Case No: Civil Revision No. 2757 of 1999
Judge: Mozammel Hoque,
Court: High Court Division,,
Advocate: Nurul Huq,Mr. Ozair Farooq,,
Citation: 53 DLR (2001) 29
Case Year: 2001
Appellant: Islami Bank Bangladesh Ltd. and others
Respondent: Abdul Jalil and others
Subject: Property Law,
Delivery Date: 1999-11-18
53 DLR (2001) 29
High Court Division
(Civil Revisional Jurisdiction)
Md. Mozammel Hoque J
Md. Abdur Rashid J
Islami Bank Bangladesh Ltd. and others
Abdul Jalil and others
November 18, 1999
Code of Civil Procedure (V of 1908)
Section 151 and Order 7 rule 11
Cases Referred To-
Guinness Peat (Trading) Ltd, 1992 BLD (AD) 247, 44 DLR (AD) 242; Burmah Eastern Ltd Vs. Burmah Eastern Employees Union, DLR 709.
Alhaj Md. Nurul Huq with Chowdhury Taser Ahmad, Muhammad Nazrul Islam, SM Zahangir Alam, AKM Shahidul Huq, Tania Siddiqua and Ms. Chamon Akhter, Advocates –For the Petitioners.
Md. Ozair Farooq with Sheikh Awsaful Rahman and SK Md Morshed, Advocates—For the Opposite Parties.
Civil Revision No. 2757 of 1999
Mozammel Hoque J:This Rule was issued calling upon the opposite parties No. 1 to 40 to show cause as to why the order No. 12 dated 27-7-1999 rejecting an application for rejection of the plaint passed by the Subordinate Judge, 5th Court, Dhaka in Title Suit No. 42 of 1999 should not be set aside.
2. Defendants are the petitioners before this Court.
The opposite parties No. 1 to 40 as plaintiffs instituted the instant suit for a declaration that the decree dated 23-3-1995 passed in Title Suit No. 177 of 1994 (formerly Title Suit No. 92 of 1991) is illegal and invalid and the said decree is not applicable to ‘Ga’ schedule land. It is further prayed that the land described in ‘Kha’ Schedule measuring about 94 ajutangsha was purchased by the defendant No. 1 from defendants No.2 to 6 before the trial Court the defendants filed an application under Order 7 rule 11 read with order 17 Rule 2 of the Code of Civil Procedure for rejection of the plaint or in the alternative for hearing the law point first. The learned Subordinate Judge by the impugned order dated 27-7-1999 rejected the aforesaid application of the defendants. Being aggrieved by the order dated 27-7-1999 the defendant petitioners preferred this revisional application and obtained the present Rule.
3. In considering the present Rule we are to consider the previous history of this Case. The opposite parties No.1 to 40 are the plaintiffs in the instant Case namely, Title Suit No.42 of 1999. These opposite parties No.1 to 40 were also plaintiffs in Title Suit No. 92 of 1991 which was subsequently re-numbered as Title Suit No. 177 of 1994. In that suit the plaintiffs (who are present opposite parties No. 1 to 40) prayed for declaration of title in respect of ‘Ka” and ‘Kha’ Schedule land and for partition. In that earlier suit the present defendant-petitioners No.2 to 7 were also defendants. With regard to Schedule ‘Ka’ land in the earlier suit no dispute has arisen in the present suit. Only in respect of ‘Kha’ Schedule land of the previous suit the present suit has been filed by the self same 40 plaintiffs. In the ‘Kha’ Schedule of the plaint of the earlier suit the land of CS Khatian No. 4300 Ja, CS plot No. 371 was shown as 94 shatangsha and the plaintiffs’ claim that out of 94 shatangsha the defendants purchased only 0.0090 ajutangsha by several documents in the year 1954- 55. Since the defendants purchased a small portion of land by several documents in the year 1954-55, the defendants were made parties in the earlier suit as the plaintiffs prayed for declaration of title as well as partition. So, in the previous suit the plaintiffs’ claim was that the defendants purchased 0.0090 ajutangsha land but the claim of the defendants was that the defendants purchased 9400 ajutangsha that is 94 satangsha. In the earlier suit the defendants’ claim was that by mistake the area was written in the deed but in fact they purchased the entire suit land of CS plot No.371 in the year 1954-55 and thereafter they mutated their names and had been possessing the entire land although. The matter was investigated by the trial Court as well as by the appellate Court and it was found by the trial Court that the defendants purchased by several documents in the year 1954-55 the entire land measuring 90 shatangsha. The plaintiffs tried to prove before the Court by showing CS Khatian that the said plot contained 0.94 decimals of land but the trial Court as well as the High Court Division found that the document of the plaintiffs namely, the CS Khatian filed by the plaintiffs, was forged and fabricated. Ultimately the trial Court held that entire lands measuring 90 shatangsha of CS plot No.371 was purchased by the defendants. A portion of the land was acquired and some other portion was taken for path and ultimately. 