High Court Division :
(Civil Revisional Jurisdiction)
Sheikh Abdul Awal J
Saiful Islam (Md) …………Defendant-Petitioner
vs
AK Fozlul Haque and others………….Plaintiff- Opposite Parties
Judgment May 6th, 2014.
Muslim Marriages and Divorce (Registration) Act (LII of 1973)
Rule 10
License of a Nikah Registrar is to be granted only for 1 (one) union, not more than one union. . ….. (14)
AJ Mohammad Ali and Rubaiyat Hossain, Advocates -For the Petitioner.
Mohammad Nurul Haque, Advocate-For the Opposite Party No.1.
Md Abdul Hai, DAG-For the Opposite Party No.4.
Judgment
This Rule was issued calling upon the opposite party No.1 to show cause as to why the judgment and decree dated 19-10-2011 passed by the learned Additional District Judge, 3rd Court, Kishoregonj in Other Appeal No.125 of 2005 reversing those dated 29-9-2005 passed by the learned Senior Assistant Judge, Sadar, Kishoregonj in Other Class Suit No.233 of 2004 allowing the application under Order VII, rule 11(d) of the Code of Civil Procedure for rejection of the plaint should not be set-a-side.
2. Short facts necessary for the disposal of the case are that the opposite party, as plaintiff instituted a suit being Other Class Suit No. 233 of 2004 in the Court of Senior Assistant Judge, Sadar, Kishoregonj for declaration that the order dated 12-10-2004 issued under Memo No. 7/2No-92/85/1135 by the defendant opposite party No.1 appointing the defendant No.2 as Nikah Registrar of Maria Union is illegal, void and without jurisdiction.
3. Defendant-petitioner No. 2 entered appearance in the suit and filed an application under Order VII, rule l1(d) of the Code of Civil Procedure for rejection of the plaint stating, inter-alia, that the plaintiff is not entitled to continue as Nikah Registrar for more than one union according to the provision of Rule 10 of Rules, 1975 as amended on 2-10-2002.
4. Plaintiff-opposite party resisted the said application by filing written objection stating, inter-alia, that the contents of the plaint do disclose cause of action for the suit and the plea of implied bar raised in the application for rejection of the plaint is mixed question of law and fact which need thorough investigation on adequate evidence for arriving at a correct decision on framing specific issues by the trial Court and, as such, the application for rejection of the plaint is liable to be rejected.
5. The learned Senior Assistant Judge, Sadar, Kishoregonj upon hearing parties and considering the relevant law along with the contents of the plaint allowed the application for rejection of the plaint by his judgment and decree dated 29-9-2005.
6. The plaintiff-petitioner, thereafter, preferred Other Appeal No.125 of 2005 before the learned District Judge, Kishoregonj against the said judgment and decree dated 29-9-2005, which was eventually transferred to the Court of Additional District Judge, 3rd Court, Kishoregonj, who by the impugned judgment and decree dated 19-10-2011 set-aside the judgment and decree dated 29-9-2005 passed by the learned Senior Assistant Judge, Sadar, Kishoregonj in Other Class Suit No.233 of 2005 on the ground that the suit is not barred by any law.
7. Being aggrieved thereby the present defendant-petitioner has come before this Court and obtained the present Rule.
8. Mr AJ Mohammad Ali, the learned Advocate appearing for the petitioner in the course of his argument upon placing the plaint of the suit submits that it is apparent from the plaint the plaintiff filed the suit challenging the Memo No.7/2N-92/85/1135 dated 12-10-2004 issued by the Senior Assistant Secretary, Ministry of Law, Justice and Parliamentary Affairs by which the concerned authority of the Government appointed the defendant petitioner as Nikah Registrar of No.8, Maria Union in curtailing the power of plaintiff opposite party as he continued to remain as Nikah Registrar for two Unions which is in conformity with the Rule 10 of Rules, 1975 as amended on 2nd October, 2002. The learned Counsel further submits that the learned Additional District Judge erred in law in setting-aside the well founded judgment of the trial without properly considering the facts of the case and the case made out by the petitioner and the same has occasioned failure of justice.
9. Mr Mohammad Nurul Haque, the learned Advocate appearing for the plaintiff opposite party, on the other hand, supports the impugned judgment and decree which was according to him just, correct and proper. He submits that the Court of appeal below was perfectly justified in setting-aside the judgment and decree of the trial Court on the clear finding that neither the defendant nor the trial Court mentioned under what law the suit is barred. Finally, the learned Advocate submits that the proposition of law is by now well settled that in deciding an application under section 7, rule l1(d) of the Code of Civil Procedure the Court cannot travel beyond the averments of the plaint and the plea of implied bar raised in the application for rejection of the plaint is mixed question of law and tact, which can be decided only at the trial on taking evidence.
