Md. Harunur Rashid Vs. Md. Delowar Hossain 2018 (1) LNJ 04

Case No: Civil Revision No. 3427 of 2016

Judge: Kashefa Hussain. J.

Court: High Court Division,

Advocate: Mr. Moudud Ahmed, Mr. Faisal Hossain Khan,

Citation: 2018 (1) LNJ 04

Case Year: 2017

Appellant: Md. Harunur Rashid

Respondent: Md. Delowar Hossain

Subject: Civil Law

Delivery Date: 2018-02-15

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

S. M Emdadul Hoque , J.

And

Kashefa Hussain, J

Judgment on

08.06.2017

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Md. Harunur Rashid

. . . Petitioner

-Versus-

Md. Delowar Hossain

. . . Opposite party.

Code of Civil Procedure (V of 1908)

Order XXII, Rule 10

Constitution of Bangladesh

Article 111

The Respondent No.4 in Writ Petition No. 821 of 2002 was added as party. He was a purchaser from the petitioner. It is stated that he has purchased the property from the petitioner as per law. Under Order 22 Rule 10 of the Code of Civil Procedure he is an assignee. In view of the above he will get the benefit of this judgment as he has stepped into the shoe of the petitioner. It is admittedly evident from the plaint that the plaintiff opposite party before us did not take any initiatives to file an appeal before the appellate division against the judgment and order in Writ petition No. 821 of 2002. Needless to say that under Article 111 of the constitution in the absence of any appeal the judgment and order of the High Court Division in Writ petition No. 821 of 2002 is binding on all courts.                                               . . .(14 and 15)

Code of Civil Procedure (V of 1908)

Order VII, Rule 11

If the ultimately result of the suit is clear from plaint itself, and that it stands no chance on merit the suit should be buried in its inception. Since the issue before us is against an application for rejection of plaint we need not delve into facts, statements or averments made beyond the plaint and it is our duty to be confined to the plaint itself.                                                . . .(19 and 20)

Abdul Jalil Vs. Islami Bank Bangladesh Ltd. and another, 53 DLR (AD) (2001) 12; Abdul Jalil and others Vs. Islami Bank Bangladesh Ltd., 64 DLR (AD) 107; Chairman Rajuk Vs. Abul Hossain, 50 DLR (1998) 249; Md. Shahjahan Siraj Vs. Md. Rafique Quoraishi, 2 ALR (AD) (2013) 202; Md. Shahjahan Siraj Vs. Md. Rafique Quoraishi, 19 BLC (AD) (2014) 143; Mahbubul Haque Vs. Md. A Kader Munshi, 52 DLR (AD) (2000) 49 and Sreemati Pushpa Rani Das and another Vs. A. K. M Habibur Rahman and others, 13 BLD (AD) 217 ref

Mr. Moudud Ahmed, Senior Advocate with

Mr. M. Quamrul Haque Siddique, Senior Advocate with                    

Mr. Ashek-e-Rasul, Advocate with

Mrs. Ferdous Ara Begum, Advocate with

 Mrs. Farhana Islam, Advocate

. . .For the Petitioner.

Mr. Faisal Hossain Khan, Advocate with

Mr. Md. Moinuddin, Advocate with

Mr. A.S.M Moniruzzaman, Advocate

. . . For the opposite party.

JUDGMENT

Kashefa Hussain, J: Rule was issued in the instant Civil Revisional Application calling upon the opposite-party No.1 to show cause as to why the impugned order being No. 25 dated 07.02.2016 passed by the learned Joint District Judge, 3rd Court, Dhaka in Title Suit No. 167 of 2014 rejecting the application under Order 7 Rule 11 of the Code of Civil Procedure filed by the defendant-petitioner should not be set aside and/ or such other or further order or orders passed as to this court may seem fit and proper.

2.            Facts relevant for disposal of the Rule in short is that the opposite party as plaintiff instituted Title Suit No. 167 of 2014 seeking for a declaration that he is the 16 annas owner of the schedule land that the judgment and decree passed in Title Suit No. 64 of 2004 is ineffective illegally and invalid title deed No. 169 dated 07.07.2007 is without consideration, false, forged etc. In Title Suit No. 167 of 2014 the defendant petitioner before us prayed for rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure. After hearing, the trial court below rejected the application of the defendant under Order 7 Rule 11 of the Code of Civil Procedure by judgment dated 07.02.2016.

