Ranu Begum and another Vs. Kazi Liakat Ali and others, 50 DLR (AD) (1998) 142

Case No: Civil Petition for Leave to Appeal No. 629 of 1997

Judge: Bimalendu Bikash Roy Choudhury,

Court: Appellate Division ,,

Advocate: MR. Shamsul Hoque Siddique,,

Citation: 50 DLR (AD) (1998) 142

Case Year: 1998

Appellant: Ranu Begum and another

Respondent: Kazi Liakat Ali and others

Subject: Revisional Jurisdiction,

Delivery Date: 1997-7-23

 
Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal CJ
Mustafa Kamal J
Md. Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
 
Ranu Begum and another
............................. Petitioners
Vs.
Kazi Liakat Ali and others
............................. Respondents 
 
Judgment
July 23, 1997. 
 
The Code of Civil Procedure, 1908 (V of 1908)
Section 115
The exercise of the revisional power under section 115 of the Civil Procedure Code is a discretionary one. Where alternative remedy is available, discretionary power is not to be exercised…..(3)
The exercise of the revisional power under section 115 of the Civil Procedure Code is a discretionary one. Where alternative remedy is available, discretionary power is not to be exercised…..(3)
 
Lawyers Involved:
SK Afzalur Rahman, Advocate, instructed by Md. Nawab Ali, Advocate-on-Record-For the Petitioners.
Shamsul Haque Siddique, Advocate-on-Record-For the Respondents Nos. 1 & 2. 
Not represented— Respondent Nos. 3-5.
 
Civil Petition for Leave to Appeal No. 629 of 1997. 
 
JUDGMENT
 
Bimalendu Bikash Roy Choudhury J.
 
The plaintiffs are the petitioners before us. They brought in the Fourth Court of Assistant Judge, Dhaka a suit being Title Suit No. 234 of 1996 against defendant Nos. 1 and 2 and others to have it declared that stamp paper purporting to be a receipt given by them for a sum of Taka 10,00,000 was forged fraudulent and not binding on them. After the institution of the suit they made an application for temporary injunction restraining defendant Nos. 1 and 2 from taking any step to realise the said amount from them. The learned Assistant Judge thereupon issued a shoe cause notice to the said defendants. In pursuance thereof, the defendants entered appearance and filed a written objection thereto. As no step was taken by the plaintiffs on 12 February 1997, the date fixed for hearing of the matter the application was rejected by the learned Assistant Judge after hearing the learned Advocate for the defendants in support of the written objection, The plaintiffs moved the High Court Division with an application under section 115 of the Code of Civil Procedure, being Civil Revision No. 1216 of 1997 against the said order. A learned Single Judge of the said Court discharged the Rule, by his order dated May 1997, on the view that the revision case was incompetent, as the plaintiffs not availed themselves of the remedy provided in Order 43, rule 1(r) of the Code of Civil Procedure. 
 
2. The plaintiffs have now presented this petition seeking leave to appeal therefrom. They contend, that having regard to the facts of the case, the High Court Division was not justified in discharging the Rule. 
 
3. The exercise of the revisional power under section 115 of the Civil Procedure Code is a discretionary one. Ordinarily it is not to be exercised where there is an alternative remedy open to a party.
 
4. In the instant case the order of rejection of the application for temporary injunction was appealable under Order 43, rule 1(r) of the Code. The plaintiffs not having pursued the said course, the High Court Division was right in discharging Rule. The order of the learned Assistant Judge itself was a discretionary one and the circumstance of the case indicate that the said discretion was properly exercised by him. 
 
This petition is, therefore, dismissed.
 
Ed.