Mst. Chamiron Nessa Khatoon Vs. Abdul Maleque, 2 LNJ (2013) 599

Case No: Civil Revision No. 120 of 2005

Judge: Md. Shawkat Hossain,

Court: High Court Division,,

Advocate: Mr. Syed Mamoon Mahbub,,

Citation: 2 LNJ (2013) 599

Case Year: 2013

Appellant: Mst. Chamiron Nessa Khatoon

Respondent: Abdul Maleque

Subject: Revisional Jurisdiction,

Delivery Date: 2013-09-23

HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Md. Shawkat Hossain, J.
            
Judgment
23.09.2013
and 18.11.2013
  Mst. Chamiron Nessa Khatoon.
..... Petitioner
       -Versus-
Abdul Maleque
….Opposite Party
 
 
Code of Civil Procedure (V of 1908)
Section 115(2)
This section of the Code provides revisional jurisdiction of the District Judge against “an order’ passed by the Joint District Judge, Senior Assistant Judge or Assistant Judge from which no appeal lies. In the instant case the revisional application was filed before the District Judge under section 115(2) of the Code against the decree passed by the Senior Assistant Judge which is incompetent and corum-non-judice. . . .(13 to 15)
 
Code of Civil Procedure (V of 1908)
Section 115 (2)
As the trial Court passed the decree on contest hearing both the sides, learned District Judge cannot set aside the judgment and decree of the trial Court at the time of admission hearing of the revisional application without issuing Rule. . . . (8 and 16)
 
Code of Civil Procedure (V of 1908)
Order VII, Rule 11(d)
Specific Relief Act (I of 1877)
Section 9
Limitation Act (IX of 1908)
Article 3
A suit filed under Section 9 of the Specific Relief Act, 1877 is governed by Article 3 of the Limitation Act. The suit having not been filed within 6 (six) months from the date of dispossession, the plaint is liable to be rejected under Order VII, Rule 11(d) of the Code. . . .(18 and 19)

Mrs. Reshma Sultana, for
Mr. Subrata Chowdhury, Advocate
……For the petitioner.
Mr. Syed Mamoon Mahbub, Advocate
..... For the opposite party.

Civil Revision No. 120 of 2005
 
JUDGMENT
Md. Shawkat Hossain, J.
 
On an application under Section 115(4) of the Code of Civil Procedure this Rule was obtained by the plaintiff-petitioner against the judgment and order dated 27.11.2004 passed by  District Judge, Gaibanda in Civil Revision Case No.35 of 2004 allowing the Civil Revision sending back the Other Class Suit No.93 of 2002 on remand to the trial Court by setting aside the judgment and decree dated 19.10.2004 (decree signed on 25.10.2004) passed by Senior Assistant Judge (in charge), Saghata, Gaibandha in Other Class Suit No.93 of 2002.
 
The relevant facts for disposal of the Rule are that plaintiff obtained title and possession to the kha schedule land comprising 2.04 acre of land under mouja Kalapani that appertains to C.S. Khatian No. 266, S.A. Khatian No.319 by purchase from its owner Ganga Ram Dash and Khoka Ram Dash by registered dead dated 06.04.1955 and having been in possession of the same he was dispossessed from the ‘Ka’ schedule land measuring .93 acre of land under plot No.  2385 of aforesaid khatians in the 1st part of Baisakh, 1406 B.S. and thereafter plaintiff asked the defendant to surrender possession of the same in the 1st part of 1409 B.S. and being denied filed the above suit under Section 9 of the Specific Relief Act, 1877.
 
Defendant contested the suit by filing written statement contending inter alia that ‘Ka’ schedule land belonged to plaintiff Samironnessa and she sold the same to Akali Bibi, Afsar Uddin and Azizal Bepari by registered deed dated 16.01.1964 and got possession of the same. Akalibibi afterwards died leaving husband Matiulla, Sons- Afsar and Azizal and they sold the ‘Ka’ scheduled land along with other land in favour of Sahir Uddin, Kabir, Nazrul and Kulsum by registered deed dated 10.01.1980. Kabir transferred .05 acre of land in favour of Jharna Akhtar by heba-bil-awaj deed dated 16.12.1993. Jharna Akhtar transferred the aforesaid purchased land in favour of defendant by registered deed dated 15.11.1995. Kabir Uddin further transferred .07(1/2) acre of land in favour of defendant by registered deed dated 30.11.1994. Sahir Uddin also transferred .09(1/4)+.03 acre of land to the defendant by registered deeds dated 30.11.1994 and 04.12.1995. Najmul Islam transferred .12(1/4) acre of land to the defendant by registered deed dated 30.11.1994. Kulsum Bibi also transferred .06+.06(1/2) acre of land by registered deeds dated 20.01.1994 and 04.12.1995. Defendant have been in possession of his above purchase land along with ‘ka’ schedule land with the knowledge of the plaintiff using as homestead and on cultivation. Plaintiff never possessed the suit land and the suit is fictitious.
 
