BLD’s Ten Years Civil Digest (1993—2002) Index
PARDANASHIN
LADY
When a
document is executed by an illiterate pardanashin lady, onus heavily lies upon
the recipient of the document to show that she had proper and independent
advice before executing the document in question
Mossammt Hosna Banu and others Vs. Keamat Ullah Malitha and
others, 18 BLD (AD) 10.
PARLIAMENTARY
PRIVILEGE
Parliamentary Privilege
The term
‘Parliamentary Privilege” is a difficult term for an exact definition. Proof
Dicey in his introduction to the study of the Law of Constitution says:
“Nothing is
harder to define than the extent of the indefinite powers or rights possessed
by either House of Parliament under the head of privilege or law and custom of
Parliament.”:
Parliamentary
privilege is indeed, to use the language of Reddish, which has been quoted by
May in his “Parliamentary Practice”:
“The sum of
the fundamental rights of the House and of its individual members as against
the prerogatives of the Crown, the authority of the ordinary courts of law and
the special rights of the House of Lords”
The
resignation letters submitted by 147 members of the Parliament to the
respondent No. 1, The Speaker is outside the ambit of Article 78(1). of our
Constitution inasmuch as the act of submission of resignation to the Speaker by
the members of Parliament though in connection with the business of the House,
yet it does not from a part of the proceeding of the Parliament within the
meaning of Article. 78(1) of the Constitution of Bangladesh and that too is one
stage ahead of the business of the Parliament. That stage will reach the moment
‘the Speaker shall bring the fact to the notice of the House, if it is in
session in accordance with the provision of Rule 178(3) of the Rules of the
Procedure of Parliament of the People’s Republic of Bangladesh.
From a close
analysis of the decisions cited at the Bar it is manifestly clear that the
action brought before the court in those cases had their origin in the
proceeding-in parliament and were immune from judicial scrutiny and were
protected “parliamentary privileges”. In the instant case, submission of
resignation in masse (en bloc) to the Speaker is not immune from judicial
review. . Under clause (2) of Article 67 of the Constitution a member of the
Parliament may resign his seat by writing under his hand addressed to the
Speaker of the Parliament. The expression “addressed to the Speaker” used in
clause (2) of Article 67 has no protection of Article 78(1) of the Constitution
inasmuch as resignation letters submitted to the Speaker does not fall within
the ambit of the expression “proceeding of parliament” as envisaged in Article
78(1) of the Constitution. The High Court Division held that it committed no
mistake in issuing Rules in the Writ Petitions nor has it transgressed upon its
jurisdiction conferred under Article 102 (2) (a) (ii) and (i) less of the
Constitution and it did not come in conflict with the Parliament by invading
the domain of Parliamentary Privilege” or stretching its sleeve to any
proceeding of the Parliament. Thus, the contention raised at the Bar to oust
the jurisdiction of the High Court Division is the result of misconceived idea
about the constitutional provisions of this Article and accordingly, it fails.
Md. Raufique Hossain Vs. The Speaker, Bangladesh Parliament and
others, 15 BLD (HCD) 383.
PARTITION
SUIT
Partition suit—Buy-out
If an
application under Section 4 of the Partition Act is filed to buy-out a stranger
purchaser after an inordinate delay from the date of the purchase, then the
applicant himself may suffer. When an applicant’s prayer is allowed under
section 4 of Partition Act, it involves a kind of forced sale for the stranger
purchaser. Hence,, the court would in equity determine the valuation of the
transferred share on the date of filing of the application for permission to
.purchase the share of the stranger purchaser.
Sayesta Bibi and others Vs. Juma Sha and others, 13 BLD (XD)168
Partition simpliciter
Plaintiffs,
not in exclusive possession cannot get partition simplicity. They must have to
pray for declaration of title before succeeding in getting partition.
Md. Usman Mia and others Vs. Sunu Mia and others, 13 BLD (HCD) 621.
‘Partition Suit
In a suit
for partition the Court will no doubt consider the question of title of the
contending parties in some details but it cannot resolve complicated questions
of the arising from the pleadings of the parties a simple suit for partition.
Rezaul Karim and others Vs. Md. Shamsuzzoha and others, 17 BLD
(AD) 179
Partition Suit
A partition
suit should embrace all the joint properties of the parties concerned is indeed
a rule of convenience. If properties are left out in a partition suit it brooks
further litigation. It is true that this rule is relaxable. But there are
specific situations calling for relaxation. They are generally (a) where
different portions of the property lie in different jurisdictions, or (b) when
some portion of the property is at the time incapable of partition, or (c) when
the property from its nature is impartible, or (d) when the property is held
jointly with strangers who cannot be joined as parties to a general suit for
partition, or (e) where co-tenamts, by natural agreement, decide to make
partition of part of the joint property retaining the rest in common.
Nurul Afsar Vs. Rafiqul Ahmed, 19 BLD (AD) 240.
Partition Suit—Necessary Party
Since this
is a suit for partition it was proper on the part of the learned courts below
to give an opportunity to the plaintiff to implead Shahabuddin as a party in
the suit and on the failure of the plaintiff to implead him as party the suit
could be dismissed on the ground of maintainability. Accordingly the suit is
sent back on remand to the trial court for affording an opportunity to the
plaintiff to implead the Shahabuddin as defendant in the suit.
Sabed Ali Howlader and ors. Vs Abdul Barek and ors., 20 BLD (HCD)
136.
Partition suit
After
recording and drawing up a preliminary decree in a suit for partition, there
will be no abatement on the death of a defendant and the legal heirs of the
deceased defendant can brought on record at any time for effecting proper
allotment of shares.
Arabinda Das Vs Sreemati Sura Bala Das and others, 20 BLD (HCD) 320.
Partition suit
Suit for partition
A simple
suit for partition may be filed with a fixed court fee under Article XVII (VA)
of Schedule-11 of the Court Fes Act. But when a suit is filed for partition and
for recovery of possession, then the plaintiff has to pay ad-valorem court fee
on the value of his share of the suit property under Section 7(VIA) of the
‘Court-Fees Act. When the plaintiffs Suit is for declaration of his title and
partition then also he is required to pay advalorem court fee on his share of
the suit property—Court Fees Act, 1870 (VII of 1870).
Mahmoodul Huq and others Vs. Nowab Ali Chowdhury and ors, 16 BLD
(HCD) 195.
Partition suit
Suit for partition and declaration of title
A stranger
purchaser of a portion of an undivided property from a co-sharer cannot claim
declaration of title simpliciter unless he claims a partition for determination
of his share in the property. Hence, although his suit for declaration of title
has been dismissed, he is free to agitate the question of his entitlement to a
specific portion of the property in a properly framed partition suit.
Mrs. Sabiha Khanam Vs. Jaitun Bibi alias Mrs. Syed Moazzem Hossain
being dead her heirs: Syed Nurul Hasan and others, 18 BLD (AD) 95.
PAST
MAINTENANCE
Although
there is no provision for past maintenance in the Family Courts Ordinance, 1985
or the Muslim Family Laws Ordinance, 1961 the Court can allow past maintenance
in appropriate cases—Family Courts Ordinance, 1985 (XVIII of 1985) and Muslim
Family Laws Ordinance, 1961 (VIII of 1961).
Md. Sirajul Islam Vs. Mosammat Helana Be gum and others, 16 BLD
(HCD)477
Past Maintenance
Although the
traditional view is that a Muslim wife is not entitled to a decree for past
maintenance in the absence of any specific agreement, the latest position of
Sunni Law prevalent in the subcontinent is that she is entitled to past
maintenance even if her claim is not based on any specific agreement. It is now
well-settled that a Muslim wife can claim past maintenance not only for herself
but also for her minor children living with her.
Jamila Khatun Vs. Rustom Au, 16 BLD (AD) 61.
PERMANENT INJUNCTION
Permanent Injunction
In a suit
for permanent injunction, the plaintiff is not required to strictly prove his
title. A prima facie title and possession in the subject-matter of the suit may
be sufficient for a decree—Specific Relief Act (I of 1877), Section-56.
Anwar Hossain Vs. Abdul Gafur and others, 14 BLD (HCD) 260.
