Mr.Justice Nozrul Islam Chowdhury.
Civil Revision No.4786 of 2003.
Arab Bangladesh Bank Ltd.
Md.Salahuddin and others.
……. for the petitioner.
Mr. Md.Ziaul Hoque.
.. for the opposite party No.1.
Heard on:- 03.11.2010.
Judgment on:- 04.11.2010.
This Rule is directed against Order No.24 dated 28.09.2003passed by the Joint District Judge, 2nd Court, Narayanganj in Title Suit No. 31 of 2003, at the instance of the defendant No.1 as petitioner, rejecting an application under Order 7 Rule 11 of the Code of Civil Procedure.
72. Facts, in a nutshell, giving rise to this Rule issued by a Division Bench of this Court and heard by me sitting singly, are that the opposite party No.1 as plaintiff instituted Title Suit No.31 of 2002 in the 2nd Court of Joint District Judge, Narayanganj seeking a decree for two declarations one is that the judgment and preliminary decree dated 21.10.99 and final decree dated 05-09-2000 in Title Suit No.54 of 1998 passed by the Sub-ordinate Judge, now Joint District Judge, Additional Court, Artha Rin Adalat No.1, Dhaka are illegal, collusive , fraudulent and not binding upon the plaintiff. In the said suit petitioner Arab Bangladesh Bank Ltd. was impleaded as defendant No.1 while two others as defendant Nos.2 and 3.
73. The said Title Suit No.54 of 1998 was brought by the petitioner as plaintiff seeking a decree for recovery of loan amounting of Tk.99,68,807.14 impleading the opposite party No.1 and another as defendants and in that suit the opposite party No.2 Mr. Aminuddin was impleaded as defendant No.1 as loanee while the oppsoite party No.1 Md. Salahuddin the plaintiff of the present suit was impleaded as defendant No.2 mortgagor.
74. During pendency of the said Title Suit No.54 of 1998 the defendant No.1 loanee entered appearance contesting the suit while the defendant No.2 the mortgagor i.e the plaintiff of the present suit ( Title Suit No.31 of 2002) did not contest.
75. Eventually, the suit was decreed on contest in preliminary form on 21-10-1999 and the final decree was drawn on 05.09.2000 on contest against the defendant No.1 loanee while exparte against the defendant No.2 mortgagor the plaintiff of the present suit . Thereafter the said final decree dated 05.09.2000 in Title Suit No.54 of 1998 was put to execution in Execution Case No.02 of 2002 by the decree holder Arab Bangladesh Bank Ltd. and during pendency of the said execution case the defendant No.2 mortgagor for the first time entered appearance in the said execution case upon filing an application under Order XX1 Rule 58 of the Code of Civil Procedure praying for stay of the attachment and auction sale of the mortgaged land and lastly on his application filed as aforesaid the defendant No.2 Md.Salahuddin of Title Suit No. 54 of 1998 as plaintiff instituted Title Suit No.31 of 2002 before the Joint District Judge, 2nd Court, Narayanganj seeking two declaration one for setting aside the exparte preliminary decree dated 31-10-99 and the final decree dated 05.09.2000 in Title Suit No.54 of 1998 on the ground of fraud allegedly practised in giving his property in mortgage for obtaining the loan involved in that suit and the other declaration sought for by the plaintiff of Title Suit No.31 of 2002 is that the Memorandum of Deposit of Title Deeds along with Irrevocable General Power of Attorney given for the purpose of obtaining loan involved in Title Suit No.54 of 1998 was forged, fake, collusive and the Power of Attorney bearing No.4950 as illegal, forged and fake and created by false personation.
76. In the aforesaid Title Suit No.31 of 2002 the defendant No.1 Arab Bangladesh Bank Ltd. entered appearance upon filing an application under Order 7 Rule 11 of the Code of Civil Procedure praying for rejection of the plaint stating inter alia that the mortgage involved in Title Suit No.54 of 1998 and the proceedings in that suit is governed by Artha Rin Adalat Ain,1990 and Section 6 of the said Ain is a legal bar in proceeding with Title Suit No.31 of 2002 , therefore, the said suit can not proceed in accordance with law as such the plaint ought to have been rejected . It was also contended in the said application under Order 7 Rule 11 filed by the defendant No.1 Arab Bangladesh Bank Ltd. that Section 7 of the Artha Rin Adalat Ain 1990 provides for an appeal against the judgment and decree in Title Suit No.54 of 1998 though exparte against the defendant No.2 of that suit. The plaintiff of Title Suit No.31 of 2000 had also another remedy namely an application under Order 9 Rule 13 of the Code of Civil Procedure against the exparte decree passed in Title Suit No.54 of 1998 , the said application under Order 7 Rule 11 of the Code of Civil Procedure ( is also available on record) .
