High Court Division · Civil Revisional Jurisdiction
Md. Nurul Haque and others v Md. Shamsuddin Mondol and others
Civil Revision 2253/2012 · Decided 18 June 2026
The petitioners' Partition Suit No. 72 of 1994 was dismissed for default under Order IX rule 8 of the Code of Civil Procedure on 27.07.2009, the date fixed for peremptory hearing, after their adjournment petition was rejected. They said their intended first witness, a union parishad secretary, could not get leave owing to an official inauguration. The Joint District Judge, Additional Court, Kushtia dismissed their restoration case, finding the cause unproved, after earlier rejecting their application to examine the union parishad chairman and produce documents. The Additional District Judge affirmed. The High Court Division held that, having refused the plaintiffs the opportunity to adduce that evidence, the courts below could not draw an adverse inference from its absence. The restoration case was filed promptly, showing bona fides, and a partition suit's recurring cause of action meant refusal would only force a fresh suit. Noting the petitioners' earlier conduct, the Court made the Rule absolute with costs of Tk. 10,000, restored the suit and directed its expeditious disposal.
- Q1
Whether the courts below erred in refusing to restore a partition suit dismissed for default after themselves refusing the plaintiffs an opportunity to prove the cause of their witness's absence.
- Where a court refuses a party the opportunity to adduce evidence in support of the cause shown for absence, it is not proper to draw an adverse inference against that party for not producing that evidence.
- The cause of action in a partition suit is recurring and continuing, and dismissal of a partition suit for default does not bar a subsequent suit for partition.
- Applications to restore long-pending partition suits should ordinarily be considered with a view to advancing substantial justice rather than defeating it on technical grounds.
- Filing the restoration case promptly indicated a bona fide intention to pursue the suit rather than abandonment.
- Given the petitioners' earlier conduct, restoration was granted on payment of costs of Tk. 10,000 to the opposite parties, with a direction to dispose of the suit expeditiously.
Once such an opportunity was denied, it was not proper for the Courts below to draw an adverse inference against them for nonproduction of the same evidence.
In the court’s own words.
Civil Revision 2253/2012, as published by the Supreme Court of Bangladesh. 19 pages, with paragraph numbers for citing.
1IN THE SUPREME COURT OF BANGLADESH
2HIGH COURT DIVISION (CIVIL REVISIONAL JURISDICTION)
Present:
3MR. JUSTICE ABDUR RAHMAN
4Civil Revision No. 2253 of 2012
5Md. Nurul Haque and others
….. Petitioners
-Versus-
6Md. Shamsuddin Mondol and others
….. Opposite Parties
7Mr. Md. Saidul Alam Khan, Advocate
….. For the petitioners
8Mr. Shasti Sarker, Advocate
….. For the opposite parties
9Heard on: 17.06.2026 and 18.06.2026 A.D.
10Judgment on: 18.06.2026 A.D. Thursday,
[ 4 Avlvp 1433 e½vã ]
JUDGMENT
11Abdur Rahman, J:
12At the instance of the petitioners, this application has been filed under section 115(1) of the Code of Civil Procedure, 1908, and the Rule was issued calling upon the opposite parties to show cause as to why the judgment and order dated 20.02.2012 passed by the learned Additional District Judge, 1st Court, Kushtia, in Miscellaneous Appeal No. 46 of 2010 affirming the judgment and order No. 182 dated 20.07.2010 passed by the learned Joint District Judge, Additional Court, Kushtia, in Miscellaneous Case No. 04 of 2009 dismissing the said Miscellaneous Case, should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.
13The relevant facts, shorn of unnecessary details, are that the petitioners as plaintiffs instituted Partition Suit No. 72 of 1994 against the opposite parties and others
seeking partition of the suit property. The suit remained pending for a considerable period and was ultimately fixed for peremptory hearing on 27.07.2009. On the said date, the plaintiffs failed to proceed with the suit; consequently, the learned trial Court dismissed it for default under Order IX Rule 8 of the Code of Civil Procedure, 1908.
14Being aggrieved by the dismissal order, the plaintiffs instituted Miscellaneous Case No. 04 of 2009 seeking restoration of the suit. Their case, in brief, was that the supposed PW1 was serving as the Secretary of Kursha Union Parishad, and on the date fixed for the hearing, he could not obtain leave from his office because the Member of Parliament was scheduled to inaugurate the newly constructed Union Parishad Complex. As such, he was unable to attend Court, and sought time, thus, the suit was dismissed for default.
15In support of the aforesaid plea, the plaintiffs attempted to produce a certificate issued by the Chairman of Kursha Union Parishad. However, the learned Joint
District Judge, by order No.181 dated 19.07.2010, rejected the petition filed for that purpose. Thereafter, upon hearing the parties, the learned trial Court by judgment and order dated 20.07.2010 dismissed the Miscellaneous Case.
