Present
Mr. Justice Sheikh Abdul Awal
and
Mr. Justice M. Moazzam Husain
Civil Revision No. 3266 of 2008
Gopinath Das & others
……. Plaintiff-Petitioners
Versus
Govt. ofBangladeshand others
……Defendant Opposite -Parties.
Mr. Khalilur Rahman with
Mr.Md.Khalilur Rahman, Helal………. Advocate
…. For the Petitioners
Mr. Mahbub-e-Alam, Attorney General
With
M. Akram H. Chowdhury, Deputy Attorney General
Mr. Gautam Kumar Roy, Deputy Attorney General
Mr. Arabinda K Roy……….Asstt. Attorney General.
….For the opposite party No.1
Heard on: 22nd 27th 28th April, and 6th May, 2010
Judgment on: 12.5.2010.
M.Moazzam Husain, J.
This rule was issued at the instance of the plaintiffs calling in question the judgment and order dated 11.3.2008 passed by the joint district judge, , 3rd Court, Dhaka in Misc. Case No. 30 of 2007 under Order IX rule 13 of the Code of Civil Procedure (“the Code” for short) setting aside a decree passed ex parte in Title Suit No. 724 of 1985.
The case, technically though, concerns nothing more than a question of legality of an order of restoration of a suit earlier decreed ex parte, fitness of things requires an extensive treatment of the plaint.
The suit is for declaration of title and recovery of khas possession of 5.18 acre land described in schedule “B” of the plaint which forms part of 7.25 acre land in mauza Sahar Dhaka (latterly Mauza Ramna). The land appertaining to the suit khatian originally belonged to one Gobinda Chanra Basak, shortly, “GC Basak”. His name was initially shown in the CS record as ga¨mZ¡vwaKvix out of mistake. Later by a correction case No. 24 of 1918 under section 198A of Bengal Tenancy Act his right was recorded as ‘owner-in-possession’. G C Basak settled 5.18 acre agricultural land out of the land of said khatian with Gowranga Chandra Das, the original plaintiff and one Md. Noor Hossain, his benamdar by an amalnama executed on 24rh Falgun, 1339 BS which is covered by CS plot Nos. 36, 40, 47, 48, 52 and 82 as described in schedule B at an annual rent of Tk. 57/-.
As the right of said G C Basak was wrongly recorded in the amalnama as ga¨mZ¡vwaKvix the amalnama was defective as such the same was cancelled on 18th Chaitra, 1339 BS by said GC Basak by way of making an endorsement on the back of the same and on the same day he issued a fresh amalnama in favour of plaintiff No.1 and his benamdar granting settlement of said B schedule land in favour of Plaintiff No.1 (since dead) on acceptance of rent and granted rent receipt therefor. Accordingly said GC Basak delivered possession of the suit land to plaintiff No.1.
It appeared that the whole area of suit land was not covered by CS plot Nos. 40, 48 and 36. GC Basak upon a wrong impression executed amalnama by reference to the said plots only. Surveyor was appointed by both in 1944 who submitted report on 5.3.1944 which revealed that area of plot Nos. 40 and 48 was wrongly recorded in the khatian as 4.00 acre and 1.75 acre respectively instead of 2.61 and 1.55 acre respectively.
It was then detected that the land settled with the plaintiffs had been wrongly described in the amalnama. GC Basak accordingly corrected his mistake in the description of the land settled with the plaintiff by inserting plot numbers in the dakhila granted by him and thus confirmed his settlement of schedule B land in favour of the plaintiffs.
One Azizul Hoque, father of plaintiff No. 2 contributed 1/10th of the salami of the settlement pursuant to which plaintiff no.1 transferred .48 acre land by executing a nadabipatra in favour of plaintiff No. 2.
Since settlement plaintiff No. 1 has been in possession of the B schedule land as a tenant by paying rent to the sherista of GC Basak upto 1362 BS. He did the act of possession by rearing and caching fish in low-lying area while in the remaining land he used to grow crops sometimes by himself and sometimes through bargadars. He also developed a portion of land by spending huge amount of money. GC Basak left forCalcutta around 1359 BS where he died shortly thereafter. His only son Rashik Lal Basak also permanently settled inIndia. The property belonging to GC Basak used to be looked after by Sudhangshu Shekhor Chatterjee who also left the country after acquisition of rent receiving interest. In the aforesaid premises the plaintiffs acquired an indefeasible title in B schedule property by virtue of settlement and by adverse possession in assertion of hostile title for a period much more that 12 years.
