BLD’s Ten
Years Civil Digest (1993—2002) Index
TARIFF VALUE
Tariff value
When
a writ petition is filed on a bald assertion that the high powered committee
arbitrarily and fictitiously raised tariff value without any objective material
before it, the High Court Division ought not to rush into issuing a Rule Nisi
and stay payment of duties and taxes. It should take notice under section
114(e) of the Evidence Act and should start with the presumption of regularity
in official business. Initially, in the writ petition itself, the writ
petitioner must include some reliable and relevant materials to show that
between the last date of fixation of tariff value and the impugned date of
fixation of tariff value the international market price of a particular
importer item has either gone down or has gone up to an extent which is
significantly higher or lower than the impugned fixation of tariff value. If
there are no such materials in the writ petition itself the High Court Division
should not entertain the petition and dismiss it in limine.
If
the writ petitioner annexes relevant and reliable documents in support of its
claim that the impugned fixation of tariff value is grossly inflated and is
abnormally higher than the prevalent international market price the High Court
Division will issue a Rule Nisi and may or may not pass an interim order
keeping in view the decision reported in 50
DLR(AD)( 1998) 129.
Mustafa
Kamal, Proprietor of MIs. Kamal Trading Vs. The Commissioner of Customs &
ors. 20 BLD (AD) 1.
Tariff value
Section
25 of the Act deals with the tariff value of imported and exported goods, not
with the rate of duty. This section
describes how the tariff value of imported goods and exported goods will be
determined, the assumptions on the basis of which the normal price of such
goods will be determined and the meaning of some words used in that section.
This is an executive power, not a legislative power—Customs Act, 1969 (IV of
1969), Sec tion—25.
Mustafa
Kamal Vs. The Commissioner of Customs & ors., 20 BLD (AD) 1.
Tariff Value
Though
the Government fixes the tariff value on the recommendation of a high- powered
advisory committee, the committee does not possess an unfettered, unlimited and
absolutely arbitrary discretion in determining the tariff value; It must follow
some guidelines which are germane to the Customs Act and not alien to it and
should also pay heed to the recommendation of the Tariff Commission when protective
customs duty is involved.
Mustafa
Kamal Vs. The Commissioner of Customs & ors., 20 BLD (AD) 1.
Tariff value
Section
81 of the Act has clearly provided that in case where there is no tariff value,
customs authority can assess the value provisionally and in sub-section (2) of
the said section it has been provided that the final assessment has to be made
within 150 working days from the date of provisional assessment but the
respondents have not made any final assessment of the customs duty of the imported
goods within the said stipulated time. Although proviso to the said section
provides that the Board under exceptional circumstances recorded in writing,
extend the period of final assessment under this subsection but the respondents
have failed to produce any paper to show that either final assessment of the
customs duty of the imported goods was made within the said stipulated time or
time was extended to the customs authority by the Board for such final
settlement. In the instant case the respondents acted illegally, without any
lawful authority in making provisional assessment of the goods in question at
US$ 1400 per Metric Ton and the petitioner’s imported goods are liable to be
assessed at the rate of US$400 per Metric Ton and the petitioner of the
respective writ petition is entitled to get refund of the amount which he paid
as customs duty in excess—Customs Act, 1969 (IV of 1969), Section—81.
Md. Salim
Hossain Vs. Government of Bangladesh and others, 20 BLD (HCD) 309.
TEMPORARY
INJUNCTION
Temporary
Injunction
There
must be some evidence of actual possession in order to entitle one to a
temporary injunction. Certificates of Upazila Chairman, this way or that way
will not be conclusive in the face of the fact that the appellants are owners
of 50 out of 85 acres of gher and that the appellants themselves never
authorized the plaintiff to cultivate sharing in their own land—Code of Civil
Procedure, 1908( V of 1908), Order 39, Rule 1.
Bhupendra
Nath Das and another Vs. Shaikh Kaizar Hossain and others, 13 BLD (AD) 101.
Temporary
injunction
Granting
of temporary injunction, is a matter of discretion with the Court, but cannot
be granted on mere asking, unless the court is satisfied with the same in
accordance with the saved principles in the facts and circumstances of the
case.
Maleka Banu
and others Vs. Lt. Cal. (Retd) Raziur Rahman and others, 13 BLD (HCD) 387.
Temporary
injunction -Its requirements
In
order to be entitled to an order of temporary injunction the plaintiff must
satisfy the following conditions: (a) a fair prima facie case, (b) a greater
convenience in his favour in granting injunction than refusing it and (c) an
irreparable loss and injury to him from refusal of injunction.
Abul Kalam
Azad and others Vs. Mr. Zahirul Haque and ors, 15 BLD (HCD) 435.
Temporary
Injunction
It
is well-settled that injunction cannot be granted when it interferes with
carrying on public duties. The plaintiffs lease of the Launch Ghat having
expired and he being not even a tenderer, he has no right to challenge the
calling of tenders of the Ferry Ghat. The suit itself is dismissed in limine.
Md. Khan
Saifullah (Panir) Vs. Abul Hossain Talukder ors, 15 BLD (HCD) 557.
Temporary
Injunction
The
view of the High Court Division that to establish a prima facie case it is not
necessary to file papers or documents and it can be spelt out from the plaint
and the Court can find out if the parties will go to the trial on the fair and
triable issue on consideration of pleadings has not been approved of by the
Appellate Division. A prima facie case is not only to be gathered from the
pleadings of the parties but also from the papers and documents submitted by
them—Code of Civil Procedure, 1908 (V of 1908), Order XXXIX Rules 1 and 2.
Serajul
Islam and others Vs. Md. Humayun Kabir and others, 16 BLD (AD) 173.
Temporary
injunction
When
the Court finds a prima facie arguable case in favour of the plaintiff the
prayer for temporary injunction is to be allowed— Code of Civil Procedure, 1908
(V of 1908), Order Rules 1 and 2.
Amirul Huq
Shameem and others Vs. A.K.M. Shamsuddin and others, 16 BLD (HCD) 319.