3.            Being aggrieved by the judgment and decree dated 07.02.2016 the defendant in Title Suit No. 167 of 2014 as petitioner preferred the instant Civil Revisional application which is at present before us for disposal.

4.            The facts stated in the plaint inter alia in short is that the suit land originally belonged to the grandfather of the plaintiff opposite party No. 1 and the after his grandfather’s death in 1971, the suit land devolved upon the plaintiff’s father as his legal heir and successor. It is stated in the plaint that the plaintiff’s father was compelled to vacate his home during the liberation war in 1971 for purpose of safety. The property was declared as abandoned property due to operation of P.O 16 of 1972 and thereafter the plaintiff’s father made number of representations to the government for releasing the said property from the list of abandoned property but despite the applications there was no positive response from the concerned authorities.

5.            However, at one stage on 13.09.1999 the plaintiff in pursuance of trying to releasing his property from the abandoned property list went to the office of the defendant No. 3 Assistant commissioner of Land and then discovered that the predecessor of the defendant No. 2 in Title Suit No. 167 of 2014 had filed Title suit No.115 of 1989 for declaration and specific performance of contract making the plaintiff and his mother defendant. It is stated in the plaint that the Title Suit No. 115 of 1989 was instituted and judgment and decree which was given in Title Suit No. 115 of 1989 dated 08.07.1999 was obtained fraudulently through false impersonation and that the plaintiffs were unaware of the suit. The plaintiff came to learn about the Title Suit No. 115 of 1989 for the first time on 13.09.1999. The plaintiff opposite party have stated in the plaint that the baina patra claimed in Title suit No. 115 of 1989 was actually a forged baina patra and beyond the knowledge of the plaintiff and his predecessor and that no contract or agreement was ever entered into for selling the suit land to the defendant.

6.            It is further stated in the plaint that against the judgment and decree dated 08.07.1999 M/S Iman Dock-Yard Engineering Industries Limited filed F.A. No. 118 of 2000 before the High Court Division and Government of Bangladesh as appellant also filed another First Appeal being F.A. No. 14 of 2001 before the High Court Division. Both of the appeals were dismissed upto the Appellate Division and consequently the judgment and decree dated 08.07.1999 passed in Title Suit No. 115 of 1989 was affirmed. It is also stated in the plaint that the defendant in Title Suit No. 167 of 2014 also filed an execution case arising out of the judgment and decree in Title Suit No. 115 of 1989 dated 08.07.1999 and the defendant No. 2 and his mother was substituted in the place of Sharif Ullah Patwary who had died in the meanwhile. They were substituted in the decree execution case through Order No. 13 dated 14.09.2003 and upon an application of the defendant, the trial court also issued the cMm£ f­l¡u¡e¡ dated 13.04.2005.  It is also stated in the plaint that subsequently the plaintiffs opposite party before us filed a Writ petition being W.P. No. 821 of 2002 before the High Court Division challenging the inclusion of the property in the ‘Ka’ list of the abandoned property of the government. It is also stated in the plaint that the writ petitioner being defendant petitioner in this case were added as respondent No. 4 in Title Suit No. 167 of 2014. After hearing of Writ Petition No. 821 of 2002 this Division made the Rule Absolute by judgment dated 28.10.2009 with some observations and directions and which was also reproduced in the plaint which reads as follows:

“The respondent No. 4 in Writ Petition No. 821 of 2002 was added as party. He was a purchaser from the petitioner. It is stated that he has purchased the property from the petitioner as per law. Under order 22 Rule 10 of the Code of Civil Procedure he is an assignee. In view of the above he will get the benefit of this judgment as he has stepped into the shoe of the petitioner.”

7.            It is also revealed from the plaint that ultimately by dint of and in compliance of the judgment in Writ Petition No. 821 of 2002 the office of the defendant No. 3 refused to mutate the property in the name of the plaintiff. It is further stated in the plaint that the office of the defendant No. 3 also disclosed to the plaintiff that the defendant No. 1 had purchased the suit land and obtained possession through court and consequently the defendant No. 4 under his signature approved the mutation of the property in the name of defendant No. 1. The plaint also states that subsequently through course of events a contract was executed for sale of the property but the plaintiff claims that the contract document was a fraudulent and false document and no agreement or agreements were ever entered into between the plaintiff’s predecessor and the defendant whatsoever. Since the property was in the list of abandoned property therefore no lawful agreement for sale could have been legally entered into by the said Sharif Ullah Patwary.   

