A.B.M. Fazle Rabbi (Rajan) and others Vs. Md. Abdus Samad and others, 2 LNJ (2013) 367

Case No: Civil Revision No. 3084 of 2010

Judge: A. K. M. Shahidul Huq,

Court: High Court Division,,

Advocate: Mr. Yusuf Hossain Humayun,,

Citation: 2 LNJ (2013) 367

Case Year: 2013

Appellant: A.B.M. Fazle Rabbi (Rajan) and others

Respondent: Md. Abdus Samad and others

Subject: Remand of a Case,

Delivery Date: 2013-05-07

HIGH COURT DIVISION
(CIVIL)
 
Sharif Uddin Chaklader, J.
And
A.K.M. Shahidul Huq, J.

Judgment
07.05.2013
 
A.B.M. Fazle Rabbi (Rajan) and others
. . . Petitioners
Versus
Md. Abdus Samad  and others
….. Opposite parties
 
 
Code of Civil Procedure (V of 1908)
Order XLI, rule 23
When the appellate Court sends the case on remand to the trial Court for taking further evidence regarding improvement the trial Court cannot go beyond the limits set down by the remand order and cannot open the finding of the appellate Court. . . . (14)

Mr. Yusuf Hossain Humayun with
Mr. Matiur Rahman, Advocates
. . . For the Petitioners

Mr. Probir Neogi, Advocates
. . . For the opposite parties.

Civil Revision No. 3084 of 2010
 
JUDGMENT
A.K.M. Shahidul Huq, J:
 
The order   dated 19.05.2010 passed by learned Joint District Judge,  1st  Court, Gazipur in Miscellaneous Appeal No. 66 of 2008  arising out of the order dated 18.9.2008 passed by the learned Assistant Judge, 4th Court, Gazipur in Miscellaneous Case No. 17 of 1999 allowing the appeal has been called in question by invoking the revisional jurisdiction on laying an application under section 115 (1) of the Code of Civil Procedure in which a single Judge of this Court on perusal of the impugned judgment issued rule calling upon the opposite party to show cause as to why the judgment and order dated 19.5.2010  complained of in the petition moved in court today-should not be set aside should not be set aside or any other order/ or orders as to this court deem fit and proper.
 
The short facts for disposal of the rule is that the opposite party No.1-appellant as petitioner has filed an application under section 96 of the State Acquisition and Tenancy Act being Miscellaneous Case No. 17 of 1999 for pre-emption alleging inter-alia that he is the co-sharer by purchase to the case property (Jote) wherein the pre-emptee opposite party No.  1 is a stranger thereto that opposite party No. 2 has transferred the case land to opposite party No. 1 by a registered sale deed dated 23.9.1995 at a consideration of Taka 70,000/- only but no notice of sale has been served upon him a requirement under section 89 of the SAT Act. It has further alleged that the opposite party No. 1 had been in possession prior to the disputed sale and as such he know nothing about the disputed sale and when has learnt about the transfer only on 1.4.1997. He thereafter has filed the Miscellaneous Case for pre-emption.
 
Pre-emptee opposite party No. 1 has contested the case by filing written objection denying all the material allegations of the petition for pre-emption and contended inter alia that the petitioner is not a co-sharer to the case land and as such he has no locus standi to pray for pre-emption of the case land and that the application is barred by limitation defect of parties and the pre-emptee opposite party No. 1 has spent Taka 86,00,000/= towards improvement of the land and set up a Diary farm and digged a huge pond and as such the case is liable to be dismissed.
 
During trial the petitioner-opposite party has examined 3 witnesses while the contesting opposite party No. 1 examined 4 witnesses in support of their respective case.
 
After hearing both the parties the learned trial Court allowed the preemption by judgment dated 29.01.2001.
 
Against the aforesaid judgment and order allowing pre-emption Miscellaneous Appeal No. 4 of 2001 has been filed which has been heard by the Subordinate Judge who by his judgment and order dated 25.4.2004 has been pleased to send back the case on remand with direction to assess the improvement cost only and the learned trial Court on receipt of the case and upon hearing the parties by his order dated 18.09.2008 has been pleased to reject  the prayer for pre-emption on the point of maintainability as the application seeking pre-emption has been filed before amendment to section 96 in 1996.
 
