Md. Korban Ali Vs. Most. Tamanna Ashrafi, (Soumendra Sarker, J.)

Case No: Civil Revision No. 2727 of 2015

Court: High Court Division,

Advocate: Mr. Md. Moniruzzaman, Advocate ,

Citation: 2018(2) LNJ

Case Year: 2018

Appellant: Md. Korban Ali

Respondent: Most. Tamanna Ashrafi

Subject: Code of Civil Procedure

Delivery Date: 2019-12-02

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J

 

Judgment on

22.03.2018

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Md. Korban Ali

. . . Pre-emptor-Petitioner

-Versus-

Most. Tamanna Ashrafi

. . . Purxhaser-Pre-emptee-Respondent

Code of Civil Procedure (V of 1908)

Section 148

State Acquisition and Tenancy Act (XXVIII of 1951)

Section 96

Under section 148 of the Code of Civil Procedure the court is empowered to enlarge time only where any period is fixed or granted by Court for doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. The interpretation of this section is such that this provision of law empowered the court to enlarge time for doing any act, prescribed or allowed by the Code, but the court retains that power, so long the proceedings are pending therein. As soon as; the proceedings have become dead, the court becomes functous officio and ceased its jurisdiction to extend the time. There is different between the order; the appeal will stand dismissed and the appeal will be dismissed. The former order contemplates final order and the later order contemplates a final order to be passed in future and there, the case has not been finally disposed of and the court can extend time under section 148 of the Code of Civil Procedure.                 . . . (12 and 13)

Birendra Nath Kar Vs. Abdul Manan Kazi and others 10 BLC (AD) 157 ref.

Mr. Md. Moniruzzaman, Advocate

----For the petitioner

Mrs. Madhuri Saha, Advocate

- - -For the opposite party

JUDGMENT

Soumendra Sarker, J: The Rule issued calling upon the Opposite party  to show cause as to why the impugned judgment and order dated 12.05.2015 passed by the learned District Judge, Natore in Civil Revision No. 25 of 2013 affirming the judgment and order dated 07.07.2013 passed by the learned  Assistant Judge, Gurudaspur, Natore in Miscellaneous Pre-emption Case No. 26 of 2006 disallowing the case  should not be set-aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

2.             The facts leading to the issuance of Rule in a nutshell can be stated thus, the present petitioner as pre-emptor filed the Original Pre-emption Miscellaneous Case No. 26 of 2006 in the court of the learned Assistant Judge, Gurudaspur, Natore under Section 96 of the State Acquisition and Tenancy Act, 1950 for Pre-emption contending inter alia  that, one Chaimuddin and Nachtullah were the owners of the “Ka” and “Kha” schedule land. Chaimuddin died leaving behind the pre-emptor and the opposite parties No. 2-16 as his legal heirs. The heirs of the deceased Chaimuddin along with opposite parties No. 2-42 have been jointly possessing the case jote. The opposite party No. 02 transferred the case land in favour of the opposite party No. 01, who is a stranger to the case jote.  No notice was served upon the co-sharers of the case holding and the pre-emptor subsequently knowing about the transfer on 15.03.2006 has instituted the original pre-emption miscellaneous case for getting the case land pre-empted.

3.             The contrary case of the pre-emptee-opposite party No. 01 in short is such that Chaimuddin and Nachtullah were the joint owners of the schedule property. By oral amicable settlement between them the case land devolved upon Chaimuddin. Subsequently, he died leaving behind the opposite party No. 02 as his son who obtained the case land by way of inheritance. Thereafter, the opposite party No. 02 made a proposal before the pre-emptor-petitioner to purchase the case land, but the petitioner refused to purchase. Subsequently, the opposite party No. 02 transferred the case land in favour of the opposite party No. 01. The opposite party No. 01 after digging earth prepared a mini pond in the case land and using the same as fishery at a cost of taka 20,000/=, but the pre-emptor on false allegations filed the case to grab the case land.

