Bangladesh Mukti Joddah Kalyan Trust and others Vs. Sree Sree Luxmi Janardhan Jew Thakur & ors

Appellate Division Cases

(Civil)

PARTIES

Government of Bangladesh and ors……………….. Appellants

(In C. A. No. 46 of 999) Bangladesh Mukti Joddah Kalyan Trust and others……………… Appellants (In C. A. No. 47 of 1999)

-vs-

Sree Sree Luxmi Janardhan Jew Thakur & ors………………….Respondent

(In both the appeals)

JUSTICE

Latifur Rahman, C . J

Mahmudul Amin Choudhury.J

Kazi Ebadul Hoque. J

JUDGEMENT DATE : 10th December 2000

Principle of resjudicata under section 11 of the Code is applicable in a writ proceeding as the same is also a Civil proceeding

Contention has been raised as to whether Writ Petition No. 4127 of 1992 was barred by principle of constructive res-judicator in view of the refusal of the High Court division in writ Petition No. 798 of 1999 to issue rule as to the legality of sale deed dated 9.11.1989 (annexure-M) . Explanation V to section 11 of the code of Procedure is as follows: ” Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.” ……………………..(12

Civil Appeal Nos. 46 & 47 of 1999 (From the Judgment and order dated 25.3.1998 passed by the High Court Division in Writ Petition No. 4127 of 1992).

Mahmudul Islam, Attorney General, instructed by S. B. Barua, Advocate-on Record …………For the Appellants (In C. A. No 46 of 1999).

A. F. Hasan Arif, Advocate, instructed by sharif Uddin Chaklader, Advocate-on-Record …………..For the Appellants (In C. A. No. 47 of 1999.

M. I. Faroquei, Advocate, instructed by M. G. Bhuiyan, Advocate-on-Record. Respondent Nos. 1-4 (In both the appeals)

Not represented… Respondent Nos. 59 (In C. A. No. 46 of 1999.

M. G. Bhuiyan, Advocate-on-Record, Respondent Nos. 1-4 (In both the appeals)

Not represented. Respondent Nos. 5-7

(inC.A. No. 47 of 1999)

JUDGMENT

1. Kaziebadul Hoque, J :- These two appeals by leave arise from judgment and order dated 25.3.1998 passed by a Division Bench of the High Court Division in Writ Petition No. 4127 of 1992 making the rule absolute.

2. M/S Hardeo Glass, Aluminum, Enamel and Silicate Works is situated in the disputed

land and premises and as the owners of the said factory and premises left for India, the same was declared as enmity property by notification dated 6.10.1965 and the same was taken over for management by the East Pakistan Small and Cottage Industries Corporation by Notification Dated 8.10.1965 and after the liberation of the country the same was made over to the Bangladesh Muktijoddah Kalyan Trust, the appellant No.l of Civil Appeal No . 47 of 1999 by an agreement dated 28.2.1978. Writ petitioner

respondents claimed that the premises in which the said factory is situated was let out to

the previous owners of the said factory as monthly eject able tenets and they are the owners of the land and structures standing thereon.

3. On 27.5.1981 a notice was published in the Daily Sangbad inviting tenders by

27.6.1981 for sale of the said property by auction. Challenging the said notice writ petitioner respondents filed Writ petition No. 480 of 1981 on the allegation that they are owners of the land and structures and owners of M/S Hardeo Glass Works were monthly tenants in the said premises and rule was issued in that writ petition on 23.6.1981 calling upon the appellants of the two appeals to show cause as to why the said notice for sale of the said property should not be declared to have been made without any lawful authority and of no legal effect. That rule was ultimately disposed of as anfractuous by judgment dated 14.1.1982 in view of the assurance given by respondent No. 6 of that writ petition in his supplementary affidavit dated 11.1.1982 Subsequently another notification for

sale of the structures of the said factory was published on 20.3.1990 after sale of the disputed property by sale deed dated 9.11.1989 by the Government of Bangladesh, appellant No.l, of Civil Appeal No. 46 of 1999 to the appellant No. 1 of Civil Appeal No. 47 of 1999. Challenging the said sale deed dated 9.11.1989 (annexure-M) and notification dated 20.3.1990 (annexure-N) writ petitioner respondents filed Writ Petition No. 789 of 1990 and on 23.4.1990 and rule was issued calling upon the appellants

