Anarul Islam Vs. Government of Bangladesh and others, 2 LNJ (2013) 164

Case No: Civil Revision No. 3444 of 2010

Judge: Sheikh Abdul Awal,

Court: High Court Division,,

Advocate: Mr. Khijir Ahmed,Mr. Arobinda Kumar Roy,Mr. Md. Aminul Islam,Ms. Suchitra Sen Gupta,,

Citation: 2 LNJ (2013) 164

Case Year: 2013

Appellant: Anarul Islam

Respondent: Government of Bangladesh and others

Subject: Revisional Jurisdiction, Res Judicata,

Delivery Date: 2012-12-12

HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Sheikh Abdul Awal, J.

Judgment
12.12.2012
  Anarul Islam
... Defendant Appellant.
-Versus-
Government of Bangladesh, represented by the D.C. Meherpur and others.
. . .Plaintiff-opposite parties.
 
Code of Civil Procedure (V of 1908)
Section 11, 115 (4) and Order VI, rule 11
Since in between the same parties over the self same land the defendant petitioner earlier got decree in the previous suit and it was upheld by the High Court Division, the suit is barred by res-judicata.
The suit is barred by res-judicata, which is  a question of fact and law,  normally in such type of suits plaint cannot be rejected but  in this case  it is clearly found that over  the self same suit land and in between  same parties the defendant-petitioner earlier got decree in Title Suit No. 448 of 1975 and the said decree was upheld by the High Court Division in Civil Revision No. 4573 of 1995 vide judgment and order dated 18.02.2002 and under  such facts and circumstance the trial Court below committed no wrong in holding that the suit is clearly barred by  principle of res-judicata. The ultimate result of the suit is as clear as day light, the plaintiff should not be allowed to reopen the same matter afresh after losing upto the High Court Division. ...(13)

Code of Civil Procedure (V of 1908)
Sec 115 (2) and Order VII, rule 11
No revisional application lies under section 115 (2), C.P.C against the order of rejection of Plaint as it is an appealable order.
Furthermore, the Revisional Court below appears to have committed illegality in entertaining the Revisional application under section 115(2) CPC against the order of rejection of plaint inasmuch as order of rejection of plaint is appealable. My view is, therefore, that the judgment of the Revisional Court below is not based on proper and correct appreciation of both law and fact….(14)

Mr. Khijir Ahmed, Advocate
. . .For the petitioner.

Mr. Arobinda Kumar Roy with
Ms. Suchitra Sen Gupta, A.A.Gs.
. . . For the opposite party No.1.

Mr. Md. Aminul Islam, Advocate
. . . For the opposite party No.3

Civil Revision No. 3444 of 2010
 
JUDGMENT
Sheikh Abdul Awal, J:
 
In this Revisional application under section 115(4) of the Code of Civil Procedure the petitioner calls in question the legality and propriety of the impugned judgment and order dated 3.5.2010 passed by the learned District Judge, Meherpur in Civil Revision No.05 of 2008 remanding the suit to the trial Court  after setting aside the order dated 22.5.2008 passed by the learned Joint District Judge, Meherpur in Title Suit No.05 of 1999 rejecting the plaint.

Facts necessary for the purpose of disposal of this case are as follows:-
The opposite party No.1, Government of the People's Republic of Bangladesh, represented by the Deputy Commissioner, Meherpur as plaintiff instituted a suit being Title Suit No.05 of 1999 in the Court of Joint District Judge, Meherpur for declaration of title on the averments that the suit land along with other lands were vested in favour of the Government though during S.A. operation the record was wrongly prepared in the name of the defendant No.1 and thereupon,  the defendant claimed the suit land and hence, the suit.

The defendant-petitioner entered appearance in the suit and filed an application under Order 7, Rule 11 of the Code of Civil Procedure for rejection of the plaint stating, inter-alia, that over the self same suit land and in between  same parties the defendant-petitioner earlier got decree in Title Suit No.448 of 1975 and the said decree was upheld by the High Court Division in Civil Revision No.4573 of 1995, vide judgment and order dated 18.02.2002 and as such the suit is clearly barred by law of res-judicata.

On Revision, the learned District Judge, Meherpur upon hearing the parties by the impugned judgment and order dated 3.5.2010 allowed the Revision and set-aside the order dated 22.5.2008 passed by the learned Joint District Judge, Meherpur in Title Suit No.05 of 1999 holding that the property as described in the plaint of  earlier Title Suit No.448 of 1975 and in the plaint of the present suit are not same and similar and  thus, the trial judge wrongly decided the question of maintainbility of the suit without taking evidence.

Being aggrieved by the aforesaid judgment and order dated 3.5.2010 the present defendant-petitioner moved this Court and obtained the present Rule.

Mr. Khijir Ahmed, the learned Advocate appearing for the petitioner after placing the impugned judgment and order submits that the Court of appeal below committed illegality in entertaining the  Revisional application  against the order of rejection of plaint inasmuch as order of rejection of plaint is appealable and as such the impugned judgment and order is not tenable in law. He next upon  referring to the schedule of both the suits submits that dag of the suit  property, parties in both the suits are same and it is apparent from the record that the  plaintiff-opposite party No. 1 after being unsuccessful up to the High Court Division in Civil Revision No.4573 of 1995 preferred the instant suit being Title Suit No.05 of 1999 and the  learned Joint District Judge was perfectly justified in allowing the petitioner's application under Order 7, Rule 11 of the Code of Civil Procedure on the clear finding that suit is barred by law of res-judicta. He further submits that the lower Revisional Court without applying its judicial mind into the facts and circumstance of the case and  law bearing on the subject mechanically arrived at a finding that without taking evidence it is not possible to decide whether the suit is barred by principle of res-judicata and the same has resulted in an error in the impugned decision occasioning failure of justice.