Permanent injunction
A suit for
permanent injunction is contemplated in sections 53 and 54 of the Specific
Relief Act. For the grant of permanent injunction the court will have to find
the existence of a right in the plaintiff and its threatened violation by the
defendant. [Per Latifur Permanent injunction Rahman, J-delivering the
dissenting judgment].
Barada Sundari Paul and others Vs. The Assistant Custodian, Enemy
Property, Comilla and others, 15 BLD (AD) 95.
Permanent injunction
In a suit
for permanent injunction the question of title is incidentally relevant while
the factum of possession in the suit property is the main consideration before
the court.
Abul Hashem Dhali and others Vs. Md. idris Ban and others, 15 BLD (AD)
106.
Permanent injunction
In the
absence of any finding of the Courts below, on the basis of materials on
record, that the plaintiffs are in exclusive and specific possession in the
suit property, they are not entitled to a decree for permanent injunction
against co-sharers.
Abdus Samad Akand and ors Vs. Abdul Halim Mimi and ors, 17 BLD
(AD) 286.
Permanent Injunction
In a suit
for permanent injunction the plaintiff must prove his possession in the suit
property and only incidentally a prima facie title thereto. It is now
well-settled that if the plaintiff succeeds in proving his continuous and long
possession in the suit land, he is entitled to protect his possession by way of
permanent injunction even against the rightful owner Specific Relief Act, 1877(
1 of 1877), Section —54.
Kalayan Krishna Goswami Vs. Madhyapara High School and another, 15
BLD (HCD) 509.
Permanent Injunction
In a suit
for permanent injunction only the persons who held out threat of dispossession
to the plaintiff from the suit property are necessary parties and not others.
Mobarak All and ors. Vs. Kazi Azimuddin Ahmed and ors., 17BLD
(HCD) 49 /
Permanent injunction
In a suit
for permanent injunction the fact turn
of possession is of paramount importance and the question of title is only
incidentally looked into. The learned Courts below clearly erred in law in
placing unnecessary importance on the question of title with reference to
certain documents ignoring the vital question of possession and thereby misdirected
themselves to judge the case from a wrong angle of vision.
Satish Kanti Barua & ors. Vs. Samir Kanti Barua & ors., 19
BLD (HCD) 608.
Permanent injunction
Suit for permanent injunction
In a suit
for permanent injunction there is no scope to adjudicate upon the question of
title of the parties although the Court can incidentally go to the question of
title. The Court should be careful in making any observation touching the merit
of title of either parties.
Musammat Nurjahan Begum and ors. Vs Kamaluddin Ahmed, 21 BLD
(IICD) 538
Perpetual Injunction
In a suit
for perpetual injunction the plaintiffs shall have to prove the exclusive
possession in the land in order to get a decree, the Court may incidentally
enquire into the prima facie title of the parties, unless the possession of the
plaintiffs is clearly established by evidence the plaintiffs cannot have any
decree for perpetual injunction.
Mati Lal Karmakar and another Vs. Kalandar Talukder & anr,20
BLD(HCD) 186.
PERSONA
DESIGNATA
Persona designata
From a
consideration of the provisions of the Code as well as section 43 of the
Ordinance it appears that as the District Judge as contemplated under section
43 of the Ordinance is not a persona designata but a Court and as it is a Court
of civil nature, the provisions of the Code of Civil Procedure is very much
attracted in the instant case and accordingly the provisions of Order 41 Rule
19. of the Code is available of the respondents— Code of Civil Procedure, .1908
(V of 1908). Order XLI Rule 19, Waqf Ordinance, 1962 (I of 1962), Section—43
Aminul Haque Shah Chowdhury Vs. Abdul Wahab Shah Chowdhury, 19 BLD
(AD) 267.
Persona Designata
The Chairman
of the Labour Court as the authority to try offences under the..Payment of
Wages Act, is a persona designata and not a court. Any challenge to an order of
such authority by way a writ petition is maintainable—Constitution of
Bangladesh, 1972, Article—102(2)(ii).
Hayder Meah v. Authority appointed under section 15(1) of the
Payment of Wages Act, 1936 and Chairman, 1r Labour Court, Dhaka, and ors, 22
BLD (HCD) 244
PLACE OF
SUING
Place of suing
If no part
of the cause of action accrues at the place of the branch office of a Company
or Corporation, the mere fact that it has a branch office at the place will not
give the Court jurisdiction to act—Code of Civil Procedure, 1908 (Act V of
1908), Section 20 clause (c).
Khondaker Mahtabuddin Ahmed, Managing Director Vs. MIS. Matin Tea
and Trading Company, 14 BLD (AD) 58.
PLEADINGS
Pleadings
Clause (g)
has made it mandatory to include the relief in a plaint. A suit is generally
known or categorised by the relief prayed for in the plaint. A Court gives a
final adjudication upon the plaint by either granting or refusing such of the
relief as is established in the trial of the suit. The prayers or relief sought
for is, therefore, an important and integral part of the plaint—Code of Civil
Procedure 1908 (V of 1908),Order VII Rule 1(g).
Paul Reinhurt Limited and another v. Prime Textiles Spinning Mills
Ltd. and others, 22 BLD (HCD) 41.
Pleadings
The purpose
of pleadings is to pinpoint the matters of controversy between the contending
parties for enabling them to meet their respective claims. The fate of a suit
depends on the overall evidence and materials brought on record by the
parties—Code of Civil Procedure, 1908 (V of 1908), Order VI Rules 1 and 2.
Sonali Bank Vs. Mr. Hare Krishna Das and others, 16 BLD (HCD) 159.
PLENARY
CONSTITUTIONAL POWERS
From the
direction in the judgment it does not mean that the President or the Parliament
would be denuded of their plenary Constitutional powers but the recommendation
of Judicial Public Service Commission shall form the basis of their
consideration. That is what the judgment meant by the words “shall follow the
recommendation of the Constitution”.
Secretary, Ministry of Finance and others Vs Mr. Md. Masdar
Hossain and others, 21 BLD (AD) 126.
POLICY HOLDER
‘Policy
holder’ includes a person to whom the whole of the interest of the policyholder
in the policy is assigned once and for all, but it does not include an assignee
thereof whose interest in the policy is defeasible or for the time being
subject to any condition— Insurance Act, 1938 (IV of 1938), Section— 2(BD).
M/s Janata Insurance Vs. MIs. Islam Steel Mills Ltd., 21 BLD (HCD)
96.
POLLUTION
Urgent
preventive measures is overdue to halt sagging environmental pollution and
degradation of Dhaka city, one of the worst in the world, due to audible
vehicular sounds and emission of hazardous black smoke from faulty and arrogant
motor vehicles. Accordingly directions were given to enforce restrictions and
implement decisions of the respondents, and phase out 2 stroke 3
wheelers—Bangladesh Environment Conservation Act 1995 (I of 1995).
Dr. Mohiuddin Farooque v. Government of Bangladesh, 22 BLD (HCD)
345.
POLYGAMY
In view of
the fact that Muslim Jurists and Scholars are almost unanimous in taking the
view that in the context of the modern society it is virtually impossible to
treat wives justly and equally the Quranic sanction for taking a second wife
under specified conditions virtually amounts to a prohibition in doing so.
Viewed as such the High Court Division held that section 6 of the Ordinance is
repugnant to the principle of Islamic Law—Muslim Family Laws Ordinance,
1961(VIII of 1961), Section—6.
Jesmin Sultana Vs. Mohammad Elias, 17 BLD (HCD) 4.
Polygamy
The
discussion on polygamy in Islam and recommendation thereon as accorded in the impugned
judgment should be taken to be deleted lest it may create confusion in the mind
of the subordinate Courts and the people at large—Muslim Family Law Ordinance,
1961 (VIII of 1961), Section—6
Md. Elias Vs. Jesmin Sultana, 19 BLD (AD) 122.
POWER OF
ATTORNEY
With the
death of the executor of a power of attorney, the power becomes void and
ineffective and the attorney loses all his authority to act under it.
S.M, Anisur Rahman Vs. Bangladesh and others, 16 BLD (HCD) 299.
