Hazera Khatun & others Vs. Dr. Md. Ismail Hossain & others, (Soumendra Sarker, J.)

Case No: Civil Rule No. 15(con) of 2018

Judge: Soumendra Sarker, J

Court: High Court Division,

Advocate: Mr. Md. Abdul Haque, Advocate ,

Citation: 2019(2) LNJ

Case Year: 2019

Appellant: Hazera Khatun and others

Respondent: Dr. Md. Ismail Hossain and others

Subject: Limitation Act

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J

 

 

Judgment on

17.01.2019

}

}

}

}

}

Hazera Khatun and others

. . .Defendant-Respondent -Petitioners

-Versus-

Dr. Md. Ismail Hossain and others

. . . Plaintiff-Appellant- Opposite parties.

Limitation Act (IX of 1908)

Section 5

Delay due to wrong but bona fide advice may be a good ground for condoning the delay but it ought to have given on bona fide impression. The mistaken advice given by a legal practitioner may in the circumstances of a particular case, give rise to sufficient cause within the meaning of this section 5 of the Limitation Act, provided the advice should be bona fide and without any malice. There is nothing on record to hold such a view that wrong information which was given to the applicants by their engaged Lawyer was not bona fide rather mala fide. It is also no where within the connected papers that the defendant-petitioner-applicants were negligent or that they had any willful laches in preferring the revisional application within time. Hence, the delay of 2037 in filing the civil revision which is inordinate was caused not for the laches or negligence of the petitioner-applicants, but it was due to unavoidable circumstances as alleged from the side of the petitioner-applicants in their application for condonation of delay. The law of limitation enjoys that the delay in filing the revisional application, whatever it may, can be condoned if the applicant can satisfy the court that he had sufficient cause. In the instant case, the petitioner-applicants have been able to justify their case that there were not negligent or inactive in bringing their case within time.     . . . .(8 and 11)

Mr. Md. Abdul Haque, Advocate

. . . For the petitioners

No one appears

. . . For the opposite parties

JUDGMENT

Soumendra Sarker, J. The Rule issued calling upon the opposite parties No. 1-13 to show cause as to why the delay of 2037 days in filing the revisional application should not be condoned and/or pass such other order or further order or orders as to this Court may seem fit and proper.

2.             The facts leading to the issuance of the Rule in a nutshell can be stated thus, the present opposite parties as plaintiffs instituted the original Suit for Partition being No. 229 of 1991 in the Additional Court of the learned Assistant Judge, Sadar, Mymensingh against the present Defendant-Respondent- Petitioners and the suit was decreed in the preliminary form on 30.11.1997.

3.             Being aggrieved the present opposite parties filed an appeal being Title Appeal No. 44 of 1998 in the court of the learned District Judge, Mymensingh which was transmitted to the 2nd court of the learned Additional District Judge, Mymensingh for hearing and disposal. The learned Appellate Court on hearing the appeal allowed the appeal and passed a revised preliminary decree on 05.03.2012.

4.             Being aggrieved by and dissatisfied with the impugned judgment and decree the Defendant-Petitioners have preferred a civil revision under section 115 (1) of the Code of Civil Procedure before this court, but in filing the civil revision there has been a delay of 2037 days. For condonation of the said delay, the Defendant-Respondent-Petitioners have filed an application under section 05 of the Limitation Act, 1908 and obtained this Rule.

5.             During hearing of this Rule Mr. Md. Abdul Haque the learned Advocate appeared on behalf of the petitioners, while none appears on behalf of the opposite parties. 

6.             The learned Advocate appearing on behalf of the petitioners submits that the petitioners were all along vigilant and diligent in filing the civil revision, but for the reason stated in their application for condonation of  delay, the delay occurred, which is unintentional and not for the laches or negligence of the Defendant-Respondent-Petitioners. The learned Advocate further submits that after pronouncement of the impugned judgment and decree dated 05.03.2012, the learned Advocate who was engaged on behalf of the petitioners in the Appellate Court wrongly informed the Defendant No. 20(Ka)- 20(Jha) that their application for saham has been allowed by the Appellate Court and for the said reason the Defendant-Petitioners did not feel any necessity to proceed against the judgment and decree of the Appellate Court dated 05.03.2012. The learned Advocate also submits that in the month of October, 2017 the present petitioners came to know that some of the defendants of the Partition Suit No. 229 of 1991 preferred Civil Revision No. 1207 of 2012 and 1208 of 2012 and Rule has been issued in both the civil revisions and the operation of the impugned judgment and decree dated 05.03.2017 has been stayed. The petitioners in those civil revisions not impleaded the present petitioners in their revisional applications. Thereafter the petitioners knowing about those civil revisions filed an application for addition of party in Civil Revision No. 1207 of 2012 and pursuant to that, they have been added as opposite parties No. 85-91 in that Civil Revision No. 1207 of 2012. At this stage, the learned Advocate for the petitioners going through the judgment of the Appellate Court on 28.12.2017 disclosed before the petitioners that the petitioners have been allowed a separate saham for .01625 acres of land, although the petitioners prayed for getting a separate saham to the extent of .0462 acres of land. Knowing about that, the petitioners felt aggrieved and decided to prefer a civil revision against the judgment and decree of the Appellate Court and accordingly, requested their engaged Advocate to file civil revision against the judgment and decree dated 05.03.2012. The learned Advocate lastly submits that, receiving the papers for filing of the civil revision, after drafting the revisional  application he has filed the revisional application, but meanwhile a delay of 2037 days occurred, which is unintentional  and not for the negligence of the petitioner-applicants. The learned Advocate also submits that the petitioners were wrongly informed initially by their engaged Lawyer of the appellate court that they have obtained their prayed saham and due to that wrong  information of the then Advocate of the petitioners, the petitioners could not bring the revisional application within time and thereby the cause of delay is bona fide and purely for the wrong information and misrepresentation of the learned Advocate for the petitioners, who was engaged in conducting  the appeal before the appellate court and as such the learned Advocate prays for condonation of the delay.

