Appellate Division Cases
(Civil)
PARTIES
Md. Habibur Rahman …………………….. Appellant
-Vs-
M/S. Uttara Bank Ltd. Represented by its Managing Director and others ….Respondent.
JUDGEMENT DATED : 6th August 2005
The Artha Rin Adalat Ain, (IV of 1990), Section 6.
The Code of Civil Procedure (V of 1908), Section 20.
The Code of Civil Procedure 7, Rule 11.
That cause of action for filing the suit by the appellant has arisen because of the decree passed in Artha Rin Adalat Case No. 55 of 1990 and the execution taken on the basis of the said decree ending in sale of the property of the appellant in auction and purchases thereof by the Respondent No. 3 (19)
The appellant could have maintained his suit in the Court of Subordinate judge , Dhaka, had the decree passed in the suit filed at Rangpur would have affected the property of the appellant within the jurisdiction of Court at Dhaka and the decree was put into execution at Dhaka. The undisputed position is that decree passed in the Artha Rin Adalat case filed by the Respondent No. 2 did not affect property of the appellant in different jurisdiction i.e in the jurisdiction of the Court at Dhaka. The situation being not like that as stated above we are of the view that the High Court Division was not in error in making the order for return of the plaint to the learned Advocate of the appellant for presentation before the appropriate Court. (22)
Civil Appeal No. 114 Of 1997
(From the Judgment and Order dated August 27,1996 passed by the High Court Division in First Appeal No. 221 of 1996)
Abdus Samad, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record For the Appellant
N.I. Bhuiyan, Advocate-on-Record For the Respondent Nos. Not represented Respondent Nos. 3-12
JUDGMENT
1. Md. Ruhul Amin J:- The appeal by the plaintiff is against the judgment dated August 27, 19996 of the High Court Division in First Appeal No. 211 of 1996 allowing the same. The appeal was filed against the order dated November 5, 1995 of the 5th Court of Subordinate Judge (now Joint District Judge), Dhaka in Title Suit No. 135 of 1995 allowing the application filed by the Respondent Nos. 1 and 2 herein under order 7, Rule 11 of the Code of Civil Procedure and section 6 of the Artha Rin Adalat Ain, 1990 seeking rejection of the plaint of Title Suit Nos. 135 of 1995.
2. The genesis of the Title Suit No. 135 of 1995 is that the Respondent Nos. 2 filed T 55 of 1990 Artha Rin Adalat Case No. 82 of 1982 before the Court of Subordinate Judge and Artha Rin Adalat, Rangpur impleading the appellant as the sole defendant seeking decree for an amount of Tk. 57,074/- and other ancillary relief’s. The said suit was decreed in 1990 and the Respondent No.2 put the decree into execution by initiating Money Execution Case No. 96 of 1991 and got the mortgaged property sold in action.
3. Thereafter the appellant filed Title Suit No. 135 of 1995 in the 5th Court of Subordinate Judge, Dhaka, Uttara Bank Ltd. Branch at Central Road. Rangpur, the auction purchaser and several others as defendants seeking the following reliefs amongst others:
Schedule attached to the plaint is as follows:
———————————————————-BANGLA———————————————-
CSj,
4. In due course defendant Nos. 1 and 2 i.e. Uttara Bank, Head Office Dhaka, and the Uttra Bank, Branch at Rangpur entered appearance and filed an application under order 7, Rule 11 of the code of Civil Procedure and section 6 of the Artha Rin Adalat Ain, 1990 with the prayer for rejection of the plaint stating that decree was passed by the Court in Rangpur and that the decree was also put into execution in Rangpur and that the property which was sold in auction is located in Rangpur town within the jurisdiction of the Court of Subordinate Jude, Rangpur and hence the plaint of the suit so filed in the Court of Subordinate Judge, Dhaka is liable to be rejected. It was also the contention of the Bank that the plaintiff who was defendant in suit No. 55 of 1990 did not file any appeal against the decree passed in the said suit and as such he is not entitled to challenge the decree passed in Artha Rin Adalat Case No. 55 of 1990. 82 of 1982 . that no cause of action arose within the jurisdiction of the 5th Court of Subordinate Judge, Dhaka where defendant No. 1 i.e. the Uttra bank, Corporate office, 90 Motijheel, Commercial Area, Dhaka is located, that no transaction between the Uttra Bank, Branch at Rangpur and the plaintiff of Title Suit No. 135 of 1995 took place within the jurisdiction of the Court of Subordinate Jude, Dhaka. The application filed seeking rejection of the plaint was opposed by the plaintiff. The learned Subordinate Judge allowed the application for rejection of the plaint observing that plaintiff’s suit is barred by the provision of section 6 of the Artha Rin Adalat Ain, 1990 and that the property which has been sold in auction is in Rangpur town and as such is within the jurisdiction of the court in Rangpur and hence the suit filed by the plaintiff cannot be proceeded before the Court of Subordinate Judge at Dhaka and thereupon rejected the plaint.
