Hajee Mohd. Khokon Miah Vs. Md. Aklibur Rahman (Advocate), (Kashefa Hussain, J.)

Case No: Civil Revision No. 4202 of 2016

Judge: S. M. Emdadul Hoque, J And Kashefa Hussain, J

Court: High Court Division,

Advocate: Mr. Mohammad Anwar Hossain with Mr. Nanda Dulal Das, Advocates.,

Citation: 2019(1) LNJ

Case Year: 2017

Appellant: Hajee Mohammad Khokon Miah

Respondent: Md. Aklibur Rahman (Advocate) and others

Subject: Code of Civil Procedure

Delivery Date: 2019-11-27

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

S. M. Emdadul Hoque, J

And

Kashefa Hussain, J

 

Judgment on

25.07.2017

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Hajee Mohammad Khokon Miah

. . Petitioner

-Versus-

Md. Aklibur Rahman (Advocate) and others

. . . Opposite parties

Code of Civil Procedure (V of 1908)

Order 6, Rule 17

By allowing the application of amendment of plaint under Order 6 Rule 17 of the Code of Civil Procedure, the suit actually also has been extended into a suit for specific performance of contract and for the execution of which an execution case is maintainable under the law. It is clear from condition No.1 and 2 of the Solenama and which forms part of the sole Decree that the parties agreed that in the event of failure by the defendant-opposite parties to execute the saf-kabala within 15 days in favour of the plaintiff-petitioner, the plaintiff-petitioner shall be entitled to enforce their right through an order of the court upon filing execution case. But it appears that somehow the court below upon misapplication of mind or whatsoever overlooked these materials factors especially the fact that the suit was eventually also extended and supplemented into a suit for Specific Performance of Contract and the court below wrongly ignored Condition No. 1 and 2 of the solenama upon which the court passed the sole decree and consequently issued an erroneous order. . . . ( 6 ) 

Mr. Mohammad Anwar Hossain with

Mr. Nanda Dulal Das, Advocates.

... For the Petitioner

None Appears

... For the Respondent

JUDGMENT

Kashefa Hussain, J. Rule was issued at the instance of the petitioner in this Civil Revisional Application calling upon the opposite parties to show cause as to why the impugned Order No. 10 dated 27.11.2016 passed by learned Joint District Judge, 1st Court, Comilla in Title Execution Case No. 05 of 2016 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 relevant for disposal of the Rule in short is that the plaintiff-petitioner originally filed Title Suit No. 275 of 2006 in the court of the Sadar Senior Assistant Judge, Comilla against the opposite party No. 01 praying for declaration of Title and confirmation of possession with respect to the suit land mentioned in the schedule of the plaint praying for relief to that effect. During pendency of the suit the parties reached a compromise and in pursuance of the compromise a solenama was filed along with an application for amendment of plaint under order 6 Rule 17 of the Code of Civil Procedure and the Solenama decree was passed on 03.05.2016. The application of amendment of plaint was made for addition to the suit that the title suit No. 275 of 2006 be also turned into a suit for specific performance of contract by incorporation of para 8 (kha)in the relief portion of the plaint along with a payment of Aadvolarem Court fee Condition No. 1 of the Solenama provided that within 15 days from the date of passing the decree in accordance with the Solenema the defendant shall be bound to execute and register the saf-kabala deed in favour of the plaintiff and condition No. 2 of the Solenama provided that in the event of failure of the defendant to do so the plaintiff-petitioner shall obtain the same, that is the saf-kabala deed through an execution case from the court.

3.             It is also alleged that the defendant-opposite parties did not fulfill the condition in the Solenema within the specific time of 15 days and therefore the plaintiff-petitioner in pursuance of Condition No. 2 of the Solenama filed Execution Case No. 05 of 2016 before the concerned court for approval of the draft kabala deed. But the court below rejected the application for approval of the kabala of the decreetal land by an order dated 27.11.2016.

4.             Being aggrieved by the impugned Order dated 27.04.2016 passed by the Learned Joint District Judge, 1st Court, Comilla in Title Execution Case No. 05 of 2016 rejecting the petition dated 27.11.2016 filed by the plaintiff-petitioner for approval of kabala of the decreetal land, the plaintiff-petitioner filed the instant Civil Revision which is before us for disposal.

5.             Learned Advocate Mr. Mohammad Anwar Hossain along with Mr. Nanda Dulal Das appears on behalf of the plaintiff-petitioner while none appears for the opposite parties.

6.             Learned Advocate Mr. Mohammad Anwar Hossain submits that the court below committed serious error of law and fact given that it over looked the amendment order of the suit and erroneously disallowed the petition for execution filed by the plaintiff-petitioner. He elaborates his submissions upon assertion that upon allowing the application for amendment of plaint under Order 6 Rule 17 of the Code of Civil Procedure, the suit was also turned and supplemented into a suit for Specific Performance of Contract and not merely for declaration of Title and confirmation of possession. He drew our attention to the fact that by allowing amendment of plaint the suit being supplemented into a suit for Specific Performance of Contract also, consequently, the prayer and relief sought for does not remain confined to a mere declaration of Title and confirmation of possession only. He further asserts that Title suit No. 275 of 2006 being also supplemented into a suit for Specific Performance of Contract eventually, therefore an Execution Case is maintainable and should have been allowed. He further argues that condition No. 2 of the Solenama provides that in the event of failure by the defendant-opposite party to execute the saf-kabala deed within 15 days the plaintiff-petitioner shall be entitled to file an execution case to obtain approval for saf-kabala of the decreetal land through the court, but the court below upon serious error also failed to consider this vital condition in the solenama. He concludes his submissions upon assertion that the Rule bears merit and the erroneous order of the court below be set aside and the Rule be made absolute.

7.             We have heard the learned Advocate for the plaintiff-petitioner, perused the materials on record including the Solenama, the amendment petition etc. and the impugned Order. Upon perusal of all these documents, it appears that by allowing the application of amendment of plaint under Order 6 Rule 17 of the Code of Civil Procedure, the suit actually also has been extended into a suit for specific performance of contract and for the execution of which an execution case is maintainable under the law. It is clear from condition No. 1 and 2 of the Solenama and which forms part of the sole Decree that the parties agreed that in the event of failure by the defendant-opposite parties to execute the saf-kabala within 15 days in favour of the plaintiff-petitioner, the plaintiff-petitioner shall be entitled to enforce their right through an order of the court upon filing execution case. But it appears that somehow the court below upon misapplication of mind or whatsoever overlooked these materials factors especially the fact that the suit was eventually also extended and supplemented into a suit for Specific Performance of Contract and the court below wrongly ignored Condition No. 1 and 2 of the solenama upon which the court passed the sole decree and consequently issued an erroneous Order.

8.             Considering the above facts and circumstances of the case and taking the submissions of the learned Advocate for the plaintiff-petitioner and upon perusal of all documents before us we find merit in the Rule.

9.             In the result the Rule is made absolute and the order dated 27.11.2016 passed by the learned 1st Court, Joint District Judge, Comilla in Title Execution No. 05 of 2016 rejecting the application is hereby set-aside and the executing court below is hereby directed to pass necessary orders for approval of the saf-kabala and for registration of the same accordingly.

10.         Order of stay granted at the time of issuance of the Rule is hereby vacated.

11.         Communicate the order at once.

Ed.  



Civil Revision No. 4202 of 2016