Verdict Under Light-CIVIL APPEAL NO. 15 OF 2019

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BD Legal Times September 2020 (AD) 34
APPELLATE DIVISION
CIVIL APPEAL NO. 15 OF 2019

Syed Mahmud Hossain CJ
Hasan Foez Siddique J
Zinat Ara J
Md. Nuruzzaman J

Judgment
11th December, 2019

Mahmuda Khatun and others

…… Appellants

Vs

Hamida Begum died leaving behind her heirs:1(Ka). Md.
Aminur Rahman and others

…..Respondents

 

Rules 19A & 30, Order XLI CPC

The law has provided the provision that judgment shall have to be pronounced in open Court at once or any other day and there is no room to dismiss the appeal for default. Therefore, the order of dismissal recorded while appeal was fixed for judgment by the learned Additional District Judge, 5th Court, Dhaka and judgment of the High Court affirming the same by the single Judge caused serious miscarriage of justice which ought to have been set aside.
…. Para 21

A Court of appeal on concluding the hearing of appeal from both the sides on merit without pronouncing judgment cannot dismiss the appeal for default.
…. Para 22
Law Referred:
Code of Civil Procedure

Case Referred :
Md. Haleem and others vs. H.H. Md. Naim and others, 21 DLR (SC) 347 (1969)
Mr. Delawar Hossain – Advocate for the Appellants
Mr. Qumrul Haque Siddique – Advocate for the Respondents

Judgement

Md. Nuruzzaman, J:

This Civil Appeal, by leave, has arisen out of the judgment and order dated 10.04.2017 passed by the High Court Division in First Miscellaneous Appeal, in short, F.M.A No.56 of 2016 dismissing the appeal and affirming the judgment and order dated 06.10.2015 passed by the learned Additional District Judge, 5th Court, Dhaka dismissing the Title Appeal No.328 of 2010, rejecting an application under Rule 19A, Order XLI of the Code of Civil Procedure (hereinafter referred to as the Code) filed by the appellants for setting aside the order of dismissal of the appeal, directing readmit the appeal.
2) Facts leading to filing this civil appeal, in short, are that:
The plaintiff-respondent herein instituted Title Suit No.363 of 1983 before the Subordinate Judge(now Joint District Judge), fourth Court, Dhaka for declaration of title and recovery of khas possession stating, inter alia, that the land measuring an area of 1.45 acres appertaining to C.S. Plot No.1621/873 of Khatian No.586, Mouza – Senpara Porbota under Police Station-Mirpur originally belonged to Keramat Ali Mollah. While he was in peaceful possession and enjoyment of the same, he died leaving behind his two sons, namely Mokim Mollah and Shamsuddin Mollah, five daughters, namely, Kulsum, Neamat, Asimon, Samiron and Shohran and a widow, named Fatema. Thus, each son got .281964 acre of land, each daughter got .140972 acre of land and the widow got .18125 acre of land of the said plot. Thereafter, widow-Fatema, sold her entire share to Shamsuddin Mollah on 27.06.1957. Subsequently, Shamsuddin Mollah and Azimonnessa sold .26 acre of land from the said plot to the plaintiff-respondent and Musammat Lutfunnessa and handed over the possession of the said land to them on 02.04.1962. The plaintiff got the possession of the western half of the .26 acre of land by amicable partition and constructed boundary walls as described in the schedule ‘A’ to the plaint. She got her name mutated in the Khatian and has been paying rent to the Government for the said land. Moreso, R.S. record of right has been correctly published in her name. The plaintiff constructed huts thereon and had been residing in a portion of the said land, letting out the other portion. While the plaintiff had been in exclusive possession and enjoyment of the suit land by exercising 16 annas right, title and interest adversely and openly to all including the defendants for more than 12 years, the defendant No. 1 forcefully entered into a portion of the suit land in the last part of October, 1981 and dispossessed the plaintiff from the .06 (six) acre of land as described in schedule-“B” to the plaint as suit land in her absence. The defendant No. 1 had no right, title and interest in the suit land but he illegally entered into ‘B’ scheduled land. Hence, was the suit.
3) The defendants contested the suit by filing written statement denying all the material allegations made in the plaint contending, inter alia, that the plaintiff-respondent had no locus standi for filing the suit against them, the suit was not maintainable, the plaintiff had no cause of action for filing the suit against them. The suit was barred by limitation and provisions of waiver, acquiescence and estoppel. It was further contended that the suit land originally belonged to Mokim Ali. After his death, his son Nurul Islam alias Noor Islam, defendant No. 3 and his mother-Fatema Khatoon alias Fatema Bibi inherited the same. Fatema Khatoon sold her entire land to Nurul Islam by registered Sale Deed No.5652 dated 09.10.1963 and handed over the possession to him on the same day. Nurul Islam sold .07 acre of land from the Mouza Senpara Porbota, J.O. No.99, S.A. Khatian No. 691 and S.A. Plot No. 1621/873 to the defendant No.l by registered Sale Deed Nos. 1489 dated 12.04.1980, 2302 dated 12.04.1980 and 5758 dated 16.09.1980 and handed over the possession in favour of him. The defendant No.l had constructed a residential house in his purchased land and had been residing therein along with his family. He also got mutated his name vide Mutation Case No. 738 (M) 80-81 dated 28.11.1980 and a separate Khatian being No. 691/35 had been opened in his name. He had been regularly paying rents to the Government. The defendants did not at all dispossess the plaintiff-respondent from the suit land and as such, the suit was liable to be dismissed.
4) The defendant No.1, Md. Shamsul Huda, filed Title Suit No. 1213 of 1981 against the plaintiff-respondent before the Subordinate Judge (now Joint District Judge), Fourth Court, Dhaka, eventually the same was transferred to the Court of Joint District Judge, Additional Court, Dhaka which was renumbered as Title Suit No. 11 of 1994. The respondent herein as plaintiff, filed Title Suit No.363 of 1983 against the defendants before the Court of Subordinate Judge (now Joint District Judge), 4th Court, Dhaka. The same was transferred to the Court of Joint District Judge, Additional Court, Dhaka, which was also renumbered as Title Suit No.10 of 1994.
5) The trial Court heard both the suits analogously, decreed the Title Suit No.10 of 1994 and dismissed the Title Suit No.11 of 1994 by the judgment and decree dated 31.08.2010.
6) Feeling aggrieved by the judgment and decree dated 31.08.2010 passed by the trial Court in Title Suit No. 10 of 1994, the appellants-defendants herein as heirs of the defendant No.l preferred Title Appeal No.328 of 2010 before the learned District Judge, Dhaka and it was transferred to the learned Additional District Judge, 5th Court, Dhaka. The appeal was heard but eventually dismissed for default on 29.07.2015. Subsequently, appellants-defendants filed an application under Rule 19A, Order XLI of the Code for directing re-admission of the said title appeal before the learned Additional District Judge, 5th Court, Dhaka which was rejected by the judgment and order dated 06.10.2015.
7) Against the judgment and order dated 06.10.2015 passed by the Additional District Judge, Fifth Court, Dhaka in Title Appeal No.328 of 2010, the appellants-defendants preferred F.M.A. No. 56 of 2016 before the High Court Division.
8) In due course, a Single Bench of the High Court Division, upon hearing the parties, dismissed the F.M.A. by the impugned judgment and order dated 10.04.2017.
9) The defendants-appellants feeling aggrieved by the impugned judgment and order dated 10.04.2017 of the High Court Division preferred Civil Petition for Leave to Appeal No.3016 of 2017 before this Division and obtained leave which gave rise to the instant appeal.
10) Mr. Delwar Hossain, the learned Advocate appearing on behalf of the appellants submits that the High Court Division failed to consider that the Additional District Judge misconstrued the spirit of the provision of Rule 19A, order XLI of the Code thereby erroneously rejected the prayer for directing re-admission of the appeal and as such, the impugned judgment and order of the High Court Division is not tenable in law. He further submits that earlier the Additional District Judge heard the appeal from both sides on 30.06.2015 and 12.07.2015 and fixed date for judgment of the appeal on 29.07.2015 and on that date, the learned Advocate appearing for the appellants could not appear due to death of his uncle and prayed for time which was rejected. In such view of the matter, the appellate Court ought to have pronounced the judgment, instead of that, the same was dismissed for default. Further he submits that in view of the provisions of Rule 19A, order XLI of the Code, the learned Additional District Judge, as a court of appeal, had power to direct re-admission of the appeal without requiring proof of sufficient causes but he unlawfully dismissed the appeal, which caused serious miscarriage of justice and as such, the impugned judgment and order of the High Court Division is liable to be set aside. He finally submits that the impugned judgment and order neither legal nor proper and as such, interference is required by this Division for ends of justice. Hence, the instant appeal should be allowed.
11) Mr. Qumrul Haque Siddique, the learned Advocate appearing on behalf of the respondent made submissions in support of the impugned judgment and order of the High Court Division.
12) We have considered the submissions of the learned Advocates of the respective parties. We have gone through the materials on records with impugned judgment and order of the High Court Division.
13) Leave was granted whether the High Court Division failed to appreciate that the learned Additional District Judge misconstrued the spirit of the provision of Rule 19A of the Order XLI of the Code and erred in law in dismissing the appeal for default instead of pronouncement of the judgment as fixed on 29.07.2015 by the learned Additional District Judge, 5th Court, Dhaka.
14) Having considered the facts and legal proposition of the case, we are of the view that we have to interpret the provision of Rule 19A of the Code in its legal perspective which runs as follows:
“19A. Direct re-admission of appeal.-(1) Notwithstanding anything contained in rule 19 or any other law, the Court may, in order to avoid delay and expedite disposal, directly re-admit without requiring the appellant to adduce evidence to satisfy it about sufficient causes as required under rule 19:
Provided that the appeal under this rule shall not be re-admitted unless an application, supported by affidavit, praying for such readmission is made to the Court within thirty days of the date on which the appeal is dismissed for default:
Provided further that no appeal shall be re-admitted more than once under this rule.
(2) As soon as an order under subrule (1) is made to re-admit an appeal, the Court shall cause notice thereof to be served at the cost of the appellant upon the respondent who appeared in the appeal”.
15) Appreciating the provision of Rule 19A it is clearly depicted that the legislature has provided a legal provision to avoid delay and expedite disposal of the appeal by enacting the instant rule. The Court of appeal appropriately and strictly can apply this provision to avoid inordinate delay and pass the appropriate order in accordance with the provision of the rule if the defaulted appellant fulfills the conditions as laid down in the provision of the Rule. The conditions are, the application must be filed within 30(thirty) days from the order of dismissal. The application must be supported by an affidavit. Further provided that no appeal shall be re-admitted more than once under this rule. The judgment and order of the court of appeal does not reflect that the application of the appellant has been disposed of according to provision of law as quoted above. The learned Additional District Judge in passing the judgment and order traveled beyond the provision of law and discussed some facts which are not only irrelevant but surely extraneous for the purpose of disposal the instant application.
16) However, on a careful reading of the judgment of the High Court Division passed in F.M.A. it is divulged that the learned Single Judge of the High Court Division considered the facts of the appeal, not the relevant law. The appeal was dismissed for default by the learned Additional District Judge, Dhaka, although the appeal was heard previously and date was also fixed for pronouncement of judgment.
17) The legal question before this Division is whether the learned Single Judge of the High Court Division is justified in law in dismissing the F.M.A arising from an order dated 06.10.2015 passed by the Additional District Judge, 5th Court, Dhaka rejecting an application under Rule 19A of order XLI of the Code praying for re-admission of appeal.
18) From perusal of the impugned judgment of the High Court Division it is crystal clear that the learned Single Judge in dismissing the First Miscellaneous Appeal neither considered the specific provision as provided in Rule 30, order XLI of the Code for pronouncement of judgment nor considered Rule 19A of order XLI of the Code for directing re-admission.
19) Having considered the judgment of the Judge of the learned Signal Judge of the High Court Division it appears that without considering and determining the above law points as contemplated in Rules 19A and 30 of the order XLI of the Code, the High Court Division dismissed the F.M.A. It is noteworthy to mention that there is a specific provision in the Code for pronouncing the judgment on concluding the hearing on merit under Rule 30, order XLI of the Code which runs as follows:
“30. The Appellate Court after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders.”
20) In the case of Md. Haleem and others Vs. H.H. Md. Naim and others reported in 21 DLR (SC) 347 (1969) it was held as under:
“Dismissal of an application on the ground of the petitioner’s absence after the conclusion of the evidence and when the case was fixed for arguments, improper-Court might dispose of the case upon recorded materials before it”.
21) On a bare reading of the above provision and precedent it appears that the law has provided the provision that judgment shall have to be pronounced in open Court at once or any other day and there is no room to dismiss the appeal for default. Therefore, the order of dismissal recorded while appeal was fixed for judgment by the learned Additional District Judge, 5th Court, Dhaka and judgment of the High Court affirming the same by the single Judge caused serious miscarriage of justice which ought to have been set aside.
22) Furthermore, it is clearly visible that the single Judge of the High Court Division failed to appreciate the provision for direct re-admission as contemplated in Rule 19A, order XLI of the Code; rather misconstrued the provision of law. We are, therefore, of the view that a Court of appeal on concluding the hearing of appeal from both the sides on merit without pronouncing judgment cannot dismiss the appeal for default.
Hence, the impugned judgment calls for interference by this Division.
Accordingly, the appeal is allowed.
The judgment and order dated 10.04.2017 passed by the single Judge of the High Court Division in F.M.A. No. 56 of 2016 affirming the judgment and order dated 29.07.2015 passed by the Additional District Judge, 5th Court, Dhaka in Title Appeal No.328 of 2010 is set aside.
The application for directing re-admission is allowed.
The Title Appeal No.328 of 2010 is revived to its original file and number.
The learned Additional District Judge, 5th Court, Dhaka is hereby directed to hear the said appeal within 2 (two) months positively from the date of receipt of the copy of this judgment, in default, the appeal shall stand dismissed.
Send a copy of this judgment to the learned Additional District Judge, 5th Court, Dhaka for information and necessary steps.

Ed.

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