BLD’s Ten Years Civil Digest (1993—2002) Index
RECEIVER
Appointment of Receiver
The words
“just and convenient” occurring in Order 40, Rule 1. C.P.C. is construed
meaning that it is practicable that the interest of justice requires it.
Therefore receiver under this Rule would not be appointed merely because it is
just to do so unless it will be also be convenient to do so.—Code of Civil
Procedure 1908 (V of 1908),Order XL, Rule 1.
Humayun Kabir and others Vs. Md. Dasimuddin and others, 13 BLD
(HCD) 253.
Appointment of Receiver
The court
should not appoint a receiver except upon proof by the plaintiff that prima
facie he has a very excellent chance of succeeding in the suit and plaintiff
must show some emergency or danger or loss demanding immediate action and of
his own right he must be reasonably clear and full from doubt— Code of Civil
Procedure 1908 (Act V of 1908), Order XL, Rule 1.
Humayun Kabir and others Vs. Md. Dasimuddin and others, 13 BLD
(HCD) 253.
Appointment of Receiver
There is no
bar for appointment of a receiver during the pendency of an appeal clause(a) of
sub-Rule 1 of order 40 provides that the court may appoint a receiver of any
property before or after the decree, if it appears to the court to be just and
convenient — Code of Civil Procedure 1908 (Act V of 1908), Order 40, Rule 1.
Shamsuddin Ahmed and others Vs. Government of Bangladesh and
others, 13 BLD (HCD) 440.
Receiver
Under Order
XL Rule I C.P.C. the Court has powers to appoint a receiver of any property whenever
it appears to it to be just and convenient for the protection and preservation
of the property. It is, no doubt, a discretion of the Court but such discretion
must be exercised judiciously according to sound judicial principles. In order
to succeed the applicant must show a prima facie case and a good chance of
success in the suit—Code of Civil Procedure, 1908 (V of 1908), Order XL Rule 1.
Kamiruddin and others Vs. Md. Mokshed Biswas and others, 16 BLD (AD)
90.
Receiver
The
Appellate Division is loathe to interfere in the matter of appointment of a
receiver unless the circumstances are of such an exceptional nature that
refusal might lead to an a abuse of the process of the Court or some gross
injustice—Code of Civil Procedure, 1908 (V of 1908), Order XL Rule I
Akhteruzzaman vs. Ali Amjad Khan and others, 18 BLD (AD) 225.
RECORDS OF
RIGHT
Mere
recording in the SA Khatian of the suit land cannot confer any title on the
holder of the record—Specific Relief Act, 1877 (1 of 1877), Section—42
Md. Azizur Rahman Vs Most. Hasina Jamil, 21 BLD (HCD) 163.
Records of Right
In the event
of conflict between old record of right and recent record of right, recent
record of right would prevail in as-much-as presumption of record of right
loses its weight with the passage of time and entry in the subsequent
khatian—State Acquisition and Tenancy Act, 1950(VIII of 1951), Section—144A
Fatema Khatun Vs. Fazil Mia, 21 BLD (HCD) 14.
RECOUNTING
OF BALLOT PAPERS
Before
recounting of Ballot Papers of contesting candidates, whether the Court must
find that recounting is absolutely necessary and without recounting it may not
be possible for Tribunal to arrive at a correct decision to settle the dispute.
Md. A Gafur Mondal Vs. Md. A. Samad Talukder and another, 13 BLD
(11(D) 485
Recounting of the ballots
The Election
Tribunal has power to order for recounting of the ballots when it finds that
there exists a factual foundation for the same and it is necessary for a proper
decision in the case.
Ansaruddin Ahmed Vs. Senior Assistant Judge and Election Tribunal,
Barguna, and other, 14 BLD (AD) 77.
Recounting of ballot papers -When permissible?
When no
written prayer is made before the Presiding Officer for recounting of the
ballot papers on the ground of any malpractice and when no objection is raised
before the Returning Officer alleging election malpractices, it is to be held
that no valid ground for recounting of votes has been made out at the trial.
Muzaffar Hossain Vs. Md. Humayun Kabir and others, 15BLD (AD) 245.
Ref: Md.
Shajahan Vs. Md. Sadeq and another, 38 DLR (AD) 275-Cited.
Recounting of ballot papers by the Election Tribunal
The Election
Tribunal has power to pass an order for recounting of the ballot papers when
there exists a factual foundation for passing such an order.
Abdul Hye Akhand Vs. Monsurur Rahman Khan and others, 16 BLD (HCD)
403.
Recounting of ballot papers
Before
recounting ballot papers the Election Tribunal is required to ascertain the
proper custody and form of the election materials and connected documents and
to record findings thereon—Union Parishad (Election) Rules, 1983, Rule—42.
Syed A. Jalil. Vs. Mahbub Alam (Babul) and others, 17 BLD (HCD) 27.
Recounting of ballot papers
Election
Tribunal in the interest of justice may recount ballot papers for proper
resolution of an election dispute. But in order to make out a case for
recounting the person who challenges the counting has to prove that at the time
of counting of votes by the Presiding Officer a contesting candidates or his
election agent upon raising specific objection specifically requested the
Presiding Officer to recount the ballot papers and the same was improperly
refused or was not done in accordance with law.
Before
opening the election materials for recounting of ballot papers the Election
Tribunal is to satisfy itself positively that those materials has been
preserved by the proper authority in accordance with law and the same has also
been found intact under proper seal and cover so that no reasonable suspicion
can be raised by the interested candidate of any post election tampering with
ballot papers or other relevant election materials—Union Parishad (Election)
Rules, 1983, Rule— 38(4)(b).
Abdul Mutalib Vs. Md. Mostakim All and others, 19 BLD(AD) 156
Recounting of ballot paper
Although no
objection regarding counting of invalid votes was raised at the time of
counting of votes but omission to raise such objection is no bar to challenge
the result of an election in an election petition, objection gives rise to an
election dispute which is within the purview of the election tribunal to direct
recounting of votes Local Government (Union Parishad) Ordinance, 1983 (LI of
1983), Section—29(4), Union Parishads (Election) Rules, 1983, Rule—38
Md. Mozammel Hoque Vs Mohammad Ali, 20 BLD(HCD) (HCD) 359.
Recounting of ballot papers
In the
absence of any foundation no order for recounting can be recorded by the
Tribunal. Order for recounting of the ballot papers can be made only when the
tribunal is satisfied that making of such order is imperatively necessary to
decide the dispute and to do complete and effectual justice between the
parties. Recounting must not be ordered on the prayer of an unsuccessful
candidate whose sole effort is directed to unseat the returned candidate.
Recounting should not be made lightly or as a matter or course and also on the
sweet wishes of the unsuccessful candidate. Prayer for recounting if not made
by the defeated candidate or his agent or any person on his behalf before the
Presiding Officer on conclusion of counting at the polling station as embodied in
Article 36(5)(b) or before the Returning Officer as contained in Article 37(5),
the foundation for recounting of ballot papers cannot be said to have been
laid.
Mr. Emdadul Haque Bhuiyan Vs. Ataur Rahman Khan & ors., 20 BLD
(HCD) 74.
Recounting of Votes
The order of
recounting of votes was passed by the Election Tribunal legally on the
allegation of counting of invalid votes in view of the difference between the
votes secured by the petitioner and respondent No. 2 vis-à-vis the different
number of invalid votes shown in the consolidated result sheets, Ext. 1 and
Ext. Ka, in order to remove the confusion created by the said exts. True, that
no objection regarding counting of invalid votes was raised at the time of
counting of votes. But omission to raise such objection is no bar to challenge
the result of an election in an election petition as such objection gives rise
to an election dispute. It is, upon such objection, within the province of the
Election Tribunal to direct recounting of votes.