Termination of agency—Power of attorney
On the death
of either the principal or the attorney the relationship between the parties
ceases to exist. On the death of the attorney nothing devolves upon his heirs
in respect of the rights of the principal in a pending proceeding and as such
there is no necessity for their substitution—Contract Act, 1872 (IX of 1872),
Section—20 1.
Md. Abdur Rahman Vs. Md. lqbal Ahmed and others, 17 BLD (AD) 175.
Power of attorney
Order 3 Rule
2(A) of the Code provides that the recognised agent of parties by whom
appearance and acts may be made or done includes holding power of attorney but
such power of attorney must be executed according to the provision of section
85 of the Act otherwise a person holding a power of attorney is not legally
permitted to represent his principal under Order 3 Rule 2(A) of the Code.
In the
instant case it has been found that the power of attorney in question has not
been executed in terms of section 85 of the Act and as such the petitioner is
not entitled to the benefit of Order 3 Rule 2(A) of the Code— Code of Civil
Procedure, 1908 (V of 1908), Order III Rule 2(A), Evidence Act, 1872 (I of
1872), Section—85.
Ramesh Chandra Chowdhury @ Das Vs. Naresh Chandra Das @ Chowdhury,
20 BLD (HCD) 35
POWER OF
CMLA
Authority of the CMLA
The legal
dispensation under which the C.M.L.A. was running the country and the
administration provided unlimited power to him; nothing was beyond his
jurisdiction and further no Court could declare his order to be without
jurisdiction,
Mr. Mujibur Rahman, Ex-Collector of Customs Vs. The Garment of
Bangladesh anti Other, 13 BLD (HCD) 54.
Power of the CMLA
The C.M.L.A.
did not lack any authority to pass any order and further under the Constitution
(Seventh Amendment) Act, 1986, all orders etc. of the C.M.L. A. made or
purported to have been made in exercise of the powers derived from the
proclamations shall be deemed to have been validly made shall not be questioned
in or before any Court on any ground whatsoever.
Mr. Mujibur Rahman, Ex-Collector of Customs Vs. The Government of
Bangladesh and others, 13 BLD (AD) 54.
Power of the delegator
Once the
delegator has abdicted himself wholly of his powers the same can no longer be
shared with the delegatee unless the authority of the delegatee is cancelled
and it is duly published in the official gazette, escaped the notice of the
learned Advocate concerned and it could not be placed for consideration at the
leave stage.
Mr. Mujibur Rahman, Ex-Collector of Customs Vs. The Government of
Bangladesh and others, 13 BLD (AD) 54.
PRACTICE AND PROCEDURE
Courts order
Where under
an order of a Court of law, a vast multitude of people will be deprived of
benefit of utility services because of an order passed for benefit of a few
such order should not be upheld.
Chowmuhani Pourashava Vs. Delta Jute Mills Ltd., 13 BLD (HCD) 256.
Hazira and Time Petition
Practice of
filing hazira of witnesses on the date of peremptory hearing of Suit and
subsequently filing Petition for time, on the ground of engagement in another
court and non-appearance before the court is nothing but professional
misconduct of the Advocate.
Nurul Islam Palan and others Vs. Haraz Ali Palan and others, 13
BLD (HCD) 625.
Responsibility of a Counsel
A Counsel is
responsible for representing his client’s case in Court and ordinarily his
clerk’s failure to inform him about the date of hearing of the case will not be
regarded as a ground for his non-appearance. There may be special circumstances
indicating the learned Counsel’s total dependence on his clerk because of his
illness or such other good reason when a clerk’s failure to inform the date of
hearing to the Counsel may amount to be a sufficient cause for the Counsel’s
non- appearance at the time of the hearing.
Alfu Miah and others Vs. Government of Bangladesh and others, 13
BLD(AD)181
Court’s Order for making parties-
Objection: When to be raised?
After the
Miscellaneous case under Order 9 Rule 13 C.P.C. was restored under Section 151
C.P.C. the appellants raised objection that some heirs and heiresses of the
deceased plaintiff were not made parties to the case as a result of which it
had abated. To meet this objection respondents filed an application. with copy
thereof served on the Advocate of the appellants, and their prayer was allowed.
The failure of the appellants to take any step against that order amounted to
acceptance of the same by them and as such the appellants cannot be allowed to
make any grievance out of it now.
Mahmuda Khatun and others Vs. Abul Younus Talukder being dead his
heirs: I (a) Mrs. Yunus Ali Talukder and others, 16 BLD (AD) 113.
Ref: Prodip
Das and others Vs. Kazal Das Sharma and others, 44 DLR (AD) 1;— Cited.
Practice and procedure
When a
Single Company Judge of the High Court Division exercises power under Section
38 of the Companies Act, an appeal from its decision has to be taken by way of
leave to the Appellate Division under Article 103 (1) of the Constitution. No
appeal lies to the Division Bench of the High Court Division—Constitution of
Bangladesh, 1972, Article —103(1).
Moqbul Ahmed and another Vs. Ahmed Impex (Pvt.) Ltd. and anr, 16
BLD (AD) 133.
Practice and Procedure
The order of
the District Judge setting aside the impugned ex-parte decree without recording
any finding as to whether the facts alleged by the defendant in his application
under Order 37 Rule 4 C.P.C. constitute special circumstances justifying
setting aside the ex-parte decree and giving the defendant leave to appear and
to defend the suit is not maintainable in law. The impugned order being not at
all a speaking order justifying action under Order 37 Rule 4 C.P.C. cannot also
be supported. The impugned order is set aside and the learned District Judge is
directed to re-hear the matter and to write out a proper judgment in accordance
with law—Code of Civil Procedure, 1908 (V of 1908), Order XXXVII Rules 2 and 4.
Dure Shahwar Begum Vs. All Ahmed Patwari, 16 BLD (HCD) 100.
Practice and Procedure
Appellate
Division does not usually interfere with an interim order but since the passing
of the interim order in the writ jurisdiction is a part of a constitutional
exercise, the Appellate Division will interfere in appropriate cases.
The Commissioner of Customs, Chittagong Vs. Giasuddin Chowdhury
and another, 17 BLD (AD) 270.
Practice and Procedure
As a general
rule interim orders made by the High Court Division in its discretion in a
pending matter are not interfered with by the Appellate Division
Alhaj S.M.A. Taher Chowdhury and ors. Vs. A.K.M. Ashequr Rahman
and ors., 18 BLD (AD) 215.
Practice and Procedure—Specific denial
Rule 5 of
Order VIII of the Code provides that assertion of facts made in the plaint if not
denied specifically or by necessary implification shall be deemed to be have
been admitted. The plaintiff in addition to making clear statements in the
plaint that the original tenant Lakshan Mondal had died in this country
leaving him
as his only heir and the plaintiff led evidence to prove the said assertions
and there being no contrary evidence on record, the learned Courts below erred
in law in dismissing the suit on hypothetical assumptions ignoring the positive
evidence on record— Code of Civil Procedure, 1908 (V of 1908), Order VIII Rule
15.
Maran Mondal being dead his heirs (i) Dayal Chandra Mondal and
ors. Vs. The Assistant Custodian of Vested and Non-Resident Properties (L &
B) and ADC (Rev), Dhaka and ors., 18 BLD (HCD) 21.
Substituted service
When the
court decides to effect substituted service under this Rule, it must direct
that the summons be served by affixing a copy thereof in some conspicuous place
in the Courthouse and also in some conspicuous part of the last known residence
on the defendant on the place where he carried on business or personally worked
for gain. This is obviously for wide publicity. When these mandatory
requirements of law are not satisfied, there can be no proper service of
summons—Code of Civil Procedure, 1908 (V of 1908), Order 5 Rule 20.
China Bala Saha Vs. Abdul Ban and others, 15 BLD (HCD) 5.
Suit against dead persons
The suit was
filed during the life time of all the partners of the firm, but defendant-
respondent Ni3s. 2 to 4 and 6 died during the pendency of the suit. Provisions
of sections 42 and 45 of the Act clearly indicate that, when a person or two or
more persons made a joint promise to two or more persons they are jointly
liable for the performance of the same and the right to claim performance of
the same rests as between him and them during their life time and if any of
them died their representative must be brought on record to enable them to
perform the contract. But in the instant case admittedly defendant Nos. 2 to 4
and 6, partners of firm, died during pendency of the suit before the trial
court and no step ‘was taken for their substitution in the suit. Therefore, the
suit must fail as it cannot be against dead ‘persons—Contract Act, 1872 (IX
of.1872) Sections—42 and 45.
