Abdul Baki and others Vs. Farooque Ahmed, 13 BLC (AD) (2008) 128

Case No: Civil Review Petition No. 88 of 2005

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,Mr. Md. Abu Siddique,,

Citation: 13 BLC (AD) (2008) 128

Case Year: 2008

Appellant: Abdul Baki and others

Respondent: Farooque Ahmed

Subject: Property Law,

Delivery Date: 2007-1-25

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Syed J R Mudassir Husain CJ 
Mohammad Fazlul Karim J
A Kabir Chowdhury J
Md. Joynul Abedin J
 
Abdul Baki and others
..................Petitioners
Vs.
Farooque Ahmed
.……........Respondent
 
Judgment
January 25th, 2007
 
Constitution of Bangladesh, 1972
Article 105
Code of Civil Procedure (V of 1908)
Section 151
Order XXXIX rule 2(3)
The Additional District Judge, Manikgonj who heard the revision case concurred with the trial Court that the plaintiff was in exclusive possession of the suit land on the date of institution of the suit and at the time of issuance of the order of status quo and the plaintiff was dispossessed during pendency of the suit by the defendants. The Additional District Judge also noticed several decision of our courts and held the the Court is empowered to pass order under section 151 of the Code of Civil Procedure even where the application was made under order XXXIX rules 1 and 2 and this can be done for ends of justice and the High Court Division should not interfere against such order under its revisional jurisdiction. The Additional District Judge also noticed the proposition  of law as available under section 151 of the Code of Civil Procedure and held that mandatory injunction would be available if dispossession had taken place during the pendency of the suit or during an order of ad interim injunction. The Additional District Judge came to a clear finding that the plaintiff was in possession of the suit land when the order of status quo was passed and that the plaintiff was dispossessed from the suit market during the pendency of the order of the status quo. Accordingly, by judgment and order dated 7-8-2004 the Additional District Judge dismissed the revisional application and affirmed the decision of the trial Court allowing the prayer for mandatory injunction.

The Rule having been discharged the petitioner moved this Court but the petition for leave to appeal in Civil Petition NO. 329 of 2005 was dismissed on merit. Thereafter, the petitioner again moved this Court for review.

The review not  being an appeal against the impugned judgment or that no fresh or important facts arose for consideration of Appellate Division or that there was any error apparent on the face of the record that has surfaced or that the non-consideration has substantially affected the parties, the matters do not require to be investigated afresh by way of review. …. (8-10)
 
Cases Referred to-
Babul Kanti Das vs. Abul Hashem 47 DLR (AD) 6; Abdul Barek Mia vs. ABM Serajul Islam 20 DLR 501; Abdul Jalil Munshi vs. Abu Bakr Siddique 35 DLR (AD) 42.
 
Lawyers Involved:
Md. Nawab Ali, Advocate-on-Record—For the Petitioners.
Abu Siddique, Advocate-on-Record— For the Respondent.
 
Civil Review Petition No. 88 of 2005.
(From the judgment and order dated 25th June, 2005 passed by this Division in Civil Petition for Leave to Appeal No. 329 of 2005).
 
JUDGMENT
 
Md. Fazlul Karim J.
 
The petitioners seek Leave to Appeal by way of review of the judg­ment and order dated 25-6-2005 passed by this Division in Civil Petition for Leave to Appeal No. 329 of 2005 against the impugned judg­ment and order dated 10-1-2005 passed by the High Court Division in Civil Revision No. 2908 of 2004 discharging the Rule issued against those dated 7-8-2004 of the Additional District Judge, Manikgonj in Civil Revision No.10 of 2004 affirming the interim order of temporary mandatory injunction dated 30-3-2004 passed by the Senior Assistant Judge, Manikgonj in Title Suit No. 60 of 2001.

2. The respondent filed the suit for perma­nent injunction restraining the petitioners from dispossessing him forcibly from the suit property and of taking any possession thereof and also from disturbing him with his peaceful possession therein stating, inter alia, that his father, Abdur Rahman acquired the suit pro­perty from the Industrial Corporation Limited on the basis of an agreement dated 24-3-1954 and purchased shares of the company and subsequently the plaintiff's father orally gifted the suit property to the plaintiff and that after the death of Abdur Rahman the plaintiff started a Miscellaneous Case No. 273 of 1974 for setting aside the ex parte decree obtained by one Afseruddin Ahmed in Title Suit No. 99 of 1967 and obtained a decree and in execution thereof got possession of the suit land through Court and since then he has been in exclusive possession of the suit land. The plaintiff constructed a cinema hall on the suit land but as the cinema business was found not profit­able, the plaintiff decided to construct a market on the suit land and got a plan passed from Manikgonj Pourashava in 1987 and started construction of wall and completed the first floor and undertook to construct the second floor and let out 31 shops of the first floor keeping some space for his own purpose. According to the plaintiff, some of the defen­dants gave nadabipatra relinquishing their claims in the suit land and that the defendants have no title or possession in the suit land.
 
3. After the institution of the suit on 10-6-2001 the plaintiff made a prayer for temporary injunction to restrain the defen­dants from dispossessing the plaintiffs forcibly from the suit property and also from disturbing in any way the plaintiff's posses­sion therein.
 
4. By order dated 10-6-2001 the trial Court directed to issue notices on the defen­dants asking them to show cause within 10 days as to why the prayer for temporary injunction should not be allowed.
 
