Khan Akhtar Alam Vs. NCR Corporation and others, (Md. Nuruzzaman, J.)

Case No: Civil Revision No. 2262 of 2017

Judge: Md. Nuruzzaman, J And Md. Khasruzzaman, J

Court: High Court Division,

Advocate: Mr. A.S.M. Rahmatullah with Mr. Khaled Saifullah, Advocates ,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Khan Akhtar Alam

Respondent: NCR Corporation and others

Subject: Code of Civil Procedure

Delivery Date: 2019-11-27

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Nuruzzaman, J

And

Md. Khasruzzaman, J

 

Judgment on

12.08.2018

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Khan Akhtar Alam

. . Petitioner

-Versus-

NCR Corporation and others

. . . -Opposite party.

Code of Civil Procedure (V of 1908)

Order IX, Rules 9A and 13

On perusal of the provision of Rule 9A of Order 9 of the Code it is clearly divulged that this provision of law would be applicable only for the plaintiff when a suit is dismissed for default, however, the provision of the said Rule cannot be applicable for restoration of a Miscellaneous Case dismissed for default which was filed under Rule 13 of Order IX of the Code at the instance of the defendant.       . . . (26)

Code of Civil Procedure (V of 1908)

Section 151

Order IX Rule 9A, 13 and Order XLIII Rule 1(d)

invoking the provision of Rule 9A of Order 9 and section 151 of the Code would not be the legal and lawful recourse of remedy for seeking redress for restoration of Miscellaneous Case because of the provision of sub Rule (d) of Rule 1 of Order XLIII of the Code wherein there is a specific provision of law for restoration the Miscellaneous Case dismissed for default filed under the provision of Rule 13 of the Order IX of the Code. It is age-old legislative recognition and well settled maxim that every Court has inherent power to act “ex debito justitiae i.e. to do the real and substantial justice in dispensation of or to prevent abuse of process of the Court invoking the inherent jurisdiction of the Court.        . . . (27 and 33)

Hosne Ara Begum Vs. Chairman, Court of Settlement and another 46 DLR (AD) 9; Chand Biswas Vs. Khaleque 51 DLR (AD)-551; 29 DLR (SC)-185; 26 DLR (HC)-124; 38 DLR (HCD) 258; Abdul Kader Chowdhury Vs. Nurul Islam and others 43 DLR (AD) 128; Hurro Vs. Shoorodhonee, 9 W.R. 402; Monohar Vs. Harilal A.I.R 1962 SC 527; Mama Reo Vs. Vimala Kumare A.I.R 1960 AP 2016 and Bangladesh Vs. Luxmi Bibi 46 DLR (AD) 158 ref.

Mr. A.S.M. Rahmatullah with

Mr. Khaled Saifullah, Advocates

. . . For the petitioner

Mr. Tanjib-ul alam with

Ms. Nazmun Binte Islam, Advocates

. . . For the O.P.No. 3

                        JUDGMENT

Md. Nuruzzaman, J: On an application under section 115 (1) of the Code of Civil Procedure calling upon the opposite party to show cause as to why the impugned judgment and order complained of in the petition moved in Court today should not be set aside and/or pass such other of further order or orders as to this Court seem fit and proper.

2.               The material facts, relevant for, disposal of the instant Rule, in short, are that, on 19.05.2016 the opposite party No.3 filed an application under Order IX Rule 9A read with section 151 of the Code of Civil Procedure (herein after to be referred as the Code) in the Court of Joint District Judge, 3rd Court, Dhaka for setting aside the order of dismissal for default passed on 11.5.2016 in Miscellaneous Case No. 27 of 2014 and restored the said to its original file and number.

3.               It has been narrated in the revisional application that the instant petitioner as plaintiff instituted Title Suit being No. 476 of 1981 before the Joint District Judge, 3rd Court, Dhaka against the opposite party Nos. 1 and 2 for settlement of account in respect of the amounts of sale and installation commission carried by the plaintiff.

4.               The defendant Nos. 1 and 2 contested the suit by filing written statement. The suit was dismissed on 22.12.1986 on contest.

5.               Plaintiff preferred the First Appeal No.  81 of 1987 before the High Court Division of the Supreme Court of Bangladesh.

6.               During the pendency of the said appeal the defendant No. 1 NCR Corporation appointed the Leads Corporation Ltd. as their exclusive distributor for Bangladesh with effect from 1.8.1992. On 1.8.1992 an advertisement was published in the Bangladesh Observer in this regard. Knowing this facts the plaintiff appellant filed an application before the Hon’ble High Court Division for adding the Leads Corporation Ltd. as respondent No. 3 in the pending First Appeal No.81 of 1987. The Hon’ble Court was pleased to issue the Rule calling upon the opposite party as to why the Leads Corporation Ltd. should not be added as party. The Leads Corporation Ltd. appeared before the Court through its engaged lawyer.

