P L D 1968 Dacca 849 (PLP)

Let me now revert to the order of the learned District Judge under challenge in the present Rule. After noticing the facts involved in‑the two suits and the arguments at the Bar, the learned District Judge appears to have accepted the contention raised on behalf of Sakhawat Hossain that the crucial question involved in the two suits was as to whether Sakhawat Hossain had pledged his shares and thereby encumbered them within the meaning of section 17 of the National Bank of Pakistan Ordinance, 1949 resulting in deprivation of the qualification for either seeking election to or holding the office of Director of the Central Board of the Bank and that of Member of its Local Board. The learned District Judge repelled the contention of the other side to the effect that this Court had earlier held in the aforesaid Civil Revision No. 798 of 1967 that there was no common question of law or fact involved in the two suits. In this connection, he quoted the relevant portion of the judgment of my learned brother A. Sobhan Choudhury, J. which runs as follows: ‑ "A scrutiny of the matter in dispute in two title suits, namely, Title Suit No. 189 of 1966 and Title Suit No. 195 of 1966 shows that they are not identical or in other words the matter in issue in Title Suit No. 195 of 1966 is different from the matter in issue in Title Suit No. 189 of 1966, inasmuch as in Title Suit No. 195 of 1966 the question to determine is whether opposite‑party No. 1 had been duly elected Director of the Central Board and Member of the Local Board, whereas in Title Suit No. 189 of 1966 the matter in issue is whether the resolution of the Central Board dated 27th January 1966 removing the petitioner from the Offices of the Director and Member was illegal, mala fide, ultra vires and without lawful authority. I am unable to hold that the matters in issue in both the suits are identical and that unless Title Suit No. 195 of 1966 is stayed there may be conflict of decisions . . . . . It may be incidentally observed here that the petitioner has taken recourse to delaying tactics." (The underlining' are mine). The learned District Judge was of the opinion that obviously the above observation of A. Subhan Choudhury, J. were intended to relate to the subject‑matter of decision before this Court, namely, the application for stay of the suit of the present petitioner, and were not intended to relate to a possible future application for transfer of the suit under section

24. He further pointed out that the said observations of A. Sobhan Choudhury, J. were specially intended to avoid delay, and that grant of the prayer for transfer by itself would not result in any delay in the disposal of the suits. Having accepted the contentions raised on behalf of Sakhawat Hossain the learned District Judge came to be of the view that "the two suits raise common question of fact and law and it is, therefore, desirable that they should be tried by the same Judge in the interest of Justice". Being of such a view the learned District Judge allowed the application under section 24 and transferred the present petitioner's suit then pending in the 3rd Court of the Munsif at Dacca from that Court to the 1st Court of the Munsif at Dacca. Hence this Rule obtained by Chowdhury Mohammad Sarwar, in which the Bank i.e. the National Bank of Pakistan is opposite‑party No.

2. A preliminary objection was taken at the commencement of the hearing before me by Mr. Badrul Haider Chowdhury who appeared for the opposite‑party No. 2, the Bank. It was urged by Mr. Badrul Haidar Choudhury that the learned District Judge having already exercised the powers concurrently conferred by section 24 on this Court and the District Judge, this Court would not be entitled to exercise those powers over again and therefore, there could be no question of any interference in this Rule. It may be pointed out here that the petition upon which this Rule was issued is described also as one under section 115, C. P. C., though section 24 finds mention in the cause title. It is not necessary for me, therefore in this case to examine if the order complained of could or could not be interfered with by this Court in exercise of powers under section

24. I prefer to consider this petition as one under section

115. Mr. Badrul Haidar Chowdhury, however, contended that the learned District Judge's order did not constitute a decision of a case and that it was only an interlocutory order passed in a case which was yet to be decided. He maintained that such an order was not amenable to revision under section

115. I am unable to accept the contention of Mr. Badrul Haidar Chowdhury, I think that an order passed under section 24 is an original, though an interlocutory, order which itself constitutes the decision of a case sought to be made out for any of the reliefs available under that section and further that no appeal having been provided for against such an order, either refusing or granting relief such an order when passed by a District Judge whose is a Court subordinate to the High Court is revisable under section

115. It is unreasonable to think that the Legislature intended the High Court simply to look on even if an unjust or unconscionable order were passed by a Subordinate Court, purporting to act under section

