Mst. Renu Khatun and another Vs. Md. Enayet Hossain Mondal

Appellate Division Cases

(Civil)

PARTIES

Mst. Renu Khatun and another ……………..Petitioners

-Vs-

Md. Enayet Hossain Mondal and others…………….. Respondents

JUSTICES

Md. Ruhul Amin J

Md. Tafazzul Islam J

Judgment Dated: 9th July 2006

The Limitation Act, 1908, Section 5 The Code of Civil Procedure, Order 9, Rule 13

Seeking condonation of delay of 763 days in filing the civil revisional application

against the order dated June 28, 1999 of the Court of Assistant Judge …………..(1)

On detailed discussions of the facts stated in support of the prayer for condonation of delay held that delay of the said long period was not satisfactorily explained. The High Court Division further held that though attempt has been made to explain the delay of the period occurred between 10.12.2000 and 4.11.2001 but in support of the explanation offered no material was brought on record i.e. the ‘tadbirkar’ of the petitioners was in custody and thus the petitioners having had failed to explain the period of delay the High Court Division discharged the Rule……………….. (1)

Prayer of the petitioners seeking condonation of delay of inordinate period. ………..(2)

Md. Nawab AH, Advocate-on-record …………..For the Petitioners

A.K.M. Shahidul Huq, Advocate-onrecord ……………..For Respondent No.l

Respondent Nos.2-62………………. Not represented

Civil Petition For Leave To Appeal No.852 of 2005

(From the Judgment and Order dated February 1, 2005 passed by the High Court

Division in Civil Rule No.560 (Con) of 2001)

JUDGMENT

Md Ruhul Amin J : This petition for leave to appeal has been filed against the order dated February 1, 2005 of a Single Bench of the High Court Division in Civil Rule No.560(con) of 2001 discharging the Rule obtained upon an application filed under section 5 of the Limitation Act, 1908 seeking condonation of delay of 763 days in filing the civil revisional application against the order dated June 28, 1999 of the Court of Assistant Judge, Sirajganj in Miscellaneous Case No. 11 of 1999 dismissing the same. The Miscellaneous case was filed under Order 9, Rule 13 of the Code of Civil Procedure seeking setting aside of the ex-parte order dated February 22, 1998 allowing the prayer for preemption. The pre-emptee as against the order of the Court of Assistant Judge rejecting the Miscellaneous Case registered under Order 9, Rule 13 of the Code of Civil

Procedure filed appeal before the Court of District Judge, Sirajganj and thereupon

Miscellaneous Appeal No.38 of 1999 was registered. The learned District Judge ismissed

the said appeal by the order dated 24.9.2000 and thereupon petitioner preferred revisional application before the High Court Division but the same was returned to the learned Advocate for the petitioner on 10.12.2000 since the appeal was incompetent and that the pre-emptee petitioner was required to file revision against the order of the Court of Assistant Judge rejecting the Miscellaneous case registered under Order 9, Rule 13 of the

Code of Civil Procedure as the same was registered in connection with an order allowing pre-emption and that as against the order allowing or rejecting the preemption only one appeal lies. Thereafter the pre-emptee filed revisional application against the order dated 28.6.1999 dismissing the Miscellaneous Case registered upon an application under Order 9, Rule 13 of the Code of Civil Procedure. As stated hereinbefore the said Miscellaneous Case i.e. Miscellaneous Case No. 11 of 1999 was filed for setting aside the exparte

order granting pre-emption. The revisional application so filed was out of time by 763 days. The petitioner prayed for condonation of delay of the said period of limitation by filing an application under Section 5 of the Limitation Act and thereupon the aforementioned Rule was issued. The High Court Division on detailed discussions of the facts stated in support of the prayer for condonation of delay held that delay of the said long period was not satisfactorily explained. The High Court Division further held that

though attempt has been made to explain the delay of the period occurred between 10.12.2000 and 4.11.2001 but in support of the explanation offered no material was

brought on record i.e. the ‘tadbirkar’ of the petitioners was in custody and thus the

petitioners having had failed to explain the period of delay the High Court Division

discharged the Rule.

2. We have heard the learned Advocateon-record for the petitioners and perused the materials on record. On going through the judgment of the High Court Division we find that the said Division upon assigning cogent reason has rejected the prayer of the petitioners seeking condonation of delay of inordinate period.

3. The learned Advocate-on-record failed to point out any error in the judgment of the High Court Division calling for interference by this Division.

4. Accordingly the petition is dismissed.

Source : V ADC (2008),651

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