BLD’s Ten
Years Civil Digest (1993—2002) Index
Earnest
Money
‘Earnest
Money’ which in common parlance is called ‘Baina’ is that amount of money which
is given at the time when the contract is concluded. It is something which is
given to bind the contract as an earnest or token of good faith and as a
guarantee that the giver will fulfill his part of the contract.
The
Privy Council characterised ‘earnest money’ as a part of the purchase price
when the transaction goes forward. Earnest money is usually forfeited when the
transaction falls through by reason of the fault or failure of the vendee.
Earnest money to bind a contract must follow and not precede the contract. When
there is no meeting of minds of the parties consensus an idem, there cannot be
any question of earnest money.
In
the instant case, the earnest of 2% sent by the plaintiffs was an earnest for
their proposal as asked for by the defendant and not an earnest as
consideration in part of any agreement. It was demanded as a token of the
bonafide of the proposal of the plaintiffs which they complied with. Therefore,
it is clear that encashment of the Bank draft by the defendant. whether it was
legal/proper, cannot be construed as an acceptance of an earnest money forming
part of consideration for the agreement. [Per A.T.M. Afzal, C.J;(Majority)
Bangladesh
Muktijoddah Kalyan Trust, represented by the Managing Director Vs Kamal Trading
Agency and others, 18 BLD (AD) 99.
Earnest
Money
The
earnest money deposited is not only a part payment but it also binds the
contract and it is paid when the contract is concluded. [Per Latifur
Rahman,J.(Minority)]
Bangladesh
Muktijoddah Kallyan Trust Vs. Kamal Trading Agency and others, 18 BLD (AD) 99.
Earnest Money
‘Earnest’
or ‘earnest money’ which in the common parlance is called ‘Baina’ is that
amount of money’ which is given at the time when the contract is concluded. It
is something which is given to bind the contract as an earnest or token of good
faith and as a guarantee that the giver will fulfill his part of the contract.
[Per A.T.M. Afzal, C.J. (Majority)
Bangladesh
Muktijoddah Kallyan Trust Vs. Kamal Trading Agency and ors., 18 BLD (AD) 99.
Earnest
money
In
case of public auction either by the Government or by any autonomous body the
earnest money which is submitted along with the tender is never encashed but
the same is returned to the tenderer in case his tender is not accepted. In
case where the tender is accepted the money is also not encashed and the
deposit remains as security money to be adjusted against final bills. This is
the normal practice followed in case of a public tender. In case of a single
private tender the question of encashment does not arise unless the proposal is
accepted. The encashment of the earnest money is itself a vital proof
indicating that the offer was accepted. [Per Latifur Rahman. J (Minority)]
Bangladesh
Muktijoddah Kalyan Trust, represented by the Managing Director Vs Kamal Trading
Agency and others, 18 BLD (AD) 100.
Ref:
AIR 1919 (Allahabad) 7; AIR 1952 (Calcutta)69 1; AIR 1 970(SC) 1986: (Kunwar) AIR
1926(PC)I; 37 DLR(AD)212; 43 DLR(AD)34–Cited.
EASEMENT
Easement
When
servient the subject-matter of the easement is so permanently altered or
changed that the dominant owner can no longer enjoy it, the easement right in
the property in question is lost—Easement Act, 1882 (V of 1882), Section—44
Osi Meah
Sowdager v Tulsidham Akherar Madam Mahan Narasingha and others, 22 BLD (HCD) 492.
EJECTMENT OF
TENANT
Eviction of
tenant
Section
19(2) of the Premises Rent Control Ordinance permits the tenant to deposit rent
in case of any bonafide doubt or dispute as to the person entitled to receive
the rent. There is no wrong in an order of the High Court Division allowing the
tenants application for making deposit of rent.—Premises Rent Control
Ordinance, 1963 (Ordinance No. XX of 1963). Section—19(2).
Al-Hajj
Mirjahan Vs. MIS Golden Biscuit Co, 13 BLD (AD) 166
Ejectment of
tenant
The
question of bonafide doubt or dispute as to who is entitled to receive rent as
spelt out by section 18(5) of the Ordinance presupposes the existence of a
doubt as to the ownership of the premises. Unfounded plea of bonafide dispute
will not entitle the tenant to invoke the provision of sub-section (2) of
section 19 of the Ordinance.
If
after receiving the notice of attornment the defendant does not offer rent to
the plaintiff and the later does not refuse it, the deposit of rent in the
House Rent Controller Case by impleading the transferee landlord will not
protect the tenant from default and eviction— Premises Rent Control Ordinance
(XX of 1963), Sections -18(5) and 19(2).
Abul Hossain
Vs. Md. Islam, 15 BLD (AD)9
Ejectment of
Tenant
Under
Section 2(Uma) of the Ordinance, the person who continues in possession after
the termination of the tenancy and pays rent to the landlord is a
tenant—Premises Rent Control Ordinance, 1963 (XX of 1963) and BARIVARA
NIYONTRON ODDHADESH,1991(ODDHADESH NO 2 1991), Sections-2 (Uma) and 18 (1) (2).
Abdul Aziz
Vs. Md. Abdul Majid, 14 BLD (AD)147
Ejectment of
Tenant
A
tenant is ordinarily to pay rent within the time stipulated in the contract and
in its absence by the 15th of the month next following for which rent becomes
due. If the landlord refuses to accept rent sent through money order within the
aforesaid period, the tenant becomes entitled under Section 19(1)(a) to deposit
rent with the Rent Controller within a fortnight of the receipt of the
undelivered rent. If the landlord fails to notify in writing his willingness to
accept rent from the tenant, Section 19(l)(b) enables the tenant to deposit
rent with the Rent Controller within 15 days from the stipulated date and in
its absence within 15 days from the 15th day of the month next
following—Premises Rent Control Ordinance, 1963 (Ordinance XX of 1963).
Sections-18(5) and 19(1).
Atiqullah
Vs. Mosammat Rahela Bibi, 14 BLD (HCD) 360.
Ejectment of
Tenant
Estoppel of
It
provides that neither a tenant nor any one claiming through him can deny the
title of the landlord after admitting his title at the beginning of the
tenancy—State Acquisition and Tenancy Act, Section —116.
