(From previous issue) :
8. 'The respondents of the present First Miscellaneous Appeal No. 105 of 2012 without serving any summons or notice or any copy of the said application upon the appellant, (plaintiff of the Artha Rin Suit) the learned Judge, of the Artha Rin Adalat after hearing the defendant only, pleased to allow the Miscellaneous Case on 16-1-2012 by setting aside the exparte decree dated 22-3-2009 and restored the Artha Rin Suit No. 619 of 2008 to its original file and number.
9. Being aggrieved by the aforesaid impugned order No. 10 dated 16-1-2012 of the Adalat, the plaintiffs as appellants preferred this Miscellaneous Appeal before this Court with an application for stay operation of the impugned order dated 16-1-2012 passed by the Artha Rin Adalat No.4, Dhaka, upon which this Court by the order dated 27-2-2012 issued Rule and stayed all further proceedings of Artha Rin Suit No. 619 of 2008 for 3 (three) months and later on the said stay has been extended till disposal of the Rule. The Rule was registered as Civil Rule No. 164 (FM) of 2012.
10. Mr Ahsanul Karim, the learned Advocate appearing with Mr Khairul Alam Choudhury, Mr Md Kabir Iqbal Hossain and Ms. Farzana Khan, learned Advocates on behalf of the appellants at the very outset submits that the Artha Rin Adalat committed serious error in law in allowing the miscellaneous case in particular that the learned Judge of the Artha Rin Adalat failed to consider that no notice and copy of the application under Section 19(2) of the Ain was served upon the plaintiffs appellants before taking up the said application, for disposal.
11. He further submits that the learned Judge, failed to discuss a to how the defendant
respondents came to the finding about the knowledge of the respondents about the exparte order dated 22-3--2009, decree signed on 25-3-2009 passed in Artha Rin Suit No. 619 of 2008 without considering any evidence in respect of limitation. In this respect he has drawn out attention to Annexure-F of the application for stay filed by the appellant, from where it is found that the defendant-respondents were very much aware of the decree passed ex-parte in Artha Rin Suit No. 619 of 2008 as far back as at least in 2009 as it is evident that an application under Section 561A of the Code of Criminal Procedure had been filed before the Hon'ble High Court Division in Criminal Miscellaneous Case No. 19420 of 2009 (wherein the present respondents had annexed the exparte decree dated 22-3-2009 (decree signed on 25-3-2009) as Annexure-E in their application under Section 561A of the Code of Criminal Procedure) which clearly proves that they were well aware of the said ex-parte decree at least in 2009. The respondents claim that they knew nothing about the suit as well as the decree until 1-1-2012 was not correct at all. Therefore, the date of knowledge is clearly more than 30 (thirty) days before filing of the application under Section 19(2) of the Artha Rin Adalat 2003, which is hopelessly barred by special law of limitation laid down in Section 19 of the Artha Rin Adalat Ain, 2003.
12. He next submits that without ascertaining the question of limitation, the learned Judge, having satisfied himself of compliance of only one requirement of deposit of 10% of the decreetal amount erroneously allowed the Miscellaneous Case without satisfying himself that the said application was not indeed filed within 30 days from the date of knowledge of the defendant-respondents and as such the impugned order is not sustainable in the eye of law and required to be set aside.
13. In support of his submissions, he referred 2 (two) decisions, Bangladesh Development Bank Ltd vs Judge Artha Rin Adalat, Jessore reported in 66 DLR 1; and Pubali Bank Ltd vs Bangladesh reported in 66 DLR 317.
14. Furthermore, he submits that the suppression of facts amounts to fraud upon the Court and fraud vitiates everything and he is not entitled to get any relief due to this suppression of facts. Accordingly, he prayed for allowing the Appeal.
15. On the other hand, Mr Md Reza-e-Murshed Kamal, the learned Advocate appearing on behalf of the respondents by filing an affidavit-in-opposition and Counter- Affidavit, contesting the Appea1 and submits that the facts of the case of the respondent opposite parties No.1 to 3 are that they never applied for any loan in the said Bank rather one Mahbubur Rahman a Bank staff misguided the respondent opposite-parties and provoked them to apply for loan.
