Musammat Nahida Sultana Vs. Md. Bazlur Rahman Khan and others, 2 LNJ (2013) 146

Case No: First Miscellaneous Appeal No. 165 of 2011

Judge: Sheikh Abdul Awal,

Court: High Court Division,,

Advocate: Mr. Golam Arshad,Mr. Abdus Samad Azad,,

Citation: 2 LNJ (2013) 146

Case Year: 2013

Appellant: Musammat Nahida Sultana

Respondent: Md. Bazlur Rahman Khan and others

Delivery Date: 2012-11-14

HIGH COURT DIVISION
(CIVIL APPELLATE JURISDICTION)
 
Sheikh Abdul Awal, J.

Judgment
14.11.2012
 
 
Musammat Nahida Sultana
... Appellant.
Vs.
Md. Bazlur Rahman Khan and others.
... Respondents
 

Code of Civil Procedure (V of 1908)
Order XLI, Rule 19
It appears that the present appellant after being unsuccessful in an application under Order 41, Rule 19 of the Code of Civil Procedure for re-admission of appeal preferred the instant first miscellaneous appeal for setting-aside the judgment and order dated 28.5.2005 passed by the Joint District Judge, 2nd Court (in-charge), Gazipur in Miscellaneous Case No.6 of 2004 disallowing the Misc. case under 0rder 41, Rule 19 of the Code of Civil Procedure.
It appears that due to traffic Jam and taxi of the appellant went out of order for which the appellant could not go to court in time for taking step in her case which prevented the appellant from appearing when the appeal was called on for hearing which is the sufficient cause for re-admission of the appeal. The impugned judgment and order calls for interference. ... (21, 24, 25 and 26)

32 DLR (AD) 231, 21 DLR 353 and 7 DLR 173 ref.

Mr. Golam Arshed, Advocate
.…For the appellant.

Mr. Abdus Samad Azad, Advocate.
....For the respondent No.1.

First Miscellaneous Appeal No. 165 of 2011
 
JUDGMENT
 
This appeal is directed against the judgment and order dated 28.5.2005 passed by the learned Joint District Judge, 2nd Court (in-charge), Gazipur in Miscellaneous Case No.6 of 2004  rejecting the Misc. case  under 0rder 41, Rule 19 of the Code of Civil Procedure for re-admission of the appeal.

The relevant facts leading to the filing of the above Appeal are that the appellant as pre-emptor filed Pre-emption Miscellaneous case No. 75 of 1996 under section 96 of the State Acquisition and Tenancy Act on the allegation that the opposite party No.3 is a co-sharer by inheritance in the   case jote, who transferred the case land to opposite party Nos.1 and 2 by a so-called deed of exchange in order to defeat the right of pre-emption of the petitioner. The pre-emptor is a co-sharer of the   case holding and the pre-emptee opposite party Nos.1 and 2 are stranger to the case land. No notice of transfer was served on him, the pre-emptor needs more land and hence, the case. 

The vendor opposite parties resisted the pre-emption application by filing written statement denying most of the allegations of the pre-emption application contending, inter-alia, that they acquired the case land by way of a registered exchange deed and as such the pre-emption case is not maintainable.

At the trial both the parties led evidence to prove their respective cases and the learned Assistant Judge by his judgment and order dated 01.7.2001 dismissed the pre-emption case on contest.

The pre-emptor-petitioner, thereafter, preferred Misc. Appeal No. 34 of 2001 in the Court of District Judge, Gazipur against the said judgment and order passed by the learned Assistant Judge. Eventually, the said case was transmitted to the Court of Joint District Judge, 2nd  Court, Gazipur for disposal, who by order dated 11.01.2004 dismissed the appeal for default.

The unsuccessful, pre-emptor petitioner, thereupon filed Miscellaneous Case No.  6 of 2004 under 0rder 41, Rule 19 of the Code of Civil Procedure on 9.02.2004 for re-admission of the appeal. In the said Misc. Case 2 (two) witnesses were   examined.

The learned Joint District Judge, 2nd Court, Gazipur, however, by Order No.32 dated 28.5.2005 rejected the misc. case stating that a partition suit is pending in respect of the case land and the pre-emptor-petitioner having realized that there  is no chance to  get any  relief in the pre-emption case deliberately  did not take any step in  Misc. (pre-emption) Appeal on the date fixed  for hearing of the appeal .

Being aggrieved by the aforesaid judgment and order dated 28.5.2005 the present appellant preferred this first miscellaneous appeal.

