IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISI inconvenience ON

(Civil Revisional Jurisdiction)

Present

Madam Justice Kashefa Hussain

Civil Revision No. 5757 of 2022    

Md. Abu Jahed

...........petitioner -Versus-

Md. Roshidul Islam and others

             ……… Opposite parties

Mr. Mohi Uddin Ahmed, Advocate

……… For the petitioner Mrs. Tasmia Prodhan, Advocate

…… For the Opposite Parties

Heard on: 01.08.2023, 08.08.2023, 20.08.2023, 21.08.2023 and Judgment on 29.08.2023

Rule was issued calling upon the opposite party No. 1 to show cause as to why the impugned Judgment and order dated 13.09.2022 passed by the District Judge, Panchagarh in Civil Revision No. 16 of 2022 dismissing the same and thereby affirming the order dated 16.06.2022 passed by the Senior Assistant Judge, Panchagarh in Election Tribunal Case No. 07 of 2021 rejecting the petition under Order 7 Rule 11 of the Code of Civil Procedure, 1908 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 instant opposite parties as applicant filed Election Tribunal Case No. 07 of 2021 in the court of Senior Assistant Judge, Panchagarh impleading the instant petitioners as opposite party in the Election Tribunal Case. During pendency of the case the instant petitioner as opposite party in the Election Tribunal Case filed an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 for rejection of plaint. The trial court upon hearing the application rejected the application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 by its judgment and order dated 16.06.2022. Being aggrieved by the judgment and order of the trial court the opposite party in the case (petitioner here) filed a Civil Revision being Civil Revision No. 16 of 2022 which was heard by the court of District Judge, Panchagarh. The revisional court upon hearing the civil revision however dismissed the civil revision by its judgment and order dated 13.09.2022 and thereby upheld the judgment and order passed earlier. Being aggrieved by the orders of the courts below the instant opposite party in the Election Tribunal Case as petitioner filed a Civil Revisionnal application before this division which is presently before this Bench for disposal.

Although the matter appeared in the list for several days when the matter was taken up for hearing none appeared for the petitioner. However learned advocate Mrs. Tasmia Prodhan appeared for the opposite parties.

Learned Advocate Mrs. Tasmia Prodhan for the opposite parties opposes the Rule. She submits that both courts below upon correct application of the law came upon correct finding and therefore those need no interference with in revision. She submits that the forum of Election Tribunal case has been

granted by a special enactment of statutory law being ÙÛ¡e£u plL¡l CE¢eue f¢loc BCe, 2009 read along with ÙÛ¡e£u plL¡l CE¢eue f¢loc ¢h¢dj¡m¡, 2010z She submits that being statutorily enacted to serve

a special purpose, therefore the forum of an application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of plaint is not applicable in an Election Tribunal Case. In support

of her submissions she draws upon Section 53 of the ¢ehÑ¡Qe ¢h¢dj¡m¡, 2010 and asserts that Section 53 has categorically classified the nature of a petition in an Election Tribunal case.

She submits that in an Election Tribunal Case the petition has been described as ¢ehÑ¡Qe£ clM¡Ù¹ which means application. She points that the term clM¡Ù¹ (application) is clearly distinguishable from the term plaint (B¢SÑ) as contemplated in the Code of Civil procedure. She submits that Section 53 followed by Section 54,

55 inter alia other provisions consistently use the word clM¡Ù¹ which denotes that it is an application. She submits that particularly Chapter-4 (4bÑ AdÉ¡u) ¢h¢dj¡m¡-2010 categorically lays down the procedure to be followed in the event any case in the Election Tribunal is filed. In support of her submissions she cites

a decision of our Apex Court in the case of Md. Afazuddin Fakir

Vs. M.H. Rahman & Ors reported in 21 BLT (AD) 2013 page 407. She points out that an analogy may be drawn from the principle in the 21 BLT (AD) case although the 21 BLT (AD) case arose out of a preemption case and not from an Election Tribunal case. She concludes her submissions upon assertion that therefore the courts below upon correct adjudication of the matter came upon their decision and those need no interference and the Rule bears no merits and ought to be discharged for ends of justice. 

