Abdul Gafur and others Vs. Hazi Abdul Bashor and others, 2018(1) LNJ 377

Case No: Civil Revision No. 1584 of 2016

Judge: Md. Nuruzzaman, J.

Court: High Court Division,

Advocate: Mr. Purmindu Bikash Das ,

Citation: 2018(1) LNJ 377

Case Year: 2017

Appellant: Abdul Gafur and others

Respondent: Hazi Abdul Bashor and others

Subject: Code of Civil Procedure & State Acquisition and Tenancy Act

Delivery Date: 2018-07-04

years and also to pay  fine of Tk. 10,000/- in default to suffer rigorous imprisonment for one year more. His (Sumon) conviction and sentence under section 324 of the Penal Code is confirmed. Both the sentences shall run concurrently.

116.    In view of the provisions laid down in section 35A(1) of the Code of Criminal Procedure, the total period the convict-appellants Babul and Sumon have been in custody before conviction in connection with this offence shall be deducted from the sentence of imprisonment awarded to them.

117.    The convict appellants Babul and Sumon who are on bail are directed to surrender to their bail bond within one month from the date of receipt of this order failing which the learned Judge of the Court below shall take appropriate step for securing their arrest and to commit them to jail to serve out their remaining part of the sentences.

118.    The convict-appellants Shamsduddin Ahamed Master, Siddique Ahamed, Iqbal Bahar, Abbas, Mosharafuddin alias Bappu, Surat Alam, and Tomon alias Jabed Hossain are discharged from their respective bail bond.

119.    The Office is directed to send down the records at once.

Ed.

 

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Nuruzzaman, J

And

S. H. Md. Nurul Huda Jaigirdar, J.

 

Judgment on

04.12.2017

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Abdul Gafur and others

. . . Pre-emptee-Petitioners

-Versus-

Hazi Abdul Bashor and others

. . . Pre-emptor-Opposite Parties

Code of Civil Procedure (V of 1908)

Order VII, Rule 1 to 9

State Acquisition and Tenancy Act (XXVIII of 1951)

Section 96

To draw the differences between the plaint and the application of pre-emption case we must refer to the provisions Rule 1 to 9 of Order VII of the Code because the legislator codified the requirements of the plaint for different classes of suit as quoted in Rules 1-9 in the Order 7 of the Code but we do not find any such provision of law for the application under section 96 of the Act. Besides the above legal proposition another prescribed form has been laid down in Sub-Rule 44 of Rule 774 of the Civil Rule’s and Order for filing application of pre-emption case. In the referred sub rule it has been shown that any application under section 96 of the Act, 1951 would be registered as Miscellaneous Case. Therefore, it is crystal clear that such an application cannot be treated as suit and description given in the application cannot be treated as pleading of plaint. Moreover, in pre-emption case never drawn up a decree after its disposal but, if the suit is disposed of in either way decree must be drawn up to that effect. So, it is crystal clear that the final order passed in a pre-emption case it is an order not decree.  

. . . (30 to 32)

Code of Civil Procedure (V of 1908)

Section 141 and Order VII, Rule 11

State Acquisition and Tenancy Act (XXVIII of 1951)

Section 96

On perusal of the provision of section 141 it is our considered view that this section would be applicable only for procedural matter so far it can be made applicable. Therefore, we are of the opinion that section 141 of the Code cannot be invoked at the time of passing the substantive justice. From the above discussion in respect of order and decree which determine substantive justice or any of the party in a proceeding resolving the controversy in between the parties through decree but not by order. In the present case it appears that the learned Advocate filed an application under Order 7 Rule 11 of the Code and impleading the said provision of law and resorted to reject the plaint but we find no plaint in the present case rather, it is an application which has been registered as Miscellaneous case (Pre-emption). So, it is obvious that an application under 96 of the State Acquisition and Tenancy Act does not come in the category of a suit. It is just an application for the purpose of pre-emption as prescribed by the special law which cannot, therefore, be equated with a suit because none of the requirements of a suit such as regular plaint, Court fees, written statement and decree etc is attracted to such an application. On the aforementioned discussions it is crystal clear that the application for Miscellaneous case cannot be rejected under Order 7 Rule 11 of the Code of Civil Procedure.      . . . (36 and 37)

