Md. Abul Kashem Vs. Md. Shohidullah and others, (Md. Moinul Islam Chowdhury, J.)

Case No: Civil Revision No. 465 of 2017

Judge: Md. Moinul Islam Chowdhury, J

Court: High Court Division,

Advocate: Mr. Md. Helaluddin Mollah, with Mrs. Syeda Farah Helal, Advocates, Mr. Aminuddin, with Mr. Amit Das Gupta, Advocate,

Citation: 2019(1) LNJ

Case Year: 2019

Appellant: Md. Abul Kashem

Respondent: Md. Shohidullah and others

Subject: Code of Civil Procedure

Delivery Date: 2017-07-12

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Moinul Islam Chowdhury, J

 

Judgment on

07.12.2017

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Md. Abul Kashem

. Applicant-Petitioner

-Versus-

Md. Shohidullah and others

. . . Respondent-Opposite party

Code of Civil Procedure (V of 1908)

Order 1, Rule 10 (2)

A civil court may add any party, if it appears to the court to be just as being a necessary party in order to enabling the court effectively and completely to be adjudicated and settled upon the question involved in the suit.      . . . (11)

Mr. Md. Helaluddin Mollah, with

Mrs. Syeda Farah Helal, Advocates  

. . . For the Petitioner

Mr. Aminuddin, with

Mr. Amit Das Gupta, Advocate

. . . For the Opposite Party Nos.1 & 2

JUDGMENT

Md. Moinul Islam Chowdhury, J. At the instance of the applicant-petitioner, Md. Abul Kashem, a Leave has been granted and also a Rule has been issued calling upon the opposite parties to show cause as to why the impugned judgment and order dated 30.01.2017 passed by  the learned Additional District Judge, 5th court, Dhaka in Civil Revision No.189 of 2016 rejection the revisional application for addition of party and thereby affirming the judgment and order dated 04.08.2016 passed by the learned Senior Assistant Judge, 6th court, Dhaka in the Title Suit No.64of 2016 should not be set aside.

2.             The relevant facts for disposal of this Rule, inter-alia, are that the present plaintiff-opposite parties as the plaintiffs filed the Title Suit No.64 of 2016 in the court of the learned Senior Assistant Judge, 6th court, Dhaka for a decree of mandatory injunction to allot the shops situated in the multi storied market building in the Gulistan Kaptan Bazar Area as the members of the Hossain Shohid Shohrawardi Hawkers Market Malik Samity after registering with the Registrar of Trade Union on 08.07.1978  being No.1394/1978. The said suit was filed against the Mayer, Dhaka South City Corporation and others. The said suit is pending for disposal by the learned trial court. During pendency of the said suit, the present-applicant-petitioner filed an application under Order1 Rule 10(2) of the Code of Civil Procedure for addition of party as the defendant. 

3.             The application for addition of party contains that due to removal of market from Fulbaria to Kamalapur and due to construction of a multistoried market building, Dhaka City Corporation published an advertisement in the Daily News Paper known as Ittefaque on 07.08.1965 for allotment of shops, accordingly, Hossain Shohid Shohrawardi Dokan Malik Samity (the Samity) presented a list of members for allotment in the year of 1989-1990 and deposited Taka 1,00,000/-. However, the corporation failed to allot any shop to the members of the Samity for a long period of time. Against the delay in allotting the shops by the corporation, different members of the said Samity filed different Writ Petitions being Writ Petition No.6654 of 2009, Writ Petition No.5287 of 2009, Writ Petition No.7984 of 2009, and Writ Petition No.7904 of 2007 and those were heard together and disposed of on 26.11.2014 by this Court by giving common a direction to the Dhaka City Corporation for allotting the shop as per provision of law. Even after the aid direction from this Court, the corporation as the party in the Writ Petitions filed three Civil Petitions for Leave to Appeal in the Hon’ble Appellate Division of the Supreme Court of Bangladesh, which were dismissed by the Appex Court, therefore, the High Court Division direction remained operative. Despite the above direction, the corporation failed to allot any shop in favour of the members of the present-applicant-petitioner but the present-opposite parties as the plaintiffs filed the suit seeking a mandatory injunction for allotment of shop, therefore, as per direction of this Court in the Writ Petition, the present-applicant-petitioner is a necessary and relevant party to be added in the said suit as a defendant in order to assist the court.  

