IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

Present:

Mr. Justice Md. Mozibur Rahman Miah                             and

[ Mr. Justice Md. Bashir Ullah

First Miscellaneous Appeal No. 211 of 2019

In the matter of: 

Bangladesh House Building Finance Corporation, Zonal

Office, Rajshahi.

                                           ---Plaintiff-Appellant.

-Versus-

                      Most. Rowshan Ara Begum

                              --- Defendant-Respondent.

                      Mr. Sikder Mahmudur Razi, with

  Mr. Md. Zahirul Islam, Advocates

                    ---For the Appellant.

Not represented      --- For the respondent.

Heard on 28.08.2024 Judgment on: 29.08.2024

Md. Bashir Ullah, J

 At the instance of the plaintiff in Miscellaneous Case No. 40 of 2013,  this  appeal  is  directed  against  the  judgment  and  order  dated 17.06.2019  passed  by  the  learned  District  Judge,  Rajshahi  in  the aforesaid case dismissing the same.

The salient facts leading to preferring this appeal are:

Bangladesh House Building Finance Corporation, Zonal Office, Rajshahi  (briefly  “the  Corporation”)  as  plaintiff  filed  the  said Miscellaneous  case  for  realisation  of  Taka  11,22,682.77  from  the defendant  contending  inter  alia  that,  the  defendant  applied  to  the

plaintiff, Corporation for a loan to construct a house in the scheduled land.  Then the plaintiff sanctioned  Taka  4,10,000/- in  favour  of  the defendant with interest at the rate of 10% per annum on 09.02.1983 under sanction letter no. Raj/118. Subsequently, the plaintiff sanctioned another loan amounting to Taka 47,000/-. The said loan was scheduled to be repaid within 30 years with monthly installment at Taka 3548.45. However, the defendant failed to repay the loan amount as per condition of the sanction letter and thus, the default loan amount with interest stood  at  Taka  9,93,093.84  and  that  of  another  at  Taka  1,29,588.93 totaling at Taka 11,22,682.77 and hence the plaintiff prayed for a decree for the realisation of the said amount with interest.

The  defendant  contested  the  suit  by  filing  a  written  objection denying all material averments so made in the plaint. It has been stated that there is no cause of action to file the suit. The case has been filed suppressing the facts as earlier, the plaintiff filed Miscellaneous Case No. 88 of 1992 before the Subordinate Judge and Artha Rin Adalat, Rajshahi for realisation of Taka 8,08,897.23 and the Miscellaneous Case was allowed on 03.10.1993. The defendant adjusted entire liability by paying Taka 9,14,400/-. After repayment, the defendant requested the plaintiff to return the mortgage deed and other documents as there is no liability. However, the plaintiff did not return the deed and documents.

When  the  defendant  sent  a  legal  notice  to  the  plaintiff, Corporation through her lawyer on 06.04.2015 and as the plaintiff did not return the documents the defendant then filed Other Class Suit No. 122 of 2016 before the Senior Assistant Judge, Sadar Court, Rajshahi for getting the deed and documents lying with the plaintiff, Corporation. The plaintiff did not mention in its plaint about the Miscellaneous Case No. 88 of 1992 and Other Class Suit No. 122 of 2016. Hence, the defendant prayed for dismissing the suit. 

The trial Court framed as many as 04(four) different issues and in course of the trial, the plaintiff examined 01(one) witness and defendant examined  01  (one)  witness  and  both  parties  adduced  documentary evidence in order to prove their respective cases.

Upon hearing, the parties and on perusal of the pleadings, the learned District Judge, Rajshahi dismissed the miscellaneous case on 17.06.2019.

Being aggrieved by and dissatisfied with the judgment and order dated 17.06.2019 passed by the District Judge, Rajshahi the plaintiff as appellant then preferred the instant appeal.

Mr. Md. Zahirul Islam, the learned Advocate appearing on behalf of  the  plaintiff-appellant  submits  that,  the  learned  District  Judge, Rajshahi erred in law and fact in passing the impugned judgment and order and therefore the impugned judgment and order is liable to be set aside.

He next submits that, the learned District Judge did not provide any cogent findings on assessing the evidence on record and without considering the documentary evidence dismissed the miscellaneous case by  the  impugned  judgment  and  order  and  as  such  the  impugned judgment and order is liable to be set aside. With such submission, the learned Advocate finally prays for allowing the instant Appeal.

None represented on behalf of the opposite party.

We have heard the learned Advocate for the appellant, perused the memorandum of appeal, impugned judgment and order passed by the

trial Court and other materials on record.

