Case Title: Nazrul Islam vs Samsun amr Azim
Reference: 22 BLC (2017) 646
Fact of the Case:
Mrs. Samsun Nahar Azim was the wife of Late Captain Anwarul Azim who sacrificed his life for the country in 1971 in the War of Independence. To pay tribute to the Late Captain’s sacrifice, Government allotted the suit property in name of his family.
In 1984 Nazrul Islam and others instituted Title Suit No. 375 of 1984 for Specific Performance of Contract and on 11-3-1987 the Suit was decreed ex-parte against the defendants. Subsequently, in 1987, the Government (as one of the defendants) filed a Miscellaneous Case for setting aside of the ex-parte decree under Order IX, rule 13 of the Code of Civil Procedure (Hereinafter called as the Code). That Misc. Case of 1987 was rejected in 1990. Then the Government again filed Miscellaneous Appeal No. 158 of 1990 which was allowed on 1993 and the ex-parte decree of 1987 was also set aside.
On 15-8-1993 Mrs. Samsun Nahar Azim filed an application for addition of party under Order I, rule 10(2). Court ordered for her addition as defendant No. 3 in the suit. But in the meantime, the petitioners preferred Civil Revision No. 1739 of 1993 which was dismissed. Against such order the petitioners filed Civil Petition for Leave to Appeal No. 1001 of 1997 in the Appellate Division which was also dismissed in 2001. Then the records of the Title Suit No. 375 of 1984 was sent back to trial Court in 2003. But in the trial court, learned Advocate for Mrs. Samsun Nahar Azim was not found. The Court served due notice upon defendants through process server. The process server of the Court reported the notice as duly served, but no defendant appeared before the Court. So, the suit was again decreed ex-parte in 2005.
In 2007, Mrs. Samsun Nahar Azim came to know about the ex-parte decree and also applied for the certified copy of the judgment for further proceeding. Then she applied under Section 5 of the Limitation Act, 1908 for condonation of delay of 944 days.
The counsel for the petitioner Mr. Nazrul Islam filed written objection against such condonation by denying the allegation of non-service of notice. They claimed that notice was duly served. But the defendants did not appear before the Court, that’s why the suit was decreed ex-parte. So, no such condonation should be allowed after expiry of eighteen months of decree. That claimed that it can not be sustainable in the eye of law.
In 2009 the Learned Joint District Judge allowed the Misc. Case No. 77 of 2007 upon the finding that notice was not served because of probable fraud upon Mrs. Samsun Nahar Azim. Against this, Mr. Nazrul Islam filed Civil Revision No. 226 of 2009. But in this time again the revisional court affirmed the trial court’s decision of allowing the application under Order IX, rule 13 of the Code. Being dissatisfied with that decision, Mr. Nazrul Islam filed another revision (the present one) in the High Court Division.
Lawyers of Mr. Nazmul Islam claimed in the Court that, Mrs. Samsun Nahar Azim came to the Court with unclean hands because she filed the application after 944 days of limitation period and also that she even delayed in filing the petition by 18 days after getting the certified copy of the judgment which is barred by Article 164 of the Limitation Act, 1908. The learned advocates also argued that the learned trial court erred in law allowing the condonation of delay where the defendant has no locus-standi as being mere lessee/allotee under the government.
Counsels for Mrs. Samsun Nahar Azim submitted that their client was not served any proper notice/summon to compete the case in which an ex-parte decree had been passed against her. They also referred to the service return of the process server and showed that address of the notice and the address of the plaint are not same. No signature of the Mokabila witness was put in the summon which obviously proves non-service of notice. So, the condonation of delay was righteous decision.
Senior Advocate Mr. Fida M Kamal, on behalf of Mrs. Samsun Nahar submitted that the first ex-parte decree was passed on 11-3-1987 and after somedays the plaintiff amended the plaint fraudulently. He argued that even if application of ex-parte decree was barred by limitation, but on mere ground of fraud on the Court the decree could not be maintained.
The Court found elements of fraud and collusion upon the Court and also upon the defendant. When fraud is proved the decree so obtained becomes nothing but nullity in the eye of law. As fraud is proved from the evidences present before the Court, there is no bar of limitation. The Court also found that, the petitioners did not place any objection as to 18 days delay before the trial Court.
The Court, referring to 35 DLR 164, also held that, as summons are essential requirement to proceed a suit, non-complying with such a requirement can be enough ground for setting aside an ex-parte decree.
The Court finally found that the decision of lower court of allowing setting aside application was not incorrect. As there was no cause for interference, the Court refused the revisional application accordingly. Court further ordered the suit to be disposed within 6 months from receipt of this order.
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