Appellate Division Cases
(Civil)
PARTIES
Ismet Zerin Khan ……………………….Appellant
-Vs-
The World Bank and others……………….Respondents
JUSTICE
Syed J.R. Musassir Husain CJ
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
JUDGEMENT DATE: 9th August 2005
The Specific Relief Act, Section 42, 56F.
The Code of Civil Procedure, Order VII, 14, 41, Rule 2, 11, 33.
Fazlur Rahman Vs. Rajab AH and others reported in 30 DLR (SC) 30.
Article 7 of the Articles of Agreement contained in the International Financial
Organization Order 1972 (P. O. No. 86 of 1972).
Sree Mukul Chandra Shah and others Vs. Babu Subash Chandra Sarker reported in 4
MLR (AD) 426.
Rupali Bank Ltd. Vs. Haji Md. Arab Ali and others reported in 7MLR (AD)4.
Mst. Shamim Akhtar Vs. Syed Alam Hussain and others reported in 1975 SC MR 60.
The suit barred by law as the respondent enjoy privileges and immunities from legal process with respect to acts performed by them in their official capacity unless the same has been waived inasmuch as from the averment the plaint itself give rise to contract of appointment, the appellant has no character or legal right for the declaration and as such the suit is barred under section 42 of the Specific Relief Act. The learned Counsel has further submitted that the plaint as stood on amendment, the suit having been filed for a mandatory injunction for reinstatement in service is barred under section 56F of the Specific Relief Act as where the contract is not specifically enforceable no injunction can be granted. Relationship between the plaintiff and the defendant being one of master and servant and an unwilling master cannot be trust upon with a servant by way of reinstatement through a decree in the suit ……………………(10)
” In view of the legal position as discussed above we need not decide the issue as to whether the dismissal from service in question was illegal, but we must hold that the suit is not maintainable on the ground that a declaratory decree will not be enough and that a decree for mandatory injunction necessary as a consequential relief is barred under the law. We, therefore, find that neither the trial Court nor the appellate Court nor the High Court Division considered this vital issue which cuts at the root resulting the suit not maintainable as framed. The suit ought to have been dismissed on the issue.” …………………(15)
Regarding the immunity of the respondent to be sued in our Courts, for which the suit is not maintainable. The question of immunity is a mixed question of law and fact and the material has to be produced by way of averments in the written statement and thereafter the materials are required to be considered in the light of the evidence in the suit and a decision should be arrived at accordingly……….. (18)
We are of the view that the issues of law impliedly arose therefrom as to whether the suit is barred under section 42 of the Specific Relief Act read with section 56F of the Specific Relief Act could be conveniently decided by the trial Court upon the filing of the written statement are vital for consideration of the issues as to maintainability and evidence is required to be led in support thereof. Ends of justice would best be served if we remain confined ourselves to the leave granting order instead of exercising our power under Article 104 of the Constitution and allowing the respondents to take resort of Order 41 Rule 33 of the Code of Civil Procedure ……………(21)
Civil Appeal No. 184 of 2004 (From the judgment and order dated 24th August 2003 passed by the High Court Division in Civil Revision No. 1476 of 2003).
T.H. Khan, Senior Advocate, (Abdus Sobhan, Senior Advocate with him), instructed by Md. Aftab Hossain, Advocate-on-Record …………. For the Appellant
Rafique-ul-Haq, Senior Advocate instructed by A.S.M. Khalequzzaman, Advocate-on-
Record…….. For Respondent No.l
Respondent Nos. 2-4…………………… Not represented
JUDGEMENT
1. Mohammad Fazlul Karim J: This appeal by leave arose out of the judgment and order dated 24th August, 2003 passed by the High Court Division in Civil Revision No. 1476 of 2003 making the rule absolute-in-part so far as it relates to finding in respect of section 42 of the Specific Relief Act and directing the Court to dispose of the question of maintainability of the suit before recording of the evidence setting aside the order dated 27.02.2003 passed by the Senior Assistant Judge, Savar, Dhaka in Title Suit No. 323 of 2002 renumbered as Title Suit No. 92 of 2003 upon its transfer to the Second Court of Assistant Judge, Dhaka.