8.            Learned Senior Counsel Mr. Moudud Ahmed, Senior Counsel Mr. M. Quamrul Haque Siddique along with Mr. Ashek-e-Rasul, Mrs. Ferdous Ara Begum and Mrs. Farhana Islam, Advocates appeared for the petitioner while learned Advocate Mr. Faisal Hossain Khan along with Mr. Md. Moinuddin and Mr. A.S.M Moniruzzaman, Advocates represented the opposite parties.

9.            Learned senior Advocate Mr. M. Quamrul Haque Siddique for the defendant-petitioner submits that the Trial Court below unjudiciously upon misapplication of mind rejected the application under Order 7 Rule 11 for rejection of plaint causing travesty of Justice. In support of his submissions he asserts that from a mere reading of the plaint it is clear that the judgment and decree dated 08.07.1999 passed in Title Suit No. 115 of 1989 is final and the judgment and decree was affirmed upto the Appellate Division and hence Title Suit No. 167 of 2014 is barred by the doctrine of res-judicata. He draws our attention to the fact that the plaintiffs admittedly in the plaint gained knowledge of the judgment and decree dated 08.07.1999 passed in Title Suit No. 115 of 1989 around 13.09.1999, that is barely after 2(two) months of the judgment and decree in Title Suit No. 115 of 1989. He points out that inspite of gaining knowledge of the judgment and decree the plaintiff opposite party did not take any step for filing an Appeal against the said judgment and decree in Title Suit No. 115 of 1989. Hence there is no scope of raising or reopening the issue in any other forum whatsoever. He also draws our attention that the plaintiff had subsequently filed Title Suit No. 101 of 2002 against some of the defendants in the instant suit inter alia seeking declaration of Title that the judgment and decree in Title Suit No. 115 of 1989 is ineffective illegal and invalid. But, he submits that ultimately the plaintiff upon an application to withdraw the said suit under Order 23 rule 1 of the Code of Civil Procedure without taking any permission from the trial court to file a fresh suit withdrew the Title Suit No. 101 of 2002. Learned senior counsel assails that the withdrawal of the suit under order 23 Rule 1 of the Code of Civil Procedure without permission to file a fresh suit itself acknowledges the validity of the Judgment and Decree passed in Title Suit No. 115 of 1989 and contends that consequently taking these factors into consideration there is no scope for the plaintiff-opposite parties to raise or reopen the case by filing a fresh suit whatsoever.

10.        He further continues that notwithst-anding any other issues the plaintiff is debarred from filing the instant suit since no permission to file a fresh suit was obtained by the plaintiff while withdrawing the earlier suit being Title Suit No. 101 of 2002. He contends that the suit is barred by the doctrine of res-judicata and the plaintiff is also esstopped by the judgment from filing any fresh suit. He concludes his submission upon assertion that the court can also reject the plaint under its inherent power under Section 151 of the Code of Civil Procedure by dint of the decision in Writ Petition No. 821 of 2002. He takes us to the Judgment in Writ Petition No. 821 of 2002 where from he places reliance to the effect that in that decision the High Court Division in its Judgment issued order and direction that the instant petitioner will get the benefit as he has stepped into the shoe of the petitioner under Order 22 rule 10 of the Code of Civil Procedure as an assignee. In support of his submissions he cited two decisions reported in 53 DLR(AD)(2001) 12 in the case of Abdul Jalil Vs. Islamic Bank Bangladesh Ltd. and another 64 DLR(AD)107 in the case of Abdul Jalil and others Vs. Islami Bank Bangladesh Ltd.

11.        Learned Senior Counsel Mr. Moudud Ahmed on behalf of the petitioner takes us through the plaint and tries to focus our attention on the direction and order of the High Court Division in Writ Petition No. 821 of 2002. He takes us to the order itself and submits that it is crystal clear from the order that the High Court Division in that Writ Petition recognised and acknowledged the title of the present petitioner in the schedule property. He further contends that given that the plaintiff opposite parties were aggrieved by the judgment and order of the High Court Division in Writ Petition No. 821 of 2002 but yet they never took any initiative or steps to file an appeal in the Appellate Division against the High Court Division decision in assigning the petitioner as assignee under Order 22 Rule 10 of the Code of Civil Procedure. Learned Advocate persuades that in absence of an appeal against the judgment and order of the High Court Division, consequently the judgment in Writ Petition No. 821 of 2002 is binding upon all courts under article 111 of the constitution. In support of his contention he also cited a decision reported in 50 DLR (1998) 249 in the case of Chairman Rajuk Vs. Abul Hossain where he draws our attention to the principle laid down that a question decided in a writ disposed of on merit cannot be reasserted subsequently between the same parties on the principle of res-judicata.

