Case No: Writ Petition No. 1272 of 1998
Judge: Abu Sayeed Ahammed ,
Court: High Court Division,,
Advocate: Mr. Fazlul Karim,,
Citation: 53 DLR (2001) 254
Case Year: 2001
Appellant: Star Medical Store
Respondent: Subordinate Judge, Artha Rin Adalat and other
Subject: Property Law,
Delivery Date: 2001-01-18
53 DLR (2001) 254
High Court Division
(Special Original Jurisdiction)
Abu Sayeed Ahammed J
Khademul Islam Chowdhury J
Star Medical Store………………….Petitioner
Subordinate Judge, Artha Rin Adalat and others…….Respondents
January 18, 2001.
General Clauses Act (X of 1897)
Change in the manner for trial or dismissal of a litigation is more a procedural change of law and hence it is protected by General Clauses Act.
Cases Referred To-
Hazi Joynal Abedin Vs. State 30 DLR 371 and Colonial Sugar Reining Company Ltd. Vs. Irving (appeal Cases 1905).
Md. Fazlul Karim, Advocate—For the Petitioner.
Not represented- the Respondents.
Writ Petition No. 1272 of 1998.
Abu Sayeed Ahammed J. - This application under Article 102(a)(ii) of the Constitution of the Peoples Republic of Bangladesh has been filed by one Star Medical Store, represented by its proprietor Md. Habibur Rahman calling upon the respondents Subordinate Judge Court No. 2 and Artha Rin Adalat No. 1 Rangpur and the Manager Uttara Bank, Rangpur Branch, to show cause as to why the impugned judgment and decree passed ex-parte on 25-10-1990 in Artha Rin Case No. 55 of 1990 and the proceedings of that case should not be declared to have been made without any lawful authority and is of no legal effect.
2. The short facts leading to the dispute as has been stated in the writ petition are that, the petitioner took some loan from the respondent No.2 the Uttara Bank and since the loan could not he paid within the schedule time the said case was filed at first as an ordinary money suit being No.82 of 1982 for realisation of the said loan money. During the pendency of that suit Artha Rin Adalat Ain (Act 51 of 1990) came into effect. The said money suit which was filed on 7-12-1982 was transferred to the Artha Rin Adalat and was renumbered as Artha Rin Case No. 55 of 1990 as per amendment as made by addition of section 9 of the said Act which reads as follows:
“বিচারাধীন মামলা আপাততঃ বলবৎ অন্য কোন আইনে যাহা কিছুই থাকুক না কেন, অর্থ ঋণ আদালত (সংশোধন) আইন, ১৯৯০ (১৯৯০ সনের ৫১ নং আইন) প্রবর্তনের অব্যবহিত পূর্বে কোন আর্থিক প্রতিষ্ঠানের ঋণ আদায় সংক্রান্ত কোন মামলা কোন আদালতে বিচারাধীন থাকিলে উহা আইন প্রবর্তনের তারিখে যে জেলার উক্ত আদালত অবস্থিত সেই জেলায় প্রতিষ্ঠিত অর্থ ঋণ আদালতে স্তানান্তরিত হইবে এবং উক্ত মামলার ক্ষেত্রে এই আইন প্রযোজ্য হইবে।”
3. It can not be denied that the suit was for realisation of loan money received from the Bank being a financial institution by the present petitioner who was defendant in that suit. It is admitted by Mr. Fazlul Karim, the learned Senior Counsel that already execution Case has been filed. At this stage the present writ petition has been filed challenging the propriety and legality of the judgment and decree passed in the said Artha Rin Adalat Case inasmuch as the proceedings of that Case on the ground that as the money suit was filed far as back in the 1982 and as amendment of the Artha Rin Adalat Ain by addition of section 9 was made long after in the year 1990, the said money suit could not be legally treated as an Artha Rin Case and could not be tried in the Artha Rin Adalat and, as such, the proceeding of the Artha Rin Case and the judgment and decree passed therein is illegal and ultra vires of the Constitution and is against the fundamental right of the petitioner as guaranteed by the Constitution and the same has been infringed in view of the terms “অব্যবহিত পূর্বে” has been incorporated in the said amendment and the instant suit was filed in the year 1982, so it is not covered by the amendment and it should have been decided as an ordinary money suit and not as Artha Rin Adalat Case. Mr. Karim further submits that by adding the term “অব্যবহিত পূর্বে” law makers meant the suits which were filed within the reasonable time before the said amendment was made, and those should have been tried as Artha Rin Case and since the present suit was pending from 1982 it does not come within the meaning of the terms “অব্যবহিত পূর্বে”. The second point Mr. Karim urged before the Court is that retrospective effect can not be given in a piece of law by the subsequent amendment of the same, as section 9 has been added by amendment to the said Act long after filing of the suit and, as such, fundamental and legal right of the petitioner has been infringed as because if the suit would have been tried as an ordinary money suit as covered by the Civil Procedure Code the petitioner could have filed an appeal on payment