Aa. Na. Ma. Selim Ullah. Vs. Kamrun Nahar Kamal, (Ahmed Sohel, J.)

Case No: Civil Revision No. 3929 of 2014

Judge: S. M. Emdadul Hoque, J And Ahmed Sohel, J.

Court: High Court Division,

Advocate: Mr. Saifuddin Chowdhury, Advocate ,

Citation: 2019(2) LNJ

Case Year: 2018

Appellant: Aa. Na. Ma. Selim Ullah

Respondent: Kamrun Nahar Kamal and others

Subject: Code of Civil Procedure

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

S. M. Emdadul Hoque, J

And

Ahmed Sohel, J.

 

Judgment on

09.10.2018

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Aa. Na. Ma. Selim Ullah

. . .Defendant-Petitioner

-Versus-

Kamrun Nahar Kamal and others

. . .Plaintiff-Opposite parties.

Code of Civil Procedure (V of 1908)

Order VII, Rule 11

To decide the fate of a plaint under Order VII Rule 11 of the Code of Civil Procedure, averments in the plaint have to be read without looking at the defense and as such whether the registered deed of partition is a sale deed or a decree of Court or a family settlement deed among the co-sharers for their ancestral properties and registration and endorsement was genuine, regular and in order and plaintiffs have no possession over the suit land rather the petitioner is in possession of the same, in our view all these issues can only be decided by taking evidence by the trial Court.                             . . .(31 and 36)

Code of Civil Procedure (V of 1908)

Order VII, Rule 11

It appears that the grounds urged for in the application for rejection of plaint are absolutely the subject matter of evidence, which cannot be decided before taking evidence.     . . . (34)

Ismat Zerin Khan Vs. The World Bank and others 11 MLR (AD) 58; Bangladesh Jatiya Samabaya Shilpa Samity Ltd. Vs. M/S Shan Hosiery, Proprietor Md. Abu Taleb and others, 12 BLT (AD) 253; Abdul Malek Sawdagar Vs. Md. Mahbubey Alam, 57 DLR (AD)18, Nur Muhammad Vs. Mainuddin, 39DLR (AD) 1; Abul Khair (Md) Vs. Pubali Bank Ltd., 53 DLR (AD) 62, Bangladesh Shilpa Rin Sangstha Vs. Rahman Textile Mills Ltd., 51 DLR (AD) 221, Nurunnessa Vs. Mohiuddin Chowdhury 49 DLR (AD) 234, Eastern Bank Ltd Vs. Sub-Ordinate Judge, 49 DLR 531, Anath Bandhu Guha & Sons Ltd. Through its Attorney Md. Sirajul Hoq Vs. Babu Sudhangshu Shekhar Halder, 42 DLR (AD) 244, Kazi (Md) Shahajahan and another Vs. Md. Khalilur Rahman Madbar and others, 54 DLR (AD) 125; M/S Crescent Petroleum Ltd Vs. Manchegorsk and another AIR 2000 Bom 161 at 168 and Jalil and others Vs. Islamic Bank Bangladesh Limited and others 53 DLR (AD) 12 ref.

Mr. Saifuddin Chowdhury, Advocate

. . . For the petitioner

Mr. M. Sadequr Rahman, Advocate

. . . For the opposite party Nos.1-6

JUDGMENT

Ahmed Sohel, J:  This Rule was issued calling upon the opposite party Nos. 1-6 to show cause as to why the impugned Order dated 27.03.2014 passed by the learned Joint District Judge, 1st Court, Chattogram in Other Suit No.09 of 2011 rejecting an application for rejection of the plaint should not be set-aside. 

2.             Relevant facts for disposal of the Rule, in short, are that the predecessor of the opposite parties No.1-5 and opposite party No.6 herein on 10.01.2011, as plaintiffs filed Other Suit No.09 of 2011 before the Court of Joint District Judge, 1st Court, Chattogram for declaration and cancellation of partition deed No.2990 dated 01.03.2009 executed and registered between them with some auxiliary relief on the contentions amongst others that the parties of the instant suit being legal heirs of deceased Wahidul Hoque and the plaintiffs and others agreed to relinquish their respective shares in favour of other co-sharers. The Relinquish/Release was part of compromise upon family settlement vide registered deed of partition No.2990 dated 01.03.2009 and also all the parties of the suit were benefited by the transaction made between them.  

3.             During pendency of the suit the defendant No.3 filed an application on 16.06.2011 under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure, praying for rejecting the plaint of Other Suit No.09 of 2011 on the grounds amongst others that the suit has been filed without cause of action and the suit is also barred by law.

