District: Sirajgonj

In the Supreme Court of Bangladesh

High Court Division

(Civil Revisional Jurisdiction)

Present:

Mr. Justice Md. Zakir Hossain

Civil Revision No. 3933 of 2022

In the matter of:

An application under section 115(1) of the Code of Civil Procedure.

-And-

In the matter of:

Most. Mariam Bibi and others

......... Petitioners -Versus-

Most. Rowshan Ara Haque and others

....... Opposite Parties

Mr. Jahirul Haque Kislu, Advocate

.......For the petitioners

Mr. Md. Zakir Hossain, Advocate

...... For the opposite parties

Heard On: 01.11.2023 Judgment On: 25.02.2024

Md. Zakir Hossain, J:

At the instance of the petitioners, the Rule was issued with the following terms:

“Let a Rule be issued calling upon the opposite party

Nos. 1-7 to show cause as to why the judgment and

order dated 19.05.2022 passed by the learned Joint

District Judge, 3rd Court, Sirajgonj in Other Class

Appeal No. 67 of 2018 rejecting the application under

Order 1 Rule 10 of the Code of Civil Procedure shall

not be set aside and/or such other or further order or

orders passed as to this Court may seem fit and proper.”

Facts leading to the issuance of the Rule are  inter alia that the

opposite party Nos. 5-6 being the plaintiffs instituted Other Class Suit No. 212 of 2013 before the Court of the learned Senior Assistant Judge, Ullapara, Sirajgonj for declaration of title in the land as mentioned in the schedule to the plaint. The defendant Nos. 6, 7 & 8 entered appearance in the suit and contested the suit by filing written statement and denied the allegation as set out in the plaint. After conclusion of the trial, the learned Senior Assistant Judge was pleased to decree the suit. Being aggrieved by and highly dissatisfied with the judgment and decree of the learned Senior Assistant Judge, the contested defendant Nos. 6, 7 & 8 preferred Other Class Appeal No. 67 of 2018 before the Court of the learned District Judge Sirajgonj. After admitting the appeal, the learned District Judge transmitted the record of the same to the learned Joint District Judge, 3rd Court, Sirajganj for disposal. In the aforesaid appeal, the instant petitioner filed an application under Order 1 Rule 10 of the Code of Civil Procedure, 1908 to be added as party. Upon hearing, the learned Joint District Judge was pleased to reject the said petition. Challenging the legality and propriety of the judgment and order of the learned Joint District Judge, the petitioners moved this Court and obtained the Rule.

Heard the submissions advanced by the learned Advocate of the parties at length and perused the materials on record with care and attention and seriousness as they deserve. The convoluted question of law embroiled in this case has meticulously been waded through.

In the judgment of the trial Court the learned Assistant Judge held:

“weev`xcÿ `vex K‡ib AvwRRyj nK ZvjyK vi Gm.G. 157

LwZqv‡bi mv‡eK 806 `v‡Mi DËivs‡ki 15 kZK f~wg gq`vb Avjxi mv‡_ 5616 bs wewbgq `wjj g~‡j n¯ÍvšÍi K‡ib| D³

5616 bs `wjj (cÖ`tK) wn‡m‡e wPwýZ n‡q‡Q| †h‡nZz AvwRRyj nK bvwjkx `v‡M Zvi 15 kZK n¯ÍvšÍi K‡i‡Qb, bvwjkx `v‡M

Zvi †Kvb ¯^Z¡ †bB Ges GKB Kvi‡b 6/7/8 bs weev`xi AÎ

†gvKÏgvq cÖwZØÜxZvi †Kvb †hŠw³K Kvib †bB| wKš‘ AvwRRyj n‡Ki bv‡g Avi.Gm 68 LwZqv‡b †iKW© n‡q‡Q hv weev`xc‡ÿi ¯^xK…Z g‡ZB ågvZ¥K Ges 68 LwZqv‡b gq`vb Avjxi bv‡g

†iKW© nIqv DwPr wQj|”

The petitioners in his petition to be added as party has clearly depicted

under paragraph-3 contending that in respect of 15 decimals of land appertaining to Kha-schedule to the plaint, the petitioner became owners and have possessing the same for more than 15 years. The learned Advocate of the opposite parties submits that since the land of the petitioners are admitted and undisputed they are neither necessary party nor proper party. Appeal is continuation of the suit. Appellate Court shall have power of the trial Court in addition to power vested upon it under Section 107(1) of the CPC. In an appropriate case, Court may add or strike out the name of any person at any stage of the proceedings including at the appellate stage.           

It appears from the record that the petitioner’s predecessor; Moydan Ali obtained 15 decimals of land from Azizul Haque Talukder appertaining to khatian No. 157, plot No. 806 by dint of a registered exchanged deed which was duly acted upon. The contention of the petitioner has not been denied either by the plaintiff or the defendant of the original suit. But the learned Judge of the Appellate Court without considering the vital aspect and without considering the facts delineated in the application to be added as party to the aforesaid appeal most illegally rejected the petition.

My penultimate conclusion is that, the petitioners have got interest in the suit land. Therefore, the contention of the petitioners that they are at least proper party cannot be rebuffed. Moreover, their presence cannot be ignored in any view of the matter. Hence, I find substance in the Rule. The Rule deserves to be made absolute.  

In the result, the Rule is made absolute; however, without passing any order as to costs and accordingly, the impugned judgment and order passed by the learned Joint District Judge, third Court Sirajgonj is hereby set aside. The learned Joint District Judge is directed to dispose of the Other Class Appeal No. 67 of 2018 within 04 (four) months from the date of receipt of the copy of this judgment on merit positively. No unnecessary adjournment petition shall be entertained from either side.

Let a copy of the judgment be transmitted to the Courts below at once.

....................................................

 (Md. Zakir Hossain, J)

Po. Naser