Md. Mazedul Islam (Limon) Vs. Most Nazi Fatema Tamanna and others, 1 LNJ 2012 431

Case No: F. M. A. No. 215 of 2011

Judge: Nozrul Islam Chowdhury,

Court: High Court Division,,

Citation: 1 LNJ 2012 431

Case Year: 2012

Appellant: Md. Mazedul Islam (Limon)

Respondent: Most Nazi Fatema Tamanna and others

Delivery Date: 2012-05-16

HIGH COURT DIVISION
(Civil Appellate Jurisdiction)
 
Nozrul Islam Chowdhury, J.
And
K. M. Kamrul Kader, J.

Judgment
16.05.2012
 
Md. Mazedul Islam (Limon)
...Appellant.
Vs.
Most Nazi Fatema Tamanna and others.
...Respondent
 
Code of Civil Procedure (V of 1908)
Order VII, rule 11 
Family Courts Ordinance (XVII of 1985)
Sections 3 and 5
The instant suit is a regular suit before a Civil Court claiming a decree for declaration that the Kabinnama is a forged and fabricated one and there is nothing in the plaint showing that there is any legal bar in proceeding with the said suit, learned Judge rejected the plaint on the basis of extraneous consideration without keeping himself confined to the averments made in the plaint itself. ...(7)
 
F. M. A. No. 215 of 2011
 
JUDGMENT
Nozrul Islam Chowdhury. J:
 
The supplementary affidavit filed by the appellant do form part of the main application.
 
2.         This appeal is directed against the judgment and decree dated 23.06.2011 passed by the learned Joint District Judge, 1st Court, Joypurhat, in Title Suit No. 14 of 2011 rejecting the plaint of the suit.
 
3.         Mr. Dewaft Abdul Wahab Kazal, the learned Advocate appearing for the appellant has taken us through the materials on record including the impugned order and then submits that the impugned order rejecting the plaint has been passed by the learned Joint District Judge on the basis of extraneous consideration in as much as while disposing of an application for rejection of the plaint the leaned Joint District Judge ought to have confined his attention to the plaint and plaint only and nothing beyond but in the instant case while passing the impugned order the learned Joint District Judge has taken into consideration the pendency of a different case between the same party, therefore, the impugned order suffers from illegality.
 
4.         The learned Advocate for the appellant submits further that the learned Joint District Judge has taken an erroneous view with respect to the jurisdiction of the Family Court in that Section 5 of the Family Court provides for exclusive jurisdiction to entertain and disposing of any suit relating to dissolution of marriage, restitution of conjugal right, dowry, maintenance and guardian ship and custody of the children but in the instant suit being a regular suit before a civil court brought under section 39 of the Specific Relief Act urging an allegation of forgery against the defendants of creating a Kabinnama by means of forgery as such the matter in issue involved in the suit cannot be one and the same as that of the suit instituted under the Family Court Ordinance by the defendants against the plaintiff. Therefore, the ground on which the plaint has been rejected as not sustainable in law.
 
5.         Mr. Md. Nurul Mostafa, the learned Advo-cate appearing for the respondents submits that Section 5 of the Family Court Ordina-nce has provided exclusive jurisdiction for the Family Court to decide dowry and some other related matters between the husband and wife and in view of the pendency of the another suit being Family Suit No. 25 of 2011 in between the same parties where the defendants of the instant suit claims maintenance and dowry as plaintiff. The question of forging could very well be raised in that particular suit by the defendants.
 
6.         Section 3 of the Family Court Ordinance which provides a overriding clause therefore the learned Advocate for the respondents submits that it is a overriding clause which excludes any other jurisdiction to decide the question relating the matters in respect of section 5 of the Family Court Ordinance, therefore, the impugned order do not call for any interference by this court.
 
7.         Having heard the learned Advocates from both sides and upon going through the materials placed in the case we find substance in the submission made by the learned Advocate for the appellant in as much as the instant suit is a regular suit before a civil court claiming a decree for declaration that the kabinnama is a forged and fabricated one and there is nothing within the four corners of the plaint which has been annexed before us to show that there is any legal bar in proceeding with the said suit and having done so we are also of the opinion that the learned Joint District Judge passed the impugned order on the basis of extraneous consideration without keeping himself confined to the averments or recitals made in the plaint itself. Since the settled law in this connection is that while rejecting a plait in a civil suit the court has to confine its attention to the averments made in the plaint itself and nothing beyond. But in the instant case to arrive at a finding as done by the Joint District Judge to the effect that the Family Court has to try the issue involved in the instant suit is not acceptable under the established principle of law.
 
8.         In view what has been stated above, this appeal is allowed and the impugned order No. 3 dated 23.06.2011 and the decree passed in Title Suit No. 14 of 2011 by the learned Joint District Judge, 1st Court, Joypurhat is hereby set aside and the learned Joint District Judge is directed to proceed with the case in accordance with law. The office is directed to communicate this order at once for compliance.
 
Ed.