Islami Bank Bangladesh Limited (Appellant)
Vs.
Al-Haj Md Shafiuddin Howlader& another (Respondent)
Supreme Court
Appellate Division
(Civil)
Present:
Latifur Rahman CJ
Bimalendu Bikash Roy Chowdhury J
Kazi Ebadul Haque J
Judgment
February 29, 2000.
The Artha Rin Adalat Ain, 1990 (IV of 1990), Section 5(5)
The Code of Civil Procedure, 1908 (V of 1908), Order IX, rule 9
From the absence of any provision in the Ain prohibiting filing of an application under Order 9 rule 9 of the Code and from the specific mention of the Code in sub-section (5) of section 5 of the Ain it is clear that the provision of Order 9 rule 9 of the Code may be followed by the plaintiff financial institution before the Artha Rin Adalat for setting aside an ex parte order of dismissal of the suit for default.………………..(13).
Lawyers Involved:
Nazrul Islam, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record— For the appellant.
Ex parte—the Respondents.
Civil Appeal No. 10 of 1999
(From the judgment and order dated June 30, 1 passed by the High Court Division, Dhaka in Civil Rent No. 3975 of 1996)
Judgment:
Latifur Rahman CJ.- I agree with the main judgment of my learned brother Kazi Ebadul Hoque, J.
Bimalendu Bikash Roy Choudhury.- I have gone through the judgment of my learned brother Kazi Ebadul Hoque, J. I would like to add a few words about the import of sub-section (1) of section 6 of the Artha Rin Adalat Ain, 1990, hereinafter referred to as the Act.
3. The literal translation of this sub-section would be Subject to the provision of section 7 no proceeding, order, judgment and decree of an Artha Rin Adalat can be called in question before any court or any other authority.” If we take this provision literally it would lead us to an absurd conclusion and it would defeat the purpose for which the enactment was made. The intention of the legislature could not be that there should be no remedy if the suit brought by the financial institution, the creditor, stood dismissed for default.
4. According to sub-section (4) of section 5 of the Act the Artha Rin Adalat is a Civil Court having all the powers and jurisdiction under the Civil Procedure Code, 1908 subject to the provisions of the Act. Sub-section (5) of section 5 thereof makes the provisions of the said Code applicable, notwithstanding anything to the contrary, to the conduct of proceeding in an Artha Rin Adalat. Order 9, rule 9 is an integral part of the Code. There is no specific bar to an application under Order 9, rule 9 in the cases under the Act.
5. At the same time, under sub-section (2) of section 6 of the Act it is provided that for setting a side an ex parte decree the defendant who is a loanee will have to deposit half the decretal amount or furnish bank guarantee therefor.
6. To my mind since the enactment is intended to safeguard the interest of a financial institution the legislature purposely committed to attach any condition precedent to the filing of an application under Order 9, rule 9 of the Code of Civil Procedure, which is the absolute right of the financial institution.
7. In these circumstances, my considered view is that the word “kono adalat” occurring in sub-section (1) of section 6 of the Act refers to any other court than the Artha Rin Adalat.
For these reasons and for those contained in the judgment of my learned brother, with which I agree, I too would allow the appeal.
Kazi Ebadul Hoque J.- This appeal by leave is from judgment and order dated 30-6-98 passed by the High Court Division in Civil Revision No. 3975 of 1996 making the Rule absolute and setting aside order dated 17-10-96 passed by the Artha Rin Adalat, Khulna in Miscellaneous Case No. 24 of 1990 setting aside order of dismissal of the suit for default on 20-11-95 and restoring the suit to its original file and number.
8. Appellant Islami Bank Bangladesh Ltd. filed Title Suit No. 46 of 1994 in the Artha Rin Adalat, Khulna against respondents for realisation of money by selling the mortgaged property. The suit was being contested by the defendants by filing written statement. The suit was fixed for peremptory hearing on 20-11-95 but the plaintiff having failed to file hazira, the suit was dismissed for default on that date. Thereafter, plaintiff-appellant filed Miscellaneous Case No. 24 of 1995 under Order 9 rule 9 of the Code of Civil Procedure for restoration of the suit after setting aside the order of dismissal for default. By judgment dated 17-10-96 Artha Rin Adalat allowed the case after setting aside the order of dismissal and restored the suit to its original file and number. Being aggrieved by the same respondents moved the High Court Division in Civil Revision No. 3975 of 1996 and by the impugned judgment the Rule was made absolute and order passed by Artha Rin Adalat was set aside.
9. Appellant obtained leave against the said judgment to consider the submission that the High Court Division upon a misconception of the relevant provisions of the Act wrongly held that the provision of Order 9 rule 9 CPC is not applicable in a proceeding under the Act and thus misdirected itself to a wrong decision setting aside the order of restoration passed by the Artha Rin Adalat.
