Abdur Rahman Vs. Jan Bibi and others

Appellate Division Cases

(Civil)

PARTIES

Abdur Rahman. ………………Petitioner

-Vs-

Jan Bibi and others……………….. Respondents

JUSTICES

Md. Ruhul Amin J

M.M. Ruhul Amin J

Judgment Dated: 5th November 2006

The Code of Civil Procedure, Order 39, Rules 1 and 2

Allowing an application for injunction restraining the opposite party No.2 from making construction of any house in the land in suit and not to change the nature and character of the property in suit…………………. (1)

The petitioner in the civil revision case having had the notice that order of injunction obtained by him for limited period had expired, she then filed an application seeking fresh order of injunction restraining the defendant No.2. The High Court Division upon hearing the parties by the order dated August 16, 2005 allowed the prayer for injunction restraining the opposite party No.2 from making any structure in the land in suit and from changing the nature and character of the land in suit. ………………….(7)

Md. Nawub Ali, Advocate-on-record …………………….For the Petitioner

Respondents ………………Not represented.

Civil Petition For Leave To Appeal No. 1166 of 2005

(From the Judgment and Order dated August 16. 2005 passed by the High Court Division in Civil Revision No.326 of 2004)

JUDGMENT

Md. Ruhul Amin J : This petition for leave to appeal is directed against the order dated August 16, 2005 of a Single Bench of the High Court Division in Civil Revision No.326 of 2004 allowing an application for injunction restraining the opposite party No.2 from making construction of any house in the land in suit and not to change the nature and character of the property in suit.

2. The civil Revision has been filed aeainst the judgment and order dated November 22. 2003 of the Court of Joint District Judee, Chittagong in Miscellaneous Appeal No.n l of 2003 affirming the judgment and order dated August 26, 2003 of the Court of Assistant

Judse. Mirsharai. Chittagong in Partition SuUNo.41 of 2003.

3. The suit was filed seeking a decree for partition of the land described in the schedule as well as for a decree of permanent injunction in respect of the land described in schedule l(ka). The plaintiff upon instituting the aforementioned suit filed an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure seeking injunction against the defendant Nos.l and 2.

4. It was the case of the plaintiff that his father Sirajul Islam was the owner of 31decimals of land and said Sirajul Islam died leaving 2 sons and 2 daughters, that plaintiff is the daughter of Sirajul Islam, that her brothers have sold their shares to different persons, that plaintiff is in possession of the Land described in schedule l(ka). that defendants recently threatened the plaintiff to take possession of the Land in suit forcibly and that being apprehensive of dispossession she is constrained to file application seeking an order of injunction for restraining the defendants from dispossessing her from the land in suit.

5. The prayer for injunction was opposed by the defendant No.2. The learned Assistant Judge upon hearing the parties rejected the prayer for injunction. As against the order of the Court of Assistant Judge plaintiff went on appeal. The appellate Court dismissed the appeal and thereby affirmed the order of the Court of Assistant Judge passed on 26.8.2003.

6. The plaintiff moved the High Court Division in revisional jurisdiction against the judgment of the appellate Court passed in Miscellaneous Appeal No.171 of 2003 and obtained Rule on January 24, 2004. The High Court Division at the time of issuance of Rule passed an order of injunction restraining the defendant No.2 from erecting any structure in the land in suit and from changing the nature and character of the land in suit. While the Rule obtained by the plaintiff-petitioner was awaiting disposal then from the side of the opposite party an application was filed for vacating the order of injunction

and when the said application came up for hearing before the Court it was noticed by the Court that the order of injunction passed earlier for limited time had expired on July 21, 2001. In that state of the matter the Court did not pass any order on the application filed with the prayer for vacating the order of injunction passed for limited period at the time of issuance of the Rule.

7. The petitioner in the civil revision case having had the notice that order of injunction obtained by him for limited period had expired, she then filed an application seeking fresh order of injunction restraining the defendant No.2. The High Court Division upon hearing the parties by the order dated August 16, 2005 allowed the prayer for injunction restraining the opposite party No.2 from making any structure in the land in suit and from changing the nature and character of the land in suit.

8. As against the aforesaid order of the High Court Division this petition for leave to appeal has been filed.

9. We have heard the learned Advocateon-record and upon perusal of the materials

on record we are of the view that the High Court Division has committed no error in passing the order of injunction restraining the petitioner herein from making any construction in the land In suit as well as not to change the nature and character of the land in suit and as such no interference is called for.

10. Accordingly the petition is dismissed.

Source : V ADC (2008),576