Jabbar Jute Mills Ltd Vs. Md. Abul Kashem & another

Appellate Division Cases

(Civil)

PARTIES

Jabbar Jute Mills Ltd………… Appellant.

-Vs-

Md. Abul Kashem & another ………. Respondents

Md. Ruhul Amin J

M.M. Ruhul Amin J

Md. Tafaz/ul Islam J

Judgment Dated:19th June 2005

Danish Ali and others Vs. Sakina Bai and others reported in 4 BLD (AD) 68

Declaration of title and recovery of khas possession of the second schedule land claiming title and ownership of the land……………. (2)

It further appears from schedule-2 of the plaint that the suit land has not been properly described and depicted and the same is not identifiable in the locality. Hence local investigation was essentially required for ascertaining the identity and location of the suit land by a survey knowing Advocate Commissioner. The trial court ought to have done this before passing the decree because no decree can be passed for vegue and unidentified land because in that case the decree would be rendered infructuous and a court of law is not supposed to pass an infructuous decree. ………………(7)

We are of the view that to ascertain the identity and location of the suit land holding local investigation of the suit land by a survey knowing Advocate Commissioner is essentially required. Accordingly the High Court Division was not justified in summarily allowing the revisional application and setting aside the impugned order of the appellate court. In this connection the case of Danish Ali and others Vs. Sakina Bai and others reported in 4 BLC(AD) 68 may be referred to. In that case it was held that the High Court Division cannot grant full relief by way of disposing a revisional application summarily without issuing any Rule and behind the back of the affected party without affording any opportunity to place his case which is neither legal nor fair. …………………(8)

Md. Waliitl Islam, Advocate-on-Reeord. …………For the Appellant

Respondents …………………Ex-parte.

CiviLAppcal No. 197 of 2003

(From the judgment and order dated 08.06.2002 passed by the High Court Division in Civil Order No.4005 of 2002.)

JUDGMENT

M. M. Ruhul Amin J: This appeal by leave is directed against the judgment and order dated 08.06.2002 passed by a Single Bench of the High Court Division in Civil Revision No.4005 of 2002 allowing the revisional application summarily.

2. Short facts arc that the plaintiff instituted Other Class Suit No.39 of 1998 in the Court of Senior Assistant Judge, Kishoreganj Sadar for declaration of title and recovery of khas possession of the second schedule land claiming title and ownership of the land. The suit was contested by the defendant, by filing written statement denying the material allegations made in the plaint. The trial court by judgment and decree dated 29.10.2000 decreed the suit against which the defendant preferred Other Class Appeal No. 360 of

2000 before the learned District Judge, Kishoreganj. The Appeal on transfer was heard by the learned Additional District Judgmc, 2nd Court, Kishoreganj and in the appeal the appellate court by a suomotu order dated 23.04.2002 directed for holding local investigation and further directed the plaintiff to pay a sum of Tk. 1,000/- as commission fee. Being aggrieved the defendant preferred civil re visional application before the High

Court Division and the High Court Division by the impugned order allowed the rcvisional application summarily without issuing a Rule.

3. Leave was granted to consider the submission that the High Court Division should have passed the impugned order by issuing a Rule upon hearing the present appellant who was opposite party before the High Court Division and hence the appellant was prejudiced by the impugned order at the High Court Division which has been passed against him and without hearing him by setting aside the order of the appellate court and the same order was passed without giving a chance to the appellant to submit his case before the High Court Division and the further submission that by summarily allowing the rcvisional application, the High Court Division practically gave substantive

relief sought in the rcvisional application and hence the High Court Division erred in law in passing the impugned judgment and order.

4. We have heard Mr. Md. Waliul Islam, the learned Advocate-on-Rccord for the appellant and perused the judgment of the High Court Division and other connected

papers.

5. He submits that from the plaint it is clear that the plaintiff has made specific prayer for recovery of khas possession in respect of schcdule-2 land and the suit was decreed accordingly and further submitted that the plaintiff never prayed for holding local investigation before the appellate court and as such the appellate court was not correct in making order of its own for •holding of local investigation and as such the impugned order cannot be sustained.

6. On perusal of the plaint it appears that the land for which the plaintiff prayed for

recovery of khas possession has been described in schedule- 2 to the plaint and the trial court in the order portion of the judgment clearly gave direction for holding local investigation of the suit land within 30 days from date of passing the judgment by a survey knowing advocate coimmissioncr to ascertain the identity and location of the suit land for which recovery of khas possession was prayed for.

7. It further appears from schedule-2 of the plaint that the suit land has not been properly described and depicted and the same is not identifiable in the locality. Hence local investigation was essentially required for asccrlaining the identity and location of the suit land by a survey knowing Advocate Commissioner. The trial court ought to have done this before passing the decree because no decree can be passed for vegue and unidentified land because in thai case the decree would be rendered infructitous and a court of law is

not supposed to pass an inlYuctuous decree.

8. In that view of the matter, we arc of the view that to ascertain the identity and location of the suit land holding local investigation of the suit land by a survey knowing Advocate Commissioner is essentially required. Accordingly the High Court Division was not justified in summarily allowing the revisional application and setting aside the impugned order of the appellate court. In this connection the case of Danish Ali and others Vs. Sakina Bai and others reported in 4 BLC(AD) 68 may be referred to. In that case it was held that the High Court Division cannot grant full relief by way of disposing a revisional

application summarily without issuing any Rule and behind the back of the affected party without affording any opportunity to place his case which is neither legal nor fair.

9. In view of the discussion above, we arc of the view that the High Court Division committed error of law in summarily allowing the revisional application without issuing a Rule in the facts and circumstances ol the present case and as such the same requires interference by us.

10. The appeal is accordingly allowed and the matter is sent back on remand to the appellate court to dispose of the appeal after ascertaining identity and location of the suit land by local investigation by a survey knowing advocate commissioner as was ordered by the appellate court on earlier occasion. In the circumstances we make no order as to costs.

Source : V ADC (2008),598

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