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IN THE SUPREME COURT OF BANGLADESH            HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

CIVIL REVISION NO. 1732 OF 2010

In the matter of:

An application under Section 115(1) of the Code of Civil

Procedure.

AND

In the matter of: Executive Engineer   

.... Petitioner -Versus-

Khan Moklessur Rahman and others 

....Opposite-parties

Mr. Md. Rafiqul Islam (Montu, DAG with

Mr. Mohammed Shafiqur Rahman, DAG with Mr. Sheikh Mohammad Faizul Islam, AAG with Mr. Md. Mizanur Rahman, AAG with

Md. Ershad Hossain (Rashed), AAG with

Mr. Md. Husni Mubarak (Rocky), AAG

                  ... For the petitioner                              Mr. Nur Mohammad Talukder, Advocate

                              ....For the opposite party no. 16.

Heard on 01.09.2024 02.09.2024 and Judgment on 02.09.2024

Present:

Mr. Justice Md. Mozibur Rahman Miah

And

Mr. Justice Md. Bashir Ullah

Md. Mozibur Rahman Miah, J:

At the instance of the plaintiff in Money Suit No. 02 of 1997, this rule was issued calling upon the opposite-party nos. 1-14 to show cause as


1

to  why  the  order  no.59  dated  07.09.2009  passed  by  the  learned  Joint

District Judge, 1st court, Satkhira in the said Money suit allowing ˚H

application under Order 1 rule 10(2) read with section 151 of the Code of

Civil Procedure for striking out the names of the opposite party nos. 1-14

(defendant nos. 3-16 in the original suit) from the plaint should not be set

aside set aside and/or such other or further order or orders be passed as to

this court may seem fit and proper.

At the time of issuance of the rule, the operation of the said order

dated 07.09.2009 was stayed till disposal of the rule.  

The salient facts leading to issuance of the instant rule are:

The  present  petitioner  namely,  the  Executive  Engineern  local

government and engineering department, Satkhira as  plaintiff filed the

aforesaid  Money  Suit  against  the  present  opposite  party  nos.1-14

impleading them as defendant nos. 3-16 and those of the opposite party

nos.  15-16  as  defendant  nos.  1  and  2  claiming  an  amount  of  taka

50,71,248/- seeking following reliefs:

(L) ¢hh¡c£N­el ¢hl¦­Ü h¡c£l f¡Je¡ 50,71,248/- (fb·¡m

mr HL¡šl q¡S¡l c¤Can BV Q¢õn) V¡L¡ h¡hc h¡c£l Ae¤L¥­m V¡L¡l fË¡b¢jL ¢X¢œ²fËc¡­el j¢SÑ qu z

  1.      h¡c£l ®p¡e¡m£ hÉ¡w­L p¡ar£l¡ n¡M¡l Ef­l¡š² ®~hd

HL¡E¾V qC­a fËa¡le¡ S¡¢mu¡¢a J ®k¡Np¡S¢nL ­h BaÁp¡­al E­Ÿ­nÉ 1ew ¢hh¡c£l e¡¢ju ®p¡e¡m£ hÉ¡wL p¡ar£l¡ n¡M¡u S¡¢mu¡¢a Qm¢a ¢qp¡h ew 5048/3 HL¡E­¾V BVLL«a Ah¢nø hÉ¡­m¾p V¡L¡ 11,84,986,00 j¡œ Hhw 1ew ¢hh¡c£l Bmj¡l£ qC­a EÜ¡lL«a Hhw

haÑj¡­e SëL«a 21,568,00 V¡L¡ h¡c£l ®p¡e¡m£ hÉ¡wL, p¡ar£l¡

n¡MÉl Qm¢a ¢qp¡h ew 5072/3 Eš² plL¡l£ ®~hd HL¡E­¾V Øq¡e¡¿¹l œ²­j pjeÄu L¢lh¡l ¢Xœ²£ B­cl fËc¡e j¢SÑ qu z

  1.    ¢hh¡c£N­el Øq¡hl/AØq¡hl pÇf¢š fË­k¡|S­e ¢em¡j­­N

¢hœ²u à¡l¡ ¢Xœ²£l V¡L¡ Bc¡u h¡hc ýL¥j qu Hhw ®j¡LŸj¡ Qm¡L¡­m Eq¡ HV¡Q­j¾V B­cl c¡­e j¢SÑ qu z

  1.    Aœ ®j¡LŸÑj¡ h¡hc k¡ha£u MlQ¡ pq e¡¢mn£ Bj¡e­al

V¡L¡l Efl Eš² AbÑ Bc¡m­al L¡m fkÑ¿¹ hÉÉw¢Lw ®l­V fË¡fÉ p¤c J plL¡l£ Y~¡L¡ BaÁp¡a Bc¡­l qul¡e£ ®qa¥ cªø¡¿¹ j¤mL MlQ¡l ¢Xœ²£ fËc¡­e j¢SÑ qu z

  1.    j¡ee£u Bc¡m­al p¤¢h­hQe¡u ¢hQ¡l L¡­m A¡l ®k pLm

fË¢aL¡l f¡C­a h¡c£ qLc¡l p¡hÉØqqe ach¡hc ¢Xœ²£ fËc¡­e j¢SÑ qu z 

In order to contest the suit, the defendant no. 3, defendant nos. 5,6 7

and 13, defendant nos. 8-11, defendant no. 15 and defendant no. 16 filed

separate sets of written statement denying all the material averments so

made in the plaint and finally prayed for dismissing the suit.

