Case No: Civil Rule No. 395 of 1999
Court: High Court Division,,
Advocate: Md. Khurshid Alam Khan,Sajjad Ali Chowdhury,,
Citation: 53 DLR (2001) 365
Case Year: 2001
Appellant: Government of Bangladesh
Respondent: Md. Jahangir Ali and Another
Subject: Limitation, Procedural Law,
Delivery Date: 2001-05-27
High Court Division
(Civil Appellate Jurisdiction)
Md. Abdus Salam J
Government of the People’s Republic of Bangladesh and others
Md. Jahangir Ali and Another
May 27, 2001.
Limitation Act (XI of 1908)
While seeking condonation, the Government officials concerned are to explain the delay for each day. In the application for condonation, a general explanation has been given without proper explanation for delay of each day. ….. (6)
Cases Referred To-
Bangladesh Vs. Jaheruddin 1986 BLD (AD) 180; Government of Bangladesh Vs. Amir Hossain Munshi and others 1 BLC 105; Province of East Pakistan Vs. Abdul Hamid Darjee 21 DLR 824; ADC (Rev) and Assistant Custodian, Vested Property, Sirajgong, Vs. Md. Abdul Majid and others 1997 BLD (AD) 57; Bangladesh Vs. Suppliers and Building Corporation 1991 BLD 194; Bangladesh Vs. Abdul Wahab 45 DLR 30 and Subash Chandra Chowdhury and others Vs. Government of Bangladesh 46 DLR 663.
Sajjad Ali Chowdhury, Assistant Attorney-General-For the Petitioners.
Md. Khurshid Alam Khan with Salauddin Talukder, Advocates—For the Opposite Party.
Civil Rule No. 395 (Con) of 1999.
Md. Abdus Salam J.
An application under section 115 of the Code of Civil Procedure was filed on 23-6-99 against the judgment and decree dated 6-8-95 and 12-8-95 respectively passed by the learned District Judge, Kurigram in Other Appeal No.1 of 1995 affirming the Judgment and decree dated 15-11-94 and 17-11-94 respectively passed by Assistant Judge, Sadar, Kurigram in Other Class Suit No.68 of 1992. When the Civil Revision was filed there was delay of 1320 days, as such the petitioner filed an application under section 5 of the Limitation Act for condonation of delay. Accordingly a Rule was issued calling upon plaintiff-respondent-opposite party to show cause as to why the delay in filing the Revisional Application should not be condoned.
2. Plaintiff opposite party appeared and filed a counter affidavit sworn on 24-5-01 to resist the condonation petition. During hearing the learned Assistant Attorney-General Mr. Sajjad Ali Chowdhury on behalf of the Government petitioner submits that the decree was signed on 12-8-95 by the District Judge, Kurigram in Other Appeal No.1 of 1995, due to office formalities, filing of the Revisional Application has been delayed by 1320 days: decree was signed on 12-8-95, application for certified copies was filed on 2-11-97, the certified copy was ready for delivery on 1-12-97; the certified copies along with necessary papers were sent to the Solicitor Wing on 2-6-98, the case was sent to the Attorney-General office on 18-8-98; after obtaining explanation of delay from the Deputy Commissioner, Kurigram, the Revisional application was prepared and the affidavit was sworn on 23-6-99. The learned Assistant Attorney-General submits that the delay of 1320 days was unintentional and bonafide and without any willful negligence of the petitioner and if delay is not condoned the petitioners will suffer irreparable injuries. In support of his arguments the learned Assistant Attorney-General cited a case law reported in 1986 BLD (AD) 180, Bangladesh Vs. Jaheruddin and 1 BLC 105 Government of Bangladesh Vs. Amir Hossain Munshi and others and submits that the Government does not enjoy any special privilege but in appropriate circumstances some consideration may be extended to the Government appearing as a litigant before the Court.
3. The learned Advocate for plaintiff opposite party Mr. Md. Khurshid Alam Khan argued refuting all the points mentioned in the application under section 5 of the Limitation Act and in support of the counter affidavit dated 24-5-2001 submits that the learned District Judge signed the decree on 12-8-95 and the defendant appellant petitioner filed application for certified copies on 2-11-97 after more than two years when the civil revision was barred by limitation and after different correspondence the papers were sent to the Solicitor on 2-6-98 and the revisional application was prepared with affidavit on 23rd June, 1999 and in the meantime an inordinate delay of 1320 days took place; he submitted that the explanation given by the petitioner is vague, the negligence and laches on the part of the inefficient Government officials do not come within the purview of sufficient explanation for condonation of delay. Moreover, a primary school teacher to the decree in the trial Court for absorbing him in the service as a primary teacher after rendering service for a few years and the learned District Judge, Kurigram concurrent findings and decisions in favour of the plaintiff opposite parties and if the plaintiff opposite-party is allowed to be absorbed in Government service as a primary school teacher, the Government and the Government official and the petitioners are not likely to suffer any irreparable loss. In support of his arguments the learned Counsel for the plaintiff-opposite party cited a case law report in 21 DLR 824, Province of East Pakistan Vs. Abdul Hamid Darjee and submits that law does not make any discrimination between the Government and a private litigant, in respect of condign the delay Negligence of an agent or a servant of the Government is not a sufficient cause to condone the delay. He also cited another case law reported in 1997 BLD (AD), 57 Additional Deputy commissioner (Rev.) and Assistant Custodian, Vested Property, Sirajgong Vs. Md. Abdul Majid and other and submits that long practice has been continued over a decade for filing Civil Revision under section 115 of the Code of Civil Procedure which requires that a Revisional application is to be filed within a period of 90 days and he submits with full force that it is not a fit case for condonation of delay and the petition under section 5 of the Limitation Act is liable to be rejected.
