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 of the Code of Civil Procedure.
AND
IN THE MATTER OF:
M/s. X Tyres
Proprietor: Y Industries Ltd.
Shivam Chamber (5th Floor)
53, Syed Amir Ali Avenue
Kolkata – 700 019
India
Defendant
/Appellant
/Petitioner
-Versus-
1. Z Aansh Trading (Pvt.) Ltd.
Lal Bhaban
18, RAJUK Avenue
Dhaka-1000
through its Managing Director,
Mr. A
House No. CES(C) – 4
Road No. 118
Gulshan-1, Dhaka
2. M/s. K International
Proprietor: Mr. A
Lal Bhaban
18, RAJUK Avenue
Dhaka-1000
Plaintiffs
/Respondents
/Opposite Parties
3. Y Industries Ltd.
9/1, R.N. Mukherjee Road
Kolkata – 700 001, India
4. M/s. Q Sales Corporation
15, Circus Avenue
Kokata – 700 017, India
5. The Chairman
National Board of Revenue
Segunbagicha, Dhaka
6. The Commissioner of Customs
Chittagong Commissionerate
Chittagong
7. The Commissioner of Customs
Benapole Commissionerate
Benapole, Jessore
Proforma-Defendants
/Proforma-Respondents /Proforma-Opposite Parties
AND
IN THE MATTER OF:
Refusal by the learned Court of Additional District Judge, 2nd Court, Dhaka to pass any order either allowing or rejecting the application filed by the defendant/appellant/petitioner in Miscellaneous Appeal No. 299 of 2003 for stay operation of the order No. 5 dated 14.08.2003 passed by Mr. Md. Yousup Ali, Assistant Judge, 2nd Court, Dhaka in Title Suit No. 276 of 2003 granting ex-parte order of ad-interim mandatory injunction under Order XXXIX, Rule 1 and 2 read with section 151 of the Code of Civil Procedure.
APPEAL VALUED AT TK. 4,00,000.00 ONLY
APPLICATION VALUED AT TK. 4,00,000.00 ONLY
To
Mr. Justice K. M. Hasan, the Chief Justice of Bangladesh and his companion Justices of the Hon’ble Supreme Court.
The humble petition of the defendant/appellant/petitioner above named most respectfully –
SHEWETH:
01. That the point involved in this revisional application is whether a mandatory injunction can be granted in a case where distributorship of goods has been cancelled with prior notice. Even if such cancellation is illegal, the alleged damage can be compensated in terms of money. So, no order of mandatory injunction can be granted on the application of the person aggrieved. In fact, the plaintiffs have filed Money Suit No. 53 of 2003 in the Court of 1st Joint District Judge, Dhaka for realisation of Tk. 56,47,45,127.00. So, the question of mandatory injunction does not arise.
02. That this revisional petition is filed against the refusal by the learned Court of Additional District Judge, 2nd Court, Dhaka to pass any order either allowing or rejecting the application filed by the defendant/appellant/petitioner in Miscellaneous Appeal No. 299 of 2003 for stay operation of the order No. 5 dated 14.08.2003 passed by Mr. Md. Yousup Ali, Assistant Judge, 2nd Court, Dhaka in Title Suit No. 276 of 2003 granting ex-parte order of ad-interim mandatory injunction under Order XXXIX, Rule 1 and 2 read with section 151 of the Code of Civil Procedure. By refusing to pass any order the learned Court of Additional District Judge has allowed to continue the order of mandatory injunction passed by the learned Court of Assistant Judge restraining the defendant/appellant/petitioner –
directing the opposite-parties Nos. 5, 6 and 7, i.e. National Board of Revenue and the Commissioners of Chittagong and Jessore Customs to immediately stop entry of all consignment of X Brand Truck Tyres, Non-truck, LCV and Car Tyres and other materials relating thereto, shipped or transhipped as export goods of X Tyres and other materials for sale and supply by and/or through any other person or persons, importer or importers distributor or distributors, sale representative or representatives in Bangladesh market excepting the plaintiffs in the interest of justice, by an order of ad-interim mandatory injunction
Certified copy of ex-parte order of ad-interim mandatory injunction dated 14.08.2003 is annexed herewith and marked as ANNEXURE “A”.
