Md. Salamat Hossain Vs. Meherunnesha Chowdhury and others, 2 LNJ (2013) 237

Case No: Civil Revision No. 4646 of 2010

Judge: Sheikh Abdul Awal,

Court: High Court Division,,

Advocate: Muhammad Jamiruddin Sarkar ,Mr. Sk. Zulfiqur Bulbul Chowdhury,Mr. Ranabir Kumar Paul Chowdhury,,

Citation: 2 LNJ (2013) 237

Case Year: 2013

Appellant: Md. Salamat Hossain

Respondent: Meherunnesha Chowdhury and others

Subject: Parties to a suit, Ex-parte Decree,

Delivery Date: 2013-03-13

HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Sheikh Abdul Awal, J.
 
Judgment
13.03.2013
 
Md. Salamat Hossain
. . . Defendant-petitioner.
-Versus-
Mehenunnesha Chowdhury being dead her heirs: 1. Abdur Razzak Mahmud Cowdhury and others.
...Plaintiff-opposite parties.
 

Code of Civil Procedure (V of 1908)
Order IX, Rule 13
Since The petitioner was neither a party to  the suit nor any decree was passed against him for which the trial court rightly arrived  at a finding that the petitioner is a third party, who had no locus standi to file a case under Order IX, rule  13 of Code of  Civil Procedure.…(15 and 16)
 
Evident act (1 of 1872)
Section 35
No death certificate was produced even nobody mentioned in the trial Court that the defendant No. 1 Sheikh Bashir Ali died. It appears from the annual report submitted to Registrar, Joint Stock Company and Firms for the year 2005-2008 that the defendant No. 1 as existing Director and alive. No death certificate was produced even on the date of filing of instant revisional application from Khulna City Corporation or from any other authority showing that the defendant No. 1 died on 03.05.2003 and hence the plea as raised that the defendant No. 1 died on 03.05.2003 appears to be false and without any legal basis. In the alleged death certificate the address is different from the address as given in the plaint and decree in question. Sitting under revisional jurisdiction it is very difficult to rely on this type of death certificate and hence the petitioner has not been able to prove that the exparte decree was passed against a dead person.
 
Code of Civil Procedure (V of 1908)
Order XXII, Rule 4(4)
The principal defendant No. 1, Sheikh Bashir Ali after filing written statement finally did not contest the suit. Provision of Order XXII, Rule 4(4) CPC provides that the heirs of non-contesting defendant need not be substituted.
 
Mr. Mohammad Jamir Uddin Sircar with
Mr. Ranabir Kumar Paul Chowdhury, Advocates
….For the petitioner.

Mr. Sk. Zulfiqur Bulbul Chowdhury, Advocate.
….For the opposite party Nos.1-10.

Civil Revision No. 4646 of 2010
 
JUDGMENT
Sheikh Abdul Awal, J:
 
This Rule was issued calling upon the opposite party Nos.1-10 to show cause as to why the impugned judgment and order dated 26.9.2010 passed by the learned Additional District Judge, 4th Court, Chittagong in Miscellaneous Appeal No. 238 of 2009 dismissing the appeal and affirming the judgment and order dated 4.10.2009 passed by the Additional Senior Assistant Judge, 3rd Court, Sadar, Chittagong in Misc. Case No.2 of 2006 rejecting the application under Order IX, Rule 13 of the Code of Civil Procedure for restoration of Other Class Suit No.94 of 1995 decreeing the suit exparte on 3.5.2006 should not be set aside.
 
Facts necessary for the disposal of the Rule are that one Al-hajj Mahmuddunnabi Chowdhury, the  predecessor of the defendant Nos.1-10 filed Other Class Suit No. 91 of 1990 in the Court of the  Assistant Judge,  1st Court, Chittagong for ejectment of tenant and realization of outstanding rent along with compensation against the defendant Sheikh Bashir Ali ( proprietor of  M/S. Mohammadi Metal Industry) and M/S. Mohammadi Metal Industry. The suit was subsequently renumber-red on transfer in the Court of the learned  Additional Senior Assistant Judge, 3rd Court, Sadar, Chittagong as Other Class Suit No.94 of 1995. During the pendency of the suit plaintiff Mahamuddun Nabi Chowdhury died and the opposite party Nos.1-10 were substituted as plaintiffs in place of their predecessor, Mahamuddun Nabi Chowdhury.
 
