Jahanara Begum ors. Vs. Hazera Khatun ors

Appellate Division Cases

(Civil)

PARTIES

Jahanara Begum being dead his heirs: Sheikh Shahnaz Begum and others Appellants in C.A.No. 438 of 2001 Kazi Ashrafuddin Ahmed …………………Appellant in C.A. No.

439 of 2001

-vs-

Hazera Khatun being dead her heirs: Md. Aminul Haque and others Respondents in both the Appeals

JUSTICE

Moinur Reza Chowdhury C J

Mohammad Fazlul Karim J

Abu Sayeed Ahammed J

JUDGEMENT DATED : 12th May 2003

Specifice performance of contract in respect of an agreement for sale.

43 DLR (AD) 107

High Court Division committed grave illegality in striking out the names of the petitioners of civil revision and transposing the respondents as the petitioners who are not parties to the suit itself nor assignees in the same and allowing them to proceed with the revisional application. It also submitted that the High Court Division failed to consider that a person who is not a party in the suit is not entitled to file such an application as a stranger can not be allowed to proceed with such a revisional application. It is also submitted that respondents being not parties to the suit and the rule having arisen out of an order passed by the Subordinate Judge allowing the prayer for amendment of the written statement, they do not have any locus standi to contest the impugned order and in that view of the matte (6)

T. H. Khan, Senior Advocate, (Mr. A. Quayum, Advocate with him), instructed by Md. Aft ah Hossain, Advocate-on-Record For the Appellants (in C.A. No. 438 of 2001)

Mahbubex Alam, Senior Advocate, instructed bx A.S.M. Khalequzzaman, Advocate-on-Record For the Appellant (in C.A. No. 439 of 2001)

Md. Fazlul Karim, Senior Advocate,instructed by Fakhrul Islam, Advocate-on-Record For

Civil Appeal Nos. 438 and 439 of 2001

(From the Judgment and Order dated 22 November 2000 dated 24.01.2001 passed by the High Court Division in Civil Revision No. 1967 of 1999).

Respondent No. 1 (in C.A. No. 438 of 2001) Md. Fazlul Karim, Senior Advocate, instructed bv Fakhrul Islam, Advocate-on-Record For Respondent Nos. 1, 2 and 4 (in C.A. No. 439 of 2001)

A.S.M. Khalequzzaman, Advocate-on-Record For Respondent Nos. 2-6 (in C.A. No. 438 of 2001) Not represented Respondent Nos. 7-9 (in C.A. No. 438 of 200) Not represented Respondent Nos. 3, 5-10 (in C.A. No. 439 of 2001)

JUDGMENT

1. Mohammad Fazlul Karim J:- These appeals by leave are directed against the impugned judgment and order passed by the High Court Division in Civil Revision No. 1967 of 1999.

2. The facts relevant for disposal of these appeals are that appellant in Civil Appeal No. 438 of 2001 as the plaintiff instituted Title Suit No. 27 of 1976 in the 3™ Court of Subordinate Judge, Dhaka for specific performance of contract against the present respondent No. 8 who allegedly entered into a contract for sale of the suit property on 12.9.1979 receiving an earnest money of Tk. 30,000/- out of a total consideration of Tk. 1,50,000/- and when respondent No. 8 tried to avoid execution and registration of the sale deed the appellants had to file the aforesaid suit.

3. The appellant in Civil Appeal No. 439 of 2001 was defendant No. 3 in the suit who filed the written statement stating, inter alia, that while he was a monthly tenant in part of the suit premises the original owner respondent No. 8 entered into a written agreement with him for the sale of the premises on 21.4.1968 and received a sum Tk. 1,50,000/- out of Tk. 3,50,000/-. His further case is that in Title Suit No. 53 of 1973 he got a decree of permanent injunction.

4. Respondent No. 8, the original owner of the suit property by filing a written statement denied the contract with the appellants ors. (Mohammad Fazlul Karirn J) ill ADC (2006) stating that the alleged Bainapatra dated 12.9.1970 is false, ante-dated and fraudulently created.