5. As against the order of the Court of Subordinate Judge, Dhaka the plaintiff i.e. appellant herein went on appeal before the High Court Division. The High Court Division upon observing that of the defendants in Title Suit No. 135 of 1995 only defendant No.l, Uttara Bank has its Head office at Dhaka but the said defendant No. 1 was not a party in thp Artha Rin Adalat
oo OT iyyu
Case No. 82 of 1982 filed at Rangpur and in that background the High Court division observed that Uttra Bank Limited, Head Office Dhaka was impleaded as defendant No.l “only to institute the suit at Dhaka challenging the decree passed by the Court at Rangpur and thereupon held that Uttara Bank Limited, Head Office, Dhaka was an unnecessary party in title Suit No. 135 of 1995 ” since the appellant had challenged the ex-parte decree and the execution thereof obtained by the defendant No.2 Uttra Bank Ltd. Central Road Branch, Rangpur, the suit ought to have filed at Rangpur. ” The High Court Division further held that the learned Subordinate Judge, 5th Court Dhaka should not have rejected the plaint rather ought to have returned the plaint for filing the same before the appropriate Court. On the aforesaid findings the High Court Division allowed the appeal and thereby restored the suit to its filed and number and directed the 5th Court of Subordinate Judge, Dhaka to return the plaint to the filing learned Advocate in terms of the Order 7, Rule 10 of the Code of Civil Procedure.
6. The plaintiff thereupon moved this Division and obtained leave to appeal. Leave was granted to consider the contentions that the High Court Division was wrong in taking the view that the plaintiff petitioners suit was incompetent before the learned subordinate Judge, Dhaka as because the judgment and decree and the execution thereof impugned in Title suit No. 135 of 1995 was passed and taken in the Court at Rangpur, though the defendant No.l namely M/S. Uttara Bank Limited represented by its Managing Director, 90 Motijheel Commercial Area, Dhaka as a body corporate was the plaintiff in Artha Rin Case No. 55 of 1990 in the 2nd Court of Subordinate Judge, and Artha Rin Adalat, Rangpur and that the suit was maintainable under the provision of Section 20 of the code of Civil Procedure, that the direction to return the plaintiff is illegal and not sustainable in law and that the High Court Division ought to have considered the appeal on merit i. e whether the plaint was legally rejected by the trial court. Case No. 82 of 1982 . wa s filed before the Artha Rin Adalat, Rangpur by Uttara Bank, Branch at Central Road, P.S. Kotwali, Rangpur.
8. Title Suit No. 135 of 1995 of the 5th Court of Subordinate Judge, Dhaka is the off- shoot of Artha Rin Case No. 55 of 1990 and the decree passed therein as well as the Execution Case No. 96 of 1991 of the 2nd Court of Subordinate Judge and Artha Rin Adalat, Rangur. In the Artha Rin Adalat case Respondent No. 2 was the plaintiff and the appellant was the sold defendant.
9. The appellant filed the Title Suit no. 135 of 1995 in the 5th Court of Subordinate Judge, Dhaka seeking the reliefs ass stated herein before. The relief so sought in the title suit primarily for declarations that the decree passed in the Artha Rin Adalat case and the proceedings of the Execution case initiated in the light of the decree in the Artha Rin Adalat case are illegal, collusive and not binding upon the plaintiff, that the documents on the basis whereof decree in the Artha Rin Adalat case obtained were collusive, forged, fabricated and that the signature appearing in the papers were not of the plaintiff and as such a decree may be passed that the plaintiff, i.e. appellant herein, did not ‘owe any amount to the Bank, i.e. plaintiff of the Artha Rin Adalat Case and that auction purchasers in the Execution Case No. 96 of 1991 by their purchase have not acquired any right, title and interest in the land belong to the appellant.