10. Mr Md Abdul Hai, the learned Deputy Attorney-General appearing for the opposite party No.4, Secretary, Ministry of Law, Justice and Parliamentary Affairs submits that under section 9 of the Code of Civil Procedure all suits of civil nature lie in Civil Court unless the same is impliedly barred by specific provision of law, the issues involved in the present suit are clearly and plainly barred by the provisions of Rule 10 of Rules 1975 as amended on 2-10-2002. Finally, the learned Deputy Attorney-General submits in any event this is not a case in which the ordinary Civil Court has jurisdiction to grant the relief asked for by the plaintiff opposite party No. 1.
11. I have heard the learned Advocates for both the sides as well as the learned Deputy Attorney-General and perused the revision application, judgments of two Courts below together with the connected laws. The only material question for consideration in this case is, whether the Court of appeal below has committed any illegality in holding that the suit is not barred by any law.
12. It appears that in the present case the plaintiff-opposite party No.1 continued to remain as Nikah Registrar for 2(two) unions, that is, Maria Union and Binnati Union under Kishoregonj District.
13. In exercise of the power under section 14 of the Muslim Marriage and Divorce Registration Act, 1974, Rules, 1975 was promulgated. Rule 10 speaks of an area in which a Nikah Registrar may be licensed to exercise his jurisdiction. Rule 10 was amended on 19-1-93 and thereafter it was further amended on 30-12-97 by specifying the area within which a Nikah Registrar may be appointed and thereafter further it was amended on 2nd October, 2002 as published in Official Gazette on 3-10-2002. The jurisdiction of a Nikah Registrar as per present amended Rule 10 of Rules 1975 is as under:
10. Jurisdiction:-Notwithstanding anything contained in these Rules or in any license granted under these Rules, an area for which a Nikah Registrar may be licensed shall be-
(a) In the case of a City Corporation, not more than one ward;
(b) In the case of a municipality of-
(i) Category’ A’ not more than one ward;
(ii) Category ‘B’ not more than two wards; and
(iii) Category ‘E’ not more than three wards; and
(c) in other cases, not more than one union”.
14. From a reading of the above mentioned notification published in the Official Gazette 3rd October, 2002, it appears that license of a Nikah Registrar is to be granted only for 1 (one) union, not more than one union.
15. I like to cut short this matter inasmuch as 1 have already found the opposite party No.1 continued to remain as Nikah Registrar for 2 (two) unions, that is, Maria Union and Binnati Union under Kishoregonj District.
16. For an answer to the question raised in this Rule it is necessary to examine the impugned Memo No.7/2N-92/85/1135 dated 12-10-2004 issued under the signature of the defendant opposite party No. 1. The impugned Memo No.7 /2N-92/85/1135 dated 12-10-2004 reads as follows:
welq t wK‡kviMÄ †Rjvi m`i Dc‡Rjvi 8 bs gvwiqv BDwbq‡b wbKvn †iwRóªvi wb‡qvM cÖms‡M|
Dc‡i D‡jøwLZ wel‡qi wbgœ ¯^vÿiKvix Avw`ó nBqv RvbvB‡ZwQ †h, miKvi 1974 m‡bi gymwjg weevn I ZvjvK (†iwRóªxKiY wewagvjvi 5(1) wewai cÖ`Ë ÿgZv e‡j Rbve G,†K, dRjyj nK, wbKvn †iwRóªvi Gi GjvKv nB‡Z 8bs gvwiqv BDwbqbwU KZ©b cye©K bZzb Awa‡ÿÎ m„wó KiZ t Rb¯^v‡_© Rbve †gvt mvBdzj Bmjvg, wcZv-g„Z byiæj nK mvs †gvjøvcvov, †cvt-Dc‡Rjv+†Rjv-wK‡kviMÄ-†K 8 bs gvwiqv BDwbq‡bi A¯’vqx wbKvn wiwRóªvi wb‡qv‡Mi Aby‡gv`b cÖ`vb Kwi‡jb|
2| GB wel‡q cÖ‡qvRbxq e¨e¯’v MÖnb I wewa †gvZv‡eK `iLv¯Í Avnevb c~e©K ¯’vqx wb‡qv‡Mi c¨v‡bj †cÖi‡bi Rb¨ Aby‡iva Kiv nBj|
3| AÎ Av‡`k †Kvb gvgjvq †Kvbiæc wb‡lavÁv ev ¯’wMZv‡`k _vwK‡j Kvh©Ki nB‡e bv|
G, GBP, Gg, mvgmyj Av‡iwdb
wmwDqi mnKvix mwPe
Zvs 12-10-2014
17. From the above together with the amended provision of section 10 of the Muslim Marriage and Divorce Registration Act, I am led to hold that the defendant-opposite party No.2 committed no wrong in curtailing the Nikah Registrar ship of the plaintiff-opposite party No.1 inasmuch as the plaintiff-opposite party No.1 was continuing as Nikah Registrar for 2(two) unions, that is, Maria Union and Binnati Union under Kishoregonj District which is in conformity with the Rule 10 of Muslim Marriage and Divorce Registration Act as amended on 2-10-2002. I do not think therefore that the learned Additional District Judge made a correct approach to the simple problem.
