Safi Uddin Vs. District Judge, Dhaka & others, 3 LNJ AD (2014) 1

Case No: Civil Petition for Leave to Appeal No. 2208 of 2011

Judge: Md. Abdul Wahhab Miah,

Court: Appellate Division ,,

Advocate: Syed Shaheed Hossain,,

Citation: 3 LNJ AD (2014) 1

Case Year: 2014

Appellant: Safi Uddin

Respondent: District Judge, Dhaka & others

Subject: Writ Petition, Writ Jurisdiction,

Delivery Date: 2012-07-08


APPELLATE DIVISION
(CIVIL)
 
Md. Muzammel Hossain, CJ.
Md. Abdul Wahhab Miah, J
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J
Muhammad Imman Ali, J
Md. Shamsul Huda, J.
 
Judgment
8th July, 2012.
 
Safi Uddin
. . .Petitioner (In person).
-Versus-
District Judge, Dhaka & others
. . . Respondents.
 
 
Constitution of Bangladesh, 1972
Article 102
Code of Civil Procedure (V of 1908)
Section 96
The suit proceeded and the same was dis­missed on 22.10.2009 on contest and decree was drawn up on 29.10.2009. Against the said decree, the petitioner had an efficacious /alternative remedy by way of filing an appeal under section 96 of the Code, but instead filed the writ petition without giving any explanation for not availing the said efficacious/alternative remedy. ...(18)
 
Constitution of Bangladesh, 1972
Article 102
Code of Civil Procedure (V of 1908)
Order XXXVII Rule 2(2)
There is no scope on the part of the writ-petitioner to challenge the judgment and decree passed in the sum­mary suit styling the same as an order by taking objection of rule 2(2) of Order XXXVII of the Code, that is, non-obtain­ing of leave of the Court to appear and con­test the suit. When the suit itself was dis­missed on merit on contest by judgment and decree dated 22.10.2009 by the learned District Judge, by no stretch of imagination, it can be said that leave to appear and to defend the suit was not given to the defendant by the concerned Judge within the meaning of rule 2(2) of Order XXXVII of the Code. ...(21)
 
Constitution of Bangladesh, 1972
Article 102
Writ petition has to be filed following the High Court Division Rules and the grounds and prayers have to conform to the language of the Article 102 of the Constitution. Rule issuing Bench exercising the initial Power of judicial review must apply its judicial mind while issuing Rule. The Appellate Division strongly disapproved such exercise of power by the Rule issuing Bench.
The application under article 102 of the Constitution was not filed following the High Court Division Rules and the grounds taken and the prayers made there­in did not conform to the language of the said article and no explanation, whatsoev­er, was given therein for not filing the appeal against the decree dismissing the suit. It further appeared to us that the Rule issuing Bench issued the Rule just as a matter of course, as if it were the inherent right of the litigant, the petitioner to get a Rule on mere filing an application under article 102 of the Constitution. The concerned Bench of the High Court Division while entertaining the writ petition leading to the issuance of the Rule failed to con­sider the mistake in the cause title of the writ petition, non impleading of the neces­sary party, namely: American Express Bank Limited (the defendant in the sum­mary suit) in the writ petition, impugning the judgment and decree passed by the District Judge styling the same as order, besides the defect in formulating the grounds and couching the prayer as point­ed out hereinbefore and thus, fell into an error in exercising the initial power of judicial review by issuing the Rule. Had the Rule issuing Bench applied its mind to the above apparent aspect of the writ peti­tion, possibly, no Rule would have been issued on the application filed by the peti­tioner. We strongly disapprove this kind of exercise of power by the Rule issuing Bench of the High Court Division. ...(22)
 
For the Petitioner : Safi Uddin, in person.
For the Respondents: Syed Shaheed Hossain, Advocate, instructed by Md. Zahirul Islam, Advocate-on-Record
 
Civil Petition for Leave to Appeal No. 2208  of  2011
 
JUDGMENT
Md. Abdul Wahhab Miah J.