03. That by the order of ex-parte ad-interim mandatory injunction the entire business of the defendant/appellant/petitioner in Bangladesh has been closed without considering that even if the allegations of the plaintiffs/respondents/opposite-parties Nos. 1 and 2 are found to be correct, monitory compensation will be adequate remedy and without considering that the plaintiffs/respondents/opposite-parties Nos. 1 and 2 have already filed Money Suit No. 53 of 2003 in the Court of 1st Joint District Judge, Dhaka against the defendant/appellant/petitioner for realisation of Tk. 56,47,45,127.00 only.
04. That the defendant/appellant/petitioner is one of the largest and most renowned tyre manufacturers in India. Y Industries Ltd is the proprietor of the said defendant/appellant/petitioner, namely M/s. X Tyres. In view of marketing of the goods of the defendant/appellant/petitioner in Bangladesh, the plaintiffs/respondents/opposite-parties Nos. 1 and 2 along with others were appointed as the local distributors in Bangladesh vide letters dated 04.07.1992 and 01.07.1992 respectively by the opposite-party No. 4 i.e. M/s. Q Sales Corporation, who was also appointed by the defendant/appellant/petitioner to market X Tyres in Bangladesh vide letter dated 02.06.1992. The plaintiff/respondent/opposite party No. 1 is a limited company of which Mr. A is the Managing Director and the plaintiff/respondent/opposite party No. 2 is also owned by Mr. A. So, both the plaintiffs/opposite parties Nos. 1 and 2 are the same person. The agent of M/s. X Tyres was Q Sales Corporation.
05. That the distributorship of the plaintiffs/respondents/opposite-parties Nos. 1 and 2 was terminated by notice dated 28.01.2003 with immediate effect. It may be mentioned here that M/s. Dye Tex International of 73, Kakrail, Dhaka and Solar Trading Co. of 2, R. K. Mission Road, Dhaka were already appointed as distributors. They are the present local distributors of the defendant/appellant/petitioner and they have been selling the products of the defendant/appellant/petitioner in Bangladesh, until restrained by the order of injunction.
06. That the plaintiffs/opposite parties Nos. 1 and 2 as plaintiffs filed Title Suit No. 276 of 2003 on 09.08.2003 in the Court of Assistant Judge, 2nd Court, Dhaka praying for declaration, permanent and mandatory injunction. In the plaint of the said suit, the plaintiffs/opposite parties No. 1 and 2 prayed decree, inter alia, declaring that the plaintiffs/opposite parties No. 1 and 2 are the sole distributors, sole indenters and exclusive importers of M/s. X Tyres for Bangladesh on the basis of their appointment letters and contracts/agreements made with them. On the same day, i.e. on 09.08.2003 they obtained an ex-parte order of ad-interim injunction. The defendant/appellant/petitioner appeared in the suit on 12.08.2003.
Copy of the plaint is annexed herewith and marked as ANNEXURE “B”.
07. That subsequently after 5 (five) days the plaintiffs/opposite parties Nos. 1 and 2 on 14.08.2003 filed another application surreptitiously under Order XXXIX, Rules 1, 2 and 3 along with Section 151 of the Code of Civil Procedure, 1908 and obtained an order of ex-parte ad-interim mandatory injunction.
Copy of the application for mandatory injunction is annexed herewith and marked as ANNEXURE “C”.
08. That against the order of ex-parte ad-interim injunction dated 09.08.2003, Miscellaneous Appeal No. 253 of 2003 was filed before the Court of learned District Judge, Dhaka and obtained orders of stay from the Court of District Judge, Dhaka, one is dated 17.08.2003 against the ad-interim temporary injunction and another is dated 21.08.2003 against the ad-interim mandatory injunction. Against these two orders, the plaintiffs/respondents/opposite-parties Nos. 1 and 2 filed two revisional applications before this Hon’ble Court being Civil Order Nos. 3625 of 2003 and 3626 of 2003 and both the revisional applications were rejected as being not pressed. Miscellaneous Appeal No. 253 of 2003 was transferred on 02.10.2003 by the learned District Judge to the 5th Court of Additional District Judge, Dhaka. In the said Court, the plaintiffs/respondents/opposite-parties Nos. 1 and 2 filed an application under Section 151 of the Code of Civil Procedure, 1908 for vacating the order of stay dated 21.08.2003. In the said application, the plaintiffs/respondents/opposite-parties Nos. 1 and 2 raised a technical objection that the defendant/appellant/petitioner should have filed two separate Miscellaneous Appeals against the two orders passed in Title Suit No. 276 of 2003.
