Carrying
frivolous, malafide suit is punishable offence
High
Court Division
Supreme Court of Bangladesh
First Appeal No 343 of 2002
Delwar Hossain and others
Vs
Janata Bank and others
Before Mr Justice AK Badrul Huq
and Mr Justice Md Abu Tariq
Date of Judgment: 5.5.2003
Background
AK Badrul Huq, J: It is wretchedness to observe that
many unscrupulous litigants in order to steer clear of order, judgment
and decree of courts adopt dubious ways and take recourse to ingenious
methods of presenting fraudulent and untenable litigations/proceedings
to foil judgment, order and decree of courts. Such tendency deserves
to be taken serious note of and fraudulent proceedings are to be nipped
in the bud at the threshold. The present proceeding is one of such where
judgment-debtors in order to nullify judgment and decree passed by Artha
Rin Adalat, Khulna in Artha Rin Case No 54 of 1998 without resorting
to remedies available to them under Artha Rin Adalat Ain of 1990, laid
a suit being Title Suit No 1 of 2002 in a court of ordinary civil jurisdiction
that is First Court of Joint District Judge, Khulna against decree-holder
Janata Bank. The suit is instituted for a declaration that the preliminary
and final decree passed in Artha Rin Suit No 54 of 1998 of Artha Rin
Adalat, Khulna is collusive and, also, for a declaration of Maliki Right
free from all encumbrances on the property mentioned in schedule to
the plaint and some other incidental declarations. Learned Joint District
Judge on the strength of a petition laid under Order VII, Rule 11 of
The Code of Civil Procedure (For short The Code) filed by decree-holder
Janata Bank rejected the plaint. Judgment dated 27.8.2002 was followed
by a decree. In recording rejection of plaint learned Joint District
Judge took into account section 6 of The Ain of 1990 and, also provisions
embodied in Order VII, Rule 11(d) of The Code and rendered positive
decision that Ain of 1990 is special statute and subject to provisions
contained in section 7 no order, judgment and decree of Artha Rin Adalat
could be challenged before any court or authority. Feeling aggrieved,
appellants preferred this appeal before this Court.
Deliberation
The fate of this appeal hinges on answer to the core question which
is whether the decision of rejection of plaint by Artha Rin Adalat warrants
any interference by this Court in the exercise of its appellate authority.
The question posed now may be broached and answered. Under Order VII,
Rule 11 of The Code a plaint can be rejected under four clauses which
are:
(a) Where it does not disclose a cause of action
(b) where the relief claimed is undervalued, and the plaintiff, on being
required by the court to correct the valuation within a time to be fixed
by the Court fails to do so:
(c) where the relief claimed is properly valued, but the plaint is written
upon paper insufficiently stamped, and the plaintiff, on being required
by the court to supply the requisite stamp-paper within time to be fixed
by the court, fails to do so:
(d) where the suit appears from the statement in the plaint to be barred
by any law.
Clause (d) of Rule
11 is relevant for our purpose. Rule 11(d) contemplates that a plaint
merits rejection when it stands bared by law on the doctrine that still
born suit should be buried in its inception so that no further time
is consumed in a fruitless litigation. The word "law" in clause
(d) means written law, general law or statute law. A suit which is on
the face of it incompetent because of an express or implied embargo
imposed upon it by a law should not be allowed to further encumber legal
proceedings. On examination of the plaint if it is found that the suit
is barred by some provision of law, it is the statutory duty of the
court to reject the plaint. The provision of Order 7 Rule 11(d) of The
Code can be, thus, pressed into service when the suit is barred by any
law.
Section 6(1) enshrines
that subject to the provision contained in section 7 of The Ain of 1990
no question in respect of proceeding, order, judgment and decree passed
by Artha Rin Adalat can be put forward in any court or before any authority.
Section 6(2) enjoins that notwithstanding anything contained in sub-section
(1) in the event of presentation of any petition before Artha Rin Adalat
under Order 9 Rule 13 of The Code for setting aside any exparte decree
passed by Artha Rin Adalat, the petitioner is required to deposit half
of the decreed amount or Bank Guarantee equivalent to the said amount
and that failure to deposit the petition shall not be entertained.
Section 7 postulates
that any person feeling aggrieved by any judgment or decree of Artha
Rin Adalat can file appeal before High Court Division within 30 days
of the judgment and decree. Section 7 further provides that no appeal
can be filed against an interlocutory order. The requirement is deposit
of half of the decreed amount.
Under the Ain of
1990 two remedies were available to judgement-debtor-plaintiff-appellant.
One, a petition under Order 9 Rule 13 of The Code and the other an appeal
before High Court Division. In both deposit of half of decreed amount
was a positive requirement and mandate. The plaintiffs-appellants without
availing the remedies available to them, challenged the rightness of
the judgment and decree in a suit before a court of ordinary civil jurisdiction.
The suit, thus, is eminently barred by law justifying rejection of plaint.
Examination of the decision rendered by learned Joint District Judge
and grounds canvassed in leading to decisions and ultimate conclusion
reached demonstrates that those are well founded on law. No interference
is, therefore, warranted.
Decision
Resultantly, this appeal is devoid of any substance and the same, thus,
fails. Appeal stand dismissed. Judgment and decree dated 27.8.2002 recorded
by learned Joint District Judge, First Court, Khulna in rejecting the
plaint are maintained. Regard being had to the blameworthy conduct of
plaintiffs-appellants in carrying frivolous, malafide and untenable
suit to the door of ordinary civil court we award cost of Taka 5,000/-
(Five Thousand) only upon them. Cost shall be paid to the decree holder
respondent Janata Bank.
Mr
M Qumrul Haque Siddique for appellants and Mr Syed Mafizur rahman for
respondent no 1.
