High Court Division :
(Civil Appellate Jurisdiction)
Md Miftah Uddin
ANM Bashir Ullah J
Kismat Traders and
Pubali Bank Limited and others ……..
November 22nd, 2016
Code of Civil Procedure (V of 1908)
Remand--The ends of justice for both the parties would be best served if the suit is sent back on remand for a trial, afresh setting aside the ex-parte judgment and decree, appealed against.
The defendants had deposited a good amount but the trial Court though at one stage allowed the said petition but ultimately after some days the plaintiff without complying the Courts order filed a petition to exempt him from filing of those documents and the Court allowed the same without assigning any reason. In our consideration in such a suit the prayer of the plaintiff waiving him from the filing of the documents should not have been allowed. The defendants filing written statement have been claiming that they have paid a good amount in the bank in order to adjust the loan but that has not been adjusted by the bank properly rather the said amount of money of the defendants have been transferred in the account of others.
Abu Zafor Mia vs Abdul Motaleb, 3 BLC 412:
Bangladesh vs Abdul Wadud, 25 DLR (SC). 90 and Chairman, Rajuk vs MN Alam and Associates Limited. 57 DLR 626 ref.
Shasti Sarker, Advocate-For the Appellants.
Md Zakir Hossain Mazumder Advocate--For the Respondents.
ANM Bashir Ullah J : This First Appeal at the instance of the defendant-appellants have been directed against the judgment and decree dated 10-10-1994 passed by the Subordinate Judge, 1st Court, Narayanganj in Title Suit No. 112 of 1994 decreeing the suit.
2. The facts relevant for disposal of the appeal, in short, are that the present respondent No. 1 Pubali Bank Limited as plaintiff filed the above suit for realization of Taka 1,84,805,69 from the defendant Nos. I and 2 with a further declaration that the schedule properties are the mortgaged properties with the plaintiff bank and also for a preliminary decree for foreclosing the mortgage stating, inter-alia, that the plaintiff is a nationalized bank who has been carrying banking business and in course of the business the defendant No.2 approached the plaintiff Bank for cash credit limit facility to run his business. The plaintiff accordingly allowed the cash credit limit to the defendant No.2 on condition of payment of interest and other charges. The cash credit limit of the defendant No.2 was enhanced from 25,000 to 40,000 on 15-12-1997. The defendant No. 2 furnished DP note, letter of continuity and mortgaged the land described in schedule-B of the plaint.
3. Though the defendant Nos. 1 and 2 were enjoying the cash credit limit but failed to fulfil the terms and conditions regarding the payment of dues in spite of the repeated demands of the bank. The present outstanding dues as on 30-8-1984 including interest was Taka 1,84,805.69 and the said sum is payable by the defendant Nos. 1 and 2 to the plaintiff. The defendants were served with legal notice on 13-5-1984 requesting them to adjust the outstanding liabilities but they did not respond to the said notice.
4. The defendant Nos. 1 and 2 appearing in the suit filed written statement in order to contest the suit. The defendant Nos. I and 2 also prayed for directing the plaintiff for submitting some papers for their perusal. The Court directed the defendants to file those documents in the Court but the plaintiff did not comply with the said direction of the Court.
5. When the suit was pending for trial, the defendant No.3 also appeared and filed written statements and accordingly issues were framed and the suit was fixed for peremptory hearing and both the parties were seeking adjournment for peremptory hearing but lastly on 9-5-1989 the prayer for adjournment filed by the contesting defendant was rejected and the suit was decreed exparte in preliminary form and later on the said decree is as made final on 10-10-1994.
6. The case of the defendant Nos. 1 and 2 is that the suit is not maintainable, the plaintiff has no cause of action for the suit. The further case of the defendant Nos. l and 2, in short, is that the defendant No. 1 is a proprietorship firm and the defendant No. 2 is the proprietor of he said firm. The defendant Nos. 1 and 2 being financially solvent earned good reputation in the business, as such, the plaintiff bank was pleased to allow cash credit limit up to Taka 1.00,000 to the defendant Nos. 1 and 2 and subsequently, increased the limit up to Taka 3.00,000 and thereafter Taka 4,00,000 and the defendants having been availing the said facility from time to time pledged goods as well as the FDR receipt from time to time.
7. The plaintiff bank on 22-9-1977 illegally transferred Taka 46,365.55 and on 20-10-1977 Taka 70,220.75 from the Cash Credit Account No. 30 of defendant No. 1 and deposited the same with the LAM A/C No. 1 of the defendant No. 1.
8. The defendant No. I on 2-3-1977 deposited DD No. 2799692 dated 19-2-1977 for Taka 25,000 to the Cash Credit account No. 30 but the plaintiff fraudulently credited the said DD to the current account No. 1166 of M/s Sufia Cloth Store very illegally and on 14-3-77 Taka 5,004 was debited from the Cash Credit account No. 30 of the defendant No.1 through DD No. 280012 which has been by one Minton without the knowledge of the defendant No.2.
9. The FDR No. 034531 dated 10-2-1977 amounting to Taka 25,000 was deposited in lien in the CC account No. 30 of the defendant No. I but the plaintiff did not refund the same to the defendant No.2, rather, the said FDR has been encashed by M/s Kohinoor Engineering Works and the said amount has been credited in their current account No. 1285 on 2-3-1977. The said FDR of Tk 25,000 along with its interest should have been credited in the CC account No. 30.
10. The plaintiff also illegally transferred Taka 25,000 from the C.C account No. 30 of defendant No. I on 19-1-1977 and credited the same in the account of M/s Kashmiri Cloth Store. The plaintiff had no authority to debit the said amount from the defendants CC account No. 30 and credit the same to the CC account No. 4 of M/s Kashmiri Cloth Store without the permission of the defendants.
11. The defendants pledged cotton threat and clothes purchased from local mills imported from foreign countries at a worth of Taka 3,37,000 with the bank godown for the period from 25-3-1976 up to 4-10-1977 and took delivery of the goods at a worth of Taka 1,65,000 from time to time but the plaintiff did not give the delivery of remaining goods at a worth of Taka 1,72,000. The plaintiff very illegally demanded the present amount and filed the suit, so the suit is liable to be dismissed with costs. The defendant No. 3 in his written statement stated that he was not a necessary party in the suit, so his name should be expunged from the list of the defendants.
12. In course of trial, the plaintiff examined PW 1 Md Noor Mohammad but did not file any document in support of his claim. The trial Court considering the evidence of the plaintiff decreed the suit by his impugned judgment and decree dated 9-5-1989. The defendant Nos. I and 2 being aggrieved by and dissatisfied with the said judgment and decree along with final decree passed on 10-10-1994 preferred this appeal.
13. Mr Shasti Sarker, the learned Advocate appearing for the defendant-appellants assailing the judgment of the trial Court and supporting the appeal submits that though the defendant Nos. I and 2 had filed written statements in the suit in order to controvert the claim of the plaintiff and though the defendants filed prayer for inspection of some papers but the plaintiff ultimately did not file those in the Court and the trial Court did not pass any effective order directing the plaintiff for filing of those papers and though the plaintiff examined PW 1 in support of his case but in the evidence of PW 1 there is nothing in support of the claim of the plaintiff. PW 1 could not state in the Court as to how the bank is entitled of the claimed amount.
14. He also submits that if a suit is heard ex-parte and the judgment is delivered ex-parte in that occasion also the plaintiff is to prove his case and but in this particular suit the plaintiff could not prove his case but even then the trial Court passed ex-parte judgment and decree in favour of the plaintiff.
15. The learned Advocate also submits that the trial Court did not consider the evidence of PW 1 and other connecting materials of the suit. The trial Court should have considered whether by the evidence adduced by the plaintiff, the claim of the plaintiff has been proved or not. So, the impugned judgment and decree as passed by the trial Court on 9-5- 1989 is not sustainable in the eye of law.
16. The learned Advocate for the appellant also submits that since the defendants had a very strong case that he deposited the amount against the cash credit but that had not been adjusted by the bank so he prays for sending back the suit on remand for a trial afresh.
17. Mr Md Zakir Hossain Majumder, the learned Advocate appearing for the plaintiff respondent No. I submits that the defendant Nos. I and 2 had no attempt and intention to contest in the suit and ultimately the trial Court was bound to reject the adjournment prayer of the defendant Nos. 1 and 2 and thus the trial Court had no any better alternative but to proceed in the suit disposing the same exparte. Since the defendant Nos. 1 and 2 had no any good case they tried to avoid the trial of the suit.
18. The learned Advocate frankly admits that though the defendant Nos. 1 and 2 ultimately did not contest in the suit but the trial Court should have considered the evidence of PW I and the documents of the plaintiff but there is nothing in the record to show that the documents of the plaintiff was considered by the trial Court. The learned Advocate also submits that if the suit is sent back on remand pointing time for the trial both the parties will be in a position to place their cases and documents before the trial Court for a judgment afresh.
19. We have considered the above submission of the learned Advocates of both the parties with profound attention and have gone through the materials on record particularly the plaint, written statements and the impugned judgment.
