Case No: Civil Appeal No. 72 of 1992
Judge: Mustafa Kamal ,
Court: Appellate Division ,,
Advocate: Syed Ishtiaq Ahmed,Mr. Awlad Ali,Mr. B. Hossain,,
Citation: 46 DLR (AD) (1994) 154
Case Year: 1994
Appellant: Moni Begum and others
Respondent: Rajdhani Unnayan Kartripakha and others
Subject: Procedural Law,
Delivery Date: 1994-3-31
Shahabuddin Ahmed CJ
ATM AfzaI J
Mustafa Kamal J and
Latifur Rahman J.
Moni Begum and others
Rajdhani Unnayan Kartripakha and others
March 31st, 1994.
Code of Civil Procedure (V of 1908)
Constitution of Bangladesh, 1972
Section 141 of CPC does not in terms apply to proceedings in writ. But the Court in its discretion can apply the principles as distinguished from the technical provisions of the CPC to meet the exigencies of the situation on the ground of justice, equity and good conscience.
Awlad Ali, Advocate instructed by Md. Aftab Hossain, Advocate-on-Record-For the Appellants.
Syed Ishtiaq Ahmed, Senior Advocate instructed by Md. Sajjadul Huq, Advocate-on-Record – For the Respondent No. 1.
B. Hossain, Advocate-on-Record - For the Respondent Nos. 2 & 3.
Civil Appeal No. 72 of 1992.
(From the Judgment and Order dated 3.8.92 passed by the High Court Division in Writ Petition No. 330 of 1987).
Mustafa Kamal J.
The question that arises in this appeal by leave is whether the provisions of section 141 of the Code of Civil Procedure providing that "the procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction", apply in terms to proceedings in writ in the original constitutional jurisdiction of the High Court Division under Article 102 of the Constitution.
2. The appellants filed Writ Petition No. 330 of 1987 in the High Court Division challenging an order of requisition dated 30.12.63 passed by the Special Land Acquisition Officer, Dhaka and a notice dated 4.7.87 issued by respondent No. 1 Rajdhani Unnayan Kartripakha asking the appellants to vacate the requisitioned land. A Rule Nisi was issued thereupon on 15.7.87. Neither respondent No. 1 nor the Government-respondent Nos. 2 and 3 submitted any affidavit-in‑opposition and no one appeared at the time of hearing of the Rule. The learned Judges of the High Court Division after hearing the learned Advocate for the appellants for 3 days made the Rule absolute and wrote out a lengthy judgment on the merit of the case on 3.8.92.
3. On 26.9.92 respondent No. 1 filed an application for restoration of the writ petition on the ground that the law clerk of the learned Advocate for respondent No. 1 did not inform of the date of hearing and so he was unaware of this matter. It was brought to his knowledge by a lawyer friend when the learned Advocate for respondent No. 1 was lying seriously if in Suhrawardy Hospital. When the matter was heard in the High Court Division he was actually out of town to political meetings in his constituency and in visiting his dentist. By filing a supplementary application respondent No. 1 made certain statements with regard to the merit of the Rule itself. The appellants filed an affidavit-in-reply thereto.
4. The learned Judges of the High Court Division after hearing the parties held by its judgment and order dated 3.8.92 that in appropriate cases a court exercising writ jurisdiction may adopt measures analogous to the procedure under Order IX Rule 13 CPC or at least exercise powers for the ends of justice. The learned Judges, however, held that respondent No. 1 was responsible for serious laches and found the explanation for non‑appearance at the time of hearing to be "rather unsatisfactory" and "rather unhappy". But as in the supplementary affidavit certain facts have been set out the learned Judges felt inclined to hear the Rule in the presence of the respondents "for the ends of justice," Respondent No. 1 was directed to pay a cost of Tk. 3,000.00 within 30 days and the application was allowed and the writ petition was restored to its file and number. The writ petitioner‑appellants obtained leave from this judgment and order of the High Court Division.
