IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Civil Petition for Leave to Appeal No. 38 of 1997
Decided On: 21.07.1997
Appellants: Siruj-ud Dowla
Vs.
Respondent: Government of the People’s Republic of Bangladesh and Ors.
**Hon’ble Judges:**A.T.M. Afzal, C.J., Mustafa Kamal, Mohammad Abdur Rouf and Bimalendu Bikash Roy Chowdhury, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Syed Ishtiaq Ahmed, Senior Advocate, Sayyed Shahid Hossain, Advocate instructed by Md. Aftab Hossain, Advocate-on-Record
For Respondents/Defendant: Sharifuddin Chaklader, Advocate-on-Record
Subject: Property
Catch Words
Mentioned IN
**Acts/Rules/Orders:**Code of Civil Procedure (CPC), 1908 - Order VII Rule 11; Code of Civil Procedure (CPC), 1908 - Order XIV Rule 2; Code of Civil Procedure (CPC), 1908 - Order XXII Rule 10
Prior History:
From the Judgment and Order dated August 26,1996 passed by the High Court Division, Dhaka in First Appeal No. 230 of 1996
JUDGMENT
A.T.M. Afzal, C.J.
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This petition by the co-plaintiff-petitioner is from judgment and decree dated 26 August, 1996 passed by a Division Bench of the High Court Division dismissing First Appeal No. 230 of 1992 filed by the petitioner against judgment and decree dated 8-8-92 passed by the Subordinate Judge, Additional Court, Dhaka rejecting the plaint of and also dismissing Title Suit No. 18 of 1992 (filed as Title Suit No. 698 of 1985 of the Third Court of Subordinate Judge, Dhaka).
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Undisputed facts of the case are that respondent No. 3 Abdul Khaleque Bain filed the aforesaid suit on 1-8-85 against defendant-respondent Nos. 1 and 2 for declaration of his title to the suit property (68, Motijheel Commercial Area, Dhaka). On 14-11-85 the present petitioner filed an application under Order XXII rule 10 of the Code of Civil Procedure for being added as a co-plaintiff in the suit which was allowed. Subsequently, the suit was transferred to the Court of Subordinate Judge, Additional Court and renumbered as Title Suit No. 18 of 1992.
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An application for amendment of the plaint (not in the paper book) was filed on behalf of the plaintiff on 24-9-88 which was allowed on 23-11-88. It appears from the copy of the plaint that the following prayer was added by amendment:
(b) A decree declaring that the treating of the suit property as abandoned and enlisting the same as such in the Bangladesh Gazette published on 23-9-1986 is without jurisdiction, mala fide and of no legal effect.
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Para 5 of the plaint, inter alia, reads: (obviously after amendment)…… The defendants have illegally included the suit property in the List of Abandoned Properties published in Bangladesh Gazette on 23-9-1986 under the provision of Ordinance No. 54 of 1985 even though the suit property is not an abandoned property and the defendants never before issued any notice treating the suit property as an abandoned property.
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On 15-4-92 the defendants filed an application under Order VII rule 11 and Order XIV rule 2 CPC for dismissing the suit, inter alia, on the ground that the suit building having been included in the ‘Ka’ list (of the Gazette published on 23-9-86) the suit was not maintainable under section 6 of the Abandoned Buildings (Supplementary Provisions) Ordinance, 1985, Ordinance No. LIV of 1985, hereinafter referred to as the Ordinance.
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The learned Subordinate Judge considered the matter under Order VII rule 11 CPC and by order dated 8-8-92 allowed the application and further dismissed the suit as not maintainable.
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The said order (which was a decree) has been upheld by the High Court Division by the impugned judgment.
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Syed Ishtiaq Ahmed, learned Counsel for the petitioner, submits that the amendment allowed by the trial Court have two parts i.e. (i) a decree declaring that the treating of the suit property as abandoned property and (ii) enlisting as such in the Bangladesh Gazette published on 23-9-1986 is without jurisdiction mala fide and of no legal effect and the first part having been based on the original averment certainly takes effect from the date of filing of the suit on 1-8-1985 and that being so the High Court Division acted wrongly in dismissing the appeal on the ground of bar of section 7 of the Ordinance No. 54 of 1985.
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Admittedly the suit building was included in the list of abandoned buildings in the Gazette published on 23-9-86 under section 5 of the Ordinance which necessitated the amendment of the plaint prayed for and allowed in 1988. The plaintiff’s suit for declaration of title only which was pending on the date of the publication of the said Gazette was no bar for such enlistment as per proviso (b) to section 5. Now, three consequences follow from the publication of the Gazette-1) The lists published under sub-section (1) shall be conclusive evidence of the fact that the buildings included therein are abandoned property and have vested in the Government as such, section 5(2).
(2) No suit shall lie for a declaration that a building is not an abandoned property, section 6(b) and
(3) any person claiming any right or interest in any building which is included in the list………may make an application to the Court of Settlement for exclusion of the building……, section 7.
- As far as the second part of the amended prayer is concerned, there is and can be no dispute that the suit for the said relief was impliedly barred under section 7. As regards the first part, namely, for declaration that the treating of the suit property as abandoned was without jurisdiction, the bar is express in terms of section 6(b). If there was no such prayer before 23-9-86 and admittedly there was none, it could not be allowed thereafter. The submission that when the amendment was somehow allowed in 1988 and there was no objection to it, it would relate back to the date of institution of the suit i.e., 1-8-85 and the suit cannot therefore be held to be barred overlooks the legal reality that such a relief could not be even prayed for after the coming into force of the Ordinance. The prayer was as if still-born, not to speak of having life from 1-8-85. The original suit itself became not maintainable because the Ordinance provided that enlistment of the building was conclusive evidence of its being an abandoned property. The suit was thus rightly dismissed.
This petition is also accordingly dismissed.