Present:

MR. JUSTICE S.M. EMDADUL HOQUE

CIVIL REVISION NO.1129 OF 2019. IN THE MATTER OF:

An application under Section 115 (4) of the Code of Civil Procedure.

- AND -

IN THE MATTER OF:

Md. Hatem Ali Shikder

..... Defendant-Petitioner. -Versus-

A. Salam Khalifa and others

…… Plaintiff-Opposite parties.

Mr. Ajgor Hossain, Advocate

….. For the petitioner.

Mr. Dipayan Saha, Advocate

…. For the opposite parties.

Heard and Judgment on: 29.07.2024.

On an application of the petitioner Md. Hatem Ali Shikder under section 115 (4) of the Code of Civil Procedure the leave was granted and the Rule was issued calling upon the opposite parties to show cause as to why the impugned order No.03 dated 29.11.2018 passed by the learned District Judge, Barishal in Civil Revision No.53 of 2018 reversing the order No.89 dated 28.08.2018 and order No.90 dated 25.09.2018 passed by the Senior Assistant Judge, Bakerganj, Barishal in Miscellaneous Suit No.22 of 2010 arising out of partition suit No.05 of 1988 should not be set-aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

Facts necessary for disposal of the Rule, in short, is that the opposite parties as plaintiffs instituted Title Suit No.5 of 1988 for partition of the suit land before the learned Assistant Judge, Bakerganj, Barishal.

The suit was decreed ex-parte. Thereafter, the defendant petitioner filed Miscellaneous Case No.22 of 2010 before the trial Court for setting-aside the ex-parte decree under Order IX rule 13 of the Code of Civil Procedure.

The trial Court directed the parties to submit C.P cost but ultimately the said miscellaneous case was dismissed for none appearance of the petitioner.

Subsequently, the petitioner filed an application under Order IX Rule 9(A) read with Section 151 of the Code of Civil Procedure. The trial Court after hearing the parties and considering the said application facts and circumstance of the case restored the Miscellaneous Case by its order No.81 dated 05.04.2018 subject to payment of the cost of Tk.10,000/-.

The petitioner failed to deposit the said amounts on the due dates and accordingly the Court recalled the said order by its order dated 12.03.2018 for none payment of the C.P cost.

Against the said order the petitioner filed similar application depositing the C.P cost on the same day. But the Advocate of the petitioner was not present at the time of hearing of the matter and the Court considering the application took view that the application has not been properly filed and accordingly rejected the said application by its order dated 13.03.2018.

On the same day the petitioner on depositing Tk.2000/- again filed an application under Order IX rule 9(A) read with section 151 of the Code of Civil Procedure and the trial Court after considering the facts and circumstances of the case allowed the said application by its order dated 28.08.2018 subject to payment of Tk.5000/- as C.P cost on 25.09.2018.

The petitioner on the same day deposit the C.P cost along with the cost of Tk.2000/- and the Court accordingly considering the facts recalled the order dated 12.03.2018 and restored the miscellaneous case by its order dated 25.09.2018.

Against the said order of the trial Court the plaintiff opposite parties filed revisional application before the learned District Judge under Section 115(2) of the Code of Civil Procedure.

The revisional application was heard and disposed of by the learned District Judge, Barishal, who after hearing the parties and considering the facts and circumstance of the case allowed the revisional application and setting-aside the order of restoration passed by the trial Court dated 28.08.2018 and 25.09.2018.

Being aggrieved by and dissatisfied with the impugned order dated 29.11.2018 of the revisional Court the defendant No.1 as petitioner filed this re