Smriti
Ranjan Das and another Vs. Bijan Behari Roy and another, J4BLD (HCD)573
Ejectment of
Tenant
The
defendants could not be evicted on the ground that the relationship of landlord
and tenant has ceased with the death of the defendants’ predecessor and the
tenancy was not heritable. There being no legal and valid ground for the
eviction of the defendants, the suit must fail—Transfer of Property Act, 1882
(IV of 1882), Section—105
Subash
Chandra Talukder and ors vs. Abdul Sattar Chowdhury being dead his heirs: Ambia
Khatun & ors., 19 BLD (AD) 17.
Ejectment of
tenant
In
a suit for eviction on the ground of default of a tenant in payment of rent it
is essential that default must be specifically asserted and proved. In the
absence of any assertion either in the plaint or in the evidence that rent was
ever demanded from the defendant before filing the suit. the finding of the
learned S.C.C. Judge that the defendant was a defaulter is clearly wrong.
Md. Faziur
Rahman Shah Vs. Md. An- fur Rahman alias Badsha Chairman, 16 BLD(AD)1 79
Ejectment of
Tenant
When
defendant refuses to attorn to the new landlord the latter has the option to
ask for his eviction either as a tenant in the suit premises from before but
not paying rent to him on demand or as an unauthorised occupant. But a suit for
eviction of the defendant as an unauthorised occupant liable for eviction
without any notice is not maintainable in the Court of Small Causes—Small
Clause Courts Act,1887 (IX of 1887), Section-15(l) read with Article (4) of the
Second Schedule.
Md. Faziur
Rahman Shah Vs. Md. Arifur Rahman alias Badsha Chairman, 16 BLD(AD)1 79
Ejectment of
Tenant
Sub-section
(2) of Section 15 read with Article (4) of the Second Schedule of the Act gives
exclusive jurisdiction to the Court of Small Causes to entertain and try a suit
for ejectment of a monthly tenant by his land- lord. The plea of the defendant
does not determine or change the forum of trial nor does it oust the
jurisdiction of the Court of Small Causes. If the allegations in the plaint
make out a prima facie case which comes within the ambit of the Act. the
defence plea becomes totally immaterial.
Once
it is found that the defendant is a tenant under the plaintiff the defendant is
precluded from setting up his own title denying the title of the
plaintiff—Small Clause Courts Act,1887 (IX of 1887), Section-15(2).
Haji
Kasimuddin Mandal being dead his successors Afroza Bewa and others Vs. Md.
Jalaluddin Pramanik, 16 BLD (AD) 228.
Ejectment of
Tenant
Notice
terminating tenancy
When
a tenant denies landlord’s title in the demised premises without any valid
reason it operates as a forfeiture of his tenancy right—Transfer of Property
Act, 1882 (IV of 1882), Section-106.
Alhaj Md.
Solaiman Vs. Mrs. Sufia Akhtar Alam being dead her heiress: Narjesa
Rahamatullah and ors, 16 BLD (AD) 47.
Ejectment of
Tenant
The
petitioner being admittedly a tenant under the plaintiff in respect of the suit
premises. he has no right to challenge the title of his landlord in the name of
a third party who has not come to claim the suit property. In the
circumstances, there is no complicated question of title involved in the suit
calling for return of the plaint—Small Cause Courts Act, 1887(IX of 1887),
Section-23.
Faiz Ahmed
Chowdhury Vs. Arif Ahmed, 16 BLD (HCD) 228.
Ejectment of
Tenant
When
the plea of title is no defence to the tenant?
Once
it is established that a person 3 a tenant he cannot be permitted during the
continuance of the tenancy to resist a suit for eviction by his landlord as a
subsequent purchaser from a co-sharer without surrendering possession of the
suit premises to his landlord.
Md.
Atiqullah Vs. Mrs. Sanawara Begum and others, 16 BLD (AD) 260.
Ejectment of
Tenant
The
question of 6 months notice under section 3A is not applicable here at all as
the said section speak of use of the building which does not conform to the
scheme of land utilization indicated in the master plan and the impugned notice
was not issued on that ground. Furthermore, admittedly there is no lease
agreement between the parties since 1.9.1999 and no relationship of landlord
and tenant exists and as. such the petitioner are at present illegal occupant
and are trespasser in the house. Hence, they have no locus standi to invoke
writ jurisdiction under Article 102 of the Constitution—Constitution of
Bangladesh, 1972, Article—102, Building Construction Act, 1952 (II of
1953),Section—3A.
Meridian
International (Pvt) Ltd. Vs. RAJUK, 20 BLD (HCD) 564
Ejectment of
Tenant
Once
the tenant recognized the plaintiff as his landlord or attorned him on payment
of rent, he cannot subsequently deny the title of the landlord in respect of
the premises in question—Evidence Act, 1872 (I of 1872), Section—116
Rabiul Alam
and another Vs. Sree Bidhan Kumar Deb, Advocate, 18 BLD (HCD) 46.
Ejectment of
Tenant
The
right of bona fide requirement is a!. ways with landlord but he is under legal
obligation to prove that he needs the premises for such requirement. Expansion
of existing business of a landlord run in a shop room adjacent to the shop room
let out to a tenant involves element of must have and constitutes bonafide
requirement.
Zaher Ahmed
Vs. Manik Sardar, 20 BLD (AD) 292
Ejectment of
Tenant
Denial of
Landlords Title
In
the case of forfeiture of a tenancy for denial by the lessee of title to the
immovable property in the lessor, a written notice to the lessee of intention
to determine the lease is not compulsory as the notice is not part of the cause
of action for eviction. The cause of action is the denial of the landlord’s
title resulting in determination of the tenancy by forfeiture—Transfer of Property
Act, 1882 (IV of 1881), Section—111(g).
Muhammad
Ishaque v. Ekramul Haque Chowdhury and others, 22 BLD (AD) 8
Ejectment of
Tenant
Attornment
Attornment
is an acknowledgment by a tenant signifying that he holds the tenement of a new
person as his landlord. Law does not require the service of any written notice
upon the tenant for effecting attornment. It may be sufficient if the tenant is
informed of the change of ownership even verbally
Alhaj Md.
Solaiman Vs. Sufia Akhtar Alam being dead her heirs Narjesa Rahamatullah and
others, 16 BLD (HCD) 304.