During SA operation the suit land was wrongly recorded in the name of the government and C & B department of the government. Plaintiff No. 1 filed an objection case, No. 2079 of 1963, under Rule 30 of the SAT Rules, and the Settlement Officer passed an order dated 16.5.1963 for correction of record by opening a separate khatian in the name of the plaintiff No.1 and his benamdar said Noor Hossain in respect of plot Nos. 512 and 570 measuring an area of 3.00 acre and 1.76 acre land respectively. Unfortunately said order of the ASO was not complied with and the defendant Nos, 1, 3-30 recorded their names in the SA khatian by undue influence. Plaintiff having come to learn about such recording filed three objection cases on 16.6.1978 bearing Nos. 10, 11 and 12 of 1978.
In course of the proceedings plaintiff came to know that defendant Nos. 10-17 obtained a decree dated 7.2.1975 in Title Suit No. 31 of 1966 from 6th Court of Munsif, Dhaka, for permanent injunction in respect of .98 acre land of CS plot No. 40 against the government and another on the plea of settlement taken from Rashik Lal which was affirmed in appeal although the plaintiff was the rightful owner and have all along been in possession of the same. The said decree is fraudulent and collusive.
The defendant No. 1 served notice in 1980 upon defendant Nos. 3-9 under Act X of 1953 for surrendering possession of 20 acre of CS plot Nos. 82; .17 acre of CS plot No. 1 and .15 acre of CS plot No. 48 treating the same as government khas land and the said defendant Nos.3-9 instituted Title Suit No. 37 of 1981 in the 5th Court of Sub Judge, Dhaka, for permanent injunction on the plea that they got the land by korfa settlement from Rashik Lal and Mohadev Chandra Goala. They got .70 acre of the disputed CS plot 40 by amalnama and dakhila. This claim of the said defendants on the basis of amalnama/dakhila is false as those documents are forged. Rashik Lal or Mohadev had no saleable/transferable rights in the suit land. Said suit is still pending.
In the first part of 1975 defendant No.2 with police force dispossessed the plaintiffs from the disputed land measuring 5.18 acre described in C- schedule land. In the early part of February, 1978 defendant Nos. 3-6 who have their residential houses on the land adjacent to plot 40 and 82 started encroaching upon the disputed land and by now encroached .90 acre of the suit land; .17 acre from CS plot No. 48; 28 decimal from plot No. 82 ie, total 1. 26 acre land described in schedule D. Their claim of settlement from Rashik Lal or Mohadev Goala or Kashem is false. They are in wrongful possession of the suit land.
Defendant No.11, another person having no title to the suit land raised a tin-shed in 1981 with pacca plinth on .03 acre of the disputed land and constructed another structure in the middle of plot No. 40 described in schedule No. E and delineated in the sketch map attached and marked as Y of the plaint.
In collusion with defendant-2, said defendant being an employee of Dhaka Municipal Corporation managed to mutate his name under holdingNo. 5/6 Topkhana Road.Defendant No.12 also being an employee of said corporation managed to have another holding number ie,6/5 Topkhana Roadin his name without having title and possession therein. He has raised another CI sheet structure attached to the structure of defendant No-11 in the last part of 1982.
That defendant No 31-40 every now and then trying to enter into the B- schedule land and threatening the tenants of the plaintiff with dispossession. Some of them are claiming that they have purchased the portions of land in plot 40 and 48 described in schedule B from defendant No-11.
The land described in schedule C, D and E comprises the whole of the land described in schedule B. Cause of action of the suit has arisen in last part of 1975 and then on 16.6.1978. The property is agricultural low land and value of which is Tk. 5 (five) crore
The case sought to be canvassed by the plaintiff-petitioners before us is that defendant No.1 appeared in the suit on 16.9.85 and took several adjournments for filing Written Statements (‘WS’ for short) but ultimately did not file any. Finally, the petitioners got a compromise decree on 28.11.99. The decree was put to execution in Execution Case No. 31(G)/2000 in the court of Subordinate Judge Artha Rin Adalat, 3, Dhaka. Summons of the execution case was duly served upon the defendant Nos.1 and 2 on 9.2.02 and 14.02.02 respectively and they appeared on 25.3.03 and contested the execution case. Subsequently the said execution case was transferred to the court of Joint District Judge 3rd Court,Dhaka, and renumbered as Execution Case No. 12 of 2003.
