District- Shariatpur

In the Supreme Court of Bangladesh High Court Division

(Civil Revisional Jurisdiction)

Present:

Mr Justice Md Atoar Rahman

Civil Revision No 4855 of 2014

Jahangir Alom

…defendant-appellant-petitioner

- versus-

Shamsul Haque Sarder

…plaintiff-respondent opposite party

Mr Mohammad Hossain, Advocate

….for the defendant-appellant-petitioner Mr Md Rafiqul Islam, Advocate with

Mr Bikash Chandra Das

… for the plaintiff-respondent opposite party

Heard on: 21.11.2023, 22.11.2023, 23.11.2023 and 28.11.2023

Judgment on 05.12.2023

This Rule was issued on an application under section 115(1) of the Code of Civil Procedure, 1908 calling upon the opposite party No 1 to show cause as to why the judgment and order dated 01.06.2014 passed by the learned Joint District Judge, 1st Court, Shariatpur in Miscellaneous Appeal No 04 of 2010 dismissing the appeal and affirming the judgment and order dated 04.10.2009 passed by the learned Assistant Judge, Sadar Chikondi, Shariatpur in Miscellaneous Case No 15 of 2007 dismissing the miscellaneous case filed under Order IX rule 13 read with section 151 of the Code of Civil Procedure

for setting aside the exparte judgment and decree dated 20.11.2005 and 27.11.2005 respectively passed in Title Suit No 44 of 2002, should not be set aside and/or passed such other or further order or orders as to this court may seem fit and proper.

The opposite party No 1 as plaintiff instituted Title Suit No 44 of 2002 in the Court of Assistant Judge, Sadar Chikondi impleading the predecessor of the petitioner and opposite parties No 2 and 3 Abul Hashem Matbor and 31 others as defendants for partition of 1.51 acres of land described in schedule “Ka” of the plaint.

The predecessor of the petitioner Abul Hashem Matbor as defendant No 7 was contesting the suit along with others filing a joint written statement. During pendency of the suit he died and after his death all of his legal heirs including the petitioner were substituted as defendants No 7(Ka) to 7 (Jha) vide order dated 09.03.2005. Upon taking evidence and hearing the contesting parties on 20.11.2005 the trial court decreed the suit on contest against the defendants No 1, 2, 3, 4, 7 to 11 and 14 and exparte against the rests.

The petitioner and the opposite parties No 2 and 3 filed Miscellaneous Case No 15 of 2017 under Order IX rule 13 of the Code of Civil Procedure for setting aside the said exparty judgment and decree before the learned Assistant Judge, Sadar Chikondi, Shariatpur who after concluding the trial was pleased to dismiss the miscellaneous case vide judgment and order dated 04.10.2009, against which the petitioners of the said miscellaneous case filed Miscellaneous Appeal No 04 of 2010 before the learned District Judge, Shariatpur. On transfer the appeal was heard by the learned Joint District Judge, 1st Court Shariatpur who was pleased to dismiss the same by his judgment and order dated 01.06.2014.

Being aggrieved by and dissatisfied with the above judgment and order of the appellate court the petitioner moved this court with this application under section 115(1) of the Code of Civil Procedure and obtained the present Rule.

Mr Mohammad Hossain, the learned Advocate appearing on behalf of the petitioner submitting in support of the Rule has stated that the learned appellate court in dismissing the miscellaneous appeal has committed an error of law resulting in an error in the decision occasioning failure of justice and as such, the impugned judgment and order passed by the learned Joint District Judge passed in the miscellaneous appeal is not sustainable in law and therefore, the exparte decree is liable to be set aside.

Mr Md Rafiqul Islam, the learned Advocates appearing on behalf of the opposite parties opposes the Rule

I have heard the submissions placed by the learned Advocates for both the sides and perused the record along with the impugned judgment and order and other connected papers.

On perusal of the trial court’s re