IN THE SUPREME COURT OF BANGLADESH

    HIGH COURT DIVISION

                  (CIVIL APPELLATE JURISDICTION)

Present:

  Mr. Justice Md. Badruzzaman.

  And

  Mr. Justice Sashanka Shekhar Sarkar

  Civil Rule No. 16 (con) of 2011.

Bilkis Nessa and others.

             ...Petitioners. -Versus-

Mosammat Parveen Akter and others.

   ....Opposite parties

   Mr. Ataul Gani, Advocate

… For the Petitioners

   Mr. Md. Nurul Amin, Senior Advocate

… For the Opposite parties

Heard on: 08.01.2024 and 15.01.2024. Judgment on: 06.05.2024.

Sashanka Shekhar Sarkar, J:

 This Rule, at the instance of the Petitioners was issued calling upon the Opposite Parties No. 1 to 14, 16 to18, 22 to 23 and 50 to show cause as to why the delay of 3057 days in filing Appeal against the judgment and decree dated 30.05.2002 (decree signed on 15.07.2002) passed by the learned Joint District Judge (Additional Court), Narayangonj in Title Suit No. 148 of 2001 should not be condoned.

The facts, relevant for disposal of this Rule, in short are that one Most. Parveen Akhtar, now the Opposite Party No. 1 as Plaintiff, filed a suit for partition claiming saham mentioned in the schedule of the plaint impleading as many as 49 persons as Defendants.

The suit was decreed in part on contest against the Defendant No. 1 to 14, 16, 17, 21, 22 and 49 and exparte against the rest.

In the suit for partition, the predecessor of the petitioners Hazi Tara Miah was impleaded as Defendant No. 23 to whom no summon or notice was served. Tara Miah died on 04.09.2001 and the decree was passed in a preliminary form on 30.05.2002.

After the decree was passed, the heirs of Tara Miah now the present Petitioners were brought on record and a show cause notice for temporary injunction was served upon them on 30.01.2004.

Then the heirs of Tara Miah, the present Petitioners having received the notices for the first time came to know about the exparte decree, then on 24.03.2005 prayed for saham of 7 decimals of land from C. S. Khatian No. 60 of Plot No. 77 purchased by their father from the Defendant No. 1 Shamser Ali vide Kabala No. 2865 dated 10.08.1964 but the same was rejected on 14.05.2005.

The Petitioners thereafter having been wrong advised of the lawyer filed Title Suit No. 235 of 2005 for setting aside the exparte decree against them dated 30.05.2002 in which the Opposite Parties No. 3, 6-9 and 12 filed an application under Order VII rule 11 of the Code of Civil Procedure for rejection of plaint which was rejected on 02.03.2006.

The Opposite Parties being aggrieved by the said order, preferred Civil Revision No. 35 of 2006 before the District Judge, Narayangonj and the learned Additional District Judge, vide order dated 16.10.2006 allowed the application rejecting the plaint of the petitioners.

The Petitioners being aggrieved by the said order dated 16.10.2006 preferred Civil Revision No. 4693 of 2006 and ultimately the Rule issued therein was made absolute vide judgment and order dated 08.06.2007 allowing the Defendants to file a Revision afresh to the Honourable High Court Division. Accordingly, Civil Revision No. 1966 of

2009 was preferred and the Honourable High Court Division vide judgment and order dated 02.05.2010 made the Rule absolute affirming the decision of rejection of plaint of the petitioners.

The Petitioners having been defeated in the said Civil Revision in the High Court Division, went to a legal expert who after perusing of all the documents and legal instruments advised them to file an appeal against the judgment and decree passed in Title Suit No. 148 of 2001 and then the Petitioners after collecting the certified copies of the judgment and decree of Title Suit No. 148 of 2001 came to Dhaka on 22.08.2010 but during preparing appeal it was found that the name of the petitioners left out from the plaint and on 16.09.2010 the petitioners were informed to collect the fresh plaint.

Accordingly, the petitioners applied for certified copies of the plaint on 11.10.2010 and the clerk of the concerned lower court’s Advocate received the said certified copies on 14.10.2010 and handed over to the petitioners on 28.10.2010 and after finally drafting an appeal against the judgment and decree passed in Title Suit No. 148 of 2010 have filed this appeal on 05.12.2010 causing delay of 3057 days.