On 3.4.07 defendant No. 1 filed Miscellaneous case No.6 of 2007 in the execution court under Order IX rule 13 of the CPC for setting aside the ex parte decree stating, inter alia, that the summons/notices of the suit was not duly served upon the defendant government; plaintiff successfully sidetracked the government and obtained a compromise decree in collusion with some other set up defendants; government having come to know about the execution case appeared on 26.2.2005 and came to learn about the fraudulent compromise decree dated 28.11.1999 and for setting aside the said ex-parte decree filed the instant Miscellaneous Case which was renumbered on transfer as Miscellaneous Case No. 30 of 2007.
Plaintiffs contested the miscellaneous case filing written objection wherein they have denied all the allegations made in the Miscellaneous Case. In the written objection the maintainability of the same was challenged in terms of its form and manner including its non-maintainability on the score of limitation. Plaintiffs seriously objected to the plea of the government raised in terms of its absence of knowledge and stated that the government contested the suit for long 14 years from 16.9.1985 to 26.6.1998 and took numerous adornments for filing written statement in the suit , though finally did not file written statement. Government also appeared on 25.3.2003 in the execution case filed by the plaintiffs and continued upto 11.8.2003 taking adjournments. Long thereafter, ie, on 26.2.2005 government filed an application informing the execution court that it would file Miscellaneous Case against the ex-parte decree passed in TS No, 113 of 1999. Two years 2 months thereafter the instant Miscellaneous Case under Order IX rule 13 of the CPC was filed by suppressing material facts only to deprive the plaintiffs of the fruit of decree they got through sustained legal battle.
The miscellaneous case was heard by Mr. M.S. Saiful Islam, Joint District Judge 3rd Court, Dhaka, who allowed the same by his order dated 11.03.08 and restored the suit to its original file and number by setting aside the decree ex-parte which is impugned before us.
During hearing of the instant revisional application a supplementary affidavit was filed on behalf of the petitioners bringing on records a number of documents, namely, certified copy of the judgment passed in Title Suit No. 550 of 1984 filed by one A. Malek Hawladar & otheres against the government and others (Annexure-G) in which another Title Suit ie, Title Suit No. 551 of 1984 was also disposed of; certified copy of the decree passed in Title Suit No. 550 of 1984 (Annexure-G-1); certified copy of the common judgment and decree passed in Title Appeal Nos. 52 and 53 of 1985 preferred by the government against the judgment and decrees passed in aforesaid two suits (Annexure-H); appellate decree (Annexure-H-1); certified copy of the judgment passed in Civil Revision No. 531 and 532 of 1988 by a Single Bench of the High Court Division preferred by the government against the aforesaid appellate decrees (Annexure-I) and a judgment and order dated 12.3.1992 passed by the Appellate Division in Civil Petition No. 224 and 225 of 1991 filed at the instance of the government challenging the aforesaid judgment and order of the High Court Division(Annexure-J).
By all these documents what the present petitioners basically tried to show that the amalnama on the basis of which the present suit was filed was one upon which other persons claimed their respective title against the government and others in respect of some portions of the land of suit khatian and succeeded up to the Appellate Division.
A counter-Affidavit was filed on behalf of the Government (OP-1) wherein it is stated, amongst other things, that the original suit was twice renumbered and the third time when the same was renumbered as Title Suit No. 113(G) of 1999 no notice was given to the government or its pleader. It was further stated that 26.10.1998 was fixed for hearing of the suit but the plaintiff took adjournment. The next date was fixed on 24.11.1998 for final hearing but records were not produced before the court on that date. Meanwhile the suit was transferred by the District Judge to another court by his order dated 02.11.1998 of which no notice was received by the government. Thus keeping the government in dark a compromise decree was obtained practicing fraud upon court. Learned judge, therefore, committed no illegality in allowing the miscellaneous case.
