Khaleda Rahman & another (Appellants)
Vs.
Integrated Services Limited and ors. (Respondents)
Supreme Court
High Court Division
(Civil Appellate Jurisdiction)
Present:
Mahmudul Amin Choudhury J
Md. Abdul Aziz J
Judgment
June 8, 1999.
Cases Referred To-
Karnafully Paper Mills Sramik Karmachari Union Vs. Registrar of Trade Unions, Chittagong and others 41 DLR 262; Brig Khawaja Muhammad Aslam Khan (Retd) Vs. Azad Government of the State of Jammu & Kashmir 1973 PLD 62; Lakshmi Narasimhiah and others Vs. Yalakkigowda, AIR 1965 of Mysore 310 & Monowara Begum Vs. Syed Ashrafuddin & ors, 40 DLR (AD) 251.
Lawyers Involved:
Mahmudul Islam with Akhter Imam, Advocates—For the Appellants.
Rafiq-ul Huq with Md Zakir Hossain, Advocates—For the Respondents.
Appeal from Original Order No. 98 of 1999.
Judgment
Mahmudul Amin Choudhury J.- This appeal is directed against order dated 12-5-99 passed by the learned Subordinate Judge 1st Court, Dhaka in Title Suit No. 116 of 1999 who by the said order restrained the appellants by an order of ad interim injunction from interfering and disturbing with the business, administration and management of the plaintiff No.1 company and from giving effect to the resolution of the Board Meetings dated 15-4-99 and 28-4-99 of plaintiff No. 1 company and the defendant No. 1 was restrained from acting and functioning as Managing Director or Director of the company pursuant to the Board Meetings of the company held on 28-4-99 and 22-2-1999 till the hearing of the injunction matter.
2. The short fact leading to this appeal is that the respondents instituted Title Suit No. 116 of 99 in the 1st Court of Subordinate Judge, Dhaka on l2-5-1999 alleging, inter alia, that respondent No. 1 is a private limited company which was registered on 3-4-1993 and the same is engaged in the business of rural telecommunication network and mobile telephones and respondent No. 2 is the Founding Managing Director of the said respondent No. 1 company and respondents 3 and 4 are Directors of the said company. Their further Case is that Kranti Associates Limited and respondent No. 2 are the share holders of respondent No.1 Company which is joint collaboration project with a Malaysian company which set up Sheba Telecom Ltd. to carry on business in the field of telecommunication network and mobile phones. It is also the Case of the respondents that respondent No. 1 company has 8 Directors; of which appellant is not a director and respondent Nos. 2-4 are minority share holders as against the appellants. The appellants No.1’s Case is that she is a housewife and a Director of respondent No. 1 company and appellant No. 2 as the chairman of respondent No. 1 company presides over the Board Meetings only but has no other function as per Articles of Association of the company and it is the Case of the plaintiffs that appellant No. 1 is the sister of the appellant No. 2 who is an ambitious lady with designs to control the company. Though she did not attend any general meeting or Board Meeting after the company was set up yet she used to disturb the functioning of the company in the name of her husband and brother and she is attached with a Non Government Organisation. These appellants are engaged in a conspiracy to misappropriate the funds of Sheba Telecom Limited and wanted to wind up the respondent No.1 Company. The respondent time and again requested the appellants to call a General Meeting of the company and issued a notice to hold Extraordinary General meeting of the company on 7-2-98 and all the share holders and the Directors received the notice. This meeting was held on 22- 2-1998 and it was resolved that appellant No.1 is no longer a Director of the respondent No.1 company as she was absent from three consecutive Board Meetings and some other important decisions were taken and it was also decided to amend the company’s Memorandum and articles of Association. The copy of the resolution dated 22-2- 98 was forwarded to the Directors and shareholders of the company but none raised any objection to that. Though appellant No. 1 is no longer a Director of the company she in connivance with her brother appellant No. 2 called a Board Meeting by notice dated 8-4-1999. Wherein respondent No. 3 sent a written objection to the appellant No. 2 against the said notice. That meeting was held illegally wherein the present respondent No. 2 was not present and accordingly, the meeting was adjourned to 28-4-99. Wherein some resolutions were passed removing the respondents 2, 3 and 4 from post of Managing Director, Director Company Secretary and Director of the company respectively and it is also the Case of the plaintiff that appellant No.1 wrote to respondent No. 2 on 2-5-99 asking him to hand over all papers and documents of the company on or before 9-5-99. Thereafter the respondents instituted the present suit praying for certain declarations and also filed an application under Order 39 rule 2 of the code of Civil Procedure praying for temporary injunction and the learned Subordinate Judge directed for issuance of a notice and also granted an ad interim injunction as aforesaid. The present appellants on being aggrieved by this order of ad interim injunction preferred this appeal.
