MVI. MD. SHAFIQUR RAHMAN Vs. AMBIA KHATOON

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order of the High Court Division dated 10.1.2004 passed in Civil Revision No.1436 of 2002 discharging the Rule obtained against the order dated 30.1.2002 passed by the learned Joint District Judge, 2nd Court, Noakhali in Miscellaneous Case No. 39 of 2001 restoring Miscellaneous Case No. 5 of 1998 (Pre-emption) upon an application filed under Order 9 Rule 9 CPC.

(2.) Brief facts are that late Munshi Aminullah, the predecessor of the respondent Nos. 1-7, filed the above Miscellaneous Case No. 5 of 1998 (Pre-emption) under section 96 of State Acquisition and Tenancy Act 1950 praying for pre-emption of the case land on the averments that he having purchased .19 acres of land became co-sharer by purchase; the residence of the preemptees is situated far off from the case land; the pre-emptor is a cultivator having only 10 bighas of land; The Respondent No.8, A co-sharer by purchase, sold .71 acres of land to the pre-emptee petitioners on 12.1.97 and he only on 16.2.1998 came to know about the same and he then on 24.2.98 obtained the certified copy of the kabala dated 12.1.97 and filed the miscellaneous case on 4.3.1998. The pre-emptee petitioners by filing written objection opposed the above miscellaneous case. The miscellaneous case was then fixed on 2.8.2001 for peremptory hearing and on that date the pre-emptor respondent prayed for adjournment but the learned Subordinate Judge (now Joint District Judge) rejecting the said prayer directed the parties to get ready for hearing and then the above case was taken up for hearing and the learned Advocate of the pre-emptor-respondent having not been found on call, the learned Subordinate Judge (now Joint District Judge) dismissed the Miscellaneous Case No.05 of 1998 for default. Then on 23.8.2001 the pre-emptor filed Miscellaneous Case No. 39 of 2001 praying for restoration of the above Miscellaneous Case No.05 of 1998 and the learned Subordinate Judge (now Joint District Judge) after hearing and on examining witnesses by judgment and order dated 30.1.2001 upon setting a side the order dated 2.8.2001 restored the above Miscellaneous Case No. 05 of 1998 to its original file and number. The pre-emptee petitioners then moved the High Court Division and obtained Rule and the High Court Division, after hearing, discharged the Rule.

(3.) The learned Advocate-on-Record for the pre-emptee petitioners submitted that the High Court Division was wrong in discharging the Rule without considering that State Acquisition and Tenancy Act, 1950 provides its own procedure in respect of appeal and revision independent of the provisions laid down in the Code of Civil Procedure and the impugned dated 30.1.2002, in terms of the provision of section 96(13) of the said Act 1950 being an appellable order, the proceeding under Order 9 Rule CPC is not at all maintainable and the High Court Division erred in law in observing that order 9 Rule 9 CPC is applicable in such proceeding.