5. The defendant Nos. 2-7, 9 and 11 appeared in the suit on 13-6-2001 and prayed for time to file written objection, which was allowed and 26-6-2001 was fixed for filing written objection. On 26-6-2001 the defendant Nos.1-11 by filing separate applications prayed for adjournment to file written objection and the plaintiff renewed his prayer for temporary injunction. The trial Court allowed the prayer for adjournment for ends of justice and in consideration of the facts and circumstances of the case passed an order of status quo directing the parties to maintain their respective possession as to the nature and character of the suit land. The plaintiff then filed violation Miscellaneous Case No. 28 of 2001 on 5-7-2001 under Order XXXIX, rule 2(3) of the Code of Civil Procedure claiming that the defendants attempted to dispossess the plaintiff from the suit property but they were however, resisted. Thereafter, the plaintiff again filed violation Miscellaneous Case No. 32 of 2001 on 23-7-2001 under Order XXXIX, rule 2(3) of the Code of Civil Procedure against the defendants alleging that the defendants made an attempt to evict the plaintiffs from the suit property which was, however, resisted. The plaintiff subsequently filed violation Miscellaneous Case No. 37 of 2001 on 13-8-2001 under Order XXXIX, rule 2(3) of the Code of Civil Procedure alleging wrongful attempt to dispossess the plaintiff from the suit property upon violating the order of status quo but ultimately, failed in their attempts. Lastly, the plaintiff filed another- violation Miscel­laneous Case No. 44 of 2001 on 30-9-2001 under Order XXXIX, rule 2(3) of the Code of Civil Procedure alleging a further attempt by the defendants to evict the plaintiff from the suit property. Thereafter, the plaintiff filed an application, under section 151 of the Code of Civil Procedure for restoration of possession of the suit land alleging, inter alia, that the defendants with the help of army personnel arrested the plaintiff and his brothers and with the active help of the police of Manikgonj Police Station took over possession of the suit market in clear violation of the order for status quo passed by the trial Court and have been in occupation of the market upon realising rents from the tenants on threat and duress on and from 1-10-2003. The plaintiff accordingly, prayed for an order on the defendants to restore possession of the suit property including the suit market, as described in the schedule to the application to the plaint.
 
6. The defendants contested the prayer for mandatory injunction by filing a written objection contending, amongst others, that the plaintiff has no title or possession in the suit land and that the defendants are in possession of the same and there was no occasion for granting any order of injunction in mandatory form in favour of the plaintiff asking the defendants to restore possession of the suit market to the plaintiff. The contesting defen­dants therefore prayed for rejecting the application filed under section 151 of the Code of Civil Procedure for restoration of possession of the suit market to the plaintiff.
 
7. The trial Court heard the matter and by order dated 30-3-2004 found that the defendants violated the order of status quo passed by the trial Court and thereby passed an order of eviction of the plaintiffs from the suit property including the suit market. The trial Court also took notice of few decisions reported in 47 DLR (AD) 6, 20 DLR 501, 35DLR (AD) 42 and followed the proposition of law laid down in those decisions holding "The state of things existed just at the date of insti­tution of the suit to prevent the defendants from doing any act to defeat the very purpose, in such case may issue an order in mandatory form to demolish the thing done by the defendant." The trial Court found that the cinema hall situated on the suit land on the basis of a licence in the name of the plaintiff, the payment of holding tax by the plaintiff and payment of income tax by the plaintiff alone including the plan of the market in the plain­tiff's name alone and the agreement with the tenants inducting them into possession of several shops in the suit market including the tenancy agreements with the defendant Nos. 2 and 3 indicated that the plaintiff was in exclusive possession of the suit land and he was dispossessed by the defendants during pendency of the suit with the aid and assistance of the police officers and thus the defendants are liable to restore possession of the suit land to the plaintiff and accordingly by judgment and order dated 30-3-2004 allowed the prayer for temporary injunction in manda­tory form.
 
8. The contesting defendants then prefer­red CR No.10 of 2004 before the District Judge, Manikgonj. The Additional District Judge, Manikgonj who heard the same concurred with the trial Court that the plaintiff was in exclusive possession of the suit land on the date of institution of the suit and at the time of issuance of the order of status quo and the plaintiff was dispossessed during pendency of the suit by the defendants. The Additional District Judge also noticed several decisions of our Courts and held that the Court is em­powered to pass order under section 151 of the Code of Civil Procedure even where the application was made under Order XXXIX, rules 1 and 2 and this can be done for ends of justice and the High Court Division should not interfere against such order under its revisional jurisdiction. The Additional District Judge also noticed the proposition of law as available under section 151 of the Code of Civil Procedure and held that mandatory injunction would be available if dispossession had taken place during the pendency of the suit or during an order of ad interim injunction. The Addi­tional District Judge came to a clear finding that me plaintiff was in possession of the suit land when the order of status quo was passed and that the plaintiff was dispossessed from the suit market during the pendency of the order of status quo. Accordingly, by judgment and order dated 7-8-2004 the Additional District Judge dismissed the revisional appli­cation and affirmed the decision of the trial Court allowing the prayer for mandatory injunction.
 
9. The Rule having been discharged the petitioner moved this Court but the petition for leave to appeal in Civil Petition No. 329 of 2005 was dismissed on merit.  Thereafter, the petitioner again moved this Court for review.
 
10. The review not being an appeal against the impugned judgment or that no fresh or important fact arose for our considera­tion or that there was any error apparent on the face of the record that has surfaced or that the non-consideration has substantially affect­ed the parties, we do not think that the matters urged before us required to be investigated afresh by way of review.
 
The review petition is, accordingly, dismissed.
 
Ed.