Mofazzel Gazi and others Vs. Abdul Hamid Gazi and others, (Soumendra Sarker, J.)

Case No: Civil Revision No. 203(con) of 2017

Judge: Soumendra Sarker, J

Court: High Court Division,

Advocate: Mr. Mahbub-Ule-Islam, Advocate with Mr. Md. Mahibullah Tanvir, Advocate, Mr. Sharder Abul Hossain, Advocate with Mrs. Tahmina Akhter, Advocate ,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Mofazzel Gazi @ Md. Mofazzel Hossain and others

Respondent: Abdul Hamid Gazi and others

Subject: Limitation Act

Delivery Date: 2019-11-26

 

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J

 

Judgment on

01.02.2018

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Mofazzel Gazi @ Md. Mofazzel Hossain and others

. . .Petitioner-Applicant

-Versus-

Abdul Hamid Gazi and others

. . .Plaintiff-Opposite party.

Limitation Act (IX of 1908)

Section 5

The limitation can be condoned, and only where it is found that the delay caused was not for the negligence of the party concerned and when it is found that the cause of delay is reasonable, bona fide and sufficient, in that case only the delay occurred can be condoned. Each day of delay is required be explained from the date of expiry of limitation, up to the date of institution of the case. Negligence, even ignorance of law is not a sufficient ground within the meaning of this section and “sufficient cause” means something beyond the control of the party. The law of limitation or section 05 there under cannot help a dormant like the present applicants. Besides, the inordinate delay which is 1,176 days, is not properly explained at all from the side of the petitioners in their application for condonation of delay. . . . (10, 11 and 12)

Mr. Mahbub-Ule-Islam, Advocate with

Mr. Md. Mahibullah Tanvir, Advocate

. . . For the petitioners

Mr. Sharder Abul Hossain, Advocate with

Mrs. Tahmina Akhter, Advocate

. . . For the opposite parties.

JUDGMENT

Soumendra Sarker, J. The Rule issued calling upon the Opposite parties No. 1(a)-1(i) and 2-6 to show cause as to why the delay of 1176 days in preferring the Civil Revision should not be condoned and/or pass such other or further order or orders as to this Court may seem fit and proper.

2.             The facts leading to the issuance of the Rule in a nutshell can be stated thus, the present applicants as petitioners filed an application for revision under section 115(1) of the Code of Civil Procedure after the expiry of 1176 days which was the delay in filing the revision application. The petitioners were the defendants to the Original Title Suit being No. 34 of 1993, which was decreed in the preliminary form by the trial court.

3.             Being aggrieved the defendants to that suit preferred a Title Appeal being No. 244 of 2006 in the court of the learned District Judge, Khulna which was allowed in part, modifying the judgment and decree passed by the trial court by the judgment and decree dated 08.10.2013.

4.             Being aggrieved by and dissatisfied with the impugned judgment and decree the defendant-petitioners preferred the Civil Revision before this court which was 1176 days time barred. For condonation of the said delay the petitioner-applicants have filed this application under section 05 of the Limitation Act and obtained the Rule with an interim order of stay. The grounds cited in the contents of this application for condonation of delay in a nutshell is such, that the impugned judgment and decree was passed by the learned appellate court on 08.10.2013 and the decree was singed on 20.10.2013 and the learned Advocate who was engaged on behalf of the petitioners, for the reason best known to him, did not communicate the petitioners about the impugned judgment and decree. The further case of the petitioners is such that a learned Advocate Commissioner who was appointed in connection of that decree, without service any notices upon the petitioners and without taking any measurement, filed his report, pursuant to which the opposite parties have obtained a final decree on 28.09.2016 and filed an Execution Case being No. 09 of 2016, but on 05.02.2017 the petitioners were informed about the judgment and decree and the Execution Case through the clerk of the engaged Advocate. Thereafter the petitioner-applicants filed an application for certified copy on 06.02.2017 which was delivered on 23.02.2017. It was the further case of the petitioners that, knowing about the judgment and decree they have communicated with their engaged lawyer who advised them to collect the certified copy of the judgment and decree. After receiving the certified copy, the petitioners went to the chamber of their lawyer who preferred the revisional application and in this way there has been delay of 1176 days and for that reason the petitioners prays for condonation of  delay.

