Ahamadur Rahman Chowdhury Vs. Standard Bank Ltd. & ors., (Syed Md. Ziaul Karim, J.)

Case No: First Appeal No. 175 of 2015

Judge: Syed Md. Ziaul Karim, J And Sheikh Md. Zakir Hossain, J.

Court: High Court Division,

Advocate: Mr. Abdul Halim Kafi, Advocate, with Mr. Khaled Mahmud Saifulla, Advocate, Mrs. Khurshed Jahan, Advocate, Mr. Shahidul Islam, D.A.G. with Mr. Md. Jahangir Alam, A.A.G. Mr. Kalipada Mridha, A.A.G. and Mr. Mehadi Hasan, A.A.G.,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Ahamadur Rahman Chowdhury

Respondent: Standard Bank Ltd. and six others, Bangladesh Bank, represented by its Governor, Main Office, Motijheel Commercial Area, Police Station-Motijheel, Dhaka.

Subject: Bangladesh Labour Code

Delivery Date: 2019-11-26

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Syed Md. Ziaul Karim, J

And

Sheikh Md. Zakir Hossain, J.

 

Judgment on

14.02.2018

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Ahamadur Rahman Chowdhury

. . . Plaintiff-Applicant

-Versus-

Standard Bank Ltd. and six others

. . .Defendant Respondent Nos. 1-7

Bangladesh Bank, represented by its Governor, Main Office, Motijheel Commercial Area, Police Station-Motijheel, Dhaka.

. . . Proforma defendant Respondent No.8.

Bangladesh Labour Code (XLII of 2006)

Sections 2(49) and 2(65)

Going through the appointment letter of the plaintiff and his dismissal order, it appears that the employee (Plaintiff) was terminated with stigma. It is well settled that plaintiff an employee, when terminated with stigma and for removing the stigma suit is maintainable, even the service condition is governed by master and servant rule. From the plain reading of the provisions of Sections 2(49) and 2(65) of the Bangladesh Labour Code, 2006, we find that responsibilities of plaintiff was administrative or management of the duties. So, the relationship between the employer (Bank) and employee (plaintiff) were not governed by Master and servant rule.         . . . (10 and 12)

Code of Civil Procedure (V of 1908)

Section 151

Order VII, Rule 11

The plaint of a suit can be rejected by exercising the Power under section 151 of the Code, when from plain reading of the plaint; it appears that the suit is barred under Order VII Rule 11 of the Code.  . . . (13)

Code of Civil Procedure (V of 1908)

Order VII, Rule 11(d)

Clause (d) of the Rule 11 of Order VII authorize the rejection of a plaint when the suit appears from the statements in the plaint to be barred by any law. This clause applies when it appear from the statements in the plaint that the suit is barred but it has no application where there is no clear or specific admission in the plaint suggesting that the suit is barred. This clause is attracted only when on the admitted facts as appearing from the plaint itself the suit is prima facie barred. As for instance when from the statements made in the plaint it appears that the cause of action arose beyond the period of limitation fixed under the statue and no indication is given that limitation has been saved, the plaint may be rejected. In a proper case, when it appears to be barred by limitation, the plaint may be allowed to be amended without rejection. It is not mandatory for the Court to reject the plaint. It may ask the plaintiff to amend it so as to make suit maintainable. Where the plaintiff does not comply with such an order the Court may reject the plaint. In the instant case, there is nothing on record to show that on the admitted facts as appearing from the plaint itself the suit is prima facie barred. So the rule 11(d) is not at all attracted here and the plaint cannot be rejected on that score. All the facts and submissions of the learned Counsel of both the parties indicate that the plaint of the suit should not be rejected by exercising the Power laid down in section 151 of the Code by taking the recourse of Order VII Rule 11 (d) of the Code.  In view of the above, the Court below without considering the materials on record and aforesaid principles of law, by rejecting the plaint of the suit committed an error of law. Therefore, the impugned judgment and decree of the Court below is liable to be interfered by the High Court Division. The impugned judgment and decree is set aside. The suit will proceed in accordance with law.                                  ...(16, 19, 26, 27 and 29)

