ABDUL JABBAR MONDAL Vs. BABAR ALI MALITA

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 19.03.2005 passed by a Single Bench of the High Court Division in S.A. No.302 of 1979 rejecting the application for restoration of S.A. No. 302 of 1979 which was dismissed for default for non-compliance of the court's order dated 19.07.2001.

(2.) Short facts are that the matter came up before the lawazima Bench of the High Court Division on 20.02.2001 when none appeared and the learned Single Judge allowed two weeks time to comply with the office report dated 08.06.2000. The appellant did not take any step to put in D.R. costs of Tk. 103/- and the indemnity bond for appointment of an advocate for the minor respondent Nos. 1(a)-1(c). The matter again appeared before the Registrar of the Court on 09.04.2001 and the Registrar asked the office to place the matter before the Court. The matter was accordingly placed before the Court. The matter was accordingly place before the lawazim Bench and an order was passed on 08.05.2001 allowing 4 weeks time as a last chance to put in the requisites. The requisite was not put in and by office note dated 24.06.2001 the Registrar directed to place the matter again before the Single Bench and the learned Single Bench passed the order in lawazima on 19.07.2001 allowing 3 weeks time for compliance with a default order that for non compliance, the appeal shall stand dismissed. The order passed by the lawazima Bench on 19.07.2001 was also not complied with and the office recorded a note on 02.09.2001 that the appeal stood dismissed for non-compliance of the courts order dated 19.07.2001. Thereafter the learned advocate for the appellant Mr. N.K. Saha filed an application for restoration of the 2nd Appeal and by order dated 06.12.2004 the Hon'ble Chief Justice referred the matter to the Bench presided over by B.K. Das. J. The application for restoration appeared in the list on 08.12.2004 when none appeared and the matter was adjourned for 1(one) week. The restoration appeared in the list on 08.12.2004 when none appeared and the matter was adjourned for 1(one) week. The restoration application then appeared in the list on 12.01.2005 but none appeared and the application was ordered to stand over till one week after the vacation. The matter accordingly appeared on 07.02.2005 after vacation when none appeared for the appellant petitioner and the learned Single Bench again allowed one week's time as a last chance for ends of justice and the matter accordingly appeared in the list on 19.02.2005 but none appeared for the appellant petitioner. Thereafter, the learned Single Bench directed to put the matter to appear in the list with the name of the learned Advocate. The matter then appeared in the list on 22.02.2005 with the name of the learned Advocate for the appellant but none appeared and accordingly the Bench rejected the application for restoration for default. Subsequently the learned Advocate Mr. Saha filed an application for restoration of the aforesaid restoration application and by order dated 02.03.2005 the learned Single Bench allowed the prayer and restored the restoration application having found that the learned Advocate Mr. N.K. Saha had been sick and was admitted to BIRDEM Hospital and was under treatment for about one month and could not therefore appear when the application was rejected for default. Subsequently the application for restoration came up for disposal before the learned Single Judge. By the impugned order the learned Single Bench dismissed the application holding that it was stated the due to inadvertence of the clerk of the filing advocate Mr. N.K. Saha the requisite could not be put in but from record it transpired that Mr. Latifur Rahman was the filing Advocate for the appellant and not Mr. N.K. Saha. The learned Single Judge further opined that there is no reason as to why the learned Advocate did not appear before the lawazima Bench on 20.02.2001,08.05.2001 and 19.07.2001 when the matter fixed for putting in requisites and the explanation offered for the inordinate delay in complying with the office report dated 24.06.2001 was not at all satisfactory.

(3.) We have heard Mr. N.K. Saha, the learned Counsel for the petitioner and perused the judgment of the High Court Division and other connected papers.