Appellate Division Cases
(Civil)
PARTIES
Government of Bangladesh and ors…………Appellants (In C.A.No. 46 of 1999)
Bangladesh Mukti Joddah Kalyan Trust
and anr …………………………………..Appellants(In C.A. No. 47 of 1999).
-VS-
Sree Sree Luxmi Janardhan Jew Thakur & ors……………Respondents
(In both the appeals)
JUSTICE
Latifur Rahman CJ
Mahmudul Amin Choudhury J
Kazi Ebadul Hoque J
JUDGEMENT DATE: 10th December 2000
Section 11 of the Code of Civil Procedure
Principle of resjudicata under section 11 of the Code is applicable in a writ proceeding as the same is also a civil proceeding. We are, therefore, of the view that claimed in writ Petition No. 4127 of 1992 filed by the writ petition-respondents against the appellants of both the appeals was barred by the principle of constructive resjudicata for implied refusal of their claim in respect of the selfsame sale deed dated 9.11.1989 in Writ Petition No. 798 of 1990. Morevoer after disposal of Writ Petition No. 480 of 1981 by judgment dated 14.1.1982 on the basis of assurance given in the supplementary affidavit sworn on 11.1.1982 respondents cannot claim that they are the owners of the lands and structures of Hardeo Glass, Alumunium, Enamel and silicate Works and the previous of the said factory and the appellants of the two appeals were and are ejectble monthly tenants under them. Hence the impugned judgment can not be sustained in law is and is liable to be set aside …………………..(17)
In the result both the appeals are allowed without any order as to cost and impugned judgment of the High Court Division is set aside…………. (18)
Civil Appeal Nos. 46 & 47 of 1999 (From the judgment and order dated 25.3.1998 passed by the High Court Division in Writ Petition No. 4127 of 1992)
Mahmudul Islam, Attorney General, instructed bv S.B. Barua, Advocate-on-Record…………….For the Appellants (In C.A.No. 46 of 1999)
A.F.Hasan Arif Advocate, instructed by Sharif Uddin Chaklader, Advocate-on-Record…………………..For the Appellants (In C.A.. No. 47 of 1999)
M.I. Faroquei, Advocate, instructed by M.G. Bhuiyan, Advocate-on-Record……………….. (Respondent Nos. 1-4 (In both the appeals)
Respondent Nos. 5-9 (In C.A. No. 46 of 1999) ……………..Not represented
Respondent Nos. 5-7 (In c.A. No. 47 of 1999)……..Not represented.
JUDGMENT
1. Kazi Ebadul Hoque J: These two appeals by leave arise from judgment and order dated 25.3.1998 passed by a Division Bench of the High Court Division in Writ Petition No. 4127 of 1992 making the rule absolute.
2. M/S Hardeo Glass, Alumunium, Enamel and Silicate Works is situated in the disputed
land and premises and as the owners of the said factory and premises left for India, the
same was declared as enmity property by notification dated 6.10.1965 and the same was
taken over for management by the East Pakistan Small and Cottage Industries Corporation by notification dated 8.10.1965 and after the liberation of the country the
same was made over to the Bangladesh Muktijoddah Kalyan Trust, the appellant No. 1 of Civil Appeal No. 47 of 1999 by an agreement dated 28.2.1978. Writ petitioner-respondents claimed that the premises in which the said factory is situated was let out to the previous owners of the said factory as monthly ejectable tenants and they are the owners of the land and structures standing thereon.
3. On 27.5.1981 a notice was published in the Daily Sangbad inviting tenders by 27.6.1981 for sale of the said property by auction. Challenging the said notice writ petitioner-respondents filed Writ Petition No. 480 of 1981 on the allegation that they are owners of the land and structures and owners of M/S Hardeo Glass Works were monthly tenants in the said premises and rule was issued in that writ petition on 23.6.1981 calling upon the appellants of the two appeals to show cause as to why the said notice for sale of the said property should not be declared to have been made without any lawful authority and of no legal effect. That rule was ultimately disposed of as infructous by judgment dated 14.1.1982 in view of the assurance given by respondent No. 6 of that writ petition in his supplementary affidavit dated 11.1.1982. Subsequently another notification for sale of the structures of the said factory was published on 20.3.1990 after sale of the disputed property by sale deed dated 9.11.1989 by the Government of Bangladesh, appellant No.l,
of Civil Appeal No. 46 of 1999 to the appellant No. 1 of Civil Appeal No. 47 of 1999.
