Mir Shahjahan and another Vs. Jamil Ahmed 2018 (1) LNJ 01

Case No: Civil Revision No. 2216 of 2017

Judge: Syed Md. Ziaul Karim, J.

Court: High Court Division,

Advocate: Humayun Kabir Chowdhury, Mr. Gazi Md. Mohsin,

Citation: 2018 (1) LNJ 01

Case Year: 2017

Appellant: Mir Shahjahan and another

Respondent: Jamil Ahmed

Subject: Specific Performance

Delivery Date: 2018-02-15

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Syed Md. Ziaul Karim, J.

And

Sheikh Md. Zakir Hossain, J

Judgment on

19.10.2017

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Mir Shahjahan and another

. . .Applicant-Petitioners.          

-Versus-

Jamil Ahmed

. . .Plaintiff-Opposite party.

Code of Civil Procedure (V of 1908)

Order I, Rule 10

Specific Relief Act (I of 1877)

Section 12

It is true that in a suit for specific performance of contract for sale a stranger third party is not a necessary party, but the case in our hand is not such a case. So we find that the presence of the applicants are required for proper adjudication of the suit. So in our view the Court below by not impleading the applicants as party committed an error of law.                                     . . . (15)

Nurun Nahar Begum and others Vs. Abdul Khaleque Choukider and others, 43, DLR (AD) 107; Nurul Islam and others Vs. Jamila Khatun and others, 53 DLR (AD) 45 and Messer’s City Ice and Cold Storage Ltd. Vs. Nitai Chand Saha and others, 3 BCR (AD) 211 ref.

Mir Humayun Kabir and another,

. . .Defendant proforma opposite parties.

Mr. Gazi Md. Mohsin, Advocate, with

Mr. Motalib Bhuiyan, Advocate,

. . .For the applicant petitioner.

Mr. Shakhawat Hossain, Advocate,

. . .For the plaintiff-opposite party no.1.

No one appears,

. . . For the defendant opposite party nos. 2 and 3

JUDGMENT

Syed Md. Ziaul Karim, J: This Rule was issued on an application under section 115(1) of the Code of Civil Procedure (briefly as the Code) at the instance of applicant-petitioner calls in question the legality and propriety of the order dated 20-03-2017 passed by learned Joint District Judge, First Court, Narayangonj rejecting an application for addition of party filed under Order I Rule 10 of the Code in Title Suit no. 347 of 2008.

2.            Material facts leading to this Rule are that on 25-11-2008 the opposite party no.1 as plaintiff instituted Title Suit no. 347 of 2008 in the First Court of Joint District Judge, Narayangonj, impleading the opposite party nos. 2 and 3 as defendants for specific performance of contract for sale of 10.25 decimals of land out of 41 decimals described in schedule of the plaint. The relieves claimed in the suit reads as hereunder:

L)  Bl¢Sl  h¢ZÑa k¡ha£u AhØq¡  L¡lZ¡d£­e ¢ejÀ ag¢Rm h¢ZÑa i¨¢j pÇf­LÑ h¡c£l Ae¤L¥­­m 1ew ¢hh¡c£l ¢hl²­­Ü Q¥¢J²j§­­m Lhm¡ pÇf¡c­el ¢X¢H² ¢c­­a ; Hhw B­­f¡oj§­­m h¡c£l hl¡h­­l Q¥¢J²L«a p¡g Lhm¡ pÇf¡ce J ®l¢S¢øÊ L¢lu¡ ®cJu¡l SeÉ pwL£ZÑ  pju ¢c­­a ;

