IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Bashir Ullah

Civil Revision No. 2409 of 2020

In the matter of:

An application under Section 115(4) of the

Code of Civil Procedure, 1908

And

In the matter of:

Md. Abdul Gani and others

---Plaintiffs-Opposite parties-Petitioners.

-Versus-

Jobair Alam @ Arman and others

---Defendants-Petitioners-Opposite parties. Mr. Md. Shahidul Islam, Advocate

---- For the Petitioners. Mr. Mohammad Ali, Advocate

--- For the Opposite Parties.

Heard on: 15.11.2023 Judgment on: 16.11.2023

This Rule was issued calling upon the opposite parties to show cause as to why the judgment and order dated 16.09.2020 passed by the Additional District Judge, First Court, Tangail in Civil Revision No. 28 of 2014 rejecting the revisional application and thereby affirming the judgment and order dated 02.06.2014 passed by the Senior Assistant Judge, Sadar Court, Tangail in Miscellaneous Case No. 72 of 2004 allowing the application under Order 9 Rule 13 of the Code of Civil Procedure and set

aside the preliminary decree dated 12.08.2002 and final decree dated 28.04.2003 passed in Title Suit No.251 of 1994 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

The facts, relevant for the disposal of the Rule, in brief, is that the predecessors of the petitioners as plaintiffs instituted Title Suit No.14 of 1982 in the Court of the then Sub-ordinate Judge, Second Court, Tangail for partition of land described in the schedules to the plaint, praying for their saham of 5.62½ decimels of land out of 26.66 decimels. Subsequently, the suit was transferred to the court of the Senior Assistant Judge, Sadar Court, Tangail and renumbered as Title Suit No. 251 of 1994. The suit was ready for hearing but none of the defendants appeared before the Court. So, the learned Senior Assistant Judge, Sadar Court, Tangail decreed the suit ex parte in preliminary form on 12.08.2002. Thereafter the plaintiff filed Decree Execution case No. 9 of 2003 and the final ex parte decree was delivered on 28.04.2003. The defendant Nos. 140,156 and 157 of the partition suit came to know about the ex parte decree on 09.08.2004 and filed Miscellaneous Case No. 72 of 2004 on 25.08.2004 before the Senior Assistant Judge, Sadar Court, Tangail under Order 9, Rule 13 of the Code of Civil Procedure praying for setting aside the preliminary and final ex parte decree dated 12.08.2002 and 28.04.2003 respectively passed in Title Suit No. 251 of 1994 alleging inter alia that the summons of the suit was not served upon them. They were not aware of the judgment and decree. The plaintiffs as opposite party Nos. 1, 3 and 4 contested the Miscellaneous Case by filing a written objection stating that the petitioners-defendants were aware of the judgment and decree and they received the summons through his full brother, but they did not contest the suit. The Senior Assistant Judge, Sadar Court, Tangail framed as many as two issues for the determination of the dispute between the parties. The petitioners examined as many as three witnesses and opposite parties also examined three witnesses to prove their respective cases. Upon hearing both the parties, considering the evidence on record the Senior Assistant Judge, Sadar Court, Tangail allowed the Miscellaneous Case on 02.06.2014.

Challenging the impugned judgment and order passed by the Senior Assistant Judge, Sadar Court, Tangail in Miscellaneous Case No.72 of 2004, the plaintiffs as petitioners preferred Civil Revision No. 28 of 2014 before the District Judge, Tangail. Subsequently, the Civil Revision was transferred to the Additional District Judge, First Court, Tangail. Upon hearing the parties the Additional District Judge, First Court, Tangail rejected the Civil Revision and upheld the order dated 02.06.2014 passed by the Senior Assistant Judge, Sadar Court, Tangail in Miscellaneou