of ad valorem court fee only, on the decretal amount and within 90 days from the date of the decree, But as the instant suit has been decided as an Artha Rin Case an appeal could be filed within 30 days from the date of decree and on payment of 50% of the decretal amount. We see that the relevant amendment came in 1990. It has been stated in the said provision of law that the suits of the nature of Artha Rin suit as earmarked in the said Act pending immediately before the said Act and the amendments came after, shall be transferred to the Artha Rin Adalat and will be tried under that Act. So it is clear that the term “অব্যবহিত পূর্বে” is related to pending on the suits of the same nature and obviously, the law does not say and mean that the suits which were filed immediately before the said amendment came in, should be transferred to the Artha Rin Adalat and will be tried accordingly.
4. So, our considered view is that, all the suits which were pending before incorporation of the said amendment to the said Act, should have been transferred to the Rin Adalat in terms of that amendment and the date of filing of the suit or suits is not the question or criteria as invited by section 9 of the said Act. Section 6 of the General Clauses Act also protects the spirit and meaning of the said portion of law to the aforesaid effect. Section 6 of the General Clauses Act reads as follows:
“Where this Act, or any 1(Act of Parliament) or Regulation made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not—
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or
(c) affect any right, privilege, obligation or liability acquired accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.”
5. So it is very clear in view of the above provision of the General Clauses Act, as well, that the instant Suit comes within the purview of section 9 of the Artha Rin Ain, to be tried as an Artha Rin case, it is a mere procedure of trial of a suit. So it can be given retrospective effect. Change in the manner for trial or (dismissal of a litigation, is more a procedural change of law and hence it is protected by General Clauses Act and as referred above loan money was given by the financial institution like Uttara Bank and the Bank instituted the suit for realisation of loan money. It is not the retrospective effect, on action rather in procedure which is not illegal and can not be said to have curtailed or infringed the legal or constitutional right of any citizen including the petitioner in the instant case.
6. Mr. Karim cites the decision in the case of Hazi Joynal Abedin Vs. State 30 DLR 371, By that decision a legal conflict covered by the criminal law and disposed of by the Martial Law Court was decided. In view of the facts and circumstances of the instant Case which comes within the ambit of Civil Procedure Code and differs both in facts and principle with the case of the cited decision the said principle is not applicable. Mr. Karim cites also another decision which is of the Privy Council, in the Case of Colonial Sugar Refining Company Ltd Vs. Irving (Appeal Cases 1905), page-369. In that case their Lordships of the highest Court of the world then held as follows:
“Although the right of appeal from Supreme Court Queensland to His Majesty in Council given by the order in council of June 30, 1860 has been taken away by the Australian Commonwealth Judiciary Act, 1903, 2 and the only appeal therefrom now lies to the High Court of Australia yet the Act is not retrospective and a right of appeal to the King in Council in a suit pending when the Act was passed and decided by the Supreme Court afterwards was not taken away.”
7. That decision is of 1905. By this time 95 years has passed. Much water has rolled down through the Indian Ocean and the Atlantic Ocean by this long time of 95 years. Great change has come in the world. Privy Council is no more for Bangladesh. Peoples’ character has changed largely. The world has taken a new dimension. Old laws, as such, required some change and amendments, in the light of the present social condition, structure and character of the people at large, specially in Bangladesh, who take huge loan from the financial institutions but do not repay the same in time or at all, and on this new background, and because of long generation gap, the new law namely, Artha Rin Ain and the amendment has been made. Bangladesh is no more a colony of the United Kingdom. So that decision of the Privy Council although in spirit and meaning has got much importance, but in the instant procedural law, it is not applicable, after passing of 95 years by this time.
For the reasons and discussions made above, this writ petition does not merit and accordingly it is rejected summarily.