Present:

Mr. Justice Sheikh Abdul Awal Civil Revision No. 1728 of 2018

Kazi Enayet Hossain being dead his legal heirs Kazi Mizanur Shanto and others

                      ........Plaintiff-petitioners. Versus

Mayor, Madaripur Pourasava and others.

                                   ... Defendant-opposite parties. Mr. Md. Humayun Kabir Bulbul, Advocate.

           ....…For the Plaintiff-petitioners. Mr. Md. Alauddin, A.A.G.

..For the Pro-forma Defendant-opposite party No.4 Heard 22.08.2024, 01.09.2024 and

Judgment on 01.09.2024.

This Rule was issued calling upon the opposite party Nos. 1-3 to show cause as to why the impugned judgment and order dated 17.04.2017 passed by the learned Additional District Judge, Madaripur in Miscellaneous Appeal No. 27 of 2014 disallowing the appeal and affirming the order dated 10.08.2014 passed by the learned Senior Assistant Judge, Sadar, Madaripur in title Suit No. 153 of 2014 rejecting the application for temporary injunction should  not  be  set-aside  and/or  such  other  or  further  order  or orders passed as to this Court may seem fit and proper.

Facts of the case, briefly, are that the petitioner as plaintiff filed Title Suit No. 153 of 2014 in the Court of the learned Senior Assistant Judge, Sadar, Madaripur impleading the opposite parties as defendants praying the following reliefs:

After institution of the suit, the plaintiff-petitioner filed an application under Order XXXIX, Rule 1 read with section 151 of the Code of Civil Procedure for temporary injunction.

Defendants resisted the said application by filing written objection contending, inter-alia, that the plaintiff has/had no right, title and possession in the suit land, the plaintiff filed the case on false  averments  and  as  such,  the  application  for  temporary injunction should be rejected.

The learned Senior Assistant Judge, Sadar, Madaripur after hearing the parties by his order dated 10.08.2014 rejected the application holding that the plaintiff has no prima-facie arguable case,  balance  of  convenience  and  inconvenience  is  not  in  his favour.

Against  which  the  plaintiff-petitioner  preferred Miscellaneous Appeal No. 27 of 2014 before the learned District Judge,  Madaripur  which  was  subsequently  transmitted  to  the Court  of  learned  Additional  District  Judge,  Madaripur  for disposal,  who  by  the  impugned  judgment  and  order  dated 17.04.2017 dismissed the appeal and affirmed the order of the trial Court dated 10.08.2014 on the finding that:

.

Being aggrieved by the aforesaid judgment and order dated 17.04.2017  passed  by  the  learned  Additional  District  Judge, Madaripur the plaintiff-petitioner moved before this Court and obtained the present Rule.

Mr.  Md.  Humayun  Kabir  Bulbul,  the  learned  Advocate appearing for the plaintiff-petitioner submits that the suit property as  khas  land  of  the  Government  leased  out  in  favour  of  the

plaintiff petitioner through Settlement Case No.                /        

/         

and lease deed No. 1118 dated 28.02.1987 and also handed over the possession of the suit land in favour of the plaintiff. The learned Advocate further submits that proposed khatian issued in favour of the plaintiff and the plaintiff petitioner paid rent to the Government which has been filed before the trial Court below. He further submits that the suit lan was recorded in BS khatian No. 358 in the name of the plaintiff-petitioner and all these material documents indicate that the plaintiff has/had good arguable case in his favour and balance of convenience and inconvenience is well in favour of the plaintiff-petitioner.

Mr. Md. Alauddin, the learned Assistant Attorney General appearing  for  the  Government  pro-forma  defendant-opposite party  No.  4  submits  that  the  Government  is  a  pro-forma respondent in the case, the record shows that the Government leased out the suit property in favour of the plaintiff-petitioner. He, however, did not add any further submission.

I have considered the submissions of the learned Advocate for  the  plaintiff-petitioner  and  the  learned  Assistant  Attorney General and and having gone through the materials on record, the only  question that calls  for  my consideration  in this Rule  is whether the Courts below committed any error in finding that the plaintiff petitioner has no prima-facie arguable case, balance of convenience and inconvenience is not in his favour. 

On  perusal  of  the  record,  it  appears  that  the  plaintiff- petitioner  filed  Title  Suit  No.  153  of  2014  for  permanent injunction in the Court of the learned Senior Assistant Judge, Sadar,  Madaripur  and  soon  thereafter  he  filed  an  application under Order XXXIX, Rule 1 read with section 151 of the Code of Civil  Procedure for  temporary  injunction  and  both  the Courts below rejected the said application on the ground that the plaintiff has/had no prima-facie arguable case in his favour, all the record of right prepared in the name of paurashava. It further appears that in this case the property in question was leased out in favour of  plaintiff  on  28.02.1987  through  Settlement  Case

No.                /          and thereafter, the Government   also

/         

handed over the possession in favour of the plaintiff-petitioner, who paid  rent  to  the  Government  and  he  also  filed  all  the documents to strengthen his right, title and possession in the suit land.  All  these  documents  show  that  the  plaintiff-petitioner has/had good prima-facie arguable case in his favour and balance of  convenience  and  inconvenience  is  well  in  favour  of  the plaintiff-petitioner.  Therefore,  the  reasons  given  by  the  courts below for passing the rejection order are not sustainable either in law or on facts.

It is found that at the time of issuance of this Rule a single Bench of this Court by the Rule issuing order dated 28.05.2018 granted temporary injunction in the following language that:

“Pending  disposal  of  the  Rule,  let  the opposite  parties  be  restrained  by  an  order  of injunction  from  dispossessing  the  petitioners, from cutting trees and from erecting houses on the suit land for a period of 6 (six) months.” and the said order of injunction was extended time to time and finally, it was extended till disposal of the Rule on 25.11.2019.

Considering all the aspects of the case particularly in a case of  this  nature,  I  am  of  the  view  that  ends  of  justice  will sufficiently  be  met  if  the  ad-interim  order  of  injunction  is extended till disposal of the Title Suit No. 153 of 2014.

The Rule is, therefore, made absolute without any order as to costs, impugned judgment and order dated 17.04.2017 passed by  the  learned  Additional  District  Judge,  Madaripur  in Miscellaneous Appeal No. 27 of 2014 affirming the order dated 10.08.2014  passed  by  the  learned  Senior  Assistant  Judge, Madaripur Sadar, Madaripur in Title Suit No. 153 of 2014 is set- aside.  Application  of  the  plaintiff-petitioner  for  ad-interim injunction  filed  before  the  Senior  Assistant  Judge,  Sadar, Madaripur  (Annexure-B)  is  allowed  and  that  the  order  of injunction  dated  28.05.2018  passed  by  this  Court  is  hereby extended till disposal of the Title Suit No. 153 of 2014.

Since the suit is an old one of 2014, the trial Court below is directed to dispose of the suit expeditiously as early as possible preferably within 1 year from the date of receipt of this judgment.

Let a copy of the judgment be sent down at once.