Present:

Mr. Justice Sheikh Abdul Awal

and

Mr. Justice Md. Mansur Alam

First Appeal No. 197 of 2015

In the  Matter of:

Memorandum  of  appeal  from  the  original Decree.

-and-

In the Matter of:

Din Islam Sikder.

                               .....Plaintiff-appellant.

        -Versus-

Abdur Rahman being dead his heirs Most. Suraia Rahman and others

                 …...Defendant-respondents.

Mr. Sk. Shaifuzzaman, Advocate

     ……. For the appellant.

Mr. Md. Mozibur Rahman, Advocate.

…......For the respondents.

Heard on 03.11.2024, 07.11.2024, 11.11.2024 and

Judgment on 13.11.2024.

Sheikh Abdul Awal, J:

This first appeal at the instance of the defendant-appellant is directed against the judgment and decree dated 05.03.2015 (decree signed on 12.03.2015) passed by the learned Joint District Judge, 3rd Court, Dhaka in Civil Suit No. 43 of 2006 allowing the application under Order VII Rule 11 read with section 151 of the Code of Civil Procedure rejecting the plaint of the suit.

The relevant facts of the case in brief are that the appellant as plaintiff filed Civil Suit No. 43 of 2006 in the Court of the learned Joint  District  Judge,  3rd  Court,  Dhaka  impleading  the defendant- respondent praying the following reliefs:

The  plaint  case  in  short  is  that  the  defendant-respondent purchased the suit land on 20.06.1955 by registered deed No.3247. Thereafter,  the  defendant-respondent  and  others  took  loan  from I.F.I.C Bank, Motijheel, C/A, Dhaka by giving mortgage the suit land  through  the  Registered  mortgaged  deed  No.  2434  dated 07.06.1987. Thereafter, they failed to pay the loan amount and for recovery of the said loan money IFIC Bank filed Civil Suit No.41 of 1998 before the 3rd Artha Rin Court, Dhaka who decreed the suit exparte by its judgment and decree dated 12.02.2000. Then IFIC Bank filed decree execution Case No. 13 of 2001 and the learned Court declared auction sale by giving  advertisement in the  daily news paper. Accordingly auction took place on 01.12.2002 in which highest  bidder  Mr.  Khairul  Enan  Faruqui  and  Zinat  Ashrafee purchased the suit land and then took possession over the suit land and mutated their name through namzari case and paid rent to the Government. Thereafter, on 03.03.2005 they sold the said land to the plaintiff-appellant by registered deed No. 3147 and thereafter the plaintiff mutated his name through namjari case and paid rent to the Government  and  took  gas  and  electric  connections  in  his  name. Moreover, the appellant handed over the said land to a developer company for construct a building. In this backdrop on 16.03.2006 the defendant-respondent by showing an eviction order passed in SSC Case No.4 of 1997 tried to evict the appellant through police force and hence, the suit.

The defendant contested the suit by filing written statement denying all the material allegations made in the plaint stating, inter- alia, that IFIC bank filed Civil Suit No. 41 of 1998 before 3rd Artha Rin Adalat, Dhaka, who decreed the suit  exparte preliminary  on 07.09.1999 and finally decreed on 12.02.2000. Thereafter, the decree execution Case No. 13 of 2001 was filed and in the execution Case the executing Court ordered for sale of the suit land in auction. In this  backdrop  the  dependant  respondent  against  the  said  exparte decree filed Miscellaneous Case No.79 of 2003 under section 19(2) of Artha Rin Adalat Ain, 2003 before the Artha Rin Adalat, 3rd Court,  Dhaka, who  set-aside  the  exparte  preliminary  and  final decree. Thereafter,   on 05.09.2004 upon hearing the parties  the learned Court dismissed the suit by its judgment and decree dated 05.09.2004. Against the said judgment and decree dated 05.09.2004 IFIC Bank filed Artha Rin Appeal No. 21 of 2004 and upon hearing same the learned Additional District Judge, 7th Court, Dhaka by modifying the judgment and decree of the trial Court allowed the appeal by  its  judgment  and  Decree  dated 23.03.2005  against  the respondents, who filed Civil Revision No. 2581of 2005 before the High Court Division of Bangladesh Supreme Court against the said judgment and decree dated 23.03.2005 and upon hearing the parties the said rule was made absolute in Civil Revision No.2581of 2005, vide judgment and order dated 04.06.2008 affirming the judgment and decree of the trial Court. Thereafter, against the said judgment and order dated 04.06.2008 IFIC Bank filed Civil Petition for leave to  Appeal  No.2306  of  2009  before  the  Appellate  Division  of

Bangladesh Supreme Court, who upon hearing the parties dismissed the said Civil Petition for leave to Appeal by its judgment and order dated 08.04.2012 and in view of the said judgment and order dated 08.04.2012 the plaintiff has/had no right, title in the suit land and as such, the suit is liable to be dismissed.

