Md. Shahid Farooqui Vs. Director, National Housing Authority 2017 (1) LNJ 14

Case No: Civil Revision No. 369 of 2013

Judge: S. H. Md. Nurul Huda Jaigirdar. J.

Court: High Court Division,

Advocate: Mr. Imran A. Siddiq, Mr. Swapan Kumar Dutta,

Citation: 2017 (1) LNJ 14

Case Year: 2016

Appellant: Md. Shahid Farooqui

Respondent: Director, National Housing Authority

Subject: Civil Law

Delivery Date: 2018-02-04

 

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Nuruzzaman, J.

And

S. H. Md. Nurul Huda Jaigirdar, J

Judgment on

04.04.2016

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Md. Shahid Farooqui

. . .Plaintiff-Petitioner

Versus

The Director and Member (Land and Estate Management), National Housing Authority (formally, the Deputy Commissioner (Settlement), Segunbagicha, Dhaka-1000 and others

….Defendant-Opposite Parties

Code of Civil Procedure (V of 1908)

Section 115(1)

Limitation Act (IX of 1908)

Section 5

The learned Joint District Judge, 2nd Court, Dhaka was wrong in rejecting the application for disposal of the application for condonation of delay dated 22.06.2006 prior to proceeding any further with the hearing of the Miscellaneous Case No. 17 of 2006 and by that reasons, the impugned order is hereby set aside and consequently the application for disposal of the application for condonation of delay dated 30.01.2013 (Annexure-“F” to the revisional application under Section 115(1) of the Code of Civil Procedure) is hereby allowed and the learned Joint District Judge, 2nd Court, Dhaka is directed to hear and dispose of the application for condonation of delay within 2(two) months from the date of receipt of the judgment.     …. (25)

AIR 2000 Cal 280, AIR 1976 Cal 415, AIR 1930 Allahabad 815, AIR 1962 (SC) 361, 53 DLR (HCD) 183, AIR 1987 (SC) 1242, 36 DLR (AD)1, 49 DLR (AD) 187, 2 PLR-287 (Dhaka series), 45 DLR (AD) 38, 42 DLR-391 ref.

Mr. Imran Siddique with

Mr. Syed Mohammad Raihan, Advs.

… For the petitioner

Mr. Swapan Kumar Dutta, Advocates

.. For the opposite parties.

JUDGMENT

S. H. Md. Nurul Huda Jaigirdar,J:

         On an application under Section 115(1) of the Code of Civil Procedure this Rule was issued calling upon the opposite parties to show cause as to why the impugned order No. 73 dated 03.02.2013 passed by the Joint District Judge, 2nd  Court, Dhaka in Miscellaneous Case No. 17 of 2006 rejecting the petitioner’s application for disposal of the application for condonation of delay dated 22nd June,2006 prior to proceeding any further with the hearing of the miscellaneous case should not be set aside and/or such other or further order or orders passed as to this court may seem fit and proper.

