BLD’s Ten
Years Civil Digest (1993—2002) Index
GIFT
Hiba (gift)”
and “Ariyat”
If
it is a gift of the corpus, then any condition which derogates from absolute
dominion over the subject of the gift will be rejected as repugnant but if the
gift is one of a limited interest for usufmets only, which is known in Muslim
Law as ‘Ariyat’, the gift can take effect out of the usufructs, leaving the
ownership of the corpus unaffected except to the extent to which its enjoyment
is postponed during the subsistence of the limited interest. The distinction
between ‘Hiba’ (gift) and ‘Ariyat’ in Muslim Law stems from some basic
distinctions between the concept of property in English Law and Muslim Law. In
the instant case, the alleged deed of gift is found to be not a gift of the
corpus but a gift of the usufructs for life in favour of the wife of the donor
and this is permissible under the Muslim Law as it stands today in the
subcontinent.
Rabjel
Mondal Vs. Didar Mondal and others, 15 BLD (AD) 5.
Ref:
Nawajish Ali Khan Vs. Aliz Raza khan, A.I.R. 1948 (PC) 134; Mst. Khan Bibi Vs.
Mst. Safta Begum, PLD (1969) Lahore 338; Amjad Khan Vs. Ashraf Khan and others;
A.I.R. 1929 (PC) 149; Samir Shaikh Vs. Aijan Bewa, 6 DLR 320: PLD 1956 (Dacca)
143; Sar Anjam Khan Vs. Afjal khan, PLD 1972 (Peshawar) 37—Cited.
Gift
A
gift by a husband in favour of his wife or vice versa or to any relation by
consanguinity within three degrees of the testator or donor is not
pre-emptible.
Sub-section
10(c) of Section 96 has, of course, not been designed to help the donor or
donee to curtail the right of pre-emption of a co-sharer of a holding where his
right of pre-emption has already arisen prior to such gift. In the instant
case. the vendor of the case land transferred the land to opposite party No. I
by a registered kabala and the latter, in turn, gifted the case land to
opposite party No. 85. Under such circumstances, the preemption case against
opposite party No. I is quite maintainable in law and the gift by opposite
party No. 1 in favour of opposite party No. 85 does not stand as bar against
pre-emption—State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), Section —
96(10)(c).
Mohammad
Tayeb Vs. Haji Najir Ahmed and others, 16 BLD (HCD) 172.
Gift
Unregistered
gift
Principle
of Mohammedan Law cannot be over-ridden by another law namely Registration Act.
As per Mohammedan Law the unregistered gift is valid one which is used for oral
gift.
Amena Khatun
Vs. Abdul Malek Sheikh and others, 19 BLD (HCD) 6.
Ingredients
of Gift
Mere
absence of a recital in the deed of gift that the donee accepted the offer of
gift made by the donor does not render a deed of gift invalid where it is found
that following the making of the deed of gift the donee duly went into
possession of the gifted property.
Mst. Jobeda
Khatun Vs. Md. Solemanuddin, 17 BLD (HCD) 181.
Hiba-bil-ewaz
In
case of Hiba-bil-ewaz, delivery of possession of the property in question is
not an essential and important element. Hiba-bil ewaz is valid and complete
even without delivery of possession.
Golam
Mustafa and others Vs. Kazem Ali Khan alias Kazal Khan and others, 18 BLD (HCD)
445.
Ref:
I9DLR( 1967)184; 11DLR353-Cited.
Heba-bil-Ewaj
The
learned Subordinate Judge appear to have committed serious error of law as he
considered the admission of the plaintiff that she put her L.T.I. in the
heba-bil-ewaj but he failed to consider the circumstances in which she had to
put her signature and she disordered the heba-bil-ewaj by saying that fraud
having been practiced upon her and she did not know about the contents of the
deed and she put her signature in good faith on the sale of 15 decimals of land
and her signature was collusively used in the heba-bil-ewaj and further no
exchange was proved or established. The learned Judge committed serious error of
law in not considering the circumstances and as such the findings are not
sustainable in law. Furthermore the plaintiff as the owner and having been in
possession although challenged the heba-bil-ewaj and as such burden is lying
upon the defendant to prove that the heba is genuine.
Jobeda
Khatun Vs Shohorab Hossain and ors., 20 BLD (HCD) 133.
Gift
Not
only a gift under Mohammadan Law but also under the Transfer of Property Act, a
gift must be coupled with acceptance and delivery of possession of the property.
Mere registration of such deed of gift is not at all sufficient.
Bangladesh
and another Vs. Mrs. Shi rely Anny Ansari, 20 BLD (AD) 284.
Gift
A
Mahomedan may dispose of all his properties by way of gift in favour of any
body, even to a stranger. But a gift in order to be valid and complete, there
should, firstly, be a declaration of gift by the donor in favour of the donee,
secondly, an acceptance of the said gift expressly or impliedly by the donee
and thirdly, delivery of possession of the subject-matter of the gift by the
donor to the donee.
Minor Md.
Bashiur Rahman Biswas Vs. Md. Hanif Ali Biswas, 21 BLD (HC’D) 89
Ref:
Shaik Ibrahim Vs. Shaik Suleman. 9ILR Born 146—Cited.
GUARANTORS
LIABILITY
Guarantors
Liability
Guarantor
is not only responsible for repayment of the loan but also his liability to
repay need not even be postponed till the principal debtor fails to repay the
loan.
S M Abul
Hossain Vs Agrani Bank Rupsa Stand Road, Khulna and ors., 21 BLD (HCD) 410.
HARDSHIP
Hardship
When
a party does not come to the court with a clean hand he is not entitled to get
benefit of Section 22(11) on grounds of hardship.
Enforcement
of a contract or refusal to enforce it lies in the discretion of the Court but
this discretion has to be exercised according to sound and established Judicial
principles.
The
condition as to deposit of the balance of the consideration is not an essential
term of the contract the violation of which will render the contract
unenforceable.
Mere
inadequacy of price does not bring a case within the ambit of section 28(a) of
the Specific Relief Act. To attract this sub-section an inadequate’ price must
be attended with evidence of fraud or Of undue advantage—Specific Relief Act,
1877 (I of 1877), Sections-22(11), 24(b) and 28(a).
Quazi Din
Mohammad Vs. Al-haj Arzan Ali and another, 14 BLD (AD) 211.
Hardship
A
decree for specific performance of contract is in the discretion of the court
but this discretion must be exercised not arbitrarily but according to sound
judicial principles. The court may not exercise this discretion in favour of
the plaintiff where specific performance of the contract involves hardships to
the defendant.
Amena Khatun
and others Vs. Hajee Abdul Jabbar being dead his heirs: Mst. Maleka Banu and
others, 14 BLD (AD) 267.
HARTAL
The
right of assembly, meetings and processions are not absolute they are regulated
by law. Reasonable restrictions may be imposed in the interest of public order—
Constitution of Bangladesh, 1972, Article— 37.
Khondaker
Modarresh Elahi Vs The Government the People’s Republic of Bangladesh, 21 BLD (HCD)
352.
