Md. Rabiul Munshi Vs. Md. Foyez Ahmed Jewel, (Syed Md. Ziaul Karim, J.)

Case No: First Appeal No. 180 of 2017

Judge: Syed Md. Ziaul Karim, J. And Sheikh Md. Zakir Hossain, J

Court: High Court Division,

Advocate: Mrs. Rabeya Bhuiyan, Senior Advocate, with Mr. Md. Farid Uddin, Advocate, ,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Md. Rabiul Munshi and four others

Respondent: Md. Foyez Ahmed Jewel and Fourteen others

Subject: Code of Civil Procedure

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

Syed Md. Ziaul Karim, J.

And

Sheikh Md. Zakir Hossain, J

 

Judgment on

26.02.2018

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Md. Rabiul Munshi and four others

. . Plaintiff-Appellants

-Versus-

Md. Foyez Ahmed Jewel and Fourteen others

. . . Defendant Respondents

Code of Civil Procedure (V of 1908)

Section 151

Order VII, Rule 11(d)

The plaint of a suit can be rejected by exercising inherent powers of Court, when from plain reading of the plaint, it appears that the suit is barred under Order VII Rule 11 of the Code. Clause (d) of the said rule authorise the rejection of a plaint when the suit appears from the statements in the plaint to be barred by any law. This clause applies when it appears from the statements in the plaint that the suit is barred but it has no application where there is no clear or specific admission in the plaint suggesting that the suit is barred. This clause is attracted only when on the admitted facts as appearing from the plaint itself the suit is prima facie barred. As for instance when from the statements made in the plaint it appears that the cause of action arose beyond the period of limitation fixed under the statute and no indication is given that limitation has been saved, the plaint may be rejected. In a proper case, when it appears to be barred by limitation, the plaint may be allowed to be amended without rejection. It is not mandatory for the Court to reject the pliant. The Court below without considering the materials on record and aforesaid principles of law, by rejecting the plaint of the suit committed an error of law. Therefore, the impugned judgment and decree of the Court below is liable to be interfered by the High Court Division.                                             . . . (15, 18 and 29)

Mrs. Rabeya Bhuiyan, Senior Advocate, with

Mr.  Md. Farid Uddin, Advocate,

. . . For the plaintiff appellants.

Mr. Kamrul Haque Siddiqui, Advocate with

Mr. Partha Sarathi Mondal, Advocate,

. . .For the defendant respondent Nos. 1,3,4 and 15.

No one appears,

. . .For the defendant respondent nos. 2 and 5-14.

Mrs. Sakila Rowshan, D.A.G. with

Mrs. Sharmina Haque, A.A.G.  

Mr. Kalipada Mridha, A.A.G. and

Mr. Mehadi Hasan, A.A.G.

. . . For the Proforma defendant respondent nos.16-18.

JUDGMENT

Syed Md. Ziaul Karim, J: By this appeal, the plaintiff appellants have challenged the legality and propriety of the judgment and decree dated 24-04-2017 passed by learned Joint District Judge, Second Court, Comilla, rejecting the plaint of Title Suit no. 34 of 2010 as not being maintainable.

2.             Materials fact leading to this appeal are that on 16-03-2010 the appellants as plaintiffs instituted Title Suit no. 34 of 2010 in the Second Court of Joint District Judge, Comilla impleading the respondents as defendants for declaration that the land described in Schedule ‘Ka’ of the plaint have the easement right of the locality and also for declaration that the deed no. 2158 dated 06-04-2009 in respect of 1.72 acres of land is illegal, void, inoperative and not binding upon the locality. The relieves claimed in the suit reads as hereunder: ‘’

   L) BlS£l L ag¢pm h¢ZÑa e¡¢mn£ pÇf¢š­a Aœ ®j¡LŸj¡l h¡c£ frNZ ab¡ Hm¡L¡h¡p£N­Zl CS­j¾V üaÄ ü¡bÑ B­R j­jÑ HL l¡u J ¢XH²£ Aœ h¡c£N­el Ae¤L¥­m J ¢hh¡c£N­Zl fË¢aL¥­m fËQ¡l L¢l­a ;

