DISTRICT– _____________
IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
CIVIL REVISION NO. OF_____.
IN THE MATTER OF:
An application under Section 115(1) of the Code of Civil Procedure, 1908
AND
IN THE MATTER OF:
X
Son of late Y
41/3A Purana Paltan
Dhaka 1000
………..PETITIONER
-versus –
1. Bangladesh
Represented by the Secretary, Ministry of Religious Affairs, Bangladesh Secretariat, Segunbagicha, Dhaka- 1000.
2. Islamic Foundation Bangladesh
Represented by its Secretary, Baitul Mokarram, Dhaka- 1000.
3. Rupali Bank Limited,
Ramna Corporate Branch, 13, Bangabandu Avenue, Dhaka- 1000.
………..OPPOSITE PARTIES
AND
IN THE MATTER OF
Order No. 7 dated 28.10.2007 passed by the Fifth Court of Joint District Judge, Dhaka in Title Suit No. 248 of 2007 rejecting the application of the petitioner for temporary injunction filed under section 151 of the Code of Civil Procedure (“Impugned Order”)
APPLICATION VALUED AT TK. 22,00,00,000.00 ONLY
SUIT VALUED AT TK. 22,00,00,000.00 ONLY
To
Mr. Justice Md. Ruhul Amin, the Chief Justice of Bangladesh and his companion Justices of the said Hon’ble Court.
The humble petition of the petitioner above named most respectfully-
SHEWETH
1. That this civil revisional application is directed against the Order No. 7 dated 28.10.2007 passed by the Fifth Court of Joint District Judge, Dhaka in Title Suit No. 248 of 2007 rejecting the application of the petitioner filed under section 151 of the Code of Civil Procedure for a temporary injunction against the respondent No.2 restraining it from dispossessing the petitioner from 9 (nine) of his shops situated at Baitul Mokarram Shopping Centre (hereinafter referred to as the impugned Order). The impugned Order has been passed illegally and without application of judicial mind. The Fifth Court of Joint District Judge rejected the application under section 151 (hereinafter referred to as the said application) on the ground that the petitioner had failed to prove his title. In an interlocutory application, the learned court summarily dealt with the question of title, without considering the possession of the same. Further, the learned Fifth Court of Joint District Judge also did not consider that the property was in danger of being forcibly taken and damaged by the respondent No. 2 Foundation. Certified copy of the impugned order is annexed herewith.
2. That the petitioners as plaintiff filed Title Suit No. 248 of 2007 on 05.09.2007 before the Fifth Court of Joint District Judge, Dhaka (hereinafter referred to as the said suit) against the opposite party Nos. 1 to 3 (as defendant Nos. 1 to 3) for declaration of their title in relation to 26 shops situated at ground floor of Baitul Mokarram Mosque, having a total area of 3533 square feet, which were constructed in the place of 5 godowns (i.e Godown Nos. 2 to 6) and more fully described in the Schedule A below (hereinafter referred to as the said property). The 5 godowns had an area of 5047 square feet. The petitioner is claiming his title to 70% area of the 5 godowns ( i.e. 3533 square feet) as per the representation of the respondent No.2 Foundation, over which he has constructed 26 shops, the details of which have been stated hereinafter.
3. That the plaint case is that the above-mentioned 5 godowns were initially leased by the Baitul Mokarram Society (predecessor of the respondent No.2 Foundation) to Muslim Commercial Bank. After liberation of Bangladesh, the respondent No.3 (as successor of Muslim Commercial Bank) obtained the lease of 5 godowns (being godown Nos. 2 to 6) situated on the ground floor of Baitul Mokarram Mosque and having an area of 5047 square feet (hereinafter referred to as the said godowns). The lease was regularly renewed by the respondent No.2. It was last renewed on 25.05.2006 and was effective from 01.01.2006 to 30.06.2006. Under clause 6 of the lease agreement dated 25.05.2006, prior permission of the respondent No.2 in the prescribed formed was required before the said godowns could be transferred by respondent No.3. The Lease Agreement dated 25.05.2006 is annexed hereto ANNEXURE-“A”.
4. That in 2005 the petitioner entered into negotiations with the respondent No.2 Foundation for transfer of the said godowns in his favour. Permission was obtained from the respondent No.2 Foundation in accordance with clause 6 of the Lease Agreement dated 25.05.2006. The respondent No.3 Bank vide its letter dated 16.03.2006 informed the petitioner that respondent No.2 Foundation had approved the transfer of the said godowns. By a further letter dated 22.03.2006, the petitioner was informed of the procedure by which he was required to pay the respondent No.3 Bank the consideration for the transfer of the said property. The consideration value of the said property was fixed at Tk. 2.30 crores. It was stated that after necessary payments were completed, possession of the said godowns (measuring 5047 square feet) would be handed over to the petitioner. Upon payment of the amount of Tk. 2.30 crores as stated above, the petitioner was handed over the possession of the said property on 29.05.2006.