10. The contention of the appellant is that Respondent No.l Uttra Bank Limited, Head Office at Motijheel Commercial Area, Dhaka is a corporate body and carries on business in different areas outside Dhaka as such suit filed by the appellant in Dhaka was very much entertainable by the Court of Subordinate Judge, Dhaka in the light of the provision of section 20 of the code of Civil Procedure and explanation -II thereto.
11. The provision of section 20 of the Code of Civil Procedure reads as follows: ” 20. Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction
(a) the defendant, or each of the defendants where there are more than one, at the time of commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain;
or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries business, or personally works for gain, provided that in such case either the leave of the court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or personally work for gain, as aforesaid, acquiesce in such institutions; or (c) the cause of action, wholly or in part, arises. Explanation I. Where a person has a permanent dwelling at one place and also a a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of another action arising at the place where he has such temporary residence.
Explanation II-A Corporation shall be deemed to carry on business at its sole or principal office in (Bangladesh) or , in respect of any cause of action arising at any place where it has also a subordinate office, at such place”
12. It is seen from the plaint of the Title Suit No. 135 of 1995 that there are as many as 3 principal defendants and 9 proforma defendants. Suffice it to mention there is no provision in the Code of Civil Procedure to categories the defendants in the suit as principal defendants and proforma defendants. In a suit parties who figure as the opposes of the relief sought in the suit as principal defendants and proforma defendants. In a suit parties who figure as the opposers of the relief sought in the suit are of one class i.e. defendants. There is no legal basis to attribute description to the opposes as the principal defendants and the proforma defendants, it appears that aforesaid categorization is being made though relief directly is not sought against the parties who have been described as proforma defendants but plaintiff intends adjudication of the dispute between him and the parties who have been described as principal defendants in presence of the parties described as proforma defendant (s) Although there is no provision in law for such categorization but the practice appears to be a long standing one and is being resorted to off and on.
13. The learned Counsel for the appellant submits that the suit filed by the appellant in the 5th Court of Subordinate Judge, Dhaka seeking relief against the decree obtained in the Artha Rin Adalat case and the Execution case initiated on the basis of the decree obtained in Artha Rin Adalat case although of the Court of Subordinate Judge, Rangpur but plaintiffs suit having been filed impleading the Corporate Office or in other words Head Office of the Banking Company carrying on business through its Branch Offices, as in the instant case Branch at Rangpur town, the suit so filed because of the provision of clauses (a) and (b) of section 20 of the Code of Civil Procedure (CPC) and explanation II of section 20 of CPC is very much maintainable.
14. The undenied position is that the transaction, which is being claimed by the appellant fraudulent, between the Respondent No.2 i.e. M/S. Uttara Bank Branch at Central road, Rangpur having its Head Office at Dhaka and the appellant took place, as claimed by the plaintiff of the Artha Rin Adalat case at Rangpur. The Respondent No.2 filed the suit against the appellant at Rangpur and obtained decree and thereupon put the decree into execution in the Court of Subordinate Judge, Rangpur and that in execution of the decree the property of the appellant was up to auction and was purchased by the Respondent No. 3 herein . so all the transactions and the matters relating to that took place at Rangpur. It is true Respondent No. 2 is the Branch Office of the Respondent No. 1 and that the Respondent No. 1 is carrying on business through its Branch Offices in different parts of Bangladesh, but the fact is transaction between the appellant and the Respondent No.2 and the matters thereafter touching thereto took place at Rangpur.
15. The learned Counsel for the appellant has submitted that in view of the provision of section 20(b) CPC read with explanation II to the said section the appellant quite in accordance with law has filed the suit impleading the Respondent No. 1 whose Head office is at Dhaka and its Branch Office at Rangpur as defendant No.2 . The provision in explanation II to section 20 of CPC is that a corporation would be deemed to carry on business at the place where Head Office sole or principal office of the Corporation situates and that in case of question of cause of action it would be that the cause of action has arisen at the place where the Corporation has a subordinate office . In the background of the said provision of law the learned Counsel for the appellant submits that since the defendant No. 1 carries on business through its Branch office at Rangpur the suit so filed could very much be proceeded in Dhaka. The learned Counsel continued that since the residence of the defendant No.l is at Dhaka and as such the question or arising cause of the suit is immaterial. It has also been submitted that provision of section 20 CPC does not contemplate a situation whether the later suit is the off shoot of the previous suit in the background of the result whereof the later suit was filed or in other words section 20 of CPC does not contemplate a situation whether a particular suit is a primary one or is the product of primary suit or earlier suit.
