IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

                  Mr. Justice Md. Mozibur Rahman Miah

And

       Mr. Justice Md. Bashir Ullah

Civil Revision No. 1390 of 2024

IN THE MATTER OF:

An application under Section 115(1) of the Code

       of the Civil Procedure.

And

        IN THE MATTER OF:

        Mrs. Sarmin Akter and another

                        ... Defendant nos. 1 and 2-Petitioners.

 -Versus-

         Md. Samsul Islam Chowdhury and others

                                          ... Plaintiff-Opposite parties.          Ms. Nurun Nahar, Advocate

   ...For the petitioner.

                    Mr. Md. Towfiqul Islam Khan, Advocate

     ... For the Opposite Parties.

Heard on 11.11.2024 Judgment on: 12.11.2024

Md. Bashir Ullah, J.

At the instance of defendant nos. 1 and 2 in Title Suit No. 42 of 2023, this Rule was issued calling upon the opposite party no. 1 to show cause as to why the order dated 04.03.2024 passed by the learned Joint District  Judge,  Second  Court,  Gazipur  in  the  above-mentioned  suit

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

passed as to this Court may seem fit and proper.

At the time of issuance of the Rule, all further proceedings of Title

Suit No. 130 of 2024, pending in the Joint District Judge, First Court,

Gazipur  was  stayed  for  a  period  of  03(three)  months  which  was subsequently extended on 25.08.2024 for another 01(one) year.

The salient facts, relevant for the disposal of the Rule are:

The opposite party no.1 as plaintiff instituted a suit being Title

Suit No. 42 of 2023 before the learned Joint District Judge, Second

Court, Gazipur seeking the following reliefs:

12.     h¡c£fr e¡¢mn£ ‘L’ qC−a ‘O’ ag¢pm h¢ZÑa 250 na¡wn pÇf¢šl ®o¡mBe¡ j¡¢mL j−jÑ h¡c£ f−rl f−r Hhw ¢hh¡c£f−rl ¢hl¦−Ü HL üaÅ ®O¡oZ¡l ¢X¢œ² ¢c−a;
13. Bl¢Sl ‘P’ ag¢p−ml 1ew qC−a 6ew œ²¢j−L E−õ¢Ma c¢mm cÙ¹¡−hS…¢m ®k¡Np¡Sp£, a’L£, L¡NS£, ®hBCe£, AL¡kÑLl Hhw h¡c£f−rl ü−aÅl Efl h¡dÉLl eu j−jÑ ®O¡oZ¡j§mL ¢X¢œc ² − ¢az
14.    j¡ee£u Bc¡ma La«ÑL Il©f ®O¡oZ¡j§mL ¢Xœ²£l Ae¤¢m¢f pw¢nÔø i¢mu−j ®e¡V LlZ¡−bÑ 10ew ¢hh¡c£l hl¡h−l ®fÐl−Zl SeÉ B−cn ¢c−a;
15.    e¡¢mn£ pÇf¢š−a h¡c£f−rl cMm b¡L¡l ¢hou¢V ¢e¢ÕQa L¢lu¡ ¢hh¡c£frN−Zl ¢hl¦−Ü cMm ¢ÙÛla−ll ¢Xœ²£ ¢c−a;
16.     ®j¡LŸj¡u k¡ha£u MlQ h¡c£f−rl Ae¤L¨−m J ¢hh¡c£f−rl fТaL¤−m fÐc¡−el l¡u J ¢X¢œ² ¢c−a;