10. Appellant filed Miscellaneous Case for setting aside the ex parte order of dismissal for default on the ground that appellant’s Advocate had been away to Dhaka for his own treatment and treatment of his son on the date of hearing of the suit and as such appellant could not proceed with the suit. Respondent No. 1 contested the case denying the aforesaid allegations of the appellant. On consideration of the evidence on record Artha Rin Adalat found that Advocate of the appellant had been to Dhaka for his own treatment and treatment of his son on the date of hearing of the suit and for that reason appellant could not suffer. Before the Artha Rin Adalat respondent No. 1 did not raise the objection as to the maintainability of the case under Order 9 rule 9 of the Code of Civil Procedure. However, High Court Division observed as follows:
“It is well-settled that the Artha Rin Adalat though a Civil Court is a Court of defined nature having its own form of appeal and in the Adalat Ain excepting the provision of Order 9 rule 13 of the Code of Civil Procedure other provisions of the Code have not been made available. If a suit is dismissed for default the plaintiff may prefer an appeal but he can not invoke the jurisdiction of the Court under Order 9 rule 9 of the Code of Civil Procedure. It is well settled that the Adalat Am is a self contained Code having its own forum of appeal and in such a situation we hold that the Adalat has illegally assumed jurisdiction under Order 9 rule 9 of the Code of Civil Procedure and passed the impugned order dated 17-10-1996 and as such it requires interference.”
11. The learned Advocate for the referring to the provision of sub-section (5) section 5 of the Artha Rin Adalat Ain a observation of this Court made in the case Sultana Jute Mills Ltd vs. Agrani Bank reported 46 DLR (AD) 174 submits that Code of Civil Procedure is applicable to the proceeding of Artha Rin Adalat to the extent it is not inconsistent with a contained in the Artha Rin Adalat Ain and as such High Court Division acted illegally in holding that Order 9 rule 9 of the Code is not applicable in a case under the Ain.
12. Sub-section (4) of section 5 of Artha Rin Adalat Ain, 1990 provides that Artha Rin Adalat shall be deemed to be a Civil Court and shall exercise those powers and jurisdiction exercised by the Civil Court under the Code of Civil Procedure, 1908 subject to the provisions of the Ain. Sub-section (5) of section 5 provides that unless there is anything contrary in the Ain, Artha Rin Adalat shall follow the procedure laid down in the Code of Civil Procedure, 1908 to be followed by the Civil Court in conducting its proceedings. That the procedure made in the Code, unless there is anything contrary in the Ain, is applicable to the Artha Rin Adalat has been made clear from sub-section (2) of section 6 of the Ain. The said sub-section provides that notwithstanding anything contained in sub-section (1) defendant will have to deposit the decretal amount or bank guarantee thereon if he wants to file an application under Order 9 rule 13 of the Code for setting aside the ex parte decree. Sub-section (1) of section 6 on the other hand provides that subject to the provision of section 7 (providing for appeal) proceeding, order, judgment and decree of Artha Rin Adalat cannot be challenged before any or any other authority. Sub-section (1) of section 6 also provides that against a judgment or decree an aggrieved party may prefer an appeal before the High Court Division within 30 days provided that no appeal shall lie against any interlocutory order passed by the Artha Rin Adalat.
13. Artha Rin Adalat has been set up under the Artha Rin Adalat Ain, 1990 with a judicial officer as presiding officer for adjudication of claim loan by the financial institutions which include banks. No special procedure has been provided for trial of Artha Rin suits under the said Ain. But to expedite disposal of those suits certain provisions have been made and power to file an application under Order 9 rule 13 of the Code of Civil Procedure and prefer appeal before the High Court Division have been given subject to deposit of the decretal dues. Under sub-section (1) of section 5 of the Artha Rin Adalat Ain, Artha Rin Adalat is deemed to be a Civil Court and under sub-section (5) of section 5 Adalat is regulated by the provisions of the Code of Civil Procedure unless there is anything contrary in the Ain. On going through the provisions of the Ain we do not find any provision therein which is contrary to the provision of Order 9 rule 9 of the Code. Unless the order of dismissal for default is allowed to be set aside the plaintiff bank would suffer loss and the borrower would be benefited. It is not the intention of Ain to deprive a financial institution from realisation of its just dues from the borrower though there is sufficient reason for non-appearance of the plaintiff financial institution in Court on the date of hearing of the suit. From the absence of any provision in the Ain prohibiting filing of an application under Order 9 rule 9 of the Code and from the specific mention of the Code in sub-section (5) of section 5 of the Ain we are of the view that provisions of Order 9 rule 9 of the Code may be followed by the plaintiff financial institution before the Artha Rin Adalat for setting aside an ex parte order of dismissal of the suit for default.
14. Though this question was not specifically raised this Court in the case of Sultana Jute Mills Limited vs. Agrani Bank reported in 46 DLR (AD) 174 observed as follows:
“Section 5(4) grants to the Artha Rin Adalat the powers and jurisdictions of a Civil Court, but subject to the provisions of the Adalat Act. Section 5(5) makes the Code of Civil Procedure, 1908 applicable to the proceeding of the Artha Rin Adalat, but only if the Adalat Act does not contain anything different.”
15. Though High Court Division found relying upon the aforesaid decision that a revisional application under section 115 of the Code of Civil Procedure against an order of the Artha Rin Adalat is not maintainable made the Rule absolute invoking inherent power of the Court under section 151 of the Code. It has already been noticed that respondent No. 1 did not raise question of maintainability before the Artha Rin Adalat which found that due to the absence of the Advocate of the plaintiff- appellant for treatment of illness the suit was dismissed for default and as such said order should be set aside and the suit restored. The order of restoration having been made in the interest of justice invoking the provisions of section 151 of the Code for setting aside such an order is not in consonance with sound judicial principle specially when High Court Division found that the application under section 115 was not maintainable.
For the reasons stated above, appeal is allowed without any order as to cost. Impugned judgment of the High Court Division is set aside and the judgment and order of the Artha Rin Adalat is restored.
Ed.
Source: 52 DLR (AD) (2000) 76