IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

Present:

Mr. Justice Md. Badruzzaman.

And

Mr. Justice Sashanka Shekhar Sarkar

Civil Rule No. 16 (con) of 2011.

Bilkis Nessa and others.

...Petitioners. -Versus-

Mosammat Parveen Akter and others.

....Opposite parties

Mr. Ataul Gani, Advocate

… For the Petitioners

Mr. Md. Nurul Amin, Senior Advocate

… For the Opposite parties

Heard on: 08.01.2024 and 15.01.2024. Judgment on: 06.05.2024.

Sashanka Shekhar Sarkar, J:

This Rule, at the instance of the Petitioners was issued calling upon the Opposite Parties No. 1 to 14, 16 to18, 22 to 23 and 50 to show cause as to why the delay of 3057 days in filing Appeal against the judgment and decree dated 30.05.2002 (decree signed on 15.07.2002) passed by the learned Joint District Judge (Additional Court), Narayangonj in Title Suit No. 148 of 2001 should not be condoned.

The facts, relevant for disposal of this Rule, in short are that one Most. Parveen Akhtar, now the Opposite Party No. 1 as Plaintiff, filed a suit for partition claiming saham mentioned in the schedule of the plaint impleading as many as 49 persons as Defendants.

The suit was decreed in part on contest against the Defendant No. 1 to 14, 16, 17, 21, 22 and 49 and exparte against the rest.

In the suit for partition, the predecessor of the petitioners Hazi Tara Miah was impleaded as Defendant No. 23 to whom no summon or notice was served. Tara Miah died on 04.09.2001 and the decree was passed in a preliminary form on 30.05.2002.

After the decree was passed, the heirs of Tara Miah now the present Petitioners were brought on record and a show cause notice for temporary injunction was served upon them on 30.01.2004.

Then the heirs of Tara Miah, the present Petitioners having received the notices for the first time came to know about the exparte decree, then on 24.03.2005 prayed for saham of 7 decimals of land from C. S. Khatian No. 60 of Plot No. 77 purchased by their father from the Defendant No. 1 Shamser Ali vide Kabala No. 2865 dated 10.08.1964 but the same was rejected on 14.05.2005.

The Petitioners thereafter having been wrong advised of the lawyer filed Title Suit No. 235 of 2005 for setting aside the exparte decree against them dated 30.05.2002 in which the Opposite Parties No. 3, 6-9 and 12 filed an application under Order VII rule 11 of the Code of Civil Procedure for rejection of plaint which was rejected on 02.03.2006.

The Opposite Parties being aggrieved by the said order, preferred Civil Revision No. 35 of 2006 before the District Judge, Narayangonj and the learned Additional District Judge, vide order dated 16.10.2006 allowed the application rejecting the plaint of the petitioners.

The Petitioners being aggrieved by the said order dated 16.10.2006 preferred Civil Revision No. 4693 of 2006 and ultimately the Rule issued therein was made absolute vide judgment and order dated 08.06.2007 allowing the Defendants to file a Revision afresh to the Honourable High Court Division. Accordingly, Civil Revision No. 1966 of

2009 was preferred and the Honourable High Court Division vide judgment and order dated 02.05.2010 made the Rule absolute affirming the decision of rejection of plaint of the petitioners.

The Petitioners having been defeated in the said Civil Revision in the High Court Division, went to a legal expert who after perusing of all the documents and legal instruments advised them to file an appeal against the judgment and decree passed in Title Suit No. 148 of 2001 and then the Petitioners after collecting the certified copies of the judgment and decree of Title Suit No. 148 of 2001 came to Dhaka on 22.08.2010 but during preparing appeal it was found that the name of the petitioners left out from the plaint and on 16.09.2010 the petitioners were informed to collect the fresh plaint.

Accordingly, the petitioners applied for certified copies of the plaint on 11.10.2010 and the clerk of the concerned lower court’s