Present:

Mr. Justice Sheikh Abdul Awal Civil Revision No. 558 of 2011

Md. Ansar Ali Morol being dead his legal heirs Most. Rezia Begum and others.

      ..….. Defendant-petitioners. Versus

Md. Tukuzzaman Morol and others.

                     ...….. Plaintiff-Opposite Parties. Mr. Ahmed Nowshad Jamil, Advocate

                     ....…For the Defendant-petitioners. Mr. Sheikh Forhadul Haque, Advocate

                 ...…For the Plaintiff-opposite parties. Heard and Judgment on 29.08.2024

 This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and order dated 24.08.2010 (decree signed on 31.08.2010) passed by the learned Joint District Judge, 1st Court, Khulna in Title Appeal No. 30 of 2009 remanding the suit for fresh trial to the trial Court should not  be  set-aside  and/or  such  other  or  further  order  or  orders passed as to this Court may seem fit and proper.

Material  facts  of  the  case,  briefly,  are  that  the  present opposite party Nos. 1-3 as plaintiffs filed Title Suit No. 14 of 2003 in the Court of learned Assistant Judge, Paikgacha, Khulna impleading the petitioners as defendants for partition of the suit land as described in the schedule of the plaint.

The petitioners as defendant Nos.1 and 2-3 contested the suit by filing separate written statements denying all the material allegations made in the plaint contending, inter-alia, the plaintiffs filed case on false averments, the suit is not maintainable in its present form and manner, the suit is bad for defect of parties and as such, the suit is liable to be dismissed.

Ultimately,  the  said  suit  was  dismissed  on  contest  by judgment and decree dated 03.11.2008. Thereafter, the plaintiffs preferred Title Appeal No. 30 of 2009 before the learned District Judge, Khulna, which was subsequently transmitted to the Court of the learned Joint District Judge, 1st Court, Khulna for disposal, who after hearing the parties by the impugned judgment and order dated 24.08.2010 sent back the case on remand to the trial Court after setting-aside the judgment and decree of the trial Court dated 03.11.2008.

Being  aggrieved  by  and  dissatisfied  with  the  aforesaid judgment and order dated 24.08.2010, the defendant-petitioners have come before this Court and obtained the present Rule.

Mr. Ahmed Nowshad Jamil, the learned Advocate appearing for  the  defendant-petitioners  at  the  very  outset  referring  the impugned  judgment  and  order  dated  24.08.2010  and  other materials  on  record  submits  that  the  Court  of  appeal  below without applying its judicial mind into the facts and circumstance of  the  case  and  law  bearing  on  the  subject  most  illegally remanded  the  suit  to  the  trial  Court  after  setting-aside  the judgment  and  decree  passed  by  the  trial  court  below,  which resulted in the failure of justice. He further submits that the Court of appeal below has shirked his responsibility in remanding the case for retrial to the trial court instead of disposing the appeal inasmuch as the lower Appellate Court under section 107(1)(b) of the Code of Civil Procedure read with Order 41, Rule XXIII of the Code is equally empowered as like as trial Court to decide the case in taking evidence, if so required and thus, the impugned order of remand  is liable to be set-aside.

Mr. Sheikh Forhad Hossain, the learned Advocate appearing for the defendant-opposite parties, on the other hand, opposes the Rule and supports the impugned judgment and order. He submits it is on record that the plaintiff side examined only one witness and due to wrong advise of their Advocate they could not adduce more  than  1  witness  and  also  could  not  exhibit  all  necessary papers in the suit and therefore to meet the ends of justice the Court of appeal below committed no wrong in remanding the suit to the trial Court below. The learned Advocate, however, admits that in the facts and circumstances of the case the Court of appeal below is equally empowered as like as trial Court to decide the case on taking evidence, if so required and thus, he will have no objection if a direction is given to the Court of appeal below to hear and dispose of the appeal on merit in taking evidence, if so required in accordance with law.

Having  heard  the  learned  Advocates  for  both  the  sides having gone through the judgments of 2 Courts below and other materials  on  record,  the  only  question  that  calls  for  my consideration in this Rule is whether the court of appeal below committed any error in remanding the suit to the trial court.

On scrutiny of the record, it appears that the learned Joint District Judge, 1st Court, Khulna as appellate court after hearing the parties by the impugned judgment and order dated 24.08.2010 remanded  the  case  to  the  trial  Court  after  setting-aside  the judgment and decree of the trial Court dated 03.11.2008 although the Court of appeal below observed that the suit is bad for defect of parties, barred by law of limitation, not maintainable without seeking any declaration.

 In a case of this nature the Court of appeal below ought to have  disposed  of  the  case  on  merit  in  taking  evidence,  if  so required as like as trial court. The lower Appellate Court under section 107(1)(b) of the Code of Civil Procedure read with Order 41, Rule XXIII of the Code is equally empowered as like as trial Court  to  decide  the  case  on  taking  evidence,  if  so  required. Therefore,  in  the  facts  and  circumstances  and  in  view  of submission of the learned Advocates for both the parties, I am constrained  to  hold  that  the  impugned  judgment  and  order remanding the suit to the trial Court below does not deserve to be sustained. Besides, in this case both the parties have agreed that they have no objection if the case is sent back on open remand to the appellate Court by giving an opportunity to the parties to adduce fresh evidence in support of their respective cases.

In the facts and circumstances of the case as revealed from the materials on record and in view of the submissions of the learned Advocates for both the parties, I am of the view that in the interest of justice and to prevent failure of justice it is necessary that this case should be sent back to the Court of appeal below for writing  a  proper  judgment  in  accordance  with  law.  In  this connection the Court of appeal below is at liberty to allow the parties to adduce evidence both oral and documentary in support of their respective cases, if so required.

In the result, the Rule is made absolute. The judgment and order dated 24.08.2010 passed by the learned Joint District Judge, 1st Court, Khulna in Title Appeal No. 30 of 2009 remanding the suit is set aside and the suit is sent back to the Court of learned Joint District Judge, 1st Court, Khulna for disposal of the appeal afresh  and  both  the  parties  will  be  at  liberty  to  adduce fresh evidence in support of their respective cases and thereafter the learned Joint District Judge, 1st Court, Khulna shall dispose of the appeal  on merit in accordance with law.

        The order of stay granted by this court earlier is hereby vacated. In the facts and circumstances of the case there will be no order as to costs.

Let a copy of this judgment along with lower Courts’ record be sent down at once.