ALFU MIAH Vs. GOVERNMENT OF BANGLADESH

JUDGEMENT

(1.) The appellants filed Title Suit No .355 of 1969 in the Court of Munsif, Dhaka against the Government and other respondents for permanent injunction in respect of CS Plot Nos. 11, 32 and 37 of SC Khatian No. 139 of Mouza Nandanbag, PS Keraniganj. The suit was decreed ex parte on January 9, 1970. On an application by the Government the ex parte decree was set aside and the suit was restored to its file and number on June 23, 1970. After about three years the Government filed written statement and, inter alia, took the plea that the suit was not maintainable in view of section 14A of the (Emergency) Requisition of Property Act, 1948. On February 9, 1984, fixed earlier for hearing, on the Government pleader's application the hearing was adjourned to February 29, 1984. On that date none appeared for the Government and suit was decreed ex parte. An application under Order IX, rule 13 of the Code of Civil Procedure was filed belatedly with an application for condonation of delay. After considering that the date for the hearing was fixed within the knowledge of the parties and the evidence of P.W. 1 that the date of hearing was within the knowledge of the defendants, the trial Court rejected the application for restoration. The prayer for condonation was also rejected as explanation for the delay was not found to be satisfactory. The appellate Court upheld that order. It held that die defendant did not explain each day's delay and the failure of the law clerk to inform the Government pleader about the next date of hearing was not sufficient ground for non-appearance.

(2.) Before the High Court Division the respondents cited Bangladesh Vs. Abdul Wadud 25 DLR (SC) 90, Bangladesh Vs. Israil Ali and others 1981 BLD (AD) 371, Bangladesh Vs. Jaheruddin 1986 BLD (AD) 180(182), Mst. Nurjahan Begum Vs. Giri Gopal Sarker 1979 BSCR (Vol. 3) 400 and Mst. Sanatannessa Bewa Vs. Baipatullah Sarker & ors. 1989 BLD (AD) 1.

(3.) A photocopy of the Gazette Notification dated November 17, 1955 produced before the High Court Division shows that CS Plot Nos. 32 and 37 had already been acquired, (not requisitioned as stated by the High Court Division), by the Government. After finding that the defendant had an arguable case under section 14A of the (Emergency) Requisition of Property Act, 1948 and the ex parte decree was not made in accordance with law, the High Court Division by the impugned order dated December 11, 1989 passed in Civil Revision No. 281 of 1985 set aside the ex parte decree.