Dr. Farzana Ahmed Vs. Roksana Ahmed and others [4 LNJ (2015) 385]

Case No: Civil Revision No. 4281 of 2006

Court: High Court Division,,

Advocate: Mr. M. I. Farooqui,Mr. Golam Arshad,,

Citation: 4 LNJ (2015) 385

Case Year: 2015

Appellant: Dr. Farzana Ahmed

Respondent: Roksana Ahmed and others

Subject: Principles of Natural Justice,

Delivery Date: 2010-06-09


HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Sheikh Abdul Awal, J,
And
M. Moazzam Husain, J.

Judgment on
9.6.2010
}
}
}
}
}
Dr. Farzana Ahmed
...Defendant No. 1, Petitioner
-Versus-
Roksana Ahmed and others
. . .Plaintiff-opposite parties.
 
 
Code of Civil Procedure (V of 1908)
Order I, Rule 10(1)(2)
It appears that the defendant No.19,  Haji Mohammad Sanaullah was made party as added defendant No.19 pursuant to an application filed by the plaintiff and then the said added defendant No.19 appeared in the suit and filed an application on 10.10.2005 for striking out of his name from the plaint and also for striking out the schedule-3 of the suit property as described in the plaint. On 24.01.2006 the present defendant-Petitioner filed an application for adjournment of the suit for supplying a copy of the said application dated 10.10.2005 and also for filing written objection and the trial Court allowed the application of the defendant No.1 but then on that date by the self-same order the trial Court without hearing the contesting defendant No.1 allowed the said application dated 10.10.2005 by the impugned order.
It appears that the first part of the order is totally inconsistent and contrary to the last part of the impugned order. The Court cannot grant relief against the defendant or plaintiff either generally or otherwise which is inconsistent or contrary to its order. Granting of such relief against the defendant or plaintiff without affording opportunity to contest is not only violative of the principle of natural justice but also against judicial norms. The learned Joint District Judge seriously erred in law in passing the impugned order without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the subject and the same has resulted in an error in the impugned decision occasioning failure of Justice. The impugned order insofar as it relates to allowing the application dated 10.10.2005 filed by the added defendant No. 9 is set aside. ...(12 and 15 to 18)

Mr. Golam Arshad, Advocate
. . . For the petitioner

Mr. M. I. Farooqui with
Ms. Razia Sultna, Advocates
.... For the opposite No.1
 
Civil Revision No. 4281 of 2006
 
JUDGMENT
Sheikh Abdul Awal, J:
 
By this Rule the opposite parties were called upon to show cause as to why the impugned order dated 24.01.2006 passed by the learned Joint District Judge, 5th Court, Dhaka in Title Suit No.209 of 2003 allowing the petition dated 10.10.2005 striking out the name of the defendant No.19 and also striking out the schedule No.3 of the suit property from the plaint should not be set-aside.

The facts  of the case as  necessary for disposal of the Rule are that the opposite party No.1 as plaintiff filed a suit for partition and accounts in respect of the income of schedule-3 property in the Court of the then Sub-Judge, Dhaka on the averments that the plaintiff  and her sisters and the defendants have been owing and possessing of the suit property in ejmali; that the properties have not been partitioned  amongst  the plaintiff and the defendants and for the various reasons it is very difficult to possess the suit property in ejmali; that since the properties have not been partitioned by mets and bounds and it is very difficult for development of any part of the same  the plaintiff has requested the defendant No.1 for amicably settle the partition of the suit property but the defendant No.1 deliberately on pretext refused to do the same and hence the suit.

The petitioner No.1 as defendant No.1 appeared in the suit and filled written statement denying all the material allegations of the plaint contending, inter-alia, that the suit is not maintainable in its present form and manner inasmuch as all the parties are not added in the suit. Thereafter, the plaintiff filed an application under Order XI Rule 11 of the Code of Civil Procedure praying  to direct the defendant to supply the name of the necessary parties and thereupon, as per direction of the Court  the defendant No. 1  supplied the name of one Haji Mohammad Sanaullah to be added as necessary party in the suit.       The learned trial Judge on consideration of the materials on record by his order dated 15.3.1999 allowed the prayer of the plaintiff holding that the said Haji Mohammad Sanaullah is not a necessary party in the suit. Against which  the defendant No. 1 unsuccessfully moved a revisional application being Civil Revision No 1473 of 1999  before this Court and then he  went up to the Appellate Division and during pendency of the C.P.L.A. No.698 of 2002 before the Appellate Division the plaintiff of the suit filed an application for impleading the said Haji Mohammad Sanaullah as defendant in the suit and the learned trial Judge by order dated 24.10.2002 allowed the said application,  in this way the said Haji Mohammad Sanaullah has been added as defendant No.19 in the suit and consequently, the defendant-petitioner did not proceed with the C.P.L.A. No.698 of 2002 before the Appellate Division.

