Nazumer Nessa & ors. Vs. Musammat Hazera Khatun & ors., 2018(1) LNJ 190

Case No: Civil Revision No. 3451 of 2001

Judge: Mahmudul Hoque, J.

Court: High Court Division,

Advocate: Mr. Md. Omar Faruk, Advocate, Mr. Md. Saifur Rahman, Advocate ,

Citation: 2018(1) LNJ 190

Case Year: 2016

Appellant: Nazumer Nessa being dead her heirs Md. Khurshed Alam and others

Respondent: Musammat Hazera Khatun and others

Subject: Code of Civil Procedure

Delivery Date: 2018-06-02

given to paragraph No. 7 is also evasive and misleading in that the payment made by PBL (with loan taken from BMTF) is not investment of Respondents No. 3-6, but by PBL which a separate legal entity.

25.        In view of the situation of this case and of the claim and counter claim made by and between the parties and their willingness to refer their rival monetary claims to arbitration tribunal, with reference to the arbitration clause in the MOU dated 19.10.2013 (Annexure-B), the parties may (if the arbitration agreement exists) appoint arbitrator in accordance with the provisions of Arbitration Act, 2001, to decide about their monetary claim and counter claim, if any, not to decide the title, nor the question of legality of transfer of those shares, which are matters falling within the statutory jurisdiction of this Court to decide and, has therefore, been decided by this judgment and order. In this respect I shall refer to the judgment passed by the Supreme Court of India, passed in Special Leave Petition (Civil) 3695 of 1999, between Haryana Telecom Limited -Vs- Sterlite (India) Limited, wherein the Supreme Court of India has held that, “it is not within the competence of the arbitral tribunal to adjudicate and grant any statutory relief”.

26.        In view of deliberation recorded herein above, I find merit in this petition.

O R D E R:

In the result, the petition is allowed.

It is, therefore, held and declared that the title to the aforesaid 84,99,999 number of shares belongs to the petitioner and 1(one) share to Ms. Farhana Akhter (DGM, BMTF, at the relevant time) as nominee of the BMTF.

The respondent No. 2 company is directed to rectify the share register entering the name of the petitioner and another shareholder in respect of 85,00,000 (eighty five lac) number of shares, respectively, and by deleting the name of the Respondent Nos. 3-6, from the said Register, within 30 days from the date of drawing up of this judgment and order.

         Cost will be borne by the parties.

Ed.

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Mahmudul Hoque, J.

 

Judgment on

29.05.2016

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Nazumer Nessa being dead her heirs Md. Khurshed Alam and others

. . . Defendant-Petitioners

-Versus-

Musammat Hazera Khatun and others

. . . Plaintiff-Opposite Parties

Code of Civil Procedure (V of 1908)

Order XX, Rule 4(2)

The trial court did not observe the minimum legal requirement as provided in Order 20 Rule 4(2) of the Code of Civil Procedure which provides that the judgment shall contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision. The trial court in passing the Ex parte decree only observed that the P.W.1 has been examined, the evidence recorded by the court and the Exhibits have been perused and found that the plaintiff has been able to prove his case and on that finding the suit was decreed ex parte, as such, the impugned judgment and decree of the trial court has not fulfilled the requirement of law. The trial court utterly failed to give reasons for decision in decreeing the suit ex parte. In absence of observance of minimum legal requirement of law the judgment passed ex parte by trial court is bad in law.       . . .(13 to 15)

Words and phrases

Ex parte judgment and Ex parte decree

Code of Civil Procedure does not define either an ex parte judgment or an ex parte decree. It refers only to a judgment and a decree. In the event a judgment is known to be an ex parte judgment and the decree drawn on the basis of that judgment is known as an ex parte decree. Hence, even for an ex parte judgment and the decree, the basic ingredients of judgment must be available to the extent to indicate that the court has applied its mind to the pleading, relief claimed there under, the evidence and conclusion arrived at by the court on the above.  . . .(16)