Mr. Arobinda Kumar Roy, the learned Assistant Attorney General appearing for the opposite party No.1, on the other hand, supports the impugned judgment and contends that the learned District Judge was perfectly justified in holding that in the facts and circumstances of the case the plea of res-judicata  can not be decided   without taking evidence at the time of trial.

Mr. Md. Aminul Islam, the learned Advocate appearing for the opposite party No.3 at the very outset adopting the submission of the learned Assistant Attorney General opposes the Rule.

I have heard the learned Advocate and the learned Assistant Attorney general and perused the Revisional application, supplementary affidavit dated 12.11.2012 and other materials on record including the judgments of two Courts below. The main point for consideration is, as already noticed, whether the learned District Judge was right in holding that the learned trial judge wrongly decided the question of maintainability of the suit without taking evidence  in an application under Order 7, Rule 11 of the Code of Civil Procedure.

On going through the materials on record, it appears that admittedly the Government, opposite party No.1 after being unsuccessful  in Title Suit No.448 of 1975 up to the High Court Division in Civil Revision No.4573 of 1995 filed Title Suit No.05 of 1999 in the Court of Joint District Judge, Meherpur for declaration of title over the self-same  suit property. It is also found that contents of both the plaints are almost similar, dag of the suit   land of both the suits and  parties are same.

On perusal of the order of the trial Court it appears that the learned Joint District Judge, 1st Court, Meherpur arrived at a finding  inter-alia, that: উক্ত মঞ্জুর আদেশের বিরুদ্ধে মাননীয় হাইকোর্ট বিভাগের ৪৫৭৩/৯৫ নং সিভিল রিভিশন মকদ্দমা দায়ের হয়। উক্ত সিভিল রিভিশন মকদ্দমাটি শুনানী অত্র মাননীয় জেলা আদালতে মিস আপীল ১২/৯৪ কেসটির মঞ্জুর আদেশ বাতিল করনে এবং বিজ্ঞ মুনসেফ আদালতের মিস ১২০/৭৭ নং কেসের আদেশটি বহাল রাখে। সুতরাং দাখিলী কাগজাদি পর্যালোচনায় প্রতীয়মান হয় নালিশী সম্পত্তির স্বত্ব প্রচারের ডিত্র্রীর এই মকদ্দমার ১নং বিবাদী বরাবর অদ্যবধি বহাল আছে। মাননীয় হাইকোর্ট বিভাগের আদেশের বিরুদ্ধে মাননীয় আপীল বিভাগ কোন প্রতিকার প্রার্থী হয়েছে কিনা, সেটি জানা যায় না। অর্থাৎ একই পক্ষদের মধ্যে একই নালিশী সম্পত্তি নিয়ে, একই প্রার্থনায় আনিত একাধিক মকদ্দমা অবশ্যই চলতে পারে না। সেক্ষেত্রে এই মকদ্দমাটি রেসজুডিকেটা দোষে বারিত বটে সংগত কারনে এই মকদ্দমাটি রক্ষনীয় নয়।

These are the findings of fact based on proper and correct appreciation of both law and fact. I find nothing wrong in the trial  Court’s finding. The Revisional Court below, however, in its turn without adverting the material findings of the trial court below reversed the decision of the Joint District Judge, Meherpur. So, I am unable to agree with the finding of the lower Revisional Court  that the trial Court  below wrongly decided the question of maintainability of the suit without taking evidence  in an application under Order 7, Rule 11 of the Code of Civil Procedure.

The suit is barred by res-judicata, which is  a question of fact and law,  normally in such type suits plaint cannot be rejected but  in this case  it is clearly found that over  the self same suit land and in between  same parties the defendant-petitioner earlier got decree in Title Suit No.448 of 1975 and the said decree was upheld by the High Court Division in Civil Revision No.4573 of 1995 vide judgment and order dated 18.02.2002 and under  such facts and circumstance the  trial Court below committed no wrong in holding that the suit is clearly barred by  principle of  res-judicata. The ultimate result of the suit is as clear as day light, the plaintiff should not be allowed to reopen the same matter afresh after losing upto the High Court Division.

Furthermore, the Revisional Court below appears to have committed illegality in entertaining the   Revisional application under section 115(2) CPC  against the order of rejection of plaint inasmuch as order of rejection of plaint is appealable. My view is, therefore, that the judgment of the Revisional Court below is not based on proper and correct appreciation of both law and fact.

For the reasons stated above the judgment of the Revisional Court below  does not deserve to be sustained.

In the result, the Rule is made absolute. The impugned judgment and order dated 3.5.2010 passed by the learned District Judge, Meherpur in Civil Revision No.05 of 2008 is set aside. The order of stay granted earlier by this Court stands vacated.

Let a copy of the judgment along with the lower Court's record be sent down at once.

Ed.