Md. Nazir Hossen and others Vs. Advocate Feroz Md. Faruque and another, 1 LNJ (2012) 641

Judge: Sheikh Abdul Awal,

Court: High Court Division,,

Citation: 1 LNJ (2012) 641

Case Year: 2012

Appellant: Md. Nazir Hossen and others

Respondent: Advocate Feroz Md. Faruque and another

Delivery Date: 2012-06-19

HIGH COURT DIVISION
(CIVIL RIVISIONAL JURISDICTION)
 
Sheikh Abdul Awal, J.

Judgment
19.06.2012
 
 
Md. Nazir Hossen and others.
...Defendant-Petitioners
          Vs.
Advocate Feroz Md. Faruque and another.
...Plaintiff-Opposite parties.
 
Code of Civil Procedure (V of 1908)
Order XXXIX, rule 2(3)
It appears that the plaintiff opposite parties have failed to prove the allegation of violation by adducing corroborative or reliable evidence that the defendant-petitioners disobeyed the order of injunction. …(13)

Code of Civil Procedure (V of 1908)
Order XLI, rule 31
The Court of Appeal below without adverting the material findings of the trial Court set aside the order of the trial Court and sentenced the petitioners to undergo civil imprisonment for 15 days which is not a proper judgment of reversal.... (14)

39 DLR 260 ref.
 
Civil Revision No. 2998 of 2011
 
Judgment
Sheikh Abdul Awal, J:
 
          This Rule was issued calling upon the opposite parties to show cause as to why the judgment and order dated 27.4.2011 passed by the learned District Judge, Kurigram in Miscellaneous Appeal No.18 of 2010 allowing the appeal and sentencing the petitioners in civil imprisonment for a period of 15 days under Order XXXIX, Rule 2(3) of the Code of Civil Procedure after setting-aside the order No.27 dated 23.02.2010 passed by the learned Assistant Judge, Rajarhat, Kurigram in Miscellaneous (Violation) Case No.13 of 2008 should not be set-aside.
 
2.     The brief fact relevant for disposal of this Rule  is that the opposite party Nos.1 and 2 as plaintiffs filed Other Class Suit No.46 of 2008 in the Court of learned Assistant Judge, Rajarhat, Kurigram against the petitioners as defendants along with an application for ad-interim injunction in respect of possession of the "Ka" schedule land of the plaint.
 
3.     The learned Assistant Judge, Rajarhat, Kurigram after hearing the parties by his order dated 6.5.2008 allowed the prayer for ad-interim injunction. Thereafter, on 7.5.2008 the defendant-petitioners entered appearance in the suit and filed written objection against the said order of ad-interim injunction. The learned Assistant Judge, Rajarhat, Kurigram, however, on the same day after hearing the parties by his order dated 7.5.2008 confirmed the ad-interim order of injunction dated 6.5.2008.
 
4.     The defendant-petitioners thereafter, filed Miscellaneous Appeal No.73 of 2008 against the said order of ad-interim injunction along with a prayer for stay.
 
5.     The learned District Judge, Kurigram after hearing the parties fixed the appeal for hearing without any order of stay. In this  background of the case the plaintiff-opposite parties filed a Violation  Miscellaneous Case stating that the defendant-petitioners  by violating Court's order cultivating the land which caused huge loss and injury to the plaintiff-opposite parties amounting to Tk.1,20,000/- in each person. The said Violation Miscellaneous Case was registered as Miscellaneous (Violation) Case No.13 of 2008.
 
6.     The learned Assistant Judge after hearing the parties and on considering the evidence on record by order dated 23.02.2010  rejected the Miscellaneous (Violation) Case.
 
7.     Unsuccessful, plaintiff-opposite parties, thereupon, preferred Miscellaneous Appeal No.18 of 2010. The learned District Judge, Kurigram after hearing the parties by the impugned judgment and order dated 27.4.2011 allowed the appeal and sentenced the petitioners to undergo civil imprisonment for 15 days under Order XXXIX, Rule 2(3) of the Code of Civil Procedure.
 
8.     Being aggrieved by the aforesaid judgment and order dated 27.4.2011 the petitioners moved this Court and obtained the present Rule.
 
