Appellate Division Cases
(Civil)
PARTIES
Mazu Bibi and others ………………………………..Appellants.
-vs-
Mosammat Rabeya Begum and others…………….. Respondents
JUDGES
Md. Ruhul Amin, J
Md. Tafazzul Islam, J
Date of Judgment
6th April, 2006
Under Order IX. Rule 13 of the Code of Civil Procedure (CPC)
The suit was filed seeking declaration of title in respect of 4.69 acres of land and confirmation of possession as to part of the land in suit and recovery of possession as to part of the property in suit and for permanent injunction (2)
Miscellaneous Case was hopelessly barred by limitation since the same was filed beyond 30 days from the date of decree or at the latest having had not been filed on the 1st of November, 1983 i.e. on the reopening of the Court after vacation. He continued that although defendants tried to establish that the Miscellaneous Case was not barred by limitation by examining P.W.4, the clerk of the defendants’ learned Advocate, but his evidence was of no use for the defendants since the person to whom, i.e. defendant No.4, he disclosed on 1.11.1983 about the fact of disposal of the suit by ex-parte decree did not depose in the case and thus the initial knowledge about the ex-parte decree remained Civil Appeal No.2 of 2002 (From the Judgment and Order dated December 2.1997 passed by the High Court Division in Civil Revision No.3504 of 1991) unestablished and consequent thereupon the Miscellaneous Case filed on 6.11.1983 was certainly barred by limitation, since defendants were required to file the suit on 1st of November, 1983 as period of limitation was intervened by civil Court vacation and the civil Court re-opened on 1st of November, 1983 (12)
ADVOCATES
A.K.M. Shahidul Huq, Advocale-onrecord For the Appellants Sxed Mahbubur Rahman, Advocate-onrecord For Respondent Nos.1-5 Not represented Respondent Nos.6-57
JUDGMENT
1. MD. Ruhul Amin. J: The appeal, by leave, is by the petitioners in the Miscellaneous Case against the judgment dated December 2, 1997 of a Single Bench of the High Court Division in Civil Revision No.3504 of 1991 making the Rule absolute obtained against the judgment and order dated November 30, 1989 of the Court of District Judge. Magura in Miscellaneous appeal No.26 of 1985 setting aside the judgment and order dated May 30. 1985 (Order” No.48 dated 30.5.1985) in Miscellaneous Case No.214 of 1983 dismissing the same. The Miscellaneous Case was registered upon an application filed on
November 6. 1983 under Order IX, Rule 13 of the Code of Civil Procedure (CPC) seeking setting aside of the ex-parte decree dated September 26. 1983 passed in Title Suit No. 849 of 1979.
2. The suit was filed seeking declaration of title in respect of 4.69 acres of land and confirmation of possession as to part of the land in suit and recovery of possession as to part of the property in suit and for permanent injunction. The suit was filed making averments that land measuring 5.04 acres belonged to and possessed by Zinder Sheikh and Harun Sheikh and in their names C.S. khatian was prepared, that Zinder Sheikh by amicable arrangement was enjoying 4.23 acres of land and he died leaving 2 sons, i. e. plaintiff Nos.l and 2 and a daughter plaintiff No.3. that at the time of death of Zinder Sheikh plaintiffs were minor and that immediately after the death of zinder sheikh when preparation of record of right was started the plaintiffs being minor they could not get the record prepared in their names and in that state of the matter land in suit was wrongly recorded in the name of the predecessor of the defendants, that as against the wrong record while the plaintiffs were taking step for filing suit the defendants dispos.J sessed the plaintiffs from the ‘kha’ schedule land in Bhadra 1386 B.S. although they have no right title and interest in the land wherefrom they dispossessed the plaintiffs, that plaintiffs have their homestead in ‘ka’ schedule land and that taking advantage of wrong record of right the defendants are preparing themselves to demolish the plaintiffs’ hut and
to dispossess them from the ‘ka’ schedule land and in the afore state of the matter plaintiffs are constrained to file the suit.