0.8372 acre which is 83.72 shatangsha is left and this portion was first leased out to defendant No.9 and subsequently the defendants entered into an agreement with defendant No. 9 in 1989. So, the claim of the plaintiffs as well as the claim of the defendants over the present suit land was examined both by the trial Court and High Court Division in respect of area of land of CS plot No. 371 and it was found that the defendant No.9 was possessing 0.8372 acre of land by virtue of agreement from the defendants. So, the trial Court dismissed the suit of the plaintiffs holding that the plaintiffs failed to prove right, title and possession in respect of 0.8372 acre of land of CS plot No. 371 and the defendants had been able to prove their right, title and possession over the aforesaid land and the defendant Nos.1 to 8 in the previous suit purchased the entire area of CS plot No.371. Being aggrieved by the judgment and decree of the trial Court in title Suit No. 177 of 1994 the plaintiffs’ No. 1 to 40 preferred an appeal before the High Court Division and it was registered as First Appeal No. 230 of 1995. The High Court Division heard both the parties and considered the matter at length. In order to pr the document of the plaintiff appellants the High Court Division took pains to call for the records from the office of the Collector and after examination the record the High Court Division found that basic document i.e. CS record of rights by plaintiffs, was absolutely forged and concocted. In this connection, it may be mentioned that before trial Court an Advocate Commissioner appointed in order to measure the suit land name CS plot No.371. From the Advocate Commissioner’s report it appears that the Commissioner found 0.9007 acre within the boundary of the land of CS plot No. 371. So, it appears that the Advocate Commissioner found more or less 90 shatangsha of land within the boundary of CS plot No. 371. Considering the matter and perusing the record and after hearing the High Court Division by a judgment and decree dated 4-3-1998 dismissed the appeal of the plaintiff-appellants and affirmed the judgment and decree by the trial Court holding that the entire suit plot No, 371 was purchased by the defendant-respondents and they have been able to prove their right, title and possession therein.
4. Being aggrieved by the judgment and decree of the High Court Division the plaintiffs preferred a leave petition namely, Civil Petition for Leave to Appeal No. 412 of 1998 before the Appellate Division. The leave petition was heard by the Full Court of the Appellate Division and there after the leave petition was dismissed summarily by order dated 25-5-1998 holding that the defendants purchased vide Exts. ‘Ka’ to ‘Ka (4)’ 0.0090 acre of land of CS plots No. 371. So, the Appellate Division dismissed the Leave petition holding that the defendant purchased the entire land of the suit plot. It was further held that the certified copy of the CS Khatian filed by the plaintiff appellants was forged and as such, the plaintiffs have no right, title as well as no particle interest in the suit plot. The plaintiff-appellants again filed a Review petition before the Appellate Division vide Civil Review petition No. 45 of 1998 and the Full Court of the Appellate Division dismissed the Review petition summarily on 5-11-1998 affirming its earlier judgment.
5. After getting decree in all the Courts as mentioned above the defendants sold 0.8372 acre of and to the defendant No.1 the Islami Bank Bangladesh Ltd by registered Sale Deed No. 3210 dated 28-7-1998. By the sale deed 0.8372 acre of land was sold by the defendant Nos. 2 to 6 to defendant No.1.
