Amir Hossain Khairati Vs. Abdul Aziz Bepari and others, 47 DLR (AD) (1995) 106

Case No: Civil Appeal No. 19 of 1994

Judge: Latifur Rahman ,

Court: Appellate Division ,,

Advocate: Khondker Mahbubuddin Ahmed,,

Citation: 47 DLR (AD) (1995) 106

Case Year: 1995

Appellant: Amir Hossain Khairati

Respondent: Abdul Aziz Bepari

Subject: Civil Law,

Delivery Date: 1995-1-31

 
Supreme Court
Appellate Division
(Civil)
 
Present:
MH Rahman J
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J
 
Amir Hossain Khairati being dead his heir: Altaf Hossain and others
………….........Appellants
Vs.
Abdul Aziz Bepari and others
........................Respondents
 
Judgment
January 31st, 1995
 
Code of Civil Procedure (V of 1908)
Order XXIII Rule 1(3)
Dismissal of a suit for non-prosecution does not amount to withdrawal of the suit and the plaintiff is not precluded to file a fresh suit on a new cause of action.
Section 20 & Or. 2(2)
Cause of action may be defined as every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right for the judgment of the Court.
 
Lawyers Involved:
Khandkar Mahbubuddin Ahmed, Senior Advocate, instructed by Mvi. Md. Wahidullah, Advocate‑on‑Record ‑For the Appellants.
Abdus Salam Khan, Senior Advocate, instructed by Md. Aftab Hossain, Advocate‑ on‑ Record ‑ For Respondent Nos. 1 & 2.
Not Represented ‑ Respondent Nos. 3‑7.
 
Civil Appeal No. 19 of 1994
(From the Judgment and order dated 10.5.93 passed by the High Court Division in Appeal from Original Decree No.25 of 1985).
 
JUDGMENT
Latifur Rahman J:
 
This appeal by leave by the defendant‑appellants is from judgment and order dated 10.3.94 passed by a Division Bench of the High Court Division in First Appeal No.25 of 1985 setting aside those of the Subordinate Judge, Munshiganj dated 31.5.84 in Title Suit No. 5 of 1984 rejecting the plaint under Order 7 rule 11 of the Code of Civil Procedure and further directing the trial Court to proceed with the suit in accordance with law.
 
2. Plaintiff‑respondents instituted the aforesaid suit for specific performance of contract against defendant Nos. 1 to 11 along with defendant No. 12, the People's Republic of Bangladesh, upon making various averments including that the plaintiffs filed TS No.7 of 1983 in the Court of Subordinate Judge, Munshiganj for specific performance of the same contract against defendant Nos. 1‑4 but as village elders asked both the parties to withdraw pending cases both in criminal and civil Courts for settlement of the dispute the plaintiffs on good faith filed a petition for dismissal of that suit for non‑prosecution, that in the meantime defendant Nos. 1‑4 illegally transferred some portion of the suit property to defendant Nos. 5‑11 who were fully aware of the baina patra executed by Jotirmoy Das, the vendor, in favour of the Plaintiffs, that the plaintiffs requested the principal defendants on several occasions to execute and register the sale deed in their favour on receipt of the balance consideration money but they paid no heed and hence the suit was instituted upon a new cause of action.
 
3. The present appellants, who are defendant Nos. 5‑11 filed an application on 9.5.84 under Order 7 rule 11(a) (d) of the Code of Civil Procedure praying for rejection of the plaint on the ground that the plaintiffs' earlier suit being Title Suit No.7 of 1983, instituted for endorcing the same alleged contract dated 15.12.79 with Jotirmoy Das, having been dismissed for non ‑prosecution, the institution of the present suit is without any cause of action and is barred by law.
 
4. The teamed Subordinate Judge accepted the contention of the defendants and rejected the plaint whereupon the plaintiffs preferred appeal to the High Court Division impugning the judgment and order or the learned Subordinate Judge. The High Court Division by the impugned judgment and order, set aside the order of the learned Subordinate Judge and directed that the suit be tried in accordance with law.
 
5. Leave was granted to consider whether the High Court Division erred in not holding that the suit was barred under Order 23 rule 1(3) of the Code of Civil Procedure in that the dismissal of the plaintiffs' earlier suit for non‑prosecution amounted to a withdrawal of the suit and thus they were precluded from instituting the instant suit in respect of the same cause of action and over the same subject matter without the leave of the court.
 
6. Sub‑rule (3) of rule 1 of Order 23 of the Code of Civil Procedure provides as follows:
 
"Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in Sub‑Rule (2), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim".
 
From the averments made in the plaint it appears that Title Suit No.7 of 1983 was dismissed for non‑prosecution and that suit was not withdrawn by the plaintiffs. As such, the provision of Order 23 rule 1(3) is not applicable as the order of non‑prosecution of the earlier suit does not amount to withdrawal. Hence the plaintiff is not precluded to file a fresh suit by making out a new cause of action on fresh averments made in the subsequent suit.
 
7. So far as the cause of action for the suit is concerned, the plaintiffs stated in paragraph 10 of the plaint as follows:
 
"That the cause of action for the suit arose on 29.9.83 when the plaintiffs came to learn that the principal defendant Nos. 1‑4 transferred some lands from the suit plots of land to the principal defendant Nos. 5‑11 and lastly, on 1.2.84 when the principal defendants refused to execute and register the sale deed in favour of the plaintiffs".
 
So far as the cause of action of the present suit is concerned, the plaintiffs clearly stated in paragraph 10 of the plaint the dates of cause of action. Order 7 rule 11(a) provides that the plaint shall be rejected where it does not disclose a cause of action. Cause of action may be defined as every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right for the judgment of the court It may be noted that defendant Nos.5‑11 were not parties in the earlier Title Suit No.7 of 1983 and they have been impleaded in the present suit as subsequent purchasers from the heirs of vendors with notice of the said agreement and the application for rejection of the plaint has been filed by these defendant Nos. 5‑11 and not by the heirs of the vendors defendant Nos. 1‑4.
 
8. Plaintiff‑respondent filed Title Suit No.7 of 1983 in the Court of Subordinate Judge, Munshiganj for specific performance of contract against defendant Nos.1‑4 but at the intervention of the village elders the plaintiff on good faith filed a petition for dismissal of the suit for non­-prosecution. In the meanwhile defendant Nos.14 transferred some portion of the suit properties to defendant Nos.5‑11 allegedly in collusion with defendant Nos. 5‑11, who were allegedly fully aware of the bainapatra executed by Jotirmoy Das in favour of the plaintiff and hence and hence this present suit being Title Suit No.5 of 1994, was filed for specific performance of contract impleading also defendant Nos.5‑11 on a new cause of action. Hence it cannot be said that there was no cause of action for filing of the present suit and consequently the plaint of the present suit could not be rejected for lack of any cause of action.
 
9. Order 7 rule 11(d) provides that the plaint shall be rejected where the suit appears on the statement in the plaint to be barred by law. A suit is said to be barred by law when the institution of the suit is expressly provided by any law to be barred. Mr. Khandkar Mahbubuddin Ahmed, learned Advocate, also could not show that on the averments as made in the plaint the suit is barred by any law. Consequently the learned Judges of the High Court Division rightly held that the plaint cannot be rejected.
 
For the reasons stated above this appeal is dismissed with cost.
 
Ed.