Hefazatur Rahman Tipu and others Vs. Forkanul Islam and others

Appellate Division Cases

(Civil)

PARTIES

Hefazatur Rahman Tipu and others ………….Petitioners.

-Vs-

Forkanul Islam and others…………… Respondents.

JUSTICES

Md. Ruhul Amin CJ

M.M.Ruhul Amin J

Md. Tafazzul Islam J

Md. Abdul Matin J

Judgment Dated: 2nd October 2007

The application under Order 39 rules 1, 2, 5(A)3 Section 151 CPC

Revisional application by staying operation of the order ….(1)

That he is a sub-lessee under the company, the authorized leaseholder, and that the period of the lease of the defendant No.l being upto 31st December, 2007, will expire shortly, directed the learned District Judge, to hear and dispose of the appeal on priority basis taking all the material points into consideration and till disposal of the appeal stayed the operation of the above order dated 26.11.2006………………. (5)

Abdul Quayum, Senior Advocate, instructed by Syed Mahbubar Rahman, Advocateon-

Record…………………. For the Petitioners

Abu Siddique, Advocate-on-Record. …………………For Respondent No.l

Respondent Nos.2-4…………………………. Not represented.

Civil Petition For Leave To Appeal No. 438 of 2007

(From the judgment and order dated 25.3.2007 passed by the High Court Division in Civil Order No. 1097 of 2007).

JUDGMENT

Md. Tafazzul Islam J: This petition for leave to appeal arises out of the judgment and order dated 25.3.2007 of the High Court Division passed in Civil Order No. 1097 of 2007 disposing of the revisional application by staying operation of the order dated 26.11.2006 of the learned Senior Assistant Judge, Cox’s Bazar, passed in Other Class Suit No. 17 of 2006 and thereby without issuing any Rule restoring the ad-interim order of injunction which was earlier vacated in view of the provision of Order 39 rule 5A(3) CPC.

2. Brief facts for disposal of this leave petition are that the plaintiff/respondent No.l filed the above Other Class Suit No. 17 of 2006 for declaration that he has the right to enjoy the suit property for a period of five years and also for other reliefs on the averments that the defendant Nos. 2-8 have been running Darbesh Industrial Enterprise Ltd, the company, as its directors and the land described in the schedule of the plaint are the land of Fishery Department which was leased to the aforesaid company for fish culture and the defendant No.2, being elected as the Managing Director of the aforesaid company on 6.7.2002, executed an agreement with him providing that the plaintiff will enjoy 30 acres of land of Plot Nos. 351, 352 and 353 of Mouza Kampur for a period of 5 years and in terms of the above agreement plaintiff has been paying rent to the company by taking receipts and the plaintiff also invested huge money for constructing sluice gate and other structures and that being influenced by other directors of the company, the defendant

No.l is trying to dispossess the plaintiff from the said land. After finding of the above suit on 18.1.2006, the plaintiff, on the same date, also filed an the application under Order 39 rules 1 and 2 read with section 151 CPC praying for a temporary injunction with a prayer for ad-interim injunction praying for restraining the defendant Nos.2-8 from dispossessing the plaintiff from the said land and the learned Senior Assistant Judge by an order of ad-interim injunction dated 18.1.2006 restrained the defendants from dispossessing the plaintiff from the suit land till hearing of the application dated 18.1.2006 for temporary injunction.

3. The defendant No. I/petitioner by filing written objection opposed the prayer of temporary injunction stating that the period of lease of the plaintiff was four years and after expiry of the said period the company took back possession of the suit land and leased the same to him for a period of five years from 23.11.2005 and that agreement for lease was executed between the company and the defendant No. 1 after paying Tk.3,00,000/-to the company, on the basis of a resolution of the company, got delivery of possession of the suit land and after getting possession of the suit land invested huge amount for the development of shrimp culture and salt raising including construction of sluice gate. On 26.11.2006, the date fixed for hearing of the injunction matter, the plaintiff respondent No.l filed an application praying for adjournment which was rejected and the plaintiff respondent No. 1 having not taken any step for hearing the learned Assistant Judge by order dated 26.11.2006, in terms of the amended provisions of Order 39 rule 5(A)(3) CPC rejected the prayer for time and recalled the above order of ad- interim injunction passed on 18.1.2006. As against that the plaintiff filed Miscellaneous Appeal No.28 of 2006 in the Court of District judge, Cox’s Bazar with an application praying for restoring the order of ad-interim injunction passed on 18.1.2006 but the learned District Judge by order dated 1.2.2007 rejected the said prayer. The plaintiff then again filed an application dated 4.2.2007 praying for staying the operation of the order dated 26.11.2002 and by order dated 8.3.2002 the said prayer was rejected. As against that the plaintiff respondent No.l moved the High Court Division in revisional

jurisdiction and the High Court Division, without issuing Rule, by order dated 25.3.2007 passed in Civil Order No. 1097 of 2007, staying the operation of order the dated 26.11.2006 directed the learned District Judge to dispose of the Miscellaneous Appeal No.28 of 2006 within 2 month from the date of receipt of the order.

4. The learned Counsel for the petitioner submitted that in view of the amended provision of Order 39 rule 5(A)3 CPC the order dated 26.11.2006 vacating ad-interim order of injunction could not by stayed and further the plaintiff, by the above order of High Court Division dated 25.3.2007, got the entire relief and thus the High Court Division exercised its discretion whimsically’ and the said order of the High Court Division has the effect of pushing out the defendant out of his lease hold land without hearing.

5. As it appears the High Court Division considering the submission of the learned Advocate for the defendant No.l that he is a sub-lessee under the company, the authorized leaseholder, and that the period of the lease of the defendant No. 1 being upto 31st December, 2007, will expire shortly, directed the learned District Judge, to hear and dispose of the appeal on priority basis taking all the material points into consideration and till disposal of the appeal stayed the operation of the above order dated 26.11.2006.

6. Accordingly we are of the view that the High Court Division did not commit any illegality or infirmity so as to call for any interference.

7. Accordingly the petition is dismissed.

Source : V ADC (2008),483

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