Abdul Hai and others Vs. Atar Islam and others, 1 ADC (2004) 107

Case No: Civil Appeal No. 170 of 2000

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Md. Amir Hossain,,

Citation: 1 ADC (2004) 107

Case Year: 2004

Appellant: Abdul Hai and others

Respondent: Atar Islam and others

Subject: Civil Law,

Delivery Date: 2004-2-10

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin J
M. M. Ruhul Amin J
 
Abdul Hai and others
....................Appellants
Vs.
Atar Islam and others
..................Respondents
 
Judgment
February 10, 2004.
 
Code of Civil Procedure, 1908
Order 9 Rule 13
When the findings of the High Court Division are based on correct assessment of the materials on record appellate Division has nothing to interfere.
It appears that there was delay of 6 months 17 days in filing the miscellaneous case under order 9 Rule 13 of the Code of Civil Procedure and the causes of delay were not at all satisfactorily explained. Accordingly the High Court Division made the Rule absolute holding that the appellate court did not consider the matter in its proper perspective and allowed miscellaneous case without any evidence at all and on mere surmise and conjecture. … (4)
 
Lawyers Involved:
Md. Amir Hossain, Advocate-on-Record-For Respondent No. 1.
Not represented-Respondent No. 10.
 
Civil Appeal No. 170 of 2000.
(From the judgment and order dated 15.02.1999 passed by the High Court Division in Civil Revision No. 3023 of 1994.)
 
JUDGMENT
 
M. M. Ruhul Amin J.
 
This appeal by leave is directed against the judgment and order dated 15.02.1999 passed by a single Bench of the High Court Division in Civil Revision No. 3023 of 1994 making the Rule absolute and there by setting aside the judgment and order dated 16.08.1984 passed by the learned Addition district Judge, 4th Court, Comilla in Miscellaneous Appeal No. 85 of 1992 reversing the judgment and order dated 24.05.1992 passed by the learned Assistant Judge, Comilla Sadar, in Miscellaneous Case No. 35 of 1990.
 
2. Short fact are that the plaintiff-respon­dent field Title Suit No. 263 of 1986 for decla­ration of title and confirmation of possession and for permanent injunction on the assertions made in the plaint. The predecessor of the defendant petitioner filed written statement. The suit was fixed on 23.10.1989 for ex parte hearing. On that date the defendant did not appear and take any step. Accordingly the suit was decreed ex parte. The defendant filed Miscellaneous case No. 35 of 1990 under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree stating, inter alia, that he was an old man and was suffering from various ailments and he relied upon the clerk of his engaged Advocate for making tadbir in the Case. His further case was that he was not aware of the ex parte decree in question. The plaintiff opposite party filed written objec­tion in the above mentioned miscellaneous case denying the contentions of the Defendant Petitioner. The learned Assistant Judge after hearing the parties dismissed the case holding that the defendant was not prevented by suffi­cient cause from appearing when the case was called on for hearing. The defendant took an appeal to the Court of District Judge, Comilla. The appeal was allowed and the judgment and order passed by the trial court was set aside. Thereafter, the plaintiff filed Civil Revision No. 3023 of 1994 against the judgment and order passed by the appellate court and obtained a Rule. The High Court Division by judgment and order dated 15.02.1999 made the Rule absolute after setting aside the judgment and order of the appellate court on the findings that the appellate court did not controvert the find­ings of facts arrived at by the trial court and there by committed serious error in law which prejudiced the plaintiff.
 
Leave was granted to consider the submis­sions that the appellate court correctly held that 3 tax receipts alleged to have been granted by the plaintiff opposite party Respondents intend­ing to prove that the Defendant petitioner was not sick, were not proved in evidence and that the contention of the petitioners that clerk Ibrahim of the engaged advocate of the Defendant petitioner did not inform him the date of hearing of the case and the defendant was vigilant and there was no laces his party to pursue the matter in that he was a thorough present in the Court but on the date of hearing owing to his illness, could not appear before the court but the learned Single Judge of the High Court Division without adverting to the findings of the court of appeal set aside the judgment of court of appeal and ns such the judgment of the High Court Division is not a proper judgment of reversal and hence can not be maintained in law and that the High Court Division failed to notice that the trial court passed the decision on conjecture and surmise and inadmissible evidence relating to 3 tax receipts.
 
3. We have heard Mr. Md. Amir Hossain, learned Counsel for the appellants and Mr. Mahbubey Alam, the learned senior Counsel for the Respondent Nos. 1-9 and perused the connected papers.
 
It is on record that Other Class Suit No. 263 of 1986 brought by the respondent was decreed ex parte on 23.10.1989 and Miscellaneous Case No. 35 of 1990 under Order 9 Rule 13 of the Code of Civil Procedure was brought by Abdul Hamid, predecessor in interest of the petition­ers for setting aside the ex parte decree on the grounds inter alia that the engaged one Ibrahim clerk of his engaged advocate to make tadbir in the case and the clerk assured him that he was not required to go to the Court on all dates and when necessary he would inform the petition­er of the case accordingly. The clerk of the learned Advocate did not contact the petitioner for 2-3 months and accordingly the petitioner went to Comilla town and learnt that Ibrahim left the profession. The petitioner had learnt that Ibrahim left the profession. The petitioner on 05.05.1990 learnt that the suit was decreed ex parte on 23.08.1999. The further case of the petitioner was that he was sick at the rel­evant time and as such could not appear and contest the suit. It appears that the trial court disbelieved the petitioner's case altogether as the petitioner did not examine any witness in support of his illness and also in support of the case that one Ibrahim, clerk of the engaged advocate was entrusted with the whole matter and the advocate's clerk did not inform him anything regarding the case. The trial court held that three tax receipts dated 21.10.1989, 31.05.1989 and 24.11.1989 Ext. A series were filed by the plaintiff to show that at the relevant time the Defendant petitioner collected taxes by going to the villages and as such he was not sick. The trial court also held that Defendant petitioner did not adduce any evidence to prove his other contentions made in the case under Order 9 Rule 13 the Code of Civil Procedure. The trial court of appeal on the other hand, allowed the appeal holding that the tax receipts Ext. A series were not proved in evidence according to law and the party concerned should not suffer for the default of his engaged Advocate's clerk. Even if the tax receipts are left out of consideration, then also the case of the Defendant petitioner was not proved as he did not adduce any evidence in support of his case.
 
4. It appears that there was delay of 6 months 17 days in filing the miscellaneous case under order 9 Rule 13 of the Code of Civil Procedure and the causes of delay were not at all satisfactorily explained. Accordingly the High Court Division made the Rule Absolute holding that the appellate court did not consid­er the matter in its proper perspective and allowed miscellaneous case without any evi­dence at all and on mere surmise and conjec­ture.
 
5. Thus it is clear that the findings of the High Court Division that the petitioner could not prove that he was prevented by sufficient cause from appearing when the suit was taken up for hearing and decreed ex parte are based on correct assessment of the materials on record.
 
The learned Advocate for the appellant could not point out any legal infirmity in the judgment of the High Court Division.
 
The appeal is accordingly dismissed without any order as to costs.
 
Ed.