Appellate Division Cases
(Civil)
PARTIES
Rasheda Begum ………………………………Appellant
-vs-
M.M. Nurussafa and others ……………………Respondents.
JUSTICE
Md. Ruhul Amin. J
M.M. Ruhul Amin. J
Md. Tafazzal Islam. J
JUDGEMENT DATE: 5th May, 2004
Code of civil Procedure 1908 Section 11 & 151. Order 9 Rule 13
Suit is not only barred by res-judicate but also barred because of the settled principle of law that there should be finality of the litigation after adjudication by the superior Court and as such finality so reached cannot be allowed to be re agitated in the subordinate Court for the sake of discipline in the judicial arena ………………….(6)
For the necessity of maintaining discipline in the judicial arena and that also for the sake of certainty of the result obtained in a suit or that for the purpose of termination of a dispute or difference at a certain stage or at certain time, person, who filed the subsequent suit if was a party in the earlier suit and tested the validity of the decree passed in the earlier suit but was unsuccessful, in the said situation he should not be allowed to proceed with the litigation, like the instant one or in other words the subsequent suit where in he figured as plaintiff, so far the same relates to the subject matter of the earlier suit …………………(10)
Civil Appeal No.305 of 2002 (From the Judgment and Order dated January
13, 2002 passed by the High Court Division in Civil Revision No. 2385 of 2001).
Mustafa Neaz Muhammand, instructed by Abu Shiddique, Advocate-on-Record ……….For the Appellant
Rabi Shankar chakraborty, Advocate, (appeared with the leave of the Court) instructed
by A. K. M. Shahidul Huq, Advocate-onrecord …………….For Respondent No. 1.
Respondent Nos. 2-45………………….. Not represented.
JUDGMENT
1. Md. Ruhul Amin, J .– The appeal, by leave, is by the defendant No. 1 against the
judgment and order dated January 13, 2002 of a Division Bench of the High Court Division passed in Civil Revision No. 2385 of 2001 disposing of the Rule obtained there in with the observation that the defendant-petitioner shall be at liberty to file a fresh application under section 11 of the code of civil Procedure on the Point of res-judicata and the trial Court shall frame one of the issues as to whether the suit is barred by res-judicata and will decide the issues after recording evidence of the parties.
2. Facts, in short, are that the appellant as plaintiff filed other class suit No. 37 of 1987
seeking separate shama upon partition of 4.52½ acres of land. The claim for partition and saham was made as one of the legal heirs of late Osiur Rahman. The suit was decreed on 15.5.1989. Two (2) Miscellaneous Cases, Miscellaneous Case No. 41 of 1989 and Miscellaneous case No. 44 of 1989 were filed under order 9 Rule 13 of the Code of Civil Procedure seeking setting aside of the decree passed in the aforesaid suit, but the Miscellaneous Cases were dismissed. The petitioner of the Miscellaneous case No. 44
of 1989 took appeal, Miscellaneous Appeal No. 378 of 1990 to the High Court Division and the same was dismissed on 7.7.1994 . A petition for leave to appeal, Petition for leave to Appeal No. 120 of 1994 was filed before the Appellate Division and the same was dismissed for default on January 21, 1994. Decree in preliminary form passed in other Class Suit No. 37 of 1987 was made final, thereupon Execution Case No. 1 of 1996 was filed . At that stage defendant No. 3 of other Class Suit No. 37 of 1987 filed Miscellaneous Case No. 5 of 1996 under order, 9. Rule 13 of the Code of Civil Procedure seeking setting aside of the decree on the ground of non service of summons upon him.
3. The Miscellaneous case was opposed by the appellant and the same was dismissed being time barred. The said defendant i.e. Respondent No. 1 then filed other Class Suit No. 41 of 2000 (partition) (previously numbered 96 of 1998 ) in the 1st Court of Subordinate Judge (now Joint District Judge), Cox’s Bazar seeking declaration that the judgment and decree dated 15.5.1989 (decree signed on 22.5.1989), in other Class Suit No. 37, 1987 and the final decree dated 9.1.1997 passed in the aforesaid suit be set aside and also prayed for a separate saham in respect of the property described in the ‘ga’ schedule within the ‘kha’ schedule property. The appellant filed an application under order 7, Rule 11 of the Code of Civil Procedure for rejection of the plaint of the other
class suit No. 41 of 2000 primarily stating that the properties of the other Class Suit No. 41 of 2000 and the other Class Suit No. 37 of 1987 are common and the subject matter of the subsequent suit and the issues involved therein are same and similar to that of other Class Suit No. 37 of 1987 and that because of the decree in the other Class Suit No. 37 of 1987 the Suit filed by the plaintiff (Respondent No. 1) is barred by resjudicata.
