Chairman, Mymensingh Pourashava, Mymensingh Vs. Kasimonnessa Bewa and others, 17 BLT (AD) (2009) 206

Case No: Civil Petition for leave to Appeal No. 631 of 2008

Judge: Md. Abdul Aziz,

Court: Appellate Division ,,

Citation: 17 BLT (AD) (2009) 206

Case Year: 2009

Appellant: Chairman, Mymensingh Pourashava, Mymensingh

Respondent: Kasimonnessa Bewa and others

Subject: Procedural Law,

Delivery Date: 2009-3-11

 
Supreme Court
Appellate Division
(Civil)
 
Present:
MM Ruhul Amin CJ
Md. Tafazzul Islam J
Md. Abdul Matin J
Md. Abdul Aziz J
 
Chairman, Mymensingh Pourashava, Mymensingh
………………....Petitioner
Vs.
Kasimonnessa Bewa and others
.……………......Respondents
 
Judgment
March 11, 2009
 
Code of Civil Procedure (V of 1908)
Order IX Rule 13
An ex-parte decree can be set aside under Rule 13 Order 9 of the Code of Civil Procedure if it is found that the notice upon the defendant was not properly served. But in the instant case, it appears that the summons was duly served in the office of the Pourashava and the peon of the Pourashava received the same and his name and address was noted in the original summon. Trial Court also found that the Process Server while deposing as P.W. 2 admitted the same. It was also stated in the application filed under Order 9 Rule 13 of the Code by the petitioner that office peon of the Pourashava is appointed only to receive postal documents and summons on behalf of the Pourashava. Evidence shows he received the same on 15.06.1983 and it to the concerned authority. — Whether the suit is maintainable or not due to non complying the mandatory provision of section 152 of the pourashava Ordinance, 1977 is a matter relating to maintainability of the suit itself and deserves no consideration in disposing either the application  filed under Order 9 Rule 13 of the Code of Civil Procedure or the instant petition. ….. (8 & 9)
 
Lawyers Involved:
Md. Omar Ali Khan, Advocate (Appeared with the leave of the Court), instructed by Nurul Islam, Advocate-on-Record- For the Petitioner.
Not represented- The Respondents.
 
Civil Petition for leave to Appeal No. 631 of 2008.
 
JUDGMENT
 
Md. Abdul Aziz J.
 
This petition for leave to appeal is directed against the judgment and order dated 31.10.2007 passed by a Single Bench of the High Court Division in Civil Revision No. 3851 of 2000 making the rule absolute arising out of judgment and order dated 14.062000 passed by the learned Additional District Judge, 4th Court, Mymensingh in Miscellaneous Appeal No. 24 of 1997 reversing those of dated 30.10.1996 passed by the learned subordinate Judge (now Joint District Judge), 1st Court, Mymensingh in Miscellaneous Case No. 123 of 1993 dismissing the same.
 
2. Facts of the case, in short, are that, the predecessor of the plaintiff-respondent instituted Title Suit No. 71 of 1983 before the learned Subordinate Judge (now Joint District Judge), 1st Court. Mymensingh for partition and declaration of title and recovery of khas possession of the suit land described in the schedule of the plaint against the respondents and after filing the suit summons were duly served upon the defendants and defendant Nos. 55 and 56 appeared with Vokalthnama and contested the suit by filing written statement and defendant Nos.1-15 and 30 appeared with Vokalathnama and contested the suit by filing an application for separate ‘Saham' and thereafter the defendant Nos. 30 and 55 (Ka)-55(Uma)-56 amicably settled the matter out of Court and filed a Solenama for ‘Saham' and the learned trial Court accordingly passed a preliminary decree and the said Solenama was treated as a part of final decree by his judgment and decree dated 05.05.1993 and 18-05-1993 respectively.
 
3. Defendant-petitioner No. 54 as petitioner filed an application under Order 9 rule 13 of the Code of the Code of Civil Procedure registered  Miscellaneous  Case  No. 123 of 1993 on 04.08.1993 against the said judgment and decree passed ex parte against him before the trial Court stating, inter alia, that the summons of the suit  was not lawfully served upon him and the plaintiff obtained the decree ex parte against him in collusion with some staff of the Pourashava showing the summon duly served upon him and in collusion with the defendant Nos. 30, 55(ka) to 55 (Uma) and 56 filing a solenama before the trial Court. His further case is that one Mir Hasan Abdullah Shoyeb tenant of the Pourashava came to know about the ex parte decree and on his information he took the certified copy of the same through his learned Advocate and filed the case.
 
4. The plaintiff-respondents opposed the case by filing written objections denying the allegations brought in the application contending, inter alia, that summons was duly served upon the defendant-petitioner through Process Server, etc.
 
5. Trial Court dismissed the case on consideration of evidence of the witnesses examined by both the parties and materials on record. Being aggrieved, the defendant-petitioner preferred Miscellaneous Appeal No. 24 of 1997 before the leaned District Judge, Mymensingh. The learned Additional District Judge, 4th Court, Mymensingh on transfer heard and allowed the appeal on contest reversing the judgment and order of the trial court. Plaintiff-respondent Nos.1-16 moved the High Court Division in Civil Revision No. 3851 against the same and the learned Single Judge of the High Court Division by his judgment and order made the Rule absolute setting aside the judgment and order passed by the appellate Court below. Hence this petition for leave to appeal at the instance of the defendant-petitioner No. 54.
 
6. Mr. Md. Omar Ali Khan, the learned Advocate (appeared with the leave of the Court) for the petitioner assailed the impugned judgment and order on the ground that the High Court Division misread. Misconceived and misinterpreted the facts and circumstances of the case and evidence on record and has committed an error of law resulting in an error in decision occasioning failure of justice and as such the impugned judgment and order is not tenable in the eye of law. He further submits that the plaintiff did not comply the mandatory provision of Section 152 of the Pourashava Ordinance, 1977 in filing the suit against the Pourashava without serving notice there under, but the High Court Division failed to consider the same and thereby committed an error of law. He also submits that the high Court Division failed to consider that the lower appellate Court correctly found that the summons were not duly served upon the defendant-petitioner in allowing the appeal and has thus committed an error in passing he impugned judgment and order reversing he appellate Court judgment and order.
 
7. We have heard the learned Advocate for the petitioner and perused the impugned judgment and order passed by the High Court Division and also those of the Courts below.
 
5. An ex parte decree can be set aside under Rule 13 Order 9 of the Code of Civil Procedure if it is found that the notice upon the defendant was not properly served. But in the instant case, it appears that the summons was duly served in the office of the Pourashava and the peon of the Pourashava received the same and his name and address was noted in the original summon. Trial court also found that the process server while deposing as P.W.2 admitted the same. It was also stated in the application filed under Order 9 Rule 13 of the Code by the petitioner that office peon of the Pourashava is appointed only to receive postal documents and summons on behalf of the Pourashava. Evidence shows he received the same on 15.06.1983 and it to the concerned authority.
 
9. In due consideration of the above, trial Court rejected the Miscellaneous case but the appellate Court below on erroneous view set aside the order of the trial court allowing the appeal which has rightly reversed by the High Court Division on positive finding to the above effect on proper consideration of the evidence. Whether the suit is maintainable or not due to non complying the mandatory provision of section 152 of the Pourashava Ordinance, 1977 is a matter relating to maintainability of the suit itself and deserves no consideration in disposing either the application filed under Order 9 Rule 13 of the code of Civil Procedure or the instant petition.
 
10. We have considered the submissions of the learned Advocate for the petition but find no substance. The leave-petition is accordingly dismissed having no merit.
 
Ed.