Delay in the lower judiciary vis-à-vis stay by HC
Who to blame?
Barrister Moksadul Islam
At times the Supreme Court (SC) has no other option but to stay an order of the lower judiciary as an interim measure before the matter is heard at length in presence of both the sides. Usually it will be a temporary order and apparently for a limited period. However before the expiry date all such temporary orders of stay can be extended very easily. As a result these temporary orders may last even for decades. On many occasions it is stayed till deposal of the Rule. Whatever may be the case it actually is a permanent stay order and that continues till the matter is heard completely.
One of the main causes of delay in the justice delivery system is the proceedings of the original jurisdiction i.e. lower judiciary are being stayed by the higher judiciary for long time. On many occasions it may have been done on flimsy grounds or may be even though actually (or legally) there was no ground at all. Should we say it was granted by the court very summarily or obtained by the learned Advocate on flimsy grounds or even by misleading the court? For the purpose of this write up 'granted' would also mean 'obtained' and both the words would be used interchangeably.
On many occasions an order of stay serves the purpose of the party in whose favour it has been granted even though it apparently was a temporary order. Sometimes an order of stay may also give him complete benefit of the case.
Usually the order of stay should correspond to the Rule. Some variation, depending on the nature of the dispute, may be allowed. However on some occasions the prayer for an order of stay is framed in such a manner that it virtually stays the entire proceeding of the lower court ignoring the Rule. Let us see how an order of stay granted by or obtained from the High Court (HC) is obstructing justice in thousands of cases in the lower judiciary by examining a true story.
A lady was unlawfully evicted from her house and she sought protection of law in the lower judiciary. She won both in the Courts of Senior Assistant Judge and District Judge of the lower judiciary. Subsequently she also won her case in the High Court Division and also in the Appellate Division [12 BLT (AD)]. Appellate Division observed that “on perusal of the materials on record it is seen that the Courts of facts in the background of the materials on the record were satisfied that defendants dispossessed the plaintiffs from the land … taking advantage of the order of stay that was passed by the High Court Division …. In that state of the matter we are of the view High Court Division has committed no error in refusing to interfere with the order of learned District Judge passed in the Miscellaneous Appeal affirming the order of the learned Assistant Judge allowing the prayer for mandatory injunction and thereupon making direction to the defendants to vacate the land of 'Kha' schedule and to restore possession thereof to the plaintiffs”.
Accordingly eviction order was given in favour of her. However in the execution stage various unreasonable applications were filed in the lower judiciary by the other side and all of them were eventually refused or dismissed. Now she is about 80 and was longing to enter into that house after more than a decade since she was evicted. However surprisingly on the 31st August 2006 an order staying the entire proceeding of the main suit has been granted by or obtained from the HC. Excuse me but how (it was obtained)? Excuse me but why (it was granted)? The lady wanted to know. Was the order of stay obtained or granted? May be it was both.
It was obtained by the learned Advocate as he misled the court by not informing that the matter has already been disposed of by the Appellate Division and by drafting a vague application and also by framing the prayer deceitfully. May be it was granted by the HC hastily as upon a reasonable reading of only couple of initial paragraphs of the application it would reveal that there are gaps in between lines and paragraphs of the said application. It also refers a case called Miscellaneous Judicial Case. However what is a Miscellaneous Judicial Case? Apparently the Rule was issued or obtained regarding that Miscellaneous Judicial Case then why an order of stay of the entire proceedings? Was there any prima-facie arguable case for staying the entire proceedings of the lower judiciary after 15 years?
The lady has signed different kinds of powers at different stages of this case during the last 15 years. Recently when she was asked to sign another power again for the HC she could not remember whether she signed the earlier powers in Bangla or in English. She also could not remember the surname she used (as she uses both Khatun and Begum) in signing those powers. She also was not sure whether she used her title in those powers. Her hand was trembling because of her age. She barely managed to scribble her signature in the power and she does not think it would match with her earlier signatures. She was sorry and asked forgiveness for that. Now the question is will she be able to enter her house before she dies? Who should be blamed for this delay? The learned advocate who obtained the order of stay by misleading the court? Could we also dare to blame the court for granting the order of stay? I guess not. There must be a good ground with sufficient evidence before an order of stay is granted.
No proceedings of the lower judiciary should be stayed in hurried manner. Otherwise someone may interpret that our higher court is mainly responsible for delaying thousands of cases in the lower judiciary. We must also formulate a way of disposing an application for staying proceedings of the lower judiciary within a reasonable time. It must be a mandatory requirement. If it is not disposed of within such specified time all such stay order should stand vacated automatically.
This is a fortnightly column and the columnist is an advocate of the Supreme Court, Bangladesh, who can be reached at email@example.com