09. That to avoid the technical objection raised by the plaintiffs/respondents/opposite-parties Nos. 1 and 2 and for ends of justice, the defendant/appellant/petitioner on 11.10.2003 filed a separate Miscellaneous Appeal being No. 299 of 2003 along with an application for condonation of delay in the Court of learned District Judge at Dhaka against the order dated 14.08.2003 passed in Title Suit No. 276 of 2003 by the 2nd Court of Senior Assistant Judge at Dhaka. The Appeal was admitted by the learned District Judge on 13.10.2003.
10. That Miscellaneous Appeal being No. 253 of 2003 was ultimately dismissed by the learned Court of Additional District Judge, 5th Court on technical ground vide order dated 19.10.2003. Being aggrieved by and dissatisfied with the order dated 19.10.2003 passed by the Additional District Judge, 5th Court, Dhaka the defendant/appellant/petitioner filed Civil Revision in the High Court Division. The learned lawyer for the plaintiffs/respondents/opposite-parties Nos. 1 and 2 also appeared in the Court at the time of hearing of the revisional petition. After hearing both the parties, the Hon’ble High Court Division vide Civil Order No. 4329 of 2003 disposed off the revisional petition with direction to dispose of the application for temporary injunction within two weeks, positively.
11. That accordingly, the learned Court of Assistant Judge fixed 05.11.2003 for filing Written Objection and injunction hearing. On 05.11.2003 the defendant/appellant/petitioner filed two Written Objections against the injunction petitions dated 09.08.2003 and 14.08.2003. The hearing of the injunction was held on the same date.
Written Objection against the application for mandatory injunction is annexed herewith and marked as ANNEXURE “D”.
12. That after hearing the parties, the learned Assistant Judge passed order No. 15 dated 09.11.2003 allowing the temporary injunction petition dated 09.08.2003 on complete misconception of law. However, the learned Court fixed 23.11.2003 for hearing of the mandatory injunction petition dated 14.08.2003.
13. That in such circumstances the defendant/appellant/petitioner filed an application on 17.11.2003 in the pending Miscellaneous Appeal No. 299 of 2003 for stay operation of the order of ex-parte ad-interim mandatory injunction dated 14.08.2003. Against the order dated 09.11.2003 passed by the learned Court of Assistant Judge the defendant/appellant/petitioner filed Miscellaneous Appeal No. 335 of 2003 in the Court of District Judge, Dhaka on 16.11.2003. In the said appeal the defendant/appellant/petitioner also filed an application for stay operation of the impugned order dated 09.11.2003.
14. That the plaintiffs/respondents/opposite-parties Nos. 1 and 2 appeared in the appeal and prayed for time to file Written Objections against the stay application. Accordingly, the learned District Judge fixed 24.11.2003 for filing Written Objection and for hearing of the stay application. On 24.11.2003 the plaintiffs/respondents/opposite-parties Nos. 1 and 2 filed Written Objection against the stay application whereupon hearing of the stay application was held on the same day. The learned counsels for both the parties made their extensive submissions on the stay application. But because of interference by interested party the learned District Judge could not pass any order on the stay application and transferred the appeal to the learned Court of Additional District Judge, 2nd Court fixing 30.11.2003 for hearing of the stay application. The learned District Judge passed the following order:
“Perused the petition for stay and the written objection thereof filed by the parties and heard the learned lawyers of both sides.
One of the parties to the appeal made direct tadbir to me for and against the stay and as such it is not wise and possible for me to pass any order regarding the stay matter.
Let the Misc. Appeal be transferred to the 2nd Court of Additional District Judge, Dhaka for disposal. To 30.11.2003 for hearing the stay matter.”
Certified copies of the stay application and written objection are annexed herewith and marked as ANNEXURES “E” and “E(1)”.
