Bangladesh Vs. Abdul Wadud and others, 25 DLR (SC) (1973) 90

Case No: Civil Appeal No. 50-D of 1968

Judge: Mahmud Husain,

Court: Appellate Division ,,

Citation: 25 DLR (SC) (1973) 90

Case Year: 1973

Appellant: Government of Bangladesh

Respondent: Abdul Wadud and others

Subject: Ex-parte Decree,

Delivery Date: 1972-11-30

 
Supreme Court
Appellate Division
(Civil)
 
Present:
A.M. Sayem, CJ.
Mahmud Hussain, J.
A. Jabir, J.
 
Bangladesh
................................Appellant
Vs.
Abdul Wadud and others
................................Respondents
 
Judgment
November 30, 1972.
 
Ex-parte decree
The plaint is no evidence for the proof of the plaintiff’s case. The plaintiff is not entitled to obtain ex parte decree without producing the relevant documents on the basis of which relief is sought for…………(16 and 18)
 
Lawyer Involved:
M. H. Khandakar, Attorney-General, instruc­ted by Abdul Matin Khan Chowdhury, Advocate-on- Record—For the Appellant.
Ahmed Sobhan, Senior Advocate, instructed by Abu Backkar, Advocate-on-Record—For the Res­pondent No. 1.
Ex-parte—Respondent Nos. 2-6.
 
Civil Appeal No. 50-D of 1968.
(On appeal from the judgment of the High Court dated 1.2.1967 in F.A. No. 114 of 1966.)
 
JUDGMENT
 
Mahmud Hussain J.
 
This appeal at the instance of the defendant No. 1 directed against the judgment and decree of the High Court dismissing the appeal filed by this appel­lant against the judgment and decree passed ex parte by the learned Subordinate Judge against the appellant.
 
2. The plaintiff filed the suit on 16.9.64 praying for a decree for a sum Tk. 1,99,567.00 with damages and interest on account of the works done by him on the facts stated in the plaint.
 
3. The plaintiff submitted tender which was accepted by defendant No. 6 (the Executive Engineer, C & B at present R & H, Road Division, Comilla) for executing and starting work at once as per schedules of the tender. The suit was filed against the erstwhile Provin­ce of East Pakistan as defendant No. 1 and five others who are Government servants.
 
4. The defendants entered appearance on 11.11.64 and prayed for time to file written statement. Thereafter on 27.3.65 the defendants filed a petition for time to file written statement and the learned Subordinate Judge passed the following order:—
 
"27.3.65.—Plff. files hajira. Defendants file petition for time to file W. S. Heard the pleader of the plff. The petition is not pressed by anybody. The defendants have already got about five months' time by 7 adjournments for filing w/s. The suit can­not be dragged indefinitely. The plaintiff has been opposing the prayer for further time. Considered prayer is allowed as a last chance. No further petition for time shall be entertained. The learned G. P. to note. To 10.4.65 for filing w/s or for disposal. Inform".
 
Thereafter on 10.4.65 the defendants filed a petition for time and the learned Subordinate Judge rejected the prayer and passed an ex-parte decree on the same date. The order runs thus:—
 
"10.4 65—Plff. files hajira. Defdt. files a petition for time to file W/S. Heard Ple­ader of the plff. The prayer is rejected in view of the previous order. Defdts. are found absent on call. Hence the suit is taken up for ex parte hearing. P.W. 1 Abdul Wadud is examined. Documents are marked Exts. 1, 2, 2(a), 2(b), 3-3(j) for the plff. claim is proved. C. F. are correct.
 
That the suit be decreed ex-parte with cost for Rs. 1, 72,317.70 only towards the balance dues including security de­posit money plus Rs. 27,250/00 as com­pensation. The defdts. are allowed 90 day's time to satisfy the decree in default the case shall be reported to the Provin­cial Govt. for orders.
Sd/- Illegible."
 
5. Defendant No. 1 filed an appeal before the High Court against the said ex-parte decree, but the learned Judges of the High Court dis­missed the appeal. As against that the defen­dant filed a petition for special leave to appeal and the erstwhile Supreme Court of Pakistan in granting leave passed the following order:—
 
"Leave is granted to consider whether there was evidence to sustain the decree awarded ex parte to the respondent, a building contractor, for a sum of about two lacs of rupees, against the Province of East Pakistan. The oral evidence consisted of the solitary statement of the res­pondent, who merely put in a series of demand notices and postal acknowledge­ments, as well as his "final bills". He did not even say that these bills were correct. Stay of execution of the decree is asked for. We note that there is no denial that work was done by the respondent, and that it was of considerable volume and further that the contractor had been doing works in excess of these required of him. These works were completed in 1962. The contractor is entitled to payment of a reasonable amount, pending decision of the question whether the Courts should determine the amount of work actually done, and the payment due in respect thereof.
 
We accordingly direct that the Govern­ment should deposit a sum of one lac of rupees in Court, to be paid to the respon­dent against a Bank guarantee for repay­ment if, and to the extent that, it is found that this amount represents an overpay­ment. The deposit to be made within a period of two weeks. A stay order in respect of the balance of the decretal amount will issue if and only if this con­dition is satisfied."
 
