Present:

Mr. Justice Sheikh Abdul Awal

and

Mr. Justice Md. Mansur Alam

First Appeal No. 315 of 2020

In the  Matter of:

Memorandum of appeal from the original order.

-and-

In the Matter of:

Mohammad Ali Khan.

                               .....Plaintiff-appellant.

        -Versus-

National Bank Foundation and another

                   ...Defendant-respondents. Mr. Md. Mahabubur Rashid, Advocate

       ……. For the appellant.

Mr. Rais Uddin Ahmad, Advocate.

......For the respondent. Heard and Judgment on 22.10.2024.

Sheikh Abdul Awal, J:

This first appeal at the instance of the defendant-appellant is directed against the judgment and decree dated 01.09.2020 (decree  signed  on  06.09.2020)  passed  by  the  learned  Joint District Judge, Additional Court, Gazipur in Title Suit No. 206 of 2015 rejecting the plaint.

The relevant facts of the case in brief are that the appellant as plaintiff filed a suit in the Court of the learned Joint District Judge, Gazipur being Title Suit No. 576 of 2010 against the defendant-respondents praying the following reliefs:

After institution of the suit the plaintiff-appellant filed an application for amendment of the plaint and the said application for amendment of the plaint was allowed on 21.03.2019 and thereafter, the trial Court directed the plaintiff to file a fresh plaint  as  per  his  amendment  of  the  plaint.  Thereafter,  the plaintiff filed a copy of fresh plaint wrongly stating oral gift dated  01.08.2015  instead  of  01.08.2003  and  thereafter,  on 10.02.2020 the plaintiff-appellant filed another application for amendment  of  the  plaint as  to  date  of  oral  gift.   In  this background the defendants filed an application for rejection of the plaint stating that the suit is barred by section 17A of the Registration  Act  as  the  plaintiff filed  the  suit  challenging unregistered oral gift dated 01.08.2015.

The  learned  trial  Judge  upon  hearing  the  parties the impugned  judgment  and  order  dated  01.09.2020  allowed  the application  under  Order  VII,  Rule  11  of  the  Code  of  Civil Procedure rejecting the plaint.

Being  aggrieved  by  and  dissatisfied  with  the  aforesaid impugned judgment and order dated 01.09.2020, the plaintiff- appellant preferred this appeal.

Mr.  Md.  Mahabubur  Rashid,  the  learned  Advocate appearing for the plaintiff-appellant submits that the trial Court below without applying its judicial mind into the facts of the case  and  law  bearing  on  subject  most  illegally  allowed  the application for rejection of plaint although the plaintiff at first in his amendment application correctly stated that oral gift dated 01.08.2003  and  thereafter  as  per  direction  of  the  trial  Court while the plaintiff filed a fresh type copy of the  plaint as per his amendment wrongly stating oral gift dated 01.08.2015 instead of 01.08.2003  which  was  clearly  a  clerical  mistake  and  soon thereafter, on 10.02.2020 the plaintiff-appellant filed another application for amendment of the plaint as to date of oral gift but the trial Court below ignoring to such facts of the matter mechanically rejected the said application and abruptly allowed the prayer for rejection of the plaint on the ground that the suit is barred by section 17A of the Registration Act as the plaintiff filed  the  suit  challenging unregistered  oral  gift,   which occasioned a failure of justice. Finally, the Advocate submits that  in  the  facts  and  circumstances  of  the  case  unless  the impugned judgment and order is set-aside the innocent plaintiff- appellant will suffer irreparable loss and injury for no fault of his own.

Mr. Rais Uddin Ahmad, the learned Advocate appearing for the defendant-respondents, on the other hand, supports the impugned judgment and order, which was according to him just, correct and proper.

Having heard  the  learned  counsels  for  the  parties  and having gone through the materials on record, the only question that calls for our consideration in this appeal is whether the trial Court committed any error in finding that the suit is barred by section 17A of the Registration Act.

On a scrutiny of the record, it appears that in the main plaint the plaintiff did not mention any date as to oral gift.

Thereafter, while the suit was in progress the plaintiff filed an application for amendment of the plaint by incorporating the oral gift dated 01.08.2003 and the said prayer was allowed by the learned Joint District Judge and thereafter the learned trial Judge directed the plaintiff to file a fresh type copy of the plaint as per his amendment and thereafter, the plaintiff-appellant  as per order of the trial Court filed a fresh type copy of the plaint according to his amendment of the plaint wrongly stating oral gift dated 01.08.2015 instead on 01.08.2003. Soon thereafter, on 10.02.2020 the plaintiff-appellant filed another application for amendment of the plaint as to date of oral gift stating that-

This type of mistake appears to us bonafide in nature. In a suit  of  this  nature  the  trial  Court  concerned  ought  to  have allowed the subsequent application for amendment/ correction of the plaint as to oral gift dated 01.08.2003 instead of 01.08.2015.

The proposition of law is by now well settled that there is no legal scope to reject the plaint unless the plaint itself shows the want of cause of action for the suit or the suit being barred by any law. As we have already indicated that in this case at first the plaintiff correctly stated oral gift dated 01.08.2003 in the appellation for amendment of the plaint and it is on record that subsequently as per direction of the trial Court while the plaintiff filed a fresh type copy of the plaint according to his amendment wrongly stating oral gift dated 01.08.2015 instead of 01.08.2003. Mere omission or mistake cannot be a ground to reject the plaint. In exercising the power under Order VII,  Rule 11 of the Code the Court can look into the statements in the plaint alone. It cannot  consider  any  fact  stated  in  the  application  or  any document filed by the parties. To decide the truth of the matter evidence is necessary which can be available only in course of trial of the suit. Thus, we are constrained to hold that the reasons given  by  the  learned  Joint  District  Judge,  Additional  Court, Gazipur for passing the impugned judgment and order in favour of the defendants are not sustainable either in law or on facts.   

For the reasons stated above the judgment and order of the lower trial Court does not deserve to be sustained.

In  the  result,  the  appeal  is  allowed.  The  impugned judgment and decree dated 01.09.2020 passed by the learned Joint District Judge, Additional Court, Gazipur in Title Suit No. 206 of 2015 rejecting the plaint is set-aside. The application dated  10.02.2020  of  the  appellant,  Mohammad  Ali  Khan  is, accordingly, allowed.

The trial court concerned, will, however, expedite the trial of the suit. 

Let  a  copy  of  this  judgment  along  with  lower  Court’s record be sent down at once.

Md. Mansur Alam, J:

I agree.