Md. Mosharaf Hossain Vs. A.M.G. Belayet Hossain & ors., (Md. Nuruzzaman, J.)

Case No: Memorandum of Appeal from Original Decree No. 42 of 2016

Judge: Md. Nuruzzaman, J And S. H. Md. Nurul Huda Jaigirdar, J.

Court: High Court Division ,

Advocate: Mr. A. J. Mohammad Ali, Senior Advocate with Mr. Enayet Hussain Khan, Mr. Md. Ziaul Haque, and Mr. Hasibur Rahman, Advocates ,

Citation: 2018(2) LNJ

Case Year: 2018

Appellant: Md. Mosharaf Hossain

Respondent: A. M. G. Belayet Hossain and others

Subject: Arbitration Act

Delivery Date: 2019-12-02

 

HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

Md. Nuruzzaman, J

And

S. H. Md. Nurul Huda Jaigirdar, J.

 

Judgment on

06.03.2018 and 07.03.2018

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Md. Mosharaf Hossain

. . . Appellant

-Versus-

A. M. G. Belayet Hossain and others

. . . Respondents

Arbitration Act (I of 2001)

Section 7

Code of Civil Procedure (V of 1908)

Order VII, Rule 11

The learned Joint District Judge has misconstrued the provision of section 7 of the Act, because neither of the party sought arbitration before any Court and no proceeding is pending in any Court regarding the prayer of the suit or for any dispute. The prayers of the suit are not decidable by the Arbitrator as per Arbitration clause which reflected from pleadings and prayers of the suit because those are the beyond jurisdiction of Arbitrator and a competent Court of civil jurisdiction has to decide the suit in accordance with law. Besides that the defendant has already filed the written statement against the pleadings of the plaint taking clear defense. So, when the defendant surrender jurisdiction to the court instead of taking recourse of arbitration at the first instance, so later filing application for rejection of plaint is not entertainable, rather, it becomes academic. . . . (44)

Mahbubul Haque (Md) Vs. Md. A Kader Munshi 52 DLR (AD) 49; Shahjahan Siraj (Md) Vs. Md. Rafique Quoraishi and others 19 BLC (AD) 143; Guiness Peat (Trading) Limited Vs. Md. Fazlur Rahman 44 DLR (AD) 242; Byram Pestonji Gariwala Vs. Union Bank of India and others Supreme Court cases 1992 Bol-3, page -31; Chittagong Port Authority and another Vs. M/s Crete Construction Company Ltd. & another 31 DLR (AD) 138 and Seafarers Ino. Through Shaw Wal-lace Pakistan Ltd. Vs. Province of East Pak 20 DLR (SC) 225 ref.

Mr. A. J. Mohammad Ali, Senior Advocate with

Mr. Enayet Hussain Khan,

Mr. Md. Ziaul Haque, and

Mr. Hasibur Rahman, Advocates

- - -For the appellant.

Mr. Md. Waliur Reza Chowdhury, Advocate with

Mr. Mantu Lal Das, and

Mrs. Ferdousi Reza Chowdhury, Advocates

- - - For the respondent No.1

JUDGMENT

Md. Nuruzzaman, J. The instant Appeal at the instance of the plaintiff is directed against the Judgment and decree dated 18.01.2016 (decree signed on 24.01.2016) passed by the learned Joint District Judge, 2nd Court, Dhaka in Title Suit No. 231 of 2015 allowing the application for rejection of the plaint and thereby rejected the plaint.

2.             The materials facts, relevant, for disposal of the instant First Appeal, succinctly, are that, the appellant as plaintiff instituted the suit for declaration of title and confirmation of possession in schedule Ka land, the City Jorip Khatian in the name of defendant No.1 A.M.G. Belayet Hossain described in schedule Kha of the plaint is illegal, wrong, ineffective and not binding upon the plaintiffs and further prayed for declaring that partnership establishment M/S “Hossain and Hossain” has already been dissolved and ineffective.

