Torab Ali (Md) Vs. Government of the People's Republic of Bangladesh and Others

Case No: Revision No. 4415 of 2000

Judge: Afzal Hossain Ahmed,

Court: High Court Division,,

Advocate: Mr. Md. Abdul Haque,Feroz Shah,,

Citation: 59 DLR (2007) 154

Case Year: 2007

Appellant: Torab Ali

Respondent: Government of the People's Republic of Bangladesh and Others

Subject: Property Law,

Delivery Date: 2005-01-10

Torab Ali (Md) Vs. Government of the People's Republic of Bangladesh and Others
59 DLR (2007) 154
 
 
Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
Afzal Hossain Ahmed J
 
Torab Ali (Md) …………………..Petitioner
Vs.
Government of the People's Republic of Bangladesh and Others……………Opposite-Parties

 
Judgment
January 10, 2005.
 
Code of Civil Procedure (V of 1908)
Order XXVII, rule 4
Government Pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court and in view of this provision service of processes on the Government Pleader is good service on the Government.
 
Case Referred To-
Government of Bangladesh vs. Ramananda Sarker, 54 DLR (AD) 35.
 
Lawyers involved:
Abdul Haque, Advocate—For the Petitioner.
Feroz Shah, Assistant Attorney-General—For the Opposite Parties.

Revision No. 4415 of 2000.
 
Judgment

 
Afzal Hossain Ahmed J.- This Rule, at the instance of the defendant-respondent-petitioner, is directed against the judgment and decree dated 27-6-2000 and 6-7-2000 respectively passed by the Subordinate Judge, First Court, Mymensingh in Other Class Appeal No. 18 of 1997 reversing those dated 23-11-1996 and 28-11­1996 respectively passed by the Assistant Judge (in-charge), Gouripur in Other Class Suit No. 82 of 1994 dismissing the suit.

2. The plaintiff-appellant-opposite party No. 1 (Government) initiated Other Class Suit No. 82 of 1994 in the Court of Assistant Judge, Gouripur for cancellation of the order pronounced ex parte on 23-6-72 in Miscellaneous Case No. 221 of 1969 by the Subordinate Judge, First Court, Mymensingh and for declaration that the aforesaid order is not binding upon the plaintiff.

3. The plaintiff's case, in brief, is that Government gave compensations on the basis of State Acquisition and Tenancy Act, 1950 and accordingly, during SA operation the suit land was recorded in the name of the Government in khas Khatian No.1 and Government gave settlement of the suit land in the name of different landless cultivators by registered kabuliyat without taking salami and the settlement holders have been possessing the same. Neither the defendants nor their predecessor-in-interest had ever any right, title, interest and possession in the suit land. Abdur Rahim, the predecessor-in-interest of the present defendant, initiated Miscellaneous Case No. 221 of 1969 in the First Court of Subordinate Judge, Mymensingh against the plaintiff Government and without serving notices upon the Government obtained the impugned ex parte order against the Government and that order is not binding upon the present plaintiff-appellant-opposite party No. 1 Ultimately, the Other Class Suit No. 82 of 1994 was dismissed on 23-11-1996 against which the plaintiff Government) preferred appeal before the District Judge, Mymensingh being Other Class Appeal No. 18 of 1997 which was subsequently heard and disposed of by the Subordinate Judge, First Court, Mymensingh allowing the appeal on 27-6-2000 reversing the judgment and decree passed in the aforesaid Other Class Suit No. 82 of 1994.

4. The defendant-respondent-petitioner con­tested the suit by filing a written statement wherein he denied all the material allegations made in the plaint. The defendant's case, in brief, is that there is no cause of action of the suit, the suit is completely barred by limitation, plaintiff has no right, title, interest and possession in the suit land and the plain­tiff has no locus standi to initiate the suit. That the suit land was under the ownership and possession of Gouripur Paurashava and Gouripur Paurashava sold the suit land in auction on 4-1-1960 to one Nripendra Chandra Chakravartty and the Administrative Officer of the Gouripur Paurashava executed and registered a sale deed in favour of the purchaser Nripendra Chandra Chakravartty on 8-9-1960. Thereafter, Nripendra Chandra Chakravartty while possessing the suit land entered into a contact of exchange with Haji Md Abdur Rahim who was a resident of Assam Province. At that time the Defence of Pakistan Rules was promulgated and, as such, Nripendra Chandra Chakravartty could not execute and register the deed of exchange. There­after, Haji Md. Abdur Rahim obtained permission to do the deed from the concerned authority and ini­tiated Other Class Suit No. 1 of 1968 in the Second Court of Munsif (now Assistant Judge), Mymen­singh for specific performance of contract and the suit was decreed. Then Haji Abdur Rahim initiated Other Class Execution Case No.41 of 1968 through which the deed was executed and registered in favour of Haji Abdur Rahim. During SA Opera­tion, the RoR in respect of the suit land was wrongly published in the name of the Government of East Pakistan and with a view to remove the cloud Haji Abdur Rahim initiated Miscellaneous Case No. 221 of 1969 in the First Court of Subordinate Judge, Mymensingh for correction of the RoR. Notices were duly served upon the Government-opposite party No.1 but Government did not contest the case and, as such, the Miscellaneous Case No.221 of 1969 was allowed ex parte on 23-6-1972 and no illegality was committed in obtaining the ex parte order.