This peti­tion has been filed by the petitioner against the judgment and order dated the 16th day of May, 2011 passed by a Division Bench of the High Court Division in Writ Petition No. 8824 of 2009 discharging the Rule.

2.         Facts giving rise to this leave petition arc as follows:

3.        The petitioner filed the said writ peti­tion before the High Court Division in a cumbersome manner   challenging the order (though it was a decree) dated 22.10.2009 passed by the District Judge, Dhaka dismissing Summary Suit No. 16 of 2005. The petitioner impleaded the District Judge, Dhaka and the Government of Bangladesh, represented by the Secretary, Ministry of Law as respondent Nos. 1 and 2 without impleading the sole defendant, American Express Bank Limited and then in the cause title it was written as:
IN THE MATTER OF:
Safiuddin         —Plaintiff
VERSUS
American Express Bank Ltd—Defendant
4.         Grounds taken in the writ petition were nowhere near the language of article 102 of the Constitution of the People’s Republic of Bangladesh (the Constitution).

5.         In the prayer of the writ petition, Rule was prayed for only against the District Judge, Dhaka calling upon him to show cause as to why the order dated 22.10.2009 dismissing Summary Suit No. 16 of 2005 under the provisions of rule 2(2) of Order XXXVII of the Code of Civil Procedure “without passing by a Judge, order granting leave to appear and defend” shall not be declared to be “violation of the provisions of Rule 2-2 of Order XXXVII of the Code.” Prayer was also made as to why Summary Suit No. 16 of 2005 shall not be disposed of by passing a  decree on admission on default by the  defendant to obtain court's order granting leave to appear and defend, in accordance with rule 2-.(2) of Order XXXVII of the Code. Thus the prayers were also not made in conformity with the language of  article 102 of the Constitution.

6.         However, after the issuance of the Rule, American Express  Travel Related Services Company, Inc (AETRSCO) World Financial Centre, American Express Tower, New York, USA represented by  the Attorney Mr. Rezwanul Haque, Advocate got itself added as respondent No.3.

7.         In the body of the writ petition, facts were stated in a more cumbersome manner which are as follows:

8.         The cause of action of the application under article 102 of the Constitution arose on alienation of right to a decree on admission of debt on enactment under sec­tions 5 and 6 of the Negotiable Instruments Act, 1881 (the Act, 1881), on Bill of Exchange, violating the provisions of rule 2(2) of Order XXXVII of the Code of Civil Procedure (the Code), "occasion­ing on passing the impugned order" dis­missing Summary Suit No. 16 of 2005 on Bill of Exchange (cheque). The said suit was filed by filing an application under rule 2(2) of Order XXXVII of the Code of "The Summary procedure on Negotiable Instruments" for recovery of debt "on enactment." After the suit was admitted and numbered, the summons thereof in Form No.4 in Appendix B of the Code was duly served upon the defendant-Bank on 21.09.2005 summoning it to obtain 'from a Judge, within 10 days from service; leave to appear and defend," the suit with the warning that its defaults to obtain such leave within the time mentioned therein the allegations in the plaint will be deemed to be admitted and the plaintiff shall be entitled to a decree for the sum mentioned in the summons. Since the defendant-Bank defaulted to appear with­in the period of 10(ten) days from the date of service of the summons on 21.09.2005 or to obtain leave to appear and defend the suit, decree on admission was passed in the suit on 22.01.2006 in accordance with the provisions of rule 2(2) of Order XXXVII of the Code. Thereafter, the learned District Judge alienated the right of the petitioner to a decree on admission on passing the impugned order dismissing the suit in violation of the provisions of rule 2(2) of Order XXXVII of the Code. Thereafter, the petitioner "served notice under the provision of article 102 of the Constitution" and filed the writ petition.

