Case No: Civil Rule No. 140(Con)(F) of 2016
Judge: Soumendra Sarker. J.
Court: High Court Division,
Advocate: Mr. Mahbubey Alam, Mr. Md. Oziullah,
Citation: 2017 (1) LNJ 73
Case Year: 2016
Appellant: Managing Director, Rupali Bank Ltd
Respondent: Haji Jahanara Begum and others
Delivery Date: 2017-02-20
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
Soumendra Sarker, J,
Md. Ashraful Kamal, J.
Managing Director, Rupali Bank Ltd.
. . . Petitioner-applicant
Haji Jahanara Begum being dead her heirs: 1(a) Haji Arab Ali and others
Limitation Act (IX of 1908)
Under the provision laid down in section 14 of the Limitation Act in computing the period of limitation prescribed for any legal proceedings, the time during which the party concerned has been procuring with due diligence in another civil proceedings shall be excluded where the proceedings is founded upon the same cause of action and its prosecution in good faith. . . . (11)
Limitation Act (IX of 1908)
Sections 5 and 14
In order to disposal of the Rule the relevant section 05 of the Limitation Act provides that the period of limitation prescribed therein can only be condoned in appropriate case where the explanation is reasonable and there is no laches or negligence from the part of the applicant, rather; it is apparent from the face of the papers that with due diligence and bonafide intention the party concerned tried to seek their remedies. Here in this case; as to the cause of delay we find wrong advice of the lawyer. . . . (13)
Limitation Act (IX of 1908)
The reason to inclined such a view that the delay caused was beyond the control of the applicant and there is nothing to hold such a view and draw such inference that the applicant was negligent and was dormant in getting the relief as sought for in wrong forum. . . . (16)
Limitation Act (IX of 1908)
Sections 5 and 14
The bonafide intention and the cause of delay can be defined easily as reasonable and sufficient in filing the instant First Appeal and due to the spelt out facts and circumstances which was beyond the control of the defendant-appellant-applicant the unusual delay of 5,606 days in filing the First Appeal was condoned. . . . (17 and 19)
Mr. Mahbubey Alam, Senior Adv. with
Mr. Sk. Md. Morshed and
Mr. Md. Shakhawat Hossain, Advocates.
----For the petitioner.
Mr. Md. Oziullah, with
Mr. Satya Ronjon Monal, Advocates
… … For the opposite parties.
Soumendra Sarker, J
The Rule was issued calling upon the opposite parties No. 1(a)-1(e) and 2 to show cause as to why the delay of 5606 days in filing the First Appeal challenging the exparte judgment and decree dated 31.08.1999 and 15.09.1999 respectively passed by the then Subordinate Judge, 1st Commercial Court, Dhaka in Title Suit No.18 of 1997 in decreeing the suit should not be condoned 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 plaintiff-respondents No.1 and 2 filed the original Title Suit being No.18 of 1997 praying for declaration and realization of compensation money amounting to Tk.84,50,000/- against the defendant-petitioner. In the original suit the present defendant-appellant-applicant appeared after service of summons-notice and filed written statement raising their respective pleadings challenging the pleadings of the plaintiff cited within the contents of the plaint. The defendants on 22.11.1998 after making their appearance submitted their written statement but the learned trial Judge in defendant’s absence decreed the Suit ex-parte on 31.08.1999. The plaintiff-decree-holder-respondents No. 1-2 thereafter filed Decree Execution Case No. 02 of 1999, which was transferred to the 3rd Court of learned Joint District Judge, Dhaka and was renumbered as Title Execution Case No. 08 of 2013. In the said Title Execution Case while the present defendant-appellant-applicant received notice from the decree executing court, the defendant-applicant Managing Director, Rupali Bank Ltd. came to know for the first time about the ex-parte decree which is in existence against them. Their further case is such that the defendant filed a Miscellaneous Case being No.04 of 2000 for setting aside the ex-parte decree under Order IX Rule 13 of the Code of Civil Procedure. In the said Miscellaneous Case No.04 of 2000 the plaintiff appeared and filed written objection and hearing the parties to the case the learned Joint District Judge, 3rd Court, Dhaka by his judgment and order dated 22.07.2001 set aside the ex-parte judgment and decree dated 31.08.1999 passed in Title Suit No. 18 of 1997. The plaintiff challenging the said judgment and order dated 22.07.2001 passed in Miscellaneous Case No.04 of 2000 filed a First Miscellaneous Appeal being