Md. Solaiman Vs. Ruma Akter and others [4 LNJ (2015) 499]

Case No: Civil Revision No. 3602 of 2014

Judge: Sheikh Abdul Awal,

Court: High Court Division,,

Advocate: Mr. Zainul Abedin,Mr. Syed Haider Ali,,

Citation: 4 LNJ (2015) 499

Case Year: 2015

Appellant: Md. Solaiman

Respondent: Ruma Akter and others

Subject: Jurisdiction of a Court,

Delivery Date: 2015-05-14


HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Sheikh Abdul Awal, J


Judgment on
14.5.2015
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Md. Solaiman
. . . Plaintiff-Petitioner
-Versus-
Ruma Akter, Head Mistress, Khash Hawla Govt. Primary School, Bhairab, Kishoregonj and others.
...Defendant-Opposite parties
 
Civil Courts Act (VII of 1870)
Section 21(1)
When the law has not authorized the District Judge to entertain and hear the appeal valued beyond Tk. 5, 50,000/=, the appeal was wholly incompetent. . . . (14)

Code of Civil Procedure (V of 1908)
Section 115
Where an order or judgment is passed by a Court which lacked inherent jurisdiction in the sense that it had no competence to entertain and hear the case, the order is a nullity and no amount of consent of the parties or mere mistake of the parties can confer validity to the same. . . . (22)

Code of Civil Procedure (V of 1908)
Section 115
True it is that the petitioner went for the hearing of the appeal without raising any objection as to the pecuniary jurisdiction of the District Judge but the objection in this case being apparent on the face of the Memo, of appeal and there being an inherent incompetence in the District Judge to even entertain the appeal, an omission on the part of the petitioner to take exception to his jurisdiction could not legalise the acts of the District Judge. . . . (23)

Code of Civil Procedure (V of 1908)
Section 115
Jurisdiction of a Court goes to the very root of the matter brought before it, and if the court got no jurisdiction, everything shall fall through. . . . (24)
 
59 DLR 470, Kiran Singh and others Vs. Chaman Paswan and others, A.I.R 1954 (S.C) 340; Ledgard Vs. Bull, 13 I.A., 144; Meenakshi Naidoo Vs. Subramaniya Sastri, 14 I.A., 160; Md. Mahmudul Haque Vs. Md. Shamsul Alam, 36 DLR. (AD) 179; Kanai Lal Ghose Vs. Jatindra Nath Chandra, A.I.R 1918 Cal. 925 and  Hiralal Patni Vs. Sree Kali Nath, A.I.R. 1962 (S.C) 199 ref.

Mr. Zainul Abedin with
Mr. Abdur Rahman, Advocates
...For the petitioner
Mr. Syed Haider Ali, Advocate
.... For the opposite party Nos. 2-4 and 6-10.

Civil Revision No. 3602 of 2014
 
JUDGMENT
Sheikh Abdul Awal, J.
 

This Rule was issued calling upon the opposite parties to show cause as to why the impugned Judgment and order dated 24.9.2014 passed by the learned Additional District Judge, 3rd Court, Kishoregonj in Misc. Appeal No.76 of 2014 allowing the appeal and setting aside the order dated 7.8.2014 passed by the learned Joint District Judge, 2nd Court, Kishoregonj in Other Class Suit No.36 of 2014 granting temporary injunction should not be set-aside and/or such other or further order or orders passed as to this Court may seem fit and proper.
 
