IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.4232 OF 2024

In the matter of:

An application under Section 115(1) of the Code of Civil Procedure.

And

Shahnaz Begum and others 

... Petitioners

-Versus-

Saidur Rahman and others

... Opposite parties

None appears

.... For the petitioners.

Mr. Ahmed Nowshed Jamil with

Mr. Ashim Kumar Mallik, Advocates

…. For the opposite party No.1. Judgment on 21.11.2024.

This Rule was issued calling upon the opposite party Nos.1 and 2 to show cause as to why the impugned judgment and order dated 14.08.2024 passed by the Additional District Judge, 8th Court, Dhaka in Miscellaneous  Appeal  No.110  of  2024  reversing  the  order  dated 31.03.2024 passed by the learned passed by the learned Joint District Judge, 2nd Court, Dhaka in Title Suit No.206 of 2016 should not be set aside and or pass such other or further order or orders as to this Court may seem fit and proper.

Facts in short are that the petitioner as plaintiff instituted above suit for declaration of title and partition. In above suit on 07.02.2014 the plaintiff filed a petition under Order 39 Rule 1 and 2 and Section 151 of

the Code of Civil Procedure for an order of ad-interim and temporary injunction  against  the  defendant  restraining  him  from  changing  the nature, feature and character of the disputed property. The learned Joint District Judge on hearing the learned Advocate for the petitioner directed for issuance of notice upon the defendants.

On receipt of above notice defendant No.1 entered appearance and the learned Joint District Judge took up above injunction petition for  hearing  on  31.03.2024.  After  hearing  the  learned  Advocate  for respective  parties  and  on  consideration  of  materials  on  record  the learned Joint District Judge passed an ad-interim order directing both the parties to maintain status-quo with regard to the the nature, feature and character of above land.

Being aggrieved by above judgment and order of the learned Joint District Judge defendant No.12 preferred Miscellaneous Appeal No.110 2024  to  the  learned  District  Judge,  Dhaka  which  was  heard  by  the learned Additional District Judge, 8th Court, Dhaka who allowed above appeal, set aside the impugned judgment and order of the trial Court and directed the learned Joint District Judge to dispose up the petition for injunction on merit in accordance with law.

Being aggrieved by and dissatisfied with the above judgment and order  of  the  learned  Judge  of  the  Court  of  Appeal  below  above respondent No.12 as petitioner moved to this Court and obtained this Rule.

No one appears on behalf of the petitioner when the Rule was taken  up  for  hearing  although  this  matter  appeared  in  the  list  for hearing on several dates.

Mr. Ahmed Nowshed Jamil, learned Advocate for opposite party No.1 submits that on receipt of the notice of the petition under Order 39 Rule 1 and 2 of the Code of Civil Procedure defendant No.12 entered appearance and participated in the hearing of above petition on merit. As such the learned Joint District Judge should have passed an order on above petition for injunction on merit. But the learned Joint District Judge  most  illegally  passed  an  ad-interim  order  of  status-quo  till hearing of above petition on merit which is illegal and not tenable in law.  The  learned  Judge  of  Court  of  appeal  below  on  correct appreciation of materials on record rightly allowed the appeal and set aside the flawed judgment and order of the trial Court which calls for no interference.

I have considered the submissions of the learned Advocate for the opposite party No.1 and carefully examined all materials on record.

It turns out from record that in this suit for declaration of title and partition the plaintiff submitted a petition on 07.02.2024 under Order 39 Rule 1 and 2 and Section 151 of the Code of Civil Procedure for an order of ad-interim and temporary injunction. The learned Joint District Judge instead of passing an ad-interim order directed for issuance of notice upon the defendants and defendant No.12 on receipt of above notice entered appearance and participated in the hearing of above petition for injunction on merit.

The learned Joint District Judge had legal jurisdiction to pass an order  of  ad-interim  injunction  on  the  first  day  of  hearing  of  above petition for injunction but as mentioned above instead of passing an ad- interim order of injunction the learned Joint District Judge directed for issuance of notice upon the defendant. As such the learned Joint District had no jurisdiction to pass the impugned order of ad-interim injunction on above petition under Order 39 Rule 1 and 2 and Section 151 of the Code of Civil Procedure. But the learned Joint District Judge could pass a judgment and order on the merit of above petition for injunction.

On  correction  appreciation  of  above  materials  on  record  the learned Judge of the Court of Appeal below has rightly allowed the appeal  and set aside  above  flawed  judgment and  order  of  the  trial Court  and  directed  the  learned  Joint  District  Judge  to  pass  an appropriate judgment on above petition for injunction after hearing both the parties a fresh which calls for no interference.

In above view of the materials on record I am unable to find any infirmity  or  illegality  in  the  impugned  judgment  and  order  of  the learned  Judge  of  the  Court  of  Appeal  below  and  this  revisional application  under  Section  151(1)  of  the  Court  of  Civil  Procedure  is devoid of any substance and the Rule issued in this connection is liable to be discharged.

In the result, the Rule is hereby discharged.

The order of status-quo granted at the time of issuance of the Rule is vacated.

However, there is no order as to costs.

Send down the lower Courts records immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER