BLD’s Ten
Years Civil Digest (1993—2002) Index
DAKHILAS
On
examination of the record it appears that some remarks in some dakhilas and it
appears from the well reasoned lengthy judgment of the High Court Division
dismissing the appeal summarily that they considered these as well as other
aspects of the case. So the contention of the Khaondker that the High Court
Division erred in law in dismissing the appeal summarily since dakhilas Exhibit
1 series, 91 in number, out of which 7 dakhilas for the year 1362 B.S.
contained in statement ‘Amanat’ and the rest granted in a form prescribed under
the Tenancy Act required due consideration as these are the basic documents of
title is not correct.
Abdul
Khaleque and others Vs. Abdul Khalek and others, 19 BLD (AD) 309.
DAMAGE
When
there are materials for ascertaining damages the trial Court illegally refused
to award damages in terms of the agreement for selling medicine and earn
profit—Contract Act, 1872 (XII of 1872), Section—73.
Islami Bank
Bangladesh Ltd. Vs. Messers Shohag Medicine Supply & ors., 21 BLD (HCD) 1.
DECLARATORY
SUIT
Declaratory
Suit
A
suit for mere declaratory relief under Section 42 of the Act without stating
anywhere in the plaint as to the legal character’ or ‘status’ of the plaintiff
enabling him to make such a prayer for declaration is not maintainable in law.
Such a plaint is no plaint in the eye of law and it is liable to be rejected in
exercise of the inherent power of the Court—Specific Relief Act (I of 1877), section-42.
Md. Ayub Vs.
Sonali Bank and others, 14 BLD (HCD) 236.
Declaratory
Suit
Suit
for simple declaration that the termination of plaintiffs service is illegal,
inoperative and not binding upon him without any prayer for consequential
relief is not maintainable in law, it being hit by proviso to section 42 of the
Specific Relief Act, 1877.
Sonali Bank
and another Vs. Chandon Kumar Nand4 15 BLD (HCD) 249.
Declaratory
suit
Discretion
of Court as to declaration of status or right
A
declaratory suit need not be confined within the terms of Section 42 of the
Specific Relief Act. A declaration can be sought for various other matters as
well.
Bangladesh
Water Development Board Vs. Syed Moazzem Hossain and ors., 15 BLD (AD) 239.
Declaratory
suit
Bar to simple
declaration
The
defendant petitioner had taken delivery of possession in the suit property
through Court in pursuance of the order of redemption passed on contest by the
Sub-divisional Magistrate under sub-section (4) of Section 95 of the S.A.T.
Act. Under such circumstances, the plaintiff s suit for simple declaration
without a prayer for recovery of possession is not maintainable in law—Specific
Relief Act, 1877 (I of 1877), Section -42
Md. Osman
Gani Talukder alias Sujat. Ali Talukder Vs. Md. Osman Au Mondal, 16 BLD (HCD) 165.
DECREE
Non-est
Decree
When
a suit stands dismissed for not making the required deposit in time, the
question of the decree being void or nullity is of no relevance. The purchaser
of such a non-est decree cannot derive any benefit out of the favourable
observations made in the suit.
Sumita Naha
Vs. Most. Rokeya Khatun and others, 14 BLD(AD)209
Form of
Decree in a suit for specific performance of contract
The
Appellate Division held that the proper form of decree against the vendor and
the subsequent transferee in a suit for specific performance of contract will
be to direct the specific performance of contract between the vendor and the
vendee plaintiff and to direct the subsequent transferee to join in the
conveyance so as to pass his title to the plaintiff—Code of Civil Procedure,
1906 (V of 1908), Section—2(2).
Ezaher Meah
and others Vs. Most. Shaher Banu and others, 17 BLD (AD) 80
Enforcement
of decrees
Under
Section 16(5) of the Ordinance the Family Court has the power to allow
installments in payment of the decreetal amount as, it deems fit even after the
passing of the decree—Family Courts Ordinance, 1985 (XVIII of 1985),
Section—16(5).
Reshma
Sultana Vs. Khaez Ahmed Mojumder, 17BLD (AD) 72
Jurisdiction
of the Executing Court
Although
the decree is silent about delivery of possession, the executing Court has the
jurisdiction to execute the decree as a decree for specific performance of
contract is incidental to the document of sale—Code of Civil Procedure, 1908 (V
of 1908), Section—2(2).
Md.
Kafiluddin Vs. Md. Sukur Ali Mia, J7BLD(HCD) 147
Decree
Decree
passed being not in terms of U.S. Dollars but in terms of Taka the deposit must
also be in terms of the decree, that is, in taka. So, deposit of the U.S.
Dollars cannot be held to be in accordance with the provision of the Artha Rin
Adalat Ain—Code of Civil Procedure, 1908( V of 1908), Section—2(2)
Habib Bank
Limited Vs. UAE Bangladesh Investment company Limited and another, 18BLD (HCD)
422.
