Present:-

Mr. Justice Mahmudul Hoque

Civil Revision No. 1706 of 2020

Abdul Mohammad Salem Jamadar

    ... Petitioner -Versus-

Moslehuddin and others

...Opposite-Parties

Mr. Md. Alamgir, Advocate for

Mr. Md. Jahangir Kabir, Senior Advocate

   ...For the Petitioner Mr. Suprokash Datta, Advocate

...For the Opposite-Party Nos. 2-9.

Judgment on 12th November, 2024.

On an application under Section 115(1) of the Code of Civil Procedure this Rule was issued at the instance of the petitioner calling  upon  the  opposite parties  to  show  cause  as  to  why  the impugned judgment and order No. 22 dated 23.07.2020 passed by the learned Additional District and Sessions Judge, Charfashion, Bhola in Title Appeal No. 70 of 2017 rejecting the application under Section 151 of the Code of Civil Procedure for restoration of the appeal should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

Shorn of unnecessary details, fact of the case lies in a very narrow compus. The petitioner, as plaintiff, instituted Title Suit No. 361 of 2008 against the opposite-parties, as defendant in the Court of Senior Assistant Judge, Charfashion, Bhola for a declaration of title in the suit property. The trial court after hearing dismissed the suit by its judgment and decree dated 24.07.2017. Thereafter, the plaintiff preferred Title Appeal No. 70 of 2017 before the appellate court.  Eventually,  the  appeal  was  transferred  to  the  learned Additional  District  Judge,  Bhola  for  disposal  before  whom  the appellant sought adjournment for hearing but the court rejected the prayer. Being apprehended that they will not get justice before that court filed Miscellaneous Case No. 13 of 2020 for withdrawal of Title Appeal No. 70 of 2017 and to transfer the same to any other court of competent jurisdiction for disposal. Learned District Judge, Bhola heard the application and after hearing by its order dated 05.03.2020 admitted the same, called for the records and passed an order staying further proceeding of the appeal. Said order was duly communicated to the court of learned Additional District Judge, Charfashion,  Bhola who  received the  same  on 11.03.2020. The appeal  was  fixed  for  hearing  on  12.03.2020.  On  that  date  the appellant  filed  an  application  praying  for  adjournment  on  the

Unfortunately  said  application  for  adjournment  was  not moved by the learned Advocate. Consequently, the appellate court rejected the application as being not moved by the appellant and took the matter for hearing and after hearing the learned Advocate for the respondent dismissed the appeal. Thereafter, the appellant field  an  application  under  Section  151  of  the  Code  of  Civil Procedure on 23.07.2020 praying for re-admission of the appeal in its  original  position  and number.  The appellate  court  heard  the application  and  by  the  impugned  judgment  and  order  dated 23.07.2020 rejected the same. At this juncture, the petitioner moved this Court by filing this revisional application under Section 115(1) of the Code of Civil Procedure and obtained the present Rule and order of status-quo.

Mr. Md. Alamgir, learned Advocate appearing for Mr. Md. Jahangir Kabir, learned Senior Advocate for the petitioner submits that when an application under Section 24 of the Code of Civil Procedure  was  field  before  the  learned  District  Judge,  Bhola praying for transfer of the Title Appeal No. 70 of 2017 from the court of learned Additional District Judge and the learned District Judge passed an order calling for records staying further proceeding of the appeal and duly communicated to the learned Additional District Judge on 11.03.2020 the appellate court below ought not to have  taken  the  appeal  for  hearing  on  the  following  day  on 12.03.2020. He submits that the appellate court below intentionally disregarded the order of the superior court by taking the appeal for hearing on  the  following day  after  receipt of the order of stay passed by the learned District Judge. He submits that on the date fixed  however,  the  appellant  field  an  application  seeking adjournment on the ground of engagement of the learned Advocate in Bar Association election. The appellate court in total disregard to order of stay of the leaned District Judge intentionally took the matter for hearing at 4.30 P.M. and rejected the application and dismissed the appeal after hearing the respondents.

He submits that when application for adjournment is rejected by the court, the court ought to have given a direction to the learned Advocate for the appellant to get prepared himself for hearing of the  appeal.  In  that  case,  the  court  can  took  up  the  matter  for hearing, but in this instant appeal no such time was given to the appellant. Apart from this the appellate court in the absence of appellant can pass only order dismissing the appeal for default. But in the instant appeal the appellate court illegally heard the learned Advocate for the respondents and dismissed the appeal on merit, which the appellate court cannot do under Rule 17 of Order 41 of the Code of Civil Procedure.

He finally submits that in this situation when the appellate court came to know that the proceeding was stayed by the learned District Judge on 05.03.2020 and received the order by him on 11.03.2020 he ought to have re-admit the appeal on his own motion correcting his own wrong, but the conduct of the learned appellate court was intentional and rejection of application under Section 151 of the Code of Civil Procedure is palpably illegal, as such, the impugned judgment and order is liable to be set aside.

Mr. Suprokash Datta, learned Advocate appearing for the opposite-parties submits that the appellant in his application for adjournment suppressed the fact of filing miscellaneous case before the learned District Judge and passing order of stay for which the appellate court was not aware of the fact of order of stay. He further submits that in the application under Section 151 of the Code of Civil  Procedure  for restoration  of  the  appeal  the  appellant  also intentionally suppressed the fact of filing miscellaneous case under Section 24 of the Code of Civil Procedure and order passed therein by  the  learned  District  Judge.  Moreover,  when  an  appeal  was dismissed for default or disposed of ex parte only procedure to be followed  by  the  appellant  either  by  filing  an  application  under Order 41 Rule 19 or Rule 21 of the Code. But in the instant case, the appellant instead of taking recourse to such provision of law for the reason best known to him filed an application under Section 151 of the Code praying for restoration of the appeal, but there is no provision in the Code for restoration of the appeal under Section 151 of the Code of Civil Procedure.