When the suit was at the stage of peremptory hearing, the defendant

nos. 3-16 on 07.09.2009 filed an application under Order 1 rule 10(2) read

with section 151 of the Code of Civil Procedure for striking out their name

from  the  plaint  stating  inter  alia  that,  challenging the  propriety  of  the

charge sheet so have been submitted against all those defendants they (that

is defendant nos. 3-16) filed separate Miscellaneous Case bearing no. 150

of 1998 and 342 of 1998 for quashing the criminal proceeding initiated

against  them,  and  the  rules  of  those  two  Miscellaneous  Cases  were

ultimately made absolute quashing the criminal cases initiated against them

so they are in no way involved in the misappropriation of funds as alleged

by the plaintiffs-petitioner against those defendant nos. 3-16 which is why

they cannot be impleaded as defendants in the civil suit. It has further been alleged that, since the defendant no. 1 gave confessional statement under section  164  of  the  Code  of  Criminal  Procedure  admitting  the  offence committed, so only the defendant no. 1 could be involved in the corruption alleged by the plaintiff-petitioner having no scope to implead the defendant nos. 3-16 in the suit. Basing on that application, the learned judge heard the said  defendants-herein  opposite  party  nos.  1-14  and  vide  impugned judgment and order dated 07.09.2019 allowed the application resulting in struck out their name from the plaint holding that, since in two quashment applications, the involvement of the defendant nos. 3-16 have not been found so they cannot be impleaded as defendants in the suit. It is at that stage, the plaintiff as petitioner came before this court and obtained instant rule and order of stay as has been stated herein above.

Mr.  Mohammed  Shafiqur  Rahman,  the  learned  Deputy  Attorney General by taking us to the impugned judgment and order and that of the application so filed under Order 1 rule 10(2) and 15 of the Code of Civil Procedure  and  the  document  appended  therewith  the  reviseional application, at the very outset submits that, since the suit is pending for taking evidence of the respective parties and the required documents have not yet been produced for proving involvement of the opposite parties in misappropriation of funds so striking out the name of the defendant nos. 3- 16 from the plaint finding that they have not misappropriated funds and grabing the government properties are totally erroneous and thereby the learned judge of the trial court has committed error of law in passing the impugned order which cannot be sustained in law.

The learned Deputy Attorney General goes on to submit that, the trial  court  committed  an  error  of  law  in  not  considering  the  settled proposition that, the decision of a criminal court is not relevant and binding upon a civil court in adjudication a civil suit and therefore the name of the defendant nos. 3-16 cannot be struck out from the plaint on the sole ground of quashing of the criminal proceedings initiated against the opposite party nos. 1-14.

The learned Deputy Attorney General wrapped up his submission contending that, there have been specific liabilities leveled against all the defendants including the defendant nos. 3-16 and hence they are the proper and necessary party whose presence the suit is required to be disposed of but that very legal point has clearly been sidetracked by the learned judge while passing the impugned order which cannot be sustained in law and prays for making the rule absolute.

On the contrary, Mr. Nur Mohammad Talukder, the learned counsel appearing for the opposite party no. 16 who was earlier granted permission to contest the rule, by filing an application for discharging the rule at the very outset submits that, since before filing of the application for striking out  the  name,  the  defendant  no.  7  died  so  the  instant  rule  cannot  be proceeded against all the defendants opposite parties though that very facts has not been disclosed while filing the instant revision and thus prays for discharging the rule.

We  have  considered  the  submission  so  advanced  by  the  learned Deputy Attorney General for the petitioner and that of the learned counsel for the opposite party no. 16. Together, we have also gone through the impugned judgment and order vis- -vis the application filed under Order 1

rule 10(2) read with section 151 of the Code of Civil Procedure through which the defendant nos. 3-16 herein the opposite party nos. 1-14 sought in striking out their name from the plaint. On going through the application we find that, only on the ground that, they have all been exonerated from the offence committed for misappropriation of money of the plaintiff by filing a quashment application, so they are not required to be impleaded as defendants in the suit and the learned judge while passing the impugned order has just given a go by to alleged assertion of the said defendants without considering the legal point that a criminal case only deals with the commission of offence when a civil suit, the court is to examine liability of the defendant as claimed by the plaintiff and that the nature of relief so sought in a civil suit is totally different from that of a criminal case having no scope to strike out the name of the defendant nos. 3-16 from a plaint of a  civil  suit  merely  considering  that  the  charge  brought  against  those defendant nos. 3-16 in a criminal case has been quashed. However, that very simple principle has not been taken into consideration by the learned judge of the trial court while striking out the name of the defendant nos. 3- 16 from the plaint. On top of that, since the provision so provided in Order 1 rule 10(2) of the Code of Civil Procedure does not at all attract in striking out the name of the defendants hence we don’t find any shred of legal substance in the impugned judgment and order which is liable to be struck down.

Accordingly, the rule is made absolute however without any order as to costs. 

The impugned judgment and order dated 07.09.2009 passed by the learned Joint District Judge, 1st court, Satkhira in Money Suit No. 02 of 1997 is thus set aside.

The order of stay grated at the time of issuance of the rule stands recalled and vacated.

The learned judge of the trial court is hereby directed to dispose of the suit as expeditiously as possible preferable within a period of 03(three) months from the date of receipt of the copy of this order by impleading all the defendants of the suit.

Let  a  copy  of  this  order  be  transmitted  to  the  court  concerned forthwith.

Md. Bashir Ullah, J:

I agree.

Kawsar /A.B.O