Appellate Division Cases
(Criminal)
PARTIES
Towfiqul Islam and others…………….. Petitioners.
-Vs-
S.M. Mohiuddin, Officer-in-charge, Motijheel, Dhaka and others……Respondents.
JUSTICES
Md. Ruhul Amin CJ
Mohammad Fazlul Karim J
MM. Ruhul Amin J
Md. Tafazzul Islam J
Md. Joynul Abedin J
Md. Hassan Ameen J
Judgment Dated: 6th August 2007
The Code of Criminal procedure, Section 145
The Code of Civil Procedure, Section 151, Order 39. Rules-12
An application for restoration of possession of the suit property to him………… (6)
During pendency of the Criminal Review Petition No.l of 2001 the officer-in-charge of Motijheel Police Station along with other respondents went to the holding No.58/1A, 5(five) storied building, Purana Paltan on 28.3.2002 and forcefully dispossessed Abdul Alim, Constituted Attorney of these petitioners and their tenants from Criminal the said holding through police force without making any inventory list. In fact no notice was served upon the petitioners or on their Constituted Attorney Abdul Alim or to any of the tenants of the petitioners. Therefore on 9.8.2003 the aforesaid review petition was withdrawn …………………….(14)
We have heard the learned Advocate for the petitioners and considered the materials on record. We are of the view that this court on correct appreciation of law and facts rightly dismissed the contempt petition. On perusal of the review petition and upon consideration of the submissions of the learned counsel it appears petitioners seek rehearing of the matter which is not permissible in law. There is therefore no cogent reason for considering the prayer for review ……………..(20)
Syed Amirul Islam, Advocate, instructed by Md. Nawab AH, Advocate-on-Record. ………………………For the Petitioners
For the Respondents………………….. Not Represented.
Review Petition No.5 of 2007
(From the judgment and decree dated 8.2.2007 passed by the Appellate Division
in Contempt Petition No.2 of 2003.)
JUDGMENT
Md. Joynul Abedin J: By this petition the plaintiff-petitioners seek review of this
Court’s judgment dated 8.2.2007 passed in Contempt Petition No.2 of 2003 rejecting
the petition of the petitioners.
2. Short fact is that the mother of the petitioners, Monowara Islam, purchased the land of holding No.58/A, Purana Paltan, Dhaka from the government vide registered deed No. 1659 dated 6.4.1990 and was possessing the same by mutating her name in the S.A. Khatian and paying rent to the Government. Monowara Islam after taking allotment started a Restaurant named Flora Restaurant and Sweetmeat in the said land after her nickname “Flora”. Monowara Islam could not run the said restaurant, as such, the same was rented to the respondent No.4 for one year at a rent of.Tk.350/- on daily basis and accordingly a written agreement was executed and signed on stamp papers on 1.7.1991. Said respondent No.4 subsequently left the premises. Thereafter Monowara Islam
decided to construct a multistoried building on the said land and accordingly a building plan was approved by the RAJUK. Monowara Islam then took loan of Tk. 19,00,000/- from Sonali Bank and constructed five-stoned building and started a residential Hotel there by keeping the land mortgaged to the said Bank and accordingly a mortgage deed was registered in favour of the said Bank. The hotel 3rd was in the 2 nd and 4tn floors and the shops and offices were in the ground floor and 1st floor. The name of the Hotel was
Hotel flora; Azizul Islam, husband of Monowara Islam used to look-after the Hotel business on her behalf. Other floors and rooms were rented to different persons. When her husband Azizul Islam became seriously ill, a power of Attorney was executed in favour of one Abdul Alim to manage the property including the hotel business.
3. The respondent No.4 from the middle of 1997 started claiming the said property and trying to take the property by force, as such, upon conspiracy, Mr. Md. Azizur Rahman, the then Sub-inspector of Motijheel Police Station filed non FIR Case No.793 of 1997 on 18.11.1997 before the Court of Chief Metropolitan Magistrate, Dhaka under section 145 of the Code of Criminal Procedure regarding the holding No.58/1A, 5(five) storied building, Purana Paltan, of Motijheel Police Station making Monowara Islam and her Constituted Attorney Abdul Alim 2nd as party and respondent No.4 Md. Humayun Kabir and 7 others were made parties. The Magistrate thereupon appointed the officer-in-charge of Motijheel Police Station as the Receiver of the said property by an order dated 20.11.1997 to maintain the law and order situation. Monowara Islam and her tenants filed several applications for staying the operation of the order dated 20.11.1997 in order to
stop him from taking possession of the property from her but the officer-in-charge took over the possession of the 2nd 3rd and 4th floors of holding No.58/1A Purana Paltan from Abdul Alim the constituted Attorney of Monowara Islam on 27.11.1997 by G.D. Entry No.2305 dated 27.11.1997.