3. This appeal was presented on 18-5-99 and admitted on 23-5-99 on which date the respondents entered appearance by filing vakalatnama through Mr. Zakir Hossain Advocate and as the matter was thought to be urgent it was placed in the list for hearing on 31-5-99 at the top of the list subject to anything part heard.
4. Mr. Mahmudul Islam, the learned Counsel appearing on behalf of the appellant, at the very out set submits that over the self same matter two suits have been filed. One before the learned Assistant Judge, 1st Court, Dhaka by the present appellants which is title suit No. 150 of 1999 and another before the 1st Court of Subordinate Judge, Dhaka for identical relief. Mr. Islam submits that though the present respondents entered appearance in Title Suit No. 150 of 1999 and prayed for some time for putting in written objection by suppressing this fact they filed Title Suit No. 116 of 1999 before the learned Subordinate Judge 1st Court, Dhaka. It is contended that in injunction matter which is highly discretionary. The law enjoins that the persons seeking injunction must come with clean hands. But here in the present Case the respondents came before the learned Subordinate Judge with unclean and dirty hands and, as such, they may not be favoured with any injunction. Mr Islam submitted that the same set of lawyers who appeared before this Court when the appeal was admitted also appeared before the learned Assistant Judge as well as before the learned Subordinate Judge and he was fully aware of the proceedings and it was also submitted that the respondents on receipt of the notices from the learned Assistant Judge entered appearance before that Court and filed two applications. One was for seeking time to file written objection against the ad interim injunction and the other one was filed under Order 39 rule 4 of the Code of Civil Procedure for vacating the same. They were fully aware of the proceeding but by suppressing the facts they filed Title Suit No. 116 of 1999 before the learned Subordinate Judge 1st Court, Dhaka and obtained the injunction which clearly indicates the unclean hands of the plaintiffs and, as such, they may not be favored with such a discretionary relief. Mr. Islam submitted that if the respondents have any grievances about the functioning of the company or the activities of the Directors and shareholders they could have very well brought the matter to the notice of the learned Assistant Judge where Title Suit No. 150 of 1999 is pending. But for illegal gains they have filed the present suit before the learned Subordinate Judge suppressing facts It is also submitted that on 23-5-99 when this appeal was admitted in presence of the learned Advocate Mr. Zakir Hossain an application was filed before the learned Subordinate Judge through Mr. Zakir Hossain, Advocate for making the ad interim injunction absolute, as according to the respondents there is no order of stay and the appellants have not filed any objection. Mr. Islam submits that this conduct of Mr. Zakir Hossain Advocate is unethical and the respondents may not be allowed to reap the harvest of unethical activities of Mr. Zakir Hossain Advocate and also of their own conduct which is on the very face male fide.