6. After sale of the above land by the defendant Nos. 2 to 6 to the present defendant No.1 the self same plaintiffs No.1 to 40 again filed the present Title Suit No.42 of 1999 with a prayer for declaring the decree passed in Title Suit No.177 of 1994 illegal and invalid and that the defendant No. 1 had not acquired any right by purchasing the land from defendant Nos.2 to 6 in respect of the suit and, Though no suit land was found as 90 shatangsha, in fact after acquisition of some portion of the suit land it now stands at 0.8372 acre which means 83.72 shatangsha. In the present suit No. 42 of 1999 the self same 40 plaintiffs who were the plaintiffs in earlier suit are also plaintiffs. Defendant Nos. 2 to 7 were also defendants in the earlier suit and since the defendant Nos. 2 to 6 sold the suit land to Islami Bank Bangladesh Ltd, this Islami Bank Bangladesh Ltd has been impleaded as defendant No. 1 in the present suit. So, it appears that the present suit land was the subject matter of the earlier suit. The present plaintiffs 40 in number are also the plaintiffs in the earlier suit and defendant Nos. 2-7 were also defendants in the earlier suit.
7. In view of the circumstances stated above Nurul Huq, the learned Advocate appearing for defendant-petitioners submits that in the instant suit no fresh cause of action has arisen. The cause of action according to the defendants which arose in the earlier suit had already been settled by passing a decree by the trial Court which was ultimately affirmed by the High Court Division and the Appellate Division. He further submits that the decree which was passed by the trial Court on 23-3- 1995 in Title Suit No.177 of 1994 cannot be cancelled now at the instance of the selfsame plaintiffs with regard to selfsame property inasmuch as the decree of the trial Court had been merged with the decree of the High Court Division and of the Appellate Division. Since the decree was affirmed by the Appellate Division it should be deemed to be a decree of the Appellate Division which cannot be set aside by the Subordinate Judge at the instance of the selfsame plaintiffs. Nurul Huq further submits that the present suit is barred by law and as such, provisions of Order 7 rule 11 of the Court of Civil Procedure are very much applicable.
8. Nurul Huq further submits that apart from the provisions of Order 7 rule 11 of the Code of Civil Procedure, considering the facts and circumstances of the Case, the Court can exercise its inherent power in order to settle the dispute for ends of justice. Nurul Huq further submits that in the earlier suit the trial Court held that not only the plaintiffs failed to prove their right, title and possession in the suit land but also the suit was barred by limitation and this judgment and decree of the trial Court had been upheld by the High Court Division as well as the Appellate Division and as such, the suit is barred by law of limitation also.
9. Ozair Farooq, the learned Advocate appearing on behalf of the plaintiff-opposite parties, submits that he has nothing to say with regard to the decree passed in the earlier suit in view of the fact that it was upheld by the Appellate Division. But he submits that the plaintiffs claim that by several registered documents of the year 1954-55 the defendants purchased only a fraction of the suit land namely, 0.0090 ajutangsha which is less than a decimal. Since the defendant Nos. 2 to 6 sold 0.8372 acre of land to defendant No.1 in the year 1998, a fresh cause of action arose and that is why the plaintiffs instituted the present suit inasmuch as the defendants Nos. 2 to 6 had no legal authority to sell the entire land of CS plot No.371 measuring 0.8372 acre and the defendant No.1 has not acquired any right and title by virtue of the sale deed which was executed and registered by the defendant Nos. 2(0 6. Ozair Farooq further produce a copy of the judgment of the Appellate Division which was passed in the review petition and wanted to show that the plaintiffs claimed the disputed plot measuring 0.94 acre but the defendants claimed 0.0090 acre which is less than a decimal. So the plaintiffs had got a right to claim the remaining portion of the suit land.
