Present:

                  Mr. Justice Md. Salim

CIVIL REVISION NO.1743 OF 2024 Haji Mohammad Ali and others

      .............. Plaintiff-Petitioners. -VERSUS-

Kamrun Nahar @ Kamrunnessa and others

.................. Defendant-Opposite Parties. Mr. Mohammad Harun, Advocate

------- For the petitioners. Mr. Shahriar Mahmood, Advocate

-------- For the opposite party No.1.

Heard on 31.10.2024 and 14.11.2024. Judgment on 14.11.2024.

By this Rule, the opposite parties were called upon to show cause as to why the impugned judgment and order dated 16.01.2024 passed by the learned Additional District Judge, 5th  Court,  Chattogram  in  Civil  Revision  No.212  of  2023, rejecting  the  revisional  application  and  affirming  the  order dated 13.07.2023 passed by the learned Joint District Judge, 2nd Court, Chattogram in Title Suit No.94 of 2023 rejecting the application under Order VII Rule 11, (a) and (d) read with Section 151 of the Code of Civil Procedure for rejection of plaint should not be set aside.

The plaintiff-opposite party instituted Other Suit No.94 of 2023 before the Joint District Judge, 2nd Court, Chattogram, to partition the land described in the plaint's schedule.

During the pendency of the above suit, the defendants Nos.2-4 and 7 entered an appearance before the Court without filing any written statement applying for rejection of the plaint under Order VII Rule 11, (a) and (d) read with Section 151 of the Code of Civil Procedure as barred by law.

Subsequently,  the  learned  Joint  District  Judge,  2nd Court, Chattogram, rejected the application by the judgment and order dated 13.07.2023.

Being aggrieved, the defendant petitioner preferred Civil Revision No.212 of 2023 before the District Judge Chattogram. Eventually, the learned Additional District Judge, 5th Court, Chattogram,  rejected  the  Civil  Revision  in  affirming  those passed by the trial Court by the judgment and order dated 16.01.2024.

Being  aggrieved,  the  defendants-petitioners  filed  the present  Civil  Revision  before  this  Court  and  obtained  the instant Rule and order of stay.

Mr. Mohammad Harun, the learned Counsel appearing on behalf of the petitioners, submits that the scheduled lands of the plaintiffs are Trust property that have been transferred by the deed No.3803 dated 27.06.1990 and handed over by the predecessor of the plaintiff and defendants to trustee holder 1- 6. However, without disclosing the true facts of the case, the plaintiff-opposite party filed the instant suit, and thus, the suit

is barred under Order 7 Rule 11 of the Code of Civil Procedure. Moreover, both the Court below rejecting the application filed by the petitioner are not sustainable in the eye of the law.

On the contrary, Mr. Shahriar Mahmood, the learned Counsel appearing on behalf of the opposite party, submits that the plaintiff does not know whether the suit properties were Trust property. Moreover, since the defendants have yet to file any written statement stating that the suit propertes are Trust  property,  both  the  Courts  below  rightly  reject  the petitioner's application. 

I  have  anxiously  considered  the  submission  made  by Counsel for both parties perused the plaint, judgment and order, and application under Order VII Rule 11 of the Code of Civil Procedure and other materials on record. In view of the averments made in the plaint and the relief sought for, now the pertinent  question  calls  to  determine  this  Rule  is  to  see whether the learned Additional District Judge committed any illegality in rejecting the application under Order VII Rule II of the  Code  of  Civil  Procedure  while  the  suit  was  fixed  for submission of written statements of the defendants.

The cardinal settled principle of law is that in deciding whether the plaint should be rejected, the Court must consider only  the  plaint.  The  Court  must  apply  its  mind  to  the averments made in the plaint itself as a whole, assuming all the  averments  made  therein  to  be  corrected,  without considering  the  possible  defense  plea.  In  other  words,  the Court can reject the plaint only when it concludes that even if all  the  allegations  made  in  the  plaint  are  still  proven,  the plaintiffs would not be entitled to any relief. In this regard, the case of Bangladesh Jatiys Samabaya Shilpa Samity Ltd. Vs Shan Hosiery, Proprietor Md Abu Taleb reported in 12 BLT (AD) 253, 10 BLC(AD)8 it was held that—

‘‘With regard to rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure, the High Court Division rightly found that in deciding the question as to whether a plaint is liable to be rejected, the court is always required to peruse the plaint only and court is not permitted to travel beyond the plaint to dig out grounds to reject the plaint which is a settled principle of law.’’

Further,  it  is  noted  that  it  is  the  cardinal  settled proposition of the law that a plaint of a suit cannot be rejected before filing the written statement. In this regard, the case of Manzur Murshed Khan and Ors Vs. Bangladesh Bank and Ors reported in 72 DLR (HCD) 744 it was held that---

‘‘ Further, after scrutinizing the series of decisions of our Apex court in respect of Order VII Rule II of the Code of Civil Procedure, we may refer some of decisions reported in 39 DLR (AD) 1, 42 DLR (AD) 244, 49 DLR 531, 564, 53 DLR(AD) 62, 5 DLR (AD) 125 and 57 DLR (AD) 18 wherein the principles laid down as under:-

1.                The well-settled principle of laws relating to Order  VII  Rule  II are  the  plaint  can  be rejected only on reference to plaint itself as whether it is barred in any of the four clauses of  Order  VII  Rule  II of  the  Code  of  Civil Procedure.
2.             Plaint cannot be rejected on defense materials as well as on mixed question of law and fact.
3.          Where evidence is required and where there is matrial, plaint cannot be rejected.
4.         Plaint can be rejected if it does not disclose a cause of action and barred by any law.
5.            There  is  no  hard  and  fast  rule  when  an application for rejection of plaint is to be filed, but ends of justice demand that it must be filed at the earliest opportunity.
6.         Plaint cannot be rejected before filing of the written statement.’’

In the instant case, It manifests from the record that the plaintiff-opposite party filed the instant suit for partition of the suit property described in the schedule of the plaint, and from the averment of the plaint, it reveals nothing that the suit properties are Trust property. On the other hand, no written statement  has  yet  been  submitted  by  the  defendant  from whom the Court found that the suit property is the Trust property.

 In view of the above facts and circumstances of the case and on materials on record, I am of the view that the learned Additional District Judge, 5th Court, Chattogram, rightly and justifiedly says that the question of maintainability of the suit might be determined at the trial, and concurred with the view of the trial Court. Therefore, I do not find any illegality in the impugned order calling for interference under Section 115 of the Code of Civil Procedure.

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

The order of stay granted at the time of issuance of Rule by this Court stands vacated.

Communicate this judgment.

…………………….  (MD. SALIM, J).

Kabir/BO