A. K. M. Fazlul Haque and others Vs. Bazlur Rahman and others, 2016(1) LNJ (AD) 56

Case No: Civil Appeal No. 94 of 2006

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Syed Mahbubar Rahman,Mr. Nurul Amin,,

Citation: 2016(1) LNJ (AD) 56

Case Year: 2016

Appellant: A. K. M. Fazlul Haque and others

Respondent: Bazlur Rahman and others

Delivery Date: 2015-05-06

APPELLATE DIVISION
(CIVIL)
 
Md. Abdul Wahhab Miah, J.
Muhammad Imman Ali, J.

Judgment on
06.05.2015
 
A. K. M. Fazlul Haque and others
... Appellants
Versus
Bazlur Rahman @ Md. Bazlur Rahman and others
...Respondents
 
Code of Civil Procedure (V of 1908)
Order XXXIX, Rule 7
The provisions of Order XXXIX of the Code are intended to deal with property during the pendency of trial of a suit by way of granting temporary injunction and interlocutory orders. Rule 7 of Order XXXIX of the Code provides for, inter alia, inspection of any property which is the subject matter of such suit. It must be remembered that the purpose of such inspection is to see the physical condition of the property and to pass any interim order keeping in mind how the state or condition of the property may be affected by any interim change or by the passage of time while the suit is under trial. Suffice it to say that this provision does not apply to ascertainment of possession, which appears to be the purpose of the application. Hence, the Courts below as well as the High Court Division have rightly held that the application under Order XXXIX Rule 7 of the Code is not tenable. . . . . (11)
 
Code of Civil Procedure (V of 1908)
Order XXVI, Rule 9
Essentially the purpose of local investigation under this provision is to ascertain the nature and feature and market value etc. of any property. Again, quite clearly this provision is not meant for ascertaining possession of property, which can only be done by taking evidence in the course of trial.  . . . . (13)
 
For the Appellants: Mr. Syed Mahbubar Rahman, Advocate-on-Record.
For Respondent Nos. 1 : Mr. Nurul Islam Chowdhury,  Advocate-on-Record
For Respondent Nos. 2-7 : Not represented.

Civil Appeal No. 94 of 2006
 
JUDGMENT
 
Muhammad Imman Ali, J:
 
This Civil Appeal, by leave, is directed against the judgment and order dated 25.04.2005 passed by a Single Bench of the High Court Division in Civil Revision No. 1794 of 2004 making the Rule absolute.

The facts of the case, in brief, are that the appellants as plaintiffs filed Title Suit No. 276 of 1998 in the Court of Senior Assistant Judge, Savar for permanent injunction stating, inter alia, that they were in possession of 2080 aujutangsha of land in Plot No. 23, and 1.16½ acres of land in Plot No. 25 by fencing, earth filling, planting trees and constructing houses thereon.

The respondents as defendant Nos. 3 and 4 contested the suit by filing joint written statement denying the material averments of the plaint contending, inter alia, that they are in possession of the land of Plot No. 25 by planting trees of different types, making houses thereon, etc.

After hearing the parties and considering the materials on record the Senior Assistant Judge, Savar, Dhaka, decreed the suit.

Against the said judgement and decree of the trial Court, the defendants filed Title Appeal No. 88 of 2003 before the District Judge, Dhaka, and the matter was transferred to the Court of Additional District Judge, 7th Court, Dhaka for disposal. During pendency of the appeal the defendants filed an application under Order XXXIX Rule 7 of the Code of Civil Procedure (the Code) praying for local inspection. After hearing the parties, the learned Additional District Judge by his order dated 08.05.2004, rejected the application.

Being aggrieved, the defendants filed Civil Revision No. 1794 of 2004 before the High Court Division and obtained Rule, which upon hearing the parties and considering the materials on record, was made absolute. Hence, the plaintiffs filed civil petition for leave to appeal No.1124 of 2005.
Leave was granted on the following submissions of the learned Counsel appearing for the petitioners:

“(1) The ascertainment of possession is a judicial act which has to be ascertained by the Court upon evidence, and an Advocate Commissioner is not competent to ascertain possession and the High Court Division suo moto and without assigning any reason made the Rule absolute thereby allowed admission of additional evidence in a modified form though the appellate Court, after assigning reasons, rejected the application for local inspection being additional evidence in modified form and thus the High Court Division committed an error occasioning failure of justice in making the Rule absolute.”
 
Mr. Syed Mahbubar Rahman, learned Advocate-on-Record appearing on behalf of the appellants made submissions in line with the grounds upon which leave was granted. The learned Advocate further submitted that the High Court Division failed to appreciate that possession cannot be ascertained by local investigation under order XXVI Rule 9 of the Code of Civil Procedure which the High Court Division ultimately directed. He further submitted that the appellate Court rejected the application for local inspection after assigning cogent reasons, but the High Court Division, having accepted that an application under Order XXXIX Rule 7 was not tenable, seriously erred in observing that the appellate Court could have passed an order directing local investigation under Order XXVI Rule 9 of the Code.

Mr. Md. Nurul Islam Chowdhury, learned Advocate-on-Record appearing on behalf of the respondent No. 1 made submissions in support of the impugned judgement and order of the High Court Division.

We have considered the submissions of the learned Advocates-on-Record appearing for the parties concerned, perused the impugned judgment and order of the High Court Division and other connected papers on record.

The provisions of Order XXXIX of the Code are intended to deal with property during the pendency of trial of a suit by way of granting temporary injunction and interlocutory orders. Rule 7 of Order XXXIX of the Code provides for, inter alia, inspection of any property which is the subject matter of such suit. It must be remembered that the purpose of such inspection is to see the physical condition of the property and to pass any interim order keeping in mind how the state or condition of the property may be affected by any interim change or by the passage of time while the suit is under trial. Suffice it to say that this provision does not apply to ascertainment of possession, which appears to be the purpose of the application. Hence, the Courts below as well as the High Court Division have rightly held that the application under Order XXXIX Rule 7 of the Code is not tenable.

The High Court Division has observed that the appellate Court could have passed an order directing local investigation under Order XXVI Rule 9 of the Code. This provision comes under the heading “Commissions for local investigations” and provides as follows:

“9. In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount or any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court within such time not exceeding three months as may be fixed by the Court:
Provided that the Court may, on the prayer of the Commissioner and on sufficient cause being shown, extend the time.” 

Essentially the purpose of local investigation under this provision is to ascertain the nature and feature and market value etc. of any property. Again, quite clearly this provision is not meant for ascertaining possession of property, which can only be done by taking evidence in the course of trial. 

In view of the above discussions, we are of the opinion that the High Court Division was in error in making the Rule absolute. The appellate Court rightly rejected the application.

Accordingly, the appeal is allowed, without however, any order as to costs. The impugned judgement and order of the High Court Division is set aside.

         Ed.