15. That on 30.11.2003 the stay application was taken up by the learned Additional District Judge for hearing, but the plaintiffs/respondents/opposite-parties Nos. 1 and 2 prayed for adjournment of the hearing on the ground that the senior counsel was out of Dhaka. However, considering the graveness and urgency of the matter and because of the ensuing annual vacation of the Civil Courts from 02.12.2003 the learned lawyer for the defendant/appellant/petitioner prayed for early disposal of the stay application and prayed that they are ready to complete their submissions and the next day, i.e. 01.12.2003 might be fixed for the submissions of the learned lawyer for the plaintiffs/respondents/opposite-parties Nos. 1 and 2 and it was consented by the plaintiffs/respondents/opposite-parties Nos. 1 and 2. Accordingly, the learned lawyer for the defendant/appellant/petitioner concluded their submissions on 30.11.2003 and the next day was fixed for the submissions of the learned lawyer for the plaintiffs/respondents/opposite-parties Nos. 1 and 2. But on the next day, i.e. on 01.12.2003 the plaintiffs/respondents/opposite-parties Nos. 1 and 2 filed an application that they do not have any confidence on the Court and as such prayed for adjournment of the hearing. The plaintiffs/respondents/opposite-parties Nos. 1 and 2 stated in their application that they have filed Transfer Miscellaneous Case No. 872 of 2003 in the Court of District Judge. Consequently, the learned Court of Additional District Judge without passing any order either allowing or rejecting the application for stay, suspended the hearing of the stay application till receipt of any order from the learned District Judge. It may be mentioned here that upon enquiry, the defendant/appellant/petitioner came to know that the plaintiffs/respondents/opposite-parties Nos. 1 and 2 filed the said Transfer Miscellaneous Case on 01.12.2003, i.e. on the last working day of the Civil Court and the said Transfer Miscellaneous Case was not admitted by the learned Court of District Judge till commencing the annual vacation of the Civil Court. From the conduct of the plaintiffs/respondents/opposite-parties Nos. 1 and 2 it is apparent that they have played a necked game of abuse of the process of the Court.
Certified copy of the application filed by the plaintiffs/respondents/opposite-parties Nos. 1 and 2 on 01.12.2003 is annexed herewith and marked as ANNEXURE “F”.
16. That the defendant/appellant/petitioner’s case as stated in all pleadings in short is as follows:
(a) The defendant/appellant/petitioner entered into an Agency Arrangement with M/s. Q Sales Corporation on 02.06.1992. Under the said Agency Arrangement, the defendant/opposite party No. 4 i.e. M/s. Q Sales Corporation, was appointed as one of the agents of the defendant/appellant/petitioner in Bangladesh under certain terms and conditions. The Agency Arrangement clearly stipulated as follows:
“The company [i.e. the defendant/appellant/petitioner] reserves the right to terminate the agency without assigning any reason whatsoever.
The company also reserves the right to appoint any other agent as it may deem fit.”
(b) On the basis of the Agency Arrangement with the defendant/appellant/petitioner, the defendant/opposite party No. 4 i.e. M/s. Q Sales Corporation entered into two Distributorship Arrangements with Z Aansh Trading (Pvt.) Ltd. and M/s. K International i.e. the plaintiffs/opposite parties No. 1 and 2 respectively. The letters through which the plaintiffs/opposite parties No. 1 and 2 were appointed distributors of the defendant/appellant/petitioner’s products in Bangladesh categorically state as follows:
“1. The above distributorship is subject to M/s. X Tyres agreement with M/s. Q Sales Corporation.
Our principal M/s. X Tyres reserves the right to make any changes in the aforesaid agreement. The principal also reserves the right to terminate the agency/distributorship and also to appoint other agents and other distributors if they so deem fit.”
The above-mentioned terms and conditions were unconditionally and unequivocally accepted by the plaintiffs/opposite parties No. 1 and 2 and thereby they became the authorised distributor of the defendant/appellant/petitioner’s products in Bangladesh.
(c) The Distributorship Arrangement entered into between M/s. Q Sales Corporation and Z Aansh Trading (Pvt.) Ltd. was subsequently re-affirmed by the defendant/appellant/petitioner vide letter dated 01.09.1992 wherein the defendant/appellant/petitioner wrote as follows:
“As desired, we take pleasure to confirm you as one of our distributors for the sale of our tyres of different specifications in Bangladesh.”
Hence, in all the agreements/correspondences regarding the appointment of the plaintiffs/opposite parties Nos. 1 and 2 as distributors of the defendant/appellant/petitioner’s products, it was clearly stipulated that the plaintiffs/opposite parties No. 1 and 2 were one of the distributors and the defendant/appellant/petitioner reserves the right to appoint any other distributor in Bangladesh.
