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Law report

No party can take advantage of pending matters
High Court Division (Admiraltyjurisdiction), AdmiraltySuitNo. 12 of2002, Md. MobashedHossain,
Vs
Saidur Rahman (Pvt) Ltd,
Before Mr. Justice A.B.M. KhairulHaque.
Date ofJudgment: May15, 2002.
Judgment
ABM, Khairul Haque, J: This is an application for an order of mandatory injunction, praying for recovery of possession of the vessel M.V. Hemayetudin, M No 6304, from the possession of the defendant company. The defendant company allegedly took over the said vessel in violation of the order of ad-interim injunction passed by this Court on 2nd April 2002.
The facts leading to the filing of this petition are that the plaintiff petitioner earlier filed the instant suit for declaration, injunction and compensation with a prayer for temporary injunction to restrain the defendant from taking over the possession of the aforesaid vessel, namely, M.V. Hemayetuddin. And this court by its order dated 2nd April, 2002, issued a notice upon the defendant to show cause as to why an order of temporary injunction should not be passed restraining it from taking over possession of the vessel till disposal of the suit and pending hearing of the said petition the defendant was so restrained by an order of ad-interim injunction.
Subsequently, the plaintiff petitioner filed an application on 10.4.2002 for an order of mandatory injunction praying for recovery of possession of the said vessel, from the defendant no. 1 who took over possession of the said vessel by allegedly violating the order of ad-interim injunction passed by this Court on 2nd April, 2002.
Mr. A.F.M.A. Rahman the learned Advocate appearing on behalf of the plaintiff petitioners submits that although the notice of the order of ad-interim injunction passed by this court restraining the defendant no. 1 from taking over possession of the vessel M.V. Hemayetuddin was duly served upon the defendant company on 4th April, 2002, by a special messenger. But while after completion of its discharge of cargo on 2nd April 2002, on the direction of the plaintiff the vessel left Barisal on 5th April 2002 and subsequently reached Gazaria on 7th April 2002. That on the instructions of the plaintiff-petitioners a cargo of sand was being loaded in the vessel which stayed beside the launch ghat at Gazaria and till midnight 16,900 cft. sand was loaded, that cargo of sand, was purchased by one Harun-or Rashid at a price of Tk 1,18,300/- to be delivered at Barguna on the following day. And in order to meet the necessary expenses, the plaintiff-petitioners paid the master of the vessel, the opposite-party no.2, an amount of Tk 49,600/- towards purchase of fuel and other necessaries. But the opposite party nos. 2 and 3 without any information to the plaintiffpetitioners, left Gazaria launch ghat at the very early morning on 8th April 2002. That the plaintiff-petitioner no. 2 could not find the vessel, as such, rushed to Dhaka and inquired about the whereabouts of the vessel at the private terminal of the defendant opposite party no.1 at Kaliganj within the police station Keraniganj. That on inquiry the plaintiff opposite-party no.2 could learn from the opposite party no.2 that on the orders of the defendant opposite party no. 1, they left Gazaria to his domain without informing the plaintiff-petitioners.
The learned Advocate further submits that thereafter the plaintiffpetitioner no. 1 went to meet the Managing Director of the defendant opposite party no.1 at this office at Motijheel but he misbehaved with him with filthy language as he filed the instant suit. The learned Advocate submits that inspite of the receipt of the order of this Court, restraining the defendant from taking over possession of the vessel, the defendant in defiance of the order of this Court directed the master to take the vessel to the private terminal of the defendant, and since inspite of the order of injunction passed by this Court, the defendant illegally took possession of the vessel as such, in the interest of justice, the said vessel should be put back to the possession of the plaintiffs under the inherent jurisdiction of this Court.
Deliberation
At this stage, in disposing the petition praying for an order of mandatory injunction for recovery of the vessel, I do not intend to express any opinion as to whether contract of hire of the vessel in question was terminated or not and even whether a suit in personam is maintainable or not.
Mr Khan Saifur Rahman admits that the defendant company received the said order of this Court on 4th April, 2002. This was also admitted in the written objection. It is not denied that the concerned vessel was under the possession of the plaintiff-petitioners but contended on behalf of the defendant that the plaintiff-petitioners themselves voluntarily released the vessel.
After obtaining an ad-interim order of injunction and loading the vessel with sand, how far the contention that the plaintiff petitioner themselves released the vessel is correct, will be considered at the proper time, but it is not necessary to do so in disposing of this petition. As such, when specifically asked as to why the order of mandatory injunction should not be granted to restore the status quo at the time of institution of the suit, the learned Advocate was without any answer save and except that an order in the nature of mandatory injunction is not maintainable in the facts and circumstances of this suit.
In this case, it was alleged that in violation of the charter agreement the defendant directed return of all three vessels and two of the vessels accordingly had already returned. In such a situation this Court by an order of ad-interim injunction restrained the defendant from taking over possession of the concerned vessel, namely, M.V Hmayetuddin. But as it appears, the said vessel also left the domain of the plaintiff inspite of such an order on the morning of 8th April 2002. The responsibility for violation of the order of this Court will be considered in the separate proceedings field by the plaintiff-petitioners, under Order XXXIX rule 2(3) of the Code. In this matter, only the question as to whether the vessel will be directed to returned to the plaintiff-petitioners or not, will be considered.
