Shahe Alam (Md) Vs. Md. Golam Sarwar and others, 52 DLR (AD) (2000) 164

Case No: Civil Petition for Leave to Appeal No. 1205 of 1999

Judge: Mahmudul Amin Choudhury,

Court: Appellate Division ,,

Advocate: Mr. Md. Aftab Hossain,Mr. Fazlul Karim,,

Citation: 52 DLR (AD) (2000) 164

Case Year: 2000

Appellant: Shahe Alam (Md)

Respondent: Md. Golam Sarwar

Subject: Election Matter,

Delivery Date: 2000-1-19


Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
BB Roy Choudhury J
M Amin Choudhury J
 
Shahe Alam (Md)
……………………Petitioner
Vs.
Md. Golam Sarwar and others
…………………….Respondent
 
Judgment     
January 19, 2000.
 
The Code of Civil Procedure, 1908
Order XLI, Rule 14(3)
Even though The High Court Division acted under section 151 of Code of Civil Procedure, Order XLI rule 14(3) has given ample power to the High Court Division to dispense with service of notice upon the non contesting respondents.
 
Lawyers Involved:
Fazlul Karim, Senior Advocate instructed by Nawab Ali, Advocate-on-Record—For the Petitioner.
Aftab Hossain, Advocate-on-Record—For the Respondent No. 1.
Not represented—The Respondent No. 2-5.
 
Civil Petition for Leave to Appeal No. 1205 of 1999
 
JUDGMENT
 
Mahmudul Amin Choudhury J.-
 
1. This petition for leave to appeal is against judgment and order dated 18-8-1999 passed by a Single Bench of the High Court Division in Civil Revision No. 2561 of 1999. By this order the High Court Division dispensed with the service of notices upon opposite party Nos. 2 to 5.
 
2. The short fact leading to this petition is that on 11-12-1997 election for the constitution of No. 3 Atmol Union Parishad under Shibganj police station of Bogra was held and in that election respondents were contesting candidates and on 8-1-1998 the petitioner was declared elected as Chairman of the said Union Parishad who took, oath of office on 3-2-1998. Thereafter on 5-2-1998 respondent No 1 instituted Election Petition No. 3, of 1998 before the Tribunal praying for a declaration that the election held was void on certain grounds and that the petitioner was disqualified to contest the post of the Chairman as he was below 25 years and also on other ground Respondent No. 4 also filed a separate election petition which is Election Case No. 4 of 199 almost on similar grounds. The Election Tribunal, by order dated 11-4-1999 declared the election, of the petitioner void against which the petitioner moved the Appellate Tribunal who also upheld the decision of the Tribunal. The petitioner then moved the High Court Division in the present revisional application No. 2561 of 1999 and the. High Court Division issued Rule. Thereafter on 16-8-1999 an application was filed on behalf of respondent No. 1 praying for dispensation of this service of notices upon opposite party Nos. 2 to which was allowed by order dated 18-8-1999 by, the High Court Division. The petitioner then fuel this application for leave to appeal.
 
3. Mr. Md Fazlul Karim, learned Counsel appearing on behalf of the petitioner, submits that dispensation of service of notices upon respondent Nos. 2 to 5 is contrary to the provision of section 29 of the Local Government (Union Parishad) Ordinance, 1983. It is submitted that it exercising the authority under section 151 of the Code of Civil Procedure in dispensation of’ service of notice, the High Court Division 8 committed illegality. The learned Advocate contends that Order 41 rule 14 of the Code of Civil Procedure has not provided for any power upon the High Court Division to dispense with the service of notice upon respondent Nos. 2-5 and Election Rules also provided that such notices must be given to the contesting candidate of the election to which the petition relates.
 
4. We have gone through the provision of section 29(1) of the Election Ordinance and it provides that the Election Tribunal shall upon receipt of an election petition give notice to all contesting candidates of the election to which the petition relates. It is not the case of the petitioner that no such notice was issued by the Election Tribunal or by the Appellate Tribunal. Admittedly the service of notices has been ordered to be dispensed with by the High Court Division in revision. This section of the Election Ordinance it appears relates to the election petition. This has nothing to do with revisional application. Opposite party Nos. 2-5 have been impleaded in the election petition as well as in the appeal and they were also impleaded in the revisional application and from the perusal of the record it appears that they never entered appearance before the Election Tribunal or before the Appellate Tribunal and the High Court Division found that they are non contesting opposite parties.
 
5. It has been argued that under Order 41 rule 14 of the Code of Civil Procedure no discretionary power has been given to the court for dispensing with the service of notice on any respondent who did not appear and the High Court Division also found the submission to be correct but in passing the order of dispensation of service of notices the High Court Division acted under section 151 of the Code of Civil Procedure but as far back as in 1928 Calcutta Amendment has been made in Order 41 rule 14 of the Code of Civil Procedure and a new sub-rule (3) has been incorporated. Though as a matter of fact this new sub-rule has not been printed in the Government publications of the Code of Civil Procedure but as amendment was made in the year 1928 in Calcutta the provision is applicable in our country, as we have adopted that Code. This sub-rule (3) that provided that appellate Court in its discretion may make an order, at any stage of the appeal whether on its own motion or ex parte, dispensing with the service of notice on any respondent who did not appear.
 
6. Admittedly respondent Nos. 2-5 have not entered appearance before the Tribunal or the Appellate Tribunal. They are non-contesting respondents and in such a situation Order 41 rule 14(3) of the Code of Civil Procedure has given ample power to the High Court Division to dispense with the service of notice upon the non- contesting respondents which has been done by the High Court Division. The High Court Division though acted under section 151 of the Code of Civil Procedure they could have acted under Order 41 rule 14(3) of the Code of Civil Procedure. This amendment it appears has escaped the notice of the learned Advocate who appeared on behalf of the respondent before the High Court Division and also of the said Division. In view of the clear provision of the Rule and in view of the fact that section 29(1) of the Local Government (Union Parishad) Ordinance 1983 relates to issuance of notice in the election petition which has been done in present case we hold that no illegality and wrong has been committed by the High Court Division and this has not caused any prejudice to the petitioner. We therefore find no substance in this petition.
 
The petition is therefore dismissed.
 
Ed.