    M)   BlS£l M ag¢pm h¢ZÑa e¡¢mn£ c¢mm¢V ®h-BCe£, AL¡kÑLl J a¡q¡ h¡c£NZ ab¡ Hm¡L¡h¡p£N­Zl Efl h¡dÉLl e­q j­jÑ l¡u J ¢XH²£ fËQ¡l L¢l­a ;

    N)  ju Bc¡ma hÉu¡¢cl ¢XH²£ Aœ h¡c£­cl Ae¤L¥­m ¢hh¡c£N­el fË¢aL¥­m fËc¡e L¢l­a, Hhw

    O) Bq~e J CL¥C¢V j­a frNZ AeÉ¡eÉ ®k pLm fË¢aL¡l/ EfL¡l f¡Ju¡l qLc¡l ®p j­jÑ B­cn ¢c­a j¢SÑ qu z

3.             In suit, the plaintiffs filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure for restraining the defendant nos. 1-15 from interfering with or causing interference with the public use position, nature and character of the suit land in any way. Defendant nos., 1-4 appeared in the suit and filed written objection against such application denying all the material allegations made in the application for injunction. The application for injunction came up for hearing on 24-04-2017 but the learned Judge of the Court below at the time of disposing of the application for injunction rejected the plaint of suit as barred under estoppel, waiver and acquiescence by the impugned judgment and decree. 

4.             Feeling aggrieved by the impugned judgment and decree the plaintiffs as appellants preferred the instant appeal.

5.             The learned Advocate appearing for the appellants seeks to impeach the impugned judgment and decree on three fold arguments:

Firstly: The question of estoppels, waiver and acquiescence are virtually come within the ambit of principle of resjudicata. It is well settled that the question of resjudicata is mixed question of law and fact and the same are the subject-matter of the evidence which cannot be adjudicated before trial;

Secondly: The plaint of the suit clearly disclosed the cause of action and from plain reading of the plaint it appears that the same is not at all barred under law. The learned Judge by rejecting the plaint relying on a previously instituted suit which was earlier rejected under Order VII Rule 11 of the Code committed an error of law thereby causing miscarriage of justice.

Third and lastly: Even the former Title Suit no.62 of 2000 was rejected under Order VII Rule 11 of the Code but under Order VII Rule 13 of the Code, afresh suit can be entertained. So the impugned judgment and decree cannot be sustained in the eye of law.

6.             The learned Advocate appearing for the respondent nos.1, 3, 4 and 15 opposes the appeal and submits that although the instant suit was instituted as a representative capacity by the plaintiffs but no new claim has been asserted in the plaint. He adds that over the self-same matter in issue and schedule land earlier Title Suit no. 62 of 2000 was instituted. It’s plaint was rejected under Order VII Rule 11 of the Code. The plaintiffs or any of the person of the same locality did not seek their redress to any apex Court of law. So the instant suit over the self-same point in issue is barred under law. The learned Counsel lastly submits that the learned Judge of the Court below after considering the materials on record rightly rejected the plaint of the suit by the impugned judgment and decree which calls for no interference by this Court.

7.             No one appears on behalf of the respondent nos.2, 5-14 to oppose the appeal.

8.             The learned Deputy Attorney General appearing on behalf of the proforma defendant respondent nos.16-18 opposes the appeal however she submits that the suit land was rightly recorded in the name of the Government and the same is for the public use. So the other defendants have no authority over the suit land.

9.             In order to appreciate their submissions we have gone through the records and given our anxious consideration to their submissions.

10.         The point for consideration whether the impugned judgment and decree calls for interference by this Court.

11.         On going to the materials on record it transpires that the plaintiffs in their representative capacity instituted the instant suit for declaration that 1.72 acres of land described in the schedule of the plaint are for public use and the local peoples have the easement right over it and also for declaration that the deed executed in favour of the defendant nos.1-4 is illegal, void, inoperative and not binding upon the peoples of the localities.

