Habibur Rahman and others Vs. Andadul Huq alias Emdadul Huq and others 2017 (1) LNJ 212

Case No: Civil Revision No. 1869 of 2014

Judge: A. K. M. Shahidul Huq. J.

Court: High Court Division,

Advocate: Mr. Abdul Barek Chowdhury, Md. Delwar Hossain,,

Citation: 2017 (1) LNJ 212

Case Year: 2016

Appellant: Habibur Rahman and others

Respondent: Andadul Huq alias Emdadul Huq and others

Subject: Civil Law

Delivery Date: 2017-04-12

HIGH COURT DIVISION

(CIVIL REVISIONAL  JURISDICTION)

 

Farid Ahmed, J

And

A. K. M. Shahidul Huq, J

Judgment on

23.08.2016

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Habibur Rahman and others

. . . Petitioners

-Versus-

Andadul Huq alias Emdadul Huq and others

...Opposite parties

Code of Civil Procedure (V of 1908)

Order 1 Rule 10(2)

The learned Joint District Judge failed  to consider the plaintiffs No. 10-15 are the legal heirs of Daimuddin, the present petitioners are also the legal heirs of the said Daimuddin. The learned Trial Judge has totally misconceived the whole case and most illegally rejected the application for addition of parties without considering the facts that the petitioners are legal heirs of Daimuddin and non consideration of that vital fact of the learned Judge committed an error of law resulting in an error in the decision occasioning failure of justice. Consequently, the application for addition of party is hereby allowed.   ...(16, 17 and 21)

Anil Kumar Singh Vs. Shivnath Mishra 3 S.C.C. Page 149; Amal Kumar Vs. Mashihur 30 DLR (SC) Page-244 and Mahaluxmi Bank Ltd. Vs. Kamakhyalal AIR 1958 Asam Page-56, ref.

Mr. Abdul Barek Chowdhury with 

Mr. Md. Delwar Hossain, Advocates

. . . For the petitioners

No one appears.

. . . For the opposite parties

JUDGMENT

Mr. A.K.M. Shahidul Huq, J: Rejection of the  application  filed by the petitioners  for addition of parties has been challenged by the petitioner by invoking the Revisional Jurisdiction of this Hon’ble Court  as laid down in  Section 115(1) of the Code of Civil Procedure in which  a Division Bench of this Hon’ble Court on perusal of the impugned order dated 9.1.2014 of the learned Joint District Judge, 3rd Court, Dhaka passed in Title Suit No. 343 of 2013 rejecting the application filed by the petitioner for addition of parties the Revisional Application  filed under  Section 115(1) of the Code of Civil Procedure  and on hearing the submissions of the learned Advocate for the petitioner  was pleased to issue  a rule calling upon the opposite parties to show cause as to why  the order dated 09.01.2014 passed by the learned Joint District Judge, 3rd Court, Dhaka in  Title Suit No. 343 of 2013 rejecting the application filed by the petitioner for addition of parties as co-plaintiffs shall not be set aside and/ or such other or further order or orders as to this court may seem fit and proper.

2.            The short facts for disposal of the rule is that to disposal of the rule is that the  opposite party Nos. 1-15 as plaintiffs filed Title Suit No. 260 of 2013 in the 1st court of the Joint District Judge, Dhaka against the opposite party No. 16 for declaration to the effect that they are in 16 annas owners of  the ‘Ka’ schedule  property and that S.A., R.S. and City Jarip Khatians are wrong and not  binding upon the plaintiff. The short facts for disposal of the rule is that the suit land belonged to Ala Baksh by way of C.S. recorded tenant and purchased  said Ala Baksh died leaving four sons and four daughters and wife. The heirs of Ala Baksh made settlement amongst themselves and four daughters namely- Azor Bibi, Salatunnessa, Sahitunnessa, Amirunnessa, wife Saburan Bibi got plot Nos. 2771, are .3150 acres, 2776 acres, .0150 acres, plot No. 2764, an area of .0150 acres and  2767, are .08 acres in total 0.4250 acres and they transferred the same on 16.11.1947 in favour of Daimuddin Mozammal Huq, Emdadul Huq, Sirajul Huq, Nurul Huq. Subsequently Abeda Khatun and Rizia  Khatun as plaintiff filed Title Suit No. 3554 on 20.05.1954 in the 1st Court of Joint Distruct Judge, Dhaka and the said suit was transferred to the 5th Court of Joint District Judge, Dhaka and renumbered as Title Suit No. 04 of 1957 and in that suit the present plaintiff No. 1 was the defendant No. 40, the predecessor of the plaintiff Nos. 2-6 Sirajul Huq was the defendant No. 38, the predecessor of the plaintiff Nos. 7-9 Nurul Huq was the defendant No. 39, the predecessor of the plaintiff Nos. 10-16, Daimuddin was the defendant No. 36. The said suit was decreed on compromise on 13.05.1958 and final decree was drawn on 30.05.1967. In the said Solenama, the defendant Nos. 36-40 got a compact saham on the b asis of the deed dated 16.11.1947 being deed No. 6131. Thereafter, Mozammal Huq died leaving four brothers namely- Daimuddin, Emdadul Huq, Sirajul HJuq and Nurul Huq. Thereafter, Sirajul Huq died leaving the plaintiff Nos. 2-6. Nurul Huq died leaving the plaintiff Nos. 7-9. Daimuddin died leaving the plaintiff Nos. 10-16 and thus the plaintiff became the owner of the suit property and they have been in peaceful possession of the suit property. The defendant claimed the suit property on July 2012 and came to learn that the suit property has been wrongly recorded in the name of the defendant along with others in the S.A. R.S. and City Jarip Khatian and as such the plaintiffs have been compelled to file the present suit for declaration against the defendant.

