Case No: Civil Revision No. 3227 of 2006
Judge: Sharif Uddin Chaklader,
Court: High Court Division,,
Advocate: Mr. Syed Mokaddas Ali,Mr. Tajul Islam Miajee,,
Citation: 1 LNJ (2012) 397
Case Year: 2012
Appellant: Kabir Ahmed and others
Respondent: Sultan Ahammed and others
Subject: Res Judicata,
Delivery Date: 2012-04-10
(Civil Appellate Jurisdiction)
|Sharif Uddin Chaklader, J.
Krishna Debnath, J.
Kabir Ahmed and others
Sultan Ahammed and others.
Order VII, rule 11
Order XIV, rule 2
The plaint can be rejected under Order VII, rule 11 of the Code, only referring to the statements made in the plaint but not on defence materials. In the cited decisions it has been held that plaint cannot be rejected on the ground of res-judicata, learned judge committed gross illegality in rejecting the plaint on the ground res-judicata. However, special issue can be framed under Order XIV, rule 2 of the Code for a decision. ...(19 &20)
Code of Civil Procedure (V of 1908)
Order XIV, rules 1 and 2
No issue having been framed as to identity of plaintiffs paternity the findings that plaintiffs have no locus standi to challenge the decree as they are not the heirs of Mehernigar and Mehernigar was the daughter of Ashraf Ali are not sustainable. Unless an issue is framed no one is bound to prove such fact. ...(35).
Code of Civil Procedure (V of 1908)
It is contended on behalf of the petitioners that the subject matter of Title Execution Case No. 02 of 2002 and the subject matter of Title Suit No. 09 of 2005 being identical, it is necessary to hear by one court , otherwise the same might have ended in conflicting decision. Accordingly, the High Court Division was pleased to direct that the Title Execution Case and the Title Suit be disposed of by same Court....(40 & 42)
Mahbubul Haque (Md) vs. Md. A. Kader Munshi, 52 DLR(AD)-49; Shawkat All Chowdhury vs. G. Murshed Reza and others, 7 Law Guardian-24; Nurul Islam Chowdhury vs. Morshed Alam and others, 1 LNJ (AD)-3; Chief Engineer, Roads and Highways Department vs. Concord Engineers and Constitution Ltd, 48 DLR 243; Jahura Bibi and others vs. Mr. Habibur Rahman and others, 15 BLD 519; All India Reporter Limited, Bombay vs. Ramachandra Dhordo Dater, AIR 1861 (Bom) 292; Secretary of State vs. Golabrai Paliram, AIR 1932 (Cal.) 146 and ILR 34 (Bom) 250; Shafi A Chowdhury vs. Pubali Bank Ltd. and others, 54 DLR-311; Abdul Malek Sowdagar vs. Mahbubey Alam, 57 DLR (AD) 18; Mohammad Ali vs. Lt. Col. (Retired) Habibullah Bahar and others, 58 DLR (AD) 245=26 BLD (AD) 273 ref.
First Appeal No. 123 of 2008 with Civil Revision No. 3227 of 2006 with Civil Revision No. 3256 of 2005
All these 3 matters as per order of a Division Bench of this Court was directed for analogous hearing but in fact, these 3 items arisen from three separate cause of action as such are dealt with separately.
2. Appeal From Original Decree No. 123 of 2008 by the plaintiffs directed against judgment and decree dated 9.10.2007 passed by the learned Joint District Judge, 3rd Court, Comilla rejecting the plaint of Title Suit No. 9 of 2005.
3. Plaintiffs instituted the aforesaid suit for partition with further declaration that preliminary decree dated 15.03.1999 and final decree dated 08.07.2001 passed by the learned subordinate judge, 2nd Court, Comilla in Title Suit No. 61 of 1983 are not enforceable with further prayer for staying the proceeding of Title Execution Case No. 2 of 2002.