Mr. Golam Arshed, the learned Advocate appearing for the appellant submits that the Court of appeal below without applying its judicial mind into the facts and circumstance of the case and law bearing on the subject most illegally rejected the Misc. Case under Order 41, Rule 19 of the Code of Civil Procedure. He next submits that the Court of appeal below ought to have considered that the appellant permanently resides in Dhaka,  who  on the day fixed for hearing of the appeal due to heavy traffic jam  could not reach in the Court premises at   district Gazipur from Dhaka in time for taking step of her case and thus fell into an error of law resulting in an error in the impugned decision occasioning failure of justice.

Mr. Arshed, finally submits that both the witnesses namely, PW-1 and PW-2 in their respective testimony categorically testified that due to heavy traffic jam the appellant could not reach from Dhaka to Gazipur in time for taking step of her case but  the Court of appeal below most illegally in discarding the evidence of PW-1 and PW-2 mechanically disallowed the Misc. Case under Order 41 Rule 19 of the Code of Civil Procedure.

Mr. Abdus Samad Azad, the learned Advocate appearing for the respondent No.1, on the other hand, supports the impugned judgment and order which was according to him just, correct and proper. Mr. Azad in the course of his argument upon placing supplementary affidavit dated 8.11.2012 and other materials on record submits that the instant first miscellaneous appeal is not maintainable inasmuch as the same arises from an order disallowing the Misc. case for restoration of a proceeding under section 96 of the State Acquisition and Tenancy Act, 1950 being Misc. (Pre-emption)   Appeal No. 34 of 2001. The learned Advocate in support of his argument has relied on a decision reported in   32 DL(AD) 231.

I have hared the learned Advocates for both the sides and perused the impugned judgment and other materials on record. To appreciate the submission of the learned Advocates of both the sides from a correct angle, it would be convenient for me to decide first of all the question of maintainability of the instant Miscellaneous Appeal.

It appears that unsuccessful pre-emptor petitioner  filed Misc. Appeal No. 34 of 2001 against the judgment and order dated 1.7.2001  and the learned  Joint District Judge, 2nd  Court, Gazipur by order dated 11.01.2004 dismissed the appeal for default and thereupon, pre-emptor petitioner, filed Misc. case No.  6 of 2004 under 0rder 41, Rule 19 of the Code of Civil Procedure for re-admission of the appeal on 9.02.2004 and the learned Joint District Judge, 2nd Court (in-charge), Gazipur by his judgment and order dated 28.5.2005 disallowed Misc. Case and  the instant appeal is directed against that  judgment and order dated 28.5.2005. 

Mr. Golam Arshed, the learned Advocate upon referring to the provisions of Order 43, Rule 1 of the Code of Civil Procedure submits that it is apparent from the record that the present appellant preferred Misc. Case for re-admission of Misc. appeal under Order 41, Rule 19 of the Code of Civil Procedure and as per provision of Order 43 Rule 1(t) of the Code of Civil Procedure this first miscellaneous appeal is well maintainable.

Now, certain provisions of law are required to be referred to for having a better view of the dispute in question.  Order XLIII, Rule 1 of the Code of Civil Procedure reads as follows:-
Appeals from Orders 1. An appeal shall lie from the following orders under the provisions of section 104, namely:-
..................
..................
..................
(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;
..................
..................
 
From the above, it manifests that there is express provision in Order 43, Rule 1 (t) of the Code of Civil Procedure for appeal against order passed under Order 41, Rule 19 of the Code refusing to re-admit the appeal.

I have already noticed that in this case the appellant preferred Misc. case under Order 41, Rule 19 of the Code of Civil Procedure for re-admission of Misc. Appeal  in the Court of Joint District Judge, 2nd Court (in-charge), Gazipur,  who  by the impugned judgment and order  dated 28.5.2005 disallowed Misc. Case and the instant appeal is directed against the said judgment and order dated 28.5.2005 passed by the Joint District Judge, 2nd Court (in-charge), Gazipur in Miscellaneous Case No.6 of 2004 refusing to re-admit the appeal. On perusal of Order 43, Rule 1 (t) read with section 104 of the Code of Civil Procedure, I am of the clear view that the instant first miscellaneous appeal is well maintainable. 

It is argued that there is nothing on record to suggest that the appellant was prevented by sufficient cause from appearing  before the Court of appeal below on 11.01.2004 when the matter was called on for hearing  and as such, the learned Joint District Judge committed no wrong in rejecting the Misc. Case filed under Order 41, Rule 19 of the Code of Civil Procedure.

