Md. Rustom Ullah and others Vs. Md. Zomiruddin and others, 2009

 Supreme Court

Appellate Division

(Civil)

Present:

MM Ruhul Amin CJ

Md. Tafazzul Islam CJ

Md. Abdul Matin J

Md. Abdul Aziz J

Md. Rustom Ullah and others………………………… Petitioners

Vs.            

Md. Zomiruddin and others………………….Respondents

 

Judgment

March 9, 2009.

Cases Referred To-

43 DLR (AD) 78; 1986 BLD (AD) 135.

Lawyers Involved:

Abdur Rab Chowdhury, Senior Advocate, instructed by Chowdhury Md. Jahangir, Advocate-on-Record-For the Petitioners.

S. M. Md. Nurul Huda Jaigirder, Advocate, instructed by Syed Mahbubar Rahman, Advocate-on-Record-For the Respondents.

Civil Petition for Leave to Appeal No.101 of 2008.

(From the judgment and order dated 30.10.2007 passed by the High Court Division in Civil Revision No.3326 of 1998).

Judgment

Md. Tafazzul Islam J. – This petition for leave to appeal is directed against the judgment and order dated 30.10.2007 of the High Court Division passed in Civil Revision No. 3326 of 1998 making the Rule absolute.

2. The respondent No.1, along with oth­ers, filed Title Suit No. 23 of 1993 in the Court of Senior Assistant Judge Madhabpur, Habigonj, for declaration that they are entitled to represent No.4 Digolbak Union Parishad under order 1 Rule 8 of the Code of Civil Procedure, the decision taken by No. 4 Digholbak Union Parishad for constructing perma­nent office of the said union parishad at Nandipur village being legal, valid, bonafide and within jurisdiction is bind­ing on the defendants and the decision taken by defendant Nos.2 and 4 in respect of construction of permanent office of the said union parishad at Kamargaon village is illegal, void, malafide and without jurisdiction and in the above suit they also prayed for a mandatory injunction against the con­cerned defendants to establish perma­nent office of the said union parishad at village Nandipur according to the earlier decision of the said union parishad and they also prayed for an order of per­manent injunction restraining the con­cerned defendants not to construct any permanent office of the said union parishad at Kamargaon village and also prayed for an order of temporary injunc­tion to the above affect till disposal of the suit. In the plaint of the suit it was stated that a meeting of the said No.4 Digholbagh Union Parishad was held on 3.11.1982 for the establishment of a per­manent office of the said union parishad and an unanimous decision was taken by the union parishad to the effect that per­manent office of the union parishad will be constructed at Nandipur village but the then Chairman of the union parishad, for reason best known to him, did not materialize the said unanimous decision and thereafter on 1.8.1985 Nabiganj Upazila Parishad sanctioned fund for the permanent office of the said union parishad and on 16.9.85 another meeting above of the union parishad was held with specific agenda regarding construction of permanent office of the union parishad wherein the previous decision dated 3.11.1982 to establish the permanent office union parishad at Nondipur Village was confirmed and 26.1.86 another meeting was held wherein if was resolved to expedite con­struction of the permanent building of the union parishad at Nandigram village and the parishad issued a copy of the said resolution dated 26.1.2008 to the defendant Nos.1, the upazilla parishad Nabiganj and also the defendant No.4, the Deputy Commissioner Habiganj but the defendant No.2, the Chairman of the Upazilla parishad spent the sanctioned money for the union parishad and when the Chairman of union parishad complained about it before the then Minister for the Local Government Rural Development (LGRD) on 17.2.86, the Minister referred the matter to defen­dant No.4 for necessary action but he, being influenced by the opportunist group, violated the decision of the union parishad and issued memo selecting Kamargaon village as the site for the union parishad office which, being without jurisdiction, subsequently on 2,1.9.88 the concerned Ministry issued a direction to establish the union parishad office at Nandipur village according to the decision of the union parishad. The defendant Nos. 9-12 contested the suit and filed written statement contending that Kamargaon village is situated in the middle of the union dparisha and the road communication of the said village is more developed than Nondipur vil­lage and further Nondipur village is sit­uated at one side of the union and the then Chairman of the union parishad with ill motive, brought a resolution dated 16.9.85 for establishing union parishad office in his own village at Nondipur but Nabiganj Upazila Parishad decided to construct office at Kamargaon village and invited tender on 5.4.86 for the construction of the union parishad office at Kamargaon vil­lage and when a complaint was present­ed before the then Minister for Local Government and Rural Development, he referred the same to defendant No.4, the Deputy Commissioner, Habiganj, and then an investigation was held and on the basis of the same the defendant No.4 gave opinion in favour of constructing the union parishad office at Kamargaon village and thereafter according to the sanction of the Government, Habiganj Zilla Parishad constructed the office of the union parishad at Kamargaon village and directed the Chairman to use the same as office. The trial Court, after hearing, by judgment and decree dated 21.8.1993 decreed the suit. Being aggrieved, the defendants preferred Title Appeal No. 164 of 1993 in the Court of District Judge, Habiganj and the learned Subordinate Judge, 2nd Court, Habiganj, who heard the appeal, by judgment and decree dated 27.7.1998, reversing the judgment and decree passed by the trial Court allowed the appeal and thereby dismissed the suit. The plaintiffs then moved the High Court Division obtained Rule in Civil Revision No. 3376 of 1998 and the High Court Division after hearing made the Rule absolute and thereby decreed the suit.