3.             The plaint case, in short, are that, the suit property is situated at Mirpur Housing Estate under the authority and control of National Housing Authority. The plaintiff Md. Mosharaf Hossain applied for a commercial plot to the Housing Authority who allotted plot No.7, Block –B, Main Road No. 1, section-1 in favour of the plaintiff who paid the value of the plot. The Housing Authority registered a lease deed being deed No. 2697 dated 30.06.1985 in favour of the plaintiff Md. Mosharaf Hossain and handed over the possession of the property to him. The plaintiff by dint of registered lease agreement got mutation in his name through the office of Assistant Commissioner (land) and paid the taxes. The plaintiff while has been owning and possessing the same the defendant No.1 A.M.G. Belayet Hossain created a partnership deed showing the aforesaid property as the property of partnership firm “Hossain and Hossain.” On 18.10.1986 the said firm was registered in the office of Registrar of Joint Stock Companies & firms, Dhaka being No. PE 28008/86 of 1986. Thereafter, the aforesaid property was mortgaged vide mortgage deed No. 3344 dated 27.10.1986 to the Rupali Bank, Motijheel Branch though suit property has been purchased and 4 storied building was constructed by the plaintiff at his own cost and money. The Rupali Bank instituted a suit being Title Suit No. 260 of 1998 in the Court of Joint District Judge, 1st Court, Dhaka for realization of the loan money selling the suit property. The plaintiff bank got the decree in the suit. However, the plaintiff Md. Mosharaf Hossain paid the decreetal amount in favour of the Rupali Bank, Motijheel Branch and got release the property and obtained a deed of redemption being No. 4654 dated 18.10.2005 in his name. In the suit property Bata Shoe Company (Bangladesh) Limited as a tenant running their business. The defendant No.1 A.M.G. Belayet Hossain wrote a letter on 27.11.2014 to the Manager, Bata Shoe Company (Bangladesh) Limited, Tongi claiming ½ (half) share of the property. In the above facts and circumstances the plaintiff has been compelled to file the suit for declaration.

4.             The defendant No.1 appeared and contested the suit by filing written statement denying the material allegations made in the plaint. 

5.             However, while the suit was so pending the defendant No.1 by filing an application under Rule 11 of Order 7 of the Code of Civil Procedure (in short Code) sought rejection of the plaint contending, inter-alia, that –

h¡c£l c¡­ul L«a 1j pqL¡l£ SS Bc¡m­al ®cJu¡e£ ®j¡LŸj¡ ew 378/93 ®j¡LŸj¡u   Cw a¡¢l­M fÐcš e¡¢mn£ pÇf¢š BL«ø h¡c£ Hhw Aœ ¢hh¡c£l pj¡e Aw­n j¡¢mL¡e¡ ®O¡¢oa ¢Xœ²£ L¡kÑLl qCu¡ Bp¡ Hhw Eš² ¢Xœ²£ AcÉ¡h¢d Un challenged ¢hd¡u HLC ¢Xœ²£i¨š² pÇf¢š ¢eu¡ Aœ ®j¡LŸj¡ a¡vr¢eL Alre£u ¢hd¡u Eq¡l Bl¢S fÐaÉ¡MÉ¡e­k¡NÉ quz

6.             It has been further contended in the application that the plaintiff has no cause of action to file the instant suit.

7.             The plaintiff filed an objection against the application for rejection of the plaint denying the material allegations made in the application pointing that application is not maintainable. However, the defendant claimed that the plaint cannot be rejected because the Artho Rin Case was decreed against both of them and thereafter, the plaintiff paid the decreetal amount of the bank and got the deed of redemption in his favour. So, the suit must be determined after appreciating the evidence at the trial.

8.             The learned Joint District Judge, 2nd Court, Dhaka by his judgment and decree 18.01.2006 allowed the application for rejection of the plaint and thereby rejected the plaint of Title Suit No. 231 of 2015.

9.             The plaintiff feeling aggrieved preferred the instant First Appeal against the judgment and decree dated 18.01.2016 (decree signed on 24.01.2016).

10.         Mr. A. J. Mohammad Ali, Senior Counsel with Mr. Enayet Hussain Khan, Mr. Md. Ziaul Haque, and Mr. Hasibur Rahman, the learned Advocates appearing for the appellants and took us through the impugned judgment and decree.

11.         Mr. Khan placed the impugned judgment and decree, application for rejection of the plaint, the plaint of Title Suit No. 231 of 2015, the written statement filed by the defendant No.1 and contended that on perusal of the averment made in the plaint there was no such averment that the suit is barred by any law. He took us through the prayer portion of the suit and argued that there is no nexus between the judgment and decree of the earlier suit or arbitration clause of the agreement to determine the prayer K, Kha and Ga of the plaint.

12.         He has further pointed that the learned Joint District Judge arrived at a wrong decision rejecting the plaint for declaration and confirmation of possession wherein in the averments of the plaint clearly reflected the cause of action and, as such, the impugned judgment and decree is liable to be set aside.

