Case No: Civil Appeal No. 99 of 1983
Judge: Badrul Haider Chowdhury,
Court: Appellate Division ,,
Advocate: Md. Serajul Huq,Mr. Fazlul Karim,,
Citation: 36 DLR (AD) (1984) 153
Case Year: 1984
Appellant: Abdul Huque
Respondent: Mrs. Zainab Begum & others
Subject: Civil Law,
Delivery Date: 1983-12-4
FKMA Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Chowdhury ATM Masud J
Syed Md. Mohsen Ali J
Mrs. Zainab Begum & others
December 4, 1983.
The Civil Procedure Code, 1908
Consequence of Transfer of Business of Court
The transferred Court shall have the same power and “shall perform the same duty as those respectively conferred and imposed by order under this Code or the Court from which the business was so transferred.” However, the transferee court must have jurisdiction to adjudicate upon the subject matter of the dispute…………(6)
Fazlul Karim, Senior Advocate, instructed by M.S. Zoha Chowdhury, Advocate-on-Record—For the Appellant.
Serajul Huq, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record— For the Respondent No. 1.
Civil Appeal No. 99 of 1983.
(From the Judgment and decree dated 9.12.82 passed by the High Court Division in F.M.A. No. 332 of 1981.)
Badrul Haider Chowdhury J.
Leave was granted to consider the question whether the expression "Court granting an injunction" in rule 2(3) of Order 39 of the Code of Civil Procedure would mean "the Court" to which the whole case has been transferred or it would mean the Court which originally issued the injunction for taking cognizance in a matter of violation of injunction.
2. A suit for specific performance of contract was filed in the Court of Subordinate Judge, 1st Court, Dhaka. Plaintiff also filed an application for injunction and on 3.12.74 the order of injunction was issued and on 7.2.75 the said order was made absolute by the Subordinate Judge, 1st Court Dhaka. Thereafter on 14.1.76 the learned District Judge transferred the said suit to the Court of Subordinate Judge, 5th Court for disposal. On 10.2.78 an application under Order 39 rule 2(3) of the Code was filed for drawing up the proceeding against the appellant and also prayed for attachment of their property. This petition was marked as Miscellaneous Case No. 9 of 1978. The learned Subordinate Judge 5th Court found the appellant guilty and recorded an order of conviction for disobedience of the order of the Court. The appellant contended before the High Court Division unsuccessfully that the order of conviction was illegal inasmuch as the 5th Court was not the original Court which issued the injunction. Leave as aforesaid was granted to consider this point.
3. Sub-rule (3) of rule 2 of Order 39 in material for the purpose of this appeal:
In case of disobedience, or of breach of any such terms the Court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached and may also order such person to be detained in the civil prison for a term not exceeding six months unless in the meantime the Court directs his release".
4. Mr. Fazlul Karim, the learned Counsel contended that the sub-rule (3) specifically mentioned the court granting an injunction can take cognizance of disobedience but a transferee court cannot do so as such power has not been conferred by law. The learned Counsel placed before us the amendment that was made in 1976 in India. Order 39 had been amended by the Code of Civil Procedure (Amendment) Act of 1976 and sub-rules (3) and (4) had been omitted and a new rules 2(a) had been asserted. Rule 2 (a) as under:
The learned Counsel argued that since there was confusion in India amongst the various High Courts the Legislature had thought it fit to insert by amendment the clause ''or any court to which the suit or proceeding is transferred". Since in our law no such amendment had been made the confusion persists and since such power has not been granted to the transferee court specifically the order of conviction recorded by the transferee court is illegal and without jurisdiction.
5. The argument is attractive, no doubt, but does not bear scrutiny. Section 2(1) says "Code" includes rules and 2(18) defines rules "meaning" rules and forms contained in the 1st Schedule or made under section 122 or 125. Rule 2(3) of Order 39 is such a rule. Section 122 is the rule making power for regulating the procedure of subordinate courts and such rules have been framed by the High Court Division. Section 150 is in the following terms:—
6. When the Code specifically has provided the consequence of transfer of business by a section, namely, 150 the rules in the 1st Schedule cannot operate inconsistently with the section. It is thus clear that the transferred court shall have the same power and ''shall perform the same duty as those respectively conferred and imposed by order under this Code or the Court from which the business was so transferred". The amendment of the rule has been made in India, no doubt, to remove the very confusion as the learned Counsel himself has stated that the consistent view of the High Court of Madras and Patna was that the transferee court can perform the same function of the original court whereas the Calcutta High Court took a view that the original court retains the jurisdiction insofar as violations are concerned. Without expressing any view on the reasonings of the Indian courts, we respectfully point out that section 150 is the complete answer and the amendment was made for the removal of doubts which emerged in view of Patna, Madras and Calcutta decisions. This amendment may be done as abundant caution. When the scheme of the Code is looked into and the specific sections 121 and 122 read with 128 make it clear that section 150 is intended to be decisive. In this view of the matter the opinion is that the transferee court has jurisdiction to pass necessary orders in case of violation of an injunction order passed by a Court other than when such matter has been transferred.
In the result therefore this appeal is dismissed. No costs.