16. He next submits that the present respondents did not know about the judgment and decree passed by the 4th Artha Rin Adalat, Dhaka in Artha Rin Suit No. 619 of 2008. The respondents came to know firstly from the Criminal Case No. 1089 of 2011 file by the Bank in the Chief Metropolitan Magistrate Court, Dhaka under Section 419/420/465/ 467/471/109 of the Penal Code. Wherein an application dated 1-1-2012 has been filed for' 'shown arrest' the accused petitioner and in that application, the number of Artha Rin Execution Case No. 47 of 2011 has been written. Thereafter after knowing about the said ex-parte' order passed in Artha Rin Suit No. 619 of 2008, the present respondents filed Miscellaneous Case No. 01 of 2012 before the Artha Rin Adalat No.4, Dhaka under Section 1(2) of the Artha Rin Adalat Ain, 2003 for restoration of the original Artha Rin Suit No. 19 of 2008 and the same was allowed and restored the said suit. However the said suit is now stayed by the order of the Hon'ble High Court Division in Civil Rule No. 164 (FM) of 2012 filed by the appellants.
17. He further submits that the Artha Rin Suit No. 619 of 2008 is totally false, manufactured and the defendants No.1 to 3 are not responsible for the outstanding dues as demanded by the plaintiffs bank and is not entitled to get any relief as prayed for and the order of stay passed by the Hon'ble High Court Division in this Civil Rule is liable to be vacated for the ends of justice.
18. At the time of hearing, the learned Advocate for the respondents was confronted with the question of date of knowledge of the exparte decree dated 22-3-2009 in particular the application filed by the respondents under Section 561A of Code of Criminal Procedure i.e. regarding Criminal Miscellaneous Case No. 19420 of 2009, wherein the respondents annexed the certified copy of the judgment of the ex-parte decree dated 22-3-2009 (decree signed on 25-3-2009) that the respondents had knowledge of the ex-parte decree at least in the year of 2009 and this Suppression of fact, amounts to committing fraud upon the Court. In reply the learned Counsel for the respondents finding himself in difficult position to address the point confronted with and could not give any satisfactory reply to this point of Suppression of facts rather admitted it. However, he finally submits that for the ends of justice, the respondents should be given a last chance to contest the suit.
19. We have heard the learned Advocates of both the parties with profound attention, peruse the impugned order of the Adalat and the papers and documents as available on the record and the decisions of our Apex Court very carefully.
20. Now, for the convenience of understanding Section 19 of Artha Rin Adalat Ain, 2003 is quoted below:
“১৯। (১) মামলার শুনানীর জন্য ধার্য কোন তারিখে বিবাদী আদালতে অনুপ¯ি'ত থাকিলে, কিংবা মামলা শুনানীর জন্য গ"হীত হইবার পর ডাকিয়া বিবাদীকে উপ¯ি'ত পাওয়া না গেলে, আদালত মামলা একতরফা সূত্রে নিস্পত্তি করিবে।
(২) কোন মামলা একতরফা সূত্রে ডিক্রী হইলে, বিবাদী উক্ত একতরফা ডিক্রীর তারিখে অথবা উক্ত একতরফা ডিক্রী সম্পর্কে অবগত হইবার ৩০ (ত্রিশ) দিবসের মধ্যে, উপ-ধারা (৩) এর বিধান সাপেক্ষে, উক্ত একতরফা ডিক্রী রদের জন্য দরখাস্ত করিতে পারিবেন।
(৩) উপ-ধারা- (২) এর বিধান অনুযায়ী দরখাস্ত দাখিলের ক্ষেত্রে বিবাদীকে উক্ত দরখাস্ত দাখিলের তারিখের পরবর্তী ১৫ (পনের) দিবসের মধ্যে ডিক্রীকৃত অর্থের ১০% এর সমপরিমাণ টাকা বাদীর দাবীর সেই পরিমাণের জন্য স্বীকৃতিস্বরূপ নগদ সংশ্লিষ্ট আর্থিক প্রতিষ্ঠানে, অথবা জামানতস্বরূপ ব্যাংক ড্রাফট, পে-অডার বা অন্য কোন প্রকার নগদায়নযোগ্য বিনিময়ে দলিল (ঘবমড়ঃরধনষব ওহংঃৎঁসবহঃ) আকারে জামানত হিসাব আদালতে জমাদান করিতে হইবে।
(৪) উপ-ধারা (৩) এর বিধানমতে ডিক্রীকৃত অর্থের ১০% এর সমপরিমান টাকা জমাদানের সংগে সংগে দরখাস্তটি মঞ্জুর হইবে, একতরফা ডিক্রী রদ হইবে এবং মূল মামলা উহার পূর্বের নম্বর ও নথিতে পুনরুজ্জীবিত হইবে, এবং আদালত ঐ মর্মে একটি আদেশ লিপিবদ্ধ করিবে, এবং অতঃপর মামলাটি যে পর্যায়ে একতরফা নিস্পত্তি হইয়াছিল, ঐ পর্যায়ের অব্যবহিত পূর্ববর্তী পর্যায়ে হইতে পরিচালিত হইবে।
