Mr. Justice Sheikh Abdul Awal.
Mr. Justice M. Moazzam Husain
Civil Revision No.4786 of 2003.
Arab Bangladesh Bank Ltd.
Mr. Md. Salauddin and others.
…………………… Plaintiff- opposite parties.
Mr. A. S. M. Abdur Razzaque with
Mr. Fahad Mahmood Khan and
Mr. Mushfiqul Haque Khan, Advocates,
.…For the petitioner.
Mr. Enayet Hussain Khan with
Mr.Md.Ziaul Hoque, Advocates.
… For the opposite party No.1.
Heard on 7.7.2010 and Judgment on 8.7.2010.
Sheikh Abdul Awal, J:
This Rule was issued calling upon the opposite party No.1 to show cause as to why the Order No.24 dated 28.9.2003 passed by the learned Joint District Judge, 2nd Court, Narayanganj in Title Suit No.31 of 2002 should not be set-aside.
Material facts of the case as necessary for the disposal of the Rule are that the petitioner, Arab Bangladesh Bank Ltd. as plaintiff filed Title Suit No.27 of 1995 in the Court of learned Joint District Judge and Artha Rin Adalat No.3,Dhakaagainst the defendant-opposite parties for recovery of its outstanding dues by selling the mortgaged property. Later on, the said suit was re-numbered on transfer as Title Suit No.54 of 1998 in the Court of learned Joint District Judge and Additional Artha Rin Adalat No.1,Dhaka. The present-defendant opposite party No.2 contested the suit by filing written statement denying all the material allegations of the plaint. The learned Judge of the Artha Rin Adalat No.1, Dhaka after hearing the parties and on considering the materials on record decreed the suit by its judgment and decree dated 21.10.1999 (preliminary decree was signed on 31.10.1999 and final decree was drawn up on 5.9.2000). After obtaining the decree the petitioner as decree-holder-bank put the decree into execution by filing Title Execution Case No.2 of 2002 on 12.01.2002 before the learned Joint District Judge and Additional Artha Rin Adalat No.1,Dhaka.
In this background of the case the judgment-debtor ( opposite party No. 1) instituted Title Suit No.31 of 2002 in the Court of 2nd Joint District Judge, Narayangonj against the defendants including decree holder, Al-Baraka Bank Ltd. praying a decree declaring that the judgment and decree dated 21.10.1999 ( preliminary decree singed on 31.10.1999 and final decree drawn up on 5.9.2000) passed in Title Suit No.54 of 1998 by the Additional Artha Rin Adalat No.1, Dhaka against the plaintiff (hereinafter called as “the opposite party No. 1”) is illegal, irregular, collusive and not binding upon him and also declaring that irrevocable power of attorney, memorandum of deposit of title deeds as set forth in the schedule “Kha” in connection with the property as described in schedule “Ka” of the plaint are illegal, forged, collusive, made by false personation and of no legal effect. After filing of the said suit the present opposite party No.1 as applicant filed Misc. Case No.39 of 2002 under Order XXI Rule 58 of the Code of Civil Procedure before the learned Joint District Judge and Additional Artha Rin Adalat No.1, Dhaka with a prayer for stay of the attachment and auction sale of the scheduled property of the Title Execution Case No.02 of 2002. The present petitioner-Bank has appeared in the said miscellaneous case and the same is still pending for hearing.
The defendant-petitioner, Al-Baraka Bank Ltd. (hereinafter called as “the petitioner”) appeared in the said Title Suit No.31 of 2002 and filed an application under Order VII Rule 11 read with section 151 of the Code of Civil Procedure for rejection of the plaint stating that the judgment debtor as plaintiff instituted the suit against the defendant bank and others prying a decree declaring that judgment and decree dated 21.10.1999 (preliminary decree singed on 31.10.1999 and final decree drawn on 05.09.2000) passed by the Artha Rin Adalat No.1, Dhaka in Title Suit No. 54 of 1998 against him (opposite party No.1) is illegal, irregular, collusive, fraudulent and not binding upon the plaintiff and Irrevocable General Power of Attorney and Memorandum of Deposit of Title Deeds as set forth in the schedule “ka” of the plaint are illegal, forged, fake collusive and made by false personation and of no legal effect which is not only misconceived and also clearly barred by law because the Artha Rin Adalat Ain being a special legislation setting up special Court the remedies will follow as provided therein and there being specific remedy in the statute for filing appeal against the judgment and decree of the Artha Rin Adalat. Moreover, as per the express provisions of section 6 of the Artha Rin Adalat Ain, 1990 the decision or judgment and decree of the Artha Rin Adalat is final and the same cannot be questioned in any Court or by any authority except under the provisions of Artha Rin Adalat Ain.
The learned Joint District Judge, 2nd Court, Narayangonj upon hearing the application under Order VII Rule 11 read with section 151 of the Code of Civil Procedure by its order dated 28.9.2003 rejected the application for rejection of the plaint holding that the contents of the plaint are related with some disputed deeds and judgment and decree which can be decided only at the trial on taking evidence.
Being aggrieved by the aforesaid order the defendant-Arab Bangladesh Bank Ltd. as petitioner moved this Court and obtained the present Rule.
Mr. A. S. M. Abdur Razzaque, the learned Advocate appearing for the defendant-petitioner in the course of argument after placing the impugned order and relevant materials on record including the application for rejection of the plaint submits that the learned Joint District Judge ought to have held that the civil Court has no jurisdiction to entertain a suit challenging the judgment and decree passed by the Artha Rin Adalat in view of the express provision of the Artha Rin Adalat Ain, 1990 and as such the suit is impliedly barred that law and by holding otherwise he has committed an illegality resulting in an error in the decision occasioning failure of justice.
Mr. Razzaque, next submits that the learned Joint District Judge having failed to appreciate the simple question of law that is if any party is aggrieved by judgment and decree of the Artha Rin Adalat he may prefer appeal against the same as per specific provisions of the Artha Rin Adalat Ain and in case of ex-parte decree, the judgment debtor may prefer an application under section 6(2) of the Artha Rin Adalat Ain, 1990 or under section 19 of the Artha Rin Adalat Ain, 2003 for setting aside the ex-parte decree upon deposit of certain amount as per the said provisions of law and in that view of the matter the judgment-debtor has no legal scope to file separate suit to challenge the judgment and decree passed by the Artha Rin Adalat, as such the impugned order No.24 dated 28.9.2003 is liable to be set-aside.
Mr. Abdur Razzaque, further submits that the learned Joint District Judge most illegally giving a go by to the important question of law that the judgment-debtor has no legal scope to file separate suit to challenge the judgment and decree passed by the Artha Rin Adalat as per provisions of section 6(1) of the Artha Rin Adalat Ain, 1990 mechanically held that the plaintiff sought a relief in the form of declaration, there is no bar to proceed with the suit and with that observation he rejected the petition for rejection of the plaint in a summary manner.
