Belayet Hossain Vs. Md. Mizanur Rahman and others, (Md. Ashraful kamal, J.)

Case No: Civil Revision No. 81 of 2010

Judge: Md. Soumendra Sarker, J And Md. Ashraful Kamal, J

Court: High Court Division,

Advocate: Mr. Syed Mokaddas Ali, Advocate ,

Citation: 2018(2) LNJ

Case Year: 2016

Appellant: Belayet Hossain

Respondent: Md. Mizanur Rahman and others

Subject: Code of Civil Procedure

Delivery Date: 2019-12-02

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Soumendra Sarker, J

And

Md. Ashraful Kamal, J

 

Judgment on

08.08.2016

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Belayet Hossain

. . . Defendants-Petitioner

-Versus-

Md. Mizanur Rahman and others

. . . Plaintiffs-Opposite parties

Code of Civil Procedure (V of 1908)

Order VII, Rule 11

Section 151

The basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint. If on a meaningful and formal reading of the plaint, it appears to be manifestly fictitious and meritless in the sense of not disclosing a clear right to sue, the Court should exercise the power under Order 7 Rule 11 of the Code. The real object of the Order 7 Rule 11 of the Code of Civil Procedure is to keep out of Courts irresponsible suits. If it is found that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised. Question is whether a real cause of action has been set out in the plaint. Clever drafting creating illusions are not permitted in law and a clear right to sue should be shown in the plaint. The Court should always be vigilant for scrutinizing the pleading and materials placed before it is to ascertain whether the litigation is frivolous or maintainable at all. The Court must exercise its power at every stage in order to nip the frivolous cases in the bud. It is well settled now that a plaint may be rejected under Order 7 Rule 11 of the Code of Civil Procedure merely on a plain reading of the plaint but in exceptional circumstance the Court may invoke its inherent jurisdiction and can through the plaint out in limine. It is also well settled that the plea of implied bar should ordinarily be decided on evidence, unless the facts disclosed in the pleading clearly prove that the suit is not maintainable. In exceptional cases recourse may be taken under section 151 of the Code of Civil Procedure. On the admitted facts appearing from the record itself, learned Advocate for the plaintiff-opposite parties were unable to show that all or any of this averments in the plaint disclose any cause of action giving rise to a triable issue. In our opinion, the trial court failed to perform it’s duty and overlooked this fatal defect. Since the plaint suffers from fatal defect, the continuance of such a suit tantamount to licensing a frivolous and vexatious litigation. This cannot be permitted as per law. In such a factual situation, in our considered opinion, the court below has fallen into an error of law resulting in an error in his decision occasioning failure of justice in rejecting the application under Order 7 Rule 11 of the Code of Civil Procedure and as such the impugned order is liable to be set aside. In the result, the Rule is made absolute. . . . (14 to 19, 26 to 29)

Constitution of Bangladesh, 1972

Article 111

Question which in the present plaint is now raising had already been considered and decided in the earlier suit once for all and as such we hold that there was no cause of action for instituting the present suit. The decree passed by the Appellate Division is the law of the land. Article 111 of our constitution provides that the law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either Division of the Supreme Court shall be binding on all courts subordinate to it.  Since the judgment and decree passed in the earlier suit was affirmed by the Appellate Division the present suit cannot be maintainable in view of the fact that as the suit is barred by law and law declared by the Appellate Division in the judgment passed in Civil Petition for Leave to Appeal No. 1413 of 2002 is to be followed. ...(23 to 25)

Islami Bank Bangladesh Vs. Abdul Jalil 53 DLR (2001)-29; Abdul Jalil and others Vs. Islaimi Bank 53 DLR (AD) (2001)-12; Shahjahan Siraj (Md) Vs. Md. Rafique Quoraishi and others 19 BLC (AD)-143; Abdul Jalil and others Vs. Islami Bank Bangladesh Ltd. and others 64 LDR (AD) 107; Sreemati Pushpa Rani Das and another Vs. A.K.M Habibur Rahman and others 13 BLD (AD)-217; Md. Mahbubul Haque Vs. Md. A. Kader Monshi 8 BLT (AD)-177 and Burmah Eastern Ltd. Vs. Burmah Eastern Employees Union 18 DLR (Dhaka)-709 ref.

Mr. Syed Mokaddas Ali, Advocate

- - - For the petitioner

Mr. Moin Uddin, Advocate with

Mr. Md. Kobad Hossain, Advocate

Mr. Abul Hossain, Advocate

- - -For the opposite parties

JUDGMENT

Md. Ashraful Kamal, J: This Rule was issued calling upon the opposite parties to show cause as to why the order dated 13.10.2009 passed by the learned Joint District Judge, Court No. 3, Dhaka in Title Suit No. 164 of 2007 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.             Brief facts, necessary for the disposal of this Rule, are as follows;

2(a).    Opposite party No.1 as plaintiff had filed a Title Suit being No. 164 of 2007 in the Court of Joint District Judge, Court No.3, Dhaka for a declaration of title in respect of ‘ka’ schedule property to the plaint and recovery of khas possession with cancellation of registered sale deed dated 30.10.2005.

