IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

                        Present:

Mr. Justice Md. Mozibur Rahman Miah

                             and

 [

Mr. Justice Md. Bashir Ullah

Civil Revision No. 5964 of 2024

  In the matter of:

An  application  under  Section  115(1)  of  the  Code  of            Civil Procedure, 1908

                   And

  In the matter of: 

Mahtab Uddin Ahmed

                                        --- Plaintiff-Petitioner.

-Versus-

  Robi Axiata Limited and others

                               --- Defendants-Opposite parties.

                       Mr. Ashfaqur Rahman, Advocate

                    ---For the petitioner.

Mr. Mamun Chowdhury, Advocate with Mr. Suhan Khan, Advocate

Mr. Rabiul Ahmed, Advocate

Mr. Sayedul Munim, Advocate

Mr. K. M. Shahidul Islam, Advocate

--- For the opposite party No. 1

Heard on 14.01.2025 Judgment on: 15.01.2025

Md. Bashir Ullah, J.

 At the instance of the Plaintiff in Title Suit No. 568 of 2022, this Rule was issued calling upon the opposite party no. 1 to show cause as to why the Order No. 25 dated 28.11.2024 passed by the learned Joint District  Judge,  First  Court,  Dhaka  in  the  aforesaid  case  fixing  on 26.02.2025 for hearing of the petition filed for push forward the date for peremptory  hearing  by  not  entertaining  the  plaintiff  petitioner’s application filed on 28.11.2024 pursuant to the order dated 24.04.2024

passed by this Court in Civil Revision No. 1313 of 2024 directing the trial Court to dispose of the suit as expeditiously as possible preferably within a period of 3(three) months from the date of receipt of the copy of the judgment should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

The salient facts, relevant for the disposal of the Rule are:

The plaintiff-petitioner is a former Chief Executive Officer (CEO) and Managing Director (MD) of Robi Axiata Limited, who joined the company as its Chief Financial Officer (CFO) on 02.09.2010. Later, he was  appointed  as  its  Managing  Director  (MD)  and  Chief  Executive Officer  (CEO)  on  01.11.2016  under  a  contract  of  employment. Thereafter, the said contract of employment of the plaintiff was extended from time to time, and lastly, it was extended on 31.10.2019 for a period of 2(two) years. The plaintiff served three months’ notice of resignation on 02.08.2021 as required by the said contract of employment, which became effective on 31.10.2021. This was also approved by the Board of Directors of the company duly signed by the Chairman of defendant    no. 1. Thereafter, the plaintiff contacted to the defendant no. 1 vide email  and  letter  dated  16.11.2021  stating  that  despite  his  repeated reminders regarding settlement of all arrear service and other benefits, nothing was paid to him even though, he was assured that he would receive settlement payments prior to 31.10.2021 that is prior to the end of  his  contract.  However,  there  was  no  such  settlement  even  after repeated verbal and written persuasions. Subsequently, the plaintiff was paid  a  fraction  of  the  outstanding  payment  amounting  to  Taka

3,40,66,946.07 through a pay order dated 06.12.2021. He received the pay  order  ‘on  protest’  due  to  such  part  payment.  The  rest  of  the outstanding payment remains unpaid to date. Just at the fag end of his service with defendant no. 1, a show-cause notice on 07.10.2021 was served on the plaintiff raising some issues. The plaintiff replied to the said  show-cause  notice  on  14.10.2021  denying  all  the  material allegations.  Upon  conducting  a  departmental proceedings  against  the plaintiff  for  over  7(seven)  months,  without  giving  any  proper opportunity for hearing, defendant no. 1 then sent a letter on 22.05.2022 to the plaintiff stating inter alia, that the Board had resolved that the plaintiff  would  stand  dismissed  from  his  service  for  the  alleged misconduct with effect from 31.10.2021. Hence, the plaintiff instituted the suit.

The defendant-opposite party no. 1 contested the suit by filing a written statement, stating inter alia that the plaintiff was dismissed by the defendant no.1 finding misconduct perpetrated during his tenure as Managing Director and CEO of defendant no. 1. The Plaintiff, while in office  as  the  Managing  Director  and  CEO  in  2019  committed misconduct,  violated  Code  Conduct  and  Business  Ethics,  rules  and regulations  of  the  company  and  breach  of  employment’s  terms  and conditions. Hence, the suit is liable to be dismissed.