Facts of the case, briefly, are that the petitioner herein as plaintiff  instituted the  aforesaid Other Class Suit No.36 of 2014 before the learned Joint District Judge, 2nd Court, Kishoregonj praying the following reliefs:
 
(ক) ~~ভরব থানাধীন খাসহাওলা সরকারী প্রাথমিক বিদ্যালয় পরিচালনা কমিটি/২০১৪-১০১৬ এর গত ২৫/০২/২০১৪ তারি­খর গৃহিত সকল কার্যত্র্রম বাতিল ও পুনরায় কমিটি গঠ­নর আ­দশ দি­ত,
(খ) বিজ্ঞ আদাল­তর আ­দশ মোতা­বক উক্ত পরিচালনা কমিটি­ত প্রজ্ঞাপ­নর নিয়ম বর্হিভূত ভা­ব কথিত ২নং বিবাদী­ক বি­দ্যাৎসাহী পুরুষ সদস্য হিসা­ব ম­নানয়­নর মাধ্য­ম উক্ত বিদ্যালয় পরিচালনা কমিটির সভাপতি ঘোষণা বাতিল করতঃ এই বাদী/ প্রার্থী­ক সভাপতি প­দ ঘোষণার আ­দশ দি­ত ও
(গ) বিজ্ঞ আদালত ন্যায় বিচা­রর স্বা­র্থ বাদী/প্রার্থী যে যে প্রতিকার পে­ত পা­র তাহা পাওয়ার আ­দশ প্রদা­ন সুবিচার করি­ত মর্জি হয়z
 
Plaintiff’s  case, in short, is that  he was the former President of the Managing Committee of Khas Hawla Government Primary School and he has also been selected as Education Enthusiastic male member by the Headmaster of the School for forming the next committee of 2014-2016 with the due process of law,  but the Defendant- No.2 with malafide intention  formed a Managing Committee of Khas Hawla Government Primary School under Bhairab Thana, District : Kishoregonj at his own motion by  regulation  dated 25.02.2014  according to provision of  Rules and Regulations inserted in the circular No.38.008.035.00.00.007.2012-688 dated 15.11.12 of the Ministry of Primary and Mass Education and hence, the suit.  Immediately, after institution of the suit the plaintiff filed an application under Order 39, Rule 1 of the Code of Civil Procedure before the learned Joint District Judge, 2nd Court, Kishoregonj seeking temporary injunction against the purported Managing Committee formed by  meeting dated 25.022014.

The defendant Nos.2-4, 6-8 and 10 resisted the said application by filing  written objection contending, inter alia, that the decision of the Managing Committee of Khas Hawla Government Primary School dated 25.02.2014  was perfectly justified and in accordance with law. The plaintiff has no prima-facie case and the injunction application is misconceived and uncalled for.

The learned Joint District Judge, 2nd Court, Kishoregonj after hearing the parties by his order dated 7.8.2014 granted temporary injunction  restraining  the defendant No.2 from  doing any activities in the Managing Committee dated 25.02.2014 of Khas Howla Government Primary School, Bhairab, Kishoregonj till disposal of the suit.

The defendants took an appeal being Misc. Appeal No.76 of 2014 thereform. The appellate Court after hearing by the impugned  judgment and order dated  24.9.2014  reversed the order dated 7.8.2014 passed by the learned Joint District Judge, 2nd Court, Kishoregonj.

Being aggrieved by the aforesaid impugned judgment and order dated 24.9.2014, the petitioner moved this Court and obtained the present Rule.