In usual course the summon/s was served upon the added defendant No.19, Haji Mohammad Sanaullah and thereafter,  he appeared in the suit and  on 10.10.2005 filed an application for striking out of his name from the suit and also striking out of the schedule property-3 from the suit property as described in the plaint.

The learned Joint District Judge by his order dated 10.10.2005 fixed the matter for hearing on 17.11.2005 with a direction to serve the copy of the application upon the parties. On 22.11.2006 the defendant No.19 served a copy of the application dated 10.10.2003 to the learned Advocate of the plaintiff although the defendant No.19 did not serve any copy upon the contesting defendant No.1 and thereupon, on 24.01.2006   the defendant No.1 filed an application praying for a direction to the defendant No.19 to serve a copy of the application dated 10.10.2005 to him and also for adjournment the hearing of the application dated 10.10.2005.

The learned Joint District Judge upon hearing the application of the defendant no. 1 (petitioner) was pleased to allow the said  application as prayed for but subsequently, on the same day he took up the petition dated 10.10.2005 for hearing and upon hearing the learned Advocate for the added defendant No.19 allowed the petition dated 10.10.2005 filed by the defendant No.19 striking out of the name of the defendant No.19 from the plaint and also striking out  of  the schedule property-3 of the suit property as described in the plaint.

Being aggrieved by the aforesaid order dated 24.01.2006 the present defendant-petitioner has approached this Court in an application under section 115(1) of the Code of Civil Procedure and obtained the present Rule.

Mr. Golam Arshad, the learned Advocate appearing for the petitioner submits that admittedly the plaintiff and defendant No.1-4 transferred the schedule property-3 to the added defendant No.19 Haji Mohammad Sanaullah resulting  he became  a co-sharer to the suit property and in a suit for partition it is the mandatory provision of law that all  the ejmali properties in between the co-sharers should be taken into hotchpot and since the  schedule-3 of the plaint has not yet been partitioned by metes and bounds with the  defendant No.19  the learned Joint District Judge ought to have rejected the application for striking out the name of  the added defendant No.19 Haji Mohammad Sanaullah from the suit and also for striking out of the schedule property-3 from the suit property.

Mr. Golam Arshad, the learned Advocate in the course of argument upon referring to the application dated 24.01.2006 along with impugned order dated 24.01.2006 submits that on 24.01.2006 the present petitioner as defendant No.1 filed an application praying for a direction to supply the copy of the application filed by the defendant No.19 and also for adjournment for submitting written objection and the learned Joint District Judge, 5th Court, Dhaka upon hearing the application allowed the application as prayed for but the reasons best known to the learned trial Judge as to why on that date few minutes after he took up the application dated 10.10.2005 filed by the added defendant No.19 for hearing in absence of the defendant No.1 and mechanically allowed the same in a summary manner and as such the impugned order  is not only cryptic in nature also contrary to the first part of the impugned  order which resulted  in the  failure of justice. The learned Advocate finally criticized the impugned order in submitting that in the facts and circumstances of the case the impugned order is perverse being contrary to law as well as the materials on record and as such the same is liable to be set-aside.

On the other hand, Mr. M. I, Farooqui, the learned Advocate appearing for the plaintiff-opposite party No.1 by filing counter affidavit supports the impugned 0rder No.104 dated 24.01.2006 which was according to him just, correct and proper. The learned Advocate in the course of argument upon placing the counter affidavit submits that the plaintiff as well as defendant Nos.1-4 transferred their entire shares of schedule No. 3 of the suit property and in that view of the matter the defendant No.19 is not a necessary party in the suit whatsoever. Mr. Farooqui, the learned Advocate next submits that in the facts and circumstances of the case the impugned order is based on correct evaluation of facts and materials on record   inasmuch as admittedly the plaintiff and defendant Nos.1-4 transferred their entire shares of the schedule property-3 to the added defendant No.19 Haji Mohammad Sanaullah. He further submits that the learned trial Judge after allowing the adjournment application of the defendant-petitioner took up the application dated 10.10.2005 for striking out the name of the defendant No.19 from the plaint, which is a mere omission or irregularity, not an illegality and the law is well settled that mere omission or mere irregularity will not be a ground for interference when the order is otherwise supportable on merit.

Mr. M. I, Farooqui, finally submits that the order striking out the name of the defendant No.19 from the plaint has not occasioned any failure of justice inasmuch as in the facts and circumstances of the case the added defendant No. 19 is not a necessary party in the suit whatsoever and as such the question of interference by this Court sitting under revisional jurisdiction does not arise at all.