Challenging the said sale deed dated 9.11.1989 (annexure-M) and notification dated 20.3.1990 (annexure-N) writ petitioner-respondents filed Writ Petition No. 789 of 1990 and on 23.4.1990 and rule was issued calling upon the appellants of the two appeals to show cause as to why notification dated 20.3.1990 (annexure-N) should not be declared to have been made without any lawful authority and of no legal effect. But no rule was issued as to the legality of sale deed dated 9.11.1989 (annexure-M). The said rule was
contested by the appellants of both the appeals. By judgment dated 1.12.1992 that
rule was discharged. Thereafter writ petitioner-respondents filed writ petition No. 4127 of
1992 and on 6.11.1993 rule was issued in that writ petition calling upon the appellants of the two appeals to show cause as to why sale deed executed by appellant No. 1 of Civil Appeal No. 46 of 1999 in favour of appellant No. 1 of Civil Appeal No. 47 of 1999 (annexure-M) should not be declared to have been made without any lawful authority and of no legal effect. In that writ petition writ petitioner-respondents claimed that they are owners of the disputed premises as deities on the basis of a deed of gift and the previous owners of the Hardeo Glass, Alumunium, Enamel and Silicate Works were ejectable monthly tenants therein. Appellants of both the appeals contested the said rule by filing seprate affidavits-in-opposition denying respondents’ claim that they are the owners of the said land and premises and the appellants or the previous owners of the said factory are or were ejectable monthly tenants therein and further asserting that the previous owners were and the appellants are non-agricultural tenants under the writ petitioner-respondents and in the compromise decree passed in Title Suit No. 36 of 1955 of the 6th Court of Munsif, Dhaka on 11.8.1958 on the basis of a petition of compromise filed by the writ petitioner-respondent as plaintiffs and previous owners of the said factory as defendants the previous owners were admitted as non-agricultural tenants therein. Respondents denied the allegations and assertions made in the affidavits-in-opposition by filing affidavits-in-reply.
4. By the impugned judgment dated 23.3.1998 High Court Division made the rule absolute in Writ Petition No. 4127 of 1992.
5. Aggrieved by the same respondent Nos. 13 of the said writ petition filed Civil Petition
for leave to appeal No. 789 of 1998 and the respondent Nos. 4 and 5 of that writ petition
filed civil petition for leave to appeal No. 810 of 1998.
6. Leave was granted in C.P. No. 789 of 1998 to consider the submissions of the learned
Attorney General that the definite case of the appellants being that the owners of Hardeo
Glass Factory were non-agricultural tenants of the disputed property which became enemy property as the said owners left of India, the High Court Division committed error of law in not adverting to and deciding on the plea of the respondents that the disputed property was held by Todies as non-agricultural tenants and that the land also vested in the Government. He next submits that the High Court Division was wrong in not taking into consideration the fact that in terms of the compromise decree passed in Title Suit No. 36 of 1955 the Todies were non-agricultural tenants of the disputed property and not monthly tenants.
7. Leave was also granted in C.P. No. 810 of 1998 to consider the submission of Mr. A.F.
Hasan Arif learned advocate that he specifically argued before the High Court Division
that the respondent owners of the Hardeo Glass Factory were non-agricultural tenants of the disputed property, but the said argument was not reflected in the judgment. He further
submits that the learned Judges of the High Court Division did not consider that the
instant writ petition is barred by constructive res-judicata in view of earlier writ petition
No. 798 of 1990, between the parties.
8. Learned Attorney General relying on the order sheet of Title Suit No. 36 of 1955 and
compromise petition filed therein by the parties submitted that respondents admitted the
predecessor-in-interest of appellants i.e. the then owners of Hardeo Glass, Alumunium.
Enamel and Silicate Works as non-agricultural tenants in the lands of the respondents and
the High Court Division acted illegally in not considering the said documents though filed as annexures to the affidavits-in-opposition filed by the appellants of both the appeals and as such acted illegally in making the rule absolute. He further submitted that in view of the fact that no rule was issued in W.P. No. 798 of 1990 in respect of the prayer of the respondents challenging the sale deed dated 9.11.1989 W.P. No. 4127 of 1992 challenging the self same deed is barred by the priciples of constructive resjudicata.