2.            The plaintiff-petitioner’s case in brief is that by an allotment order dated 23rd October 1981, the then Deputy Commissioner (Settlement), Ministry of Public Works and Urban Development allotted Plot No. 20/10-A, measuring 5.45 acres in Block-F, Mohammadpur Housing Estate in favour of the Trust for a period of 99 years (hereinafter referred to as the ‘Trust Property”) for the purpose of establishing educational institutions including the Badshah Faisal Institute; the Office of the Commissioner (Settlement) has been subsequently reorganized and  re-named as National Housing Authority; according to Clause-2 of the said allotment order, the amount of the full salami of the plot was TK. 18,57,132.00 if paid in lump sum and Taka 20,05,703.00 if paid in four successive installments; the Trust opted to make the payments in installments and duly paid the first instilment of Tk . 6,19,044.00 by chalans dated 30th December 1980 and 3rd December 1981 respectively; in 1985, the name of the Trust was mutated with respect to plot No. 20/10-A by Mutation Case No. 8920(M)85 dated 6th July 1985; clause 5 of the allotment order dated 23th October 1981 fixed the annual rent of the allotted land at Tk 2.26 per annum per 100 sq  yards payable from the year of the commencement of the lease agreement; the Trust has paid the annual rent payable in relation to the entire 5.45 acres of land up to the year 2010 (B.S.1417); the Trust made repeated attempts to pay the remaining installments of the salami payable under the Deed of Lease dated 21st December 1981; however, on each occasion the petitioner was informed by Bangladesh Bank that they were unable to accept the chalans for payment of the due installments without the approval of the Ministry of Housing and Public Works; by a representation dated 2nd of November 1987, the petitioner requested the Assistant Commissioner, (Settlement), Ministry of Works for the necessary permission for acceptance of payment of the remaining installments; however, no reply was received from the National Housing Authority (formerly the office of the commissioner, (Settlement) nor was permission accorded in favour of acceptance of the Trust’s payments of the remaining installments; on 10th August 1989, the then Assistant Commissioner, Settlement, Ministry of Works issued an order cancelling the allotment of the Trust property of 5.45 acres of land alleging that the Trust has violated clause 3 of the Deed of Lease dated 21st  December 1981 by failing to complete the constructions on the leased property within two years of the date of commencement of the lease; further, the said order allotted 5 bighas of the property in favour of the Trust and requested delivery of possession of the remaining area of the leased property to the Executive Engineer, Dhaka Housing Authority, Division-2, Mohammadpur within seven days; on 27th November 1989, the Trust filed a suit in the court of the 2nd subordinate judge Dhaka being Title Suit No. 422 of 1989 challenging the said order of cancellation of the Deed of Lease as being illegal and invalid; by a judgment and order 29th August 1993, the 2nd court of Subordinate judge, Dhaka upon hearing the parties decreed the suit in favour of the petitioner and held that the order dated 10th August 1989 issued by the Assistant Commissioner cancelling the allotment in favour of the Trust was illegal and invalid and further that the Trust’s title and possession of the leased property obtained by virtue of the Deed of Lease dated 21st December 1981 had not been affected in any manner by the order dated 10th August 1989; no appeal was filed against the said judgment and order of the Second Court of Subordinate Judge, Dhaka dated 29th August 1993 in Title Suit No. 422 of 1989; 

3.            After all most 13 years of the exparte judgment and decree of Title Suit No. 422 of 1989 on 22.06.2006 the opposite parties the National Housing Authority (formerly, the Deputy Commissioner (Settlement), Segunbagicha and Deputy Director (Land and Estate) Management, National Housing Authority (formerly, the Assistant Commissioner (Settlement), Segunbagicha  filed an application under order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree in Title Suit No., 422 of 1989, whereupon the said application was registered as Miscellaneous Case No. 17 of 2006 ( hereinafter referred to as the ‘Miscellaneous Case’); on the same day (i.e. 22nd  June 2006), the opposite parties filed an application for condonation of delay of 13 years in filing the Miscellaneous case.

4.            Upon careful examination of the order sheet of the Miscellaneous case, the petitioner came to know that an application for condonation of delay in filing the Miscellaneous case has been filed on 22nd June 2006 and that further by Order No. 39 dated 26th June 2006, the learned Joint District Judge had deferred determination of the issue of limitation until final hearing of the Miscellaneous case; thereafter the petitioner filed an application for disposal of the application for condonation of delay prior to proceeding any further with the hearing of the miscellaneous case; in the said application the petitioner alleged that the opposite parties have made no attempt to explain the long delay of 13 years in filing the Miscellaneous case although they were required by law to provide a satisfactory explanation for each and every day’s delay in filing the Miscellaneous case; the petitioner also stated that it is a well settled principle of law that when an application is filed for condonation of delay in filing an application for setting aside an ex-parte decree, the application for condonation of delay should be heard and disposed of prior to proceeding with the hearing of the application for setting aside the ex-parte decree.