Mr. Razzaque, finally upon referring to the relevant provisions of both old and new Ain namely, Artha Rin Adalat Ain, 1990 and Artha Rin Adalat Ain, 2003 submits with force that the impugned order is perverse being contrary to the express provisions of section 6 of the Artha Rin Adalat Ain, 1990 or section 19 and 20 of the Artha Rin Adalat Ain, 2003 and as such the impugned order is liable to be struck down. The learned Advocate in support of his submission has relied on the decisions reported in 51DLR(AD) 221 and 8 BLD 241.
On the other hand, Mr. Md. Ziaul Hoque, the learned Advocate appearing for the plaintiff-opposite party No.1 supports the impugned order which was according to him just, correct and proper. Drawing our attention to the contents of the plaint Mr. Hoque, submits that in the suit the plaintiff not only challenged the judgment and decree of the Artha Rin Adalat also challenged the irrevocable power of attorney, memorandum of deposit of title deeds as produced or used before the Artha Rin Adalat in Title Suit No.31 of 2002 and without taking evidence it is not at all possible to decide whether the irrevocable power of attorney is genuine or not and in that view of the matter the question of rejection of the plaint does not arise at all. He further points out that it is apparent from the judgment and decree dated 21.10.1999 that the learned Judge of the Adalat most illegally decreed the suit ex-party against the petitioner without considering whether the power of attorney or mortgaged deed was executed by the present plaintiff-opposite party or those documents were genuine or not whatsoever. The learned Advocate to fortify his argument relied on the decisions reported in 15 BLD(AD) 35, 56 DLR-588 and unreported decision dated 05.07.2004 passed in Civil Petition For Leave To Appeal No. 738 of 2004.
These are the points which were argued by the learned Advocates for the respective parties. Now, to deal with the contentions raised by the parties before us it would be convenient for us to decide first of all the question of maintainability of the suit preferred by the judgment-debtor challenging the judgment and decree dated 21.10.1999 passed by the Artha Rin Adalat in Title Suit No. 54 of 1998. In order to decide this point the prayer portions of the plaint are required to be referred to for having a better view in the dispute in question. Reliefs ‘Ka’ and ‘Kha’ reads as follows:
“K) XvKv ‡Rjvi 1 bs AwZwi³ A_© FY Av`vj‡Zi eÜKxt ‡`t 54/98 bs †gvKÏgvq cÖPvwiZ weMZ 21/10/99 Bs Zvwi‡Li ivq 31/10/99 Bs Zvwi‡Li cÖv_wgK wWµx Ges 5/9/2000 Bs Zvwi‡Li PyovšÍ wWµx ev`xi cÖwZ A‰ea, †hvMmvRmx, ZÂKZvgyjK, AKvh©¨Ki Ges cÖ‡hvR¨ b‡n g‡g© †Nvlbvi wWµx w`‡Z;
L) AviRxi ‘K’ ZcwQj ewb©Z m¤cwË m¤c‡K© ‘L’ ZcwQj ewb©Z Ai`‡hvM¨ Avg‡gv³vi bvgv `wjj Ges †g‡gv‡iÛvg Ae UvB‡Uj wWWm `wjj †eÐAvBbx, Rvj, fyqv, ZÂKZvc~b©, †hvMmvRmx, AKvh©¨Ki Ges wgQ cvim‡bkb Øviv m„wRZ A‰ea `wjj g‡g© †Nvlbvi wWµx w`‡Z|”
From a plane reading of the above quoted prayer portions together with the averments of the plaint, it appears that the present suit was instituted in the Court of Joint District Judge, 2nd Court, Narayanganj praying a decree declaring that the judgment and decree dated 21.10.1999 passed in Title Suit No.54 of 1998 by the Additional Artha Rin Adalat No.1, Dhaka against the plaintiff-opposite party is illegal, irregular, collusive and not binding upon him and also declaring that irrevocable power of attorney, memorandum of deposit of title deeds as set forth in the schedule “Kha” in connection with the property as described in schedule “Ka” of the plaint are illegal, forged, collusive and made by false personation and of no legal effect.
Let us look at the relevant provisions of both the old and new Artha Rin Adalat Ain.
Section 6 of the Artha Rin Adalat Ain, 1990 reads as follows:
“6| A_© FY Av`vj‡Zi wm×všÍ PyovšÍ| (1) aviv 7 Gi weavb mv‡c‡¶, A_© FY Av`vj‡Zi Kvh©¨aviv, Av‡`k, ivq I wWµx m¤c‡K© †Kvb Av`vjZ ev Ab¨ †Kvb KZ©„c‡¶i wbKU cÖkœ DÌvcb Kiv hvB‡e bv|Ô
(2) DcÐaviv (1) G hvnv wKQyB _vKzK bv †Kb, †Kvb A_© FY Av`vjZ KZ©„K weev`xi wei“‡× cÖ`Ë †Kvb GKZidv wWµx i` Kivi Rb¨ weev`x Code of Civil Procedure, 1908 (Act V of 1903) Gi Order IX Gi rule 13 Gi weavb †gvZv‡eK Av`vj‡Z `iLv¯Í Kwi‡Z Pvwn‡j Zvnv‡K Zvnvi wei“‡× wWµxK…Z A‡_©i AšÍZt A‡a©K A_© ev Dnvi mgcwigvb A‡_©i e¨vsK RvgvbZ `iLv‡¯Íi mwnZ Av`vj‡Z Rgv Kwi‡Z nB‡e, Ges D³i“c Rgv Kiv bv nB‡j Zvnvi `iLv¯Í Mªnb †hvM¨ nB‡e bv|”
Similar provision has also been provided in section 19 and 20 of the Artha Rin Adalat Ain, 2003 which read as follows:
“19| GKZidv wWµx m¤úwK©Z weavb|Ð(1) gvgvjvi ïbvbxi Rb¨ avh© †Kvb Zvwi‡L weev`x Av`vj‡Z Abycw¯’Z _vwK‡j, wKsev gvgjv ïbvbxi Rb¨ M„nxZ nBevi ci WvwKqv weev`x‡K Dcw¯’Z cvIqv bv †M‡j, Av`vjZ gvgjv GKZidv m~‡Î wb®úwË Kwi‡e|
(2) †Kvb gvgjv GKZidv m~‡Î wWµx nB‡j, weev`x D³ GKZidv wWµxi Zvwi‡Li A_ev D³ GKZidv wWµx m¤ú‡K© AeMZ nBevi 30 (wÎk) w`e‡mi g‡a¨, DcÐaviv (3) Gi weavb mv‡c‡¶, D³ GKZidv wWµx i‡`i Rb¨ `iLv¯Í Kwi‡Z cvwi‡eb|
(3) DcÐaviv (2) Gi weavb Abyhvqx `iLv¯Í `vwL‡ji †¶‡Î weev`x‡K D³ `iLv¯Í `vwL‡ji Zvwi‡Li cieZ©x 15 (c‡bi) w`e‡mi g‡a¨ wWµxK…Z A‡_©i 10% Gi mgcwigvb UvKv ev`xi `vexi †mB cwigv‡Yi Rb¨ m¦xK…wZm¦i“c bM` mswkó Avw_©K cÖwZôv‡b, A_ev RvgvbZ m¦i“c e¨vsK WªvdU, †cÐAW©vi ev Ab¨ †Kvb cÖKvi bM`vqb‡hvM¨ wewb‡gq `wjj (Negotiable Instrument) AvKv‡i RvgvbZ wnmv‡e Av`vj‡Z Rgv`vb Kwi‡Z nB‡e|
Section 20 of the Artha Rin Adalat Ain, 2003 reads as follows:
