Civil Rules & Order
Rule 388(2)- Transfer of a case from one Court to another Court on an off date must be communicated either to the party concerned or to his advocate- The learned Judge approached the case absolutely mechanically and did not consider the pertinent broad fact involved in the suit that the fact of transfer of the suit was not communicated to the defendant. In the context, the learned Judge also failed to consider rule 388(2) and Note I thereto of the Civil Rules and Order which has mandated that the fact of transfer of a case from one Court to another Court on an off date must be communicated either to the party concerned or to his advocate. Kashaituli Jame Mosque Waqf Estate VS= Md. Abdus Salam & others, [1 LM (AD) 239]
Civil Rules and Orders
Rule 843 (1) (2) read with Code of Civil Procedure (V of 1908]
Order XXXII, rule 4 (4) The Court Nazir, not being an independent person, could not have been lawfully appointed as guardian of the minors.
The Court Nazir being part and parcel of the process of service of summons was not an independent person and could not be expected to protect the interests of the minors and, therefore, any service of summons upon the minors through their Court-appointed guardian, namely the Court Nazir was not valid in the eye of law.
Having considered the submissions of the learned Advocate for the appellants, and having perused the materials on record, the Appellate Division is inclined to accept the submission of Mr. Rashid that the Court Nazir is not a proper person to be appointed guardian of minors. Moreover, the Appellate Division finds from Order No. 6 dated 13.11.1989 that the Court guardian submitted a report to the effect that the minors do not have any title or interest in the suit. Such a report is clearly illegal since it is not within the jurisdiction of the Courts Nazır to decide whether any party to the suit has interest in the suit. Also, in submitting such report, he is clearly acting against the interest of the minor defendants. In view of the above facts and circumstances, the Appellate Division is satisfied that a substantive legal point has been raised in respect of the appointment of guardian for the minor defendants. Since they were not properly represented in the suit, the ex parte decree cannot be sustained, and is thus liable to be set aside. Accordingly, the appeal is allowed. Anowarul Hoque bing dead his heirs Vs. Mohammad Tafazzal Mondal and others (Civil) 22 ALR (AD) 03