Against the said judgment and order dated 18.9.2008 the opposite party has filed Miscellaneous Appeal no. 66 of 2008 before the District judge, Gazipur on the ground that when the Appellate Court remand the case for inquiry or taking evidence or special direction the trial Court have to act within the limits set down by the remand order and cannot reopen the finding of the appellate Court. It has to comply with the order of remand exactly on remand it is not open to the trial Court to do anything but to carry out the terms of the remand order even if it considers that not to be in accordance with law.
 
The learned Joint District Judge, 1st Curt Gazipur upon reading the case of the contesting parties on considering the oral and documentary evidence on record allowed the Miscellaneous Appeal No. 66 of 2008 by his judgment and Order dated 19.05.2010.
 
Being aggrieved and dissatisfied with the impugned judgment and order dated 19.05.2010 passed by the learned Joint District Judge, 1st Court, Gazipur in Miscellaneous Appeal No. 66 of 2008 arising out of order dated 18.09.2008 passed by the learned Assistant Judge, 4th Court, Gazipur in Miscellaneous Case No. 17 the petitioner moved this application  under section 115(1) of the Code of Civil Procedure and obtained the present Rule.
 
At the trial the pre-emptor examined 3 witnesses on the other hand contesting opposite party Nol. 1 examined 4 witnesses in support of their respective cases.
 
Mr. Yusuf Hossain Humayun the learned Advocate appearing for the petitioner submits that the appellate Court without appreciating the spirit of the judgment and order passed by the trial Court and has arrived at an erroneous finding. The learned Advocate appearing for the petitioner further submits that the learned appellate Court has set aside the judgment and order of the trial Court as it has traveled beyond the direction of the Appellate Court while sending on remand but in so doing it has not considered the fact that if a case is found to be suffering from basic requirement such as limitation, defect of parties and maintainability there can not be legal bar to take into consideration of such issues. The learned Advocate appearing for the petitioner also submits that the learned appellate Court while found that the application for pre-emption suffers from gross defect of parties and maintainability on the face of papers produced and that there is specific and undisputed documentary and oral evidence that the petitioner-opposite party has had knowledge about the transfer the case land and development of the same by the opposite party-petitioner and that he presented the application after amendment to section 96 of the State Acquisition and Tenancy Act 1950  and as such the application is not legally maintainable and is hopelessly barred by limitation it ought to have upheld the judgment and order of the trial Court. The learned Advocate appearing for the petitioner lastly submits that the learned Appellate Court while setting aside the judgment and order of the trial Court has failed to consider the admitted fact that the petitioner has a Diary Farm over the land and excavated a huge tank in the case land.
 
While on the other hand Mr. Probir Neogi the learned Advocate appearing for the Opposite party No. 1 submits that the pre-emptor is a co-sharer by purchase to the case jote and the pre-emptee opposite party No. 1 is a stranger. The opposite party No. 2 transferred the case land to the opposite party No. 1 by a registered kabala deed dated 23.09.1995 at a consideration of Tk. 70.000/- but no notice of the disputed sale was served upon him as required under section 89 of the SAT Act and the opposite party No. 1 had been in possession prior to the disputed sale. The learned Advocate appearing for the opposite party further submits that the applicant is not co-sharer to the case jote and as such he has no locus-standi to file the pre-emption case and the case is barred by limitation and as such the application for pre-emption is liable to be rejected. The learned Advocate for the opposite party lastly submits that the opposite party No. 1 spent Tk. 86,00,000/- for improvement of the land by making a Diary Farm digging  pond and as such the rule is liable to be discharged
 
Heard the learned Advocates of both sides perused the revisional application, judgment of the Courts below examined the witnesses of P.Ws. and D.Ws. and other connected papers. It appears that the learned Court of appeal below has justified the finding of the learned Assistant Judge. The Appellate Court however in the operative portion of his judgment rightly observed that "নিন্ম আদালত মনে করেন যে স্বামী দীঘি খননের আংশিক কার্য সম্পন্ন হইয়াছে যা প্রকল্পের কাজ পুরণ করিয়াছেন। উহা প্রদানের জন্য এডভোকেট কমিশনের মাধ্যমে পরিদর্শন বা পরিমাপ করান নাই বা কত টাকা খরচ করিয়েছেন এমন কোন উন্নয়ন খরচ ব্যয়ের অংশের টাকা উল্লেখ করেন নাই কিন্তু আপীলকারী ১নং তরফজ্বব£ লিখিত আপত্তি দৃষ্টে দেখা যায় যে তাহারা প্রকল্পের ৮৬ লক্ষ টাকা ব্যয় বরাদ্দ করিয়াছেন এবং ব্যাপক বিনিয়োগ করিয়াছেন। ফলে প্রকৃত পক্ষেই আপীলকারী ১নং তরফছানী সালিশী সম গন্ডিতে তাহার প্রজেক্ট ব্যয় বায়নের কি কি স্থাপনা নির্মান করিয়াছে তাহাতে কি কি পরিমান ব্যয় হইয়াছে তাহা বিশদ ভাবে সাক্ষ্য প্রমান দ্বারা ও ষস্বখবস ঈজ্জঢ়লভখহব  দ্বারা নির্ণয়ের দাবী রাখে। ফলে উক্ত বিষয়টি নির্ধারণের আলোকে অর্থাৎ শুধুমাত্র আপীলকারী ১নং তরফদাবীর বিনিয়োগ প্রমানের লক্ষ্যে মূল মোকদ্দমাটি রিমান্ডে প্রেরন করা যাইতে পারে বলিয়া প্রতিয়মান হয়."
 
