Appellate Division Cases
(Civil)
PARTIES
Govt. of Bangladesh and another ………………………………….Appellants
-vs-
M. A. Khair Bhuiyan ……………………………………. Respondent
JUSTICE
Moinur Reza Chowdhury C J
Mohammad Fazlul Karim J
Syed J. R.Mudassir Husain J
Abu Sayeed Ahammed J
JUDGEMENT DATED : 4th November 2002.
The Code of Civil Procedure(V of 1908), Section 151:
Administrative Tribunal Rules 1982. Rules 3(5).
Admiistrative Tribunals Act. 1980 (Act VII of 1981)
Mrs. Nurun Nahar Vs. Mahammad Fazlur Rahaman 27 DLR (AD) 103.
30DLR(AD)221.
Whether after finally disposing a matter, a Court or Tribunal can re-open the matter when an allegation of fraud practiced on the Court or Tribunal is brought to its notice (4) Even if there may be an alternative remedy by way of an appeal to this Court, it would not bar the exercise of inherent power under section 151 of the Code of Civil Procedure for ends of justice, for the provisions of the Code though generally meant to serve the ends of justice but in their very nature they can not cover all possible situations and thus the Court has to invoke the inherent jurisdiction to cover up the gap for ends of justice (11)
It is true that the Court passing the order could not review the same unless permitted to do the same but on an appropriate application to meet the situation like the present case, the Court or Tribunal has authority to hold an enquiry into the matter of fraud and forgery in obtaining the order. (12)
Thus the question as to whether the Court was misled by the alleged fraudulent misrepresentation regarding withdrawal of the appeal for non-prosecution could be enquired into by the Tribunal and then decide the issue was the bounden duty of the Tribunal as the later has still the power to recall the order dated 2.11.2000 once it could found that the same was passed on fraudulent misrepresentation or otherwise. Any order passed as such fraudulent, misrepresentation or undue influence etc. has no legal effect and the Court or the Tribunal does not become functus officio with the passing of the order on the basis of fraud, mistake, undue influence or misrepresentation etc which are exfacle void (13)
Civil Appeal No. 263 of 2001
(From the Judgment and Order dated 5th November 2000 passed by the Administrative Appellate Tribunal Appeal No. 46 of 1999).
Mahmudul Islam, Senior Advocate, (Prober Neoz, Advocate with him), instructed by Sufi a Khatun, Advocate-on-Record. For the appellants
T.H. Khan, Senior Advocate, (Azizur Rahman, Advocate with him) instructed by Md. Aft ah Hossain, Advocate-on-Record For the Respondent
JUDGMENT
1. Mohammad Fazlul Karim J: – This appeal by leave granted by this Court is to consider the following grounds; (i) that by a petition dated 5.11.2000 a case of forgery and fraud in filing petition for withdrawal of appeal having been brought to the notice of the Administrative Appellate Tribunal who erred in not holding an enquiry into the allegation upon a view that there is no scope for embarking upon the investigation;
(ii) that a Court or tribunal has always jurisdiction to set aside its order when it is obtained by practicing fraud and the Administrative Appellate Tribunal was in error in taking a contrary view; and (iii) that the petition involves an important question of law of public importance, namely, whether after finally disposing of a matter, a Court or tribunal can re-open the matter when an allegation of fraud practiced on the Court or tribunal is brought.
2. The facts necessary for disposal of the appeal are that respondent while serving as Divisional Officer/Assistant Collector of Customs, Excise and VAT, Comilla Division, Comilla from 3.6.1991 to 16.1.1993 permitted M/s K. Rahman and company to destroy products of soft drink (Coca Cola, Fanta and Sprite as unfit for human consumption and issued destruction certificate along with Superintendent Amanullah and Inspector Anwar Hossain; that subsequently the Inspector Anwar Hossain complained that these products were not unfit for human consumption and there was no destruction of the products. The complaint was enquired on several occasions and the allegation against the respondent was found not correct. An FIR was also lodged, but the police submitted final report; that the National Board of Revenue got further information about foul play and formed Enquiry Board for investigation into the matter. The Enquiry Board visited the place of occurrence, took statement of persons connected in the matter, examined the relevant records and after observing ail necessary formalities submitted report to the effect that the respondent was guilty of misconduct and a departmental proceeding was started.
