Khondokar Mohammad Aman Ullah Vs. Md. Ibrahim and another 2017 (1) LNJ 1

Case No: Civil Revision No. 1180 of 2015

Judge: Soumendra Sarker. J.

Court: High Court Division,

Advocate: Mr. Depayan Saha, Mr. Mahbubey Alam,

Citation: 2017 (1) LNJ 1

Case Year: 2016

Appellant: Khondokar Mohammad Aman Ullah

Respondent: Md. Ibrahim and another

Subject: Civil Law

Delivery Date: 2018-02-04

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J.

And

Md. Ashraful Kamal, J

Judgment on

19.07.2016

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Khondokar Mohammad Aman Ullah

. . .Defendant-Petitioner

Versus

Md. Ibrahim and another

. . . Plaintiff-Opposite Parties

Code of Civil Procedure (V of 1908)

Order XXXVIII, Rule 5

The aforesaid extra-ordinary power vests upon the learned court below being very extensive shall have to be exercised with utmost caution and must be sparingly exercised. Furthermore; the opposite party must be served with notice and given an opportunity to show-cause. A conditional order of attachment is required to be made absolute and it may be passed after the issuance of notice under Order XXXVIII rule 5(1) and failure to furnish security or to show cause. In the instant case; as we have come-across that the learned court below after issuance of show-cause notice without hearing the defendant in an off date advancing the date fixed for hearing passed the impugned judgment and order causing miscarriage of justice. Besides this; apparently there is an order of status quo in respect of the self-same suit property which was passed earlier by the court below and during the continuation of the order of status quo the impugned order of attachment before judgment was passed behind the back of the defendant-petitioner. The trial court without appreciating the actual position of law in a hasty way passed the impugned judgment and order in a very evasive manner causing non-compliance of the provisions laid down in Order XXXVIII, rule 5 of the Code of Civil Procedure resulting in an error in the decision occasioning failure of justice.                                                             . . . (15, 16 and 17)

Unimarine S.A. Panama through Local Agent Bengal Shipping Line Limited and another Vs. Bangladesh, 31 DLR (AD) 112 ref.

Mr. Depayan Saha, Advocate with

Mr. Purnendu Bikash Das, Advocates.

=. . . For the petitioner.

Mr. Mahbubey Alam, Senior Adv. with

Mr. Sk. Reajul Hoque, Advocates

. . . For the opposite parties.

JUDGMENT

Soumendra Sarker, J

         The Rule was issued calling upon the opposite party No. 1 to show cause as to why the impugned judgment and order dated 29.01.2015 passed in Money Suit No.86 of 2012 by the learned Joint District Judge, 1st Court, Dhaka should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

2.            The facts leading to the issuance of the Rule in a nutshell can be stated thus that the present opposite party No.1 as plaintiff instituted the original Money Suit being No.86 of 2012 in the 1st Court of learned Joint District Judge, Dhaka contending inter alia that the plaintiff is a businessman and he has an industry in the ground floor of the ‘ka’ schedule property described in the plaint for making different parts of machineries. The defendant No.2 is the son of the defendant No.1. The plaintiff had friendship with the defendant No.2 and on the basis of that the plaintiff called the defendant No.1 ‘uncle’. The defendant No.1 proposed the plaintiff for purchasing possession of the suit shop situated in the ground floor of the ‘ka’ schedule land. The plaintiff agreed to purchase the same and an agreement was executed to that effect on 10.04.2008 at a consideration of Taka 20,25,000/- (Tk. Twenty lac and twenty five thousand). Out of that amount Taka 7,25,000/- (Taka seven lac and twenty five thousand) was paid as earnest money and accordingly possession was handed over in favour of the plaintiff. Subsequent to that; from 28.05.2008 to 07.07.2008 the defendant No.1 received a sum of Taka 3,70,000/- (Taka three lac seventy thousand). On 07.07.2008 the defendant No.1 further proposed to sell the ‘kha’ schedule land in favour of the plaintiff and the plaintiff agreed to purchase that. The consideration was fixed at Taka 85,00,000/- (Taka eighty five lac) on a condition that the earlier paid amount of Tk.10,95,000/- (Taka ten lac and ninety five thousand) would be adjusted and the rest amount will have to be paid. A deed of agreement was executed between the parties accordingly in respect of ‘kha’ schedule land and in all Tk.11,00,000/- (Taka eleven lac) was paid in favour of the defendant No.1. But the defendant did not register the instrument. The plaintiff requested the defendant No.1 on 25.09.2008 to handover possession of the land but the defendant No.1 denied. The defendant only delivered possession of 3rd floor of the building situated over the suit land in favour of the plaintiff and the plaintiff expending Tk.8,75,000/- (Taka eight lac seventy five thousand) extended his structure with the consent of the defendant No.1. The plaintiff on several times requested the defendant to register a sale deed in his favour but finally on 24.07.2012 the defendant denied to register the sale deed which constrained the plaintiff to institute the original suit for realization of money.

