IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.400 OF 2023

In the matter of:

An application under Section 115(1) of the Code of Civil Procedure.

And

Shokhiton Nesa and others

... Petitioners

-Versus-

Md. Hazrat Ali and others

... Opposite parties

Mr. Syed Altaf Hossain, Advocate

.... For the petitioners.

None appears

…. For the opposite parties.

Heard and Judgment on 05.11.2024.

This Rule was issued calling upon the opposite party Nos.1-16 to show cause as to why the judgment and decree dated 31.08.2022 passed by  the  learned  Joint  District  Judge,  3rd  Court,  Sirajgonj  in  Partition Appeal No.98 of 2017 allowing the appeal sending the suit on remand reversing  the  judgment  and  decree  dated  20.04.2017  passed  by  the learned Assistant Judge, Kmarkhond, Sirajgonj in Partition Suit No.49 of 2014 decreeing the suit on contest in preliminary form 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 in short are that the petitioner as plaintiff instituted above suit for partition seeking a separate saham for 4.361 decimal land on the basis of inheritance and purchase.

Defendant  Nos.14-16  and  26-31  contested  above  suit  by  filing separate written statements. On conclusion of trial the learned Assistant Judge decreed the suit and granted the plaintiff separate saham for 434.6 decimal land, defendant No. 12-14 and 16 were granted separate saham for 27 decimal and defendant No.26-31 were granted separate saham for 49.671 decimal land.

Being aggrieved by and dissatisfied with above Judgment and decree of the trial Court defendant No.1-16 preferred Partition Appeal No.98 of 2017 to the District Judge, Sirajgonj which was heard by the learned Joint District Judge, 3rd Court who allowed the appeal, set aside the judgment and decree of the trial court and remanded the suit for re- trial.

Being aggrieved by and dissatisfied with above judgment and decree of the Court of appeal below respondents as petitioners moved to this court and obtained this Rule.

Mr.  Syed  Altaf  Hossain,  learned  Advocate  for  the  petitioners submits that the learned Judge of the Court of appeal below remanded the suit for re-trial on the ground that summon was not served upon the  defendant  No.33.  But  in  fact  above  defendant  No.33  entered appearance in above suit but subsequently abandoned his claim and withdrew his documents by submitting a petition on 05.03.2023. The learned Joint District Judge erroneously held that the heirs of deceased defendant  No.41  Abdul  Aziz  did  not  receive  any  summon  and  the address of defendant No.3 was erroneously shown in the plaint and no notice was served upon above defendant and after his demise his heirs were not substituted as defendants in the suit.

The learned Joint District Judge could substitute the heirs of any deceased  defendant  if  it  was  found  that  the  defendant  died  before receipt of summon or could pass an order service of summon summon upon  any  defendant  and  then  after  giving  them  an  opportunity  to submit their claim for saham could proceed to dispose of the appeal on merit. But the learned Joint District Judge insisted of disposing of the appeal on merit has most illegally set aside the lawful judgment and decree of the trial court on flimsy procedural grounds and remanded the suit for retrial which is not tenable in law.

No  one  appears  on  behalf  of  the  opposite  parties  when  the revision was taken up for hearing although the matter appeared in the list for hearing on several dates.

I have considered the submissions of the learned advocate for the petitioner and carefully examined all materials on record.

As mentioned above on conclusion of trial the learned Judge of the trial Court decreed the suit on contest and granted separate saham for the plaintiffs and contesting defendants.

It  turns  out  from  record  that  the  learned  Joint  District  Judge instead  of  disposing  of  the  appeal  on  merit  has  unnecessarily concentrated on flimsy procedural aspects as to service of summons and non substitution of the heirs of the defendants. It is well settled that a Court of appeal is also a Court of facts and in a suit for partition an Appellant  Court  has  jurisdiction  to  allow  amendment  of  pleading, addition  of  parties  and  record  additional  evidence  and  then  pass a judgment on merit.

The learned Judge of the trial Court employed enough labour and time for writing a detailed judgment and allocating shares to both the plaintiffs and defendants. The learned Judge of the Court of appeal below set aside the judgment and decree of the trial court on curable procedural  deficiencies.  The  learned  Judge  of  the  Court  of  appeal erroneously  held  that  summon  was  not  served  properly  upon defendant No.33 who in fact filed an application on 05.03.2023 seeking return of his submitted documents.

The learned Judge of Court of appeal below could substitute the heirs of deceased defendants if they were interested and dispose of the appeal on merit in accordance with law.

In  above  view  of  the  facts  and  circumstance  of  the  case  and materials on record I find substance in this application under Section 115(1)  of  the  Code  of  Civil  Procedure  and  the  Rule  issued  in  this connection deserves to be made absolute.

In the result, this Rule is hereby made absolute. 

The impugned judgment and decree dated 31.08.2024 passed by the learned joint District Judge, 3rd Court, Sirajgonj in Partition Appeal No.98 of 2017 is set aside. The learned Joint District Judge, 3rd Court, Sirajgon is directed to dispose of the appeal on merit in accordance with law expeditiously preferably within a period of 6 (six) months from the date of receipt of this judgment.

However, there is no order as to cost.

Send down the lower Courts records immediately.  

MD. MASUDUR RAHMAN     BENCH OFFICER