4. For the self-same land Monowara Islam instituted a suit being Title Suit No.358 of 1997 before the Assistant Judge, 4th Court, Dhaka against the Officer-incharge,
Motijheel Police Station and 3 others for permanent injunction. In the said suit Monowara Islam filed an application under Order 39, Rules 1-2 read with section 151 of the Code of Civil Procedure for temporary injunction and the learned Assistant Judge was pleased to issue 3 days show cause notice and thereafter on 30.11.1997 passed an order directing the
parties to maintain status-quo in respect of the possession of the suit property.
5. On behalf of Monowara Islam an application was filed on 2.12.1997 before the
Chief Metropolitan Magistrate, Dhaka for setting aside the said order of appointment
of receiver on the ground of the order of status-quo passed in Title Suit No.358 of 1997 and Mr. Showkat Nabi, Metropolitan Magistrate. Dhaka disposed of the matter on 3.12.1997 by the following order:
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6. On 8.12.1997 the respondent No.4 filed an application for restoration of possession
of the suit property to him and one Numl A lam Selim, tenant of the suit premises, filed an application not to dispossess him from the suit premises and both the applications were heard by the Metropolitan Magistrate on the same day and passed the following order:
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7. On 28.12.1997 the officer-in-charge of Motijheel Police Station filed an application
for a direction whether he would release the 3rd, 4th and ^th floors in question and the learned Magistrate passed the following order: “f® ^
8. Accordingly as per order dated 28.12.1997 ” the officcr-in-charge, Motijheel Police Station handed over the possession of the ^rd 4th and 5th floor and part of roof of the ^th floor of holding NO.58/1A, Purana Paltan with 5(five) storied building on 22.1.1998 to Abdul Alim, Constituted Attorney of Monowara Islam by G.D. entry No. 1534 dated 22.1.1998.
9. Humayun Kabir, respondent No.4, again started to file several applications on different please for seeking a direction upon the officer-in-charge, Motijheel Police Station to hand over the possession of the case premises to him and after hearing the Magistrate directed the officer-incharge, Motijheel P.S. to take necessary steps as per orders passed earlier on
24.10.1997, 20.11.1997, 3.12.1997 , 8.12.1997 and 28.12.1997 and after receiving the said orders the officer-incharge of Motijheel Police Station submitted a detail report dated 8.11.1999 to the Chief Metropolitan Magistrate, Dhaka where he clearly stated that the proceeding of Non FIR case was started with the holding N.O.58/1A, 5(five) storied building, Purana Paltan and receiver was appointed for the said property: The possession of the said holding was taken from Abdul Alim and according to the direction of the
Court, the possession of the said holding was handed over to the said Abdul Alim.
But the respondent No.4 was filing several applications trying to confuse the Magistrate and was harassing Monowara Islam, as such, on behalf of Monowara Islam, Criminal Miscellaneous Case No.6040 of 1999 was filed and moved under section 561A of the Code of Criminal procedure before the High Court Division and Rule was issued on
14.11.1999 and all further proceedings of the non ITR Case No.793 was stayed on 27.1.2000 till hearing of the rule.
10. Monowara Islam died on 12.2.2000 and the rule was listed for hearing on 13.7.2000. The criminal miscellaneous case was filed by Abdul Alim, Constituted Attorney of Monowara Islam. After her death, said Abdul Alim could not represent the case, as such, the learned Advocate for the petitioners could not argue the case at the time of hearing of the rule and the Advocate for respondent No.4 argued ex-parte and the rule was made absolute on misrepresentation of facts of the case and obtained the following direction.
“In the result, the Rule is made absolute proceeding in non FIR 793/97 is quashed and the receiver, officer-in-charge, Motijheel Police Station is directed to hand over the
possession of the holding Nos.59 and 59/1 of Purana Paltan, Dhaka to Humayun Kabir, Second party.”
11. Abdul Alim, Constituted Attorney of Monowara Islam, filed Criminal Petition for Leave to Appeal No.22() of 2000 against the judgment dated 13. 7.2000 passed in Criminal Miscellaneous Case No.6040 of 1999 by the High Court Division and the Appellate Division upon hearing the said leave petition dismissed the same by judgment dated 26.11.2000 on the ground that the High Court Division did not direct to take over the possession of Holding No.58/1A, Purana Paltan and Monowara Islam was not
therefore aggrieved by the said judgment dated 13.7.2000.
12. After receiving the aforesaid judgment of the Appellate Division passed in Criminal Petition No.220 of 2000, the State represented by the Deputy Commissioner, Dhaka and the Officer-incharge, Motijheel Police Station filed the Criminal Review Petition No.l of 2001 before the Appellate Division for review of the judgment dated 26.11.2000 passed
in Criminal Petition No.220 of 2000 stating that holding No.58/1A, 5(five) storied building, Purana Paltan was disputed property in the non FIR Case No.793 of 1997 and receiver was appointed in respect of that property and the officer-incharge having obtained possession of the holding No.58/1A, 5(fivc) storied building, Purana Paltan from Abdul Alim, Constituted Attorney of Monowara Islam and he never obtained possession of holding No.59/1, Purana Paltan from Humayun Kabir. There was no existence of holding No.59 Purana Paltan and in that circumstances the receiver could not hand over possession of the said holding.
