Raisuddin (Md) Vs. Sitaram Bhar and others

Case No: Appeal from Original Order No. 112 of 1997.

Judge: Md. Abdul Aziz,

Court: High Court Division,,

Advocate: Reba Kaniz,Md. Mahbub Ali,,

Citation: 53 DLR (2001) 131

Case Year: 2001

Appellant: Raisuddin (Md)

Respondent: Sitaram Bhar and others

Subject: Property Law,

Delivery Date: 2001-02-12

Raisuddin (Md) Vs. Sitaram Bhar and others
53 DLR (2001) 131
 
 
Supreme Court
High Court Division
(Miscellaneous Appellate Jurisdiction)
 
Present:
Md. Abdul Aziz J
 
Raisuddin (Md)…….. Appellant
Vs.
Sitaram Bhar and others……..Respondents
 

Judgment
February 12, 2001.
 
Code of Civil Procedure (V of 1908)
Order XLI rule 19
The word “proved” is sufficiently indicative of taking evidence as to the existence of sufficient cause to pass an order under Order 41 rule 19 of the Code.

Cases Referred To-
Mrinal Kanti Guha & others Vs. Brajendra Lad Dhar & others 44 DLR (AD) 9; Salamat Bibi & others Vs. Settlement and Rehabilitation Commissioner, Multan, 21 DLR (SC) 353.
 
Lawyers Involved:
Md. Mahbub Ali, Advocate— For the Appellant.
Reba Kaniz for AK Ahmadul Hasan, Advocate — For Respondent Nos. 1-3.

Appeal from Original Order No. 112 of 1997.
 
Judgment
                    
Md. Abdul Aziz J. - This First Miscellaneous Appeal is directed against Order No. 85 dated 16-2-97 passed by the learned Additional District Judge, Moulvibazar dismissing the Miscellaneous Case No.3711995 under Order 41, rule 19 of the Code of Civil Procedure brought by the plaintiff-appellant.

2. The facts of the Case, in short, inter alia, is that the plaintiff-appellant brought Title Suit No. 117/1984 in the Court of Assistant Judge Kamalganj Upazilla, Moulvibazar for declaration of title and rectification of Kabala deed which was dismissed on 27-3-86 on contest. The plaintiff filed a title Appeal being Title Appeal No.118 of 1986 before the learned District Judge which was dismissed for default on 4-9-1995. The plaintiff-appellant filed an application under Order 41, rule 19 of the Code of Civil Procedure for re-admission of the appeal on which Miscellaneous Case No. 37 of 1995 was started. The said miscellaneous Case was dismissed for default on 23-1-1996. The plaintiff-appellant filed an application under section 151 of the Code of Civil Procedure for restoration of the said Miscellaneous Case on setting aside the order dated 23-1-96 which was rejected by the Court vide its order dated 29-6-96. The plaintiff-appellant again filed another application under section 151 of the said Code which was, however, allowed by the Court vide its order dated 14-8-96 for restoring the Miscellaneous Case No.37 of 1995 setting aside the order dated 23-1-96. Thereafter the appellate Court below took up the application filed by the plaintiff-appellant under Order 41, rule 19 of the Code in Miscellaneous Case No.37 of 1995 for hearing and rejected the same by the impugned order. Being aggrieved by the aforesaid impugned order dated 16-2-97 the plaintiff-appellant preferred this appeal.

3. Mr. Md. Mahbub Ali, the learned Advocate appearing on behalf of the plaintiff-appellant submits that the impugned order suffers from serious infirmity in not considering and giving any finding on the legal requirement of rule 19 of Order 41 of the said Code as to whether the appellant was prevented by any sufficient cause from appearing when the appeal was called on for hearing” and, as such, the impugned order is liable to be set aside. He further submits that the appellate Court below having given his full consideration on the laches and negligence of the plaintiff-appellant in pursuing the proceeding while rejecting the aforesaid application the impugned order is not sustainable in law in view of the provisions of rule 19, Order 41 of the Code of Civil Procedure. Mr. Ali further submits that the plaintiff-appellant having filed the suit paying ad valorem Court-fee and pursued the original suit with utmost care and sincerity, the appellant-litigant should not be deprived of his right of hearing of his grievance on frivolous ground but should be given an opportunity to get the matter heard on merit. He further submits that the application filed by the plaintiff-appellant under Order 41, rule 19 of the Code of Civil Procedure was also accompanied by an application under section 5 of the Limitation Act and neither the application under rule 19, Order 41 of the said Code nor the application under section 5 of the Limitation Act having been opposed and controverted by the defendants-respondents and there being no evidence taken in the Case on the issues both on sufficient cause and on limitation, the appellate Court below has wrongly dismissed the miscellaneous Case finding the same as barred by limitation. In support of his submission Mr. Ali has referred a Case between Mrinal Kanti Guha and others Vs. Brajendra Lal Dhar and others, reported in 44 DLR (AD) 9.

