IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Zafar Ahmed

Civil Revision No. 792 of 2023

Mohammad Musa Sawdagar and another

........ Petitioners -Versus-

Mohammad Alamgir Parvez and others

.... Opposite parties

Mr. Binod Kumar, Advocate

........ For petitioners Mr. Mohammad Mehdi Hasan, Advocate

.... For opposite party Nos. 1 and 2

Heard and Judgment on: 25.08.2024

In the instant revisional application filed under Section 115(1) of  the  Code  of  Civil  Procedure  at  the  instance  of  the  plaintiff- petitioners, this Court on 13.03.2023 issued a Rule calling upon the opposite party Nos. 1 and 2 to show cause as to why the impugned judgment and order dated 09.02.2023 passed by the learned District Judge,  Chattogram  in  Miscellaneous  Appeal  No.  50  of  2023 dismissing the appeal and thereby affirming those dated 11.01.2023 passed by the Joint District Judge, Chattogram in Miscellaneous Case No. 40 of 2015 arising out of Other Class Suit No. 155 of 2021 allowing the application filed under Order 9 rule 13 read with Section 151 of the Code of Civil Procedure should not be set aside.

The opposite party Nos. 1 and 2 have entered appearance in the

Rule.

The present petitioners as plaintiffs filed suit for declaration of title being Other Suit No. 572 of 2008 in the Court of 3rd Joint District Judge,  Chattogram  impleading  the  present  opposite  parties  as defendants. The suit was decreed ex parte against all the defendants on  31.07.2013.  Having  learnt  about  the  said  ex  parte  decree,  the defendant Nos. 7 and 8 (present opposite party Nos. 1 and 2) filed Miscellaneous Case No. 40 of 2015 under Order 9 rule 13 read with Section 151 of the Code of Civil Procedure (CPC) before the Court of 3rd Joint District Judge, Chattogram for  setting aside  the ex parte judgment and decree. The miscellaneous case was contested by the decree holder plaintiffs. Eventually, the Court below, vide judgment and order dated 11.01.2023 allowed the miscellaneous case, set aside the ex parte judgment and decree and restored the Other Suit No. 572 of 2008 to its original file and number. Challenging the said judgment and order, the plaintiffs filed Miscellaneous Appeal No. 50 of 2023 before the Court of District Judge, Chattogram, who, vide judgment and order No. 1 dated 09.02.2023 rejected the miscellaneous appeal and hence, the instant civil revisional application at the instance of the plaintiffs.

I have heard the learned Advocates of both sides and perused the materials on record.

The miscellaneous case filed under Order 9 rule 13 of the CPC

was  contested  by  the  decree  holder-plaintiffs.  Both  sides  adduced

documentary  evidence  before  the  Court.  Moreover,  both  sides

examined  one  witness  each  who  were  cross-examined.  The  Court

below  examined  both  oral  and  documentary  evidence  and

categorically observed, “AbÑ¡v f¡Ëb£LÑN­Zl Efl ®k pje kb¡l£¢a S¡l£ qu a¡ pje

f¢Ëa­hce J f¡Ëb£Ñ­Ll Sh¡eh¾c£ J ®Sl¡ fkÑ¡­m¡Qe¡u fËa£uj¡e qu e¡z pj­e E­õ¢Ma

hÉ¢š²­cl f¢lQu ¢e¢ÕQa qJu¡ k¡u¢ez a¡l¡ ®k f¡Êb£­ÑLl HL¡eÀha£Ñ f¢lh¡­ll pcpÉ a¡

fjË¡Z qu e¡z fË¡b£­ÑLl (fËcnÑe£-2) fkÑ¡­m¡Qe¡u f¢ÕQj dmC eNl e¡­j ®L¡e CE¢eu­el

f¢lQu f¡Ju¡ k¡u e¡z f¡Ëb£ÑLNZ CµR¡L«ai ¡­h ®j¡LŸj¡u fË¢aà¢åa¡ L­le¢e a¡l ®L¡e

fjË¡Z f¢lm¢r a qu e¡z Hja¡hØq¡u, fË¡b£ÑL/¢hh¡c£N­Zl f¢Ëa X¡L J ®eS¡la pje

BC­el ¢hd¡e j­a kb¡l£¢a S¡l£ q­u¢Rm j­jÑ fjË¡¢Za qu¢ez pje S¡l£l c¡¢uaÄ h¡c£l

Efl haÑ¡uz ®k­qa¤ f¡Ëb£ÑLN­Zl fË¢a j§m ®j¡LŸj¡l pje¡¢c kb¡l£¢a S¡l£ qu¢e Hhw

a¢LÑa HLalg¡ l¡u-¢XH²£ pÇf­LÑ S¡e¡l fl ¢jR clM¡Øa c¡¢Mm L­l­Re Hhw ®k­qa¥ f¡Ëb£LÑN­Zl Aœ ¢jR clM¡ØaM¡e¡ BCeax BL¡­l J fËL¡­l lr Z£u ®p­qa¥ f¡Ëb£ÑLN­Zl

¢jR clM¡ØaM¡e¡ j”¤­ll fkÑ¡ç L¡lZ l­u­R j­jÑ Bc¡m­al ¢eLV fËa£uj¡e qu” z

Mr.  Binod  Kumar,  the  learned  Advocate  appearing  for  the

present petitioners submits that the ex parte judgment and decree was

passed  on  31.07.2013  (decree  signed  on  07.08.2013)  but  the

miscellaneous case under Order 9 rule 13 was filed on 17.06.2015 i.e.

after  expiry  of  the  prescribe  period  of  limitation  of  30  days  as

provided in Article 164 of the First Schedule of the Limitation Act,

1908 and as such, the said miscellaneous case is liable to be rejected

as being barred by limitation. Under Article 164 of the Limitation Act the period of limitation of 30 days begins from the date of ex parte decree or where the summons was not duly served, when the applicant has knowledge of the decree. In paragraph No. 2 of the application filed under Order 9 rule 13, the defendants categorically set out the reasons for delay in filing the case. Moreover, it appears from the judgment  and order  dated 11.01.2023 passed  in the miscellaneous case that the question of limitation was not raised before the Court and no issue was framed on point of limitation. Therefore, the question of limitation cannot be raised at this stage of the proceeding.

I have already quoted the relevant potions of the findings of the Court below. Those were upheld by the lower Appellate Court. The findings are based on evidence. The learned Advocate appearing for the petitioners could not lay his hands on the finding of facts arrived at by the Court below. Hence, I find no merit in the Rule.

In the results, the Rule is discharged.

Mazhar, BO