17.   BCe, pja¡ BCe J p¡rÉ ¢hQ¡−l h¡c£fr Bl ®k ®k, fТaL¡l f¡C−a f¡−l a¡q¡l B−cn ¢c−a ýS¤−ll j¢SÑ quz

The plaintiff filed the above-mentioned suit stating inter alia that the land in question described in schedule “ka”, “kha”, “ga” and “gha” measuring 250 decimals belonged to one Sree Amrita Lal Mazumder, Sree Ajit Kumer Mazumder, Sree Shashanka Mazumder, Sree Birendra Kumer Mazumder, Harendra Chandra Malo and Ruhini Kumer Mali. C.S., S.A. and R.S. Khatians were recorded in their names. They sold 74.18 acres of land to Pagar Housing Society on 20.11.1968. Thereafter, the members of the Pagar Housing Society sold out 74.18 acres of land including the suit land to Dr. Sirajul Haque and Kazi Abdul Halim. They sold  out  the  case  land  to  Alhajj  Abdul  Hai,  Azizur  Rahman,  Md. Shafiqur Rahman, Alhajj Wahid and Anwara Begum through several registered deeds. Subsequently, Azizur Rahman, Md. Shafiqur Rahman, Alhajj Wahid, Abdul Hai and Anwara Begum sold out their land to Sonargaon Textile Mill, represented by Mr. Abul Kashem Chowdhury. Thus, Sonargaon Textile Ltd. represented by Mr. Md. Abul Kashem Chowdhury became owner of 1074.50 decimals of land by deed no. 8912, 8913, 9113, 20795, 22270, 22221, 14574, 26014, 14572, 26391, 22269, 20796, 20785, 26016, 26097 and 26015 and mutated the land in the name of the said Textile Mill. Thereafter, Sonargaon Textile Ltd. sold out the suit land described in the “ka”, “kha”, “ga” and “gha” schedule measuring 250 decimals to the plaintiff namely Md. Samsul Islam  Chowdhury  by  registered  deed  no.  21778  on  29.08.2010  and delivered possession of the land to the plaintiff. After purchase of the suit land, plaintiff leased out the same to Zaber and Zubayer Fabrics Ltd. by fencing boundary. Thus, Zaber and Zubayer Fabrics Ltd. which is a 100%  export  oriented  industry  have  been  operating  its  factory  by connecting  gas  and  electricity  line  and  employing  twenty  thousand laborers for more than twelve years on the suit land.

It is further stated that the defendant nos. 1 and 2 published a news in the Daily Inqilab on 31.10.2022 claiming ownership in the suit land. The  deed  dated  17.01.1989,  dissolution  of  partnership  deed  dated 13.03.2002  executed  by  Ahammad  Ali  Sardar,  deed  no.  3982  dated 04.10.2006  executed  by  defendant  no.  1,  heba  deed  no.  7463  dated 29.04.2008 executed by defendant no. 1 in favour of defendant no. 2, deed no. 6149 dated 22.04.2009 executed by defendant no. 2 in favour of defendant nos. 4 to 8 and deed no. 22591 dated 08.11.2010 executed by defendant no. 2 in favour of defendant no. 3 are illegal, inactive and fabricated. Thus, the defendants created false and fabricated deeds and documents which are collusive, inactive, illegal and void. The plaintiff is the 100% owner of the scheduled land and hence, he instituted the suit for declaration of title of suit land.

The defendant nos. 1 and 2 entered appearance in the suit but without filing any written statement filed an application under Order 1 section 10(2) of the Code of Civil Procedure, another application under Order 11 Rule 15 of the Code of Civil Procedure, an application for serving  summons  upon  defendant  nos.  3  to  11  and other  two applications for adding Fatema Akter and Kazi Maruf Hossain   as parties.  Ultimately  it  was  fixed  for  filing  written  statement  on 06.02.2024 but the defendant nos. 1 and 2 filed an application praying time till disposal of the five applications. Upon hearing, the trial Court fixed the next date on 04.03.2024 for filing written statement in default for hearing the suit ex parte. Being aggrieved, the defendant nos. 1 and 2-petitioners  decided  to  file  civil  revision  before  the  District  Judge, Gazipur and filed an application to that effect under section 10 of the Civil Procedure Code on 04.03.2024 before the trial Court to stay the proceedings of the suit till filing of the civil revision.

Upon hearing the parties, the learned Joint District Judge, Second Court, Gazipur rejected the application filed under section 10 of the Civil Procedure Code on 04.03.2024.

Being  aggrieved  by  and  dissatisfied  with  the  order  dated

04.03.2024, the defendants as petitioners filed the instant civil revision before this Court and obtained Rule and order of stay.

During the pendency of the above-mentioned suit, the learned Senior District Judge, Gazipur transferred the suit to the learned Joint District Judge, First Court, Gazipur under section 24 of the Code of Civil

Procedure on 11.03.2024 and the suit was renumbered as Title Suit No. 130 of 2024.

