Appellate Division Cases
(Civil)
PARTIES
Md. Marfat Ali Miah being dead his legal heir : Feroj A h a m m a d Bhulu ..Appellant
-Vs-
Sree Jagadish Chandra Sheel and others………………………………Respondents
JUDGES
Md. Ruhul Amin J
Md. Tafazzul Islam
Date of Judgment
12th March 2006
The Public Demands Recovery Act (PDR Act) Section 37, 48, 49.
The Specific Relief Act Section 42.
The Code of Civil Procedure Order 7, Rule 11.
Averments having been made in the plaint alleging fraud and malafide and that in the light thereof relief having been sought civil court is quite competent to investigate the question of fraud and malafide and the said allegation as can only finally adjudicate upon full dress hearing of he suit, the High Court Division was in error in rejecting the plaint upon an erroneous view that the suit is barred under section 37 of the PDR Act (10)
Whether third person in the auction proceeding and that also not being the representative of the parties in the auction proceeding and also not being an auction purchaser can move the Revenue authority seeking setting aside of the auction sale and thereupon how far the Revenue authority is competent to set aside the auction sale or in other words how far the Revenue authority is/ was within its jurisdiction in setting aside the auction sale at the instant of an stranger to the certificate proceeding (17)
Thus the application for setting aside the sale having been made by respondent No. 1 who has been found to be a person not legally interested in the property as such, the revisional authorities could not set aside the auction at the instance of a person who had no locus stand to apply in that regard (19)
ADVOCATES
Abdul Wadud Bhuiyan, Senior Advocate, instructed by Syed Mahbubar Rahman, Advocate-on-Record For the Appellant Md. Nawab Ali, Advocate-record For Respondent Nos. 1-2.Ahsanullah Patwary, Advocate-onrecord. For Respondent Nos.3-8
JUDGMENT
1. Md. Ruhul Amin J :- This appeal by leave is against the judgment dated November 12, 1998 of s Single Bench of the High Court Division in Civil Revision No. 3339 of 1992 making the Rule absolute and thereby allowing the prayer for rejection of the plaint of other Class Suit No. 82 of 1991 of the court of Senior Assistant Judge, Iswarganj, Mymensingh. The suit was filed seeking declaration that the order dated January 25, 1989 passed in Second Certificate Appeal No. 88 of 1984 by the Additional Divisional Commissioner, Dhaka Division, order dated August 22, 1989 by the Additional Divisional Commissioner, Dhaka Division Dhaka and the order dated March 14, 1991 passed in Certificate Appeal Case No. 2-42/89 passed by the Land Appeal Board, Dhaka are illegal, void, without jurisdiction and not binding upon the plaintiff.
2. The Second Certificate Appeal No. 88 of 1984 was filed against the order dated February 9, 1984 passed by the Additional Deputy Commissioner, Mymensingh in Certificate Appeal No. 3/77-78 dismissing the same. The Certificate Appeal No. 3/7778 dismissing the same. The Certificate Appeal No. 3/77-78 was filed for setting aside the auction sale of September 17,1964 in Certificate Case No. 1723(1) 63-64. The auction sale was confirmed on November 30, 1964 and the possession was delivered to the auction purchaser i. e. plaintiff, herein appellant, on January 17, 1966. The Certificate Case No. 1723(1) 63-64 was started in respect of the land of plot No. 1503 of Mouza Dattapara, Police Station Iswarganj, Mymensingh. The aforesaid plot was listed in C. S. khatian No. 264 and later on in S. A khatian No. 595.
3. It is the case of the plaintiff that after purchase of the land plot No. 1503 of S. A. khatian No. 595 (C. S. khatian No. 264) of Mouza-Dattapara, Poloce Station Iswarganj, Mymensingh he got delivery of possession of the auction purchased land on Jnauary 17, 1966 and since then possessing the land so purchased by himself and his lisencees.
4. The lisencees of the plaintiff approached the Additional Deputy Commissioner, Mymensingh for setting aside the auction sale of the land of plot No. 1503 in Certificate Case No. 1723 (I) 63-64 and thereupon Certificate Appeal No. 3/7778 was registered. The Additional Deputy Commissioner (Revenue) dismissed the said appeal. The lisencees of the plaintiff i. e. Respondent Nos. 1 and 2 herein, went on appeal before the Divisional Commissioner, Dhaka Division and the appeal was registered as Second Certificate Appeal No. 88 of 1984. The appeal was heard by the Additional Divisional Commissioner, Dhaka Division and the same was allowed upon setting aside the order dated February 9, 1984 of the Additional Deputy Commissioner. The plaintiff filed a review application and thereupon Certificate Review Case No. 16 of 1989 was registered.
