Ismail (Md) Vs. Motasim Ali Chowdhury

Case No: Civil Revision No.1579 of 1999

Judge: AK Badrul Huq,

Court: High Court Division,,

Advocate: Md. Waliur Reza Chowdhury,Md. Hannan,,

Citation: 53 DLR (2001) 190

Case Year: 2001

Appellant: Ismail (Md)

Respondent: Motasim Ali Chowdhury

Subject: Property Law,

Delivery Date: 2000-04-20

Ismail (Md) Vs. Motasim Ali Chowdhury
53 DLR (2001) 190
 
Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
AK Badrul Huq J
 
Ismail (Md) ........................ Petitioner
Vs.
Motasim Ali Chowdhury ………………….Opposite Party
 

Judgment
April 20, 2000
 
Code of Civil Procedure (V of 1908)
Order XXVI rule 9
The Court was required to dispose of the Local Investigation matter whether he would reject the same or accept before posting the suit for preemptory hearing.
 
Lawyers Involved:
Md. Waliur Reza Chowdhury, Advocate—For the Petitioner.
Md. Hannan with Md. Mainul Islam and AB Showkat Ali, Advocates—For the Opposite Party.
 
Civil Revision No.1579 of 1999
 
JUDGMENT
 
AK Badrul Huq J:The subject matter of challenge in this Civil Revision petition under section 115 of the Code of Civil Procedure is an order dated 24-3-1999 recorded by Second Court of Assistant Judge, Dhaka in Title Suit No. 226 of 1985 allowing an application under Order 26 rule 9 of the Code of Civil Procedure.
 
2. The decision proposed to be given in this Civil Revision Petition does not demand a detailed recounting of facts except that sole opposite party No.1 of this Civil Revision petition as sole plaintiff laid a suit being Title suit No.326 of 1982 in First Court of Munsif, Dhaka for declaration of title and recovery of Khas possession with respect to property described in schedule to the plaint. The said suit was renumbered as Title Suit No. 226 of 1985 on transfer to the Second Court of Assistant Judge Dhaka.
 
3. Plaintiff opposite party on 26-5-1985 presented an application for Local Investigation under Order 26 rule 9 of the Code of Civil Procedure by a Survey Knowing Advocate of the court on the following points:
 
(i) to ascertain the western boundary line of CS Plot No.110 of Mouza Tejkunipara and eastern boundary line of CS Plot No.935 of the same Mouza.
(ii) to show the suit land on the western part of CS Plot No.110 as shown by letters ABC and done the hand sketch with schedule to the Plaint.
 
4. Mr. Md. Abdur Rashid having been appointed Advocate Commissioner held Local investigation as prayed for and submitted his report. The report submitted by learned Advocate Commissioner on the above Local Investigation was rejected on objection.
 
5. Defendant-petitioner on 15-1-1986 laid an application for Local Investigation under Order 26 rule 9 of the Code of Civil Procedure on three
 
(i) To, relay the plaintiff’s deed to ascertain whether plaintiff is in possession of the area covered by his purchase deed or much land in his possession.
(ii) To relay whether defendant is possessing any land in excess of the land purchased by him.
(iii) To note the physical features of the lands and to submit map and field book, etc.
 
6. The report submitted by the learned Advocate Commissioner on the above subject matters of local investigation was accepted by the court on 8-1-1987. Plaintiff opposite party, thereafter, presented another application for Local investigation under Order 26 rule 9 of the Code of Civil Procedure for Local Investigation on two points which was exactly the same subject matter of Local investigation dated 26-5-1985. Investigation was held through a learned Advocate Commissioner and report was submitted by learned Advocate Commissioner.
 
7. Learned Assistant Judge on 3-6-1989 recorded order that the said report would be considered at the time of disposal of suit and fixed 18-6-1989 for peremptory hearing.
 
8. Plaintiff opposite party thereafter on 14-3-1999 prayed for Local Investigation under Order 26 rule 9 of the Code of Civil Procedure on the subject matter of Local Investigation sought by plaintiff in earlier two applications dated 26-5-1985 and 9-4- 19 87. Language and words of the subject matters of Local Investigation though not exactly in the same language and words couched in earlier two applications for Local Investigation but the substance of subject matters remained the same.
 
9. Defendant-petitioner resisted the said application on laying a written objection taking the stand that the application for Local Investigation was the repetition of the earlier applications on the same subject matters and the application had been directed only to cause delay of disposal of the suit.
 
