Bench:

Mr. Justice Bhishmadev Chakrabortty

And

Mr. Justice Md. Akhtaruzzaman

First Misc Appeal No. 66 of 1997 With

Civil Rule No.146(FM) of 1997

Hazi Khurshid Alam ..... appellant -Versus-

Ahida Khatun Bibi and another ..... respondents

Mr. Md. Emdadul Haque Kazi with

Mr. Saiful Islam Sumon, Advocates ..... for the appellant

No one appears for the respondents Judgment on 05.02.2024

Bhishmadev Chakrabortty, J.

Since the parties to the appeal and the Rule are same and common question of fact and law are involved in both, these have been heard together and are being disposed of by this judgment.

This appeal, at the instance of defendant 1, is directed against the judgment and order dated 22.03.1997 passed by the District Judge, Feni in Miscellaneous Case No. 01 of 1993 allowing the case filed under Order 39 rule 2(3) read with section 151 of the Code of Civil Procedure (the Code) finding this appellant guilty for violating the Court’s order of status quo ordering him to civil prison for 7 (seven) days and to attach his property.

At the time of admission of appeal, the above rule was issued and operation of the impugned judgment and order was stayed till disposal of the appeal.

Facts relevant for disposal of the appeal as well as the Rule, in brief, are that respondent 1 as plaintiff instituted Title Suit No. 24 of 1992 (subsequently re-numbered as Title Suit No. 33 of 1994) in the Court of the then Subordinate Judge, Feni praying for declaration of title in respect of ‘Kha’ schedule land with further prayer for recovery of possession of ‘Ga’ schedule and permanent injunction upon ‘Gha’ schedule land of the plaint.

During pending of the said suit, the plaintiff filed an application under Order 39 rule 1 read with section 151 of the Code praying for temporary injunction restraining the defendants from making any construction work over ‘Gha’ schedule land. The application was rejected by the Joint District Judge against which the plaintiff preferred miscellaneous appeal before the District Judge, Feni with an application for temporary injunction with similar prayer as made earlier. The District Judge admitted the appeal, rejected the prayer for temporary injunction but directed the respondent to maintain status quo until further order.

The plaintiff thereafter filed aforesaid miscellaneous case under Order 39 rule 2(3) read with section 151 of the Code on 03.01.1993 against the defendants for violating the Court’s order dated 01.12.1992 passed in the aforesaid miscellaneous appeal. She alleged there that after service of the notice of status quo defendant 1 with the help of other defendants violated the Court’s order and constructed a building over the disputed suit land. This appellant opposed the said miscellaneous case by filing written objection denying the facts stated therein. Learned District Judge appointed Mr. Nurul Islam as Advocate Commissioner to investigate into the matter who submitted a report. The learned Judge examined six witnesses for the petitioner and allowed the case finding opposite party 1 guilty for violating the Court’s order of status quo and, accordingly, sentenced him for 7 (seven) days’ civil prison and ordered to attach his property which has been challenged in this appeal.

Mr. Saiful Islam Sumon, learned Advocate for the appellant takes us through the materials on record and submits that a violation miscellaneous case under Order 39 rule 2(3) read with section 151 of the Code is quasi criminal in nature. In disposing such a case, the learned Judge is to frame issue specifying the time and date of violation. Here, learned District Judge framed issues without mentioning any date of violation. The framing of issues are, therefore, defective. The issues should be framed keeping in view that the violator can make reply to it. He refers to the cases of Abdul Matin and others v. A.K.M. Badruzzaman and others, 12 BLD 544; Sultan Ahmed Howlader & ors v. Habibur Rahman Munshi, 7 BLD 73 and

Md. Mamrul and