Md. Ojiullah Vs. Md. Rafiqul Alam and others, 1 LNJ (2012) 614

Case No: First Miscellaneous Appeal No. 107 of 2009

Judge: Sheikh Abdul Awal,

Court: High Court Division,,

Advocate: Mr. Khair Ezaz Maswood ,,

Citation: 1 LNJ (2012) 614

Case Year: 2012

Appellant: Md. Ojiullah

Respondent: Md. Rafiqul Alam and others

Subject: Limitation,

Delivery Date: 2012-07-26

HIGH COURT DIVISION
(Civil Appellate Jurisdiction)
 
Sheikh Abdul Awal, J.

Judgment
26.7.2012
  Md. Ojiullah
...Petitioner-appellant
Vs.
Md. Rafiqul Alam and others.
... Opposite party-respondents. 
 
Code of Civil Procedure (V of 1908)
Order XLI, rule 21
Limitation Act (IX of 1908)
Articles 169 and 181
An application for re-hearing of an appeal decided ex-parte from an order, Article 181 of the Limitation Act is applied and not the Article 169. The Miscellaneous case is not barred by Limitation as it was filed well within a period of 3(three) years.      
 
To meet the main submission of Mr. Khair Ezaz Maswood, the learned Advocate for the petitioner that in view of provision of  Article 181 of the Limitation Act  the present Misc. Case was not barred by limitation,  I  have carefully examined the provisions of  Articles 169 and 181 of the Limitation Act and find Article 169 applies only when there is a decree and not an ex-parte order and Article 181  applies  in the case of an application for re-hearing of an appeal decided ex-parte from an order.…(10)

In the case of Noor Muhammad Vs RC Karachi reported in PLD 1959 (Karachi) 19,  it has been  held that as the wording of Article 169 shows that it can  apply only where one has a decree, the proper Article to apply, in the case of an application for re-hearing of an appeal decided ex parte from an order refusing an interim injunction is the residuary Article 181 and not Article 169, and an application for re-hearing presented within 3 years of the ex parte order is in time.…(11)

In this case, I have already noticed that the appellant filed Misc. Case under Order XLI, rule 21 of the Code of Civil Procedure for re-hearing of an appeal decided ex-parte from an order.  So, in the given facts and circumstances of the case and the decision of the highest Court as cited above,  I have no hesitation to hold that the instant Misc. case is  not barred by limitation inasmuch as the same  was filed well with in a period of 3 years.…(12)
 
Noor Muhammad Vs. RC Karachi, PLD 1959 (Karachi) 19 ref.
 
Mr. Khair Ezaz Maswood
....For the appellant
Mr. Md. Aktaruzzamn with
Mr. Md. Yousuf Ali
....For the respondents
 
First Miscellaneous Appeal No. 107 of 2009
 
JUDGMENT
Sheikh Abdul Awal, J:
 
          This appeal at the instance of petitioner-appellant is directed against the judgment and order dated 23.02.2009 passed by the learned Joint District Judge, 2nd Court (in-charge), Lakshmipur in Miscellaneous Case No.13 of 2006 under Order XLI, Rule 21 of the Code of Civil Procedure rejecting the application for re-hearing of the Miscellaneous Appeal No.14 of 1999.
 
2.     The brief fact relevant for disposal of this appeal is that the present respondents as pre-emptor filed Miscellaneous Case No.28 of 1997 in the Court of Assistant Judge, Raipur, Lakshmipur under section 96 of the State Acquisition and Tenancy Act for pre-empting 1½ decimals of land. Ultimately, the said pre-emption case was disallowed on contest by judgment and order dated 21.6.1999. The pre-emptor, thereafter, preferred Miscellaneous Appeal No.14 of 1999 in the Court of District Judge, Lakshmipur. Subsequently, the said appeal was transmitted to the Court of Joint District Judge, 2nd Court, Lakshmipur for disposal. The learned Joint District Judge, Lakshmipur however  allowed the said appeal by ex-parte judgment and order dated 23.3.2002. Thereafter, the present appellant as petitioner filed an application under Order XLI, Rule 21 of the Code for re-hearing of the said appeal, which was registered as Miscellaneous Case No.13 of 2006. The learned Joint District Judge upon hearing the parties by the impugned judgment and order dated 23.02.2009 rejected the miscellaneous case holding that the petitioner could not satisfactorily explain the delay of 5(five) months.
 
3.     Being aggrieved by the aforesaid judgment and order dated 23.02.2009 passed by the learned Joint District Judge, 2nd Court (in-charge), Lakshmipur in Miscellaneous Case 13 of 2006 the present appellant preferred this appeal.
 
4.     Mr. Khair Ezaz Maswood, the learned Advocate appearing for the petitioner-appellant submits that the learned Joint District Judge had a misconception of law as to the provisions  of Article 189 and 181 of the Limitation Act committed an error of law in coming to a finding that the  Miscellaneous Case No.13 of 2006 under Order XLI, Rule 21 for re-hearing of the appeal is barred by law of limitation. He further submits that the Joint District Judge having failed to consider that the appellant-petitioner was admitted in C.M.H. Commilla on 16.3.2006 and he was released from the Hospital on 8.4.2006 and thus the appellant was prevented by sufficient cause from appearing when the appeal was called on for hearing on 16.03.2006 and as such, the impugned judgment and order is liable to be set-aside.
 