(৫) বিবাদী উপ-ধারা (৩) বিধান মতে ডিক্রীকৃত অর্থের ১০% এর সমপরিমাণ টাকা বাদীর সেই পরিমাণের জন্য স্বীকৃতিস্বরূপ নগদ সংশ্লিষ্ট আর্থিক প্রতিষ্ঠান, অথবা জামানতস্বারূপ ব্যাংক ড্রাফট, পে-অর্ডার বা অন্য কোন প্রকার নগদায়নযোগ্য বিনিময়ে দলিল (ঘবমড়ঃরধনষব ওহংঃৎঁসবহঃ ) আকারে জামানত হিসাব আদালতে জমাদান করিতে ব্যর্থ হইলে, উক্ত দরখাস্তটি উক্ত দরখাস্তটি সরাসরি খারিজ হইবে, এবং আদালত ঐ মর্মে একটি আদেশ লিপিবদ্ধ করিবে।
(৬) অর্থ ঋণ আদালতে বিচারাধীন কোন মামলা, বাদীর অনুপ¯ি'তির বা ব্যর্থতা হেতু খারিজ করা যাইবে না, এবং এইরূপ ক্ষেত্রে আদালত, নথিতে উপ¯'াপিত কাগজাদি পরীক্ষা করিয়া গুণাগুণ বিশ্লেষণে মামলা নিষ্পত্তি করিবে।”
21. From the combined reading of the above provisions, it appears that Artha Rin Adalat Ain, 2003 gives a clear understanding that right after passing of the ex-parte decree or from the (date of knowledge of the ex-parte decree if within 30 days as per sub-section (3) of section 19 by depositing 10% of the decreetal amount an application has been filed for restoration of the suit after setting -aside the ex-parte decree, the suit will be automatically restored in terms of Section 19(4) of the Ain to its original file and number.
22. Further, two aspects have been made clear in the said provisions of law that an application for restoration of the suit after setting-aside ex-parte decree may be made within 30 days right after passing of the ex-parte decree or from the date of knowledge of the ex-parte decree. The words used in sub-section 2 of section 19 of Ain “একতরফা ডিক্রির তারিখের অথবা উক্ত একতরফা ডিক্রি সম্পর্কে অবগত হইবার ৩০ দিবসের মধ্যে, উপ-ধারা (৩) এর বিধান সাপেক্ষে উক্ত এক তরফা ডিক্রী রদের জন্য দরখাস্ত করিতে পারিবেন” clearly indicates two different situations for filing an application for restoration.
23. Firstly, right after passing of the ex-parte decree and secondly, from the date of knowledge of the ex-parte decree as the case may be.
24. Now, the question comes to our mind that whether by implication of sub-section 4 of Section 19 of the Ain, the suit will be automatically restored in both the situations.
25. It is clear from the plain reading of the above provisions of law that right after passing of the ex-parte decree, Section 19(4) of the Ain comes into play i.e. the application if so filed within 30 days shall be automatically restored.
26. However, it does not apply in a case where it has been contended by the defendant that having knowledge of the ex-parte decree the application for restoration has been filed.
27. Now, it is our view that when the question of knowledge is the basis for deciding an application for restoration that should be decided after taking evidence and hearing both the parties.
28. Furthermore, it has been decided in the case of Pubali Bank Ltd. vs Bangladesh reported in 66 DLR 317 that
"section 19(2) of the Ain does not expressly prescribe for issuance of any notice upon the decree-holder to show cause in determining the correctness of the date of knowledge but it is the established principle of law that even when a statute is silent, notice has to be given if any person is sought to be affected in his right, interest, " property or character".
29. Similar view has been expressed in the Indian Jurisdiction in the Case of Maneka Gandhi vs Union of India reported in AIR 1978 (SC) 597.
30. It is our considered view that after pronouncement of ex-parte decree a legal right has been accrued in favour of the plaint of (decree-holder) and allowing of an application for setting aside the said decree, is curtailing the accrued right of the decree-holder.
31. In such a situation, our opinion is that the plaintiff has got a right to be informed about hearing of the said application by proper notice and the Adalat after hearing both the arties shall decide the issue as to correctness of the defendants alleged date of knowledge in order to satisfy itself towards the compliance of Section 19(2) of the Ain. In the instant case the Adalat did not comply with the said procedure of law.
32. Now, in the present case the ex-parte judgment and decree was passed on 22-3-2009 and as per Section 19(2) of the Ain requires the defendant to file an application for setting aside the ex-parte decree either within 30 days from the date of passing of the said decree or within 30 days from the date of knowledge, about the said ex-parte decree.