18. In view of this, I am led to hold the instant suit filed by the plaintiff challenging the. order dated 12-10-2004 issued under Memo, No.7 /2N-92/85/1135 by the defendant No.1 by which the concerned authority of the Government appointed the defendant petitioner as Nikah Registrar of No.8 Maria Union in curtailing the power of plaintiff opposite party is clearly barred by the provisions of Rule 10 of Rules, 1975 as amended on 2-10-2002.
19. The learned Senior Assistant Judge on the facts of the case and on consideration of the legal position rightly rejected the plaint by his judgment and decree dated 29-9-2005 on assigning sound reason.
20. For the foregoing reasons stated above, both on law and fact, I hold that the judgment and decree of the appellate Court below is liable to be set-aside and that of the trial Court be restored. Consequently, the Rule is made absolute without any order as to costs. Impugned judgment and decree dated 19-10-2011 passed in Appeal No.125 of 2005 is set-a-side and that the judgment and decree of the trial Court dated 29-9-2005 passed in Other Class Suit No.233 of 2004 is restored.
Let a copy of this judgment along with the lower Courts record be sent down at once.
(Civil Revisional Jurisdiction)
Sheikh Abdul Awal J
Saiful Islam (Md) …………Defendant-Petitioner
vs
AK Fozlul Haque and others………….Plaintiff- Opposite Parties
Judgment May 6th, 2014.
Muslim Marriages and Divorce (Registration) Act (LII of 1973)
Rule 10
License of a Nikah Registrar is to be granted only for 1 (one) union, not more than one union. . ….. (14)
AJ Mohammad Ali and Rubaiyat Hossain, Advocates -For the Petitioner.
Mohammad Nurul Haque, Advocate-For the Opposite Party No.1.
Md Abdul Hai, DAG-For the Opposite Party No.4.
Judgment
This Rule was issued calling upon the opposite party No.1 to show cause as to why the judgment and decree dated 19-10-2011 passed by the learned Additional District Judge, 3rd Court, Kishoregonj in Other Appeal No.125 of 2005 reversing those dated 29-9-2005 passed by the learned Senior Assistant Judge, Sadar, Kishoregonj in Other Class Suit No.233 of 2004 allowing the application under Order VII, rule 11(d) of the Code of Civil Procedure for rejection of the plaint should not be set-a-side.
2. Short facts necessary for the disposal of the case are that the opposite party, as plaintiff instituted a suit being Other Class Suit No. 233 of 2004 in the Court of Senior Assistant Judge, Sadar, Kishoregonj for declaration that the order dated 12-10-2004 issued under Memo No. 7/2No-92/85/1135 by the defendant opposite party No.1 appointing the defendant No.2 as Nikah Registrar of Maria Union is illegal, void and without jurisdiction.
3. Defendant-petitioner No. 2 entered appearance in the suit and filed an application under Order VII, rule l1(d) of the Code of Civil Procedure for rejection of the plaint stating, inter-alia, that the plaintiff is not entitled to continue as Nikah Registrar for more than one union according to the provision of Rule 10 of Rules, 1975 as amended on 2-10-2002.
4. Plaintiff-opposite party resisted the said application by filing written objection stating, inter-alia, that the contents of the plaint do disclose cause of action for the suit and the plea of implied bar raised in the application for rejection of the plaint is mixed question of law and fact which need thorough investigation on adequate evidence for arriving at a correct decision on framing specific issues by the trial Court and, as such, the application for rejection of the plaint is liable to be rejected.