Khandker Rezaul Karim Vs. Md. Babul Hossain, 19 BLD (AD) 187.
Recounting of votes
On the
prayer of the petitioner the Election Tribunal recounted vote of all the
centres. Although the gunny bag containing the ballot papers had a hole and
packet no. I was found torn the High Court Division found that there was
nothing on record to show any malpractice in the matter. Ballot papers issued
and used for the purpose of voting were found intact. Recounting of votes
having taken place on the concurrence of the parties, no grievance on that
score can be entertained.
Abdus Sobhan Vs. Abdus Sattar and others, 16 BLD (AD) 1.
Recounting of ballot
Recounting
is not to be granted as a matter of course. It is only to be allowed when the
tribunal is satisfied on the basis of evidence before it that recounting is
indispensably necessary for complete and effectual justice.
Abdul Latif Bepari Vs. Md. Nurul Islam Howlader and others, 20 BLD
(AD) 264.
RECOVERY OF
LOAN
Section 10A
of the P.D.R. Act provides for special procedure relating to recovery of dues
of Bangladesh Krishi Bank. The
defaulting borrowers of the Bank are, of course, entitled to the protection of
law by way of appeal, review and revision provided by sections 51, 52 and 54 of
the said Act and as such section 1OA of the Public Demand Recovery Act cannot
be said to be repugnant to Articles 27 and 31 of the Constitution— Bangladesh
Krishi Bank Order, 1973 (P.O. No. 27 of 1973), Article—21, Public Demand
Recovery Act, 1913(111 of 1913), Section— 10A.
Bangladesh Krishi Bank, Monoharpur Branch, Comilla Vs. Meghna
Enterprise and another, 18 BLD (AD) 130.
Recovery of loan
It provides
for filing an application before the District Judge for realisation of its
dues. The District Judge may himself hear it or transfer it to an Additional
District Judge or a Subordinate Judge for its disposal. A Subordinate Judge
acting as an Artha Rin Adalat is not competent to directly entertain such an
application—Bangladesh Shilpa Rin Sangstha Order, 1972 (P.O. 128 of 1972),
Article—33.
Bangladesh Shilpa Ritz Sangstha Vs. Fashion Wear Limited, 18 BLD (AD)
186.
Recovery of loan
These are
the independent and alternative modes of recovery of B.S.R.S dues. Article 33
provides for filing an application before the District Judge, Article 34 speaks
of taking over management and administration of an industry and its sale while
Article 34 provides for taking recourse to the Public Demands Recovery
Act—Bangladesh Shilpa Rin Sangstha Order, 1972 (P.O. 128 of 1972), Article—33,
34 and 35.
Bangladesh Shilpa Rin Sangstha Vs. Azir Uddin Chowdhury, 18 BLD (AD)
144.
Recovery of time-barred debt
Even a
conditional offer or promise to repay the loan made after the period of
limitation does not save a t1me-barred debt.
M. Habib Oil Mills (Bangladesh) Ltd. and others Vs. Rupali Bank
Ltd., 17 BLD (HCD) 50.
RECOVERY OF
POSSESSION
To succeed
in a suit for recovery of possession U/s 9 of the Act, the plaintiff must file
the suit within 6 months of dispossession and he is required to prove that he
was in possession of the suit property till before he was dispossessed. In such
a suit the court will not adjudicate upon the question of title.
In suit for
recovery of possession under Section 9 of the Act there is no scope for
granting injunction. Section 54 of the Act deals with perpetual injunction
matters— Specific Relief Act (I of 1877), Sections-9 and 54.
Munshi Kamal Hossain Vs. Shamsul Hoque, 14 BLD(HCD)385
Recovery of possession
In a suit
for recovery of possession under section 9 of the Specific Relief Act the
person wrongfully dispossessed is entitled to recovery of possession
notwithstanding the question of title that may be set up as a defence—Specific
Relief Act, 1877 (I of 1877), Section -9
Mohammad Abdur Rouf Vs. Abdul Hamid and others, 16 BLD(AD)277
Recovery of possession
A plaintiff
in a suit under section 9 of the Act is required to prove is his possession and
dispossession within 6 (six) months next before the institution of the suit. In
a suit of this nature the court is quite competent to pass a decree in favour
of the plaintiff for recovery of the possession of the suit land,
notwithstanding any claim of title that may be set up in defence—Specific
Relief Act, 1877 (I of 1877), Section—9.
Md. Yakub Au Vs Md. Atiar Rahman and others, 20 BLD (AD) 183
RE-HEARING
No useful
purpose will be served if the re-hearing application is allowed and the appeal
be re-heard and no different view other than the views taken in allowing the
appeal can be taken—Code of Civil Procedure, 1908 (V of 1908), Order XLI Rule
21.
Md. Shamsul Huda and anr. Vs. Abdul Khaleque, 20 BLD (HCD) 482.
Re-hearing
The ground
as to the Court’s failure to record satisfaction about the reason for absence
of the Advocate when the case was called for hearing is too technical to deny
the absentee opposite parties a rehearing of the civil revision—Code of Civil
Procedure, 1908 (V of 1908), Section—151, High Court Rules, Chapter X.
Hasan Azam and others Vs Most Rabeya Khatun and others, 21 BLD
(AD) 136
REJECTION OF
PLAINT
There is no
hard and fast rule as to when and at what stage a plaint can be rejected. It
all depends upon the facts and circumstances of each case. As a general Rule,
an application to reject a plaint to be filed at the earliest, so as not to
fritter away time, energy and money on a fruitless litigation.
Jobeda Khatun Vs. Momtaz Begum and others, 13 BLD (AD) 31.
Rejection of plaint
Although
rejection of a plaint under order VII Rule 11 C.P.C. for non supply of
requisite stamp papers within the specified time amounts to a decree and is
appealable, in an appropriate case restoration of the plaint under section 151
C.P.C. may be justified.
Smt. Radha Rani Sadhukha Vs. Smt. Durga Rani Adhikari, 14 BLD (HCD)
487.
Rejection of plaint
Essential
facts constituting cause of action for the plaintiff must be stated in the
plaint, Non-disclosure of a specific cause of action is a good ground for
rejecting the plaint—Code of Civil Procedure, 1908, Order 7 Rule 11
Md. Ayub Vs. Sonali Bank and others, (HCD) 236.
Rejection of Plaint
Although
Order VII Rule 7 of the Code provides that every plaint shall state
specifically the relief which the plaintiff claims, yet in an appropriate case
the Court is competent to give a particular desired relief to the plaintiff
even though it was not specifically asked for—Code of Civil Procedure, 1908 (V
of 1908), Order VII Rule 7.
Most. Nazibunnessa Vs. Md. Abdus Sobhan Mia and others, 15 BLD (HCD)
621.
Rejection of Plaint
For
rejection of a plaint the Court is to look into the statements of the plaint
only and it cannot consider any fact stated in the written statement or any
document produced by the defendants. It is on the basis of the plaint alone
that the Court will have to see as to whether the suit is barred by any law or
it is not otherwise maintainable—Code of Civil Procedure, 1908 (V of 1908),
Order 7 Rule 11.
Jahura Bibi and others Vs. MW. Habibur Rahman & ors, 15 BLD (HCD)
519.