12.         The record indicates that in C.S. khatian no.7 of plot no. 31 was recorded as ®N¡h¡j and also being used by the locals peoples. It is true that earlier local peoples instituted identical suit being Title Suit no. 62 of 2000 but the same was not decided on merit. The plaint of that suit was rejected under Order VII rule 11 of the Code. In such situation we feel that over the self-same cause of action identical and subsequent suit is not barred under Order VII Rule 13 of the Code. The learned Judge most erroneously relied on the decision dated 01-03-2001 passed in Title Suit no. 62 of 2000 and came to a conclusion that the instant Title Suit no.34 of 2010 is barred by estoppels, waiver and acquiescence. It is pertinent to point out that the aforesaid principles will come within the ambit of principle of Resjudicata.

13.         In the case of Mahbubul Haque (Md.) vs. Md. A. Kader Munshi 52 DLR(AD) 49 held:

Question of limitation and resjudicata raised in the application for rejecting the point are mixed questions 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.”

14.         The aforesaid views receives support in the case of Sreemati Pushpa Rani Das vs. AHM Habibur Rahman and others 13 BLD (AD) 217 held:

“The plea of resjudicata is not available in rejecting a plaint under Order VII Rule 11 C.P.C. This can only be decided on the trial and it cannot be decided from a reading of plaint –resjudicata can be made an issue in the suit.”

15.         The plaint of a suit can be rejected by exercising inherent powers of Court, when from plain reading of the plaint, it appears that the suit is barred under Order VII Rule 11 of the Code.

16.         For the convenience of understanding the provisions of Order VII rule 11 of the Code of Civil Procedure reads as hereunder:

″ 11- The plaint shall be rejected on the following issues:

(a)    Where it does not disclose a cause of action.

(b)    Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so;

(c)    Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails do so.

(d)    Where the suit appears from the statement in the plaint to be barred by any law.″

         Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not exceed twenty one days.

17.         From the plain reading of the statements of plaint of the instant suit it is evident that the same clearly discloses the cause of action; the relief claimed is not undervalued; the plaint was not written upon paper insufficiently stamped; from the statement of the plaint it does not appear that the suit is barred by any law.

18.         Now coming to clause (d) of rule 11, it appears that clause (d) of the rule authorise the rejection of a plaint when the suit appears from the statements in the plaint to be barred by any law. This clause applies when it appear from the statements in the plaint that the suit is barred but it has no application where there is no clear or specific admission in the plaint suggesting that the suit is barred. This clause is attracted only when on the admitted facts as appearing from the plaint itself the suit is prima facie barred. As for instance when from the statements made in the plaint it appears that the cause of action arose beyond the period of limitation fixed under the statute and no indication is given that limitation has been saved, the plaint may be rejected. In a proper case, when it appears to be barred by limitation, the plaint may be allowed to be amended without rejection. It is not mandatory for the Court to reject the pliant. It may ask the plaintiff to amend it so as to make suit maintainable. Where the plaintiff does not comply with such an order the Court may reject the plaint. Reference may be made to the cases reported in 18 CWN 1340.  AIR 1928 Oudh 495 and AIR 1953 Cal.222.

19.         In the case of Ratan Chand Dharam Chand Vs. The Secretary of State for India in Council and another, reported in 18 CWN 1340, a Division Bench of Calcutta High Court while considering the scope of Order VII, rule 11(d) observed as follows:-

′′ That rule obviously has no application, for there was no statement in the plaint which suggested that the suit was barred. On the contrary it was specifically stated that notice under sec. 80 had been served on the ′′Collector′′ without specifying the district. The defect was not discovered till after the defendants had entered appearance and it was then too late to reject the plaint ′′.

