Kohinoor Chowdhury Vs. Sree Kamada Ranjan Bhattacharja and others, VI ADC (2009) 488

Case No: Civil Petition for Leave to Appeal No. 275 of 2008

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Chowdhury Md. Zahangir,Tabarak Hossain,,

Citation: VI ADC (2009) 488

Case Year: 2009

Appellant: Kohinoor Chowdhury

Respondent: Sree Kamada Ranjan Bhattacharja

Subject: Specific Performance, Limitation, Procedural Law,

Delivery Date: 2008-11-23

 
Supreme Court
Appellate Division
(Civil)
 
Present:
MM Ruhul Amin CJ
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Md. Joynul Abedin J
Md. Abdul Matin J
 
Kohinoor Chowdhury
…………………..Petitioner
Vs.
Sree Kamada Ranjan Bhattacharja and others
…………….........Respondents
 
Judgment
November 23, 2008.

Code of Civil Procedure, 1908
Order 7, Rule 11
Specific performance of contract by way of re-conveying by the defendants the suit land in his favour on the averments that he was owner of the suit land by way of jote right and while in possession and enjoyment of the suit land he proposed to sell the same and the defendant No.1. ….. (2)
Since the suit was not filed before a court of wrong jurisdiction the plaintiff was not entitled to get the benefit of section 14 of the Limitation Act but the factual position is that the plaintiff filed the suit before a competent court of jurisdiction but praying wrong relief under the wrong advise of the learned Advocate for the petitioner and it is a settled principle of law that question of limitation is a mixed question of facts and law and needs to be settled only upon taking evidence and further in terms of the decisions  of the superior courts, a litigant should not suffer for wrong advise of his learned lawyer and so the plaintiff is entitled to get benefit of section 14 of the Limitation Act for condonation of delay consumed due to wrong advise of his lawyer. …. (5)
 
Lawyers Involved:
Tabarak Hossain, Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record-For the Petitioner
Chowdhury Md. Zahangir, Advocate-on-Record-For Respondent No.1.
Not represented-Respondent Nos. 2-4
 
Civil Petition for Leave to Appeal No. 275 of 2008.
(From the judgment and order dated 24.9. 2007 passed by the High Court Division in Civil Revision No. 4160 of 1999).
 
JUDGMENT
 
Md. Tafazzul Islam J.
 
This petition for leave to appeal is directed against the judgment and order dated 24.9.2007 of the High Court Division passed in Civil Revision No. 4160 of 1999 affirming judgment and order dated 22.7.1999 passed by the learned Assistant Judge, Sreemongal, Moulvibazar in Title Suit No.79 of 1998 rejecting the petitioner's application under Order 7 Rule 11 of the Code of Civil Procedure praying for rejec­tion of plaint.
 
