Present:

Mr. Justice Sheikh Abdul Awal

and

Mr. Justice Md. Mansur Alam

First Appeal No. 405 of 2017 In the Matter of:

Memorandum of appeal from the original decree.

-and-

In the Matter of:

Alamgir and others.

                            .....Plaintiff-appellants.

        -Versus-

Shalah Uddin and others

…...Defendant-respondents.

Mr.  Md.  Shamsul  Haque  Bhuiyan, Advocate

……. For the appellants. None appears.

.....For the respondents.

Heard on 22.10.2024, 18.11.2024 and Judgment on 25.11.2024.

Sheikh Abdul Awal, J: 

This appeal at the instance of the plaintiff-appellants is directed  against  the  judgment  and  decree  dated  09.07.2017 (decree  signed  on  13.07.2017)  passed  by  the  learned  Joint District Judge, Narsingdi in Civil Suit No. 89 of 2011 dismissing the suit exparte.

Material facts relevant for disposal of the Rule, briefly, are that the appellants as plaintiffs filed Civil Suit No. 89 of 2011 in

the  Court  of  the  learned  Joint  District  Judge,  Narsingdi impleading the defendants praying the following reliefs:

Defendants entered appearance in the suit and filed written statements denying all the material allegations made in the plaint contending,  inter-alia,  that  the  suit  is  not  maintainable in its present form and manner. The suit is barred by section 42 of Specific Relief Act, the plaintiffs have/had no right, title and possession over the suit land, the plaint case is unspecified and motivated and as such, the suit is liable to be dismissed.

The learned Joint District Judge on the pleadings of the parties framed the following 5 issues for determination.

1. Whether the suit is maintainable in its present form and manner?
2. Whether the suit is barred by limitation?
3. Whether the suit is bad for defect of parties?
4. Whether  the  plaintiffs  have  right,  title,  interest  and exclusive possession over the suit land?
5. Whether the plaintiffs are entitled to get a decree as prayed for?

The defendants after filing the written statement did not turn to contest the suit and thus, the suit was proceeded exparte, vide order dated 27.01.2015.

In this backdrop, the plaintiff side examined 4 witnesses to prove their respective case.

The learned trial Judge by his judgment dated 09.07.2017 dismissed the suit ex parte.

Being aggrieved by the aforesaid impugned judgment and decree  dated  09.07.2017  passed  by  the  learned  Joint  District Judge,  Narsingdi  the  plaintiff-appellants  preferred  this  First Appeal.

Mr. Md. Shamsul Haque Bhuiyan, the learned Advocate appearing for the plaintiff-petitioner in the course of argument at the very outset takes me through the impugned judgment, plaint of the suit, written statements, deposition of witnesses and other materials on record and then points out that in this case it is on record that the plaintiffs by adducing sufficient evidence both oral and documentary proved their title and possession in the suit land and also proved that RS record was wrongly prepared in the name of defendants although the trial court below without considering all these aspects of the case wrongly dismissed the suit  by  exparte  judgment  and  decree  dated  09.07.2017.  He further submits in this case it is on record that the defendants entered  appearance  in  the  suit  and  filed  written  statements although they did not turn to contest the suit. However, at the end of the day the learned Advocate referring an application under Order 41, Rule 23 of the Code of Civil Procedure submits that  since  the  suit  was  dismissed  by  ex  parte  judgment  and decree, the same may be sent back on remand to the trial Court for fresh trial by giving an opportunity to the parties to adduce fresh evidence in support of their respective cases

No one appears for the defendant-respondents.

Having heard the learned Advocate for the appellants and having gone  through  the  materials  on  record  including  the impugned judgment of the trial Court.

On a scrutiny of the record, it appears that in this case the plaintiffs filed the suit for declaration of title and also prayed that  R.S.  record  was  wrongly  prepared  in  the  name  of  the defendants. The defendants entered appearance in the suit and filed  written  statements  denying  all  the  material  allegations made  in  the  plaint  contending,  inter-alia,  that  the  suit  is not maintainable in its form and manner, the suit is barred by section 42 of Specific Relief Act and contents of plaint do not disclose any cause of action. Thereafter, the defendants did not turn to contest the suit. In this backdrop, the suit was proceeded exparte in which the plaintiffs examined in all 4 witnesses to prove their case.  The  learned  Joint  District  Judge,  Narsingdi  by  his judgment  dated  09.07.2017  dismissed  the  suit  exparte.  It  is found from the impugned judgment that the trial Court dismissed the suit mainly on the ground that the plaintiff did not mention any partition between the parties, so there was no mention of their respective shares. The trial court also observed that the plaintiffs  could not  adduce  sufficient  evidence to  prove their exclusive  possession  over  the  suit  land  as  described  in  the schedule of the plaint although it appears from the evidence of PWs that PW-1 stated  in  his  deposition  that  they  have been living in the suit land by constructing homestead and there was amicable settlement between the parties. This witness also stated that- “

” PW-2 also stated that- “

” PW-3 and PW-4

are the witnesses of deed No. 3685 dated 01.04.1987.

On a close perusal of the impugned judgment, it appears that  the  learned  Trial  Judge,  in  fact,  did  not  consider  the evidence of PWs both oral and documentary particularly on the point of possession.  Moreover, in this case  the reasons best known to the defendants as to why they did not turn to contest the  suit  after  filing  written  statement.  In  the  facts  and circumstances  of  the  case  as  revealed  from  the  materials  on record and in view of the submission of the learned Advocate for the appellant, we are of the view that in the interest of justice and to prevent failure of justice it is necessary that this case should be sent back on remand to the trial Court below for deciding the suit afresh allowing the parties to adduce evidence both oral and documentary in support of their respective cases.

In  the  result,  the  appeal  is  allowed.  The  judgment  and decree dated 09.07.2017 (decree signed on 13.07.2017) passed by the learned Joint District Judge, Narsingdi in Civil Suit No. 89 of 2011 dismissing the suit exparte is set-aside without any order as to costs. The case is remanded to the trial Court below for deciding the same afresh in accordance with law and for the said purpose the parties will be permitted to adduce evidence both oral and documentary in support of their case, if so required and thereafter the learned trial Court shall dispose of the suit on

merit in accordance with law.

 In the facts and circumstances of the case there will be no order as to costs.

Send down the LC Records at once. Md. Mansur Alam, J:

I agree.