12.        In consonance with his submission Learned senior counsel Mr.  Moudud Ahmed also cited a decision based on the principle of the inherent power of the courts under section 151 of the Code of Civil Procedure. Citing a decision in the case of Md. Shahjahan Siraj Vs. Md. Rafique Quoraishi reported in 2 ALR (AD)(2013) 202, Learned Counsel Mr. Moudud Ahmed also pressed the fact that in the counter affidavit dated 27.03.2017 filed by the plaintiff opposite party No. 1 made a statement that he did not file Title Suit No. 101 of 2002 and has no nexus with the said suit and that the parties of the Title Suit No. 101 of 2002 and Title Suit No. 167 of 2014 are different as because some fake Delowar Hossain filed the Title Suit No. 101 of 2002. He contends that this contradictory statement and inconsistency is an outright departure from his earlier statement admitting to the filing of Title Suit No. 101 of 2002 which  expressly reveals that the petitioner have not come in clean hands. 

13.        On the other hand learned Advocate Mr. Moinuddin Ahmed   on behalf of the opposite party submits that the Trial court correctly rejected the application under order 7 Rule 11 of the Code of Civil Procedure given that the issues raised in the plaint are mixed questions of law and fact which needs to be decided upon proper trial adducing evidence and witnesses. He also contends that the issue of res-judicata cannot be decided without framing issues and the court cannot come into an appropriate finding without the case having gone through a proper trial. In support of his submissions he cited before us a few decisions including the decisions in the case of Shahjahan Siraj Vs Rafique Quoraishi reported in 19 BLC (AD)(2014) 143 and in the case of Mahbubul Haque Vs. Md. A Kader Munshi reported in 52 DLR(AD)(2000) 49 and also in the case of Sreemati Pushpa Rani Das and another Vs. A.K.M Habibur Rahman and others reported in 13 BLD(AD) 217. He draws our attention mainly upon the common principle laid down in these decisions that question of res-judicata is a matter of fact and needs to be decided upon framing issues pursuant to a proper trial. He concludes his submissions that the Trial court having correctly rejected the application under Order 7 Rule 11 of the Code of Civil Procedure consequently the Rule bears no merit and ought to be discharged for ends of justice.

14.        We have heard the learned Advocates from both sides, perused the application, materials on record before us including the judgment and decree of the trial court and particularly the plaint itself. Now, from a mere perusal of the plaint it appears that in the plaint itself it is an admitted fact that existence of  the judgment and decree in Title Suit No.115 of 1989 dated 08.07.1999 is also admitted in the statement made in the plaint. It is also admitted in the plaint that the plaintiff opposite party came to know and gained knowledge about the Title Suit No. 115 of 1989 around 13.09.1999, however it is also clear from the plaint that the plaintiff did not take any step to file an appeal even, given that the plaintiffs were an aggrieved party in Title Suit No. 115 of 1989 through the judgment and order dated 08.07.1999 pursuant to gaining knowledge within barely two months of the Judgment and Decree dated 08.07.1999 in Title Suit No. 115 of 1989, but yet they did not take any steps to file an appeal against the judgment and decree before the High Court Division. However, it is also clear from the plaint itself that other aggrieved parties filed two First Appeals before the High Court Division respectively and which was ultimately dismissed upto the Appellate Division and therefore evidently the judgment and decree passed in Title Suit No. 115 of 1989 dated 08.07.1999 stands valid and effective. It is also revealed from the plaint that a judgment was passed in Writ Petition 821 of 2002 in which the High Court Division positively gave direction to the concerned authorities to assign the instant petitioner as assignee under Order 22 Rule 10 of the Code of Civil Procedure and the High Court Division has also made observations and directions that the instant petitioner will get the benefit of the judgment having stepped into the shoes of the Writ Petitioners in Writ Petition No. 821 of 2002 being the plaintiff-opposite party in the case before us. The relevant portion of the judgment of the High Court Division is reproduced below:

“The respondent No. 4 in Writ Petition No. 821 of 2002 was added as party. He was a purchaser from the petitioner. It is stated that he has purchased the property from the petitioner as per law. Under order 22 Rule 10 of the Code of Civil Procedure he is an assignee. In view of the above he will get the benefit of this judgment as he has stepped into the shoe of the petitioner.”

