M. Tofazzal Ahmed Vs. Jashim Uddin Haydar Faruque, VI ADC (2009) 250

Case No: Civil Petition for Leave to Appeal No. 550 of 2006

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Ajmalul Hossain QC,Mr. Md. Abdul Momen Chowdhury,,

Citation: VI ADC (2009) 250

Case Year: 2009

Appellant: M. Tofazzal Ahmed

Respondent: Jashim Uddin Haydar Faruque

Subject: Wakf,

Delivery Date: 2007-11-5

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mohammad Fazlul Karim, J.
Md. Tafazzul Islam, J.
Md. Hassan Ameen, J.
 
M. Tofazzal Ahmed
……...........Petitioner
Vs.
Jashim Uddin Haydar Faruque
……….......Respondent
 
Judgment
November 5, 2007.
 
For restraining the defendants from trespassing into the suit land and demolishing the house, mosque and wall    constructed by the plaintiffs. …. (2)
The High Court Division refused to interfere with the concurrent findings of the facts arrived at by the Courts below specially the appellate Court of fact as there was no allegation of misreading and non-consideration of the materials on record…….(7)
 
Lawyers Involved:
Ajmalul Hossain, QC, Senior Advocate, instructed by Mahmuda Begum, Advocate-on-Record-For the Petitioner.
Abdul Momen Chowdhury, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record-For the Respondent.
 
Civil Petition for Leave to Appeal No. 550 of 2006.
(From the judgment and order dated 30th August, 2006 passed by the High Court Division in Civil Revision No. 51 of 2004)
 
JUDGMENT
 
Mohammad Fazlul Karim J.
 
The peti­tioner seeks Leave to Appeal against the judgment and order dated 30.08.2005 passed by the High Court Division in Civil Revision No. 51 of 2004 making the Rule absolute setting aside the judgment and order No. 16 dated 30.10.2003 passed by the Additional Judge, 2nd Court, Chittagong in Miscellaneous Appeal No. 276 of 2002 affirming of those dated 30.09.2002 passed by Waqf Administrator, Dhaka in E.G. Case No. 16832/ Chittagong.
 
2. The facts of the case, in short, are that the Waqf Administrator, Dhaka by order dated 30.09.2002 appointed Tofazzal Ahmed, Mutawalli Secretary of Waqf Estate and constituted and approved 13 member committee for 5 years.
 
3. Against which order Miscellaneous Appeal No.276 of 2002 was preferred by Jashimuddin Earuquee in the Court of District Judge, Chittagong. The Additional District Judge, Chittagong, after hearing the appeal on transfer to him has rejected the memo of appeal under Order VII Rule 11 of the Code of Civil Procedure. Against the said order of rejection of appeal, a revisional application was filed by the petitioner.
 
4. Abdul Momen Chowdhury, learned Advocate, appearing for the petitioner submitted that the impugned judgment and order of the High Court Division is wrong, improper, bad in law and without considering the real facts and circum­stances made the Rule absolute. The learned Advocate further submitted that the High Court Division ought to have considered that the appellant-petitioner-opposite party has no right to file any case of civil revision before the High Court Division complying the order of Waqf Administrator for handing over the charge to the Mutwalli to the petitioner and hence the impugned judgment and order of the High Court Division is liable to be set aside for the ends of justice. The learned Advocate further submitted that the High Court Division ought to have considered that against the order of Waqf Administrator initial case will be started as miscellaneous appeal in the Court of District Judge, miscellaneous appeal under Section 50 of Waqf Ordinance which memo of appeal any be treated as plaint of the case because which narrated the facts and as well as grounds of the case and the learned District Judge rightly dis­missed the appeal on the ground of main­tainability.
 
5. Ajmalul Hossain, QC, learned Counsel, appearing for the respondent submitted that there was an appeal before the Court of appeal below and under Order 7 Rule 11 of the Code of Civil Procedure the appeal was rejected.
 
6. It appears from the record that the impugned order has been passed in an appeal, preferred from an order of the Waqf Administrator, Dhaka, under Section 47 of the Waqf Ordinance. The order con­tained an order for handing over the office within specified time and the memo of appeal was rejected by the Court of appeal for non-compliance of the order as being not maintainable under Section 32 of the Ordinance for non-delivery of office. The impugned order was passed by the learned Additional District Judge under provision of order VII Rule 11 of the Code of Civil Procedure, which providing for rejection of the plaint. It also appears from the state­ment of the plaint that the plaint is also barred by law. A memo of appeal contains grounds only and there is no statement in the memo of appeal to the effect.
 
7. The High Court Division observed that the Court of appeal below committed seri­ous error of law in rejecting the memo of appeal under the provision of Order VII Rule 11 of the Code of Civil Procedure.
 
In view of the above, the submissions of the learned Advocate for the petitioner deserve no consideration.
 
Accordingly, the petition is dismissed without any order as to costs.
 
Ed.