Razia Sultana and others Vs. Mir Shahinul Islam and others 2016 (2) LNJ 151

Case No: Civil Revision No. 1558 of 2014

Judge: Soumendra Sarker,

Court: High Court Division,,

Advocate: Mr. M.G.H. Ruhullah,Mr. N. A. M. Abdur Razzaque,Mr. Azam Khan,,

Citation: 2016 (2) LNJ 151

Case Year: 2016

Appellant: Razia Sultana and others

Respondent: Mir Shahinul Islam and others

Subject: Civil Law,

Delivery Date: 2016-05-26

Razia Sultana and others Vs. Mir Shahinul Islam and others 2016 (2) LNJ 151
 
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
Soumendra Sarker, J
And
Md. Ashraful Kamal, J.
Judgment on
26.05.2016
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Razia Sultana and another
. . . Petitioner
-Versus-
Mir Shahinul Islam and others
. . . Opposite Parties

Code of Civil Procedure (V of 1908)
Section 11
Order VII, Rule 11
It is apparent from the face of the papers that the matter in issues are not at all identical with the former suit and it is not directly or substantially in issues which has been heard and decided finally by a competent court of law. Apart from this; it transpires that the parties to the suits are not same. Beside this; it is a decided matter that the question of res-judicata as well as the question of limitation is a mixed question of facts and laws which is required to be adjudicated and decided during trial of the original suit. The learned trial Judge with regard to this; relying upon the decision of our Apex Court reported in 20 BLD(AD) 82 rightly held that there is no scope at the present stage to entertain such application under Order VII, rule 11 of the Code of Civil Procedure.       . . . (17)

Civil Revision No. 1558 of 2014
Mr. M.G.H. Ruhullah, Advocate
. . . For the Petitioners
Mr. N. A. M. Abdur Razzaque with
Mr. Azam Khan,  Advocate
. . . For the Opposite Parties

