DANISH ALI Vs. SAKINA BAI

JUDGEMENT

(1.) This appeal, following leave, by the plaintiffs is from the judgment and order dated 27.7.97, passed by "the High Court Division, in Civil order No. 2929 of 1997 summarily disposing of an application under section 115(1) of the Code of Civil Procedure, setting aside the order dated 6.4.97 passed by the learned Subordinate Judge, 3rd Court, Dhaka in Misc. Case No. 89 of 1987, directing defendant respondent No. 1 Mrs. Sakin Bai to appear in court personally at the time of hearing of the said case for her examination in Court.

(2.) The relevant facts are that the plaintiff appellants on 31.12.86 got an ex parte decree in Title Suit No. 203 of 1984 of the Court of the Subordinate Judge 4th court, Dhaka for declaration of their title to the suit property, comprising of land and buildings within Dhaka City, on adverse possession. Defendant respondent No. 1 through her son Samsuddin Soleman as her constituted attorney instituted the aforesaid Misc Case, under Order IX Rule 13 C.P.C. for setting aside the said ex parte decree on the ground of fraud and non service of summons. In the said Misc. Case the plaintiffs on 28.1.94 filed an application seeking for a direction upon defendant No. 1 Sakina Bai Soleman to make her personal appearance in court for her examination it was, inter alia, stated in the petition that the alleged attorney of defendant No. 1 after creating a forged amukternama had falsely instituted the case and that they have received information that the said Sakina Bai is a dead person and that she died 2/3 years back. By filing a written objection on behalf of defendant No. 1 the prayer of the plaintiffs was opposed stating inter alia, that she is very much alive and has been residing abroad at present and that her son as her legally constituted attorney has been conducting the aforesaid Misc. Case.

(3.) Hearing both the parties the trial judge by an order dated 6.4.97 allowed the plaintiffs prayer for personal appearance of defendant No. 1 in court. Whereupon defendant No. 1 through her aforesaid attorney moved the High Court Division in revision as already noted. Division Bench of the High Court Division without issuing any Rule in the matter and in absence of the plaintiffs disposed of that revisional application by the impugned judgment and order, setting aside the order of the trial court holding inter alia, that the trial Judge upon taking an absolutely erroneous view on the Ward Commissioner's Certificate to be a death certificate of defendant No. 1 wrongly directed her to appear in person before the court.