IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.1557 of 2016

In the matter of:

An application under Section 115(1) of the Code of Civil Procedure.

And

Yunus Ali and others

.... Petitioners

-Versus-

Md. Sarpat Ali being dead his heirs- Md. Mohir Uddin and others

.... Opposite parties

Mr. Monzoorul Karim Kazal, Advocate

.... For the petitioners.

Mr. Md. Hasinur Rahman, Advocate

.... For the opposite party Nos.2 and 4.

Heard and Judgment on 08.12.2024

On  an  application  under  Section  115(1)  of  the  Code  of  Civil Procedure this Rule was issued calling upon the opposite party Nos.1-4 to show cause as to why the impugned judgment and decree dated 29.05.2014 passed by the learned Additional District Judge, Kurigram in Other Appeal No.06 of 2010 reversing the judgment and decree dated 30.11.2009 passed by the learned Joint District Judge, 2nd Court (Acting), Kurigram in Other Class Suit No.23 of 1999 should not be set aside and/or pass such other or further order or as to this Court may seem fit and proper.

Facts in short are that the petitioners as plaintiffs instituted Other  Class  Suit  No.23  of  1999  for  partition  seeking  a  separate saham for 2.68 acre land. Above suit was contested by defendant Nos.12-22 and 39 and defendant Nos.23-26 by filling two separate written statements. At trial defendant Nos.1-7 and 27-34 executed a solenama with the plaintiffs. At trial plaintiff examined 1 witness but his cross examination could not be concluded. On the basis of above evidence  the  learned  Joint  District  Judge,  2nd  Court,  Kurigram decreed above suit on contest against above defendants and granted the plaintiffs a separate saham for 9.22 acres.

Being aggrieved by above judgment and decree of the trial Court defendant Nos.12-22 and 39 preferred Other Appeal No.2 of 2010 and defendant Nos.23-26 preferred Other Appeal No.6 of 2010 to the District Judge, Kurigram which were heard by the learned Additional District Judge who by a single judgment allowed above two appeals, set aside the judgment of the trial Court and remanded the suit for retrial.

Being aggrieved by and dissatisfied with above judgment and decree of the Court of appeal below above respondents as petitioners moved to this Court with an application under section 115(1) of the Code of Civil Procedure and obtained this Rule.

Mr.  Monzoor  ul  Karim  Kazal,  learned  Advocate  for  the petitioners submits that the original suit was filed in 1999 and after taking  adjournments  for  a  long  time  the  defendants  submitted  a written statement  in 2001 and after the examination  of PW1 the defendants did not close his cross examination nor they adduced any evidence.

On consideration of above materials on record the learned Joint District Judge rightly decreed the suit on contest. But the learned Judge  of  the  Court  of  Appeal  below  failed  to  appreciate  above materials on record and most illegally allowed the appeal, set aside the judgment and decree of the trial Court and remanded the suit for retrial which is not tenable in law.

On the other hand Mr. Md. Hasinur Rahman, learned Advocate for the opposite party Nos.2 and 4 submits that the learned Joint District Judge disposed of the suit on contest but in fact the suit was not  contested  since  the  defendants  could  not  conclude  the  cross examination  of  PW1  and  adduce  evidence  in  support  of  the respective cases.

On  consideration  of  above  materials  on  record  the  learned Judge of the Court of Appeal below has rightly allowed the appeal and set aside the flawed judgment of the trial Court and remanded the suit for retrial which calls for no interference.

 I have considered the submissions of the learned Advocates for the respective parties and carefully examined all materials on record.

As mentioned above this is a suit for partition and the suit was contested  by  two  sets  of  defendants  by  filling  separate  written statement.  Plaintiff  No.16  gave  evidence  as  PW1  but  his  cross examination could not be concluded by defendant Nos.12-22 and 39 Defendant Nso.23-26 did not cross examine above witness at all. Since PW1 did not withstand the cross examination by the contesting defendants  above  evidence  of  PW1  cannot  be  accepted  as  legal evidence. As such the learned Joint District Judge committed serious illegality in disposing of above suit as contested one on the basis of above incomplete evidence of PW1.

The learned Judge could if he was convinced the defendants were not inclined to get the cross examination of PW1 concluded or adduce their evidence he could fix a date for ex-parte hearing of the suit and then proceed with the same in accordance with law.

In a suit for partition the status of the plaintiff and defendants are  equal  and  since  two  sets  of  defendants  submitted  a  written statements they deserved to cross examination the plaintiff witnesses and adduce evidence in support of their respective claims.

On  consideration  of  above  materials  on  record  the  learned Judge of the Court of Appeal below has rightly allowed the appeal, set  aside  the  flawed  judgment  and  decree  of  the  trial  Court  and remanded the suit for retrial which calls for no interference.

I am unable to find any infirmity or illegality in the impugned judgment and decree passed by the learned Additional District Judge calling for interference by this Court nor I find any substance in this Civil Revision under section 115(1) of the Code of Civil Procedure and the Rule issued in this regard is liable to be discharged.

In the result, the Rule is hereby discharged. The order of status- quo granted at the time of issuance of the Rule is vacated.

However, there is no order as to costs.

Send down the lower Courts record immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER