IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 1148 OF 2011

IN THE MATTER OF:

An  application  under  section  115(1)  of  the Code of Civil Procedure. (Against Order)

-And-

IN THE MATTER OF:

Emdadul and others

--- Plaintiff-Appellant-Petitioners. -Versus-

Md. Bellal Khalipha and others

--- Defendant-Opposite Parties. No one appears

--- For the Plaintiff-Appellant-Petitioners. Mr. A. S. M. Khalequzzaman, Advocate

---For the Defendant-O. P. Nos. 1 and 2.

Heard on: 09.07.2023 and 13.07.2023. Judgment on: 13.07.2023.

At  the  instance  of  the  present  plaintiff-appellant- petitioners, Emdadul and others, this Rule was issued upon a revisional application filed under section 115(1) of the Code of Civil Procedure calling upon the opposite party Nos. 1 and 2 to show cause as to why the impugned Order dated 17.01.2011 passed by the learned Additional District Judge, Madaripur in Restoration Case No. 03 of 2010 allowing the same and setting aside the exparte judgment and decree dated 13.05.2010 passed

by the learned Additional District Judge, Madaripur in the Title Appeal No. 33 of 2009 allowing the appeal and reversing the judgment and decree dated 30.04.2002 passed by the learned Joint  District  Judge  and  Senior  Assistant  Judge  (In-Charge), Sadar, Madaripur in the Title Suit No. 101 of 2002 should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the present petitioners as the plaintiffs filed the Title Suit No. 101 of 2002 for declaration of title and also a declaration that the settlement of the suit land obtained by the defendant No. 1 through the Settlement Case No. XII-M-11/99-2000/XII-MC- 279/2000 which was illegal, collusive and fraudulent. The plaint further  contains  that  the  father  of  the  plaintiff-petitioners purchased the suit land on auction on 11.08.1979 and the land was mutated to the father of the plaintiffs and on the basis of that the plaintiffs paid rent of the suit land and got the rent receipt. Subsequently, the suit land was recorded in the names of the plaintiffs in BRS Khatian. The suit property is not a khas land. The defendant No. 1 threatened to the plaintiffs on 10.08.2002 not to enter into the suit land by showing the above-mentioned

settlement from the government which had been obtained by practicing fraud.

Defendant  No.  1  contested  the  suit  by  filing  a  written statement contending, inter alia, that the plaintiffs’ case is false and subcontracted.

After hearing the parties the learned Joint District Judge and  Senior  Assistant  Judge  (In-Charge),  Sadar,  Madaripur dismissed the suit by the judgment and decree dated 30.04.2009.

Being aggrieved the present petitioners as the appellants preferred the Title Appeal No. 33 of 2009 in the court of the learned District Judge, Madaripur who transferred the matter to the learned Additional District Judge, Madaripur for hearing and disposal and immediately after receiving the file of the Title Appeal  No.  33  of  2009  from  the  learned  District  Judge, Madaripur who took the matter for hearing on 13.05.2010. The present  respondents  appeared  in  the  appeal  and  filed  an application for adjournment. The said Additional District Judge, Madaripur took the appeal for hearing and the present petitioners as  the  respondents  made  their  submissions.  Therefore,  the learned appellate court below only heard the respondents without considering the adjournment application filed by the defendant- opposite parties, the learned appellate court below-passed the Order No. 19 dated 17.01.2011allowing the said application by setting aside the exparte judgment and decree dated 13.05.20010.

Being aggrieved the present defendant-opposite party Nos. 1 and 2 filed an application under Order 41 (XLI) rule 21A of the Code of Civil Procedure for rehearing the Title Appeal No. 33 of 2010  afresh  by  restoring  the  original  number  of  it  dated 13.05.2010 passed the original Title Appeal No. 33 of 2009. The learned Additional District Judge, Madaripur allowed the said application  by  setting  aside  the exparte judgment  and  decree dated 13.05.2010 by his Order No. 19 dated 17.01.2011. Being aggrieved the present petitioners filed this revisional application under  section  115(1)  of  the  Code  of  Civil  Procedure  for challenging  the  legality  of  the  said  order  of  restoration  and rehearing of the appeal and the Rule was issued thereupon.

This matter has been appearing in the daily cause list for a long  period  of  time  but  no  one  appears  to  support  the  Rule despite several messages that have been given from this court as to  the  appearance  and  hearing  of  this  matter.  However,  the petitioners took a ground in the revisional application that the learned Additional District Judge, Madaripur has committed an error of law resulting in an error in the decision occasioning failure of justice in setting aside the judgment and decree dated 13.05.2010 inasmuch as the opposite party Nos. 1 and 2 have filed the application on 20.05.2010 for setting aside the order dated 13.05.2010 restoring appeal only but not the judgment and decree dated 13.05.2010 respectively passed in the Title Appeal No. 33 of 2009, as such, the impugned order is liable to be set aside.

The present Rule has been opposed by the present opposite party Nos. 1 and 2.

Mr.  A.  S.  M.  Khalequzzaman,  the  learned  Advocate, appearing on behalf of the present opposite parties submits that the present petitioners as the plaintiffs failed to prove their own case  in  the  learned  trial  court,  therefore,  preferred  an  appeal which  was  heard  by  the  learned  Additional  District  Judge, Madaripur  who  passed  the  judgment  and  decree  exparte disregarding the prayer for adjournment of the hearing of the appeal but the learned appellate court below without considering the application for adjournment/time on the same day already receipt of the appeal file sent from the learned District Judge, Madaripur, on the other hand, the learned appellate court below upon receipt of an application under Order XLI (41) rule 21A of the Code of Civil Procedure and restored the appeal by passing the impugned judgment and order and thereby committed no error of law but the present petitioners obtained the present Rule by misleading the court.

The learned Advocate further submits that the provision of Order XLI (41) rule 21A of the Code of Civil Procedure gave authority to the learned appellate court below directly rehearing an  appeal  that  was  heard  exparte.  Upon  paying  a  cost  not acceding Tk. 1000/- but the applicant must have failed such an application within 30 (thirty) days from the date of the order passed,  as  such,  the  learned  appellate  court  below  properly construed  the  provision  of  law  by  passing  the  impugned judgment and order, as such, this court does not need to interfere upon the said judgment and order.

Considering the above submission made by the learned Advocate appearing for the opposite parties and also considering the revisional application filed by the present petitioners under section 115(1) of the Code of Civil Procedure along with the annexures  therein,  in  particular,  the  impugned  Order  No.  19 dated  17.01.2011,  it  appears  to  this  court  that  the  present petitioners as the plaintiffs filed a title suit claiming title and cancellation of the Settlement Case which was ordered in favour of the present opposite parties. The suit was heard by the learned trial  court  and  obtained  all  require  evidence  adduced  and produced by the parties. The learned trial court after completing the long hearing of the said matter came to a conclusion and decision by dismissing the title suit.

The  present  plaintiff-petitioners  preferred  an  appeal before the learned District Judge, Madaripur who transferred the same  for  disposal  to  the  learned  Additional  District  Judge, Madaripur who was pleased to allow the appeal on merit by the judgment and decree dated 13.05.2010 and thereby reversing the judgment  and  decree  passed  by  the  learned  trial  court.  The learned Additional District Judge, Madaripur received the file of the appeal and stated hearing of the appeal. It further appears that the  present  opposite  parties  as  the  respondents  filed  an application for adjournment but the learned appellate court below took up the matter for hearing without allowing any adjournment and immediately allowed the said application by setting aside the exparte judgment and decree dated 13.05.2010 by his Order No. 19  dated  17.01.2011,  as  such,  the  present  petitioners  as  the

appellants  presented  their  own  case.  Finally,  the  learned appellant court below passed the judgment and order only to hear the  appellants  and  without  making  any  decision  as  to  the application for adjournment submitted by the present opposite parties.