Temporary
injunction
Issuance
of temporary injunction without issuing any show cause notice upon the
defendant is not in conformity with the provisions of Order XXXIX Rules I and 2
of the Code. Rule 3 of Order XXXIX of the Code contemplates issue of show cause
notice to the defendant before granting injunction against him. An adinterim
injunction can of course be granted simultaneously with the issuance of a
show-cause notice in an urgent case—Code of Civil Procedure, 1908 (V of 1908),
Order XXXIX Rule 1,2 and 3.
Lawrence
Loat Ltd. and ors. Vs. AJAX Incorporated and Siltrade International Ltd., 17
BLD (HCD) 159.
Temporary
injunction
Mere
presence of a prima facie case or arguability thereof will not by itself be a
ground for issuing temporally injunction. The existence of a prima facie case,
irreparable loss and injury and the balance of convenience must co-exist before
granting temporary injunction—Code of Civil Procedure, 1908 (V of 1908), Order
XXXIX Rule 1 and 2.
Sarhind
Garments Ltd. :Vs. Glory Truth Industries Ltd. & another, 17 BLD (HCD) 204.
Temporary
injunction
When
from the averments made in the plaint or from admitted facts or from facts
apparent on the face of the record it is found that the suit is expressly or
impliedly barred under any law, the question of the maintainability of the suit
can be looked into even at the interlocutory stage while hearing a temporary
injunction matter. [Per Kazi Ebadul Hoque, . J.1 —Code of Civil Procedure, 1908
(V of 1908), Order 39 Rules 1 and 2.
Rajdhani
Unnayan Kartipakha Vs. Mohammad Jabed Au & ors., 17 BLD (HCD) 341.
Temporary
injunction
When
the application for temporary injunction under order 39 Rules I and 2 C.P.C. is
ripe for hearing it is unjust and highly improper for the trial Court to have
recourse to the inherent power of the Court under section 151 C.P.C. for
passing an order of adinterim injunction instead of disposing of the
application for temporary injunction itself. Section 151 of the code is the
special preserve of the court only for doing justice under given circumstances,
not as a fanciful exercise of power but as a course clearly dictated by the
need for advancing the cause of justice— Code of Civil Procedure, 1908 (V of
1908), Order XXXX Rules 1 and 2 read with Section—151.
Mrs. Kamrun
Nahar Putul Vs. Nur Afruza Begum Jot4 17
BLD(HCD) 535
Temporary
injunction
Requirements
of temporary injunction
The
existence of a good prima facie case, the question of irreparable loss and
injury to the petitioner and the balance of convenience and inconvenience of
the contending parties are the real determinants regulating grant of temporary
injunction—Code of Civil Procedure, 1908 (V of 1908), Order XXXX Rules 1 and 2.
Abdus Salam
and others Vs. Bangladesh Process and others, 17 BLD (HCD) 422.
Temporary
Injunction
Injunction
is granted when the Court is satisfied that the applicant has a prima facie
case to go for trial—Code of Civil Procedure, 1908 (V of 1908), Order XXXIX
Rules 1 and 2.
Kalur Hat
K.C. Bilateral School Vs. Sabbir Hossain Chowdhury, 20 BLD(HCD) (HCD) 66
Temporary
Injunction
A
statement that the defendant has no asset to the plaintiff’s knowledge within
the jurisdiction does not prima facie establish that the defendant has no
financial ability to satisfy a possible decree against him to justify a
temporary injunction against the payment of the money in dispute—Code of Civil
Procedure 1908 (V of 1908), Order XXXIX rule 1.
S.M. Fazlul
Haque v. Salahuddin Ahmed and another, 22 BLD (HCD) 155.
TENANCY
Tenancy
Heritability
of Monthly Tenancy
When
the issue on heritability of monthly tenancy is kept alive, the Court is
competent to take note of the latest decision on the subject—Transfer of
Property Act, 1882(Act IV of 1882)
Md. Enayet
Mowla Vs. Md. Abdul Karim Biswas, 13 BLD (HCD) 351
Tenancy
Section
10(b) of the Ordinance prohibits
the
acceptance of money by way of advance rent. Acceptance of advance rent renders
the agreement for lease void under section 23 of the Contract Act. In view of
the unenforceability of such an agreement, the lessee is regarded as a monthly
tenant.
Even
if a tenant becomes a defaulter during the continuance of the suit, he should
be treated as a defaulter and he is not entitled to the benefit under section
18(5) of the Ordinance—Premises Rent Control Ordinance, 1963 (XX of 1963),
Sections—10(b) and 18(5), Contract Act, 1872(IX of 1872), Section-23.
Md.
Jashimuddin and another Vs. Mrs. Nurjahan Begum, 14 BLD(HCD)528
Tenancy
Under
Section 19 (1) a tenant is entitled to deposit his rent with the Controller
when the landlord has refused to accept the same after it was remitted to him
within the specified period by postal money order in terms of Section 18 of the
Ordinance. Law does not require that there should a prior personal tender of
the rent to the landlord before remitting it by postal money order—Premises
Rent Control Ordinance, 1963 (Ordinance XX of 1963), Section -18(5) and 19(1).
M/S. Golden
Biscuit Co. Vs. Al-Haj Rafique Mia and another, 14 BLD (HCD) 294.
Tenancy’
A ‘tenant
holding over or a tenant at will’ and a ‘tenant by sufferance’
Holding
over means retaining possession in a demised premises. If a tenant continues in
possession after the determination of the tenancy with the consent of the
landlord, he is called a ‘tenant holding over or a tenant at- will’ while a
tenant who continues in possession after the determination of the lease without
the landlord’s consent, he is called a ‘tenant by sufferance’ Transfer of
Property Act, 1882(1V of 1882), Section-106.
Md. Mokbul
Hossain Khondker Vs. Mosammat Jaheda Khatoon, 14 BLD (HCD) 549.
Tenancy
The
petitioner having continued as a tenant in the remaining part of the demised
premises after demolition of the front portion he will be deemed, to be a
tenant of whatever portion he occupies and there can be no manner of making the
notice ineffective because of changes in the size of the demised premises.
Also
it cannot be said that because of demolition of two-third of the tenancy there
was no tenancy at all—Transfer of Property Act, 1882 (IV of 1882), Section—106
Sree Mukti
Pada Shil Vs. Golam Mohammad, 19 BLD (AD) 124.