Aftabuddin Ahmed, Executive Director, UCEP, Dhaka Vs. Md. Shamsul Alom and others 2 Apex Law Report (ALR) 348; Managing Director, Janata Bank Vs. Hafijuddin Ahmed and others 29 DLR (SC) 39; Bangladesh Commerce Bank Ltd. and another Vs. Md. Nasir- uz- Zaman 19 BLR 71;  Jahir Uddin (Md.) Vs. Rupali Bank Ltd. and others 12 BLC (AD) 114; International Finance Investment and Commerce Bank Liimited Vs. Mr. Abdul Quayum and another 19 BLD (AD) 234; Ratan Chand Dharam Chand Vs. The Secretary of State for India in Council and another 18 CWN 1340; Maqsood Ali Vs. Deputy Commissioner, Bara Banki and another AIR 1928, Oudh, 495; Sreedam Chandra Bhur Vs. Tencori Mukherjee and others A.I.R 1953 Cal. 222; Gunnaji Bhavaji Vs. Makanji Khoosal Chand 34 Bom 250; Prankrishna Vs. Kripannath 21 Cal. WN 209; Sundar Ali being dead his heirs: Mannan and others Vs. Md.Serajul Islam Sarker and others 56 DLR (AD) 210; Abdul Malek Sawdagar Vs. Md. Mahbubey Alam and others 57 DLR (AD) 18; Md. Abul Khair Vs. Pubali Bank Ltd. and another 21 BLD (AD) 32=53 DLR (AD) 62; Afzal Hossain Diptee Vs. Radha Kanta Korati and others 15 BLC 196; Bangladesh Water Development Board Vs. Contractor Manu Barrage 9 BLT 21 and Shafi A. Chowdhury Vs. Pubali Bank Ltd. and others 54 DLR 310 ref.

Mr. Abdul Halim Kafi, Advocate, with

Mr. Khaled Mahmud Saifulla, Advocate,

. . . For the plaintiff-appellant,

Mrs. Khurshed Jahan, Advocate,

. . . For the respondent Nos. 1-7

Mr. Shahidul Islam, D.A.G. with

Mr. Md. Jahangir Alam, A.A.G.

Mr. Kalipada Mridha, A.A.G. and

Mr. Mehadi Hasan, A.A.G.

. . . For the proforma defendant respondent No. 8.

JUDGMENT

Syed Md. Ziaul Karim, J: By this appeal, the plaintiff appellant has challenged the legality and propriety of the judgment and decree dated 25-02-2015 passed by learned Joint District Judge, Fifth Court, Dhaka, rejecting the plaint of Title Suit no. 18 of 2015 under section 151 of the Code of Civil Procedure(briefly as the Code).

2.             Materials facts leading to this appeal are that on 19-01-2015 the appellant as plaintiff  instituted Title Suit no. 18 of 2015 in the fifth Court of Joint District Judge, Dhaka impleading the respondents as defendants for declaration that the order of dismissal dated 30-11-2014 passed by defendant no.2, terminating him from the post of Senior Vice President and Regional Manager is illegal, inoperative and still he is in service and also for realization of outstanding arear salary for Tk.10,25,015/-along with interest. The relieves claimed in suit reads as hereunder:

L)  h¡c£l fË¡bÑ£a j­a, 2ew ¢hh¡c£ LaѪL ü¡r¢la ¢hNa 30-11-2014 Cw a¡¢l­Ml h¡c£­L Q¡L¥l£ qC­a hlM¡­Øal ¢Q¢W h¡¢am, ®h-BCe£, AL¡kÑLl Hhw h¡c£ HM­e¡ Q¡L¤l£­a ü­ha­e  hq¡m B­R j­jÑ HL ¢XH²£  fËc¡e L¢l­a ;

M)          h¡c£ ¢hh¡c£N­Zl ¢eLV ®hae h¡hc h­Lu¡ 10,25,015/-(cn mr Q¢õn q¡S¡l) V¡L¡ fËc¡­el  Hhw j¡jm¡ c¡­u­ll a¡¢lM qC­a 18% h¡¢oÑL q¡­l p¤cpq r¢af§lZ f¡Ju¡l qLc¡l j­jÑ HL ®O¡oZ¡j§mL ¢XH²£ ¢c­a;

N)           e¡¢m­nl pjÉL hÉu h¡c£l Ae¤L¥­m Hhw ¢hh¡c£N­el fË¢aL¥­m ¢XH²£ ¢c­a;

O)           h¡c£ Bq~e J CL¥C¢Vj­a Bl ®k ®k fË¢aL¡l f¡C­a f¡­l ®p j­jÑ h¡c£l Ae¤L¥­m ¢XH²£ ¢c­a z

3.             Later the suit was fixed for hearing over the maintainability matter.

4.             After hearing the learned Judge by the impugned judgment and decree dated 25-02-2015 rejected the plaint of the suit under section 151 of the Code holding that the employer and employee of the Bank based on Doctrine of master and servant Rule, so the legal right of the plaintiff has not been infringed. So the suit is not maintainable.