7.               On hearing both the sides the application was allowed and Rule was made absolute on 26.8. 2003. Thereafter, on hearing both the sides first \Appeal was allowed on 25.5.2009 in the preliminary form by setting aside the judgment and decree dated 22.08.1986 passed in title suit No. 476 of 1981. Thereafter, the Hon’ble High Court Division was also pleased to pass an order directing the trial Court to appoint an expert/commissioner to examine the connected books of account and other papers of the defendants  and  to ascertain the amount of commission due to the plaintiff from the defendants from 1976 up to 1981.

8.               The trial Court appointed Chartered Accountant directing him to submit an audit report and statement of account for ascertaining the amount of commission due to the plaintiff without any objection from parties to the suit. The trial Court got the audit report and statement of account. Thereafter, the trial Court passed the final decree on 8.8.2010 treating the said statement of account and audit report as part of the final decree without any objection from any party.

9.               The plaintiff appellant as petitioner by dint of judgment and decree dated 8.8.2010 filed an Execution Case being Execution Case No. 07 of 2013.

10.           The Leads Corporation Ltd. opposite party No. 3 after about 4 years on 29.6.2014 filed an Miscellaneous Case  under Order IX Rule-13 read with 151 of the Code being Miscellaneous Case No. 27 of 2014 before the learned Joint District Judge, 3rd Court, Dhaka for setting aside the final decree dated 12.8.2010 without explaining the delay of 216 days in filing of the said Miscellaneous Case.

11.           The plaintiff as opposite party contested the Miscellaneous case upon filing written objection.

12.           The Miscellaneous Case No. 27 of 2014 was fixed for hearing on 11.5.2016. The defendant petitioner on that date filed an application for adjournment without assigning any reason.

13.           The trial Court was pleased to reject the application as none of the Advocate appeared in Court and moved the application and further directed the parties to get ready at once and appear in the Court for hearing of the Miscellaneous Case. However, on that date till 4.30 P.M  none of the learned Advocate was appeared on behalf of the defendant petitioner and, as such, the learned Joint District Judge dismissed the said Miscellaneous Case.

14.           On 19.5.2016 petitioner as applicant instead of preferring an appeal as per provision of law against the order of dismissal of the Miscellaneous Case filed an application under Order IX Rule 9A read with section 151 of the Code without giving any notice upon the opposite party for restoring the Miscellaneous Case by setting aside the order of dismissal dated 11.5.2016.

15.           The petitioner on 19.5.2016 without giving notice to the plaintiff or the learned Advocate of the plaintiff opposite party most illegally, arbitrarily and without applying judicial mind upon ex party hearing of the learned Advocate for the applicant allowed the said application.

16.           Hence, being aggrieved by the impugned order dated 19.05.2016 the decree holder as petitioner preferred the instant revisional application and obtained the instant Rule with an order of stay.

17.           Mr. A.S.M. Rahmatullah with Mr. Khaled Saifullah, the learned Advocates appearing for the petitioner has submitted that on 19.5.2016 the opposite party as applicant without giving any notice or serving any copy of the application to the plaintiff opposite party or his Advocate filed an application under Order IX Rule 9A read with section 151 of the Code for restoring the Miscellaneous Case which was allowed ex parte by the learned Joint District Judge, 3rd Court, Dhaka without applying his judicial mind because a Miscellaneous Case filed under Order IX Rule 13 of the Code if dismissed for default is not revisable, rather, it is appealable under sub Rule (d) of  Rule 1 of Order XLIII of the Code but in the instant case Miscellaneous Case petitioner without invoking the proper provision of law filed the vexatious application and the learned judge of the Court below without considering the legal proposition as laid down for redress for the aggrieved party in Order XLIII invoked the jurisdiction under Order 9 Rule 9A read with section 151 of the Code and, as such, committed serious error of law.

18.           He further added that the learned Joint District Judge failed to consider the facts and circumstances that the petitioner herein  as an applicant filed the petition for restoration of the Miscellaneous Case without serving any copy of the petition to the learned Advocate for the opposite party or the opposite party invoking wrong provision of law and the learned Joint District Judge allowed the application upon misconception taking view that the applicant filed the petition within time and has explained the reason satisfactorily, therefore, allowed the application with cost of Tk. 1000/= according to provision of Rule 9A of Order 9 of the Code which cannot be sustained in law as Rule 9A of the Order 9 of the Code can be applicable only for the plaintiff who filed the suit which was dismissed according to provision of Rule 8 of the Code not for the Miscellaneous Case and, as such, the learned Joint District Judge committed an error of law resulting in an error in the decision occasioning failure of the justice which is liable to be set aside.