4. I have examined the records and the petition under section 5 of the Limitation Act. The Senior Assistant Judge, Sadar, Kurigram delivered the lengthy judgment in favour of the plaintiff opposite party with certain adverse remarks against the authority concerned for playing foul in the matter with a motive. The learned District Judge, Kungram discussed the evidence in full and the law points involved therein and delivered a lengthy judgment affirming the Judgment and decree passed by the trial Court. From the judgments and papers it appear that South Nowdabash Primary School though started in 1975 it got institutional shape in 1980, a Managing Committee was formed in 1980 and Mr. Habibur Rahman was appointed Headmaster, Mr. Abu Bakkar Siddique, was appointed an Assistant teacher, A Samad was appointed as Assistant teacher in 1982; Anjuman Ara was appointed as teacher in 1983. Mr. A Samad abstained from attending the school from 29-10-85, he got himself into Fulbaria College and after issuing show cause notice he was dismissed from service on 23-1-86. Mr Jalaluddin Sardar was appointed Assistant teacher in his place but he resigned from his post on 2-9-86 and the plaintiff Md. Jahangir Ali was appointed in that post on 1-6-87 and he has been working in his post till today. The school got registration on 7-6-86, the Government declared in 1991 to Nationalise the registered Primary School and in the process of Nationalisation a Selection Committee was formed in each district and a selection committee was constituted for Kurigram district with Additional Deputy Commissioner (General) as Chairman and District Primary Education Officer as member-secretary, Principal of Government College, Kurigram, Thana Nirbahi Officer and others of the Police Station were ex-officio members. The Headmaster was permitted to enquire inspection book, other registers and necessary papers including appointment letter and joining report of 4 teachers. When dismissed teacher MA Samad came to know about the absorption process of teacher he submitted an application for his absorption. It is alleged that in the survey list the name of plaintiff was included and submitted but fraudulently the original survey list of engaged teachers was removed and photo copy was kept there including the name of Abdus Samad Bepari in place of the plaintiff. Ultimately the plaintiff submitted an application to the Deputy Commissioner Kurigram and Mr. Subrata Das, Assistant Commissioner/Magistrate was directed to enquire and report but strangely enough the enquiry report was removed or lost from the Chairman of the Selection Committee and in the resolution of the Selection Committee name of Abdul Samad Bepari was included in place of plaintiff as an engaged teacher. The plaintiff submitted complaint petition to the District General, Primary Education, to the Deputy Commissioner and to others for necessary action and ultimately the plaintiff opposite party took shelter of the Civil Court and the plaintiff obtained a contested decree in suit No. 68 of 1992. The defendants preferred Other Appeal No.1 of 1995 and the District Judge, Kurigram delivered the Judgment on 6-8-95 and the appeal was dismissed on contest and the judgment and decree passed by the trial Court were upheld. The trial Court indicated in the judgment that if there is no vacant post in South Nowdabash Primary School, the Plaintiff opposite party may be posted at any other Primary School after absorbing him in the Primary School service. The Government of Bangladesh represented by the Deputy Commissioner, Kurigram and other defendant petitioner decided to file the Civil Revision after a delay which already took place for 1320 days.
5. According to the case law reported in 21 DLR 824 the then East Pakistan Government Vs. Abdul Hamid Darjee law does not make any discrimination between the Government and Private litigant in the matter of condoning the delay, negligence of an agent or a servant of Government is not a sufficient cause to condone the delay. In the instant case application for certified copy was submitted on 22-11-97 after mote than 2 years when the Revision already became time- barred. Liability should be fixed at this stage who is responsible for this delay in filing the application for certified copy of the judgment and decree passed by the District Judge, Kurigram. The view taken in the case law reported in 21 DLR 824 is supported by the case law reported in 1991 BLD 194 Bangladesh Vs. Suppliers and Building Corporation; 45 DLR 30, Bangladesh Vs. Abdul Wahab and 46 DLR 663 Subash Chandra Chowdhury and others Vs. Government of Bangladesh.
6. I have perused the papers available in the file and the counter-affidavit dated 24-5-01 discussed above. In my considered opinion there is no sufficient cause for condoning the delay in the application under section 5 of the Limitation Act. The Government, the Government departments and the Government officials concerned are to explain the delay for each day for condoning the delay. In the application under section 5 of the Limitation Act, a general explanation has been given without proper explanation for delay of each day.
7. If a school teacher like the plaintiff opposite party is absorbed in the primary school service after performing duty of a teacher for a few years, the defendant-petitioners including the Government are not likely to suffer any irreparable loss. It appears that some Government officers as defendants took the matter as a prestige issue and have decided to file the Civil Revision after more than 2 years. I do not find that any public interest is involved in the matter of filing this Revisional application.
8. For the aforesaid reasons the application under section 5 of the Limitation Act is rejected as not maintainable in law and the Rule is discharged without cost.
Send down a copy of this judgment to the learned District Judge, Kurigram and Deputy Commissioner, Kurigram for taking necessary action accordingly.