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A Comprehensive Analysis of Rejection of Plaint on the ground of

Maintainability: From Practical Approach

F.A.T. NO. 681 of 2019

F.A. NO. 424 of 2019

Manzur Morshed Khan and others

…… Plaintiffs-Appellants.

-Versus-

Bangladesh Bank and others.

……. Defendants-Respondents.

Written Submission on behalf of the Plaintiffs-Appellants-

1.0. Misapplication and Misinterpretation of the ratio

That the plaintiffs filed the Title Suit for declaration which was dismissed by

rejecting the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908

(shortly referred to as the ‘CPC’) vide judgment and decree dated 10.07.2019. In

passing the said judgment, the learned court below referred 3 (three) judgments,

which are in fact different from the facts, circumstances, related laws and other

issues. The differences are summarized below-

1.1. BSRS vs. Rahman Textile Mills, 51 DLR (AD) 221 (shortly referred as

‘BSRS Case’) -

- In BSRS case, by the majority decision the plaint was rejected upon an

application under Order 7 Rule 11 of the Code of Civil Procedure filed by the

defendants. But in the present case, the plaint was rejected on the very stage of

admission before issuing summon/notice upon the defendants.

- In BSRS case, by the majority decision the plaint was rejected not for the

contents of the plaint or barred by any law but on the ground that the very reliefs

claimed in the suit are specifically barred under Article 34(5)(a)(i) or (ii) or (iii) of

Bangladesh Shilpo Rin Sangstha Order, 1972. The reliefs were barred under law,

thus plaint was barred by law for seeking barred reliefs under law. But in the

present case, the reliefs claimed by the plaintiffs are not barred under any law.

- In BSRS case, the majority decision rejected the plaint not on the ground of

maintainability of the suit but on the ground of ousted provision of law. The ousted

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provision created bar upon those reliefs. But in the present case, there is no such

ouster provision of law.

- The stages of BSRS case and the present suit are completely different. The

former one was long after filing this suit, service of summons, appearing by the

parties and contesting the same; but in the latter case it was only on the preliminary

stage admission of the suit where no summons/notice were served, defendants did

not appear, and none contested the suit.

1.2. WB Industrial Corp vs. Deen Mohammad, 48 DLR (AD) 50 (shortly

referred to as ‘WB Case’) -

- In WB case, the plaint was rejected because there was an application filed by

the defendant under Order 7 Rule 11 before the Hon’ble Court on the ground of

Article 34(5) of the Bangladesh Shilpo Rin Sangstha Order, 1972. But in the present

suit, the plaint was rejected suo moto.

- In WB case, though the plea of malafide was taken, however the Court did

not allow the plea of malafide and bonafide saying that the issue of malafide or

bonafide involved disputed question of fact which required continuation of the suit,

and the plaint was rejected on different ground arising out of the ouster provision of

law. That ouster provision barred the parties from claiming certain reliefs. But in

the present case, the plaint was rejected suo moto without having any such ouster

clause under law. The reliefs prayed in the present suit are not barred under any

law.

- The stages of WB case and the present suit are completely different. The

former one was long after filing this suit, service of summons, appearing by the

parties and contesting the same; but in the latter case it was only on the preliminary

stage admission of the suit without any issuance of summon upon the defendants.

1.3. Burmah Eastern Ltd vs. Burmah Eastern Employees Union, 18 DLR 709

(shortly referred to as ‘Burmah Case’) -

- In Burmah case, the plaint was rejected upon the application filed by the

defendant under Order 7 Rule 11. But in the present suit, the plaint was rejected suo

moto.

- In Burmah case, the very question of ‘legal character’ was questioned, but in

the present suit no such question was raised as to ‘legal character’ of the parties as

well as ‘nature of the suit’.

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- In Burmah case, the Court came to the conclusion that from the mere perusal

of the plaint, it appeared prohibited as well as barred under and by law. But in the

present suit there is no such specific prohibition under law in filing the present suit.

- The stages of Burmah and the present suit are completely different. The

former one was long after filing this suit, service of summons, appearing by the

parties and contesting the same; but in the latter case it was only on the preliminary

stage admission of the suit, just after filing the suit.

Remarks: Therefore it appears that the learned trial court below was out of total

misreading, misconception and misunderstanding of the aforesaid cases applied the

ratio in the present case very arbitrarily and also without applying judicial mind.

2.0. Reference of Article 41(1) of the Bangladesh Bank Order, 1972 in the

impugned judgment –

Article 41 provides that-

“41. (1) No suit or other legal proceedings shall lie against the Bank or

any of its Officer for anything which is in good faith done or intended to

be done in pursuance of Article 36 or Article 37 or Article 38 or Article

39 or Article 40 or in pursuance of the provisions of Chapter IV.

(2) No suit or other legal proceedings shall lie against the Bank or any

of its Officers for any damage caused or likely to be caused by anything

which is in good faith done or intended to be done in pursuance of

Article 36 or Article 37 or Article 38 or Article 39 or Article 40, or in

pursuance of the provisions of Chapter IV.”

The very words ‘good faith’ are the riders of Article 41 which are ultimately

providing some sort of indemnity or liberty or exemption to the bank or its officers

from any suit or legal proceeding for any kind of work or performance in pursuance

of some provisions of law thereof done/carried out in course of duty. In no way, it

restricts/prohibits/precludes/bars upon filing any suit or other legal proceedings in

case of ‘dispute’ arising between the borrower and the creditor bank. Article 41

does not create any express or implied bar upon any relief or contents of a pleading.

The reliefs prayed in the present suit are in no way barred under Article 41.

No definition of good faith is provided under the Bangladesh Bank Order. General

Clauses Act, 1897 provides a definition in the tune “Section (20) : A thing shall be

deemed to be done in "good faith" where it is in fact done honestly, whether it is

done negligently or no”. But the present dispute between the plaintiffs and the

defendants is not a matter of good faith. It is a ‘dispute’ of civil nature which is to

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adjudicated by adducing proper evidences and witnesses before the Court of law.

But the learned trial court below failed to make this difference, and under the

misconception of law referred Article 41 in this suit.

3.0. ‘Return of Plaint’ vs. ‘Rejection of Plaint’

3.1. Return of Plaint

Where at any stage of the suit, the Court finds that it has no jurisdiction, either

territorial or pecuniary or with regard to the subject-matter of the suit, it will return

the plaint to be presented to the proper Court in which the suit ought to have been

filed. Rule 10A of the Civil Rules and Orders lays down the procedure to be

followed by the Court before the plaint is ordered to be returned to be presented to

the proper Court. It is inserted to obviate the necessary of serving the summons on

the defendants where the return of plaint is made after the appearance of the

defendants in the suit. An appellate Court can also return the plaint to be presented

to the proper Court. The Judge returning the plaint should make endorsements on it

regarding (i) the date of presentation; (ii) the name of the party presenting it; and

(iii) reasons for returning it. For not filing of proper Court fees, a plaint can be

rejected too. On the preliminary stage of suit i.e. just after filing the suit, the court

can only return or reject the plaint on the above grounds, as applicable. None of the

aforesaid things happened in this case.

3.2. Rejection of Plaint

The provision of rejection of plant is only provided under Order 7 Rule 11 of the

Code of Civil Procedure on the following grounds -

(a) Where it does not disclose a cause of action.

(b) Where the relief claimed is undervalued.

(c) Where it is insufficiently stamped.

(d) Where the suit appears to be barred by any law.

In the present suit, the trial court below applied the provision (d) using the word

‘explicitly barred by law’. Learned Senior Advocate Mahmudul Islam in his book

on the Law of Civil Procedure explained ‘express bar’. For ready reference, some

important portions are quoted below-

“By “expressly” barred is meant bar by any enactment for the time

being in force.1 Jurisdiction of the civil court to entertain a suit, though

1. Kalipada v. Nurul Islam, 2004 BLD 395.

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of a civil nature, may be barred if it is so provided in a statute. There

are, in fact, many statutes which have made provision specifically

ousting jurisdiction of the civil courts in specified matters.2 A

statutory provision ousting jurisdiction of the civil court must be

strictly construed3 and the exclusion of jurisdiction must be clear and

beyond doubt.4 Bar under s. 44 of the Acquisition and Requisition of

Immovable Property Ordinance against a suit challenging any order

passed or action taken under the Ordinance does not extend to a suit

for declaration that the plaintiff is entitled to the compensation

awarded.5 S. 133(2) of the Code of Criminal Procedure provides that

no order of the Magistrate duly passed under s.133 for removal of

nuisance shall be called in question in any civil court. In view of art.

117 of the Constitution, the civil court’s jurisdiction is ousted in

matters which fall within the jurisdiction of the Administrative

Tribunal.6 S.26 of the Union Parishad Ordinance has put a clear bar to

the determination of election dispute by any court except the election

tribunal.7 The PDR Act bars civil suits under certain circumstances;

but when a property has been auction sold in a proceeding under the

PDR Act in which the plaintiff was not a party, his suit is not barred

under s.37 of that Act.8 S. 102 of the Waqf Ordinance can be

questioned in any court except as otherwise expressly provided in the

Ordinance.9 However, it has been held that where in a suit the order of

the Waqf Administrator for eviction has been challenged and

declaration of title to the waqf property by virtue of adverse

possession has been sought, prima facie there exists a civil dispute and

ss.50 and 102 of the Waqf Ordinance does not operate to oust the

jurisdiction of the civil court to adjudicate the dispute.10”

In this connection, it is pertinent to quote from the finding of Hon’ble dissenting

Judge in said BSRS case-

“Generally speaking under Section 9 of the Code of Civil Procedure any

Civil Court has jurisdiction to try all suits of civil nature excepting suit of

which their cognizance is either expressly or impliedly barred. But it has

been consistently held since the decision in Secretary of State V. Mask &

Company, AIR 1940 PC 105 that "the exclusion of the jurisdiction of the

courts is not to be readily inferred, but that such exclusion must either be

explicitly expressed or clearly implied. It is also well settled that even if

jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into

cases where the provisions of the Act have not been complied with, or the

statutory tribunal has not acted in conformity with the fundamental principles

of judicial procedure."

In the vein of this decision there are numerous decisions, some of them with

extended principles. In the case of Abdur Rouf and others Vs. Abdul Hamid,

2. Director, Housing & Settlement v. AM Hawlader, 9 BLC (AD) 51. 3. Abdul Wadud v. Bhawani, AIR 1966 SC 1718. 4. Dhulabhai v. M.P., AIR 1969 SC 78; Hilly Housing Co-op v. Akhtaruzzaman, 54 DLR 46; Papuri v.

Putcha, AIR 1934 PC 84 (When there is a bar under a law, the court has to strictly construe the provision as

the general rule is in favour of the jurisdiction of the court). 5. Animal Protection Society v. Laxman Chandra, 56 DLR 522. 6. Habibur Rahman v. Accountant General, 1987 BLD 44. 7. Rafiqul Alam v. Mustafa Kamal, 42 DLR (AD) 137. 8. Parul Bala v. Suruj, 53 DLR 481. 9. Syed Masud Ali v. Asmatullah, 32 DLR (AD) 39. 10. Abdul Malek v. Mahbubey Alam, 10 MLR (AD) 8.

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17 DIR (SC) 515 certain proceedings were challenged in the civil court

amongst other grounds on the ground of malafide. The civil court declined

jurisdictions in view of the ouster clause. The High Court on appeal set aside

the Order and remanded the case to the trial court holding that the court had

jurisdiction to try the suit. The High Court's Order was approved by the

Supreme Court of Pakistan with the following observation:

“The decision of the question whether the Civil court had

jurisdiction in the present case would depend cm whether the

impugned orders and proceedings were without jurisdiction.

There is in this case an attack on the proceeding on the ground

of malafide too. A malafide Act is by its nature an Act without

jurisdiction. No legislature when it grants power to take action

or pass an Order contemplates a malafide exercise of power. A

malafide Order is a fraud on the statute. It may be explained

that a malafide Order means one which is passed not for the

purpose contemplated by the enactment granting the power to

pass the Order, but for some other collateral or ulterior

purpose.”

Hamoodur Rahman, C.J. speaking for the Supreme Court of Pakistan had

occasion to take a similar view in the case of Federation of Pakistan Vs.

Saeed Ahmed, PLD 1974 (SC) 151. In course of his speech he laid great

stress upon the malafide acts under a special statute ousting jurisdiction as an

element to make the ouster clause ineffectual. He said:

“Indeed malafide acts stand on the same footing as acts done

without jurisdiction. Similarly coram non judice also stand on

the same footing because these words would literally, mean

that they have been done by an authority or body exercising

judicial or quasi-judicial powers which was not properly

constituted even under the Law under which it was set up and

that its decision is not a decision of a competent authority. If

this be so then such acts do not also qualify for validation and

they have not been saved from scrutiny by the ouster clause,

no matter how widely that ouster clause may be worded.”

Remarks: At this juncture, it can be said that Article 41 does not create any

bar upon any relief, and it has no application under Order 7 Rule 11(d). The

learned court below failed to create the basic difference by applying his

judicious mind.

