Order 1, Rule 1
For declaration of his title to the suit land claiming the same by way of inheritance from his father and by amicable arrangement with other heirs of his father Md. Hashmat Ullah Tapadar vs. Md. Baset Khan (Mohammad Fazlul Karim J) (Civil) 5ADC 565
Order 1 Rule 8
The decision taken by No. 4 Digholbak Union Parishad for constructing perma nent office of the said union parishad at Nandipur village being legal, valid, bonafide and within jurisdiction is bind- ing on the defendants and the decision taken by defendant Nos.2 and 4 in re- spect of construction of permanent of- fice of the said union parishad at Kamargaon village is illegal. Md. Rus- tom Ullah vs. Md. Zomiruddin (Md. Tafazzul Islam J) (Civil) 7 ADC 541
Code of Civil Procedure [V of 1908]
Order 1 Rule 8-Where there are numerous persons having the same interest in one suit, the Court may direct that one or more of such persons may sue or be sued, or may defend, in such suit, on behalf of or for the benefit of, all persons so interested.
The High Court Division held that in a suit many persons can be joined/added as plaintiffs as per the Code of Civil Procedure. In the instant case the Managing Committee of the Mandir consisting of 8 persons added as next friends of the deity is to protect the interest of the minor deity and by allowing the application the learned trial Court did not commit any error of law rather rightly allowed the application to protect the interest of the deity. Md. Azam and others Vs. Sree Sree. Dashabhuja Mata and others. (Civil) 19 ALR (HCD) 12-17
Order I, rule 9
From the above, it is crystal clear that the plaintiff was aggrieved by the letter dated 18.6.2002 of the Board. The plaintiff was not at all aggrieved by any action either of the Governing Body or its members and as such neither the Governing Body nor its members are necessary parties to the suit. In the plaint itself the plaintiff has not prayed for any relief against the Governing Body of the school and its members. The Court should not direct to add a person as defendant when the plaintiff is opposed to such addition. The reason is that the plaintiff is dominus litis. The plaintiff is the master of his suit and as such he should not be compelled to fight against anybody whom he does not wish to fight and against whom he has not sought any relief. Therefore, the High Court Division erroneously came to a finding that the suit was bad for defect of parties and for that reason remanded the suit to the trial Court for impleading the necessary parties to the suit. The findings arrived at and the decision made by the High Court Division having not been made on proper appreciation of law and fact call for interference by this Division. Rafiqul Islam vs. Board of Secondary and High Second- ary Education (Syed Mahmud Hossain J) (Civil) 10 ADC 315
The Code of Civil Procedure for addition of party, Order I rule 10(2)
It appears from the record that in the instant case though the petitioners have not enclosed the application under Order I rule 10(2) of Code of Civil Procedure in course of hearing of the Rule the learned Advocate for the petitioners have frankly conceded that the 3rd party applicants are claiming title on the basis of registered deeds from the defendant No 12-14 and that their deeds are prior to the date of execution of plaintiffs. Noor Jahan Begum vs. Golam Mostafa (Mohammad Fazlul Karim J) (Civil) 6 ADC 558
Order 1 rule 10
Whether the High Court Division was in error in nullifying the proceeding conducted by the Additional District Judge, inasmuch as the law does not say that trial by an Additional District Judge who was entrusted with the trial of Artha Rin Suit would be invalid be- cause of this lacuna. One Bank Limited vs. Chaya Developer (Muhammad Imman Ali J) (Civil) 8 ADC 963
Order I, Rule 10- Addition of party as a defendant- If upon taking evidence it is found that Abdul Quddus is son of Abdur Rahim, then it will be up to the plaintiff to amend the plaint accordingly. If it is found that Abdul Quddus is son of Abdun Nur, then the applicant is a different person to the one named in the plaint. In that case his name may be added as a defendant if he can satisfy the Court that he is a necessary party under Order I, Rule 10 of the Code of Civil Procedure. Civil petition for leave to appeal is disposed of. ...Abdul Quddus =VS= Joygunnessa, [6 LM (AD) 267]
Order I, rule 10(2)- Though there is no clear provision mentioning the word 'transposition' but order I rule 10(2) of the Code of Civil Procedure enables the courts to make such transposition, Order I rule 10(2) has empowered the courts to strike out name of any party, either plaintiff or defendant, improperly joined and also to add any persons-either as plaintiff or defendant-who ought to have been joined whether as plaintiff or defendant or whose presence before the court may be necessary for effectual and complete adjudication of the matter. Exercising this very power the courts can make transposition also of either of the parties of a suit or other proceeding to the other category of the parties and the courts also are doing so, and it has become a long practice now. Of course, generally, the courts will not allow transposition of defendants as plaintiffs after striking the names of the original plaintiffs or after transposing them as defendants. But in appropriate facts and circumstances-as these are in the present case-the courts should not be reluctant to make such transposition of the parties for the ends of justice or to prevent abuse of the process of the court. Mrs. Ruksana Huq & others =VS= A. K. Fayazul Huq & others, [1 LM (AD) 452]
Order 1, Rule 10(2)
Rejecting application filed by the petitioners praying for adding them as parties (1) Kazi Naimul Huq vs. Md. Abdus Sattar Bhuiyan (Md. Tajazzul Islam J) (Civil) 5ADC 605
Order 1, Rule 10
Order 22 Rule 9
The application for setting aside the abatement was filed within 14 days of the order recording abatement but the High Court Division erroneously found that the application was filed after 7 months. Furthermore the High Court Division failed to notice that the application of the respondent for her addition had not been dismissed by the learned Assistant Judge but was ordered to be put up in the suit itself after restoration. Md. Badruzzaman vs Begum Shamima Naz Siddique (Bimalendu Bikash Roy Choudhury J)(Civil) 2ADC 331
Person means a juristic person . A suit not filed by a juristic person would not be competent. [ 1991 CLC 1601 ]
The word " parties " in legal parlance is invariably taken to mean plaintiffs and defendants. [1990 CLC 1196 ]
The rule merely provides a procedure and has nothing to do with payment of court - fees . Hence although under this rule several persons may join as plaintiffs in the same suit , court - fees may have to be paid under the Court Fees Act as if separate suits were brought .
[ AIR 1935 Cal . 573 ]
The decree would be binding upon the profonna defendants though passed in their absence- The plaintiff and the PDB though a proforma defendant , fought out the suit clearly understanding the issues and the claim they were making against each other. [ 40 DLR 340 ]
Defect of Party Impleading of a nationalised company placed under a corporation whether constitutes defect of party - Defendant No. 1 is a nationalised company placed under a corporation renamed as Bangladesh Steel and Engineering Corporation . The company has not thereby lost its legal entity as a juristic person . It can sue and be sued without the corporation which controls the defendant company under Persident's Order 27 of 1972 and , as such , the suit in question could proceed against the defendant No. 1 without impleading the corporation . [ Progati Industries Ltd. Vs. Shahida Khatun , 43 DLR 29 ]
Representative Suit Object
The object with which this provision was enacted is to facilitate decisions on questions in which a larger body of persons are interested without recourse to the ordinary procedure where each individual has to maintain action by separate suit . [ Government of Bangladesh Vs. Mirpur Semipucca ( Tin - shed ) Kalayan Samity and others , 54 DLR 364 ]
Representative Suit
A decree passed in a representative suit enures to the benefit of or binds all the persons represented in the suit . [ Government of Bangladesh Vs. Mirpur Semipucca ( Tin - shed ) Kalayan Samity and others , 44 DLR 364 ]
Representative Suit
In the absence of the necessary leave , the suit cannot assume the character of a representative suit. [Government of Bangladesh Vs. Mirpur Semipucca ( Tin - shed ) Kalayan Samiry & others , 54 DLR 364 ]
Provisions not mandatory :
Since in the instant case the High Court Division discharged the Rule holding that the learned Senior Assistant Judge exercised his discretion in granting time to the defendant for filing written statement rejecting the application of the plaintiff for fixing the suit for ex parte hearing and the said discretion does not appear to have been exercised arbitrarily and capriciously and further since in 47 DLR ( AD ) 136 it has been held that the provisions of amended Order VIII , rule 1 is directory and not mandatory and Order I , rule 8 of the Code of Civil Procedure allowed the Court to give appropriate relief , we are of the view that the High Court Division did not commit any error in discharging the Rule . Further , since the High Court Division , on proper appreciation of the materials on record and applying the correct principle of law as applicable in present case , arrived at the correct decision , there is no cogent reason to interfere with the same . ( Khan Md Firoj Kabir Vs. Rupali Bank Lid ( Civil ) 206 , 59 DLR 2007 ]
Since objection as to non - joinder or mis - joinder of parties was not taken at the possible opportunity such objection cannot be taken subsequently and such right of the defenddent shall be deemed to have been waived . Order 1 , Rule 9 of the Code of Civil Procedure provides that no suit shall be defeated by reason of mis - joinder or non - joinder of non - joinder of parties and Rule 13 of the said Order provides that all the objections on grounds of non - joinder or mis - joinder shall be taken at the earliest possible opportunity and any such objection not so taken shall deemed to have been waived . Ali Azam Saial vs Joynal Abedin Saial ( Civil ) 299 , 61 DLR 2009 ]
Order 1 rule 9 of the Code of Civil Procedure is applicable in case of nonjoinder of necessary parties in the application for pre - emption in view of section 141 of the Code of Civil Procedure . Section 96 ( 2 ) of the said Act creates obligation on the part of the pre - emptor to make co - sharer tenants in the disputed holding as parties to the pre - emption application . ( Abdus Satter and others Vs. Abdur Noor and others , 49 DLR 414 ]
In spite of the Government being not joined as a party in the suit , the Courts below dealt with the matter of controversy so far as regards the right and interest of both the parties and , as such , by mere non joinder of the Government the suit cannot be defeated . [ Abdul Quayuam Khan Vs. Abu Yusuf Mridha , 51 DLR 386 ]
The High Court Division on the point of nonjoinder of the parties has correctly held that the purchasers of the part of the suit property being the transferees of the defendant No. 1 , will stand or ( all along with the defendant No. I and so Their absence the right , title and interest of the parties may be effectively disposed off . [ Ruhul Amin vs Official Liquidator . Mahalaxmi Bank Ltd ( Civil ) 1 , 14 BLC 2009 )
Since the applicants shall stand or tall along with the writ - petitioners , their presence as party Nos . 6-10 are not necessary for the determination of the real matter in dispute between the parties . [ Chairman , Rajdhani Unnuyan Karlripakkha ( RAJUK ) Vs A Rouf Chowdhury ( Civil ) 28 , 61 DLR 2009 ]
Addition of party
The Court for effective and effectual adjudication of any legal proceeding before any Court including the Revisional Court can add a party in that proceeding . It is not at all necessary that some relief mast have been claimed in a proceeding against the party which is joined in the proceeding as a party. [Tabibullah vs Bangladesh ( Civil ) 46 , 61 DLR 2009 ]
As soon as the letters of credit are established between the issuing bank and the negotiating bank , it becomes an independent agreement between the two banks , neither the seller nor the buyer has any privity to that agreement . So the presence of the petitioner is not necessary for proper adjudication of the suit . [ Zyta Garments Ltd. Vs. Union Bank Ltd. and another , 55 DLR ( AD ) 50]
If somebody comes before the court with an application that the whole transaction was forged , and cooked up for the suit with a view to grab the suit property and that the alleged vendor died long before the contract , his presence , it is difficult to say , would not be of any assistance to the court for adjudication of the issues. (Abdul Mannan ( Md ) Vs. Swaraj Roy and ors , 54 DLR 352 ]
As soon as the letters of credit are established between the issuing bank and the negotiating bank , it becomes an independent agreement between the two banks , neither the seller nor the buyer has any privity to that agreement . So the presence of the petitioner is not necessary for proper adjudication of the suit. [Zyta Garments Ltd. Vs. Union Bank Ltd. and another , 55 DLR ( AD ) 56 ]
If somebody comes before the court with an application that the whole transaction was forged , and cooked up for the suit with a view to grab the suit property and that the alleged vendor died long before the contract , his presence , it is difficult to say , would not be of any assistance to the court for adjudication of the issues . [Abdul Mannan ( Md ) Vs. Swaraj Roy and ors , 54 DLR 352]
The court has ample power to treat an application filed under Order I rule 10 CPC as an application under Order XXII rule 10 CPC . Mentioning of a wrong provision of law is no ground for rejection of the application if the substance of the application discloses ingredients of passing appropriate order . [ Abu Taher Bhuiyan Vs. Lal Mohon Mondal and others , 54 DLR 604 ]
Since the applicants shall stand or fall along with the writ petitioners , their presence as party Nons . 6 are not necessary for the determination of the real matter in dispute between the parties. [Chairman Rajdhanit Unnayan Kartipakkha ( RAJUK ) Vs. A Rouf Chowdhury ( Civil ) , 61 , DLR , 2009 ]
Addition of a subsequent transferee would not prejudice the plaintiff rather it would help him to get possession of the suit holding . ( Akram Hossain ( Md ) Vs .. Sahera Khatun ( Civil ) 640 , 57 DLR 2005 ]
As the petitioner had no right and title to the property he was not a necessary party to the suit for eviction of the monthly tenant . ( Abdur Rahim ( Md ) Vs. Bengal Bricks Industries Ltd and anr ( Civil ) 185 , 58 DLR 2006 ]
The plaintiff No. 9 has not taken any exception to the matter of figuring of plaintiff No.3 as the PW 1 for all the plaintiffs in the suit . In that state of the matter , defendants have no occasion to take exception as to the matter of deposing by plaintiff No.3 in support of the plaintiffs , including plaintiff No. 9. [ Kazi Md Abdul Kuddus Vs. Kaimon Bewa ( Civil ) 87 , 59 DLR 2007 ]
The plaintiff No. 9 has not taken any exception to the matter of figuring of plaintiff No.3 as the PW 1 for all the plaintiffs in the suit . In that state of the matter , defendants have no occasion to take exception as to the matter of deposing by plaintiff No.3 in support of the plaintiffs , including plaintiff No. 9. [Kazi Md Abdul Kuddus vs Kaimon Bewa ( Civil ) 87. ]
Where plea of non - joinder of parties was not taken in written statement of defendant , therefore , no issue was framed thereon . No suit , however would fail for non - joinder of any person against whom no relief was prayed.[NLR 1996 UC 217 ]
The rule applies to non - joinder of parties in suits , appeals and to references to arbitration .
( AIR 1914 Cal . 497 ( UB ) ]
Where all objection is taken at the proper time the Court is bound to adjudicate upon it , and the decision in this matter is binding on parties till it is set aside. ( AIR 1956 Cal . 577 ( DB ) ]
Code of Civil Procedure [V of 1908]
Order 1 Rule 10(2) read with Section 151
The parties who aggrieved to file revisional application under section 151 of the Code of Civil Procedure. The trial court became funtus-officio has nо jurisdiction to revoke the earlier order passed the impugned order recalling the earlier order is illegal and the same should be interfered without.
It appears to the High Court Division that the trial court earlier on 08.04.2008 allowed the application filed under Order 1 Rule 10(2) of the Code of Civil Procedure. But subsequently on an application under section 151 of the Code of Civil procedure the trial court recalled the earlier order. Whereas the provision is that the parties who aggrieved to file revisional application under section 151 of the Code of Civil Procedure. Considering the facts it is the High Court Division view that trial court became funtus-officio has no jurisdiction to revoke the earlier order passed the impugned order recalling the earlier order is illegal and the same should be interfered without. Considering the facts and circumstances of the case and the discussions made above, the High Court Division finds merit in the Rule. In the result, the Rule is made absolute. Rahim Afrooz Bangladeh Limited and another- Vs. Amin Mohammad lands Development Ltd. and others. (Civil) 23 ALR (HCD) 23
Code of Civil Procedure [V of 1908]
Order 1 Rule 10(2)-Addition of party Whether the High Court Division has committed any error in not considering that the applicant had been debarred by the judgment and decree of Other Class Suit being No. 79 of 1983 as he was the defendant in the earlier suit.
Whether the applicant is a proper party in the suit or the applicant is debarred from filing the application for addition of party?
The Appellate Division observed that on perusal of the plaint of the suit and the pleadings of the parties it is clearly divulged that in the instant suit parties are not same. The suit properties are not same and the reliefs claimed in the present suit are not similar, rather, squarely distinct and separate. In the facts and circumstances of the present case it appears that in earlier Suit No. 79 of 1983 the issues had been framed and decided are separate and distinct of which would not to be adjudicated in the present suit. Rather, in the instant suit as per pleadings of the parties distinct and separate issues would be framed and decided. The Appellate Division is, therefore, of the considered view that the objection raised by the plaintiff appellant does not attract any of conditions of the principles of resjudicata mentioned herein above. The question of resjudicata cannot be decided by dint of objection raised in the application for addition of party without framing issues at the time of trial. Reliance may be placed to the case of Sreemoti Puspa Rani and another Vs. A.K.M. Habibur Rahman and others, reported in XIII BLD (1993) (AD) 217. The Appellate Division is, therefore, of the view that the High Court Division committed no illegality in passing the impugned judgment and order which does not call for any interference by the Appellate Division. Regard being had and discussions made above, the Appellate Division finds no merit in the appeal. Accordingly, the appeal is dismissed. Mohammad Nurul Haque and another Vs.- Md. Nurul Haque and others (Civil) 22 ALR (AD) 162
Code of Civil Procedure [V of 1908]
Order 1, Rule 10-A partition suit does not come to an end with the passing of preliminary decree and continues till the final decree is passed and an application can be made for amendment of the plaint if an event changing the shares of the parties occurs or parties may be added after preliminary decree and their rights adjusted in the final decree.