On the contrary, Mr. Golam Arshed, the learned Advocate submits that the appellant in his Misc. Case under Order 41, Rule 19 of the Code of Civil Procedure for readmission of appeal categorically stated that she permanently resides in Dhaka and due to traffic jam she could not reach in Court at  Gazipur from Dhaka in time to take step in her case on 11.01.2004 and as such it can be said that the appellant being a lady was prevented by sufficient cause from  appearing  before the Court on 11.01.2004 when the appeal was called on for hearing though there is nothing in law which prevents a party. Mr. Golam Arshed, to strengthen his submission relies on the decisions reported in 21 DLR 353, 7 DLR 173.

On a careful perusal of the record, it appears that the appellant, Nahida Sultana herself was  examined as PW-1, who in her deposition stated that on the way to Gazipur her Taxi became out of order and also serious traffic jam she could not reach in Gazipur Court premises in time from Dhaka on 11.01.2004 and PW-2 in his deposition corro-borated the evidence of PW-1 in all material particulars.

On going through the application under Order 41, Rule 19 of the Code of Civil Procedure and evidence of PW-1 and PW-2, it appears that on 11.01.2004 due to traffic jam as well as the Taxi of the appellant was fallen out of order on the way to Gazipur from Dhaka could not reach in the Court of  Joint District Judge, 2nd Court (in-charge), Gazipur from Dhaka,  the appellant in time for taking step in her case. Therefore, I am unable to see eye to eye to such submission of the learned Advocate for the respondent that the appellant having failed to make out a case that she was prevented by sufficient cause from appearing  appear before the Court when the appeal was called on for hearing.

Another plank of attack made by Mr. M. A. Hannan, the learned Advocate for the respondent No.1 that the present appellant has no subsisting interest in the case land as she transferred the case land by executing a Ewaz Deed on 29.01.2009 and the learned Joint District Judge rightly arrived at a finding that the pre-emptor-appellant  having realized the merit of the Misc. (pre-emption) Appeal deliberately did turn to  appear before the Court for hearing of the appeal.
      
In reply, Mr. Golam Arshed, the learned Advocate submits that this argument in deciding an application under Order 41, Rule 19 of the Code of Civil Procedure for re-admission of appeal which was  dismissed for default is plainly misconceived.

It appears that  the present appellant after being unsuccessful in an application under Order 41, Rule 19 of the Code of Civil Pro-cedure for re-admission of appeal preferred the instant first miscellaneous appeal for setting-aside the judgment and order dated 28.5.2005 passed by the Joint District Judge, 2nd Court (in-charge), Gazipur in Miscellaneous Case No.6 of 2004 disallowing the    Misc. case under 0rder 41, Rule 19 of the Code of Civil Procedure. It also appears that the impugned judgment has dealt with some unnecessary facts in deciding an application under 0rder 41, Rule 19 of the Code of Civil Procedure for re-admission of Appeal.

The conduct of the appellant may be reprehensible  but the matter cannot be decided on the ground of mere apprehension for non appearance. Whether the appellant was preve-nted by sufficient cause from appearing before the Court when the appeal was called on for hearing will determine the outcome of the proceeding under Order 41, rule 19 of the Code of Civil Procedure.  Order 41, Rule 19  of the Code of Civil Procedure gives ample power to the appellate Court to  re-admit the appeal if the Court is satisfied that the appellant was prevented by any sufficient cause from appearing before the Court  when that appeal was called on for hearing. The only point for consideration before a Court in deciding an application under Order 41, Rule 19  of the Code of Civil Procedure, is whether the applicant was prevented by any sufficient cause from appearing when the impugned  order was passed ex-parte. I, therefore, find there is a good deal of substance in the contentions raised by Mr. Golam Arshed, and the view taken by the Court below can not be legally sustained.

In view of my discussions made in the foregoing paragraphs, it is by now clear that the learned Joint District Judge  acted  illegally   in  rejecting the Misc. Case under 0rder 41, Rule 19 of the Code of Civil Procedure by the impugned judgment and order, the same calls for interference.

In the result, the appeal is allowed. The impugned judgment and order dated 28.5.2005 passed by the learned Joint District Judge, 2nd Court, Gazipur in Miscellaneous Case No.6 of 2004 is set-aside and  accordingly, the appeal being Misc. Appeal No.34 of 2001 is re-admitted.

Since, the case has been dragging over a period of 12(twelve) years, the Court of appeal below is directed to hear and dispose of the appeal as early as possible preferably within 6 (six) months from the date of receipt of this judgment.

Let a copy of the judgment along with reconstructed case record be sent down at once.

Ed.