Md. Saiful Islam Vs. A. K. Fozlul Haque and others, 3 LNJ (2014) 457

Case No: Civil Revision No. 128 of 2013

Judge: Sheikh Abdul Awal,

Court: High Court Division,,

Advocate: Mr. A. J. Mohammad Ali,Ms. Rubaiyat Hossain,Mr. Mohammad Nurul Haque,Mr. Md. Abdul Hai,,

Citation: 3 LNJ (2014) 457

Case Year: 2014

Appellant: Md. Saiful Islam

Respondent: A. K. Fozlul Haque and others

Delivery Date: 2014-05-06


HIGH COURT DIVISION
(Civil Revisional Jurisdiction)
 
Sheikh Abdul Awal, J.

Judgment on
06.05.2014
  Md. Saiful Islam
. . . Defendant-Petitioner
-Versus-
A. K. Fozlul Haque and others
... Opposite Parties
 

Code of Civil Procedure (V of 1908)
Order VII, Rule 11(d)
Muslim Marriages and Divorce Registration Rules, 1975.
Rule 10
The defendant-opposite party No.2 committed no wrong in curtailing the Nikah Registrarship of the plaintiff-opposite party No.1 inasmuch as the plaintiff-opposite party No.1 was continuing as Nikah Registrar  for 2 (two)  unions, that is,  Maria Union and Binnati Union under Kishoregonj District which is in conformity with the Rule 10 of Muslim Marriages and Divorce Registration Rule as amended on 2.10.2002. The learned Senior Assistant Judge on the facts of the case and on consideration of the legal position rightly rejected the plaint by his judgment and decree dated 29.9.2005 on assigning sound reason. Impugned judgment and decree dated 19.10.2011 passed in Appeal No. 125 of 2005 is set-aside and that the judgment and decree of the trial Court dated 29.9.2005 passed in Other Class Suit No. 233 of 2004 is restored. . . . (17, 20 and 21)
 
Mr. A. J. Mohammad Ali with
Ms. Rubaiyat Hossain, Advocates
. . . For the Petitioner

Mr. Mohammad Nurul Haque, Advocate
.... For the Opposite Party No. 1.

Mr. Md. Abdul Hai, D. A. G.
.... For the Opposite Party No. 4.

Civil Revision No. 128 of 2013
 
JUDGMENT
Sheikh Abdul Awal, J.
 

This Rule was issued calling upon the opposite party No.1 to show cause as to why the judgment and decree dated 19.10.2011 passed by the learned Additional District Judge, 3rd Court, Kishoregonj in Other Appeal No. 125 of 2005 reversing those dated 29.9.2005 passed by the learned Senior Assistant Judge, Sadar, Kishoregonj in Other Class Suit No. 233 of 2004 allowing the application under Order 7, Rule 11(d) of the Code of Civil Procedure for rejection of the plaint should not be set-aside.

Short facts necessary for the disposal of the case are that the opposite party, as plaintiff instituted a suit being Other Class Suit No.233 of 2004 in the Court of Senior Assistant Judge, Sadar, Kishoregonj for declaration that the order dated 12.10.2004 issued under Memo No.7/2N-92/85/1135 by the defendant opposite party No.1 appointing the defendant No.2 as Nikah Reristrar of Maria Union is illegal, void and without jurisdiction.

Defendant-petitioner No. 2 entered appearance in the suit and filed an application under Order 7, Rule 11(d) of the Code of Civil Procedure for rejection of the plaint stating, inter-alia, that the plaintiff is not entitled to continue as Nikah Registrar for more than one union according to the provision of Rule 10 of Rules, 1975 as amended on 2.10. 2002.

Plaintiff-opposite party  resisted the said application by filing written objection stating, inter-alia, that  the contents of the plaint do disclose cause of action for the suit  and the plea of implied bar raised in the application for rejection the plaint is 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 and as such the application for rejection of the plaint   is liable to be rejected.

The learned Senior Assistant Judge, Sadar, Kishoregonj upon hearing parties and considering the relevant law along with the contents of the plaint allowed the application for rejection of the plaint by his judgment and decree dated 29.9.2005.

