Sheikh Abdul Mazed Vs. Md. Shomrej Ali Mandal and others

Appellate Division Cases

(Civil)

PARTIES

Sheikh Abdul Mazed. ………………..Petitioner

-Vs-

Md. Shomrej Ali Mandal and others………………. Respondents

JUSTICES

Md. Ruhul Amin J

Md.Tafazzul Islam J

Judgment Dated: 9th July 2006

The Code of Civil Procedure, Section 115 (2),115(3), (4), 151

The suit was filed seeking declaration of title ………………(2)

It is seen from the provision of section 115(4) of the Code of Civil Procedure that revision can be preferred before the High Court Division against an order of the Court of District Judge or Additional District Judge passed under section 115(2) or 115(3) of the Code of Civil Procedure when aforesaid Courts committed an error in respect “of an important question of law resulting in erroneous decision occasioning failure of justice” …………………(6)

Syed Mahbubar Rahman, Advocate-on-record …………….For the Petitioner

Respondents …………………….Not represented.

Civil Petition For Leave To Appeal No. 1133 of 2005

(From the Judgment and Order dated May 7, 2005 passed by the High Court Division in

Civil Revision No. 1748 of 2004)

JUDGMENT

Md. Ruhul Amin J: This petition for leave to appeal is directed against the judgment dated May 7, 2005 of a Single Bench of the High Court Division in Civil Revision No. 1748 of 2004 discharging the Rule obtained against the order dated March 3, 2004 passed by the learned District Judge, Satkhira in Civil Revision No.l of 2004 dismissing the same and thereupon affirming the order dated June 1. 2003 and November 22, 2003 passed by the 2nd Court of Joint District Judge, Satkhira in Title Suit No. 101 of 1999. The revisional application before the High Court Division was filed under section

115(4) of the Code of Civil Procedure.

2. The suit was filed seeking declaration of title in respect of the land described in

the schedule attached to the plaint and for further declaring that the compromise decree passed in Title Suit No.69 of 1997 of the Court of Assistant Judge, Sadar, Satkhira is fraudulent and not binding on the plaintiffs.

3. The defendant entered appearance and filed written statement. At one stage of the suit the plaintiffs filed an application under section 151 of the Code of Civil Procedure with the prayer for staying the operation of the soleh (compromise) decree dated September 1, 1997 passed in Title Suit No.69 of 1997 till disposal of the plaintiffs’ suit and the trial Court upon hearing the parties allowed the application so filed with the prayer for staying the soleh decree.

4. The defendants filed an application for vacating the order of stay which was passed on June 1, 2003. The trial Court rejected the said application by the order dated November 22, 2003. Thereupon defendant preferred revisional application before the Court of District Judge as against the orders dated June 1, 2003 and November 22, 2003 and thereupon Civil Revision No.l of 2004 was registered. The learned District Judge by the order dated March 3, 2004 rejected the revision case. Then the defendant moved the High

Court Division in revisional jurisdiction and obtained Rule.

5. It was contended from the defendantpetitioner’s side that the soieh decree has already been acted upon long before the filing of the application seeking stay of the said decree by the execution and registration of the kabala and as such there having nothing to stay the trial Court as well as the Court of District Judge were in error in passing the order of stay and in rejecting the prayer for vacating the order of stay.

6. It was contended on behalf of the plaintiff opposite party that in the background of the relief sought in the suit and when the examination of the witness from the side of the plaintiffs has already been commenced as well as in the background of the facts and circumstances of the case the Court of District Judge as well as the trial Court were not in error in passing the orders in respect whereof the defendant moved the Court of District Judge and the High Court Division. It was also contended that since no important question of law is involved in the revisional application filed under section 115(4) of the Code of Civil Procedure and as there has been no failure of justice in view of the order

passed by the trial Court and as such the revisional application was not maintainable. The High Court Division on consideration of the totality of the facts of the case of the parties and the relief sought by the plaintiffs was of the view that the trial court did not commit any error in making the Orders impugning which revisional application was filed before the Court of District Judge. The High Court Division further held that the Court of District Judge in the background of the facts and circumstances of the case did not commit any error in refusing to interfere with the orders passed by the trial Court and thereupon in rejecting the revisional application. Finally the High Court Division discharged the Rule upon holding that no important question of law involved in the

revisional application.

7. We have heard the learrfed Advocateon-record and perused the materials on record. It is seen from the provision of section 115(4) of the Code of Civil Procedure that revision can be preferred before the High Court Division against an order of the Court of District Judge or Additional District Judge passed under section 115(2) or 115(3) of the Code of

Civil Procedure when aforesaid Courts committed an error in respect “of an important question of law resulting in erroneous decision occasioning failure of justice”.

8. In the background of the materials on record we are of the view the High Court

Division was not in error in discharging Appellate Division Cases the Rule since in passing the order sought (Civil) to be revised by the High Court Division no error as to important question of law was committed by the courts below and consequent thereupon there was no failure of justice.

9. Accordingly the petition is dismissed.

Source : V ADC (2008),680

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