Azizul Hakim,

son of late Abdul Hakim

…………..Plaintiff-Petitioner

VERSUS

1. Ziaul Ahsan
son of Moinul Ahsan
of House No.45, Road No.3,
Azimpur, Police Station-Lalbag
Dhaka
…..Principal- Defendant-Opposite Party

2. Sub-Registrar,
Mohammadpur Sub-Registry Office
Registration Complex, Tejgaon
Police Station- Tejgaon. Dhaka

SHEWETH:

1. That the Plaintiff filed the instant suit praying for declaration and
recovery of possession of the scheduled properties.

2. That in the said suit, the Plaintiff made the following assertions:

Admitted Fact:
I. That the suit properties described in the schedule below (the suit properties)
originally belonged to one Narendranath Majumdar, and his name was rightly
recorded in the C.S Khatian.

II. After the death of Narendranath Majumdar, his sole heir Khagendra Majumdar
became the owner of the property.

III. After that, Khagendra sold the suit properties to Mr. Abdul Hakim, the father of the
Plaintiff. Upon purchasing the suit properties his name was duly recorded in the S.A
record of rights and he had also been paying rents in respect of the suit land.

Disputed Facts:
 IV. After the death Mr. Abdul Hakim and Mrs. Selina the Plaintiff became the sole owner
and possessor of the suit properties.

V. Becoming the owners and possessors of the suit properties, the Plaintiff mutated his
name in respect of the suit properties by Mutation Case No. 453/2015--2016 with
Dhanmondi Circle. The Plaintiff also mutated his name with the Dhaka City
Corporation. He also transferred and has been paying the electricity, gas and other
utility services in his name.

VI. Since the Plaintiff was busy with his business, on December 2017, he appointed a
caretaker, defendant no 1, to look after the scheduled properties.

VII. Defendant No.1 was previously known to the Plaintiff since he was son of a distant
relative of the Plaintiff, and the Plaintiff’s father used to provide financial supports
according to his own means.

VIII. In the beginning of 2019, the Plaintiff left Bangladesh for a long time and went to

New Zealand for business purpose. As a result, the Plaintiff entrusted all his
documents relating to the suit properties to the Defendant No.1, and gave him
instructions for looking after the properties in his absence. He also settled that a
monthly salary to the Defendant No.1, in exchange of which, he would take care of
all the affairs of the scheduled properties on behalf of the Plaintiff and should keep
the Plaintiff informed.

IX. Having settled such arrangement, the Plaintiff left for New Zealand on 24 th February
2019. While in New Zealand, he maintained regular contact
 with the Defendant No.1. However, from the mid 2019, the Plaintiff lost all contacts
with the Defendant No.1. The posts sent to him remained unanswered, the telephone
calls made to him failed to reach him. These circumstances raised an alarm inside the
Plaintiff who eventually decided to pay a short visit to Bangladesh to find out for himself
what went wrong.

X. That on 21st March January 2020, the Plaintiff came to Bangladesh and went to the
scheduled properties. After reaching, the Plaintiff found that, on the main entrance
of the building, a sign board was hanging containing the name of the Defendant No.1
as the owner of the properties.

XI. My client asked for an explanation and the Defendant No.1 told that he had
purchased the land in December 2009 from the father of my client, late Mr. Abdul
Hakim. However, Abdul Hakim requested him not to disclose the fact of sale to
anyone.

XII. After hearing that, my client made a search in the office of the Sub Registry, and
found that a deed was registered on 29 th December 2009 showing that the father of
the Plaintiff had sold the scheduled properties in favour of the Defendant.

XIII. But the true act is the father of my client had never sold any part of the scheduled
property to the Defendant No.1 or any other person. The Defendant No.1 in order to
grab the scheduled properties fraudulently created the said deed which does not
have any validity at all.
XIV. That 13th July 2020, my client through his learned advocate sent a legal notice
through registered post with AD to the Defendant No.1 asking him to hand over the
possession of the suit property within 15(fifteen) days from the receipt of the notice.
The Defendant No.1 receipt the legal notice and he has not handed over to the
Plaintiff the suit property within 15 days. Thus, my client has no other alternative
but to file the instant suit for declaration and recovery of possession.
YH, at this point of the case, my client filed this application for injunction under order 39,
rule 1 and 2 as the Defendant-Opposite Party No.1 is now trying to dig earth of the
scheduled properties with a view to making a pond on it.
YH, rule 1 of order 39 states that, if any property in dispute in a suit is in danger of being damaged by any party to
the suit, the Court may by order grant a temporary injunction to restrain such act.
YH, Appellate Division in in the case Bangladesh Sericulture Board vs Fazlur Rahman, reported in 41
DLR page 25, upheld that, 3 conditions have to be proved to satisfy the court for granting injunction. Such
as,
Prima facie case
Irreparable loss
Balance of inconvenience.
1. Prima facie case: YH, there is a strong prima-facie-arguable case in
favour of the Plaintiff-Petitioner in that there is a serious question of
law to be tried and the issue raised need further investigation. It is
observed in the case IDBP vs Master Industries, 26 DLR 157 and Abul
Kashem vs Kartik Chandra, 7 BLC 452. YH, the property is a disputed
property and subject matter of a suit and this issue needs further
investigation. Along with this, damaging such a property raise a
serious question of law.

