Abul Kashem Vs. Executive Engineer and others, 53 DLR (2001)186

Case No: Civil Revision Nos. 994, 2160, 2161, 2162 of 1998

Judge: AK Badrul Huq,

Court: High Court Division,,

Advocate: Syed Ziaul Karim ,,

Citation: 53 DLR (2001)186

Case Year: 2001

Appellant: Abul Kashem

Respondent: Executive Engineer and others

Subject: Professional Misconduct,

Delivery Date: 2000-1-26

 
Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
AK Badrul Huq J
 
Abul Kashem
……………Petitioner
Vs.
Executive Engineer & others
……………Opposite Parties
 
Judgment
January 26, 2000
 
Code of Civil Procedure (V of 1908)
Order XIV rule I
It is a long standing practice of this court that no newly engaged lawyer could act on behalf of any party without the consent of the previously engaged lawyer and the newly engaged lawyer can only act taking consent of the previously engaged lawyer.
 
Lawyers Involved:
Syed Ziaul Karim, with Md Salauddin Talukder and Syeda Maimuna Begum, Advocates—for the Petitioner.
A Hasib with MA Tariq, Advocates—for the Opposite Parties.
 
Civil Revision Nos. 994, 2160, 2161, 2162 of 1998.
 
JUDGMENT
 
AK Badrul Huq J.
 
By these four applications, the defendant opposite party Nos.3-5 of four Civil Revision Cases arising out of four Civil Revision Petitions under section 115 of the Code of Civil Procedure seek vacating the order dated 2-11-1999 recorded by a learned Single Judge disposing of Civil Revision cases in terms of conditions laid down in paragraph No.4 of a petition of compromise allegedly between the plaintiff-petitioner of the four Civil Revision cases and the defendant-opposite-party Nos.3-5 of the said Revision cases. The four applications have been sent to me by the Honorable Chief Justice for disposal. The four applications for Civil Revision cases are being disposed of by this common Judgment and order.
 
2. The genesis of the essential facts forming the background of four petitions may succinctly be stated which are as follows:
Petitioner of the four Civil Revision Petitions Abul Kashem as plaintiff laid a suit being Title Suit No. 361 of 1993 in the First Court of Assistant Judge, Dhaka, for declaration that the Mutation Case No. 99 of 1987-88 filed by the defendant No.1 in the office of defendant No.2 for cancellation of Mutation in the name of the plaintiff in respect of property mentioned in the schedule to the plaint and all actions taken on such petition in the said mutation case by defendant No. 2 are illegal and also for declaration of title in respect of the schedule property. The plaintiff is alleged to have acquired ownership and possession on the suit property by way of Heba-bil-ewaz deed dated 1-3-1986. It is asserted by the plaintiff that he had been residing on the property with members of his family and constructed different shops.
 
3. The defendant Nos.1 and 2, 3-5, 6 and 7 resisted the suit by presenting separate written statements.
 
4. The learned Additional Assistant Judge awarded decree in favour of the plaintiff. The judgment and decree is dated 10-11-1995. Against the said judgment and decree defendant Nos.1, 2, 3, 5, 6 and 7 presented four separate appeals being Title Appeal Nos.16 of 1996, 29 of 1996, 28 of 1996 and 56 of 1996 before the Learned District Judge, Dhaka. All the appeals were heard analogously and disposed of by one judgment. The learned Subordinate Judge heard the appeal and by the judgment and decree dated 5-2-1998 allowed the four appeals, set aside the judgment and decree recorded by the learned Additional Assistant Judge and dismissed plaintiff’s suit. The plaintiff felt dissatisfied with the above judgment and decree recorded by the learned Appellate Judge and approached this court in four Civil Revision Petitions under section 115 of the Code of Civil Procedure and obtained Rules. The Civil Revision Petitions has been numbered as Civil Revision No.994 of 1998, 2160 of 1998, 2161 of 1998 and 2162 of 1998. All the Civil Revision petitions were ordered to be heard and disposed of analogously.
 
5. The plaintiff-petitioner and the defendant opposite party Nos.3 to 5 were alleged to have presented a petition for compromise before this court for effecting compromise in terms of conditions detailed in paragraph No.4 of the said petition. The learned Single Judge on the basis of that petition for compromise disposed of all the four Civil Revision Cases in terms of the condition laid down in paragraph No.4 of the petition of compromise. The petition of compromise was registered on 26-8-1999 vide entry No. 35200 but the affidavit has been sworn on 28-10-99.
 
