Sunday, March 24, 2019 | ePaper

Order should follow the subsequent enforcement of law

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High Court Division :
(Civil Revisional Jurisdiction)
Md Moinul Islam
Chowdhury J
Abu Siddique (Md)…………..Petitioner
Vs
DM Habibur Rahman and others…………Opposite-Parties
Judgment
February 5th, 2018
Muslim Marriages and Divorce
(Registration) Rules, 2009
Rule 13
A person cannot be a Nikah Registrar for more than one union parishad but the petitioner has been a Nika Register for two unions which is not permissible under the new law. The settled principle in this regard is that everyone must be abide by the law introduced for any purpose and the petitioner cannot get any benefit which the prevailing law does not permit.  …….(12)
Code of Civil Procedure (V of 1908)
Order VII, rule 11(d)
A suit cannot be allowed to continue if the suit is barred by any law under the provision of Order VII, rule l1(d) of the Code. The suit is barred by law as the plaintiff claimed a relief in  the year of 2013 for injunction and for allowing him to function as Nikah Registrar in contravention to the provision of law, as such, I consider that the suit should not be allowed to continue any further as it is barred by law. .......(12)
Sheikh Muhammed Serajul lslam.  Advocate-For the Petitioner.
Mahfujur Rahman Roman with M Nahiyan Ibn Subhan, Advocates-For the Opposite-Party No.1
Judgment
At the instance of the present plaintiff opposite party-petitioner, Md Abu Siddique, a leave was granted and this Rule has been issued calling upon the opposite party No. 1 to show cause as to why the judgment and order dated 28-10-2015 passed by the learned Additional District Judge, Shariatpur, in Civil Revision No. 13 of 2014 allowing the aforesaid revision and thereby reversing the judgment and order dated 30-4-2014 passed by learned Assistant Judge, Jajira, Shariatpur in Title Suit No. 128 of 2013 rejecting the application under Order VII, rule 11 (d) of the Code of Civil Procedure, should not be set aside.
2. The relevant facts for disposal of this Rule, inter-alia, are that the present petitioner as the plaintiff filed the Title Suit No. 128 of 2013 in the Court of learned Assistant Judge, Jajira, Shariatpur for a decree for permanent injunction to restrain the opposite party from appointing a Nika Registrar and also for a iteration to allow him to continue as a Nika Registrar of Palerchar Union, Police Station-Jajira, Shariatpur. The plaint contains that the present plaintiff petitioner was appointed as a Nika Registrar for the Unions of Bilashpur, Kundarchar and Palerchar by the Ministry of Law and Parliamentary Affairs of the People Republic of Bangladesh on 18-8-1998, which was confirmed by the District Nika Registrar, Shariatpur on 2-9-1998. While has been performing his duties Kunderchar Union went under river Padma by way of river erosion and the peoples of the said union moved away. The petitioner thereafter filed Writ Petition No. 4545 of 2003 in this court where a direction was given to issue permanent license for two unions namely Bilashpur and Palerchar. On 31-1-2013 a letter was issued by the defendant No.6, Senior Assistant Secretary, Ministry of Law directing the sub-registrar of Jajira to appoint the defendant No.7, the present opposite party NO.1 as the Nika Registrar for the Union of Palerchar as per the provisions of law published by a Gazette notification dated 10-8-2009. The plaintrff filed the suit challenging the said appointment.
3. The suit has been contested by the present opposite party No. I. DM Habibur Rahman as the defendant No.7 by filing a written statement and denying the statement made in the plaint and contending that the defendants (the authority) properly appointed Nika Registrar to the present opposite Party No.1 for the Union of Palerchar under the provisions of law. The present opposite party No. 1 also filed an application under Order VII, rule II of the Code of Civil Procedure for rejecting the plaint as the suit was barred by law.
4. After hearing the parties the learned trial court rejected the application by, his order dated 30-4-2014. Being aggrieved the present opposite party No.1, as the applicant filed the Civil Revision No. 13 of 20 14 in the court of learned District Judge, which was heard by the learned Additional District Judge, Shariatpur on transfer who by his judgment and order dated 28-10-2015 allowed the revision by setting aside the order passed by the learned trial court. This revisional application has been filed under section 115(4) of the Code of Civil Procedure challenging the legality of the said order and a leave was granted and this Rule was issued thereupon.
5. Mr Sheikh Muhammed Serajul lslam, the learned Advocate, appearing for the petitioner submits that it is clear from the plaint that the suit is not barred by any law but the court below failed to evaluate the same, thus, committed an error of law resulting in an error in the decision occasioning failure of justice.
6. The learned Advocate also submits that the present petitioner filed the Writ Petition No. 4545 of 2003 which was partly made absolute directing to appoint the petitioner in two union parishads under Police Station Jajira but the appointment of the present opposite party No. 1 by the Ministry of Law and Parliamentary Affairs has been violation of the direction given by this court and the suit should be allowed. to dispose of on merit instead of by rejecting the plaint, therefore, the learned trial court after considering the pleadings rejected the application but the learned revisional court below committed an error
of law by allowing the application filed under Order VII, rule II of the Code of Civil Procedure, as such, this court should interfere for the ends of justice and the Rule should be made absolute.
7. The Rule has been opposed by the present opposite party No. I.
8. Mr Mahfujur Rahman Roman, the learned Advocate, appearing along with the learned Advocate Mr M Nahiyan Ibn Subhan, appearing for the opposite party No.1, submits that the learned trial court rejected the application filed by the present opposite party under Order VII, rule II of the Code of Civil Procedure on the basis of the direction of writ petition which was passed in the year of 2005 but without considering the subsequent enforcement of law in the year of 2009, therefore, came to a wrongful conclusion. However, the learned revisional court below after considering the prevailing law came to a lawful conclusion to allow the revision by setting aside the judgment and order passed by the learned trial court below, as such, this court should not interfere upon the judgment and order passed by the revisional court below and the Rule should be discharged.