9. On the other hand learned Advocate for the respondents relying on the gift deed, C.S. and S.A. khatians, rent receipts, municipals receipts submitted that the owners of the said
factory were ejectable monthly tenants in the debuttar property of the respondents and there is nothing to show that the said owners were non-agricultural tenants in the said property. He further submitted that there is nothing to show from the order sheet and compromise petition filed in Title Suit No. 36 of 1955 that the writ petitioner-respondents were plaintiffs in that suit as such the solenama filed in that suit is not binding upon the writ petition-respondents. He also submitted that as there was no issue about the legality of sale deed in question in W.P.No.798 of 1990 subsequent W.P. No. 4127 of 1992 was not barred by resjudicata.
10. It appears from the impugned judgment that the learned Judges of the High Court
Division noted the assertion of the appellants that the original tenants constructed the structures in the disputed land as non-agricultural tenants but did not decide the question as to whether the original tenants were non-agricultural tenants as claimed by the appellants or monthly ejectable tenants as claimed by the writ petition-respondents. Though the order sheet of and compromise petition in S.T. No. 36 of 1955 were filed as annexures with the affidavits-in-opposition filed by the appellants and in the affidavits-in-reply respondents stated that they did not file any such suit or any compromise petition therein High Court Division ought to have considered the contentions of the parties but acted illegally in not deciding the same. As the High Court Division failed to decide such vital question leave was granted to consider the same. To meet the objection of the learned advocate of the writ petitioner-respondents that they were not plaintiffs in T.S. No. 36 of 1955 learned Attorney prayed for time and time was allowed to him to produce the certified copy of the plaint and/or relevant page of the suit register concerned to show that the writ petitioner-respondents were plaintiffs in that suit. But on the date of pronouncement of judgment learned Attorney General informed us that he could not obtain certified copy of the plaint and/or relevant page of the concerned suit register as the same are missing. So it is difficult to decide the question in the absence of those documents.
11. But in this connection it is pertinent to refer to the judgment of the High Court
Division passed in Writ Petition No. 480 of 1981 filed by the writ petitioner-respondents
challenging the notice dated 27.5.81 for sale of the disputed property by the appellant No.l of Civil Appeal No. 46 of 1999. That writ petition was disposed of by judgment dated 14.1.1982 by the High Court Division on the basis of assurance given by the appellant No. 2 of Civil Appeal No.. 47 of 1999 (respondent No. 6 of Writ Petition No. 480 of 1981) in paragraph Nos. 5,6, 7 and 9 of the supplementary affidavit sworn on 11.1.1982 wherein it was stated that writ petition-respondents leased out the disputed land to the Toddies and they are entitled to receive rent for the land only. Relevant paragraph Nos. 5,6,7 & 9 of supplementary affidavit sworn on 11.1. 1982 are as follows:
“5. That the petitioners are entitled to receive rent of the said land from the party to whom the industry might be sold.” “6. That the petitioners leased out the land to Sree Hardeo Gonesh Todi, as stated by them at paragraph 7 of the petition who establiched a factory of the said industry Hardeo Glass, Alumunium, Enamel and Silicate Works Ltd.”
“7. That the petitioner used to get rent from the said tenant also from the subsequent managements after the industry become enemy property and the petitioner had not disputed the subsequent change of hands including the management of the Freedom Fighters Welfare Trust which organization is also paying rents for the lands of the petitioner. So there is no reason for any doubt that they will not get the rent from any others person as to whom the industry concerned may be transferred by the Government.”
“9. That the deponent however assures that the owner of the land will be entitled to rent of the land from the buyers as before as modified between the parites.”
12. Relevant portion of the said judgment dated 14.1.1982 is as follows: “In view of the
assurance given by respondent No.6 as contained in his supplementary affidavit sworn on
January 11.1982 that the proposed sale by disinvestment will be without prejudice to the
existing right, title and interest of the petitioners, the learned Counsel for the petitioners
submits that he has no further grievance to make against the impugned advertisement.” In
view of the above it does not now lie in the mouth of the writ petitioner-respondents to
say that the appellants are not non-agricultural tenants of the disputed land but are
ejectable monthly tenants therein.