JUDGMENT

Soumendra Sarker, J:
The Rule was issued calling upon the opposite party No. 1 to show cause as to why the impugned judgment and order dated 18.11.2013 passed by the learned Joint District Judge, 5th Court, Dhaka, in Title Suit No.201 of 2013 rejecting the application filed by the defendants No. 1-3 under Order VII, rule 11 of the Code of Civil Procedure should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.
  1. The facts leading to the issuance of the Rule in a nutshell can be stated thus that the present opposite party No.1 as plaintiff instituted the original Title Suit being No.201 of 2013 in the Court of learned Joint District Judge, 5th Court, Dhaka for declaration of title and recovery of khash possession in the suit property contending inter alia that the disputed property had been owned and possessed by the plaintiff in his exclusive 16 annas share. In the disputed land there exist 04(four) shops of the plaintiff in which the tenants are one Md. Shafiullah in shop No. 1 and in shop No.2 the other tenant was one Monjur Mia and  the shops No.3 and 4 respectively were possessed by the plaintiff’s tenants Manju Mia and Rafique Mia. The defendants No. 1-3 claiming the property as of their own from their predecessor-in-interest Dr. Sirajul Islam. The remaining defendants No. 4-8 are also claiming title in the disputed property on the basis of their papers. The further case of the plaintiff is such that the defendants to the suit denying the plaintiff’s title dispossessed the plaintiff from the suit property including his shops  on 03.12.2009. The defendant’s claim in the disputed property on the basis of waqf is baseless, at which the title of the plaintiff has been clouded. To dispel that cloud the plaintiff instituted the original suit for declaration of the title and recovery of khash possession.
  2. The contrary case of the defendants No.1-3 in short is thus that the plaintiff to the suit having no manner of right, title, interest and possession in the disputed property on the basis of false allegation filed the original suit and the defendants had been owning and possessing the disputed properties including the shops therein in their own interest and knowledge of all from the very beginning. The further case of the defendants is such that the plaintiff’s suit is barred by the principle of res-judicata as for the same suit-premises earlier a Title Suit being No.158 of 2010 have been filed against the same parties and the earlier suit have been dismissed on contest vide judgment and decree dated 31.07.2012.
  3. During pendency of this suit the defendant-petitioners filed an application under Order VII, rule 11 of the Code of Civil Procedure before the trial court for rejection of the plaint on the ground that in respect of the self-same suit properties earlier the plaintiff in the 3rd  court of Assistant Judge, Dhaka filed a Title Suit being No.158 of 2010 and in that suit the plaintiff have failed to establish his case and also failed to prove his right, title and possession in the disputed premises. As a result of which the learned Assistant Judge, 3rd Court, Dhaka by his judgment and dismissal decree dated 31.07.2012 dismissed the suit on contest and as such the present suit is not tenable in the eye of law which is barred by the principle of res-judicata.
  4. Against the aforesaid application for rejection of the plaint the plaintiff-opposite party filed a written objection on the ground that the application for rejection of the plaint is liable to be rejected inasmuch as there is no scope to entertain the said application under VII, rule 11 of the Code of Civil Procedure. The plaintiff-opposite parties in their written objection specifically contended that the principle of res-judicata is not applicable in the instant case and the defendants out of ill-motive only to harass the plaintiff have preferred such application for rejection of plaint.
  5. The learned trial court viz. the learned Joint District Judge, 5th Court, Dhaka by the impugned judgment and order dated 18.11.2013 hearing the parties to the suit rejected the application under Order VII, rule 11 of the Code of Civil Procedure.
  6. Being aggrieved by and dissatisfied with the impugned judgment and order the defendant-petitioners have preferred this revisional application under section 115(1) of the Code of Civil Procedure and obtained the Rule with an interim order of stay.
  7. Mr. M.G.H. Ruhullah the learned Advocate appeared on behalf of the petitioners while Mr. N.A.M. Abdur Razzaque the learned Advocate appeared on behalf of the plaintiff-opposite-party No. 1.
  8. The learned Advocate appearing on behalf of the petitioners submits that in passing the impugned judgment and order dated 18.11.2013 the learned trial court committed an error of law resulting in an error in the decision in not considering that the plaintiff to the suit prior to the present suit for declaration of title filed a Title Suit being No.158 of 2010 and in that suit the plaintiff prayed for eviction of the defendants from the suit land on the ground that the plaintiff is the owner of the suit land but the learned Senior Assistant Judge, 3rd Court, Dhaka dismissed the suit on contest on 31.07.2012 and thus the present suit is barred by the principle of res-judicata as provided in section 11 of the Code of Civil Procedure. The learned Advocate further submits that the learned Joint District Judge, 5th Court, Dhaka having failed to appreciate the actual proposition of law arrived at an erroneous view that the provision of law as incorporated in Order VII, rule 11 of the Code of Civil Procedure is not applicable in the instant suit and it is a matter of evidence by virtue of which the matter agitated from the side of the defendants can be adjudicated and finally settled. The learned Advocate lastly submits that the learned trial court erred in law as well as in facts resulting in an error in the decision occasioning failure of justice and as such the impugned judgment and order is not sustainable.
