Alhaj Mohammad Siraj-ud-dowla Vs. Mominullah and others, 1 LNJ (2012) 599

Case No: Civil Revision No. 2594 of 2000

Judge: F. R. M. Nazmul Ahsan,

Court: High Court Division,,

Advocate: Mr. Md. Shahidul Islam,Mr. Rabiul Alam Chowdhury,Mr. Md. Shamsuddin Howlader ,,

Citation: 1 LNJ (2012) 599

Case Year: 2012

Appellant: Alhaj Mohammad Siraj-ud-dowla

Respondent: Mominullah and others

Delivery Date: 2011-01-13

HIGH COURT DIVISION
(Civil Revisional Jurisdiction)

 
Sheikh Abdul Awal, J.
And
F.R.M. Nazmul Ahsan, J.

Judgment
13.01.2011
 
Alhaj Mohammad Siraj-ud-dowla
...Petitioner.
Vs.
Mominullah and others
... Opposite parties
Code of Civil Procedure (v of 1908)
Order VII, rule 11
It appears that the present suit was filed for declaration of title as well as for setting aside the exparte decree and the earlier suit was for declaration of title and recovery of khas possession. From the averment of the plant of the present suit it appears that the plaintiff has distinct cause of action for which it will not be proper to reject the plaint without taking evidence. The Court can reject the plaint only when it comes to the conclusion that even all the allegations made in the plaint are proved even then the plaintiff would not be entitled to any relief whatsoever. As there is sufficient and distinct cause of action in the allegations made in the plaint and if such case is proved the plaintiff would be entitled to the relief sought for. Moreso, in rejecting the plaint the Court has to consider the statement of the plaint only. No error was committed by the trial court in rejecting the application made under Order VII, rule 11 of the Code of Civil Procedure, 1908. …(10 and 13).
 
Bangladesh Jatia Samabaya hilpa Samity Ltd. Vs Shan Hosiery, 10 BLC (AD) 8; Sudhansu Kumar Barai and others vs Abul Hashem and others, 43 DLR 327; Nurunnnesa  and others vs Mohiudin Chowdhury and others, 49 DLR 234; Islami Bank Bangladesh vs Abdul Sah 53 DLR; 50 DLR 29; Siraj Miah vs State , 39 DLR (AD) 46; Shafi-a-Choudhury vs Pubali Bank, 54 DLR311; Nurunnnesa vs Mohiuddin, 49 DLR 428 ref.
 
Mr. Rabiul Alam Chowdhury
---For the petitioner.
Mr. Md. Shamsuddin Howlader with
Mr. Md. Shahidul Islam
---For the opposite-party No.1.

Civil Revision No. 2594 of 2000
 
Judgment
F.R.M. Nazmul Ahasan, J:
 
This rule was issued calling upon the opposite party No.1 to show cause as to why the impugned order dated 11.05.2000 passed by the learned Subordinate Judge, 2nd Court, Dhaka in Title Suit No. 410 of 1998 rejecting an application filed under Order 7 Rule 11 of the Code of Civil Procedure should not be set aside and/or pass such other or further order or orders as to this court may seem fit and proper.
 
The relevant facts of this case are that the present opposite party no.1 as plaintiff has filed a suit being Title Suit No.410 of 1998 in the Court of Subordinate Judge, 2nd Court, Dhaka for a declaration of title in the ‘ka’ schedule land of the plaintiff and for a further declaration that the ex-parte decree dated 25.05.1996 passed in favour of the defendant No. 1 (present petitioner) in Title Suit No.213 of 1994 in respect of ‘kha’ schedule land is illegal, void, fraudulent and not-binding upon the plaintiff.
 
That the defendant no.1 (present petitioner) appeared in the suit and filed written statement on 09.02.1999 denying all the material allegation of the plaintiff. Thereafter, the defendant no.1 filed an application on 23.03.1999 under Order 7 Rule 11 of the Code of Civil Procedure for rejection of plaint of Title Suit No.410 of 1998 before the trial Court contending that the present plaintiff Mominullah as plaintiff previously filed a suit being Title Suit No.377 of 1997 for declaration of title in the suit property; that in Title Suit No.377 of 1997 Mrs. Jahanara Begum wife of M. Waziullah and others were defendants; that those defendants were the allottees of the present defendant No.1 and they have purchased the suit property including other property from present defendant No.1,Al-Haj Mohammad Seraj-ud-dowla; that the defendants of Title Suit No.377 of 1997 filed an application on 14.06.1998 under the provision of Order 7, Rule 11 of the Code of Civil Procedure for rejection of the plaint; that the plaintiff filed written objection on 12.07.1998; that the plaint of Title Suit No.377 of 1997 was rejected on 30.08.1998 on contest and accordingly decree was drawn up and signed on 7.9.1998 and  there upon, being aggrieved by the aforesaid order plaintiff Momin Ullah on 24.12.1998 has filed the instant First Appeal No.196 of 1999 which is pending for disposal before this Court; that appeal is the continuation of original suit presuming that proceedings of Title Suit No.377 of 1997 is pending before this Court; that during pendency of proceedings of Title Suit No.377 of 1997 be this Division, plaintiff Mominullah cannot legally file an another suit being Title Suit No. 410 of 1998 for the same suit property for the same cause of action in the same Court against the same defendant or the predecessor of the same defendant; that in Title Suit No.377 of 1997 plaintiff Mominullah admitted that he is not in possession over the suit property and therefore, he prayed for recovery of khas possession by paying advalorem court fees; that plaintiff Mominullah is not in possession of the same suit property even than he did not pray for recovery of khas possession in Title Suit No.410 of 1998; that the plaintiff cannot get a decree of declaration of his title while he is admittedly out of possession of the suit property without a prayer for recovery of khas possession; that the plaintiff did not pray for consequential relief; that the suit is barred by the provision of section 42 of the Specific Relief Act, Section 12 of the Code of Civil Procedure, Article 164 of the Limitation Act and therefore the plaint of Title Suit No.410 of 1998 is liable to be rejected under Order 7 Rule 11 (d) of the Code of Civil Procedure.
 
That the plaintiff filed written objection on 29.08.1999 against the aforesaid application for rejection of plaint contending, inter alia, that the application is not maintainable and there is no ingredient of rejection of plaint; that the suit is not barred by the provision of section 42 of the Specific Relief Act; that the suit is not barred by the provision of Article 164 of the Limitation Act etc. The plaintiff of course admitted that he filed Title Suit No.377 of 1997 and First Appeal No.196 of 1999.
 
That the application for rejection of plaint was heard on 11.05.2000 and the learned Subordinate Judge, 2nd Court, Dhaka rejected the same on that day holding a view that it will be not proper to reject the plaint without taking evidence in support of its claim.
 
Being aggrieved by and dissatisfied with the aforesaid order the petitioner preferred this Revisional application before this Court and obtained the present Rule.
 
