Bld’s Ten Years Civil Digest (1993-2002) Index
Abandoned
Buildings
This
Ordinance is meant only for buildings and not for lands. The inclusion of C.S.
Plots Nos. 116 and 117 of Mouza Baze Kakrail in the list of ‘abandoned
property’ is without any lawful authority—Abandoned Buildings (Supplementary)
Provision Ordinance, 1985 (LIV of 1985), Section-2(9).
Bangladesh
Leaf Tobacco Company Limited V Bangladesh & ors, 14 BLD(HCD) 66.
Publication
of list of buildings and presumption of its correctness
Section
5 (2) of the Ordinance provides that the list published under sub-section (1)
shall be conclusive evidence of the fact that the buildings included therein
are abandoned properties and have vested in the Government—Abandoned Buildings
(Supplementary Provisions) Ordinance, 1985 (LIV of 1985), Section—5 (1)(2).
Government
of Bangladesh Vs. Md. Jalil and others, 15 BLD(AD)175
Abandoned
Buildings
It
provides that a person claiming any right or interest in any such building may
file an application before the Court of Settlement for exclusion of such
building from the list of abandoned buildings on the ground that the building
is not an abandoned one and it has not vested in the Government. The onus is
squarely on the claimant of the building to prove affirmatively that the
building in question is not an abandoned property— Abandoned Buildings
(Supplementary Provisions) Ordinance 1985 (LIV of 1985), Section—7.
Government.
of Bangladesh Vs. Md. Jalil and others, 15 BLD(AD) 175
Abandoned
Buildings
The
exparte decree obtained by the writ petitioner is a declaratory decree
simpliciter without any prayer for recovery of possession, when, admittedly,
the writ petitioner was not in possession thereof. Such a decree is not within
the contemplation of proviso (a) to section 5 of the Ordinance—Bangladesh
Abandoned Buildings (supplementary provisions) Ordinance, 1985 (LIV of 1985),
Section—5, Proviso (a).
Bangladesh
Vs. Anwar Ahmed and others, 18 BLD(AD) 281
Abandoned
Buildings
Under
section 5 of the Ordinance has created a special forum to deal with a property
which has been enlisted as abandoned property. A special procedure has also
been made therein to decide those cases. A legal presumption has also been
attached under section 5(2) of the Ordinance to the list published under
sub-section (1) as a conclusive evidence that the enlisted property is an
abandoned property—Bangladesh Abandoned Buildings (supplementary provisions) Ordinance,
1985 (LIV of 1985), Section—5 (2).
Bangladesh
Vs. Anwar Ahmed and others, 18 BLD (AD) 281.
Abandoned
Buildings
A
finality having been given to the publication of list of all abandoned
buildings upto 1986 in Abandoned Buildings (supplementary provisions) Ordinance,
1985, the eviction notice on the plea that the property is an abandoned
property is illegal and without jurisdiction—Abandoned Buildings (supplementary
provisions) Ordinance, 1985 (LIV of 1985), Section—7.
Bangladesh
Vs Sunjit Kumar Datta & ors., 20 BLD (AD) 44
Abandoned
Buildings
Publication
of list of abandoned buildings
If
the suit building was included in the list of abandoned buildings and was
published in the official Gazette in contravention of section 5(l)(a)(b) of the
Ordinance, the civil court has ample jurisdiction to try the suit—Abandoned
Buildings (Supplementary Provisions) Ordinance, 1985 (LIV of 1985), Section—
5(l)(a)(b)
Most.
Nazibunnessa Vs. Md. Abdus Sobhan Mia and others, 15 BLD(IJCD) 621
Abandoned
Buildings
The
order of the Court of Settlement constituted under section 7 of Ordinance No.
LIV of 1985 for restoration of the property in question to the petitioner is
binding upon the Government in terms of section 10 of the said Ordinance. The
Government is under a legal obligation to implement the decision of the Court
of Settlement and restore the property to the petitioner—Abandoned Buildings
(Supplementary Provisions) Ordinance, 1985 (LIV of 1985), Sections—? and 10.
Hafeezuddin
Ahmed Vs. Govt. of Bangladesh and another, 15 BLD(HCD) 98
Abandoned
building
The
petitioner is the original lessee of the building in question and as such it
cannot be treated as abandoned property as defined in P.O. 16 of 1972 and
accordingly the inclusion of the petitioner’s building in the abandoned properties
list is without lawful authority— Abandoned Buildings (supplementary provision)
Ordinance, 1985 (LIV of 1985), Seetion—5, Bangladesh Abandoned Property
(Control, Management and Disposal) Order, 1972 (P 0 16 of 1972), Article—2.
Abul Hossain
Khan Vs Bangladesh Shachibalaya, Dhaka, 20 BLD(HCD) (HCD) 442.
ABANDONED
PROPERTY
Abandoned
property
Order
passed by the Prescribed Authority under the article 15 of the president order
no. 16 of 1972 is a final order unless revised under article 16 of the order.—President’s
Order No. 16 of 1972, Article—15.
Feroz Ahmed
Vs. Bangladesh, 13 BLD (HCD) 160
Abandoned
Property
Onus
The
onus is firmly tested on the Government to prove that the property in question
is an abandoned property.
Mrs. Akhtar
Jahan Begum Vs. The Court of Settlement Bangladesh abandoned Buildings and
others, 13 BLD (HCD) 177
Abandoned
property
The
pre-requisitee of the enlistment of the buildings in the Official Gazette are
that the buildings must of necessity be abandoned properties within the meaning
of Presidents Order No. 16 of 1972, Order No. 16 of 1972.
Mrs. Akhtar
Jahan Begum Vs. The Court of Settlement, Bangladesh Abandoned Buildings and
others, 13 BLD (HCD) 177
Abandoned
Property
An
abandoned property in possession of any person, can only be included in the
list of abandoned properties called as the (Kha) list in respect of which
notice for surrendering or taking possession under the presidents Order 16 of
1972 has been issued: This notice must be the notice as stated in article 7(3)
of the said order and presented by the Rule 3(8) of the Bangladesh Abandoned
property ( Taking own possession) Rules 1972.—Abandoned Buildings
(Supplementary Provisions) Ordinance, 1985 (Ordinance No. 54 of 1985),
Section—5(1)(b).
Amela Khatun
and others Vs. Chairman, Court of Settlement and others, J3BLD (HCD) 517
Abandoned
property
If
a property answers to the definition of abandoned property, then it is
automatically vested with the Government—Order No. 16 of 1972.
Amela Khatun
and others Vs. Chairman, Court of Settlement and others, 13 BLD (HCD) 517.
Abandoned
property
Listing
of the properties in the (Kha) lists and publication thereof in the Official
Gazette in respect of which notices under Article 7(3) of Presidents Order No.
16 of 1972 have not been issued will be per se illegal.
Amela Khatun
and others Vs. Chairman, Court of Settlement and others, 13 BLD (HCD) 517.
Abandoned
Property
When
the alleged owner of the property was not in Bangladesh during the relevant
period, his whereabouts were not known and he ceased to occupy, supervise or
manage the property in question, such a property easily comes within the
definition of abandoned property—Bangladesh Abandoned Property (Control,
Management and Disposal) Order, 1972 (P. 0. No. 16 of 1972), Article -2(1). V
Bangladesh
Vs. Md. Suruzzamal and others, 15 BLD (AD) 146.
Abandoned
Property
Legal
proceedings barred
Once
a property vests in the Government under P.O. No. 16 of 1972 no legal
proceedings can be taken against such property. Consequently, the money decree
obtained by Rupali Bank against Dr. Shamim, the execution thereof and the
auction sale of the suit property are all void and of no legal consequence.
Bangladesh
Vs. Md. Suruzzamal and others, 15 BLD (AD) 146.
Ref:
27 DLR 423; 30 DLR (SC) 101; 28 DLR(AD) 120; 36 DLR(AD) 146 – Cited.
Abandoned
property
The
onus is on the claimant of the building to prove that the building is not an
abandoned property. The Government has no obligation either to deny the facts
alleged by the claimant or to disclose the basis of treating the property as
abandoned property— Abandoned Buildings (Supplementary Provisions) Ordinance
1985 (LIV of 1985), Sections-5 and 7.
Govt. of
Bangladesh Vs. Md. Jalil and others, 16BLD (AD) 21
Abandoned
Property
Decision
of the Civil Courts with regard to nature of the disputed property and the
petitioners claim thereto is binding upon the present petitioner as well as
upon the Court of Settlement.
In
view of the decision of the Civil Court between the contending parties in
respect of the case property the Court of Settlement acted without any lawful
authority in declaring the disputed property as not an abandoned property and
issuing direction for restoration of its possession to the petitioner— Code of
Civil Procedure, 1908 (V of 1908), Section—9, Abandoned Buildings
(Supplementary Provisions) Ordinance, 1985 (LIV of 1985), Section-7.
Mohammad
Moniruddin Vs. Bangladesh and another, 16 BLD (AD) 165.
Abandoned
property
Once
a building is included in the list of abandoned properties it is conclusive
evidence that the building in question is an abandoned property whose owner was
either not present in Bangladesh or his whereabouts were not known at the time
when P.O. 16 of 1972 came into existence. But this presumption is a rebuttable
presumption—Abandoned Buildings (Supplementary Provisions) Ordinance, 1985 (LIV
of 1985), Seetion—5(2).
Rahima Begum
and others Vs. The Court of Settlement and others, 1 7BLD (AD) 118.
Abandoned
property
From
the definition it appears that an abandoned property means any property owned
by a person (1) who is not present in Bangladesh, or (2) whose whereabouts are
not known, or (3) who has ceased to occupy, supervise or manage in person his
property— Bangladesh Abandoned Property (Controig Management and Disposal),
Order, 1972(P.O. No. 16 of 1972), Article—2(l).
Masuda
Anowar Vs. Bangladesh and another, 17 BLD (HCD) 427.
Abandoned
property
The
petitioner is entitled to challenge the inclusion of her house in the Kha’ list
of abandoned buildings in the writ jurisdiction in spite of dismissal of her
application by the Court of Settlement on the ground of limitation—Constitution
of Bangladesh, 1972, Article—42, P.O. 16 of 1972 and Ordinance 54 of 1985.
Mst. Saleha
Begum Vs. The Chairman, First Court of Settlement, Dhaka and another, I 7BLD
(HCD) 241
Abandoned
property
When
a property comes within the definition of ‘abandoned properties’ as
contemplated in Article 2 of P.O. 16 of 1972 it automatically vests in the
Government in terms of Article 4 thereof on the commencement of the Order. But
an abandoned property in possession of any person can only be included in the
‘Kha list’ of abandoned properties in respect of which a notice upon the
occupiers as required by Article 7(3) of Ordinance No. LIV of 1985 and as prescribed
by Rule 3(8) of the Bangladesh Abandoned Property (Taking Over Possession)
Rules, 1972 has been issued— President’s Order No. 16 of 1972, Article—2
Abandoned Building (Supplementary Provisions) Ordinance, 1985 (LIV of 1985),
Article—7(3).
Mrs. Lalima Begum
and another Vs. The Chairman, Court of Settlement, J7BLD (HCD) 270
Abandoned
property
If
the property is not found abandoned under the law, the possession of the
Government is that of a trustee, and transfer by the Government will be in
violation of section 94 of the Act for which the right and title of the
plaintiff over the suit property will not be extinguished—Trust Act, 1882 (11
of 1882), Section—94.
The Chairman
Sena Kalyan Sangstha Vs. Haji Sufi Fazal Ahmed and others, J7BLD (HCD)584
Abandoned
property
Under
Article 7 of P.O. 16 of 1972 and section 5(1)(b) of Ordinance 54 of 1985
requires notice to be issued upon the person whose property is declared an
abandoned property or enlisted in the ‘Kha’ list. But no such notice had been
issued and served upon the petitioner in violation of the aforesaid provisions
of law even though the petitioners have always been in possession of the case
property. Where a statute requires notice to be given before taking any action,
service of notice on the concerned party becomes mandatory—Bangladesh Abandoned
Property (Control, Management and Disposal) Order,1972 (P.O.No.16 of 1972),
Article—7, Abandoned Buildings (Supplementary Provisions) Ordinance, 1985 (LIV
of 1985), Section—5(1)(b).
Mrs. Jebon
Nahar and ors. Vs. Bangladesh and others, 18 BLD(HCD)141
Abandoned
Property
Under
Article 2(5) of the Order property means property of any kind, movable or
immovable and includes any right or interest in such property and any debt or
an actionable claim, any security or negotiable instrument, any right under a
contract and any industrial or commercial undertaking.
The
definition of properties as given in Article 2(5) includes right under a
contract, in the instant case the lease by Chittagong Development Authority to
Manzar and Co. which vested in the Government and the Government may transfer
such lease-hold right to anyone—Bangladesh Abandoned Property (Control,
Management and Disposal) Order,1972 (P.O.No.16 of 1972), Article—2(5).
Govt. of
Bangladesh Vs. Saber Ahmed, 18 BLD (HCD) 498.
Abandoned
Property
The
Government has the right to cancel allotment of an abandoned property but
before doing so it has to be found that the allottee is guilty of violation of
any of the terms and conditions of the lease– President Order No. 16 of 1972,
Article—10(1)
The
Secretary, Ministry of Public Works, Government of Bangladesh Vs. Md.
Sharifullah and others, 18 BLD (HCD) 93.
Abandoned
Property
In
view of the definition of abandoned property and the statement of the plaintiff
himself that he failed to manage and supervise the property in any manner, the
property vested in the Government as an abandoned property. Therefore, the High
Court Division was correct in holding that the suit for declaration of title
and recovery of khas possession is not maintainable in law—Bangladesh Abandoned
property (Control, Management and Disposal) Order, 1972 (P.O. 16 of 1972),
Articles —2(1), 14 and 24.
Syed Afzal
Nowab vs. G.M. Yousuf and ors, 18 BLD (AD) 240
Abandoned
property
The
petitioners need not have invoked the jurisdiction of the Court of Settlement
because the very inclusion of the property in question in the ‘kha’ list is ex
facie void for want of jurisdiction and is violative of Article 42 of the
Constitution. The petitioners can. come directly to the High Court Division for
protection of their fundamental right even though an alternative remedy is
available— Constitution of Bangladesh, 1972, Articles— 42 and 102, Abandoned
Buildings (supplementary provisions) Ordinance, 1985 (LIV of 1985), Sections—5
and 7.
Government
of Bangladesh Vs. Syed Chand Sultana and others, 18 BLD(AD) 274
Abandoned
Property
Since
the civil suit was pending in the Court of law in respect of the house in
question the Government was not entitled to enlist the same in the list of
abandoned buildings— Abandoned Buildings (supplementary provisions) Ordinance,
1985 (LIV of 1985), Section—5( 1 )(b).
Musammat
Salma Begum & anr. Vs. Govt. of Bangladesh & ors, 19 BLD(HCD) 368.