Mr. Zainul Abedin, the learned Advocate appearing for the plaintiff-petitioner submits that the learned Judge of the appellate Court below misconceived the facts of the case as well as the order of the learned Joint District Judge  and wrongly set aside the same. He next in the course of his argument after placing the relevant law submits that  the Ministry of Primary and Mass Education published Rules and Regulations vide circular No.38.008. 035. 00.00.007.2012-688 dated 15.11.12 for forming committee, Ad-hoc Committee, etc. as to Govt. Registered and Community Primary School where specifically mentioned in serial Nos.1.2/1.3 that the Education Enthusiastic male and female member must be selected by the Headmaster of the School concern in consultation with the local Member of Parliament and the Headmaster of Khas Howla Govt. Primary School selected 3(three) male members  including the plaintiff and 3(three) females for Education Enthusiastic persons and sent the letter to the Member of Parliament, 167, Kishoregonj-6 for his consent on 22.01.2014 as per provisions of  Rules and Regulations inserted in the circular No. 38.008.035.00.00.007.2012-688 dated 15.11.12 of the Ministry of Primary and Mass Education and the local Member of Parliament has given his kind consent on 18.02.2014 nominating the plaintiff-petitioner as Education Enthusiastic male member for the Managing Committee. He further submits that  the earlier Managing Committee of Khas Howla Govt. Primary School took resolution on 20.01.2014 on various matters including the selection of Education Enthusiastic male and female members for the next committee where the plaintiff and defendant No.2 also present there and sitting Managing Committee selected the plaintiff as Education Enthusiastic Male No.1 and one Fatema Begum as Education Enthusiastic Female No.1 and the defendant No.2 is also one of the signatory of that  Resolution  and it is evident that the defendant- opposite party No.2 sent a letter to the Local Member of Parliament without mentioning any date and one Rashida Begum also sent a letter to the Local Member of Parliament,  who has given his signature  on the petition without giving any date, but   the defendant No.2 at his own motion  mentioned a date as being 13.02.2014 which appears to be manufactured and the defendant No. 2 also formed a Managing Committee showing him a President by  violating the Rules of the Ministry of Primary and Mass Education and the same has not yet been effected, but the appellate Court below without considering all these vital aspects of the case from a correct angle allowed the appeal and set-aside the order of injunction  arbitrarily and the same has occasioned failure of justice.

Mr. Zainul Abedin further submits that the trial court on  considering the facts of the case and the case made out by the plaintiff petitioner that the Headmaster of Khas Hawla Govt. Primary School declared an election schedule on 25.12.2013 as per the circular No. 38.008.035.00.00.007.2012-688 dated 15.11.2012 of the Ministry of Primary and Mass Education for forming Managing Committee of the said School fixing the date for election on 23.02.2014,  but the opposite party No.2 arranged a general meeting where one Md. Khalil Mia presided over the meeting among the persons who are not voters for the election of forming Managing Committee of the school and they  took a illegal  Resolution selecting  the defendant-opposite party No.2 as an Education Enthusiastic Male Member among others and appointing  him president of  the Managing Committee of Khas Howla Government Primary School, Bhairab, Kishoregonj  2014-2016 without any vote before the scheduled date of the vote i.e. on 23.02.2014 factually found prima facie  case,  balance of convenience and inconvenience is in favour of the plaintiff, but  the court of appeal below  without properly applying its judicial mind into the facts and circumstances of the case and law bearing on the subject most illegally held that balance of convenience and inconvenience is not in favour of the plaintiff, rather it is well in favour of the defendants and the same has occasioned failure of justice.

Finally, Mr. Zainul Abedin, candidly   upon referring the plaint of the suit has assailed the impugned judgment on the ground that the District Judge, Kishoregonj  or Additional District Judge, Kishoregonj had no  jurisdiction  to entertain and decide the appeal inasmuch as  sub-section (1) of section 21 of the Civil Courts Act invests a District Judge with the Jurisdiction to entertain and hear appeals in which it lays down that an appeal from a decree or  order of a subordinate Judge shall lie to the District Judge where the value of the original suit in which or in proceedings arising out of which the decree or order was made does not exceed Five Lac Taka and the suit out of which the above Miscellaneous Appeal arose  was admittedly valued at Tk. 5,50,000/= (Five Lac fifty thousand)  which exceeds the pecuniary limit of the District Judge and consequently the appeal would have filed  to this Court and not to the District Judge, but the District Judge, Kishoregonj wrongly assumed jurisdiction, although the law has not authorised the District Judge to entertain and hear the appeal valued beyond Tk. 5,50,000/=, in view of this legal position the appeal was entertained by the District Judge, Kishoregonj and heard by the Additional District Judge,  Kishoregonj without jurisdiction. Mr. Zainul Abedin to fortify his last  branch of argument   has relied on the decision reported in 59 DLR 470.

