Radha Ballabh Sarkar Vs. Narayan Chandra Roy, 3 LNJ (2014) 518

Judge: A. K. M. Zahirul Hoque,

Court: High Court Division,,

Advocate: Mr. M. G. Mahmud,,

Citation: 3 LNJ (2014) 518

Case Year: 2014

Appellant: Radha Ballabh Sarkar

Respondent: Narayan Chandra Roy

Delivery Date: 2011-11-17


HIGH COURT DIVISION
(Civil Revisional Jurisdiction)
 
A. K. M. Zahirul Hoque, J.

Judgment on
17.11.2011
  Radha Ballabh Sarkar being died his legal heirs, 1(a) Surashee Sarkar and others
. . . Petitioners
-Versus-
Narayan Chandra Roy
... Opposite Party
 

Small Cause Courts Act (IX of 1887)
Section 17
The decree in the SCC suit was executed through execution case and the possession of the suit land was restored to the petitioner through Court. The opposite party did not deposit the amount due under the decree either in the Court or to the petitioner and thereby violated the mandatory provision of section 17 of the Small Cause Courts Act. Then the opposite party filed a Miscellaneous Case for setting aside the exparte decree which was allowed illegally.

Where the petitioner obtained the decree in the SCC suit on 07.08.1985 and then on Execution Case No. 74 of 1985 for recovery of possession was preferred and in pursuance of bailiff of the Court the defendant opposite party vacated the suit property and on 17.08.1985 the petitioner restored his possession. Thereafter the opposite party filed the Miscellaneous Case No. 726 of 1985 in the said Court for setting aside the ex-parte decree which was already executed and before that defendant opposite party did not deposit the amount due under the decree neither before the Court nor to the plaintiff and therefore it violated the statutory mandatory provision of Section 17 of the Small Cause Courts Act. . . .(12)

It was the mandatory duty of the opposite party to deposit the amount due to him under the decree or any such security for the performance of the decree or compliance with the judgment as the Court may on a previous application made by him at the time of application made by the Court. This mandatory provision of law was not followed by the opposite party in filing the application for set aside the miscellaneous application. It further appears that the decree which obtained by the petitioner in SCC suit and that decree has been executed through an execution case and restored his possession before filing the miscellaneous case therefore the subsequent miscellaneous case for setting aside the decree has become no force in the eye of law under the facts and circumstances of this case. . . .(13)

Considering the above facts and circumstances and relevant provision of law, I find substance in the submissions of the learned Advocate for the petitioner that the learned Subordinate Judge, 3rd Court, Dhaka committed error of law in allowing the miscellaneous case and it further appears that the said miscellaneous case did not disclose any reason under what circumstances the miscellaneous application was allowed apparently the said impugned order is non speaking order which carries no value in the eye of law. . . .(14).

Mr. M. G. Mahmud, Advocate
. . . For the Petitioners
None appears
. . . For the Opposite Party

Civil Revision No. 6050 of 2001
 
JUDGMENT
A. K. M. Zahirul Hoque, J.
 
This rule was issued calling upon the opposite party to show cause as to why the impugned order dated 08.04.2001 passed by the Subordinate Judge, 3rd Court, Dhaka in Miscellaneous Case No. 726 of 1983 allowing the Miscellaneous case by setting aside the judgment and decree dated 08.07.1983 passed exparte by the learned Subordinate Judge, 3rd Court, Dhaka in S.C.C. Suit No. 62 of 1980 decreeing the suit should not be set aside and or such other or further order or orders passed as to this Court may seem fit and proper.

Facts, relevant for the purpose of disposal of the rule, in short, is that the petitioner as the plaintiff filed S. C. C Suit No. 62 of 1980 before the Subordinate Judge, 3rd Court, Dhaka for ejectment of a monthly tenant.

The case of the plaintiff-petitioner as set out in the plaint in short is that the plaintiff purchased holding No. 135, Sakhari Bazar from Sreemati Bilash Manjuri Sur by a registered sale deed dated 31.05.1969 and after purchase the plaintiff mutated his name in the S. A. Khatian No. 2766. That the vendor of the plaintiff Sreemati Bilash Sur let out one room as mentioned in the schedule to the defendant at a monthly rent of Tk. 50.00. After purchase of the said holding the plaintiff on several occasions demanded rent of the tenanted room from the defendant and the defendant by raising false excuse did not pay rent to the plaintiff. The plaintiff filed Title Suit No. 43 of 1972 in the Court of 1st Munsif, Dhaka against this defendant and Sreemati Bilash Manjuri Sur and others for permanent injunction restraining the defendant not to pay rent of his tenanted room to the aforesaid Sreemati Bilash Manjuri Sur or others and the said suit was decreed on 13.07.1972 against the defendant and others. Even after passing of the decree of permanent injunction the present opposite party did not care to pay rent of his tenanted room to the plaintiff. A notice under section 106 of the Transfer of Property Act was sent to the opposite party but he refused to accept it. The defendant is a defaulter and his tenancy has been terminated by serving the said notice. The plaintiff requires the room for his bonafide use and occupation and also for thorough repair. The plaintiff is entitled in equity and law to evict the defendant and get the room in his khass possession.

The defendant opposite party contested the case by filing a written statement deying all the material allegations made in the plaint. The case of the defendant opposite party in short is that the case is not maintain able in the present form, there is no cause of action and that the plaintiff has no title over the case property, the defendant is the tenant of Bilash Monjuri Sur and pays rent to her. The defendant is not a defaulter as a tenant. The case property is not required by the plaintiff as bonafide and as the suit will be dismissed.