77. After hearing the parties the learned Joint District Judge by his Order No.24 dated 28-09-03 rejected the same. As against which the defendant of Title Suit No.31 of 2002 as petitioner obtained the present Rule in Civil Revision No.4786 of 2003.
78. Eventually the said Rule came up for hearing before a Division Bench of this Court consisting of Mr. Justice Sheikh Abdul Awal and Mr.Justice M.Moazzam Husain who upon hearing both sides, delivered two separate judgments on 08-07-2010 of which the one given by Mr.Justice Sheikh Abdul Awal , the Rule was made absolute setting the impugned order dated 28.09.2003( wrongly typed as 2004) while the other judgment delivered by Mr.Justice M.Moazzam Husain the Rule was discharged and the impugned order was affirmed, consequently, the matter was placed before the Hon’ble Chief Justice for an appropriate order whereupon by his order dated 09-08-2010 the Hon’ble Chief Justice placed the matter before me as a Third Judge .Therefore, I am sitting singly with a Division Bench matter for the purpose as aforesaid.
79. I have had the opportunity to go through both the judgments delivered by my brothers as aforesaid. I have also heard Mr.A.S.M.Abdur Razzaque the learned Advocate appearing for the petitioner in support of the judgment whereupon the Rule has been made absolute since he is appearing on behalf of the petitioner of the instant Civil Revision. I have also heard the learned Advocate Mr.Md.Ziaul Hoque in support of the judgment whereby the Rule has been discharged since he is appearing for the opposite party No.1 in the instant Civil Revision.
80. Mr.A.S.M.Abdur Razzaque, the learned Advocate appearing for the petitioner has take me through both the judgments and the materials on record and then submits that the instant suit being Title Suit No.31 of 2002 praying for setting aside an exparte decree passed by an Artha Rin Adalat, is not maintainable particularly in view of Section 6 of Artha Rin Adalat Ain,1990, or in otherwords, said Section 6 or in the alternative Section 20 of Artha Rin Adalat Ain 2003 is a legal bar in proceeding with the instant suit being Title Suit No.31 of 2002 .
81. It is also submitted by the learned Advocate for the petitioner that the plaintiff of Title Suit No.31 of 2002, had two fold remedies against the impugned ex-parte decree such as, he could have brought an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree or in the alternative he could have preferred an appeal as contemplate under Section 7 of the Arthan Rin Adalat Ain,1990 or Section 41 of Arthan Rin Adalat Ain 2003. To fortify his submission the learned Advocate for the petitioner placed reliance in the case of M/s Sekander Jute Bailing Lts.Vs. Sonali Bank and another reported in 18 BLD(AD)268. In support of his submission to the effect that suit to set aside an ex-parte decree passed by Artha Rin Adalat is not maintainable in view of the remedy available under the Artha Rin Adalat Ain itself.
82. The learned Advocate for the petitioner also placed reliance in the case of M.Taqiqullah Sikder Vs. Sonali Bank reported in 59 DLR.695 as also in the case of Delwar Hossain and others Vs.Janata Bank reported in 8 BLC (2003) 411. For the simillar purpose the learned Advocate placed reliance in two other cases of the Appellate Division one is the case of Nur Islam (Md) Vs.Agrni Bank reported in 49 DLR (AD) 135 and the other one is in the case of Bangladesh Shilpa Rin Sangstha Vs. Rahman Textile Mills Ltd. and others reported in 51 DLR(AD) 221.
83. On the other hand, Mr.Md.Ziaul Hoque, the learned Advocate appearing for the opposite party No.1 submits at the out set, drawing my attention to the prayers made in the plaint of Title Suit No.31 of 2002, to the effect that there are infact two fold prayers made in the plaint of Title Suit No.31 of 2002 such as in the first prayer the decree of Title Suit No.54 of 1998has been sought to be set aside but in the other prayer a declaration has been sought to the effect that the registered Power of Attorney and the Memorandum of Deposit of Title Deeds are forged, fabricated and fraudulent transaction, therefore, he submits that so far as Section 6 of Artha Rin Adalat Ain,1990 or for that matter Section 20 of Artha Rin Adalat Ain 2003 can not create any bar in proceeding with Title Suit No.31 of 2000 since Order 7 Rule 11 of the Code of Civil Procedure can not apply in respect of that particular prayer of the suit.
84. In substantiating his submissions the learned Advocate for the opposite party No.1 has placed reliance in the case of Al-Baraka Bank Bangladesh Ltd. Vs. Rena Alam and another reported din 56 DLR.588.
