Case No: Civil Appeal No. 28 of 2000
Judge: Mohammad Fazlul Karim ,
Court: Appellate Division ,,
Advocate: Khondker Mahbubuddin Ahmed,,
Citation: 1 ADC (2004) 217
Case Year: 2004
Appellant: Aminul Islam Chowdhury and others
Respondent: Abdul Hamid and others
Subject: Procedural Law,
Delivery Date: 2003-10-27
Mohammad Fazlul Karim J
Md. Hamidul Haque J
Md. Tafazzul Islam J
Aminul Islam Chowdhury and others
Abdul Hamid and others
October 27, 2003.
Code of Civil Procedure, 1908
Order 41 rule 31
This court feel that it should not decide the points raised in this appeal and with all fairness and keeping the spirit of expeditions disposal of the suit, the High Court Division could dispose of the rule upon hearing the parties on the view of the merit of the suit considering the pleadings and the evidence on record together with the point of law involved in the case. …. (5)
In view of the above, without making any comment on the merit regarding the points for which leave has been granted in this appeal we set aside the impugned judgment and order of the High Court Division and remand the case back to the High Court Division for disposing of the rule in accordance with law. …. (6)
Khandaker Mahbubuddin Ahmed, Senior Advocate, instructed by S.R. Khaoshnabish, Advocate-on-Record-For the Appellants.
Ex-parte- the Respondents.
Civil Appeal No. 28 of 2000.
(From the Judgment and order dated 29th May, 1997 passed by the High Court Division in Civil Revision No.157 of 1996).
Mohammad Fazlul Karim J.
This appeal by leave is directed against the judgment and order dated 29.05.1997 passed by the High Court Division in Civil Revision No. 157 of 1996 making the rule absolute remanding the suit to the lower appellate court directing to dispose of the appeal within 6 months from the date of the receipt of the record for writing a proper judgment in the light of the observations made there in setting aside the judgment and decree of the appellate court passed in Title appeal No. 5 of 1993 with a direction to the parties to maintain status quo in respect of the suit land.
2. The High Court Division while remanding the suit observed as under:
"The only point to be decided as to whether the lower appellate Court was properly and legally reversed the findings of the trial Court. I have heard the learned Advocate of both sides, perused the application and the records of the case. It appears that the trial Court upon framing 6 (six) issues decided the issues upon due consideration of materials of record placed by both the parties and thereafter decreed the Suit in favor of the plaintiff petitioner. But on perusal of the judgment of the lower appellate Court find that the pearled appellate Court while reversing the finding of the trial Court has not reassessed the evidence of the parties to examine the findings recorded by the trial Court adequately and satisfactorily. Furthermore, In find that it is not clear upon reading the judgment itself that all the relevance evidence has been substantially considered by the lower appellate Court and met all the reasons given in the judgment of the trial Court. The law as provided under Order 41 Rule 31 of the C.P.C. enjoins that the appellate court must given reasons whether affirming or reversing a finding and it should be more so when the appellate Court reversed the trial courts finding by its own independent finding.
3. Having regarded to the above aspect of the case find substance in the contention of the learned Advocate for the petitioner, considering the submission of the learned Lawyers of the parties and in view of the facts and circumstances of the case feel that for the ends of justice and for proper adjudication of the points involved, the cases should go on remand to the lawyer appellate Court in order to reassess the evidence of the parties. Examine findings recorded by the trial court giving reasons either by upholding or reversing the same following strictly the inoperative provision as laid down in order 41 rule 31 C. P. C.
4. Leave was granted to consider the submission of the learned Counsel for the appellant:
"....that the fact of surrendered of plot No. 526 being a concurrent finding of the learned Courts below and only the question as to whether surrender was legal being in issues, the High Court Division erred in remanding the case to the learned Court of appeal below for re-assessing evidence as to surrender. He lastly submits that surrender of plot No. 526 having taken place as early as 1940 and landlords possession (upon such surrender) having been found by the learned Court below, the question as to whether surrender was legal is academic and cannot have any effect on disposal of the instant suit."
5. On perusal of the Judgment of the trial court it appears that the trial Court has considered the evidence on record and decreed the suit but the Court of appeal below without reversing the finding arrived at by the trial Court dismissed the Suit. The High Court Division, however, remanded the suit to the lower appellate court for writing a proper judgment in accordance with law. The evidence on record are sufficient to dispose of the case in its revisional jurisdiction under section 115(1) of Code of Civil Procedure and in that view of the point of law involved in this case decision on the contesting issues involved in the suit Court be given by the High Court Division by assessing the evidence. This Court feel that it should not decide the points raised in this appeal and with all fairness and keeping the spirit of expeditious disposal of the suit, the High Court Division Could dispose of the rule upon hearing the parties on the merit of the suit considering the pleadings and the evidence on record together with the point of law involved in the case.
6. In view of the above, without making any comment on the merit regarding the points for which leave has been granted in this appeal we set aside the impugned judgment and order of the High Court Division and remand the case back to the High court Division for disposing of the rule in accordance with law.
7. Mr. Khondaker Mahbubuddin Ahmad, the learned Counsel appearing for the appellants has also frankly conceded to the efficacy of the above order.
8. This appeal is allowed without any order as to costs and the judgment and order of the High Court Division are set aside and the case is remanded back to the High Court Division for hearing the rule and for disposal of the same in accordance with law.