M/S. Bandar Bafling Company Vs. M/s. Imam Dockyard Engineering Industries Ltd. and others, 3 LNJ (AD) (2014) 106

Case No: Civil Appeal No. 99 of 2004

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Md. S. R. Khoshnabish,Mr. M. G. Bhuiyan,,

Citation: 3 LNJ (AD) (2014) 106

Case Year: 2014

Appellant: M/S. Bandar Bafling Company

Respondent: M/s. Imam Dockyard Engineering Industries Ltd. and others

Delivery Date: 2012-07-10


APPELLATE DIVISION
(CIVIL)
 
Surendra Kumar Sinha, J
Md. Abdul Wahhab Miah, J
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J
Md. Shamsul Huda, J.


Judgment on
10.07.2012
  M/S. Bandar Bafling Company
....Appellant.
     -Versus-
M/s. Imam Dockyard Engineering Industries Ltd., represented by its Managing Director, Dhaka and others
....Respondents.
 

Code of Civil Procedure (V of 1908)
Order XLI, Rule 19
The First Miscellaneous Appeal was dismissed for non-compliance with the order dated 26.02.2003 according to the office note dated 12.03.2003 of the concerned section of the High Court Division. On 21.06.2003, Mr. Habibullah, learned Advocate for respondent-appellant, however, accepted the amount of Tk. 5000/- on furnishing proper receipt. After that, appellant-respondent No.1 filed an application for readmission of the First Miscellaneous Appeal to its original file and number after recalling the order dated 12.03.2003. A Division Bench of the High Court Division restored the appeal to its original file and number by the impugned order dated 29.06.2003. Challenging the order dated 29.06.2003, the respondent-appellant filed Civil Miscellaneous Petition No. 93 of 2003 before this Division in which leave was granted resulting in Civil Appeal No. 99 of 2004. The chronological facts discussed in the judgment show that appellant-respondent No. 1 had no laches in prosecuting the appeal. It appears that there is no substance to interfere with the impugned order. . . . (16 to 18)
 
For the Appellant : Mr. M. G. Bhuiyan, Advocate-on-Record. 
For Respondent No. 1 : Mr. S. R. Khoshnabish, Advocate-on-Record.
Respondent Nos. 2-8 : Not represented.

Civil Appeal No. 99 of 2004
 
JUDGMENT
Syed Mahmud Hossain, J:
 
This appeal by leave by the plaintiff-appellant is directed against the judgment and order dated 29.06.2003 passed by a Division Bench of the High Court Division in F.M.A. No. 180 of 1998 restoring the same to its original file and number on vacating and recalling the judgment and order dated 26.02.2003 passed by the said Bench arising out of Miscellaneous Case No. 10 of 1997 of the Court of Fourth Subordinate Judge, Dhaka.

The facts leading to the filing of this appeal are summarized below : 
On 19.03.1979, the appellant herein as the plaintiff filed Title Suit No.128 of 1979 in the Court of First Subordinate Judge (now Joint District Judge), Dhaka, which on transfer to the Fourth Court of Subordinate Judge, Dhaka was renumbered as Title Suit No.304 of 1991 praying for specific performance of contract. His case, in short, is that on 02.01.1974, he  entered into a contract by executing a ‘bainapatra’ with Kamrunnessa, defendant No.1 for purchase of 33 kathas and two chattaks of land appertaining to mouza-Bhola Shamair at present Gulshan Model Town, plot No. NE(B) 9, Road No.74, P.S. Gulshan, Dhaka, for a consideration of Tk. 6,50,000.00. He paid Tk. 5,10,000.00 as earnest money and subsequently, on 13.03.1975 also paid Tk. 1,30,000.00 but defendant No.1 did not perform her part of contract such as taking permission from RAJUK for transferring the land in favour of the appellant. Defendant No.1 also denied the existence of the aforesaid bainapatra. In the suit, the plaintiff also prayed for setting aside the ex parte judgment and decree passed in Title Suit No. 545 of 1982 in respect of the suit property and also for declaration that the above ex parte decree is not binding upon him.  On the basis of forged and fraudulent documents and by practising fraud upon the Court defendant No.8 obtained the above ex parte decree. 