Mr. Khalilur Rahman, learned Advocate, appearing for the petitioners, submits that government admittedly contested the suit for 14 years and then appeared in the execution case. At a stage of the execution case government informed the court that it would file miscellaneous case for restoration of the suit. Long two years thereafter government filed the instant Miscellaneous Case under Order IX rue 13 of the Code for setting aside the decree passed ex-parte against it that too without filing any petition under section 5 of the Limitation Act explaining the delay incurred in filing the same. He submits that after contesting the suit and execution case for so many years it does not lie in the mouth of the opposite party that the decree was passed behind its back. Mr. Rahman seriously raised the contention that the learned judge while sitting over an application under Order IX rule 13 of the Code has traveled beyond his jurisdiction and dwelt in the merit of the case which is not permissible in law.
Mr. Mahbub-e-Alam, learned Attorney General, appeared on behalf of the Government and submited before us that a bare glance through the records of the suit, way of prosecution, nature of claim set up and sudden culmination of design in a compromise decree ipso facto suggest that this is a suit filed at the behest of a land grabbers syndicate operating in Dhaka city who having taken a decree ex parte resort to blackmail and earn money. It is not unlikely, he argued, that a class of government and court insiders has tacit involvement in the deal. It is not also unlikely, he stressed, that the plaintiffs, ie, the present petitioners who claim to be sons of Gauranga are imposters set up by those gang masters. He drew our attention to the peculiar facts of the instant case. The case, he submitted, was filed in 1985 and continued upto 1999 without any positive steps taken for its speedy disposal as is usually done by a bona fide claimant. Firstly one Gauranga and one Syed Maynul Hoque as plaintiffs and after alleged death of Gauranga two other persons claiming to be his sons along with said Maynul Hoque allowed the suit to be continued for more than 14 years without showing any efforts put in for disposal. Records, as learned Attorney General pointed out, will suggest that they spent more than a decade just in a wait for an opportune moment. They finally came out successful in getting the suit transferred to another court keeping the government in dark. And under a new and peculiar number managed to obtain a compromise decree in collusion with the set up defendants behind the back of the government though government is the principal defendant in the suit. Learned Attorney General contended that the sequence of events as is evident in the impugned order also, will suggest that the ex-parte decree against the Government was effected by practicing fraud upon the court and the government.
Learned Attorney General further pointed out that 5.18 acre land situated in the city centre, ie, in Ramna Mauja and admittedly recorded in the khas khatian of the government. He apprised us that there are at least four important public buildings and installations situated in the suit land including old bungalows built during British period. The claimants of the entire invaluable property are mainly two persons of village Sreedharpur, Munshiganj posing to be sons of one late Gauranga Chandra Das so-called original plaintiff by virtue of an unregistered amalnama of 1339 BS which did not work out on account of series of mistakes and finally rested in a dakhila allegedly granted by GC Basak. In view of the peculiarities, he contended, the suit itself is meritless, frivolous and not maintainable. If the government is not given a chance to contest the suit multiplicity of litigation will follow.
It appears from records, that the suit was pursued for more than a decade without any noticeable concern of the plaintiff for ending it up. The suit was fixed on 26.10.1998 for hearing but the plaintiff took adjournment. Learned court fixed 24.11.1998 for final hearing. There was no trace in the conduct of the plaintiff indicating loss of confidence in the court. On the date fixed for final hearing of the suit the records were found not available before court. This seems to be unusual. Meanwhile on 2.11.1998 the suit was transferred by the District Judge to a new court seemingly beyond the knowledge of the trial court. And in the new court under a new and peculiar number it was decreed on compromise on 28.11.1999 allegedly beyond knowledge of the government the principal defendant in the suit. We have good reasons to believe that this episode was staged surreptitiously keeping both the government and the courts in dark. Our suspicion is hardened by a statement made in paragraph No. 10 of the revisional application. A portion of the paragraph reads as follows:
“10. That it is stated that title suit No. 42 of 1988 was transferred vide administrative order of the learned District Judge, as such, no notice is required to be served upon either parties of the suit…”
A bare reading of the statement per se suggests that the suit was transferred by the learned District Judge within the knowledge of the plaintiffs of which no information passed to the government nor was the trial court aware of the transfer at least upto the date of final hearing fixed by it. The plea of “transfer by administrative order” taken by the plaintiff-petitioners lends colour to the claim of the Government that the transfer was made behind its back.
