Babu @ Md. Robiul Islam Babu Vs. Amjad Ali & ors., (Soumendra Sarker, J.)

Case No: Civil Revision No. 4269(con) of 2015

Judge: Soumendra Sarker, J

Court: High Court Division,

Advocate: Mr. Subrata Saha, with Mr. Zainul Abedin, Advocates,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Babu @ Md. Robiul Islam Babu

Respondent: Amjad Ali and others

Subject: Specific Relief Act

Delivery Date: 2019-11-26

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J

 

Judgment on

19.07.2018

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Babu @ Md. Robiul Islam Babu

. . . Defendant No. 01-Petitioner

-Versus-

Amjad Ali and others

. . .Plaintiff-Opposite parties

Specific Relief Act (I of 1877)

Section 9

No Appeal lies against the judgment and decree of a suit filed under section 9 of the S.R Act, but only Civil Revision lies before the High Court Division—The Law enjoins that the appeal against the judgment and decree of a suit under section 9 of the Specific Relief Act, 1877 is not maintainable, as we as against the judgment of the Appellate Court the Civil Revision is also not maintainable and the proper forum is filing of the Civil Revision in the High Court Division against the judgment and decree of a suit filed under section 9 of the Specific Relief Act, 1877. But here in this case, the engaged lawyer of the Applicant instead of proper forum of law, in wrong forum filed one after another case up to the Honorable Appellate Division having no fruitful result.  . . . (9)

Limitation Act (IX of 1908)

Section 5

Lawyer’s wrong advice constitutes sufficient cause to condone the inordinate delay-Section 5 of the Limitation Act, 1908 provides that in appropriate case the condonation of delay can be done. Lawyer’s wrong advice may be a good ground for condoning the delay. Mistaken advice given by the legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the section though there is certainly no general doctrine, which saves the parties from the result of wrong advice. Under the meaning of this section “sufficient cause” is something beyond the control of the party. In this instant case obviously, it is noticed that the Defendant No. 1- Petitioner had no negligence or laches but for the wrong advice of his lawyer he went up to the Honorable Appellate Division. Consequently, the inordinate delay of 2196 days occurred and it was in the good faith of the Applicant and the delay caused due to the lack of jurisdiction of the Court. the entire circumstances of this case led me to hold such a view that the delay caused for filing of the revisional application although inordinate, but it is not for the laches or the negligence of the Applicant, rather; it was due to wrong bona fide advice/instruction of the lawyer concerned. Hence, this Rule has got much merit to succeed.         ...(11, 12, 15 and 16)

Limitation Act (IX of 1908)

Section 14

In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.  . . . (13)

Nitya Gopal Saha Vs. Binod Behari Saha 29 DLR 259 and Managing Director, Rupali Bank Ltd. Vs. Haji Jahanar Begum being dead her heirs: 1(A) Haji Arab Ali and others ref.

Mr. Subrata Saha, with

Mr. Zainul Abedin, Advocates

. . .For the petitioner

Mr. Ekramul Islam, with

Mr. Rafiqul Islam Sarder, Advocates

. . . For the Opposite parties.

                        JUDGMENT

Soumendra Sarker, J: The Rule issued calling upon the Opposite parties No.01-05 to show cause as to why the delay of 2196 days in preferring the revisional application against the judgment and decree dated 06.09.2009 passed by the learned Senior Assistant Judge, 8th Court, Dhaka in Title Suit No. 82 of 2007 should not be condoned and/or pass such other order or further order or orders as to this Court may seem fit and proper.

2.             The facts giving rise to the issuance of the Rule in a nutshell can be stated as follows: The present Opposite parties as Plaintiffs instituted the Title Suit being No. 82 of 2007 in the Court of learned Senior Assistant Judge, Dohar, Dhaka against the Defendant-Petitioner and others. The trial court after trial decreed the suit on 06.09.2009. Being aggrieved the Defendant No. 01 as Appellant preferred a Title Appeal being No. 412 of 2009 in the Court of learned District Judge, Dhaka which was transmitted to the 3rd Court of learned Additional District Judge, Dhaka and the learned Additional District Judge by his judgment and decree dated 14.11.2013 disallowed the appeal and affirmed the judgment and decree passed by the trial court.

