Case No: Civil Petition for Leave to Appeal No. 803 of 1994
Judge: Mustafa Kamal ,
Court: Appellate Division ,,
Advocate: Mr. Abdul Baset Majumdar,,
Citation: 49 DLR (AD) (1997) 150
Case Year: 1997
Appellant: AKM Jamaluddin and others
Respondent: Mantu Lal Majumder
Subject: Procedural Law,
Delivery Date: 1997-5-25
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md Abdur Rouf J
BB Roy Choudhury J
AKM Jamaluddin & others
Mantu Lal Majumder
May 25th, 1997.
Code of Civil Procedure (V of 1908)
Order IX Rule 13
As the suit has been restored on payment of compensatory cost to the petitioners, it is not a fit case for interference.
Abdul Baser Majumder, Advocate, instructed by Abul Quasem, Advocate-on-Record — For Sit Petitioners.
Civil Petition for Leave to Appeal No. 803 of 1994.
(From the Judgment and Order dated 11-894 passed by the High Court Division in Civil Revision No. 117 of 1993).
Mustafa Kamal J:
The plaintiff-petitioners obtained an ex parte decree against the defendant. respondent against which the respondent filed Miscellaneous Case No. 11 of 1992 under Order IX rule 13 CPC which was allowed by the Senior Assistant Judge, 1st Court, Chittagong by judgment and order dated 29-10-92 on the ground that although the respondent could not prove that he was ill on the date of hearing and that he merely filed a medical certificate without examining the doctor who issued the certificate, yet his conduct although out, was diligent and therefore on payment of Taka 1,000.00 to the plaintiff-petitioners within 15 days the suit may be restored to its file.
2. On the plaintiff-petitioner’ revision, Civil Revision No. 117 of 1993, a Division Bench of the High Court Division found that the procedure adopted by the trial Court will encourage the filing of spurious medical certificates. The doctor who granted the certificate or a witness who knows the doctor’s signature should be examined. As such the trial Court’s judgment was set aside and the case was sent back on remand to give an opportunity to the defendant to prove his illness.
3. The plaintiff-petitioners now seek leave to appeal from the aforesaid judgment and order of the High Court Division dated 11-8-94.
4. Mr. A Baset Majumder, learned Advocate for the plaintiff-petitioners, submits that the ex parte decree having been passed after long 7 years from the date of filing of the suit on the failure of the defendant to appear on the date fixed for hearing the application filed under Order IX rule 13 CPC was itself a motivated one and both the Courts having found that the defendant-respondent failed to prove his illness the order of remand is in the nature of giving a premium to the defendant for his laches.
5. As the suit has been restored on payment of compensatory cost to the plaintiff-petitioners we do not think that it is a fit case for interference.
The petition is dismissed.