ABUL KASHEM Vs. GOVERNMENT OF BANGLA­DESH

JUDGEMENT

(1.) This leave petition arises out of judgment and order of the High Court Division in Civil Revision 3617 of 1995 discharging the Rule.

(2.) The petitioners as the plaintiffs instituted Title Suit No. 333 of 1984 in the First Court of Munsif (now Assistant Judge); Sadar, Chittagong which was renumbered as Title Suit No. 72 of 1985 after being transferred to the second Court of learned Subordinate Judge, Chittagong. The petitioners filed the above suit against the respondent for declaration of title, confirmation of possession and for permanent injunction. The case of the petitioners was that the names of their predecessors were recorded in CS and RS Khatian but in the PS and BS Khatian the names of the respondents was recorded and the Government claimed the said property.

(3.) The aforesaid suit was decreed ex parte on 20-2-1986 and respondent filed Miscellaneous Case No. 28 of 1986 under Order IX rule 13 of the Code of Civil Procedure which was dismissed on contest on 19-6-1986 and against the aforesaid order dated 19-6-1986 the respondent filed Miscellaneous Appeal No. 107 of 1987. The said appeal was also dismissed for default on 30-7-1992. On 16-4-1984 Government filed Miscellaneous Case No. 2 of 1994 under Order XLI rule 19 CPC along with an application under section 5 of the Limitation Act praying for condoning the delay. The petitioners resisted the same by filing written objection. The learned Additional District Judge by judgment and order dated 27-7-1995 allowed the Miscellaneous Case by setting aside the order of the dismissal and restored the Miscellaneous Appeal No. 107 of 1987 to its file and number. Being aggrieved by the said judgment and order dated 27-7-1995 the respondent as petitioner moved the High Court Division. The point for consideration in the Rule by the High Court Division was whether there was any error in the impugned judgment in allowing the Miscellaneous Case or restoring the appeal. It appears that there was delay of 574 days in filing Miscellaneous Case No. 2 of 1994 before the learned Additional District Judge and the respondent filed an application under section 5 of the Limitation Act praying for condonation of delay explaining the reason for the delay. The High Court Division after detailed discussion of the reason for the delay in filing the Miscellaneous Case and the oral evidence was satisfied with the explanation.