4. It is the case of the plaintiffs that Eakub Ali possessed 1.26 decimals of land from schedule No. l and also owner of schedule No.2 land, died leaving 2 sons, Asrab Ali and Altab Ali, who possessed 1.26 decimals of land from 1st schedule, 88 decimals of land from 2nd schedule, in total 2.14 decimals of land. Each brother possessed 1.7 acres of land. While they were possessing of their respective lands, Asrab Ali died leaving 3 sons, defendant No.27, Humayun Kabir, defendant No. 26, A. Sobhan and father of defendant Nos.31 and 32, A. Majid, 3 grand sons defendant Nos. 28-30 and Mehernigar and 4 daughters, each daughter got 1/10th portion of land left by their father, which counts in total 10(29/40) decimals of land. Mehernigar possessing from both schedule. Meharnigar died leaving behind plaintiffs Nos. 1-4 as sons and plaintiffs Nos. 5 and 6 as daughters, defendant No. 98 as husband. Plaintiffs came to know that defendant Nos. 1-23 obtained decree for partition, as such, they can take possession of the suit land. Plaintiffs were in dark about the suit and after getting definite knowledge of the decree, filed the suit for partition.
5. Defendant No. 1-21, 22(ka)-22(cha) and 23 appeared in the suit and filed application for rejection of the plaint on the ground that suit was instituted by suppressing the fact as Title Suit No.61 of 1983 was decreed for partition on contest by the plaintiffs, against which, plaintiffs filed Title Suit No.45 of 2002 in the Court of Senior Assistant Judge, Chouddagram, which was dismissed and decree was affirmed against which Title Appeal No.60 of 2005 was preferred by the plaintiffs before the appellate Court; the suit is barred by resjudjcata. By the impugned judgment, learned judge rejected the plaint holding that the suit is barred by resjudicata. In rejecting the suit, learned Judge found interalia that:-
দেওয়ানী ৬১/৮৩ নং মামলায় রায়/ডিক্রীর বৈধতার বিষয়টি চুড়ান্তভাবে নিষ্পত্তি হয়ে আপীল আদালত কর্তৃক বহাল থাকায় এবং উভয় মামলায় বর্তমান বাদীনঘ বাদী হিসেবে অন্তর্ভূক্ত থাকায় বর্তমান মামলায় দেং ৬১/৮৩ নং মামলার বিষয়ে প্রার্থীত প্রতিকার দি কোড অব সিভিল এর সেকশন ১১ অনুযায়ী দোবারা দোষে (সেরজুডিকাতা) বারিত।
দেওয়ানাী ৪৫/০২ নং মামলার নথি পর্যালোচনায় প্রথীয়মান হয়, উক্ত মামলার বিজ্ঞ বিচারিক আদালত উভয় পক্ষর সাক্ষ্য পর্যালোচানয় মেহের নিগারকে আশ্রাফ আলরি কন্যা হিসেবে বাদীর দাবী প্রমানিত হয়নি মর্মে সিদ্ধান্ত প্রদান করেন এবং বাদীগণ মেহের নিগারের ওয়ারিশ হিসেবে নালিশা ভুমি আনারে স্বত্ব স্বার্থ অর্জন করেননি মর্মে সাব্যস্থ করেন।
বহাল থাকার এবং উক্ত আপীলের রায়ের বিরম্নদ্ধে মহামান্য উচ্চ আদালতে কোনরম্নপ প্রতিকার প্রার্থনা না হওয়ায়, বর্তমান মামলার একই বিষয় পুনরায় বিচার ও সিদ্ধামত্ম গ্রহণের সুযোগ নেই। বাদীর বর্ণিত বাদীটিও দেওয়ানী ৪৫/০২ নং মামলার সিদ্ধামত্ম দ্বরা দোবারা দোষে বারিত।"
6. Syed Mokaddes Ali, learned Advocate appearing for the plaintiffs-appellants, submits that, it is settled principal of law that plaint of the suit cannot be rejected on defendants plea. Learned Advocate further submits that plaint cannot be rejected on the ground of res-judicata and also submits that some of the findings arrived at by the learned trial judge in fact require evidence to settle the dispute as such the impugned judgment is liable to be set aside, Learned Advocate relied on the decision of Mahbubul Haque (Md) vs. Md. A. Kader Munshi, 52 DLR(AD)-49, the case of Shawkat Ali Chowdhury vs. G. Murshed Reza and others, 7 Law Guardian, 24 also the case reported in new publication law report, i.e. Nurul Islam Chowdhury vs. Morshedul Alam and others, I LNJ (AD)-3. Crux of all these decisions that a plaint cannot be rejected on the ground of limitation as well as on the ground of resjudicata as these are mixed question of law and fact.
