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Code of Civil Procedure

Abuse of the Process of the Appellate Court Should Be Prevented

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10th-Aug-2019       
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(From previous issue) :
He also submits that the plaintiff has challenged the said trust deed by filing Title Suit No. 1027 of 2017 before the court of 1st Joint District Judge, Dhaka, and also filed an application for temporary injunction and that an order dated 5-2-2018 was passed by the trial court to maintain status-quo, after hearing both the parties, which was a very fair order and was not harmful to either of the parties. Rather, it would have ensured rights and interest of each flat owners. Moreover, he proceeds on, such an order was indispensable in view of the facts that some outsider has harassed, threatening the plaintiff on 10-4-2018, as has been reported in the "Daily Prothom Alo" dated 11-4-2018 (Annexure-G). He also submits that, the defendants have already filed written statements in the suit and the suit is ready for hearing and the trial court could have disposed of the suit within soonest possible time the urgency of this matter being agitated before the trial court. But, with malafide intention to delay the disposal of the suit, the defendants have filed Miscellaneous Appeal No. 47 of 2018, which was wholly unnecessary and unjustified in the facts and circumstances of this case and this interlocutory proceeding clearly amounts to abuse of the process of the court and the same is also liable to be quashed. He next submits that, without considering the facts and circumstances of the case, the learned District Judge, on the very date of admission of appeal, has also passed the order on 12-3-2018, whereby he has stayed the operation of the trial court's order of status-quo dated 5-2-2018, without at all assigning any reason. He continues that, from a mere perusal of the order dated 12-3-2018, it will be evident that the said order is a non-speaking one and has been passed, as if a matter of routine, upon mere filing of an appeal. This order of stay dated 12-3-2018 has caused serious prejudice so far as the right and interest of the plaintiff-petitioner is concerned and so far as the peace and tranquility in a residential building is concerned. He further submits that, in passing the order of stay dated 12-3-2018, the appellate court did not consider as to whether the plaintiff had a prima-facie case or the balance of convenience and inconvenience or whether any irreparable loss will be caused to the plaintiff-petitioner. Therefore, he submits, the Appellate Court has erred in law in passing the impugned order and that has resulted in error of decision and has also caused serious prejudice to right and interest of the plaintiff. He prays for making the Rule absolute.
8. Learned Advocates Mr Nazmul Huda, along with Mr Ashanur Rahman and Mr Mohammad Iqbal Akhonji, have appeared on behalf of the Opposite party No.2. Mr Huda submits that the impugned order dated 12-3-2018, passed in Miscellaneous Appeal No. 47 of 2018, was just and proper because the plaintiff was dominating the "Casablanca Apartment Owners Society" as the original allottee of the plot. He further submits that the plaintiff was unreasonably interfering with the decision making of the association and also in the management of the common affairs of the flat owners. He then submits that the impugned order dated 12-3-2018 was passed staying the status-quo order dated 5-2-2018 "till the next date" fixed in the said appeal, while as on the date of hearing of this Rule, the next date has already been expired. Hence, he would stress that, the impugned order has become inoperative and, as a result, this Rule has become anfractuous. He also submits that this Rule may be disposed of by maintaining the order of stay, given by the High Court Division, so that the Miscellaneous Appeal pending before the learned District Judge, Dhaka, can be disposed of on merit. Therefore, this Rule has no merit and the same is liable to be discharged, he sums up.
9.  I have heard the learned Advocate for both sides, perused the application, the affidavit-in-opposition, the affidavit in reply filed by the plaintiff-petitioner as well as the counter affidavit, the application for vacating the order of stay, the documents annexed to the petition and to the affidavits filed by both sides.
10. Facts leading to filing of this application has been narrated hereinbefore; hence, need not be repeated.
11. It is not disputed that the plaintiff-respondent-petitioner is the original allottee of RAJUK Plot No. 15D, at Road No. 93, Gulshan-2, Dhaka. It is also not disputed that the plaintiff had handed over the said plot, pursuant to an agreement, to a developer company named Advanced Development and Technology Limited for construction of a 6 (six) storied building, consisting of 6 (six) flats. It is also admitted that a 6 storied building has been constructed upon the said plot, as has been described in schedule B to the plaint, and the name of the apartment has been given "Casablanca". It is also not altercated that the plaintiff is the owner of 2 flats, out of total 6 (six) flats, along with proportionate undivided and un-demarcated shares in the said plot (comprising 6 katha 72 square feet). It is also on record that the defendant Nos. 1-3 are owners of 3 flats along with their proportionate undivided and un-demarcated shares in the said plot. It is not denied that, an association has been formed in the name and style "Casablanca Apartment Owners Society," in which the plaintiff as well as other flat owners (including the defendants) are members and the said society has been formed to manage the common affairs, common property, common space and facilities of all the flat owners by appointing staffs, guards etc., for which the owners shall contribute monthly subscriptions to meet the overhead cost, common utility bills etc. I also find that, the impugned Trust Deed has been created by only 3 flat owners, who are defendant Nos. 1-3 in the suit while the plaintiff, being two flat owner, is not a party to the said deed.
