Md. Darul Islam Vs. Md. Tamijul Islam and others [4 LNJ (2015) 162]

Case No: Civil Revision No. 2148 of 2013

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Mr. Md. Taherul Islam,Mr. Abdullah Al Mahmood Chowdhury,,

Citation: Civil Revision No. 2148 of 2013

Case Year: 2015

Appellant: Md. Darul Islam

Respondent: Md. Tamijul Islam and others

Subject: Specific Performance,

Delivery Date: 2014-11-27

HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Sheikh Abdul Awal, J.
 
Judgment on
27.11.2014
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Md. Darul Islam being dead his heirs: 1. Most. Parul Bewa and others
. . . Defendant-Petitioners
-Versus-
Md. Tamijul Islam and others
. . . Plaintiff-opposite parties
 
Code of Civil Procedure (V of 1908)
Order VII, Rule
Plaint is the basis in deciding an application under Order VII, Rule 11 CPC
In deciding an application under Order VII, Rule 11 CPC the Court is not permitted to travel beyond the averments made in the plaint. … (12)
 
Specific Relief Act (I of 1877)
Section 21A
If a provision of law does not provide the consequence of its non-compliance, the provision is merely directory and not mandatory.
The balance amount of consideration of the contract is deposited in the Court at the time of filing of the suit for Specific Performance of Contract although, the provision of section 21A of the Specific Performance of Contract does not provide for the consequence, if the suit is filed without depositing  the balance amount of consideration of the contract   in the Court. Therefore, provision of section 21A is merely directory and not mandatory since there is no legal mandate to stop or dismiss the suit if balance amount of consideration of the contract is not deposited in the Court at the time of filing of the suit for Specific Performance of Contract.  ... (14)
 
Specific Relief Act (I of 1877)
Section 21A
If a litigant for any reason after taking permission from the Court filed the suit and later on he made the deposit of  the balance amount of consideration of the contract in the Court as per order of the Court,  in such case it cannot be said that the suit is barred by section 21A of the Specific Performance of Contract.     . . .(14)

Registration Act (XVI of 1908)
Section 17A
It is the positive case of the plaintiffs that as per terms and condition of the unregistered contract the plaintiffs went to the defendant No.1 in time for registration of kabala on taking the balance amount of Tk.90,000/- but the defendant finally denied to do the same on 28.02.2006 and in such circumstance, the question to present the unregistered contract for registration according to the provision of section 17A of the Registration Act by the plaintiffs does not arise at all. ...(14)

Mr. Md. Taherul Islam, Advocate
. . . For the petitioners.
Mr. Abdullah Al Mahmood Chowdhury, Advocate
. . . For the Opposite Party Nos. 1 & 2.

Civil Revision No. 2148 of 2013

JUDGMENT
Sheikh Abdul Awal, J:
 
This Rule was issued calling upon the opposite party Nos.1 and 2 to show cause as to why the impugned order dated 24.3.2013 passed by the learned Additional District Judge (in-charge), Dinajpur in Civil Revision No.79 of 2009 disallowing the revision and affirming the order dated 9.7.2009 passed by the learned Senior Assistant Judge, Sadar, Dinajpur in Other Class Suit No.58 of 2006 rejecting the application for rejection of the plaint should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.
 
Material facts of the case, briefly, are that on 13.3.2013 the opposite party Nos.1-2 as plaintiffs instituted a suit being Other Class Suit No.58 of 2006 for specific performance of contract in the Court of learned Senior Assistant Judge, Dinajpur. The plaintiff’s case in short is that the defendant No.1, Darul Islam (father of petitioner Nos.1-5) was the original owner of the suit land, who proposed to sell the suit land at Tk.2,05,000/- and accordingly a Bainanama was executed and signed on 30.6.2005 between the parties where it was mentioned that the balance amount of Tk.90,000/- would be paid within 15.3.2006 for executing and registering the kabala deed in favour of the plaintiffs. In this background  as per terms and condition of the Bainanama the plaintiffs went to the defendant No.1 in time for  registration of kabala on taking the balance amount of Tk.90,000/- but the defendant finally denied to do the same  on 28.02.2006 and hence, the suit.
 
The petitioner as defendant entered appearance in the suit and filed written statement denying all the material allegations of the plaint and also contended that the suit is barred by the provisions of section 21A of the Specific Relief Act and section 17B of the Registration Act. Immediately, after filing of the written statement the defendant Nos.1 and 2 filed an application under Order 7, Rule 11 of the Code of Civil Procedure for rejecting the plaint mainly on two counts that: (i) since balance amount of consideration of the contract is not deposited at the time of filing of the suit, the suit is barred by section 21A of the Specific Relief Act, (ii) the suit is barred by section 17B of the Registration Act as the bainanama was not presented for registration as per provision of section 17A of the Registration Act.
 
The learned Senior Assistant Judge, Dinajpur upon hearing the parties by order No.28 dated 01.7.2009 rejected the application in giving a direction upon the plaintiffs to deposit the balance amount of contract.
 
The defendant-petitioners, thereupon, preferred Civil Revision No.79 of 2009 before the learned District Judge, Dinajpur which was subsequently transferred to the Court of Additional District Judge (in-chrge), Dinajpur for disposal, who by the impugned judgment and order dated 24.3.2013 rejected the revision and affirmed the order of the trial Court.
 
Being aggrieved by the aforesaid judgment and order dated 24.3.2013 the present petitioners have come before this Court and obtained the present Rule.
 