Code of Civil Procedure (V of 1908)

Order IX, Rule 13A

And

Order XLI, Rule 19A

By enacting the Rule 13A of Order 9 and Rule 19A of Order 41 parliament left it open to the defendant and the appellant to apply under Rule 13A of Order 9 for setting aside an ex parte decree by depositing an amount of cost not exceeding Tk. 3000/- or for re-admission of appeal under Rule 19A of Order 41 of the Code. The legislative attempt incorporated in the Code to discourage dismissal of the suit for default and passing an ex parte decree keeping in mind that litigation between the parties should be ended with contested hearing. Therefore, the court is to consider an application for setting aside an ex parte decree or an appeal thereof liberally.      ...(18)

Bangaldesh Vs. Israil Ali, 1981 BLD (AD) 371; Shamsuddin Ahmed and others Vs. Bangaldesh, 45 DLR 675 and K.D.H Laboratories Ltd. Vs. Pubali Bank and others, 40 DLR 1 ref.

Mr. Md. Omar Faruk, Advocate

.... For the Petitioners

Mr. Md. Saifur Rahman, Advocate   

....For the Opposite Party Nos.1-3

JUDGMENT

Mahmudul Hoque, J: This Rule was issued calling upon the opposite party Nos. 1-3 to show cause as to why the impugned judgment and decree dated 25.03.2001 passed by the Subordinate Judge (now Joint District Judge), 2nd Court, Sadar, Chittagong in Other Appeal No. 245 of 1998 affirming those dated 24.8.1998 and 01.09.1998 respectively passed by the Mirsarai Assistant Judge, Sadar, Chittagong in Other Suit No. 13 of 1995 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

2.            Shorn of unnecessary details, the fact of the case lies in a very short compass. The opposite party Nos. 1-3 as plaintiff instituted Other Suit No. 13 of 1995 in the Court of Mirsarai, Assistant Judge, Chittagong for declaration of title that the impugned judgment and decree dated 26.04.1992 passed in Other Suit No. 21 of 1990 is illegal, inoperative, void and the same is not binding upon the plaintiffs alongwith a further declaration that the deed of gift dated 28.05.1986 is false, fraudulent and collusive. The predecessor of the present-petitioner Nazumer Nessa as defendant no.1 was contesting the suit by filing written statement on 17.05.1998. The suit as usual was fixed for peremptory hearing and on that date both the plaintiffs and the defendants were absent when the suit was taken up for hearing. Resultantly, the suit was dismissed for default. Thereafter, the plaintiff filed a Miscellaneous Case No. 16 of 1998 under Order 9 Rule 4 of the Code of Civil Procedure for restoration of the suit. 

3.            The trial court heard the miscellaneous case and restored the suit in its original position and number on 15.06.1998. After restoration, the trial court fixed the date on 13.07.1998 for peremptory hearing. The petitioner-defendant was not aware of the fact of restoration of the suit and the date fixed by the court for hearing. As a result of which, the petitioner could not appear before the court on the date of hearing on 13.7.1998. Consequently, the suit was decreed ex parte on 24.08.1998 in absence of the petitioner-defendant.

4.            Being aggrieved by the ex parte judgment and decree of the trial court the petitioner preferred Other Appeal No. 245 of 1998 before the District Judge, Chittagong. Eventually, the appeal was heard by the Subordinate Judge, 2nd Court, Chittagong on transfer. The lower appellate court upon hearing the appeal disallowed the same by the impugned judgment and decree dated 25.03.2001. At this stage, the petitioner-defendant no.1 moved this Court by filing this application under Section 115(1) of the Code of Civil Procedure and obtained the present Rule and order of status-quo.