It is now well settled that one of the purposes, among others, of issuing an order of ad-interim injunction is to maintain status quo ante at the time of institution of the suit until the prayer for temporary injunction is disposed of.
In the instant case, at the time of admitting the suit for hearing on 2nd April, 2002, on the prayer of the plaintiffs, by an order of ad-interim injunction, the defendant was restrained from taking over the possession of the third vessel, namely, M.V. Hemayatuddin. Because it was felt that a fair and substantial question as to the rights and obligations of the parties has to be decided. And it was felt desirable that until hearing of their prayer for temporary injunction is disposed of the status quo should be maintained so as not to allow the defendant to take away the third vessel also. But when the possession of the said vessel was taken from the plaintiffs in defiance of the order of the Court, the proper administration of justice
requires that in exercise of its inherent power the defendant ought to be directed to return the vessel to the plaintiffs till hearing of their petition dated 2.4.2002 for temporary injunction. Because a Court of law is not that powerless to watch and be remain a mere spectator to such defiance.
The necessity for exercising such inherent jurisdiction by the Court has been correctly explained by Ahmed, J. in the case of The State of Bihar V. Usha Devi AIR 1956 Patna 455, in the following manner:
"If a court comes to the conclusion that an order passed under 0. 39, R.1 or 2.2 have been disobeyed and by a contravention of that order the other party in the suit has done something for its own advantage to the prejudice of the other party, it is open to the Court under inherent jurisdiction to bring back the party to a position where it originally stood as if the order passed by the court has not been contravened. The exercise of this inherent power vested in the court is based on the principle that no party can be allowed to take advantage of his own wrong in spite of the order to the contrary passed by the Court."
This question of issuing an order of injunction has been considered by the Supreme Court in the case ofAbdul Jalil Munshi V. Abu Bakar Siddique 35 DLR AD (1983) 42. In that case, on the prayer of the plaintiff the learned Munsif passed an order of ad-interim injunction restraining the defendant from blocking the alleged passage but on appeal, the order was stayed but before the appeal could be heard, the defendant raised a wall blocking the disputed passage. In revision, the learned Judge of the High Court Division granted a mandatory injunction directing the appellant to remove the said structure within seven days. The Supreme Court in appeal, upon considering the principle underlying and the condition justifying, the making of an order of mandatory injunction in an interlocutory proceeding upheld the judgment of the High Court Division. DC Bhattacharya, J. on behalf of the Supreme Court at paragraph 12 propounded the principle as follows:
In issuing an order of restraint in the nature of a mandatory injunction, whether it should be passed under Order XXXIX Rule 1 or 2 on in exercise of the inherent jurisdiction of the Court under Section 151 of the Code, the Supreme Court held that either of the provisions may be applicable, depending on the facts and circumstances of each case.
The learned Judge explained so in paragraph 14: "Injunction is a kind of equitable relief and shall have to be adjusted in aid of the equity and justice of a particular case with reference to its own facts and circumstances. There may be cases where it is possible to frame a restraint order having the effect of a mandatory injunction under Rule 1 or Rule 2 of Order 39 of the Civil Procedure Code. But in the facts of the instant case, the more appropriate jurisdiction under which the necessary injunction may have been issued appears to be the Courts inherent jurisdiction to do justice
Decision
It is admitted that the notice restraining the defendant from taking over possession of the vessel, namely, M.V. Hemayetuddin M No. 6304 was served upon the defendant company on 4th April, 2002. The purpose of the said order of ad-interim injunction was to maintain status quo at the time of institution of the suit in the background of allegations that the defendant in violation of the agreement directed return of all the vessels from the possession of the plaintiffs. And as a matter of fact two had already been so returned to the defendant. The defendant, as it appears, admitted that inspite of receipt of the said order of this Court, the vessel left the plaintiff-petitioner, obviously in violation of the order passed by this Court on 2nd April, 2002. The liabilities, if any, of the concerned persons in respect of such disobedience of the order of injunction, will be considered in another pending proceedings, filed under Order XXXIX Rule 2(3) of the Code. But in this case, the vessel should be brought back to the place, by an order in the nature of mandatory injunction, from where in violation of the interim order, it left the plaintiff-petitioners, so as to disentitle and disengage the defendant from reaping any benefit out of its own wrong committed in defying the order of the Court. Besides, the majesty of law and the dignity of the Court requires such a mandatory order to put the vessel in the possession of the plaintiff-petitioners where it was at the time of institution of the suit and the same is hereby granted.
Under the circumstances, let a mandatory injunction be issued upon the defendant company, directing it to return the vessel M.V. Hemayetuddin at the launch ghat at Gazaria, where it was in the morning of 8th April, 2002, within seven days from date.
Mr. A F M. A Rahman is advocate for the petitioner and Mr. Khan Saifur Rahman, Senior advocate, for the respondent No 1.