Case No: Civil Petition for Leave to Appeal No.775 of 1997
Judge: ATM Afzal ,
Court: Appellate Division ,,
Advocate: Mr. Mahbubey Alam,Mr. Korban Ali,,
Citation: 50 DLR (AD) (1998) 164
Case Year: 1998
Appellant: Shahidullah (Md)
Respondent: Md. Yunus and others
Subject: Procedural Law,
Delivery Date: 1997-11-16
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
Md. Yunus and others
November 16, 1997.
The Constitution of Bangladesh, 1972
The appeal was heard ahead of the date appearing on the notice for hearing, at detriment of the petitioner. It is a fit case in which the petitioner should move the High Court Division for a rehearing of the appeal and the Court should allow it provided the allegation is found to be correct. Nobody should suffer for any wrong done or omission made by a court …………………(3)
Mahbubey Alam, Advocate instructed Chowdhury Md. Zahangir, Advocate-on-Record, For the Petitioner.
Korban Ali, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record—For the Respondent No.1.
Not represented — Respondent Nos. 2-3.
Civil Petition for Leave to Appeal No.775 of 1997.
ATM Afzal CJ.
In view of the order we propose to make in this petition for leave to appeal, it will be sufficient to notice that the plaintiff petitioner is making a grievance that FMA No. 42 of 1997 filed by the defendant-respondents which arises out of Miscellaneous Case No. 1 of 1986, under Order XXXIX rule 2(3) of the Code of Civil Procedure, of the Second Court of Subordinate Judge, Dhaka, was heard by a Division Bench of the High Court Division in the absence of the petitioner (respondent in said FMA) and allowed by the impugned judgment and order dated 1st June, 1991 even though in the notice served upon the petitioner the date fixed for hearing of the said appeal was 25 June, 1997. The impugned decision was thus made without the petitioner being heard. In support of his allegation, the petitioner has enclosed a copy of the notice, which clearly states that the FMA No. 42 of 1997 has been set down for hearing on 25 June, 1997.
2. Mr. Korban Ali, learned Advocate, entering caveat for respondent No. 1, had no reply to the allegation made by the petitioner. Mr. Korban Ali says that he was not in the High Court Division and so it is difficult for him to refute the allegation.
3. There is no reason to disbelieve, prima facie, the allegation made by the petitioner. Nobody should suffer for any wrong done or omission made by a Court. It is a fit case in which the petitioner should move the High Court Division for a rehearing of the appeal and the Court should allow it provided the allegation is found to be correct.
4. Mr. Mahbubey Alam, learned Advocate for the petitioner, has submitted that on merit, also the impugned judgment is not sustainable, the submission may be reserved for the appropriate forum. Here the petitioner succeeds on the ground that he could not make his submission in the appeal for no fault of his own.
The petition is disposed of with observation as above.