X & another Versus Al-Baraka Bank Bangladesh Limited and another

DISTRICT : DHAKA

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

CIVIL REVISION NO. _______OF____________

X

& another

PETITIONERS

Versus

Al-Baraka Bank Bangladesh Limited and another

OPPOSITE-PARTIES

AFFIDAVIT IN OPPOSITION ON BEHALF OF THE OPPOSITE-PARTY NO.1

I Md. son of an officer of the opposite-party No.1 Al-Baraka Bank Bangladesh Limited, V.I.P. Road Brach, Kashfia Plaza, 35/C, Naya Paltan, P.S. Motijheel, Dhaka, by faith ______________, by nationality Bangladeshi by birth, by profession Service-holder, aged about ____ years, do hereby solemnly affirm and say as follows :

1. That I am an officer of the opposite-party No.1 and tadbirkar of this case and conversant with the facts and circumstances of the case and competent to swear this affidavit.

2. That this application under section 115 of the Code of Civil Procedure is liable to be rejected as it has been filed on misleading and misconstrued facts and without any legal ground. The facts of the case in respect of suit is in short as under :-

a) That the opposite-party No.1, Al-Baraka Bank Bangladesh Limited instituted a suit being Title Suit No.76 of 1991 in the Court of Sub-Judge & Commercial Judge, third Court, Dhaka against the opposite-party No.2, Shafi Mohammad, proprietor of M/S Enterprise, 190 Bangabandhu Avenue, P.S. Motijheel, Dhaka and two others for realisation of money by sale of mortgaged property and the suit is lying pending there for disposal.

b) That the opposite-party No.1 in collusion with the process server served the summons of oppsite party No.2 to 40 South Badda, Gulshan, Dhaka instead of actual address. The process server by practising fraud managed to obtain the signature of one Tazul Islam, the husband of the petitioner No.1 and father of the petitioner No.2.

c) That a Miscellaneous case being Misc. Case No.220 of 1991 has been filed by the petitioners praying proper action under section 476 of the Code of Criminal Procedure against the persons concerned responsible for the above fraud practice. The Misc. Case is lying pending for tjhe disposal before the Sub-Judge & Artha Rin Adalat, third Court at Dhaka.

d) That a petition has been filed on 28.11.1991 by the petitioners under Rule 5(1) of Order IX of the Code of Civil Procedure praying for the dismissal of the said Title Suit No.76 of 1991, which was heard on 22.01.1992. Upon hearing both the parties the learned Court rejected the petition.

e) That being aggrived by and dissatisfied with the order of the learned Court the petitioners filed this application in revision.

4. That I have gone through the application and have understood the contents therein. I have been advised by my lawyer to controvert those statements which are necessary for disposal of this application and those statements which I do not hereinafter specifically admit shall be deemed to have been denied .

5. That the statements made in paragraph 1 of the petition in revision are matters of records.

6. That the statements made in paragraph 2 of the petition are misleading and not correct, hence denied by this Opposite-Party. The summons of Opposite-Party No.2 was duly served by the process server to his actual address, hence no question of collusion between the process server and this opposite-party in service of summons to a faulse address of the opposite-party No.2 can be arisen at all.

7. That the statements made in paragraph 3 of the petition are matters of record, hence no comment is necessary.

8. That the statements made in paragraph 4 of the petition are matters of record. It is true that the Court below rejected the petition under Rule 5(1) of Order IX of the C.P.C., filed by the petitioner of this revisional petition praying for dismissal of Title Suit No.76 of 1991 pending before Sub-Judge & Artha Rin Adalat No.3 at Dhaka. The Court below committed no error of law in rejecting the said petition. There is no provision under Rule 5(1) of Order IX of the C.P.C. for dismissing a suit where summons has been served. The provision for dismissal of a suit under the said Rule is applicable only when after a summons has been issued to the defendant and returned unserved, the plaintiff failes to apply for the issue of a fresh summons for a period of three months from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers. But in the instant case the summons of the defendant was not returned unserved by the serving officer. This petition in revision is liable to be set aside.

9. That under the above circumstance your Lordships may be pleased to discharge the rule and/or pass such further order or orders as the court may deem fit and proper.

10. That the statements of facts made above are true to the best of my knowledge and belief and rests are submissions before this Hon’ble Court.