P L D 1969 Dacca 82 (PLP)

This Second Appeal has been filed against a judgment and decree in appeal passed by the Subordinate Judge, 3rd Court, Dacca affirming the order of Munsif, 3rd Court, Dacca, dated 10‑4‑1967 rejecting the plaint filed by the appellant under Order VII, rule 11(d) of the Civil Procedure Code. The plaintiff had filed a suit making certain statements in the plaint and praying for certain reliefs. The plaint was admitted and summons were served when respondent No. 1 Dacca Improvement Trust appeared and filed an application on 24th of March 1967 praying that the suit be dismissed as being barred under the law. It was stated in paragraph 1 of the petition before the said trial Court that the suit has been instituted against the defendants challenging the order of requisition passed under section 93‑A of Town Improvement Act, 1953, as amended and it was claimed that such a suit was barred under section 93‑G of the Town Improve ment Act, 1953. The learned Munsif heard the matter on 10th of April 1967 and accepted the contention of defendant No. I holding that the prayer for declaring two notices dated 2‑2‑1967 and 3‑9‑1966 as illegal and void and inoperative amounted to render the order of requisition from taking effect, and as such the suit was against the order of requisition of the suit land. Accordingly the suit for declaration as prayed for was incompe tent under section 93‑C of the Town Improvement Act. The learned Munsif has also held that the other prayer for declaration that the order dated 13‑8‑1966 cancelling the approval of the plan for construction on the suit land as illegal and void also came within the mischief of section 93‑C of the Town Improve ment Act because the said order related to the requisition of the suit land and a suit for such a declaration was tantamount to setting at nought the order of requisition. On appeal the appellate Court in a more elaborate judgment, gave the plaintiff's case in detail and came to its own conclusion that it appeared from the plaintiff itself that the land had been requisitioned according to law. Moreover he stated that it is the admitted case of the parties that the disputed land had been requisitioned by defendant No. 2, the Additional Deputy Commissioner. He also found from the allegations of the plaint that as a matter of fact that land had not been de‑requisitioned as promised by the Chairman of the Dacca Improvement Trust so that in his opinion the land remained requisitioned. The learned Appellate Court thereafter referred to the first prayer as, originally made without adverting to the prayer for amendment. and also the 2nd prayer made in the plaint and ultimately came to the conclusion that the suit was also barred under section 93‑C of the Town Improvement Act. Hence this Second Appeal. Before I take up the contentions of the learned Advocates appearing on behalf of the appellant and the sole respondent the Dacca Improvement Trust, I would clarify the position regarding the facts and circumstances relating to the suit which appear from the records. The plaintiffs‑appellants filed the relevant suit on. 9th February 1967. The plaintiffs made the Dacca Improvement Trust defendant No. 1, the Additional Deputy Commissioner (Devl.) defendant No. 2, and the Government of East Pakistan, represented by the Secretary to the Government of East Pakistan, Revenue Department, as defendant No.

3. Thereafter by an order dated 8th April 1967 the Authorised Officer, Dacca Improvement Trust, Dacca was made defendant No. 3 and the Government of East Pakistan was made defendant No.

4. Then plaintiffs alleged that they were 16 as owner of the premises in the suit mentioned in the Schedule. Toe Schedule is to the following effect: "All that piece and parcel of land situated within Sahar Dacca under P. S. Lalbag, in part of C. S. Plot Nos. 16, 17‑P Sheet No. 22, Ward No. 3, measuring about 1' bighas." It is alleged that the plaintiffs were enjoying the premises in suit and adversely against all, when a notice bearing No. L/87, dated 9‑10‑1961, was served upon the plaintiffs acquiring, the land mentioned in the Schedule in the plaint for the purpose of Dacca‑Badda Road. In paragraph 4 it is stated that the plaintiffs met the then Chairman, Mr. Madani who gave patient bearing and also assured the plaintiff's that the land beyond the proposed road alignment would not be required for the Dacca Improvement Trust and the premises in suit would be returned to the plaintiffs in due time. Then the plaintiffs stated that in pursuance of the said assurance of the then Chairman Mr. Madani, the plaintiffs submitted the plan for construction of a three‑storeyed pucca building for Commercial purpose on the land beyond the road alignment. It is claimed that the Defendant No. 1, the Dacca Improvement Trust, after proper investigation and being satisfied with the plan approved it by Order No. 2246, dated 4‑11‑1965, after vacating the Requisition Order dated 20‑3‑1963 and as a result of this order, the plan submitted by the plaintiffs for erect ing a commercial building was duly approved by Memo. No. 881 T. P., dated 8‑3‑66, by the Authorised Officer of the defendant No.