2. The plaintiff filed the suit for certain declarations that the order of dismissal of the plaintiff is illegal, void and not binding upon the plaintiff and for reinstatement to all back wages and that the appointment of defendant No. 4 on 7.1.2001 to be declared void, illegal, inoperative and prayed for an order of mandatory injunction stating, inter alia, that the appellant was appointed as an External Affairs Officer of the office of the World Bank, Dhaka through a rigorous selection process for 2 years as a probationer with effect from 16 January 2000. The appellant rendered excellent service, recognized as well by the World Bank awarding her spot award salary increase and various compliments, both verbally and through e-mail. Inspite of her successful discharge of duties, the appellant all on a sudden on 3rd May 2001 was served with a notification that she would not be confirmed and her employment with the defendant World Bank would be terminated from 2nd July 2001. The appellant termed the termination as has been made without complying with the due process of law and in violation of the Banks’ applicable rules and procedure and in utter disregard and disrespect of the rules governing the staffs embodied in the Staff Manual embodying the terms and conditions of the service of the employees including the appellant.
3. Upon service of notice of the suit the defendant-World Bank appeared in Court on
23.03.2002 but did not file any written statement whereupon the suit was fixed for hearing exparte. When the defendant filed an application under order VII rule 11 of the Code of Civil Procedure on 23.3.2002 of rejection of the plaint. Meanwhile, despite an order of temporary injunction not to induct any staff to the post of the appellant, the defendant inducted one Subrata Dhar to the plaintiffs position with effect from January 1,2002 in violation of the order of injunction. The appellant, however, filed written objection against the application for rejection of plaint.
4. Upon hearing the same the learned Assistant Judge rejected the said application under Order VII Rule 11 of the Code of Civil Procedure. The defendants, however, moved the High Court Division in Civil Revision No. 1476 of 2003 challenging the order dated
27.02.2003 and obtained a Rule and-an order of stay of all further proceeding of Title Suit No. 92 of 2003. Upon contested hearing the High Court Division made the Rule absolutein-part while affirming the order rejecting the application under Order VII Rule 11 of the Code of Civil Procedure but directed the trial Court to first decide the question of maintainability of the suit under section 42 of the Specific Relief Act before recording of evidence, however, the High Court Division did not find that the suit is not maintainable under section 42 of the Specific Relief Act.
5. Thereafter the appellant moved this Court and obtained the leave as under: “Mr. T.H. Khan, the learned Counsel appearing for the petitioner submitted that the trial of a suit should not be ordinarily be held piecemeal and the trial Court no longer has a discretion to avoid decisions on fact. It is now mandatory to try and determine the issues of fact along with the issues of law and the trial Court may hear issue of maintainability as a preliminary issue but it must postpone its judgment until the suit is heard on all other issues and thereafter it must give its findings on maintainability along with other issues. The main consideration trial in order to avoid a protracted litigation and unnecessary expenditure. The learned Counsel further submitted that the defendant-respondents did not file written statement in the trial Court and at this stage the trial court has no opportunity to frame issue on the point of maintainability but the learned Single Judge of
the High Court Division out of his misconceived idea about law and dispose of the question of maintainability before filing written statement and taking evidence and as such, the liable to be interfered with by this Court. The learned Counsel lastly submitted that the Advocate of the defendants argued at the time of hearing of the application under order VII rule XI of the Code of Civil Procedure before the trial Court, that the plaint is hit by section 42 of the Specific Relief Act and so the plaint is liable to be rejected and that for repelling the said argument of the defendant’s lawyer, the trial Court opined that
the suit is not barred by section 42 of the Specific Relief Act but the learned Single Judge of the High Court Division made the rule absolute in part, holding, inter alia, that the trial Court committed error of law by holding that the suit is not barred by section 42 of the Specific Relief Act and as such the impugned judgment and order of the High Court
Division is liable to be interfered by this Court.”