Transfer of a suit pending for trial before a competent court is a judicial act to be done judicially allowing reasonable opportunity to the parties to be heard. Should any exigency arise necessitating suo motu transfer of any suit or proceedings or a class of suits or proceedings from one court to another it must of necessity be done in a manner that the parties cannot reasonably plead ignorance.
Be that as it may, the instant suit is found to be transferred and renumbered as Title Suit No. 113(G) of 1999, which, as the learned Attorney General rightly pointed out, is a peculiar number which finally ended in decree on compromise as against some and ex-parte as against the government. The facts around transfer made for whatever reasons is unclear and the ignorance pleaded by the government is fairly justifiable.
In this respect few lines from the impugned judgment of the learned Joint District Judge are relevant:
Ó…..bw_ ch©v‡jvPbvq †`Lv hvq †h g~j †`Iqvbx 724/85 bs †gvKÏgvwU e`jx m~‡Î †`t 42/88 (1g mveRR Av`vjZ) bs †gvKÏgvq m~PxZ nq Ges cieZ©x‡Z Avevi e`jx m~‡Î AÎv`vj‡Zi †`Iqvbx 113/99 (wR) bs †gvKÏgvq m~PxZ nq| bw_ ch©v‡jvPbvq †`Lv hvq †h gRni miKvi c¶ Z`Kvjxb cÖ_g mveRR Av`vj‡Z †`t 42/88 bs †gvKÏgvq 26/10/1998 ZvwiL ch©šÍ Av`vj‡Z gvgjvq nvwRiv †`b| 26/10/98 Bs Zvwi‡Li ci 24/11/98 Bs Zvwi‡L gvgjvi PzovšÍ ïbvbxi w`b avh© Kiv nq| Z‡e H Zvwi‡L bw_ Av‡`Š Dc¯’vcb Kiv nBqv‡Q g‡g© †`Lv hvqbv| gvbbxq †RjvRR g‡nv`‡qi 2/11/98 Bs Zvwi‡Li Av‡`k g~‡j †gvKÏgvwU AÎv`vj‡Z e`jx Kiv nq Ges 17/2/98 Bs Zvwi‡L bw_ cÖvwßi ci †gvKÏgvwU Av`vj‡Zi †`Iqvbx 113/99 wR bs †gvKÏgv wnmv‡e †iwRwóªZz³ Kiv nq| Av`vj‡Z †gvKÏgvwU †`Iqvbx 113/99 wR bs †gvKÏgvq m~PxZ nIqvi ci gRni miKvi c¶‡K Avi AÎ †gvKÏgvq nvwRi †`Lv hvq bv| †gvKÏgvwU e`jx m~‡Î Avmvi welqwU miKvi c‡¶i weÁ †KŠmyjx‡K KL‡bv †Kvbfv‡e AeMZ Kiv‡bv nBqvwQj g‡g© †`Lv hvqbv| †h †mv‡j m~‡Î †gvKÏgvwU wWwµ cÖ`vb Kiv nq H †mv‡jbvgvi †Kvb AYywjwc miKvi c‡¶i weÁ †KŠmyjx‡K †`Iqv nBqvwQ‡jv g‡g© †`Lv hvq bv| ….d‡j g~j †gvKÏgvwU ïbvvbxKv‡j gRni miKvi c‡¶i Av`vj‡Z AYycw¯’Z _vKvi msMZ KviY wQ‡jv ewjqv we‡ewPZ nq|…….Ó
The portion of findings of the learned Joint District Judge also suggests lack of fairplay on the part of the plaintiffs and the ex-parte decree involving huge tract of land in the downtown Dhaka city was obtained against the principal defendant in a surreptitious manner. We find ample elements of abuses of judicial process by the plaintiffs and relaxed exercises of judicial power in decreeing ex parte in total disregard of the question of merit of the suit, executability of the decree and other incidents of the suit involving such a vast tract of land crowded with public and private buildings and installations.
Decree ex parte is passed in a manner as if absence of defendant ipso facto confers title of the suit land upon the plaintiff. And the plaintiffs are absolved of their duty to discharge their onus to prove their own case. Routine decree passed ex parte on account merely of absence of the defendant has never found favour with the superior courts. InBangladesh v A. Wadud, 25 DLR (SC) 90, it is held:
Absence of defendant cannot give the plaintiff an occasion to obtain an ex parte decree without producing evidence in support of his claim. This view is consistently subscribed by the superior courts in a long line of cases.
