SANAT KUMAR DHAR Vs. AMINUL HAQUE

JUDGEMENT

(1.) This petition seeking review has been filed against the judgment dated July 20, 2005 in Civil Petition for Leave to Appeal No. 1635 of 2003. The civil petition for leave to appeal was filed against the judgment of the High Court Division dated July 16, 2003 in Civil Revision No. 3197 of 1998 which was filed against the judgment and decree dated July 5, 1998 of the 3rd Court of Subordinate Judge (now Joint District Judge), Mymensingh in Other Class Appeal No. 128 of 1994 setting aside the judgment and decree dated March 23, 1994 of the Additional Court of Senior Assistant Judge, Mymensingh in Other Class Suit No.70 of 1992 decreeing the same. The High Court Division by the judgment as mentioned hereinbefore upon making the Rule absolute reversed the judgment of the appellate Court.

(2.) The suit was filed seeking declaration of title recovery of khas possession.

(3.) The trial Court decreed the suit as mentioned hereinbefore and on appeal the judgment of the trial Court was set aside and the suit was sent back on remand for fresh trial. As against the order of the appellate Court plaintiff obtained Rule in the aforementioned civil revision. The High Court Division made the Rule absolute and thereby restored the judgment of the trial Court. This Court while dismissing the petition for leave to appeal observed that the trial Court upon due consideration of the materials on record disposed of the issues framed by it or in other words the trial Court disposed of the suit upon adjudicating the issues involved therein but the appellate Court without discussing the evidence and without taking into consideration the facts which ought to have been taken into consideration while disposing of the appeal interfered with the judgment and decree of the trial Court and thereupon sent back the suit to the trial Court for fresh trial. While dismissing the. petition for leave to appeal we observed that appellate Court without arriving at the finding that the trial Court disposed of the suit on preliminary point or that without adjudicating the issue involved in the suit set aside the judgment of the trial Court and thereupon sent back the suit to the trial Court for fresh trial. It was noticed by us that the High Court Division having satisfied that there were sufficient materials to dispose of the case on merit and that to avoid prolongation of the litigation went for consideration of the materials on record and thereupon made the Rule absolute upon setting aside the judgment of the appellate Court. We are of the view in the background of the materials on record High Court Division was not in error in disposing of the case on merit instead of sending the suit back either to the appellate Court or to the trial Court. In our opinion the High Court Division did the right thing in disposing of the case on merit since an order or remand would unnecessarily delayed disposal of the suit.