Irfan Sayed (Md Vs. Mrs. Rukshana Matin and others

Irfan Sayed (Md (Appellant )

Vs.

Mrs. Rukshana Matin and others (Respondent)

 

Supreme Court

Appellate Division

Civil

JUSTICE

ATM Afzal CJ

Mustafa Kamal J

Latifur Rahman J

Md. Abdur Rouf J

Judgment : April 2nd, 1996.

Lawyers :

M A Malek, Senior Advocate (KZ Alan, Advocate with him), instructed by Sharifuddin Chaklader, Advocate-on-Record — For the Appellant.

Shafique Ahmed, Advocate, instructed by Md. Nawab Au, Advocate-on-Record — For the Respondent No.1.

Not represented Respondent Nos. 2 and 3.

Civil Appeal No. 31 of 1995.

(From the Judgment and order dated 5th April, 1995 passed by the High Court Division, Dhaka in Civil Revision No. 4002 of 1994).

JUDGEMENT

        Latifur Rahman J: This appeal by plaintiff appellant is directed against the judgment and order dated 5.4.95 passed by a Single Judge of the High Court Division in Civil Revision No.4002 of 1994 rejecting the plaint of Title Suit No. 354 of 1994 after setting aside the judgment and order dated 23.11.1994 passed by the Senior Assistant Judge, 5th Court, Dhaka refusing to reject the plaint under Order 7 rule 11 of the Code of Civil Procedure.

2. The plaintiff instituted the Title Suit praying for a decree for mandatory injunction directing the defendants to send his minor son Md. Ibraaz Syed to his residence at No. 405 E, Road No. 27 (Old), Dhanmondi Residential Area, PS Dhanmondi, Dhaka in terms of the agreement dated 21.8.94 entered into by and between the plaintiff and defendant-respondent No.1, inter alia, on the averments as under.

3. The plaintiff married defendant No.1 on January 10,1991 and they were blessed with a male-child on 24.11.91, who was named Md. Ibraaz Syeed, subsequent thereto the plaintiff left for the United States of America on 3.12.92 for higher studies and after successful completion of his studies he returned home on May 31, 1994. During his absence from Bangladesh defendant No.1 together with her minor child were staying at the residence of her parents namely, defendant Nos. 2 and 3. Plaintiff after his return visited his minor son only on 3 occasions in the house of defendant No.1 Then on 6.6.1994 when the plaintiff again went to see his minor son in that house, he was not allowed to see the child. Rather, defendant No.1 insulted him. Since 1.6.94 defendant No.1 did not allow the plaintiff and any member of his family to see the child. She did not also send the child to the house of the plaintiff to enable him and other members of his family to see the minor child. Thereafter defendant No.1 sent a notice to the plaintiff informing that she dissolved the marriage exercising her delegated power of divorce and to the same effect she also sent notice to the Mayor of the Dhaka City Corporation in accordance with the provisions of the Muslim Family Laws Ordinance, 1961. In such circumstances on the intervention of the common relations, friends and their lawyers a written agreement was made and executed by and between the plaintiff as First Party and Defendant No.1 as Second Party on 21.8.94, of which paragraph 4 reads as follows:

“(4) The parties hereto agree that the care and custody of the child will now belong to Second Party according to her rights under the law, provided, however, that the First Party shall have visiting rights as mentioned herein. Such visiting rights of the first party shall be exercised by the First Party by having the child sent over to his residence at 405E, Road No. 27 (Old) Dhanmondi Residential Area, Dhaka three days a week for about 3 hours each time as follows by the Second party in her transport:

Monday :    10-00 AM to      1-00 PM approximately

Tuesday :   10-00 AM to     1-00 MP  approximately

Thursday :  10-00 AM to    1-00 PM approximately

The days, hours and/or duration mentioned herein above are agreed keeping in view the meal time of the child and the same may be extended, varied and altered by mutual agreement. Similarly, once the child starts attending the school the days, hours and/or duration as mentioned herein above may also be varied and or changed by mutual agreement. The second party shall also send the child to the First Party for such visit on his birthday. The first party shall ensure that the child returns to the second party safe and sound after each and every such visit. The first party does hereby agree and undertake that he shall not himself or through his agents or servants take out of the house or attempt to take the child out of Bangladesh. The second party shall not have any objection to send the child to the residence of the First Party as mentioned hereinabove during the visit or stay or presence of his parents at such residence. In the event the first party is absent from Bangladesh, his parents shall have the visiting rights as above.”

After the execution of the agreement defendant No.1 resiled from it and despite her agreement that she would send the child to the residence of the plaintiff on the agreed dates she did not send the child nor she informed the plaintiff of any other agreement in this regard. Defendant No.1 having prevented the plaintiff from seeing the child and he being the legal and natural guardian and being entitled to see the child under the agreement, filed the suit with a prayer, amongst others, as under:

“A. A decree of mandatory injunction be passed directing the defendant No.1 and defendant Nos.2 and 3 to send the child Mohammed Ibraaz Syed, son of the plaintiff, living under the custody of the defendant No.1 and living at 11/18 Iqbal Road, Block ‘A’, Mohammadpur, Dhaka, to the plaintiffs house on the days and during the hours as agreed to between the plaintiff and the defendant No.1 and as incorporated in the agreement dated 21.8.94, i.e. on every Monday, Tuesday and Thursday from 10-00 AM to 1-00 PM at least.”

After filing of the suit the plaintiff filed an application on 31.10.94 under Order 39 rules 1 and 2 of the Code of Civil Procedure for temporary mandatory injunction directing defendant No.1 to send the child to the residence of the plaintiff on days and time as per the terms of the agreement dated 21.8.94 till disposal of the temporary injunction matter with an ad interim prayer.

4. The learned Subordinate Judge fixed 23.1.94 as the date for hearing of the temporary injunction matter. On that day defendants filed an application under Order 7 rule 11 of the Code of Civil Procedure for rejection of the plaint on the ground that the suit should have been filed before the Family Court as it was triable exclusively by that court under section 5 of the Family Courts Ordinance, 1985 as the civil Court had no jurisdiction to try the suit.

5. The trial Judge by his order No. 10 dated 23.11.94 rejected the petition for rejection of the plaint.

6. Thereafter on the same day he took up the application for temporary mandatory injunction matter for hearing and upon hearing the learned Advocate for both parties, the trial Judge by Order No. 11 dated 23.11.94 issued ad interim injunction directing the defendants to send the son to the residence of the plaintiff twice instead of thrice a week, on Fridays and Mondays from 10 AM to 1.30 PM as already agreed to by them in the said agreement dated 2 1.8.94.

7. Against Order No. 10 dated 23.11.94 the defendants filed a revision, being Civil Revision No. 4002 of 1994, before the High Court Division and obtained Rule and stay of further proceeding of the suit. Thereafter the plaintiff filed an application for vacating the order of stay and the learned Single Judge of the High Court Division after hearing both sides modified the stay order by issuing direction upon the defendants to send the minor child once a week i.e. every Friday at 10 AM in place of 2 days as directed by the Senior Assistant Judge, Dhaka.

8. At the final hearing of the Rule the learned Single Judge of the High Court Division rejected the plaint of title Suit No. 354 of 1994 and made the Rule absolute with cost of Taka 1,000.00 after holding, inter alia, that under the settled principle of law the mother was the exclusive guardian and custodian of the minor, that the temporary shifting of the child to the custody of father will go against the principle of law, that it will badly affect the mental development of the child and also disturb the natural life of the mother, that the agreement was void under section 23 of the Contract Act, that there cannot be a compelling force of law with the I direction in the nature of mandatory injunction, that J the arrangement between the parties was not permissible in law due to public policy and that if any right of any of the parties is violated which is guaranteed by the Constitution in derogation of the 1 fundamental law it cannot be enforced.

9. Leave was granted to consider whether the learned Single Judge of the High Court Division upon a total misconception of the plaintiffs case and the law governing the subject, namely, Order 7 rule 11 of the Code of Civil Procedure wrongly rejected the plaint to the great prejudice of the appellant and whether the reasons given by the learned Judge are tenable in law and extraneous to the question at issue causing failure of justice. Leave was also granted to consider whether on the averments made in the plaint and the prayer made in the suit, the same was liable to be filed in the Family Court, which was neither considered nor found in favour of the defendants by the learned Judge.