4. On the other hand, Mrs. Reba Kaniz, the learned Advocate appearing on behalf of the defendants-respondents, submits that the learned Appellate Court below has passed the impugned order illegally as per provision of Order 41, rule 19 of the said Code and has committed no wrong or illegality. She further submits that the learned Court below has disbelieved the Medical Certificate and found no sufficient cause to allow the said application filed under Order 41, rule 19 of the Code. She lastly submits that the Court below has dismissed the miscellaneous Case by the impugned order finding that the application was barred by limitation by two months and 20 days and the delay was not explained by the plaintiff-appellant. In support of her submission Mrs. Reba Kaniz, the learned Advocate for the defendants-respondents has cited a decision in the Case between Salamat Bibi & others Vs. Settlement and Rehabilitation Commissioner, Multan, reported in 21 DLR (SC) 353.

5. Perused the impugned order and heard the learned Advocates of both the sides. The impugned order reveals that the plaintiff-appellant filed an application under Order 41, rule 19 of the Code for setting aside the order dated 4-9-95 passed by the appellate Court below dismissing Title Appeal No.188 of 1986 for default preferred against the judgment and decree dated 27-3-86 passed by the learned Assistant Judge, Kamalganj dismissing the Title Suit No.117 of 1984. The said application under Order 41, rule 19 of the said Code vide Miscellaneous Case No.37 of 1995 was dismissed for default on 23-1-96 and an application under section 151 of the Code of Civil Procedure was filed on 4-3-96 for restoration of the miscellaneous Case which was also dismissed for default on 29-6-96. Thereafter the plaintiff-appellant filed another application under the same section of the Code on 31-7-96 and the Court allowed the same vide its order dated 14-8-96 restoring the Miscellaneous Case No.37/95 setting aside the order dated 23-1-96. The miscellaneous Case was taken up for hearing on 16-2-97 and was rejected by the appellate Court below vide its impugned order dated 16-2-97 finding that the plaintiff-appellant has been delaying the hearing and disposal of the Case on different pretexts and not eager to hear the Case conclusively. The appellate Court below further found that the plaintiff-appellant filed the miscellaneous Case under Order 41, rule 19 of the said Code with a Medical Certificate alleging that he had fallen sick on and from 01-9-95 and continued till 20-11-95 and, as such, he could not appear before the Court when the title appeal was called on for hearing under Order 41, rule 19 of the Code of Civil Procedure and consequently, the appeal was dismissed for default, was barred by limitation and the Medical Certificate was disbelieved by the learned Court below as a mere pretext to add harassment to the defendants-respondents.

6. Mr. Md. Mahbub Ali, the learned Advocate for the plaintiff-appellant, challenging the aforesaid impugned order asserted that the learned appellate Court below has dismissed the miscellaneous Case for frivolous reasons and findings which is devoid of legal requirement of rule 19 of Order 41 of the Code of Civil Procedure and gave no finding as to whether the plaintiff-appellant was prevented by sufficient cause from appearing before the Court when the appeal was taken up for hearing under Order 41, rule 11 of the said Code and, as such, the impugned order is not maintainable in law. He further submits with reference to a decision mentioned above reported in 44 DLR (AD) 9 that the previous conduct of the respondents cannot be a ground for refusing relief under the provision of rule 19, Order 41 of the Code. It has further been contended by him that the Court below did not fix any date for taking evidence nor any evidence was taken either on the sickness of the plaintiff-appellant or on point of limitation but wrongly disbelieved the Medical Certificate and found that the miscellaneous Case was barred by limitation by 2(two) months and 20 days.

7. Mrs. Reba Kaniz, the learned Advocate appearing on behalf of the defendants-respondents, contends that the appellate Court below passed the impugned order legally disbelieving the Medical Certificate as well as finding the miscellaneous Case barred by limitation as aforesaid.
Order 41, rule 19 of the Code of Civil Procedure runs as follows-
“19. (1) Where an appeal is dismissed under rule 11, sub-rule (2), or rule 15A or rule 17 or rule 18, the appellant may apply to the Appellate Court for re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.
(2) Provisions of section 5 of the Limitation Act, 1908 shall apply to applications under sub-rule (1)”.
On a plain reading of the aforesaid provisions of rule 19 of Order4l of the Code it appears that the Court while disposing of an application under rule 19 of Order 41 of the Code must be satisfied that it was “proved” that the complaining party was prevented by any sufficient cause from appearing before the Court when the suit or appeal was called on for hearing. The word “proved’ is sufficiently indicative of taking evidence as to the existence of sufficient cause to pass an order under Order 41 rule 19 of the Code. It is evident from the impugned Order that the trial Court did not at all take any evidence on the Medical Certificate filed by the plaintiff-appellant along with his application under rule 19 of Order 41 of the Code to satisfy himself as to whether the plaintiff-appellant was really sick and the Medical Certificate was genuine or not. Instead, the appellate Court below disbelieved the same and dismissed the miscellaneous Case. It also appears that the Court below has also found that the miscellaneous Case was barred by time by 2 months and 20 days. On these two counts the appellate Court below dismissed the miscellaneous Case.