5.            The learned 2nd court of Joint District judge, Dhaka rejected the petitioner’s application for disposal of the application for condonation of delay dated 22nd June 2006 prior to proceeding any further with the hearing of the miscellaneous case. The learned Joint District Judge rejected the petitioner’s application upon observing that the application for condonation of delay has been disposed of in accordance with section 5 of the Limitation Act inasmuch as by order No.39 dated 26th June,2006, the learned Joint District Judge had held that the question of limitation will be determined at the time of disposal of the Miscellaneous Case; It was further held that the petitioner had not only filed a written objection to the Miscellaneous Case but has also cross-examined the witnesses adduced by the opposite parties in the miscellaneous case and that in such circumstances, in view of the delay in filing the application, the said application is liable to be rejected. 

6.            Being aggrieved by the impugned order No. 73 dated 03.02.2013 passed in Miscellaneous Case No. 17 of 2006 rejecting an application for disposal of an application for condonation of delay prior to proceeding any further with the hearing of the Miscellaneous Case, the plaintiff as petitioner preferred this revisional application and obtained the instant Rule.

7.            Mr. Imran Siddique and Mr. Syed Mohammad Raihan, the learned Advocates appear on behalf of the petitioner and Mr. Swapan Kumar Dutta with Mr. Md. Delwar Hossain, the learned Advocates appearing on behalf of the opposite parties, oppose the Rule.

8.            Mr. Imran Siddique, the learned Advocate appearing on behalf of the petitioner takes us through the revisional application, the impugned order, the settled principle of law with regard to Section 5 of the Limitation Act and connected materials on record and submits that:

(i)     the learned Joint District Judge, 2nd Court, Dhaka committed serious error of law occasioning failure of justice inasmuch as it rejected the petitioner’s application for disposal of the application for condonation of delay on the ground that by order No. 39 dated 26th June 2006, the learned court had in fact disposed of the application for condonation of delay in accordance with Section 5 of the Limitation Act, although it is evident from a plain reading of order No. 39  that the learned judge had deferred determination of the issue of limitation until final hearing of the Miscellaneous case No. 17 of 2006;

(ii)   the learned Joint District Judge failed to appreciate that merely because the petitioner had contested the Miscellaneous case by filing a written Objection and by cross examining the witnesses adduced by the opposite party, the same cannot in law preclude the petitioner from contesting the application for condonaton of delay and/or praying for a disposal of the same prior to hearing the Miscellaneous case;

(iii) the learned Joint District judge committed serious error of law occasioning failure of justice inasmuch as it failed to appreciate the well settled principle of law that the application for condonation of delay has to be heard and disposed of prior to hearing the application for setting aside an ex-part decree;

(iv) the learned Joint District Judge committed a serious error of law occasioning failure of justice inasmuch as it failed to appreciate that by rejecting the application for disposal of the application for condonation of delay and proceeding to hear the Miscellaneous case, the learned Judge was in fact allowing the application for condonation of delay without giving the petitioner an opportunity to contest the same and as such the order dated 03.02.2013 is bad in law and liable to be set aside;

(v)   the learned Joint District Judge by rejecting the petitioner’s application for disposal of the application for condonation of delay and proceeding to hear the Miscellaneous case, the learned judge has in fact condoned a delay of more than 13 years in filing the Miscellaneous case, and as such the learned judge committed a serious error of law occasioning failure of justice;   

9.            With regard to interpretation of Section 5 of the Limitation Act Mr. Imran Siddique, the learned Advocate further submits that:

(vi) under Section 5 of the Limitation Act, the learned Judge has to be satisfied that there was/were sufficient cause for not filing the application within the statutory period and that only if the learned Judge is so satisfied, it may proceed to hear and dispose of the application under Order 9, Rule 13 of the Code of Civil Procedure; as such, it is an express requirement of law that an application for condonation of delay has to be favourably disposed of before proceeding to hear the Miscellaneous Case;

(vii)   the learned Joint District Judge, 2nd Court, Dhaka failed to dispose of the application under Section 5 of the Limitation Act before hearing the Miscellaneous Case, it is submitted that Order No. 38 dated 22.06.2006 admitting the application under Order 9 Rule 13 of the Code of Civil Procedure has been passed in violation of section 5 of the Limitation Act; as such, the said Order No. 38 dated 22.06.2006 and all subsequent orders in the Miscellaneous Case has/have been passed without jurisdiction; accordingly, such orders are void ab-initio, non-est and a nullity in the eye of the law;

