IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(Civil Appellate Jurisdiction)

First Miscellaneous Appeal No. 350 of 2023

With

Civil Revision No. 3139 of 2024

With

(Civil Rule No. 942 (FM) of 2023)

In the matter of: Md. Salim 

… Appellant-petitioner

             -Versus-

Alhaj Shamsul Haque Chowdhury and others 

      …Respondents-opposite party

Mr. M. Sayed Ahmed, senior Advocate with

Mr. Md. Tajul Islam with

Mr. Zillur Rahman with

Mr. Md. Abdullah Al mamun with

Mr. Md. Saiful Bakar Mojumder and

Mr. Ferdous Al Mahmud, Advocates 

…For the appellant-petitioner None appears  

            ....For the respondents-opposite parties Heard and Judgment on 25.08.2024

Present:

Mr. Justice Md. Mozibur Rahman Miah

And

Mr. Justice Md. Bashir Ullah

Md. Mozibur Rahman Miah, J.

Since the point of law and facts so figured in civil revision no. 3139 of 2024 and that of the First Miscellaneous Appeal No. 350 of 2023 vis-a-vis the Civil Rule No. 942 (FM) of 2023 all are intertwined those have been heard together and are being disposed of by this single judgment.

The salient facts leading to issuance of the rule in Civil Revision

No. 3139 of 2024 are:

The  opposite  party  of  in  the  civil  revision  and  that  of  the

respondent in First Miscellaneous Appeal as plaintiff originally filed a

suit being Money Suit No. 4 of 2021 claiming compensation to the tune

of taka 500,00,000.00 seeking following reliefs:

12.    h¡c£l Ae¤L¥­m ¢hh¡c£l ¢hl¦­Ü 1-11ew ¢hh¡c£ La«ÑL afn£­m

E­õ¢Ma pwh¡c f­œ fËL¡¢na ¢n­l¡e¡­j hš²hÉpj§q ®hBCe£, i¨u¡, ¢i¢šq£e, c¡¢m¢mL fËj¡e hÉ¢a­l­M Hhw av à¡l¡ p¡j¡¢SL, l¡S®~e¢aL AwN­e h¡c£l j¡eq¡e£ n¡l£¢lL J j¡e¢pL L­øl L¡­kÑÉ r¢a p¡¢da qCu¡­R av j­jÑ ¢pÜ¡­¿¹ Efe£a qCu¡ afn£­ml c¡h£L«a 500,00,00,000/- (f¡Qna ®L¡¢V) V¡L¡l r¢af§l­Zl ¢hh¡c£N­el ¢hl¦­Ü ¢Xœ²£ qu z

13. ®j¡LŸj¡l hÉu ¢hOÀL¡l£ ¢hh¡c£N­el ¢hl¦­Ü ¢Xœ²£ qu z
    14.    ®j¡LŸj¡l AhØq¡j­a Bc¡ma h¡c£­L AeÉ¡eÉ ®k ®k

fË¢aL¡l ®cJu¡ pwNa j­e L­le a¡q¡ ®cJu¡l B­cn qu z 

After filing of the suit, the defendant no. 7 herein the petitioner

appellant filed written statement denying all the material statement so

made in the plaint and ultimately prayed for dismissing the suit. Soon

after filing of the written statement by the defendant no. 7, the plaintiff- respondent-opposite party on 30.06.2022 filed an application before the

trial court asking the defendant no. 7 to file the documents and the deeds

in  support  of  his  written  statement.  On  that  very  date,  the  said

application was taken up for hearing and the learned judge of the trial

court allowed the same vide order being No. 9 dated 30.06.2022 and

directed the defendant no. 7 to submit the documents and deeds in

support of the written statement stating “h¡c£l B¢ea 7 ew ¢hh¡c£l L¡NSfœ c¢mm c¡¢M­ml c¡M¡Øa jÇS¤l Ll¡ q­m¡” and fixed 08.08.2022 for framing issue

as well as filing the documents and the deeds as per the prayer so made

by the plaintiff-respondent. It is at that stage, the defendant no. 7 as petitioner came before this court and obtained rule and order of stay by filing Civil Revision No. 3139 of 2024. Since the defendant no. 7 did not

file documents as well as the deeds as sought by the plaintiff-respondent,

the written statement filed by the defendant no. 7 was ultimately rejected 03.07.2023  vide order no. 18. 

Challenging  that  order,  the  defendant  no.  7  as  appellant  then preferred an appeal being First Miscellaneous appeal No. 350 of 2023. After preferring the appeal, the defendant no. 7-appellant then filed an application  for  stay  of  the  operation  of  the  said  order  passed  dated 03.07.2023 on which rule was issued on 06.11.2023 and operation of the

said order was stayed for 1 month which was subsequently extended from time to time that eventually gave rise to Civil Rule No. 942(FM)

of 2023.

