Reazul Hoque Molla Vs. Afizullah Mollah @ Shafiuddin Molla, 42 DLR (AD) (1990) 74

Case No: Civil Appeal No. 11 of 1988

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: Mr. T. H. Khan,,

Citation: 42 DLR (AD) (1990) 74

Case Year: 1990

Appellant: Reazul Hoque Molla

Respondent: Afizullah Mollah @ Shafiuddin Molla

Subject: Specific Performance, Law of Contract,

Delivery Date: 1989-4-30

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rah­man J
A.T.M. Afzal J
 
Reazul Hoque Molla
........................................Defendant-Appellant
Vs.
Afizullah Mollah @ Shafiuddin Molla & ors
………………................Plaintiff-Respondents
 
Judgment
April 30, 1989.
 
The Code of Civil Procedure, 1908 (V of 1908)
Section 151
Order IX, Rule 13

The learned assistant judge has not come to any finding as to service of summons upon the appellants to ascertain due service. So there is no necessity of farther determination of question of service upon the appellants. The order of the learned assistant judge has rightly been set-aside by the High Court Division. In deciding an application under Order IX, rule 13 of the Code of Civil Procedure learned Assistant Judge cannot restore the suit in exercise of inherent power under section 151 of the Code…………………(5 & 6).
 
Lawyers Involved:
T. H. Khan, Senior Advocate instructed by Md. Sajjadul Huq, Advocate-on-Record — For the Appellant
Abu Sayeed Ahmed, Advocate instructed by Md. Aftab Hossain, Advocate-on-Record—For the Respondent No.1.
Not Represented.—Respondent Nos. 2-4
 
Civil Appeal No. 11 of 1988
(From the judgment and order dated 3 March, 1987 passed by the High Court Division, Dhaka in Civil Revision No. 470 of 1984).
 
JUDGMENT
A.T.M. Afzal J.
 
In this appeal by leave, at the instance of the defendant, the short point for consideration is whether the learned Judge of the High Court Division was justified in selling aside in revision the order of the Assistant Judge allowing a Miscellaneous Case under Order 9, rule 13 of the Code of Civil Procedure.
 
2. Facts of the case, briefly, are that the respondent-plaintiff instituted Title Suit No.34 of 1982 in the Court of Assistant Judge, Narsingdi for specific performance of contract against his father, Danis Ali Molla. The suit was re-numbered as Title Suit No.20 of 1984 on transfer to the Court of As­sistant Judge, Monohordi. Danis Ali Molla died dur­ing pendency of the suit and his heirs including the appellant (a son) were substituted in his place. The suit was decreed ex parte on 31.1.83. The appellant filed an application under Order 9, rule 13 C. P. C. for selling aside the ex parte decree which was regis­tered as Miscellaneous Case No.23 of 1983. It was alleged that the summons was not served upon the appellant and that he came to know about the ex parte decree for the first time on 10.2.83.
 
3. Plaintiff-respondent contested the miscella­neous case asserting that the summons was duly served upon all the heirs of Danis Ali Molla includ­ing the appellant and that the appellant had full knowledge of the proceeding but even then he did not come to contest the suit. The learned Assistant Judge by order dated 29.5.84 allowed the Miscellaneous Case subject to payment of Tk.200/- by the appellant to the plaintiff. Plaintiff then went in revision against the said order and a learned Judge of the High Court Division, Dhaka, by the impugned Judgement and order dated 3 March 1987 made the rule absolute and set aside the order of the learned Assistant Judge.
 
4. Mr. T.H. Khan, learned advocate for the ap­pellant, submitted that having found that the Assist­ant Judge had not come to any definite finding as to whether summons was served upon the defendant-appellant, the learned Judge of the High Court Divi­sion ought to have either remanded the case or exam­ined the record himself for a decision as to alleged non-service of summons. He also submitted that in­terference in revision being discretionary, the order of the Assistant Judge allowing the Misc. Case upon awarding cost ought not to have been interfered with.
 
5. The learned Judge of the High Court Divi­sion observed in his judgment that the Assistant Judge was required to come to a finding with reference to the evidence on record that there was no ser­vice of summons upon the defendant or there was sufficient cause for his non-appearance at the hearing of the suit. In the absence of any such finding the Assistant Judge had erred in law in allowing the Misc. Case only for the ends of justice, he observed further. It will be seen that the learned Assistant Judge evidently did not set aside the ex parte decree on the grounds as are available under Order 9, rule 13 C.P.C but he resorted to the inherent power of the Court under section 151 C.P.C. This the Assistant Judge could not lawfully do, because, if he is consid­ering an application under Order 9, rule 13 C.P.C he has authority to determine whether the ground for selling aside the ex parte decree as mentioned therein exists or does not exist. He cannot draw upon inherent power while acting under a specific provision of the Act governing the disposal of the case. There­fore, the view taken by the learned Judge of the High Court Division is correct and it could not be said that he was not justified in selling aside the order of the Assistant Judge.
 
6. Upon a reference to the order of the Assistant Judge it is found that he has considered the evi­dence of both sides on the question of service of summons but he was not clear about the actual receipt of summons by the defendant. He was, howev­er, absolutely clear that the appellant had knowledge about the suit because his elder brother, another defendant in the suit, had appeared and prayed for time. The suit being among close relations of the same family there could not be any question of the appel­lant remaining unaware of the same, the learned Assistant Judge observed. It was noticed by the learned Assistant Judge as per record the summons were served upon the defendants. The summons for the ap­pellant was, however, actually served on one Nurul Islam, a cousin of the appellant, living in the same house in the absence of the appellant. Nurul Islam deposed that he had handed over the summons to the appellant. In the copy of the Judgment (Page 35 of the Paper book) is written "যাহাকে উভয়পক্ষের সাক্ষীগণের সাক্ষ অনুযায়ী সুষ্ঠুভাবে ধারনা করা যায় যে প্রার্থী সমন পৌছানো হয়েছে।" Mr. T. H. Khan could not show that the find­ing as quoted above was wrong. But reading the High Court Division Judgement, it appears that there may be something missing in it. However, taking for argument's sake that the learned Assistant Judge has not come to any finding as to service of summons upon the appellant, we do not think, hav­ing regard to all the facts noticed and observation made by the learned Assistant Judge, that there is any necessity for further determination of the question of service of summons upon the appellant. The order of the learned Assistant Judge has been rightly set aside by the High Court Division and there is no force in the submission made by the learned Advo­cate for the appellant.
 
In the result, the appeal is dismissed without any order as to costs.
 
Ed.