4.             The learned trial court during trial of the original case after taking evidences from the sides of the respective parties, by his judgment and order dated 15.02.2010 allowed the case with a condition, directing the pre-emptor to deposit a development cost of taka 20,000/= within 60 days from date, failing which the case shall be treated to be disallowed.  Against the judgment and order passed by the learned trial court, the pre-emptor-petitioner has preferred a Miscellaneous Appeal being No. 36 of 2010 in the court of the learned District Judge, Natore  which was transmitted to the 1st court of learned Joint District Judge, Natore for hearing and disposal. The learned Appellate Court on hearing the appeal by the judgment and order dated 10.03.2013 disallowed the miscellaneous appeal and affirmed the judgment and order of the trial court dated 15.02.2010. Thereafter, the pre-emptor-petitioner filed an application before the trial court for acceptance of the development cost, but learned trial court by his order dated 07.07.2013 passed an order that the pre-emptor-petitioner since not deposited the development cost of taka 20,000/= within the prescribed time,  the pre-emption miscellaneous case has been treated as disallowed. Against that order, the pre-emptor-petitioner preferred a civil revision being No. 25 of 2013 in the court of the learned District Judge, Natore and the learned District Judge hearing the revisional application by his judgment and order dated 12.05.2015 disallowed the civil revision and affirmed the order of the trial court dated 07.07.2013 passed in the Original Pre-emption Case No. 26 of 2006.

5.             Being aggrieved by and dissatisfied with the impugned judgment and order of the 1st court of revision the pre-emptor-petitioner has preferred 2nd revision before this court and obtained the Rule.

6.             During hearing of this Rule Mr. Md. Moniruzzaman the learned Advocate appeared on behalf of the petitioner while Mrs. Madhuri Saha the learned Advocate appeared on behalf of the opposite party.

7.             The learned Advocate appearing on behalf of the petitioner submits that the learned District Judge, Natore was not justified in disallowing the revision application, inasmuch as  due to unavoidable circumstances the pre-emptor-petitioner was not able to deposit the development cost of taka 20,000/= within time. The learned Advocate further submits that, there is a difference between ‘the case shall stands dismissed’ and ‘the case shall be treated to be disallowed’. The learned Advocate also submits that, as the pre-emptor was abroad at the relevant time he could not deposit the amount and under Section 148 of the Code of Civil Procedure, the court can extend time in appropriate case, as the present case is. To substantiate such submission the learned counsel referred a decision reported in 3 DLR 314, and lastly submits that the hands of the court is not tight in case of “shall be treated to be disallowed” since in this case a subsequent separate order is required for final order and the learned trial court no where passed any such order that the case is disallowed or stands disallowed.

8.             As against the aforesaid submission of the learned counsel for the petitioner, the learned Advocate appearing on behalf of the opposite party opposing the Rule controverted the argument advanced from the side of the leaned counsel for the petitioner and submits that the learned 1st court of revision committed no wrong or illegality in passing the impugned judgment and order dated 12.05.2015 in Civil Revision No. 25 of 2013. The learned Advocate further submits that the pre-emptor-petitioner without challenging the judgment and order passed in Miscellaneous Appeal No. 36 of 2010 tried to deposit the development cost which was imposed upon him by the learned trial court under a particular condition and the learned trial court in his observation and findings  rightly opined that, he has no option but to disallow the Original Miscellaneous Case No. 26 of 2006 inasmuch as there is a finding and observation of the Appellate Court dated 10.03.2013 that according to the order of the trial court dated 15.02.2010 the Miscellaneous Pre-emption Case No. 26 of 2006 has been treated disallowed. The learned Advocate also submits that the order of the Appellate Court in Miscellaneous Appeal No. 36 of 2010 is still in force. From the order of the trial court dated  07.07.2013 i.e. after 10.03.2013 on which the judgment and order of the learned appellate court was passed, it appears that the petitioner filed an application before the trial court to deposit the development cost of taka 20,000/= and the trial court  rejected that. Against that order the petitioner filed the Civil Revision No. 25 of 2013 and that civil revision was disallowed vide judgment and order dated 12.05.2015. The learned Advocate referring Section 148 of the Code of Civil procedure argued that, in the instant case this section can not be applied invoking discretion of the court, inasmuch as, where there is any scope open for the court to extend time which was given earlier and only where the party concerned within the stipulated time prays for extension of time, in that case only the court is empowered to invoke its power under this section. But in this case using a word, ‘the case shall be treated to be disallowed’ shows that no further order is required to disallow the case, even then a separate subsequent order has been passed by the Appellate Court in Miscellaneous Appeal No. 36 of 2010 with regard to this, which has got every binding effect upon the trial court and there is a difference of the present case with the case law reported in 3 DLR 314. The learned Advocate lastly submits that the learned 1st court of revision committed no irregularity or illegality by dint of which the impugned judgment and order can be interfered with.