Pubali Bank ‘lid. Vs. Mis. Sultana Oil Mills and Soaf Factory, 19
BLD (HCD) 249.
Practice and Procedure
As a matter
‘of long standing practice in the High Court Division specially in case of Writ
petition, a person other than the writ petitioner V himself has to swear the V
affidavit in support of the writ petition on behalf of the Writ petitioner only
with the leave of the Court, provided he can satisfy the Court by producing
either the letter of authority or any power of attorney supporting his
authority to swear the affidavit.
Bangladesh Vs. Anwar Ahmed and others, 18 BLD (AD) 282.
Practice and Procedure
The whole
relief was granted to the writ- I petitioner without issuing any Rule upon the respondents
which is not only per se illegal but perverse in the sense that it militates
against common sense and natural justice.
Md. Abdus Sobhan and another Vs. Md. Abdus Sattar and others, 19 BLD
(AD) 2.
Practice and Procedure
The High
Court Division dealt with the matter very casually as if it was disposing of a
Lawazima matter without the need of any assistance. This was never the practice
of a superior court which ever acted in such a lighthearted way in a serious
matter like this nor should it ever do it for the sake of. if not anything
else, its own credibility.
Md. Hefzur Rahman’s. Shamsun Nahar Begum and another, 19 BLD (AD)
27.
Practice and Procedure
It is very
surprising that the High Court Division enunciated a wrong proposition of law
without entering into the merit, of the case. This is not only illegal but also
not a proper exercise of jurisdiction vested in the Court itself.
Latifa Akhter and ors Vs. The State and another, 19 BLD (AD) 20.
Practice and Procedure
The
Appellate Division is loathe to hear a petitioner who has neglected to appear
before the High Court Division inspite of opportunities offered.
Dill Mohammad Vs. Abdul Motaleb Khan and another, 19 BLD (AD) 131.
Practice and Procedure
Appellate
Division does not encourage making of submission which was not made before the
High Court Division and which for its resolution requires examination of facts
by the Appellate Division.
Miah Hossain and others Vs. The Stated, 19 BLD (AD) 299.
Practice and Procedure
Judicial
propriety and norm do not approve of passing of order by a Division Bench when
there was a pending order by another Division Bench.
Novartis Foundations for Sustainable Development Vs R K Ruma,
General Secretary, Bikash & ors., 20 BLD (AD) 229.
Practice and procedure
A party
should not be heard on a ground on which leave was not granted, although there
may be exceptions in the exigencies of justice.
Md. Sanaullah Khan Vs. Safura Khatun & ors., 20 BLD (AD) 77.
Ref: Idris
Shaikh Vs. Jilamon Bewa and others, 5ODLR(AD)161; John F. Brownlee V. Vivian
MacMillan. AIR 1940 PC 219 and 1,975 SCMR 16—Cited.
Practice and Procedure
Whenever any
party to a suit or proceeding presents an application either for temporary
injunction or for an order of attachment before judgment or for appointment of
receiver or any other matter,’ the learned Judges o the subordinate, judiciary’
does hot record any positive order either allowing or rejecting the same which
is required to record.
Sirajul Islam Chowdhury Trawlers Ltd. Vs. Sirajul Islam Chowdhury,
20 BLD (HCD) 347.
Practice and Procedure
Judicial
propriety and norm do not approve of passing of order by a Division Bench when
there was a’ pending order by another Division Bench.
Novartis Foundations for Sustainable Development Vs R K Ruma,
General Secretary, BIKASH & ors., 20 BLD (AD) 229.
Issuance of Summons
The
privilege of a litigant to take out summons to persons whose attendance is
considered necessary is subject to the control and satisfaction of the Court.
The Court has every right to refuse such a prayer if it is found to be not
bonafide or otherwise it is considered as an abuse, of the process of the
Court—Code of Civil Procedure, 1908 (V of 1908), Order XVI Rule I.
Mansur Ali Sikder Vs. Kanailal Benarjee and others, 17 BLD (AD)
326.
Practice and Procedure—Larger Bench
The Division
Bench of the High Court Division after perusing the application filed by
respondent Nos. 3,4 and 5 for constitution of a larger bench on the ground that
the petitions involves important’ and complicated questions of interpretation
of several Articles of the Constitution of the People’s Republic of Bangladesh
and hearing the learned Advocate’ of the applicants, the learned Attorney
General and the petitioner passed the’ following order: ‘‘We have perused the
‘two petitions and’ also heard the’ submission of the learned Advocates. As we
feel that .these petitioners need to be heard by a Special Bench, we send these
to the learned Chief Justice for his kind order.”
The learned
Chief Justice by his order dated 29.1.1995 constituted the larger bench
comprising Mr. Justice A.M.Mahmudur Rahman, Mr. Justice Kazi Ebadul Hoque and
Mr. Justice Mohammad Abdul Karim, and directed them “to hear and dispose the
matter”
Md. ,Raufique Hossain Vs The Speaker, Bangladesh Parliament and
others, 15 BLD (HD) 383.
Ref: 1951
All 228; 1975(SC) 2095; 1983 (SC) 130; 1987 (SC) 579; 43 DLR(AD) 126; 1965 All
536; 1962 All 606; 1963 Mad 132; 1961 (SC) 41; 1964 Kerala 194; 1978 (SC) 694;
1969(SC) 903; 1954 Cal 203; 1957 (SC)354; 1978 (SC) 597; In Re Vs. A.1.R. 1953
(Mad) 94; PLD 1993 (SC) 473; 1994 Del. 242; In re SIDEBOTHAM, (1880) 14 Ch. D.
458; 17 DLR (Dac) 191; PLD 1982 (SC) .303; 42 DLR (AD) 49; B.S.C.R. (Vol. I and
11) 185: 29 DLR 188; A.I.R. 1967 (SC) 1643; 7 DLR (FC) 291 at 330; 46 DLR (AD) 192;
1 LDLR(SC) 140; 27 DLR (AD) 11; 41 DLR(AD) 165; PLD 1958(SC) 397; S.C. A.I.R.
1982 (SC) 149; A.I.R. 1988(A.P.)69; Ex Parte Alber Levitt, 302 U.S. 633; 1962
All 606; 1930 Lah 497; A.I.R. 1966(SC) 1987; 1960(3) SCR 887 (9(’)5); 38 DLR
(AD) 172; Canada Sugar Refining C.Vs. R. ‘(1898) A.C. 735(74); 34DLR 222; 38
DLR(AD) 41; 39 DLR(AD) 1; 1993 (SC) 873; AIR. 1952 (T.C.) 166; A.I.R. 1964
Kerala 194; A.I.R. 1965(All) 536; 18 DLR (SC)62 = PLD 1966 (SC) 105; 22 DLR
(SC) 203; PLD 1958 S.C. 397; 15 DLR (SC) 389 PLD 1963 (SC) 704; 12 Q.B.D. 273;
PLD 1976 (SC) 504; 18 DLR (SC) 69 = PLD 1963 (SC) 486; (1974) The Weekly Law
Reports, 208—Cited.
Practice and Procedure
Where any
period is fixed or granted by the court for doing any act prescribed or allowed
by this Code, the court may, in its discretion from time to time, enlarge such
period even though the period originally fixed or granted may have expired—Code
of Civil Procedure 1908 (V of 1908), Section—148
Mosammat Wajeda Khatun and other v. Mosammat Saonatun Bewa, 22 BLD
(HCD) 560.
Practice and Procedure
The suit
framed under section 9 of the Act is title suit, though, summary in nature, But
an application under Order XXI Rule 100 of the Code takes the form of
miscellaneous proceeding. There was no scope of converting the suit under
section 9 of the Act into a miscellaneous proceeding under Order XXI Rule 100
of the Code. So the question of converting the suit under section 9 of the Act
into a miscellaneous proceeding under Order 21 Rule 100 of the Code does not at
all arise— Code of Civil Procedure, 1908 (V of 1908), Order XXI Rules 100 and
101.