5. Mr. Rafiq-ul Huq, the learned Counsel appearing on behalf of the respondents, had no answer to the allegations made by Mr. Mahmudul Islam against the respondents and Mr. Zakir Hossain, Advocate. He simply submits that the conduct of Mr. Zakir Hossain and the respondents may be pardoned. He tried to lead us through the merit of the appeal itself by submitting that the Board Meeting that was arranged at the instance of appellant No.1 is illegal and on the basis of that illegal meeting the respondents cannot be removed from the post they are holding in the company. Before entering into the merit we intend to dispose of the earlier objection made by Mr. Mahmudul Islam against the conduct of the plaintiff of Title Suit No. 116 of 1999 of the 1st Court of the Subordinate Judge. Admittedly, the present appellants instituted Title Suit No. 150 of 1999 before the learned Senior Assistant Judge, 1st Court, Dhaka on 2-5-99 wherein Mr Md Sirajul Islam Khan, Mr. Didarul Alam, Mr. ABM Siddique and Kranti Associates Limited were defendants. The Suit was flied by Integrated Services Limited and Mr. Afzal H Choudhury, Mrs. Khaleda Rahman, Mr. Syed Ishtiaq Hossain. Mr. Asif H Choudhury, Mr. Ali Imam Choudhury, Miss Mahenoor Afzal Choudhury and Mrs. Salma Choudhury are plaintiff Nos. 1-8 respectively. In that suit the plaintiffs prayed for passing the decree as follows:
“(a) Declaring that the EGM dated 22-2-98 was illegal and the resolutions passed therein did not amend/alter the Memorandum/Articles of Association of the plaintiff No. 1 company.
(b) Declaring that the 68th meeting of the Board of Directors of the plaintiff No. 1 company held on 15-4-99 and 28-4-99 is valid and the resolution passed therein are also valid and binding on the company.
(c) Permanent injunction to restrain the (i) Defendants from interfering with and/or disturbing the smooth functioning of the business, administration and management of the plaintiff No. 1 company and (ii) Defendant No. 1 from acting as the Managing Director the plaintiff No. 1 company and a Nominee Director in the STL Board and Management Committee of STL and (iii) Defendant No. 3 from acting as a Nominee Director in the STL Board and (iv) Defendant No. 2 from acting as the company secretary of the plaintiff No.1 company……………”
6. In that suit the plaintiffs filed an application under Order 39 rules 1 and 2 read with section 151 of the Code of Civil Procedure and prayed as below:
“It is therefore humbly prayed that your Honour would be graciously pleased to pass an order of temporary injunction to restrain the (a) Defendants from interfering with and/or disturbing the smooth functioning of the business, administration and management of the plaintiff No.1 company, and
(b) Defendant No. 1 from acting as the Managing Director of the plaintiff No.1 company and a nominee Director in the STL, Board and Management Committee of STL, and
(c) Defendant No. 3 from acting as a nominees Director in the STL Board, and
(d) Defendant No. 2 from acting as the company secretary of the plaintiff No.1 Company.
And
Pending hearing of this petition be further pleased to grant an ad interim injunction to the above effect.”
7. It appears from the available materials that on 12-5-99 the matter of injunction was taken up by the learned Subordinate Judge who passed the following order:
“Heard the Ld. lawyer for the plaintiff/petitioners, perused the application for temporary injunction under Order 39 rule 2 read with section 151 of CPC, affidavit, photo copies of the documents filed through firstly plaint, etc.”
