Present:

Mr. Justice Md. Salim

CIVIL REVISION NO.3831 OF 2006

Abdus Sobhan Gharami

      .............. Plaintiff-Petitioner.

-VERSUS-

Government of the Peoples Republic of Bangladesh, represented by the Deputy Commissioner, Patuakhali and others.

................. Defendant-Opposite Parties.

Ms. Chowdhury Nasima, Advocate

------- For both the Petitioner. Mr. Waliul Islam Oli, D.A.G. with

Mr. Mohammed Shaif Uddin Raton, A.A.G Mr. Md. Nazrul Islam Choton, A.A.G.

Mr. Md. Nasimul Hasan, A.A.G.

------ For the Opposite Parties.

Heard on 31.10.2024 Judgment on 07.11.2024

By this rule, the opposite parties were called upon to show cause as to why the impugned judgment and order dated 30.03.2006  passed  by  the  District  Judge,  Patuakhali  in Miscellaneous Appeal No.46 of 2005 dismissed the appeal and affirmed the judgment and order dated 31.10.2005 passed by the  Joint  District  Judge,  2nd  Court,  Patuakhali  in Miscellaneous Case No.16 of 2004 rejecting the case should not be set aside.

The petitioner, as plaintiff, instituted Title Suit No.35 of 1995  before  the  Senior  Assistant  Judge,  Patuakhali,  for  a permanent injunction against the defendants. The suit was transferred to the Joint District Judge, 2nd Court, Patuakhali, and renumbered as Title Suit No.10 of 2002. Subsequently, the suit was fixed for a preemptory hearing on 11.10.2004, and on that date, the suit was dismissed for default for non- appearance of the plaintiff petitioner.

After  that,  the  plaintiff  petitioner  on  09.11.2004  filed Miscellaneous Case No.16 of 2004 under Order IX, Rule 9, read  with  Section  151  of  the  Code  of  Civil  Procedure  for restoration of Title Suit No.10 of 2002 on setting aside the dismissal order for default.

The defendant-opposite party nos.1-3 contested the case by  filing  a  written  statement  denying  all  the  material allegations made in the application for restoration.

The petitioner side examined one witness to prove his claim; on the other hand, the opposite party examined none. Subsequently, the learned 2nd Joint District Judge, Patuakhali, by  the  judgment  and  order  dated  31.10.2005,  rejected  the Miscellaneous Case.

Being  aggrieved  by,  the  plaintiff,  as  appellant,  has preferred  Miscellaneous  Appeal  No.46  of  2005  before  the District  Judge,  Patuakhali.  Eventually,  the  learned  District Judge,  Patuakhali,  dismissed  the  appeal  with  a  cost  of Tk.500/-  by  the  judgment  and  order  dated  30.03.2006, affirming those passed by the trial Court.

Being  aggrieved  by,  the  plaintiff-petitioner  filed  the present  Civil  Revision  before  this  court  and  obtained  the instant rule, with an order of status quo extended from time to time.

I have considered the submission of the learned advocate for both parties perused the impugned judgment and other materials on record. Before I advert to the contentions raised from the side of the petitioner, it will be appropriate to quote the relevant provision of Order IX Rule 9 of the Code of Civil Procedure, which runs as follows:

“9 (1) Where a suit is wholly or partly dismissed under rule  8,  the  plaintiff  shall  be  precluded from  bringing  a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his  non-appearance  when  the  suit  was  called  on  for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.”

It reveals that if a suit was dismissed for non-appearance of the plaintiff at the time of the call for hearing the suit, the plaintiff applied to set aside the dismissal order of the suit then if he can satisfy the court that there was a sufficient cause  for  non-appearance  when  the  suit  was  called  for hearing. The court shall set aside the dismissal order with an order of cost.

The learned Joint District Judge, 2nd Court, Patuakhali, while rejecting the application, held that the petitioner himself was examined as P.W.1 and claimed that on the date fixed for hearing of the suit, he had jaundice and high blood pressure. Thus,  he  could  not  appear  before  the  court.  The  plaintiff, though, exhibited a medical certificate and proved the sickness of the petitioner but failed to produce the doctor who issued the certificate about his sickness. Therefore, the application had no merit. While dismissing the appeal, the Appellate Court below affirmed the trial Court’s order with the same grounds taken by the trial Court.

From all the materials, events, facts, circumstances, oral and  documentary  evidence,  and  the  plaintiff  petitioner’s conduct, it became clear that he was prevented by sufficient

cause from appearing in court when the suit was called on for a peremptory hearing.

On perusal of the judgment and order of both the courts below, it seems that in deciding the Miscellaneous Case and the Miscellaneous Appeal, the learned Judges did not keep in mind the provision of Order IX Rule 9 of the Code of Civil Procedure and misdirected themselves in their approach on the matter. Moreover, the plaintiff had made out a case with sufficient cause for non-appearance before the court; thus, the application for restoration of the suit is required to be granted. 

On  the  above  facts,  circumstances  of  the  case,  and discussions made herein above, I am of the firm view that the learned District Judge, Patuakhali, did not correctly appreciate and  construe  the  documents  and  materials  on  record  in accordance with the law in affirming the judgment and order of the trial court which suffers from legal infirmity and perversity and as such, the same is liable to be set aside.

Resultantly, the rule is made absolute with a cost of Tk.2000/-.

The  impugned  judgment  and  order  dated  30.03.2006 passed  by  the  learned  District  Judge,  Patuakhali,  in Miscellaneous Appeal No.46 of 2005, dismissing the appeal and  affirming  the  order  dated  31.10.2005  passed  by  the

learned  Joint  District  Judge,  2nd  Court,  Patuakhali  in Miscellaneous Case No.16 of 2004 is hereby set aside.

Let title Suit No.10 of 2002, which was dismissed for default, be restored to its original file and number.

Communicate this judgment and send down the record at once.

……………………. (MD. SALIM, J).

Kabir/BO