Ariz Khan Vs. Government of Bangladesh and other, (Soumendra Sarker, J.)

Case No: Civil Revision No. 4035 of 2014

Judge: Soumendra Sarker, J

Court: High Court Division,

Advocate: Mr. Md. Abdus Samad, Advocate ,

Citation: 2018(2) LNJ

Case Year: 2017

Appellant: Ariz Khan

Respondent: Government of the People’s Republic of Bangladesh, represented by the Deputy Commissioner, Sylhet and others.

Subject: Code of Civil Procedure

Delivery Date: 2019-11-30

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J

 

Judgment on

11.12.2017

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Ariz Khan

. . . Petitioner

-Versus-

Government of the People’s Republic of Bangladesh, represented by the Deputy Commissioner, Sylhet and others.

. . . Plaintiff-Opposite Parties.

Code of Civil Procedure (V of 1908)

Order 7, Rule 11

The present-opposite party No. 1 in their plaint has raised a specific cause of action which is their date of knowledge. The allegation raised by the defendant-petitioner is not proved or the plaint cannot be said mala fide at this stage. Apart from this, the plaint cannot be rejected outright before judging the evidence led from the sides of the respective parties to substantiate their pleadings.         . . .(13)

Nurul Vs. Moin, 39 DLR (AD) 1 ref.

Mr. Md. Abdus Samad, Advocate

. . . For the petitioner

Mr. Abdul Hai, D.A.G. along with

Mr. Md. Shahidul Islam Khan, A.A.G.

. . . For opposite parties

JUDGMENT

Soumendra Sarker, J:  The Rule issued calling upon the opposite party No.1 to show cause as to why the judgment and order dated 11.06.2014 passed by the learned Special District Judge, Sylhet in Civil Revision No. 69 of 2011 disallowing the revision and affirming the judgment and order dated 11.10.2011 passed by the learned Joint District Judge, 2nd Court, Sylhet in Title Suit No. 170 of 2009 should not be set-aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

2.             The facts leading to the issuance of the Rule in a nutshell can be stated thus, the present Opposite Party No. 01 as Plaintiff filed a Title Suit being No. 170 of 2009 before the 2nd  court of the learned Joint District Judge, Sylhet against the defendant-petitioner and others for a declaration that the judgment and decree passed in Title Suit No. 220 of 1973 dated 26.05.1977 is inoperative, not effective and not binding upon the plaintiff contending inter alia that the plaintiff to the above mentioned Title Suit No. 220 of 1973 on a false allegation and on the basis of some forced anti dated papers filed the Title Suit being No. 222 of 1973 in the 2nd court of the learned Joint District Judge, Sylhet and in that suit behind the back of present-plaintiff who was the defendant No. 25 to that suit collusively after practicing fraud upon the present plaintiff obtained a collusive decree and the plaintiff-government of Bangladesh getting knowledge of that suit and decree on 29.03.2009 have preferred the Original Suit being No. 170 of 2009. After service of summons notice upon the defendants of the Title Suit No. 170 of 2009, the defendants No. 1-11 after making their appearance filed an application for rejection of plaint under Oder VII, rule 11 of the Code of Civil Procedure before the learned trial court. The learned trial court i.e. the learned Joint District Judge, 2nd court, Sylhet hearing the parities to the suit by his judgment and order dated 11.10.2011 rejected the application for rejection of the plaint filed by the defendant-petitioner and others.

3.             Being aggrieved the defendants preferred a civil revision No. 69 of 2011 in the court of the learned District Judge, Sylhet which was transmitted for hearing and disposal to Janonirapotta Bignokari Oporadh Damon Tribunal and Special Judge, Sylhet and the learned Special Judge, Sylhet by the impugned judgment and order dated 11.06.2014 disallowed the civil revision and affirmed the order of the learned trial court.

4.             Being aggrieved by and dissatisfied with the impugned judgment and order of the 1st court of revision, the defendant No. 01 as petitioner with leave of this court has preferred 2nd revision under section 115 (4) of the Code of Civil Procedure and obtained a Rule with an interim order of stay.

5.             During hearing of the Rule, Mr. Md. Abdus Samad, the learned Advocate appeared on behalf of the petitioner while Mr. Md. Abdul Hai, the learned Deputy Attorney General along with Mr. Md. Shahidul Islam Khan, the learned Assistant Attorney General appeared on behalf of the plaintiff-opposite party.

6.             The learned Advocate appearing on behalf of the petitioner submits that the learned trial court as well as the 1st court of revision during disposal of the application for rejection of plaint and subsequent revisional application under section 115(2) of the code of Civil Procedure committed illegality. The learned advocate further submits that the judgment and decree passed in Title Suit No. 222 of 1973 has been affirmed by this court in Civil Revision 273 of 1982 and as such the courts below committed wrong in holding the view that the declaratory suit filed by the defendant-government challenging the judgment and decree passed in earlier Tile Suit No. 222 of 1973 is maintainable. The learned Advocate also submits that the government claimed that the suit property is a vested and non-resident property, but after the promulgation of ‘Arpito Sompotti Prottarpon Ain, 2001’, it has been clear that the suit property is not a vested property, since it is not  enlisted in the “Ka” schedule list, published in the official Gazette and as such there is no reason to file the original suit from the side of the government treating the property as vested property. The learned Advocate lastly after referring some decisions of our Apex court submits that the plaint submitted from the side of the defendant No. 25 in the declaratory suit being Title Suit No. 170 of 2009 is liable to be rejected under the ambit of Order VII, rule 11 of the Code of Civil Procedure.

7.             As against the aforesaid submission of the learned Advocate for the petitioner the learned Deputy Attorney General opposing the Rule controverted  the argument advanced form the side of the learned counsel for the petitioner and submits that, neither the trial court nor the 1st court of revision during passing their judgment and orders committed any illegality or irregularity. The learned Advocate further submits that the present-petitioner and others behind the back of the government without service of summons notice practicing fraud upon the court and the parties managed to obtain a collusive judgment and decree on 26.05.1977, which is not binding upon the defendant-government to that suit  and challenging that judgment and decree the government instituted a Title Suit No. 170 of 2009 for getting a declaration that the judgment and decree passed in favour of the present-petitioner and others is ineffective, collusive and not binding upon the plaintiff. The learned Deputy Attorney General also submits that, the area of the suit land is 12.36 acres in which the Government of Bangladesh has right, title, interest and possession, and stating the facts as to how and why the suit property is the government property, and the present-petitioner and others how has practiced fraud in getting their decree in their suit, filed the plaint in the  Title Suit being No. 170 of 2009 which is pending for disposal on merit. The learned Deputy Attorney General also submits that there is no scope to entertain the application for rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure as there is no ingredient in the instant application for rejection of the plaint by which such application can be allowed. The learned Deputy Attorney General lastly submits that against the judgment and order passed in Civil Revision No. 273 of 1982 of this court an appeal being No. Civil Appeal No. 360 of 2002 is pending before the Honorable Appellate Division of the Supreme Court of Bangladesh vide “Annexure-D-1”. Therefore, it cannot be said that the Government is not empowered or have no locus standi or legal character to challenge the judgment and decree in their Title Suit No. 170 of 2009 before a competent court of law. The learned Deputy Attorney General in the conclusion of his submission submits that, the decisions referred to from the side of the present-petitioner are not applicable  in this case, since the facts and circumstances of this case is quite different with that of the facts and circumstances from where the decisions were given.