16. As against the aforesaid contentions of the appellant the learned Advocate-onrecord reiterated the grounds upon which the High Court Division allowing the appeal made order for return of the plaint for filing the same in the appropriate Court. The High Court Division has observed that defendant No. 1, i. e M/S. Uttara Bank, Head Office at Motijheel, Dhaka has been impleaded in Title Suit No. 135 of 1995 only to institute a suit at Dhaka although the said defendant was an unnecessary party in the suit filed challenging legality of the decree obtained in earlier suit decreed at Rangpur and the proceedings of the execution case wherein the property of the appellant was sold and purchased by the Respondent No. 3.
17. On reading the pleading of the Plaintiff we are of the view that the finding as regard impleading of Respondent No.l in Tkle Suit No. 135 of 1995 appears to be correct. As it appears to us that impleading of the defendant No.l in the title Suit No. 35 of 1995 of the 5th Court of Subordinate Judge, Dhaka is a contrive to filed the suit in Dhaka against the proceedings of title Suit No. 55 of 1990 of the Artha Rin Adalat, Rangpur and the execution case initiated in the light of the decree in the Artha Rin case.
18. The provision of clauses (a) and (b) of section 20 CPC and the explanation II thereto contemplate that one can file a suit impleading person in the category of the defendant amongst others against one who carries on business at the place where the suit has been filed or that in the case of a Corporation a sit can be filed impleading the Corporation in the category of defendant where its principal office locates or at a place where cause of action of the suit arises. The provision of clause (b) of section 20 CPC provides that where there are defendants more than one, if some of such defendants do not reside or carry on business or personally work for gain within the jurisdiction of the Court where in suit has been filed in that case upon taking leave of the Court the suit can be proceeded against such category of defendants or that if such category of defendants ” acquiesce in such institution.” In the suit filed by the appellant defendant No.3 (auction purchaser), it is seen, neither resides nor carries on business or personally works for gain within the jurisdiction of the 5th Court of Subordinate Judge, Dhaka There is no material in the record showing obtaining of leave of the Court to proceed with the suit against the Respondent No. 3 in Dhaka Court.
19. On reading the plaint it is seen that cause of action for filing the suit by the appellant has arisen because of the decree passed in Artha Rin Adalat Case No. 55 of 1990 and the execution taken on the basis of the said decree ending in sale of the property of the appellant in auction and purchases thereof by the Respondent No. 3. It may be mentioned decree in Artha Rin Adalat Case No. 55 of 1990 was passed by the Court of Subordinate Judge, Rangpur and the execution case on the basis of the decree passed in the Artha Rin Adalat Case No. 55 of 1990 was initiated in the Court of Subordinate Judge, Rangpur and the property of the appellant in the said execution proceeding sold situates in Rangpur. The Respondent No. 2 filed the case against the appellant in the Court of Subordinate Judge, Rangpur alleging that the transaction i.e. loan was obtained in Rangpur town by the appellant from the Respondent No.2 . It is true that Respondent No. 1 carries on business through its branch office at Rangpur but the fact remains that the transaction between the appellant and the Respondent No.2 took place in Rangpur. The appellant in his suit filed in the 5th court of Subordinate Judge, Dhaka impugned the proceedings of the suit decreed by the Court at Rangpur and also the proceedings of the execution case was taken out on the basis of the aforesaid decree in the Court at Rangpur and the property of the appellant was put into auction sale located at Rangpur and was purchased by the Respondent No. 3 who resides at Rangpur. In such a situation we are of the view the appellant taking recourse to the provision of section 20 (a) CPC read with Explanation II to said section is not competent to file the suit in Dhaka, which is in fact the off shoot of the suit which was decreed at Rangpur, since for the purpose of establishing that the decree in Artha Rin Adalat Case No. 55 of 1990 was legally passed and that execution case taken out on the basis of the decree obtained in the Artha Rin Adalat Case and that property of the appellant sold in the execution case were legally done are to be established by the Respondent No.2 through the evidence, both oral and documentary from Rangpur. So considering the Convenience of Respondent No. 2in a situation like the instant one we are of the view the appellant is not competent to file the suit as filed in the Court of Subordinate Judge, Dhaka impleading the Respondent No. 1 whose head office is at Dhaka and carries on business through its branches in Rangpur and other places, (see AIR 1992 S.C 1514). In the case of Union of India and another Vs. Ladulal Jain reported in AIR 1963 SC, 1681 it has been held; “The principle behind the provisions of els. (a) and (b) of section 20 is that the suit be instituted at a place where the defendant be able to defend the suit without undue trouble”