5. Title Suit No. 27 of 1976 was decreed exparte on 5.1.1985 and the Kabla was executed and registered through the Court. The respondent Nos. 1-6 , however, purchased the suit land from the plaintiff Jahanara Begum but meanwhile respondent No. 7 the appellant in Civil Appeal No. 439 of 2001 filed Miscellaneous Case No. 1 of 1996 under Order 9 Rule 13 of the Code of Civil Procedure and upon contested hearing Miscellaneous Case was allowed setting aside the said exparte decree. The said appellant on 5.4.1998 filed an application before the trial Court under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the written statement by inserting two paragraphs therein and upon hearing the parties the trial Court allowed the said prayer by order dated 27.5.1999. The appellant in Civil Appeal No. 439 of 2001 moved the High Court Division in Civil Revision No. 1967 of 1999 against the said impugned order dated 27.5.1999 whereupon the rule was issued with an ad-interim order of stay of all further proceeding of the said Title Suit. The said appellant, however, in order to get the suit disposed of expeditiously instructed to get the rule discharged for non-prosecution and accordingly filed an application on 14.11.2000 praying for discharging the rule for non-prosecution. The respondent Nos. 1-6 who were third party to the suit filed an application before the High Court Division praying for adding them to be defendants in Title Suit No. 27 of 1976 and opposite parties in Civil Revision claiming that their predcccssor-in-intcrcst Hazera Khatun entered into an agreement for sale with said Jahanara Begum on 11.11.1995 and therefore they are necessary parties in the suit as well as in the civil revision and both the petitions came up for hearing on 22.11.2000 before the Court Division but the application of the appellant for discharging the rule was rejected as the same was not accompanied by any affidavit in support of the application. Thereafter both the appellants Jahanara Begum and Kazi Ashrafuddin Ahmed filed an application for discharging the rule for non-prosecution so that the original suit may be disposed of early and upon hearing, the same was rejected by the High Court Division while allowing an application of the respondent nos. 1-6 filed in the High Court Division for transposing them as the petitioners in the Civil Revision alleging that they will suffer irreparable loss and injury, if the rule was discharged for non-prosecution. The High Court Division after hearing the parties struck out the names of the appellants from the civil revision and transposed the respondent Nos. 1-6 as the petitioners in their place.

6. Thereafter the appellants filed the petition for leave to appeal against the said impugned order whereupon the leave was granted to consider the submission of the learned Counsel for the appellants that the High Court Division committed grave illegality in striking out the names of the petitioners of civil revision and transposing the respondents as the petitioners who are not parties to the suit itself nor assignees in the same and allowing them to proceed with the revisional application. It also submitted that the High Court Division failed to consider that a person who is not a party in the suit is not entitled to file such an application as a stranger can not be allowed to proceed with such a revisional application. It is also submitted that respondents being not parties to the suit and the rule having arisen out of an order passed by the Subordinate Judge allowing the prayer for amendment of the written statement, they do not have any locus standi to contest the impugned order and in that view of the matter, the learned Judges of the High Court Division fell into an error in transposing them as the petitioners striking out the names of the original petitioners who are none else than the plaintiffs and as such the impugned order is not sustainable in law. It is also submitted that the High Court Division totally misconceived the provision of law as regards transposition of the parties and in the facts and circumstances of the instant case particularly when the added respondents claimed that the plaintiff-appellants entered into a contract with them for selling the suit property after the suit was decreed on 5.1.85 as the so-called contact has nothing to do with the subject matter of the present suit. It is submitted that when the plaintiff-appellants prayed for discharging the rule for nonprosecution a third party-respondents having no interest in the suit property cannot be allowed to proceed with the revisional application and the learned Judge of the High Court Division erred in law in striking out the names of the plaintiff-appellants from the rule petition upon rejecting their prayer for discharging the rule for nonprosecution, instead in their place transposing the strangers to the suit.