13.         He referring the application for rejection of the plaint has clearly pointed that the points raised by the defendant No.1 in the application are clearly beyond the averment of the plaint therefore, all the points are extraneous defence material however, the learned Joint District Judge without considering the legal proposition in its true perspective rejected the plaint and, as such, erred in law.

14.         He has further added that before filing the application for rejection of the plaint the defendant No.1 by filing written statement has taken the clear defence in the suit which reflected from the pleadings, thereafter, he filed the application for rejection of the plaint and, as such, the application is liable to be rejected.

15.         Mr. A.J. Mohammad Ali, the learned Senior Counsel has submitted that in passing the impugned judgment and decree the learned Joint District Judge has specifically arrived at a wrong decision and thereby committed an error in rejecting the plaint and, as such, the same is liable to be set aside. Mr. Ali has further submitted that the plaint can only be rejected if from the averments of the plaint it is apparent on a plain reading of the plaint and from the prayer of the suit that it is barred by any law or there is no cause of action to file the suit. He has added that the learned Joint District Judge in rejecting the plaint travel beyond the settle legal maxim as enunciated by the apex Court and, as such, the impugned judgment and decree is liable to be set aside.

16.         Mr. Ali took us through the impugned judgment specifically referring the provision of section 7 of the Arbitration Act as quoted by the learned Judge which as under:

Jurisdiction on Court in respect of matters covered by arbitration agreement.

Notwithstanding anything contained in any other law for the time being in force, where any of the parties to the arbitration agreement files a legal proceedings in a Court against the other party, no judicial authority shall hear any legal proceedings except in so far as provided by this Act.

AbÑ¡v Eš² ¢hou ®cJu¡e£ Bc¡ma ®j¡L¡Ÿj¡ Ll¡l h¡c£l ®L¡e p¤­k¡N ®eCz ®k L¡l­Z h¡c£l Bl¢S¢V BCeNa i¡­hC h¡¢la z

17.         Upon bare reading the aforesaid observation and provision of arbitration of the partnership agreement Mr. Ali pointed that the relief sought in the prayer of the instant suit cannot be resolved in view of the arbitration clause by the Arbitrator because the prayer of the plaint not within the purview of partnership agreement rather, all the prayers of the suit as prayed by the plaintiff beyond the jurisdiction of the Arbitration clause which have to be decided by competent Court of law for determination as to whether the plaintiff is entitled to get reliefs as per provision of Specific Relief Act not within the ambit of the provision of the clause of the arbitration of the partnership agreement.

18.         He has in the same breath added that section 7 of the Arbitration Act does not exclude the jurisdiction of the Civil Court or taking away the jurisdiction to determine the legal and lawful prayer regarding civil dispute however, if there is any agreement in between the parties and in that agreement there is a clause for arbitration either of the parties can seek remedy within the ambit of the arbitration clause. The defendant No.1 however, neither pleaded in the written statement nor in the application for rejection of plaint that he sought for arbitration in view of the arbitration clause as provided in the partnership agreement therefore, no legal proceeding is pending before any Court in view of the Arbitration clause. Hence, rejecting the plaint in view of the arbitration clause of the agreement cannot be invoked as bar to file the present suit, and, as such, the learned Joint District Judge committed an error thus, the impugned judgment and decree is liable to be set aside.

19.         Mr. Ali in support of his submissions relied upon the precedences to the case of Mahbubul Haque (Md) Vs. Md. A Kader Munshi reported in 52 DLR (AD) 49, to the case of Shahjahan Siraj(Md)Vs. Md Rafique Quoraishi and others reported 19 BLC(AD)143, to the case of Guiness Peat (Trading) Limited Vs. Md. Fazlur Rahman reported   44 DLR (AD) 242.

20.         Mr. Md. Waliur Reza Chowdhury, the learned Advocate appearing for the respondent No.1 has submitted that the plaintiff has filed the suit for declaration of 16 annas title over the suit property however, referring the paragraph 3 of the plaint he argued that at the earlier occasion the present plaintiff filed the title suit No. 378 of 1993 in the Court of Assistant Judge, 1st Court, Dhaka admitting the sole decree though in the some portion of the averment indicated that this solenama has been created forgedly by the plaintiff however, the plaintiff did not challenge that solenama in this case rather, on an exceptional pretext filed the suit for declaration of title over the suit property although according to the averment he can filed the suit for declaration that the sole decree passed in Title Suit No. 378 of 1993 is null and void and not binding upon the plaintiffs.

