Shamsul Arafin Khan Vs. Kazal Miah and others, 49 DLR (AD) (1997) 175

Case No: Civil Appeal No. 58 of 1996

Judge: Latifur Rahman ,

Court: Appellate Division ,,

Advocate: Mr. Md. Aftab Hossain,Md. Nawab Ali,,

Citation: 49 DLR (AD) (1997) 175

Case Year: 1997

Appellant: Shamsul Arafin Khan

Respondent: Kazal Miah and others

Subject: Revisional Jurisdiction,

Delivery Date: 1997-1-13

 
Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal, CJ.
Mustafa Kamal, J.
Latifur Rahman, J.
BB Roy Choudhury, J.
 
Shamsul Arafin Khan
…………………..Appellant
Vs.
Kazal Miah and others
………………… Respondents
 
Judgment
January 13th, 1997
 
Code of Civil Procedure (V of 1908)
Section 115
Disposal of the revisional application without any Rule nor any notice being served upon the appellant for appearing in the case when the matter was taken up for hearing is illegal.
 
Lawyers Involved:
Md. Aftab Hossain, Advocate-on-Record—For the Appellant.
Md. Nowab Ali, Advocate-on-Record—For Respondent No. 1.
Not represented—Respondent Nos. 2-4.
 
Civil Appeal No. 58 of 1996.
(From the judgment and order dated August 20, 1996 passed by the High Court Division in Civil Order No. 2474 of 1996).
 
JUDGMENT
Latifur Rahman J:
 
          This Appeal following leave by the appellant who was an election petitioner, calls in question the judgment and order passed by a Single Judge of the High Court Division in Civil Order No. 2474 of 1996 on 20-8-96 setting aside the order dated 30-6-96 passed by the Additional District Judge, First Court, Brahmanbaria in Election Tribunal Appeal No. 5 of 1993 dismissing the said appeal for default which arose from the judgment and order of Election Tribunal Case No. 13 of 1992 of the Court of Assistant Judge and Election Tribunal allowing the election petition on 31-5-93.
 
2. The short fact relevant for disposal of this appeal may be briefly narrated as follows:
 
3. Respondent No. 1 Kajal Miah was declared elected as the Chairman of Birgaon Union Parishad within PS Nabinagar, District Brahmanbaria in the election held on 26-2-92. The appellant who was a contesting candidate challenged the election by filing an election petition on 13-4-92 contending, inter alia, that the adjourned election held on 26-2-92 for Ward No. 1 at Amtali Primary School Centre has been vitiated by practicing fraud in the said election by the said elected Chairman. The appellant prayed for setting aside the election of that polling station and for holding fresh election. Respondent No. 1 contested the case by filing written objection and denied all the material allegations.
 
4. The Election Tribunal allowed the election petition on contest and set aside the election held on 26-2-92 of Amtali Primary School Centre of Ward No. 1 and directed for holding re-election at that centre. Respondent No. 1 on 28-7-93 preferred Election Tribunal Appeal No. 5 of 1993 in the Election Appellate Tribunal and did not pursue the same after several adjournments and finally the same was dismissed for default on 30-6-96. In Revision, a learned Single Judge of the High Court Division made the Rule absolute and restored the appeal to its file and number subject to payment of Taka 5,000.00 to the appellant within 30 days by respondent No. 1 in default the order of the High Court Division shall stand vacated and the appeal will be deemed to have been dismissed.
 
5. Leave was granted to consider whether the learned Single Judge of the High Court Division acted legally in recalling his earlier order of rejection of the revisional application as not being pressed without assigning any reason and granted full relief to respondent No. 1 without issuing any Rules upon the appellant affording any opportunity to appear In the case o a failure of justice.
 
6. In the election tribunal case the appellant who was the election petitioner got the relief wherein the election held on 20-2-92 in Ward No. 1 of Amtali Primary School Centre was declared as a whole void and the tribunal ordered for holding a fresh election in that centre. Thereafter respondent No. 1 filed Election Tribunal Appeal No. 5 of 1993. In spite of several adjournments he did not appear on the date of hearing of the appeal and the appeal was dismissed for default. In revision while exercising the revisional jurisdiction the learned Single Judge by his order dated 18-8-96 rejected the application as not been pressed after observing as follows:
 
“The learned Advocate for the petitioner submits that he has instruction not to pass this application. Hence this application is rejected as being not pressed.”
 
7. Later on the unsigned order was recalled. There is in fact nothing on record to show whether the unsigned order was recalled suo motu or on the prayer of the learned Advocate for respondent No.1. No reason was assigned to recall the unsigned order of the learned Judge. Thereafter on 20-8-96 the revision was disposed of and the election tribunal appeal was restored to its file and number after setting aside the order of dismissal for default of the appeal subject to payment of Taka 5,000.00 by the appellant to respondent No. 1. In disposing of this revisional application it appears that neither any Rule nor any notice was served upon the appellant for appearing in the case when the matter was taken up for hearing.
 
8. This practice of granting relief summarily without issuing any Rule is held to be illegal and unfair by this Division in the case of Abdul Wahab vs. Ali Ahmed reported in 44 DLR (AD) 55. In that view of the matter, the exercise of jurisdiction by the High Court Division in revision appears to have been done illegally without giving any fair hearing to the appellant.
 
Accordingly, the appeal is allowed and the impugned order set aside without any order as to costs.
 
Ed.