papers and documents submitted by the parties and some of them are admitted documents and in such circumstances the learned District Judge passed the impugned judgment in according with section 7 (A) of the Arbitration Act, 2001. ….(1, 3, 20 and 20).
A. K. M. Ruhul Amin Vs District Judge and Appellate Election Tribunal, Bhola and others Abul Kalam Azad Vs. Nur Hossain Howlader and others, Abdul Bari Vs. Shahjahan Chowdhury and others, Mohammad Hossain Ali Sarker Vs. Mohammad Mobarak Ali and others reported in 38 DLR(AD) 172, Managing Director, Rupali Bank Limited and others Vs. Tafazal Hossain and others 44 DLR(AD) ref.
Mr. Mahabubay Alam, Senior Advocate with
Mr. M. Aminuddin, Advocate and
Mr. Md. Harun-Or-Rashid, Advocate
—-For the Petitioner
Mr. A. F. Hassan Ariff, Senior Advocate with
Mr. Md. Musharraf Hossain Mojumder, Advocate.
— For Opposite party
A. F. M. Ali Asgar, J:
This rule was issued calling upon the opposite party to show cause as to why the judgment and order dated 09.01.2011 passed by the learned District Judge, Dhaka in Arbitration Miscellaneous case No. 477 of 2010 granting injunction restraining the second party/petitioners from making any construction over the suit property should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.
- 2. Pending hearing of the rule, the petitioners were permitted to complete the construction of the 3rd floor at their own risk.
- 3. Fact relevant for the purpose of disposal of the rule in short are that
The opposite party herein as petitioner filed an application under Section 12 of the Arbitration Act, 2001 for appointment of Arbitrator in the Court of learned District Judge, Dhaka which was registered as Arbitration Miscellaneous Case No. 477 of 2010.
The case of the 1st Party before the learned District Judge is that;
- a. That the 1st party is a bonafide contractor doing construction business and the second party are the registered Co-Operative Society of the Rajuk Employees and run by its by-laws
- b. That the Second party got 2 bighas of land from Rajuk by a registered lease deed and they decided to construct a 10 storied building therein to raise fund.
- c. The petitioner was appointed as contractor/Developer and agreement was executed in that behalf and a power of attorney was executed infavour of the 1st party. Subsequently by amending the agreement the arbitration clause was incorporated.
- d. Thereafter a new committee of the second party was elected and in the Extra Ordinary General Meeting and annual general meeting was held and power of attorney was retified with certain amendment.
- e. Thereafter 1st party under took the foundation work. The further case of the 1st party is that they have invested 6.5 crores Taka and there was no investment of the 2nd party and has constructed building upto 3rd Floor and has paid Tk. 1 crore and 10 lacs as profit of allotment of shop and spaces to the second party.
- f. As per the amended agreement the 2nd party was promise bound to got the 4th Floor to 6th Floor constructed by the 1st party but in violation of the contract they made advertisement for construction of space/floor from 4th Floor to 9th Floor and in such circumstances the 1st party issued a legal notice and also requested by writing letter to the 2nd party for issuance of work order for construction 4th and 5th Floor as per the agreement.
- g. That in the above circumstances the 1st party filed the application for appointment of arbitrator.
- 4. During pendency of the said Arbitration Miscellaneous case the 1st party filed an application under order 39 rule 1 and 2 of the code of the civil procedure and section 7 (A), (E) of the Arbitration Act 2001 with a prayer for temporary injunction. The application was filed on 08.9.2010.
- 5. That against the said application filled by the 1st party the 2nd party appeared before the Court and contested the said application for injunction by filing written objection and denied all the material allegation made in the said application.
- 6. The learned District Judge after hearing both the parties was pleased to allow the application under order 39 rule 1 and 2 of the Code of Civil Procedure and 7 (A) (E) of the Arbitration Act and passed order of temporary injunction on 09.1.2011 on allowing the said application for temporary injunction restraining the rule petitioner i.e. the 2nd party of the arbitration case from making any construction on the land in question as mentioned in the schedule of the application.
- 7. Against the aforesaid order dated 09.1.2011 the present petitioner as appellant filed F.M.A. No 63 of 2011 before this Court and after filing of the appeal the appellants as petitioner filed an application for stay and the High Court Division issued a Civil Rule on 21.3.2011 and also passed an ad-interim order of stay. Subsequently the respondent filed a Civil Miscellaneous petition before the Appellate Division and the Appellant Division by the order dated 29.5.2011 directed a Division Bench of this Court to hear the matter by 12.6.2011 and allowed the order of status-quo granted by the learned Judge in Chamber to continue till the date i. e. 12.5.2011.
