Oriental Bank Ltd. Vs. Sitara Siddiq, 59 DLR (2007) 573

Case No: Civil Revision No. 4105 of 2005

Court: High Court Division,,

Advocate: Sayyed Shah Hussain,,

Citation: 59 DLR (2007) 573

Case Year: 2007

Appellant: Oriental Bank Ltd.

Respondent: Sitara Siddiq

Subject: Artha Rin,

Delivery Date: 2007-08-15

Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
Md. Arayesuddin J
Mashuque Hosain Ahmed J
 
Oriental Bank Ltd.
………………..Defendant-Petitioner
Vs.
Sitara Siddiq
………………..Plaintiff-Opposite-Party
 
Judgment
August 15, 2007.
 
Artha Rin Adalat Ain, 2003
Section 18
As per section 18 of the Artha Rin Adalat Ain, 2003, no case filed in the Artha Rin Adalat can be transferred to any other Court for analogous hearing or any other suit can be brought to this Court for analogous hearing with the suit filed in the Artha Rin Adalat and it is settled law that Artha Rin Adalat is not a full-fledged Civil Court. It has been created by special enactment only for recovery of the defaulted loan. It has got no power to adjudicate any other matters.
 
Cases Referred To-
PP Gupta vs. East Asiatic Co. AIR 1960 (Allahabad), 184; Mahangu Prasad Sah vs. Pravag Sah, iAIR 1972 (Gauhati), 40 and Smt. Naufati vs. Mehma Singh, AIR 1972 (Punjab & Haryana), 421.
 
Lawyers involved:
Sayyid Shahid Hussain with Rani Akhter, Advocates—For the Petitioner.
Rafiqul-ul-Huq with Enayet Hussain Khan, Md Ziaul Haque, Advocates—For the Opposite Party.
 
Civil Revision No. 4105 of 2005.
 
JUDGMENT
 
Md. Arayesuddin J.
 
1.         At the time of issuance of the Rule, though the LC records were called for, but the same has not yet been arrived. During hearing of the Rule, it was felt that the LC records are not necessary to hear and dispose 6f the Rule. So, the Rule be treated as ready and the same be taken up for hearing.
 
2.         Rule was issued calling upon the opposite party to show cause as to why the impugned judg­ment and order, dated 27-8-2005, passed by the Additional District Judge 5th Court Dhaka, in dis­missing Civil Revision No. 518 of 2004 and "confirming the order, dated 24-10-2004, passed by the Joint District Judge, 5th Court, Dhaka in Title Suit No. 209 of 2002, should not be set aside.
 
3.         Fact, in short, for the disposal of the Rule is that opposite party as plaintiff instituted Title Suit No. 209 of 2002 in the Court of the Joint District Judge, 5th Court, Dhaka, for declaration that she has no liabilities on account of Messrs Pan Asia Lines Ltd and a further declaration that she is entitled to get back her documents of properties as, described in the plaint. Further, she prayed for mandatory injunc­tion against the present petitioner bank for giving delivery of the original documents to her. In this suit, the petitioner bank appeared and the suit came at the stage of pre-emptory hearing and deposition of the opposite party as plaintiff of Title Suit No. 209 of 2002 was recorded in part. In the meantime, petitioner bank on 6-3-2004 filed Artha Rin Suit No. 34 of 2004 in the Artha Rin Adalat, 4th Court Dhaka, against Messrs Pan Asia Carrier, SA Panama and some other foreign companies of Panama and Singapore including Messrs Pan Asia Lines Ltd. Thereafter, in Title Suit No. 209 of 2002 this petitioner filed a petition under section 10 read with section 151 of the Code of Civil Procedure to stay all the further proceedings of Title Suit No. 209 of 2002 till disposal of Artha Rin Suit No. 34 of 2004. The trial Court on 24-10-2004 heard the learned Advocates of both the parties and rejected the petition. Thereafter the petitioner preferred Civil Revision No. 518 of 2004 before the District Judge, Dhaka, which was heard by the Additional District Judge, 5th Court Dhaka, who by his judgment and order, dated 27-8-2005, rejected the civil revision against which the present petitioner moved this Court under section 115(4) of the Code of Civil Procedure and obtained the Rule.
 
