IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 325 OF 2009

IN THE MATTER OF:

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

-And-

IN THE MATTER OF:

Mosammat Mohoki Begum and others

--- Plaintiff-Respondent-Petitioners. -Versus-

Md. Lokman Ali and others

---Defendant-Opposite Parties.

Mr. Md. Shahadat Tanveer Amin, Advocate

--- For the Plaintiff-Respondent-Petitioners. Mr. Md. Bazlul Kabir, Advocate

---For the Defendant-Opposite Parties.

Heard  on:  29.03.2023,  03.05.2023, 17.05.2023 and 31.05.2023.

Judgment on: 31.05.2023.

At  the  instance  of  the  present  plaintiff-respondent- petitioners, Mosammat Mohoki Begum and others, this Rule was issued upon a revisional application filed under section 115(1) of the Code of Civil Procedure calling upon the opposite party Nos. 1-9 to show cause as to why the impugned judgment and order complained of in the petition moved in this court should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the predecessor of the present petitioners as the plaintiffs filed the Title Suit No. 27 of 1992 against the predecessor of the defendant-opposite  parties  who  are  applicants  of  the Miscellaneous Case No. 45 of 1993 claiming that the Sumons of the Title Suit No. 27 of 1992 was duly served upon the defendant No. 1, namely, Mosammat Umezannesa on 28.07.1992 but since then the defendant No. 1 did not appear to contest the suit and the  suit  was  decreed  exparte  on  16.11.1992  by  the  then Subordinate  Judge  (now  Joint  District  Judge),  Court  No.  1, Chapai Nawabganj. In the Miscellaneous Case No. 45 of 1993 the present opposite parties claimed that no notice was served upon them, as such, they could not appear in the court to contest the case, therefore, an exparte decree was passed against the present  opposite  parties.  Challenging  the  said  exparte  decree passed  by  the  then  Subordinate  Judge,  Court  No.  1,  Chapai Nawabganj they filed the Miscellaneous Case No. 45 of 1993 under Order 9 rule 13 of the Code of Civil Procedure which was heard  by  the  learned  Subordinate  Judge  (now  Joint  District Judge),  Court  No.  1,  Chapai  Nawabganj  in  presence  of  the present  plaintiff-petitioners  who  passed  an  order  in  the miscellaneous case by his judgment and order dated 24.09.2003 by rejecting the application filed under Order 9 rule 13 of the Code of Civil Procedure.

Being  aggrieved  the  present  defendant-opposite  parties preferred an appeal being the Miscellaneous Appeal No. 41 of 2003  in  the  court  of  the  learned  District  Judge,  Chapai Nawabganj which was heard by the learned Additional District Judge, Chapai Nawabganj who allowed the appeal and thereby reversed the judgment and order dated 25.09.2008. Challenging the said judgment and order passed in the Miscellaneous Appeal No. 41 of 2003 this revisional application was filed and this Rule was issued thereupon.

Mr. Md. Shahadat Tanveer Amin, the learned Advocate, appearing for the plaintiff-petitioners submits that the Summons of  the  Title  Suit  No.  27  of  1992  was  duly  served  upon  the defendant No. 1 Mosammat Umezannesa on 28.07.1992 at the presence of her sons, namely, Md. Lokman Ali (PW.1) and Md. Hashimuddin (PW.3) and the defendant No. 1 and her two sons gave their signatures upon the report of service of Summons.

The  Rule  has  been  opposed  by  the  present  defendant- opposite parties.

Mr. Md. Bazlul Kabir, the learned Advocate, appearing on behalf of the defendant-opposite parties submits that the Title Suit No. 27 of 1992 was filed before the learned trial court by the present petitioners as the plaintiffs but during the hearing of that suit no notice was served upon the defendant-opposite parties, as such,  the  suit  was  decreed  exparte  without  giving  any opportunity to contest the suit by the defendant-opposite parties, as  such,  the  opposite  parties  as  the  defendants  have  been deprived  of  their  right  of  the  suit  which  caused  occasioning failure of justice, therefore, the Rule is liable to be discharged.