DEFAULTER
Defaulter
A
defaulter in the matter of payment of rent is liable to be evicted from the
suit fremies.
Abdul Mannan
being dead, his heirs: Abdul Basith and others Vs. Abdul Barek, 13 BLD (HCD)
132.
Defaulter
Defendant
being found to be a defaulter and as such he is not entitled to any protection
of ejectment according to provision of Premises Rent Control Ordinance or
Transfer of Property Act—Premises Rent Control Ordinance, 1991 (II of 1991),
Sections—18 and 19, Transfer of property Act, 1882 (IV of 1882), Section—106.
Bashir Ahmed
& ors. Vs. Ayub Au Mollah, 19 BLD (HCD) 537.
DEFECT OF
PARTY
Defect of
party
Objections
about defect of parties must be taken at the earliest stage and that they
cannot be entertained at the Appellate stage—State Acquisition and Tenancy Act,
1950 (Act XXVIII of 1951), Section-96.
Mosammat
Saleha Bibi Vs. Taib Au Mollah and others, 13 BLD (HCD) 677.
Defect of
party
When
the defendants fail to prove that the trial Court’s order absolving the
plaintiffs from the liability of defect of parties was obtained collusively,
the plea of defect of parties is not available to them—Code of Civil Procedure,
1908 (Act V of 1908),Order XI Rule 21.
Md.
Hafizuddin Mondal and others Vs. Sree Dhirendara Nath Singh and others, 14 BLD
(AD) 132.
Defect of
party
Sonali
Bank is a legal entity and as such it shall sue and be sued in its corporate
name. The instant suit filed against the Managing Director of Sonali Bank,
without impleading the Bank itself, is not maintainable in law— President’s
Order No. 26 of 1972 (Bangladesh Bank Nationalisation Order, 1972).
Managing
Director, Sonali Bank and others Vs. Md. Jahangir Kabir Molla and another, 15
BLD (HCD) 575.
Defect of
party
Article
146 provides that Government of Bangladesh may sue or be sued by the name of
Bangladesh. The applicant has to mention a competent official to represent
Bangladesh. If the Government or the statutory public authority is not made a
party or is not properly described in the application, the opposite parties
must raise objection at the earliest stage so that the applicant may get an
opportunity to take necessary steps. If the proper party is not before the
Tribunal, irrespective of any objection raised or not, his application may be
adjudged as incompetent—Constitution of Bangladesh, 1972, Article—146.
Md. Ali
Emdad Vs. Labour Director and others, 18 BLD (AD) 137.
Defect of
party—election matter
When
the petitioner has impleaded all the necessary parties, mere impleading of the
Returning Officer and the Assistant Returning Officer cannot by itself a ground
for holding that there was total non-application of the provisions of Article
50 of the Order.
From
a reading of the prayer portion of the election petition it appears that the
petitioner has fully complied with the provisions of Article 5 1(2) of the
Order and there is no error in the same—Representation of People Order, 1972
(P. 0. 155 of 1972), Articles— 50 and 51(2)
Advocate
Moh. Abdul Hamid Vs. Moh. Faziur Rahman, 18 BLD (HCD) 587.
Defect of
Parties—Misjoinder and Non-Joinder
It
is well-settled law that one of the co owners of a joint property can alone
bring a suit for ejecting a trespasser from the property owned by him and
others. As a co sharer he is entitled to hold every inch of the joint property
until a partition takes place. In such a case the failure to implead other co
sharers to the suit will not affect the plaintiffs right to recover possession
from the trespasser.
The
uniform judicial opinion is that a suit by only one co-sharer in exclusive
possession of a joint property for warding off an invasion to the rights of all
co-sharers is quite maintainable in law—Code of Civil Procedure, 1908 (V of
1908), Order I Rule 9.
Barada
Sundari Paul and others Vs. The Assistant Custodian, Enemy Property, Comilla
and others, 15 BLD (AD) 95.
Defect of
Parties—Non-joinder of Parties
No
suit can fail by reason merely of non- joinder of parties.
Nurul Islam
Vs. Nurus Safa & ors., 20 BLD (HCD) 584
Non-Joinder
and mis-joinder of parties
Joinder
of unnecessary parties and prayers cannot be considered fatal to the trial of
an election petition when there are necessary parties and prayers in that
petition— Representation of the People’ Order 1972 (P.O. 155 of 1972),
Article—58(a)
Md. Idrish
Ali Bhuiyan v. Dr. Alauddin Ahmed, 22 BLD (HCD) 175.
Defect of party
Bangladesh
Krishi Bank is a juristic person that can sue and be sued in its name and as
such in absence of Bangladesh Krishi Bank as defendant the suit against its
employees is not maintainable—Bangladesh Krishi Bank Order, 1972 (P.O. 27 of
1972), Rule—2(4).