The High Court Division is of the view that in order to avoid multiplicity of suits the opposite party Nos. 1-4 should have given an opportunity to be added as party. Admittedly they did not prefer any appeal. If the trial Court finds that the opposite party Nos. 1-4 have share in the suit land, they will get their due saham without disturbing the preliminary decree. The learned Senior Assistant Judge without applying his judicial mind dismissed the petition by a slipshod order. After considering the facts and circumstances of the aforesaid case, learned District Judge rightly allowed the Revisional application, therefore, there is no apparent reason to interfere with the same. For the reasons stated above the Rule is hereby discharged. Sakina Bibi and others Vs. Sakhina Begum and others (Civil) 18 ALR (HCD) 227-228
Order II Rule 17
The principle is that the nature and character of a suit do not change so long as the fundamental character of the suit remains the same. A suit for declaration of title, recovery of possession and/or for partition is essentially based on a common claim of the plaintiff which may call for aforesaid different relief or reliefs in different situations. Abdul Motaleb vs Md. Ershad Ali (A.T.M. Afzal J) (Civil) 2ADC 30
Order 2 , r 1-3
The plaintiff is obliged to frame his suit as far as practicable so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. [ PLD 1953 Lah . 131 ; PLR 1953 Lah . 341 ]
Frame of suit - Presence of necessary party - The suit having been brought for declaring and setting aside an order passed by the Board of Intermediate and Secondary Education , Jessore and for mandatory injunction for publication of a particular result , the Board is the appropriate authority which is the nece - ssary party in the suit . The suit is bad for non - joinder of the Board as a party. Therefore, the suit is not properly constituted and the Courts below committed an illegality in decreeing the same. [ 44 DLR 36 ]
Order 3 , r 1-3
Authority is required only where a person is to do an act which a party has to do in Court . Where an Advocate acted just as a witness of identification and to witness a transaction no written authority was necessary. ( 1988 CIC 2456 ]
This Order and the rules have no application in the matter of signature on the plaint because it is not an act in or to a Court . A plaint can be signed outside the Court . ( Anath Bandhu Guha & Sons Ltd. Vs. Babu Sudhangshu Shekhar Halder , 42 DLR ( AD ) 244 )
Provisions of Order III rule 2 empowers , amongst others , a duly constituted attorney to make appearance , applications , and / or to do acts for and on behalf of such absent party . ( Shah Alam ( Md ) Vs. Abul Kalam and others , 54 DLR 276 ]
Order III, rules 2(a)
The provisions of rule 2(a) of Order 3 of the Code does not apply where the plaintiffs themselves have described the defendant- appellant as the "i" (i.e. executant or agent) of the defendant No. 1-appellant. Moreover, the plaintiff cannot take advantage of his own conduct and is estoppels to deny his own description and admission of Motiur Rahman Howlader as the 'Karjokarok' of his brother, defendant No. 1 (who was then staying at abroad). 73 DLR (2021) 290
rule 2 ( a )
Power of attorney must be executed according to the provision of section 85 of the Act otherwise a person holding a power of attorney is not legally permitted to represent his principal under Order III rule 2 ( a ) of the Code . ( Ramesh Chandra Chowdhury Das Vs. Naresh Chandra Das Chowdhury , 52 DLR 227 ]
Order III rule 4 ( 1 ) & Order VII rule 11 Power - of - Attorney
Defect and disability When the power of attorney fails the embargo that follows will fall upon the lawyer and not on prosecution of suit by the principal . The disability attaches to the lawyer and not to the plaint . Court is to fix a date for steps to be taken by plaintiff when he may appear himself or by another recognised agent or by the same attorney after curing the defect . SSC Judge wrongly held that due to defect in power of attorney there was no cause of action for the suit , for it is theprincipal who has cause of action for the suit . Plaint can be rejected only when on the averments the plaintiffs is found not to have cause of action . Without rejecting the plaint the court has a clear duty to fix a date for the plaintiff to take steps . [ Anath Bandhu Guha & Sons Ltd. Vs. Babu Sudhangshu Shekar Halder , 42 DLR ( AD ) 244 ]
Orders III - IV rule 1 , Order VI rules 2 , 14 and 15 , Order VII rule 11
The rule does not specifically pinpoint as to who shall present the plaint . Plaint need not be presented by the plaintiff personally or by a person duly authorised by him by power of attorney . If a plaint is not properly signed or verified or presented , the court has always the discretion to allow the plaintiff to cure the defects at a later stage . These are defects of technical nature relating to matters of procedure curable at any time . Order VII rule Il is not at all attracted when there are defects in complying with the provisions of Order II or Order 6. ( Anath Bandhu Guha & Sons Ltd. Vs. Babu Sudhangshu , Shekhar Halder , 42 DLR ( AD ) 244 ]
Order III, Rule 4(2) -
The vokalatnama remains valid unless cancelled with the leave of the Court by the client or Advocate or until the client or the Advocate dies or until all proceedings in the suit are ended so far as regards the client. As soon as the all proceedings under Order IX Rule 13 came to an end, all proceedings in relation to the pre-emption case shall be deemed to have come to an end and the vokalatnama executed by the pre-emptor shall be deemed to have been terminated or lost its efficacy according to sub-rule (2) of Rule 4 of Order III of the Code of Civil Procedure. ... Ibrahim Khalique @ Ibrahim Salik =VS= Ayesha Bibi, [8 LM (AD) 156]
Order IV rule 1 ( b ) & Order V rule 2
Copy of the plaint is an integral part of the summons . To constitute a summons within the meaning of the provisions of the Code plaint must be accompanied with the summons either it be served by the process server or by registered post . [ Mohammadullah and others Vs. Md Shamsul A lam alias Md Alam , 55 DLR 428 ]
The date of institution of the suit is the date on which the plaint is presented to a proper Court. ( AIR 1956 Pun. 30 ]
The plaint has to be presented in the Court of the lowest grade competent to try the matter under Ss . 15 to 20. [ AIR 1929 Mad . 29 ]
Order V rule 1 - Petitioner entered appearance in the suit by filing a vokalatnama and filed written objection in the injunction matter but subsequently he did not file any written statement in the suit and consequently the ex parte decree was passed . The petitioner's plea that summons was not served upon him is not tenable at all . [ Jalaluddin ( Md ) and others Vs. Laily Begum and others , 48 DLR ( AD ) 163 )
The provisions of Order 5 , R. 1 do no apply to proceedings under Frontier Crimes Regulation , Section 8 , and a summons issued under this provision by an Assistant Political Officer before whom a civil dispute is pending is without lawful authority. [ PLD 1968 SC 131 ]
Order V, rule 19B(2)
The learned Assistant Judge did not give any finding regarding the service of summonses upon the pre-emptee- petitioners through post within the meaning of Order V, rule 19B(2) of the Code which is again fundamentally a question of fact. Be that as it may, PW1 in his evidence categorically denied the
fact of service of summonses of the case upon them through post. The learned Judge of the single Bench considered the fact that "the acknowledgement of the postal service were not returned" and disbelieved the service of summonses upon the pre-emptee-petitioners through post with the finding that "The postal service of the said notices upon the opposite parties after expiry of 30 days from the date of issuance has got presumptive value but there from (sic) it is very difficult to conclude concretely that those notices were duly served." When the pre-emptor failed to prove the service of summonses of the case upon the pre-emptee-petitioners through usual way as found by the learned Judge of the single Bench, it is not safe to rely upon the statutory presumption of serv- ice of summonses through post in the absence of the acknowledgement receipt, particularly when the learned Assistant Judge did not give any finding on the question. Moreso, the pre-emptor as PW1 did not at all claim service of summonses of the case upon the pre- emptee-petitioners though post. Md. Asgar Ali vs. Md. Shahidul Islam P.K (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 298
Order 5 Rule 20
By practicing fraud upon the Court by showing false report as to service of summons and on the basis of a forged karfa created in the name of a dead per- son. The plaintiff claimed the suit land by inheritance and possession thereon. Riaz Uddin Ahmed vs. Khondakar Khorshed Ali (S. K. Sinha J) (Civil) 7 ADC 392
Section 115(2), 115(4), Order 5, Rule 20
Partition of their ancestral property, Hazi Salahuddin and others vs. Zinnatan Nesa and others (Syed J.R. Mudassir Husain CJ (Civil) 4 ADC 882
Order 5, r 18-19B
Service effected on adult member of defendant's family in absence of defendant from his residence , when the service of summons is sought to be effected . In order to prove service of summons as per provision contained in Order V , rule 15 of the Code of Civil Procedure two conditions must be satisfied : ( 1 ) absence must be from residence : ( 2 ) if defendant is not found at his residence and there is no agent empowered to accept summons an enquiry has to be made to find out absentee defendant's adult male member residing with defendant and in process server's affidavit , these facts must be stated . Since process server concerned has not been examined nor service return of the summons been made exhibit , question whether aforesaid conditions stand satisfied or not does not arise for consideration . There is absolutely no evidence to show that Kasimuddin on whom the summons meant for opposite party defendant No. 20 was served , happens to be the male member of the opposite party's family and residing with him . [ Osiruddin Mandal Vs. Azizur Rahman , 39 DLR 403 ]
It is the duty of the process - server to take pains to find out the person to be served and for this purpose the should make inquiries not only of the relations of the defendant but also of the neighbours . [ AIR 1921 Cal . 638 ]
Where the defendant or the respondent challenge the correctness of the service of summons or notices , it is the defendant or the respondent ns the case may be , who has to rebut the presumption of service by adducing evidence to the effect that the same was not sent to the correct address or it was never tendered to him or there was no reason for him to refuse to accept the same . [ Abdur Rob Mollah Vs. Snhabuddin Ahmed and other 319-329 , 13 MLR 2008 ]
Rule 5 and 6 Order XXXVIII
Passed by the High Court Division in Civil Revision No.3067 of 2000 disposing of the Rule giving direction upon the appellant to take immediate steps to release two double Decker buses on payment of all duties and taxes and to sell and to keep out of the sale proceeds of TK.43,00,000.00 in fixed deposit to the credit of the trial Court till final de- cision of the suit. Dhaka Bank Limited vs. Monir Hossain (Mohammad Fazlul Karim J) (Civil) 6 ADC 402
Order 5, 41, Rule 19B, 21, Sub-Rule 2
The respondent opposite party No.1 failed to discharge his onus that inspite of issuing the summons through regis- tered post with acknowledgement due, as required under Sub-Rule 2 of the Rule 19B of Order V of the Code of Civil Procedure.
Whether the summons which was sent to the appellant herein, who was Respondent No.2 in Miscellaneous Appeal No.7 of 1989, by registered post with acknowledgement due and that return of the envelope by the postal peon with the endorsement "refused" was a good service in the eye of law or in other words when summons is sent by registered post with acknowledgement due and the postal peon returns the envelope with the endorsement "refused" it shall be considered that the summons was duly served on the addressee. If a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed and that presumption would apply with still greater force to letters which the sender has taken the precaution to register. and is not rebutted but strengthened by the fact that a receipt for the letter is produced signed on behalf of the addressee by some person other than the addressee himself.
As a general rule the Court will assume, unless the contrary is proved, that letters which are proved to have been mailed do arrive in ordinary course of post, and it is on those who dispute that inference to show the contrary.
When the summons is sent by registered post from the Court and if the postal peon returned the envelope in which the summons was sent to the defendant/respondent with the endorsement "refused" and if it is not established by the addressee, that the address to which the summons was sent was not his address or that postal peon did not tender the register envelope to him and as such he had no occasion to refuse the acceptance thereof, then it shall be considered that the summons has been duly served on the addressee.
So letter sent, notice or summons sent by registered post and if returned with the endorsement 'refused' shall be accepted as good and due service of notice of summons and the delivery of the letter to the person addressed unless the addressee rebut the presumption of good service of delivery of letter by adducing evidence. Abdur Rob Mollah vs. Shahabuddin Ahmed and others (Md. Ruhul Amin J) (Civil) 4 ADC 161
The summons are issued to inform the defendant of institution of suit in sufficient time before the date fixed for hearing and the procedure laid down for service of summons is aimed to guard against fraud and ensure that the proper person has been served and apprised of claim against him contained in the lis instituted in the Court. [PLJ 1990 Lah. 274]
It is the substance and not the form of the plaint which is to be looked at and considered and Mufussil Court's pleadings arc to be construed liberally. [Madhu Sudan Malakar vs Jobed Ali 127, 61 DLR 20097.
It is the substance and not the form of the plaint which is to be looked and considered and Mufussil Court's pleadings are to be construed liberally. (Zamir Uddin Ahmed Vs. Aiaul Huq and others, 49 DLR 622.
Order VI rules 1& 2 and Order VIl rule 1-The purpose of pleadings is to pinpoint the matters of controversy between the contending parties for enabling them to meet their respective claims. If at the trial the plaintiff fails to prove some of his allegations, that does not necessarily mean that the suit shall fail. The fate of the suit depends on the overall evidence and materials on record. /Sonali Bank Vs. Hare Krishna Das and others 49 DLR 282]
Order 6, Rule 4
For mandatory injunction directing the defendants to execute and register the sale deed. The Court inspite of the absence of the pleading of the defendant as to the non- genuineness of the document of the plaintiff is quite competent to make its decision on the basis of the result obtained upon scrutiny of the document When the plaintiff is seeking relief on the basis of certain document/documents as to which from the defendant's side no allegation of mis-representation, fraud, breach of trust, wilful default or under influence has been alleged, but the Court of arriving at the decision as to the relief sought in the suit either in the affirmative or in the negative while scrutinizing the document on the basis of which relief has been sought in the suit and in the course of such scruting noticed the fact which makes the docu- ment/documents, which is/are the basic document (s) of the plaintiff, non-genuine or in other words fabricated by dis- missing the suit, in such state of the matter, in our view, finding arrived at the decisions made by the Court would not be unsustainable. Government of the People's Republic of Bangladesh represented by the Deputy Commissioner, Rajshahi and others vs. Md. Abdul Jabbar Sheikh (Md. Ruhul Amin J) (Civil) 4 ADC 182
Pre-emption Case to pre-empt are co- sharers in the disputed jote by inheritance along with others. The learned Counsel appearing on behalf of the leave petitioner contends that the Single Bench of the High Court Division committed error of law in not holding that pre-emptor petitioner No. is estopped by her own conduct as she herself negotiated the sale of the suit land to the leave petitioner, as such being aware of the transaction she can- not claim pre-emption of the disputed land. In such view of the matter the pre- emption case is barred by principle of waiver, acquiescence and estoppel. Md. Tofazzal Haq Chowdhury vs. Rajaberanessa and others (Mohammad Fazlul Karim J) (Civil) 4 ADC 190
Order VI, Rule 4- A general allegation of collusion implying some kind of fraud is not enough without particulars. Specific pleadings in support of fraud or collusion as per Order 6 Rule 4 are required to be made and those allegations of fraud and collusion must be substantially proved by the party making them....Alimuzzaman (Reza) (Md.) -VS- Masudar Rahman(Md.) @Babul, [8 LM (AD) 164]
Order VI rule 2, Order XVIll rule 17
The Code has given enabling power to the Court to recall a witness. All the evidence and documents under the possession of the plaintiff to be relied upon at the time of hearing of the suit need not be mentioned in the pleading [Registrar (Deputy Secretary) Vs. Sahrab Jan and others, 48 DLR 214.
The object of pleadings is lo bring parties to definite issues and to prevent surprise at the hearing. Ayesha Khatun and others Vs. Rabindra Chandra Saha and others (Civil) 641, 58 DLR 2006]
The object of the provision of Order VI, rule 4 of the Code of Civil Procedure is, that the opponent against whom one or more than one of the allegations as stated hereinbefore while made is not taken by surprise when he at the trial contests the claim of the party who is alleging the one or more than one of the aforementioned situations against his opponent is seeking the relief. The law requires the parties who make the one or more than one of the aforesaid allegations against his opponent to give the particulars since the particulars thereof is known to him. [Bangladesh represented by the Deputy Commissioner vs Md Abdul Jabbar Sheikh (Civil) 105, 59 DLR 2007]
contradictory to the stand taken in the earlier written statement filed on 30.03.1997. It was contended that defendant No.1 could have filed an application under Order 6 Rule 5 of the Code of Civil Procedure for filing further and better statement or pray for an amendment of the written statement under Order 6 Rule 17 of the Code but instead the defendant could not file a separate and independent written state- ment with the averments which were contradictory to the earlier written state- ment. Therefore the subsequent written statement was liable to be struck off.
"৫ বাদীর আরজির তপসিল বর্নিত নালিশী সম্পত্তি বিবাদী ০৮-০৩৯৯৪ ইং তারিখে একচ্ছত্র মালিক থাকাবস্থায় বাদীপক্ষকে দান করে এবং দখল ও মালিকানা সম্পর্কিত যাবতীয় কাগজ পত্র বুঝাইয়া দেয়। অতঃপর তপসিল সম্পত্তি ভোগ দখল ও খাজনা ট্যাক্স ইত্যাদি প্রদান করা বাদীর একক কাজ ও অধিকার এবং উক্ত অধিকার সংরক্ষন করাও বাদীর একক দায়িত্ব ও কর্তব্য। Abdul Wadud Khan vs. Anwaruzzaman and another (Amirul Kabir Chowdhury J) (Civil) 4 ADC 271
Though the party making the allegations of fraud or forgery of certain documents is required under Order 6 rule 4 of the Code of Civil Procedure, to specifically mention the particulars thereof in his pleading, the court is not precluded from scrutinising such document to ascertain the genuineness or otherwise of the same even if the particulars of forgery are not stated in the pleadings. /Government of the People's Republic of Bangladesh,, represented by the Deputy Commissionr, Rajshahi and others vs Md Abdul Jabbar Sheikh 119- 128, 14 MLR 2009]
General allegations in pleadings, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. [1988 SCMR 1703]
In suits on the basis of fraud, the allegations of fraud must be clear, definite and specific. The court will not allow either party to make any departure from the earlier pleadings set forth in the plaint or written statement. Bangladesh Vs. Md Aslam, 44 DLR 897.
The departure in the evidence from the plaint has not been of such a dimension that the defendants were unfairly taken by surprise. Both the parties had all opportunities to lay before the court a(1 their evidence respecting title and possession of the suit land. In such circumstances the operation of Order VI rule 7 of the Code will not come in. [Kochi Mia & Khocha Mia Vs. Surj Mia being dead his heirs Md. Fazlur Rahman and others, 51 DLR (AD) 57.
An application for amendment of the plaint should not be rejected on the ground that the preliminary decree has already been drawn up, and that re-opening of the suit and adducing further evidence will cause inordinate delay in disposal and hardship to the parties. [Hanif Ali (Md) Vs. Hajera Khatun and others, 55 DLR 17]
Unnecessary parties and prayers may be struck out by the court from an election petition by an amendment. [ldrish Ali Bhuiyan (Md) Vs. Dr Alauddin Ahmed and ors, 55 DLR 19)
An amendment may be just but cannot be allowed if it is not necessary for decision in the suit. [Bamgladesh Shipping Lines Ltd. Vs Commissioner of Customs Chiragong and others, 55 DLR 166]
Amendment of plaint seeking to convert the suit of one character into another and to substitute one distinct cause of action into another depriving the other party of his right accrued to him by lapse of time cannot be allowed. [Government of Bangladesh and another Vs. Shafr A Chowdhury and another, 55 DLR 228]
Order VI, Rule 7- Evidence beyond pleadings cannot be considered by the Court Rule 7 of Order VI of the Code of Civil Procedure for expunging the statement of the OPWI and excluding exhibit 'kha' from the list of exhibits alleging that those were admitted in evidence though those were beyond the pleadings.
It is the settled principle that if any party adduce evidence beyond the pleadings is liable to be ignored. Parties cannot be permitted to lead evidence beyond their pleadings and leading of the evidence beyond the pleadings is unwarranted and conclusion based on such evidence cannot be approved. Normally, evidence beyond pleadings cannot be considered by the Court. ...Agrani Bank Ltd., Dhaka =VS= Md. Abdus Sobhan, [10 LM (AD) 316]
Order VI Rule 17- Praying for declaration of title to the property described in 'A' scheduled of the plaint and also for delivery of khas possession of the property described in schedule 'B' of the plaint upon eviction of the defendants and/or persons claiming through them and also for permanent injunction restraining the defendants from making any construction and/or changing the nature and character of the land. Praying for amendment of the plaint stating, inter alia, that due to over sight at the time of filing of the suit the learned lawyer of the plaintiff made some mistakes and as such the plaint should be amended......S.K. Khalilur Rahman =VS= Mrs. Meherun Nesa, [4 LM (AD) 340]
Order VI, rule 17- Amendment of the plaint- Mere omission/deletion and insertion of some new facts as indicated hereinbefore, in no way, can be construed to change the nature and character of the plaint or the suit. ...Salahuddin Khan =VS= Md. Abdul Hai Bahar, [8 LM (AD) 133]
Order VI, rule 17 r/w sec. 114 & 115- Plaint can be allowed when the proposed amendment will not change the nature of the suit It has been established in a number of cases by the Apex Court of the sub-continent that when there is specific provision in the Code for a matter to be decided a Court should not exercise the inherent power to dispose of the matter.
