ABDUR RASHID (MD) Vs. BAINCHITALA JUNIOR HIGH SCHOOL

JUDGEMENT

(1.) This petition for leave to appeal has been preferred against the judgment and order dated 2nd March, 1997 of the High Court Division in Civil Revision No. 1751 of 1995 discharging the Rule which was obtained the against the order No. 15 dated 22nd February, 1995 of the learned District Judge, Jhenaidha in Miscellaneous Appeal No. 54 of 1985 allowing an application under Order 1 rule 10 of the Code of Civil Procedure (CPC) and thereby adding one Khandaker Moulana Meshbahul Alam Azad Khandani as appellant in the miscellaneous appeal pending before the Court of District Judge.

(2.) Facts, in short, are that petitioner herein filed Title Suit No. 16 of 1981 (previously numbered as Title Suit No. 26 of 1979 of the Court of Subordinate Judge, Jessore) of the Court of Subordinate Judge, Jhenidha seeking declaration that he is the successor of the defendant Bainchitala Islamia Junior Madrasah and for a further declaration of title to the land described in the schedule appended to the plaint. The suit was decreed ex parte on 20th November, 1982, Defendant Nos. 6 and 7 (Badaruddin Mandal) of the aforementioned suit filed an application under Order IX rule 13 CPC for setting aside of the ex parte decree and thereupon Miscellaneous Case No. 76 of 1982 was registered. The said Miscellaneous case was ultimately dismissed on 23rd April 1985. As against the order of dismissal defendant No.7 preferred Miscellaneous Appeal No. 54 of 1985 before the Court of District Judge and therein one Khandaker Moulana Meshbahul Alam Azad Khandani filed an application under Order I rule 10 CPC claiming himself as Secretary of the Madrasah for being added as appellant in the miscellaneous appeal and the said application was allowed and as against that Revisional application was moved a Rule was obtained, Civil Revision No. 216/85 (Jessore)/ 3602/91 (Dhaka) and finally, the Rule was rule was made absolute on 2nd August, 1994. It may be mentioned during the pendency of the civil revision defendant No. 7 Badaruddin Mandal who was the appellant in Miscellaneous Appeal No. 54 of 1985 died on 22nd December, 1992. That on receipt of the record from the High Court Division the same was shown to the learned Advocate of the defendant-appellant on 8th January, 1995 and an application under Order I rule 10 read with section 151 of the CPC was filed on 22nd February, 1995 seeking addition of the heirs of Badaruddin Mandal as appellants in the Miscellaneous Appeal No. 54 of 1985 and the said application was allowed on 22nd February, 1995. As against the said order plaintiff respondent in the miscellaneous case moved the High Court Division in revisional jurisdiction and obtained the present Rule contending that as no estate has been left by Badaruddin to which the petitioners can be considered to have succeeded on his death and consequently, they do not come within the ambit of legal representative as contemplated by the provision of Rule 4 of Order XXII of the CPC.

(3.) It may be mentioned that defendant No. 7 Badaruddin in his application under Order IX rule 13 of the CPC stated that he was entrusted by the Madrasah to manage its property. It was also stated in the application under Order I rule 10 that Badaruddin was a bargader of the land in suit under the Madrasah and that after death of their father petitioners have taken bargader of the land in suit from the Madrasa.