2(b).    The facts of the case of the plaintiff-opposite party No.1 are that the government of the then East Pakistan allotted the property in question to one Md. Hanif Bhuiyan vide  registered deed No. 4015 dated 27.06.1957. Thereafter, Hanif Bhuiyan sold the property to the plaintiff’s mother Mrs. Firoza Begum vide registered sale deed No. 796 dated 11.02.1964. By constructing two building thereon Mrs. Firoja Begum had been living there with her family members.

2(c).     On 15.05.1992 mother of the plaintiffs made an oral gift in respect of the property in question in favour of the plaintiff and handed over the possession. In such way the plaintiff has been owing and possessing the suit property.

2(d).    The plaintiff’s 3(three) sisters, (the defendant Nos. 2-4 to the plaint) in collusion with other brothers of the plaintiff by forging the signature of their mother sworn an affidavit on 29.12.1992 affirming the oral heba dated 17.09.1992 in favour of the said 3 sisters keeping the plaintiff in dark. Thereafter, the defendant No. 2-4 filed Title Suit No. 215 of 1996 in the Court of 1st Assistant Judge, Dhaka against the plaintiff and his brother, the defendant No.5 for evicting them from the suit property and by practicing fraud they obtained ex-parte judgment and decree on 23.06.1999. Against the said ex-parte judgment and decree dated 23.06.1999, the defendant No.1 of the said suit and the defendant No.5 of the present suit filed an application under Order IX, rule 13 of the Code of Civil Procedure for setting aside the said ex-parte decree whereupon Miscellaneous Case No. 4 of 2000 was started.

2(e).     In the meantime after obtaining the ex-parte decree the plaintiffs of that suit filed Title Execution Case No. 4 of 2000 for evicting the defendants of the said suit. Thereafter, the defendant No.5 of the present suit filed an application in the Title Execution Case No.4 of 2000 for staying the proceeding of the title execution case till hearing of the Miscellaneous Case No. 4 of 2000, which was rejected on 30.10.2003. Against that order dated 30.10.2003 passed by the learned Assistant Judge, Narayangonj, the defendant No.5 of the present suit filed Civil Revision No. 4754 of 2006 before this Division.

2(f).     Although, the defendant No. 2-4 of the present suit had no legal title and possession in the suit property, but they transferred the same along with ‘Kha’ scheduled property illigally in favour of the defendant No.1 vide registered sale deed No. 8864 dated 30.10.2005. The cause of action of the present suit arose when the defendant Nos. 2-4 evicted the plaintiff illegally from the suit property. Hence; the suit.

2(g).    The petitioner as defendant No.1 entered appearance and contested the suit by filing an application under Order VII, Rule 11 of the Code of Civil Procedure for rejection of plaint. Upon hearing of the said application for rejection of plaint, the court below rejected the same on 13.10.2009.

2(h).    Being aggrieved by the said order dated 13.10.2009 passed by the learned Joint District Judge, Court No. 3, Dhaka in Title Suit No. 164 of 2007, the petitioner preferred this revisional application and obtained the present Rule.

3.             Mr. Syed Mokaddas Ali, the learned Advocate appearing for the petitioner submits that the plaintiff stated in the plaint about the ex-parte decree dated 23.06.1999 passed in Title Suit No. 127 of 1997 but with a malafide intention he has suppressed the fact that in Civil Revision No. 3834 of 2001 the High Court Division affirmed the said ex-parte decree dated 23.06.1999 which was further affirmed by the Appellate Division in C.P.L.A No. 1413 of 2002. He also submits that the ex-parte decree dated 23.06.1999 passed in Title Suit No. 127 of 1999 reached its finality when it was affirmed by the Appellate Division and hence the suit is barred by the doctrine of res-judicata and Mr. Mokaddas finally submits that the suit is barred by law in view of the facts that the judgment and decree passed in the earlier suit were affirmed by the Appellate Division as such the present suit cannot be maintainable. He referred some decisions namely Islami Bank Bangladesh Vs. Abdul Jalil reported in 53DLR(2001)-29 and Abdul Jalil and others Vs. Islami Bank reported in 53DLR(AD)(2001)-12.