Code of Civil Procedure (V of 1908)

Section 151

Order VII, Rule 11

We are of the view that the application under Order 7 Rule 11 of the Code cannot be invoked as discussed in the body of the judgment. However, we are inclined to exercise the Court’s inherent power under section 151 of the Code of Civil Procedure. Because in the impugned order it has been admitted that the application was filed for less deposit and further prayed for in the prayer Ka of the case for partial pre-emption. We are of the considered view that it is a fit case to invoke the jurisdiction of section 151 and exercise the inherent power of the Court to   resist abuse of process of the Court for ends of justice.     . . . (43)

Mojibar Rahman Mondal (Md) Vs. Khoteza Khatoon and others, 2 BLC 1997 (AD) 170; Arifan Nessa Vs. Haroon-or–Rashed and others, 2 BLC (HCD) 76; Hatem Ali Mollah & others Vs. Hayet Khan & others, 1986 BCR (AD) 237; Abdul Jalil and others Vs. Islamic Bank Bangladesh Limited and others, 53 DLR (AD) (2001) 12 ref.

Mr. Purmindu Bikash Das, with

Mr. Dipayan Shah, Advocates

. . . For the petitioners

None appears

. . . For the Opposite parties

JUDGMENT

Md. Nuruzzaman, J. On an application under section 115(1) of the Code of Civil Procedure the instant Rule was issued calling upon the Opposite Party No. 1 to show cause as to why the impugned Judgment and Order dated 11.02.2016 passed by the learned Joint District Judge, Satkania, Chittagong in Pre-emption Miscellaneous Case No. 04 of 2013 rejecting an application filed under Order 7 Rue 11 of the Code of Civil Procedure for rejection of the application of pre-emption case should not be set aside and/or such other or further order or orders as to this Court may seem fit and proper.

2.            The material facts, relevant for disposal of the instant Rule, in short, are that the Opposite Party No. 1 as pre-emptor filed a case being Miscellaneous Case No. 04 of 2013 in the Court of Joint District Judge, Satkania, Chittagong praying for pre-emption under section 96 of the State Acquisition and Tenancy Act in respect of the land described in the schedule to the application for pre-emption.

3.            One Habibur Rahman, the predecessor of the pre-emptor was the co-sharer of the Khatina in question i.e. B.S. Khatian No. 1161. Habibur Rahman died leaving behind one son, the pre-emptor had 4 daughter, the opposite party Nos. 44 to 47. Another co-sharer Abdul Salam died leaving behind one son, the opposite party No. 15 and 5 daughters, the opposite party Nos. 10 to 14 the vendors. One co-sharer Siddique Ahmed died leaving behind the opposite party Nos. 16 and 17. The opposite party Nos. 18 to 20 are the co-sharer of the Khatian. Obaidul Haque, Syed Ahamed, Nawsha Miah, the co-sharer of the Khatian died leaving behind the opposite party Nos. 20 to 24, 26 to 29, 30 to 32 respectively. Another co-sharer Amir Hamja died leaving behind two sons Abul Hasem and Abul Kalam who sold their share to the opposite party No. 33. Other co-sharers of the Khatian Sufia Khatun, Ajahar Miah, Abdul Alem died leaving behind the opposite party Nos. 34 to 36, 38 and 39 to 43 respectively. Another co-sharer Parija Khatun is the opposite party No. 37. The pre-emptor is the co-sharer of the suit jama. The pre-emptee opposite party Nos. 1 to 4 and 6 are the stranger, not the co-sharer. The pre-emptee opposite party No. 5 was the co-sharer. The pre-emptee No. 5 out of misunderstanding with pre-emptor has purchased the case land by the pre-emptees from the vendor-opposite party Nos. 7 to 14; no notice has been served upon the pre-emptor. The vendor sold the case property very secretly to the pre-emptee. On 30.12.2012 the pre-emptees came to the land under pre-emption  for measuring the said land. The pre-emptees at that time disclosed to the pre-emptor that they purchased the suit land from the opposite party Nos. 7 to 14; thereafter through searching on 02.01.2013 the pre-emptor obtained the certified copy of the deed in question and definitely came to know in respect of the sale in question. The suit land is very much necessary to the pre-emptor hence, the pre-emptor has been compelled to file the instant pre-emption Miscellaneous Case.