Thereafter, while the suit was in progress the defendants filed an  application  under  Order  VII,  Rule  11  of  the  Code  of  Civil Procedure for rejection of the plaint.

The learned Joint District Judge, 3rd Court, Dhaka upon hearing the parties by the impugned judgment and order dated 05.03.2015 rejected the plaint holding that:- “

”

Being  aggrieved  by  and  dissatisfied  with  the  aforesaid impugned  judgment  and  order  dated  05.03.2015,  the  plaintiff- appellant preferred this appeal.

Mr. Sk. Shaifuzzaman, the learned Advocate appearing for the plaintiff-appellant submits that admittedly the plaintiff purchased the suit land by registered deed and thereafter, he constructed semi paka tin-shed house and took all utility connections including electricity and gas connection in his name and it is on record that the Hon’ble Appellate Division of the Bangladesh Supreme Court in its judgment passed in Civil Petition for Leave to Appeal No. 2306 of 2009 did not discuss anything as to auction sale as well as right, title and possession of the plaintiff in the suit land. Moreover, the plaintiff

appellant was not made party in Civil Suit No.41 of 1998 although the learned Joint District Judge, 3rd Court, Dhaka without considering

all this factual aspects of the case mechanically rejected the paint, which occasioned a failure of justice. Finally, the learned Advocate submits, it is well settle principle that in deciding an application under Order VII, Rule 11 of the Code of Civil procedure the Court is not permitted to travel beyond the averments made in the plaint and in this case it is apparent that the contents of the plaint do disclose the cause of action for the suit but the trial court most illegally  in exercising its power under Order VII, Rule 11 traveled beyond the statements  made in the plaint which resulted in an error in the impugned   decision  occasioning  failure  of  justice.  The  learned Advocate  to  fortify  his  submissions  has  relied  on  the  decisions reported in 3 ALR 92, 5 ALR 346, 13 ALR 66, 2 ALR 99, 4 ALR 44, 62 DLR (AD) and 68 DLR 255.

Mr. Md. Mozibur Rahman, the learned Advocate appearing for the defendant-respondents, on the other hand, supports the impugned judgment and order, which was according to him just, correct and proper. He submits that as per judgment of the Hon’ble Appellate Division it is clear like day-light that the plaintiff’s baya lost his right, title over the suit land and therefore, the plaintiff’s so-called right,  title  and  possession  also  became  baseless  and  illegal.  The learned Advocate further submits that since the suit is a fruitless litigation as  like  as  day-light  the  same  should  be  buried  at  its inception so that no further time is consumed in a fruitless litigation. The learned Advocate to fortify his submission has relied on the decisions reported in 25 BLC 92 and 9 BLT 70.

Having heard  the  learned  counsels  for  both  the  parties  and having gone through the materials on record, impugned judgment and order including the application under Order VII Rule 11 read with section 151 of the Code of Civil Procedure, the only question that calls for our consideration in this appeal is whether the trial Court  committed  any  error  in  finding that  in  the  facts  and circumstances the suit is a fruitless litigation and thus the plaint of the suit is liable to be rejected.

On a reading of the plaint, it appears to us that the contents of the plaint do disclose the cause of action of the suit. The proposition of law is by now well settled that in exercising the power under Order  VII,  Rule  11  of  the  Code  the  Court  can  look  into  the statements in the plaint alone, it cannot consider any fact stated in any document produced by the defendant without framing any issue which can be decided only at the trial on taking evidence.

It is found the plaintiff’s baya named Din Islam purchased the suit  land  in  auction  and  the  Hon’ble  Appellate  Division  of Bangladesh Supreme Court in its judgment passed in Civil Petition for Leave to Appeal No.2306 of 2009 did not discuss anything as to auction sale or purchase of the suit land.

In  the  given  facts  and  circumstances  of  the  case  and  the decision of the highest Court as cited above as well as the above submission of the learned Advocate for the appellant, we have no hesitation to hold that to decide the truth of the matter evidence is necessary which can be available only in the course of trial of the suit.  It is indeed unfortunate that the learned Joint District Judge did not at all consider all these aspects of the case both on law and fact in deciding an application under Order VII, Rule 11 of the Code of Civil Procedure for rejection of the plaint and non-consideration of the same has caused a great miscarriage of justice. We are, therefore, of the opinion that the judgment and decree of the Joint District Judge  does not deserve to be sustained.

In view of my discussions made in the foregoing paragraphs it is by now clear that the instant appeal must succeed.

In the result, the appeal is allowed. The impugned judgment and decree dated 05.03.2015 passed by the learned Joint District Judge, 3rd Court, Dhaka in Civil Suit No. 43 of 2006 rejecting the plaint is set-aside.

The trial Court concerned is, however, directed to proceed with the suit expeditiously in accordance with law.

Let a copy of this judgment along with lower Court’s record be sent down at once.

Md. Mansur Alam, J:

I agree.