Ishaque Hossain Chowdhury Vs. Mrs. Shamsun Nessa Begum and others

Case No: Civil Revision No. 623 of 1988

Judge: Anwarul Hoque Chowdhury,

Court: High Court Division,,

Advocate: Mr. M. G. Bhuiyan,Abdul Aziz Chowdhury,,

Citation: 41 DLR (1989) 22

Case Year: 1989

Appellant: Ishaque Hossain Chowdhury

Respondent: Mrs. Shamsun Nessa Begum and others

Subject: Property Law,

Delivery Date: 1988-11-28

Ishaque Hossain Chowdhury Vs. Mrs. Shamsun Nessa Begum and others
41 DLR (1989) 22

Supreme Court
High Court Division
Anwarul Hoque Chowdhury J
Ishaque Hossain Chowdhury
Mrs. Shamsun Nessa Begum and others
……..................Opposite Party

November 28, 1988
Code of Civil Procedure (V of 1908)
Order I, Rule 10(4)
Addition of a party cannot mean addition or introduction into a suit a new cause of action or to change its character, even though all the controversy are relatable to the property in dispute.
Code of Civil Procedure (V of 1908)
Section 115
Power to add party is not open to revision unless the order is contrary to legal principles governing the exercise of such discretion.
Case Referred to-
Amal Kumar Moitra Vs. Mashiur Rahman, 30 DLR (SC) 244.
Lawyers Involved:
Abdul Aziz Chowdhury, Advocate— For Peti­tioner.
M. G. Bhuiyan, Advocate—For Opposite Party No. 1

