BLD’s Ten
Years Civil Digest (1993—2002) Index
JUDGMENT
Judgment in
Ex-parte case
The
court is not require to give an elaborate Judgment How for a Judgment passed in
an exparte proceeding is to comply with order 20 Rule 4(1) of the code will
depend on facts of each case. a Judgment in ex-parte case shall, however state
specifically which of relief’s are granted to the defendants—Code of Civil
Procedure, 1908( V of 1908), Order 9, Rule13.
Alfu Miah
and others Vs. Government of Bangladesh and others, 13 BLD (AD) 181.
Judgment
In
case of reversal of judgment of the trial court, consideration of the evidence
and materials brought on record, as of necessity, is re quired to be made but
in the case of affirmance of the judgment of the trial Court, the narration of
the entire evidences and reiteration of the reasons given by the trial court
are not essential and expression of general agreement with that of the trial
court is sufficient—Code of Civil Procedure, 1908 (V of 1908), Section—I 15,
Family Court Ordinance, l’985 (XVIII of 1985), Section—115 read with order XLI
Rule 31.
Md. Nurul
Abser Chowdhury Vs. Most. Jesmin Akhter, 19 BLD (HCD) 363.
Judgment
when pronounced
Order
XX Rule I C.P.C. provides that when the judgment is to be pronounced on some
future day, the Court shall fix a day for that purpose with notice to the’
parties or their Advocates—Code of Civil Procedure, 1908 (V of 1908), Order XX
Rule I.
Md. Sam on
Miah Vs. Falani Begum and others, 15 BLD (AD) 251.
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 material
evidence on record—Code of Civil Procedure, 1908 (V of 1908), Order XLI Rule
31.
Jahanara
Begum Vs. Md. Aminul Islam Chowdhury and others, 17 BLD (AD) 195.
Judgment of
reversal
In
reversing the judgment of the trial Court the appellate Court is required to
reverse its material findings with reference to the evidence on record.
Musammat
Mohsena Khatun Vs; MIs. Habib Knitting Mills, 17 BLD (AD) 47.
Judgment of
reversal
In
reversing the judgment of the trial Court the appellate Court is required to
advert to the reasons assigned by the trial Court and set aside its material
findings with reference to the evidence on record. Reversal of the judgment of
the trial Court without complying with this requirement of law cannot be
sustained—Code of Civil Procedure, 1908 (V of 1908), Order XLI Rule 31.
Ranjit
Sarker and ors. Vs. Sree Sukhendu Bikash Biswas and others, 17 BLD (AD) 58.
JUDICIAL
MUNSHINKANAS
Judicial
Munshinkanas
The
Judicial Munshikhanas of the office of the Deputy Commissioners of the country
are found to be in a sorry state of affairs. The Deputy Commissioner concerned
should be more vigilant in respect of functioning of the Judicial. Munshikhana
and properly supervise its functions.
Almas Ali
Vs. Sohrab Miah and others, 17BLD (HCD) 150.
JUDICIAL
NOTICE
Judicial
notice
Judicial
notice was taken of the fact that under the two past Governments, decision was
taken to bar the use of polythene bags, but due to the resistance of the
manufacturers, the decision could not be implemented— Constitution of
Bangladesh, 1972, Article— 102.
K M Asadul
Ban v. Bangladesh and others, 22 BLD (HCD) 129.
JUDICIAL
REVIEW
Judicial
Review
Judicial
Review of Administrative action, is not in the nature of an appeal, against the
decision itself, what is examined in judicial review is only the locality or
otherwise of the decision making process.
Agragami
Engineers Ltd. Vs. Bangladesh Bank and others, 13 BLD (HCD) 327
Judicial
Review
Exercise of
a power by an authority
An
authority exercising a power, must exercise that power justly and fairly. Every
piece of legislation or rules empowering an authority to exercise a power would
contain the said duty to act Justly.
Agragami
Engineers Ltd. Vs. Bangladesh Bank and others, 13 BLD (HCD) 327.
Judicial
review
The
Court in judicial review of the action of the Government and of State
functionary in contractual matters, considered the rationality and
reasonableness of the decision made—Constitution of Bangladesh, 1972,
Article—102.
M/s. Hyundai
Corporation v.Sumikin Bussan Corporation & ors, 22 BLD(AD)16
Judicial
Review
When
an authority acts in accordance with the provision of a law which says that the
decision made by that authority is final and the decision is a judicial
decision, such a decision, though made final by fiction of law, is amenable to
the revisional jurisdiction of the High Court Division under Section 115 C.P.C.
Bangladesh
Vs. Md. Mazibur Rahman, 14 BLD (HCD) 362.
Judicial
Review
Where
a Tribunal assumes jurisdiction to conduct enquiry into a matter or passes an
order and when under the law decision of that Tribunal is final, not to be
challenged before any Court or authority, the High Court in exercise of its
power of review as well as in its supervisory capacity is competent to examine
whether the proceeding initiated before the tribunal was without jurisdiction.
If it is found to be without jurisdiction, the High Court can quash the
proceedings— Constitution of Bangladesh, 1972, Articles—102.
Mohammad
Nazmul Hossain Vs. The State, 16 BLD (HD) 287.
Judicial
Review
A
person seeking judicial review of administrative or quasi-administrative or
quasijudicial action must show that he has a direct personal interest in the
act challenged. Petitioner No. I being an adopted daughter of late Raja Mong
Prue Sam and having being brought up by him as a daughter in the family
according to the customs, tradition and practices of the family line, has the
locus standi to challenge the appointment of Respondent No. 5 as the Chief of
the Mong Circle. Appointment of Respondent No. 5 as the Mong Chief, keeping the
petitioners application for such appointment pending, is held to have been made
without any lawful authority— Constitution of Bangladesh, 1972, Article— 102.
Rajkumari
Unika Devi and another Vs. Bangladesh and others, 16 BLD (HCD) 408.
Judicial
Review
Legal
issues Of the nature raised in this case could only be resolved in case of
doubt or dispute by the superior Court exercising judicial review.
Khondkar
Delwar Hossain Vs. The Speaker, Bangladesh Jatiyo Shangshad, 19 BLD(HCD) 45
Judicial
Review
Where
a contract is entered into by the State and or by a statutory authority for the
performance of statutory duty, any breach of term of such contract is amenable
to judicial review by the High Court Division— Constitution of Bangladesh,
1972, Article— 102.
Q C Shipping
Limited and another Vs. Chittagong Port Authority and others, 19 BLD (HCD) 501.
JUDICIAL
SERVICE
Judicial
service
‘Judicial
service’ means a service comprising of persons holding judicial post not being
post superior to that of a District Judge.
According
to the definition of judicial service’ a District Judge is also a person
employed in the judicial service.
Md. Aftab
Uddin Vs. Bangladesh and others, 17 BLD (HCD) 92.
Judicial service
A
reference to Articles 94, 95, 96 arid 147 of the Constitution clearly reveal
the independent character of the Supreme Court. Chapter—IT of Part—VI of the
Constitution allots a separate and distinct existence of judicial service and
magistrates exercising judicial function. Under Article 109 the High Court
Division of the Supreme Court has been vested with the powers of
superintendence and control over all courts and tribunals subordinate to it.
[Per Latifur Rahman, J agreeing with Mustafa Kamal, C.J)
Secretary,
Ministry of Finance Vs. Mr. Md. Masdar Hossain, 20 BLD (AD) 104.
Judicial
service
The
creation of a B.C.S. (Judicial) Cadre as if it is a civil service was not only
within the contemplation of Article 136, but was also violative of the constitutional
scheme. Amalgamation is possible and permissible between allied services.
Judicial service may be amalgamated with judicial magistrates pursuing a
judicial career all the way. But as oil and. water cannot mix, the judicial and
civil administrative executive services are nonamalgarnable. [Per Mustafa Kamal
,CJ. 1— Constitute of Bangladesh, 1972, Article-136.
Secretary,
Ministry of Finance Vs. Mr. Md. Masdar Hossain, 20 BLD (AD) 104.
Judicial
service
As
per Article 152(1) of the Constitution ‘judicial service’ means a service
comprising persons holding judicial posts not being posts superior to that of
District Judge. It appears that a person holding judicial post from Assistant
Judge to that of a District Judge belongs to judicial service. Chapter II of
Part VI of the Constitution deals with subordinate courts. Articles 115, 116
and 1 16A speak of persons employed in ‘judicial service’ and ‘magistrates
exercising judicial functions’. It is clear that the members of the judicial
service and the magistrates exercising judicial functions exercise judicial
power of the State as distinct and separate from executive power and other
cadre services of the State. Article 1 16A also contemplates that the members
of the judicial service and magistrate exercising judicial functions shall be
independent in the exercise of their judicial functions. It is to be borne in
min1 that judicial functions is distinct from other functions as visualized in
the Constitution itself. [Per Latifur Rahman,J agreeing with Mustafa Kamal,
C.J.]
Secretary,
Ministry of Finance Vs. Mr. Md. Masdar Hossain, 20 BLD (AD)104
Judicial
service
The
judicial service as part of the service of the Republic has been distinctly
treated in Articles 140, 133 and 137 of the Constitution. The nature and
character of their function are different. Article 22 has emphasized on
separation of the judiciary from the executive. Sub-paragraph (6) of paragraph
6 of the Transitional and Temporary Provisions of the Fourth Schedule mandates
compliance of Chapter II of Part VI of the Constitution which in effect
requires all concerned to maintain, preserve and protect the independence of
the judiciary and also to enhance the separation of the judiciary from the
executive and preserve the then arrangement as a temporary and transitional
one—Constitution of Bangladesh, 1972, Articles—22, 133, 137 and 140, Part IV,
Chapter II, Para—6(6)
Secretary,
Ministry of Finance and others Vs Mr. Md. Masdar Hossain and others, 21 BLD (AD)
126.
Public
service commission for judiciary
Article
137 provides setting up of one or more Public Service commission’s for
Bangladesh as and when necessary but the same may not be a full-fledged one.
There is no impediment in the constitution for setting up of a separate Public
Service Commission which shall conduct tests and examination for the selection
of suitable persons for appointment to the judicial service of the Republic and
advise the President on any matter in which the commission is consulted under
clause (2) of Article 110 or any matter connected with its function which is
referred to the Commission by the President and such other functions as may be
prescribed by law—Constitution of Bangladesh, 1972, Article—110(2) and 137.
Secretary,
Ministry of Finance and others Vs Mr. Md. Masdar Hossain and others, 21 BLD (AD)
126.
Framing
Rules by the President
Article
115 provides that the appointments of persons to offices in the judicial
service or as magistrates exercising judicial functions shall be made by the
President in accordance with the rules made by him in that behalf—Constitution
of Bangladesh, 1972, Article—105.
Secretary,
Ministry of Finance and others Vs Mr. Md. Masdar Hossain and others, 21 BLD (AD)
126.
Separate
Judicial Service Commission
Setting
up of the separate Judicial Service Commission is not contrary to the provision
of Article 133 of the Constitution which provides that subject to the
provisions of the Constitution the parliament may by law regulate the
appointment and conditions of service of persons in the service of the
Republic. Article 133 cannot be invoked for the judicial officers—Judicial
officials are not persons in the service of the Republic for the purpose of
Article 133 and hence rules regarding their appointment and conditions of
service cannot be framed under Article 133.
Secretary,
Ministry of Finance and others Vs Mr. Md. Masdar Hossain and others, 21 BLD(AD)
126.
JURISDICTION
Jurisdiction
Advisory
jurisdiction of the Appellate Division
This
Article provides that any question of law may be referred by the President for
opinion of the Appellate Division if at any time it appears to him that such a
question has arisen or is likely to arise which is of such a nature and of such
public importance that it is expedient to obtain the opinion of the Supreme Court.
The satisfaction of the President for making the Reference is not justifiable.
Special
Reference No. I of 1995, 15 BLD (AD) 194.
Jurisdictional
defence
The
Jurisdictional defect, either pecuniary or territorial or in respect of the
subject matter of the action, strikes at the very authority of the Court to act
on a Decree passed by a Court having no jurisdiction to try the suit is a
nullity—Suits Valuation Act (Act VII of 1870).
Abul Kashem
Md. Lutfullah Vs. Safid Islam (Dumb) and others, 13 BLD (HCD) 648.
Jurisdiction
of the Court
The
question of jurisdiction of a Court is not a mere technicality, but it is
fundamental in nature.
Any
decision arrived at by a Court having no jurisdiction to try the case, is a
nullity.
Kamaruddin
and others Vs. Aftabuddin Ahmed and others, 14 BLD (HCD) 135.
Ref:
44 DLR (AD) 260, 35 DLR 14, 22 DLR 444 – cited.
Jurisdiction
of the Court
The
jurisdiction of a Court is not a mere technicality but it is fundamental in
nature.
Komoruddin
and others Vs. Aftabuddin Ahmed and others, 14 BLD(HCD)134
Jurisdiction
of writ court
The
High Court Division in its writ jurisdiction is not a Court for the recovery of
money and has no jurisdiction to give a direction for payment of a particular
amount of money to the writ-petitioner, unless the amount claimed is both an
admitted amount as well as a statutory payment. The High Court Division
exceeded its jurisdiction in passing the impugned order.
Chairman,
Bangladesh Water Development Board and another Vs. MIs. Shamsul Huq and Co. Ltd.
and ors, 20 BLD (AD) 41
Jurisdiction
Ouster of
Jurisdiction
A
close scrutiny of clause (1) and (5) of the Article discloses that the ouster
of civil court’s jurisdiction under clause (5) though expressed is not without
conditions. First, there has to be an existence of a liability of repayment of
a loan. Secondly, there has to be default in re-payment of loan in terms of the
agreement. Thirdly, the properties to be taken over and/or sold by the Sangstha
must have to be a property pledged, mortgaged, hypothecated or assigned by the
industrial concern to secure its liability to the Sangstha. The power under
clause (1) can be exercised if the aforesaid conditions are fulfilled and the
ouster clause (5) comes into play when the Sangstha acts in consonance with
clause (1) and not otherwise. In this regard the expression “under clause (1)”
occurring in clause (5) and the expression “such taking over or transfer” in
the said clause and clause (5)(a)(i)(ii)(iii) are particularly noticeable. In
other words, if the conditions of clause (i) are not fulfilled the ouster
clause (5) does not operate. In that case the purported action under clause (1)
would be taken without jurisdiction. Such a case will not come within the
mischief of clause (5).
Bangladesh
Shilpa Rin Sangstha Vs. Rahman Textile Mills Ltd. and ors, 19 BLD (AD) 207.
Jurisdiction
Vacation
bench
When
during the vacation only a Single Judge is invested with all the jurisdictions
that the High Court Division exercises, the learned Single Judge can even keep
in abeyance during the period of the vacation an order passed by a regular
Division Bench, once he is satisfied that it is both urgent and proper to
interfere. But this unusual power must be exercised sparingly and with utmost
caution, keeping in mind the usual limitation of a Single Judge—Rules of the
High Court of Judicature for East Pakistan, Chapter III of Part I (Volume 1).
Azizur
Rahman alias Md. Azizur Rahman Vs. Govt. of Bangladesh and others, 17 BLD (AD)
203.
Jurisdiction
The
Court of Small Causes has no jurisdiction to entertain and try a suit for
possession of an immovable property by evicting a licencee therefrom—Small
Cause Courts Act, 1887 (TX of 1887), Section -15(2) read with clause (4) of
Article .1 of the Second Schedule.
Aziz Ahmed
Sarker and ors. Vs. Sree Sree Laxmi Narayan Jew Thakur, 17 BLD (AD) 174.
Jurisdiction
The
Admiralty Court has the jurisdiction under the provision of section 34 of the
Admiralty Court Act, 1861 to suspend the proceedings in the principal cause
until security has been given to answer the judgment in the cross
cause—Admiralty Court Act, 1861, Section—34.
G.D. ALESIO,
LIVORNO, of M. V. MA URO DALESIO HAWAI SPLENDOUR and BLD (HCD) 324.
Jurisdiction
Form of
filing suit
In
view of the fact that both the High Court Division and the District Court enjoy
co-extensive power to entertain and try suits on negotiable instruments through
the summary procedure, the applicant cannot compel the High Court Division to
entertain such suits—Code of Civil Procedure, 1908(V of 1908), Order XXXVII
Rule 1 and 2.
Italy,
owner Vs. M.V. others, 17
10—Years
Civil Digest (Index)
459
Ansarul
Hoque Vs. Agrani Bank, 18 BLD (HCD)138
Jurisdiction
Plaintiff
No. 1 Shamsun Nahar Begum never appealed against the decree of the original
court nor did she take any appeal therefrom She did not also prefer any
revision. In such circumstances the learned Judges of the High Court Division
had no jurisdiction to give her any further relief beyond what was granted by
the first two courts below.
Md. Hefzur
Rahman Vs. Shamsun Nahar Begum and another, 19 BLD(AD) 27
Jurisdiction
The
dispute raised by the two B.N.P. leaders by their letters to the Speaker could
not have been settled through parliamentary proceeding simple because
Parliament is not forum envisaged by the Constitution to address such a
dispute. The constitution clearly defines the forum to be the Election
Commission. Consequently Article 78 is not attracted and the Courts
jurisdiction is not ousted—Constitution of Bangladesh, 1 972Article—78.
Khondker
Delwar Hossain Vs. The Speaker, Bangladesh Jatiyo Shangshad, 19 BLD (HCD) 45.
Jurisdiction
The
view of the High Court Division that the writ court is not competent to
interfere with an administrative order is totally wrong. No action detrimental
to the vested right of an individual or corporate body can be taken except in
accordance with law—Constitution of Bangladesh, 1972, Article—102
Brahamanbaria
Pourashava Vs. Secretary Ministry of Land Reforms, Government of Bangladesh and
others, 19 BLD (AD) 87.
Jurisdiction
Jurisdiction
is a creature of statute or law. If the statute does not expressly confer
jurisdiction upon any Court, the order passed by the Court becomes
coram-non-judice. Since the Constitution is silent the High Court Division have
no jurisdiction to hear the review applications.
Md. Omar
Faruk Vs. Government of Bangladesh and others, 19 BLD (HCD) 70.
Jurisdiction
The
Rule does Snot empower the speaker to decide whether a member has vacated a
seat or not—Constitution of Bangladesh, 1972, Rule 178(3)
Md. Fazlur
Rahman v Md. Abdul Hamid, Advocate & ors, 22 BLD (HCD) 631.
Jurisdiction
As
the Payment of Wages Act prescribes no procedure for the trial of offences
punishable under the said Act, the proceedings will be carried on in manner
provided for by the Code of Criminal Procedure.
The
Chairman of the Labour Court has jurisdiction to try offences under the said
Act, and the power to issue process is incidental and ancillary to the power of
taking cognizance of an offence—Payment of Wages Act 1936 (IV of 1936),
Sections —15, 20 and 21, Code of Criminal Procedure 1898 (V of 1898),
Sections—5, 29, 36, 37, 68, 75 and 204.
Hayder Meah
v. Authority appointed under section 15(1) of the Payment of Wages Act 1936 and
Chairman, 1St Labour Court, Dhaka, and ors, 22 BLD (HCD) 244.
Jurisdiction
Small Cause Court
Jurisdiction
of the Small Cause Court depends upon the subject matter of the suit and not
upon the correctness of the plaintiffs contentions in respect of the subject
matter. The frame of the suit itself is necessary to be taken into
consideration before deciding whether the suit is triable by the S.C.C. Court
or not. It is a settled question of law that Court of Small Cause is not
entitled to consider the question of title but incidentally it can go into the
question of title. In the instant case the learned S.C.C. Judge at length dealt
with the question of title and ultimately decided the question of title finally
in observing that the plaintiff is the owner of the suit premises although the
defendant has denied the title of the plaintiff and further that the defendant
is his tenant.
The
suit being an S.C.C. Suit and the relief sought by the plaintiff is ejectment
of the defendant from the suit premises claiming that the suit land belonged to
them without filing a suit for declaration of title and under the garb of Small
Cause Courts Act, they tried to evict the defendant, such a suit is not
maintainable in law.
Dr. Abdul
Gani Vs. Mujibur Rahman & ors., 19 BLD (HCD) 480.
KABINNAMA
Kabinnama
If
the marriage is otherwise valid, the mere absence of a written, kabinnama or
want of its registration does not render the marriage invalid.
Md. Chan Mw
Vs. Rupnahar, 18 BLD (HCD) 329.
Ref:
(1886)8All 149; 18 BLD(1998)31; Tyabjis Muslim Law, 4th Edn. paragraph 87; (1933)55
All 743;—Cited.
Kabinnama—Signatures
of the parties
The
Muslim marriage being a socio-religious contract between a man, and woman,
signatures of both the parties in the Kabinnama are essential for providing
marriage. No amount of oral evidence can cure this basic deficiency.
Khodeja
Begum and ors. Vs. Md. Sadeq Sarkar, 18 BLD (HCD) 31.
KABULIYAT
Kabuliyat
It
provided that the Bengal Tenancy Act was made applicable to the whole of Bengal
except any area which constituted a municipality under the provision of the
Bengal Municipal Act, 1932. Anandaganj Bank acquired tenancy right in the suit
property on 1.9.1930 and it duly executed and registered a Kabuliyat in favour
of the landlords. The learned trial Court was wrong in discarding the said
Kabuliyat on the ground that it was a unilateral document and not bilateral
one—Bengal Tenancy Act, 1885 (VIII of 1885), Clause 3 of sub-section 3 of
Section 1.
Md. Idris
Ali and another Vs. D.C. Jamalpur, 16 BLD (HCD) 303.
LABOUR COURT
Labour Court
The
Labour Court’s power to convert an order of dismissal to one of termination
with attendant benefits under Section 19 of the Act rests on the general
principles that a dismissed worker should not be foisted upon his
employer—Employment of Labour (Standing Order) Act, 1965, Section—19.
Chittagong
Urea Fertilizer Ltd. Vs. The Chairman, Labour Court, Chittagong and another, 14
BLD (AD)153.
Labour Court
In
appropriate cases, the Labour Court is competent to pass any order as it may
deem just and proper and may require the reinstatement of the complainant under
Section 25(d) of the Act Employment of Labour (Standing Order) Act, 1965,
Section—25(d.
Chittagong
Urea Fertilizer Ltd. Vs. The Chairman, Labour Court, Chittagong and another, 14
BLD (AD) 153.
LEGITIMATE
EXPECTATION
Legitimate
Expectation
For
a legitimate expectation to arise, the decisions of the administrative
authority must affect the person by depriving him of some benefit or advantage
which either he had in the past been permitted by the decision maker to enjoy
and which he can legitimately expect to be permitted to continue until some
rational grounds for withdrawing it are communicated to him and he is given an
opportunity to defend his cause.
The Chairman
Bangladesh Textile Mills Corporation v. Nasir Ahmed Chowdhury and others, 22
BLD (AD) 199
Legitimate
Expectation
Every
such legitimate expectation does not by itself fructify into a right and
therefore it does not amount to a right in the conventional sense.
The
Chairman, Bangladesh Textile Mills Corporation v Nasir Ahmed Chowdhury and
others, 22 BLD (AD) 199.
Legitimate
Expectation
The
word ‘legitimate expectation’ was first coined in 1969 by Lord Denning in the
case of Schmidt. The legitimate expectation of a person can be enforced only
when he has got a legal right.
The
expression ‘legitimate expectation’ first used by Lord Denning has by now been
established as a principle of law. This principle in essence imposes a duty to
act fairly and it requires the concerned authorities to act reasonably in
dealing with the rights and interests of the people under given circumstances.
If there is any breach of such right or interest, the court should not be slow
in upholding it. if the situation so demands, the court shall strike down such
orders in exercise of its power of judicial review of executive actions.
Bangladesh Soya-Protein Project Ltd. v. Secy.
Mini, of Disaster Management, 22 BLD (HCD)378
Legitimate
expectation
Legitimate
expectation—when to be enforced?
In
discontinuing the School Feeding Program, the Government had failed to
implement its own policy decision thwarting the legitimate expectation of the
petitioner that the Government would continue they said program, which was
solemnly accepted in their policy decision.
The
discontinuance of the said School Feeding Program was in gross violation of the
legitimate expectation not only of the petitioner alone but also of the
millions of under-nourished children of Bangladesh, and as such it demands
interference by this Court in judicial review of the executive inaction of the
Government.
Bangladesh
Soya-Protein Project Ltd. v. Secy. Mini, of Disaster Management, 22 BLD (HCD) 378.
Ref
: Associated provincial Picture House Ltd. v. Wednesbury corporation (1948) 1KB
223; (1947) 2A11 ER 680; C.C.S.U (1985) 1AC374; R.V. secretary of State for the
home department exparte Hargreaves (1997) IWLR9O6; R.V. Secretary of State for
the Home Department, exparte Khan (1985)lAll ER 40;–discussed.
LETTER OF
CREDIT
Letters of
Credit
Letter
of Credit (LJC) is a mechanism of great importance in international trade. Any
interference with L.C. is found to have serious repercussions on the
international trade of a country and as such the convenience is always in
favour of the L.C.
Sarhind
Garments Ltd. Vs. Glory Truth Industries Ltd. and anr, 17 BLD (HCD) 204.
Letter of
Credit
The
contract itself clearly shows that the letter of credit opened by the plaintiff
would be subject to approval by the Saudi Fund for Development and such an
approval having not come from the Saudi Fund for Development, the letter of
credit and also the contract could not be operative in consequence of which the
Bank Guarantee was not encashable. The Court below was wrong in holding that
the Bank Guarantee was encashable
Habib Bank
Ltd. Vs. Bangladesh, BLD (HCD) 601
Ref:
1982 BLD 17; AIR 1989 (SC) 1 834—Cited.
Letter of
Credit
The
proceeds of a letter of credit do not came within the provisions of Order 38
rule 5 for attachment before judgement in a suit concerning a dispute between
the buyer and seller—Code of Civil Procedure 1908 (V of 1908), Order XXVIII
Rule 5.
Gooryonly
(BD) Textile lid. v. Chartkar Information Holding Ltd. & ors., 22 BLD (AD)
89.
LIFTING THE
VEIL OF INCORPORATION
Principle
for lifting the veil of Incorporation
Piercing
the veil of incorporation has become imperative so that an error in law is not
made, public inconvenience is defeated and public injury caused thereby is
avoided. Both Gower and Farrar have classified in their books various
categories of cases where the corporate veil may be pierced by the Court. But
they also agree that no consistent and inflexible principle can be evolved in
determining the question as to whether the veil of incorporation should be lifted
or not. It remains on the court to decide whether the facts of the case justify
the lifting of veil of incorporation and this Court held that this is an apt
case to do so.
Professor
Muzaffer Ahmed Vs Bangladesh Bank & others, 20 BLD (HCD) 235.
Lifting the
Veil of Incorporation
The
circumstances, under which the fundamental principle of corporate entity as
laid down in Salomon’ s case may be disregarded, are many, one of which is to
find whether there exists the relationship of holding and subsidiary companies,
among a group of companies.
The
Board of BRAC Bank is composed of BRAC, represented by Mr. Abed and some other
individuals who are not only it’s members but also its employees. The control
of the composition of the board or BRAC bank i.e., power to appoint or remove a
majority of the board passes to BRAC. They will remain separate entities in
name alone but to all intent and purposes they are the same economic unit. In
sum, BRAC Bank is BRAC which is a society registered under the Societies Registration
Act, 1860, not allowed by law to purchase shares in a banking company. Instead
of remaining a charitable and social welfare society it will become a financial
institution with a vital role to play in the economic dynamics and money market
of the country. BRAC as a creature under the Societies Registration Act, is not
allowed in this sort of venture investment.
Professor
Muzaffer Ahmed Vs Bangladesh Bank & others, 20 BLD (HCD) 235.
LIMITATION
Limitation
If
an appeal is dismissed on ground of limitation, conflicting decision is likely
in the other appeal against the same judgment when decided on merit—Limitation
Act, 1908(Act IX of 1908), Section—5.
Md.
Suruzzaman Vs. Bangladesh and another, 13 BLD (AD)125
Limitation
The
Section 5 of the limitation act has not been made applicable to a proceeding
under Order 41, Rule 19 Cr.P.C.
Abdul Awal
and another Vs. Hazrat Au and others, 13 BLD (HCD) 471.
Limitation
The
limitation for filing an appeal before the District Judge is 30 days from the
date of the Decree—Limitation Act, 1908(Act IX of 1908), Section—5,
Article—152.
Momtaj Uddin
and another Vs. Yakub A14 13 BLD (AD) 219
Limitation
Non-explanation
of delay, effect of
Where
no attempt is made by plaintiff to explain delay in coming to Court, nor the Plaintiff
makes any application for extension of time beyond two years, there is
substantial reasons or special circumstances for which a Defendant can be
deprived of the legal right of limitation which he has got.
Bangladesh
Inland Water Transport Corporation Vs. M/S, Seres Shipping Incorporated and
others, 13 BLD (HCD)587
Limitation
When
a special or local law prescribes a period of limitation for filing a suit,
appeal or application different from the period prescribed by the First
Schedule of the Limitation Act, the provision of Section 4, Sections 9-18 and
Section 22 will apply—Limitation Act, 1908 (IX of 1908), Section—29(2).
Md. Ishaque
and others Vs. the Government of Bangladesh, 14 BLD (AD) 39.
Limitation
Bar of
Limitation
In
a case in which there is no evidence for the pre-emptee challenging the date of
knowledge of the pre-emptor, the contention that an application is barred by
limitation is not tenable in law.
Md. Jafar
Ali Vs. Hushiar Ali and others, 14 BLD (AD) 4.
Plea of
Limitation -When not maintainable
When
the petitioner on his own seeking added himself as a defendant 3 years after
the institution of the suit, is does not lie in his mouth to say that the suit
is barred against him—Limitation Act, 1908 (IX of 1908), Section -22(1).
Mohammad Gazi
Miah Vs. Syed Abdur Rouf and others, 15 BLD (AD) 54.
Limitation
Prosecuting
a case in a Court without jurisdiction
There
is no doubt that Section 14 of the Limitation Act provides for exclusion of
time of a case bonafide prosecuted by a party in a Court having no jurisdiction
to entertain it. But in the instant case there being nothing on record to show
that the decree-holder bonafide prosecuted the case in any wrong forum, the
learned Assistant Judge erred in law in giving the decree-holder the protection
of Section 14 of the Limitation Act—Limitation Act, 1908(IX of 1908),
Section—14
Babul
Chowdhury and others Vs. Reba Rani Saha and others, 15 BLD (HCD) 644.
Limitation
It
provides that for setting aside a decree obtained by fraud, the period of limitation
is 3 years from the time fraud becomes known to the party wronged. In the
instant case, the plaintiff having unsuccessfully sought against the ex-parte
decree dated 9.1.1971 in two miscellaneous cases under Order 9 Rule 13 C.P.C.
which were dismissed on 28.2.72 and 13.2.73 respectively, the present O.C. Suit
No. 492 of 1981 challenging the aforesaid ex-parte decree is evidently barred
by limitation—Limitation Act, 1908(IX of 1908), Section—95.
Most.
Jinnatunessa Vs. Bangladesh, 15 BLD (HCD) 104.
Limitation
Suit for
dower
A
suit for dower is essentially a suit for enforcing a simple money claim based
solely on a contract entered into by the husband with the wife at the time of
the marriage. In the absence of a prescribed period for tiling a suit for dower,
the period of limitation will be 6 years under Article 116 of the Limitation
Act in preference to Articles 103 and 104 of the said Act—Limitation Act,
1908(IX of 1908), Articles—103, 104 and 116.
Atiqul Hoque
Chowdhury Vs. Shahana Rahim and another, 15 BLD (HCD) 559.
Limitation
It
provides that the period of limitation shall be 3 years if the date is fixed
for the performance of an act and when no such date is fixed, then within 3
years from the time of the plaintiffs knowledge of refusal of the performance—Limitation
Act, 1908(IX of 1908), Article-i 13.
Md. Serajul
Islam Vs. Sree Binoy Bhusan Chakraborty and others, 15 BLD (HCD) 241.
Limitation
‘No objection certificate” for the
construction of a cinema hail having been duly issued by the Deputy Commissioner
under the Cinematograph Rules and it being within the knowledge of the
plaintiffs, it was incumbent upon them to file the suit within one year of the
issuance of the impugned order to avoid the bar of limitation under Article 14
of the Limitation Act.
Shaikh
Tabibur Rahman and others Vs. Shaikh Nazrul Islam and others, 16 BLD (HCD) 12.
Limitation
Section
14 of the Limitation Act is not applicable to proceedings before the
Administrative Tribunal.
Md. Abdus
Sukkur Vs. Chairman, National Board of Revenue and others, 17 BLD (AD) 43.
Limitation
Limitation
of filing civil suit
The
long standing practice of our Courts is that a civil revision is to be filed
within ninety days as prescribed by law for an appeal. The Court can in its
discretion condone the delay where there is no negligence or laches on the part
of the petitioner.
The Govt. of
the People’s Republic of Bangladesh and another Vs. Md. Abdul Gafur Pramanik
and ors, 14 BLD (AD) 234.
Limitation
After
the petitioner’s appeal under Rule 17 of the Rules was dismissed by the
appellate authority he was required to file the case before the Administrative
Tribunal within 6 months of the disposal of his appeal. Case filed beyond the
period of 6 months must be held to be barred by limitations— Administrative
Tribunals Act, 1980 (VII of 1981), Section—4(2).
Osman Gani
Vs. Government of Bangladesh, 17 BLD(AD)306.
Limitation
Limitation
in filing Civil Revision
Although
the Limitation Act itself does not provide any specific period of limitation for
filing a civil revision the long standing practice of the Supreme Court has
been to file such an application within a period of 90 days. In an appropriate
case the High Court Division may of course condone reasonable delay.
Additional
Deputy Commissioner (Revenue) and Assistant Custodian, Vested Property,
Serajganj Vs. Md. Abdul Majid and others, 17 BLD (AD) 57.
Limitation
Period of
limitation
The
case has been dismissed by the Court of Settlement as barred by limitation
holding that the petitioner failed to file the petition within 108 days from
the date of publication of the list in the official gazette as per provision of
section 7(1) of the Ordinance. It is difficult to understand under what reason
the period of limitation has been fixed at 108 days. Either it would be one
month, three months or six months but section 7(I) of the Ordinance has
provided the limitation for 108 days which means 3 months 18 days and such
period of limitation could no where be found in the Limitation Act or in any
other special Act providing limitation, This may be through inadvertance or
mistake that 180 days has been printed as 108 days. The Ministry of Law Justice
and Parliamentary Affairs shall look into the matter and if it is a mistake in
providing limitation of 108 days instead of 180 days, they should come out with
an appropriate amendment in the section at the earliest in order to avoid
mis-chief of limitation for wrong printing of the period of limitation in the
Ordinance—Abandoned Buildings (supplementary provisions) Ordinance, 1985 (LIV
of 1985), Section—7(1)
Md. Jamal
Hossain and others Vs. Chairman, 2nd Court of Settlement, Bangladesh Abandoned
Buildings, Dhaka and others, 19 BLD (HCD) 432.
Limitation
Since
section 34 of the Ordinance prescribes no special period of limitation for
preferring an appeal before the Arbitration Appellate Tribunal, the general law
of limitation comes into play and section 5 of the Limitation Act becomes
applicable in such cases— Acquisition and Requisition of Immovable Property
Ordinance, 1982 (11 of 1982), Section—34.
Govt. of
Bangladesh Vs. District Judge, Dhaka and Arbitration Appellate Tribunal, Dhaka
and ors., 17 BLD (HCD) 448.
Limitation
For
determining the question of limitation for presenting an application before the
Rin Shalishi Board, along with the requirement of section 7(1) of the Act
providing that such an application has to be filed within 6 months of the date
of the constitution of the Board, other requirements under section 7 of the Act
that the application has to be filed in accordance with the procedures
prescribed by the Rules have also to be satisfied. Limitation will thus run not
from the date of the constitution of the Board but from the date of the actual
functioning of the Board—Rin Shalishi Am, 1989 (XV of 1989), Section—7(1)
Ajahar Ali
Sarder Vs. Mohammad Ismail Howlader and others, 18 BLD (AD) 53.
Limitation
The
period of limitation for approaching the arbitrator under clause (aaa) of
section 7 of the Act would be computed from the date of receipt of the notice
by awardee and not from the date of knowledge derived otherwise—East Bengal
(Emergency) Requisition of Property Act, 1948(XIII of 1948), Section—7(aaa)
Md. Abdul
Majid Dana Vs. Bangladesh, 19 BLD (AD) 7.
Limitation
The
prescribed period of limitation for filing appeal from an order passed under
section 86 and 87 of the Co-operative Societies Ordinance, 1984 is one month
from the date of knowledge of the decisions. Section 134(3) provides that
section 5 of the Limitation Act shall not be made applicable to an appeal filed
under Section 134(1). There is no reason to hold that because the petitioner
could not file the appeal within prescribed period of limitation within 30 days
due to devastating cyclone the petition ought to have been accepted by the
learned District Judge on condonation of delay and the learned District Judge
dismissed the case illegally holding that the appeal before the appellate
authority was time barred. When the Ordinance, a special enactment, excludes
the application of section 5 of the Limitation Act for condonation of delay to
an appeal it cannot be hold that the learned District Judge failed to exercise
his jurisdiction vested under section 134(5) of the Ordinance in not condoning
delay in filing the appeal. Where a special enactment expressly provides that
for filing an appeal beyond period prescribed provision of Section 5 of the
Limitation Act shall not be made applicable the appellate authority before whom
the appeal lies has no power to condone delay by applying provision of section 5
of the Limitation Act for accepting the appeal—Co-operative Societies
Ordinance, 1984 ( I of 1985), Sections—86, 87, 134(3), Limitation Act, 1908 (IX
of 1908), Section—5
Afazuddin
& ors. Vs District Judge, Cox’s Bazar, 19 BLD (HCD) 340.
Limitation
Question
of limitation is a mixed question of law and fact which can be decided at the
time of trial on taking evidence.
Md. Mahbubul
Haque Vs Md. A. Kader Munshi, 20 BLD (AD) 82.
Limitation
Question
of limitation is a mixed question of law and fact which can be decided at the
time of trial on taking evidence.
Md. Mahbubul
Haque Vs Md. A. Kader Munshi, 20 BLD(AD) 82
Ref:
Shahabuddin Vs. Habibur Rahman, 5ODLR(AD)99—relied
Limitation
For
recurring refusals the limitation in a suit for specific performance of contract
cannot be extended. Limitation Act will run according to Article 113 of the
Limitation Act from the date when the plaintiff noticed that the performance Of
the contract is refused, and the suit is to be filed within 3 years from the
date of the first refusal. The limitation will not be extended for subsequent
refusal or recurring refusals or on the basis of cause of action as founded on
the last date of refusal.
Panna Khan
& ors. Vs. Birendra Nath Halder & ors., 21 BLD (HCD) 294.
Limitation
for execution
Under
Article 182 time for execution of a decree or order runs from the date of the
final decree or order of the appellate Court or from the date of decision
passed in revision or review—Limitation Act, 1908 (IX of 1908), Article—1 82.
Md. Hares
Mia Vs. Khorsheda Khatun and others, 16 BLD (HCD) 604.
Limitation
for execution
Once
it is found that an application for execution of the decree has been filed
after 3 years from the date of the decree, the execution of the decree becomes
barred under Article 182 of the Limitation Act. In such a case the decree
becomes non-executable as being time barred.
Babul
Chowdhury and others Vs. Rea Rani Saha and others, 15 BLD (HCD) 644.
Limitation
for execution of decree
Section
48 C.P.C. and Article 182(2) of the First Schedule to the Limitation Act
provide the period of limitation for the execution of a decree.
The
Code of Civil Procedure fixes the longest period whereas the Limitation Act
fixes the earliest period for taking the first step towards execution of a decree.
An application for execution must therefore satisfy first the requirement of
Article 182(2) of the Limitation Act. If the execution case is hit by any of
the two provisions noted above it must fail—Code of Civil Procedure, 1908 (V of
1908), Section—48, Limitation Act, 1908 (IX of 1908), Article -182(2) of the
First Schedule
Assistant
Custodian, Enemy Property and A.D.C. (Revenue) Pabna Vs. Md. Abdul Halim Mia,
16 BLD (AD) 73.
LOCAL
AUTHORITY
Local
authority
On
interpretation of section 7 of the ordinance read with section 30(1)(b) of the
Intermediate and Secondary Education Ordinance, 1961 it is held that a
non-government school comes within the definition of local authority. A teacher
of a local secondary school is therefore disqualified for election to the local
Un- ion parishad—Local Government (Union Parishad) Ordinance, 1983 (LI of 1983)
Section-7.
Abdul Mazid
Vs. Abu Zaffor Mohammad Khalil and others, 14 BLD (HCD) 488.
Local
authority
Although
Sammillani Girls High School is a recognised non-government secondary school
and it is, like any other non- government secondary school, regulated and
managed in accordance with the provisions of Ordinance No. XXXIII of 1961 and
the various other regulations made thereunder and the Government have control
over the school in a very large measure, nevertheless inspite of all these
non-government secondary school has not become a statutory body’ or a local
authority’ within the meaning of the General Clauses Act. The Headmaster of the
school, therefore, is not disqualified to be the Chairman of Union Parishad
under Section 7(2)(e) of the Local Government Ordinance, 1983.
Mofizul Huq
Vs. Mofizur Rahman and others 16 BLD (AD) 139.
Ref:
14 BLD48 8—Cited and over-ruled.
LOCAL
INSPECTION
Local
Inspection
An
order rejecting a prayer for local inspection should assign proper reasons, and
should not be non-speaking order—Code of Civil Procedure 1908 (V of 1908),
Order XXVI, Rules 9 and 10.
