Jahangir Alam (Babu) Vs. Md. Abul Hasem and others, (Md. Rezaul Hasan, J.)

Case No: Civil Revision No. 3148 of 2017

Judge: Md. Rezaul Hasan, J

Court: High Court Division,

Advocate: Mr. Gazi Md. Gias Uddin, Advocate ,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Jahangir Alam (Babu)

Respondent: Md. Abul Hasem and others

Subject: Words and Phrases Ex-parte

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Rezaul Hasan, J

 

 

Judgment on

07.11.2018

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Jahangir Alam (Babu)

. . .Petitioner

-Versus-

Md. Abul Hasem and others

...Opposite parties

Words and Phrases

Ex-parte

The fact that a case was heard ex-parte will not discharge the plaintiff from his burden to prove the case by adducing relevant and admissible evidence, as in a criminal case the prosecution is not relived from its burden of proof, simply because the accused is absent or has absconded.           . . . (3)

Words and Phrases

Functions of a Judge

Any person performing the function of a Judge, whatever be the nature of the forum, must keep in mind that the most important person in the Court is one against whom the judgment may go. Therefore, before passing a judgment or an order, the procedural law, the standard of proof required, the relevance and admissibility of the evidence, creditworthiness of the witness, that is all process to arrive at a decision should be adequately known, understood and be followed before passing a judgment or order, which are found lacking in this case.   . . .(7)

Words and Phrases

Ex-parte

In an ex-parte hearing, the Court must be satisfied that the matter can legally be taken up for ex-parte hearing and that an ex-parte hearing does not relax or exempt the onus to prove the case taken up for disposal by the Court.                                                   . . .(8)

Words and Phrases

Duties of Judges

As an executive cannot, so cannot a judge, act mechanically, nor can he perform his duty being forgetful that he is performing a very sacred functions to do justice to one who deserves. A Judge cannot take his job as if a routine, as might be thought of by a clerk. He should be aware of his dignified position held in a court of law, which is one considered as the last resort by the law abiding and peace loving people. He should not work in a haste, nor should he indulge in dillydallies. The judges, because of the very dignified and onerous nature of their offices and functions, are hard working and are committed to be just and fair. They overlook many of their personal problems because of their commitment, a huge work load on their shoulders, while they have to correct judgments and orders even during holidays and vacations, although the mass people may not be aware of this huge work load dealt with by the judges and the nature of their job.   . . . (9)

Mr. Gazi Md. Gias Uddin, Advocate

… For the petitioner

Mr. Md. Golam Rasul, Advocates

... For the opposite party Nos.1-8.

JUDGMENT

Md. Rezaul Hasan, J: Instant Rule has been issued under section 115 (4) of the Code of Civil Procedure calling upon the opposite party Nos.1-8 to show cause as to why the impugned judgment and order dated 13.07.2017, passed by the learned District Judge, Rangpur, in Civil Revision No.05 of 2017 rejecting the revision and thereby affirming the order dated 23.01.2017, passed by the learned Joint District Judge, 1st Court, Rangpur, in Miscellaneous Case No.55 of 2016 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

2.             I have heard the learned Advocate for both sides. I have seen the impugned judgment and decree dated 29.04.2003, passed in Partition Suit No.3 of 851999, that reads as follows:-

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                                AaHh,

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                Aœ ®j¡LŸj¡ ¢hh¡c£­cl ¢hl²­Ü HLalg¡ p§­œ ¢he¡ MlQ¡u ¢X¢H² quz h¡c£fr e¡x afn£m h¢ZÑa 2|77 nx S¢j h¡hc HL¢V fªbL R¡q¡­jl h¡­V¡u¡l¡l fË¡b¢jL ¢XH²£ f¡uz BS qC­a 30 ¢c­el j­dÉ EJ² S¢j A‰­e i¡N L¢lu¡ ¢c­h AeÉb¡u h¡c£f­rl B­hce Bc¡ma ®k¡­N i¡Nh¾Ve L¢lu¡ mC­a f¡¢l­hz

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(Under lining is mine)

3.             My considered opinion is that, the fact that a case was heard ex-parte will not discharge the plaintiff from his burden to prove the case by adducing relevant and admissible evidence, as in a criminal case the prosecution is not relived from its burden of proof, simply because the accused is absent or has absconded.

4.             In the above quoted judgment, one Wahab Miah has given deposition as PWs.1, who is not the plaintiff.

5.             It is also not possible to understand, in this case, as to what kind of documents Mr. Md. Abdur Razzaque Mia, the Learned Joint District Judge, Rangpur, has seen. Was it a document of title or a Khatian or a Khajna dakhila or what? He ought to have given description of the documents produced, proved and marked as exhibits and considered by him, so that the application of his judicial mind should be apparent from the judgment and order itself. He ought to have discussed about the deposition of the PW 1, to show that how much of his testimony was relevant, admissible and creditworthy, to prove the case of plaintiff. These all are essential attributes of judicial functions to be performed by a learned Judge. 

