Order I rule 3—
The term 'proforma' means for the sake of form only. The expression 'proforma' does not appear in any provision of the Code of Civil Procedure. The terms are only 'plaintiff and 'defendant' and no 'proforma' in the said Code.
Bangladesh Power Development Board vs Sonali Bank 40 DLR 340.
Order I rule 3—
Proforma defendants-The decree would be binding upon the proforma defendants though passed in their absence-The plaintiff and the PDB though a proforma defendant, fought out the suit clearly understanding the issues and the claim they were making against each other.
Bangladesh Power Development Board vs Sonali Bank 40 DLR 340.
Order I rule 3—
A party though described as proforma in a suit would be bound by a decree passed in his presence after he has contested the suit by filing a written statement making an adverse claim against the property in the suit.
Bangladesh Power Development Board vs Sonali Bank 40 DLR 340.
Order I rule 3—
Non-contesting proforma defendants would not be bound by the decree if they were not necessary parties and if no relief is sought against them. The decree passed in the money suit in the presence of the proforma defendants would be binding upon them, though they were proforma only.
Bangladesh Power Development Board vs Sonali Bank 40 DLR 340.
Order I rule 3—
Defect of PartyImpleading of a nationalised company placed under a corporation whether constitutes defect of party-Defendant No. 1 is a nationalised company placed under a corporation renamed as Bangladesh Steel and Engineering Corporation. The company has not thereby lost its legal entity as a juristic person. It can sue and be sued without the corporation which controls the defendant company under Persident's Order 27 of 1972 and, as such, the suit in question could proceed against the defendant No. 1 without impleading the corporation.
Progati Industries Ltd vs Shahida Khatun 43 DLR 29.
Order I rules 3 and 4-
All person may be joined as defendants claiming relief against all, there being a common question of fact and law involved.
Bangladesh Railway vs Messrs Chartering and Shipbooking Corporation 37 DLR (AD) 47.
Order I rule 7-
There is no scope to allow the application filed by defendant No. 1 for giving direction to defendant No. 2 to make payment under the letter of credit when the former had not gone to Court praying for any relief and when the plaintiff's appeal itself (on the injunction matter) is being dismissed.
Sarhind Garments Ltd vs Glory Truth Industries Ltd and another 49 DLR 260.
Order I rule 8-
Representative SuitObject- The object with which this provision was enacted is to facilitate decisions on questions in which a larger body of persons are interested withoutrecourse to the ordinary procedure where each individual has to maintain action by separate suit.
Government of Bangladesh vs Mirpur Semipucca (Tin-shed) Kalayan Samity & others 54 DLR 364.
Order I rule 8-
Representative Suit Benefits-A decree passed in a representative suit enures to the benefit of or binds all the persons represented in the suit.
Government of Bangladesh vs Mirpur Semipucca (Tin-shed) Kalayan Samity & others 54 DLR 364.
Order I rule 8-
Representative SuitLeave-In the absence of the necessary leave, the suit cannot assume the character of a representative suit.
Government of Bangladesh vs Mirpur Semipucca (Tin-shed) Kalayan Samity & others 54 DLR 364.
Order I rule 8 and Order XXXIX rule 1-
Representative suit under Order 1, rule 8 CPCPrayer for ad-interim injunction restraining the defendants from proceeding with the construction refused by the trial Court and the same was affirmed by the lower appellate Court-High Court Division summarily rejected the revisional application filed under section 115 CPCDirective principles of State (Articles 8-25 of the Constitution of Bangladesh) considered.
However, the need for judicial intervention may not arise even in those cases where the Court's jurisdiction is invoked if the administration takes preventive, remedial and curative measures meanwhile.
Ziaul Huq vs Messrs Business Resources Ltd 42 DLR (AD) 80.
Order I rules 9 and 10(2)-
Discretionary power-Manner of exercise-Legal principles to be followed-The impugned order passed in clear violation of the principles emanating from the provisions of law is not sustainable.
Gani Mia vs UNO Biswanath 42 DLR 72.
Order I rule 9-
Order 1 rule 9 of the Code of Civil Procedure is applicable in case of nonjoinder of necessary parties in the application for pre-emption in view of section 141 of the Code of Civil Procedure. Section 96(2) of the said Act creates obligation on the part of the pre-emptor to make co-sharer tenants in the disputed holding as parties to the pre-emption application.
Abdus Satter and others vs Abdun Noor and others 49 DLR 414.
Order I rule 9-
In spite of the Government being not joined as a party in the suit, the Courts below dealt with the matter of controversy so far as regards the right and interest of both the parties and, as such, by mere non-joinder of the Government the suit cannot be defeated.
Abdul Quayuam Khan vs Abu Yusuf Mridha 5 I DLR 386.
Order I rule 10-
Addition of parties Knowledge of fact subsequent to the institution of the suit-Petitioner can amend the plaint to include his claim.
Nuruddin Ahmed vs Zafarullah Siddique 42 DLR 246.
Order I rule 10-
Dismissal of an application by a person made under Order I, rule l 0, CPC to be added as a party in a probate proceeding does not deprive the party of its right to apply for revocation of grant of probate under section 263, Succession Act (the petitioner).
Azifa Khatun vs Tulshi Ranjan Roy 37 DLR 268.
Order I rule 10-
The suit will be encumbered by the addition of parties which is not necessary or proper for adjudication of the dispute between the plaintiff and opposite party Nos. 1-4 as there would be unnecessary stress on the plaintiff.
Gani Mia vs The UNO Biswanath 42 DLR 72.
Order I rule 10-
Parties sought to be impleaded were not parties to the contract between the plaintiff and the original defendants nor any contract or right of these parties had been infringed upon-Held: that these parties not entitled to be impleaded.
Gani Mia vs UNO Biswanath 42 DLR 72.
Order I rule 10-
Where the suit was decreed ex parte and persons entitled to be added as parties to the suit make an application to add them as parties and to set aside the ex parte decree. Court should add them as parties and give them an opportunity to set aside the ex parte decree.
Ahmed Hossain vs Dr AA Rizvi 38 DLR 173.
Order I rule 10-
The Appellate Division left the question unanswered in the case reported in 33 DLR (AD) 245 as to whether the provisions of Order I, rule I 0 CPC are applicable to probate proceedings under section 283(1) of the Succession Act (XXXIX of 1925).
Kalpana Das Gupta vs Bangladesh 40 DLR 373.
Order I rule 10-
A proceeding before a District Delegate ceases to be non-contentious when there is an appearance. He is not to decide the merit of the "Contention" or take a decision under Order 1, rule IO CPC whether an application under Order I, rule 10 CPC ought to be allowed or not.
Kalpana Das Gupta vs Bangladesh 40 DLR 373.
Order I rule 10-
The petitioners who have made a prayer to be added to be a party to the proceeding have no locus standi to file an application for addition of parties to the proceeding.
Md Makbul Hossain vs Sree Sibu Pada Dam 40DLR120.
Order I rule 10-
In a suit for specific performance of contract it is not permissible to adjudicate on the question of title of stranger to the contract, who need not therefore be made a party to such a suit.
Feroja Khatoon vs Brajalal Nath 43 DLR 160.
Order I rule 10-
Sub-tenant's claim to be added as a party in a suit for ejectment- although a sub-tenant is a necessary party in a suit for ejectment and requires to be added in such a suit but unless it is proved that he is a sub-tenant under the tenant, the question of his addition as a defendant does not arise.
Nurul Absar Chowdhury vs Haji Abdul Hoque 43 DLR 112.
Order I rule 10-
The order adding the respondent as opposite party in the revision case being founded on no proper premises cannot be passed off merely because it was made in the exercise of a discretion.
Subash Chandra Halder vs Abdul Bari 44 DLR (AD) 253.
Order I rule 10-
Party to be imp leaded in ejectment suit–Only those persons who are in physical possession of the suit property should be made defendants and others are neither necessary nor proper parties in a suit for ejectment.
Sher Mohammad vs Saroda Bala Sen 45 DLR 527.
Order I rule 10-
Addition of party in a suit for specific performance of contract-The appellants' averments in the application for addition of party setting up an independent title to the land disentitle them to be included as parties within the framework of the present suit wherein the real question to be determined is whether the contract for sale between the parties therein was genuine and whether on the basis thereof the plaintiffs are entitled to get a decree. The averments for addition of party will convert the present suit into one for determination of title which is not permissible in law.
Golam Kader and others vs Abdul Khaleque Choukder and others 43 DLR (AD) 107.
Order I rule 10-
In a suit for ejectment of tenant when the petitioners are not in possession of the suit premises and the ownership thereof remained very much a disputed fact, they are neither necessary nor proper parties to be added in the suit.
Sher Mohammad vs Sarada Bala Sen and another. 46 DLR 517.
Order I rule 10-
Parties cannot be allowed to obtain documents in respect of the suit land during the pendency of the suit for partition in the names of their sons and daughters to set up a case at the peremptory hearing different from the one they had earlier set up so as to further linger the litigation. Thus the impugned order adding opposite party Nos. 1-8 in the suit, they being no necessary parties, is set aside and the written statement if any, filed by them is also rejected.
Aynaddin Howlader vs Maniruzzaman Mani 46 DLR 458.
Order I rule 1O-
Only lessees in possession are necessary parties in a suit against the lessor. Neither in the petition referred to above nor in any other petition the appellants have asserted that they are continuing as lessees upon renewal of lease by the Government and payment of rent even after institution of the present suit in 1987.
The learned Subordinate Judge found that the appellants were lessees for only one year, 1389 BS and there was no paper in support of their claim of present lease. In the circumstances of the case we do not think that any illegality has been committed by the High Court Division in rejecting the revisional application of the appellants.
Bahar Ali Pramanik & ors. vs Mosar Ali Pramanik & others 45 DLR (AD) 120.
Order I rule 10-
A person is entitled to be added as a party in a suit even he be a stranger, if he has direct interest, legal or equitable, in the dispute.
Fatema Khatoon vs City Bank Ltd and others 49 DLR 117.
Order I rule 10-
In a partition suit even a third person claiming title to property adverse to plaintiff and defendant is necessary party. In exceptional circumstances addition of parties can be allowed even after preliminary decree is passed.
Abdur Rahman and others vs Abdus Sattar and others 49 DLR 60.
Order I rule 10-
The apprehension in the minds of the petitioners that the transferor- defendants are not interested to proceed with the suit cannot be said to be without any foundation. Weighing the entire facts, the petitioners are required to be impleaded as defendants in the suit just to protect their right.
Mokthar Masum Abedin and others vs Nironjan Kumar Mondol and others 50 DLR 341.
Order I rule 10-
Ordinarily when a suit is filed against a company the Director and shareholders are not necessary parties in the suit. But when allegations of misappropriation are made against them they cannot be said to be not necessary parties and their names cannot be struck off from the plaint.
Makbulur Rahman and others vs Halima Textile Mills Ltd Employees Provident Fund Trust, Comilla and others 47 DLR 449.
Order I rule 10-
The Assistant Custodian, Vested Property having claimed interest in the suit property directly through the testator and not through any third person, his addition as a party in the probate proceeding needs no interference.
Latika Rani Das vs Bibhabati Roy Chowdhury and others 48 DLR 404.
Order I rule 10-
Even after an objection is taken by the defendant on the question of defect of parties and the plaintiff fails to implead them as parties to his suit, he must do so at his own risk and peril but none can compel him to implead parties against his will.
Falu Mia vs Md Nazrul Islam and others 51DLR486.
Order I rule 10-
In the suit for partition the sole plaintiff relinquished her interest and filed a compromise petition in Court. In view of the fact that the petitioners claim share through original owner, they are entitled to be transposed in the category of the plaintiffs from defendants.
Abdul Jalii Shah and another vs Rahima Khatun and others 51 DLR 441.
Order I rule 10-
Non-joinder of parties
The result of the suit will be binding upon the parties to the suit and not upon any one not made party thereto. The decree can be challenged as such by the party left out and not by others on the ground of non-joinder.
Qaiyum Khan and others vs Sudarshan Singh and others 52 DLR (AD) 53.
