Present:-

Mr. Justice Mahmudul Hoque

Civil Revision No. 4021 of 2023 Monira Begum Promi

... Petitioner

-Versus-
Mohammad Kaium

...Opposite-party Mr. S. M. Arif, Advocate

...For the petitioner

Ms. Nusrat Jahan, Advocate

...For the opposite-party

Judgment on 11th December, 2024.

On an application under Section 115(4) of the Code of Civil Procedure this Rule was issued at the instance of the petitioner calling upon the opposite party to show cause as to why the judgment and order dated 02.02.2023 passed by the learned District Judge, Chattogram in Family Miscellaneous Case No. 05 of 2022 allowing the same staying all further proceedings in Family Suit No. 178 of 2021, now pending before the learned 1st Additional Senior Assistant Judge and Family Court, Chattogram 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 Family Suit No.

42 of 2021 in the Court of Family Court (5th Assistant Judge), Chattogram against the opposite-party, for dower money and maintenance on 19.01.2021, renumbered as Family Suit No. 178 of 2021 on transfer to the Court of 1st Additional Senior Assistant Judge and Family Court, Chattogram.

The opposite-party, as plaintiff, filed Other Suit No. 75 of 2021 on 01.03.2021 in the Court of Joint District Judge, Patiya, Chattogram against the present petitioner, as defendant, praying for rectification of kabinnama.

Both the suits are pending before the respective courts. The opposite-party, as defendant, in Family Suit No. 178 of 2021 filed an application praying for stay further proceeding till disposal of Other Suit No. 75 of 2021. Learned 1st Additional Senior Assistant Judge and Family Court, Chattogram heard the application and after hearing by its order dated 30.10.2021 rejected the same. In this situation, the opposite-party, as defendant moved before the learned District Judge, Chattogram who heard the application and after hearing by its order dated 30.10.2022 rejected the same. Thereafter, the opposite-party, as defendant, filed Miscellaneous Case No. 05 of 2022 under Section 25 of the Family Court Ordinance, 1985, before the District Judge and prayed for stay of further proceeding in Family Suit No. 178 of 2021 till disposal of Other Suit No. 75 of 2021, in the alternative for withdrawing both the suits from respective courts and transfer the same to the court of competent jurisdiction at Patiya, Chattogram for analogous trial and filed an application praying for stay further proceeding of Family Suit No. 178 of 2021. Learned District Judge by the impugned judgment and order dated 02.02.2023 disposed of the miscellaneous case and stayed further proceeding in Family Suit No. 178 of 2021 till disposal of Other Suit No. 75 of 2021. At this juncture, the petitioner, moved this Court by filing this application under Section 115(4) wrongly instead of filing miscellaneous appeal (F.M.A.) or application under Section 115(1) of the Code and obtained the present Rule and order of stay.

Mr. S.M. Arif, learned Advocate appearing for the petitioner submits that Family Suit No. 178 of 2021 filed by the petitioner on 19.01.2021 and Other Suit No. 75 of 2021 filed by the opposite- party, as plaintiff, on 01.03.2021 for rectification of kabinnama.

Suit of the opposite-party is subsequent one. For filing subsequent suit proceeding in earlier suit cannot be stayed as per provision of law. Therefore, the trial court rightly rejected the application, but the learned District Judge committed error of law staying further proceeding of earlier Suit No. 178 of 2021 allowing to proceed with the subsequent Other Suit No. 75 of 2021 beyond the scope of law occasioning failure of justice.

Ms. Nusrat Jahan, learned Advocate appearing for the opposite-party No. 1 submits that admittedly, Other