AMIR HOSSAIN KHAIRATI Vs. ABDUL AZIZ BEPARI

JUDGEMENT

(1.) This appeal by leave by the defendant-appellants is from judgment and order dated 10.3.94 passed by a Division Bench of the High Court Division in First Appeal No.25 of 1985 setting aside those of the Subordinate Judge, Munshiganj dated 31.5.84 in Title Suit No. 5 of 1984 rejecting the plaint under Order 7 rule 11 of the Code of Civil Procedure and further directing the trial Court to proceed with the suit in accordance with law.

(2.) Plaintiff-respondents instituted the aforesaid suit for specific performance of contract against defendant Nos. 1 to 11 along with defendant No. 12, the People's Republic of Bangladesh, upon making various averments including that the plaintiffs filed TS No.7 of 1983 in the Court of Subordinate Judge, Munshiganj for specific performance of the same contract against defendant Nos. 1-4 but as village elders asked both the parties to withdraw pending cases both in criminal and civil Courts for settlement of the dispute the plaintiffs on good faith filed a petition for dismissal of that suit for non-prosecution, that in the meantime defendant Nos. 1-4 illegally transferred some portion of the suit property to defendant Nos. 5-11 who were fully aware of the baina patra executed by Jotirmoy Das, the vendor, in favour of the Plaintiffs, that the plaintiffs requested the principal defendants on several occasions to execute and register the sale deed in their favour on receipt of the balance consideration money but they paid no heed and hence the suit was instituted upon a new cause of action.

(3.) The present appellants, who are defendant Nos. 5-11 filed an application on 9.5.84 under Order 7 rule 11(a) (d) of the Code of Civil Procedure praying for rejection of the plaint on the ground that the plaintiffs' earlier suit being Title Suit No.7 of 1983, instituted for endorcing the same alleged contract dated 15.12.79 with Jotirmoy Das, having been dismissed for non -prosecution, the institution of the present suit is without any cause of action and is barred by law.