Present:

MR. JUST ICE S.M. EMDADUL HOQUE

Civil Revision No. 4160 of 2013.

IN THE MATTER OF:

An application under Section 115(1) of the Code of Civil Procedure.

A N D

IN THE MATTER OF:

Riat Ali and others

..... Pre-emptee-petitioners -Versus –

Rawshanara Khatoon and others

..... opposite parties.

Mr. Monisankar Sarker for

Mr. Surojit Bhattachargee, Advocates

….. for the petitioners.

Mr. Hassan Shaheed Qumruzzaman, Advocate ..... for the opposite parties.

Heard and Judgment on:16.01.2024.

S.M. Emdadul Hoque, J:

On an application of the petitioner Riat Ali and others under section 115(1) of the Code of Civil Procedure the Rule was issued calling upon the opposite party Nos.1 and 2 to show cause as to why the impugned judgment and order dated 10.10.2013 passed by the learned Additional District Judge, 1st Court, Jashore in Miscellaneous Appeal No.7 of 2012 dismissing the appeal affirming the order No.121 dated 17.11.2011 passed by the learned Joint District Judge, 1st Court, Jashore in Miscellaneous (pre-emption) Case No.117 of 2000 rejecting the application for holding local investigation by a survey knowing Advocate Commissioner on certain points mentioned in the application should not be set-aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

Facts necessary for disposal of the Rule, in short, is that the opposite Nos.1 and 2 as pre-emptor instituted Miscellaneous Case No.117 of 2000 under Section 24 of the Non Agricultural Tenancy Act in the Court of Joint District Judge, 1st Court, Jashore against the pre- emptee opposite party petitioners.

The opposite parties contested the case by filing written objection denying all the material assertion of the case. Subsequently, the pre-emptee No.1 filed an application under Order XXVI rule 9 of the Code of Civil Procedure for local investigation of the case land by a survey knowing Advocate Commissioner regarding the development cost of the property on 17.11.2011.

The trial Court by its order No.121 dated 17.11.2011 rejecting the said application.

Against the said order of the trial Court the pre-emptee opposite parties preferred Miscellaneous Appeal No.7 of 2012 before the learned District Judge, Jashore the said appeal was heard by

learned Additional District Judge, 1st Court, Jashore who after hearing the parties and considering the facts and circumstance of the case

dismissed the appeal and thereby affirming the judgment and order of the trial Court by its judgment and order dated 10.10.2013.

Being aggrieved by and dissatisfied with the impugned judgment and order of the Courts below the pre-emptee petitioner filed this revisional application under Section 115(1) of the Code of Civil Procedure and obtained the Rule.

Mr. Hassan Shaheed Quamruzzaman, the learned Advocate enter appeared on behalf of the opposite party No.1 through vokalatnama to oppose the Rule.

Ms. Monisankar Sarker, the learned Advocate appearing on behalf of the petitioners submits that the pre-emptee petitioners after purchasing of the case land making development and if the judgment will pass without ascertaining the same the petitioner will be deprived for getting the development cost. She further submits that this is a case for pre-emption under Section 24 of the Non-Agricultural Tenancy Act, and then the Court ought to have considered the development cost if claiming by the pre-emptee and since the pre- emptee filed application for local investigation for ascertaining the development cost as well as the another surrounding property and the petitioner also specially mentioned the development cost in his application and the pre-emptor opposite party did not raise any objection regarding the development cost and submits that the trial Court ought to have considered the said matter by appointing survey

knowing Advocate Commission as such both the Court committed serious error in law resulting in an error in the decision occasioning failure of justice. She pra