An application under Section 115(1) of the Code of Civil Procedure

DISTRICT: DHAKA

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

CIVIL REVISION NO. OF ________

IN THE MATTER OF:

An application under Section 115(1) of the Code of Civil Procedure.

AND

IN THE MATTER OF:

1. Mr. A

Son of Late B

7 Shantibagh, P.S. Motijheel

Dhaka-1000

Managing Director

X Ispat Complex Limited

Rangs Bhaban (7th floor)

113-116 Old Airport Road

Tejgaon, Dhaka-1215

2. Mr. C

Son of Mr. A

7 Shantibagh, P.S. Motijheel

Dhaka-1000

Director

X Ispat Complex Limited

Rangs Bhaban (7th floor)

113-116 Old Airport Road

Tejgaon, Dhaka-1215

Defendants

/Opposite-parties

/Petitioners

Versus

D

Son of Late E

House No. 67, Road No. 7/A

Dhanmondi Residential Area

Dhaka

Plaintiff /Petitioner /Opposite-party

AND

IN THE MATTER OF:

Order No. 2 dated 03.11.2003 passed by Mr. Md. Abdul Hai, District Judge, Dhaka in Transfer Miscellaneous Case No. 788 of 2003 staying operation of order No. 5 dated 01.11.2003 passed by the learned Assistant Judge, 2nd Court, Dhaka in Title Suit No. 349 of 2003 vacating its earlier ex-parte ad-interim order of injunction dated 01.10.2003 passed under Order XXXIX, Rule 4 of the Code of Civil Procedure;

PETITION VALUED AT TK. 2,000.00 ONLY

BEING SUIT VALUED AT TK. 2,000.00 ONLY

To:

Mr. Justice K. M. Hassan, the Chief Justice of Bangladesh and his companion justices of the Hon’ble Supreme Court.

The humble petition of the petitioners above named most respectfully

SHEWETH:

01. That this revisional petition is filed against the order No. 2 dated 03.11.2003 passed by Mr. Md. Abdul Hai, District Judge, Dhaka in Transfer Miscellaneous Case No. 788 of 2003 staying operation of order No. 5 dated 01.11.2003 passed by the learned Assistant Judge, 2nd Court, Dhaka in Title Suit No. 349 of 2003 vacating its earlier ex-parte ad-interim order of injunction dated 01.10.2003 pursuant to filing of an application under Order XXXIX, Rule 4 of the Code of Civil Procedure by the defendants/opposite parties/petitioners for vacating the order of injunction. The impugned order has restored the order of injunction on the Managing Director of X Ismat Complex Limited, one of the largest steel manufacturing unit in Bangladesh set up with total cost of over Tk.125.00 crores. The impugned order is adversely affecting the day to day business of the said Company.

Certified copy of the entire order sheet is annexed herewith and marked as ANNEXURE “A”.

02. That the defendants/opposite-parties/petitioners and the plaintiff/petitioner/ opposite-party along with others are shareholder/directors of X Ispat Complex Limited, a company limited by shares incorporated under the Companies Act on 31.12.94 with Certificate of Incorporation No. C-27547 having office at Rangs Bhaban (7th floor), 113-116 Old Airport Road, Tejgaon, Dhaka-1215 (hereinafter referred to as the “Company”). The Company is one of the largest steel industries involved in manufacturing Galvanised Plain Sheet (G. P. Sheet), Galvanised Corrugated Iron Sheet (G. C. I. Sheet), Black Plain Sheet, Mild Steel Sheet, C. R. C. A. Sheet, Steel Sheet and other metal sheet and plate.

03. That the authorised capital of the Company is Tk. 100.00 crores only out of which Tk. 43.00 crores only is paid up. As of September, 2003 the total equity of the Company including long term loan (excluding previous year’s loss and Directors’ drawing) is Tk. 94.00 crores only (approximately). As of September, 2003 the total current assets of the Company is Tk. 128.00 only (approximately) and total current liability is Tk. 123.00 only (approximately). The daily sale of the products of the Company is Tk. 60.00 lacs (approximately) and the monthly instalments payable by the Company towards adjustment of its loan is Tk. 4.90 crores (approximately). The Company has 300 labours and executives working in its factories and offices.

04. That the defendant/opposite-party/petitioner No. 1 is the first Managing Director of the Company and the defendant/opposite-party/petitioner No. 2 is a Director of the Company. Pursuant to the provision of Article 60 of the Articles of Association of the Company unless voluntarily resigns or becomes ineligible, the defendant/opposite-party/petitioner No. 1 is the lifetime Managing Director of the Company. However, in compliance of the provision of section 110 of the Companies Act, 1994 the defendant/opposite-party/petitioner No. 1 was re-appointed as Managing Director on 31.12.99.

05. That pursuant to the provision of Articles 60 and 61 of the Articles of Association of the Company the defendant/opposite-party/petitioner No. 1 is entrusted with all management affairs of the Company including, but not limited to the availing of any loan and giving mortgage or other security and executing necessary deeds/documents for the same; opening and operating bank accounts of the Company jointly with any other Director, etc.

Certified copy of the Memorandum and Articles of Association of the Company and Particulars of Directors (XII) are annexed herewith and marked as ANNEXURE “B” and “B(1)”.

06. That the plaintiff/petitioner/opposite-party is the nephew of the defendant/opposite-party/petitioner No. 1. Long after death of the father of the plaintiff/petitioner/opposite-party, the defendant/opposite-party/petitioner No. 1 as uncle of the plaintiff/petitioner/opposite-party inducted him in the Company. Out of personal quarrel with his uncle, the plaintiff/petitioner/opposite-party filed Title Suit No. 349 of 2003 against the defendants/opposite-parties/petitioners on 01.10.2003. The suit has been filed on certain frivolous and fictitious allegations for the following reliefs:

a) Pass a decree in favour of the plaintiff and against the defendants declaring that the defendant No. 1 is no more the Managing Director of the X Ispat Complex Limited situated in the schedule suit property and has no legal right to take part in any activities of the said Company.

b) To pass a decree for permanent injunction in favour of the plaintiff and against the defendant restraining the defendants from dealing with any scheduled or unscheduled Bank or financial institution of the country or with any body else in the name of the X Ispat Complex Limited and from operating any Bank Account in the name of the Company situated in the schedule suit property and also restraining the defendants from entering into the suit property or any part thereof illegally and also from obstructing the plaintiff from dealing with any scheduled, unscheduled Bank, other financial institution as Director of the Company or from operating any Bank account in any Bank in the name of the Company.

Plaint in Title Suit No. 349 of 2003 is annexed herewith and marked as ANNEXURE “C”.

07. That along with the plaint, the plaintiff/petitioner/opposite-party also filed an application for injunction to the same effect on 01.10.2003. After hearing, the learned Assistant Judge, 2nd Court at Dhaka passed an ex-parte ad-interim order of injunction vide order dated 01.10.2003 to the following effect:

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Application for injunction and the order dated 01.10.2003 are annexed herewith and marked as ANNEXURES “D” and “D(1)”.

08. That the defendants/opposite-parties/petitioners after receipt of the notice appeared in the Court on 01.11.2003 and filed an application for vacating the said ex-parte ad-interim order of injunction along with Written Objection against the application for temporary injunction filed by the plaintiff/petitioner/opposite-party. However, the learned lawyer for the plaintiff/petitioner/opposite-party refused to receive the copies of the said application and written objection.

Application under Order XXXIX, Rule 4 and Written Objection are annexed herewith and marked as ANNEXURES “E” and “E(1)”.

09. That after hearing the submissions of the learned counsel for the defendant/opposite-parties/petitioners and after perusal of the record, and the various decisions of the Supreme Court on Injunction, the learned Assistant Judge, 2nd Court was pleased to vacate the ex-parte ad-interim order of injunction by its elaborate order No. 5 dated 01.11.2003 under Order XXXIX, Rule 4 of the Code of Civil Procedure.

Certified copy of the order No. 5 dated 01.11.2003 is annexed herewith and marked as ANNEXURE “F”.

10. That on the next day, i.e. on 02.11.2003 the plaintiff/petitioner/opposite-party filed Transfer Miscellaneous Case No. 788 of 2003 in the Court of District Judge, Dhaka for transfer of Title Suit No. 349 of 2003 to any other Court on certain frivolous allegations.

Certified copy of the petition of Transfer Miscellaneous Case is annexed herewith and marked as ANNEXURE “G”.

11. That after hearing of the submissions of the learned counsel for the defendant/petitioner/opposite-party, the learned District Judge was pleased to admit the Miscellaneous Case vide order No. 1 dated 02.11.2003. The learned District Judge was also pleased to pass an ex-parte order staying all further proceedings of Title Suit No. 349 of 2003.

