P L D 1965 Dacca 46 (PLP)

MURSHED, J.‑This application is directed against an order passed by an Additional District Judge of Bakerganj in respect of an appeal heard and disposed of by him under the provisions of section 476‑B of the Code of Criminal Procedure. Plaintiff-petitioner filed a suit for specific performance of a contract and obtained an ex parte decree in respect thereof. Before the suit was thus disposed of by the trial Court, there were some attempts by the defendant to obtain time from the Court to file a written statement. An application was made in the trial Court that the aforesaid application for adjournment was un-authorised by the defendant in the suit. The trial Court directed personal appearance of the defendant under the aforesaid circumstances. The defendant did not comply with the direction given by the Court but, applied through his lawyer, for four months' time to appear in person as required by the Court. He was, however, given one month's time to do so. He made another abortive attempt to delay the hearing of the suit by applying to the District Judge of Bakerganj, under section 24 of the Code of Civil Procedure for a transfer of the suit to some other Court. The District Judge also directed him to appear in person. As he did not do so, that application was also rejected. Eventually he did not contest the suit which was decreed ex parte, as stated above. Thereafter, defendant made an application under Order IX, rule 13 of the Code of Civil Procedure, for setting aside the said ex parte decree. He was again directed to make a personal appearance when his aforesaid application under Order IX, rule 13 was heard. He again disobeyed Court's direction and did not appear to support his application. So, this application was also dismissed for non‑prosecution. Thereafter he filed an appeal, in this Court against the dismissal of his application under Order IX, rule 13 of the Code of Civil Procedure, which was also dismissed. The defendant (opposite‑party before us), however,, took recourse to obtain an indirect relief and applied to the trial Court for the prosecution of the plaintiff‑petitioner under section 476 of the Code of Criminal Procedure on the allegation that the agreement, upon which the petitioner obtained the aforesaid ex parte decree from that Court, was forged. The trial Court, on a consideration of the application made by the defendant‑opposite‑party, rejected the same on the view taken by it to the effect that the.ex parte decree obtained by the plaintiff' (petitioner No. 1 before us) must have been obtained on the footing that the impugned document was a genuine one. Besides, it is evident that defendant failed to contest the suit itself. The trial Court, however, erroneously held that the petition made by the defendant‑opposite‑party was not maintain able because the suit in respect of which the petition was made was no longer pending before that Court. It is not necessary that the proceeding, in respect of which the application is made, should itself be pending before the Court. Against the order passed by the trial Court refusing to take steps against the present petitioner (plaintiff) under section 476 of the Code of Criminal Procedure, an appeal was preferred which was heard by the above‑mentioned Additional District Judge, who set aside the order passed by the trial Court and sent the aforesaid application on remand to that Court for reception of evidence with regard to the application and for disposal of the case thereafter. Petitioners thereupon moved this Court in its revisional jurisdiction against the order passed by the Additional District Judge and obtained the present Rule. At the hearing of the Rule Mr. M. A. Khondkar, appearing for the petitioners in support of the Rule, placed before us the facts and circumstances of the case as set out above. He has contended that the appellate jurisdiction of the learned Additional District Judge was confined to the provisions of section 476‑B of the Code of Criminal Procedure. It was submitted by hire that the appellate Court below had no other power apart from those given by that section. Section 476‑B of the Code of Criminal Procedure reads as follows: "Any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint under section 476 or section 476‑A, or against whom such a com plaint has been made, may appeal to the Court to which such former Court is subordinate within the meaning of section 195, subsection (3) and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the, complaint or, as the case may be, itself make the complaint which the subordinate Court might have made under section 476 and if it makes such complaint the provisions of that section shall apply accordingly." It is thus apparent that the only power which an appellate Court has under the aforesaid section is that, in an appropriate case, it can itself make the complaint or direct the withdrawal of such complaint. Of course, it can affirm the impugned order and dismiss the appeal. No other course is open to the appellate Court and it is obvious from the provisions of the aforesaid section that the appellate Court has no jurisdiction to remand back the case to the trial Court. This is apparent from the plain meaning of the language of the aforesaid section and it is also supported by a number of decisions on the subject. See Manir A/amed Chowdhury v. Jogesh Chandra Roy (I L R 55 Cal. 1277), Rammiranjan v. Muk Nath Singh (43 Cr. L J 569) and Vethoba v. Goral (51 Cr. L J 176: A‑1 R 1949 Nag. 343). In the last mentioned case, that is, Vethoba v. Goral, it was held that the appellate Court was not empowered, under section 476‑B, to order remand of the case to the trial Court and to direct it to receive evidence for a re‑disposal of the case. The contention of the learned Advocate for the petitioner in this behalf must, therefore, be upheld. The order passed by the learned Additional District Judge. therefore, liable to be set aside on this ground alone. However, it appears to us that defendant's application was not made in good faith. It is obvious that defendant‑opposite party, by applying to the trial Court for taking steps against the plaintiff under section 476‑B of the Code of Criminal Procedure was trying to establish that the aforesaid agreement was forged without directly obtaining a decision on the point in the suit itself. The said application is only an oblique attempt to launch a circuitous attack upon the plaintiff‑petitioner, having failed to contest him in the suit. It has also been brought to our notice that an appeal against the aforesaid ex pane decree obtained by the plaintiff-petitioner is pending in this Court. In these circumstances, the application made by the defendant‑opposite‑party, on the face of it, was to say the least, misconceived. The facts set out above raise a strong suspicion that the application made by defendant, under the said section 476‑B lacks good faith. It would have been most inexpedient to direct the prosecution of the plaintiff‑petitioner under section 476 of the Code of Criminal Procedure. Such a course would have unjustifiably involved the Court in a collateral enquiry about the genuineness of the agreement when that issue was not fought out in the suit. The provisions of section 476 of the Code of Criminal Procedure are not designed to enable the Court to launch upon a prosecution of a party alleged to be guilty of giving false evidence in Court in every case that comes before the Court, without considering the expediency of such prosecution. The section makes it obligatory upon the Court to consider whether it is expedient, in the interest of justice, to do so. This requirement is a very important obligation which should not be lost sight of. The Court should not allow itself to be converted into a machinery for achieving the private ends of parties. The trial Court was competent to reject the application submitted by the defendant on a consideration of the application itself without receiving evidence from the parties. It appears that in this case the said Court had acted very properly in refusing to exercise its powers under the provisions of the aforesaid section 476 of the Code of Criminal Procedure. The application under section 476 of the Code was obviously a manoeuvre to revive a point which was not agitated in the suit. Defendant opposite‑party must establish his case in the appeal preferred by him against the said ex parte decree. The result, therefore, is, that the Rule is made absolute and the impugned order passed by the learned Additional District Judge, dated the 18th of January '1961, in Miscellaneous Appeal No. 347 of 1960, remanding the aforesaid application to the trial Court is hereby set aside and the order passed by the trial Court rejecting the said application is hereby restored and affirmed. We make no order as to costs of this application. A. SUBHAN CHOWDHURY, J.‑I agree. S. Q. Rule made absolute.