1. 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.
2. '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.
3. 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 hearing of the injunction matter.
4. 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 northeastern side of his newly constructed first floor and second floor causing 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.
5. 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 unnecessary 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 bed-room. 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.
6. 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 accordingly he allowed the application and attached the property of the said defendant by his judgment and order dated the 17th November 1969.
7. 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.
8. 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.
9. 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.
10. Mr. Md. Nurul Huq, 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 inadvertance a second miscellaneous appeal was filed and there was no lathes on the part of the petitioner in doing so. An act of inadvertance has been regretted by the learned Advocate for the petitioner with positive statement to that effect in the application itself.
11. 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.
12. In the case of Ram Taran and others v. Sukumari Debi 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 . 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 , where their Lordships Mookerjee and Beachcroft, 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.
13. Reference may also be made to the decision in the case of Sint. Guru Dasi v. Sarbananda Mahaldar and others 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 application has taken a preliminary objection that an order refusing restoration under Order XLI, rule 19, is an appealable order, and no revision lies.
14. 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."
15. 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 Hannan and others . In delivering the judgment in the said case A. S. Chowdhury, 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 paint 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 adjudicating 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 1 2 3 4 5 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."
16. 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 . 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 AIR 1926 Mad. 1015. I may also refer to the decision in the case of Faizullh Khan and another v.
17. Mouladad Khan . 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 memorandum stands good from its date.
18. 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 . 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.
19. 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 . 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 any6 7 8 9 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."
20. 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 document 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.
21. I have therefore, allowed the application of the petitioned 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.
22. 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.
23. Mr. Md. Nurul Huq 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.
24. 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. K haled 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 it has been said that one should live and let others live. In this case ex facie it appears that the plaintff. 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 case .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 consideration 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 impediments 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.
25. 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 construction causing any impediments to the free passage of air and light and also causing nuisance and annoyance thereof to the south-east corner of holding No, 31 S. K. Das Road, Ganderia till the disposal of the suit.
26. In the meantime status quo be maintained, party to put in requisites at once."
27. A writ was issued by the Court in pursuance of the said order as revealed from the notice dated the 29th July 1968 which is to the following effect:-- "Whereas the plaintiff has filed an application in this Court to call upon the defendant to show cause why he should not be restrained from causing impediments to the free passage or air and light and also causing nuisance and annoyance thereof in the southern and eastern corner of No, 31 S. K. Das Road till the disposal, the defendant to show cause within one week and in the meantime the status quo be maintained:-- In fact the notices and the writ thereof are in terms of the order quoted above.
28. I would like to consider the second point of Mr. Huq first and then take up the first point as to service of notice in disposing of this case. Mr. Huq's contention is really to the effect that both the Courts below did not consider the case of the defendant and, also in the real point the Courts below did not arrive at any finding in that behalf inasmuch as the judgments of the Courts below would reveal that they did not consider the question of violation with reference to the terms of the order quoted above and the contents of the notice and writ thereof. The learned Advocate seriously contends that it is not found from the judgments of the Courts below that they ever considered how far the petitioner caused any impediments to the free passage or air and light and also invasion and annoyance thereof in the southern corner of the holding in question by making any construction and violating thereby the order of maintaining the status quo. His contention therefore is that the decision of the Courts below do not reveal that they applied their judicial mind to consider how far the order of maintaining status quo was in any way violated by the petitioner causing any impediment to the free passage of air and light and also causing nuisance and annoyance thereof in the southern-eastern corner of the holding. I have carefully perused the judgments of both the Courts below, and I find considerable force in the argument of Mr. Huq in this regard. To my mind, it appears that the discussions of the Courts below in their judgments tantamount to prejudging the merit of the suit itself which no Court should be allowed to take recourse to while considering an interlocutory matter like the present one. Mr. Haq has drawn my attention to the relevant finding of the learned Munsif in this respect which runs as follows:- "..... Now judging the evidence of both sides very carefully I find that most of the P. Ws. are respectable and responsible persons of the locality and no enmity with them has even been suggested by the 0. P. and all of them in one voice stated that the 0. P. constructed his construction work after 29-7-68. This was also corroborated by the P. W. 2 Advocate Commissioner who went on the spot on 30-7-68. In the result I am fully satisfied that the 0. P. continued his construction work by clear violation of the Court's order of maintaining status quo dated 29-7-68, and hereby the 0. P. has committed the offence of contempt of Court."
29. Mr. Huq thereafter referred me to the finding of the learned Subordinate Judge in this regard which runs as follows:-- "He has also seen construction works going on after the order of injunction was served on the appellant. I find no ground to disbelieve the testimony of these two witnesses who are also corroborated by subsequent witnesses examined by the petitioner-respondent. The learned trial Court has rightly found that the appellant 0. P. has intentionally violated the order of injunction and I find no reason to interfere with his decision."