7. Mr. Tajul Islam Miajee, learned Advocate, appearing for the respondents, on reference to the judgment passed by the learned Joint District Judge, submits that, plaintiffs earlier filed suit against the decision of the partition suit and that suit was dismissed upto appellate forum and relief claimed being similar, learned judge committed no illegality in rejecting the plaint on the ground of resjudicata. Learned Advocate relied on the case of Chief Engineer Roads and Highways Department vs. Concord Engineers and Construction Ltd., 48 DLR-243 wherein it is settled that a plaint is liable to reject where the suit appears from the statement in the plaint to be barred by any law.
8. In the instant case plaintiffs instituted the suit with two prayers, one for partition and another for declaration and for setting aside the judgment and decree obtained in Partition Suit No.61 of 1983 from the Court of Subordinate Judge, 2nd Court Comilla.
9. It appears from the judgment and findings mentioned herein above that learned Judge did not at all go through the plaint itself rather it appears that learned judge rejected the plaintiff holding it barred by resjudicata on the defense materials.
10. Order VII Rule 11 of the Code of Civil Procedure speaks that:-
The plaint shall be rejected in the following cases:-
(b) where the relief claimed is under valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite
stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be bared by any law.
11. If we gathered from the application filed by the defendants for rejection of the plaint that it attract Rule 11 Order VII of the Code of Civil Procedure on the ground of resjudicata but on reference to the plaint we do not find such type of statement by which it can be said plaint is barred by any law.
12. In the case of Shawkat All Chowdhury vs. G. Murshed Reza and others, 7 Law Guardian-24, on reference many of the decision held that plaint cannot be rejected on the ground of resjudicata as it is mixed question of law and fact .
13. In the case of Jahura Bibi and others -vs- Mr. Habibur Rahman and others, 15 BLD 519, where it has been held in as much as from the statements made in the plaint the said suit does not appear to be barred by limitation.
14. In the case of All India Reporter Limited, Bombay -vs- Ramachandra Dhordo Dater, AIR 1861(Bom)292 where the question arose whether the plaint can be rejected when there is irregularities in the plaint, i.e. if the plaint is not properly signed or verified, it has been held that "In this case it is necessary to note that order VII Rule 11 which refers to the rejection of a plaint, enumerates only four cases in which a plain has to be rejected, but it does not enumerate any of the defects or irregularities referred to in order VI rule 14, order VI rule 15 or order VI rule 2.
15. In the decision of Secretary of State - Defendant – Appellant -vs- Golabrai Paliram-Plaintiff-Respondent, AIR 1932 (Cal.) 146 and ILR 34 (Bom) 250. The Firm of Gunnaji Bhawaji -vs- Makanji Khoosalchand and others Respondents and Defendants it has been held that where a plaint appears to be barred by limitation and no ground of exemption from limitation is mentioned therein the Court may in proper cases allow an amendment of the plaint under order VI rule 17 of the Code of the Code so as to make a plea of exemption, if any.
16. In the case of Shafi A Chowdhury vs. Pubali Bank Ltd. and others, 54 DLR-311 it has been held that an issue of resjudicata can not be resolved in disposing of a petition under clause (d) of rule 11 of order VII of the Code, because in rejecting a plaint under the said provision, the Court cannot travel beyond the four corners of the plaint. The concluding portion of this judgment give a guideline for disposing of an application under order VII rule 11 of the Code of Civil Procedure and I am tempted to quote the same:-
“44. Before parting with the case I would like to observe that whenever a learned Judge is confronted with a petition to reject a plaint he must first assume that the plaint was legally filed, unless that defendant persuades him to hold that the plaint is liable to be rejected in limini under order VII rule 11 of the Code. In dealing with such a petition he should not be unnecessarily hasty, rather act judiciary in considering the plaint,"
17. In the case of Abdul Malek Sowdagar vs. Mahbubey Alam, 57 D.L.R (AD) 18 it has been held that "the question as to whether the plaint is liable to be rejected being barred by law, must be apparent from the statement made in the plaint itself and not from that written statement or any other materials other than that has been put in the plaint. Thus this provision applies when it appears from the statement in the plaint that suit is barred by any law either due to limitation, resjudicata or barred by law providing ouster of the jurisdiction of the Court."