3.            The contrary case of the defendant No.1 in short is thus that the defendant is the owner of the suit land and the said land along with the maximum portion of building is being possessed by the defendant through different tenants who are paying rent regularly to the defendant. For want of money the defendant No.1 took a decision to collect money by selling the suit property and while the plaintiff showed his interest to purchase the same at a consideration of Taka 3,00,00,000/- (Taka three crore) an agreement for sale was registered to that effect. But the plaintiff showing a sum of Taka 85,00,000/- managed an agreement, which was not the desired agreement of the defendant and as a result; the said agreement was not registered. The further case of the defendant No.1 is such that he is facing irreparable loss and injury for non-payment of agreed earnest money by the plaintiff. At the request of the plaintiff the defendant No.1 let-out the third floor of the building and a room of ground floor in favour of the plaintiff but the plaintiff suppressing the facts on false allegations out of ill-motive filed the original suit.

4.            During pendency of the suit the plaintiff filed an application under Order XXXVIII rule 5 read with section 151 of the Code of Civil Procedure for attachment before judgment alleging that the defendant No.1 has no other moveable or immovable property excepting the schedule property and after receiving summons-notice of the original suit the defendant No.1 is trying to transfer the suit property in favour of 3rd party by evicting the plaintiff therefrom and meanwhile some brokers has visited the suit property and for the reason cited, finding no other alternative the plaintiff prayed for an attachment before judgment of the disputed property under the provisions laid down in Order XXXVIII rule 5 of the Code of Civil Procedure. Against the said application for attachment before judgment the defendant No.1 making his appearance filed written objection challenging the contention of the plaintiff. The defendant No.1 on 14.08.2014 filing his written objection to the court contended that there is no necessity of the order of attachment before judgment since there is an order of status quo in respect of the suit property passed earlier by the learned court below on 29.11.2012.

5.            The learned trial court vide his judgment and order dated 29.01.2015 allowed the application under Order XXXVIII rule 5 of the Code of Civil Procedure and passed an order of attachment before judgment in respect of the disputed property.

6.            Being aggrieved by and dissatisfied with the impugned judgment and order; the defendant-petitioner have preferred this revisional application under section 115(1) of the Code of Civil Procedure and obtained the Rule with an interim order of stay.

7.            During hearing of the Rule Mr. Depayan Saha, the learned Advocate with Advocate Mr. Purnendu Bikash Das, appeared on behalf of the petitioner while Mr. Mahbubey Alam, learned Senior Advocate with Mr. Sk. Reajul Hoque the learned Advocate appeared on behalf of the opposite parties.

