IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

        (CIVIL REVISIONAL JURISDICTION)

CIVIL REVISION No. 63 OF 2023.

Md.  Mahmudul  Haque  Patowary  and others

             ...Petitioners. -Versus-

Samin Yeasar Haque Patowary and others.

  ....Opposite parties. Mr. Md. Tahid Uddin Shepon with

Ms. Bethe Debnath, Advocates

            …For the petitioners Mr. Md. Nasir Sikder, Advocate

              …For the opposite parties

Heard on: 28.10.24, 03.11.2024 and 11.11.24. Judgment on: 12.11.2024.

   Present:

Mr. Justice Md. Badruzzaman;

This Rule was issued calling upon the opposite parties to show cause  as  to  why  judgment  and  order  dated  13.11.2022  passed  by learned District Judge, Dhaka in Civil Miscellaneous Appeal No. 237 of 2022 dismissing the appeal summarily and thereby affirming judgment and order dated 20.06.2022 passed by learned Joint District Judge, 4th Court, Dhaka in Miscellaneous Case No. 13 of 2015 allowing the case filed under Order IX rule 13 of the Code of Civil Procedure should not be set aside.

During issuance of Rule further proceedings of Title Suit No. 218 of  2004  was  stayed  for  a  period  of  06  (six)  months  which  was subsequently, extended time to time.

Facts, relevant, for the purpose of disposal of this Rule, are that opposite party Nos. 1-3 filed Miscellaneous Case No. 13 of 2015 against the petitioners under Order IX rule 13 of the Code of Civil Procedure praying  for  setting  aside  ex  parte  judgment  and  decree  dated 01.12.2014 (decree signed on 08.01.2015) passed in Title Suit No. 218 of 2004 contending, inter alia, that they were defendants in Title Suit No. 218 of 2004 and filed written statements to contest the suit but their  learned  engaged  Advocate  did  not  contract  with  them  and avoiding to keep relationship with them. Accordingly, they engaged Mr. A.B.M Arif Ullah as their Advocate who collected information from the Court on 22.04.2015 and came to learn that Title Suit No. 218 of 2004 was decreed ex parte vide judgment and decree dated 01.12.2014. The suit was decreed ex parte due to negligence on the part of the learned engaged Advocate for the defendants and as such, the ex parte decree should be set aside and the suit be restored. The plaintiff opposite party  Nos.  2,  5-12  filed  written  objection  to  contest  the  case contending,  inter  alia,  that  the  predecessor  of  the  defendants collusively got ex parte judgment and decree on 05.11.1998 in Title Suit No. 227 of 1992 which was challenged by the plaintiffs in Title Suit No. 218  of  2004  praying  for  a  decree  of  declaration  that  the  ex  parte judgment and decree was collusive, ineffective and not binding upon the plaintiffs. The predecessor of the defendants entered appearance in the suit on 30.01.2005 and filed an application for rejection of the plaint under Order VII rule 11(d) of the Code of Civil Procedure which was rejected by order dated 12.03.2005 against which he filed Civil Revision No. 128 of 2005  before the learned  District Judge and  which  upon transfer was heard by learned Additional District Judge, 1st Court, Dhaka who,  upon  hearing  the  parties,  dismissed  the  revision  by  judgment dated  05.06.2006.  Thereafter,  the  substituted  heirs  of  the  original defendant challenged said judgment and order before the High Court

To prove the miscellaneous case the defendants adduced one oral witness and the plaintiff adduced one oral witness and the trial Court upon considering the evidence and materials on record, allowed the miscellaneous case by judgment and order dated 20.06.2022 and set  aside  ex  parte  judgment  and  decree  dated  01.12.2014.  Being aggrieved by said judgment and order of the trial Court, the plaintiffs preferred  Civil  Miscellaneous  Appeal  No.  237  of  2022  before  the learned District Judge, Dhaka who, upon hearing, dismissed the appeal summarily by judgment and order dated 13.11.2022. Challenging the legality  of  said  judgment  and  order  dated  13.11.2022,  the plaintiffs have preferred this revisional application under section 115 (1) of the Code of Civil Procedure and obtained the instant Rule.