19.           Mr. Khaled Saifullah the learned Advocate in support of his submission relied upon the decisions reported 45 DLR(AD)-37, PLD-1953 Dhaka,-183, 32 DLR (HCD)-57.

20.           On contra, Mr. Tanjib-ul Alam, the learned Advocate appearing for the opposite party No.3. who contested the Rule by filing counter affidavit stating, inter alia, that the opposite party precisely and specifically mentioned in the time petition the reasons for adjournment. The Bench Officer of the Court assured that the time petition of the  opposite party No. 3 would be accepted, since, there is no objection from the opposite party and accordingly nothing was written on the said petition which might indicate that the opposite party has no any objection whatsoever. Upon such assurance from the Bench Officer of the Court the learned Counsel left the Court believing that the time petition would be allowed. It has been further narrated that the conducts of the Court’s Bench Officer  attributed to the disposal of the Miscellaneous Case No. 27 of 2014 as elaborated in the application dated 19.5.2016 which caused injustice to the opposite party No. 3 and since the circumstance causing the dismissal of the Miscellaneous Case  No. 27 of 2014 stand on a different footing the trial Court was right invoking its inherent power under section 151 of the Code  for setting aside the dismissal order dated 11.5.2016.

21.           Mr. Tanjib-ul alam with Ms.Nazmun Binte Islam, the learned Advocates appearing on behalf of the opposite party has further submitted that it is well settled  that the jurisdiction under section 151 of the Code of Civil Procedure is a discretionary one which is to be exercised where it is  called for securing the ends of justice. Since, the facts and circumstance of dismissal of the Miscellaneous Case No. 27 of 2014 were exceptional the Hon’ble Court has rightly invoked its inherent power  restoring the Miscellaneous Case and, as such, committed no error of law.

22.           Mr. Alam, has further added that the petitioner with ill motives challenged the order dated 19.5.2016 after passing of 325 days from the date of the said order by relying on facts and laws which have no legal basis in the instant application and, as such, the Court below committed no error of law which does not call for any interference by this Court. Ms. Nazmun Binte Islam, the learned Advocate relied  to the Case of Hosne Ara Begum Vs. Chairman, Court of Settlement and another, 46 DLR (AD) 9, Chand Biswas Vs. Khaleque, 51 DLR (AD)-551, 29 DLR (SC)-185, 26 DLR (HC)-124, 38 DLR (HCD) 258.

23.           We have anxiously considered the submissions advanced by the learned Advocates of the respective parties. We have perused the impugned order dated 19.5.2016 and order dated 11.5.2016. We have carefully examined the precedents referred  by the  Advocates of the respective parties. We have also perused the application dated 19.5.2016 under Order IX, Rule 9A read with section 151 of the Code. On perusal the application for restoration of the Miscellaneous Case being No. 27 of 2014 it manifests that the learned Advocate specifically narrated the following facts that on 11.5.2016 by his associate lawyer filed an application for adjournment due to sickness he could not appeared in Court. However, up to 11.30 A.M Case file was not found in Bench, the Bench Officer and staffs informed the lawyer that fТaf­rl A¡f¢š e¡ b¡¢L­m pj­ul A¡­hce öe¡e£l SeÉ fЭu¡Se e¡Cz pju qCu¡ k¡C­hz”. Thereafter, the learned lawyer inquired about the file of the case and wanted to see the same in that time it was also informed that the application has been sent to the sheresta to find out the record. The learned lawyer  of the petitioner went to the sheresta and inquired about the file from where it was  also told  that pj­ul A¡­hce b¡¢L­m j”¤l qCu¡ k¡C­h in such facts and circumstances the learned Advocate awaiting to have next date of the instant case. However, on 18.5.2016 the learned Advocate for the petitioner found in the cause list that the Miscellaneous Case No. 27 of 2014 was dismissed.

24.           So, in the given facts of the instant case the moot question  before us whether an application under Rule 9A of the Order IX read with section 151 or an appeal under Rule (d) (1) of the Order LXIII would be invoked for restoration of the Miscellaneous Case dismissed for default filed under Rule 13 of the Order IX of the Code?

25.           We are of the view that  to settle  the matter and for better understanding and ready reference the provision of Rules 8 and 9A of the order 9 of the Code may be reproduced herein below:

          R. 8 Procedure where defendant only appears. Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates  to the remainder. 

          R.9A. Directly setting aside dismissal. – (1) Notwithstanding anything contained in rule 9 or any other law, the Court may, in order to avoid delay and expedite disposal, directly set aside the dismissal without requiring  the plaintiff to adduce evidence to satisfy it about sufficient causes as required under rule 9, but requiring him to pay such cost not exceeding one thousand taka as it may deem appropriate and determine:

          Provided that the dismissal under rule 8 shall not be set aside under this rule, unless an application, supported by affidavit, praying for setting aside the order of dismissal is made to the Court within thirty days  of the date on which the order of dismissal is made:

          Provided further that no dismissal shall be set aside more than once under this rule.