“20| A_© FY Av`vj‡Zi Av‡`‡ki P~ovšÍZv|Ð GB AvB‡bi weavb e¨wZ‡i‡K, †Kvb Av`vjZ ev KZ©„c‡¶i wbKU A_© FY Av`vj‡Z wePvivaxb †Kvb Kvh©aviv ev Dnvi †Kvb Av‡`k, ivq ev wWµxi wel‡q †Kvb cÖkœ DÌvcb Kiv hvB‡e bv, Ges GB AvB‡bi weavb‡K D‡c¶v Kwiqv †Kvb Av`vjZ ev KZ©„c‡¶i wbKU Av‡e`b Kwiqv †Kvb cÖwZKvi `vex ev cÖv_©bv Kiv nB‡j, Hi“c Av‡e`b †Kvb Av`vjZ ev KZ©„c¶ Mªvn¨ Kwi‡e bv|“
18. From a plane reading of the above quoted provisions of the Artha Rin Adalat Ain, it appears that except the provisions of this Act, no question shall be raised before any court or authority about any pending proceeding in the Artha Rin Adalat, or its order, judgment or decree, and if any relief is claimed or prayed before any Court or authority ignoring the provisions of this Act, no Court or authority shall accept any such prayer the judgment or decree of the Artha Rin Adalat is final and the same cannot be questioned in any other Court under any separate proceeding. If any party is aggrieved by judgment and decree of the Artha Rin Adalat he may prefer appeal against the same as per specific provisions of the Artha Rin Adalat Ain and in case of ex-parte decree, the judgment debtor may prefer an application under section 19 the of Artha Rin Adalat Ain, 2003 for setting-aside the ex-parte decree upon deposit of certain amount as per the said provisions of law. Therefore, I am led to hold that the suit filed by the plaintiff-opposite party No.1 challenging the judgment and decree passed by the Artha Rin Adalat and some mortgaged deeds as produced / used in the suit before the Artha Rin Adalat was impliedly barred by specific provisions of both old and new Artha Rin Adalat Ain. So, the suit is not maintainable.
19. Now, coming to consider the question how far the learned Joint District Judge was justified in passing the impugned order. The learned Joint District Judge however rejected the application filed by the defendant-Bank under Order VII Rule 11 of the Code of Civil Procedure stating as follows:
“Dfqc‡¶i weÁ †KŠïjx‡K ïwbjvg| ev`x AÎ gvgjvwU ‡Nvlbvi `vex‡Z Avbqb Kwiqv‡Qb Ges KwZcq `wjj Ges gvgjvi ivq I wWµx m¤c‡K© cÖwZKvi cÖv_©bv Kwiqv AÎ gvgjvwU `v‡qi Kivq D³ welqwU mv¶x cÖgvb Ges `wjjcÎ wePvi we‡klb Kwievi AeKvk _vKvq AÎ †ó‡R AviRx evwZ‡ji cÖv_©bv gÄyi Kwievi †Kvb Kvib bvB weavq AviRx evwZ‡ji cÖv_©bv †`vZidv m~‡Î bvgÄyi Kiv †Mj| ”
20. From a reading of the above quoted impugned order, I am surprise to see that the learned Joint District Judge without assigning any reason in respect of the important question of law involved in the matter that the judgment debtor has no legal scope to file separate suit to challenge the judgment and decree passed by the Artha Rin Adalat as per provisions of section 6(1) of the Artha Rin Adalat Ain, 1990 raised before him mechanically held that the plaintiff sought a relief in the form of declaration, there is no bar to proceed with the suit and with that observation he rejected the petition under Order VII, Rule 11 of the Code of Civil Procedure in a summary manner. This finding of the trial Court does not reflect the true position of law which is plainly misconceived, incompetent and contrary to the provisions of the Artha Rin Adalat Ain. The learned Joint District Judge ought to have held that the subject matter of the suit comes within the purview of the special law namely the Artha Rin Adalat Ain, 1990 and as such the suit is impliedly barred by that law.
21. In this connection I must quote a passage from a case of Nur Islam (Md) Vs Agroni Bank reported in 49 DLR (AD) 135 for having a better view in the dispute in question which reads as follows:
Mr. AKM Nurun Nabi Khan, learned Advocate appearing for the petitioner, contends that when the petitioner-defendant challenged the exparte decree on the ground of fraud his application under section 151 CPC is quite maintainable. We do not find any substance in this contention, for the Artha Rin Adalat Act specifically provides for only two remedies against an exparte decree. It is either by an application or by an appeal; but in both the cases deposit of 50% of decretal amount is necessary. To avoid this deposit, it appears, the petitioner has sought a short-cut by invoking section 151 CPC which is not applicable in such a situation. The application under section 151 is found to have been rightly dismissed.
( The under linings are mine)
22. On consideration of the matter vis-a-vis the above quoted decision of our Apex Court, I am inclined to hold that the learned Joint District Judge seriously erred in law in passing the impugned order without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the subject and the same has resulted in an error in the impugned decision occasioning failure of justice. In any event this is not a case in which the Court of Joint District Judge or the Court of District Judge established under the Civil Court Acts has jurisdiction to grant the relief asked for by the plaintiff.
23. Mr. Ziaul Haque, the learned Advocate at the fag end of the hearing however, agitated a point that the Artha Rin Adalat has/had no jurisdiction to decide whether the documents namely power of attorney and memorandum of deposit of title deeds as set forth in the schedule “Kha” in connection with the property as described in schedule “Ka” of the plaint were genuine or not and in that view of the matter no such issue was framed in the Artha Rin Suit and as such without taking evidence there is no scope to resolve this dispute.