Abandoned
Property
Section
5(2) of the Ordinance provides that the lists published under sub-section(1)
shall be conclusive evidence of the fact that the buildings included therein
are abandoned property and have vested in the Government as such. Section 7 of
the Ordinance says that a person claiming any right or interest in any such
building may make an application to the Court of Settlement for exclusion of
the building from such list, etc. on the ground that the building is not an
abandoned building and has not vested in the Government under P.O. 16 of 1972
or that his right or interest in the building has not been affected by the
provisions of that order.
Section
7 enjoins upon the claimant before the Court of Settlement to prove that the
property is not an abandoned property, in a like manner a plaintiff is to prove
his case and the Government, like that of a defendant, is under no legal
obligation to prove that the property is an abandoned property or to disclose
the basis of treating the property as an abandoned property. Respondent
successfully rebutted the presumption attached to the list published under
sub-section (1) of Section 5 of the Ordinance that the property is an abandoned
property and vested in the Government—Abandoned Buildings (supplementary
provisions) Ordinance, 1985 (LIV of 1985), Sections—5(2) and 7.
Bangladesh
Vs. Md. Shajahan, 20 BLD (AD) 37.
Abandoned
Property
Clause
(8) of Regulation 42 is a matter of simple procedure. The forum and also time
for institution of proceeding or concluding the same are only questions of
procedural law for they relate merely to the modes in which the court or the
tribunal fulfils their function. It does not invest an incumbent with any
vested right. Any procedural law is retrospective in its operation.
A
subsequent omission by way of amendment of a procedure cannot be of any
consequence in respect of the proceeding against the appellant—Abandoned
Buildings (supplementary provisions) Ordinance, 1985 (LIV of 1985), Section—7 ,
General Clauses Act, 1897(X of 1897), Section—6, Bangladesh Steel and Engineering
Corporation Employees Service Regulation, 1989, Regulation—42(8).
Chowdhury
Nasimul Baqui Vs Bangladesh Steel and Engineering Corporation & others, 20
BLD (AD) 181.
Abandoned
Property
Section
7 enjoins upon the claimant before the Court of Settlement to prove that the
property is not an abandoned property, just as a plaintiff is to prove his
case, and the Government, is under no legal obligation to prove that the
property is an abandoned property or to disclose the basis of treating the
property as an abandoned property—Abandoned Buildings (supplementary
provisions) Ordinance, 1985 (LIV of 1985), Section—7.
Bangladesh
Vs Md. Shajahan, 20 BLD (AD) 166.
Abandoned
property
It
is clear from a reading of sub-paragraph (2) that it intended to confer a
benefit upon those owners of abandoned properties who in pursuance of a
judgment of a Court of law have actually and effectively received back the
possession of the property either by delivery of possession or by other
appropriate means in pursuance of such judgment. The essence of the matter is
that the owner must receive back possession of the property actually and
effectively from those who took it over as abandoned properties. The actual and
effective restoration or transfer may take place either by physical delivery of
possession or by other appropriate means. The words “other appropriate means”
in the context in which they have been used cannot but mean an effective
restoration or transfer to the owners by means other than delivery of
possession, i,e., a handing over of possession by another appropriate means
which is akin or similar to delivery of possession—Abandoned Properties.
(supplementary Provisions) Regulation, 1977 (Martial Law Regulation No. VII of
1977),Paragraph—6(2).
Bangladesh
Italian Marble Works Ltd. and another Vs Government of Bangladesh and another,
20 BLD (AD) 154.
Abandoned
property
Since
no notice as contemplated under section 5(1)(b) of the Ordinance was issued to
the respondent or any other person, inclusion of the disputed property in the
‘Kha’ list of the abandoned buildings is without lawful authority—Abandoned
Properties (Supplementary Provisions) Ordinance, 1985 (LIV of 1985),
Section—5(1)(b).
Govt. of
Bangladesh & ors Vs. Bibi Marium and others, 21 BLD(AD) 89
Abandoned
property
Sub-section
(2) of section 5 of the Ordinance provides that the lists published under
:sub-section (2) shall be conclusive evidence of the fact that the buildings
included therein are abandoned property and have vested in the government as
such. Petitioner failed to rebut the conclusive evidence as provided in section
5(2) of the ordinance—Abandoned properties (Supplementary Provisions)
Ordinance, 1985 (LIV of 1985), Section—5(2).
Asma Begum
Vs Bangladesh and others, 21 BLD(AD) 134
Ref:
15 BLD(AD)175: 48DLR (AD) 10; Rex Vs. Northumberland Compensation Appeal
Tribunal (1952) 1KB338—relied
Abandoned
property
Absence
of the owner was sufficient to treat the property as an abandoned property.
Asma Begum
Vs Bangladesh and others, 21 BLD (AD) 134.
Ref:
15 BLD(AD)175: 48 DLR (AD) 10; (1952) 1KB338—relied
Abandoned
property
The
Court of Settlement is authorised under section 7 of the Ordinance to deal with
the entire question of abandonment of the property and that is the proper forum
for complete relief of the writ petitioner. So it cannot be said the Court of
Settlement does not offer an equally efficacious remedy—Abandoned Properties
(Supplementary Provisions) Ordinance, 1985 (LIV of 1985),. Section—7.
Bangladesh
and another Vs. Habib Zamil, 21 BLD (AD) 36.
Abandoned
Property
It
is now well-settled that the order passed by the prescribed authority under
Article 15 of P.O. 16 of f972 is a statutory order and it is binding on the
Government—Abandoned Property (Control, Management and Disposal) Order, 1972
(P.O. 16 of 1972), Article—IS.
Mojibur
Rahman Vs. Bangladesh and others, 15 BLD (HCD) 619.
Abandoned
Property
Once
the property answers the description of abandoned property it is immaterial in
which list it is published and’ on that count the publication of the property
as an abandoned property cannot be set at naught.
M/s. Eastern
Industries Vs. Bangladesh and another, 20 BLD(HCD) (HCD) 520
Ref:
3BLC(AD)42—relied.
Abandoned
property
Mere
omission to observe as to whether the petitioners were in this country on 28.2.72
is immaterial. It has been found by the Court of Settlement that the
predecessor of interest of the petitioners died here in 1982 leaving behind the
petitioners as his heirs who have inherited the said house as successor-in-
interest and he continuously lived in this country and paid income tax of his
business till his death. The government most illegally declared the case
property as abandoned property—Bangladesh Abandoned Property (Control,
Management and Disposal) Order, 1972 (P.O. 16 of 1972), Article—2.
Bibi Zarina
and others Vs. Government of Bangladesh and others, 20 BLD(HCD) (HCD) 164.
ABATEMENT
Abatement
A
case under Order 9 Rule 13 C.P.C. does not abate for non-substitution of the
heirs of the deceased plaintiff—Code of Civil Procedure, 1908, Order 9 Rule 13.
Sharif Ullah
Patwary and others Vs. Jharna Dhara Chowdhury and another, 14 BLD(HCD)257
Abatement
Under
section 12 of the Ordinance an acquisition proceeding stands abated if
compensation has not been paid within 6 months (now one year) from the date of
the decision of the authority concerned for acquisition of the property in
question. But in the instant case the question of abatement is not relevant
since no such case was made out in the writ petition—Acquisition and
Requisition of Immovable Property Ordinance, 1982 (11 of 1982), Section-12.
Subash
Chandra Das and others Vs. Bangladesh, 16BLD (AD) 119.
Substitution
and Abatement
Where
the legal representatives of a party to a proceeding have already been brought
on record in a connected and interdependent proceeding, even though in a
superior Court, it is totally unnecessary to repeat the same process in the
lower Court. In such a case there. is no question of abatement—Code of Civil
Procedure, 1908 (V of 1908), Order XXII.
Akhtar Banu
being dead her heirs: Alhaj Md. Hossain Khan and others Vs. Habibunessa and
others, 16 BLD (AD) 273.
Abatement
Rule
9 of Order XXII provides for setting aside abatement or dismissal on the
satisfaction of the Court that the party concerned was prevented by sufficient
cause from continuing the suit—Code of Civil Procedure, 1908 (V of 1908), Order
XXII Rule 9.
S.M. Anisur
Rahman Vs. Bangladesh and others, 16 BLD(HCD)299
Abatement
P.O.
69 of 1972 envisages abatement of all kinds of suits and other legal proceedings
against the Government whether or not related to acquisition under the State
Acquisition and Tenancy Act, 1950 when the Government opts not to be a party
thereto. P.O. 90 of 1972 provides for abatement only of suits and other legal
proceedings in which the legality or otherwise of the State Acquisition and
Tenancy Act or any amendment made thereto or for acquisition of any property
made there under is called in question. Both the Orders aim at abatement of a
suit and there is no inconsistency or mutual exclusiveness between the two.
Partial abatement of a suit has not been contemplated under P.O. 90 of 1972.
Bangladesh
Vs. Chowdhury Tanbir Ahmed Siddiky, 17 BLD (AD) 131.
Abatement
Abatement
of a suit precludes fresh suits on the same cause of action, although there is
no trial on merit of the case. If abatement is not set aside the applicant is
deprived to the opportunity of proving his case only on account of his culpable
negligence or lack of vigilance. Refusal to condone delay may result a meritorious
matter being thrown out without any hearing. It is ordinarily always desirable
that delay is condoned and substitution is allowed so as to decide a case on
merit upon hearing the parties unless there are deliberate negligence on the
part of the applicant—Code of Civil Procedure, 1908 (V of 1908), Order XXII
Rule 9(2)(3).
Abdul Kader
Mondal & ors. Vs. Md. Shamsur Rahman, 19 BLD(AD) 183
ABSORPTION
Absorption
The
term ‘absorption’ in service terminology means taking in or accommodating a
public servant found or declared to be a surplus. Absorption is a mechanism by
which surplus employees are taken in and assimilated in the service. The
appellant’s terms and conditions of service are to be guided and regulated by
Section 6(1) of the Ordinance of 1985 under which his appointment was made.
Therefore, the notification for absorbing the appellant’s contract service on a
permanent basis is evidently illegal and without any lawful authority.
Lt. CoL
(Retd) Nazimuddin Ahmed Vs. Bangladesh and others, 15 BLD (AD) 178.
Ref: Shahbaz Vs. State, 8 DLR (FC) 20 = PLD
1956(FC) 46; Lt. Col. G.L. Bhattacharya Vs. State, 16 DLR (SC) 442=PLD 1964
(SC) 503; Pakistan Vs. Md. Nimayatullah Farukhi, 21 DLR(SC) 238 – Cited.
Absorption
The
High Court Division was not well- grounded in law in directing the petitioners
to absorb/appoint the writ petitioners against specific posts within a
specified period which is purely an executive act. The petitioners will
appoint/absorb the left-out writ petitioners as and when vacancies are available.
Government
of Bangladesh Vs. Md. Jahangir Hossain & ors., 19 BLD (AD) 170.
ACADEMIC
COUNCIL
Academic
Council
The
Post Graduate Cell of the Academic Council of the Dhaka Medical College has no
authority to change Government and University Policy. The Cell is no legal
entity. The Academic Council has the power to make recommendations only and not
to make any decision itself—Bangabandhu Sheikh Mujib Medical University Act
1998 (Act I of 1998) Sections—6 and 45
Dr. Manzoor
Rasheed Chowdhury v. The Principal, Dhaka Medical College, Dhaka and others, 22
BLD (HCD) 6.
ACCOUNTABILITY
AND TRANSPARENCY
Accountability
and Transparency
In
a democratic society it is the convenience of the voters that shall be honoured
in matters relating to delimitation or polling centre and not of any Chairman,
official or individual. Well linked communication, territorial unity and
distribution of population are pre-conditions in these matters.
Md. Sirajul
Islam v. Bangladesh and others, 22 BLD (HCD) 625.
Ref:
Abdul Wahab Chowdhury Vs. Md. Abu Taher and others, 6BLC(AD) 151.
ACQUISITION
Acquisition
Sub-Section
I of section 17 of the Ordinance provides that no property acquired by the
Govt. shall, without prior approval of the Govt., be used for any purpose other
than the purpose for which it was acquired under the Ordinance coming into
force on 13.4.84 and having not being given retrospective effect, it cannot hit
the contract earlier concluded— Acquisition and Requisition of Immovable
Property Ordinance, 1982, (Ordinance No. 11 of 1982).
Pronab Kumar
Chakraborty and others Vs. The Govt. of the People’s Republic of Bangladesh and
others, 14 BLD (HCD) 2.
Acquisition
Under
section 5 of the Act the acquisition of a property takes effect from the day of
the notification in the official gazette.
Under
section 8B of the Act the Government is competent to release a property from
acquisition before payment of compensation to its owner but not after
that—Emergency Requisition of Property, Act, 1948 (XIII of 1948), Sections-5
and 8B.
Shah Ekramur
Rahaman Vs. Secretary, Ministry of Land, Dhaka and others, 14 BLD(HD)538
Acquisition
Payment
of compensation and abatement or revocation of the acquisition proceeding for
non-payment or non-deposit of compensation
Section
10 of the Ordinance provides for payment of compensation to the persons
entitled to the award made under section 7 of the Ordinance before taking over
possession of the property unless prevented by any contingency mentioned in
sub-section (2) of Section 10 of the Ordinance.
The
question of abatement or revocation of the acquisition proceeding under section
12 arises only when the compensation is not paid to the persons interested or
entitled to the award or not kept in a deposit account in the Public Account of
the Republic under subsection (1)of Section 10 of the Ordinance.
Abatement
of an acquisition proceeding takes place if the acquiring authority does not
“pay’ or “deposit’ compensation in terms of Section 10 within one year from the
date of decision of the Government made under Section 5 of the Ordinance. The
requiring body must deposit the compensation money before the expiry of one
year from the date of decision of the Government—Acquisition and Requisition of
Immovable Property Ordinance, 1982 (11 of 1982), Sections-lO and 12
Bangladesh
Vs. Subash Chandra Das and others, 15 BLD (AD) 17.
Acquisition
Non-utilisation
of land acquired for specific purpose
Mere
non-use of the acquired land for the specific purpose for which the purported
acquisition was made will not give any right to its previous owner to get
return of the same— Emergency Requisition of Property Act, 1948 (XIII of 1948),
Sections—3 and 5.
Al-Haj Abul
Basher being dead his heirs: Hosne-Ara Begum and ors. Vs. Bangladesh and ors.,
17 BLD (AD) 321.
Acquisition
Whether
the requiring body had paid the amount within one year of the said date is a
matter between the Government and the requiring body. It is not the case of the
petitioner that he was not paid compensation or that his compensation money was
not deposited within one year from the date of decision to acquire under
section 5 or the proviso to section 4(3)(b) of the Ordinance. As such he has no
business to enquire when the requiring body paid the amount of compensation to
the Government—Acquisition and Requisition of Ordinance, 1982(11 of 1982),
Section—4(b) and 5.
