Golam Azim and another Vs. Bangladesh and others

Appellate Division Cases

(Civil)

PARTIES

Golam Azim and another…………… Petitioners

-VS-

Bangladesh and others…………….. Respondents

Md. Ruhul Amin CJ

M.M. Ruhul Amin J

Md. Tafazzul Islam J

Md. Abdul Matin J

Judgment Dated: 3rd October 2007

The Ordinance No. 24 of 1970, Section 5(1)

The High Court Division rejected the writ petition summarily upon observing ‘The petitioner filed a title suit before the Court below where the question of title is pending. Under these facts and circumstances we do not find any substance in this application”…………. (5)

The law is now settled that a litigant is not permitted to move the High Court Division under writ jurisdiction over a matter as regard to which he has already filed the suit in the civil Court and the same is pending…………………..(7)

Accordingly, petition is dismissed. …………..(9)

Nawshad Zamii; Advocate (appeared with the leave of the Court) instructed by Mvi.

Md. Wahidullah, Advocate-on-record. ………………………For the Petitioners

Naima Haider, Deputy Attorney General instructed by Zainul Abedin, Advocate-nrecord

……………………….For the Respondents

Civil Petition For Leave to Appeal No. 1438 of 2005

(From the Judgment and Order dated September 26, 2005 passed by the High Court Division in Writ Petition No. 7185 of 2005)

JUDGMENT

Md. Ruhul Amin CJ : This petition for leave to appeal is directed against the order dated September 26, 2005 of a Division of the High Court Division in rejecting the Writ Petition No. 7185 of 2005 summarily.

2. The Writ petition was filed impugning the notice issued to the writ petitiners directing him to vacate the premises mentioned in the notice. The notice was issued under section 5(1) of the Ordinance No. 24 of 1970.

3. As it appears that in case of failing to vacate the premises in question by the time specified in the notice writ petitioners would be evicted therefrom and the structures therein would be demolished.

4. From the order of the High Court Division it is seen that writ petitioners filed Title Suit No. 186 of 2005 seeking declaration of title in respect of the land in suit and in the said suit had also challenged legality of the notice issued under section 5(1) of the Ordinance No. 24 of 1970.

5. The High Court Division rejected the writ petition summarily upon observing ‘The petitioner filed a title suit before the Court below where the question of title is pending. Under these facts and circumstances we do not find any substance in this application”.

6. The learned Advocate who appeared with the leave of the Court submits that the High Court Division was in error in rejecting the writ petition summarily because provisions of Ordinance No.24 of 1970 ousted jurisdiction of the civil Court to grant injunction. He also submits that the High Court Division failed to appreciate the facts and circumstances of the case that the authority is about to evict the petitioners.

7. It appears from the order sought to be appealed that the petitioners have already challenged legality of the notice issued in the light of the provision of Ordinance No. 24 of 1970 in Title Suit No. 186 of 2005 and the said suit is pending. The petitioners keeping the said suit pending has moved the High Court Division under Article 102(2) of the Constitution of Bangladesh. The law is now settled that a litigant is not permitted to move the High Court Division under writ jurisdiction over a matter as regard to which he has

already filed the suit in the civil Court and the same is pending.

8. In that view of the matter we are of the view the High Court Division has committed

no error in rejecting the writ petition summarily.

9. Accordingly, petition is dismissed.

Source : V ADC (2008), 295