No.09 of 2000 in this Court which was dismissed on the ground of maintainability. Subsequently, the plaintiff filed a Civil Revision No. 933 of 2005 before this Court and receiving the copy of the Rule the present applicant engaged their learned counsel namely Mr. Quamrul Haque Siddique for conducting the said Civil Revision. The learned counsel at the time of hearing of the Civil Revision informed this Court that he has given no objection certificate and also have returned the brief and finally he did not appear on behalf of the defendant Rupali Bank in the said Civil Rule. The further case of the defendant-appellant-applicant is such that the said Civil Revision No. 933 of 2005 was heard by this Court and through it’s judgment and order dated 11.10.2012 this Court make the Rule absolute. In this way; in filing the present First Appeal No.154 of 2016 there has been a delay of 5,606 days and for condonation of the said delay the instant application under Section 05 read with section 14 of the Limitation Act has been filed by the defendant-appellant-applicant contending inter alia that on 06.05.2015 one Sub-Inspector of Motijheel Police Station went to the petitioner’s office to assess the expenditure of Police force for evicting the petitioner Bank from Rupali Bhaban, 34, Dilkusha Commercial Area, Dhaka and then the Bank officials asked the said Sub-Inspector of Police about the reason and in reply he informed the Bank officials that, the learned Joint District Judge, 3rd Court passed an order in Title Execution Case No.08 of 2013 directing the Motijheel Police Station to assess the cost of Police force. Thereafter, the Bank officials personally visited the said bank on 07.05.2015 and thereby it reveals to the bank that; after disposal of the Civil Revision No. 933 of 2005; proceedings of the said Execution case has been started. Thereafter; the Bank applied on 10.05.2015 to collect the certified copies of the judgment and order dated 11.10.2012 passed in Civil Revision No. 933 of 2005 from this Court and on getting of that having gone through the said judgment and order the applicant Bank could realize that, at the time of hearing of the said Civil Revision the engaged counsel of Bank Mr. Quamrul Haque Siddique informed the Court that he has returned the brief with no objection certificate and consequently; the honourable Court disposed of the Rule on the ground of non opposing on behalf of the Bank and it is the positive case of the defendant-Bank that their concerned Law Division on scrutiny of the records did not find any such kind of correspondence with his client, the bank from the learned Advocate Mr. Quamrul Haque Siddique regarding the said Civil Revision. Thereafter, the petitioner Bank vide their letter dated 10.05.2015 requested the learned counsel Mr. Quamrul Haque Siddique to supply the information as to when and to whom he returned the brief, but the learned Advocate not yet replied. Applicant’s further case is such that, Challenging the judgment and order dated 11.10.2012 passed by a Division Bench of this Court in Civil Revision No. 933 of 2005 the defendant-appellant-petitioner have filed a Civil Petition for Leave to Appeal No. 1313 of 2015 before the Hon’ble Appellate Division with an application for condonation of delay of 943 days in filing of the said Civil Petition for Leave to Appeal and receiving that; the Hon’ble Judge-in-Chamber of the Appellate Division by his order dated 14.05.2015 was pleased to stay the Execution Case No. 08 of 2013 and fixed the said Civil Petition for Leave to Appeal for hearing, which was dismissed on 25.02.2016 on the ground of limitation. After dismissal of the Civil Petition for Leave to Appeal No. 1313 of 2015 by the Hon’ble Appellate Division the appellant bank applied for certified copy on 28.02.2016 of the judgment and decree passed in Title Suit No. 18 of 1997 and the concerned authority delivered the same to the Bank on 08.03.2016 and immediately after obtaining that certified copies; the Bank filed the instant Appeal but in the meantime the cited delay occurred which is not at all intentional or deliberate and due to wrong advice and misdeed of the lawyer the applicant availed a wrong forum, which is unintentional and not malafide of the applicant. The delay caused was beyond the control of the applicant and it was due to the negligence and wrong advise of the learned Advocates of the applicant who were engaged to conduct the case and as such there is no willful laches or negligence on behalf of the defendant-appellant-applicant-Bank in causing the delay in filing the instant First Appeal and for the said reasons the delay can be condoned.
