Present:

Mr. Justice Sheikh Abdul Awal

and

Mr. Justice Md. Mansur Alam

First Appeal No. 405 of 2017 In the Matter of:

Memorandum of appeal from the original decree.

-and-

In the Matter of:

Alamgir and others.

.....Plaintiff-appellants.

-Versus-

Shalah Uddin and others

…...Defendant-respondents.

Mr. Md. Shamsul Haque Bhuiyan, Advocate

……. For the appellants. None appears.

.....For the respondents.

Heard on 22.10.2024, 18.11.2024 and Judgment on 25.11.2024.

Sheikh Abdul Awal, J:

This appeal at the instance of the plaintiff-appellants is directed against the judgment and decree dated 09.07.2017 (decree signed on 13.07.2017) passed by the learned Joint District Judge, Narsingdi in Civil Suit No. 89 of 2011 dismissing the suit exparte.

Material facts relevant for disposal of the Rule, briefly, are that the appellants as plaintiffs filed Civil Suit No. 89 of 2011 in

the Court of the learned Joint District Judge, Narsingdi impleading the defendants praying the following reliefs:

Defendants entered appearance in the suit and filed written statements denying all the material allegations made in the plaint contending, inter-alia, that the suit is not maintainable in its present form and manner. The suit is barred by section 42 of Specific Relief Act, the plaintiffs have/had no right, title and possession over the suit land, the plaint case is unspecified and motivated and as such, the suit is liable to be dismissed.

The learned Joint District Judge on the pleadings of the parties framed the following 5 issues for determination.

1. Whether the suit is maintainable in its present form and manner?
2. Whether the suit is barred by limitation?
3. Whether the suit is bad for defect of parties?
4. Whether the plaintiffs have right, title, interest and exclusive possession over the suit land?
5. Whether the plaintiffs are entitled to get a decree as prayed for?

The defendants after filing the written statement did not turn to contest the suit and thus, the suit was proceeded exparte, vide order dated 27.01.2015.

In this backdrop, the plaintiff side examined 4 witnesses to prove their respective case.

The learned trial Judge by his judgment dated 09.07.2017 dismissed the suit ex parte.

Being aggrieved by the aforesaid impugned judgment and decree dated 09.07.2017 passed by the learned Joint District Judge, Narsingdi the plaintiff-appellants preferred this First Appeal.

Mr. Md. Shamsul Haque Bhuiyan, the learned Advocate appearing for the plaintiff-petitioner in the course of argument at the very outset takes me through the impugned judgment, plaint of the suit, written statements, deposition of witnesses and other materials on record and then points out that in this case it is on record that the plaintiffs by adducing sufficient evidence both oral and documentary proved their title and possession in the suit land and also proved that RS record was wrongly prepared in the name of defendants although the trial court below without considering all these aspects of the case wrongly dismissed the suit by exparte judgment and decree dated 09.07.2017. He further submits in this case it is on record that the defendants entered appearance in the suit and filed written statements although they did not turn to contest the suit. However, at the end of the day the learned Advocate referring an application under Order 41, Rule 23 of the Code of Civil Procedure submits that since the suit was dismissed by ex parte judgment and decree, the same may be sent back on remand to the trial Court for fresh trial by giving an opportunity to the parties to adduce fresh evidence in support of their respective cases

No one appears for the defendant-respondents.

Having heard the learned Advocate for the appellants and having gone through the materials on record including the impugned judgment of the trial Court.

On a scrutiny of the record, it appears that in this case the plaintiffs filed the s