18. In the case of Mohammad Ali vs. Lt. Col. (Retired) Habibullah Bahar and others, 58 DLR (AD) 245=26 BLD (AD) 273 it has been held that "on consideration of the facts and circumstances we hold that, the bar of section 56(k) of the Specific Relief Act non-production of document under rule 14 of order VII has no manner of application in considering petition under order VII rule 11 of the Code Nor on point of maintainability of the suit, the plaint is liable to be thrown away in limini as the question may be agitated in framing an issue to the point. Similarly, for alleged vagueness in the schedule, if any, the plaint is not liable to be rejected."
19. The crux of these decisions is that plaint can be rejected under order VII Rule 11 C.P.C. only on reference to the statements made in the plaint, not on defense material.
20. Since all the authorises held that plaint cannot be rejected on the ground of resjudicata we find that learned judge committed gross illegality in rejecting the plaint on the ground of resjudi-cata. However, if the defendant wants to burie the suit earlier they can frame special issue as per order XIV Rule 2 the Code of Civil Procedure for a decision.
21. In the result, this appeal i.e. F. A. No. 123 of 2008 is allowed with these observations. No cost.
22. The impugned judgment and decree dated 9.10.2007 passed by the learned Joint District Judge, 3rd Court; Comilla rejecting the plaint in Title Suit No. 9 of 2005 is set aside.
23. Learned Judge is directed to proceed with the suit in accordance with law.
24. In Civil Revision No. 32.27 of 2006 plaintiffs challenge the judgment and decree passed by the learned District Judge, Comilla in Title Appeal No. 60 of 2005 affirming those dated 5.3.2005 passed by the learned Senior Assistant Judge, Chouddagram Sadar, Comilla dismissing Title Suit No. 45 of 2002 of its maintainability.
25. The case of the plaintiffs is that, Asgar Ali alias Asgar Bepari was the owner and possessor of the land described in the schedule Nos. l and 2 to the plaint and before C.S. operation, Asgar Ali permitted one Akub Ali to live in one portion of his homestead with a view to manage and look after his property and Akub Ali also was allowed him to cultivate some of his land without any title. During C.R. operation most of the land was correctly recorded in the name of Asgar Ali in C.R. khatian Nos. 10 and 13 but in C.R. khatian No. 4 in respect of land described in schedule No. l and the land wherein Akub Ali was allowed to reside was recorded in his name in possession column in plot No. 1961 and 2188 and Akub Ali also managed to record his name in possession column of plot No. 1897, 1898 and 2181.
26. The land of 2nd schedule was also belonged to Asgar Ali During C.R. operation, Akub All managed to record his name in C.R. khatian No. 134. Asgar All died leaving sons namely, Ashraf Ali and Altaf Ali. Ashraf Ali died leaving three sons namely, Humayun Kabir, Abdul Sobhan and Abdul Majid and 4 daughters namely Meher Nigar and defendant Nos. 28-30. Mehar Nigar died leaving plaintiff No. 1 as husband, 4 sons as plaintiffs Nos. 2-5 and 2 daughters' plaintiff Mos. 6 and 7. Recently plaintiffs could know defendant got a decree in Partition Suit No. 61 of 1983 in respect of the suit land by practicing fraud hence the suit.
27. The case of the defendant Nos. 1-23, in short, is that, Basi Gazi was the owner of 1st schedule land who died leaving 2 sons in Asgar Ali Bepari and Wali Gazi and one daughter, Anu Bibi who became owner of 2nd schedule land and were possessing in ejmali. During C.R. operation their names have been recorded in schedule 1. Wali Gazi died leaving wife and son, Akub Ali. Akub Ali inherited the land firm his parents and his paternal aunt, Anu Bibi, who gifted 0.26 acres of land orally to Akub Ali and thereafter, husband of Anu Bibi and two daughters transferred 17 kora to Akub Ali by registered deed dated 13.5.1914. Akub Ali mortgaged the said land to Zinnat Ali. Asgar Ali died leaving two sons in Ashraf Ali and Altaf Ali. Atokjan died issueless leaving cousin Akub Ali, Ashraf Ali and Altab Ali. Akub Ali got 106 decimals of land from 1st schedule and 0.44 acres of land from 2nd schedule by way of inheritance and gift. Jafar Ali died leaving defendant Nos. 1 to 3 as heirs. Aahraf Ali died leaving defendant Nos. 26 to 30 as sons and daughters. Defendant Nos. 1-23 filed Partition Suit No.61 of 1983 and got decree and after obtaining final decree in the suit, defendant Nos.26-40 of the present suit filed Partition Suit No. 98 of 2000. The suit was dismissed for default. Thereafter, this suit was filed as such it is liable to be dismissed with cost.