20. It may be mentioned transaction, which the appellant alleging fraudulent, in connection with which Artha Rin suit was filed, actually took place at Rangpur. There may be a case (s) where decree in a suit was obtained at a particular place, as in the instant case at Rangpur, and that execution was taken out at some other place, say Dhaka and in pursuant to that the judgment debtor’s property located at the place where the execution case has been initiated on the basis of the decree obtained at some other place, as in the instant case at Rangpur, is affected, 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 i.e. where the execution case has been initiate would be competent to entertain a suit 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. The proposition of law as stated above is holding the filed from long back, at least from 1902. The suit by the appellant having not been filed at Rangpur in the background of the situation as stated here in above the Court at Dhaka and had no jurisdiction to entertain the suit and in that state of the matter the High Court division has quite correctly passed the order for return of the plaint to the learned Advocate of the appellant for filing the same in the appropriate Court. The learned counsel for the appellant in support of the contention that the suit filed by the appellant in the light of the provision of section 20 CPC very much be prosecuted in Dhaka has relied upon the decision in the case of M/S. Anwar and Brothers Vs. Bangladesh Shipping Corporation reported in (1995) 15 BLD (HCD) 447. Facts of the said case in short is that the plaintiff filed the suit in the 3rd Court of Subordinate Judge, Dhaka against the Bangladesh Shipping Corporation through its branch office at Dhaka for compensation due to late delivery of certain imported goods carried by the ship of the Corporation whose principal office is at Chittagong. Bangladesh Shipping Corporation having its principal office at Chittagong filed an application under order 7, Rule 10 read with section 20 of the Code of Civil Procedure contending that principal office of the Corporation at the relevant time was at Chittagong and that cause of action also arose at Chittagong where the goods were unloaded at the port. The application so filed was allowed by the trial court and made order for return of the plaint to the plaintiff. The plaintiff challenged legality of the order for returning the plaint before the High Court Division while allowing the appeal the High Court Division has observed upon taking into consideration the explanation -II of Section 20 CPC:
” We, therefore, hold that a plaintiff can sue a corporation either at the place of its principal or subordinate office, but in the latter case it must be found by the trial Court that the corporation can conveniently put up its defence through its subordinate office and thus it can not be said that because of the expression ” in respect of any cause of action arising at any place where it has also a subordinate office” in the Explanation II a suit.can not be instituted at the place of the subordinate office if no part of the case of action arises at that place”
21. Suffice it to say the observation made in the aforesaid case in the background of the facts of the said case has no manner of application to the facts and circumstances, as stated here in before, of the instant case. In the background of facts of the case referred to by appellant the decision made therein in our view is not legally sound since evidence as regard the case of the parties would easily , readily, timely and conveniently available at the place where the goods was delivered i.e. at the port city. Moreover cause of action wholly arose where the goods said to have been delivered after inordinate delay. As has already been mentioned the intent and purport of the provisions of section 20 CPC are that suit is to be filed at a place where defendant would be able to defend the suit without undue trouble.
22. The appellant could have maintained his suit in the Court of Subordinate judge , Dhaka, had the decree passed in the suit filed at Rangpur would have affected the property of the appellant within the jurisdiction of Court at Dhaka and the decree was put into execution at Dhaka. The undisputed position is that decree passed in the Artha Rin Adalat case filed by the Respondent No. 2 did not affect property of the appellant in different jurisdiction i.e in the jurisdiction of the Court at Dhaka. The situation being not like that as stated above we are of the view that the High Court Division was not in error in making the order for return of the plaint to the learned Advocate of the appellant for presentation before the appropriate Court.
23. In the background of our discussions made herein above we find no merit in the appeal. Accordingly the appeal is dismissed. There is no order as to costs.
Ed
Source : III ADC(2006), 154.