8. It appears that the learned Assistant Judge, on 2-5-99 heard the petition filed under Order 39, rules 1 and 2 read with section 151 of the Code of Civil Procedure and passed the following orders:
“Plaintiffs filed a petition under Order 39, rules 1 and 2 read with section 151 of CPC supported by an affidavit praying for passing the order of temporary injunction to restrain the defendants from interfering with and/or disturbing the smooth functioning of the business administration and management of the plaintiff No. 1 company and defendant No. 1 from acting as the Managing Director of the plaintiff No.1 company and nominee Director in the STL Board and Management Committee of STL and defendant No. 3 from acting as a nominee Director in the STL Board and defendant No. 2 from acting as the company secretary of the plaintiff NQ. 1 company and pending hearing of the petition be further pleased to grant an ad interim injunction to the above effect on the ground stated in the petition”
“???? ?????? ???? ???????? ?????????? ?? ?????? ?/? ????? ???? ??? ????? ???????, ???????? ? ???????? ??????? ??????? ??? ????? ??????? ??????? ????? ??????? ???? ?????? ????????? ??? ??? ?????????? ???????? ???????? ??????????? ???? ?????? ???? ?? ???? ???? ????? ????????? ?(???) ????? ????? ???? ???????? ??? ???? ???????? ???????? ??????????? ??????? ????? ?? ????? ??????? ???????? ?????? ? ?? ???? ????????? ?????? ??????? ? ???????????? ??????????? ???????????? ????? ?????? ????? ?? ???? ??????? ???????????????? ??????????? ???? ?????? ????? ??? ????:
We have already found who are the defendants in the suit filed before the learned Assistant Judge. Thereafter on 12-5-99 defendants 2, 3 and 4 of Title Suit No. 150 of 1999 filed Title Suit No. 116 of 1999 before the 1st Court of Subordinate Judge, Dhaka as plaintiff Nos. 2-4. That suit was filed against plaintiffs 2 and 3 of the Title Suit No. 150 of 1999 of the 1st Court of Assistant Judge, Dhaka. In that suit the plaintiffs prayed for the following reliefs:
A. A decree for declaration in favour of the plaintiffs and against the defendants may be passed to the effect that the resolution dated 22- 2-98 adopted in the Extraordinary General Meeting of the plaintiff No. 1 company is valid and binding upon the defendants.
B. A further declaration that the resolution adopted in the Board Meeting of the plaintiff No. 1 company dated 15-4-99 and by adjourned meeting dated 28-4-99 is illegal and void…..”
9. It further appears that in that suit the plaintiffs filed an application under Order 39, rule 2 read with section 151 of the Code of Civil Procedure and prayed for a temporary injunction. The following prayer:
??????????? ???????? ????? ????????? ?? ??,
“Your Honour will be graciously pleased to issue notice upon the defendants to show cause as to why the defendants shall not be restrained from interfering and disturbing with the business administration and management of the plaintiff No.1 company and from giving effect to the Resolution of the Board Meeting dated 15-4-99 and 28-4-99 of the plaintiff No. 1 company (ISL) and the defendant No.1 may be restrained from acting and functioning as Managing Director or Director of the company (ISL) pursuant to the Board Meeting of the company (ISL) dated 28-4-99 and 22-2-98
And
In the meantime an order of ad interim injunction to the above effect may be passed and after hearing the parties make the order of ad interim injunction absolute.”
10. It appears that the matter of injunction was taken up by the learned Subordinate Judge on 12-5- 99 and he passed the following orders:
“Plaintiff files an application under Order 39 rule 2 read with section 151 CPC and prays for passing an order to issue notice upon the defendants to show cause as to why the defendants shall not be restrained from interfering and disturbing with the business, administration and management of the plaintiff No. 1 company and from giving effect of the resolution of the Board Meeting dated 15-4-99 and 28-4-99 of the plaintiff No. 1 company (Ltd) and the defendant No.1 may be restrained from acting and functioning as Managing Director or Director of the company (ISL) pursuant to the Board Meeting of the company (ISL) dated 28-4-99 and 22-2-98 on the ground stated therein.”
11. Heard the learned lawyer for the plaintiff/petitioners perused the application for temporary injunction under Order 39 rule 2 read with section 151 of CPC affidavit photo copies of the documents filed through firstly, plaint, etc.
12. Issue notice upon the defendants to show cause within 7(seven) days from the date of service thereof as to why the defendants shall not be restrained as prayed for.
13. In the meantime the defendants are hereby restrained by an order of ad interim injunction from interfering and disturbing with the business administration and management of the plaintiff No. 1 company and from giving effect to the resolution of the Board Meeting dated 15-4-99 and 28-4-99 of the plaintiff No.1 company (ESL) and the defendant No. 1 be restrained from acting and functioning as Managing Director or Director of the company (ISL) pursuant to the Board Meeting of the by company (ISL) dated 28-4-99 and 22-2-98 till hearing of the injunction matter.
