IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

Present:

Mr. Justice Md. Badruzzaman.

And

Mr. Justice Sashanka Shekhar Sarkar

FIRST MISCELLENEOUS APPEAL No. 218 OF 2022.

Alhaj Mozammel Hoque Bhuiya

--------- Petitioner-Appellant.

-Versus-

Md. Humayun Kabir

........Opposite Party Respondent.

Mr. Md, Salim Reza Chowdhury, Advocate

........ For the appellant.

Mr. Md. Shamsul Haque, Advocate

...........For the respondent.

Heard on: 21.04.2024, 07.05.2024. Judgment on: 12.05 .2024.

Sashanka Shekhar Sarkar, J

This appeal is directed against the judgment and order dated 31.05.2022 passed by learned Joint District Judge, 1st

Court, Dhaka dismissing Miscellaneous Case No. 16 of 2020 filed under Order IX rule 13 of the Code of Civil Procedure.

The facts, necessary for disposal of the appeal, in short, are that respondent No.1 as plaintiff instituted Title Suit No. 843 of 2011 impleading the appellant as defendant No. 1 for declaration of title in respect of the suit land, contending inter alia that the plaintiff managed to obtain a collusive exparte decree on 11.05.2014 against defendant No. 1 by suppressing summons. Defendant No. 1 had no knowledge about the suit and exparte decree. He for the first time came to know about the exparte decree when he was served upon a written notice by the plaintiff for mutating his name. Thereafter, he filed the Miscellaneous Case for setting aside exparte decree under order IX rule 13 of the Code after 18 days from the date of his knowledge.

The plaintiff contested the case by filing written objections. The learned Joint District Judge, 1st Court, Dhaka

upon hearing of the parties and perusing the evidence and materials on the records dismissed the Miscellaneous case vide Judgment and order dated 31.05.2022 as against that defendant No.1 has preferred this appeal.

Mr. Salim Reza Chowdhury, the learned Advocate, appearing for the appellant submits that the plaintiff managed to obtain a collusive exparte decree against defendant No. 1 without serving any summons and notices upon him. The summons and notices alleged to have been served upon defendant No. 1 was done in collusion with the process server. Defendant No.1 filed the Miscellaneous Case for setting aside exparte decree under Order IX rule 13 of the Code within time of his knowledge. Mr. Salim Reza further submits that it is the

duty of the plaintiff to prove that the summons upon defendant No. 1 was duly served but he totally failed to discharge his duties as the law provides. He lastly submits that defendant No. 1 did not do any delay in filing the case under Order IX rule 13 of the Code and as such, the impugned judgment and order is liable to be set aside. In support of his submissions learned Advocate placed reliance upon the case of Hassan Din and another –Vs- Jalal Din and 2 others reported in 1991 CLC -33, whereat settled that “Application for setting aside ex- parte decree which involved decision on disputed question of facts and law ought not to have been disposed of summarily without proper inquiry by the Court.” In the case of Wazed Ali Sarder(Md)-Vs- Md. Afsanuddin Sarder and others reported in 48 DLR(AD)159 whereat settled that “Once the defendant denies service of summons upon him, whole onus shifts to the plaintiff who has to prove satisfactorily that summons was in fact duly served.” In the case of Soni Gopal Das -Vs- Mohammad Habibullah reported in 10 MLR (AD) 350 whereat settled that “ In a case where the exparte decree is challenged on the ground of non-service of summons in the suit the onus lies upon the plaintiff to prove the service of summons by cogent evidence and by examination of the

disputed signature of the recipient by comparison.” In the case of Md. Hyder Ali Mia – Vs- Razia Begum and others reported in 1 BLT (AD), Page-1, whereat settled that “ To prove the service of summons were duly