Order I rule 10-
As soon as the letters of credit are established between the issuing bank and the negotiating bank, it becomes an independent agreement between the two banks, neither the seller nor the buyer has any privity to that agreement. So the presence of the petitioner is not necessary for proper adjudication of the suit.
Zyta Garments Ltd vs Union Bank Ltd and another 55 DLR (AD) 56.
Order I rule 10-
If somebody comes before the court with an application that the whole transaction was forged, and cooked up for the suit with a view to grab the suit property and that the alleged vendor died long before the contract, his presence, it is difficult to say, would not be of any assistance to the court for adjudication of the issues.
Abdul Mannan (Md) vs Swaraj Roy and ors 54 DLR 352.
Order I rule 10-
When a party claims to be in possession, the Court is also under an obligation to see if by rejecting his prayer this Court is pushing the parties to multiplicity of proceedings.
Abdul Mannan (Md) vs Swaraj Roy and ors 54 DLR 352.
Order I rule 10-
The court has ample power to treat an application filed under Order I rule I 0 CPC as an application under Order XXII rule 10 CPC. Mentioning of a wrong provision of law is no ground for rejection of the application if the substance of the application discloses ingredients of passing appropriate order ..
Abu Taher Bhuiyan vs Lal Mohon Mondal and others 54 DLR 604.
Order I rule 10-
Under section 28 of the Contract Act, save as otherwise provided in the contract inself, the liability of the surety is coextensive with that of the principal debtor. In fact, the liability of the guarantor of surety is immediate and this need not be deferred until creditor exhausts his remedies aga4:nst the principal debtor.
IFIC Bank Ltd vs Chittagong Steel Mills Ltd and another 55 DLR 417.
Order I rule 10-
In a suit for specific performance of a contract, the parties to the contract are the only proper and necessary parties.
Saroj Kanta Sarker and others vs Seraj-udDowla and others 56 DLR 39.
Order I rule 10-
In a suit for ejectment of a tenant third party who is not claiming tenancy under the plaintiff is neither a necessary nor a proper party.
Noor Mohammad vs Md Noor Hossain and another 56 DLR 53.
Orders I rule 10 & Orders XXII rule 4-
Even if the facts stated by the petitioners in assertion of their right to be added as parties are taken to be correct then also they cannot be added as parties because they have no independent right to call in question the legality and propriety of the decree passed.
Abdur Rashid (Md) and others vs Bainchitala Junior High School 54 DLR (AD) 80.
Order I rule 10 & Order XXII rule 4-
Be it an application for addition of party or an application for substitution of heirs, the concerned parties must show that they have inherited the Estate left by their predecessor-in-interest.
Bainchitala lslamia Junior Madrasha vs Md Abdur Rashid & others 50 DLR 153.
Order I rule 10 and Order XXII rule 9-
Addition of parties is permissible in respect of the representatives and heirs of persons relating to whom a suit had abated provided there were sufficient reasons for it. This is in the discretion of the judge for the purpose of giving effect to the right of the parties.
Moqbul Ahmed vs Shoeb Chowdhury 44 DLR 156.
Order I rule 10 and Order XXII rule 10-
When one of the plaintiffs is not willing to proceed with the suit compromised, it is for the Court to transpose him as defendant under Order I, rule 10 CPC by striking off the name of the unwilling plaintiffs and allow him to continue under Order XXII, rule 10-Munsifs order of dismissal for non-prosecution on the basis of compromise outside the court is not sustainable.
Tamijul Huque vs Yunus Ali 42 DLR 234.
Order I rule 10 & Order XXII rule 10-
The petitioner No.2 acquiring interest in the suit property by way of exchange with petitioner I, the former has a right to be impleaded as a co-plaintiff in the suit.
Anil Ranjan Ghosh and another vs Assistant Custodian of Vested and Non-Resident Property and Additional Deputy Commissioner (Revenue) and another 49 DLR 296.
Order I rule 10(1)(2)-
Where a party seeks to be added as a co-plaintiff in a suit and puts forward conflicting claim as to title of the property in dispute he should not be allowed to be added as a co-plaintiff but he can be made defendant in the suit for the purpose of effective and complete adjudication of issues which may be raised for decision between the plaintiff and the defendant.
