Fulbaria Adrasha Market Dokandar Malik Samity & anr Vs. Fulbaraia Adrasha Market Khatigrastha Dokandar Kallyan Samabay Samity Limited and others

Appellate Division Cases

(Civil)

PARTIES

Fulbaria Adrasha Market Dokandar Malik Samity & anr …………………….. Petitioners (In. C. P. No.392 of 2005) Dhaka Mhanagari Fulbaria Dokandar Howkers Samity, represented by its President Md. ShahJahan Petitioner (In C. P. No.523 of 2005 )

Vs

Fulbaraia Adrasha Market Khatigrastha Dokandar Kallyan Samabay Samity Limited and others

JUDGES

Syed J. R. Mudassir Husain CJ

Mohammad FazlulJ

Amirul Kabir Chowdhury J

Order Respondents (In 25th May 2005 both the petitions)

The Code of Civil Procedure Order 39 Rules 1 and 2, Section 115(1)

Order of mandatory in junction is very sparingly allowed. It can be granted if any body is dispossessed in violation of the order of injunction but in the instant case there was no order of status quo as alleged by the plaintiffs and that the plaintiff respondents having been evicted by the law enforcing agency at the instance of Dhaka City Corporation, the lawful owner of the property, and that the plaintiff respondents having not been evicted in violation of courts order/ or any order of injunction or status quo, the High Court Division erred in affirming the order of mandatory injunction passed by the trial court (5)

Before ascrtaining any title or possession of the plaintiff respondents the learned Assistant Judge committed serious illegality in allowing the application for mandatory injunction directing the respondent petitioners to hand over possession of the suit property which they have been possessing for long time on the basis of legal document executed by the Dhaka City Corporation. (10)

ADVOCATES

A.F. Hassan Ariff, Senior Advocate, (Mahbubey Alam Senior Advocate with him) instructed by Chowdhury Md. Zahanzir, Advocate-On-Record For the Petitioners( in C. P. No. 392 of 2005) Mainul Hosain, Senior Advocate , instructed by Syed Mahbubur Rahman, Advocate-onrecord For the Petitioner (In C. P. No. 523 of 2005)T.H. Khan, Senior Advocate, (Abvdul Quayum, Senior Advocate with him) instructed by Md. Nawab AH, Advocate-on-Record. For Respondent Nos. 1 to 3 (In C. P. No. 392 of 2005) Khandaker Mahbubuddin Ahmed, Senior Advocate, (M.A. Baqui, Advocate with him) instructed by Serajur Rahman, Advocate-on-Record Respondent No.4 ( In C. P. No. 392 of 2005) T.H. Khan, Senior Advocate, (Abdul Quayum, Senior Advocate with him) instructed by Firoz Shah, Advocate-on-Record. For Respondent No. 6 ( In C. P. No. 523 of 2005) Not represented—- Respondent Nos. 5 and 6 (In C. P. No. 392 of 2005) Not represented Respondent Nos. 1-5,7and 8 (InC. P. No. 523 of 2005)

ORDER

Amirul Kabir Chowdhury J : Civil Petition for Leave to Appeal No. 392 of 2005 has been filed by Fulbaria Adrasha Market Dokandar Malik Samity and its General Secretary against judgment dated 16.03.2005 passed by the High Court Division in Civil Revision No. 5933 of 2001 discharging the rule and thereby affirming the order No. 30 dated 30.10.2001 passed by the learned Senior Assistant Judge 4th Court, Dhaka in Title Suit

No. 115 of 1998 allowing an application for mandatory injunction and directing the plaintiff petitioners to hand over possession of the suit land to the plaintiff respondent Nos. 1 and 2.

2. Civil Petition for Leave to Appeal No. 523 of 2005 has been filed by Dhaka Mahanagar Fulbaria Dokandar Howkers Samity, represented by its President Challenging the aforesaid judgment dated 16.03.2005. Both the petitions arising out of the same judgment of the High Court Division have been heard together and are disposed of by this single judgment.