Manager,
Bangladesh Krishi Bank and others Vs. Al-haj Md. Nurul Islam and another, 20
BLD (HCD) 179.
DELAY IN
RENEWAL OF PASSPORT
Delay in
renewal of passport
Delay
in renewal of the Passport will be prejudicial to him as he will be deprived of
the opportunity of performing the holy Haj Constitution of Bangladesh, 1972,
Articles— 31,36 and 102.
Government
of Bangladesh Vs Professor Ghulam Azam, 21 BLD(AD) 62.
DELEGATION
OF POWER
A
subordinate legislation cannot delegate to a specified authority the power to
change the identity, status and nomenclature of a constitutionally designated
service. [Per Mustafa Kamal,CJ.]
Secretary,
Ministry of Finance Vs. Mr. Md. Masdar Hossain, 20 BLD (AD) 104.
DEPARTMENTAL
PROCEEDINGS
The
principle of law that a man cannot be vexed twice on the same cause of action
has no application to departmental proceedings. A fresh departmental proceeding
is not barred under the law.
Chaudhury
Aziz Ahmad Hashmatullah Vs. Secretary, Now Principal Secretary), Govt. of
Bangladesh and others, 15 BLD (AD) 13.
DETERMINATION
OF ISSUES
Determination
of issues
It
requires that the Court shall determine issues of law first before settlement
of issues of fact where the case may be disposed of on preliminary issues of
law only.
Since
issues of law and facts have already been framed and the date of peremptory
hearing of the suit has been fixed the trial Court committed no illegality in
postponing decision on the question of limitation—Code of Civil Procedure, 1908
(V of 1908), Order XIV Rule 2.
Hanifuddin
Sheikh and others Vs. Birendra Nath Das and others, 16 BLD (HCD) 388.
Determination
of issues
Issues
of law and facts and parties at issue When the petitioner failed to press for
determination of the issue of maintainability of the suit first after framing
of the issues and waited leisurely till the peremptory date of hearing the
learned trial Court was perfectly justified in rejecting the prayer for
avoiding a peacemeal disposal of the suit—Code of Civil Procedure, 1908 (V of
1908), Order XIV Rule 2 and Order XV Rule 3.
Hatem Ali
and others Vs. Ramjan Ali and others, 16 BLD (HCD) 372.
Determination
of issues
Court
to decide each separate issue framed A plaint cannot be rejected giving a
fragmentary decision on a particular issue when other issues have already been
framed along with the issue of maintainability of the suit on the pleadings of
the contending parties—Code of Civil Procedure, 1908 (V of 1908), Order XX Rule
5.
Jugal
kishore Sarker Vs. Md. Sohrab Ali Sk. and others, 16 BLD (HCD) 549.
DIRECTION
Direction
The
Governor of Bangladesh Bank is a Public Officer for the purpose of part IV and
Order 21 Rule 52 C.P.C. as well as within the meaning of Article 71 of the
Bangladesh Bank Order.
The
Governor of Bangladesh Bank being a Public Officer is under a legal obligation
to obey the direction of the Civil Court for payment of the decretal amount for
satisfaction of the decree and in doing so no independent instrument is
necessary.
Bangladesh
Bank V. Mrs. Rana Awan and others, 15 BLD (HCD) 27.
DIRECTION OF
COURT
Direction of
Court
The
order of the Civil Court directing the Governor of Bangladesh Bank to make
payment for satisfaction of the decretal amount out of the Consolidated Fund of
the Republic does not render the provisions of Articles 85, 88(f), 90, 91 and
92 nugatory. Such an order does not make the constitutional provisions
subordinate legislation—Constitution of Bangladesh, 1972, Articles—85, 88(f)g
90,91 and 92.
Bangladesh
Bank Vs. Mrs. Rana Awan and others, 15 BLD (HCD) 27.
DISCIPLINARY
PROCEEDING
Disciplinary
proceeding
In
a disciplinary proceeding for negligence of duty or contravention of
instructions etc. dishonest intention of the employee is not required to be
proved. The liability in such cases is of no absolute nature. Once it is found
that he is negligent or has contravened any instruction, he is liable for
punishment
Sonali Bank
Vs. Ruhul Amin Khan, 14 BLD (AD) 171.
Disciplinary
proceeding
In
a disciplinary proceeding for negligence of duty or contravention of instructions
etc. dishonest intention of the employee is not required to be proved. The
liability in such cases is of no absolute nature. Once it is found that he is
negligent or has contravened any instruction, he is liable for punishment.
Sonali Bank
Vs. Ruhul Amin Khan, 14 BLD (AD) 171.
Disciplinary
proceedings
The
time limit as embodied in sub-section (2) of section 6 of the Ordinance appears
to be directory because that sub-section of the Ordinance itself enjoins upon
the BDR authority only to be vigilant in concluding the disciplinary
proceedings.
Since
consequence of non-compliance of the provision of time limit is not provided by
the legislature, there is thus interinsic evidence in the section itself which
would indicate that the requirement of the fixation of time contained in
section 6(2) of the Ordinance is not mandatory—Bangladesh Rifles (special
provisions) Ordinance, 1976 (LXXXV of 1976), Section—6(2)
Md. Forkan
Ali Vs Bangladesh & ors., 20 BLD (HCD) 415.
Disciplinary
proceedings
Though
the provision of section 6(2) is directory but the rule should be observed
strictly and the concerned authority should be very agile or vigilant to
complete disciplinary proceedings as early is possible preferably within the
time limit as contemplated in section 6(2) of the Ordinance because that would
be conducive of justice—Bangladesh Rifles (special provisions) Ordinance, 1976
(LXXXV of 1976), Section—6(2).
Md. Forkan
Ali Vs Bangladesh & ors., 20 BLD (HCD) 415.
DISCRETION
Discretion
In
view of the fact that the learned Subordinate Judge by exercising his judicial
discretion by following sound legal principles ordered for impleading opposite
party No.2 as a plaintiff in the suit, this kind of judicial discretion is not
ordinarily open to the revisional jurisdiction of the High Court Division
unless it can be shown that the discretion was exercised arbitrarily or
fancifully—Code of Civil Procedure. 1908( V of 1908), Order XXII Rule 10(1).
Sarafat Ali
Vs. Pranballav Sarker and others, 18 BLD (HCD) 157.
Discretion
The
amended provision of the Insurance Act displaces the discretion of the Court in
the matter of granting interest—Insurance Act, 1938 (IV of 1938), Section—47B,
Code of Civil Procedure, 1908 (V of 1908), Section—34.
Bangladesh
General insurance Co. lid. Vs. Chalna Marine Products Co. lid, 19 BLD(HCD) 439
Discretion
A
discretion once exercised without any opposition will not be interfered with
simply on the ground of availability of alternative efficacious remedy
especially when the decision sought to be appealed from does not suffer any
infirmity of law—Constitution of Bangladesh. 1972, Article—102.
University
of Dhaka & anr. Vs. Professor A K Monwaruddin Ahmed, 20 BLD (AD) 28.
Discretion
Rajuk
cannot permit its decision to be influenced by the dictates of others, how big
they may be, as this would be tantamount to abdication and surrender of its
discretion— Building Construction Act, 1952 .(II of 1953), Sections—9.
A. Rouf
Chowdhury Vs. Bangladesh and others, 20 BLD (HCD) 537.
Discretion
Discretion
cannot be extended beyond the law of evidence to allow a party to the suit, who
did not cross-examine a witness in time without any excuse, allowing it a
further opportunity later on of cross-examining the witness. The whole purpose
for such a discretion is to advance the cause of justice—Code of Civil
Procedure, 1908 (V of 1908), Order XVIII Rule 17, Evidence Act, 1872 (I of
1872), Section—138
Abdul Munim
& ors. Vs. Most. Hazera Zaman& ors., 21 BLD (HCD) 338.
Discretion
The
exercise of discretion must be a real exercise of discretion with due regard to
the statute conferring such discretion— Constitution of Bangladesh, 1972,
Articlel02.
The Chairman
Bangladesh Textile Mills Corporation v. Nasir Ahmed Chowdhury and others, 22
BLD (AD) 199.
DISCRIMINATION
Discrimination
Giving
benefit to some and denying the same to others under the same agreement and
service condition is not only illegal but also the same offends the respondents
fundamental rights—Constitution of Bangladesh, 1972, Articles—28 and 29,
Industrial Relations Ordinance. 1969 (XXIII of 1969), Sections—2(24) and34
Carew and
Company (Bangladesh) lid. Vs. Chairman, Labour Court and ors., 19 BLD (HCD) 30
Discrimination
Since
the Review Committee constituted by the Government recommended for
reinstatement of some police personnel’s, including the respondents,
Government’s refusal to reinstate the respondents without assigning any reason
is clearly discriminatory and as such not sustainable.
Bangladesh
Vs. A.K Al-Mamun and another, 17 BLD (AD) 77.
Discrimination—Equality
before law
Article
27 of the Constitution provides that all citizens are equal before law and are
entitled to equal protection of law and Article 29(1) of the Constitution
provides that there shall be equality of opportunity for all citizens in
respect of employment or office in the service of the Republic.
If
the petitioners merely prepared a list and kept it to themselves or their
different departments for implementation as and when possible the writ
petitioners had nothing to complain about, but when a number of them are
appointed from a list and the appointment of others is postponed pending
inquiry into the genuineness of a list comprising of 1745 persons with which
list the writ petitioners have no concern, they can legitimately complain of
inequality before law and discrimination in public employment.—Constitution of
Bangladesh, 1972, Articles—27 and 29(1).
Government
of Bangladesh Vs. Md. Jahangir Hossain & ors., 19 BLD(AD) 170.
Discrimination
Discrimination
can be claimed only by a person who has been discriminated. As the writ
petitioner was not an applicant for establishing a bank, the question of
discrimination towards him does not arise—Constitution of Bangladesh. 1972,
Article—27.
BRAC v.
Professor Mozaffar Ahmed and others, 22 BLD (AD) 41.
Discrimination
By
issuing an admit card to a candidate in Government service over 40 years of age
and allowing him to sit for an admission test for a course under the Dhaka
Medical College. which is affiliated with the Bangabandhu Sheikh Mujib Medical
University, but disqualifying the writ petitioner who was a candidate also in
Government service over 40 years from admission on the ground that he was
ineligible for being over aged although he was eligible for admission according
to an amended notification of the University, the’ petitioner’s fundamental
right to pursue higher education as guaranteed by the Constitution was
infringed and he was illegally discriminated against.
The
writ petitioner has a brilliant academic career and has been in active service
of the Government. and is presently working in Dhaka Medical College; his case
is an exceptional one. As he was discriminated against in being refused
admission on the basis of a Government order when others have been admitted on
the basis of the same, he should be allowed to pursue his higher studies at the
College without admission test and by increase of one seat by the
respondents—Constitution of Bangladesh, 1972, Articles—27, 28 and 31.
Dr. Manzoor
Rasheed €Chowdhury v. The Principal, Dhaka Medical College, Dhaka and others,
22 BLD (HCD) 6.
DISHONOUR OF
CHEQUES
Dishonour of
Cheques
In
order to make a person liable under section 138 of the Act the payee of a
cheque has to give a notice in writing to the drawer of the cheque within 15
days of the receipt of information by him from the Bank regarding the return of
the cheque as unpaid in terms of clause (b) to the proviso. The drawer of the
cheque is obliged to make the payment within 15 days of the receipt of the said
notice failing which the cause of action for prosecution will arise under
clause (c)—Negotiable Instruments Act, 1881 (XXVI of 1881), Section—138.
S.M. Anwar
Hossain Vs. Md. Shafiqul Alam (Chand) & anr., 19 BLD(AD) 166
DISMISSAL
FOR DEFAULT
Dismissal
for default
An
order dismissing a suit for default for not taking necessary steps by the
plaintiff with regard to the service of summons, which was returned unserved,
can be made only after the expiry of three months—Code of Civil Procedure, 1908
(V of 1908), Order IX Rule 5.
Md. Eklas
Miah Vs. Monohor Ali and others, 17 BLD (HCD) 392.
Dismissal
for default
The
High Court Division did not find bonafide in the application for restoration
taking into consideration intentional negligence, conduct of the advocate and
dragging of the case more than 30 years.
Moniruzzaman
Vs. Mabia Khatun & ors., 20 BLD (HCD) 42.
DISOBEDIENCE
OF INJUNCTION
Disobedience
of Injunction
In
a case or proceeding for violation of injunction, Proper Charge (issue) should
be framed disclosing all material particulars of the allegation so that the
persons allegedly at fault may understand the allegations and take proper
defence.—Code of Civil Procedure 1908 (Act V of 1908), Order 39, Rule 2(3).
Md. Mamrul
and others Vs. Budhan Mohammad, 13 BLD (HCD) 532.
Disobedience
of Injunction
A
proceeding under order 39 Rule 2(3) of the Code of Civil Procedure is, in fact,
if not fully Criminal, then certainly is quasi- Criminal—Code of Civil
Procedure 1908 (Act V of 1908). Order 39, Rule 2(3)
Md. Mamrul
and others Vs. Budhan Mohammad, 13 BLD (HCD) 532
Disobedience
of Injunction
As
there is an adequate remedy against disobedience of an injunction order issued
under order 39 of the Code, as provided in order 39 rule 2, a contempt petition
is not maintainable on this score—Contempt of Courts Act 1926 (XII of 1926).
Section—3, Code of Civil Procedure 1908 (V of 1908), Order XXXIX Rule 2(3)
Momena Begum
v. Dhaka City Corporation and others, 22BLD (HCD)283
Disobedience
of Injunction
Willful
violation of a Court’s order is a matter that concerns public policy relating
to the administration of Justice. No one should be allowed to interfere with
the course of justice by presenting the Court with a fait accompli. If a party
to a proceeding brings about any change in the existing state of things on the
date of the institution of the proceeding, in order to forestall the possible
order of the court, the court may, in a proper case, in the exercise of its
inherent power require the offending party to restore the status- quo ante by
issuing a temporary injunction in mandatory form—Code of Civil Procedure, 1908
(Act V of 1908), Section—151 and Order 39 Rules I and 2.
Babul Kanti
Das and others Vs. Abul Hashem and others, 14 BLD(AD) 242
Disobedience
of temporary Injunction
Order
XXXIX Rule 2(3) of the Code provides for attachment of property and also for
detention in civil prison of the delinquent for disobedience or breach of the
order of restraint passed by the Court. It does not specifically provide for
imposition of fine for violation of disobedience the order of the Court. But in
view of the fact that the appellants volunteer to pay fine in lieu of civil
imprisonment for 5 days. interest of justice will be served if this Court
accept the submission of the Advocate for the appellants for payment of fine in
lieu of civil imprisonment for 5 days—Code of Civil Procedure, 1908 (V of
1908), Order XXXIX Rule 2(3.).
Md. Azizul
Hoque and others Vs Mst, Anwara Khatun, 2OBLD(HCD) (HCD) 141
DISPOSAL OF
APPEAL
Disposal of
appeal
A
Court of appeal shirks its responsibility and acts illegally when it allows an
appeal without discussing and considering any evidence adduced by the
contending parties and considered by the trial court—Code of Civil Procedure,
1908 (V of 1908), Order XLI Rule 31.
Mahmudul Huq
and others Vs. Nowab ali Chowdhury and others, 16 BLD (HCD) 195.
Disposal of
Appeal
It
has long been held that under Order 41 Rule 17 C.P.C the use of the word ‘may’
does not mean that it is open to the appellate court to dispose of the appeal
on merits in the absence of the appellant.
In
the instant case, the High Court Division heard the learned Advocate for the
plaintiff-respondents only and did not know or could not know what possible
could have been arguments of the defendant-appellant against the impugned
judgment and decree of the trial Court. The High Court Division ought to have
either dismissed the appeal for default or ought to have adjourned it to some
other date as it was a part-heard appeal or could have passed other orders but
it was certainly not authorised to consider the appeal in the absence of the
appellant and decide it on merits—Code of Civil Procedure, 1908 (V of 1908).
Order XLI Rule 17.
Government
of Bangladesh and another Vs. Waqer Ahmed and ors, 19 BLD (AD) 230.
Disposal of appeal
On
plain reading of provisions of rule 12, it becomes clear that the appellate
Court is required to fix a day for hearing the appeal unless it dismisses the
appeal and in fixing such day., sufficient time should be given to the
respondent to appear and answer the appeal’ on such day. The phrase to appear
and answer the appeal’ admits of one simple construction, requiring the
respondents to appear on the day fixed for hearing of the appeal under rule
16(2) and answer the points raised by the appellants in support of their
appeal. So, rule 12 does not, in any way, empower and/or authorise the
appellate Court either to allow a respondent to file a written statement for
the first time in appeal or to accept such written statement—Code of Civil
Procedure, 1908 (V of 1908),Order XLI Rule 12.
Narayan
Chandra Saha and another Vs. Jatindra Chandra Saha and others, 19 BLD(HCD) 614
Disposal of
appeal—Duty of appellate Court
The
provisions of Order XLI Rule 31 of the Code enjoins that either reversing or
affirming the decision of the trial Court it is incumbent upon the appellate
court as a final court of fact to consider. assess both oral and documentary
evidence in order to come to his own independent finding particularly when it
reverse the finding of the trial Court—Code of Civil Procedure, 1908 (V of
1908). Section 115,
Besarat
Molla & others Vs Bangladesh represented by Deputy Commissioner, 20 BLD
(HD) 258
DISPUTED
QUESTION OF FACTS
Disputed
question of facts
The
essential question before the High Court Division being as to whether the
Government can decide matters which are the matters for adjudication in a
pending civil suit, in which the Government is a party, and the answer being in
the negative, the High Court Division missed this crucial point and dismissed
the writ petition on the mistaken view that the case involved disputed
questions of fact—Constitution of Bangladesh, 1972, Article —102.
Syed
Mohammad Salem Azam and others Vs. The Secretary, Ministry of Works and others,
14 BLD (AD) 259.
Disputed question
of facts
Distribution
of population in 9 wards with a variation of not more than ten percent being a
disputed question of fact and it cannot be decided in writ
jurisdiction—Constitution of Bangladesh. 1972, Article—102, Pourashava Ordinance,
1977 (XXVI of 1977), Section— 21.
Abdul Mannan
Vs. Bangladesh, 20 BLD (HCD) 188.
Disputed
question of facts
Disputes
have arisen out of contractual rights and obligation and petitioners have also
raised disputed questions of facts which cannot be decided in writ
jurisdiction— Constitution of Bangladesh. 1972, Article- 102,
M. Habib Oil
Mills (BD) Ltd. Vs. Titas Gas Transmission, 20 BLD (HCD) 501
Disputed
question of facts
It
can hardly be disputed that the facts alleged to invoke the writ jurisdiction
and that to have a writ for the redress of respondent’s grievance are primarily
based on disputed facts those said to have affected result of the election of
the post of Chairman the Union or in other words has made consolidation of
result as per provision 3(5) of the Rules— Union Parishads (Election) Rules,
1983, Part—Ill, Rule—39(5).
Md. Mozibur
Rahman Moznu Vs Abdul Halim and others, 21 BLD (AD) 109.
Disputed
questions of facts
Disputed
questions of fact on the basis of indefinite or vague assertions, which are
denied by the respondents. are outside the ambit of Article 102 of the
Constitution. [Per A.M. Mahmudur Rahman, J]
Sultana
Nahar Vs. Bangladesh and others, 18 BLD (HCD) 363.
Disputed
question of facts
Where
the petitioner himself denies the allegations that he is a defaulter but the
news published shows that he is a defaulter, the denial or assertion of such
fact is evidently a disputed question of fact which cannot be resolved in a
writ petition, such disputed question of fact asserted by one party and denied
by other can only be decided in an appropriate suit on taking evidence—
Constitution of Bangladesh, 1972, Articles—102.
M/s. Stadmax
Ltd. Vs. General Manager, Credit information Bureau, Bangladesh Bank and ors.,
18 BLD(HCD) 419.
DIVORCE
Divorce—Talaq
The
relevant Suras and Ayats of the Holy Quran on iddat, reconciliation,
maintenance and mata’a after pronouncement of talaq are to be found in Sura
Al-Baqarah(2:228-237, 241), Sura At-Talaq (65:1-6), Sura A1-Ahzab 33:49 and
Sura An-Nissa (4:35). The Holy Quran divides divorced women into 6
categories… . Separate provisions have been made in the Holy Quran for no or
separate periods of iddats and maintenance for each of the above categories of
divorced women
Md. Hefzur
Rahman Vs. Shamsun Nahar Begum and another, 19 BLD (AD) 27.
Divorce—Talaq-e-tawfiz
When
talaq is effected by the wife in exercise of her right delegated to her by her
husband is known as talaq-e-tawfiz. This talaq carries with it the same
incidents which are applicable in talaq pronounced by the husband. The
talaq-e-tawfiz effective on the expiration of 90 days.
Mrs. Sherin
Akhter and another Vs. Alhaj Md. Ismail, 20 BLD (HCD) 159.
Divorce
without notice to the Chairman
When
divorce is clearly established by. the conduct of the husband, mere non-service
of notice upon the Chairman as enjoined by Section 7 of the Ordinance does not
render the divorce ineffective—Muslim Family Laws Ordinance, 1961 (VIII of
1961), Section -7.
Md. Sirajul
Islam Vs. Mosammat Helana Begum and others, 16 BLD (HCD) 477.
Divorce
Talaq
pronounced by the wife must be communicated to the husband. When the
communication is over and the husband admits to have received the same, the
requirement of sub-section (1) of section 7 of the Ordinance has been duly
complied with and the talaq-e-tawfiz became effective—Muslim Family Laws
Ordinance, 1961(VIII of 1961), Sec tion—7( 1)
Mrs. Sherin
Akhter and another Vs. Alhaj Md. Ismail, 20 BLD (HCD) 159.
DOCTRINE OF
FRUSTRATION
Doctrine of
Frustration
Doctrine
of frustration as embodied in Section 56 of the Contract Act is applicable to
leases of immoveable property. After the defendant successfully resisted the
plaintiffs attempt to take the suit out of the S.C.C. Court for trial as a
regular suit for declaration of title and recovery of possession, the defendant
cannot be subsequently allowed to turn round to plead that without a suit for
declaration of title and recovery of possession the plaintiff was not entitled
to a decree in the S.C.C. Suit—Contract Act, 1872 (IX of 1872), Section -56.
Md. Mokbul
Hossain Khandker Vs. Mst. Jaheda Khatun, J5BLD(AD) 185
DOCTRINE OF
PLEASURE
Doctrine of
Pleasure
In
the case of the civilian employees the pleasure theory is curtailed by
constitutional provisions but in the case of military personnel there is
absolutely no exception to the theory of pleasure of the President in the
Constitution.
Lieutenant
General Abu Saleh Mohammad Nasim (Retired), B.B; Psc. Vs. Bangladesh, 18 BLD (AD)
251.
Ref:
29DLR34; 46 DLR(AD)143; 47 DLR(AD)1; 34DLR(AD) 173—Cited.