24. In reply, Mr. Razzaque, the learned Advocate referring paragraph No.3 of the supplementary affidavit submits that the plaintiff-opposite party No.1 never appeared before the Court with clean hands inasmuch as it is apparent from the record that the opposite party No.2 availed overdraft facility of Tk. 20,00,000/- vide sanction advise No.AB/MJ/CR/1237 dated 10.8.1986 from the petitioner-Bank and as security of the said credit facilities the plaintiff-opposite party No.1 mortgaged his land properties through executing memorandum of deposit of title deeds on 13.10.1986, an irrevocable general power of attorney on 9.10.1986 and the plaintiff-opposite party No.1 submitted all original title deeds of the mortgaged properties to the petitioner-defendant-Bank and in that view of the matter it does not lie in the mouth of the plaintiff-opposite party No.1 that the defendant-opposite party No.2 on practicing fraud used his original deeds beyond his knowledge. He adds that the Artha Rin Adalat Ain is a special statute, there is specific provision for the aggrieved party to prefer appeal against the judgment and decree of the Artha Rin Adalat and in case of ex-party decree,the judgment-debtor may prefer an application under section 6(2) of the Artha Rin Adalat Ain, 1990 or under section 19 of the Artha Rin Adalat Ain, 2003 for setting-aside ex-parte decree upon depositing of certain amount as per provision of the said law.
25. On an overall consideration of the facts, circumstances of the case and materials on record, my view is therefore, that Mr. Razzaque, the learned Advocate for the petitioner-Bank is not wrong in submitting that the plaintiff-opposite party No.1 has never approached before the Court with clean hand. As already noticed the plaintiff-opposite party No.1 submitted his all original title deeds of the mortgaged properties to the petitioner-defendant-Bank as security of the credit facilities.
26. The submissions of Mr. Ziaul Haque, the learned Advocate for the opposite party No.1 are of no substance. The decisions cited by him namely the decisions reported in 15 BLD(AD) 35, 56 DLR 588 and unreported judgment of the Appellate Division passed in C.P.L.A. No.738 of 2004 have no manner of application in the facts and circumstances of the case inasmuch as facts of the case in hand are distinguishable from the facts of those cited cases.
27. In any view of the matter, having regard to the fact as aforesaid, this rule must succeed.
28. In the result, the Rule is made absolute without any order as to costs. The impugned order dated 28.9.2004 passed by the learned Joint District Judge, 2nd Court, Narayangonj in Title Suit No.31 of 2002 is hereby set-aside and the plaint of the suit is rejected under Order VII, rule 11 of the Code of Civil Procedure.
Sheikh Abdul Awal, J
29. I have had the privilege of hearing the judgment just delivered by my learned brother Sheikh Abdul Awal, J. With great respect to his deliberations I regret, could not persuade myself to agree with the view taken by his Lordship in deciding this case.
30. The broader facts of the case are already on records. I would only refer to those which would come up in the way of reasoning and decision of my own.
31. Here in this case an order passed by the learned Joint District Judge, 2nd Court, Narayanganj, in Title Suit No. 31 of 2002 (brought by OP No.1) rejecting an application under Order VII Rule II of the Code of Civil Procedure, shortly, “the Code” filed by the defendant-petitioner is impugned before us. More precisely, Arab Babgladesh Bank Ltd. as defendant No.1, sought to challenge before us the impugned order, for that matter maintainability of the suit of the opposite party No.1, in all, on four grounds which essentially boil down to one: that the decree sought to be challenged in the suit is one passed by an Artha Rin Adalat against the opposite party No.1 as a third party mortgagor and others. A suit by a judgment-debtor in an Artha Rin suit challenging the decree is barred by express provision of Artha Rin Adalat Ain, 2003 (briefly “the Ain”) Subsequently a supplementary affidavit is filed by the petitioner-bank wherein the facts and law are more fully stated in support of its point. In the supplementary affidavit specific sections ie, sections 6 of the Artha Rin Adalat Ain, 1990 and section 20 of the Artha Rin Adalat Ain, 2003 are quoted which on the face of them are ouster or exclusionary clauses, as they are so called. The ouster clauses are couched in similar languages and the one ie, section 20 of the Ain of 2003 seems to be absolute in nature which creates a complete bar on seeking relief before any court or authority impugning any proceeding pending in , order, judgment or decree passed by an Artha Rin Adalat.
32. It appears from records that the judgment and decree dated 21.10.1999 purportedly challenged in the instant suit was passed by the court of Joint District Judge and Additional Artha Rin Adalat No.1, Dhaka, in Title Suit No. 54 of 1998 (arising out of TS No.27 of 1995) wherein the present opposite party No. 1 was impleaded as defendant No. 2. The sole case against the defendant 2 (OP No.1 herein) was that he mortgaged the land described in schedule Ka of his plaint as collateral security against an overdraft facility of Tk. 20, 0000/ availed by the present opposite party No. 2 (defendant No.1 before the Adalat) from the petitioner bank. To that effect he (OP-1) deposited the original title deeds under a memorandum of deposit of title deeds signed on 13.10.1986 and executed an irrevocable power of Attorney on 09.10.1986 in favour of the bank.
33. Admittedly the present opposite party No.1 did not appear in the suit tried by the Artha Rin Adalat. Therefore, the decree of the Artha Rin Adalat was passed ex-parte against him. The Artha Rin decree was put to execution giving rise to Title Execution Case No. 2 of 2002 for realization of the decretal amount which stood at an amount of one crore and odd. Opposite party No. 1, however, initially took an attempt to retain his possession and get the attachment of his property vacated by filing Miscellaneous Case No.39 of 2002. But finally chose to file the instant suit, Title Suit No. 31 of 2002, in the 2nd Court of Joint District Judge, Narayanganj, as claimed by the petitioner, during pendency of the aforesaid Miscellaneous Case.
34. In the instant suit opposite party No. 1 as plaintiff sought declaration, inter alia, that the judgment and decree dated 21.10.1999 passed by the Joint District Judge and Additional Artha Rin Adalat No.1, Dhaka, in Title Suit No. 54 of 1998 is illegal, void, collusive, fraudulent, ineffective and not binding upon him; and that the irrevocable power of attorney and the memorandum of deposit of title deeds standing in his name purportedly creating equitable mortgage of his property are not executed by him. Those were created beyond his knowledge by way of fraud, forgery and impersonation, in collusion with bank officials.