ELECTION
Union
Parishad Election
After
Paurashava came into being there was no existence of Pourashava and no election
of Chairman and members of the Union Parishad could be held although process of
election was starts before election of Paurashava.
Ataur Rahman
Khan and others Vs. The Election Commission and others, 13 BLD (HCD) 494.
Authority to
‘challenge Election
Not
only a voter but also any resident of the area is entitled to invoke the writ
jurisdiction and as such the Court is competent to see whether the holding of
election is in accordance with law.
Nurul Islam
v. Election Commission of Bangladesh and others, 22 BLD (HCD) 581.
ELECTION
COMMISSION
Election
Commission
The
subject matter of Article 70 is within the exclusive domain of the Election Com
mission
and the Speaker has neither any constitutional authority nor any statutory
authority to thwart a decision by the Election Commission by including the
subject matter in a parliamentary proceeding and by pre-empting any decision
under the cover of a ruling which will be a usurpation of the constitutional
power of the Election Commission— Constitution of Bangladesh, 1972, Article— 70
Secretary,
Parliament Secretariat Vs. Mr. Khandker Delwar Hossain and others, 19 BLD (AD)
276
Election
Commission
It
is the responsibility of the Election Commission to see that the election is
conducted justly, honestly and fairly and not to encourage demonstration of
muscle power in the election. It is now well-settled that the post-election
allegations are to be decided by the Election Tribunal and not by the Election
Commission. If there are contemporaneous report or allegations about
disturbance, rigging of ballot papers or election not being held justly,
honestly and fairly then after being satisfied about the correctness of the
report or allegations Election Commission would be justified to cancel the
result f the election and direct repoll. But it would not be justified to
cancel the result of election held peacefully on the basis of post-election
allegations—Local Government (Union Parishads) Ordinance, 1983 (LI of 1983)
Section—24, Union Pan shads (Election) Rules, 1983, Rule—70.
Noor Hossain
Vs Md. Nazrul Islam and others, 20 BLD (AD) 174.
Election
Commission
The
Election Commission is a body which shall consist of a Chief Election
Commissioner and other Election Commissioners as may be appointed by the
President and the Commission shall be subject to the provisions of any law made
in that behalf by the President. Sub-article (2) of Article 118 speaks that
when the Election Commission consists of more than one person, the Chief
Election Commissioner shall act as the Chairman thereof—Constitution of
Bangladesh, 1972, Article-i 18(i)(2)
Jatiya Party
Vs Election Commission for Bangladesh, 21 BLD (AD) 11
ELECTION
DISPUTE
Election
Disputes —Disposal
The
election disputes are to be settled by the Tribunal within the quickest
possible time, otherwise the exercise would be meaningless. The High Court
Division is usually reluctant to interfere with any interlocutory order of the
Tribunal upon the view that all tenable objections may be raised at the hearing
of the appeal—Local Government (Union Parishads) Ordinance, 1983 (LI of 1983).
Md. Moqbul
Hossain Vs. Shamsul Alam and others, 14 BLD (AD) 232.
Election
Dispute
Result of
participation in election by a Disqualified Candidate
If
a person stands disqualified under Section’ 7(2)(g) of the Ordinance, his
participation in election renders the entire election result void as it might
give scope to the general voters to cast their votes differently in favour of
other candidates. Since the result of the election is deemed to have been
materially affected by the participation of a disqualified candidate, the
entire election is to be set aside and in such a case the Election Tribunal
should direct for re-election—Local Government (Union Parishads) Ordinance 1983
(LI of 1983), Section -7(2)(g)
Md.
Sharfuddin Vs. Md. Mofizuddin Sarker and others, 16 BLD (HCD) 177.
Election
Dispute—Counting of Ballot
Sub-rule
(4) of Rule 39 of the Rules requires in mandatory manner that the Presiding
Officer is to count separately the valid votes cast in respect of the Chairman
candidate (s). The Presiding Officer has no other option but to count the votes
at the polling centre unless question of safety and security of the personnel
in charge of holding election at the centre or that safety as well as security
of ballot box or boxes or that of the scrutinized ballot papers is involved.
The word ‘shall’ in the sub- rule has made obligatory counting of votes by the
Presiding Officer after scrutiny of the ballot papers in the ballot box or
boxes—Union Parishads (Election) Rules, 1983, Rule— 39(4)
Md. Mozibur
Rahman Moznu Vs Abdul Halim and others., 21 BLD (AD) 109
Election
dispute—Pendency of an application for remission does not absolve default.
The
petitioner was to repay the loan money to the Krishi Bank by 30. 12.1987 with
accrued interest thereon but he failed to do so and as such he became a
defaulter since 30. 12.1987. His failure to pay the entire principal amount of
loan by 7.12.1991, the day of scrutiny of his nomination paper, and to obtain a
certificate from the Bank allowing remission of interest on liquidation of all
outstanding dues and to obtain a re-scheduling of re-payment makes him a
defaulter. Mere pendency of his application for remission of interest with the
Bank is of no avail to him.
Abu Taher
Vs. Abdur Razzak and others, 15 BLD (AD) 229.
Election
dispute—Setting aside election on grounds of illegalities or irregularities
An
election, inspite of some illegalities or irregularities, cannot be set aside
unless it is proved that the result of the election has been materially
affected thereby.
Mahmudul
Islam Chowdhury Vs. Md. Sultanur Kabir Chowdhury and others, 15 BLD (AD) 231.
ELECTION
MATTER
Election
matter
The
Presiding Officer may stop the poll and report it to the Returning Officer when
the poll is interrupted or obstructed for reasons beyond his control. But if he
can control the interruption or obstruction of the poll with the help of the
law enforcing agencies or by persuading the candidates and their supporters,
temporary interruption or obstruction cannot invalidate the entire poll– Union
Parishad (Election) Rules, 1983, Rule-29.
Sajjad
Hossain Vs. Abdus Sattar and others, 14 BLD (HCD) 595.
Election
matter
When the election process is still on, the
High Court Division ought not have interfered with the matter on a disputed and
controversial fact and resolved them on mere affidavits—Local Government (Union
Parishads) Ordinance, 1983 (LI of 1983), Section—26.