          (2) As soon as an order under sub-rule (1) is made setting aside ex parte dismissal, the Court shall cause notice thereof to be served at the cost of the plaintiff upon the defendant who appeared in the suit.]

          Comments. Since this newly inserted rule does not in any way curtail the provision of rule 9, it merely allows a well to do plaintiff to be negligent in conducting his case and gives him one more chance. In that view of the matter, the amendment may not serve the purpose of reducing in delay in adjudication.

26.           On perusal the provision of Rule 9A of Order 9 of the Code it is clearly divulged that this provision of law would be applicable only for the plaintiff when a suit is dismissed for default, however, the provision of the said Rule cannot be applicable for restoration of a Miscellaneous Case dismissed for default which was filed under Rule 13 of Order IX of the Code at the instance of the defendant.

27.           We are of the considered view that invoking the provision of Rule 9A of Order 9 and section 151 of the Code would not be the legal and lawful recourse of remedy for seeking redress for restoration of Miscellaneous Case because of the provision of sub Rule (d) of Rule I of Order XLIII of the Code wherein there is a specific provision of law for restoration the Miscellaneous case dismissed for default filed under the provision of Rule 13 of the Order IX of the Code.

28.           In support of our view we can place reliance to the case of Abdul Kader Chowdhury –Vs- Nurul Islam and others reported 43 D.L.R (AD) 128.

29.           However, in the present Case the learned Advocate for the opposite party argued that it is the mistake of the Court as it was the mistake of the Bench Officer of the Court below.

30.           To ascertain the truth we have perused the order. On perusal of the impugned order and the application for restoration of the Miscellaneous Case we do not find any substance in the submission of the learned Advocate for the opposite party that it was a mistake of the Court and the Court admitted the mistake and restored Miscellaneous Case only for the mistake of the Bench Officer or of the Court itself.

31.           Rather, on a bare reading of the language of the impugned order it appears that the learned Joint District Judge was of the opinion that the application filed under Rule 9A of Order 9 of the Code read with section 151 was within time, so, as per provision of Rule 9A of the Order 9 of the Code imposing the cost and on deposition the same the application of restoration was allowed.

32.           It would be noteworthy to reproduce the section 151 of the Code for ready reference is runs as follows:

          S. 151. Saving of inherent powers of Court. – Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

33.           It is the age-old legislative recognition and well settled maxim that every Court has inherent power to act “ex debito justitiae i.e. to do the real and substantial justice in dispensation of or to prevent abuse of process of the Court invoking the inherent jurisdiction of the Court.

34.           In 1868, his lordship Mr. Justice Peocock, Hon’ble C.J. observed “Since the laws are general  rules, they cannot  regulate for all time to come so as to make express provisions against all the cases that may possibly happen.......... It is the duty of the judges to apply the Laws, not  only to what appears to be regulated by their express dispositions but to all the cases to which a just application may be made, and which appear to be comprehended either within the express sence of the law or within the consequences that may be gathered from it”

          Ref: Hurro -Vs- Shoorodhonee, 9.W.R.402; Monohar -Vs- Harilal, A.I.R. 1962 SC 527.

35.           It has further observed and long line of catena of maxim of law  as well settled by the apex Court of the Country as well as  the sub continent that

          “Though the power is very wide and residuary in nature and not controlled by any other provision of the Code, it is not to be exercised if its exercise is inconsistent, or comes in conflict, with any provisions of the Code. 

Ref: Mama Reo -Vs- Vimala Kumare, A.I.R 1960 AP 216. The Hon’ble Appellate Division to the case of Bangladesh -Vs- Luxmi Bibi held that

          “As this power is residual in nature to do justice and to avoid abuse of process of the Court, this power can not be exercise when there is an alternative remedy available to the party” reported 46 DLR(AD) 158.”

36.           On the facts and circumstances we find that the submissions advanced by the learned Advocate for the petitioner bears substance. We have gone through the precedent referred by both the sides. On perusal of the precedents referred by learned Advocate of the opposite party, we although are not disagreeing with the aforesaid principle of law enunciated by their lordships. However, we find that the facts and circumstance of the present case and the referred cases are quite distinguishable. On the other hand the precedent referred by the learned Advocate for the petitioner is quite applicable in the present case.

37.           Therefore, we find support and good deal of force in the submission of the learned Advocate for the petitioner.

38.           Thus, the Rule having merit, it succeeds.

39.           In the result, the Rule is made absolute and the impugned judgment and order dated 19.5.2016 is hereby set aside.

40.           The office is directed to communicate the judgment at once.

Ed.


Civil Revision No. 2262 of 2017