P L D 1969 Dacca 516 (PLP)

MAKSUM‑UL‑HAKIM, J.‑This Rule was obtained by the petitioner calling in question the judgment and order of Mr. A. H. Chowdhury, District Judge, Jessore, passed in Misc. Judicial Case No. 100 of 1965 wherein he set aside the judgment and decree of the Conciliation Court of No. 6 Kaiba Union Council in Case No. 10 of 1965‑

66. The facts, in brief, are as follows: The petitioner along' with respondents Nos. 4 to 7 had properties in India which they claimed to have exchanged by executing and registering a deed of exchange dated 15‑4‑1964 with Gurudas Singha, who is the father of respondent No.

3. The property was valued at Rs. 8,000 and the document in question was executed and registered in India. It was further contended that in exchange of these properties given to the said Gurudas Singha, the petitioner and respondents Nos. 4 to 7 obtained the suit properties which is situated in Pakistan in lieu of their properties that were situated in India. It was further stated that respondent No. 2 who has got 4 annas share in the said property which has been generally described as Bagacharhat was trying to grab the entire properties and for that purpose brought several criminal cases against the petitioner and his co‑sharers. Petitioner along with his co‑sharers who are respondents Nos. 4 to 7 thereafter filed Case No. 10 of 1965‑66 before the Kaiba Union Council for a declaration that the plaintiffs have title in the suit property on the basis of exchange and as such they are entitled to the possession of the suit property. It was further contended that the respondents Nos. 2 and 3 appeared in the case and nominated their representatives, namely, Md. Maniruddin Mondal and Md. Chand Ali and the petitioners nominated their representatives being Dr. Sefatulla and Dr. Ramjan Ali. The Chairman of the Union Council became the Chairman of the Conciliation Court. It is contended that all the five members arrived at an agreed decision and in pursuance of that unanimous decision the suit was decreed and an award was granted in favour of the plaintiffs. Respondent No. 2, who filed a petition before the District Judge, contended that the defendant No. 1 Jayanta Kumar Singha left Pakistan for good a long time ago and the plaintiff- petitioners dishonestly gave his address as in Baguri, P. S. Sharsha District Jessore, so that the information about this case may be kept completely out of his knowledge. It was further contended by the respondent No. 2 that no notice or summons were served: upon the defendant No. 1 and as such he could not nominate any of his representatives. The representatives who appeared for the defendants were not the real representatives of any of the defendants and they were managed by the plaintiffs and were self‑styled representatives of the defendants. Under these circums tances it was contended that the decree obtained from the Union Council was illegal and without jurisdiction. On being moved against the aforesaid award of the Concilia tion Court, the learned District Judge heard the parties and by his judgment dated 5‑2‑1966 passed in Misc. Judicial Case No. 100 of 1965 set aside the judgment and decree of the Conciliation Court. The learned District Judge found that the defendant No. 1 in the Conciliation proceeding was a minor and in view of the provisions of clause (a) of subsection (2) of section 3 of the Conciliation Courts Ordinance, 1961, the Conciliation Court had no jurisdiction to adjudicate the matter. It was further found that the order of the Conciliation Court was not signed by any of the representatives nominated by the parties and as such the order was void. As against this judgment of the learned District Judge the present Rule has been obtained by the plaintiff‑petitioner. Mr. Syed Mohammad Ali, the learned Advocate appearing for the petitioner, has contended that as the original award bears the signature of the five members of the Court and as the decision is unanimous, as such ii, view of the provisions of subsection (1) of section 8 of the Ordinance, the decision of the Conciliation Court was final and binding ant the District Judge had no jurisdiction to entertain any appeal or revision in this regard. He has, therefore, submitted that as the judgment of the learned District Judge is without jurisdiction, as such the same should be declared as one without any lawful authority and should be set aside accordingly. Subsection (1) of section 8 of the Conciliation Courts Ordinance, 1961, runs as follows:‑ "8(1) where in a case referred to conciliation under this Ordinance the decision of the Conciliation Court is unanimous, or, if the case falls under Part I of the Schedule, the decision is by a majority of four to one, the decision shall be binding on the parties and shall be enforceable in accordance with the provisions of the Ordinance." From this subsection it appears that when a decision of a Conciliation Court is unanimously arrived at by all the members of the Court or by a majority of four to one in respect of matters falling under Part I of the Schedule, then such a decision is binding on the parties and enforceable amongst them. Mr. Mahbubur Rahman, the learned Advocate for respon dents has argued that the decision in this case is not a decision of the nature as contemplated in subsection (1) of section 8 as quoted above, in view of the fact that the order of the Concilia tion Court is not actually an order which was unanimously arrived at by all the representatives of both the parties nor by a majority of four to one. He has further contended that the representatives shown as those for the defendants are not really their representatives. A perusal of the decision of the District Judge shows that he was also of the view that the award of the Conciliation Court is not signed by the representatives of the parties. The entire records of the Conciliation Court relating to this case has been called for and is before us. There is an order dated 19‑10‑65 in the order‑sheet of the Conciliation Court which shows that on that day the letter of authority appointing the representatives on behalf of the defendants was received. They records, however, do not show any such letter or petition showing any appointment or any consent whereby the representatives were appointed by the defendants in this case. There are, however, five declarations wherein the five persons took oath to act as members of the Conciliation Court. These, however, do not show any authority, or any nomination on behalf of the defendants nor any signature or any statement on their behalf is appended in any of the papers in this regard showing that any of these persons are nominated or selected as representatives by the defendants of that conciliation case. In the judgment of the Conciliation Court it is stated that the principal defendant has not appeared in the proceedings though he has received notice in the case. We have examined the records carefully but we do not find any service return showing that any notice of this proceeding was served on the principal defendant. The dispute is concerning property worth about Rs. 8,000 as is clearly seen from the written objection filed before the District Judge and the plaint filed by the plaintiff before the Conciliation Court. The matter, therefore, clearly relates to Part II of the Schedule. Clause (b) of subsection (4) of section 5 of the Ordinance provides that if the case falls under Part If of the Schedule and the representatives of the parties are not nominated by the parties within the prescribed time then the Chairman is to issue a certificate to the effect that the conciliation has failed. Sub‑Rule (2) of Rule 10 of the Conciliation Courts Rules, 1962, runs thus "10(2) If the case relates to Part II and any of the respon dents does not appear in obedience to the summons, or if he appears but does not agree to refer the case to the Conciliation Court, the Chairman of the Union Committee shall issue a certificate to the effect that conciliation has failed." From this Rule it is obvious that as the matter relates to Part II of the Schedule and as the principal defendant did not appear in the case, as such it was the incumbent duty of the Conciliation Court to record a failure of the conciliation proceedings this, however, was not done, as such it is clear that the decision of the) Conciliation Court was in clear violation of the Rules relating to such matters. Apart from that, the provision contained in section 3, subsection (2) (a) also appears to have been violated by the Conciliation Court. In the plaint the defendant No. 1 was described as a minor and the aforesaid subsection (2) (a) of section 3 clearly bars any Conciliation Court to entertain any conciliation proceeding relating to a property of a minor. From this stand‑point as well, the decision of the Conciliation Court 1 is contrary to law. It is obvious, therefore, that the decision of the Conciliation Court cannot be sustained in law. From the above discussion it will be abundantly clear that the decision of the Conciliation Court in the instant case is not of the nature as mentioned in subsection (1) of section 8 which renders the same enforceable and binding amongst the parties. The representatives who styled themselves as the representatives of the defendants cannot be taken to be the properly constituted representatives of the defendants, particularly the defendant No.

