High Court Division
Most. Shamsun Nahar v Md. Azizur Rahman Khan and others
Civil Revision 902/2025 · Decided 12 August 2026
The opposite parties sued for partition in Title Suit No. 243 of 2023. The petitioner applied under section 151 of the Code of Civil Procedure for rejection of the plaint, contending that the suit was barred by res judicata because her predecessor had obtained a decree in Title Suit No. 20 of 2009. The plaintiffs applied under Order VI rule 17 to amend the plaint to seek a declaration that the ex parte decree in that suit, obtained without impleading all heirs, was fraudulent and not binding. The Senior Assistant Judge, Sadar, Kushtia rejected the first application and allowed the amendment, and the Additional District Judge, Court No. 1, Kushtia affirmed in revision. The High Court Division held that the petitioner's application raised new facts requiring evidence at trial, that the amendment did not change the nature of the suit, and that the Rule was not maintainable as no leave had been sought under section 115(4). The Rule was discharged, with status quo continuing until disposal of the suit.
- Q1
Whether the courts below erred in refusing to reject the plaint in a partition suit on the ground of res judicata arising from an earlier ex parte decree, and in allowing amendment of the plaint.
- Q2
Whether a Rule issued on an application under section 115(4) of the Code of Civil Procedure against a revisional order, without leave being sought or granted, is maintainable.
- An application for rejection of the plaint that states new facts which can be adjudicated only after recording evidence at trial was rightly rejected.
- An amendment of the plaint that does not change the nature and character of the suit and is required for proper adjudication of the dispute was rightly allowed, particularly where no written objection was filed against it.
- A Rule issued on an application under section 115(4) of the Code of Civil Procedure against an order of the revisional court, where no leave was prayed for or granted, is not maintainable in law.
- The ad-interim stay was vacated, but the order of status quo on possession and position of the suit land was continued until disposal of the suit, and the trial court was directed to dispose of it expeditiously.
at the time of filing the revisional application under section 115(4) of the Code of Civil Procedure, 1908 against the order passed by the revisional Court, no leave was prayed for and the Rule was issued without granting leave.
In the court’s own words.
Civil Revision 902/2025, as published by the Supreme Court of Bangladesh. 3 pages, with paragraph numbers for citing.
1Present: Mr. Justice Md. Shohrowardi Civil Revision No. 902 of 2025 Most. Shamsun Nahar….Petitioner -Versus- Md. Azizur Rahman Khan and others….Opposite parties Mr. Kazi Amjad Hossain, Advocate
….For the petitioner
2Ms. Nurjahan Khatun, Advocate
….For the opposite party Nos. 1 to 4
Heard on 12.08.2026
Judgment delivered on 12.08.2026
3On an application under section 115(4) of the Code of Civil Procedure, 1908 Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and order dated 30.01.2025 passed by the Additional District Judge, Court No. 1, Kushtia in Civil Revision No. 21 of 2024 affirming the order No. 08 dated 03.04.2024 passed by the Senior Assistant Judge, Sadar, Kushtia in Title Suit No. 243 of 2023 rejecting the application for rejection of plaint filed by the defendant-petitioner and allowing the application for amendment of the plaint filed by the plaintiff-opposite parties should not be set aside and/or passed such other or further order or orders as to this Court may deem fit and proper.
4The relevant facts for disposal of the Rule are that the opposite party Nos. 1 to 4 as plaintiffs filed Title Suit No. 243 of 2023 in the Court of Senior Assistant Judge, Kushtia, praying for a decree of partition impleading the petitioner as defendant No. 1 who entered appearance on 28.08.2023 in the suit by filing a written statement. After filing the written statement, the defendant No. 1 filed an application under Section 151 of the Code of Civil Procedure, 1908 for rejection of plaint. After that, the plaintiff filed an application on 14.02.2024 under Order VI Rule 17 for amendment of the plaint. After hearing the parties, the trial Court, by order dated 03.04.2024, rejected the application for rejection of plaint and allowed the application for amendment of the plaint, against which the defendant No. 1 filed Civil Revision No. 21 of 2024 in the Court of the District Judge, Kushtia. The Additional District Judge, Court No. 1, Kushtia heard the civil revision and, by the impugned judgment and order dated 30.01.2025, rejected the revisional application, affirming the order dated 03.04.2024 passed by the trial Court, against which the defendant No. 1 filed this application under section 115(4) of the Code of Civil Procedure, 1908 and obtained a rule.