10.        In order to establish the petitioner’s case, the petitioner learned Advocate Mr. Siddique has referred to the following decisions which are as under:

(1)         AIR 2000 Cal 280

(2)         AIR 1976 Cal 415

(3)         AIR 1930 Allahabad 815

(4)         AIR 1962 (SC) 361

(5)         53 DLR (HCD) 183

(6)         AIR 1987 (SC) 1242

(7)         36 DLR (AD)1

(8)         49 DLR (AD) 187

(9)         2 PLR-287 (Dhaka series) 

(10)      45 DLR (AD) 38

(11)     42 DLR-391

11.         Mr. Swapan Kumar Dutta, the learned Advocate appearing on behalf of the opposite party Nos. 1-2 takes us through the revisional application, the impugned order and connected materials on record and contends that:

(a)   the petitioner intentionally and fraudulently refrained himself from producing the Memorandum of Articles and Articles of Association of the alleged trust along with the alleged letter of allotment with a view to keeping the Hon’ble Court in dark about the actual facts; actually all those are collusive and fraudulent documents; it is also very much important to mention here that the petitioners failed to comply with the provision of the terms and conditions of the said Allotment Letter, it has been cancelled automatically according to the provisions of Section 2 and 3 of the Government Grants Act;

(b)   the petitioner obtained the ex-parte judgment and decree by practicing fraud upon the court as well as on this opposite party; the moment these opposite parties came to know about the same filed Miscellaneous Case No. 17 of 2006 along with an application for condonation of delay under Section 5 of the Limitation Act, 1908; in the course of trial of the miscellaneous case as the fraudulent activities of the petitioner reached the verge of revelation, the petitioner fraudulently filed an application for hearing the application under Section 5 of the Limitation Act,1908 separately keeping the said miscellaneous case undisposed of and the learned trial court upon proper consideration of the malicious/ malevolent intentions of the petitioner rejected the same outright correctly so there can’t be any wrong in it;

(c)    the grounds setforth in the revisional application have got no legal or factual basis; rather those are tainted with fraud and malafides and, as such, the matter  calls for no consideration;

(d)   the petitioner is not a “party aggrieved by the impugned order and an error of law has not  occasioned failure of justice” within the meaning of Section 115(1) of the Code of Civil Procedure and as such the Rule is liable to be discharged with cost;

(e)    the application filed by the petitioner before the learned Joint District Judge for hearing the application for condonation of delay is not maintainable, since no specific prayer has been made in recalling the order No. 39 dated 26.06.2006. 

12.        In reply the learned Advocate for the petitioner Mr. Imran Siddique submits that Badshah Faisal Trust has been functioning since 1981 on the basis of the Trust Deed dated 10.04.1981 and the Lease Deed dated 21.12.1981. No allegation has been made by the Government or by the National Housing Authority that the said Trust Deed, Lease Deed and the allotment order are forged, fabricated and collusive. Such allegations have been made without any basis for the first time in the counter affidavit on behalf of the opposite parties, and as such the same are liable to be rejected. The petitioner’s allotment of 5.45 bighas of land was cancelled without serving any show cause notice upon the petitioner and as such, the same, being in violation of the principles of natural justice is patently illegal, and as such the same was rightly declared illegal and void by the learned Joint District Judge.

13.        The petitioner filed an application for hearing of the application for condonation of delay separately inasmuch as it is a clear requirement of Section 5 of the Limitation Act that the learned Joint District Judge has to be satisfied that there was ‘sufficient cause’ for not filing the application under Order 9 Rule 13 of the Code of Civil Procedure within the prescribed period before proceeding to admit the application under Order 9 Rule 13 of the Code of Civil Procedure and as such, there was no malice or ill-intention of the petitioner in filing the application for disposing of the application for condonation of delay separately.

