Decided on November 16,1997

Shahidullah (Md) Appellant
MD. YUNUS Respondents


A.T.M.AFZAL,CJ. - (1.) In view of the order we propose to make in this petition for leave to appeal, it will be sufficient to notice that the plaintiff petitioner is making a grievance that FMA No. 42 of 1997 filed by the defendant-respondents which arises out of Miscellaneous Case No. 1 of 1986, under Order XXXIX rule 2(3) of the Code of Civil Procedure, of the Second Court of Subordinate Judge, Dhaka, was heard by a Division Bench of the High Court Division in the absence of the petitioner (respondent in said FMA) and allowed by the impugned judgment and order dated 1st June, 1991 even though in the notice served upon the petitioner the date fixed for hearing of the said appeal was 25 June, 1997. The impugned decision was thus made without the petitioner being heard. In support of his allegation, the petitioner has enclosed a copy of the notice, which clearly states that the FMA No. 42 of 1997 has been set down for hearing on 25 June, 1997.
(2.) Mr. Korban Ali, learned Advocate, entering caveat for respondent No. 1, had no reply to the allegation made by the petitioner. Mr. Korban Ali says that he was not in the High Court Division and so it is difficult for him to refute the allegation.
(3.) There is no reason to disbelieve, prima facie, the allegation made by the petitioner. Nobody should suffer for any wrong done or omission made by a Court. It is a fit case in which the petitioner should move the High Court Division for a rehearing of the appeal and the Court should allow it provided the allegation is found to be correct.;

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