I have heard the learned Advocates for the opposite parties, also perused the application and materials. Evidently the instant case is an Election Tribunal case filed in the proper forum. Such statutory right to file an Election Tribunal case in the proper forum has been granted to any aggrieved person under the provisions of ÙÛ¡e£u plL¡l (CE¢eue f¢loc) ¢h¢dj¡m¡, 2010 chapter- 4. To properly assess the law I have examined chapter-4 of the bidhimala (¢h¢dj¡m¡) inter alia Section 53, 54, 55, 56 including other sections. It is significantly noticed that all these provisions consistently use the word and describe the main application as ¢ehÑ¡Qe£ clM¡Ù¹z The literal meaning of clM¡Ù¹ is application.

Whereas in a regular civil suit filed under the Code of Civil Procedure, 1908 the initial petition is called a plaint (B¢SÑ). Therefore it is evident that a clM¡Ù¹ in a Election Tribunal case is clearly distinguishable from a plaint B¢SÑ in a regular civil suit filed in a typical civil court. Order 7 Rule 11 of the Code of Civil Procedure deals with the procedure where a defendant in a civil suit has been granted the right to file an application under Order VII Rule XI of the Code for rejection of plaint. Therefore it is evident that the word ‘plaint’ used in Order 7 Rule 11 of the Code of Civil Procedure denote a plaint within the meaning of a regular civil suit filed in a civil court. Whereas a ¢ehÑ¡Qe£ clM¡Ù¹ filed in an Election Tribunal is clearly an (clM¡Ù¹) application and

it is not a plaint within the meaning of Order 7 Rule 11 of the

Code of Civil Procedure, 1908. As stated above a clM¡Ù¹ within

the meaning of the ¢ehÑ¡Qe ¢h¢dj¡m¡, 2010 is clearly distinguishable

from a ‘plaint’ within the meaning of a regular civil suit.

Such being the position of the law, I am of the considered view that forum of rejection of plaint under Order 7 Rule 11 of the Code cannot be availed in an Election Tribunal case under provisions of Chapter-4 of the ¢ehÑ¡Qe ¢h¢dj¡m¡, 2010.

The ÙÛ¡e£u plL¡l (CE¢eue f¢loc) BCe, 2009read along with ÙÛ¡e£u plL¡l (CE¢eue f¢loc) ¢ehÑ¡Qe ¢h¢dj¡m¡, 2010 are special statutory enactments and must be interpreted as per the clear language of the law and no inference may be drawn upon any presumption and assumption. Therefore I am of the considered view that in the instant case the courts correctly rejected the application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of plaint.

I have also examined the judgment cited by the learned advocate for the opposite party in the case of Md. Afazuddin Fakir Vs. M.H. Rahman & Ors reported in 21 BLT (AD) 2013 page-407. The relevant portion is reproduced here under:

“the application for preemption under section 96 of the Act is mere a proceeding which cannot be denoted as plaint within the ambit of Order 7, of the said Code although it has got all the Trappings of a plaint- a proceeding under Section 96 of the said Act pending before a civil court not being a plaint applicability of Order 7 Rule 11 of the Code would not be available to reject the same.”

Upon perusal of the principle, I am inclined to draw an analogy with the case I am presently dealing with. Although the 21 BLT (AD) 2013 case arise out of a preemption case under section 96 of the SAT Act, but however an analogy may be drawn from, since the basic principle behind the meaning of a plaint (B¢SÑ) in that case and the case presently here are the same.  

Under the facts and circumstances and relying on the concurrent findings of the judgment of the courts below, I do not find any merits in the Rule.

In the result, the Rule is discharged without any order as to costs.

Communicate the order at once.

Shokat (B.O)