Aminul Haque Shah Chowdhury and others Vs. Abdul Wahab Shah Chowdhury and others, II ADC (2005) 548

Case No: Civil Appeal No. 79-80 of 1998

Judge: Mahmudul Amin Choudhury,

Court: Appellate Division ,,

Advocate: A. B. M. Nurul Islam,,

Citation: II ADC (2005) 548

Case Year: 2005

Appellant: Aminul Haque Shah Chowdhury and others

Respondent: Abdul Wahab Shah Chowdhury and others

Subject: Wakf,

Delivery Date: 1999-07-21

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mustafa Kamal CJ
Bimalendu Bikash Roy Choudhury J
Mahmudul Amin Choudhury J
 
Aminul Haque Shah Chowdhury @ Aminul Shah Chowdhury
...................Appellant (In Civil Appeal No. 79 of 1998)
Vs.
Abdul Wahab Shah Chowdhury and oth­ers
……..........Respondents (In Civil Appeal No. 79 of 1998)
Aminul Haque Shah Chowdhury @ Aminul Shah Chowdhury
..................Appellant (In Civil Appeal No. 80 of 1998)
Vs.
Abdul Sattar Shah Chowdhury and oth­ers
.............Respondents (In Civil Appeal No. 80 of 1998)
 
Judgment
July 21, 1999.
 
Wakf Ordinance (I of 1962)
Sections 45, 38, 51
Admittedly in appeals it not necessary for the appellant on all dates of hearing of the same the responsibility lies with the filing advocate and here when the learned Advocate failed to appear the appeal was dismissed for default. So laches on the part of the appellant but it is a laches of the Advocate for the appellant and appellant should not suffer.      …. (10)
 
Case Referred to-
43 DLR (AD) 128.
 
Lawyers Involved:
M. A. Wahhab Miah, Senior Advocate, instructed by Azra Ali, Advocate-on-Record – Appellant (In both the appeals).
A.B.M. Nurul Islam, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record - For the Respondent Nos. 1-2 (In Civil Appeal No. 79 of 1998).
S. R. Karmaker, Advocate-on-Record–For the Respondent No. 4 (In Civil Appeal No. 79 of 1998).
Not Represented – Respondent Nos. 3 and 5 (In Civil Appeal No. 79 of 1998).
A. M. Nurul Islam, Senior Advocate instructed by Md. Aftab Hossain, Advocate-on-Record - For respondents (In C. A. No. 80 of 1998).
 
Civil Appeal No. 79-80 of 1998.
(From judgment and order dated 18.5.1998 passed by a Single Bench of the High Court Division in Civil Revision Nos. 3730 of 1997 and 3731 of 1997). 
 
JUDGMENT
 
Mahmudul Amin Choudhury J.
 
These two appeals arises from a common judgment and order dated 18.5.1998 passed by a Single Bench of the High Court Division in Civil Revision Nos. 3730 of 1997 and 3731 of 1997 discharging the Rule issued earlier.
 
2. The short fact leading to these peti­tions is that Ibrahim Shah Waqf Estate was earlier enrolled under E.G. NO. 3543 by an order dated 7.7.1981, Administrator of Waqf in exercise of power under section 51 of the Waqf Ordinance appointed appellant and three others namely, Abdul Wahab Shah Chowdury Abdus Satter Shah Chowdhury and Hajee Hasan Shaha Chowdhury who are respondents in both the appeals joint Mutwalli of the Waqf Estate. Against this order Abdul Wahab Shah Chowdhury and Abdul Quayyum Shaha Chowdhury a beneficiary preferred Miscellaneous Appeal No.129 of 1981 before the learned District Judge, Rajshahi under section 43 of the aforesaid Ordinance. Abdus Satter Shaha Chowdhury also preferred Miscellaneous Appeal No. 153 of 1981 before the said court. After cre­ation of district at Nowgaon said two appears were transferred to the court of dis­trict Judge, Nowgaon and renumbered as Miscellaneous Appeal Nos. 18-19 of 1984. These appeals were fixed for hearing on 17.1.1996. But due to un appearance from the side of the appellant those were dis­missed for default by the learned Additional District Judge, First Court, Nowgaon. Then Miscellaneous Case Nos. 3-4 of 1996 under Order 41 Rule 19 of the Code of Civil Procedure were filed for restoration of these two appeals on substantiate the same ground. They alleged that after transfer of the appeals from Rajshahi to Nowgaon they have been prosecuting the appeals by engaging lawyers but their lawyers did not take necessary steps which led to dismissal of the appeals and they came to know of the dismissal in November 1996 for the first time, they along with appellants filed a peti­tion under Order 41 Rule 19 of the Code of Civil Procedure. They also filed applica­tions for condonation of delay in filing peti­tions. The matter was heard by the learned Additional District Judge, First Court, Nowgaon who condoned the delay and allowed the Miscellaneous Case restoring the appeals to their original files and num­bers for ends of justice by orders dated 24.8.1997. The petitioners then filed Civil Revision Nos. 3730 and 3731 of 1997 before the High Court Division but a Single Judge of that Division discharged the Rules refusing to interfere with the matter.
 