8. At the time of hearing of the appeal the learned Advocate for the appellant produced a certified copy of a petition under section 5 of the Limitation Act which was filed by the plaintiff-appellant before the appellate Court below along with his application under rule 19 of Order 41 of the Code explaining the delay. Unfortunately, the impugned order is absolutely silent about this petition under section 5 of the Limitation Act which was filed by the appellant with his application under Order 41 rule 19 in compliance of sub-rule (2) of rule 19 of Order 41 of the Code.

9. I have also perused the decisions reported in 21 DLR (SC) 353 and 44 DLR (AD) 9 as mentioned above. Their Lordships in the Case reported in 21 DLR (SC) 353 have been held that:
“Order XLI, rule 19 of the Code of Civil Procedure gives the requisite power to the appellate Court to re-admit an appeal dismissed for default, “where it is proved that he (the appellant) was prevented by sufficient cause from appearing when the appeal was called on for hearing”. As to what is or is not sufficient cause for the purposes of the rule must necessarily depend upon the facts and circumstances of each Case and each Case must be judged upon its merits and its peculiar circumstances.”
Their Lordships also found that:
“The determination of the question as to whether there is or is not a “sufficient cause” in a particular Case is no doubt a matter within the discretion of the Court itself, but it has to be remembered that this discretion too, like all other discretions exercised by a Court, must be exercised in a judicious manner having regard to all the facts and circumstances of each Case and that a litigant should not be lightly deprived of the right of having his Case heard by the Court.”

10. In this Case before me it appears that the appellate Court below disposed of the Miscellaneous Case No. 37 of 1995 on reasons and findings beyond the requirement of the provisions of rule 19 of Order 41 of the Code. The Court has not at all considered whether there was, or that whether the Court was satisfied as to the, existence of sufficient cause which prevented the litigant appellant to appear before the Court when the appeal was taken up for hearing and, as such although the Court is empowered to take a decision within its discretion, but the decision was not taken by exercising its discretion in a judicious manner. The Court has also not taken any evidence and examined any witness on behalf of the plaintiff appellant to prove the genuineness of the allegation of sickness and of the Medical Certificate to ‘prove’ the sufficient cause which prevented him from appearing before the Court on the relevant date. The appellate Court below has not taken into consideration at all the application filed by the plaintiff-appellant under section 5 of the Limitation Act. The impugned order reveals that the appellate Court below has disposed of the aforesaid application by dismissing the miscellaneous Case merely on the ground of negligence and laches of the party and on limitation. It has been clearly held by the Appellate Division in the Case reported in 44 DLR (AD) 9 that-
“The previous conduct of the respondent may be reprehensible but the matter cannot be decided on the ground of mere previous conduct. Whether the defendant was prevented by sufficient cause from appearing when the appeal was called on for hearing will determine the outcome of the proceeding under Order 41, rule 19 CPC.”
But here in the present Case, the appellate Court has given no consideration on this very vital point of the Rule and gave no finding whether there was any sufficient cause which prevented the appellant from appearing before the Court when the appeal was called on for hearing. The appellate Court below had virtually deprived the litigant plaintiff-appellant of the right of having his Case heard on merit by the Court without giving any finding on the requirement of law of rule 19 of Order 41 of the CPC.

11. In view of the above facts and circumstances of the Case, I find merit in the submissions of the learned Advocate for the plaintiff-appellant and in view of my above discussions on the facts and circumstances of the Case and on consideration of both the decisions referred to by the learned Advocates of both the sides, I am of the opinion that the impugned order is not sustainable in law. The litigant plaintiff- appellant should be given an opportunity to get his title appeal heard on merit.

12. In the result, the appeal is allowed without any order as to costs.

13. The impugned order dated 16-2-1997 is hereby set aside. The Miscellaneous Case No.37 of 1995 under Order 41, rule 19 of the Code of Civil Procedure is hereby allowed and the Title Appeal No.118 of 1986 is hereby restored to its original number and file.
Since considerable period of time has already elapsed till filing of the title appeal, the appellate Court is hereby directed to dispose of the appeal on merit within 3(three) months from the date of receipt of this judgment and order of this Court for ends of justice.
Ed.