Government of Bangladesh Vs. Md. Jashim Uddin and another, II ADC (2005) 584

Case No: Civil Appeal No. 56 of 1996

Judge: Mohammad Abdur Rouf ,

Court: Appellate Division ,,

Advocate: Mr. B. Hossain,,

Citation: II ADC (2005) 584

Case Year: 2005

Appellant: Government of Bangladesh

Respondent: Md. Jashim Uddin and another

Subject: Procedural Law,

Delivery Date: 1997-10-27

 
Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal, CJ.
Mustafa Kamal, J.
Latifur Rahman, J.
Mohammad Abdur Rouf, J.
Bimalendu Bikash Roy Choudhury, J.
 
Government of the People's Republic of Bangladesh, repre­sented by the Deputy Commissioner, Dhaka
……………........Appellant
Vs.
Md. Jashim Uddin and another
………..…….....Respondents
 
Judgment
October 27, 1997.
 
Code of Civil Procedure (V of 1908)
Section 115
Undoubtedly the suit was transferred by the learned District Judge in his administrative capacity on an off date. It was, thus, incumbent upon the transferee court to inform the plaintiff or their Advocate of the next step to be followed. .... (12)
 
Case Referred to:
Md. Wahab & ors v. Abdul Kalam & anr. 44 DLR (AD) 13.
 
Lawyers Involved:
B. Hossain, Deputy Attorney General (M. Faruque, Dy. Attorney General with him) instructed by Mvi. Md. Wahidullah, Advocate-on-Record - For the Appellant
M.A. Wahab Miah, Advocate instructed by Md. Aftab Hossain, Advocate-on-Record - For the Respondents
 
Civil Appeal No. 56 of 1996
(From the Judgment and Order dated 10th August 1994 passed by the High Court Division in Civil Revision No. 1710 of 1992.)
 
JUDGMENT
 
Mohammad Abdur Rouf J.
 
This appeal, following leave, by the plaintiff-appellant, is from the judgment and order passed on August 10,1994 by a Single Bench of the High Court Division in Civil Revision No.1710 of 1992, making the Rule absolute and setting aside thereby the judgment and order passed on May 18,1992 by the learned Additional Assistant Judge, 3rd Court, Dhaka allowing Misc. Case No. 8 of 1991, instituted by the appellant under Order IX rule 9 C.P.C. for Restoration of Title Suit No. 19 of 1991, dismissed for default on March 30, 1991.
 
2. Defendant-respondents on March 6, 1984 got an ex parte decree in Title Suit No. 784 of 1978 against the appellant, of declaration of their title to 41 decimals of land of Plot No.459, within Mouza Meradia, Dhaka city.
 
3. The appellant then instituted Title Suit No.133 of 1990 in the Court of Assistant Judge, 2nd Court, Dhaka to have the said ex parte decree adjudged void by reason of fraud claiming the said land as the property of the Government. The respon­dents had been contesting the suit by filing a written statement denying the claim of the government-appellant. Subsequently the suit was transferred to the Court of Additional Assistant Judge, 3rd Court, Dhaka and renumbered as Title Suit No. 19 of 1991. Ultimately it was dismissed for default, mentioned earlier. The appellant then filed the aforesaid misc. Case for its restoration stating, inter alia, that the order of transfer of the suit having not been com­municated to the plaintiff, they had no knowledge of such transfer as a result the plaintiff failed to take proper step in the suit when it was called on for hearing resulting its dismissal for default.
 
4. The respondents contested the said a written objection t the plaintiff had knowledge of the order of transfer of the suit but willfully allowed to get the suit dismissed for default.
The appellant examined one witness in support of their case but the respondents did not examine any witness.
 
The learned Assistant judge allowed the Misc. Case and restored suit to its original file and number holding, inter alia, that the order of transfer, passed by the learned District Judge of title suit No. 133 of 1990 on October 27, 1990 from the Court of Assistant Judge, 2nd Court, Dhaka to the Court of Additional Assistant Judge, 3rd Court, Dhaka was not communicated to the plaintiff and thereby plaintiff suffered irreparable loss for its dismissal for default.
 
5. Against the said order of restoration of the suit the defendant respondents moved of restoration of the suit the defendant respondents moved the High Court Division under section 115 C.P.C and obtained a Rule, which has been made absolute by the impugned judgment and order holding inter alia, that the plaintiff could not prove before the trial Court that they had no knowledge of the transfer of the suit to the Court of Additional Assistant Judge, 3rd Court, Dhaka inasmuch as on March 5, 1991 the plaintiff filed hajira in the transferee Court and also took delivery the copy of the written statement filed by the defendant opposite party in Court, and as such the trial Court acted illegally in restor­ing the suit.
 
6. Leave was granted to consider the submissions made on behalf of the plaintiff petitioner Government:-
(i) that the High Court Division was misled by order dated March 5.1991 passed by the trial Court showing plaintiff's hajira in the suit although the same was in fact a hajira filed by the defendant and not by the plaintiff and thereby commit­ted an error of law in passing the impugned judgment; (ii) that the Court's order of transferring the suit from one Court to another was not communicated to the plaintiff, resulting its failure to appear in the transferee Court at the hearing of the suit and in that view of the matter the trial Court, restored the suit to its original file and number, but the High Court Division fell into an error of law in setting aside the said order of the trial Court.
 