Tenancy
The
tenancy. in question having been created prior to and continued when the Act
came into force on 20.10.1949, and such tenancy transmitted by inheritance, the
plaintiffs acquired an interest to continue such possession as of right which
is protected from eviction—Non-Agricultural Tenancy Act 1949 (XXIII of 1949),
Section—7.
Ramzan Mia
& ors. v. Idu Mia & ors., 22 BLD (HCD) 211.
Tenancy
Tenant out
of possession
No
application under section 2F(1) and 21(3) of the Ordinance is maintainable when
the tenant seeking permission is out of possession of the disputed premises at
the time of making the application and when the question of reconstruction is
involved– Premises Rent Control Ordinance of 1986 (Ordinance No. XXII of
1986), Section—21
Abdul Kader
Khan v. Rajshahi Cooperative Town Society Ltd., 22 BLD (HCD) 456.
Tenant
The
payment of rent to the government in respect of the suit land shows that the
plaintiffs have been recognised as tenants under the
government—Non-Agricultural Tenancy Act 1949 (XXIII of 1949), Section—26.
Ramzan Mia
& ors. v. Idu Mia & ors., 22 BLD (HCD) 211.
Tenancy—Rent
Whatever
amount is paid by the tenant to the landlord as a consideration for the
amenities, benefits and services provided by and at the cost of the landlord in
connection with the use and occupation of the demised premises will form part
of the rent.
In
the present case monthly rent was fixed at Taka 1,098?- only for the suit
premises. By a separate clause it was provided that WASA charges will be paid
by the tenant at the rate of Taka 60/- only per month along with the rent. The
amount. which is not due to the landlord on account of any amenity, benefit or
services rendered by him, does’ not form part of the rent. The landlord could
complaint of breach of the agreement for non-payment of WASA charges as agreed
upon between the parties but non-payment or non-deposit of the WASA charges along
with the rent would not render the tenant a defaulter—–Premises Rent Control
Ordinance, 1986 (XXII of 1986), Sections -18(6) and 19.
Continental
Corporation (Pvt.) Ltd. Vs. Al-Haj Md. Ismail, 16 BLD (AD) 188.
TENDER
DOCUMENTS
Submission
of a tender
A
mere submission of a tender, will not create a right for it to be accepted and
protected. The authority may accept a higher tender if they have reasons to do
so and in public interest and refuse to do so.
Agragami
Engineers Ltd. Vs. Bangladesh Bank and other, 13 BLD (HCD) 327.
Tender
Documents—Terms and Conditions
Where
none of the tender terms and conditions either contemplate offering of
explanation by a bidder for clarification of his bid nor authorise the
purchaser to take notice of any such communication any decision taking into
consideration such materials is violative of the terms and conditions of the
Tender Documents.
MIs. Hyundai
Corporation v Sumikin Bussan Corporation & others, 22 BLD (AD) 16.
TRADE MARK
Trade Mark
It
provides that any person interested in the matter may apply to the High Court
Division for cancellation of the registration of a design on the ground that
the design is not a new or an original one. The questioned design not being a
new and original one, the Controller of Patents and Designs committed a clear
illegality in registering the same—Patents and Designs Act, 1911 (11 of 1911),
Section — 51A.
Messrs
Howlader Electronics Vs. Messrs Khan Electronics
Ltd and others, 15 BLD (HCD) 50.
TRADE
ORGANISATION
Trade
organisation
A
‘trade organisation’ is completely a different species of company, whose
registration, functioning, operations, management, control, election and the
resolutions of the disputes are controlled by specific provisions of the Trade
Organization Ordinance, such as a licence from the Government is required under
section 3 of the Trade Organization Ordinance before registration under the
Companies Act. A trade organization cannot amend the Memorandum and Articles of
Association without prior approval of the Government, all acts and proceeding
of a trade organization are subject to the control of the Director who can
cancel, suspend or modify any resolution .or decision taken by the General
Meeting or the Executive Committee, suspend any member, remove him from the
membership register—Companies Act, 1994(XVIII of 1994), Section—28, Trade
Organization Ordinance, 1961(XLV of 1961), Sections—3, 8 and 9.
Ibrahim
Cotton Mills lid and & ors. Vs. The Chittagong Chamber of Commerce and
Industry & ors., 19 BLD (HCD) 372.
Trade
organisation
Apart
from Section 12 of the Trade Organisation Ordinance, Article 66 of the Articles
of Association of the Chamber of Commerce there is a provision similar to the
one provided in section 12 of the Trade Organisation Ordinance. Accordingly as
per provision of Article 66 the matter is required to be sent to the
arbitration tribunal before filing the application under section 43 of the
Companies Act, 1994.
In
view of the above the application under section 43 of the Companies Act for the
rectification of’ the members register is held to be not maintainable as the
said matter has not been earlier referred to the Arbitration Tribunal as
provided in Section 12 of the Trade Organisation Ordinance and or as stipulated
in Article 66 of the Articles of Association of the Chamber of Commerce and
hence the application under Section 43 of the Companies Act be returned to the
petitioner—Companies Act, 1994 (XVIII of 1994), Section—43, Trade Organisation
Ordinance, 1961 (XLV of 1961), Section—12, Chittagong Chamber of Commerce and
Industry, Articles of Association, Article—66
Ibrahim
Cotton Mills Ltd and & ors. Vs. The Chittagong Chamber of Commerce and
Industry & ors., 19 BLD(HCD) 372.
Trade Organisation
Section
12 of the Ordinance has not completely ousted the jurisdiction of the Court but
before coming to the Court the petitioners are to refer the matter to
Arbitration as provided in section 12 of the Ordinance—Trade Organisation
Ordinance, 1961 (XLV of 1961), Section—12.
Ibrahim
Cotton Mills lid. Vs. The Chittagong Chamber of Commerce and Industry, 19 BLD (HCD)
372.
Trade
Organisation
The
Trade Organisations Ordinance is a special legislation providing provisions for
regulation and control of trade organizations. It provides the framework within
which a trade organisation is to function. This makes a trade organisation,
like the CCCI, though incorporated under section 28 of the Companies Act, a
special type of company. Unlike an ordinary company its functions, management,
control, election and resolution of dispute are governed by various provisions
of the Ordinance.