3. During hearing of this Rule Mr. Mahbubey Alam, Senior Advocate with Mr. Sk. Md. Morshed and Mr. Md. Shakhawat Hossain, the learned Advocates appeared on behalf of the applicant while Mr. Md. Oziullah, with Mr. Satya Ronjon Monal, the leaned Advocates appeared on behalf of the opposite parties.
4. The learned Advocate appearing on behalf of the petitioner submits that, due to bonafide mistake of the defendant-appellant-applicant the delay occurred and there was no willful laches or negligence on the part of the defendant-bank. The learned Advocate further submits that the defendant-appellant-petitioner receiving summons notice of the trial court in Title Suit No.18 of 1997 filed the written statement in time and till 22.11.1998 the defendant used to take all necessary steps to contest the suit, but due to the fault of the conducting lawyer and surrender of vocalatnama followed by the return of brief of case; which were beyond the defendant-bank’s knowledge the appellant-applicant failed to take required “tadbir” from 02.02.1999 to 31.08.1999. The learned Advocate also submits that due to the laches of the then learned counsel of the applicant, the defendant-appellant-applicant should not suffer inasmuch as the defendant-applicant have no willful negligence or laches rather he was quite diligent to contest the suit after engaging the learned lawyer on his behalf but due to unavoidable circumstances the defendant-bank was not in a position to contest the suit and in taking steps before the trial court in time including filing of hajira and after the judgment and order passed in the miscellaneous case under Order IX rule 13 of the Code of Civil Procedure the petitioner-bank failed to aware of the position and result of the Civil Revision No.933 of 2005 in time and subsequently knowing about the result of the civil revision obtaining certified copy of the judgment and order the defendant-appellant-applicant filed a Civil Petition for Leave to Appeal being No.1313 of 2015 with an application for condonation of delay of 943 days, but the Hon’ble Appellate Division dismissed the said Civil Petition for Leave to Appeal on the ground of limitation. The learned Advocates also submits that the learned trial court during passing the ex-parte judgment and decree committed gross illegality in violating the provisions laid down in Order XXII rule 4(2) of the Code of Civil Procedure and also violated the provisions of Order XVII of the Code of Civil Procedure which need to be examined by this Court and as such the delay for filing of the appeal should be condoned for ends of justice. The learned Advocate in support of his contention upon sufficient cause referred several decisions of this Court and our Apex Court and argued that in filling of the appeal against the ex-parte judgment and decree the delay which was caused is quite bonafide and the defendant-appellant-applicant was diligent in conducting it’s case but due to unavoidable circumstances at the wrong advice of the then learned counsel, in wrong forum the matter was agitated and by this time there has been a delay as stated above which is required to be condoned for the sake of justice.
5. As against the aforesaid submissions of the learned counsel on behalf of the defendant-appellant-applicant; the learned Advocate appearing on behalf of the plaintiff-respondent-opposite parties opposing the Rule controverted the submissions advanced from the side of the applicant and submits that the defendant was all along negligent and knowingfully well about the original suit it’s ex-parte decree, execution case and the subsequent proceedings, suppressing all the facts on false allegations; only to harass the plaintiff-respondent-opposite parties have preferred this application for condonation of delay. The learned Advocate further submits that the delay explained is not at all satisfactory as well as reasonable for allowing the application for condonation of delay which is unusual delay of 5606 days. The learned Advocate also submits that under the established principle of law the defendant-appellant-applicant is not entitled to get an order of condonation of delay because of his negligence in conducting his case with due diligence. The learned Advocate argued that there is no bonafide reason for condonation of the delay which can be considered by this Court since the defendant-bank is habituated in dealing with the plaintiff-opposite party and it had willful laches and negligence in pursuing it’s case. The learned Advocate in support of his contention referred some decisions of this Court and our Apex Court and finally submits that the instant case is a vexatious and harassing one and as such the defendant-appellant-applicant is not entitled to get any relief as prayed for and the Rule is liable to be discharged.