1. It is further stated that before approval of the said building plan Chairman, Mr. Madani along with other officers visited the site and all the structures of the plaintiffs situated beyond the road alignment and being satisfied the plan of the plaintiffs was approved. Thereafter it is stated that the defendant No. 1 Dacca Improvement Trust approved the said plan by Memo. No. 2728 T. P. dated 6‑8‑65 and Memo. No. 881 T: P. dated 8‑3‑66, .and directed the plaintiff to carry on construction work. Although the plaint does not make it clear, it appears that from the statement in paragraph 7 of the plaint that two distinct plans were approved for two distinct buildings. The further statement in the plaint shows that the subject‑matter of the dispute is that is described by the plaintiff as the proposed commercial buildings relating to Memo. No. 881 T. P. dated 8‑3‑1966. It is claimed by the plaintiff that the defendant No. 1 had duly considered all aspects of the road alignment and was satisfied that the building in question would not affect the road alignment in any way. On the strength of the said permission dated 8‑3‑1966 the plaintiff started construction and almost completed it after incurring a heavy expenditure. The then Chairman along with other officers of the defendant No. 1 visited the site and encouraged the plaintiffs to go ahead with the construction. It is then stated in paragraph 9 that after the transfer of the said Chairman, Mr. Madani and whilst the construction on the Schedule land was going on, very unexpectedly the plaintiff received a letter No. 1202 dated 29‑3‑1966 for showing cause as to why the approved plan should not be cancelled under section 9 ‑of the East Pakistan Building Construction Act. The plaintiffs submitted their reply on 31‑3‑1966 and the officer was duly convinced and no further step against the plaintiffs were taken. Thereafter as stated in paragraph 10 of the plaint, the plaintiffs received a letter No. 2172 dated 15‑8‑1966 for cancellation of the approved building plan after lapse of about five months. It is ‑stated that after service of this notice upon the plaintiffs a notice dated 3‑9‑1966 vacating the lands was served on the plaintiffs but nothing was done on the said date and again another notice of the same kind was served on 23‑12‑1966 but nothing was done pursuant to the said notice and lastly a notice dated 2‑2‑1967 was served upon the plaintiffs asking them to vacate the premises in suit by 8‑2‑1967 failing which the plaintiffs would be vacated with police help on 9‑2‑1967. It is claimed by the plaintiffs that they had already constructed the first phase, i.e. ground floor of the premises according to the approved plan before the cancellation notice was issued and had inducted tenants therein and the plaintiffs were living in the newly‑constructed building on the back side of the proposed commercial building the plan of which was approved by the D. I. T. against which no cancellation notice was issued. Thereafter the plaintiffs filed the suit and had prayed as follows: ‑ (a) a decree be passed declaring that there is no valid and enforceable requisitions and/or acquisition or eviction served against the plaintiffs and acquisitions is in violation of the order In Memo. No. 881 T. P. dated 8‑3‑1966 referred to in the plaint, (b) a decree be passed restraining the defendants permanently from enforcing the requisition and/or acquisition and thereby disturbing the possession of the plaintiffs in the property in suit; (c) a decree granting any other relief or reliefs which the plaintiffs be found entitled to be passed against the defendants; (d) a decree be passed against the defendants with cost." On an application for amendment dated 8‑4‑1967 the plaintiffs prayed that prayer (a) should be deleted and a new prayer in the: said application should be substituted. The amended prayer is as follows: ‑ "(a) a decree be passed declaring that the order dated 13‑8‑66 contained in Memo. No. 3172 T. P. passed by the authorised Officer of the D.