30. The findings of the Courts below would show that some construction was going on at the instance of the petitioner but there is no finding by any of the Courts below to show how far the said construction caused impediments to the free passage of air and light and nuisance and annoyance thereof in the south-eastern corner of the holding in question. In support of his contention Mr. Haq has referred me to the decision in the case of Mehbub Nessa Siddiqui v. A. Y. All and others. In the said case Ali, J. while considering a similar matter arising out of an application under Order XXXIX, rule 2(3) of the Code of Civil Procedure observed:-- It appears that for the purpose of determining whether the defendants are nearly guilty of disobedience as alleged and even, if so, to what extent the disputed wall is liable to be demolished it is necessary that there should be a clear finding as to whether the wall in question had to any extent been erected prior to the service of the restraint order and if so to what extent. Unless such a finding is made and it is ascertained to what extent if any the wall actually was erected after the service of the order there can obviously be no direction for demolishing the same."
31. Mr. Nurul Huq, the learned Advocate for the petitioner also contends that the provision of Order XXX IX, rule 2(3) of the Code of Civil Procedure is in effect punitive and as such the same should be very strictly construed. In support of this contention the learned Advocate has referred to decision of the Supreme Court of India in the case of State of Bihar v. Rani Sonapati Kumari . In the said case a question arose on the interpretation of the provision under Order XXXIX, rule 2(3) of the Code following a temporary injunction ordered by the Court that the defendant should not issue any notification for taking our possession of the suit property under the Bihar Land Reforms Act and should not interfere with or disturb in any manner the plaintiff's possession. In that case it was also held that the State was not immune from the application of the provision of Order XXXIX rule 2(3) of the Code against it. But the Supreme Court also held to the following effect :- "Though undoubtedly proceedings under Order XXXIX, rule 2(3), Civil Procedure Code have a punitive aspect as is evident from the contemner being liable to be ordered to be detained in Civil prison, they are in substance designed to effect the enforcement of or to execute the order. This is clearly brought out by their identity with the procedure prescribed by the Civil Procedure Code for the execution of a decree for a permanent injunction. Order XXI, rule 32, sets out the method by which such decrees could be executed.
32. In the said sees an observation has been made which in effect support the first contention of the learned Advocate for the petitioner. The said observation runs as follows:-- "The second contention urged was that even if on a proper construction of the order, read in the light of the relevant pleadings, the State Government was directed to abstain from publishing a notification under section 3(1) of the Act, still, if the order was ambiguous and equivocal and reasonably capable of two interpretations, a party who acted on the basis of one of such10 11 interpretations could not be held to have wilfully disobeyed the order. Stated in these terms, the contention appears unexceptionable. For its being accepted in any particular case, however two conditions have to be satisfied, (I) that the order was ambiguous and was reasonably capable of more than one interpretation, (2) that the party being proceeded against in fact did not intend to disobey the order, but conducted himself in accordance with his interpretation of the order."
33. The order in the instant case which I have quoted above would really show that the same is ambiguous, equivocal and capable of two interpretations, inasmuch as, there is nothing in the order to show that the petitioner was directed to stop the construction in his premises altogether and, on the other hand, it shows that only with regard to an operation of the construction under certain conditions was ordered by the Court not to be proceeded with by the petitioner. Mr. Nurul Huq has rightly pointed out that there is no evidence to show that the petitioner proceeded with the construction which was really ordered not to be proceeded with under certain conditions by the Court. He has seriously objected to the Courts' reliance on the merit of the report of the Advocate Commissioner on the record because of the fact that the said Commissioner alleged to have inspected that place without serving any notice upon the petitioner and moreover, his report shows that he could not go to the actual place for his inspection and only from the premises of the opposite-party, he could see the place where the construction was alleged to have been made by the petitioner in violation of the Court's order. Mr. Huq has very rightly pointed out that the sequence of events which led to the report of the Advocate Commissioner without any notice to the petitioner smacks of male fide on the part of the opposite-party and provides ample scope for suspicion and doubt as to the credibility of the said report. In this regard he has pointed out that on 29-7-68 the suit was filed and the Court by an order on the said date registered the suit and on that very date an application praying for temporary injunction against the said defendant was filed by the plaintiff-oppositeparty and the Court by the Order No, 2 of the said date issued notice to show cause upon the defendant and also ordered for maintenance of the status quo. The Order No, 3 of the same date shows that the plaintiff filed a petition praying for local inspection of the suit land by an Advocate Commissioner with a deposit of Rs, 20 for the said purpose and the Court appointed an Advocate Commissioner directing him to go to the suit premises and ascertain 'the extent and nature of work done in respect of the construction by the defendant and to submit his report by 8-8-68 and accordingly a writ was issued to the said effect. By the first order the learned Munsif fixed 8-8-69, for appearance of the defendant. I fail to understand why there was a necessity of appointment of an Advocate Commissioner on that very date 29-7-69 when there was no allegation on record with regard to the violation of the order for maintaining status quo passed by the learned Munsif. It appears from the report of the Advocate Commissioner that he went to inspect the premises on the next date, that is, on 30-7-68. First of all there was no necessity of appointment of an Advocate Commissioner on that very date which gave no occasion for possible relief on an application under Order XXXIX, rule 2(3) of the Code and secondly there was hardly any scope for such inspection by appointing an Advocate Commissioner, at point of time when only an order for maintenance of status quo was passed and show-cause notice was issued.
