Case No: Civil Petition for Leave to Appeal No. 201 of 1998
Judge: Mainur Reza Chowdhury ,
Court: Appellate Division ,,
Advocate: Dr. Rafiqur Rahman,,
Citation: 56 DLR (AD) (2004) 218
Case Year: 2004
Appellant: Abul Kashem and another
Respondent: Government of Bangladesh and others
Subject: Procedural Law,
Delivery Date: 2002-4-13
Mainur Reza Chowdhury J
SJR Mudassir Hussain J
Abul Kashem & another
Government of Bangladesh and others
April 13, 2002.
The Limitation Act, 1908
The government appearing as a litigant with a petition under section 5 of the Limitation Act and it is found that the government has given satisfactory explanation for delay in filing the case where there is substantial public interest involved, there is no wrong in passing the order in condoning the delay.
Dr. Rafiqur Rahman, Senior Advocate, instructed by Chowdhury AM Zahangir, Advocate‑on‑ Record‑For the Petitioners.
Not represented‑The Respondents.
Civil Petition for Leave to Appeal No. 201 of 1998.
(From the judgment and order dated 17 August 1997 passed by the High Court Division in Civil Revision No. 3617 of 1995).
Mainur Reza Chowdhury J.
This leave petition arises out of judgment and order of the High Court Division in Civil Revision 3617 of 1995 discharging the Rule.
2. The petitioners as the plaintiffs instituted Title Suit No. 333 of 1984 in the First Court of Munsif (now Assistant Judge); Sadar, Chittagong which was renumbered as Title Suit No. 72 of 1985 after being transferred to the second Court of learned Subordinate Judge, Chittagong. The petitioners filed the above suit against the respondent for declaration of title, confirmation of possession and for permanent injunction. The case of the petitioners was that the names of their predecessors were recorded in CS and RS Khatian but in the PS and BS Khatian the names of the respondents was recorded and the Government claimed the said property.
3. The aforesaid suit was decreed ex parte on 20‑2‑1986 and respondent filed Miscellaneous Case No. 28 of 1986 under Order IX rule 13 of the Code of Civil Procedure which was dismissed on contest on 19‑6‑1986 and against the aforesaid order dated 19‑6‑1986 the respondent filed Miscellaneous Appeal No. 107 of 1987. The said appeal was also dismissed for default on 30‑7‑1992. On 16‑4‑1984 Government filed Miscellaneous Case No. 2 of 1994 under Order XLI rule 19 CPC along with an application under section 5 of the Limitation Act praying for condoning the delay. The petitioners resisted the same by filing written objection. The learned Additional District Judge by judgment and order dated 27‑7‑1995 allowed the Miscellaneous Case by setting aside the order of the dismissal and restored the Miscellaneous Appeal No. 107 of 1987 to its file and number. Being aggrieved by the said judgment and order dated 27‑7‑1995 the respondent as petitioner moved the High Court Division. The point for consideration in the Rule by the High Court Division was whether there was any error in the impugned judgment in allowing the Miscellaneous Case or restoring the appeal. It appears that there was delay of 574 days in filing Miscellaneous Case No. 2 of 1994 before the learned Additional District Judge and the respondent filed an application under section 5 of the Limitation Act praying for condonation of delay explaining the reason for the delay. The High Court Division after detailed discussion of the reason for the delay in filing the Miscellaneous Case and the oral evidence was satisfied with the explanation.
4. The High Court Division observed that there was normally no difference between the Governments as the litigant and a public litigant in case of considering an application under section 5 of the Limitation Act. However, following the principles laid down in several decisions referred to in the judgment the learned Single Judge of the High Court Division was of the opinion that some consideration in appropriate circumstances may be extended to Government appearing as a litigant. In the instant case it was found that the Government had given satisfactory explanation for the delay in filing the Miscellaneous Case and that there was substantial Government interest i.e. public interest, involved in the case and, as such, the learned Additional District Judge considering the facts and circumstances passed the impugned judgment and order condoning the delay thereby allowed the application filed under Order XLI rule 19 of the Code of Civil Procedure. The High Court Division on perusal of the impugned judgment and in view of the reasons stated in the judgment which is essentially a decision on facts, did not think that the impugned order calls for interference and therefore discharged the Rule.
5. We do not find any illegality or infirmity in the judgment of the High Court Division.
The petition is therefore, dismissed.