10. In the plaint, it has been stated that the plaintiff and defendant No.1 were married on 10.01.91 and out of this wedlock the male child Mohammed Ibraaz Syed was born on 24.11.91. Defendant No.1 in exercise of her delegated authority divorced the plaintiff on 7.6.94. At the intervention of friends and elders an agreement was made on 2 1.8.94 wherein it has been agreed that the plaintiff will have the right to see his son thrice in a week, namely, Monday, Tuesday and Thursday from 10 AM to 1.00 PM. This visiting right continued for sometime and thereafter defendant No.1 did not comply with the terms of the agreement as entered into between the parties. In such circumstances, the suit was filed with a prayer for a decree of mandatory injunction with ad interim prayer for enforcement of the agreement dated 21.8.94 for allowing the plaintiff to see his son on the days as mentioned in the agreement. From the averments in the plaint of the suit and from the prayer it is palpably clear that the plaintiff only prayed for enforcement of the visiting rights of his son for a temporary period for 3 days in a week. In the four corners of the plaint nothing has been stated claiming guardianship and custody of the child. Further, in the aforesaid agreement it has been specifically mentioned that the custody of the child will remain with the mother according to her rights under the law. The plaintiff only prayed for his visiting rights by having the child sent over to the residence of the plaintiff and nothing beyond that. In this connection a reference may be made to Order 7, rule 11 of the Code of Civil Procedure wherein a plaint can be rejected only on the following grounds—

“(a) Where it does not disclose a cause of action;

(b) Where the relief claimed is under valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the court fails to do so;

(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court fails to do so;

(d) Where the suit appears from the statement in the plaint to be barred by law.”

There being nothing in the plaint to show that any of the provisions of Order 7 rule 11 of the CPC is attracted the learned Single Judge, in fact, acted wrongly in rejecting the plaint in law. The learned Single Judge held that the agreement entered into between the parties was void under section 23 of the Contract Act as opposed to Public-Policy. It will not be out of place to quote Section 23 of the Contract Act which reads as follows:

“23. The consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.”

The statements in the plaint if read with section 23 of the Contract Act shows that the agreement is not forbidden by law and it will not defeat any provision of law and it is neither fraudulent, immoral or opposed to public policy. This being the factual position it cannot be said by any stretch of imagination that the Contract entered into between the parties voluntarily giving the visiting rights to the plaintiff by sending the minor son to the plaintiff is void under any law. Hence under clause (d) or Order 7 rule 11 of the Code of Civil Procedure the plaint cannot be rejected on the ground that it is barred by law.

11. It appears that the learned Single Judge unnecessarily dealt with the question of welfare and mental development of the child with the issue of exclusive guardianship and custody of the minor child with the mother. The question of custody and guardianship was not at all an issue in the suit. It was filed only for enforcement of visiting rights of the plaintiff as agreed between the parties. Apart from this, the judgment is also evasive and inconclusive as because there is no reasonings as to how the agreement is void as opposed to Public Policy under section 23 of the Contract Act and as to why the suit ought to have been filed in the Family Court when there was no issue as to guardianship and custody of the child. The learned Single Judge considered some unwarranted and extraneous matters not relevant for disposal of the real issue involved in the suit. The learned Single Judge has failed to decide the case on proper understanding of the facts and relevant law applicable thereto. The learned Single Judge was so much swayed that in rejecting the plaint he also observed that the plaint should be rejected as it is barred by law and on equity and good “conscious”. The phrase “equity and good conscious”  are not in Order 7 rule 11 of the Code of Civil Procedure and as such the learned Single Judge wrongly imported this concept in the section which he was not permitted to do. The judgment of the learned single Judge suffers from irrelevant and rambling exercises bereft of legal acumen and hence the same is set aside.

In the result, the appeal is allowed without any order as to cost.

Ed.

Source : 48 DLR (AD) (1996) 134

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