Danish Ali and others Vs. Mrs. Sakina Bai and others, II ADC (2005) 341

Case No: Civil Appeal No. 5 of 1998

Judge: Mohammad Abdur Rouf ,

Court: Appellate Division ,,

Advocate: Mr. Ozair Farooq,,

Citation: II ADC (2005) 341

Case Year: 2005

Appellant: Danish Ali and others

Respondent: Mrs. Sakina Bai and others

Subject: Procedural Law,

Delivery Date: 1998-3-16

 
Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal CJ
Mustafa Kamal J
Mohammad Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
 
Danish Ali and others
.....................Appellants
Vs.
Mrs. Sakina Bai and others
…….............Respondents
 
Judgment
March 16, 1998.
 
 Code of Civil Procedure (V of 1908)
Section 115 (1), Order IX Rule 13, Order V Rule 3
The granting of full relief by way of disposing a revisional application summarily without issuing any Rule and behind the back of the affected opposite party is neither legal nor fair. The learned judges of the High Court Division appear to have committed a serious error of law in passing the impugned order giving the defendant respondent the full relief in a summary manner without giving any opportunity to the plaintiffs to place their case in support of the trial court’s order….. (7)
 
Lawyers Involved:
Md. Wahab Miah, Advocate instructed by Md. Sajjadul Huq, Advocate-on-Record - For the Appellant.
Md. Ozair Farooq, Advocate instructed by Md.  Nowab Ali, Advocate-on-Record - For the Respondent No. 1.
Not represented-Respondent Nos. 2-8.
 
Civil Appeal No. 5 of 1998.
(From the Judgment and Order dated 27-7-1997 passed by the High Court Division in Civil Order No. 2929 of 1997).
 
JUDGMENT
 
Mohammad Abdur Rouf J.
 
This appeal, following leave, by the plaintiffs is from the judgment and order dated 27.7.97, passed by "the High Court Division, in Civil order No. 2929 of 1997 summarily disposing of an appli­cation under section 115(1) of the Code of Civil Procedure, setting aside the order dated 6.4.97 passed by the learned Subordinate Judge, 3rd Court, Dhaka in Misc. Case No. 89 of 1987, directing defendant respondent No. 1 Mrs. Sakin Bai to appear in court personally at the time of hearing of the said case for her exami­nation in Court.
 
2. The relevant facts are that the plaintiff appellants on 31.12.86 got an ex parte decree in Title Suit No. 203 of 1984 of the Court of the Subordinate Judge 4th court, Dhaka for declara­tion of their title to the suit property, comprising of land and buildings within Dhaka City, on adverse possession. Defendant respondent No. 1 through her son Samsuddin Soleman as her con­stituted attorney instituted the aforesaid Misc Case, under Order IX Rule 13 C.P.C. for setting aside the said ex parte decree on the ground of fraud and non service of summons. In the said Misc. Case the plaintiffs on 28.1.94 filed an application seeking for a direction upon defen­dant No. 1 Sakina Bai Soleman to make her per­sonal appearance in court for her examination it was, inter alia, stated in the petition that the alleged attorney of defendant No. 1 after creat­ing a forged amukternama had falsely instituted the case and that they have received informa­tion that the said Sakina Bai is a dead person and that she died 2/3 years back. By filing a written objection on behalf of defendant No. 1 the prayer of the plaintiffs was opposed stating inter alia, that she is very much alive and has been residing abroad at present and that her son as her legally constituted attorney has been con­ducting the aforesaid Misc. Case.
 
3. Hearing both the parties the trial judge by an order dated 6.4.97 allowed the plaintiffs prayer for personal appearance of defendant No. 1 in court. Whereupon defendant No. 1 through her aforesaid attorney moved the High Court Division in revision as already noted. Division Bench of the High Court Division without issuing any Rule in the matter and in absence of the plaintiffs disposed of that revisional application by the impugned judgment and order, setting aside the order of the trial court holding inter alia, that the trial Judge upon taking an absolutely erroneous view on the Ward Commissioner's Certificate to be a death certificate of defendant No. 1 wrongly directed her to appear in person before the court.
 