Considering the above submissions made by the learned Advocates appearing on behalf of the respective parties and also considering  the  revisional  application  filed  by  the  present plaintiff-petitioners under section 115(1) of the Code of Civil Procedure along with the annexures therein, in particular, the impugned judgment and order passed by the learned appellate court  below  allowing  the  appeal  and  thereby  reversing  the judgment and order of the learned trial court, it appears to this court that the present petitioners as the plaintiffs originally filed the Title Suit No. 27 of 1992 praying for a title upon the suit land measuring 17.17 acres situated at Mouza- Omritapur, Settlement Khatian No. 1-4, S. A. Khatian No. 50, Present Khatian No. 11, Present Dag Nos. 5 and others, Police Station- Nachol, District- Chapai Nawabganj.

Under the required position of law, the Summons of the title suit is to be served upon the present defendant-opposite parties. There are some disputes between the parties as to the title appearing  in  the  said  title  suit.  The  court  sent/served  the Summon  notice  to  the  defendant-opposite  party,  namely, Mosammat  Umezannesa  on  28.07.1992  but  she  did  not get/receive any Summons. The learned Advocate for the present plaintiff-petitioners submitted that notices were properly served upon the defendants and the learned trial court took the matter for hearing exparte on the basis of the notice was served, on the other hand, the defendant-opposite parties tried to prove in the court that the notices were not served which has been caused the opposite parties to take part hearing of the title suit. The learned trial court being satisfied continued the case on the basis that the defendants properly received the notice which has been proved by the depositions and the documents filed in the court, as such, the exparte decree was passed on 16.11.1992. As per the record the notice was properly served.

Being  aggrieved  the  present  defendant-opposite  parties preferred the Miscellaneous Appeal No. 41 of 2003 challenging the judgment and order passed by the learned trial in such a situation in the absence of the present opposite parties. Being aggrieved  the  present  defendant-opposite  parties  filed  a Miscellaneous Appeal No. 41 of 2003 challenging the legality of the judgment and order passed exparte by the learned trial court. The learned Additional District Judge, Chapai Nawabganj heard the  appeal  and  decreed  the  appeal  in  favour  of  the  present opposite parties by allowing the appeal and thereby reversing the judgment and order dated 24.09.2003 by passing the judgment and decree dated 25.09.2008 and ordering to continue with the Title Suit No. 27 of 1992 by the learned trial court.

Being aggrieved the present plaintiff-petitioners filed this revisional application under section 115(1) of the Code of Civil Procedure and obtained the Rule thereupon.

It is to be mentioned that the learned appellate court below allowed  the  appeal  and  decreed  the  suit  on  the  ground  that Summon was served duly in the Title Suit No. 27 of 1992 to the defendant No. 1 Mosammat Umezannesa on 28.07.1992 at the presence  of  her  sons  Md.  Lokman  Ali  (PW-2  and  Md. Hashimudding (PW-3) since appeal has been preferred within 30 (thirty) days, as such, the case is not barred by law. The present plaintiff-petitioners  obtained  the  Rule  by  impugning  the judgment and order passed by the learned appellate court below.

This court has to take a decision whether the decree is valid or not. In order to take a decision I have examined the judgment and order passed by the learned appellate court below. I  consider  that  there  are  conflicting  submissions  and  the depositions by the witnesses. This court has to take a decision that  the  appeal  was  filed  by  the  present  plaintiffs  as  the petitioners obtained the exparte decree against the defendants. The settled principle is that once a suit is filed the court must ensure  the  service  of  notice  upon  the  defendants  in  order  to adjudicate the case in the presence of both the parties. I also consider  that  the  plaintiffs  and  the  defendants  are  some  in disputes about the service of notice was served to the defendant- opposite parties or not. This issues must be decided by the courts below  after  considering  the  evidence  documentary  and  oral obtained  from  both  the  parties.  In  the  instant  case  one  PW deposed as PW-1 only and the learned court took a decision to pass the decree exparte. As such, the defendant-opposite parties

filed  this  miscellaneous  case  but  the  learned  trial  court  after hearing the parties the miscellaneous case was rejected on the basis of the following findings:

…“¢h hQÉ ¢hou ew- 3 Hl B m¡Qe¡u fË¡b£Ñl fË¢a 28.07.1992 Cw a¡¢l­M Ax fËx 27/92 ew ®j¡LŸj¡u kb¡l£¢a pje S¡l£ qC a ®c¢Mu¡¢Rz ®j¡LŸj¡¢V 16.11.1992 Cw a¡¢l­M HLalg¡ p§­œ ¢Xœ²£ qJu¡l fl fË¡b£Ñ 22.06.1993 Cw a¡¢l­M 216 ¢ce fl Aœ R¡¢e ®j¡LŸj¡ c¡­ul L¢lu¡­Rez Øføax  R¡¢e clM¡Ù¹¢V a¡j¡¢c a h¡¢laz Hja¡hÙÛ¡u, Bj¡l A¢ija qCm, ®j¡LŸj¡¢V a¡j¡¢c­a h¡¢la Hhw fË¡b£Ñ a¡q¡l ®j¡LŸj¡ fËj¡Z L¢l­a hÉbÑ qCu¡­Rez g­m, ®j¡LŸj¡¢V haÑj¡e BL¡ l lrZ£u e q Hhw fË¡b£Ñ fË¡¢bÑa j a fË¢aL¡l

f¡C a f¡ l e¡z”…

On the other hand, the learned appellate court below took a decision to allow the appeal after hearing both parties on the basis of the following findings:

…“pje l£¢aja S¡l£ e¡ qJu¡u HLalg¡ ¢Xœ²£l ¢hou

S¡e¡l a¡¢lM 17.06.1993 Cw q a 30 (¢œn) ¢c­el j­dÉ (22.06.1993) Cw a¡¢lM j¡jm¡¢V c¡ ul Ll¡u a¡j¡¢c BC el fËbj afn£ ml 164 Ae¤ µRc Ae¤k¡u£ ¢edÑ¡¢la 30 ¢c el j dÉ j¡jm¡¢V Be£a qJu¡u a¡ a¡j¡¢c h¡¢la euz g­m ¢h‘ k¤NÈ ®Sm¡ SS LaѪL fËcš a¢LÑa B cn lcl¢qa ®k¡NÉz ¢h hQÉ ¢houpj§q Bf£mL¡l£ f r ¢eØf¢š Ll¡ ®N­mz”…

On  the  basis  of  these  2  (two)  conflicting  findings  and decisions by the learned courts below this court has to take a decision whether the trial court passed a decree in the Title Suit No. 27 of 1992.

In  this  regard,  I  have  carefully  examined  the  decision taken in the Title Suit No. 27 of 1992 to ensure whether the notices were served upon the defendant-opposite parties before passing an exparte decree which caused the defendant-opposite parties to file a miscellaneous case under the provisions of Order 13 of the Code of Civil Procedure  which gives a court to a decision as to setting aside the decree passed exparte.

This provision of law empowers a court to set aside an exparte decree when there is a question of service of notice for any sufficient cause which prevented a party to appear in the suit. In the instant case, the defendant-opposite parties could produce some evidence as to the non-service of notice upon the party. However, the present plaintiff-opposite parties contradicted the submission made by the learned appellate court below which allowed the title appeal by reversing the judgment of the learned trial court. In such a situation, the learned appellate court below took a proper decision by imposing a fine of Tk. 3,000/- and allowing the appeal. As such, I am not inclined to interfere into the judgment and order passed by the learned appellate court below by passing the impugned judgment and order. I, therefore, of an opinion that this is not a proper case for interference from this court.

Accordingly, I do not find merit in the Rule.

In the result, the Rule is hereby discharged.

The  interim  order  passed  by  this  court  at  the  time  of issuance  of  this  Rule  staying  the  operation  of  the  impugned judgment and order passed by the learned appellate court below and subsequently the same was extended till disposal of this Rule are hereby recalled and vacated.

The  learned  Joint  District  Judge,  Court  No.  1,  Chapai Nawabganj  as  the  trial  court  is  hereby  directed  to  allow  the parties to hear and also to produce evidence in respect of both the plaintiffs and the defendant-opposite parties in order to come to a lawful conclusion and decision.

Accordingly,  the  learned  trial  court  being  the  then Subordinate Judge, Court No. 1, Chapai Nawabganj is hereby directed to continue and conclude the hearing of the Title Suit No. 27 of 1992 within 8 (eight) months from the date of receipt of this judgment and order without serving any notice upon the parties as both the learned Advocates and the parties have taken responsibility from this court to appear at the time of the hearing of this case in the trial court in order to take a decision on merit. The learned trial court also hereby directed not to allow any unnecessary adjournment from either of the parties.

The concerned section of this court is hereby directed to communicate this judgment and order to the learned trial court immediately.