3. The defendant Nos.l and 2 contested the suit by filing written statement denying the material averments made in the plaint and stating, inter alia, that the land in suit belonged to Biddut Lata Shengupta who acquired the same by auction purchase and she transferred the land in suit to zinder sheikh who executed a kabuliyat in favour of Biddut lata Shengupta, that Zinder Sheikh lateron transferred the land to Harish Chandra Nani Bala and others and they transferred the land to the defendant Nos.l and 2 by registered kabala and thus they acquired right, title and interest in the land in suit and accordingly S.A. record was prepared in their names, that defendants acquired the right, title and interest in the land in suit by various kabalas, that plaintiffs earlier filed Title Suit No.418 of 1976 and that while the defendants were contesting the said suit the same was withdrawn, that the plaintiffs have filed the suit making untrue statements, that after service of summons the defendants entered appearance in the Title Suit No.849 of 1979 and filed written statement.
4. The suit was fixed for peremptory hearing on September 26, 1983 and on that date defendants having not appeared the suit was decreed ex-parte.
5. The defendants seeking Setting aside of the ex-parte decree filed an application under Order IX. Rule 13 CPC and thereupon Miscellaneous Case No.214 of 1983 was registered. The case of the petitioners in the Miscellaneous Case i.e. defendants in Title Suit no.849 of 1979, was that defendant No.4 was the Tadbirker and he having had fallen ill on the date of peremptory hearing he could not take steps in the suit on September 26. 1983 and as such the suit was decreed ex-parte, that after the re-opening of the civil Court on 1st of November. 1983 the defendant No.4 went to the Court to ascertain the position of the Title Suit No.849 of 1979 and then P.W.4, the clerk of the defendants’ Advocate, informed him that the suit had already been decreed on September 26. 1984 ex-parte. Having had the information from the P.W.4 the petitioners i.e. the defendants filed the Miscellaneous Case on November 6. 1983. It may be mentioned there are 12 defendants in the suit and the Miscellaneous Case has been filed by the said defendants, it was the case of the defendants that defendant No.4 was their Tadbirker and he having had fallen ill the suit was decreed ex-parte.
6. The Miscellaneous Case was opposed by the plaintiffs i.e. opposite parties in the miscellaneous Case contending, inter alia; that the Miscellaneous Case was barred by limitation and that defendants were aware of the date of peremptory hearing of the suit and that they intentionally allowed the suit to be decreed ex-parte for the purpose of depriving the plaintiffs from the fruit of the suit, it was also the case of the opposite parties that the defendants filed certain documents before the Court which were forged and fabricated and that apprehending that in case of prosecuting the suit or in other words opposing the claim of the plaintiffs placing reliance on the said documents there is likelihood of being prosecuted under the Penal law for using forged and fabricated document before the Court claiming those to be genuine inspite of knowing the same not genuine they allowed the suit decreed ex-parte. It was also the contention of the plaintiff-opposite parties that by the ex-parte decree defendants had not suffered any loss or injury.
7. The trial Court on consideration of the evidence of P.Ws.1-3 arrived at the finding that
the defendant-petitioners were fully aware of the date of peremptory hearing of the suit and thereupon dismissed the Miscellaneous case.
8. It was the case of the defendant-petitioners that their Tadbirker, defendant No.4. who was petitioner No.4 in the miscellaneous case, was ill and as such step could not be taken and consequent thereupon suit was decreed cx-parte. It may be mentioned defendant No.4
who was petitioner No.4 in the Miscellaneous Case has not deposed in the miscellaneous
case. The trial Court observed that in support of the defendants’ case that the defendant No.4 was the Tadbirker and he was ill on the date of peremptory date of hearing no medical certificate was produced and the neighbouring and independent witness was also not examined. The trial court also observed while dismissing the Miscellaneous Case that there were other defendants who could have taken steps in the suit while their Tadbirker was ill but they did not do so and there is no explanation as regard that. The trial Court also observed that the case was Barred by limitation and no substantial cause was shown in the petition for condonation of delay. The trial Court dismissed the Miscellaneous Case on the finding that the defendant petitioners failed to establish that their Tadbirker defendant No.4, who was petitionder No.4 in the Miscellaneous Case, was ill on the date of peremptory hearing of the suit and that the Miscellaneous Case was also haired by limitation and that no substantial cause was shown for’condo nation of delay.