3. Fulbaria Adrasha Market Khatigrashta Dokandar Kallayan Samabaya Samity Limited hereinafter referred to as Kallayan Samity instituted Title Suit No. 115 of 1998 for permanent injunction against the defendant petitioners in petition No. 392 of 2005 and others stating, inter alia, that the plaintiff was a registered co-operative society and the members of the said society had been doing their business in the suit property and in 1981, fire took place in the market and thereafter also members of the samity had been continuing their business and there being harassment, at the instance of vested interests, the members of the samity took lease of the property from Shahjadi BegumWaqf Estate and thus had been possessing the same as tenants of the Waqf Estate and that there being

threats to their possession they filed the aforesaid Title Suit No. 115 of 1998 in the 4th Court of the Assistant Judge, Dhaka for permanent injunction and also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure for temporary injunction, so that they could not be evicted from the suit property and that the suit was fixed for ex-part hearing on 25.04.2000 when the defendant A petitioners filed written statement and thus took off the suit from the list of ex-part hearing and that 22.05.2002 was fixed for setting the date of hearing and in the meantime at the instance of the defendant No.6, Dhaka City Corporation the plaintiff petitioners being dispossessed on 22.05.2000, during pendency of the suit the plaintiffs filed an application before the Court for mandatory injunction to get restoration of their possession. The application was resisted by the defendant petitioners who filed written objection. The learned Assistant Judge by order dated 30.10.2001 allowed the application of the plaintiff respondents directing the defendant petitioners and the defendant No. 4 to hand over the possession of the suit land 3 to the plaintiff respondents. The defendant petitioners moved the the Code of Civil Procedure and the High Court Division after hearing the parties discharging the rule by the impugned judgment and order.

4. Being aggrieved the two civil petitions as mentioned above have been preferred.

5. Mr. A.F. Hassan Ariff, learned Senior Advocate appearing for the petitioners in Civil Petition No. 392 of 2005 submits, inter alia, that an order of mandatory in junction is very sparingly allowed. It can be granted if any body is dispossessed in violation of the order of injunction but in the instant case there was no order of status quo as alleged by the plaintiffs and that the plaintiff respondents having been evicted by the law enforcing agency at the instance of Dhaka City Corporation, the lawful owner of the property, and that the plaintiff respondents having not been evicted in violation of courts order/ or any order of injunction or status quo, the High Court Division erred in affirming the order of

mandatory injunction passed by the trial court.

6. Lastly, he submits that the High Court Division erred in holding that order passed by the Appellate Court for maintaining status quo remained in force even after the rejection of the application for temporary injunction on 25.04.2000 and thereby misconstrued the order of the Court in this respect.

7. Mr. T.H.Khan, learned Senior Advocate appearing for the respondent Nos. 1 to 3 opposes the petition. He submits, inter alia, that the trial court finding a strong prima facie case warranting mandatory injunction passed the order in question. The High Court

Division in its turn examined the facts and circumstances and came to correct view in affirming the aforesaid order of the trial court.

8. He further submits that the plaintiff respondents being dispossessed from the suit property, during pendency of the suit inspite of existence of order of injunction/status quo, the courts below did not commit any error at all in passing and affirming the order directing to restore possession to the plaintiff respondents and as such both the petitions are liable to be dismissed.

9. Mr. Khandker Mahbubuddin Ahmed, learned Senior Advocate appearing for the respondent No.4 in Civil Petition for Leave to Appeal No. 392 of 2005 submits, inter alia,

that the suit property belonged to the Government which was handed over to Dhaka City Corporation and the City Corporation leased out the same in favour of the defendant petitioners and as such neither the plaintiffs nor their lessor Shahjadi Begum Waqf Estate

had any iota of right, title or possession over the suit property. In such view of the matter,

according to Mr. Ahmed, question of allowing mendatory injunction in favour of the plaintiff-respondents cannot arise at all.

10. In Civil Petition for Leave to Appeal No. 523 of 2005 Mr. Mainul Hosain, learned Senior Advocate in support of the petition submits, inter alia, that before ascertaining,

any title or possession of the plaintiff respondents the learned Assistant Judge committed serious illegality in allowing the application for mandatory injunction directing the respondent petitioners to hand over possession of the suit property which they have been possessing for long time on the basis of legal document executed by the Dhaka City Corporation.

11. He submits that the High Court Division did not consider this vital aspect of the case

and thus came to an erroneous decision discharging the rule.

12. The submissions made on behalf of the petitioners in both the petitions merit consideration.

13. Leave is, therefore granted in both the petitions to consider the submissions of the

petitioners.

14. Security of Tk. 1000/- in each case is to be deposited within one month.

15. Preparation of paper book is dispensed with as prayed for.

16. Status quo granted earlier be extended for further 6 (six) months from date.

Source: III ADC (2006) 901

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