IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Zafar Ahmed

Civil Revision No. 103 of 2022 Md. Ibrahim Molla and others

...Defendant-respondent-petitioners

-Versus-

Md. Ershad Ali and others

…Plaintiff-appellant-opposite Parties

Mr. Md. Shahadat Tanveer Amin, Advocate

...For the petitioners

Mr. Subrata Kumar Kundu, Advocate

.........For the opposite parties

Heard on: 11.11.2024 Judgment on: 12.11.2024

In the instant revisional application filed under Section 115(1) of the Code of Civil Procedure (CPC) at the instance of the defendant- petitioners, this Court on 23.01.2022 issued a Rule calling upon the plaintiff-opposite parties to show cause as to why the judgment and order dated 16.09.2021 passed by the learned Additional District Judge, Natore in Miscellaneous Appeal No. 88 of 2019 allowing the same and restoring the Other Class Suit No. 136 of 2008 to its original file and number upon reversing the judgment and order dated 07.11.2019 passed by the learned Assistant Judge, Gurudaspur, Natore in Miscellaneous Case No. 09 of 2015 should not be set aside.

Plaintiffs-opposite party Nos. 1-4 have entered appearance in

the Rule.

The present opposite parties as plaintiff filed suit for declaration and permanent injunction being Other Class Suit No. 136 of 2008 in the Court of Assistant Judge, Gurudashpur, Natore impleading the present petitioners as defendants. The defendants filed written statement in the suit. 04.02.2015 was fixed for pre-emptory hearing (P.H.). The plaintiffs filed an application for adjournment of the hearing on the ground that their engaged lawyer was absent in the Court due to hartal. The defendants filed hajira. When the suit was called for hearing none appeared for the plaintiffs. The trial Court rejected the plaintiffs’ application for adjournment and dismissed the suit under Order IX rule 8 of the CPC on 04.02.2015. Thereafter, on 28.05.2015 the plaintiffs filed an application for restoration of the suit under Order IX rule 9 along with an application for condonation of delay of 113 days in filing the said application for restoration. The application for restoration gave rise to Miscellaneous Case No. 9 of 2015. The defendants contested the miscellaneous case by filing a written objection. Both the parties examined witnesses in support of their respective cases. The trial Court dismissed the miscellaneous case on 07.11.2019. The plaintiffs filed Miscellaneous Appeal No. 88 of 2019 which was heard and disposed of by the learned Additional District Judge, Natore, who, vide judgment and order dated 16.09.2021 allowed the miscellaneous appeal and restored the suit to its original file and number. Challenging the same, the defendants have preferred the instant revision and obtained the Rule.

While dismissing the suit for non-appearance of the plaintiff under Order IX rule 8 of the CPC the trial Court observed:

“On perusal of the record, it is also found that this miscellaneous petition seeking for setting aside the

dismissal order is barred by limitation consuming 113

days. The plaintiff-petitioners had not been able to satisfy

the court why such suit is barred by limitation in respect

of 113 days. It is the settled principle of law, to condone

delay, every day must be explained by sufficient reasons

on which ground it is to be delayed. The PTW-1 merely

deposed in examination-in-chief that clM¡Øa öe¡e£ e¡ L­lJ

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Nje Ll¡l pju c¤OÑVe¡u ¢ef¢aa q­m Bj¡l ¢Q¢Lvp¡l SeÉ ®hX ®l­ØV b¡¢Lz

While he was crossed he said that, 01/03/15Cw a¡¢l­M B¢j

c¤OÑVe¡u f¢s; H pwH²¡¿¹ ®L¡e X¡š²¡l£ p¡¢VÑ¢g­LV B¢j Bc¡m­a Sj¡ ®cu¢ez

On perusal of the plaint in original suit No. 136 of 2008, it is found that there were more three plaintiffs except the petitioner No. 01, Md. Ershad Ali. They could take necessary step in lieu of plaintiff No. 01 as he fell in