Mr.  Md.  Tajul  Islam,  the  learned  counsel  appearing  for  the appellant-petitioner upon taking us to the civil revisional application as

well as the memo of First Miscellaneous Appeal No. 350 of 2023 at the very outset submits that, under the provision of Order 11 rule 14 of the Code of Civil Procedure, it is the absolute desecration of the court to ask

for production of the documents if it feels necessary having no scope to direct the defendant to do so on the basis of any application filed by any party to a suit.

The learned counsel further contends that, though the application filed by the plaintiff-respondent seeking production of documents as well  as  the  deeds  by  the  respondent  no.  7  but  there  has  been  no particulars in the application as to which documents or deeds will have to be filed by the defendant no. 7 in support of his written statement in absence  of  which,  the  application  filed  by  the  plaintiff  is  totally preposterous having no scope to consider the same by the trial court. The learned counsel by referring to the appendix so laid out in the Code of Civil Procedure in particular form 7 also contends that, in the said form it has clearly been outlined the format as to how a party to a suit will be asked to produce document for inspection but that very provision has not been complied with. The learned counsel then by taking us to judgment and order impugned in the Civil Revision (order No. 9 dated 03.06.2022) also contends that, that order has been passed in a very slipshod and casual manner which clearly exemplifies non application of the judicial mind of the learned judge of the trial court as the learned judge has just given a go by to the application filed by the plaintiff seeking to produce documents and deeds.

The learned counsel lastly contends that, since the order being no. 9 dated 30.06.2022 is devoid of any legal basis so the subsequent order dated 03.07.2023 rejecting the written statement filed by the defendant no. 7- petitioner-appellant also bears no substance and then finally prays for making the rule absolute as well as allowing the appeal.

Though in the First Miscellaneous Appeal as well as in the Civil Rule  No.  942(FM)  of  2023  the  plaintiff-respondent  No.  1  entered appearance but none appeared when all those matters ware taken up for hearing even though it has been appearing in the list with the name of the learned counsel for the parties.

Be that as it may, we have considered the submission so advanced by  the  learned  counsel  for  the  petitioner-appellant  and  perused  the revisional  application  and  that  of  the  memo  of  appeal  in  First Miscellaneous  Appeal.  We  have  also  carefully  gone  through  the provision so have been enshrined in Order 11 Rule 14 of the Code of Civil  Procedure  and  the  appendix  of  the  code  in  particular,  form  7 thereof. Aside from that, we have also gone through the orders being order Nos. 9 and 18 impugned in the Civil Revision and appeal passed in Money  Suit  No.  7  of  2021.  Together,  we  have  also  perused  the application  filed  by  the  plaintiff-respondent  no.  1  dated  30.06.2022 asking  the  defendant  no.  7  to  produce  documents  and  the  deeds (Annexed as annexure ‘C’ to the Civil Rule No. 942 (FM) of 2023). On going  through  the  said  application,  we  don’t  find  that,  the  plaintiff prayed for any particular document to be produced by the defendant no. 7 in support of his written statement when the learned judge of the trial court simply basing on that application and without bothering to consult the respective provision of law passed the mechanical order allowing the application. Since the order dated 31.06.2022 which was impugned in the Civil Revision can in way be sustained as that very order has not been passed complying with the provision of Order 11 Rule 14 of the Code of Civil Procedure so for obvious reason the same can not be sustained. In the same vein, since the order dated 30.06.2022 is not tenable  in  law  so  invariably  the  subsequent  order  dated  03.07.2023 through which the written statement so filed by the defendant-petitioner- appellant No. 7 was rejected does not stand resulting in, the said order is thus set aside.

Resultantly, the rule in Civil Revision No. 3139 of 2024 is made absolute and that of the appeal being First Miscellaneous Appeal No. 350 of 2023is allowed.

Accordingly, the order No. 9 dated 30.06.2022 as well as order no. 18 dated 03.07.2023 passed in Money Suit No. 4 of 2021 is hereby set aside.

Since we allow the appeal so the connected rule being Civil Rule No. 942(FM) of 2023 is hereby disposed of and stay passed thereof is vacated enabling the appellant-petitioner to contest the suit. 

However, the learned Joint District Judge, Potia, Chattogram is hereby directed to restore the written statement filed by the defendant no. 7 and to dispose of the suit in accordance with law.

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

Md. Bashir Ullah, J.   

 I agree.

Kawsar/A.B.O.