1. T., Dacca cancelling the permission accorded in letter No. 881 T. P. dated 8‑3‑66, is illegal, void, mala fide without jurisdiction and is not binding upon the plaintiffs and that the subsequent notices issued upon the plaintiffs on the strength of the said illegal order viz. notices dated 3‑9‑66 and 2‑2‑67 are also illegal, void and inoperative." This prayer was allowed. Therefore, the plaint stood amended on 10‑4‑1967 with the new prayer (a). The plaintiffs along with the suit filed an application for temporary injunction under Order XXXIX, rule

1. On defendant's prayer time was granted to the defendant to file W/O. by 17‑4‑

47. The prayer for ad interim injunction was rejected on the undertak ing of the defendant's Advocate not to remove the suit shop till the hearing of the undertaking of the defendant's Advocate. After the amendment on 8‑4‑1967 the Court considered the application filed by the defendant No. 1 on 24‑3‑1967 regarding the maintainability of the suit on 10‑4‑1967. But it does not appear that the Court directed itself to the prayer No. (a), as amended by the order dated 8‑4‑1967. The appellate Court had, also referred to prayer No. (a) as the original prayer in the plaint and not to the amended prayer. In the High Court Mr. Khondkar appearing on behalf of the appellants has argued that the Courts below did not apply their minds to the matter ‑before them, in considering the original prayer in line of the amended prayer (a) in coming to their conclusion and as such their decision was not relatable to the materials on the record and ipso facto these orders are liable to, be set aside. When prayer (b) was pointed out to the learned Advocate be had to concede that the prayer (b) as it stands would appear to render the suit non‑maintainable under section 93‑C of the Town Improvement Act, 1953. He, therefore, filed an applica tion for amendment of the prayer (b) to the following effect: (b) a decree be passed restraining the defendants permanently from disturbing the possession of the plaintiffs in the property in suit; It is true that amendments which do not change the nature of the suit has been allowed even up to the Privy Council stage. But I am to construe the plaint as it has appeared before the Courts below or should have appeared (if they had considered the amendment) in adjudicating whether they were acting legally in rejecting the plaint. Prayer (b) was not sought to be amended even on 8th of April 1967 when prayer (a) was amended. Considering this fact I am not prepared to allow the amendment at this stage but in view of the order which I propose to make this will not preclude the plaintiffs from making the same prayer before the trial Court. Mr. Abdur Rahman Chowdhury appearing on behalf of the defendant No. 1 has first taken two preliminary objections. The first objection of Mr. Chowdhury is to the effect that the appeal before the first appellate Court was incompetent inasmuch as no copy of the decree was filed along with the Memorandum of appeal as required by Order XLI, rule 1 of the Civil Procedure Code. He has referred to the definition of decree as given in subsection 2 of the Civil Procedure Code wherein it is stated in the second portion. "It shall be deemed to include the rejection of a plaint ."Therefore, Mr. Abdur Rahman argued that the order rejecting a plaint has to be treated as a decree as laid down by law. The Memorandum of appeal should have affixed to it a copy of the decree. The plaint was rejected by an order dated 10th of April 1967. Turning to the order sheet of the Appellate Court it appears that the appeal was filed on 12th of April 1967, along with an application for maintaining the status quo and there was an order of the Appellate Court directing the parties to maintain the status quo. The appeal was filed in order to get the order in the nature of injunction from the appellate Court so that the plaintiffs might not be ejected from the premises as was threatened by the notices given by the defendant No.