5.             The learned Advocate appearing for the appellant seeks to impeach the impugned judgment and decree on two fold arguments:

Firstly:  The plaintiff instituted the suit challenging his dismissal order and also for recovery for realization of his outstanding salary. So the civil court has the ample jurisdiction to try such suit;

Secondly: The plaint of the suit clearly disclosed the cause of action and from plain reading of the plaint it is not found that the suit is barred under law. Moreso, the learned Judge of the Court below most erroneously applied the principle of doctrine of master and servant Rule in this suit, thereby committed an error of law resulting in an error in the decision occasioning failure of justice.

6.             In support of his contentions he refers the following decisions:

1.       In the case of Aftabuddin Ahmed, Executive Director, UCEP, Dhaka vs. Md. Shamsul Alom and others 2 Apex Law repot (ALR) 348 held :

      “ Specific Relief Act, 1877

      Section 42- Want of prayer for consequential relief when not fatal for a suit ?

      On plain reading of the prayer portion of the plaint together with the contents of the plaint, it is evident that the prayer of the plaintiff for relief is complete and exhaustive and as such there is no scope to hold that the suit is bad for want of necessary consequential relief.

      Doctrine of Master and Servant rule.

      When the conditions of service of the plaintiff are regulated by the provisions of Chapter 7 of UCEP Service Rules, 2004, there is no scope to hold that the doctrine of Master and Servant has any manner of application in the case.”

2.             In the case of Managing Director, Janata Bank vs. Hafijuddin Ahmed and others 29 DLR(SC) 39 held:

   “Service- Dismissal from service-Employee of a statutory corporation.

   Employee of a statutory corporation cannot be placed in the category of relationship subsisting between master and servant and therefore before his dismissal from service of the corporation he is entitled to a show-cause notice-Such employee does not acquire the status of government of public servant.

   An employee of a statutory corporations does not come within the Master and Servant rule and is entitled to show cause notice before his dismissal, whether there is any statutory justice rule or not, and also because of the cumulative effect of diverse legislature enactments his service has a public character.  The respondent no.1 is therefore, entitled to a legal character and can maintain a suit for declaration under section 42 of the Specific Relief Act.

   The finding of the learned Judge that the employee of a statutory corporation because of various legislative measures has become a government servant or public servant entitled to the benefits of the constitutional safeguards cannot be substained from the reasons set out in Civil Appeal no. 9 of 1975.”

3.    In the case of Bangladesh Commerce Bank Ltd. and another vs. Md. Nasir-uz-Zaman 19 BLC 71 held:

“ Code of Civil Procedure

Order VII, rule 11(d)

Bangladesh Bank Order(P.O. 128 of 1972)

Article 34(5)

An employee, when terminated with stigma and for removing the stigma suit is maintainable even the service condition is governed by master and servant rule.”

4.    In the case of Jahir Uddin (Md.) vs. Rupali Bank Ltd. and others 12 BLC(AD) 114 held:

Specific Relief Act (1 of 1877)

Sections 42, 55 and 56

As it appears the High Court Division made the Rule absolute holding that admittedly on and from 06-04-1984 the defendant bank, being denatinalised, was converted into a private bank incorporated under the Companies Act, 1994 and, as such, the relationship between the plaintiff-petitioner and the defendant bank became that of master and servant from that date and therefore, the petitioner is not entitled to get a decree for declaration without consequential relief; in the instant case there is no prayer for mandatory injunction for consequential relief, even if there is a prayer for mandatory injunction but that that too cannot be granted in view of legal bar under clause (e) of section 56 of the Specific Relief Act which provides that an order of mandatory injunction cannot be granted to prevent the breach of a contract the performance of which could not be specifically enforced; the breach of contract for personal service cannot be restrained by court ordering an employer to retain the employee in the service as it is the prerogative right of the employer to discharge his vlations the suit is not maintainable as the plaintiff challenged the order of  suspension and the final show cause notice but  did not challenge the order of dismissal in which the impugned order of suspension and show cause merged and with the order of dismissal the orders of suspension and final show cause became infructuous and in the instant case this issue, which cuts the case at its root, has not been considered at all by the appellate Court below.”

