Mrs. Mohsina Rahman Vs. Abdul Majid, V ADC (2008) 786

Case No: Civil Petition for Leave to Appeal No. 1465 of 2005

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: A.S.M. Khalequzzaman,Mr. M. A. Samad,Mr. Md. Khalilur Rahman,,

Citation: V ADC (2008) 786

Case Year: 2008

Appellant: Mrs. Mohsina Rahman

Respondent: Abdul Majid

Subject: Arbitration/Mediation,

Delivery Date: 2006-06-19


Supreme Court of Bangladesh
Appellate Division
(Civil)


Present:
M. M. Ruhul Amin, CJ.
Md. Tafazzul Islam, J.
Md. Abdul Matin, J.
 
Mrs. Mohsina Rahman
.............Petitioner
Vs.
Abdul Majid
.........Respondent
 
Judgment
June 19, 2008.
 
As it appears the High Court Division allowed the appeal on the grounds that award was made considering the materials on record and further the defendant filed an adjournment petition before the Arbitrator on the ground that she would file a petition before the Court for changing the Sole Arbitrator allowed her time up to 23.5.1998 and thereafter on 23.5.1998 the defendant filed another adjournment petition which was rejected and then the defendant did not contest the arbitration proceeding any further and so there is no illegality in making the award the Rule of the Court. …….. (5)
 
Lawyers Involved:
Khalilur Rahman, Advocate, instructed by Syed Mahbubur Rahman, Advocate-on-Record-For the Petitioner.
M. A. Samad, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record-For Respondent Nos. 1, 3.
A.S.M. Khalequzzaman, Advocate-on-Record-Respondent No. 2.
 
Civil Petition for Leave to Appeal No. 1465 of 2005.
(From the judgment and order dated 21.6.2005 passed by the High Court Division in First Appeal No. 87 of 2002).
 
JUDGMENT
Md. Tafazzul Islam J.
 
            This petition for leave to appeal is directed against the judg­ment and order dated 21.6.2005 of the High Court Division passed in First Appeal No.87 of 2002 allowing the appeal upon setting aside the judgment and decree dated 11.11.2001 of the learned Joint District Judge, 5th Court, Dhaka passed in Title Suit No. 164 of 1998 making the award dated 30.5.1998 of the learned Arbitrator Mr. Justice (Retired) Abdul Bari Sarker, Rule of the Court.
 
2.         Facts, in brief, are that the respondent, as plaintiff, filed Title Suit No. 5 of 1995 in the Court of Subordinate Judge, 3rd Court, Dhaka seeking declaration of his leasehold right on Shop Nos. 1, 5, 9, 11 and 12 situat­ed in the ground floor of Meherun Nessa A.C. Market, at 164, Sonargaon Road, Dhaka stating that he, in the year 1987, took lease of the above 5(five) shops from the defendant petitioner on payment of salami of Tk. 50,000/- for each shop, total being of Tk. 2,50,000/-, with the right of transfer of possession of those on payment of transfer fee @ Tk. 10,000/- for each shop to the defendant and that he paid rent regularly but all on a sudden, without determining the lease by issuing notice under section 106 of the Transfer of Property Act, the defendant started demolishing the market building from its 5th floor. The defendant then filed an application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of plaint of the above suit on the ground that in terms of the arbitration clause contained in the lease agreement the suit was not main­tainable. The learned Joint District Judge, after hearing, rejected the plaint whereupon the plaintiff respondent preferred First Appeal No. 300 of 1995 before the High Court Division and then filed an application therein praying for an order of injunction upon which Civil Rule (F) No. 350 of 1995 was issued and the High Court Division, after hearing, discharged the above Rule and then the plaintiff preferred Civil Petition No.6 of 1996 which was disposed by the Appellate Division with the observation that as the plaintiff, the tenant, is willing to vacate the premises if he is given a total sum of Tk. 20,45,000/- by the defendant, the dis­pute between the parties remains only in respect of quantum of money to be paid to the plaintiff by the defendant, the landlord, and as the defendant is willing to return only the amount of salami received by her against the said shops and is also agreeable to pay further claim of the plaintiff along with compensation to be decided by way of arbitration, injunction as prayed for is not maintainable.
 
3.         The plaintiff then requested the defendant to pay the amount so undertaken but the defendant having refused the plaintiff filed Arbitration Case No.6 of 1996 in the 5th Court of Joint District Judge Dhaka under section 8 of the Arbitration Act 1940 for appointment of a Sole Arbitrator and the defendant appeared in the above suit and took several adjournments and ultimately the learned Joint District Judge, after hear­ing, by judgment and order dated 28.4.1997 appointed Mr. Justice (Retired) Abdul Bari Sarker as the Sole Arbitrator. The plaintiff then filed a Statement of Claim on 10.7.1997 but the defendant took several adjournments to submit his Rejoinder and then again prayed for further adjournment which was rejected. Thereafter the defen­dant again prayed adjournment on the ground that she would file a petition before the Court for changing the Sole Arbitrator and on the above submission the learned Sole Arbitrator allowed time, at first up to 23.5.1998 and then upto 30.5.1998 in order to enable the defendant to submit order or stay from the Court but the defendant hav­ing failed to submit such order filed another application on 30.5.98 praying for further adjournment which being rejected she did not contest the arbitration proceeding any further. Then the Sole Arbitrator, on hearing the plaintiff, by order dated 30.5.2001, passed an award for Tk. 24, 00,000/- in favour of the plaintiff as against their claim of Tk. 2,34, 30,975/- and the defendant hav­ing failed to pay the same the plaintiff filed Title Suit No. 164 of 1998 for making the above award the Rule of the Court and the learned Joint District Judge, after hearing, dismissed the above suit. The plaintiff then filed appeal and the High Court Division, after hearing, allowing the appeal and made the award the Rule of the Court.
 
4.         The learned counsel for the defendant petitioner submitted that the learned Joint District Judge found that the trial Court to the effect that defendant petitioner filed Miscellaneous Case No.34 of 1998 under section 5 of the Arbitration Act, 1940 for changing the Arbitrator wherein the learned Sole Arbitrator was also made a party as proforma defendant No. 4 and the defendant by filing separate petition also prayed for an ad-interim order of stay of all further pro­ceedings of the arbitration proceeding and the learned Joint District Judge, being satis­fied, issued show cause notice upon the plaintiff fixing 24.5.1998 for hearing of the stay matter and the plaintiff after receiving the same appeared on 24.5.1998 and prayed for time to file written objection and then the next date was fixed on 18.6.1998 for fil­ing written objection and hearing but the learned Sole Arbitrator without waiting upto the next date i.e. 18.6.1998 passed the award on 30.5.1998 and then signed the same and thereby committed misconduct in passing the above award and the plaintiff also failed to produce necessary evidence in support of the award dismissed the suit and the High Court Division, without adverting the find­ings, erroneously allowed the appeal.
 
5.         As it appears the High Court Division allowed the appeal on the grounds that award was made considering the materials on record and further the defendant filed an adjournment petition before the Arbitrator on the ground that she would file a petition before the Court for changing the Sole Arbitrator and the Sole Arbitrator allowed her time up to 23.5.1998 and thereafter on 23.5.1998 the defendant filed   another adjournment petition which was rejected and then the defendant did not contest the arbitration proceeding any further and so there is no illegality in making the award the Rule of the Court.
 
6.         We are of the view that the High Court Division on proper consideration of the materials on record arrived at a correct deci­sion and there is no illegality or infirmity in the above decision so as to call for any inter­ference.
 
The petition is dismissed.
 
Ed.