10. Let us now consider the submissions of Ozair Farooq as regards the cause of action of the present suit. As we have stated above that CS plot No. 371 was the subject matter of the decision of the earlier suit and in that suit also the plaintiffs claimed that by several documents in the year 1954-55, 0.0090 acre of land was purchased by the defendants and not 0.90 decimals. Their Case was that along with another CS plot No.115 the defendants purchased a small fraction of CS plot No. 371 which is less than a decimal. So, the plaintiffs till today can claim the remaining portion of the land of CS plot No. 371. It is difficult to accept the contention of Ozair Farooq in view of the fact that the selfsame claim was made by the plaintiffs in the earlier suit and on such claim they prayed for declaration of title and partition but right from the trial Court up to the Appellate Division their claim was not accepted, and it was held that the defendants purchased the entire land of CS plot No. 371 and the plaintiffs failed to prove the right, title and possession in respect of the said land. So, at this stage the argument advanced by Ozair Farooq cannot be accepted in view of the fact that the dispute as he is rising now in the instant suit had already been settled once and for all in the earlier suit up to the Appellate Division. After getting a decree up to the Appellate Division the defendant Nos. 2 to 6 just sold their land to the defendant No. 1 Islami Bank Bangladesh Ltd. and by such transfer no fresh cause of action has arisen in view of the fact that the cause of action which is raising now in the instant suit had already been decided in the earlier suit by the trial Court and also by the High Court Division and the Appellate Division. As such, we find that there is no cause of action for filing the instant Title Suit No. 42 of 1999.
11. In the instant Title Suit No. 42 of 1999 the first prayer was made for a declaration that the decree passed in Title Suit No. 177 of 1994 dated 23-3-1995 is illegal and invalid and not relating to the property which is the subject matter of the present suit. It appears to us that the decree passed by the trial Court in the earlier suit was upheld by the Appellate Division. So, the decree of the trial Court had been merged into the decree passed by the High Court Division as well as by the Appellate Division. Since the decree of the trial Court had been merged into the decree of the Appellate Division, such a decree now cannot be set aside by the trial Court in view of the fact that now it is a decree of the Appellate Division. Since the decree in the earlier suit in respect of the selfsame plot of land in between the selfsame parties had been merged into the decree of the Appellate Division such decree cannot be set aside by the trial Court again.
12. Nurul Huq further submits that the suit is barred by law in view of the fact that 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 Since the judgment and decree passed in the each suit were affirmed by the Appellate Division, this a law declared by our Appellate Division, and such, the present suit cannot be maintainable view of the law declared by the Appellate Division in the judgment passed in Civil Petition for Leave Appeal No. 412 of 1998.
13. Nurul Huq further submits that in earlier suit the trial Court passed a decree not on merit of the suit but also on the ground limitation and, as such, the judgment and de affirmed by the High Court Division as well as the Appellate Division and as such, on that limitation the present suit cannot be maintainable. The defendants purchased the suit land 1954-55 but the plaintiffs instituted the year 1991 and on that ground the trial that the suit was barred by limitation situation we hold that such a suit is barred by law in view of the fact that on the ground of earlier suit was dismissed which was affirmed by the Appellate Division.
14. Nurul Huq further submits that apart torn the question of Order 7 rule 11 of the Code of civil Procedure in an appropriate Case the Court can exercise its inherent jurisdiction for ends of justice. In this regard he has referred to the Case of Burmah Eastern Ltd Vs. Burmah Eastern Employees Union, 18 DLR 709. In that Case Justice Murshed presiding over a Division Bench 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 such exhaustive limitation added for harassing the other party again.
Justice Murshed has held as follows:
“The principles involved as two-fold: 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.”
15. Order 7, rule 11, of the Code, as quoted ye, enumerates certain categories under which 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 t at the earliest moment so that no further time is wasted over what is bound to collapse as not being permitted by law”.
“Turning now, to the plaint in the present suit, it is obvious, from a mere perusal of the plaint itself, that it must be held that the suit is prohibited under if not by law, this being the position, even if the Case does not come, literally and strictly, within the letter of Order 7 rule 11, of the Code of Civil Procedure, there cannot be any manner of doubt that the suit is prohibited under the law in the sense that it is barred under legal provisions. The Court below therefore, has rejected the plaint in limine because the suit itself is barred under our legal system. If Order 7 rule 11, of the Code of Civil Procedure cannot be prayed in aid, the inherent power of the Court should be invoked”.