8.            The learned Advocate appearing on behalf of the petitioner submits that the defendant-petitioner knowing about the existence of the application for attachment before judgment made his appearance and filed written objection on 14.08.2014 but without hearing the defendant-petitioner the learned court below arbitrarily passed the impugned judgment and order exparte causing miscarriage of justice. The learned Advocate further submits that in respect of the self-same suit property an order of status quo is prevailing, but; in spite of that, the learned court below being guided by surmise and conjecture passed the impugned order which is liable to be set aside. The learned Advocate also submits that behind the back of the defendant-petitioner the impugned judgment and order was passed which is apparent from the face of the records and thereby the learned court below committed an error of law in not considering that the question of security is the first alternative and only when the defendant fails to furnish security the court may pass an order of attachment. The learned Advocate lastly submits that the plaintiff by practicing fraud upon the court without serving a copy of the application dated 22.01.2015 upon the defendant No.1 managed to obtain an order of attachment which has resulted in an error in the decision occasioning failure of justice and lastly; the spirit of attachment before judgment under the purview of Order XXXVIII, rule 5 of the Code of Civil Procedure is not properly appreciated by the learned court below and thus; the impugned order which was passed is not in accordance with law.

9.            As against the aforesaid submissions of the learned counsel on behalf of the defendant-petitioner the learned counsel appearing on behalf of the plaintiff-opposite parties opposing the Rule submits that during passing the impugned judgment and order the learned court below committed no illegality or irregularity. The learned Advocate further submits that admittedly there was an agreement between the parties in respect of the suit property and the defendant No.1 after receiving a sum of Tk.80,50,000/- (Taka eighty lac and fifty thousand) from the plaintiff-opposite party in respect of the property described in schedule ‘ka’ and ‘kha’ of the plaint denied to register the sale deed in favour of the plaintiff; which constrained the plaintiff to file the original money suit for recovery of the amount which was paid by the plaintiff in favour of the defendant No.1. The learned Advocate further submits that the defendant after receiving summons-notice trying to dispose of the property in favour of third party resulting irreparable loss and injury of the plaintiff and finding no other alternative the plaintiff filed the application for attachment before judgment under Order XXXVIII, rule 5 read with section 151 of the Code of Civil Procedure and the learned trial court considering all the facts and circumstances of the case hearing both the parties rightly passed the impugned judgment and order and there is no illegality or irregularity in passing the impugned order. The learned Advocate lastly submits that nothing was suppressed and under the purview of law the learned trial court issued a show-cause notice upon the defendant before passing the impugned judgment and order and receiving that show- cause notice the defendant No.1 made his appearance and submitted written objection and the learned trial court finding the exigency circumstances of the matter rightly invoking his authority under the ambit of law passed the impugned judgment and order and as such there is nothing to interfere with the same.

10.        We have considered the submissions of the learned Advocates and have gone through the plaint of the original suit, the written statement filed by the defendant No.1 along with the application for attachment before judgment under Order XXXVIII, rule 5 of the Code of Civil Procedure including the written objection of the defendant-petitioner and all other relevant papers.

11.        On perusal of the papers it transpires that the plaintiff-petitioner after filing of the original suit preferred an application under Order XXXVIII, rule 5 of the Code of Civil Procedure with a prayer for attachment before judgment in respect of the schedule ‘property’ on 26.10.2012. From the connected order-sheets which are annexed herewith the counter affidavit on behalf of the opposite party no.1 it appears that the leaned court below on 29.12.2012 vide Order No.5 getting the application for attachment before judgment issued a show-cause notice upon the defendant-petitioner within 15 days from the date of receipt thereof. Meanwhile; an order of status quo was passed by the learned court below on the self-same date. It further appears from the connected order-sheets that after getting notice the defendant appeared and ultimately filed his written objection against the application for attachment before judgment. The learned trial court fixed several dates for hearing of the matter. On 14.08.2014 in Order No.18, which was a date for hearing of the application along with it’s written objection the learned court in it’s own motion adjourned the date of hearing fixing 14.10.2014.

