IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

CIVIL REVISION NO. 3529 OF 2023

In the matter of:

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

Procedure.

AND

In the matter of:

Md. Abdur Rahim and others

.... Petitioners -Versus-

Mst. Joynab Bibi and others

....Opposite-parties

Mr. Faysal Hasan Arif, Advocate

... For the petitioners Mr. Md. Abdur Rahman Hawlader, Advocate

....For the opposite party nos. 1-25

Heard and Judgment on 25.02.2024

Present:

Mr. Justice Md. Mozibur Rahman Miah

And

Mr. Justice Mohi Uddin Shamim

Md. Mozibur Rahman Miah, J:

At the instance of the defendant nos. 1-6 in Title Suit No. 377 of 2020, this rule was issued calling upon the opposite-party nos. 1-25 to show cause as to why the order No. 24 dated 02.12.2021 passed by the learned Joint District Judge, 1st Court, Bogura in Other Class Suit No. 377 of 2020 rejecting an application filed under Order VII Rule 11 of the Code

of Civil Procedure should not be set aside and/or such other or further order or orders be passed as to this court may seem fit and proper.

At the time of issuance of the rule, this court also stayed the further proceedings of the said suit initially for a period of 3(three) months which was lastly extended on 16.10.2023 for another 06(six) months.

The short facts leading to issuance of the instant rule are:

The present opposite party nos. 1-25 as plaintiffs filed the aforesaid suit against the present petitioners and others as defendants for permanent injunction restraining the defendant nos. 1-7 from giving rent of the suit properties to the defendant nos. 8-9 described in scheduled ‘ka’ to the plaint till disposal of Title Suit No. 380 of 2018 or to change the nature and character of ‘kha’ scheduled land by erecting any multi-storey building in the suit land measuring an area of 25.07 decimals of land. Soon after filing of the suit, the plaintiffs also brought several amendments in the plaint under Order 6 Rule 17 of the Code of Civil Procedure. However, on 01.03.2021 the defendant nos. 1-7 herein petitioners filed an application under Order 7 Rule 11 (a) and (d) of the Code of Civil Procedure for rejection of the plaint on the ground that the suit cannot continue for want of cause of action as well as it is barred by law as, plaintiffs have got no possession in the suit land and keeping pendency of a suit filed for partition, the suit cannot run. Against that application, the opposite party nos. 1-25 who are the plaintiffs filed written objection denying all the material statement so made in the application for rejection of the plaint and prayed for rejecting the same. The learned judge of the trial court took up the application and vide impugned order dated 02.12.2021 rejected the same holding that, there has been no ingredient for rejecting the plaint. It is at that stage the defendant nos. 1-6 as petitioners came before this court and obtained the instant rule and order of stay.

Mr. Faysal Hasan Arif, the learned counsel appearing for the petitioners upon taking us to the prayer so made in the plaint at the very outset submits that, since a suit for partition being Title Suit No. 380 of 2018 has been pending among the plaintiffs and defendants so until and unless that very suit is disposed of, there has been no scope for the said plaintiffs to file a separate suit for permanent injunction when the plaintiffs-opposite parties had every scope to file an application for temporary injunction in that partition suit even though the suit filed for permanent injunction is prima facie barred under section 10 of the Code of Civil Procedure and a separate suit between the same parties cannot lie.

The learned counsel in his second leg of submission also contends that, the impugned order is a non-speaking order because though the defendants filed the application quoting two different clauses of Order 7 Rule 11 of the Code of Civil Procedure, but no reason has been assigned by the tri