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Civil Petition for Special Leave to Appeal No. 43‑D of 1970, decided on 23rd June 1970.
(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 18th November 1969, in Second Appeal No. 542 of 1964).
O. XLI, r. 25‑Remand Trial Court disposing of issue whether a particular party was necessary party by just saying it was not, and neither considering relevant decisions on point nor giving other cogent reason‑First Appellate Court even snot touching point‑Remand order passed by High Court, in circumstances, held, neither illegal nor without jurisdiction.
Province of East Pakistan v. The Secretary, Muktagacha Abbasia Senior Madrassa P L D 1964 S C 401 and Aminbag Co operative Market Society Ltd. v. The Province of East Pakistan P L D 1967 Dacca 128 ref.
Shafiqur Rahman, Advocate Supreme Court instructed by Abu Backkar, Advocate‑ on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : 23rd June 1970.
‑This is a petition for special leave to appeal to challenge the propriety of an order of remand passed by a learned Single Judge of the High Court of East Pakistan in a second appeal.
The said second appeal arose in the following circumstances :‑
The petitioner instituted a suit against the respondents for recovery of arrears of house rent on the ground that the latter were his monthly tenants on the basis of an agreement in writing for a period of one year and 8 months from 1st of Falgun, 1358 B. S. at a monthly rental of Rs. 26. The arrears claimed were for the period Sraban, 1365 B. S. to Sraban, 1368 B. S.
The defendants admitted the agreement but alleged that the rent was only Rs. 12 per month and further that the tenancy was frustrated as the hut was destroyed by fire within the period of the lease. Thereafter, the petitioner did not re‑erect the hut in spite of demands. The respondents erected a chappra at their own expense and have been carrying on their business therein for 7/8 years.
In paragraph 7 of the written statement it was furthermore, pleaded that since the suit land appertained to a Gandi Mohal, the Government of East Pakistan had acquired that interest under the East Bengal State Acquisition and Tenancy Act, 1950, and so the title of the petitioner in the suit lands had ceased to exist. The defendants claimed that they had since been recorded as tenants under the Government and were paying rents to the Government. They also pleaded that the suit was barred by time and was not maintainable.
On these pleadings one of the issues raised was as to whether the Province of East Pakistan was a necessary party to the suit. The trial Court held that the Government was not a necessary party and decreed the suit. On appeal, this decision was upheld by a learned Subordinate Judge of Noakhali by a rather unsatis factory judgment. The appellate Court did not at all consider the question as to whether the Government of East Pakistan was a necessary party or not. In the circumstances, the High Court, in second appeal, took the view that the lower Courts had failed to consider an important question which appeared to be covered by a decision of this Court in the case of the Province of East Pakistan v. The Secretary, Muktagacha Abbasia Senior Madrassa (P L D 1964 S C 401).
The High Court also felt that the question as to whether the petitioner was a rent‑receiver or not within the meaning of section 2(23) of the Act of 1950, needed consideration in view of the decision of the High Court itself in the case of Aminbag Co‑operative Market Society Ltd. v. The Province of East Pakistan (P L D 1967 Dacca 128).
In this view of the matter, the High Court set aside the decree of the Courts below and remanded the case to the trial Court for retrial and disposal in the light of its observations after adding the Government of East Pakistan as a party‑defendant in the suit.
The petitioner now seeks special leave to appeal and it is contended on its behalf that since this point was considered and decided by the trial Court, the remand was wholly unnecessary.
It appears that the trial Court disposed of the issue relating to the question as to whether the Province of East Pakistan was a necessary party by just saying that it was not. None of the decisions referred to above were considered nor was any other cogent reason given. The appellate Court did not even touch this point. In the circumstances, we are unable to agree that the remand order was either illegal or without jurisdiction, as this issue necessarily involved the taking of further evidence which normally the High Court does not do at the second appeal stage.
This petition is, ‑accordingly, without any substance and is dismissed.
Petition dismissed.
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