Similarly in the case of Maqsood Ali Vs. Deputy Commissioner, Bara Banki and another, reported in A.I.R. 1928, Oudh, 495, a Division Bench of Oudh held that if the suit was not on the face of it barred by any law, Order VII, rule 11(d) had no application. The relevant portion of the judgment ran as follows:

We do not consider that the suit appeared from the statement in the plaint to be barred by law and we do not think that rule had any application. He has pointed out to us that in a suit which was filed in a similar manner a Bench of the Allahabad High Court stated in Nachhu Vs. Secy. of State that the plaint ought to have been rejected under the proviso of s. 54(c) of the old Code of Civil Procedure, that clause was exactly the same as Order VII rule 11(d). The learned Judge composing the Bench gave no reasons for this conclusion and did not give any effect to it for we find that the suit with which they were concerned had been dismissed but the Subordinate Judge and as their order was an order dismissing the appeal, the plaint was apparently not rejected. Their Lordships said: ′′It ought to have been rejected′′ but gave no effect to that view. We have only to note in respect of this point that exactly the same question could have been raised in Bhagchand Dagadusa Vs. Secy. of State. There the suit had been dismissed by the District Judge. The appeal had been dismissed by the High Court and the appeal was again dismissed by their Lordships of the Judicial Committee. It was not there suggested that the proper procedure was to reject the plaint. In a case such as this we are of opinion that the suit is not on the face of it barred by law. The very arguments which have been advanced in appeal show that the suit on the face of it is not barred by law, as the suit has been found to be a suit that has to be dismissed after consideration of the legal arguments. Therefore we are unable to accept this view of the learned Counsel.

20.         The Calcutta High Court in the case of Sreedam Chandra Bhur Vs. Tencori Mukherjee and others reported in A.I.R. 1953 Cal. 222 also held that Order VII rule 11(d) was attracted only when on the admitted facts as appearing from the plaint itself the suit was prima facie barred. The Division Bench in this connection observed as follows:-

′′ This clause is attracted only when on the admitted facts as appearing from the plaint itself the suit is prima facie barred. As for instance when from the statements made in the plaint it appears that the cause of action arose beyond period of limitation fixed under the statute and no indication is given that limitation has been saved, the plaint may be rejected. Even in such a case, an opportunity is to be given to the plaintiff to amend the plaint by setting out an acknowledgement in writing signed by the defendant within the period of limitation if it is so prayed, and that without passing an order for rejection of the plaint. ‘Gunnaji Bhavaji Vs. Makanji  Khoosal Chand’, 34 Bom. 250. As was observed in ‘Ratan Chand V. Secy. of State 18 Cal. WN 1340, action is to be taken under Or. VII, r. 11 of the Code of civil Procedure only if there is a clear and specific admission in the plaint from which it follows that the suit is barred. Reference may also be made to the observations of this Court.’ Prankrishna Vs, Kripannath’. 21 Cal. WN 209 held:

  Let us now consider whether on the plaint as filed the Court will be justified in rejecting in limine the plaint under  cl.(d), r.11, Or. VII, Civil P.C.  In the body of the pliant there is no admission for the Council of the Assembly is the Government under s. 80, Civil P.C. On the other hand, it is seriously contested on behalf of the plaintiff that neither of the two bodies can even be deemed to be the government. The learned Subordinate Judge refers to his order vaguely to the Trend of French Statutes conferring greater and greater powers on the French Settlement in India and creating a ′Council du Government′ there and later a cutting out Chandernagore from the Federation and conferring on Chandernagore all those powers with a separate delegate of the ‘Commissionaire de la re-oblique, it is evident that the Chandernagore administration is a government in the grammatical and ordinary sense of the word though its functions may fall short of the those of the Governments existing in India.

We do not think it necessary to refer to other points urged before us by the contending parties. Suffice it to say that the question whether even if the Code of Civil Procedure applies, whether s. 80 would be attracted or not cannot be decided merely on the plaint as it stands. The Court should have registered the plaint, issued notices on the defendants and allowed them to file their written statements. After issues were raised it would have been open to the Court to take up one or more of the issues as preliminary ones and decide the same. Objection that had been raised by the Court ‘suo -motu’ and such other objection as may be raised by the defendants would have to be tried on the merits, and only after all the necessary facts and materials are brought before the Court.′′

21.         There is no reason to differ from the above principles of law. In the instant case, there is nothing on record to show that on the admitted facts as appearing from the plaint itself the suit is prima facie barred. So the rule 11(d) is not at all attracted here and the plaint cannot be rejected on that score.