The case appears to be one in which justice is defeated by fraud. The peculiar facts of the case speak of an unholy alliance between the parties and the defendants inter se in carrying into effect a secret design that finally succeeded. Once fraud is detected in the process of justice no technicality should stand on the way to setting things right. We, therefore, find the contention raised by Mr. Khalilur Rahman plainly unacceptable. We are in the firm view that the government, regardless of infirmities, if any, in pursuing the restoration matter, is deprived of the opportunity to contest a suit having had far reaching consequence. The learned Joint District Judge has rightly set aside the ex parte decree. No justifiable reason is there to interfere with his findings.
For all the reasons stated above we hold that the rule is devoid of merit and the order of restoration of the suit must be maintained giving the government an opportunity to contest the suit. While we so hold the peculiar facts set out in the plaint do not escape our sight.
A close reading of the plaint cannot but draw attention of judicial mind to the basic question that whether the plaint at all discloses any cause of action; is the suit apparently meritless and frivolous and its continuation tantamount to abuse of the process of court. If the suit is so found is there any justification to allow a futile litigation to continue at the cost of the parties as well as of public money and time. The answer is most squarely given in the case of Chowmuhuni College v Ismail Hossain (Md) reported in 26 DLR 10. In this case High Court Division was in seisin of an injunction matter in a suit for declaration and permanent injunction. Sitting upon the legality of the temporary injunction granted by the courts below High Court Division traveled beyond the issue at hand and rejected the plaint with the following observations:
“The question of maintainability of the suit goes at the root of a matter in issue to be adjudicated upon. If the mere reading of the plaint it is found that the suit is not maintainable the court has to decide the said point even when it is called upon to consider the question of issuing a temporary injunction…”
In the case of Sazzadul Haque v Sardar Anwar Hossain reported in 57 DLR 273 High Court Division rejected the plaint while sitting in an interlocutory matter. In this case a suit was filed by a chairman candidate in the Union Parishad election challenging the validity of changing and setting up new polling stations. Temporary injunction was granted by the trial court which was affirmed in appeal by the District Judge. In revision against an order of injunction High Court Division rejected the plaint as the suit was found not maintainable holding:
“Though the instant revision has arisen out of an interlocutory order, yet this court is in exercise of its revisional jurisdiction can very much see and decide the question of maintainability of the suit.”
The next point that comes in is whether plaint can be rejected beyond the scope of Order VII rule 11 of the Code of Civil Procedure. The question is long settled and also adequately answered in the positive in the two authorities referred to above. In ChowmuhuniCollegecase (supra) it is held:
“I have already held the suit as framed is not maintainable under section 42 of the Specific Relief Act ….Now the question is whether I should reject the plaint or not in exercise of my jurisdiction under section 150 read with section 151 of the Code does not disclose any cause of action I am clearly of the view that in the facts and circumstances of the case the plaint should be rejected here and now in exercise of my inherent jurisdiction.”
And in the other case, ie, the case of Sazzadul Haque (supra) plaint was rejected in exercise of the courts revisional jurisdiction at an interlocutory stage as it was felt necessary so to do in the fitness of things. There is hardly, if ever, any controversy about the proposition of law that Order VII rule 11 of the Code is not exhaustive. And if the Order VII rule 11 of the Code cannot be called in aid plaint can be rejected to prevent abuse of the process of the court in exercise of the court’s inherent jurisdiction.
The case of Rasheda Begum v Nurussafa, MM & others, 24 BLD (AD) 223, is on point. In this case our Appellate Division held:
“The law is more or less settled that matter of rejection of plaint is not confined to Order VII rule11 of the Code of Civil Procedure. In a fit or appropriate case, i.e., while the proceeding initiated is an abuse of the process of the court or a contrive to achieve something which the party failed upon proceeding under the law provided for or in any other case akin to cases as mentioned above the court taking recourse of the provision of section 151 would be competent to reject the plaint…”
In Guinness Peat (Trading) Ltd. v Md. Fazlur Rahman, 12 BLD (AD) 247; 44 DLR(AD)242, defendant sought rejection of plaint on ground that the plaintiff does not reside nor any part of cause of action of the suit arose within the jurisdiction of the court. Our Appellate Division held:
“We must make it clear that the question of jurisdiction does not come within the purview of Order VII rule 11 of the Code….A resort to section 151 of the Code may be made in the interest of jurisdiction only in an exceptional case where the suit is foredoomed, and if it is allowed to be proceeded with, it will amount to an abuse of the process of court”
Initiation of suit is not seen by the superior courts as an unrestricted right to be exercised at pleasure. It must disclose a ‘cause of action’ within the meaning of ‘right as to any property’ or ‘legal character ‘so far as section 42 of the Specific Relief Act is concerned. A suit may be barred by law ie, by express letters of law and barred ‘under the law’ which presupposes that Order VII rule 11 is not exhaustive.
