LEAKAT ALI SOWDAGAR Vs. ABDUS SALAM SOWDAGAR
LAWS(BANG)-1976-12-1
SUPREME COURT OF BANGLADESH
Decided on December 07,1976

Leakat Ali Sowdagar Appellant
VERSUS
Abdus Salam Sowdagar Respondents

JUDGEMENT

DEBESH CHANDRA BHATTACHARYA, J. - (1.) These two petitions for special leave to appeal are against a judgment of a single Judge of the High Court Division discharging two rules issued on two applications of the petitioner under section 25 of the Small Cause Courts Act, preferred against the decrees passed in Small Cause Courts suit Nos. 12 of 1972 and 11 of 1973 brought by the respondents against the petitioner.
(2.) Respondents brought the aforesaid two suits against the petitioner for realisation o: arrear house rent of a certain premises on the allegation that the petitioner was a monthly tenant under the Respondents in respect o the said premises. The petitioner contested the two suits denying the relationship of land lord and tenant between them and contending, inter alia, that he had acquired non-agricultural tenancy right in the land of the said premise; by the peaceful possession of the said land for more than 12 years in exercise of his right as a non-agricultural tenant. The learned Small Cause Court Judge who tried the said suit; came to the finding, on a consideration of the evidence on record, that the respondents has got their title to the suit premises and that the defendant was a monthly tenant under the respondent in respect of the said premises and decreed the two suits on the basis of the said finding. The petitioner obtained two rules from the High Court Division on his application under section 25 of the Small Causes Courts Act against the aforesaid decree. It was contended before the learned Judge that in view of section 3(1)(a) of the Conciliation Courts Ordinance, 1961 read with section B(1) of part I of the schedule thereto, the suit were exclusively triable by a Conciliation Court constituted under the said Ordinance. And as such the suits were incompetent. It was also submitted that having regard to the provisions of section 23 of the Small Causes Courts Act, the learned Small Cause Court Judge committed an error in having gone into the complicated question of title which was involved in the suit. The further contention raised before the High Court Division was that the learned Small Causes Court Judge should have held, on the materials produced before him, that the petitioner was a non-agricultural tenant under the original owner and that there is no relationship of tenant and landlord between him and the respondents. The learned judge repealed all the contentions raised on behalf of the petitioner and declined to exercise his revisional jurisdiction under section 25 of the Small Cause Courts Act.
(3.) Mr. B. B. Roy Chowdhury, learned counsel for the for the petitioner, urged before this court the same contentions as were raised before the High Court Division and submitted that the learned Judge was not correct in rejecting the said contentions. Learned counsel has submitted that the Conciliation Courts Ordinance having specially provided in sec 3(1) that, notwithstanding anything contained in the Code of Civil Procedure, 1908, all cases falling under the relevant part of the schedule shall be referred to conciliation under the Ordinance and that no Civil Court shall gave jurisdiction to try any such case, the learned judge of the High Court Division should have held that the jurisdiction of the Small Cause Court has been effectively ousted, despite the fact that the procedure for conciliation has been put into abeyance in view of the dissolution of all legal council and Municipal Committees in Bangladesh by virtue of Article 3 of Presidential Order No. 7 of 1972. Learned Counsel has referred to Article 4 of the Presidents Order which provides for a committee for exercise of the powers and performance of the functions of the dissolved Local Councils or Municipal Committees and has contented that although no such committee, as envisaged in the Article, has been appointed ouster of jurisdiction as has been provided in section 3 of the Conciliation Ordinance has not in any way, been affected. We do not think that the learned counsel is correct in his contention. The provision of section 3(1) shall have to be read as a whole along with other relevant provisions of the Ordinance, namely section 4, which provides for making an application for constitution of Conciliation Court; section 6, prescribing the conditions for the exercise of jurisdiction by Conciliation Court, and section 10, lying down that a party to the dispute may seek his remedy in the ordinary court on failure of the conciliation and a certificate being issued on such failure. It will be clear that the provision for ouster of jurisdiction, as contained in section 3(1) of the Ordinance, is very much connected with the earlier provision in that section relating to the reference to conciliation under the Ordinance. The ouster of a civil Courts Jurisdiction is linked up with the setting up of an alternative machinery for the conciliation of the dispute. The provision for conciliation having failed to be operative on account of the non-existence of the necessary machinery for such conciliation, it is reasonable to hold, on a proper construction of section 3(1) of the Ordinance, that the general jurisdiction of a Civil Court is not affected under such circumstances. In that view of the matter we do not think that the learned Judge was wrong in his view that in the facts of this case the learned Small Cause Court Judge had the necessary jurisdiction to try the suits in question. ;


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