5. That thereafter the respondent No.2 Foundation vide its letter dated 14.09.2006 issued to the respondent No.3 bank (with a copy issued to the petitioner) stated that the transfer of the said property had been approved by the said Foundation subject to payment of Tk. 7,50,000.00 as transfer fees. It was also stated that 30% of the said godowns would have to be returned to the respondent No.2 Foundation and that 70% would be retained by the leaseholder (i.e the petitioner). This was reiterated in the letters of the respondent No.2 Foundation dated 23.10.2006 and 14.11.2006 both of which appear in Schedule –“Ga” and Schedule “Ua” of the plaint. The petitioner was agreeable to return 30% of the said godowns to the respondent No.2 Foundation and retain 70%. 70% of the said godowns ( i.e 70% of 5047 square feet) is equivalent to 3533 square feet. The petitioner agreed to take lease of the 3533 square feet of the said godowns and return the remainder to the respondent No.2 Foundation.
6. That the petitioner paid the respondent No.2 Foundation, transfer fees of Tk. 7,50,000.00 vide a Pay Order dated 17.09.2006 issued by Sonali Bank, Baitul Mokarram Branch. Thereafter the petitioner commenced construction of 26 shops in place of the said godowns over only 70% of the area (i.e 3533 square feet). The petitioner has not carried out any construction in 30% of the said godowns. The 26 shops being constructed have Shop Nos.. H-11, H-12, H-13, H-14, H-15, H-16, H-17, H-18, H-19, H-20, I-4, I-5, I-6, I-7, I-7(ka), I-8, I-9, I-10, I-11, I-12, I-13, I-14, I-15, I-15, I-16, I-17 and I-18 and are more fully described in Schedule A. While the shops were being constructed by the petitioner, the respondent No.2 Foundation only executed a Lease Agreement dated 26.12.2006 for a mere 2549 square feet of the said property. As such the Lease Deed was executed for 17 shops out of the total of 26 shops. This represents 50.50 % of the said godowns. However, the petitioner is entitled to receive the 70% of the said godowns (representing 26 shops). Hence, the petitioner filed the said suit. The certified copy of the plaint of the said suit is annexed hereto as ANNEXURE-“B”.
7. That the petitioner is entitled to 70% of the said godowns. He is willing to return 30% of the said godowns to the respondent No.2 Foundation. However, the respondent No.2 Foundation has unlawfully refused to transfer the entire 70% of the said godowns as represented earlier.by the respondents. The petitioner being in possession of the said property, the respondent No.2 Foundation is directing the petitioner to hand over the remainder 49.50% of said property (although the respondent No.2 Foundation is only entitled to 30%). This 49.50% contains 9 (nine) shops of the petitioner having Shop Nos. H-14, H-20, I-6. I-7, I-8, I-11, I-12, and I-13 the details of which are contained in Schedule B below The respondent No.2 Foundation is threatening to forcibly take over possession of the 49.50% of the said property and demolish the same. In such situation, the petitioner filed an application for temporary injunction under Order 39 Rules 1 and 2 of the code of Civil Procedure before the Fifth Court of Joint District Judge, Dhaka. In the said application it was stated that the petitioner was in possession of the said property. It has been stated in the said application that officials of the respondent No.2 Foundation have threatened to forcibly take possession of the 49.50% of the said property. The said application under Order 39 Rules 1 and 2 of the Code of Civil Procedure has been annexed hereto as ANNEXURE – “C”.
8. That upon filing and moving of the said application, the Fifth Court of Joint District Judge, Dhaka was pleased vide its Order No.2 dated 06.09.2007 to direct the respondent No.2 to show cause within 10 days as to why it shall not be restrained by any order of temporary injunction from dispossessing the petitioner. The Notice of Show Cause was served on the respondent No.2 on 25.09.2007. The period of 10 days has elapsed. Till the date of filing of the present civil revisional application, the respondent No.2 has not replied to the Notice of Show Cause. The Order Sheet of Title Suit No. 248 of 2007 is annexed hereto as ANNEXURE – ‘D”
9. That in such situation, the petitioner on 08.10.2007 filed an application under section 151 of the Code of Civil Procedure (“the said application) stating that the respondent No.2 without replying to the Notice of Show Cause was making attempts to unlawfully dispossess the petitioner. The Fifth Court of Joint District Judge, Dhaka fixed 28.10.2007 for hearing of the said application under section 151. The said application filed under section 151 is annexed hereto as ANNEXURE – “E”.