6. The defendants opposite party Nos.3-5 now challenge the genuineness of the petitions of compromise allegedly executed by them on presenting applications before this Court for vacating the order dated 2-11-1999 by which the Rules issued in all the Civil Revision Cases were disposed of in terms of condition contained in the petition of compromise. In the petitions it is stated that the defendants-opposite party Nos.3-5 appeared in all the Civil Revision Cases through Mr. Syed Ziaul Karim, the learned Advocate by way of Vakalatnama. It is further stated that Mr. Mir Abul Quasem, the Learned Advocate on 26-8-1999 filed an application for effecting compromise on behalf of the defendants-opposite parties jointly with the plaintiff-petitioner and this court disposed of all the Civil Revision Cases by the order dated 2-11-1999. The defendants-opposite party Nos.3-5 came to know about the order dated 2-11-1999 recorded by this court from his relation Mohsin Hossain, and, thereafter, he informed the matter to his learned Advocate Mr. Syed Ziaul Karim who on perusal of the record on 23-12-1999 became sure about the compromise matter. It is asserted that the defendant opposite party Nos. 3-5 never engaged Mr. Mir Abul Quasem, the learned Advocate to conduct the Civil Revision Cases although he appeared in the courts below on their behalf. It is further stated that the defendant-opposite party No.3 Golam Sattar had never sworn Affidavit in the application for compromise and his signature had been forged and the Affidavit was sworn fraudulently in the name of defendant opposite party No. 3, Golam Sattar. It is also asserted that the defendants opposite party Nos. 3-5 had no knowledge about the so-called compromise and by practicing fraud the applications for compromise were presented before this court and the copy of the said application was not served upon the learned Advocate Mr. Syed Ziaul Karim. The learned Advocate Mr Mir Abul Quasem did not obtain. No objection certificate from the learned Advocate Mr Syed Ziaul Karim to appear on behalf of the defendants-opposite party Nos. 3-5 and on the basis of the said application Mr. Mir Abul Quasem, the learned Advocate misled this Court. It is stated that the defendants-opposite party Nos. 3 would be highly prejudiced if the order is not vacated.
 
7. The said petitions were hotly resisted by the plaintiff-petitioner on presentation of an counter-affidavit. In the counter-affidavit it is stated that the defendants-opposite party Nos. 3-5 had amicably settled the dispute in presence of their lawyer who had conducted the Case in the lower court and in pursuance of the settlement filed the compromise petition and the court was pleased to dispose of the matter in terms of the condition contained in the compromise petition. It is asserted that defendants-opposite party Nos. 3-5 took Taka 2,00,000.00 to sell some more land after the said compromise. It is stated that no ground had been assigned in the petition for vacating the order recorded by this Court.
 
8. Mr. Syed Ziaul Karim, the originally engaged Advocate for the defendants-opposite party Nos. 3-5, appeared in support of the present petitions. Mr Mir Quasem learned Advocate on whose signature the compromise petition had been laid before this court, is also present in the court. The plaintiff-petitioner is represented by Mr A Hasib assisted by Mr. MA Tariq, the learned Advocates.
 
9. Heard the Learned Advocate, perused examined the Order Books of Civil Revision Petitions and all papers in the record and other materials placed before me. I had also examined the defendant opposite party No. 3 Mr. Golam Sattar and obtained his signatures both in English and Bengali in open Court for the purpose of comparing his signature taken in open court and the signature appearing in the Vakalatnama executed by him empowering Mr. Syed Ziaul Karim as his Lawyer to conduct the Civil Revision Cases and also his signature appearing in the Vakalatnama allegedly executed by him empowering Mr. Mir Abul Quasem, the Learned Advocate to effect compromise as well as the signature appearing in the petitions of compromise and the Affidavit.
 
10. On a perusal of the Order Book and record it appears that Mr. Syed Ziaul Karim filed Power on behalf of defendants-opposite party Nos. 3-5 in all the four Civil Revision Cases. It also reveals that Mr. SM Rezaul Karim, the Learned Assistant Attorney-General entered appearance on behalf of defendants opposite party Nos.1 and 2. It transpires that Zakir Hossain, defendant No.6 opposite party also entered appearance in the Civil Revision Cases by filing power on engaging Mr. Md. Alim Hossain, the learned Advocate. From the Order Books, it is manifest that on 8-12-1998 the matters were taken up for hearing and heard in part, and, thereafter adjourned till 6-1-1999. I am informed by the Learned Advocate for the defendants-opposite party Nos. 3-5 that the court who heard the matter in part not retains the jurisdiction to hear Civil Single Bench matter since 2nd day of January, 1999. It appears that one application for effecting compromise with the signatures of the parties had been flied in Civil Revision Case No. 994 of 1998 and in other three Civil Revision Cases; photocopies of the compromise petition had been filed. It further reveals that the learned Single Judge accorded permission to file three photocopies of the compromise petition in three Civil Revision Petitions.
 