7. Mr. T.H. Khan the learned Counsel appearing for the appellants in Civil Appeal No. 438 of 2001 and Mr. Mahbubey Alam the learned Counsel appearing for the appellants in Civil Appeal No. 439 of 2001 have submitted that the High Court Division acted illegally in stricking out the names of the rule petitioners namely Jahanara Begum and Sheikh Shahnaz Begum, the appellants while transposing the respondent Nos. 1-6. the third parties who were not parties to the suit and were not entitled to file such application as the stranger cannot be allowed to proceed with the revisional application against the order passed by the Subordinate Judge allowing the prayer for amendment of the written statement filed by the appellants in Civil Appeal No. 439 of 2001 as they had no locus stand to contest the said order inasmuch as the High Court Division totally misconceived the provision of law as regards the transposition of the parties in the facts and circumstance of the case particularly when the added respondent claimed that the plaintiff-appellants entered into an agreement with them for sale after the suit was decreed as the so-called contract has nothing to do with the subject matter of the present suit inasmuch as the said exparte decree on the basis of which the added respondents entered into an agreement with plaintiff of the suit was set aside and the suit was restored to its original file and number allowing the parties to the suit to proceed with the same in accordance with the law. The learned Counsels have further submitted that when the third party respondents have not acqured any interest to the suit land could not be allowed to proceed with the revisional application striking out the names of the original petitioner, plaintiff-appellant and in its place transposing the name o\’ the respondents Nos. 1-6 who were admittedly no parties to the suit.

8. Mr. Md. Fazlul Karim, the learned Advocate appearing for the respondents in both the appeals has however submitted that respondent Nos. 1-6 having been entered into an agreement dated 11.11.95 to purchase the suit land with the appellant Jahanara Begum pursuant to an exparte decree could always impleaded as the defendant or the co-plaintiffs -where it is necessary for a complete adjudication upon the question involved in the suit and to avoid multiplicity of the proceeding under the provision of order 1 rule 10(b) of the Code of Civil Procedure. The learned Counsel has further submitted that the withdrawal of the civil revision and discharge the rule for non-prosecution against an order allowing amendment to the written statement by the appellant in Civil Appeal No. 439 of 2001 smack a foul play on the part of the Jahanara Begum, the plaintiff-appellant and others in Civil Appeal No. 438 of 2001 of an unholy alliance of non-prosecution with the suit to the prejudice of the interest of the respondent Nos. 1-6.

9. Admittedly the suit has been filed by the appellant Jahanara Begum and other for specific performance of contract in respect of an agreement for sale dated 12.9.79 against respondent No. 8 on receipt of Tk. 30,000/- out of total consideration of Tk. 150,000/= and respondent No. 7 who was impleaded in the suit is the monthly tenant in the part of the suit land under the owner respondent No. 8 has allegedly entered into an agreement for sale of part of the suit land on the basis of an agreement dated 21.4.1968. The said respondent No. 7 filed Title Suit No. 53 of 1973 which was decreed and pursuant to which obtained kabala executed and registered through Court. The said respondent No. 7 the appellant in Civil Appeal No. 439 of 2001 has entered appearance in the suit and filed written statement. It appears that after lapse of considerable period of time the respondent No. 7 filed an application for amendment of the written statement which was allowed by order dated 27.5.1999 against which the appellant and other filed revisional application in the High Court Division upon which a rule being Civil Revision No. 1967 of 1999 was issued together with ad-interim order of stay all further proceeding of the suit. It appears that the said appellant filed an application on 14.11.2000 praying for discharge of the rule for non-prosecution to enable them for early disposal of the suit and in the rule the present respondent Nos. 1-6 as the third parties filed an application before the High Court Division for transposition of the opposite party in the civil revision claiming that their predecessor entered into an agreement for sale with Jahanara Begum and as such they are necessary parties in the suit as well as in the civil revision and for transposing their names as the petitioners in the rule application while striking out the names as the petitioners in the civil revision. The same having been allowed the appellants moved this Court and leave as aforesaid was accordingly granted.

10. Admittedly the respondent Nos. 1-6 are not parties to the suit nor they have had yet acquired any right, title, interest in the suit land on the basis of alleged agreement with the plaintiff dated 11.11.1995 pursuant to an exparte decree dated 5.1.1985. Apart from the principle of dispendens the respondent Ns. 1-6 have not acquired any right, title, interest in the suit land. A person could only be impleaded as party to the suit under the provision of order 1 rule 1 of the Code of Civil Procedure which reads as under”

” All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise.”

11. From the above a person to be joined in a suit as the plaintiff is subject to two conditions, the right to relief must n each case be in respect of or arise out of the same act or transaction or series of acts or transactions alleged to exist, whether jointly, severally or in the alternative and where, if such persons brought separate suits, any common question of law or fact would arise.

12. Similarly, under the provision of order 1 rule 3 of the Code of Civil Procedure all persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise.