28. The case of defendant Nos.34 to 41 is that Asgar Ali and Akub Ali were the owners and possessors of schedule Nos.l and 2 in equal share. Asgar Ali died leaving 2 sons in Ashraf Ali and Altaf Ali. For arrears of rent 1st schedule land was went back to talukder. Jatindramohon Sengupta. Ashraf Ali took back the same on 1.5.1916. Ashraf Ali died leaving defendant Nos. 26-27 as sons and grandsons' defendant Nos.31 and 32 and four daughters, plaintiffs are the heirs of Meher Nigar. Defendants have no objection regarding title of the plaintiffs in respect of 0. 29 acres of land. Defendants are owners and possessors of 1.16 acres of land from schedule Nos. l and 2 by way of inheritance.
29. Both the Courts dismissed the suit, practically held that plaintiffs failed to prove that they are the heirs of Mehar Nigar and also failed to prove Mehar Nigar is daughter of Ashraf Ali.
30. Mr. Mozamnel Hossain learned Advocate, appearing for the plaintiff-petitioner, submits thnt, Courts below concurrently and constantly were in error of law in shifting onus upon the plaintiffs to prove the fact that Mehar Nigar was daughter of Ashraf Ali and they are the heirs of Meharnigaras such, learned Advocate submits that, since onus have been wrongly shifted to the plaintiffs, the judgment and decree suffers from misreading of the facts, is liable to be set aside.
31. Mr. Bhishmadev Chakraborty, learned Advocate, on the other hand, submits that, P.Ws. failed to prove they are heirs of Meharnigar who is a daughter of Ashraf Ali, the depositions of P.Ws on this score are totally contradictory and not believable, as such, courts below committed no illegality in dismissing the suit.
32. To find the question of fact that whether Meharnigar was daughter of Ashraf Ali we may refer to the depositions of the witnesses. P.W. L Kabir Mian himself deposed that he is son of Meharnigar. When any one claim that he is the son of some one further prove is not necessary as onus is shifter to the claimant who challenge his paternity to produce evidence that such person is not the son of such person whom he claim to his father or mother then and the person claim to be son of some one require to satisfy the fact of his paternity by aducing evidence. In the instant case when P.W 1 claim that he is son of Meher Nigar it is enough to hold P.W 1 is son of Mehar Nigar and onus entirely shifted to the defendants to prove whether Kabir Mian, P.W.I plaintiff No. 2, is son of Meharnigar and Meharnigar was daughter of Ashraf Ali. To this extent we find that Courts below committed gross illegality.
33. Issues were framed by the learned Senior Assistant Judge are that:-
“1.Is the suit maintainable in its present form and forum ?
2. Were the impugned judgment dated 15.3.99, the preliminary decree dated 21.3.99 and the final decree dated 8.7.01 passed in Partition Suit No. 61/83 by the Court of 2nd Sub-judge, Comilla obtained by practicing fraud upon the plaintiffs and court as well?
3. Are the plaintiffs entitled to get the relief as prayed for ?
4. To what other relief, if any, are the plaintiffs entitled ? "
34. It appears that no issue was framed as to identity of plaintiffs' paternity as such, the finding on this score i.e plaintiffs have no locus standi to challenge the decree as they are not the heirs of Meharnigar and Meharnigar was the daughter of Ashraf Ali are not sustainable. Unless issue be framed no one is bound to prove such fact. Plaintiffs whether the heirs of Ashraf Ali is the prime question and dispute to be settled but it appears no issue on this score was framed which prejudice the plaintiffs. Since both the Courts below proceed in wrong promises we are not require to go deep into the decisions arrived at by the Courts below. We are of the view that this suit is required to be tried afresh with the observations made herein above. We are directing the learned Senior Assistant Judge to frame an issue on the identity of the plaintiffs paternity thereafter proceed with the suit.