4. Leave was granted to consider whether in the facts and circumstances of the case the High Court Division committed an error of law in granting full relief to the defendant respondent without issuing any Rule upon the plaintiffs and without hearing them. Secondly, whether the learned Judges of the High Court Division misunderstood and misconstrued the intent and purport of the order of the trial court which had passed the order for personal appearance of defendant No. 1 in court in consideration of conflicting claims of both sides as to the exis­tence or non existence of Sakina Bai.
 
5. It appears that the plaintiffs in support of their application produced before the trial court a certificate from a Ward commissioner of Dhaka Municipal Corporation to the effect that no person named Skina Bai Soleman wife of late Soleman had ever resided in Flat No. 3/B or in any other flat of Aminabad colony situated at 56/57 Siddeswari Road, Ramna, Dhaka.
 
6. Mr. Md. Wahab Miah, learned Advocate appearing for the plaintiff appellants submits that the learned Judges of the High Court Division acted illegally and arbitrarily in setting aside the impugned order of the trial court with­out giving any opportunity to the plaintiffs to defend the impugned order, Mr. Wahab Miah further submits that in view of the provisions of Order V Rule 3, C.P.C the trial court upon assigning proper reasons had passed the impugned order on contest, but the learned Judges of the High Court Division upon taking an erroneous view wrongly set aside  the impugned order of the trial court without even issuing any rule or hearing the plaintiffs.
 
7. The learned Advocate citing the cases of Abdul Wahhab vs. Ali Ahmed, 44 DLR (AD) 55, Abu Ahmed Abdul Hafiz Vs. MA Haque Sariji 1983 BLD (AD), 532 and Sukumar Sen vs. Gpuranga Bejoy Das, BLD 1989 (AD) 162 has rightly submitted that the granting of full relief by way of disposing a revisional applica­tion summarily without issuing any Rule and behind the back of the affected opposite party is neither legal nor fair. The learned Judges of the High Court Division appear to have committed a serious error of law in passing the impugned order giving the defendant respondent the full relief in a summary manner without giving any opportunity to the plaintiffs to place their case in support of the trial court's order.
 
8. On consideration of the disputed ques­tion raised by both the parties the trial court in the interest of a fair settlement of the issue whether defendant No. 1 Sakina Bai is dead or alive directed her attorney, who happens to be her son, to produce her in court for examina­tion. The learned Judges of the High Court Division appear to have taken an erroneous view that the trial court in passing the impugned order misconstrued the Ward Commissioner's certificate as a death certificate although noth­ing has been mentioned therein as to the death of Sakina Bai. Rule 3 Order V, C.P.C. provides that where the court sees reason to require the personal attendance either of the defendant or of the plaintiff it may so direct. The trial court upon taking into consideration the plaintiffs application for personal appearance of defendant No. 1 and the objection raised on her behalf and the alleged certifi­cate produced by the plaintiffs from a Ward Commissioner of city Corporation, Dhaka passed the impugned order in exercise of the authority vested in it under rule 3 order V. C.P.C. As such the learned Judges of the High Court Division are not at all justified in setting aside the said order of the trial court simply because the trial court made a wrong observation in the impugned order that the plaintiffs had submitted the ward commissioner's certificate dated 19.9.95 in support of the death of defendant No. 1. The High Court Division was wrong in set­ting aside the impugned order of the trial court.
 
9. Mr. Ozair Farooq, learned Advocate appear­ing for respondent No. 1 also finds it difficult to sup­port the judgment of the High Court Division.
 
Thus we find substance in this appeal. It is allowed without, however, any order as to cost. The impugned Judgment of the High Court Division is set aside and that of the trial court is restored
 
Ed.