Mr. Md. Tahid Uddin Shepon, learned Advocate appearing for the petitioners submits that since the miscellaneous case was filed beyond the period of limitation and the defendant-opposite parties failed to establish their date of knowledge about the ex parte decree the, Court of appeal should have allowed the appeal by setting aside the judgment and order of the trial Court. Learned Advocate further submits that the defendants adduced their attorney to establish their date of knowledge about the  ex  parte  decree but  he knew  nothing about the date of knowledge and that the defendants did not adduce any other oral or documentary  evidence  to  prove  the  date  of  knowledge.  Learned Advocate further submits that the defendants filed written statement to contest the suit after long delay of filing of the suit and they had negligence to contest the suit and accordingly, they are not entitled to the  relief  prayed  for  under  Order  IX  rule  13  of  the  Code  of  Civil Procedure. Learned Advocate further submits that gross negligence on the part of the defendants should stand in the way of getting relief under Order IX rule 13 of the Code of Civil Procedure. In support of his contention learned Advocate has referred to the cases of Sudhir Kumar Das and another vs. Abdul Malek and others 12 BLC (AD) 1 and Motiur Rahman vs. A.K.M Shamsul Alamin and another 62 DLR 449.

Mr.  Md.  Nasir  Sikder,  learned  Advocate  appearing  for  the defendant  opposite  parties  submits  that  though  the  defendant submitted written statement to contest the suit but due to the fault of their engaged learned Advocate the ex parte judgment and decree was passed  beyond  their  knowledge  and  for  the  fault  of  the  learned engaged Advocate the defendants should not be suffered and as such, the Court of appeal committed no error of law in dismissing the appeal by affirming the order of the trial court. In support of his contention the learned Advocate has referred to the cases of Sethshivrattan G. Mohata and another vs. Messers Mohammadi Stram Ship Company Limited 17 DLR (SC) 487 and Daraj Uddin Kazi and others vs. Hafiz Uddin Kazi and others 18 DLR 481.

I have heard the learned Advocates and perused the judgments of the courts below, the order sheet of Title Suit No. 218 of 2004 and other documents available on record from which it appears that Title Suit No. 218 of 2004 was filed by the petitioners herein challenging ex parte judgment and decree dated 10.11.1998 passed in favour of the predecessor of the opposite parties in Title Suit No. 227 of 1992. The predecessor  of  the  present  opposite  parties  filed  application  under Order VII rule 11 of the Code of Civil Procedure for rejection of the plaint of Title Suit No. 218 of 2004 and the opposite parties lost up to the High Court Division. Then the proceeding of the suit was started in 2011. Since the substituted defendants did not appear upon service of notice, the trial Court fixed the suit for ex parte hearing and thereafter, the present opposite parties as substituted defendants appeared in the suit on 24.06.2012  and filed written statement on 30.07.2012  and upon their prayer, the trial Court accepted the written statement and withdrawn the suit from ex parte hearing. It appears that after filing written statement on 30.06.2012 the defendants did not take any steps in the suit and the trial Court again fixed the suit for ex parte hearing on several  dates  and  thereafter,  on  10.04.2014,  08.05.2014  and 30.06.2014 recorded evidence of Pt.Ws. 1, 2 and 3 but the defendants did not cross-examine them and the trial Court fixed so many dates in 2014 for hearing and lastly on 01.12.2014 passed ex parte judgment and decree.

It is settled principle of law that once a defendant appears in the suit  and  filed  written  statement  and  thereafter,  refrained  from contesting  the  suit  the  judgment  and  decree  would  amount  to  a contesting  judgment  and  decree  against  which  an  appeal  is maintainable and an application under Order IX rule 13 of the Code of Civil Procedure to set aside the said decree is not maintainable.

