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Code of Civil Procedure

Abuse of the process of the Appellate Court should be prevented

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03rd-Aug-2019       
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High Court Division :
(Civil Revisional Jurisdiction)
Md. Rezaul Hasan J
Sarah Begum Kabori……….……………………Petitioner
             vs
Neela Hosna Ara and
another…............................……………Opposite-Parties
Judgment
December 4th, 2018
Code of Civil Procedure (V of 1908)
Section 151
The proceedings of the miscellaneous appeal is liable to be quashed in exercise of inherent power conferred by Section 151 of the Code, read with this court's constitutional power of supervision (both administrative and judicial) as conferred by Article 109 of the Constitution………….. (18)
Manzill Murshid with AH  Imrul Qausar Advocates-For the Petitioner.
Nazmul Huda with Ashanur Rahman with Mohammad Iqbal Akhonji Advocates-For the Opposite Party Nos. 1-2.
Judgment
Md Rezaul Hasan J : This Rule has been issued calling upon the Opposite Party Nos. 1 and 2, to show cause as to why the impugned judgment and order dated 12-3-2018, passed by the learned District Judge, Dhaka, in Miscellaneous Appeal No. 47 of 2018, staying the operation of the order dated 5-2-2018, passed by the learned 1st Joint District Judge, Dhaka in Title Suit No. 1027 of 2017, allowing the application under Order XXXIX, rules 1 and 2 read with Section 151 of the Code of Civil Procedure directing to maintain status-quo with regard to the activities pursuant to Trust Deed being No. 37 dated 16-7-2017, should not be set aside and/or pass such other order or orders as to this Court may seem fit and proper.
2. Facts relevant for disposal of the Rule, in short, are that the petitioner as plaintiff filed Title Suit No. 1027 of 2017 before the court of Joint District Judge, 1st Court, Dhaka, for cancellation of Trust Deed No. IV 37 dated 16-7-2017, which was registered before the Sub-Registrar, Gulshan, Dhaka, with the consequential relief prayed in the form of permanent injunction against the defendant Nos. 1-3 to restrain them from doing any acts pursuant to the said deed. The averments made in the plaint is that the schedule 2 property, being plot No. 15D at Road No. 93, Gulshan-2, Dhaka, was allotted to the plaintiff-petitioner, who gave the same to a developer company named, Advanced Development and Techno-logy Limited (the developer) for construction of a 6 (six) storied building on the said plot. After completion of the building, out of 6 (six) flats, the plaintiff got 2 (two) flats in her share and 4 (four) flats were sold by developer company. The defendant Nos. 1-3 are the purchasers of 3 (three) flats in the said apartment building. The impugned Trust Deed No. IV 37 dated 16-7-2017 has been created by 3 flat owners of the said apartment i.e. the defendants (excluding the plaintiff-petitioner, although she is the owner of two flats), with intent to run and manage the entire building including the power given to take loan, to borrow money and to create mortgage etc.
3. The plaintiff has also filed a petition for temporary injunction under Order XXXIX, rules 1 and 2 of the Code of Civil Procedure (the CPC). Against the said petition for temporary injunction, the defendants have filed written objection (while the defendants have also filed written statements in the said suit). However, the petition for temporary injunction was taken up for hearing and, by an order dated 5-2-2018 (Annexure-D), the trial court, after hearing both the parties and considering the materials on record had passed an order directing the parties to maintain status-quo in respect of the suit property, till disposal of the suit.
4. Against the said order of status-quo, the defendant Nos. 2 and 3 had preferred Miscellaneous Appeal No. 47 of 2018 before the court of District Judge, Dhaka, and the learned District Judge, Dhaka had admitted the appeal by order dated 12-3-2018 and, at the time of admitting the appeal by the same order he has also stayed operation of the trial court's order of status-quo dated 5-2-2018 till the next date (fixed in the said appeal).
5. Being aggrieved by and dissatisfied with the said order of stay dated 12-3-2018, passed by the District Judge, Dhaka, in Miscellaneous Appeal No. 47 of 2018, the plaintiff-petitioner has moved this petition before this Court, under Section 115(1) of the Code of Civil Procedure, and obtained the instant Rule.
6. Cases of the parties have been stated in their respective pleadings annexed to the petition for revision and I have gone through the same, which need not be reproduced here.
7. Learned Advocate Mr Manzill Murshid appeared for the petitioner. Having placed the petition and drawn my attention to the counter affidavit filed in reply to the affidavit-in-opposition of opposite party No. 1, the learned Advocate first of all submits that, admittedly the suit plot, described in schedule 1 of the plaint, was allotted to the plaintiff and the plaintiff has given the said plot to a developer named, Advanced Development and Techno-logy Limited for the purpose of constructing a 6 (six) storied building, out of which the plaintiff had got 2 (two) flats and the developer company sold 4 (four) flats. However, he also submits that, as the usual practice and usage followed by the flat owners of such Apartment Building, all the flat owners have jointly established an association in the name and style, "Casablanca Apartment Owners Society" to run and manage the affairs of the said residential building, vide Annexure H(4). The society was responsible to maintain the building, to look after and manage the common space and common facilities, to bear the common cost of maintenance, house-keeping, payment of salary of the staffs etc. But, he proceeds on, quite un-precedently, only 3 flat owners (who are defendant Nos. 1-3) has formed a trust on the basis of the questioned trust deed dated 16-7-2017, which has not been executed by all flat owners, including the plaintiff and they have thereby, conferred upon them the power and authority of other flat owners including the powers to take loan and mortgage etc.
(To be continued)

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