6. Mr. T.H. Khan, the learned Counsel appearing for the appellant submitted that it is now well settled that the trial of a suit should not ordinarily be held piecemeal and the trial Court no longer has a discretion to avoid decisions on fact; as the trial under the circumstances is now mandatory and the Court is to determine the issues of fact along with the issues of law; the trial Court may, however, hear the issue of maintainability as a preliminary issue but must postpone its judgment until the suit is heard on all other issues and thereafter it must give its findings on maintainability along with other issues; that the main consideration underlying the general rule which deprecates piecemeal trial is to avoide a protracted litigation and unnecessary expenditure and in support of his submission has referred to the decision in the case of Fazlur Rahman Vs. Rajab AH and others reported in 30 DLR (SC) 30 wherein it has been held: “It is of course the general rule of judicial procedure that the trial should not be held piecemeal so that the litigation may not be protected. Where the parties to a suit are at issue on several question, all such questions should be heard together and disposed of be one judgment is that in case of reversal of the trial Court’s decision on certain issues, there may not be any necessity for demand of the suit for the disposal of the undisposed of issues.” “The statutory mandate, as is contained in the above quoted rule, clearly directs that if the Court is of opinion that the suit or any part thereof may be disposed of on an issue of law only, it shall try that issue first even without settling the issues of fact. The whole object of this provision seems to be that if there is any issue of law on which the entire suit may be disposed of it in the duty of the Court to try that issue first at the earliest opportunity so that the Court may not be unnecessarily bogged down in a complicated trial of the issue of fact requiring much time and involving heavy expenditure. The general principle is not doubt that the issues in a suit shall not be tried of Order 14, rule 2 of the Code is a kind of exception to the said general rule. Under the said rule of Order 14, after the filing of the written statement the Court may take up the hearing of an issue of law as a preliminary issue for decision if it is of opinion that the decision on such issue shall dispose of the entire suit or parts thereof, and may postpone even the settlement of issue of fact until the disposal of the said issue of law. The compliance with this rule is particularly obligatory
when the issue of law raises the question of jurisdiction of the Court to try the suit, as is in the present case.
7. In the cited decision though the trial of a suit in piecemeal has been discouraged but the general principle is that a suit or any part thereof may be disposed of by the Court on issue of law which should be tried first even without settling issue of fact and that the general principle of law that the issues in the suit should not be treated in part but disposed of together but the provision of Order 14 Rule 2 of the Code of Civil Procedure appears to be an exception to the said general rule under which after filing of the written statement the Court may take up for hearing an issue of law as preliminary issue for decision if it is of the opinion that the decision on issue of law as a preliminary one shall dispose of the entire suit or parts thereof, and may postpone even the settlement of issues of fact until the disposal of the said issue of law. The compliance with this rule is particularly obligatory when the issue of law raises the question of jurisdiction of the Court to try the suit, as has been alleged by the respondent in the present case.
8. The learned Counsel further submitted that the defendant-respondents did not file written statement in the trial Court as yet and at this stage the trial Court is not in seizin of the facts constituting the pleading in the suit and yet has no opportunity to frame issue on the point of maintainability but the learned Judge of the High Court Division himself having failed to find that the suit not maintainable under section 42 of the Specific Relief Act, out of misconceived idea about law and procedure illegally directed the trial Court to dispose of the question of maintainability before of the written statement and taking evidence and as such, the impugned judgment and order of the High Court Division is liable to be interfered with by this Court.
9. In the instant case admittedly the respondent has not yet filed any written statement detailing the facts and circumstances, for which allegedly the suit is not maintainable either under section 42 or 56F of the Specific Relief Act so as to avoid protracted litigation at an exorbitant the trial Court to decide the point of maintainability of the suit before recording of evidence.
