Jamuna Knitting Vs. Messcrs Yunusco

Appellate Division Cases

(Civil)

PARTIES

Jamuna Knitting and Dyeing Limited and another ………………..Petitioners

-vs-

Messcrs Yunusco K. Textile Ltd. and others ……………………..Respondents

JUDGES

Mohammad Fazlul Karim J (In both the cases)

M. A. Aziz J

Amirul Kabir Chowdhury J

Date of Judgment

23rd March 2005

A case of pre-emption case under Mahamadan law. The Pre-emption was allowed and the

The pre-emptor forcibly took possession of the suit land alleging that the land was vacant and they entered into possession. The pre-emptor without any order from the court took possession of the suit land by dispossessing the appellant while the appeal was pending. Furthermore, the appellant prayed for stay of operation of the impugned judgment and order and considering these facts the High Court Division made the rule absolute and directed the pre-emptor to hand over possession to the pre-emptee within 15 days failing which the trial court was directed to restore possession of the preemptee (2)

ADVOCATES

Khondker Mahbubuddin Ahmed, Senior Advocate (With S. M. Munir, Advocate), instructed Md. Jainal Abedin, Advocate-onrecord For the Petitioners (In both the cases) A. F Hassan Ariff, Senior Advocate, instructed by Mrs. Sufia Khatun, Advocateon-Record For Respondent No. 1 (In both the cases) ‘ Not Represented Respondent Nos.2&3 (In both the cases)

JUDGMENT

1. M. A. Aziz, J : These two petitions for leave to appeal at the instance of Jamuna Knitting and Dyeing Limited and another is from the judgment and order dated 13.12.2004 passed by a Division Bench of the High Court Division in Civil Rule Nos. -4 638 (F) and 639 (F) of 2004 making the rule absolute and direction the petitioners to hand over possession of the suit property to the respondent within 15 days failing which the trial court is to restore immediate possession of the suit properly to the respondent by evicting the petitioner.

2. Facts leading to the leave petition are that the petitioner Jamuna Knitting and Dyeing Limited and another filed a preemption case under Mahamadan law against the respondent Messers Yunusco K. Textile Lid. The Pre-emption was allowed and the trial court directed the opposite party pre-emptee) to hand over possession of the case land the pre-emptor and thus being aggrieved the opposite party preferred first Appeal No. 234 of 2004 and during the pendency of the appeal the pre-emptor forcibly took possession of the suit land alleging that the land was vacant and they entered into possession. The pre-emptor without any order from the court took possession of the suit land by dispossessing

the appellant while the appeal was pending. Furthermore, the appellant prayed for stay of operation of the impugned judgment and order and considering these facts the High Court Division made the rule absolute and directed the pre-emptor to hand over possession to the pre-emptee within 15 days failing which the trial court was directed to restore possession of the pre-emptee.

3. Mr. Khondker mahbubuddin Ahmed, learned counsel for the petitioner submits that the possession was taken over on 30.8.2004 and the first Appeal was filed on 31.8.2004 when there was no appeal pending and as such the High Court Division erred in holding that the suit was pending when pre-emptor dispossessed the other side during the pendency to the appeal. He further submits that the validity of otherwise of taking possession was subjudice before the court and the High Court Division erred in exercising the power under section 151 of the code of Civil Procedure when exercise of power under section 144 was not possible and that the respondent with malafide intention suppressed the facts in the application for restoration of possession. We find no merit in the submissions of the learned counsel. Accordingly, both the petitions are dismissed

Source: III ADC (2006) 632

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