10. That the said application under section 151 of the Code of Civil Procedure was heard on 28.10.2007. The learned Court vide its Order No.7 dated 28.10.2007 (“impugned Order”) was pleased to reject the application of the petitioner. The learned Court observed that the respondent No.2 had failed to reply to the Notice of Show Cause within the stipulated time. It also observed that statements had been made by the petitioner (on affidavit) that the petitioner being in possession and that the respondent No.2 was attempting to dispossess him. However, the learned Court refused to pass an order of injunction. The relevant portion of the impugned Order is quoted below:-
D‡jøL¨ GLv‡b ev`xi AvcvZZt ¯^Z¡ A¯úó| d‡j prima facie case we`¨gvb bvB| Balance of Convenience & inconvenience ev`xi cÖwZK~‡j, GgZe¯’vq AÎ `iLv¯Í GB ch©v‡q we‡ePbv †hvM¨ bq weavq bv-gÄyi Kiv n‡jv|
11. That although the Hon’ble Court observed that the petitioner had made statements as to their possession and attempts of the respondent No.2 to dispossess the petitioner, the learned Court held that the petitioner had failed to show that he had a prima facie case. The learned Court without considering prima facie case considered the question of title. The issue of title cannot be considered in an interlocutory application. Title relates to the merits of the case and should be dealt with in the hearing of the suit. In any case, there were adequate documents before the learned Court proving the petitioner’s title.
12. That the petitioner admittedly being in possession, there is a prima facie case in favour of the petitioner. Moreover, the Lease Agreement dated 25.05.2006 in favour of the respondent No.2 ( the predecessor-in-interest of the petitioner) clearly show the area of the said godowns. The petitioner was entitled to 70% of this property as per the various correspondences with the respondent No.2 Foundation.
13. That further, the learned Court merely held that “Balance of Convenience & inconvenience ev`xi cÖwZK~‡j”. It did not state the reasons or facts on which it had come to such a finding. Although, it had been stated on affidavit by the petitioner (which has not yet been controverted) that he is in possession and the respondents are attempting to dispossess him, the learned Court has made such a perverse finding. If the petitioner is forcibly dispossessed, the respondent No. 2 Foundation will demolish the structures built by it for the purpose of renting the same out to shop-owners. The respondent No.2 Foundation will convert the same for their own use and damage the petitioner’s property.
14. That further the Fifth Court of Joint District Judge, Dhaka failed to consider that under Order 39 Rule 1 of the Code of Civil Procedure, an order of injunction may be passed where any property in a dispute is in danger of being damaged. The learned Court failed to appreciate that the respondents were attempting to forcibly take over possession and would damage the said property in doing so. The learned Court passed the impugned order without any application of judicial mind.
15. That in passing the impugned order rejecting the application of the petitioner under section 151 of the Code of Civil Procedure, the learned Court has also in effect, rejected the application under Order 39 Rules 1 and 2. The learned Court held in the impugned order that no prima facie case had been proved, nor was there any balance of convenience in favour of the petitioner. As such, the application under Order 39 Rules 1 and 2 has also been rejected.
16. That in the event that Rule is issued, the petitioner prays that an ad interim order of injunction may be passed against the respondent No.2 restraining him from dispossessing the petitioner from his share of 70% of the said property (i.e. 3533 square feet). As stated above the petitioner being in possession, there is a prima facie case in favour of the petitioner. Moreover, Lease Agreements of the respondent No.3 (immediate predecessor of the petitioner) and correspondences of the respondent No.2 clearly evidence that the petitioner was entitled to receive 70% of 5047 square feet (i.e 3533 square feet) of property situated ay Baital Mokarram. The petitioner has paid the entire transfer fees and consideration value for the said property on the representation that he was being leased 70% of the said godowns. The balance of convenience and inconvenience is against dispossession of the petitioner. Moreover, the respondents are threatening forcible action which will damage the property. The respondents will alter the property for their own use, causing loss to the petitioner. The property in question being immoveable property, pecuniary compensation is not adequate. The respondent No. 2 has directed the petitioner to hand over possession of 9 of 26 shops constructed by the petitioner. These 9 (nine) shops having Shop Nos.H-14, H-20, I-6. I-7, I-8, I-11, I-12, and I-13 are over and above the 30% of the area of the said godowns, which the respondent No.2 is entitled to receive. The nine shops represent an are of 984 square feet which falls outside the 30% area, which the respondent No.2 Foundation is entitled to receive. The petitioner is still in possession of the above-mentioned 9 (nine) shops and has not consented to hand over possession of the same to the respondent No.2 Foundation. Hence, this Hon’ble Court may be pleased to pass an ad interim order of injunction as stated above. A letter of the respondent No.2 dated 20.08.2007 directing the petitioner to hand over possession of 9 (nine) shops is annexed hereto as ANNEXURE –“F”.