24. Besides the section provides that if it be invoked by a party to a suit, appeal or other proceeding, the adversary has to be notified and heard before an order can be passed under the section. The section again contemplates transfer from one competent Court to another. It is unthinkable that in a case where the adversary has not been heard or even notified or if one :of the Courts involved is not a Court competent to try, the party aggrieved would have no remedy. No doubt, but for the limitations noticed above, section 24 has conferred on the District Judge as on the High Court, a very wide discretion in the matter of withdrawal and transfer of suits, appeals and other proceedings. The discretion, however, is a judicial discretion and, therefore, it must be exercised not capri ciously or arbitrarily but for substantial reasons based on the special facts of individual cases. On proper occasions High Courts of the sub‑continent have always interfered with orders purported to have been made under section 24, though in some cases reference has also been made to the general power of superintendence of the High Courts over the Subordinate Court's. See for instance Labhu Ram v. Kanta Ram (A I R 1925 Lah. 189), Soroj v. Birija (A I R 1926 Cal. 326), Sheo Nandan v. Mangal Chand (A I R 1927 Pat. 383); Ritohba v. Karim (A I R 1932 Nag. 49) which relies on A I R 1922 All. 65, Muhammad Ali v. Bashir Ahmad (P L D 1953 Bal. 9) and Nazamul Huq v. Bibi Sajeda Khatun (A I R 1954 Pat. 61). In respectful agreement with the clear position taken in the Lahore Case (A I R 1925 Lah. 189), I am of opinion that powers under section 115 are wide enough to enable the High Court to interfere with orders under section 24 passed by a subordinate Court, though it is needless B to say that such interference may be seldom called for and should not be lightly made. To be fair to Mr. Badrul Haider Chowdhury, it should be mentioned that, he referred to the case of Kesho Das v. N. C. Goyal Co. (A I R 1938 Lah. 95) in support of his contention that no revision lies against an order passed under section

24. Indeed, Bhide, J. who decided the case, found force in such a contention that was, however, in the content of the submission that the District Judge had passed the impugned order in exercise of a discretionary power. No one disputes the proposition that High Court does not interfere in the event of a discretionary power having been judicially exercised by a subordinate Court. This decision can thus be of no assistance in this case. On merits, Mr. Badrul Haider Chowdhury had nothing to sub mit. It was the learned Advocates for the petitioner and opposite- party No. 1 Sakhawat Hossain, who contested on merits. Mr. Ishtiaq Ahmed, appearing for the petitioner did not raise any plea of inconvenience, and indeed no such plea could be tenable in view of both the Courts being located at Dacca. He did not also dispute the proposition that the power of transfer under section 24 is exercisable in the event of common questions of law or fact being involved in more than one suit. His only contention was that the learned District Judge's order was vitiated by reason of non‑application, or at least an improper application, of his mind. The contention had two branches, one that the learned District Judge failed to consider that the application for transfer was not made bona fide and, two that he misread the observations of A. Sobhan Choudhury, J. in the earlier revision, namely, Civil Revision Case No. 798 of 1967 where, Mr. Ishtiaq Ahmed claimed, it was definitely held that no common question of fact or law was involved in the two suits. No facts were placed before me in support of the contention that Sakhawat Hossain's application before the learned District Judge was not made bona fide. It was, however, claimed that Sakhawat Hossain made the application with a view only to delay the disposal of the suits, knowing fully well that opposite- party No. 2 in this Rule, namely, the Bank had not yet filed its written statement in his suit. I do not think that this can constitute an indication of want of bona fides on the part of Sakhawat Hossain. If the Bank choses not to file its written statement, it does so at its own risk. The trial Court will have ample powers for disposal of the suit in its absence. Reference in this connection may be made to Order VIII, rule 10 of the Code of Civil Procedure. So far as Sakhawat Hossain is concerned it is not disputed that he has long filed his written statement in the petitioner's suit. The contention that the application for transfer was not made bona fide is accordingly rejected. Let me now come to Mr. Ishtiaq Ahmed's contention that the learned District Judge passed the order without a proper application of his mind. He claimed that the basis of the order, namely, the view that common questions of fact and law were involved in the two suits was unsupportable and erroneous, and that the learned District Judge's assumption in that regard was in direct conflict with the view taken by A. Sobhan Choudhuri, J. in the earlier revision. If the learned District Judge's view that the two suits involved some common question of fact or law were really contrary to a view earlier taken by A. Sobhan Choudhury, J. in the aforesaid revision case, then certainly it must be held that the order complained of was passed without a proper application of the judicial mind. The learned District Judge's claim that he had before him the judgment of my learned brother, from which a portion was quoted by him in the order would also be of no avail. It was, therefore, that I asked Mr. Ishtiaq Ahmed to point out the portions of the judgment of my learned brother A. Sobhan Choudhuri, J. where he could be said to have expressed the view that no common question of fact of law was involved in the two suits. Mr. Ishtiaq Ahmed referred me only to two portions of my learned brother's judgment, one of which was taken note of by the learned District Judge and I have already quoted it above. The other, which proceeds a discussion of the reliefs asked for in the two suits, is set down below: "This brings us to a consideration of the question whether the matter in issue in both the two suits is the same and whether the decision in these two suits were dependent on the finding on one crucial point, namely, whether the petitioner has incurred disqualification by pledging his shares with the Habib Bank, Moulvibazar Branch." (The underlining* is mine). It will appear from the above noted two extracts from the judgment of my learned brother A. Sobhan Choudhuri, J. that there is nothing in any of them to indicate that he either considered the point whether any common question of fact or law was involved in the two suits or expressed any opinion thereon, so as to affect a future application under section