21.         He has further pointed that the plaintiff filed the instant suit after expiry the period of limitation to challenge the earlier judgment and decree dated 01.06.1997 passed in title suit No. 378 of 1993. So, as per averment of paragraph 3 and paragraph 6 and prayer portion admittedly the plaintiff and defendants are owners in equal share but in a cunning way filed the instant suit for declaration that he is the only sole owner of the suit property which attract earlier judgment and decree dated 01.06.1997 passed in title suit No. 378 of 1993. So, in no way the plaintiff is now entitled to file the suit and to have the decree because earlier decree is till in force and bar as res-judicata. Therefore, the learned Joint District Judge rightly rejected plaint which does not call for interference by this Court.

22.         He has further added that this defendant neither produced any external materials beyond the averment of the plaint nor superfluous matter as a defence case but very categorically referred the paragraph 3 and 6 of the plaint from which it is crystal clear that the plaintiff filed the instant suit for the same schedule property as of earlier suit in between the same party which has already decided on earlier occasion.

23.         He has further pointed that it would have been otherwise or the plaintiff have to proceed with the suit if he did not mention the facts in paragraph 3 and 6 in respect of earlier Title Suit No. 378 of 1993 and it’s judgment and decree. Therefore, he referring the impugned judgment and decree of the Court below very categorically pointed that since judgment and decree in between the same party is still now subsisting for the same property, therefore, the instant suit cannot be proceeded. He has argued that in the plaint the plaintiff does not disclose any cause of action in respect of prayer of the suit hence, the impugned judgment and decree is not liable to be set aside rather, the impugned judgment and decree based on legal and lawful proposition as enunciated by the apex Court that if on a mere reading of the averment of the plaint it appears that the plaint is barred by any law that can be thrown way by rejecting the plaint.

24.         Mr. Chowdhury has further submitted that the points raised by the defendant No.1 neither extraneous matter nor beyond the averment of the plaint hence, the impugned judgment and decree does not call for any interference.

25.         He has specifically pointed that the earlier judgment in Title Suit No. 378 of 1993 passed on 01.06.1997 and the instant suit filed by the plaintiff on 31.03.2015 i.e. after expiry the period of limitation to set aside the compromise decree from which it is divulged that the present suit is nothing but a test case to set aside the earlier judgment and decree in external way after expiry the period of limitation.

26.         In support of his submissions he referred a decision of Indian Supreme Court reported in Supreme Court cases 1992 Bol-3, page-31 to the case of Byram Pestonji Gariwala Vs. Union Bank of India and others.

27.         In view of the above decision Mr. Chowdhury argued that the earlier Judgment and decree obtained both the parties on compromise would be binding upon them and, as such, the instant suit is barred by res-judicata. More-so, he pointed that the plaintiff did not prayed any relief against that compromise decree in the prayer portion but it is apparent that all the prayer portion touch the merit of the earlier compromise decree. So, the learned Joint District Judge in passing the impugned judgment and decree committed no error nor the judgment and decree suffers for any legal infirmity and, as such, the instant appeal is liable to be dismissed.

28.         We have anxiously considered the submissions of the learned Advocate of the respective parties. We have meticulously examined the averment of the plaint and prayer portion of the instant suit. We have gone through the impugned judgment and decree passed by the Court below. Considering the application under Rule 11 of the Order 7 of the Code it appears that in the prayer portion except paragraph 10 nothing has been narrated for rejecting the plaint. We have examined the narration of paragraph 10 of the application for rejection of the plaint which runs as follows:

         h¡c£l c¡­ul L«a 1j pqL¡l£ SS Bc¡m­al ®cJu¡e£ ®j¡LŸj¡ ew 378/93 ®j¡LŸj¡u   Cw a¡¢l­M fÐcš e¡¢mn£ pÇf¢š BL«ø h¡c£ Hhw Aœ ¢hh¡c£l pj¡e Aw­n j¡¢mL¡e¡ ®O¡¢oa ¢Xœ²£ L¡kÑLl qCu¡ Bp¡ Hhw Eš² ¢Xœ²£ AcÉ¢h¢d Un challenged ¢hd¡u HLC ¢Xœ²£i¨š² pÇf¢š ¢eu¡ Aœ ®j¡LŸj¡ a¡vr¢eL Alr£u ¢hd¡u Eq¡l Bl¢S fÐaÉ¡MÉ¡e­k¡NÉ quz