Kamaluddin
Ahmed Vs Director of Trade Organisations, Ministry of Commerce, Dhaka and
others, 20 BLD (HCD) 457.
Trade
Organisation
From
the reading of section 9 of the Ordinance it appears that all acts and
proceedings of trade organisations are subject to the control of the Director,
Trade Organisations. This section gives the Director Trade Organisation the
general authority to arrogate to itself the power to look into and regulate the
internal affairs of the CCCI. Sub-section (1) of section 9 specifically gives
power to the DTO to cancel, suspend or modify any resolution adopted or any
decision taken, by the general body or its Executive Committee for its not
being in conformity with the provisions of the Memorandum and Articles of
Association or any Rules, Regulation made thereunder—Trade Ordination
Ordinance, 1961(XIV of 1961), Section—9.
Kamaluddin
Ahmed Vs. Director of Trade Organisation, Ministry of Commerce, 20 BLD (HCD)
457.
Trade Organisation
The
Trade Organisation Ordinance is a special legislation providing provisions for
regulation and control of trade organizations. It provides the framework within
which a trade organisation is to function. This makes a trade organisation,
like the CCCI, though incorporated under section 28 of the Companies Act, a
special type of company. Unlike an ordinary company its functions, management,
control, election and resolution of dispute are governed by various provisions
of the Ordinance.
Kamaluddin
Ahmed Vs. Director of Trade Organisation, Ministry of Commerce, 20 BLD (HCD)
457.
TRADE UNION
Section
47A of the Industrial Relations Ordinance, if read with the amendment proviso
to clause (b) of sub-section(1) of section 25 of the Ordinance, it becomes
clear that the protection given to an officer a Trade Union, during the
pendency of an application for registration of such union, can be enforced by
filing an application under section 25 of the Ordinance—Industrial Relations
(Amendment) Ordinance, 1985(XV of 1985), Section—47A, Employment of Labour
(Standing Order) (Amendment) Ordinance,1985(XVI of 1985), Section—25(1)(b).
Star Alkaid
Jute Mills Ltd. Vs. Chairman 2nd Labour Court and another, 18 BLD (HCD) 130.
Trade Union
Since
the Registrar of Trade Union has no authority to adjudicate which one of the
parallel committee valid and legal one, the impugned letter is mere statement
of fact till same should not be allowed, to remain in force—Constitution of
Bangladesh, 1972, Article—102.
Al-haj
Rahmat Ullah Chowdhury & anr. Vs The Govt. of Bangladesh, 19 BLD (HCD) 510.
Trade Union
The
word “Trade Union” directly relates to “worker and workmen” of a commercial or
business establishment and/or an industry and rests on the labour laws. In the
absence of any commercial/business establishment or industry, the question of
trade union does not arise.
“Trade
Union” means any combination of “workmen” or employees” formed primarily for
the purpose of regulating the relations between the workers and employees or workmen
or employees or imposing restrictive conditions on the conduct of any trade or
business and it includes federation of two or more trade unions.
Bangladesh
Anabic Shakti Commission Karmachari Union Vs. The Member, Labour Appellate
Tribunal, Dhaka and others, 21 BLD (HCD) 274.
Ref:
A1R1970(SC)1407; 1975(SC)2023— Cited.
TRANSFER OF
SUIT
Transfer of
suit
In
deciding a question in respect of an order of transfer of a case on the ‘sole
ground of an analogous trial with another case, it needs to be seen whether the
facts and nature of the cases are conducive for such transfer—Code of Civil Procedure
1908 (Act V of 1908), Section—24.
Tambia
Khatun Vs. Abdur Rouf Sowdagar, 13 BLD (HCD) 248.
Transfer of
Suit
Section
24 C.P.C. provides that an application for transfer is to be heard after
issuance of notice on the other side but where the court acts suo motu, no such
notice is necessary. In the instant case the transfer of the case without
hearing the other side is contrary to the provision of section 24 C.P.C. and it
amounts to “some mistake’ apparent on the face of the record and furnish a good
ground for review.
Mathura
Mohan Pandit being dead his heir Sudhir Chandra Das Vs. Most Hazera Khatun, 14 BLD
(HCD) 546.
Transfer of
suit
There
cannot be any assumption that a District Judge who is a party to a suit will
receive automatic support and sympathy of his peers while trying a suit to
which he is a party. To give way to such assumptions will be a ruinous
invitation to a floodgate which should not be opened. The High Court Division
rightly did not encourage a transfer on a mere unfounded apprehension—Code of
Civil Procedure, 1908 (V of 1908), Section—24( 1)(b)(i).
Mosammat
Shahida Khatun Vs. Abdul Malek Howlader and ors, 18 BLD (AD) 217.
Transfer of
suit
From
a perusal of section 25 of the Ordinance it is clearly seen that the High Court
Division is competent to transfer any suit from a Family Court of any district
to a Family Court of another district on the application of either party or its
own accord.
Syeda Helana
Akhtari Vs. Khondaker Bazle Mowla, 18 BLD (HCD) 611.
TRANSPOSITION
OF PARTIES
Transposition
of Parties
When
the right to sue survived on the death of the sole plaintiff, respondent Nos. I
and 2, who were proforma defendants in the suit, become entitled to proceed
with the suit on being transposed as plaintiffs. The existence of other heirs
of the deceased plaintiff cannot stand in the way of their substitution and
transposition—Code of Civil Procedure, 1908 (V of 1908), Order I Rule 10.
Ramizuddin
Miah Vs. Jarimunnessa and others, 15 BLD (AD) 52.
Transposition
of Party
In
the face of the averments made in the plaint itself that the proforma
defendants have identical interest in the suit land as crowners with the
plaintiffs, their prayer for transposing them as co-plaintiffs cannot be
refused—Code of Civil Procedure, 1908 (V of 1908), Order I Rule 10.
Motahar
Hossain and others Vs. Moenuddin Sk. and others, 15 BLD (HCD) 330.
Transposition
of Party
There
is no bar in transposing the petitioners into the category of the plaintiffs in
the instant partition suit for complete and proper adjudication of the
questions in dispute in the suit and to avoid multiplicity of litigation
between the parties—Code of Civil Procedure, 1908 (V of 1908), Order I Rule 10.
