Mr. Ali Asgar Khan Registrar Supreme Court of Bangladesh Vs. Md. Anwarul Islam being dead his heirs Most. Afroza Begum

Appellate Division Cases

(Civil)

PARTIES

Mr. Ali Asgar Khan

Registrar Supreme Court of Bangladesh & others …………………Appellants.

-vs-

Md. Anwarul Islam

being dead his heirsMost. Afroza Begum & others ………………….Respondents.

JUSTICE

Md. Ruhul Amin, J.

M.M. Ruhul Amin, J.

Md. Tafazzul Islam, J.

JUDGEMENT DATE: 26th July, 2004.

The Code of civil Procedure, Section 9, 24.

The Demonstrative Tribunals Act, 1980, Section 4.

Order VII Rule 10. Sub-rule 1 c. p.C.

Article 117.

Administrative Tribunal Rule 14 of the Supreme Court of Bangladesh (High CourtDivision) employees (Discipline and Appeal), Rules, section 4 of the AdministrativeTribunals Act, 1980 ……………………(3)

The appeal of the present respondents are pending before the Honorable chief Justice there was no other court in which the plaintiffs could present their plaint for relief and in that view of the matter the High Court Division allowed the appeal and applying as the High Court Division put it “the age old principle that justice should not only be done but should manifestly and undoubtedly be seen to be done” with draw the suit from the First Court Subordinante Judge (now Joint District Judge), Dhaka and transferred it to itself i.e same Division Bench for disposal………….(8)

We have already indicated that admittedly the respondents were persons in the service of the Republic and as such the suit filed by them was barred under Article 117 of the Constitution read with Section 4 of the Administrative Tribunals Act, 1980 and a such in our view the High Court Division was wrong in setting aside the order dated 03.8.1996 passed by the trial Court in Title Suit No. 176 of 1996 returning the plaint for presentation before the proper Court……………….. (9)

From the above facts and circumstances, we do not find any special or extra ordinary reason or ground for which the High Court Division could withdraw the suit from the trial Court and transfer the same to its own file for trial and disposal. Accordingly the High Court Division failed to exercise the jurisdiction vested in it under Order 7 Rule 11 C.P.C in this regard ……………………….. (10)

Civil Appeal No. 81 of 1997 (From the judgment and order dated 21.08.1996 passed by the High Court Division in F.M. A. No. 109 of 1996 with Civil Rule No. 215 (F.M.) of 1996)

Abdur Razzaque Khan, Additional Attorney General (Mr. Faisal H. Khan, Additional

Attorney General with him) instructed by Md. B. llossain, Advocale-on-Record……………For theAppellants.

A.R. Taz Mahainmad, Advocate instructed by Md. Nawab Ali, Advocate-on-Record……………….For the Respondents.

JUDGMENT

1. M. M. Ruhul Amin, J: This appeal by leave is directed against the judgment and order dated 21.08.1996″passed by a Tjivision Bench of the High Court Division in First Miscellaneous Appeal No. 109 of 1996 with Civil Rule No. 215 (F.M.) of 1996 allowing the appeal with cost.

2. Short facts are that the plaintiff-respondents who were employees of the Supreme Court of Bangladesh (High Court Division) were dismissed from the services by order dated 25.07.1996 on charge of gross misconduct During the pendency of their appeals before the Hon’ble Chief Justice they instituted Title Suit No. 167 of 1996 in the 1st Court of Subordinate Judge (now Joint District Judge). Dhaka on 01.08.1996 for declaration that”the said order of dismissal was illegal. The learned trial court fixed the suit for hearing on maintainability. Upon herring only the learned Advocate for the plaintiffs the trial court by an order dated 03.08.1996 held that the plaintiff-respondents being Government employess their relief against the order of dismissal lies in the Administrative Tribunal and therefore the suit is impliedly barred under Section 9 of the Code of civil Procedure. The trial Court upon taking a lenient view of the matter and in the interest of justice decided that to enable the respondent to obtain relief in the Administrative Tribunal the plaint be returned to the learned Advocate for presentation before the proper Court.