The famously known Burma Eastern case, ie, Burma Eastern Ltd. V Burma Eastern Employees Union & others reported in 18 DLR 709 is the case on point. In this case Murshed,C J, speaking for the court held:
“A suit may be specifically barred by law and in such event the matter would come under express terms of clause (d) of Rule 11 of Order VII of the Code. But, even in a case where a suit is not permitted by necessary implication of law in the sense that a positive prohibition can be spelt out of legal provision, the court has an inherent jurisdiction to reject the plaint. This really amounts to saying that Order VII rule 11, is not exhaustive….If, as a result of the provision of law, the suit is barred, it would be barred under law, although strictly speaking, it may not be specifically barred by law in express terms. The court should, in such a case reject the plaint, under its inherent power.”
In the case of Aminur Rahman Khan v Trade Aris Insurance reported in 7 BLC 330 (DB) a Division Bench of the High Court Division expressed similar view in the following words:
“We are, therefore, of the opinion that recourse to section 151 for rejection of plaint can be resorted to in exceptional cases where if the suit is allowed, it would amount to an abuse of the process of the court…”
In a recent case ie, in Abdul Zalil & others v Islamic Bank Bangladesh Ltd & others reported in 53 DLR (AD) 12 our Apex court has gone as far as to hold:
“It is well settled that when a plaint cannot be rejected under Order VII rule 11 of the Code of Civil Procedure the court may invoke its inherent jurisdiction and reject the plaint taking recourse to section 151 of the Code of Civil Procedure…. As the ultimate result of the suit is as clear as daylight such suit should be properly buried at its inception so that no further time is consumed in a fruitless litigation”
With all the questions about the nature and extent of our jurisdiction in rejecting a plain while in seisin of an interlocutory matter are settled we do not see any reason why the present suit shall be given a goby if the fitness of things requires our interference.
In the instant case a vast tract of land in the central area of Dhaka city (Topkhana Road) measuring an area of 5.18 acre (five acres and eighteen decimal) is claimed by two persons from a village of Munshiganj district on the basis of a Zamindari dakhila of 1944 as against record of rights admittedly standing in the name of the government and admitted possession of the Government at least from 1975, let alone, by construction of five public buildings thereon as claimed by the learned Attorney General as well as admitted possession of a good number of private defendants by virtue of decrees of law courts and various registered and other title documents.
The land is shown to be partially agricultural and partially low-lying in which condition the plaintiff allegedly used to possess by developing part of it. His nature of possession was rearing fish and cultivating crops till 1975. The land as disclosed in the plaint is situated inTopkhana Road. This means by necessary implication that the possession of the plaintiff in the suit land came to an end as the urbanization ofDhakagot underway with the creation of the erstwhilePakistanin 1947. There is no clear case pleaded that the plaintiffs have ever had any building or dwelling house of any description in the suit land or the descriptions of their tenants in respect thereto. The statement that the government has forcibly dispossessed them in 1975 from the entire suit land comes in sharp contradiction with their claim that their tenants are being threatened by defendant Nos. 31-40 with dispossession and defendant Nos. 3-9 or defendant No.11 have trespassed into the land and living there erecting dwelling houses.
Admittedly government served notice to defendant Nos.3-9 asking them to surrender possession of the suit land. No such notice is claimed to have been served upon the plaintiff which means that they were not found in possession of any portion of the of the suit land. There appear to be a long blackout on the question of possession of the plaintiff since his settlement in 1339 BS till 1975. No tangible or meaningful efforts are seen to have been taken by the plaintiff in preventing the government and/or other defendants in possession from changing the nature and character of the suit land over these three decades, if not more.
