Present:-

Mr. Justice Mahmudul Hoque

Civil Rule No. 235 (Con) of 2020

Md. Bazlar Rahman and others

... Petitioners -Versus-

Md. Nurul Islam and others

...Opposite-Parties

Mr. Bhabesh Chandra Mustafi, Advocate

...For the Petitioners Mr. Md. Sagir Anwar with

Mr. Abdul Alim (Juwel), Advocates

...For the Opposite-Party No.1

Judgment on 12th December, 2024.

On an application under Section 5 of the Limitation Act, this Rule was issued on 12.03.2020 calling upon the opposite- party Nos. 1, 27-31 to show cause as to why the delay of 286 days in filing the Civil Revision against the impugned judgment and decree dated 29.11.2018 passed by the learned Joint District Judge, 2nd Court, Gaibandha in Other Appeal No. 178 of 2015 disallowing the appeal and thereby affirming the judgment and decree dated 18.10.2015 passed by the learned Senior Assistant Judge, Sadar, Gaibandha in Other Suit No. 117 of 2009 dismissing the suit should not be condoned and/or pass such other or further order or orders passed as to this Court may seem fit and proper.

Shorn of unnecessary details, fact of the case lies in a very narrow compus. This petitioner filed this application under Section 115(1) of the Code of Civil Procedure at a delay of 286 days shown cause of delay in filing this revisional application stating that the petitioner No. 1, Md. Bazlar Rahman is a tadbirkar of the case, petitioner No. 2 is a woman, petitioner No. 3 is an innocent person. The petitioner No. 1 is an old man has been suffering from various diseases including asthma, consequently, he could not obtain certified copy of the judgment and decree in time. He applied for certified copy on 04.01.2019, the same was delivery on 26.08.2019 after 8 months, but due to his illness he could not collect the certified copy and collected the same on 09.01.2020 and then came to Dhaka on 15.01.2020 and handed over the documents to the learned Advocate who took 5 days time for preparing application. In this way delay of 286 days. The causes for delay as stated in Paragraph No. 2 of the application is merely a lame excuse. Application for certified copy of the judgment and collection of the same is usually done by the Advocate clerk on behalf of client.

This revisional application has been filed against the judgment of affirmance dismissing the suit as well as disallowing the appeal by the appellate court. Both the courts below found that in Other Suit No. 87 of 1988 filed by the defendant No. 1 earlier against the present petitioners was decreed in appeal declaring title of the present defendant-opposite-parties in the suit property by the appellate court in Other Appeal No. 144 of 1991. The defendants in that suit and plaintiffs in present suit did not move before the higher court, consequently, title of the present opposite- parties has been established. Subsequently, the opposite-parties, as plaintiff, filed Other Suit No. 04 of 2001 praying for partition of the suit property, the suit was decreed ex parte on 237.11.2001. Challenging the decree passed in Other Suit No. 04 of 2001 present petitioners, as plaintiff, filed Other Suit No. 117 of 2009 in the court of Senior Assistant Judge, Sadar, Gaibandha.

The trial court after hearing held that the plaintiffs in suit have no title in the property and their title have been decided in Other Suit No. 87 of 1988, as such, by the ex parte decree under challenge there is no reason for affecting the right title of the present plaintiffs. This instant suit has been filed by the present petitioners only on the ground of not making them parties in Other Suit No. 04 of 2001 which was for a decree of partition, a person not a co-sharer in the suit property is not a necessary party. Accordingly, because of judgment and decree passed in Other Suit No. 87 of 1988 in favour of the opposite-parties declaring their title, present petitioners are no more co-sharer in the suit property. Bot