2. The respondent No.1, as plaintiff, insti­tuted the above Title Suit No.79 of 1998 for specific performance of contract by way of re-conveying by the defendants the suit land in his favour on the averments that he was owner of the suit land by way of jote right and while in possession and enjoyment of the suit land he proposed to sell the same and the defendant No.1 agreed to purchase the same at a consider­ation of Tk. 5991/- and then the plaintiff executed a sale deed on 20.2.1974 and on the same date the defendant No.1 also exe­cuted an agreement of re-conveyance the suit land in favour of the plaintiff and accordingly the plaintiff delivered possession of the suit land in favour of the defen­dant No.1 but he, in violation of the terms and condition of the agreement of recon­veyance, transferred the suit land in favour of the defendant Nos.2 and 3 by a regis­tered kabalas dated 19.1.1979 and 30.6.1979; that the plaintiff on 30.10.1979 asked defendant No.1 along with defen­dant Nos. 2 and 3 for execution of deed of re-conveyance according to terms of the agreement of re-conveyance but the said defendants refused and that thereafter the plaintiff, upon the advice of his learned advocate Mr. Biroja Mohan Das of Sylhet, filed Title Suit No.103 of 1980 in the Court of First Munsif, Moulvibazar for khas possession of the suit land treating the deed of sale and re-conveyance as usufractuary mortgage and the suit, on transfer, was renumbered as Title Suit No.171 of 1983 of the Court of the Sreemangal Upazila and, after hearing, the suit was decreed. The defendant Nos.2 and 3 then preferred Title Appeal No.02 of 1984 which, after hearing, were dis­missed. The defendant Nos. 2 and 3 then moved the High Court Division and obtained Rule in Civil Revision No.217 of 1988 which, on transfer was renumbered as Civil Revision No.1318 of 1999 and after hearing the High Court Division upon setting aside both the judgment and decrees of the Courts below sent back the suit to the trial court on remand for fresh trial; thereafter after fresh hearing by judgment and decree dated 11.5.1993 the above suit was again decreed and there­after the defendant Nos. 2 and 3 filed Title Appeal No.42 of 1983 in the Court of District Judge, Moulvibazar who, after hearing, by judgment and decree dated 28.10.1993 allowed the appeal against which the plaintiff moved the High Court Division and obtained Rule in Civil Revision No.582 of 1994 and after hearing, the High Court Division discharged the Rule against which the plaintiff filed Civil Petition No. 867 of 1997 before the Appellate Division of Supreme Court and the Appellate Division, after hearing, by judgment and order dated 25.3.1981 dis­missed the same; the learned Advocate Mr. Biroja Mohan Das gave wrong advice for filing a suit for khas possession and he ought to have advised the plaintiff to file the suit for specific performance of con­tract; that the time spent for prosecution of earlier suit should be excluded under sec­tion 14 of the Limitation Act. The defen­dant No.2 filed an application for rejection of the plaint under order 7 Rule-11(d) of the Code of Civil Procedure for rejection of the plaintiffs on the averments that the cause of action arose on 30.10.1079 when the defendant No.1 refused to execute the deed of re-conveyance and admittedly the suit was barred by limitation and the plea of conconation condonation of delay on application of section 14 of the limitation Act was not available to the plaintiff.
 
3. The learned Assistant Judge, Sreemongal, upon hearing the parties, rejected aforesaid the application. Then the defendant petitioner then moved the High Court Division and obtained Rule in Civil Revision No.4160 of 1999 and after hearing, the High Court Division dis­charged the Rule.
 
4. We have heard the learned counsel, and perused the impugned judgment and order of the High Court Division and other con­nected papers.
 
5. As it appears the High Court Division discharged the Rule holding that admitted­ly the earlier suit was filed within time in a court of competent jurisdiction but since wrong relief was sought the suit ended unsuccessfully up to the Appellate Division and that the plaintiff proceeded with the earlier suit bonafidee with due diligence and in good faith and he under the advise of his lawyer instead of filing the suit for specific performance of con­tract wrongly filed the suit for redemption of the suit land from usufructuary mort­gage and that the plaintiff have categori­cally pleaded in his plaint that he proceed­ed with the earlier suit under the wrong advise of his learned Advocate and that though the learned Advocate for the defendant petitioner contended before the High Court Division that since the suit was not filed before a court of wrong jurisdiction the plaintiff was not entitled to get the benefit of section 14 of the Limitation Act but the factual position is that the plaintiff filed the suit before a competent court of jurisdiction but pray­ing wrong relief under the wrong advise of the learned Advocate for the petitioner and it is a settled principle of law that question of limitation is a mixed question of facts and law and needs to be settled only upon taking evidence and further in terms of the decisions of the superior courts, a litigant should not suffer for wrong advise of his learned lawyer and so the plaintiff is enti­tled to get benefit of section 14 of the Limitation Act for condonation of delay consumed due to wrong advise of his lawyer.
 
6. We are of the view that the High Court Division on proper consideration of the materials on record arrived at a correct decision and there is no illegality or infir­mity in the above decision so as to call for any interference.
 
The petition is dismissed.
 
Ed.