The review was rejected. Then the plaintiff went on appeal before the Land Appeal Board, Dhaka in Certificate Appeal No. 2-42/89, Mymensingh. The Land Appeal Board dismissed the said appeal on January 14, 1991. Thereafter plaintiff filed the suit seeking the relief as stated hereinbefore. In the Court of Senior Assistant Judge, Iswarganj, Mymensingh the suit was numbered Other Class Suit No. 82 of 1991. The defendants, i. e. Respondent Nos. 1 and 2, entered appearance and filed written statement and thereafter filed an application on November 16, 1992 under Order 7, Rule 11 of the Code of Civil Procedure with the prayer for rejection of the plaint on the ground that the suit was not maintainable and that barred by section 42 of the Specific Relief Act and that the suit was also barred under Section 37 of the Public Demands Recovery Act (PDR Act) as well as under sections 48 and 49 of the PDR Act. The learned Assistant Judge upon hearing the parties by the order dated November 16, 1992 (Order No. 35 dated 11.16.1992) rejecting the application filed under Order 7, Rule 11 of the Code of Civil Procedure on the observation that in the suit serious question of law is involved and that without hearing the suit finally it would not be possible to arrive at a correct decision as regard the point of law involved in the suit and that as the suit is ready for hearing, as such point of law involved in the suit should be decided and disposed of at the final hearing.
5. As against the order of the learned Assistant Judge the Respondent Nos. 1 and 2 moved the High Court Division in revisional jurisdiction and obtained the Rule. In support of the Rule it was contended that the suit was wrongly entertained by he court of Assistant Judge since the orders as against which relief sought were passed by the Revenue Authority in connection with the sale held in execution of the order passed in the Certificate Case as per provision of the PDR Act and as such the learned Assistant Judge was in error in rejecting the application filed under Order 7, Rule 11 of the Code Civil Procedure as in view of the provision of section 37 of the PDR Act the suit filed was not maintainable. As against the aforesaid contention of the defendant petitioners, it was contended on behalf of the plaintiff opposite party that the suit filed by him is very much maintainable as setting aside of auction sale was sought by the persons who are not of the category of the persons as in section 37 of the PDR Act. The High Court Division rejected the contention of the plaintiff opposite party upon observing as the suit has been filed challenging the orders of the Additional Divisional Commissioner., Dhaka Division and the order of the Land Appeal Board provision of Section 37 of the PDR Act puts bar in filing a suit like the category of plaintiff’s suit. The High Court Division also observed as the case of the plaintiff is not “that the certificate proceedings are unauthorized and fraudulent and that the revenue authority acted without jurisdiction” and as such the suit so filed by the plaintiff was not entertainable by the Civil Court. The High Court Division finally observed “Since the O. P. No. 1 plaintiff filed the Other Class suit No. 82 of 1991 challenging the orders passed by the Additional Commissioner and Member, Land Appeal Board as an appellate authority in setting aside the auction held in a certificate case so the learned Assistant Judge should have allowed the petition of the petitioner defendants under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint instead of going into the question of law at the time of hearing of the original suit on the principle that the parties should not be dragged unnecessarily in a suit which is barred by law. Other Class Suit No. 82 of 1991 filed by the O. p. No.l plaintiff is found to be barred under section 37 of the P. D. R Act for which this revision should be allowed setting aside the impugned Order of the learned Assistant Judge.”
6. In view of the fact and circumstances and the law bearing on the subject, I find that the learned Assistant Judge committed an error of law in not allowing the application of the petitioners defendants (sic) for rejection of the plaint as being barred by law, So, I find that there is merit in this revision and as such it should be allowed. 7. In the result, the rule is made absolute on contest against the opposite party No. 1 and ex-parte against the rest without any order as to costs.
8. The impugned order of the learned Assistant Judge is set aside and the plaint of Other Class Suit No. 82 of 1991 is rejected as being barred by law.”
9. On the aforesaid finding and observation the High Court Division made the Rule absolute and thereupon rejected the plaint of Title Suit No. 82 of 1991 of the Court of Senior Assistant Judge, Iswarganj, Mymensingh.