5.            During pendency of the Rule, the petitioner died and her legal heirs have been substituted in her place.  

6.            Mr. Md. Omar Faruk, the learned Advocate appearing for the petitioner submits that the trial court while passing the decree in favour of the plaintiff ex parte did not observe the minimum legal requirement of law by discussing the evidences adduced on behalf of the plaintiff both oral and documentary as to whether such evidences at all entitle the plaintiffs to get a decree as prayed for. He further submits that the cardinal principle of law is that the plaintiff is to prove his own case. But in the present case the trial court in decreeing the suit ex parte utterly failed to observe that the evidences produced before the court by the plaintiffs are sufficient for passing the decree in favour of the plaintiff and as such, the trial court has committed an error of law resulting in an error in the decision occasioning failure of justice. 

7.            He further submits that Order 20 Rule 4(2) of the Code of Civil Procedure provides that the judgment shall contain a concise statement of the case, point for determination of the decision thereon and the reason for such decision but in the present case the trial court as well as the appellate court has committed an error of law totally ignoring such provision as contained in Order 20 of the Code of Civil Procedure. It is also argued that though in a miscellaneous case filed under Order 9 Rule 4 of the Code of Civil Procedure service of notice upon the defendants are not required by law but in the event of restoration of the suit and fixing subsequent date for hearing the defendants are required to be informed about hearing of the suit. In the instant case no notice or information was given to the defendants about restoration and subsequent date of hearing and as such,  disposal of the suit ex parte without any intimation to the defendants is illegal and contrary to the provision of law. He further submits that both the courts below erroneously found that the learned Advocate for the petitioner was informed about the restoration of the suit and the date of hearing but it does not mean that this defendant was personally informed about restoration of the suit and as such, the judgment and decree of both the courts below are liable to be set aside.

8.            Mr. Md. Saifur Rahman, the learned Advocate appearing for the plaintiff-opposite party nos. 1-3 submits that the suit was restored on 24.06.1998 and fixed for hearing on 13.07.1998 in presence of the learned Advocates of both the parties. On 13.07.1998 the plaintiff filed an application under Order 6 Rule 17 of the Code of Civil Procedure seeking amendment of the plaint without service of copy of the same upon the defendant as the defendant no.1 was absent on that date. Subsequently, 03.08.1998 was fixed for further hearing. On that date both the parties filed hazira. The plaintiff filed an application praying for disposal of the suit ex parte upon recording evidence of P.Ws. The trial court fixed on 24.8.1998 for ex parte hearing and decreed the suit ex parte. Therefore, the plea so far taken by the petitioner about ignorance of restoration of the suit and of fixing subsequent date for hearing is not at all true and absolutely contrary to the facts and circumstances of the case and the order sheets. It is also argued that to get an ex parte decree set aside the defendants are to fulfill two conditions i.e. no notice was served upon them or the defendant was prevented by sufficient cause for not appearing on the date when the case was taken up for hearing by the court. In the instant case, the petitioner utterly failed to satisfy the aforesaid requirements before the court below and as such, the appellate court rightly disallowed the appeal refusing to set aside the judgment and decree passed by the trial court ex parte.

9.            Heard the learned Advocates for the parties, gone through the revisional application, impugned judgment and decree of the courts below and the order sheets of the trial court.

10.        From a perusal of the order sheets of the trial court, it appears that the suit was restored on 24.06.1998 and it was fixed on 13.07.1998 for further hearing with an intimation to the learned Advocates for the parties who had seen the order of the court. On 13.07.1998 the plaintiff filed hazira, the defendant was absent and the plaintiff was also filed an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint without service of copy upon the defendant as it appears from the order sheets.