We are of the view that the order dated 11.08.2003 passed by the learned Joint District Judge in recalling its earlier order dated 08.06.2003 on an application under Section 151 of the Code is not tenable in law. The aggrieved party in all fairness should have invoked either review jurisdiction under section 114 or revisional jurisdiction under Section 115 of the Code of Civil Procedure. Therefore the High Court Division has erred in law in not holding that the order dated 11.08.2003 passed by the learned Joint District Judge is not tenable in law and as such by the impugned order dated 11.04.2005 passed by the High Court Division in Civil Revision No.3951 of 2003 Rule would have been made absolute.
However amendment of the plaint can be allowed when the proposed amendment will not change the nature, feature and character of the suit. In the instant suit if any party is aggrieved by the order passed by the trial Court, he may seek necessary relief invoking the specific provision of law before the competent Court. The appeal is allowed without any order as to cost and the impugned judgment and order is set aside. ... Harun-or-Rashid =VS= Gulaynoor Bibi, [8 LM (AD) 114]
Order VI Rule 17- Amendment of the plaint It is now well-settled that the amendment of the pleadings could be allowed at any stage of the proceedings for the purpose of determining the real question of controversy between the parties, but it could not be allowed, if, it changed the nature and character of the suit, or if the prayer for amendment had became barred by lapse of time and a right had accrued to the other side.
That the High Court Division wrongly came to a finding that the proposed amendment would change nature and character of the suit although addition of new fact cannot in any way change the nature and character
Therefore, the judgment and order passed by the High Court Division affirming the judgment and order passed by the learned District Judge cannot sustain.
Admittedly the suit filed in 2000 is yet to be disposed of by the trial Court. Such being the state of affairs we do not find any point dragging the case before this Division in an interlocutory matter. And the order of trial Court allowing amendment is restored. The trial Court is directed to dispose of the suit as expeditiously as possible. ...Akram Ali Pk.(Md.) VS Yasin Ali(Md.), [9 LM (AD) 373]
Order VI, Rule 17- Amendment of the plaint- The amendment seeks to enhance the amount claimed in the plaint. At the end of the trial of the suit, the plaintiff will be entitled to a decree only if he is able to satisfy the Court in respect of his claim and will recover the amount which he is able to prove by adducing satisfactory evidence. The defendants will have every opportunity to disprove or minimise the claim of the plaintiff. Bangladesh Chemical Industries Corporation =VS= M. V. THOR NEXUS, [4 LM (AD) 72]
Order VI, Rule 17- Amendment of the plaint- The proposed amendment would not change the nature and character of the suit and it was not a new fact since it was earlier stated in the plaint that Tk.95,000/- was given in cash and Tk.3,00,000/- was paid by cheque. In the amendment petition, only the name of the signatory of the cheque was inserted. So, neither character of the suit is being changed nor any new fact has been incorporated in the amendment petition, and as such the appeal is liable to be dismissed. In the instant case the facts alleged in the plaint indicated that payment was made by cheque as well as by cash, and the amendment simply named the person, who had issued the cheque. Such an amendment in our view does not change the nature and character of the suit. We do not find any illegality or infirmity in the impugned judgement. Accordingly, the appeal is dismissed, without however, any order as to costs. ...Sree Nilu Banerjee =VS= Swapan Sarker, [5 LM (AD) 127]
Order VI rule 17 & Order XXIl rule 9
The provisions for amendment of pleading has no bearing in the matter of substitution of legal representative of a deceased party and it is not to be used as subsidiary provision of the Order XXII, Civil Procedure Code as a device to overcome the effect of bar of abatement in the suit. Saleha Khatun and others Vs. Fetema Hajura and others, 52 DLR 437]
Addition of a subsequent transferee would not prejudice the plaintiff rather it would help him to get possession of the suit holding. [Akram Hossain (Md) Vs. Sahera Khatun (Civil) 640, 57 DLR 20057.
If the material fact is not pleaded, evidence or submission on it cannot he allowed. [Nil Sena Singh Vs. Radha Mohan Singh (Civil) 329, 58 DLR 2006]
In a suit for partition ifa prayer for declaration of title is added that can under no stretch of imagination change the nut urn and character of the suit. (4limuddin Vs. Abdull Kabir (Civil) 240, 58 DLR 2006.
An amendment if allowed it can take effect from the date of institution of the suit-Therefore a prayer for declaration of title could not be held to be barred by limitation. [Alimuddin Vs. Abdul Kabir (Civil) 240, 58 DLR 2006]
The plaintiff wants to change the language of the prayer 3(ka) of the plaint for proper and complete adjudication of the suit. The proposed amendment was explanatory and elucidative of facts already asserted in the plaint. [Nasima Akhter Bomu Vs. Abu Taher Masud (Civil) 370, 58 DLR 2006]
The proposed amendment of the written statement and the averments of the additional written statement give completely a new story contrary to the earlier written statement-The opposite party has attempted by the proposed amendment to introduce a new fact with malafide intention by which the nature and character of the suit or the pleading will be changed or altered. Afsal Kham (Md) Vs. Md Azmal Khan (Civil) 43, 59 DLR 2007).
In a participation suit all the parties stand at par and there is no distinction between the plaintiff and defendant and thus anybody adversely affected by the proposed amendment car j oppose the same. Now it is well settled that the amendment of written statement can be allowed provided it is not malafide, belated and it relates lo the point in controversy. [Afzal Khan (Md) Vs. Md Azmal Khan (Civil) 43, 59 DLR 2007]
In the instant case, the amendment sought for will not change the character of the suit or the plaint; rather such amendment is capable of determining the real question in controversy. [Shafiqul Islam Vs.
Mustafiz (Civil) 42, 60 DLR 2008]
In a suit for declaration of title and recovery of possession of part of the suit land, the apex court held the amendment sought for incorporating the alternative prayer for partition as perfectly justified since the same docs not change the nature and character of the suit, rather it would be necessary for effective adjudication of the dispute between the parties. The courts below misunderstood the suit as one under section 9 of the Specific Relief Act, 1877. Shafiqul Islam Chowdhury (Md.) and others Vs. Mustafizitr Rahman and others 147-150, 13 MLR 2008]
Order 6, Rule 17
For declaration of title and Khas possession by evicting the defendants on removing Obstructions Md. Shafiqul Islam Chowdhury vs. Mustafizur Rahman (Md.joynul Abedin J) (Civil) 5 ADC 329
For declaration of title and confirmation of possession to.......(2) Md. Abdul Bari vs. Md. Abdul Aziz(M. M. Ruhul Amin J) (Civil) 5ADC 332
Order 6, 41, Rule 17, 27
Decreeing the suit declaring the suit property to have been purchased in the benami of the defendant A.H. Md. Ali Haider Quoraishi VS. Shaheen Quoraishi and others (Syed J.R. Mudassir Husain CJ) (Civil) 5ADC 451
A 'salish' was held and as per award of the 'salish' plaintiff got her name mutated in the S.A. record and thereupon paying rent, that as the S.A. record was pre- pared wrongly in the name of Kamaruddin, as such to avoid future complications the plaintiff is con- strained to file the suit. Md. Baker Mia and others vs Shamsun Nahar Begum (Md. Ruhul Amin J) (Civil) 5ADC 472
Amendment of plaint at the appellate stage Amendment of plaint can be made at the appellate stage provided the same is not barred by limitation. The amendment of the plaint in the instant case has been rejected on the ground of limitation and vagueness. [Abdul Wahud and others Vs. Abdul Wahed and others 107-108, 14 MLR 2009.
The defendants did not agitate co-ownership in their pleadings nor did they adduce any evidence to that effect and their defence was based on exclusive ownership and possession but the claim of co-ownership was beyond the pleadings-No court can pass any order touching upon a point in its pleading and the observation of the trial Court regarding possession of the defendant can at most be termed obiter as those were no more than some passing remark. Pradhanid@ Abul (Civil) 147, 59 DLR 2007] [Ali Hussain Faraji vs Abdul All]
A decree passed by a Court of first instance is appealable and not revisable-The instant civil revision is not maintainable. [Ahdur Rashid Salam Vs. Md Moniruzzaman (Civil)298, 58 DLR 2006)
The learned Advocate-on-Record submitted that the appellate Court was in eror in holding that the land of patta dated February 18, 1922 corresponds to the land of Plot No. 240. The contention is of no merit as it is seen from the materials on record, and particularly from the judgment of the appellate Court, which court on detailed discussions of the evidence arrived at finding that the parties to the suit admitted that the land of patta dated February 18, 1922 is the land of Plot No. 240. It may be mentioned the land of patta dated February 18, 1922 was described by boundaries and the explanation as to that was that at the relevant time the land was not divided into plots and this fact is not disputed by the parties to the suit. [Daliluddin Sheikh vs Alek Sheikh alias Abdul Malek Sheikh (Civil) 32, 14 BLC 2009]
Failure to give specification of suit land-the plaintiffs having failed to comply with the mandatory requirement of law in giving description sufficient to identify the suit land, they are not entitled to any decree even if they Succeed in proving their title. [Noor Mohammad Khan Vs. Bangladesh, 42 DLR 434]
Identification of the suit property
The lower appellate Court on scrutiny of plaint schedules came to the finding that the description of the suit land given by boundaries is quite identifiable and not vague and thereby rightly revised the trial Court's finding on identification, The suit being one for declaration of Rule 10 & Order XX rule 5-The defendants at the earliest opportunity raised the question of undervaluation of the suit and, as such, a specific issue to that effect ought to have been framed. [Abdus Samad and others Vs. Md Gafur and others, 56 DLR 297]
Jurisdiction to entertain suit-A corporation can be said to carry on business at the place where it has a branch only in respect of a cause of action which arises wholly or in part at such place. If no part of the cause of action accrues at the place of the branch officer the mere fact of the corporation having a branch office at the place will not give the court jurisdiction to entertain a suit. [Khondaker Mahtabuddin Ahmed, Vs. Matin Tea and Trading Company, 46 DLR (AD) 92]
It is a well settled legal proposition that in considering an application or a prayer made by a party the court will sec the contents of the application and it can give a relief under the appropriate law even if a
wrong provision of law is quoted, the Subordinate Judge was wrong in rejecting the application for rejection of the plaint on the view that no provision of law was mentioned. [Abul Kashem-al-Asad vs Abdul Muhib (Civil) 502, 61 DLR 2009]
It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. It is also well established that even if jurisdiction is so excluded the Civil Courts have jurisdiction to examine cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. [Salima Akhter Niluma Banu Vs. Shahin Shakhider (Civil) 47, 60 DLR 2008.
Fresh partition suit can be instituted after the previous one was dismissed for default in view of the legal position that the possession of one co-sharer is the possession another co-sharer in the suit property and the cause of action is recurring one. Civil Revision No. 217 1 of 2005, 14 MLR 2009.
The question of limitation in a suit is a mixed question of law and fact which can be decided only at the trial on taking evidence. In view of the reliefs prayed in the suit, the plaint cannot be rejected. [Shahabuddin (Md) de others Vs. Habibur Rahman and ohers, 50 DLR (AD) 99]
The plaint could be rejected only when the court comes to the conclusion that even if all the averments made in the plaint are taken to be true still then the plaintiff would not be entitled to any relief at all. Mohsena Begum Vs. Abdus Sattar, 50 DLR 29]
The application made under section 14(2) of the Arbitration Act is not a plaint. The application of the petitioner under Order VII rule 11 of the Code for rejection of such application is wholly misconceived. [Dhaka Leather Compary Ltd. Vs. Sikder Construction Ltd. and another, 54 DIR 357]
When the nature of transaction becomes doubtful on the specific allegation made by the pre-emptor then the matter is required to be tested by adducing evidence in order to ascertain the nature of transaction and to decide the case properly. [Alfazuddin Mollah and others Vs. Md. Almas Chokder and anr., S6 DLR (AD) 179]
For the ascertainment of the cause of action court is required to read the plaint in its entirety. Sunder Ali being dead his heirs Abdul Hannan and others Vs. Md Serajul Islam Sarker & others, 56 DLR (AD) 210]
It is now well settled by good authorities that a proceeding is though premature on the date of filing but with the continuance of the proceeding becomes matured, such question of immaturity loses all defects and becomes cured. Sardar Jan Mohammad and another Vs. Lutfannessa and others, S6 DLR 514.
The question whether the plaint is liable to be rejected being barred by law must be apparent from the statement made in the plaint itself and not from the written statement or any other material other than that has been put in the plaint. [Abdul Malek Sawdagar Vs. Md Mahbubey Alam and others (Civil), 57 DLR 2005.
No final decision was taken in respect of the change of the polling stations when the suit was filed.. Therefore, the plaintiff had/has no cause of action to file the suit and, as such, the provision of Order VI, rule 1 1(a) of the Code of Civil Procedure is attracted. [Sazzadul Hague Liku (Md) Vs. Border Ánwar Hossain (Civil) 273, 57 DLR 2005]
it appears that the Judge of the Artha Rin Adalat in question is Joint District Judge appointed in the post by transferring him by notification under the Order of the President and in consultation with the Supreme Court and the notification being published in the Gazette. There is thus no substance in the submission of the petitioner as 10 absence of jurisdiction of the Judge to hold the post. [ARA Jute Mils Lid Vs,. Janata Bunk (Civil) 126, 58 DLR 2006]
The bar of section 56(k) of the Specific Relief Act or non-production of document under rule 14 of Order VI) has no manner of application in considering petition under Order VII, rule 11 of the Code. Nor on point of maintainability of the suit, the plaint is liable to be thrown away in inline as the question may be agitated in framing un issue to the point. Similarly, for alleged vagueness in the schedule, if any, the plaint is not liable to be rejected. [Muhamad Ali Vs.. Lt Col (Retired Habibullah
Bahar (Chil) 245, 58 DLR 2006]
Provision of section 6 of Artha Rin Adalat Ain, 1990 bars filing of separate suit to set aside exparte decree passed by Artha Rin Adalat. Only available scope for selling aside ex parte decree passed by Artha Rin Adalat in Artha Rin case is to file miscellaneous case under Order 1X. rule 13 of the Code of Civil Procedure by deposit of 50% of decretal anount. It clearly appears that TS 194/2002 was filed separately to set aside ex parte decree of Artha Rin Adalat in order to avoid deposit of 50% of decretal amount and filing miscellaneous case under Order 1X, rule 13 of the Code of Civil Procedure as has been made available under said Act of 1990. [M Ttiriquliah Sikdor Vs. Sonali Bank (Civil) 695, 59 DLR 2007]
Section 73 of the Act empowers the District Judge in entertain a suit relating to infringement of Trade mark or otherwise relating to any right in a Trade mark i.e. passing oil action. A perusal of the plaint shows The plaint discloses statement of facts relating to infringenent of trade mark 'Dominous Pizza' along with an action of passing oil", {Dominous Pizza s Domino'Pizza Inc (Civil), 780, 61 DLR (2009)
Order 6, rule 16, Section 115(1)
Praying for declaration that he became owner in possession of the suit land by dint of an oral gift made on 08.03.1984 by the defendant No. 1 in his favour. The subsequent written statement filed on 30.1.1997 as it was completely
Order 6, Rule 17
Declaration of title to the suit land on the averments Since the plaintiffs are found in possession of the suit land there is no bar to allow the prayer for declaration regarding joint possession of the plaintiff with defendants No.7-10 along with declaration of their title; if the prayer of the plaintiffs for amendment of the plaint is not allowed they will be deprived of their legitimate right of enjoyment of their valuable properties; it is settled principle of law that amendment of the pleading can be allowed at any stage of the proceeding provided that the amendment, if allowed, would not change the nature and character of the suit and that amendment is necessary to effectively decide the real controversies between the parties in the suit. Hemayet Ali Shaikh and others vs. Ramesh Chandra Mondal (Md. Tafazzul Islam J) (Civil) 4 ADC 866
Order 6, Rule 7
At the time of trial the plaintiff made out a case that his father had taken the lease for his (plaintiff's) benefits and interest during his infancy. The departure in the evidence from the plaint has not been of such a dimension that the defendants were unfairly taken by surprise. The defendants suffered these evidence to be taken. Evidently this has caused no prejudice to the defendants. Both the parties had all opportunities to lay before the court all their evidence respecting title and possession of the suit land. In such circumstances the operation of order 6 rule 7 of the Code of Civil Procedure will not come in. Kochi Mia @ Khocha Mia vs Suruj Mia ors. (Bimalendu Bikash Roy Choudhury J Civil) 2ADC 560
Order VI, Rule 17
The prayer for amendment of law plaint can be made at any stage of the proceeding in order to decide the matter in controversy between the parties. Md. Sirajuddin vs Mohibunessa 1 (Civil) ADC 136
Order VI, rule 2-Order VI, rule 2 of the Code, which does not require the names of witnesses to be specified in the plaint. Asgor Ali vs Noorjahan (Civil), 73 DLR (AD) 119
Order VI, rule 17-Amendment of plaint was filed after lapse of 10 years of institution of the suit and that the trial Court accepted the amendment after long lapse of time. Admittedly, as soon as gazette notification bas been published in the official gazette, the acquired property including the suit property vested in the Government free from all encumbrances and the Government is at liberty to use the property for any other purpose and the original owners lost their right over the acquired land for good. The suit itself was not maintainable from its very inception. The plaintiff cannot take the plea that the suit is maintainable because of malafide, Chairman, Bangladesh Agricultural Development Corporation (BADC) vs Abedunnessa (Civil), 73 DLR (AD) 196
Order VI, rules 17 read with Order XXIII, rules 1 & 2 Plea does not stand to reason because the wrong statements made in the plaint can be corrected by way of amendment which will not change the nature and character of the suit. The plaintiffs may also pray for consequential relief by way of amendment on payment of ad valorem court fee and for addition of such relief, withdrawal of the suit and appeal with the permission to sue afresh is not at all necessary. Government of the People's Republic of Bangla- desh vs Babor Ali Gazi (Civil), 73 DLR (AD) 3
Order VI, rule 17
On 16.05.2006, the petitioners filed an application under Order VI Rule 17 of the Code of Civil Procedure before the learned Senior Assistant Judge, First Court, Bogra for amendment of the plaint. They stated, inter alia, that owing to inadvertence some important facts have not been incorporated in the plaint. Not only correction of the description of the names of some of the plaintiffs is necessary but striking out the name of plaintiff No.61 is also essential. Md. Akram Ali Pk. vs. Md. Yasin Ali (Syed Mahmud Hossain J) (Civil) 9 ADC 703
Code of Civil Procedure [V of 1908]
Order 7, Rules 1 (e) & (g)-Whether a suit is liable to be dismissed for making a wrong/inappropriate prayer?