2. One can understand the urgency. Moreover it appears ‑from the order‑sheet of the trial Court that the decree was prepared and signed on 6‑6‑1967. The appellant's appeal would have been infructuous if they had not been able to obtain the order regarding the maintenance of the status quo. Therefore if the appellant has to wait till 6th of June 1967, when the decree was signed their appeal would have become infructuous. In the circumstances the filing of the appeal without the copy of the decree was justified. Plaintiff should have kept himself apprised of the preparation of the decree, although he might have been misled by the fact that the appeal having been filed and the records having been called for by the appellate Court the preparation of the decree was not to be expected without the records. It is not clear what really happend and how the decree was prepared. Nevertheless a decree is on the record, which is shown to have been signed on 6th of June 1967. But the decree is only to the following effect: "It is ordered and decree that the plaint be rejected under Order VII, rule 11 of the C. P. C." The definition of decree as given in subsection (2) of section 2, C. P. C. reads as follows decree mans the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determina tion of any question within section 47 or section 144 . . . ." But in the decree prepared in this case there is no adjudication conclusively determining the rights of the parties as mentioned .in the definition. The term decree as extended to orders rejecting the plaint says to include such orders. But there is actually no adjudication in such decrees. Order XLI, rule 1 requires filing of the decree so that the appellate Court can advert to the us between the parties immediately and if necessary may exercise its power under Order I, rule 11, C. P. C. It is true that an appeal is from the decree but a decree which does not record any adjudication or determination of the claim between the parties cannot be such a decree as contemplated by Order XVI, rule 1.Although it is a preliminary requirement cannot hold that filing of a decree in an appeal from an order rejecting a plaint is sine qua non. The appeal however was heard and the both parties appeared before the appellate Court: If the appellate Court could not entertain the appeal for want of the copy of the decree, the appellate Court was acting without jurisdiction but the parties having submitted to the said jurisdiction it will not be open for them to challenge the said fact in second appeal. Mr. Rahman says that he did point out the fact of the absence of the decree to the appellate Court. But it appears the appellate Court took no notice of the fact. The defect could have been remedied if the appellate Court had so directed as the order of the appellate Court was passed on 19th July 1967 when the decree had already been prepared by the trial Court. Mr. Khondkar in this connection has contended that although the first appeal might not be competent the second appeal there from is competent and has relied on the case of Juran Chandra Mondal and others v. Sushila Debi and others (P L R 4 Dacca 614) and on the cases of Province of (East) Bengal v. Priyanath Guha and another (P L R 5 Dacca 182) and Fazil Mia and others v. Sole man and others (P L R 5 Dacca 411). Reverting back to Mr. Abdur Rahman's argument I would like to refer to the cases cited by him. The first case he cited was that in the case of Gela Ram and others v. Ganga Ram and others (A I R 1920 Lah. 395). This was a case where the decree was not properly drawn up. But such is not the case here. As no decree was drawn up in the above case their Lordships are pleased to hold that no appeal could lie. But in this particular case a decree has been drawn up and therefore, that case does not support the contention of Mr. Abdur Rahman. Then he referred to the case of Mubarak Ali Shah v. Secretary of State (A I R 1925 Lah. 438). In that case the second appeal was not accompanied by the decrees and their Lordships referred to the Patna High Court decision in the case of Rijan Thakur v. Charitar Takur (A I R 1922 Pat. 580) and stated that there was nothing said in that case about the High Court having any power to dispense with a copy of the decree. It does not appear whether in fact decrees were prepared in that case and it was with reference to the entertainment of the second appeal by the High Court. As such this case is also not strictly applicable to the point at issue namely whether the first appeal before the appellate Court was competent. The next case referred to by