Mvi. Md. Shafiqur Rahman Vs. Ambia Khatoon and others

Appellate Division Cases

(Civil)

PARTIES

Mvi. Md. Shafiqur Rahman and another……………. Petitioners

-VS-

Ambia Khatoon and others…………………. Respondents.

Md. Ruhul Amin CJ

M.M. Ruhul Amin J

Md. Tafazzul Islam J

Md. Hissan Ameen J

JUDGMENT DATED: 26TH April 2007

State Acquisition and Tenancy Act, 1950,Section 96

The said Act, 1950, Section 96(13)

Miscellaneous Case No. 5 of 1998 (Preemption) under section 96 of State Acquisition and Tenancy Act 1950 praying for pre-emption of the case land on the averments that he having purchased .19 acres of land became cosharer by purchase………………(2)

As it appears the High Court Division discharged the Rule holding that in the case of Kazi Mohammad Joyan Ali and another vs. Raja Pramanik and ors. reported in 53 C.W.N. (I DLR 61), Kafiluddin Chowdhury vs. Dr. Abdus Sattar, 20 DLR 1220, A. Jafar Vs. A. Hamid, 29 DLR 306 and Belayet Hossain and another vs. Md. Abu Taher and others, 32 DLR (AD) 231, against exparte order allowing miscellaneous case for pre-emption, applications under Order 9 Rule 13 CPC were filed and those being rejected appeals were filed on the grounds that applications under Order 9 Rule 13 CPC could be filed against exparte order allowing pre-emption and that it is only against order of refusal to restore the exparte order on appeal was aintainable under Order 43 rule l(d) CPC and in those cases the Court took the view that the proceeding under Order 9 Rule 13 CPC was available against exparte order allowing pre-emption. The High Court Division, relying on the above decisions, held that in the instant case Order 9 Rule 9 CPC is available to the pre-emptor to set aside the order for dismissal for default and section 96(13) would not be a bar in such proceeding. …………………(4)

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

Respondents………………………….. Not represented.

Civil Petition for Leave to Appeal No. 285 of 2004

(From the judgment and order dated 10.1.2004 passed by the High Court Division in Civil Revision No. 1436 of 2002).

JUDGMENT

Md. Tafazzul Islam J: This petition for leave to appeal is directed against the judgment and order of the High Court Division dated 10.1.2004 passed in Civil Revision No. 1436 of 2002 discharging the Rule obtained against the order dated 30.1.2002 passed by the learned Joint District Judge, 2nd Court, Noakhali in Miscellaneous Case No. 39 of 2001 restoring Miscellaneous Case No. 5 of 1998 (Preemption) upon an application filed

under Order 9 Rule 9 CPC.

2. Brief facts are that late Munshi Aminullah, the predecessor of the respondent Nos. 1-7, filed the above Miscellaneous Case No. 5 of 1998 (Preemption) under section 96 of State

Acquisition and Tenancy Act 1950 praying for pre-emption of the case land on the

averments that he having purchased .19 acres of land became co-sharer by purchase;

me residence of the pre-emptees is situated far off from the case land; the pre-emptor is a cultivator having only 10 bighas of land; The Respondent No. 8, A co-sharer by purchase, sold .71 acres of land to the pre-emptee petitioners on 12.1.97 and he only on 16.2.1998 came to know about the same and he then on 24.2.98 obtained the certified copy of the kabala dated 12.1.97 and filed the miscellaneous case on 4.3.1998. The pre-emptee petitioners by filing written objection opposed the above miscellaneous case.

The miscellaneous case was then fixed on 2.8.2001 for peremptory hearing and on

that date the pre-emptor respondent prayed for adjournment but the learned Subordinate Judge (now Joint Disrtict Judge) rejecting the said prayer directed the parties to get ready for hearing and then the above case was taken up for hearing and the learned Advocate of the preemptor-respondent having not been found on pall, the learned Subordinate Judge

(now Joint District Judge) dismissed the Miscellaneous Case No. 05 of 1998 for default. Then on 23.8.2001 the pre-emptor filed Miscellaneous Case No. 39 of 2001 praying for restoration of the above Miscellaneous Case No. 05 of 1998 and the learned Subordinate Judge (now Joint District Judge) after hearing and on examining witnesses by judgment and order dated 30.1.2001 upon setting a side the order dated 2.8.2001 restored the above

Miscellaneous Case No. 05 of 1998 to its original file and number. The pre-emptee

petitioners then moved the High Court Division and obtained Rule and the High Court Division, after hearing, discharged the Rule.

3. The learned Advocate-on-Record for the pre-emptee petitioners submitted that the High Court Division was wrong in discharging the Rule without considering that

State Acquisition and Tenancy Act, 1950 provides its own procedure in respect of

appeal and revision independent of the provisions laid down in the Code of Civil

Procedure and the impugned dated 30.1.2002. in terms of the provision of section 96(13) of the said Act 1950 being an appellable order, the proceeding under Order 9 Rule CPC is not at all maintainable and the High Court Division erred in law in observing that order 9 Rule 9 CPC is applicable in such proceeding.

4. As it appears the High Court Division discharged the Rule holding that in the case Of Kazi Mohammad Joyan Ali and another vs. Raja Pramanik and ors. reported in 53 C.W.N. (I DLR 61), Kafiluddin Chowdhury vs. Dr. Abdus Sattar, 20 DLR 1220, A. Jafar Vs. A. Hamid, 29 DLR 306 and Belayet Hossain and another vs. Md. Abu Taher and others, 32 DLR (AD) 231, against exparte order allowing miscellaneous case for pre-emption, applications under Order 9 Rule 13 CPC were filed and those being rejected appeals were filed on the grounds that applications under Order 9 Rule 13 CPC could be filed against exparte order allowing pre-emption and that it is only against order of refusal to restore the exparte order on appeal was maintainable under Order 43 rule l(d)

CPC and in those cases the Court took the iew that the proceeding under Order 9

Rule 13 CPC was available against exparte order allowing pre-emption. The High Court Division, relying on the above decisions, held that in the instant case Order 9 Rule 9 CPC is available to the pre-emptor to set aside the order for dismissal for default and section 96(13) would not be a bar in such proceeding.

5. We are of the view that the High Court Division on proper consideration of the materials on record arrived at a correct decision. The learned counsel could not point at any illegality or infirmity in the decision of the High Court Division so as to call for any interference.

6. The petition is dismissed.

Source : V ADC (2008), 48