Executive Engineer, Roads and Highways Vs. Naderuzzaman and others, 2007, (HCD)

  Supreme Court

High Court Division

(Civil Revisional Jurisdiction)

Present:

Bijan Kumar Das J

 Executive Engineer, Roads and Highways…………………….Petitioner

Vs.

Naderuzzaman and others…………… Opposite Parties

 Judgment

August 5, 2007.

Cases Referred To-

Zenith Packages Limited vs. Member, Labour Appellate Tribunal 52 DLR (AD) 160; Serajuddin Ahmed vs. AKM Saiful Alam 56 DLR (AD) 41; Chaitanya Biswas vs. Surendra Nath Gharami 2006 LG 131; MJ Kutinha vs. Mrs. Nathal Pinto Bai AIR 1941 Madras 272; Fazle Karim vs. Government of Bangladesh, 48 DLR (AD) 178, AIR 1941 Madras 272 .

Lawyers involved:

Abul Kalam Chowdhury Advocate—For the Petitioner.

Abul Khair, Advocate—For the Opposite Parties.

Civil Revision No. 443 of 2006.

Judgment

Bijan Kumar Das J.- This Rule was issued calling upon the opposite party No. 1 to show cause as to why the impugned judgment and order dated 26-1-2006 passed by the learned Joint District Judge, 2nd Court, Noakhali in Miscellaneous (Review) Case No. 12 of 2005 allowing the review upon reversing the judgment and order dated 21-5-2005 passed by the learned Joint District Judge, 2nd Court, Noakhali dismissing Miscellaneous Appeal No. 21 of 2004 upon affirm­ing the judgment and order dated 7-4-2004 passed by the learned Senior Assistant Judge, Begumgonj, Noakhali rejecting the prayer for temporary injunction in Title Suit No. 94 of 2001 should not be set aside and or pass such other or further order or orders as to this Court may seem fit and proper.

2. The opposite party No. 1 as the plaintiff through his attorney Abul Kashem filed Title Suit No. 94 of 2001 before the learned Senior Assistant Judge, Begumgonj, Noakhali impleading the present petitioner and opposite party Nos. 2-5 as defendants praying for the following relief:

(?) ????? ????? ???? ???? ????? ??????? ??????? ??? ???? ?????? ??? ???????? ????? ?? ??? ??? ????? ???? ????? ?????? ?? ??? ???????? ?????? ???????????? ??? ????? ??????? ?????? ??????? ?????? ??? ????? ??? ???????? mandatory injunction ???? ???: ??????????? ????? ?? ?

? (?) ? ?? ?????? ??/??/???? ?? ??????? ???? ?????? ??-????, ?????? ??????, mala fide & void ?????? ?????? ?????? ????? ???

In the said suit the plaintiff made a prayer for temporary injunction which was rejected by the trial Court on 7-4-04.

3. The plaintiff then preferred Miscellaneous Appeal No. 21 of 2004 before the learned District Judge, Noakhali. The learned Joint District Judge, who heard the said appeal, concurred with the decision of the trial Court and by order dated 21-5-05 dismissed the appeal and affirmed the decision of the trial Court. The plaintiff then preferred Miscellaneous (Review) Case No. 12 of 2005 before the 2nd Court of the learned Joint District Judge, Noakhali. The learned Joint District Judge, 2nd Court, Noakhali upon hearing the parties by the impugned order dated 26-1-06 allowed the review petition, reversed the decision of the appellate Court and the trial Court and allowed the plaintiff’s prayer for tem­porary injunction restraining the defendants 1-5 to lease out the disputed property elsewhere till dis­posal of the original suit.

4. Being aggrieved thereby, the defendant Executive Engineer, Roads and Highways, as peti­tioner, moved this court and obtained the present Rule.

5. Mr. Abul Kalam Chowdhury, the learned Advocate appearing for the petitioner, has placed the impugned order including all other judgments and the supplementary-affidavit and submits that the review application filed under Order XLVII, rule 1 of the Code of Civil Procedure was not entertainable by the learned Joint District Judge. In support of his submission, the learned Advocate has relied on a decision in the case of Zenith Packages Limited vs. Member, Labour Appellate Tribunal Dhaka and others reported in 52 DLR (AD) 160.

6. Mr Abul Khair, the learned Advocate appearing for the opposite party No. 1, submits that in the facts of the case the review application under Order XLVII, rule 1 of the Code of Civil Procedure is very much entertainable and the learned Joint District Judge committed no error of law in allow­ing the review application upon setting aside the judgment and order of the appellate Court including the order of the trial Court. In support of his sub­mission, the learned Advocate has relied on a decision in the case of Serajuddin Ahmed and others vs. AKM Saiful Alam and others reported in 56 DLR (AD) 41 and in the case of Chaitanya Biswas and others vs. Surendra Nath Gharami and others reported in 2006 LG 131 and in the case of MJ Kutinha vs. Mrs Nathal Pinto Bai and another reported in AIR 1941 Madras 272.

