High Court Division
(Special Original Jurisdiction)
Nazmun Ara Sultana J
Sheikh Hasan Arif J
Abdul Mukid (Md)…………..
………………….Petitioner
vs
Artha Rin Adalat,
Khulna and another ………….
…………. Respondents
Artha Rin Adalat Ain (VIII of 2003)
Section 5
Since the Adalat in question did not have jurisdiction to entertain or to proceed with the application the whole proceeding before the Adalat were entertained and continued before the Adalat without jurisdiction and, as such, the same are nullity in the eye of law. ……….. (4)
Supreme Court of Bangladesh vs Md Sufi Uddin, 6 BLC (AD) 241; Bangladesh House Building Finance Corporation vs Jahanara Akter, 16 BLD (AD) 231 = 49 DLR (AD) 80; Essex Incorporated Congregrational Church Union vs Essex CC, [1963] AC 808 and Mahmudul Basque vs Shamsul Alam, 36 DLR (AD) 179 ref.
Ahmed Nowshed Jamil, Advocate-For the Petitioner.
Judgment
Sheikh Hassan Arif J: Rule was issued calling upon the respondents to show cause as to why the registration of the application under Article 27 of the President’s Order No.7 of 1973 as Miscellaneous Case No. 148 of 1991 passed by the Artha Rin Adalat, 2nd Court, Khulna being Order No. 1 dated 19-6-1991 and Order No.15 dated 31-5-1992 passed by the said court allowing the Miscellaneous Case (Annexure-B to the Writ Petition) and Order of registration of the execution application as Artha Rin Execution Case No.34 of 1993 passed by Artha Rin Adalat, 2nd Court, Khulna being Order No. 1 dated 28-7-1993 (Annexure-D to the Writ Petition) should not be declared to have been passed without lawful authority and is of no legal effect.
2. Shorts facts, relevant for the disposal of the rule are that; Respondent No.2, Bangladesh House Building Finance Corporation, Zonal Office, 2 Sir Iqbal Road, Khulna is a Corporation established under the Bangladesh House Building Finance Corporation Order, 1973 (PO No. 7 of 1973). Respondent No., 2 filed an application under Article 27 of the President Order No. 7 of 1973 against the father of the petitioner before the Artha Rin Adalat, 2nd Court, Khulna for realization of loan of Taka 11,32,972.25. Accordingly, the Artha Rin Adalat registered the same as Miscellaneous Case No. 148 of 1991 by order dated 19-6-1991, and subsequently, by ex-parte Order dated 31-5-1992 allowed the Miscellaneous Case and again by order dated 7-6-1992 passed decree in favour of the Respondent No.2. Respondent No.2 then put the said decree into execution by filing an application on 28-7-1993 before the same Artha Rin Adalat, whereupon the Adalat registered the same as Title Execution No. 34 of 1993 by order dated 28-7-1993. In the meantime, the father of the petitioner having died, the petitioner entered appearance before the execution court and executed a solenama with respondent No. 2 resulting in a solenama-decree on 15-2-1995 in terms of the said solenama. However, the petitioner having failed to repay the loan as per the terms of the solenama decree, Adalat by order dated 17-2-1998 recommenced the execution proceeding at the instance of respondent No.2. In the process of said execution, the Adalat issued warrant of delivery of possession in favour of respondent No.2 in respect of the mortgaged property of the petitioner’s father. The petitioner then filed an application for recalling the said warrant of possession, whereupon the Adalat, after hearing the parties, by order dated 9-4-2009, rejected the same. The petitioner then moved this court and obtained the Rule.
