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Microsoft Word - C.R. No. 1633 of 2024

1

IN THE SUPREME COURT OF BANGLADESH

  HIGH COURT DIVISION

       (CIVIL REVISIONAL JURISDICTION)

Civil Revision No. 1633 of 2024

In the matter of:

Ruhul Amin and others.

...Petitioners.

-Vs-

Md. Mamudali Sheikh being dead his legal heirs; 1.  Md. Masud Ali Sheikh and others.

....Opposite parties.


  Present

         Mr. Justice Mamnoon Rahman


Mr. Md. Nurul Amin, Sr. Adv. with

Mr. Md. Mohammad Mozibur Rahman, Adv. Mr. Tanveer Awal, Adv.

…For the petitioners.

Mr. Zaman Akter, Adv.

…For the opposite party Nos. 1-13.


1

Heard on: 20.01.2025, 21.01.2025 & 17.02.2025 And

Judgment on: The 26th February, 2025

Rule was issued calling upon the opposite party Nos. 1-13 to show cause as to why the impugned judgment and order dated 27.04.2022 passed by the learned District Judge, Kushtia in Civil Revision No. 37 of 2019 dismissing the civil revision and thereby affirming the judgment and order dated 12.09.2019 passed by the learned Joint District Judge, 1st court, Kushtia in Title Suit No. 37 of 2013 rejecting the application under Order 7 Rule 11 of the Civil Procedure Code, should not be set aside and/or pass such other or further order or orders as to this court may seem fit and proper.

The short facts relevant for the disposal of the instant rule, is that, the predecessor of the opposite party Nos. 1-7 and opposite party Nos. 8-

13 as plaintiffs instituted Title Suit No. 37 of 2013 in the court of Joint District Judge, 4th Court, Kushtia impleading the petitioner and others as defendants for declaration of title by way of adverse possession. The suit property  as  claimed  by  the  present  plaintiff  measuring  an  area  .36 decimals of land situated in C.S. Plot No. 3999 appertaining to C.S. Khatian No. 877 as claimed by the plaintiffs. The defendant Nos. 1-7 entered appearance and contested the suit by filing written statement denying all the material allegations made in the plaint. Thereafter, the defendant pressed an application under Order 7 rule 11 read with section 151 of the CPC for rejection of plaint on question of resjudicata. The trial  court  after  hearing  the  parties  and  considering  the  facts  and circumstances vide judgment and order rejected the application. Being aggrieved  the  petitioner  moved  before  the  learned  District  Judge, Kushtia by way of Civil Revision No. 637 of 2019 and eventually the same was heard and disposed of by the learned District Judge, Kushtia who vide the judgment and order discharged the revision and thereby affirmed  the  judgment  and  order  passed  by  the  trial  court.  Being aggrieved by and dissatisfied with the same the petitioners moved before this court and obtained the present rule.

The  opposite  party  entered  appearance  in  the  instant  rule  and contested the same by filing counter-affidavit.

Mr. Md. Nurul Amin, the learned senior counsel appearing on behalf  of  the  petitioners  submits  that  the  trial  court  as  well  as  the revisional  court  without  applying  their  judicial  mind  and  without considering the facts and circumstances as well as the very provisions of law, most illegally and in an arbitrary manner passed the impugned judgment and order which requires interference by this court. He submits that this is a fit case for interference under Order 7 rule 11 of the Civil Procedure Code, 1908 as the matter has already been settled up to the apex court to the country. He further submits that admittedly the present petitioner filed a suit impleading the present opposite party as defendants and lost in both the trial court as well as appellate court but ultimately they succeeded in revision before the High Court Division as well as on appeal and review before their lordships of our apex court. He submits that it is crystal clear from the averments made in the present plaint as well as the previous plaint that the later suit was filed by the same parties who were party in the previous suit and for the self-same property in question. The learned counsel submits that in the present case in hand the petitioner in the earlier suit claimed .36 decimals of land in Dag No. 3999 corresponding to C.S. Khatian No. 877 and at the time of filing of the  previous  suit  the  same  was  for  simple  declaration  of  title  but subsequently they made amendment so far it relates to .9 decimals of land as they were dispossessed during pendency of the suit. He further submits that it is very much clear from the language of their lordships of the High Court Division while making the rule absolute to the effect that the High Court Division declared title of the plaintiffs in .36 decimals of land including direction of recovery of possession. He also submits that their lordships of our apex court in appeal as well as review affirmed the

Mr. Zaman Akter, the learned counsel appearing on behalf of the opposite party vehemently opposes the rule. He submits that both the courts  below  on proper  appreciation  of  the  facts  and  circumstances, materials on record as well as provisions of law has rightly rejected the prayer  for  rejection  of  plaint  and  thus  the  same  is  requires  no interference by this court. The learned counsel submits that the question

of resjudicata is a mixed question of fact and law which can only be decided by adducing evidence both oral and documentary. He submit that in such circumstances it is wise to frame an specific Issue regarding the question of resjudicata and the trial court if so found can dismiss the suit on question of resjudicata. The learned counsel placed the counter- affidavit  as  well  as  necessary  papers and documents  and drawn  my attention to the decision of the lower appellate court of the previous suit wherein  the  lower  appellate  court  disbelieved  with  the  case  of  the present petitioner in every possible way. By referring the same as well as the numerous applications for amendment made by the present petitioner in the previous suit he submits that the same are not even specified, vague and not enforceable in the eye of law. Hence, the learned counsel prays for discharging the rule with cost.