14.        The learned Advocate for the petitioner further replied that it is clear from para 22 of the judgment of the High Court Division in the case of Deputy Commissioner Vs Aswab Ali, reported in 53 DLR 183 that if the issue of limitation is not decided before disposing of the substantive application, it leads to ‘needless expenditure of money’, “unprofitable waste of time’ and ‘unnecessary harassment’  of the parties. On the basis of the judgment reported in 53 DLR 183, the petitioner submits that in the present case, the learned Joint District Judge, 2nd Court, Dhaka by failing to dispose of the application for condonation of delay before hearing the Miscellaneous Case has committed an error of law which has occasioned failure of justice in the form of ‘needless expenditure of money’, “unprofitable waste of time’ and ‘unnecessary harassment’  of the parties. Furthermore, having been subjected to such harassment and hardship, it is evident that the petitioner is an ‘aggrieved party’ within the meaning of Section 115(1) of the Code of Civil Procedure.

15.        The learned Advocate further replied that it is evident from the prayer portion of the application for disposing of the application for condonation of delay before hearing the Miscellaneous case Annexure-“C(1)” to the revisional application and in para nos. 7 and 8 of the said application the petitioner is in substance assailing the legality of order No. 39 dated  26.06.2006. In this regard the petitioner has referred to a judgment of  the Indian Supreme Court reported in AIR 1987 (SC) 1242 where it has been held that it is undesirable to place undue emphasis on form as opposed to the substance of the pleadings and that the pleadings should be construed liberally and that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities .

16.        The learned Advocate for the petitioner next replied on the basis of the decisions reported in AIR 2000 cal 280 and AIR 1976 cal 415 that order No. 38 dated 22.06.2006 having been passed in violation of Section 5 of the Limitation Act is completely without jurisdiction and that accordingly, all subsequent orders in the Miscellaneous case, including Order No. 39 dated 26.06.2006 are without jurisdiction void ab-initio and non est. He further replied that it is settled principle of law that an order which is void ab inito is a nullity in the eye of law and that it is not necessary to make a specific prayer for setting aside such an order.

17.        It has been argued by the opposite party No .2 that the application filed before the learned Joint District Judge for disposal of the condonation application is not maintainable since no specific prayer has been made for recalling the order No. 39 dated 26.06.2006 after entering appearance in the Miscellaneous case on 19.01.2012, filed written objection to the Miscellaneous case and cross examined the opposite party No 2’s witnesses and the application for disposing of the application for condonation of delay prior to hearing the Miscellaneous case, having been filed at a belated stage, is mala fide and liable to be rejected. 

18.        In reply the petitioner submits that the error committed by the learned joint District Judge in failing to dispose of the application under section 5 of the Limitation Act prior to hearing of the Miscellaneous case is a ‘jurisdictional error’ or a ‘jurisdictional defect’ and it is a settled principle of law, that consent, waiver and estoppels does not operate to cure a ‘jurisdictional error’ or a ‘jurisdictional defect’. As such mere participation in the proceedings of the Miscellaneous case by the petitioner will not cure the jurisdictional error committed by the learned Joint District Judge, 2nd Court, Dhaka for hearing the Miscellaneous Case without disposing of the application for condonation of delay. In support of his submission Mr. Siddique, the learned Advocate for the petitioner relies upon the decision reported in 36 DLR (AD)1, 49 DLR (AD) 187 (paragraph 64).

19.        It has been alleged by the opposite party No 2 that the petitioner had resorted to fraud in obtaining the exparte decree and that his documents are all forged and collusive and that furthermore, in case of fraud, limitation will run from the date of detection of the fraud.

20.        In reply the petitioner responds to the allegations of fraud and submits that the question of fraudulent execution of lease deed has been made for the first time by the National Housing Authority in its counter affidavit. In the last 35 years the National Housing Authority has never questioned the authenticity of the lease deed dated 21.12.1981. In fact it is clear from the cancellation of allotment order by the National Housing  Authority that on 21.12.1981, a lease deed was in fact executed in favour of the petitioner; there is nothing on record to show that the petitioner resorted to fraud in obtaining the ex-parte decree in Title Suit No. 422 of 1989; in fact, it is evident from the Order Sheet of the said Title Suit that the Opposite party No.2 contested the suit by filing Written Statement; as such, no question arises of the petitioners obtaining the ex-parte decree fraudulently; the petitioner does not dispute the principle of law that where fraud is established, limitation will run from the date of detection of fraud. However, the said principle of law is not applicable in the instant case as this Hon’ble court is neither hearing the application under Section 5 of the Limitation Act, nor is it hearing the Miscellaneous Case under Order 9 Rule 13 of the Code of Civil Procedure. So, such argument may be made before the learned Joint District Judge, Dhaka at the time of disposing of the application under Section 5 of the Limitation Act and application under Order 9 Rule 13 of the Code of Civil Procedure.

