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Petitioner: DR. MD. MOBARAK ALI VS Respondent: PROP. MD. ALLARAKHA
P L D 1971 Dacca 293
P L D 1971 Dacca 293
Before A. K. M. Nurul Islam, J
DR. MD. MOBARAK ALI‑petitioner
Versus
PROP. MD. ALLARAKHA‑--Opposite‑-Party
Appeal from Appellate Decree No. 23 and Civil Revision Case No. 1382 of 1970, decided on 18th August 1970.
(a) Civil Procedure Code (V of 1908),
Ss. 100 & 115 read with S. 149‑Appeal‑Revision‑High Court, in exercising discretion for ends of justice, can order conversion of memorandum of appeal to a revisional application‑--Consequent difficulties as regards point of limitation and payment or additional court‑fee‑Can be obviated in pursuance of provision of S. 149.
Ram Taran and others v. Sukumari Debi 5 D L R 351; Jnanadasundari Nandi v. Narayan Chandra Sardar and others 7 D L R 627, Argun Das v. Gunendra Nath Basu Mallick 20 C L J 341; Smt. Guru Dasi v. Sarbananda Mahaldar and others P L D 1961 Dacca 243 and Province of East Pakistan v. Abdul Mannan and others 21 D L R 478 distinguished.
Venugopal Pillal and others v. Thirugnanavalli Amall A I R 1940 Mad. 934; S. M. A. Khuddus v. Sawdagar Mohammad Hussain A I R 1926 Mad. 1015; Faizullah Khan and another v. Mauladad Khan 33 C W N 781 (P C); Mahasay Genesh Prasad Ray and another v. Narendra Sen and others A I R 1953 S C 431 and The Land Acquisition Collector, Rawalpindi v. Lieut. General Wajid Ali Khan Burki P L D 1960 Lab. 469 ref.
(b) Civil Procedure Code (V of 1908),
O. XXXIX‑Injunction--- Prejudging merits of suit‑No Court allowed to take recourse to, while considering interlocutory matter.
(c) Civil Procedure Code (V of 1908),
O. XXXIX, r. 2(3) Provision of r. 2(3), whether punitive in effect and to be construed strictly.
State of Bihar v. Rani Sonabati Kumari A I R 1961 S C 221 ref.
(d) Civil Procedure Code (V of 1908),
O. XXXIX, r. 2(3)‑Ad interim order‑Violation of‑--No finding by Courts below that on receipt of notice of order for maintenance of status quo, defendant made construction in violation of terms thereof‑Order of trial Court attaching property in dispute‑Cannot be maintained in accordance with law.
(e) Civil Procedure Code (V of 1908),
O. V, rr. 15 & 17 ---Service of summons by hanging on conspicuous part of defendant's residence without making diligent enquiry as to whereabouts of defendant‑Held, cannot be regarded as due service under r. 17.
Dhararn Chand Gain v. Hanak Sarkar A I R 1921 Cal. 638; Jhabarmull Dudhwalla v. Bhagatram Serowgie 51 C W N 189; Tota v. Badri Pershad A I R 1930 Lah. 192; Siraj Din v. Mst. Iqbal Begum P L D 1968 Lah. 639; The District Board of Tippera v. Sarafat Ali and others 3 D L R 317; Ibrahim v. Surendra Kumar Dhar 9 D L R 16 and Matiar Rahman v. Haji Md. Ekramullah P L D 1961 Dacca 781 ref.
(f) Justice and equity‑-
Rights and duties of a citizen‑Co existent, so as to have a balanced and orderly society and for better administration in country.
It is the preliminary point of jurisprudence that rights and duties of a citizen are co‑existent so as to have a balanced and orderly society and for the better administration in a country. In exercising one's right he has the corresponding duty to respect the right of others also and the consequent duty shall have to be taken notice of by the parties involved in any matter. In common parlance it has been said that one should live and let others live.
Mohammad Nurul Haq with Mohammad Easin for Appellant.
M. A. Khaled for Respondent.
Dates of hearing: 10th, 11th and 12th August 1.970.