Trial Court, on pleadings, framed the following issues-
  1. Is the suit maintainable in its’ present form?
  2. Is the suit barred by limitation?
  3. Is the suit properly valued and stamped?
  4. Whether the plaintiff had title and possession to the suit land?
  5. Whether the plaintiff was dispossessed by the defendant?
  6. Whether the plaintiff is entitled to get decree of khash possession?
  7. Whether the plaintiff is entitled to get any other relief?
In the trial court plaintiff examined P.W. 1 Most. Samironnessa, the plaintiff, P.W. 2 Farid Hossain, P.W. 3 Arman Ali and P.W. 4 Abu Bakar Siddik and produced exhibits 1-3, a registered deed dated 06.04.1955, R.S.  khatian and a rent receipt.
 
On the contrary, defendant examined D.W. 1 Abdul Malek, the defendant, D.W. 2 Md. Wares and D.W. 3 Najrul Islam and produced exhibits– ka-jha, different purchase deeds.
 
Trial court in consideration of the facts of the pleadings and evidence on record decreed the suit.
 
Defendant invoked the revisional jurisdiction against the decree passed by the trial court under section 115(2) of the Code of Civil Procedure before the District Judge. District Judge in his revisional jurisdiction on admission of the application set aside the judgment and decree passed by the trial court and remanded the suit to the trial court for adjudication of issues afresh.
 
Plaintiff thus obtained the instant Rule.
Now the pertinent question in the instant Rule involves-
  1. Whether the District Judge retained the jurisdiction to hear the revisional application against the ‘decree’ passed by the trail court?
  2. Whether it was justified to set aside the decree without being heard the plaintiff opposite party?
  3. Whether the application under section 9 of Specific Relief Act, 1877 was competent under the facts of possession and dispossession as alleged by the plaintiff?   
Mrs. Reshma Sultana, the learned Advocate appears on behalf of the petitioner.
 
On the otherhand, Mr. Syed Mamoon Mahbub, the learned Advocate appears on behalf of opposite party.
 
Both the learned Advocates concede that the impugned judgment is corum-non-judice. Section 115(2) of the Code of Civil Procedure runs thus-

“(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, make such order as it thinks fit (under line is mine).”

Section 115(2) of the Code of Civil Procedure provides revisonal jurisdiction of the District Judge against ‘an order’ passed by the Joint District Judge, Senior Assistant Judge or Assistant Judge from which no appeal lies’ but not against ‘decree or an order’ as it has been contemplated in section 115(1) of the Code, the application being filed before the High Court Division (under line is mine).

In the instant case the revisional application Under Section 115(2) of the Code of Civil Procedure before the District Judge was filed against the decree passed by the Senior Assistant Judge. Section 115(2) of the Code of Civil Procedure does not confer any revisional jurisdiction to the District Judge against the decree (under line is mine).

The revisional application before the District Judge was thus incompetent and impugned order passed thereby was corum-non-judice.

Trial court passed the order on contest hearing both the parties. It was unwarranted to set aside the decree passed by the trial court without issuing Rule to the plaintiff-opposite party.

On close security of the plaint it appears that the plaintiff filed the suit under section 9 of Specific Relief Act, 1877. It appears from apparent reading of the plaint that the suit was filed beyond the statutory period of limitation. The plaint contains- ‘নালিশের কারন বিবাদী গত ১৪০৬ সালের বৈশাখ মাসের ১ম ভাগে জবরানে ও বেআইনীভাবে বাদিনীর স্বত্ব দখলীয় নালিশী (ক) তপশীল বর্নিত জমিতে ইটের প্রাচীর নির্মান পূর্বক বাদিনীকে বেদখল করিলে বাদিনী সর্বশেষ গত ১৪০৯ সালের কার্তিক মাসের ১ম ভাগে নালিশী (ক) তপশীল বর্ণিত জমি হইতে বিবাদীকে তাহার নির্মিত প্রাচীর ভংগ করিয়া বাদিনীর বরাবরে দখল ছাড়িয়া দিতে বলিলে বিবাদী তাহা দিতে অস্বীকার করার পর অত্র আদালতের এলাকাধীন নালিশী মৌজায় নালিশের কারন উদ্ভব হইয়াছে (underline is mine)।’

A suit under Section 9 of Specific Relief Act, 1877 is governed by Article 3 of the Limitation Act, 1908.

Apparently the suit as under section 9 of Specific Relief Act, 1877 not being filed within six months from the date of dispossession, the plaint is liable to be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure.

The suit of the plaintiff thus appears as incompetent under section 9 of Specific Relief Act, 1877.

In view of the discussion made above the Rule bears no substance.

The Rule is, thus discharged.

Plaint is rejected under Section 11(d) of the Code of Civil Procedure, 1908.

No order as to costs.

Send down the L.C. Record along with a copy of the judgment.

Ed.