5. The learned Senior Assistant Judge, Sadar, Kishoregonj upon hearing parties and considering the relevant law along with the contents of the plaint allowed the application for rejection of the plaint by his judgment and decree dated 29-9-2005.
6. The plaintiff-petitioner, thereafter, preferred Other Appeal No.125 of 2005 before the learned District Judge, Kishoregonj against the said judgment and decree dated 29-9-2005, which was eventually transferred to the Court of Additional District Judge, 3rd Court, Kishoregonj, who by the impugned judgment and decree dated 19-10-2011 set-aside the judgment and decree dated 29-9-2005 passed by the learned Senior Assistant Judge, Sadar, Kishoregonj in Other Class Suit No.233 of 2005 on the ground that the suit is not barred by any law.
7. Being aggrieved thereby the present defendant-petitioner has come before this Court and obtained the present Rule.
8. Mr AJ Mohammad Ali, the learned Advocate appearing for the petitioner in the course of his argument upon placing the plaint of the suit submits that it is apparent from the plaint the plaintiff filed the suit challenging the Memo No.7/2N-92/85/1135 dated 12-10-2004 issued by the Senior Assistant Secretary, Ministry of Law, Justice and Parliamentary Affairs by which the concerned authority of the Government appointed the defendant petitioner as Nikah Registrar of No.8, Maria Union in curtailing the power of plaintiff opposite party as he continued to remain as Nikah Registrar for two Unions which is in conformity with the Rule 10 of Rules, 1975 as amended on 2nd October, 2002. The learned Counsel further submits that the learned Additional District Judge erred in law in setting-aside the well founded judgment of the trial without properly considering the facts of the case and the case made out by the petitioner and the same has occasioned failure of justice.
9. Mr Mohammad Nurul Haque, the learned Advocate appearing for the plaintiff opposite party, on the other hand, supports the impugned judgment and decree which was according to him just, correct and proper. He submits that the Court of appeal below was perfectly justified in setting-aside the judgment and decree of the trial Court on the clear finding that neither the defendant nor the trial Court mentioned under what law the suit is barred. Finally, the learned Advocate submits that the proposition of law is by now well settled that in deciding an application under section 7, rule l1(d) of the Code of Civil Procedure the Court cannot travel beyond the averments of the plaint and the plea of implied bar raised in the application for rejection of the plaint is mixed question of law and tact, which can be decided only at the trial on taking evidence.
10. Mr Md Abdul Hai, the learned Deputy Attorney-General appearing for the opposite party No.4, Secretary, Ministry of Law, Justice and Parliamentary Affairs submits that under section 9 of the Code of Civil Procedure all suits of civil nature lie in Civil Court unless the same is impliedly barred by specific provision of law, the issues involved in the present suit are clearly and plainly barred by the provisions of Rule 10 of Rules 1975 as amended on 2-10-2002. Finally, the learned Deputy Attorney-General submits in any event this is not a case in which the ordinary Civil Court has jurisdiction to grant the relief asked for by the plaintiff opposite party No. 1.
11. I have heard the learned Advocates for both the sides as well as the learned Deputy Attorney-General and perused the revision application, judgments of two Courts below together with the connected laws. The only material question for consideration in this case is, whether the Court of appeal below has committed any illegality in holding that the suit is not barred by any law.
12. It appears that in the present case the plaintiff-opposite party No.1 continued to remain as Nikah Registrar for 2(two) unions, that is, Maria Union and Binnati Union under Kishoregonj District.
13. In exercise of the power under section 14 of the Muslim Marriage and Divorce Registration Act, 1974, Rules, 1975 was promulgated. Rule 10 speaks of an area in which a Nikah Registrar may be licensed to exercise his jurisdiction. Rule 10 was amended on 19-1-93 and thereafter it was further amended on 30-12-97 by specifying the area within which a Nikah Registrar may be appointed and thereafter further it was amended on 2nd October, 2002 as published in Official Gazette on 3-10-2002. The jurisdiction of a Nikah Registrar as per present amended Rule 10 of Rules 1975 is as under:
10. Jurisdiction:-Notwithstanding anything contained in these Rules or in any license granted under these Rules, an area for which a Nikah Registrar may be licensed shall be-
(a) In the case of a City Corporation, not more than one ward;
(b) In the case of a municipality of-
(i) Category’ A’ not more than one ward;
(ii) Category ‘B’ not more than two wards; and
(iii) Category ‘E’ not more than three wards; and
(c) in other cases, not more than one union”.