29.         On perusal of the narration of the paragraph 10 it appears that another suit being Suit No. 378 of 1993 has been filed by one Md. Mosharaf Hossain against the A.M.G. Belayet Hossain and compromised the matter while the suit for foreclosure and realization of payment of Bank money was pending however, bank was not the party of that suit. On perusal of the supplementary affidavit dated 8th, December, 2016 the plaintiff annexed some document including the judgment and decree passed in earlier suit in favour of the bank and also annexed the judgment of the compromised decree. It is apparent from the face of the record that judgment and decree passed in the Artha Rin Case on 7th, August of 1999 before that both the plaintiff and defendant of the instant suit had obtained a compromise decree on 03 June 1997 pending the Artha Rin Case. One of the party of the compromise suit referring the compromise decree raised the question of res-judicata referring a decision of the Indian Jurisdiction.

30.         However, the learned Joint District Judge in the Judgement and decree dated 18.01.2016 opined that –

   AbÑ¡v h¡c£l Bl¢Sl ü£L«a j­a e¡¢mn£ pÇf¢š h¡hc f§­hÑ ®p¡­m p§­œ l¡u ¢Xœ²£ qu Hhw Eš² l¡u ¢Xœ²£ haÑj¡­e hq¡m l­u­Rz Eš² l¡u ¢Xœ²£l ¢hl¦­Ü h¡c£fr a¡l Bl¢S­a ®L¡e fТaL¡l fСbÑe¡ L­le e¡Cz ®k L¡l­Z Eš² l¡u ¢Xœ²£ hq¡m b¡L¡hÙÛ¡u HC ®j¡LŸj¡¢V h¡c£l ü£L«a j­aC ®lpS¤¢XL¡V¡ à¡l¡ h¡¢laz k¢cJ ®lpS¤¢XL¡V¡ e£¢a¢V HLC p¡­b BCeNa Hhw abÉNa ¢houz ¢L¿º k¢c h¡c£ fr Bl¢S­aC f§hÑhaÑ£ ®j¡LŸj¡l Lb¡ ü£L«a L­l ®p­rœ ®lpS¤¢XL¡V¡ ¢hou¢V öd¤j¡œ BCea ¢hou ¢qp¡­h f¢lN¢Za quz

31.         In that view of the matter the learned Joint District Judge allowed the application under Order 7 Rule 11 of the Code. Further he opined that the cause of action in respect of the suit is illegible.

32.         In the appeal crux point has to be decided whether the suit is barred by res-judicata, law of Arbitration and in the plaint no cause of action has been described for filing the suit.

33.         On bare reading of the plaint it appears that in so many paragraphs of the plaint the plaintiff described the facts and specifically in paragraph 9 stating the date of cause of action from which it appears that the opinion “the suit is barred by non disclosing the cause of action” is not correct.

34.         More-so, according to apex Court decision the cause of action is bundle of facts which may be gathered from whole averments of the plaint. Therefore, view taken by the learned Joint District Judge that cause of action is illegible is not correct.

35.         Next question whether the suit is barred by res-judicata or not. On perusal of the averment of the plaint it appears that the plaintiff narrated some facts including the facts of earlier compromise decree in paragraph 3 and 6 of the plaint. Wherefrom it is apparent that for the same property, between the same party, there was a compromise decree while the suit property was mortgaged to the bank however, in that suit i.e. suit No. 378 of 1993 the bank was not party and bank got the decree in favour of it in the year 1999 i.e. after the compromise decree. None of them raised any question or raised the said point before the Artha Rin Adalat referring the compromise decree.

36.         However, the facts remain is that both of them lost in the Artha Rin Case and property was declared as a mortgage property in favour of the bank and the suit was decreed for the purpose of selling the property to realize the loan money that decreee was not challenged either of the parties. It is, therefore, the question before us, after decree of Artho Rin Case if one of the party redeem the mortgage property in his favour paying the decretal amount whether he would be entitled to get the benefit of the transaction with the bank.

37.         We are of the considered view that as the appellate Court should not resolve and discuss the matter in details, because it is to be decided after appreciating evidence. Therefore, our opinion is it would be beneficial for both the parties to determined this question before the Court below at the trial after appreciating the materials on evidence. Therefore, we are of the opinion that the learned Joint District Judge in rejecting the plaint has failed to consider the averment of the plaint, side by side the plaintiff and the defendants case in juxta position of the yardstick of fair justice. 

38.         It is a long line of catena of our jurisdiction specially by the pronouncement of the apex Court that the question of limitation raised must be decided after appreciating the materials/evidence. The learned counsel for the appellant referred the decision to the case of Mahbubul Haque (Md) Vs. Md. A Kader Munshi reported in 52 DLR (AD) 49, to the case of Guiness Peat (Trading) Limited Vs. Md. Fazlur Rahman reported in 44 DLR (AD) 242 and 19 BLC(AD)143.