Md Idris vs Bazal Ahmed 40DLR317.
Order I rule 10(2)-
Addtion of party in a suit-Law laid down in 38 DLR (AD) 308 discussed along with other Judgments and followed. It is held that the petitioner is a party whose presence is necessary for complete and effectual determination of the issues in the suit.
Order does not show as to whether the Court had applied its judicial mind to the facts and circumstances of the case and as to how it had exercised its judicial discretion- The order cannot be maintained.
Md Afzal Hossain vs Mst Tahera Khatun 40 DLR 528.
Order I rule 10(2)-
Addition of a person, as plaintiff or defendant, may be ordered by such Addition -It Is necessary to settle all relevant matters Involved In the suit.
Parimal Majumdar vs A Sobhan 39 DLR 352.
Order I rule 10(2)-
A lessee in possession of the lease-hold property Is a necessary party as contemplated In Order 1, rule l 0(2), when a suIt Is brought against the lessor over the subject-matter of that property.
Parimal Majumdar vs A Sobhan 39 DLR 352.
Order I rule 10(2)-
An order under Order 1, rule 10(2) must show that the court applIed Its mInd to the facts of the case.
Nur Mohammad Mia vs Ashraf AlI MIa 39 DLR 325.
Order I rule 10(2)-
In strIkIng out a party's name from a declaratory suIt fIled agaInst the Govt to the effect that the suIt land Is not vested and non-resIdent land, the person to whom the land has been leased out by the Govt has a rIght to be Impleaded In the suIt partIcularly when the plaIntIff made hIm a party to the suIt when he fIled It.
Waliullah Munshi vs Lodu Patwary 38 DLR (AD) 308.
Order I rule 10(2)-
Interest of lessor and lessee may not always be same so as to say the presence of the lessor wIll protect the Interest of the lessee.
At the same It may be necessary to poInt out that the lessee may have more reasons or urgency to protect hIs Interest In the suIt land than the lessor. The Interest of lessor and lessee may not always be the same so as to hold that the presence of lessor as defendant In a suIt suffIces and the lessee's presence Is not necessary and may, therefore, be dIspensed wIth.
Waliullah Munshi vs Lodu Patwary 38 DLR (AD) 308.
Order I rule 10(2)-
In a suIt for SpecIfIc Performance of Contract the partIes to the contract are necessary partIes subject to general rule of exceptIon.
Md Nurul Abser Miah vs Kiron Shanker Nandy 41 DLR 148.
Order I rule 10(2)-
A transferee who purchases pro¢tly durIng the pendency of a suIt Is not a necessary party In a suIt for ejectment. Tozammel Hossain vs Fatema Khatun & others 45 DLR 697.
Order I rule 10(2)-In a suIt for specIfIc performance of contract only the partIes to the contract are necessary partIes. AddItIon of 3rd party wIthout any reason In such a suIt would convert It Into a suIt for determInatIon of tItle and thIs Is not permIssIble In law.
Muzaffar Ali and another vs Monwara Hospital and ors 51 DLR 341.
Order I rule 10(2) and sectIon 115(1) –
Necessary party-Impleading of-Since the petitioner Is In possession of the suit property on payment of part of the consideration money pursuant to an agreement for purchase, It cannot be said that he has no interest in the suit property-The petitioner, in that view, is a necessary party in whose presence the suit should be decided for proper and effective adjudication.
Dr Shakhawat Hossain vs Secretary, Ministry of Works, Government of Bangladesh 42 DLR 215.
Order I rule 10(2) & Order VI rule 17-
Belated prayer for addItIon of a necessary party or for amendment of pleadIngs by Itself Is no ground for refusal of such prayer If the addItIon or amendment Is necessary for a complete and effectual adjudIcatIon.
Hasina Khatoon and another vs Md Samsur Rahman and others 49 DLR 187.
Order I rule 10( 4)-
Amendment of plaInt for addItIon of party. Under Order 1, rule 10(4) where a defendant is added the plaint shall, unless the Court otherwise directs, be amended in such a manner as may be necessary.