I have heard the learned Advocates for the petitioners as well as opposite  parties.  I  have  perused  the  impugned  judgment  and  order passed  by  the  revisional  court  as  well  as  the  trial  court,  revisional application,  grounds  taken  thereon  as  well  as  necessary  papers  and documents annexed herewith, counter-affidavit, provisions of law and the decisions as referred to.

On perusal of the same, it transpires that admittedly a suit is pending in the court of Joint District Judge, 4th court, Kushtia being Title Suit No. 37 of 2013. It transpires that the present petitioners who are the defendants in the suit entered appearance by filing power and contested the same. Subsequently, the present petitioners pressed an application

under Order 7 rule 11 read with section 151 of the Civil Procedure Code, 1908  for  rejection  of  plaint.  The  main  contention  of  the  present petitioners in the said application are that the present suit is barred by resjudicata as because the parties to the present suit instituted previous suit being Title Suit No. 253 of 1986 re-numbered as Title Suit No. 82 of 1990 relates to the self-same property which attracts C.S. Plot No. 3999 corresponding to C.S. Khatian No. 877 to the extent of .36 decimals of land and though both the trial court and lower appellate court dismissed the suits. But ultimately on revision the High Court Division made the rule absolute by declaring right and title of the present petitioners in the suit property along with an order of recovery of possession. Secondly, the matter travelled up to our apex court by way of appeal and review wherein their lordships affirmed the judgment and order passed by the High Court Division. Thirdly, one of the party filed a suit claiming .3 decimals of land arising out of .36 decimals of land in the said Khatian wherein an application was pressed under Order 7 rule 11 of the Civil Procedure  Code,  1908  though  the  trial  court  rejected  the  same.  But ultimately  the  lower  appellate  court  rejected  the  plaint  and  also  on revision the High Court Division discharged the rule and affirmed the rejection of plaint by the lower appellate court.

It is admitted that a plaint can be rejected under Order 7 rule 11 of the Civil Procedure Code, 1908 if the parties can show fulfillment of the conditions stipulated thereon for such rejection. The court of law while considering such application shall consider the plaint itself and on the basis of the same if the trial court is satisfied that a plaint can be rejected on fulfillment of the conditions stipulated in the provisions of law then the  court  of  law  has  the  authority  to  reject  the  plaint.  Admittedly, resjudicata is a ground for which a plaint can be rejected. However, in numerous decisions this court as well as our apex court also came to a conclusion that resjudicata being an issue relates to the mixed question of fact and law which requires further evidence to establish the question of resjudicata. Most of the cases the court of law discourages rejection of plaint fully on the question of resjudicata without further investigation. Obviously, in exceptional cases it cannot be said that the court of law has no authority to reject a plaint on question of resjudicata. Order 7 rule 11 of the Civil Procedure Code, 1908 has given ample power to the court of law to see whether the continuation of the suit is at all necessary if the party can show the fulfillment of any one or other conditions.

In the present case in  hand the petitioner  no doubt  raises  the question of resjudicata. So, it transpires from the papers and documents that the party in the present suit instituted Title Suit No. 253 of 1986 which was re-numbered as Title Suit No. 82 of 1990  relates to .36 decimals of land appertaining to C.S. Khatian No. 877 and C.S. Plot No. 3999. So, it is very much clear from the language of the plaint and other aspects that the said Khatian and Dag contained .36 decimals of land. Admittedly,  in  the  previous  suit  the  plaintiff  prayed  for  simple declaration of title. But on perusal of the counter-affidavit, it transpires that since the petitioner-plaintiffs were dispossessed from 9 decimals of land they made application for amendment for recovery of possession of 9 decimals of land. I have also perused the judgment and order passed by the High Court Division in Civil Revision No. 885 of 2004 and also the judgment and decree passed by both the courts below in the previous suits.

On meticulous perusal of the judgment and order passed by the High Court Division, it transpires that the High Court Division after thread bare discussion of the facts and circumstances, evidence both oral and documentary made the rule absolute with the following directions;

“The Title Suit No. 82 of 1990 is decreed on contest without any order as to cost. The title of the plaintiff in schedule Ka to the plaint are declared and the defendants are directed to handover vacant possession in schedule Kha land to the plaintiffs within 30(thirty) days from date, failing which the plaintiffs  would  be  at  liberty  to  take  recovery  of  khash

possession through process of court”.