12. That on 03.11.2003 the plaintiff/petitioner/opposite-party filed an application in the said Transfer Miscellaneous Case under section 151 of the Code of Civil Procedure for stay operation of the order No. 5 dated 01.11.2003 passed by the learned Assistant Judge in Title Suit No. 349 of 2003 vacating its earlier order of ad-interim injunction. Although the said order No. 5 dated 01.11.2003 passed in Title Suit No. 349 of 2003 under Order XXXIX, Rule 4 of the Code of Civil Procedure is an appellable order, but no appeal was filed by the plaintiff/petitioner/opposite-party before the learned Court of District Judge, yet the learned District Judge in exercise of its discretion under section 151 of Code of Civil Procedure was pleased to pass the impugned ex-parte order No. 2 dated 03.11.2003 staying operation of the said order No. 5 dated 01.11.2003.

Certified copy of the application under section 151 of the Code of Civil Procedure filed by the plaintiff/petitioner/opposite-party is annexed herewith and marked as ANNEXURE “H”.

13. That upon receipt of the information of the said order No. 2 dated 03.11.2003, the defendants/opposite-parties/petitioners filed an application before the learned Court of District Judge on 08.11.2003 under section 151 of the Code of Civil Procedure for vacating its order No. 2 dated 03.11.2003. The learned lawyer for the defendants/opposite-parties/petitioners personally tendered the copy of the said application to the learned lawyer for the plaintiff/petitioner/opposite-party – Mr. Saifuddin Ahmed, but the said learned lawyer for the plaintiff/petitioner/opposite-party declined to receive the copy of the application. Consequently, the copy of the application was also filed in the Court with a note to the said effect. It may be mentioned here that although the learned lawyer for the plaintiff/petitioner/opposite-party did not receive copy of the application, nonetheless he had notice of the application filed by the defendants/opposite-parties/petitioners.

Certified copy of the application under section 151 of the Code of Civil Procedure filed by the defendants/opposite-parties/petitioners is annexed herewith and marked as ANNEXURE “I”.

14. That the said application for vacating the order No. 2 dated 03.11.2003 was heard by the learned District Judge on 08.11.2003.

15. That after hearing, the learned District Judge refused to vacate the impugned order but passed order No. 3 dated 08.11.2003 fixing 30.11.2003 for hearing of the same application after serving the copy and thereby refused to grant any stay as prayed for by the defendants/opposite-parties/petitioners.

16. That it is submitted that it is well-settled principle of law that the discretionary power of the Court should be exercised for ends of justice or to prevent abuse of the process of the Court. It is submitted that such discretion should be exercised only where no express provision is provided for in the Code of Civil Procedure, otherwise the provisions of the Code of Civil Procedure shall become redundant and the Courts will act at their whim. Order XLIII, Rule 1(r) of the Code of Civil Procedure expressly provides the provision for appeal against an order under Order XXXIX, Rule 4 of the Code of the Civil Procedure. In the instant case the order No. 5 dated 01.11.2003 was passed by the learned Assistant Judge under Order XXXIX, Rule 4 of the Code of Civil Procedure. As such an appeal lies against the said order, but no appeal has been filed by the plaintiff/petitioner/opposite-party. Nonetheless, the learned District Judge has passed the impugned order No. 2 dated 03.11.2003 in exercise of its powers under section 151 of the Code of Civil Procedure and stayed operation of the order No. 5 dated 01.11.2003 passed by the learned Assistant Judge. Thus the learned District Judge has committed error of law resulting in an error in the decision occasioning failure of justice, hence the impugned orders are liable to be set aside.

17. That it is submitted that inasmuch as the plaintiff/petitioner/opposite-party had a right of appeal against the order No. 5 dated 01.11.2003 passed by the learned Assistant Judge, he could not maintain an application under section 151 of the Code of Civil Procedure before the learned District Judge and the learned District Judge in exercising the powers under section 151 of the Code of Civil Procedure has acted with material irregularity in the exercise of its jurisdiction and thus has committed an error of law resulting in an error in the decision occasioning failure of justice, hence the impugned order is liable to be set aside.

18. That it is submitted that all bank accounts of the Company are operated jointly by the defendant/opposite-party/petitioner No. 1 with another Director. The impugned order No. 2 dated 03.11.2003 has restrained the said defendant/opposite-party/petitioner No. 1 from operating the bank accounts of the Company and thus the business affairs of the Company has come to a standstill position. The wages and Eid bonuses of hundreds of workers as been stuck up. As such the defendants/opposite-parties/petitioners are suffering irreparable loss and injury because of the impugned order.

19. That it is submitted that it is well settled that the Courts are reluctant in granting temporary injunction affecting the internal affairs of any company.