(d) Subsequently, by letter dated 16.11.1992, M/s. Q Sales Corporation, on its own and on behalf of M/s. K International, requested the defendant/appellant/petitioner to appoint them as sole export agent and sole indentor respectively. The relevant portion of the letter reads as follows:
“Therefore, we would request you to appoint us the sole export agent and our associate M/s. K International the sole distributor for X Tyres in Bangladesh.”
However, the defendant/appellant/petitioner did not agree to appoint the plaintiffs/opposite parties No. 1 and 2 as sole distributor in Bangladesh. In fact, at no point of time did the defendant/appellant/petitioner agree that the plaintiffs/opposite parties No. 1 and 2 would be sole distributor of their products in Bangladesh. So, it is crystal clear from the letters mentioned above that the plaintiffs/opposite parties No. 1 and 2 were in no way sole, exclusive and permanent distributors of the X Brand Tyre Products in Bangladesh. As such, the defendant/appellant/petitioner has every right to cancel the distributorship agreements with the plaintiffs/opposite parties No. 1 and 2.
(e) As authorised distributor of X Brand Tyre Products i.e. the defendant/appellant/petitioner’s tyre products in Bangladesh, the plaintiffs/opposite parties Nos. 1 and 2 acted for a couple of years. In the latter part of their said distributorship, the defendant/appellant/petitioner received a number of complaints regarding furious products in the name of X products in Bangladesh. Upon a visit by the defendant/appellant/petitioner’s officials in the plaintiffs/opposite parties No. 1 and 2’s premises in Bangladesh to evaluate the performance of X Tyres in Bangladesh in 1999, a number of complaints were received regarding the performance of X products in the local market. The defendant/appellant/petitioner’s officials also noted that the plaintiffs/opposite parties No. 1 and 2 failed to distribute tyres in Bangladesh as per the defendant/appellant/petitioner’s requirement.
(f) That subsequently in a meeting dated 10.10.2001 between the defendant/appellant/petitioner and the plaintiffs/opposite parties No. 1 and 2, it was agreed as follows:
“The market for X Tyres in Bangladesh is approx. 5,000 truck tyres and 5,000 non-truck tyres. K shall ensure that by December, 01 this level is reached. It is agreed between the parties that in case K International is not able to take up the quantities as per schedules given in Annexure – I, then X Tyres will introduce another channel of distribution in Bangladesh but shall ensure that sizes are so divided that market is not affected.”
But the plaintiffs/opposite parties No. 1 and 2 miserably failed to keep their commitment. As a consequence, by letter dated 24.01.2002, the defendant/appellant/petitioner wrote to the plaintiff/opposite party No. 2 as follows:
“Kindly refer to point No. 3 of our Minutes dated 10.10.2001 wherein it is abundantly clear that if agreed quantities at agreed prices are not lifted by you, we will have to introduce another channel for distribution in B’desh. But inspite of our follow up regularly, you could not open L/Cs for the quantities agreed by you in the months of October-December ’01 and we have no other option except to send the tyres through another channel as we cannot keep the market dry for months together.”
Even then, the plaintiffs/opposite parties No. 1 and 2 could not market the required quantity of tyres in the local market. In a meeting dated 11.04.2002, it was agreed between the defendant/appellant/petitioner and plaintiffs/opposite parties No. 1 and 2 as follows:
“3. Since the market as per X Tyres for tyres in Bangladesh is for higher quantity as compared to what K is taking, BT has the option to continue second party shipments.”
(g) Because of the continuous default and failure of the plaintiffs/opposite parties No. 1 and 2 to comply with their Distributorship Arrangements and the agreements in the subsequent meetings, the defendant/appellant/petitioner’s business was incurring huge financial loss. It was clear that the defendant/appellant/petitioner was incurring loss because of the plaintiffs/opposite parties No. 1 and 2’s failure to perform their obligations under the Distributorship Arrangements.
(h) In such a situation, to save their business in Bangladesh, the defendant/appellant/petitioner having no other alternative vide letter No. BT/RKS/2002-03/19095 dated 28.01.2003 cancelled/terminated the agency arrangement with M/s. Q Sales Corporation and the agreements with Z Aansh Trading Pvt. Ltd. and M/s. K International. The relevant portion of the letter of cancellation reads as follows:
“By virtue of this letter, all arrangements between you and your importers/distributors in Bangladesh viz. M/s. Z Aansh Trading Pvt. Ltd. and M/s. K International stands cancelled and necessary information may please be given by you to all the concerned.”