4.             The plaintiffs contested the said application filed under Order VII Rule 11 read with section 151 of the Code of Civil Procedure of the defendant No.3, by filing a written objection denying all the material allegations made in the said application.

5.             The defendant No.12 submitted a written statement by denying the averments made in the plaint and supporting the family settlement of their ancestral properties vide registered deed of partition No.2990 dated 01.03.2009. In the said written statement, she asserts that the plaintiffs have no right “Lawful exercise and others prevent of right of this defendant” and she prayed for dismissing the suit with cost.

6.             The predecessor of the opposite party Nos.1-5 and opposite party No.6 instituted the instant suit for cancellation of the partition deed No.2990 dated 01.03.2009 as they are the party/executants of the same but the petitioner Nos.1-5 substituted as 1(Ka)-1(Uma) vide Order No.17 dated 14.03.2013 as the legal heirs of deceased plaintiff No.1 and on this point only the suit for cancellation of deed is not maintainable in the eye of law.

7.             After hearing both the parties, the learned Joint District Judge, 1st Court, Chattogram passed the impugned Order dated 27.03.2014 in Other Suit No.9 of 2011 and thereby rejected the application filed under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure.

8.             Being aggrieved by and dissatisfied with the impugned Order dated 27.03.2014 passed by the learned Joint District Judge, 1st Court, Chattogram in Other Suit No.09 of 2011, the present defendant-petitioner filed this revisional application before this Court under Section 115 (1) of the Code of Civil Procedure and obtained the present Rule and stay.

9.             Mr. Saifuddin Ahmed Chowdhury, the learned Advocate appearing on behalf of the petitioner supports the Rule and submits that the learned Judge of the trial Court erred in law in rejecting the application for rejection of plaint without applying its judicious mind to the facts and circumstances of the case and thereby committed an error of law occasioning failure of justice.

10.         He next submits that the predecessor of the opposite party No.1-5 and opposite party No.6 instituted the instant suit for cancellation of the partition deed No.2990 dated 01.03.2009 as they are the parties/executants of the same but the petitioner Nos.1-5 substituted as 1 (Ka)-1(Uma) vide Order No. 17 dated 14.03.2013 as the legal heirs of deceased plaintiff No.1, hence the suit for cancellation of partition deed being not maintainable in the eye of law and therefore the plaint is liable to be rejected for ends of justice.

11.         He further submits that the learned judge of the trial Court on plain reading of the plaint ought to have considered that the parties of the instant suit being legal heirs of deceased Wahidul Hoque and the plaintiffs and others agreed to relinquish their respective shares in favour of other co-sharers and the relinquish/release was part of compromise upon family settlement vide registered deed of partition No.2990 dated 01.03.2009 and also all the parties of the suit were benefited by the transaction made between them, hence the plaintiffs are estopped from claiming their inheritance shares by cancelling the said registered deed and non consideration of this vital aspect of the suit being an error of law, the impugned order is liable to be set aside for ends of justice.

12.         He next submits that the plaintiffs executed the above written registered deed of partition by admitting its averments as true and correct, hence they are legally estopped by deed against the parties of the said deed and also they are debarred from denying a certain material facts asserted in it, that is why the plaint is liable to be rejected for ends of justice.

13.         He further pointed out that on reading of the plaint as a whole of the suit it is crystal clear that the alleged registered deed of partition either is not a sale deed or a decree of a Court rather it is a family settlement deed among the co-sharers for their ancestral properties, hence it cannot be cancelled at the instance of the 2 (two) co-sharers as per provision of section 39 of the Specific Relief Act as other signatories of the said deed did not deny the execution and registration of the said deed.

14.         He further submits that the learned Judge of the trial Court should have considered that in adjudicating upon the validity of the impugned registered partition deed on the tracing the processes of enquiry before registration, admission and denial of execution endorsement of particulars etc. as evident in sections 34,35,58 and 59 respectively of the Registration Act, 1908 as invariably culminate in the granting of a certificate of registration under section 60(2) of the said Act and non consideration of this vital aspect of the suit being an error of law, the impugned order is liable to be set aside for ends of justice. 

15.         He finally submits that in exercise of its inherent power under Section 151 of the Code of Civil Procedure, the Court can reject a plaint where the case is not covered by Order VII Rule 11 of the Code of Civil Procedure for ends of justice and to prevent the abuse of the process of the Court below and accordingly he prayed for making the Rule Absolute.