8.             Considering the submission of the learned Advocates having gone through the judgment and order passed by the trial court as well as the 1st court of revision and all other connected papers including the plaint of Title Suit No. 170 of 2009 (Annexure-A), the judgment and order passed by this court in Civil Revision No. 3780 of 2000 (Annexure-D), the schedule of the plaint of Title Suit No. 170 of 2009 and the certified copy of the order passed by their Lordships in Civil Appeal No. 360 of 2002 (Annexure-D-1), the application for rejection of pliant under Order VII Rule 11 of the Code of Civil Procedure (Annexure-B-1) it transpires that, the learned trial court during disposal of the application for rejection of plaint held that there is an allegation of fraud, raised from the side of the government; which is required to be looked into, and the application for rejection of plaint having no merit is liable to be rejected.

9.             Subsequently, the 1st court of revision holding the view that there is a contention from the side of the government in their declaratory suit that the plaintiff to the former suit have practiced fraud and there is a collusion in the service of summons-notice upon the court. Besides this, the question of abatement of the suit which is raised from the side of the defendant-petitioner is required to be adjudicated at the time of trial of the original suit. The learned 1st revisional court finding no material for rejection of plaint affirmed the order of the trial court by the impugned judgment and order.

10.         In this context, going through the contents of the application for rejection of plaint I find that the defendants No. 1-11 in their application under Order VII Rule 11 of the Code of Civil Procedure contended that they have obtained the decree against the government and others without practicing any fraud or suppression of summons and the government who is the defendant No. 25 was well aware about the suit, but inasmuch as the Government has no title and interest in the suit property,  they did not contest the Title Suit No. 222 of 1973. It was further contended in the application for rejection of plaint that there is no fraud or collusion in getting the decree in Title Suit No. 222 of 1973 and the decree has been affirmed by the Honorable High Court Division of the Supreme Court of Bangladesh in Civil Revision No. 273 of 1982 and the Government only to stay the further proceedings of Title Execution Case No. 04 of 2000 have instituted the subsequent Title Suit No. 170 of 2009.

11.         It is to be mentioned here that, Order VII Rule 11 of the Code of Civil Procedure has empowered the court to reject the plaint in appropriate case, and the provisions laid down in the relevant Rule runs as follows:

“The plaint shall be rejected in the following cases:-

(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 to do so;

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

12.         In the instant case as I have come across from the connected papers that here in this case, there is no such reason or ground as cited above, by which it can be held that the learned trial court as well as the 1st court of revision committed any illegality or infirmity in passing their judgment and orders. Furthermore, the contention which is given in the application for rejection of plaint is a mixed question of facts and law, which is required to be adjudicated by evidence and prior to that, at this stage there is no scope to draw such inference that the plaint is vexatious or the suit preferred by the government is barred by any law or there is no cause of action to prefer the suit as instituted from the side of the present-opposite party No. 01. 

13.         In the case of rejection of plaint, the plaint alone and not the application of defendant shall be the basis of rejection of plaint. In the instant case I find that the present-opposite party No. 01 in their plaint has raised a specific cause of action which is their date of knowledge. The allegation raised by the defendant-petitioner is not proved or the plaint cannot be said mala fide at this stage. Apart from this, the plaint cannot be rejected outright before judging the evidence led from the sides of the respective parties to substantiate their pleadings. I find support in the decision of our Apex Court passed in the case of Nurul vs. Moin 39 DLR (AD) 1.

14.         Besides this, the application for rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure has a very limited scope. Only where the ingredients spelt out earlier is apparent from the face of the record, the court is empowered to reject the plaint under the ambit of Order VII Rule 11 of the Code of Civil Procedure.

15.         Having regard to the facts, circumstances and discussions referred to above I am constrained to hold such a view that the decisions referred to from the side of the learned council for the petitioner have got no nexus in the instant case due to distinguishable facts and circumstances of the case.

16.         Accordingly, the Rule has got no merit to succeed.

17.         In the result; the Rule is discharged without any order as to costs. The impugned judgment and order dated 11.06.2014 passed by the learned Special District Judge, Sylhet in Civil Revision No. 69 of 2011 is hereby affirmed.

18.         The order of stay granted earlier by this court at the time of issuance of the Rule stands vacated.

19.         Communicate the judgment and order at once.

         Ed.  



Civil Revision No. 4035 of 2014