Md. Abdul
Jalil Shah and another Vs. Rahima Khatun and others, 19 BLD (HCD) 169.
TRUST
Trust
The
scope of section 74 of the Trusts Act is limited only to those cases where the
trust is an undisputed and executable one. In the instant case, the creation, validity and excitability of the
trust itself being disputed, the trial court was correct in holding that the
Miscellaneous Case under section 74 of the Trusts Act be stayed till disposal
of Partition Suit pending between the contending parties for avoiding possible
conflicting decisions.
Khalid
Hamidul Huq Vs. Mrs. Nafisa Chowdhury and others, 15 BLD (AD)79.
Trust
In
the facts and circumstances of the case and in view of the finding of the lower
appellate court that because of the formation of trust committee, the appellant
as the Secretary of the Committee was entitled to be substituted under Order
XXII Rule 10 C.P.C. in the suit in question. The High Court Division upon
taking an erroneous assumption of the real facts wrongly passed the impugned Judgment—Code
of Civil Procedure, 1908 (V of 1908), Order XXII Rule 10.
Falguni
Majumder Vs. Mokbul Hossain Biswas and ors, 19 BLD (AD) 237.
USUFRUCTUARY
MORTGAGE
Treatment of
certain transaction as Usufructuary mortgage
To
attract the application of Section 95A of the Act the transaction in question
must be a subsisting one on the date of promulgation of President’s Order No.
88 of 1972. Transaction which was not alive on that date is to be treated as a
transaction past and closed— State Acquisition and Tenancy Act, 1950 (XXVIII of
1951), Section—95A.
Abdul
Khaleque Sarnamat Vs. Abdul Khaleque Sarnamat and another, 16BLD (AD )210.
Usufructuary
mortgage
An
agreement for reconveyance with a deed of sale as contemplated under section
95A of the Act is not required to be compulsorily registered as required under
section 95(2) of the S.A.T. Act—State Acquisition and Tenancy Act, 1950 (XXVIII
of 1951), Section—95A.
Abdus Salam
Sheikh and others Vs. Puspa Rani Shil and others, 16 BLD (AD) 299.
Usufructuary
mortgage
When
a transfer is found to be a complete Usufructuary mortgage under section 95A of
the S.A.T. Act, the limitation will be governed by Article 148 of the
Limitation Act.
Md. Rajiuddin
Chowdhury Vs. Suruj Ali 16 BLD (HCD) 96.
Usufructuary
mortgage
Section
95A of the S.A.T. Act is in Part V and it was given effect to in the District
of Chittagong on 1st August, 1963 and as such the provisions of this section
cannot be pushed beyond that date. The disputed transaction which is dated
13.12.1949, even if it be taken to be a complete Usufructuary mortgage, it
cannot be redeemed under section 95A of the S.A.T. Act as being a past and
closed transaction—State Acquisition and Tenancy Act, 1950 (XXVIII of 1951),
Section -95A
Nurul Islam
Chowdhury and another Vs. Upazila Revenue Officer, Patia and others, 16 BLD (HCD)
31.
Usufructuary
mortgage
Where
in terms of an Ekrarnama, which is also a contemporary registered document, the
transferee agrees to reconvey the land to the transferor on repayment of the
consideration money within 6 years, the transfer in question must be held to be
a complete Usufructuary mortgage, although it is a sale with a condition for
reconveyance—State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), Section
-95A.
Md.
Rajiuddin Chowdhury Vs. Suruj Au, 16 BLD (HCD) 9.
Usufructuary
mortgage
An
unregistered agreement for reconveyance is valid in law and the provision for
registration of such an agreement as required under Section 95(2)(3) of the Act
does not bar its enforcement—State Acquisition and Tenancy Act, 1950 (XXVIII of
1951), Section—95(2)(3).
Md. Osman
Gani Talukder alias Sujat Au Talukder Vs. Md. Osman Au Mondal, 16 BLD(HCD)165
Usufructuary
mortgage
The
expression ‘either by way of an out and out sale with an agreement to reconvey”
used in section 95A of the Act indicates that the deed of reconveyance is
required to be registered and it must be a contemporaneous document along with
the original document of transfer—State Acquisition and Tenancy Act, 1950
(XXVIII of 1951), Section -95A.
Rup Charan
Das and another Vs. Govt. of Bangladesh and others, 16 BLD (HCD)419.
Usufructuary
mortgage
The
transfer of a holding by out and out sale with an agreement for reconveyance is
to be deemed to be a complete Usufructuary mortgage under section 95A of the
Act—State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), Section —95A.
Sree Kamada
Ranjan Bhattacharjee Vs. Kohinur Chowdhury and ors., 17 BLD (HCD) 460
VALUE ADDED
TAX
Value added
tax
Value
Added Tax as introduced in Bangladesh is an indirect tax in place of Sales Tax
and Business Turnover Tax to simplify the taxation system. Under the VAT scheme
the Bangladesh Telegraph and Telephone Board as a registered taxable person has
the authority to collect the value added tax from its subscribers, including
the petitioner, and has the responsibility to deposit the tax thus collected to
the VAT account of the Govern- men t—Value Added Tax Act, 1991 (XXII of 1991),
Sections —3, 5, 15, 31 and 73.
Dr. Ahmed
Husain Vs. Chairman, Bangladesh Telegraph and Telephone Board, Dhaka and
others, 18 BLD (HCD) 477.
Value added
tax
A
credit mechanism has been created under Section 9(1) of the Act for a taxable
person to recover the tax that has been charged on the imputes coming from
business. Any excess payment of the tax only leaves that amount of money
temporarily in the hands of the Government. It must be paid back to the taxable
person at the appropriate time—Value Added Tax Act, 1991 (XXII of 1991),
Sections —9(1).
Dr. Ahmed
Husain Vs. Chairman, Bangladesh Telegraph and Telephone Board & ors., 18
BLD (HCD) 477.