The defendant Nos.1-2 entered appear-ance in the suit on 11.02.1991 and filed written statement on 19.5.1991 denying most of the allegations of the plaint contending, inter-alia, that the defendant No.1 is not a defaulter in payment of rent and the plaintiff filed the suit without serving any notice under section 106 of the Transfer of Property Act and as such the suit is liable to be dismissed. The defendant Nos. 1-2, finally did not turn to contest the suit and consequently exparte decree was passed on 3.5.2006.
 
In this background of the case the present petitioner showing himself as defendant of Other Suit No. 94 of 1995/90 of 1991 filed Miscellaneous case No. 02 of 2006 under Order IX,  Rule 13 of the Code of Civil Procedure  for setting-aside the exparte judgment and decree dated 3.5.2006 passed in Other Suit No. 94 of 1995/90 of 1991 stating that defendant Sheikh Bashir Ali converted his private enterprise Mohammadi Metal Industries into M/S. Mohammadi Metal Industries Limited in 1981 and got it registered on 06.06.1991 as per Government registration No. C-9066/905 1980-1981 and the petitioner Salamat Hossain became its Managing Director and two other Share holders named Mrs. Salma Begum and Habibur Rahman became Directors and afterwards M/S. Mahammadi Metal Industries Limited expanded the Industry by including 5 other share holders named (1) Kazi Abu Kalam (2) Mrs. Subra Das (3) Kazal Chandra Das (4) Md. Hashem (5) Abdul Hashem and after the death of Sheikh Basir Ali (Managing Director),  the petitioner Salamat Hossain purchased the shares of Mrs. Salma Begum and Md. Habibur Rahman on 28.11.2005 and thereafter, he became its Managing Director by a resolution of the general meeting of the Industry held on 20.12.2005 under section 110 of the company Act, 1994.  The proceeding of Other Class Suit No. 94 of 1995 was stayed by an order passed in Civil Revision 2231 of 1996 though after vacating said the order of stay the trial Court fixed the suit for peremptory hearing on 03.05.2006 without notifying or informing  the learned Advocate for the  defendant Nos. 1-2 and the suit was  decreed exparte virtually  against a dead man without impleading the successors of deceased defendant No. 1, Sheikh Basir Ali who died on 04.05.2003 and as such  the exparte decree is liable to be set-aside.
 
The plaintiff-opposite parties contested the Miscellaneous Case No. 02 of 2006 by filing written objection. The plaintiff-opposite parties case in short is that the petitioner Md. Salmat Hossen was never a tenant of plaintiffs, nor the petitioner paid any rent to the plaintiffs nor there was any tenancy agreement between plaintiff/s and petitioner, Md. Salamat Hossen nor the decree was passed against any dead man nor it is true that the trial of suit was resumed without informing to the learned Advocate of the principal defendants. The petitioner has no locus standi to file the miscellaneous case under Order IX, Rule 13 of the Code of Civil Procedure for setting-aside the exparte decree dated 3.5.2006 passed in Other Suit No. 94 of 1995/90 of 1991 and hence, the miscellaneous case is liable to be dismissed.
 
The trial Court by its judgment and order dated 04.10.2009 dismissed the Miscellaneous case No.02 of 2006.
 
The unsuccessful petitioner Md. Salamat Hossen then took an appeal therefrom to the Court of   learned District Judge, Chittagong  which was ultimately heard and disposed of by learned Additional District Judge, 4th  Court, Chittagong who by his judgment and order dated 26.09.2010  dismissed the appeal and affirmed the judgment of the trial Court and the instant Civil Revision is directed against that judgment and order dated 26.09.2010.
 