Addition of a party cannot mean addition or introduction into a suit a new cause of action or to change its character, even though all the controversies are relatable to the property in dispute.
Addition of parties or rejection of parties under Order I, rule l 0 CPC being a discretion of the court may not be interfered with unless the order was perverse or contrary to law.
Addition of parties or rejection of addition of parties in exercise of the power under Order I, rule I 0 being a discretion of a Court, may not be interfered with unless it could be shown that the order was perverse or manifestly unjust and contrary to law. Except on those grounds, an order passed under Order I, rule 10 of the Code of Civil Procedure would not be revisable, even if it is erroneous.
Ishaque Hossain Chowdhury vs Mrs Shamsun Nessa Begum 41DLR23.
Order I rule 10(4)-
Addition of defendant and absence of amendment of plaint-After addition of defendant No. 3 as a party the plaintiff did not amend the plaint on the question of defalcation of money by him as covered by issue No. 4. In such circumstance the Subordinate Judge has erred in allowing the parties to lead evidence against the added defendant and therefore the decree passed against him is not sustainable.
Abdul Awai Mia vs Sonali Bank & others 43 DLR 201.
Order II rule I-
Frame of suit-Presence of necessary party-
The suit having been brought for declaring and setting aside an order passed by the Board of Intermediate and Secondary Education, Jessore and for mandatory injunction for publication of a particular result, the Board is the appropriate authority which is the necessary party in the suit. The suit is bad for non-joinder of the Board as a party.
Therefore, the suit is not properly constituted and the Courts below committed an illegality in decreeing the same.
Mohammad Mofizuddin vs Mohammad Feroj Alam 44 DLR 36.
Order II rule 3—
Pre-emption-
A co-sharer is competent to initiate the present pre-emption proceeding by filing one application under section 96( 1) of the State Acquisition and Tenancy Act by pre-empting lands transferred by different Kabalas where cause of action has been united under Order II, rule 3 CPC and the pre-emptor is not required in Jaw to seek leave of the Court for this purpose.
Knowledge of the date of sale-A finding as to knowledge of the petitioner about the sale of the land under pre-emption is a finding of fact and unless finding suffers from infirmity or it is perverse, the High Court Division will not interfere with the finding of the lower appellate Court in its revisional jurisdiction.
Sree Jitendra Nath Howlader vs Sree Bisweswar Howlader 42 DLR253.
Order III rules 1 & 2-
This Order and the rules have no application in the matter of signature on the plaint because it is not an act in or to a Court. A plaint can be signed outside the Court.
Anath Bandhu Guha & Sons Ltd vs Babu Sudhangshu Shekhar Halder 42 DLR (AD) 244.
Order III rule 2-
Provisions of Order III rule 2 empowers, amongst others, a duly constituted attorney to make appearance, applications, andlor to do acts for and on behalf of such absent party.
Shah Alam (Md) vs Abul Kalam and others 54 DLR 276.
Order III rule 2(a)-
Power of attorney must be executed according to the provision of section 85 of the Act otherwise a person holding a power of attorney is not legally permitted to represent his principal under Order III rule 2(a) of the Code.
Ramesh Chandra Chowdhury@ Das vs Naresh Chandra Das@ Chowdhury 52 DLR 227.
Order III rule 4(1) & Order VII rule 11-
Power-of-Attorney-Defect and disabilityWhen the power of attorney fails the embargo that follows will fall upon the lawyer and not on prosecution of suit by the principal. The disability attaches to the lawyer and not to the plaint. Court is to fix a date for steps to be taken by plaintiff when he may appear himself or by another recognised agent or by the same attorney after curing the defect. SSC Judge wrongly held that due to defect in power of attorney there was no cause of action for the suit, for it is the principal who has cause of action for the suit. Plaint can be rejected only when on the averments the plaintiffs is found not to have cause of action. Without rejecting the plaint the court has a clear duty to fix a date for the plaintiff to take steps.
Anath Bandhu Guha & Sons Ltd vs Babu Sudhangshu Shekar Halder 42 DLR (AD) 244.