- 8. When the appeal was taken up for hearing by a Davison Bench of this Court it came to discussion and light that in view of the provision of section 48 of the Arbitration Act the appeal is not maintainable accordingly the appellant did not pressed the appeal and by the order dated 22.6.2011 the appeal and the rule were dismissed for non prosecution. Thereafter the appellants of the said Miscellaneous appeal i.e. the 2nd party of the arbitration proceeding as petitioner filed a civil revisional application as per provision of section 115(1) of the Code of Civil Procedure against the Judgment and order dated 9.1.2011 passed by the learned District Judge, Dhaka in Arbitration Miscellaneous case No. 477 of 2010 granting injunction restraining the rule petitioner i.e 2nd party making any construction on the land in question. At the time of the issuance of the rule the rule issuing Court was pleased to issue an ad-interim order in the like manner “pending hearing of the rule, the petitioner are permitted to complete the construction of 3rd floor at their own risk” .
- 9. Against the aforesaid order dated 7.4.2011 permitting the 2nd party rule petitioner to complete the construction of the 3rd floor at their own risk the opposite party i.e. the 1st party of the arbitration proceeding filed provisional civil petition for Leave to Appeal No. 568 of 2011 in the Appellate Division and the honorable Judge in Chamber was pleased to disposed of the said provisional civil petition for Leave to Appeal No. 568 of 2011 finding that “In view of the submission of the learned counsel Respondent No. 1 is directed not to construct beyond 3rd floor till disposal of the revisonal application” vide order date 25.7.2011.
- 10. Meanwhile, the opposite party filled an application for vacating the order dated 19.7.2011 passed by this Court in the civil revision permitting the petitioner to complete the 3rd floor at their own risk at the time of issuance of the rule.
- 11. When this application for vacating the order of stay came up for hearing before this Court on 19.7.2011 this Court after hearing both the parties and on the verbally undertaking given by Mr. Aminuddin the learned advocate for the petitioner that he has already instructed from his client not to proceed with construction of 3rd floor till disposal of the rule under that circumstance since both the parties agreed on this point to get the civil revision heard and disposed of and the mater was fixed for hearing and on conclusion of hearing the Court delivers this judgment.
- 12. At the very beginning of hearing Mr. Mahabubey Alam, the learned advocate appearing on behalf of the rule petitioner has submitted that the learned District Judge while acting as presiding Judge in arbitration proceeding has no power to issue an order of injunction.
- 13. Mr. Mahabubay Alam referring to section 2(b) of the Arbitration Act, simultaneously he has submitted that section 7 (A) of the Arbitration Act contained ouster of jurisdiction of Civil Code.
- 14. As such accordingly Mr. Mahabubey Alam the learned advocate for the petitioner submitted that the order of injunction passed by the learned District Judge, Dhaka in Arbitration Miscellaneous case No. 477 of 2010 is ifsofacto an illegal order which can not be sustainable in law, accordingly, he prays that the impugned order is liable to be set aside and the rule be made absolute.
- 15. In support of his argument Mr. Mahabubay Alam has referred to a case of our Appellate Division being the case of A. K. M. Ruhul Amin Vs District Judge and Appellate Election Tribunal, Bhola and others Abul Kalam Azad Vs. Nur Hossain Howlader and others, Abdul Bari Vs. Shahjahan Chowdhury and others, Mohammad Hossain Ali Sarker Vs. Mohammad Mobarak Ali and others reported in 38 DLR(AD) 172.
- 16. The case referred to by Mr. Mahabubay Alam although related to matter in respect of Election Tribunal and Election Appellate Tribunal which is not exactly in agreement with the facts of the case before us. Even than the principle that has been laid down in the aforesaid case being almost similar in nature with the present case as because the District Judge was Election Appellate Tribunal Judge and here the District Judge has been given power as per provision of section 12 of the Arbitration Act wherein our Appellate Division found that the District Judge acting as an election appellate tribunal is not a person designate but a Court subordinate to the High Court Division’’. In this view of the matter although Mr. A. F. Hassan Ariff the learned advocate appearing on behalf of the opposite parties has very strenuously submitted that no appeal or revision lies against an order passed by the District Judge in a arbitration case as per provision of Arbitration Act so the District Judge here is not amenable to the High Court Division. Mr. Hassan Ariff further submits that arbitration act is a special law for adjudication of the dispute between the parties who agreed for holding of arbitration as such it shall prevail over general law. And Mr. Ariff further submits that the Arbitration Act of 2001 is substantive as well as a procedural law. Where right of appeal has been specifically provided within the frame work of arbitration act and no provision of revision has been created in the arbitration act so no Civil Revision will lie in the High Court Division.
- 17. He next submits that since the statute has given no right to the litigant to file civil revision in the High Court Division and the arbitration act does not provide such jurisdiction to the High Court Division to exercise such power under arbitration act. The present Civil revisional application under section 115(1) of the Code of Civil Procedure is not at all maintainable and the same is liable to be dismissed and the rule be discharged accordingly.