Mr. Md. Taherul Islam, the learned Advocate appearing for the petitioners submits that both the Courts below without applying its judicial mind into the facts and circumstances of the case and law bearing on the subject most illegally disallowed  the prayer for rejection of the plaint and the same has occasioned failure of justice. Finally,  he submits that admittedly at the time of filing of the suit the plaintiffs did not deposit the balance consideration money and admittedly the plaintiffs did not or could not present the unregistered deed for registration  as per  mandatory provision of section 17A of the Registration Act and  in that view of the matter the suit is squarely barred by the provision of section 21A of the Specific Performance of Contract and section 17A  of the Registration Act.
 
Mr. Abdullah Al- Mahmud Chowdhdury, the learned Advocate appearing for the opposite party Nos.1 and 2, on the other hand, supports the impugned judgment and contends that both the courts below were perfectly justified in refusing the petitioners’ prayer for rejection of the plaint on the clear finding that in the facts and circumstances of the case the plaint is neither barred by section 21A of the Specific Performance of Contract nor barred by section 17A of the Registration Act.
 
I have heard the learned Advocates for both the sides and perused the revision application along with other materials on record as filed thereto including the impugned judgment and order dated 24.3.2013. The main point for consideration is, as already noticed, whether the courts below were right   in holding that the plaint of the suit is neither barred by section 21A of the Specific Performance of Contract nor barred by section 17A of the Registration Act.
 
On perusal of the record, it appears that on 13.3.2013 the opposite party Nos.1 and 2 as plaintiffs filed Other Class Suit No.58 of 2006 for specific performance of contract in the Court of Senior Assistant Judge, Sadar, Dinajpur and admittedly the plaintiffs at the time of filing of the suit did not deposit balance consideration amount of contract. The learned Senior Assistant Judge by his order No.28 dated 9.7.2009 rejected the application under Order 7, Rule 11 of the Code of Civil Procedure in giving a direction upon the plaintiffs to deposit the balance amount of consideration of the contract on 21.10.2009.
 
The revisional Court below in its turn by the impugned judgment and order dated 24.3.2013 affirmed the decision of the trial Court below on the finding that: “উভয় পক্ষের যুও্রিতর্কের আলোকে অন্য ৫৮/০৬ নং মামলার নথিসহ তর্কিত আদেশ ও সংশ্লিষ্ট আইন পর্যালোচনায় দেখা যায় যে, রেজিষ্ট্রেশন এ্যাক্ট  এর সংশোধীত ১৭এ ধারা ০১/৭/০৫ ইং তারিখ থেকে কার্যকর হয়z উও্র ধারার বিধানমতে উও্র ধারা কার্যকর হওয়ার পর ১ বৎসরের মধ্যে তথা অরেজিষ্ট্রিকৃত বায়নাপত্র রেজিষ্ট্রেশনের জন্য ৬ মাস সময় অতিবাহিতের এবং তারপর ৬ মাসের মধ্যে অর্থ্যাৎ ১৩/৩/০৬ ইং তারিখে মামলাটি দায়ের হওয়ায় মামলাটি আইনতঃ চলতে পারেz বিধায় বিজ্ঞ নিম্ন আদালত তর্কিত আদেশে বিস¹ারিত আলোচনা  রিভিশনকারী বিবাদীপক্ষের দাখিলী দেঃ কাঃ বিঃ ৭ আদেশ ১১ নিয়োমের দরখাস¹ নামনজুর করে আইনতঃ ভূল করেননি বলে বিবেচনা করা যায়”
 
This being purely a finding of fact based on correct evaluation of the facts and law. The proposition of law is by now well settled that in deciding  an application under Order VII, Rule 11 CPC  the Court is not permitted to travel beyond the averments made in  the plaint. To determine the truth of the mixed question of law and fact, evidence is necessary and this can be available only in the course of trial of the suit.
 
On a query by me the learned Advocate for the opposite parties submits that the plaintiffs have already been deposited the balance consideration of the contract as per direction of the trial Court below.
To meet the argument of the learned Advocate for the petitioners, I have carefully examined the provision of section 21A of the Specific Performance of Contract to the best of my ability and find section 21A(b) provides that the balance amount of consideration of the contract  is deposited in the Court at the time of filing of the suit for Specific Performance of Contract although, the provision of section 21A of the Specific Performance of Contract does not provide for the consequence, if the suit is filed without depositing the balance amount of consideration of the contract in the Court. My view is, therefore, that provision of section 21A is merely directory and not mandatory since there is no legal mandate to stop or dismiss the suit if balance amount of consideration of the contract is not deposited in the Court at the time of filing of the suit for Specific Performance of Contract. So, I find no difficulty in holding that, if  a litigant for any reason after taking permission from the Court filed the suit and  later on he made the deposit of  the balance amount of consideration of the contract   in the Court as per order of the Court,  in such case it cannot be said that the suit is barred by section 21A of the Specific Performance of Contract. Further, it is the positive case of the plaintiffs that  as per terms and condition of the unregistered contract  the plaintiffs went to the defendant No.1 in time for  registration of kabala on taking the balance amount of Tk.90,000/- but the defendant finally denied to do the same on 28.02.2006 and in such circumstance, the question to  present the unregistered contract for registration according to the provision of section 17A of the Registration Act by the plaintiffs does not arise at all. The contentions raised by Mr. Md. Taherul Islam for the aforesaid reasons are of no substance.
 
The learned Judge of the revisional court below appears to have considered all the material aspects of the case and justly upheld the order of the trial Court. I find no reason to interfere therewith. 
 
In the result, the Rule is discharged without any order as to costs. The order of stay granted earlier by this Court stands vacated.
 
Let a copy of this judgment be communicated to the Court’s concerned at once.
       
Ed.