Appellate Division Cases
Government of Bangladesh and another ………………..Appellants
Md. Raziur Rahman Chowdhury ……………………….Respondent.
A.T.M. Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Mohammad Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
JUDGEMENT DATE: 10th March 1997.
The Public servants Retirement Act, 1974,
The Code of Civil Procedure, section 80
Did not allow the plaintiff the benefit of leave preparatory to retirement and thus caused him a financial loss to the tune of about Tk.50 lakhs ……………..…(2)
High Court Division committed an illegality in withdrawing the suit from to trial Court to the High Court Division without assigning any reason, without following the requirements of law and without so much as giving an opportunity to the learned Advocate for the appellants to place the appellants’ point of view thus causing great prejudice to the appellants …………………….(5)
Civil Appeal No. 6 of 1997 (From the Judgment and Order dated 6-8-96 passed by the High Court Division in Civil Miscellaneous Case No.2 of 1995).
B. Hossain, Advocate-on-Record……………… For the appellants
Raziur Rahman Chowdhury, Advocate (appeared in person witli the leave of the Court) instructed by A.K.M. Shahidul Huq, Advocate-on-Record ………..For the respondent
1. Mustafa Kamal J: This appeal by leave by the defendant-appellants is from the judgment and order of a Division Bench of the High Court Division dated 6-8-96 in Civil
Miscellaneous Case No.2 of 1995. transferring a suit for trial from the trial Court to the
High Court Division.
2. The plaintiff-respondent filed Money Suit No. 48 of 1994 in the 1st Court of Subordinate Judge, Dhaka stating that he was a District and Sessions Judge, but
defendant No.2 who was junior to him as a District and Sessions Judge became the
Secretary, Ministry of Law, Justice and Parliamentary Affairs. Defendant No.2 compelled him to seek optional retirement under section 9(1) of the Public Servants Retirement Act, 1974. Defendant No.2 did not allow the plaintiff the benefit of leave preparatory to retirement and thus caused him a financial loss to the tune of about Tk.50 lakhs. The plaintiff served as Deputy-Solicitor before his retirement and as Deputy Secretary he was entitled to have a telephone at his residence at the cost of the Government, but defendant No.2 refused him this facility and even refused to recommend to issue a pass to him for entering into the Secretariat. As such for causing mental shock to the plaintiff and lowering down his prestige the plaintiff sued defendant No.2 for a sum of Tk.61.50 lakhs as damages after serving a notice under section 80 of the Code of Civil Procedure.
3. The defendants filed an application under Order VII Rule 11 C.P.C. but before the disposal of the said application the plaintiff-respondent filed an application, Civil
Miscellaneous Case No.2 of 1995. under section 24 C.P.C. before the High Court Division for transfer of the money suit to the High Court Division on the apprehension that the Presiding Judge of the money suit being under the control and authority of
defendant No.2, the plaintiff will not get justice in his Court.
4. A Division Bench of the High Court Division disposed of the Rule by observing that justice should not only be done but should manifestly and undoubtedly be seen to be done. Without calling upon the learned Advocate for the defendant-appellants and without considering the grounds stated in the application the learned Judges made the Rule absolute and directed that the money suit in question be withdrawn and that it shall be disposed of by the High Court Division.
5. Leave was granted to consider the submission of the defendant-appellants that the High Court Division committed an illegality in withdrawing the suit from to trial Court to the High Court Division without assigning any reason, without following the requirements of law and without so much as giving an opportunity to the learned Advocate for the appellants to place the appellants’ point of view thus causing great prejudice to the appellants.
6. The plaintiff-respondent, appearing in person, orally submitted at the time of granting leave that he had no objection if the suit was tried by the trial Court, since defendant No.2 had by then ceased to be the Secretary, Ministry of Law.
7. At the time of hearing of the appeal Mr. B. Hossain, learned Advocate-on-Record
for the appellants has reiterated the considerable force in his submissions. The
impugned judgment of the High Court Division is not acceptable on all accounts as submitted by Mr. B. Hossain.
8. Mr. A.K.M. Shahidul Huq, learned Advocate-on-Record appearing for the respondent has however drawn our attention to ground No. II of the Concise statement filed on behalf of the respondent which is as follows: “II. For that since the defendant No.2 has
since been retired and ceased to be the Secretary, Ministry of Law the plaintiff-
respondent now finds no likelihood of biased attitude of any court subordinate to the High Court Division and as such the appeal may be allowed with a direction to court below to complete the trial of Money Suit No. 48 of 1994 within 6(six) months and with a further direction to the appellants to file written statement within 30 days.”
9. In view of the aforesaid submission of the respondent himself we do not think that it is
necessary now that the suit should be tried by the High Court Division. It should be tried by the trial Court in the usual process.
10. In the result, the appeal is allowed without any order as to costs.
Source: IV ADC (2007), 329