Mr. Syed Haider Ali, the learned Advocate appearing for the opposite party Nos.2-4 and 6-10, on the other hand, supports the impugned judgment and contends that the learned Additional District Judge was perfectly justified in setting aside the order of the trial Court dated 7.8.2014 on the clear finding that the trial Court below without considering the facts of the case and the case made out by the defendants most illegally held  that prima facie case, balance of convenience and inconvenience is in favour of the plaintiff-petitioner, though in the facts and circumstance of the case, the balance of convenience and inconvenience is well in favour of the defendants. He further submits that  the appellate court below  after a detailed discussion of the attending circums-tances borne out by records rightly  held that the entire proceeding of election of the Managing Committee of the Khas Hawla Govt. Primary School was made  in accordance of law and also within the knowledge of the Hon’ble Member of the Parliament and the decision taken by the Managing Committee of the Khas Hawla Govt. Primary School  on 25.02..2014 has been acted upon  and therefore, the plaintiff does not have any  prima facie case for injunction inasmuch as  balance of convenience and inconvenience is infavour of the defendants and the plaintiff shall not suffer any irreparable loss and injury and accordingly, the plaintiff is not entitled to get an order of  temporary injunction as sought for. Finally,  Mr. Syed Haider Ali relying on a decision reported in 13 BLD 648 submits that the jurisdictional defect is not itself a ground for interference in revision unless it has resulted in an error in the decision occasioning a failure of justice.

Now, to deal with the contentions raised by the parties, I feel it necessary to decide first whether the District Judge, Kishoregonj acted in excess of jurisdiction in entertaining the Misc. Appeal. For proper appreciation of this question in its true prospective it will be useful to look to section 21 of the Civil Courts Act (amended Act, 2001)   which reads as follows: 
  
Sec.-21:  Appeal from Joint District Judge, etc.—1) Save as aforesaid, an appeal from a decree or order of a (Joint District) Judge shall lie-
  • to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed (five lac Taka) and
  • to the High Court Division in any other case.
(2) Save as aforesaid, an appeal from a decree or order of a (Senior Assistant Judge or an Assistant Judge) shall lie to the District Judge.
(3) Where the function of receiving any appeals which lie to the District Judge under sub-section (1) or sub-section (2) has been assigned to an (Additional District) Judge, the appeals may be preferred to the (Additional District) Judge.
(4) The High Court Division may, with the previous sanction of the Government, direct, by notification in the official Gazette, that appeals lying to the District Judge under sub-section (2) from all or any of the decrees or orders of any (Senior Assistant Judge or an Assistant Judge), shall be preferred to the Court of such (Joint District) Judge as may be mentioned in the notification, and the appeals shall thereupon be preferred accordingly.
 
From a combined reading of sub-section (1), (2), (3) and (4) of section of section 21 of the Civil Courts Act ( as amended Act, 2001), it is manifestly clear  that sub-section (1) of section 21 of the Civil Courts Act invests a District Judge with the Jurisdiction to entertain and hear appeals. It lays down that an appeal from a decree or  order of a  Joint District  Judge shall lie to the District Judge where the value of the original suit in which or in proceedings arising out of which the decree or order was made does not exceed Tk. 5,50,000/=  and to the High Court Division in any other case.

In this case the suit out of which the above Miscellaneous Appeal arose  was admittedly valued at Tk. 5,50,000/= (Five Lac fifty thousand),    which exceeds the pecuniary limit of the District Judge and consequently the appeal would have filed to this Court and not to the District Judge, but the District Judge, Kishoregonj  wrongly assumed jurisdiction and Additional District Judge decided the appeal. When the law has not authorised the District Judge to entertain and hear the appeal valued beyond Tk. 5,50,000/=, the appeal was wholly incompetent. The legal position thus is that the appeal was entertained by the District Judge, Kishoregonj and heard by the Additional District Judge, Kishoregonj without jurisdiction.

On the face of Section 21 of the Civil Courts Act, Mr. Syed Haider Ali, learned Advocate for the opposite-party Nos.2-4 and 6-10 found it difficult to contend that the appeal before the District Judge, Kishoregonj was competent. He has, however, urged that the petitioner participated in the appellate proceeding without raising any objection as to the jurisdiction of that Court and on that count the impugned judgment and order cannot  be rendered null, and void. He has also urged that the jurisdictional defect is not itself a ground for interference in revision unless it has resulted in an error in the decision occasioning a failure of justice.

