Restoration Under Section 151 CPC May Be Available, but an Application Is Not Maintainable Without Proof of Special Circumstances: High Court
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| Supreme Court of Bangladesh |
The ruling was delivered on 9 September 2026 by Justice Md. Riaz Uddin Khan in Civil Revision No. 4894 of 2022, Azizul Haque v. Abdul Gafur and Others. The case was filed under Section 115(4) of the CPC. The full judgment was published on the Supreme Court’s website on 18 October 2026.
Background
In a partition suit in Kishoreganj, a preliminary decree was passed in the absence of the defendants. The defendants then filed a miscellaneous case under Order IX, Rule 13 challenging the decree. However, as they were absent from the court at the time of hearing, the miscellaneous case was dismissed for default.
Subsequently, they filed an application under Section 151 of the CPC seeking to set aside the dismissal order and restore the miscellaneous case. The Assistant Judge allowed the application upon payment of costs of Tk 2,000. After the costs were deposited, the court also set aside the ex parte decree and restored the partition suit to its original number.
The plaintiff challenged the order in revision. The Additional District Judge, Kishoreganj, allowed the revision and set aside the trial court’s order. The defendants then filed a revision petition before the High Court.
Court’s Observations
Justice Md. Riaz Uddin Khan observed that an appeal is generally available against the dismissal of a miscellaneous case for default. Under Order XLIII, Rule 1(d) of the CPC, such an order may be challenged by way of appeal.
Referring to the Appellate Division’s decision in Abdul Kader Chowdhury v. Nurul Islam and Others, the court said that an appeal lies under Order XLIII, Rule 1(d) against an order dismissing a miscellaneous case for default.
However, this does not mean that the application of Section 151 of the CPC is completely barred in all circumstances. In extremely rare and special circumstances, the court may exercise its inherent power.
Section 151 Was Not Applicable in This Case
The High Court found that the applicant had failed to properly pursue the case. He was absent from the court at the time of hearing and also failed to pay the costs within the prescribed time. As a result, he could not demonstrate any special circumstances justifying the exercise of the court’s inherent power under Section 151.
The court further observed that, for interference under Section 115(4) of the CPC, there must be an error by the lower court on an important question of law that has resulted in a failure of justice. No such error was found in the present case.
Order
Finding no merit in the rule, the High Court discharged it. The interim order previously issued was also recalled, and no order was made as to costs.
Legal Takeaway
The key lesson of the judgment is that although Section 151 of the CPC is a source of the court’s inherent power, it is not an alternative avenue of appeal. In cases involving the dismissal for default of a miscellaneous case under Order IX, Rule 13, an appeal is generally available under Order XLIII, Rule 1(d). However, the power under Section 151 may still be exercised in truly special and exceptional circumstances.