35. In the result, this rule i.e. Civil Revision No. 3227 of 2006 is made absolute. No costs.
36. The judgment and decree passed by the Courts below are set aside. Title Suit No 45 of 2002 is sent back on remand to the learned Senior Assistant Judge, Chouddagram Sadar, Comilla for a fresh trial on the observations made in the body of the judgment.
37. In Civil Revision No. 3256 of 2005 the subject matter is application for transfer of Title Suit No. 9 of 2005 from the Court of Joint District Judge 3rd Court. Comilla to be heard and disposed of along with Title Execution Case No. 2 of 2002 of the Court of Joint District Judge. 2nd Court, Comilla on the ground that-
"(৪) প্রার্থী পক্ষ যুগ্ম জেলা জজ ২য় আদালত দেং ৬১/৮৩ ইং বন্টনের মামলায় তপছিল বর্ণিত ভুমি বাবত বন্টনের প্রর্থনায় দেং ৯/০৫ নং বন্টনের মামলা যুগ্ম জেলা জজ ৩য় আদালতে দায়ের করিয়াছেন অপর দিকে অত্র মামলার ১-২৩ নং প্রতিপক্ষ দেং ৬১/৮৩ ইং বন্টনের মামলার প্রাথমিক ও চুড়ান্ত ডিক্রী বলে দেং ডিং ২/০২ ইং মামলা যুগ্ম জেলা জজ ২য় আদালতে দায়ের করিয়াছেন প্রার্থীগণের দায়েরকৃত দেং ৯/০৫ ইং বন্টনের মামলা এবং অত্র মামলার ১-২৩ নং প্রতিপক্ষ গণের দায়েরকৃত যুগ্ম জেলা জজ ২য় আদালতে দেং-ডিং ২/০৫ ইং মামলা দায়ের করিয়াছেন। উভয় মামলা চলিতবস্থায় আছে। উভয় মামলার নালিশী ভুমি ও একই পক্ষ হওয়ায় দুইটি মামলা একই আদালতে বিচার হওয়া একান্ত আবশ্যক, দুইটি মামলা দুই আদালতে ভিন্ন ভিন্ন ভাবে পরিচালিত হইলে প্রার্থী পক্ষের অপুরনীয় ক্ষতির কারণ হইবে। এমতাবস্থায় দুটি মামলা একই আদালতে বিচার হওয়ার আদেশ হওয়া একান্ত আবশ্যক, নতুবা প্রার্থী পক্ষের অপুরনীয় ক্ষতির কারণ হইবে।
38. It appears that learned District Judge without applying his judicial mind, in non speaking order, rejected the application.
39. Mr. Mozammel Hossain, learned Advocate, appearing for the petitioners, canvassed before us the ground that 'since the subject matter of Title Execution Case No. 02 of 2002 and subject matter of Title Suit No. 09 of 2005 being identical, it is necessary to hear by one Court, otherwise Title execution Case No. 02 of 2002 and Title Suit No. 09 of 2005 might have ended in conflicting decision and in that case, plaintiff petitioners, might have suffer irreparable loss and injury.
40. Mr. Tajul Islam Miajee, learned Advocate, appearing for the opposite parties opposes the prayer on the ground that if title execution case and title suit be tried analogously then it will take a long time for executing the decree sought to be executed though the execution case.
41. It is not denied that Title Suit No. 09 of 2005 is still pending seeking relief of the land covered by Execution Case No. 02 of 2002 as such if decree be executed, although law provides for recovery, then it will take a long course for getting back the land as such, we are of the view both Title Execution Case No.02 of 2002 and Title Suit No 09 of 2005 be disposed of by same court. Title Suit No. 09 of 2005 is withdrawn from the Court of learned Joint District Judge, 3rd Court. Comilla and it is placed before the Court of Joint District Judge 2nd Court, Comilla for disposal in accordance with law with Title Execution Case No. 2 of 2002
In the result, this rule i. e. Civil Revision No.3256 of 2005 is made absolute. No cost.
The impugned Order dated 7.08.2005 passed by the learned District Judge, Comilla in Miscellaneous case No. 43 of 2005 is set aside.
Send down the lower Court records at once. Communicated this order at once.