16Against the said order, the plaintiffs preferred Miscellaneous Appeal No.46 of 2010 before the learned Additional District Judge, 1st Court, Kushtia. Upon hearing the parties, the learned Appellate Court, by judgment and order dated 20.02.2012, dismissed the appeal and affirmed the order of the trial Court.
17Being aggrieved thereby, the petitioners moved this Court and obtained the present Rule.
18The opposite parties made appearance in the instant Rule by filing Wokalatnama on 25.02.2014, but they did not file any counter affidavit to controvert the facts whatsoever.
19Mr. Md. Saidul Alam Khan, the learned Counsel appearing on behalf of the petitioners, submits that both the Courts below failed to appreciate the facts and circumstances of the case in their proper perspective. He submits that the original suit is a partition suit involving a disputed title and shares amongst numerous parties, and therefore, its disposal necessarily required substantial time. However, both the Courts below were influenced by the mere fact that the suit had remained pending for a long period and, on that basis, rejected the prayer for restoration.
20The learned Counsel further submits that the plaintiffs made a bona fide attempt to substantiate the cause shown for their absence by aducing the Chairman of Kursha Union Parishad and relevant documentary evidence. However, the learned trial Court rejected their application for adducing such evidence and thereafter erroneously concluded that the plaintiffs had failed to prove their case. According to him, such finding is self-
contradictory and constitutes a clear misreading and nonconsideration of material evidence.
21He further contends that the Courts below misconstrued the scope of Order IX Rule 8 and Order XVII of the Code and failed to consider that the cause of action in a partition suit is a recurring and continuing one. Referring to the decision reported in 28 BLD (HCD) 457, he submits that dismissal of a partition suit for default does not extinguish the substantive right of a co-sharer and, therefore, a liberal approach ought to have been adopted in considering the restoration application.
22On the other hand, Mr Shasti Sarker, the learned Counsel appearing on behalf of the opposite parties, supports the impugned judgments and submits that the plaintiffs failed to establish sufficient cause for their absence on the date fixed for hearing and, as such, the Courts below rightly dismissed the Miscellaneous Case and the appeal.
23Learned Counsel further submits that earlier on several occasions, the petitioners showed such manipulated pretexts that restored the suit, and they are harassing the opposite parties for an indefinite time; consequently, the instant Rule is liable to be discharged with exemplary costs.
24I have heard the learned Counsel for both sides and perused the Rule, the impugned judgments, and the materials on record.
25On perusal of the judgment of the learned Trial Court, it is found that it observed in the following way:
26“িক তার দাবী মােনর িনিমে িতিন য ছ টর দরখা িদেয়িছেলন ও
27তার উ ছ টর দরখা নামঞ্জুর হয় তা মােনর িনিমে তার
28ইউিনয়ন পিরষদ কাযালেয়র
$ অিফেস থাকা উ ছ টর দরখাে র কিপ
29দািলিলক মানাদী িহেসেব আদালেত দািখল কেরনিন। আবার দাবীর
30সমথেন
31$ িতিন ইউিনয়ন পিরষেদর চয়ারম,ানেক সা-ী িহেসেব পরী-া
32না কের পরবত.েত উভয় পে-র সা-,0হন সমা1 অে2 যু3 তক$
334নানীর জন, ০৪.৭.১০ তািরেখ িদন ধায $ করা হেল উ তািরেখও
34চয়ারম,ানেক সা-ী িহেসেব হা3জর না কের যু3 তক$ 4নানীর জন,
35সমেয়র াথনা
$ করেল সমেয়র াথনা
$ মঞ্জুর অে2 ইং ১৫.৭.১০
36তািরখ যু3 তক$ 4নানীর জন, িদন ধায $ করা হয় এবং ১৫.৭.১০ ইং তািরেখ উভয়পে-র যু3 তক$ =বনাে2 ২০.৭.১০ইং তািরখ রায় কােশর জন, িদন ধায করা
$ হয়। এই@প Ae¯’vi ি-েত ১৯.৭.১০ ইং
37তািরেখ দরখা কারীপ- কুশা $ ইউিনয়ন পিরষেদর চয়ারম,ােনর সা-, 0হেনর াথনা $ Ae¯’v িবেবচনায় দরখা
38$ করেল ছানী মামলার সািবক ট bvgÄyi করা হয়। দরখা কারী তার ছানীর দরখাে আনীত ব ব, মান করার সকল কার সুেযাগ থাকা সেCও যথাসমেয় তা 0হন কেরিন মেম $ এে-েDও মান পাওয়া যায়। তাছাড়া মাননীয় সংসদ সদস, উ কুশা $ ইউিনয়ন পিরষেদর নতন ভবণ ধায $ ইং ২৭.৭.০৯ তািরেখ উেGাধন করেল সইসংHাে2 িচ ঠও সংিJK ইউিনয়ন পিরষদ কাযালেয় $ রেয়েছ। িক দরখা কারীপে-র ১নং সা-ী কুশা $ ইউিনয়ন পিরষেদর সচীব হওয়া সেLও উ িচ ঠর কান কিপই আদালেত দািখল কের মান কেরনিন য, মূল মাকNমার ধায $ ইং ২৭.৭.০৯ তািরেখ কুশা $ ইউিনয়ন পিরষেদর নতন ভবণ ¯’vbxq মাননীয় সংসদ সদস, উেGাধন করেবন। সকারেন সািবক
$ িবেবচনায় দরখা কারীর দাবীকৃত
39এই ব েব,র কান িভি খুেঁ জ পাওয়া যায় না।“
