District: Satkhira

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present

Mr. Justice Sardar Md. Rashed Jahangir

Civil Revision No. 3218 of 2019

In the matter of :

Md. Mosharaf Hossain (being dead his heirs: Md. Abdur

Rashid and others)

… Petitioners

-Versus-

Sheikh Mofijul Hossain(being dead his heirs: Mst.

Saleha Khatun alias Saleha Begum and others) and another

…Opposite-parties

Mr. S.M. Ariful Islam, Advocate

…for the petitioners Mr. Sajal Ahmed, Advocate

…For the opposite-parties

Heard on: 23.10.2024 Judgment on: 30.10.2024

Rule was issued on an application under section 115(1) of the Code of Civil Procedure calling upon the opposite-parties to show cause as to why the Order No. 20 dated 11.03.2019 passed by the Joint District Judge, Second Court, Satkhira in Title Appeal No. 80 of 2015 allowing the application for withdrawal of Title Appeal No. 80 of 2015 as well as Title Suit No. 77 of 2007 (renumbered as T.S. No. 53 of 2011) in part should not be set

aside and/or such other or further order or orders as to this Court may seem fit and proper.

The predecessor of the present petitioners as plaintiff filed Title Suit No. 77 of 2007 (re-numbered as 53 of 2011) before the Assistant Judge, Debhata, Satkhira for declaration of title, recovery of khash possession. Ultimately, the suit was dismissed on contest vide judgment and decree dated 30.09.2015.

Having been aggrieved by the said judgment plaintiff preferred Title Appeal No. 80 of 2015 before the District Judge, Satkhira. The said appeal was transferred to the Joint District Judge, Second Court, Satkhira for disposal. During pendency of the appeal plaintiff-appellant on 06.02.2019 filed an application under Order XXIII, rule 1-2 read with section 151 of the Code of Civil Procedure praying for withdrawal of the appeal as well as the suit simplicitor. Learned Joint District Judge after hearing by the order dated 11.03.2009 allowed the application in part, allowing the plaintiff-appellant to withdraw his appeal only, rejecting the prayer so far it relates to withdrawal of the original suit.

Being aggrieved by and dissatisfied with the aforesaid order of learned Joint District Judge, Second Court, Satkhira dated 11.03.2019 the plaintiff-petitioner filed this revisional application and obtained the Rule.

Mr. S.M. Ariful Islam, learned Advocate for the petitioner submits that there is formal defect in the plaint and for which the plaintiff-petitioner filed the application to withdraw the appeal as well as the original suit without further proceeding the same. He next submits that learned Joint District Judge, Second Court, Satkhira committed error of law in allowing the application partly rejecting the other part. He next submits that the right of the plaintiff to withdraw from his suit without seeking further permission to sue afresh is an absolute right. The Court of law has no authority to reject such application and in view of the above, he prays for making the Rule absolute upon allowing his application.

On the other hand, Mr. Sajal Ahmed, learned Advocate for the opposite parties submits that without fulfilling the criterion of Order XXIII, rule 1 and 2, the plaintiff is not entitled to withdraw his suit with permission to sue afresh. When the Court invites Mr. Ahmed’s attention to the application for withdrawal of the appeal as well as the suit filed by the plaintiff-appellant before the appellate Court below, wherefrom it transpires that the application was for withdrawal of the appeal as well as the suit simplicitor without any further prayer allowing him to sue afresh on the self same cause of action. i.e. The plaintiff did not apply before the Court for seeking further permission to sue afresh. Then, Mr. Ahmed did not show his willingness to make further argument.

Heard learned Advocates for both the parties, perused the revisional application toge