Case No: Civil Petition for Leave to Appeal No. 183 of 2000
Judge: Latifur Rahman ,
Court: Appellate Division ,,
Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mr. SS Halder,,
Citation: 52 DLR (AD) (2000) 138
Case Year: 2000
Appellant: Novartis Foundation for Sustainable Development
Subject: Writ Petition,
Delivery Date: 2000-4-4
Latifur Rahman CJ
BB Roy Choudhury J
M Amin Choudhury J
Kazi Ebadul Hoque J
Novartis Foundation for Sustainable Development
RK Ruma, General Secretary, BIKASH
April 4th, 2000.
The Constitution of Bangladesh, 1972
The writ-petitioner who filed the writ petition can very well make a prayer for non- prosecution and it is upon the writ- petitioner to proceed with the case or not. Order for discharge for non-prosecution ought not to have been made by another Division Bench in view of the fact that an order for inquiry was pending as per the order of another Division Bench……..(5)
Khandaker Mahbubuddin Ahmed, Senior Advocate, instructed by Sharifuddin Chaklader Advocate-on-Record — For the Petitioner
SS Halder Senior Advocate instructed by Md. Aftab Hossain, Advocate-on-Record — For the Respondent No. 1.
Not represented — Respondent Nos. 2-4.
Civil Petition for Leave to Appeal No. 183 of 2000.
(From the Judgment and order dated 31 passed by the High Court Division Dhaka in Wit Petition No. 6059 of 1997).
Latifur Rahman CJ.
This civil petition for leave to appeal by added respondent No. 4 calls in question the order dated 31-1-2000 passed by a Division Bench of the High Court Division in Writ Petition No. 6059 of 1997 discharging the Rule for non prosecution on the prayer of the wit-petitioner.
2. The writ petition was filed on 27-8-97 and on that date a Division Bench of the High Court Division presided over by Mr. Justice Md. Mozammel Haque issued Rule and pending hearing of the Rule, the operation of the impugned order was stayed. In the meanwhile, the present petitioner was added as respondent No. 4 in the writ petition. Thereafter, the matter was mentioned before the Division Bench presided over by Mr. Justice Khandker Mahmud-ul Hasan for vacating the order of stay. It appears from the order-sheet of the writ petition that the Division Bench presided over by Mr. justice Khandker Mahmud-ul Hasan directed Rahman, Rahman and Huq, Chartered Accountant to submit an Audit Report before the Court within 2 months. Thereafter, on 28-4-99 a prayer was made by the writ petitioner for withdrawal of the case for not on that date the Division Bench presided by Mr. KM Hasan’s passed the following order:
“If the Rule is discharged on the prayer of the writ petitioner at this stage it will help the petitioner to avoid the Court’s order to assist Rahman, Rahman and Huq to prepare the audit Report. We do not intend to carry out with the Rule against the will of the writ petitioner but we also want to see that the audit report is duly prepared and placed before this Court by Rahman, Rahman and Huq before discharging the Rule.”
3. At a subsequent point of time on 31-1-2000 on the prayer of the writ-petitioner another Division Bench presided over by Mr. Justice Md. Mozammel Haque discharged the Rule for non prosecution. This order has been challenged before us by added respondent No. 4.
4. Khandker Mahbubuddin Ahmed, learned Advocate appearing for added respondent No. 4 submits that when a Division Bench earlier passed an order for making an enquiry by Rahman. Rahman and Huq and to submit an audit report in Court to enquire into the financial irregularities of BIKASH, a non-government organisation, another Division Bench ought not to have simply discharged the Rule for non-prosecution when the earlier order of the enquiry was pending before the High Court Division for disposal.
5. There is no dispute that the writ-petitioner who filed the writ petition can very well make a prayer for non-prosecution and it is upon the writ- petitioner to proceed with the case or not. But in the present case the order for discharge for non- prosecution ought not to have been made by another Division Bench in view of the fact that an order for inquiry was pending as per the order of another Division Bench. Judicial propriety and norm do not approve of such passing of order by another Division Bench when there was a pending order by another Division Bench. The learned Judges who passed the impugned order ought to have been very careful and mindful in passing such order.
6. Now coming to the facts of the present case. Mr. SS Halder, learned Advocate appearing for the writ petitioner, submits that the case was withdrawn on 31-1-2000, but before that there was full fledged enquiry by the Director General, Non NGO Affairs Bureau, Government of Bangladesh and a report was submitted on 2-6-99 (during the pendency of the writ petition) wherein the Bureau also recommended for withdrawal of the said writ petition. In the said report, the Bureau also found that no financial irregularity was committed. Thus, on the merit of the case the withdrawal of the writ petition for non-prosecution could not be held to be irregular.
7. Be that as it may, the writ petitioner having withdrawn the writ petition for non-prosecution we do not like to interfere with the impugned order.
Consequently, the petition is dismissed with the observations indicated above.