Present:

Mr. Justice Md. Kamrul Hossain Mollah

Civil Revision No.2677 of 2022

IN THE MATTER OF:

An application under Section 115 (1) of the Code of Civil Procedure

- AND -

IN THE MATTER OF:

Zohara Begum and others

... Petitioners

-Versus –

Md. Hashem

... Opposite Party Mr. Abdul Momen Chowdhury, Advocate

…. For the petitioner Mr. Samir Kumar Chowdhury, Advocate

…For the Opposite Party

Heard on 17.01.2024, 18.01.2024 and Judgment on 24.01.2024

Md. Kamrul Hossain Mollah, J:

On an application filed by the petitioners, under section 115(1) of the

Code of Civil Procedure, leave was granted and this Rule was issued calling upon the opposite party No.1 to show cause as to why the judgment and order No.30 dated 22.02.2022 passed by the learned Additional District Judge, 3rd Court, Chattogram in Civil Revision No.182 of 2015 allowing the said civil revision should not be set-aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

At the time of issuance of the Rule this Court stayed the operation of the impugned judgment and order dated 22.02.2022 for a period of 06(six) months from date.

Facts necessary for disposal of the Rule, in short, are that the scheduled land belonged to the defendant No.1 who sold the scheduled land to the plaintiff at a price of 27,00,000/-. The defendant No.1 has no other room to stay, so he wanted to stay at the disputed land until he makes provision elsewhere. They considered his prayer and granted to stay at the suit land with permissive possession. Eventually the defendant No.1 on different pretext declined to handover possession to the plaintiff-opposite party. The plaintiff-opposite party revoked the permission of possession and issued lawyer’s notice for handover the schedule land, but the notice was sent back to the plaintiff with a remark that the notice could not be served due to the absence of the defendant No.1. In this situation the opposite party had no other alternative, but to file the suit claiming the recovery of possession.

Eventually the news of filing of Other Suit No.186 of 2009 came to the petitioner knowledge and on inspection of the record of the case the petitioner was confirmed about the filing of the suit. Under the circumstances the petitioner filed a petition under order 1 Rule 10 of the Code of Civil Procedure to add them in place of the defendant No.1. The petitioner contending inter-alia stated that the defendant No.1 is an insane and mentally unsound. He was admitted to Pabna Mental Hospital and after recovery he came back to his home on the scheduled land. The defendant No.1 again became mentally sick and left the house and did not return home till the filing of the petition under Order 1 Rule 10(2) of the Code of Civil Procedure. The defendant No.1 was an insane person and he has not executed any document of sale of the schedule land to the plaintiff opposite party. The document of sale is a forged and fabricated document. In the absence of the defendant No.1, the petitioners are needed to contest the suit in place of defendant No.1 otherwise the petitioners will be seriously prejudiced.

After hearing the parties, the learned Senior Assistant Judge, 1st Court, Chattogram allowed the petition by his judgment and order No.37 dated 04.10.2015 in Other Suit No.186 of 2009.

Being aggrieved by and dissatisfied with the judgment and order No.37 dated 04.10.2015 passed by the learned Senior Assistant Judge, 1st Court, Chattogram in Other Suit No.186 of 2009 allowing the application filed by the petitioner under Order 1 Rule 10(2) of the Code of Civil Procedure the plaintiff-opposite party filed Civil Revision No.182 of 2015 before the learned District Judge, Chattogram. Thereafter, the same is transferred to the Court of learned Additional District Judge, 3rd Court, Chattogram for disposal.

After hearing both the parties and upon considering the evidence on record, the learned Additional District Judge, 3rd Court, Chattogram allow