35. A portion of the plaint reads as follows:
Òev`x 1bs weev`x e¨vsK eive‡i Zckxjewb©Z m¤úwË g~j `wjjvw` 1bs weev`x -e¨vsK eive‡i Rgv cÖ`vb K‡i bvB ev eÜKx †`s 54/98 bs †gvKÏgvi AvwR© ewb©Z 13/10/86 Bs Zvwi‡Li †g‡gv‡iÛvg Ae wW‡cvwRU Ae UB‡Uj wWWm m¤úv`b Kwiqv †`q bvB Ges 9/10/86 Bs ZvwiL ÕKÕ Zckxj m¤úwË weµ‡qi wbwg‡Ë 1bs weev`x e¨vsK eivei Ai`‡hvM¨ Avg‡gv³vibvgv `wjj m¤úv`b I †iwRóªx Kwiqv †`q bvB| eÜKx †`s 54/98 †gvKÏgvi AvwR© ewY©Z Kw_Z †g‡gv‡iÛvg Ae wW‡cvwRU Ae UB‡Uj wWWm Ges Ai`‡hvM¨ Avg‡gv³vibvgv `wjj cÖKvk cvB‡j Zvnv Rvj, f~qv †hvMmvRmx Zb&PKZvc~Y© I `~iwfmwÜg~jK ewjqv MY¨ nB‡e|….. 2 I 3 bs weev`x Ges 1bs weev`xi mswkó Kg©KZ©ve„›` G‡K Ac‡ii mwnZ †hvMmvR‡m ev`xi ¯^v¶i Rvj Kwiqv ‡Kvb Z…Zxq e¨w³‡K `vo KivBqv Bgcvm©‡bkb Øviv wbgœ Zckxj ewY©Z m¤úwË m¤ú‡K© Kw_Z †g‡gv‡iÛvg Ae wW‡cvwRU Ae UB‡Uj wWWm m¤úv`b KivBqv ivwLqv‡Q Ges Zckxj m¤úwË weµ‡qi wbwg‡Ë Ai`‡hvM¨ Avg‡gv³vibvgv `wjj m¤úv`b I †iwRóªx KivBqv ivwLqv 1bs weev`x e¨vsK nB‡Z AwR© ewY©Z FY D‡Ëvjb Kwiqv‡Q|Ó
36. Mr. Abdur Razzaque, learned Advocate appearing for the petitioner basically raised the contention that the suit is barred by express provision of law provided in section 20 of the Artha Rin Adalat Ain, 2003. He submits that both Artha Rin Adalat Ain, 1990 and of 2003, are special statutes providing special procedure for challenging its proceedings, orders or decrees which must be followed should any defendant of such suit wish so to do. Therefore, he insisted, there is no scope for a judgment-debtor to challenge a decree passed by the Artha Rin Adalat against him in a separate suit. He relied on the case of BSRS v Rahman Textitile Mills Ltd reported in 51 DLR (AD) 221 and a single Bench case ie, Manir Ahmed Khan v Bazlu Mia (Md) reported in 8 BLD 241 and I find another decision, seemingly more close to his point, of a Division Bench, namely, Habibur Rahmab v Election Commissioner & others at page 473 of the same BLD.
37. Mr. Ziaul Haque, learned Advocate, appearing on behalf of the opposite party No.1 in his bid to support the impugned order contended that the opposite party No. 1 is set up by impersonation as a third party mortgagor in the loan case. He did never deposit title deeds in the bank nor created mortgage by signing the Memorandum of deposit of title deeds. He did not execute the so-called irrevocable power of attorney in favour of the bank. Those documents are created beyond the knowledge of plaintiff-opposite party No. 1 by forged signatures and title deeds might have been procured from the custody of any of his co-sharer-in title. He is not one anyway connected with the loan/credit facilities advanced by the bank. And in the circumstances, he contended, a separate suit is maintainable. In support of his contention learned Advocate cited a decision of a Division Bench of our High Court Division reported in 56 DLR 588 as well as the unreported judgment passed in Civil Petition for Leave to Appeal No. 738 of 2004 arising out of the aforesaid judgment reported in 56 DLR as aforesaid.
38. A plain reading of the plaint of the instant suit amply suggests that the suit arose out of a cause of action which is unique and hardly goes with most other cases of the kind. The plaintiff (OP-1) sets out therein a clear-cut case of his total dissociation with the loan transaction, asserting, as he does, that he is in no way connected with the loan/overdraft facility granted by the bank. He is figured therein as a mortgagor by fraud, forgery and impersonation completely beyond his knowledge. It is his specific case that he did never sign the Power of Attorney or the Memorandum of Deposit of Title deeds nor did he ever deposit the title documents in the bank creating any charge on them. He is not even aware of the overdraft facility taken by the opposite party No.2. The title deeds might have been smuggled into the bank from the custody of one of his co-sharer-in- title.
39. With the peculiar background of facts the whole case turns on a number of strictly technical questions of law, namely, whether a judgment-debtor in an Arthat Rin suit claiming himself as a total stranger to the loan/credit facility granted by the bank with specific assertion that he is linked with the loan by way of fabrication and forgery of documents in his name can be called a “judgment-debtor” within the meaning of Atha Rin Adalat Ain? Even if he is aware of the Artha Rin suit against him is he bound to step into the procedure of a special law which is much harsher than the general law specially on account of its requirement of compulsory deposit of 50% latterly 10% of the decretal amount as a precondition for filing appeal? Is an order or a judgment or decree passed against such a person by an Artha Rin Adalat constituted under the Atha Rin Adalat Ain, 2003, is an “order” or a “judgment” or “decree” within the meaning of that Ain? If such a person seeks to show in an ordinary civil court that the decree passed by the special tribunal or court is a nullity does it amount to challenging the decree as contemplated by section 20 of the Ain? Can it be said that the legislature while enacting the special law intended that any person not connected with the loan but brought on records by fraud and forgery must make the statutory deposit for protecting his property? Are the ordinary civil court and the special Adalat constituted under the Artha Rin Adalat Ain courts of co-equal jurisdiction competent to try all suits of civil nature?