13. After disposal of Writ Petition No. 480 of 1981 appellant No.l of Civil Appeal No. 46 of 1999 transferred the said property by sale deed dated 9.11.1989 to the appellant No.l of
Civil Appeal No.47 of 1999. Thereafter by notification dated 20.3.1990 structures on the
disputed property was sought to be sold by auction. Challenging the sale deed dated
9.11.1989 (annexure-M) and notification dated 20.3.1990 (annexure-N) writ petitioner-
respondents filed Writ Petition No. 798 of 1990. On 20.4.1990 a Division Bench of the
High Court Division issued rule nisi in that writ petition calling upon the appellants of
both the appeals why notification dated 20.3.1990 (annexure-N) should not be declared to have been made without any lawful authority and why the said notification should not be cancelled, rescinded or withdrawn. But no rule was issued in that writ petition in respect of the sale deed dated 9.11.1989 (annexure-M). By judgment and order dated 1.12.1992 the rule in the said writ petition was discharged. Thereafter writ petitioner-respondents filed Writ Petition No. 4127 of 1992 again challenging sale deed dated 9.11.1989 (annexure-M). In the said writ petition the rule was issued on 6.1.1993 calling upon the appellants of both the appeals to show cause as to why execution of sale deed and transfer of the property of respondent deities should not be declared to have been made without any lawful authority and of no legal effect. In the said writ petition writ petitioner-respondents claimed that they are owners of the property in question and the appellants of both appeals are monthly ejectable tenants therein. By filing separate affidavits-in-opposition appellants of both the appeals denied the allegations and asserted that the owners of Hardeo Glass, Alumunium, Enamel and Silicate Works were non-agricultural
tenants under the writ petitioner-respondents admitted them as non-agricultural tenants
in the disputed property.
14. Contention has been raised as to whether Writ Petition No. 4127 of 1992 was barred by principle of constructive res-judicata in view of the refusal of the High Court Division in writ Petition No. 798 of 1999 to issue rule as to the legality of sale deed dated 9.11.1989 (annexure-M).
15. Explanation V to section 11 of the Code of Civil Procedure is as follows: “Any relief
claimed in the plaint, which is not expressly granted by the decree, shall for the purposes
of this section, be deemed to have been refused”.
16. It appears from judgment dated 1.12.1992 passed by the High Court Division in Writ
Petition No. 798 of 1990 that the said court observed as follows regarding the prayer in
respect of the sale deed dated 9.11.1989. “It is apparent that the petitioners had impugned
both annexure-M the sale deed and the notification annexure-N for the sale of structures.
However this court on 23rd April. 1990 was pleased to issue a rule nisi calling upon the
respondents to show cause as to why the impugned notification Har/BA 22(I)/8990/1134 dated 20.3.1990 (sic) as per annex-ure-N issued by respondent No.4 should not be declared to have been made without any lawful authority and to be of no legal effect and or why the respondents should not be directed to cancel, rescind or withdraw the impugned notification. We, therefore, find that the rule was issued only in respect of the
notification as published in Bangladesh Observer on 24.3.1990″.
17. Thus it is clear that sale deed dated 9.11.1989 was challenged in that Writ Petition
No. 798 of 1990 but no rule was issued in respect of the said sale deed and as such relief
claimed by the writ petitioner-respondents in respect of the said sale deed in that writ petition was not granted by the High Court Division at the initial stage of issuing the rule
and as such the relief against the said sale deed shall be deemed to have been refused for
the purpose of section 11 of the Code of Civil Procedure. So the writ petitioner-respondents can not seek relief against the said sale deed dated 9.11.1989 by filing another Writ Petition No. 4127 of 1997 of 1992. Principle of resjudicata under section 11 of the Code is applicable in a writ proceeding as the same is also a civil proceeding. We are, therefore, of the view that claimed in writ Petition No. 4127 of 1992 filed by the writ petition-respondents against the appellants of both the appeals was barred by the principle of constructive resjudicata for implied refusal of their claim in respect of the self same sale deed dated 9.11.1989 in Writ Petition No. 798 of 1990. Morevoer after disposal of Writ Petition No. 480 of 1981 by judgment dated 14.1.1982 on the basis of assurance given in the supplementary affidavit sworn on 11.1.1982 respondents cannot claim that they are the owners of the lands and structures of Hardeo Glass, Alumunium, Enamel and silicate Works and the previous of the said factory and t!ie appellants of the two appeals were and are ejectble monthly tenants under them. Hence the impugned judgment can not be sustained in law is and is liable to be set aside.
18. In the result both the appeals are allowed without any order as to cost and impugned
judgment of the High Court Division is set aside.
Ed.
Source: IV ADC (2007), 339