Md. Farhat Rahman Vs. Roomee Tareque Moudud, XV BLT (AD) (2007) 193

Case No: Civil Appeal No. 56 of 2000

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Shafique Ahmed ,Mr. AKM Shahidul Huq,,

Citation: XV BLT (AD) (2007) 193

Case Year: 2007

Appellant: Md. Farhat Rahman

Respondent: Roomee Tareque Moudud

Subject: Civil Law,

Delivery Date: 2005-5-24

 
Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin, J.
M. M. Ruhul Amin, J.
 
Md. Farhat Rahman
………………Appellant
Vs.
Roomee Tareque Moudud
…………..Respondent
 
Judgment
May 24, 2005.
 
Code of Civil Procedure, 1908
Section 115(1)
In our opinion in the background of the statement made by the appellant explaining the reason or ground for his non-furnishing the certified copy of the decree of the trial Court the High Court Division would have been within its jurisdiction to consider the prayer for exempting him from furnishing the certified copy of the decree of trial court and could have very much exercise its power for the purpose of advancing the cause of justice by allowing the prayer foe exempting the appellant from filing the certified copy of the decree of the Trial Court. …………….…. (15)
 
Lawyers Involved:
Shafique Ahmed, Senior Advocate, instructed by Mrs. Sufia. Khatun, Advocate-on-Record - For the Appellant.
A.K.M. Shahidul Huq, Advocate-on-Record - For the Respondent.
 
Civil Appeal No. 56 of 2000
(From the judgment of January 18, 2000 passed by the High Court Division in Civil Revision No. 4256 of 1999).
 
JUDGMENT
 
Md. Ruhul Amin J.
 
1. This is a defendant's appeal, by leave, against the judgment of January 18, 2000 of the High Court Division as to an order of discharge of the Rule for default obtained in Civil Revision No.4256 of 1999 which was filed against the judgment and order dated November 14," 1999 of the Court of Nari-O-shishu Nirjatan Daman Bishesh Adalat, Dhaka (hereinafter in brief the Adalat) in Family court Appeal No. 56 of 1997 allowing the appeal upon reversing the judgment and order dated July 30, 1997 of the Family Court and the 4th Court of Assistant Judge, Dhaka, in Family Court Suit No.8 of 1995 dismissing the same on contest.
 
2. The suit was filed seeking custody of the minor child by his father.
 
3. The plaintiff, father of the minor filed the suit stating, inter alia, that he married the defendant (the appellant herein) on 14.2.1991 and a son was born on 27.10.1991, that his wife used to quarrel with him over trivial domestic matters, that the defendant left the house of the plaintiff in the last week of January, 1993 taking the minor child with her and went to her father's house, that the plaintiff divorced the defendant on 22.5.1993, that the Arbitration Council tried to effect a compromise between the plaintiff and the defendant but the same being not fruitful, the divorce took place in terms of compromise to the effect that plaintiff would pay Tk. 3,000/- to the defendant for the maintenance of the minor child and that Arbitration Council also made the award that the plaintiff would be allowed to meet his minor son once in a week, that for the last six months in spite of the award of the Arbitration Council plaintiff was not allowed to meet his son, that defendant being emotionally unbalanced and indifferent and as such negligent towards the physical and mental welfare of the minor son of the plaintiff and hence the minor should be given to the care and custody of the plaintiff for his welfare.
 
4. The suit was contested by the defendant. The case of the defendant amongst others was that her minor son will never get love, care and affection in the congenial and healthy atmosphere in the house of the plaintiff since the plaintiff is a low paid private service holder and unable to pay for the daily needs of the minor child and as such plaintiffs claim or the custody of the minor child merits no consideration.
 
5. The Family Court dismissed the suit upon holding that if the minor is taken away from the custody of the mother, the defendant and given to the custody of the plaintiff, the father and his parents the minor would not be able to adjust with them and that he will feel helpless for want of mother and that the minor would not get love and affection from his step mother. The Family Court allowed the plaintiff to 'meet the minor on three occasions in each two months and on other special days at the residence of Mr. Habibul Islam Bhuiya, the learned Advocate of the defendant.
 
6. The father went on appeal and the appellate Court set aside the judgment of the Family Court and the defendant was directed to give the minor to the custody of the father. Thereupon the defendant, herein the appellant, moved the High Court Division in revisional jurisdiction and obtained the Rule. It appears that revisional application was filed without furnishing decrees of the trial Court as well as of the appellate Court and in that background while issuing the Rule on 21.11.1999 the High Court Division directed the petitioner "to file the decrees of both the Courts below within 2 (two) weeks from date in   the section, in default, the Rule shall stand discharged".
 
7. The petitioner before the High Court Division applied for the certified copy of the decrees of the trial Court as well as of the appellate Court and obtained the certified copy of the decree of the appellate Court but could not obtain the decree of the Trial Court since no decree in Family Court Suit No.8 of 1995 was drawn. In due course the petitioner (in the civil Rule) filed the certified copy of the decree of the appellate Court in the office on 5.12.1999 and for exempting him from filing the decree of the trial Court he filed a petition on 6.12.1999.
 