Rejection of Plaint on ground of limitation
The question
of limitation is a mixed question of law and fact and this can be decided only
at the trial on taking evidence. A plaint cannot be rejected under Order VII
Rule II of the Code on the disputed question of limitation—Code of Civil
Procedure, 1908 (V of 1908), Order VII Rule 11.
Md. Shahabuddin and others Vs. Habibur Rahman and ors, 16 BLD (AD)
279.
Jurisdiction of Civil Courts—Rejection of Plaint
The civil
Court can try all suits which call for determination of any civil rights except
those whose cognizance is expressly or impliedly barred by any statutory
provision. Exclusion of jurisdiction of Civil Courts is not to be readily
inferred—Code of Civil Procedure, 1908 (V of 1908), Section— 9, Order VII Rule
11
Md. Shahidullah Vs. Abdus Sobhan Talukder, 16 BLD (HCD) 423.
Rejection of plaint
Under
special circumstances the plaint is liable to be rejected in limini under the
inherent power of the Court in. the interest of justice without wasting time
and energy—Code of Civil. Procedure, 1908 (V of 1908), Section—151 and Order
VII Rule 11.
Md. Habibur Rahman Chowdhury Vs. Md. Shamsuzzaman and others, 17
BLD (HCD) 255
Rejection of plaint
In deciding
the question of rejection of a plaint the Court is required to consider only the
plaint itself. A plaint can be rejected only when the suit is found to be
barred under any law or when the Court finds that even if all the statements
made in the plaint are taken to be true and correct still then the plaintiff is
not entitled to any relief whatsoever—Code of Civil Procedure, 1908 (V of
1908), Order VII Rule 11.
Mst. Nurunnessa Vs. Mohibuddin Chowdhury, 17 BLD (HCD) 229.
Rejection of plaint
It is
unusual to throw out the plaintiff with his plaint by a civil Court at least
when there is disclosure of a cause of action for the suit and is not otherwise
unentertainable—Code of Civil Procedure, 1908 (V of 1908), Order VII Rule 11.
Md. Ali Ashraf and another Vs. Md. Scraj Master and ors., 17 BLD (HCD)
303.
Rejection of Plaint
In an
application under Order VII Rule 11 of the Code the statement in the plaint has
to be looked into to determine if the suit is barred by any law. But under
article 34(5) it is not the statement in the plaint but the reliefs claimed in
the suit under Article 34(5) (a) (i) or (ii) or (iii), which will determine
whether the suit is entertainable or not.—Code of Civil Procedure, 1908 (V of
1908), Order VII Rule 11, Bangladesh Shilpa Rin Sangstha Order 1972 (P.0.128 of
1972), Articles—34(1) and 34(5).
Bangladesh Shilpa Rin Sangstha Vs. Rahman Textile Mills Ltd. and
ors. 19 BLD (AD) 207.
Rejection of plaint
A plaint may
be rejected under Order 7 Rule 11 of the Code of Civil Procedure merely on a
plain reading of the plaint but in exceptional circumstances the Court may
invoke its inherent jurisdiction and can throw the plaint out in limini. The
plea of implied bar should be decided on evidence unless the fact disclosed in
the plaint clearly indicate that the suit is not maintainable. In exceptional
cases recourse may be taken even under section 151 of the Code. In an
application for rejection of plaint on the ground of undisclosed cause of
action the Court should not dissect the plaintiff’s case part by part.
Abdul Jalil & ors. Vs. Islamic Bank Bangladesh Ltd., 20 BLD
(AD) 278.
Rejection of plaint
The Court
can reject a plaint at any stage of the suit if any of the requirement of Rule
11 is satisfied. The principles involved are twofold. In the first place, it
contemplates that a still born suit should be buried at its inception so that
no further time is consumed and unnecessary expenses incurred on a fruitless
litigation. Secondly, it gives the plaintiff a chance to retrace his step at
the earliest opportunity, so that if permissible under the law, he may file a
properly constituted suit for appropriate relief—Code of Civil Procedure, 1908
(V of 1908) Order VII Rule 11.
Bellishar Mohini Mohan High School Vs Professor Mohammad Khurshed
Miah, 20 BLD (HCD) 366.
Rejection of plaint
From a
reading of the plaint the fate of the suit becomes clear if the suit is allowed
to proceed further it would only consume the time, energy and money of all the
parties concerned in such facts and circumstances of the case this court cannot
allow such frivolous, vexatious and malafide suit to continue further—Code of
Civil Procedure, 1908 (V of 1908), Order VII Rule 11.
Islami Bank Bangladesh Ltd. & ors. Vs Abdul Jalil & ors.,
20 BLD (HCD) 509.
Rejection of plaint
In deciding
the question of rejection of a plaintiff, the Court could not embark upon an
enquiry as to the genuineness or otherwise of the averments made in the plaint
but can only reject the plaint if comes to the conclusion even if all the
averments made in the plaint are correct still then the suit is barred under
any of the provisions mentioned in Order VII Rule 11 of the Code—Code of Civil
Procedure, 1908 (V of 1908), Order VII Rule 11.
Somona Khatoon Vs. Abdul Mannan and ors., 20 BLD (HCD) 227.
Rejection of Plaint
The cause
title and the prayer portion does not come within the ambit of averments made
in the plaint. The defect must be found out from the averments made in the
plaint. In the instant case on going through the plaint, there is nothing to
indicate that the plaintiff asserted that the Bank has taken a decision towards
that effect. In such a situation the provision of P.O. 129 of 1972 cannot be
attracted and as such the trial court, wrongly held that the suit is barred
under P.O. 129 of 1972 and as such it requires interference.
Messers Mecca Mills Limited and ors. Vs Deputy General Manager,
Loan Administration Department, Bangladesh Shilpa Bank, Dhaka and ors., 20 BLD (HCD)
138.
Rejection of plaint
Neither the
provisions of Act 32 of 1989 nor Rule 3 of Order XXXIX has got any manner of
application in considering a petition under Order VII Rule 11 of the Code.
Besides, under Order I Rule 8(I) of the Code, as amended, Court’s prior
permission was not necessary for filing a suit in a representative capacity.
The objection regarding locus standi of the plaintiff or whether there was any
cause of action for the suit are matters of evidence to be decided in the
suit—Code of Civil Procedure, 1908 (V of 1908), Order XXXIX Rule 3 and Order 1
Rule 8(1).
Bellishar Mohini Mohan High School and ors. Vs Professor Mohammad
Khurshed Miah, 20 BLD (HCD) 366.
Rejection of plaint
Where in a
suit an application under Order VII Rule 11 is filed for rejecting the plaint
on the ground that the averments made in the plaint do not disclose a cause of
action for the suit the Court is not called upon to decide the suit on merit on
taking evidence. It is only the averments made in the plaint are to be
considered to come to a finding as to whether those disclose a cause of action
and the Court while deciding such application is not permitted in law to travel
beyond the averments made in the plaint—Code of Civil Procedure, 1908 (V of
1908), Order VII Rule 11.
Md Abul Khair Vs Pubali Bank Ltd. & another, 21 BLD (AD) 32.
Rejection of plaint
Where a
certain fact is brought to the notice of the Court, which is not mentioned in
the plaint or which arises subsequent to filing of the suit and accepted as
true by both the parties, such a fact can be taken into consideration in
considering rejection of the plaint under Order VII rule 11 of the Code—Code of
Civil Procedure 1908 (V of 1908),Order VII Rule 11
Shaft A. Choudhury v. Pubali Bank Ltd. and others, 22 BLD (HCD) 423.