1. Moreover, the defendant No. 1, who had admittedly migrated to India long ago, was falsely stated to have his address in Bagura, P. S. Sharsha, district Jessore in the plaint. Over and above this, he was a minor and in view of the provision of section 3(2) (a) the Conciliation Court had no jurisdiction to entertain any matter concerning his interest. There is yet another interesting feature about this matter. The Conciliation Court in its letter dated 10‑I‑1966 to the District Judge, Jessore, stated that the case itself was dismissed on the proposal of the parties. From the above it is clear that the award of the Conciliation Court was procured by suppressing facts and adopting unconscionable steps in the matter and thus the award had no valid and legal existence. The petitioner, however, has argued that the District Judge had no jurisdiction in the matter in view of the fact that section 8 (2)(b) of the Ordinance which empowers a District Judge to interfere is only confined to matters relating to Part I, section B of the Schedule. He has therefore claimed that the judgment of the District Judge should be quashed. We are unable to accept this contention of the learned Advocate. The jurisdiction that we have been called upon to exercise is not one, which can be invoked by one who is guilty of bad faith and unconscionable conduct. The right is in the nature of ex debito justitiae, but will only be granted if the petitioner can show that his conduct has not been such as to disentitle him of such a relief. This jurisdiction of ours should not be exercised if it leads ultimately to a patent injustice. This conclusion of ours finds support from an observation of their Lordships of the Supreme Court in the case of Chowdhury Altaf Hussain and others v. The Chief Settlement Commissioner, Pakistan, Lahore and others (P L D 1965 S C 68) S. A. Rahman, J., as he then was, observed as follows: ‑ "If the appellant had however asked for quashing of the review order by the High Court on the plea of illegality, in certiorari jurisdiction, he could have been met with the plea that a writ of certiorari does not issue as of course but that though discretionary, it could be granted ex debito justitiae provided that the conduct of the aggrieved party who seeks to challenge it, has not been such as to disentitle him to relief." In the case of Tufail Muhammad and others v. Raja Muhammad Zia Ullah Khan, Claims Commissioner, Lahore and another (P L D 1965 S C 269), the Supreme Court again observed as follows: "The writ jurisdiction is not to be exercised in aid of injustice. We have little doubt that Khalilur Rahman was putting forward an untrue case before the Settlement Authorities when he claimed the whole house . . . ." We have already seen that the award was clearly illegal and void and was obtained by practising deception. I he petitioner has filed this petition to restore the award by setting aside the order of the District Judge. Under this circumstance we decline to enter into the question of validity of the order of the District Judge as we have arrived at the conclusion that the award itself is void and in enforcing which this petition has been filed. Moreover, the Conciliation Court itself wrote that it dismissed the case. In the above circumstances we feel that this application has no merit which is bound to fail. The Rule is accordingly discharged without any order as to costs. SIDDIKY, C. J.‑‑I agree. Rule discharged.