5.    In the case of International Finance Investment and Commerce Bank Limited vs. Mr. Abdul Quayum and another 19 BLD(AD) 234 held:

“ Code of Criminal Procedure, 1898.

Section 561A

Penal Code, 1860

Section 21

Bank Companies Act, 1991

Section-110.

The accused who was a Manager of the IFIC Bank and the complainant who is an officer of the Bank are public servants as it is a Banking company whose 40%  shares are held by the Government of the People’s Republic of Bangladesh. So both the complainant and the accused are public servants and the complaint has been filed before the Senior Special Judge and Sessions Judge, Dhaka, for taking cognizance under section 409, 477(A) and 462(A) of the Penal Code and under section 5(2) of the Prevention of Corruption Act, 1947 for  misappropriating an amount of Tk.26.18 crores causing huge loss to the Bank. Section 110 of Bank Companies Act, 1991 also provides that a Manager, Officer and other functionaries of the banking company are deemed to be public servants under section 21 of the Penal Code. Thus, by reference to the relevant law it appears that the appellant and the respondents are public servants and the case has been rightly instituted in the Court of Special Judge against the respondent who is also a public servant.”

7.             The learned Advocates appearing for the defendant nos. 1-7 and 8 oppose the appeal and submits that the learned Judge of the Court below after considering the law and facts and by relying the case reported in 12 BLC(AD) 114 rightly held that relationship between the Employer (Bank) and Employee (Plaintiff) are master and servant. So rightly rejected the plaint of the suit which calls for no interference by this Court.

8.             In order to appreciate their submissions we have gone through the records and given our anxious considerations to their submissions.

9.             Now the points for consideration whether the impugned judgment and decree calls for interference by this Court.

10.         On going to the material on records it transpires that the plaintiff instituted the suit for declaration that his dismissal order dated 30-11-2014    issued by the defendant no. 2 is illegal, void, inoperative and still he is in service and also for realization of his outstanding arear salary for Tk. 10,25,015/- with interest. It is pertinent to point out that the plaintiff was the Senior Vice-President and regional Manager of Standard Bank Ltd. and the letter of dismissal was issued by the Managing Director of the said Bank. The learned Judge relied the decision reported in 12 BLC (AD)114 and held that relationship between the employer and employee of that Bank are the master and servant relationship. So the legal right of the plaintiff has not been infringed. We have carefully gone through the above decisions and find that the same is absolutely distinguishable to that of the instant case. In the said case the plaintiff challenged the order of suspension, not the final order, but in the instant case the plaintiff challenged the order of dismissal itself. Moreso, we have gone through the appointment letter of the plaintiff and his dismissal order, wherein we find that the employee (Plaintiff) was terminated with stigma. It is well settled that plaintiff an employee, when terminated with stigma and for removing the stigma suit is maintainable, even the service condition is governed by master and servant rule.

11.         Sections 2(49) and 2(65) of the Bangladesh Labour Code 2006 provides the definition of j¡¢mL (Master) and  nË¢jL  (servant) which read as hereunder:

“2(49) ®L¡e fË¢aù¡e pÇjf­LÑ, j¡¢mL AbÑ Hje ®L¡e hÉ¢J² ¢k¢e fË¢aù¡­e nË¢jL ¢e­u¡N L­le, Hhw ¢ejÀ¢m¢Ma hÉ¢J²NZJ Cq¡l A¿¹iѧJ²  qC­he, kb¡-

L)       X~J² hÉ¢J²l ®L¡e Ešl¡¢dL¡l£, A¢ii¡hL, qØa¡¿¹l j§­m Ešl¡¢dL¡l£ h¡ BCeNa fË¢a¢e¢d ,

M)    EJ² fË¢aù¡­el hÉhØq¡fL h¡ Eq¡l hÉhØq¡fe¡ h¡ ¢eu¿¹­el SeÉ c¡¢uaÄÚfË¡ç ®L¡e hÉ¢J²,

N)     plL¡l LaѪL h¡ plL¡­ll LaѪaÄ¡d£e f¢lQ¡¢ma ­L¡e  fË¢aù¡­el ®r­œ HacX~­Ÿ­nÉ ¢e­u¡¢Sa ®L¡e La«Ñfr, Abh¡ Hl²f ®L¡e LaѪfr e¡ b¡¢L­m, pw¢nÔø jÇœZ¡mu h¡ ¢hi¡­Nl fËd¡e,