In reply, M/s. Q Sales Corporation by letter dated 30.01.2003 informed the defendant/appellant/petitioner as follows:
“We are very sorry to receive your letter No. BT/RKS/2002-03/19095 dt. 28.01.2003 cancelling our agreement regarding export of tyres to Bangladesh.
As desired by you, we have already intimated M/s. Z Aansh Trading Ltd. and M/s. K International regarding the above cancellation.”
(i) Upon termination of the distributorship of the plaintiffs/opposite parties No. 1 and 2, no X Brand tyre product has been imported by them in Bangladesh. In order to run its business in Bangladesh, the defendant/appellant/petitioner appointed M/s. Dye Tex International and M/s. Solar Trading Company as their distributors in Bangladesh as stated above.
(j) When the defendant/appellant/petitioner was regaining its tyre business in Bangladesh, they all on a sudden saw notices published in various newspapers regarding Title Suit No. 276 of 2003 in the 2nd Court of Senior Assistant Judge, Dhaka filed by the plaintiffs/opposite parties No. 1 and 2. From the plaint and the petition filed in the said suit, it is apparent that by misleading the learned Court below and by misrepresentation and suppression of materials facts, the plaintiffs/opposite parties No. 1 and 2 has obtained an ad-interim injunction and mandatory ad-interim injunction against, inter alia, the defendant/appellant/petitioner. As a consequence, the defendant/appellant/petitioner is incurring huge financial and business loss each and every day.
(k) The plaintiffs/opposite parties No. 1 and 2 misrepresented the order of the learned Court in Title Suit No. 276 of 2003 and published the following notice in various newspapers on 11.08.2003:
“On the prayer of the plaintiffs, Z Aaansh Trading (Pvt.) Limited and K International in Title Suit No. 276 of 2003, the learned Court of 2nd Assistant Judge, Dhaka has passed an injunction on 9.8.2003 to the effect that that no one except the plaintiffs can import, sell and market Indian X Brand Tyre Products in Bangladesh.
In such a situation, no one except my clients Z Aaansh Trading (Pvt.) Limited and K International has legal right to import, sell, market X Brand Tyre Products. If such products are found in possession of any other person, my clients shall be compelled to take all required legal steps including confiscation of the products.” (The original Legal Notice is in Bengali)
By publishing the above-mentioned misleading and misrepresented Legal Notice in various newspapers, the plaintiffs/opposite parties No. 1 and 2 have virtually stopped the sale and marketing of X Brand Tyre Products in Bangladesh thereby causing serious loss and injury to the defendant/appellant/petitioner. All the importers, dealers, retailers and wholesalers of X Brand Tire Products have stopped selling and marketing the Products in the market after seeing the misleading Legal Notice in the newspapers.
17. That it is submitted that it is well-settled principle of law that injunction cannot be granted in case of violation of contract for which adequate remedy can be had through compensation. In the instant case the plaintiffs/respondents/opposite-parties Nos. 1 and 2 have already filed Money Suit No. 53 of 2003 in the Court of 1st Joint District Judge, Dhaka against the defendant/appellant/petitioner for realisation of Tk. 56,47,45,127.00 only. As such the Court of Additional District Judge, in refusing to pass any order either allowing or rejecting the application for stay operation of the ex-parte ad-interim mandatory injunction, has committed an error of an important question of law resulting in erroneous decision occasioning failure of justice, hence the order of ex-parte ad-interim mandatory injunction is liable to be set aside.
18. That it is submitted that the learned Assistant Judge has committed error of law in not considering that since the distributorship of the plaintiffs/respondents/opposite-parties Nos. 1 and 2 has been terminated, any loss suffered by them can be compensated in terms of money and as such no mandatory injunction can be granted. As such the Court of Additional District Judge, in refusing to pass any order either allowing or rejecting the application for stay operation of the ex-parte ad-interim mandatory injunction, has committed an error of an important question of law resulting in erroneous decision occasioning failure of justice, hence the order of ex-parte ad-interim mandatory injunction is liable to be set aside.
19. That it is submitted that the learned Assistant Judge has committed error of law in not considering that the distributorship of the plaintiffs/respondents/opposite-parties Nos. 1 and 2 having been terminated or cancelled, they cannot have prima facie case. Thus the learned Court of Assistant Judge has committed error of law in granting ex-parte ad-interim mandatory injunction while no prima facie case was present. As such the Court of Additional District Judge, in refusing to pass any order either allowing or rejecting the application for stay operation of the ex-parte ad-interim mandatory injunction, has committed an error of an important question of law resulting in erroneous decision occasioning failure of justice, hence the order of ex-parte ad-interim mandatory injunction is liable to be set aside.