5. The aforesaid ex parte order dated 23-6­1972 having been set aside by the impugned judg­ment and decree dated 27-6-2000 passed by the Sub­ordinate Judge, 1st Court, Mymensingh in Other Class Appeal No. 18 of 1997 reversing those dated 23-11-1996 passed by the Assistant Judge (in­ charge) Gouripur in Other Suit No. 82 of 1994 dis­missing the suit the respondent-defendant being aggrieved thereby, has preferred this revisional application and obtained the present Rule.

6. Heard Mr. Md. Abdul Haque, the learned Advocate appearing for the defendant-respondent-petitioner and Mr. Feroz Shah, the learned Assistant Attorney-General appearing for the plaintiff-appellant-opposite party No. 1 (Government) and perused the impugned judgment and decree and/other relevant papers filed along with the revisional application and IC Records.

7. The burning issues to be decided in this case are, whether notices of Miscellaneous Case No. 221 of 1969 were duly served upon the plaintiff-appellant-opposite party No.1 (Government), whether the suit being No. 82 of 1994 is barred by limitation and whether the ex parte order dated 23­6-72 was passed in that Miscellaneous Case lawfully.

8. During trial of the aforesaid suit plaintiff examined only one witness (Tahshilder) and the defendant examined 2 witnesses including himself.

9. PW 1 A Bari, Tahshilder, although disown­ed the fact of service of notices upon the Govern­ment in Miscellaneous Case No. 221 of 1969 but said that he first came to know of the ex parte order dated 23-6-1972 passed in the aforesaid Miscel­laneous Case only on 8-10-76 when the defendant made an application for getting the RoR, in respect of the suit land, corrected in his name. This shows that the fact of the ex parte order dated 23-6-72 passed in Miscellaneous Case No. 221 of 1969 having been known to the Government and its agencies even on 8-10-76 (as deposed by PW 1), the Government, as plaintiff initiated the Other Class Suit No. 82 of 1994 for setting aside that ex parte order dated 23-6-72 only on 19-11-1994 i.e. long after 18 years. On the other side, the defendant No. 1 appearing as DW 1 has asserted that notices of Miscellaneous Case No. 221 of 1969 were duly served upon the opposite party Government. In support of his assertion, he has exhibited the certi­fied copy of the notice and the service report of the process server which are marked in Exhibit 'Kha' series which show that notice of that Miscellaneous Case No.221 of 1969 on the Deputy Commissioner, Mymensingh was received by the AGP for the GP on 29-1-70.

10. Rule 4 of Order XXVII of the Code Of Civil Procedure provides that the Government Pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court and in view of this provision service of processes on the Government Pleader is good service on the Government. This view also finds support from the decision in the case of Government of Bangladesh vs Ramananda Sarker reported in 54 DLR (AD) 35.

11. Considering the evidence of PW 1 and Exhibit Kha series as discussed above I am inclined to hold that the plaintiff-appellant-opposite party (Government) was quite aware of the fact of the impugned ex parte order dated 23-6-72 passed in Miscellaneous Case No. 221 of 1969 since its emergence and, according to PW 1, since 1976 but in spite of that Government filed the suit being No. 82 of 1994 only in 1994 for setting aside the aforesaid ex parte order passed on 23-6-72 which the plaintiff-opposite party (Government) should have initiated within 3 years from the date of his knowledge as per Article 95 of the Limitation Act. So, the suit is found to be hopelessly time barred.

12. Besides the above, it appears from the ex parte order dated 23-6-72 as well as from the LC Record that 23-6-72 was fixed for ex parte disposal of the Miscellaneous Case No. 221 of 1969 as because the opposite-party Government did not take any step to contest the case in spite of service of notices on him and accordingly, on 23-6-72 the Court took up the case for disposal, examined PW 1 Torab Ali, considered the report of the CO (Rev) and the documents marked Exhibits 1 and 2 and the petitioner having made out the case the Court allowed the Miscellaneous Case ex parte. So, I find that the impugned order was passed quite lawfully.

13. It appears from the impugned judgment and decree that the appellate Court below without discussing the evidence on record allowed the appeal reversing the judgment and decree passed by the trial Court in a slipshod judgment holding that the summons were not duly served upon the Government. But from the discussions above it is found that the lower appellate Court made such finding arbitrarily which is not at all based on evidence on record.
14. Considering the facts, circumstances, evidence and the submissions of the learned Advocates of both the sides I find that the appellate Court below passed the impugned judgment and decree allowing the appeal and reversing those of the trial Court passed in Other Class Suit No. 82 of 1994 which has resulted in an error in the decision occasioning failure of justice and, as such, the same cannot be sustained in the eye of law.

15. In the result, the Rule is made absolute without any order as to costs.

16. The impugned judgment and decree dated 27-6-2000 passed by the Subordinate Judge, 1st Court, Mymensingh in Other Class Appeal No. 18 of 1997 are hereby set aside and those dated 23-11-96 of the Assistant Judge (in-charge), Gouripur passed in Other Class Suit No. 82 of 1994 are affirmed.

Stay granted earlier by this Court is hereby vacated.
Ed.