Defendant Nos. 1-8 contested the suit by filing written statement denying the material statements made in the plaint. Their case, in short, is that on 04.07.1996, the suit was decreed ex parte directing defendant No.1 to execute and register the deed of sale in favour of the plaintiff in respect of the land of bainapatra within 90 days on receipt of the remaining balance amount, in default, the Court would execute and register the deed of sale. His further case was that the judgment and decree passed in favour of defendant No.8 in Title Suit No. 545 of 1982 was set aside holding that those were obtained by practicing fraud upon the Court  and it was also declared that those were not binding upon the plaintiff. In Execution Case No.11 of 1996, the Court executed and registered the deed of sale in favour of the plaintiff whereupon the plaintiff filed a petition before the RAJUK for mutation of his name and the RAJUK then mutated the said plot in the name of the plaintiff.

Defendant No.8, who is respondent No.1 in this civil petition obtained ex parte decree in the above Title Suit No. 545 of 1982. After that, he filed an application under Order IX Rule 13 of the Code of Civil Procedure before the learned Subordinate Judge, (now Joint District Judge) Fourth Court, Dhaka, praying for setting aside the above ex perte decree dated 04.07.1999 passed in the above Title Suit No. 304 of 1991 in respect of the decree of specific performance of contract though he was not a party to the bainapatra dated 02.01.1974.  The learned Subordinate Judge by judgment and order dated 03.03.1998 rejected the same.

Being aggrieved by and dissatisfied with the judgment and order of rejection dated 03.03.1998, defendant No.8 as the appellant filed F.M.A. No. 180 of 1998 before the High Court Division in which plaintiff-respondent-appellant appeared. The High Court Division by an order dated 04.01.2000 dismissed the appeal for default.

Respondent No.1 herein filed a petition for restoration of the above appeal and a Division Bench of the High Court Division by an order dated 09.02.2002 restored the said appeal on condition of payment of cost of Tk.5,000/- within a month and in default, “the appeal shall stand dismissed”. Subsequently, the date of payment was extended upto 03.04.2002 with a direction to deposit the said amount in the Account of Registrar, Supreme Court. But defendant No.8 failed to deposit Tk.5000.00 within the stipulated time. The appellant herein, in the meantime, filed an application for setting aside the above order of restoration dated 09.02.2002 because of non-payment of Tk.5000.00 within time. Upon hearing the said application, a Division Bench of the High Court Division by an order dated 18.12.2002 dismissed F.M.A. No. 180 of 1998 observing that in view of unsatisfactory conduct of appellant-respondent No.1 and for non compliance of the repeated orders of the High Court Division, the appeal be dismissed for default. Subsequently, on 26.2.2003, the High Court Division again restored the appeal to its original file and number and directed the appellant to deposit a sum of Tk.5,000.00 within 7 days.

Feeling aggrieved by and dissatisfied with the  order dated 29.06.2003 passed by the High Court Division, the plaintiff moved this Division by filing Civil Petition for Leave to Appeal No.1074 of 2003 in which this Division granted leave on 24.03.2004 resulting in the initiation of Civil Appeal No.99 of 2004.

Mr. M. G. Bhuiyan, learned Advocate-on-Record, appearing on behalf of the appellant, submits that the Fist Miscellaneous Appeal was dismissed for non- compliance of Court’s order and as such, there was no scope for restoring the First Miscellaneous Appeal to its original file and number.

Mr. S. R. Khoshnabish, learned Advocate-on-Record, appearing on behalf of respondent No.1, on the other hand, submits that the First Miscellaneous Appeal was restored to its original file and number by the order dated 29.06.2003 because respondent No.1 complied with the direction of the Court and as such, no interference is called for.

We have considered the submissions of the learned Advocates-on-Record, the impugned order restoring the First Miscellaneous Appeal to its original file and number and the materials on record.

Leave was granted to consider whether the appellant had any latches in prosecuting the First Miscellaneous Appeal before the High Court Division and whether under the facts and circumstances, the High Court Division was justified in restoring the First Miscellaneous Appeal to its original file and number.