4.            The pre-emptees entered into appearance and contested the case by filing written objection denying all the materials allegation made in the application for pre-emption. 

5.            During the pendency of the case the pre-emptees filed an application under order 7 Rule 11 of the Code of Civil Procedure (Hereinafter referred as Code) for rejection of the application for pre-emption on two grounds, one the pre-emptor at the time of filing of the case did not deposit the requisite money as required by law and another is the pre-emptor prayed for partial pre-emption which is barred by the principles of pre-emption.

6.            The pre-emptor filed written objection against the application for rejection of the application for pre-emption.

7.            The learned Joint District Judge, Satkania, Chittagong upon hearing both the learned Advocates of the respective parties considering the pleadings and relevant law by his Judgment and Order dated 11.02.2016 rejected the application for rejection of  the pre-emption application.

8.            The pre-emptees having aggrieved with the order dated 11.02.2016 passed by the learned Joint District Judge, Satkania, Chittagong in Pre-emption Miscellaneous Case No. 04 of 2013 passed by the Joint District Judge, Satkania, Chittagong preferred the instant revisional application and obtained the instant Rule with an order of stay.

9.            Mr. Purnindu Bikash Das, the learned Advocate appearing for the petitioner took us through the sub-section 3 of section 96 of the State Acquisition and Tenancy Act, 1950 (Hereinafter referred as the Act) and pointed that the pre-emptor did not deposit money require as per sub-section 3(a), (b) and (c) of the Act however, according to their calculation deposited TK. 233.33/- less than total money.

10.        He has further pointed that point of less deposit was not detected at the instance of the pre-emptor however, this point has been agitated by the pre-emptees in their application under order 7 Rule 11 of the Code.

11.        2nd Point raised by Mr. Purnindu Bikash Das according to the pre-emptor he prays for partial pre-emption. Therefore, Mr. Purnindu Bikash Das took us through the prayer Ka of the application of pre-emption case which are runs as follows:-

afn£m

         ¢Sm¡-QVÊN¡j, b¡e¡/Ef­Sm¡-p¡aL¡¢eu¡, ®j±S¡-Se¡h ®LJ¢Qu¡, ®S,Hm ew-39 Bl,Hp M¢au¡e ew-273 ¢h,Hp M¢au¡e ew-1161 c¡N ew Bl, Hp 3329 ¢h,Hp c¡N ew-5232, c¡N B¾cl  ª1/13 (HL Nä¡ HL L¡¢¿¹ ®al) ¢am e¡m S¢jl j­dÉ 5ew M¢lŸ¡l ¢Su¡Em q­Ll ¢qpÉ¡ h¡c ¢c­u h¡L£ S¢j  ª1 Nä¡ 13 ¢amz HL Nä¡ ®am ¢am b¡e¡- p¡aL¡¢eu¡ p¡h-®l¢S¢øÌ A¢g­p ®l¢S¢øÌL«a ¢hNa 24/12/2012 Cw a¡¢l­Ml ®l¢S¢øÌL«a 5170 ew Lhm¡l S¢j ¢h­l¡d£uz

S¢jl ®Q±q¢Ÿ ¢hhlZx-

Eš­l-¢R¢ŸL Bq¡jc      c¢r­Z-e¤l¦ ®jð¡lz

f§­hÑ-¢Su¡Em qL      f¢ÕQ­j-Bhc¤m qL Nw z

HC ®Q±q¢Ÿl j­dÉ 1-13(HL Nä¡ ®al ¢am) S¢j j¡œz 

12.        He also referring the schedule of the application pointed that the land which has been transferred through the deed No. 5170 dated 24.12.2012 belong to more then one parties however, the pre-emptor in the schedule has mentioned that except share of purchaser No. 5 Ziaul Haque rest land 1 Nä¡ 13 ¢am is under the pre-emption. However, in the schedule of the application the pre-emptor did not specified the land of pre-emptee No. 5 and rest of the land which sought pre-emption by the pre-emptor. Therefore, in such unspecified and undivided land partial pre-emption cannot be allowed.