He finally submits that the appellant ought to have preferred this revision against the judgment and decree dated 12.03.2020 by which the appeal was dismissed by the appellate court. But instead of  filing  revision  against  the  order  of  dismissal,  filed  revision against the order rejecting the application under Section 151 of the Code of Civil Procedure which was not passed by the appellate court in violation of any law, as such, the appellate court committed no error in the decision occasioning failure of justice, hence, the Rule is liable to be discharged.  

Heard the learned Advocates of both the parties, have gone through the revisional application, application filed by the appellant seeking adjournment, application under Section 151 of the Code, judgment and decree dated 12.03.2020 and the impugned judgment and order passed by the appellate court in Title Appeal No. 70 of 2017.

Facts of the case need not be repeated. It is facts that the petitioner, as plaintiff, filed Title Suit No. 361 of 2008 for a decree of  declaration  of  title  which  was  dismissed  by  the  trial  court. Thereafter, he preferred Title Appeal No. 70 of 2017 before the learned  District  Judge,  Bhola.  Eventually,  the  said  appeal  was transferred  to  the  Court  of  learned  Additional  District  Judge, Charfashion, Bhola for hearing and disposal wherein, the appellant took  adjournment  one  after  another.  At  a  point  of  time,  the appellant apprehended that he will not get proper justice before that court, consequently, he filed Miscellaneous Case No. 13 of 2020 under  Section  24  of  the  Code  of  Civil  Procedure  praying  for transfer of the said appeal from that court to any other court of competent  jurisdiction.  Learned  District  Judge  accepted  the application and by order dated 05.03.2020 called for the records and  stayed  further  proceeding  of  the  appeal.  From  Annexure-I, information slip, it appears that the order of the learned District Judge was duly committed to the court concerned who received the same on 11.03.2020. After receipt of the order of stay the learned Additional District Judge ought to have sent the records to the learned District Judge, but instead of sending the records, on the following day i.e. on 12.03.2020 learned Additional District Judge took the matter for hearing, however, the appellant also filed an application seeking adjournment. The appellate court rejected the application for time as none moved the same. Thereafter, took the appeal for hearing and in the absence of the appellant heard the learned  Advocate  for  the  respondents  and  after  hearing  by  the

judgment and decree dated 12.03.2020 dismissed the appeal on merit. Thereafter, the appellant filed an application under Section 151  of  the  Code  of  Civil  Procedure  praying  for  restoration/re- admission of the appeal. Said application was also rejected by the impugned  judgment  and  order  observing  that  the  reason  for dismissal  of  the  appeal  has  been  clearly  stated  in  the  order  of dismissal dated 12.03.2020.

As per provision of law an appeal cannot be disposed of on merit upon hearing the learned Advocate for the respondents. If the appellant found absent on the date fixed, only scope lies with the appellate court to dismiss the appeal for default, but in the instant case the appellate court in one hand disobeyed the order of the superior court, took the matter for hearing, rejected the application for time and on the other hand, dismissed the appeal after hearing the learned Advocate for the respondents which is total violation of Order 41 Rule 17 of the Code of Civil Procedure. However, when the appellant came up with an application under Section 151 of the Code of Civil Procedure praying for restoration of the appeal, the appellate court ought to have considered the same bearing in mind that the court itself committed serious illegality and an error of law in disposing the appeal, disobeying the order of the superior court and also considering that an appeal cannot be disposed of on merit in the absence of the appellant. The appellate court unfortunately took a stand to defeat the appellant anyhow by disposing the appeal at the whims of the appellate court which cannot be condoned in anyway. From the language used in the judgment and order dated 12.03.2020, it cannot be construed that the appellate court below has no knowledge of provision of law, but it indicates from all the facts  and  activities  whatever  the  court  has  done  is  absolutely intentional. A Judge should play his role impartially having  no biasness to any particular party to the proceeding. In the instant case, I find that the appellate court below wanted to dispose of the appeal  anyhow  by  dismissing the  same  to  the detriment of  the appellant,  and  accordingly,  he  did  it.  It  is  really  unfortunate, unexpected,  undesirable  and  unwarranted  from  a  Judge  having status of Additional District Judge. Therefore, the Judge concern named Mr. Nurul Islam is hereby warned not to repeat the same in future.

From the above observations, I find that the appellate court committed serious error in disposing the appeal on merit disobeying the order of the learned District Judge, as well as rejecting the application  under  Section  151  of  the  Code  of  Civil  Procedure calling for interference by this Court.

Taking into consideration the above, I find merit in the Rule as  well  as  in  the  submissions  of  the  learned  Advocate  for  the petitioner.

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

Impugned  order  dated  23.07.2020  is  hereby  set  aside.  Application under Section 151 of the Code of Civil Procedure is hereby  allowed.  The  impugned  judgment  and  decree  dated 12.03.2020 passed by the appellate court in Title Appeal No. 70 of 2017 is hereby set aside and the appeal is re-admitted in its original number and position.

The appellate court is hereby directed to hear the appeal on merit and disposed of the same within a shortest possible time giving top most priority preferably within 03(three) months from the date of receipt of this judgment and order.

The order of status-quo shall continue till disposal of the

appeal.

Communicate a copy of the judgment to the Court concerned and send down the lower court records at once.  

Helal/ABO