We find from the deposition of OPW 1 Md. Mamun who stated in

his chief that, the defendant adjusted the entire liability, complying with

the judgment and decree passed in Miscellaneous Case No. 88 of 1992

filed earlier even then the plaintiff filed the miscellaneous case against

the defendant. The PW 1 Farzana Hossen, Principal Officer (Law) could

not deny the claim of the defendant. PW 1, further stated in her cross- examination that, ¢hNa 03/10/1993 ¢MËx a¡¢l−M 88/92 ew AbÑGZ ®j¡LŸj¡l l¡u J ¢X¢œ² qC−a f¡−lz Na 6/11/93 ¢MËx a¡¢l−M 1j ¢L¢Ù¹l V¡L¡ ®cJu¡ qC−a f¡−lz I ®j¡LŸj¡u a¡q¡−cl c¡h£ 8,08,897.23 V¡L¡ ¢Rm ¢Le¡ h¢m−a f¡l−he e¡z fТafr 9,14,400/- V¡L¡ f¢l−n¡d L¢lu¡−Re ¢Le¡ S¡−ee e¡z G−Zl V¡L¡ f¢l−n¡d p¡−f−r håL£ L¡NSfœ ®gla ®cJu¡l Lb¡ ¢Rm ¢Le¡ hm−a f¡l−he e¡z L¡NSfœ ®gl−al SeÉ 6/4/15 ¢MËx a¡¢l−M a¡−cl−L ¢mNÉ¡m ®e¡¢Vn −cJu¡ qu ¢Le¡ S¡−ee e¡z ¢mNÉ¡m ®e¡¢Vn ®cJu¡ p−aÅJ L¡NSfœ ®gla e¡ ®cJu¡u pcl ¢p¢eul pqL¡l£ SS Bc¡m−a Ax fÐx 122/16 ew ®j¡LŸj¡ HC j¡jm¡l fТafr c¡¢Mm L−l ¢Le¡ S¡−ee e¡z HC ®j LŸj¡u q¡ES ¢h¢ôw g¡Ce¡¾p L−fÑ¡−lne Sh¡h c¡¢Mm L−l ¢Le¡ S¡−ee e¡z

Since the plaintiff earlier filed Miscellaneous Case No. 88 of 1992

before the then Subordinate Judge and Artha Rin Adalat, Rajshahi, it

cannot file Miscellaneous Case No. 40 of 2013 before the District Judge, Rajshahi on similar issue.

The District Judge, Rajshahi very rightly observed that AbÑGZ Bc¡m−al 88/92 ew ®j¡LŸj¡l l¡u J ¢X¢œ²−a Ap¿ºø qCu¡ b¡¢L−m clM¡Ù¹L¡l£ Eš² l¡u J ¢X¢œ²l ¢hl¦−Ü BCe¡e¤N fc−rf NËqZ L¢l−a f¡¢l−aez ¢L¿º a¡q¡ L−le e¡Cz Eš² ®j¡LŸj¡l l¡u ¢X¢œ²−a Bc¡m−al fkÑ−hr−e ®L¡e i¤m b¡¢L−m a¡q¡l ¢hl¦−Ü EµQ Bc¡m−a fТaL¡l fСbÑe¡l p¤−k¡N ¢Rmz ¢L¿º q¡ES ¢h¢ôw g¡CeÉ ¾p L−fÑ¡−lne a¡q¡J L−le e¡Cz ... q¡ES ¢h¢ôw g¡CeÉ¡¾p L−fÑ¡−lne a¡q¡−cl h¡bÑÉa¡l c¡ui¡l ®N¡fe L¢lu¡ Aœ ¢jp ®Lp Beue L¢lu¡−R, k¡q¡ Ae¡L¡¢´Ma J Ae¢i−fÐaz

It appears that, the case was filed by suppressing the facts so the subsequent Miscellaneous Case is barred by the principle of res-judicata

and the case should not have been filed at all which is unfortunate and unwarranted as no one shall be vexed twice when the issue has been

fairly and finally decided in a former suit. Once an issue has been finally decided it cannot be re-agitated by the same parties.

Given the above facts and circumstances, we do not find any illegality or impropriety in the impugned judgment and order, which  calls for no interference by this Court. Therefore, we do not find any substance in the appeal.

Resultantly, the appeal is dismissed, however without any order as

to cost. 

The judgment and order dated 17.06.2019 passed by the learned District Judge, Rajshahi in Miscellaneous Case No. 40 of 2013 is thus sustained and affirmed.

Let a copy of the judgment along with the lower Court’s record be transmitted to the concerned Court forthwith.

Md. Mozibur Rahman Miah, J.

I agree.

Md. Ariful Islam Khan Bench Officer