7. I have considered the submissions of the learned Advocates and perused the impugned order including the decisions and Order XLVII, rule 1 of the Code of Civil Procedure. In the impugned order, it appears that the learned Joint District Judge reviewed his earlier order on the ground that the relevant rules of the Land Management Manual was not legally applied while deciding the appeal against rejection of the order of temporary injunction. It appears that on the application of one Shahidul Huq, the defendant No. 2 the Executive Engineer of Roads and Highways Department of Noakhali Circle agreed to grant lease of the suit property, which is a road-side property, and consequently entered into an agreement to grant lease for the pur­pose of setting up of the petrol pump. The said Shahidul Huq made a prayer to aforesaid defendant No. 2 for transfer of the settlement in favour of the plaintiff, which was ultimately allowed and the defendant No. 2 by his office letter dated 11-12-95 accorded permission to the plaintiff asking the plain­tiff to enter into a fresh contract with the depart­ment. Accordingly, the plaintiff and the defendant No. 2 entered into a new agreement with the same terms and conditions on 31-8-96 and the plaintiff was given delivery of possession of the suit property and he improved the land by filling earth at cost of about Taka 15,00,000 and also built approach road and brought construction materials to build the petrol pump. Both the trial Court and the lower appellate Court refused the prayer for temporary injunction on the ground that the lease granted in favour of the plaintiff was not in compliance with the legal requirements.

8. The court of review noticed: “Now the only question arises to consider is, as to whether any prior approval was necessary from the Department.” The learned Joint District Judge then applying rules 256 and 257 of Land Management Manual found that approval from the Roads and Highways Depart­ment would be necessary for non-agricultural purpose. Having taking such a view, the learned Joint District Judge allowed the review of the courts below and allowed the prayer for temporary injunction. The question which needs consideration is, whether non-application of law or wrong appli­cation of law would be a ground for review of an order by the court. Our Appellate Division in 52 DLR (AD) 160 had taken a view that “A wrong decision on interpretation of certain provision of law or principle laid down in a decision relied upon by a court are no grounds for review”. “On consi­deration of Order XLVII, rule 1 of the Code of Civil Procedure, I am of the view that a wrong application of law or non-application of law by a court, whether original or appellate, is no ground to apply Order XLVII, rule 1 of the Code of Civil Procedure. If such an interpretation is given to Order XLVII, rule 1 of the Code of Civil Procedure, there shall arise various complications and the Courts will be bur­dened with review applications without availing proper legal remedy as provided by the concerned laws. In that view of the matter, I do not find that the learned Joint District Judge committed an error of law in allowing the review application which has resulted in an error in the impugned decision occasioning failure of justice. In 56 DLR (AD) 41 our Appellate Division has taken a view that there is nothing in Article 102 of the Constitution to preclude the High Court Division from exercising the power of review. The facts are quite distinguish­able. This decision has no manner of application in the present case. In 3 LG 131 “An application for review is not encouraged and unless it comes squarely within the language and spirit of rule 1, it is not considered.” In the case of Fazle Karirh vs Government of Bangladesh 48 DLR (AD) 178, it has been clearly stated at paragraph 7 of the said decision, that “unless a prayer for review is based on the grounds mentioned in rule 1 of Order XLVII of the Code, the Court will not sit on the matter again for a rehearing or further hearing which is already concluded by a decision even if that be erroneous.” The said decision has no manner of application in the present case. The facts of decision reported in AIR 1941 Madras 272 are quite distinguishable and have no manner of application in the present case. Further, the said decision relates to Madras Village Act and thus is not applicable in the present case. In that view of the matter, the impugned decision suffers from illegality and infirmity calling for interference by this court in this revisional jurisdiction.

9. In the result this Rule is made absolute without any order as to costs. The impugned judg­ment and order dated 26-1-06 passed by the learned Joint District Judge, 2nd Court, Noakhali in Miscel­laneous (Review) Case No. 12 of 2005 is hereby set aside and those dated 21-5-05 passed by the 2nd Court of the Joint District Judge, Noakhali in Miscellaneous Appeal No. 21 of 2004 affirming the judgment and order dated 7-4-04 passed by the learned Senior Assistant Judge, Begumgonj, Noakhali in Title Suit No. 94 of 2001 is restored.

10. The order of stay as granted at the time of the issuance of the Rule and extended subsequently is vacated.

Send down the lower court records.

Ed.

Source : 59 DLR (2007) 637

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