3. The respondent filed case before the Administrative Tribunal and the Administrative Tribunal allowed the case against which the appellant preferred an appeal before Appellate Administrative Tribunal through their penal lawyer Mr. Md. Motiur Rahman Shah. 2.4.2000 was fixed for filing of written objection, on that date though the said filing lawyer was present but one Mr. Taherul Islam filed power purportedly executed by the Chairman of the National Board of Revenue and moved an application dated 27.07.2000 for withdrawal of the appeal and the appellate Tribunal passed the order dated 02.11.2000 dismissing the appeal for non-prosecution. Accordingly, the filing advocate informed the law officer of the NBR about the disposal of the appeal for non-prosecution, who in his turn informed that the NBR did not engage said Mr. Taherul Islam, Advocate to conduct the case. Accordingly an application was filed for enquiry into the matter but the Administrative Appellate Tribunal rejected the said application holding that there is no scope for such enquiry.
4. Mr. Mahmudul Islam, the learned Counsel appearing for the petitioners submitted that by a petition dated 5.11.2000 case of forgery and fraud in filing the petition for withdrawal of appeal having been brought to the notice of the Tribunal, the Administrative Appellate Tribunal was wrong in not holding an enquiry into the allegation upon a view that there is no scope for embarking upon the investigation. The learned Counsel further submitted that a Court or Tribunal has always jurisdiction to set aside it order when it is obtained by a party by practicing fraud and the Administrative Appellate Tribunal was in error in taking a contrary view. The learned Counsel lastly submitted that the petition involves an important question of law of public importance, namely, whether after finally disposing a matter, a Court or Tribunal can re-open the matter when an allegation of fraud practiced on the Court or Tribunal is brought to its notice.
5. Mr. T.H. Khan, the learned Counsel appearing for the respondents submitted that the petition for restoration was neither signed by the Secretary, Internal Resources Division/Chairmen, NBR nor by any high ranking authorized officer but by the filing lawyer Mr. Matiur Rahman Shah, Advocate himself has made the application without any verification as required under Rule 3(5) of Administrative Tribunal Rules 1982 and as such the said petition for restoration of the appeal was not maintainable. The learned Counsel further submitted that it is an well known concept of law that a statute which creates a Court or Tribunal could expressly vests such Courts or Tribunals with the power to review its own judgment or order and not otherwise and that the Administrative Tribunals Act 1980 (Act VII of 1981) has not conferred the power to review its own judgment or order upon the Tribunals and consequently the Appellate Tribunal was perfectly justified and acted within its legal limits when it rejected the prayer for vacating the final order passed on 02.11.2000 dismissing the appeal for non-prosecution; thus had the Administrative Appellate Tribunal embark upon an investigation of the alleged forgery it would have been clearly an act without jurisdiction. The learned Counsel further submitted that before filing the appeal in the Administrative Appellate Tribunal, the Ministry of Law, Justice and Parliamentary Affairs opined under Memo No. SOL/80Opinion-17/1999-1121 dated 04.03.1999 after examining the records clearly expressing its opinion that no fruitful result will be available, if the appeal is filed, rather it is wastage of time and money. So the withdrawal petition for non-prosecution of appeal signed by the then Secretary, Internal resources Division and Chairman, National Board of Revenue is not unjustified and unwarranted. The learned Counsel lastly submitted that the Administrative Appellate Tribunal has no jurisdiction to set aside its own order when it is satisfied that the appeal has been withdrawn for non-prosecution genuinely and particularly the said order was passed in presence of both the parties while the filing lawyer Mr. Motiur Rahman Shah, Advocate was also present who did not raise any objection at that time.
6. On perusal of the impugned order it appears that the Administrative Appellate Tribunal did not enquire into the matter holding that:”Heard Mr. Shah. The Secretary/Chariman does not himself deny the signature dated (27.7.00) on the power and the petition for non-prosecution and also there is no scope for embarking upon an investigation as to the alleged forgery. Let the petition be kept with the record.”
7. The some total of allegation is that an application for withdrawal of the appeal for non-prosecution fraud has been practiced upon the Court in obtaining an order for non-prosecution which is required to be investigated and the Court in exercise of jurisdiction conferred under section 151 of the Code of Civil Procedure could enquire into the same in order to secure the ends of justice and reference in this regard may-be made in the case of Master Abdul Aziz Vs. Abani Mohan Mukerjee and others reported in 30 DLR (AD) 221. In the said case the High Court recorded an order that the appeal had abated in view of an affidavit and death certificate which were later found to be false, an affidavit denying the death of the respondent was filed stating that there was no question of abatement. The High Court found that the information regarding death of respondent was false and that he is alive and accordingly rejected the application for substitution. This Court with reference to good nos. of decisions of the subcontinent has held that “what has been held in the above cases is that the Court has an inherent power under section 151 of the Code to set aside its order passed under a misapprehension of facts when true facts are brought to light and that the Court has also power under the aforesaid section 151 of the Code to vacate an order obtained by misleading the Court and practicing fraud upon it.”