Mr. Mohammad Jamir Uddin Sircar, the learned Advocate appearing for the petitioner in the course of his argument after placing the judgments of both the Courts below and other materials on record submits that both the courts below having failed to consider that defendant No. 1, Sheikh Bashir Ali, who died on 4.5.2003  and  exparte decree was passed   on  3.5.2006 against deceased Sheikh Bashir Ali,  which is a nullity and thus fell into an error of law in disallowing the Misc. Case under Order IX,  Rule 13 of the Code of Civil Procedure  and the same has occasioned failure of justice. He next submits that  the proceeding of Other Class Suit No. 94 of 1995 was stayed by an order of this Court passed in Civil Revision 2231 of 1996 but after vacating the order of stay the trial Court fixed the suit for peremptory hearing on 03.05.2006 without notifying or informing  the learned Advocate for the  defendant Nos. 1-2 and in this way the suit was  decreed exparte virtually  against a dead man without substituting the successors of deceased defendant No. 1, Sheikh Basir Ali who died on 04.05.2003 and as such  at any rate the impugned exparte decree dated 3.5.2006 is liable to be set-aside.
 
Mr. Sircar further argues that both the Courts below failed to consider that the petitioner stepped into the shoes of Sheikh Bashir Ali, the Managing Director of M/S Mohammadi Metal Industries, a private enterprise after it was transformed into M/S Mohammadi Metal Industries Ltd. a public company and thereby most illegally  arrived at a finding that  the petitioner  was not a party in Other Class Suit No.94 of 1995 and the impugned exparte decree was not passed against him and as such the same has occasioned failure of justice.
 
Mr. Sk. Zulfiqur Bulbul Chowdhury, the learned Advocate appearing for the opposite party Nos.1-10, on the other hand, by filing counter affidavit supports the impugned judgments of 2 (two) Courts below and contends that both the Courts below were  perfectly justified in rejecting the petitioner's application under Order IX, Rule 13 of the Code of Civil Procedure for setting-aside exparte decree dated 3.5.2006 on the clear findings that neither the petitioner, Md. Salamat Hossain nor M/S. Mohammadi Metal Industries Ltd.  was defendant in the other suit No.94 of 1995 and  hence a third party is not entitled to file Miscellaneous Case No.02 of 2006 under Order IX,  Rule 13 of the Code of Civil Procedure  against the decree passed in Other Suit No.94 of 1995.
 
Mr. Chowdhury next submits that original Other Suit No. No. 94 of 1995/90 of 1991  was decreed agai-nst Sheikh Bashir Ali,  who was not in fact died on 04.05.2003 as alleged by the petitioner Md. Salamat Hossen inasmuch as it is apparent from the evidence of the petitioner Md. Salamat Hossain in Miscellaneous Case No. 02 of 2006 that he submitted annual report in the form of Particulars of Directors (P.D) in the year 2005-2008 to the Registrar, Joint Stock Company and Firms showing the defendant No.1,  Sheikh Bashir Ali as existing Director and alive, hence both the Courts below correctly found that the plea as raised by the petitioner that decree in question   was passed against a dead man is not true.He adds that   the petitioner Md. Salamat Hossen did neither show nor produce any death certificate even on the date of filing of the instant revisional application from Khulna City Corporation or from any other authority showing that the defendant No.1,  Sheikh Bashir Ali died on 03.05.2003 and subsequent  death certificate dated 09.06.2007 allegedly issued by Khulna City  Corporation filed by petitioner in his supplementary affidavit dated 07.02.2013 shows that the person Sk. Bashir Ali named in said death certificate dated 09.06.2007 and the defendant No.1 Sheikh Bashir Ali of Other Class Suit No. 94 of 1995 are separate two persons but the petitioner Md. Salamat Hossen for the first time at the belated stage with a view to fortify his case that  defendant No.1 Sheikh Bashir Ali of Other Class Suit No.94 of 1995 died at Khulna on 04.05.2003  produced a self manufactured death certificate  before this Court.
 
Referring to the order sheets passed in  other class suit No.94 of 1995  Mr. Zulfiqur Bulbul Chowdhury submits that the contention as raised by the learned Advocate for the petitioner that the judgment and decree was passed against a dead man is not correct inasmuch as there is nothing on record to suggest that during the pendency of the suit the legal heirs or legal representative  of defendant Nos.1 and 2 brought the matter to the notice of the Court below  that the defendant Sheikh Bashir Ali died during pendency of the suit rather the record speaks that the defendant Nos. 1 and 2 after  filing written statement willfully did not turn to contest the suit. Mr. Chowdhury finally submits that from the finding of two Courts below and other materials on record it is evident that the petitioner as a illegal occupant in order to sit over the suit land years together without any payment of any rent filed this Misc. Case under Order 9, Rule 13 of the Code of Civil Procedure with unclean and dirty hands and as such the Rule is liable to be discharged with exemplary cost.
 