Doctrine of
Pleasure
All
military personnel, especially the post of Chief of Army Staffs is a position
of trust and confidence and the incumbent holds his post during the pleasure of
the President. In the cases of the civilian employees the pleasure theory is
curtailed by constitutional provisions but in the case of military personnel
there is absolutely no exception to the theory of pleasure of the President in
the Constitution—Constitution of Bangladesh. 1972. Article—134.
Major
General Moinul Hossain Chowdhury Vs. The Govt. of Bangladesh, 19 BLD (AD 258)
DOCUMENT
Document—Admissibility
of documents.
Documents
having been filed and marked Exhibits without objection, the question of
admissibility cannot be raised at a subsequent point of time.
Joynal
Abedin and others Vs. Hafizur Rahman and others 13 BLD (AD) 150.
Void and
Voidable document
Where
a document is void ab initio the
transaction is a nullity and in such a case the plaintiff is not required to
have it cancelled or set aside. But where the instrument is only voidable, it
is incumbent upon him to have it cancelled or set aside.
Since
in the instant case, the plaintiffs are parties to the disputed sale deed they
must pray for cancellation of the document on payment of advalorem Court fee as
required by section 9 of the Specific Relief Act— Specific Relief Act, 1877 (I
of 1877), Sections—39 and 40.
Sree Chitta
Ranjan Chakraborty being dead his heirs Ashish Chakraborty and others Vs. Md.
Abdur Rob alias Mvi. Md. Abdur Rob, I7BLD (AD) 126.
Document—Attestation
of a document
Mere
attestation of a document by a person does not mean that he had knowledge about
the contents of the document—Transfer of Property Act, 1882 (IV of 1882).
Section—3.
Ainanatullah
and ors Vs. Au Mohammad Bhuiyan and anr, 17 BLD (AD) 199.
Document
In
the face of the concurrent findings by the Courts below that the plaintiff
bonafide purchased the suit property from the recorded tenant for valuable
consideration and duly .obtained possession therein and also mutated his name
in respect of the suit property, mere failure of the plaintiff for filing a
suit for rectification of the kabala for mentioning a wrong name of the mouza
does not stand in the way of his getting a decree for declaration of his title
in the suit land nor does it extinguish his title in the suit property, which
was actually sold to him—Specific Relief Act, 1877 (I of 1877), Section—31.
Binode
Bihari Ghose Vs. Assistant Custodian, Vested and Non-Resident Property and
others, 18 BLD (HCD)194.
Document—Rectification
of deed
Where
the whole document is not denied or challenged the cancellation of document is
not necessary, mere rectification is sufficient—Specific Relief Act, 1877 (I of
1877), Sections—31, 39 and 42.
Joynal
Abedin Vs. Maksuda Khatun and others, 18 BLD (HCD) 637.
DOMESTIC
TRIBUNAL
Domestic
Tribunal
Apart
from the provisions of section 18 of the Act, a Domestic Tribunal is not bound
by any procedural law or the law of evidence— Employment of Labour (Standing
Order) Act. 1965, Section—18.
Bangladesh
Paper Mills Ltd. Vs. Chairman, Third Labour Court and another, 14BLD’AD)97
Domestic
Tribunal
A
Domestic Tribunal holding an enquiry must comply with the principle of natural
jus. (ice and act fairly.
Bangladesh
Paper Mills Ltd. Vs. Chairman, Third Labour Court and another, 14 BLD (AD) 97.
Domestic
Tribunal
A
domestic tribunal is not a court required to follow the procedures of a trial
or enquiry as enjoined by the Code of Civil Procedure.
An
Enquiry Officer is thus not bound to follow the procedures of a trial by a
Court. In appropriate cases, the domestic tribunal may arrive at his decision
simply by questioning the delinquent officer and considering his explanation.
Director
(Establishment and Administration) T&T Board Vs. Hasan Ahmed Bhuiyan and another,
15 BLD (AD) 172.
Ref:
Bashir Ahmed Vs. Bangladesh Jute Mills Corporation and others. 44 DLR(AD)
267-Cited.
Domestic
Tribunal
The
civil Court is not competent to Sit over the decision of the Executive
Committee of the respondent Club unless it is proved that it is vitiated by a
breach of the principle of natural justice and the decision is actuated by bad
faith and bias.
Md. Delwar
Hossain Khan Vs. Dhaka Club Limited and anr, 16BLD (HCD) 609.
DOWER
Dower
Unless
the wife voluntarily remits any part of the dower the Court has no power to
reduce the amount of dower.
Jesmin
Sultana Vs. Mohammad Elias, 17 BLD (HCD)4
Dower
Payment
of dower being obligatory as per Nikahnama the wife is entitled to the same on
talaq—Muslim Family Law Ordinance, 1961 (VIII of 1961), Section—6.
Md. Serajul Islam Vs. Most. Helena Be- gum and
others, 19 BLD(AD) 150