 The Petitioners being the sole heirs of the Defendant No. 23 of the Suit, whenever came to know about the exparte decree against their father, took recourse in the self same court claiming their saham but unsuccessfully filed a Suit being wrong advised against the exparte judgment and decree passed against their father and subsequently having a constructive advice, they have filed appeal causing delay of 3057 days without any latches or negligence and as such the same is liable to be condoned.

The Opposite Parties appeared in the Rule by filing a Vokalot nama and controverted the statements made in the application for condonation of delay by filing a counter affidavit wherein they contended that the Petitioners, after having failed to have saham from the Trial Court and decree in a suit for setting aside axparte decree, have again filed this appeal against the same exparte decree is not maintainable because against exparte decree as alleged, there are four remedies open for the petitioners which are as follows: 1. Application under Order IX rule 13 of the Code of Civil Procedure 2. Appeal 3. Review and 4. A regular suit for setting aside the decree. As the Petitioners have already exhausted the last forums, there is no more remedies lies for them and as such the delay explained by the petitioners not being the sufficient causes and also not being proper one, should not be considered and the Rule having no merit to consider

at all is liable to be discharged. 

The petitioners during hearing the Rule, submitted some papers and documents like porcha, khatian, sale deeds , rent receipts, receipt

of City Corporation Tax and copy of the electricity bill by way of supplementary affidavit which have not been controverted  by the opposite parties by any counter affidavit. In the supplementary affidavit, the petitioners agitated that their predecessors namely Nobin Dhupi being the owner of 1.41 acres of land of C.S. Plot No. 77 and 78 respectively, died leaving behind his legal heirs. The heirs of Nabin Dhupi namely Abdur Rahim got 70.50 decimals of land and his two daughters namely Gulbahar and Joytun each got 35.25 decimals of land. Gul Bahar died leaving behind one daughter named Sonabanu, one brother Abdur Rahim and one sister Joytun. On the death of Gul Bahar, they all were entitled to have their respective shares as per Muslim Law of Inheritance but Sona Banu alone transferred the entire property of Gul Bahar to one Rup chand. The rest heirs of Gul Bahar, Abdur Rahim

and Joytun, had shares on her property. It has further been contended that Sona Banu illegally transferred 6.88 decimals of land from Plot No. 77, 78 and 25 to the plaintiffs and the plaintiffs of the Suit obtained no right, title and interest in respect of the said land and also contended that Abdur Rahim Dhupi obtained total 82.2 decimals of land from the above Plots as heir of Nabin Dhupi and the heir of Gul Bahar. It has further been contended that Abdur Rahim Dhupi died leaving behind one wife Gouri Bibi, two sons namely Shamser Ali and Rup Chand and two daughters Safor Jan and Elachi who all got their respective shares from Abdur Rahim. In this way the predecessor of the petitioners namely Shamser Ali got share in respect of 30.75 decimals of land from Plot Nos. 77 and 78.

 By the supplementary affidavit, the petitioners also produced a deed of transfer executed by Sona Bahar to Rup Chand on 26.02.1947, a sale deed No. 5942 executed on 23.06.1947 by Md. Ramjan Sawdagor in favour of Shamser Ali, a sale deed No.  172 dated 03.01.1950 executed by Shamser Ali in favour of Rupchand, a sale deed No. 5282 dated 23.06.1960 executed by Bishu Mia and Jamal Miah in favour of Shamser Ali, a Sale deed No. 1279 dated 27.03.1964 executed by Shamser Ali in favour of Bishu Miah and Abdur Ali and the certified copy of the sale deed No. 2865 dated 10.08.1964 executed by Shamser Ali in favour of Tara Miah in respect of 7 decimals of land out of 55 decimals of C.S. Plot No. 77.

By the supplementary affidavit, the petitioners produced some rent receipts, Municipal tax and electricity bills. The petitioners by the supplementary affidavit also produced a deed of Heba-bil-awaj executed by Tara Miah in favour of the petitioners. The opposite parties did not controvert the contention of the supplementary affidavit of the petitioners by filing counter affidavit.

