UPENDRA CHANDRA RISHI Vs. SUFIA BEGUM

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and order dated 13.2.85 passed by a Division Bench of the High Court Division, Dhaka in Civil Order No. 98 of 1985 summarily rejecting the appellant's application under section 115 of the Code of Civil Procedure and affirming the concurrent judgments and orders of the Courts below dismissing the appellants' Miscellaneous Case No. 151 of 1981 under Order 9 rule 13 of the Code of Civil Procedure.

(2.) Plaintiff-respondent Nos. 1-4 instituted Title Suit No. 589 of 1980 in the Court of Subordinate Judge, Dhaka for declaration of title to the suit land. The suit was decreed ex parte on 1.12.80 The defendant-appellants filed Miscellaneous Case No. 151 of 1981 on 5.8.81 under Order 9 rule 13 of the Code of Civil Procedure for setting aside the ex parte decree on the averments, inter alia, that the decree was obtained behind the back of the appellants without service of any summons upon them. The appellants and the respondents were parties in another suit, namely, Title Suit No. 637 of 1976 of the 1st Court of Munsif, Dhaka. On 20.7.81 when the appellants had been in the said Court in connection with the hearing of the said suit, they came to learn about the ex parte disposal of Title Suit No. 589 of 1980. On search the appellants came to know definitely on 28.7.81 about the impugned decree.

(3.) The respondents contested the case by filing a written objection contending inter alia that the summons and notices of the suit were duly served upon the appellants. They were aware of the filing of the suit but they did not appear to contest the suit intentionally.