Messrs. M.S. Jafar Vs. Subordinate Judge, 3rd Court, Dacca & others, 33 DLR (AD) (1981) 47

Case No: Civil Appeal No.8 3 of 1978

Judge: Kemaluddin Hossain,

Court: Appellate Division ,,

Advocate: Syed Ishtiaq Ahmed,Mr. Abdul Wadud Bhuiyan,,

Citation: 33 DLR (AD) (1981) 47

Case Year: 1981

Appellant: Messrs. M.S. Jafar

Respondent: Subordinate Judge, 3rd Court, Dacca

Delivery Date: 1980-7-28

Supreme Court
Appellate Division
Kemaluddin Hossain, CJ.
Ruhul Islam, J.
Badrul Haider Chowdhury, J.
Messrs. M.S. Jafar
........................ Appellant.
Subordinate Judge, 3rd Court, Dacca & others
July 28, 1980.
Bangladesh (Legal Proceedings) Special Order, 1972
Section 4(1)(2)
This section gave the Government option to withdraw from a suit in which it was impleaded as a party and with effect from such date of withdrawal the proceedings so far as the Government of Bangladesh is concerned shall abate.
Lawyers Involved:
Syed   Ishtiaq   Ahmed,   Sr. Advocate, with Jamiruddin   Ahmed,   Advocate, instructed by S.M.   Hug,    Advocate-on-Record—For     the Appellant.
A.W. Bhuiyan, Dy. Attorney-General, ins­tructed by M.S. Khan, Advocate-on-Record. — For the Respondents.
Civil Appeal No.83 of 1978.Civil, petition for special leave to appeal No. 148 of 1978.
(From the Judgment and Order dated 9.6.1977 passed by the High Court in Writ Petition No. 258 of 1974).
Kemaluddin Hossain CJ.
          This is a certificated appeal at the instance of the appellant M/s M.S. Jafar. There is also an application for special leave to appeal and both are heard together.
2. The appellant before us is a consulting firm of Architects and Engineers. The appel­lant filed the suit before the Subordinate Judge 3rd Court, Dacca, being Title Suit No. 95 of 1970 claiming a sum of Rs. 1,35,000/-due on a contract for the construction of Rajshahi Medical College. The suit was pending after liberation and on application filed by the Government of Bangladesh, under Article 3(2) of the Bangladesh (Legal Proceedings) (Special Order), 1972, briefly the President's Order No. 69 of 1972, in 1969 for the abatement of the suit. The application was resisted by the plain­tiffs-appellant, who contended that Article 4(2) of the President's Order No. 69 of 1972 became inoperative on the promulgation of the Consti­tution of Bangladesh with effect from 16th December, 1972. The Court hearing the parties rejected this contention and by an order allo­wed the application whereupon the proceeding of the suit abated. The appellant moved the High Court in a writ petition challenging the order of the Subordinate Judge. It was urged before the High Court that under paragraph 16(2) of the 4th Schedule to the Constitution the liability devolved in the Government after coming into operation of the Constitution and so there cannot be an abatement of the pro­ceedings, a point which was repelled by the High Court with reference to paragraph 7 of Article 6 of the 4th Schedule of the Constitu­tion.
3. Syed Ishtiaq Ahmed, learned Counsel for the appellant, has reiterated that ground and also submitted that the Respondents Ba­ngladesh, etc. having been substituted in the trial Court in April, 1972 which was before the coming into operation of President's Order No. 69 of 1972, which came into operation on 15th June, 1972, the provisions of abatement contained in Article 4(2) of President's Order No. 69 of 1972 was not applicable. It is to be observed that the suit was pending from 1969 for making the award a rule of the Court at the instance of the Appellant. In April, 1972 as asserted by the appellant, substitution was made before Bangladesh (Legal procee­dings) (Second) Order, 1972 (President's Order No. 69 of 19721 came into force. Then came the Constitution of Bangladesh on 16th De­cember, 1972. Mr. Ishtiaq Ahmed's argument which is reiteration of what was made before the High Court is that with the coming into operation of the Constitution, under paragraph 16(2) of the 4th Schedule of the Constitution, the claim of appellant became a liability of the Government. The reasoning is that before coming into operation of the Constitution since the Government has not applied under President's Order No. 69 of 1972 for abatement, it should be deemed that the Go­vernment has assumed the liabilities of the erstwhile Government of East Pakistan.