11.        On 03.08.1998 the suit was fixed for further hearing. Both the parties filed hazira but the hearing was adjournment due to engagement of the court otherwise and fixed on 19.8.1998. The plaintiff on the date fixed filed hazira and an application praying for disposal of the suit ex parte, by recording evidence of the plaintiff. The defendant was absent. The trial court fixed 24.8.1998 for ex parte hearing and on that date the suit was decreed ex parte. Subsequently, the defendant filed an application on 27.8.1998 praying for allowing them to cross-examine the plaintiff but the said application was rejected. Thereafter, the petitioner preferred an appeal against the ex parte judgment and decree before the District Judge, Chittagong, which was also dismissed on contest on the ground that the appellant could not satisfy the court that she was prevented by sufficient cause when the suit was taken up for hearing. Moreover, the appellate court clearly found that the defendant was duly informed about restoration of the suit and fixing of subsequent date for further hearing, as it appears from the order dated 3.8.1998 on which date the defendant-appellant filed hazira before the trial court and as such, the plea of not aware of restoration of the suit and fixation of the date of hearing is absolutely contrary to the actual facts and circumstances of the case.  The order sheets show that the petitioner was fully aware of the proceeding in Other Suit No. 13 of 1995.

12.        Now the question before this Court has arisen as to whether the trial court  in passing the judgment ex parte has observed and satisfied the minimum legal requirement as provided by law. To appreciate the argument advanced by the learned counsel for the petitioner the impugned ex parte decree passed by the trial court by its Order No.75 dated 25.8.1998 may be looked into which runs thus:-

"AcÉ j¡jm¡¢V HLalg¡ öe¡e£l SeÉ ¢ce d¡kÑÉ B­Rz h¡c£fr q¡¢Sl¡ c¡¢Mm L¢lu¡­R z e¢b HLalg¡ öe¡e£l SeÉ EfÙÛ¡fe Ll¡ qCm z ¢f, X¢hÔE-1 q¡S£ He¡j¤m q­Ll f¤ex Sh¡eh¢¾c nfbe¡j¡ f¡W f§hÑL NËqe Ll¡ qCmz Aœ ®j¡LŸj¡l BlS£, ¢f, X¢hÔE-1 Hl Sh¡eh¢¾c, c¡¢Mm£ c¢mmfœ J L¡NSfœ fÐcnÑe£ 1-3(M) Hhw Aœ ®j¡LŸj¡l e¢b fkÑÉ¡­m¡Qe¡u h¡c£Ne a¡cl Aœ ®j¡LŸj¡ HLalg¡p§­œ fÐj¡e Ll­a prj q­Rez

fÐcš ®L¡VÑ ¢g p¢WL,

AaHh,

ýL¥j q­m¡ ®k,

Aœ ®j¡LŸj¡ ¢hh¡c£N­el ¢hl¦­Ü HLalg¡ p§­œ ¢he¡ MlQ¡u ¢Xœ²£ q­m¡ z Haà¡l¡ 1ew ¢hh¡c£l üš ®O¡oe¡ L­l fÐQ¡¢la Aœ Bc¡m­al Afl 21/90ew ®j¡LŸj¡l 26/4/92Cw a¡¢l­Ml l¡u J 2/5/92Cw a¡¢l­Ml ¢Xœ²£ h¡¢am J AL¡kÑÉLl j­jÑ Hhw aà¡l¡ h¡c£Ne h¡dÉ ee j­jÑ ®O¡oe¡ Ll¡ q­m¡ Hhw 1ew h¡c£¢e­L p¡r£ ®c¢M­u J p¤ma¡e Bq­jc­L c¡a¡ ®c¢M­u pª¢Sa 18/5/86Cw a¡¢l­Ml A­l¢SøÌ£L«a c¡efœ c¢mm S¡m, i¨u¡ J AL¡kÑLl j­jÑ ®O¡oe¡ Ll¡ q­m¡z"

13.        From a perusal of the order quoted above passed by the trial court decreeing the suit ex parte, it appears that the trial court did not observe the minimum legal requirement as provided in Order 20 Rule 4 (2) of the Code of Civil Procedure which provides that the judgment shall contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision. The trial court in passing the ex parte decree only observed that the P.W.1 has been examined, the evidence recorded by the court and the Exhibits have been perused and found that the plaintiff has been able to prove his case and on that finding the suit was decreed ex parte, as such, the impugned judgment and decree of the trial court has not fulfilled the requirement of law.

