Noor Mohammad Biswas Vs. Surcndra Nath Mondal

Appellate Division Cases

(Civil)

PARTIES

1. Noor Mohammad Biswas being dead his heirs

1 .(a) Mst. Ayesha Begum and others …………….Petitioners

-Vs

1. Surcndra Nath Mondal being dead his heirs

1 (a) Amrita Mondal and others…………… Respondents

JUSTICES

Md. Ruhul Amin J

Md. Tafazzul Islam J

Judgment Dated: 7th August 2006

The Code of Civil Procedure, Order 41, Rule 21

Defendant No.9 came on the land after the institution of the suit and that finding of the trial Court that during the pendency of the suit the defendant No.9 took forcible possession of the land in suit “is true” and thereupon the High Court Division set aside the decree passed by the lower appellate Court and restored the judgment and decree of the trial Court. It appears Second Appeal was heard in the absence of the learned Advocate of the Respondent. The Second Appeal was disposed of on April 10, 1997 and the application under Order 41, Rule 21 of the Code of Civil Procedure was affirmed on December 2, 1997 and the same as it appears was moved in the early part of the year 1998 and thereupon the aforesaid Rule i.e. Civil Rule No.80(S) of 1998 was issued. When the Rule was taken up for hearing the learned Advocate for the petitioner was not present and the Rule was disposed of in presence of the learned Advocate of the opposite party Nos.l(a) and l(b)………………. (3)

Finally the High Court Division observed that the petitioner in the Civil Rule No.80(5) of 1998 was a lessee of the property in suit from year to year and that no material was placed on record that he still is a lessee, nor any statement has been made to the effect that lease is subsisting. In the background of the said fact the High Court Division held that the petitioner has no locus standi to file the application seeking rehearing of the Second Appeal. The High Court Division also noticed that defendant No.8 did not appear in the Second Appeal nor he has challenged the judgment and decree passed in the Second Appeal. In the afore state of the matter the High Court Division discharged the Rule ………….(4)

Nurul Islam Bhuiya, Advocate-on-record…………….. For the Petitioners

Ilorendra Nath Ncmdi, Advocate, instructed by Bivash Chandra Biswas, Advocate-on-record………………………… For Respondent No.l(a)

Respondent Nos.2-10 ………………………..Not represented.

Civil Petition For Leave To Appeal No.574 of 2005

(From the Judgment and Order dated November 29. 2004 passed by the High Court

Division in Civil Rule No.80(S) of 1998)

JUDGMENT

Md.Ruhul Amin J: This petition for leave to appeal is directed against the judgment dated November 29, 2004 of a Single Bench of the High Court Division in Civil Rule No.80(S) of 1998 (arising out of Second Appeal No.45 of 1979) dis” charging the Rule. The aforesaid Rule was obtained upon an application filed under Order 41, Rule 21 of the Code of Civil Procedure seeking re-hearing of the Second Appeal No.45 of 1979 which was allowed on 10.4.1997. The appeal was filed asainst the judgment and decree dated July 31. 1978 of the Court of Additional District Judge, Jcssorc in Title appeal No.31 of 1977 allowing the same and thereupon dismissing the plaintiffs suit. The appeal i.e. Appeal No.31 of 1977 was filed against the judgment and decree dated January 31,1977 of the 3rd Court of Munsif (now Assistant Judge) Jessore in Title Suit No.8 of 1977 decreeing the suit and thereupon declaring title of the plaintiff in the land in suit and confirmation of possession of the plaintiff. The trial Court further by a decree of permanent injunction restrained the defendant Nos.8 and 9 from disturbing the possession of the plaintiff in the land in suit.

2. The suit was filed with the prayer for establishment of title in the land in suit and for confirmation of possession therein.

3. The High Court Division by the judgment dated April 10, 1997 in Second Appeal No.45 of 1979 set aside the judgment and decree of the lower appellate Court with the finding that defendant No.9 came on the land after the institution of the suit and that finding; of the trial Court that during the pendency of the suit the defendant No.9 took forcible possession of the land in suit “is true” and thereupon the High Court Division set aside the decree passed by the lower appellate Court and restored the judgment and

decree of the trial Court. It appears Second Appeal was heard in the absence of the learned Advocate of the Respondent. The Second Appeal was disposed of on April

10. 1997 and the application under Order 41. Rule 21 of the Code of Civil Procedure was affirmed on December 2, 1997 and the same as it appears was moved in the early part of the year 1998 and thereupon the aforesaid Rule i.e. Civil Rule No.80(S) of 1998 was issued. When the Rule was taken up for hearing the learned Advocate for the petitioner was not present and the Rule was disposed of in presence of the learned Advocate of the opposite party Nos.l(a) and l(b).

4. The petition under Order 41, Rule 21 of the Code of Civil Procedure was filed stating

that the learned Advocate through whom the aforementioned appeal was obtained at the relevant time was elevated to the bench and that no notice under N-10 Form was served on the petitioner. The High Court Division on perusal of the Order Book of the Second Appeal noticed that learned Advocate Mr. .Abu Bakar Siddique was also engaged as the learned Advocate of the Respondent No.l in the Second Appeal but when the Second

Appeal was taken up for hearing he did not appear and in that state of the matter the High Court Division has observed that the contention of the petitioner in the Civil Rule that the appeal was heard without serving notice in N-10 Form on the Respondent not correct. The High Court Division further observed that no sufficient cause has been shown for re-hearing of the appeal after lapse of almost 8 months. The High Court Division also noticed that the matter was in the list for considerable time but none appeared on

any occasion. Finally the High Court Division observed that the petitioner in the Civil Rule No.80(5) of 1998 was a lessee of the property in suit from year to year and that no material was placed on record that he still is a lessee, nor any statement has been made to the effect that lease is subsisting. In the background of the said fact the High Court Division held that the petitioner has no locus standi to file the application seeking re-hearing of the Second Appeal. The High Court Division also noticed that defendant No.8 did not appear in the Second Appeal nor he has challenged the judgment and decree

passed in the Second Appeal. In the afore state of the matter the High Court Division discharged the Rule.

5. We have heard the learned Advocate on-record and perused the materials in the petition for leave to appeal. The learned Advocatc-on-record failed to point out any error in the findings and decisions of the High Court Division upon making which the said Division discharged the Rule.

6. We do not find any infirmity in the judgment of the High Court Division calling for interference by this Division.

7. Accordingly the petition is dismissed with cost of Tk. 10,000/-.

Source : V ADC (2008),578