85. The learned Advocate has also placed reliance in an unreported case namely Civil Petition For Leave To Appeal No.738 of 2004arising out of an appeal from the aforesaid judgment reported in 56 DLR case thereby the Leave Petition was rejected affirming the judgment of the High Court Division.
86. In support of the submissions to the effect that a plaint can not be rejected in part under Order 7 Rule 11 of the Code of Civil Procedure. The learned Advocate placed reliance in the case of Khandaker Abul Hossain Vs. Bangladesh reported in 54 DLR 467 and the case of Roop Lal Sathi Vs. Nachhattar Singh reported in AIR 1982 SC 1559.
87. Heard the learned Advocates from both sides, perused the two judgments delivered by my brothers including other materials relevant for the purpose wherefrom it transpires that the decision in the instant Rule, revolves round a precise question as to whether in view of the provisions in Section 6 of Artha Rin Adalat Ain,1990 or for that matter Section 20 of Artha Rin Adalat Ain,2003 creates a legal bar in proceeding with a suit like Title Suit No.31 of 2002 for setting aside an exparte decree passed by a Artha Rin Adalat granting decree in favour of the plaintiff against the loanee and the mortgagor thereof particularly with reference to Order 7 Rule 11 of the Code of Civil Procedure.
88. With a view to arrive at a correct decision I feel it proper to quote Order 7 Rule 11 of the Code of Civil Procedure at the out set 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 plaintiff, 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 insufficient stamp 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.
(Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp paper shall not exceed twenty one days ).
89. From a plain reading of the aforesaid provision of law I find that Clause (d) of Rule 11 of Order 7 is relevant for our purpose. Since, the defendant claims that the said suit is barred under the specific provision of law as contemplated under Section 6 of Arthan Rin Adalat Ain,1990 or Section 20 of the Arthan Rin Adalat Ain,2003 , therefore, I also feel it necessary to quote the aforesaid two provisions of law of which Section 6 of Artha Rin Adalat Ain 1990 reads as follows :-
6z AbÑTe Bc¡mal ¢pÜ¡¿¹ Q¨s¡¿¹z-3[(1)] d¡l¡ 7 Hl ¢hd¡e p¡fr, AbÑTe Bc¡mal L¡kÑd¡l¡, Bcn, l¡u J ¢X¢H² pÇfLÑ ®L¡e Bc¡ma h¡ AeÉ ®L¡e La«Ñfrl ¢eLV fËnÀ Eš¡fe Ll¡ k¡Ch e¡z
Section 20 of Artha Rin Adalat Ain 2003 reads as follows :-
41z (1) j¡jm¡l ®L¡e fr, ®L¡e AbÑTe Bc¡mal Bcn h¡ ¢XH²£ à¡l¡ pwr¥ë qCm, k¢c ¢XH²£L«a V¡L¡l f¢lj¡e 50(feÄ·¡n) mr V¡L¡ Afr¡ A¢dL qu, a¡q¡ qCm Ef-d¡l¡ (2) Hl ¢hd¡e p¡fr, 1 [flhaÑ£ 60(o¡V) ¢chpl ]jdÉ q¡CL¡VÑ ¢hi¡N, Hhw k¢c ¢XH²£L«a V¡L¡l f¢lj¡e 50(feÄ·¡n) mr V¡L¡ Abh¡ acAfr¡ Lj qu, 2[a¡q¡ qCm flhaÑ£ 30(¢Hn) ¢chpl jdÉ ®Sm¡ SS Bc¡ma Bf£m L¢la f¡¢lhez]
Turning to the judgment referred by the learned Advocate for the petitioner Mr.A.S.M.Abdur Razzaquwe and from a plain reading of the case of M/s Sikander Jute Bailing Ltd. Vs. Sonali Bank and other reported in 18 BLD (AD)268 we find that a similar question arose in the said case and after consideration, their lordships were of the opinion that though a separate suit was brought on the ground of fraud and collusion in obtaining an ex-parte decree from the Artha Rin Adalat yet the same was not maintainable in view of the remedy available in the said Ain, therefore, the decision given by the learned Subordinate Judge rejecting the plaint and approved by the High Court Division in revision, there is no ground for interference and the Leave Petition was dismissed.
90. The other case being M. Tariqullah Sikder Vs. Sonali Bank reported in 56 DLR(2007)695 also provides similar feature to the effect that provision of Section 6 of Artha Rin Adalat Ain 1990 bars instituting of separate suit to set aside expert decree passed by Artha Rin Adalat. Only available scope for setting aside ex parte decree passed by Artha Rin Adalat in Artha Rin case is to file miscellaneous case under Order IX rule 13 of the Code of Civil Procedure by deposit of 50% of decreetal amount or in the alternative in the appeal as contemplated under the said Ain.