6. Mr. M. H. Khandkar, the learned At­torney-General appearing for the appellant contended that the learned Judges of the High Court erred in not holding that the minimum requirements of legal proof for sustaining an ex-parte decree were lacking in the facts and circumstances of the case and that the learned Judges of the High Court erred in holding that no ground could be pressed to show as to how the decree was hit by any provisions of law and that the learned Judges ought to have held that the decree suffered from inherent legal infirmity inasmuch as in the absence of the contract deed, the measurement books and the accounts in support, of the plaintiff's claim, there was no basis for the learned Subordinate Judge to have been satisfied as to the plaintiff's dues from the defendants and to pass an ex-parte decree for the same in full.
 
7. The learned Attorney-General drew our attention to the plaint and submitted that the averments made in the plaint have not been proved and then pointed out that the following salient features, unless proved by oral or docu­mentary evidence, an ex parte decree could not be passed.
 
Paragraph 3 of the plaint runs thus:—
 
"3. That tender was submitted by the plaintiff for the abovementioned work and it was the lowest one and was acc­epted by the Executive Engineer. C. & B, Comilla Roads Division, Comilla for executing and starting the work at once as per schedules of the tender (Vide his Memo. No. 808-CDR/ Dated 31st March in 1962 at the rate of Rs. 100/00 One) hundred) per one thousand Cft. Earth necessary for the work was to be supp­lied by the plaintiff, who was also requested to submit duplicate tender".
 
It is pointed out by the learned Attorney-General that the plaintiff did not file the ten­der and the schedule thereof and he also did not state on oath that the rate was Rs. 100/00 per one thousand cft. on the basis of which he calculated his claim.
 
8. Exhibit 1 which is a letter issued by the Executive Engineer (defendant No. 6) in favour of the plaintiff shows that the tender submitted by the plaintiff was accepted by him and he directed the plaintiff to start the work in consultation with S. D. O. (Roads), Comi­lla and to submit duplicate tender with sche­dule of items for formal acceptance. The ten­der with schedule has not been produced and the exhibit does not contain the schedule as well and that no duplicate tender with schedule was filed before the Court and no oral evidence in support thereof has been adduced by the plaintiff who deposed in this case on the 10th April, 1965, It may be noted that this Exhibit 1 and other exhibits were also filed on the 10th April, 1965 when the ex-parte decree was passed. Exhibit 2 is a copy of notice under section 80 C. P. C. and Exhibit 2(a) is a letter from the plaintiff to the Executive Engineer dated the 17th September 1962 on the subject of payment of pending bills of Mainamati-Compayganj Road. Exhibit 2(b) is a letter by the Pleader for the plaintiff addressed to the Secretary, Railways, Waterways and Road Transport Department for payment of outstan­ding bills and Exhibit 3 series are the postal acknowledgement of letters issued on behalf of the plaintiff. So it is apparent that the plaintiff failed to prove his case with reference to the rate as well as the quantum of works required to be done by him.
 
The learned Attorney-General while making reference to paragraph 4 of the plaint pointed out the following statement:—
 
Plaintiff started work and submitted duplite tender which had been accepted.... The work was also duly completed, but as per verbal order of the Executive 'Engineer ...the plaintiff started additional work for bridge approach...... in continuation of and in excess of the original work of accep­tance of tender...The plaintiff by his le­tter No. C/214 dated 9.6.62 requested......to approve in writing the additional work of bridge approach..........which exceeded the original work by about twenty-one lakhs cft. of earth work which was also entrus­ted with the plaintiff. The aforesaid excess work was duly approved by the defen­dant No. 6 on 15.6.62...and the plaintiff was also verbally informed about the same through by Memo. No. 1533 dated 11.6.62 the Sub-Divisional Officer, C & B...directed the plaintiff to stop earth working in bridge approach....and submitted that these have not been proved either by oral or documentary evidence.
 
The learned Attorney-General further point­ed out, from paragraph 5 of the plaint the fol­lowing statement which also has not been pro­ved by any evidence:—
 
"The plaintiff thereafter by his No. C/-215 dated 23.6.62 informed the defendant No. 6...that measurement of the excess work done upto the date was taken and that the plaintiff is discontinuing the work"
 
10. The learned Attorney-General referr­ing to paragraph 6 of the plaint pointed out that the following averments in the plaint have not been proved by oral and documentary evi­dence:—
 
"...by Memo. No. 1793/2 dated 4.7.1962, ...and also as per verbal order...the plain­tiff was directed to resume the incomplete portion of the above work immediately ...The plaintiff resumed the work again, ...The Sub-Divisional Officer, C & B, ...dated 17.8.62 again requested the plain­tiff to stop the work at once...Plaintiff had thus to stop the work again suffering huge loss for which the defendants are fully liable and responsible".
 
11. It will appear from the evidence of the plaintiff that he completed the work on 20.8.62 although he made no such statement in the plaint. The plaintiff stated in the plaint that he had to stop the work as per prohibitory direction of the Sub-divisional Officer dated 17.8.62. So there is no scope for making out a case of completing the work on 20.8.62 unless it is so stated that he was allowed to complete the work after 17.8.62.
 
