Md. Yousuf Ali Khan Vs. Bibi Quamrunnesa and others, (Md. Nuruzzaman, J.)

Case No: Civil Revision No. 3153 of 2015

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

Court: High Court Division,

Advocate: Mr. Md. Abdul Hai Sarkar, Advocate ,

Citation: 2018(2) LNJ

Case Year: 2017

Appellant: Md. Yousuf Ali Khan

Respondent: Bibi Quamrunnesa and others

Subject: Code of Civil Procedure

Delivery Date: 2019-11-30

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Nuruzzaman, J

And

S. H. Md. Nurul Huda Jaigirdar, J

 

Judgment on

25.07.2017 and 26.07.2017

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Md. Yousuf Ali Khan

. . . Plaintiff- Petitioner

-Versus-

Bibi Quamrunnesa and others

. . . Defendant-Opposite Parties

Code of Civil Procedure (V of 1908)

Sections 96(3) and 115(1)(2)

Order 23, Rule 3

Order 43 Rule 1 (m)

The impugned Judgment and decree passed by the Joint District Judge, Dhaka in Title Suit No. 03 of 2012 setting aside the Judgment and decree passed in title suit No. 187 of 2011 upon a compromise application which is not revisable. On perusal of the Rule -1 (m) of Order 43 of the Code of Civil Procedure it is clearly manifested that according to this provision the impugned Judgment and decree dated 18.09.2012 passed by the Joint District Judge, upon a compromise application with consent of the parties it does not come within the ambit of the provision of Order 43 of the Code of Civil Procedure because it is not order, rather, it is a decree. Moreso, it would not be appealable because of the provision laid down in section 96(3) of the Code of Civil Procedure. Section 96(3) says that no appeal shall lie from a decree passed by the Court with consent of the parties. The Rule enunciated in this sub-section seems to have been based on the principle that a person, who gives his consent to a decree being passed against him, is later on estopped from challenging the same. Disputes between the parties are either settled on the merits or on their consent. If the later course is adopted then the parties are not allowed to challenge the decrees passed with their consent. However, in order to attract the provision of this section, it is obviously, necessary that the decree ex-facie must show that it was passed with the consent of both the parties to the suit. The instant revisional application filed by the plaintiff for setting aside the consent decree which arising out of a compromise on an application under order 23 Rule 3 of the Code of Civil Procedure neither appealable nor revisable. However, such allegation must be tested in proper forum by filing a proper suit.           . . . (32, 33 and 43)

Amudi Mamud Vs. Elahi Baksha Sarker and others, 6 BLD 1986 67 and AIR 1970 Punjab and Haryana, 176 ref.

Mr. Md. Abdul Hai Sarkar, Advocate

. . . For the petitioner

Mr. Mosharraf Hossain Sarkder, D.A.G and

Mrs. Shahida Khatoon, A.A.G and

Mr. Md. Ashraf Uddin Khan. A.A.G.  

. . . For the State

JUDGMENT

Md. Nuruzzaman, J. The instant Rule has been obtained at the instant of the plaintiff-petitioner challenging the legality and propriety of the Judgment and decree dated 18.09.2012 passed by the learned Joint District Judge, Arbitration Court, Dhaka in Title Suit No. 03 of 2012 against the compromise decree made under order 23 Rule 3 read with section 89A of the Code of Civil Procedure. 

2.             The material facts, relevant for disposal of the instant Rule, as have been derived from the revisional application, succinctly are, that the petitioner as plaintiff instituted the Title Suit No. 266 of 2005 in the Court of Joint District Judge, 1st Court, Dhaka against the defendant Bibi Quamrunnesa herein opposite party No. 1 and others for Specific Performance of Contract. The said suit was transferred and renumbered as Title Suit No. 187 of 2011. Eventually, the said suit again was transferred and re-numbered as Title Suit No. 03 of 2012 in the Court of Joint District Judge, Arbitration Court, Dhaka, after setting aside the Judgment and decree dated 28.09.2011 and 04.10.2011 respectively.

