Appellate Division Cases
(Civil)
PARTIES
Pubali Bank Ltd. Head Office, 26 Di1kusha Commercial Area Dhaka ………………………. Petitioner
-Vs-
The Government of the Peoples Republic of Bangladesh, represented by the Secretary. Ministry
of Commerce. Secretariat Building, Ramna, Dhaka and others………………..……………. Respondents
JUSTICES
Md. Ruhul Amin J
M.M. Ruhul Amin J
Md. Tafazzul Islam J
Judgment Dated: 29th November 2006
The owner of the property challenged the action of the Government in treating the property in question as abandoned property and finally it was adjudicated that the property is not an abandoned property……………………. (2)
We have heard the learned Counsel for the petitioner. On perusal of the petition filed seeking review of the judgment as mentioned hereinbefore it is seen that the same has not been filed on the ground that there is apparent mistake in the judgment sought to be reviewed or that the review petition has been filed on the discovery of new fact which could not be placed before the Court at the time of hearing of the appeal inspite of best effort. In that view of the matter we find that there is no merit in the petition filed seeking review of the judgment of this Court in the aforementioned appeal. The learned Counsel submitted that as a case is pending before the High Court Division relating to the property in question between the parties in the review petition and as such the petition for review may be kept pending till disposal of the case before the High Court Division since that would resolve the dispute between the parties once for all. The submission so made is of no merit since as it appears in the background of the submission made by the learned Counsel the issue involved in the case before the High Court Division for adjudication is quite different and distinct from the issue as was in the writ petition and thereafter in the appeal judgment whereof is sought to be reviewed…………….(5)
Khan Saifur Rahman Senior Advocate, instructed by Mr. Syed Mahbubur Rahman.
Advocate-on-record……………For Petitioner
Respondents……………….. Not represented.
Civil Review Petition No.9 of 2006
(From the Judgment and Order dated August 1, 2005 passed by the Appellate Division in Civil Appeal No.85 of 1997
JUDGMENT
Md Ruhul Amin J: This petition has been filed seeking review of the judgment dated
August 1, 2005 passed in Civil Appeal No.85 of 1997 dismissing the same. The appeal was filed against the judgment dated April 10, 1997 of the High Court Division in Writ Petition No.3396 of 1991 discharging the Rule obtained therein. The writ petition was filed challenging the legality of the Memo. No.l221(5)J,M,60 dated 14.12.1991 of the Office of District Magistrate, Chittagong issued under the signature of the Magistrate, 1st Class, Sadar, Chittagong addressed to the Deputy Police Commissioner, Sadar Head
Quarter, CMP Chittagong requesting him for placing police personnel for eviction
of the appellant, herein petitioner, from the property of M/S. Lazaf Commercial
Corporation Ltd. at 40, Shaheed Saifudding Khaled Road, Chittagong.
2. The property in question was taken over by the Government as abandoned property.
The petitioner accepting the property in question as an abandoned property applied
to the abandoned property authority for lease of part of the property in question and the abandoned property authority leased out the property (part) in question to the petitioner herein. The owner of the property challenged the action of the Government in treating the property in question as abandoned property and finally it was adjudicated that the property is not an abandoned property. The abandoned property authority”while in compliance of the judgment passed declaring the property not an abandoned property took step for handing over possession thereof upon evicting the lessee of the abandoned
property authority the petitioner challenged the action of the abandoned property
authority taken for evicting him (petitioner) from the property in question. The
petitioner challenged the action of the abandoned property authority before the High Court Division in writ jurisdiction but without any success.