5. Mr. Awlad Ali, learned Advocate for the appellants, submits that the High Court Division erred in law in holding that for the ends of justice the High Court Division exercising writ jurisdiction can adopt a procedure analogous to Order IX rule 13 CPC. He submits that in exercising a constitutional jurisdiction of an original kind the High Court Division does not preside over a civil proceeding. It exercises a jurisdiction of a special kind not contemplated by the Code of Civil Procedure when it was enacted in 1908 and therefore the provisions of Order IX rule 13 or even a procedure analogous to Order IX, rule 13 CPC are inapplicable to writ proceedings. In any view of the matter, he submits, respondent No. 1 having been found guilty of laches and its explanation for non‑appearance at the time of the hearing of the Rule Nisi having been found unsatisfactory and unhappy the learned Judges of e High Court Division erred in law in restoring the writ petition on extraneous grounds which touched upon the merit of die Rule itself. He further submits that in view of the fact that the writ petition was disposed of after a full hearing for 3 days the High Court Division ought not to have restored the same and the discretion exercised by the High Court Division is not a sound exercise of discretion in the facts and circumstances of the case.
6. Mr. Syed Ishtiaq Ahmed, learned Advocate for respondent No. 1 submit, on the other hand, that the proceeding taken for the enforcement of a civil right is a civil proceeding and whether the proceeding is instituted in a civil Court or in the writ jurisdiction it remains a civil proceeding as it relates to a civil matter and therefore the proceedings will be governed by the Code of Civil Procedure. Alternatively, the High Court Division can adopt the provisions of the Code by analogy if specific Rules covering procedural matters do not exist. He further submits that the learned Judges of the High Court Division have not given any reason why the explanation of respondent No. 1 for non‑appearance on the date of hearing was found to be unsatisfactory and unhappy. It is his contention that the High Court Division exercised its discretion correctly and in consonance with law on being fully satisfied that there are compelling reasons for re‑hearing of the Rule in presence of both sides.
7. Both the learned advocates cited a number of decisions in favour of their respective submissions of which only the relevant ones will be taken into consideration.
8. A question arose under Article 98 of the then Constitution of Pakistan as to whether the High Court in its writ jurisdiction was competent to review its own decision under section 114(b) of the Code of Civil Procedure. The Supreme Court of Pakistan held in the case of Hussain Bakhsh Vs. Settlement Commissioner & ano, 21 DLR (SQ 456 that-
"a proceeding taken for the enforcement of a civil right is a civil proceeding, whatever may be the source of die Court's jurisdiction invoked for enforcement of such a right ......…….Whether a proceeding is civil or not depends on the nature of the subject matter of the proceeding and its object, and not on the mode adopted or the forum provided for the enforcement of the right. A proceeding which deals with a right of a civil nature does not cease to be so merely because the right is sought to be enforced by having recourse to the writ jurisdiction. Judged from these aspects, a proceeding under Article 98 of the Constitution relating to a civil matter is a civil proceeding, although the High Court's jurisdiction in such a proceeding is constitutional jurisdiction of an original kind. A civil proceeding in a court of civil jurisdiction is governed by the Code of Civil Procedure, (see its Preamble). By virtue of section 117 of the Code, a civil proceeding in a High Court is also governed by the provisions of the Code other than the provisions which are specially excepted."
9. The Supreme Court of Pakistan then held that section 114 of the Code conferring power of review not having been made inapplicable to the High Court in the exercise of its original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction will be available to it under the said section 114, if that section is otherwise applicable.
10. In the case of Khademul Islam Chowdhury Vs. Bangladesh, 33 DLR (AD) 111, a judgment passed on review by the High Court Division in its writ jurisdiction was set aside not giving any opportunity of hearing to the appellant but the power of review of the High Court Division under section 114 read with Order 47 rule 4 was not challenged by any party to the appeal.
11. In India different High Courts took different views as to whether section 141 CPC applies to writ proceedings under Article 226 of the Indian Constitution and in view of the conflicting decisions section 141 CPC was amended in India by adding an explanation providing: "In this section, the expression 'proceedings' includes proceedings under Order IX, but does not include any proceedings under Article 226 of the Constitution."