Al-Haj Jamshed
Ali Vs A KM Abdullah and others, 20 BLD (AD) 189.
Election
matter
These
Rules provide for proper sealing of the packets containing the ballot papers
and the gunny bags for ensuring that nothing is recoverable therefrom without
breaking the seal. This was intended to secure not only the secrecy of the
ballot but also to eliminate post election tampering of election materials—Union
Parishads (Election) Rules, 1993, Rules—40(1)(4) and 42.
Md. Mostakim
Au Vs Abdul Matlib and others, 15 BLD (HCD) 651.
Election
matter
Non-consideration
of material evidence striking at the root of the decision of the Election
Tribunal provides a ground for interference by the High Court Division
exercising revisional powers.
Md. Mostakim
Ali Vs. Abdul Matlib and others, 15 BLD (HCD) 651.
Election
matter—Transfer of election petition
Article
53 of the Order provides that the Commission shall appoint as many Election
Tribunals as may be necessary for the trial of the election petition and a
Tribunal shall consist of person who is or has been a District and Sessions
Judge or an Additional District and Sessions Judge.
When
there is a bonafide apprehension in the mind of the petitioner that he may not
get any fair and impartial justice in the hand of Divisional Election Tribunal,
Dhaka., ends of justice would be served if the Election Tribunal Case be
transferred from the Divisional Election Tribunal, Dhaka to any other Tribunal
of competent jurisdiction at Dhaka— Payment of Wages Act, 1936 (IV of 1936),
Section—53
Advocate
Mohammad Abdul Hamid Vs. The Chief Election Commissioner, Bangladesh Election
Commission and others, 18 BLD(HCD) 595
Election
matter
Fresh
Poll—Election matter
The
Election Tribunal declared the election result of Garghata Government Primary
School Polling Station as void and directed fresh poll in that centre. The
Election Tribunal in consideration of the fact that opposite Party No. 15
Shahidul Islam, acted as Assistant Presiding Officer unauthorisedly in Booth
No. 2 and subsequently the entire ballot papers of all the three Booth of that
centre were mixed up. The said Shahidul Islam acted as Assistant Presiding
Officer unauthorisedly by way of false personation and also canvassed for
Moulana Delwar Hossain Saidy as a result of election has been materially affected
and the tribunal has righty declared the election result of Garghata Government
Primary School polling station as void and directed fresh poll and as such the
High Court Division did not find any ground to interfere with the said order.
Moulana
Delwar Hossain Saidy Vs. S S Halder, 19 BLD (HCD) 85.
Election
matter
Allocation
of protected election symbols in by-election
Election
dispute at the intermediate stage of the election process does not fall within
the jurisdiction of the High Court Division under Article 102 of the
Constitution. Party Joint Secretary General has the locus standi to contest the
dispute over allocation of election symbol. Withdrawal of candidature does not
give a walkover to the candidate of the rival party with regard to the allocation
of symbol of other party—Representation of People Order, 1972 (P0 155 of 1972),
Article—16(4).
Jatiya Party
Vs Motassim Billah & ors., 20 BLD (AD) 69.
Election
matter
Article
20(1)(a) of the Order provides that if there are more contesting candidates
than one in respect of any constituency, the Returning Officer shall allocate,
subject to any direction of the Commission one of the prescribed symbols to
each contesting candidate and in so doing shall, so far as possible, have
regard for any preference indicated by the candidate—Representation of People
Order, 1972 (P0 155 of 1972), Article—20(1)(a).
Jatiya Party
Vs Motassim Billah & ors,, 20 BLD(AD) 69.
Election
matter
The
tribunal was justified in not excluding the ballot papers from counting which
contained a part of the official seal, because the law has not demanded in a
mandatory language the presence of a full seal on the ballot paper before its
exclusion from count— Representation of People Order, 1972 (P0 155 of 1972),
Article—31(2)(d)(e).
Moulana
Delwar Hossain Saydee Vs. Sudhangshu Shekhor Halder & ors., 20 BLD (AD) 11
Election
matter
The
ballot papers that are required to be excluded from the count are fully
described in Article 36(4)(i)-(iv) of the Order. These sub- clauses do not
require that a ballot paper is to be excluded from the count if it does not
contain the Code number or the signature or initial of the Assistant Presiding
Officer— Representation of People Order, 1972 (P0 155 of 1972),
Article—36(4)(i)—(iv).
Moulana
Delwar Hossain Saydee Vs. Sudhangshu Shekhor Halder & ors., 20 BLD (AD) 11
Election
matter
Any
and every kind of failure of any person to comply with the provisions of the
order and the rules will not result in the declaration of the election as a
whole to be void— Representation of People Order, 1972 (P0 155 of 1972),
Article—65A.
Moulana
Delwar Hossain Saydee Vs. Sudhangshu Shekhor Halder and ors., 20 BLD (AD) 11.
Election
matter
When
the counterfoils of ballot papers contain official mark it serves the purpose
of requirement of law and it does not require to be signed either by the
Presiding Officer or by the Assistant Presiding Officer and the Election
Tribunal most illegally cancelled the ballot papers of the returned candidate
having “boat symbol” of the Shambupura election centre and Domarchar election
centre and therefore, the election result of Md. Emdadul Haque Bhuiyan as a
Parliament Member has not been materially affected in any manner and his
election as member of Parliament is sustained—Representation of People Order,
1972 (P0 No. 155 of 1972), Articles— 31(2)(e) and 36(4)(c)(1)
Mr. Emdadul
Haque Bhuiyan Vs. Ataur Rahman Khan & ors., 20 BLD (HCD) 74.
Election
matter
The
requirements of law as enshrined in Article 5 1(1) of the P0 No. 155 of 1972
have not been complied with in presenting the election petition before the
Election Tribunal and the election petition was liable to be dismissed under
Article 58 of the Order and the Election Tribunal missed the true import of the
election law in this regard and committed a patent illegality in not dismissing
the election petition. —Representation of People Order, 1972 (P0 No. 155 of
1972), Articles— 5 1(1) and 48.