Hartal
Article
38 of the Constitution guarantees to every citizens the right to form
associations which is the very basic formation of democracy and the existence
of democracy depends on the right to form associations. The right of free
association is closely allied with the freedom of speech as guaranteed under
Article 39 of the Constitution—Constitution of Bangladesh, 1972, Articles—38
and 39
Khondaker
Modarresh Elahi Vs The Government the People’s Republic of Bangladesh, 21 BLD
(HCD) 352.
Hartal
Every
citizen has the freedom of expression which is guaranteed under Article 39 of
the constitution. But his fundamental right is subject to reasonable
restrictions imposed by law and that use of force or threat to use of force to
dissuade people from carrying on their normal pursuits is a criminal act under
the penal laws of the land; that they are capable and quite alive and alert and
have taken adequate and appropriate steps to deal with the situation—Constitution
of Bangladesh, 1972, Article—39
Khondaker
Modarresh Elahi Vs The Government the People’s Republic of Bangladesh, 21 BLD
(HCD) 352.
Hartal
The
calling for hartal and not accompanied by threat would be only an expression
guaranteed as a fundamental right under the Constitution. But any attempt to
enforce it or ensure that it hartal is observed would make the call illegal and
interfering with the individual right.
Khondaker
Modarresh Elahi Vs The Government the People’s Republic of Bangladesh, 21 BLD
(HCD) 352.
Hartal
Hartal
is a political issue. It is resorted to and supported by the parties in
opposition while it is criticized and opposed, by the party in power. So the
determination whether hartal is good or bad depends on the position held by the
political parties.
Khondaker
Modarresh Elahi Vs The Government the People’s Republic of Bangladesh, 21 BLD
(HCD) 352.
Hartal
Hartal
is a means of protest by the people at large or by a group of a particular
class of our society and it is called for communicating thoughts discussing
public questions, ventilating grievances to government or to the concerned
authority of the government regarding the democratic rights and the legitimate
claims.
Khondaker
Modarresh Elahi Vs The Government the People’s Republic of Bangladesh, 21 BLD
(HCD) 352.
Hartal
Hartal
is a historically recognised democratic right exercised by political parties at
different times. We have achieved independence of Bangladesh through hartal for
days together. Hartal is a right to be enjoyed generally but it may be
restricted to prevent activities which are illegal and considered undesirable
in the public interest
Khondaker
Modarresh Elahi Vs The Government the People’s Republic of Bangladesh, 21 BLD
(HCD) 352.
Hartal
Hartal
is a democratic right to call hartal but it should be observed peacefully
without resorting to any illegal activities by the prohartal activists but at
the same time hartal should also be allowed to be observed peacefully without
any provocation instigation, intervention and aggression of any kind by anti
hartal activists.
Khondaker
Modarresh Elahi Vs The Government the People’s Republic of Bangladesh, 21 BLD
(HCD) 352.
HIGH COURT RULES
High Court
Rules
A
revisional application arising out of a proceeding in any subordinate Court
(Civil, Criminal or Revenue) under section 476 Cr.P.C. can only be heard by a
Division Court (Bench) as authorised under Rule 8 of the Supreme Court (High
Court Division) Rules, 1973. Under Rule 7 it is only the Division Court which can
hear an appeal under Section 476B Cr.P.C. An order under section 476 Cr.P.C.
passed by a civil court will be amenable to revision, where no appeal lies,
only under section 115 C.P.C. to be heard by a Division Bench—Code of Civil
Procedure (Act V of 1908), Section—i 15, Code of Criminal Procedure (Act V of
1898), Section—476, The Supreme Court (High Court Division) Rules, 1973,
Rules—7 and 8.
Md. Shamsul
Hoque Bhuyan Vs. The Institution of Engineers, Bangladesh and others, 14 BLD (AD)
190.
HINDU LAW
Executor of
will
The
executor or administrator as the case may be, of a deceased person, is his
legal representative for all purposes and all the property of a deceased person
vests in him as such—Succession Act, 1925 (Act XXIX of 1925), Section—211(1).
Sree Jogendra
Nath alias Govinda Sarker Vs. Amulya Chandra Sarker and others, 13 BLD (AD) 160.
Hindu Law
An
endowment is the dedication of a property by Gift or Will for some religious or
charitable purposes-Even if an idol is destroyed and a new idol is set up,
Hindu endowment does not change its nature and character.
Md. Abdul
Ali Mollah Vs. Sree Gopal Chandra Biswas and others, 13 BLD (HCD) 659.
Hindu Law
According
to Section 182 of the Hindu Law, the onus, is upon the alienee to prove the
transfer to have been made for legal necessity.
Shib Nath
Das alias Shib Nath Sarker Vs. Shashi Bala Sarker and ors, (HCD) 415.
Hindu Law—Power
of alienation
Alienation
of a debutter property by a Se- bait or Mohuant is not permissible except for
the benefit and preservation of the property itself.
Md. Abdul
Ali Mollah Vs. Sree Gopal Chandra Biswas and others, 13 BLD (HCD) 659.
Hindu Law—Necessity
The
word Necessity, has somewhat special, almost technical meaning. It does not
mean actual compulsion, but the kind of pressure which the law recognize as
serious and sufficient.
Shib Nath
Das alias Shib Nath Sarker Vs. Shashi Bala Sarker and others, 13 BLD (HCD) 415
Hindu Law—Stridhan
When
a Hindu widow acquires any property by way of a will executed by a stranger in
her favour during her widowhood she gains full control over such property as
ayautuka stridhan’. In the instant case, the suit property being ‘autuka
Stridhan’ property of Shabitri, it was duly inherited by Khirode alias Kiron
Majhi, brother of her husband Dinabandhu, after her death.
Sree
Gouranga Bijay Dey and another Vs. Sree Sukumar Sen and others, 14 BLD (HCD) 425.
Hindu law—Adoption
It
enjoins that physical act of giving and taking is absolutely necessary to
constitute a valid adoption. Some overt act to signify the delivery of the
adoptive boy from one family to another is necessary.
The
adoption of a son to her husband by a Hindu widow under the Dayabhaga School of
law relates back to the time of her husband’s death retrospectively.
Smriti
Ranjan Das and another Vs. Bijan Behari Roy and another, 14 BLD (HCD) 573.
Hindu Law—Ceremonies
of Hindu Marriage
(a) Performance
of Nandimukha’ or ‘Vriddhi Sraddha’ on the forenoon of the day of the marriage
invoking the departed souls of the ancestors and to make offerings to them
seeking their blessings.
(b) Ceremonial
reception to the bride and the bridal party at the bride’s place.
(c) Encircling
of the bridegroom seven times by the bride, which is known as ‘saptapadi’ at
the end of which the bride and the bridegroom exchange garlands.
(d) Sampradana
or gift of the bride to the bridegroom.
Utpal Kanti
Das Vs. Monju Rani Das, 17 BLD (AD) 289
Hindu Law—Presumption
of a valid marriage
Since
the exact and articulate observance of the details of the rituals of a Hindu
marriage are beyond the comprehension of the common men, there shall be
presumption of a valid marriage once the celebration of the marriage is
established.
Utpal Kanti
Das Vs. Monju Rani Das, 17 BLD (AD) 289
Hindu Law—Religious
Endowment
Family
deity-Stranger can be appointed next friend or guardian adlitem of the deity
for protecting debutter property-Rules of procedure relating to a minor should
be followed in such cases.
In
the instant case, most of the shebaits have already left the country or have
since dead. A few who are in this country are dormant and have not been taking
any interest in the cause of the deity and play its next friend. In the
circumstances Pradip Kumar Chakraborty who is admittedly a pujari and a
worshipper of next friend of the deity can be no means be precluded from
representing the deity as such.
Pradip Kumar
Chakraborty Vs. Jamila Khatun Bibi and others, 19 BLD (AD) 217.
HOMESTEAD
Homestead
Is exempted
from legal process?
Although
Section 5 of the Land Reforms Ordinance provides that land used as homestead in
the rural area is exempt from all legal processes and the owner of such land
cannot be evicted therefrom by any means by any office, court or authority, the
execution of a decree passed by an Artha Rin Adalat by way of sale of the
mortgaged property, including a homestead, is not barred under the law— Artha
Rin Adalat Act, 1990 (IV of 1990), Sections -5, 6 and 7, Land Reforms
Ordinance, 1984 (X of 1984), Section -6.
Messers
Rabeya Oil Mills Vs. Janata Bank and another, 16 BLD (HCD) 300.
Homestead
Section
6 of the Ordinance bars legal process in respect of any land within rural area
which is being used as a homestead by its owner—Land Reforms Ordinance, 1984 (X
of 1984), Section—6
Abul Kashem
Gazi & ors. Vs Sheikh Nazrul Islam & ors., 21 BLD (HCD) 244.
Homestead
The
proviso to section 6 of the Ordinance provides that this section shall not be a
bar against acquisition of a homestead under any law. A decree in a suit for
declaration of title and recovery of possession of homestead land passed by a
civil court cannot be rendered nugatory by application of section 6 of the
Ordinance—Land Reforms Ordinance. 1984 (X of 1984), Section—6.
Md Abdus
Sobhan Sheikh Vs Md Jobed Ali Sheikh and others, 21 BLD (HCD) 223
IDDAT
Iddat
This
is a direction of Allah as contained in the Holy Quran. Iddat is a period of
waiting. After divorce the marriage tie between the husband and wife is
dissolved and after the dissolution of marriage there remains no obligation
between the parties outside the contract of marriage, but due to the period of
iddat outside the contract of marriage an obligation for payment of maintenance
has been created according to Muslim Law. There being no direction of payment
of maintenance during the period of “Iddat” in the Holy Quran, one is bound to
follow the other sources of Islamic law for a guidance on the question of
granting of maintenance to a divorced woman.
Md. Hefzur
Rahman Vs. Shamsun Nahar Begum and another, 9 BLD (AD) 27.
Iddat
Iddat
(a period of waiting, a prescribed period) is a concept distinctive and unique
is Quranic jurisprudence, like of which is not to be found in any other known
system of jurisprudence. The question of iddat for women arises on other
occasions as well, as on the death of husband, on periods of abstinence from
sexual intercourse and on periods of abandonment of prayers and fasting by
women, but it arises also when there is a pronouncement of talaq. The purpose
of iddat after divorce is four fold, first, to allow the parties to
reconciliate and to give the divorce a go by in the cases of Talaq Ahsan or
Talaq Hasan, secondly, to ascertain whether the woman is carrying any offspring
of her husband in the womb or not, so that the legitimacy of the child remains
beyond dispute, thirdly, to prevent re-marriage of the woman during the period
of iddat in order not to forestall reconciliation and to avoid future
controversies on legitimacy and fourthly. to make arrangements for the
maintenance of the woman during the period of iddat.
Md. Hefzur
Rahman Vs. Shamsun Nahar Begum and another, 19 BLD (AD) 27.
INCOME TAX
Income Tax
The
expenditure, is a capital expenditure when it is incurred for securing capital
assets of enduring benefit to the business. But where it is spent for running
the business, it became revenue expenditure —Income Tax Act, 1922 (Act XI of
1922), Section 10(2)(XVI).
The
Commissioner of Taxes, Chittagong(South) Zone, Chittagong Vs. Chittagong Jute
Manufacturing Company lid., 13 BLD (HCD) 384.
Income Tax
The
Company under liquidation as per provisions of the Income Tax Ordinance, 1984
is a unit of assessment and its income is assessable to tax Income Tax
Ordinance, 1984.
Dhaka
Electricity Development Co. Ltd. (In Liquidation), 13 BLD (HCD) 460.
Income Tax
The
Official Liquidator, is under legal obligation to pay the tax which is assessed
on the income of the company arising out of interest upon deposit.
Dhaka
Electricity Development Co. Ltd. (In Liquidation), 13 BLD (HCD) 460.
Tax from
importers
Clause
(b) of first proviso to Rule 1-7A of the Rules clearly contemplates that
provisions of Rule 17A shall not apply in case of raw materials for the
industries only approved by the Bangladesh Small and Cottage Industries
Corporation. The petitioners are not entitled to import any quantity of raw
materials beyond their maximum utilisation and production capacity of their
respective industrial units as approved by Bangladesh Small and Cottage
Industries Corporation— Income Tax Rule, 1984, Rule—17A(b).
M/S. Musa
Textile and ors. Vs. Govt. of Bangladesh and ors., 19 BLD (AD) 104.
Income Tax
Income
Tax Ordinance, 1984 became operative with effect from 1st July, 1984. For
assessment of any income prior to 1.7.1984, the Income Tax Act, 1922 and the
Rules made thereunder would continue to apply as if the Act has not been
repealed. Assessment period ending on 30.6. 1984 is to be regulated by the
provisions of the Income Tax Act, 1922.
The
Commissioner of Taxes, Rajshahi Zone, Rajshahi Vs. Mr. Md. Abdul Motaleb Miah,
14 BLD (HCD) 607.
Income Tax
Subject
to the provisions of the Ordinance, profits and gains of an industrial
undertaking, tourist industry or physical infrastructure facility set-up in
Bangladesh between the 1st day of July, 1995 and 13th day of June, 2000 (both
days inclusive) shall be exempt from the tax payable under this
Ordinance—Income Tax Ordinance, 1984 (XXXVI of 1984), Section—46A(1).
Homeland
Footwear Ltd. Vs. Chairman, NBR, 21 BLD (HCD) 145.
Income Tax
Section
7 of the Ordinance describes the function of Tea Board such as collection of statistics
from growers, manufacturers or dealers of tea relating to the tea industry and
to assist and encourage scientific, technological and economic research in the
maintenance of demonstration farms for the promotion of tea and other economic
crops while section 24 of the Ordinance provides that no person shall
manufacture tea except in a registered tea factory. A tea garden cannot be
termed as a half agricultural and half industrial enterprise. A tea company
being an industrial company, the concerned tea garden cannot be deprived of the
benefit of reduced tax as provided under the Finance Act—The Tea Ordinance,
1977 (XXXVIII of 1977), Sections —7 and 24.