9. The defendants went on appeal. The appellate Court reversed the judgment and order of the trial Court on the finding that P.YVs.J. 2 and 3 have deposed that defendants’ Tadbirker defendant No.4 i. e. Pet jioner No.4 in the Miscellaneous Case, was ill and as against that the lone witness examined by the opposite parties in the Miscellaneous case could not prove that the defendant No.4 was not ill and that the defendants allowed the suit to be decreed ex-parte ‘wilfully’. The appellate Court in setting aside the order of the trial Court has observed “that the petitioners were J diligently pursuing the suit and there is no laches on their part before the exparte decree. Had petitioner No.4 been not attacked with fever at the relevant time than definitely he would take steps when the suit was called for hearing”. On the question of limitation the appellate Court has observed that petitioner No.4 (defendant No.4) came to know about the ex-parte decree on November 1. 1983 from P.W.4 Salamat Molla. registered clerk of he defendants’ learned lawyer, and thereupon filed the suit on 6.11.1983 and there is no reason to disbelieve the P.W.4 and thus it appears that petitioners were not aware of the ex-parte y. decree ’till 1.11.83 and as such the application is not barred by limitation”. As stated hereinbefore the Petitioner No.4 who said to have been the Tadbirker of the defendants has not deposed in the case. This being the position the appellate Court was in serious error in arriving at a finding placing reliance on the evidence of P.W.4. the clerk of the learned Advocate of the defendants, that the Miscellaneous case was not barred by limitation. The petitioner No.4 i. e. defendant No.4. the tadbirkar of the defendants was competet to depose about initial knowledge about ex-parte decree on 1-11-1983 and then had he been corroborated by P.W.4. then there could have been the finding as made by the appellate Court, the Miscellaneous case was not barred by limitation. It may also be mentioned that the appellate Court set aside the order of the trial Court upon surmise and conjecture that had the Tadbirker defendant No.4 been not ill the suit was not decreed ex-parte since defendants were contesting suit by filing written statement in that the defendant No.4 inspite of being petitioner No.’4 in the Miscellaneous Case did not depose in the Miscellaneous Case that he was ill on the date of peremptory hearing and no explanation was offered for not examining him. As seen from the judgment of the trial Court that no medical certificate was produced in support of the defendants’ contention that their Tadbirker defendant No.4 was ill on the date the suit was decreed ex-parte and that no neighbouring witness was examined to establish the fact that defendant no.4 was ill on the date the suit was decreed ex-parte. P.W.s.1-3 as it appears are the petitioners in the Miscellaneous Case and as such they are interested witness and the trial Court discarded their evidence on assigning reason. It may also be mentioned that the appellate Court set aside the judgment of the trial Court placing onus wrongly on the 0.P.W.1 that he could hot prove that defendant No.4 was not ill on the date the suit was decreed ex-parte. Had defendants established their case that their Tadbirker was ill on the date the suit was decreed ex-parte by examining independent witness and that particularly examining defendant No.4 who as claimed to have been the Tadbirker. in that case only onus would have been on the plaintiff opposite parties to disprove the case of the defendants, but defendant petitioners having had not established their case by independent witness that defendant No.4 was ill on the date the suit was decreed ex-parte there was no onus on the plaintiff opposite parties to establish that the defendant No.4 was not ill. 10. As against the judgment of the appellate Court the plaintiff opposite parties (in the Miscellaneous Case) moved the High Court Division in revisiona! jurisdiction. The High Court Division made the Rule absolute on the findings that the Miscellaneous Case was barred by limitation and that no sufficient explanation was offered in support of condonation of delay. It may be mentioned the ex-parte decree was passed on September 26. 1983 and the Miscellaneous Case was filed on November 6. 1983. Since the summons were duly served on the defendants as per provision of Limitation Act they were required to file the Miscellaneous Case within 30 days from the date of ex-parte decree and that as the civil Court was on vacation in the month of October when period of limitation ex-pired they were required to file the Misellaneous Case on the re-opening of the civil Court i. e. on 1st of November, 1983 but the Miscellaneous Case was filed on November 6, 1983. To establish that the Miscellaneous Case was not barred by limitation the defendant-petitioners examined P.W.4. clerk of the defendants’ learned Advocate, who deposed that on 1st of November, 1983 when defendant No.4 (petitioner No.4 in the Miscellaneous Case) went to the Court and tried 10 ascertain the position of the suit he then on f. 11.1983 .