10. Leave was granted to consider the contention that the High Court Division mis-read or mis-conceived the statement made in the plaint and that also mis-construed the Section 37 of the PDR Act and consequent thereupon was in error in rejecting the plaint of Other Class Suit No. 82 of 1991, that averments having been made in the plaint alleging fraud and malafide and that in the light thereof relief having been sought civil court is quite competent to investigate the question of fraud and malafide and the said allegation as can only finally adjudicate upon full dress hearing of he suit, the High Court Division was in error in rejecting the plaint upon an erroneous view that the suit is barred under section 37 of the PDR Act, that the provision of section 37 of the PDR Act bars suit either by the certificate holder, the certificate-debtor or by their representative and the plaintiff being not anyone of them the High plaint of Other Class Suit No. 82~of 1991 of the Court of Senior Assistant Judge, Iswarganj, Mymensingh on the view suit was barred under section 37 of the PDR Act.
11. The High Court Division made the Rule absolute and thereupon rejected the plaint of the Other Class Suit No. 82 of 1991 on the view that the suit filed by the plaintiff was not maintainable as per provision of section 37 of the PDR Act. The appellant has obtained the leave on contending that the plaintiff being not a certificate holder, or the certificate debtor or not being a representative of anyone of them his suit was not barred because of the provision of Section 37 of the PDR Act.
12. To appreciate the contention of the appellant and for examining the correctness of the judgment of the High Court Division the provision of section 37 of the PDR Act is reproduced below: “37 GENERAL BAR TO JURISDICTION OF CIVIL COURTS, SAVE WHARE FRAUD ALLEGED :Except as otherwise expressly provided in this Act
every question arising between the certificate holder and the certificate-debtor, or their representatives, relating to the making, execution, discharge or satisfaction of a certificate
duly filed under this Act. or relating to the confirmation or setting aside by an order under this Act or a sale held in execution of such certificate, shall be determined, not by suit, but by order of the certificate officer before whom such question arises, or of such other Certificate-officer as he may determine. ‘”Provided that a suit may be brought in a civil court in respect of any such question upon the ground of fraud.”
13. The plaintiff is the auction purchaser of land measuring .47 acre of plot No. 1503 listed in S .A.ichatian No. 599 (c. S. khatian No. 264) of Mouza Dattapara, Police Station Iswarganj, Mymensingh sold in Certificate Case No. 1723(1) 63-64. The auction sale having been affirmed on November 30, 1964, possession of the land so sold in auction and purchased by the plaintiff was delivered to the plaintiff on January 17, 1966. It is the case of the plaintiff that after taking delivery of possession of the land purchased by him in the auction he was possessing the same with his liscncees.
14. It appears from the materials on record that the lisencees approached the office of the Additional Deputy Commissioner, Mymensingh for setting aside the auction sale and thereupon Certificate Appeal No. 3/77-78 was registered. The Additional Deputy Commissioner, Mymensingh dismissed the said certificate appeal on February 9, 1984. The lisencees went on appeal before the Divisional Commissioner, Dhaka and the said appeal was heard by the Additional Commissioner, Dhaka Division and the same was allowed. Thereupon the plaintiff filed a review application but without any success and then the plaintiff moved the Land Appeal Board as against the order of Additional Commissioner, Dhaka Division and the Land Appeal Board dismissed the case filed by the plaintiff. After all those efforts the plaintiff filed the aforementioned suit seeking declaration that the orders of the office of the Additional Commissioner, Dhaka Division and the order of the Land Appeal Board are illegal, void and not binding upon him. The question in the suit framed by the plaintiff whether a person who is neither a certificate holder, or certificate debtor or their representative is incompetent as per provision of section 37 of the PDR Act to challenge legality of the orders as mentioned hereinbefore. From the reading of section 37 of PDR Act it is seen that jurisdiction of the Civil Court has been ousted to entertain a suit relating to the certificate proceeding initiated under the provision of PDR Act and sale held in the said certificate case except when a suit is filed alleging fraud in conducting the proceeding of the certificate case and the sale held in pursuant to the proceeding of the certificate case. The provision of section 37 of the PDR Act contemplates that every question arising between the certificate holder and certificate debtor or their representatives, relating to the making, execution, discharge, satisfaction of a certificate duly filed under the PDR Act or relating to the confirmation or setting aside by an order under the PDR Act or a sale held in execution of the certificate shall be determined not by a suit but by order of the certificate officer before whom such question arises, or of such other Certificate officer as he may determine.