JUDGMENT
An application under Order XXXIX, rule 2(3) of the Code of Civil Procedure alleging violation of the ad interim order of maintaining status quo passed in title Suit No. 144 of 1968, of the 6th Court of the Munsif. Dacca, was filed by Professor Mohammad Allarakha plaintiff of the said suit, which has eventually given rise to the second miscellaneous appeal in this Court.
The plaintiff filed the said suit for permanent and mandatory injunction against the defendant‑appellant Dr. Md. Mobarak Ali and in the said suit he also made a prayer for temporary injunction restraining the defendant from further construction of his building till the disposal of the said suit. On the said application for temporary injunction, the learned Munsif issued notice upon the defendant to show cause why the temporary injunction would not be granted against him as prayed for and also issued a writ for maintaining status quo till the bearing of the injunction matter. Thereafter the plaintiff filed the aforementioned application under Order XXXIX, rule 2(3) of the Code of Civil Procedure, alleging inter alia that the notice and the writ issued by the learned Munsif was served upon the defendant on 29‑7‑68, but the said defendant violated the Court's order passed on 29‑7‑68 by continuing with further construction of his building and that an Advocate Commissioner appointed by the Court in the meantime held a local enquiry after going on the spot on 30‑7‑68, for the said purpose. It has been further alleged by the plaintiff that the defendant closed the ventilation of the south‑eastern wall of the petitioner and also opened two windows in the walls on the north -eastern side of his newly constructed first floor and second floor fusing invasion to the privacy of the plaintiff's rooms in the first floor and second floor and that the plaintiff along with some local gentlemen requested the defendant to obey the mandates of the Court in preserving the status quo but he did not pay any heed to the said request and violated the order of the Court with impunity and as such his property was liable for attachment and he was liable to be put into Civil detention.
The defendant of the said suit, namely Dr. Md. Mobarak Ali filed a written‑objection and denied the allegations made against him in the said application of the plaintiff under Order XXXIX, rule 2(3) of the Code of Civil Procedure. His case is that the plaintiff with a mala fide intention created unne cessary troubles for him and that he himself made construction of a wall illegally in violation of the provisions of the Building Construction Act and thereby blocked light, air, and ventilation which was available to his bed‑room on the northern side of the first floor, and also encroached upon some portion of his premises by erecting wall on the northern side of his bedroom. He has also alleged that the suit is concocted, false and mala fide which is well evident from the fact that he also started a criminal case in the Court of the Sub‑Divisional Officer against him.
The learned Munsif after considering the evidence adduced by both the parties arrived at the finding that the defendant violated the order of injunction passed against him and accord ingly he allowed the application and attached the property of the said defendant by his judgment and order dated the 17th November 1969.
An appeal was preferred against the said decision of the learned Munsif by the defendant which was heard by the learned Subordinate Judge, 4th Court, Dacca, in Miscellaneous Appeal No. 401 of 1969. The learned Subordinate Judge by his judgment and order dated the 9th February 1970, upheld the decision of the learned Munsif which was passed in Miscellaneous Case No. 115 of 1968 on 17‑11‑69. The defendant Dr. Mobarak Ali having felt aggrieved by the said decision of the Courts below preferred the instant second miscellaneous to this Court.
I may here pause for a moment and mention that the second miscellaneous appeal filed by the defendant is not maintainable in view of the fact that although under the provision of Order XLIII, rule 1 read with section 104 of the Code of Civil Procedure an appeal was maintainable before the learned Subordinate Judge but no second appeal lies from any order passed in appeal under the provision of Order XLIII read with section 104 of the Code and the bar to such a second appeal has been specifically provided in subsection (2) of section 105 of the Code of Civil Procedure. I am constrained to observe that unfortunately no preliminary objection as to the maintainability of this second miscellaneous appeal was raised by the learned Advocate appearing on behalf of the respondent when the said appeal was taken up for hearing. When I have drawn the attention of the learned Advocate for the appellant to this aspect of the case, he expressed his regret and prayed for permission to file an application with a prayer for converting the memorandum of appeal to a revisional application on payment of deficit court‑fees. I have allowed the learned Advocate to file such an application with a copy to be served on the learned Advocate for the respondent. Thereafter I heard the learned Advocates for both the parties on the question of converting the second miscellaneous appeal to a revisional application under section 115 of the Code of Civil Procedure on acceptance of the deficit court‑fees filed along with the said application.