4. The application so filed was opposed by the Respondent No. 1 (plaintiff of the other
class suit No. 41 of 2000). The learned Subordinate Judge by the order dated January
21, 2001 (order No. 37 dated 21.1.2001.) rejected the application so filed under order 7. Rule 11 of the Code of Civil Procedure upon observing that the land which was the subject matter of the earlier suit and the land which is the subject matter of the present suit are not common and the parties are also not common and the issues of the earlier suit and the issues involved in the instant suit are not common and the caused of action of the earlier suit and the instant suit are not common and that matter that constitute res-judicate are absent and as such the instant suit is not barred by res-judicata.
5. The appellant as against the order of the Court o Joint District Judge moved the High
Court Division in revisional jurisdiction and obtained Rule in Civil Revision No. 2385 of
2001 and the High Court Division dispose of the Rule with the observation as stated hereinbefore. The leave was granted to consider the submissions that the appellant obtained decree in the previously instituted partition Suit No. 37 of 1987 of the Court of Subordinate Judge, Cox’s Bazar admittedly in respect of the “ka’ schedule land of other Class Suit No. 41 of 2000 of the 1st Court of Subordinate Judge and the plaintiff of the instant suit as was the defendant No.3 in the previous suit and as he was unsuccessful up to the Appellate Division in getting the decree passed in the earlier suit set aside, as such the High Court Division erred in law in not rejecting the plaint of the other Class Suit No. 41 of 2000 at leas t with respect of ‘ka’ schedule property of the instant suit, that the High Court Division was in error in not holding that on the averments made in the plaint of
other Class Suit No. 41 of 2000 as the relief prayed for in the schedule “ka’ i.e. seeking setting aside of the preliminary decree as well as the final decree passed in other Class Suit NO. 37 of 1987 , were upheld up to the Appellate Division and as such relief so sought in prayer ‘ka’ of the present Suit No. 41 of 2000 is barred by the principle of res-judicata.
6. The learned Counsel for the appellant submits that undisputed position is that the
Respondent No. 1, plaintiff in the suit, other class Suit No. 41 of 2000, in prayer’ka’ has
prayed for setting aside of the preliminary decree dated 15.5.1989 and the final decree
dated 9.1.1996 passed in other Class Suit No. 37 of 1987. It is also the undisputed position that Respondent No. 1 was defendant No.3 in other class Suit No. 37 of 1987 and he filed the Miscellaneous Case No. 5 of 1996 (under Order 9, Rule 13 of the Code of Civil Procedure) seeking setting aside of the preliminary decree passed in Other Class Suit No. 37 of 1987 and that the same was rejected on the ground of limitation by the trial Court. The order of rejection was maintained up to the Appellate Division. In the background of the said undisputed position the learned Counsel for the appellant submits
that the property which was the subject matter of other class Suit No. 37 of 1987 as has also been made subject matter of the instant suit i.e. Other class suit no . 41 of 2000 and that because of the decree passed in respect of the property which was the subject matter of the Other Class Suit No. 37 of 1987, any subsequent suit is barred by res-judicata. He also submits that decree that was passed in Other Class Suit No. 37 of 1987 having been challenged by the Respondent No.l and as was unsuccessful up to the Appellate Division the instant suit seeking setting aside of decree passed in the earlier suit is not only barred by res-judicate but also barred because of the settled principle of law that there should be finality of the litigation after adjudication by the superior Court and as such finality so reached cannot be allowed to be re agitated in the subordinate Court for the sake of discipline in the judicial arena. The learned Counsel for the appellant submits that plaint so far the same relates to the subject matter of other Class suit No. 37 of 1987 or in other
words relief as sought in the prayer ‘ka’ of the plaint, is liable to be rejected and that the plaint needs to be rejected so far the same, as evidenced by the relief ‘ka’ sought in the suit, relates to the subject matter of the earlier suit i.e. Other Class Suit No. 37 of 1987 to prevent the abuse of the process of the Court. To Substantiate this particular submission the learned Counsel has referred to the case of Guiness peat (Trading) limited Vs. Md. Fazlur Rahman reported in 12 BLD(Ad)247 and the case of Abdul Jalil and others Vs. Islamic Bank Bangladesh Ltd. reported in 20 BLD (AD) 278 where in it has been held that in exceptional cases the Court may recourse to the provision of Section 151 of the Code of Civil Procedure and can reject the plaint .