10. Mr. Rafique-ul-Huq, the learned Counsel appearing for the respondent Bank has, however, submitted that the suit filed against the defendant Bank is not maintainable under Article 7 of the Articles of Agreement contained in the International Financial
Organization Order 1972 (P.O. No.86 of 1972) rendering the suit barred by law as the
respondent enjoy privileges and immunities from legal process with respect to acts performed by them in their official capacity unless the same has been waived inasmuch as from the averment the plaint itself give rise to contract of appointment, the appellant has no character or legal right for the declaration and as such the suit is barred under section 42 of the Specific Relief Act. The learned Counsel has further submitted that the plaint as stood on amendment, the suit having been filed for a mandatory injunction for reinstatement in service is barred under section 56F of the Specific Relief Act as where the contract is not specifically enforceable no injunction can be granted. The learned Counsel further submitted in view of the prayer for a declaration that the plaintiff is still in service and entitled to be reinstated with back wages is in-executable in nature and the mandatory injunction as prayed for is barred under the law as spelt out in 7 MLR (AD) 4 that the suit is not perse maintainable, the learned Counsel has further submitted that the relationship between the plaintiff and the defendant being one of master and servant and an unwilling master cannot be trust upon with a servant by way of reinstatement through a decree in the suit.
11. Mr. T.H. Khan, the learned Counsel has not disputed the proposition that the Court could reject a plaint considering the averments in the plaint itself where the suit as stands in barred by any law but in the instant case that having not done submitted that the defendant’s plea in the instant case having failed in their attempt to reject the application under Order VII Rule 11 of the Code of Civil Procedure the defendant could not at this stage apply for a modified plea of bar under section 42 of the Specific Relief Act which should ordinarily be decided on evidence on the facts to be disclosed in the pleading of the parties and has referred to a decision in the case of Guiness Peal (Trading) Limited Vs. Md. Fazlur Rahman reported in 44 DLR (AD) 242 wherein it has been held that:
“When the Court rejects or refuses to reject a plaint it does so in exercise of its jurisdiction vested in it. Even where clause (d) is invoked on the ground that the suit is barred by law the Court is entitled to examine that question whether the defendants plea is correct.”
12. Mr. T.H. Khan further submitted that the Court below concurrently found that the plaint is not liable to be rejected on the basis of the averments in the plaint as it stands today but once having considered the submissions of the learned Counsel for the petitioner as to whether the suit is barred under section 42 of the Specific Relief Act detailing the decisions on the subject on the averment in the plaint itself but refrained from arriving at any finding on the question of maintainability holding the same to be an issue of law and that Order 14 Rule 2 of the Code of Civil Procedure authorises the Court to decide the issue of law instead of deciding the issue itself acted illegally in directing the Court below to decide the issue as to maintainability before recording of the evidence.
13. The learned Counsel further submitted that the issue as to whether the suit was maintainable or not under section 42 of the Specific Relief Act cannot be decided on an
application under Order VII Rule 11 of the Code of Civil Procedure as in the instant case
the Courts below have concurrently found that the plaint is not liable to be rejected under
Order VII Rule 11 of the Code of Civil Procedure and that the maintainability of the suit can be determined at the time of trial and not under Order VII Rule 11 of the Code of
Civil Procedure and the plaint cannot be rejected in limine under Order VII Rule 11 of the Code of Civil Procedure on the question of maintainability of the suit as has been held in the case of Sree Mukul Chandra Shah and others Vs. Babu Subash Chandra Sarker reported in 4 MLR(AD) 426.
14. Mr. Rafique-Ul-Huq, the learned Counsel appearing for the respondents has further submitted from the relief in the plaint as amended in the suit being one for mandatory injunction for reinstatement of service is barred under section 56F of Specific Relief Act and the suit is not maintainable as framed and has referred to a decision in the case of Rupali Bank Ltd Vs. Haji Md. Arab Ali and others reported in 7 MLR(AD)4.
15. Admittedly the suit in the reported decision arose out of the judgment and decree of the Courts below wherein the defendant filed written statement and led evidence and that the issue before the Court in the suit was as to the maintainability of the suit where the relationship between the Bank and the plaintiff employee was found to be that of master and servant and as such the question arose as to whether they are entitled to the relief claimed for. The said decision has held, inter-alia, that: “In view of the legal position as discussed above we need not decide the issue as to whether the dismissal from service in question was illegal, but we must hold that the suit is not maintainable on the ground that a declaratory decree will not be enough and that a decree for mandatory injunction necessary as a consequential relief is barred under the law. We, therefore, find that neither the trial Court nor the appellate Court nor the High Court Division considered this vital issue which cuts at the root resulting the suit not maintainable as framed. The suit
ought to have been dismissed on the issue.”