Mr. Md. Nurul Haq, the learned Advocate in support of the said application submits that for the ends of justice the prayer for converting the memorandum of appeal to a revisional application may be allowed, otherwise, the petitioner will suffer irreparable loss and substantial injury. It has been stated in the said application and has also been submitted by the learned Advocate for the petitioner that due to inadvertence a second miscellaneous appeal was filed and there was no laches on the part of the petitioner in doing so. An act of inadvertence has been regretted by the learned Advocate for the petitioner with positive statement to that effect in the application itself. Moreover, the learned Advocate in support of his contention that for ends of justice in the facts and circumstances of a case this Court has discretion to convert an incompetent second appeal like this to a revision he has referred me to several decisions.
In the case of Ram Taran and others v. Sukumari Debi (5 D L R 351) Guha, J., held that the memorandum of an incompetent second appeal can be treated as an application under section 115 of the Code of Civil Procedure by the High Court and disposed of as such. In the said case, of course, there was no question of payment of additional court‑fees. Next case relied on the point is jnanadasundari Nandi v. Narayan Chandra Sardar and others (7 D L R 627). In the said case a revisional application under section 115 of Code was converted into a memorandum of second appeal as there was no question of court‑fees and limitation. In the said case which related to a question under section 47 of the Code relying on the decision in the case of Argun Das v. Gunendra Nath Basu Mallick (20 C L J 341), where their Lordships Mookerjee and Beacheroft, JJ. treated the petition in which a rule was issued as a memorandum of appeal where there was no question of limitation or court‑fees, Chakraborty, J. treated the revisional application before him in the said case as a memorandum of appeal.
Reference may also be made to the decision in the case of Smt. Guru Dasi v. Sarbananda Mahaldar and others (P L D 1961 Dacca 243) on this point. In the said case Mr. Justice Hamoodur Rahman (as his Lordship then was) in dealing with a similar point observed to the following effect:‑
"The learned Advocate appearing to oppose this appli cation has taken a preliminary objection that an order refusing restoration under Order XLI, rule 19, is an appealable order, and no revision lies. This objection is no doubt sound. But the learned Advocate for the petitioner requests me in the special circumstances of this case to treat this application as a memorandum of appeal and to deal with it as an appeal. The court‑fees actually paid are in excess of the court‑fees that would have been required to be paid in the case of an appeal. There is abundant authority for the proposition that in the ends of justice this Court has the power to treat a Memorandum of appeal as an application for revision and vice versa an application of revision as an appeal in suitable cases."
Similar view was also taken in a recent decision by a Division Bench of this Court in the case of Province of East Pakistan v. Abdul Mannan and others (21 D L R 478). In delivering the judgment in the said case A. S. Chowdhry. J. relying on the aforesaid decision of his Lordship Mr. Justice Hamoodur Rahman (as his Lordship then was) converted the memorandum of appeal to an application under section 115 of the Code of Civil Procedure In this case, of course, it has not been observed that such an act of conversion would be subject to the question of payment of additional court‑fees and limitation. I have called for the original appeal file of that case and I find in the said case that an appeal was filed on payment of court‑fees of Rs. 20 and as such there was no question of paying deficit court‑fees in said case. However, their Lordships while converting the memorandum of appeal to a revisional application did not consider the said aspect as to payment of court‑fees and limitation, nor it was argued at the Bar on the said aspect of the case. The point as to payment of deficit court‑fees being involved in the instant case before me. M. A. Khaled the learned Advocate for the opposite‑party submits that no such order for conversion can be passed by this Court if it is found that additional court‑fees has to be paid and in that case the question of limitation would arise. To my mind it appears that this Court in exercising its discretion for ends of justice can pass an order of conversion and in the facts and circumstances of the instant case there should not be any difficulty in doing so if there is a question of paying additional court‑fees and the point of limitation in consequence thereof. In my view the question of payment of court‑fees really is a matter with which Government is more concerned and only for this reason the Court should not be debarred from adjudi cating upon the rights and liabilities of the parties in a given case. Moreover, I am of the view that those difficulties can be obviated in pursuance of the provision as made in section 149 of the Code of Civil Procedure which runs as follows:
"Power to make up deficiency of court‑fees. Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court‑fees has not been paid, the Court may, in its discretion, at any stage allow the person by whom such fee is payable, to pay the whole or part as the case may be, of such court‑fee and upon such payment the document, in respect of which such fee is payable shall have the same force, and effect as if such fee has been paid in the first instance."