34. It may be argued that only to keep a watch as to the extent the construction was made by the petitioner the Commissioner was appointed but that would go counter to the terms of the order passed by the learned Munsif on the application for temporary injunction. It could be understood if after the application under Order XXXIX, rule 2(3) was filed there was also prayer for appointment of an Advocate Commissioner to inspect the place and report as to the extent of violation of the order of ad interim order for maintenance of status quo. So I do not find any relevance of the inspection and the consequent report of the Advocate Commissioner in the facts and circumstances of the case. The application alleging violation of the ad interim order for maintenance of status quo was in fact, filed on 3-8-68. So I find a great deal of forces in the aforesaid argument of the learned Advocate for the petitioner.
35. The learned Munsif has found with regard to the local inspection ordered by him to the following effect :- "P. W. 2 Md. Yusuf Khan, Advocate who was appointed Commissioner to hold local enquiry deposed that on 30-7-68, he went to the disputed house but the inmates did not give him entrance and so he got upon the building of Qtr. and found 2 new walls under progress of construction and some iron rods were being bound by labourers and he also proved his report."
36. The learned Munsif did not consider that the said Commissioner went to inspect the place without serving any notice on the petitioner and his report based on perfunctory inspection on 30-7-68, without going to the spot could have no relevance whatsoever in the matter of an application under Order XXXIX, rule 2 (3) of the Code filed on 3-8-68. It has been rightly pointed out by the learned Advocate for the petitioner that there is no finding by either of the Courts below to the effect that the petitioner on receipt of the notice of the order for maintenance of status quo, made constructions in violation of the terms as laid down in the said order dated 29-7-69 on the application praying for temporary injunction and without arriving at such a finding the impugned order of the learned Munsif cannot at all be maintained in accordance with law. After careful perusal of the judgments of both the Courts below, I am of the view that there is no such finding as pointed by the learned Advocate for the petitioner and without such finding the impugned orders cannot be maintained in accordance with law. Moreover, from the judgments of both the Courts below it appears that they found from the evidence of the witnesses that they spoke of construction by the appellant in June without having any reference whatsoever that the construction which was clearly meant not to be proceeded with in terms of the order of the learned Munsif passed on 29-7-68 on the application for temporary injunction. In that proceedings also it appears that both the Courts below did not apply their judicial mind in determining the matter in issue and as such acted illegally and with material irregularity in the exercise of their jurisdiction in arriving at their decisions.
37. The other points urged by the learned Advocate for the petitioner relating to the service of notice on the petitioner has been attacked by the learned Advocate for the opposite-party on the ground that no such objection was taken by the petitioner in the Courts below. The learned Advocate for the petitioner submits in this respect that in the written objection, the petitioner has stated with regard to the service of notice that no reply should be given as the matter was to be borne out by the records. His contention is that the service sought to be effected in this regard was before the Court which was to see whether the said service was in accordance with law or not. So the learned Advocate contends that it is a point of law and he cannot be debarred from arguing the same only because it was not specifically stated in the written objection of the petitioner that there was no service upon him in accordance with law. In support of his contention the learned Advocate has referred to the provision of Order V, rules 15 and 17 which runs as follows:-- "15. Where in any suit the defendant cannot be found and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him.
17. Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer after using all due and reasonable diligence, cannot find the defendant and there is no agent empowered to accept service of the summons, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy; the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed."
38. In this case the report of the process server shows that he did not find the petitioner in his residence and tendered the notice to the brother of the petitioner who refused to accept the same and as such he affected the service of notice by hanging the same in the conspicuous part of the petitioner's residence. Mr. Nurul Hug submits that from the report of the process-server it does not appear that he had made any enquiry to find out the petitioner although such an enquiry is contemplated under rule 17 of Order V of the Code.
39. Mr. M. A. Khalid the learned Advocate for the opposite-party, on the other hand, submits that if the report of the process server is considered as a whole, it would show that there was some enquiry made by the process server before tendering the notice to the brother of the petitioner. I have closely scrutinised the said report of the process server and I am unable to accept the contention of Mr. Khaled. Moreover the learned Advocate for the petitioner in support of his said contention referred to several decisions and I like to discuss some of them.
