সতর্কীকরণ! বিডি কানুনে প্রকাশিত অধিকাংশ নজীর বিভিন্ন বই ও ওয়েবসাইট থেকে সংগ্রহ করা হয়েছে। এই সকল নজীর এর সঠিকতার বিষয়ে বিডি কানুন কোন নিশ্চয়তা প্রদান করে না। বিডি কানুনে প্রকাশিত নজীর এর উপর নির্ভর এর আগে সংশ্লিষ্ট নজীরটির রেফারেন্স মিলিয়ে নেওয়ার অনুরোধ করা হচ্ছে।
Rejection & Rejection of Plaint Submission
73 DLR 98
On Behalf of the Appellant
Mr Md Nurul Amin, learned Advocate on behalf of the plaintiff-appellant submits that the learned Joint District Judge upon misconception of law and facts as to the cause of action for the suit and its maintainability in its present form wrongly dismissed the suit by invoking the provisions under Order VII, rule 11 of the Code of Civil Procedure. He further submits that trial court committed a gross error of law in rejecting the plaint suo-moto and dismissed the suit without any application filed by the defendant under Order VII, rule 11 of the Code. He next submits of that the maintainability of the suit can be be determined at the time of trail and not under the said provisions of the Code. He also submits that the question of maintainability of the suit could be decided only after framing issues under Order XIV, rule 2 and Order XV, rule 3 of the Code of Civil Procedure. He finally submits that maintainability of a suit being a mixed question of fact, the same cannot be decided before filing of the written statement.
It may be mentioned that in paragraph Nos. 14 and 16 of the plaint, the plaintiff clearly stated the facts leading to the filing of the suit. Paragraph 14 and 16 specifically stated the cause of action, the facts in the background of which plaintiff was constrained to file the suit. That cause of action arose on 24-11-2011, when the defendant executed a registered Deed of Agreement No. 8129 dated 24-11-2011 for construction of 20 (Twenty)-storied Commercial cum-Apartment Complex on the schedule property measuring an area of 5.64 Bigha at Rayer Bazar, Dhaka, on the same date i,c, 24-11-2011, when the defendant executed a registered Irrevocable General Power of Attorney being No. 8130 dated 24-11-2011 appointed the plaintiff as their constituted Attorney. That subsequently on 27-11-2011, when the defendants issued Letter of Award/work order, on 20-11-2011 when the plaintiff sent a letter to defendant No. 5 to approve the plan of the proposed project and on 2-2-2014, when defendants refused to approve the plan, on 04-2-2014 when the plaintiff claimed compensa tion from the defendants and they refused to pay his claim. Lastly when defendant No. 6 issued a letter on 28-2-2008 (schedule 'kha' to the plaint) upon the plaintiff informing cancellation of registered Deed of Agreement and Irrevocable General Power of Attorney both dated 24-11-2011 and Letter of Award (work order) dated 27-11 2011. In the aforesaid two paragraphs facts have been detail narrated as to what led the plaintiff to institute the suit.
It transpires that the learned Joint District Judge dismissed the suit mainly on the ground that no cause of action was disclosed in the plaint. But on plain reading of paragraph Nos. 14 and 16 of the plaint, we find that in the said paragraph facts has been clearly stated sufficient enough to disclose the cause of action prompting the plaintiff to file the suit. But the learned Joint District Judge out of total misreading of the averments made in the plaint and acted most illegally in not reading the plaint as a whole and rejected the plaint and dismissed the suit on the ground of maintainability. In the present suit, if the learned Joint District Judge would have read the plaint in its entirety upon due application of mind, then there would have been no reason for the learned Joint District Judge to hold that the plaintiff did not disclose any cause of action.
On Behalf of the Respondent
Mr Md Toufiq Inam, learned advocate appeared with Mr Md Shahjahan for the respondent, Dhaka North City Corporation. Mr Toufiq Inam learned advocate, has contended that the clause 17 of the Agreement dated 24-11-2011 clearly stipulates that if the agreement is cancelled by the defendant, the plaintiff-developer can claim compensation only by filing a suit for damage and compensation against the defendants as such the present suit for simple declaration is not maintainable. Thus the trial court rightly rejected the plaint which disclosed no cause of action. He has further contended that rule 11(a) of Order VII of the Code of Civil Procedure empowered the court to reject the plaint at any stage at his own motion, when the court finds no cause of action in the plaint, same can be rejected. In this respect learned counsel cited a decision reported in 45 DLR (AD) 31. He lastly contended that there is no legal bar for the court to reject a plaint before filing written statement as such the appeal is liable to be dismissed. In support of his argument he has relied the case of Mostafa Kamal vs BD Habibullah reported in 41 DLR 197.
আপনার কাঙ্খিত নজীরটি খুঁজে পাননি! এ বিষয়ে আরও নজীর পেতে নিচের বাটনে ক্লিক করুন।