Delwar Hossain Khan Vs. Amzad Hossain & ors., 19 BLD (HCD) 523.
Practice and Procedure—Court to inform party
Where a
person is no longer the appointed advocate of a party, it is incumbent upon the
court of the subordinate judge to communicate an order to the parties about the
arrival of the records of the case after restoration by the High Court
Division—Code of Civil Procedure 1908 (V of 1908), Order III Rule 4(2).
Makbul Ahmed, being dead, his heirs, and others v. Mohammedullah
and others, 22 BLD (HCD) 120.
Practice and Procedure—Courts mistake
When an
injury is caused to a party due to any mistake or default committed by a court
or its officers there are high authorities laying down that in circumstances of
this nature, it is not only right but the duty of the court to correct its own
mistake—Code of Civil Procedure, 1908 (V of 1908), Section—151
Md. Habibur Rahman and others Vs Md. Abdur Rashid and others, 21
BLD (HCD) 227.
Practice and Procedure—Cross petition for leave to Appeal
There is no
provision for filing cross petition for leave to appeal before the Appellate
Division.
Bangladesh, represented by the Secretary, Ministry of Land
Administration Vs. Subash Chandra Das and others, 15 BLD (AD) 17.
Practice and Procedure—Interest in Money Decree
Where in a
money decree the court is silent regarding payment of interest either on the
principal sum adjudged pendente lite or to any interest for any period prior to
the institution of the suit, with further interest from the date of the decree
till realisation, it shall be presumed that the court has refused such
interest—Code of Civil Procedure, 1908 (Act V of 1908), Section—34(1(2).
Kadam Rosul Silicate Works and others Vs. Sonali Bank, 14 BLD (AD)
239.
PRE-EMPTION
Co-sharer
If a
pre-emptee is not a co-sharer at the time of transfer or at the time of
institution of pre-emption proceeding and if he becomes a co-sharer during
pendency of pre-emption proceeding, he does not becomes a transferee to a
co-sharer either at the time of transfer or at the time of institution of the
Pre-emption proceeding—Code of Civil Procedure, 1908(Act V of 1908),
Section—141.
Abdul Baten Vs. Abdul Latif Sheikh and others 13 BLD (AD) 56.
Pre-emption
Section 96
of the state Acquisition and Tenancy Act is a beneficial legislation intended
for the convenience of the co-sharer of a holding of land for prevention of
fragmentation of such holdings and also for the convenience of tenants holding
law contiguous to the land transferred. But it is a cologne transfer of
property—State Acquisition and Tenancy Act, 1950 (Act XXVIII of 1951),
Section—96.
Golchera Khatun being dead, her heirs: Akhtar Hossain and others
Vs. Musammat, Sayera Khatoon 13 BLD (AD) 41.
Pre-emption
Any
provision of law barring a claim of pre-emption, must be strictly construed.
Golchera Khatun being dead, her heirs: Akhtar Hossain and others
Vs. Musammat Sayera Khatoon, 13 BLD (AD) 41.
Pre-emption
In the
absence of conclusive evidence of waiver to operate against him the pre-emptor
cannot be deprived of his right to preemption—State Acquisition and Tenancy
Act, Section—96.
Md. Ajmat Ali Vs. Jainaluddin and others, 14 BLD (HCD) 563.
Pre-emption
The
provision of Section 141 C.P.C is applicable to a proceeding under Section 96
of the State Acquisition and Tenancy Act, 1950, although it is not a suit
proper.
Shanti Ranjan Baroi and another Vs. Sree Jogesh Baroi and another,
14 BLD (HCD) 121.
Pre-emption
Proceedings
mentioned in section 141 C.P.C. have reference to original cases in the nature
of suits and not to other cases which do not originate in themselves but arise
out of suits or other proceedings. A proceeding under section 144 C.P.C. is not
an original proceeding.
Ibrahim Munshi and others Vs. Tamizuddin Bhuiyan, 14 BLD (HCD) 527.
Pre-emption
Acquiesce
Whether acquiescence
defeats the right of pre-emption-When the pre-emptor took an active part in
bringing about the disputed transaction and himself negotiated the price, the
conduct of the pre-emptor is sufficient to give rise to waiver and
acquiescence—State Acquisition and Tenancy Act, 1950 (XXIII of 1951),
Section-96.
Akhlasur Rahman and others Vs Safarullah and others, 14 BLD (AD) 20.
Pre-emption
When the
application for pre-emption was made in time, subsequent amendment for
impleading left-out necessary parties after the expiry of the period of
limitation is permissible in law State Acquisition and Tenancy Act, 1950
(XXVIII of 1951) Section -96.
Most. Khodeza Begum Vs. Md. Illias Mia and others, 14 BLD(HCD)388
Accrual of the right of pre-emption
The date of
accrual of the right of preemption is not the date of the execution or the date
of presentation for registration of the deed of sale but it is the date on
which it is registered under Section 60 of the Registration Act.
Dr. Ibrahim Hossain Vs. Mosammat Abeda Khatun and ors, 14 BLD
(HCD) 346.
Preemption
Right of
pre-emption is a statutory right and it cannot be taken away by mere verbal
assurance of the person having such right unless waiver and acquiescence are
established—State Acquisition and Tenancy Act, 1950 (XXIII of 1951),
Section—96.
Fazaruddin Vs. Maijuddin and others, 14 BLD (AD) 29.
Pre-emption
A finding of
fact in respect of the preemptors date of knowledge arrived at by the lower
appellate court on assessment of evidence and the same having been affirmed, by
the High Court Division calls for no interference by the Appellate
Division—State Acquisition and Tenancy Act, 1950 (XXIII of 195 1), Section—96.
Amena Khatun Vs. Abdul Motaleb and others, 14 BLD (AD) 68.
Pre-emption
Co-tenancy is preferable to Khatians and not to plot numbers
The
pre-emptor sought for pre-emption in respect of some land in plot No. 991 under
S.A. Khatian No. 189 basing her claim on her earlier purchase from the same
plot which appertained to S.A. Khatian No. 179. As the Khatians are different,
the pre-emptor is not a co-sharer in the case holding.
Mosammat Fatema Bibi Vs. Sree Manik Lal Somaddar, 16 BLD(AD)129
Pre-emption
Statutory deposit
Section
96(3) of the Act requires the preemptor to make the statutory deposit of the consideration
money with compensation at the time of filing the application for preemption.
The trial Court was thus wrong in accepting a short deposit. But in view of the
indolence and repeated laches of the petitioner and other attending facts the
Appellate Division refused to interfere—State Acquisition and Tenancy Act, 1950
(XXVIII of 1951), Section—96(3).
Md. Mojibar Rahim Mondal Vs. Khoteza Khatoon and others, 16 BLD (AD)
281.
Pre-emption
Consanguinity
A sister’s
son or a cousin sister’s son is a relation by consanguinity within the three
degrees of the donor.
Shamsul Islam and others. Vs. Badiar Zaman alias Bablu and
another, 15 BLD (AD) 243.
Pre-emption
Reconveyance
made during the pendency of a pre-emption proceeding cannot take away the right
of pre-emption of a cosharer—State Acquisition and Tenancy Act, 1950 (XXVIII of
1951), Section -96
Khorshed Ali and another Vs. Aftabuddin and others, 16 BLD(HCD)1
Pre-emption
Pre-emption
is a kind of purchase in preference according to category. If pre-emption is
allowed in respect of a fictitious transfers it will illegally affect the share
and interest of the real co-sharers, which cannot be allowed by a Court of
law—State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), Section—96.
Md. Solaiman Au Sheikh and ors. Vs. Abu Bakar Siddique Sheikh and
others, 17 BLD (HCD) 444
Pre-emption
Clause (a)
of sub-section 10 of Section 96 of the Act stands as a bar against the pre-emptor
for getting an order of against the preemptee, who acquired the status of a co-sharer
by way of inheritance before the deed of transfer under preemption was
registered under section 60 of the Registration Act—State Acquisition and
Tenancy Act. 1950 (XXVIII of 1951), Section—96(10)(a).