In the case of Kiran Singh and others V. Chaman Paswan and others reported in , A.I.R 1954 (S.C) 340, it was held  as follows:
 
“It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties.”
 
Similar view was taken in  the case of Ledgard V. Bull, 13 I.A., 144. In that case a suit was brought in the Court of a subordinate Judge who had no competence to try it.  By consent of parties the same was transferred to the Court of District Judge for convenience of trial, The privy Council held that the court in which the suit was originally brought was lacking in inherent jurisdiction in the sense that it was incompetent to try it and whatsoever happened subsequently was null and void because consent of parties could not  operate to confer jurisdiction on a Court which was not competent to try the suit. In course of the judgment their Lordships made the following observations.

The same principle was re-iterated by the Privy Council in the case of Meenakshi Naidoo V. Subramaniya Sastri, 14 I.A., 160.

In the case of Md. Mahmudul Haque V. Md. Shamsul Alam, 36 DLR. (AD) 179, their lordships held that when the law has conferred jurisdiction expressly, no amount of consent by the parties can invest a Court with jurisdiction which is not given by law.

This principle was also followed in the case of Kanai Lal Ghose V. Jatindra Nath Chandra reported in A.I.R 1918 Cal. 925 where an appeal was filed before the district Judge who had no jurisdiction to entertain and hear the appeal but he heard the same without any objection from the parties.

In the case of Hiralal Patni V. Sree Kali Nath, A.I.R. 1962 (S.C) 199 the Supreme Court of India pointed out that “competence of a Court to try a case, whether such competence is with regard to the nature of the subject matter or to its pecuniary  jurisdiction, goes  to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction.”

It is thus firmly established that where an order or judgment is passed by a Court which lacked inherent jurisdiction in the sense that it had no competence to entertain and hear the case, the order is a nullity and no amount of consent of the parties or mere mistake of the parties can confer validity to the same.

True it is that the petitioner went for the hearing of the appeal without raising any objection as to the pecuniary jurisdiction of the District Judge but the objection in this case being apparent on the face of the Memo, of appeal and there being an inherent incompetence in the District Judge to even entertain the appeal, an omission on the part of the petitioner to take exception to his jurisdiction could not legalise the acts of the District Judge. The submission of Mr. Syed Haider Ali has, therefore, no foundation.

Jurisdiction of a Court goes to the very root of the matter brought before it, and if the court got no jurisdiction, everything shall fall through. Mr. Syed Haider Ali is not correct in submitting that the court’s jurisdiction is a mere technicality, which is not itself a ground for interference in revision unless it has resulted in an error in the decision occasioning a failure of justice.  The District Judge  or Additional District Judge  having no jurisdiction over the matter,  the impugned judgment passed in Miscellaneous Appeal is void.

Since the impugned judgment is to be  null and void on the ground of court’s jurisdiction   it is needless to go into the second point. But,  in the facts and circumstance of the case I think it will be  wise to decide that whether the learned judge of the appellate court below was justified in holding that the plaintiff does not have any prima facie case for injunction inasmuch as balance of convenience and inconvenience is in favour of the defendants.
On scrutiny of the record, it appears that the plaintiff petitioner sought for temporary injunction restraining  the defendant No.2 from  performing any activities in the Managing Committee of Khas Howla Government Primary School, Bhairab, Kishoregonj till disposal of the suit  on the allegation that  the defendant No. 2 was not selected as Education Enthusiastic male member  of   the Managing Committee of Khas Howla Government Primary School, Bhairab, Kishoregonj 2014-2016 in accordance with the  procedure of Government Circular vide its Memo No.38.008.035.00.007.2012-688 dated 15.9.12 of Primary and Mass Education Ministry, school-2. The plaintiff petitioner contends that the Ministry of Primary and Mass Education published Rules and Regulations vide circular No.38.008.035.00.00.007.2012-688 dated 15.11.12 for forming committee, Ad-hoc Committee, etc. as to Govt. Registered and Community Primary School where specifically mentioned in serial Nos.1.2/1.3 that the Education Enthusiastic male and female member must be selected by the Headmaster of the School concern in consultation with the local Member of Parliament and the Headmaster of Khas Howla Govt. Primary School selected 3(three) male members  including the plaintiff and 3(three) females for Education Enthusiastic persons and sent the letter to the Member of Parliament, 167, Kishoregonj-6 for his consent on 22.01.2014 as per provisions of  Rules and Regulations inserted in the circular No. 38.008.035.00.00.007.2012-688 dated 15.11.12 of the Ministry of Primary and Mass Education and the local Member of Parliament has given his kind consent on 18.02.2014 nominating the plaintiff-petitioner as Education Enthusiastic male member for the Managing Committee of the school.