5.             During hearing of the Rule Mr.  Mahbub-Ule-Islam, the learned Advocate along with Mr. Mahibullah Tanvir, the learned Advocate appeared on behalf of the petitioner-applicants while Mr. Sharder Abul Hossain, and  Mrs. Tahmina Akhter, the learned Advocates appeared on behalf of the opposite parties.

6.             The learned Advocates appearing on behalf of the petitioners submits that the delay occurred in filing the revisional application was beyond the control of the petitioners and the petitioners were in the dark about the judgment and decree passed by the appellate court and the Execution Case being No. 09 of 2016. The learned Advocate further submits that for the reason described in paragraph No. 02 of the application for condonation of delay, the delay of 1176 days occurred which was bona fide and reasonable. The learned Advocates lastly submits that the petitioner-applicants have got a good case on merit and there is a fair chance of success from their side in the Civil Revision.

7.             As against the aforesaid submission of the learned Advocates for the petitioners, the learned Advocates appearing on behalf of the opposite parties opposing the Rule submits that, the petitioners were very much aware of the judgment and decree passed by the learned appellate court in Title Appeal No. 244 of 2006 and in their presence the decree was passed. The learned Advocate further submits that knowing fully well about the judgment and decree passed by the learned appellate court, the petitioner-applicants remained dormant and after a long laps of 1176 days, on false allegation they have filed the application for condonation of delay, which is not bona fide and there is no sufficient cause from their side for condonation of delay under Section 05 of the Limitation Act.

8.             Considering the submission of the learned Advocates, having gone through the application for condonation of delay it transpires that, the reason cited from the side of the applicants for their delay is such, that they were in the dark about the judgment and decree passed by the  appellate court in Title Appeal No. 244 of 2006 since their engaged lawyer did not communicate the result of the appeal to them and for the 1st time, when the Execution Case being No. 09 of 2016 was started  on the basis of final decree dated 28.09.2016, the clerk of the engaged lawyer informed them about the judgment and decree on 05.02.2017 and thereafter taking advice from their engaged lawyer they filed an application for getting certified copy of the judgment and decree on 06.02.2017 and obtained the same on 23.02.2017.

9.             Consulting the relevant papers I find that the Title Appeal being No. 244 of 2006 was filed by the present-petitioners and the learned appellate court after hearing from both the sides passed the impugned judgment and decree on 08.10.2013. It further appears from the connected papers that the learned lawyer who was engaged on behalf of the petitioners was one  Mr. Abdul Hamid Gazi and it appears from the application for condonation of delay that the petitioners knowing about the judgment and decree communicated with Mr. Mahabubul Islam, the learned Advocate who allegedly advised them to collect the certified copy of the judgment and decree.

10.         It is to be remembered that, under Section 05 of the Limitation Act, 1908 in some special cases, the limitation can be condoned, and  only where it is found that the delay caused was not for the negligence of the party concerned and when it is found that the cause of delay is reasonable, bona fide and sufficient, in that case only the delay occurred can be condoned. In the case of Abul Hossen vs. State 1 BLC (AD) 40, our Apex court held that in absence of any sufficient cause for condonation of delay the inordinate delay can not be condoned. This bench also in the case of Ms. Ok-Kyung Oh vs. Tea Hung Packaging (BD) Ltd. and Others 24 BLT (HCD) 240 held that, the negligent conduct, self-styled assumption of certain facts, ignorance of law or misapplication of law cannot form valid basis for condonation of delay.

11.         Apart from this, it is a decided matter in our judicature that each day of delay is required be explained from the date of expiry of  limitation, up to the date of institution of the case. Negligence, even ignorance of law is not a sufficient ground within the meaning of this section and “sufficient cause” means something beyond the control of the party.

12.         In the instant case, as I have come across from the facts and circumstances of the case that the reason of delay cited in the application for condonation of delay is in no way can be treated as bona fide or sufficient cause, inasmuch as; it is the petitioner-applicants who filed the Title Appeal being No. 244 of 2006 which was disposed of in their presence by the learned appellate court on 08.10.2013. The law of limitation or section 05 there under cannot help a dormant like the present applicants. Besides, the inordinate delay which is 1,176 days, is not properly explained at all from the side of the petitioners in their application for condonation of delay.



Civil Revision No. 203(con) of 2017