Considering this findings the learned lower Court ought to have considered the law relating to remand order under order 41 rule 23 of the Code of Civil Procedure minutely in depth. Where the procedure laid down to be followed after a case is remanded depend upon the direction given in the remand order. When the appellate court remand the case for further evidence regarding improvement the trial court to have act within the limits set down by the remand order and can not open the finding of the appellate court. In this connection it is very much pertinent to explain the word remand which has been well explained in Order 41 Rule 23 which runs as follows: “ Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remand, and shall send a copy of its judgment and order to the Court from whose decree the appeals preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) record during the original trial shall, subject to all just exceptions, be evidence during the trial after remand”.
 
In the above facts and circumstances and the observation as made in the body of the judgment of the lower appellate court under Order 41 Rule 23 of the Code of Civil Procedure we are of the view that the impugned judgment of the final Court of facts does not suffer from any illegality infirmity and perversity and no error has committed  by the final court of fact and as such we are not inclined to interfere  the judgment and order of the lower appellate Court and hence we find that lower appellate Court did not commit any wrong in affirming  the judgment and order of the trial Court.
 
Rules 4 and 5 of Section 89 of the State Acquisition and  Tenancy Act runs as follows :

        “(4) If  the transfer of a portion or share of such  a holding be one to which the provisions of section 96 apply, there shall be filed notices  giving particulars of the transfer in the prescribed form together with process  fees prescribed for the service thereof on all the co-sharer tenants of the said holding who are not parties to the transfer and for affixing a copy thereof in the office of the Registering Officer or the Court house or the Office of the Revenue Authority, as the case may be.
        (5) The Court, Revenue Authority or Registering, as the case may be, shall transmit the notice referred to in clause (a) of sub-section (1) to the Revenue-officer and shall serve the notice on the co-sharer tenants  referred to in sub-section (4) by registered post and shall cause a copy of the notice to be affixed in the Court house or in the Office of the Revenue Authority or of the Registering Officer, as the case may be”.
 
The  aforesaid provision of law  as laid down  in Sub-section 4 and 5 of Section 89 of the State Acquisition and Tenancy Act are fully applicable  in the facts and circumstances of the present case. So in view of the aforesaid provision of law we have no hesitation  to accept the submission as advanced  by the learned Advocate appearing for the opposite party accordingly the petitioner has failed to show any error, illegality , infirmity and perversity in the impugned judgment and order of the lower Appellate Court and consequently  the impugned judgment and order of the lower Appellate Court does not deserve any interference by us under the revisional jurisdiction of this Hon’ble Court as laid down under Section 115(1) of the Code of Civil Procedure.
 
In that view of the matter the impugned judgment and order of the learned Joint District Judge, 1st Court, Gazipur does not suffer from any illegality infirmity and perversity and as such the same does not call for any interference under the revisional jurisdiction of this Hon’ble Court. Accordingly the revisional application filed under section 115(1) is devoid of any substance accordingly the  Rule  fails.      
 
In the result the rule is discharged without any order as to costs. The impugned Judgment and order dated 19.05.2010 passed by the learned Joint District  Judge, 1st  Court, Gazipur in Miscellaneous Appeal No. 66 of 2008 is hereby affirmed and the judgment and order dated 18.09.2008  passed  by the learned Assistant Judge 4th Court Gazipur in Miscellaneous Case No. 17 of 1999  is hereby set aside.
 
The order of stay as granted at the time of issuance of the rule is hereby recalled and vacated.
      
Send down the lower Court’s records along with a copy of this judgment to the concern court immediately for information and necessary action.

Ed.