Case No: Civil Petition for Leave to Appeal No. 670 of 1995
Judge: Mohammad Abdur Rouf ,
Court: Appellate Division ,,
Advocate: Mr. Mahbubey Alam,Syed Ishtiaq Ahmed,AF Hassan Arif,,
Citation: 49 DLR (AD) (1997) 46
Case Year: 1997
Appellant: Abul Ahsan
Respondent: Pabna Chamber of Commerce and Industry
Subject: Procedural Law,
Delivery Date: 1996-1-16
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Md. Ismailuddin Sarker J.
Abul Ahsan, former President of the Chamber of Commerce and Industry, Pabna
Administrator of Pabna Chamber of Commerce and Industry and another
January 16th, 1996.
Code of Civil Procedure (V of 1908)
Order XXXIX rules 1 & 2
Interlocutory order by the High Court Division when passed upon hearing both the sides and in exercise of its discretion, unless the discretion has been exercised fancifully merits no consideration for interference. … (5)
Syed Ishtiaq Ahmed, Senior Advocate (Rokonuddin Mahmood, Senior Advocate with him) instructed by Shamsul Hoque Siddique, Advocate-on-Record—-- For the Petitioner.
AF Hassan Ariff, Deputy Attorney-General instructed by Sharifuddin Chaklader, Advocate-on-Record—For the Respondents.
Mahbubey Alam, instructed by Md. Sajjadul Huq, Advocate-on-Record-For the third party Petitioners.
Civil Petition for Leave to Appeal No. 670 of 1995.
Md. Abdur Rouf J:
The plaintiff-petitioner on 18-4-95 instituted Other Class Suit No. 104 of 1995 in the Court of Assistant Judge, Pabna Sadar (subsequently transferred to the Court of Senior Assistant Judge, Sujanagar, Pabna and as Other Class Suit No. 157 of 1995) praying for a declaratory decree that the letter dated 15-4-95 issued by the Ministry of Commerce dissolving Executive Committee of Pabna Chamber Commerce and Industry is illegal, void and of in legal effect. The application for temporary injunction was also filed thereunder for restraining defendant No. 2 (respondent No. 1 herein) from taking over the charge of the Office of the said Chamber of Commerce and Industry, pending disposal of the suit. The trial Court issued a notice for showing cause within 3 days as to why the temporary injunction as prayed for would not be granted. On 24-4-95 defendant No. 2 filed written objection against the prayer for temporary injunction. On 29-4-95 the plaintiff filed an application for mandatory injunction against defendant No. 2 for a direction to hand over charge of the said Chamber of Commerce and Industries to its Exec Committee before hearing of the suit. On 14-6-95 the plaintiff filed another application praying for temporary injunction against defendant No. 2 for restraining him from altering the membership list and from making any new member of the Organisation and the trial Court passed an order maintaining status quo in that respect until further order. On 25-6-95 the Court heard both the petition. On 27-6-95 by order No. 14 the application for mandatory injunction was rejected and by order No 15 of the same date the application for tempo injunction was also rejected. Then the plaintiff preferred Misc. Appeal No. 32 of 1995 before learned District Judge, Pabna on 28-6-95 against order No. 14 dated 27-6-95 for rejection of the prayer for temporary mandatory injunction. The appeal was allowed on 8-8-95 and after setting aside the order appealed against the case was sent back on remand for rehearing of the application for temporary mandatory injunction. On 14-8-95 the plaintiff filed two applications under Order 6 rule 17 read section 151 of the Code of Civil Procedure for amendment of plaint and the application for mandatory injunction. The trial Court allowed those applications and accordingly, the plaint was amended for incorporating a prayer for decree for mandatory injunction. On 1-11-95 the trial Court allowed the prayer for temporary mandatory injunction by order No. 38 in the following terms:
অতএব আদেশ হই যে, অত্র দরখাস্ত ২ নং বিবাদির বিরুদ্ধে দোতরফা সুত্রে এবং ১ নং বিবাদির বিরুদ্ধে একতরফা সুত্রে বিনা খরচায় মঞ্জুর হয়। গত ইং ১৯-৪-৯৫ তারিখের পুরবে স্থিতাবস্থা বহাল রাখার হুকুম হয় রিট ইস্যু করা হোক, আগামি ইং ৩-১-৯৬ তারিখে চূড়ান্ত বিচার।
Against that order defendant No. 2 preferred Misc. Appeal No. 66 of 1995 and the learned Subordinate Judge, First Court. Pabna heard the appeal and dismissed the same on 22-11-95 and affirmed the order appealed against where after defendant No. 2 moved the High Court Division under section 115 of the Code of Civil Procedure in revision. On 14-12-95 in presence of the plaintiff a Single Bench of the High Court Division issued a Rule in Civil Revision No. 4829 of 1995 and also stayed operation of the impugned order of temporary mandatory injunction pending disposal of the Rule, fixing the same to be heard on 21-1-96. Against the order of staying the operation of the impugned order of temporary mandatory injunction pending disposal of the Rule by the High Court Division the petitioner has sought for leave by this petition.