It is the requirement of the law, namely, Order VII, Rules 1 (e) & (g) of the CPC that the plaintiff must state his/her grievance in the plaint and, further, the plaintiff must seek the aspired relief.
The law binds a plaintiff and defendant to pray for relief in specific terms. In view of employment of the words ...... the plaint shall contain ....... in Order VII, Rule 1(g) and the words in Order VII, Rule 7 ....... every plaint shall state specifically the relief which the plaintiff claims either simply or, in the alternative ........', the first presumption by this Court, without searching for and resorting to any case- laws, is that the above provisions are to be applied mandatorily.
When a grievance or complaint or dispute is placed before a Court, the Court's primary duty is to consider its substance, which may be derived from not only the averments and prayer, but also from the evidence led by the parties at the trial. Because, considerations of form cannot override the legitimate considerations of substance. From the averments and/or prayer (pleadings), if it transpires that a plea is not specifically made but it is covered by an issue by implication, and it appears to the Court that other side would not be prejudiced; in other words, it within the knowledge is of the other side that the said plea was involved in the trial, then, the mere fact that the plea was not expressly taken in the pleadings would, in my opinion, not necessarily debar a party from relying upon it if it is satisfactorily proved by evidence.
If the plaintiff does not make proper prayer in the plaint, the suit must not be dismissed on the said ground, rather it would be the duty of the Court to frame appropriate issue's on the basis of the pleadings and submissions put forwarded by all the parties to the suit and proceed with the suits towards its effective disposal. Md. Akram Ali and others -Vs.- Khasru Miah and others (Civil) 19 ALR (HCD) 124-148
Code of Civil Procedure [V of 1908)
Order 7, Rule(1)(e)-Whether for naming a suit wrongly as "Title Suit instead of 'Partition Suit', the said suit is
liable to be dismissed? If the plaintiff or the engaged Advocate fills in the line 'class of suit' engraved in the 'slip of paper by taking into consideration the reason/purpose of institution of the suit, which are outlined in Section 16 of the CPC, in other words, if the 'classification of suit is written in the 'slip paper' on the basis of 'the facts constituting the cause of action" and "the relief which the plaintiff claims for', as required by the law, namely, Order VII, Rule(1)(e) and Order VII, Rule(1)(g) respectively, to be set out in the plaint, then, the plaintiff's or the Advocate's obligation is deemed to be fulfilled. However, in compliance with the prevailing practice, when the plaintiff Advocate names the suit as Partition Suit, Title Suit, Money Suit etc and, subsequently, upon carrying out scrutiny by the Sheristadar or by the Court if it appears to be mismatched with the class of the suit, usually, the Sheristadar of the Court or the learned Judge puts a befitting name relying on the plaint's averments plus prayer. It follows that when a suit is named by the plaintiff or Advocate as Partition Suit or Title Suit or Money Suit or Other Class Suit etc, s/he is required to do so by taking into consideration the averments regarding grievances for institutions of the suit in tandem with the prayers made therein. However, given that neither is there any coherent customary practice for designating a suit with a particular name, nor is there any mandatory legal provision requiring that a suit must be marked by a particular name, therefore, in my view, if a plaint is filed with a name mismatching with the plaint's averments and prayers i.e. with a wrong/unsuitable name, it cannot be a ground for non- maintainability of a suit. Md. Akram Ali and others -Vs. Khasru Miah and others (Civil) 19 ALR (HCD) 124-148
Order 7 Rule 3
For decree of declaration of their right and title in the Kha schedule property against the defendants stating that the schedule 'Ka' land of the plaint was owned by late Majnani Bewa. The suit lot-1 property was under her Khas pos- session, while the 1st-2 property was enjoyed by her by granting Korfa Pattan and the land was recorded in C.S. Khatian in her name accordingly......(2) Md. Rafiq Uddin vs. Md. khorshed Ali Mollah (Mohammad Fazlul Karim J) (Civil) 5 ADC 115
Order VII, Rule 3-It is clear that the plaintiff mentioned the number of the C.S. and the S.A. Khatians and also the plot numbers of the lands in the suit and thus there was full compliance with the previsions of Order VII, rule 3 of the Code. And since no fraction or portion of the lands of the two plots was claimed, there was no necessity of giving any chauhaddi or boundary of the suit plots. ..... Karim Khan -VS- Kala Chand, [3 LM (AD) 236]
Code of Civil Procedure [V of 1908]
Order 7 rule-3-Where the subject matter of the suit land is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement of survey, the plaint shall specify such boundaries or numbers. Tara Sheikh and others. -Vs- Eshaque Mridha and others. (Civil) 19 ALR (HCD) 321-325
Code of Civil Procedure [V of 1908]
Order 7, rule 3-Whether there can be a simple declaration of title where only a portion of the land in a plot is claimed by way of inheritance and that portion is not specifically identified in accordance under Order VII, rule 3 of the CPC.
The Appellate Division held that it is by now an established principle of law that in a suit for permanent injunction or where there is a prayer for recovery of possession, there has to be specificity about the land claimed by the plaintiffs. [see Moharram Ali and another Vs. Mohammad Madhu Mia and others, 41 DLR (AD) 92]. With respect the Appellate Division is in full agreement with that view. However, where there is no question of dispossession or injunction, the Appellate Division is of the view that the case of Moharram Ali cited above, can be distinguished. For what it may be worth, the plaintiffs may get a declaration that they have title over a given quantum of land which was inherited from the recorded tenant. In the facts of the instant case, the defendants appear to have purchased land from a different Khatian to that claimed by the plaintiffs. Hence, there appears to be no conflict of claim. If and when any question arises over possession or dispossession then the parties can file a suit for partition, if so advised. In view of the discussion above, the Appellate Division finds that the High Court Division erred in dismissing the suit upon reversing concurrent findings of the Courts below. Accordingly the appeal is allowed. Sufala Rani and another -Vs- Balai Mondal being dead his heirs: Mahesh Mondal and others (Civil) 16 ALR (AD) 84-87
Code of Civil Procedure [V of 1908]
Order 7, rule 3
A mere look at the schedules to the plaint from where the plaintiffs were allegedly dispossessed, it is apparent that those were totally vague and unspecified and the description of the suit land did not fulfil the requirement of the mandatory provisions of Order VII, rule 3 of the Code of Civil Procedure and that being the state of the suit land, the plaintiffs were not entitled to get any relief in the suit.
The Appellate Division held that admittedly, the suit was for recovery of khas possession simplicitor, so it was obligatory upon the plaintiff to specify the land by giving chouhuddi as well as by giving sketch map. The Appellate Division has gone through the schedules to the plaint. In the plaint as many 6 schedules, namely, "Kha' to 'Chha' were mentioned from which the plaintiff was allegedly dispossessed. Thus, a mere look at the schedules to the plaint from where the plaintiffs were allegedly dispossessed, it is apparent that those were totally vague and unspecified and the description of the suit land did not fulfil the requirement of the mandatory provisions of Order VII, rule 3 of the Code of Civil Procedure and that being the state of the suit land, the plaintiffs were not entitled to get any relief in the suit, the High Court Division rightly allowed the appeal and dismissed the suit. Therefore, the Appellate Division finds no reason to interfere with the impugned judgment and decree. Accordingly, the appeal is dismissed. M. Delwar Hossain - Vs. Mohammad Ali and others (Civil) 21 ALR (AD) 134-138
Order VII, Rule 11- Rejected the plaint The abandoned character of the property having been established all the way to this Division and the challenges of the Government as well as the present respondent having been unsuccessful, there can be no doubt about the legality of the gazette notification dated 02.12.2004 and hence we find that the trial Court rightly rejected the plaint of writ-respondent No.1 under Order VII, Rule 11 of the Code of Civil Procedure. We find that the judgement and order of the High Court Division is not in accordance with law and accordingly the impugned judgement and order is set aside and the judgement and decree dated 24.03.2006 passed by the learned Joint District Judge, First Court, Mymensingh in Other Class Suit No.03 of 2004 is upheld. The appeal is allowed. ...Javed Alam(Md.) =VS= A.F. Alfajuddin Ahmed, [6 LM (AD) 1]
Order VII, Rule 11- Section 17A and 17B of the Registration Act shall apply only to the registration of the Bainanama deed, but the plaintiffs have not claimed to have registered deed of sale on the basis of said Bainanama. Therefore, it does not apply to the instant suit; there is no ground to reject the plaint of the plaintiffs. The trial Court rejected the application under Order VII, Rule 11 of the Code of Civil Procedure on the ground that the suit was brought by the plaintiffs only in respect of protecting their possession over the suit land and not for specific performance of contract and hence the provisions of sections 17A and 17B do not apply to the instant suit. ... Kari Moulavi Abdul Gafur VS Mohammad Nurullah, [6 LM (AD) 190]
Order VII, rule 11-Government is not bound by the decree passed in a suit for specific performance of contract and, as such, rejection of plaint would not improve the case of the writ- petitioner. The Government can still claim that the disputed property is an abandoned property although a suit by the Government in that respect is barred. Bangladesh vs Md Abdul Mannan (Civil) 71 DLR (AD) 338
Order VII, rule 11-In determining whether a plaint is to be rejected, the Court will take only the plaint and documents filed therewith into consideration and not what has been urged by the defendant in a petition or in the written statement. Executive Engineer, Roads and Highway Department (RHD), Road vs Md Nurul Islam (Civil) 71 DLR (AD) 349
Order VII, rule 11-The decision of the Government to release the property from the "Ka" list of abandoned properties by Gazette has put a final seal on the matter. The abandoned character of the property having been established all the way to this Division and the challenges of the Government as well as the respondent having been unsuccessful, there can be no doubt about the legality of the gazette notification and hence we find that the trial Court rightly rejected the plaint under Order VII, rule 11 of the Code. Javed Alam vs AF Alfajuddin Ahmed 71 DLR (AD) 419
Order VII, rule 11 & Section 151- It is true that the provisions of rule 11 are not exhaustive in the matter of rejection of plaint and in exceptional situation a plaint can be rejected under section 151 of the Code even if it does not come within the mischief of this rule. ...Salahuddin Khan VS Md. Abdul Hai Bahar, [8 LM (AD) 133]
Order VII, rule 11 r/w section 151-
The trial Court shall be at liberty to decide the issue of maintainability along with the other issues involved in the suit on the evidence to be adduced by the parties at the trial In the plaint clear averment having been made that out of 2.90 acres land from C.S. plot No. 210 of C.S. khatian No. 215, the Government acquired 2.20 acres land and 70 decimals land remained unacquired of which the plaintiffs were the owners, but the Housing Authority illegally created a plot out of the unacquired land as described in schedule 'kha' to the plaint and allotted the same to defendant No. 9 and that, that illegal action of the Housing Authority gave cause of action to the plain-tiffs to file the instant suit, the question of the suit being barred either under the provisions of the Emergency Requisition of property Act, 1948 or the Ordinance, 1982
The National Housing Authority ignoring the case of the plaintiffs that the National Housing Authority illegally erected an industrial plot by encroaching upon the unacquired land of C.S. plot No. 210 as described in schedule 'kha' to the plaint without giving the plaintiffs chance to prove their case by adducing evidence at the trial of the suit. We were taken aback seeing the treatment of the High Court Division of the un-exhibited documents and consideration of the case of the defendants in deciding the merit of the application under Order VII, rule 11 of the Code. And we are constrained to hold that the High Court Division had not the minimum legal acumen as to the scope of interference in revision in deciding the propriety of an order passed by the Court below under Order VII, rule 11 of the Code.
The impugned judgment and order of the High Court Division is set aside, the application filed by the defendant Government under Order VII, rule 11 read with section 151 of the Code is hereby rejected. The suit shall proceed in accordance with law. All the adverse comments made by the High Court Division about the maintainability of the suit and the cause of action to file the suit are hereby expunged. The trial Court shall be at liberty to decide the issue of maintainability along with the other issues involved in the suit on the evidence to be adduced by the parties at the trial. The parties are directed to maintain status-quo strictly in respect of the position and the possessions of the suit property till disposal of the suit. ...Abdul Khaleque(Md.) =VS= National Housing Authority, [8 LM (AD) 314]
Order 7 rule 11- A plaint of a suit should not be rejected under order 7 rule 11 of the Code of Civil Procedure only on point of res-judicata A plaint of a suit should not be rejected under order 7 rule 11 of the Code of Civil Procedure only on point of res-judicata. But the facts of the present case are quite different. The High Court Division concluded that the present plaintiffs-opposite parties having knowledge about the previous suit and having lost their title up to this Division, instituted the present suit which is nothing but a futile exercise. Having considered the facts and circumstances discussed above, we are of the view that the High Court Division has properly considered the relevant law and facts involved in the case. The decision arrived at does not call for interference by this Division and, accordingly, the civil petition for leave to appeal is dismissed. Sumon Paul =VS= Binode Kumar Mali, [5 LM (AD) 139]
Order VII Rule 11- The plaintiff has no cause of action to file the suit. The High Court Division rightly held that the plaintiff had no cause of action for the suit and accordingly rejected the plaint under Order 7 Rule 11 of the Code of Civil Procedure for want of cause of action. We find no cogent reason to interfere with the same. The appeal is dismissed. .....M/S. Samrat Shoes and Leather Manufacturing Industries Ltd. -VS- Md. Zahirul Islam, [5 LM (AD) 426]
Order 7 Rule 11 r/w section 151- Maintainability of the application for rejection of the plaint The Appellate Division found that the very nature of the claim that the decree has been obtained by practicing fraud upon the court without impleading the plaintiff presupposes the maintainability of the suit. Its stated that the defendants attempted to get the said decree executed for which the plaintiff are prejudiced seriously and that there are disputed facts which cannot be adjudicated upon without recording any evidence. The High Court Division miserably failed to consider that aspect to the matter and thereby has committed error of law resulting on error in the decision occasioning failure of justice in rejecting the plaint. The judgment of the High Court Division is set aside. The Appellate Division directed the triad Court to dispose of the trial of the suit expeditiously, accordingly the appeal was allowed.......Jahangir Khandaker & others =VS= Mosammat Ayesha & others, [1 LM (AD) 253]
Order VII Rule 11(d) r/w section 151-
For rejection of the plaint- For declaration that the contract No.315510058 dated 31.01.2011 was illegal, void and the same is not binding upon the plaintiff- High Court Division that the High Court Division found that there was a valid agreement between the plaintiff and defendant wherein an arbitration clause has been stipulated and pursuant to the said agreement an arbitration proceeding has already been commenced before the Arbitration Tribunal at Liverpool. This suit has been instituted subsequent to the arbitration proceeding. The High Court Division held that though written statement has been filed but, in fact, the same can be treated as information to regarding pendency the court of arbitration proceeding before Arbitration Tribunal at Liverpool.
We are of the view that the High Court Division rightly disposed of the Rule staying further proceeding of the suit with a direction to settle the dispute in the arbitration proceeding...... Mosharaf Com. Tex. Mills Ltd -VS- ECOM Agro. Corp. Ltd & others, [1 LM (AD) 248]
Order VII, rule 11 r/w Section 151- For specific performance of contract- The learned Judges invoked section 151 of the Code, but the inherent power under the section cannot be exercised on assumptions and presumptions of facts and or on suspicion......Md. Noor Hossain & others =VS= Mahbuba Sarwar & others, [1 LM (AD) 341]
Order VII, rule 11- Mandatory injunction A Court of law can give mandatory injunction if it is necessary to compel the performance of certain acts which the Court is capable of enforcing and also to compel performance of the requisite acts to prevent the breach of an obligation by the defendant(s) and to get a relief in a suit, the plaintiff must satisfy the Court by producing evidence that the defendants had an obligation to him which they were breaching...... Comprehensive Holdings Ltd. =VS= MH Khan Monju, [3 LM (AD) 198]
Order 7 Rule 11
First Appeal rejecting the plaint on an application filed under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure. Sonali Bank represented vs. Meghna Vegetable Oil (Md. Abdul Matin J) (Civil) 7 ADC 644
Order 7 Rule 11
Specific performance of contract by way of re-conveying by the defendants the suit land in his favour on the averments that he was owner of the suit land by way of jote right and while in possession and enjoyment of the suit land he proposed to sell the same and the defendant No.1.......(2) Kohinoor Chowdhury vs. Sree Kamada Ranjan Bhattacharja (Md. Tafazzul Islam J) (Civil) 6 ADC 488
Order 7 Rule 11, Section 151
Praying for declaration of title to the suit land and also for further declaration that the ex-parte judgment and decree dated 13.11.1995 passed in Other Class Suit No. 99 of 1994 is not binding upon them contending. Saleh Ahmed and oth- ers vs. Amena Bewa and others (Md. Abdul Matin J) (Civil) 6 ADC 695
Order VII, Rule 11
The facts of the case, in short, are that the Waqf Administrator, Dhaka by order dated 30.09.2002 appointed Tofazzal Ahmed, Mutawalli Secretary of Waqf Estate and constituted and approved 13 member committee for 5 years. M. To- fazzal Ahmed vs. Jashim uddin Haydar Faruque (Mohammad Fazlul Karim J) (Civil) 6 ADC 250
Order 7, Rule 11
Under section 9 of the Code of Civil Procedure any civil Court has jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. It has to be noticed that there has been no provision for appeal or no forum pro- vided in the Order for redress of genuine grievances of any body or person when injustice is perpetrated on them. It can- not be imagined that such a body or per- son should be precluded from receiving assistance from a court of law. Civil Court is a court of ultimate jurisdiction, and in cases where no other remedy is provided for, the door of the civil court should not be closed and hermetically sealed against one who had been subjected to injustice. Bangladesh Shilpa Rin Sangstha vs. Rahman Textile Mills Limited and ors (Bimalendu Bikash Roy Choudhury J)(Civil) 4 ADC 325
The Civil Procedure Code
order 7 rule 11
section 66
Praying for declaration that the plaintiff- respondent Nos. 1-6 have acquired a title by adverse possession in the suit property and also prayed for confirmation of their possession and the respondents also prayed for other consequential re. lieves as mentioned in the plaint. S.M Hossain vs. Lahazuddin (Md. Muzam- mel Hossain J) (Civil) 7 ADC 209
Order 7, Rule 11
Averments having been made in the plaint alleging fraud and malafide and that in the light thereof relief having been sought civil court is quite competent to investigate the question of fraud and malafide and the said allegation as can only finally adjudicate upon full dress hearing of he suit, the High Court Division was in error in rejecting the plaint upon an erroneous view that the suit is barred under section 37 of the PDR Act. Md. Marfat Ali Miah vs Sree Jagadish Chandra Sheel (Civil) 3ADC 476 (Md. R Ruhul Amin J)
Order 7, Rule 3
The plaintiffs are out of possession of the land in suit and as such without the prayer for consequential relief the suit seeking simple declaration of title was not maintainable. In that state of the matter it is clear that the plaintiffs have sought for declaration of title in respect of unspecified, vague and undivided land. If the land in suit is vague, unspecified and that relief sought is in respect of undivided portion of land of particular plot(s) in that case suit seeking mere declaration of title is not maintainable. Ershad Ali Howlader died leaving behind the following heirs: Nazrul Islam (Babul) and others vs. Santi Rani Dhupi and others (Md. Ruhul Amin j) (Civil) 3ADC 960
Order 7, Rule 11
Action is bundle of facts and for the ascertainment of the cause of action Court is required to read the plaint in its entirety the plaint does not disclose any cause of action and the learned subordinate judge was wrong not rejected the plaint. High Court Division was not correct in holding that the plaint did not disclose cause of action. Sunder All being dead his heirs. Abdul Hannan v Md. Serajul Islam Sarker (Md. Ruhu Amin, J) (Civil)1 ADC 201
Code of Civil Procedure (V of 1908)
Order VII, rule 11
A still born suit should be properly buried at its inception so that no further time is consumed on a fruitless trial and such burial also gives benefit to the plaintiff who then can have a chance to replace his steps at the earliest possible moment so that, if permissible under the law, he may found a properly constituted case......(4.40) [73 DLR 554]
Code of Civil Procedure (V of 1908)
Order VII, rule 11
A suit should be buried at its inception if it is found on the very averments of the plaint that the same is barred by law. [73 DLR 554]
Order VII, rule 11
The instant suit was filed on 14.08.1996 and the defendants who filed the application for dismissal of the suit, filed written statement to contest the suit. Thereafter, issues were framed by the learned Joint District Judge and the suit being ready was fixed for peremptory hearing. At that stage on 26.06.2005 i.e. after about 9(nine) years from the date of filing of the suit the defendants filed the application for dismissal of the suit on the ground of its maintainability. In the application it was contended, inter- alia, that in the plaint the plaintiffs claimed that plaintiff No.1 is a private limited company and its Managing Director, Mr. Sirajul Islam Khan died leaving behind a son, 2(two) wives and one daughter, i.e. plaintiff Nos.2 and 3 and defendant Nos.5 and 6 respectively and plaintiff No.2 claimed himself to be the director of plaintiff No. I company. In order to become a director one must be the owner of minimum 5000 shares in the company and on the death of Sirajul Islam Khan none of his heirs became the owner of 5000 shares, so none of them is fit to be the director and in fact none became the director. As per article 14 of the Articles of Association an heir of a deceased share-holder can become a share-holder only when the Company approves the same but the heirs of de- ceased Sirajul Islam Khan were never approved by the Company. Plaintiff Nos.2 and 3 are not competent to be the director of the company and they had no interest in the property of the Company; the persons who got kabala from plain- tiff Nos.2 and 3 were not entitled to be impleaded in the suit. Although the suit was filed on behalf of the company for redemption of the mortgaged property, the plaint was not signed by any one on behalf of the company duly authorized in that respect. Although plaintiff No.3, Syeda Sultana signed the plaint as Director of the company, she was never Director of the company as per the Articles of Association of the Company. So, the suit filed by the company was not maintainable. Salahuddin Khan vs. Md. Abdul Hai Bahar (Md. Abdul Wah- hab Miah J) (Civil) 8 ADC 869
Editors’ Note:
The question came up for consideration in the instant petition is whether a suit can be brought against the Chittagong Port Authority without service of a prior notice under section 49 of the Chittagong Port Ordinance,1976 and whether issue of maintainability for non service of aforesaid notice can be realized after joining the issue. The High Court Division held that after joining the issue and on completion of the hearing plaint cannot be rejected. The Court also held that as there is no alternative remedy in the Chittagong Port Ordinance,1976 regarding land dispute between the authority and the private individual the service of summon along with a copy of plaint upon the authority will be deemed as sufficient. In the result, the High Court Division discharged the rule.