Commissioner
of Income tax, Chittagong (South), Chittagong Vs. The Deandi Tea Company Ltd.,
15 BLD (HCD) 372.
Income tax—Income
tax return
Since
petitioner did not file any certificate or any material in support of her
statement in the income tax return, contention that the appellate authority as
well as the revisional authority acted illegally and without jurisdiction in
not sending back the case to the Deputy Commissioner of Taxes for fresh
consideration appears to us is not well founded one in that the certificate so
filed in support of the loan shown in the income tax return being from a
different person has rightly been left out of consideration by the income tax
authorities—Income Tax Ordinance, 1984 (XXXVI of 1984), Sections—79 and 85(1).
M Maliha
Banu Vs. The Deputy Commissioner of Taxes & ors., 19 BLD (HCD) 611.
Taxing for
income outside Bangladesh
There
is absolutely nothing to show that the petitioner has a permanent establishment
in Bangladesh and that they were actually doing business in this country and
that they themselves sold their products to any person in Bangladesh. If any
profit is earned by the petitioners principal office in Korea under the
convention they will be taxed in Korea. But they cannot be taxed for their
earnings in Korea in Bangladesh which is protected under the convention which
is a solemn document entered into between the two Government and which has the
backing of section 144 of the Ordinance—Income Tax Ordinance, 1984 (XXXVI of
1984), Sections—144.
MIs. Hyundai
Corp. H.R. Bhaban, Dhaka Vs. The DC of Taxes, 19 BLD (HCD) 220.
Refund of
Tax
Section
27 sub-section 3 provides that an application for refund of any tax paid in
excess may be made within four (4) years of the end of the year in which the
tax in respect of which the refund is claimed was paid.
The
claim for refund was not made within 4 (four) years as provided under section
27 of the Act. The respondents however, having accepted the tax return as a
whole filed by the petitioner and not having assessed her cannot be allowed to
retain the amount allegedly paid in excess, on the plea of illegal enrichment
of the assessee but even then the petitioner cannot get any refund because of
her failure to claim the refund within 4 (four) years from the date of
payment—Sale Tax Act, 1951(111 of 1951), Section—27(3).
Nisha Rani
Devi Vs. National Board of Revenue, People’s Republic of Bangladesh, and
others, 20 BLD (HCD) 19.
Income tax
In
taxing statute the High Court Division by invoking its extraordinary
jurisdiction conferred under Article 102 of the Constitution should not convert
it into an appellate authority where an aggrieved person has got adequate
remedy by way of appeal, review etc. under the Act itself—Constitution of
Bangladesh, 1972, Article—102.
Dandy Dying
Limited Vs. Secretary, Ministry of Finance & ors, 19 BLD (HCD) 67.
Income tax
The
petitioner is an indigenous hillman and his business activities in supplying
the rice under contracts to the Government is an economic activity. But for
supply of rice outside the hill districts under the contract the petitioner is
not entitled to exemption of payment of income tax as the income derived by the
petitioner is from the economic activity carried on outside the hill
districts—Income Tax Ordinance, 1984 (XXXVI of 1984), Paragraph 27 of Part A of
Sixth Schedule.
Sampriti
Chakma Vs. Commissioner of Customs & ors., 20 BLD (AD) 79.
Income tax
It
appears that a return was filed by the assessee which was duly received by the
department and in that view of the matter the Assistant Commissioner of Taxes
ought to have considered the same in assessing the income of the assessee
applicant. Therefore, the impugned order of the Appellate Tribunal cannot be
sustained and it suffers from legal infirmities—Income Tax Ordinance,
1984(XXXVI of 1984), Section—84.
M/s. Union
Corporation Vs The Commissioner of Taxes, 20 BLD (HCD) 480.
Income tax
On
perusal of the impugned order it appears that the Tribunal has allowed the gift
made by Keramat Ali but disallowed the gift made by Md. Abul Kashem on the
ground that the letter addressed to him by the Deputy Commissioner of Taxes
came back unserved but in disallowing this gift the Taxes Appellate Tribunal
lost sight of the fact that the assessee applicant in support of his contention
submitted the certified copy of the statement of account of the donors and it
further appears that the Deputy Commissioner of Taxes himself confirms that
these gifts have been shown by the donors in their respective wealth
statements. But this aspect of the case was overlooked by the Taxes Appellate
Tribunal in disallowing the gift made by Md. Abul Kashem. Thus, the order passed
by the Taxes Appellate Tribunal do not withstand the scrutiny of law and as
such the High Court Division held that the Taxes Appellate Tribunal, Additional
Bench—2, Dhaka was not justified in disallowing the gift made by Md. Abul.
Kashem on the ground of non service of letter addressed to him by the revenue
authority-Income Tax Ordinance, 1984(XXXVI of 1984), Section—160.
Md. Serajul
Hoque Vs. The Commissioner of Taxes intelligence & Investigation Zone,
Dhaka, 20 BLD (HCD) 38.
Income tax
An
assessing officer should first follow the provisions of rule 8(3) in
determining the valuation of property. But the Deputy Commissioner of Taxes
cannot follow the proviso blindly by adopting the gross annual return value
disclosed in an income tax return and multiplying the same by twelve and
fifteen times—Wealth Tax Act 1963 (XV of 1963), Section—7, Wealth Tax Rule
1963, Rule— 8(3).
A. R Yusuf
v. The Commissioner of Taxes, 22 BLD (HCD) 148.
Income Tax
If
it was the consistent finding of the Deputy Commissioner of Taxes that income
tax returns for the assessment years were duly audited and certified by a
chartered accountant as required under section 82 of the Income Tax Ordinance
1984, it cannot be said after a lapse of years that the returns were not
submitted properly, correctly or in accordance with the requirements of law—
Income Tax Ordinance 1984, Section—82, Income Tax Rules 1984, Rule—MA.
American
Express Bank Ltd. v. Chairman, National Board of Revenue and others, 22 BLD (HCD)
59.
Income Tax—Assessment
of tax
There
is no scope for the High Court Division to embark upon merit of the order of
re-assessment of income by the taxing authority arising out of an order
refusing to waive deposit of 25% of the tax assessed for filing a reference
application under section 160 of the Ordinance—Constitution of Bangladesh,
1972, Article—102(2)(a)(ii), Income Tax Ordinance, 1984 (XXXVI of 1984),
Section— 160.
Messers
Hyundai Corp. Vs. The Chairman, National Board of Revenue, 21 BLD (AD)55
Income Tax—Attachment
of Bank Account
When
the petitioner-corporation cannot be assessed any income tax for payment of the
tax their bank account cannot be attached. As the corporation is not assessable
in Bangladesh the order of attachment is found to be illegal and without
jurisdiction.
M/s. Hyundai
Corp. H.R. Bhaban, Dhaka Vs. The DC of Taxes, 19 BLD (HCD) 220.
Income Tax
Once
returns accepted by a competent authority certified that the returns are in
order, unless otherwise found definite, the Deputy Commissioner of Taxes is not
competent to serve notice under section 93 of the Ordinance upon the assessee
asking him to submit fresh returns, holding the returns already assessed and
accepted as under- assessed—Income Tax Ordinance 1984, Section—93.