4.             Mr. Moin Uddin alongwith Mr. Md. Kobad Hossain and Mr. Abul Hossain, the learned Advocates appearing for the opposite party No.1 by filing counter-affidavit submits that the matter relating to the application for rejection of plaint is the matter of evidence which may be proved by examination of witnesses on the dock and that the said matter do not come under the purview of Order VII Rule 11 of the Code of Civil Procedure and as such the court below rightly rejected the application for rejection of plaint.

5.             He further submits that the court below did not commit any illegality or that the order passed by the court below does not suffer from any infirmity of law. He also submits that the summon-notices of the Title Suit No. 127 of 1997 were not served upon the defendants and against the ex-parte decree the defendant No.1 of the said suit as petitioner filed Miscellaneous Case No. 4 of 2000.

6.             He also submits that there was no decree in the said suit but on the strength of the decree the opposite party No.2-4 went to possession of the suit land and the present opposite party No.1 was dispossessed. He further submits that the name and character are different from each other and parties are also different, thus the present suit does not hit by resjudicata or any other law and as such the plaint of Title Suit No. 64 of 2007 does not come under the purview of Order VII Rule 11 of the Code of Civil Procedure and he finally submits that the learned Court below rightly rejected the application for rejection of plaint and as such the present rule is liable to be discharged with cost.

7.             In support of his submissions he referred some decisions namely Shahjahan Siraj (Md) Vs. Md. Rafique Quoraishi and others reported in 19 BLC (AD)-143,  Abdul Jalil and others Vs. Islami Bank Bangladesh Ltd. and others reported in 64 DLR (AD) 107, Sreemati Pushpa Rani Das and another Vs. A.K.M. Habibur Rahman and others reported in 13 BLD (AD)-217 and Md. Mahbubul Haque Vs. Md. A. Kader Monshi reported in 8 BLT (AD)-177.

8.             We have gone through the revisional application alongwith annexures therein and the counter-affidavit filed by the opposite party No.1. We have also considered the submissions made by the learned Advocates for the petitioner and the opposite party No.1.

9.             Order VII rule 11 describes the procedure for rejection of plaint. It is necessary to quote Order VII rule 11 of the Code of Civil Procedure which runs as follows:-

“11. 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.

[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].

[(e) where any of the provisions of rule 9 (1A) is not complied with and the plaintiff on being required by the Court to comply therewith within a time to be fixed by the Court, fails to do so.]

10.         On a plain reading of the aforesaid rule it is evident that the plaint shall be rejected on the grounds specified above.

11.         For deciding an application under Order 7 Rule 11 of the Code of Civil Procedure, the averments in the plaint need to be looked into.

12.         The trial Court can exercise the power under Order 7 Rule 11 of the Code of Civil Procedure at any stage of the suit before registering the plaint or after issuing summons to the defendants at any time before the conclusion of the trial.

13.         For the purpose of deciding an application under clauses (a) and (b) of Order 7 Rule 11 of the Code, the averments in the plaint are germane; the pleas taken by the defendants in the written statement would be wholly irrelevant.

14.         The basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint. If on a meaningful and formal reading of the plaint, it appears to be manifestly fictitious and meritless in the sense of not disclosing a clear right to sue, the Court should exercise the power under Order 7 Rule 11 of the Code.

15.         The real object of the Order 7 Rule 11 of the Code of Civil Procedure is to keep out of Courts irresponsible suits.  If it is found that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised.

16.         Question is whether a real cause of action has been set out in the plaint. Clever drafting creating illusions are not permitted in law and a clear right to sue should be shown in the plaint.

17.         The Court should always be vigilant for scrutinizing the pleadings and materials placed before it to ascertain whether the litigation is frivolous or maintainable at all. The Court must exercise its powers at every stage in order to nip the frivolous cases in the bud. 

18.         It is well settled now that a plaint may be rejected under Order 7 Rule 11 of the Code of Civil Procedure merely on a plain reading of the plaint but in exceptional circumstances the Court may invoke it’s inherent jurisdiction and can through the plaint out in limine.

19.         It is also well settled that the plea of implied bar should ordinarily be decided on evidence, unless the facts disclosed in the pleading clearly prove that the suit is not maintainable. In exceptional cases recourse may be taken under section 151 of the Code of Civil Procedure.

20.         In the case of Burmah Eastern Ltd. Vs. Burmah Eastern Employees Union reported in 18 DLR (Dhaka)-709 Mr. Justice Murshed held that apart from the question of Order 7 Rule 11 of the Code of Civil Procedure, the Court can also exercise its inherent power in order to stop the harassment of the other party.

         Justice Murshed has held as follows;

“The principles involved as twofold: in the first place, it contemplates that a still born suit should be properly buried, at its inception, so that no further time is consumed on a fruitless litigation. Secondly, it gives plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may found a properly constituted case.