Mr. Rabiul Alam Chowdhury, the learned Advocate appearing on behalf of the petitioner submits that the learned Subordinate Judge did not consider that the plaintiff did not pray for khas possession or consequential relief; that the plaintiff has only prayed for declaration of title and therefore this suit is barred under provision of section 42 of the Specific Relief Act; he submits that the plaintiff filed Title Suit No.377 of 1997 for the same suit property in the Court of Subordinate Judge, 2nd Court, Dhaka impleading the present defendant no.1 for declaration for his title and recovery of khas possession and filed an application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint and the plaint of aforesaid suit has been rejected on contest on 31.08.1999, thereafter the plaintiff has filed  the present F.A. No.196 of 1999 which is pending before this Court for hearing; that he submits that the plaintiff has filed Title Suit No.410 of 1998 afresh in the same Court for the same suit property on the basis of the same document for a same cause of action and the facts are similar of earlier Title Suit No.377 of 1997. He further submits that the plaintiff has prayed for a decree for setting aside decree dated 25.08.1998  passed in Title Suit No.213 of 1994 by the Subordinate Judge, 2nd Court, Dhaka but he has paid fixed Court fees for Tk.300/- only. He did not pay any advalorem Court fees. The learned Advocate for the petitioner finally submits that the plaintiff filed Title Suit No.213 of 1994 in the Court of Subordinate Judge, 2nd Court, Dhaka for declaration of title in the suit property and for cancellation of deed No.15722 dated 21.12.1970 on the ground of fraud. The plaintiff was supposed to file suit within 30 days from the date of decree or from the date of his knowledge of the decree dated 25.5.1996 passed in Title Suit No.213 of 1994 as per provision of Article 164 of the Limitation Act. On the other hand the plaintiff filed the instant suit on 17.11.1998 and therefore, the suit was barred by the law of Limitation. The learned Subordinate Judge without considering the aforesaid facts and rejected the application under order VII Rule 11 of the Code of Civil Procedure and thus committed an error of law resulting in an error in the decision occasioning failure of justice. In support of his contention the learned Advocate for the petitioner referred before us same decisions namely in the case of Islami Bank Bangladesh-vs.-Abdul Jalil reported in 53 DLR 29, 50 DLR 29, in the case of Siraj Miah-vs.-State reported in 39 DLR (AD) 46, in the case of Shafi a Choudhury-vs.-Pubali Bank reported in 54 DLR 311 and in the case of Nurunnessa-vs.-Mohiuddin reported in 49 DLR  428.
 
On the other hand Mr. Md. Shamsuddin Howlader, the learned Advocate appearing for the opposite party no.1 by filing counter affidavit submits that the learned Judge of the trial Court rightly passed the impugned order rejecting the application under Order 7 Rule 11 of the Code of Civil Procedure. He submits that the plaintiff instituted Title Suit No.410 of 1998 with a prayer for declaration of title and further declaration that the disputed ex-parte decree of title Suit No.213 of 1994 is fraudulent, inoperative and not binding upon the plaintiff. The present-plaintiff-opposite party was not made party in Title Suit No.213 of 1994. In the aforesaid Title Suit No.410 of 1998 cause of action was written in paragraph no.14 of the plaint is different from the aforesaid suit No.377 of 1997. He further submits that in exercising the power of rejecting a plaint the court can look into the statements of the plaint only it cannot consider any facts stated in the written statement and documents produced by the defendants. A plaint cannot be rejected without taking evidence of the parties at the trial and the issue of maintainability of the suit would be framed at the time of trial. Mr. Md. Shamsuddin Howlader in supported his arguments referred to the decisions reported in 10 BLC (AD) 8 and 43 DLR 326.
 
We have perused the plaint, impugned order of the trial Court and considered the submissions made by the learned Advocates of both the sides, it is evident from the Revisional application that the Title Suit No.377 of 1997 was filed on 01.12.1997 for declaration of title and for recovery of khas possession and that plaint was rejected on 30.08.1998 against which First Appeal No.196 of 1999 has been preferred and during pending  the same Title Suit No.410 of 1998 was filed on 17.11.1998 for declaration of title and for setting aside the ex-parte judgment and decree dated 23.5.1996 passed in Title Suit No.213 of 1994. It is found in the present suit defendant appeared by filing written statement and thereafter he filed an application under Order 7 Rule 11 of the Code of Civil Procedure which was rejected by the trial Court below stating as follows:-

“শুনিলাম। আরজি প্রত্যাখ্যানের দরখাস্ত, তৎ বিরুদ্ধে দাখিলী লিখিত আপত্তি এবং নথি পর্য্যালোচনা করিলাম। ঊহা পর্য্যালোচনায় আরজি প্রত্যাখ্যানের এই মুহুর্তে খুজিয়া পাওয়া যায় না। তদুপরি পূর্ববর্তী মামলা ও বর্তমান অত্র মামলার বক্তব্য সঠিক উহা সাক্ষ্য গ্রহণ ব্যতিরেকে এই মুহুর্তে সঠিকভাবে নির্রপণ করা সম্ভব নয় পূর্ববর্তী মামলা চালু থাকিলেও ঐ মামলার দ্বারা বর্তমান মামলা বর্ণিত অবসহাধীনে বাধা দেখা যায় না।
ফলে আরজি প্রত্যাখ্যানের দরখাস্ত না মনজ্ঞুর হইল। তবে কোনপক্ষ যদি মনে করেন পূর্ববর্তী মামলার সাথে অত্র মামলা সংক্ষিপ্ত তাহা হইলে ঐ মোকদদমার পরবর্তী আদেশ প্রাপ্তি সাপেক্ষে দেঃ কাঃ বিধি আইনের ১০ ধারা কিংবা ১৫১ ধারা প্রয়োগে সহগিতের প্রার্থনা করিয়া অত্র মোকদদমায় প্রতিকারের সুযোগ নিতে পারেন। আগামী ১৩/৬/২০০০ ইং তাং ইস্যু গঠনের জন্য দিন ধার্য্য করা হইল।”
 
We have carefully examined the record and on perusal of the plaint it appears to us that the present suit was filed for declaration of title as well as setting aside the ex-parte decree and the earlier suit was for declaration of title and recovery of khas possession. Therefore, we find from the averments of the plaint of the present suit that the plaintiff has distinct cause of action and it will be not proper to reject the plaint without taking evidence and as such the learned Subordinate Judge appears to be perfectly justified in refusing to reject the plaint.
 
In the case of Bangladesh Jatiya Samabaya Shilpa Samity Ltd -vs.- Shan Hosiery, Proprietor Md. Abu Taleb and others reported in 10 BLC (AD) 8, it has been held that, “With regard to rejection of plaint under Order VII rule 11 of the Code of Civil Procedure, the High Court Division rightly found that in deciding the question as to whether a plaint is liable to be rejected, the court is always required to peruse the plaint only and court is not permitted to travel beyond the plaint to dig out grounds to reject the plaint which is a settled principle of law.”
 
In the case of Sudhansu Kumar Barai and others-Vs.-Abul Hashem and others reported in (43 DLR 327), it has been held that, “In exercising the power of rejecting a plaint the Court can look into the statements of the plaint only. It cannot consider any fact stated in the written statement or any document produced by the defendant.”
 
In the case of Nurunnessa and others -vs.- Mohiuddin Chowdhury and others reported in 49 DLR 234, it is held that; “The settled principle of law is that in deciding the question as to whether the plaint should be rejected the Court is required to consider only the plaint. The Court is required to apply its mind to the averments made in the plaint itself as a whole, assuming all the averments made in the plaint itself as a whole, assuming all the averments made therein to be correct, without taking into consideration the possible defence plea. In other words, the Court can reject the plaint only when it comes to the conclusion that even if all the allegations made in the plaint are proved still then the plaintiffs would not be entitled to any relief whatsoever. From the allegations made in the plaint we find that there is sufficient and distinct cause of action and if the averments made in the plaint are proved the plaintiffs would be entitled to the relief sought for.
 
From the facts and circumstances of the case and the decisions cited above we are unable to accept the contentions raised by the learned Advocate for the petitioner.
 
The decisions referred by him reported in 53 DLR 29, 39 DLR (AD) 45, 54 DLR 311 and 49 DLR 428, are quite distinguishable from the facts and circumstances of the present case and have no manner of application in the present case.
 
In view of our discussions made in the foregoing paragraphs and the principles laid down in the decisions reported in 10 BLC (AD) 8 and 43 DLR 327, we are of the opinion that the learned Subordinate Judge committed no error of law in rejecting the application under Order 7 Rule 11 of the Code of Civil Procedure.
 
In the result, the Rule is discharged without any order as to costs.
 
The order of stay granted earlier by this Court is vacated.

Communicate the order at once.

Ed.