District: Cumilla

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present

Mr. Justice Sardar Md. Rashed Jahangir

Civil Revision No. 1159 of 2023

In the matter of :

Afia Khatun and others

… Petitioners

-Versus-

Amena Begum and others

…Opposite parties

Mr. Muhammad Rafiul Islam, Advocate

…For the petitioners

Mr. Prahlad Debnath, Advocate

…For the opposite party No. 1

Heard on: 14.11.2024 and 27.11.2024 Judgment on: 04.12.2024

Rule was issued on an application under section 115(1) of the Code of Civil Procedure calling upon the opposite parties to show cause as to why the judgment and order dated 30.01.2023 passed by the Additional District Judge, Forth Court, Cumilla in Civil Appeal No.130 of 2020 arising out of Title Suit No.99 of 2017, allowing the application to examine additional witnesses,

should not be set aside and/or such other or further order or orders as to this Court may seem fit and proper.

The present opposite party No.1 as plaintiff filed Title Suit No.99 of 2017 before the Assistant Judge, Borura, Cumilla for declaration of title in respect of the scheduled property to the plaint. On conclusion of hearing the suit was dismissed by judgment and decree dated 31.10.2019 on contest against the defendant Nos.1-3, 5, 8-10 holding that the plaintiff failed to prove her title, interest and possession in the suit land.

Having been aggrieved by the judgment and decree dated 31.10.2019 passed by the Assistant Judge, Borura, Cumilla in Title Suit No.99 of 2017, the plaintiff preferred Title Appeal No.130 of 2020 before the District Judge, Cumilla. The said appeal was transferred to the Court of Additional District Judge, Forth Court, Cumilla for hearing. On 30.01.2023, the plaintiff- appellant filed as well as 2(two) applications, one is under Order VI, rule 17 of the Code of Civil Procedure for amendment of plaint and another is for additional evidence to examine 2(two)

additional witnesses on behalf of the plaintiff-appellant. And 3rd party also filed an application under Order I, rule 10 of the Code of Civil Procedure to be added as respondents.

Learned Additional District Judge on the same day i.e. on 30.01.2023 took the applications for hearing and by her order allowed all the applications.

On being aggrieved by and dissatisfied with the order dated 30.01.2023, so far it relates to allowing the application to examine additional witnesses, the defendant-respondent preferred this civil revisional application and obtained the Rule.

Learned Advocate Mr. Muhammad Rafiul Islam appearing on behalf of the petitioner submits that the Court of appeal below committed an error of law in allowing the application for examining additional witnesses on behalf of the plaintiff- appellant failing to consider that the application is nothing but to provide an opportunity to fill up her lacuna. He next submits that Order XLI, rule 27 read with the rule 29 of the Code of Civil Procedure provides that learned Judge of appellate Court concerned in allowing the application for additional evidence is to specify the reasons thereof and also is to specify the points to which the evidence is to be confined, limiting the scope of producing/advancing the evidence, but in the present case learned Judge of the appellate Court below failed to discharge the said mandatory obligation in allowing the application for examining additional witnesses and thereby committed error of law in an error in the decision occasioning failure of justice.

In support of the submission learned Advocate cited the case of Daulat Chandra Gope alias Mrityunjoy Gope and others Vs. Mosammat Monowara Begum and another reported in 16 BLD(AD) 251, wherein it was categorically held that in allowing an application under Order XLI, rule 27 of the Code of Civil Procedure the order of appellate Court below is must be a speaking one assigning