Mr. Emdadul
Haque Bhuiyan Vs. Ataur Rahman Khan & ors., 20 BLD(HCD) 74
Election
matter—Disqualification for election
Loan
taken by the Chairman of a registered Co-operative Society in the name of the
samity does not render him disqualified for election. It does not cover a case
of defalcation but it covers the case of pecuniary interest in the affairs of the
Pourashava— PourashavaOrdinance,1977, S. 10(2) (1).
Nurul Absar
Vs. A.K.M. Mozammel Haque and another, 14 BLD(HCD)64
Election
matter—Application in election disputes
Right
or liability created by the election laws can be enforced only through the Election
Tribunal which has been created thereunder. Writ jurisdiction in election
matters can be invoked only under exceptional circumstances such as the ground
of coram non judice or malice in law—Constitution of Bangladesh, 1972,
Articles— 102.
Mostafa Kamal
Vs. The Chief Election Commissioner and ors, 18 BLD (HCD) 152.
Election
matter—Disqualification for election
As
respondent No. 1 has been convicted for more than two years and the nature of
offence amounts to moral turpitude, it attracts the provision of sub-clause (d)
of clause (2) Article 66 as well as sub-clause (d) of clause (1) of Article 67
of the Constitution Respondent No. 1, H M Ershad has rightly been disqualified
to be a Member of the Parliament under the provision of Article 66 of the Constitution
and his seat as a member of the Parliament has been vacated under the provision
of Article 67 of the Constitution for committing moral turpitude—Constitution
of Bangladesh, 1972, Articles—66 and 67
Md Zahedul
Islam Khan Vs Husain Mohammad Ershad and others, 21 BLD (HCD) 376.
Election
matter
When
all the necessary parties have been impleaded in the election petition, the
joining of the Returning Officer and the Assistant Returning Officers cannot be
a ground for dismissal of the election petition— Representation of the People
Order, 1972 (P.0.155 of 1972), Article—50 and 58(a).
Advocate
Mohammad Abdul Hamid Vs. Md. Fazlur Rahman, 18 BLD (AD) 96.
Election
matter
The
ballot papers which do not contain the stamp with official mark in its back and
the number of the elector mark in writing on the counterfoil by the Presiding
Officer having stamp in the counterfoil with the official mark and without
signature or thumb impression on the counterfoil of the ballot papers cannot be
treated and counted as valid votes—Representation of the People Order, 1972 (P
0 155 of 1972), Article—31(2) (d) (e)(f).
Moulana
Delwar Hossain Saidy Vs. S S Halder, 19 BLD (HCD) 85.
Election
matter
The
votes which are not valid votes as per requirements of Article 31(2)(d)(e)(f)
are declared as invalid votes and those votes are deducted from the total votes
counted Representation of the People Order, 1972 (P 0 155 of 1972),
Article—31(2)(d)(e))f).
Moulana
Delwar Hossain Saidy Vs. S S Halder, 19 BLD (HCD) 85.
ELECTION
PETITION
Election
Petition
The
decision of a tribunal on an election petition shall be final under clause (2)
of Article 62 but the same sub-clause starts with a ridden i.e.; “same as
provided in clause (3)” which means that finality is subject to any appeal
taken by an aggrieved person to the High Court Division under sub-clause (3),
the decision in the appeal shall be final under sub-clause (3). As soon as
there is an appeal under sub-clause (3) taken the finality of the decision
under sub-clause (2) of the tribunal is automatically displaced—Representation
of the People Order, 1972(PO 155 of 1972), Article—62(2)(3)
Sudhangshu
Shekhor Halder Vs. Moulana Delwar Hossain Saydee and ors, 19 BLD (AD) 133.
Election
petition
Article
57(6) of the Order provides that the Tribunal shall try an election petition as
expeditiously as possible and shall endeavour to conclude the trial within six
months from the date on which the election petition is referred to it for
trial—Payment of Wages Act, 1936 (IV of 1936) , Section—57(6)
Advocate
Mohammad Abdul Hamid Vs. The Chief Election Commissioner, Bangladesh Election
Commission and others, 18 BLD (HCD) 595.
Election
petition
The
election petition must contain an adequate statement of all material facts on
which the allegation of illegality in counting are founded vague or general
allegations that invalid votes were improperly accepted or valid votes were
illegally rejected will not serve the purpose.
Mr. Emdadul
Haque Bhuiyan Vs. Ataur Rahman Khan & ors., 20 BLD (HCD) 74.
Election
Tribunal
An
Election Tribunal is appointed by notification issued by the Election
Commission and the person or officer mentioned in such notification is the only
person or officer who is competent to act as an Election Tribunal. He has no
authority to delegate his power to anybody else–Representation of the People
Order, 1972 (P.O. 155 of 1972), Article —53
Mosharaf
Hossain Shajahan Vs. Elec.. tion Tribunal and District Judge, Bhola and ors.,
17 BLD (HCD) 182.
Election
Tribunal
The
purpose of taking effect of an order of a tribunal on the date on which it is
made under clause (1) of Article 67 seems to be that the law clearly lays down
that such an order shall not be effective from any prior date. The reason of
making this provision is that all declaratory decree/orders are retrospective
in operation and unless specifically given a prospective date of operation, the
final order passed by an Election Tribunal will automatically retrospective,
Another apparent reason being to save the acts in which the returned candidate
participated. There is no compulsion in the said provision to deny the
ancillary or concomitant power of granting stay while entertaining an appeal by
the High Court Division. As for the power of and reasons granting stay, the
Appellate Division has endorsed the view taken by the High Court
Division—Representation of the People Order, 1972(PO 155 of 1972),
Article—67(1).
Sudhangshu
Shekhor Halder vs. Moulana Delwar Hossain Saydee, 19 BLD (AD) 133.
ELECTION
RULES
Election
Rules
Though
Election Rules do not authorise the Election Tribunal to order recounting of
the Ballot Papers, it is now well-settled by the decision of the Appellate
Division that an Election Tribunal can order recounting of Ballot Papers when
it is a material issue before it and it is satisfied from the evidence on
record that recounting is indispensably necessary for deciding the case.
Tribunal
.has jurisdiction to direct the recounting of Ballot Papers and he has passed
the impugned order for recounting on consideration of the evidence on record,
though not in detail, it cannot be said that the Election Tribunal acted
illegally or with material irregularity in the exercise of its jurisdiction.
