IN THE SUPREME COURT OF BANGLADESH           HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

      Present:

Mr. Justice S M Kuddus Zaman

FIRST MISCELLANEOUS APPEAL No.39 of  2023 With

CIVIL RULE NO.712(FM) of 2022

Rahima Khatun

... Appellant

-Versus-

Chattogram Port Authority, Chattogram and others

... Respondents

Mr. S. M. Jahangir Alam with

Mr. Md. Harunur Rashid, Advocates

... For the Appellant.

Mr. K.S. Salah Uddin Ahmed with

... For the respondent Nos.2.

Heard and Judgment on 08.12.2024.

The  above  numbered  First  Miscellaneous  Appeal  has  been preferred by the plaintiff against the order dated 10.03.2022 rejecting the application for temporary injunction under Order 39 Rule 1 of the Code  of  Civil  Procedure  passed  by  the  learned  Additional  District Judge, 1st Court, Chatogram, in Other Appeal No.362 of 2017 arising out of judgment and decree dated 28.03.2017 passed by the learned Senior Assistant Judge, 1st Court, Chattogram in Other Suit No.66 of 2015.

In the instant First Miscellaneous Appeal the appellant filed an application for an order of injunction and on that application the above mentioned Civil Rule No.712(FM) of 2022 was issued.

Since the instant First Miscellaneous Appeal and the Civil Rules relates to same matter those were heard together and being disposed of by this single judgment.

Mr. S. M. Jahangir Alam,  learned Advocate for the appellant frankly concedes that in above appeal and in this petition under Order 39 Rule 1 of the Code of Civil Procedure the disputed land has not been properly  described  and  the  same  is  not  easily  identifiable  and  the quantity of the disputed land has been mentioned by kara and gonda which  is  obsolete  and  not  easily  intelligible.  In  view  of  above deficiencies he is not willing to press this appeal and the petition under Order 39 Rule 1 of the Code of Civil Procedure for hearing and submits that the appeal and above petition may be dismissed.

On  the  other  hand  Mr.  K.  S.  Salah  Uddin  Ahmned,  learned Advocate for the respondent No.2 submits that the appellant filed this petition under Order 39 Rule 1 of the Code of Civil Procedure for an order of temporary injunction in Other Class Appeal No.362 of 2017 which the learned Judge of the Court of Appeal below had rejected. Challenging the legality and propriety of the above judgment and order of the Court of Appeal below above petitioner has moved to this Court and obtained this Rule. But in the meantime above Appellate Court below has dismissed above appeal under Order 41 Rule 17(1) of the Code of Civil Procedure for not taking appropriate steps. Since above appeal has already been dismissed this First Miscellaneous Appeal has become infructous and the same is liable to be dismissed.

I have considered above submissions of the learned Advocates for the respective parties and carefully examined all materials on record.

I hold that Other Appeal No.362 of 2017 having already been dismissed  this  miscellaneous  appeal  arising  out  of  above  appeal challenging the legality of an order passed by the learned Judge of the Court of Appeal below has become infructous.

Moreover, the learned Advocate for the petitioner has conceded that  the  appeal  and  the  petition  for  injunction  suffer  from  serious deficiencies in terms of providing description of the disputed land and mentioning of its quantity and he prays for dismissal of the appeal and discharge of the Rule.

In above view of the materials on record I find no substance in this First Miscellaneous Appeal and the Rule.

Hence, this First Miscellaneous Appeal is hereby dismissed and Civil Rule No.712(FM) of 2022 is hereby discharged.

However, there is no order as to costs. 

MD. MASUDUR RAHMAJN    BENCH OFFICER