IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(Civil Appellate Jurisdiction)

First Miscellaneous Appeal No. 138 of 2021

with

(Civil Rule No. 179 (FM) of 2020)

In the matter of:

Alhaj Md. Moshaddek Ali and another

… Appellants-petitioners

-Versus-

Mrs. Habiba Sultana Zaidi and others

…Respondents-opposite parties Mr. A.S.M. Khalequzzaman , Advocate

…For the appellants-petitioners Mr. Mohammad Abdullah Al-Masud with

Mr. Mohammad Serajul Haque with

Mr. Khaja Tanvir Ahmed, Advocate

....For the respondent-opposite party no. 1

Heard and Judgment on .04.11.2024

Present:

Mr. Justice Md. Mozibur Rahman Miah

And

Mr. Justice Md. Bashir Ullah

Md. Mozibur Rahman Miah, J.

Since the point of law and facts so figured in the appeal as well as rule are intertwined they have been heard together and are being disposed of by this common judgment.

At the instance of the defendant nos. 3 and 4 of Title Suit No. 377 of 2006 and those of the petitioners in Miscellaneous Case No. 19 of 2014 filed under Order 9 Rule 13 of the Code of Civil Procedure, this appeal has been preferred against the judgment and order dated 22.10.2019 passed by the learned Joint District Judge, 1st Court, Dhaka

dismissing the case finding the petitioners of the case absent fixed for submitting report by the Advocate commissioner.

In a nutshell, the case of the petitioners in short is that the present respondent no. 1 as plaintiff filed the aforesaid Title Suit for declaration of title in the suit land and further declaration to the effect that the deed of heba dated 25.02.1975 executed in favour of the defendant no. 1 showing the plaintiff as donor of the said deed and kept with the defendant no. 2 is inoperative, collusive and not binding upon the said plaintiff together with other two prayers. In the said suit, the defendant no. 2 Agrani Bank here in the respondent no. 3 entered appearance and contested the suit and ultimately the learned joint District judge 1st court, Dhaka by his judgment and decree dated 19.08.2013 decreed the suit against the defendant no. 2 and exparte against other defendants that is, present appellants-petitioners who were defendant nos. 3-4 in the suit.

Feeling aggrieved by and dissatisfied with the said judgment and decree the defendant no. 3 and 4 as petitioners then filed a Miscellaneous Case under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the said judgment and decree passed exparte. In course of the said Miscellaneous Case, the petitioners on 19.06.2016 filed an application under Order 26 Rule 1 read with section 151 of the Code of Civil Procedure for taking deposition of the petitioner’s witness on commission and the learned judge vide order being no. 91 dated 16.02.2017 allowed the prayer for taking evidence on commission fixing 08.03.2017 for depositing commission’s fee. However, on subsequent occasions the matter was fixed for submitting commission report by the

Advocate commissioner but ultimately vide impugned judgment and order dated 22.10.2019, the learned judge dismissed the Miscellaneous case holding that, in spite of going to the house of the petitioner’s witness (shortly PW) to take evidence none opened the door of the house of the PW while the commissioner visited there resulting in failed to perform his commission work and filed report to that effect and the learned judge assigning the said reason then vide impugned order dismissed the Miscellaneous Case.

It is at that stage the defendant nos. 3 and 4 of Title Suit No. 377 of 2006 vis-a-vis the petitioners in Miscellaneous Case No. 19 of 2014 as appellants then preferred the instant appeal. After preferring the appeal, the self-same appellants as petitioners filed an application for stay as well as injunction and this court vide order dated 12.03.2020 issued rule and stayed operation of the exparte judgment and decree dated 19.08.2013 passed in Title Suit No. 377 of