39.         In the case of Mabbubul Haque’s case was held as under:

   “Question of limitation and res-judicata raised in the application for rejecting the point are mixed question of law and fact which need thorough investigation on adequate evidence for arriving at a correct decision on framing specific issues by the trial Court.”

40.         In the case of Guiness Peat (Trading) Limited was held as under:-

   In an application for rejection of the plaint on the ground of non disclosure of cause of action the court need not dissect the plaintiff’s case part by part, if a part of the cause of action arises within its jurisdiction

A distinction is to be borne in mind between a case where the plaint does not disclose a cause of action and another where after considering the entire materials adduced in evidence the court finds that there is no cause of action. The plaint can only be rejected in the former case. A defendant’s plea that there was no cause of action for the suit must be rejected when his contention fails to show that the plaint did not even disclose a part of the cause of action. ”

41.         In the case of Shahjahan Siraj (Md) was held as under:-

   “ The Plea of res judicata is to be decided after framing an issue to that effect. There is no scope for application of section 11 of the code for rejection of plaint

42.         Now, the pertinent question has to address regarding the Arbitration as opined by the Court below. According to learned Joint District Judge the plaintiff has no authority to file the suit and, as such, the suit is barred.

43.         In the above backdrop we can notice the provision of section 7 of the Arbitration Act, 2001 which runs as under:

         7z p¡¢mp Q¤¢š²l BJa¡i¥š² ¢ho­u Bc¡m­al HM¢au¡lz - p¡¢mp Q¤¢š²l ®L¡e fr Afl ®L¡e f­rl ¢hl¦­Ü Eš² Q¤¢š²l Ad£­e p¡¢m­p AfÑ­Z pÇja ®L¡e ¢ho­u BCeNa L¡kÑd¡l¡ l¦S¤ L¢l­m, haÑj¡­e fÐQ¢ma AeÉ ®L¡e BC­e k¡q¡C b¡L¥L e¡ ®Le, HC BC­el ¢hd¡e hÉa£a AeÉ ®L¡e BCeNa L¡kÑd¡l¡l öe¡e£l HM¢au¡l Bc¡m­al b¡¢L­h e¡z

44.         On a careful reading the provision of section 7 of the Arbitration Act, 2001 we are of the considered view that the learned Joint District Judge has misconstrued the provision of section 7 of the Act, because neither of the party sought arbitration before any Court and no proceeding is pending in any Court regarding the prayer of the suit or for any dispute. So, we are of the considered opinion to invoke the Arbitration jurisdiction as bar to file the suit either of the party must file any proceeding before any Court seeking redress against another party invoking the provision of Arbitration clause before filing the suit however, in the present case no arbitration proceeding is pending regarding the suit property. We are, therefore, of the view that the prayers of the suit are not decidable by the Arbitrator as per Arbitration clause which reflected from pleadings and prayers of the suit because those are the beyond jurisdiction of Arbitrator and a competent Court of civil jurisdiction has to decide the suit in accordance with law. We have noticed the pleadings and prayers of the suit. On a careful scrutiny it is apparent that those claims and prayers are outside the clause of Arbitration of partnership deed because the Bank has already acquired the title of the suit property within the knowledge of both the parties which supersede the provision of Arbitration. We can place reliance in support of our view to the precedence of the case of Chittagong Port Authority and another Vs. M/s Crete Construction Company Ltd. & another  reported in 31 DLR (AD)138. Besides the defendant has already filed the written statement against the pleadings of the plaint taking clear defence. So, when the defendant surrender jurisdiction to the court instead of taking recourse of arbitration at the first instance, so later filing application for rejection of plaint is not entertainable, rather, it becomes academic. We find support of our view to the case of Seafarers Ino. through Shaw Wal-lace Pakistan Ltd. Vs. Province of East Pak reported in 20 DLR (SC) 225.

45.         In the result, the appeal is allowed.

46.         The impugned judgment and decree dated 18.01.2016 is hereby set aside.

47.         The application for rejection of the plaint is hereby rejected.

48.                   The learned District Judge is directed to proceed with the suit in accordance with law and dispose of the suit expeditiously within 01(one) year positively from the date of receipt of this judgment however, without any order as to cost.

49.         Office is directed to communicate the judgment and order at once.

 

Ed.