Present

Mr. Justice Mohammad Ullah

Civil Revision No. 3825 of 2022

Md. Meher Jamal and others

... Defendant-appellant-petitioners

-Versus-

Most. Nur Jahan Begum

... Plaintiff-respondent-opposite party

Mr. Md. Saidul Alam Khan, with

Mr. Md. Mosaddek Billah, Advocates

...For the petitioners

Mr. Md. Ashraful Karim, Advocate

... For the opposite party No.1

Heard on: 09.01.2024

Judgment on: 14.01.2024 and 15.01.2024

On an application under section 115(1) of the Code of Civil Procedure, at the instance of the defendant-appellant- petitioners, this Court, by order dated 25.08.2022, issued the Rule calling upon the opposite parties to show cause as to why the impugned judgment and order dated 12.04.2022 passed by the learned Joint District Judge, 2nd Court, Kurigram, in Miscellaneous Appeal No.21 of 2019 dismissing the appeal affirming the judgment and order dated

09.07.2019 passed by the learned Senior Assistant Judge, Ulipur, Kurigram in Miscellaneous Case No. 02 of 2018 rejecting the miscellaneous case filed under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree dated 13.11.2017 passed by the learned Senior Assistant Judge, Ulipur, Kurigram, in Other Suit No.80 of 2008 should not be set aside and/or why such other or further order or orders as to this Court may seem fit and proper shall not be passed.

At the time of issuance of the Rule, operation of the judgment and order dated 13.11.2017 passed by the learned Senior Assistant Judge, Ulipur, Kurigram in Other Suit No.80 of 2008 has been stayed.

The relevant facts for the disposal of the Rule are as follows:

The opposite party, as the plaintiff, instituted Other Suit No.80 of 2008 against the petitioner and others for partitioning the suit land as described in the schedule to the plaint. The suit was decreed ex-parte on 13.11.2017 against the defendants.

The Trial Court allotted saham to the plaintiffs as prayed for.

The defendant filed Miscellaneous Case No.32 of 2016 for setting aside the ex-parte decree, which was allowed with a cost of taka 500/- and the suit was restored to its original filed and number.

Subsequently, the Trial has been proceeded. This time, the defendant did not turn up to the Court, and as such, the Trial Court, having considered the materials on record, decreed the suit ex-parte against the defendant.

Against which the defendant filed Miscellaneous Case No.02 of 2018 under order IX rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree.

The Trial Court, having considered the evidence on record, disallowed the miscellaneous case on the contest against the opposite party No.1.

The Trial Court held that having set aside the ex-parte decree, though the petitioners were allowed to contest the original suit, they willingly did not turn up to contest the suit, and as such, the suit was decreed ex-parte against them. So, the Trial Court refused to restore the suit.

The appellate Court, having not found any illegality in the judgment and order of the trial court, dismissed the appeal and thereby affirmed the trial court's order.

I have heard the learned Advocate from both parties and considered the materials on record, wherefrom it transpires that the suit was initially decreed ex-parte against the petitioner and others and the plaintiff got saham as prayed for. It appears that the contesting defendant filed Miscellaneous Case No.32 of 2016 for setting aside the ex- parte decree and restoring the suit to its file and number.

The Trial Court allowed the miscellaneous case with a cost of taka 500/- allowing the defendant to contest the suit by filing a written statement. When the defendant consecutively did not turn up to the Court to file a written statement and contest the suit, the trial court again decreed the suit ex-parte.

The Trial Co