Present:

    MR. JUSTICE S.M. EMDADUL HOQUE       CIVIL REVISION NO. 2189 OF 2020.

IN THE MATTER OF:

An  application  under  Section  115(4)  of  the  Code  of  Civil Procedure.

- AND -

IN THE MATTER OF:

Rahimuddin  Mohammad  being  dead,  his  heirs;  1.  Md. Sakiuddin and others.

….Defendant-petitioners. -Versus –

Entaz Ali and others.

….Plaintiff-opposite parties.

No one appears.

…..  For the petitioners. Mr. Md. Mubarak Hossain, Advocate with Mr. Md. Shafiqul Islam, Advocate.

…..  For opposite parties.

Heard on: 28.04.2024 and Judgment on: 06.05.2024.

On an application of the petitioners Rahimuddin Mohammad being

died, his heirs; 1. Md. Sakiuddin and others under section 115 (4) of the Code of Civil Procedure the Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and order dated 18.08.2020  passed  by  the  learned  Additional  District  Judge,  3rd  Court, Dinajpur in Civil Revision No. 44 of 2019 rejecting the Civil Revision and thereby affirming the judgment and order dated 24.07.2019 passed by the court of Assistant Judge, Khansama, Dinajpur in Other Class Suit No. 34 of 2005  closing  the  evidence  and  thereby  fixing  the  date  for  argument hearing  upon  rejecting  the  application  for  adjournment  filed  by  the defendant Nos. 1-8 should not be set aside.

Facts  necessary  for  disposal  of  the  Rule,  in  short,  is  that  the predecessor of the opposite parties as plaintiffs instituted Other Class Suit No. 34 of 2005 in the court of Assistant Judge, Khansama, Dinajpur against the defendant petitioner and others for a perpetual injunction.

The defendant Nos. 1-8 entered appear through Vokalatnama and contested the suit by filing written statement.

At the trial the plaintiff side examined two witnesses as P.W.s and then closed their evidence.

Thereafter the defendant side produced three witnesses and the date  was  fixed  for  further  examination  and  cross  examination  of  the D.W.1 and further date was fixed on 24.07.2019 for cross examination of the  D.W.2  and  D.W.3.  On  the  said  date  the  D.W.1  and  D.W.2  were examined  and  they  were  duly  cross  examined  by  the  plaintiff  side. Thereafter the defendant side filed an application for adjournment which was rejected by the trial court and D.W.3 was also called for examination. But  the  said  D.W.3  was  not  present  at  the  court  thus  the  trial  court expunged  his  part  deposition  and  fixed  the  matter  on  01.07.2019  for argument hearing.

Against the said order the defendant side filed Civil Revision No. 44 of 2019 under section 115(2) of the code of civil procedure before the learned District Judge, Dinajpur.

The said revisional application was heard and disposed of by the Additional District Judge, 3rd Court, Dinajpur who after hearing the parties and considering the evidence on record and the facts and circumstances of the case rejected the revisional application by its judgment and order dated 18.08.2020.

Being aggrieved by and dissatisfied with the impugned judgment and  order  of  the  courts  below  the  defendant-petitioners  filed  this revisional application under Section 115(4) of the Code of Civil Procedure accordingly the leave was granted and a Rule was issued.

On the prayer of the learned Advocate of the opposite party the matter was fixed for hearing on 14.01.2014 and come up in the daily cause list for a couple of days but none turned up to press the Rule. Since this revisional application only against an order thus the matter has taken for hearing on merit.

However,  Mr.  Mubarak  Hossain,  the  learned  Advocate  of  the opposite party has appeared and made his submission.

I have heard the learned Advocate of the opposite party, perused the impugned judgment and order of the courts below and the papers and documents as available on the record.

The simple case is that on 24.07.2019 the date was fixed for further examination of the D.W.1 and for cross examination of the D.W.2 and D.W.3  and  defendant  side  filed  Hajira  of  the  D.W.1  and  D.W.2  and accordingly they were cross examined by the plaintiff side. Thereafter, the defendant  side  filed  application  for  adjournment  since  P.W.3  was  not present in the court but which was rejected and the D.W.3 was called on for his cross examination but since he was not present the trial court has expunged his deposition and closed the trial and fixed the next date on 07.08.2019 for argument hearing.

Against the said order the defendant petitioner filed Civil Revision No. 44 of 2019, wherein they claimed that on the said day the father of the D.W.3 was expired and as such he could not appear before the court. The revisional court considering the facts and circumstances of the case took view that the petitioner of the revisional application did not disclose the said facts in the trial court as well as in the revisional application thus upheld the said order of the trial court by its order dated 18.08.2020.

It appears that on the date fixed the defendant side produced two witnesses, D.W.1 and D.W.2 and they were duly cross examined by the plaintiff side, and filed an application for adjournment of the matter since the D.W.3 was not present in the court. The trial court rejected the said application for adjournment and the D.W.3 was called on for his part deposition but he was not present as such the trial court rejected the application  for  adjournment  and  also  expunged  the  deposition  of  the D.W.3. It is my view that since the two P.W.s were examined and cross- examined by the plaintiff side and filed application for adjournment of the part deposition of the D.W.3 in such a case the court may took lenient view and may adjourned the matter but expunged the part deposition of the P.W.3 which seems to be a harsh order.

It appears that the revisional court also took such view that the defendant side failed to explain the said facts sufficiently and did not produce  any  single  evidence  in  support  of  the  death  of  the  father  of D.W.3. Since the defendant side examined two witnesses in such a case it is  better  to  adjourned  the  matter  but  the  trial  court  rejected  the application of the defendant in such a case it is my view that both the courts  passed  the  impugned  order  without  giving  any  scope  to  the petitioner to produce him in the next date. Normally in our country the parties  did  not  disclose  any  false  statement  regarding  the  death  of anyone. It is found that the defendant side disclosed the facts that the father of the D.W.3 died in the aforesaid date at the time of hearing of the revisional application though no document was produced in support of the same. However, in such a case the court should take lenient view. Thus it is better to direct the trial court to dispose of the suit expeditiously giving  scope  to  the  petitioner  to  produce  the  D.W.3  for  further examination.

Considering  the  facts  and  circumstances  of  the  case  and  the discussions as made above I find merit in the Rule.

In the result the Rule is made absolute. The the impugned judgment and  order  dated  18.08.2020  passed  by  the  learned  Additional  District Judge, 3rd Court, Dinajpur in Civil Revision No. 44 of 2019 rejecting the Civil Revision  and  thereby  affirming  those  dated  24.07.2019  passed  by  the court of Assistant Judge, Khansama, Dinajpur in Other Class Suit No. 34 of 2005 is hereby set-aside.

The trial court is directed to dispose of the suit as early as possible preferably within 6 (six) months from the date of receipt of this order giving scope to the defendant side to produce the D.W.3 for examination and also allow the parties to prove their respective cases by adducing further evidence if requires and in accordance with law.  

Communicated the order at once.

M.R.