10. Learned Assistant Judge by the order under challenge in the Civil Revision petition allowed the same. In recording that order the learned Assistant Judge only held that to secure ends of justice the prayer was allowed.
 
11. Feeling dissatisfied the defendant petitioner invoked this court’s Civil Revisional Jurisdiction on laying a petition under section 115 of the Code of Civil Procedure and obtained the Rule.
 
12. Md. Aliur Raza Chowdhury, the learned Advocate appeared in support of the civil revision petition. The plaintiff opposite party is represented by Md. Hannan along with Mr. Md. Mainul Islam and Mr. AB Showkat Ali, the learned Advocates.
 
13. Heard the learned Advocate, perused the impugned order and other papers annexed in the Civil Revision petition as well as the supplementary affidavit filed by the defendant petitioner and other papers placed before me.
 
14. From the materials on record it appears that the application for Local Investigation under Order 26 rule 9 of the Code of Civil Procedure presented by the plaintiff-opposite party on 9-4-1987 was allowed. A survey trained Advocate was appointed who held Investigation and submitted his report. Learned Assistant Judge instead of recording any order either of acceptance or rejection kept the matter pending for consideration at the time of final hearing. Learned Assistant Judge was required to dispose of the Local Investigation matter whether he would reject the same or accept before posting the suit for peremptory hearing. It appears that learned Assistant Judge shirked his responsibility in not disposing the Local Investigation matter. It has already been stated that the subject matter of Local Investigation in the application dated 9-4-1987 and the application dated 14-3-1999 were exactly same in substance. Since the Local Investigation matter was pending before the court for consideration by it at the time of final hearing of the suit, he was not at all justified in allowing the prayer of Local Investigation dated 14-3-1999. Learned Assistant Judge also in recording the impugned order did not assign any reason whatsoever and allowed the application for Local Investigation simply stating that for ends of justice the prayer stood allowed. The said order cannot be characterised to be a speaking order and it also cannot be said that the learned Judge had applied his judicial mind to resolve the controversy. The approach made by the learned Judge appears to be a very flippant approach and does not appear to be intelligible.
 
15. Since the Local Investigation matter was very much pending before the court it was required to be disposed of before peremptory hearing. It is informed by the learned lawyers of both the sides that in view of special consideration the testimony of defendant No.1 as DW 1 was recorded and the testimony of plaintiff as PW 1 was partly recorded. The suit is of the year 1982. Long 18 years has already elapsed since the commencement of the proceeding. Justice demands that the suit is to be disposed of as expeditiously as possible and a direction is accorded below. I am informed by the learned Advocate from the side of the defendant petitioner that direction was recorded by the High Court Division in Civil Revision No.826 of 1989 which was directed against an order allowing amendment of the plaint at the instance of the plaintiff opposite party to dispose of the suit within 3 months from the date of receipt of the record. But that direction recorded by the High Court Division was not complied with. The certified copy of the judgment dated 13th January 1993 recorded by the High Court Division had been placed before me. On Perusal of the judgment I find that the High Court Division directed the trial Court to conclude trial within 3(three) months from the receipt of the order of the court.
 
16. Learned Assistant Judge is directed to dispose of the report submitted by learned Advocate Commissioner on 16-11-1988 within 1(one) month from the date of receipt of this order. Learned Assistant Judge is also directed to dispose of the suit within two months of the disposal of the Advocate Commissioner’s report positively. Learned Assistant Judge is also directed not to grant any adjournment to any of the parties.
 
17. With recording of the above observation I record a further order which is that Learned Assistant Judge, Dhaka at the relevant time who was the presiding judge is directed to show cause within 1 (one) month of the receipt of this order to show cause as to why he shall not face the proceeding for non-compliance of the positive order recorded by the High Court Division in Civil Revision No.826 of 1989. The show cause is to be submitted to the Registrar of the Supreme Court of Bangladesh, Dhaka within that period.
 
18. A copy of this judgment be served upon the learned Assistant Judge at the relevant time.
 
19. A copy of this judgment be transmitted to the learned District Judge Dhaka.
 
20. On conspectus the Rule is made absolute. The impugned order dated 24-3-1999 is set aside.
 
21. The order of stay granted at the time of issuance of Rule on 23-5-1999 stands vacated.
Having regard to the fact and circumstances of the case I direct the parties to bear their respective costs.
 
Ed.