Abdul Malek Majhee Vs. Apser Au Howlader and others, 17 BLD (HCD)
522
Pre-emption
Homestead
outside Municipal area—Pre-emptible under section 96 of the Act.
The transfer
of a homestead land by a raiyat beyond municipal area is pre-emptible under
section 96 of the S.A.T. Act and not under section 24 of the N.A.T. Act—State
Acquisition and Tenancy Act, 1950 (XXVIII of 1951), Section—96.
Mantu Faraji alias Jamal Faraji and ors. Vs. Mahiuddin Khan, 17
BLD (HCD) 600.
Pre-emption
Knowledge—burden of proof
When a
pre-emptor seeks to establish his right of pre-emption after a long lapse of
time a heavy duty is cast upon him to prove his alleged knowledge about the
impugned sale by most convincing evidence so as to circumvent the apparent bar
of limitation—State Acquisition and Tenancy Act, 1950 (XXVIII of 1951),
Section—96(1).
Habibur Rahman alias Md. Habibar Rahman Vs. Mobarak All Ran and
others, 1 7BLD (HCD) 637
Pre-emption
Only a
bonafide reconveyance of the case land by which the disputed land has actually
gone back to the original vendor may stand as a bar against pre-emption but a.
colourable reconveyance cannot defeat the right of preemption. The principle of
law enunciated in the case of Shafi Khan Vs. Monnuzan Hossain and ors negatives
the legal incidence of the erroneous view taken in the case of Abbas Ali Khan
Vs. Osman Gani– State Acquisition and Tenancy Act, 1950 (XXVIII of 1951),
Section—96.
Abdul Mannan Mollah and ors. Vs. Md. Abid Ali Patwari and ors., 18
BLD (HCD) 397.
Pre-emption
After State
Acquisition and Tenancy Act came in 1950 the owners and purchasers of all kind
of lands have become direct tenants under the Government. The pre-emptor is
being co-sharer and the purchaser, being stranger, case land being part of
holding that is portion of a compact land, although there is no khatian number or
plot number of the transferred land, it constitutes a part of an agricultural
holding according to section 96(1) and section 2(13) of the Act—State
Acquisition and Tenancy Act 1950 (XXVIII of 1951), Section—2(13), 96(1).
Abdul Jabber and ors. Vs. Md. Mohammad Sekender and ors., 19 BLD (HCD)
83.
Pre-emption
Pre-emption Proceeding—Necessary Parties
In a
preemption proceeding the necessary parties may be added at any point of time
after institution of the suit but before the hearing of the same—State Acquisition
and Tenancy Act, 1950 (XXVIII of 1951), Section— 96, Code of Civil Procedure,
1908 (V of 1908), Order I Rule 10.
Nizam Sheikh
and others Vs. Alauddin Sheikh and others, 19 BLD (HCD) 197.
Pre-emption
Pre-emption—Subsequent re-conveyance not to defeat pre-emption
Acquisition
of title takes effect from the date of execution of the sale deed and not from
the date of its registration. With the sale the vendor loses all his interests
in the property and he is left with no interest therein to encumber the sale by
a subsequent agreement for re-conveyance. A colourable reconveyance cannot
defeat the right of pre-emption— State Acquisition and Tenancy Act, 1950 (VIII
of 1951), Section—96.
Captain Mohd. Lutfar Rahman. Vs. Mohd. Abu Taher & ors., 21
BLD (HCD) 334.
Pre-emption
Where there
are sufficient materials on records for determining the improvement cost, it
will be unnecessary and only time- consuming to send back the case on remand to
the trial court for the purpose of determination of the improvement cost.
Abul Kashem Gazi & ors. Vs Sheikh Nazrul Islam & ors., 21
BLD (HCD) 244.
Pre-emption
Order 24(3)
of the Non-Agricultural Tenancy Act, 1949, appears to be a prima- fade bar
against the pre-emptees claim for improvement cost for any improvement made after
receiving notice of the pre-emption case. He can succeed in his claim only when
he satisfactorily proves that he made the alleged improvement bonafide for the
beneficial development of the case property—NonAgricultural Tenancy Act,
1949(XXIII of 1949), Section—24(3).
Md. Belayet Hossain Vs. Shah Alam Parvez & ors., 19 BLD (HCD)
359.
Pre-emption
Testimony of
a co-sharer and witnesses as to the date of the knowledge of the transfer of a
portion or share of a holding of a raiyat should be considered in determining
whether an application for pre-emption under section 96(1) had been filed
within four months of the date of the knowledge of the transfer, and such an
application should not be dismissed on the ground that the petitioner did not
ask the transferor if he had transferred the case land or other lands—State
Acquisition and Tenancy Act, 1950(VIII of 1951), Section— 96.
Kuleshar Barman alias Kakaru Barman v. Sree Naresh Chandra Barman
and others, 21 BLD (HCD) 597.
Pre-emption
Pre-emptors
are required to establish a definite and distinct case, and not a prima facie’
case of being co-sharers of the land sought to be pre-empted—Non-agricultural
Tenancy Act 1949, Section—24
Hiran Chandra Deyi. Md. Abdul Quyum and others, 22 BLD (AD) 128.
PRESUMPTION
Presumption of a registered document
A registered
document, carries with it a presumption of validity and that presumption is
reputable and after giving due opportunities to parties concerned the same can
be rebutted.
Haji SK. Md. Lutfur Rahman Vs. Court of Settlement, Bangladesh
Abandoned Buildings and another, 13 BLD (AD) 114.
PRINCIPLE OF
FAIRNESS
Principle of fairness in Government action
When there
is a concluded contract in exercise of an international obligation of, the
Government and the contract is partly performed, the principle of fairness in
Government action comes into play and it cannot be allowed to play the role of
a private litigant driving the aggrieved party to sue for compensation.
Bangladesh Inland Water Transport Corporation Vs. Birds Bangladesh
Agencies Ltd. and others, 15 BLD (AD) 44.
Principle of fairness
The
principle of fairness in Government action requires that the government
functionaries must act according to law and must perform their duties in good
faith to satisfy the test of public accountability and acceptance.
Mrs. Lalima Begum and another Vs. The Chairman, Court of
Settlement, 1st Court, Dhaka and anr, 17 BLD (HCD) 270
PRINCIPLE OF
NATURAL JUSTICE
Right to be heard
Only one who
is affected by an order or a resolution has a right to be heard and no one
else.
Mrs. Marium Begum Vs. Board of Intermediate and Secondary
Education and others, 13 BLD (HCD) 8.
Principle of natural justice
No one
should be condemned unheard and in case of termination of service consequent to
the employee to meet the case against him and in case of such omission the
limitation of service cannot sustain and must be held to be illegal.
Md. Monjurur Rashid Vs. The Rural Electrification Board, Dhaka and
others, 13 BLD (HCD) 222.
Principle of Natural Justice
Order to
withdraw any property from acquisition without hearing the requiring body is
violative of the principle of natural justice.
Bangladesh, Represented by the Secretary, Ministry of L.A. &
L.R. and others Vs. M/S. Commercial Trust of Bangladesh Ltd and others, 14 BLD (AD)
72.
Ref: 27 DLR
597—Cited.
Principle of Natural Justice
Whether in
administrative or in judicial matters the principle of natural justice, if it
is not inconsistent with the provisions of the statute, must be strictly
adhered to and complied with.
Mrs. Nurjahan Begum Vs. Bangladesh and others, 14 BLD (HCD) 559.
Principle of Natural Justice
The lawful
order of the Government granting lease of the fishery in favour of the
petitioner having created a vested right in him, the Government’s order for
cancellation of the said lease without even issuing a show cause notice on the
petitioners ex-facie arbitrary and malafide and is violative of the principle
of natural justice and as such it must be struck down.
Abdus Salam, Managing Director S.P.and F.1.C., District Sunamganj
Vs. Additional Deputy Commissioner (Revenue), Sunamganj and others, 14 BLD (HCD)598
Ref:
Sharping Matshajibi Samabaya Samity Ltd. Vs. Bangladesh and others, 7BLD (AD)
106; Haji Nurul Islam Vs. Serajul Islam and others, 4BLD(AD)36-Cited.
