IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.1903 of 2022

In the matter of:

An application under Section 115(4) of the Code of Civil Procedure.

And

Most. Shirin Sultana Rekha

.... Petitioner

-Versus-

Md. Khadem Ashraf and others

.... Opposite parties

Mr. M.G. Mahmud (Shaheen), Advocate

.... For the petitioner.

Mr. Md. Sumon Ali, Advocate

.... For the opposite party Nos.1-4. Heard and Judgment on 07.11.2024.

On  an  application  under  Section  115(4)  of  the  Code  of  Civil Procedure this Rule was issued calling upon the opposite party Nos.1-4 to  show  cause  as to  why  the  judgment  and  order  dated  23.02.2022 passed by the learned District Judge, Kurigram in Civil Revision No.32 of 2019 rejecting the revision thereby affirming the order No.95 dated 02.07.2019  passed  by  the  learned  Senior  Assistant  Judge,  Sada, Kurigram in Miscellaneous Case No.22 of 2007 rejecting an application for enlargement of time for depositing development cost under Section 148 to be read with Section 151 of the Code Civil Procedure should not

be set aside and/or pass such other or further order or as to this Court may seem fit and proper.

Facts in short are that the petitioner as petitioner instituted above case under Section 96 of the Non Agricultural Tenancy Act, 1949 for pre-emption  against  registered  kabala  deed  dated  31.10.2006 transferring 8 decimal land by opposite party No.3 and 4 to opposite party No.1 and 2. On conclusion of trial the learned Assistant Judge allowed above case on contest on 11.01.2018 with condition that the petitioner shall deposit development cost of Taka 2,613/- within 45 days in default above case shall stand dismissed.

The petitioner submitted a petition under Sections 148 and 151 of the Code of Civil Procedure on 23.05.2019 for extension of above time for deposit of development cost Taka 2,613/- to the learned Assistant Judge who on consideration of submissions of the learned Advocates for respective parties rejected above petition.

Being aggrieved by and dissatisfied with above judgment and order  of  the  learned  Assistant  Judge  above  petitioner  as  petitioner preferred Civil Revision No.32 of 2019 to the learned District Judge, Kurigram  who  on  consideration  of  submissions  of  the  learned Advocates for the respective parties and materials on record rejected above revision and upheld above order of the trial Court.

Being  aggrieved  by  above  judgment  and  order  of  the  learned District Judge above petitioner moved to this Court and obtained this Rule with leave.

Mr.  M.  G.  Mahmud  (Shaheen),  learned  Advocate  for  the petitioner submits that in the impugned order the learned Assistant Judge did not mention that in default to deposit development cost of Taka 2,613/- within 45 days the case shall stand dismissed. But the learned  Judge  mentioned  that  in  case  of  default  in  depositing development cost above case shall be treated to be dismissed which provides a scope for the petitioner for extension of above time. The petitioner  became  seriously  ill  immediately  after  passing  of  the impugned judgment and order by the trial Court. The petitioner was suffering from jaundice, blood dysentery and fever during the period from 05.01.2018 to 20.05.2019 and the petitioner could not communicate with his appointed Advocate and deposit above development cost. On consideration of above materials on record the learned Judge of the court of revision below should have allowed the revision and provide the petitioner an opportunity to deposit above development cost but the learned District Judge failed to appreciate above materials on record properly and most illegally rejected above revision which is not tenable in law.

On the other hand Mr. Md. Sumon Ali, learned Advocate for the opposite party Nos.1-4 submits that the learned Judge of the trial Court allowed the pre-emption with a default order directing the petitioner to

deposit development cost of Taka 6,0231/-within 45 days in default

above case shall stand dismissed. Admittedly the petitioner did not

deposit  above  development  cost  and  he  submitted  a  petition  for extension of above time after a laps of 1 year and 2 months.

On consideration of above materials on record the learned District

Judge has rightly rejected the revision and upheld the order of the trial

Court which calls for no interference.

I have considered the submissions of the learned Advocates for

the respective parties and carefully examined all materials on record.

Admittedly the petitioner filed above case under Section 24 of the

Non  Agricultural  Tenancy  Act,  1949  for  pre-emption  against  the registered kabala deed dated 31.10.2006 of opposite party Nos.1 and 2

and the learned Assistant Judge allowed above case on contest with following order:

""BN¡j£ 45 ¢c−el j−dÉ fË¡bÑ£−L e¡¢mn£ pÇf¢š Eæue MlQ h¡hc 2,613/- Q¡m¡e j§−m ¢h¢d ®j¡a¡−hL 1 J 2 ew fË¢af−rl Ae¤L§−m Bc¡m−a Sj¡ fËc¡e Ll−a q−h z hÉbÑa¡u Aœ ®j¡LŸj¡ e¡ j”¤l q−u−R h−m NZÉ q−hz''

It  is  admitted  that  the  petitioner  did  not  deposit  above development cost of Taka 2,631/-. It is also admitted that after a laps of 1year and two months on 23.05.2019 the petitioner submitted a petition to the Trial Court for extension of above period of 45 days which was rejected.

At the very outset the petitioner could not show a reasonable cause in above petition for above unusually long delay of 1 year and 2 months in seeking extension of the time. In above petition the petitioner has  alleged  that  he  fell  sick  immediately  after  the  passing  of  the impugned judgment and order by the trial Court and was suffering from jaundice, blood dysentery and fever. It seems to be very unusual that a person will remain ill due to above maladies from a period of 1 year and 2 months. No document was submitted along with above petition in support of above illness of the petitioner. 

It is clear from above cited order of the trial Court that that the trial Court made the order of granting of the pre-emption conditional to the payment of development cost within 45 days and mentioned that in default in making above payment the case shall stand dismissed. Since the petitioner appeared before the trial Court for extension of above time after above period was already expired and the trial Court had no jurisdiction to entertain above petition since above pre-emption case was already dismissed.

In above view of the materials on record I hold that the learned Judge of the trial Court on correct appreciation of facts and law rightly rejected the petition for extension of time for depositing development cost and the learned District Judge rightly rejected above revision of the petitioner and upheld the lawful order of the trial Court which calls for no interference.

I find no substance in this revisional application under Section 115(4)  of  the  Code  of  Civil  Procedure  and  the  Rule  issued  in  this connection is liable to be discharged.

In the result, the Rule is hereby discharged. 

 However, there is no order as to costs.

Send down the lower Court’s records immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER