ASKAR ALI Vs. MD. SHAMSUDDIN
SUPREME COURT OF BANGLADESH
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(1.) This appeal, by leave, by the plaintiffs arises out an application under section 10 of the Code of Civil Procedure filed by the defendant respondents in Title Suit no. 131 of 1994 of the Court of Senior Assistant Judge, Keranigonj which was rejected by the trial Court but allowed in revision by a single Judge of the High Court Division by the impugned judgment and order dated 21 November, 1995.
(2.) Material facts of the case, briefly, are that on 24.7.94 appellant No. 1, Askar Ali as sole plaintiff instituted Title suit No. 151 of 1994 in the fourth Court of Subordinate Judge, Dhaka against a large number of defendants, 111 in number, including the respondents as Defendant Nos. 61 to 67, for a declaration that the appellant is the owner of "2.90 acres of land of schedule property" including plot No. 759 bearing an area of .35 arces in Mouza Madhyer Char and plot No. 132 bearing an area of .69 arces of Mouza Napladi, and that the S.A. Records were wrongly published. Sometime after filing of the said suit the plaintiff amended the plaint by omitting plot No. 759 from the plaint. Subsequently on 16.10.94, the said Askar Ali, appellant No. 1 together with his son, appellant No. 2, Jointly brought a suit being Title suit No. 131 of 1994 in the Court of Senior Assistant Judge, Keranigonj for permanent injunction against the present respondents as defendants so as to prevent the said defendants from creating any obstacle in the possession of the plaintiffs in the aforesaid plot No. 759 comprising an area of 27 decimals and Plot No. 132 comprising an are of 36 decimals alleging title and possession therein. Whiled both the suits have been in progress, the respondents filed an application on 25.5.1995 under section 10 CPC before the learned Senior Assistant Judge, Keranigonj for stay of the suit i.e. title suit No. 131 of 1994 pending disposal of the previous suit i.e. Title suit No. 151 of 1994 of the Fourth Court of Subordinate Judge, Dhaka on the ground that the matter in issue in the two suits is directly and substantially the same. The learned Assistant judge by his order dated 30.5.95 rejected the application holding that the material issue in the two suits is not directly and substantially the same.
(3.) Being aggrieved by the said order the respondents took a revision No. 2889 of 1995, and as already noticed, became successful. The learned Judge of the High Court Division allowed the application upon the view that "at least two suit plots in the above two suits are the same and in two courts proceeding are pending and to avoid conflict of judgments and to avoid possibility of multiplicity of proceedings, the subsequent suit should be stayed."
Leave granted to consider whether the purport of section 10 CPC was correctly appreciated by the learned Judge. That section provides:
10. No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigation under the same title where such suit is pending in the same or any other court in Bangladesh having jurisdiction to grant the relief claimed, or in any court beyond the limits of Bangladesh established or continued by the Government and having like jurisdiction, or before the Supreme Court.
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