Purpose of serving notice prior to the institution of the suit under section 49 of the Chittagong Port Ordinance, 1976: Service of notice under Section 49 thereof prior to institution of any suit against the Chattogram Port authority has been incorporated for its smooth functioning and discharging its regular routine activities. Another purpose of such notice is to save public time and litigants’ expenditure in the cases where any person aggrieved serves notice upon the port authority and the authority by itself addresses his grievance realizing the right course of action before going to the court. In such view of the matter, if a person already institutes a suit under whatever notion and the summon with a copy of the plaint is served upon the port authority, the purpose of notice under Section 49 of the Ordinance would be sufficiently served inasmuch as no alternative remedy is provided in the Ordinance for dissolving any land dispute between the Port Authority and a private individual. (Para-24)
Objection regarding rejection of plaint to be raised before joining the issues: Even in case of proceedings of a suit without prior notice, where such notice is legally required, the objection must be raised before fling of written statement by the defendant concern. After joining the issues by filing written statement, settlement of all issues and completion of hearing, a plaint cannot be rejected under Order VII, rule 11 of the Code especially when two other suits between the parties on the selfsame subject matter are pending in the same court and one of them is fixed for simultaneous hearing with the present suit. (Para-26) [17 SCOB [2023] HCD 34]
Order 7, rule 11
However, from the above discussions it is evident that the High Court Division committed no wrong in allowing the de- fendants' application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint of Title Suit No.42 of 1999 of the 5th Court of Sub- ordinate Judge, Dhaka. The parties of this subsequent Title Suit No.42 of 1999 and the parties of earlier Title Suit No.177 of 1994, are same, the subject matter of both these suits being-the en- tire land of C.S. Plot No.371 of C.S. Khatian 4300 'Ja' of Mouza-Shahar Dhaka, are same and also the issues raised and settled in the earlier suit and the issues for determination in the sub- sequent suit are same. ....(12) Abdul Jalil vs. Islami Bank Bangladesh Ltd. (Nazmun Ara Sultana J) (Civil) 9 ADC 271
Order VII, Rule 11
The plaintiff-respondent Nos. 1-6 filed a written objection against the application for rejection of plaint stating, interalia, that the title of the petitioner was still sub-judice in Other Suit No.21 of 1956 filed by the respondent No.7 which does not contain any substance and legal force. It is asserted that the respondent No.7 died long ago and the suit filed by her has abated. The petitioner referred the orders passed in Civil Revision No. 1225 of 1960 with regard to death of respondent No.7 at the time of hearing of the Rule. The respondent No.36 tadbirkar of the respondent No.7 was directed to produce respondent No.7 before the High Court Division by order dated 31.07.1989. .......(5)
This Hon'ble Court was pleased to grant leave in Civil Appeal No. 178 of 2002 in the following terms- "The learned counsel appearing for the petitioner submits that there is a clear admission in the plaint that the predecessor-in-interest of the plaintiff-respondent Nos. 1 to 6 and respondent Nos.28 to 36 were monthly tenants in respect of the suit premises and the High Court Division has failed to take into consideration and thus acted illegally and erroneously.
He further submits that the High Court Division acted illegally and contrary to law in failing to appreciate the law of estoppel of tenants as laid down in sections 115 and 116 of the Evidence Act under which monthly tenants are estopped from denying the title of the owner without surrendering the premises and the plaintiff-respondents admittedly not having surrendered possession after judgment in Civil Revision No.1142 of 1969 wherein the issue of tenancy has been decided, the suit is barred by law. The learned counsel further submits that the High Court Division acted illegally and contrary to law in failing to con- sider that the plaintiffs' suit was barred by Sections 11 and 66 of the Civil Procedure Code and as such committed error in law in rejecting the petition under Order VII Rule 11 of the Code of Civil Procedure.
He further submits that the plaintiff-respondents being heirs of the deceased defendants in Money Suit Nos.92 of 1960 and 97 of 1966 filed by the defendant for recovery of arrear rent and the predecessor-in-interest having admitted their tenancy under the petitioner in re- spect of the same property, the High Court Division erred in law in not hold- ing that the present suit claiming title by heirs of tenant is barred under Order XXII, Rule 4, Sub-Rule (2) of the Civil Procedure Code whereunder the heirs are estopped from raising a new case. The above submissions merit consider- ation.
Leave is granted upon condonation of the delay." S.M. Hossain vs. Lahazud- din (Md. Muzammel Hossain J) (Civil) 9 ADC 510
Code of Civil Procedure (V of 1908)
Order VII, rule 11
In a proper case the plaint can be rejected immediately after its registration and even before issuance of summons because of the fact that the very word 'shall' in the provisions under Order VII rule 11 of the Code makes it obligatory for the Court to reject a plaint if such plaint does not disclose any cause of action or if the suit is barred by law. (4.42) [73 DLR 554]
Order VII, rule 11-Since granting of probate is a judgment in rem and binds not only the parties but also to the entire world any question relating to the Will after granting of "probate" cannot be looked into by any other civil court other than the court having competent jurisdiction ensured by the statue. The probate court alone has exclusive jurisdiction and the civil Court on original side does not have jurisdiction even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix once the probate is granted. Gita Sen vs Md Rafiqul Islam (Civil), 73 DLR (AD) 138
Filing of written statement by the defendant within the prescribed period of time is now a mandatory provision of law : ( Lal Mamud and others Vs. Siraj Miah and others , 45 DLR 638 ]
The defendant has given reasonable explanation for delay in filing his written statement in the case - ends of justice will be frustrated if the same is not accepted [ Fazlul Huq Vs. Md . Tohed Ali and others , 47 DLR 326 ]
Order VII Rule 11 of the Code of Civil Procedure
The actions of the Government are made in the name of the President and notwithstanding the provision authorising the Government to make appointment of the learned Judges of the Adalat and constitute the said Court, the Government have taken the decision. under order of the President and there is nothing wrong in the impugned legislation and that the Artha Rin Adalat has been legally constituted and the suit has been legally proceeded with. A.R.A. Jute mills Limited -vs- Janata Bank and oth- ers (Md. Ruhul Amin J(Civil) 3AD 684
Order 7, Rule 11(d)
The High Court Division rightly ob- served as follows:- "Whether the plaintiff can rely or base upon the facts which occurred during the period of 1992-94 for its claim of compensation from the de- fendant which it made lastly by legal notice dated 05.04.2003 or not is purely a question of fact and can only be decided after the sifting of the evidence to be adduced by the parties, particularly limitation being a mixed question of fact and law. In view of the above, we do not find any error committed by the court below in passing the impugned order occasioning failure of justice rejecting the application filed by the defendants under Order 7, Rule 11(d) of the Code therefore no interference is called for by this court with the impugned order. However, we make it very clear that the point as argued by Mr. Shamim Khaled Ahmed, can very much be agitated at the time of final hearing of the suit by framing a specific issue to the effect 'whether the claim of the plaintiff is barred by limitation'." Janata Bank vs. M/S. Haque Commercial Syndicate (Md. Muzammel Hossain J) (Civil) 10 ADC 117
Code of Civil Procedure [V of 1908]
Order 7 rule 11-The High Court Division not rejected the plaint under Order 7 rule 11 of the CPC but strucking out schedule 'kha' land from the plaint. The High Court Division is not rejecting the plaint under Order 7 rule 11 of the Code of Civil Procedure but strucking out schedule 'kha' land from the plaint as said portion of the plaint is not entertainable and there is no necessity to consider material evidences either oral or documentary. Dr. Shamsuddin Zahangir and another -Vs- Asraf Abdul Halim Faridi and others (Civil) 19 ALR (HCD) 363-368
Code of Civil Procedure [V of 1908]
Order 7, rule 11 read with Specific Relief Act [I of 1877]
Sections 54, 55 and 56(F)
For rejection of plaint
There is no hard and fast rule that by any single action if several individuals are aggrieved, all the aggrieved individuals should redress their grievance jointly or severally. The High Court Division does not find any bar for any single individual to seek legal remedy against any action by which he has been aggrieved with some others.
The defendant-petitioners after appearing in the suit have not filed written statement and from the order sheets including the impugned order, it clearly transpires that the defendants were repeatedly taking times for filing written statement in the suit and in the juncture of taking time, the defendants suddenly filed the application for rejection of the plaint under Order VII, rule 11 of the Code beyond the provision of law.
There is no such provision of Arbitration in the Agreement. Rather, there is provision for settlement of dispute and difference between the parties in "mutual good faith." The term "mutual good faith" does not fall within the ambit of Arbitration. Therefore, the submission of the learned Advocate for the petitioner relating to Arbitration has got no basis at all.
The High Court Division is of the view that the application under Order VII, rule 11 of the Code of Civil Procedure has not been filed lawfully and the same has rightly been rejected by the learned Judge of the Trial Court. In such view of the matter, the Rule issued in Civil Revision No. 1265 of 2016 relating to rejection of the application under Order VII, rule 11 of the Code has got no merit. Accordingly, the Rule is discharged without any order as to costs. As regards the Rule issued in Civil Revision No. 583 of 2016 relating to rejection of application under section 151 of the Code praying for ad-interim injunction, the High Court Division is of the view that since an application under Order XXXIX, rules 1 and 2 of the Code filed by the plaintiff is pending before the Trial Court, the Trial Court is competent enough to consider the same. Therefore, the Trial Court is directed to dispose of the aforesaid application in accordance with law positively within thirty days from receiving copy of the judgment. Accordingly, the Rule issued in Civil Revision No. 583 of 2016 is disposed of. Unicom Education Consultant Services Limited and another-Vs.- Redwanul Bari (Civil) 23 ALR (HCD) 56
Code of Civil Procedure [V of 1908]
Order 7 rule 11-Whether the plaint is liable to be rejected the Court is required to peruse the paint only and Court is not permitted to travel beyond the paint to dig out grounds to reject the paint which is a settled principle of law.
The High Court Division held that it is true there is some mistake in the plaint though the contents of the plaint do disclose the cause of action for the suit There is ample opportunity to amend the plaint at any stage of the suit. So the plaint cannot be rejected on that count. For the foregoing reasons stated above, the High Court Division hold that the Court of Appeal below acted illegally in affirming the order of the trial Court dated 14.05.2013 dismissing the suit on the ground of maintainability of the suit and the same does not deserve to be sustained, In the result, the Rule is made absolute. Md. Zushan. Vs. Upazila Education Officer and others. (Civil) 18 ALR (HCD) 270-272
Code of Civil Procedure [V of 1908]
Order 7 Rule 11 read with section 115 (1)
Artha Rin Adalat Ain [VIII of 2003]
Section 20- No suit can be instituted by any person challenging any proceeding, order, judgment and decree passed by the Artha Rin Adalat in any court except the provisions provided in the law.
The High Court Division held that the present suit is not filed by the plaintiff challenging any proceeding, order, judgment or decree passed by any Artha Rin Adalat. The instant suit in between two private individuals relating to declaration of title and recovery of possession only. As such, the suit is not at all barred by section 20 of the Artha Rin Adalat Ain. The trial court misread and misconstrued the provision of law and without due application of mind rejected the plaint holding that the suit is barred by section 20 of the Artha Adalat Ain or attracts the prayer of the instant suit. The appellate court while allowing the appeal, exhaustively and very nicely explained the situation and interpreted the law in this regard and rightly held that the suit is not barred by section 20 of the Artha Rin Adalat Ain. In view of the above, the High Court Division finds that the appellate court has not committed any error of law occasioning any failure of justice. Taking into consideration the above, the Rule is discharged, however, without any order as to costs. Sarowar Wadud Chowdhury -Vs- A.K.M. Hammad Zinnah and others (Civil) 18 ALR (HCD) 180-182
Code of Civil Procedure [V of 1908]
Order 7 Rule 11-If the plaint discloses a cause of action, the correctness or otherwise of the allegations constituting the cause of action is beyond the power of order 7 Rule 11. A plaint can not be rejected on the ground of disclosure of two causes of action or of misjoinder of parties.
The Appellate Division held that the rejection of plaint at the threshold entails very serious consequences. This power has to be used in exceptional circumstances and ought to be used only when the court is absolutely sure that the plaintiff does not have an arguable case at all. A dismissal of suit and a rejection of plaint are not identical terms. A plaint can be rejected on any of the grounds mentioned in Order 7 Rule 11 of the Code and not otherwise. Mampower Ltd.-Vs. Artha Rin Adalat No. 2, Dhaka and another (Civil) 18 ALR (AD) 30-31
Code of Civil Procedure [V of 1908]
Order 7 rule 11 read with
Registration Act [XVI of 1908]
Section 17(A)
Section 17(A) and 17(B) of the Registration Act only apply to the registration of the Bainapatra deed, the plaintiffs have not claimed to have registered deed of sale on the basis of said Bainanama and therefore it does not apply to the instant suit and there is no ground to reject the plaint of the plaintiffs.
The High Court Division held that the provisions of Order 7 rule 11 of the Code of Civil Procedure and section 17(A) and 17(B) do not apply to the suit of the plaintiffs as the plaintiffs did not file the instant suit for specific performance of contract, the plaintiffs contention was that they had been in possession of the suit land since 27.10.2002 and they have mentioned the matter of Bainanama in the plaint to establish their date of getting possession of the suit land. Section 17(A) and 17(B) of the Registration Act shall only apply to the registration of the Bainapatra deed, the plaintiffs have not claimed to have registered deed of sale on the basis of said Bainanama and therefore it does not apply to the instant suit and there is no ground to reject the plaint of the plaintiffs. Considering the facts and circumstances of the case the High Court Division finds no substance in the Rule. In the result, the Rule is discharged. Kari Moulavi Abdul Gafur and another Vs. Mohammad Nurullah alias Badsha (Civil) 17 ALR (HCD) 4-07
Code of Civil Procedure [V of 1908]
Order 7, Rule 11
Registration Act [XVI of 1908]
Section 17A and 17B
The provisions of Order VII, rule 11 of the Code of Civil Procedure read with section 151 and sections 17A and 17B do not apply to the suit for the permanent injunction of the plaintiffs. The plaintiffs did not file the suit for specifie performance of contract on the basis of the Bainanama. Section 17A and 17B of the Registration Act shall apply only to the registration of the Bainanama deed, but the plaintiffs have not claimed to have registered deed of sale on the basis of said Bainanama. Therefore, it does not apply to the instant suit; there is no ground to reject the plaint of the plaintiffs.
The Appellate Division is of the view that the High Court Divisions observation that the plaint of the suit for permanent injunction could not be rejected under Order VII, Rule 11 of the Code is a correct proposition of law in the facts of the case, but the ordering part of the judgement is somewhat incongruous. In such view of the matter, the Appellate Division is inclined to set aside the judgement and order of the High Court Division as well as the judgement and decree passed in Civil Revision. The order of the trial Court in restored. Kari Moulavi Abdul Gafur and another. Vs. Mohammad Nurullah @ Badsha. (Civil) 17 ALR (AD) 90-92
Code of Civil Procedure [V of 1908]
Order 7, Rule 11-Since the property was not abandoned and, therefore, the Government had transfer the property. no authority to
The Appellate Division held that the effect of the decision of the Court of Settlement that the property was not abandoned is that the inclusion of the property in the abandoned property list by gazette notification dated 23.9.1986 is negated and that decision that the property was not abandoned relates back to the date on which it was included in the gazette. In other words, the effect of the finding that it is not abandoned means that it was not abandoned on 23.9.1986. Hence, transfer of the property by way of sale dated 18.10.1990 to respondent No. 1 is nullified since the property was not abandoned and, therefore, the Government had no authority to transfer the property. It is curious that the Government did not mention the sale of the property at any point in time during the proceedings before the Court of Settlement or indeed when the matter was pending before the High Court Division. When the Government came before the Appellate Division, only the direction of the High Court Division with regard to interest to be paid on the rental amount was challenged. The Appellate Division is of the view that the decision of the Government to release the property from the "Ka" list of abandoned properties by Gazette dated 02.12.2004 has put a final seal on the matter. The abandoned character of the property having been established all the way to the Appellate Division and the challenges of the Government as well as the present respondent having been unsuccessful, there can be no doubt about the legality of the gazette notification dated 02.12.2004 and hence the Appellate Division finds that the trial Court rightly rejected the plaint of writ-respondent No. 1 under Order VII, Rule 11 of the Code of Civil Procedure. In view of the above discussion, the Appellate Division finds that the judgement and order of the High Court Division is not in accordance with law and accordingly the impugned judgement and order is set aside. Md. Javed Alam Vs. A.F. Alfajuddin Ahmed and others (Civil) 15 ALR (AD)121-125
Code of Civil Procedure [V of 1908]
Order 7, Rule 11 read with
Registration (Amendment) Act, 2004
Section 17A read with
Specific Relief Act [1 of 1877]
Section 21A
The suit was filed with two prayers. Firstly, for a direction upon defendant No. 1 to execute a deed in respect of the land described in the schedule, failing which a direction that the property is liable to be registered; and secondly, seeking a direction that the registered heba-bil-awaz No. 5168 dated 10.07.2006 is inoperative. The trial Court observed that the two claims of the plaintiff cannot be decided without taking evidence.