9. The learned Advocate also submits that the present petitioner was appointed by the concerned authority in the year of 1998 for three unions but after the enforcement of Rule 13 (Umo) of  Ã’gymwjg weevn I ZvjvK (wbeÃœb) wewagvjv, 2009Ó a person cannot be a Nika Registrar in more than one union parishad therefore the judgment and order in the writ petition in the year of 2005 became inoperative by the subsequent introduction of new law in the year of 2009 thus the Rule should be discharged.
10. Considering the above submissions made by the learned Advocates appearing for the respective parties and also considering the revisional application filed under Section 115(4) of the Code of Civil Procedure, in particular, the impugned judgment and order passed by the revisional court below, it appears to me, that the present petitioner as the plaintiff filed a suit for permanent injunction restraining the Government opposite parties from appointing the present opposite party No. 1 and also for a declaration permitting the present petitioner to continue functioning as the Nika Registrar for two unions namely Bilashpur and Palerchar under Police Station Jajira, District-Shariatpur. The present opposite party No. I, DM Habibur Rahman contested the suit by filing a written statement and also by filing an application under Order VII, rule 11 of the Cod of Civil Procedure contending that  the suit was barred by the law.
11. In the above given factual aspects in this case, this court has to take a decision as to whether the suit filed by the present petitioner was actually barred by law or not. In order to take a decision in this matter I have carefully examined the available documents in the revisional application. I found that the suit was filed by the present petitioner claiming injunction and also seeking a relief to continue function as Nika Registrar for two unions namely Bilashpur and Palerchar as per his appointment in the year of 1998. In this regard, this court seemed to have directed to give a permanent appointment to the petitioner in the said two unions, however, the court has also given liberty to the concern authority to appoint as per the provision of law. While the petitioner has been performing his function as Nika Registrar the law changed by introducing “মুসলিম বিবাহ ও তালাক (নিবন্ধন) বিধিমালা, ২০০৯”
 and it was introduced under the authority given under Section 14 of the Muslim Marriages and divorces (Registration) Act, 1974 (Act No. LII of 1974). The said Bidhimala contains Rule 13, which reads as follows:
“১৩। অধিক্ষেত্র। -- এই বিধিমালার অধীন প্রদত্ত নিকাহ রেজিষ্ট্রারের লাইসেন্স যাহা কিছুই থাকুক না কেন, একজন নিকাহ রেজিস্ট্রারকে নিম্নবর্ণিত এলাকার জন্য লাইসেন্স প্রদান করা যাইবে, যথাঃ-
(ক) সিটি কর্পোরেশনের ক্ষেত্রে, একটি ওয়ার্ড,
(খ) ‘ক’ শ্রেণীর পৌরসভার ক্ষেত্রে দুইটি ওয়ার্ড,
(গ) ‘খ’ শ্রেণীর পৌরসভার ক্ষেত্রে, তিনটি ওয়ার্ড,
(ঘ) ‘গ’ শ্রেণীর পৌরসভার ক্ষেত্রে, সমগ্র এলাকা ;
(ঙ) ইউনিয়ন পরিষদ এলাকার ক্ষেত্রে একটি ইউনিয়ন।”
12. From the above provisions of law for Nika Registrar, a person cannot be a Nika Registrar for more than one union parishad but the present petitioner has been a Nika Register for two unions which is not permissible under the above new law. The settled principle in this regard is that everyone must abide by the law introduced for any purpose and the present petitioner cannot get any benefit which the prevailing law does not permit. Accordingly, the petitioner lost his relief given by this court in the Writ Petition by the introduction of subsequent law in the year of 2009. A suit cannot be allowed to continue if the suit is barred by any law under the provision of Order VII, rule 11 (d) of the Code of Civil Procedure. In the present case therefore the suit is barred by law as the present plaintiff petitioner claimed a relief in the year of 2013 for injunction and for allowing him to function as Nika Registrar of Palerchar in contravention to the provision of law, as such, I consider that the suit should not be allowed to continue any further as it is barred by law.
13. The learned trial court came to a wrongful conclusion only on the directions given by this court in a Writ Petition in the year of 2005 and the learned trial court failed to consider the prevailing law applicable in the suit therefore committed an error of law, however, the learned revisional court considered the relevant facts in this case and the applicable law, therefore, came to a lawful conclusion to allow the revisional application by setting aside the judgment and order of the trial court. I am therefore not inclined to interfere into the judgment and order passed by the learned revisional courts below.
14. Accordingly, I do not find merit in the Rule.
15. In the result, the Rule is discharged.
16. In view of the above discussion the present opposite party No. 1, DM Habibur Rahman, son of DM Abu Sayeed shall function as the Nika Registrar of the Palerchar union parishad, under Police Station-Jajira, District Shariatpur as per the appointment given on 31-1-2013 by the Senior Assistant Secretary, Ministry of Law by the present opposite party No.6.
17. However it appears to this court that the union parishad of Bilashpur has been seriously effected by river erosion wherein the present petitioner, Md Abu Siddique, son of late Md A Karim lost enough opportunities of his function as Nika Registrar therefore the present opposite party Nos. 5, 6 and 7 may consider his area to function in an adjacent union in the event of any vacancy in future because of the' fact of erosion most of the areas of Bilashpur union parishad.
18. The interim order of stay granted at the time of issuance of the Rule upon the operation of the judgment and order dated 28-10-2015 passed by the learned Additional District Judge,  Shariatpur in Civil Revision No. 13 of 2014 is hereby recalled and vacated.  The section is directed to communicate this judgment and order to the court concerned immediately.

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