In this case, the defendants on 30.7.2012 filed written statement to contest the suit and thereafter, did not appear and then ex parte judgment and decree was passed on 1.12.2014. Accordingly, the  ex parte judgment and decree would amount to contesting judgment and decree  against  which  an  appeal  was  maintainable.  The  application under Order IX rule 13 of the Code which gave rise to Miscellaneous Case No. 13 of 2015 was filed after more than two years of the date of decree. Even if, it is considered that the decree was an ex-parte decree in  that  case  Article  164  of  the  Limitation  Act  will  come  to  play  in counting limitation in filing the miscellaneous case which provides that an application for setting aside an ex-parte decree shall have to be filed within 30 days from the date of the decree where summons were duly served and within 30 days from the date of knowledge when summons was not duly served (Ref: Akbar Hossain Khan vs. Awlad Hossain Khan, 49 DLR 561). So the defendants would get 30 days time from the date of passing ex-parte decree. But they filed the application under Order IX rule 13 f the Code of Civil Procedure after 30 days from the date of ex- parte decree and it was clearly barred by limitation.

Once a party receives an intimation of an action in a Court, it is for him to pursue it diligently and to keep himself in touch with the proceedings,  either  personally  or  through  his  Counsel,  and  the consequences  flowing  from  his  failure  to  keep  pace  with  the developments of the suit must be borne by him but the defendants herein filed written statement and thereafter, did not contest the suit and as such, it is to be considered that they were not diligent with the proceeding of the suit. Under such circumstances they must bear the whole brunt of the ominous consequences that naturally flow from their failure to keep pace with the developments of the suit.

The defendants contended that after filing the written statement on 30.07.2012 the engaged Advocate did not communicate with them and thereafter, they engaged a new lawyer for collecting information. None of the defendants appeared as witness before the trial Court and they adduced one Md. Zahirul Islam as their attorney appointed by a power of attorney dated 07.02.2017 to depose on their behalf as Pt. W. 1  who  in  his  deposition  stated  that  he  learnt  about  the  ex  parte judgment and decree on 22.04.2015. In cross-examination he stated that he knew nothing about the title suit or any matter about the suit and he had no personal knowledge about the suit or ex parte decree. The defendants did not adduce any further witness to prove their date of knowledge about the ex parte decree.

An “attorney holder” cannot depose or give evidence in place of his  principal  for  the  acts  done  by  the  principal  or  transactions  or dealings  of  the  principal  of  which  principal  alone  has  personal knowledge. This view finds support in the cases of Janki Vashdeo vs. Industrial Bank limited 2005 (2) SCC 217, Shambhu Shastri vs. State of Rajasthan, 1989 2 WLN 713 (Raj), Ram Prasad vs. Hari Narain AIR 1998 (Raj) 185, Shankar Finance & Investments vs. State of AP (2008) 8 SCC 536 and Mankour (Dead) by Lrs. vs. Hartar Singh Sangha (passed in Civil Appeal Nos. 147-148 of 2001, online version).

In  the  instant  case  the  Attorney  of  the  defendants  had  no personal  knowledge  about  the  date  of  knowledge  of  the  ex  parte judgment and decree and as such, his testimony became valueless and inadmissible evidence.

It appears that the Court of appeal upon misconception of law and non-consideration of evidence dismissed the appeal summarily by the impugned judgment and illegally affirmed the judgment and order of the trial Court for giving gratuitous relief to the defendants and as such, committed an error of law resulting in an error in the decision occasioning failure of justice.

In view of the above I find merit in this Rule.

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

The  judgment  and order  dated  13.11.2022  passed  by  learned District Judge, Dhaka in Civil Miscellaneous Appeal No. 237 of 2022 dismissing  the  appeal  summarily  and  affirming  judgment  and  order dated  20.06.2022  passed  by  learned  Joint  District  Judge,  4th  Court, Dhaka  in  Miscellaneous  Case  No.  13  of  2015  are  set  aside. Miscellaneous Case No. 13 of 2015 filed by the defendants under Order IX rule 13 of the Code of Civil Procedure is dismissed.

The order of stay granted earlier is hereby vacated.

Send down the L.C.R along with a copy of this judgment to the Courts below at once.          

(Justice Md. Badruzzaman)