IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(Civil Revisional Jurisdiction)

Present:

Mr. Justice S.M. Masud Hossain Dolon

Civil Revision No. 1521 of 2019.

Md. Salim Uddin and others.

 …… Plaintiffs-Petitioners -Versus-

S.M. Habib Ullah and others.

.... Defendants-opposite parties

No one appears for the petitioners.

Mr. Niaz Murshed, Advocate.

……. For the opposite parties.

Heard on 12.05.2024, 13.05.2024 & Judgment on: 14.05.2024

This Rule was issued calling upon the opposite party No. 1-2 to show cause as to why the judgment and order dated 07.10.2018 passed by the learned Joint District Judge and Phoribash Court, Chattogram rejecting the application under order 26 Rule 9 of the Code of Civil Procedure for local investigation should not be set-aside and/or pass such other or further order or orders as to this court may seem fit and proper.

Short facts for disposal of this Rule, are that the petitioners as plaintiffs filed Other Class Suit No. 215 of 2006 before the learned Joint District Judge, 2nd Court and Phoribash Court, Chattogram with a prayer for declaration of title. During pendency of the suit plaintiff petitioners filed an application under Order 26 Rule 9 of the Code of Civil Procedure for local investigation.

The learned Joint District Judge and Phoribash Court, Chattogram after scrutinized relevant papers lying with record submitted by the parties in support of their respective claims rejected the application for local investigation against which the petitioners filed the instant Revisional application and obtained Rule.

No one appears for the petitioner when the matter is taken up for hearing.

Mr. Niaz Murshed the learned Advocate on behalf of the opposite parties submit that he supports the impugned order and contends that the learned Joint District Judge was perfectly justified in refusing the petitioners’ prayer for local investigation on the clear finding that it was not at all necessary in the case. He further submits that the learned Joint District Judge duly applied his judicial mind into the facts and circumstances of the case and the law bearing on the subject and rightly passed the impugned order. In this regard he referred the case of Safaruddin and other vs Fazlul Huq and other reported in 49 DLR(AD) 151, in the case of Nadera Banu vs Protiva

Rani Sen Gupta and others 55 DLR (HCD) 149, in the case of Matasim Ali Chowdhury vs Ismail, reported in 54 DLR (HCD) 105 and in the case of Maulana Abdul Motin and others vs Shah Alam Bhuiyan and others, reported in 41 DLR (HCD) 243.

In view of the above situation, I have heard the learned Advocate for the opposite party and also considered all other relevant paper appended thereto. I have perused the judgment and order passed by the learned Trial Court. On perusal of the record it appears that the case was originally filed by the plaintiff petitioners for declaration of title while the case was pending plaintiffs filed an application order 26 Rule 9 of the Code of Civil Procedure for local investigation. The learned Joint District Judge, after hearing the parties rejected the application for local investigation against which the instant Revisional application has been filed. On perusal of the impugned order it is appears that the learned Joint District Judge clearly found that there is no necessity for holding local investigation in the case land as the plaintiffs have an opportunity to present documentary evidence as to how R.S. Khatian are related in BC record. It is also appears that the contending parties have already adduced evidence in support of their respective cases.

The law on local investigation is well settled. The Court can under Order 26 Rule 9 of the Code of Civil Procedure issue an order for commission to hold local investigation when it deems it necessary for removing any ambiguity, confusing or uncertainty regarding the identity of the suit land or for elucidating any matter in dispute between the contending parties. The real object of a local investigation is not to collect evidence which can be taken in Court but to obtain evidence which from its very nature can only be on the spot. But in the present case the learned Joint District Judge clearly found that local investigation was unnecessary for deciding the suit and rejected the prayer for local investigation on sound and good reasons.

In recording decision learned Joint District Judge took into account the pendency of the suit since the year of 2006 and held that the suit is 18 years old and the proceeding of the suit would be prolonged in the event of allowing the application for local investigation which was unnecessary. In Nadera Benu vs Provati Rani Sen Gupta and others reported in 55 DLR 149 para 9 stated that “when the Trial Court does not find local investigation necessary for deciding a suit and rejected the prayer for local investigation on

assigning reasons a supervisor court cannot impose it on the trial court”. In the present case the identity of the suit land is not in dispute as Kazi Abdul Awal Zewar Rashid vs Dhaka Municipal Corporation and another, reported in 45 DLR 509.

I am satisfied that the learned Joint District Judge duly applied his judicial mind into the facts and circumstances of the case and the law bearing on the subject and passed the impugned order. I, therefore, do not find any illegality or legal infirmity in the impugned order occasioning failure of justice.

Thus, I find no merit in this Rule.

Accordingly, the Rule is discharged. The learned Joint District Judge and Phoribash Court, Chattogram is directed to conclude the trial expeditiously, preferably within 6(six) months after receiving the judgment.

The order of stay granted earlier by this court is hereby

vacated.

Send a copy of this judgment to the court concerned at once for information and necessary steps.

Asad/B.O