One issue is to be noted that there is clear difference between Order 7 Rule

11(d) Rule 11(b). Rule 11 (b) empowers the Court to look into the merit and

contents of the plaint whether plaint discloses any cause of action or not. But

the same has to be done after framing specific issue on that point. Whereas,

Rule 11(d) empowers the court to reject the plaint on the ground where the

relief claimed in the plaint is barred under law, thus the very jurisdiction of

the civil court is barred under any law to adjudicate the case and award the

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relief as prayed for. Both (b) and (d) involve the questions of law which can

be done after framing specific issue as those points.

4.0. Application of Section 151 in Rejection of Plaint

Section 26 of the Code of Civil Procedure provides that every suit shall be instituted

by the presentation of a plaint or in such manner as may be prescribed. Order IV

further provides that after institution of each suit, the same shall be numbered and

registered as per the admission. Order 4 provides as follows-

“Order IV

Institution of Suits

“(1) Every suit shall be instituted by presenting to the Court or such

officer as it appoints in this behalf a plaint together with as many true

copies of the plaint as there are defendants for service of summons

upon such defendants.

(1a) The Court fees chargeable for service of summons shall be paid in

the case of suits when the plaint is filed, and in the case of all other

proceedings when process is applied for.

(1b) A plaintiff shall file, along with the plaint, for each defendand a

copy of the summons along with a pre-paid registered

acknowledgement due cover with complete and correct address of the

defendant written on it.

(2) Every plaint shall comply with the rules contained in Orders VI

and VII, so far as they are applicable.

2. The Court shall cause the particulars of every suit to be entered

in a book to be kept for the purpose and called the register of civil

suits. Such entries shall be numbered in every year according to the

order in which the plaints are admitted.”

Rules 47 to 55 of Civil Rules and Orders provide the provisions for presentation,

registration, etc and examination of plaint. For ready reference, the provisions are

quoted below-

“47. Ordinarily the Sheristadar or in his absence the officer acting as a

Sheristadar shall be authorized to receive plaints.

48. Every plaint brought for presentation shall have affixed to the top

left hand corner of its first page, a slip of paper in the following form,

with the particulars required written on it excepting the filing number

which should be left blank:

No. …………………………..

Class of suit …………………

Plaintiff ……………………..

Defendant …………………...

Value of suit ………………..

Advocate ……………………

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Note: It should be particularly noted that additions made by the

Supreme Court (High Court Division) to Schedule 1 of the C.P.

Code require that every plaint shall be accompanied by the

necessary number of its copies, draft forms of summons, and fees

for the service thereof, (Or. 7, r. 9(1-A), and a statement of the

party’s address for service (see rule 18 and Or 6, r. 14-A).

49. (1) Immediately on receipt of a plaint, a serial (consecutive) number

shall be marked on it to indicate the sequence of filing, the same number

being simultaneously noted on the attached slip of paper. The slip shall

then be detached, stamped and made over to the person presenting the

plaint, then and there. These numbers shall be quoted in all papers that

may be filed hereafter in connection with the plaints so long as they are

not registered.

Note: All plaints shall be marked with filing number on the same

day they are filed and the slips attached shall be delivered

forthwith.

(2) All such plaints shall be entered at once in the prescribed register

No. (R) 12-A called the Filing Register in the order in which they have

been filed.

Note: A separate volume shall be opened for each class of suits

from the beginning of January each year. The number in the

Filing Register will be the same as the number in the General

Register of suits.

50. All plaints presented must, on being received be registered (i.e.,

entered in the Register of Suits) in the same order as they appear in the

Filing Register, irrespective of their possible rejection (under Or. 7, R

11) or return (for amendment or presentation to proper Court).

51. Every plaint shall ordinarily be registered on the day it is received

and should it be found impossible, for any reason, to register it within

24 hours of its receipt, the fact shall be reported to the presiding Judge

of the Court concerned.

Note: Simultaneously with the registration of a plaint and the

fixing of the first date, the suit should be entered in advance in

that days page of the Diary of the Court under the heading

appropriate to the purpose for which the first date is fixed.

52. As soon as possible after registration of the plaint, the first date

fixed for the suit and the purpose for which it has been fixed shall be

entered in columns 5 and 6 of Filing Register [Form No. (R) 12-A].

53. The first dates fixed for appeals and all petitions (excluding

execution petitions) that require registration shall be entered in a register

in Form No. (M) 1-Daily register. Entries shall be made therein from

day to day until the Form is exhausted. If the same register is used for

miscellaneous cases, appeals, etc., they should be grouped separately

under the different heads. The presiding Judge shall put his dated

signature below the last entry for each day. The register shall be laid at

some conspicuous part of the Court room everyday by the sitting hour

for inspection by the parties and the Advocate.

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Note: Form No. (M) 1-Daily register of Petitions and Appeals

Registered shall be destroyed after three months.

54. The date of filing shall be stamped on a plaint as soon as it is field.

55. (1) On presentation or receipt of a plaint, the Sheristadar of the

Court shall examine it in order to find out whether all the requirements

of law have been complied with. This examination should be

particularly directed to ascertaining, among other things-

(i) Whether the plaint bears full court-fee stamps in accordance with

the valuation put upon it;

(ii) Whether it has been property signed and verified (Or. 6, rr. 14 and

15);

(iii) Whether it complies with the requirements of Or. 7, rr. 1, 2, 3, 4,

6, 7 and 8;

(iv) Whether it is accompanied by the necessary copies of plaint and

process-fees and draft forms of summons (amended Or. 7, r. 9(1-A);

(v) Whether the documents attached to the plaint (if any) are

accompanied by a list in the prescribed form [Or. 7, r. 9(1), see also r.

9(4)];

(vi) Whether it is accompanied by the party’s address as required by

Or. 6, r.14-A and contains the necessary particulars (vide rule 21);

(vi) Whether in the case of minor plaintiffs and defendants the

requirements of Or. 32, rr. 1 and 3 have been complied with and the

necessary application supported by an affidavit verifying the fitness

of the proposed guardian ad litem of t he minor defendant (s) has

been filed;

(viii) Whether the suit is within the pecuniary and territorial

jurisdiction of the Court;

(ix) Whether the vakalatnama has been properly accepted and

endorsed the Advocate [vide rule 822, and in particular sub-rule (6)

of the rule], and whether in the case of illiterate executants, the

provisions of rules 821 and 822(4) have been complied with.

(2) The officer examining the plaint is required to certify on the top

left hand margin of the first page of the plaint the sufficiency or

otherwise of the stamp borne and to note the amount of deficiency, if

any. A second certificate is to be appended if and when the deficiency

is collected.

(3) The officer examining the plaint should refer to the presiding

Judge if he thinks that it should be returned or rejected for any

reason. It will then be for the Judge to deal with the matter.

Note: 1, See also paragraph 1, 2 and 3 of the Civil Suit

Instructions manual, 1935.

Note: 2, As to appearance of defendant and filing of written

statement, see paragraph 9 to 11, civil Suit Instructions

Manual, 1935.

