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When ex-parte decree can be set aside ?

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07th-Oct-2017       
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High Court Division :
(Civil Revisional Jurisdiction)
SM Emdadul Huque J
Torab Ali and another Defendant-Respondent ............... Petitioners
vs
Madris Ali Saha and others..........     Opposite Parties
Code of Civil Procedure (V of 1908)
Order IX, rule 13
Order XVII, rule 1(3)(4)(7)
Judgment
June 29th, 2015.
If any case decreed ex-parte on failure of the parties for non complaince of the procedure of sub-rules 3 or 4 of rule 1 of Order XVII only then the question of setting aside the exparte decree under sub-rule 7 of rule 1 of Order XVII is applicable. . ..... (13)
Md Khaled Ahmed, Advocate -For the Petitioners.
Mohammad Noor Hossain, Advocate -For Opposite Party Nos. 1 and 2.
Judgment
On an application of the petitioner Torab Ali and another under Section 115(4) of the Code of Civil Procedure without granting leave this court issued Rule calling upon the opposite party Nos. I and 2 to show cause as to why the impugned judgment and order dated 15-9-2005 passed by the learned District Judge, Moulvibazar in Civil Revision No. 34 of 2005 affirming the Order dated 24-5-2005 Passed by the Senior Assistant Judge, Kulaura, Mou1vibazar in Miscellaneous case No. 10 of 2005 arising out of Title Suit No. 153 of 2003 rejecting the Miscellaneous case should not be set-aside.
2. Facts necessary for disposal of the Rule. in short, are that the opposite party Nos. 1 and 2 as plaintiffs instituted Title Suit No. 153 of 2003 in the court of Senior assistant Judge, Kulaura, Moulvibazar for declaration of title and, partition. The summons were duly served upon the defendant Nos. 1 and 2 who subsequently appeared before the court and prayed time for filing written statement which was allowed. But ultimately they did not file written statement and also did not appear before the court. The trial court took up the case for hearing and decreed the suit ex-parte on 8-2-2005.
3. Against the said ex-parte decree the defendant Nos. I and 2 filed application under Order IX, rule 13 of the Code of Civil Procedure for setting-aside the ex-parte decree and thus Miscellaneous Case No. 10 of 2005 was started. The trial court after hearing the parties and considering the facts and circumstances of the case rejected the said application on the ground that the petitioner failed to deposit Taka 2,000 provided under rule 7 of Order 17 of the Code of Civil Procedure while filing the application against the judgment and Order dated 24-5-2005.
4. Against the said judgment and order of the trial Court the defendant Nos. 1 and 2 filed Revisional application No. 34 of 2005 under Section 115(2) of the Code of Civil Procedure before the learned District Judge, Moulvibazar. Who after hearing the parties and considering the relevant law rejecting the revisional application on the ground that the petitioner did not fulfill the provision of rule 7 of Order 17 of the Code of Civil Procedure by its judgment and order dated 15-9-2005.
5. Being aggrieved by and dissatisfied with the impugned judgment and order of the courts below the petitioner filed this revisional application under Section 115 5(4) of the Code of Civil Procedure and according by the Rule was issued.
6. Mr Mohammad Noor Hossain, the learned Advocate enter appeared on behalf of the opposite party Nos. 1 and 2 through Vokalatnama to oppose the Rule.
7. Mr Md Khaled Ahmed, the learned Advocate appearing on behalf of the petitioners argued that both the courts on misconception of the provision of law erroneously rejected the application of the petitioner. He argued that the trial court rejecting the application on the ground that the plaintiff did not deposit Taka 2,000 as per provision of sub-rule 7 of rule 1 of Order XVII of the Code of Civil Procedure without considering that the petitioner did not file application under sub-rule 7 of rule I of Order XVII or Order IX, rule 13(a) rather he filed application under Order IX, rule 13 of the Code of Civil Procedure. The learned Advocate further argued that the learned District Judge also committed error in law while rejecting the revisional application on misconception of provision of law since in the instant case the amendment provision of sub-rule 7 of rule 1 of Order XVII of the Code of Civil Procedure is not at all applicable in the instant case since the trial court did not avail the procedure of sub-rule 3 and 4 of rule 1 of Order XVII so the judgment of the courts below is eroneous one which should be interferred with. He prayed for making the Rule absolute.
8. On the contrary Mr Mohammad Noor Hossain, the learned Advocate appearing on behalf of the opposite party Nos. I and 2 argued that the petitioners as defendants though appeared but without filling written statement trying to delay to proceed the suit even did not take any step for adjornment of the matter thus the trial court rightly took up the case for ex-parte hearing and decreed the suit ex-parte in such a case the newly amendment provision of the Code of Civil Procedure is very much applicable in the instant case and the courts below rightly passed the impugned which should not be interferred with. However, lastly he argued that this court may send back the matter to the trial court to consider the application on merit.