24. His entire attention was focussed on the solitary question whether Sokhawat Hossain's application for staying Choudhury Mohammad Sarwar's suit attracted the ingredients of section 10, C. P. C. which he summarised as follows: ‑‑ "The essential ingredients of section 10 of the Code are that both the suits should be between the same parties under whom they or any of them claim litigating under the same title and that the matter in issue in the earlier suit is identical with the matter in the subsequent suit. Thus, this section has application where (a) the matter in issue in the subsequent suit is also directly and substantially in issue in the previously instituted suit (b) the previously instituted suit is pending in the same or in any other Court having jurisdiction to grant the relief claimed in the suit ; (c) and that the parties or their privies in both the suits are litigating under the same common title." My learned brother then proceeded further to say as follows: ‑ "The difference in the relief claimed in the two suits is quite immaterial under this section. The identity of the matter directly and substantially in issue is material. This section is intended to prevent Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two or more parallel litigations in respect of the same cause of action and the same subject‑matter, or in other words litigation in which the matters in issue are identical." I have perused the entire judgment in addition to the above extracts of my learned brother in the aforesaid revision case. I am unable to accept Mr. Ishtiaq Ahmed's contention that the learned District Judge misread the observations made there in or that the view taken by the learned District Judge on the point whether the two suits involved common questions of law or fact is in conflict with the view taken by my learned brother in this Court. The second branch of Mr. Ishtiaq Ahmed's contention must also, therefore, fail. Let me now examine if it can reasonably be said that the two suits involve common question of law or fact. The learned District Judge appears to have taken the view that the question whether Sakhawat Hossain's shares had been pledged with the Habib Bank Ltd., was a question common to both the suits. Of course, there is this difference that in one suit the question is whether the said shares were pledged before the elections and in the other whether they were pledged if not before, at least after the elections. It is not that in relation to applications under section 24 facts in the suits involved need be common in all respects i.e. identical on all points ; nor has the learned District Judge said so in the impugned order. Hence the outstanding question which has both factual and legal aspects, and which seems to be common to both the suits and appears to have impressed the learned District Judge, is as to whether Sakhawat Hossain did at all pledge his shares with the Habib Bank Ltd., and thereby incurred disqualification under section 17 of the National Bank of Pakistan Ordinance, 1949. The learned District Judge, therefore, does not seem to have taken an unreasonable view of the matter. In the circumstances the discretion conferred on him by section 24 cannot be said to have been capriciously or arbitrarily exercised. I agree with Mr. Fazlul Wahab who appears for opposite‑party No. 1 Sakhhwat Hossain, that in the premises the discreti3n under section 14 has been quite judicially exercised by the learned District Judge, upon an honest endeavour to come to reasonable conclusions on questions raised before him. No question of jurisdiction is, therefore, involved in this Rule. The Rule is accordingly discharged with costs. A. E. Rule discharged.