16.         On the other hand, Mr. M. Sadequr Rahman, the learned Advocate appearing on behalf of the plaintiffs-opposite parties opposes the Rule and submits that there is a settled principle of law when the plaint should be rejected and the learned Judge of the trial Court rightly rejected the application, for rejection of plaint in particular the present suit cannot be finally adjudicated without taking evidence and also this suit is not barred by any law.

17.         He further submits that whether the registered deed of partition is a sale deed or a decree of court or a family settlement deed among the co-sharers for their ancestral properties and registration and endorsement was genuine, regular and in order and the petitioner is in possession over the suit land; all these issues raised in the application for rejection of plaint can only be decided by taking evidence by the trial Court. Therefore, the instant Rule should be discharged for ends of justice.

18.         He further submits that it has been held in the case of Ismat Zerin Khan Vs. The World Bank and others reported in 11 MLR (AD) 58 that:-

“Plaint cannot be rejected under Order VII Rule 11 of the Code of Civil Procedure either on the question of law or on fact before the filing of the written statement by the defendant.”

19.         He finally submits that in the instant case the defendants have not yet filed their written statements and as such he prayed for discharging the Rule.

20.         We have heard the submissions of the learned Advocates of both the parties at length and perused the revisional application, the impugned order, the papers and documents as available on the record and the decisions of our Apex Court as well as of the Indian jurisdiction very carefully. 

21.         For convenience of understanding, Order VII Rule 11 is quoted below:-

“11. The plaint shall be rejected in the following cases:-

(a)    Where it does not disclose a cause of action;

(b)   Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so;

(c)    Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so; and

(d)   Where the suit appears from the statement in the plaint to be barred by any law.”

22.         It has been held in the case of Bangladesh Jatiya Samabaya Shilpa Samity Ltd. Vs. M/S Shan Hosiery, Proprietor Md. Abu Taleb and others, reported in 12 BLT (AD) 253, which is quoted below:-

“With regard to rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure, the High Court Division rightly found that in deciding the question as to whether a plaint is liable to be rejected the court is always required to peruse the plaint only and court is not permitted to travel beyond the plaint to dig out grounds to reject the plaint which is a settled principle of law.”

23.         Further, after examining the series of decisions of our Apex Court regarding Order VII Rule 11 of the Code of Civil Procedure, we may refer some of the decisions reported in Abdul Malek Sawdagar Vs. Md. Mahbubey Alam, 57 DLR (AD)18, Nur Muhammad Vs. Mainuddin, 39DLR (AD) 1; Abul Khair (Md) Vs. Pubali Bank Ltd., 53 DLR (AD) 62, Bangladesh Shilpa Rin Sangstha Vs. Rahman Textile Mills Ltd., 51 DLR (AD) 221, Nurunnessa Vs. Mohiuddin Chowdhury 49 DLR (AD) 234, Eastern Bank Ltd Vs. Sub-Ordinate Judge, 49 DLR 531, Anath Bandhu Guha & Sons Ltd. Through its Attorney Md. Sirajul Hoq Vs. Babu Sudhangshu Shekhar Halder, 42 DLR (AD) 244, Kazi (Md) Shahajahan and another Vs. Md. Khalilur Rahman Madbar and others, 54 DLR (AD) 125 and Ismat Zerin Khan Vs. the World Bank and others, 11 MLR (AD) 58, wherein the principles laid down as under:-

(I)        The well settled principle of laws relating to Order VII Rule 11 are that the plaint can be rejected only on reference to plaint itself as whether it is barred in any of the four clauses of Order VII Rule 11 of the Code of Civil Procedure.

(II)     Plaint cannot be rejected on defense material as well as on mixed question of law and fact.

(III)  Where evidence is required and where there is material, plaint cannot be rejected.

(IV)  Plaint can be rejected if it does not disclose a cause of action and barred by any law.

(V)     There is no hard and fast Rule when an application for rejection of plaint is to be filed but ends of justice demands that it must be filed at the earliest opportunity.

(VI)  Plaint cannot be rejected before filing of the written statement. 

24.         Now, let us focus in the Indian jurisdiction regarding the principles of rejection of plaint. In the case of M/S Crescent Petroleum Ltd Vs. Manchegorsk and another AIR 2000 Bom 161 at 168 it has been held that:-

‘This power ought to be used only when the Court is absolutely sure that the plaintiff does not have an arguable case at all. The exercise of this power though arising in Civil Procedure can be said to belong to the realm of criminal jurisprudence and any benefit of the doubt must go to the plaintiff, whose plaint is to be branded as an abuse of the process of the Court. This jurisdiction ought to be very sparingly exercised and only in very exceptional cases. The exercise of this power would not be justified merely because the story told in the pleading was highly improbable or which may be difficult to believe.’

