Appellate Division Cases
Shamsul Huq Sarker …………………………………………………Appellant
Enamul Huq Sarker and ors ……………………………………….Respondent
Syed J. R Mudassir Husain C J
M. M. Ruhul Amin J
Amirul Kabir Chowdhury J
Date of Judgment
8t h March 2006
The Code the Civil Procedure (V of 1908), Rule 16 Order 41.
Provision of law it appears that in view of default of the appellant to appear on the adjourned date for hearing he is not entitled to any relief sought for under the provision of Rule 16 of Order 41 of the Code (10)
The appellant not appearing on the adjourned date when the appeal was called for hearing the learned District Judge rightly dismissed the appeal for default and as we have already seen the High Court Division in consideration of the facts and circumstances discharged the rule (12)
Shamsul Huq Sarker, (in person) For the Appellant..Not represented Respondents Civil Appeal No. 131 of 2001
1. Amirul Kabir Chowdhury J:- This appeal by leave arises out of the judgment and order dated 31.07.2000 passed by the High Court Division in Civil Revision No. 664 of 1994 discharging the rule.
2. The appellant challenging enrolment of the property of Taltali Jame Mosque Waqf Estate and appointment of its Motually unsuccessfully filed Miscellaneous E. C. Case No.9 of 1984 before the Administrator of Waqf Government of Bangladesh whereupon he preferred Title .Appeal No. 3 of 1988 before the learned Di-uict Judge, Chandpur. The
appeal was fixed for hearing on 4.11.1991 on which date the appellant was found absent when the appeal was called on for hearing. The learned District Judge then asked the appellant to show cause as to why the appeal should not be dismissed for default fixing 18.11.1991 as the next dale. On 18.11.1991 also the appellant did not appear and as such the appeal was dismissed for default.
3. The appellant being aggrieved moved the High Court Division in Civil Revision No. 664 of 1994 against the aforesaid order of the learned District Judge. A Single Bench of the High Court Division after hearing the appellant discharged the rule by the impugned Judgment and order.
Hence is this appeal.
4. Leave was granted to consider the submissions that the learned District Judgecommitted ‘an error of law of order 41 Rule 16 of the Code the Civil Procedure’ in dismissing the appeal for default on 18.11. T991, the date not fixed for hearing of the appeal and as such the High Court Division committed an error in discharging the rule.
5. In support of the appeal the appellant reiterated the submissions made at the time of granting the leave.
6. Pie further submits that the appellant being seriously ill during the period in question was prevented from appearing at the time when the appeal was called upon for hearing and the High Court Division committed error in not considering this aspect of the case.
7. We have considered the submissions and perused the materials on record. It appears that the appeal was fixed for hearing on 04.11.1991 on which date the appellant was absent. The appellant being found absent the learned District Judge adjourned the hearing fixing 18.11.1991 asking the appellant to show cause as to why the appeal should not be dismissed for default and on the aforesaid adjourned date 18.11991 also the appellant did not appear and hence the learned District Judge dismissed the appeal for default. The appellant without filing any application under order 41 Rule 19 of “the Code of Civil Procedure seeking readmission of the appeal dismissed for default moved straight the High Court Division and contended that due to his illness he was unable to attend the court on the date fixed for hearing
8. In support of the aforesaid contention he produced a certificate to the effect that he was under the treatment of a medical assistant from 03.02.1992 upto 23.02.1993 but the order of dismissal of the appeal was passed on 18.11.1991 and as such the explanation given by the appellant was found bv the High Court Division to be devoid of substance and in view of such facts and circumstance the rule was discharged.
9. To appreciate the submissions let us examine the provisions of Order 41 Rule 16 of the Code of Civil Procedure which runs as follows. ” 16.-U) On the day fixed, or on A any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal. (2) The Court shall then, if it does not dismiss the appeal at once, hear the
respondent against the appeal, and in such case the appellant shall be entitled to reply.”
10. On perusal of the aforesaid provision of law it appears that in view of default of the appellant to appear on the adjourned -JL date for hearing he is not entitled to any relief sought for under the provision of Rule 16 ofOrder4l of the Code. 11. Rather the provision of Rule 17(1) of Order, 41 is attracted which is as folor on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called for hearing, the Court may make an order that the appeal be dismissed.
12.The appellant not appearing on the adjourned date when the appeal was called for hearing the learned District Judge rightly dismissed the appeal for default and as we have already seen the High Court Division in consideration of the facts and circumstances discharged the rule.
13. In view of the discussion made above, we are of the opinion that the High Court Division decided the case correctly and no interference is called for. In the premises we do not find any substance in this appeal. The appeal is, therefore, dismissed.
Source: III ADC(2006) 455