The plaintiff-petitioner,  thereafter, preferred Other Appeal No.125 of 2005 before the learned District Judge, Kishoregonj against the said judgment and decree dated 29.9.2005, which was eventually transferred to the Court of Additional District Judge, 3rd Court, Kishoregonj, who by the impugned judgment and decree dated 19.10.2011 set-aside the judgment and decree dated 29.9.2005 passed by the learned Senior Assistant Judge, Sadar, Kishoregonj in Other Class Suit No.233 of 2005 on the ground that the suit is not barred by any law.

Being aggrieved thereby the present defendant-petitioner has come before this Court and obtained the present Rule.

Mr. A. J. Mohammad Ali, the learned Advocate appearing for the petitioner in the course of his argument upon placing the plaint of the suit submits that it is apparent from the plaint the plaintiff filed the suit  challenging the Memo No. 7/2N-92/85/1135 dated 12.10.2004 issued by the Senior Assistant Secretary, Ministry of Law, Justice and Parliamentary Affairs by which the concerned authority of the Government appointed the defendant petitioner as Nikah Registrar of No.8, Maria Union in curtailing   the power of plaintiff opposite party as he continued to remain as Nikah Registrar for two Unions which is inconformity with the Rule 10 of Rules, 1975 as amended on 2nd October, 2002. The learned Counsel further submits that the learned Additional District Judge erred in law in setting-aside the well founded judgment of the trial Court without properly considering the facts of the case and the case made out by the petitioner and the same has occasioned failure of justice.

Mr. Mohammad  Nurul Haque, the learned Advocate appearing for the plaintiff-opposite party, on the other hand, supports the impugned judgment and decree which was according to him just, correct and proper. He submits that the Court of appeal below was perfectly justified in setting-aside the judgment and decree of the trial Court on the clear finding that neither the defendant nor the trial Court mentioned under what law the suit is barred. Finally, the learned Advocate submits that the proposition of law is by now well settled that  in deciding an application under section 7, Rule 11(d) of the Code of Civil Procedure the Court cannot travel  beyond the averments of the plaint and the plea of implied bar raised in the application for rejection the plaint is mixed question of law and fact, which can be decided only at the trial on taking evidence.

Mr. Md. Abdul Hai, the learned Deputy Attorney General appearing for the opposite party No.4, Secretary, Ministry of Law, Justice and Parliamentary Affairs submits that under section 9 of the Code of Civil Procedure  all suits of civil nature lie in Civil Court unless  the same is impliedly barred by specific provision of law, the issues involved in the present suit are clearly and plainly barred by the provisions  of Rule 10 of Rules 1975 as amended on 2.10. 2002 . Finally, the learned Deputy Attorney General submits in any event this is not a case in which the ordinary Civil Court has jurisdiction to grant the relief asked for by the plaintiff opposite party No. 1.

I have heard the learned Advocates for both the sides as well as the learned Deputy Attorney General and perused the revision application, judgments of two Courts below together with the connected laws. The only material question for consideration in this case is, whether the Court of appeal below has committed any illegality  in holding that the suit is not barred by any law.

It appears that in the present case the plaintiff-opposite party No.1 continued to remain as Nikah Registrar  for 2(two) unions, that is,  Maria Union and Binnati Union under Kishoregonj District.

In exercise of the power under section 14 of the Muslim Marriage and Divorce Registration Act, 1974, Rules, 1975 was promulgated. Rule 10 speaks an area in which a Nikah Registrar may be licensed to exercise his jurisdiction. Rule 10 was amended on 19.1.93 and thereafter it was further amended on 30.12.97 by specifying the area within which a Nikah Registrar may be appointed and thereafter further it was amended on 2nd October, 2002  as published in Official Gazette on 3.10.2002. The jurisdiction of a Nikah Registrar as per present amended Rule 10 of Rules 1975 is as under :

“10. Jurisdiction:- Notwithstanding anything contained in these Rules or in any license granted under these Rules, an area for which a Nikah Registrar may be licensed shall be-
  1. In the case of a City Corporation, not more than one ward;
  2. In the case of a municipality of-
  1. Category ‘A’ not more than one ward;
  1. Category ‘B’ not more than two wards; and
  2.  Category ‘C’ not more than three wards; and
©  in other cases, not more than one union”.