3.             The plaint case in short, is that the suit property originally belonged to the defendant-opposite party No. 1 Bibi Quamrunnessa who had got permanent lease of the Suit Property vide registered Deed No. 6675 dated 27.04.1966 from the erstwhile Dhaka Improvement Trust (now RAJUK). Thereafter she build one storied building on the land. She executed a Bainapatra on 16.01.1995 with the plaintiff fixing total consideration money of Tk. 35,00,000/- out of which she received Tk. 20,00,000/- with stipulation that she will pay the whole dues loan money of the House Building Finance Corporation. She would also take sales permission from the RAJUK. The defendant had also received further consideration money time to time from the plaintiff-petitioner. The defendant thereafter started dilly-dally tactics to register the deed. However, she at a point of time demanded more extra money out of consideration of the agreement.  

4.             Hence, the plaintiff was compelled to file the suit for Specific Performance of Contract.

5.             The defendant appeared in the suit and contested by filing written statement demanding extra money to the plaintiff beyond the contract.

6.             The Court below after framing the issues posted the suit for peremptory hearing. At the trial the plaintiff to prove his plaint case adduced 4 witnesses and produced some documents to prove the case in his favour which were marked as exhibits.

7.             The defendant No. 1 also adduced 1 witness in support of his defence case and produced some documents which were also marked as exhibits.

8.             The learned Joint District Judge, 5th Court, Dhaka by his Judgment and decree dated 28.09.2011 and 04.10.2011 respectively decreed the suit.

9.             Thereafter, the decree holder filed the Execution Case No. 10 of 2011 and obtained the sale deed.

10.         However, the plaintiff decree holder proceeded with the decree for taking the possession of the suit property through the Court. The decree holder went to the suit property with balief of the Court for taking possession of the suit property. However, the belief of the Court on query found that some miscreant are in possession of the suit property therefore, he could not handover the possession of the suit property to the decree holder. The balief of the Court submitted a report on 05.04.2012 to the Court to that effect.

11.         The present opposite party No. 6 as 3rd party on 03.05.2012 filed a Miscellaneous Case being No. 16 of 2012 under Order 9 Rule 13 read with section 151 of the Code of Civil Procedure in the Court of Joint District Judge, 5th Court, Dhaka for setting aside the Judgment and Decree dated 28.09.2011 passed in Title Suit No. 187 of 2011 however, the said Miscellaneous Case again re-numbered as Miscellaneous Case No. 11 of 2012.

12.         The Opposite Party No. 6 on behalf of the plaintiff-petitioner fraudulently filed a written objection in the said Miscellaneous Case. Eventually, on 18.09.2012 the learned Joint District Judge, 5th Court, Dhaka set aside the Judgement and decree dated 28.09.2011 passed by him in Title Suit No. 187 of 2011. Thereby restored the Title Suit No. 187 of 2011 in its original file and number.

13.         Thereafter, the 3rd party filed an application in Title Suit No. 187 of 2012 for addition of party which was allowed by the Court adding the petitioner 3rd party as defendant No. 6 in the suit. After restoration the suit the same was renumbered as Title Suit No. 03 of 2012 in the Court of Joint District Judge, 5th Court, Dhaka.

14.         At the trial the defendant No. 6 compromised the matter with plaintiff. Hence, filed an application under Order 23 Rule 3 read with section 89A of the Code Civil Procedure with a prayer for compromise the suit in terms of compromise petition and passed the decree accordingly.

15.         The learned Joint District Judge, 5th Court, Dhaka on 18.09.2012 took upon the case for hearing and directed the office to transfer the record of decree Jari case No. 10 of 2011 to his Court for hearing and order. Accordingly title suit No. 3 of 2012 along with execution case No. 10 of 2011 were placed before the Court for hearing and Order.