12. A news item, published in the "Daily Prothom Alo" dated 11-4-2018 (Annexure-G), reporting about the misbehaviour done to the plaintiff-petitioner, having been considered in the light of the facts and circumstances, recorded above, I find that the order dated 5-2-2018, passed by the trial court after hearing both sides, were passed upon application of judicial mind and proper appreciation of the facts and principles guiding the exercise of discretion in passing an interim order. The said order dated 5-2-2018 was a very fair and proper one in the facts and circumstances of this case and is justified by the materials on record. I also find that the trial court, in passing the order of status-quo dated 5-12-2018, has rightly considered the issues of the prima-facie case, balance of convenience and inconvenience and if such an order would have caused prejudice to anybody.
13. Then, by the impugned order dated 12-3-2018, passed by the learned District Judge, Dhaka, in Miscellaneous Appeal No. 47 of 2018, preferred by the defendant Nos. 2 and 3 (not by all the defendants), the said appeal was admitted and in the said order of admission, the appellate court has simply written that, "the operation of the impugned order dated 5-2-2018 be stayed till next date", which is apparently a non-speaking order and has been passed in a manner as if preferring an appeal will automatically confer a right to obtain an order of stay or that passing of an order of 'stay' is a matter of routine only an appeal is required to be preferred. The Appellate Court, in passing the order dated 12-3-2018, has apparently acted mechanically instead of judiciously and it has failed to take into consideration that the result of such an order will affect the prima-facie right, interest and safety of the plaintiff and would delay the disposal of the suit, pending before the trial Court, in which written statements has already been filed. Besides, the learned District Judge, Dhaka, while passing the impugned order appears to have lost sight of his obligation, cast upon by series of judicial decisions, to take into consideration the prima-facie case, the balance of convenience and inconvenience as well as to consider whether the parties would suffer irreparable loss while he was considering a prayer for any interim order. Passing the impugned order of stay by the appellate court should not have been taken so lightly or as if a matter of exercising unfettered discretion or an act of mere pleasure.
14. No doubt, a court of appeal is legally authorized to pass such an order, but such power or discretion is to be exercised having regard to the line of decisions of the Superior Court which are of binding character as per Article 111 of the Constitution.
15. In this fact and circumstances of this case, I am of the opinion that, the impugned order dated 12-3-2018 in Miscellaneous Appeal No. 47 of 2018 is a deviation from the series of decisions and it appears to be an outcome of an exercise done by a hasty mind.
16. I have also considered the submissions of the learned Advocate for the OP No.1 (who alone is contesting) that operation of the impugned order has already been expired and the Rule has become infractuous. Due regard having been paid to this submissions, I am of the opinion that, legality of an order should be judged in the light of the facts and circumstances that were prevailing on the date of passing the impugned order. In the instant case, the fact that the operation of the impugned order has expired cannot be and should not be taken into consideration because this will indirectly give validity to an order which was neither proper, nor just, in the facts and circumstances of this case.     
17. On query, the learned Advocate for the parties have replied that the appellate court has not stayed the proceedings of Title Suit No. 1027 of 2017, but further proceedings has been kept in abeyance by the trial court, for the reason better known to the trial court. Mere pendency of appeal shall not amount to stay for which an specific order is required.
18. Be that as it may, I am of the opinion that, this interlocutory proceeding initiated under Order 43 of the Code of Civil Procedure, by filing Miscellaneous Appeal No. 47 of 2018, in the facts and circumstances of this case, amounts to dear abuse of the process of the court and it is necessary that the abuse of the process of the appellate court should be prevented. Therefore, the proceedings of the Miscellaneous Appeal No. 47 of 2018 is liable to be quashed in exercise of this Court's inherent power conferred by Section 151 of the Code of Civil Procedure, 1908, read with this court's constitutional power of supervision (both administrative and judicia1) as conferred by Article 109 of the Constitution.
20. In the light of the deliberation, recorded above, I hold that this Rule has merit and the interlocutory proceedings initiated under Order 43 of the Code of Civil Procedure, 1908, registered as Miscellaneous Appeal No. 47 of 2018, should be quashed.
Order
1.    In the result, the Rule is made absolute.
II.     The impugned judgment and order dated 12-3-2018, passed by the learned District Judge, Dhaka, in Miscellaneous Appeal No. 47 of 2018 is hereby set aside and the order dated 5-2-2018, passed by the learned 1st Joint District Judge, Dhaka in Title Suit No. 1027 of 2017 is hereby upheld.
III. The trial court is directed to hear the suit at the earliest opportunity on priority basis.
IV. The proceedings of Miscellaneous Appeal No. 47 of 2018 is hereby quashed.
V.    As an interim arrangement, the Casablanca Apartment Owners Society shall manage and look into the common affairs of the apartment and all decisions shall be taken by the Association on simple majority basis and the meetings of the association shall be presided over, till the disposal of the suit, by the plaintiff as its Chairman. The flat owners shall regularly pay the monthly subscription at the prevailing rate and as per prevailing practice, till final disposal of the suit. Similarly, the bank account of the society shall be operated, till disposal of the suit, under the joint signature of the Chairman and of any other flat owner as may be decided in the meeting of the society, unless there is any other arrangement to the contrary.
VI. The order of stay granted earlier by this Court is hereby vacated.     
VII. No costs.
VIII. Let a copy of this judgment and order be sent to the concerned Courts at once.
(Concluded)

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