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Present:
MR. JUSTICE S.M. EMDADUL HOQUE

CIVIL REVISION NO. 5852 OF 2022.

IN THE MATTER OF:
An application under Section 115 (4) of the Code of
Civil Procedure.

- AND -
IN THE MATTER OF:
Asma Rahman alias Asma Akhter.
….Defendant-Petitioner.
-Versus –
Most. Rabeya Akhter and others.
..….opposite-parties.
Mr. Prabir Halder, Advocate
..... for the petitioner.
Mr. Mohammad Isharat Hossain, Advocate
..... for the opposite parties.

Heard and Judgment on: 04.02.2024.

The defendant-petitioner filed this revisional application under

Section 115(4) of the Code of Civil Procedure challenging the impugned

judgment and order dated 18.10.2022 passed by the Senior District Judge,

Dhaka rejecting the Civil Revision No.160 of 2022 and thereby affirming

the judgment and order dated 06.06.2022 passed by the Senior Assistant

Judge, 6th Court, Dhaka in Title Suit No.751 of 2021 accordingly the leave

was granted and consequently the Rule was issued.

Facts necessary for disposal of the Rule, in short, is that the

opposite party No.1 as plaintiff instituted Title Suit No.751 of 2021

impleading the petitioner and the opposite party Nos.2-4 as defendants

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praying for decree that she along with the defendant Nos.3-4 are the legal

heirs and are entitle to get decree of the schedule amounts of

Tk.16,89,918/- and for further direction not to disburse the said amounts

to the defendant No.1 since she has claimed the nominee of the deceased

account holder.

The defendant No.1 the present petitioner appeared in the suit by

filing written statement denying all the material assertions made in the

plaint and claimed that she is the nominee of the deceased Mustafizur

Rahman and is entitled to withdraw the schedule amounts and the suit is

not maintainable in its present form and liable to be dismissed.

The defendant petitioner thereafter filed an application for

rejection of the plaint under Order VII rule 11 of the Code of Civil

Procedure claiming that as per Section 103(1) of the Banking Companies

Act, 1991 the nominee is entitled to withdraw the money of the deceased

depositor and as such the plaint should be rejected.

The trial Court after hearing the parties, considering the facts and

circumstance of the case rejected the said application by its judgment and

order dated 06.06.2022.

Against the said order the defendant petitioner filed Civil Revision

No.160 of 2022 under Section 115 (2) of the Code of Civil Procedure

before the learned District Judge, Dhaka, who after hearing the parties

and considering the facts and circumstance of the case summarily rejected

the revisional application by its judgment and order dated 18.10.2022.

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Being aggrieved by and dissatisfied with the impugned judgment of

the Courts below the defendant No.1 as petitioner filed this revisional

application under Section 115(4) of the Code of Civil Procedure and

accordingly leave was granted and consequently Rule was issued.

Mr. Mohammad Isharat Hossain, the learned Advocate enter

appeared on behalf of the opposite party No.1 through vokalatnama to

oppose the Rule.

Mr. Prabir Halder, the learned Advocate submits that the petitioner

is the nominee of the deceased Mustafizur Rahman for the schedule

amounts. He further submits that as per provision of Section 103(1) of the

Banking Companies Act, 1991 the petitioner is entitled to withdraw the

entire amounts and the said matter has already been decided in the case

of Ziauddin Ahmed and others Vs. Arab Bangladesh Bank and others

reported in 6 MLR (AD)-188 and the decisions reported in 52 DLR (HCD)-

36. He further submits that the suit is not maintainable since after the

death of the deceased Mustafizur Rahman the plaintiffs and the

defendant Nos.2-4 ought to have filed successions case but without filing

the succession case they filed the declaratory suit which is not

maintainable in law. He further submits that both the Court did not

consider the aforesaid provision of law passed the impugned judgment.

He prayed for making the Rule absolute.