15.        It is also admittedly evident from the plaint that the plaintiff opposite party before us did not take any initiatives to file an Appeal before the Appellate division against the judgment and order in writ petition No. 821 of 2002. Needless to say that under article 111 of the constitution in the absence of any appeal the judgment and order of the High Court Division in Writ Petition No. 821 of 2002 is binding on all courts.

16.        On the point of res-judicata, the learned Advocate for the opposite party made submission that the issues of res-judicata is a mixed question of law and facts and needs to be proved or disproved approved upon framing issues and adducing evidence. In this context he has cited few decisions before us. Our considered finding against this argument of the learned Advocate for the opposite party is that in this case the matter need not be taken any further since it is evident from the plaint itself that the matter regarding the Title to the property and other relief has been settled through the Judgment and Decree dated 08.07.1999 in Title Suit No. 115 of 1989. And it is also evident that the opposite party never took any initiative to file any appeal against the judgment and decree in Title Suit No. 115 of 1989. We have also taken ourselves to the decision cited by the learned Advocate for the petitioner in the case of Abdul Jalil and others Vs. Islamin Bank Bangladesh Ltd and others reported in 53 DLR(AD)(2001) 12; where for our purposes 2(two) principles are significant in this case which are reproduced below:

“It is well settled that where a plaint cannot be rejected under Order 7 Rule 11 Code of Civil Procedure the court may invoke its inherent jurisdiction and reject the plaint taking recourse to Section 151 of the Code of Civil Procedure.”

17.        And also the principle that:

“As the ultimate result of the suit is as clear as daylight such a suit should be buried at its inception so that no further time is consumed in fruitless litigation.”

18.        We have also perused the principle laid out in the case of Md. Shahjahan Siraj Vs. Md. Rafique Quoraishi and others reported in 2 ALR (AD) (2013) 202 where similar principle was taken that a plaint can be rejected under Section 151 of the Code of Civil Procedure in an appropriate case on the ground of res-judicata.

19.        Regarding the issues of the judgment and order in Writ Petition No. 821 of 2002 we have considered the decision cited by the learned senior Counsel Mr. Moudud Ahmed in the case of Chairman, Rajuk and others Vs. Abul Hossain and others reported in 50 DLR (1998) 249: where the principle laid out is reproduced hereunder:

“A question decided in a writ petition disposed of on merit cannot be reagitated in a subsequent suit between the same parties on the principle of re-judicata.”

20.        We are in respectful agreement with the decision of this Division cited in the 50 DLR case before us and we are of the considered view that  if the ultimately result of the suit is clear from plaint itself, and that it stands no chance on merit the suit should be buried in its inception. Regrettably in this suit the Trial court upon misapplication of mind did not consider the two most significant facts that the judgment and decree of Title Suit No. 115 of 1989 was not appealed against by the plaintiff and the fate of the suit was ultimately decided by the appellate Division upon appeal by other  aggrieved parties but without success. The Trial court also committed grave error in law and fact upon not comprehending that the Judgment and order in Writ Petition No. 821 of 2002 is binding upon it under the Article 111 of the Constitution. The Trial court failed to apply its mind that the High Court Division in that judgment issued positive direction to the effect of the present petitioner being beneficiary in the judgment in Writ petition No. 821 of 2002.

21.        The learned Advocate for the petitioner had contended on a point that the opposite party made inconsistent and self contradictory statements regarding the Title Suit No. 101 of 2002 given that in the counter affidavit dated 27.03.2017 the opposite party had denied and stated that they did not file Title Suit No. 101 of 2002 while in the affidavit in reply they controverted their earlier statement and admitted that they had filed title Suit No. 101 of 2002. However, upon this context our considered view is that since the issue before us is against an application for rejection of plaint we need not delve into facts, statements or averments made beyond the plaint and it is our duty to be confined to the plaint itself.  

22.        Be that as it may, under the facts and circumstances and considering the submission of the learned Advocates and upon perusal of the records and fortified by the decisions cited before us we find merit in the Rule.

23.        In the result, the Rule is made absolute and the impugned order being No. 25 dated 07.02.2016 passed by the learned Joint District Judge, 3rd Court, Dhaka in title Suit No. 167 of 2014 is hereby set aside and the plaint is hereby rejected.

24.        The order of stay granted earlier by this court is hereby vacated.

25.                   Send down the lower court records at once.

26.                   Communicate this judgment and order at once.

Ed.



Civil Revision No. 3427 of 2016