Rejection of plaint
Ordinarily,
a plaint should not be rejected on the ground of res judicata unless it is so
palpably clear and obvious from a meaningful reading of the plaint and no
further evidence is required—Code of Civil Procedure 1908 (V of 1908), Section—11
Shafi A. Choudhury v. Pubali Bank Ltd. and others, 22 BLD (HCD) 423.
RELATIONSHIP
BETWEEN A BANK AND ITS CUSTOMER
Bank and customer relation
The money
deposited with bank, is not in the nature of any goods bailed to the bank and
as such cannot withhold the money deposited to it in exercise of its right of
general loan.— Contract Act 1872(Act IX of 1872), Section— 17 1.
Rupali Bank Vs. Haji Ahmed Sabur and another, 13 BLD (HCD) 35
Relationship between a Bank and its customer
When a
person opens a current account with a Bank and pays money into it, whether the
Bank is a debtor to the customer.
A. Quayum and another Vs. Uttara Bank Ltd., 14 BLD(HCD)17
Relationship between Bank and Customer Banking
The account
being opened with a specific condition settling the act of operation of
payment, the Bank is bound to comply with the conditions on which it accepted
the deposit.
Ziauddin Ahmed & ors. Vs. Arab Bangladesh Bank &ors., 21
BLD (AD) 43.
RELATIONSHIP
OF LANDLORD AND TENANT
Agreement
for sale—Its effect upon the tenancy
The
conclusion of an agreement of sale of the disputed premises between the
landlord and the tenant has the effect of extinguishing the existing
relationship of landlord and tenant.
Md. Nurul Islam Patwari and others Vs. Abdul Awal Meah and others,
16 BLD (AD) 168.
REMAND
Order of Remand
Because
there was want of discussion of evidence on record by the trial Court and some
original records to be produced, the District Judge was justified to send the
suit back on remand to the trial Court without himself discussing the evidence
on record and allowing any additional evidence to be led by the parties and
thus finally deciding the issues inverted in the suit or appeal.—Code of Civil
Procedure 1908 (Act V of 1908), Order 41, Rule 23.
Afazuddin Mollah and others Vs. Sree Nirmal Chandra Das and
others, 13 BLD (HCD) 632
Remand
When the
plaintiff did not make any case of adverse possession in the plaint and she led
no evidence to establish it and the Courts concurrently found that the
plaintiff had no title in the suit land, the High Court Division was wrong in
remanding the case to the trial Court for giving an opportunity to the
plaintiff to amend the plaint for making out a new case of adverse
possession—Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 24 and
Order 6 Rule 17.
Golam Rahman Vs. Hazera Khatun, 16 BLD (AD) 166.
Remand
Where the
defendant did not contest the suit and did not adduce any evidence in support
of his case there is no scope for sending back the case on remand to the trial
Court for giving him an opportunity for proving his case.
When the
evidence on record is sufficient for disposal of the appeal on merit, the
appellate Court is required under Order XLI Rule 24 of the Code to finally
decide the appeal itself. An order of remand cannot be made just on the seeking
of a party—Code of Civil Procedure, 1908 (V of 1908), Order XLI Rules 23 and
24.
Md. Fashuddin Mondal Vs. Khejmatullah and others, 16 BLD (HCD)393
Remand
When
evidence on record is sufficient to effectually adjudicate upon the matters in
issue there can be no justification for remanding the case to the trial Court.
Under this rule the appellate Court is required to decide the appeal on the
basis of evidence on record— Code of Civil Procedure, 1908 (V of 1908), Order
XLI Rule 24.
Sreejukta Haladhar Karmakar and others Vs. Bangladesh and others,
16 BLD (HCD)519
Remand
The
appellate court being the final court of facts is required to consider tl4e
material evidence on record and thereafter either to affirm or reverse the
judgment of the trial court on assigning reasons therefor. The court of appeal
below merely shirked its responsibility in sending the case back on remand to
the trial court without itself deciding the appeal on merit on the basis of the
evidence on record—Code of Civil Procedure, 1908 (V of 1908), Order XLI Rules
24 and Benode Behari Mondal Vs. Arabinda Sarder and others, 16 BLD(HCD)93
Remand
Since the
provision of section 24A (2) has not been duly complied with and the defendants
did not get the opportunity to defend the suit the defendants should be given
an opportunity to defend the suit. The case is sent back on remand to the trial
Court for disposal on merit after notifying the parties—Code of Civil
Procedure, 1908 (V of 1908), Section—24A(2).
Abdul Khaleque Vs. Abdul Barek Howlader and ors., 17 BLD (HCD) 268.
Remand
When the
evidence on record is sufficient for the appellate Court to decide the appeal
on merit there is no justification at all in sending back the case on remand to
the trial Court for a fresh decision on the basis of the evidence already on
record.
Mustafa Kamal Bhuiyan and ors. Vs. Musammat Lutfunnahar Begum and
67 ors, 17 BLD (HCD) 311.
Remand
It is well
settled that the order of remand are not to be made as a matter of course when
there is sufficient evidence on record, remand of a case to the trial court for
fresh hearing is not called for.
Ledu Mutaiat vs. Abdul Gafur and ors., 19 BLD (HCD) 298.
Remand
Remanding a
case to the trial Court for fresh decision in the suit, after making necessary
amendment of the plaint, and allowing the parties to adduce fresh evidence to
fill in a lacuna of the pleadings of the parties, is not the intent and object
of an order of remand under order 41 rule 23—Code of Civil Procedure 1908 (V of
1908), Order XXLI Rule 23.
Akitullah and others v. Zafala Begum and others, 22 BLD (AD) 105.
Remand
Suit
remanded to the Appellate Court to consider Ext. A for enabling the plaintiff
to admit the said document in the suit as additional evidence under Order 41
Rule 27 of CPC. The provision of remand should not be exercised to cure any
defect or filling up any lacuna in the pleadings of the parties but in order to
decide the material issues in the suit, order of remand is imperative—Code of
Civil Procedure 1908 (V of 1908), Order XXLI Rule 27.
Superintendent Engineer, PDB. v. Madhumati Cinema Ltd., 22 BLD
(AD) 242.
REPRESENTATIVE
SUIT
Suing in representative capacity
Under Order
I Rule 8 C.P.C. a representative suit can be filed with the permission of the
court. Absence of a regular permission for suing in representative capacity
renders the proceeding untenable in law—Code of Civil Procedure, 1908 (V of
1908), Order I Rule 8.
Shaikh Tabibur Rahman and ors. Vs. Shaikh Nazrul islam & ors,
16 BLD (HCD) 2.
Representative suit
The
publication of notice in the case of a suit of representative character is
mandatory in nature because the people of the concerned locality must be made
to aware of the said suit so that they can get an opportunity to protect their own
right and interest—Code of Civil Procedure, 1908 (V of 1908) Order VII Rule 1.
Md. Siddique Mia Vs. Md. Habibur Rahman & ors., 20 BLD (HCD)
532.
RES JUDICATA
The reliefs
sought for in a suit for permanent injunction and a suit for partition being
quite different and distinct from each other, the result in the suit for
permanent injunction does not operate as res-judicata in a subsequent suit for
partition, in which the rights of the parties are finally determined—Code of
Civil Procedure, 1908 (V of 1908), Section—11.
Rabija Khatun and others Vs. Badsha Meah and others, 15 BLD (HCD)
325.
Res judicata
The
petitioner’s suit for declaration that the disputed property is not an
abandoned property and he has title thereto was dismissed on contest. The
petitioner’s appeal against the said judgment was also unsuccessful. The
decisions of a civil courts with regard to the nature of the property and the
plaintiffs claim thereto thus become binding upon the parties. The decisions of
the Civil Courts being binding upon the petitioner and the Government, the
Court of Settlement acted illegally and without jurisdiction in declaring that
the property in question is not an abandoned property—Code of Civil Procedure,
1908 (V of 1908), Section —11.
