Appellate Division Cases
(Civil)
PARTIES
The Chairman, Rajdhani Unnayan Katripakkha (RAJUK)…………. Petitioner.
-Vs-
Momtaz Hasan Chowdhury & others…………… Respondents.
JUSTICES
Syed J.R. Mudassir Husain C.J
M.M. Ruhul Amin J
Amirul Kabir Chowdhurv J
Judgment Dated: 29th June 2006
The Code of Civil Procedure, Order 9. Rule 13, Section 151
The Limitation Act. Section 5, Article 164
Challenging the order of RAJUK dated 24.08.1998 cancelling the lease of Plot
Nos.20 and 20-A in Gulshan North Commercial Area. Dhaka earlier granted in favour of their predecessor late Md. Chowdhury. After the death of their predecessor, the plaintiff-respondents as his legal heirs instituted the above suit…………. (2)
The High Court Division found that against the expartc decree dated 27.08.1991, passed in Title Suit No.347 of 1982, Miscellaneous Case No.40 of 1997 under Order 9 Rule 13 of the Code of Civil Procedure was filed about 6 years after passing the ex-parte decree in question and no application under section 5 of the Limitation Act was filed for condonation of delay. The High Court Division held that under Article 164 of the Limitation Act, such an application under section order 9 Rule 13 of the Code of Civil Procedure is to be filed within 30 days from the date of ex-parte judgment and decree. The High Court Division further held that even from the date knowledge of ex-parte decree in question of the learned Advocate for the Rajuk, the Miscellaneous Case No.40 of 1997 was filed after a lapse of eleven months without any application for condonation of delay and as such miscellaneous case was hopelessly barred by limitation. The High Court Division further held that when there is specific provision in the C.P. Code for relief no discretion under section 151 of the (ode of Civil Procedure can be exercised ………………………(4)
The leave petition is dismissed ……………….(6)
A.K.Kl. Nazrul Islam. Senior Advocate, instructed by A.K.M. S/nthidul lluq, Advocate-c-‘i-Rccord i’or the…………………………. Petitioner
Khondker Mahbubuddin Ahmed, Senior Advocate (with A. Ilasib, Senior Advocate), instructed bv Mvi. Waiudullah, Advocate-on Record……………………. For Respondent No. 1-7 Rajique-Ul-Huq. Senior Advocate instructed by Md. Nawab AH, Advocateon-Record Added…………………………. Respondent Civil Petition For Leave To Appeal No.l 11 of 2006 (From the judgment and order dated 06.12.2005 passed by the High Court Division in Civil Revision No.2221 of 2005.)
JUDGMENT
M. M. Ruhul Amin J: This petition for leave to appeal is directed against the judgment and order dated 06.12.2005 passed by a Division Bench of the High Court Division in Civil Revision No.2221 of 2005 making the rule absolute.
2. Short facts are that the plaintiffs instituted Title Suit No.347 of 1982 in the 3rd Court of Subordinate Judge (now Joint District Judge), Dhaka against the then Dhaka Improvement Trust now Rajdhani Unnayna Kartipakha challenging the order of RAJUK dated 24.08.1998 cancelling the lease of Plot Nos.20 and 20-A in Gulshan North Commercial Area, Dhaka earlier granted in favour of their predecessor late Md. Chowdhury. After the death of their predecessor, the plaintiff-respondents as his legal heirs instituted the above suit. The Dhaka Improvement Trust (now RAJUK) appeared in the suit and filed written statement but did not appear at the time of hearing and as a result the suit was decreed expartc by judgment and decree dated 27.08.1991. Rajuk then filed Miscellaneous Case No.40 of 1997 under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the exparte judgment and decree dated 27.08.1991 and for restoration of the suit to its original file and number. The plaintiffs contested the case by filing written objection. The learned Subordinate Judge(now joint District Judge) allowed the Miscellaneous Case on contest and set aside the ex-partc judgment decree dated 27.08.1991. Being aggrieved, the appellant filed First Miscellaneous Appeal No.236 of 1999 before the High Court Division and the High Court Division allowed the appeal by judgment dated 15.11.2000. The defendant then moved the Appellate Division and the Appellate Division sent back the matter on remand to the High Court Division for re-hearing the matter after converting the miscellaneous appeal into revisional application. Accordingly the Miscellaneous Appeal was converted to Civil Revision No.2221 of 2005 and heard disposed of by the impugned judgment.
3. We have heard Mr. A.K.M. Nazrul Islam, the learned Counsel for the petitioner and Mr. Khondkcr Mahbubuddin Ahmed with Mr. Rafiquc-Ul Huq. the learned Counsels for the respondents and perused the judgment of the High Court Division and other connected papers.
4. The High Court Division found that against the exparte decree dated 27.08.1991, passed in Title Suit No.347 of 1982, Miscellaneous Case No.40 of 1997 under Order 9 Rule 13 of the Code of Civil Procedure was filed about 6 years after passing the ex-parte decree in question and no application under section 5 of the Limitation Act was filed for condonation of delay. The High Court Division held that under Article 164 of the Limitation Act, such an application under section order 9 Rule 13 of the Code of Civil Procedure is to be filed within 30 days from the date of ex-parte judgment and decree. The High Court Division further held that even from the date knowledge of ex-parte decree in question of the learned Advocate for the Rajuk, the Miscellaneous Case No.40 of 1997 was filed after a lapse of eleven months without any application for condonation of delay and as such miscellaneous case was hopelessly barred by limitation. The High Court Division further held that when there is’specific provision in the C.P. Code for relief no discretion under section 151 of the Code of Civil Procedure can be exercised.
5. In the circumstances, 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 no cogent reason to interfere with the same.
6. The leave petition is dismissed.
Source : V ADC (2008) 335