District: Chandpur

In the Supreme Court of Bangladesh

High Court Division

(Civil Revisional Jurisdiction)

  Present:-

Mr. Justice Md. Zakir Hossain

Civil Revision No. 2171 of 2021

A.  Rashid Mezi being dead his legal heirs: Maleka Bibi and others

............ Contesting Defendants Appellant-Petitioners

-Versus-

Golam Hossain Mezi being dead his legal heirs: Shorupa Khatun and others

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

Mr. Md. Ershad Ali Gazi, Advocate

...... For the petitioners

Mr. Abdur Razzak, Advocate

....For the opposite parties

Heard On:11.07.2023

                      Judgment On: 08.11.2023

Md. Zakir Hossain, J:

 At the instance of the petitioners, the Rule was issued by this Court with the following terms:

“Records need not be called for.

Let a Rule be issued calling upon the opposite party Nos. 1(ka)-1(chha)/2 to show cause as to why the impugned order dated 01.09.2021 passed by the learned District Judge, Chandpur in Title Appeal 20 of 2021 rejecting an application under Section 5 of the Limitation Act, 1908 filed by the petitioners for condonation of delay for 1264 days in filing appeal and thereby dismissing the appeal summarily should not be set aside and/or such

other or further order or orders passed 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 present opposite Nos. 1(Ka) to 1(Chha) and others constituted Title Suit No. 196 of 1986 before the Court of the learned Sub-Judge (presently Joint District Judge, First Court), Chandpur impleading the petitioners as the defendants for partition and allocation of separate saham. After conclusion of the hearing, the learned Joint District Judge was pleased to decree the suit allocating separate saham in favour of the plaintiff-opposite parties. Challenging the legality and propriety of the judgment and order of the learned Joint District Judge, the defendant preferred Title Appeal No. 20 of 2021 before the Court of the learned District Judge, Chandpur. There was a delay of 1264 days in preferring the appeal and after hearing the same, the learned District Judge was pleased to dismiss the appeal summarily as being barred by limitation. Impugning the judgment and order of the learned District Judge dated 01.09.2021; the petitioners moved this Court and obtained the aforesaid Rule.

Heard the submissions advanced by the learned Advocates of the parties and considered the materials on record with due care and attention and seriousness as they deserve and the convoluted question of law embroiled in this has meticulously been waded through in order to reach a just decision.

It appears from the materials on record that the learned District Judge dismissed the appeal summarily holding the view that the appellant failed to explain the cause of delay sufficiently and therefore, dismissed the appeal summarily. In this respect, the relevant portion of the judgment and order of the learned District Judge may be read as follows:

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On perusal of the application, I am of the view that the petitioners under Paragraph Nos. 5-7 explained the cause of delay sufficiently and reasonably. But the learned District Judge without considering the facts and circumstances of the case and devastating effect of ‘Corona Virus’ most illegally dismissed the appeal summarily; therefore, the defendant- petitioners failed to challenge the legality and chastity of the judgment and order of the Trial Court by way of appeal.

In the case of  Sonar Bangla Service Station v. Government of Bangladesh and others, reported in 16 BLT(AD) (2008) 99, it was held:

“Though the uniform view of the Courts of the subcontinent is that in the matter of condonation of delay Government does not enjoy any special privilege or will not have special latitude or that in the matter of condonation of delay Government and private party would be accorded same treatment or that as litigant the Government and the ordinary litigant stand on the same footing, yet when on the part of the Government there has been no gross negligence in prosecuting the matter or there has been "special circumstances" because of which delay occurred or that particularly the process through which decision is made by the Government for filing appeal/revision and the same is considered "appropriate circumstances", or that as the government represents the "collective cause of the community" or that the delay is not deliberate and the explanation offered reasonable or when in the decision process file does not move through stage(s) which has nothing to do in the matter of decision making, or the file was not referred to functionaries who were nobody in the decision making process or that non-hearing of the matter on the ground of limitation would unjustly benefit the party who apparently appears to have manipulated the functionaries of the Government to waste time in the decision making process in bringing the matter before the Court for adjudication on merit or when the necessity or justification or reasonableness of hearing the matter on merit would ought way the hardship to other side in case of condonation, the prayer from the said of the Government for condonation of delay has been considered with somewhat leniency, but not in the absence of reasonable or close to satisfactory explanation for the delay caused.”

In the case of Government of Bangladesh v. Hasrat Mohani and others, reported in 14 BLT(AD) (2006) 123, the Government preferred appeal which was out of time by 4578 days and the Appellate Division

allowed the appeal with the following observation:

“It appears that the appellant explained the delay for filing the appeal offering sufficient reasons for the delay which were beyond control of the appellant and as such the Lower Appellate Court condoned the delay. The High Court Division on the other hand passed the impugned judgment and order without considering the cogent grounds assigned by the appellant and thus committed error in the decision. In view of the discussion made above we find substance in this appeal. The appeal is, therefore, allowed without any order as to costs.”

Having regard to the facts and circumstances of the case, I am of the view that the Rule has got substances and it deserves to be made absolute and the impugned judgment and order of the learned District Judge is liable to be turned down to secure the ends of justice.

In the result, the Rule is made absolute, however, without passing any order as to costs. The impugned judgment and order passed by the learned  District  Judge  is  hereby  set  aside  and  the  petition  for condonation of delay is allowed and accordingly, the learned District Judge is directed to admit the appeal and shall dispose of the same on merit within 06 (six) months from the date of receipt of the copy of this judgment  positively.  No  unnecessary  adjournment  petition  shall  be entertained from either side.

Let a copy of this judgment be sent down to the Courts below at once.              

(Md. Zakir Hossain, J)

Naser. P.O