Ms. Nurun Nahar, learned Advocate appearing on behalf of the defendant-petitioner contends that an order under section 10 of the Code of Civil Procedure was necessary for staying the proceedings of the suit till filing of the revision but the trial Court failed to consider the prayer and thus committed an error of law resulting in an error in the decision occasioning failure of justice in rejecting the application for stay of proceedings of Title Suit No. 42 of 2023 till filing Civil Revision before the Court of District Judge, Gazipur.

She further contends that the trial Court passed a non-speaking order which is liable to be set aside and finally, she prays for making the Rule absolute by setting aside the impugned order.

Per  contra,  Mr.  Towfiqul  Islam  Khan,  learned  Advocate appearing on behalf of the plaintiff-opposite party contends that there is no other suit pending in the same or other Court between the parties and thus section 10 of the Code of Civil Procedure is not applicable and there is no illegality or infirmity in the impugned order passed by the learned Joint  District  Judge,  Second  Court,  Gazipur  and  finally  prays  for discharging the Rule.

We have heard the learned Advocates for both the sides, perused the civil revision, impugned order and other materials on record.

We have gone through the application dated 04.03.2024 filed by the defendant nos. 1 and 2-petitioners praying for stay of the proceeding of the suit under section 10 of the Code of Civil Procedure. We found no cause for filing such application. The defendants did not mention in the application that earlier any suit was instituted or any suit is pending between the same parties that requires to apply section 10 of the Code of Civil Procedure.

However, section 10 of the Code of Civil Procedure is reproduced below for our ready reference:

“10. No Court shall proceed with the trial of any suit in  which  the  matter  in  issue  is  also  directly  and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in Bangladesh having jurisdiction to grant the relief claimed, or in any Court beyond the limits of Bangladesh established or continued by the Government and having like jurisdiction, or before the Supreme Court.”

Learned Advocate appearing on behalf of the petitioners contends that the impugned order is not a speaking order and no reason was assigned by the trial Court in rejecting the application filed under section 10 of the Code of Civil Procedure but we cannot consider the contention as a valid one for interference of the impugned order. In this regard reliance may be placed in the case of Abdul Motaleb vs. Md. Ershad Ali and  others,  reported  in  18  BLD  (AD)  121  wherein  the  apex  Court observed:

“The High Court Division does not interfere with an order in revision unless the Subordinate Court has committed any error of Law “resulting in an error in the decision occasioning failure of Justice.” Not all errors of Law call for interference unless the Court is satisfied that there has been an error in the decision also occasioning failure of justice. The order of the Subordinate Judge may have been a bad order and improper  one  not  having  given  any  reasons  but, before  interfering  with  the  same  the  High  Court Division ought to have examined whether the same has  resulted  in  an  erroneous  decision  occasioning failure of justice which it has completely failed to do.”

While rejecting the application filed under section 10 of the Code of  Civil  Procedure,  the  learned  Joint  District  Judge,  Second  Court, Gazipur  rightly  observed  that  the  defendants  did  not  make  out  any specific case why under section 10 of the Code of Civil Procedure the proceeding of the suit would be stayed and the trial Court found no cogent reason to stay the proceeding by allowing the application filed under section 10 of the Code of Civil Procedure. Further, the Court below  after  considering  the  materials  on  record  and  laws  correctly rejected  the  application  thereby  committed  no  error  of  law.  So,  the findings of the Court below are not liable to be interfered with by this Court as well.  

Given the above facts and circumstances, we do not  find any substance in the Rule rather we find that the trial Court has committed no error of law resulting in an error in the decision occasioning failure of justice in rejecting the application filed by the defendants-petitioners under section 10 of the Code of Civil Procedure and as such the Rule is liable to be discharged.

As a result, the Rule is discharged, however without any order as to costs.

The order of stay granted at the time of issuance of the Rule stands recalled and vacated.

Let a copy of this judgment be communicated to the concerned court forthwith.

Md. Mozibur Rahman Miah, J.

I agree.

Md. Sabuj Akan/ Assistant Bench Officer