So, it transpires that the High Court Division not only declared the title  of  the  petitioners  in  .36  decimals  of  land  but  also  decreed  for recovery of possession and made a direction for recovery of possession so far it relates to 9 decimals of land arising out of .36 decimals of land. On perusal of the order passed by their lordships of our apex court in Civil Petition for Leave to Appeal No. 725 of 2009 it transpires that their lordships after detailed discussions came to a conclusion in the following language;

“Considering the materials and evidence on record and the depositions and the discussions made in the judgment by the High Court Division, we are of the view that the High Court Division on proper consideration of the materials on record made the rule absolute decreeing the suit and hence no interference in the impugned judgment and order is called for”.

So, it transpires that their lordships affirmed the judgment and

order passed by the High Court Division. It further transpires that a review petition was filed by the present opposite party but their lordships dismissed the same and affirmed theirs lordships own judgment and order passed in Civil Petition for Leave to Appeal No. 725 of 2009. So, it is apparent not from any materials on record but from the judgment of the High Court Division as well as our apex court. The High Court Division as well as our apex court decreed the suit in favour of the petitioners in the previous suit so far it relates to .36 decimals of land as well as recovery of 9 decimals within that .36 decimals of land. When there is a specific decision of the superior court no further investigation is required to settle the issue in question. Admittedly the learned counsel for the opposite party submits that the courts below in the present suit passed an order from framing specific Issue on resjudicata and would be wise to settle the matter giving opportunity to the party to place their case. But in the present case in hand it has been mentioned earlier that resjudicata is very much clear from the papers and documents annexed herewith, namely the judgment and order passed by the High Court Division in civil revision and the order passed by their lordships of our apex court in Civil Petition for Leave to Appeal and the Review. Apart from that it is also crystal clear that another suit was also barred under Order 7 rule 11 of the Civil Procedure Code, 1908 and the same was affirmed up to the High Court Division in civil revision. It has been mentioned earlier that though the learned counsel for the opposite party raises  the  question  of  recovery  of  possession  and  other  aspects  but considering the plaint of the previous case and the present case side by side it transpires that the claim of the present suit so far it relates to 27 decimals of land in the southern side of the plot in question though the opposite party contended the question of recovery of possession but they are not claiming the entire suit land and especially the disputed land so far it relates to 9 decimals of land in the northern side. The decision reported in 61 DLR (2009) 502 it transpires that the court of law has the ample authority to see the legality and propriety of a proceeding of the case and consider the same in an application under Order 7 rule 11 of the Civil  Procedure  Code,  1908.  Also  in  the  decision  reported  in  11 BLT(2003) 379 it transpires that the court has the authority to dispose of any issue on the basis of the plaint and which needs no evidence either oral and documentary to establish the factum of dispossession for the law to take its own course. I do not find any reason to disagree with the decisions as referred by the learned counsel for the petitioners. It has been mentioned earlier that in an appropriate case the court of law can reject a plaint exercising the power conferred under Order 7 rule 11 of the Civil Procedure Code, 1908.

Order 7 rule 11 of the Civil Procedure Code, 1908 prescribes certain conditions which required to be fulfilled for rejection of a plaint. Apart from the conditions stipulated in the provision of law, namely Order 7 rule 11 of the Civil Procedure Code, 1908 a plaint can also be rejected exercising the power conferred under section 151 of the Civil Procedure Code, 1908 when it is crystal clear that the proceeding is a fruitless  litigation.  In  the  decision  reported  in  53  DLR(AD)12  their lordships of our apex court came to a clear conclusion that it is well settled proposition of law is that where a plaint cannot be rejected under Order 7 rule 11 of the Civil Procedure Code, 1908 the court may invoke its inherent jurisdiction and reject the plaint taking recourse to section 151  of  the  Civil  Procedure  Code,  1908.  In  the  said  judgment  their lordships  clearly  gave  emphasized  regarding  the  maintainability  and proceeding of the suit and came to a conclusion that a fruitless litigation should be buried at its very inception. In the present case in hand there is no doubt or any scope to deny that the property so far it relates to .36 decimals of land appertaining to C.S. Khatian No. 877 corresponding to C.S. Plot No. 3999 has already been settled up to their lordships of our apex court. Other extenuating circumstances or grounds as cited by the learned counsel for the opposite party cannot stop the decisions of the court in rejecting the plaint as because it is crystal clear in view of the decisions made up to our apex court the present proceeding is nothing but a fruitless litigation. Hence, I find substance in the instant rule.

Accordingly,  the  instant  rule  is  made  absolute.  The  impugned judgment and order passed by the courts below are hereby set aside and the plaint be rejected.

Communicate the order at once.

(Mamnoon Rahman,J:)

Emdad.B.O.