All we need to know about Special Suits
" Partnered by Barrister Tahmidur Rahman and Barrister Remura Mahbub, Tahmidur Rahman Remura is considered as one of the best law firms in Bangladesh. As the best law firm in Dhaka, Tahmidur Rahman Remura has developed into one of Bangladesh’s most cutting-edge and modern law firms by fusing its more than five years of legal tradition with cutting-edge global best practices. With offices already established in internationally significant cities, the firm aim to continue our global expansion.
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It is generally seen that the procedure which is laid down for all suits are same and uniform. But there also exists certain suits which have different kind of circumstantial arrangement and calls for specific kind of procedure. These bring the requirement for procedure laid down for special suits. The Code of Civil Procedure provides for such procedure under provisions laid down in sections 79 to 93 along with Order XXVII to XXXVII.
Basically special suits can be of various kinds. Dealing with suits which are instituted by or against Government, public or state is within itself a horrendous task. It has been provided that for such a suit against the government a notice shall be served having a limitation period of two months. While the procedure for a suit to be instituted by the Government, the plaint or written statement shall be signed by any person appointed by the Government to do so. But it is also to be kept in mind that such a suit to be instituted against a Peron appointed under Government must be working under his official capacity when such cause of action arose.[1]
Where as a suit which is instituted or filed against an alien also calls for a special procedure. Alien enemies, who are residing in Bangladesh with the permission of the Central Government, and alien friends, may sue in any court otherwise competent to try a suit, as if they were citizens of Bangladesh. It is also provided under section 83 that Alien enemies residing in Bangladesh without such permission or residing in a foreign country, cannot sue in any court. One the contrary, in case of a suit by or against foreign rulers, ambassadors and envoys, it is provided that a foreign state may sue in any competent court, provided that such suit is for the enforcement for a private right vested in the ruler of that state or in any office of such state in his public capacity.[2]
In the case of any suit by or against the Ruler of any former Bangladeshi state which is based wholly or partly upon a cause of action which arose before the commencement of Constitution the same can be filed in accordance with the provisions in relation to the suits by or against foreign Rulers, ambassador and envoys as provided under Section 87-B. In case of any soldier, sailor or airman, if any of them is a party to a suit who is in actual service, and is unable to obtain leave for prosecuting or defending the suit in personam, he may authorise any person to sue or defend him.[3]
In case of a suit by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary, or any director or other principal officer of the corporation who would able to despose the facts of the case and the court may at any stage of the suit shall require the personal appearance of any of the officers who may be able to answer the material questions relating to the suit.[4]
In suits between strangers and persons beneficially interested in the property vested in trustees, executors or administrators, it is not necessary to join the beneficiaries as parties to the suit. Therefore, they can be presented by trustees, executors and beneficiaries as the case may be. It has also been provided that the court has discretion, if it thinks fit, to order all or any of the beneficiaries to join as parties to the suit.[5]
The most important provisions as are laid down for suit by or against minors and lunatic are provided under Order XXXII. These provisions are similar to each other. It is provided that every sit by minor should be instituted in his name through his guardian or his next friend. In case, if such a procedure is not followed then the plaint will be taken off the file. While in case where the suit is instituted against a minor, the court should appoint a guardian ad litem to defend the suit. In regard to appointment of a guardian of a minor or lunatic person, it has been observed that any person who has attained the age of majority and is of sound mind may act as a guardian or next friend which a proviso that his interest is not diverse to that of minor t the same time who is not the opposite party in the suit. While the prerequisite is that his consent must be obtained in writing to act as a guardian or a next friend.
Suit by indigent person who is also called as pauper are provided under Order XXXIII. The requirement of this provisions were realised to solve mainly three intents including protection of bonafide claims of an indigent person, safeguarding interests of revenue and lastly, for the protection of defendant against harassment.
The suits wherein the real dispute is not between a plaintiff and a defendant but between the defendants who interplead against each other are known as inter pleader suits. The procedure for the same has been laid down under section 88. There are also suits concerning family matters which are peculiar in nature itself because the court always intents to reach towards an amicable settlement under Order XXXII-A.
Other special suits are suits relating to constitutional validity of statutory instrument under Order XXVII-A which provides for notice to attorney General of Bangladesh. Mortgage suits under Order XXXIV provide suits for foreclosure, sale and redemption. Summary suits are also considered special suits and are based on negotiable instruments or where the plaintiff seeks to recover debt or liquidated amount. Section 91 provides for suits relating to public nuisance which calls for suits which affects the public at large. There are many suits of special nature but the paramount consideration must be taken by court in identifying such nature and likewise take the effect, which shall serve the interest of justice.
References
[1] Section 79 to 82
[2] Section 84
[3] Order XXVIII
[4] United Bank of Bangladesh v. Naresh Kumar AIR 1997 SC 3
[5] Order XXXI