6.             There is nothing in this exparte judgment and order dated 29.04.2003 (quoted above) to show that the trial court had applied its mind in passing the said judgment and order.  It is not at all intelligible, from a careful perusal, as to whether the Court below had applied its mind to the facts and circumstances of this case and whether the learned trial judge Mr. Abdur Razzaque Mia has understood the procedural law and the law relating to evidence (another piece of procedural law).

7.             Any person performing the function of a Judge, whatever be the nature of the forum, must keep in mind that the most important person in the Court is one against whom the judgment may go. Therefore, before passing a judgment or an order, the procedural law, the standard of proof required, the relevance and admissibility of the evidence, creditworthiness of the witness, that is all process to arrive at a decision should be adequately known, understood and be followed before passing a judgment or order, which are found lacking in this case.  (emphasis added).

8.             In an ex-parte hearing, the Court must be satisfied that the matter can legally be taken up for ex-parte hearing and that an ex-parte hearing does not relax or exempt the onus to prove the case taken up for disposal by the Court.

9.             As an executive cannot, so cannot a judge, act mechanically, nor can he perform his duty being forgetful that he is performing a very sacred functions to do justice to one who deserves. A Judge cannot take his job as if a routine, as might be thought of by a clerk. He should be aware of his dignified position held in a court of law, which is one considered as the last resort by the law abiding and peace loving people. He should not work in a haste, nor should he indulge in dillydallies. The judges, because of the very dignified and onerous nature of their offices and functions, are hard working and are committed to be just and fair. They overlook many of their personal problems because of their commitment, a huge work load on their shoulders, while they have to correct judgments and orders even during holidays and vacations, although the mass people may not be aware of this huge work load dealt with by the judges and the nature of their job. 

10.         It has also been mentioned by the learned Advocate for the opposite party Nos.1-8 that, although they have right and title in some portion of the suit land mentioned in the plaint of the partition suit, however, they were not made parties to the said partition suit. For which, they have filed in Other Class Suit No.10 of 2010, before the 1st Court of Joint District Judge, Rangpur, i.e. before the same court.

11.         My attention has also been drawn to the order dated 23.01.2017, passed by the same learned Joint District Judge Mr. Shamsul Islam, in which, with reference to Order 21 Rules 100 and 101of the Code of  Civil Procedure, the court has directed the Nazir to restore possession to the opposite party Nos.1-8. But, learned Advocates for both sides had candidly admitted that, no portion of the suit property has been handed over to opposite parties Nos.1-8, as yet.

12.         I also find that in a Miscellaneous Case No.55 of 2016, (filed in Order 21, Rules 100/101  of the Code of Civil Procedure), the Joint District Judge, 1st Court, Rangpur, passed a detailed and well reasoned judgment and order dated 29.08.2016 that, "Aœ ¢jp ®j¡LŸj¡¢V fË¢afr/h¡c£-¢XH²£c¡l Hl ¢hl²­Ü ®c¡alg¡ p§­œ fË¡b£Ñf­rl Ae¤L¨­m ¢he¡ MlQ¡u j”¤l Ll¡ qCmz fË¢afr/h¡c£ ¢XH²£c¡l fr­L BN¡j£ 60(o¡V) ¢c­el j­dÉ fË¡b£Ñ/clM¡Ù¹L¡l£Ne hl¡h­l e¡¢mn£ i¨¢jl cMm ®gla ®cJu¡l SeÉ ¢e­cÑn ®cJu¡ qCmz hÉbÑa¡u fË¡b£Ñ/clM¡Ù¹L¡l£Ne Bc¡m­al j¡dÉ­j cMm h¤¢T­u ¢e­a f¡l­hez a­h naÑ b¡­L ®k, fË¡b£Ñ/clM¡Ù¹L¡l£l a¡l c¡¢Mm£u AeÉ 10/10 j¡jm¡l gm¡gm p¡­f­r EJ² f¤ex cM­ml ¢hou¢V Q¥s¡¿¹ qC­hz

Bj¡l L¢baj­a V¡CfL«a J pw­n¡¢daz'

13.         This order dated 29.08.2016 was not challenged and that has become final and conclusive. On the contrary, the petitioner has challenged the order dated 13.07.2017 passed in C.R. No.05 of 2017, whereby an order dated 23.01.2017, passed in Execution Case No.06 of 2009, has been affirmed, and very rightly, in my considered opinion.

14.         Reference to order dated 29.08.2016, simply means that the resolution of the disputes about the right, title and possession of the opposite parties Nos.1-8 will finally depend on the judgment of Other Class Suit No.10 of 2010, but the decree holders were directed to restore possession to the opposite parties Nos.1-8, within 60 (sixty) days, not after disposal of Other Class Suit No.10 of 2010.

15.         Hence, in view of the deliberation recorded above, I find no reason to interfere with the impugned order. This Rule has no merit and this petition is frivolous.

ORDER

16.          In the result, the Rule is discharged, with cost of Tk.25,000/-(twenty-five thousand) to be paid to opposite parties Nos.1-8, within 60(sixty)days of receiving the copy of this judgment and order in the Court below.

17.          The decree holder shall comply with the order of the court below to restore possession to the opposite parties Nos.1-8.

         Ed.