P L D 1952 Dacca 44 (PLP)

AKBAR, J.

‑The facts of this appeal are as follows. The respondent Puni Agarwallini obtained on the 4th April, 1946, an ex parte decree against these appellants in a suit for partition being Title Suit No. 258 of 1945 of the Court of Subordinate Judge, Bogra. The appellants then filed an appli cation under Order 9, Rule 13 of the Code of Civil Procedure, for setting aside the said ex parte decree on the ground that the defendant Tabibur Rahman who was entrusted with the defence of the case by all the defendants was unable to attend the Court on the date of hearing of the suit on the 4th April, 1946, due to his illness. The learned Subordinate Judge, however, disbelieved the story of illness and rejected the petition. There was an appeal by the defendants petitioners and the learned District judge held that the appeal was incom petent arid he accordingly dismissed the appeal. Hence this present second miscellaneous appeal to this Court by the defendants petitioners. Mr. B. C. Das on behalf of the respondent has taken a preliminary objection that the second miscellaneous appeal to this Court is incompetent. Mr. Nag on behalf of the appel lants has conceded that as the partition suit was valued at Rs. 25,000 the appeal to the lower appellate Curt was incompetent and the proper forum of the appeal should have been the High Court. He has, however, argued that the lower appellate Court has no jurisdiction to entertain the appeal and to dismiss the same and hence a second appeal would lie against the order of the lower appellate Court which was passed without jurisdiction. In support of this contention he has relied on the case of Wajuddin Pramanik v. Md. Balaki Moral 30 C. W. N.

63. In the said, case the observations of the Court at page 64 is as follows "It is contended that as there was no appeal to the lower appellate Court according to the appellant's own showing, a second appeal to this Court was incompetent. This point has been before this Court on many occasions and it is now settled that if the Court of Appeal below entertains an appeal which it has no jurisdiction to do, an appeal will lie from the decree of that Court, Kalipada Karmakar v. Sekhar Bashini Dasya 24 C L J 235 ; and Bandiram Mukherji v. Purna Chandra Roy 27 C L J

115. This view is also conso nant with common sense. If a Court assume& jurisdiction (I purposely avoid the expression `usurps jurisdiction') over a matter over which it has no jurisdiction and passes a decree either in the suit or on appeal and that decree is open to appeal under the ordinary law, no objection can be taken to an appeal from that decree on the ground that the Court below had no jurisdiction to try the matter, because an appeal may lie to higher Court on the sole question of jurisdiction. To hold otherwise would mean that the judgment of a Court which has no jurisdiction would remain in force and has the same effect as that of a Court of competent jurisdiction. We are therefore, of opinion that conceding that no appeal lay to the lower appellate Court in this case, a second appeal to this Court is maintainable on the ground that the order passed by the lower appellate Court is without jurisdiction". This case certainly supports the contention of Mr. Nag. It was also followed in Amirul Islam v. Sarada Kumar Sen and others 40 C. W. N.

149. We respectfully agree with the above observations and hold that this appeal to this Court is com petent. Now the question is whether the defendants' tadbirkar Tabibur Rahman was prevented by sufficient cause from attending the Court on the 4th April, 1946,, when the ex parte decree was passed. Mr. Nag has argued that the appellants have satisfactorily proved that on the 4th April, 1946, Tabibur Rahman was laid up with fever. and heart trouble which prevented him from attending the Court on that day. Mr. Das on behalf of the respondents has contended that no such ground has been taken in this appeal and hence we shall not go into that matter. In view of the provisions of section 103 of the Code of Civil Procedure we are entitled to determine an issue of fact which is necessary for the disposal of the case but which has not been determined by the lower appellate Court. (After discussing the evidence his Lordship proceeds.) In the circumstances of this case we are satisfied that this Tabibur Rahman who was entrusted with the defence of this case was prevented by sufficient case from attending the Court on the 4th April, 1946, when the partition suit was decreed ex parte. The fact, however, remains that Dr. Tozammal Hussain, who is one of the defendants and who treated his brother Tabibur Rahman during his illness, was fully aware that his brother who was looking after this litigation would not be in a position to attend the Court and hence he should have personally attended the Court and brought all these facts to the notice of the Court. As he was not diligent we set aside the ex parte decree only on certain terms and conditions. On the appellants paying Rs. 150 as costs within one month from the date in the Court of first instance this appeal will be allowed and the ex parte decree passed in Title Suit No. 258 of 1945 of the Court of Subordinate Judge, Bogra, will be set aside and the said suit will be restored to the file for disposal in accordance with law. In default the appeal will stand dismissed with costs. Lower Court records may be sent down as early as possible. GUHA, J.‑

I agree. K.M.A. Appeal allowed.