Mohammad Moinuddin Vs. The People’s Republic of Bangladesh and
another, 16 BLD(AD) 122
Res Judicata
When the
cause of action and the subject- matter of the two suits are different the
decision in one suit cannot be res judicata in the other suit-Code of Civil
Procedure, 1908 (V of 1908), Section—11.
Md. Rajiuddin Chowdhury Vs. Suruj Ali, 16 BLD(HCD) 96
Res Judicata
To attract
the provision Section 11 C.P.C. the issues in the former suit and the
subsequent suit must be the same, the suits should be between the same parties,
the subject-matter should be the same and the former suit must have been
disposed of finally— Code of Civil Procedure, 1908 (V of 1908), Section—11.
Jugal Kishore Sarker Vs. Md. Sohrab Au Sk. and others, 16 BLD (HCD)
549.
Res-judicata
The main
object of the principle of resjudicata is to prevent multiplicity of suits and
interminable disputes. This principle bars not only a new decision but also a
new investigation so that the same person cannot be vexed again and again over
the same question. This is available to the plaintiff as well as to the
defendant—Code of Civil Procedure, 1908 (V of 1908), Section—l1
Md. Mannaf Hossain Vs. Bangladesh Agricultural Development
Corporation, 17 BLD(HCD) 336.
Res-judicata
Question of
res-judicata cannot be decided from a reading of the plaint and should be
decided at the time of trial.
Md. Mahbubul Haque Vs Md. 4. Kader Munshi, 20 BLD (AD) 82.
Doctrine of Res Judicata
Doctrine of
res judicata is a special form of estoppel. It gives effect to the law that the
parties to a judicial decision should not afterwards be allowed to relitigate
the same question even though the decision may be wrong. If it is wrong it must
be challenged by way of an appeal or other procedure. The whole doctrine of res
judicata is based on consideration of judicial policy—Code of Civil Procedure,
1908 (V of 1908), Section—11.
Sirajul Islam Chowdhury Trawlers lid. Vs. Sirajul Islam Chowdhury,
20 BLD (HCD) 347
Res-Judicata
The parties
and the subject matter in both the suits are the same and the matter in issue
as to the loss sustained by the plaintiff due to the reasons stated in the
written statement of the earlier suit and plaint of the subsequent suit are
materially and substantially the same and these issues were raised in the
earlier suit and by necessary implication was rejected in the earlier suit and
that decree of the trial Court has already been affirmed by this Court and as
such the suit is hit by res judicata— Code of Civil Procedure, 1908 (V of
1908), Section—11.
Manager, Bangladesh Krishi Bank and others Vs. Al-haj Md. Nurul
Islam and another, 20 BLD (HCD) 179.
RESTITUTION
Restitution
It provides
that when a decree is varied or reversed the court of the first instance shall
on the application of a party entitled to any benefit by way of restitution or
is otherwise entitled possession, restore the party to the previous position.
This being the mandate of law, the High Court Division was wrong in refusing
restitution by ordering the analogous trial of the miscellaneous case u/s 144
C.P.C. with the original title suit—Code of Civil Procedure, 1908 (V of 1908),
Sections-144.
Mrs. Shahana Hossain Vs. A.K.M. Asaduzzaman, 15 BLD (AD) 167.
RESTITUTION OF CONJUGAL RIGHTS
Restitution of conjugal rights
Restitution
of conjugal rights -Islamic law on the subject
Islamic law
is far more stringent and zealous than either the civil or other religious laws
in protecting women from injuries in their married life. Injury does not mean
only the physical or mental injuries but it also extends to aversion of the
wife to live with an estrained husband.
Even though
findings of the Courts below are that the wife was refusing to perform her
marital obligations to the husband without any lawful excuse and the husband is
entitled to a decree for restitution of conjugal rights and the decisions of
the Superior Courts of the sub-continent support the said view, the High Court
Division departed from this traditional view in the light of observations
enshrined in the Islamic Jurisprudence.
Mosammat Nur Akhtar Vs. Md. Abdul Mabud Chowdhury, 16 BLD (HCD) 396.
Suit for restitution of conjugal rights
A suit for
restitution of conjugal rights is provided by section 5(b) of the Family Court
Ordinance, 1985 as well as by section 281 of the Mohammedan Law where a wife
without lawful cause ceases to cohabit with her husband. As such the view taken
by Single Judge of the High Court Division that a suit for restitution of
conjugal right is not maintainable in law cannot be is acceptable as a sound
proposition of law.
Hosna Jahan (Munna) Vs. Md. Shajahan (Shaju) and others, 18 BLD (HCD)
321.
Restitution of conjugal rights
Restitution
of conjugal rights being a reciprocal rights available to both husband and
wife, it is neither discriminatory nor violative of any of the provisions of
the Constitution.
Md. Chan Mia Vs. Rupnahar, 18 BLD (HCD) 329.
Suit for restitution of conjugal rights—Not maintainable in law
The law of
‘restitution of conjugal’ rights is repugnant to the Constitution and as such
void. In the result, no suit for restitution of conjugal rights is maintainable
in any Court— Constitution of Bangladesh, 1972, Articles— 26(1), 27, 31 and 32.
Mrs. Khodeja Begum and ors. Vs. Md. Sadeq Sarker, 18 BLD (HCD) 31.
RESTORATION
Restoration
From the
provision of section 144 of the code ,it will appear that whenever any decree
is varied or reversed, only then the question of restoration arises—Code of
Civil Procedure 1908 (Act V of 1908), Section—144.
Shamsuddin Ahmed and others Vs. Government of Bangladesh and
others, (HCD) 440
Restoration
An
application for restoration of case earlier rejected should not be allowed when
the Court is not satisfied with the statements made therein as well as in the
supplementary affidä1vit—Code of Civil Procedure 1908 (Act V of 1908), Order 7,
Rule 11
Islami Bank, Bangladesh Limited and others Vs. Md. Sirajul Islam,
13 BLD (HCD) 631.
Restoration of Writ Petition
The
provisions of Order 9, Rule 9 of the Code of Civil Procedure can be suitably
applied to Writ proceedings, dealing with Civil rights—Code of Civil Procedure
1908 (Act V of 1908), Order 9 Rule 9.
Abdul Latif Howlader Vs. Bangladesh Power Development Board and
others, 13 BLD (HCD) 479
Restoration of Civil Revision
From the
records of the High Court Division it appears that 9.12.1998 was the last
working day before the winter vacation. Moreover, substitution petition was
pending for disposal. From the impugned judgment it appears that there was
total non-application of judicial mind to those material facts. For the ends of
justice the civil revision ought to have been restored.
Sheikh Suna Vs Madaris Ali and others, 21 BLD (AD) 33.
Restoration of suit
When the
petitioner adduced corroborative evidence, including medical evidence, to prove
that she was ill at the relevant time and the opposite party led no evidence to
the contrary, the learned Assistant Judge erred ii. law in disallowing the
petitioner’s case under Order 9 Rule 13 CRC. without recording any finding that
she was not prevented by any sufficient cause—Code of Civil Procedure, 1908, Order
9 Rule 13.
Sreemoti Shova Rani Dhar Vs. Amulya Ranjan Dhar being dead his
heirs: Gita Rani Dhar and others, 14 BLD (HCD) 512.