25.         Now, let us consider the inherent power of the Court, where a plaint may be rejected by the Court even the provisions of Order VII Rule 11 of the Code of Civil Procedure are found not to be applicable.

26.         In the case of Abdul Jalil and others Vs. Islamic Bank Bangladesh Limited and others reported in 53 DLR (AD) 12, it has been held that:-

“Now it is a well settled principle of law that if the continuation of the suit is found to be an abuse of the process of the court, if the suit is foredoomed or if the ultimate result of the suit is as clear as the day light, the suit should be buried at its inception by rejecting the plaint by invoking inherent powers of the Court provided under section 151 of the Code of Civil Procedure.”

27.         Further, on perusal of the facts of the present case, it appears to be distinguishable from the case reported in 53 DLR (AD) 12. In exceptional situation a plaint can be rejected under Section 151 of the Code of Civil Procedure even if it does not come within the mischief of the Rule, but such situation is absent in the present case. 

28.         Now, keeping in mind, all the principles relating to Order VII Rule 11 of the Code of Civil Procedure, we have thoroughly gone through the plaint and considered the submissions of the learned Advocates for both the parties very carefully.

29.         The contentions of the learned Advocate for the petitioner are that the plaint is liable to be rejected as because the alleged registered deed of partition either is not a sale deed or a decree of a court rather it is a family settlement deed among the co-sharers for their ancestral properties and cannot be cancelled at the instance of the two co-sharers as per provision of Section 39 of the Specific Relief Act and further non-consideration of the validity of the impugned registered partition deed under Section 60(2) of the Registration Act, 1908, the trial Court has committed an error of law, in our opinion all these issues have no manner of application in the present case.

30.         Further, the submissions of the learned Advocate for the opposite parties are that the defendants have not yet filed their written statements, are not fully correct as it appears that defendant No.12 has filed a written statement denying the averments made in the plaint. However, defendant No.3 who has filed the application for rejection of plaint did not file the written statement.

31.         In the light of the clear pronouncement of law relating to Order VII Rule 11, it is well settled principle of law that to decide the fate of a plaint under Order VII Rule 11 of the Code of Civil Procedure, averments in the plaint have to be read without looking at the defense and as such whether the registered deed of partition is a sale deed or a decree of Court or a family settlement deed among the co-sharers for their ancestral properties and registration and endorsement was genuine, regular and in order and plaintiffs have no possession over the suit land rather the petitioner is in possession of the same, in our view all these issues can only be decided by taking evidence by the trial Court.

32.         It has been decided by our Apex Court in the Case of Head Mistress, Hazrat Shah Ali Girl’s High School Vs. Md. Ibrahim reported in 65 DLR (AD) 300 that, “The suit cannot be finally adjudicated without taking evidence. The High Court Division acted beyond his jurisdiction and finally adjudicated the case which he cannot do before trial and he also cannot allow the prayer of the plaintiff directly asking authority to give fresh appointment to the plaintiff from the date of dismissal.”

33.         Similar view has been expressed in the recent case of Comprehensive Holdings Ltd. Vs. MH Khan Monju reported in 69DLR (AD) 420.

34.         From the above discussions, it appears that the grounds urged for in the application for rejection of plaint are absolutely the subject matter of evidence, which cannot be decided before taking evidence.

35.         Now, on plain reading from the statements of plaint of the present case it is evident that the same clearly discloses the cause of action, the relief claimed is not under valued, the plaint was not written upon the paper insufficiently stamped and not barred by any other law.

36.         So, it is our considered view that the rejection of a plaint is a serious matter and the Court has a duty to examine the plaint very carefully when considering the issues relating to Order VII Rule 11 of the Code of Civil Procedure. It cannot be ordered without satisfying the requirement of the above said provision and only in very exceptional cases, this power should be exercised.

37.         Considering the above facts and circumstances of the case and after examining the decisions of our Apex Court as well as of the Indian Jurisdiction, we can safely come to a conclusion that the learned Court below has not committed any error of law in rejecting the application, for rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure, rather the learned Court below rightly passed the impugned Order dated 27.03.2014.

38.         In view of the above discussions, we do not find any merit in the Rule. 

39.         In the result, the Rule is discharged without any order as to costs.

40.         However, since this is a long pending case, the trial court is hereby directed to dispose of the Other Suit No.09 of 2011 expeditiously, preferably within 06(six) months from the date of receipt of this judgment.   

41.         The order of stay granted earlier by this court is hereby recalled and vacated.

42.         Communicate the judgment and order to the Court below at once.

Ed.