40. In the case of Dharam Chand Gain v. Nanak Sarkar . a Division Bench of the Calcutta High Court held that the provision of Order V, rule 15 should be strictly complied with and an enquiry should not be confined to the son of the defendant or the person related to him but attempt should be made to find out the defendant by an enquiry from his neighbours or other persons and it is essential that the requirements of the statute in these matters should be strictly carried out. In the case of Jhabarmull Dudhawalla v. Bhagatram Serowgie , it has been held that to go to a businessman's residence during business hours, when ordinarily he is away at his business premises elsewhere for the purpose of serving a summons upon him, and not finding him at his residence on call, affix the process on the outer door of the residence without making any enquiry or any attempt to find him is not due service within the meaning of Order V, rule 17 of the Code of Civil Procedure as amended by the Calcutta High Court in the case Tota v. Badri Pershad it has been held that all due and reasonable diligence must be used in the service of summons and that where the petitioner being absent the summons is affixed on the door of his house the Court is not justified in holding that there was proper service, notwithstanding previous refusal of the petitioner to accept the service with reference to the provision as laid down in Order V, rule 17 of the Code. In the case of Siraj Din v.
41. Mst. Iqbal Begum , this point was very elaborately dealt with after citing a large number of decisions of various High Courts of the sub-continent. In the said case a significant observation has been made by their Lordships which runs as follows:-- "The reports and the endorsements of the process server do not show that the appellant "could not be found". The implication of the phrase "defendant cannot be found" in Order V, rule 17 is that the whereabouts of the defendants are not known or that he is not traceable or cannot be located. This phrase cannot be applied when the whereabouts of the defendant are known or where he is actually available and can be found but otherwise evades services or keeps out of the way for the purpose of avoiding service. This is so clear from the wording of Order V, rule 20."
42. In the case of The District Board of Tippera v. Sarafat Ali and others . Ormond, J. held that Order V, rule 17 of the Code of Civil Procedure as amended in 1928 by the Calcutta High Court is applicable to this High Court and under the provision of Order V, rule 17, the service of the writ of summons by affixation of a copy of the summons on the outer door, can only be done, either under the first part of the Rule, where the defendant refuses to sign the acknowledgment, or under the second part of the Rule where several (three) conditions exist namely, firstly, the defendant must be absent from his residence at the time when service is sought to be effected on him, secondly, there is no likelihood of his being found thereat within a reasonable time, and thirdly, there must be no agent or other persons upon whom service can be made. In the case of Ibrahim v. Surendra Kumar Dhar , Zaman, J. held that what constitutes due and reasonable diligence depends on the facts and circumstances of each case, but the mere temporary absence of a defendant from his residence12 13 14 15 16 17 or place of business does not justify service by affixation and the phraseology "due and reasonable diligence" is contained in Order V, rule 17 of Code of Civil Procedure. In the case of Matiar Rehman v.
43. Haji Md. Ekramullah , Chowdhury, J. held in the facts and circumstances of the said case that the provisions of rules 15 and 17 of Order V of the Code were not complied with inasmuch as the peon had no right to effect service by hanging on the outer door of the shop of the defendant after tendering the summons to the officer of the defendant and as such there was no due service of summons on the defendant of the suit under said provisions of the Code.
44. From a close analysis of the decisions cited above, it is clear that service of summons under Order V, rule 17, without making any diligent enquiry as to the whereabouts of the defendant cannot be regarded as due service under the said provision. The said principle of law as enunciated in the aforesaid cases fully apply in the facts and circumstances of the instant case before me and I find substance in the contention of the learned Advocate for the petitioner and hold that there was no legal service of notice with regard to the ad interim order as to maintenance of the status quo passed by the learned Munsee on the defendant and in that score also this Rule has to succeed.
45. In the result, this Rule is made absolute. The judgments and orders passed by both the Courts below are set aside and the application under Order XXXIX, rule 2(3) of the Code of Civil Procedure is rejected.
46. In the facts and circumstances of the case I made no order as to costs.
47. The connected rule No, 265 (S M) of 1970 has become infructuous and it is accordingly discharged without any order as to costs. 5 D L R 351 7 D L R 627 20 C L J 341 PLD 1961 Dacca 243 21 D L R 478 AIR 1940 Mad. 934 33 C W N 781 (P C) AIR 1953 SC 431 PLD 1960 Lah. 469 18 D L R 384 AIR 1961 SC 221 AIR 1921 Cal. 638 51 C W N 189 AIR 1930 Lah. 192 PLD 1968 Lah. 639 3 D L R 317 9 DLR 16 PLD 1961 Dacca 781