Value Added
Tax
To
understand the legal provisions of the VAT Act or to ascertain the meaning of a
particular section of the Act recourse should be had to all the relevant
provisions of the VAT Act and no particular section of the Act should be relied
upon isolated. It is only from a proper understanding of the scheme as
contemplated in the VAT Act a correct interpretation of a certain section may
be given.
Dr. Ahmed
Husain Vs. Chairman, Bangladesh Telegraph and Telephone Board, Dhaka and
others, 18 BLD (HCD) 477.
VESTED
PROPERTY
Vested
Property
Ordinance
No. 92 of 1976 contains a saving clause for protecting the existing proceedings
and lists in respect of vested and nonresident properties. Excepting this
saving clause the vested property law was totally repealed by this Ordinance.
Consequently, treating the suit property as a vested and nonresident property
in the year 1979 by starting a new V.P. Case is absolutely illegal and without
jurisdiction—Defence of Pakistan Ordinance (Ordinance 23 of 1965), Defence of
Pakistan Rules, 1965, Enemy Property (Land and Buildings) Administration and
Disposal Order, 1966.
Additional
Deputy Commissioner (Revenue), Dhaka Vs. Mohammad Mostafa All Mridha and
others, 15 BLD (HCD) 1.
Vested
Property
Laws
relating to enemy property, now vested property, are fairly well settled by the
now by consistent judicial pronouncements by the highest Court of the country.
Property which assumed enemy character and became enemy property during the
relevant period viz; from 6.9.1965 to 16.2.1969, when emergency was formally
lifted, became vested property and the Government may treat such property as
vested property subject to the legitimate rights of the co-owners, co-sharers
and transferees in possession therein. But before a property is treated as
vested property, particularly on the basis of a V.P. Case started long after
the lifting of the emergency on 16th February, 1969 a heavy duty is cast upon
the Government to show that the recorded tenant actually migrated to India
before 1965 and settled there by conducting necessary enquiry into individual
cases, rather than relying on the stray noting of a Thashilder, who is
accountable to none and whose report is yet to be authenticated by any
responsible officer of the Government.
When
challenged in a Court of law, the onus is heavily on the Government to prove
affirmatively that the property in question is a vested property, failing which
some evidence to the contrary is sufficient to take the disputed property out
of the ambit of the enemy property laws. Mere claim Of the Govt. that a certain
property is a vested property without the necessary proof of factual basis has
no validity in the eye of law.
Maran Mondal
being dead his heirs (1) Dayal Chandra Mondal and ors Vs. The Assistant
Custodian of Vested and NonResident Properties (L & B) and ADC (Rev) Dhaka
and ors, 18 BLD (HCD) 21.
VESTED RIGHT
Lessee’s
vested right In the land acquired by lease
In
a case in which lease of land was for a term of 30 years with successive
renewals for a term of 30 years in perpetuity, the lease has a vested right in
the land acquired by him under the lease by constructing a three storied
building thereon as required under the lease which cannot be interfered with.
Abdul Mannan
Chowdhury Vs. Bangladesh and others, 13 BLD (HCD) 557.
Vested Right
When
a law creates a vested right, it cannot be taken away by giving a retrospective
effect to the law brought by a subsequent enactment unless and until a clear
intention of the legislature is expressed in the new law itself. Only in a case
of procedural law a retrospective effect can be given General Clauses Act, 1897
(X of 1897), Section-6(c).
Khondaker
Badiuzzaman Vs. General Manager, Bangladesh Krishi Bank, 14 BLD (HCD) 151.
Vested Right
The
notification issued under section 19 of the Act was without any condition,
limitation or restriction and as such the subsequent notifications cannot have any operation when a right had vested in
the importers and he had acted upon the assurance of the Government that he
would have to pay customs duties at the rate mentioned in the previous
notification and as such the right vested in him could not be taken away. It
was nowhere mentioned in the notification that the delivery of the bill of
entry will be a determining factor—Customs Act, 1969 (TV of 1969), Section—19.
Mostafizur
Rahman Vs. Govt. of Bangladesh and ors., 18 BLD (AD) 219.
Vested right
The
tender floated by the House Building Finance Corporation for. the sale of a mortgaged
property, has to be accepted or the purpose of concluding a contract. The
alleged information by a nominated officer cannot be a proper communication of
acceptance by the Corporation. The tenderer acquired no vested right on the
property merely because his tender ,for that property had not been rejected and
his earnest money had not been refunded by the Corporation. As there was no
definite communication of acceptance of tender by the Corporation no vested
right was acquired by the plaintiff—Contract Act, 1872 (1X of 1872), Sections—3
and 4.
Sahana
Chowdhury (widow) and others Vs Md Ibrahim Khan and another, 21 BLD (AD) 79
VILLAGE
COURT
Village
Court
Section
3 of’ Village Court Ordinance 1976 has conferred exclusive jurisdiction on the
Village Court in all Civil matters specified in Part 11 of the Schedule of the
Ordinance. A civil courts has power to see whether the Tribunal was constituted
according to law or whether it followed the provisions of law and observed the
fundamental Judicial Procedure.—Village Court Ordinance, 1976 (Ordinance more.
No. LXI of 1976), Section 3.
Md. Siddiqur
Rahman and another Vs. Md. Goljar Ali Mondal, 13 BLD (HCD) 603.
Village
Court
Section
3 of the Village Courts Ordinance clearly ousts the jurisdiction of the civil
Court in respect of all matters specified in Part II of the Schedule—Village
Courts Ordinance, 1976, Sec tion—3.
Kamaruddin
and others Vs. Aftabuddin Ahmed and others, 14 BLD (HCD) 134.
WAIVER
Waiver
If
a master n discovering that his servant has been guilty of misconduct which
would Justify dismissal elects to continue him, he cannot dismiss him on
account of that which he has waived—Employment of Labour (Standing orders) Act,
1965(Act VIII of 1965).
Bank of
Credit and Commerce (Overseas) Limited V. Tajul Islam Chowdhury and another, 13
BLD (AD) 88.
Waiver
As
the petitioner received from the Mill authorities full gratuity ‘and provident
fund benefits in pursuance of the order of termination it is to be held that he
clearly waived his right to challenge the impugned order of termination.