5.     Mr. Md. Aktaruzzaman, the learned Advocate appearing for the respondent Nos.1-2 and 7,  on the other hand, upon referring to the provisions of Order XLI,  Rule 21A of the Code of Civil Procedure submits that  after the provisions of amended Rule 21A came into force  the appellant is not entitled to get benefit of Limitation Act.
 
6.     I have heard the learned Advocates for both the sides, perused the Memorandum of appeal and other materials on record.
 
7.     On perusal of the record, it is found that the appellant was admitted in C.M.H. Commilla on 16.3.2006 for treatment and he was released from the Hospital on 8.4.2006 and the appeal was called on for hearing on 16.03.2006. The learned Joint District Judge, 2nd court, Lakshmipur rejected the Misc. Case  on the findings that after discharging from hospital the appellant filed miscellaneous case long lapse of  5(five) months and he could not explain the delay of 5(five) months satisfactorily.
 
8.     To justify the impugned judgment of the learned Joint District Judge, I like to quote hereunder the material portion of the application for re-hearing which reads as follows:
 
"................ অত্র আপীল মোকদ্দমায় ও রীতিমত তদবীর করিয়াছেন। কোন সময় তদবীরের ত্রুটি করেন নাই। আপীল্যান্টপক্ষ বিগত  ১৩/০৯/০৫ ইং তারিখে বুকের ব্যাথায় আক্রান্ত হইয়া ডাঃ ফয়েজ ভুঞার চিকিৎসাধীন ছিলেন। পরে সম্মিলিত সামরিক হাসপাতাল কুমিল্লা, ভর্তি হন। সেই হইতে তিনি ঐ হাসপাতালে চিকিৎসাধীন ছিলেন। ২৯/৮/০৬ ইং তারিখে কিছুটা সুস্থ হইয়া হাসপাতাল হইতে রিলিজ হইয়া ৩০/০৮/০৬ ইং তাং লক্ষ্মীপুর তাহার নিযুক্তীয় আহনজীবি সহকারী আনোয়ার হোসেনের নিকট আসিয়া জানতে পারে যে, তাহার মোকর্দ্দমা বাজে আপীল ১৪/১৯৯৯ইং বিগত ১৬/৩/০৬ইং তারিখে এক তরফা শুনানী হইয়া ২৩/৩/০৬ইং তারিখে রায় প্রচার করা হইয়াছে।
প্রার্থী ২৮/৯/০৫ইং তারিখে লক্ষ্মীপুর আসিয়া তাহার নিযুক্তীয় আহনজীবি সহকারী ও সহকারী আহনজীবিকে খরচ না দেওয়ায় তাহারা মোর্দ্দমার কোন তদবীর করেন নাই................"
 
9.     From the above, it appears that the appellant was not aware about the exparte judgment and order as he was under treatment in C.M.H., Comilla and he was not informed about the exparte judgment dated 23.03.2006 by his lawyer or lawyer’s clerk and as such,  the delay of 136 days has been caused in filing the miscellaneous case. I, therefore, find there is a good deal of substance in the contentions raised by  Mr. Khair Ezaz Maswood that the appellant was prevented by sufficient cause from appearing before the Court when the appeal was called on for hearing on 16.03.2006. 
 
10.   To meet the main submission of Mr. Khair Ezaz Maswood, the learned Advocate for the petitioner that in view of provision of  Article 181 of the Limitation Act  the present Misc. Case was not barred by limitation,  I  have carefully examined the provisions of  Article 169 and 181 of the Limitation Act and find Article 169 applies only when there is a decree and not an ex-parte order and Article 181  applies  in           the case of an application for re-hearing of an appeal decided ex-parte from an order.
 
11.   In the case of Noor Muhammad Vs RC Karachi reported in PLD 1959 (Karachi) 19,  it has been  held that as the wording of Article 169 shows that it can  apply only where one has a decree, the proper Article to apply, in the case of an application for re-hearing of an appeal decided ex-parte from an order refusing an interim injunction is the residuary Article 181 and not Article 169, and an application for re-hearing presented within 3 years of the ex parte order is in time.
 
12.   In this case, I have already noticed that the appellant filed Misc. Case under Order XLI, rule 21 of the Code of Civil Procedure for re-hearing of an appeal decided ex-parte from an order.   So, in the given facts and circumstances of the case and the decision of the highest Court as cited above,  I have no hesitation to hold that the instant Misc. case is  not barred by limitation inasmuch as the same  was filed well with in a period of 3 years.
 
13.   The plea as canvassed by the learned Advocate for the respondents that after the  amended Rule 21A came into force the appellant is not entitled to get benefit of the Limitation Act is plainly misconceived in the facts and circumstances of the case.
 
14.   In the facts of the case and for the reasons stated above, I am clearly of the opinion that the learned Joint District Judge  acted illegally in disallowing the Misc. Case.
 
15.   In the result, the appeal is allowed. The impugned judgment and order dated 23.02.2009 passed by the learned Joint District Judge, 2nd Court (in-charge), Lakshmipur is set-aside and Miscellaneous Case No.13 of 2006 under Order XLI, Rule 21 of the Code of Civil Procedure is allowed.  The learned Joint District Judge is directed to re-hear and dispose of the Miscellaneous Appeal No.14 of 1999 in accordance with law.

Communicate the order at once.

Ed.