Haji Golam Hossain Vs. Abdur Rahman Munshi and others, 40 DLR (AD) (1988) 196

Case No: Civil Appeal No. 6 of 1986

Judge: Badrul Haider Chowdhury,

Court: Appellate Division ,,

Advocate: Mr. Golam Rabbani,Mr. Mozzammal Huq,,

Citation: 40 DLR (AD) (1988) 196

Appellant: Haji Golam Hossain

Respondent: Abdur Rahman Munshi

Subject: Constitutional Law,

Delivery Date: 1986-03-17

Supreme Court
Appellate Division
(Civil)
 
Present:
F.K.M.A. Munim, CJ.
Badrul Haider Chowdhury, J.
Shahabuddin Ah­med, J.
M.H. Rahman, J.
A.T.M. Afzal, J.
 
Haji Golam Hossain
………….Appellant
Vs.
Abdur Rahman Munshi and others
………….Respondent
 
Judgment
March 17, 1986.
 
The Code of Criminal procedure (V of 1898),
Sections 439(4) and 439A(2)
The Constitution of Bangladesh, 1972
Article 102
No second revision lies in view of the law in Sections 439A (2) and 439(4) of the Code of Criminal Procedure. The constitutional mandate is that a writ jurisdiction can be invoked if the High Court Division is satisfied "that no other equally efficacious remedy is provided by law." In this view of the matter there is no hesitation in saying that the appellant had another remedy e.g. by instituting a suit in the competent court, the writ petition was inappropriate. The appeal is dismissed ……………..(6, 7 & 13)
 
Cases Referred to-
Shahjahan Sheikh and others Vs. The Sessions Judge, Pirojpur (Criminal Appeal Nos. 48 and 49 of 1985) 38 DLR (AD) 246, Malkarjun Vs. Narahari and another, 25 (Bom) 337 P.C., Raja Indrajit Pratap Ba­hadur Sahi Vs. Amar Singh and others, AIR 1923 (P.C.) 128.
 
Lawyers Involved:
Golam Rabbani, Advocate instructed by Sharifuddin Chaklader, Advocate-on-Record.- For the Pe­titioner.
Mozzammal Huq, Bhuiyan, Advocate instructed by Md. Aftab Hossain, Advocatc-on-Record. -- For Respondents No. 1-50.
Not Represented. - For Respondent No. 11.
 
Civil Appeal No.6 of 1986
(From the judgment and order dated 25.11.1985 passed by the High Court Division, Dhaka in Writ Petition No. 435 of 1985.)
 
JUDGMENT
 
Badrul Haider Chowdhury J.
 
This ap­peal by special leave is directed raglans the order of the High Court Division in Writ Petition 435 of 1985.
 
2. Leave was granted to consider the question whether the High Court Division was justified in re­jecting the petition under Article 102 of the Consti­tution and thereby denying any remedy to the appel­lant.
 
3. Facts arc as follows: The appellant was the first party in a proceeding under section 145 Cr.P.C. The respondents were second parties. The learned Magistrate was of the opinion that there was an ap­prehension of the breach of peace, so he drew up an order under section 144 Cr.P.C. on 26.11.79. Subsequently this proceeding was converted into proceed­ing under 145 Cr.P.C. and the disputed property was attached and the Circle Officer was appointed as re­ceiver. Both the parties adduced their respective evi­dence and the learned Magistrate by order dated 27.2.82 found the appellant in possession and ac­cordingly vacated the order of attachment etc. As against this order, the respondents filed Criminal Motion No. 9 of 1984 under section 439A of the Code of Criminal Procedure. The learned Assistant Sessions Judge, who was deemed to be an Additional Sessions Judge, after hearing the parties, set aside the judgment and order of the Magistrate by judgment and order dated 18.9.85.
 
4. Being aggrieved by this order, the appellant filed Writ Petition No. 435 of 1985 and the learned Judges of the High Court Division dismissed the writ petition summarily on the ground of maintaina­bility by order dated 25. 11.85. The learned Judges, it seems, took the view that the appellant had another remedy by way of revision and the ratio of the deci­sion in 35 DLR (AD) 127 has no manner of ap­plication. It was observed:
 
"In our view the observation made in that decision was with reference to the facts in that case. In that case the petition in the revisional application under section 439A Cr.P.C. in the Court of the Sessions Judge was the petition in revision in the High Court Division. In that view we are unable to accept the contention of the learned Advocate for the petitioner that a writ would lie under Article 102 of the Consti­tution as revived, against the order passed under section 439A Cr.P.C. by the learned Assistant Sessions Judge, Kishoregonj, and that a revision at the instance of the opposite party in the revisional application in the court of the Sessions Judge, would notice in this court. For the reasons stated above this applica­tion fails and it is summarily rejected".

Leave was granted to consider the correctness of the proposition mentioned above and the dismis­sal of the writ petition summarily.
 
5. Mr. Golam Rabbani, learned Counsel for the appellant, contended that the High Court Division apparently took the view that a second revision lies whereas the decision of this Court in 35 DLR (AD) 127 in authoritative pronouncement has settled the law and there is no scope for filing second revision. The second branch of the argument was that, in that view of the matter the High Court Divi­sion ought to have entertained the writ petition on merit and not dismissing it summarily.
 
6. The first contention of Mr. Golam Rabbani is correct. This Court has in clear terms laid down the law that no second revision lies in view of the law in sections 439A (2) and 439(4) of the Code of Criminal Procedure. The purported distinction sought to be drawn by the learned Judge of the High Court Division was misconceived and the obiter was unwarranted.
 
7. Now the second branch of the argument, whether the writ petition lies against the decision of the Sessions Judge under Section 439A of the Code of Criminal Procedure. A litigant has no inherent right in procedural remedy, but appeal or revision must be given expressly by law. Since this Court has observed in 35 DLR that there is no scope for second revision, the matter ends there. That does not mean that of necessity a writ jurisdiction may be in­voked. The constitutional mandate is that a writ ju­risdiction can be invoked if the High Court Division is satisfied "that no other equally efficacious remedy is provided by law." What is the nature of the pro­ceeding in the instant case. It was a proceeding under section 145 Cr.P.C. In the case of Shahjahan Sheikh and others Vs. The Sessions Judge, Pirojpur (Criminal Appeal Nos. 48 and 49 of 1985) 38 DLR (AD) 246, this Court has explained the nature and scope of the pro­ceeding under section 145 Cr.P.C. and at what stage revisional jurisdiction would be attracted. In the present case the learned Magistrate found the posses­sion of the first party, the appellant, whereas the re-visional court set aside the order of the learned Mag­istrate, The appellant invoked the writ jurisdiction but the High Court Division dismissed the petition summarily. Mr. Rabbani canvassed that the 1st party is now left without remedy.
 
8. This argument is misconceived, inasmuch as, the purport of the proceeding under section 145 Cr.P.C. is to find the possession of the properly and section 146(1) clearly lays down that in case he decides that none of the party was then in such posses­sion or is unable to satisfy as to which of them was in possession, he may attach the land "until a com­petent court has determined the rights of the parties thereof or the person entitled to possession thereof" and in sub-section (2) if the civil court appoints any receiver "possession shall be made over to him by the receiver appointed by the Magistrate, who shall thereby be discharged The law has brought in sharp focus the civil court to determine the rights of the parties or even possession. Since it is a question of fact that has to be adjudicated on evidence and the writ jurisdiction is not appropriate for seeking relief.
 
9. The Magistrate found possession in favour of the appellant. So, the appellant has no grievance. The revisional court reversed the judgment of the and the appellant consequently felt aggrieved and he filed the writ petition. As it has been observed that he had alternative efficacious remedy; and even assuming for arguments' sake that remedy is not "equally efficacious" could the appellant press his writ application and, if so, for what relief. He could not ask for a writ in the nature of mandamus that has been given under Article 102(2) (a) Clause-(I), inasmuch as, it could not be argued that the learned Sessions Judge was not permitted by law to do what he did. The learned Sessions Judge was giv­en power under section 439A Cr.P.C.
 
10. Next, could the appellant invoke clause (ii) "declaring that any act done, has been done or taken without lawful authority and is of no legal effect". This clause is also not attracted in view of the con­ferment of jurisdiction by a court. A court in exer­cise of its jurisdiction can decide wrongly as well as rightly. In Malkarjun V. Narahari and another report­ed in 25 (Bom) 337 P.C. it was pointed by the Judi­cial Committee that the judicial sale was not a nulli­ty and could not be treated as invalid notwithstanding any irregularity even though a material one, for the jurisdiction of the Court to execute had been com­pleted throughout. "It has not been lost by the rea­son of the above error, mid had empowered the Court to decide wrongly as well as rightly." The aggrieved party, it was pointed out, could bring suit to impugn such sale within one year as provided by Article 12 of the Limitation Act. Their Lordships pointed out that the aggrieved party had another remedy, namely, by suit.
 
11. It is common knowledge in a proceeding un­der section 145 Cr.P.C. the Court deals only with the limited scope of finding possession and if any party is aggrieved by such finding he can take resort to the civil court for the re-dress of his grievance. In this view of the matter, there is no hesitation in say­ing that the High Court Division had correctly re­fused the writ petition summarily. But that does not mean that the appellant had been left without any remedy.
 
12. Mr. Rabbani could not cite any decision from any jurisdiction of the sub-continent to show that the writ jurisdiction was invoked in a 145 pro­ceeding. The remedy for the unsuccessful party is to file a civil suit. See Flimuddin Sarkar vs. Umed Ali Bepari and others reported in AIR 1936 (Cal) 659. It was observed:
 
"Consequently, as provided by section 145, sub-section(6), the party declared to be entitled to posses­sion in 1919 is entitled to be protected against disturbance of such possession until evicted there from in due course of law. Otherwise it would be possible for the opposite party to con­tinue to harass his opponents by instituting successive proceedings under section 145. The party alleging that they arc aggrieved have their reme­dy in a civil court, where the question of title and possession can be settled as between the contending parries."
 
The onus is on the unsuccessful party to show that he has a better title to the property than the per­sons whose possession had been found by the crimi­nal court.
 
13. In the case of Raja Indrajit Pratap Ba­hadur Sahi Vs. Amar Singh and others re­ported in AIR 1923 (P.C) 128 of the Privy Council noticed that in the proceeding under section 145 Cr.P.C. the defendant was found in possession. In that context it was observed:

 
"Their failure in those proceedings led in fact to the institution of the present action in August 1914. The onus thus lay heavily on the plaintiffs to show that the defendant was not in possession of these properties by virtue of the title he alleges".
 
In this view of the matter, there is no hesitation in saying the appellant had another remedy e.g. by suit and the writ petition was inappropriate.
 
In the result, therefore, this appeal is dismissed. No order as to costs.
 
Ed.