying for relieving them of the penal consequence of their default in depositing the costs within 26.10.1991 and for receiving the amount of cost from them submitting that they had no knowledge of the default clause but the learned District Judge, by order dated 6.11.1991. rejected the above application on the ground that after passing the order dated 26.10.1991 he had no scope to withdraw the above order, the petitioner then moved the High Court Division and obtained Rule in Civil Revision No. 14 of 1992 and obtained an order of stay for 3 months which was subsequently was extended till disposal of the Rule; the petitioner being of the impression that their sole engaged lawyer Mr. Jitendra Narayan Deb was looking after the above civil revision and was taking all necessary steps in the above revision and the petitioners would be duly informed when the above revision will come up for hearing but however the petitioner No.6, who went to his business place at Fenchugonj Bazar on 21.5.2004. came to know from his employee Rafique Mia that the
responednts gave out in the locality that they got the case in their favour in the High Court Division and then he on 23.5.2004 rushed to Dhaka and on query came to know that their sole lawyer Mr. Jitendra Narayan Deb expired on 5.6.1995. then the petitioner No.6 instantly engaged Mr. J.N. Deb, son of late Jitendra Narayan Deb, as his lawyer and then the office of Mr. Deb, on making inquiry in the concerned section of the High Court Division, came to know that on 11.5.2003, the above civil revision, being listed in the daily cause list for hearing, was taken up for hearing and the learned Advocates for both the parties being found absent by judgment and order dated 21.5.2003 which was made ready on 29.6.2004, filed an application before the High Court Division praying for re-hearing of the Rule but the High Court Division rejected the said prayer.
3. The learned counsel for the petitioners submits that the at the time of hearing of the application for rehearing before the High Court Division, the decisions reported in 4
BLC (AD) 102 and 21 BLD (AD) 136 wherein this Division endorsed the scope of re-hearing of a civil revisional application heard earlier on merit, were cited in support of the prayer for rehearing but the High Court Division rejected the prayer for re-hearing relying on the decision reported in 44 DLR 242 and BLD 158 though the decisions of this Division are binding upon the High Court Division; the High Court Division while rejection the prayer for re-hearing did not at all consider that the uncontroverted assertion about the death of the sole engaged lawyer of the petitioners on 5.6.1995 and the consequent ignorance of the petitioners of the fact that the Rule was heard on 21.5.2003 in the absence of their sole engaged lawyer who since died, were enough to prove that in view of the death of their sole engaged lawyer the Rule, which came up in the cause list for hearing, was not at all ready for hearing for want of service of notice under Form N-10 upon the petitioners; the High Court Division while rejecting the prayer for re-hearing also failed to notice that in the default order dated 19.10.1991 the learned District Judge, Sylhet clearly mentioned “(Bangla)” but admittedly the said order was neither communicated to the parties nor was shown to any of the advocates of the parties which is mandatory in view of the provisions of Rule 388 of the Civil Rules and Order; the second impugned order dated 6.11.1991 rejecting the prayer for reconsideration of the order dated 26.10.1991 was liable to be set aside because in terms of the order for local investigation passed on 4.9.1983 the petitioners deposited commissioner’s fees and then the commissioner submitted his report on 12.12.1986 and the said report being rejected upon objection by both the parties, in view of the provisions of Order XXVI rule 10(3) of the Code of Civil Procedure, in such situation it was incumbent upon the learned District Judge to instantly direct for further investigation and so the fixing next date for taking steps was not legal and further the order dated 26.10.1991 was passed at much later date after the hearing was concluded and the petitioners or their learned Advocates had no knowledge of the default clause of the order dated 19.10.1991 as evident from the contents of order dated 19.10.1991 itself as at the end of this order the learned District Judge directed the office to inform the concerned parties about the order but admittedly the said order was neither communicated to both the parties nor shown to the learned Advocates of both the parties.
4. As it appears the High Court Division discharged the Rule holding that the civil revision was disposed of on merit by a regular judgment discharging the Rule as the learned advocates of both the sides were found absent; in the case of Safaruddin and others vs. Fazlul Huq and others reported in 49 DLR(AD) 151 it has been held that the revisional power of the High Court Division, being a supervisory power, may be exercised even suo-motu in the interest of justice and so the High Court Division is not obliged to hear the parties before pronouncing its verdict when the parties concerned had opportunity to appear but refrained from doing so; in the case of Buddhi Sankar Biswas vs. Akbar Ali Sheikh reported in 44OLR 242 it has been held that after disposal of civil revision under section 115(1) of the Code of Civil Procedure on merit by a regular judgment, the court being no more in the seisin of the matter cannot rehear the revision
which was in the meantime was decided on merit; in the case of Bijoy Kumar Saha vs.
Deputy Commissioner, Chuadanga and others reported in 23 BLD 158 it has been held that after a civil revision has been disposed of by the High Court Division on merit by a regular judgment, the matter having reached its finality, the High Court Division is not competent to reopen the closed chapter on any pretest and so, after disposal of the civil revision under section 115(1) of the Code of Civil Procedure on merit by a regular judgment, there is no further scope for revisional Court to rehear the same and so the aggrieved ought to have preferred appeal to the Appellate Division; the facts and circumstances of the case of Falguni Majumder vs. Mokbul Hossain Biswas and other reported in 4 BLC (AD) 5 and the case of Hasan Azam and others vs. Most. Rabeya Khatun and others reported in 21 BLD (AD) 136 cited by the learned Advocate for the petitioners before the High Court Division are distinguishable from the facts of the instant case as in those cases, the question as to whether there was any scope .of rehearing of a civil revision decided on merit by a regular judgment, was not raised and decided and in the above decisions no principle of law was also enunciated to the effect that rehearing of a civil revision, which was disposed of on merit by a regular judgment, was permissible and so those cases are of no help to the petitioners; in the Code of Civil Procedure there is no provision for rehearing of the civil revision disposed of on merit by writing full judgment on merit; the provisions of Order XLI Rule 21 CPC are applicable in case of appeals and not in the case of civil revisions; by the order dated 19.10.1991 passed by the learned District Judge Sylhet the application filed by the petitioners was allowed subject to payment of commissioner’s fees of Tk.100/- on or before 26.10.1991 and by the words “(Bangla)” the deposit of Tk.1000/- within that date was made condition precedent and further the above order was passed after hearing the learned lawyers of both the sides and also in their presence and so the direction of informing the order to the parties was redundant specially when Note (1) of Rule 388(2) of the Civil Rules and Order provides that it is for the Advocate to be present at the proceeding to make themselves acquainted with the order passed and it is not the duty of the officers of the Court to call upon the advocates to show the orders issued or to inform them of the nature of the orders passed and so in view of the absence of the signature of the petitioner’s Advocate in the margin of the order sheet it cannot be said that the order was not known to the petitioner’s Advocate; moreover there is also no allegation that the petitioners were not aware of the conditional order and so the learned District Judge committed no error in passing the impugned orders dated 26.10.1991 and 6.11.1991 and so no useful purpose will be served by rehearing the Rule.
5. We are of the view that the High Court Division after due consideration of the materials on record and applying the correct principle of law as applicable in the present case arrived at the correct decision and there is no cogent reason to interfere with the same.
6. The petition is dismissed.
Ed.
Source: IV ADC (2007), 288