Khairullah (Md) Vs. ADC (Revenue) and another, 54 DLR (AD) (2002) 13

Case No: Civil Petition for Leave to Appeal No. 852 of 1997

Judge: Mahmudul Amin Choudhury,

Court: Appellate Division ,,

Advocate: Mr. Md. Zahedul Bari,,

Citation: 54 DLR (AD) (2002) 13

Case Year: 2002

Appellant: Khairullah (Md)

Respondent: ADC (Revenue) and another

Subject: Limitation, Procedural Law,

Delivery Date: 2001-05-24

 
Supreme Court  
Appellate Division  
(Civil)  
 
Present:
Mahmudul Amin Choudhury, CJ.
Mainur Reza Chowdhury, J.
Md. Ruhul Amin, J.
Md. Fazlul Karim, J.
 
Khairullah (Md)
………………….Petitioner  
Vs.  
ADC (Revenue) and another
……..…………. Respondents
 
Judgment
May 24, 2001
 
The Limitation Act, 1908
Section 5    
Condonation of delay under section 5 of the Limitation Act is a highly discretionary matter and the High Court Division exercised the discretion in favour of the Government respondent so the Appellate Division has nothing to interfere.    
 
Lawyers Involved:  
Md. Zahedul Bari, Advocate (appeared with the leave of the Court) instructed by Md. Nawab Ali, Advocate-on-Record—For the Petitioner.
Not represented—The Respondents.  
 
Civil Petition for Leave to Appeal No. 852 of 1997.  
(From the judgment and order dated 26-6-1997 passed by the High Court Division in Civil Revision No. 06 of 1991 (Dhaka), Civil Revision No. 372 of 1989 Rangpur).
 
JUDGMENT

Mahmudul Amin Choudhury CJ.
 
This petition for leave to appeal is against judgment and order dated 26-6-1997 passed by a Single Bench of the High Court Division in Civil Revision No. 9006 of 1991 (Dhaka), Civil Revision No. 372 of 1989 (Rangpur) making the Rule absolute condoing the delay of 1302 days in filing connected Civil Revision.
 
2. The short fact leading to this petition is that the petitioner instituted Other Suit No. 193 of 1981 the court of Subordinate Judge, Thakurgaon for declaration that order dated 5-2-1979 and ancillary order dated 6-12-1979 passed by respondent No. 1 in Miscellaneous Case No. XIII-6/1977-78 is illegal, void, without jurisdiction and is of no legal effect and not binding upon the petitioner.
 
3. The learned Subordinate Judge on taking evidence by his judgment dated 12-9-1983 dismissed the suit. The petitioner then preferred Other Class Appeal No. 79 of 1983 which was subsequently re-numbered as Other Class Appeal No. 51 of 1985 of the Court of the District Judge, Thakurgaon. The learned District Judge by his judgment dated 11-8-1985 allowed the appeal and decreed the suit. Thereafter respondent No.1 preferred revisional application under section 115(1) of the Code of Civil Procedure before the High Court Division, Rangpur Bench with an application under section 5 of the Limitation Act for condonation of delay of 1302 days in preferring said application. The High Court Division then by judgment dated 26-6-1997 condoned the delay and listed the matter for hearing on the question of issuance of the Rule if any.  
 
4. Mr. Zahedul Bari, learned Advocate appearing on behalf of the petitioner, submits that the High Court Division condoned the delay against settled principle of law and thereby committed an illegality. He submits that there was apparent negligence on the face of the record in moving the High Court Division in an application under section 115 of the Code of Civil Procedure. He argued that the Government has no special status in the matter of condonation of delay and it is well settled that they should be treated equally with other public litigants. He submits that the Government respondent failed to make out a case for condonation of delay of such a long time and the explanation is not at all satisfactory.  
 
5. We have gone through the judgment of the High Court Division and it appears that the judgment in appeal was passed on 11-8-1985 and from the office of the Deputy Commissioner, Thakurgaon a letter was sent to the Deputy Attorney General, Rangpur Bench for filing a revision which was received on 17-11-1985. Thereafter the Deputy Attorney-General found certain papers missing which were sent to him along with Vokalatnama and cost on 20-11-1985. The Deputy Attorney-General again wrote for certified copy of the judgment and decree of the appellate Court and on 5-3-1986 certified copy was sent for filing revisional application but by this time the period for such a filing expired on 31-1-1986. It is the definite case of the Government-respondent that thereafter the entire file and record were misplaced and could not be traced out from the office of the Deputy Attorney-General and, as such, he could not file the revisional application. Subsequently, after transfer of Mr Hasan to Jessore Bench Sajjad Ali Chowdhury was appointed as Assistant Attorney General who wanted a fresh Vokalatnama which was sent to him on 11-7-1989 and then the revisional application was filed on 26-7-1989 with a delay of 1302 days. An application under section 5 of the Limitation Act was filed along with petition and the High Court Division by judgment dated 26-6-1997 condoned the delay.  
 
6. We have gone through the judgment of the High Court Division and it appears that the High Court Division condoned the delay holding that there was no negligence on the part of the Government-respondent but it was due to the negligent act of the then Assistant Attorney- General. The High Court Division after considering several decisions of the higher courts of the country as well as of the Indian jurisdiction found that the delay was unintentional and for no fault of the respondent-petitioner. Mr Zahedul Bari led us through the judgment of the High Court Division and tried to impress that there was an intentional delay and the Government- respondent should not be treated separately as they have no special status. But from the judgment of the High Court Division it appears that this aspect of the matter has been fully considered and it is well settled that the condonation of delay under section 5 of the Limitation Act is a highly discretionary matter and considering the facts and circumstances the High Court Division exercised the discretion in favour of the Government-respondent. In view of the aforesaid we hold that no illegality and wrong has been committed by the High Court Division in exercising the discretion.  
 
There is therefore no merit in this petition and the same is accordingly dismissed.  
 
Ed.