On the contrary, Mr. Mohammad Isharat Hossain, the learned

Advocate submits that the plaintiff and the defendant Nos.2-4 are the
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legal heirs of deceased Mustafizur Rahman and after the death of

deceased Mustafizur Rahman the wife and the brother and sisters became

the legal heirs. He submits that the plaintiff filed the suit claiming that

they are the legal heirs of deceased Mustafizur Rahman but the defendant

No.1 has claimed she is the nominee of deceased Mustafizur Rahman and

accordingly the plaintiffs filed the suit with a prayer for title of the

schedule amounts and also prayed for a direction not to disburse the said

amounts in favour of the defendant No.1.

He submits that there is no bar to file suit and suit is quite

maintainable. He submits that both the Court rightly passed the impugned

judgment and did not commit any error of law resulting in an error in the

decisions occasioning failure of justice. He prays for discharging the Rule.

I have heard the learned Advocate of both the sides, perused the

impugned judgment of the Courts below, the provision of law and the

papers and documents as available on the record.

The plaintiffs filed the suit claiming that she and defendant Nos.2-4

are the legal heirs of deceased Mustafizur Rahman who was the account

holder of the schedule accounts. It appears that the plaintiff without filed

the succession case filed this suit claiming for their title and a direction not

to disburse the said amount to the defendant No.1 who has claimed the

nominee of deceased Mustafizur Rahman the husband of the plaintiff.

The defendant No.1 entered appeared and filed written statement.

Thereafter, filed application for rejection of the plaint under Order VII rule
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II of the Code of Civil Procedure claiming that suit is not maintainable and

plaint should be rejected. The trial Court rejected the said application and

the revisional Court also upheld the order of the trial Court.

The petitioner only challenging the judgment and order rejecting

the application for rejection of the plaint under Order VII rule 11 of the

Code of Civil Procedure. The Order VII rule II of the Code of Civil Procedure

as under:

(a) where it does not disclose a cause of action:

(b) where the relief claimed is undervalued, and the plaintiff, on

being required by the Court to correct the valuation within a

time to be fixed by the Court fails to do so:

(c) where the relief claimed is properly valued, but the plaint is

written upon paper insufficiently stamped, and the plaintiff,

on being required by the Court to supply the requisite stamp-

paper within a time to be fixed by the Court, fails to do so:

(d) where the suit appears from the statement in the plaint to be

barred by any law.

The main provision states that the plaint should be rejected where

it shall does not disclose a cause of auction, furthermore, where the

appellants from the statement in the plaint to be barred by any law and

some other reasons. Defendant Nos.2-4 are the brother and sisters of

deceased Mustafizur Rahman and they are the legal heirs of deceased

Mustafizur Rahman who maintained the schedule accounts wherein the

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scheduled amounts is available. Admittedly the defendant No.1 is not the

heir of deceased Mustafizur Rahman she is the sister of the deceased wife

of Mustafizur Rahman but she is the nominee of him.

It appears that the Courts below took view that none of the

provision of Order VII rule 11 has been stated in the application for

rejection of the plaint and also opined that all the matter should be

considered by taking evidence.

It is now settled principle that the matter whether the suit is

maintainable or not and the other facts should be considered by the trial

Court by taking evidence. And if it is found that the suit is not

maintainable as per law then Court by framing proper issue may rejected

the plaint.

It appears that the plaintiff is the wife of deceased Mustafizur

Rahman and D.W-2-4 are the brother and sisters of said Mustafizur

Rahman and before his death he deposited the schedule amounts to the

Bank but he appointed the defendant No.1 as nominee and defendant

No.1claimed that she is only the authority to withdraw the amounts the

said matter is not a ground for rejection of plaint rather the same issue

should be disposed of by the trial Court by framing proper issue.

The suit filed by the legal heirs of the deceased Mustafizur Rahman

and in such a case whether the plaintiff filed suit in a wrong forum and the

provision of Section 103(1) of the Banking Companies Act, 1991 also

should be considered by the trial Court at the time of disposal of the suit.
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However, the Courts below after consideration of law and facts of

the case rightly decided the matter rejecting the application for rejection

of the plaint under Order VII rule 11 of the Code of Civil Procedure filed by

the defendant No.1.

Having considered the facts and circumstance of the case, and the

discussions as made above. I find no merit in the Rule.

In the result, the Rule is discharged without any order as to cost.

The order of status-quo granted earlier by this Court is hereby

recalled and vacated.

Communicate the order at once.

Obayedur B.O