4.         In this Rule, the main point for decision is whether Title Suit No. 209 of 2002 can be stayed or not or the order of simultaneous hearing can be passed.
 
5.         On behalf of the petitioner, the learned Advocate Mr. Sayyid Shahid Hussain, submitted that the matter in issue in Title Suit No. 209 of 2002 and that of Artha Rin Suit No. 34 of 2004 are the same and if those suits are tried by two different Courts, there is every apprehension for conflicting decisions. So, he submitted that to avoid conflict­ing decision it is desirable that both the suits be tried by the same Court. He submitted that since the Artha Rin Suit cannot be transferred to any other Court, the Court of the Artha Rin Adalat being the Joint District Judge, Title Suit No. 209 of 2002 can be transferred to the Court of the Artha Rin Adalat with a direction to try the suit as Joint District Judge simultaneously with Artha Rin Suit No. 34 of 2004 pending in his Court. He has further submitted that though in section 10 of the Code of Civil Procedure it has been mentioned that the later suit should be stayed, but for the sake of administering justice the former suit can be stayed, if circumstances demand so. He has further submitted that when the trial Court has rejected the petition filed by the petitioner under section 10 of the Code of Civil Procedure, he could have given that relief under section 151 of the Code of Civil Procedure by staying Title Suit No. 209 of 2002 pending in his Court, but he has not done so. As in both the Courts two suits over the same cause of action are pending, there is every likelihood for conflicting decision. Therefore he submitted for simultaneous trial of both the suits. To that effect, he has relied on the case of PP Gupta vs. East Asiatic Co. in Civil Revision No. 218 of 1957 reported in AIR 1960 (Allahabad), 184; the case of Mahangu Prasad Sah and another vs. Pravag Sah and others in Civil Revision No. 364 of 1971 reported in AIR 1972 (Gauhati), 40 and also the case of Smt. Naurati and others vs. Mehma Singh in Civil Revision No. 364 of 1971 reported in AIR 1972 (Punjab & Haryana), 421. In those Civil revisions their Lordships have discussed the provision of section 10 along with section 151 of the Code of Civil Procedure and examined two suits pending in two civil Courts, but in the present case, one suit is pending before the Civil Court and another in the Artha Rin Adalat. So, the learned Advocate sub­mitted that if Title Suit No. 209 of 2002 be with­drawn and placed under the jurisdiction of the Joint District Judge who is working as Artha Rin Adalat, Court No. 4, Dhaka, directing him to try both the suits simultaneously, there would be no chance of conflicting decisions. Referring section 18 of the Artha Rin Adalat Ain the learned Advocate for the petitioner submitted that in that section analogous hearing has been barred and the Artha Rin Suit cannot be transferred to any other Court for hearing with any other suit and also it cannot be stayed. Therefore, the learned Advocate for the petitioner submitted for withdrawing Title Suit No. 209 of 2002 from the Court of the Joint District Judge, 5th Court, Dhaka, and to transfer the same to the Court of the Artha Rin Adalat who is also a Joint District Judge and to try the same simultaneously for avoidance of conflicting decision.
 
