RAISUDDIN (MD) Vs. SITARAM BHAR
SUPREME COURT OF BANGLADESH
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MD.ABDUL AZIZ,J. -
(1.) This First Miscellaneous Appeal is directed against Order No. 85 dated 16-2-97 passed by the learned Additional District Judge, Moulvibazar dismissing the Miscellaneous Case No.3711995 under Order 41, rule 19 of the Code of Civil Procedure brought by the plaintiff-appellant.
(2.) The facts of the Case, in short, inter alia, is that the plaintiff-appellant brought Title Suit No. 117/1984 in the Court of Assistant Judge Kamalganj Upazilla, Moulvibazar for declaration of title and rectification of Kabala deed which was dismissed on 27-3-86 on contest. The plaintiff filed a title Appeal being Title Appeal No.118 of 1986 before the learned District Judge which was dismissed for default on 4-9-1995. The plaintiff-appellant filed an application under Order 41, rule 19 of the Code of Civil Procedure for re-admission of the appeal on which Miscellaneous Case No. 37 of 1995 was started. The said miscellaneous Case was dismissed for default on 23-1-1996. The plaintiff-appellant filed an application under section 151 of the Code of Civil Procedure for restoration of the said Miscellaneous Case on setting aside the order dated 23-1-96 which was rejected by the Court vide its order dated 29-6-96. The plaintiff-appellant again filed another application under section 151 of the said Code which was, however, allowed by the Court vide its order dated 14-8-96 for restoring the Miscellaneous Case No.37 of 1995 setting aside the order dated 23-1-96. Thereafter the appellate Court below took up the application filed by the plaintiff-appellant under Order 41, rule 19 of the Code in Miscellaneous Case No.37 of 1995 for hearing and rejected the same by the impugned order. Being aggrieved by the aforesaid impugned order dated 16-2-97 the plaintiff-appellant preferred this appeal.
(3.) Mr. Md. Mahbub Ali, the learned Advocate appearing on behalf of the plaintiff-appellant submits that the impugned order suffers from serious infirmity in not considering and giving any finding on the legal requirement of rule 19 of Order 41 of the said Code as to whether the appellant was prevented by any sufficient cause from appearing when the appeal was called on for hearing and, as such, the impugned order is liable to be set aside. He further submits that the appellate Court below having given his full consideration on the laches and negligence of the plaintiff-appellant in pursuing the proceeding while rejecting the aforesaid application the impugned order is not sustainable in law in view of the provisions of rule 19, Order 41 of the Code of Civil Procedure. Mr. Ali further submits that the plaintiff-appellant having filed the suit paying ad valorem Court-fee and pursued the original suit with utmost care and sincerity, the appellant-litigant should not be deprived of his right of hearing of his grievance on frivolous ground but should be given an opportunity to get the matter heard on merit. He further submits that the application filed by the plaintiff-appellant under Order 41, rule 19 of the Code of Civil Procedure was also accompanied by an application under section 5 of the Limitation Act and neither the application under rule 19, Order 41 of the said Code nor the application under section 5 of the Limitation Act having been opposed and controverted by the defendants-respondents and there being no evidence taken in the Case on the issues both on sufficient cause and on limitation, the appellate Court below has wrongly dismissed the miscellaneous Case finding the same as barred by limitation. In support of his submission Mr. Ali has referred a Case between Mrinal Kanti Guha and others Vs. Brajendra Lal Dhar and others, reported in 44 DLR (AD) 9.;
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