Restoration of suit—Notice of
Against an
exparte dismissal of the suit the plaintiff may bring a fresh suit or he may
apply to the Court under Order IX rule 4 of the Code to set aside exparte
dismissal. The remedy actually availed of by the plaintiff in this regard is
not known to the defendant, unless notified. Since the restoration of a suit
takes place beyond the knowledge of the defendant he is entitled both in equity
and as of right to a fresh notice of the date fixed for hearing of the
suit—Code of Civil Procedure, 1908 (V of 1908), Order IX Rule 2,3, and 4.
Md. Siddique Vs. Yeakuti Begum and ors., 17 BLD (HCD) 579.
Restoration
Arbitrary
The
miscellaneous case allowed on the basis of an application under Order 9, Rule 4
of the Code. No witness was examined and no other material on record in support
the application, the impugned order must be held to be patently illegal and arbitratory—Code
of Civil Procedure, 1908 (V of 1908), Order IX Rule 4.
Ali Akbar Vs Farijuddin and another, 21 BLD (HCD) 388.
RETURN OF PLAINT
Section 23
of S.C.C. Act provides that when the right of a Plaintiff and the relief
claimed by him in a Court of Small Causes depend upon the proof or disproof of
title, which such Court cannot finally determine. the Court may, at any stage
of the proceeding, return the Plaint for presentation to the competent Court
for determining title—Small Causes Courts Act, 1987, Section 23
Shaikh Abdur Rashid Vs. Manik @ Jahangir Hossain, 13 BLD (HCD) 664.
Return of plaint
Having
regard to the provisions of section 15 of the Code providing that every suit
shall have to be instituted in the Court of the lowest grade, the High Court
Division returned the plaint to the filing Advocate for presenting the same
before the District Court—Code of Civil Procedure, 1908( V of 1908),
Section—15.
Ansarul Hoque Vs. Agrani Bank, 18 BLD (HCD) 138.
Return of plaint
The Artha
Rin Adalat Am makes no provision for return or rejection of the plaint as
contemplated in Order VII Rules 10 and 11 of the Code. Thus, when an Adalat
wrongly assumes jurisdiction and proceeds with a suit, the aggrieved party is
entitled to invoke the provision of section 151 C.P.C. for redress of its
grievance and the Court is competent togrant appropriate relief in exercise of
its inherent power.
Kazi Jawaherul Islam Vs. Standard Cooperative Society Ltd. and
others, 18 BLD (HCD) 310.
Return of plaint
Section
7(XI) of the Court-Fees Act provides an objective standard for the valuation of
a suit for eviction of a monthly tenant by the landlord. In such a case the
subjective satisfaction of the plaintiff is of no avail.
Under Order
VII Rule 10 of the Code of Civil Procedure the Court may return a plaint to the
filing Advocate when it is found that it has no jurisdiction, either pecuniary
or otherwise, to entertain and try the suit. A plaint cannot be returned on the
ground of incorrect valuation of the suit or for want of adequate court fees.
If it appears that the suit has not been properly valued and sufficiently
stamped, the Court required to make an enquiry either by itself or by any other
person appointed by the Court in that behalf to determine the correct valuation
of the suit in terms of sections 8C and 8D of the Court Fees Act. The learned
Assistant Judge clearly erred in law in returning the plaint to the filing
Advocate ignoring the express provisions of law regulating the return of the
plaint and the valuation of the suit.
Didar Ali and others Vs. Naziur Rahman, 18 BLD (HCD) 269.
Return of Plaint
When any
complicated question of title is involved in an S.C.C. suit, it is desirable to
act under Section 23 of the Act by returning the plaint for presentation before
the proper Court.
Rabiul Alam and another Vs. Sree Bidhan Kumar Deb, Advocate, 18
BLD (HCD) 46.
REVIEW
Review on
grounds other than the discovery of new and important matters or the existence
of any clerical mistake or order apparent on the face of the decree is not
contemplated by law.. A successor Judge is incompetent to hear a review
application if it was not filed before the Judge who had passed the
order/decree under review—Code of Civil Procedure, 1908( V of 1908), Order XLV
Rule 2 C.P.C..
Deputy Commissioner, Jamalpur and others Vs. Md. Nurul Hossain and
another, 13 BLD (AD) 225.
Review
The
Government has ample authority to review its own order if the earlier order is
found to be obtained by fraud and misrepresentations but the order of review
must show as to what prompted the authority concerned to review its earlier
order and what facts weighed with it. It must be a speaking order.
Syed Mohammad Salem Azam and others Vs. The Secretary, Ministry of
Works and others, 14 BLD (AD) 259.
Review
It is well-settled
that the right to review is a substantive right and such a right must be
conferred by law either specifically or by necessary implications. A review
under Order 47 Rule I C.P.C. is incompetent before the Artha Rin Adalat—Code of
Civil Procedure, 1908, Order 47 Rule 1.
Sultan Alam @ S. A. Badal Vs. Rupali Bank lid, and others, 14 BLD (HCD)
297.
Review
The
Government has every jurisdiction to review its own order if the earlier order
is found to be obtained by fraud and misrepresentation resorted to by an
interested party but the order of review must reveal what fraud and
misrepresentation were committed while obtaining the earlier order. The
impugned order of review shows nothing as to what prompted the authority
concerned to review its earlier order and what facts weighed with it. The
impugned order not being a speaking order cannot be sustained.
Syed Mohammad Salem Azam and others Vs. The Secretary, Ministry of
Works, Government of Bangladesh and others, 14 BLD (AD) 259.
Review
The
provisions of Order 47 Rule I read with section 151 C.P.C. are not available to
an aggrieved party in a case under the Artha Rin Adalat Am, 1990—Code of Civil
Procedure, 1908, Order XLVII Rule I and Section-151.
Messrs MAC-Proprietor, Mahtabuddin chowdhury and another Vs.
Agrani Bank, 14 BLD (HCD) 195.
Review-scope of
Review of
judgment is permissible only where there is an error apparent on the face of
the record or where the attention of the Court was not drawn to any particular
statutory provision of law for which an error has crept in the judgment. The
Appellate Division’s special power of review udder Article 105 of the
Constitution is exercised sparingly only in those cases where it becomes
necessary to do full and effective justice.
Idris Ali Bhuiyan Vs. Enamul Haque and another, 15 BLD (AD) 88.
Ref: Sow
Chandra Kanta and another Vs. Sheik Habib, A.I.R. 1975 (SC) 1500-Cited.
Review
Review of an
order made by an Artha Rin Adalat is not permissible in law.
Uttara Bank Ltd. Vs MIs.
Gold Hill. Tobacco Complex Ltd. and others, 15 BLD (HCD) 329
Review
Order XLVII
Rule I C.P.C. contemplates review of a judgment or an order under specific
conditions: (i) on discovery of new and important matter or evidence which was
unknown to or could not be produced by the petitioner earlier, (ii) on account
of some mistake or error apparent on the face of the record or (iii) any other
sufficient cause. Unless any of the above conditions is fulfilled the Court
will not sit on the matter again for a rehearing or further hearing— Code of Civil
Procedure, 1908 (V of 1908), Order XL VII Ru1e 1.
Basharatullah, being dead his heirs : Fazle Karim and others Vs.
Government of Bangladesh and others, 16 BLD (AD) 9.
Review
Limitation
for review of a judgment or order
The period
of limitation for review of a judgment or an order is ninety days from the date
of the decree or order under this Article. This has been so provided with a
view to securing finality of litigations. If this bar of, time is not placed on
the power of review it would mean that a judgment or order can never reach its
finality—Limitation Act, 1908 (IX of 1908), Article—173.
