Abdul Wahab Biswas Vs. Abdul Matin Miah & others, 53 DLR (2001) 196

Case No: Civil Revision No. 4532 of 1997

Court: High Court Division,,

Advocate: Mr. Shamsul Huda,,

Citation: 53 DLR (2001) 196

Case Year: 2001

Appellant: Abdul Wahab Biswas

Respondent: Abdul Matin Miah and others

Subject: Procedural Law,

Delivery Date: 1999-5-26

 
Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
Mahfuzur Rahman J
 
Abdul Wahab Biswas
…………….Petitioner
Vs.
Abdul Matin Miah & others
……………Opposite Parties
 
Judgment
May 26, 1999.
 
Code of Civil Procedure (V of 1908)\
Order XLI rule 12
There is no provision of law for allowing appeal without serving any notice to the respondents. …. (19)
 
Lawyers Involved:
Md. Shamsul Huda, Advocate—For the Petitioner.
Not represented—the Opposite Parties.
 
Civil Revision No. 4532 of 1997
 
JUDGMENT
 
Mahfuzur Rahman J.
 
This Rule is directed against an order passed by District Judge, Faridpur on 17-11-97 in Miscellaneous Appeal No.94 of 1997 allowing the appeal on the date of admission hearing without serving any notice to the plaintiff-respondents setting aside the judgment and order passed by the Subordinate Judge. Second Court, Faridpur on 09-11-97 in Title Suit No. 7 of 1997 granting temporary injunction.
 
2. Short facts relevant are that the petitioner and pro forma opposite party Nos.6-13 being plaintiffs instituted Title Suit No.7 of 1997 in the Court of the Subordinate Judge, Second, Court, Faridpur for declaration of title in the suit land.
 
3. Defendant opposite party Nos.1-5 have been contesting the suit by filing written statement denying all material allegations made in the plaint.
 
4. When the suit was thus proceeding the plaintiffs filed an application under Order 39 rules 1 and 2 of the Code of Civil Procedure for injunction with a prayer for temporary ad interim injunction for restraining the contesting defendants from entering into the suit land and from dispossessing the plaintiffs from the Suit land.
 
5. The learned trial Court after considering the facts and circumstances, perusing the documents of both sides and the Commissioners Report granted ad interim injunction restraining the defendants as prayed for by his order dated 09-11-97.
 
6. Being aggrieved by the aforesaid order the contesting defendants filed Miscellaneous Appeal No. 94 of 1997 before the District Judge, Faridpur.
 
7. The learned District Judge entertained the appeal and fixed 17-11-97 for admission hearing and on that date allowed the appeal without notifying the plaintiff-respondent setting aside the order of the trial Court granting ad interim injunction.
 
8. As against this the petitioner moved this court and obtained the present Rule.
 
9. Mr. Md. Shamsul Huda, the learned Advocate appearing for the petitioner submits that the learned District Judge on the date fixed for admission of the appeal without serving any notice to the plaintiff respondents or giving any chance of hearing to the plaintiff respondents depriving them from their legal right of hearing which has occasioned serious failure of justice. He further submits that the learned Court after considering all the facts, circumstances, the documents of the parties and also the Commissioner’s report granted ad-interim injunction restraining the contesting defendants as prayed for by his order dated 09-11-1997 but the learned District Judge without at all considering this aspect of the matter allowed the appeal on the date fixed for admission of the appeal without giving any chance to the plaintiff to contest the appeal which is absolutely illegal and against the provision of law in this regard occasioning serious failure of justice and liable to be set aside.
 
10. None appears on behalf of the opposite parties to oppose the Rule.
 
11. Heard the learned Advocated for the petitioner. Perused the impugned order and the order of the trial Court granting ad-interim injunction. It appears that the learned trial Court granted ad interim injunction after considering the facts, circumstances and documents. The defendants being aggrieved filed the appeal impugned before us as provided under Order XLIII rule 1(r) of the Code of Civil Procedure. Learned District Judge entertained the appeal and fixed 17-11-97 for admission hearing but on that date allowed the appeal without any notice to the contesting plaintiff-respondents setting aside the order of the trial Court granting ad-interim injunction.
 
12. Section 108 of the Code of Civil Procedure provides as follows:
 
108. The provisions of this Part relating to appeals from original decrees shall so far as may be, apply to appeals- (a) from appellate decrees, and (b) from orders made under this Code or under any special law in which a different procedure is not provided.”
 
13. Admittedly this instant appeal impugned was against order and the aforesaid provision of law does not provide different procedure relating to appeals from orders.
 
14. Furthermore, Order XLI rule 9(1) on the Code of Civil Procedure provides that:
 
"9. (1) Where a memorandum of appeal is admitted, the Appellate Court or the proper officer of that Court shall endorse thereon the date of presentation, and shall register the appeal in a book to be kept for the purpose.
(2) Such book shall be called the Register of Appeals. According to the above provision the Appellate Court shall register the memorandum of appeal and then fix a date for admission hearing."
 
15. Rule 11(1) (2) of Order XLI of the Code provides that:
 
"11. (1) The Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.
(2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred."
 
16. By the aforesaid provision of law the appellate Court in Case of dismissal of the appeal may not serve any notice to the respondents or his Advocate or to the court against whose decree or order appeal is preferred.
 
17. But in Case where the court does not dismiss the appeal under rule 11(1) (2) of Order XLI of the Code shall proceed in accordance with the provision laid under 12(1)(2) of that Order of the Code. Rule 12 (1) (2) provides that:
 
"12. (1) unless the Appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing the appeal.
(2) Such day shall be fixed with reference to the current business of the Court, the place of residence of the respondent, and the time necessary for the service of the notice of appeal, so as to allow the respondent sufficient time to appear and answer the appeal on such day."
 
18. Thus it appears that after the admission of the appeal it is mandatory to serve notice upon the respondents and allow sufficient time to appear and answer the appeal on such day which is fixed for hearing.
 
19. As no different procedure has been provided in appeals against orders we find that learned District Judge in clear violation of the mandatory provision of law passed the impugned order allowing the appeal on the date fixed for admission of the appeal. After admission of the appeal he should have served notice upon the respondents fixing a date for hearing, giving sufficient time to allow them to appear and answer the appeal on such day and his decision to the contrary cannot be sustained in law and is liable to be set aside. There is no provision of law allowing appeal without serving any notice to the respondents.
 
20. In view of the discussions made above we find that the impugned order passed by the learned District Judge cannot be sustained in law and the matter should go on remand for hearing in accordance with law.
 
21. In the result the Rule is made absolute without any order as to costs. The impugned order passed by the learned District Judge on 17-11-97 in Miscellaneous Appeal No. 94 of 1997 allowing the appeal summarily on the date of admission of the appeal is hereby set aside. The Case is sent back on remand to the District Judge for rehearing of the appeal afresh by a court other than his having jurisdiction to hear the same in the light of the observations made above.
 
22. The learned District Judge should be careful henceforth in passing orders so that it may not be repeated.
 
Communicate the order at once.
 
Ed.