7.             In order to appreciate the submission advanced from the side of the learned Counsel for the petitioners, having gone through the judgment and decree passed by the trial court dated 30.11.1997 in the original Partition Suit No. 229 of 1991 along with the impugned judgment and decree passed by the Appellate Court on 05.03.2012 in other Appeal No. 44 of 1998 and the relevant papers, it transpires that, it was the  specific case of the present petitioner-applicants in their application for getting a separate saham that they are entitled a separate saham for a land measuring .0462 acres and in this context, obviously it is noticed from the impugned judgment and decree that the petitioner-applicants were allowed a separate saham for .01625 acres of land in the suit holding and these applicants were the  defendants No. 20(Ka)-20 (Jha) to the original suit. It is also the specific contention of the Petitioner-Applicants that inasmuch as, their the then engaged Lawyer wrongly informed them that the appellate court by its judgment and decree dated 05.03.2012 allowed a separate saham in favour of the present Defendant-Respondent-Petitioners according to their prayer and for that reason, the Defendants No. 20(Kha)-20(Jha) that their application for saham have been allowed by the Appellate Court, the Defendant-Respondent-Petitioners did not feel any necessity to proceed against the judgment and decree dated 05.03.2012. It was further contended from the side of the applicants in their application for condonation of delay that for the 1st time on 28.12.2017 they came to know from their engaged Lawyer that they have been allowed a less quantum of land than that of their prayed quantum of land and instead of .0462 acres of land, they were given .01625 acres of land and at that time the petitioners felt aggrieved and being dissatisfied with the judgment and decree passed by the Appellate Court, they have decided to prefer Civil Revision. It is the specific case of the petitioner-applicants that for the wrong information and misrepresentation of their earlier engaged Advocate of the Appellate Court, the petitioners could not prefer the civil revision within time and the petitioners as such were prevented by sufficient cause in not bringing the civil revision within the statutory  period of limitation.

8.             Section 05 of the law of limitation (Act IX of 1908) contemplates that, delay due to wrong but bona fide advice of the Lawyer can be treated sufficient explanation of delay. The Lawyer’s wrong advice may be a good ground for condoning the delay but it ought to have given on bona fide impression. The mistaken advice given by a legal practitioner may in the circumstances of a particular case, give rise to sufficient cause within the meaning of this section 05 of the Limitation Act, provided the advice should be bona fide  and without any malice.

9.             In the instant case, I have come across from the facts and circumstances of the case that the present applicants who are the defendants No. 20 (Kha)-20(Jha) in their application for getting a separate saham in the original partition suit prayed for .0462  acres of land in the suit holding. But in the ordering portion of the impugned judgment and decree dated 05.03.2012, the learned Additional District Judge, 2nd Court, Mymensingh allowed them only .01625 acres of land instead of .0462 acres, and in this regard it is the specific case of the present petitioners that their the then engaged Lawyer upon whom the defendant-respondent-applicants were fully dependent, inasmuch as, they are not the law knowing persons and villagers, misinformed them that they have been allowed their prayed saham and for the said reason the petitioner-applicants did not feel any necessity to proceed against the judgment and decree dated 05.03.2012. It is likely for the petitioner-appellants who are not the law  knowing persons or well conversant about the proceedings of a case, were fully dependent  upon their engaged lawyer who informed them wrongly about the judgment and decree passed by the Appellate Court after pronouncement of the judgment on 05.03.2012.

10.         The original Other Class Suit No. 229 of 1991 was a suit for partition, which was among the co-sharers of the suit holding and admittedly the petitioner-applicants were the co-sharers and they submitted their pleading’s case  in the form of written statement before the learned trial court.  The specific contention which is given from the side of the defendant-petitioner-applicants is not challenged from any corner and the plaintiffs to the original suit who are the present opposite parties did not controvert the submission advanced from the side of the petitioner-applicants, rather; they remained silent, which is a strong circumstantial  evidence in support of the bona fide of the petitioner-applicants.

11.         There is nothing on record to hold such a view that the wrong information which was given to the applicants by their engaged Lawyer was not bona fide rather mala fide. It is also no where within the connected papers that the defendant-petitioner-applicants were negligent or that they had any willful laches in preferring the revisional application within time. Hence, I find that the delay which is inordinate  was caused not for the laches or negligence of the petitioner-applicants, but it was due to unavoidable circumstances as alleged from the side of the Petitioner-applicants in their application for condonation of delay. The law of limitation enjoys that the delay in filing the revisional application,

what ever it may,  can be condoned if the applicant can satisfy the court that he had sufficient cause. In the instant case, the Petitioner-applicants have been able to justify their case that there were not negligent or inactive in bringing their case within time.

12.         Be that as it may, I am constrained to hold such a view that the cause of delay is bona fide and not for the laches or negligence of the petitioner-applicants, rather; the petitioners were due diligent in getting their relief as prayed for.

13.         Having regard to the facts, circumstances and the discussions referred to above, I am constrained to hold such a view that he rule has got substance to succeed.

14.         In the result; the Rule is made absolute without any order as to costs. The delay of 2037 days in filing the revisional application is hereby condoned.

15.         Office is directed to do the needful at once.

Ed. 


Civil Rule No. 15(con) of 2018