Redwan Ahmed
Vs Election Tribunal, District Judge, Comilla and others, 14 BLD (HCD) 88.
Ref:
27 DLR (AD) 117 ;27 DLR (HCD) 594; 31 DLR (AD) 296;32 DLR (AD) 186; and 38 DLR
(AD) 275-cited.
Election
Rules
Election
Rules do not authorise the Election Tribunal to order recounting of the ballot
papers, but it is now settled by the decision of the Appellate Division that it
can order recounting when it is indispensably necessary for adjust decision of
the case.
Redwan Ahmed
Vs. The Election Tribunal and District Judge, Comilla and others, 14 BLD (HCD) 88.
ENDS OF
JUSTICE
Ends of
Justice
The
expression ‘ends of justice” is a significant phraseology in legal parlance.
But indiscriminate use of this expression sometimes defeats justice. The Court
must not use the expression capriciously but according to sound judicial
principles for ensuring real justice.
Mst.
Khairunnessa being dead her heirs Feroz Alam and others Vs. Zobaida Nahar alias
Jharna and others, 17 BLD (AD) 51.
Ends of
Justice
The
petitioner is an old man and Professor of a University suffering from ailments
and is not able to go to Gopalganj. Considering the nature of the case it was
withdrawn from the Magistrate Court, Gopalganj to the Court of Chief
Metropolitan Magistrate, Dhaka where the petitioner was directed to surrender
and obtain bail.
Dr. Ahmed
Sharif Vs. The State and another, 17 BLD
(HCD) 235.
ENEMY
PROPERTY
Enemy
Property
It
is upto the authority to decide how possession will be taken over from the
petition who is said to be not a lease but in permissive possession—Enemy
Property (Lands and Buildings) Administration and Disposal Order, 1966.
Sudhir Kumar
Saha Vs. The Secretary Ministry of. Land and Administration, 13 BLD (AD) 134.
Enemy
Property
In
the face of evidence on record showing that the plaintiffs have been possessing
the suit land on taking pattan from the recorded tenant in 1351-52 B.S. and
their names have been recorded in the S.A. Khatian, defendant’s claim of Enemy
Property does not stand— Specific Relief Act, 1877 (I of 1877), Section—42.
The
Additional Deputy Commissioner (Revenue), Manikgonj Vs. Md. Siddiqur Rahman and
others, 14 BLD (AD) 80.
ENQUIRY
Enquiry
Officer’s
findings are not binding on the punishing authority. The authority has the
power to give independent findings based not only on the enquiry report but
also on other departmental reports and papers available to it. If the punishing
authority disagrees with the findings of the Enquiry Officer and proceeds
against the delinquent employee, it must give some reasons for such
disagreement—Government Servant (Discipline and Appeals), Rules, 1976, Rule—7(5).
The Trading
Corporation of Bangladesh Vs. Kazi Abdul Hye, 17 BLD (AD) 156
ERROR OF LAW
Error of Law
The
Appellate Division does not ordinarily sit as a Court of appeal on facts but
restricts itself to the misapplication of law or misinterpretation of any
material evidence or to correct any error of law apparent on the face of the
record.
Louis Costa
Vs. Mrs. Hosneara Man- nan, 18 BLD (AD) 247.
Error of law
Mere
error of law without occasioning failure of justice cannot by itself be a
ground for interference under section 115(1) of the Code of Civil Procedure.
Advocate
Moh. Abdul Hamid Vs. Moh. Faziur Rahman, 18 BLD (HCD) 587.
ESTOPPEL
Estoppel
Estoppel—when
on his own volition the Respondent induced the Appellants to allow him to
retire from service, the Respondent cannot be heard to say that the 4ppellants
had no power to relieve him from service—Evi4ence Act, 1872 (I of 1872),
Section-115.
Bangladesh
Parjatan Corporation, rep. resented by its Chairman and others Vs. Mr. Mofizur
and another, 14 BLD (AD) 6.
Estoppel
To
bring a case within the scope of estoppel, the person claiming the benefit must
prove that he was not aware of the real state of affairs. There can be no
estoppel where the truth is known to both the parties—State Acquisition and Tenancy
Act, Section-115
Sarafat
Hossain Vs Dr. Islam Uddin, 14 BLD (HCD) 253.
Estoppel
After
having participated in the election and being defeated, the defendant can not disturb
the functioning of the elected Manager without getting his election declared
illegal by a competent Court.
Anwar
Hossain Vs. Abdul Gafur and others, 14 BLD (HCD) 260.
Estoppel
To
establish a case of estoppel or waiver it is essential to show that the party
alleged to have waived his right acted in such a manner as to lead the other
party to believe that such rights have been abandoned. The essence of the act
is that one party by his conduct has led the other party to change his
position— Dhaka University Order, 1973 (P,O. 11 of 1973), Section -115.
Md. Jahangir
Kabir Vs. Bangladesh, 16 BLD (AD) 85.
Estoppel
The
action of the local Revenue Officer in accepting the plaintiff and his
predecessor-in- interest as tenants in respect of the suit property is binding
on the Vested Property Department and the latter cannot claim it as a vested
property. The action of the A.D.C. (Revenue), wh6 is the local administrative
heal of the Revenue Department as well as the Vested Property Department,
indulging in oppressive litigations was strongly disapproved—Customs Act, 1969
(IV of 1969), Section—115
Additional
Deputy Commissioner (Revenue), Narayanganj Vs. A.KM. Latiful Karim and others,
17 BLD (HCD) 249.
Estoppel
Doctrine
of estoppel lays down that if a person has acted to his detriment or altered
his position on the basis of any declaration, act or omission of another, that
other person will not be allowed in any future suit or proceedings between
himself and that other person or his representatives to go back upon to the
detriment of the opposite party. Mere indulgence shown under exigency of
circumstances in not enforcing one’s legal rights or keeping the said rights
suspended for the time being cannot constitute waiver or estoppel—Evidence Act,
1872(1 of 1872) , Section—115.
Maran Mondal
being dead his hier is Dayal Chandra Mondal and ors. Vs. Assistant Custodian of
Vested and Non-Resident Properties (L & B) and Additional Deputy Commissioner
(Revenue), Dhaka and ors., 18 BLD (HCD) 21.