3.            In the suit stating inter alia that Daimuddin died leaving the plaintiff Nos. 10-15 along with one daughter   namely- Rahija Begum and said Rahija Begum while had been owning and possessing her share in the suit property died leaving the petitioners as her legal heirs and successors and they have been in possession along with the plaintiff and as such the petitioners are necessary parties in the suit.

4.            The application for addition of party was ultimately heard on 9.01.2014 and the learned Joint District Judge, 3rd Court, Dhaka has been pleased to reject the application for addition of party on misconception of law.

5.            Mr. Abdul Barek Chowdhury, the learned Advocate appearing for the petitioners  submits that  the plaintiff Nos. 10-15 are the legal heirs of late Daimuddin. The present petitioners are also the heirs of late Daimuddin and as such they are necessary party to be added as co-plaintiffs, but the learned Trial Court totally misconceived the whole case and illegally rejected the application for addition of party without considering the fact that the petitioners are the legal heirs of Daimuddin and as such committed an error of law resulting in the decision occasioning failure of justice.

6.            The learned Advocate for the petitioners further submits that the relief prayed for by the plaintiff Nos. 10-16 and the relief of the petitioners are same and there is no clash between them and the petitioners as legal heirs of Daimuddin are necessary party and there is no denial that the petitioners are not the legal heirs of Daimuddin and as such the reason that has been shown by the learned Joint District Judge is not cogent and as such committed an error of law resulting in the decision occasioning failure of justice.

7.            He also submits that unless the petitioners are made party in the suit as co-plaintiff, the multiplicity of suit and litigation will arise and as such the order dated 09.01.2014 passed by the learned Joint District Judge, 3rd Court, Dhaka is under misconception of law resulting in the decision occasioning failure of justice.

8.            The learned Advocate for the petitioners next submits that the plaintiff Nos. 10-15 are the legal heirs of late Daimuddin. The present petitioners are also the heirs of late Daimuddin as such they are necessary party to be added as co-plaintiffs, but the learned Trial Court totally misconceived the whole case and illegally rejected the application for addition of party without considering the fact that the petitioners are the legal heirs of Daimuddin and as such committed an error of law resulting in the decision occasioning failure of justice.

9.            The learned Advocate for the petitioners also submits that  the relief prayed for by the plaintiff Nos. 10-16 and the relief of the petitioners are same and there is no clash between  them and the petitioners as legal heirs of Daimuddin are necessary party and there is no denial t6hat the petitioners are not the legal heirs of Daimuddin and as such the reason that has been shown by the learned Joint District Judge is not cogent and as such committed an error  of law resulting in the decision  occasioning failure of justice.

10.        The learned Advocate for the petitioners lastly submits that  unless the petitioners are  made party in the suit as co-plaintiff, the multiplicity of suit and litigation will arise and as such the order dated 9.01.2014 passed by the learned Joint District Judge, 3rd Court, Dhaka is under misconception of law resulting in the decision occasioning failure of justice.

11.        We have heard the learned Advocate, perused the impugned order dated 09.01.2014 passed by the learned Joint District Judge, Dhaka in the Title Suit No. 343 of 2013 rejecting the application filed by the petitioners  for addition of parties  as co- plaintiffs ,the Revisional Application  filed under  Section 115(1) of the Code of Civil Procedure also perused the plaint of the Title Suit No. 343 of 2013 of 3rd Court of Joint District Judge Dhaka also  perused the application for addition of parties  as annexed in Revisional Application as Annexure –B, considered the submissions of the learned Advocate appearing for the petitioners in support of the Revisional Application filed Under Section 115(1) of the Code of Civil Procedure in order to  arrive at a proper findings, we are very much tempted to refer the relevant provision of law  as contained in  order 1 Rule 10(2) of the Code of Civil Procedure  where it is stated that :

         “Where a suit  has been instituted the court may at any stage of the proceeding either upon or without any  application of  either parties and on such terms as may appear to the court to justice order that on  upon terms as may appear to the court order that in the said provision of the law  it is stated that “ the presence of such parties  would be necessary in order to enable the court to effectually and completely adjudicating  upon and settle the question infavour in the suit”.

12.        This principal of law has been well settled in the case of the Anil Kumar Singh Vs- Shivnath Mishra  reported in 3 S.C.C. Page149 where it is held that  “ The court may at any stage of the proceedings, either upon or without the application of either party, and on  such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant , be struck out, and that the name of any person who ought to have been  joined, whether  as plaintiff or defendant, or whose  presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit be added”.

