District:Kishoreganj

In the Supreme Court of Bangladesh

High Court Division

(Civil Revisional Jurisdiction)

  Present

Mr. Justice Md. Zakir Hossain

Civil Revision No. 2860 of 2019 Motiur Rahman

....... Defendant-Appellant-Petitioner

-Versus-

Abdul Ali and others

...... Plaintiff-Respondent-Opposite Parties

Mr.Sharif Uddin, Advocate

...... For the petitioner

 Mr. Biplab Gowsami, Advocate

....... For the opposite parties               

Heard on: 29.11.2023 and 24.01.2024 Judgment on: 07.07.2024

At the instance of the petitioner, the Rule was issued with the following the terms:

“Records need not be called for.

Let  a  Rule  be  issued  calling  upon  the  opposite party  Nos.  1-25  to  show  cause  as  to  why  the impugned judgment and order dated 14.08.2019 passed by the learned Additional District Judge, 3rd  Court,  Kishoreganj  in  Miscellaneous  Appeal No.  100  of  2010  disallowing  the  appeal  and affirming  the  judgment  and  order  dated 24.05.2010 passed by the learned Assistant Judge, Pakundia,  Kishoreganj  in  Miscellaneous  Case (Chani) No. 10 of 2007 should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.”

Facts leading to the issuance of the Rule are inter alia that the predecessor of the petitioner filed an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908, in short, the CPC for setting aside the ex parte decree passed in Other Class Suit No. 72 of 2002 (Partition) which  was  registered  as  Miscellaneous  Case  No.  10  of  2007.  The contention of the petitioner is that no summons had been duly severed upon the defendant No. 11. The case of the opposite parties is that the summons duly served upon the defendant No. 11 of the original suit. Upon hearing, the learned Assistant Judge was pleased to dismiss the Miscellaneous  Case.  Challenging  the  legality  and  propriety  of  the judgment  and  order  of  the  learned  Assistant  Judge,  the  petitioner preferred Miscellaneous Appeal No. 100 of 2010 before the Court of the learned  District  Judge,  Kishoreganj.  After  admitting  the  appeal  and observing all the formalities, the learned District Judge was pleased to transmit the same to the learned Additional District Judge, Third Court, Kishoreganj for disposal. Upon hearing, the learned Additional District Judge  was  pleased  to  dismiss  the  appeal  and  thereby  affirmed  the judgment  and  order  of  the  learned  Assistant  Judge.  Impugning  the judgment  and  order  of  the  learned  Additional  District  Judge,  the petitioner moved this Court and obtained the aforesaid Rule and stay therewith.

Heard the submissions advanced by the learned Advocates of the parties at length and considered the materials on record thoroughly. The convoluted question of law embroiled in this case has meticulously been waded through in order to reach a just decision.

It is well settled that the plaintiff has to prove that the summons was duly served upon the defendant No. 11. On perusal of the evidence on record, the learned Assistant Judge came to the positive finding that the summons was duly served upon the defendant No. 11 of the original suit and the petitioner did not file miscellaneous case within stipulated period of limitation. The learned Additional District Judge after delving into the facts and considering the legal position involved in this case held to the effect that the summons was duly served upon the defendant No. 11. In the case reported in 35 DLR (AD) (1983) 162, it was held:

“Under  Order  IX,  Rule  13  of  the  Code  ,  if summons is not duly served on the defendant, that is  a  good  ground  for  setting  aside  an  ex-parte decree. On a perusal of the relevant provisions of the  Civil  Procedure  Code it  would be apparent that  due  service  of  summons  is  an  essential condition which must be satisfied before the Court can proceed to give a judgment and under Order IX,  Rule  13  if  a  party  satisfies  a  Court  that summons  were  not  duly  served  upon  him,  the Court is bound to set aside an ex-parte decree. In such a case question of knowledge is not at all relevant and ex-parte decree will be set aside even if the defendant had knowledge of institution of a suit. No provision of law could be pointed out by the  learned  Counsel  for  the  respondent  which dispense with the necessity of proper service of summons.”

In this case, since, the summons had been duly served upon the defendant No. 11, therefore, the question of setting aside the ex parte decree passed in Partition Suit cannot be made. It is admitted that the preliminary decree has not yet been made final. It is well settled that the partition suit shall remain pending till final decree is drawn up. The petitioner may file a petition for allocating separate saham, if so advised. The  learned  Assistant  Judge  may  allocate  saham  in  favour  of  the petitioner, if the petitioner is entitled to get the same without infringing the  saham  allocated  in  favour  of  the  plaintiff-opposite  parties.  The petitioner  may  file  a  separate  petition  for  allocating  separate  saham within two months from the date of receipt of copy of the judgment to the  Court  of  the learned  Assistant  Judge,  failing  which,  the  learned Assistant  Judge  shall  proceed  in  accordance  with  law  to  make  the preliminary decree final.   

With the above observation and direction, the Rule is disposed of, however, without passing any order as to costs. The earlier order of stay granted by this Court, thus, stands recalled and vacated.

Let a copy of the judgment be transmitted to the Courts below at once.

...............................................

Md. Zakir Hossain, J

Naser Po