Suit Title: Mosharraf Hossain Mia vs. Mosammat Hasina Begum & others [43 DLR (1991) 254]
Judges: Abdul Bari Sarker & Abdul Hasib.
Date of Judgment: May13, 1990
Under Section: 94 of the Code of Civil Procedure, 1908
Supplemental proceedings: In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,-
(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;
(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;
(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;
(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;
(e) make such other interlocutory orders as may appear to the Court to be just and convenient.
Under Section: 151 of the Code of Civil Procedure, 1908
Saving of inherent powers of Court: Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
Short description of the suit: The relevant facts of the case are that the apposite parties filed the above suit kabalas executed by the defendants on 7.4.84, 6.5.84 and 13.5.84 are illegal, void and not binding upon the wakf estate, etc. the plaintiffs also filed an application for injunction to restrain the defendants from changing the nature and character of the suit land during the pendency of the suit and the learned subordinate Judge by order dated 9.2.85 ordered for maintaining status quo with respect of the suit land. The plaintiff after wards filed two cases for violation of injunction namely miscellaneous case Nos. 33 of 1988 and 76 of 1988 against cases are pending. In the mean time, the plaintiffs filed a petition under section 94 of the code of civil procedure for arrest of the defendant petitioner on the ground stated in the petition. In the petition, it is inter alia, alleged that the defendant No 8 namely the present petitioner before as is again and again violating the orders of the court and he is going to cause damage to the suit properties and as such, he should be arrested and directed to furnish bond and security for violating the courts orders. The learned subordinate Judge by the impugned order allowed the petition. The impugned order of the learned subordinate Judge runs as follows:
’20.02.1989 বাদী পক্ষে একখানা দরখাস্ত করিয়া দরখাস্তের বর্ণিত কারনে ৫।১১।৮৮ ইং তারিখে প্রার্থীত মতে ৮নং বিবাদীর বিরুদ্ধে গ্রেফতারী পরোয়ানা ইস্যু করিবার আদেশ করা হয়। দরখাস্তের অনুলিপি বিবাদী পক্ষে আপত্তি সহকারে গ্রহন করেন। শুনিলাম, প্রার্থনা মঞ্জুর করা হইল। ৮নং বিবাদীর উপর গ্রেফতারী পরোয়ানা ইস্যু করা হউক।
Principle of the suit: - Warrant to arrest the defendant- As the suit is for determination of right to immovable property, the subordinate judge had no jurisdiction to pass the order of arrest of the defendant nor such an order could be passed in exercise of the court’s inherent jurisdiction.