12. Although therefore the decision reported in 21 DLR (SC) 456 laid down that a proceeding under the writ jurisdiction relating to a civil matter is a civil proceeding and is governed by the Code of Civil Procedure and section 114 of the Code conferring power of review is available to the High Court in its writ jurisdiction, it has never been decided specifically by either the Supreme Court of Pakistan before liberation of Bangladesh or by this Court as to whether section 141 CPC in terms applies to writ proceeding.
13. In our view, the High Court Division while exercising the writ jurisdiction relating to a civil matter is no doubt in seisin of a civil proceeding, but it has to be borne in mind that this original constitutional jurisdiction of the High Court Division is aimed at securing a speedy and efficacious remedy to an aggrieved person whose legal or constitutional right has been infringed. It is meant to be a summary and swift mode of disposal of disputes and it is not designed to be a procedurally intricate and remedially elaborate method of trial of suits of original civil jurisdiction. in fact, its procedural simplicity and swiftness marks it out as a readily recognisable and distinctive constitutional remedy. The petitions are ordinarily disposed of oil affidavits, although it is open to the Court to take such other evidence" "in such other manner as it may deem fit" following "such procedure" and making "such orders as may appear to it to be just." The elaborate, detailed and technical Orders and Rules laid down in the Code of Civil Procedure, if literally imported into the writ proceeding through section 141 CPC will be counterproductive and will defeat the very purpose of the speedy remedy of writ. The writ Court will be bogged down to procedural wrangles. In our view therefore the provisions of section 141 of the Code of Civil Procedure do not in terms apply to or govern the proceeding in writ jurisdiction under Article 102 of the Constitution. But we do not rest our views here.
14. For it is common knowledge that none of the High Courts of the sub‑continent has framed any exhaustive and elaborate Rules for disposal of writ applications so as to take care of all procedural eventualities and probabilities. The former High Court of East Pakistan framed Rules to govern the procedure to disposal of applications under Article 170 of the then Constitution of the Islamic Republic of Pakistan, 1956 (see High Court Rules vol. (1). P. 253) which are still being followed and continued and these rules are by no means detailed and exhaustive and do not take care of all possible substantive and procedural situations. There has, therefore, developed a practice in the High Court Division to apply by analogy the principles of the Code of Civil Procedure as and when necessary to meet the exigencies of the situation. For example, in substituting the heirs of a deceased writ petitioner and in restoring a writ petition dismissed for default the High Court Division by analogy applies the principles laid down in die Code of Civil Procedure in the absence of any specific Rules governing the procedure for disposal of such situations under Article 102 of the Constitution.
15. We would therefore like to answer the question raised in this appeal in the, following manner. Section 141 of the Code of Civil Procedure does not in terms apply to proceedings in writ in the High Court Division under Article 102 of the Constitution. But the Court in its discretion can apply the principles as distinguished from the technical provisions of the Code of Civil Procedure to meet the exigencies of the situation in appropriate cases on the ground of justice, equity and good conscience. In what situations the principles of the Code of Civil Procedure will be applied and to what extent may perhaps be left to the wise discretion of the Court itself. In other words, barring what is specifically provided for in the Rules themselves, the Court is the master of its own procedure and it exercise both its procedural and substantive discretions only on the ground of justice, equity and good conscience.
16. Judged from this point of view we do not think that the High Court Division committed any illegality in entertaining the petition of respondent No.1 filed under Order IX rule 13 CPC. The High Court Division could have entertained the said petition even if Order IX rule 13 or Section 151 of the Code of Civil Procedure was not invoked. As the master of its own procedure, barring the Rules framed, the High Court Division in the writ jurisdiction in appropriate cases can consider the case of non‑appearance of a party at the time of hearing of the writ petition and restore the writ petition. It must be said however that being not procedurally bound by the technical provisions of the Code of Civil Procedure the High Court Division will take care to see that the writ jurisdiction is not converted into a Court of original civil jurisdiction by a lavish entertainment of petitions of the nature of Order IX rule 13 CPC so as to destroy the summary nature of its jurisdiction. The discretion will be exercised rarely and sparingly and only in exceptional cases.
