Salma Alam Khan Vs. Mahanagar Traders Ltd 2016 (2) LNJ 380

Case No: Civil Revision No. 2351 of 2013.

Judge: Kashefa Hussain,

Court: High Court Division,,

Advocate: Mr. Moinuddin,Mr. Md. Harun-ar-Rashid,,

Citation: 2016 (2) LNJ 380

Case Year: 2016

Appellant: Salma Alam Khan

Respondent: Mahanagar Traders Ltd

Subject: Civil Law,

Delivery Date: 2015-12-06

Salma Alam Khan Vs. Mahanagar Traders Ltd 2016 (2) LNJ 380
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
Syed Muhammed Dastagir Hussain, J
And
Kashefa Hussain, J.
Judgment on
06.12.2015
  Mrs. Salma Alam Khan
. . .Petitioner
Versus
Mahanagar Traders Ltd. represented by its Chairman Arjumand Ara
...Opposite Parties

Code of Civil Procedure (V of 1908)
Order X Rule 13
Pursuance to the submissions of the learned Advocates we are of the considered view that for some inadvertent fault of the learned advocate for defendant and that is only once, the party should not suffer, and, therefore, we feel that the Trial Court correctly allowed the application in Miscellaneous Case No. 02 of 2011 dated 08.02.2011.                                                           . . . (7)

Code of Civil Procedure (V of 1908)
Order IX Rule13
In the case before us, it is evident from the order dated 08.02.2011 of the trial court, that the court upon examining the facts and upon exercising its own discretion allowed the application under order 9 rule 13 which discretion the court is lawfully empowered to exercise.        . . . (10)
Civil Revision No. 2351 of 2013.


Mr. Md. Harun-Ar-Rashid, Advocate 
. . . For the Petitioner
Mr. Moinuddin, Advocate
. . . For Opposite Party no.1
 