16. In the instant case the defendant-respondent has framed certain Service rules/regulations in order to regulate the terms and conditions of the service of the plaintiff and it is to be decided on materials on record as to whether the said principles are applicable in the instant case upon averments in the written statement to that effect and evidence to be led on the pleading and thus, it will not be proper at this stage reading the plaint itself in the absence of any other materials on record to follow the said decision to hold that the suit as framed is not maintainable.
17. Similar is the case regarding the respondents’ allegation regarding the averment in the plaint in paragraph 5 of the plaint wherein the plaintiff has stated that she challenged the self same impugned action as disclosed in the plaint before the appellate Tribunal of the
World Bank whereupon No.l. The respondent has added an issue by stating that whereupon the plaintiff received US$ 38,816.75 as compensation etc. on 27.6.2003 from the defendant Administrative Tribunal in Washington thereby rendering the present suit as wastage of public time and money, the plaint ought to have been rejected under Order VII Rule 11 of the Code of Civil Procedure in respect of the same cause of action being the subject-matter of the suit which is being barred by law and has also referred to a decision in the case of 53 DLR(AD) 12 and 51 DLR (AD) 221. Both these decisions referred to are the products of protected litigations and final adjudication of the suits wherein written statement was filed and the suit have been disposed of on evidence but in the instant case there is nothing on record of the suit except the plaint itself and both the Courts below found that the plaint is not liable to be rejected but the High Court Division has remanded the suit to the trial Court for decision on considering the same as to maintainability itself to be found as to whether the plaint as stands today, as to whether the suit is barred under section 42 of the Specific Relief Act or not.
18. The learned Counsel for the respondent has submitted regarding the immunity of the respondent to be sued in our Courts, for which the suit is not maintainable. The question of immunity is a mixed question of law and fact and the material has to be produced by way of averments in the written statement and thereafter the materials are required to be considered in the light of the evidence in the suit and a decision should be arrived at accordingly.
19. Mr. Huq has finally submitted that in the absence of any appeal preferred by the respondent this Court could take resort to Order 41 Rule 33 of the Code of Civil
Procedure which enables the respondent to seek a relief even without filing an appeal or cross-objection and that relief also could be given beyond the leave order for ends of justice and in order to do complete justice by rejecting the plaint on the ground that the suit is barred under section 42 of the Specific Relief Act and has referred to a decision in the case of Mst. Shamin Akhter Vs. Syed Alam Hussain and others reported in 1975 SC MR 60 wherein it has been held that: ” The rule is at best a rule of practice only development as a result of the practice of the Judicial Committee and, therefore, like all rules of practice it can legitimately be departed from if the interests of justice so demand. The Judicial Committee itself Narayan (AIR 1947 PC 19) and departed from an equally firmly established rule that it will not in civil matters interfere with a concurrent finding of fact. This Court also did the same thing in the case of Federation of Pakistan Vs. Ail
Hasan (PLD 1967 SC 249).”
20. We do not dispute the proposition of law but in the facts and circumstances of the case since the Courts below has not found the plaint liable to be rejected for good reasons assigned, we are not inclined to take resort to the said principle of law in order to obviate the necessity of filing an appeal by the respondent or to invoke our plenary jurisdiction for doing a complete justice.
21. In view of our discussion above, we are of the view that the issues of law impliedly arose therefrom as to whether the suit is barred under section 42 of the Specific Relief Act read with section 56F of the Specific Relief Act could be conveniently decided by the trial Court upon the filing of the written statement are vital for consideration of the issues as to maintainability and evidence is required to be led in support thereof. Ends of justice would best be served if we remain confined ourselves to the leave granting order instead of exercising our power under Article 104 of the Constitution and allowing the respondents to take resort of Order 41 Rule 33 of the Code of Civil Procedure.
22. In the result, the appeal is dismissed with modification of the order of the High Court
Division and the trial Court is hereby directed to hear the suit on all issues including the issue regarding maintainability in accordance with law.
Ed.
Source: IV ADC (2007), 202