IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 1148 OF 2011

IN THE MATTER OF:

An application under section 115(1) of the Code of Civil Procedure. (Against Order)

-And-

IN THE MATTER OF:

Emdadul and others

--- Plaintiff-Appellant-Petitioners. -Versus-

Md. Bellal Khalipha and others

--- Defendant-Opposite Parties. No one appears

--- For the Plaintiff-Appellant-Petitioners. Mr. A. S. M. Khalequzzaman, Advocate

---For the Defendant-O. P. Nos. 1 and 2.

Heard on: 09.07.2023 and 13.07.2023. Judgment on: 13.07.2023.

At the instance of the present plaintiff-appellant- petitioners, Emdadul and others, this Rule was issued upon a revisional application filed under section 115(1) of the Code of Civil Procedure calling upon the opposite party Nos. 1 and 2 to show cause as to why the impugned Order dated 17.01.2011 passed by the learned Additional District Judge, Madaripur in Restoration Case No. 03 of 2010 allowing the same and setting aside the exparte judgment and decree dated 13.05.2010 passed

by the learned Additional District Judge, Madaripur in the Title Appeal No. 33 of 2009 allowing the appeal and reversing the judgment and decree dated 30.04.2002 passed by the learned Joint District Judge and Senior Assistant Judge (In-Charge), Sadar, Madaripur in the Title Suit No. 101 of 2002 should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the present petitioners as the plaintiffs filed the Title Suit No. 101 of 2002 for declaration of title and also a declaration that the settlement of the suit land obtained by the defendant No. 1 through the Settlement Case No. XII-M-11/99-2000/XII-MC- 279/2000 which was illegal, collusive and fraudulent. The plaint further contains that the father of the plaintiff-petitioners purchased the suit land on auction on 11.08.1979 and the land was mutated to the father of the plaintiffs and on the basis of that the plaintiffs paid rent of the suit land and got the rent receipt. Subsequently, the suit land was recorded in the names of the plaintiffs in BRS Khatian. The suit property is not a khas land. The defendant No. 1 threatened to the plaintiffs on 10.08.2002 not to enter into the suit land by showing the above-mentioned

settlement from the government which had been obtained by practicing fraud.

Defendant No. 1 contested the suit by filing a written statement contending, inter alia, that the plaintiffs’ case is false and subcontracted.

After hearing the parties the learned Joint District Judge and Senior Assistant Judge (In-Charge), Sadar, Madaripur dismissed the suit by the judgment and decree dated 30.04.2009.

Being aggrieved the present petitioners as the appellants preferred the Title Appeal No. 33 of 2009 in the court of the learned District Judge, Madaripur who transferred the matter to the learned Additional District Judge, Madaripur for hearing and disposal and immediately after receiving the file of the Title Appeal No. 33 of 2009 from the learned District Judge, Madaripur who took the matter for hearing on 13.05.2010. The present respondents appeared in the appeal and filed an application for adjournment. The said Additional District Judge, Madaripur took the appeal for hearing and the present petitioners as the respondents made their submissions. Therefore, the learned appellate court below only heard the respondents without considering the adjournment application filed by the defendant- opposite parties, the learned appellate court below-passed the Order No. 19 dated 17.01.2011allowing the said application by setting aside the exparte judgment and decree dated 13.05.20010.

Being aggrieved the present defendant-opposite party Nos. 1 and 2 filed an application under Order 41 (XLI) rule 21A of the Code of Civil Procedure for rehearing the Title Appeal No. 33 of 2010 afresh by restori