M/s. Ayat Ali Bhuiyan & Company Ltd. Vs. Janata Bank, 40 DLR (1988) 56

Case No: Civil Revision No. 96 of 1987

Judge: AM Mahmudur Rahman ,

Court: High Court Division,,

Advocate: Mr. Habibur Rahman,,

Citation: 40 DLR (1988) 56

Case Year: 1988

Appellant: M/s. Ayat Ali Bhuiyan & Company Ltd.

Respondent: Janata Bank

Subject: Civil Law,

Delivery Date: 1987-07-30

Supreme Court
High Court Division
(Civil)
 
Present:
ARM Amirul Islam Chowdhury, J.
AM Mahmudur Rahman, J.
 
M/s. Ayat Ali Bhuiyan & Company Ltd.
...............Petitioner
Vs.
Janata Bank
………..Opposite party
 
Judgment
July 30, 1987
 
Code of Civil Procedure (V of 1908)
Sections 10 & 151
Provision of section 10 of the Code is mandatory- But this provision will not take away the right conferred upon this court under section 151 of the Code in the facts and circumstances of a given case to secure the ends of justice.
In the matter of an application for stay. And in the matter of an application under Section 115 of the Code of Civil Procedure, 1908 for setting aside an order dated 3.12.86 passed by the Subordinate Judge and Commercial Court No.1 Dhaka in Money Suit No. 287/86. And in the matter of stay of the operation of the order dated 3.12.86 in Money Suit No. 287/86 of the Court of the Sub-Judge and Commercial Court No.1 be stayed for a period of three months from date as ordered by the Court.
 
Cases Referred to:
P.P.Gupta vs. East Asiatic Co. 1960 All 184, Mst. Arifa Begum vs. Khulki Mo­hammad Naqbi, 21 DLR (WP) 209 and Surya Begum vs. Alimullah Mallick, 24 DLR 133.
 
Lawyers Involved:
Habibur Rahman Khan Advocate, with S.A.Haider Chowdhury, Advocate - For the petitioner.
Kazi Golam Mahbub, Advocate — For opposite party.
 
Civil Revision No. 96 of 1987.
 
JUDGMENT
 
AM Mahmudur Rahman J.
 
1. This Rule at the instance of the petitioner is against an order dated 3.12.86 of the Subordinate Judge and Commercial Court No.1, Dhaka passed in Money Suit No.287 of 1986 slaying proceedings of the said Suit till the disposal of Money Suit No. 108 of 1986.
 
2. The short facts giving rise to this Rule are as follows:-
The petitioner instituted on 12.7.86 Money Suit No.287 of 1986 against the opposite party Bank in the aforesaid Commercial Court No.1 Dhaka for recovery of a sum of Tk. 5,15,169.00 which was lying in deposit in the petitioner's C.D.A/C No.765 as credit balance in the Mitford Branch of the said Bank. In the said suit, the petitioner further prayed for a decree for damages for Tk. 8,70,000/- for illegally withholding payment of the amount lying in the said account of the petitioner with the opposite party Bank. Prior to the institution of the aforesaid suit by the petitioner, the opposite party Bank instituted on 9.3.86 Money Suit No.108 of 1986 in the aforesaid Commercial Court No.1 for realization of Tk.2,45,04,500/- against the petitioner and others. Thereafter while both the suits were pending disposal by the said commercial Court No.1 the opposite party Bank filed an application under section 10 of the Code of Civil procedure in the said Court for staying the further proceedings of the Money Suit No. 287 of 1986 filed by the petitioner. The learned Court after hearing both the petitioner as well as the opposite party Bank allowed the application and passed the impugned order on 3.12.86 staying all proceedings of the Money Suit No.287 of 1986 till the disposal of Money Suit No. 108 of 1986.
 
3. The learned Advocate appearing in support of this Rule submitted first, that the matter in issue in Title Suit No.287 of 1986 is not in the plaint of Title Suit No.108 of 1986 in issue and as such the impugned order is not calked for in as much as the provisions of section 10 of the Code of Civil procedure is not attracted in this case and the learned Commercial Court No.1 committed an illegality in passing the impugned order which has caused failure of justice. The learned Advocate for the petitioner placed before us section 10 and argued that in the facts and circumstances of the present case the provision of section 10 has got no manner of application. He further argued that unless the impugned order is not set aside and the Money Suit No.287 of 1986 is not heard the petitioner will suffer irreparable loss. He further submitted that the impugned order should be set aside by this Court in the facts and circumstances of the case.
 
4. The learned Advocate for the opposite party, on the other hand, strenuously argued that in the instant case the provision of section 10 of the Code of Civil Procedure is attracted and the provision of section 10 of the Code being mandatory this Court will not exercise its jurisdiction under section 115(1) of the Code of Civil Procedure as no illegality is done by the impugned order in the present case. He submitted that this Court would interfere under section 115(1) only when there is an error committed by the Court in passing the impugned order leading to failure of justice. He also submitted that from the allegations made in both the plaints it would appear that the suits are for recovery of money and as such provision of section 10 \was directly attracted to the instant case.
 
5. We have given our anxious consideration to the respective arguments advanced by the learned Advocates. There is no denial that provision of section 10 of the Code is mandatory. But then the question would be whether this provision will take away the right conferred upon this Court under section 151 of the Code. In our opinion it does not. The Court exercising jurisdiction under section 151 has got ample authority to pass an appropriate order in the facts and circumstances of a given case to secure ends of justice. The purpose of section 10 of the Code is to prevent Courts of concurrent jurisdiction to avoid possibility of a conflict of decisions between two Courts deciding the same dispute between the same parties and where the disputes are pending in the same Court to avoid multiplicity of litigation and involvement of unnecessary financial hazard by the litigants. In both the suits before us so far as the allegations made in the plaints are concerned it necessitates an investigation so far as the account of the petitioner is concerned inasmuch as in both the suits so far as the parties are concerned investigation into C.D.,A/C No. 765 maintained by the petitioner, with oppo­site party Bank would be necessary. In this view of the matter a simultaneous hearing on consolidation of the suits which are pending in the Court below will meet the ends of justice as we are of opinion that such course is not opposed to provision of section 10 of the Code. In that view of the matter we were inclined to hold that those suits are to be heard simultaneously by the Commercial Court No.1 Dhaka as expeditiously as possible for the ends of justice. It is pertinent in this connection to refer the cases of P.P.Gupta vs. East Asiatic Co. 1960 All 184, Mst. Arifa Begum vs. Khulki Mo­hammad Naqbi, 21 DLR (WP) 209 and Surya Begum vs. Alimullah Mallick, 24 DLR 133.
 
6. For the reasons stated above, the impugned order is hereby set aside and the learned Commercial Court No.1 Dhaka is directed to hear the suits si­multaneously with expedition in the light of the ob­servation made above. Therefore, we make Rule ab­solute in the above terms without any order as to costs.
 
Ed.