Perused the revisional application, counter affidavit along with Annexures as filed thereto and considered the submissions of the learned Advocates of both the parties. It appears from the record that the defendant No.19 Haji Mohammad Sanaullah was made party as added defendant No.19 pursuant to an application filed by the plaintiff on 24.10.2002 and thereafter, the said added defendant No.19 appeared in the suit and filed an application for striking out of  his name  from the plaint and also for striking out the schedule-3 of the suit property as described in the plaint  and the trial Judge on receipt of the application ordered to supply a copy of the same upon the parties and fixed the next date of the suit on 27.11.2005 and on that date the added defendant No.19 filed hazira and the defendant No. 1  by filing application prayed for time  which was allowed and thereafter, on 24.01.2006 the present defendant-petitioner filed an application for adjournment of the case on the ground for supplying a copy of the application dated 10.10.2005  to him and also for filing written objection and the trial Court below upon hearing the defendant No. 1 allowed the application of the defendant No.1. Subsequently, on that date  by the self-same order the trial Court below  without hearing the contesting defendant No. 1 allowed the application dated 10.10.2005  filed by the added  defendant No.19 for striking out the  name of the added defendant No.19 and also for striking out the schedule property-3 from the suit properties  as described in the plaint.
Now, the only question for consideration is, whether the learned Joint District Judge has committed any illegality in passing the impugned order resulting in an error in the decision occasioning failure of justice.  To resolve this dispute we feel it necessary to quote hereunder the relevant portion of the application filed by the defendant No.1 on 24.01.2006, which reads as follows:“

১। অদ্য অত্রমোকদ্দমাটি দঃ শুঃ জন্য দিন ধার্য্য আছে বটে।
২। ১ নং বিবাদী অত্র মোকদ্দমা ১৯ নং বিবাদী কর্তৃক দাখিলকৃত কপি প্রাপ্ত হয় নাই। ১ নং বিবাদীকে দরখাসেত্মর কপি দেওয়া হয় নাই। তদাবস্থায় ১ নং বিবাদীর প্রতি দরখাসেত্মর কপি প্রদান করা আবশ্যক। কারন- ১ নং বিবাদী অত্র মোকদ্দমায় প্রতিদ্বন্দিকারী বিবাদী। ফলে ১ নং বিবাদীকে কপি দাখিল সাপেক্ষে মোকদ্দমা দরখাসত্ম শুনানী মুলতবী করিয়া আপত্তি দাখিলের জন্য সময় প্রার্থনা করিয়াছে। মজ্ঞুর করা হউক।
 
The learned Joint District Judge upon hearing the application by its 0rder No.104 dated 24.01.2006 allowed the application stating as follows:“

১৯ নং বিবাদী পক্ষ হাজিরা দাখিল করিয়াছেন। বাদী পক্ষ হাজিরা দাখিল করিয়াছেন। ১ নং বিবাদীপক্ষ এক দরখাসত্ম দাখিল করতঃ দরখাসত্ম বর্নিত কারনে সময় প্রার্থনা করিয়াছে। প্রার্থনা মঞ্জুর করা হইল।

From the above, it is apparent that the prayer of the defendant No.1 was allowed but subsequently, the reasons best known to the learned Joint District Judge that as to why on the same date by the self-same order in absence of the present defendant-petitioner allowed the application  dated 10.10.2005 filed by the added defendant No.19 for striking out the name of the added defendant No.19   from the plaint of the suit as well as striking out of his property namely, schedule property-3 as described in the plaint  of the suit.

On the face of the impugned order, it appears that the first part of the order is totally   inconsistent and contrary with the last part of the impugned order. Therefore, we are inclined to hold that the learned Joint District Judge seriously erred in law in passing the impugned order without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the subject and the same has resulted in an error in the impugned decision occasioning failure of justice.

The Court cannot grant relief against the defendant or plaintiff either generally or otherwise which is inconsistent or contrary to its order. Granting of such relief against the defendant or plaintiff without affording opportunity to contest, is not only violative of the principle of natural justice but also against judicial norms. Mr. M. I, Farooqui,  is not correct in submitting that the order striking out the name of the defendant No.19 from the plaint as well as striking out the property namely schedule property-3 as described in the plaint  of the suit has not occasioned any failure of justice.

In the result, the Rule is made absolute without any order as to costs. The impugned order so far it relates to allowing the application dated 10.10.2005 filed by the added defendant No.19 is set-aside.

Since the matter has been dragging over a period of 10 (ten) years the trial Court is directed to expedite the trial of the suit in accordance with law.

Communicate the order at once.

Ed.