40. The Al-Baraka Bank case as cited by Mr. Ziaul Haque, is essentially a case on point furnishing most of the answers.
41. In the case of Al-Baraka Bank Bangladesh Ltd. v Rina Alam & another reported in 56 DLR 588, title documents were earlier deposited to create security against loan taken from the bank which was finally adjusted. Bank issued certificate as well to that effect but in spite of requests made did not return the title deeds to the mortgagor who happens to be a lady. Bank filed Artha Rin suit in 1992 against the principal borrower, a company, the lady as mortgagor and others for realization of loan money advanced to the defaulter company in which it was found that further charge was created on the unreturned documents as against the loan. As she claimed, she had no manner of connection nor did she create any charge on the unreturned documents to provide security to the loan account sued against. During pendency of the Artha Rin suit the lady filed a title suit in 1997 in the court of the court of the Joint District Judge and First Commercial Court, Dhaka, against the bank and another for declarations, inter alia, that she had no liability with the bank; the memorandum of deposit of title deeds purportedly made in her name was manufactured, forged and inoperative; return of her deeds and for compensation. The two suits continued side by side for quite sometime. Artha Rin Suit was contested by the lady wherein she was examined as a witness. Artha Rin suit was decreed on contest against the defendants including the lady. Subsequently the suit filed by the lady was also decreed in part on the findings, inter alia, that the memorandum of deposit of title deeds was created and forged and directed the bank to return the title deeds. Meanwhile upon an application under section 151 of the Code filed at the instance of the lady her property was released from the schedule of the decree of the Artha Rin Adalat against which a rule nisi was taken by the bank which was still pending.
42. Bank filed an appeal in the High Court Division challenging the decree reaffirming its case of genuineness of the charge documents, collateral security and other documents concerning the loan case with special emphasis on the bar of the subsequent suit in terms of res judicata. A Division Bench of the High Court Division heard and dismissed the appeal affirming the view taken by the trial court holding in particular, that the Artha Rin Adalat was created for a limited purpose of trying the Artha Rin suits only. It is not competent to try the subsequent suit; therefore, bar of res judicata is not attracted. The bank filed the aforesaid leave petition before the Appellate Division challenging the judgment and decree of the High Court Division. The case substantially canvassed before the Appellate Division was whether the High Court Division was wrong in its findings on the question of res judicata. The petition for leave to appeal No. 738 of 2004 that arose out of the appeal by the bank was dismissed by the apex court with the finding that the issue of the present suit was not directly or substantially in issue in the previous suit so as to render the present suit barred by res judicata.
43. The above, in terms of the barring clause, is a much worse case than the instant one. In the cited case the plaintiff of the subsequent suit was not only aware of the Artha Rin suit but also contested it. But during pendency of the Artha Rin suit, filed title suit in an ordinary civil court alleging fraud, forgery and her total dissociation with the loan transaction on trial in the Artha Rin Adalat. Both the suits continued side by side in two courts of different jurisdictions and earlier or later decrees were also passed in both the suits and finally the decree of the ordinary civil court was fought through by the bank up to the Appellate Division. The question chosen to be contested was the question of res judicata not the statutory bar. And ultimately the decree of the ordinary civil court obtained by a judgment-debtor of the Artha Rin Adalat sustained. It does not go with the High Court Division to say that the questions we are dealing with were not in the notice of the Appellate Davison while deciding the cited case. Therefore, the questions raised in the present case are answered by both the Divisions of the Supreme Court implicitly in the negative.
44. In similar circumstances superior courts of our jurisdiction have taken similar view and no controversy appears to have ever emerged on this issue.
45. In the case of Md. Mozammel Hoque v Sonali Bank & another reported in 15 BLD (AD) 36 a partner of a firm and a party to the Artha Rin suit came to know about the ex parte decree of the Artha Rin Adalat from a notification published in a newspaper about 10 months after the same was passed against him. He challenged the decree in a separate suit for a declaration that the decree was fraudulent and collusive. He filed an application in the Artha Rin Adalat for stay execution of the decree which upon final hearing was rejected. Against the order of rejection the judgment debtor-petitioner unsuccessfully moved a revisional application in the High Court Division. In the Appellate Division it was argued that High Court Division erred in law in holding that the petitioner having not availed of the special remedy provided by the Artha Rin Adalat Ain cannot challenge the decree in a separate suit. It was also contended that the petitioner came to know of the decree 10 months after it was passed when all other remedies under the Artha Rin Adalat Ain stood barred. In the circumstances if the execution is not stayed he will suffer irreparable loss and injury. The leave petition was, however, dismissed but with the following observations.
“In the facts and circumstances of the case if the petitioner’s allegation of non-service of summons of the suit is correct his remedy in a separate suit is not barred, provided his remedies under the Artha Rin Adalat Act stood barred at the time of the filing of the suit for no fault of his own. But these are matters of evidence and until the plaintiff petitioner proves these allegations in the suit the decree-holder respondent Bank cannot be denied the fruit of its decree for an indefinite period.” (Emphasis added).
46. In the case of Habibur Rahma (Md.) v Uttara Bank Ltd. & others, 11 BLC (AD) 59, the question of statutory bar more clearly came into fore. Bank obtained an ex parte decree against the sole defendant from Artha Rin Adalat, Rangpur. The defendant filed a separate suit in Dhaka impleading the loan- granting branch at Rangpur, and the head office of the bank in Dhaka challenging the ex parte decree of the Artha Rin Adalat at Rangpur alleging fraud and forgery in execution of documents. Rejection of plaint was sought by the bank in view of express bar provided in section 6 of the Artha Rin Adalat Ain, 1990. The petition was allowed and the plaint rejected by the trial court. In appeal the question of legal bar under section 6 of the Artha Rin Adalat Ain, 1990 was canvassed along with other points. High Curt Division having considered all the points allowed the appeal and set aside the order of rejection of plaint and restored the suit in its file and number and directed the trial court to return the plaint for filing in the court of competent jurisdiction, at Rangpur in view of Order VII rule 10 of the Code. Leave granted by the Appellate Division at the instance of the judgment-debtor-plaintiff to examine, inter alia, whether High Court Division was wrong in taking the view that suit filed in a court of local jurisdiction in Dhaka is incompetent. Appellate Division took notice of the facts that the cause of action of the suit had arisen out of a decree passed by an Artha Rin Adalat at Rangpur and the property sold in execution of the decree is situated at Rangpur ; auction purchaser resides at Rangpur and held (vide Para 21):
“……in such a situation the judgment-debtor figuring as plaintiff can very much file a suit in the jurisdiction where the execution case has been initiated, seeking setting aside of the decree on the ground that the decree was obtained fraudulently and then the court at such a place, ie, where the execution case has been initiated, would be competent to entertain a suit seeking declaration that the decree in the previous suit was obtained fraudulently and in all other cases the judgment-debtor is to file the suit seeking setting aside the decree passed in the previous suit in the jurisdiction of the court which passed the decree.” (Emphasis added).
