Md. Jahedul Islam Bhuiyan Vs. Md. Abdul Rahim, (Md. Rezaul Hasan, J.)

Case No: Civil Revision No. 7 of 2017

Judge: Md. Rezaul Hasan, J

Court: High Court Division,

Advocate: Mr. Md. Abdul Haque, Advocate.,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Md. Jahedul Islam Bhuiyan @ Jahed Mia

Respondent: Md. Abdul Rahim and others

Subject: Code of Civil Procedure

Delivery Date: 2019-11-27

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Rezaul Hasan, J

 

Judgment on

09.12.2018

}

}

}

}

Md. Jahedul Islam Bhuiyan @ Jahed Mia

. . Petitioner

-Versus-

Md. Abdul Rahim and others

. . . -Opposite party.

Code of Civil Procedure (V of 1908)

Section 151

Order 47

A review of a decree or order or a decision essentially contemplates prior and complete adjudication of an issue on merit. While an order obtained by exercising fraud or any order which is the result of any mistake of clerical nature, done on the part of the court, can always be corrected by the court, even under section 151 of the Code of Civil Procedure. In an application for review three preconditions are to be satisfied, namely- (1) discovery of new and important matter which was not within the knowledge or could not be produced by the aggrieved person inspite of exercise of due diligence, (II) any mistake or error apparent on the face of the record and (III) for any other sufficient reasons. The impugned order has been passed as if the succeeding judge was sitting in appeal over an order passed by his predecessor judge, while exercising the same jurisdiction. Thereby, the succeeding judge, in passing the impugned order, has usurped the function of an appellate court or of the revisional court, which does not vest in him. It is to be made clear that, the appellate court, in the course of deciding the appeal, shall consider the issues as regards the admissibility and weight of the evidence to be placed before it. The possession, however long it might be, if rooted in any unlawful acts or any kind of force or is an act of trespass, the same will not confer any right or title to the trespassers or to the unlawful occupier or the usurper, because the law will not perpetuate any illegality simply because of elapse of time.      . . . (9, 10 and 12 to 14)

Government of Bangladesh, represented by the Secretary, Ministry of Industries and others Vs. Shafi A. Chowdhury and others, 47 DLR (HCD) 567; Shah Mohammad Vs. Ghulam and another 22 DLR (SC) 102 ref.

Mr. Md. Abdul Haque, Advocate.

. . . For the petitioner.

Mr. Md. Asad Ullah with

Mr. M. Masud Rana, Advocates.

...For the Opposite Parties.

JUDGMENT

Md. Rezaul Hasan, J. This Rule has been issued calling upon the opposite party Nos. 1-9 to show cause as to why the impugned judgment and order No. 35 dated 05.09.2016, passed by the learned Joint District Judge, 1st Court, Mymensingh, in Other Class Appeal No. 205 of 2013, should not be set-aside and/or pass such other order or orders passed as to this Court may seem fit and proper.

2.             Facts, relevant for disposal of the Rule, in short, are that, the opposite party Nos. 1-9, as plaintiffs, had filed Other Class Suit No. 18 of 2011, for cancellation of deed No. 5893 dated 18.05.1964 on the allegation made in the plaint (Annexure-A to the petition). The defendant Nos. 3 has filed written statement in the said suit (Annexure-B).

3.             The suit was decreed in favour of the plaintiff-petitioner. Against the said judgment and decree of the trial court, the defendant No. 1 Md. Abdul Khalek Bhuiyan preferred Other Class Appeal No. 205 of 2013 and in the said appeal, the respondent No. 11, who is petitioner in this revisional application, had filed an application (Annexure-C) under Order 39 Rule 7 of the Code of Civil Procedure, on 15.06.2015, for local inspection of the property described to the schedule of the application (i.e. a portion of the property covered by the impugned deed).

4.             After hearing the said application, the appellate court, by its order dated 18.06.2015, allowed the application for local inspection and directed to pay Commission Fees, being Tk. 3,000/=, for the purpose of inspection. The respondent Nos. 1-9 have filed an application, on 30.07.2015, for review of the order dated 18.06.2015, whereby the local inspection was allowed. The previous order dated 18.06.2015, it appears from the record, was passed by another judge then presiding over the court of Joint District Judge, 1st Court, Mymensingh, while the succeeding judge, after hearing the said application for review, by its order dated 05.09.2016, has set aside the previous order dated 18.06.2015 that was passed allowing the local inspection.

5.             Being aggrieved by and dissatisfied with the said impugned judgment and order dated 05.09.2016, the respondent No. 11 i.e. the petitioner has filed this revisional application under section 115(1) of the Code of Civil Procedure and obtained the present Rule.

6.             Learned Advocate Mr. Md. Abdul Haque, appeared for the petitioner and having placed the petition alongwith the materials on record, he mainly submits that, the order dated 16.06.2015, whereby the local inspection was allowed was passed by the then learned Joint District Judge, 1st Court, Mymensingh, who was competent to hear the application. However, before depositing the commission fees, the respondent Nos. 1-9 have filed an application on 15.06.2015, the learned succeeding Joint District Judge, 1st Court, Mymensingh, who, by its order dated 05.09.2016, has set aside the previous order dated 18.05.2016 and, therefore, has committed an error of law, resulting in error in the decision and occasioning failure of justice, in that the previous order was passed by the same court and the said court has become functious-officio  and had no jurisdiction to seat over as a court of appeal on the previous order dated 18.06.2015. Besides, he also submits that, this was not a reviewable order and that if the respondents were at all aggrieved by that order dated 16.02.2015, then their remedy was to file a revisional application, but for non-filing of the same, the said order for holding local inspection dated 18.06.2016 has become final and conclusive and, as such, the Rule has merit and the same may be made absolute, he concludes.