Orders III-IV rule 1, Order VI rules 2, 14 and 15, Order VII rule 11-
The rule does not specifically pinpoint as to who shall present the plaint. Plaint need not be presented by the plaintiff personally or by a person duly authorised by him by power of attorney. If a plaint is not properly signed or verified or presented, the court has always the discretion to allow the plaintiff to cure the defects at a later stage. These are defects of technical nature relating to matters of procedure curable at any time. Order VII rule 11 is not at all attracted when there are defects in complying with the provisions of Order II or Order 6.
Anath Bandhu Guha & Sons Ltd vs Babu Sudhangshu Shekhar Halder 42 DLR (AD) 244.
Order III rule 4(2)-
When a person is no longer the appointed Advocate of a party, it is incumbent upon the subordinate judge to communicate an order to the parties about the arrival of the records of the case from the High Court Division.
Makbul Ahmed and others vs Mohammedullah and others 54 DLR 399.
Order IV rule l(b) & Order V rule 2-
Copy of the plaint is an integral part of the summons. To constitute a summons within the meaning of the provisions of the Code plaint must be accompanied with the summons either it be served by the process server or by registered post.
Mohammadullah and others vs Md Shamsul Alam alias Md Alam 55 DLR 428.
Order V rule I-
Petitioner entered appearance in the suit by filing a vokalatnama and filed written objection in the injunction matter but subsequently he did not file any written statement in the suit and consequently the ex parte decree was passed. The petitioner's plea that summons was not served upon him is not tenable at all.
Jalaluddin (Md) and others vs Laity Begum and others 48 DLR (AD) 163.
Order V rule 15-
Service effected on adult member of defendant's family in absence of defendant from his residence, when the service of summons is sought to be effected. In order to prove service of summons as per provision contained in Order V, rule 15 of the Code of Civil Procedure two conditions must be satisfied: (I) absence must be from residence: (2) if defendant is not found at his residence and there is no agent empowered to accept summons an enquiry has to be made to find out absentee defendant's adult male member residing with defendant and in process server's affidavit, these facts must be stated. Since process server concerned has not been examined nor service return of the summons been made exhibit, question whether aforesaid conditions stand satisfied or not does not arise for consideration. There is absolutely no evidence to show that Kasimuddin on whom the summons meant for opposite party defendant No. 20 was served, happens to be the male member of the opposite party's family and residing with him.
Osiruddin Mandal vs Azizur Rahman 39 DLR 403.
Order V rules 16 and 18-
Service of summons-When the lower appellate Court finds that the name of the clerk who received the summons is not distinct and the names and addresses of witnesses in whose presence the summons was served have not been noted in the original summons, that provides a strong ground for the court below to hold that the summons was not served. The procedure provided for serving summons is not to be whittled down by importing the concept of "substantial compliance" as done by the High Court Division.
Bangladesh vs Chand Mia & others 44 DLR (AD) 98.
Order V rule 17-
Service of summons, proof of-Summons served by process-server without noting the names and addresses of Mokabila witnesses in the service return Process-server appearing in Court as a witness-his evidence without examining the Mokabila witness not acceptable-It is obligatory upon the process-server to mention in his report the name and address of the person, if any, by whom the house in question was identified and in whose presence the copy of summons was affixed When service reports were devoid of these essential information, they were unacceptable. Mere personal appearance of the process-server as a witness in Court did not make the report acceptable.
Upendra Chandra Rishi vs Sujia Begum 42 DLR (AD) 285.
Order V rule 17-
Petitioner entered appearance in the suit by filing a vokalatnama and filed written objection in the injunction matter. Subsequently he did not file any written statement and ex parte decree was passed. In that view of the matter the petitioner's plea that summons was not served upon them is not tenable at all.
Jalaluddin and others vs Laily Begum and others 50 DLR (AD) 105.
Order V rule 17-
The plaintiff who obtained the ex parte decree is to prove the service of summons by producing the persons in whose presence the copies of summons was affixed.
Azizur Rahman vs Mariamunnessa and others 54 DLR 108.
Order V rules 17 and 19-
When the summons is returned unserved under rule 17, a duty is cast upon the Court under rule 19 to examine the process server.