Mr. Rahman is the case of Banwari Lal Varma v. Amrit Sagar Gupta and others (1949 East Punj. 400). Here the decree was also not prepared and the High Court held following the case of Gela Ram and others v. Ganga Ram and others as no decree was prepared no appeal would lie. I have already dealt with this point above and for the same reason I hold that a decree having been prepared the observations made are not applicable. The Supreme Court of India has considered this question and considered the case referred to by Mr. Abdur Rahman Chowdhury along with a large number of other cases in the case of Jagat Dhish Bhargava v. Jawahar Lal Bhargava and others (A I R 1961 S C 832). In that case after the suit was dismissed a Memorandum of appeal along with the judgment dismiss in the suit and the taxed bill of costs endorsed on the back of the last pages of the judgment was filed in the High Court. The competency of the appeal was questioned before the High Court and was in dispute before the Supreme Court. In an elaborate judgment the Supreme Court has held that if at the time when the appeal is preferred a decree has already been drawn up by the trial Court and the appellant has not applied for it in time it would be a clear case where the appeal would be incompetent and a penalty of dismissal would be justified. The position would however, be substantially different if at the time when the appeal is presented before the appellate Court a decree in fact had not been drawn up by the trial Court; in such a case if an application has been made by the appellant for a certified copy of the decree, then all that can be said against the appeal preferred by him is that the appeal is premature since a decree has not been drawn up, and it is the decree against which an appeal lies. Their Lordships go on holding that it would be for the officer receiving the appeal to return the Memo. of appeal for presentation with the certified copy of the decree after it is obtained. But if it had passed that stage "then the only fair and rational course to adopt would be to adjourn the hearing of the appeal with a direction that the appellant should produce the certified copy of the decree as soon as it is supplied to him" and their Lordships further held it would be their duty to draw up the decree forthwith without any delay. "Lastly, their Lordships held that no hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed under Order XLI, rule

1. Appropriate orders will have to be passed having regard to the circumstances of each case and ultimately their Lordships upheld the order of the High Court accepting the Memorandum of Appeal on a certificate of the learned Advocate concerned to the effect that no decree had been prepared in that case. This case of the Supreme Court of India has really laid down some salutary principles, which should be the guiding factors in similar cases. It should be remembered as has been observed by their Lordships that it would be unreasonable to penalise a party for the default of the office by suggesting that it was necessary that the party should have moved the Court for the drawing up of the decree, as it was held that it is not a part of the duty of the litigant to file an application to draw up the decree pronounced in any of the suit. After taking all these factors into consideration and my own observation above I hold that though the appeal was defective in form the appeal was maintainable and could have been rectified by a suitable order of the Court for filing the certified copy of the decree along with the Memorandum. I take it that the decree, after being prepared had formed a part of the records before the appellate Court. As the decree was prepared and was in. the record and the decision of the appellate Court was duly made I must presume that the Court below had adverted to the decree in question. So far as the second appeal is concerned Mr. Abdur Rahman has further pointed out that there is a certificate by the learned Advocate concerned to the following effect "My instruction is that no decree has been drawn up by the learned Munsif. (Sd.) Abdur Rab (I) Advocate." The appeal was registered and admitted but the fact remains that there is a decree by the trial Court on record and as such the second appeal is incompetent. The observation made by me: with regard to the appeal before the first Court also holds good in this second appeal. The Rules framed by this Court under Rule 7 of Chapter 5 requires that the Memo. of appeal against the decree or any order passed by superior Court shall be accompanied by the judgment and decree of order of both the lower Courts. In this case as I have pointed out the appellant most likely were not aware that a decree had been prepared as it is not generally known that an order rejecting a plaint would amount to a decree and would require the preparation of such a decree. Be that as it may the decree in this case being of the nature as already stated non‑filing of the same at the time of registration of the appeal would not be vital to the appeal itself. The certificate given by the learned Advocate shows that the party bona fide believed no decree had been prepared. I have directed the appellant before me to file a certified copy of the decree in this Court in order to rectify the preliminary defect. So far as the lower appellate Court below is concerned they need not file another certified copy of decree before the same Court as in any case after the disposal of the appeal the plaintiff‑appellant would have been entitled to take back the decree filed by him in the Court of appeal. Considering these facts and the relevant law on the point. I over rule the preliminary point of objection raised by Mr. Abdur Rahman Chowdhury. The question before me is whether the trial Court acted legally in rejecting the plaint as it stood before him on 10th of April 1967 under Order VII, rule 11 (d). It was claimed by the defendant No. I in his application dated 24th of March 1967 that the suit was instituted against the defendants challenging the order of requisition passed under section 93‑A of Town Improve ment Act, 1953 and as such was barred under section 93‑C of the Town Improvement Act, 1953. The power of a Court to reject a plaint is based on the provisions of Order VII, rule 11, which reads as follows: ‑ "The plaint shall be rejected in the following cases: (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiffs, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp‑paper within a time to be fixed by the Court, fails to do so. (d) where the suit appears from the statement in the plaint to be barred by any law." It is obvious that the defendant No. 1 was relying on clause (d) of Rule

11. The defendant No. 1 as well as the Courts below have adverted to the prayer portion of the plaint. So far as prayer A as it originally stood it would appear prima facie have been directed against the order of requisition or acquisition. But the prayer stood amended on the date that the suit was taken up for hearing on the preliminary point and the amended prayer has got no reference to the order of requisition or acquisition. However, prayer B was there and the first part related to restraining the defendants permanently from enforcing the requisition and/or acquisition and thereby disturbing the possession of the plaintiffs in the suit property. The plaintiff has prayed for amending this prayer before me. The new prayer is for a decree restraining the defendant permanently from the possession of the plaintiff in the property in suit. Analysing prayer B as it stood it seems to me that the substantive prayer was for restraining the defendants from disturbing the possession of the plaintiffs in the property in suit. '1 'he basis of such a prayer was that the defendant be restrained from enforcing the requisition and acquisition question. Be that as it may, the Legislature has not restricted the enquiry by the Court under Order VII, rule 11(d) to a consideration of the prayer portion of the plaint only. The clear mandate to the Court is that the conclusion that the Court must derive that a suit is barred by any law must be based on the statement in the plaint; that is the Court must apply its mind to the case of the plaintiff a set out in the body of the plaint. In view of the statement made 9n the plaint in this case, which I have already set out earlier, the first portion of prayer seems to me to be redundant. It has no relation to the stand in the plaint. On the other band, the prayer is rather contrary to the facts and circumstances delineated in the plaint itself on which the plaintiff has tried to rely. The statements in the plaint clearly show that the plaintiffs' case was that the disputed property had been acquired by the defendant No.

1. It has been clearly, stated in paragraph 3 of the petition that the defendant No. 1 served a notice bearing No. 183 dated 9‑10‑61 upon the plaintiffs acquiring the land mentioned in the Schedule of the plaint for the purpose of Dacca‑Badda Road. Whatever may the legal position the plaintiffs' case is that they accepted the notice referred to in paragraph 3 as a notice acquiring the disputed property by the defendant No.

