Present:

Mr. Justice Md. Salim

FIRST MISCELLANEOUS APPEAL NO. 14 OF 2001 Md. Abdul Quddus Sarker and others

.......... Plaintiff-Appellants. -VERSUS-

Most. Rasna Begum and others

......... Defendant-Respondents. Mr. Bhabesh Chandra Mustafi, with

Ms. Shamsun Nahar, Advocate

............ For the Appellants. Mr. Abdur Rouf Akanda, Advocate

......... For the Respondents.

Judgment on 28.11.2024.

This miscellaneous appeal at the instance of the plaintiffs as appellants has been brought, challenging the impugned judgment and order dated 09.08.2000 passed by the learned District Judge, Gaibandha in Miscellaneous Appeal No. 27 of 1997 (under Order 41 Rule 19 of the Code of Civil Procedure) arising out of an order dated 20.02.1997 passed by the learned Assistant Judge, Polashbari in Miscellaneous Case No. 44 of 1993 (Under Order 9 Rule 9 of

the Code of Civil Procedure) brought against an order of dismissed of Title Suit No. 79 of 1988 for default.

Facts, in a nutshell, relevant for the purpose of disposal of this appeal, is that on 28.09.1988, the appellants as plaintiffs filed Other Suit No. 79 of 1988 before the Munsiff now Senior Assistant Judge, Palashbari, Gaibandha for a declaration that deed numbers 6697 and 6698 dated 04.05.1976, registered and executed by one Din Moe in favor of the defendant-respondents 1 and 2 at Palashbari Sub- Register Office, Gaibandha, was a fraud, collusive and ineffective. Subsequently, on 18.08.1993, when the matter was called on for a peremptory hearing, the plaintiffs did not take any steps and were found absent on repeated calls. The suit was brought for hearing and dismissed the suit for default by the learned Senior Assistant Judge, Palashbari, Gaibandha.

Being aggrieved, the plaintiff-appellants filed Miscellaneous Case no. 44 of 1993 under Order 9 Rule 9 read with section 151 of the Code of Civil Procedure Senior Assistant Judge Palashbari, Gaibandha, for restoration of the

suit, which was rejected by the judgment and order dated 20.02.1997 on contest.

Being aggrieved, the plaintiffs-appellants preferred Miscellaneous Appeal No. 27 of 1997 before District Judge Gaibanda. Subsequently, on 11.06.1998, when the matter was called on for hearing, the plaintiff-appellant's engaged lawyer was found absent on repeated calls, so the appeal was brought for hearing and dismissed for default.

Being aggrieved, the plaintiff-appellant preferred Miscellaneous Appeal before the District Judge, Gaibanda, under Order 41 Rule 19 read with section 151 of the Code of Civil Procedure, for setting aside the disposal order of the appeal. Eventually, the learned District Judge, Gaibanda, dismissed the Miscellaneous Appeal by the judgment and order on 09.08.2000 with a cost of Tk. 1,000/-.

Being aggrieved, the plaintiffs-appellants preferred the instant Miscellaneous Appeal before this court, and the appeal was admitted on 06.02.2001.

Ms. Shamsun Nahar, the learned Advocate appearing on behalf of the plaintiffs-appellants, submits that the learned District Judge erred in law in failing to take into consideration the fact that the appeal was dismissed for default, not for the fault of the appellants but for the fault of their engagement learned Advocate. As such, the appeal may be allowed at the ends of justice.

On the contrary, Mr. Md. Abdur Rouf Akanda, the learned Advocate appearing on behalf of the defendant- respondents by filing a counter affidavit, opposes the contention so made by the learned Advocate for the appellants and submits that the plaintiffs-appellant filed the instant suit in the year of 1988 for setting aside the registration deeds in the year of 1967 only to causing harassment and adopted a technique of default of the suit again and again.

I have anxiously considered the submission of the learned Advocate