The case was fixed for hearing on different dates and the defendant took time from the Court in several times. On 29.06.1985 on the prayer of the defendant time was allowed as a last chance with a cost of Tk. 70/- in favour of the plaintiff-petitioner. On 08.07.1985 the case was fixed for preemptory hearing and the learned Subordinate Judge decreed the suit exparte after hearing and considering the oral and documentary evidence.

The plaintiff-petitioner filed Execution Case No. 74 of 1985 for the recovery of possession of the suit property and on 17.08.1985 on the instruction of the Bailif of the Court the defendant vacated the suit property and possession was delivered to the plaintiff-petitioner by the Court.

Thereafter the defendant-opposite party filed Miscellaneous Case No. 726 of 1985 in the said Court to set aside the decree dated 17.08.1985 and the plaintiff-petitioner was contesting the Miscellaneous Case by filing a written objection. The plaintiff-petitioner as Advocate of District Court at Dhaka is an old man aged about 90 years fell sick in the month of February, 2001 and the Doctor advised and prescribed him to take complete bed rest.

Under such unavoidable circumstances the plaintiff executed a power of attorney appointing his son, Mr. Provat Kumar Sarker (Sunil) but due to unavoidable circumstances he could not appear before the Court and ultimately Miscellaneous case was allowed  exparte in the absence of the plaintiff. Though, no deposit of the amount due under the decree was deposited in the Court by the opposite party.

Being aggrieved by and dissatisfied with the order dated 08.04.2001 passed by the learned Subordinate Judge, 3rd Court, Dhaka in Miscellaneous Case No. 726 of 1985 the petitioner preferred this revisional application and obtained the present rule.

Mr. M. G. Mahmud (Shaheen), the learned Advocate appearing on behalf of the petitioner submits that since the opposite party did not deposit the amount as due under the decree neither above the Court nor to the plaintiff land lord and therefore the statutory mandatory provision of Section 17 of the Small Cause Courts Act has been violated but the learned court below failed to consider this legal aspect and thereby the impugned judgment is bad in law. He categorically submits that after obtaining decree from the Small Causes Court by the plaintiff petitioner then filed execution case and that decree has already been executed long before the impugned order and after execution of the decree in the execution case then the decree in SCC suit has been set aside by the learned court below is an infractous one which has no value in the eye of law but the learned court below who himself is the execution court has failed to consider this material as well as legal aspect and therefore it committed an error in passing the order. He lastly submits that the defendant opposite party willfully and deliverately was absent on the date of experte decree of the SCC suit while he was present and contested the SCC suit by filing written statement without denying the land lordship of the petitioner this material fact was not considered by the lower Court in passing the impugned order and therefore the impugned order is also against the material on record and the same is liable to be set aside.

No one appears for the opposite party to oppose the rule.

Heard the learned Advocate for the petitioners, perused the materials on record including the judgment and order itself.

It appears from the statement of the application under section 115 of the Code of Civil Procedure in where the petitioner obtained the decree in the SCC suit on 07.08.1985 and then on Execution Case No. 74 of 1985 for recovery of possession was preferred and in pursuance of bailiff of the Court the defendant opposite party vacated the suit property and on 17.08.1985 the petitioner restored his possession. Thereafter the opposite party filed the Miscellaneous Case No. 726 of 1985 in the said Court for setting aside the experte decree which was already executed and before that defendant opposite party did not deposit the amount due under the decree neither before the Court nor to the plaintiff and therefore it violated the statutory mandatory provision of Section 17 of the Small Cause Courts Act and the Section 17 of the Small Cause Courts Act is as under;

“Application of the Code of Civil Procedure-(1) [The procedure prescribed in the Code of Civil Procedure, 1908, (V of 1908) shall, save in so far is otherwise provided by that Code or by this Act], be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits.

Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give [such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed].

(2) Where a person has become liable as surety under the proviso to sub-section (1), the security may be realized in manner provided by section [145] of the Code of Civil Procedure. [1908].”

This above proviso shows that it was the mandatory duty of the opposite party to deposit the amount due to him under the decree or any such security for the performance of the decree or compliance with the judgment as the Court may on a previous application made by him at the time of application made by the Court. This mandatory provision of law was not followed by the opposite party in filing the application for set aside the miscellaneous application. It further appears that the decree which obtained by the petitioner in SCC suit and that decree has been executed through an execution case and restored his possession before filing the miscellaneous case therefore the subsequent miscellaneous case for setting aside the decree has become no force in the eye of law under the facts and circumstances of this case. 
   
Considering the above facts and circumstances and relevant provision of law, I find substance in the submissions of the learned Advocate for the petitioner that the learned Subordinate Judge, 3rd Court, Dhaka committed error of law in allowing the miscellaneous case and it further appears that the said miscellaneous case did not disclose any reason under what circumstances the miscellaneous application was allowed apparently the said impugned order is non speaking order which carries no value in the eye of law.

In view of the facts and circumstances and reasons thereof I am of the opinion that there is substance in the rule.

In the result, the rule is made absolute without any order as to costs.  The impugned order dated 08.04.2001 passed by the Subordinate Judge, 3rd Court, Dhaka in Miscellaneous Case No. 726 of 1983 is hereby set aside.

The order of Stay granted at the time of issuance of the Rule on 11.11.2001 is hereby vacated.

Send down a copy of the judgment to the Court below at once.

Ed.