IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

Civil Rule No. 996(V)(R) of 2015

(Arising out of Civil Rule No. 739(FM) of 2015).

In the matter of:

Mohammad Alauddin Sikder and others.

..... Petitioner. -Versus-

Md. Mujibur Rahman and others.

......Opposite Parties. Mr. Md. Nurul Amin, with

Mr. Surojit Bhattacharjee, Advocates

....For the Petitioners. Ms. Rezina Mahmud, Advocate

…For the Opposite Party Nos. 1-4. The 20th March, 2016.

Present:

Mr. Justice Quazi Reza-Ul Hoque

And

Mr. Justice J. N. Deb Choudhury.

J. N. Deb Choudhury, J:

The instant Rule was issued on 23.11.2015 calling upon the opposite parties to show cause as to why they should not be detained in Civil Jail and their property should not be attached for wilful disobedience and breach of the Hon’ble Court’s order dated 12.08.2015 and/or such other or further order or orders passed as to this Court may seem fit and proper.

Plaintiff-petitioners filed Civil Suit 681 of 2012, before the Joint District Judge, 1st Court, Gazipur for the following reliefs:

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The plaintiffs’ case in short is that a total 2.03 acres of land of dag Nos. 852 and 851 under C.S. Khatian No. 22 originally belonged to Sri Krishna Kanta Pandit, on the basis of permanent rayat under Zaminar Krishana Shuyam Kishore Roy and Kumar Rabindra Narayan Roy Chowdhury. Krihna Kanta Pandit died leaving Monomohan Pandit who while had been possession transferred the said properties to his wife Kadambini Devi by registered deed gift dated 28.07.1933, and delivered possession of the same. Kadambini Devi died living Mathura Mohan Pandit Binoy Kumar Pnadit, and only unmarried daughter namely Aroti Bala Devi. Mathura Mohan Pandit got 1.015 acres of land out of 2.03 acres of land by amicable partition among the co- shares and remaining 1.015 acres of land belonged to Binoy Kumar Pandit and Aroti Devi who while had been possessing the same transferred the same in favour of the plaintiff Nos. 1-14 by different registered Kabalas in the year 1975 and 1985 and delivered possession of the same. Mathura Mohan Pandit died leaving plaintiff Nos. 15-17 as his legal heirs who have been possessing 1.015 acres of land by constructing shops, in some portion of the land, and cultivating crops on other parts from statutory period of limitation. That total 70 acres land out of the suit land erroneously recorded in the name of the Government in S.A Khatian No. 1 without any basis. The Government cannot claim the property on the basis of wrong preparation of S.A Khatian and the wrong preparation of record of rights has created cloud of the plaintiffs’ title. The defendants 7-10 gave open threat to the plaintiffs of dispossession which compelled them to file the instant suit.

During pendency of the suit the plaintiffs filed an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure for temporary injunction; the defendant respondent-opposite parties did not file any written objection; but, orally opposed the prayer for temporary injunction and the trial court by order dated 29.03.2015, rejected the prayer for temporary injunction. Being aggrieved the plaintiffs preferred First Miscellaneous Appeal No. 245 of 2015 before this Court and also filed an application for injunction wherein on 12.08.2015 Rule was issued being Civil Rule No. 739(FM) of 2015 along with an ad-interim order, restraining the opposite party Nos. 1 -10 in the following term, initially for 4(four) months and on 06.12.2015 the same has been extended till disposal of the Rule.

“Pending hearing of the Rule, the opposite party Nos. 1- 10 are restrained by an order of injunction from entering into the suit land forcibly or from changing the nature and character of the same for a period of 04(four) months from date.”

That the petitioners on 16.11.2015 filed an application under Order XXXIX Rule 2(3) of the Code of Civil Procedure against opposite party Nos. 1-4, for violating the order dated 12.08.2015 wherein Rule was issued being Civil Rule No. 996(V)(R) of 2015.

After taken up the Rule for hearing, this Court on 10.02.2016 passed the following order:

“The Rule was issued calling upon the opposite party Nos. 1-4 to show cause as to why they should not be detained in civil jail and their property should not be attached for wilful disobedience and breach of this Court’s order dated 12.08.2015.

While the matter has been taken up for hearing by this Court, it appears that this Court on 12.08.2015 passed an order of ad-interim injunction in Civil Rule No. 739 (FM) of 2015, arising out of F.M.A.T. No. 377 of 2015 in the following terms:

“Pending hearing of the Rule, the opposite party Nos. 1-10 are restrained by an order of injunction from entering into the suit land forcibly or from changing the nature and character of the same for a period of 4(four) months from date.”

The petitioners stated that inspite of the order of injunction and service of the same the opposite party Nos. 1-4 of the Rule in violation the order of injunction dispossessed the petitioners from a portion of the suit land and also planted different kinds of trees.

Heard the learned Advocates for both the parties, perused the application.

The learned Advocates for the petitioners and the opposite party Nos. 1-4 are in an agreement that without enquiry, the fact of violation cannot be decided.

We are also of the view that there should be a proper enquiry into the matter for deciding, whether there was any dispossession taken place as stated by the petitioners in violation of the order of injunction passed by this Court on 12.08.2015.

Accordingly, we direct the learned District Judge, Gazipur to make an enquiry by a judicial officer not below the rank of Joint District Judge.

The parties are also at liberty to adduce evidence in support of their respective claims concerning the allegation of violation before the enquiry officer.

The Superintendent of Police, Gazipur is also directed to accord police assistance to the enquiry officer, who will conduct the enquiry in the matter as stated above.