Order V, rule 19 CPC enjoins a duty upon the court to examine the process-server where the summons is returned under rule 17, CPC and the return has not been verified by the affidavit of servicing officer. Rule 19 .also speaks that the court may make such further inquiry in the matter and shall either declare that the summons has been duly served or order such service as thinks fit.
In view of the provisions of rule 19 of Order V, CPC it can easily be held that where the summons is returned under rule 17 it is mandatory on the part of the Court to examine the process server on oath and to declare that the summons has been duly served. Unless these requirements of law are satisfied it cannot be held that the summons was duly served. From perusal of the record of the court below I am unable to find that those requirements of law have been fulfilled in this case. In that view of the matter, I hold that there being no service of summons on the petitioner the ex parte decree passed by the court below is liable to be set aside.
Nur Ahmed vs Mokter Ahmed 41 DLR 84.
Order V rules 17 and 19-
Procedure when the defendant refuses to accept service or he cannot be found and examination of the serving officer to be followed-has been stated.
Ratan Chandra Karmaker vs Afsar Ali 40 DLR 147.
Order V rules 17 and 19-
Process-server's duty regarding the non-acceptance of the summons-Rules 17 and 19 of Order V of the Code of Civil Procedure to be read togetherCourt's function to examine the process-server on oath under rule 17 stated in such cases.
Ratan Chandra Karmaker vs Afsar Ali 40 DLR 147.
Order V rules 17 and 19-
Provisions of rule 19 of Order V, CPC are mandatory.
Ratan Chandra Karmaker vs Afsar Ali 40 DLR 147.
Order V rules 17 and 19-
When neither the bailiff files an affidavit in support of his endorsement on the service return of summons nor does the Court examine him on oath when there is no such affidavit, the service is not valid. Any subsequent examination of the processserver as a witness to prove the service return will not cure the initial invalidity.
Ratan Chandra Karmaker vs Afsar Ali 40 DLR 147.
Order V rules 17 & 19-
Summons on several defendants were served by hanging under Order V rule 17 of the Code. It was therefore incumbent on the Court below to make an enquiry under Or V r 19 of the Code and record a distinct declaration of due service, if satisfied, or to order service afresh. 25 DLR 91 ref.
Shaif Ullah Patwary and others vs Jharna Dhara Chowdhury and another 47 DLR 307.
Order V rules 17, 19 & 19A-
When summon is returned under Rule 17 the Court has to examine the serving officer on oath touching his proceeding and to ascertain by enquiry in the matter as to whether summons has been duly served or not and make a declaration to that effect.
Sk Haider Ali vs Abdul Wahab Gazi and others 49 DLR 251.
Order V rules 19 and, 19A-
No definite witness to the delivery of summons as adduced in evidence by PW 2-Summons was not duly served upon the petitioner.
Taking into consideration these aspects of the statements of DW 2 and deposition of PW I and PW 2, I have no hesitation in holding that no summons was served upon the petitioner and it was shown to have been served by hanging falsely without there being any attempt to deliver the same to the petitioner. In this view of the matter, I cannot accept the finding of the learned court below that the summons was duly served upon the petitioner.
Nur Ahmed vs Mokter Ahmed 41 DLR 84.
Order V rule 19A-
Under Order V, rule 19A of the Code of Civil Procedure the declaration of the process server is an evidence of the fact as to the service of the summons upon the defendant. The report that the service was made on the identification of the Mokabila witnesses implies that the process server did not know the defendant and or his house. So, in absence of any statement by OPW 2 on the point of his identification, the recital as to the identification which is like other evidence remains uncorroborated and in the face of denial by the defendant there remains a genuine suspicion that the service was made, if at all, upon a wrong person.
Alhaj Abdul Aziz vs Kalipada Das 41 DLR 170.
Order V rule 19B(2) & Order XLI rule 21-
A summons sent by registered post and returned with the endorsement refused is prima facie evidence that the addressee had an opportunity to accept it and the service thus effected is a good and valid service.
Shahabuddin Ahmed vs Abdur Rab Molla & others 52 DLR 305.