22.         In the case of Sundar Ali being dead his heirs: Mannan and others Vs. Md. Serajul Islam Sarker and others 56 DLR(AD) 210 held:

For the ascertainment of the cause of action the Court is required to read the plaint in its entirety.

23.         In the case of Abdul Malek Sawdagar Vs. Md. Mahbubey Alam and others 57 DLR(AD) 18 held:

The question whether the plaint is liable to be rejected being barred by law must be apparent from the statement made in the plaint itself and not from the written statement or any other material other than that has been put in the plaint.

24.         In the case of Md. Abul Khair Vs. Pubali Bank Ltd. and another 21 BLD (AD)32=53 DLR (AD) 62 held:

Where in a suit an application under Order VII Rule 11 of the Code is filed for rejecting the plaint on the ground that the averments made in the plaint do no disclose a cause of action for the suit, the Court is not called upon to decide the suit on merit on taking evidence. It is only the averment made in the plaint which are to be considered to come to a finding as to whether those disclose a cause of action. The Court while deciding such application is not permitted in law to travel beyond the averments made in the plaint.

25.         In the case of Afzal Hossain Diptee Vs. Radha Kanta Korati and others 15 BLC 196 held:

“Code of Civil Procedure

Order VII rule 11

On going to materials on record it transpires that the grounds urged for rejection of the plaint are absolutely the subject matter of evidence, which cannot be decided before taking evidence. On plain reading of the statements of the plaint it is evident that the same clearly discloses the cause of action, the relief claimed is not under valued, the plaint was not written upon paper insufficiently stamped and not barred by any other law. The question whether the plaint is liable to be rejected being barred by law must be apparent from the statement made in the plaint itself and not from the written statement or any other material other than that has been put in the plaint.”

26.         In the case of Bangladesh Water Development Board Vs. Contractor, Manu Barrage 9 BLT 21 held:

“Arbitration Act, 1940

Section -32

Whether the suit instituted in presence of the arbitration agreement is maintainable.

Held: We find no such provisions in the Act barring a suit on the ground of existence of an arbitration agreement.”

27.         In the case of Shafi A. Chowdhury Vs. Pubali Bank Ltd. and others 54DLR 310 held:

Section 11 & Order VII rule 11 of the Code.

Ordinarily, a plaint should not be rejected under Order VII rule 11 of the Code on the ground of res judicata unless it is so palpably clear and obvious from a meaningful reading of the plaint that no further evidence is required.”

28.         All the facts and submissions of the learned Counsel for the appellant indicates that the plaint of the suit should not be rejected by exercising the inherent Power of the Court by taking the recourse of Order VII Rule 11 (d) of the Code.

29.         In view of the above, the Court below without considering the materials on record and aforesaid principles of law, by rejecting the plaint of the suit committed an error of law. Therefore, the impugned judgment and decree of the Court below is liable to be interfered by the High Court Division.                    

30.         Moreover the impugned order in its entirety is not well founded in the facts and circumstances of the case. So, the submissions advanced by the learned Counsel for the appellants prevails and appears to have a good deal of force. On the contrary the submissions advanced by the learned Counsels for the respondents are not the correct exposition of law and facts. So we are unable to accept their submissions.

31.         In the light of discussions made above and the preponderant judicial view emerging out of the authorities referred to above we are of the view that the impugned judgment and decree suffers from legal infirmities and calls for interference by this Court. Thus the appeal having merit succeeds.

32.         In view of foregoing narrative, the appeal is allowed. The impugned judgment and decree dated 24-04-2017 passed by the learned Joint District Judge, Second Court, Comilla, in Title Suit no. 34 of 2010 is hereby set-aside. The Title Suit no. 34 of 2010 shall proceed in accordance with law.

33.         The office is directed to communicate the order at once.

Ed.



First Appeal No. 180 of 2017