8. The application so filed was listed for hearing on 4.1.2000 and on the prayer of the petitioner the hearing of the .application was adjourned for two weeks and thereafter the application was listed for hearing on 18.1.2000. On the said date the High Court Division rejected the application and discharged the Rule upon observing that petitioner was required to file the decrees of the courts below by 5.12.1999 but the petitioner filed the application on 6.12.1999 with the prayer for exempting him from filing the decree of the trial Court and that as the application has been filed beyond the period fixed by the Court for filing the decrees of the courts below and that decree of the court below, i.e. trial Court, having not been filed within the time fixed by the Court the Rule stood discharged since the order of the Court was of the kind which was to take effect automatically in case of default to comply with the order of the Court and that as the order of the Court has not been complied with by 5.12.1999 the application filed on 6.12.1999 for dispensing with the filing of the decree of the trial Court cannot be considered since the Court has become functus officio after 5.12.1999.
 
9. Leave was granted to consider the contention that Family court having not drawn up the decree and consequent thereupon as it was not possible to comply with the direction for filing the certified copy of the decree of the trial Court within the time allowed by the Court although with the default clause "the Rule shall stand discharged" and as such the High Court Division was in error in discharging the Rule without passing an order dispensing with the furnishing of the certified copy of the decree of the trial Court.
 
10. The appellant, who was the defendant in the Family Court, obtained the Rule as against the order of the appellate Court decreeing the suit filed by the Respondent. As it is seen that the revisional application was filed without furnishing the decree of the courts below. The High Court Division while issuing the Rule directed the defendant-petitioner herein appellant, to furnish the certified copy of the decrees of the courts below within two weeks from the date of issuance of the Rule i.e. 21.11.1990 and that in case of default "the Rule shall stand discharged".
 
11. The appellant, as seen from the judgment of the High Court Division, furnished the certified copy of the decree of the appellate Court on 5.12.1999 and filed an application on 6.12.1999 seeking exemption from filing the certified copy of the decree of the trial Court stating that he filed petition for obtaining the certified copy of the decree of the trial Court but the office had told him that no decree was drawn in Family Suit No.8 of 1995. The statement so made was not disputed by the Respondent.
 
12. The learned Advocate-on-record, who appeared in the appeal with the permission of the Court since concise statement was not filed by the Respondent, did not place any material before this Division to show that the statement made in the petition seeking exemption from filing the certified copy of the decree of the trial Court by the petitioner before the High Court Division in his application dated 6.12.1999 was not correct.
 
13. The High Court Division instead of disposing of the Rule on merit discharged the same only on the ground the appellant, petitioner before the High Court Division was required to comply with the order of the said Division directing him to furnish certified copy of the decrees of the courts below within the time specified i.e. by 5.12.1999, but he complied with the part of the order of the High Court Division by filing certified copy of the decree of the appellate Court on 5.12.1999 and thereby defaulted in the compliance of the order of the High Court Division passed at the time of issuance of the Rule. The High Court Division discharged the Rule for default on the view that because of the expression used in the order of the High Court Division the same was final one and. that on the expiry of the stipulated time the High Court Division had no power to consider the application filed on 6.12.1999 stating the fact in the background whereof the appellant was unable to comply with the order of the High Court Division.
 
14. The learned Counsel for the appellant has submitted that there was no laches or negligence on the part of the appellant to comply with the order of the High Court Division i.e. furnishing the certified copy of the decrees of the courts below but because of the undenied and undisputed fact which was beyond the control of the appellant, he could not comply with the order of the High Court Division in entirety but complied with partially and that in the background of the fact brought on record by the appellant for his failure to comply with the order of the High Court Division within the time specified, the said Division in consideration of the said fact was required to consider the prayer of the appellant and that ought to have exempted him from filing the certified copy of the decree of the trial Court. The learned Counsel for the appellant also submits that the appellant has been penalized for no fault of him since he approached the trial Court for furnishing him the certified copy of the decree but the said Court told him that the decree in a suit like the one wherein the appellant was a defendant decree was not drawn. As we have mentioned earlier that this statement of fact made by the appellant on oath was not disputed from the side of the Respondent. In the background of the facts brought on record by the appellant we are of the view that High Court Division was not without power to consider the prayer of the petitioner in the civil revision for exempting him from filing the certified copy of the decree of the trial Court.
 
15. In our opinion in the background of the statement made by the appellant explaining the reason or ground for his non-furnishing the certified copy of the decree of the trial Court the High Court Division would have been within its jurisdiction to consider the prayer for exempting him from furnishing the certified copy of the decree of trial Court and could have very much exercise  its power for the purpose of advancing the cause of justice by allowing the prayer for exempting the appellant from filing the Certified copy of the decree of the Trial Court. It is seen from the material on record that the High Court Division discharged the Rule not on merit but for default in the compliance with the order of the High Court Division which was passed at the time of issuance of the Rule on 21.11.1999.
 
16. In the background of the facts and circumstances of the case as well as for the sake of advancing the cause of justice this Division should exercise its power of doing complete justice in the matter by sending the civil revision back to the High Court Division for disposal on merit without the decree of the trial Court or in other words with decree of the appellate Court alone which has already been filed by the appellant.
 
17. In the light of our discussions made hereinabove and the view expressed by us we are of the-view that the civil revision needs be disposed of on merit by the High Court Division.
 
18. Accordingly the appeal is allowed.
 
19. The order of the High Court Division dated January 18, 2000 in Civil Revision No. 4256 of 1999 discharging the Rule for default is set aside and the Civil Revision No. 4256 of 1999 is sent back to the High Court Division for disposal on merit.
 
The custody of the child shall remain with his mother till disposal of the Rule. There is no order as to costs.
 
Ed.