It is true that under Article 4(1) of President's Order No. 69 of 1972, all legal pro­ceedings that were pending before and against the Government of Pakistan or East Pakistan in any Court or Tribunal or before any Arbitrator, tax authority or other authority in Bangladesh shall be continued by or against the Government of Bangladesh and the Go­vernment of Bangladesh shall be deemed to be substituted for the Government of Pakistan or East Pakistan as the case may be. Here the proceeding was against the Government of East Pakistan. On the application of the appel­lant the Government of Bangladesh and its officers were substituted, but it is to observ­ed an enactment is to be read as whole and that sub-article (2) gave an option to the Go­vernment of Bangladesh to file at any time before the final hearing of suit or proceeding a written application that it shall not be a party to the proceedings and with effect from the submission of such application the Govern­ment of Bangladesh shall cease to be a party to such proceedings and if such proceedings cannot continue in the absence of the Govern­ment of Bangladesh, the proceedings shall abate. And that was done. It is to be observed that under Article 149 of the Constitution that this Presidential Order continued as existing law and so the application made by the Govern­ment on 13th February, 1973 was quite com­petent. In this view of the matter the contention of Mr. Ishtiaq Ahmed that sub-paragraph (7) of paragraph 6 of the 4th Schedule to the Constitution is not applicable to the abate­ment laws in the proceedings pending in the subordinate Courts and the counter argument of Mr. A. W. Bhuiyan that the existence of abatement laws mentioned in the sub-paragraph is without any limitation need not be gone into.
4. Turning to the question of Mr. Ishtiaq Ahmed that  substitution having taken place in April, 1972, before coming into operation of President's Order No. 69 of 1972, that is, Bangladesh and its officers having already been substituted, and  no objection taken the provisions of Article 4(2) was not applicable, does not stand the test of any legal scrutiny. The substitution before coming of President’s Order No. 69 of 1972 could only be made under the provisions of the Code of Civil Procedure and that could only take place if there would have been any devolution of inte­rest to the substituted party. Here the Go­vernment of East Pakistan was going to be substituted by the Government of Bangladesh and it required a law to that effect for such devolution of interest. Mr. Ishtiaq Ahmed is unable to show any law, on that day, to that effect. The substitution, if any, came by virtue of Bangladesh (Legal Proceedings) (Second) Order, 1972—President's Order No. 69 of 1972, and Article 4(2) of the Order clearly gives power to the Government to ask for abatement of the proceedings, which it has done. This point, therefore, carries no merit.
5. Mr. Ishtiaq Ahmed further submitted that there is nothing to show that the Go­vernment’s decision has been proved in the petition for abatement. Mr. A. W. Bhuiyan in reply has pointed out that in the objection petition the appellant only expressed a doubt and did not clearly challenge that no Govern­ment decision was made. We, however, find that the President’s Order No. 69 of 1972 does not provide any specific mode by which the Government will express its decision regarding the abatement application to be made under this Order. In that view of the matter, the provisions of Order 27, Rules 2, 5 and 8(b) of the Code of Civil Procedure will apply and they are sufficient to give authority to Government Pleader to file application to establish the fact that the decision was made by the Government, unless, of course, the person challenging it could produce any cogent material to hold to the contrary. The provision of the Civil Proce­dure Code is enough to raise a presumption that a petition filed by the Government Pleader is under the authority of the Govern­ment unless it is contradicted by cogent materials by the challenging party. Looked at from any point of view we do not find any substance in this point.
This appeal and the petition for special leave are dismissed but we make no order as to costs.