Mr. Md. Ataul Goni, the learned Advocate appearing for the petitioners submits that the father of the petitioners Tara Miah purchased 7 decimals of land from C.S. Plot No. 77 of C.S. Khatian No. 60 from Shamser Ali who inherited the same from his father, mother as per Muslim Law of Inheritance. Shamser Ali was the owner of 35.5 decimals of land of C.S. Plots No. 77 and 78. The father of the petitioners, after purchasing the land from him, got possession and accordingly erected pucca construction thereon and have been in possession by paying rents, Municipal tax and also having electricity and gas connections from the authority concerned. Mr. Goni submits that the plaintiffs filed the suit for partition impleading the father of the petitioner Tara Miah as Defendant No. 23 to whom they did not serve any notice or summons. During pendency of the said suit, Tara Miah died and after his death the suit was decreed in a preliminary form and subsequently when a show cause notice was issued to them for eviction, for the first time, they came to know about the decree passed exparte against their father. The petitioners having known about the decree prayed for 7 decimals of land in their saham from C.S. Plot No. 77 as was purchased by their father from the recorded tenant Shamser Ali. The Trial Court without taking into consideration of the documents submitted before it rejected the application. The petitioners thereafter being ill advised filed a suit for setting aside the exparte decree against which some of the defendants filed an application under Order VII rule 11 of the Code of Civil Procedure for rejection of the plaint and the same was ultimately rejected by the High Court Division on the ground of Res judicata. Mr. Ataul Goni very strenuously submits that the petitioner’s father Tara Miah, during his life time, transferred the land in question in their favour by way of Heba-Bil-Ewaz and accordingly, they have been in possession since long paying rents to the Government and having other facilities as time to time given by the Municipal Authority. Mr. Goni also submits that the decree passed exparte against their father was totally beyond their knowledge and whenever they came to know about the matter, approached the court

to have their saham in a lawful manner and also having been defeated there, again having advised by the lawyer filed a suit for setting aside the exparte decree but in doing so, they did not commit any latches or negligence. The petitioners were all through in the recourse of law to have the relieves against the exparte decree. Mr. Goni also submits that whenever the matter came to the knowledge to the petitioners, they without any negligence approached the court and remained continuous active of having relieves travelling door to door to the courts but having failed, have filed an appeal causing the alleged delay which was totally unintentional and the delay caused in preferring appeal should be construed and considered was done on sufficient cause. Mr. Goni lastly submits that the Trial Court in dealing the application under Order VII rule 11 of the Code of Civil Procedure did not properly consider the case of the petitioners and the petitioners having been ill advised filed a suit challenging the exparte decree which was rejected as barred by Res judicata. Thereafter having no other alternatives to have remedies, they have been compelled to file the appeal without any latches, negligence, intentional and inordinate delay because the petitioners were all through in a legal course which means the petitioners have had no intention to cause delay in filing appeal and as such the same should be condoned for the ends of justice.

On the other hand, Mr. Md. Nurul Amin, the learned Senior Counsel opposing the Rule very strongly submits that the petitioners, to have the relief and saham approached to the Trial Court which was rejected against which, they did not move to the appellate court. Thereafter the petitioners again challenged the said decree by filing a suit which on application under Order VII rule 11 of the Code of Civil Procedure was rejected against which also did not move to the Higher Court means, the avenue opened for relives against an exparte decree have been exhausted and as such no plea of sufficient cause of the petitioners as have been stated in the application is sustainable in law and the delay so caused in filing the appeal having no reasonable acceptability and being hopelessly barred by limitation, the Rule should be discharged. Mr. Amin in support of his submissions cited so many decisions of our jurisdiction namely; Md. Wasiq Khan-vs- Md. Sabiq Khan reported in 31 DLR (AD) 51, Sajeda Khatoon-vs- Mostafa Khatun reported in 28 DLR 221, Atul Chandra Das-vs- Bhagoboti Das reported in 18 DLR (Dhaka) 81, Latifa Khatun and others-vs-Md. Idris and others reported in 11 BLC 353 and Shaha Mohammad-vs- Gulshan and another reported in 22 DLR (SC) 102.

We have patiently heard of both the parties at length, perused

the application for condonation of delay and the counter affidavit of the opposite parties, and also perused some documents submitted by the petitioners by way of supplementary affidavit and consulted the decisions cited by Mr. Goni and Mr. Nurul Amin.