It is clear from the said provision that the Court has a discretion to allow to pay court‑fees at any stage and that payment will be deemed to have been made in the first instance meaning thereby that there cannot be any question of limitation if court‑fees are allowed to be paid by the Court in its discretion. In none of the aforesaid cases this aspect of the case with reference to the provision of section 149 of the Code of Civil Procedure was adjudged. In this connection I may also refer to the decision in the case of Venugopal Pillai and others v. Thirugnanavalli Amall (A I R 1940 Mad. 934). In that case Pandrang Row and Abdur Rahman, JJ. held with reference to the provision of section 149 of the Code of Civil Procedure that even where the Court improperly and without sufficient cause grants time for payment of court‑fee after the plaint has been presented, the effect of the grant of such time is that the plaint takes effect as if it has been presented along with the full court‑fee on the date of its first presentation and no question of limitation can arise where the plaint as originally presented is within time. Their Lordships in arriving at the said decision relied on the case reported in A I R 1926 Mad. 1015. I may also refer to the decision in the case of Faizullh Khan and another v. Mouladad Khan (33 C W N 781 (P C)). In the said case their Lordships of the Privy Council hold that under section 149 of the Civil Procedure Code the Court has a discretion to allow a person who has not paid any part or even the whole of any fee payable by him, to pay at any stage and on such payment the document in respect of which the fee is payable operates as if the fee had been paid in the first instance and that when an appeal is presented within time but with insufficient court‑fee, the irregularity, is validated by additional payment and the memo randum stands good from its date. Next decision relied on by the learned Advocate on the point is the case of Mahasay Ganesh Prasad Ray and another v. Narendra Sen and others (A I R 1953 S C 431). In the said case the Supreme Court of India held that the question of payment of court‑fees is primarily a matter between the Government and the person concerned and therefore where the High Court in the exercise of its discretion allows the appellant to amend his memorandum of appeal and grants time for payment of deficit court‑fees under section 149, the other party cannot attack the order on ground that it takes away his valuable right to plead the bar of limitation. I do not find any difficulty in applying the said principle of law as enunciated in the cases referred to above, having regard to the provisions of section 149 of the Code of Civil Procedure in adjudicating upon the point which has cropped up before me in converting the memorandum of appeal to a revisional application allowing the petitioner to pay the deficit court‑fees. Moreover, I am also of the view that this principle of law can be more conveniently applied in a case like the present one before me for the reason that the High Court can suo motu exercise its jurisdiction under section 115 of the Code of Civil Procedure to set at right a decision of the Subordinate Court if the same was covered by the provision as laid down in any of the subsection of section 115 of the Code.
Similar point was also taken into consideration by the Lahore High Court in the case of The Land Acquisition Collector, Rawalpindi v. Lieut. General Wajid Ali Khan Burki (P L D 1960 Lah. 469). In the said case Shabir Ahmad, J., held that if a petition for revision has been filed when an appeal should have been filed or vice versa, is not sufficient for depriving a party of a remedy which has been sought under a wrong nomenclature and that the object of the petitioner is to have the impugned order examined by the High Court, Shabir Ahmad, J., observed:
It appears to me that the fact that a petition for revision has been filed when an appeal should have been filed or vice versa is not sufficient for depriving a party of a remedy which has been sought under a wrong nomenclature. The object of the petitioner in the present case was to have the impugned order examined by this Court and the circumstances that the petition was described as a petition for revision and not as a memorandum of appeal cannot, on any reasonable ground, be considered fatal for the case of the petitioner. It is open to this Court to treat a petition for revision as a petition of appeal and a petition of appeal as a petition for revision and I direct that the petition in the present case should be treated as a memorandum of appeal."
