P L D 1971 Supreme Court 189 (PLP)

M. R. KHAN, J.-This appeal, by special leave, is directed against the judgment and decree of a learned Single Judge of the High Court of East Pakistan in a Second Appeal arising out of O. S. No. 122 of 1958 of the Court of Munsif, North Raozan. The appellants herein are the plaintiffs of O. S. No. 122 of 1958. They brought the suit for setting aside an ex parte decree passed against them in O. S. No. 168 of 1953 of the same Court at North Raozan on the ground of fraudulent suppression of summonses in that suit. Ali Miah Serang, the first respondent herein instituted O. S. No. 168 of 1953 against the present appellants and the respondent No. 2 and obtained an ex parse decree therein on the 1st March 1954 declaring his right and posses sion in the land of that suit. It was the allegation of the appellants that the plaintiff of the said suit (the defendant No. 1 of the present suit) had fraudulently suppressed the summonses on them after unduly influencing the process-server and thereby obtained the ex parse decree behind their back. It was further alleged that the appellants had come to know of the ex parte decree only on the 2nd July 1957 when the said decree was put into execution. The defendant No. 1 contested the suit denying all the material allegations in the plaint and contended that summonses on the appellants were duly served on them in O. S. No. 168 of 1953 and that the appellants having been aware of the ex parte decree, the present suit for setting aside that decree was barred by limitation. The trial Court dismissed the suit holding that the sum monses in O. S. No. 168 of 1953 were not suppressed as alleged and that the suit was barred by limitation. On appeal, the first appellate Court disagreed with the trial Court and held that there was fraudulent suppression of summonses in O. S. No. 168 of 1953. It was also held that the suit was not barred by limitation. Accordingly, the first appellate Court reversed the judgment and decree of the trial Court, decreed the suit and set aside the ex parse decree in question. On second appeal by the defendant No. 1, a learned Single Judge of the High Court set aside the judgment and decree of the first appellate Court restored those of the trial Court. The main ground on which the decision of the learned Single Judge has been attacked in this appeal is the ground No. V taken in the petition for special leave. The said ground runs thus "V. For that in any view of the matter the learned Judges of the High Court having failed to exercise his powers under section 103 of the Code of Civil Procedure and apply his judicial mind to the issue involved and the evidence on record for the purpose of determining any issue of fact committed a substantial error of law in disposing of the appeal without himself arriving at a proper finding of fact on the basis of the evidence on record." Mr. D. C. Bhattacharjee, learned counsel for the appellants pressed this ground and contended that the learned Single Judge merely found fault with the judgment of the first appellate Court for omitting to consider certain items of evidence on record, but himself did not arrive at any finding on the point at issue on the basis of that evidence as enjoined by section 103 of the Code of Civil Procedure. There is substance in this contention. It appears from the judgment under appeal that the learned Single Judge criticised the judgment of the first appellate Court on the ground that that Court omitted to" consider the writ of delivery of possession with peon's return, dated 31-3-1952 Exh. E and the oral evidence of P. W. 5 Oli Meah Sowdagar and that of D. W. 2 Abul Khair. Having noticed these omissions on the part of the first appellate Court, the learned Single Judge abruptly allowed the appeal without himself evaluating that evidence and arriving at any finding, set aside the judgment and 'A decree of the first appellate Court and restored those of the trial Court. When the first appellate Court omitted to consider certain items of evidence in determining the issue of fact, it was the duty of the learned Single Judge under section 103 of= the Code to determine that issue having regard to the evidence on record including the items of evidence omitted to be consi dered by the Court of first appeal. Thus the learned Single Judge erred in allowing the appeal without complying with the provisions of the said section

103. It appears that the learned counsel appearing for the plaintiffs-respondents in the second appeal made a prayer for remanding the case to the first appellate Court for a fresh decision on consideration of all the relevant evidence on record, but the learned Single Judge disallowed this prayer on the following ground "No useful purpose would be served in sending back the case on remand to the lower appellate Court as the evidence on record indicates that there was due service of summons in O. S. No. 168 of 1953 and as it was found (by the trial Court) that the suit was barred by limitation." It appears from the above quotation that the learned Single Judge, without himself examining the evidence on record, observed that the evidence indicated that there was due service of summons in O. S. No. 168 of 1933. Obviously, this observa tion made without examining the evidence is no compliance with the provisions of section 103 of the Code. The learned Judge did not even test the rationale of the judgment of the trial Court before restoring it on setting aside the judgment of the Court of first appeal. For all these reasons, the judgment of the High Court can not be sustained. As there was laches on the part of the first appellate Court, it would be proper to remand the case to that Court for a fresh decision on consideration of all the relevant evidence on record. In the result, the appeal is allowed, the judgment and decree of the High Court and those of the first appellate Court are set aside and the case is remanded to the first appellate Court for re-hearing of the appeal in accordance with law and in the light of the above observation. Costs shall abide the result. Appeal accepted.