13. One Md. Azizullah and others filed and moved another Criminal Petition for Leave to Appeal No.270 of 2000 before the Appellate Division against the said judgment dated 13.7.2000 passed by the High Court Division in Criminal Miscellaneous Case No.6040 of 1999 and their Lordships were pleased to grant order of leave and were also pleased to
grant an order of injunction not to evict Azizullah and others from holding No.59/1, Purana Paltan.
14. During pendency of the Criminal Review Petition No.l of 2001 the officerin-charge of Motijheel Police Station along with other respondents went to the holding No.58/1A, 5(five) storied building, Purana Paltan on 28.3.2002 and force fully dispossessed Abdul Alim, Constituted Attorney of these petitioners and their tenants from the said holding
through police force without making any inventory list. In fact no notice was served upon the petitioners or on their Constituted Attorney Abdul Alim or to any of the tenants of the petitioners. Therefore on 9.8.2003 the aforesaid review petition was withdrawn.
15. The possession of the ground floor and 1st floor of the holding 58/1A, 5(five) storied
building, Purana Paltan, Dhaka was never received by the receiver appointed in Non FIR Case No.793 of 1997.
16. After taking over possession of the holding No.58/1A, 5(five) storied building,
Purana Paltan, Abdul Alim, the Constituted Attorney of the petitioners finding no other way filed an application to the Minister for Home Affairs for returning the land in question, who after holding an enquiry found the fact to be true and ordered to hand over possession to the petitioners and same was accordingly informed vide Memo No.SHA:MA (Ain-2)/Nalish/PRO: KA-1/01 (Angsho-2) 1169 dated 27.7.2003.
17. After the death of Monowara Islam,petitioners being sons and daughters inherited the suit holding No.58/1 A, 5(five) storied building, Purana Paltan, Dhaka and the petitioners executed a power of Attorney in favour of Abdul Alim to file cases, make tabdir and to
swear affidavit etc. on their behalf.
18. The petitioners served a demand of justice notice upon the respondents on 22.10.2003 requesting them to restore possession of the holding No.58/1A, 5(five) Storied building, Purana Paltan to the petitioners within one week from receipt of the same but received no
response from the respondents. Hence the petitioners filed a Contempt Petition No.2 of 2003 against the respondents before the Appellate Division of the Supreme Court. The Appellate Division thereafter by the impugned order dated 8.2.2007 rejected the said contempt petition. Being aggrieved the petitioners have filed, the instant review petition.
19. Mr. Syed Amirul Islam, learned Counsel for the petitioners, submits that the Metropolitan Magistrate by his order dated 20.11.1997 appointed 0/C Motijheel Police Station, receiver for holding No.58/1 A, Purana Paltan m (he non FIR Case No.793 of 1997, the possession of the said holding was taken from Abdul Alim and subsequently as per order of court the same was handed over to Abdul Alim, no possession of holding No.59 and 59/1 having been taken and the High Court Division as well as Appellate
Division made no direction to hand over the possession of holding No.58/1-A to Hamayun Kabir, respondent No.4. Hence taking over possession of 58/1-A, 5(five) storied building from the possession of the petitioners and handing over possession of
the same to respondent No.4 is in clear violation of judgment and order dated 26.11.2000 passed in Criminal Petition for Leave to Appeal No.220 of 2000 by the Appellate Division as well as judgment and order dated 15.4.2001 passed in Criminal Petition for Leave to Appeal No.270 of 2000 by the Appellate Division. The impugned judgment dated 8.2.2007 of the Appellate Division is an error on the face of the record and needs to be reviewed. He next submits that this Division while giving the aforesaid judgment
appears to have failed to consider the statements made in General Diary No.2474 dated 28.3.2002 by the respondent No.l which is inconsistent with his earlier statements made on several occasions before the court of Magistrate as well as before the Appellate Division. He lastly submits that after taking over possession of 58/1A, 5(five) storied building the petitioners finding no other way filed an application to the Minister of Home
Affairs for returning the 5(five) storied building who after making an inquiry found the fact to be true and accordingly ordered to take over possession of holding No.58/1A and hand over the same to the petitioners and the same was informed vide Memo No.SHA:MA AIN-2/NAL-ISH/Pro: KA-1/01 Angsho-2) 1169 but their Lordships of the Appellate Division have erred in failing to consider the same.
20. We have heard the learned Advocate for the petitioners and considered the materials on record. We are of the view that this court on correct appreciation of law and facts rightly dismissed the contempt petition. On perusal of the review petition and upon consideration of the submissions of the learned counsel it appears petitioners seek rehearing of the matter which is not permissible in law. There is therefore no cogent reason for considering the prayer for review.
21. Accordingly, the petition is dismissed.
Source : V ADC (2008),434