4.             After hearing the parties the learned trial court rejected the application by passing the judgment and order dated 04.08.2016. Being aggrieved the present-petitioner filed the Civil Revision No.189 of 2016 which was heard by the learned Additional District Judge, 5th court, Dhaka who by the impugned judgment and order disallowed the application filed under Section 115(2) of the Code of Civil Procedure by affirming the judgment of the trial court. This revisional application has been filed under Section 115(4) of the Code of Civil Procedure and this Rule has been issued thereupon.  

5.             Mr. Md. Helal Uddin Mollah, the learned Advocate appearing along with Mr. Salim Ahmed for the petitioner submits that both the courts below misread the application for addition of party and misconstrued the submissions made by the present-applicant-petitioner in the court below thereby came to a wrongful conclusion to reject the application concurrently, as such, the Rule should be made absolute. 

6.             The learned Advocate also submits that there are sufficient grounds on record for the applicant-petitioner to be added as the defendant because the petitioner is a necessary party in the suit but the learned court below did not consider that the applicant-petitioner was a party in this Court and also in the Appex Court but erroneously decided the applicant-petitioner was not a necessary party, as such, the impugned order is to be set aside, as such, the Rule should be made absolute.

7.             The Rule has been opposed by the present-opposite parties contending, inter-alia, that as per the direction passed by the High Court Division the Samity of the plaintiff filed the members list before the Ministry of Labour for its approval and the Registrar of Trade Union found that the members list filed by the plaintiff’s Samity was true. However, after that the City Corporation was not taking any action for allotting the suit shops, as such, the cause of action arose on 13.04.1985 later on 26.11.2012 and lastly on 23.11.2015, hence the suit for mandatory injunction claiming all remedies against the City Corporation.

8.             Mr. A. M. Aminuddin, the learned Advocate, appearing along with the learned Advocate Mr. Amit Das Gupta for the opposite party, submits that the learned trial court properly considered the application for addition of party and the submissions of the learned Advocates and came to a lawful decision to reject the application and the learned revisional court below also considered that the present applicant-petitioner was not a necessary and relevant party to be added as his addition would cause complications in the disposal of the suit, therefore, the courts below committed no error of law and, therefore, no interference from this Court is called for.

9.             The learned Advocate further submits that the plaintiff-opposite parties are the ordinary and general members of the Samity, who sought relief from the civil court as per  direction  in the writ petition filed by other members of the Samity, wherein the present-applicant-petitioner contested the suit as the respondent, therefore, the present-applicant-petitioner does not have any interest in remedy sought by the plaintiffs because the suit will be effectively and completely adjudicated by the learned trial court by settling the disputes between the present-opposite parties and the Dhaka City Corporation but this Rule has been obtained by misleading the court and the Rule should be discharged.  

10.         Considering the above submissions made by the learned Advocates appearing for the respective parties and also considering the revisional application filed under Section 115(4) of the Code of Civil Procedure along with Annexures therein, in particular, the impugned judgment and order passed by the learned revisional court below,  it appears to me that the present-opposite parties as the plaintiffs filed the  title suit with a prayer for decree of mandatory injunction to allot suit shops in Gulistan Kaptan Bazar Area  under the name and style of Hossain Shohid Shohrawardi Hawkers Market Malik Samity  by the present defendant-opposite party No.3, Dhaka South City Corporation, Dhaka. During pendency of the said suit, the present-applicant-petitioner filed an application for addition of party under Order 1, Rule 10(2) of the Code of Civil Procedure as being the President of the said Samity. The applicant-petitioner contended that having been obtained a direction from this Court in the Writ Petitions they became a necessary party in the suit filed by the present-plaintiff-opposite parties, however, the present opposite parties contended that the applicant-petitioner was not a necessary party because the cause of action of the suit arose on 13.04.1983, thereafter, on 26.11.2012 and lastly on 23.11.2015, when the corporation failed to allot shop as per the recommendation of the Ministry of Labour and preparation of a allottees lists by the Registrar of the Trade Union.