20. That it is submitted that the learned Court of Assistant Judge has committed error of law in not considering that an order of ex-parte ad-interim mandatory injunction will close down the entire business of the defendant/appellant/petitioner in Bangladesh, as such the balance of convenience and inconvenience cannot be in favour of the plaintiffs/respondents/opposite-parties Nos. 1 and 2. As such the Court of Additional District Judge, in refusing to pass any order either allowing or rejecting the application for stay operation of the ex-parte ad-interim mandatory injunction, has committed an error of an important question of law resulting in erroneous decision occasioning failure of justice, hence the order of ex-parte ad-interim mandatory injunction is liable to be set aside.
21. That being aggrieved by and dissatisfied with the refusal by the learned Court of Additional District Judge, 2nd Court, Dhaka to pass any order either allowing or rejecting the application filed by the defendant/appellant/petitioner in Miscellaneous Appeal No. 299 of 2003 for stay operation of the order No. 5 dated 14.08.2003 passed by Mr. Md. Yousup Ali, Assistant Judge, 2nd Court, Dhaka in Title Suit No. 276 of 2003 granting ex-parte order of ad-interim mandatory injunction under Order XXXIX, Rule 1 and 2 read with section 151 of the Code of Civil Procedure, the defendant/appellant/petitioner above named begs to file this revisional petition on the following amongst other –
GROUNDS
I. For that in the facts and circumstances of the case the learned Assistant Judge has committed serious error of law in granting the order of ex-parte ad-interim mandatory injunction which has resulted in an error in the decision occasioning failure of justice and as such the said order is liable to be set aside and the Court of Additional District Judge, in refusing to pass any order either allowing or rejecting the application for stay operation of the ex-parte ad-interim mandatory injunction, has committed an error of an important question of law resulting in erroneous decision occasioning failure of justice.
II. For that the defendant/appellant/petitioner having appeared in the suit on 12.08.2003, the learned Court of Assistant Judge committed serious error of law in granting ex-parte ad-interim mandatory injunction on 14.08.2003 without giving an opportunity of hearing to the defendant/appellant/petitioner and as such the Court of Assistant Judge has committed serious error of law in granting the ex-parte ad-interim mandatory injunction and the Court of Additional District Judge, in refusing to pass any order either allowing or rejecting the application for stay operation of the ex-parte ad-interim mandatory injunction, has committed an error of an important question of law resulting in erroneous decision occasioning failure of justice, hence the order of ex-parte ad-interim mandatory injunction is liable to be set aside.
III. For that the learned Court of Assistant Judge has committed serious error of law in not considering the well-settled principle of law that injunction cannot be granted in case of violation of contract for which adequate remedy can be had through compensation and thus committed error of law resulting in an error in the decision occasioning failure of justice and the Court of Additional District Judge, in refusing to pass any order either allowing or rejecting the application for stay operation of the ex-parte ad-interim mandatory injunction, has committed an error of an important question of law resulting in erroneous decision occasioning failure of justice, hence the order of ex-parte ad-interim mandatory injunction is liable to be set aside.
IV. For that the learned Court of Assistant Judge has committed error of law in failing to consider that the plaintiffs/respondents/opposite-parties Nos. 1 and 2 having already filed Money Suit No. 53 of 2003 in the Court of 1st Joint District Judge, Dhaka against the defendant/appellant/petitioner for realisation of Tk. 56,47,45,127.00 only, they cannot be entitled to any ex-parte ad-interim mandatory injunction against the defendant/appellant/petitioner and the Court of Additional District Judge, in refusing to pass any order either allowing or rejecting the application for stay operation of the ex-parte ad-interim mandatory injunction, has committed an error of an important question of law resulting in erroneous decision occasioning failure of justice, hence the order of ex-parte ad-interim mandatory injunction is liable to be set aside.