7. The learned Counsel for the Respondent No. 1 Submits that the question of res-judicate
being a mixed question of fact and law can only be finally decided upon recoding evidence of the parties and as such before recording of evidence a plaint on the plea of res-judicate is not liable to be rejected upon taking the statement made in support of the prayer for rejection of the plaint by the defendant. The learned Counsel in support of the aforesaid submission has referred to the case of Sreemati Pushpa Rani Das and another Vs. A. K. M. Habibur Rahman and others reported in 13 BLD (AD) 217 and the case of Mahbubul Huq Vs. Md. A. Kader Munshi and others reported in 52 DLR, 194.
8. The Respondent No. 1 has filed Other Class Suit No. 41 of 200 seeking primarily 2
relief’s, first prayed for setting aside the decrees, both the preliminary and the final
passed in Other Class Suit No. 37 of 1987 . The land sought to be partitioned in the earlier suit was 4.52V2 acres. In that suit Respondent No.l was the defendant No.3. The Respondent No.l and 2 others who were defendants in the other Class suit No. 37 of 1987 filed Miscellaneous Cases under Order 9 Rule 13 of the Code of Civil Procedure seeking setting aside of the exparte decree passed in the aforesaid suit but were unsuccessful up to the Appellate Division.
9. On going through the materials on record it is apparent that defendants of the earlier suit were all out to deprive the plaintiff of the said suit of the fruit of the decree and that as the last resort has filed the Other Class Suit No. 41 of 2000 seeking the relief primarily by way of setting aside the decrees that were passed in other Class Suit No. 37 of 1987 under the shadow of the relief seeking separate saham in respect of the ‘ga’ schedule land which is part of the land described in the ‘kha’ schedule. It is seen from the materials on record that the land which was the subject matter of Other Class Suit No. 37 of 1987 has also been made subject matter of the Other Class Suit No. 41 of 2000. It is pertinent to mention that none of the defendants of the Other Class Suit No. 37 of 1987 has challenged the final decree passed therein.
10. In Other Class Suit No. 41 of 2000 relief has been sought for setting aside the
decrees that were passed in Other Class Suit No. 37 of 1987, although earlier the Respondent No.l and others initiated proceedings to get the preliminary decree passed in the said suit set aside but they were unsuccessful up to the Appellate Division. In that state of the matter we are of the view that for the necessity of maintaining discipline in the judicial arena and that also for the sake of certainty of the result obtained in a suit or that for the purpose of termination of a dispute or difference at a certain stage or at certain time, person, who filed the subsequent suit if was a party in the earlier suit and tested the validity of the decree passed in the earlier suit but was unsuccessful, in the said
situation he should not be allowed to proceed with the litigation, like the instant one or in
other words the subsequent suit where in he figured as plaintiff, so far the same relates to the subject matter of the earlier suit.
11. It is not disputed from the side of the Respondent No. 1 that the relief sought for in
prayer ‘ka’ of other Class Suit No. 41 of 2000 relates to seeking setting aside of the decrees passed in Other Class Suit No. 37 of 1987. The relief so sought is not legally available since the decree passed in the said suit already reached finality on being challenged by the Respondent No. 1 and others. In the background of the facts stated hereinbefore and the discussions made hereinabove we are of the view that the subsequent suit so far the same relates to the subject matter of the earlier suit i.e. Other Class Suit No. 37 of 1987, should not be allowed to proceed with for preventing abuse of the process of the Court.
12. The law is more or leass settled that matter of rejection of plaint is not confined to
the provision of Order 11 Rule 7 of the Code of Civil Procedure . In a fit or appropriate Case i.e. while the proceeding initial is an abuse of the process of the Court or a contrive to achieve something which the party failed upon proceeding under the law provider for or in any other case akin to cases as mentioned above the Court taking recourse of the provision of section 151 would be competent to reject the plaint or struck out part of the relief prayed for or sought in a subsequent suit.
13. In that view of the matter we are of the opinion continuation of the suit i.e. Other Class Suit No. 41 of 2000 as regared the matter that was an issue in the earlier suit, i.e. Other Class Suit No. 37 of 1987, where in the Respondent No. 1 was a party should not be allowed being an abuse of the process of the Court. The statements made in the plaint of other Class Suit No. 41 of 2000 in support of the prayer ‘ka’ are liable to be struct out and the same are struck out and consequently matter (s) that was the subject mater of Other Class Suit No. 37 of 1987 shall not be the subject matter of the Other Class Suit No. 41 of 2000 and shall also not be a subject matter for adjudication in the Other Class suit No. 41 of 2000. In the result the appeal is allowed with costs.
Ed
Source: I ADC (2004), 210