Begum Lutfunnessa Vs. Md. Shafiullah

Appellate Division Cases

(Civil)

PARTIES

Begum Lutfunnessa ……………………Petitioner

-vs-

Md. Shafiullah and others………………Respondents

JUSTICE

Md. Ruhul Amin, J.

M.M. Ruhul Amin, J.

M.D. Taffzzal Islam, J.

JUDGEMENT DATE: 31st July, 20004

It can altogether be not said that the High Court Division was not justified in sending the suit back on remand though in the absence of any prayer for remand

from the parties in the appeal. This Division has further observed that in a case where right of the parties to the suit send back on remand is depending upon the result of a suit filed earlier but not disposed of, the order of remand made by the Court in the background of the aforesaid situation cannot be considered unjustified……………….. (8)

Civil Review Petition No. 165 of 2003. (From the Judgment and Order dated May 18,2003 passed by the Appellate Division in Civil Appeal No. 77 of 1997)

H.R. Sharif, Advocate, instructed by Md. Aftab Hossain, Advocate-on-record…………….For the Petitioner.

Not represented…………………….. Respondents

JUDGMENT

1. Md Ruhul Amin, J: – This petition for review has been filed against the judgment dated May 18. 2003 drsmissing the “Civil Appeal No. 77 of 1997. The appeal was filed against the judgment and decree dated January 16, 1997 of a Division Bench of the High Court Division passed in First Appeal No. 1 of 1988 allowing the appeal and thereupon sending the suit back to the trial Court for disposal with Title Suit No. 39 of 1933.

2. The first appeal was filed against the judgment and decree dated September 13. 1986 of the 1st Court of Subordinate Judge, Dhaka passed in Title Suit No. 50 of 1984 dismissing the same upon directing the defendant No. 1 to refund Tk. 12. 00,000/- to the plaintiffs and the defendant No.3.

3. Title Suit No. 50 of 1984 was filed seeking decree for specific performance of contract of sale of land claimed to have been entered into by the defendant No. 1 on November 5, 1973 with the plaintiffs and defendant No.3.

4. The suit was contested by the defendant No.l stating, amongst other that the land which is the subject matter of the agreement between flie plaintiffs and the defendant No.l is the subject matter of Title Suit No. 360 of 1979. (later on renumbered as Title Suit No. 39 of 1993) wherein defendant No.l is one of the defendants and thus the said suit being pending there is absence of cause of action and as such the suit of the plaintiffs is liable to be dismissed.

5. The trial Court held that defendant No.3 is a purchaser of the land in suit along with plaintiffs and the said defendant is not the Benamder of the plaintiffs, that the contract between the plaintiffs and the defendant No. 1 has lost its Validity and as such there is no breach of contract on the part of the defendant No.l, that the contract between the plaintiffs and the defendant No.l has been frustrated in view of an order of injunction in Title Suit No. 360 of 1979 restraining the defendant No.l from dealing with property which is the subject matter of the Title Suit No.50 of 1984 and thus defendant No. 1 has been put into impossibility to fulfill the contract, that the plaintiffs at no point of time offered the balance of the consideration money for execution and registration of the sale deed, rather they prayed for extension of time.

6. First appeal filed by the plaintiffs was allowed by the High Court Division upon observing since another suit for specific performance of contract in respect of the land which is the subject matter of the Title Suit No. 50 of 1984 is pending justice would best be met if both the suits i.e. Title Suit No. 50 of 1984 and Title Suit No. 39 of 1993 are tried analogously and thereupon sent back the Title Suit No.50 of 1984 to the Court below for disposal along with the Title Suit No. 39 of 1993.

7. The defendant No.l obtained leave contending that High Court Davison was not at all justified in making the order of remand instead of disposing of the appeal on merit, particularly when the parties before it never made any prayer for remand.

8. This Divison in the background of the facts on the record observed that it can altogether be not said that the High Court Division was not justified in sending the suit back on remand though in the absence of any prayer for remand from the parties in the appeal. This Division has further observed that in a case where right of the parties to the suit send back on remand is depending upon the result of a suit filed earlier but not disposed of. the order of remand made by the Court in the background of the aforesaid situation cannot be considered unjustified.

9. The learned Counsel for the petitioner submits that inspite of the discloser by the defendant No. 1 in his written statement as regard pendency of the Title Suit No.39 of 1993(previously numbered as Title Suit No. 360 of 1979) and also about an order of injunction in the Title Suit No.39 of 1993 restraining the defendant from transferring the land which is the subject matter of both the Title Suits as the plaintiffs proceeded with the suit. Title Suit No.50 of 1984 and got the same adjudicated the High Court Division was in error in sending back the Title Suit No. 50 of 1984 for disposal with the Title Suit No.39 of 1993 in the absence of any new material. The learned Counsel also submits that as the defendant No.l made discloser about the pendency of the Title Suit No.39 of 1993 it was incumbent upon the plaintiffs to apply for analogous hearing of both the suits or to make prayer for withdrawal of his suit with the permission to re-institute the suit after disposal of the Title Suit No. 39 of 1993 and as such the High Court Division ought not to have made the order of remand suo moto. The learned Counsel further submits that this Division as well as the High Court Division in allowing remand against the settled principle of law as regard remand advanced te cause of the plaintiffs who failed to discharge their onus.

10. In the background of our judgment the aforesaid submissions have no merit.

11. The learned Counsel for the petitioner could not point out an error apparent in our judgment which needs correction since continuation thereof would amount to injustice to the petitioner.

12. In the background of the aforesaid discussions we find no substance in the petition.

Accordingly the review petition is dismissed.

Ed.

Source: I ADC (2004), 511

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