I have heard the learned Advocates of both the sides, perused the impugned judgment, deposition of witnesses and other materials on record. The facts of the case have already been set out so, I need not to repeat the same again. Now, the material question for consideration is whether the Court of appeal below was  justified in affirming the finding of the trial Court below that the petitioner has no locus standi to file an application under Order IX, Rule 13 of the Code of Civil Procedure for setting-aside the exparte decree dated 3.5.2006 passed in Other Class Suit No.94 of 1995.
 
In order to resolve this dispute let me advert the evidence on record.  It appears that petitioner Md. Salamat Hossain himself was examined as PW-1, who  in his cross-examination categorically  admitted that : "মুল মামলার আরজি­তে ছালামত হো­সেন বাদী ছি­­লন না।.....মুল একতরফা ডিক্রী হওয়ার আ­­গ আমি নি­জে ওকালতনামা দস্তখত ক­রে আমি কোন উকিল নি­য়োগ করি নাই"   .....মুল মামলায় আমি ­কোন জবাব দাখিল করি নাই। .....প্রতিপক্ষগ­নের পূর্ববর্তী মাহামুদুন্নবী মুল মামলা দা­­য়র করিয়াছি­­লন বশির আলীর বিরুদ্ধে। মুল মামলার আরজী­­ত আমার বিরুদ্ধে কোন প্রতিকার চাওয়া হয়নি।.....সংশ্লিষ্ট সম­য় অামি মুল মামলায় ছিলাম না।"
 
From the above, it appears that the petitioner Md. Salamat Hossain was not a defendant in original Other suit No. 94 of 1995/90 of 1991  nor there was any name in the plaint "Salamat Hossain" as defendant and no relief was sought for against him in the plaint  and he neither filed any vokalatnama nor appointed any Advocate to contest the suit. It is found that the Court of appeal below has come to the conclusion that the petitioner has no right to call in question the legality and propriety of the exparte decree dated 3.5.2006 passed in Other Class Suit No.94 of 1995 since he was not a party in the suit and no decree was passed against him. In coming to this conclusion the said Court has observed that the trial Court below  on due consideration of the materials on record together with the case record of Other Class Suit No.94 of 1995 rightly arrived  at a finding that the petitioner, Md. Salamat Hossain is a 3rd party, who has no locus standi to file Misc. Case No. 2 of 2006  under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the exparte decree passed in Other Suit No.94 of 1995 .
 
In view of the above finding of the Court of appeal bellow arrived at after  considering the evidence on record,  I do not find any  possible reason to differ with the view taken by both the Courts below that in the facts and  circumstance of the case the petitioner has no locus standi to file Misc. Case under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the exparte decree inasmuch as the petitioner was neither a party in the suit nor any decree was passed against him in Other Suit No.94 of 1995.
 
To meet the submission of Mr. Mohammad Jamir Uddin Sircar that the judgment and decree was in fact passed against a dead man which is a nullity, I have carefully examined the record, it appears that the principal defendant Sheikh Bsashir Ali entered appearance in the suit and  filed written statement on 10.5.1991 and  lastly on 26.5.2005  after filing hajira  he did not turn to contest the suit. It further appears that during pendency of the suit no one on behalf of the contesting principal defendant No. 1, Sheikh Bsashir Ali brought to the notice of the Court that the defendant Sheikh Bashir Ali died. Moreover, the petitioner to prove that during pendency of the suit Sheikh Bashir Ali died did not produce any death certificate of Sheikh Bashir Ali in the Courts below.
 
Further, it appears from the evidence of PW-1, petitioner Md. Salamat Hossain that he submitted annual report in the form of Particulars of Directors (P.D) in the year 2005-2008 to the Registrar, Joint Stock Company and Firms showing the defendant No.1, Sheikh Bashir Ali as existing director and alive, hence the plea as raised that the defendant No.1, Sheikh Bashir Ali died on 04.05.2003 appears to be false and without any legal basis. It also appears that the petitioner did not produce any death certificate of defendant No.1 Sheikh Bashir Ali even on the date of filing of the instant revisional application from Khulna City Corporation or from any other authority showing that the defendant No.1 Sheikh Bashir Ali died on 03.05.2003. It further appears from the plaint and decree in question that the address of Sheikh Bashir Ali  had mentioned as 312/B, Love Lane, P.S. Kotwali, Chittagong but the death certificate shows the address of Sheikh Bashir Ali  is written as 328, Sher-E-Bangla Road, Khulna (Annexure-B to the supplementary affidavit dated 7.02.2013) and thus, in the facts and circumstance of the case sitting under revisional jurisdiction it is very difficult to rely upon this type of death certificate. Therefore, I do not find any reason to hold that the petitioner has been able to prove that the exparte decree was passed against a dead man.
 
