Md. Roushan Ali Vs. Abzal Hossain and others, 4 LNJ (2015) 683

Case No: Civil Revision No. 2207 of 2007

Judge: Borhanuddin,

Court: High Court Division,,

Advocate: Mr. Abul Kalam Mainuddin,,

Citation: 4 LNJ (2015) 683

Case Year: 2015

Appellant: Md. Roushan Ali

Respondent: Abzal Hossain and others

Delivery Date: 2015-03-16


HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Borhanuddin, J.

Judgment on
16.03.2015
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Md. Roushan Ali
. . . Petitioner
-Versus-
Abzal Hossain and others
...Opposite parties
 
Code of Civil Procedure (V of 1908)
Section 115(4)
Order VII, Rule 11
In order to decide an application under clause (d) of Order VII, Rule 11 of the Code, the averments made in the plaint are the germane and without addition or substraction of it must show that it is barred by any law which is lacking in the instant case for which the plaint is not liable to be rejected. . . . (17 and 18)
 
Mr. Abul Kalam Mainuddin, Advocate
. . . For the Petitioner

No One appears
..... For the Opposite Partites

Civil Revision No. 2207 of 2007
 
JUDGMENT
Borhanduddin, J.
 
Leave granted under section 115(4) of the Code of Civil Procedure.

This Rule has been issued calling upon the opposite party nos. 1-17 to show cause as to why the judgment and order dated 20.02.2007 passed by the learned Additional District Judge, 2nd Court, Gazipur, in Civil Revision no. 29 of 2006 affirming the order dated 30.03.2006 passed by the learned Senior Assistant Judge, Additional Court, Gazipur, in Title Suit no. 152 of 2005, should not be set aside and/or such other or further order or orders passed as to this court may seem fit and proper.

Facts relevant for disposal of the rule, in short, are that opposite party no.1 herein as plaintiff instituted Tile Suit No. 266 of 2004 in the 1st Court of Assistant Judge, Gazipur, for partition. On transfer in the Court of learned Assistant Judge, Additional Court, Gazipur, the suit was renumbered as Title Suit no.152 of 2005. The petitioner herein as defendant No.1 contested the suit and filed an application on 04.01.2006 under 0rder 7 Rule 11 of the Code of Civil Procedure for rejecting the plaint contending interalia that the suit is bad for hotchpotch, barred by limitation and the plaintiffs did not take any step for amendment of the plaint in light of the actual fact narrated in the written statement. Further contending that the plaintiffs have no manner of right, title and interest in the suit land; SA. and R.S. record of the suit land are not prepared in the name of plaintiffs or their predecessors and as such without challenging S. A and R. S. record and without praying for declaration of title and khas possession, instant suit for partition simplicitor is not maintainable and liable to be rejected.

The plaintiff-opposite party no.1 filed written objection against the application.

After hearing the parties and perusing the plaint, learned Senior Assistant Judge, Additional Court, Gazipur, rejected the application vide order dated 30.03.2006.

Being aggrieved, defendant no.1 as petitioner filed Civil Revision no.29 of 2006 in the Court of learned District Judge, Gazipur, under Section 115(2) of the Code of Civil Procedure. On transfer the Civil Revision was heard and disposed of by the learned Additional District Judge, 2nd Court, Gazipur, who after hearing the parties and perusing the record, dismissed the Civil Revision by his judgment and order dated 20.02.2007 and thereby affirmed the order passed by the learned Senior Assistant Judge.

Having aggrieved by and dissatisfied with the judgment and order, the defendant no.1 as petitioner preferred this application under section 115(4) of the Code of Civil Procedure and obtained leave and Rule and also an order of stay.

Mr. Abul Kalam Mainuddin, learned advocate appearing for the petitioner submits that both the court below committed an error of law resulting in an error in the decision occasioning failure of justice in not considering that instant suit for partition simplicitor without seeking declaration of title and khas possession in the suit land is not maintainable inasmuch as it is apparent on plain reading of the plaint that the plaintiffs or their predecessors have/had no manner of right, title and possession in the suit land which is also evident from S. A. and R. S. record which are not prepared in the name of plaintiffs or their predecessors. He also submits that both the court below committed an error of law resulting in an error in the decision occasioning failure of justice in holding that plaint of the suit is not fall within the purview of 0rder 7 Rule 11 of the Code of Civil Procedure and defendant-petitioner did not state in his application under what Sub-rule of 0rder 7 Rule 11 the plaint should be rejected though on plain reading of the plaint it is very much evident that the plaint is liable to be rejected under clause (d) of 0rder 7 Rule 11 i.e. barred by law. He next submits that learned Senior Assistant Judge rejected the application on the ground that the case is ready for final hearing and thereby committed an error of law inasmuch as court is competent to reject the plaint at any stage of the proceeding if it finds that condition under Order 7 Rule 11 exists. He further submits that from the averments and prayer of the plaint, ultimate result is clear as day light that the suit is not maintainable and therefore such a suit should be burried at its inception so that no further time is consumed in a fruitless litigation. In support of his submissions, learned Advocate referred to the case of  Abdul Jalil and others -Vs- Islamic Bank Bangladesh Ltd. and others, reported in 53 DLR (AD) 12; the case of Umesh Chandra Saxena and others-vs- Administrator General, U.P. Allahabad and others, reported in AIR 1999 (Allahabad)109; the case of Bangladesh Jatiya Samabaya Shilpa Samity Ltd.-Vs- Shan Hosiery, Proprietor Md. Abu Taleb and others, reported in 10 BLC(AD) 8 and the case of Rasheda Begum-Vs- M. M. Nurussafa and others, reported in 24 BLD(AD) 223.

No one appeared on behalf of the opposite parties.