13.        On perusal of the impugned order  we find  that the impugned order  has been passed in utter violation  of the settled principles of law  as decided in the case of   Amal Kumar Vs. Mashihur   reported in 30 DLR (SC) Page-244  where it is held that :

“(Order 4, Rule 10(2) of the Code of Civil Procedure empowers the Court to add parties  at any stage of the proceedings, either upon or without application who ought to have  been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved  in the  suit. This power is discretionary. Unless this power is exercised arbitrarily or fancifully it cannot be interfered with under section 115 of the Code of Civil Procedure. Even an improper or wrong exercise of disceretion is not open to revision unless the order is contrary to legal principles governing the exercise of such discretion, or the court has acted perversely”.

14.        We find in the case of  Mahaluxmi Bank Ltd. Vs. Kamakhyalal  reported in  AIR 1958 Asam Page-56 where it is held that-

“The every first issue relates to the  question whether the plaintiff is competent to sue. An objection was taken during the pendency of the suit that the person entitled to sue was one S.K. Dutta, who had the authority  to realize  the dues of the bank. This fact was also admitted by the Manager of the Bank, Ranendra Narayan Purkayastha (P.W.1). The plaintiff was, therefore, called upon to produce in Court the scheme  approved by the High Court of Judicature all bank. From this scheme it is clear that the Sylhet Industrial Bank Ltd. Was amalgamated with the plaintiff  bank on 27.06.1947, and under the terms thereof, the whole of the undertaking  assets, properties and liabilities of the transferor company, the Sylhet Industrial  Bank Ltd, were transferred to and did vest in the said transferee company, the plaintiff Mahaluxmi Bank Ltd. The plaintiff bank was further held entitled to continue legal proceedings instituted  by or against the said transferor company. The transferee company was also authorized  to carry on the business of the transferor company at its existing branches and had also the authority to close down such of the branches of the transferor company, as it considered necessary. The Court sanctioned this scheme  under section 153 of the  Indian Companies Act, by an order dated the 1st  April, 1950. It further ordered that Mr. S.K. Dutta, an Advocate of the Court who was a share-holder of the Sylhet Industrial  Bank Ltd. Prior to its amalgamation, should be in charge of the assets of the said Bank and the books of account relating thereto and realization and disbursement of the said assets according to the scheme of amalgamation sanctioned by the Court on the 25th day of June, 1947. It is, therefore,  contended that the plaintiff was not competent to sue any longer. This contention found favour with the learned Sub-ordinate Judge, who held that it was necessary to make Mr. S.K. Dutta, a party to the suit, in view of the objection to defect of party taken in the course of arguments, the plaintiff, on the 4th of September, 1952, filed an application praying that, if necessary, Mr. dutta may be added as a party to the suit, but the Court refused to accept to the prayer, on the ground that the petition had been filed late. This was not an adequate justification to refuse the prayer, if the court considered that the presence of Mr. Dutta was necessary for a proper adjudication of the suit. There was no question of institution involved so as to affect the defendants prejudicially. It is well established that subject to just equities, a party may be added at any stage of the proceedings.”

15.        In view of the above, it is well established that the subject to just equating a party may be added at any stage of the proceedings.

16.        We have heard the learned  Advocate appearing for the petitioners  while no one appears on behalf of the opposite parties and perused the impugned order dated 09.01.2014 passed in Title Suit No. 343 of 2013 by the learned Joint District Judge, 3rd Court Dhaka rejecting the application for addition parties, we find the learned Joint District Judge failed  to consider the plaintiffs No. 10-15 are the legal hears of  Daimuddin the present petitioner  are also the legal heirs of the said Daimuddin.

17.        The learned Trial Judge we find has totally misconceived  the whole case and most illegally rejected the application for addition of parties  without considering the facts that the petitioners are legal heirs of  Daimuddin  and non consideration that vital fact of the learned Judge committed an error of law  resulting in an error in the decision occasioning failure of justice.

18.        In view of the aforesaid facts and circumstances and the reasons as stated herein before we are of the view that the learned Joint District Judge passed the impugned order based on surmise and conjecture and suffers from serious legal perversity material irregularity and illegality and as such the impugned judgment and order passed by the learned 3rd Joint District Judge, Dhaka is not sustainable  under the  provision of  law as contain in Order 1 Rule 10(2) of the Code of Civil Procedure.

19.        In that view of the matter the impugned judgment and order dated 9.1.2014 passed in Title Suit No. 343 of 2013 rejecting the application for addition of parties is not sustainable in law and the same is liable to be set aside.

20.        In the result the rule is made Absolute without any order as to cost.

21.        Consequently the application for addition of party is hereby allowed.

22.        The order of stay all further proceedings of Title Suit No. 343 of 2013 now pending in the court of learned Joint District Judge, 3rd Court,  Dhaka  is hereby recalled and vacated.

23.        The learned Joint District Judge 3rd Court Dhaka is hereby directed to dispose of  Title suit No. 343 of 2013 expeditiously as far as practicable preferably within four months from the date of receipt of a copy of this judgment positively.

         The office is hereby directed to transmit a copy of this judgment to the concern court forthwith for information and necessary action.

Ed.