The Appellate Division finds that the trial Court has identified two claims made by the plaintiff in the plaint of the suit. Having gone through the order of the trial Court, the Appellate Division is of the view that the application under Order VII, Rule 11 of the Code was rightly rejected and no illegality has been committed by the High Court Division in upholding the order of the trial Court. In view of the above, the Appellate Division does not find any merit in the civil petition for leave to appeal, which is accordingly dismissed. Saifuddin Ahmed -Vs. Dr. Hosne Ara Begum alias Golap and others (Civil) 23 ALR (AD) 24
Code of Civil Procedure [V of 1908]
Order 7, rule 11 read with
Section 11
The High Court Division in deciding the merit of an application under Order VII, rule 11 of the Code could come to a finding that the facts stated in the plaint as to the cause of action to file the suit were unreliable relying on the unexhibited documents produced by the defendant by filing a supplementary affidavit before it. It is absolutely the domain of the trial Court and then the Appellate Court, if there be any appeal against the judgment and decree of the trial Court either to believe or disbelieve the facts stated in the plaint as to the cause of action to file a suit.
The treatment of the High Court Division of the unexhibited documents and consideration of the case of the defendants in deciding the merit of the application under Order VII, rule 11 of the Code. And the Appellate Division is constrained to hold that the High Court Division had not the minimum legal acumen as to the scope of interference in revision in deciding the propriety of an order passed by the Court below under Order VII, rule 11 of the Code.
The Appellate Division held that the impugned judgment and order of the High Court Division is set aside, the application filed by the defendant Government under Order VII, rule 11 read with section 151 of the Code is hereby rejected. The suit shall proceed in accordance with law. All the adverse comments made by the High Court Division about the maintainability of the suit and the cause of action to file the suit are hereby expunged. The trial Court shall be at liberty to decide the issue of maintainability along with the other issues involved in the suit on the evidence to be adduced by the parties at the trial. The parties are directed to maintain status-quo strictly in respect of the position and the possessions of the suit property till disposal of the suit. Md. Abdul Khaleque and others -Vs. The National Housing Authority and others (Civil) 16 ALR (AD) 170-175
Code of Civil Procedure [V of 1908]
Order 7. Rule 11 read with section 151- Whether a plaint is to be rejected, the court will take only the plaint and documents therewith filed into consideration and not what has been urged by the defendant in a petition or in the written statement.
The Appellate Division observed that in the judgment the learned Joint District Judge has not specifically decided as to whether the claiming of compensation as damage falls within dispute as per terms of agreement rather, he opined ambiguously since there is a clause for arbitration in the agreement for resolving dispute, hence, the suit is barred. He, therefore, rejected the plaint as barred by law. Thus, it is evident that the judgment and order of the Joint District Judge suffers from legal infirmity as well as violating the settle principles enunciated by the Appellate Division. Executive Engineer, Roads and Highway Department (RHD), Road Division, Munshiganj Vs. Md. Nurul Islam and others (Civil) 16 ALR (AD) 163-168
Code of Civil Procedure [V of 1908]
Order 7 Rule 11(a) and (b) read with section 151-Whether the plaintiff is a worker or performing managerial and administrative function is to be deicided upon taking evidence. The court below considering whole gamut of the legal and factual aspects held that application for rejection of plaint is not tenable.
The High Court Division held that a worker who on solitary occasion does function of managerial or administrative officer does not cease to be a worker. The decision (21 DLR 285) is plainly not applicable in the instant case as because for taking a decision whether the plaintiff is a worker or performing managerial and administrative function is to be deicided upon taking evidence. The court below considering whole gamut of the legal and factual aspects held that application for rejection of plaint is not tenable. The High Court Division finds no infirmity or illegality in the findings made therein. Accordingly the rule is discharged. Uttara Bank Limited Vs. Md. Abdul Khaleque and another (Civil) 19 ALR (HCD) 213- 215
Code of Civil Procedure [V of 1908]
Order 7 rule 11 (d)- lt is the view of the Appellate Division that application under Order 7 rule 11 (d) of the Code of Civil Procedure for the rejection of plaint that there is a clear distinction between a case where the suit appears to be barred from the statement in the plaint and a case in which the Court after consideration of the enter materials including oral and documentary evidence comes to the conclusion that the statement in the plaint is false. In the former case plaint is liable to be rejected but in latter case plaint cannot be rejected and the suit will be dismissed. Dr. Shamsuddin Zahangir and another Vs. Asraf Abdul Halim Faridi and others (Civil) 19 ALR (HCD) 363-368
Code of Civil Procedure [V of 1908]
Order 7 clause (d) of rule 11 of read
with Chittagong Port Authority Ordinance, 1976
Section 49-A suit cannot be instituted against the Authority, namely, the Chittagong Port Authority or against any officer or employee of the Authority or any person acting under their direction unless a notice in writing has been delivered or left at the office of the Authority.
The Appellate Division observed that notice has been served upon the Chairman, who is the Chief Executive Officer of the Authority and notices had also been served upon some officers of the Authority. Since notice was served upon the Chairman of the Chittagong Port Authority, notice could be said to have been served upon the Port Authority and sufficient compliance with section 49 of the Ordinance could be said to have been made. In the plaint, there is an averment that notice under section 49 of the Chittagong Port Authority Ordinance had been served. When there is clear assertion in the plaint itself that notice under section 49 of the Ordinance was served upon the Chittagong Port Authority, it could not be said that the suit is barred by law as envisaged in clause (d) of rule 11 of Order VII of the Code of Civil Procedure. In view of the above discussion, the Appellate Division hold that the High Court Division was justified in allowing the appeal and setting aside the judgment delivered by the learned Subordinate Judge rejecting the plaint. Accordingly, the appeal is dismissed and the impugned judgment passed by the High Court Division is affirmed. Abdur Razzak Dob- hash. Vs. Ali Murtaza Dobhash and others. (Civil) 18 ALR (AD) 55-56
Code of Civil Procedure [V of 1908]
Order 7 rule 11(B)-Whether the plaint shall be rejected if the plaintiff fails to put in requisite stamp-papers within the time fixed by the Court.
The High Court Division held that if the plaint is rejected on the account of the failure of the plaintiff to correct the valuation or to put in requisite stamp paper within time fixed by the Court, no doubt it would be very harsh decision against the plaintiff to gain over the defendant without contesting the suit on merit and thus the plaintiff will be debarred from his lawful claim. But the said proviso of the rule was added by an amendment only to check unnecessary and willful delay to correct the valuation and to supply deficit court fees. Considering the facts and relevant provisions of law and the decision of apex court reported in 10 MLR (AD) 186, the High Court Division finds merit in this appeal. In the result, the appeal is allowed. Sree Bhuban Chandra Sutradhar and others Vs. Md. Afroj Afgan Choudhury and others (Civil) 15 ALR (HCD) 262-265
Code of Civil Procedure [V of 1908]
Order 7 rule 11(d) read with
Real Estate Development and Management Act [XLVIII of 2010]
Section 36 read with Salish Ain, 2001
Section 2(Y), 7 and 10 read with
Building Construction Act, 1952
Section 14-Whether the plaint is liable to be rejected under Order 7 rule 11(d) CPC because of the bar imposed by any law, particularly section 36 of the Real Estate Ain, 2010 and section 7 of the Salish Ain, 2001 and section 14 of the Building Construction Act, 1952 (ইমারত নির্মাণ আইন).
The High Court Division finds there is an agreement between the parties, but there is no clause requiring the parties to resort to arbitration. Clause 15 speaks only of an amicable settlement and not of arbitration. For ready reference, clause 15, as earlier produced in the impugned order of the trial Court, is reproduced below: "That in case of any dispute arising between the parties hereto regarding this agreement it is agreed that it will be amicable settled the parties and a supplementary agreement may be made to resolve the dispute without the intervention of anybody else" Evidently clause 15 of the agreement does not contemplate an arbitration process. There is nothing on record to show that the parties otherwise (চুক্তি বর্হির্ভূতভাবে) agreed to have an arbitration process. So the agreement cannot be treated as a সালিস চুক্তি and therefore section 7 of the Ain, 2001 or section 36 of the Real Estate Ain, 2010 does not come into play and these provisions do not stand as a legal bar to the filing of, or entertaining, the suit. Even section 10 does not come into play for the same reason. It is noted that section 14 of the Building Construction Act, 1952, has been pleaded as a ground in the application filed by the defendant for rejection of the plaint, but it was not pleaded in the trial court or in this court. However the High Court Division has examined section 14 of the said Act, 1952. This section 14 imposes bar on the jurisdiction of the Civil Court in respect certain actions of the authorized officer of RAJUK taken under section 3, 3A, 3D, 4-6 and 9. In the instant suit, plaintiff has not challenged any action of the RAJUK. So section 14 of said Act, 1952 is not applicable to issue of rejection of plaint. In view of the above findings, the High Court Division concludes that the trial court, in passing the impugned order rejecting the plaint, committed an error of law occasioning failure of justice and therefore it is liable to be set aside and the appeal is to be allowed. In the Result, the First Appeal is allowed. Home for All Developer Ltd. -Vs.- Quazi Harunul Hoque and others. (Civil) 15 ALR (HCD) 218-224
Code of Civil Procedure [V of 1908]
Order 7, rule 11, clause (a) No action was taken pursuant to the Memo impugned in the writ petition. Therefore, the writ-petitioners had no cause of action to invoke the writ jurisdiction.
Though the provisions of Code of Civil Procedure are not as such applicable in the case of a writ petition, the principle of the provisions of the Code of Civil Procedure can be borrowed in deciding a writ petition like the provisions of Order VII, rule 11, clause (a) thereof.
The Appellate Division observed that in the absence of the cause of action, the writ petition was not maintainable in law and therefore, the High Court Division did not commit any error of law in discharging the Rule Nisi on the view that the writ petition was not maintainable. In the context, the High Court Division rightly relied upon the case of Kamaluddin Md. and another -Vs- Bangladesh and others, 56 (AD) 212. However, the Appellate Division is of the view that if any action is taken affecting the right of the petitioners in the lands in question pursuant to the memo impugned in the writ petition, they shall have every right to challenge the said action by resorting to appropriate forum including the writ jurisdiction of the High Court Division. With the above observations, this appeal is dismissed. Rokeya Begum and another Vs. Bangladesh and others (Civil) 15 ALR (AD) 170-176
Order VIII rule 1 & Order XLI rule 12
Right to appear and answer an appeal as given under rule 12 is completely different from that to contest a suit by filing a written statement under rule 8 ( 1 ) of the Code . The appellate Court fell in serious error of law in equating both the rights as same and in allowing the opposite parties to file written statement for the first time in appeal . [ Narayan Chandra Saha and another Vs. Jatindra Chandra Saha and others , 52 DLR 5 ]
The purpose of new provision of law embodied in Order VIII to make speedy trial of cases which docs not mean that in case of a bonafide human error , the court will not be in a position to grant leave to file document in unavoidable and exceptional circumstances . [ Kazi Moniruzzaman Vs. Kazi Nuruzzaman ( Civil ) 306 , 58 DLR 2006 ]
Order VIII rules 2 and 5
Code of Civil Procedure ( Amendment ) Ordinance ( [ XL VIII of 1983 ) came into force on 5-9-1983 before the judgment which was delivered on 30-8-1984 . Rules 1 and 2 of Order XIII having been repealed on 5-9-1983 are not applicable to the present case . [ Abul Hashem Khan Vs. Shamsuddin Khan 41 DLR 415.
The defendant is not required to file the document with the written statement and under the amended rule 5 of Order VIII , the document not filed under the amended rule 2 may be received with the leave of the Court ( Abul Hashem Khan Vs. Shamsuddin Khan , 41 DLR 415 )
If a defendant denies an allegation of fact in the plaint , he must not do so evasively , nut answer the point of substance . [ 2001 CC 942 ]
Cause title forms very much a part of the application ( for pre emption ) . Statement made therein should be denied specifically or by implication . [ Idris Mia Vs. Promode Ranjan Das & others , 45 DLR 126 ] Rule . - 4 : Evasive denial.- Where a defendant denies an allegation of The decision of the High Court Division rejecting the prayer of the defendant No. 2 for treating the counter claim as a plaint in the suit cannot be sustained and accordingly set aside . The counter claim filed by the defendant No. 2 is to be treated as plaint in the cross suit in view of the withdrawal of Money Suit No. 21 of 1993 by the plaintiff . Loyal Shipping Ltd Vs. Castrol UK Ltd ( Civil ) 44 , 60 DLR 2008 ]
When the claim raised by the defendant as set - off does not exceed the claim of the plaintiff and when such counterclaim filed along with the Written statement exceeds the ' claim of the plaintiff and requisite court fees are paid thereon , this can well be treated as plaint in a cross suit particularly when the plaintiff withdraws his suit . [ Loyal Shipping Ltd. Vs. Castrol U.K. Ud and others 291-296 , 13 MLR 2008 ]
Relief must be specifically claimed but in the name of general or other relief the Court cannot mount any surprise on the defendant and make him liable for something which does not arise out of the plaint and , as such , he had no occasion to answer the same . Bangladesh Vs. Sheikh Hasina ( Civil ) 90 , 60 DLR 2008 ]
Section 2 ( g ) of the Companies Act , 1994 confers jurisdiction upon the civil court to decide disputes under section 95 and as such the Company Court of the High Court Division can not decide such dispute . [ Abdul Mohit and others Vs. Social Investment Bank Ltd. and others 35 43 , 13 MLR 2008 ]
The law favours adjudication of dispute on merits . Imposition of penalty listed under order IX , Rule 2, C.P.C. rests on the discretion of the Court . Such discretion is to be exercised sparingly only in a case of grave negligence and not in routine. [ NLR 1990 Civ . 301 ] Rules 2 , 3 & 4
After restoration of a suit to its original file and number a fresh notice upon the defendant is absolutely necessary in equity and as of right for prevenxing injustice . [ Siddique ( Md ) Vs. Yeakutr Begum and others 49 DLR402 ]
Ordinarily failure of Counsel's clerk to inform him aboul the date of hearing of the case will not be regarded as a sufficient ground for his non - appearance but there may be special circumstaices when a clerk's failure may amount to be a sufficient cause . Alfu ( Miah and others Vs. Government of the People's Republic of Bangladesh , 45 DLR ( AD ) 112 ]
After rejecting the application for issuance of warrant , without passing further order directing the parties to get ready , passing of the order of dismissal of the suit is hit by Order IX , rule 3 of the Code . { Najabatullah Vs. Alokeshi Namasudra and others , 51 DLR 454 ]
Order, VIII, Rule 3- Defendant did not try even to controvert the pleadings of the plaintiffs either before the trial court or before the High Court Division. No suggestion even was ever made to any of the P.Ws. So Appellate Division helds new defence plea that plaintiff could not prove his case is not acceptable.
The Appellate Division helds that the defendant bank did not try even to controvert the above pleading of the plaintiffs and this exhibit-11 produced by the plaintiffs either before the trial court or before the High Court Division. No suggestion even was ever made to any of the P.Ws. to the effect that the plaintiffs did not pay against those travellers' cheques or the purchasers did not encash those. The defendant could not return those travellers' cheques or did not make any statement to the effect that they would return those travelles' cheques to the plaintiff bank. So, in these circumstances Appellate Division is unable to accept this new defence plea that the plaintiff could not prove the sale of those travellers' cheques by the defendant bank...... Uttara Bank VS Credit and Commerce Insurance & others, [1 LM (AD) 448]
Code of Civil Procedure [V of 1908]
Order 8, Rule 9
Amendment to the pleadings
It is that an amendment to the pleadings can be made at any stage of the proceedings but such amendment cannot be made if the nature and character of the suit is changed; that the amendment is barred on the date of institution of the suit, that the amendment should be allowed with a view to resolving all controversies over the same subject matter between the parties and this will prevent the multi-fariousness of proceedings; that all reliefs ancillary to the main relief which is in the nature of additional relief should be allowed as general rule. The averments in the plaint and written statements are pleadings, but in respect of amendment of the written statement the Code is a bit more liberal, in as much as, there is also a provision in the code to file additional written statement under Order 8, Rule 9 of the Code Secondly, as regards the question of limitation both the plaintiffs and defendants are not standing on the same footing, inasmuch as, the question of limitation does not arise in case of the amendment of the written statement. Md. Atiqur Rahman - Vs. Khan Mohammad Ameer and others (Civil) 17 ALR (AD) 106-111
Order IX Rules 2, 3 and 4
Notice upon the defendant if necessary after restoration of the suit dismissed for default?
Against the exparte dismissal of a suit Under rules .2 or 3 of Order IX of the Code the plaintiff has two remedies open to him: (1) he may bring a fresh suit or (2) he may apply for an order to set the dismissal aside. Since two courses are open to the plaintiff against the exparte dismissal of the suit for default the defendant is not supposed to know the remedy actually availed of by the plaintiff in this regard, unless notified. Moreover, with the dismissal of the suit, albeit exparte, a valuable right accrues to the defendant and that right cannot be taken away without affording him an opportunity of being heard. Since the restoration of the suit took place beyond the knowledge of the defendant, the latter is entitled both in equity and as of right to a fresh notice of the date fixed for hearing of the suit after its restoration. Md. Siddique Vs. Yeakuti Begum, 17 BLD (HCD) 579.
Order IX Rules 2,3,6 and 8 with Order XVII Rule 2
Rule 2 of Order IX contemplates absence of both the parties or one of the parties at an adjourned hearing, no matter for what purpose the adjournment was made, and the- Court may proceed under Rule 3 or Rule 6 and Rule 8 as the case may be. Rule 3 applies only when the previous adjournment was granted for any of the purposes mentioned in this Rule and not to a general adjournment.