6. We have considered the submissions of the learned Advocates and have perused all the connected papers meticulously.
7. Having gone through the relevant papers carefully including the proceedings of the cases which were up to the Hon’ble Appellate Division with reference to the decisions cited by the learned counsels of both the parties.
8. Consulting the relevant papers as well as the facts of the case; it is apparent that in filing of the appeal there has been an unusual delay of 5606 days and to save the period of limitation it is the specific contention of the defendant-appellant-applicant that the applicant had no negligence or lack of honesty and sincerity rather was very much willing to conduct his case and to contest the suit; but due to unavoidable circumstances caused by the wrong advice of his the then learned counsel and the wrong forum which was chosen at the instance of the learned Advocate and surrender of brief behind his knowledge by his engaged learned senior Advocate Mr. Quamrul Haque Siddique the delay occurred which was unintentional and beyond the control of the defendant-appellant-applicant.
9. It transpires from the relevant papers that initially for setting aside the ex-parte judgment and decree the defendant-appellant preferred a miscellaneous case under Order IX rule 13 of the Code of Civil Procedure and prior to that after getting summons notice during pendency of the original suit the defendants No.1-3 appeared and filed their written statements. It was contended specifically in their written statements that the suit as filed is not maintainable under the provisions of law which is malafide, motivated and barred by the law of limitation and finally without any legal basis. It also appears that the fact remains that after making their appearance till 22.11.1998 the defendants took several steps in conducting their case, but on 02.02.1999, 18.03.1999, 31.05.1999, 22.07.1999, 18.08.1999 and 31.08.1999 the defendants did not take any step and consequently the suit was decreed ex-parte vide judgment and order dated 31.08.1999. It is also apparent from the face of the papers that, getting the decree as stated above the plaintiff-decree holder-respondents No.1-2 filed a Title Execution Case being No.02 of 1999 before the learned trial court which was subsequently transferred to 3rd Court of Joint District Judge, Dhaka and renumbered as Title Execution Case No.08 of 2013. It is the positive assertion of the defendant-applicant that, receiving the notice of execution case for the 1st time the defendant-appellant came to know about the ex-parte decree and thereafter, preferred the Miscellaneous Case for setting aside the ex-parte judgment and decree dated 31.08.1999. It was the case of the defendant-bank that the delay occurred in filing the miscellaneous case was beyond control and the period of contract as retainer of the conducting lawyer namely Mr. S.A. Rahim of Rupali Bank was expired, who was entrusted with the duties of looking after and making ‘tadbir’ of the said suit. It was further contended that the defendant No.2 retired on 27.02.1991 and the defendant No.3 retired on 31.12.1993, who were in the administration and management of the bank.
10. The certified copy of the judgment and order dated 22.07.2001 passed in Miscellaneous Case No.04 of 2000 has been annexed here with as Annexure-‘A’. It also appears from the relevant papers that the said judgment and order was challenged by the plaintiff-respondents No.1 and 2 and they filed First Miscellaneous Appeal No.09 of 2000 before this Court. Subsequently, they filed a Civil Revision No.933 of 2005. That Civil Revision was heard and disposed of vide judgment and order dated 11.10.2012 making the Rule absolute. The certified copy of the judgment and order of Civil Revision No.933 of 2005 has also been annexed herewith as Annexure-‘B’.