Md. Abdur
Rahman Vs. Secretary, Ministry of Industries and others, 16 BLD (HCD)324
Waiver
When
the petitioner received from the mill authorities full gratuity and provident
fund benefits in pursuance of the impugned order of termination he clearly
waived his right to challenge the order of termination any more.
Md. Abdur
Rahman Vs. Secretary, Ministry of Industries, People’s Republic of Bangladesh,
Bangladesh Secretariat, Dhaka. 16 BLD (HCD) 524.
Ref:
1990 BLD 153; 18DLR 299; 31 DLR(AD) 234; 40 DLR(AD)45;36 DLR (AD) 282 — Cited.
Waiver—Pre-emption
When
the pre-emptor took a leading part in bringing about the transaction by
assisting the sellers in selling the land and encouraged the buyers in
purchasing it and himself negotiated the price, the conduct of the pre-emptor
is sufficient to give rise to waiver and acquiescence and as such estoppel
operates against him. (Per A.M. Mahmudur Rahman, I, delivering the majority
judgment)—State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), Section 96.
Most Rokeya
Begum Vs Md. Abu Zaher & org., 20 BLD (AD) 90.
Waiver
There
is absolutely no evidence from the side of the preemptee that there was an
offer to the preemptor and refusal of the same by him or that he himself
negotiated the transaction. The High Court Division without considering the
facts and circumstances relying upon 14BLD(AD)20 and 44DLR(AD)62 wrongly
applied the principle in the instant case. [Per Mahmudul Ami Chowdhury,
(dissenting)j—State Acquisition and Tenancy Act, 1950 (XXVIII of 1951),
Section-96.
Most Rokeya
Begum Vs Md. Abu Zaher & ors., 20 BLD (AD) 90.
Waiver
Principles
of Waiver and Acquiescence.
After
the petitioner received his retirement benefits and also served the company for
2 years on contract basis, he clearly waived his right to challenge the
validity of the order of retirement.
Producers
Milk Co-operative Union Ltd. Vs. Md. Lal Miah and others, 17 BLD (HCD) 189.
Waiver
Mere
knowledge or proposal for transfer is not sufficient to defeat the right of the
preemptor which accrues after the sale is affected. [Per Mahmudul Amin
Chowdhury, J. (dissenting)1—State Acquisition and Tenancy Act, 1950 (XXVIII of
1951), Section—96.
Most Rokeya
Begum Vs Md. Abu Zaher & ors., 20 BLD (AD) 90.
WAKF
Wakf
Section
38 of the Ordinance empowers the Wakf Administrator to summon and enforce the
attendance of the witnesses to examine them, to compel the production of
necessary documents and to issue commissions in the same manner as is available
to a Civil Court under the Code of Civil Procedure.
In
hearing an appeal from the order of the Administrator, the District Judge is
required to decide the disputes regarding the right to the office of the
Mutwalli on hearing the contending parties and after taking necessary evidence.
Section
50 of the Ordinance empowers the Administrator to determine the question as to
whether a particular property is Wakf property or not. Any person aggrieved by
the decision or order of the Administrator may submit a petition to the
District Judge under Section 35(1) of the Ordinance within three months of such
order or decision.
Section
64 of the Ordinance provides that from an order of eviction passed under
subsection (1) of Section 64 of the Wakf Ordinance an appeal lies under
subsection (2) of Section 64 of the Ordinance before the District Judge whose
decision is final.
Section
102 of the Ordinance provides that no decision or order of the Administrator
can be questioned in any Court except as otherwise expressly provided in the
Wakf Ordinance—Wakfs Ordinance, 1962 (I of 1962), Sections-35, 38, 50, 64 and
102.
Afazuddin
and others Vs. Mobarak Ali Munshi and others, 14 BLD (HCD) 24
Wakf
Section
50 of the Ordinance provides that when there is a dispute as to the wakf
character of a property, such a dispute must be raised before the Administrator
of Wakfs and the jurisdiction of the civil court in such cases is expressly
barred. Consequently, the entire proceeding before the learned Assistant Judge
is a coram non judice as he had no jurisdiction to entertain the suit—Wakfs
Ordinance, 1962(1 of 1962), Section —50.
Chairman,
Santosh Islami University Vs. Nil Mahmud and others, 15 BLD (HCD) 542.
Wakf
There
is no bar in the Ordinance that once an application for removal of the
Mutawalli is rejected, a subsequent application under section 32(2) cannot be
filed— Waqf Ordinance 1962 (I of 1962), Section—32
Md. Azizul
Hoq v. The Administrator of Waqf, Government of Bangladesh and others, 22
BLD(HCD) 223
WILL
Will
A
District Delegate has no authority to dispose of a contentious petition for
probate or letters of administration. He has to keep his hands off under
section 286 of the Act whenever a contention as to the grant of probate or
letters of administration is raised. Even in the case of a non-contentious
petition, in case of any doubt. he has to seek direction of the District Judge.
He has, however, no power to reject a non-contentious petition for probate or
letters of administration. Anybody claiming through the testator has a right to
contest the probate proceeding—Succession Act, 1925 (XXXIX of 1925), Sections
-286, 287 and 288.
Haripada
Ghose and another Vs. Gopal Chandra Ghose, 15 BLD(AD)140
Three
witnesses were examined in the case to prove the will. The learned trial Court
without discussing the evidence of these witnesses dismissed the suit by merely
comparing the signatures of the executor by naked eyes. On consideration of the
evidence of the witnesses the High Court Division accepted the execution and
attestation of the will and granted probate—Succession Act, 1925 (XXXIX of
1925), Section -276.
Sree Pratik
Bandhu Roy Vs. Sree Alok Bandhu Roy and others, 16 BLD(HCD)475
Section
213 of the Succession Act is a bar to any right claimed by any person under the
Will unless probate or letters of administration of the Will has been obtained—
Succession Act, 1925 (XXXIX of 1925), Section—213
Subhra Nandi
Majumder Vs. Amar Prasad Bhattacharjee and others, 17 BLD (HCD) 227
WINDING UP
Winding up
The
petitioner who is not even a share holder of the Bulk Management Limited cannot
derive any advantage or minimise any disadvantage from winding up of the
respondent Company and as such he is not competent to file petition for winding
up. Although he is a shareholder of Star Services Limited, which has shares in
the Bulk Management Limited, he cannot be regarded a ‘contributory’ to the Bulk
Management Limited to make him an interested person competent to petition for
winding of the company— Companies Act, 1994 (XVIII of 1994), Section -241.