In the instant case, none of the parties took adjournment for taking certain steps to produce witnesses or to do any specific act and the Court itself adjourned the suit for production of witnesses. This adjournment does not bring into operation Rule 3. After receipt of the High Court Division order vacating the order staying all further proceedings of the suit the learned Subordinate Judge ought to have informed the parties through their Advocates about the next date of hearing of the suit. That having not been done, the prayer for restoration of the suit is allowed. Shamsun Nahar Vs Ahmed Piari and others, 17 BLD (HCD) 415.
Ref: AIR 1970 (All) 257—Cited
Order 9 Rule 4, 13, 41, 27. 49
In the instant case before us we found that actually no notice was served upon the defendants after restoration of the suit on the basis of the order passed in Misc. cases filed under order 9, Rule 4 of the Code of Civil Procedure 1908. Khairun Begum vs Abdul Malik (Md. Hamidul Haque J(Civil) 2ADC 143
Order IX Rule 4
The miscellaneous case allowed on the basis of an application under Order 9, Rule 4 of the Code. No witness was examined and no other material on record in support the application, the impugned order must be held to be patently illegal and arbitratory Ali Akbar Vs Farijuddin and another, 21 BLD (HCD) 388.
Order IX rule 5
It provides that the Court cannot dismiss a suit for default for not taking any step by the plaintiff with regard to service of summons returned unserved before the expiry of 3 months. In the present case, the impugned order of dismissal for default was passed before the expiry of the said specified period and as such it is not sustainable in law. Md. Eklas Miah Vs. Monohor All and others, 17 BLD (HCD) 392.
Code of Civil Procedure [V of 1908]
Order 9, Rule 9-Whether the miscellaneous case filed under Order IX, rule 9 can be dismissed by applying the principle of resjudicata.
The question of res judicata cannot be decided at the initial stage because evidence may be required to decide the issue and as such the question should be decided on the basis of evidence after framing issue on the question.
The High Court Division held that since the petitioner would get a chance to agitate the questions at time of hearing of the miscellaneous case, the revision merits no consideration. Accordingly, the rule arising out of civil revision Petition having been without any merit is discharged. Dr. Abdul Mukit -Vs. Sk. Md. Ahsanullah and others (Civil) 19 ALR (HCD) 250-255
Order IX, Rule 9 read with Order XLIII, Rule 1(C)
Section—151
When an application under Order IX rule 9 of the Code is dismissed for default, it is an appealable order under Order XLIII rule 1(c) but when the case is dismissed not on a default but for non-payment of cost, then such an order can be set aside by invoking section 151 of the Code on acceptance of the costs subsequently. Mosammat Wajeda Khatun and other v. Mosammat Saonatun Bewa, 22 BLD (HCD) 560.
Order IX Rules 9 and 13
The party which seeks to set aside an order made ex-parte in a judicial proceeding should be clean in making the ground for setting aside such an order. The Court should not exercise its discretion in allowing such au’ application where the applicant fails to make out a clear case. The Court is required to apply its judicial mind into the facts and circumstances of the case before setting aside an ex-parte decree. Md. Jasimuddin and another Vs. Government of the People’s Republic of Bangladesh, 15 BLD (HCD) 475.
Order IX, Rule—9
The principles contained in the Code of Civil Procedure can suitably be applied to the writ proceedings, dealing with civil rights, and as such the provisions of order 9, Rule 9 of the Code of Civil Procedure will be applicable to the writ proceedings, otherwise we shall have to accept an illogical proposition that even after filing a Civil Suit and allowing it to be dismissed default, a suitor shall have still a right to move the High Court Division in its writ jurisdiction on the same facts and for the same relief although he is precluded from filing a fresh suit. Abdul Latif Howlader Vs. Bangladesh Power Development Board and others, 13 BLD (HCD) 479.
Ref: Hussain Bakhsh Vs. Settlement Commissioner, Rawalpindi and others, PLD 1970 SC 1, S.A. L. Narayan Rao and anr. Vs. Ishwarlal Bhagwandas and another, A.I.R 1965(SC) 1818. -Cited.
Order IX Rule 13
When the findings of the High Court Division are based on correct assessment of the materials on record appellate Division has nothing to interface. Abdul Hai vs Atar Islam (Civil) I ADC 107
Order IX Rule XIII
The trial court and the appellate court concurrently found that the petitioners had failed to prove that summons of the original suit was not served upon them and accordingly dismissed the case. Most. Jubeda Khatun vs. Md. Khuda Box & others (M.M. Ruhul Amin J)(Civil) 4 ADC 777
The High Court Division having consid- ered both oral and documentary evi- dence on record found that the lower Appellate Court being the final Court of fact came to correct decision to the effect that the plaintiff-respondents succeeded in proving their right, title and possession in the suit land and are enti- tled to permanent injunction. Abul Kashem vs. Md. Abu Bakar Siddique Khan and others (Syed J. R. Mudassir Husain CJ) (Civil) 4 ADC 779
Rejecting the application for restoration of S.A. No. 302 of 1979 which was dis- missed for default for non-compliance of the court's order dated 19.07.2001. Md. Ohed Ali Mondal & others vs. Minor Mojibur Rahman & others (M.M. Ruhul Amin J)(Civil) 4 ADC 782
It appears that the defendant-petitioners paid only Tk. 15,00,000/00 out of the claim of the plaintiff amounting to Tk. 18,25,000/-and ultimately failed to repay the balance amount with interest and as such we are of the view that the learned Judges of the High Court Division having meticulously considered the evidence. Mr. Abul Hossain and Brothers vs. Rupali Bank Limited (Syed J. R. Mudassir Husain CJ)(Civil) 4 ADC 785
Order IX rule 3 & Order XVI rule 1001 ) ( 3 )
A civil Court can issue warrant of arrest to ensure appearance of any witness or party in a litigation , before it , if the court thinks his presence necessary for final and effective decision in a dispute .
[ Najabatullah Vs. Alokeshi Namasudra and others , 51 DI R 454 ]
If the court accepts the written statement in exercise of its discretion , it must give reasons for it on failure of which the superior Court will be at liberty to interfere with the decision . In the present case the discretion was exercised rationally . [ KDH Laboratories Ltd. Vs. Pubali Bank , 40 DLR 1 ]
Order IX rule 6 and Order XVII rule 2
Ex parte hearing can only be ordered under two instances i.e. under Order IX , rule 6 and Order XVII , rule 2 for filing written statement in default thereof the defendant can still appear and argue his case without the written statement . ( Adamjee Jute Mills Vs. Chairman , Labour Court , 39 DLR 11 ]
On 24-7-2001 Miscellaneous Case No. 11 of 2000 ( pre - emption ) was dismissed for default for the cause of non appearance of the pre - emptor . Thereafter on 20-8-2001 Miscellaneous Case No , 21 of 2001 under Order IX , rule 9 of the Code of Civil Procedure was filed within lime . The grounds urged in the application appear to be satisfactory but the learned Judge without assigning any cogent reason disbelieved the grounds of the application and rejected the case . On the contrary , learned Judge of the Court of appeal below without deciding the merit of the application under Order IX , rule 9 of the Code of Civil Procedure decided the merit of Miscellaneous case for preemption which is not at error in the decision occasioning failure of justice in making out a third case . ( Kulsum Khatun Vs. Rahman Sobhan , 14 BLC ( AD ) 2009 )
It will be wholly inequitable to permit the defendants to prove their facts in this Court after 10 years . The defendants must take the consequence for their own laches . [ Red Sun Limited & others Vs. Uttara Bank , 51 DLR ( AD ) 256 ]
An important order as the transfer of the case from one Court to another should invariably be communicated to the parties concerned and in making of such communication the signature of the parties or their Advocates should be obtained and when signatures are not obtained , the order sheets should show that the information has been communicated . ( Santi Gopal Dey and others Vs. Maliza Rani Saha and others , 51 DLR 290 ]
The Miscellaneous Case under Order IX , rule 13 of the Code was incompetent against the ex parte order passed by the District Judge in Miscellaneous Case No. 28 of 1979 in view of Sub - Article ( 10 ) of Article 27 of President's Order 7 of 1978 , inasmuch as , the said ex parte order was liable to be challenged only by an appeal to the High Court Division . / Safiqueuddin Ahmed ( Md ) and another Vs. House Building Finance Corporation , 53 DLR 80 ]
The legislature for realisation of money from the defaulter enacted the provision for depositing 50 % of the decretal amount both in preferring the appeal and in preferring the application under Order IX , rule 13 which cannot be said to be an unreasonable restriction . [ Abdul Gaffar Chowdhury Vs .. Joint District Judge and Artha Rin Adalat & others ( Spl . Original ) 138 , 57 DLR 2005 ]
If a party satisfies a Court that summons was not duly served upon him , the Court is bound to set aside the ex parte decree . In such a case , question of knowledge is not at all relevant and ex pane decree will be set aside even if the defendant had knowledge of institution of the suit . [ Regent Ken International Ltd Vs. Amanat Shah Ship Breaking Industries Ltd ( Admiralty Jurisdiction ) 234,57 DLR 2005 ]
Plaintiff should not suffer for his pleader's default . It is the pleader's business to attend court regularly . Absence of Counsel is a sufficient cause . The client should not be penalised for the Inches and negligence of his Counsel . Ho being an agent , his negligence is not the negligence of his client . [ Kabir Ahmed Sawdagar Vs. Md Syed Suifuddin Jaheed ( Civil ) 277 , 58 DLR 2006 ]
Even if there is no pleading from the side of the defendant alleging non - genuineness of the document on the basis of which plaintiff is claiming the relief in the suit , the Court has a duty in the interest of justice to scrutinise the document ( s ) relied upon by the plaintiff and if on such scrutiny the Court notices elements in the document that make the same non - genuine , in the instant case as noticed by the appellate Court and stated hereinbefore , then in that situation the Court in spite of the absence of the pleading of the defendant as to the non - genuineness of the document of the plaintiff , is quite competent lo make its decision on the basis of result obtained upon scrutiny of the document . [ Bangladesh represented by the Deputy Commissioner Vs. Md Abdul Jabbar Sheikh ( Civil ) 105 , 59 DLR 2007 ]
The object of the power granted under the rule is mainly to draw by viva voce examination the real points in controversy between the parties , and thus prevent the real matter in dispute from remaining undecided or left out of consideration. [ AIR 1924 Nag . 191 ]
A date fixed in the suit for settlement of issues is a date of hearing fixed for a meaningful hearing . Absence of plaintiff on that date necessarily entails the dismissal of the suit . [ PLD 1991 SC 443 )
Order 9 Rule 13
Learned Joint District Judge upon hear- ing the parties and considering the ma- terials on record allowed the petition by order dated 31.10.2002 awarding com- pensation of Tk.5,000/- in favour of the plaintiff. Chairman, Chittagong Port Authority vs. Safiuddin (Shah Abu Nay- eem Mominur Rahman J) (Civil) 7 ADC 931
Order 9 Rule 4
Defendant-petitioner seeks review of this Court's judgment dated 19.06.2008 passed in Civil Appeal No. 181 of 2005 dismissing the appeal with cost of Tk.10,000/- M.A. Aziz vs. Bangladesh represented by the Secretary (Md. Joynul Abedin J) (Civil) 6 ADC 547
The Code of Civil Procedure 1908, Order IX rule 13
Praying for a decree for eviction of the defendant as licensee. The suit was de- creed ex-parte. Waliullah being dead his heirs vs. Hasina Begum (A.B.M. Khairul Haque J) (Civil) 7 ADC 377
Order IX Rule 13
The suit was decreed on compromise with defendant No. 1 and 2 and ex-parte against the rest by judgment and decree dated 02.09.2002. Then, the defendant Nos.4 to 6 made an application under order IX Rule 13 of the Code of Civil Procedure being Miscellaneous Case No.23 of 2006 for restoration of the suit to its original file and number after set- ting aside the ex-perte decree. Puron Gonju vs. Abdul Haque and others (B.K.Das J) (Civil) 7 ADC 633
Order IX, Rule 13 of the code of Civil procedure (CPC)
The suit was filed seeking declaration of title in respect of 4.69 acres of land and confirmation of possession as to part of the land in suit and recovery of possession as to part of the property in suit and for permanent injunction.Mazu Bibi vs Mosammat Rabeya Begum (MD. Ruhul Amin JCivil) 3ADC 702
Order IX, Rule 13
The suit was filed seeking declaration of title in respect of 4.69 acres of land and confirmation of possession as to part of the land in suit and recovery of posses- sion as to part of the property in suit and for permanent injunction.Mazu Bibi vs Mosammat Rabeya Begum (MD. Ruhul Amin J)(Civil) 3ADC 702
Order IX, Rule 13
That the application under order 9 rules 13 of the Code of Civil Procedure was not barred by limitation in the facts of this case as limitation is to be counted from the date of knowledge of defendant No. 8 under Article 164 of the Limitation Act as the summons was not duly served upon her. Ful Meher Bibi dead her heirs Sabura Khatun vs Abdul Wahab (M. M. Ruhul Amin J)(Civil) 2ADC 486
Order 9, Rule 13
For setting aside the ex-parte decree on the ground that the summonses of original suit was not duly served upon the defendants and the names and addresses of the defendants were wrong and the summonses were shown served in collusion with the process server............(2) Enayet Hossain vs. Nur Islam Howlader (M.M. Ruhul Amin J) (Civil) 5ADC 580
Specific performance of contract on the averments that the suit property belonged to the defendant petitioners and the respondent No.3 (the proforma defendant No.5) and they agreed to sell the same to the respondent No.1 at consideration of Tk. 3,00,000/- and he having paid Tk. 1,50,000/- a bainanama was executed whereupon the possession of the suit property was delivered to him and the Petitioners subsequently received further amount from him by executing 'wasil receipt' and the respondent No.1 thus, in total, paid Tk. 2,66,500/- and then he tendering the balance amount requested the petitions and the respondent No.3 to execute and register the sale deed but only the respondent No.3 executed and registered a sale deed in respect of his portion of the suit property and the petitioners refused. Abdul Zakir Khondaker vs. Bimal Kumar Kunda (Md. Tafazzul Islam J) (Civil) 5ADC 583
Order 9 Rule 13 of the C.P.C.
Question of abatement may be decided in a forum having civil jurisdiction and accordingly the writ petition is not maintainable. Faroque Ahmed vs. Subordinate Judge, 2nd Court and Artha Rin Adalat No. 1(Md. Tafazzul Islam J(Civil) 4ADC 570
Order 9, rule 13
The trial court, on consideration of the evidence and facts and circumstances, dismissed the miscellaneous case filed by this petitioner. This petitioner then preferred Miscellaneous Appeal No.63 of 2001 in the court of the District Judge, Barisal against that judgment of the trial court. Millon Nayeb vs. Joynal Abedin Mia (Nazmun Ara Sultana J) (Civil) 9 ADC 774
Order IX, Rule 13
On consideration of the materials and evidences on record the trial Court found all the issues against the defendant-petitioners and in particular the case was found to be barred by limitation. Md. Abdul Based Sheikh vs. Md. Jinder Ali Khan (Shah Abu Nayeem Mominur Rahman J) (Civil) 8 ADC 515
Order IX, Rule 13
Filed for restoration of Title Suit No. 103 of 1989 after setting aside the ex- parte judgment and decree dated 7.5.1997. Ijarder Mansur Ahmed vs. Sheikh Musaraf Hossain (Shah Abu Nayeem Mominur Rahman J) (Civil) 8 ADC 454
Order IX, Rule 13- Review- Civil Petition for Leave to Appeal was dismissed on the ground that Miscellaneous Case No.40 of 1997 under Order 9 Rule 13 of the Code of Civil Procedure was filed about 6 years after passing of the ex-parte decree dated 27.08.1991 in Title Suit No.347 of 1982 without any application under section 5 of the Limitation Act for condonation of delay as such an application is to be filed within 30 days from the date of ex-parte decree or within 30 days from the date of knowledge of the ex-parte decree in question. The Miscellaneous Case was filed after a lapse of 11 (eleven) months from the alleged date of knowledge without any application for condonation of delay and the same was accordingly held to be barred by limitation. We do not find any cogent reason to review the impugned judgment. ..... RAJUK VS Momtaz Hasan Chowdhury, [4 LM (AD) 319]
Order IX, rule 13- The Appellate Division observed that it is true that the application under Order IX, rule 13 of the Code was filed after 30(thirty) days from the date of the decree, but sufficient explanations were given for filing the same out of time and prayer was made for condoning the delay. But the learned Judge considered nothing. The learned Judge did not also advert the findings and the reasoning of the Subordinate Judge in condoning the delay in filing the application out of time. The only reason assigned by the learned Judge in making the Rule absolute was that the application was filed beyond 30(thirty) days. In the context, the learned Judge failed to consider that section 5 of the limitation was applicable to an application filed under IX, rule 13 of the Code beyond limitation and thus erred in law in interfering with the order of the learned Subordinate Judge. In the result, the appeal is allowed. Kashaituli Jame Mosque Waqf Estate =VS= Md. Abdus Salam & others. [1 LM (AD) 239]
Order IX, rule 13- Ex parte decree-
Appointment of guardian for the minor defendants. Since they were not properly represented in the suit, the ex parte decree cannot be sustained- The Court Nazir is not a proper person to be appointed guardian of minors. we find from Order No.6 dated 13.11.1989 that the Court guardian submitted a report to the effect that the minors do not have any title or interest in the suit. Such a report is clearly illegal since it is not within the jurisdiction of the Courts Nazir to decide whether any party to the suit has interest in the suit. Also, in submitting such report, he is clearly acting against the interest of the minor defendants.
We are satisfied that a substantive legal point has been raised in respect of the appointment of guardian for the minor defendants. Since they were not properly represented in the suit, the ex parte decree cannot be sustained, and is thus liable to be set aside. The appeal is allowed. The trial Court is directed to proceed with the trial of the suit in accordance with law after serving summons upon the plaintiff and all the defendants. Hoque ..Anowarul =VS Mohammad Tafazzal Mondal, [9 LM (AD) 305]
Order IX Rule 13- The remedy under Order IX Rule 13 of the Code of Civil Procedure is not available if the appeal is disposed of prior thereto. But before disposal of the appeal trial Court which passed the ex-parte decree against defendant Nos.2 to 5 is competent to hear and dispose of an application filed under Order IX Rule 13 of the Code of Civil Procedure.
President Order No.142 of 1972 in unequivocal terms stated in Article 6 that no person shall, without joining the Government which shall be a necessary party, file or proceed with any suit for specific performance of contract relating to transfer of immoveable property or for declaration of title to, or assertion of ownership of any such property.