American
Express Bank Ltd. v. Chairman, National Board of Revenue and others, 22 BLD
(HCD) 59.
Income Tax
Where
a notice does not meet the requirements of section 93, a writ petition under
Article 102 of the Constitution is maintainable instead of approaching the
Commissioner for revising the order under section 121—Income Tax Ordinance
1984, Section—121.
American
Express Bank Ltd. v. Chairman, National Board of Revenue and others, 22 BLD
(HCD) 59.
Income tax
The
transfer of land and building jointly owned by the assessee and his wife to a
company against shares in the company is not a business transaction but an
investment in their business. Even if the value of the property is more than
that shown in the deed of transfer, the transfer did not give rise to any
profit or gains assessable as capital gains of the assessee—Income Tax
Ordinance 1984 (XXXVI of 1984), Section—31.
Md. Harasat
Ullah v. The Commissioner of Taxes, 22 BLD (HCD) 356.
INDEMNITY
ORDINANCE
Indemnity
Ordinance
The
Indemnity Ordinance, 1975 (L of 1975) was an ordinary legislation promulgated
by the then President under Article 93(1) of the Constitution. This was
protected and saved in the category of other laws referred to in paragraphs 3A
and 18 of the 4th Schedule of the Constitution. So, the Indemnity Ordinance,
1975(L of 1975) is not a part of the Constitution, rather it is an ordinary law
protected and saved in the category of other laws’ enumerated in paragraphs 3A
and 18 of the 4th Schedule. A simple majority in the Parliament was sufficient
for repeal of the Indemnity Ordinance—Constitution of Bangladesh, 1972,
Article—93(1) and 142.
Shahriar
Rashid Khan Vs. Bangladesh and others, 17 BLD (HCD) 113.
Indemnity
Ordinance
A
void law though not declared void by any Court so long was legally repealed by
the Parliament and, as such, there was no illegality or unconstitutionality in
passing the Indemnity (Repeal) Act, 1996—Paragraphs 3A and 18 of the 4th
Schedule.
Shahriar
Rashid Khan Vs. Bangladesh and others, 17 BLD (HCD) 113.
Indemnity
Ordinance
As
Ordinance L of 1975 is void it will not create any benefit or vested right in
favour of the persons for whom it was made. The benefit of section 6 of the
General Clauses Act is not available to them and their prayers for declaring
the criminal proceedings pending against them illegal cannot be accepted,
because the Indemnity Ordinance itself is void being repugnant to the
Constitution—General Clauses Act. 1897 (X of 1897), Section—6.
Shahriar
Rashid Khan Vs. Bangladesh and others, 17 BLD (HCD) 113.
Indemnity
Ordinance
There
is no law whatsoever to immune the killers. The Indemnity Ordinance, 1975 dated
26.9.75 only related to the 15th August, 1975 incident and it was in no way
connected with the incident which took place in jail on 3.11.1975—Indemnity
Ordinance, 1975 (L of 1975), Section—2.
Shahriar
Rashid Khan Vs. Bangladesh and others, 17 BLD (HCD) 113.
Indemnity
ordinance
This
Ordinance like many Ordinances which were passed during the period of Martial
Law, is subject to the plenary power of the Parliament for amending, altering
or repealing such laws. For such amendment the procedure of Article 142 of the
Constitution is not necessary. A simple majority is enough to repeal the
Indemnity Ordinance as it is an ordinary law. [Per Latifur Rahman, J]
Shahriar
Rashid Khan Vs. Bangladesh, 18 BLD (AD) 155.
Indemnity
Ordinance
The
Indemnity Ordinance was expressly made by the President in exercise of the
powers conferred by clause (1) of Article 93 of the Constitution. So there was
no extra magic in the Indemnity Ordinance which in normal times was required to
be laid before the Parliament for its survival.
To
give approval to a law is a qualitatively different act from enacting the law
itself. An Ordinance when approved in the Constitution remains an Ordinance and
it does not thereby become a part of the Constitution—Indemnity Ordinance, 1975
(L of 1975).
Shahriar
Rashid Khan Vs. Bangladesh, 18 BLD (AD) 155.
Indemnity
Ordinance—Simple majority is enough
No
where in the Fourth Schedule or any other provision of the Constitution it has
been stipulated that the laws which were continued and saved under paragraphs
3A and 18 of the Fourth Schedule of the Constitution would required two third
majority for necessary amendment, alteration or repeal. A simple majority in
the Parliament is enough for the purpose. [Per A.T.M. Afzal, C.J.]
Shahriar
Rashid Khan Vs Bangladesh and others, 18 BLD (AD) 155.
Indemnity
Ordinance
In
paragraph 3A(7) of the Fourth Schedule to our Constitution the words “competent
authority” have not been defined. But inspite of lack of such definition or
explanation it is not difficult to see who can alter. Nowhere it appears to
have been provided that to amend any other law” the procedure followed for
amendment of the Constitution needs be followed. In the absence of any such provision
these ordinary laws made by the Martial law authorities, these may be altered,
amended or repealed by following the ordinary process of alteration, amendment
or repeal by a simple majority. The Parliament has competently passed the
Indemnity (Repeal) Act, 1996 by a simple majority.—Indemnity Ordinance, 1975 (L
of 1975).
Shahriar
Rashid Khan Vs. Bangladesh, 18 BLD (AD) 155.
INDEPENDENCE
OF JUDICIARY
Independence
of Judiciary
Independence
of Judiciary cannot be secured by making mere solemn proclamation about it. It
has to be ensured both in substance and in practice. The society has a stake in
ensuring independence of the judiciary and no price is too heavy to secure it.
Md. Masdar
Hossain and ors. Vs. Bangladesh and ors, 18 BLD (HCD) 558.
Ref:
(1991) 1 S.C.C. 119; 1989 BLD (Special Issue) 1; 17 BLD(HCD) 278; AIR 1979(SC)
193; AIR 1972(SC) 1028—Cited.
Independence
of judiciary
Article
I 16A provides that all persons in judicial service and the judicial functions
shall be independent in the exercise of their judicial functions—Constitution
of Bangladesh, 1972, Articles—116A.
Md. Masdar
Hossain and ors Vs. Bangladesh and ors., 18 BLD (HCD) 558.
Independence
of judiciary
Since
all Courts are subordinate to the Supreme Court and the Judges function under
the superintendence and control of the High Court Division of the Supreme
Court, they do not come within the jurisdiction of the Administrative
Tribunal—Constitution of Bangladesh, 1972, Articles—117.
Md. Masdar
Hossain and ors vs. Bangladesh and ors, 18 BLD (HCD) 558.
Independence
of Judiciary
Rule
making power has been given by the Constitutional provision and as such the
President may make Rule as deemed fit and necessary for making effective
completion of the separation of the judiciary. Since the rule making power of
the President is wide, unlimited and absolute, the President can make any
provision under the rules which are necessary for carrying out all purposes of
separation of the judiciary from the executive. [Per Md. Mozammel Hoque, J]
Md. Masdar
Hossain and 440 others Vs Bangladesh and others, 18 BLD (HCD) 558.