14. From a reading of the above mentioned notification published in the Official Gazette 3rd October, 2002, it appears that license of a Nikah Registrar is to be granted only for 1 (one) union, not more than one union.
15. I like to cut short this matter inasmuch as 1 have already found the opposite party No.1 continued to remain as Nikah Registrar for 2 (two) unions, that is, Maria Union and Binnati Union under Kishoregonj District.
16. For an answer to the question raised in this Rule it is necessary to examine the impugned Memo No.7/2N-92/85/1135 dated 12-10-2004 issued under the signature of the defendant opposite party No. 1. The impugned Memo No.7 /2N-92/85/1135 dated 12-10-2004 reads as follows:
welq t wK‡kviMÄ †Rjvi m`i Dc‡Rjvi 8 bs gvwiqv BDwbq‡b wbKvn †iwRóªvi wb‡qvM cÖms‡M|
Dc‡i D‡jøwLZ wel‡qi wbgœ ¯^vÿiKvix Avw`ó nBqv RvbvB‡ZwQ †h, miKvi 1974 m‡bi gymwjg weevn I ZvjvK (†iwRóªxKiY wewagvjvi 5(1) wewai cÖ`Ë ÿgZv e‡j Rbve G,†K, dRjyj nK, wbKvn †iwRóªvi Gi GjvKv nB‡Z 8bs gvwiqv BDwbqbwU KZ©b cye©K bZzb Awa‡ÿÎ m„wó KiZ t Rb¯^v‡_© Rbve †gvt mvBdzj Bmjvg, wcZv-g„Z byiæj nK mvs †gvjøvcvov, †cvt-Dc‡Rjv+†Rjv-wK‡kviMÄ-†K 8 bs gvwiqv BDwbq‡bi A¯’vqx wbKvn wiwRóªvi wb‡qv‡Mi Aby‡gv`b cÖ`vb Kwi‡jb|
2| GB wel‡q cÖ‡qvRbxq e¨e¯’v MÖnb I wewa †gvZv‡eK `iLv¯Í Avnevb c~e©K ¯’vqx wb‡qv‡Mi c¨v‡bj †cÖi‡bi Rb¨ Aby‡iva Kiv nBj|
3| AÎ Av‡`k †Kvb gvgjvq †Kvbiæc wb‡lavÁv ev ¯’wMZv‡`k _vwK‡j Kvh©Ki nB‡e bv|
G, GBP, Gg, mvgmyj Av‡iwdb
wmwDqi mnKvix mwPe
Zvs 12-10-2014
17. From the above together with the amended provision of section 10 of the Muslim Marriage and Divorce Registration Act, I am led to hold that the defendant-opposite party No.2 committed no wrong in curtailing the Nikah Registrar ship of the plaintiff-opposite party No.1 inasmuch as the plaintiff-opposite party No.1 was continuing as Nikah Registrar for 2(two) unions, that is, Maria Union and Binnati Union under Kishoregonj District which is in conformity with the Rule 10 of Muslim Marriage and Divorce Registration Act as amended on 2-10-2002. I do not think therefore that the learned Additional District Judge made a correct approach to the simple problem.
18. In view of this, I am led to hold the instant suit filed by the plaintiff challenging the. order dated 12-10-2004 issued under Memo, No.7 /2N-92/85/1135 by the defendant No.1 by which the concerned authority of the Government appointed the defendant petitioner as Nikah Registrar of No.8 Maria Union in curtailing the power of plaintiff opposite party is clearly barred by the provisions of Rule 10 of Rules, 1975 as amended on 2-10-2002.
19. The learned Senior Assistant Judge on the facts of the case and on consideration of the legal position rightly rejected the plaint by his judgment and decree dated 29-9-2005 on assigning sound reason.
20. For the foregoing reasons stated above, both on law and fact, I hold that the judgment and decree of the appellate Court below is liable to be set-aside and that of the trial Court be restored. Consequently, the Rule is made absolute without any order as to costs. Impugned judgment and decree dated 19-10-2011 passed in Appeal No.125 of 2005 is set-a-side and that the judgment and decree of the trial Court dated 29-9-2005 passed in Other Class Suit No.233 of 2004 is restored.
Let a copy of this judgment along with the lower Courts record be sent down at once.