40On the other hand, the learned Appellate Court observed that:
41“সেবাপির
42$ ১ নং বাদী য ধায $ তািরেখ ছ ট পানিন এ মেম $ কান ব ব, বাদী প- িবS িনT আদালেত মােণর চKা কেরনিন। কােজই নতন কের তােক সুেযাগ দয়ার কান কারণ দখা যায় না।
এমতাবস্হায় ধায $ তািরেখ বাদী পে-র সা-ীগেণর উপিUত না
43হওয়াটার কারণ সে2াষজনক নয়। এ ছাড়া মূল মামলার িবিভV েরর
44ইতপূেবর$ কমকাW
$ দৃেK আদালেতর িনকট তীয়মান হেয়েছ য, এই
45মামলার বাদী প- অD মামলা পিরচালনার আ0হ হািরেয় ফেলেছন
46অ হতক িববাদী রসপনেড Z প-েক হয়রানী করার জন, মামলা ট
473জইেয় রেখেছন।“
48From the aforesaid observations of the learned Trial Court, it is evident that the petitioners tried to produce the Chairmen of the Kursha Union Parishad to prove the substance of his time petition and the learned trial Court did not consider the said petition and the learned Appellate Court also misconceive to the said facts and thereby the Appellate Court committed error on the face of the record as to non-consideration of the facts thereby occasioned failure of justice.
49However, it appears from the record that the original suit was fixed for hearing on 27.07.2009. On that date, the plaintiffs filed an application seeking adjournment on the ground that the person who would be PW1, being the
Secretary of Kursha Union Parishad, could not obtain leave from his office owing to the scheduled inauguration of the Union Parishad Complex by the Member of Parliament. The application having been rejected, the suit was dismissed for default.
50Now, to take a clear legal standing of the instance case approved in Order IX Rule 8, and Order XVII Rules 1 & 3 respectively, of the Code of Civil Procedure, 1908, runs as follows:
51"Procedure where the defendant only appears:
52Where the defendant appears and the plaintiff does
53not appear when the suit is called on for hearing, the
54Court shall make an order that the suit be dismissed,
55unless the defendant admits the claim, or part
56thereof, in which case the Court shall pass a decree
57against the defendant upon such admission, and,
58where part only of the claim has been admitted,
59shall dismiss the suit so far as it relates to the
60remainder."
61And The provisions of Order 17 Rule 1 and 3, which run as follows:
62"The Court may grant time and adjourn the hearing.
63(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.
64(2) —
65(3) Notwithstanding anything contained in subrules (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 otter party, within
time to be specified by it; noncompliance with
66which, by the plaintiff shall render the suit liable to
67be dismissed and, by the defendant shall render the
68suit liable to be disposed of ex parte:
69Provided that the Court shall not grant more than
70the adjournments to a party, even with costs under
71this rule."
72From the plain reading of the aforesaid provision of the law, it is manifest that both the Subordinate Courts were misconceived that the plaintiffs were appeared through time petition, but their witnesses were absent, and thereby caused omission to follow due process of law as contained in the aforesaid provisions.
73However, the decision of Harmuj Sikder and others – Vs- Ayub Ali Sikder and others as contained in 28 BLD(HCD)457, where their Lordships opined that:
74“Section 12 of the Code has put a bar on a plaintiff from instituting a further suit with respect to any
particular cause of action in court to which the Code applies where he precluded by any rules thereof from saluting such suit. Rule 9(1) of Order 9 of Code has clearly provided that where suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action, but he may apply for an order to set the dismissal aside. So, the core question to be determined is whether a plaintiff should be allowed to bring a fresh suit, and whether the fresh suit is instituted on the same cause of action on which the previous suit, dismissed for default under Rule 8 of Order 9 of the Code, was brought. Naturally, the question that follows is whether the cause of action to bring a suit for partition subsists even after the dismissal of the earlier suit for default under Rule 8 of Order 9 of the Code. It is an admitted legal position that there is no limitation for filing a suit for partition, and unless there is a total ouster of the right of a co-sharer from the ejmali property, he shall be deemed to be in ejmali possession of
75the properties sought to be partitioned, if not partitioned earlier by metes and bounds. —(6)."