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Note: 3. As to the procedure to be followed in cases where

there are one or more minor defendants (see rule 124 chapter

6).

5.0. Rejection of plaint on ground of maintainability

As per the aforesaid provisions of law, after institution of suit a duty automatically

casts upon the Court to go to next step by issuing and serving summons upon the

parties under Order 5, which is after chapter 4 of the CPC. On the other hand, the

Court may return the plaint on the grounds stated earlier or may raise the question

of maintainability only after framing issue on that point. Because, the ‘question of

maintainability’ is absolutely an issue of law which cannot be determined without

framing specific issue on that point. Order 14 Rule 2 provides that-

“Where issues both of law and of fact arise in the same suit, and the

Court is of pinion that the case or any part thereof may be disposed of

on the issues of law only, it shall try those issues first, and for that

purpose may, if it thinks fit, postpone the settlement of the issues of fact

until after the issues of law have been determined.”

Even if the Court finds a plaint is not properly formulated, it may not return or

reject the plaint without given with the opportunity of amendment of plaint.

It was held in Fazlur Rahman vs. Rajab Ali, 30 DLR (SC) (1978) 30 -

“The main consideration underlying the general rule which deprecates

piecemeal trial is to avoid a protracted litigation and unnecessary

expenditure. The reason behind the special provisions of the Code

which seek to give priority to the determination of certain issues before

taking up the hearing of other issues appears to be also precisely the

same namely, economy of time and expenses. These special provisions

are contained in Order 14, Rule 2 and Order 15, Rule 3 of the Code and

there is hardly doubt the main object behind these provisions is the

shortening of time and the lessening of expenditure. As we have already

noticed, the provision of Order 14, Rule 2 is clearly obligatory but under

Order 15, Rule 3 of the Code the Court has a kind of discretion. What is

necessary id the trial of a suit is to reconcile the special provisions as to

the trial of certain issues prior to the determination of the suit on other

issues with the general rule deprecating piecemeal trial and to make an

harmonious application of the different provisions of the Code.

In the present case it appears that the Court rightly set down the hearing

of the suit before framing the issues formally on an issue of law as to the

maintainability of the suit which goes to the root of the litigation and

raises the question of jurisdiction of the Court to try eth dispute. It,

however, appears that subsequently this question was completely lost

sight of for some time, but as soon as it was brought to the notice of the

learned Subordinate Judge, he became alive to it and set down the

hearing of the suit on the question of its maintainability indicated above.

Having regard to the nature of the dispute raised in the suit there can be

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no manner of doubt that, the question as to the maintainability of the

suit relates to an issue of law, the decision of which will settle the

question of jurisdiction and dispose of the entire suit and as such it

clearly comes within the provision of Order 14, Rule 2 of the Code.

Under the circumstances, we do not think that the learned Subordinate

Judge was wrong in any way in setting down the hearing of the suit on

the question of maintainability, the High Court's decision for quick

disposal of the suit notwithstanding. We appreciate the anxiety

expressed by Mr. N. U. Haider, learned Counsel appearing for

Respondents No. 1 and 2 for the expeditious disposal of the suit in

which the question as to the validity of an election has been raised but

the procedure suggested by him for such disposal, in support of which

he has advanced his contentions, is not only contrary to the provision of

the Code but is also not likely to serve the purpose of shortening the

litigation.”

In Nakul Chandra Saha and Ors. vs. Babu Subash Chandra Sarker, 4 MLR (AD)

(1999) 426 it was held that -

“The learned Single Judge by the impugned Judgment and order made

the Rule absolute with the finding that the plaintiff made out a case that

it had a right to administer the Trust Estate to the exclusion of defendant

No. 1 who was an usurper causing irreparable loss and damage to the

trust property and that in view of the nature of allegation the said is not

barred under section 42 of the Specific Relief Act and that where a

plaintiff seeks for a declaration that he has a right in the suit property to

the exclusion of the defendant and asked in the form of a declaration the

defendant has no right or title therein the relief prayed for is not outside

the ambit of section 42 of the Specific Relief Act. The learned Single

Judge also held that the question of maintainability of the suit may be

determined at the trial and the plaint could not be thrown out in limini.

Mr. M Nurullah, learned Advocate for the petitioner, submits that from

the plaint it appears that defendant No. 1 has been possessing the suit

property and conducting the Trust Estate as one of the trustees and the

plaintiff having failed to produce any evidence to show that he was ever

appointed as trustee of the Estate, he is not entitled to get any

declaration of status or right and his prayer being in the plaint was for a

negative declaration. The learned Single fudge wrongly not agreeing

with the concurrent view of the Courts below who rejected the plaint of

the instant suit on the ground that the suit was not maintainable for

negative declaration and was barred under section 42 of the Specific

Relief Act. He further submits that the learned Single Judge of the High

Court Division fell in error of law in holding upon misreading of the

plaint that the plaintiff's suit is one in assertion to his own right to deal

with the Estate to the exclusion of the defendant No. 1 and, as such, the

learned Single Judge fell in error in holding that question of

maintainability of the suit cannot be decided under Order VII rule 11

CPC. He also submits that the learned Single Judge was wrong to

interfere with the concurrent decision of the Courts below in revisional

jurisdiction.”

In Abdul Jalil and others vs. Islamic Bank Bangladesh Ltd. 20 BLD (AD) (2000) 278, 53

DLR (AD) 12, it was held that -

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“It is well settled now that a plaint may be rejected under Order 7 Rule

11 of the Code of Civil Procedure merely on a plain reading of the

plaint but in exceptional circumstances the court may invoke its inherent

jurisdiction and can throw the plaint out in limini. It is also well settled

that the plea of implied bar should be decided on evidence unless the

fact disclosed in the plaint clearly indicate that the suit is not

maintainable. In exceptional cases recourse may be taken even under

section 151 of the Code of Civil Procedure. It is also well settled that in

an application for rejection of plaint on the ground of undisclosed cause

of action the court should not dissect the plaintiff's case part by part.”

It has been held in the case of Bangladesh Jatiya Samabaya Shilpa Samity Ltd. vs.

M/S Shan Hosiery, Proprietor Md. Abu Taleb and others, reported in 12

BLT(AD)(2004) 253, which is quoted below -

"With regard to rejection of plaint under Order VII Rule 11 of the Code

of Civil Procedure, the High Court Division rightly found that in

deciding the question as to whether a plaint is liable to be rejected the

court is always required to peruse the plaint only and court is not

permitted to travel beyond the plaint to dig out grounds to reject the

plaint which is a settled principle of law."

It has been held in the case of Ismat Zerin Khan vs. The World Bank and others, 11

MLR (AD) (2006) 58 that –

"Plaint cannot be rejected under Order VII Rule 11 of the Code of Civil

Procedure either on the question of law or on fact before the filing of the

written statement by the defendant."

In an unreported case, Aa. Na. Ma. Selim Ullah vs. Kamrun Nahar Kamal and

others, Civil Revision No. 3929 of 2014 it was held by the Hon’ble High Court

Division that-

Further, after examining the series of decisions of our Apex Court

regarding of the Code of Civil Procedure, we may refer some of the

decision Order VII Rule 11 reported in Abdul Malek Sawdagar Vs. Md.

Mahbubey Alam, 57 DLR (AD) 18, Nur Muhammad Vs. Mainuddin, 39

DLR (AD) 1; Abul Khair (Md) Vs. Pubali Bank Ltd., 53 DLR (AD) 62,

Bangladesh Shilpa Rin Sangstha Vs. Rahman Textile Mills Ltd., 51 DLR

(AD) 221, Nurunnessa Vs. Mohiuddin Chowdhury 49 DLR (AD) 234,

Eastern Bank Ltd. Vs. Sub-Ordinate Judge, 49 DLR 531, Anath Bandhu

Guha & Sons Ltd. Through its Attorney Md. Sirajul Hoq Vs. Babu

Sudhangshu Shekhar Haider, 42 DLR (AD) 244, Kazi (Md) Shahajahan

and another Vs. Md. Khalilur Rahman Madbar and others, 54 DLR

(AD) 125 and Ismat Zerin Khan Vs. the World Bank and others, 11

MLR (AD) 58, wherein the principles laid down as under:-

(I) The well settled principle of laws relating to Order VII Rule 11

are that the plaint can be rejected only on reference to plaint

itself as whether it is barred in any of the four clauses of Order

VII Rule 11 of the Code of Civil Procedure.

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(II) Plaint cannot be rejected on defense material as well as on mixed

question of law and fact.

(III) Where evidence is required and where there is material, plaint

cannot be rejected.

(IV) Plaint can be rejected if it does not disclose a cause of action and

barred by any law.

(V) There is no hard and fast Rule when an application for rejection

of plaint is to be filed but ends of justice demands that it must be

filed at the earliest opportunity.

(VI) Plaint cannot be rejected before filing of the written statement.

Now, let us focus in the Indian jurisdiction regarding the principles of

rejection of plaint. In the case of M/S Crescent Petroleum Ltd. Vs.

Manchegorsk and another, AIR 2000 Bom 161 at 168 it has been held

that:-

'This power ought to be used only when the Court is

absolutely sure that the plaintiff does not have an arguable

case at all. The exercise of this power though arising in

Civil Procedure can be said to belong to the realm of

criminal jurisprudence and any benefit of the doubt must

go to the plaintiff, whose plaint is to be branded as an

abuse of the process of the Court. This jurisdiction ought

to be very sparingly exercised and only in very

exceptional cases. The exercise of this power would not

be justified merely because the story told in the pleading

was highly improbable or which may be difficult to

believe.'

Now, let us consider the inherent power of the Court, where a plaint

may be rejected by the Court even the provisions of Order VII Rule 11

of the Code of Civil Procedure are found not to be applicable.

In the case of Abdul Jalil and others vs. Islamic Bank Bangladesh

Limited and others, reported in 53 DLR (AD) 12, it has been held that:-

"Now it is a well settled principle of law that if the continuation

of the suit is found to be an abuse of the process of the court, if

the suit is foredoomed or if the ultimate result of the suit is as

clear as the day light, the suit should be buried at its inception by

rejecting the plaint by invoking inherent powers of the Court

provided under section 151 of the Code of Civil Procedure."

Further, on perusal of the facts of the present case, it appears to be

distinguishable from the case reported in 53 DLR (AD) 12. In

exceptional situation a plaint can be rejected under Section 151 of the

Code of Civil Procedure even if it does not come within the mischief of

the Rule, but such situation is absent in the present case.

Now, keeping in mind, all the principles relating to Order VII Rule 11

of the Code of Civil Procedure, we have thoroughly gone through the

plaint and considered the submissions of the learned Advocates for both

the parties very carefully.

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The contentions of the learned Advocate for the petitioner are that the

plaint is liable to be rejected as because the alleged registered deed of

partition either is not a sale deed or a decree of a court rather it is a

family settlement deed among the co-sharers for their ancestral

properties and cannot be cancelled at the instance of the two co-sharers

as per provision of Section 39 of the Specific Relief Act and further

non-consideration of the validity of the impugned registered partition

deed under Section 60(2) of the Registration Act, 1908, the trial Court

has committed an error of law, in our opinion all these issues have no

manner of application in the present case.

Further, the submissions of the learned Advocate for the opposite parties

are that the defendants have not yet filed their written statements, are

not fully correct as it appears that defendant No. 12 has filed a written

statement denying the averments made in the plaint. However,

defendant No. 3 who has filed the application for rejection of plaint did

not file the written statement.

In the light of the clear pronouncement of law relating to Order VII Rule

11, it is well settled principle of law that to decide the fate of a plaint

under Order VII Rule 11 of the Code of Civil Procedure, averments in

the plaint have to be read without looking at the defense and as such

whether the registered deed of partition is a sale deed or a decree of

Court or a family settlement deed among the co-sharers for their

ancestral properties and registration and endorsement was genuine,

regular and in order and plaintiffs have no possession over the suit land

rather the petitioner is in possession of the same, in our view all these

issues can only be decided by taking evidence by the trial Court.

It has been decided by our Apex Court in the Case of Head Mistress,

Hazrat Shah Ali Girl's High School Vs. Md. Ibrahim reported in 65

DLR (AD) 300 that, "The suit cannot be finally adjudicated without

taking evidence. The High Court Division acted beyond his jurisdiction

and finally adjudicated the case which he cannot do before trial and he

also cannot allow the prayer of the plaintiff directly asking authority to

give fresh appointment to the plaintiff from the date of dismissal."

Similar view has been expressed in the recent case of Comprehensive

Holdings Ltd. Vs. MH Khan Monju reported in 69 DLR (AD) 420.

From the above discussions, it appears that the grounds urged for in the

application for rejection of plaint are absolutely the subject matter of

evidence, which cannot be decided before taking evidence.

Now, on plain reading from the statements of plaint of the present case

it is evident that the same clearly discloses the cause of action, the relief

claimed is not under valued, the plaint was not written upon the paper

insufficiently stamped and not barred by any other law.

So, it is our considered view that the rejection of a plaint is a serious

matter and the Court has a duty to examine the plaint very carefully

when considering the issues relating to Order VII Rule 11 of the Code

of Civil Procedure. It cannot be ordered without satisfying the

requirement of the above said provision and only in very exceptional

cases, this power should be exercised.