We have closely gone through supplementary affidavit filed on behalf of the petitioners and the judgment and decree Annexed thereto passed in Title Suit Nos. 550 and 551 of 1984 (analogously tried) obtained by one Abdul Malek Howladar & others and one Syed Md. Hanif and others respectively allegedly on the basis of the common amalnama upon which the plaintiff petitioner sought to place heavy reliance. Firstly, every suit has its own peculiar merit. The suit brought by the plaintiff must stand on its own merit. Furthermore, decree passed in some other suit brought by independent and separate individuals allegedly on the selfsame amalnama, even if true, is of no avail for the petitioner for the precise reason that the amalnama sought to be relied upon by the petitioner admittedly trailed away by series of mistakes affecting area and description of land sought to be settled with the plaintiffs’ predecessor and finally their title, as pleaded, rested on a dakhila issued by the original owner to effect the settlement. The amalnama, therefore was relegated to a vanishing point forming no more basis of the title of the plaintiffs. The factum that the government lost up to the Appellate Division in those suits is not correct in the sense it is sought to be portrayed. Both the High Court Division and the Appellate Division dismissed the appeals by the government exclusively on limitation ground not on merit. Over and above the amalnama relied upon in those suits does not tally in material particulars with the amalnama used in the instant suit.
Order VII rule 11 of the Code says, inter alia, that- ‘the plaint shall be rejected where it does not disclose any cause of action’. ‘Cause of action’ is nowhere defined in the Code. Nonetheless, it is viewed by the superior courts as the ‘bundle of essential facts which is necessary for the plaintiff to prove before he can succeed in the suit.’ It not only includes the facts necessary to support the plaintiff’s title but also the facts which entitle him to relief against a particular defendant. ‘Cause of action’ as is held in Barikara Narasayya v R. Basavana reported in (1985) 2 Civ LJ 649, ‘ means all that bundle of facts which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court’.
In the instant suit no ‘cause of action’ appears to have been disclosed so as to support the plaintiff’s right to the judgment they ask for. The piece of an olden dakhila of 1944 which remains to be the sole basis of the title of the plaintiffs, even if proved on oath, cannot stand the test of credibility after so long years. The piece of dakhila even if taken to be true does not outweigh the preponderance of probabilities weighing in favour of the Government and other private defendants who are admittedly in possession of the suit land for decades by virtue of their continuous possession and title documents like registered deeds. A piece of private dakhila allegedly issued by an erstwhile Zamindar in 1944 can hardly, if ever, carry the suit through and finally bring success for the plaintiff. It is in the sense that the plaint does not disclose any ‘cause of action’ and the suit is virtually vexatious and meritless and the end result of the suit by the same token is clearly foreseeable.
Taking cue from Burma Easter case (supra), it may also be said the plaintiff’s claim does not constitute ‘any right to property’ of ‘legal character’ as contemplated in Section 42 of the Specific Releif Act for each and every claim of property does not give rise to a cause of action for a law suit. This has found more appropriate expressions in the language of Murshed, J in Burma Easter case: –
“ ……Mere wishing to claim a property- long occupied by the government under the claim of title and other individuals, if any, under the color of title- on the basis of a scrap of paper representing a transactions between two or more private individuals long ago unsupported by any act of possession does not constitute cause of action and in that sense the suit would be barred under law, although strictly speaking, it may not be specifically barred by law.”
The question of want of cause of action apart, we have reasons to hold that the suit itself is frivolous designed to grab government property and it has no prospect whatsoever to succeed. It is in that sense that the plaint may be rejected in exercise of our inherent power under section 151 of the Code.
From our discussions made above we are of the view that this is eminently a fit case for rejection of plaint though not strictly under Order XII rule11 of the Code, in exercise of our inherent power under section 151 of the Code. The rule is accordingly discharged and the plaint of the suit is rejected. The order of stay earlier granted is hereby vacated. There shall, however, be no order as to cost.
Before we part with the case, we wish to leave an observation that, as is borne out by records, there was an investigation earlier initiated by CID on suspicion of some foul play at the behest of land-grabbers syndicate active around the city courts. For reasons not known the investigations faded into silence. We are of the view that the investigation may further be initiated to ascertain the identity of the plaintiff-petitioners and of the giant design to grab, if at all, such a huge tract of land in the city centre.
Communicate a copy of the judgment at once.
Sheikh Abdul Awal, J.
I agree.