9.         In the writ petition, it was further con­tended by way of submission that the defendant-Bank defaulted to appear or obtain the Court's order granting leave to appear and defend the suit by filing "certi­fied copy" of "entry in banker book" with­in the meaning of section 4 of the Banker's Book Evidence Act, 1891 dis­closing such fact as would prove consider­ation for the instrument or instruments in question in accordance with the provisions of rule 3 of Order XXXVII of the Code; the defendant, American Express Bank Ltd, (it was not made a party in the writ petition as already stated hereinbefore) is a Banker within the meaning of section 3(b) of the Act, 1881 transacting the busi­ness of accepting deposit of money from the public payable on demand and withdrawal by order; according to the provisions of sections 5 and 6 of the Act, 1881, Bill of Exchange drawn on Bank is a cheque and is a "debt on enactment", within the meaning of section 31 thereof; the defendant Bank having sufficient fund in its hands must pay the Bill of Exchange (cheque) and in default, must compensate the drawer for loss or damage caused on such default; in accordance with the provi­sions of section 128(2)(f)(i) of the Code "The Summary procedure on Negotiable Instruments" under Order XXXVII of the Code is the only efficacious remedy.

10.       From the impugned judgment and order as well as from the record, it further appears that the  Rule  was  issued on respondent No.l, District Judge, Dhaka only to show cause as to why "the order passed  on  22.10.2009  dismissing  the Summary Suit No. 16 of 2005 violating the provisions of Rule 2(2) of Order XXXVII (sic) Code of Civil Procedure; without passing the Court of District Judge, Dhaka the Court's order granting leave to appear or to defend shall not be declared to have been passed without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.'

11.       From the impugned judgment and order, it appears that the Division Bench which heard the Rule allowed the added respondent No. 3 to contest the Rule by fil­ing an affidavit-in-opposition wherein it was contended, inter alia, that the petition­er earlier instituted Money Suit No. 13 of 1996 in the Court of Joint District Judge, 5th Court, Dhaka over the same cause of action praying for a decree to the effect:

বাদীর অনুকূলে বিবাদীদ্বয়ের বিরম্নদ্ধে তপসিল বর্ণিত ২৫ টি ট্রাভেলার্স চেকের মূল্য ২৫০০ মার্কিন ডলার হিসাবে ১০০৯৩৩.৭৫ টাকা এবং কমিশন ও অন্যান্য চার্জ বাবদ ১০৮৯.২৫ টাকা, সর্বমোট ১,০২,০২৩/- টাকা আদায়ের ডিক্রি দিতে.