of the two appeals to shflw cause as to why notification dated 20.3.1990 (annexure-N) should not be declared to have been made without any lawful authority and of no legal effect. But no rule was issued as to the legality of sale deed dated 9.11.1989 (annexure-M). The said rule was contested by the appellants of both the appeals. By judgment dated 1.12.1992 that rule was discharged. Thereafter writ petitioner respondents filed writ petition No . 4127 of 1992 and on 6.1.1993 rule was issued in that writ petition calling upon the appellants of the two appeals to show cause as to why sale deed executed by appellant No. 1 of Civil Appeal No. 46 of 1999 fn favour of appellant No. 1 of Civil

Appeal No. 47 of 1999 (annexure-M) should not be declared to have been made without any lawful authority and of no legal effect. In that writ petition writ petitioner respondents claimed that they are owners of the disputed premises as deities on the basis of a deed of gift and the previous owners of the Hardeo Glass, Aluminum, enamel and Silicate works were eject able monthly tenants therein, Appellants of both the appeals contested the said rule by filing separate affidavits in opposition denying respondents claim that they are the owners of the said land and premises and the appellants or

the previous owners of the said factory are or were eject able monthly tenants there in and

further asserting that the previous owners were and the appellants are non agricultural tenants under the writ petitioner respondents and in the compromise decree passed in Title Suit No. 36 of 1955 of the 6t h Court of Munsif, Dhaka on 11.8.1958 on the basis of a petition of compromise filed by the writ petitioner respondents as plaintiffs and previous owners of the said factory as defendants the previous owner were admitted as non agricultural tenants therein. Respondents denied the allegations and assertions made in the affidavits-in-opposition by filing affidavits-in-reply.

4. By the impugned judgment dated 23.3.1998 High Court Division made the rule

absolute in Writ petition No. 4127 of 1992. Aggrieved by the same respondent Nos. 13

of the said writ petition field Civil Petition for leave to appeal No. 789 of 1998 and the respondent Nos. 4 and 5 of that writ petition filed civil petition for leave to appeal No. 810 of 1998. Leave was granted in C. P. No. 789 of 1998 to consider the submissions of the learned Attorney General that the definite case of the appellants being that the owners of Hardeo Glass Factory were non agricultural tenants of the disputed property which became enemy property as the said owners left for India, the High Court Division committed error of law in not adverting to and deciding on the plea of the respondents that the disputed property was held by Todis as non agricultural tenants and that the

land also vested in the Government. He next submits that the High Court division was wrong in not taking into consideration the fact that in terms of the compromise decree passed in Title Suit No. 36 of 1955 the Todies were non agricultural tenants of the disputed property and not monthly tenants.

5. Leave was also granted in C. P. No. 810 of 1998 to consider the submission of Mr. A. F. Hasan Arif learned Advocate that he specifically argued before the High Court Division that the respondent owners of the Hardo Glass Factory were non agricultural tenants of the disputed property but the said argument was not reflected in the judgment. He further submits that the learned judges of the High Court Division did not consider that the instant writ petition is barred by constructive res-judicata in view of earlier writ petition No. 798 of 1990 between the parties.

6. Learned Attorney General relying on the order sheet of title Suit No. 36 of 1955 and

compromise petition filed therein by the parties submitted that respondents admitted the predecessor-on-interest of appellants i.e the then owners of Hardo Glass, Aluminum. Enamel and Silicate Works as non-agricultural tenants in the in the lands of the respondents and the High Court Division acted illegally in not considering the said documents though filed as annexure to the affidavits in opposition filed by the appellants of both the appeals and as such acted illegally in making the rule absolute . He further submitted that in view of the fact that no rule was issued in W. P. No. 798 of 1990 in respect of the prayer of the respondents challenging the sale deed dated 9.11.1989

W. P No. 4127 of 1992 challenging the self same deed is barred by the principles of constructive resjudicata.

7. On the other hand learned Advocate for the respondents relying on the gift deed, C. S.

and S. A. khatinas rent receipts, municipals receipts submitted that the owners of the said factory were eject able monthly tenants in the debut tar property of the respondents and there is nothing to show that the said owners were non agricultural tenants in the said property. He further submitted that there is nothing to show from the order sheet and compromise petition filed in Title Suit No. 36 of 1955 that the writ petitioner respondents were plaintiffs in that suit and as such the solenama filed that as there was no issue about the legality of sale deed in question in W. P. No. 798 of 1990 subsequent W. P. No. 4127 of 1992 was not barred by resjudicate.