17. Being aggrieved by and dissatisfied with the Order No. 7 dated 28. 10.2007 passed by the Fifth Court of Joint District Judge, Dhaka in Title Suit No. 248 of 2007 rejecting the application of the petitioner under section 151 of the Code of Civil Procedure for temporary injunction begs to file this revisional application on the following amongst other:-
G R O U N D S
I. For that the learned Fifth Court of Joint District Judge, Dhaka having considered the question of title summarily in an interlocutory application for temporary injunction made under section 151 of the Code of Civil Procedure, when in fact the issue of title was required to be dealt at the hearing of the suit, committed an error of law, resulting in an error in the Order No.7 dated 28.10.2007 (“impugned Order) occasioning failure of justice.
II. For that the learned Fifth Court of Joint District Judge, Dhaka having failed to consider that the petitioner being in possession of the said property, the prima facie case was in favour of the petitioner, committed an error of law, resulting in an error in the Order No.7 dated 28.10.2007 (“impugned Order) occasioning failure of justice.
III. For that the learned Fifth Court of Joint District Judge, Dhaka having failed to consider that the petitioner being in possession of the said property, the balance of convenience and inconvenience was in favour of the petitioner, committed an error of law, resulting in an error in the Order No.7 dated 28.10.2007 (“impugned Order) occasioning failure of justice.
IV. For that the learned Fifth Court of Joint District Judge, Dhaka having failed to consider that the subject matter of the dispute being 26 shops ( i.e. immoveable property) which was in danger of being demolished, pecuniary compensation was not adequate, committed an error of law, resulting in an error in the Order No.7 dated 28.10.2007 (“impugned Order) occasioning failure of justice.
V. For that the learned Fifth Court of Joint District Judge, Dhaka having failed to consider that the property in dispute being in danger of being damaged, an order of temporary injunction was required to be passed under Order 39 Rule 1 and 2 of the Code of Civil Procedure, committed an error of law, resulting in an error in the Order No.7 dated 28.10.2007 (“impugned Order) occasioning failure of justice.
VI. For that in the facts and circumstances of this case the learned Court below acted illegally and as such the impugned order is liable to be set aside.
Wherefore, it is humbly prayed that your Lordships would graciously be pleased to issue a Rule upon the opposite party No. 2 as to why the impugned Order No. 7 dated 28.10.2007 passed by the Fifth Court of Joint District Judge, Dhaka in Title Suit No. 248 of 2006 dismissing the application for temporary injunction filed under section 151 of the Code of Civil Procedure shall not be set aside and why the respondent No.2 shall not be restrained by an order of injunction from interfering with and dispossessing the petitioner from the property mentioned in Schedule B and upon hearing and cause being shown, if any, make the Rule absolute.
AND
Pending hearing of the Rule pass an ad interim order of injunction against the opposite party No.2 restraining it from dispossessing the petitioner or in any manner interfering with the peaceful possession by the petitioner of the property described in Schedule B.
And for this act of kindness, the petitioner, as in duty bound, shall ever pray.
S C H E D U L E- A
All that piece and parcel of land measuring approximately 3533 square feet situated at the Ground Floor of Baitul Shopping Centre, P.S. Motijheel, District: Dhaka containing 26 shops being Nos. H-11, H-12, H-13, H-14, H-15, H-16, H-17, H-18, H-19, H-20, I-4, I-5, I-6, I-7, I-7(ka), I-8, I-9, I-10, I-11, I-12, I-13, I-14, I-15, I-15, I-16, I-17 and I-18 built in the place of 5 Godowns (Formerly Godown Nos. 2 to 6)
S C H E D U L E- B
All that piece and parcel of land measuring approximately 984 square feet situated at the Ground Floor of Baitul Shopping Centre, P.S. Motijheel, District: Dhaka containing 9 shops being Nos H-14, H-20, I-6. I-7, I-8, I-11, I-12, and I-13 built in the place of 5 Godowns.
AFFIDAVIT
I, X son of late Y of ____________________________, aged about________ years, by faith _________________, by occupation Service and by nationality Bangladeshi do hereby solemnly say and affirm as follows :-
01. That I am the petitioner in this case and as such acquainted with the facts and circumstances of the case. I am competent to swear this affidavit on behalf of the petitioners.
02. That the statements made hereinabove are true to my knowledge and matters of record which I verily believe to be true and rests are submission before this Hon’ble Court.
Prepared in my office :
(______________) _________________________
Advocate DEPONENT
_________________
____________________ The deponent is known to me and identified by me.
Solemnly affirmed before me by
the said X on this
the ________day of ______________ at
the Supreme Court premises, Dhaka
at A.M./P.M ( ________________ )
Advocate.
COMMISSIONER OF AFFIDAVITS
SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION AT DHAKA.