From a reading  of the above mentioned notification published in the Official Gazette  3rd October, 2002, it appears that license of a Nikah Registrar is to be granted only for 1 (one) union, not  more than one union.
I like to cut shot this matter inasmuch as I have already found the opposite party No.1 continued to remain as Nikah Registrar  for 2(two)  unions, that is,  Maria Union and Binnati Union under Kishoregonj District.
For an answer to the question raised in this Rule it is necessary to examine the impugned Memo No. 7/2N-92/85/1135 dated 12.10.2004 issued under the signature of the defendant opposite party No.1. The impugned Memo No. 7/2N-92/85/1135 dated 12.10.2004  reads as follows:

বিষয়ঃ- কিশোরগঞ্জ জেলার সদর উপজেলার ৮ নং মারিয়া ইউনিয়নে নিকাহ রেজিষ্ট্রার নিয়োগ প্রসংগে

উপরে উল্লেখিত বিষয়ের নিম্ন সাক্ষরকারী আদিষ্ট হইয়া জানাইতেছি যে, সরকার ১৯৭৪ সনের মুসলিম বিবাহ ও তালাক (রেজিষ্ট্রীকরণ) আইনের ৪ ধারা এবং ১৯৭৫ সনের মুসলিম বিবাহ ও তালাক (রেজিষ্ট্রীকরণ বিধিমালার ৫(১) বিধির প্রদত্ত ক্ষমতা বলে জনাব এ, কে, ফজলুল হক, নিকাহ রেজিষ্ট্রর এর এলাকা হইতে ৮ নং মারিয়া ইউনিয়নটি কর্তন পুর্বক নতুন অধিক্ষেত্র সৃষ্টি করতঃ জনস্বার্থে জনাব মোঃ সাইফুল ইসলাম, পিতা - মৃত নুরুল হক, সাং মোল্লাপাড়া, পোঃ + উপজেলা + জেলা-কিশোরগঞ্জ-কে ৮ নং মারিয়া ইউনিয়নের অস্থায়ী নিকাহ রেজিষ্ট্রার নিয়োগের অনুমোদন প্রদান করিলেন।

২। এই বিষয়ে প্রয়োজনীয় ব্যবস্থা গ্রহন ও বিধি মোতাবেক দরখাস্ত আহবান পূর্বক স্থায়ী নিয়োগের প্যানেল প্রেরনের জন্য অনুরোধ করা হইল।

৩। অত্র আদেশ কোন মামলায় কোনরুপ নিষেধাজ্ঞা বা স্থগিতাদেশ থাকিলে কার্যকর হইবে না।

স্বা/
(এ,এইচ, এম, সামসুল আরেফিন)
সিনিয়র সহকারী সচিব
তাং- ১২/১০/২০০৪

From the above together with the amended provision of section 10 of the Muslim Marriage and Divorce Registration Act, I am led to hold that the defendant-opposite party No.2 committed no wrong in  curtailing the Nikah Registrar ship of the plaintiff-opposite party No.1 inasmuch as the plaintiff-opposite party No.1 was continuing as Nikah Registrar  for 2 (two)  unions, that is,  Maria Union and Binnati Union under Kishoregonj District which is in conformity with the Rule 10 of Muslim Marriage and Divorce Registration Act as amended on 2.10.2002

I do not think therefore that the learned Additional District Judge made a correct approach to the simple problem.

In view of this, I am led to hold the instant suit filed by the plaintiff challenging the order dated 12.10.2004 issued under Memo No.7/2N-92/85/1135 by the defendant No.1 by which the concerned authority of the Government appointed the defendant petitioner as Nikah Registrar of No.8 Maria Union in curtailing   the power of plaintiff opposite party is clearly barred by  the provisions of Rule 10 of Rules, 1975 as amended on 2.10. 2002.

The learned Senior Assistant Judge on the facts of the case and on consideration of the legal position rightly rejected the plaint by his judgment and decree dated  29.9.2005  on assigning sound  reason.

For the foregoing reasons stated above, both on law and fact,  I hold that the judgment and decree of the appellate Court below is liable to be set aside and that of the trial Court be restored.  Consequently, the Rule is made absolute without any order as to costs. Impugned judgment and decree dated 19.10.2011 passed in Appeal No.125 of 2005 is set-aside and that the judgment and decree of the trial Court dated 29.9.2005 passed in Other Class Suit No.233 of 2004 is restored.

Let a copy of this judgment along with the lower Courts record be sent down at once.

Ed.