11. Mr. Ghulam Sattar, defendant-opposite party No.3 is the constituted Attorney for and on behalf of defendants-opposite party Nos.4 and 5 who .are his full brothers and full sister respectively. Examined the signature appearing in Vakalatnama executed by defendant-opposite party No. 3 Ghulam Sattar empowering Mr Syed Ziaul Karim, the learned Advocate and also the signature appearing in Vakalatnama empowering Mr Mir Abul Kashem, the learned Advocate and also his signature appearing in the petition for compromise as well as in the Affidavit. Examined his signature taken in open Court in my presence. On a cross-examination and scrutiny of the signature of Ghulam Sattar it appears that the style, habit and the mode of writing in the signature appearing in the Vakalatnama executed by Ghulam Sattar empowering Mr Syed Ziaul Karim, the Learned Advocate and the signature taken in open Court in my presence is exactly the same but his signature appearing in the Vakalatnama allegedly executed by Ghulam Sattar empowering the learned Advocate Mr Mir Abul Quasem and the signature appearing in the petition of compromise manifestly appear to be dissimilar with the signature taken in open court in my presence. In the Vakalatnama empowering Mr Abul Kashem by Ghulam Sattar the alleged signatures are both in Bengali and English. Signature in English is “Golam Sattar” and not “Ghulam Sattar”. In the petition of compromise the signature is in Bengali and ‘G’ ‘V’ is written in another pen and ink. From the above it can be easily said that defendant-opposite party No. 3 Ghulam Sattar did not engage Mr Mir Abul Kashem as his lawyer and also put his signature in the petition of compromise.

12. Another aspect cannot be also ignored. It appears that defendants opposite party Nos.1 and 2 Executive Engineer and Assistant Commissioner (Land) contested the suit by presenting written statement and also challenged the correctness of the decisions recorded by the learned Trial Judge in awarding a decree in favour of the plaintiff- petitioner. Defendant opposite party No.6 Mr Zakir Hossain also contested the suit and also preferred a separate appeal having felt dissatisfied with the decisions recorded by the learned Trial Judge. The defendant-opposite party Nos.1 and 2 and defendant opposite party No. 6 entered appearance by engaging Lawyers but these defendants-opposite parties were not al all parties of compromise. It is not that all the defendant-opposite parties entered into compromise with the plaintiff-petitioner. In that event, the matter would have been otherwise. But the Civil Revision petitions could not have been disposed of in the absence of other contesting defendants-opposite parties; at least, the petition of compromise could have been kept with the record for consideration at the time of hearing of the Civil Revision Petitions.
 
13. Now coming to a vital aspect of the matter which is the engagement of Mr. Mir Abul Quasem as the Lawyer of the defendants-opposite party Nos. 3-5 without the consent of the previously engaged lawyer Mr. Syed Ziaul Karim, it appears that the Learned Advocate Mr. Mir Abul Quasem did not even care to take consent from the previously engaged lawyer Mr. Syed Ziaul Karim. It is long standing practice of this Court that no newly engaged Lawyer could and can act on behalf of any party without the consent of the previously engaged Lawyer by the party and the newly engaged Lawyer can only act for the party taking consent from the previously engaged Lawyer. From this point of view also Mr. Mir Abul Quasem got no legal authority to accept Vakalatnama and to present petitions of compromise for and on behalf of the defendant opposite party Nos.3-5.
 
14. On an overall view and picture in the four Civil Revision Petitions presented before this Court it appears that fraud had been practised upon this Court in obtaining an order of compromise.
 
15. The question now comes; can the Court be so powerless to set aside or knock down or vacate any order or judgment which was obtained by misleading the court and on practicing fraud upon it. The answer must be in the firm negative. It is well settled that if an order is obtained through misrepresentation and fraud upon the Court, in the exercise of its inherent power under section 151 of the Code of Civil Procedure this court can set things right, even suo motu, if it comes to the notice of the Court. Section 151 of the Code of Civil Procedure does not formulate any new doctrine but only a legislative recognition of the well known doctrine and principle, that every Court has inherent power ex debito justitiae and to do that real justice for the administration of which alone it exists. Under Section 151 of the Code all Courts including this Court ex debito justitiae according to equity, justice and good conscience. The section does not confer any new power on the court but only saves inherent power to pass orders necessary for the ends of justice or to prevent abuse of the process of the Court. The view taken by me is fortified with plethora of authorities of all the upper courts of this sub-continent.
 
16. I have given my dispassionate consideration and thought over the facts and circumstances and I am of this considered view that justice demands that the orders dated 2-11-1999 recorded by Learned Single Judge disposing of the four Civil Revision Cases in terms of petitions of compromise are liable, to be vacated and all the four Civil Revision. Cases may be posted for hearing.
 
On conspectus the four applications presented by the defendant-opposite party Nos.3-5 in four Civil Revision Cases being Civil Revision No. 994 of 1998, 2160 of 1998, 2161 of 1998 and 2162 of 1998 are allowed and the orders dated 2-11-1999 by the Learned Single Judge disposing of four Civil Revision Cases in terms of conditions contained in the petitions of compromise stand re-called and vacated. The petitions of compromise presented in four Civil Revision Cases stand rejected. All the Civil Revision Cases are posted for hearing, if these are otherwise ready. The Learned Advocates either for the petitioner or for the opposite parties mention the matters for fixing a date of hearing.
 
Ed.