9. I have heard the learned Advocates of both the sides, perused the impugned judgment of the courts below, the papers and documents as available on the records. It appears that the opposite party Nos. 1 and 2 as plaintiffs filed Title Suit No. 153 of 2003 before the Assistant Judge, Kulawara, Moulvibazar for declaration of title and partition.
The defendant Nos. 1 and 2 appeared before the court and obtained time for filing written statement but ultimately did not file written statement and also did not take any steps to contest the suit and the trial court took up the case for ex-parte hearing and decreed the suit ex-parte on 8-2-2005 without availing the procedure of rule 1 of order XVII of the Code of Civil Procedure.
Against the said ex-parte decree of the trial court the defendant Nos. 1 and 2 filed application under Order IX, rule 13 of the Code of Civil Procedure for setting-aside the ex-parte decree. Which was heard by the trial court and the trial court without going to merit of the case of the petitioners only considering the amendment provision of rule I of order XVII the Code of Civil Procedure opined that since the petitioners without depositing Taka 2,000 as provided under sub-rule 7 of rule 1 of order XVII filed the application which is against the provision of law and rejecting the application. Against which the petitioners filed revisional  application before the District Judge, Moulvibazar under Section 115(2) of the Code of Civil Procedure, who after hearing the parties and considering the procedure of law also rejected the revisional application considering the same view as taken by the trial Court. The appellate court opined to the effect:-
“উল্লেখিত বক্তব্যের পরিপ্রেক্ষিতে Avwg The Code of Civil Procedure 3rd Amendment, 2003
: এর ১৭ নং আদেশের ৭ নং বিধিটি যতœ সহকারে পাঠ করিলাম, যাহা নিম্নরূপঃ-
"(7)suit dismissed or disposed of exparte under sub-rule (3) or (4) shall not be revived for hearing unless the party for whose noncompliance the suit was dismissed or disposed of ex-parte, makes within thirty days of such dismissal or ex-parte disposal, non-application together with cost of two thousand taka into Court for such revival, and upon such application being made, the suit shall be revived for hearing without any further proceeding, and cost deposited into Court shall be paid to the other party."
১০. বর্ণিত আইনের উল্লেখিত বিধি পর্যালোচনা করিয়া দেখা যায় যে, বিবাদী-প্রার্থী পক্ষ আদালতের আদেশ অনুসারে লিখিত জবাব দাখিল করিয়াছিলেন না এবং সেই কারণে বিজ্ঞ নিম্ন আদালত একতরফাভাবে মূল মোকদ্দমাটি নিষ্পত্তি করিয়াছিলেন। যেহেতু বিবাদী প্রার্থীপক্ষ উক্ত আদেশের দ্বারা ক্ষুব্ধ হইয়া দেওয়ানী কার্যবিধির ১৭ আদেশের সংশোধিত ৭ নং বিধির বিধান অনুসারে ২০০০ টাকা খরচে মূল মোকদ্দমা পুনরুজীবিত করার প্রার্থনা দাখিল করিলে বিজ্ঞ নিম্ন আদালত উক্ত প্রার্থনা  মঞ্জুর করিয়া মূল মোকদ্দমাটি বিধি মোতাবেক পুনরুজীবিত করিতেন। কিš' বিবাদী-প্রার্থীপক্ষ আইনের উল্লেখিত বিধিসমূহ অবলোকন না করিয়া দেওয়ানী কার্যবিধির ৯ নং আদেশের ১৩নং বিধির বিধানানুসারে একতরফা ডিক্রি রদ ও রহিতের প্রার্থনা করিয়া ১০/২০০৫ নং বিবিধ মোকদ্দমা আনয়ন করিয়াছিলেন এবং সেই কারণেই বিজ্ঞ নিম্ন আদালত সঠিকভাবে উক্ত বিবিধ মোকদ্দমাটি রক্ষণীয় নয় বলিয়া উল্লেখক্রমে আদেশ প্রদান করিয়াছিলেন।
বিজ্ঞ নিম্ন আদালতের তর্কিত আদেশের উপরে হস্তক্ষেপ করার আদৌ কোন কারণ আছে বলিয়া আমি মনে করি না।”
11. I have considered the impugned Judgment and the aforesaid provision of law. It appears that the courts below considering the procedure of rule I (7) of order XVII of the Code of Civil Procedure passed the impugned Judgment but the trial Court without exhausting the procedure of rule 1(3) and 1(4) of Order XVII of new amendment law decreed the suit ex-part.
