IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

CIVIL REVISION No. 63 OF 2023.

Md. Mahmudul Haque Patowary and others

...Petitioners. -Versus-

Samin Yeasar Haque Patowary and others.

....Opposite parties. Mr. Md. Tahid Uddin Shepon with

Ms. Bethe Debnath, Advocates

…For the petitioners Mr. Md. Nasir Sikder, Advocate

…For the opposite parties

Heard on: 28.10.24, 03.11.2024 and 11.11.24. Judgment on: 12.11.2024.

Present:

Mr. Justice Md. Badruzzaman;

This Rule was issued calling upon the opposite parties to show cause as to why judgment and order dated 13.11.2022 passed by learned District Judge, Dhaka in Civil Miscellaneous Appeal No. 237 of 2022 dismissing the appeal summarily and thereby affirming judgment and order dated 20.06.2022 passed by learned Joint District Judge, 4th Court, Dhaka in Miscellaneous Case No. 13 of 2015 allowing the case filed under Order IX rule 13 of the Code of Civil Procedure should not be set aside.

During issuance of Rule further proceedings of Title Suit No. 218 of 2004 was stayed for a period of 06 (six) months which was subsequently, extended time to time.

Facts, relevant, for the purpose of disposal of this Rule, are that opposite party Nos. 1-3 filed Miscellaneous Case No. 13 of 2015 against the petitioners under Order IX rule 13 of the Code of Civil Procedure praying for setting aside ex parte judgment and decree dated 01.12.2014 (decree signed on 08.01.2015) passed in Title Suit No. 218 of 2004 contending, inter alia, that they were defendants in Title Suit No. 218 of 2004 and filed written statements to contest the suit but their learned engaged Advocate did not contract with them and avoiding to keep relationship with them. Accordingly, they engaged Mr. A.B.M Arif Ullah as their Advocate who collected information from the Court on 22.04.2015 and came to learn that Title Suit No. 218 of 2004 was decreed ex parte vide judgment and decree dated 01.12.2014. The suit was decreed ex parte due to negligence on the part of the learned engaged Advocate for the defendants and as such, the ex parte decree should be set aside and the suit be restored. The plaintiff opposite party Nos. 2, 5-12 filed written objection to contest the case contending, inter alia, that the predecessor of the defendants collusively got ex parte judgment and decree on 05.11.1998 in Title Suit No. 227 of 1992 which was challenged by the plaintiffs in Title Suit No. 218 of 2004 praying for a decree of declaration that the ex parte judgment and decree was collusive, ineffective and not binding upon the plaintiffs. The predecessor of the defendants entered appearance in the suit on 30.01.2005 and filed an application for rejection of the plaint under Order VII rule 11(d) of the Code of Civil Procedure which was rejected by order dated 12.03.2005 against which he filed Civil Revision No. 128 of 2005 before the learned District Judge and which upon transfer was heard by learned Additional District Judge, 1st Court, Dhaka who, upon hearing the parties, dismissed the revision by judgment dated 05.06.2006. Thereafter, the substituted heirs of the original defendant challenged said judgment and order before the High Court

To prove the miscellaneous case the defendants adduced one oral witness and the plaintiff adduced one oral witness and the trial Court upon considering the evidence and materials on record, allowed the miscellaneous case by judgment and order dated 20.06.2022 and set aside ex parte judgment and decree dated 01.12.2014. Being aggrieved by said judgment and order of the trial Court, the plaintiffs preferred Civil Miscellaneous Appeal No. 237 of 2022 before the learned District Judge, Dhaka who, upon hearing, dismissed the appeal summarily by judgment and order dated 13.11.2022. Challenging the legality of said judgment and order dated 13.11.2022, the