Mrs. Rawshan Ara Begum Vs. Mst. Sufia Begum

Appellate Division Cases

(Civil)

PARTIES

Mrs. Rawshan Ara Begum……………….. Petitioner.

-Vs-

Mst. Sufia Begum……………….. Respondent.

JUSTICES

Mohammad Fazlul Karim J

Md. Joynul Abedin J

Judgment Dated: 16th May 2007

Dismissing the suit and sending the suit back on remand to the appellate court below for expeditious disposal of the suit after obtaining the report of DNA test of the plaintiff and the disputed child from the concerned Department of the Dhaka Medical College ……………………Hospital. (1)

Praying for declaration that the child as described in the schedule to the plaint was born of the plaintiff and for a . mandatory injunction directing the defendant-petitioner to handover the child to the custody of the plaintiff-respondent ……………(2)

We are not impressed by the submissions of Mr. Kazi Shahadat Hossain. In the facts and circumstances of the case, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is, therefore, no warrant in law to interfere with the same. …………………(7)

Kazi Shahadat Hossain, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record………………………. For the Petitioner Abu Siddique, Advocate-on-Record. ………………..For the Respondent Civil Petition For Leave To Appeal No. 1159 of 2005 (From the judgment and order dated 13.7.2005 passed by the High Court Division in Civil Revision No.345 of 2004.)

JUDGMENT

Md. Joynul Abedin J: This petition for leave to appeal has arisen out of the judgment and order dated 13.7.2005 passed by a Single Bench of the High Court Division in Civil Revision No.345 of 2004 making the rule absolute and reversing the judgment and decree dated 7.10.2003 passed by the Joint District Judge, 2nd Court, Habigonj in Title Appeal No. 138 of 2000 allowing the appeal setting aside those dated 3.8.2000 passed by the Assistant Judge, Habigonj in Title Suit No.69 of 2000 dismissing the suit and sending the suit back on remand to the appellate court below for expeditious disposal of the suit after obtaining the report of DNA test of the plaintiff and the disputed child from the concerned Department of the Dhaka Medical College Hospital.

2. The plaintiff-respondent, Mst. Sufia Begum, instituted Title Suit No.69 of 2000 in the Court of the Assistant Judge, Habigonj against the defendant-petitioner, Mst. Rowshan Ara Begum, praying for declaration that the child as described in the schedule to the plaint was born of the plaintiff and for a mandatory injunction directing the defendant-petitioner to handover the child to the custody of the plain-tiff-respondent.

3. The fact briefly stated is that both the plaintiff and defendant claimed that the disputed child was born of them and they are the mothers of the disputed child. The trial Court on consideration of the evidence on record concluded that the plaintiff could not prove her case that she gave birth to the disputed child. Accordingly the trial Court by judgment and decree dated 30.8.2000 dismissed the suit.

4. The plaintiff then preferred Title Appeal No. 138 of 2000 before the learned District Judge, Habigonj. The appellate Court below by its judgment and order dated 7.10.2003 sent the suit back on remand to the trial Court for disposal by obtaining a medical report on the defendant as to whether she was a barren woman.

5. The defendant-petitioner then moved the High Court Division in revision and the High Court Division thereupon passed the impugned judgment and order sending the suit back on remand to the appellate Court below for expeditious disposal of the suit within 6(six) months from the date of receipt of the record by obtaining the report of DNA test of the plaintiff and the disputed child from the concerned Department of the Dhaka Medical College Hospital.

6. Mr. Kazi Shahadat Hossain, learned Senior Counsel for the petitioner submits that the learned Judge of the High Court Division has erred in passing the impugned judgment and order for disposal of the suit by sending the same to the appellate Court below on remand by obtaining the report of DNA test of the plaintiff and the disputed child when the suit could be well-disposed of on the basis of the evidence on record adduced by both the parties and as such there has been a miscarriage of justice.

7. We are not impressed by the submissions of Mr. Kazi Shahadat Hossain. In the facts and circumstances of the case, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is, therefore, no warrant in law to interfere with the same.

8. The petition is accordingly dismissed.

Source : V ADC (2008) 407