3. We have heard the learned advocate, and perused the petition, the impugned judgment and order of the High Court Division and other connected papers.

4. As it appears the High Court Division found that the trial Court, on perusal of the circular dated 16.3.1987 of the Ministry of Local Government and rural Development(LGRD), exhibit 8, the report dated 8.6.1988 of the Deputy Commissioner, Habiganj, exhibit-9, and the final decision of the Ministry dated 21.9.88, exhibit 7, found that the defen­dant No.4, the Deputy Commissioner Hobiganj, considering the public inter­est and local convenience gave his opinion to set up the permanent office of the union parishad at Nandipur village on the basis of which the concerned Ministry took final decision to set up the said office at Nondipur village which was has also been admitted by Nazrul Islam Chowdhury, D.W.1, in his cross-examination; further challenging the decision of the Ministry, the defendants earlier filed Title Suit No. 221 of 1988 in the Court of the Senior Assistant Judge, Habiganj which was withdrawn on 31.8.92; there is also nothing on record to show that any decision was taken for setting up of a permanent office of union parishad at Kamargaon village and that the trial Court after perusing all the materials on record, decreed the suit but the appellate court sent the case back on remand to the trial Court on the ground that in the judgment of the trial Court there is no mention as to how the suit was filed under the rep­resentative capacity and by which docu­ment the plaintiffs succeeded in proving their case and how the official papers were procured by the plaintiffs but the Order No.1 of the order sheet shows that permission was given to the plaintiffs to file the suit by the trial Court and after complying with the provisions of law and making public advertisement, the trial started and further the trial Court specifically mentioned the exhibits on which the plaintiffs relied upon and on the basis of which the plaintiffs proved their case. The High Court Division fur­ther found that all the materials connect­ed with the case were on record before the appellate Court and accordingly the points which were to be determined on retrial could have been determined by the appellate Court on considering the materials already on record on the basis of the principles laid down in 43 DLR(AD) 78 and 1986 BLD(AD) 135 and so the appellate Court was not justi­fied in sending the suit back on remand before the trial Court as the queries or the questions which troubled the Court of appeal below were already in the record by way of order sheet, exhibits, and the judgment of the trial Court and the High Court Division in its revisional jurisdiction, on the basis of the materials on record, was competent to come to a decision of its own without sending back the suit on remand to the trial Court and that remand orders are not be made as a matter of course when there is sufficient evidence on record and in the instants case judgment of the trial Court is well reasoned and based on elaborate discussion and supported by evidence, both oral and documentary, and the Court of appeal below failed to reverse those findings by cogent reasoning and further the appellate Court by sending the case back on remand to the trial Court, failed to discharge its responsi­bilities as all the materials were avail­able before it.

5. We are of the view that the High Court Division on proper consideration of the materials on record arrived at a correct decision and there is no illegali­ty or infirmity in the above decision so as to call for any interference.

The petition is dismissed.

Ed.

Source : VII ADC (2010) 541

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