13.        The opposite party No. 1 entered to the revisional application by filing power through one Abdul Momen Chowdhury on 02.01.2017 however, he never appeared before us although this item has been appearing in the cause list with the name of the learned Advocate for the opposite party No. 1 for few weeks.

14.        The pre-emptee called in question the legality and propriety of the impugned order dated 11.02.2016.

15.        Therefore, we are of the view that we must address the first question raised by the learned Advocate for the pre-emptee-petitioner. In view of the legal question as raised by the learned Advocate we must look into the provision of sub-sections 1, 2 and 3 of section 96 of the State Acquisition and Tenancy Act which runs as follows:-

“96. Right of Pre-emption – (1) If a portion or share of a holding of a raiyat is sold to a person who is not a co-sharer tenant in the holding, one or more co-sharer tenants of the holding may, within two months of the service of the notice given under section 98, or, if no notice has been served under section 98, within two months of the date of the knowledge of the sale, apply to the Court for the said portion or share to be sold to himself or themselves:

Provided that no application under this section shall lie unless the applicant is –

(a)    a co-sharer tenant in the holding by inheritance; and

(b)   a person to whom sale of the holding or the portion or share thereof, as the case may be, can be made under section 90:

         Provided further that no application under this section shall lie after expiry of three years from the date of registration of the sale deed.

(2)   In an application under sub-section (1), all other co-sharer tenants by inheritance of the holding and the purchaser shall be made parties.

(3)   An application under sub-section (1) shall be dismissed unless the applicant or applicants, at the time of making it, deposit in the Court –

(a)               the amount of the consideration money of the sold holding or portion or share of the holding as stated in the notice under section 89 or in the deed of sale, as the case may be;

(b)               compensation at the rate of twenty five per centum of the amount referred to in clause (a); and

(c)                an amount calculated at the rate of eight per centum simple annual interest upon the amount referred to in clause (a) for the period from the date of the execution of the deed of sale to the date of filing of the application for pre-emption.

16.        On perusal of the above provisions of law it is apparent that the pre-emptor must deposit the amount as prescribed in clause (a), (b), and (c) of sub-section 3 of section 96 of the Act at the time of filing the pre-emption application. However, on perusal of the application for pre-emption and impugned order it is patently visible that the pre-emptor and the learned Judge of the Court below clearly admitted amount deposited less than the require amount. So, the submission advanced by the learned Advocate regarding the less deposit is sustainable which by now not a disputed question. However, the learned Judge of the trial Court has further opined that the pre-emptor filed a petition to deposit the due amount as calculated by the pre-emptee. The Court has passed an order to deposit the said less amount. The learned Judge of the Court below further opined that there is no bar to deposit the rest amount during the pendency of the case. So we have to now answer whether the opinion of the learned Joint District Judge is correct and acceptable.

17.        Mr. P.K. Das, the learned Advocate for the petitioner has categorically pointed that the period of time for filing of the pre-emption as stipulated in the provision of sub-section 1 of section 96 of the Act is 2 (two) months from the date of registration or from the date of knowledge. The pre-emptor has filed the application under section 96 on 29.01.2013 however, the question of depositing the rest amount has arisen while the pre-emptee filed application on 24.04.2015 and the learned Judge by his order dated 11.02.2016 allowed the pre-emptor to deposit the rest amount from the date of calculation and order.