3. Leave was granted to consider whether the High Court Division misdirect­ed itself in law in taking view that both the Section 5 of the Limitation Act and under Order 41 Rule 19 of the Code of Civil Procedure applied to an appeal filed under section 43 of the Waqf Ordinance and whether the High Court Division was com­mitted wrong in upholding the orders of restoration of the appeals made by the learned Additional District Judge upon a wrong assumption that the appellants have no knowledge of the transfer of the appeals in question transferred from Rajshahi to Nowgaon and whether the appellate court as well as the High Court Division has com­mitted error of law in condoning the delay in preferring Miscellaneous Case and restoring appeals for ends of justice.
 
4. Mr. M. A. Wahhab Mian, learned Advocate appearing on behalf of the appel­lants submits that the Waqf Ordinance is a special statute and all the provisions of the Code of Civil Procedure including Order 41 Rule 19 of the Code is not applicable, the appellate Court committed illegality in allowing the Miscellaneous Case filed under Order 41 Rule 19 of the Code of Civil Procedure. It is submitted that the Code of Civil Procedure is applicable only for a lim­ited purpose as provided under section 38 of the Waqf Ordinance and for no cither pur­pose. He further submits that if any person is aggrieved by any order of the administra­tor pending any one as Motwalli may prefer appeal to the District Judge whose decision shall be final under section 43 of the Ordinance and when in the present appeals were dismissed though for default, the deci­sion is final and the same can not be set aside under Order 41 Rule 19 of the Code of Civil Procedure. It is submitted that one the appeal is dismissed as it affect finality. He further submitted that section 43 of the Ordinance has not given any power to the District Judge to set aside whether appellant was benefited by sufficient cause in appear­ing before him when the appeal was called on for hearing. It is also contended that from the evidence on record it appeared that the appellant was not prevented by suffi­cient cause. Mr. Wahhab Mian submitted that the High Court Division failed to appreciate this aspect of the matter and wrongly discharged the Rules.
 
5. Mr. A. B. M Nurul Islam, learned Advocate appearing on behalf of the respondents submits that to file an appeal under section 43 of the Waqf Ordinance on being aggrieved by an order of the Administrator is a substantive right if the appeal is dismissed for default, an applica­tion under Order 41 Rule 19 of the Code of Civil Procedure for readmission of the appeal can be maintained as it is a proce­dural matter. He submits that the word "decision" of the District Judge means final adjudication pronouncing judgment on the merit of the appeal which does not include the order of dismissing appeal in default. He submits that the dispute is of Civil nature and the District Judge's acts not as a persona designate but as a Court in deciding appeal filed under the Waqf Ordinance thereafter readmission of the appeal, the court as to follow all the provisions of the Code of Civil Procedure in disposing of the appeal as there is no other procedure pre­scribed by any other law. It is submitted that the Court can not be armless, it has to pro­ceed with the appeal for final adjudication. He further submits that there is no scope for thinking that the District Judge as referred to section 43 of the Waqf Ordinance is a persona designate but is a court in deciding appeals filed under section 43 of the ordi­nance, he is to follow, all the procedure of the Code of Civil Procedure. He submits that the Civil court is entitle to try all kind of suit of civil nature unless the same is specifically barred under any specific pro­vision of the law and in the present case there is no such bar. Learned Advocate fur­ther submits that from the materials on record it would appear that the appeal was dismissed for default due to no fault of the appellant respondent but due to laches on the part of his Advocate. The appellant respondent was not informed by the learned Advocate about the date of hearing of the appeal and in such a situation the learned District Judge has not committed any wrong or illegality in readmitting the appeal under order 41 Rule 19 of the Code of Civil Procedure. His point raised in this appeal is on the applicability of order 41 Rule 19 of the Code of Civil Procedure.
 
