Md.

Mojibur Rahman Gazi

Vs
Abdul Latif Sardar & another

Case No: Civil Revision No. 1702 of 2012

Judge: Mohammad Ullah
Court: High Court Division
Advocate: Mr. Khijir Ahmed, Mr. Dider Alom(defendant-petitioner)
(None appears for the plaintiff-opposite party)
Citation: 4 LNJ (2015) 157
Case Year: 2015
Defendant: Md. Mojibur Rahman Gazi (Petitioner)
Plaintiff: Abdul Latif Sardar & another (Opposite Parties)
Subject: Specific Performance,
Judgement Date: 14.02.2013
Fact: There was a land of the defendant (Md. Mojibur Rahman Gazi) who proposed
to sell the same to the plaintiff (Abdul Latif Sardar) and the plaintiff agreed to
purchase the same at a consideration of Tk. 81,00,000 and the defendant No.1
received Tk. 10,00,000 as earnest money and a registered bainapatro dated
08.10.2009 was executed between them. It was stipulated that balance consideration
of Tk. 71,00,000 would be paid within 07.04.2010 and after receipt of the balance
consideration, the defendant would execute and register sale deed in favour of the
plaintiff. But the defendant took time on various pretexts and the plaintiff on
30.03.2010 approached the defendant to execute and register the sale deed but the
defendant No. 1 delayed the matter for going to perform Hajj and thereafter, the
plaintiff 3 on December, 2010 again approached the defendant to execute and
register the sale deed as per terms of the bainapatro. But the defendant denied to
execute the same, which constrained the plaintiff to file the suit for specific
performance of contract.

The plaintiff also filed an application for injunction under Order 39 Rule 1 and 2 of
the Code of Civil Procedure.

On 10.05.2012 the plaintiff filed an application under section 151 of the Code of
Civil Procedure to allow him to deposit the balance consideration of the bainapatro.

The learned Joint District Judge, Chandpur by his impugned order dated 10.05.2012
allowed the plaintiff to deposit the balance consideration.

But the defendant submits a petition on High Court under Order 7 Rule 11 (d) of the
Code of Civil Procedure praying for rejection of plaint stating inter alia that the
plaintiff failed to deposit the balance consideration money amounting to Tk.
71,00,000 at the time of filing of the suit and as such the plaint is liable to be rejected
because in violates the provision under section 21A of the Specific Relief Act.
Issue:
1.weather there was negligence of the defendant to receive the balance
consideration.

2.weather there was any registered bainapatro of that contract.

3.weather there was any decree of specific performance under any provisions of
specific relief Act.

4.The decision of the learned Joint District Judge, Chandpur was right or
wrong.
5.Weather there was any express provision in the CPC for the rejection of a suit.
Argument of the defendant: Mr. Khijir Ahmed, learned Advocate appearing
with Mr. Dider Alom on behalf of the defendant- petitioner submits that the very
specific provision of section 21A of the Specific Relief Act, provides that the balance
consideration is required to be deposited at the time of filing of the suit for specific
performance of contract and as such there is no scope for a purchaser to make deposit
of the balance consideration money beyond the statutory period of limitation.
Consequently, allowing the plaintiff to make deposit of balance consideration money
is liable to be set-aside as being barred under section 21A of the Specific Relief Act.
The learned Advocate for the defendant-petitioner lastly submits that the plaint is
liable to be rejected under Order VII Rule II(d) of the Code of Civil Procedure as
the plaintiff failed to make statutory deposit at the time of filing of the suit.

Argument of plaintiff: None appears for the plaintiff-opposite party No. 1

although notice has been served upon him.
Relevant case reference: In support of his submission the learned Advocate for
the petitioner placed reliance on the case of
1.Imran(Md) Vs Shamim Kamal and others reported in 60 DLR (2008) 597
2.Faquir Ashraf Vs Mrs. Bilkis Banu reported in 2 ALR (2012) 21

Relevant Sections:
1. Section 21A of the Specific Relief Act. (The Specific Relief Act, 1877
has been amended by adding section 21A by Act 27 of 2004)
2. Order 39 Rule 1 and 2 of the Code of Civil Procedure.
3. Section 151 of the Code of Civil Procedure.
Judgement: On a careful reading of section 21A of the Specific Relief Act it
appears that the provision for depositing the balance consideration money is a
condition precedent failing which it would not be possible to enforce the contract by
filing a suit. We find support of the above contention in the case of Imran (Md) Vs
Shamim Kamal and others reported in 60 DLR 597. Similar views were also
expressed in the case of Faquir Ashraf Vs Mrs. Bilkis Banu reported in 2 ALR
(2012) 21. In the above facts and circumstances of the case and the provision of law,
we find merit in the Rule. It is well settled that the rejection of plaint is not confined
to the provision of Order 7 Rule 11 of the Code of Civil Procedure. In an appropriate
case while the proceeding itself is barred or an abuse of the process of the court, the
court having recourse of section 151 will be competent to reject the plaint.