Abdul Quddus (Md) Vs. Md. Mobarak Hossain, 51 DLR (AD) (1999) 54

Case No: Civil Petition for Leave to Appeal No. 571 of 1996

Judge: Latifur Rahman ,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,,

Citation: 51 DLR (AD) (1999) 54

Case Year: 1999

Appellant: Abdul Quddus (Md)

Respondent: Md. Mobarak Hossain

Subject: Procedural Law,

Delivery Date: 1997-1-19

 
Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal CJ  
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
 
Abdul Quddus (Md)
……………….Petitioner
Vs.
Md. Mobarak Hossain
….……………Respondent
 
Judgment
January 19, 1997.
 
The Code of Civil Procedure, 1908 (V of 1908)
Section 151
The learned single judge committed no illegality in affirming the order passed by the trial court in exercise of his power under section 151 of the C.P.C , the trial court having restored the case on the ground of filing the petition for restoration on the date of dismissal of this suit. …..(6)  
 
Lawyers Involved:
Sultan Ahmed, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record—For the Petitioner.
Mahbubey Alam, Advocate, instructed by Md. Sajjadul Huq, Advocate-on-Record— For the Respondents.
 
Civil Petition for Leave to Appeal No. 571 of 1996
 
JUDGMENT
 
Latifur Rahman J.
 
The defendant petitioner has filed Civil Petition Nos 571 and 597 of 1996. Civil Petition No. 571 of 1996 arises from the judgment and order dated 28-8-96 passed by a Single Judge of the High Court Division in Civil Revision No. 645 of 1996 discharging the Rule, thereby affirming the judgment and order dated 9-3-96 passed by the Assistant Judge, Shahzadpur, Serajganj restoring Other Class Suit No.22 of 1987 dismissed for default, on an application filed by the plaintiff- respondent under section 151 of the Code of Civil Procedure.
 
2. Civil Petition No.597 of 1996 arises from the judgment and order of Single Judge of the High Court Division dated 28-8-96 passed in Civil Revision No.1827 of 1996 discharging the Rule after affirming the judgment and order dated 16-6- 96 passed by the Subordinate Judge, 1st Court, Serajganj in Miscellaneous Appeal No. 11 of 1988 refusing to vacate the order of temporary mandatory injunction arising from Other Class Suit No. 22 of 1987 of the Court of Assistant Judge, Shahzadpur, Serajganj.
 
3. The short point involved in civil petition No. 571 of 1996 is whether the suit which was dismissed for default for non-appearance of the plaintiff can be restored by filing an application under section 151 of the Code of Civil Procedure instead of filing a Miscellaneous case under Order 9 rule 9 of the Code of Civil Procedure.
 
4. The plaintiff-respondent filed Other Class Suit No.22 of 1987 in the Court of Senior Assistant Judge, Shahzadpur for permanent injunction on 30- 3-87. The suit was ultimately dismissed for default on 2-3-96 for non-appearance of the plaintiff. On the same day the plaintiff filed an application under section 151 of the Code of Civil Procedure for restoration of the suit dismissed for default. The suit was restored by the trial Judge on 9-3-96. The order of restoration of the suit was affirmed by the learned Single Judge of the High Court Division.
 
5. Mr. Sultan Ahmed, learned Advocate appearing for the defendant-petitioner submits, first, that a specific legal remedy having been provided under Order 9 rule 9 of the Code, the restoration of the suit under section 151 of the Code is illegal and the learned Single Judge illegally affirmed the order of restoration of the suit dismissed for default.
 
6. After dismissal of the suit on default an application under section 151 of the Code was filed for restoration of the suit on the same day. The trial Judge kept the matter for hearing and on 9-3-96 restored the suit to its tile and number. The trial Court in its discretion restored the Suit as the application was filed on the same day. A discretion having been exercised in the facts of the present case, we do not think that the learned Single Judge committed any illegality in affirming the order passed by the trial Court in exercise of his power under section 151 of the Code in the facts of the case. There was no lack of jurisdiction of the trial Court to restore the Suit.
 
7. Mr. Sultan Ahmed next submits that the application for restoration was not filed by the plaintiff but it was filed by one Abdul Latif who was not authorised to file the application.
 
8. It appears from the record that no objection was raised before the trial Court as to the competency of the said Abdul Latif to file the application. This point was also not specifically raised before the High Court Division.
 
9. The order of restoration of the suit having been affirmed in Civil Revision No. 645 of 1996, Civil Revision No. 1827 of 1996 was not pressed by the learned Advocate of the parties.
 
Accordingly, both the petitions are dismissed.
 
Ed.