33. Admittedly, it is found from the materials available on record that the respondents were very much aware of the exparte decree dated 22-3-2009 in Artha Rin Suit No. 619 of 2008 as far back as at least in the year 2009 contrary to their claim of date of knowledge that they knew nothing about the suit as well as the decree until 1-1-2012, which is abundantly clear that it is suppression of fact and amounts to fraud upon the court. In the present case, the defendant filed the Miscellaneous Case No.1 of 2012 on 11-1-2012 which is dearly beyond 30 days of passing the ex-parte decree dated 22-3-2009.
34. It appears from the impugned order dated 16-1-2012 that the learned Judge of the Adalat, only consider one requirement of Section 19 of the Ain of deposing of 10% 'decreetal amount by the defendant' but did not at all consider anything regarding the question of limitation i.e. whether the case is filed within 30 days from the date of knowledge.
35. Furthermore, as per section 3 of the Limitation Act, 1908, which confers a duty upon the Court to see as to whether the suit/application is filed within time or not even if the issue of limitation has not been pressed, the court is legally bound to see and decide such issue in disposing of the matter before it.
36. Now, the law is well settled that under a Special law where a time limit has been given to file an appeal, the provision of Section 5 of limitation Act will not apply and the Artha Rin Adalat Ain 2003, being a special law, the provisions of Section 5 of the limitation Act will not apply and therefore the application for restoration shall be rejected outright.
37. Further, 'he who comes into equity must come with clean hands'. It operates to prevent any affirmative recovery for the person with 'unclean hands' no matters how unfairly, the persons adversary has treated him or her. The maxim is the basis of the clean hands doctrine. Its purpose is to protect the integrity of the Court.
38. In the present facts and circumstances of the case, we hold that the petitioners (respondents herein) of the Miscellaneous Case No. 1 of 2012 have come up with unclean hands.
39. In the Pase of Zillur Rahman (Md) vs Md Abdul Quiyum Sarker reported in 18 BLC (AD) 25i it has been that
"Fraud vitiates everything. The plaintiff successes to prove that fraud was practised upon him by the defendant in executing and registering the impugned deed it vitiated the entire transaction."
40. Further it has been held in the case of Janata Insurance Company Ltd vs Commissioner, Customs, Excise and VAT, Dhaka reported in 18 BLC 562 that "The suppression of fact is a heinous, detestable act, which cuts the very root of any claim, made in any discipline, far less to say before Constitutional Court. Therefore, caution goes without any controversy that suppression of fact vitiates everything."
41. It is to be borne in mind that fraud or suppression of fact and fair play cannot dwell together, one must exclude the other. The Court stands for fair play only and to get equitable relief the respondent must approach the Court with clean hands.
42. It is settled legal proposition, decided in the case of United India Insurance Co. Ltd vs. Rajendra Singh AIR 2000 SC 1165, wherein the Hon'ble Court observed that "Fraud and Justice never dwell together" and it is a pristine maxim which has never lost its temper over all these centuries.
43. It is our considered view that an act of fraud on Court is always viewed seriously. In judicial proceeding,', once fraud is proved, all advantages gained by playing fraud can be taken away. Suppression of any material fact/document amounts to a fraud upon the court.
44. When facts are intentionally misrepresented or where a false statement is made intentionally, with the knowledge that it is false, with a view to deceive the other party, it is known as fraud. In the present case, it is clear that the respondents had knowledge of the ex-parte decree at least in the year of 2009, which is clearly suppression of facts and amounts to committing fraud upon the Court.
45. Further in the English Jurisdiction, in general, fraud has been defined as 'Fraud includes the suppression of the truth as well as the presentation of false information.' Any attempt to deceive is considered fraud, and when the attempt to deceive occurs in a judicial proceeding, it is "fraud upon the Court."
46. From the above discussions, it is crystal clear that the Adalat has committed wrong in passing the impugned order dated 16-1-2012 without deciding the question of limitation, which is a non speaking order and erroneous and should be interfered with as fraud has been committed upon the court. Thus we find merit in the appeal.
47. In the result, the appeal is allowed without any order as to cost. The impugned order No. 10 dated 16-1-2012 passed by the learned Judge, Artha Ain Adalat, 4th Court, Dhaka in Miscellaneous Case No. 1 of 2012 arising out of Artha Rin Suit No. 619 of 2008 is hereby set aside. Consequently, the connected Civil Rule No. 164 (FM) of 2012 is made absolute.