17. It is quite clear that in the present appeal the learned Judges of the High Court Division were not satisfied with the explanation given by respondent No. 1 for the non‑appearance of its learned Advocate at the time of hearing. It is not correct to say that no reasons have been given for its dissatisfaction. The writ petition was pending for long 5 years. No affidavit- in- opposition was filed by any of the respondents. The matter was heard for 3 days. No appearance was made by any of the respondents. The explanation per se was not happy and satisfactory. No exception can be taken with these findings of the High Court Division.
18. Yet the writ petition was restored not on the ground of sufficient cause for non‑appearance but in the interest of justice and we would say that even here the High Court Division is neither bound by the technical provisions of Order IX rule 13 CPC or by the more generous power conferred by section 151 C.P.C. The overriding consideration of justice, equity and good conscience seems to have prevailed in this case as it should in all cases of this kind and since the learned Judges felt that the Rule was of such contentious nature involving public interest that its disposal ex parte will work injustice not only Lo the respondents but also to the public at large we would be loath to interfere with this exercise of discretion unless it is made out that the discretion has been exercised Without regard to any consideration of justice, equity and good conscience, which has not been made out either.
19. Before we part we would like to observe that the respondents, especially respondent No. 1, are guilty of extreme laches, indolence and carelessness in not filing any affidavit- in-opposition for long 5 years when the Rule Nisi was pending and in not contesting the Rule when it was heard. Respondent No. 1 Rajdhani Unnayan Kartripakha is a public institution run with public funds and it owes an explanation to the public as to why it should allow a contentious litigation of this kind involving public money and public interest to go by default. In the interest of an accountable public administration respondent No. 1 is directed to conduct an enquiry into the matter and bring the guilty persons to book.
20. The High Court Division allowed a cost of Taka 3,000.00 to the appellants to be paid within 30 days. In view of the fact that the learned Advocate for respondent No. 1 could not furnish a satisfactory explanation for his non‑appearance in Court on the dates of hearing of the writ petition we are of the view that the cost should be borne by the learned Advocate himself. Mr Syed Ishtiaq Ahmed appearing for respondent No.1 has given an undertaking that the said cost shall be borne by the said learned Advocate himself from his own fund. Accordingly it is so directed.
With this modification in the judgment and order of the High Court Division the appeal is dismissed.
Latifur Rahman J:
Agreeing with the judgment of my learned brother Mustafa Kamal J. I like to write a few sentences.
23. The question involved in this appeal is, whether a writ petition heard and disposed of on merit in the absence of the respondent can be restored for rehearing.
24. It is to be stated here that normally a writ petition is governed by the Rules as framed by the Appellate side rules of the High Court Division. Rule 11 reads as follows-
"All questions arising for determination of such petitions shall be decided ordinarily upon affidavits but the Court may direct that such questions as it may consider necessary be decided on such other evidence and in such manner as it may deem fit and in that case it may follow such procedure and make such orders as may appear to it to be just".
25. Apart from this, there is no other existing procedure for disposal of a writ petition. In this Rule, however, it has been said that the court may pass such order as may appear to it to be just.
26. From the Appellate side rules it appears that writ petition in the nature of Habeas Corpus is governed under section 491 of the Code of Criminal Procedure in Chapter 11, as criminal business. Hence the writ petitions of other nature such as mandamus, certiorari and quo warranto may be considered as Civil Proceeding.
27. It is fundamental that the court exists for doing justice and for doing ends of justice such power must exist in every court, be it a civil Court ' a criminal court or a writ Court. Civil cases and criminal cases are governed by the Codes of Civil Procedure and Criminal Procedure. But in writ case there is no such procedure other than the existing rules as mentioned above. Power to do justice is the basic pre‑requisite of a court and if a court feels that injustice has been done in a case it can adopt such procedure as if thinks fit. In the Code of Civil Procedure there is a provision under Order 9 rule 13 to set aside an ex parte decree in a civil case. The writ court being a civil Court it does not specifically possess that power. There being no express rules in this regard, it must be held that the Writ Court must possess this power for doing justice in a case and whether the court will exercise such power is a matter of judicial discretion for that court.