47. In the case of BSRS v Rahman Textile Mills Ltd, 51 DLR (AD) 221, cited by Mr. Abdur Razzaque, the plaintiff challenging the direct sale of its property by the Bangladesh Shipa Rin Sangtha (BSRS) in a suit was an industrial concern and admittedly took loan from the Sangstha. Dispute arose, amongst others, as to whether or not the loan was fully adjusted and the auction sale of the borrower company’s property was lawful or not. In view of the ouster clause provided in Article 34(5) of the BSRS Order, 1972, Appellate Division held by majority decision that the suit is not maintainable. In Manir Ahmed’s case (8 BLD 241) relied on by Mr. Razzaque, acceptance of nomination paper for the post of Chairman, Union Parishad was challenged in a suitin view of the disqualifying clause laid down in the Election Rules framed under the Local Government (Union Parishad) Ordinace, 1983. The aggrieved defendant, a candidate, made a prayer for rejection of plaint alleging that the suit is barred by law which was refused. A Single Bench of the High Court Division maintained that this is an election dispute within the meaning of the Ordinance of 1983 thus is immune from challenge in a suit in view of rule 15 of the Election Rules. The Division Bench case reported at page 473 of the same BLD is also related to election dispute but is all about filing of the suit in a wrong forum. None of the cases cited by Mr. Razzaque or the case of the Division Bench reported at page 473 mentioned above is on point and in fact are out of context of the present case. Thus they are of no avail for him.
48. The case of Nur Islam v Agrani Bank reported in 49 DLR (AD) 135 needs be looked into as it has an apparent tenor of difference. In this case Appellate Division held that where relief is provided in the Artha Rin Adalt Ain against an ex parte decree passed by Artha Rin Adalat, ie, either by way of an application under Order IX rule 13 of the Code or in an appeal by deposit of certain sum of money the defendant cannot seek remedy under 151 of the Code even if on the ground of fraud. In this case a plain reading suggests that the defendant who unsuccessfully moved the leave petition was the sole defendant and the principal borrower having had involvement of the loan transaction. And with the underlying intention of avoiding the statutory deposit he resorted to roundabout way under the pretence of fraud. His intention was detected and leave petition was dismissed by the Appellate Division with the above observation. Facts of this case by nature and implications are far distinguishable with the facts of the present case.
49. Enactment of ouster clauses into statutes seeking to limit the ordinary jurisdiction of the court has a long history. There may be partial or limited ouster clauses and sometimes it may be in absolute terms. Ouster or exclusionary clause has received extensive judicial exposition inEnglandas well as in other common law jurisdictions. Everywhere there is one thing in common that no form of words seeking to limit the jurisdiction of the ordinary courts has been held to protect a nullity.
50. One of the most striking example of exposition of such a clause is the famously known case of Anisminic Ltd. v Foreign Compensation Commission, (1969)2 AC 147. This case arose out of a compensation-claim set up by the plaintiff, a British company, on its property inEgypt sequestrated by the Egyptian authority. The main question in this case was whether a section in the Foreign Compensation Act purporting to oust the jurisdiction of the court to review ‘determinations’ of the compensation was effective to the end. Section 4(4) of the Foreign Compensation Act. 1950 contained an absolute ouster clause worded in the following language:
“The determination by the commission of any application made to them under this Act shall not be called in question in any court of law.”
51. The House of Lords held that the word ‘determination’ must be read to exclude ultra vires determinations; the doctrine of ultra vires was extended so much so that application of ouster clause was reduced almost to a vanishing point.
52. The arguments advanced by the respondent were that by reason of the provisions of section 4(4) of the 1950 Act, the courts are precluded from considering whether the respondent’s determination was a nullity. The respondent maintained that these are plain words capable of having one meaning and here is a determination which is apparently valid; there is nothing on the face of the document to cast a doubt on its validity. If it is a nullity that could only be established by raising some kind of proceedings in court. But that would be calling the determination in question, and it is expressly prohibited by the statute. The appellants maintain that the meaning of the provision is misconstrued. The ‘determination’ means a real determination and does not include an apparent or purported determination which in the eye of law has no existence because it is a nullity. Or putting it in another way, if you seek to show that a determination is a nullity you are not questioning the purported determination- you are maintaining that it does not exist as a determination. It is one thing to question a determination which does not exist; it is quite another to say that there is nothing to be questioned. An example of a hypothetical case was given to illustrate the point. Supposing a statute provides that a certain order may be made by a person who holds a specified qualification and it contains a provision, similar to section 4(4) that such an order made by such a person shall not be called in question in any court of law. A person aggrieved by an order alleges that it is a forgery. Does such a provision require the court to treat that order as valid order? Undoubtedly such a provision protects every determination which is not a nullity. It is not necessary or even reasonable to construe the word ‘determination’ as including everything which purports to be a determination but which, in fact, is no determination at all.
53. Anisminic concerned an absolute ouster clause. The Law Lords agreed that the ouster clause would not protect a decision from challenging if the authority acted outside its jurisdiction. The appeal was allowed by majority decision.
54. The Indian Supreme court does not seem to have taken slightest of departure from the view taken by the House of Lords in Anisminic. In State of Tamil Nadu v Ramalinga Samigal Madam, (1985) 4 SCC 10 Supreme Court of India taking cue from Dhulabhai v State of MP (1968)3 SCR 662; AIR 1969 SC 78; Secretary of State v Mask & Company 67 IA 222; AIR 1940 PC 105 and other cases held:
“Even where finality is accorded to the orders passed by the special tribunal one will have to see whether such special tribunal has power to grant relief which civil court will normally grant in a suit and if the answer is in the negative it would be difficult to imply or infer exclusion of civil courts jurisdiction..”
55. In the opt-quoted Sultana Jute Mills Case, 46 DLR (AD) 174 our Appellate Division held that- ‘the Artha Adalat ‘is not a full-fledged court with all the powers and jurisdiction of a civil court. It is a civil court of defined and limited jurisdiction.’ Artha Rin Adalat is the creature of Artha Rin Adalat Ain, 2003 by which the earlier Artha Rin Adalat Ain, 1990 is repealed. Under the transitory provision of Artha Rin Adalat Ain, 2003 all the appeals under the repealed Act pending in the High Court Division continued to be governed by the earlier Act subject to application of the new Act as far as possible. And all cases under the repealed Act triable by the Artha Rin Adalat are transferred to the Artha Rin Adalat constituted under the repealing Act and provisions of the new Act are made applicable to those cases in a manner as if those were initiated under the repealing Act.
56. Both the Acts contain ouster clauses which are absolute in nature. The ouster clauses of both the repealed and repealing Acts are quoted in the main judgment delivered by my learned bother which need hardly be repeated. A bare reading of the same leaves no doubt that section 6 of the Artha Rin Adalat Ain, 1990 puts a complete bar on challenging any proceedings, order, judgment or decree of the Adalat before any court or authority save in the manner provided by the Act itself. And similar provision is enacted into the repealing Act in section 20.