12. The trial court also without considering the procedure as laid down in the amendment order 17 of the Code of Civil Procedure passed the order. The rule 1 of order XVII of the Code of Civil Procedure reproduced as under:
Order XVII
1.-( 1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit.
(2) In every such case the Court shall fix a day for the further hearing of the suit, and may make such order as it thinks fit with respect to the costs occasioned by the adjournment:
Provided that, when the hearing of evidence has once begun, the hearing of the suit shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the hearing beyond the following day to be necessary for reasons to be recorded.
(3) Notwithstanding anything contained in sub-rules (1) and (2), the Court shall not grant more than six adjournments in a suit before peremptory hearing at the instance of either party to the suit, and any adjournment granted to a party beyond the aforesaid limit shall make such party liable to pay a cost of not less than two hundred taka and not more than one thousand taka to the other party, within time to be specified by it; noncompliance with which, by the plaintiff shall render the suit liable to be dismissed and, by the defendant shall render the suit liable to be dismissed of ex-parte: provided that the Court shall not grant more than three adjournments to a party even with cost under this rule.
(4) Notwithstanding anything contained in the Code the Court. shall not grant any adjournment at the peremptory hearing stage and thereafter in a suit at the instance of either party to the suit:
Provided that if for ends of justice any adjournment is granted to a party under this sub-rule, the Court shall direct that party to pay a cost of not less than two hundred taka and not more than one thousand taka to the other party, within time to be specified by it, noncompliance with which, by the plaintiff shall render the suit liable to be dismissed and, by the defendant shall render the suit liable to disposed of ex-parte: Provided further that the Court shall not grant more than three adjournments to a party even with cost under the above proviso.
(5) Where applications are made by both the parties for any adjournment under sub-rule (3) or (4) and the applications are allowed with costs, the Court shall direct each party to pay such cost as revenue to the State.
(6) The Court shall not, of its own, order any adjournment under this rule without recording reasons therefor.
(7) A suit dismissed or disposed of exparte under sub-rule (3) or (4) shall not be revived for hearing unless the party, for whose noncompliance the suit was dismissed or disposed of ex-parte, makes within thirty of such dismissal of ex-parte disposal, an application together with cost of two thousand taka into Court for such revival; and upon such application being make, the suit shall be revived for hearing without any further proceeding; and cost deposited into Court shall be paid to the other party.
provides that if any case decreed ex-parte on failure of the parties for non complaince of the procedure of sub-rule 3 or 4 of rule 1 of order XVII only then the question of setting aside the ex-parte decree under sub-rule 7 of rule I of order XVII is applicable. But it appears that without prevailing the aforesaid procedure the trial court decreed the suit ex-parte. In such a case no scope to file application under sub-rule 7 of rule I of order XVII and-the defendants Tightly filed the application under rule 13 of order IX of the code of civil procedure, as such the findings of the courts below is erroneous one. Even the procedure of Order IX, rule 13 of the Code of Civil Procedure has not been repealed, so, the Petitioner has every right to invoke the said jurisdiction.
14. Order IX, rule 13 provides that if he satisfies the Court that the Summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing the Court shall, make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit. So in such a case the Court shall consider the application of the petitioner as provided under the provision of Order IX, rule 13 of the Code of Civil Procedure but errneously passed the impugned Judgment considering the procedure of rule I of order XVII of the Code of Civil Procedure which they committed serious error in law resulting in an error in the decision occasioning failure of Justice.
15. Considering the aforesaid facts and circumstances of the case and the discussions made above I find merit in the Rule.
16. Accordingly, the Leave is granted and the Rule is made absolute. The impugned judgment and order dated 15-9-2005 passed by the learned District Judge, Moulvibazar in Civil Revision No. 34 of 2005 affirming the Judgment and order dated 24-5-2005 passed by the Senior Assistant Judge, Kulaura, Moulvibazar in Miscellaneous case No. 10 of 2005 arising out of Title Suit No. 153 of 2003 are hereby set-aside, however, without any order as to cost.
17. The trial Court is directed to dispose of the Miscellaneous Case No. 10 of 2005 filed under Order IX, rule 13 of the Code of Civil Procedure on merit considering the discussions as made above.
18. Since this is a long pending case, the trial Court is directed to dispose of the Miscellaneous case No-I 0 of 2005 as early as Possible preferable Within 4 (four) months from the date of receipt of the judgment.
19. The order of stay granted earlier by this court is hereby recalled and vacated.
Send down the Lower Court's Records at once.

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