A. K. M. Abdur Rob and others Vs. Md. Nurul Islam Mridha, 3 LNJ (2014) 339

Case No: Civil Revision No. 2432 of 2007

Judge: Sheikh Abdul Awal,

Court: High Court Division,,

Advocate: Mr. Md. Ibrahim Khalil,Ms. Bahasti Marjan,Mr. A. K. Mojibur Rahman,,

Citation: 3 LNJ (2014) 339

Case Year: 2014

Appellant: A. K. M. Abdur Rob and others

Respondent: Md. Nurul Islam Mridha

Subject: Parties to a suit,

Delivery Date: 2014-03-06


HIGH COURT DIVISION
(Civil Revisional Jurisdiction)
 
Sheikh Abdul Awal, J.

Judgment on
6.3.2014
  A. K. M. Kazi Abdur Rob being Dead his heirs: 1(a) Kazi Abdullah-al-Mahbub and others
. . .Plaintiff-Petitioners
Versus
Md. Nurul Islam Mridha
. . .Defendant- Opposite Party
 

Code of Civil Procedure (V of 1908)
Order I, Rule 10
The law is by now well settled that any one is entitled to be added as a party in a suit even he is a stranger, if he has direct interest, legal or equitable in the dispute. The sole defendant in his written statement stated that the suit is bad for defect of party since the wife of the sole defendant is the owner of the suit property by purchase through the plaintiffs. Hence the wife of the defendant is a necessary party. The judgment and order of the Courts below are set aside. . . . (11, 12 and l4)
 
Mr. Md. Ibrahim Khalil with
Ms. Bahasti Marjan, Advocates   
….For the petitioners.

Mr. A. K. Mojibur Rahman, Advocate.
….For the opposite party No.1.

Civil Revision No. 2432 of 2007
 
JUDGMENT
Sheikh Abdul Awal, J.
 
In this Revisional application under section 115(4) of the Code of Civil Procedure the petitioners called in question the legality and propriety of the impugned judgment and order dated 17.4.2007 passed by the learned Additional District Judge, 8th Court, Dhaka in Civil Revision No.410 of 2006 disallowing the Revision and affirming the order dated 13.8.2006 passed by the learned Senior Assistant Judge, 2nd Court, Dhaka in Title Suit No.399 of 2002.

Short facts necessary for the disposal of the Rule, are that the petitioners as plaintiffs brought the aforesaid Title Suit No.399 of 2002 in the Court of Senior Assistant Judge, 2nd Court, Dhaka for perpetual injunction against the defendant-opposite party.

During the pendency of the suit for peremptory hearing, the plaintiff-petitioners filed an application under Order 1, Rule 10 of the Code of Civil Procedure for adding the wife of sole  defendant as defendant No.2.
The learned Senior Assistant Judge, 2nd Court, Dhaka upon hearing the application by his Order No.34 dated 13.8.2006 rejected the application for addition of party on the finding  that in a suit for permanent injunction like the instant one the wife of the defendant cannot be added as defendant since the plaintiffs allege no threat against her.

The defendant petitioner, thereafter, preferred Civil Revision No.410 of 2006 under section 115(2) CPC before the learned District Judge, Dhaka against the said order dated 13.8.2006. Eventually, the said appeal was transmitted to the Court of Additional District Judge, 8th Court, Dhaka for disposal, who by the impugned judgment and order dated 17.4.2007 disallowed the Revision and affirmed the order of the trial Court dated 13.8.2006 and the instant Revision application is directed against that judgment and order.

Mr. Md. Ibrahim Khalil, the learned Advocate appearing for the petitioners submits that the defendant-opposite party clearly stated in paragraph No.8 of the written statement that the suit is bad for defect of parties inasmuch as the wife of the defendant is owner of the suit property by purchase but the plaintiffs did not implead  her in the suit  though  both the Courts blow without applying its judicial mind into the facts and circumstances of the case and law bearing on the subject most illegally rejected the prayer for addition of party and the same has occasioned failure of justice. This is the only ground urged by the learned Advocate for the petitioners.

Mr. A. K. Mojibur Rahman, the learned Advocate appearing for the defendant-opposite party, on the other hand, opposes the Rule. He submits that the Courts below were perfectly justified in refusing the petitioner’s prayer for addition of party on the clear finding that the wife of sole defendant is not at all necessary party in the instant case.

I have considered the submission of the learned Advocates for both the sides and perused the Revision application, impugned judgment and other materials on record. The only question that is to be decided in the rule is, whether the Courts below have committed any illegality in rejecting the prayer for addition of party. It appears that the plaintiff-petitioners filed a suit for permanent injunction against the sole defendant-opposite party. The defendant-opposite party entered appearance in the suit and filed written statement denying most of the allegations of the plaint. The material portion of the written statement  reads as follows: “মোকদ্দমাটি পক্ষভাব দোষে বারিত, বিবাদীর সএী নালিশা ভূমিতে খরিদ সুত্রে মালিক দখলকার. তাহাকে মোকদ্দমায় পক্ষ না করায় মোকদ্দমাটি পক্ষভাব দোষে অচল ও অরক্ষনীয়”

On that, the plaintiff-petitioners filed an application under Order 1, Rule 10 of the Code of Civil Procedure for adding the wife of the sole defendant as defendant No.2. The trial Court rejected the prayer for addition of party on the ground that since there is no allegation of threat against the wife of sole defendant in a suit for permanent injunction, she is not a necessary party. In revision, the learned Additional District Judge, 8th Court, Dhaka, however, affirmed the order of the trial Court.

As, I have already  noticed that in this case the sole defendant entered appearance in the suit and filed written statement stating  that the suit  is  bad for non-joinder of necessary parties as  the  wife of the sole defendant  is the owner of the suit property by purchase though the plaintiffs did not implead her in the suit.

The proposition of law is by now well settled that  any one is entitled to be added as a party in a suit even he is a stranger, if he has direct interest, legal or equitable, in the dispute.

Admittedly, in this case the sole defendant in his written statement stated that the suit is bad for defect of party since the wife of the sole defendant is the owner of the suit property by purchase though the plaintiffs did not implead her in the suit. Thus, it does not lie in the mouth of the defendant-opposite party that the wife of defendant is not a necessary party. I do not think therefore that the Courts below made a correct approach to the simple problem. The impugned judgment as well as order of the trial Court does not reflect the true position of law and fact.

For the reasons stated above, I am inclined to hold that the learned Additional District Judge, 8th Court, Dhaka seriously erred in law in affirming  the  order dated 13.8.2006 passed by the learned Senior Assistant Judge, 2nd Court, Dhaka in Title Suit No.399 of 2002 rejecting the application for addition of party  without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the subject and the same has resulted in an error in the impugned decision occasioning failure of justice.

The Rule is, therefore,  made absolute without any order as to cost, the impugned judgment and order dated 17.4.2007 passed by the learned Additional District Judge, 8th Court, Dhaka in Civil Revision No.410 of 2006 as well as  order of the trial Court dated 13.8.2006 passed in Title Suit No.399 of 2002 are set-aside and consequently, the application for addition of party dated 13.08.2006 of the plaintiff petitioners is allowed, Nazli Begum, the wife of sole defendant is added as defendant No. 2 in the suit.

Since, the matter has been dragging over a period of 10(ten) years, the trial Court concerned is directed to proceed with the suit expeditiously without giving any adjournment to any of the parties in accordance with law.

Let a copy of this judgment be communicated to the Courts concerned at once.

End.