8. It appears from the impugned judgment that the learned Judges of the High Court Division noted the assertion of the appellants that the original tenants constructed the structures in the disputed land as non-agricultural but did not decide the question as to whether the original tenants were non-agricultural tenants as claimed by the appellants or monthly ejectable tenants as claimed by the writ petitioner respondents. Though the order sheet of and compromise petition in S. T. No. 36 of 1955 were filed as annexure with the affidavits in opposition filed by the appellants and in the affidavits in reply respondents stated that they did not filed any such suit or any compromise petition therein High Court Division ought to have considered the contentions of the parties but acted illegally in not deciding the same. As the High Court Division failed to decide such vital question leave was granted to consider the same. To meet the objection of the learned advocate of

the writ petitioner respondents that they were not plaintiffs in T.S. No. 36 of 1955 learned

Attorney prayed for time and time was allowed to him to produce the certified copy of the plaint and /or relevant page of the suit register concerned to show that the writ petitioner respondents were plaintiffs in that suit. But on the date of pronouncement of judgment learned Attorney General informed us that he could not obtain certified copy of the plaint and/or relevant page of the concerned suit register as the same are missing. So it is difficult to decide the question in the absence of those documents.

9. But in the connection it is pertinent to refer to the judgment of the High Court

Division passed in Writ Petition No. 480 of 1981 filed by the writ petitioner respondents

challenging the notice dated 27.5.81 for sale of the disputed property by the appellant No. 1 of  Civil Appeal No. 46 of 1999. That writ petition was disposed of by judgment dated 14.1.1982 by the High Court Division on the basis of assurance given by the appellant No. 2 of Civil Appeal No. 47 of 1999 (respondent No. 6 of Writ Petition No. 480 of 1981) in paragraph Nos. 5, 6, 7 and 9 of the supplementary affidavit sworn on 11.1.1982 where in it was stated that writ petitioner respondents leased out the disputed land to the Toddis and they are entitled to receive rent for the land ony. Relevant paragraph Nos. 5, 6, 7 & 9 of supplementary affidavit sworn on 11.1.1982 are as follows: “5 That the petitioner are entitled to receive rent of the said land from the party to whom the industry might be sold.” “6. That the petitioners leased out the land to Sree hardeo Gonesh todi, as

stated by them at paragraph 7 of the petition who established a factory of the said ndustry Hardeo Glass, Alumunium enamel and Silicate Works Ltd.” “7. That the petitioner used to get rent from the said tenant also from the subsequent managements after the industry

become enemy property and the petitioner had not disputed the subsequent change of hands including the management of the Freedom fighters Welfare Trust which organization is also paying rents for the lands of the petitioner. So there is no reason for any doubt that they will not get the rent from any other person as to whom the industry concerned may be transferred by the Government.” “9. That the deponent however ssures

that the owner of the land will be entitled to rent of the from the buyers as before as modified between the parties.”

10. Relevant portion of the said judgment dated 14.1.1982 is as follows: ” In view of the

assurance given by respondent No. 6 as contained in his supplementary affidavit sworn on January 11, 1982 that the proposed sale by is investment will be without prejudice to the existing right, title and interest of the petitioners, the learned Counsel for the petitioners submits that he has no further grievance to make against the impugned advertisement.” In view of the above it does not now lie in the mouth of the writ petitioner respondents to say that the appellants are not non-agricultural tenants of

the disputed land but are ejectable monthly tenants therein.