18.        The requirement of the law is that the deposit must be given at the time of filing of the application under section 96 of the Act. According to provision of the sub-section 4 of section 96 of the Act the deposit of requires money is a condition precedent. So, we are of the view that the sub-section 4 of section 96 of the Act be reproduced for ready reference which runs as follows:-

On receipt of such application accompanied by such deposits, the Court shall give notice to the purchaser and to the other persons made parties thereto under sub-section (2) to appear within such period as it may fix and shall require the purchaser to state what other sums he has paid in respect of rent since the date of sale and what expenses he has incurred in annulling encumbrances on, or for making any improvement in respect of the holding, portion or share sold.

19.        On perusal of the provision of sub-section 4 of section 96 of the Act it’s become crystal clear that the Court cannot register the application as pre-emption case without taking deposit of the requires amount as described in clause (a) (b) (c) of sub-section 3 of the section 96. So, in view of such condition precedent as provided in the provision of law the learned Joint District Judge directed the pre-emptor to deposit the rest due amount on 11.02.2016 which should not but must opined that such direction is not within the purview of the provisions of sub-sections 3 and 4 of section 96 of the Act. So, we are of the considered view that the opinion of the learned Joint District Judge regarding the deposit of the rest amount by the pre-emptor is not only illegal but also flagrant violation of the provisions of  sub-sections 3 and 4 of section 96 of the Act.

20.        We find support of our view to the case of Mojibar Rahman Mondal (Md) Vs. Khoteza Khatoon and others reported in 2 BLC 1997 (AD) 170.

21.        It has been held in Mojibar Rahman case that the application for deposit the rest of amount was allowed by the Court below and on revision the High Court Division also upheld that order however, the Appellate Division found that legal proposition of section 96 of the Act does not allow to deposit the rest of the amount beyond the period of limitation. Therefore, we cannot but to opine that the direction for deposition of the rest of amount beyond the statutory period is clear violation of the provision of law of sub-section 3 of section 96 of the Act. 

22.        In the impugned order the learned Joint District Judge further opined that there is no impediment to allow the partial pre-emption.

23.        He has also opined that there is no such law which impede the pre-emptor to pray for the partial pre-emption. We have to give answer whether the opinion of the learned Joint District Judge is sustainable in accordance with law or not.

24.        It has been held in the case of Arifan Nessa VS Haroon-or –Rashed and others reported 2 B.L.C (HCD) 76 that

State Acquisition and Tenancy Act of 1951, Section 96-

Partial pre-emption cannot be allowed-Although all the pre-emptees were brought on record except one who was impleaded in the pre-emption case after the statutory period of limitation, a valuable right has already accrued in favour of the pre-emptees for which the case must fail as partial pre-emption is not allowed under section 96 of the Act.”

25.        It has been held to the case of Hatem Ali Mollah  @ others –VS- Hayet Khan and others reported 1986 B.C.R (AD) 237:

State Acquisition and Tenancy Act, 1950, Section 96- 

Partial pre-emption is not permissible.”

Deposite of entire consideration money stated in the kabala was made but pre emption of only. 54 acres of land out of 1.14 acres was sought- When the prayer for pre-emption was for a part of the entire land sold, the prayer cannot be read in respect of the whole when the entire consideration money stated in the kabala was deposited by the appellants. The Court is not required to make deduction otherwise in respect of the prayer.

26.        Therefore, in view of the above authorities we are of the opinion that learned Joint District Judge in an imperceptible manner totally misconceived regarding the settle principle enunciated by the apex Court in respect of partial pre-emption which cannot be sustained in law. So, we are unable to accept the opinion expressed by the learned Joint District Judge as well it is deprecated.

27.        The pre-emptees filed an application under Order 7 Rule 11 of the Code of Civil Procedure to reject the plaint. Now, legal question is whether the application of pre-emption case is plaint or not ? So, we are of the view that the provisions of Rules 1 to 9 and 11 Order 7 of the Code be reproduced herein below which runs as follows:- 

1.      The plaint shall contain the following particulars:-

(a)   the name of the Court in which the suit is brought;

(b)   the name, description and place of residence of the plaintiff;

(c)    the name, description and place of residence of the defendant, so far as they can be ascertained;

(d)   where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;

(e)    the facts constituting the cause of action and when it arose;

(f)     the facts showing that the Court has jurisdiction;

(g)   the relief which the plaintiff claims;

(h)   where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and

(i)     a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees, so far as the case admits.