57. Section 19 of the Artha Rin Adalat Ain, 2003 provides procedure of passing ex parte decree and challenging the same, amongst others, by depositing 10% of the decretal amount (which was 50% in the earlier Act) with a time-limit for appeal.
58. The preambles of the Acts are couched in much the same language. The preamble of Artha Rin Adalat Ain, 2003, now in force reads as follows:
Ò†h‡nZz Avw_©K cÖwZôvb KZ…K cÖ`Z¡ FY Av`v‡qi Rb¨ cÖPwjZ AvB‡bi AwaKZi ms‡kvab I msnZKiY cÖ‡qvRbxq; †m‡nZz GZØviv wbgœeyc AvBb Kiv nBj:-Ó
59. Section 2 ga of the Act defines FY as follows:
Ò FYÓ A_© AwMÖg, avi, bM` FY, Ifvi Wªvd&U, e¨vswKs †µwWU, evUvK…Z ev µqK…Z wej Bmjvgx kixhv †gvZv‡eK cwiPvwjZ Aw_©K cÖwZôvb KZ…K wewb‡qvMK…Z A_© ev Ab¨ †h †Kvb Avw_©K AbyKzj¨ ev my‡hvM-myweav, †h bv‡gB AwfwnZ nDKbv †Kb|
60. Section 6 (5) of the Act reads as follows:
Ò Avw_©K cÖwZôvb g~j FY MÖwnZvi ( principal debtor) wei“‡× gvgjv `v‡qi Kivi mgq , Z…Zxq c¶ ebaK`vZv ( third party mortgagor ) ev Z…Zxq c¶ M¨viv›Ui ( third party guarantor). F‡Yi mwnZ mswkó _vwK‡j, Dnvw`M‡K weev`xc¶ Kwi‡e…Ó (underlining is mine)
61. A joint reading of the preamble and the sections quoted above plainly and clearly suggests that the law is made for realization of loan or credit facilities of any kind advanced to a person by the financial institutions. And the suit intended to be filed is against the borrower and other persons concerned with the loan either as mortgagor or guarantor and none else. Parliament cannot be presumed to intend its legislation to produce a result which is grossly unjust and irrational and flouts commonsense and justice.
62. In MH Joarder v East Pakistan, PLD Dac 648, it is held by the erstwhile East Pakistan High Court that –‘No unreasonable or absurd result should be spelt out from a legislation.’ Here a comment of Sir Ivor Jennings (occurring in “The Law & The Constitution”-Jennings, Ivor, 5th Edition p 148) is pertinent: “Parliament passes many laws which many people do not like. But it never passes any laws which any substantial section of the population violently dislikes.”
63. It, therefore, follows as a natural corollary that the person who is not a borrower or one not in any way concerned with the same as mortgagor or guarantor is not contemplated in the special statute to be sued for loan or if once sued by accident or design shall be precluded from protecting his property under the ordinary law of the land by reason merely of the ouster clause provided in the statute. This is a proposition that can hardly, if ever, be conceived as is intended by the law makers while enacting the legislation.
64. I, for myself, do not find a case in our jurisdiction or beyond in which a person not contemplated by the Act itself is meant to bear the brunt of special procedure on account of the finality or ouster clauses rather the authorities cited above testify otherwise. As it appears from the decisions cited above, not only a person unconnected, if at all, with the loan transaction separate suit at the instance of a judgment- debtor of the Artha Rin Adalat someway or other connected with the loan has, in fit circumstances, found favour with our superior courts and ouster clauses did not work on the way of separate suits brought on appropriate cause of actions.
65. In view of law discussed above and the peculiar facts of the present case I am of the opinion that the opposite party No.1, before being proved as such, is not a ‘judgment-debtor’ as contemplated under the Artha Rin Adalat Ain, 2003. By the same token, the suit filed by him questioning the applicability of the same cannot be said to be barred by the ouster clause of the Ain for the precise reason that on the event of his success in his suit the decree passed against him will turn into a nullity and no ‘decree’ passed under the Act.
66. The Artha Rin Adalat is a court of limited jurisdiction created for the particular proposes of speedy trial of the suits involving loan granted by the financial institutions. This is not a full-fledged civil court competent to try all the intricate issues of civil nature. The present and many other collateral issues may arise from a loan transaction against which remedy lies only in the civil court. The legislative awareness of the matter is reflected in section 18(3) of the Arthat Rin Adalat Ain, 2003, itself which reads as fellows:
“ FYMÖnxZv-weev`x mswkó FY nB‡Z D™¢yZ wel‡q ev`x nDqv †Kvb gvgjv Ab¨ †Kvb Av`vj‡Z `v‡qi Kwiqv _vwK‡j, D³ gvgjv GB AvB‡bi Aaxb cÖwZwôZ Av`vj‡Z `v‡qiK…Z gvgjvi mwnZ &GK‡Î ïbvbx‡hvM¨ ( analogous hearing) nB‡e bv, A_ev GB AvB‡bi Aaxb cÖwZwôZ Av`vj‡Z wePvivaxb gvgjvwU Dcwi-DwjwLZ Ab¨ Av`vj‡Z wePvivaxb gvgjvi mwnZ D³ Ab¨ Av`vj‡ZI GK‡Î ïbvbx‡hvM¨ nB‡ebv; Ges AYyiƒc †Kvb Kvi‡Y GB AvB‡bi Aaxb `v‡qiK…Z gvgjv ¯’wMZ Kiv hvB‡ebv|Ó
67. The plain language of the provision suggests that Legislature has taken care of the potential suits to be filed by the defendants on issues collateral to the loan transactions and provided procedure for their trial. The specific section of the Ain, therefore, excludes the ouster clause by necessary implication in case of suits brought on appropriate causes of action.
68. In the instant suit, in particular, no less an issue than one involving allegation of making the plaintiff a third party mortgagor by fraud and forgery has to be tried which, if proved, would render the decree against him a nullity and no decree in the eye of law. The issues cannot be decided except on evidence taken in a full fledged trial before a competent civil court. Since law does not intend any person to suffer for no fault of himself the opposite party No.1 cannot be made to suffer the stringent conditions and procedure of a special statute, even if available, for no fault of him and his property be taken away as is sought to be done by a decree of the Adalat. It follows, therefore, that the suit filed by the Opposite party No. 1 is fairly maintainable.
69. For all the reasons stated above I am led to hold that the order passed by the learned Joint District Judge refusing to reject the plaint suffers no illegality calling for interference by this court.
70. In the result, the rule is discharged and the impugned order passed by the learned Joint District Judge, Second Court, Narayanganj, is affirmed. There shall, however, be no order as to cost.
M.Moazzam Husain, J.
As there has been difference of opinion between us, let this matter be placed before the learned Chief Justice for necessary order.