11.         In view of the above conflicting factual aspects, I consider that the present-plaintiff-opposite parties file the suit for the particular relief against the defendant who are the Dhaka City Corporation and the secretary, Ministry of Local Government of Rural Development. I am satisfied that the learned trial court can settle the disputes between the plaintiffs and defendants of the Title Suit No.64 of 2016 on the basis of the plaint and the written statement already submitted in the court wherein the present-applicant-petitioner has no cause of action or necessity for settling the dispute between the plaintiffs and defendants in the said suit. Under Order 1, Rule 10(2) of the Code of Civil Procedure a civil court may add any party, if it appears to the court to be just as being a necessary party in order to enabling the court effectively and completely to be adjudicated and settled upon the question involved in the suit.

12.         The present-applicant-petitioner claimed himself as the President of the Samity and the President and obtained a direction from this Court in the Writ Petitions in its favour. However, the present-plaintiff-opposite parties have every right to claim any remedy as the individual members of the Samity if the President could not settle the matter of allotment for a long period of time with the Corporation, therefore, the present-applicant-petitioner as the President of the Samity is not a necessary party in the matter as it is not a process of the Samity but the individual members of the market pursuing their own cause. Moreover, the present-applicant-petitioner as the President has already got a direction in favour of the process of the Samity but the present-applicant-petitioner could not perform his responsibility to give any relief sought in the suit by way of settling the matter with the corporation. I, therefore, consider that any addition of the present-applicant-petitioner would certainly delay the disposal of the suit pending in the trial court which would not be justifiable to be effectively and completely adjudicated and settled the matters of the suit, therefore, the present-applicant-petitioner is not necessary and relevant party.

13.         Now I am inclined to examine the findings of the learned courts. The learned trial court considered and rejected the application on the basis of the following finding:-

­j¡L¡Ÿj¡l k¡ha£u fË¢aL¡l ¢p¢Y Ll­f¡­ln­el ¢hl²­Ÿ ab¡¢f haÑj¡e clM¡Ù¹L¡l£ ®Le fri¨J² q­a Q¡e a¡ ÖfÖV euz AH ®j¡L¡Ÿj¡u HC clM¡Ù¹L¡l£l fri¨J² qJu¡l BCeNa p¤­k¡N e¡C j­jÑ j­e L¢lz

         The learned appellate court concurrently found against the present-applicant-petitioner on the basis of the following lawful finding:-

­k­qa¥ h¡c£fr fË¢afràu p¢j¢al f­r ¢hh¡c£l ¢hl²­Ÿ ®cJu¡e£ 64/16 ew j¡jm¡¢V c¡­ul L­l­R Hhw clM¡Ù¹L¡l£ E­õ¢Ma p¢j¢al HLSe ®~hd pcpÉ ®p­qa¥ h¡c£ fË¢afràu ®L¡e  fË¢aL¡l ®f­m a¡l p¤¢hd¡ ¢l¢ineL¡l£ fË¡ç q­hz a¡R¡s¡ j§m j¡jm¡¢V ¢e­cÑn¡aÁL ¢X¢H²l fË¡bÑe¡u j¡jm¡ qJu¡u clM¡Ù¹L¡l£l fri¨¢J²l ®L¡e L¡lZ e¡Cz jq¡j¡eÉ p¤fË£j ®L¡­VÑl ¢e­cÑ­nl B­m¡­L j§m j¡jm¡¢V Ll¡ q­u­Rz L¡­SC j§m j¡jm¡l clM¡Ù¹L¡l£l fr A¿¹Ñi¨¢J²l ®L¡e BhnÉLa¡ e¡Cz hlw clM¡Ù¹L¡l£ j§m j¡jm¡u fri¨J² q­m e¡e¡ S¢Vma¡l pª¢ÖV q­a f¡­lz

14.         In view of the above discussions and also after perusal of the impugned judgment and order concurrently passed by the courts below, in particular, the revisional court below I do not consider that the courts below committed any error of law. I am, therefore, not inclined to interfere into the impugned judgment and order passed by the learned appellate court.

         Accordingly, I do not find merit in the Leave granting order and the Rule. 

         In the result, the Leave granting order is rejected and the Rule is discharged.

15.         The ad-interim order of stay granted at the time of issuance of the Rule upon all further proceedings of the Title Suit No.64 of 2016 pending in the court of learned Senior Assistant Judge, 6th court, Dhaka is hereby recalled and vacated.

         The office is directed to communicate this judgment and order to the concerned court immediately. 

Ed.



Civil Revision No. 465 of 2017