9.             In order to appreciate the submission advanced from the sides of the learned Counsels for the parties, on anxious consideration and meticulous evaluation of  the connected papers including the relevant orders of the learned trial court passed in Pre-emption Miscellaneous Case No. 26 of 2006 and the Appellate Court and 1st Court of Revision, it transpires that in the Pre-emption Case the learned Assistant Judge,Gurudaspur, Natore in the ordering portion of his judgment and order dated 15.02.2010 (Vide Annexure-D-1) directed the petitioner to deposit the development cost of taka 20,000/= within 60 days from 15.02.2010 pursuant to  allowing the Pre-emption Miscellaneous case, which reads as follows:

“that the case is allowed on contest against the opposite party No. 01 and ex-parte against the rest without cost.

The right, title, interest of the transferee-opposite party accrued in the case land by the deed of ‘Ga’ schedule do vest in the petitioner free from all encumbrances.

The transferee-opposite party is directed to execute and register a sale deed in respect of the case land in favour of the petitioner within 60 days from today failing which the petitioner may get it through court.

The petitioner is directed to deposit development cost of taka 20,000/= within 60 days from today failing which the case shall be treated to be disallowed.

The petitioner may get the possession of the case land through court. The transferee opposite party may withdraw the money in deposit and the development cost.”

10.         From the plain reading of the ordering portion it is obvious to note that, there was a condition precedent imposed on the pre-emptor-petitioner to deposit the development cost within a prescribed time and admittedly the petitioner could not deposit that amount within time. Against the judgment and order of the trial court the appeal which was preferred from the side of the petitioner was disallowed by the Appellate Court in Miscellaneous Appeal No. 36 of 2010 (Vide Annexure-B). Apparently, the pre-emptor-petitioner without challenging that judgment and order, tried to deposit the development cost. I have come-across from the order of the appellate court dated 10.03.2013 that the learned appellate  court in his observation and findings held, (Quote) : “GgbwK weÁ Avcxj Av`vj‡Z Avcxj gvgjv `v‡q‡ii ci Avcxj Av`vjZ n‡Z weÁ wePvwiK Av`vj‡Zi 15/2/10 Bs Zvwi‡Li Av‡`‡ki Kvh©¨KvixZv ¯’wMZ PvIqv nq bvB| d‡j, weÁ wePvwiK Av`vj‡Zi 15/2/10 Bs Zvwi‡Li Av‡`k Abymv‡iB 26/06 bs wgm wcÖ‡qgkb gvgjvwU bvgÄyi e‡j Mb¨ n‡q‡Q|  

11.         Subsequently, while the matter was placed before the trial court to pass necessary order regarding acceptance of deposit, the trial court vide his order dated 07.07.2013 held, (Quote):