Considering the above facts and circumstances of the case and after

examining the decisions of our Apex Court as well as of the Indian

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Jurisdiction, we can safely come to a conclusion that the learned Court

below has not committed any error of law in rejecting the application,

for rejection of plaint under Order VII Rule 11 of the Code of Civil

Procedure, rather the learned Court below rightly passed the impugned

Order dated 27.03.2014.”

In another case, Md. Shofiqur Rahman vs. Bangladesh Bank and others, Civil

Revision No. 878 of 2016 it was held by the Hon’ble High Court Division that -

“To deal with the mater another legal aspect should be taken into

consideration whether the present suit can be dismissed on the

preliminary point of maintainability without framing any issue of law to

the very root of the case, such as on the point of bar of the suit by any

provision of law.

Order XIV, Rule 2 clearly indicates that if the court is of opinion that

the suit or any part thereof may be disposed of on an issues of law only,

it shall try the issue of law even without setting the issues of fact.

The power of try preliminary issue of law is to be exercised only when

it is clear that the decision will decide the suit finally once for all.

Now, keeping in view the above settled principles in deciding issues in a

suit particularly any issue of law independently, when the present case

is considered, it is found that the suit was dismissed by the learned Joint

District Judge holding that the same is no maintainable while disposing

of an application filed by the plaintiff under Section 151 for staying

operation of the publication of the plaintiffs name in the CIB report of

Bangladesh Bank classifying him as loan defaulter. On scrutiny of the

record it appears that after filing of the suit on 06.04.2016, the plaintiff

at one filed an application for stay and only on that connection the

learned Joint District Judge on next day by order dated 07.04.2016 held

that the suit was not maintainable mainly on the ground that the plaintiff

has no locus-standi to sought for a declaration against the report

published by the CIB of Bangladesh Bank declaring the plaintiff as loan

defaulter. It appears that the trial court without framing any issue in the

suit passed the impugned order of dismissal of the suit on the ground of

maintainability.

In this connection reliance my b e placed to the decisions reported in 30

DLR (AD) 30 and 50 DLR (AD) 1.

Further the court has no option having regard to the provision of Order

XIV, rule 2 of the Code of Civil Procedure should not decide the

question of maintainability without framing issue on it. Thus the Joint

District Judge wrongly decided the question of maintainability of the

suit without framing proper issues.- Reference 48 DLR 367.”

6.0. Scope of Section 42 of the Specific Relief Act, 1877 -

There is no formal definition of ‘the suit for declaration of title’ or ‘title suit’ under

any statute. In general, suit for declaration of title always denotes a civil suit filed

under Section 42 together with Section 5 of the Specific Relief Act, 1877

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(henceforth referred to as ‘SR Act’) praying declaratory reliefs. Of all provisions of

the said Act, Section 42 is the most frequently invoked in civil litigations in

Bangladesh.11 Under this Section, declaration of title suit is filed for declaratory

relief. ‘Declaratory relief’ and ‘declaration of title’ are different. The second one is

the part of the former synthesis which offers various kinds of reliefs in the nature of

declaration that includes declaration of title. Though most of the civil suits seeking

declaratory reliefs are generally registered as ‘title suit’ in our country, however not

all the declaratory prayers are for declaration of title, such as, partition suit, other

class suit and others12.

In this context, ‘title’ shortly refers to ‘entitlement’ so far reliefs are concerned, in

which the party seeking relief is entitled to or not. Any right or legal character in

which a person is entitled can file a title suit. However, ‘entitlement’ refers to a

wider scope than ‘title’. Under the circumstances, whether title suit under Section

42 can embrace all kinds of declaratory reliefs is still open for controversy. It’s not

even required with hard and fast rule, rather openness of the declaratory prayers

with the discretionary power of the Court keeps Section 42 time worthy and well

espousal. This is one of the main reasons behind that still the application of Section

42 has not fallen blur despite the promulgation of several new enactments e.g. Artha

Rin Adalat Ain, 2003, Companies Act, 1994, Bank Company Act, 1991, etc

restraining the jurisdiction of civil court to some extents. However, the wide scope

of declaratory relief exercisable with the discretionary power of the Court under

Section 42 is playing key role in civil litigation protecting the rights of the civilians

irrespective of the controversy whether this Section is exhaustive for entertaining all

kinds of declaratory reliefs.

Legal Originator

When a suit is filed for declaration of title, it is basically the relief which is sought

for in the form of declaration. The declaration is like praying for something to be

declared in favor of the party who is praying so (generally plaintiff) against the

party who will be bound by the declaration (generally the defendant). For example:

if the plaintiff is praying for declaring his or her title of ownership on certain land

against the defendant, the plaintiff will pray for declaring the title of ownership

from the Court. If the plaintiff is praying for declaring his or her dismissal from

service by the defendant is illegal and the same should not be binding upon him or

11Probir Neogi, The Law of Specific Relief (first published 2011, Mullick Brothers) 553. 12Example : praying that some documents are not binding, a committee is illegal, not entitled to the disputed

post or committee, not entitled to publish plaintiff’s name, a negotiable instrument is not binding, etc.

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her, then he or she will pray for declaring his or her dismissal from service is illegal

and not binding upon him or her.

Suit for declaration of title denotes a suit of civil nature filed under Section 42

whereupon the relief is fundamentally rooted in Section 5 of the same Act. Section

5 provides the types of specific reliefs can be given.13 The provision of Section 5(d)

provides the specific relief by determining and declaring the rights of parties

otherwise than by an award of compensation. Sections 42 and 43 elaborate this

relief further. Section 42 provides that any person entitling to any legal character or

property can file suit for declaration of title. It allows a person to file declaration

suit for his entitlement to any legal character or to any right as to any property

against any person denying or interested to deny his title to such character or right.14

Two very important words i.e. the elixirs of this Section are ‘entitlement’ and ‘title’

along with ‘legal character’ and ‘right as to any property’, which are to be examined

elaborately, as hinted above, for proper understanding the nature and scope of suit

for declaration of title.

Legal Character or Right

A suit for declaration is maintainable under Section 42 as to any legal character or

to any right as to any property of the plaintiff if the defendant denies or is interested

to deny his or her title to such character or right. If the above conditions are

satisfied, the plaintiff does not need to ask for any further relief than a mere

declaration.15

The concept of ‘legal character’ in Section 42 is wide enough to include the status

of a person. In order to entitle the plaintiff to bring a suit under Section 42, it is not

necessary that the defendant should actually deny the plaintiff’s legal character. If

the claim which might be set up by the defendant is a hindrance to the plaintiff in

the exercise of his or her rights or would expose him or her to liability if he or she

13 Section 5 : Specific relief is given-

(a) by taking possession of certain property and delivering it to a claimant;

(b) by ordering a party to do the very act which he is under an obligation to do;

(c) by preventing a party from doing that which he is under an obligation not to do;

(d) by determining and declaring the rights of parties otherwise than by an award of compensation; or

(e) by appointing a receiver. 14 Section 42 of the Specific Relief Act, 1877 reads out “Any person entitled to any legal character, or to any

right as to any property, may institute a suit against any person denying, or interested to deny, his title to such

character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the

plaintiff need not in such suit ask for any further relief:

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief

than a mere declaration of title, omits to do so.