12.        On the date fixed another date was advanced fixing 10.11.2014 for hearing of the matter. Thereafter; on the date fixed while the matter was put up for hearing and both the parties were ready; the plaintiff-opposite party filed an application for extension of the order of status quo. The learned trial court being pleased extended the order of status quo until further date and the next date was advanced to 13.01.2015. On the date fixed the plaintiff again filed an application for extension of status quo and the leaned court below extended the order of statusquo until next fixed date. The following day was fixed on 17.02.2015 for taking step under section 89A of the Code of Civil Procedure but it appears that, prior to the date fixed on 22.01.2015 the plaintiff filed an application for necessary order on his application for attachment before judgment. The learned court below hearing the application of the plaintiff fixed 29.01.2015 for order upon the application filed under Order XXXVIII, rule 5 of the Code of Civil Procedure, but the fact remains that, no where it is noticed that the said application was brought into the notice of the defendant-petitioner and the hearing was made in presence of the learned counsel who was engaged on behalf of the defendant and in this context; it is the specific assertion of the defendant-petitioner that the order was passed experte behind the back of the defendant-petitioner and the date was advanced without bringing it into the notice of the defendant which is an apparent fraud practice upon the court on the face of the record.

13.        Apart from this; we have come-across from the application for attachment before judgment under Order XXXVIII, rule 5 of the Code of Civil Procedure that the plaintiff-petitioner for the reasons cited in paragraph No.4 of the application alleged that the defendant No.1 after getting summons-notice of the original suit trying to transfer the schedule property in favour of third party and as a result of that; the plaintiff finding no other alternative have filed such application for attachment before judgment. The proposition of law as incorporated in rule 5 of Order XXXVIII of the Code of Civil Procedure is such that the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

14.        The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.

15.        The aforesaid extra-ordinary power vests upon the learned court below being very extensive shall have to be exercised with utmost caution and must be sparingly exercised. Furthermore; the opposite party must be served with notice and given an opportunity to show-cause. A conditional order of attachment is required to be made absolute and it may be passed after the issuance of notice under Order XXXVIII rule 5(1) and failure to furnish security or to show cause. In the instant case; as we have come-across that the learned court below after issuance of show-cause notice without hearing the defendant in an off date advancing the date fixed for hearing passed the impugned judgment and order causing miscarriage of justice.

16.        Besides this; apparently there is an order of status quo in respect of the self-same suit property which was passed earlier by the court below and during the continuation of the order of status quo the impugned order of attachment before judgment was passed behind the back of the defendant-petitioner. It is a decided matter that the power given in the concern provision laid down in Order XXXVIII, rule 5 of the Code of Civil Procedure is very extensive as well as extraordinary, and that’s why such power must be sparingly exercised and with utmost caution, otherwise; it may become an instrument of oppression. Moreover; the Court is to insist upon the proof of the allegation in the petition for attachment before judgment by affidavit or other mode of proof and the opposite party must be served with notice and given an opportunity to show cause. The Court is to be satisfied that the defendant is about to dispose of whole or part of his property; or he is about to remove whole or part of his property from the court’s jurisdiction, and his object is to obstruct or delay the execution of any decree that might be passed against him. The party imputing the motive on the defendant must be ready with the evidence to satisfy the Court, if called upon to do so. Vague or general allegations without any material are insufficient to invoke the power of the Court under this provision. Their lordships in the case of Unimarine S.A. Panama through Local Agent Bengal Shipping Line Limited and another –vs.- Bangladesh 31 DLR(AD)112 held that the attachment before judgment can be passed only and only in an appropriate case.

17.        The proposition of law as embodied in the relevant provisions is very much clear. But the fact remains that the trial court without appreciating the actual position of law in a hasty way passed the impugned judgment and order in a very evasive manner causing non-compliance of the provisions laid down in Order XXXVIII, rule 5 of the Code of Civil Procedure resulting in an error in the decision occasioning failure of justice.

18.        From the discussions and decisions referred to above we are constrained to hold such a view that in the instant case there is much substance to make the Rule absolute.

19.        In the result, the Rule is made absolute without any order as to costs. The impugned judgment and order dated 29.01.2015 passed in Money Suit No.86 of 2012 by the learned Joint District Judge, 1st Court, Dhaka is hereby set aside.

20.        The learned court below is directed to dispose of the original suit preferably within 04(four) months from the date of receipt of this judgment and order.

21.        However; for the sake of justice in the meantime the parties are directed to maintain status quo in respect of the suit property.

Communicate the judgment and order at once.

Ed.



Civil Revision No. 1180 of 2015