Mohammad Fazlul Karim J
Md. Joynul Abedin J
Shah Abu Nayeem Mominur Rahman J
M/S. Classic Fashion Limited.……..Petitioner
Mrs. Asrafunnessa Dana and another……….Respondents
March 15, 2009.
A. J. Mohammad Ali, Senior Advocate, instructed by Mr. Md. Nawab Ali, Advocate-on-Record-For the Petitioner.
Nurul Islam Bhuiyan, Advocate-on-Record- For Respondent No.2.
Not represented- Respondent No.1.
Civil Petition For Leave To Appeal No. 29 Of 2007.
(From the judgment and order dated the 24th day of July, 2006 passed by the High Court Division in First Appeal No.562 of 2000).
Mohammad Fazlul Karim J.- This application under Article 103 of the Constitution of the People’s Republic of Bangladesh is directed against the judgment and order dated 24.07.2006 passed by the High Court Division in First Appeal No.562 of 2000 affirming with modification of the judgment and decree dated 04.05.2000 of the then Subordinate Judge (now Joint District Judge), 5th Court, Dhaka in Money Suit No.72 of 1995 decreeing the suit.
2. The facts involved in the case, in short are that the plaintiff is the owner of the premises at 35/11 Shantigangar, Dhaka; that the defendant No1. entered into the said premises on 01.02.1987 as an ordinary ejectable monthly tenant under the plaintiff on condition to pay rent of TK.23,248.00 per month within 7 days of the month for which it is due for use and occupation of 2818 square feet in ground floor, 2818 square feet in the first floor and 2818 square feet in 2nd floor with right of easement in the stair; that the defendant did not pay rent for the period from May, 1989 to September, 1989 and from March, 1990 till date and the plaintiff brought a suit being Title Suit No.1 of 1994 in the 1st Court of Subordinate Judge, Dhaka for realization of rent with compensation and other reliefs, which is pending; that the defendant also did not pay rent for the period from January to September, 1995 amounting to total TK.13,25,136.00; that the defendant did not clear up the said dues despite repeated requests and hence the suit.
3. The defendant contested the suit filing written statement denying all the material allegations contending, inter alia, that the defendant company entered into an agreement on 02.02.1987 with the plaintiff fixing monthly rent of TK.23,248.00 for the suit premises. Subsequently, the defendant was dispossessed by the plaintiff from some portion of suit premises, as a result, his monthly rent was reduced to TK.18,664.00. The defendant also deposited TK.1,20,000.00 as security money to the plaintiff to be adjusted against the rent as per terms of the contract. The dispute between the parties could be solved through arbitration, but the plaintiff without following the said terms of contract instituted the false suit which is liable to be dismissed as also time barred. On the other hand the added defendant No.2 Islami Bank also contested the suit contending that the defendant No.1 took loan from the defendant No.2 and as per terms of the contract the defendant No.1 failed to repay the loan in time, as a result, the properties including machinery lying in the suit premises legally belong to defendant No.2, Islami Bank and as such, the attached property by the Court need to be released in favour of the Bank.
4. Mr. A. J. Mohammad Ali, learned Counsel, appearing for the petitioner submitted that the High Court Division committed an error in holding that the suit is not barred by limitation in view of continuous default in payment of rent and the principle set out in Section 23 of Limitation Act and that fresh period of limitation begins to run at every moment of time during such breach of contract without considering the settled principle that the period for recovery of arrear rent having been fixed by Article 110 of schedule I of the Limitation Act at 3 years from the date it is due, the suit was to be filed within 3 years from the date of cause of action else a suit could be filed claiming arrear rent, if any, for three years preceding the date of filing of the suit and in view of framing of the instant suit it is barred by limitation.
5. In view of the above, the submissions of the learned Counsel deserve consideration.
Accordingly, Leave is granted.
Security of TK.1000.00 is to be deposited with one month from date.
Preparation of paper book is dispensed with as prayed for.