During  trial,  the  defendant-opposite  party  no.  1  filed  a  civil revision  being  Civil  Revision  No.1313  of  2024  before  this  Court challenging the Order No. 10, dated 12.11.2023 passed by the trial Court framing issue on accepting all suggested issues of the plaintiff without considering the plaint and written statement. However, upon hearing the parties, this Court disposed of the Rule issued in Civil Revision No. 1313 of 2024 vide judgment and order dated 24.04.2024 and directed the trial Court to frame issues so proposed by the defendant no. 1 in addition to  the  issue  already  framed  and  further  directing  the  trial  Court  to dispose of the suit as expeditiously as possible preferably within a period of 3 (three) months from the date of receipt of the copy of the judgment.

Upon receipt of the above-mentioned judgment, the trial Court framed  additional  issues  and  fixed  the  next  date  on  14.04.2024  for peremptory  hearing.  Thereafter,  several  dates  were  fixed  that  is,  on 25.07.2024,  08.08,2024,  27.08.2024,  18.09,2024,  05.11.2024  and 26.11.2024.  On  26.11.2024,  the  trial  Court  fixed  the  next  date  on 26.02.2025. Being aggrieved, the plaintiff then on 28.11.2024 filed an application for shifting the next date and to fix it to an early date. However, upon hearing, the trial Court fixed on 26.02.2025 for hearing of the said application, vide Order No. 25, dated 28.11.2024.

Being  aggrieved  by  and  dissatisfied  with  the  said order  dated 28.11.2024, the plaintiff as petitioner preferred this Civil Revision and obtained Rule.

Mr. Ashfaqur Rahman, learned Advocate appearing on behalf of the petitioner upon taking us the impugned order at the very outset submits that, on the face of the impugned order it shows that it is simply a non-speaking order as without assigning any reason, the learned Judge in  a  very  perfunctory  and  cursory  manner  fixed  on  26.02.2025  for hearing  of  the  application  and  thereby  committed  an  error  of  law resulting in an error in the decision occasioning failure of justice.

Mr. Rahman further contends that pursuant to the direction of this Court, passed in Civil Revision No. 1313 of 2024 on 24.04.2024, the trial Court used to fix date giving short duration, however, the trend of giving dates following 26.11.2024 clearly shows that the trial Court started giving long date as it on 26.11.2024 fixed  the next date for further hearing (FH) of PW-1 on 26.02.2025 that is, after 92 days from 26.11.2024 which is a clear violation of the direction of this Hon’ble Court to dispose of the suit expeditiously. The learned counsel further contends  that  plaintiff-petitioner  filed  an  application  on  28.11.2024 before the trial Court for push forward the date from 26.02.2025 to an early date and to fix the next date in 7-10 days’ interval yet the trial Court did not bother to pass any order on that application rather fixed the hearing of the said shifting application on 26.02.2025 which proves the absent mind of the learned Judge over the issue and that cannot be sustained in law.

He next contends that this Hon’ble Court was pleased to direct the trial  Court  to  dispose  of  the  suit  as  expeditiously  as  possible “preferably” within a period of 03 (three) months and, as such, the trial Court ought to have fixed the date of hearing of the suit giving short duration so that the suit can be disposed of within a short span of time but the impugned order dated 28.11.2024 clearly runs counter to the said direction and thus liable to be set aside for ends of justice. The learned counsel also submits that since the hearing of the suit began upon taking evidence of PW-1, so it should be continued from day to day until all the witnesses in attendance is examined as per the proviso of Rule 1(2) of Order 17 of the Code of Civil Procedure but the trial Court failed to comply with the said provisions of law and finally prays for making the Rule absolute by setting aside the impugned order.

Conversely, Mr. Mamun Chowdhury, learned Advocate appearing on  behalf  of  the  defendant-opposite  party  no.  1  by  filing  a  counter affidavit contends that the trial Court committed no error of law resulting in an error in the decision occasioning failure of justice in passing the impugned order and there is nothing to interfere the impugned order and as such the rule is liable to be discharged.

