Sanatannessa Bewa Vs. Haipatullah Sarker & others, 41 DLR (AD) (1989) 105

Case No: Civil Appeal No. 57 of 1987

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: Sharifuddin Chaklader,Mr. Md. Afzal Hossain,,

Citation: 41 DLR (AD) (1989) 105

Case Year: 1989

Appellant: Sanatannessa Bewa

Respondent: Haipatullah Sarker and others

Subject: Procedural Law,

Delivery Date: 1987-7-21

Supreme Court
Appellate Division
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J
Sanatannessa Bewa
Haipatullah Sarker & others
July 21, 1987.

The Code of Civil Procedure, 1908 (v of 1908),
Section 104
Before exercising the discretion for restoration of a case, the court takes into consideration whether any useful purpose will be served in allowing the restoration and no such purpose is apparent on restoration in this case, the court is reluctant to restore and also to relieve the parties from fruitless litigation…………………….(5)
Lawyers Involved:
Sharifuddin Chaklader, Advocate-on-Record— For the Petitioner
Md. Afzal Hossain, Advocate-on-Record-For the respondent Nos. 1, 3(f) & 4.
Not represented- Respondent Nos. 2, 3 (a) to 3(e).
Civil Appeal No. 57 of 1987.
A.T.M. Afzal J.
Plaintiff is the appel­lant. Leave to appeal was obtained from order dated 24.10.1983 passed by a Single Judge of the High Court Division, Rangpur Bench in Second Appeal No. 268 of 1978 dismissing an application for resto­ration of the said appeal which was dismissed for de­fault on 19.6.83.
2. The grievance made by the appellants is that the learned Judge instead of considering whether the learned Advocate for the appellant was prevented by sufficient cause from appearing when the appeal was taken up for hearing dismissed the petition for restoration holding that there was no merit in the ap­peal.
3. Upon a scrutiny of the relevant orders, it appears that the grievance is not entirely justified. It is true that on both occasions i.e. while dismissing the appeal for default and also while rejecting the ap­plication for restoration the merit of the appeal was taken into consideration by the learned Judge. But then it has also been found that 'there was no satis­factory legal plea on the part of the plaintiff-appellant which prevented him from attending court when the case was fixed for hearing'.
4. It appears that the second appeal arose out of a suit for declaration that a Hiba-Bil-Ewaj was ob­tained by fraud. Both the courts below concurrently found that the plaintiff could not establish the al­leged fraud and accordingly the suit was dismissed and it was affirmed in appeal. The learned Judge of the High Court Division having noticed the facts of the case observed that it was concluded by a concurrent finding of fact. In that context it was further observed that no purpose would be served in restoring the second appeal for further hearing.
5. In considering art application for restoration the court often takes into consideration, besides the grounds taken for restoration, whether any useful purpose will be served in allowing the same. In its anxiety to do justice the merit of the case is often considered by the court before exercising discretion in such matter. We do not, therefore, think that the impugned order has been vitiated by reason of con­sideration of the merit of the case also. We ourselves feel having regard to the facts of the case that the plaintiff instead of being benefited in any manner will be driven to a fruitless litigation if the restora­tion is allowed. The impugned order, therefore, does not call for any interference.
The appeal is, accordingly, dismissed without any order as to cost.