20. It is fact that the defendant Nos. 1 and 2 filing a very contesting written statement denied the material allegations and the demand of the plaintiff but they ultimately did not contest in the suit. On the date of the ex-parte judgment dated 9-5-1989 the defendant Nos. I and 2 sought adjournment but since the defendants were seeking adjournment on each and every date the trial Court rejected their prayer and took the matter for disposal ex-parte and passed the impugned judgment which runs as follows:
“মামলা চুড়ান্ত শুনানীর জন্য ধার্য্য আছে। বাদী হাজিরা দিয়াছে। বিবাদী পক্ষ এক দরখাস্ত দ্বারা চূড়ান্ত শুনানীর জন্য সময় প্রার্থনা করিয়াছেন। অপর পক্ষ আপত্তি সহ কপি গ্রহণ করিয়াছে। প্রার্থনা নামঞ্জুর করা হইল তৎপর নথিটি এক তরফা শুনানীর জন্য লওয়া হইল। বাদী পক্ষের ১ নং স্বাক্ষী জনাব নুর মোহাম্মদ এর জবানবন্দি গ্রহন করা হইল। বাদী ফিরিস্তি যোগে কাগজপত্র দাখিল করিয়াছে। নথিভূক্ত রাখা হইল। নথি দেখিলাম। কোট ফি সঠিক, আদেশ হইল যে, অত্র মোকদ্দমা বিবাগীগণ বিরুদ্ধে মোকদ্দমার খরচ সহ একতরফা সূত্রে প্রাথমিক ডিক্রি হয়। বিবাগীগণ মোকদ্দমার খরচ এবং আদায় হওয়া পর্যন্ত ১৫% সুদ সহ ১৮৫৮০০ টাকা অত্র ডিক্রির ৩০ দিনের মধ্যে বাদী বরাবরে আদায় করিবে। অন্যথায় বাদী ডিক্রী জারীতে দিয়া সমুদয় অর্থ বিবাদীগণ হইতে আদায় করিতে পারিবে।”
21. From the above judgment it appears that the trial Court passed a very slipshod judgment having only 11 or 12 lines without considering anything. Although there is a statement in the judgment that the plaintiff had filed some papers but those papers were not marked as exhibits and have not been considered in the trial Court. Rule 4(2) of Order 20 of the Code of Civil Procedure (in short, the Code) prescribed the provisions of the judgment of a Civil Court Rule 4(2) of Order 20 of the Code runs as follows:
"Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision."
22. From the above Rule we find that a judgment must contain 4 materials i.e. the case of the plaintiff or the parties as the case maybe the points for determination, the decision thereon and its reasons. But the impugned judgment as have been reproduced in this judgment did not fulfil any of the condition and requirement of the Rule 4 (2) of Order 20 of the Code. In our view, it is no matter whether the judgment was passed ex-parte or on contest in every situation those 4 points as have been prescribed in the Rule must be present.
23. In the case of Abu Zafor Mia vs Abdul Motaleb 3 BLC 412 it hits been held that an ex-parte decree should satisfy the minimum requirement of a judgment as set out in Order XX. rule 4(2) of the Code. In the case of Bangladesh vs Abdul Wadud 25 DLR (SC) 90 it has been held that even a judgment in ex-parte proceeding must show application of mind as to whether the evidence adduced establish the case of the plaintiff. In the case of Chairman, Rajuk vs MN Alam and Associates Limited 57 DLR 626 it has been held that an ex-parte judgment may not be exhaustive as required by Rule 4(2) of Order 20 of the Code but it must be reasoned one.
24. Thus, from the above citation it is found that even in an ex-parte judgment the requirements of the Rule must be set out but from the impugned judgment of the trial Court we find that the trial Court did not apply his judicial mind and did not Consider the case of the plaintiff and did not give any reason for his decision. So the judgment as pronounced by the trial Court in the particular suit is not at all a judgment in the eye of law.
25. Apart from those facts, it also further appears from the record that the defendants filed petition seeking an order for directing the plaintiff for filing some papers to show that the defendants had deposited a good amount but the trial Court though at one stage allowed the said petition but ultimately after some days the plaintiff without complying the Courts order filed a petition to exempt him from filing of those documents and the Court allowed the same without assigning any reason.
26. In our consideration in such a suit the prayer of the plaintiff waiving him from the filing of the documents should not have been allowed. The defendants filing written statement have been claiming that they have paid a good amount in the bank in order to adjust the loan but that has not been adjusted by the bank properly rather the said amount of money of the defendants have been transferred in the account of others.
27. Under the above facts and circumstances since the contesting defendant Nos. I and 2 have a strong case that their deposits have not been adjusted by the bank it will be suitable for both the parties to place their cases before the trial Court record and in view of the above we are also of the opinion that the real ends of justice for both the parties would be best served if the suit is sent back on remand for a trial afresh setting aside the ex-parte judgment and decree, appealed against.
28. In the result, the appeal is allowed. The judgment and decree dated 9-5-1989 and 10-10-1994 are hereby set aside and the suit is sent back on remand for trial afresh. Both the parties will be at liberty to adduce their evidence in the trial Court at the time of trial.
29. Considering all there is no order as to costs.
30. Send down the lower Court's record at once.
Let a copy of this judgment and order be sent to the Court concerned.