7. Mr. B. Hossain, learned Deputy Attorney General appearing for the appel­lant, referring the certified copy of the order sheet of the suit, the copy of the hajira filed on March 5.1991. by one Md. Faruque Ahmed, Advocate on behalf of the defen­dant (annexed with the additional paper book) and the copy of defendant's vokaltnama, submits that the learned Judge of he High Court Division misdirected himself in holding that the plaintiff on March 5, 1991 had filed hajira in the suit although the said hajira had been filed by the defendant not by the plaintiff and that nothing is evident from the certified copy of the order sheet that the plaintiff ever took delivery of the copy of the written statement, filed by the defendant in Court. Mr. Hossain further sub­mits that the learned Judge of the High Court Division erred in holding that no affidavit-in-opposition was filed on behalf of the Government in the High Court Division, although the affidavit-in-opposition, sworn in August 1992 on behalf of the Government, was filed in time.
 
8. Mr. M. A. Wahab Miah, learned Advocate appearing for the defendant-respondents on the other hand submits that the Government-appellant has little to gain of restoration of the title suit in question, in view of the fact that the respondents filed Title Suit No.787 of 1978 on December 14, 1978 and ultimately after more than 5 years got the decree ex parte on March 6, 1984 against the present plaintiff-appellant, who instituted the instant suit in 1990.
 
9. The written objection, filed by the respondents in the Misc. case does not show that they specifically asserted therein that the plaintiff had filed their hajira on March 5, 1991 in the suit after its transfer from the Court of Assistant Judge, 2nd Court, Dhaka to the Court of Additional Assistant judge, 3rd Court, Dhaka and that the plaintiff also took delivery of the copy of the written statement from that transferee Court. The respondent did not examine any witness in the Misc. Case to controvert the assertions of the plaintiff, made in the trial Court on oath by P.W.1, in support of their case, that the alleged order of transfer had never been communicated to the plaintiff by the trial Court which caused plaintiff's failure to appear in the suit when it was called on for hearing and thereby it was dismissed for default.  The learned trial Judge upon assigning reasons believed the evidence of P.W.I and accordingly allowed the Misc. Case and restored the suit to his original file and number.
 
10. The learned Single Judge of the High Court Division clearly misdirected himself upon taking into consideration the unfounded order of the trial Court dated March 5, 1991, to the effect that plaintiff appeared in the suit by filing hajira and took delivery of the copy of the written state­ment , in holding that the plaintiff had the knowledge of transfer of the suit the Court of Additional Assistant Judge, 3rd Court, Dhaka and reversing the order of the trial Court although the respondent could not show before the High Court Division that the plaintiff had the knowledge of the order of transfer of the suit in question passed by the learned District Judge from the Court of Assistant Judge, 2nd Court, Dhaka to the Court of the Additional Assistant Judge, 3rd Court, Dhaka for its disposal. It appears from the certified copy of the order sheet of the suit, annexed with the additional paper book, that the learned District Judge, Dhaka by his Order No.123, dated 27.10.90 trans­ferred Suit No.133 of 1990 from the Court of Assistant Judge, 2nd the Assistant Judge 2nd Court, Dhaka to the Court of Additional Assistant Judge, 3rd Court, Dhaka. In pur­suance thereof the former Court transferred the record to the latter on 9.1.91 which was received by the transferee Court on 24.1.91 and the suit was renumbered as Title Suit No. 19 of 1991 of the Court of the Additional Assistant Judge, 3rd Court, Dhaka and 2.2.91 was fixed for written statement. On that date the plaintiff did nit file any hajira, but on the prayer of the defendant 12.2.91 was re-fixed for filing the written statement, which the defendant filed on 12.2.91 and then 20.2.91 was fixed for service of the copy of the written state­ment upon the plaintiff and then re-fixed 5.3.91 for service of the said copy. On 5.3.91 transferee Court accepted the written statement and directed the plaintiff to receive the copy of the same. But the Court wrongly recorded that the plaintiff had filed hajira and defendant did not file hajira, although the hajira had, in fact, been filed by the defendants not by the plaintiff. 13.3.91 was the date fixed for framing the issues. On that date another Judge in-charge after framing the issues fixed 19.3.91, for settling the date of hearing. On 19.3.91 nei­ther the plaintiff nor the defendant filed hajira but the Court fixed 30.3.91 the date peremptory hearing of the suit and ultimate­ly on that date the suit was dismissed for default at 3-30 p.m. for non-appearance of the plaintiff.
 
11. It appears that the plaintiff from 24.1.91 till 30.3.91 did never appear in the suit. The order sheet of the suit, thus supports the plain­tiff's case that the order of transfer of the suit from the Court of Assistant Judge, 2nd Court, Dhaka to the Court of Additional Assistant Judge, 3 Court, Dhaka was never communi­cated to the plaintiff. It also appears that after transfer the suit was renumbered as Title Suit No. 19 of 1991.
 
12. Undoubtedly the suit was transferred by the learned District Judge in his administrative capacity on an off date. It was, thus, incumbent upon the transferee Court to inform the plaintiff or their Advocate of the next step to be fol­lowed. Our view gets support from the case of Md. Wahab & ors v. Abdul Kalam & anr. 44 DLR (AD) 13, cited by Mr. B. Hussain.
 
13. The learned Judge of the High Court Division in exercise of his revisional jurisdiction under Section 115 CPC without taking into consideration of all those relevant facts, has clearly committed an error of law in setting aside the order of restoration of the suit passed by the trial Court and as such the impugned order of the High Court Division is not sustain­able in law.  
 
14. We, thus, find substance in this appeal, Accordingly it is allowed without, however, any order as to cost. The impugned Judgment of the High Court Division is set aside and the order of restoration of the suit, passed by the trial Court, is restored.
 
Ed.