M)  ¢h‘ Bc¡m­­al l¡u J ¢XH²£ ®j¡a¡­­hL 1ew ¢hh¡c£ h¡c£l hl¡h­l ¢X¢H²L«a p¡g Lhm¡ pÇf¡ce J ®l¢S¢ÖYÊ~ L¢lu¡ e¡ ¢c­­m Bc¡ma ®k¡­­N h¡c£ qC­­a c¢m­­ml j¤p¡¢hd¡, øÉ¡Çf J ¢gp NËq­­Z 1ew ¢hh¡c£l f­­r ¢h‘ Bc¡ma üuw h¡c£l hl¡h­l ¢XH²£L«a p¡g Lh¡m¡ pÇf¡ce J ®l¢S¢øÊ L¢lu¡ ®cJu¡l B­­cn ¢c­­a ;

N)  Bc¡ma ®k¡­­N p¡g Lh¡m¡ pÇf¡ce J ®l¢SøÊ£ A­­¿¹x Lhm¡l ag¢Rm h¢ZÑa i¨¢j­­a 1ew ¢hh¡c£l h¡d¡, fË¢ahåLa¡ l¢qa H²­­j h¡c£l hl¡h­­l M¡p cMm h¤T¡Cu¡ ®cJu¡l B­­cn ¢c­a ;

O)  ®j¡LŸj¡l MlQ 1ew ¢hh¡c£l ¢hl²­­Ü ¢XH²£ ¢c­­a;

P)  Abh¡, Bc¡m­­al eÉ¡u ¢hQ¡­­l h¡c£ AeÉ ®k i¡­­h Bl ®k, ®k fË¢aL¡l i¡Se qu aâ²f B­­cn J ¢XH²£ ¢c­­a B‘¡ quz

3.            In suit, on 01-08-2016 the petitioners as applicants filed an application under Order I Rule 10 of the Code for impleading them as defendants stating that defendant no. 1 herein opposite party no.2 is their full brother but without their consent he entered into an agreement with plaintiff however the applicants have right, title and possession in their specific portion of the land described in the schedule of the plaint.

4.            After hearing the learned Judge of the Court below rejected the same by the impugned order.

5.            Feeling aggrieved the applicants as petitioners preferred the instant application and obtained the present Rule.

6.            The learned Advocate appearing for the petitioners seeks to impeach the impugned order on three fold arguments:

Firstly: The applicants are the co-sharer in the schedule land. The presence of the applicants are necessary for disposal of the instant suit and to resolve all controversies between the parties.

Secondly: The applicants have right, title and possession in the suit land;

Third and lastly: The learned judge of the Court below without appreciating such facts rejected the application which is an error of law resulting error in the decision occasioning failure of justice.

7.            The learned Advocate appearing for the opposite party no. 1 opposes the Rule and submits that the application for addition of party filed by the applicants are not at all maintainable inasmuchas in a suit for specific performance of contract for sale third party has no locus-standi to implead as a party. He adds that the presence of the applicants are not at all necessary for disposal of the suit. He lastly submits that after appreciating the settled principles of law the learned Judge of the Court below rightly rejected their application for addition of party which calls for no interference by this Court.

8.            In support of his contentions the learned Counsel refers the following decision:

9.            In the case of Golam Kader being dead his heirs: Nurun Nahar Begum and others vs. Abdul Khaleque Choukider and others 43 DLR(AD)-107 held:

Code of Civil Procedure

Or. I r. 10

Addition of party in a suit for specific performance of contract-the appellants’ averments in the application for addition of party setting up an independent title to the land disentitle them to be included as parties within the framework for the present suit wherein the real question to be determined is whether the contract for sale between the parties therein was genuine and whether on the basis thereof the plaintiffs are entitled to get a decree. The averments for addition of party will convert the present suit into one for determination of title which is not permissible in law.”