16.         Thereafter, the plaintiff Yousuf Ali was examined by the Court as PW-1 in support of compromise petition and Mr. Abdul Momen was examined on behalf of the defendant No. 6. The learned Judge after considering the testimony of P.W. and D.W. and considering the materials on record by its Judgment and decree dated 18.09.2012 dismissed the Title Suit No. 03 of 2012 arising out of Title Suit No. 187 of 2011 on the basis of compromise petition and thereby accepted the compromise application and declared that the sale deed being No. 11216 and sale deed No. 1099 dated 01.12.2011 executed and registered on 29.11.2011 before the Sub-Registry Office, Gulshan, Dhaka through execution case No. 10 of 2011 arising out of 187 of 2011 is void and cancelled and directed the said Sub-Registrar to record the same in the Balaam Books within 7(seven) days and inform the Court accordingly. 

17.         The present petitioner being aggrieved by the Judgment and decree dated 18.09.2012 passed by the learned Joint District Judge, 5th Court and Arbitration Court, Dhaka passed in Title Suit No. 03 of 2012 and decree drawn upon in Title Suit No. 03 of 2012 on the basis of the solenama under order 23 Rule 3 read with section 89A of the Code of Civil Procedure preferred the instant revisional application before this Court and obtained the instant Rule.

18.         Mr. Abdul Hai Sarker, the learned Advocate appearing on behalf of the petitioner took us through the revisional application and pointed some allegation against the opposite party No. 6 which is stated in paragraph 11 of the application. Thereafter, he has submitted that the Court below committed serious error of law appreciating the compromise petition which was signed by the petitioner due to fear of life at the regime of Army back Caretaker Government as the defendant No. 6 is none but high ups Army Officer. Therefore, passing the impugned Judgment and decree dated 28.09.2011 is nothing but serious injustice to the petitioner.

19.         He has further submitted that the opposite party No. 6 was not a party in the suit for Specific Performance of Contract however, he filed an application under Order 9 Rule 13  of the Code of Civil Procedure having without any locus-standi but the Court below beyond the procedure of law and behind the plaintiff petitioner allowed the application at the instance of 3rd party and set aside the judgment and decree dated 28.09.2011 and 04.10.2011 respectively, hence, the Court below has committed serious error of law resulting in an error in the decision occasioning failure of Justice in setting aside the same passed by the Joint District Judge, 5th Court, Dhaka in Title Suit No. 187 of 2011. The defendant No. 6 most illegally having no locus-standi not only setting aside the Judgment and decree dated 28.09.2011 passed in favour of the plaintiff petitioner rather, he has proceeded further to set aside the consequence of the original decree which has been passed in favour of the plaintiff in Title Suit No. 187 of 2011.

20.         He has further added that the defendant No. 6 has compelled the plaintiff petitioner on fear of life to put his signature in the compromise petitioner as high ups of the Army. He has also pointed that decree drown up on 18.09.2012 in Title Suit No. 03 of 2012 being 3rd party and obtained Judgment and decree to the effects that the title suit No. 187 of 2011 is dismissed in terms of compromise and thereby declared the registered deed No. 1099 dated 01.12.2011 registered in the office of Sub-Registrar, Gulshan, Dhaka which can not be passed in accordance with law as the instance of the 3rd party defendant No. 6 who is neither vendor nor purchaser of the suit property, not only that he has no locus-standi to be a defendant as third party to set aside the Judgment and decree and obtained the compromise because during the  compromise decree he got no title over the suit property and, as such, the Judgment and decree dated 18.09.2012 is liable to be set aside.

21.         On the other hand, Mr. Mosharaf Hossain Sarder, the learned Deputy Attorney General appearing in the instant revisional application on behalf of the opposite party Nos. 2-6 has submitted that the instant revisional application is not maintainable as the Judgment and decree dated 18.09.2012 on the basis of compromise application neither appealable nor revisable in accordance with law.

22.         He has further pointed that sub-section 1 of section 115 of the Code of Civil Procedure provides the provision of law only to file revision application against the Judgement and order passed by the learned Joint District Judge, in a suit which valuation is more than Taka 5,00,000/- (five lac) or any Judgment and order passed by the Assistant Judge or Senior Assistant Judge which has been tested in the Court of District Judge under sub section 2 of the section 115 of the Code of Civil Procedure.