1. The subsequent paragraph indicated that the plaintiffs negotiated with the Chairman of the defendant No. 1 and obtained a permission as signified by Order No. 2246 dated 4‑11‑1965 for building two houses on the suit land. The plaintiffs go so far as to allege that the defendant No. 1 passed order after vacating the order of requisition dated. 20th March 1963. Whether in law the Chairman could do so or whether in fact the Chairman has done so can only be deter mined by investigation and evidence. The sum and substance of the plaintiffs' case is that after the acquisition was completed the plaintiff obtained licence to remain on the land with the permission of the defendant No. 1 and was permitted to raise structures on the land and after the transfer of the Chairman of the defendant No. 1 the previous permission has been cancelled. Here the plaintiffs' case does not challenge the original requisition at all. The plaintiffs' case is based on a new contract derived from negotiation with the Chairman of the defendant No. 1 and approval of other officers. Whether the plaintiff can substantiate the same or not is a matter of evidence and can only be decided in the trial itself. But it cannot be said that this claim is barred under section 93‑C of the Town Improvement Act, 1953. Section 93‑C of the 'Town Improvement Act reads as follows: "Except as expressly provided in this Chapter no Civil Court shall entertain any suit or application against any order passed or any action taken under this Chapter and all suits and appeals pending in any such Court against any such order passed or any action taken under this Chapter shall abate with effect from the date of coming into force of the Town Improvement (Amendment) Ordinance, 1965." There fore, what has been debarred by section 93‑C is a suit against any order passed or any action taken under Chapter IV of the Town Improvement Act, of all the sections in Chapter I V the relevant section is section 93‑A. The procedure for requisition for the purpose of acquisition on behalf of the Board is set out completely in this section. But I find no reference in the plaint to any Order made under section 93‑A of the Town Improvement Act. It is true that in paragraph 10 references are made to certain notices. But whether these notices are notices under section 93‑A of the Town Improvement Act are to be determined in the suit itself. The plaintiff has merely referred to them as notices to vacate the premises and nothing else. The whole case of the plaintiff is that he had been given permission to build on acquired land and he had pursuant to the said permission constructed a portion of the proposed premises he was not liable to be evicted. In fact there is no challenge to the order of requisition or acquisition. On the other hand plain reading of the plaint shows that there is acceptance of the requisition and acquisition of the disputed property. Although it is not clearly stated, but it is sufficiently clear from the plaint that two plans were submitted with regard to the suit property and the plan with respect to one has not been cancelled although it relates to a part of the same property which is said to have been acquired. All these questions can be fairly raised in the trial itself. Mr. Abdur Rahman has tried to show with reference to the counter‑affidavit filed by him in reply to the petition for injunction filed in this Court the chain of circumstances but as a suit has been filed and as I am of the view that the suit should be tried I do not propose to refer to those circumstances excepting to certain allegations which have been made in the affidavit‑in‑reply by the plaintiff to which Mr. Abdur Rehman has drawn my attention. The allegations are in paragraph 2 thereof. These statements referred to the deponent who affirmed the affidavit‑in‑opposition and in my opinion in view of the fact that the alleged false statements were found to be true in the judgment of this Court in Writ Petitions Nos. 156, 159, 162, 181 and 182 in which the plaintiffs were also parties it is totally unjustified and to say the least rash and negligent. The learned Advocate should not employ such terms on mere instructions from the plaintiff. This being the first time that this fault has been committed by the learned Advocate, I am not taking any notice of it, but the learned Advocate should be very careful in future. Mr. Abdur Rahman also referred to section 14 of the East Bengal Building Construction Act, 1952, which bars the jurisdiction of the Court to enquire into the legality of any order made under section 9 of the said Act. As such Mr. A. Rahman's contention was, viewed from that angle, prayer A would also be outside the jurisdiction of the Civil Court but this point was not taken before the trial Court. I, therefore, do not propose to deal with the same as any expression of opinion by me would prejudice the case of the parties before the trial Court where the defendant is at liberty to raise it. Considering all the facts and circumstances of the case I hold that the statement in the plaint does not challenge any order or action taken under Chapter 4 of the Town Improvement Act, 1953 and as such the suit is not barred under section 93‑C of the Town Improvement Act. The appeal is, therefore, allowed and the order rejecting the plaint is set aside and the trial Court is directed to proceed with the suit from the point when rejected the plaint by its order dated 10‑4‑1967. There will be no order as to costs. Before parting with the case I must thank the learned Advocates on both sides who had assisted me duly in dealing with the large number of important law position. So far as the Rule is concerned which was heard analogously by me; for the view that I have taken in the connected second appeal I direct that the status quo be maintained till the records reach the trial Court and intimation is given to the learned Advocates of the parties. The Rule is disposed of in the above terms. There will be no order as to costs. Send down the records expeditiously. Leave to appeal under clause 15 is prayed by Mr. A. Rehman but is refused. A. E./S. A. H. Appeal allowed.