Civil Revision No. 623 of 1988
Anwarul Hoque Chowdhury J:This Rule arises out of an application under sec­tion 115 of the Code of Civil Procedure and is directed against the order dated 12-7-88 passed by the learned Assistant Judge, 6th Court, Dhaka, rejecting the prayer of the petitioner to add him as a defendant in Title Suit No. 183 of 1986, which is still pend­ing in the court.
2. Facts leading to this, in short, are that oppo­site party Mst. Shamsun Nessa Begum as the plain­tiff instituted a suit being Title Suit No. 183 of 1986 on 17-8-86 before the Assistant Judge, 6th Court, Dhaka for a declaration against defendant Nos. 1 and 2 namely, Additional Deputy Commissioner Revenue, Dhaka, in charge of Vested Non-Resident Property and the Government of Bangladesh repre­sented by Deputy Commissioner, Dhaka alleging that the suit property originally belonged to (1) Girish Chandra Mondal and (2) Rup Chand Mondal and while they were owners in possession, Rup Chand Mondal transferred his 8 annas share in the property by a registered deed dated 11-12-63 in favour of Girish Chandra Mondal who is the owner of the rest half of the property and delivered possession on that day. Girish Chandra Mondal is the brother of Rup Chand Mondal. Thereafter, Girish having been 16 annas owner of the suit property transferred the suit land by a registered deed dated 26-11-70 to the plain­tiff Shamsun Nessa Begum and delivered possession on that day. The plaintiff’s case is that she on pur­chase entered into possession and constructed hut therein. Her name was recorded in the khatian and she paid rents to the Government on proper receipt and since purchase she had been peacefully enjoying and possessing the suit land adversely and openly to the knowledge of all. While she was in such posses­sion she came to know on 11-12-85 that the suit land had been recorded as a vested property in Vested Property Case No. 16/81 and has been leased out il­legally as vested property. It was illegal and the Vested Property Authority namely, defendant Nos. 1 and 2 have no right, title in the suit land and cannot treat the property as a vested property in the year 1981 because the vendor of the plaintiff is a Bangla­deshi national and he transferred the property to the plaintiff who is also a Bangladeshi national in the year 1970. But after the Vested Property Case No. 16 of 1981 had been started the defendants attempted to dispossess the plaintiff. Hence the suit.
3. The suit was contested by the Vested Proper­ty Authority namely defendant Nos. 1 and 2. At the end of the proceedings, 9.7.88 was fixed for argu­ment and the court having heard the arguments ad­vanced by the learned lawyer appearing for the re­spective parties fixed 16.7.88 for judgment. On that day in the evening at about 4.20 Ishaque Hossain Chowdhury, the present petitioner before this Court, appeared with a vokalatnama and prayed to be added as a party. A copy of that petition was served on the lawyer of the plaintiff who was accepted with ob­jection. On that the court fixed on 12-7-88 for hear­ing. On 12-7-88 the matter was heard in presence of the parties when it was argued by the learned Advo­cate appearing for Ishaque Hossain Chowdhury that regarding this property they have also filed a suit in the Court of the Subordinate Judge and he has inter­est in the property but he has not been made a party in the present suit, hence he ought to be added as a party. The court, however, rejected the application by its order dated 12-7-88. Against that this Rule was obtained.
4. Mr. A. Z. Chowdhury, the learned Advocate appearing for the petitioner, having taken me through the impugned judgment and other connected exhibits on record submitted that the court below committed an error of law occasioning failure of jus­tice in failing to appreciate that the petitioner is the rightful owner and is thus, a necessary party to the suit. He has further argued that the court illegally re­jected the petition without arriving at a finding as to the right, title and possession over the suit property and therefore the order need to be- set aside. The learned Advocate has referred to certain decisions to which I shall advert at the relevant portions of the judgment.
5. Mr. M. G. Bhuiyan, the learned Advocate ap­pearing for the opposite party No. 1 plaintiff, sub­mitted that the court having committed no error of law occasioning failure of justice, this court would not interfere with the order of rejection which has been passed by the court legally causing no error of law. In elaborating this point Mr. Bhuiyan submit­ted that this application was rightly rejected because it was filed at a belated stage and addition of new party who claims Title, adverse to the plaintiff would introduce a new cause, changing the character of the suit.
6. The matter, in the instant case relates to addi­tion of a party in a suit under Order (1) Rule 10 of the Code of Civil Procedure. Under Order (1) Rule 10 (2), 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. Under Order 1, Rule 10 (4) where a defendant is added the plaint shall, unless the Court otherwise directs, be amended in such a manner as may be necessary.
7. This question of joinder of parties is merely one of procedure. It is a question of judicial discre­tion which, however, need to be exercised judicially taking in view all the facts and circumstances of the matter in suit. The object of adding a party is to avoid multiplicity of suits and to add person in a suit it is not enough that he has interest in the property of the suit but that his presence is necessary to deter­mine all the questions involved in the suit in ques­tion. Hence, the court will not grant leave to add parties where it would not introduce a new story or a cause of action with which the plaintiff has nothing to do nor the court would grant leave lo add a party when such addition would change a suit of one character into a suit of a different character. The expression "all the question involved in the suit" means ques­tion between the parties and are limited lo questions with regard to the rights set up in the suit and the re­lief claimed by one side and denied by the other. But that does not mean that all claims which may possi­bly be related to the property involved in the suit, may also be settled in it. Therefore, addition of a party cannot mean addition or introduction into a suit a new cause of action or to change its character, even though all the controversy is relatable to the property in dispute.
8. That is more or less the law regarding addi­tion of parties in a suit and there is no dispute or controversy with that principle spelt out by the com­petent courts all over this sub-continent including the High Court of Judicature of Indian Jurisdiction.
9. This addition of parties or rejection of addi­tion of parties, in exercise of the power under Order 1, rule 10, being a discretion of a Court, may not be interfered with unless it could be shown that the or­der was perverse or manifestly unjust and contrary to law. Except on these grounds, an order passed under Order 1, Rule 10 of the Code of Civil Procedure would not be revisable, even if it is erroneous.
10. In the case of Amal Kumar Moitra Vs. Mashiur Rahman, the Supreme Court of Bangladesh had occasion to examine a similar matter reported in 30 DLR (SC) 244. It was held therein by their Lordships that Revisional jurisdiction under section 115 of the Code of Civil Procedure is meant primari­ly for correcting errors made by the subordinate courts in the exercise of their jurisdiction and not those which are made in their discretion, unless the discretion is exercised fancifully or arbitrarily. The power to add a party is discretionary and unless that power was exercised arbitrarily or fancifully it cannot be interfered with under section 115 of the Code of Civil Procedure and even an improper or a wrong ex­ercise of discretion 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.
11. In the instant case the counter affidavit filed by the opposite party Mst. Shamsun Nessa Begum is to the effect that the prior saf-kabla existing in fa­vour of the present petitioner is a forged and fabricat­ed document and all the records of the Sub-Registrar Office having been burnt during the liberation war he has taken the advantage of manufacturing this docu­ment. It has been stated that after the alleged pur­chase the present petitioner had not mutated his name in the relevant khatian on the basis of his earlier document nor paid any rent to the Government and as such the alleged deed of purchase had not been acted upon and it had lost its validity in the eye of law whereas the opposite party Shamsun Nessa Begum on the other hand after purchase has mutated her name in the revenue record and paid rent upto 1392 B.S. and R.S. Khatian was prepared in her name and she has been residing in the suit property since pur­chase by constructing hut therein.
12. It, therefore, appears that it is a case be­tween two contesting documents, said to have been executed by the same vendor, one after the other, transferring the same Property. Hence, the question between the two parties would be as to who is the owner and not whether it is a vested property or not which is the subject-matter in dispute in the instant suit.
13. In my opinion, if the petitioner is added as a party on these pleadings the plaint need to be amended because the plaintiff would be asking for a declaration that the documents existing in favour of the present petitioner is a fraudulent document and she is the owner thereby, introducing new facts and cause of action, changing nature and character of the suit, which amendment at this belated stage would be unwarranted.
14. It is further seen that the petitioner before this Court, had already filed a suit for a declaration of his title in the suit property where this lady has been made a party and any decree passed in the instant suit in his absence would not be binding upon him but the decree passed in the pending suit, filed by the pe­titioner would be binding on both the parties. In the facts and circumstances of the case I find that the court in rejecting the prayer for addition of party had not acted illegally, acting perversely or arbitrarily or fancifully for this court to interfere with that order.
15. That being the position. I find no substance in this Rule which is accordingly discharged without any order as to costs.
16. The stay granted earlier by this court is hereby vacated and the court below shall proceed with the suit and pass judgment in accordance with law as it may deem fit and proper.
Communicate this order to the court below at an early date.