Estoppel
In
order to find an estoppel, the representation i.e. a partiy’s declaration, act
or omission must be clear, definite, unambiguous and unequivocal. The real
state of things were known to both the parties namely the transferor and the
transferees of the kabala and there is no proof of erroneous misrepresentation
and as such there is hardly any scope of the operation of sect ion 43 of Act—
Evidence Act, 1872 (I of 1872), Section— 115, Transfer of Property Act, 1882
(IV of 1882), Section—43.
Ali Akbar
Khan Vs. Gurudas Mondal and ors, 19 BLD (HCD) 122.
Estoppel
Right of
Pre-emption—Estoppel
The
pre-emptor’s inability to purchase the land on the ground of financial
inability which was a temporary one will not operate as estoppel from
purchasing the land and exercise his right of pre-emption—State Acquisition and
Tenancy Act, 1950(XXVIII of 1951), Section—96.
Abdul
Khaleque Vs. Mosammat Kohinor Hamid, 20 BLD (HCD) 405.
EVIDENCE
Appreciation
of Evidence
One
may differ with the appreciation of evidence by the lower appellate Court but
one must grant to appellate court the right of deferring from the trial court
as far as reliance upon witness is concerned especially when it is backed by
adequate reason.—Evidence Act, 1872 (Act I of 1872).
Narayan
Chandra Rajak Das Vs. Md. Amjad Ali Miah & others, 13 BLD (AD) 110.
Secondary
Evidence
Secondary
evidence is not admissible in evidence unless there is proof of execution of
the original and its subsequent loss or destruction—Contract Act 1872 (Act IX
of 1872), Section—65.
Abdur Razzak
Vs. Ahila Khatun and others, (HCD) 610.
Appreciation
of evidence
One
may differ with the appreciation of evidence by the lower appellate Court but
one must grant to the appellate Court the right of differing from the trial
Court as far as reliance upon witnesses is concerned, especially when it is
backed by adequate reasons.
Narayan Chandra
Rajak Das Vs. Md. Amjad Ali Miah, 13 BLD (AD) 110.
Evidence
Presumption
of validity of registered document
A
registered document carries with it a presumption of validity and that
presumption is rebuttable presumption and after giving due opportunities to the
parties concerned the same can be rebutted.
Haji SK. Md.
Lutfur Rahman Vs. Chairman, Court of Settlement, Bangladesh Abandoned Building,
13 BLD (AD) 114.
Exclusion of
oral evidence by documentary evidence
No
oral or extraneous evidence to contradict or vary the terms of the contents of
a document is admissible under the law. The written terms of a contract cannot.
therefore, be altered or varied by oral evidence— Employment of Labour
(Standing Orders) Act, 1965 (VIII of 1965), Sections—91 and 92.
Md. Serajul
Islam Vs. Sree Binoy Bhusan Chakraborty and others, 15 BLD (HCD) 241.
Exclusion of
oral evidence
Oral
evidence is inadmissible for the purpose either of construing the terms of a
document or of ascertaining the intention of the parties thereto. No oral
evidence to transform a nadabi-patra deed into a deed of gift is admissibly .
Khorshed Ali
Bhuiyan being dead his heirs (Ka) Shamsun Nahar and others Vs. Gunjor Ali and
others, 17 BLD (HCD) 470.
Evidence—Consideration
of
The
Court has a right to believe or disbelieve a witness or a number of witnesses
on assigning reasons but it has no right to ignore the evidence of the
witnesses examined by the contending parties, irrespective of value that it may
carry. In the instant case the Courts below evidently erred in law in decreeing
the suit for permanent injunction without discussing and considering any
evidence of the 10 witnesses examined by the contending parties proving the
possession of the opposite parties—Evidence Act, 1872 (I of 1872), Section—59.
Satish Kanti
Barua & ors. Vs. Samir Kanti Barua & ors., 19 BLD (HCD) 608.
Secondary
evidence
The
production of the certified copy of a sale-deed does not by itself warrant the
presumption of due execution of the original document. A party relying on the
secondary evidence is required to prove the due execution of the
original—Evidence Act, 1872 (1 of 1872), Section -63.
Soya Rani
Guha alias Soya Rani Gupta Vs. Abdul Awal Mia and others, 14 BLD (AD) 257.
Evidence
When
the appellate Court reverses the judgment of the trial court on non-
consideration of the materials on record and without adverting to the reasons
on which the trial court based its judgment, the High Court Division may
interfere with the finding of facts arrived at by the appellate Court when it
is found that non-consideration of such evidence has materially affected the
impugned decision occasioning failure of justice—Code of Civil Procedure, 1908
(V of 1908), Sections- 115.
Johara
Khatun and others Vs. Md. Habib Khan and another, 15 BLD (AD) 120.
Oral
evidence barred?
For
proving the defence plea that the sale deed under preemption was in fact a deed
of release the pre-emptee is not debarred from adducing oral evidence to prove
the nature of the transaction by adducing oral evidence.
Abul Hashem
Vs. Sheikh Ahmed and another, 17 BLD (HCD) 385.
Evidence—Proof
of title
It
is well-settled that the plaintiff is not always required to prove his titter
to the hilt. In some cases, it is .enough if he is able to prove that his title
is better than that of his adversary.
Mojibur Rahman Vs. Bangladesh and others, 15
BLD (HCD) 619.
Ref:
41 DLR 139; 45DLR 571: A.1.R. 1927 (AJ [1)669-Cited.
Re-assessment
of evidence
Ordinarily
while exercising revisional power the High Court Division should not embark
upon the function of the lower appellate Court to reassess the evidence on
record in reversing a finding of fact. If. however, it is found that the lower
appellate Court has failed to consider any material evidence in reversing a
finding of fact arrived at by the trial Court on assigning proper reasons
therefore, the High Court Division may send the case back on remand to the
appellate Court for rehearing the appeal on proper assessment of the evidence
on record. In an appropriate case, the High Court Division may itself consider
the evidence while maintaining the decree passed by the appellate Court—Code of
Civil Procedure, 1908 (V of 1908), Section—115.
Md. Golam
Sarwar and others Vs. Md. Liakat Ali and others, 18 BLD (AD) 15.