11. The fact remains that the defendant-appellant-applicant have exhausted all forums upto the Hon’ble Appellate Division to seek redress of grievances but they did not get any relief due to their time barred application of Civil Petition for Leave to Appeal being No.1313 of 2015 and it has been contended from the side of the applicant that due to mis-appreciation of law the applicant availed a wrong forum and thereby the delay occurred for preferring the appeal was beyond the control of the applicant and it was out and out due to the negligence and wrong advise of the learned Advocates who were engaged to conduct the case of the defendant. With regard to this; under the provision laid down in section 14 of the Limitation Act in computing the period of limitation prescribed for any legal proceedings, the time during which the party concerned has been procuring with due diligence in another civil proceedings shall be excluded where the proceedings is founded upon the same cause of action and its prosecution in good faith.
12. In the instant case; as we have come across from the contention of the respective parties and papers thereof that for several civil proceedings and at the end of the said proceedings including the conduct of the learned Advocates engaged in defending the applicant, a prolong time was consumed.
13. In order to disposal of the Rule the relevant section 05 of the Limitation Act provides that the period of limitation prescribed therein can only be condoned in appropriate case where the explanation is reasonable and there is no laches or negligence from the part of the applicant, rather; it is apparent from the face of the papers that with due diligence and bonafide intention the party concerned tried to seek their remedies. Here in this case; as to the cause of delay we find wrong advice of the lawyer. In our jurisdiction in the case of Nitya Gopal Saha vs. Binod Behari Saha 29 DLR 259, this court held that the mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within this section. In the case of Sonar Bangla Service Station vs. Government of the People’s Republic of Bangladesh our Apex Court in the case law reported in 59 DLR(AD)1 held (paragraph No.7):
“1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”
14. Apart from this; this court in the case of Debabarata Chatterjee vs. Md. Munsur Ali and ors. 36 DLR 136 decided that a bonafide mistake by a learned counsel is sufficient to condone delay in filing an appeal. In the said decision there is a reference to a decision reported in A.I.R. 1970 (SC)1953. In the case of Mata Din vs. A. Narayanan their lordships of the Supreme Court of India held:
“The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bonafide or was merely advice (devise-Ed) to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way.”
15. On our meticulous consultation as well as perusal of the related papers it is no where noticed that the defendant-bank was not diligent in conducting their case or that they had any sort of willful negligence or laches to redress their grievances and it is the wrong forum which was exhausted due to the bonafide mistaken advice of their the then engaged lawyer and it is asserted specifically from the side of the applicant that due to mis-appreciation of law the applicant was compelled to avail the wrong forum as stated within the contents of the application for condonation of the delay. It was further agitated specifically from the side of the applicant that the delay which was no doubt an unusual delay of 5,606 days was purely unintentional and the bank concern had a bonafide intention from the very beginning and they were vigilant in conducting their respective case in order to get the remedies in proper forum, but due to the wrong advice of their engaged lawyer the delay occurred in filing the instant appeal. Besides this; return of brief was beyond their knowledge by the learned senior counsel Mr. Qumrul Haque Siddique and retirement of concerned officials of the defendant-Bank, the defendants No. 2 and 3; which are not otherwise disproved or discarded from the side of the plaintiffs lead us to believe the ‘bonafide’ of the defendant-appellant.
16. In the foregoing narrative; we have the reason to inclined such a view that the delay caused was beyond the control of the applicant and there is nothing to hold such a view and draw such inference that the applicant was negligent and was dormant in getting the relief as sought for in wrong forum.
17. Be that as it may; the bonafide intention and the cause of delay can be defined easily as reasonable and sufficient in filing the instant First Appeal and due to the spelt out facts and circumstances which was beyond the control of the defendant-appellant-applicant the unusual delay as stated above was occurred.
18. Having regard to the facts, circumstances and discussions referred to above we are constrained to hold such a view that for complete justice the application for condonation of delay deserve our compassionate consideration, so that; no injustice can be done in getting the proper relief under the purview of law.
19. In the result, the Rule having merit be made absolute without any order as to costs. The delay of 5,606 days in filing the First Appeal is hereby condoned.
Communicate the judgment and order at once.
The office is directed to do the needful forthwith.
Civil Rule No. 140(Con)(F) of 2016