- 18. In support of his submission Mr. A. F. Hassan Ariff has referred to a decision of our Appellate Division being the case of Managing Director , Rupali Bank Limited and others Vs. Tafazal Hossain and others reported in 44 DLR(AD) 260 wherein it has been found by our lordships in the Appellate Division “ Relation between general law and special law availability of remedy – If any legal remedy is ordinarily available under both general law and special law, the remedy prescribed by the special law must be sought in exclusion of the one available under the general law”.
- 19. The most pertinent question which has been agitated and opposed by the petitioner and opposite parties is regarding maintainability of the civil revision in the High Court Division against the order of ad- interim temporary injunction passed by the learned District Judge in arbitration Miscellaneous case; this point is main issue to be decided here.
- 20. On perusal of the papers and documents filed by both the parties in as much as after hearing both the parties, the rule petition and the counter affidavit filed by the opposite party and since it is agreed point that the learned District Judge issued order of temporary injunction in pursuance of Provision of section 7(A) kha and Ummo of the Arbitration Act of 2001 which has been amended in 2004. Thus I find that the learned District Judge has rightly and legally passed the order being enabling him by section 7 (A) of the Arbitration Act. Regarding the maintainability of the civil revision the point that has been submitted by Mr. Hassan Ariff that no civil revision or appeal shall lie against an order passed by the District Judge, I am unable to accept the contention of Mr. Ariff. In my view since there is provision of appeal as per provision of section 48 of the Arbitration Act although in respect of very specific limited ground even than there is provision of appeal and although the arbitration act does not specifically provided for revision against an order passed by the District Judge in arbitration Miscellaneous case even then in view of the decision that has been referred to by Mr. Mahabubey Alam the learned advocate for the petitioner being the case reported in 38 DLR (AD) 172 I hold the same view that as a District Judge while he is acting in pursuance of the statute enabling him by section 12 of the arbitration act as well as section 7(A) of the Arbitration Act. He is performing duty as a Judge of the civil jurisdiction and he is not a person designate but a Court subordinate to the High Court Division. Under that circumstance I find that this civil revisional application is maintainable.
- 21. Now I am to find regarding the merit and veracity of the order of injunction passed by the learned District Judge. I have gone through the impugned order which I find to be a well discussed and well evaluated order referring to the facts and circumstance and merit of the case referred to by both 1st party and opposed by the 2nd party and the learned District Judge after perusal of all the papers and documents he has passed the impugned order rightly after evaluating the papers and documents submitted by the parties and on certain facts and circumstance which are admitted by both the parties Under that circumstances the learned District Judge being empowered by section 7(A) of the Arbitration Act on very meticulous discussion of facts and circumstances and materials available from the papers and documents submitted by the both the parties was pleased to pass an order of temporary injunction till disposal of the arbitration miscellaneous case. At the same time the learned District Judge directed both the parties to take appropriate step for quick disposal of the arbitration miscellaneous case.
Orarunnessa Vs. Bangladesh and others, (Md. Ashfaqul Islam, J.)
So I do not find any cogent reason to interfere with such well evaluated and well discussed order of injunction passed by the learned District Judge. Thus I find no merit in the rule.
- 23. In the result, the rule is discharged without any order as to costs. The impugned order of temporary injunction passed by the learned District Judge on 09.1.2011 in Arbitration Miscellaneous case No 477 of 2010 is hereby maintained.
- 24. The learned District Judge is directed to hear and disposed of the Arbitration Miscellaneous case No. 477 of 2010 within 6(six) months from date of receipt of the copy of this judgment.
Send a copy of this judgment to the Court of the learned District Judge as expeditiously as possible. HHHi
HIGH COURT DIVISION
(Special Original Jurisdiction)
|Mr.Md. Ashfaqul Islam, J.
Mr. Mustafa Zaman Islam, J.
Bangladesh and others.
Constitution of Bangladesh, 1972
Artha Rin Adalat Ain (VIII of 2003)
Section 34 (12)
Admittedly, the petitioner was arrested on 5.6.2008 vide order dated 30.4.2008 and was released from civil imprisonment after serving more that six months on 27.11.2008. Accor-ding to the provisions of section 34(12) of the Artha Rin Adalat Ain, 2003 the petitioner cannot be put to civil imprisonment for the second time and hence the impugned order is exfacie illegal without any lawful authority and is of no legal effect. ..(6 and 8)
Mr. Harunur Rashid, Advocate.
–For the petitioner.
None appears …For the respondents.
Md. Ashfaqul Islam,J:
At the instance of the petitioner Osarunnessa, this Rule Nisi was issued calling upon the respondents to show cause as to why the Order no.17 dated 25.01.2011 passed by the learned Judge, Artha Rin Adalat No.1, Dhaka in Artha Execution Case No. 195 of 2007 issuing warrant of arrest (Annexure-B in violation of Section 34 of the Artha Rin Adalat Ain, 2003 and order 21 Rule 37 and section 56 of the Code of Civil Procedure shall not be passed without lawful authority and is of no legal effect.