Al-Haj
Saiful Alam v. Abdul Salam & ors., 22 BLD (HCD) 360.
LOCAL
INVESTIGATION
Local
investigation
Determination
of the location of a boundary wall. A boundary wall whether falls within a
certain plot or not can only be determined by a local investigation—Code of
Civil Procedure 1908 (Act V of 1908), Order 26, Rule 9.
Most. Howa Bibi
Vs. Kazimuddin SK., 13 BLD (HCD) 339.
Local
Investigation
When
the earlier report by the Advocate Commissioner was on record and the objection
against the said report was pending, the impugned orders cancelling the
appointment of the earlier Advocate Commissioner and appointing a new Advocate
Commissioner in his place are contrary to the provision of Order XXVI, Rule 10
C.P.C. —Code of Civil Procedure, 1908, Order XXVI, Rule 10.
Shamsul
Islam and another Vs. Arman Au and others, 14 BLD (HCD) 176.
Local
Investigation
Order
26 Rule 9 of the Code of Civil Procedure provides for holding local
investigation on specified grounds when the Court finds a local investigation
necessary and proper for the purpose of elucidating any matter in dispute but
the Court has no power to delegate its authority to the commissioner for
ascertaining facts which are required to be decided by him alone on taking
evidence—Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9.
Md. Belayet
Hossain Vs. Shah Alam Parvez & ors., I9BLD(HCD) 359
Local
investigation
A
court is not bound to issue a commission. It is in the disdetion of the Judge
to grant or refuse local investigation—Code of Civil Procedure, 1908 (V of
1908), Order XXVI Rule 9.
Matasim
Ali Chowdhury Vs Md. Ismail, 21 BLD
(HCD) 216
LOCUS STANDI
Locus Standi
When
a person approaches the Court for redress of a public wrong or public injury,
though he may not have any personal interest, must be deemed to have sufficient
interest in the matter if he pursues the cause bonafide. [Per Latifur Rahman, J.]
Dr.
Mohiuddin Farooque Vs. Bangladesh and ors., 17 BLD (AD) 1.
Locus Standi
Since
the petitioner is one of the lessees of the locality and since the entire area
will be adversely affected by the action of Respondent No.1, she has got
locus-standi as an aggrieved person to file the writ petition— Constitution of
Bangladesh, 1972, Articles—102.
Mrs. Parvin
Akhter Vs. The Chairman, Rajdhani Unnayan Kartipakkha and others, 18 BLD (HCD) 117.
Locus
Standi—Error of Law
The
petitioner’s interest in the subject matter seems to be bonafide to espouse a
public cause, involving public wrong in as much as there has been a gross
violation of the laws relating to the Societies Registration Act, 1860, the
Foreign Donations (Voluntary Activities) Regulation Ordinance, 1978, affect.
ing the fundamental rights of an indeterminate number of people, including
intending promoters of banking who steadfastly adhere to the laws of
Bangladesh. All these demand the Court to be responsive and to react to the
alleged error of law and the consequent public injury, caused by the issuance
of the impugned letter of ‘no objection’ and the registration of BRAC Bank by
the Bangladesh Bank and the Registrar, Joint Stock Companies
respectively—Constitution of Bangladesh, 1972, Article—102.
Professor
Muzaffer Ahmed. Vs. Bangladesh Bank and others, 20 BLD (HCD)235
Locus Standi
Any
wrong doing or invasion of public rights against the aims and objects of
societies does clothe the petitioners with the necessary locus standi to move
the courts of law— Constitution of Bangladesh, 1972, Article-102.
Professor
Nurul Islam Vs. Government of Bangladesh, 20 BLD (HCD) 377.
Locus Standi
The
petitioner is a practicing Advocate of the High Court Division. He has alleged
that because of hartal he was unable to pursue his profession. The petitioner
claiming that he is affected by the hartal call he is therefore an aggrieved
person and hence he has the locus standi to file the instant writ petition—
Constitution of Bangladesh, 1972, Article— 102.
Khondaker
Modarresh Elahi Vs The Government the People’s Republic of Bangladesh, 21 BLD
Locus Standi
In
filing a suit under section 9, a plaintiff must have locus standi as well as
legal right in order to claim a relief against a defendant. A plaintiff cannot
file a suit on behalf of a company without any specific tangible interest in
the said company—Code of Civil Procedure 1908 (V of 1908), Section—9.
Shafi A.
Choudhury v. Pubali Bank Ltd. and others, 22 BLD (HCD) 423.
Locus Standi
Intervenors
Locus Standi
In
the absence of any law or rule, and in the facts and circumstances, it is not
possible to refuse to hear the intervenors.
Mr. Mainul
Hosein & ors. Vs. Ms Sheik Hasina Wazed, 21 BLD (HCD) 109.
Ref:
AIR 1954(SC)186; PLD1972 (SC) 39; (1983) 35 DLR (AD) 290; (183) 35 DLR (AD)203;
1970]2QB 114, 129; [19791 AC 440, 449F; AIR 1983 SCI15I; (1986) 38 DLR (AD)
188; PLD 1975 (SC) 383; PLD 1988 (SC)823;–Cited.
Locus Standi
The
impugned order of the Rin Salishi Board being illegal and without jurisdiction,
the petitioner is not debarred from invoking writ jurisdiction under Article
102 of the Constitution without availing of the alternative remedy by way of
appeal before the Revenue Authority—Constitution of Bangladesh, 1972,
Article—102.
Mohammad
Salim v Assistant Commissioner of Land and Chairman, Debt Settlement Board and
others, 22 BLD (HCD) 475
Locus Standi
The
service agreement entered into by and between the subscribers including the
petitioner and Grameen Phone is not an ordinary trading agreement but a
contract entered in this regard or providing mobile telephone services by
Grameen Phone as an agent and licencee of the Government. Any act of Grameen
Phone in breach of the contract or showing lack or want of transparency and
bonafide on its part as complained of by the petitioner is accountable in writ
jurisdiction—Constitution of Bangladesh, 1972, Article— 1 02(2)(a)(ii)
Zakir
Hossain Munshi v. Government of the People’s Republic of Bangladesh, 22 BLD
(HCD) 483.