Government of Bangladesh Vs. Sukur Ali and others, 16 BLD (HCD) 545.
Review
In view of
the paramount consideration that there must an end to a litigation, the Court
will refuse to entertain a review application unless it clearly comes within
the purview of Order 47 Rule 1 of the Code—Code of Civil Procedure, 1908( V of
1908), Order XL VII Rule 1.
Halima Zaman and others Vs. Govt. of Bangladesh, 18 BLD (HCD) 296.
Review
A Small
Cause Court has jurisdiction to entertain an application of review of its
judgment or order as contemplated under section 114 read with Order 47 Rule 1
of the Code and decide it on merit—Small Cause Courts Act, 1887 (IX of 1887),
Section —17, Code of Civil Procedure, 1908 (V of 1908), Section — 114, order
XLVII Rule 1.
Gajendra Nath Mondal and others Vs. Mst. Motia Begum and others,
18 BLD (HD) 326.
Review
Reconsideration
of points wrongly or rightly considered in an appeal decided by this Division
without betraying apparent error on the face of record is no ground of review
of a judgment.
The General Manager, Jamuna Oil Company Ltd. Vs The Chairman,
Labour Court of Chittagong Division and others, 20 BLD (AD) 240.
Review—Service
It is, fit
and proper that the authority while deciding the question of seniority should
also consider that the petitioners have allegedly withdrawn their applications
foregoing their seniority. The authority should bear it in mind that the
petitioners have not preferred any appeal against the judgment of the High
Court Division and they by their unilateral action cannot render the judgment
of the High Court Division to be ineffective. The authority shall decide the
question of seniority of the petitioners and the added respondents keeping in
view the judgment of the High Court Division.
Md. Matiur Rahman & ors. Vs. Md. Enamul Haque & ors., 20
BLD (AD) 65.
Review
The power of
review as visualized in section 114 is to be traced to Order 47 Rule 1(1) of
the Code, which contains the prescribed conditions and limitations set by law.
A review is never contemplated to be a re-hearing of a case for re-opening a
closed chapter. It is available only under certain well-defined circumstances,
namely, where some important evidence has been discovered, which could not,
inspite of due diligence, have been known to the party to be produced at the
time of hearing or the Court has overlooked some important question of fact and
law, which would have a direct bearing on the decision of the case, or there is
otherwise some apparent mistake or error on the face of the record. The ground
that the Court has fallen into an error in deciding an important question or
that. an important ground was not urged at the original hearing, cannot be the
ground for review. The finality or sanctity that attaches to a judgment or
order passed by a competent Court on hearing the contending parties cannot be
lightly interfered with in review—Code of Civil Procedure, 1908 (V of 1908),
Section—i 14, Order 47 XL VII.
Sree Parimal Chandra & ors. Vs. Mst. Shaheda Begum & ors.
20 BLD (HCD) 55.
Review
A review
lies where an error apparent on the face of the record exists. It is not a
rehearing of the main appeal. Review is not intended to empower the Court to
correct a mistaken view of law, if any, taken if the main judgment—Constitution
of Bangladesh, 1972,Article—105.
Secretary, Ministry of Finance and others Vs Mr. Md. Masdar
Hossain and others, 21 BLD(AD) 126.
Review
The decision
of this Division though may be wrong on points of law, yet such decision does
not call for review unless the decision is on a question of great public
importance laying down a bad law.
Manaj Kumar Roy Chowdhury & ors Vs Government of Bangladesh
& ors, 21 BLD (AD) 67.
RE VISION
Revision
The
jurisdictional defect in the impugned Judgment is not itself a ground for
interfence in revision unless it has resulted in an error in the impugned
decision occasioning a failure of justice—Code of Civil Procedure 1908 (Act V
of 1908), Section—115.
Abul Kashem Md. Lutfullah Vs. Saiful Islam (Dumb) and others, 13
BLD (HCD) 648.
Revision
It is an
empowering provision granting discretionary power to the High court Division to
correct any error of law committed by any subordinate court resulting in an error
in the decision occasioning failure of justice. In an appropriate case the High
Court Division may exercise that power even suo motu— Code of Civil
Procedure, 1908 (V of 1908), Section—115.
Additional Deputy Commissioner (Revenue) and Assistant Custodian,
Vested Property, Serajganj Vs. Md. Abdul Majid and others, 17 BLD (AD) 57.
Revision
Where an
order is passed by the District Judge in a non-judicial matter in his
administrative capacity and not as a Court subordinate to the High Court
Division, no revision against such order is maintainable under section 115(1)
of the Code—Code of Civil Procedure, 1908 (V of 1908), Section—115(1).
M/s. Globe Metal Industries Vs. Asharaf Ali and others, 16
BLD(HCD)585
Revision
Reversing finding of fact in revision and construction of a
document
Construction
of a document is a mixed question of law and fact and the same having not been
properly construed by the lower appellate Court the High Court Division was
within its right to reverse a finding of fact arrived at by the Court below on
giving cogent reasons—Code of Civil Procedure, 1908 (V of 1908), Section—115.
Abu Musa being dead his heirs Md. Nurul Islam and others Vs.
Bangladesh and others, 17 BLD (AD) 91.
Revision
In
exercising power under section 115 of the Code the High Court Division does not
interfere in revision with an interlocutory order passed by the subordinate
Court unless such an order is patently illegal and if occasions failure of
justice—Code of Civil Procedure, 1908 (V of 1908), Section—115.
Md. Jahur Ahmed and others Vs. Chowdhury Ali Reza, 17 BLD (HCD)
277.
Revision
There is no
time limit prescribed in the Limitation Act for invoking discretionary
jurisdiction under section 115 of the Code but for the long standing practice
one has to file it without inordinate delay, preferably within 90 days like an
appeal—Code of Civil Procedure, 1908 (V of 1908), Section—115.
Ramizuddin alias Kalu Miah Mistri and others Vs. Kazi Tajul Islam
and others, 17 BLD (HCD) 424.
Revision
Concurrent findings of facts
Concurrent
findings of facts arrived at by the Courts below are immune from attack in
revision. But still then the High Court Division can interfere with those
findings even in revision when these are vitiated by misreading and non-reading
of the material evidence and misconstruction of an important document— Code of
Civil Procedure, 1908 (V of 1908), Section—115(1).
Shamsuddin Ahmed Vs. Dalil Patan and others, 17 BLD (HCD) 556.
Revision
The findings
arrived at by the Courts below have been rested upon consideration and
discussion of legal evidence and materials on record and also on a correct and
proper analysis of the legal aspects involved in the suit and the findings
being findings of fact, are not liable to be disturbed by the High Court
Division in the exercise of power under section 115 of the Code—Code of Civil
Procedure, 1908 (V of 1908), Section—115
Zamir Uddin Ahmed Vs. Md. Ziaul Huq and others, 17 BLD (HCD) 648.
Revision
Law of
limitation does not prescribe any period of limitation for filing a civil
revision. The long-standing practice of our Supreme Court is that a revisional
application is to be filed within 90 days. In appropriate cases the Court can
condone reasonable delay if the petitioner can furnish cogent explanation—
Limitation Act, 1 908(IX of 1 908),Section—5.
The Additional Deputy Commissioner (Rev.), Thakurgaon Vs. Md.
Khairullah and another, 17 BLD (HCD) 372.