2. Irreparable loss: YH, in the case between Sarhind Garments and

Glory Truth Industries, reported in 49 DLR page 260, it is observed
that, the appellant must show that he suffers irreparable loss or
injury which cannot be compensated by money unless the other
party is restrained. The digging pond in the schedule property will
cause serious irreparable loss as it will severely reduce the price of
the scheduled property and will change nature and character of the
same. However, YH, this loss cannot be compensated by money since
the lot of personal memories of the Plaintiff-Petitioner are attached
with this property which would be permanently destroyed.

3. Balance of and inconvenience: YH, in the case of Uttara Bank vs

Macneil & Kilburn Ltd reported in 33 DLR p. 298, the Appellate
Division observed that, balance of inconvenience is one of the most
important prerequisites of granting injunction and it has to be in
favour of the appellant. In the case of, Dalpat vs Prahlad reported in
AIR 1993 SC 279, the supreme court of India states that, balance of
inconvenience means, mischief or hardship which may cause to the
appellant by refusing the injunction is greater than the mischief
caused to the opponent party if the injunction is granted. YH, in the
present case balance of inconvenience lies in favour of the Plaintiff-
Petitioner as if the pond is dug, the value of the properties will be
severely reduced. On the other hand, if the pond is not dug no one
will suffer any loss.
 Wherefore it is most humbly prayed
that your Honour would be pleased
to issue a notice calling upon the
Defendant-Opposite Party No.1 to
show cause as to why he should not
be restrained by an order of
temporary injunction from changing
the nature and character of the
scheduled property unless the instant
suit is finally disposed of, and upon
hearing the parties, and upon
perusing the cause shown, if any,
pass an order of temporary
injunction.

And

Pending hearing of the injunction

petition, your honour would further
be pleased to pass an order of ad
interim injunction restraining the
Defendant-Opposite Party from
changing the nature and character of
the schedule properties

SCHEDULE

All that piece and parcel of land situated under District- Dhaka, Police
Station- Lalbagh, Mouja –Hajaribagh, C.S Khatain No. 343, C.S Plot No. 455,
S.A. Khatian No. 233, S.A Plot No. 456, R. S Khatian No. 1098, R.S Plot No.
654, Municipal holding No. House No. 45 Road No.3 . measuring an area of
12 katthas of land.

Butted and bounded by:

To the North House No. 44,

To the South House No. 46
To the West House No.34
To the East Road No. 3

AFFIDAVIT

I, Azizul Hakim, son of late Abdul Hakim, of House No.23, Road No.12,Dhanmondi,
Police Station- Dhanmondi, Dhaka-1215, by faith- Muslim, by nationality –
 Bangladeshi by birth, bearing National ID No. 665393321, aged about 35 years, do
hereby solemnly affirm and declare as follows:

1. That I am the Plaintiff in the instant suit and as such well versed with thei
facts and circumstances of the case and hence competent to swear this
affidavit.
2. That the statements made hereinabove are true to the best of my
knowledge and belief.

Deponent

The statements made hereinabove are

true to the best of my knowledge and
belief

Advocate

1. Bangladesh Sericulture Board vs Fazlur Rahman, reported in 41 DLR page 25, upheld that, 3
conditions have to be proved to satisfy the court for granting injunction.
2. In the case between Sarhind Garments and Glory Truth Industries, reported
in 49 DLR page 260, it is observed that, the appellant must show that he
suffers irreparable loss or injury which cannot be compensated by money
unless the other party is restrained.
3. in the case of Uttara Bank vs Macneil & Kilburn Ltd reported in 33 DLR p.
298, the Appellate Division observed that, balance of inconvenience is one
of the most important prerequisite of granting injunction and it has to be in
favour of the appellant.
4. Sec 53. Temporary injunctions are such as are to continue until a specified time, or until the
further order of the Court. They may be granted at any period of a suit, and are regulated by the
Code of Civil Procedure. SR Act 1887.