EXECUTION
Execution of
the decree
The
only question to be decided on an application under Order 21 Rule 16 of the
code is, whether the applicant is the person entitled to execute the
decree—Code of Civil Procedure, 1908(V of 1908), Order 21, Rule 16.
Manik Chand
Bibi alias Rezian Nahar and another Vs. Abdul Mutakabbir Chowdhury alias Sufi
Mia Chowdhury 13 BLD (AD) 75.
Execution
Order
XXI Rule 85 C.P.C. provides that the full amount of the purchase money shall be
paid by the purchaser into the Court before it closes on the 15th day from the
date of sale of the property while Rule 86 provides that in default of payment
within the stipulated period, the deposit money may, if the Court thinks fit,
be forfeited to the Government and the property shall be re-sold and the
defaulting purchaser shall forfeit all claims to the property and the earnest
money.
In
the instant case, the auction having taken place on 9.5.1984. the purchaser was
required under the law to deposit the balance of the bid-money by 24.5.1994.
But without making full payment within time the purchaser prayed on 9.6.1994
for allowing him time to deposit the balance of the purchase- money and the
Court allowed his prayer till 30.6.1994. This order extending time for payment
of the purchase-money is clearly beyond the scope of Order XXI Rules 85 and 86
C.P.C.
Sonali Bank
Vs. Md. Siddiqur Rahman Bhuiyan and another, 15 BLD (HCD) 610.
Execution
A
bonafide claimant seeking relief under Order XXI rule 101 of the Code requires
to be put back into possession of the disputed property notwithstanding the
filing of a suit by the plaintiff under rule 103 to establish his right to the
present possession—Code of Civil Procedure, 1908 (V of 1908), Order XXI Rules
101 and 103.
Md. Abdul
Kaiyum Vs. Krishnadhan Banik being dead his heirs Bijan Kumar Banik and others,
17 BLD (AD) 167.
Execution
In
the execution proceeding the application was filed by the decree holder for
partition and for possession. Without filing a partition suit the executing
court cannot pass an order for possession when the decree itself does not
contemplate such possession of the property by metes and bounds. This exercise
of jurisdiction by the executing court is palpably erroneous and without
jurisdiction— Code of Civil Procedure, 1908 (V of 1908), Section—151.
M. Majid Vs
lqbal Bahar Chowdhury and others, 20 BLD (AD) 149.
Subsequent
execution
In
the execution proceeding whether the subsequent execution against the judgment-
debtor is maintainable or not?
From
the materials on record it was found that on the own seeking of the petitioner
40 installments were granted but the petitioner did not pay a single
installment. The execution was started for one installment only in respect of
Tk. 13,000/- and odd whereas the total decree was for Tk. three lac and odd and
as such the entire decretal amount remained unpaid. As a matter of fact, the
execution was for one installment and there is no legal bar to proceeding with
the executing under section 16(3) of the Ordinance for the unpaid amount. The
entire amount having remained unpaid, there is no legal bar to proceeding with
the subsequent execution—Family Court Ordinance, 1985 (XVIII of 1985),
Section—16(3).
Md. Serajul
Islam Vs. Maksuda Akhter, Advocate, 20 BLD (AD) 84.
Execution of
Decree
The
executing court acted beyond jurisdiction in issuing the notices upon the
judgment debtors in as much as the Court is not required to issue such notice
as the decree execution case has been filed within three months from the date
of the decree—Code of Civil Procedure, 1908 (V of 1908). Order XXI Rule-22.
Haji
Jahanara Begum & ors. Vs Managing Director, Rupali Bank, 20 BLD(HCD) 455.
Execution of
decree
When
the petitioner himself consented to the execution of the decree by endorsing no
objection he is debarred from raising the question of service of notice
thereafter—Code of Civil Procedure, 1908 (V of 1908), Order XXI Rule 16.
Md. Selim Vs
Amir Hossain and others, 21 BLD (AD) 133.
Execution
proceeding
Leave
to appeal cannot be granted in a case where it is filed just for delaying the
disposal of the execution proceeding and to continue in unauthorized possession
of the suit premises—Constitution of Bangladesh, l972,Article— 103
Shahanara
Khatun and another Vs Md Abu Taleb Pramanik and others, 21 BLD (AD) 132.
EX-PARTE
DECREE
Ex-parte
decree
Against
an ex-parte decree two remedies are open to a defendant: (1) to prefer a
regular appeal or (2) to file an application under Order IX Rule 13 of the
Code. If so chosen, he can simultaneously pursue both the courses. His legal
representatives, who stepped into his shoes, are entitled under the law to
maintain an application under Order IX Rule 13 of the Code—Code of Civil
Procedure, 1908 (V of 1908), Order IX Rule 13.
Rahima
Khatun Vs. Md. Nurul Hoque and others, 17 BLD (HCD) 329.
EXPERTS OPINION
Experts
Opinion
Taking
opinion of the handwriting expert on comparing the siquantive and thumb
impressions of
the
plaintiffs in Court on their physical appearance is not necessary. The court is
competent to form its opinion on a comparison of the handwritings and
signatures appearing on the materials on record— Easement Act, 1882 (V of
1882). Section— 44, 47, 67 and 73.
Sreemati
Hajari Roy and others v. Arun Kumar Singha and ors, 22 BLD (HCD) 169.
EXPORT
In
the face of positive restrictions on the export of lizard skins contained in
Import and Export (Control) Ordinance, 1950 and the clear directions contained
in Export Policy 1996-1997 banning the export of lizard skins, the customs
authority does have the legal competence to seize and confiscate lizard skins
aimed at exporting the same under a false cover—Customs Act, 1969 (IV of 1969),
Section—156(9)(1), Import and Export (Control) Ordinance, 1950, Export Policy
1996- 1997
Sanaullah
Chawdhury Vs. Government of Bangladesh and anr, 17 BLD (HCD) 549
EXTRADITION
Extradition
The
Government of Bangladesh has sufficient legal authority to extradite Anup
Chetia to India in response to the right of India to demand extradition of Anup
Chetia— Extradition Act, 1974 (LXIII of 1974), Section—4, Special Powers Act,
1974(XIV of 1974), Sections—3(i ) and 2(f)(ii).
Saiful Alam
Dilder Vs.. Govt. of Bangladesh and others, 18 BLD (HCD) 615.