7.             On the other hand, learned Senior Advocate Mr. Md. Asad Ullah, appeared alongwith Mr. M. Masud Rana, on behalf of the opposite party Nos. 1-9, submits that, this is a case for cancellation of deed No. 5893 dated 18.05.1964. Therefore, in this case, the application for local inspection was totally uncalled for inasmuch as the points raised for local inspection were not in issue before the court of appeal and, by the impugned order dated 15.09.2016, the appellate court has rightly set aside its own order for the reason that the application for local inspection was filed for proving the possession of the respondent No. 11 in the suit property mentioned in the schedule to the application for local inspection. He also submits that, the fact about possession could be proved by oral evidence and that this respondent No. 11 did not file any cross appeal against the judgment and decree of the trial court. Therefore, in passing the impugned order dated 05.09.2016, the learned Advocate proceeds on, the appellate court has committed no error of law, nor the impugned order has resulted in any error, nor the same is prejudicial to this added respondent-petitioner. In support of this contention, the learned Advocate has cited 2 decisions, one in the case between Government of Bangladesh, represented by the Secretary, Ministry of Industries and others -Vs- Shafi A. Chowdhury and others, reported in 47 DLR (HCD)567 and another is between Shah Mohammad -Vs- Ghulam and another, reported in 22 DLR(SC)102. However, the learned Advocate for the opposite party Nos. 1-9 has stated that this petitioner (Added respondent No. 11) has claimed title in the suit property on the basis of oral exchange and was interested to prove unlawful possession and therefore, the impugned order may not be interfered with. He also submits that this Rule has no merit and prays for discharging the Rule.

8.             I have heard the learned Advocates for both the parties, perused the application for revision as well as the judgment and order of the Court below and other materials in the record.

9.             I have gone through the provisions regarding review of the judgment and order i.e. Order 47 of the Code of Civil Procedure, 1908. A mere perusal of Order 47, shows that a review of a decree or order or a decision essentially contemplates prior and complete adjudication of an issue on merit. While an order obtained by exercising fraud or any order which is the result of any mistake of clerical nature, done on the part of the court, can always be corrected by the court, even under section 151 of the Code of Civil Procedure.

10.         On the other hand, in an application for review three preconditions are to be satisfied, namely- (1) discovery of new and important matter which was not within the knowledge or could not be produced by the aggrieved person inspite of exercise of due diligence, (II) any mistake or error apparent on the face of the record and (III) for any other sufficient reasons.

11.         On perusal of the impugned order dated 05.09.2016 it appears that, nothing of these preconditions were considered by the same appellate court, at the time of passing this subsequent order dated 05.09.2016, passed by a different and succeeding judge.

12.         I also find that the impugned order has been passed as if the succeeding judge was sitting in appeal over an order passed by his predecessor judge, while exercising the same jurisdiction. Thereby, the succeeding judge, in passing the impugned order, has usurped the function of an appellate court or of the revisional court, which does not vest in him. Besides, in the facts of this case, the court has become functus-officio after passing the order dated 16.06.2015 and the succeeding judge was not (even the same judge cannot) re-open the matter already decided by it, which is indeed functions of a higher forum, sitting in appeal or revision.

13.         The issue, as to whether an oral and unregistered Ewaj exchange is lawful or not, is a question of law, already settled in other cases by the Apex Court of the country and I need not make any observation on this issue, during pendency of the appeal in the court below. Besides, it is to be made clear that, the appellate court, in the course of deciding the appeal, shall consider the issues as regards the admissibility and weight of the evidence to be placed before it.

14.         It is also to be made clear that, the possession, however long it might be, if rooted in any unlawful acts or any kind of force or is an act of trespass, the same will not confer any right or title to the trespassers or to the unlawful occupier or the usurper, because the law will not perpetuate any illegality simply because of elapse of time.

15.         However, anxiety of this Court is that, the impugned order dated 05.09.2016 passed by the succeeding judge of the same court even after it has become functus-officio cannot be taken lightly, because this may open a floodgate, in other cases, to change an order, passed by a judge once he is succeeded by another judge, and this will create a judicial anarchy and will upset the entire judicial process and practices, which cannot be allowed by this Court.

16.         The decisions quoted above, on behalf of the opposite party, is not applicable in deciding this Rule. Here the point for determination is whether the impugned order is sustainable or not in view of the provisions of section 115(1) of the Code of Civil Procedure.

17.         Accordingly, I find merit in this Rule and the same should be made absolute.

R D E R

In the result, the Rule is made absolute.

The impugned judgment and order No. 35 dated 05.09.2016, passed by the learned Joint District Judge, 1st Court, Mymensingh, in Other Class Appeal No. 205 of 2013 is hereby set aside.

The order of stay granted and subsequently extended earlier by this Court is hereby vacated.

The Court below is directed to dispose of the appeal within soonest possible time.

No costs.

Let a copy of this judgment be sent to the concerned Court at once.

Ed.