11. Leave was granted to consider the contentions that the learned District Judge having
believed the P.ws. and the medical certificate in support of the illness of the defendant No.4 the High Court Division was in error in reassessing the evidence while sitting in revisional jurisdiction and that because of the judgment of the High Court Division the
appellants were non-suited although they were contesting the suit diligently and without
any laches as found by the lower appellate Court.
12. The learned Advocate-on-record for the appellants has reiterated the contentions making which leave was obtained by the appellants. As against the contention of the appellants the learned Advocate-on-record for the Respondents submitted that no medical certificate was produced by the appellants in support of their case that their tadbirker defendant No.4 was ill on the date of peremptory hearing of the suit and that neighbours were also not examined to establish that the defendant No.4 was ill and that on the top of everything defendant No.4 who was petitioner No.4 in the Miscellaneous Case did not depose in the case supporting the case of the defendants that he was the tadbirker of the defendants and was ill on the date the suit was decreed ex-parte. The learned Advoate-on-reord also submitted that there was no explanation why the defendant No.4,’ who was petitioner No.4 in the Miscellaneous Case, did not depose supporting defendants’ case that he was ill on the date the suit was decreed ex-parte.it has also been submitted on behalf of the Respondents that the appellate Court set aside the judgment of the trial Court upon surmise and conjecture in that even if, as observed by the appellate Court, the defendants were diligent in prosecuting their case, but the case pleaded seeking setting aside of the ex-parte decree was not established by examining independent witness and that also by not producing medial certificate in support of the illness of the defendant No.4, the tadbirker of the defendants and that in not examining the neighbours of the defendant No.4 to establish that on the date of peremptory hearing defendant No.4 was ill, even if defendants were diligent, which is nothing but surmise and conjecture by the appellate Court, in prosecuting the suit that could not have been the ground for setting aside the ex-parte decree, as the appellate . Court did, when defendants failed to offer sufficient explanation for not being present in Court on the date of peremptory hearing or in other words defendants having had failed to prove the case as pleaded seeking setting aside of the ex-parte decree. It has also been submitted by the learned Advocate-on-record for the Respondents that the Miscellaneous Case was hopelessly barred by limitation since the same was filed beyond 30 days from the date of decree or at the latest having had not been filed on the 1st of November, 1983 i.e. on the re-opening of the Court after vacation. He continued that although defendants tried to establish that the Miscellaneous Case was not barred by limitation by examining P.W.4, the clerk of the defendants’ learned Advocate, but his evidence was of no use for X the defendants since the person to whom, i.e. defendant No.4, he disclosed on 1.11.1983 about the fact of disposal of the suit by ex-parte decree did not depose in the case and thus the initial knowledge about the ex-parte decree remained unestablished and conse-Appellate Divisioh Cases quent thereupon the Miscellaneous Case filed (Civil) on 6.11.1983 was certainly barred by limitation, since defendants were required to file the present suit on 1st of November, 1983 as period Syed J.R. Mudassir Abdul Jabbar limitation*vas intervened by civil Court vacation and the civil Court re-opened on 1st of Husain, CJ. Appellant November, 1983.
Source: III ADC (2006) 702