23.         He has categorically pointed that the Judgment and decree impugned in the instant revisional application passed on the basis of the compromise decree which cannot be tested in revisional jurisdiction under sub-section 1 of section 115 of the Code of Civil Procedure.

24.         He has further added that since the plaintiff-petitioner in this revisional application made some allegations against the 3rd party defendant No. 6 which was neither narrated in the plant nor in the trial Court by filing any allegation. Therefore, such allegation cannot be resolved and decided in favour of either of the parties before this Court under the revisional jurisdiction which required evidence in favour of the allegation to determine the dispute and allegation raised by the plaintiff-petitioner in the revisional application.

25.         Therefore, the instant Rule is liable to be discharged as being not maintainable.

26.         We have gone through the Judgment and decree passed by the learned Joint District Judge, 5th Court, Dhaka in Title Suit No. 03 of 2012 under Order 23 Rule 3 read with section 89A of the Code of Civil Procedure.

27.         So, we are of the view that the question of law raised by the learned Deputy Attorney General on behalf of the opposite parties regarding the maintainability of the revisional application is the moot question which must be answer as per law. We are, therefore, of the view that to address the said question of law we must look into the provision of section 115 and order 43 of the Code of Civil Procedure from which an order can be challenged either in a Revisional or Appellate Jurisdiction. So, for convenience of the discussions of the subject and ready reference it would be noteworthy to reproduce the provision of section 115 and Order 43 of the Code of Civil Procedure which reproduced herein below:

Section 115 (1) The High Court Division may, on the application of any party aggrieved, call for the record of any suit or proceeding in which a decree or an order has been passed by a Court of District Judge or Additional District Judge, or a decree has been passed by a Court of Joint District Judge, Senior Assistant Judge, or Assistant Judge, from which  no appeal lies; and if such Court appears to have committed any error of law resulting in an error in such decree or order occasioning failure of justice, the High Court Division may, revise such decree or order and, make such order in the suit or proceeding, as it thinks fit.

(2) The Court of District Judge may, on the application of any party aggrieved, call for the record of any suit or proceeding, in which an order has been passed by a Court of Joint District Judge, Senior Assistant Judge or Assistant Judge from which no appeal lies, and if such Court appears to have committed any error of law resulting in an error in such order occasioning failure of justice, the Court of District Judge may, revise such order and, made such order as it thinks fit.

Order XLIII:- Appeals from Order. Rule-1. (m) an order under rule 3 of Order XLIII recording or refusing to record an agreement, compromise or satisfaction;

28.         On perusal of the provision of Order 43 Rule 1 (m) it reveals that any order passed by the Court below under Order 23 Rule 3 of the Code of Civil Procedure is appealable.

29.         On perusal of the sub-section 1 and 2 of section 115 of the Code of Civil Procedure it appears that any order passed by the Assistant Judge, Senior Assistant Judge is revisable before the District Judge under sub-section 2 of section 115 of the Code of Civil Procedure. However, any Order passed Joint District Judge or Additional District Judge, or decree have been passed by the Court of Joint District Judge, Senior Assistant Judge, for which no appeal lies it would be revisable. 

30.         It must be mentioned here that in a case like the case in hand, when one of the parties to the litigation asserts before higher Court that his consent to the decree under revision or appeal was not out of free will and it was obtained under coercion and he was not willing party to the adjustment of the suit, either the Court of appeal or revisional jurisdiction obviously cannot decide the dispute by them on the material before it.

31.         In order to meet such a situation, the legislature had, therefore, provided no appeal or revision would lie from a decree passed by the Court with the consent of the parties. In our view such situation, however, does not mean that the aggrieved party is left without remedy. 

32.         Considering the provision of the section 115 of the Code of Civil Procedure as quoted here in above we find that the impugned Judgment and decree passed by the Joint District Judge, Dhaka in Title Suit No. 03 of 2012 setting aside the Judgment and decree passed in title suit No. 187 of 2011 upon a compromise application which is not revisable.