76The cause of action for a partition suit being a recurring one, dismissal of a partition suit for default does not bar a subsequent suit for partition. Moreover, it is very clear that the petitioner filed the miscellaneous case, being No. 4 of 2009, within one month, availing the earliest opportunity at the relevant time, but the learned Subordinate courts failed to assess the bona fide intention of the petitioner.
77The learned trial Court, while dismissing the restoration case, observed that although the plaintiffs claimed to have submitted a leave application and relied upon official records of the Union Parishad, they failed to produce copies of such documents and also failed to examine the Chairman of the Union Parishad in support of their case. But Annexure-B reveals that the petitioners
finally sought to adduce the Chairman before the Court, and the application was rejected.
78Thereafter, the learned Appellate Court concurred with the above findings and held that the plaintiffs failed to prove that the person who would be PW1 could not obtain leave on the relevant date and that no further opportunity should be granted to them.
79Upon careful scrutiny of the record, however, it appears that the plaintiffs subsequently filed an application praying for examination of the Chairman of Kursha Union Parishad and for production of relevant documents in support of their plea. The said application was rejected by the learned trial Court vide order No. 181 dated 19.07.2010. Thus, after refusing the plaintiffs an opportunity to adduce the very evidence they sought to rely upon, the Courts below held that the plaintiffs had failed to substantiate their claim.
80In the facts and circumstances of the case, I am constrained to hold that the record demonstrates that the plaintiffs made a bona fide attempt to prove the cause assigned for their witness’s absence. Once such an opportunity was denied, it was not proper for the Courts below to draw an adverse inference against them for nonproduction of the same evidence.
81However, it is worth noting that the original suit is admittedly a long-pending partition suit. The cause of action in a partition suit is a recurring and continuing one, and dismissal of a partition suit for default does not operate as a bar to a subsequent suit for partition. If so, the petitioners would be bound to file a new suit at the demise of the instant suit. Then, both parties must undertake all necessary steps and formalities to bring the suit to the stage of peremptory hearing. Those processes also create complications for the litigant parties; therefore, applications for restoration in such matters should ordinarily be considered with a view to advancing
substantial justice rather than defeating it on technical grounds.
82It further appears that the petitioners instituted Miscellaneous Case No.04 of 2009 within the prescribed period and approached the Court at the earliest opportunity. Such conduct is indicative of their bona fide intention to pursue the suit and cannot reasonably be construed as abandonment of the litigation. Thus, there are palpable substances in the arguments of the learned Counsel for the opposite parties in respect of the fact that, on several earlier occasions, the petitioners raised such concomitant pretexts that restored the suit, and they are harassing the opposite parties for an indefinite time; consequently, the petitioners should not be spared without costs to avail the restoration of the original suit.
83Having considered the facts and circumstances of the case, the evidence on record, the findings of the Subordinate Courts and the principles laid down in the aforesaid decision, I am of the view that both the Courts
below misdirected themselves in law by failing to consider material aspects of the case and by refusing to appreciate the bona fide conduct of the petitioners. Consequently, the impugned judgments suffer from misreading and nonconsideration of material evidence, resulting in an error in the decision, occasioning failure of justice.
84Accordingly, I find essence in the Rule, and thereby, the Rule is made absolute with costs to the tune of BDT 10,000/=(Taka ten thousand) only.
85However, the judgment and order dated 20.02.2012 passed by the learned Additional District Judge, 1st Court, Kushtia, in Miscellaneous Appeal No.46 of 2010, and the judgment and order dated 20.07.2010 passed by the learned Joint District Judge, Additional Court, Kushtia, in Miscellaneous Case No.04 of 2009 are hereby set aside.
86The Miscellaneous Case No.04 of 2009 is allowed. Consequently, Partition Suit No.72 of 1994 is restored to its original file and number.
87The petitioners are hereby directed to deposit the aforesaid costs amount before the learned Trial Court on its 1st date of hearing, and the opposite parties shall be entitled to receive the said money at their own initiative.
88The learned trial Court is directed to proceed with the suit, notifying the parties, considering it as an old one, and disposing of the same expeditiously in accordance with law, giving no adjournment, except for substantial needs of the parties.
89Let a copy of this judgment be transmitted to the Court concerned forthwith.
( Abdur Rahman, J )
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