Now, it remains for me to consider the last submission of Mr. Sircar that the petitioner stepped into the shoes of the original defendant Nos. 1-2 and in that view of the matter, it can not be said that the petitioner has no locus standi to file Misc. Case under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the exparte decree passed in Other Suit No.94 of 1995.
 
It appears that petitioner, Md. Salamat Hossain as PW-1 categorically admitted in his evidence to the effect that "Defendant Mohammadi Metal Industries is proprietorship firm of Sheikh Bashir Ali and the Mohammadi Metal Industries Limited is not same establishment, both are different and separate establishment.  Therefore, I am unable to see eye to eye to such submission of Mr. Mohammad Jamir Uddin Sircar that the petitioner stepped into the shoes of defendant Nos. 1-2, rather I find there is a good deal of substance in the contention raised by  Mr. Sk. Zulfiqur Bulbul Chowdhury that the petitioner is a stranger to the suit,  who has no right to file an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the exparte decree passed in Other Suit No.94 of 1995. It is on record that the principal defendant No. 1, Sheikh Bashir Ali after filing written statement finally did not contest the suit. Provision of Order XXII, Rule 4(4) CPC provides that the heirs of non contesting defendant need not be  substituted.

On perusal of the record, it appears that the proceeding of Other Class Suit No. 94 of 1995 was stayed by an order of this court passed in Civil Revision 2231 of 1996 and  after vacating the order of stay the trial Court fixed the suit for peremptory hearing on 03.05.2006 which was seen by Mr. Uma Pada Talukder, Advocate for the defendants  before the hearing of the Other Suit No.94 of 1995. So the allegation of passing decree beyond the knowledge of defendant Nos.1 and 2 is not  correct. The contentions raised for the afore-said reason are of no substance.

By now I have covered all the points raised by Mr. Mohammad Jamir Uddin Sircar.

On an analysis of the impugned judgment, it appears that the learned  Additional District Judge  examined the records of the case and arrived at a finding inter alia, that:  “এমতাবস্থায় বিজ্ঞ নিম্ন অাদালত উপস্থাপিত সাক্ষ্য প্রমান ও অপর ৯৪/৯৫ মোকদ্দমার নথি পর্যা­লাচনাক্রমে প্রার্থী/আপীলকারী অপর ৯৪/৯৫ মোকদ্দমার বিবাদীপক্ষ না হওয়ায় মিছ ২/০৬ মোকদ্দমা দা­য়ের করার আইনগত কোন অধিকার নাই ম­র্মে সিদ্ধান্ত প্রদান আইনসংগত হওয়ায় তর্কিত রায় বহাল থাক­­ব। প্রার্থী/আপীলকারীর আপীল ­­মামলার দাবী এবং মিছ ২/০৬ মোকদ্দমার মিছ দরখা­স্তের দাবী সম্পূর্ণরূপে মিথ্যা ও মনগড়া হওয়ায় অত্র মিছ আপীল মোকদ্দমায় প্রার্থীত প্রতিকার পা­বে না।”

This findings of the Court of appeal below are in fact  based on proper and correct appreciation of both law and fact. In view of provisions of law only the defendant of the suit can file Miscellaneous Case under Order 9, Rule 13 of CPC with a prayer for setting aside the exparte decree. Stranger or any 3rd party has no locus standi to institute or maintain Miscellaneous Case under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the exparte decree passed.

In view of my discussions made in the forgoing paragraphs it is by now clear that the instant Rule must fail.

In the result, the Rule is discharged without any order as to costs.  The order of stay granted earlier by this Court stands vacated.

Let a copy of this judgment along with the lower Court’s record be sent down at once.           
 
Ed.