Independence
of judiciary
The
judicial service is not service in the sense of employment. The Judges are not
employees. As members of judicial service, they exercise the sovereign judicial
power of the State under the Constitution— Constitution of Bangladesh, 1972,
Articles— 152(1).
Md. Masdar
Hossain and ors Vs. Bangladesh and ors, 18 BLD (HCD) 558.
Independence
of Judiciary
Article
35(3) of the Constitution provides that every person accused of a criminal
offence shall have the right to a speedy and public trial by an independent and
impartial court or tribunal established by law. Every person means both a
citizen and a non-citizen. [Per Mustafa Kamal, CJ]
Secretary,
Ministry of Finance Vs. Mr. Md. Masdar Hossain, 20 BLD (AD) 104.
Separation
of Judiciary
Article
22 of the Constitution provides that the State shall ensure the separation of
judiciary from the executive organs of the State. Though more than 29 years
have elapsed since making of the constitution and its coming into force no
effective steps have been taken to separate the judiciary from the executive
organs of the State. [Per Latifur Rahman,J agreeing with Mustafa Kamal, CJ.]
Secretary,
Ministry of Finance Vs. Mr. Md. Masdar Hossain, 20 BLD (AD) 104.
Re-organisation
of service
Article
136 of Part IX speaks of reorganization of service of the Republic by creation,
amalgamation or unification of services and such law may vary or revoke any
condition of service of a person employed in the service of the Republic. This
concept of reorganization of service is available to all other civil posts
including executive service of Republic other than members of the judicial
service and magistrates exercising judicial functions as they have been treated
separately under Articles 115, 116 and 1 1A of the Constitution. Article 136
refers to all general services of civil posts. Judicial service’ has been
separately treated in the relevant constitutional provisions and as such
conditions of service is to be separately framed under Article 133 and it
cannot be tagged as Bangladesh Civil Service (Judicial) under Paragraph 2(x) of
Act XXXII of 1975. [Per Latifur Rahman, J agreeing with Mustafa Kamal, C.J]
Secretary,
Ministry of Finance Vs. Mr. Md. Masdar Hossain, 20 BLD (AD) 104.
Subordinate
Judiciary
Article
114 of the Constitution provides that in addition to the Supreme Court such
courts may be established by law as are subordinate thereto. The constitutional
implication of this Article is that the subordinate judiciary unlike the
Supreme Court of Bangladesh, is not a creature of the Constitution but of law.
Its status is not the same as that of the Supreme Court. The Constitution has
guaranteed the independence of the Judges of the Supreme Court in exercise of
their judicial functions by making some provisions in the Constitution. There
are provisions regarding appointment of Judges, their tenure of office, their
removability only after being tried by their own peers in the Supreme Judicial
Council where they have the fullest opportunity to defend themselves, their
salary being chargeable on the consolidated fund and a provision in Article 147
that the remuneration, privileges and other terms and conditions of the Judges
of the Supreme Court shall not be varied to their disadvantage during their
terms of office. [Per Mustafa Kamal,CJ.]
Secretary,
Ministry of Finance Vs. Mr. Md. Masdar Hossain, 20 BLD (AD) 104.
Judicial
autonomy
Article
140 of the Constitution is inapplicable to members of the judicial service, un[
less the President incorporates the same in Recruitment Rules to be made under
Article 115. While making Recruitment Rules under Article 115 it has to be
borne in mind that Article 116A will be meaningless without judicial autonomy.
Judicial autonomy requires that judicial appointments shall be made on merit by
a separate Judicial Service Commission which may be established either by a
statute or by the President while framing rules under Article 115. [Per Mustafa
Kamal,CJ]
Secretary
Ministry of Finance Vs. Mr. Md. Masdar Hossain, 20 BLD (AD) 104.
Judicial
discipline
Judicial
discipline requires that the High Court Division should follow the decision of
the Appellate Division and that it is necessary for the lower tiers of courts
to accept the decision f the higher tiers as a binding precedent—Constitution
of Bangladesh, 1972, Article—111.
Bangladesh
Agricultural Development Corporation Vs. Abdul Barek Dewan and ors., 19 BLD (AD)
106.
Independence
of Judiciary
The
independence of the judiciary, as affirmed and declared by Articles 94(4) and 1
16A, is one of the basic pillars of the Constitution and cannot be demolished,
whittled down, curtailed or diminished in any manner whatsoever, except under
the existing provisions of the Constitution.
Article
115, Article 133 or Article 136 does not give either the Parliament or the
President the authority to curtail or diminish, the independence of the
subordinate judiciary by recourse to subordinate legislation or rules. What
cannot be done directly, cannot be done indirectly [Per Mustafa Kamal,CJ.]
Secretary,
Ministry of Finance Vs. Mr. Md. Masdar Hossain, 20 BLD (AD) 104.
INHERENT
JURISDICTION
Inherent
Jurisdiction
As
a general rule the powers of Court under Section 151 are not to be invoked where
specific provision in the Code covers a particular case or there is alternative
remedy. But the Civil Court has ample reserve of its inherent powers to do what
meet the ends of justice when fraud is committed on the Court itself. A court
commits an error of law in refusing to entertain an application for setting
aside ex-parte decree—Code of Civil Procedure 1908 (Act V of 1908), Section-151
and Or. IX Rule 13.
Mrs.
Shahrbanoo and another vs. Mrs. Lailun Nahar Ershad & others, 13 BLD (HCD)
1.
Inherent Jurisdiction
Where
dispossession of suit properties was not on the basis of any decree which has
been varied or altered but on the basis of a notice subsequently found to be
illegal, section 144 of the Code is not attracted. In such a situation,
inherent right of the court in section 151 of the Code may be applied to make
such order as would enable it to do effective and complete justice between the
parties.. In the circumstances of the case, the High Court Division committed
no illegality in directing restitution of the Suit property—Code of Civil
Procedure 1908 (V of 1908), Section—144.
Military
Estate Officer v. Sk. Mohammad Ali & ors.,
22 BLD (AD) 113.
Inherent
Jurisdiction
Although
no revisional application was filed before this court against an order that was
not appealable or an order passed on an application under section 151, this
court can interfere and correct the error committed by the learned subordinate
judge—Code of Civil Procedure 1908 (V of 1908), Section— 151.
Makbul
Ahmed, being dead, his heirs, and others v. Mohammedullah and others, 22 BLD (HCD)
120.
Inherent
Jurisdiction
The
inherent power of the Court can be exercised only where the provisions of the
Code of Civil Procedure do not provide any remedy. The learned Subordinate
Judge acted illegally in revoking the Succession Certificate acting under
Section 151 C.P.C.
Dudu Miah
and others Vs. Sikandar Ali and others,
14 BLD (HCD) 228.
INHERENT
POWER
Inherent
power of the Election Commission in our legal system
In
our legal system relating to elections, also the Election Commission’s inherent
power under the provision of Superintendence, control and direction should be
construed to mean the power to supplement the statutory rules with the sole
purpose of ensuring free and fair election. This power is to be exercised with
utmost restraint, for, frequent use of it is likely to render the other
statutory functionaries ineffective.
Altaf
Hossain and others vs. Abul Kashem and others, 13 BLD (AD) 42.