15. The suit, plaint of which has been rejected by the High Court Division, has been filed by the plaintiff impelading his lisencees at whose instance certificate Appeal No. 3.77-78 was registered in the office of the Additional Deputy Commissioner, Mymensingh and the government functionaries dealing with land revenue and matters relating to land revenue and matters relating to land administration questioning legality of the orders of government functionaries passed in connection with auction sale held in certificate Case No. 1723(I)/63-64 at the instance of the persons stranger in the certificate case and not as to the correctness of the proceedings of the certificate case and the sale held thereunder. The plaintiff did not question the proceedings of the certificate case as the certificate debtor, certificate holder or of being their representative. The Respondent Nos.l and 2, who are 3rc* party in the certificate proceeding or in other words nobody in the certificate proceeding and that also not an auction purchaser, approached the Additional Deputy Commissioner, Mymensingh for setting aside the sale held in Certificate Case No. 1723(I)/63-64. The Additional Deputy Commissioner dismissed the said appeal but on second appeal the Additional Divisional Commissioner, Dhaka Division set aside the auction sale and then plaintiff tried to get the order of the Additional ^Divisional Commissioner, Dhaka Division set aside by filing review petition and appeal before Land Appeal Board but was not successful. In the background of the aforesaid state of the matter the plaintiff filed the suit questioning legality of the order of the Additional Divisional order of the Land Appeal Board.
16. The question as appears to us, involved in the suit is how far the Revenue y- authority on the application of third persons, whom the plaintiff claimed as his lisencees in the land purchased by him in the auction sale held in Certificate Case No. 1723(I)/63-64, is legally competent to set aside an auction sale which has not been questioned by the certificate holder certificate debtor and their representative. It is seen from the judgment of the High Court Division that the said Division while making the Rule absolute placed reliance on the decision in the case reported in 43 DLR, 242(Marida Begum and others Vs. Moulavi Md. Hasan and others). The fact of the case so relied upon by the High Court Division is quite different from the facts of the instant appeal. In the reported case the certificate debtor took objection to the certificate sale ana thereupon the revenue authority on examination of the materials on record set aside the auction sale and thereupon the auction purchaser filed revision which was dismissed and then the auction purchaser moved the Board of Revenue but without any success. Thereafter one of the auction purchasers filed Writ Petition No. 435 of 1967 before the High Court the then East Pakistan challenging the aforesaid orders of the Revenue authority setting aside the auction sale. The Rule obtained in the Writ petition was discharged. The writ petitioner filed petition for leave to appeal in the Supreme Court but the same was dismissed. Thereafter some other auction purchasers filed the suit. In the background of the said facts it was held that after exhausting the procedure as provides in PDR Act the auction purchaser is precluded from resorting to the civil court for the relief which could not have from the Revenue authority.
17. In the instant case third person in the certificate case and also third person in the certificate proceeding i. e. auction proceeding and that who also was not an auction purchaser moved the revenue authority for setting aside the auction sale and the Revenue authority set aside the auction sale and the Revenue Authority set aside the auction sale. The plaintiff is the auction purchaser. The point involved in the suit filed by the auction purchaser is whether third person in the auction proceeding and that also not being the representative of the parties in the auction proceeding and also not being an auction purchaser can move the Revenue authority seeking setting aside of the auction sale and thereupon how far the Revenue authority is competent to set aside the auction sale or in other words how far the Revenue authority is/ was within its jurisdiction in setting aside the auction sale at the instant of an stranger to the certificate proceeding.
18. As stated hereinbefore Respondent Nos. 1 and 2, whom the plaintiff claimed his lisencee in respect of the property purchased in certificate Case No. 1723(I)/6364, moved the Revenue authority for setting aside the auction sale, which was confirmed on 17.1.1966 almost after lapse of about 12 years. These 2 Respondents as already mentioned were strangers to the certificate proceeding. The action of the Revenue authority at the instance of aforesaid category of person in the background of the provision of PDR Act how far is competent in law came up for consideration in the case of Monirunnahar Begum and others, vs. shahed Ali and others reported in (1981) 1BCR (HCD), 43.
19. In the reported case in a certificate proceeding property belonging to the member of the Hindu community was sold and after 5 years, as it appears a tenant of the holding approached the Revenue authority for setting aside the auction sale and the application was allowed by the Additional Deputy Commissioner and the order of the Additional Deputy Commissioner and the order of the Additional Deputy Commissioner was maintained by the Additional Commissioner and Joint Secretary (appellate and revisional authority respectively). The said action of the Revenue was challenged by the auction purchaser by filing writ petition. The High Court Division on consideration of different provisions of the PDR Act observed “Although the power conferred upon the revisional authorities mentioned therein under section 53 of the Act is in general terms, it is always conditional upon the various provisions of the Act itself. Consequently, the provisions of sections 7, 22, 23, 25, 36, 37 of the act as mentioned and discussed hereinbefore have mandated the revisional authorities under section 53 of the act, to act according to the provisions of the act mentioned hereinbefore. It appears in the present case that the authorities mentioned in section 53 of the act have acted in clear and gross violation of the various mandatory provisions of sections, 7, 22, 23, 25, 36, 37 of the act.”
20. It has further been observed in the background of the facts of the reported case” Such person not claiming any title under certificate debtor as such could not be treated as a person whose interests had been affected by the sale. Thus the application for setting aside the sale having been made by respondent No. 1 who has been found to be a person not legally interested in the property as such, the revisional authorities could not set aside the auction at the instance of a person who had no locus stand to apply in that regard that the respondent No. 1 being a monthly tenant in the premises of the property without claiming any title under the certificate debtor is not a person having any interest in the auction of the property as such and consequently could not invoke sections 22, 23, of the Act and thereby the auction became absolute under section 25 of the Act. That being so, the revisinal authorities under section 53 of the Act could not set aside the sale upon the ground of non-service of notice under section 7 if the Act which in turn comes in direct conflict with the provision of section 36 of the Act” In the reported case the action of the Revenue authority was held illegal.
21. In the aforesaid case the Revenue authority was moved for setting aside the auction sale, as in the instant case, by a person having no interest in the land sold or in w any respect interest of the respondent Nos. 1 and 2 was affected by the auction sale. It appears from the papers on record that the Revenue authority was of the view that there was no existence of Certificate Case No/. 1723/63-64. It is the definite case of the plaintiff that he purchased the land sold in Certificate Case No. 1723(I)/63-64 but the authorities placing reliance on the local revenue office set aside the auction sale taking the view there was no certificate Case No. 1723/63-64. Along with other contentions of the plaintiff the contention as to Certificate Case number was required to be adjudicated by the Civil Court on consideration of the evidence that would be adduced by the parties as regard that vital contention.
20. As stated hereinbefore the High Court Division set aside the order of the trial Court rejecting the application filed v under Order 7, Rule 11 of the Code of Civil Procedure on the view that the suit filed by the plaintiff, The auction purchaser, was barred under section 37 of the PDR Act. The provision of Section 37 of the PDR Act is that every question arising between the certificate holder and the certificate debtor or their representatives, relating to the making, execution, discharge or satisfaction of certificate duly filed under said Act, or relating to the confirmation or setting aside by an order under that Actor a sale held in execution of such certificate, shall be determined by the certificate officer concern and not by a suit, but a suit an always be brought in a civil court challenging such sale on the ground of fraud. In the suit in question the situation contemplates in section 37 of the PDR Act and to be determined by the certificate officer alone while there is no allegation of fraud is absent, since the Respondent Nos. 1 and 2 are totally strangers in all respect to the certificate proceeding or in order other words they are neither certificate holder, certificate debtor or their representatives .This being the position the High court Division was in serious error in arriving at a finding that the suit i. e. Other Class Suit No. 82 of 1991 was barred as per provision of Section 37 of the
PDR Act and thereupon in rejecting the plaint of the said suit upon setting aside the order of the trial Court rejecting the prayer for rejection of the plaint. It has already been stated hereinabove point involved in the suit is how far the revenue authorities were within their jurisdiction in setting aside the auction sale at the instance of a person who has not claimed title in the property sold in auction in the certificate proceeding initiated as per provision of PDR Act after apes of about 12 years. In the background of the said moot point for decision in the suit we are of the view the suit so filed is very much maintainable and can legally be proceeded.
21. In the background of the discussion made hereinbefore the appeal is allowed. The order dated November 12, 1998 passed in Civil Revision No. 3339 of 1992 is set aside and the order dated November 16, 1992 (order No. 35dated 16.11.1992) of the Court of Senior Assistant Judge, Iswarganj, Mymensingh passed in Other class suit No. 82 of 1991 is restored. The Other Class Suit No. 82 of 1991 is restored to its file and number. The trial Court is directed to dispose of the suit expeditiously. there is no order as to costs.
Source: III ADC (2006) 476