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Ex-parte decree in Artha Rin cases unwelcome

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07th-Jan-2017       Readers ( 95 )   0 Comments
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High Court Division :
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Zafar Ahmed J
Abdul Hamid Chowdhury  (Iqbal) and another …………. Petitioner
vs
Artha Rin Adalat  and  another. ..... Respondents
Judgment
November 5th, 2015
Artha Rin Adalat Ain (VIII of 2003)
 Section 10(2)
The law itself is a flexible one. We simply cannot understand when the law itself is so positive on the issue how the court below passed an ex-parte decree holding that though the defendant was given time to file written statement they did not file the same. Absolutely on a perverse finding and without applying judicial mind the Court below decreed the suit ex-parte where in so doing not even the plaintiff was examined. It baffles us. It pricks our judicial conscience when we see the issue which goes at the root of jurisdiction of the suit has been disregarded in such a manner without any subjective or objective consideration whatsoever which leads to absurdity and absolutely without any lawful authority.
Under the circumstances this argument has no legs to stand. The ex-parte decree passed upon the admitted facts has been absolutely vitiated by perversity. In this case the Adalat exceeded it's jurisdiction and acted in such a manner in deciding the issue that certainly added to have been passed without jurisdiction leading to perversity. It is a case of a kind where the rigidity of the Role of the Appellate Division and this Division that no writ lies against the judgment and decree of the Artha Rin Adalat shall not apply. …………(5 & 6)
Md Jamiruddin Sirkar, Senior Advocate with Md Farhad Hossain Kazal. Advocate-For the Petitioners.
Hosainal Kabir, Advocate-For the Respondent No. 2.
Judgment
Md Ashfaqul Islam J : At the instance of the petitioners. Abdul Hamid Chowdhury (Iqbal) and another, this Rule was issued in following terms:
"Let a Rule Nisi be issued calling upon the respondents to show cause as to why the order and ex-parte decree dated 3-3-2014 passed by the Artha Rin Adalat & Joint District Judge, 2nd Court, Sylhet in Artha Rin Suit No.3 of 2013 rejecting the application of the petitioners to allow them contest in the suit by accepting the written statement (Annexure-C) should not be declared to have been done without lawful authority and is of no legal effect."
2. The background leading to the Rule, in short is that the respondent No.2- Agrani Bank Limited, Zinda Bazar. Sylhet as plaintiff filed Artha Rin Case No. 3/2013 before the Artha Rin Adalat and Joint District Judge, 2nd Court, Sylhet for recovery of Taka 65,16,608 (Sixty five lac sixteen thousand six hundred eight) against the CC loan of Taka 50,00,000 (fifty lac) earlier granted to the petitioners on 5-7-2010 stating inter alia that the petitioners took Taka 30,00,000 (thirty lac) CC loan from First Security Islami Bank Ltd. and the plaintiff after sanction of the loan and execution of registered deed paid Taka 11,00,000 (eleven lac) to the petitioners and repaid Taka 39,00,000 (thirty nine lac) to the First Security Islami Bank Ltd as per stipulated terms and conditions or the loan. But owing to nonpayment in part or full amount of the outstanding the respondent No.2 Agrani Bank Ltd. Zinda Bazar Branch, Sylhet through their engaged advocate served a legal notice upon the defendants notifying that due to nonpayment of any amount they will have to auction the mortgaged property. It is also stated that without having any response the plaintiff filed the instant suit for recovery of Taka 65,16,608 including the principal amount as well as the interest till 13-1-2012 (Annexure-"A"). It has been also stated that right after filing of the plaint formalities of serving of summons was heeded to. On 3-3-2014 the suit was fixed for ex-porte decree and the defendants on the same date i.e. on the date of fixed for ex-parte decree appeared with an application (Annexure-D) stating the reasons for delay in filing the written statement and made a positive prayer for hearing the suit on contest upon accepting the written statement.
3. Curiously enough we have found that the court without accepting the said application passed  the exparte decree on the same day observing as under:
"Heard the learned lawyer appearing on behalf of defendant No. 1/2. Perused the petition and record of the case. It is found that today is fixed for exparte trial, Previously, defendant took several times for submission of written objection. It is also found that stipulated time for submission of written objection has already been elapsed. At this stage there is no scope to admit written objection. So, the petition of defendant No. 1/2 is rejected."
4. In the said order the Adalat observed: "Previously defendant took several times for submission of written objection."
This assertion is absolutely wrong as it has been detected on our careful perusal of the entire order sheet (Annexure-"E") filed by the petitioner vide supplementary affidavit dated 5-5-2014 in as much as the defendant for the first time appeared in the proceeding on 3-3-2014. Further in order No. 15 dated 3-3-2014 the Adalat observed that the defendant entered appearance by filling a new Vokalatnama which is also a palpable wrong for the same reason since only on 3-3-2014 the defendant for the first time filed written statement. How come question of new Vokalatnama arises then?
Section 10 of the Ain enjoins:-
“১০. লিখিত জবাব দাখিলের সময়সীমা “ (১) উপ-ধারা (২) এর বিধান সাপেক্ষে অর্থ ঋণ আদালত, বিবাদী উপ¯ি'ত হওয়ার ৪০ দিবসের পরবর্তীতে বিবাদী কর্ত"ক দাখিলকৃত কোন লিখিত জবাব গ্রহণ করিবে না এবং এইরূপ ক্ষেত্রে আদালত অবিলম্বে একতরফা সূত্রে মামলা   নিষ্পত্তি করিবে।
(২) উপ-ধারা (১) এ বিধান সত্ত্বেও, অন্যূন ২০০০ (দুই হাজার) এবং অনূর্ধ্ব ৫০০০ (পাঁচ হাজার) টাকা পর্যন্ত খরচ প্রদানের পূর্বশর্ত সাপেক্ষে আদালত উপরি উক্ত সময়সীমা অনূর্ধ্ব  আরো ২০ (বিশ) দিবস পর্যন্ত বর্ধিত করিতে পারিবে।
(৩) এই ধারার অধীন প্রদেয় খরচ সরকারি রাজস্ব হিসাবে নির্ধারিত খাতে জমা করিয়া উহার চালান প্রমাণস্বরূপ আদালত দাখিল করিতে পারিবে।”
5. The law if be read with sub-section 2 it gives a clear picture that the law itself is a flexible one. We simply cannot understand when the law itself is so positive on the issue how the court below passed an ex-parte decree holding that though the defendant was given time to file written statement they did not file the same. Absolutely on a perverse finding and without applying judicial mind the Court below decreed the suit exparte where in so doing not even the plaintiff was examined. It baffles us.
It pricks our judicial conscience when we see the issue which goes at the root of jurisdiction of the suit has been disregarded in such a manner without any subjective or objective consideration whatsoever which leads to absurdity and absolutely without any lawful authority.
6. The learned counsel for the bank has tried to impress upon us that the petitioner should have filed appeal under section 19 of the Ain to Ventilate his grievances. Under the circumstances this argument has no legs to stand.
The ex-parte decree passed upon the admitted facts has been absolutely vitiated by perversity. In this case the Adalat exceeded it's jurisdiction and acted in such a manner in deciding the issue that certainly added to have been passed without jurisdiction leading to perversity. It is a case of a kind where the rigidity of the Rule of the Appellate Division and this Division that no writ lies against the judgment and decree of the Artha Rin Adalat shall not apply.
7. In the result, the Rule is made absolute with cost. The ex-parte decree dated 3-3-2014 is declared to have been passed without lawful authority and is of no legal effect and set aside. The case is sent back on remand to the Adalat to give a fresh decision after hearing the parties in accordance with law at the earliest.

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