20. That it is submitted that the learned District Judge has committed error of law in not considering that the balance of convenience and inconvenience is not in favour of the plaintiff/petitioner/opposite-party. As such the learned District Judge has committed error of law in granting the stay and subsequently in refusing to vacate the said stay and thus the said Court has committed error of law which has resulted in an error in the decision occasioning failure of justice.

21. That being aggrieved by and dissatisfied with the order No. 2 dated 03.11.2003 passed by Mr. Md. Abdul Hai, District Judge, Dhaka in Transfer Miscellaneous Case No. 788 of 2003 staying operation of order No. 5 dated 01.11.2003 passed by the learned Assistant Judge, 2nd Court, Dhaka in Title Suit No. 349 of 2003 vacating its earlier ex-parte ad-interim order of injunction dated 01.10.2003 the petitioners above named beg to file this revisional petition on the following amongst other –

GROUNDS

I. For that in the facts and circumstances of the case the learned District Judge has committed serious error of law in passing the impugned order which has resulted in an error in the decision occasioning failure of justice and as such the impugned order is liable to be set aside.

II. For that Order XLIII, Rule 1(r) of the Code of Civil Procedure having provided the provision for appeal against an order under Order XXXIX, Rule 4 of the said Code, the learned District Judge has committed error of law in exercising its powers under section 151 of the Code of Civil Procedure and thus has committed error of law resulting in an error in the decision occasioning failure of justice and as such the impugned order is liable to be set aside.

III. For that it is well-settled principle of law that the Courts should be reluctant in granting temporary injunction affecting the internal affairs of any Company. In such a situation the impugned order having been passed affecting the internal affairs of the Company cannot be justified. As such the learned District Judge has committed error of law resulting in an error in the decision occasioning failure of justice, hence the impugned order is liable to be set aside.

IV. For that while passing the impugned order the learned District Judge has not considered that the plaintiff/petitioner/opposite-party does not have any prima facie case and as such the said Court has committed error of law resulting in an error in the decision occasioning failure of justice, hence the impugned order is liable to be set aside.

V. For that while passing the impugned order the learned District Judge has not considered that the balance of convenience and inconvenience is not in favour of the plaintiff/petitioners/ opposite-party and as such the learned Court has committed error of law resulting in an error in the decision occasioning failure of justice, hence the impugned order is liable to be set aside.

VI. For that the impugned order is otherwise illegal and liable to be set aside.

Wherefore, it is humbly prayed that the Hon’ble Court may graciously be pleased to:

a) Issue Rule calling upon the plaintiff/petitioner/opposite-party to show cause as to why the order No. 2 dated 03.11.2003 passed by Mr. Md. Abdul Hai, District Judge, Dhaka in Transfer Miscellaneous Case No. 788 of 2003 staying operation of order No. 5 dated 01.11.2003 passed by the learned Assistant Judge, 2nd Court, Dhaka in Title Suit No. 349 of 2003 vacating its earlier ex-parte ad-interim order of injunction dated 01.10.2003 passed under Order XXXIX, Rule 4 of the Code of Civil Procedure shall not be set aside;

b) After hearing the parties and cause shown, if any, make the Rule absolute;

c) Pending hearing of the Rule, stay operation of the impugned order No. 2 dated 03.11.2003 passed by the learned District Judge in Transfer Miscellaneous Case No. 788 of 2003 and stay all further proceedings of Title Suit No. 349 of 2003 pending in the Court of Assistant Judge, 2nd Court at Dhaka till disposal of the Rule.

d) Cost of the proceeding be awarded in favour of the petitioners; and

e) Pass such other or further order or orders as may be deemed fit and proper.

And for this act of kindness the petitioners as in duty bound will ever pray.

AFFIDAVIT

I, A, Son of Late B, 7 Shantibagh, P.S. Motijheel, Dhaka-1000, Managing Director, X Ispat Complex Limited, Rangs Bhaban (7th floor), 113-116 Old Airport Road, Tejgaon, Dhaka-1215, aged about _____ years, by faith Muslim, profession service, nationality Bangladeshi, do hereby solemnly affirm and say as follows:

01. That I am the petitioner No. 1 and Tadbirkar of the petitioners in this case and acquainted with the facts and circumstances of the present case and competent and authorised to swear this Affidavit.

02. That the statements of facts made in this petition are true to my knowledge and matters of records, which I verily believe to be true and the rests are submission before this Hon’ble Court.

Prepared in my office:
DEPONENT
Advocate The deponent is known to me and identified by me.
Solemnly affirmed before me by the said deponent on this the 10th day of November, 2003 at _______ a.m. Advocate
Commissioner of Affidavits

Supreme Court of Bangladesh

High Court Division

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