Decided on February 07,1989

Mahfuzus Sobhan Respondents


BADRUL HAIDER CHOWDHURY,J. - (1.) This is an unfortunate case. How we wish such case had never come before the Court. It was a transferred suit being Transferred Suit No.1 of 1980. Suit was filed originally in the Court of Munsif, Noakhali being Other Class Suit No. 337 of 1978. It was filed on 2.6.1979 against the Deputy Commissioner and Additional Deputy Commissioner (Development) for a decree of mandatory injunction directing Respondent No. 1 Additional Deputy Commissioner (Revenue) to vacate the suit premises for accommodation of the plaintiff-appellant, who is a judicial officer.
(2.) The plaintiffs case was that the suit premises was the official residence of the District Judge, Noakhali since the British regime and it was made over to the then Department of Law of the Government of Bengal. After partition it was the official residence of the District Judge. However, later on official residence of the District Judge was constructed at Maijdi and the then District Judge, Mr. S. Rahman, accordingly shifted to the new residence at Maijdi. The trouble started from here. The then Additional Deputy Commissioner Mr. Pervez Mazumder entered into the suit premises allegedly without the consent of the District Judge or the Law Department and even without any allotment from the District Accommodation Board. At about this time in April, 1979 Mr. Pervez Mazumder was transferred. The District Judge informed the Deputy Commissioner that the plaintiff should be accommodated in the vacant premises and it was pointed out by the District Judge that another quarter was lying vacant which could be allotted to the successor of Mr. Majumder and suggested "the suit premises be returned to his Judgeship for accommodation of the petitioner. "The District Judge informed the Law Ministry and it appears, the Law Department by its Memo dated 18.5.79, requested the Deputy Commissioner to return the premises to the possession of the District Judge "to solve the problem of the accommodation of the judicial officer." It seems meanwhile defendant No. 1 had entered into the suit premises on verbal permission from the Deputy Commissioner. The bone of contention was that such permission by Deputy Commissioner was illegal and without jurisdiction. Issues were framed by the learned Munsif and it was set down for peremptory hearing. In April, 1979 defendant No. 1 moved the High Court Division under section 24 of the Code of Civil Procedure being Civil Revision Case No. 1020 of 1979 praying that the suit be withdrawn by the High Court Division and upon hearing the parties the prayer was allowed and it was registered as Transferred Suit No. 1 of 1980.
(3.) The matter was heard by A.T.M. Afzal, J. It was noticed that in the suit as framed the only relief of mandatory injunction was sought against defendant No. 1 and no relief had been prayed for as against the Deputy Commissioner proforma defendant.;

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