He further contends that scheduling dates in a suit is a matter of discretion of the Court and the trial Court has exercised its discretion fixing dates in a reasonable manner and in line with that on 26.11.2024, the  trial  Court  fixed  the  next  date  of  further  hearing  of  PW-1  on 26.02.2025 in presence of both the parties having no reason to become aggrieved by the petitioner however, though the plaintiff-petitioner, filed an application for shifting the next date in the proceedings to an earlier date, but no copy of the said application was served upon defendant   no.1 which is an unusual practice and hence the trial Court has rightly passed the impugned order.

Learned counsel next contends that the trial Court in pursuance to the judgment and order dated 24.04.2024 passed by this Hon’ble Court in Civil Revision No. 1313 of 2024 framed additional issues and then fixed  on  14.07.2024  for  peremptory  hearing  but  the  plaintiff  on numerous occasions sought adjournments and delayed the process of the Court while the defendant no. 1 fully complied with the said direction and did never seek any adjournment so it is the plaintiff-petitioners whose fault the proceeding of the suit is being delayed. With those submissions, the learned counsel finally prays for discharging the Rule.

 We have considered the submissions so advanced by the learned Advocates for the petitioner and that of the opposite party at length and perused the Civil Revision, counter affidavit, impugned order passed by the trial Court, and other materials on record.

While this Court disposed of the Rule in Civil Revision No. 1313 of 2024 by judgment and order dated 24.04.2024, it directed the trial Court which runs as follows:

“The  learned  Judge  of  the  trial  Court  is  hereby directed  to  frame  the  issues  so  proposed  by  the defendant in addition to the issues, the learned Judge already  framed  and  to  dispose  of  the  suit  as expeditiously  as  possible  preferably  within  a period of 3(three) months from the date of receipt of the copy of this judgment.”

The  above-mentioned  direction  was  however  not  challenged before the Appellate Division.

Further, record shows that upon receipt of the above-mentioned direction the trial Court framed additional issues and fixed 14.04.2024 for peremptory hearing. Thereafter, the dates were fixed on 25.07.2024, 08.08,2024,  27.08.2024,  18.09,2024,  05.11.2024  and  26.11.2024.  On 26.11.2024, the next date was fixed on 26.02.2025 for further hearing. Being aggrieved, with the fixing of long date, the plaintiff-petitioner filed an application on 28.11.2024 for shifting the next date to an earlier date. However, upon hearing, the trial Court vide impugned order dated 28.11.2024  fixed  26.02.2025  for  hearing  of  the  said  application.  It appears  on  26.11.2024,  the  next  date  was  fixed  on  26.02.2025  for hearing (FH) of the suit that is long after 92 days which is clear violation of the proviso of Rule 1(2) of Order 17 of the Code of Civil Procedure and which is totally unbecoming and improper on the part of the learned Judge for not applying his judicial mind on the express provision of law and the direction of this Court. The trial Court ought to have fixed the date of hearing in short duration so that the suit can be disposed of at the earliest  opportunity  upholding  the  spirit  of  the  provision  of  law  as mentioned above and direction of this Court made in Civil Revision No. 1313 of 2024.

Given the above facts and circumstances, we are inclined to set aside the impugned order finding it to be totally contrary to the proviso of Rule 1(2) of Order 17 of the Code of Civil Procedure and illogical which we find to be fixed on 02.02.2025 instead of 26.02.2025. Hence, the impugned order is thus unreasonable and not sustainable in law and the same is liable to be set aside.

Overall, we find substance in the Rule.

Accordingly,  the  Rule is  made  absolute,  however  without  any order as to cost.

The  impugned  order  No.  25  dated  28.11.2024  passed  by  the learned Joint District Judge, First Court, Dhaka in Title Suit No. 568 of 2024 is hereby set aside.

The trial Court is directed to take up the suit for re-examination of PW-1(FH) on 02.02.2025 and continue examination of the witness of the parties in usual course complying with the proviso of Rule 1(2) of Order 17  of  the  Code  of  Civil  Procedure  and  dispose  of  the  suit  as  expeditiously as possible.

Let a copy of this order be communicated to the court concerned forthwith.

Md. Mozibur Rahman Miah, J.

I agree.   

Md. Sabuj Akan/ Assistant Bench Officer