Explanation - A trustee of property is a "person interested to deny" a title adverse to the title of someone who

is not in existence, and for whom, if in existence, he would be a trustee.” 15Divisional Forest Officer, Dhaka vs. Md. Shahabuddin and others [2008] 5 ADC 91.

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disregarded, it he or she might come to Court for a declaration that the claim so set

up by the defendant was not well founded.16 Thus, ‘legal character’ denotes a

personal and special right not arising out of contract or tort, but of legal recognition.

For example, rejection of plaintiff's application for allotment may create legal

recognition enforceable against a person whose similar application is accepted.17

‘Legal character’ is nicely explained in the case of Burmah Eastern Ltd. vs. Burmah

Eastern Employees' Union18, wherein, legal character is used as synonymous with

the expression ‘status’. However, this ‘status’ or ‘character’ should be conferred by

law. It was held that the expression ‘legal character’ or ‘status’ denotes a character

or status conferred by law on an individual or a number of individuals, viewed as a

unit of society and not shared by the generality of the community but only by

individuals, placed in the same category of character. The character itself must be

conferred by law on persons viewed from the standpoint of membership of the

community.19

Therefore, the character i.e. the status of the plaintiff must have legality for seeking

relief. The relationship between the ‘legality’ and the ‘character of the plaintiff’

along with ‘the relief claimed thereon’ must have direct nexus and close connection.

It depends on the plaintiff, the subject matter and the relief sought for. Therefore, it

is ultimately each fact and situation that determines the legal status or legal

character of the parties. In addition, it’s not the parties only who determine their

characters. Parties express their position and status with their facts. It’s the Court

who is to decide the ‘status’ or ‘character’. It leaves the power of the Court

discretionary and wide. But it does not permit an unrestricted right of instituting all

kinds of declaratory suits at the will and pleasure of parties. The right is strictly

limited. This is patent. The plaintiff cannot allege any infringement of a right to

property.20 This discretionary power is to be exercised cautiously and not going

beyond the setting norms and principles developed through judicial pronouncement

throughout the years. A discussion on this point is delineated afterwards.

Apart from legal character, the person having right to any property also entitles a

person to file suit for declaration under Section 42. Right to any property means and

includes any right to any kind of property. Since under the Act, there is no

definition of ‘right’ or ‘property’ or ‘right to property’, therefore right may include

16Noor Jehan Begum vs. Eugene Tiscenko [1942] AIR Cal 325. 17Mirpur Mazar Co-operative Market Society Ltd vs. Secretary, Ministry of Works, Government of

Bangladesh and ors [2000] 52 DLR 263. 18 [1967] PLD Dac 190. 19Ibid. 20Ibid.

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any kind of rights which gives the claimant a proper standing for praying

declaratory relief. Property may include immoveable and moveable of any kind.

Definitions of ‘immoveable property’ and ‘moveable property’ are provided under

the Transfer of Property Act, 1882, the General Clauses Act, 1897, the Registration

Act, 1908 and others. An absolute owner of a property if gets dispossessed and his

title gets clouded, then the owner can file declaration suit for decreeing title in his or

her favor for making the same free from all clouds and disputes. A leaseholder can

file suit if he is dispossessed illegally. Anyone having right to any property can file

title suit.

This right may be present or future, but not too remote. A remote possibility of

acquiring title in any property (which is not certain yet) cannot create any standing

for seeking declaratory relief. The right must be existing interest and entitlement at

the very time of seeking relief. A mere contingent right which may never develop

into an actual right is not enough for a suit for declaration of title. The main

contention is that unless the claimant has the right to title, he or she cannot pray for

declaration of title. For getting and proving something in his or her favor he or she

must have had it, perhaps for once, perhaps recently has been deprived of his right,

but in all cases he or she must have right and he or she has to prove it, because in

the civil suit the party seeking relief must prove his case. The Court applying its

discretion determines the right of the claimant with regard to the relief prayed

before it. In exercise of this sound discretion, the Court should make a declaration

as to the right which exists though exercise of it may be contingent on something in

future.21 The Court has always the discretionary power to reach at the decision

regarding right (present or near future) of the parties in the subject matter of the

suit. Even legitimacy of a child born or in womb can be determined through

declaration suit.22 However, the spirit is that the right over the declaratory prayer

along with the very subject matter of the suit must exist and the nexus is not too

remote in any way. Be that as it may, although Section 42 is not exhaustive and

declarations independent of that provision is even permissible but a suit for

declaration, however, would not lie when the plaintiff is neither entitled to any legal

character or status nor clothed with any right.23

Discretionary Power

Relief under Section 42 is discretionary which cannot be claimed as of right.

Section 42 does not postulate all types of declarations but only a declaration that the

21Bombay Burma Trading Corp. vs. Smith [2000] ILR 17 Bom 197. 22 Mankuwar Asaram vs. Mt. Bodhi Mukundi and others [1957] AIR MP 211. 23Shafi A. Choudhury vs. Pubali Bank Ltd. and others [2002] 22 BLD 423.

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plaintiff is entitled to legal character or to any right as to any property and it

warrants this kind of relief only under certain special circumstances. Relief

enshrined under Section 42 is a discretionary relief and the said discretion is to be

exercised on sound judicial principles.24

The yardsticks for such discretion though has not been defined under this Section or

anywhere in the Act, the very words ‘against any person denying’ or ‘interested to

deny’ the title of the plaintiff to the legal character or right implicate the benchmark

for exercising such discretion. The Court must satisfy itself with the legal character

or right of the plaintiff along with the fact that his right has been denied or

interested to be denied by the defendant. The relationship between the plaintiff and

the defendant is ‘denial’. On the plaintiff’s part, the plaintiff has to prove his or her

legal right or status, and on the other hand, on the defendant’s part, the plaintiff has

to prove that the defendant has denied or is denying his or her legal right or status.

7.0. Application of Section 9 of the Code of Civil Procedure

Section 9 reads out as follows -

“9. The Courts shall (subject to the provisions herein contained) have

jurisdiction to try all suits of a civil nature excepting suits of which their

cognizance is either expressly or impliedly barred.

Explanation.-A suit in which the right to property or to an office is

contested is a suit of a civil nature, notwithstanding that such right may

depend entirely on the decision of questions as to religious rites or

ceremonies.”