INJUNCTION
Power of
Injunction
The
power of granting injunction by any Court under the Acquisition and Requisition
of the Immovable Property Ordinance, has been expressly taken away—Acquisition
and Requisition of Immovable Property Ordinance.
Sulaiman
Bibi and other Vs. Administrator, Farazi Kandi Complex and others, 13 BLD (HCD)
451.
Injunction—Commercial
Transactions
Courts
are usually very reluctant to grant injunctions in commercial transactions. The
Court hardly interferes in commercial dealings entered into by contracting
parties through performance guarantee or letter of guarantee. Injunction
restraining performance or discharge of contractual obligations is not to be
granted where the threatened injury is compensatable in terms of money.
British
Airways Plc Vs. Bangladesh Air Service Pvt. Ltd., 16 BLD (HCD) 448.
Injunction—Commercial
transactions
It
is fairly well-settled that Courts are reluctant to grant injunction in matters
of commercial transactions entered into by contending parties through
performance of guarantee or letter of guarantee.
Fatullah
Agro-Product Industries Vs. Bangladesh Agricultural Development Corporation, 17
BLD (AD) 49.
Injunction
Neither
the Ordinance nor the rules framed thereunder authorise the arbitrator to make
any order of injunction or stay at any stage of the proceeding—Arbitration Act,
1940 (X of 1940), Section—27.
Mr. Md.
Giasuddin Vs. Bangladesh and others, 17 BLD (HCD) 538.
Injunction
It
puts a complete embargo on any Court to pass any order of injunction or
restraint against the Sangstha with regard to taking over, sale or transfer of
the defaulting concern—Bangladesh Shilpa Rin Sangstha Order, 1972 (P.O. 128 of
1972), Article— 33(5)(a)(iii).
Bangladesh
Shilpa Rin Sangstha Vs. Azir Uddin Chowdhury, 18 BLD (AD) 144.
Injunction
Balance
of convenience and inconvenience
Considering
the balance of convenience and inconvenience it appears that if any order of
injunction at this stage is granted in favour of the petitioners this will
surely hinder the development works of the Government and the development
scheme which is being financed by the donor agencies will go in vain. After the
publication of the E.B. State Acquisition and Tenancy Act, 1950 all the
beels/ponds (Jalmahals) of the ex-zaminders vested in the Government free from
all incumbrances and permanent lease of these bed lands is prohibited. All
these points are required to be decided in the main suit after taking proper
evidence—Code of Civil Procedure, 1908 (V of l90), Section—151.
Jabed Ali
Akand and ors Vs D C Bogra and ors., 21 BLD (HCD) 188
Suit for
injunction
In
a suit for injunction the material issues are prima facie case and possession.
Both the courts below concurrently held that the plaintiffs have been able to
prove their prima facie case and possession in the suit land and as such the
plaintiffs are entitled to get a decree for permanent injunction restraining
the defendants from interfering with the peaceful possessions of the suit land
and from taking possession thereof except in due process of law.
Bangladesh
Vs. Abdur Rahman and ors., 19 BLD (HCD) 274.
Injunction
No
injunctory order should be granted to prevent the payment of the money in
dispute by the Transferring Bank to the First Beneficiary, notwithstanding the
inability of the First Beneficiary to enforce the particular contract himself—Uniform
Customs and Practice for Documentary Credits, 1993 Revision, ICC Publication
NO. 500 (UCP 500), Article—48(a)
S.M. Fazlul
Haque v. Salahuddin Ahmed and another, 22 BLD (HCD) 155.
Order XLI
Rule 24
When
evidence on record is sufficient to effectually adjudicate upon the matters in
issue there can be no justification for remanding the case to the trial Court.
Under such circumstances, the appellate Court is required to decide the appeal
on the basis of the evidence on record.
Sreejukta
Haladhar Karmakar Vs. Bangladesh, 16 BLD (HCD) 519.
Order XLI
Rule 31
Judgment of
reversal
While
reversing the judgment 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.
Masammat
Mohsena Khatun Vs M/s. Habib Knitting Mills, represented by its Proprietor
Sheikh Amjad Hossain, 17 BLD (AD) 47.
Ref:
32 DLR(AD) 170-Cited.
Order XLI
Rule 31
Judgment of
Reversal
The
appellate Court failed to advert to the specific reasonings of the trail Court
nor did it discuss all the material evidence taken into consideration by the
trial Court. The gross omission made by the appellate Court is in respect of
the clear findings by the trial Court about the deed of agreement for
reconveyance and the subsequent deeds of sale as genuine. This goes to the root
of the merit of the case. Since no relief could be granted to the plain-
tiffs
without coming to any finding that any of the said deeds other than the deeds
of sale under pre-emption were sham transaction, the appellate Court was wrong
in reversing the judgment of the trial Court in a casual manner.
INSURANCE
Insurance
Section
47B of the Insurance Act. as amended by Ordinance XXV of 1970 provides for
granting of interest on claims. Consequently the Court at present has no
discretion in the matter of awarding interest earlier available under section
34 of the Code of Civil Procedure. The claimant is thus entitled to the
statutory interest under section 47B of the Insurance Act.
Chalna
Marine Products Ltd. Vs. Reliance Insurance Ltd. & ors, 18 BLD (AD) 69.
Insurance
To
claim for loss or damage to stock due to deterioration, the plaintiff will also
have to prove that there was break down of machinery and the parts, particulers
of which must be kept, had to be replaced.
M/s
Bangladesh General Insurance Co. Ltd. Vs MIs Meghna Sea Foods Ltd., 21 BLD
(HCD) 430
Insurance
It
being a beneficial legislation, a Court of law is to see to the interest of the
aggrieved person more than that of the Insurer. ‘Pending action” as contained
in Condition No. 19 of the Insurance Policy means not only suit or other legal
proceedings before a Court but also means and includes any legal action or
claim pending before the authority— Insurance Act, 1938.
Sadharan
Bima Corporation Vs. Sanjib Kumar Das and another, 14 BLD (HCD)109.
INTERLOCUTORY
ORDER
Interlocutory
Order
Unless
for a compelling reason or for the ends of justice the Appellate Division does
not ordinarily interfere with any
interlocutory order passed by the High Court Division in exercise of its
discretion.
Md. Amirul
Islam Vs. Md. Golam Mostafa and others, 15 BLD (AD) 21.
Interlocutory
order By the Election Tribunal
The
High Court Division will be justified in refusing to interfere with an
interlocutory order passed by an Election Tribunal as all tenable objections
may be raised by the aggrieved party in appeal.
Abdul Hye
Akhand Vs. Monsurur Rahman Khan and others, 16 BLD (HD) 403.
Interlocutory
Order
Interlocutory
order passed by the Artha Rin Adalat is not amenable to revisional
jurisdiction—Artha Rin Adalat Am, 1990 (IV of 1990), Section 6.
Iftekhar
Afzal Vs. Pubali Bank Ltd & ors., 18 BLD (HCD) 642.
Interlocutory
Orders
The
Appellate Division is reluctant to interfere with an interlocutory order passed
by the High Court Division when such an order is passed upon hearing both the
parties,, unless the discretion has been exercised fancifully or unjudiciously
shocking the judicial conscience.