12.       The suit on being transferred to the Court of Joint District Judge and Artha Rin Adalat, Third Court, Dhaka was renumbered as Money Suit No. 14 of 1999. During the pendency of the said money suit, the petitioner without seeking per­mission of the Court instituted Summary Suit No. 16 of 2005 before the District Judge, Dhaka under Order XXXVII of the Code. The Court without due sanction of law most illegally decreed Money Suit No. 14 of 1999 for Tk. 1,02,023. 00 although all 25 (twenty five) travelers -cheques each of U.S$ 100 were encasscd on 08.08.1995 via Philadelphia International Bank, New York, because those were duly signed by the plaintiff. Being aggrieved by and dissatisfied with the said decree, the defendant-bank pre­ferred Money Appeal No. 09 of 2000 before the District Judge, Dhaka, which was eventually heard by the learned Additional District Judge, Seventh Court, Dhaka who by his judgment and decree dated 24.05.2003 allowed the appeal and set aside the judgment and decree passed by the trial Court and remanded the suit for rehearing on taking further evidence on the said travelers cheques. The trial Court accordingly, proceeded with the suit as per direction given by the appellate Court which is still pending for disposal. Since all travelers cheques were encashed and disposed of, Order XXXVII of the Code had no manner of application in the present case. During the pendency of the said Money Suit the defendant Bank was merged with Standard Chartered Bank with effect from 01.08.2005. Due to the change of management, the defendant Bank could not trace out any notice/sum­mons issued by the Court concerned. The concerned officers of the defendant-Bank, subsequently, on receipt of notice issued in Summary Suit No. 16 of 2005 regarding payment of the decreetal amount exam­ined the connected records and filed an application on 24.04.2006 under Order XXXVII, rule 4 of the Code with the prayer for setting aside the ex-parte decree dated 15.01.2006 and to give chance to the defendant to defend the suit on merit. Subsequently, on 25.05.2006 the defen­dant-Bank filed a supplementary affidavit in support of its case and regretted for its inability to take appropriate action when the summons "appear/may have been served at a time when the situation was unusual in nature, and sought leave of the Court to defend the suit upon setting aside the ex-parte decree." Initially the Summary Court passed ex-parte decree for taka 1,62,500.00 against the alleged loss of US$ 2500, but subsequently, the decree was amended without notice to the Bank for US$ 1,19,605.00 upon an application of the plaintiff filed under sections 152 and 153 of the Code. The plaintiff's claim is T.C. for US$ 2500 but the decree was passed for US$ 1,19,605.00 causing serious hardship to the defendant. Moreover, the Summary Court could not, at all, pass any ,decree since no negotiable instrument was before the Court, rather those having been encashed and honoured the summary suit was incompetent. Since the T.C. business of the added respondent was conducted in Bangladesh, among others, by American Express Bank and the said Bank closed its business here the added respondent on 20.11.2008 filed an application in Summary Suit No. 16 of 2005- to substitute the name of the added respondent in the plaint and the written statement for American Express Bank Ltd and the trial Court by order dated 12.08.2009 allowed the same. The added respondent then contested the suit in its own behalf and adduced evidence, oral and documentary, but the plaintiff neither filed any document nor adduced any oral evidence to -prove his case. The learned District Judge dismissed the suit by his judgment and decree dated 22.10.2009. The trial Court's order of granting leave to defend the suit setting aside the ex-parte decree was challenged in the High Court Division by the petitioner in Civil Revision No. 2855 of 2006 but he lost. In view of the provisions of section 96 of the Code, the writ petition was not maintain­able.

13.       A Division Bench of the High Court Division on hearing the said writ petition by the impugned judgment and order dis­charged the Rule; hence this petition for leave to appeal.

14.       Safi Uddin, petitioner, has appeared in person lie tried to assail the impugned judgment and order by submitting that the High Court Division totally misconceived the provisions of rules 2(2) and 4 of Order XXXVII of the Code vis-a'-vis the facts and circumstances of the case, particularly the fact that the defendant failed to appear and obtain leave to contest the suit within 10(ten). days as was mentioned in the summons served upon it in Form No.4 in Appendix B thereof and thus, erred in law in discharging the Rule maintaining the order dated  22.10.2009  passed  by  the District Judge dismissing the suit and as such, the same calls for interference by this Division.
15.       Syed Shaheed Hossain, learned Advocate, entering caveat on behalf of respondent No. 3, on the other hand, sup­ported the impugned judgment and order passed by the High Court Division.

16.       From the impugned judgment and order, it appears that the Rule was dis­charged on the finding, inter alia, that the writ petition alleging the violation of rule 2(2) of Order XXXVII of the Code, that is, non-obtaining of permission of the Court by the respondent to appear and contest the suit was absolutely a miscon­ceived one as the said point was raised and decided in Civil Revision No. 2855 of 2006 filed against the   order dated 11.07.2006 by which the ex-parte decree passed in the summary suit on 15.01.2006 was set aside and the suit was restored to its file and number; on 3  1.03.2008 the petitioner himself prayed before the Court to pass an order under Order XXXVII, rule 4 of the Code and then On 09.08.2009 the petitioner again made a prayer "to direct that all the orders passed since 9.4.2006 on allowing the defendant to appear be deleted" which prayer was rejected on 12.08.2009 vide order No.51, but this order which relates to the issue in question, was never agitated before higher forum. Ultimately, the trial Court on fram­ing issues and discussing the evidence dis­missed the summary suit on 22.10.2009 mainly on the finding that the plaintiff failed to prove his case and as such, he was not legally entitled "to replacement or refund of lost travelers cheques" and that the suit was barred under order XXIII, rule 1(3) of the Code.