16. Ozair Farooq could not satisfy us with respect to the question of a new cause of action and that the suit is not barred by law. We have scrutinized the plaints of both the suits as well as the judgments passed by the Courts up to the Appellate Division and we are of the view that the question which Ozair Farooq 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. Further, we hold that since the decree passed by the trial Court in the earlier suit had already been merged into the decree of the Appellate Division such a decree cannot be challenged before the trial Court.
17. It may be mentioned that in the earlier suit dispute was raised as regards area of land sold in 1954-55 to the defendants in CS plot No. 371. After local investigation and after considering other material evidence on record both documentary and oral, it was clearly held by the trial Court, the High Court Division and the Appellate Division that the entire areas of CS plot No. 371 was purchased by the defendants by several registered documents in the year 1954-55. So, we hold that the plaintiffs are debarred from raising such dispute again with regard to the area of the land in Cs plot No. 371 sold to the defendants.
18. Considering the plaint of the suit and also considering the facts and circumstances of the Case as discussed above, we are of the view that this is a fit Case where the provisions of Order 7 rule 11 of the Code of Civil Procedure are applicable and as such, the plaint is liable to be rejected.
19. In the result, this Rule is made absolute and the impugned order dated 27-7-1999 passed in Title Suit No. 42 of 1999 is hereby set aside and the application for rejection of the plaint under Order 7 rule 11 of the Code of Civil Procedure is allowed and the plaint of Title Suit No.42 of 1999 is hereby rejected.
There will be no order as to costs.
Md. Abdur Rashid J.
I have gone through the judgment prepared by my learned brother Mr. Justice Mohammad Mozammel Haque, agreeing with him, with great respect I write out the reasons of my own for our decision to make the Rule absolute and to reject the plaint of TS No. 44 of 1999 of 5th Court of Subordinate Judge at Dhaka.
22. It appears that the learned Subordinate Judge based his decision mainly on his findings that the Supreme Court concluded that the defendants purchased 0.0090 acre only. So, claiming to have purchased 0.0090 acre only but selling 0.8372 acre showing total area of 0.90 acre to the defendant No.1 whether the defendant Nos. 2 to 6 practised fraud or not can only be decided on evidence and the question of limitation can also be decided only after taking evidence.
23. The plaintiffs stated in paragraph 10 of their plaint as their cause of action for the instant suit that on 7-5-1991 they instituted Title Suit No. 92/91 (subsequently renumbered as Title Suit No.177 of 1994 claiming the land in dispute measured about 0.94 acre, on the other hand, the defendants concealing the actual area of the suit land and practicing fraud upon the Court claimed the area of the suit land would be 0.0090 acre only and got the suit dismissed in the hearing of their Civil Petition for Leave to Appeal being Civil Petition No.412 of 1998 both the parties remained firm on their respective stands with regard to quantum of land of suit plot No.371. In the hearing of Civil Review Petition No.45 of 1998 also the defendants took the same stand and got the petition dismissed on 12-1-1999 taking certified copy of the sale deed, the plaintiffs found that the defendant Nos.2 to 6 transferred 0.8372 to defendant No.1 admitting total area of the suit plot 371 to be 0.90 acre. The defendant No.1 having declined to vacate possession from schedule ‘Ga’ land measuring 0.8282 acre which is the present suit land, the plaintiffs were constrained to institute the instant suit.
24. In the aforesaid cause of action, the plaintiffs prayed for a decree for declaring (a) that the decree dated 23-3-1995 passed in TS No.177 of 1994 by the 1st Court of Subordinate Judge, at Dhaka as illegal, ineffective and not relating to the suit land. (b) that the defendant No.1 did not acquire any right title or interest in more than 0.0090 acre of the suit plot CS Plot 371 and also for. (c) directing the defendant No.1 to hand over possession within 30 days of ‘Ga’ schedule land measuring 0.8282 acre of land in default to pass a decree entitling them to take possession through Court.
