Bangladesh Vs. Abul Kaiser Chow­dhury and others, 37 DLR (AD) (1985) 85

Case No: Civil Appeal No. 52 of 1983

Judge: Badrul Haider Chowdhury,

Court: Appellate Division ,,

Advocate: Mr. Md. Moazzam Hussain,Abdul Wadud Chowdhury,,

Citation: 37 DLR (AD) (1985) 85

Case Year: 1985

Appellant: Government of Bangladesh

Respondent: Abul Kaiser Chow­dhury and others

Subject: Wakf,

Delivery Date: 1984-11-13

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Badrul Haider Chowdhury J
Chowdhury ATM Masud J
Syed Md. Mohsen Ali J
 
People's Republic of Bangladesh, re­presented by the Dy. Commissioner, Faridpur
........................Appellant.
Vs.
Abul Kaiser Chow­dhury and others
………………..Respondents
 
Judgment
November 13, 1984
 
The Code of Civil Procedure, 1908
Order 23 rule 3
When a respondent in an appeal dies and one of his legal representative is al­ready on record in another capacity, the appeal does not abate even though no appli­cation is made to bring them on record. As because Abul Kaiser Chowdhury was already on record but not as Mutwally, it cannot be said that the suit abated due to technical omission of not using the word Mutwally……..(7)
 
Cases Referred To-
Mahabir Prasad Vs. Jage Ram and others of Maddapradesh AIR 1971 (SC) 742; Messrs. Mackinnor Mackensie and Co. vs. Messrs Abdul Rahman Abdul Gani Merchants and another, 8 DLR 349; S. Ahmed Mian vs. Federation of Pakistan and another 7 DLR 376.
 
Lawyers involved:
M. Moazzem Hossain, Deputy Attorney-General, instructed by B. Hossain, Advocate-on-Record—For the Appellant.
A.W. Chowdhury, Sr. Advocate, Md. Nazrul Huq, Advocate-on-Record—For the Respondent No.1.
Ex-parte—For the Respondent Nos. 2(ka) to 2(Tha) & 3 to 4.
 
Civil Appeal No. 52 of 1983
(From the juggernauts and order dated 13.12.82 passed by the High Court Division in Second Appeal No. 66 of 1978.)
 
JUDGMENT
 
Badrul Haider Chowdhury J.
 
This appeal by special leave is directed against the judg­ment and order of the High Court Division in Second Appeal No. 66 of 1978.
 
2. Plaintiff respondent filed Title Suit No. 46 of 1965 for declaration that the Go­vernment notification dated 21.1.63 showing final publications of the compensation Assessment Roll and vesting of the suit property namely, a hat, in the Government under the State Acquisition and Tenancy Act is invalid and ultra vires.
 
3. The said suit was decreed. On appeal the decree was set aside and the suit was dis­missed by the learned Subordinate Judge. Thereafter the plaintiff filed a Second Appeal before the High Court Division and the learned Single Judge sent the case on remand to the lower appellate Court to consider the question of substitution of the successor Mutwalli. This is the impugned order and leave was granted to consider the correctness of the decision of the High Court Division in remanding the case when according to the appellant substitution had already been made according to law.
 
4. The original Mutwalli Abdul Ghani died in November, 1970. During pendency of the appeal before the appellate Court be­low his heirs including son and successor Mutwalli were brought on record by an order dated 20th January, 1971. An objection was raised that he should be substituted in the capacity as successor Mutwalli also and the lower appellate Court by separate order dated 29th April, 1977 substituted him as Mutwalli once again. The learned Single Judge consi­dered that this substitution was not made according to law and procedure and in that view of the matter the case was remanded to the lower appellate Court.
 
5. As stated above Abdul Ghani died during pendency of the appeal. His heir be­came the next Mutwalli namely Abdul Halim Chowdhury and he was impleaded and brought on record by way of substitution. Objection was raised that he had not been substituted as Mutwalli of wakf Estate. Be that as it may, Abdul Hamid Chowdhury died in June, 1973 and thereafter his son and heir Abul Kaiser Chowdhury was appointed Mutwalli in Junes 1973. An application was filed by Abul Kaiser Chowdhury on 5.6.76 stating that the appeal had abated because of non-substitution of the  successor Mutwalli according to law.
 
6. Mr. Moazzem Hossain learned De­puty Attorney-General contended that Abul Kaiser Chowdhury was already on record as heir of the previous Mutwalli and he has been brought on record though specifically the name of the previous Mutwalli was not brought on record as Mutwalli but the fact remains, it is the same person, namely Abdul Halim Chowdhury who was brought on record and after his death Abul Kaiser Chowdhury respondent who is also Mutwalli of the Estate. In this view of the matter the contention of the learned Additional Attorney General that High Court Division had erred in law in remanding the case. It is contended that question of abatement of the appeal had been finally settled and deci­ded by the Court of appeal below. It is contended that the impugned order remanding the case would unnecessarily prolong the pro­ceeding when the appellate Court below recor­ded a finding that the suit was not at all maintainable and dismissed the same.
 
7. The contention has force. After the death of Mutwalli Abdul Ghani, his succes­sor Abdul Halim Chowdhury who was brought on record as Mutwalli and after his death Abul Kaiser Chowdhury became the Mutwalli who was already on record as heir. Therefore the question of substitution of Abul Kaiser Chowdhury as Mutwalli does not arise. It is the same person who had been brought on record and only by a tech­nical rule procedure an attempt has been made to prolong the proceeding. It is well settled that when a party respondent in appeal dies and one of his legal representative is al­ready on record in another capacity the appeal does not abate even though no appli­cation is made to bring them on record, In case of Mahabir Prasad Vs. Jage Ram and others of Maddapradesh, AIR 1971 (SC) 742 the Indian Supreme Court considered the same question as follows: 
 
"Even on the alternative ground that Mahabir Prasad being one of the heirs Saroj Devi there can be no abatement merely because no formal application for showing Mahabir Prasad as an heir and legal representative of Saroj Devi was made. Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act, the proceeding will not abate. On that ground also the order passed by the High Court cannot be sustained." 
 
The Dhaka High Court also took the view that misdescription is mere a technical error in the case of Messrs. Mackinnor Mackensie and Co. vs. Messrs Abdul Rahman Abdul Gani Merchants and another, 8 DLR 349. In 7 DLR 376 in the case of S. Ahmed Mian vs. Federation of Pakistan and another same view was taken: 
 
"We therefore, hold that as in substance the name of the defendant No.1 appears in the plaint the present des­cription is only a clerical mistake which can be amended at any time    without any prejudice to the plaintiff and for the ends of justice we cannot see our way to allow the defendants to take advantage of such an accidental slip of the plaintiff on a mere technical ground for that would be riding technicalities to death." 
 
8. Keeping this principle in view there is no hesitation in saying that the order was bad and as the appellate court below by a cogent reasoning allowed the appeal and dis­missed the suit. We do not find any reason to take a different view. In this view of the matter the appeal is allowed. The suit is dismissed. No order as to costs.
 
Ed.