Explaining Section 9 D.F. Mulla explained in his book on the Code of Civil

Procedure, 15th Edition, 2012, p. 33-34 in the following manner –

“Scope

Section 9 relates to the subject-matter of jurisdiction of a court. As per s.

9, in all types of civil disputes, the civil Court has inherent jurisdiction,

unless a part of that jurisdiction is curbed from such jurisdiction,

expressly or by necessary implication, by any statutory provision and is

conferred on any other tribunal or authority.25 A statute, therefore,

expressly or by necessary implication, can bar the jurisdiction of Civil

Courts in respect of a particular matter. The plea of lack of jurisdiction

can be raised at any time, even in second appeal, so also on the

execution side.26 Analysing the content of s. 9, the Supreme Court has

held that the section has a positives as well as a negative aspect. The

positive aspect is to be found in the earlier part, which opens the door

widely, by entitling Civil Courts to entertain all suits of a civil nature.

The negative aspect is to be found in the latter half, which debars entry,

24. Government of Bangladesh, represented by Secretary, Housing and Settlement Bangladesh Secretariat &

others vs. ASM Firojuddin Bhuiyan [2001] 53 DLR 522. 25. Sankar Narayan Potti v. K Sreedevi (1998) 3 SCC 751, AIR 1998 SC 1808. 26. Bharvad Chotta Bhaga v. Bharvad Jagadahya AIR 1999 Guj 17.

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only if there is an express or implied bar.27 A court is said to have

jurisdiction of the subject-matter of a particular controversy if the court

has the authority to hear and decide causes of a class to which the

particular controversy relates and does not depend upon the merits of its

decision.28 The jurisdiction of the court is to be determined on the basis

of the allegation made in the plaint and does not depend upon the

defence taken in the written statement.29

Section 9 of the Code of Civil Procedure, 1908 provides that whenever a

question arises before the Civil Court, whether its jurisdiction is

excluded expressly or by necessary implication, the court feels naturally

inclined to consider whether the remedy afforded by an alternative

provision prescribed by a special statue is sufficient or adequate.30

Where a statute has given finality to the orders of the special tribunal,

the Civil Courts jurisdiction can be regarded as having been excluded if

there is an adequate remedy to do what the Civil Court would normally

do in a suit. In other words, even where finality is accorded to the orders

passed by the special tribunal, one will have to see whether such special

tribunal has the powers to grant reliefs which a Civil Court would

normally grant in a suit and if the answer is in the negative, it would be

difficult to imply or infer the exclusion of the Civil Courts jurisdiction.31

However, the finality clause in a statute is not a bar to the exercise of

constitutional power of judicial review of the High Court under Art. 226

of the Constitution.32

A party seeking to oust the jurisdiction of ordinary Civil Courts shall

establish its right to do so.33 And the onus of establishing the plea of bar

of jurisdiction is on the party setting up the plea.

The existence of a jurisdictional fact is the sine qua non or condition

precedent to the assumption of jurisdiction by a Court or Tribunal. The

fact or facts upon which the jurisdiction of a Court, a Tribunal or an

Authority depends can be said to be a jurisdictional fact. If the

jurisdictional fact exists, a Court, Tribunal or Authority has jurisdiction

to decide other issues. If such fact does not exist, it cannot act. By

erroneously assuming existence of a jurisdictional fact, a subordinate

Court or an inferior Tribunal cannot confer upon itself jurisdiction

which it otherwise does not possess.34”

Neither the reliefs prayed nor the statements made in the plaint are barred under any

law, thus not either expressly or impliedly barred by law. Therefore, the subject

matter of the suit before this Hon’ble Court is of civil nature which is not denied by

the learned court below itself; as such the same qualifies the ingredients of Section

7 of the CPC, Sections 5 and 42 of the SR Act. But the trial court below failed to

27. PMA Metropolitan v. Moran Mar Marthoma AIR 1995 SC 2001, 1995 Supp (4) SCC 286. 28. Pankaj Bhargav v. Mahender Nath (1991) 1 SCC 556, AIR 1991 SC 1233. 29. Abdulla Bin v. Galappa AIR 1985 SC 577, (1985) 2 SCC 54. 30. Vattickerukusu Village Panchayat v. Nori Venkatarama Deekshithulu (1991) 2 SCC Supp 288. 31. State of Tamil Nadu v. Ramalinga Wannigal Madam AIR 1986 SC 794, (1985) 4 SCC 10. 32. Srikant Kashinath Jihuri and ors v. Corpn of the City of Belgaum AIR 1995 SC 288, (1994) 6 SCC 572. 33. Suraj Narain v. Jamil Ahmed (1945) ILR 25 Pat 7; Srimath Jaganatha v. Kutumbarayudu (1916) ILR 39

Mad 21. 34. Carona Ltd v. M/S Parvathy AIR 2008 SC 187, (2007) 8 SCC 559.

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ascertain this point of law and very erroneously passed the impugned judgment

which is liable to be set aside for ends of justice.

8.0. Different from 17 BLC 2012 HCD 653

The case reported in 17 BLC 2012 HCD 653 (Al-Amin Bread & Biscuit Ltd vs

Bangladesh Bank) mainly highlighted three basic points which can be summarized

as follows –

(i) No declaration from Court is necessary for sending the name of the

defaulter in the CIB Report,

(ii) Whether Bank’s statement is correct or not cannot be decided in writ

jurisdiction,

(iii) Its not necessary to issue show-cause notice before sending the name in

the CIB Report.

The aforesaid case does not apply to the present case because the former is a writ

petition while the present is a civil suit. Moreso, the former does not create any bar

upon filing civil suit by any person whose name is reported/published in the CIB

Report. The former is in no way connected to civil suit. In short, there is no nexus

between the earlier decision and the present suit.

9.0. Gist of the submissions

➢ Rejection of plaint suo moto by the Court at the very initial stage, i.e. before

issuing of summons is unheard of in our legal arena.

➢ If institution of suit is done properly under Order IV of the Code of Civil

Procedure- 1908, the Court should issue summons upon the defendants under

Order V of that Code.

➢ Maintainability of the suit cannot be adjudicated under Order VII Rule 11 of the

Code. Because, Order VII Rule 11 has specified the provisions for which a

plaint can be rejected.

➢ If we writ provisions of Order XIV Rule 2, Order XV Rule 3 and Order XX

Rule 5 of the Code of Civil Procedure- 1908, it is clear that a preliminary issue

regarding law can be framed and adjudicated by the Court before adjudication of

other issues; but judgment should be delivered disposing of all issues together

and no suit can be adjudicated by piecemeal.

➢ Even a suit is barred by law, it does not prevent the Civil Court for examining

the acts/omission done by the defendants; because, each and every act is

examinable under judicial scrutiny.