14.        The trial court utterly failed to give reasons for decision in decreeing the suit ex parte. In the case of Bangladesh Vs. Israil Ali reported in 1981 BLD (AD) 371. It has been held that;

" ex parte disposal of suit in the manner set out above is not warranted under the provisions of  Code of Civil Procedure. It is expected that the courts below should observe the minimum legal requirement in disposing of a suit ex parte."

15.        In the absence of observance of minimum legal requirement of law the judgment passed ex parte by trial court is bad in law. In the case of Shamsuddin Ahmed and others Vs. Bangladesh, reported in 45 DLR 675 it has also been held that;

"a judgment even when it is an ex parte should show application of court’s judicial mind as to whether the plaintiff’s witness and the papers produced proved the plaintiff’s case."

16.        Code of Civil Procedure does not define either an ex parte judgment or an ex parte decree. It refers only to a judgment and a decree. In the event a judgment is known to be an ex parte judgment and the decree drawn on the basis of that judgment is known as an ex parte decree. Hence, even for an ex parte judgment and the decree, the basic ingredients of judgment must be available to the extent to indicate that the court has applied its mind to the pleading, relief claimed thereunder, the evidence and conclusion arrived at by the court on the above.

17.        From the above discussions it is manifestly clear that even a judgment rendered ex parte and a decree is drawn on the basis of that judgment it is appealable. In case that judgment and decree become final without there being any appeal, the decree is executable. In that sense, there is no difference between a judgment and decree and an ex parte judgment and decree. In view of the above, in the event the defendant is set ex parte, the Court should be more careful in such case and it should consider the pleadings and evidence and arrive at a finding as to whether the plaintiff has made out a case for a decree prayed for. In this context, it may also be mentioned that though a detailed judgment is required in a contested matter, an ex parte judgment should show the application of the minimum requirement of consideration of the pleadings, issues, evidence and the relief sought for rendering such judgment.     

18.        Apart from this, considering the situation like the present one, the Code of Civil Procedure was amended in the year 2006 with the avowed purpose of abridging and simplifying the procedural law and to avoid delay, expedite disposal, save the public time, private convenience and money. By enacting the Rule 13A of order 9 and Rule 19A of order 41 parliament left it open to the defendant and the appellant to apply under Rule 13A of order 9 for setting aside an ex parte decree by depositing an amount of cost not exceeding Tk. 3000/- or for re-admission of appeal under Rule 19A of order 41 of the code. The legislative attempt incorporated in the code to discourage dismissal of the suit for default and passing of an ex parte decree keeping in mind that the litigation between the parties should be ended with contested hearing. Therefore, the court is to consider an application for setting aside an ex parte decree or an appeal thereof liberally. In the case of K.D.H Laboratories Ltd. Vs. Pubali Bank and others reported in 40 DLR 1 it has been observed that,

"Superior Courts do not permit an ex parte hearing as a general rule."

19.        This being the position, a suit seeking a declaration of a judgment passed in earlier suit a nullity and a deed of gift as illegal and void, I think that the matter in dispute ought to have disposed of on contest by giving an opportunity to the defendants to defend themselves. In the circumstances, both the judgments and decree passed by the courts below are liable to be set aside.    

20.        In the result, the Rule is made absolute, however, there will be no order as to costs. The impugned judgment and decree dated 25.03.2001 passed by the Subordinate Judge (now Joint District Judge), 2nd Court, Sadar, Chittagong in other Appeal No. 245 of 1998 and judgment and decree dated 24.8.1998 passed in  Other Suit No. 13 of 1995 by the Mirsarai Assistant Judge, Chittagong are hereby set aside.

21.        The trial court is directed to proceed with the hearing of the suit and disposed of the same within 6(six) months from the date of receipt of this judgment positively. 

22.        The order of status-quo granted at the time of issuance of the Rule stands vacated.

23.        Communicate a copy of this judgment to the Court concerned.

24.        Send down the lower court records at once.

         Ed.  



Civil Revision No. 3451 of 2001