17.       The application filed by the defendant-Bank under Order XXXVII, rule 4 of the Code has been filed by respondent No.3 by filing an additional paper book. From the prayer of the application, it appears that along with the prayer for setting aside the ex-parte decree dated 15.1.2006 (decree was drawn and signed on 25.1.2006) and restoring the summary suit to its file and number, prayer was also made to give the defendant a chance to contest the suit on merit.

18.       From the order dated 11.07.2006 passed in Summary Suit No. 16 of 2005, it appears that the Court allowed the said application, set aside the ex-parte decree passed on 15.1.2006 and restored the suit to its original file and number and fixed the next date on 13.08.2006 for filing writ­ ten statement and thus, gave leave to the defendant-Bank to contest the suit within the meaning of rule 2(2) of the Code; the moment-, the  ex-parte  decree was set aside and the defendant was allowed to file written statement which was affirmed by the High Court Division in Civil Revision No.2855 of 2006, the plaintiff- petitioner, no more, could say that he was entitled - to the decree for the sum claimed by him in the suit on the plea of defen­dant's failure to appear in the suit within the time fixed in the summons in Form No.4 in Appendix-B as provided in rule 2(2) of Order XXXVII of the Code. Besides, that from the impugned judgment and order it further appears that the peti­tioner filed an application on 9.8.2009 in the summary suit for deleting all orders passed since 09.04.2006 allowing the defendant to appear and the Court by its order dated 12.08.2009 rejected the appli­cation on the ground that the order dated 11.07.2006 setting aside the ex-parte decree was upheld by the High Court Division in Civil Revision No. 2855 of 2006 and against the order dated 12.08.2009, the petitioner did not move the higher Court, Moreso, we failed to understand how the petitioner could file the writ petition without impleading American Express Bank which was the sole defendant in the suit and on whose application, the ex-parte decree was set aside and that too praying for issuance of Rule only upon respondent No.l, the District Judge, Dhaka. It further appears that the Rule in the civil revision in which the order dated 11.07.2006 was challenged was discharged on 31.07.2007. Thereafter, the suit proceeded and the same was dis­missed on 22.10.2009 on contest and decree was drawn up on 29.10.2009. Against the said decree, the petitioner had an efficacious/alternative remedy by way of filing an appeal under section 96 of the Code, but instead filed the writ petition without giving any explanation for not availing the said efficacious/alternative remedy.

19.       The cause title as well as the prayer of  the writ petition show that the petitioner challenged the  order dated 22.10.2009 passed in Summary Suit No. 16 of 2005 by which the suit was dismissed although in fact, it was a judgment and decree. It is also worth noting that the petitioner filed the writ petition suppressing the material facts that on an application filed by the defendant-Bank under rule 4 of Order XXXVII of the Code, the ex-parte decree passed earlier in the summary suit was set aside and the defendant Bank was allowed to file written statement and the order, set­ting aside the ex-parte decree was upheld in Civil Revision No. 2855 of 2008 and the further fact that his application for deleting all orders since 09.04.2006 allowing the defendant to appear was rejected on 12.08.2009 against which he did not move the higher Court.

20.       From the judgment and order of the High Court Division in Civil Revision No. 2555 of 2006, it further appears that the point agitated in the writ petition was squarely agitated there, but it did not find favour of the Court and a Division Bench of the High Court Division on detailed discussion discharged the Rule maintaining the order setting aside the exparte decree by the learned District Judge with the finding:
 
"On perusal of the application under Order 37 Rule 4, we are satisfied that the defendant bank made out a ease of special circumstance for not appear­ing in the suit when -the suit was taken up for exparte decree and it was beyond its control. We also noticed that the initial claim of the plaintiff was US$ 2500.00 equivalent to Tk. 1,62,500.00 but the learned District Judge abruptly amended the decree on the basis of an application filed by the plaintiff and decree US$ 1,19,606.00. This modification appears to us suspi­cious. We also noticed that the cheques were allegedly lost on 05.02.95 and the summary suit was instituted on 13.05.05, more than 10 years after the alleged missing. The defendant bank merged with the Standard Chartered Bank on 01.08.2005 and the plaintiff had cho­sen the time to institute the suit during that transitional period, when it was probable that the summons of the suit could not be traced out as the plaintiff had already instituted a Money Suit. On consideration of the facts and cir­cumstances of the matter, we arc of the view that though the learned District Judge has not assigned proper reason but the defendant bank has been able to make out a case of spe­cial circumstances for not appearing in the suit when the suit was taken up for exparte hearing. In view of the above we find substance in the con­tention of the learned Advocate for the opposite party bank. We hold that the learned District Judge has com­mitted no error of law occasioning failure of justice in setting aside the exparte decree, In view of the above, we find no merit in this rule."

21.       Therefore we do not see any scope on the part of the writ-petitioner to challenge the judgment and decree passed in the sum­mary suit styling the same as an order by taking objection of rule 2(2) of Order XXXVII of the Code, that is, non-obtain­ing of leave of the Court to appear and con­test the suit. When the suit itself was dis­missed on merit on contest by judgment and decree dated 22.10.2009 by the learned District Judge, by no stretch of imagina­tion, it can be said that leave to appear and defend the suit was not given to the defen­dant by the concerned Judge within the meaning of rule 2(2) of Order XXXVII of the Code. Moreso, the Code clearly provid­ed for an appeal against the judgment and decree dated 22. 10.2009 passed in the sum­mary suit within the meaning of section 96 thereof which was definitely efficacious, the writ petition filed by the petitioner against the said judgment and decree was not maintainable and the High Court Division rightly held so.

22.       In the context, we arc constrained to observe that before issuing Rule on an application under article 102 of the Constit-ution, it is the duty of the Court exercising the power of judicial review to see that in filing the application, the rele­vant rules of High Court Division Rules are followed, the grounds taken in the application and the prayer made therein conform to the language of the said article of the Constitution. In case the Statute provides a remedy by way of appeal or otherwise, there must be an explanation in the application for not availing the same, but as pointed out hereinbefore, the application under article 102 of the Constitution was not filed following the High Court Division Rules and the grounds taken and the prayers made there­in did not conform to the language of the said article and no explanation, whatsoev­er, was given therein for not filing the appeal against the decree dismissing the suit. It further appeared to us that the Rule issuing Bench issued the Rule just as a matter of course, as if it were the inherent right of the litigant, the petitioner to get a Rule on mere filing an application under article 102 of the Constitution. The concerned Bench of the High Court Division while entertaining the writ petition leading to the issuance of the Rule failed to con­sider the mistake in the cause title of the writ petition, non impleading of the neces­sary party, namely: American Express Bank Limited (the defendant in the sum­mary suit) in the writ petition, impugning the judgment and decree passed by the District Judge styling the same as order, besides the defect in formulating the grounds and couching the prayer as point­ed out hereinbefore and thus, fell into an error in exercising the initial power of judicial review by issuing the Rule. Had the Rule issuing Bench applied its mind to the above apparent aspect of the writ peti­tion, possibly, no Rule would have been issued on the application filed by the peti­tioner. We strongly disapprove this kind of exercise of power by the Rule issuing Bench of the High Court Division.

23.       Be that as it may, we find no error committed by the High Court Division in passing the impugned judgment and order calling for interference by this Division.

24.       Accordingly, this petition is dismissed.

End.