O)     ­L¡e Øq¡e£u LaѪfr LaѪL h¡ X~q¡l f­r f¢lQ¡¢ma ®L¡e fË¢aù¡­el ®r­œ, HacE­Ÿ­nÉ ¢ek¤J² ®L¡e LjÑLaÑ¡ Abh¡ Hl²f ®L¡e LjÑLaÑ¡ e¡ b¡¢L­m, Eq¡l fËd¡e ¢ehÑ¡q£ LjÑLa¡,

P)      AeÉ ®L¡e fË¢aù¡­el ®r­œ, Eq¡l j¡¢mL Hhw Eq¡l fË­aÉL f¢lQ¡mL, hÉhØq¡fL, p¢Qh, fË¢a¢e¢d Abh¡ Eq¡l L¡S-L­jÑl hÉhØq¡fe¡ pÇf¢LÑa ®L¡e LjÑLaÑ¡ h¡ hÉ¢J²,

Q)     j¡¢mL hÉa£a AeÉ ®L¡e hÉ¢J²l cM­m B­R Hl²f ®L¡e fË¢aù¡­el ®r­œ, EJ² fË¢aù¡e cMmL¡l£ hÉ¢J² Abh¡ Eq¡l ¢euÇœeL¡l£ Q¨s¡¿¹ hÉ¢J² Abh¡ hÉhØq¡fL Abh¡ EJ² L¡S-L­jÑl hÉhØq¡fe¡ pÇf¢LÑa ®L¡e Efk¤J² LjÑLaÑ¡ z

2(65) nË¢jL AbÑ ¢nr¡d£epq ®L¡e hÉ¢J², a¡q¡l Q¡L¥l£l naÑ¡hm£ fËL¡nÉ h¡ EqÉ ®k i¡­hC b¡L¤L e¡ ®Le, ¢k¢e ®L¡e fË¢aù¡­e h¡ ¢n­Òf pl¡p¢li¡­h h¡ ®L¡e ¢WL¡c¡­ll j¡dÉ­j j‘¤l£ h¡ A­bÑl ¢h¢ej­u ®L¡e cr, Acr, L¡¢uL, L¡¢lNl£, hÉhp¡ Eæuej§mL Abh¡ ®Ll¡e£¢N¢ll L¡S Ll¡l SeÉ ¢ek¤J² qe, ¢L¿º fËd¡eax fËn¡p¢eL h¡ hÉhØq¡fe¡j§mL L¡­S c¡¢uaÄfË¡ç ®L¡e hÉ¢J² Cq¡l A¿¹i¨ÑJ² qC­he e¡ z

12.         From the plain reading of the aforesaid Provisions. We find that responsibilities of plaintiff was administrative or management of the duties. So, the relationship between the employer (Bank) and employee (plaintiff) were not governed by Master and servant rule.

13.         The plaint of a suit can be rejected by exercising the Power under section 151 of the Code, when from plain reading of the plaint, it appears that the suit is barred under Order VII Rule 11 of the Code.

14.         For the convenience of understanding the provisions of Order VII rule 11 of the Code of Civil Procedure reads as hereunder:

″ 11- The plaint shall be rejected on the following issues:

(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 do so.

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

         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.

15.         From the plain reading of the statements of plaint of the instant suit it is evident that the same clearly discloses the cause of action; the relief claimed is not undervalued; the plaint was not written upon paper insufficiently stamped; from the statement of the plaint it does not appear that the suit is barred by any law.

16.         Now coming to clause (d) of rule 11, it appears that clause (d) of the rule authorise the rejection of a plaint when the suit appears from the statements in the plaint to be barred by any law. This clause applies when it appear from the statements in the plaint that the suit is barred but it has no application where there is no clear or specific admission in the plaint suggesting that the suit is barred. This clause is attracted only when on the admitted facts as appearing from the plaint itself the suit is prima facie barred. As for instance when from the statements made in the plaint it appears that the cause of action arose beyond the period of limitation fixed under the statute and no indication is given that limitation has been saved, the plaint may be rejected. In a proper case, when it appears to be barred by limitation, the plaint may be allowed to be amended without rejection. It is not mandatory for the Court to reject the pliant. It may ask the plaintiff to amend it so as to make suit maintainable. Where the plaintiff does not comply with such an order the Court may reject the plaint. Reference may be made to the cases reported in 18 CWN 1340.  AIR 1928 Oudh 495 and AIR 1953 Cal.222.