Admittedly, the First Miscellaneous Appeal came up for hearing before a Division Bench of the High Court Division on 04.01.2000 and was dismissed for default as none appeared for the appellant. However, the learned Advocates for the respondents were present before the Court. As soon as respondent No.1 came to know about the dismissal of the appeal, he filed an application for setting aside the order of dismissal dated 04.01.2000 and prayed for restoring F.M.A. No.180 of 1998 to its original file and number. On 09.02.2002, another Division Bench of the High Court Division allowed the application with a cost of Tk. 5000/- to be paid within one month, in default, the appeal would stand dismissed. Respondent No. 1 stated to have approached Mr. Zakir Hossain, Advocate to accept the cost of Tk.5000/-. But the learned Advocate refused to accept that amount with an endorsement “I am no longer the Advocate of the respondent who is now represented by Mr. Azizul Huq, learned Advocate, retired District Judge, now attachment with Mr. Moinul Hossain, Advocate.”

The learned Advocate for respondent No.1 then approached Mr. Azizul Huq, Advocate, who was not agreeable to receive the costs. After that, respondent No.1 filed an application before the High Court Division for according him permission to deposit Tk.5000/- in the account of the Registrar of the Supreme Court. On 03.04.2002, a Division Bench of the High Court Division allowed the application. The Registrar of the Supreme Court of Bangladesh expressed his inability to accept the amount on the ground that he did not have any account to keep that money and consequently, the appellant was unable to deposit Tk.5000/- in compliance with the Court’s order.

The relevant section of the High Court Division on 09.06.2002 noted, “এমতাবস্থায় উল্লেখিত ৫০০০/- টাকা জমা দেওয়ার ব্যাপারে কি ব্যবস্থা গ্রহন করা যায় সদয় আদেশের জন্য মাননীয় দ্বৈত বেঞ্চ পেশ করা হইল”| On 15.06.2002, the matter appeared before a Division Bench of the High Court Division which passed the following order: “The office is directed to proceed henceforth in accordance with law to make the appeal ready for hearing.”

On 18.12.2002, the respondent-appellant filed an application for dismissal of the appeal for non compliance with the Court’s order. On 18.12.2002, a Division Bench of the High Court Division dismissed the appeal for non-compliance with the Court’s order. On 08.02.2003, appellant-respondent No.1 filed an application for readmission of the appeal before a Division Bench of the High Court Division. On 26.2.2003, a Division Bench of the High Court Division restored the appeal vacating the order dated 18.12.2002 and directing respondent No.1 to pay an amount of Tk. 5000/- to the learned Advocate for the contesting respondent-appellant against proper receipt within one week, in default, the appeal would stand dismissed. On 01.03.2003, respondent No.1 offered the amount of Tk.5000/- to Mr. Habibullah, learned Advocate for the respondent-appellant but he refused to accept the amount on the ground that against the order dated 26.02.2003 restoring the appeal to its original file and number, the respondent-appellant would prefer a civil petition for leave to appeal before this Division. In fact, the respondent-appellant obtained an interim order of stay from this Division on 05.03.2003 in Civil Miscellaneous Petition No. 93 of 2000 staying the operation of the order dated 26.02.2003 passed by the High Court Division restoring the First Miscellaneous Appeal to its original file and number for a period of two months and the respondent-appellant was directed to file regular leave-petition within that period failing which the order of stay would stand vacated. Because of the interim order of stay passed by this Division on 05.03.2003, appellant-respondent No. 1 declined to accept the amount of cost. What is important to note here is that respondent-appellant did not file any regular civil petition for leave to appeal according to the order of the learned Judge-in-Chamber and as such, the order of stay passed by the learned Judge-in-Chamber automatically stood vacated. 

Meanwhile, the First Miscellaneous Appeal was dismissed for non-compliance with the order dated 26.02.2003 according to the office note dated 12.03.2003 of the concerned section of the High Court Division. On 21.06.2003, Mr. Habibullah, learned Advocate for respondent-appellant, however, accepted the amount of Tk. 5000/- on furnishing proper receipt.

After that, appellant-respondent No.1 filed an application for readmission of the First Miscellaneous Appeal to its original file and number after recalling the order dated 12.03.2003. A Division Bench of the High Court Division restored the appeal to its original file and number by the impugned order dated 29.06.2003. Challenging the order dated 29.06.2003, the respondent-appellant filed Civil Miscellaneous Petition No. 93 of 2003 before this Division in which leave was granted resulting in Civil Appeal No. 99 of 2004.    

The chronological facts discussed before show that appellant-respondent No.1 had no laches in prosecuting the appeal. In the light of the finding made before, we do not find any substance to interfere with the impugned order.

Accordingly, the appeal is dismissed without any order as to costs. 

Ed.