91. Turning to the next case relied upon by the learned Advocate for the petitioner namely Delwar Hossain Vs. Janata Bank and others reported in 8 BLC(2003) 411 we find that a Division Bench of this Court dealing with a similar case were of the opinion as under :-
“Under the Ain of 1990 two remedies were available to judgment debtor plaintiff- appellant. One, a petition under Order IX rule 13 of the Code of Civil Procedure and the other, an appeal before the High Court Division. In both the cases deposit of half of the decreetal amount was a positive requirement and mandate. The plaintiff-appellants without taking the remedies available to them challenged the rightness of the judgment and decree in a suit before a court of ordinary civil jurisdiction. The suit,thus is eminently barred by law justifying rejection of plaint.”
92. Going through the judgment reported in 49 DLR (AD) 135 and 51 DLR(AD) 221 I find that those decisions have indirect bearing in the present suit, therefore, we need not enter into the facts of those cases.
93. The last case relied by the learned Advocate for the petitioner namely Monir Ahmed Khan Vs. Md.Bazlu Miah and others reported in BLD 8 (1988) 241 we find a similar barring provision was available under Section 26 of the Local Government ( Union Pariashad ) Ordinance 1983 , therefore, a suit was held to be not maintainable and the Election Tribunal was found to be the proper place for raising any objection against any grievance and a Division Bench of this court also held that where there is implied bar against the institution of the civil suit, the Civil Court can not entertain such a suit.
94. On the other hand, the learned Advocate for the opposite party No.1 referred to a case of Rena Alam and others Vs. The Oriental Bank Ltd. reported in 56 DLR 588 and two other decisions namely Khandaker Abul Hossain Vs. Bangladesh reported in 54 DLR 467 and Roop Lal Sathi Vs. Nachhattar Singh reported in AIR 1982 SC 1559.
95. To substantiate his submissions that plaint can not be rejected straight way in part and Order VII rule 11 of the Code of Civil Procedure can not be applied in piecemeal.
96. Elaborating his submissions the learned Advocate has drawn our attention to the prayer portion of the plaint of Title Suit No.31 of 2002. On a close scrutiny of the prayer portion and the averments made in the plaint I find that the plaintiff as a matter of fact prayed for two fold declaration first is that the exparte decree obtained in Title Suit No.54 of 1998 is not binding upon him and a declaration that the registered Power of Attorney and Memo of Deposit of Title Deeds were forged, fabricated and false ones.
97. Going through the judgment referred to by the learned Advocate for the opposite party No.1 particularly the one reported in 56 DLR 588 I find that in the instant case both the prayers made in the plaint could have been decided by the Adalat itself. Had there been an appeal against the same, under Section 7 of the Artha Rin Adalat Ain 1990 or Section 41 of the Artha Rin Adalat Ain,2003 , therefore, the question of absence of jurisdiction as contemplated in the case reported in 56 DLR is totally absent as such not applicable. The two other decisions relied upon by the opposite party, are also for the same reason namely both the prayer made in the plaint in Title Suit No.31 of 2002 are well within the jurisdiction or competence of Artha Rin Court established under the Arthan Rin Adalat Ain 1990 and 2003 , therefore, none of the aforesaid two cases can be of any help for the opposite party No.1, on the other hand, going through the aforesaid judgment referred to by the learned Advocate for the petitioner I find that in view of the position that section 6 of the Arthan Rin Adalat Ain , 1990 or for that matter Section 20 of Ain,2003 create a bar in proceeding with a subsequent suit making a prayer for setting aside an ex-parte decree even on the ground of fraud or even with a prayer for another declaration for the Power of Attorney and Memorandum of Deposit of Title Documents as forged, fabricated and false rather the only remedy available for the opposite party No.l was to go for an application under Order IX Rule 13 of the Code of Civil Procedure or an appeal under Section 7 or Section 41 of the Artha Rin Adalat Ain,1990 and 2003 respectively, therefore, I find that the submissions made by the learned Advocate for the petitioner has got substance , as such accepted.
In view what has been stated above, I am unable to persuaded myself in agreeing with the judgment delivered by learned brother Moazzam Husain j rather I am inclined to agree with the judgment passed by my brother Sheikh Abdul Awal j, therefore, in my opinion the Rule is hereby made absolute and the impugned judgment and order No.24 dated 28-09-2003 passed by the learned Joint District Judge,2nd Court, Narayanganj is hereby set aside and the plaint of Title Suit No.31 of 2002 is rejected.