Abul Ahsan
Vs. The Administrator of Pabna Chamber of Commerce and Industry and another, 16
BLD (AD) 115.
Interpretation
of Constitution
An
obligation has been cast upon the Constitutional Court, which is the apex Court
of the country, to interpret the Constitution in a manner in which social,
economic and political justice can be advanced for the welfare of the citizens.
[Per Latifur Rahman, J.] — Constitution of Bangladesh, 1972, Article—102.
Dr.
Mohiuddin Farooque Vs. Bangladesh and others, 17 BLD (AD) 1.
INTERPRETATION
OF HOLY QURAN
Interpretation
of Holy Quran:The more important point, however, is that a verse of the Quran
has to be understood not in isolation, and less with a shallow knowledge of
language and certainly not with the interpretative techniques of manmade laws
but with the help of, first, the Prophet’s (Allah’s peace be upon him)
teachings and practices and subsequently by the enunciations of Islamic jurists
and scholars.
Md. Hefzur
Rahman Vs. Shamsun Nahar Be gum and another, 19 BLD (AD) 27.
Interpretation
of Holy Quran
The
learned Judges of the Privy Council rightly refrained themselves from putting
their own construction on the Holy Quran because they were non-Muslims. They
abstained from opposing the express ruling of commentators of great antiquity
and high authority because they were not qualified to do so. A person who
ventures to interpret the Holy Quran (1) shall be a Muttaqi (2) must have a
wide knowledge of Hadith in connection with the Prophet’ s(s) interpretation of
the Holy Quran and with the statements of his sahabis (companions) and their
successive companions (3) have a knowledge about those parts of the Holy Quran
which have been repealed or substituted (4) have a knowledge about the
significance of each Ayat (5) have a knowledge about Ilmul Kirat (6) have a
profound knowledge of the Arabic language, grammar, diction etc. as the H61y
Quran was revealed in the Arabic language (7) must have a thorough knowledge of
all the major commentaries and works of different Schools of thought, (8) must
be a faqih and other qualifications as well, not necessarily limited to and
special preserves of Ulemas.
Md. Hefzur
Rahman Vs. Shamsun Nahar Begum and another, 19 BLD (AD) 27.
INTERPRETATION
OF LAW
Interpretation
of law
It
can be said that Section 5 of the amending Act is violative of Article 38 of
the Constitution so it cannot be said to be void.— Industrial Relations
Ordinance, 1969 (Ordinance No. XXII of 1969), Sections 5 and 10.
Bangladesh
Biman Sramik Union and others Vs. The Registrar of Trade Unions and others, 13
BLD (HCD) 20.
Interpretation
of law
In
interpreting the law, whether the Court will take the law as it would find the
law and take every word found therein in its order any meaning.
Abdus Samad
Azad and others Vs. Bangladesh and others, 13 BLD (HCD) 134.
Interpretation
of law
There
is a clear distinction between what the law is and what the law should be. A
court of law would take the as it would find the law and would not speculate as
to what the could have been or what should have been that law.
Abdus Samad
Azad and others Vs. Bangladesh and others, 13 BLD (HCD) 134.
Interpretation
of law
When
two parts of the same ordinance mean two things, the Court, is required to give
that interpretation which carries out the intention of the lawmakers and that
interpretation which makes the law unable is to be avoided:—Pourasava
Ordinance, 1977 (Ordinance No. XXVI of 1977), Section-19(6).
Chowmuhani
Pourashava Vs. Delta Jute Mills Ltd., 13 BLD (HCD) 256.
INTERPRETATION
OF STATUTE
Interpretation
of Statute
It
is the principle of interpretation of statute that it shall be interpreted as a
whole for carrying out its purposes. An isolated interpretation cannot be
obtained for the purpose of knocking down an enactment. Reading the declaration
as is found in the Bill read with Standing Order it appears that the order
passed by the customs authority does not suffer from want of legal sanction.
Arif Rahman
Vs. The Commissioner of Customs and others, 18 BLD (HCD) 677.
Ref: 2 BLC (AD)
142—differed.
Interpretation
of Statute
When
the Parliament or the framers of the law employ certain expression which admits
of no doubt the courts are not entitled to put a different word to give a
meaning other than the one which was meant by the expression employed by the
framers of the law.
Q C Shipping
Limited and another Vs. Chittagong Port Authority and others., 19 BLD (HCD) 501.
Interpretation
of Statute
Rules of
Interpretation
The
basic presumption is that the words should receive their ordinary and natural
meaning and this is displaced only when there is a real ambiguity either
appearing on the face of the policy or, revealed by extrinsic evidence of
surrounding circumstances.
Bangladesh
General Insurance Co. Ltd. Vs. Chalna Marine Products Co. Ltd., 19 BLD (HCD)
439
Interpretation
of Statute
When
a statute uses the word “shall”, prima facie, it is mandatory, but the Court
may ascertain the real intention of the legislature by carefully attending to
the whole scope of the Statute.
Md Forkan
Ali Vs Bangladesh, represented by the Secretary, Ministry of Home Affairs and
others, 20 BLD (HCD) 415.
Ref:
16 BLD(AD)25; AIR 1980(SC)303; 1974 (4SSC)237; AIR 199 1(Ker)240; AIR 1973 (SC)
883; Montreal Street Railway Company Vs. Normandin, 1917 AC 170; AIR 1955 (SC)
233 (245); “On the construction of statutes”—Crawford; State of U.P Vs.
Manbodhan Lal, 1958 SCR 533(545); “The Interpretation of Statutes”—Maxwell
(10th Edition), at P.38;AIR19I7 PC142;—Cited.
Interpretation
of Statute
When
a Statute uses the word “shall”, prima facie, it is mandatory, but the Court
may ascertain the real intention of the legislature by carefully attending to
the whole scope of the Statute.
Md. Forkan
Ali Vs Bangladesh & ors., 20 BLD (HCD) 415.
INTERROGATORY
Interrogatory
When
no order is passed by the trial Court for supplying interrogatories, the
question of allowing the application under Order 11, Rule 21 of the Code cannot
be maintained—Code of Civil Procedure 1908 (Act V of 1908), Order 11, Rule 21.
Md. Ansar Au
Vs. Md. Yeasin Mea and others, 13 BLD (HCD) 525.
Interrogatory
Rule
11 has given a power to the person serving interrogatories to apply to the
Court for an order requiring the party upon whom interrogatory has been served
to answer interrogatories—Code of Civil Procedure, 1908 (V of 1908), Order XI
Rule 11.
Sree
Bisheswar Bhattacharjee Vs. Santimoy Bhattacharjee and others, 19 BLD (HCD) 37.
Interrogatory
The
provision of Rule 21 applies when the party interrogated fails to comply with
an order passed by the Court under Rule 11, but in the instant case the party
interrogated has not failed to comply with any order of the Court—Code of Civil
Procedure, 1908 (V of 1908), Order XI Rules 21 and 11.
Sree lushes
war Bhattacharjee vs. Santimoy Bhattacharjee and others, 19 BLD (HCD) 37.