13. Thus, the relief in respect of which parties may be joined must be relief arising out of the same set of circumstances or circumstances involving a common question of law or fact. It is, however, desirable to read Order 2 Rule 3 of the Code of Civil Procedure i.e. joinder of causes of action as both Order 1 rules 1 and 3 of the Code of Civil Procedure deal also to some extent with the joinder of causes of action.

14. Under the provision of Order 1 Rule 10(b) of the Code of Civil Procedure the Court may strike out or add any parties as may appear to the Court to be just whether as the plaintiff or the defendant whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.

15. Respondent Nos. 1-6 though alleged to have entered into an agreement for sale dated 11.11.1995 pursuant to an exparte decree in respect of the suit dated 5.1.1995 which has been set aside subsequently, could by no stretch of imagination could claim any right to relief to enforce the cause of action in respect of the suit either as a plaintiff or as a defendant and as such they could neither be a proper nor necessary party to the suit whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settled the question involeved in the suit.

16. The suit is a suit for specific performance of contract between the plaintiff and the defendant. Respondent Nos. 1-6 have alleged an agreement for sale between the plaintiff of the suit for specific performance of contract and themselves but the plaintiff has not yet acquired any right, title and interest in the suit land on the basis of his agreement for sale in respect of the suit land.

17. In the instant suit for specific performance of contract the respondent Nos. 16 have no right to relief for setting up an independent claim of title to the land beyond the cause of action of the suit which will disentitle them to be included in the suit within the frame of the present suit wherein the rule in question is to be determined where the contract for sale was challenged/disputed and where on the basis of the pleading of the parties thereof the plaintiff is entitled to get a decree.

18. In the case of Golam Kader Vs. Abdul Khaleque Choukder reported in 43 DLR (AD) 107 which arose out of a suit for Specific Performance of Contract in which the appellant filed an application under Order 1 rule 10 of the Code of Civil Procedure stating that they are the plaintiffs in Title Suit No.^ of 1969 that the plaintiffs of the present suit for Specific Performance of Contract created a collusive document in order to grab the property of Title Suit No. 7 of 1969 and further stating that they are necessary parties in the present suit and as such they should be added as defendants in the suit for ends of justice. It have been held in the aforesaid decision that:

“The present appellants are not claiming through the defendants of the present suit. They have set up an independent title of their own. Their averments in the application for addition of party of the present suit. That will covert the present suit for specific performance of contract into a suit for determination of title which is not permissible in law. The learned Single Judge of the High Court Division rightly found that the present appellants are not necessary parties for complete and effectual adjudication of the issues involved in the present suit.”

19. Mr. Md. Fazlul Karim, the learned Counsel appearing for the respondents, however, referred to the decision in the case reported in AIR 1931 PC 162 for the proposition that under Order 1 Rule 10 of the Code of Civil Procedure the Courts adding a defendant as the plaintiff should always be adopted where it is necessary for a complete adjudication upon the question involved in the suit and to avoid multiplicity of the proceeding.

20. The said proposition is not disputed but as has been stated above, in the facts and circumstances of the case the said decision has no manner of application.

21. The respondent Nos. 1-6 would have no cause for concern to proceed with the instant suit in order to secure their interest on the basis of their alleged agreement with the plaintiff of the instant suit and in case the plaintiff did not proceed with the suit before the trial Court, the respondents may have a cause to be impleaded in the suit and to get themselves transposed as the plaintiff in the suit.

22. Admittedly the respondent Nos. 1-6 who are strangers to the instant suit could not proceed with the revisional application against the order passed allowing the amendment of the written statement having no locus standi/cause to contest the same. Furthermore, the plaintiff allegedly entered into an agreement for sale of the suit land obtaining an exparte decree for specific performance. Since the said decree has been set aside and the suit has been restored to its original file and number, until a decree is passed in favour of the plaintiff, no right would accrue to the respondent Nos. 1-6 over the suit land for enforcement of their alleged right under the agreement for sale with the plaintiff. They at the relevant time, being totally the strangers to the instant suit could neither be a party to the suit or entitled to be transposed as the petitioner in the revisional application to proceed with the rule as they have no right to relief whatsoever therein.

23. For the reasons stated above, the impugned order is not sustainable in law and the same is accordingly set aside. In the result the appeals are allowed but without any order as to costs.

Ed.

Source : III ADC (2006), 137.