25. Nurul Haque, in support of his application under Order 7 rule 11 and Order 14 rule 2 of the Code of Civil Procedure, shortly the Code, submitted that the suit is hit by provisions of section 42 of the Specific Relief Act, briefly the Act, barred by the decision of the Appellate Division in Civil Petition No.412 of 1998 and also by limitation.
26. On the other hand, Ozair Farooque mainly submitted that after the judgment of the Appellate Division they came to learn that the defendant Nos.2 to 6 purchased only 0.0090 acre but sold 0.8372 acre. So they cannot validly convey the suit land measuring 0.8282 acre (schedule ‘Ga’ to the plaint) to defendant No.1 as they do not have any right, title or interest therein.
27. In the earlier TS No. 177 of 1994 the plaintiffs prayed for a decree in the preliminary form for partition of 0.94 acre of the selfsame CS Plot No.371 as they averred in paragraph No. 6 of the impugned plaint. But they failed to prove their right, title or possession in any part of the said land as was found by the trial Court. Rather their main document Exhibit 1 (Ga), certified copy of the CS Khatian produced by them, was found to be forged upon such view, the earlier suit was dismissed. The said decree was confirmed both by the High Count Division and the Appellate Division.
28. Such decree being in between the same parties in respect of the self same land as the plaintiffs consistently claimed in both the suits that the total area of land in dispute is 0.94 acre is binding upon both the plaintiffs and defendants. So the plaintiffs are not entitled to such declarations as prayed for in the instant suit on the basis of decision of the earlier suit which dismissed their all sorts of claim of right, title or possession in any part of the suit land in CS Plot No.371.
29. The claim of the plaintiffs to institute the instant suit on new cause of action upon the decision of the Appellate Division must stand rejected outright for the decision of the Appellate Division has given a finality to the decision of the trial Court in TS Suit No. 177 of 1994 that the plaintiffs failed to prove their any right, title or possession in any part of the land of CS Plot No.371.
30. The law is now well settled that instances in clauses (a) to (d) Order 7 rule 11 of the Code are not exhaustive. Even if a plaint is not barred by any law it may be found to be barred under some law, namely, section 42 of the Act and section 11 of the Code etc. From reading of the plaint we are satisfied that the plaintiffs are not entitled to pray for the declarations as sought for in the suit on the basis of the decision in Civil Petition No. 312 of 1998 of Civil Review Petition No.45 of 1998 and as such, their suit is barred under provisions of section 42 of the Act and accordingly, the instant suit is not maintainable.
31. In an appropriate Case, a plaint may also be rejected even under section 151 of the Code as was held by the Appellate Division in the Case of Guinness Peat (Trading) Ltd reported in 1992 BLD (AD) 247, 44 DLR (AD) 242-
“a resort to section may be made in the interest of justice in an exceptional Case where the suit is foredoomed and it is allowed to be proceeded with, it will amount to an abuse of the process of the Court.”
From a reading of the plaint the fate of the ‘instant suit becomes clear if the present suit is allowed to proceed further it would only consume the time, energy and money of all the parties concerned, in such facts and circumstances of the Case this Court cannot allow such frivolous, vexatious and malafide suit to continue further.
32. On the question of fraud, as read by the learned Subordinate Judge I must say we failed to find prima facie, any ingredients of fraud from heading of the plaint. Mere allegation is not sufficient. To make out a Case of fraud for setting aside a contested decree which was affirmed up to the apex Court, the plaintiffs are required to state precisely and clearly how the defendants resisted the plaintiffs from getting their cherished decree. The Plaintiffs instituted the earlier suit for partition and the defendants did exactly what were expected of them to defend their interest. So, the allegation of fraud as raised in the plaint is an after thought and does not require the Court to wait for the time of evidence to decide if it is permitted, then there would be no end of litigation.
33. The puzzle about the area of CS plot 371 surfaced around the decimal figures 094, 090 and 0.0090 also does not come to any help of the plaintiffs as they already failed to prove their right title or possession in any part of the suit land.
For the reasons stated above, in rejecting the application under Order 7 rule 11 of the Code, the learned Subordinate Judge, committed an error of law resulting in an error in his decision occasioning failure or justice and as such, the impugned order is liable to be set aside and is accordingly, set aside.