P L D 1969 Dacca 322 (PLP)

"(ii) for that the learned Subordinate Judge acted illegally and with material irregularity in exercising his jurisdiction in rejecting the petitioner's prayer for taking up and deciding the additional issue first without considering that the decision of the additional issue in favour ‑of the petitioner would have totally concluded the suit and spared her of the cost and harassment of fighting other issues." Before considering the force of the above contention, it is necessary to quote the short order as impugned before us. It runs "19. 19‑6‑68.‑Both parties file hazira. The suit is taken up for hearing. At this stage defendant No. 1 files a petition for framing the issue. Does the marriage between the plaintiff' and defendant No. 1 still subsist. If not, whether the present suit for restitution of conjugal right should proceed and for deciding the same first before taking up any other issues. Heard, the prayer for additional issue is allowed and the same is added. As for disposing of that issue first the prayer is rejected. It is proposed that all the issues will be decided in the judgment after hearing the full evidence (V. O. P.).

20. Later. Plaintiff ready. Defendant No. 1 files a petition for adjournment of bearing of the suit today, so that the defendant No. 1 may take the matter to the Hon'ble High Court for decision. Heard both the sides. Prayer allowed in view of the defendants' intention to move the Hon'ble High Court but as the defendant did not take the step earlier, she is responsible for the adjournment and must pay the cost which is Rs.

60. O. P. to 18‑7‑68 for P. H." This shows that the learned Subordinate Judge, partially accepted the prayer of the petitioner by adding the new issue as an additional issue although he refused to decide it first. Mr. Wahab has argued that the additional issue as to whether the marriage subsisted between the parties was an issue of law and that it was an issue that went to the root of the whole case. According to him, if the learned Judge decided that issue first, the petitioner could be saved from unnecessary harassment. And that the learned Judge was bound to decide that issue first under Order XIV, rule 12 of the Code of Civil Procedure. He has also argued that the learned Judge has not given any reason for the course taken by him. The learned Subordinate Judge would have done better if be had expressed some opinion before taking the course he has taken and the contention in on this score is not altogether without substance. But examining the whole records of the case we do not feel inclined to interfere in this revision for the reason that on 15‑4‑68 the petitioner applied to the Court for stay of the suit and failing therein the petitioner did not move in revision though a revision lay therefrom. That order of 15‑4‑68 is in these terms:‑ "13. 15‑4‑68‑Defendant 1 (wife) prays for stay of the order under Order X, C. P. C. on the ground that she has already applied under the Family Laws Ordinance and hence the suit by the husband for restitution of conjugal right should be stayed. The application is opposed by the plaintiff (husband). It is to be noticed that under section 8 read with section 7 of the Family Laws Ordinance there cannot be any decision in an application under that section. The Chairman is to constitute an Arbitration Council which will take all steps necessary to bring about a reconciliation. Hence it cannot be said that the issues that are framed in the suit are also the subject‑matter of trial in the proceeding under Family Laws Ordinance. Besides it is clear that the plaintiff is not going to submit to the Arbitration and here no purpose can be served by staying this suit. The Arbitration Council under the Family Laws Ordinance cannot in that sense be called a Court and I therefore hold that section 10, C. P. C. has no applicability to this case. Hence the petition for stay under section 10 of the C. P. C. is rejected. " This shows that the learned Judge already gave some consideration to the point and having so considered that point once before, the Judge thought it fit to classify the additional issue with the other issues as already framed. The force of the application under Family Laws Ordinance was considered by the learned Judge and he came to the finding that it was not a Court for the purpose of section 10 of the Code of Civil Procedure. Moreover, Mr. Moinul Huq, learned Advocate appearing for the opposite‑party has argued not altogether without force that the Arbitration Council was not competent to grant dissolution. The petitioner actually missed the bus by not moving against this order of 15‑0‑68 and had no other alternative except trying to exploit the provisions of Order XIV, rule 2 of the Code of Civil Procedure. Relief in revision is after all discretionary and in the circumstances disclosed we do not feel called upon to interfere. The rule is, therefore, discharged, but without any orders as to costs. Let the records be sent down expeditiously. MAHMUD HOSAIN, J.‑I agree. A. E. Rule discharged.