Md. Alauddin
Khandker Vs Government of Bangladesh, 20 BLD (AD) 147
Acquisition
Before
publication of the preliminary notice of the acquisition under section 3 of the
Ordinance an agreement between the requisitioning authority and the requiring
body is required to be concluded. Such an agreement is a sine quo non for the
exercise of power under section 3 of the Ordinance— Acquisition and Requisition
of Immovable Property Ordinance, 1982 (11 of 1982), Section—3.
Md. Masudul
Hussain and another Vs. The Deputy Commissioner, Dhaka and others, 15 BLD (HCD)
493.
Acquisition
Non-application
of mind of the authority in making the order of acquisition.
The
settled law is that the requisitioning authority/acquiring body must strike a
balance between the demand made by the requiring body and the suffering of the
expropriated land owner and come to a conclusion of its own after independent
application of mind.
Md. Masudul
Hussain and another Vs. The Deputy Commissioner, Dhaka and others, 15BLD(HCD)
493
Acquisition
The
decision of the Government to acquire any land for a public purpose or in the
public interest shall be final and such decision shall be conclusive evidence
that the property is needed for a public purpose or in the public interest.
There
is no provision in the Ordinance for withdrawal from acquisition after the
process of acquisition has reached its finality— Acquisition and Requisition of
Immovable Property Ordinance, 1982(11 of 1982), Sec tion —5.
M. A. Salam
alias Afidus Salam V Government of Bangladesh and others, 15 BLD (HCD) 578.
Acquisition
After
finality has reached to a proceeding for requisition and acquisition and
compensation has been paid for the property, there is n scope for withdrawal
from acquisition an return of the property to its former owner— Emergency
Requisition of Property Act, 194 (XIII of 1948), Section—8B.
Md. Matiur
Rahaman Vs. Ban glades and others, 15 BLD(HCD) 331
Acquisition
There
is no principle of law under which once a property has been validly acquired
for a public purpose, as admitted by Government and has vested in the requiring
body then even if the aid property be utilized for a different purpose, the
acquisition shall not stand voice A simple reading of section 8B of the A shows
that it does not come into operation the circumstances of the case. So the
order i withdrawal from acquisition in question cannot be sustained—East Bengal
(Emergency’ Requisition of Property Act, 1948(XIII 1948), Section—8B.
Brahamanbaria
Pourashava Vs. Secretary, Ministry of Land Reforms, Government of Bangladesh
and others, 19 BLD(AD) 87.
Acquisition
Claim
for release of unutilized acquire land is not a vested right and nor failure of
the requiring body to utilize the land acquired within 3 years from the date of
acquisition in view of the decision of the Government creates no constitutional
or legal right in the petitioners who claim for release of such land.
Non-payment of compensation within one year from the date of decision of the Government
for acquisition of land as contemplated under section 12 of the Ordinance does
not render such land liable to be released. Section 12 is not applicable to the
facts of the instant cases which was started long before the Ordinance came
into force in view of the provision of amended section 79 of the 1953 Act as no
retrospectively can be read into section 12 of the Ordinance—Town Improvement
Act, 1953 ( XIII of 1953), Sections—22, 29(1), 79(2), 93A and 93B, Acquisition
and Requisition of immovable Property Ordinance, 1982 (II of 1982), Section—12.
Md. Jamir Au
and others Vs The Secretary, Ministry of Land & ors., 20 BLD (AD) 245.
Acquisition
Since
Legislature is competent to legislate fixing amount of compensation as well as
manner of assessment of compensation, the amendment made in sections 31 and 34
of the Ordinance cannot be said to have violated the right of the petitioners
to have adequate compensation in respect of the land acquired under the
ordinance—Constitution of Bangladesh, 1972, Articles—42(2) and 1 16A
Acquisition and Requisition of immovable property (Amendment), Act 1994 (XX of
1994), Sections—31 and 34.
Md. Shajahan
All Khan and others Vs. Govt. of Bangladesh, 20 BLD (HCD) 60
Acquisition
From
the correspondences between the Government and the requiring body it is clear
that the publication of the final notice in the Gazette under section 5(7) of
the Act is in process. In the circumstances, the order of the High Court
Division could pass under the law was to direct the appellants either to
derequisition the case property under section 8B of the Act or to finally
acquire the same by publishing in the Gazette a notification under section 5(7)
of Act. The High Court Division wrongly exceeded its jurisdiction in assuming
the executive functions of the Government by directing release of the case
property in favour of the writ petitioner–(Emergency) Requisition of Property
Act, 1948 (XIII of 1948), Sections—5(7) and 8B.
Govt. of the
People’s Republic of Bangladesh Vs Abdul Wahab Mia & ors., 21 BLD (AD) 94
Acquisition
For
assessment of compensation for the acquired property “the period of 24 months’
shall be the period preceding the date of notice under section 5(1). But there
should be some proximity between the date of notice under Section 5(1) and the
notice of final acquisition under Section 5(7)—Emergency Requisition of
Property Act. 1948(XIIl of 1948), Section—5(1)(7).
Bangladesh
Vs. Luxmi Bibi and others, 14 BLD(AD)165
Acquisition
The
Government’s choice to withdraw any property from acquisition must be exercised
before the payment of compensation and the order to withdraw must be done by a
gazette notification—Emergency Requisition of Property Act, 1 948(XIII of 1
948),Section—8B.
Bangladesh,
represented by the Secretary, Ministry of L.A. & L.R. and others Vs. MIs.
Commercial Trust of Bangladesh Ltd. and others, 14 BLD(AD)72.
ACTION
Action
The
word ‘action’ in sub-section (3) read along with sub-section (1) of section 74
of the Ordinance cannot mean anything else than a suit. A case against the
Corporation in matters of limitation is governed by the special law as provided
in sub-section (3) and not by the general law of limitation.
Bangladesh
Agricultural Development Corporation Vs. Abdul Barek Dewan & others, 19 BLD
(AD) 106.
Action in
aid of Supreme Court
The
Supreme Court being the guardian of the Constitution and the protector of the
good social norms and civil society in a democratic country, all authorities,
executive and judicial in the Republic shall act in aid of the Supreme Court as
enshrined in Article 112 of the Constitution—Constitution of Bangladesh, 1972,
Article—I 12.
Ain-O-Salish
Kendra (ASK) & ors. Vs. Government of Bangladesh & ors., 19 BLD (HCD)
488.
ADDITION OF
PARTY
Addition of
Party
The
powers of the Courts under Order 1 Rule 10 CPC are unfettered. When a Plaintiff
takes a hostile stand against the common cause and interest of other
Co-Plaintiffs, he may be transposed to the category of the Defendant—Code of
Civil Procedure 1908 (Act V of 1908), Order 6 Rule 17 read with Order I Rule 10
and Section 151.
Md. Abdul
Baset Khan and others Vs. Sree Sukha Ranjan Dhar and others, 13 BLD (HCD) 608
Addition of
party
Addition of
a person as Defendant
The
Court, as a rule, does not adds a person as Defendant, when the Plaintiff is
opposed to such addition except in exceptional circumstances, where addition is
absolutely necessary.
Agrani Bank,
Nilphamari Branch Vs. MI S. Johan Keller and others, 13 BLD (HCD) 644.
Addition of
party in a writ petition
The
scope and purpose of a writ petition are manifestly different from a. civil
suit. The principles relating to addition of parties in a civil suit are not
protanto applicable to a writ petition—Constitution of Bangladesh, 1972,
Article- 102.
Mr. Moudud
Ahmed Vs. Mr. Anwar Hossain Khan, Advocate and others, 15 BLD (AD) 12
Addition of
Party
The
question of title cannot be determined in a suit for ejectment of a monthly
tenant. The petitioner, who is not a tenant under the plaintiff, cannot claim
to be added as a defendant in the suit on the plea that the suit property is a
vested property and the plaintiff had no title therein—Code of Civil Procedure,
1908 (V Of 1908), Order I Rule 10.
Additional
Deputy Commissioner (Revenue) and Assistant Custodian, Vested Property, Barisal
Vs. Md. Mozammel Haque and another, 16 BLD (AD) 237.
Addition of
Party
Court may
strike out or add parties
Since
there are specific allegations against the petitioner in the plaint, the truth
or otherwise of which can only be decided at the trial on taking evidence, the
High Court Division and the trial Court rightly refused the petitioner’s prayer
for striking out his name from the plaint—Code of Civil Procedure, 1908 (V of
1908), Order I Rule 10(2).
Ghulam
Rahman Vs. National Bank Limited and other,, 16 BLD (AD) 250.
Addition of
Party
Under
Order I Rule 10(2) C.P.C. the Court has the power to add or strike out a party
at any stage of the suit.
Under
certain circumstances a lessee may be impleaded in the suit as a defendant even
in the presence of his lessor—Code of Civil Procedure, 1908 (V of 1908), Order
I Rule 10(2).
Sree Gobinda
Chandra Karmakar and others Vs. Sree Shanti Rani Talukder and others, 16 BLD (HCD)
6.
Addition of
Party
An
application for being added as a party in a pending suit must be a bonafide
one. It can be allowed only when it appears to the Court that the presence of
the applicant in the suit is necessary for effective adjudication of the
matters in issue. In the instant case the applicants having set up a different
geneology and claiming interest in the suit land on the basis of their purchase
during the pendency of the suit cannot be added as parties at the peremptory
hearing stage of the suit for unnecessarily prolonging the proceeding— Code of
Civil Procedure, 1908 (V of 1908), Order I Rule 10.
Aynaddin
Howlader and others Vs. Maniruzzaman (Mani) and others, 16 BLD (HCD) 391.
Addition of
Party
It
clearly lays down that the Court can direct addition of a party under two
circumstances, namely (1) when the Court finds that he ought to have joined
either as a plaintiff or as a defendant in the suit but he has not been so
joined or (2) whose presence is felt necessary n order to enable the Court
effectually and completely to adjudicate upon and settle all questions involved
in the suit, in which case he becomes a proper party, though not a necessary
party—Code o Civil Procedure, 1908 (V of 1908), Order I Rule 10(2).
Mrs.
Jahanara Begum Vs. Govt. of Bangladesh and others, 16 BLD(HCD)464
Addition of
party
The
object of Rule 10(2) of Order I C.P.C. is to enable the Court at any stage of
the proceedings to add any person as a party thereto whenever it is found
necessary for effectual and complete adjudication of all questions involved in
the suit.
Order
VI Rule 17 C.P.C. provides for amendment of pleadings at any stage of the
proceedings when such amendment is considered necessary for complete
adjudication of the matters in issue. A belated prayer for addition of a
necessary party or for amendment of pleadings by itself is no ground to refuse
such a prayer once it is found necessary in the interest of justice.
Section
96(2) of the S.A.T. Act also requires that all necessary parties should be
brought before the Court for proper adjudication of the matter before it—Code
of Civil Procedure, 1908 (V of 1908), Order I Rule 10(2) and Order VI Rule 17,
State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), Section—96(2).
Mst. Hasina
Khatoon and another Vs. Md. Samsur Rahman and others, 17BLD (HCD) 177.
Addition of
party
To
maintain an application under Order I Rule 10 C.P.C. for being added as parties
or an application under Order XXII Rule 4 of the Code for substitution the
applicants must show that they and their predecessor-in interest have had
subsisting interest in the subject matter of the proceedings in question. In
the absence of any personal interest of the deceased in the subject-matter of a
proceeding his successors do not come within the ambit of legal
representatives—Code of Civil Procedure, 1908 (V of 1908), Order I Rule 10 and
Order XXII Rule 4.
Bainchitala
Junior High School Vs. Md. Abdur Rashid & ors, 17 BLD (HCD) 513.
Addition of
party
Under
Order 1 Rule 10(2) of the Code of the Civil Procedure the Court has the power
to add at any stage of the proceedings any party thereto whose presence is
considered necessary in order to enable it to effectually and completely
adjudicate upon all questions involving the suit.
Musammat
Umme Kulsum Vs. Shamiyana Rahman and ors., 18 BLD (AD) 13.
ADDITIONAL
EVIDENCE
Additional
evidence
Production
of additional evidence in the appellate court
Additional
evidence may be allowed at the appellate stage only when the court finds it
necessary for the pronouncement of the judgment or for any other substantial
cause. At any rate, it must be the necessity of the court and not of a
party—Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27.
Md. Serajul
Islam Vs. Sree Binoy Bhusan Chakraborty and others, 15 BLD (HCD) 241.
Additional
evidence
Order
41 Rule 27 C.P.C. empowers the appellate Court to take additional evidence,
even suo motu, if after going through the evidence it finds that additional
evidence is necessary for writing out a proper judgment. At any rate, the
requirement for additional evidence must be the requirement of the court
itself. An application for adducing additional evidence by a party before the
appellate court enters into evidence is clearly premature and cannot be
entertained.
Order
41 Rule 29 C.P.C. requires that the appellate court before taking additional
evidence must specify and record the point or points to which additional
evidence is to be confined.
Begum Syeda
Noor Vs. Md. Kadam Au Bhuiyan and others, 15 BLD (HCD) 432.
Additional
evidence
An
application for adducing additional evidence can be allowed only when the
appellate Court finds it necessary to pronounce a proper judgment—Code of Civil
Procedure, 1908 (V of 1908), Order XLI Rule 27.
Daulat
Chandra Gope alias Mrityunjoy Gope and others Vs. Mosammat Monowara Begum and
ano., 16 BLD (AD) 251.
Additional
evidence
Additional
evidence can be accepted by the appellate Court only where the trial Court has
refused to admit evidence which ought to have been admitted or where the
appellate Court requires it to pronounce a proper judgment. It is never
intended to give an additional opportunity to the appellant of to fish out new
evidence for filling up the lacuna in his case—Code of Civil Procedure, 1908 (V
of 1908), Order XLI Rule 27(I).
Mohammad Ali
Akhand Vs. Bahatan Nessa Bewa and others, 18 BLD (AD) 50.
AD-INTERIM
ORDER
Ad-interim
order when can be revised
A
court which is competent to pass an interim order in a proceeding before him is
also entitled to amend, vary or rescind the said order as and when found
necessary.
Chittagong
Cox ‘s Bazar Bilashi Malik Samity Vs. Harisadhan Deb Brahman, 15 BLD (HCD) 467
Ad-interim
order in a pending proceeding
A
court which is competent to pass an ad- interim order in a proceeding before
him, has the right to amend, vary or rescind the ad- interim order as and when
found necessary. Since the miscellaneous appeal was pending before him the
learned District Judge was entitled to modify. revise or cancel his order.
Chittagong
Cox ‘s Bazar Bilashi Malik Samity and others Vs. Harisadhan Deb Brahman, Advocate
and others, 15 BLD (HCD) 467.
ADJOURNMENT
Adjournment
Adjournment
of a case is essentially a matter of discretion of the Court. but it has to be
exercised judicially. Adjournment cannot be allowed as a matter of course, even
if both the parties ask for it. No adjournment should be granted unless
“sufficient cause” is made out for it.
Mahbubur
Rahman and others v. Agrani Bank and another, 22 BLD (AD) 223.
ADMINISTRATIVE
TRIBUNAL
Jurisdiction
of the Administrative Tribunal
An
Administrative Tribunal has exclusive jurisdiction to hear and determine any
application made by any person in the service of the Republic or of any
statutory authority in respect of the terms and conditions of his service or in
respect of any action taken in relation to him as a person in such service but
such an application shall have to be
made within 6 months of the making or taking the impugned order or
action—Administrative Tribunal Act. 1980 (Act VII of 1981), Section—4.
Sonali Bank
Vs. Ruhul Amin Khan, 14 BLD (AD) 171.
Administrative
Tribunal
It
does not provide for any period of limitation for filing Departmental Appeals
from Departmental orders—These are provided for in the relevant Service
Regulations of various Statutory Authorities—Administrative Tribunals Act,
1980.
Md. Nurul
Huq—IV Vs Governor, Bangladesh Bank and others, 14 BLD (AD) 5.
Administrative
Tribunal
Under
the Administrative Tribunals Rules a Tribunal before rejecting an application
on the ground that the application was not in accordance with Rule
3(1)(2)(3)(4)(5) should give the applicant an opportunity for making the
application in accordance with those provisions. If any necessary party was not
impleaded or was not properly described, the applicant should get an
opportunity to correct the application—Administrative Tribunal Rules, 1982, Rule
—3(1 )(2)(3)(4)(5).
Md. Ali
Emdad Vs. Labour Director and others, 18 BLD (AD) 137.
Jurisdiction
of Administrative Tribunal
Under
section 4 of the Act the Administrative Tribunal has exclusive jurisdiction to
hear and determine an application filed by any person in the service of the
Republic in respect of the terms and conditions of his service or in respect of
any action taken in relation to him as such the expression ‘action taken in
relation to him as a person in the service of Republic’ includes the order of
transfer. Thus, the remedy against the impugned order of his transfer lies to
the Administrative Tribunal—Administrative Tribunals Act, 1980 (VII of 1981),
Section -4.
Md. Shamsul
Haque Vs. The Govt. of Bangladesh and others, 16 BLD (HCD) 557.
Administration
Tribunal
In
a duly conducted disciplinary proceedings the respondent was found guilty of
misconduct and corruption, the penalty for which is compulsory retirement from
of service or removal/or dismissal from service and none else. With the concurrence
of Public Service Commission the authority concerned awarded the delinquent
officer the penalty of compulsory retirement from service. Neither the
Administrative Tribunal nor the Appellate Administrative Tribunal had the
authority to reduce the penalty of compulsory retirement to one of stoppage of
promotion for a certain period—Government Servants (Discipline and Appeal)
Rules, 1985, Rules—2(f) and 4(5).
Bangladesh
Vs. A.M. Mansur Ahmed and others, 18 BLD (AD) 18.
Administrative
Tribunal
It
is clear from the wording of the second proviso to sub-section (2) of section 4
of the Administrative Tribunal Act that the legislative intendment behind this
provision is to exclude the proceedings governed by the Administrative Tribunal
Act from the operation of the benefit conferred by sub-section (2) of section
29 of the Limitation Act— Administrative Tribunal Act, 1980 (VII of 1981),
Section—4(2). Limitation Act, 1908 (IX of 1908), Sections—5, 14 and 29(2).
Abul Bashar
Vs. Investment Corporation of Bangladesh & anr., 20 BLD (AD) 294.
Jurisdiction
of Administrative Tribunal
Question
of payment of subsistence to the government servant during suspension, relates
to terms and conditions of service within the jurisdiction of the
Administrative Tribunal—Administrative Tribunal Act, 1980(VII of 1981),
Section—4, Constitution of Bangladesh, 1972, Articles—102 and 117.
Sheikh Abdul
Hakim Vs Govt. of Bangladesh and others, 20 BLD (HCD) 306.
ADMIRALTY
COURT
Admiralty
Court’s power to return plaint In the absence of power to reject Plaint,
the
Admiralty Court can return the Plaint to the Plaintiff for presentation to a
Court with proper jurisdiction if there is no cause of action triable by it or
in case it otherwise lacks Jurisdiction—Admiralty Courts Act, 1861.
Modina
Vegetable & Oil Refinery Industries (Private) Ltd. Vs. M. T. Doleres and
others, 13 BLD (AD) 211
Admiralty
Court
Discretionary
Jurisdiction
In
view of the apparent contradiction in the amount of actual damage claimed by
the plaintiff the Admiralty Court exercised its discretionary jurisdiction and
fixed the amount of money for release of the vessel from arrest at Tk. 1 Crore
which far exceeds the actual damage assessed by the defendant- respondents
surveyor.
S.M. Monirul
Islam Vs. M. V. You Bang, 19 BLD (AD) 91.
Admiralty
Court
An insurer
of the cargo can be added as a co-plaintiff
Rule
12 of the Admiralty Rules should also be construed to permit addition of an
insurer to be added as a co-plaintiff in a pending admiralty suit after the
admiralty jurisdiction is already invoked by a competent person under section 6
of the Act if it requires interest in the vessel on the basis of subrogation.
Order
I Rule 10(2) of the Code permits addition of a third party nature of its claim,
if its presence is necessary in order to dispose of the suit completely and for
adjudication of all the questions involved in the suit between the parties in
order to avoiding multiplicity of proceedings and conflict of decisions.
Questions involved in the suit means not merely the questions involved in the
suit as originally framed. Similarly the Court has power to add not only those
persons who were necessary parties on the date of the suit but also persons who
subsequently become necessary parties— Admiralty Court Act, 1861, Section—6,
Code of Civil Procedure, 1908 (V of 1908), Sections—117 and 141, Order 1 Rule
10(2), Admiralty Rule, 1912, Rules—3, 12 and 51.
Doon Valley
Rice Ltd. Vs. MV YUE YANG & ors., 19 BLD (HCD) 447.
Admiralty
Court
The
language of the Section 6 of the Admiralty Court Act, being very specific and
definite, the Insurer is not included among the persons entitled to raise a
claim before the Admiralty Court—Admiralty Court Act, 1861, Section—6.
Eastern
Insurance Co. Ltd. Vs. D.B. Deniz Nakllyati T.A.B. and others, 14 BLD (AD)38.
Admiralty
Court
The
High Court of Admiralty shall have jurisdiction over any claim by the owner or
consignee or assignee of any bill of lading of any goods carried into any port
in England or Wales in any ship, for damage done to the goods or any part
thereof by the negligence or misconduct of or for any breach of duty or breach
of contract on the part of the owner, master or crew of the ship, unless it is
shown to the satisfaction of the Court that at the time of the institution of
the cause any owner or part owner of the ship is domiciled in England or Wales:
Provided always, that if in any such cause the plaintiff do not recover twenty
pounds he shall not be entitled to any costs, charges, or expenses incurred by
him therein, unless the Judge shall certify the cause was a fit one to be tried
in the said Court.
It
appears that in order to attract section 6 of the Admiralty Court Act, 1861
“goods have to be carried into any port of England or Wales” and as far we are
concerned for the words “England or Wales” obviously we are to read
“Bangladesh”.
In
the instant case the cargo in question had never been brought to any port in
Bangladesh by the defendant No. 1 vessel. Unless the goods in question are
carried into any port of Bangladesh, section 6 of the Admiralty Court Act, 1861
cannot be made applicable and as such the plaint is liable to be returned—.
Admiralty Court Act, 1861, Section—6.
National
Steel Industries Ltd. Vs. M.V. Ritz & ors, 19 BLD (HCD) 240.
Admiralty
Court
The
Admiralty Court had jurisdiction to hear and determine marine accident for
damages over Inland Water Ways in the province which is similar to that of the
Court of Admiralty in England.
Bangladesh
Inland Water Transport Corporation. Vs. Al-Falah Shipping Lines Ltd. and others,
17 BLD (AD) 136.
Admiralty
Court
The
High Court of Admiralty exercised jurisdiction over claims for towage on the
high seas and not within the body of county and this jurisdiction was extended
by section 6 of the Admiralty Court Act, 1840 to claims within the body of a
county—Admiralty Court Act, 1840, Section—6.
Bangladesh
Inland Water Transport Corporation Vs. Al-Falah Shipping Lines Ltd. and others,
17BLD (AD) 136.
Admiralty
Court
Section
7 of the Admiralty Court Act, 1861 lays down that the High Court of Admiralty
shall have jurisdiction over any claim for damages by any ship—Admiralty Court
Act, 1861, Section—7.
Bangladesh
Inland Water Transport Corporation Vs. Al-Falah Shipping Lines Ltd. and others,
17 BLD (AD) 136
Admiralty
Court
Action-in-rem
Since
the action was in-rem against the vessel and a decree has been passed against
the vessel the vessel is liable to be sold in auction for the recovery of the
plaintiffs decretal dues.
Volodymyr
Portnov Vs M V TERPSICHORE, 20 BLD (HCD) 305
Admiralty
Court
Jurisdiction
of the Admiralty Court
The
plaintiffs case is that the cargo in question has been delivered to a person
who is not entitled to it under the bill of lading. it is thus a case of total
non-delivery of goods which brings it within the ambit of the Admiralty Court
Act, 1861. The suit is thus maintainable in law and there is no reason to
return the plaint—Admiralty Court Act, 1861, Section—6.
Doon Valley
Rice Limited Vs. M. V. YUE YANG, 16 BLD (HCD) 469.
Admiralty
Court
Action in
Rem under Admiralty Jurisdiction
In
an action in rem under the Admiralty Jurisdiction the proceeding is commenced
by the arrest of the res the ship.
Doon Valley
Rice Ltd. Vs. M. V. YUE YANG, 16 BLD(HCD)469
Admiralty
Court Frustrated Cargo
To
become a ‘frustrated cargo’ a cargo must be shipped under valid documents to a
lawful consignee and must reach an inadvertent or misdirected port where the
importer is not traceable.
Since
the goods were deliberately brought into this country as intended by the
shippers and owner of the goods, the cargo did not reach Bangladesh either due
to inadvertence’ or ‘misdirection’, or that the consignee was ‘untraceable’ and
as such the cargo in question does not fall within the mischief of section 138,
of the Act to be dealt with as frustrated cargo—Customs Act, 1969 (IV of 1969),
Section—138.
Mian Ahmed
Kibria Vs. Govt of Bangladesh and ors., 18BLD(HCD)459
Admiralty
Court
Section
6 of the Act vests jurisdiction in the Admiralty Court to try a suit wherein
the plaintiff seeks relief for damage done to the goods or any part thereof by
the negligences or misconduct or for breach of duty or contract by the ship
owner, master and crew of the ship—Admiralty Court Act, 1861, Section—6.
Sadharan
Bima Corporation Vs M V BIRBA and others, 20 BLD (AD) 184
Admiralty
Court
A
scrap vessel, purchased in an auction held by the High Court Division in an
admiralty suit, is not assessable for customs duties and other charges on the
basis of auction price but on the basis of tariff value fixed by the government
under section 27(5) of the Customs Act for scrap vessels—Customs Act 1969 (1V
of 1969), Section—27(5).
Md. Didarul
Kabir v. Commissioner of Customs & ors., 22 BLD (HCD) 181.
Admiralty
Rules
Rules
23 and 31 of the Admiralty Rules are enabling provisions and do not in any way
circumscribe the discretionary jurisdiction of the Admiralty Court to either
reduce or enhance the amount of Bank Guarantee for release of the arrested
vessel—Admiralty Rules, 1912, Rules—23 and 31.
S.M. Monirul
Islam Vs. M. V. You Bang, 19 BLD (AD) 91.
Admiralty
Suit
Had
there been any of collision between two vessels, naturally it would cause
damage both the Vessels and defendants vessel would get at least some sign of
damage as a result of collision.
Bangladesh
Inland Water Transport Corporation Vs. MIS. Masud Navigation Co., 13 BLD (HCD)
129.
Bill of
Lading
The
Charter Party Agreement having not been incorporated in the bills of lading it
will be unjust and unreasonable to saddle the consignee with any conditions and
limitations thereof.
Samsun
Shipping Corporation Vs. MIS. Hossain and sons and ors., 15 BLD (AD) 125.
Ref:
(1983) 1 All E.R. 1121; (1990) 3 S.C.C. 481—Cited.
Admiralty
Suit
An
action in rem against a ship will not lie for payment for the supply of bunkers
to the vessel which was on account of charterers and not on the authority of
the owners of the vessel.
Marine Oil Broking Company Pte. Ltd. v. m. v.
Daizu-Maru and others, 22 BLD (HCD)312
Ref:
The “Yuta Bondarovskaya” (1998) 2Ll. L.R. 357.
Admission
Admission
of signature in bainapatra genuineness
In
the absence of any reliable evidence that the executant put his signature in
the bainapatra on receipt of the consideration, mere admission of the signature
in the disputed bainapatra by itself does not prove the genuineness of the
transaction.
Md. Fazlul
Haque Vs. B.H. Rahman @ Mahbubur Rahman and others, J5BLD (HCD) 228
Ref:
Nasir Ahmed Khan Vs. Md. Ismat Begum, 21 DLR(SC) 145; Muhammedi Steamship Co.
Ltd. and another Vs. Messers, Doda Limited, Chittagong, 1ODLR 474; Kambhan
Lakshmanna Vs. Tangirals Vchakates Warls, 2 DLR(PC) 83; Pirbhu Dayal Vs. Tuta
Ram, A.I.R. 1922 (Allahabad) 401; 134(IC)635-Cited.
Admission
Admissions
are not conclusive proof of the matters admitted but they may operate as
estoppels against the maker. But the party is at liberty to prove that
admissions were made under mistake of law or factor that these were untrue or
were made under threat, inducement or fraud—Evidence Act, 1872(1 of 1872),
Section-31
Sonali Bank
Vs. Mr. Hare Krishna Das and others, 16 BLD (HCD) 159.
Adultery
The
word ‘adultery’ means voluntary sexual intercourse between a married person and
a person of the opposite sex which is not the other spouse during the
subsistence of the marriage.
Eva Sunanda
Chowdhury Vs Subir Sarker, 21 BLD (HCD) 8.
Adverse
possession
When
the plaintiff after getting into possession under an agreement retained the
same with clean animus that he has become the absolute owner of the property in
complete negation of title of the true owner, his enjoyment of such property
would be solely in assertion of hostile title. To sustain a claim of title by
adverse possession it is incumbent upon the claimant to prove that he has been
in continuous possession of the disputed property for over 12 years in assertion
of his hostile title.
Mohammad
Abdul Jalil Miah Vs. Nirupama Ritchil and others, 17 BLD (AD) 63.
Adverse
possession
Acquisition
of title on imperfect document
As
the plaintiffs exclusively possessed the suit land for over 12 years to the
complete ouster of the defendants therefrom they have acquired a valid title in
the suit land even on the basis of the defective deed of gift.
Amirunnessa
and others Vs. Abdul Mannan Howlader and others, 17 BLD (HCD) 251.
Adverse
possession
Since
the plaintiff has no possession in the suit land, the suit for declaration of
title on the basis of adverse possession is not maintainable—Specific Relief
Act, 1877 (I of 1877), Section—42.
Kala Miah
Vs. Sree Gopal Chandra Paul and others, 18 BLD (HCD) 670.
Adverse
Possession
Possession
is not adverse where original occupation is preferable to lawful title.
Md. Chan
Mahmood and others Vs Md. Hossain Ali, 20 BLD (HCD) 407.
Ref:
10DLR(SC) 174—relied.
Adverse
Possession
Receipt
is not a deed of title and cannot therefore, confer title to the plaintiff
under section 54 of Transfer of Property Act. But uninterrupted adverse and
hostile possession over a period of 12 years confers title upon the plaintiff.
Courts below on misreading evidence on record and on misconception of law wrongly
held that elements constituting adverse possession are lacking in the instant
case.
Sree
Santipada Datta being dead his heirs: Aranangsha Datta and others. v. Satish
Chandra Das & ors., 22BLD (AD)246
Ref:
16 DLR SC 287; 49 DLR(AD)61;36 DLR(AD)261; AIR 1935 P.C. 53; (1947)52 C.W.N.
382; 40 DLR AD 62.
Adverse
presumption
When
an action is taken or decision is taken by maintaining a file. that file must
be produced before the court to show that the act was done properly. In the
instant case, the relevant file has been withheld. Hence, presumption under
section 114(g) of the Act shall apply. Inspite of repeated orders, the file was
not produced by the respondents with whom those were lying. In such
circumstances, the Court is constrained to draw an adverse presumption under
section 114(g) of the Act– Evidence Act, 1872 (I of 1872), Section—i 14(g),
Wireless Telegraphy Act, 1933(XVII of 1933), Section—5.
Mr.
Chowdhury Mohmood Hossain v. Bangladesh and others, 22 BLD (HCD) 459.
Advertisement
of cigarette
Advertisement
of cigarette and cigarette related products are steps detrimental to life and
body of the people—Article 31 of the Constitution is directly contravened by
advertisement in any form of telecasting and board- casting of cigarette/bidi
commercials on the television and radio, billboards etc.
Professor
Nurul Islam Vs. Government of Bangladesh, 20 BLD (HCD) 377.
Affidavit
Careless
preparation of affidavit by the lawyer creates problem for quick dispensation
of justice.
K.M. Nurul
Islam Vs. Secretary, Ministry of Civil Aviation and others, 19 BLD (HCD) 1.
Age—A
regular appointee and an appointee on a contract basis
The
difference between a regular appointee and an appointee on a contract basis is
that the former retires at the prescribed age unless he is dismissed or removed
earlier but the latter’s service comes to an end on the expiry of the contract
period if not earlier terminated.
Lt. Col.
(Retd) Nazimuddin Ahmed Vs. Bangladesh and others, 15 BLD (AD) 178.
Agent
An
agent is paid by his principal only, to whom he owes his contractual duty, and
will be in a situation of conflict of interest and dishonesty if he receives
any remuneration from a third party—Contract Act 1872 (IX of 1872), Section—217
S.M. Faziul
Haque v. Salahuddin Ahmed and another, 22 BLD(HCD)155
Agent
An
agent is not himself a party to any contract entered into by his principal
through him with the third party if he posed as a disclosed agent. As such no
question of his liability to such third party for any breach can arise—Contract
Act 1872 (IX of 1872), Section—2 17.
S.M. Faziul
Haque v. Salahuddin Ahmed and another, 22BLD(HCD)155
Aggrieved
Person
Action
taken by the Speaker or his failure to take action on the resignation letters
of 147 members of the Parliament is not sacrosanct from judicial review and
court’s jurisdiction is not barred under Article 78(2) of the Constitution to
examine the legality of any action or inaction of the Speaker, if a really
aggrieved person complains against the same. Since the petitioner is not an
aggrieved person he has no locus standi in the matter.
Md. Raufique
Hossain Vs. The Speaker, Bangladesh Parliament and others, 15BLD (HCD) 383
Aggrieved
person
‘Any person
aggrieved’ and ‘sufficient interest’
Any
person, though he may not sustain any personal injury, is qualified to be a
person aggrieved and can maintain an action for judicial redress of any public
injury arising from breach of some public duty or for violation of some
provision of the Constitution or the law and seek enforcement of such public
duty and observance of such constitutional or legal provision. [Per A.T.M.
Afzal, C.J1
The
expression ‘any person aggrieved is not confined to individual affected persons
only but it extends to the people in general as a collective and consolidated
personality.[Per Mustafa Kamal J.]
The
expression ‘any aggrieved person’ means not only a person who is personally
aggrieved but also one whose heart bleeds for his less fortunate fellow-beings
for a wrong done by the Government or a local authority. [Per B.B. Roy
Choudhury, J.] —Constitution of Bangladesh, 1972, Article-102
Dr.Mohiuddin
Farooque Vs. Bangladesh and ors., 17 BLD (AD) 1.
Aggrieved
person
The
petitioner is moving the application for her personal interest as well as for,
the interest of all the residents of the Gulshan Model Town who are in fact
enjoying the greeneries and the Gulshan Lake with their environmental
facilities. Since it relates to common interest of all the people of the
Gulshan Model Town Area, the petitioner is an aggrieved person and thus has got
the LocusStandi to file the instant writ petition— Constitution of Bangladesh,
1972, Articles— 102.
Mrs. Parvin
Akhter Vs. The Chairman, Rajdhani Unnayan Kartipakkha and others, 18 BLD (HCD) 117.
Aggrieved
person
Article
102 of the Constitution makes only an aggrieved person entitled to file an
application for enforcement of any of the fundamental rights conferred by Part
III of the Constitution or when such person is aggrieved by an order or
proceeding taken against him by an authority or persons performing any function
in connection with the affairs of the Republic or of a local authority.
Mian Ahmed
Kibria Vs. Govt. of Bangladesh and ors, 18 BLD(HCD) 459
Aggrieved
person
The
dispute regarding variation of population cannot be resolved in a writ petition
under Article 102 of the Constitution since it requires adjudication on facts
and on evidence and that the petitioner is not a person aggrieved within the
meaning of Article 102 of the Constitution—Constitution of Bangladesh, 1972,
Article—102, Pourashava Ordinance, 1977(XXVI of 1977), Section—21.
Md. Khalilur
Rahman Vs Government of Bangladesh and others, 20 BLD (AD) 152
Aggrieved
person
The
writ petition has been filed just to protect the alleged interest of intending
promoters of banking companies, and as it not been alleged that this writ
petitioner has any connection with any existing bank, his status cannot be
construed as an aggrieved person—Constitution of Bangladesh, 1972, Article—
102.
BRAC v.
Professor Mozaffar Ahmed and others, 22 BLD (AD) 41
Aggrieved
Person
An
‘aggrieved person’ is a man who has suffered a legal grievance and who has been
wrongfully deprived of his right or interest in certain things arising out of
any action or decision of any authority or person. A person who has suffered no
loss cannot invoke the aid-of Article 102 of the Constitution.
Mrs.
Nurjahan Begum Vs. Bangladesh and others, 14 BLD(HCD)558
Aggrieved
Person
An
‘aggrieved person’ is a man who has suffered a legal grievance and against whom
a decision has been given, which has wrongfully deprived him of something, or
wrongfully refused him something, or wrongfully affected his interest. A person
who has suffered no loss cannot be an aggrieved person and he cannot invoke the
aid of Article 102 of the Constitution.
Mrs.
Nurjahan Begum Vs. Bangladesh and others, 14 BLD (HCD) 559.
Ref:
42 DLR 342; 29 DLR (HCD) 125; 34 DLR (AD)34; 44 DLR (HCD) 197; 17 DLR (Dhaka)
191; 45 DLR 301; 39DLR (AD) 3—Cited.
AGREEMENT
An
agreement which is void ab initio cannot be validated by ratification. An
agreement for sale of the suit land not being enforceable against a minor it
cannot be enforced against the promisor as well for lack of mutuality–
Contract Act, 1872 (IX of 1872), Section —24.
Md. Julhash
Mollah and another Vs. Ramani Kanta Malo and another, 14 BLD (AD)263
Agreement
Although
an agreement for transfer of the right of an heir apparent or spes successions
is invalid and unenforceable in law, conveyance of an estate by such a person
to a purchaser for valuable consideration is not void. If the estate expectant
subsequently acquires interest in the property, he is bound to make good the
transfer and the court will compel him to carry out the agreement—Transfer of
Property Act, 1882 (IV of 1882), Section —43.
Khatibun
Nahar and others Vs. Syed Hafizullah and others, 15 BLD (HCD) 565.
Agreement
Oral
agreement for sale
Although
oral agreement for sale of an immoveable property is not barred by any law,
nevertheless it is always viewed with some suspicion. Unless such an agreement
is proved by most convincing evidence and circumstances, any decree for
specific performance of contract is hardly passed by the Court—Specific Relief
Act, 1877 (I of 1877), Sections—42.
Md. Moslemuddin
and ors. Vs. Md. Jonab Ali and another) 17 BLD (AD) 328.
ALLUVIATION
AND DILUVIATION
The
provisions of the order take effect only with respect to lands which
re-appeared after Part -V of the Act came into force in the locality. The suit
land alleged to have accreted prior to that date, the trial Court ought to have
decided this question on taking evidence—State Acquisition and Tenancy Act,
1950 (XXVIII of 1951) and P.O. 135 of 1972.
Abdul Aziz
Bepari and others Vs. Govt. of Bangladesh & ors, 14 BLD (HCD) 225.
Alluviation
and Diluviation
When
the reformation of a diluviated land was complete before the coming into force
of part V of the Act, provisions of amended subsection (3) of section 86 shall
have no application in respect of the said land. Similarly, accretion which
took place before coming into force of part V of the Act, shall remain beyond
the scope of subsections (1)(2) of section 87 of the Act.
Hajee Fayez
Ahmed Vs. Shafiul Alam and another, 15 BLD(HCD)524
ALTERNATIVE
REMEDY
Alternative
Remedy-Whether bars writ jurisdiction?
Inspite
of an alternative remedy by way of an appeal, an aggrieved person may invoke
the writ jurisdiction under Article 102 of the Constitution where the vires of
a statute or statutory provisions is challenged and the alternative remedy is
not efficacious and adequate—Constitution of Bangladesh, 1972, Article—102.
Ahmed
Hussain and 39 others Vs. The Collector of Customs, Customs House, Chittagong
and others, 15 BLD (HCD) 256.
Alternative
Remedy
Provision
for appeal and other efficacious remedy stand as bar against writ petition
When
the Customs Act makes a provision for appeal against imposition of penalty by
the customs authority and the Act contains provisions mitigating the rigour of
payment of the full amount of the penalty it cannot be said that the petitioner
has no equally efficacious remedy entitling him to invoke writ jurisdiction.
The
time spent by the petitioner in pursuing the writ petition may provide a good
cause for entertaining the time barred appeal before the Board of Revenue.
M/s. Mohammad
Brothers represented by its Proprietor Md. Shahidullah Vs. The Collector of
Customs and another, 16 BLD (AD) 83.
Alternative
Remedy
No bar-when
legality of the proceeding is challenged
Rejection
of writ petitions against criminal proceedings on grounds of availability of
alternative remedy by way of quashing of the proceedings cannot be a bar
against further writ petitions against the same criminal proceedings when the
very legality of the institution of the proceedings is under challenge—
Constitution of Bangladesh, 1972, Article— 102(2)(b)(i).
Shahriar
Rashid Khan Vs. Bangladesh and others, 17 BLD (HCD) 113.
Alternative
Remedy
The
Dean of the Faculty of Medicine being the officer of the University within the
meaning of Article 52 of P.0.11 of 1973 the remedy provided under Article 52 is
equally efficacious. It provides for enquiry by a Commission consisting of such
persons who need not be officers of the University. So the writ petition is not
maintainable— Constitution of Bangladesh, 1972, Article— 102, Dhaka University
Order, 1973 (P.O. 11 of 1973), Article—52.
Professor
(Dr.) M.A. Hadi. Vs. Bangladesh and others, 17 BLD (HCD) 631.
Alternative
remedy
An
alternative remedy by way of appeal under a statute will not be a bar to a writ
petition under Article 102(2) of the Constitution if there is a non-relaxable
pre-condition for bringing the appeal.
The
constraint of relinquishing the Office of Mutawalli prior to bringing an appeal
is non-relaxable. Therefore the High Court Division was wrong in summarily
rejecting the writ petition merely because the appellant had an alternative
remedy under section 32(2) of the Waqf
ordinance, constitution of Bangladesh
1972,Article—102, Waqf Ordinance, 1962 (I of 1962), Section—32(2).
Tafijul Huq
Sikder Vs. Bangladesh and others, 18 BLD (AD) 269.
Alternative
Remedy
For
the violation of an inchoate right by executive exercise in a dispute raised in
an ordinary commercial contract to which a statutory body is a party, the
petitioners remedy, lies in a civil suit and not in writ
jurisdiction—Constitution of Bangladesh, 1972, Article—102.
ARK
Associates Ltd. and ors Vs. The Chairman, Board of Directors, Dhaka Water
Supply, 19 BLD (HCD) 349.
Alternative
Remedy
Since
the petitioner did not avail of the alternative forum of appeal as provided in
the Customs Act and as the said forum being an equally efficacious forum to
seek remedy against the claim, the petition filed under Article 102(2) of the
Constitution and the Rule obtained there upon should be discharged on the said
ground—Constitution of Bangladesh, 1972, Article—102(2), Customs Act, 1969 (IV
of 1969), Section—193.
M/s. Delicia
Dairy Food Ltd. Vs. The Collector of Customs and others, 19 BLD (HCD) 396.
Alternative
Remedy
Mere
allegation of violation of the provisions of law cannot give rise to any cause
of action for filing a writ petition when there is forum for seeking remedy
against the impugned order—Customs Act, 1969 (IV of 1969), Section—196A,
Constitution of Bangladesh, 1972, Article—102.
Zahur Ahmed
Vs. The Commissioner of Customs, 19 BLD (HCD) 163.
Alternative
Remedy
When
a provision for appeal in a statute is attended with an inviolable and
non-relaxable condition of payment of fine or extra duty in full then it can be
said that the petitioner has no equally efficacious remedy. In the instant case
the petitioner having released the goods on payment of additional customs
duties and sales tax ought to have asked for refund under section 33 of the Act
within six months. He having not availed of this alternative efficacious remedy
the writ petition is not maintainable on this score as well. [Per Latifur
Rahman, C. J.]—Customs Act, 1969 (IV of 1969), Section—33.
Bangladesh
and others Vs Mizanur Rahman, 20 BLD (AD) 212
Alternative
remedy
Where,
as provided in section 32(2), no show cause notice was issued within the
prescribed period of three years limitation, the question of exhausting the
alternative remedy of filing an appeal under section 196 before filing a writ
petition does not arise— Customs Act 1969 (IV of 1969), Section— 32(2) and 196.
Chand
Textile Mills Ltd. v. The Commissioner of Customs, 22 BLD (HCD) 374
AMENDMENT OF
A DECREE
Amendment of
a decree
Amendment
of a decree in respect of any clerical or arithmetical mistake is contemplated
by section 152 C.P.C. but amendment of a substantial nature is beyond its
scope.
Abdul
Motaleb and others Vs. Shahed Ali and others, 14 BLD(AD) 141
Amendment of
a decree
The
scope of section 152 is very limited. The decision on a successful application
under this section cannot materially affect the decree except correcting some
insignificant error or accidental omissions. There is no limitation for filing
an application for amendment of the decree. But the limitation for filing an
appeal runs from the date of the original decree and not from the date on which
the decree is subsequently amended under section 152 of the Code.
In
exercise of the power of review the Court may amend the decree in any way or to
any extent which it thinks proper. The starting point of limitation in such a
case is the date of the new decree drawn up on review— Code of Civil Procedure,
1908 (Act V of 1908), Section—152 and order 47 C.P.C
Bangladesh
Vs. Luxmi Bibi and others, 14BLD (AD)165.
Amendment of
a decree
There
is no mention in the section of any time limit for correction of any mistake
occurring in a judgement, decree or order. There being no question of
limitation, an application for correction 35 years after the date of the decree
was allowed—Code of Civil Procedure 1908 (V of 1908), Section— 152
Chand Mia v.
M. A. Rajput Ghosh Bahadur & ors., 22 BLD(HCD)220
Amendment of
judgments, decrees or orders
When
a matter actually decided by the Court is not included in the decree, such
omission may at any time be corrected by the Court either suo-motu or on tile
application of a party so as to carry out its real intent— Code of Civil
Procedure 1908 (V of 1908), Section—152
Mrs. Nazma
Begum v. Mrs. Arzuda Khatun and others, 22BLD(HCD)504
AMENDMENT OF
PLEADINGS
Amendment of
Pleadings
Before
allowing prayer for amendment, it is to be seen whether the amendment sought
for is merely a formal addition of certain facts or whether the same has
bearing on the nature and character of the suit and if it is found that will
make out a new case having direct bearing on the merit of the case, such
amendment should be refused—Code of Civil Procedure 1908 (Act V of 1908), Order
6, Rule 17.
Md. Ismail
Vs. Motassim Au Chowdhury, 13 BID (HCD) 172.
Amendment of
plaint
Conversion
of a suit from one file to another
Conversion
of a suit from one file to another, does not involves such a change in the
nature and character of the suit as would bar an amendment of the Plaint.
Md. Nazrul
Islam and another Vs. Mrs. Jahanara Hasan and another, 13 BLD (HCD) 544.
Amendment of
pleadings
An
application for amendment of the plaint should not be rejected on the ground
that the preliminary decree was already drawn up, and that re-opening the suit
and adducing further evidence will cause inordinate delay in disposal and
hardship to the parties—Code of Civil Procedure 1908 (V of 1908), Order VI Rule
17.
Md. Hanif
Ali vs Hajera Khatun & ors., 22 BLD
(HCD)217
Amendment of
pleadings
Since
the defendant-petitioner accepted the order of amendment of the plaint and
consequent thereto filed an additional written statement, the order does not
warrant interference—Code of Civil Procedure 1908 (V of 1908), Order VI Rule 17
Mst. Jajia
Khatun v. Md. Tajuddin @ Sukur Mamud & ors., 22 BLD(HCD) 363
Amendment of
pleadings
The
proposed amendment would settle the question whether during the pendency of the
suit the plaintiff was dispossessed or not by defendant No.1 from the suit
land. This will end all pending controversies between the parties and it will
not amount to be a change in the nature and character of the suit—Code of Civil
Procedure, 1908 (V of 1908), Order VI Rule 17.
Shahajadpur
Central Co-operative Bank Ltd. Vs. Md. Majibur Rahman and others, 18 BLD(AD) 81
Amendment of
Pleadings—Striking out
Unnecessary
parties and prayers may be struck out by the court from an election
petitione—57, Code of Civil Procedure 1908 (V of 1908), Order VI rule 17.
Md. Idrish
Ali Bhuiyan v. Dr. Alauddin Ahmed, 22 BLD(HCD)175
Amendment of
pleadings
Power to
discovery and the like—Section 30 of the Code provides that it may be necessary or
reasonable in all matters relating to the delivery and answering or
interrogatories, the admission of documents and facts and the discovery,
inspection, production, impounding and return of the documents or other
material objects producible as evidence etc.
In
the present case the learned trial Court committed an error in applying the
same in an application under Order VI Rule 17 of the Code of Civil Procedure
for amendment of the plaint—Code of Civil Procedure, 1908 (V of 1908),
Section—30, Order VI Rule 17.
Abul Kalam
Bepari Vs. Faziul Huq Fakir, 18 BLD (HCD) 442.
Amendment of
pleadings
New
defence story having remarkable departure from the stand taken in the written
statement—Code of Civil Procedure, 1908, Order 6 Rule 17.
Showkat Ara
Be gum Vs. Md. Wazuddin and others, 14 BLD(HCD)61
Amendment of
pleadings
Rule
17 of the Order VI C.P.C. has two distinct parts-The first part is its
discretion to the Court to allow amendment of pleadings while the second part
directs the Court to allow all such amendments as are necessary for determining
the real questions in controversy
Samarendra
Nath Roy Chowdhury Vs. Abdul Jabbar and others, 14 BLD (HCD) 229.
Amendment of
pleadings
The
guiding principle for amendment of pleadings is that it is to be made for
determining the real questions in controversy. It applies to the amendment of
the plaint as well as to the amendment of the written statement.
Md. Nazrul
Islam Majumder Vs. Tahamina Akhtar @ Nahid and another, 14 BLD (HCD) 299.
Amendment of
pleadings
Under
Order 6 Rule 17 C.P.C. the court has discretion to allow amendment of pleadings
but such discretion must be exercised judicially. The order must reflect due
consideration of the application for amendment and the objection filed against
it.
MS. Begum
and Company Ltd. Vs. Rupali Bank and others, 14 BLD(HCD)514
Amendment of
Pleadings
It
is well settled that once an amendment of the plaint is allowed such amendment
relates back to the date of institution of the suit. But the Court will be
reluctant to allow an amendment which would have the effect of altering the
nature of the suit or it would take away a legal right accrued to the opposing
party by lapse of time—Code of Civil Procedure, 1908 (V of 1908), Order VI Rule
17
Doon Valley
Rice Ltd. Vs. M.. V. YUE YANG, 16 BLD (HCD) 469.
Amendment of
Pleadings
For
advancing the cause of justice a plaintiff deserves full opportunity to place
his case against all parties involved by alleging all relevant facts and by
seeking all possible remedies against them by way of amendment of the plaint.
The plaintiff as the arbiterlitis of his two suits has the liberty to pursue or
not to pursue any one of the two suits. The plaintiff retains the full right to
obtain complete relief in the earlier suit by incorporating facts and prayers
which arose out of subsequent events, no matter whether those facts and prayers
were incorporated in the subsequent suits. Accordingly the trial Court’s order for
amendment of the plaint was restored—Code of Civil Procedure, 1908 (V of 1908),
Order VI Rule 17.
Mohammad
Khaledur Reza Chowdhury Vs. Saleha Begum and ors, 17 BLD (AD) 86.
Amendment of
Pleadings
Since
there was no prayer even for amendment of the plaint the High Court Division
acted illegally in holding that there was no bar in treating the suit as one
for redemption of mortgage and thereupon directing the trial Court to pass a
decree declaring the title of the plaintiff in respect of the mortgaged land
for which it must be set aside but other part of the judgment remanding the
suit to the trial Court was upheld—Code of Civil Procedure, 1908 (V of 1908),
Order VI Rule 17.
Mohd. Eusuf
and ors. Vs. Haji Golam Ban and ors., 17 BLD (AD) 113.
Amendment of
pleadings
For
effectually and completely adjudicating upon and for settling all questions
involved in the suit the Court may allow amendment at any stage of the
proceeding, provided it does not change the nature and character of the
suit—Code of Civil Procedure, 1908 (V of 1908), Order VI Rule 17.
Anwar
Hossain ‘Vs. Shahadat Hossain and others, 17 BLD (HCD) 442.
Amendment of
pleadings
It
is well-settled that the amendment of the plaint may be allowed at any stage of
the proceedings for the purpose of determining the real question of controversy
between the contending parties provided the proposed amendment does not change
the fundamental character and nature of the suit. Subject to this limitation
the power to amend the plaint should be liberally exercised—Code of Civil
Procedure, 1908 (V of 1908), Order VI Rule 17.
Abdul Motaleb
Vs. Md. Ershad Au and others, 18 BLD (AD) 121.
Amendment of
Pleadings
Amendment
of pleadings is essentially a matter of discretion of the Court dictated- by
necessity to completely and effectually resolve all the controversies between
the contending parties. In an appropriate case the Court has the power to allow
amendment of pleadings even at a belated stage provided it does not change the
fundamental nature and character of the suit /case—Code of Civil
Procedure,1908(V of 1908),Order VI Rule 17.
Abdul Hakim
Vs. Secretary, Public Works and Urban Development, Dhaka and others, 18 BLD
(HCD) 170.
Amendment of
pleadings
Under
this Rule the Court enjoys wide powers in allowing amendment of pleadings at
any stage of the proceedings provided that the proposed amendment does not
change the nature and character of the suit or of the pleadings and it does not
cause undue prejudice to the opposite party, law, however, does not permit a
totally inconsistent and contradictory defence in the name of interest of justice
in an exercise under section 151 C.P.C. —Code of Civil Procedure, 1908( V of
1908), Order VI Rule 17.
Mosammat
Hajera Khatun and others vs. Asia Khatun, 18 BLD(HCD) 422
Amendment of
pleadings
Right to
notice
The
petitioners no doubt had a right to a prior notice of hearing of the
application for amendment of the plaint and a further right to a date for
filing a written objection against such a prayer—Code of Civil Procedure, 1908
(V of 1908), Order 5 Rule 2
Md. Habibur
Rahman and others Vs Md. Abdur Rashid and others, 21 BLD (HCD) 227
Amendment of
pleadings
When
a plaint is amended the suit is generally to be taken out from the list of
peremptory hearing in order to enable the defendants to file an additional
written statement, if they so want—Code of Civil Procedure, 1908 (V of 1908),
Order 6 Rule 17.
Md. Habibur
Rahman and others Vs Md. Abdur Rashid and ors, 21 BLD (HCD) 227.
Amendment of
pleadings
Courts
general power to amend
Since
deceased Abul Hashem was made a party in the appeal by sheer mistake and since
his legal representatives had duly been brought on record in the original
proceeding, the Court has ample power under Section 153 C.P.C. to allow the
amendment for making the legal representatives of deceased Abul Hashem parties
in the appeal—Code of Civil Procedure, 1908 (V of 1908), Section—153.
Hakim Ullah
Vs. Motaleb and others, 16 BLD (HCD) 189.
ANALOGOUS
TRIAL
Analogous
trial
Recording of
evidence separately
While
trying suits analogously it is desirable that the Court records evidence
separately in respect of different suits/cases and pronounces judgments
separately. Evidence in one suit or case is no evidence in the other suits or
cases.
Abdul Latif
Chowdhury Vs. Md. Noor Hossain and others, 17 BLD (AD) 230.
Analogous
trial
For
holding analogous trial of suits it is necessary that parties to the suits and
the issues involved therein are the same.
Mokseda Bewa
and another Vs. Amela Khatun and others, 17 BLD (HCD) 474.
Analogous
trial
Consolidation
of suits
The
power to consolidate suits for analogous trial is derived from section 151 of
the Code and is exercised in the interest of justice for avoiding multiplicity
of litigations, needless expenses and inconveniences to the parties
Abdul Wahab
and others Vs. Md. Jahur Ali, 17BLD(HCD) 377
Analogous
trial
Simultaneous/Analogous
trial
Suits
filed under special law cannot be stayed for analogous or simultaneous hearing
of the suit filed under general law, but it may be vice-versa—Artha Rin Adalat
Act, 1990(IV of 1990), Section—5, Code of Civil Procedure, 1908(V of 1908),
Sections—10 and 151.
United
Commercial Bank Limited Vs Messrs. Freshner Bucket & Redging Industries and
others., 19 BLD (HCD) 546.
APPEAL
Appeal
Forum of
appeal, the law that determines:
The
law that determines the forum of appeal is the law that is in existence at the
time of filing the appeal and not the law that was in existence at the time of
institution of the suit.
Md. Ali
Akbar Khan vs. Alimuddin, 13 BLD (HCD) 65
Appeal
Appeal against
order of Revenue officer
An
appeal, whether from original order or from an appellate order, made under any
provision of Part V. of the State Acquisition and Tenancy Act 1950 by a Revenue
Officer, subordinate to a Collector, shall lie to the Collector and for such
appeal the period of limitation is thirty days—State Acquisition and Tenancy
Act, 1950 (Act XXVIII of 1951)..
Abdur Rahman
and others Vs. The Government of the People’s Republic of Bangladesh; 13 BLD
(HCD) 411.
Appeal
against dead person
In
view of the provision of section 42(c) of the Act the defendant-respondent No.
1, the partnership firm has also been dissolved automatically by operation of
law and became non-existent with the death of its partners.
Moreover,
the appellant has brought the instant appeal against the dead persons as
defendant-respondent Nos. 2 to 4 and 6 and also against the dissolved and
non-existent defendant-respondent No. 1. and in that view of the matter, the
appeal is also not maintainable— Partnership Act, 1932 (IX of 1932), Section—
42(c).
Pubali Bank
Ltd. Vs. MIs. Sultana Oil Mills and Soaf Factory, 19 BLD (HCD) 249.
Appeal in
Artha Rin Adalat Cases
At
the time of preferring regular appeal before the High Court Division under
section 7 of the Artha Rin Adalat Am against a decree of the Artha Rin Adalat
the appellant may deposit 50% of the decretal amount before the trial court
either by cash or by Bank Guarantee and the furnishing of Bank Guarantee will
be sufficient to comply with the requirement of section 7 of the Act—Artha Rin
Adalat Am, 1990 (IV of 1990), Section—7.
Habib Bank
Limited Vs. Eastern Bank Limited and another, 19 BLD (HCD) 553.
APPELLATE
COURTS JUDGMENT
Appellate
Courts Judgment
The
appellate court in reversing or affirming the decision of the trial court must
independently consider the evidence on record. In the case of affirming the
judgment, expressions of general agreement with those of the trial court may be
sufficient but in the case of reversal of the judgment, an elaborate
consideration of the evidence is essential—Code of Civil Procedure. 1908 (Act V
of 1908), Order 41 Rule 31.
Nawab Ali Dhakua and others Vs. Abdur Rahman
and others, 14 BLD (AD)229
Appellate
Courts Judgment
It
enjoins a duty upon the appellate court to discuss and consider the evidence
led by the parties on all material points and issues and to give his reasons
and decision thereon. The judgment must indicate that the learned Judge has
applied his mind to all salient facts and points for determination—Code of
Civil Procedure. 1908, Order XLI Rule 21.
Dewan Mohammad
Safar Au and others Vs. The People’s Republic of Bangladesh, 14 BLD(HCD) 92.
Appellate
Courts Judgment
The
appellate Court being the final Court of fact erred in law in failing to come
to its own independent findings on the 8 issues framed and answered by the
trial Court on the basis of the evidence on record—Code of Civil Procedure,
1908 (V of 1908). Order XLI Rule 31.
Amirunnessa
and others Vs. abdul Mannan Howlader and others, 1 7BLD (HCD) 251
Appellate
Courts Judgment
The
suit was for declaration of title with a further prayer for declaring the
disputed kabala as forged and void. The trial Court as well as appellate Court
decreed the suit but accidentally omitted to declare the disputed kabala void.
The High Court Division acting under Order XLI Rule 33 of the Code removed this
accidental mistake and declared the disputed kabala void and cancelled—Code of
Civil Procedure, 1908 (V of 1908), Order XLI Rule 33.
Md.
Azimuddin Pramanik alias Azimuddin Pramanik and others Vs. Jayeda Bibi and
another, 17BLD (HCD) 466.
Appellate
Courts Judgment
The
object of Rule 31 of Order 41 C.P.C. is to see that the Appellate Court acts
judicially and considers the case before him in its entirety answering all
relevant points which call for adjudication. The judgment of the Appellate
Court must be adequate and satisfactory and it must contain findings of his own
on all relevant questions involved in the appeal—Code of Civil Procedure, 1908,
Order4 l Rule 31.
Dr. Ibrahim
Hossain Vs. Mosammat Abeda Khatun and others, 14BLD(HCD)346
Appellate
Courts Judgment
Judgment
of the appellate court must contain the points for determination, the decision
thereon and the reasons for the decision. While reversing the decision of the
trial court, the appellate court is required to reverse the material findings
of the trial court with reference to the evidence on record—Code of Civil
Procedure, 1908 (V of 1908), Order 41 Rule 31.
Shashikanta
Roy Vs. Khitish Chandra Roy and others, 15 BLD (HCD) 96.
Appellate
Courts Judgment
It
requires that the appellate court while deciding an appeal must discuss and
consider the material evidence on record for coming to independent conclusions
on all important points and issues. It is all the more necessary when the
appellate Court reverses the judgment of the trial court—Code of Civil
Procedure, 1908 (V of 1908), Order 41 Rule 31.
Nazir Ahamed
Sajal and others Vs. Abdul Kader Mallik and others, 15BLD(HCD) 463
Appellate
Courts Judgment
The
appellate court whether reversing or affirming the judgment of the trial court
must independently discuss and consider the material evidence on record. In the
case of a reversal of a judgment, the consideration of the evidence must of
necessarily be thorough and more elaborate—Code of Civil Procedure, 1908 (V of
1908), Order 41 Rule 31.
Kalyan
Krishna Goswami Vs. Madhypara High School and another, 15 BLD (HCD) 509.
ARBITRATION
Arbitration—Appointment
of Arbitrator
Objection
as to applicability of the section 8 of the Act is a technical objection which
a party can raise before the trail Court. This objection may enable the others
party to amend their petition and invoke some other section of the
Act—Arbitration Act, 1940 (Act X of 1940), Section—8.
Coal
Controller Government of Bangladesh Vs. Ventura Industries Ltd, 13 BLD (AD) 201.
Arbitration
Scope of the
Court to go beyond award
Court
is not to go beyond the award in order to examine the evidence and to give
opinion on the merit of the award. The Court is competent to set aside on award
where there is error of law on the face of or it is bad on mere peusal.
Adamjee Sons
Limited Vs. Jibon Bima Corporation, 13 BLD (HCD) 200.
Arbitration
Arbitration
Proceeding, Scope of
A
proceeding under Section 14(2) of the Arbitration Act, is not a suit. The
expression suit has neither been defined in C.P.C nor in Arbitration Act. A
Civil Court while trying a suit follows different procedure from that in while
doing so in a proceeding under section 14(2) of the Arbitration Act 1940.
Adamjee Sons
Limited Vs. Jibon Bima Corporation, 13 BLD (HCD) 200.
Arbitration
The
period of 30 days’ limitation, provided under Article 158 of the Limitation
Act, is applicable to an application for setting aside an award.
Md. Shafiqur
Rahman Vs. Mvi. Nazmul Hossain Khan & ors., 13 BLD (HCD) 593.
Arbitration
Scope of
suit when award filed in the Court
Once
an award has been made and the award is filed in Court to make the same Rule of
the Court, no suit can be filed for avoiding the award—Arbitration Act.
Md. Shafiqur
Rahman Vs. Mvi. Nazmul Hossain Khan & ors, 13 BLD (HCD) 593
Arbitration
It
provides for grant of interest in arbitration proceedings but it is the court
one which has been given the power to award interest from the date of its
decree after the Arbitrator’s award is made a rule of the court— Arbitration
Act, 1940 (Act X of 1940), Section—29.
The
Bangladesh Agricultural Development Corporation, represented by its Secretary
Vs. MIS. Kibria and Associates Ltd., 14 BLD (AD) 99.
Arbitration
Pendente
lite interest
An
Arbitrator may allow pendente lite interest if the disputes were agitated
before it, but payment of interest cannot exceed four months ordinarily. He may
allow interest pendente lite for a period beyond four months if the
prolongation of the proceeding is caused by circumstances beyond his control.
He may also allow interest on his award till realisation.
The
Bangladesh Agricultural Development Corporation (BADC), represented by, its
Secretary Vs. M/S. Kibria and Associates Ltd., represented by its Managing Director Syed Golam Kibria,
14 BLD (AD) 99.
Arbitration
Sub-section
I of Section 34 makes the award made by the Arbitrator appealable while
sub-section 4 gives finality to the decision of the Arbitration Appellate
Tribunal. In such matters it acts as a Court deciding the rights of the parties
to receive compensation—Acquisition and Requisition of Immovable Property
Ordinance, 1982 (Ordinance No. 11 of 1982), Section-34(1)(4).
Bangladesh
Vs. Md. Mazibur Rahman, 14 BLD (HCD) 362.
Arbitration
The
implied power of an Arbitrator exercisable by him in his discretion is on the
analogy of the court’s power under section 34 C.P.C. In the absence of any law
or agreement for payment of interest by an Arbitrator his power does not extend
to prereference period. His power to allow pendente lite interest cannot exceed
four months but he may allow interest on his award till realisation—Code of
Civil Procedure, 1908 (Act V of 1908), Section—34
The
Bangladesh Agricultural Development Corporation, represented by its Secretary
Vs. MIS. Kibria and Associates Ltd., 14 BLD (AD) 99.
Arbitration
Bank
Guarantee
Furnishing
of Bank Guarantee does not relieve the petitioner of the obligation of payment
of interest as per terms of the award.
University
of Dhaka Vs Associated department Drillers, 21 BLD (HD) 527
Arbitration
proceeding when commences?
One
trend of judicial view is that in arbitration proceeding commences as and when
an arbitrator is appointed and he enters into the reference while the other
view is that it commences as and when a party to the agreement notifies the
other party by invoking the arbitration clause as to the appointment of an
arbitrator. But the preponderance of authorities supports the latter view.
British
Airways PLC Vs. Bangladesh Air Service Pvt. Ltd., 16 BLD (HCD) 448.
Arbitration
In
an appeal under section 39 of the Arbitration Act the decision of the
arbitrator cannot be reviewed and the appellate Court cannot construct an award
for the arbitrator. The award can be challenged only on the ground of excess of
jurisdiction or incompetence or misconduct on the part of the arbitrator—
Arbitration Act, 1940 (X of 1940), Section— 39.
Bangladesh
Vs. National Construction and Consult Ltd. and others, 17 BLD (AD) 308
Arbitration
Clause
14 of the agreement is to be taken as a composite whole, a self-contained
indivisible covenant, having a meaning and content in its totality. Clause 14
is an arbitration clause stipulating not only that the parties shall submit all
their disputes to arbitration but also that the arbitration shall be “in
accordance with, and subject to the provisions of Arbitration Act. 1950”. [Per
Mustafa Kamal, 3]
Bangladesh
Air Service (Pvt.) Ltd. British Airways PLC, 17BLD (AD) 249
Arbitration
Bangladesh
Courts often follow English law when there is Municipal. on the subject, as in
the field of Marine insurance, but in the English Arbitration Act, 1950 the
procedural law includes the forum for administration and consequently it is a
poor defence to say that clause 14 has not settled the venue of arbitration.
The arbitration “is in accordance with, and subject to the provisions of the
Arbitration Act, 1950” and as such parties do not have to travel far to look
out for the venue beyond the Arbitration Act, 1950 itself. [Per Mustafa Kamal,
3.]
Bangladesh
Air Service (Pvt.) Ltd. Vs. British Airways PLC, 17 BLD (AD) 249
Arbitration—Choosing
forcing forum
There
is nothing in exception Ito Section 28 of the Contract Act prohibiting the
parties to a contract from choosing a foreign forum under the supervision of a
foreign Court for arbitrating in disputes. Such contract does not offend the
main provision of section 28 of the Act because the local Courts still retain
the jurisdiction to decide the lis between the parties. [Per Mustafa Kamal,
J.]—Contract Act, 1872 (IX of 1872), Section—28, Exception 1.
Bangladesh
Air Service (Pvt.) Ltd. Vs. British Airways PLC, 17 BLD (AD)249
Arbitration
Section
28 of the Contract Act deals with making those contracts void which restrict
the right of a contracting party from taking legal actions in the ordinary
Tribunals through usual process of law. Exception (1) to section 28 of the
Contract Act, however, enacts a saving clause in favour of the contract to
refer to arbitration any dispute that may arise between the parties. Hence
arbitration clause is protected by Exception (1) to section 28 of the Contract
Act. [Per Latifur Rahman, J.]
Bangladesh Air
Service (Pvt.) Ltd. Vs. British Airways PLC) 17 BLD (AD) 249.
Arbitration
Grounds for
setting aside award
Misconduct
on the part of the arbitrator is one of the grounds for setting aside the award
but this question cannot be agitated in appeal unless it was raised before the
trial Court—Arbitration Act, 1940 (X of 1940), Section—30.
Bangladesh
Telegraph and Telephone Board Vs. Lithi Enterprise Limited), 18BLD (AD) 1
Arbitration
Where
a reference is made to more than one arbitrators and one of the arbitrators
neglects to act, the other arbitrator or arbitrators shall apply to the court
for appointment of an arbitrator to supply the vacancy and arbitrator appointed
by the court shall have power to act. For non-compliance with this legal
requirement the award made by one Arbitrator cannot be said to be a valid
award. To be binding and enforceable it must .be signed by all the
arbitrators—Arbitration Act, 1940 (X of 1940), Sections—8 and 10
Trading
Corporation of Bangladesh Vs. MIs. Mannesman Handel A.G., 20 BLD(AD) 52.
Arbitration
The
whole purpose of section 34 of the Act is to ensure that the parties to the
agreement would honour the agreement to which they have subscribed themselves
from the beginning—Arbitration Act, 1940 (X of 1940), Section—34
Brexco
Bremer Export Contor Brand Vs M/S. Popular Biscuit Limited, 21 BLD (HCD) 522.
Arbitration
It
is not within the jurisdiction or power of an arbitrator or umpire, in the
absence of an agreement, to grant future interest on the awarded amount till
realisation thereof, which power is within the discretion of the Court—
Arbitration Act 1940 (X of 1940), Section— 29.
M/S. Bux
Shipping Line v. Bangladesh Water Development Board and another, 22 BLD (AD) 93.
Arbitration
Stay of
legal proceedings
Stay
of legal proceedings, filed in respect of any matter agreed to be referred to
arbitration, cannot be granted if there is no proceeding pending for
arbitration in accordance with the arbitration agreement— Arbitration Act 1940
(X of 1940), Section— 34
Paul
Reinhurt Limited and another v. Prime Textiles Spinning Mills Ltd. and others,
22 BLD (HCD) 41.
Arbitration
An
arbitration clause, stands apart from the rights and obligations under the
contract. If the contract itself is void, illegal or fraudulent, the entire
contract along with the arbitration clause would be non est or voidable—
Arbitration Act 2001 (I of 2001), Sections—7 and 10
Bangladesh
Jute Mills Corporation v. Maico Jute and Bag Corporation and others, 22
BLD(HCD) 320
Arbitration—Interim
relief
Until
provisions for interim relief are enacted into the Salish Am 2001, the High
Court Division has no power to issue an order of injunction, in relation to arbitration
proceedings commenced under the said Act— Arbitration Act 2001 (I of 2001),
Section— 41
M/S. Stratus
Construction Company v. Government of Bangladesh, represented by Chief
Engineer, Roads and Highways Department, 22 BLD(HCD)236
Arbitration
The
numbering as a title suit of an application for making an arbitration award a
rule of the Court does not make such application a plaint. Therefore, an
application for rejection of such an application is not maintainable— Code of
Civil Procedure 1908 (V of 1908), Order VII of rule 11, Arbitration Act 1940 (X
of 1940), Section—14(2)
Dhaka
Leather Company Ltd. v. Sikder Construction Ltd. and another, 22BLD (HCD) 125
Arbitration—Presentation
of award
The
period of ninety days for tiling in Court of an arbitration award will only
commence from the date of service of notice making the award—Limitation Act
1908 (IX of 1908), Article—178
Dhaka
Leather Company Ltd. v. Sikder Construction Ltd. & anr, 22 BLD (HCD) 125.
Arbitration
agreement
Any
suit challenging the existence or validity of an arbitration or award is
prohibited, which prohibition is absolute.
A
suit for declaration that a contract is void or that there was no existence of
any such contract, even though it contains an arbitration agreement, is not
barred under the provisions of section 32 of the Arbitration Act
1940—Arbitration Act 1940 (X of 1940), Section—32
Paul
Reinhurt Limited and another v. Prime Textiles Spinning Mills Ltd. and others,
22 BLD (HCD) 41.
Arbitration
agreement
For
a valid arbitration agreement, there need not be a formal agreement executed or
signed by the parties. The agreement must be in writing and accepted by the
parties. No particular form is necessary, and such agreement may be inferred
from a set or series of documents.
The
definition of arbitration agreement has not excluded any agreement between a
national of Bangladesh and a foreign national or corporation from its ambit.
There are no definitions of foreign arbitration agreement or foreign award in
the 1940 Act—Arbitration Act 1940 (X of 1940), Section—2(a).
Paul
Reinhurt Limited and another v. Prime Textiles Spinning Mills Ltd. and others,
22 BLD (HCD) 41.
Arbitration
Sub-section
(1) of Section 14 clearly lays down that after making an award by the
Arbitrator he shall sign the award and give notice in writing to the parties
informing of the fact of making and signing of the award. Subsection (2)
provides for filing the award by the Arbitrator suo-motu in court for making
the award a Rule of the Court and this subsection also provides for filing an
application before the appropriate Court praying for directing the Arbitrator
to file the award in court for making the award a Rule of the Court. The Court
concerned shall direct the Arbitrator to file the award in Court and also shall
give notice to the parties as to the filing of the award in the court.
Sub-section (2) of section 14 does not provide for any time limit to give
direction to the Arbitrator to file the award in Court.
In
the instant case as both the parties were present all throughout the
proceedings till making of the award and signing of it by the Arbitrator, there
is no necessity of giving notice by the Arbitrator to the parties as to the
making of the award or signing of it— Arbitration Act, 1940 (X of 1940), Section—
14(1)(2).
The Chief
Engineer (RHD), Sarak Bhaban, Dhaka Vs. Managing Director, Foundation Engineer
Ltd., 19 BLD (HCD) 142.
ARMY
REGULATIONS
Army
Regulations—Promotion
A
reference to Rule 196 of the Army Rules clearly says that promotion is normally
made in order of seniority except as provided in Rule 197 which says that
promotion to the rank of Lieutenant Colonel and above will be filled in by the
authorised establishment by selection and as such there is no violation of the
Army Regulations 1960—Army Regulations, 1960, Rule—196 and 197
Major General
Moinul Hossain Chowdhury Vs. The Govt. of Bangladesh, 19 BLD (AD) 258.
ARTHA RIN
ADALAT
Artha Rin
Adalat
The
Artha Rin Adalat Am is a special legislation providing for special measures for
speedy realisation of loans given by financial institutions. The Artha Rin
Adalat is a civil court of a defined and limited jurisdiction but it is not a
full-fledged civil court with all its powers and Jurisdiction.
A
defendant cannot claim a set-off or counter-claim in a suit filed under the
Adalat Act as Rule 6 of Order 8 C.P.C. is inconsistent with its jurisdictional
provision. The High Court Division has no jurisdiction to entertain any
application under section 115 C.P.C. against any interlocutory order passed by
the Artha Rin Adalat—Artha Rin Adalat Am, 1990 (Act IV of 1990),
Sections—5(4),5(5), 6 and 7 Code of Civil Procedure (Act V of 1908), Section—I
15 and Order 8, Rule 6.
Sultana Jute
Mills Ltd. and others Vs; Agrani Bank and others, 14 BLD (AD) 196.
Artha Rin
Adalat
The
Artha Rin Adalat, though a special court, is subordinate to the High Court
Division and is therefore amenable to its revisional jurisdiction under section
115 C.P.C.
Sonali Bank
Vs. M.S. Au Tenary and others, 14 BLD (HCD) 457.
Artha Rin
Adalat
Special
Limitation For Appeal
Section
7 of the Act provides for a special period of limitation of 30 days for filing
an appeal against the judgment and decree of the Artha Rin Adalat on depositing
fifty per cent of the decreetal dues.
Md. Zahirul
Islam and another Vs. National Bank Limited and others, 14BLD (AD) 95
Artha Rin
Adalat
Banking
Moazzal
System of Transaction— Moazzal system of transaction is a simple transaction
whereby the bank on credit sells certain properties to the customer on a fixed
profit and the purchaser is required fixed to pay within the stipulated time a
fixed amount of money.
Islami Bank
Bangladesh Ltd. Vs. Messers Shohag Medicine Supply & Ors., 21 BLD (HCD) 1.
Artha Rin
Adalat
Artha
Rin Adalat Am is meant for realisation of any loan advanced to ay party by
financial institution including the present plaintiff Bank. In the instant case
the suit has been filed not for realisation of any loan money from the
defendant who was admittedly not a loanee but he misappropriated the banks money.
By no stretch of imagination the suit comes within the provision of Artha Rin
Adalat Ain.
Agrani Bank
Vs. A.F.M. Enamul Haq, 19 BLD (HCD) 12.
Artha Rin
Adalat
Under
the Artha Rin Adalat Act there is no provision to file a cross-objection under
Order 41, Rule 22 C:P.C—Artha Rin Adalat Ain, 1990 (Act IV of 1990), Sections—6
and7.
Zahirul
Islam and another Vs. National Bank Limited and others, 14 BLD (AD) 95.
Artha Rin
Adalat
By
analysing the provisions of subsections 4 and 5 of Section 5 it cannot be said
that an Artha Rin Adalat is an ordinary civil Court for all purposes and all
the provisions of the Code of Civil Procedure are applicable to it’ The
provisions of C.P.C. are applicable subject to the provisions of this Special
Law—Artha Rin Adalat Am, 1990 and Artha Rin Adalat (Amendment) Am, 1992,
Subsections (4) and (5) of Section—5.
Messrs
MAC—Proprietor, Mahtabuddin Chowdhury and another Vs. Agrani Bank, 14 BLD (HCD)
195.
Artha Rin
Adalat
Under
Section 5(4) the Artha Rin Adalat is deemed” to be a Civil Court vested with
all the powers of a Civil Court. Section 5(5) of the act provides that the
Artha Rin Adalat will follow the provisions of C.P.C. in so far as these are
not contrary to the provisions of this Act—Artha Rin Adalat Am, 1990 (IV of 1990),
Sections—5(4)(5).
Sultan alam
@ S.A. Badal Vs. Rupali Bank Ltd. and others, 14 BLD(HCD)297
Artha Rin
Adalat
Plaintiffs
suit for a declaration of her title in the suit property with an incidental
prayer that the decree of the Artha Rin Adalat is not binding upon her is
maintainable in law. Sections 6 and 7 of the Act do not stand as bar against
her—Artha Rin Adalat Am, 1990 (IV of 1990), Section-6 and 7.
Chaina
Arjuman Banu Vs. Rupali Bank Limited and others, 14 BLD(HCD)321
Artha Rin
Adalat
The
provisions of the Code of Civil Procedure are not applicable for the purpose of
an appeal against an order passed by the Artha Rin Adalat. it not being a
decree, judgment or final order under Order 9, Rule 13 of the Code of Civil
Procedure. An ad-interim order passed by the Artha Rin Adalat is not
appealable—Artha Rin Adalat Am, 1990 (IV of 1990), Section-7.
Aminul Hoque
Vs. Janata Bank and others, 14 BLD(HCD)105
Artha Rin
Adalat
Although
the Artha Rin Adalat is not an ordinary civil court but it is a special forum
of limited jurisdiction, it is subordinate to the High Court Division. Under
section 7 of the Act an appeal lies to the High Court Division from any
judgment and decree passed by the Artha Rin Adalat—Artha Rin Adalat Ain, 1990
(IV of 1990), Section-7.
Sonali Bank
Vs. M.S. Ali Tenary and others, 14 BLD (HCD) 457.
Artha Rin
Adalat
The
Artha Rin Adalat Act, 1990 provides for two remedies against an exparte decree
it is either by an application or by way of an appeal. In both the cases
deposit of 50% of the decreetal amount is necessary. Section 151 C.P.C. is not
applicable in such a situation.
Md. Nur
Islam Vs. Agrani Bank, 15 BLD (AD) 132.
Artha Rin
Adalat
Maintainability
of a suit to challenge the decree passed by the Artha Rin Adalat
If
the petitioners allegation of non-service of summons is correct, his remedy of
a separate suit to challenge the decree is not barred, provided his remedies
under the Artha Rin Adalat Act stood barred at the time of filing of the Suit
for no fault of his own.
Md. Mozammel
Hoque Vs. Sonali Bank and another, 15 BLD (AD) 35.
Artha Rin
Adalat
Only
financial institutions can institute suits before the Artha Rin Adalat for
recovery of loans advanced to borrowers. This is a special law and it has been
specially designed for quick recovery of loans from the borrowers. The Artha
Rin Adalat acts illegally and without jurisdiction in entertaining a suit which
is not for recovery of loans by any financial institution—Artha Rin Adalat Am,
1990 (IV of 1990), Sections—2(Kha) and 5(1).
Md. Harunar
Rashid Vs. Subordinate Judge (Artha Rin), Bogra and others, 18 BLD (HCD)126
Artha Rin
Adalat
To
attract the jurisdiction of the Artha Rin Adalat the plaintiff must be a
financial institution as contemplated under section 2 of the Artha Rin Adalat
Am, because it is only such a financial institution which can file a suit
before the Adalat for realisation of any loan advanced to a party– Artha Rin
Adalat Ain, 1990 (IV of 1990), Sections—2.
Kazi
Jawaherul Islam Vs. Standard Cooperative Society Ltd. and others, J8BLD (HCD)
310
Artha Rin
Adalat
The
Artha Rin Adalat Am is a special legislation setting up special Courts for
prompt realisation of loans by financial institutions. An Artha Rin Adalat is,
therefore, a Civil Court only for limited purposes. A revisional application
under section 115 C.P.C against any interlocutory order passed by an Artha Rin
Adalat is not maintainable—Artha Rin Adalat Ain, 1990 (IV of 1990), Sections—
5,6,7 and 8.
Belayet
Hossain Vs. Bank Indosuez, 18 BLD ‘HCD) 29i
Artha Rin
Adalat
Section
8 of the Am provides that before preferring an appeal the judgment-debtor must
deposit 50% of the decretal amount before the Adalat. Sub-section (4) of
section 8 of the Artha Rin Am provided that no appeal without any such deposit
can be entertained. Where there is no deposit as contemplated under the Artha
Rin Am the tendering of the present appeal without the statutory deposit in
contemplated in law and as such the appeal cannot be entertained—Artha Rin
Adalat Am, 1990 (IV of 1990), Section.8.
Habib Bank
Limited Vs. UAE Bangladesh Investment Company Limited and another, 18 BLD (HCD)
422.
Artha Rin
Adalat
A
suit to set aside the exparte decree is not maintainable in view of the remedy
available in Artha Rin Adalat Act itself—Artha Rin Adalat (Amendment) Am, 1992
(XXV of 1992), Section—5.
M/S.
Sekander Jute Bailing Ltd. vs. Sonali Bank and another, 18 BLD (AD) 268.
Artha Rin
Adalat
Under
section 9 of the Artha Rin Adalat Am, 1990 as amended by Act No. 51 of 1990 all
pending suits instituted by any financial institution stand transferred to the
concerned Artha Rin Adalat. When the decree is passed by a Subordinate Judge
acting as an Artha Rin Adalat, the appellant is required to deposit half of the
decretal amount in the trial court before filing the appeal.
Firoz Miah
Vs. Sonali Bank, Wage Earners Branch, Dhaka and others, 15 BLD (HCD) 127.
Artha Rin
Adalat
A
case pending in the Artha Rin Adalat cannot be heard analogously with a case
pending in any Court created by the Civil Courts Act. A suit under general law
cannot be tagged and heard analogously with a suit under a special law—Code of
Civil Procedure 1908 (V of 1908), Section—24
Ripon
Packaging and Accessories Ltd. v. Eastern Bank Ltd. and another, 22 BLD (HCD) 127.
Artha Rin
Adalat
Bank
Guarantee
Bank
Guarantee are generally given for a limited period but within the limited
period the appeal may not be disposed of by the High Court Division. In order
to avoid such legal difficulty the High Court Division held that Bank Guarantee
should be given till the disposal of the appeal and if it is not possible and
if Bank Guarantee is given for a limited period by the appellant before filing
appeal in the High Court Division, it shall have to extend the period of Bank
Guarantee just before expiry of the previous one and in this way the appellant
shall have to extend the Bank Guarantee one after another till the disposal of
the appeal. If the appellant fails to extend the period of Bank Guarantee
before expiry of the earlier one, then the appeal shall stand dismissed.
Habib Bank
Limited Vs. Eastern Bank Limited and another, 19 BLD (HCD) 553.
Artha Rin
Adalat
Bank
Guarantee
Section
7 of the Am nowhere speaks about bank guarantee. The expression used in
sub-section (2) of section 7 of the Act cannot be construed to be “Bank
Guarantee”. The expression i1 as used in this sub-section means cash money and
not “Bank Guarantee”—Artha Rin Adalat Am, 1990 (IV of 1990), Section—7(2).
Abdus Sattar
and others Vs International Finance Investment and Commerce Bank Ltd., 21 BLD (AD)
77.
Artha Rin
Adalat
Bank
Guarantee is no substitute for cash deposit
Section
7 of the Artha Rin Adalat Am provides for deposit of at least 50% of the
decreetal dues in cash in the trial Court within 30 days of the decree as a
condition precedent for preferring an appeal before the High Court Division.
Bank Guarantee is no substitute for the statutory deposit of cash money in the
trial Court—Artha Rin Adalat Am, 1990 (IV of 1990), Section—7.
Messers
Hossain Traders & ors Vs IFIC Bank Limited, 21 BLD (HCD) 215.
ATTACHMENT
Attachment
In
a pending suit, the provision of the Order 22 Rule 10 is applicable. The words
“during Pendency of the suit” clearly mean before final decree order has been
passed or made in the suit.—Code of Civil Procedure, 1908( V of 1908), Order
22, Rule 10.
Manik Chand
Bibi alias Rezian Nahar and another Vs. Abdul Mutakabbir Chowdhury alias Sufi
Mia Chowdhury 13 BLD (AD) 75.
ATTACHMENT
BEFORE JUDGMENT
For
getting an order of attachment before judgment the petitioner must satisfy the
court in terms of the requirements laid down in Rule 5 of Order 38 C.P.C—Code
of Civil Procedure, 1908, Order XXXVIII Rule 5.
Md.
Moslehuddin Vs. Aziza Begum and others, 14 BLD(HCD)465
Attachment
before judgment
The
power of attachment of property before judgment is an extraordinary power
interfering with a party’s right to deal with its property freely before any
decree is passed and as such the Court should be very circumspect in allowing
such a prayer. No order of attachment can be passed on vague and unfounded
allegations—Code of Civil Procedure,1908(V of 1908),Order XXXVIII Rule 5
Islam Steel
Mills Ltd. Vs. Nirman International Ltd. and ors., 17 BLD (AD) 223.
Attachment
before judgment
To
obtain an order for attachment before judgment the applicant must place some
concrete allegations and sufficient materials before the Court to satisfy it
that the defendant is acting in a manner to indicate that he is trying to
remove certain property or the subject matter of the suit beyond the Court’s
jurisdiction with intent to delay or obstruct the execution of the decree that
may be passed in the suit. No relief can be given on vague, uncertain and
general allegations—Code of Civil Procedure, 1908 (V of 1908), Order XXX VIII
Rule 5.
Lawrence Loat
Ltd. and ors. Vs. AJAX Incorporated Siltrade International Ltd., 17 BLD (HCD)
159.
Attachment
before judgment
Before
passing an order of attachment before judgment the Court must consider the
question of security as the first alternative. Only when the defendant fails to
show cause or fails to furnish the wanted security within the time fixed by the
Court, the Court may pass an order of attachment—Code of Civil Procedure, 1908(
V of 1908), Order XXXVIII Rule 5.
Habibar
Rahman Khan Vs. Nurul islam Khan, 18 BLD(HCD) 73.