We have gone through the available materials and it appears that Title Suit No. 150 of 1999 was filed on 2-5-99 and an order of ad interim injunction was passed on that day and it appears that defendants 1-4 who are plaintiffs 2-4 of the subsequent Title Suit No. 116 of 1999 entered appearance on 10-5-99 and filed written objection and also filed a separate application under Order 39, Rule 4 read with section 151 of the Code of Civil Procedure praying for setting aside/vacating the order of ad interim injunction, and it appears that the learned Assistant Judge fixed 3-5-99 for hearing the petition filed under Order 39, rule 4 of the Code of Civil Procedure. But it appears that in the meantime on 12-5-99 Title Suit No. 116 of 1999 was filed before the learned Subordinate Judge 1st Court, Dhaka by the defendants of the earlier suit. We have gone through the copy of the plaint and it appears that there is absolutely no mention of the institution and pendency of suit filed in the Court of the learned Senior Assistant Judge. The plaintiffs of title suit No. 150 of 1999 in their plain as well as in their injunction petition as it appears deliberately avoided the mentioning of the suit pending before the learned Senior Assistant Judge, wherein they were made parties and they entered appearance and contesting the injunction matter. The plaint as well as the petition under Order 39. Rule 4 is silent on this point. But suppressing this fact the plaintiffs of Title Suit No. 116 of 1999 filed the suit and then obtained an ad interim injunction which is in this appeal before us.
14. Mr. Mahmudul Islam, the learned Counsel for the appellants, submitted that Advocate Mr. Zakir Hossain entered appearance before the learned Senior Assistant Judge in the suit filed by the present appellants and he also is the filing Advocate of Title Suit No. 116 of 1999 of the 1st Court of Subordinate Judge. It is submitted by Mr. Islam that the plaintiffs of this suit as well as their engaged advocate was fully aware of the filing and pendency of the suit before the learned Senior Assistant Judge and by suppressing this fact they filed the suit before the learned Subordinate Judge and their acts and activities are malafide and practicing fraud upon the Court they obtained the ad interim order of injunction. We have quoted above the prayers made by the plaintiffs of both the suits and it appears to us that the reliefs sought for by the parties are almost same and similar. The prayer was passed on that date and it appears that made in the injunction petitions are also the same. It further appears that this appeal was presented on 18-5-99 and the stamp-reporter submitted his report on 20-5-99 and the matter came up for hearing and also filed a separate application under Order 39, admission under Order 41, rule 11 of the Code of Civil Procedure on 23-5-99. From the vakalatnama filed it appears that Mr. Zakir Hossain, Advocate order accepted the first vakalatnama to be filed in this appeal on 20-5-99 and then another vakalatnama was accepted by him on 23-5-99 which was the date of admission of the appeal and in his presence the appeal was admitted and it was ordered that the appeal be posted in the list on 31-5-99 at the top for hearing subject to anything part heard. This part of the order was also passed in presence of Mr. Zakir Hossain, Advocate. But it appears from the perusal of a petition dated 23-5-99 filed before the learned Subordinate Judge, through Mr. Zakir Hossain, Advocate that the plaintiffs prayed for making the ad interim injunction absolute as there was no admission of the of the appeal against the ad interim order of injunction from the High Court Division. Though as a matter of fact the appeal was admitted in presence of Mr. Zakir Hossain, Advocate but on suppression of fact Mr. Zakir Hossain submitted the application before the learned Subordinate Judge. Even in the late hours of that date or on the following day he had not filed any application before the learned Subordinate Judge informing him that the appeal has already been admitted or that the High Court Division is in seisin of the injunction matter and fixed 3 1-5-99 for hearing the appeal on merit. This conduct of Mr. Zakir Hossain, Advocate is not at all proper, legal and against the normal ethics and this is not expected from the learned Advocate of this Bar who has wide practice in both the Divisions of the Supreme Court as well as before the Court below. The activities of Mr. Zakir Hossain, Advocate seems to us is derogatory to the normal practice of an Advocate. It is so shocking that when the matter was detected he has not filed any application expressing his unqualified apology. It is apparent that Mr. Zakir Hossain tried to mislead the learned Subordinate Judge in the matter which is not expected from a lawyer like him. The activities of Mr. Hossain prima facie tantamounts to a misconduct on the part of a practicing advocate and we had the intention to send the matter to the Bar Council for taking appropriate action against him. But considering his age we refrain ourselves from referring the matter to the Bar Council but let him go with a severe warning.