8. In the case of M. Mazid Vs. Iqbal Bahar Choudhury reported in 5 BLC (AD) 7 the question arose as to whether the judgment-debtor-respondents could seek the remedy by filing an application under section 151 of the Code of Civil Procedure wherein he challenged the execution proceeding itself as illegal and without jurisdiction and prayed for restoration of possessions as an ancillary relief after setting aside the entire execution proceeding. This Court held, inter alia, that “it is found that the modified decree was passed on 22.3.1960 and to avoid the question of limitation a modified decree was again drawn up by the trial Court on 9.8.93 and what is so obvious that it was obtained from the Court by fraudulent means. Even if, it is admitted that a mistake was committed by the executing Court to hold that any error or wrong committed by the Court itself can be corrected in exercise of its jurisdiction under section 151 of the Code of Civil Procedure to secure the ends of justice and/or to prevent the abuse of process of Court.”
9. In the case of Mrs. Nurun Nahar Vs. Mahammad Fazlur Rahman reported in 27 DLR (AD) 103 on a question arose as to whether an appointment of a receiver of a car till disposal of the suit for recovery of a motor car pledged by the plaintiff to the defendant could be made, this Court held, inter alia, that:
“The provision of the Code are ordinarilly meant to serve the ends of justice but it sometimes so happens that they cannot reach all possible circumstances. In order to meet such a situation the inherent jurisdiction of the Court contemplated under section 151 of the Code of Civil Procedure needs be invoked. In this sense the Code is not exhaustive minus section 151 CPC. This section contains residuary powers and expressly authorizes a Court to make such order as it considers necessary even though not specifically provided in the Court, the only condition being that the order is necessary for the ends of justice.”
10. It appears that the date fixed for filing written objection by the respondents was on 2.11.2000 and on that date though Md. Matiur Rahaman Shah, Advocate was present before the Appellate Tribunal but one Tahaml Islam, Advocate filed power purportedly executed by the Chairman, NBR and moved a petition dated 11.10.2000 for withdrawal of the appeal and the Tribunal passed the order on 2.11.2000 dismissing the appeal for nonprosecution. It is also curious to note that the said application was filed on an off date on 11.10.2001 without any intimation to the filing Advocate whereupon NBR filed the present application for enquiry into the matter but the Court refused to hold the same stating that the Chairman did not appear and there is no scope for the same.
11. Thus in the facts and circumstances of the case, even if there may be an alternative remedy by way of an appeal to this Court, it would not bar the exercise of inherent power under section 151 of the Code of Civil Procedure for ends of justice, for the provisions of the Code though generally meant to serve the ends of justice but in their very nature they can not cover all possible situations and thus the Court has to invoke the inherent jurisdiction to cover up the gap for ends of justice.
12. It is true that the Court passing the order could not review the same unless permitted to do the same but on an appropriate application to meet the situation like the present case, the Court or Tribunal has authority to hold an enquiry into thematter of fraud and forgery in obtaining the order. In the case of P. Satyanarayana Vs. Land Reforms Tribunal reported in AIR 1980 AP 149 it has been held that:
“On a conspectus of case law, it become quite evident that a Court or Tribunal can not review its own order or judgment unless this is a statutory provision providing for the same. However, a Court or tribunal has inherent powers to recall order obtained by practicing fraud on it. There is no question of the Court becoming functous officio because it retains the jurisdiction to recall such orders. It inters in a Court or tribunal to review by recalling the orders on grounds of fraud, misrepresentation or other similar grounds.”
13. Thus the question as to whether the Court was misled by the alleged fraudulent misrepresentation regarding withdrawal of the appeal for non-prosecution could be enquired into by the Tribunal and then decide the issue was the bounden duty of the Tribunal as the later has still the power to recall the order dated 2.11.2000 once it could found that the same was passed on fraudulent misrepresentation or otherwise. Any order passed as such fraudulent, misrepresentation or undue influence etc. has no legal effect and the Court or the Tribunal does not become functus officio with the passing of the order on the basis of fraud, mistake, undue influence or misrepresentation etc which are exfacie void.
14. Thus, we are inclined to allow the appeal and set aside the impugned order No. 18 dated 5.11.2000 and propose to remand the case back to the Administrative Appellate Tribunal for disposal of the appeal upon enquiry as to the petition dated 5.11.2000 in accordance with law.
15. Accordingly, the impugned order dated 5.11.2000 is hereby set aside and the case is remanded for disposal of the said application dated 5.11.2000 upon enquiry and to dispose of the appeal in accordance with law.
In the result, the appeal is allowed without any order as to costs.
Ed.
Source : III ADC (2006), 163.