11. After disposal of Writ Petition No. 480 of 1981 appellant No. 1 of Civil Appeal No . 46 of 1999 transferred the said property by sale deed dated 9.11.1989 to the appellant No.l of Civil Appeal No. 47 of 1999.Thereafter by notification dated 20.3.1990 structures on the disputed property was sought to be sold by auction. Challenging the sale deed dated 9.11.1989 (annexure-M) and notification dated 20.3.1990 (annexure-N) writ petitioner respondents filed Writ Petition No. 798 of 1990. On 20.4.1990 a Division Bench of the High Court Division issued rule nisi in that writ petition calling upon the appellants of both the appeals why notification dated 20.3.1990 (annexure-N) should not

be declared to have been made without any lawful authority and why the said notification

should not be cancelled, rescinded or withdraw. But no rule was issued in that writ petition in respect of the sale deed dated 9.11.1989 (annexure-M). By judgment and order dated 1.12.1992 the rule in the said writ petition was discharged. Thereafter writ petitioner respondent filed Writ petition No. 4127 of 1992 again challenging

sale deed dated 9.11.1989 (Annexure-M) In the said writ petition the rule was issued on

6.1.1993 calling upon the appellants of both appeals to show cause as to why execution of sale deed and transfer of the property of respondent duties should not be declared to have been made without any lawful authority and of no legal effect. In the said writ petition writ petitioner respondents claimed that they are owners of the property in question and the appellants of both appeals are monthly ejectable tenants therein. By filing separate affidavits in opposition appellants of both the appeals denied the

allegations and asserted that the owners of Hardeo Glass, Alumunium, enamel and Silicate Works were non agricultural tenants under the writ petitioner respondent and in the solenama filed in Title Suit No. 36 of 1955 writ petitioner respondents admitted them as non agricultural tenants in the disputed property.

12. Contention has been raised as to whether Writ Petition No. 4127 of 1992 was

barred by principle of constructive res-judicator in view of the refusal of the High Court division in writ Petition No. 798 of 1999 to issue rule as to the legality of sale deed dated 9.11.1989 (annexure-M) Explanation V to section 11 of the code of Procedure is as follows: ” Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.”

13. It appears from judgment dated 1.12.1992 passed by the High Court Division in

Writ petition No. 798 of 1990 that the said court observed as follows regarding the prayer in respect of the sale deed dated 9.11.1989. “It is apparent that the petitioners had impugned both annexure -M the sale deed and the notification annexure-N for the sale of structures. However this court on 23rd April, 1990 was pleased to issues a rule nisi calling upon the respondents to show cause as to why the impugned notification Har/BA 22(I)/89-90/113 dated 20/3/1990 (sic) as per annexure-N issued by respondent No. 4

should not be declared to have been made without any lawful authority and to be of no legal effect and or why the respondents should not be directed to cancel, rescind or withdraw the impugned notification. We, therefore, find that the rule was issued only in respect of the notification as published in Bangladesh Observer on 24.3.1990″.

14. Thus it is clear that sale deed dated 9.11.1989 was challenged in that Writ Petition

No. 798 of 1990 but no rule was issued in respect of the said sale deed and as such relief

claimed by the writ petitioner respondents in respect of the said sale deed in that writ petition was not granted by the High Court Division at the initial stage of issuing the rule and as such the reify against the said sale deed shall be deemed to have been refused for the purpose of section 11 of the Code of Civil Procedure. So the writ petitioner respondents can not seek relief against the said sale deed dated 9.11.1989 by filing another Writ Petition No. 4127 of 1992. Principle of resjudicata under section 11

of the code is applicable in a writ proceeding as the same is also a civil proceeding. We are, therefore, of the view that relief claimed in writ Petition No. 4127 of 1992 filed by the writ petitioner respondents against the appellants of both the appeals was barred by the principle of constructive resjudicata for implied refusal of their claim in respect of the self same sale deed dated 9.1.1989 in Writ Petition No. 798 of 1990. Moreover after disposal of Writ Petition No. 480 of 1981 by judgment dated 14.1.1982 on the basis of assurance given in the supplementary affidavit sworn on 11.1.1982 respondents cannot claim that they are the owners of the lands and structures of Hardeo Glass, Aluminum Enamel and Silicate Works and the previous owners of the said factory and the appellants of the two appeals were and are eject able monthly tenants under them. Hence the

impugned judgment cannot be sustained in law and is liable to be set aside. In the result both the appeals are allowed without any order as to cost and impugned judgment of the High Court Division is set aside.

Ed

Source: I ADC (2004), 149