2.      Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed:

But where the plaintiff sues for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, the plaint shall state approximately the amount sued for.

3.      Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and , in case such property can be  identified by boundaries or numbers in a record of settlement of survey, the plaint shall specify such boundaries or numbers.

4.      Where the plaintiff sues in a representative character the plaint shall show not only that he has an actual existing interest in the subject-matter, but that he has taken the steps (if any) necessary to enable him to institute a suit concerning it.

5.      The plaint shall show that the defendant is or claims to be interested in the subject-matter, and that he is liable to be called upon to answer the plaintiff’s  demand.

6.      Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed.

7.      Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which my always be given as the Court may think just to the same extent as it it had been asked for. A the same rule shall apply to any relief claimed by the defendant in his written statement.

8.      Where the plaintiff seeks relief in respect of several distinct grounds, they shall be stated as far as may be separately and distinctly.

9.      (1) The plaintiff shall endorse on the plaint, or annex thereto, a list of the documents (if any) which he has produced along with it; and, if the plaint is admitted, shall present as many copies on plain paper of the plaint as there are defendants, unless the Court by reason of the length or the plaint or the number of the defendants, or for any other sufficient reason permits him to present a like number of concise statements  of the nature of the claim made, or of the relief claimed in the suit, in which case he shall present such statements.

(2)         Where the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, such statements shall show in what capacity the plaintiff or defendant sues or is sued.

(3)         The plaintiff may, by leave of the Court, amend such statements so as to make them correspond with the plaint.

(4)         The chief ministerial officer of the Court shall sign such list and copies or statements if, on examination, he finds them to be correct.

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;

(d)   Where the suit appears from the statement in the plaint to be barred by any law. 1[:]

1[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not exceed twenty-one days].

2[(e) Where any of the provisions of rule 9 (1A) is not complied with and the plaintiff on being required by the Court to comply therewith within a time to be fixed by the Court, fails to do so.]

28.        On perusal of the provisions of Order 7 Rule 11 of the Code it is clearly divulged that the provision can only invoke on an application only to reject the plaint. The application filed in the Miscellaneous Case which is not a plaint, now the question is in the instant Miscellaneous Case the pre-emptee as applicant can invoke the Rule 11 of Order 7 of the Code of Civil Procedure.

29.        To determine the question whether Miscellaneous case under section 96 of the Act can be rejected through such an application under Rule 11 of Order VII of the Code.

30.        To draw the differences between the plaint and the application of pre-emption case we must refer to the provisions Rule 1 to 9 of order VII of the Code because the legislator codified the requirements of the plaint for different class of suit as quoted in Rules 1-9 in the Order 7 of the Code but we do not find any such provision of law for the application under section 96 of the Act.

31.        Besides the above legal proposition another prescribed form has been laid down in Sub-Rule 44 of Rule 774 of the Civil Rule’s and Order for filing application of pre-emption case. In the referred sub rule it has been shown that any application under section 96 of the Act, 1950 would be registered as Miscellaneous Case. Therefore, it is crystal clear that such an application cannot be treated as suit and description given in the application cannot be treated as pleading of plaint.

32.        Moreover, in pre-emption case never drawn up a decree after its disposal but, if the suit is dispose of in either way decree must be drawn up to that effect. So, it is crystal clear that the final order passed in a pre-emption case it is an order not decree. 

33.        Now to determine the difference between the decree and order we must looked into the provision of section 2 of the Code wherein the definition of order and decree has been given. We are of the view that it would be profitable to reproduce the definition of the decree and order which runs as follows:-

    (2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.  It shall be deemed to include the rejection of a plaint and the determination of any question within 3* * * *

(14) “order”means the formal expression of any decision of a Civil Court which is not a decree:

34.        From the above definition we can conclude the difference between the decree and order, since in the pre-emption case no decree would be drawn up after disposal but if the application for Miscellaneous Case is rejected under order 7 Rule 11 in that situation decree must be drawn up because in the definition of the decree it has been clearly opined that Court itself be deemed to include the rejection of a plaint as decree. It is, therefore, crystal clear that the application under order 7 Rule 11 of the Code cannot invoke in the case in hand, because an application under section 96 of the Act is dispose of finally by an order, obviously not by a decree.