15. Now as regards the matter of injunction it appears that already an order of ad interim injunction has been passed by the learned Senior Assistant Judge and that is still continuing and there this respondent entered appearance and filed objection and also filed an application for vacating the order of ad interim injunction which is to be heard by the Senior Assistant Judge.
16. It appears from the perusal of the record that by suppression of the pendency of the earlier suit the plaintiffs of the present suit before the learned Subordinate Judge secured an ad interim order of injunction. It is well settled that the matter of granting or refusing injunction is a highly discretionary matter and the party seeking injunction must come with clean hands. It has been held in the Case of Karnafully Paper Mills Sramik Karmachari Union Vs. Registrar of Trade Unions, Chittagong and others reported in 41 DLR 262 that material suppression of fact is enough for setting aside the order of temporary injunction. The injunction being a form of equitable relief should be issued in aid or equity and justice and in the present Case the respondents have not approached the learned Subordinate Judge with clean hands. They suppressing the pendency of the earlier suit filed injunction petition in the present suit and obtained the ad interim order of injunction.
17. In the Case of Brig Khawaja Muhammad Aslam Khan (Retd) Vs. Azad Government of the State of Jammu & Kashmir reported in 1973 PLD 62, it has been held that in the Case of temporary injunction an applicant must show (a) a fair prima facie Case in support of the right claimed (b) an actual or threatened violation of the right (c) Productive of irreparable or at least serious damage (d) applicant’s conduct must be such as not to disentitle him to assistance but it should be fair and honest (e) there must be a greater convenience in granting than refusing the injunction and (f) equally efficacious relief must not be obtainable by any other equal mode, or proceeding.
18. In the Case of Lakshmi Narasimhiah and others Vs. Yalakkigowda, reported in AIR 1965 of Mysore 310 it has been held that Court will not help party who has not come with clean hands.
19. While deciding a matter under section 9 of the Specific Relief Act wherein a prayer was made under Order 39, rule 1 of the Code of Civil Procedure our Appellate Division has held in the Case of Monowara Begum Vs. Syed Ashrafiiddin & ors, reported in 40 DLR (AD) 251 that temporary injunction cannot be granted as it would lead to interference with and ultimately frustrate the order of the Court which was passed in the suit under section 9 of the Specific Relief Act.
20. We have considered these decisions of the Higher Courts of the sub-continent and also gone through the plaints, petitions for injunction made before the learned Senior Assistant Judge as well as of the learned Subordinate Judge portion of which we have quoted above and it appears that over the self-same matter two suits have been filed by the parties. The subsequent suit being before the learned Subordinate Judge was filed on suppression of material facts that over the self same matter another suit which was filed earlier is pending before the learned Senior Assistant Judge. When there is a suppression of material facts regarding the pendency of the earlier suit we hold that the plaintiffs of Title Suit No. 116 of 1999 has not approached the learned Subordinate Judge for injunction with clean hands, rather they approached the Court and prayed for injunction and got the ad- interim order with dirty hands which cannot be supported in any Case. It is well settled that granting or refusing injunction is an equitable relief. It should be used in aid of equity and fair justice and it is well settled that one who conies has equitable relief and must come with clean hands. But here the plaintiffs of this suit came with unclean and dirty hands and, as such, they are not entitled to any equitable relief. Further, it appears that if the injunction granted in Title Suit No. 116 of 1999 is maintained this will interfere directly with the injunction passed by the learned Senior Assistant Judge earlier then the filing of the present suit which is not acceptable to this Court in view of the decision of our Appellate Division. Furthermore, when before the learned Assistant Judge the plaintiffs of this suit entered appearance and filed objection against the injunction and also made a prayer for hearing the ad interim injunction matter the plaintiffs of the present suit has got their relief, if any, in that suit. They have a forum for getting equally efficacious relief before the Senior Assistant Judge and when that order of injunction was passed earlier and where the plaintiffs, of the present suit Case present the order of injunction passed by the learned Subordinate Judge in the present suit cannot be sustained, firstly, on the ground of malafide activities of the plaintiffs and secondly, on the ground that the plaintiffs have efficacious relief before the Senior Assistant Judge.