  9. As against the aforesaid submissions of the learned counsel  of the petitioners the learned counsel appearing on behalf of the plaintiff-opposite party opposing the Rule controverted the arguments advanced from the side of the learned Advocate of the petitioners and submits that the trial Judge, viz. the learned Joint District Judge, 5th Court, Dhaka during passing the impugned judgment and order committed no illegality or irregularity. The learned Advocate further submits that in the instant suit at the present moment there is no scope to entertain such application under Order VII rule 11 of the Code of Civil Procedure and it is apparent from the face of the papers that the earlier suit which was filed by the plaintiff in the third court of learned Assistant Judge, Dhaka being Title Suit No.158 of 2010 was not between the same parties and the matter-in-issues are quite different and the points for determination on which that suit was disposed of are different with that of the present suit. The learned Advocate also submits that the earlier suit was not a suit for declaration of title and recovery of khash possession. Hence; the provision laid down in section 11 of the Code of Civil Procedure is very much inconsistent for it’s application in the instant suit as the principle of Resjudicata itself provides that, “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.”
  10. Therefore, the former suit being Title Suit No.158 of 2010 was quite different and the matter for adjudication therein is not identical with the present suit being Title Suit No.201 of 2013. The learned Advocate lastly submits that the learned trial Judge rightly held that at this stage; there is no scope for rejection of the plaint as the matter of res-judicata and the point of limitation is a mixed question of facts and law.
  11. We have considered the submissions of the learned Advocates and have perused the impugned judgment and order passed by the learned trial Court i.e. the learned Joint District Judge, 5th Court, Dhaka in Title Suit No.201 of 2013 including the judgment and dismissal decree passed in the earlier suit being No.`158 of 2010 along with the connected papers as well as the application filed under Order VII rule 11 of the Code of Civil Procedure.
  12. Having gone through the connected papers it transpires that the former suit i.e. the Title Suit No.158 of 2010 was instituted by the present plaintiff-opposite party No. 1 for eviction of tenant from the suit premises and the subsequent suit which is Title Suit No.201 of 2013 is a suit for declaration of title and recovery of khash possession. It further transpires from the connected papers that the learned trial Judge in the former suit framed four issues for decisions and those were as follows:
ক) অত্র মোকদ্দমাটি বর্তমান আকারে ও প্রকারে চলতে পারে কিনা?
খ) অত্র মোকদ্দমার নালিশী সম্পত্তির সংশ্লিষ্টতায় বাদী বিবাদীদের মধ্যে মালিক ভাড়াটিয়ার সম্পর্ক বিদ্যমান ছিল বা আছে কি না ?
গ) বাদী মালিক মর্মে অত্র মোকদ্দমা আনয়ন করার কষদয়ড় জঢ়তশধভ আছে কি না এবং বিবাদীগণ খেলাপী ভাড়াটিয়া গণ্যে উচ্ছেদযোগ্য কি না ?
ঘ) অত্র মোকদ্দমা প্রার্থিত মতে বাদী প্রতিকার পেতে পারে কিনা?’’
  1. On the aforesaid four issues for determination the learned trial Court decided the fate of that suit  and dismissed the suit for want of necessary proof.
  2. We have come across from the instant Title Suit being No.201 of 2013 that this suit is a suit for declaration of title and recovery of khash possession. In the said suit the proposed issues from the side of the plaintiff were as follows:
১z অত্র মোকদ্দমা বর্তমান আকারে ও প্রকারে চলিতে পারে কি না?
২z অত্র মোকদ্দমা পক্ষদোষে দুষ্ট কিনা ?
৩z অত্র মোকদ্দমা তামাদি আইনে বারিত কি না ?
৪z অত্র মোকদ্দমা রেস জুডিকেটা দ্বারা বারিত কি না ?
৫z নালিশী সম্পত্তি ওয়াকÚফকৃত সম্পত্তি কি না ?
৬z বাদী স্বত্ব সাব্যসÛত্র্রমে খাস দখল পাইতে পারে কি না ?
  1. Obviously, in view of the nature of the present suit the issues which have been proposed from the side of the plaintiff deserve consideration of the trial Judge inasmuch as the matter of controversy between the parties to the suit is encircled within the right, title, interest and the matter of possession and dispossession of the concerned parties. Besides this; the provision laid down in section 11 of the Code of Civil Procedure provides as many as five conditions, which are necessary to constitute res-judicata. These are : (i) “The matter directly and substantially in issue” in the former suit must be the same in the subsequent suit. (ii) The former suit must have been between the same parties or between parties under whom they or any of them claim. (iii) The parties in the subsequent suit must have litigated under the same title in the former suit. (iv) The Court which decided the former suit must have been competent to try the subsequent suit. (v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided in the former suit.
  2. On meticulous consideration of the application for rejection of the plaint in connection with the former suit and the present Suit being No.201 of 2013 it is apparent from the face of the papers that the matter in issues are not at all identical with the former suit and it is not directly or substantially in issues which has been heard and decided finally by a competent court of law. Apart from this; it transpires that the parties to the suits are not same. Beside this; it is a decided matter that the question of res-judicata as well as the question of limitation is a mixed question of facts and laws which is required to be adjudicated and decided during trial of the original suit. The learned trial Judge with regard to this; relying upon the decision of our Apex Court reported in 20 BLD(AD) 82 rightly held that there is no scope at the present stage to entertain such application under Order VII, rule 11 of the Code of Civil Procedure.
  3. Having regard to the facts, circumstances and proposition of law we have every reason to inclined such a view that the learned Joint District Judge, 5th Court, Dhaka committed no illegality in disallowing the application for rejection of the plaint, rather; he was quite justified in holding the view that this provision of law is not applicable in the instant suit. Hence; we find no substance in the Rule.
  4. In the result, the Rule is discharged. The impugned judgment and order dated 18.11.2013 passed by the learned Joint District Judge, 5th Court, Dhaka, in Title Suit No.201 of 2013 rejecting the application filed by the defendants No. 1-3 under Order VII, rule 11 of the Code of Civil Procedure stands good.
  5. Let the order of stay granted earlier by this Court at the time of issuance of the Rule be vacated.
  6. However; there will be no order as to costs.
        Communicate the judgment and order immediately.
Ed.