ABDUL HAI Vs. ATAR ISLAM

JUDGEMENT

(1.) This appeal by leave is directed against the judgment and order dated 15.02.1999 passed by a single Bench of the High Court Division in Civil Revision No. 3023 of 1994 making the Rule absolute and there by setting aside the judgment and order dated 16.08.1984 passed by the learned Addition district Judge, 4th Court, Comilla in Miscellaneous Appeal No. 85 of 1992 reversing the judgment and order dated 24.05.1992 passed by the learned Assistant Judge, Comilla Sadar, in Miscellaneous Case No. 35 of 1990.

(2.) Short fact are that the plaintiff-respondent field Title Suit No. 263 of 1986 for declaration of title and confirmation of possession and for permanent injunction on the assertions made in the plaint. The predecessor of the defendant petitioner filed written statement. The suit was fixed on 23.10.1989 for ex parte hearing. On that date the defendant did not appear and take any step. Accordingly the suit was decreed ex parte. The defendant filed Miscellaneous case No. 35 of 1990 under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree stating, inter alia, that he was an old man and was suffering from various ailments and he relied upon the clerk of his engaged Advocate for making tadbir in the Case. His further case was that he was not aware of the ex parte decree in question. The plaintiff opposite party filed written objection in the above mentioned miscellaneous case denying the contentions of the Defendant Petitioner. The learned Assistant Judge after hearing the parties dismissed the case holding that the defendant was not prevented by sufficient cause from appearing when the case was called on for hearing.

(3.) We have heard Mr. Md. Amir Hossain, learned Counsel for the appellants and Mr. Mahbubey Alam, the learned senior Counsel for the Respondent Nos. 1-9 and perused the connected papers.