Sheikh Abdul Mazed Vs. Md. Shomrej Ali Mandal and others, V ADC (2008) 680

Case No: Civil Petition for Leave to Appeal No. 1133 of 2005

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Syed Mahbubar Rahman,,

Citation: V ADC (2008) 680

Case Year: 2008

Appellant: Sheikh Abdul Mazed

Respondent: Md. Shomrej Ali Mandal and others

Subject: Declaration of Title,

Delivery Date: 2006-7-9

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin
Md.Tafazzul Islam J
 
Sheikh Abdul Mazed
…………………Petitioner
Vs.
Md. Shomrej Ali Mandal and others
…………………Respondents
 
Judgment
July 9, 2006.
 
Code of Civil Procedure (V of 1908)
Section 115(2), 115(3), 115(4), 151
The suit was filed seeking declaration of title. … (2)
It is seen from the provision of section 115(4) of the Code of Civil Procedure that revision can be referred before the High Court Division against an order of the Court of District Judge or Additional District Judge passed under section 115(2) or 115(3) of the Code of Civil Procedure when aforesaid courts committed an error in respect “of an important question of law resulting in erroneous decision occasioning failure of justice”. …. (6)
 
Lawyers Involved:
Syed Mahbubar Rahman, Advocate-on-Record-For the Petitioner.
Not represented- the Respondents.
 
Civil Petition for Leave to Appeal No. 1133 of 2005.
(From the Judgment and Order dated May 7, 2005 passed by the High Court Division in Civil Revision No. 1748 of 2004).
 
JUDGMENT
 
Md. Ruhul Amin J.
 
This petition for leave to appeal is directed against the judgment dated May 7, 2005 of a Single Bench of the High Court Division in Civil Revision No. 1748 of 2004 discharging the Rule obtained against the order dated March 3, 2004 passed by the learned District Judge, Satkhira in Civil Revision No. 1 of 2004 dismissing the same and thereupon affirming the order dated June 1, 2003 and November 22, 2003 passed by the 2nd Court of Joint District Judge, Satkhira in Title Suit No. 101 of 1999. The revisional application before the High Court Division was filed under section 115(4) of the Code of Civil Procedure.
 
2. The suit was filed seeking declaration of title in respect of the land described in the schedule attached to the plaint and for further declaring that the compromise decree passed in Title Suit No.69 of 1997 of the Court of Assistant Judge, Sadar, Satkhira is fraudulent and not binding on the plaintiffs.
 
3. The defendant entered appearance and filed written statement. At one stage of the suit the plaintiffs filed an application under section 151 of the Code of Civil Procedure with the prayer for staying the operation of the soleh (compromise) decree dated September 1, 1997 passed in Title Suit No.69 of 1997 till disposal of the plaintiffs' suit and the trial Court upon hearing the parties allowed the application so filed with the prayer for staying the soleh decree.
 
4. The defendants filed an application for vacating the order of stay which was passed on June 1, 2003. The trial Court rejected the said application by the order dated November 22, 2003. Thereupon defendant preferred revisional application before the Court of District Judge as against the orders dated June 1, 2003 and November 22, 2003 and thereupon Civil Revision No.1 of 2004 was registered. The learned District Judge by the order dated March 3, 2004 rejected the revision case. Then the defendant moved the High Court Division in revisional jurisdiction and obtained Rule.
 
5. It was contended from the defendant-petitioner's side that the soleh decree has already been acted upon long before the filing of the application seeking stay of the said decree by the execution and registra­tion of the kabala and as such there having nothing to stay the trial Court as well as the Court of District Judge were in error in passing the order of stay and in rejecting the prayer for vacating the order of stay.
 
6. It was contended on behalf of the plain­tiff opposite party that in the background of the relief sought in the suit and when the examination of the witness from the side of the plaintiffs has already been commenced as well as in the background of the facts and circumstances of the case the Court of District Judge as well as the trial Court were not in error in passing the orders in respect whereof the defendant moved the Court of District Judge and the High Court Division. It was also contend­ed that since no important question of law is involved in the revisional application filed under section 115(4) of the Code of Civil Procedure and as there has been no failure of justice in view of the order passed by the trial Court and as such the revisional application was not maintain­able. The High Court Division on consid­eration of the totality of the facts of the case of the parties and the relief sought by the plaintiffs was of the view that the trial court did not commit any error in making the Orders impugning which revisional application was filed before the Court of District Judge. The High Court Division further held that the Court of District Judge in the background of the facts and circumstances of the case did not commit any error in refusing to interfere with the orders passed by the trial Court and there­upon in rejecting the revisional applica­tion. Finally the High Court Division dis­charged the Rule upon holding that no important question of law involved in the revisional application.
 
7. We have heard the learned Advocate-on-record and perused the materials on record. It is seen from the provision of section 115(4) of the Code of Civil Procedure that revision -can be preferred before the High Court Division against an order of the Court of District Judge or Additional District Judge passed under section 115(2) or 115(3) of the Code of Civil Procedure when aforesaid Courts committed an error in respect "of an important question of law resulting in erroneous decision occasioning failure of justice".
 
8. In the background of the materials on record we are of the view the High Court Division was not in error in discharging the Rule since in passing the order sought to be revised by the High Court Division no error as to important question of law was committed by the courts below and consequent thereupon there was no failure of justice.

Accordingly the petition is dismissed.
 
Ed.