The spirit and objectives of the law of limitation is to make the interested litigant so prompt to seek redress against the injury and lose

he received. The law of limitation frustrates the disinterested litigant but never frustrates the right to redress of active litigants of no habit of negligence, procrastination & laxity. The respective statutory law is rigid by its born character but should be flexible on the perspective of the fact and circumstances of the case. The case facts revealed that the parties were active in all through the time to have redress where no negligence, procrastination and laxity was done rather, for remedies moved here and there which indicates sufficient bona fide cause existed [Ref. 25 DLR 254]. A proper advice can cure the problems but an inproper advice makes the problems critical. A critical patient under a novice doctor is not saved as is saved under an experienced doctor. Most of the land litigants in our country are poor and layman. They generally be advised by novice and unexperienced persons on law. The case fact reveals that the petitioners one after another changed their routes as and when were advised means totally ignorant about law but all have been done bona fide. The suit was filed in 2001 and was decreed in 2002 within one year. The petitioners having received show cause notice for the first time came to know about the decree on 31.01.2004 and thereafter they prayed for saham on 24.03.2005. The time from 24.03.2005 to 02.05.2010 have been exhausted in the proceedings of two separate courts to have reliefs in a bona fide manner. The petitioners on 03.05.2010 applied for certified copies of the judgment and decree impugned and collecting the same and preparing the appeal filed the suit. So the time consumed from the date

of having knowledge of the exparte decree and to move different courts for having reliefs were in the  recourse of law.  The time consumed from 31.01.2004 to 02.05.2010 during recourse of law should not be amounted as negligence, procrastination, laxity and inactivities. The time from 03.05.2010 to up to the date of filing appeal consumed for collecting certified copies and preparing appeal also very

much reasonable. So on considering these aspect, the delay caused in filing appeal should not be amounted as negligence, procrastination, laxity and inactivities of the petitioners.

It is pertinent to observe that the petitioners when failed to have saham in the trial court, did not appeal to its appellate authority, as well as when the plaint of the suit was rejected also did not challenge its propriety to the Higher Authority. So the petitioners have not exhausted the avenues as they ought to have done against the said decisions and on the above perspective it should not be said that as all the above were done on wrong advise and wrong forum are entitled to have the delay condoned. But, we have an anxiety when having gone through the documents of title submitted by the petitioners before us by way of supplementary affidavit and

have been noticed that earlier the courts to which the petitioners moved to have reliefs did not consider some documentary evidences because in a suit for partition both the parties have equal status to have reliefs. It cannot be said that after decree is passed, specially in a suit for partition, the doors of the claimants are closed. It is noticed from the decisions of the earlier courts that the claim/ saham of the petitioners were rejected merely on technical grounds not considering the documents of title and other factual aspect.

We have very meticulously perused the documents submitted before us by the petitioners by way of supplementary affidavit as stated above. It transpires that the claim of the petitioners are from their father by way of Heba-Bil-Ewaj who obtained the same by way of sale deed No. 2865 dated 10.08.1964. On the face of the documents above mentioned, it transpires that Shamser Ali inherited properties from C.S. Plot Nos. 77 and 78 of C.S. Khatian No. 60 and he executed a transfer deed infavour of Tara Miah, the predecessor of the petitioners, in respect of 7 decimals of land out of said land on 10.08.1964. Whether Shamser Ali obtained the property from his predecessors at all and whether Shamser Ali had transferred the property to the father of the petitioners and whether Sonabanu had sellable right

of entire property of Gulbahar are all really controversial and should be settled upon both oral and documentary evidences. The documents as have been submitted by the petitioners by way of supplementary affidavit requires to be examined and adjudicated.

Our Apex court, in the case of Government of Bangladesh vs. Abdus Sobhan and others reported in 73 DLR (AD) 1 while adjudicating the matter on condonation of delay held that “the court should decide the matter on merit unless the case is hopelessly without merit.”

As we have found from the records submitted before us that there  is  a  prima  facie  case  of  the  petitioners  claimed  to  have obtained land from Shamser Ali, Defendant No. 01 of the suit and claimed saham from C.S. Plot No. 77 of Khatian No. 60. But the picture of claim by dint of produced documents was neither at all taken into consideration by the trial court in respect of saham nor in a suit for setting aside the decree exparte and as such, we, on considering of the above facts as a whole and circumstances and materials on record of the case are of the view that the alleged

delay of 3057 days caused in filing appeal against the judgment and decree of Title Suit No. 148 of 2001 was without any negligence, procrastination, laxity and inactivities of the petitioners and the same be construed as sufficient causes of delay of filing the appeal, which should be condoned.

Accordingly, we find merit in the Rule.

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

The delay of 3057 days in filing appeal against the judgment and decree dated 30.05.2002 passed in Title Suit No. 148 of 2001 is condoned.

The office is directed to register the appeal accordingly.

(Mr. Justice Sashanka Shekhar Sarkar)    I agree.

                 (Mr. Justice Md. Badruzzaman)