Present:

MR. JUSTICE S.M. EMDADUL HOQUE

Civil Revision No. 2099 of 2023.

IN THE MATTER OF:

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

A N D

IN THE MATTER OF:

Syed Ahsan Millad Applicant-Appellant-petitioner

-Versus –

Syed Ahsan Jalal and another

opposite party

Mr. Mobarak Hossain, with

Mr. Purnindu Bikash Das, Advocates

….. for the Petitioner.

Heard and Judgment on: 20.03.2024.

On an application of the petitioner Syed Ahsan Millad under section 115(1) of the Code of Civil Procedure the Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and order dated 16.05.2023 passed by the District Judge, Dhaka in Miscellaneous Appeal No.98 of 2023 dismissing the appeal and thereby affirming the judgment and order dated 13.03.2023 passed by the Joint District Judge, 2nd Court, Dhaka in Miscellaneous Appeal No.35 of 2021 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 party No.1 as plaintiff instituted Title Suit No.15 of 2020 in the Court of Joint District Judge, 2nd Court, Dhaka for declaration of title in respect of the ‘Ka’ schedule land and further declaration that the deed described in the schedule ‘Kha’ to the plaint is illegal, void and not binding upon the plaintiff.

The defendant did not appear in the suit and the matter was taken up for ex-parte hearing and accordingly the suit was decreed ex- parte on 31 August, 2021.

The petitioner after came to know the said ex-parte decree filed an application under Order IX rule 13 read with Section 151 of the Code of Civil Procedure for setting-aside the ex-parte decree and accordingly the Miscellaneous Case No.35 of 2021 was started.

The further case is that the defendant-petitioner filed the miscellaneous case through his attorney and at the time of filing the miscellaneous case his appointed attorney produced the photo copy of the power of attorney being No.7987 of 2021.

The plaintiff side raised objection against the said photo copy of the power of Attorney and then the Court directing the petitioner to submit the original copy of the same, but the defendant-petitioner failed to produce the original power of attorney.

Thereafter, the plaintiff-opposite party filed an application under Order XI rule 14 of the Code of Civil Procedure for dismissal of the case for non-compliance of the Courts order.

The next date fixed on 13.03.2022 and on the said day the attorney of the petitioner filed an application stating the facts that the originally power of attorney was lost which he made a G.D entry and submitted the said G.D entry to the Court. Furthermore, subsequently the petitioner again executed a fresh power of attorney being No.11982 of 2022 while he was staying in U.S.A and which was filed to the Court but the trial Court after consideration of the facts and circumstance of the case did not allow the said application and dismissed the miscellaneous case for want of prosecution under Order XI Rule 21 for non production of the documents by its judgment and order dated 13.03.2023.

Against which the petitioner filed Misc. Appeal No.98 of 2023 before the learned District Judge, Dhaka. The learned District Judge after hearing the parties and considering the facts and circumstance of the case dismissed the misc. appeal and thereby affirming the judgment and order of the trial Court summarily by its judgment and order dated 16.05.2023.

Being aggrieved by and dissatisfied with the impugned judgment and order of the Courts below the petitioner filed this revisional application under Section 115 (1) of the Code of Civil Procedure and obtained the Rule.

Mr. Mobarak Hossain, the learned Advocate along with Mr. Purnindu Bikash Das, Advocate appearing on behalf of the petitioner submits that both the Court committed error in law resulting

in an error in the decisions occasioning failure