Principles of Natural Justice
A Domestic
Tribunal holding an enquiry must act fairly and must comply with the principles
of natural justice.
Bangladesh Paper Mills Ltd Vs. Chairman, Third Labour Court and
another, 14 BLD (AD)97.
Principle of Natural Justice
The lawful
order of the Government granting lease of the fishery in favour of the
petitioner having created a vested right in him, the Governments order for
cancellation of the said lease without even issuing a show cause notice is
violative of the principle of natural justice.
Abdus Salam Vs. Additional Deputy Commissioner (Revenue),
Sunamganj and others, 14 BLD (HCD) 598.
Principle of Natural Justice and Rule of Fairness
The first
requirement of the rule of fairness is that the person to be proceeded against
must be made aware of the allegations against him. Since the respondents were
not available for showing cause and the whole atmosphere was surcharged with
emotions and far from congenial it was difficult for any tribunal or body to
act fairly and dispassionately. In the absence of extreme urgency in taking the
impugned action there cannot be any abridgement of the fairness rule.
The Principal, Chittagong Medical College and others Vs. Shahrayar
Murshed and others, 16 BLD (AD) 37.
Ref: Lord
Hodson in Ridge Vs. Baldwin (1964) AC 40 [Law Reports 19641; Dhaka University
Vs. Zakir Ahmed, 16 DLR (SC) (1964) 722 (733-734)——Cited.
Principle of natural justice
When the
lease deed contains a provision for giving one month’s notice for determining
the lease for violation of the terms of the lease, the cancellation of the
lease without such notice clearly amounts to a violation of the principle of
natural justice in addition to violation of the terms of the lease.
Dr. Abdul Muyeed being dead his legal heiress Mrs. Fatema Muyeed
and others Vs. People’s Republic of Bangladesh and others, 16 BLD (HCD)105.
Principal of natural justice
Since the
petitioner was given a higher cadre post on the basis of a decision by the
Selection
Committee and he served in, that capacity for quite a long period without any
blemish, he acquired a vested right to retain the post—Constitution of
Bangladesh, 1972, Articles— 102.
M.A. Ban Vs. The Chairman, Bangladesh Water Development Board (B.
W.D.B) and others, 18 BLD (HCD) 333.
Principle of Natural Justice
The
principle of natural justice is applicable to all proceedings, judicial, quasi-
judicial or administrative, if any consequence results therefrom adversely
affecting the person or property or rights of the affected party.
Shahrayar Murshed Vs. The Principal, Chittagong Medical College,
Chittagong and others, 16 BLD (HCD) 220.
Principle of Natural Justice
Although in the Passport Order
there is no
positive word requiring that the citizen whose passport is impounded shall be
given an opportunity of being heard, yet the principle of audi alterem partem
mandates that no one shall be condemned unheard— Constitution of Bangladesh, 1
972,Article— 3, Bangladesh Passport Order, 1973, Article—7(2)
Hussain Muhammad Ershad Vs Bangladesh and others, 21 BLD (AD) 69.
Principle of Natural Justice
Section
70(c) of the Act provides that the Registrar shall not exercise any power
vested in him by the Act or the rules made thereunder adversely to any party
duly appearing before him without (if required in writing within the prescribed
time so to do) giving such party and, opportunity of being heard.
Section 80
provides that whereby or under this Act, any act other than the making of an
affidavit, is required to be done by any person, the act may, subject to
prescribed conditions or in special cases with the consent of the government,
be done in lieu of by that person himself, by a duly authorised agent being
either a legal practitioner or a person registered in the prescribed manner as
a Trade Marks agent—Trade Marks Act, 1940, Section—70 (c) and 80
Nabisco inc, U.S.A Vs The Registrar of Trade Marks, 21 BLD (HCD)
402.
Principle of Natural Justice—In a Domestic Enquiry
When there
is no approved rules and regulations concerning the service of the employees of
any Organisation the departmental proceeding against a delinquent employee will
be guided by the normal rules and procedures of Domestic Enquiry. The principle
of natural justice is applicable in such a case.
Md. Momtazuddin Khan Vs. Managing Director, Agrani Bank and
others, 16 BLD HCD) 515.
Principle of Natural justice—In a domestic enquiry
In the
absence of any approved rules and regulations of the service of the employees
of any organisation the departmental proceeding against a delinquent employee
is to be guided by the normal rules and procedures of domestic enquiry and in
such enquiry the principle of natural justice shall apply.
Md. Momtazuddin Khan Vs. Managing Director, Agrani Bank, 16 BLD (HCD)
515.
Ref: 29 DLR
(SC) 41; 29 DLR (SC) 39; 31 DLR (AD)272—Cited.
Principle of Natural Justice
Educational institutions is in loco parents with the students
It is now
well-settled that an educational institution stands in the capacity of the loco
parents with that of the students of the institution and their relationship is
that of the guardian and wards. Since the petitioner was given sufficient
opportunity to explain himself and he was given personal hearing in the matter.
there being no allegation of malafide against any of the invigilators, it
cannot be said that the principle of natural justice was violated by examining
them in the absence of petitioner—Constitution of Bangladesh, 1972,
Article—102.
Md. Masum lqbal Vs. The Director of Students Welfare and
Member-Secretary of the Board of Residence and Discipline, BUET and others, 17
BLD (HCD) 7.
Principle of Natural Justice
It envisages
that no person should be condemned unheard. The impugned order excluding some
areas from the jurisdiction of the petitioner without affording him any
opportunity to show cause offends against the principle of natural justice and
is liable to be struck down as illegal and arbitrary— Constitution of
Bangladesh, 1972, Article—102.
Md. Lutfur Rahman Vs. Ministry of Law and Parliamentary Affairs,
Govt. of Bangladesh, 17 BLD (HCD) 192
Principle of Natural Justice
When a Court
passes an order in a case before him determining a particular matter and with
it a legal right accrues to the opposite party, that right cannot be taken away
without affording such party an opportunity of being heard. Ex-parte setting
aside of such an order without hearing the other party violates the principle
of natural justice.
Abdul Hai Mina and ors. Vs. Shaik Baziur Rahman and ors., 18 BLD (HCD)
591.
Principle of Natural justice
Principle of
natural justice extends to any person or body of persons deciding matters
affecting the rights and interests of an individual. Principle of natural
justice should be read to have been incorporated in every statute unless in
excluded expressly or by necessary implications.
Mrs. Jebon Nahar and others Vs. Bangladesh and others, 18 BLD (HCD)
141.
Ref: 17
DLR(SC)209; 44 DLR(AD)140- Cited.
Principle of Natural justice
When an
order is passed by a statutory authority in favour of a person, it cannot be
cancelled by the authority without giving the aggrieved party an opportunity of
being heard. Cancellation of two impugned orders without hearing the petitioner
just on the basis of a verbal objection by the Commissioner of Customs,
Exercise & Vat is illegal and is violative of the principle of natural of
justice— Constitution of Bangladesh, 1972, Article— 102
M/s. Regard Chemical Works Vs. National Board of Revenue, 21 BLD (HCD)
342.
Principles of Natural Justice
The High
Court Division was correct in holding that the cancellation of the allotment
and lease deed were without lawful authority since the same were done without
giving any notice to the allottee—Constitution of Bangladesh, 1972,
Articlel02..
Jahanara Ahmed v. Md. Abdul Quyum and others, 22 BLD (AD) 150.
PRIVATE
UNIVERSITY
Where an
application filed under subsection (2) of section 6 of the Act the Minister
provisionally accorded permission to start the University and there being no
order under sub-section (4) of the said section rejecting the petition and the
matter is pending for long, the notice given by the authority omitting the name
of the petitioner from the category of University obtaining permission was
illegal—Private University Act, 1992(XXXIV of 1992), Section—6.
Dhaka international University Vs. Secretary, Ministry of
Education and others,19 BLD (HCD) 155.
PRIVILEGE
Privilege is no vested right
Privilege
cannot be equated with any vested right and as such a person who failed to
avail of the privilege granted to him earlier cannot claim that privilege as a
matter of right—Constitution of Bangladesh, 1972, Article—102.
M/S. Janapriya Rice Mills Ltd. Vs. Bangladesh and others, 17 BLD
(HCD) 63.