5Learned Advocate Mr. Kazi Amjad Hossain, appearing on behalf of the defendant-petitioner, submits that the predecessor of the defendant No. 1 obtained judgment and decree in Title Suit No. 20 of 2009 against the predecessor of the
plaintiff, which has not been challenged by the defendant before any Court, for which the instant suit is barred by the principle of res judicata under section 11 of the Code of Civil Procedure, 1908. Therefore, both the Courts below committed an error of law resulting in an error in the decision, occasioning failure of justice. He prayed for making the Rule absolute by setting aside the impugned judgments and orders passed by the Courts below.
6Learned Advocate Ms. Nurjahan Khatun, appearing on behalf of the plaintiff-opposite party Nos. 1 to 4, submits that all the heirs of Ramjan Ali Sheikh, the predecessor of the plaintiffs, were not impleaded as defendants in the Title Suit No. 20 of 2009 and by practicing fraud upon the Court and by false personation of Anwar Ali, the predecessor of the defendant obtained the exparte judgment and decree in Title Suit No. 20 of 2009 for which, the plaintiffs amended the plaint praying for a declaration that the exparte judgment and decree passed in Title Suit No. 20 of 2009 without impleading all the heirs of Ramjan Ali Sheikh is fraudulent and not binding upon the plaintiffs and also prayed for amendment of the plaint stating that the deed No. 9044 dated 25.07.1970 is liable to be cancelled. She further submits that no case under Section 151 of the Code of Civil Procedure, 1908 is made out in the application for rejection of plaint and no written objection has been filed against the application for amendment of the plaint. Therefore, the Courts below legally passed the impugned judgments and orders following the law. She prayed for discharging the Rule.
7I have considered the submissions of the learned Advocates of both the parties, perused the revisional application, impugned judgments and orders passed by the Courts below, and the records.
8On perusal of the application filed by the defendant No. 1 under Section 151 of the Code of Civil Procedure, 1908, it reveals that the defendant stated new facts in the application for rejection of the plaint which can only be adjudicated after recording evidence during trial of the case. In the application for amendment of plaint, it has been asserted that all the heirs of Ramjan Ali Sheikh were not impleaded as defendants in Title Suit No. 20 of 2009 and by false personation of Anwar Ali, the deed No. 9044 dated 25.07.1970 was registered.
9On perusal of the application filed by the plaintiffs for amendment of the plaint, it further reveals that the nature and character of the suit land will not be changed due to amendment of the plaint and the propposed amendment is required for proper adjudication of the dispute between the parties. No written objection has been filed by the defendant against the application under Order VI Rule 17 of the Code of Civil Procedure, 1908. I am of the view that both the
Courts below, on consideration of the applications filed by both the parties, legally passed the impugned judgments and orders.
10It further reveals that at the time of filing the revisional application under section 115(4) of the Code of Civil Procedure, 1908 against the order passed by the revisional Court, no leave was prayed for and the Rule was issued without granting leave. Therefore, the instant Rule is not maintainable in law.
11I find no merit in the Rule.
12With the above findings and observations, the Rule is discharged.
13The ad-interim order of stay granted at the time of issuance of the Rule is hereby vacated. However, for ends of justice, the order of status quo in respect of possession and position of the suit land passed at the time of issuance of the Rule shall continue till disposal of the suit.
14The trial Court is directed to dispose of the suit expeditiously.
15There will be no order as to costs.
16Send down the lower Court’s records at once.
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