V. For that the learned Court of Assistant Judge has committed error of law in not considering that since the distributorship of the plaintiffs/respondents/opposite-parties Nos. 1 and 2 has been terminated, any loss suffered by them can be compensated in terms of money and as such no mandatory injunction can be granted and the Court of Additional District Judge, in refusing to pass any order either allowing or rejecting the application for stay operation of the ex-parte ad-interim mandatory injunction, has committed an error of an important question of law resulting in erroneous decision occasioning failure of justice, hence the order of ex-parte ad-interim mandatory injunction is liable to be set aside.
VI. For that the learned Assistant Judge has committed error of law in not considering that the distributorship of the plaintiffs/respondents/opposite-parties Nos. 1 and 2 having been terminated or cancelled, they cannot have prima facie case and thus the learned Court of Assistant Judge has committed error of law in granting ex-parte ad-interim mandatory injunction while no prima facie case was present and the Court of Additional District Judge, in refusing to pass any order either allowing or rejecting the application for stay operation of the ex-parte ad-interim mandatory injunction, has committed an error of an important question of law resulting in erroneous decision occasioning failure of justice, hence the order of temporary injunction is liable to be set aside.
VII. For that the learned Court of Assistant Judge has committed error of law in not considering that an order of ex-parte ad-interim mandatory injunction will close down the entire business of the defendant/appellant/petitioner in Bangladesh, as such the balance of convenience and inconvenience cannot be in favour of the plaintiffs/respondents/opposite-parties Nos. 1 and 2 and the Court of Additional District Judge, in refusing to pass any order either allowing or rejecting the application for stay operation of the ex-parte ad-interim mandatory injunction, has committed an error of an important question of law resulting in erroneous decision occasioning failure of justice, hence the order of temporary injunction is liable to be set aside.
VIII. For that the impugned order is otherwise illegal and liable to be set aside.
22. That it is submitted that important question of law is involved in the instant revisional petition and as such the defendant/appellant/petitioner prays for leave of this Hon’ble Court to file the instant revisional petition as required under section 115(4) of the Code of Civil Procedure, 1908 [As amended up to date].
23. That it is submitted that because of the recent amendment of section 115 of the Code of Civil Procedure it is necessary that leave be granted to file the instant revisional petition. It is also submitted that this is the first case of the present nature and a decision from this Court would act as future guidance for the Court below.
24. That it is submitted that the instant revisional petition arises out of Title Suit No. 276 of 2003 pending in the Court of Assistant Judge, 2nd Court, Dhaka and another Civil Revision has been filed in this Hon’ble Court which has also arisen out of the said suit. As such the instant Civil Revision may be heard analogously with the said Civil Revision.
Wherefore, it is most humbly prayed that the Hon’ble Court may graciously be pleased to
a) Grant leave to file the instant revisional petition;
b) Call for the records of Miscellaneous Appeal No. 299 of 2003 pending in the Court of Additional District Judge, 2nd Court, Dhaka and issue Rule calling upon the plaintiffs/opposite parties Nos. 1 and 2 to show cause as to why the order No. 5 dated 14.08.2003 passed by Mr. Md. Yousup Ali, Assistant Judge, 2nd Court, Dhaka in Title Suit No. 276 of 2003 granting ex-parte order of ad-interim mandatory injunction under Order XXXIX, Rule 1 and 2 read with section 151 of the Code of Civil Procedure shall not be set aside, and after perusal of the records, hearing of the parties and cause shown, if any, make the Rule absolute;
c) Pending hearing of the Rule, stay operation of the order No. 5 dated 14.08.2003 passed by Mr. Md. Yousup Ali, Assistant Judge, 2nd Court, Dhaka in Title Suit No. 276 of 2003 granting ex-parte order of ad-interim mandatory injunction under Order XXXIX, Rule 1 and 2 read with section 151 of the Code of Civil Procedure till disposal of the Rule;
d) Cost of the proceeding be awarded in favour of the defendant/appellant/petitioner; and
e) Pass such other or further order or orders as may be deemed fit and proper.
And for this act of kindness the defendant/appellant/petitioner as in duty bound will ever pray.
AFFIDAVIT
I, ________________________ son of __________________________ of 2, R. K. Mission Road (Beside Ittefaq), Dhaka, aged about ________years, by occupation businessman, by faith ___________, nationally Bangladeshi, do hereby solemnly affirm and say as follows:
01. That I am the constituted attorney of the defendant/appellant/petitioner 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 ___________ day of ___________ at _______ a.m. | Advocate | |
| Commissioner of Affidavits
Supreme Court of Bangladesh High Court Division |
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