JUDGMENT
 
Kashefa Hussain, J:
Rule was issued at the instance of the petitioner against order no.155 dated 13.01.2013 passed by the learned Joint District Judge, Additional Court, Dhaka in Miscellaneous Case No. 02 of 2011 arising out of Title Suit No. 07 of 1996 allowing the application of the defendant under Order 9 Rule 13 of the Code of Civil Procedure and condoning the delay of 307 days in filing the application.
  1. The facts relevant for disposal of the Rule in short are that the petitioner as plaintiff filed Title Suit No. 277 of 1995 which was transferred and subsequently re-numbered as Title Suit No. 07 of 1996. The suit was filed after complying with due procedure and upon hearing ultimately decreed vide judgment and decree dated  30.03.2010. Thereafter, on 08.02.2011 the defendants filed the Miscellaneous Case No. 02 of 2011 under order 9 rule 13 of Code of Civil Procedure for setting aside the judgment and decree dated 30.03.2010 paying the prescribed mandatory deposit etc. Primarily  the defendant alleged that the judgment and decree dated 30.03.2010 was an ex-parte order and ought to be set-aside. The PW-1 and DW-1 deposed in the Miscellaneous Case which was allowed by order dated 13.01.2013 along with condonation of delay of 307 days and thus setting aside the judgment and decree dated 30.03.2010 passed by the Trial Court being aggrieved by the order passed in Miscellaneous Case no. 02 of 2011 allowing the application under order 9 rule 13 of Code of Civil Procedure the plaintiff as petitioner preferred this instant Revisional Application and is hence before us.
  2. Mr. Md. Harun-Ar-Rashid Learned Advocate appeared for the petitioner while Mr. Moinuddin Learned Advocate appeared for the opposite party.
  3. Learned Advocate Mr. Md. Harun-Ar-Rashid on behalf of the petitioner submits that the Miscellaneous Case can be allowed but basically on 2 grounds that is for non service of summons and another ground being that order 9 rule 13 of the Code of Civil Procedure is not applicable in the instant case. Since the defendant executed Vokalatnama, written statement and also cross-examined the plaintiff. He further drew our attention to the operative portion of the judgment and decree dated 30.03.2010 and primarily tries to focus upon the word “দোতরফা সুত্রে শুনানী অন্তে ডিক্রি হইলচ in his argument he stresses on the point that it is ‘clear’ that the judgment dated 30.03.2010 was not an ex-parte order since the ordering portion itself reads “দোতরফা সুত্রে শুনানী অন্তে ডিক্রি হইলচ stating that the judgment was executed upon presence of both the plaintiff’s and defendant’s sides. He also submits that according to Article 164 of the limitation Act the miscellaneous case has to be filed within 30 days of knowledge of the decree when in case of non service of summons.
  4. On the other hand learned Advocates Mr. Moinuddin on behalf of the defendant opposite party submits that judgment and order dated 30.03.2010 is actually an ex-parte order and defendants were not present on that particular day before the court and had no knowledge that judgment was going to be passed on that day. He persuades that the use of the term “দোতরফা সুত্রেচ is only an inadvertent error on the part of the Trial Court and which is evident from the order passed in Miscellaneous Case No. 02 of 2011 dated 13.01.2013 allowing the application along with condonation of delay of 307 days and also submits that the original Title Suit was filed in the year 1995 and the suit was dragged on for long 15 years mainly due to various delaying tactics resorted to by the plaintiff. He stresses upon the fact that it is evident from the records that the suit was dismissed several times and that it would be eventually restored repeatedly on various pleas of the plaintiff’s. He further persuades that lastly when it was taken up for hearing due to some unavoidable circumstances on the part of the learned Advocate for the defendant which was inadvertent and totally unintentional, the defendant otherwise diligent regarding  the case however could not be present in court on that day. He alleges that the defendant had  no knowledge of the judgment being passed on 30.03.2010 and which they ultimately learnt later, and finally on 24.01.2011 after receiving knowledge of the judgment filed the Miscellaneous Case No. 02 of 2011 on 08.02.2011, In this context he assails that he filed the case within 30 days of knowledge of the decree in accordance with the statutory rules.
  5. We have heard the Learned Advocates from both sides, perused the materials on record including the miscellaneous application and order passed by the Trial Court allowing the application, wherefrom, it transpires and as is evident from the records that the defendant received summons etc. and in filing the Miscellaneous Case is barred by Article 164 of the Limitation Act, and it also appears from the records that the plaintiff-petitioner had actually prayed for adjournment several times from last 15 years on different pleas and it is also evident from the record that the suit was dismissed for default thrice, firstly on 07.02.19999, secondly on 10.05.2001 and lastly on 24.07.2005 and it was restored each time on the prayer of the plaintiff.
  6. However, upon perusal of the records, we have marked the lack of diligence and delaying tactic shown by the petitioner pending the suit, whereas on the other hand no such conspicuous lack of diligence appears on the part of the defendant, while it is also evident upon examination that the petitioner had on different pretexts created by themselves dragged the suit up to 15 years. It also transpires that even after hearing and examining PW-1 the defendant for some reasons could not appear on the day of the judgment and which they have submitted and stated  that they had no knowledge of the same which is unintentional and inadvertent. It is true that the plaintiff’s suit was discharged and restored thrice and adjourned several times and also restored several times but on the other hand the defendant as is ex-facie evident from the records only once failed to be diligent which was due to inadvertence of the learned advocate for the defendant-petitioner-opposite party. Thus relying upon equitable principles, we are of the considered view that if the plaintiff-opposite party-petitioner could be given so many chances even after failing thrice, it is only fair that the  defendant opposite parties having failed only once ought to be given a similar chance. Pursuance to the submissions of the learned Advocates we are of the considered view that for some inadvertent fault of the learned advocate for defendant and that is only once, the party should not suffer, and, therefore, we feel that the Trial Court correctly allowed the application in Miscellaneous Case No. 02 of 2011 dated 08.02.2011. The learned Advocate for the petitioner argued that Article 164 of the Limitation Act provides that in the event of prayer for setting aside a decree passed ex-parte, time shall start from the date of the decree or where the summons was not duly served when the applicant has knowledge of the decree. The learned advocate for the petitioner tried to persuade us that in this case summons was served, it is evident that summons was served and all other due process were complied with, and, therefore, the defendant cannot rely on having received knowledge of the judgment and decree.
  7. Now the instant civil revision arises out of a Miscellaneous Case for setting aside the judgment and decree under order 9 rule 13 of the Code of Civil Procedure, and, therefore, we feel that for our purpose order 9 rule 13 of Cpc. is applicable in the instant case.
  8. Order 9 rule 13 reads as under;
   “In any case in which a decree is passed ex-parte against defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment in to Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
   Provided that where the decree is of such a nature that it cannot be set-aside as against such defendant only it may be set-aside as against all or any of the other defendants also.”
  1. After perusal of order 9 rule 13, that order 9 rule 13 of the Code of Civil Procedure quite expressly states the criteria and condition and situations under which an application for setting aside an ex-parte order may be allowed. We have examined that order 9 rule 13 provides for a disjunctive clause, wherein it provides for situations or circumstances where a defendant may be prevented by any “sufficient cause” for appearing before the court. In the case before us, it is evident from the order dated 08.02.2011 of the trial court, that the court upon examining the facts and upon exercising its own discretion allowed the application under order 9 rule 13 which discretion the court is lawfully empowered to exercise. Our considered view is that under the facts and circumstances,  it is only fair that the application under order 9 rule 13 ought to be allowed and the Trial Court correctly allowed the same and has elaborated upon the reasons for allowing the same in his Order in the Miscellaneous Case filed by the defendant against the ex-parte Judgment and Decree passed by the Trial Court. The last contention of the petitioner is that the Judgment and Decree is not actually an ex-parte order and further persuades that it also “apparent” from the ordering portion of the judgment dated 30.03.2010 wherein it is stated that the Judgment is passed “দোতরফা সুত্রেচ Against this contention of the learned Advocate for the petitioner our considered finding is that using the word “দোতরফা সুত্রেচ was actually an inadvertently error on part of the Trial Court and which is obvious from the fact that the Trial Court allowed the application under order 9 rule 13 of Cpc. and in his order explained the facts and grounds of allowing the application quite elaborately,  and which is also apparent from the Judgment where the Trial Court made an observation that after cross examination of PW-1, the defendant did not come, therefore, it is evident and obvious that the order “দোতরফা সুত্রেচ used in the ordering portion of the judgment was only an inadvertent error on the part of the Trial Court.
  2.    Taking all the facts and circumstances into consideration, we arrive at our considered finding that the Trial Court vide its Order no.155 dated 13.01.2013 in Miscellaneous Case No.02 of 11 arising out of Title Suit No. 07 of 1996 correctly allowed the application under Order 9 rule 13 of the Cpc. , and, therefore, we do not find any merits in this rule.
  3. In the result, the Rule is hereby discharged without any Order as to costs and the judgment and order dated 08.02.2011 passed by the Trial Court is hereby affirmed. 
  4. Communicate at once.
ED.