17.         In the case of Ratan Chand Dharam Chand Vs. The Secretary of State for India in Council and another, reported in 18 CWN 1340, a Division Bench of Calcutta High Court while considering the scope of Order VII, rule 11(d) observed as follows:-

′′ That rule obviously has no application, for there was no statement in the plaint which suggested that the suit was barred. On the contrary it was specifically stated that notice under sec. 80 had been served on the ′′Collector′′ without specifying the district. The defect was not discovered till after the defendants had entered appearance and it was then too late to reject the plaint ′′.

Similarly in the case of Maqsood Ali Vs. Deputy Commissioner, Bara Banki and another, reported in A.I.R. 1928, Oudh, 495, a Division Bench of Oudh held that if the suit was not on the face of it barred by any law, Order VII, rule 11(d) had no application. The relevant portion of the judgment ran as follows:

′′ We do not consider that the suit appeared from the statement in the plaint to be barred by law and we do not think that rule had any application. He has pointed out to us that in a suit which was filed in a similar manner a Bench of the Allahabad High Court stated in Nachhu Vs. Secy. of State that the plaint ought to have been rejected under the proviso of s. 54(c) of the old Code of Civil Procedure, that clause was exactly the same as Order VII rule 11(d). The learned Judge composing the Bench gave no reasons for this conclusion and did not give any effect to it for we find that the suit with which they were concerned had been dismissed but the Subordinate Judge and as their order was an order dismissing the appeal, the plaint was apparently not rejected. Their Lordships said : ′′ It ought to have been rejected′′ but gave no effect to that view. We have only to note in respect of this point that exactly the same question could have been raised in Bhagchand Dagadusa Vs. Secy. of State. There the suit had been dismissed by the District Judge. The appeal had been dismissed by the High Court and the appeal was again dismissed by their Lordships of the Judicial Committee. It was not there suggested that the proper procedure was to reject the plaint. In a case such as this we are of opinion that the suit is not on the face of it barred by law. The very arguments which have been advanced in appeal show that the suit on the face of it is not barred by law, as the suit has been found to be a suit that has to be dismissed after consideration of the legal arguments. Therefore we are unable to accept this view of the learned Counsel.

18.         The Calcutta High Court in the case of Sreedam Chandra Bhur Vs. Tencori Mukherjee and others reported in A.I.R. 1953 Cal. 222 also held that Order VII rule 11(d) was attracted only when on the admitted facts as appearing from the plaint itself the suit was prima facie barred. The Division Bench in this connection observed as follows:-

′′ This clause is attracted only when on the admitted facts as appearing from the plaint itself the suit is prima facie barred. As for instance when from the statements made in the plaint it appears that the cause of action arose beyond period of limitation fixed under the statute and no indication is given that limitation has been saved, the plaint may be rejected. Even in such a case, an opportunity is to be given to the plaintiff to amend the plaint by setting out an acknowledgement in writing signed by the defendant within the period of limitation if it is so prayed, and that without passing an order for rejection of the plaint. ‘Gunnaji Bhavaji Vs. Makanji  Khoosal Chand’, 34 Bom. 250. As was observed in ‘Ratan Chand V. Secy. of State 18 Cal. WN 1340, action is to be taken under Or. VII, r. 11 of the Code of civil Procedure only if there is a clear and specific admission in the plaint from which it follows that the suit is barred. Reference may also be made to the observations of this Court.’ Prankrishna Vs, Kripannath’. 21 Cal. WN 209 held:

″ Let us now consider whether on the plaint as filed the Court will be justified in rejecting in limine the plaint under  cl.(d), r.11, Or. VII, Civil P.C.  In the body of the pliant there is no admission for the Council of the Assembly is the Government under s. 80, Civil P.C. On the other hand, it is seriously contested on behalf of the plaintiff that neither of the two bodies can even be deemed to be the government. The learned Subordinate Judge refers to his order vaguely to the Trend of French Statutes conferring greater and greater powers on the French Settlement in India and creating a ′Council du Government′ there and later a cutting out Chandernagore from the Federation and conferring on Chandernagore all those powers with a separate .delegate of the ‘Commissionaire de la re-oblique, it is evident that the Chandernagore administration is a government in the grammatical and ordinary sense of the word though its functions may fall short of the those of the Governments existing in India.