Defendant No.1, Government of Bangladesh, represented by the Deputy Commissioner, Gazipur was impleaded in the suit as proforma-defendant No.2 in violation of President's Order No.142 of 1972. This civil appeal is dismissed without any order as to costs. ...Jamuna Builders Ltd. =VS= Government of Bangladesh, [9 LM (AD) 308]
Order IX Rule 13 and Order XLIII, rule 1(d)- When the earlier suit was decreed ex-parte, the present plaintiffs had the choice of one of three avenues: to file an application under Order IX rule 13 of the Code, to file an appeal or to file a separate suit. In this case the present plaintiffs chose to file a miscellaneous case under Order IX rule 13 of the Code. It was held that dismissal of Miscellaneous Case No.111 of 1981 was appealable under Order XLIII, rule 1(d), accordingly Miscellaneous Case No.119 of 1982 was rejected as not maintainable. In spite of the finding that the application under Order IX, rule 9 did not lie, the present plaintiffs filed revision before the learned District Judge, which having been dismissed, they filed Civil Revision No. 1033 of 1987 before the High Court Division. It cannot be said that the present plaintiffs were not aware that the dismissal of Miscellaneous Case No.111 of 1981 under Order IX, rule 13 was appealable. The present suit was filed on 04.09.2008, about 26 years after Miscellaneous Case No.111 of 1981 under Order IX, rule 13 of the Code was dismissed for default. It is abundantly clear that the present plaintiffs have acted with mala fide from the very beginning. The present suit is hopelessly barred by limitation as well as the principles of res- judicate. ...Syed Rafiqul Islam =VS= A.K.M. Aminul Haque, [10 LM (AD) 69]
Order IX, Rule 13- Exparte decree- When Title Suit (No.46 of 1991) was decreed ex-parte and a suit was filed for setting aside the said exparte decree, the question of rejection of the plaint of the suit did not arise at all. .....Md. Noor Hossain & others =VS= Mahbuba Sarwar & others, [1 LM (AD) 341]
Order IX, Rule 13- Ex-parte decree- An ex-parte decree will be set aside if it is found that there was no service of summons on the defendant- Process server most examine by the Court, but in the instant case the process server was not adduced to examine by the Court, even then, the trial Court found from record that there are some anomalies in the serving of the summons In a suit for setting aside the ex-parte decree, in a case of service by hanging because of alleged refusal by the plaintiff appellant to receive notices, where the names and addresses of the mukabila witnesses were not noted in the service reports by the process server, it is the settled principles of law from the long line of catena, obviously process server most examine by the Court, but in the instant case the process server was not adduced to examine by the Court, even then, the trial Court found from record that there are some anomalies in the serving of the summons, such facts would lead to disbelieve the service which is devoid of the essential information as requires by law. But the learned Single Judge of the High Court Division failed to appreciate the above legal proposition. Thus, committed serious error of law point occasioning failure of justice. The judgment of the High Court Division is hereby set aside. Directed to conclude the trial as early as possible preferably within 1(one) year from the date of receipt of this judgment positively. ...Azirun Nessa(Most.) =VS= Sree Arun Chandra Biswas, [10 LM (AD) 332]
Code of Civil Procedure [V of 1908]
Order 9 Rule 13
State Acquisition and Tenancy Act, 1950
Section 96
When the order allowing pre-emption was passed on 13.05.1992 Bashanta Kumar and Chandra Kumar had no coownership in the case holding and therefore their successors had no locus standi in the pre-emption case.
The appellate Court set aside the order of the trial Court upon holding that the right to preemption must subsist till the conclusion of the pre-emption case. When the case was decided by the trial Court on 13.05.1992 Chandra Kumar and Bashanta Kumar no longer owned any land in the case jote and therefore they had no subsisting right to pre-empt the case land. The High Court Division observed that when the order allowing pre-emption was passed on 13.05.1992 Bashanta Kumar and Chandra Kumar had no co-ownership in the case holding and therefore their successors had no locus standi in the pre- emption case. The Appellate Division finds that the appellate Court has properly set aside the order of the trial Court and the High Court Division correctly affirmed the judgement and order of the appellate Court. In view of the above discussion, the Appellate Division finds that the impugned judgement and order does not suffer from any illegality or infirmity and does not call for any interference by the Appellate Division. Accordingly, the civil petition for leave to appeal is dismissed. Abdul Matin and others Vs. Abu Siddique and others (Civil) 23 ALR (AD) 33
Code of Civil Procedure [V of 1908) Order 9 Rule 13
The defendant No. 10 filed written statement to contest the suit, but the suit was transferred to the court of Subordinate Judge and Artha Rin Adalat No. 1, Dhaka beyond his knowledge and he was not notified at all about that transfer of the suit by either of the courts. There is no evidence or material on record to show that this defendant No. 10 knew about the transfer of the suit and he willfully remained absent in the court when the suit was taken up for peremptory hearing. The High Court Division, obviously, committed wrong in making observation and finding that none of the defendant-petitioners filed written statement in the original suit and was diligent in proceeding with that suit and in restoring the impugned ex-parte decree on such erroneous observations and findings.
The Appellate Division is of the opinion that the trial court rightly allowed the Miscellaneous Case No. 24 of 2001 filed by the defendant No. 10 and rightly set aside the ex-parte decree restoring the Title Suit No. 63 of 2001 to its original file and number. Since the Title Suit No. 63 of 2001 was a suit for partition it will be restored as a whole and the other defendants also including the defendant-petitioners of Civil Petition for Leave to Appeal No. 866 of 2009- will get opportunity to contest the suit. Both the Civil Petitions for Leave to Appeal Nos. 866 of 2009 and 867 of 2009 are disposed of with the above observations. The impugned judgment of the High Court Division is set aside. Md. Abdul Hafiz and others Vs. Setara Begm and others (Civil) 23 ALR (AD) 84
Code of Civil Procedure [V of 1908]
Order 9, rule 13
When a date is fixed by the Court parties are to be notified, especially if any interim order was passed on an "off- date". The Court ought to have heard the case on the date already fixed for hearing.
There was sufficient reason for non appearance of the defendants on date subsequent to 02.05.2005, since th matter did not appear in the cause list of the date fixed, i.e., on 23.05.2005. Accordingly, the order of the trial Court allowing the miscellaneous case under Order IX, rule 13 is affirmed.
It appears to the Appellate Division that the defendant appeared in the suit and filed written statement and subsequently on 02.05.2005 an application was heard for addition of party and the same was allowed. The next date was fixed for hearing on 23.05.2005. However, the matter was again taken up on 06.05.2005 before the set date and thereafter the matter was fixed for SD (settling date) on 28.06.2005. It appears that the matter was not taken up at all on 23.05.2005 which was a regular hearing date. It is not surprising, therefore, that the defendant did not appear in any of the subsequent hearing dates as they would have been taken off the track. Ultimately the suit was decreed exparte. When a date is fixed by the Court parties are to be notified, especially if any interim order was passed on an "off-date". The Court ought to have heard the case on the date already fixed for hearing. i.e. 23.05.2005 and should have notified subsequent dates fixed for the case. It appears that since the defendants diligently proceeded in the suit and not only appeared, by filing written statement but also suggested issues to be framed, there is no explanation for their subsequent non- appearance in the suit other than the fact that the case listing was derailed and instead of the case appearing on the fixed date on 23.05.2005, it appeared on an off- date, i.e., 06.05.2005, and the date originally fixed was totally missed out. The case was then listed for further order on 28.06.2005 but the case never appeared before the Court on 23.05.2005. From the record it transpires that none of the Courts including the High Court Division noticed the said anomaly. The Appellate Division is of the view that there was sufficient reason for non-appearance of the defendants on dates subsequent to 02.05.2005, since the matter did not appear in the cause list on the date fixed, i.e., on 23.05.2005. Accordingly, the order of the trial Court allowing the miscellaneous case under Order IX, rule 13 is affirmed. The judgement and order of the High Court Division passed in Civil Revision No. 35 of 2008 affirming those of the learned District Judge is hereby set aside. The suit shall proceed in accordance with law and be disposed of expeditiously. With the above observations and directions the civil petition for leave to appeal is disposed of. Ayesha Khatun Vs. Jalalabad Co- operative Housing Society Limited. Chittagong and others (Civil) 22 ALR (AD) 30
Code of Civil Procedure [V of 1908]
Order 9 Rule 13
A defendant against whom an ex parte decree has been passed can either file an appeal against the decree, or file an application for review or pray for restoration of the suit under Order IX Rule 13. These remedies are all concurrent and independent. An application under Order IX Rule 13 of the Code of Civil Procedure can be heard notwithstanding the pendency of the appeal arising out of the same decree. It makes no difference that the application is made by one defendant and the appeal has been filed by another defendant.
President Order No. 142 of 1972 in unequivocal terms stated in Article 6 that no person shall, without joining the Government which shall be a necessary party, file or proceed with any suit for specific performance of contract relating to transfer of immoveable property or for declaration of title to, or assertion of ownership of any such property.
The Appellate Division observed that where the ex parte decree has been confirmed or otherwise disposed of on appeal, the Court passing the decree ceases to have jurisdiction to hear the application for restoration even though the application was filed before the appeal was filed as its decree merged in the appellate decree. The same principle will hold good even if the appeal has been preferred by a party other than the defendant against whom the decree was passed ex parte. (emphasis supplied) In this connection reliance may be placed on the case of Md. Wasiq Khan Vs. Md. Sakib Chan and others (1979) 31 DLR (AD) 57, has been held in paragraph-18 as under 8. On a review of the decisions and the scussion on the question set out, the ollowing propositions seem to be well ettled: Where a defendant against whom en exparte decree is passed applies under Order 9, rule 13 of the Code of Civil Procedure to set it aside and at the same time prefers an appeal from it, the Calcutta High Court has held that notwithstanding the pendency of appeal the original court may proceed with the application. Damodar vs. Sarat Chandra 13 CWN 846 and Kumud Nath vs. Jathindra Nath, 38 Calcutta 394. The Allahabad High Court has also taken the same view. Mathura vs Ram Charan, 37 Allahabad, 208, Gajaraj Vs. Swaminath, 39 Allahabad, 13: Humani vs. Azizuddin, 39 Allahabad, 143. The extreme position taken by Madras High Court in Sankar vs. Subdrajan, 30 Madras, 535 has not been followed by other High Courts. Where the exparte decree has been confirmed or otherwise disposed of on appeal the court which passed the exparte decree has no longer any power to entertain an application to set it aside, even though the application was made before the appeal was filed. Mathura vs. Ram Charan. 37 Allahabad, 208. The same principle will hold good even if the appeal has been preferred by a party other than the defendant against whom the decree was passed exparte provided the decree was one and indivisible. Dhonai Sikder vs. Tarak Nath, 12 CLJ 53. But it will not affect the case of the defendant against whom exparte decree was passed and whose claim was not subject matter of appeal although he might be made party as respondent in the appeal. Abdul Jalil Bhuiyan vs. Majibar. 12 DLR 581. The remedy under Order IX Rule 13 of the Code of Civil Procedure is not available if the appeal is disposed of prior thereto. But before disposal of the appeal trial Court which passed the ex parte decree against defendant Nos. 2 to 5 is competent to hear and dispose of an application filed under Order IX Rule 13 of the Code of Civil Procedure. President Order No. 142 of 1972 in unequivocal terms stated in Article 6 that no person shall, without joining the Governmen which shall be a necessary party, file o proceed with any suit for specifi performance of contract relating to transfe of immoveable property or for declaration of title to, or assertion of ownership of an such property. In the case in han defendant No. 1. Government Bangladesh, represented by the Deput Commissioner, Gazipur was impleaded the suit as proforma-defendant No. 2 in violation of President's Order No. 142 of 1972. In the light of the findings made before, the Appellate Division does not find any substance in this appeal. Accordingly, this civil appeal is dismissed without any order as to costs. Jamuna Builders Ltd Vs.- Bangladesh and others. (Civil) 21 ALR (AD) 01-06
Code of Civil Procedure [V of 1908]
Order 9 Rule 13 read with section 151
For setting aside the ex parte decree
When there is an allegation of fraud alleged to have been committed the Court should have restored the suit to its original file and number after setting aside the ex parte decree by resorting to the provision of section 151 of the Code of Civil Procedure. The Appellate Division is of the view that because of fraud practised upon the defendant-appellants, they could not contest the suit and as such, they were prevented by sufficient cause from appearing before the Court when the suit was called on for hearing. Accordingly, the appeal is allowed and the impugned judgment delivered by the High Court Division affirming the judgment and order dated 16.03.2005 passed by the learned Additional District Judge, Fifth Court, Chittagong in Miscellaneous Appeal NO. 05 of 2005 affirming the judgment and order dated 02.11.2004 passed by the learned Joint District Judge, First Court, Chittagong in Miscellaneous Case No. 565 of 2004 is set aside. Other Class Suit No. 104 of 2001 of the Second Court of the then Subordinate Judge, Second Court, Chittagong, is restored to its original file and number. The trial Court is directed to dispose of the suit as expeditiously as possible preferably within 6 (six) months from the date of receipt of a copy of the judgment. There is no order as to costs Government of Bangladesh and others Vs. Jamila Khatun, and others (Civil) 19 ALR (AD) 161-163
Order IX Rule 13
When the defendant satisfies the court that summons was not duly served upon him the court is bound to set aside the ex-parte decree. The service of summons is an essential condition which must be satisfied before a court can proceed to pass an ex-parte decree.
Md. Abul Hossain and others Vs. Niranjon Mondal and others, 14 BLD (HCD) 442
Ref: Juran Chandra Mondal. Vs. Rabindra Nath Mondal, 5 BLD (HCD) 126; Md. Abdur Rashid and another Vs. Abdul Bank and another, 4 BLD(AD)83-Cited.
Order IX Rule 13
‘Prevented by sufficient cause’
When the petitioner adduced corroborative evidence, incitiding medical evidence, to prove that she was ill during the relevant period that prevented her from appearing in the court on the fateful day and the opposite party led no evidence to rebut the petitioner’s evidence, the learned trial court erred in law in disallowing the application under Order 9 Rule 13 C. P. C. without recording any finding as to whether the petitioner was prevented by ‘sufficient cause’ from appearing in the court when the case was taken up for exparte disposal.
Sreemoti Shova Rani Dhar Vs. Amulya Ranjan Dhar being dead his heirs; 1 (a) Gita Rani Dhar and others 14 BLD (HCD) 513.
Order IX Rule 13
The decree holder after accepting the cost without protest cannot subsequently attack the courts order setting aside the ex-parte decree.
In the instant Case, the petitioner has accepted the compensatory cost of Tk. 2000/- awarded by the learned Assistant Judge who after payment of compensatory cost set aside the ex-parte decree and restored the original suit to its original file and number. Since the decree holder petitioner accepted the cost, so he cannot attack the courts order for setting aside the ex-parte decree as the petitioner cannot approbate and reprobate at the same time. Md. Muklesur Rahman Vs. Waziullah, 19 BLD (HCD) 387.
Ref: AIR 1938 (Madras) 603-relied upon.
Order IX Rule 13
When a suit is decreed ex-parte, the defendant may apply to the court by which the decree was passed for an order to set aside the decree and if Court is satisfied that either summons was not served or that the defendants were prevented by sufficient cause from appearing when the suit was called on for hearing. Md. Habibur Rahman and others Vs Md. Abdur Rashid and others, 21 BLD (HCD) 227
Order IX Rule 13
Setting aside ex-parte decree
When it is found that summons has not been duly served upon the defendants the Court is bound to set aside the ex-parte decree. The general rule is that on an application under Order 9 Rule 13 of the Code the Court is competent to set aside an ex-parte decree as against the applicant alone but if it is found that the decree in question is indivisible one, in that case the Court has no alternative but to set aside the entire decree even though the decree was passed against some of the defendants on contest on merit. It is also well settled that even if the decree is divisible the Court, in consideration of the nature of the suit -and the decree, is competent to set aside the decree as a whole in the interest of justice. The determining factor is the nature of the decree and not the reasons behind the decree. Rezaul Karim Vs. Halima Be gum and others, 18 BLD (HCD) 96.
Ref: 35 DLR(AD)162; A.I.R. 1960 (Bom) 485 ;—Cited.
Order IX Rule 13
An application by the legal representatives of a deceased defendant, if maintainable?
In this case defendant No. 18 was dead when the preliminary decree was passed. If defendant No. 18 was alive he would have the remedies open to him against the exparte decree: (1) to file a regular appeal or (2) to prefer an application under Order IX Rule 13 of the Code and, if so chosen, he could simultaneously pursue both the courses. Opposite parties, who are the legal representatives of (1899) 21A11 deceased defendant No. 18 and stepped into his shoes on his death, do have the right to pursue any claim which their deceased predecessor-in-interest could have pursued. The application under Order IX Rule 13 of the Code is therefore maintainable in law.
Rahima Khatun Vs Md. Nurul Hoque and others, 17 BLD (HCD) 329
Ref: AIR 1923 (All) 30; 274;—Cited.
Order IX Rule 13
In deciding a case under Order IX rule 13 of the Code the Court is required to consider two questions: (1) whether summons was duly served upon the defendant and (2) whether the defendant was prevented by any sufficient cause from appearing when the suit was called on for exparte hearing. When one of the two conditions is fulfilled the Court is bound to set aside the exparte decree. Md. Siddique Vs. Yeakuti Begum. 17 BLD (HCD) 579.
Order IX, Rule 13
A miscellaneous case under Order 9 Rule 13 of the Code of Civil Procedure does not abate far non-substitution of the heirs of the deceased plaintiff. Sharif Ullah Patwary and others vs. Jharna Dhara Chowdhury and another, 14 BLD (HCD) 257.
Ref: 25DLR 91-Cited
Order IX Rule 13
In an application under Order IX Rule 13 of the Code f Civil Procedure for setting aside an exparte decree on the ground of non- service of summons, the prime consideration before the Court is to satisfy itself as to whether the plaintiff has been able to prove that summons was duly served upon the defendant. Once the defendant denies service of summons upon him the whole onus shifts to the plaintiff ‘ho has to prove satisfactorily that summons was in fact duly served. Since the finding of the trail court as to non-service of summons cannot be said to be unreasonable and perverse, the High Court Division erred in law in setting aside that finding entering into a question of fact while exercising revisional jurisdiction. Md. Wazed Ali Sardar Vs. Md. Afsaruddin Sardar and others, 16 BLD (AD) 4.
Code of Civil Procedure [V of 1908]
Order 9 Rule 13A read with section 115(1)
Since the exparte decree was passed on 15.05.2001 and restoration petition was submitted on 11.04.2002 almost 11 month after the date of the impugned exparte decree, the restoration petition may be allowed with cost of Taka 2000/- (two thousand) directly setting aside the exparte decree dated 15.05.2001 as per provision incorporated in Order IX Rule 13A of the Code of Civil Procedure. 1908.
The High Court Division is unable to accept the submission of the learned Advocate for the opposite parties in that as per order of exparte decree dated 15.05.2001, it appears that the original suit was earlier fixed for per-emptory hearing. But without filing written statement and framing issues there is no scope to fix a suit for peremptory hearing. So, the submission of the learned Advocate for the petitioner that processes were not duly served is nou also correct. However, since the exparte decree was passed on 15.05.2001 and restoration petition was submitted of 11.04.2002 almost 11 month after the date of the impugned exparte decree, the restoration petition may be allowed with cost of Taka 2000/- (two thousand) directly setting aside the exparte decree dated 15.05.2001 as per provision incorporated in Order IX Rule 13A of the Code of Civil Procedure, 1908. In view of the above facts and circumstances of the case, the High Court Division is of the opinion that ends of justice would be met best if the Rule is made absolute with cost of Tk. 2000/- (two thousand). Accordingly, the Rule is made absolute. Md. Alamin Khodgir Vs. Sreemoti Shebadini Barmon and others. (Civil) 23 ALR (HCD) 25
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