3. As against the judgment of the High Court Division the petitioner filed appeal. This Court dismissed the appeal upon observing “In the background of the materials on record the undenied position is that the property in question i.e. the property possessed by the appellant and the other properties of the Respondent No.3 at one point of time although was taken over as abandoned property and managed by the abandoned property authority by allotting the same to the different organizations and person(s) including the appellant but the action of the abandoned property authority having been challenged by the Respondent No.3 and another it has been declared that the properties of the Respondent No.3 are not abandoned property and thereupon direction was made to release the property from the list of abandoned property. As such the moment it was held that the properties of the Respondent No.3 are not abandoned property, the abandoned property authority under the law is duty bound to return the property to the claimant upon removing the encumbrance created by it i.e. upon taking over possession from the person to whom the abandoned property authority allotted the property of the Respondent No.3 while managing the same as abandoned property and that in performance of the said legal duty the step taken by the abandoned property authority reflected in Annexure-D to the writ petition i.e. Memo, of the office of the Deputy Commissioner, Chittagong dated
14.12.1991 has quite correctly been held legal by the High Court Division.
4. The appellant’s claim to retain possession as mortgagee is not legally sustainable since the mortgage as claimed by the appellant is an equitable mortgage. The admitted position is that at one time the bank, as claimed by it, went into possession of the property in question, of which it was not in possession as mortgagee, to save the same from being
damaged keeping in view its interest therein as mortgagee. In the background of the nature of the mortgage, i.e. equitable mortgage, when the property was taken over by the abandoned property authority the appellant stepped down from its previous position and approached the abandoned property authority to allot the property in question to it and on the basis of such allotment the appellant was possessing the property in question, but the
moment the property has been declared as not abandoned property and thereupon while it became legal obligation and duty on the part of the abandoned property authority to restore possession of the property to the claimant of the property and that steps having been taken as in Annexure-D for discharging the said obligation and duty, the same cannot be considered to have been taken without jurisdiction or that the steps taken should not have been the one but there should have been different one because of the fact stated hereinbefore. The action as has been initiated by the abandoned property authority being for restoration of possession of the property which was taken over as abandoned property but later on declared by the Court not abandoned property to the authoritatively declared claimant/owner, the action of the Respondent Nos. 1 and 2 is quite legal and
lawful. The contention of the appellant that the Respondent No.3 owes huge dues to the bank is not material in the context of the matter involved in the case brought by the appellant before the Court and that the question of taking loan by the Respondent No. 3 and the liability thereof, if any, to the Bank are extraneous matter in the context of the subject matter of the writ petition out of which the appeal has arisen and as such is not an issue for determination in the writ petition. The only issue before the Court is whether the step taken for restoration of possession, as in Annexure-D to the writ petition, i.e. the impugned annexure, is legal or not. As regard the liability, if any, in connection with the mortgage, claimed by the appellant the same would be matter for decision in some other forum but not in writ jurisdiction. As such bank is not legally entitled to retain possession
of the property of the Respondent No.3 on the said ground i.e. Respondent No.3 owes
to the bank in connection with the mortgage since in the case of the kind of mortgage
as claimed by the appellant the mortgagee is not supposed to be in occupation of the mortgagor’ s property.’
5. We have heard the learned Counsel for the petitioner. On perusal of the petition filed seeking review of the judgment as mentioned hereinbefore it is seen that the same has not been filed on the ground that there is apparent mistake in the judgment sought to be reviewed or that the review petition has been filed on the discovery of new fact which could not be placed before the Court at the time of hearing of the appeal inspite of best effort. In that view of the matter we find that there is no merit in the petition filed seeking review of the judgment of this Court in the aforementioned appeal. The learned Counsel submitted that as a case is pending before the High Court Division relating to the property in question between the parties in the review petition and as such the petition for
review may be kept pending till disposal of the case before the High Court Division
since that would resolve the dispute between the parties once for all. The submission
so made is of no merit since as it appears in the background of the submission made by the learned Counsel the issue involved in the case before the High Court Division for adjudication is quite different and distinct from the issue as was in the writ petition and thereafter in the appeal judgment whereof is sought to be reviewed. It further appears that the judgment sought to be reviewed has hardly any bearing on the subject matter of the case as stated by the learned Counsel of the petitioner pending before the High Court
Division.
6. In the background of the discussions made hereinbefore we find no substance in the petition.
7. Accordingly the petition is dismissed.
Source : V ADC (2008), 112