PRIVILEGE OF
MEMBERS OF PARLIAMENT
A member of
the Parliament is entitled to such privileges as the Parliament may determine
and the determination is an act of discretion on the part of Parliament and
this cannot be adjudged as unconstitutional—Constitution of Bangladesh, 1972,
Article—68, Members of Parliament (Remuneration and Allowances) Order, 1973
(P.O. 28 of 1973), Article—3C.
Dr. Ahmed Husain Vs. Bangladesh, 18 BLD (AD) 184.
PROBATE
Even if the
Plaintiff could prove due execution of the Will, he would not have been
entitled to grant of a probate due to his failure to explain the suspicious
circumstances surrounding the execution of the Will.
Narendra Nath Biswas Vs. Sunil Kumar Biswas, 14 BLD (HCD) 10.
Ref: 35 DLR.
(AD) 315; 36DLR(AD) 156; Smt. Jaswant Kaur Vs. Smt. Amrit Kaur, A.I.R.
1977(SC)74; Paresh Chandra Bhowmik Vs. Hira Lal, 36 DLR(AD) 156- Cited.
Probate
Whether one
would be entitled to grant of probate even if he could prove due execution of
the will due to his failure to explain the suspicious circumstances surrounding
the execution.
Narendra Nath Biswas Vs. Sunil Kumar Biswas, 14 BLD(HCD)10
Probate
When a Court
will grant probate or letter of administration?
In a suit
for probate or letters of administration all that the court is required to see
is whether the testator executed the will of his own free will and he had the
testamentary capacity at the time of the execution of the will and it was duly
attested by witnesses. When execution and attestation of the will is proved,
the court cannot refuse the grant of probate or letters of administration.
Moktar Hossain Vs. Budhi Bala Dashi, 15 BLD (HCD) 38.
Ref: AIR
1925 (Lahore) 493; 14 C.W.N. 463; B.S.C.R Vol. 7 at P and H; A.I.R. 1987 P+ 1+
at Page 122; ALR. 1937 (Cal) 595; A.I.R. 1924 (Mad) 578; A.1.R. 1931 (Cal) 717;
A.I.R. 1916 (Cal) 938; A.I.R. 1959 (Cal) 8 and 81; A.I.R. 1949 Nag 154;—Cited
Probate
Application for Probate or Letters of Administration
When there
is no executor to apply for, grant of probate, any surviving legatee can apply
for grant of letters of administration in respect of the properties covered by
the will– Succession Act, 1925 (XXXIX of 1925), Section —276.
Moktar Hossain Vs. Budhi Bala Dash4 15 BLD (HCD) 38.
Probate
Long delay in applying for Probate or Letters of Administration
When it is
proved to the satisfaction of the court that the will was duly executed and
attested and the testator was in a fit state of mind and body to fully
appreciate what he was going to do, the court cannot refuse the grant of
probate or letters of administration. There is no bar of limitation in applying
for grant of probate or letters of administration
Moktar Hossain Vs. Budhi Bala Dashi, 15 BLD (HCD) 21.
Probate
In a case
for granting probate or letters of administration before the District Judge,
the proceeding shall take as nearly as may be, in the form of a regular suit
according to the provisions of Code of Civil Procedure. Every order made by the
District Judge by virtue of the power shall be subject to appeal to the High
Court Division and accordingly the revision is incompetent—Succession Act, 1925
(XXXIX of 1925), Sections—295 and 299, Code of Civil Procedure, 1908 (V of
1908), Section—115(1).
Anju Chowdhury and ors. Vs. Sailendr Kishore Chowdhury and ors.,
19 BLD(HCD) 379.
PROMISSORY
ESTOPPEL
‘Promissory Estoppel
The doctrine
of promissory estoppel is comparatively of recent origin. It is a principle
evolved by equity to prevent an injustice. The underlying principle is that
equity steps into mitigate the rigours of strict law. It has been interpreted
as a promise intended to be binding upon the contending parties.
Md. Matiur Rahman Vs. Bangladesh and others, 15 BLD (HCD) 331.
Promissory Estoppel
Though the
defendant failed to pay rent for 10 months within the due date and became
‘technically a defaulter, the court can take notice of the receipt of salami by
the landlord conferring on the tenant the right of subletting and
non-ejectability s a principle of promissory estoppel against the landlord
debarring him from going beyond the terms of the agreement to the detriment of
the tenant.
Munshi Amiruddin Ahmed Vs. Begum Shamsun Nahar, 15 BLD (HCD) 119.
Ref. 31 DLR
(AD) 155; 4 B. C. R. (AD) 520-Cited.
Promissory Estoppel
Equitable
principles are the tools for mitigating the rigours of law. Under the principle
of promissory estoppel the plaintiff is debarred from recovering possession
from the defendants as they made substantial improvement in the suit land
relying upon the assurance made by the original owner, although the defendants
did not acquire any title by adverse possession on the date of filing of the
suit.
Renupada Chakraborty Vs. Kurfan Ullah and others, 16 BLD (HCD) 250.
PUBLIC INTEREST LITIGATION
Public
Interest Litigation—Environmental benefits
The
leaseholders of Gulshan Model Town Area, as well as the leaseholders of other
areas of the Metropolitan city are entitled to the protection of the Court in
the matter of saving their environmental benefits in greeneries, lake, parks
etc.
Mrs. Parvin Akhter Vs. The Chairman, Rajdhani Unnayan Kartipakkha
and others, 18 BLD (HCD) 117.
Public Interest—Judicial Review
The purpose
of judicial review is to ensure that a citizen of the country receives
protection of law and the administrative actions comply with the norms of
procedure set for it by the law of the land. Judicial power is the safest
possible safeguard against abuse of power by the administrative authority and
the judiciary cannot be deprived of the said power—Constitution of Bangladesh,
1972, Articles—102( 1)(2)(a).
Dr. Mohiuddin Farooque Vs. Bangladesh and others, 18 BLD (HCD) 216.
PUBLIC
NUISANCE
Sanction of the Attorney General
If a member
of the public wants to institute a civil proceeding for a public nuisance it is
incumbent upon him to obtain sanction from the Attorney General under Section
91 (I) C.P.C. in the absence of any special damage to him. But for an action
against private nuisance no such sanction is necessary. It is enough for the
plaintiff if he can show that by the unlawful user of the land building the
defendant has caused some annoyance or discomfort to him—Code of Civil Procedure,
1908 (V of 1908), Section—91(1).
Wahid Mia alias Abdul Wahid Bhuiyan Vs. Dr. Rafiqul Islam and
others, 16 BLD (HCD)255
PUBLIC
PURPOSE
Establishment of a Three Star Hotel—Whether a public purpose?
The
establishment of a Three-Star Hotel at the initiative of a private individual
as a private commercial enterprise is not a public purpose in as much as
neither the Government has any direct financial involvement in it nor do the
public have any direct interest therein.
Md. Masudul Hussain and another Vs. The Deputy, 15 BLD (HCD) 493.
Public purpose
The term
‘public purpose’ means a purpose in which the interest of the public is
directly and primarily concerned as opposed to the particular interest of an
individual or a group of individuals. Such an interest must be directly
connected with the order of acquisition that is being made and must be vitally
concerned with it.
Md. Masudul Hussain and another Vs. The Deputy Commissioner, Dhaka
and others, 15 BLD (HCD) 493.
Public Purpose
Any purpose
which benefits the public or a section of the public is a public purpose. With
the onward march of civilization the concept of public purpose has been
broadening. If the purpose serves some public use or interest as opposed to the
particular interest of an individual the purpose is public.
Brahamanbaria Pourashova Vs. Secretary, Ministry of Land Reforms,
Government of Bangladesh and others, 19 BLD (AD) 87.
PUBLIC WRONG
When an
action concerns public wrong or injury or invasion on the fundamental rights of
indeterminate number of people, any member of the public being a citizen
suffering the common injury, has the right to invoke the jurisdiction under
Article 102 of the Constitution—Constitution of Bangladesh, 1972, Article—102
Mr. Chowdhury Mohmood Hossain v. Bangladesh and others, 22 BLD
(HCD) 459.