6. Mr. M.A Wahhab Miah, learned Advocate on behalf of the appellant submits that the decision of the learned District Judge is final, the remedy available to appellant respondent is in the forum of an application under section 115 of the Code of Civil procedure. Mr. Wahhab Miah fur­ther submits that the affect of dismissal of the appeal in default is one though not merit. But it is an ex parte dismissal of the appeal itself. And in such a situation provi­sions of Order 41 Rule 19 of the Code is not applicable in support of his submissions Mr. Wahhah Miah placed line in the case report­ed in 43 DLR (AD) 128 where it has been held the affect of order of Miscellaneous case in default is rejecting an application to set aside a decree passed ex parte, it is not an order passed on merit but ex parte. From this decision Mr. Wahhab Mia tried to submit that the order of dismissal of the appeal in the present case is a final order. Here in the present case the main question is whether the provisions of Order 41 Rule 19 of the Code of Civil procedure is available to the appellant when his appeal was dismissed for default. It is nobodies case that the words "District Judge" as mentioned in Section 43 of the Waqf Ordinance is a per­sona designate, Mr. Wahhab Miah frankly submits concedes that the District Judge here is not a persona designata but a court. This section 43 of the Code provided that an appeal against the order of appointment of Mutawalli shall have to be filed before the District Judge. Excepting this nothing has been mentioned in this section or in the Ordinance how the District Judge is to deal with the appeal when this is the position as the District Judge mentioned in the section is a court, he shall follow the procedures as laid down in the Code of Civil Procedure in disposing of the appeal filed before him. In decided point raised we may very well con­sider the provisions of section 108 of the Code if Civil procedure. This section pro­vides for an application of the provisions regarding appeals from orders made under the Code or under other special law for which there is no other procedure for appeal. In the Waqf Ordinance no proce­dure has been mentioned how the District Judge is to dispose of the appeals. Section 141 of the Code of Civil Procedure relates to procedural matters and it provides that the procedure provided in the Code in regards to suits shall be followed as far as it can be made applicable in all proceeding in any Court of Civil jurisdiction and section 121 of the Code of Civil Procedure pro­vides that the Rules in the First Schedule shall have affect as if enacted in the body of this Code unless and until annul or alter in accordance with the provisions of this part 10 of the Code. From consideration of this provisions of the Code as well as section 43 of the Waqf Ordinance it appears that the district Judge as contemplated under sec­tion 43 of the Waqf Ordinance is not per­sona designata but a court and as it is a court of civil nature, the provisions of aforesaid section and provisions of the Code of Civil Procedure is very much attracted in the present case and according­ly the provisions of Order 41 Rule 19 of the Code of civil procedure is available to the respondents. Mr. Wahhab Miah earlier placed reliance in the case reported in 43 DLR (AD) 128 and tried to express that as the appeal was dismissed for default the respondent had remedy available in a revisional application but from this decision it appears that in the given facts and circum­stances it has no application.
 
7. The Short fact leading to this decision is that the plaintiff's suit for declaration of title was decreed ex parte and the defendant filed Miscellaneous Case under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree, that Miscellaneous case was also dismissed for default. Thereafter, the petitioner filed an application under section 151 of the Code of Civil procedure for vacating the order dismissing the Miscellaneous Case for default and for restoration of the same. The trial Court allowed the same, against which the High Court Division was moved which set aside the impugned order on the ground that appeal lies against an order under Order 9 Rule 13 of the Code of Civil Procedure rejecting an application for an order to set aside the decree passed ex parte. Hence the application under section 151 of the Code of Civil Procedure was not main­tainable. In that case it was submitted that the order of the trial court dismissing the Miscellaneous Case in default is not an order under order 9 Rule 13 of the Code of Civil Procedure rejecting an application for an order to set aside a decree passed ex parte. The facts leading to that decision and the facts of the present case are distinct­ly different and so also the proposition of law. In such circumstances we are of the view that this decision has no manner of application.
 
8. We have already found that the provi­sion of the Code of Civil Procedure is available to the District Judge in deciding the matter placed before him under the Waqf Ordinance. In view of section 121 of the Code of Civil Procedure we hold that the provision of Order 41 Rule 19 of the Code is available to the respondents. The submissions made by Mr. Wahhab Mia that the decision by way of dismissal of the appeal on default is therefore final which cannot be set aside and the appeal restore under Order 41 Rule 19 of the Code of Civil Procedure has there­fore no force and the same cannot be accepted.
 
9. Mr. Wahhab Miah then submits that section 43 of the Waqf Ordinance has not given any power to the District Judge to decide whether appellant was prevented by sufficient cause in appearing before him when the appeal was called on for hearing the judgment and order of the District a Judge in deciding the order of dismissal of the appeal had default can not be sustained.
 
10. We have already held that the provi­sion of Order 41 Rule 19 of the Code of Civil Procedure is available to the appellant before the trial court. Evidence was led from the side of the appellant to prove that he was not informed of the date of hearing of the appeal by his learned Advocate and his clerk which prevented him from appearing when the appeal was called on for hear­ing. Appellant deposed as P.W.1 and he stated that he was not informed by his advo­cate about the date of hearing of the appeal and when the learned Advocate failed to appear the appeal was dismissed for default. Respondent has no examined any witness to prove that the allegation made by the appeal petitioner was wrong so from the evidence of P.W. 1 Admittedly in appeals it is not nec­essary for the appellant to appear on all dates of hearing of the same the responsibil­ity lies with the filing advocate and here when the learned Advocate failed to appear the appeal was dismissed for default. So laches not on the part of the appellant but it is a laches of the Advocate for the appellant and appellant should not suffer. On consid­eration of the evidence on record the court below came to the specific finding that the respondents succeeded in proving that he was prevented by sufficient cause in appearing before the learned Additional District Judge when the appeal was called on for hearing. We have considered the evi­dence on record and on hearing of the learned Advocate of both sides we hold that the appellate court as well as the High Court Division has not committed any wrong in restoring the appeal to its original file and number. There is therefore no merit in these appeals.
 
Both the appeals are dismissed.
 
Ed.