Present:

Mr. Justice Md. Salim

CIVIL REVISION NO.3831 OF 2006

Abdus Sobhan Gharami

.............. Plaintiff-Petitioner.

-VERSUS-

Government of the Peoples Republic of Bangladesh, represented by the Deputy Commissioner, Patuakhali and others.

................. Defendant-Opposite Parties.

Ms. Chowdhury Nasima, Advocate

------- For both the Petitioner. Mr. Waliul Islam Oli, D.A.G. with

Mr. Mohammed Shaif Uddin Raton, A.A.G Mr. Md. Nazrul Islam Choton, A.A.G.

Mr. Md. Nasimul Hasan, A.A.G.

------ For the Opposite Parties.

Heard on 31.10.2024 Judgment on 07.11.2024

By this rule, the opposite parties were called upon to show cause as to why the impugned judgment and order dated 30.03.2006 passed by the District Judge, Patuakhali in Miscellaneous Appeal No.46 of 2005 dismissed the appeal and affirmed the judgment and order dated 31.10.2005 passed by the Joint District Judge, 2nd Court, Patuakhali in Miscellaneous Case No.16 of 2004 rejecting the case should not be set aside.

The petitioner, as plaintiff, instituted Title Suit No.35 of 1995 before the Senior Assistant Judge, Patuakhali, for a permanent injunction against the defendants. The suit was transferred to the Joint District Judge, 2nd Court, Patuakhali, and renumbered as Title Suit No.10 of 2002. Subsequently, the suit was fixed for a preemptory hearing on 11.10.2004, and on that date, the suit was dismissed for default for non- appearance of the plaintiff petitioner.

After that, the plaintiff petitioner on 09.11.2004 filed Miscellaneous Case No.16 of 2004 under Order IX, Rule 9, read with Section 151 of the Code of Civil Procedure for restoration of Title Suit No.10 of 2002 on setting aside the dismissal order for default.

The defendant-opposite party nos.1-3 contested the case by filing a written statement denying all the material allegations made in the application for restoration.

The petitioner side examined one witness to prove his claim; on the other hand, the opposite party examined none. Subsequently, the learned 2nd Joint District Judge, Patuakhali, by the judgment and order dated 31.10.2005, rejected the Miscellaneous Case.

Being aggrieved by, the plaintiff, as appellant, has preferred Miscellaneous Appeal No.46 of 2005 before the District Judge, Patuakhali. Eventually, the learned District Judge, Patuakhali, dismissed the appeal with a cost of Tk.500/- by the judgment and order dated 30.03.2006, affirming those passed by the trial Court.

Being aggrieved by, the plaintiff-petitioner filed the present Civil Revision before this court and obtained the instant rule, with an order of status quo extended from time to time.

I have considered the submission of the learned advocate for both parties perused the impugned judgment and other materials on record. Before I advert to the contentions raised from the side of the petitioner, it will be appropriate to quote the relevant provision of Order IX Rule 9 of the Code of Civil Procedure, which runs as follows:

“9 (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.”

It reveals that if a suit was dismissed for non-appearance of the plaintiff at the time of the call for hearing the suit, the plaintiff applied to set aside the dismissal order of the suit then if he can satisfy the court that there was a sufficient cause for non-appearanc