Case No: Civil Order No. 1249 of 1987
Judge: Latifur Rahman ,
Court: Appellate Division ,,
Citation: 40 DLR (1988) 16
Case Year: 1988
Appellant: Zahirul Alam
Respondent: Manindra Nath Thakur
Subject: Procedural Law,
Delivery Date: 1987-10-25
High Court Division
Latifur Rahman J
Manindra Nath Thakur
October 25, 1987.
Code of Civil Procedure (V of 1908)
The learned Assistant Judge set aside the order of dismissal under section 151 CPC.
Order 9 Rule 9
The petitioner contended that the learned Assistant Judge acted wrongly in allowing the application when there is specific provision under Order 9, rule 9 of CPC.
M.L. Bhowmick - For the petitioner.
Not Represented – the Opposite Party.
Civil Order No. 1 249 of 1987
Latifur Rahman J.
In the application under section 115 of the Code of Civil Procedure, the defendant petitioner has challenged order No. 39 dt. 27.7.87 passed by the Assistant Judge, Kashiani, District Gopalganj in allowing an application under section 151 of the Code of Civil Procedure in title suit No. 134 of 84 and restoring the suit to its file and number.
2. It appears that the suit was fixed for hearing on 26.7.87 and the plaintiff filed an application for time and the same was rejected and the suit was dismissed for default. Thereafter, the plaintiff filed an application under Section 151 of the Code of Civil Procedure for setting aside the earlier order of dismissal and for restoration of the suit. The learned Assistant Judge allowed the application under section 151 of the Code and restored the case to its file and number.
3. Mr. M. L. Bhowmick, the learned Advocate appearing for the petitioner, submits that the learned Assistant Judge acted wrongly in allowing the application under section 151 of the Code when there is specific provision under Order 9, rule 9 of the Code of Civil Procedure for restoration of the suit.
4. Heard the learned Advocate and perused the impugned order. The learned Assistant Judge has exercised his discretion and allowed the application under section 151 of the Code which was filed just one day after passing of the dismissal order. The learned Assistant Judge having exercised his discretion in the matter I do not like to interfere with the same. Section 115 of the Code of Civil Procedure authorises the Court to interfere into the interlocutory order passed by the courts below for securing the ends of justice.
5. The Court has passed the impugned order and this court will not interfere that the impugned order has been passed in furtherance of seeking the ends of justice. I refrain from interfering with the impugned order. Consequently this application is summarily rejected.