The settled principle of law is that a judgment should be passed after hearing both parties within a reasonable time. In the instant  case,  the  learned  appellate  court  below  took  an unreasonable  step  to  hear  only  a  party  immediately  after receiving the record of appeal from the learned District Judge, Madaripur. The learned appellate court below took up to rush hearing of the appeal within the same day of receiving the lower court records of the appeal which was sent from the learned District Judge, Madaripur. As the lower court record of this case has not been called for by this court at the time of Rule issuing order and generally lower court record does not call for when the revisional application is filed against the order, as such, I do not have a benefit to examine this fact.

The settled principle of law is that a case must be decided upon  hearing  both  the  parties  and  also  after  considering  the evidence adduced and produced by the parties.

In  the  instant  case,  the  present  petitioners’  case  was dismissed by the learned trial court  but the learned appellate court  below  hurried  to  take  this  matter  on  the  same  day  on receipt of the record of the appeal which is not acceptable for applying  judicial  mind,  as  such,  this  is  a  case  of  non- consideration of evidence or documents adduced and produced by the parties before the court. However, the learned appellate court  below  passed  the  impugned  judgment  in  the  following manner:

…“Aœ Bf£­ml e¢b fkÑ¡­m¡Qe¡u ®cM¡ k¡u ¢hNa 13/05/2010 Cw a¡¢lM ®cJu¡e£ Bf£m Aœ¡c¡m­a hce£ qCu¡ B­p Hhw I a¡¢l­M HLalg¡i¡­h Eš² Bf£m öe¡e£ A ¿¹ B cn fËc¡e

Ll¡ quz clM¡Ù¹L¡l£ ¢hh¡c£ ®lpfe X¾V Eš² 13/05/2010 Cw

a¡¢l Ml HLalg¡ l¡u J ¢Xœ²£ lc J l¢qaœ²­j Bf£m f¤ex öe¡e£l ¢e¢j­š ¢hNa 20/05/2010 Cw a¡¢l M ®cx L¡x ¢hx BC el 41

B c nl 21H ¢h¢d Ae¤p¡­l H¢g­X¢iVpq Aœ clM¡Ù¹ Beue L¢lu¡ Rz clM¡Ù¹L¡l£ ¢hh¡c£ ®lpfe X¾V ®cx L¡x ¢hx BC el 41 B­c­nl 21H ¢h¢dl p¤¢hd¡ C¢af§­hÑ Aœ Bf£­m NËqZ L­l e¡Cz”…

In view of the above decision taken under Order 41 (XLI) and rule 21A of the Code of Civil Procedure by the learned appellate court below and the principle laid down in the above provision of law of the Code of Civil Procedure, I am of the opinion that the learned appellate court below made decision on the basis of law and upon application of judicial mind. As such, this is not a case for interference upon the impugned judgment and order. The main intention of the court is to apply a judicial mind in order to make a decision in a case by obtaining evidence in hearing the appeal for finalizing the decision of the matter on merit.

Accordingly, I do not find merit in the Rule.

In the result, the Rule is hereby discharged.

The  interim  order  passed  by  this  court  at  the  time  of issuance of this Rule staying the operation of the impugned and order dated 17.01.2011 passed by the learned Additional District Judge, Madaripur in the Restoration Case No. 03 of 2010 and all further proceedings of the Title Appeal No. 33  of 2009 now pending before the court of the learned Additional District Judge, Madaripur for a period of 6 (six) months and later on the same was extended till disposal of this Rule are hereby recalled and vacated.

The  learned  Additional  District  Judge,  Madaripur  is hereby directed to rehear the appeal after notifying the present petitioners, as no one appears before this court, without issuing

any notice upon the respondent-opposite parties' responsibility for informing the opposite parties.

The learned Additional District Judge, Madaripur is also directed to hear and conclude the trial for a decision within 8 (eight) months from the date of the receipt of this judgment and order.

The concerned section of this court is hereby directed to communicate this judgment and order to the learned Additional District Judge, Madaripur immediately.