3.             Being aggrieved by and dissatisfied with the judgment and decree of the Appellate Court the Defendant No. 01 filed a Civil Revision No. 275 of 2014 before this court. Thereafter, this court by its judgment and order dated 26.05.2015 discharged the Rule. Against that judgment and order the Defendant No. 01 filed a Civil Miscellaneous Petition No. 577 of 2015 before the Honorable Appellate Division. Subsequently, in the Civil Petition for Leave to Appeal No. 2778 of 2015 that was dismissed having no merit. Thereafter, realizing the mistake, in the proper forum against the judgment and decree of the Trial Court, the present Applicant-Defendant No. 01 against whom the decree of recovery of khas possession was passed, has preferred a Civil Revision in this court under section 115(1) of the Code of Civil Procedure, but in filing of the said Civil Revision, there has been a delay of 2196 days. For condonation of the said delay, the Defendant No. 01-Petitioner as has Applicant filed the instant application under section 5 read with section 14 of the Limitation Act, 1908.

4.             During hearing of the Rule, the learned Advocate Mr. Zainul Abedin appeared on behalf of the Applicant while Mr. Md. Ekramul Islam and Mr. Rafiqul Islam Sarder appeared on behalf of the Opposite parties.

5.             The learned Advocate appearing on behalf of the Applicant submits that, due to unavoidable circumstances the delay occurred which was unintentional and not for the latches of the Defendant No. 01-Applicant. The learned Advocate further submits that, the trial court after taking evidence from the sides of the parties passed its judgment and decree on 06.09.2009 directing the Defendant No. 01 to vacate the house, which is the suit property, within 60 days. Thereafter, the Defendant No. 01 against the said decree preferred a Title Appeal No. 412 of 2009 before the learned District Judge, Dhaka. That appeal was disposed of by the learned Additional District Judge, 3rd Court, Dhaka on 14.11.2013 dismissing the same. Being aggrieved the Defendant No. 01 filed a Civil Revision No. 275 of 2014 before this court and obtained a Rule with an interim order of staying further proceedings of Execution Case No. 03 of 2009 pending in the Court of learned Assistant Judge, Dohar, Dhaka. In that Civil Revision the Rule was discharged on 26.05.2015. The learned Advocate also submits that, the Defendant-Applicant against the order of the High Court Division filed a Civil Miscellaneous Petition  No. 577 of 2015 before the Honorable Appellate Division and obtained an order of stay of further proceedings of the Execution Case. Subsequently, the Civil Petition for Leave to Appeal No. 2778 of 2015 was dismissed on 09.12.2015. The learned Advocate lastly submits that the Defendant-Petitioner-Applicant on good faith was fully dependant on his lawyer, who; due to wrong impression filed the cases one after another in wrong forum causing inordinate delay in institution of the Civil Revision before the proper court. The Defendant was very much diligent and sincere for redress of his grievances. In this context, the learned Advocate referred some decision of this court and our Apex Court.

6.             Vis-à-vis, the learned Advocate appearing on behalf of the Opposite parties opposing Rule and submission advanced from the side of the learned Advocate for the Petitioner-Applicant submits that, there is no reasonable cause which can be treated sufficient for condonation of delay, but the Defendant-Petitioner-Applicant only to harass the Plaintiff-Opposite parties has filed the application for condonation of delay, which is liable to be rejected.

7.             In order to appreciate the submission advanced from the sides of the learned counsels of the parties, having gone through the relevant papers, I find that the present Opposite parties being Plaintiffs filed the Original Title Suit No. 82 of 2007 on 28.11.2007 under section 09 of the Specific Relief Act, 1877. That suit was decreed against the present Applicant on 06.09.2009. It also appears from the relevant papers that the Title Suit No. 82 of 2007 was a suit for recovery of khas possession and the decree was passed against the Defendant No. 01 directing him to hand over vacant possession of the suit premises in favour of the Plaintiff-Opposite parties. It also transpires from the connected papers that the Defendant No. 01 as Appellant preferred a Title Appeal No. 412 of 2009 before the learned District Judge, Dhaka which was transmitted to the 3rd Court of the learned Additional District Judge, Dhaka for hearing and disposal, and the learned Additional District Judge vide judgment and order dated 14.11.2013 affirmed the judgment and decree of the Trial Court. Thereafter, against that decree a Civil Revision No. 275 of 2014 was filed before this High Court Division. Ultimately, the Rule which was issued in that Civil Revision was discharged on 26.05.2015.

8.             It is apparent from the face of the linked papers that the learned lawyer who was engaged on behalf of the Petitioner after the disposal of the Civil Revision filed a Civil Miscellaneous Petition being No. 577 of 2015 before the Honorable Appellate Division of the Supreme Court of Bangladesh against the judgment and order of the High Court Division. Ultimately, the Honorable Appellate Division in the Civil Petition for Leave to Appeal No. 2778 of 2015 dismissed the same uttering the word “no merit” on 09.12.2015.

9.             The law enjoins that the appeal against the judgment and decree of a suit under section 09 of the Specific Relief Act, 1877[I of 1877] is not maintainable, as well as against the judgment of the Appellate Court the Civil Revision is also not maintainable and the proper forum is filing of the Civil Revision in the High Court Division against the judgment and decree of a suit filed under section 09 of the Specific Relief Act, 1877[I of 1877]. But here in this case, the engaged lawyer of the Applicant instead of proper forum of law, in wrong forum filed one after another case up to the Honorable Appellate Division having no fruitful result. 

10.         It also appears from the relevant papers that after the disposal of the Civil Petition for Leave to Appeal No. 2778 of 2015, the Defendant-Petitioner has come to this court for filing of the Civil Revision, but meanwhile an inordinate delay of 2196 days occurred.

11.         Section 05 of the Limitation Act, 1908 provides that in appropriate case the condonation of delay can be done. In the case of Nitya Gopal Saha vs Binod Behari Saha 29 DLR 259 this Court held that the delay due to wrong but bona fide advice of the lawyer is a sufficient explanation of delay. Lawyer’s wrong advice may be a good ground for condoning the delay. Mistaken advice given by the legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the section though there is certainly no general doctrine, which saves the parties from the result of wrong advice.

12.         Under the meaning of this section “sufficient cause” is something beyond the control of the party. In this instant case obviously, it is noticed that the Defendant No. 01-Petitioner had no negligence or latches but for the wrong advice of his lawyer he went up to the Honorable Appellate Division. Consequently, the inordinate delay of 2196 days occurred and it was in the good faith of the Applicant and the delay caused due to the lack of jurisdiction of the court.

13.         Section 14 of the Limitation Act, 1908 contemplates: Exclusion of time of proceedings bona fide in court without jurisdiction- in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.

14.         This bench in the case of Managing Director, Rupali Bank Ltd. vs. Haji Jahanara Begum being dead her heirs : 1(A) Haji Arab Ali and others held that the delay caused, if beyond the control of the applicant and there is nothing to hold such a view and draw such inference that the applicant was negligent and was dormant in getting the relief as sought for in wrong forum, the delay needs to be condoned to meet up justice, inasmuch as; the delay occurred purely due to the wrong but bona fide advice of the lawyer, engaged in conducting the case.

15.         Under the above facts and circumstances of this case, the entire circumstances of this case led me to hold such a view that the delay caused for filing of the revisional application although inordinate, but it is not for the latches or the negligence of the Applicant, rather; it was due to wrong bona fide advice/ instruction of the lawyer concerned.

16.         Hence, this Rule has got much merit to succeed.

17.         In the result, the Rule is made absolute without any order as to costs. The delay of 2196 days in preferring the revisional application is hereby condoned.

18.          Office is directed to do the needful at once.

Ed.



Civil Revision No. 4269(con) of 2015