3. Mr Ahmed Nowshed Jamil, the learned Advocate for the petitioner centres his arguments mainly on the contention that the Artha Rin Adalat constituted under Artha Rin Adalat Ain did not have jurisdiction to entertain the miscellaneous case filed by respondent No.2 under Article 27 of President Order No.7 of 1973. He submits that Artha Rin Adalat only entertain Suit (gvgjv) filed by the financial institutions upon payment of ad valorem Court fee. However, in the present case the Artha Rin Adalat having entertained the application filed under Article-27 of the President Order 7 of 1973 and passed decree and different orders in the process of execution of the said decree, the Adalat acted beyond its jurisdiction and, as such, the whole proceeding before the Artha Rin Adalat in question was without lawful authority being quorum non judice. He contends that although the petitioner and his father did not raise any objection before the Artha Rin Adalat regarding its lack of jurisdiction, yet, he submits, jurisdiction of a court cannot be conferred by consent of parties and, as such, the principle of estoppel, waiver & acquiescence will not apply against him in the present case. In support of his contention he refers to a decision of our Appex Court in Registrar, Supreme Court of Bangladesh vs Md Sufi Uddin reported in 6 BLC (AD) 241, wherein their Lordships held that consent or waiver cannot give jurisdiction where there is inherent lack or absence of it. He further submits that it is now settled by our Supreme Court that Bangladesh House Building Finance Corporation cannot file any application under Article 27 of President Order No. 1973 before the Artha Rin Adalat for the simple reason that the application under Article 27 does not come within the preview of suit. In this regard, he refers to another decision of our Appellate Division in Bangladesh House Building Finance Corporation vs Jahanara Akter reported 16 BLD (AD) 231 = 49 DLR (AD) 80.
4. Perused the Writ Petition and considered the submissions made by the learned Advocate for the petitioner, while none appeared for respondents to contest the rule. It is now well settled that a court acquires jurisdiction only from the statute or the law which has constituted the court and no parties to any litigation can confer such jurisdiction on the court by consent. It is also well settled that even the consenting party cannot be stopped from subsequently maintaining that the court or tribunal had acted without jurisdiction. The cases cited by the learned Advocate for the petitioner and some others like Essex Incorporated Congregational Church Union vs Essex CC, [1963) AC 808 and Mahmudul Haque vs Shamsul Alam, 36 DLR (AD) 179 have reinforced this principle of law again and again. Further, our Appellate Division made it clear that a financial institution like Bangladesh House Building Finance Corporation has two options to realize the loan from the defaulter-borrower, one is an application before the District Judge under Article 27 of the President Order 7 of 1973 by depositing a very nominal court fee applicable to applications and the other is by filing regular suit before the Artha Rin Adalat upon depositing ad valorem court fee. The Artha Rin Adalat will only have jurisdiction in such a case if the concerned financial institution has filed a Suit before it upon depositing ad valorem court fee for realization of loan, and this position of law having already been settled by this court in various decisions, we are not inclined to elaborate any further on this point. The records before us, namely the order of the Artha Rin Adalat passed in Miscellaneous Case No. 148 of 1991 and Title Execution Case No. 34 of 1993, categorically show that the Adalat entertained an application filed by respondent No. 2 under Article 27 of President Order 7 of 1973 and registered the same as Miscellaneous Case No. 148 of 1991 for which the Adalat did not have jurisdiction.
Further, it shows that the Adalat continued the proceeding of the said Miscellaneous Case and passed decree and commenced or recommenced Execution Case for which it did not have such jurisdiction under the law. Therefore, in the facts and circumstances of the case we are of the view that the submissions made by the learned Advocate for the petitioner have substance. We hold that since the Artha Rin Adalat in question did not have jurisdiction to entertain or to.
Proceed with the application filed by respondent No.2 under Article 27, the whole proceeding before the Artha Rin Adalat namely the proceeding in Miscellaneous case No. ‘148 of 1991 and Title Execution case No. 34 of 1993 were entertained and continued before the Adalat without jurisdiction and, as such, the same are nullity in the eye of law. However, we are of the view that the respondent No.2, the Bangladesh House Building Finance Corporation, can still proceed afresh for realization of its loan before the proper forum in accordance with law.
5. In the result, the Rule is made absolute without any order as to costs.
6. It is declared that the proceedings before Artha Rin Adalat, 2nd Court, Khulna in Miscellaneous Case 148 of 1991 and in Title Execution Case No 34 of 1993 now pending before Artha Rin Ada1at, 2nd Court, Khulna have been entertained and proceeded without lawful authority and of no legal effect. Consequently, any order passed or certificates issued by the said Artha Rin Adalat also resulted in nullity.