35.        However, Mr. Purnindu Bikash Das advanced his submission referring section 141 of the Code wherein it has been enacted by the legislature that the provision of section 141 would be applicable in the proceedings of the Miscellaneous case in the Court of civil jurisdiction therefore, it would be noteworthy to reproduce the provision of section 141 herein below which runs as follows:-

141. The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

36.        On perusal of the provision of section 141 it is our considered view that this section would be applicable only for procedural matter so far it can be made applicable. Therefore, we are of the opinion that section 141 of the Code cannot be invoked at the time of passing the substantive justice. From the above discussion in respect of order and decree which determine substantive justice or any of the party in a proceeding resolving the controversy in between the parties through decree but not by order. In a present case it appears that the learned Advocate filed an application under order 7 Rule 11 of the Code and impleading the said provision of law and resorted to reject the plaint but we find no plaint in the present case rather, it is an application which has been registered as Miscellaneous case (Pre-emption).

37.        So, it is obvious that an application under 96 of the State Acquisition and Tenancy Act does not come in the category of a suit. It just an application for the purpose of pre-emption as prescribed by the special law which cannot, therefore, be equated with a suit because none of the requirements of a suit such as regular plaint, Court fees, written statement and decree etc is attracted to such an application. On the aforementioned discussions it is crystal clear that the application for Miscellaneous case cannot be rejected under order 7 Rule 11 of the Code of Civil Procedure.

38.        Mr. Purnindu Bikash Das further advanced his submission referring section 151 of the Code of Civil Procedure and submits that miss-quoting and non-quoting of provision of law by the learned Advocate on an application cannot be the sole basis for passing the appropriate order, if from the contentions of the application it appear that any question of law has been raised in respect of any proceedings for ends of justice and to protect abuse of process of law the Court. The Court himself can invoke the inherent jurisdiction of  under section 151 of the Code for exercising the jurisdiction for ends of justice.

39.        He very candidly submitted that the learned lawyer of the trial Court filed application under order 7 Rule 11 instead of 151 of the Code of Civil Procedure only for this reason a illegal proceedings cannot be proceeded since it has clearly been mentioned in the application under order 7 Rule 11 that the proceeding is illegal and if such illegal proceeding going on that would be tantamount abuse of process of the Court as well as both the parties in the litigation could not get any result after the conclusion of the trial because the future result of the instant proceeding is as clear as day light therefore, such unfounded proceedings must be buried in its inception.

40.        In view of the submission of the learned Advocate for the petitioner we find support from the principles enunciated in the case of Abdul Jalil and others Vs. Islamic Bank Bangladesh Limited and others reported in 53 DLR (AD) (2001)12 wherein the apex Court has held that –

               It is well settled that where a plaint cannot be rejected under Order 7 Rule 11 of the Code of Civil Procedure the court may invoke its inherent jurisdiction and reject the plaint taking recourse to section 151 of the Code of Civil Procedure.”

         It has been further held that – “As the ultimate result of the suit is as clear as day light such a suit must be burried at its inception so that no further time is consumed in a fruitless litigation.”

41.        In the case in hand regarding the legal provision as to the maintainability we have already discussed elsewhere in the judgment. Our such view is supportive to the case of Mojibar Rahman Mondal (Md) Vs. Khoteza Khatoon and others reported in 2 BLC(AD) (1997)170 wherein the apex Court himself found that the principle of excepting the rest amount of the deposit to file an application under section 96 of the Act, 1950 beyond the statutory period is not maintainable.

42.        We have also find support of our view from the discussion regarding the partial pre-emption to the case of Hatem Ali Mollah & others Vs. Hayet Khan & others reported in 1986 BCR(AD)237.



Civil Revision No. 1584 of 2016