The defendant No. 2 contended that after exhausting all the  formalities in accordance with law the Managing Committee of Khas Howla Government Primary School, Bhairab, Kishoregonj by its regulation dated 25.02.2014 selected the defendant No. 2 as Education Enthusiastic male member  and appointed him president of  the Managing Committee of Khas Howla Government Primary School, Bhairab, Kishoregonj  2014-2016 and as such question of granting injunction does not arise at all.

The trial Court factually found that the  plaintiff has a good prima facie case for injunction and  that   balance of convenience and inconvenience is in-favour of the plaintiff and granted temporary injunction restraining the defendant No. 2 from doing any activities in the Managing Committee of Khas Howla Government Primary School, Bhairab, Kishoregonj  formed by regulation dated 25.02.2014 of the Managing Committee.
On a close perusal of the impugned judgment, it appears that the learned Additional District judge laid unnecessary stress upon certain disputed facts such as proper recomm-endation of the local Parliament  Member  to the plaintiff petitioner or defendant No. 2  as Education Enthusiastic Male member. Both the plaintiff and defendant No. 2 are claiming upon referring their documents that the local Hon’ble Parliament  Member  recommended them as Education Enthusiastic Male member for Managing Committee of Khas Howla Government Primary School. To decide the truth of the matter evidence is necessary which can be available only in course of trial of the suit.
On an overall consideration of the facts, circumstance of the case  and the materials on record, I am of the opinion  that the plaintiff-petitioner  has a good prima-facie case for temporary injunction inasmuch as   the balance of convenience and inconvenience is clearly   in favour of the plaintiff and the plaintiff shall suffer irreparable loss and injury, if injunction is not granted, as prayed for. The Appellate Court misconceived the facts of the case and the order of the learned Assistant Judge and wrongly set aside the same on the finding that the balance of convenience and inconvenience is  in favour of the defendants. Therefore,   I find no difficulty whatever in holding that, the impugned judgment of the  appellate court is a product of non application of judicial mind and suffers from patent illegality. To avoid any prejudice to the defendants in the suit, it is better to refrain from making any further observation. 

Here it may be mentioned that the case relied upon by the defendant-opposite parties  have also no manner of application in the facts and circumstance of the case inasmuch as the facts of the instant case are quite distinguishable from the facts of the cited  case.

In view of my discussions made in the forgoing paragraphs it is by now clear  that the instant Rule must succeed.

In the result, the Rule is made absolute without any order as to costs. The impugned judgment and order dated 24.9.2014 passed by the learned Additional District Judge, 3rd Court, Kishoregonj in Miscellaneous Appeal No.76 of 2014 is set-aside and that the order dated 7.8.2014 passed by the learned Joint District Judge, 2nd Court, Kishoregonj in Other Class Suit No.36 of 2014 granting temporary injunction is restored.
However, in the facts and circumstance of the case the trial Court concerned is directed to hear and dispose of the suit as early as possible preferably within 4(four) months from the date of receipt of this judgment without giving any adjournment to any of the parties.

Let a copy of this judgment be communicated to the Courts concerned at once.

Ed.