Abdul Jabbar Mondal Vs. Babar Ali Malita, IV ADC (2007) 782

Case No: Civil Petition for Leave to Appeal No. 938 of 2005

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: N. K. Saha,,

Citation: IV ADC (2007) 782

Case Year: 2007

Appellant: Abdul Jabbar Mondal

Respondent: Babar Ali Malita

Subject: Procedural Law,

Delivery Date: 2006-8-31

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin J
MM Ruhul Amin J
Md. Tafazzul Islam J
 
Abdul Jabbar Mondal being dead his heirs: Md.Ohed Ali Mondal & others
………………………....Petitioners
Vs.
Babar Ali Malita being dead his heirs: Minor Mojibur Rahman & others
…………………..…... Respondents
 
Judgment
August 31, 2006.
 
That the original suit was one under section 77 of the Registration Act for registration of the disputed document which was dismissed by the trial court on the ground that there was no material on record to indicate that any appeal was filed before against the order of the Sub-Registrar. The said decision was affirmed by the appellate court on the finding that in view of the admitted fact the appellant court directed  that the disputed Kabala Ext. 1 to be registered in the office of Sub- Registrar, Jhenidah if it is duly presented for registration within 30 days of the decree. The High Court Division also observed that this order was not stayed by the High Court Division and accordingly the High Court Division concluded that the kabala Ext. 1 has been registered long back sometimes in later part of 1975 of in the early 1976 and accordingly rejected the application.                                          … (4)
 
Lawyers Involved:
N. K. Saha, Advocate instructed by Md. Nawab Ali, Advocate-on-Record-For the Petitioners
Respondent-Not represented
Civil Petition for Leave to Appeal No. 938 of 2005
(From the judgment and order dated 19.03.2005 passed by the High Court Division in S.A. No. 302 of 1979).
 
JUDGMENT
 
MM Ruhul Amin J.
 
This petition for leave to appeal is directed against the judgment and order dated 19.03.2005 passed by a Single Bench of the High Court Division in S.A. No.302 of 1979 rejecting the application for restoration of S.A. No. 302 of 1979 which was dis­missed for default for non-compliance of the court's order dated 19.07.2001.
 
2. Short facts are that the matter came up before the lawazima Bench of the High Court Division on 20.02.2001 when none appeared and the learned Single Judge allowed two weeks time to comply with the office report dated 08.06.2000. The appellant did not take any step to put in D.R. costs of Tk. 103/- and the indemnity bond for appointment of an advocate for the minor respondent Nos. 1(a)-1(c). The matter again appeared before the Registrar of the Court on 09.04.2001 and the Registrar asked the office to place the mat­ter before the Court. The matter was accordingly placed before the Court. The matter was accordingly place before the lawazim Bench and an order was passed on 08.05.2001 allowing 4 weeks time as a last chance to put in the requisites. The requisite was not put in and by office note dated 24.06.2001 the Registrar directed to place the matter again before the Single Bench and the learned Single Bench passed the order in lawazima on 19.07.2001 allowing 3 weeks time for compliance with a default order that for non compliance, the appeal shall stand dismissed. The order passed by the lawaz­ima Bench on 19.07.2001 was also not complied with and the office recorded a note on 02.09.2001 that the appeal stood dismissed for non-compliance of the courts order dated 19.07.2001. Thereafter the learned advocate for the appellant Mr. N.K. Saha filed an application for restora­tion of the 2nd Appeal and by order dated 06.12.2004 the Hon'ble Chief Justice referred the matter to the Bench presided over by B.K. Das. J. The application for restoration appeared in the list on 08.12.2004 when none appeared and the matter was adjourned for 1(one) week. The restoration appeared in the list on 08.12.2004 when none appeared and the matter was adjourned for 1(one) week. The restoration application then appeared in the list on 12.01.2005 but none appeared and the application was ordered to stand over till one week after the vaca­tion. The matter accordingly appeared on 07.02.2005 after vacation when none appeared for the appellant petitioner and the learned Single Bench again allowed one week's time as a last chance for ends of justice and the matter accordingly appeared in the list on 19.02.2005 but none appeared for the appellant petitioner. Thereafter, the learned Single Bench directed to put the matter to appear in the list with the name of the learned Advocate. The matter then appeared in the list on 22.02.2005 with the name of the learned Advocate for the appellant but none appeared and accordingly the Bench rejected the application for restoration for default. Subsequently the learned Advocate Mr. Saha filed an application for restoration of the aforesaid restoration application and by order dated 02.03.2005 the learned Single Bench allowed the prayer and restored the restoration appli­cation having found that the learned Advocate Mr. N.K. Saha had been sick and was admitted to BIRDEM Hospital and was under treatment for about one month and could not therefore appear when the application was rejected for default. Subsequently the application for restoration came up for disposal before the learned Single Judge. By the impugned order the learned Single Bench dismissed the application holding that it was stated the due to inadvertence of the clerk of the filing advocate Mr. N.K. Saha the requi­site could not be put in but from record it transpired that Mr. Latifur Rahman was the filing Advocate for the appellant and not Mr. N.K. Saha. The learned Single Judge further opined that there is no rea­son as to why the learned Advocate did not appear before the lawazima Bench on 20.02.2001,08.05.2001 and 19.07.2001 when the matter fixed for putting in requi­sites and the explanation offered for the inordinate delay in complying with the office report dated 24.06.2001 was not at all satisfactory.
 
3. We have heard Mr. N.K. Saha, the learned Counsel for the petitioner and perused the judgment of the High Court Division and other connected papers.
 
4. The learned Single Bench further held that the original suit was one under section 77 of the Registration Act for registration of the disputed document which was dis­missed by the trial court on the ground that there was no material on record to indicate that any appeal was filed before against the order of the Sub-Registrar. The said decision was affirmed by the appel­late court on the finding that in view of the admitted fact the appellate court directed that the disputed kabala Ext. 1 to be regis­tered in the office of the Sub-Registrar, Jhenidah if it is duly presented for regis­tration within 30 days of the decree. The High Court Division also observed that this order was not stayed by the High Court Division and accordingly the High Court Division concluded that the kabala Ext.1 has been registered long back some­times in later part of 1975 of in the early 1976 and accordingly rejected the applica­tion.
 
5. In the facts and circumstances of the case and in view of the discussions made above, 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 impugned judgment
 
The Leave petition is dismissed
 
Ed.