         `iLv¯—Kvix 15/2/10 Zvwi‡Li Av‡`‡ki wei“‡× Avcxj Ki‡j weÁ Avcxj Av`vjZ Zvui cÖ`Ë iv‡qi M‡f© e‡jb - wbw`©ó mg‡qi g‡a¨ AvcxjKvix D³ 20,000/= 1bs cªwZc¶ eivei cÖ`vb K‡ib bvB| Ggb wK weÁ Avcxj Av`vj‡Z Avcxj gvgjv `v‡q‡ii ci Avcxj Av`vjZ n‡Z weÁ wePvwiK Av`vj‡Zi 15/2/10 Bs Zvwi‡Li Av‡`‡ki  Kvh©¨KvixZv ¯’wMZ PvIqv nq bvB| d‡j, weÁ wePvwiK Av`vj‡Zi 15/2/10 Bs Zvwi‡Li Av‡`k Abymv‡iB 26/06 bs wgm wcÖ‡qgkb gvgjvwU bvgÄyi e‡j Mb¨ n‡q‡Q| †h‡nZy AÎ †gvKÏgvwU LvwiR e‡j Mb¨ n‡q‡Q †m‡nZy GB gvgjvq `iLv¯—Kvixi GB `iLv¯— we‡ePbv Kivi m‡hvM bvB|  

12.         In this connection I find that under section 148 of the Code of Civil Procedure the court is empowered to enlarge time only where any period is fixed or granted by Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.

13.         The interpretation of this section is such that this provision of law empowered the court to enlarge time for doing any act, prescribed or allowed by the Code, but the court retain that power, so long the proceedings are pending therein. As soon as; the proceedings have become dead, the court becomes functous officio and ceased its jurisdiction to extend the time. There is a difference between the order: ‘the appeal will stand dismissed’ and ‘ the appeal will be dismissed’. The former order contemplates final order and the later order contemplates a final order to be passed in future and there, the case has not been finally disposed of and the court can extend time under section 148 of the Code of Civil Procedure.

14.         In the instant case, I have come across from the orders that the learned trial court in the ordering portion made a direction that, in absence of deposit of the money within time, the case shall be treated to be disallowed, and subsequent to that, the Appellate Court in the Miscellaneous Appeal No.36 of 2010 passed a definite opinion in his observation and findings that the pre-emption Miscellaneous Case has been treated as disallowed.

15.         In the facts and circumstances of this case, the learned trial court definitely had no other option but to comply with the order of the appellate court which is still in existence and in force.

16.         Hence, the words “LvwiR ewjqv Mb¨ nB‡e” can only mean, “shall be deemed to be dismissed”. In this regard I find support in the decision of our Apex Court passed in the Case of Birendra Nath Kar-vs.-Abdul Manan Kazi and others, reported in 10 BLC (AD) 157 [ Paragraph-5].    our considered finding that the irregularity may be rectified upon the concerned Trial Court renumbering the application under Section 7 ka of the Arbitration Act, 2001 as a separate Misc. Case in accordance with the provisions of Serial No. 38 of Rule 774 of the C.R.O (Volume-1).

17.       The learned Advocate for the opposite party No. 1 cited several decisions before us which decisions mainly expound a common principle that maintainability of a suit cannot be properly decided at any stage of hearing of an application for temporary injunction. We are also in agreement with the principle of these judgments cited by the opposite party No.1. But as mentioned herein before in this judgment the main contention in this case being the legality of the impugned order No. 15 dated 07.02.2017, we do not find it necessary or relevant to dwell upon other issues. The learned Counsels from both sides had also agitated over several factual issues and which are disputed matters of fact and which sitting in Revision here we are not in a position to adjudicate upon. These factual issues may be placed by the parties before the appropriate forum.

18.         Therefore under the foregoing facts and circumstances and upon perusal of the application and materials on record and the decisions cited by the learned Advocates from both sides we are inclined to dispose of the rule with direction to the trial court to renumber the Misc. Case as a separate Misc. Case filed under Section 7(ka) of the Arbitration Act, 2001. But we however do not find any reason to interfere with the impugned order of granting temporary injunction in itself.

19.         In the result, the Rule is disposed of with the direction and the observations made above.

20.         The order of status-quo granted earlier by this court is hereby recalled and vacated. 

21.         Communicate this order at once.

Ed. 



Civil Revision No. 2727 of 2015