Mazharul
Hoque Vs. Bulk Management (Bangladesh) Ltd. and others, 16 BLD (HCD) 575.
Winding up
The
company was formed with three persons one of them died and there is a dead lock
between the remaining two so far the business of the company is concerned; both
are making allegations and counter allegations against each other, no Annual
General Meeting or any other meeting has been held since its incorporation
about 14 years ago and no return has been submitted to the Registrar of Joint
Stock Companies. The heirs of the deceased shareholder have not been included
as members of the company. Under the fact and circumstances it is just and
equitable that the Company should be wound up as there is a complete dead lock
between the share holders, who are also directors—Companies Act, 1994 (XVIII of
1994), Section-241(ii)(vi).
S M M Yusuf
Vs. Bismilalh Shipping Lines (Pvt) Ltd., 20 BLD (HCD) 517.
Winding up
From
the affidavit-in-opposition it appears that the Company has not specifically
denied the claim of the petitioner and as such it is deemed to have been
admitted. Moreover, there is no statement in the affidavit-in opposition that
the claim of the petitioner has since been paid off. Notice as required under
section 242 of the Act has been served upon the Company and as such the Company
is unable to pay its admitted debt and it is liable to be wound up—Companies
Act, 1994 (XVIII of 1994), Sections—241 and 242.
M. A. Gaffar
Ltd. Vs. Sunjari Garments (pvt.) Ltd., 20 BLD (HCD) 477.
Winding up
The
winding up of a bank can only be done as provided under sections 64 and 65 of
the Bank Company Act 1991 and not at the instance of the writ petitioner in an
indirect manner—Bank Company Act 1991 (Act XIV of 1991), Sections—64 and 65.
BRAC v.
Professor Mozaffar Ahmed and others, 22 BLD (AD) 41.
Winding up
Proceedings
of winding up under the Companies Act in a different forum, is altogether
different from the proceedings under Chapter XVIII of the Negotiable
Instruments Act. While section 138, 139, 140, 141 of Negotiable Instruments Act
purports to impose penalties in case of dishonour of cheques, object of a
petition for winding up of a company is to pay its debts out of its realizable
assets—Companies Act, 1994 (XVIII of 1994), Section—241 (v).
Mr. Amir
Hossain V. Homeland Footwear Ltd. and others, 22 BLD (HCD) 641.
WITHDRAWAL
OF SUITS
Withdrawal
of suit
It
provides a discretion to the Court to allow or reject an application for
withdrawal of a suit with permission to sue afresh. But this discretion must be
exercised judicially in accordance with established judicial norms— Code of
Civil Procedure, 1908 (V of 1908), Order XXIII Rule 1(2),
Md. Imran
Hossain Momin Vs. Md. Amir Hossain and others, 16 BLD (HCD)624.
Withdrawal
of a suit for formal defect
The
expression “formal defect” as used in Rule 1(2) of Order 23 connotes a defect
not affecting the merit of the suit but it is a defect of form which is
prescribed by rules of procedure. Before granting permission to sue afresh the
court must be satisfied that the suit shall fail by reason of some formal
defect.
Monjurul Huq
Vs. Moinul Huq and others, 15 BLD (HCD) 107.
WITNESS
Witness
The
Court, musty express and record that it is necessary to examine any person
other than a party to the suit after the court has found it necessary to
examine such a person, the court of its own motion will cause such a person to
be summoned as witness—Code of Civil Procedure f 908 (Act V of 1908), Order XW
Rule 14.
Char
Chandpur High School vs. Nurul Alam and others, 13 BLD (HCD) 245.
Demeanor of
Witness
The
Court, is not permitted to make remark about the demeanor of a witness after
examination of the witness and after the deposition was read over and signed
but permits a judge to make such remark in the body of the judgment—Code of
Civil Procedure 1908 (Act V of 1908), Order 18, Rule 12.
Barkat Ali
Vs. Messers Commerce Bank Ltd. at present Agrani Bank, 13 BLD (HCD) 530.
Witness
Death
of a witness after examination in chief
When
a witness died after he had been examined in-chief and before his
cross-examination, his evidence is admissible but degree of weight attached to
it will depend on the circumstances of the case.
Chowdhury
Miah Vs. Dhanindra Kumar Shil and others, 13 BLD (HCD) 216.
Examination-in-chief,
Cross-examination and Re-examination
The
object of examination-in-chief is to elicit from the witness all material facts
within his knowledge relating to a case of the party calling him to the witness
box. The adverse party has then the right to examine the witness the object of
which is twofold: to weaken, qualify or destroy the case of the opponent and to
establish the case of the cross-examining party by impeaching the credibility
and th general value of the evidence given in examination-in-chief. Where there
is no ambiguity’ or uncertainty in the statement of a witness, a prayer for
re-examination of a witness with the sole object of giving a chance to the
witness to destroy the effect of cross- examination cannot be allowed—Evidence
Act, 1872 (1 of 1872) , Section—138.
Ihteshamur
Rahman Vs. Most. Masuda Khatun and others, 18 BLD (HCD) 134.
Recall a
witness
The
Court can re-call a witness even while considering the judgment, if any
ambiguity or omission is noticed. The power can be exercised suo motu and also
at the instance of a party—Code of Civil Procedure 1908 (V of 1908), Order IX,
Rule 9 read with Order XVIII, Rule 17.
Md. Hanif
Ali v. Hajera Khatun & ors.,22 BLD (HCD) 217.
Recall of
witness
Under
Order XVIII Rule 17 C.P.C. the Court has ample power to recall at any stage of
the proceeding any witness who has earlier been examined. The powers under this
Rule are very wide. The Court can recall a witness even while considering its
judgment, if any ambiguity or omission is noticed. This power can be exercised
even suo motu for effective and complete adjudication of disputes—Code of Civil
Procedure, 1908 (V of 1908), Order XVIII Rule 17.
Md. Morsalin
and others Vs. Md. Nurul Huda and others, 16 BLD (HCD) 18.