At the very outset, it may be mentioned here that draft of the revisional application under Section 115(4) of the Code of Civil Procedure is not happy one inasmuch as the case of the parties are not narrated in the application, even it is not stated whether the opposite parties filed written statement or not. However, since leave granted and Rule issued, for disposal of the same I have gone through the plaint filed by the plaintiff-opposite parties. It appears from averments of the plaint that the suit land originally belonged to Dukhai Soyal. Plaintiff’s narrated genelogy of their predecessors who owned the suit land and claimed themselves as heirs of the owners of the suit land and also claimed that the suit land is not partitioned amongst the co-shaers who are in possession of the ejmali suit land. It is also stated that the plaintiffs and defendants are possessing the suit land as co-sharers and filed the suit for partition on refusal of partition of the suit land by the defendants.

Defendant No.1 of the suit filed application under 0rder 7 Rule 11 of the Code of Civil Procedure contending interalia that the suit is bad for hotchpotch, barred by limitation and the plaintiffs did not take any step for amendment of the plaint inspite of actual facts as narrated in the written statement. Further contending that the plaintiffs got their portion of the land long before and are in possession of the same and as such the suit is liable to be rejected.

Upon hearing the parties and perusing the plaint, learned Senior Assistant Judge rejected the application under 0rder 7 Rule 11 of the Code of Civil Procedure with a finding that the plaintiffs instituted the suit for partition claiming themselves as co-sharers of the suit land and filed documents in support of their claim, as such it requires evidence to determine title and possession of the plaintiffs in suit land. The learned Additional District Judge maintained order of the learned Senior Assistant Judge holding that “On perusal of the plaint of the original suit it appears that the plaint of the original suit is not fall within the purview of Sub-Rule (a),(b),(c),(d), of Rule 11 of 0rder 7. Plaintiff disclosed the cause of action; Plaint is not under valued; Plaintiff paid proper court fees and plaint is not barred by any law. Therefore the plaint of the original suit no.152 of 2005 is not liable to be rejected. The averments of the application for rejecting the plaint are a factual matter. It can not be decided at this stage of the suit.”

On perusal of the application under 0rder 7 Rule 11 it also appears that the defendant petitioner did not state under what Sub-rule of Rule 11 of Order 7 the plaint should be rejected.
Order 7 Rule 11 of the Code of Civil Procedure runs as follows:
 
11. The plaint shall be rejected in the following cases:-
  1. where it does not disclose a cause of action;
  2. 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;
  3. 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 to do so; and
  4. where the suit appears from the statement in the plaint to be barred by any law.”
 On perusal of the plaint and application under Order 7 Rule 11 filed by the petitioner, primafacie it appears that the plaintiffs and defendants are heirs of the original owners of the suit land. Paragraph Nos. 3 and 4 from the application under Order 7 Rule 11 of the Code are quoted hereinunder:
 
“৩) যেহেতু মোকদ্দমাটি পক্ষদোষ, তামাদিতে বারিতসহ মোকদ্দমার নালিশী সম্পত্তি বিষয়ে জবাবের প্রকৃত ঘটনায় মালিকানা সংত্র্রা ভুলসহ বিসরিত ভুলত্র্রটি উল্লেখ করা স্বত্তেও বাদীপক্ষ যথাযথভাবে আরজী সংশোধনসহ কোনরুপ পদক্ষেপ গ্রহণ করিতে পারে নাই এমনকি করার ইচ্ছাও প্রকাশ করে নাই, যাহার কারণে অত্র দরখাস¹ দাখিল করা হইল
৪) যেহেতু বাদীপক্ষ তাহাদের প্রাপ্য অংশ বহু পূর্বেই বুঝিয়া নিয়া তাহাদের অংশে ভোগ দখলে আছে অথচ বাদীপক্ষের স্বত্ব ও দখল বিহীন অপরের সম্পত্তি নিজেদের সম্পত্তি দাবী করিয়া নালিশী সম্পত্তি হিসাবে মোকদ্দমার তপছিলভুক্ত করিয়া কোনরুপ কারণ বিহীন অত্র হয়রানীমুলক মোকদ্দমা দায়ের করিয়াছে যাহার আরজী নাকচ যোগ্য”

No where in the application under Order 7 Rule 11 of the Code, it is denied that the plaintiffs are heirs of the original owners of the suit land, rather it is stated in paragraph No.4 of the application that the plaintiffs got their share long before and are in possession of the same. It also appears from the order of the learned Senior Assistant Judge that in support of their claim as co-sharers in the suit land, plaintiffs filed documents alongwith the plaint, as such both the courts below rightly held that it is matter of evidence whether the plaintiffs have title and possession in the suit land. The appellate court below correctly arrived at a finding that the statements of the application for rejecting the plaint are factual matter and cannot be decided at this stage of the suit.
 
For the purpose of deciding an application under Clause (d) of Order 7 Rule 11 of the Code, the averments in the plaint are the germane. The statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11. This is not so in the present case.

I am inclined to concur with findings of the court below that the statements made in the application under Order 7 Rule 11 of the Code of Civil Procedure does not come within the purview of any of the sub-rules mentioned therein for rejecting the plaint.

In the facts and circumstances of the case, I do not find any merit in the Rule.

The cases cited by the learned Advocate for the petitioner are not applicable in the facts and circumstances of the case in hand.

Accordingly, the Rule is discharged.

Order of stay granted at the time of issuance of the rule is hereby vacated.

Learned Senior Assistant Judge, Additional Court, Gazipur, is directed to dispose of the Civil Suit no. 152 of 2005 expeditiously, preferably within 3(three) months from the date of receipt of this judgment.
 
   Communicate a copy of this judgment to the Court concern at once.

   Ed.