21. Further, Lord Halsbury in his Laws of England has defined an injunction as a judicial process whereby a party is ordered to refrain from doing or to do a particular act or thing. This definition has not been changed as yet and now in the facts and circumstances of the present Case if the ad interim order of injunction passed by the learned Subordinate Judge is maintained then a serious complication will follow in running the company. The order of injunction passed by the learned Senior Assistant Judge is not before us or before any Appellate Court. So that is to be taken as still pending and actually it is still pending and in such a situation if the present injunction is maintained then the parties in litigation particularly the company will suffer. So this Court or any Civil Court cannot be a party to such an action. By the order of injunction passed by the Senior Assistant Judge the defendants of the suit have been restrained and by the order of injunction passed by the Subordinate Judge the plaintiffs of that earlier suit have been restrained which made the situation cumbersome and the Civil Court cannot pass such an order.
22. Mr. Rafiq-ul Huq, the learned Counsel appearing on behalf of the respondents, tried to impress upon us that there is no injunction against the plaintiffs of the subsequent suit and when there is no injunction according to Mr. Huq, there is no bar in maintaining injunction in the present suit. We have quoted above the prayer portions of both the suits made in the plaint as well as in the injunction petition and also the orders of injunction and from these it is as clear as day-light that the defendants in Title Suit No. 150 of 1999 have been injuncted and in that view of the matter we find no force in the submission made by Mr Huq in this respect.
23. As we have decided to set aside the order of ad interim injunction in view of the aforesaid grounds we are not inclined to enter into the prima facie merit of the suit as this may prejudice either party before the senior Assistant Judge as well as before the Subordinate Judge. The learned Subordinate Judge has not yet disposed of the temporary injunction matter. He only passed an ad interim order of injunction in which we intend to interfere leaving the temporary injunction matter to be decided by him on the submission of the written objection by the present appellants. But as both the suits are over the selfsame subject matter and both by the same parties and both the suits were filed in two different Courts for all fairness these two suits as well as the injunction matters should be heard by the same Court and for that matter we suo motu intend to exercise our authority under Section 24 of the Code of Civil Procedure and we intend to withdraw Title Suit No. 150 of 1999 now pending before the learned Senior Assistant Judge, 1st Court, Dhaka and transfer it to be tried along with Title Suit No. 116 of 1999 analogously by the 1st Court of Subordinate Judge, Dhaka.
24. Having given our anxious consideration to the materials on record and after hearing the learned Advocates of both the sides we hold that in view of the aforesaid the respondents who are plaintiffs in Title Suit No. 116 of 1999 of the 1st Court of Subordinate Judge, Dhaka are not entitled to any ad interim injunction which requires our interference.
25. Court-fees paid are correct.
26. The appeal is accordingly allowed with costs.
27. The order of ad interim injunction passed on 12-5-1999 in Title Suit No. 116 of 1999 of the 1st Court of Subordinate Judge, Dhaka is hereby set aside and Title Suit No. 150 of 1999 of the 1st Court of Senior Assistant Judge, Dhaka is hereby withdrawn from that Court and transferred to the 1st Court of Subordinate Judge, Dhaka for trial along with Title Suit No. 116 of 1999.
The Subordinate Judge, 1st Court, Dhaka is hereby directed to dispose of the injunction matter on merit expeditiously.
Ed.
Source: 53 DLR (2001) 161