In the said case Shabir Ahmad, J., also held that section 149 of the Code of Civil Procedure gives a very wide power to Courts to allow a party to make up the deficiency in court‑fee on a docu ment and directs that when the deficiency is in court‑fee has been made up under the orders of the Court, the document shall be deemed to have been properly stamped with court‑fee from the date on which it was put in Court and that the discretion under section 149 of the Code of Civil Procedure to extend the time is not circumscribed by the statute but it should be exercised in proper cases only, and that whether or not case is one which calls for exercise of powers under section 149 of the Code of Civil Procedure must necessarily depend on the facts of each case and that cases can arise where a party has purposely paid deficient court‑fee to gain an advantage and that it is obvious that the Court will not exercise its power under section 149 of the Code of Civil Procedure in favour of such a party. The decision of the Lahore High Court also fully applies to the facts and circumstances of the instant case before me and supports the view which I have taken above. I have therefore, allowed the application of the petitioner and treated the memorandum of second miscellaneous appeal as a revisional application and accepted the deficit court‑fee filed by the petitioner along with the said application.
Now I proceed to consider the merits of the case treating the same as involved in a revisional application to which I have converted the memorandum of second Miscellaneous appeal.
Mr. Md. Nurul Haq the learned Advocate appearing on behalf of the defendant‑petitioner has taken me through the judgment of both the Courts below and I have heard the arguments of the learned Advocate appearing for both the parties at length. The learned Advocate for the petitioner has urged before me mainly the two points, firstly that the service of notice by hanging, as it appears from the report of the process server is not in accordance with law and the Courts below committed error in law in holding that the defendant had knowledge of the order which was alleged to have been violated by him.
Secondly, that both the Courts below erred in law in failing to consider as to whether the petitioner has in any way, violated the order of status quo keeping in view the terms under which the order of the Court was passed and writ was issued calling upon him to maintain the status quo.
Mr. M. A. Khaled the learned Advocate appearing for the opposite‑party, on the other hand, submits that the petitioner did not make any objection as to the service of notice on him and, practically, he admitted the said service and moreover, the matter in issue has been concluded by the concurrent findings of fact calling for no interference with the same by this Court.
I have given my anxious consideration to the points raised in the instant case before me in the facts and circumstances. The points involved in the case appear to me to be of great public importance having far reaching effect in the society, and particularly in this case in view of the fact that the parties to the suit are educated and highly placed in the society. It is the preliminary point of jurisprudence that rights and duties of a citizen are co‑existent so as to have a balanced and orderly society and for the better administration in a country. In exercising one's right he has the corresponding duty to respect the right of others also and the consequent duty shall have to be taken notice of by the parties involved in any matter. In common parlance ft has been said that one should live and let others live. In this case ex facie it appears that the plaintiff sought to vindicate his right so that he may be able to enjoy light and air coming to his premises without any hindrance and the privacy of his house may not be invaded by any short of unwarranted and illegal acts of the party, namely, the petitioner but that will really be a question to be finally adjudicated upon in the suit itself after elaborately going through the evidence which may be adduced by both the parties and the points which may be raised by them in support of their respective cases.
This revision case, on the other hand, relates only to the interlocutory order which has been passed on an application under Order XXXIX, rule 2(3) of the Code of Civil Procedure on an allegation of violation of the Courts' order. In con sideration of that I am of opinion that the Courts below have basically failed to consider the points in this behalf keeping in view of the contents of the order which was passed on 29‑7‑68, directing the petitioner to maintain status quo and also the terms of the writ which was sought to be served on him. I therefore, quote the relevant Order No. II of the learned Munsif passed on 29‑7‑68 which runs as follows:‑
"Plaintiff files a petition supported by an affidavit praying for issuing an order of temporary injunction restraining the defendant from making any constructions causing any impe diments to the free passage of air and light and also causing nuisance and annoyance thereof in the south‑east corner of the holding No. 31 S. K. Das Road, Ganderia, till the disposal of the suit and also prays for passing an order of ad interim Injunction till the hearing of this petition. Put up for an order.
Seen. Heard. Issue notice upon the defendants asking to show cause within a week of the receipt of the notice as to why they shall not be restrained from making any con struction causing any impediments to the free passage of air and light and also causing nuisance and annoyance…
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