2. Syed Ishtiaq Ahmed learned counsel appearing for the petitioner submitted that the Pabna Chamber of Commerce and Industry is a Trade Organisation. Its affairs are conducted by an elective body as per rules framed under the Trade Organisations Ordinance, 1961 and its present committee being headed by the petitioner as its President was elected on 6-11-94 for three years from its first annual general meeting held on 18-12-94. Upon certain allegations raised against the former committee, the Deputy Commissioner, Pabna on 4-10.93 appointed one Magistrate, First Class to hold an enquiry into those allegations of financial irregularities, preparation of faulty voter list, etc. in connection with the said Trade Organization. Upon a report submitted thereto the Deputy Commissioner on 18-4-94 recommended to the Ministry of Commerce for appointment of an Administrator and dissolution of the Executive Committee of the said Trade Organisation. On 20-12-94 the present committee received a letter from the Ministry of Commerce to the effect that the committee had been dissolved because they had failed to give any reply to the show cause notice, issued earlier. On 22-12-94 the petitioner gave reply to the said letter stating, inter alia, that no such show cause notice had been served upon them. The petitioner on 4-1-95 further explained their position and as a result the Ministry of Commerce having been satisfied with the explanation submitted by the petitioner by their letter dated 5-2-95 allowed the present Committee to perform its normal functions with a direction to hold its election on due date. Thereafter suddenly the petitioner received the impugned letter dated 15-4-95 from the Ministry of Commerce and Industries regarding dissolution of the present committee and appointment of respondent No. 1 as its Administrator and cancellation of the letter issued on 5-2-95 which ultimately led the petitioner to institute the suit. The learned Counsel submitted that the learned Judge of the High Court Division erred in law in granting the impugned order of stay and has virtually decided the merit of the case. i.e., the effect of section 10 of the Trade Organizations Ordinance, 1961 and thereby granted the whole relief to respondent No. 1 before the hearing of the Civil Revision. The learned Counsel further submitted that on 14-12-95, the date of passing the impugned order the learned Judge of the High Court Division stayed operation of the impugned order for three days upon the petitioner’s prayer and accordingly after filing the Civil Misc. Petition No. 233 of 1995, the petitioner obtained from this Division an order of stay of the operation of the impugned order which is still in force. The learned Counsel ultimately prayed for a continuation of the order of stay, already granted by this Division pending disposal of the Civil Revision which has already been fixed by the High Court Division to be heard on 21-1-96.
3. Mr. AF Hassan Ariff learned Deputy Attorney-General appearing for the Caveator has not consented to this submission on the ground that the order of stay is likely to convey a signal to the High Court Division in a pending matter.
4. We have therefore heard the leave petition at length. Since both the suit and the Civil Revision are pending we refrain from touching upon the merit of the case.
5. Usually this Division is reluctant to interfere with an interlocutory order passed by the High Court Division, especially when such order is passed upon hearing both the sides and in exercise of its discretion, unless the discretion is exercised wholly unjudicially or is so palpably wrong that it shocks the judicial conscience. So far as the impugned order is concerned, we do not think that it answers any of the above exceptions and merits our interference. The petition is dismissed.
6. Mr. Mahbubey Alam, the learned Advocate Petitioners. on behalf of 3rd party petitioners has moved an application for addition of 631 persons as parties to the present leave petition stating, inter alia, that they are the member of the aforesaid Chamber of Commerce and Industry and their names have been included in the voter list and, as such, they are necessary parties in the instant proceeding. They have also filed an application for vacating order of stay granted by this Division on 18-12-94.
In view of our order passed in the leave petition both the petitions for addition of parties as well as for vacating the order of stay do not call for any further decision. Accordingly, those petitions are disposed of as not being necessary for deciding the questions raised therein.