33.         On the other hand on perusal of the Rule -1 (m) of Order 43 of the Code of Civil Procedure it is clearly manifested that according to this provision the impugned Judgment and decree dated 18.09.2012 passed by the Joint District Judge, upon a compromise application with consent of the parties it does not come within the ambit of the provision of order 43 of the Code of Civil Procedure because it is not order, rather, it is a decree. More-so, it would not be appealable because of the provision laid down in section 96(3) of the Code of Civil Procedure. Section 96(3) says that no appeal shall lie from a decree passed by the Court with consent of the parties. The Rule enunciated in this sub-section seems to have been based on the principle that a person, who gives his consent to a decree being passed against him, is later on estopped from challenging the same. Disputes between the parties are either settled on the merits or on their consent. If the later course is adopted then the parties not allowed to challenge the decrees passed with their consent. However, in order to attract the provision of this section, it is obviously, necessary that the decree ex-facie must show that it was passed with the consent of both the parties to the suit.

34.         However, it is crystal clear that by dint of the instant Judgment dated 18.09.2017 set aside the earlier Judgment and decree consequently, another decree was drawn up.

35.         More-so, the petitioner herein made some allegations against the 3rd party defendant No. 6 in the paragraph No. 9, 10 and 11 of the revisional application. It has categorically mentioned in the revisional application that the defendant No. 6 who was added party in the suit No. 187 of 2011, he was neither plaintiff nor defendant in the suit. Besides, it has submitted that he has no personal interest and title nor his department has any right, title and interest over the suit property.

36.         Furthermore, we are of the opinion that on perusal of the allegation as made in the revisional application it is crystal clear that said allegations was not tested in Court of Original Jurisdiction therefore, it should not be decided without appreciating the evidence in Revisional Jurisdiction.

37.         In view of the facts, circumstances and material on record we are of the considered view that the contents regarding allegation in the revisional application required to be proved before the Court by adducing evidence and the Court after appreciating the testimonies and other documents if produced on behalf of the either parties would come to a conclusion whether this allegations are correct or not.

38.         However, after argument of the learned Deputy Attorney General, and conclusion of the hearing, Mr. Abdul Hai Sarker the learned Advocate filed an application for discharging Rule with permission to file a suit in proper Court.

39.         In such complication of the facts and law we are of the opinion that the petitioner cannot be non-suited before the Court of law.

40.         We find support of our view in a decision to the case of Amudi Mamud Vs. Elahi Baksha Sarker & others reported in 6 BLD 1986, 67 wherein it has held that:-

got compromise petition, if found lawful must be recorded and decree be passed according to its terms – Compromise induced by fraudulent conduct between parties voidable and not void – compromise vitiated by fraud can be set aside by a decree in a regular suit instituted for that purpose.

41.         We may also profitably referred to the decision reported in AIR Punjab & Haryana-1970, 176, wherein their lordships held that –

“Consent decree – Setting aside of, on ground that consent is obtained by coercion – Proper remedy is to file separate suit – Appeal, application for review or application under section 151 or section 152 is not sustainable.

42.         On perusal of the above authority and provision of section 115 and Order 43 of the Code of Civil Procedure we cannot but to consider facts and circumstances in view of the above discussions, authority as referred herein above.

43.         So, we are of the considered view that the instant revisional application filed by the plaintiff for setting aside the consent decree which arising out of a compromise on an application under order 23 Rule 3 of the Code of Civil Procedure neither appealable nor revisable. However, such allegation must be tested in proper forum by filing a proper suit.

44.         In that view of the matter we are of the view that the application filed by the learned Advocate for the petitioner may consider and pass favourable order with permission to take recourse in accordance with law, if so advise.

45.         Thus, the instant Rule is disposed of, however, without any order as to cost. However, the petitioner is permitted to take necessary steps in accordance with law.

46.         The Order of status-quo granted earlier at the time of issuance of the Rule is hereby recalled and vacated.  

47.         Office is directed to communicate the Order and send down the L.C Record to the Court below at once.

         Ed.  



Civil Revision No. 3153 of 2015