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

11.        On going to the materials on record it transpires that the plaintiff instituted the suit for specific performance of contract for sale of 10.25  decimals of land described in the schedule of the plaint. It is the specific case of the applicants that the plaintiff entered into an agreement with their full brother (defendant no.1) into the land, wherein they have right, title and possession. So their presence are necessary for the purpose of the effective disposal of the suit on merit. The material excerpt of such application reads as hereunder:

Aœ ®j¡LŸj¡u 1ew ¢hh¡c£fr clM¡ØaL¡l£ à­ul ¢hNa 16/09/96 Cw a¡¢l­M 5577 ew ¢hm HJu¡S ®qh¡ j§­m j¡¢mL¡e¡d£e L¥a¥hf¤l ®j±S¡u e¡¢mn¡ ¢p, Hp, J Hp, H, 779 ew Bl, Hp,  1092 ew c¡­Nl 23 na¡wn J ¢p ,Hp, J Hp, H, 783 ew Bl, Hp, 1095 ew c¡­Nl 18 na¡wn HL¥­e c¤C c¡­N 41 na¡w­nl L¡­a HSj¡m£­a ( 8.20 + 8.20 )= 16.40 na¡wn i¨¢jpq B­l¡ LaL ®he¡¢mn¡ i¨¢j­a clM¡ØaL¡l£ j¡¢mL qCu¡ j¡W fkÑ¡­u ®i¡N cM­m ¢hcÉj¡e b¡L¡ AhØq¡u, clM¡ØaL¡l£à­ul j¡¢mL¡e¡d£e HSj¡m£ i¨¢jl Awn Aœ ®j¡LŸj¡l h¡c£ clM¡ØaL¡l£N­Zl AS¡­¿¹ J Aü¡r¡­a h¡ue¡e¡j¡ c¢mm pªSe L¢lu¡ clM¡ØaL¡l£à­ul i¨¢j NË¡p J BaÈp¡v Ll¡l SeÉ Aœ Q¥¢J² fËh­ml ®j¡LŸj¡  c¡­ul L¢lu¡­R z  

12.        So facts of the averment of the applicants clearly indicates that to protect their right, title and interest and to avoid multiplicity of the proceedings and for complete adjudication of the suit and to dissolve the dispute of the suit they are entitled to be impleaded as party. So, we feel that the learned Judge of the Court below without impleading them as party committed an error of law.

13.        In the case of Nurul Islam and others Vs. Jamila Khatun and others 53 DLR(AD) 45 held:

   ″A trespasser in the suit property is liable to be impleaded in the suit and evicted from the suit property to give effective relief to the plaintiff.

14.        In the case of Messer’s City Ice and Cold Storage Ltd. Vs. Nitai Chand Saha and others 3 BCR(AD) 211 held:

″Addition of subsequent transferees is necessary for proper adjudication of the question whether the plaintiff’s case of alleged contract between the plaintiff and defendant no.1 was genuine. If the contract with the plaintiff is found genuine then the subsequent transfer will be subject to the decision in the suit. ″

15.        Therefore, we hold that presence of the applicants are necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. It is true that in a suit for specific performance of contract for sale a stranger third party is not a necessary party, but the case in our hand is not such a case. So we find that the presence of the applicants are required for proper adjudication of the suit. So in our view the Court below by not impleading the applicants as party committed an error of law.

16.        Moreover the impugned order in its entirety is not well founded in the facts and circumstances of the case. So, the grounds urged and contentions advanced by the learned Counsel for the petitioners are the correct exposition of law and facts. So the same prevails and appears to have a good deal of force. On the contrary we have gone through the decision referred by the learned Counsel for the opposite party no.1. We are in respectful agreement with the principles enunciated therein but the facts leading to that case is quite distinguishable to that of the instant case. So we are unable to accept his submissions.

17.        In the light of discussions made above and the preponderant judicial views emerging out of the authorities referred to above, we are of the view that the impugned order suffers from legal infirmity which calls for interference by this Court. Thus the Rule having merit succeeds.

18.                   In view of foregoing narrative, the Rule is made absolute without any order asto cost. The impugned order dated 20-03-2017 passed by learned Joint District Judge, First Court, Narayangonj, in Title Suit no. 347 of 2008 so far as it relates to rejecting the addition of party is set aside. The application for addition of party dated 01-08-2016 is allowed. The learned Judge of the Court below is directed to implead the applicants as defendants in the suit.

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

Ed.

 



Civil Revision No. 2216 of 2017