3. The respondents being aggrieved tiled First Miscellaneous Appeal No. 109 of 1996 against the aforesaid order of First Court of Subordinate Judge (now Joint District Judse), dated 03.08.1996 . The defendant appellants entered appearance and upon hearing both sides a Division Bench of the High Court Division concurred with the submission of the plaintiff respondents that the respondents cannot obtain any relief in the Administrative Tribunal because Rule 14 of the Supreme Court of Bangladesh (High Court Division) employees (Discipline and Appeal). Rules, read with first proviso to section 4 of the Administrative Tribunals Act. 1980 stands as a bar to any relief because the respondents, appeals are pending before the Chief Justice. The Division Bench opined that it is well settled that the Court returning the plaint has no power to fix time within which it is to be refiled and so it is to be presumed that for this reason no time limit was mentioned in the impugned order or the trial Court. The learned Counsel for the defendant appellants submitted that the instant suit is barred and cited some decisions in support thereof, but the Division Bench did not find those decisions to be relevant. In deciding the appeal the only ground was as to whether the plaint was legally returned to the filing Advocate or not. The Division Bench then considered Order VII Rule 10. Sub-rule 1 C.P.C and found that there is no “another court” in which the plaint of the instant suit can be tiled on the same reasoning the Division Bench found that the trial court was wrong in holding that the suit is impliedly barred under Section 9 of the Code of Civil Procedure. The impugned order of the trial court was set aside by the Division Bench of the High Court Division and the Hidi Court Division withdrew the suit from tlie Is Court of subordinate Judge (now Joint District Judge). Dhaka and transferred it to itself i.e the Division Bench for disposal and further directed for brining the records of the suit by 24.08.1996 by a special messenger and then to register it as a transferred suit forthwith so that the transferred suit is listed in suit forthwith so that the transferred suit is listed in the cause list of the Division Bench on 25.08.1996 for order. Tlie Division Bench disposed of the connected Civil Rule accordingly.

4. Leave was granted to consider the submission that the actions complained of in the suit are the face of the plaint itself in respect of two employees of the High Court Division of the Supreme Court of Bangladesh who were persons in the service of the Republic and as such from the statements of the plaint itself the suit is barred by Article 117 of the Constitution read with section 4 of the Admisntrative Tribunals Act. 1980 and the larned Judges of tlie High Court Division being n appellate court with the same powers as those of the trial court erred in law in not rejecting the plaint although that was the precise submission made before it and the further submission that the High Court Division acting as an appellate court failed to exercise its jurisdiction under Order VII Rule 11 C.P.C. which was specifically invoked by the defendant appellants before tlie Division Bench and the further submission that the Division Bench committed an error of law in withdrawing and transferring the suit to itself for trial without giving any legal reason for such withdrawal and transfer which is not permissible under Section 24 of the C.P.C

5. We have heard Mr. Abdur Razzaque Khan, the learned Additional Attorney General for the appellants and Mr. A. B. Taz Mohammad, the learned Advocate for the respondents and perused the judgment of the High Court Division and other connected papers.

6. It is undisputed that the respondents are persons in the service of the Republic being employees of the High Court Division, Supreme Court of Bangladesh .It is also undisputed they were dismissed from service and appeals preferred by them are ending before the Chief Justice for consideration and during pendency of the appeal they instituted the instant suit i.e Title Suit No. 167 of 1996 in the 1st Court of Subordinate Judge (now Joint District Judge) on 01.08.1996 forii declaration that the impugned orders of their dismissal from service are illegal, fraudulent, malafide and not binding upon them.

7. It is on record that the trial court upon consideration of the matter and hearing the learned Advocate for the plaintiffs by order dated 03.04.1996 returened the plaint to the learned filing advocate for presentation before the proper court on the ground that the plaintiffrespondents are persons in the service of the Republic and accordingly the suit is impliedly barred under Section 9 of the Code of the Procedure.

8. The High Court Division it appears held that since the appeal of the present respondents are pending before the Honorable chief Justice there was no other court in which the plaintiffs could present their plaint for relief and in that view of the matter the High Court Division allowed the appeal and applying as the High Court Division put it “the age old principle that justice should not only be done but should manifestly and undoubtedly be seen to be done” with draw the suit from the First Court Subordinante Judge (now Joint District Judge), Dhaka and transferred it to itself i.e same Division Bench for disposal.

9. We have already indicated that admittedly the respondents were persons in the service of the Republic and as such the suit tiled by them was barred under Article 117 of the Constitution read with Section 4 of the Administrative Tribunals Act, 1980 and a such in our view the High Court Division was wrong in setting aside The order dated 03.8.1996 passed by the trial Court in Title Suit No. 176 of 1996 returning the plaint for presentation before the proper Court.

10. From the above facts and circumstances, we do not find any special or extra ordinary reason or ground for which the High Court Division could withdraw the suit from the trial Court and transfer the same to its own file for trial and disposal. Accordingly the High Court Division failed to exercise the jurisdiction vested in it under Order 7 Rule 11 C.P.C in this regard . It is to be mentioned here that the High Court Division did not assign ny legal reason for withdrawal of the suit from trial court and transfer the to the Division Bench itself and the only reason assigned by the High Court Division is that since the appeals of the respondents were pending before the Chief Justice for consideration there is no other court for presentation of the plaint. This view of the High Court Division was totally wrong

11. In the facts and circumstances of the case, we are of the view that the High Court Division committed an error of law in allowing the appeal and thereby setting aside the order dated 03.08.1996 passed by the 1st Court of Subordinate Judge (now Joint District Judge). Dhaka in Title Suit No. 167 of 1996 returning the plaint and also withdrawing the suit from the trial court and transferring the same to its own file for trial and disposal and this requires interference by us. The appeal is allowed without any order as to cost.

Ed

Source: I ADC (2004), 502

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