21.        It has been argued by the Opposite party No.2 that since section 141 of the Code of Civil Procedure applies to applications under Order 9 Rule 13 of the Code of Civil Procedure, the Opposite parties are at liberty to file applications under Order 6 Rule 17 of the Code of Civil Procedure to amend the application in the Miscellaneous Case.

22.        It transpires that the learned Joint District Judge misconceived and misconstrued the Section 5 of the Limitation Act. It has already been decided by this Division in the Case of Deputy Commissioner and Chairman, District Fisheries Tender Committee and others –vs- Md. Aswab Ali and others reported in 53 DLR (2001) HCD page 183 in which, by detailed discussion of the provision of Section 5 of the Limitation Act decided as under:

“……………………………...22. Before parting I am inclined to record an observation which is of a great pubic importance. Learned District Judge admitted the appeal provisionally. Thereafter, he called for record of the case, issued notices and took up many interlocutory matters like recording an order of stay staying the operation of the judgment and decree under appeal and order for maintenance of status quo between the parties with respect to possession of suit property. Learned District Judge recorded the testimony of plaintiff No.1 as PW 1 and admitted some documents which have been exhibited as Exhibit 8 series. The proceeding of the appeal before District Judge not only commenced but proceeded to a great extent. Learned District Judge, thereafter, felt that it was imperative on his part to decide the question of limitation being a fundamental question. The procedure adopted by learned District Judge is wholly impermissible and cannot be approved at all. The procedure led to needless expenditure of money incurred by the parties. The time starting from admission of the appeal till the recording of impugned order was unprofitable waste of time. It was the duty of learned District Judge to decide the question of limitation at the first hearing of the appeal and if a court felt that delay could not be condoned proceeding of the appeal before him would have been stood buried at the initial stage saving the parties from unnecessary harassment.”

         Above “quoted” the decision is applicable in the facts and circumstances of the instant case and so we find no reason to differ with the view taken in that case.

23.        In the submissions and references put forward by Mr. Imran Siddique, the learned Advocate for the petitioner before us, we find merit and force and the contentions made by the learned Advocate for the opposite party No.2 are mainly matters of merit of the suit and  hence irrelevant in the context of the disposal of the rule.

24.        We have considered the legality and propriety of the order under challenge in this revisional application. The learned Joint District Judge without taking into account the legal aspects of the matter, facts and circumstances of the case in their proper perspective, passed the impugned order.

25.        In view of the discussions made in the foregoing paragraphs, vis-à-vis the law, we find merit in the revisional application. So the learned Joint District Judge, 2nd Court, Dhaka was wrong in rejecting the application for disposal of the application for condonation of delay dated 22.06.2006 prior to proceeding any further with the hearing of the Miscellaneous Case No. 17 of 2006  and by that reasons, the impugned order is hereby set aside and consequently the application for disposal of the application for condonation of delay dated 30.01.2013 (Annexure-“F” to the revisional application under Section 115(1) of the Code of Civil Procedure) is hereby allowed and the learned Joint District Judge, 2nd Court, Dhaka is directed to hear and dispose of the application for condonation of delay within 2(two) months from the date of receipt of the judgment.  

26.        Resultantly, this Rule arising out of the revisional application is, thus, made absolute, however, without any order as to costs.

27.        The order of stay passed by this court at the time of issuance of the Rule is hereby vacated. 

Send a copy of the judgment and order to the concerned court below at once.

Ed.



Civil Revision No. 369 of 2013