Present:

MR. JUSTICE S.M. EMDADUL HOQUE

CIVIL REVISION NO. 893 OF 2022.

IN THE MATTER OF:

An application under Section 115 (4) of the Code of Civil Procedure.

- AND -

IN THE MATTER OF:

Mozammel Huque being died his heir: 1(a) Shahen Shahi Begum and others.

…. Petitioners. -Versus –

Ekram Hossain and others

..….opposite-parties. Mr. Farid Uddin Khan, Advocate

…. For the petitioner.

Heard on: 22.04.2024 and Judgment on: 29.04.2024.

Let the two supplementary-affidavit filed by the petitioner do form the part of the original application.

On an application of the petitioner Mozammel Huque being dead his legal heirs: 1(a) Shahen Shahi Begum and others under section 115(4) of the Code of Civil Procedure the leave was granted and the Rule was issue calling upon the opposite party No.1 to show cause as to why the judgment and order dated 24.09.2014 passed by the learned Additional District Judge, Chattogram in Civil Revision No.92 of 2010 discharging the civil revision and thereby affirming the judgment and order dated 29.10.2009 passed by the learned Assistant Judge, Lohagara, Chattogram in Miscellaneous Appeal No.13 of 2007 rejecting the application for addition of party filed under Order I rule 10 read with Section 151 of the Code of Civil Procedure should not be set-aside and/or pass such other or further order or orders as to this Court may seem fit and proper

Facts necessary for disposal of the Rule, in short, is that the opposite party No.1 Ekram Hossain file pre-emption case under Section 96 of the State Acquisition and Tenancy Act along with under Section 24 of the Non Agriculture Tenancy Act before the learned Senior Assistant Judge, Lohagara, Chattogram challenging the impugned deed No.4158 dated 27.11.1991. The matter was fixed on 17.04.2007 for hearing but the opposite party No.1 did not appear before the Court to contest the miscellaneous. But subsequently the present petitioner as applicant filed application for addition of party under Order I rule 10 read with Section 151 of the Code of Civil Procedure on 29.10.2009 claiming that he is the co-sharer by inheritance as well as the purchaser of the case land.

The trial Court after hearing the parties and considering the facts and circumstance of the case rejected the said application by its judgment and order dated 29.10.2009 taking view that the application is barred under Section 52 of the Transfer of Property Act on the principle of lis pendens without considering that the petitioner is a co-sharer by inheritance of the case land.

Thereafter, the petitioner filed revisional application under Section 115(2) of the Code of Civil Procedure before the learned District Judge, Chattogram being Civil Revision No.92 of 2010. The said revisional

application was heard and disposed of by the Additional District Judge, 3rd Court, Chattogram who after hearing the parties and considering the facts and circumstance of the case rejected the said revisional application and thereby upholding the judgment and order of the trial Court by its judgment and order dated 24.09.2014.

Being aggrieved by and dissatisfied with the impugned judgment and order of the Courts below the applicant as petitioner filed this revisional application under section 115(4) of the Code of Civil Procedure and accordingly the leave was granted and the Rule was issued.

Mr. Farid Uddin Khan, the learned Advocate appearing on behalf of the petitioner submits that after filing this revisional application the petitioner died and thus the present petitioners were substituted on the order of this Court dated 05.01.2024. He further submits that both Court committed serious error in law resulting in an error in the decision in not considering that the pre-emption case is not maintainable since the applicant in its application specifically mentioned that he is the co-sharer of the case land by inheritance. In support of his argument the learned Advocate submits that the supplementary-affidavit filed by the petitioner ann