6.         On behalf of the opposite party, the learned Senior Advocate Mr. Rafiq-ul-Huq submitted that provision of section 10 of the Code of Civil Proce­dure is distinct and clear. As per provision of section 10 of the aforesaid Code subsequent suit is to be stayed. He submitted that opposite party instituted the suit long before two years in 2002, but the petitioner bank filed Artha Rin Suit No. 34 of 2004 long after two years. Therefore, he submitted that as per the provision of section 10 of the Code of Civil Procedure, Artha Rin suit ought to have been stayed. Since there is bar in section 18 of the Artha Rin Adalat Ain, he submitted that there is no bar to proceed both the suits. To this effect, he submitted that Title suit No. 209 of 2002 is at the peremptory stage and the evidence of opposite party No. 1 has been recorded in part. At this stage, by obtaining the Rule, the petitioner has stayed the further proceeding of Title suit No. 209 of 2002, otherwise this suit would have been disposed of. So, he submitted that there is no bar to continue the two suits. He further submitted that opposite party has filed Title suit No. 209 of 2002 for getting back the documents of his properties alleging that she is not liable for payment of the loan money. So, he submitted that this suit has no nexus with the realisation of loan money and the Artha Rin suit has scope to proceed to realise the loan money. He has further submitted that Artha Rin Adalat is not a Civil Court. It is a Civil Court of limited jurisdiction only to realise the loan money. It has got no jurisdiction to decide any other matter. So, he submitted that there is no bar to continue both the suits as usual. By referring the judgment of Civil Petition for Leave to Appeal No. 738 of 2004 which has been disposed of on 5-7-2004, he submitted that respondent No. 1 filed Title suit No. 208 of 2007 which was renum­bered as Title Suit No. 197 of 2001 against this petitioner for declaration that the plaintiff had no liability to the petitioner bank for any loan amount and the so called memo of deposit of title dead dated 17-3-1988 was forged, concocted and illegal and the plaintiff is entitled to get back the title deed along with other supporting documents lying in the bank and prayed for a decree of Taka 75,00,000 as com­pensation against the petitioner bank. The trial Court decreed the suit in part without any order as to costs against which there was appeal. The appeal was dismissed and this petitioner bank was directed to return the scheduled documents. He submitted that the Appellate Court by its judgment and decree, dated 12-4-2004, affirmed the judgment of the learned Joint District Judge which has been reported in 56 DLR 588. The Appellate Court held that "jurisdiction of the Artha Rin Adalat has been created with a particular object for recovery of the loan and to that effect it is deemed to be a Civil Court, but it has not all the powers of the civil Court. "In the civil petition for leave to appeal the matter has been dealt with elaborately and the leave petition filed by the petitioner has been rejected. So, the learned Advocate for the opposite party submitted that by filing a subsequent suit in the Artha Rin Adalat, the bank wants to delay the matter. In such circumstances, he forcefully submit­ted that under no circumstance Title Suit No. 209 of 2002 can either be stayed or any order of simul­taneous hearing be passed. Therefore, he submitted for discharging the Rule with costs.
 
7.         We have perused the impugned order, dated 27-8-2005, passed by the learned Joint District Judge, 5th Court, Dhaka, in Civil Revision No. 518 of 2004 and that of the order, dated 24-10­-2004, passed by the learned Joint District Judge, 5th Court, Dhaka in Title suit No. 209 of 2002 and the citations referred by both the parties. As per section 18 of the Artha Rin Adalat Ain, 2003, no case filed in the Artha Rin Adalat can be transferred to any other Court for analogous hearing or any other suit can be brought to this Court for analogous hearing with the suit filed in the Artha Rin Adalat and it is settled law that Artha Rin Adalat is not a full-fledged Civil Court. It has been created by special enactment only for recovery of the defaulted loan. So, it has got no power to adjudicate on any other matters. The suit filed by the opposite party in the Court of the Joint District Judge, 5th Court, Dhaka, relates to his entitlement to return back the docu­ments of her properties together with declaration that she is not liable for the loan money to the bank as described in the plaint together with mandatory injunction directing the bank to give delivery of the original documents with compensation which is purely under the jurisdiction of the Civil Court and this point was also agitated in Civil Petition for Leave to Appeal No. 738 of2004 before the Hon'ble Appellate Division and their Lordships upheld the decision of the High Court Division and that of the trial Court. Therefore, we are unable to agree with the learned Advocate for the petitioner for invoking jurisdiction under section 115 of the Code of Civil Procedure to transfer Title Suit No. 209 of 2002 to the Artha Rin Adalat and to try it simultaneously with Artha Rin Suit No. 34 of 2004 as Joint District Judge. In such circumstances, we find that the learned Joint District Judge and the learned Additional District Judge committed no error in rejecting the petition of the petitioner bank filed under sections 10/151 of the Code of Civil Procedure. In view of that we find no merit in the Rule.
 
Accordingly, the Rule is discharged without any order as to costs. Since in Title Suit No. 209 of 2002 plaintiff has been examined as PW 1 in part, the trial Court is directed to dispose of the suit within three months from date of receipt of the Judgment.
 
Ed.