9.     Mrs. Nahid Mahtab, the learned Advocate appearing for the petitioners after placing the deposition of witnesses and other material on record including the impugned judgment and order dated 27.4.2011  submits that the impugned judgment is not a proper judgment of reversal inasmuch as the learned District Judge without adverting any material finding of the trial Court below abruptly set-aside the order of the trial Court and sentenced to undergo civil imprisonment for 15 days  to the petitioners which resulted in an error in the decision occasioning failure of justice. She next submits that the learned Assistant Judge on  due consideration of the evidence of PWs. rightly arrived at a finding that the plaintiff-opposite parties miserably failed to prove the allegation of violation against the defendant-petitioners and as such the impugned judgment of reversal is liable to be set aside. The learned Advocate further submits that the petitioner did not in any way violate or disobeyed the order of the Court and the opposite parties failed to prove that the petitioners violated the order of the Court and as such, the finding of the learned  District Judge  is palpably erroneous and not sustainable in law. The learned Advocate further submits that the impugned judgment and order is also not sustainable in view of the fact that the learned District Judge failed to come to any finding that the petitioners wilfully disobeyed the Court’s order. MS. Nahid Mahtab to fortify her argument has relied on a decision reported in 39 DLR 260.
 
10.   On the other hand, Mr. A. F. M. Meshbahuddin, the learned Advocate appearing for the opposite parties supports the impugned judgment and order, which was according to him just, correct and proper.
 
11.   I have considered the submission of the learned Advocates for both the sides and perused the Revisional application, impugned judgment and order along with other materials on record. It is found that the plaintiff-opposite parties in order to prove the order of violation examined 2 PWs; namely, PW-1, Advocate, Firoz Md. Faruque, who in his deposition stated that: “ঘটনার তাং আমি চিলমারী­তে ছিলাম। আরজী­তে সময় ভোর বেলা বলা অা­ছে। ঘটনা বড় ভাই­য়ের কা­ছে শু­­নছি। আমি ছিলাম না। সালাম ফো­­ন জানি­­য়­ছে। সালাম সাক্ষী আ­­ছ। ভাই সাক্ষী নাই। ৩/৪ দিন পর ঘটনাস্থলে যাই। রোপা লাগা­নো ছিল না। জমি তৈরী ছিল। ঘটনা ওসমান, সালাম এরা দে­খে­ছে। জমির পা­শের চৌহদ্দির লোক সাক্ষী আ­ছে।”
 
12.   PW-2, Asir Uddin Bepari in his cross-examination admitted that জমি নি­য়ে কোন মারামারি হয় নাই বা কোন ঘটনা হয় নাই।
 
13.   On going through the evidence of PWs, it appears that the PWs. are not eye witnesses to the occurrence. It also appears that eye witnesses were withheld by he plaintiffs without assigning any reason whatsoever. The trial Court below upon hearing the parties and on considering the evidence on record arrived at a finding that the plaintiff-opposite parties could not prove the allegation of violation by adducing corroborative or reliable evidence. Thus, on consideration of the evidence on record, I find that the plaintiff-opposite parties failed to prove the case strictly by adducing independent and reliable evidence that the defendant-petitioners disobeyed the order of injunction.
 
14.   On a careful examination  of the impugned judgment and order together with the evidence of PWs and DWs,  it appears that the Court of appeal below without adverting the material findings of the trial Court below set-aside the order of the trial Court below and sentenced the petitioners to undergo civil imprisonment for 15 days.  Therefore, I am of the view that the impugned judgment is not a proper judgment of reversal inasmuch as the Court of appeal below without adverting the material findings of the trial Court below abruptly set- aside the order of the trial Court and sentenced the defendant-petitioners to undergo civil imprisonment for 15 days. Thus, I find considerable merit in the submission of the learned Advocate for the petitioners.
 
15.   For the reasons stated above, I am inclined to hold that the learned District Judge seriously erred in law in passing the impugned order without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the subject and the same has resulted in an error in the impugned decision occasioning failure of justice.
 
16.   In the result, the Rule is made absolute. The impugned judgment and order dated 27.4.2011 passed by the learned District Judge, Kurigram in Miscellaneous Appeal No.18 of 2010 allowing the appeal setting-aside the order No.27 dated 23.02.2010 passed by the learned Assistant Judge, Rajarhat, Kurigram in Miscellaneous (Violation) Case No.13 of 2008 is set-aside. The order No.27 dated 23.02.2010 passed by the learned Assistant Judge, Rajarhat, Kurigram in Miscellaneous (Violation) Case No.13 of 2008 is hereby restored. The order of stay granted earlier by this Court stands vacated.
 
17.   However, the trial Court concerned is directed to proceed with the suit expeditiously.
 
        Let a copy of this judgment be communicated to the Courts concerned at once.
 
Ed.