Revision
During the
transitional period of setting up Benches of the High Court Division outside
the capital the case record of the Rule in question was transmitted once from
Dhaka to Rangpur and then from Rangpur to Dhaka but no notice of such
transmission of case record from Rangpur to Dhaka was given to the opposite
party of the Rule. Evidently the learned Judge of the High Court Division
failed to consider the uncontroverted assertion of the present appellant as the
opposite party in the Rule that he had engaged Mr. Abdul Mannan Khan at Rangpur
as his Advocate for the Rule but because of his death in October 1990 he could
not know about the fate of his case before 7.8.92 and he came to Dhaka on
15.8.92 and thereafter instructed his lawyer to take steps for re-hearing of
the Rule—Code of’ Civil Procedure, 1908 (V of 1908), Section— 115
Falguni Majumder Vs Mokbul Hossain Biswas and ors, 19 BLD (AD) 237.
Revision
Ordinarily
in exercise of revisional authority under section 115(1) of the Code the
revisional Court is not empowered to interfere with the finding of facts
arrived at by the Court or tribunal upon reappreciation of evidence unless
there has been non-consideration or gross misreading of evidence.—Code of Civil
Procedure, 1908 (V of 1908), Section— 115(1)
Abdul Mutalib Vs. Md. Mostakim Au and others, 19 BLD (AD) 156.
Revision
There was no
prayer for amendment of the plaint, not even before the Appellate Division. If
in revisional jurisdiction the High Court Division rides roughshod over both
substantive and procedural law then a litigant does not know what will happen
to his case, what course will it take and what relief will ultimately emerge.
This is a travesty of justice, as we know it. The suo motu exercise in the
manner it was done, besides being without jurisdiction was an act of extreme
judicial indiscretion—Code of Civil Procedure, 1908 (V of 1908), Section—115.
Md. Hefzur Rahman Vs. Shamsun Nahar Begum and another, 19 BLD (AD)
27.
Revision
In view of
the obvious laches on the part of the petitioner as also the concurrent
findings of facts recorded by the first two courts below there being no error
of law involving the case, there is no scope for interference.— Code of Civil
Procedure. 1908 (V of 1908), Section—115.
Additional Deputy Commissioner (Revenue) and Assistant Custodian,
Vested Property, Bagerhat Vs. Md. Shahajahan Ali and others, 19 BLD (AD) 25.
Revision
Mere
irregularity or illegality in the exercise of jurisdiction will not render the
Subor dinate Court’s judgment without jurisdiction. The party seeking revision
is to show further that there was violation of statutory provision or principle
of natural justice which rendered the proceeding coram-non-judice. A reference
to the provision of section 115 of the Code would show that every irregularity
or even illegality in the exercise of jurisdiction does not render the judgment
void. [Per Mahmudul Amin Chowdhury, J, (dissenting)j—Code of Civil Procedure,
1908 (V of 1908), Section—115.
Most Rokeya
Begum V Md. Abu Zaher & ors., 20 BLD (AD) 90.
Revision
Section
115(1) of the Code Civil Procedure can be invoked only for correcting error of
law resulting in an error in the decision occasioning failure of justice,
section 115 of the Code should not be confused with section 151 thereof.
Md. Raziur Rahman Chowdhury Vs Bangladesh & ors., 20 BLD (AD)
276.
Revision
Every matter
required to be decided by a court judiciously on application of mind with
reasons in support thereof would be a case decided for the purpose of
exercising revisional jurisdiction under section 115 of the Code. To put it
differently, section 115 of the Code would be attracted if a court subordinate
to the High Court Division has given a decision in respect of any state of
facts after judicially considering the same—Code of Civil Procedure, 1908 (V of
1908), Section 115
Sirajul Islam Chowdhury Trawlers Ltd. V. Sirajul Islam Chowdhury,
20 BLD (HCD) 347.
Revision
Reliance of statute beyond pleadings
Reliance by
the courts below on statements made by the petitioner in cross- examination in
arriving at its decision goes beyond the pleadings and evidence on record, and
the decision is accordingly not sustainable—Code of Civil Procedure, 1908 (V of
1908), Section—115.
Kuleshar Barman alias Kakaru Barman v. Sree Naresh Chandra Barman
and others, 21 BLD (HCD) 597.
Revision
The object
of Rule 31 of Order 41 of the Code is to see that a Judge does not act callously
or even mechanically. Its purpose is to put the Judge on the right track and to
the extent Rule of Procedure can do it, to see that he acts judicially. It
enables the High Court to judge whether the appellate Court below had
independently considered the case with a consciousness of relevant points which
arose for adjudication—Code of Civil Procedure, 1908 (V of 1908), Section—115
read with Order XLI Rule 31.
Musammat Nurjahan Begum and ors. Vs Kamaluddin Ahmed, 21 BLD (HCD)
538.
Revision
When the Court
of first instance after considering the evidence and demeanour of the witnesses
comes to a finding which has been reversed by the appellate Court without
giving due consideration on the proper aspect of the case, there cannot be any
reason why the finding of the lower appellate Court should not be set
aside—Code of Civil Procedure, 1908 (V of 1908), Section—I 15, Order XLI Rule
31.
Fatema Khatun Vs. Fazil Mia, 21 BLD (HCD) 14.
Revision—Error of law
Mere error
of law is no ground for invoking this Court’s revisional jurisdiction unless it
is shown that a failure of justice has been occasioned by that error—Code of
Civil Procedure, 1908 (V of 1908), Section—115(1).
Zakaria Hossain Chowdhury Vs The City Bank Limited, 21 BLD (HCD)
170.
Revision—Discretion
The court is
always in favour of supporting a discretion exercised by a Court subordinate to
it unless it can be shown that the discretion has been exercised arbitrarily
and perversely and cannot be supported by reason.
Matasim Ali Chowdhury V. Md. Ismail, 21 BLD (HCD) 216.
Revision
When a
statute bars entertainment of a revision the exercise of supervisory power
under Article 109 of the Constitution is not available.
Mrs. Hosne Ara Begum and anr. V. Islami Bank Bangladesh Limited,
21 BLD (AD) 34.
RIN SALISHI BOARD
It provides
that except as otherwise provided in this Act, the Evidence Act, 1872 and the
Code of Civil Procedure, 1908 are not applicable in the proceedings of the
Board—Rin Salishi Am, 1989, Section—24.
Md. Alauddin Sardar Vs. The Additional Deputy Commissioner
(Revenue), Satkhira and others, 14 BLD (AD) 183.
Rin Salishi Board
The Rin
Salishi Board will be constituted for each Upazila (now thana) by Gazette
Notification consisting of one Chairman and not less than two members but not
more than four members. In the instant case, the impugned notice was coram non
judice having been passed by the Chairman of the Board alone in the absence of
other members– Bangladesh Rin Salishi Am 1989 (XL of 1989), Section—13.
Mohammad Salim v Assistant Commissioner of Land and chairmnan,
Debt Settlement Board and others, 22 BLD (HCD) 475.
RULES
Memorandum
issued by the Government and Rules relating to settlement of fisheries
incorporated in the Government Estate Manual have no statutory force but it
merely provides administrative guidelines. It does not create any legal right
in favour of any person—Constitution of Bangladesh, 1972, Article—102(2)(a)(i),
Government Estate Manual, 1958, Rule—205.
Nur Mohammad Vs. The Secretary, Ministry of Education and others,
21 BLD (HCD,) 312
RULES OF BUSINESS
Since there
is no specific provision in the Rules of Business of the Government giving specific.
power to the Ministry of Law and Justice for according sanction under Section 188
Cr.P.C., the sanction accorded by the Ministry of Home Affairs is valid.
Dr. Taslima Nasreen Vs. The State, 15 BLD (HCD) 469.