We do not think it necessary to refer to other points urged before us by the contending parties. Suffice it to say that the question whether even if the Code of Civil Procedure applies, whether s. 80 would be attracted or not cannot be decided merely on the plaint as it stands. The Court should have registered the plaint, issued notices on the defendants and allowed them to file their written statements. After issues were raised it would have been open to the Court to take up one or more of the issues as preliminary ones and decide the same. Objection that had been raised by the Court ‘suo -motu’ and such other objection as may be raised by the defendants would have to be tried on the merits, and only after all the necessary facts and materials are brought before the Court. ′′

19.         There is no reason to differ from the above principles of law. In the instant case, there is nothing on record to show that on the admitted facts as appearing from the plaint itself the suit is prima facie barred. So the rule 11(d) is not at all attracted here and the plaint cannot be rejected on that score.

20.         In the case of Sundar Ali being dead his heirs: Mannan and others Vs. Md. Serajul Islam Sarker and others 56 DLR(AD) 210 held:

For the ascertainment of the cause of action the Court is required to read the plaint in its entirety.

21.         In the case of Abdul Malek Sawdagar Vs. Md. Mahbubey Alam and others 57 DLR(AD) 18 held:

The question whether the plaint is liable to be rejected being barred by law must be apparent from the statement made in the plaint itself and not from the written statement or any other material other than that has been put in the plaint.

22.         In the case of Md. Abul Khair Vs. Pubali Bank Ltd. and another 21 BLD (AD)32=53 DLR (AD) 62 held:

Where in a suit an application under Order VII Rule 11 of the Code is filed for rejecting the plaint on the ground that the averments made in the plaint do no disclose a cause of action for the suit, the Court is not  called upon to decide the suit on merit on taking evidence. It is only the averment made in the plaint which are to be considered to come to a finding as to whether those disclose a cause of action. The Court while deciding such application is not permitted in law to travel beyond the averments made in the plaint.

M)         In the case of Afzal Hossain Diptee Vs. Radha Kanta Korati and others 15 BLC 196 held:

“Code of Civil Procedure

Order VII rule 11

On going to materials on record it transpires that the grounds urged for rejection of the plaint are absolutely the subject matter of evidence, which cannot be decided before taking evidence. On plain reading of the statements of the plaint 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 paper insufficiently stamped and not barred by any other law. The question whether the plaint is liable to be rejected being barred by law must be apparent from the statement made in the plaint itself and not from the written statement or any other material other than that has been put in the plaint.”

24.         In the case of Bangladesh Water Development Board Vs. Contractor, Manu Barrage 9 BLT 21 held:

“ Arbitration Act, 1940

Section -32

Whether the suit instituted in presence of the arbitration agreement is maintainable.

Held: We find no such provisions in the Act barring a suit on the ground of existence of an arbitration agreement.”

25.         In the case of Shafi A. Chowdhury Vs. Pubali Bank Ltd. and others 54 DLR 310 held:

Section 11 & Order VII rule 11  of the Code.

Ordinarily, a plaint should not be rejected under Order VII rule 11 of the Code on the ground of res judicata unless it is so palpably clear and obvious from a meaningful reading of the plaint that no further evidence is required.”

26.         All the facts and submissions of the learned Counsel of both the parties indicate that the plaint of the suit should not be rejected by exercising the Power laid down in section 151 of the Code by taking the recourse of Order VII Rule 11 (d) of the Code.

27.         In view of the above, the Court below without considering the materials on record and aforesaid principles of law, by rejecting the plaint of the suit committed an error of law. Therefore, the impugned judgment and decree of the Court below is liable to be interfered by the High Court Division.

28.         Moreover the impugned order in its entirety is not well founded in the facts and circumstances of the case. So, the submissions advanced by the learned Counsel for the appellant prevails and appears to have a good deal of force. On the contrary the submissions advanced by the learned Counsels for the respondents are not the correct exposition of law and facts. So we are unable to accept their submissions.

29.         In the result the appeal is allowed. The impugned judgment and decree dated 25-02-2015 passed by learned Joint District Judge, Fifth Court, Dhaka, in Title Suit no. 18 of 2015 is hereby set aside. The Title Suit no. 18 of 2015 shall proceed in accordance with law.

30.         The office is directed to send down the records at once.

Ed.