Present:-

Mr. Justice Mahmudul Hoque

Civil Revision No. 663 of 2015 Hajee Md. Azad Khan

... Petitioner -Versus-

Md. Abdul Hannan being dead his heirs; 1(a) Khodeza Begum and others

...Opposite-parties Mr. Taufiq Anwar Chowdhury with

Ms. Monoara Belgum, Advocates

...For the petitioner Mr. Humayun Kabir with

Ms. Tasmin Akter, Advocate

...For the opposite-party Nos. 5 and 6.

Heard on 23.05.2024, 27.05.24, 28.05.2024 and Judgment on 29th May, 2024.

In this application under Section 115(4) of the Code of Civil Procedure, by granting leave to revision to the petitioner, Rule was issued calling upon the opposite party No. 1 to show cause as to why the impugned judgment and order dated 04.09.2014 passed by the learned Additional District Judge, 2nd Court, Brahmanbaria in Civil Revision No. 17 of 2013 allowing the same and thereby reversing the judgment and order dated 02.07.2012 passed by the learned Senior Assistant Judge, Brahmanbaria in Title Suit No. 304 of 2009 rejecting the application for rejection of plaint and directing the plaintiff to deposit the deficit balance consideration of the contract by 15.05.2013 should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

Shorn of unnecessary details, fact of the case lies in a very narrow compus. The petitioner, as plaintiff, filed Title Suit No. 304 of 2009 in the Court of Senior Assistant Judge, Brahmanbaria against the opposite-party No. 1, as defendant, for a decree of Specific Performance of Contract, stating that the plaintiff entered into a registered agreement for sale dated 13.04.2008 with the defendant No. 1 for a consideration of Tk. 3,50,000/- out of which the defendant received Tk. 50,000/- as earnest money in presence of witnesses and handed over possession of the suit land to the plaintiff. It was stipulated in the agreement for sale that the plaintiff would pay the balance consideration money of Tk. 3,00,000/- to the defendant within 06(six) months and the defendant would execute and register the sale deed. The plaintiff subsequent to deed of agreement for sale upon request of defendant No. 1 make further payment of Tk. 92,090/- on account of loan of defendant No. 1 payable to Dr. Md. Serajul Haque in presence of witnesses on 21.09.2008. In the manner aforesaid the plaintiff paid Tk. 1,42,090/- out of total consideration to the defendant No. 1 leaving a balance of Tk. 2,07,910/-. The plaintiff along with witnesses Sohrab Khan and others approached the defendant No. 1 to execute and register a sale deed in favour of the plaintiff on receipt of balance consideration amounting to Tk. 2,07,910/-, but the defendant No. 1 refused to execute and register the sale deed in favour of the plaintiff on 26.09.2009. Consequently, the plaintiff has constrained to file this suit for Specific Performance of Contract depositing the balance consideration of the contract in court.

Defendant No. 1 appeared in suit, filed written statement and an application on 02.07.2012 praying for rejection of plaint under Order 7 Rule 11(d) of the Code of Civil Procedure. The plaintiff filed written objection on 18.02.2013 against the application for rejection of plaint. The trial court heard the application and after hearing by its judgment and order dated 02.04.2013 rejected the same directing the plaintiff to deposit deficit amount of Tk. 92,090/- in court by 15.05.2013, in default order will be passed in accordance with law.

Being aggrieved by the order of the trial court the defendant No. 1 filed Civil Revision No. 17 of 2013 before the learned District Judge, Brahmanbaria. Eventually, the said revision was heard and disposed of by the learned Additional District Judge, 2nd Court, Brahmanbaria who after hearing by the impugned judgment and order dated 04.09.2013 allowed the revision and set aside the impugned judgment and order of the trial court and allowed application for rejection of plaint. At this juncture, the present petitio