Adamjee Sons Ltd. Vs. Jiban Bima Corporation, 16 BLT (AD) (2008) 181

Case No: Civil Petition for Leave to Appeal No. 108 of 1993

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,Mr. Ozair Farooq,,

Citation: 16 BLT (AD) (2008) 181

Case Year: 2005

Appellant: Adamjee Sons Ltd.

Respondent: Jiban Bima Corporation

Subject: Procedural Law,

Delivery Date: 2005-5-30

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin J
M. M. Ruhul Amin J
Md. Tafazzul Islam J
 
Adamjee Sons Ltd.
………………….Petitioner
Vs.
Jiban Bima Corporation
………………….Respondent
 
Judgment
May 30, 2005.
 
Limitation Act, 1908
Section 5
The petitioner filed petition for leave to appeal and said petition for leave to appeal was dismissed since the learned Advocate-on-record represented to the Court that he had no instruction to proceed with the petition for leave to appeal— Seeking restoration of the petition for leave to appeal was out of time by 1387 days, it has been stated that the petitioner used to inquire of the learned Advocate-on-record regularly about the position of the leave petition and the petitioner was informed by the learned Advocate-on-record that the leave petition awaiting hearing.      … (2)
 
Lawyers Involved:
Mahbubey Alam, Senior Advocate, instructed by A.K.M. Shahidul Huq, Advocate-on-Record- For the Petitioner.
Ozair Farooq, Senior Advocate, instructed by Mrs. Mahmuda Begum, Advocate-on-Record- For the Respondent.
 
Civil Petition for Leave to Appeal No. 108 of 1993.
 
JUDGMENT
 
Md. Ruhul Amin J.
 
This is a petition for restoration of the aforementioned civil petition for leave to appeal which was dismissed on June 21, 1998 for default on the representation of the learned Advocate-on-record for the petitioner that he had no instruction to proceed with the petition for leave to appeal. The petition for leave to appeal was filed against the judgment dated August 3, 1992 in First Miscellaneous Appeal No.75 of 1983 dismissing the same. The First Miscellaneous Appeal was filed against the judgment and decree dated May 22, 1983 of the 3rd Court of Subordinate Judge (now Joint District Judge) passed in Title Suit No. 467 of 1982 making the award Rule of the Court. There is a dispute over the ownership of the building in plot Nos.115-120 of Motijheel Commercial Area between the petitioner and the Jiban Bima Corporation and over that suits were filed by both the parties. In the afore state of the matter the authority took decision to get the dispute between the petitioner and the Respondent resolved by a sole Arbitrator and following that decision sole Arbitrator was appointed and finally sole Arbitrator made award on August 29, 1993 in favour of the Respondent. Thereupon the petitioner filed objection under sections 30 and 33 of the Arbitration Act, 1940 seeking setting aside of the award and thereupon Title Suit No. 423 of 1982 was registered. The sole Arbitrator filed the award in the Court along with an application under section 14(2) of the Arbitration Act, 1940 (hereinafter the Act) to make the award Rule of the Court and thereupon Title Suit No.467 of 1982 of the 3rd Court of Subordinate Judge was registered. The Court decreed the Title Suit No. 467 of 1982 ex parte on May 22, 1983. The Respondent i.e. Jiban Bima Corporation filed Execution Case No. 33 of 1983, that while the petitioner came to know about the ex parte decree on October 6, 1983, it filed an application under Order 9, Rule 13 of the Code of Civil Procedure whereupon Miscellaneous Case No.780 of 1983 was registered, for setting aside of the ex-parte decree dated May 22, 1983. The said Miscellaneous Case was dismissed on September 30, 1984. The petitioner as against the ex parte decree filed Miscellaneous Appeal No.75 of 1983 and as against the order rejecting the Miscellaneous case (under Order 9, Rule 13 of the Code of Civil Procedure) filed Miscellaneous Appeal No. 188 of 1984. In Title Suit No. 423 of 1982 an application under Order 7, Rule 11 of the Code of Civil Procedure was filed and the same having been rejected the Respondent moved the High Court Division and obtained Rule in Civil Revision No. 762 of 1986, that Miscellaneous Appeal No.188 of 1984 was converted into Civil Revision No. 1526 of 1990. The High Court Division dismissed the Miscellaneous Appeal No. 75 of 1983 and discharged the Rule in Civil Revision No. 1526 of 1990. The petitioner filed petition for leave to appeal only against the judgment passed in First Miscellaneous Appeal No.75 of 1983. As stated hereinbefore the said petition for leave to appeal was dismissed for default since the learned Advocate-on-record represented to the Court that he had no instruction to proceed with the petition for leave to appeal. The petition for restoration of the petition for Leave to Appeal No. 108 of 1993 which was dismissed on June 21, 1998 was filed on April 11, 2002 stating that the petitioner did not orally or in writing give instruction to the learned Advocate-on-record not to proceed with the petition for leave to appeal and that because of the dismissal of the petition for leave to appeal the petitioner has suffered irreparable loss and injury and as such it is necessary to set aside the order of dismissal and to restore the petition for leave to appeal to its original file and number.
 
2. Since the petition filed seeking restoration of the petition for leave to appeal was out of time by 1387 days the petitioner along with the application for restoration filed an application seeking condonation of delay. In the petition seeking condonation of delay it has been stated that before March 16, 2002 they had no knowledge about the dismissal of the petition for leave to appeal. It has been stated that in the Inter Ministerial meeting of the Ministry of Jute and the Ministry of Commerce the Respondent disclosed about the dismissal of the petition for leave to appeal and thereupon on April 10, 2002 application for the certified copy of the order of dismissal was filed and got the same on that date and filed the petition on the following day. It has been stated that delay in filing the petition for leave to appeal was unintentional and due to the reasons beyond the control of the petitioner. In paragraph 3 of the petition for condonation of delay it has been stated that the petitioner used to inquire of the learned Advocate-on-record regularly about the position of the leave petition and the petitioner was informed by the learned Advocate-on-record that the leave petition awaiting hearing. In the background of the aforesaid statement of the petitioner the accusation against the learned Advocate-on-record that he at no point of time disclosed to the petitioner about the dismissal of the leave petition appears to be not genuine. Since in our view there was no reason for the learned Advocate-on-record while the petitioner inquired of him about the position of the leave petition not to give the state of the leave petition or that not to tell the petitioner about the disposal of the leave petition in the manner as stated hereinbefore.
 
In the afore state of the matter we are of the view explanation offered seeking condonation of delay is not convincing and satisfactory.
 
Accordingly the application for restoration is rejected being barred.
 
Ed.