12. With reference to paragraph 7 of the plaint the learned Attorney-General pointed out that no date has been mentioned as to when the bill was submitted but it is in his evidence that such bill was submitted on 28.8.62. With reference to paragraph 8 of the plaint the lear­ned Attorney-General pointed out that no oral or documentary evidence have been adduced in support of the averments made therein that "Agreement No. E/46 of 1961-62 was entered in between the plaintiff and the Authority. The final bill for the work was entered in pages 22 to 29 of Measurement Book No. 648 on 202862."
 
13. Lastly, the learned Attorney-General pointed out with reference to paragraph 13 of the plaint that the plaintiff made a claim for recovery of Rs 1,99,567/00 from the defendants whereas the learned Subordinate Judge passed a decree for Rs. 1,99,567.70 paisa. This shows that there was no application of mind by the learned Subordinate Judge in passing a decree as the decree was in excess of the claim made by the plaintiff.
 
14. We have pursued the entire evidence on record and we find that the learned Attorney-General rightly pointed out that no proof ei­ther oral or documentary was given in support of the pleadings on the basis of which a decree could be passed.
 
15. The learned Attorney-General contended that the plaintiff must establish his claim before he can ask for relief from the Court. There are several averments made in the plaint and those averments need proof before any decree can be passed. That cause of action arising in the present case is dependant on a bundle of essential facts stated in the plaint by the plaintiff who is required to prove, if he wants to succeed in the suit. The fundamental principle of law is that the plaintiff must prove his case and such proof must be to the satisfaction of the Court.
 
16. The learned Attorney-General on re­ference to the case of Monmotha Kumar Roy Vs. Josada Lal Poddar and others reported in 28 C.W.N., 300 contended that it is the duty of the Court to consider the interest of the ab­sent party and not to pass a decree except on proof by the plaintiff. We are in agreement with the principle enunciated in the above case. When it is found from the plaint that different averments gave rise to the claim of the plaintiff and those are not proved with reference to do­cuments referred to in the plaint, then the plai­ntiff cannot get a decree from the Court. The mere absence of the defendant will not abso­lve the Court from the duty to examine as to whether the plaintiff’s claim is based on legal process. The only documentary evidence be­fore the Court is Exhibit 1 which does not dis­close the rate nor the quantum of the work.
 
17. The learned Counsel Mr, Ahmed Sobhan appearing for the respondent submitted with reference to Exhibit 2(copy of notice under section 80 C. P.C.) that the content thereof having not been challenged should be consi­dered as sufficient for the proof of the claim made by the plaintiff. We find it difficult to ac­cept such contention as the object of notice under section 80 C. P.C. is nothing but to give a chance to the authority to examine the claim of the plaintiff before such suit is filed and that such a notice can also be waived by the autho­rity. Notice under section 80 C. P.C. was man­datory before 1968 but it is no longer a mandatory provision in view of the substitution of the said section by Ordinance XLIV of 1962 (Code of Civil Procedure Amendment) Ordina­nce, 1962 and as such this by itself cannot be a proof of the claim made in the plaint. It may also be noted that the plaint contains nothing but the contents of this Exhibit 2, so the notice itself cannot be taken as a piece of evidence for the proof of the claim.
 
18. On analysis of the evidence with refe­rence to averments made in the plaint it is evi­dent that the plaintiff failed to prove his case in accordance with law. The plaint is no evi­dence for the proof of the case of the plaintiff. The absence of the defendant who asked for adjournment but refused on reasons assigned therefor cannot give occasion for the plaintiff to obtain ex parte decree without producing the relevant documents on the basis of which relief is sought for. The Court is bound to apply its mind with reference to the pleadings and satisfy itself as to what should be the proper proof for passing a decree on the basis of the averments made in the plaint. It appears to us that the Courts below considered the non-filing of wri­tten statement by the defendant after obtaining several adjournments absolved the Court from the responsibility to examine the legality of the claim of the plaintiff. The claim of the plaintiff is based on works which requires measurement and such measurement books and accounts were not filed, the bill on the basis of which claim is based was not before the Court and on the top of it, the schedule of work as per ten­der was not also before the Court for which the plaintiff was required to undertake the work and the rate of Taka 100/00 for the work of one thousand Cft. was not stated in evidence. So we find it difficult to hold that the exparte-decree can be sustained in law. The plaintiff admitted in evidence that he received Rs. 1, 06,843/00 on different dates and he filed the suit for the balance amount but there is no bill before the Court to justify the claim.
 
19. We consider for ends of justice that this case should be remanded to the trial Court for giving opportunity to the parties to prove their respective cases as it would be a hardship if the suit is dismissed on the footing that the plaintiff failed to prove his case in accordance with law.
 
In the result this appeal is allowed; the judgments and decree of the Courts below are set aside and the case is remanded to the trial Court for disposal in accordance with law.
 
In the circumstances of the case there will be no order as to cost.
 
Ed.