Order 7 Rule 11 of the Code, as quoted above enumerates certain categories under which the Court is called upon to reject a plaint, but, it is obvious that they are not exhaustive. It appears from the language of rule 11 of Order 7 that it requires that an incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what is bound to collapse as not being permitted by law.”

21.         In the case of Abdul Jalil and others Vs. Islamic Bank Bangladesh Ltd. and others reported in 53 DLR(AD)(2001)-12, it was held that;

“ It is well settled that where a plaint cannot be rejected under Order rule 11 of the Code of Civil Procedure the court may invoke its inherent jurisdiction and reject the plaint taking recourse to section 151 of the Code of Civil Procedure.”

         It was further held that in the said case

“As the ultimate result of the suit is as clear as day light such a suit should be burried at its inception so that no further time is consumed in a fruitless litigation.”

22.         Coming to the case at hand, the defendants No. 2-4 after getting oral gift of their mother filed Title Suit No. 215 of 1996 in the Court of 1st Assistant Judge, Dhaka for declaration of title and recovery of khas possession of the suit property against the defendant No.5 of present suit making him defendant No.1 and making defendant No.2, the plaintiff of the present suit. Subsequently, the suit was renumbered as Title Suit No. 127 of 1997 in the Court of Assistant Judge, Nawabganj, Dhaka on transfer which was decreed ex-parte on 23.06.1999 in favour of the plaintiffs of the said suit declaring title of the suit property and also decreed for recovery of khas possession of the suit property. Against the aforesaid ex-parte decree, the plaintiff of the present suit as defendant No.2 filed an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree dated 23.06.1999 of Title Suit No. 127 of 1997 whereupon the Miscellaneous Case No. 35 of 1999 was started. The petitioner of the aforesaid Miscellaneous Case that is, the plaintiff also filed Title Appeal No. 769 of 1999 in the Court of District Judge, Dhaka against the said ex-parte decree which was transferred to the Court of Subordinate Judge, Court No.3, Dhaka and after hearing the said appeal was allowed on 29.03.2001 setting aside the ex-parte decree and the suit was sent on remand to the trial court for hearing. Against the aforesaid judgment and order of the appellate court, the respondents of that appeal filed civil revision No. 3834 of 2001 before this Division and obtained Rule. After hearing the said Civil Revision No. 3834 of 2001 the Rule was made absolute on 28.02.2002 setting aside the judgment and decree of the appellate court and restored the ex-parte decree dated 23.06.1999 passed in Title Suit No. 127 of 1999. Against the judgment and order passed in Civil Revision No. 3834 of 2001 the present plaintiff filed Civil Petition for Leave to Appeal No. 1413 of 2002 before the Appellate Division which was dismissed on 18.01.2003.   

23.         We carefully scrutinized the plaints of both the suits as well as the judgments passed by the Court’s up to the Appellate Division. We are of the view that question which in the present plaint is now raising had already been considered and decided in the earlier suit once and for all and as such we hold that there was no cause of action for instituting the present suit.

24.         The decree passed by the Appellate Division is the law of the land. Article 111 of our constitution provides that the law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either Division of the Supreme Court shall be binding on all courts subordinate to it.

25.         Since the judgment and decree passed by the earlier suit was affirmed by the Appellate Division the present suit cannot be maintainable in view of the fact that as the suit is barred by law and law declared by the Appellate Division in the judgment passed in Civil Petition for Leave to Appeal No. 1413 of 2002.

26.         On the admitted facts appearing from the record itself, learned Advocate for the plaintiff-opposite parties were unable to show that all or any of this averments in the plaint disclose any cause of action giving rise to a triable issue. In our opinion, the trial court failed to perform it’s duty and overlooked this fatal defect.

27.         Since the plaint suffers from this fatal defect, the continuance of such a suit tantamount to licensing a frivolous and vexatious litigation. This cannot be permitted as per law.

28.         In such a factual situation, in our considered opinion, the court below has fallen into an error of law resulting in an error in his decision occasioning failure of justice in rejecting the application under Order 7 rule 11 of the Code of Civil Procedure and as such the impugned order is liable to be set aside. If the present suit is allowed to proceed further it would consume the time, energy and money of all the parties concerned. Therefore, this court cannot allow such frivolous malafide proceedings to continue.

29.         In the result, the Rule is made absolute. The judgment and order dated 13.10.2009 passed by the learned Joint District Judge, Court No. 3,  Dhaka in Title Suit No. 164 of 2007 holding the suit to be maintainable is set aside and  the plaint is rejected under Order VII Rule 11 of the Code of Civil Procedure.

30.         There is no order as to costs.

31.       Communicate this judgment and order at once.

         Ed.