Johora Bibi and others Vs. Tozammal Hossain and others, 2016(1) LNJ (AD) 14

Case No: CIVIL APPEAL No. 97 OF 2007

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Abul Kalam Mainuddin ,Mr. Abdus Salam Khan,,

Citation: 2016(1) LNJ (AD) 14

Case Year: 2016

Appellant: Johora Bibi and others

Respondent: Tozammal Hossain and others

Delivery Date: 2014-11-25

APPELLATE DIVISION
(CIVIL)
 
Syed Mahmud Hossain, J
Muhammad Imman Ali, J
 
Judgment on
25.11.2014
 
Johora Bibi and others
... Appellants
Versus
Tozammal Hossain and others
...Respondents
 
Code of Civil Procedure (V of 1908)
Order XLVII, Rule 1
The judgment and order passed by the High Court Division is most cryptic and palpably inadequate and cannot be said to be a judgment at all. No reason whatsoever has been given for allowing the application nor has the matter of delay been considered at all by the High Court Division. The provisions of the Code of Civil Procedure, High Court Rules and Civil Rules and Orders have been completely overlooked. In the circumstances we are constrained to send the matter on remand to the High Court Division for a proper judgment in accordance with law....(7)
 
For the Appellants: Mr. Abdus Salam Khan, Senior Advocate, instructed by Mr. Md. Taufique Hossain, Advocate-on-Record.
For Respondent Nos. 1-3 : Mr. Abul Kalam Mainuddin, Advocate instructed by  Mr. Md. Nawab Ali, Advocate-on-Record.
For Respondent Nos. 4-6 : Not represented.
 
CIVIL  APPEAL  No. 97 OF  2007
 
JUDGMENT
Muhammad Imman Ali, J:
 
This appeal by leave is directed against the judgement and order of the High Court Division dated 22nd of August, 2005 passed in Civil Revision No. 2102 of 1999 allowing an application for review.
 
As the appeal before us is based purely on a procedural technicality, we need not go into the merits of the original suit. Suffice it to say that the respondents No. 1-3 as plaintiffs filed Title Suit No. 355 of 1983 in the Court of Subordinate Judge, 1st Court, Dhaka for declaration that the plaintiffs are the owners in 16 annas share in the suit property by adverse possession and further declaration that the judgement and decree dated 19.01.1983 passed by the learned Subordinate Judge, 1st Court, Dhaka in Title Suit No. 131 of 1982 is null and void, collusive and fraudulent and a paper transaction and not binding upon the plaintiffs. Title Suit No. 355 of 1983 was dismissed, against which respondent No. 1 as appellant filed Title Appeal No. 13 of 1997 in the Court of District Judge, Dhaka, which upon hearing was dismissed by the Additional District Judge, 6th Court, Dhaka by judgement and decree dated 26.04.1999. Respondents No. 1 then preferred Civil Revision No. 2102 of 1999 and obtained Rule. On 12 January 2002 the Rule was discharged. An application for review was filed under Order XLVII, Rule 1 of the Code of Civil Procedure on 11.08.2005. By the impugned order the application for review was allowed summarily by a Single Bench of the High Court Division without condoning the long delay in filing the petition for review.
 
Challenging the judgement and order of the High Court Division, the appellants filed Civil Petition for Leave to Appeal No. 1366 of 2005. Upon hearing both parties leave was granted to consider whether the High Court Division erred in law in allowing the application for review of the judgement and order dated 12.01.2002 filed on 11.08.2005 without condoning such a long delay in filing the petition, and that as such his order is contrary to the provision of Rule-4, Chapter-X of the Rules of High Court Division; whether the order of review passed on 22.08.2005 without registering a separate review number as required under Rule 774 (16) of the Civil Rules and Orders was wrong; and whether the learned judge of the High Court Division was in error to review the judgement and order passed in a Civil Revision without referring to any ingredients of Order XLVII, Rule-1 of the Code of Civil Procedure.
 
Mr Abdus Salam Khan, learned Senior Advocate appearing on behalf of the appellants made submissions in line with the grounds of appeal.
 
Mr Abul Kalam Mainuddin, learned Advocate appearing on behalf of of the respondents No. 1-3 found difficulty in supporting the impugned judgement of the High Court Division.
 
We have considered the submissions of the learned Advocates appearing for the parties concerned and perused the impugned judgement and materials on record.
 
The judgement and order passed by the High Court Division is most cryptic and palpably inadequate and cannot be said to be a judgement at all. No reason whatsoever has been given for allowing the application nor has the matter of delay been considered at all by way High Court Division. The provisions of the Code of Civil Procedure, High Court Rules and Civil Rules and Orders have been completely overlooked. In the circumstances we are constrained to send the matter on remand to the High Court Division for a proper judgement in accordance with law.
 
The impugned judgement and order passed by the Single Bench of the High Court Division is hereby set aside. Let the Civil Revision No.2102 of 1999 be placed before a Bench of the High Court Division presided by an Hon’ble Judge other than the author judge of the impugned judgement so that the matter of delay in filing this Civil Revision may be considered and, thereafter, if the delay is condoned then the review petition may be dealt with on merit in accordance with law.
 
Ed.