The learned District Judge, Gazipur is further directed to complete the enquiry and send all relevant documents including the enquiry report to this Court by 9th March, 2016.

The concerned section is directed to communicate the order to the learned District Judge, Gazipur and the Superintendent of Police, Gazipur immediately, along with a set of photocopies of the concerned file. 

Let this matter appear in the list for further order on

09.03.2016.”

In view of the direction the learned District Judge, Gazipur, appointed the learned Joint District Judge, of Second Court, Gazipur, who after physically visiting the suit land and on examining the local witnesses submitted the report dated 01.03.2016 along with the depositions taken by the learned Judge at the spot, which has been forwarded by the learned District Judge to this Court. The report dated 01.03.2016 of the learned Joint District Judge, Second Court, Gazipur is quoted below:

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(Underlines by us for giving emphasis).

Mr. Nurul Amin, the learned Advocate appearing for the petitioners submits that from a plain reading of the report it appears that the opposite party Nos. 1-4 violated the order dated 12.08.2015 and accordingly he prays for making the Rule absolute by awarding punishments to the opposite party Nos. 1-4.

Ms. Rezina Mahmud, the learned Advocate appearing for the opposite party Nos. 1-4 of the application for violation, submits that the plaintiffs are the owners of Dag No. 852, while the defendants are the owners of Dag No. 850 and in between that, Dag No. 851 belong to Government and the defendants never claimed any land of Dag No. 852 and accordingly she submits that the opposite party Nos. 1-4 did not violate the order of this Court dated 12.08.2015.

Heard the learned Advocates for the parties, perused the application, along with other annexures and the report of the learned Joint District Judge, Gazipur.

At the very outset it may be mentioned here that Ms. Rezina Mahmud did not dispute the report as forwarded and quoted above, nor filed any affidavit against the report.

In this Rule, the main point for consideration is whether the opposite party Nos. 1-4 disobeyed the order dated 12.08.2015 passed by this Court?

It appears from the report that the learned Joint District Judge, Second Court, Gazipur visited the suit land and found that the land indentified by the parties is the suit land and also found that there are new plantations and the witnesses of the locality also affirmed the same as were done within 6/7 months. The learned Judge also herself examined the plantations and found a total 25 saplings were planted and those appears to have been brought from nursery and some of them still containing even plastic bags with new leafs. The learned Judge also opined that the age of the saplings will be around 6/7 months.

It appears that the new plantations done by the opposite party No. 1, Md. Mujibur Rahman, as also proved by the witnesses both from plaintiffs and defendants. Though no date of actual planting of the saplings stated; but, it appears that the petitioners stated in the application, that those were done after the order of injunction passed by this Court. The notice of the Civil Rule No. 739(FM) of 2015 has been served upon the opposite parties on 21.09.2015. Moreover, it appears from the conduct of the opposite party No. 1 that the act of demonstration by planting of saplings showing total disregard to the order of this Court dated 12.08.2015, itself prove the act of disobedience.

In this connection a case of Abdul Jalil Munshi vs. Abu Bakr Siddique, reported in 35 DLR (AD) 42 may be referred to wherein their lordships of our Hon’ble Appellate Division held that:

“One consistent principle which emerges out of those decisions of the Dacca High Court is, that if a party to a suit does not act to bring about a change in the state of things existing at the date of the suit or just prior to that date, in order to forestall a possible order of the Court, the Court may in an appropriate case, in exercise of its inherent power, require the offending party, by issuing a temporary injunction in mandatory form to restore the status-quo ante. This principle is in consonance with fair administration of justice and this power of making an order of mandatory injunction on an interlocutory application may be exercised, irrespective of the merits of the main case as it is one of the main concerns of a Court of law to see that no one dares to interfere with the course of justice by presenting the Court with a fait accompli.”

In view of the ad-interim order of this Court dated 12.08.2015, the defendant-opposite party Nos. 1-10 are bound to obey the order and cannot even enter into the suit land nor can change nature and character of the suit land. The ad-interim order passed on 12.08.2015, served upon the opposite parties on 21.09.2015. The opposite party Nos. 1-4 in the counter affidavit rather asserted their possession. As such any act done in disobedience of the ad-interim order dated 12.08.2015, tantamounts of committing the offence under Order XXXIX rule 2(3) of the Code of Civil Procedure. 

In view of the above, we find that the opposite party No. 1 Md. Mujibur Rahman, deliberately and intentionally violated the order of the injunction as granted by this Court on 12.08.2015, which proved beyond reasonable doubt from the evidence as taken by the enquiry officer so also from the report dated 01.03.2013 of the learned Joint District Judge, Second Court, Gazipur.

Accordingly, opposite party No. 1 Md. Mujibur Rahman is liable to be punished under Order XXXIX Rule 2(3) of the Code of Civil Procedure.

Accordingly the Rule is made absolute and the opposite party No. 1, Md. Mujibur Rahman son of Md. Saheb Ali, Village- Gaugan, Police Station- Sreepur, District- Gazipur is found guilty for disobedience of this Court’s order dated 12.08.2015 and accordingly he is directed to be detained in the civil prison for a period of 07(seven) days.

The learned Joint District Judge, First Court, Gazipur before whom the Civil Suit No. 681 of 2012 is pending, is hereby directed to take necessary steps to implement this order.

Communicate  the  order to  the  learned  Joint  District Judge, First Court, Gazipur at once.

Quazi Reza-Ul Hoque, J:

I agree.