CIVIL PROCEDURE CODE

Definition of Order: According to section 2(14) of the CPC, ‘Order’ means the formal expression of any decision of a Civil Court which is not a decree.

Definition of Decree: according to section 2(2), ‘Decree’ means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-

  1. a) any adjudication from which an appeal lies as an appeal from an order, or
  2. b) Any order of dismissal for default.

Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.

Similarities between decree and order:

  1. Both decisions are given by Civil Court.
  2. Both are formal expressions of a decision.
  3. Both decisions are given in the matter of controversy between the parties of a suit.

Distinction between order and Decree:

  1. A decree conclusively determines the rights of the parties, while order being formal expression of petition, if it does not determine the party’s right can only be made in a suit.
  2. A decree can only be passed where the suit is commenced by presentation of a plaint, while order may be given when filed a petition or application in a suit.
  3. Normally in a suit only one decree is passed, while in a suit or more than one order may be passed.
  4. Every decree is appealable, whereas only orders under Order 43 are appealable.
  5. A decree may be preliminary or final or partly preliminary partly final. Whereas there is no division of orders.
  6. judgment debtor: “Judgment-debtor” means any person against whom a decree has been passed or an order capable of execution has been made.
  7. Attachment before Judgment: The object of attachment before judgment is to prevent any attempt of the defendant to defeat the realization of the decree that may be passed against him. It is an order to restrain the defendant from disposing of his property or the subject matter in dispute. When the Court orders for attachment of any property or the property in dispute before the final judgment of the Court, it is called attachment before judgment.

Court’s power of attachment before judgnent: in exercise of its inheret power under section 151, at the same time, circumscribed by the conditions set down in order 38, rule 5 of the CPC.

  1. Cause of Action: ‘Cause of action’ is not defined in the CPC. It means reason of suit, or grounds of suit, or which gives the plaintiff’s right to relief against the defendant. It is also foundation of suit, upon which causes civil suit is filed, is ”cause of action”. Calculation of limitation starts from the date of cause of action. It may be described as essential facts, which is necessary for the plaintiff to prove in his suit, before the court if he can succeed. It must be antecedent to the institution of the suit and based on it, the suit must have been filed. If the plaint does not disclose a cause of action, the Court will reject such plaint.

Cause of action means every fact which it would be necessary for the plaintiff to prove, in order to support his right to the judgment of the Court.

  1. Issue: Issue in literal meaning is matter or subject of consideration in deciding a case, those important things or materials upon whic the case is decided, is called issue. Order 14 of the CPC deals with issues. Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. Each material proposition affirmed by one party and denied by the other shall form the subject-matter of a distinct issue.

Rule 1(4) enacts that issues are of two kinds, namely-

(a) issues of fact; and

(b) issues of law.

Rule 2 of Order 14 provides that where issues both of law and fact arise in the same suit, notwithstanding that a case may be disposed of on a preliminary issue, the Court should pronounce judgment on all issues. But if the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first, if that issue relates to-

(i) the jurisdiction of the Court; or

(ii) a bar to the suit created by any law for the time being in force.

For that purpose, the Court may, if it thinks fit, postpone the settlement of the other issues until the issues of law have been decided.

The issues are the backbone of a suit. The framing of issues, therefore, has a very important bearing on the trial and decision of a case.

  1. Set off: set off is reciprocal acquittal of debts. In an action to recover money, set-off is a cross-claim for money by the defendant for which he might maintain an action against the plaintiff and which has the effect of extinguishing the plaintiff’s claim. In other words, set-off means a claim set up against another. It is a type of cross-claim which partly offsets the original claim. It is the extinction of debts of which two persons are reciprocally debtors to one another by credits of which they are reciprocally creditors to one another. Where there are mutual debts between the plaintiff and the defendant, one debt may be settled against the other. Rule 6 Order 8 of the CPC deals with set-off, its effect and conditions.

Illustration:

A sues against B for the recovery of Tk. 10,000. But B, at the first hearing of the suit claims Tk. 1,000 against A. These two demands both being definite pecuniary demands may be set off.

Conditions of set-off:

A defendant may claim set-off if the following conditions are satisfied:

  1. the suit must be one for recovery of money;
  2. the sum of money must be an ascertained amount;
  3. such sum must be legally recoverable;
  4. it must be recoverable by the defendant or all the defendants, if there are more than one;
  5. it must not exceed the pecuniary jurisdiction of the court in which it is brought;
  6. both the parties must fill, in the defendant’s claim to set-off, the same character as they fill in the plaintiff’s suit;
  7. the claim must be made at the first hearing unless permitted by the court to do so afterwards.

g.Legal Representative: section 2 (11) of the CPC gives the definition of the term ‘legal representative’. It provides that ‘legal representative’ means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued.

The definition as abovementioned only contemplates the ideas but does not create any responsibilities at all. However, three types of people may come under delimination of legal representative:

  1. i) persons upon whom the property of the deceased devolves after his death, i.e. Heirs, legatees, executors of wills, administrators of estates, etc.
  2. ii) persons who become involved with the estate or the part of the estate of the deceased but does not become the owner of the property, i.e. , there may be representative to run a suit on behalf of a dead person.

iii) those, upon whom the right to office of the deceased devolves, i.e. mohant,shebayet, etc.

  1. Mesne profits: According to section 2(12), ‘mesne profits’ of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits but shall not include profits due to improvements made by the person in wrongful possession.

The person in wrongful possession and the enjoyment of immovable property is liable for mesne profits. So mesne profit can be claimed regarding immovable property only. Thus, a decree for mesne profits can be passed against a trespasser, or against a person against whom a decree for possession is passed.

  1. Substituted service: Order 5 rule 20 of the CPC deals with substituted service. It is stated that,
  2. Pleadings: A civil suit starts with the presentation of plaint and for the purpose of defending the defendant submits the written statement. Order vi Rule 1 in this regard stipulates that pleading shall mean the plaint or written statement. In other words, the plaintiff’s pleading is his plaint and the defendant’s pleading is his written statement.
  3. Mandatory injunction: Mandatory injunction is a judicial process or order of the Court whereby a party is ordered to do a particular thing in preventing the breach of obligation. Section 55 of the Specific Relief Act, deal with mandatory injunction. It is stated that when, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of requisite acts.
  4. Ex-parte Decree: No definition of ex-parte decree is given in the CPC. An ex-parte decree is a decree passed in the absence of the defendant(in absenti). Where on the day called on for hearing the plaintiff appears but the defendant doesn’t appear and the defendant is duly served, the court may hear the suit ex-parte and thenceforth, pass a decree against the defendant. This rule is laid down in Rule 6 of Order 9 of the CPC.

Grounds or conditions of ex-parte decree: According to rule 6 of order 9 before passing an ex-parte decree the following conditions must be fulfilled:

  1. the court must satisfy itself that the summon has been served duly on the defendants and the defendants have intentionally avoided appearance in the court.
  2. if the court finds that the first summon was not duly served to the defendants, the court shall direct a second summons to be issued and served on the defendant.
  3. where it is owing to the plaintiff’s default that the summons was not duly served or was not served in sufficient time, the court shall order the plaintiff to pay the costs occasioned by the postponement.
  4. the court while passing an ex parte decree must take evidence of the plaintiff by affidavit or otherwise, because pleadings are not evidence.

Remedies to defendant of exparte decree:

The remedies open to the defendant in the case of exparte decree are as follows-

  1. he may file application for setting aside the exparte decree under Order 9 Rule 13;
  2. he may file appeal against exparte decree under sec 96.
  3. he may bring regular suit for setting aside the decree on the ground of fraud or wand of jurisdiction under section 44 of Evidence Act.
  4. review lies against exparte decree under order 47 rule 1 of the CPC.
  5. Receiver: the term receiver has not been defined in the CPC. According to Ker, he is an impartial person appointed by the Court to collect and receive, pending proceedings, the rents, issues and profits of land or personal estate, which it does not seem reasonable to the Court either party should collect or receive or for enabling the same to be distributed among the persons entitled. In other words, he is an indifferent person between the parties to a cause, appointed by the Court to receive and preserve the property or fund in litigation when it does not seem reasonable to the Court that either party should hold it. Section 94(e) and order 40 of the CPC deals with the provisions of receiver.

Question 3: how a civil suit is instituted? What are the pleadings? What are the essential ingredients of plaint and written statement?

Answer:

Institution of civil suit: A civil suit is instituted with the presentation of plaint by the plaintiff. Section 27 of the CPC specifies that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Plaint is to be submitted to the proper court with proper jurisdiction as per rules in Order 7 of the CPC. Proper jurisdiction means that firstly the concerned court must have local jurisdiction of the suit; secondly, the concerned court must have pecuniary jurisdiction of the suit.

Pleadings: A civil suit starts with the presentation of plaint and for the purpose of defending the defendant submits the written statement. Or VI Rule 1 in this regard stipulates that pleading shall mean the plaint or written statement. In other words, the plaintiff’s pleading is his plaint and the defendant’s pleading is his written statement.

Particulars of plaint: Rule 1 Order 7 of the CPC provides that the plaint shall contain the following particulars-

  1. a) The name of the Court in which the suit is brought;
  2. b) The name, description and place of residence of the plaintiff;
  3. c) The name, description and place of residence of the defendant, so far as they can be ascertained;
  4. d) Where the plaintiff or the defendant is a minor or person of unsound mind, a statement to that effect;
  5. e) The facts constituting the cause of action and when it arose;
  6. f) The facts showing that the court has jurisdiction;
  7. g) The relief which the plaintiff claims;
  8. h) Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and
  9. i) (xi) a statement of the value of the subject matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits.

Particulars of written statement: Order 8 of the CPC provides that a written statement shall contain the following particulars-

  1. a) A statement in concise form of the material facts on which the defendant bases his defence;
  2. b) All material facts should be stated chronologically;
  3. c) The defendant should reply to all allegations made in the plaint and also raise all points of law and facts which show that the suit is not maintainable;
  4. d) All material allegations must be specifically controverted and any such allegation not denied shall be deemed to have been admitted;
  5. e) Each fact alleged in the plaint is required to be taken up separately and it must be stated whether the defendant admit it or denies or does not admit it;
  6. f) If it is a suit for money, the defendant may claim set-off;
  7. g) The defendant may also make counter claim in his defence;
  8. h) Where the defendant relies upon several distinct grounds of defence or set off founded upon separate and distinct facts, they shall be stated separately and distinctly.

Question 4: What is meant by Res-judicata? What conditions are to be fulfilled for applying the principles of res-judicata? Discuss.

Answer:

Res-judicata: The term ‘res judicata’ is Latin in language and has been borrowed from Roman Law. Ballentine in his Law Dictionary defines it as to connote ‘a thing settled by judicial decisions’. According to section 11 of the CPC “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

Conditions of Res-judicata: Section 11 of the CPC embodies the doctrine of res judicata and the conditions for its application are as follows:

  1. i) the matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit either actually or constructively.
  2. ii) the former suit must have been a suit between the same parties or between parties under whom they or any of them claim.

iii) such parties must have been under same title in the former suit.

  1. iv) the court which decided the former suit must be a court competent to try the subsequent suit or the suit in which the issue is subsequently raised.
  2. v) the matter directly or substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit.

Illustration: where in the earlier suit the issues concerned with declaration of title, recovery of khas possession and confirmation of possession, subsequent suit for partition is not barred, i.e. the doctrine of res judicata will not apply (Alekjan v. Chand Mia , 1979 BSCR 535). On the other hand, where the earlier suit for declaration of title was dismissed for failure to prove his case, the plaintiff’s subsequent suit for declaration of title and recovery of possession of the same property is barred under section 11, i.e. doctrine of res judicata will apply and the subsequent suit will not be allowed to continue [Hafijuddin v. Bangladesh, 42 DLR (AD) 57].

Question 5: what do you mean by amendment of pleadings? what are its conditions to grant amendment of pleadings? Up to what stage an application for amendment of pleading can be made in a suit? Can there be an amendment of the pleadings after the judgment bye the trial court is pronounce? Can any plaint be filed during appellate stage?

Answer:

Amendment of pleadings: It is well known that material facts and necessary particulars must be stated in the pleadings. But sometimes it is missed and miss-added due to some reason, in other words, when the necessary facts and particular are not stated in the pleadings wrongly or stated extra mistakenly which are not necessary, then the amendment of pleading is needed. Therefore, the party can amend the pleadings through inserting, changing, altering, substituting, striking out and adding in the pleadings.

Conditions: In accordance with the provisions of order-6, rule 17 of the CPC, the conditions or grounds that regulate the grant of amendment of pleadings is that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

Therefore, the Court will consider the following conditions in allowing an application for amendment of pleadings-

  1. Whether such amendment is necessary for the purpose of determing the real questions in controversy between the parties or not.
  2. Whether such amendment changes the character and nature of the suit or not.

III. Whether such amendment introduces new sorts of case or not.

  1. Whether such amendment substitute one cause of action for another or not.
  2. Whether such amendment is necessary to proper dispose of the case and to ensure the ends of justice or not.
  3. Whether there exist bone-fide belief on the part of the person who comes for the amendment or not.

Up to what stage pleading can be amended: According  to order 6, rule 17 of the CPC, the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such matter and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

Amendment after the pronouncement of judgment: Rule 17 of order 6 of the CPC states that the court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. That means, pleadings can be amended at any time so long as the matter remains under proceeding. On the other hand, after the pronouncement of judgment there exists no opportunity to amend the pleadings as the pronouncement of judgment incates the fact that the matter stands out of the proceedings.

However, under sections 151, 152, 153 of the CPC the court can order for the amendment only in specified circumstances, i. E., sec- 152 permits amendment to any clerical or arithmetical mistakes in the judgment. In Chan Mia and Others v. M. A. Rajput Gosh Bahadur and other [56 DLR (2004) 221] the HCD permitted amendment of the pleading because of mistakes in schedule mentioned in the plaint. In reaching that decision the Division relied on the decisions in Ibrahim Sheikh and others v. Sheikh Alias Ali (29 DLR 81), Sree Narayan Chandra Panda v. Md. Mahbub Ali and others. [9 BLT 2001 (AD) 197].

In conclusion, it can be said that to avoid injustice and errors in judgment and decree due to any bone-fide mistake on the part of any of the parties the court can permit the amendment of the pleadings under sections 151, 152 and 153 of the CPC.

Can any plaint be filed during appellate stage:

Question 7: Discuss situations in which the Court can exercise inherent power under section 151 of the CPC. State in brief when this power can be exercised by the trial Court even though the remedy of appeal is available.

Answer:

situations in which the Court can exercise inherent power : The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and the Court is free to exercise them for the ends of justice or to prevent the abuse of the process of the Court. The reason is obvious. The provisions of the Code are not exhaustive for the simple reason that the legislature is incapable of contemplating all possible circumstances which may arise in future litigation. Inherent powers come to the rescue in such unforseen circumstances. They can be exercised in absence of express provisions in the Code. As Justice Raghubar Dayal said, the inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Thus, this power is necessary in the interest of justice. The inherent power has its roots in necessity and its breadth is coextensive with the necessity.

Section 151 of the CPC saved the inherent powers of the Court. It is stated that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

Therefore, the Court can exercise its inherent power in two cases, namely,

  1. i) to make such orders as may be necessary for the ends of justice;
  2. ii) to prevent abuse of the process of the Court.

Therefore, the terms “for the ends of justice” and “abuse of the process” are very extensive and wide, hence the situations and circumstances are very large in which the Court can exercise its inherent power under section 151 of the CPC.

Though the remedy of appeal is available: there are many cases where the trial Court can exercise the inherent power, though the remedy of appeal is availabe, namely-

  1. I) Enlargement of time;

Ii) Payment of court fees;

Iii) To secure ends of justice;

Iv) To avoid abuse of the process of the Court.

PENAL CODE, 1860

Question 1:

(a) Distinction between theft and extortion:

  1. Section of definition: section 378 of the Penal Code defines “theft”, whereas section 383 of the Penal Code defines “Extortion”.
  2. Definition: whoever, intending to take dishonestly any moveable property out of the, possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft. Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to give donation or subscription of any kind or to deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits “extortion”.
  3. Property: theft can only be committed of moveable property, whereas extortion may be committed of immoveable property as well.
  4. Consent of the owner: In theft the property is taken without the owner’s consent. Whereas, in extortion the consent is obtained by putting the person who is in possession of property in fear of injury to him or any other.
  5. Element of force: in theft, the element of force does not arise. In extortion, the person intimidated is induced to deliver the property.
  6. Punishment: According to section 373 whoever commits theft, shall be punished with imprisonment of either description for a term which may extend to 3years, or with fine, or with both. Whereas, the punishment of extortion is imprisonment for a term which may extend to 3years or with fine or with both according to section 384.

(b) Distinction between robbery and dacoity:

  1. Section of definition: section 390 of the Penal Code defines Robbery, whereas section 391 of the Penal Code defines Dacoity.
  2. Offence: if the offender at the time of committing theft or in order to committing theft or at the time of carrying away property obtained by theft voluntarily causes or attempts to cause to any person death, injury or wrongful restraint; or fear of death, injury or wrongful restraint, it shall be deemed to be robbery. Where robbery is committed by five or more than persons, then it shall be dacoity.
  3. Creation: robbery is an aggravated form of theft and extortion, whereas ,dacoity is an aggravated form of robbery.
  4. Numbers of member: in robbery, the number of offender may be one to less than five. In dacoity, the number of offender must be 5 or more.
  5. Punishment: According to section 392, whoever commits robbery shall be punished rigrous imprisonment for a term which may may extend to 10 years and also fine, committed on the highway between sunset and sunrise, the imprisonment may be extended to 14 years. According to section 395, whoever commits dacoity shall be punished imprisonment for life or rigorous imprisonment for a term which may extend to 10 years and shall also be liable to fine.

(c) Distinction between cheating and criminal misappropriation:

  1. As to possession of property: In cheating deception is practised to get possession of the thing; whereas in criminal misappropriation as in criminal breach of trust, the original reception of property is legal, the dishonest conversion takes place subsequently.
  2. As to intention: In cheating the intent is fraudulently or dishonestly to induce the deceived person to deliver property; whereas in criminal misappropriation the intent is to dishonestly misappropriate or convert property to one’s own use.
  3. As to property: Any property, moveable or immoveable, can be subject matter of cheating; whereas in criminal misappropriation the property misappropriated must be moveable.
  4. As to the mode of obtaining property: In cheating any property is induced to be delivered or any damage or harm is done to property; whereas in criminal misappropriation, the offender is already in possession of property. There is no invasion of possession.
  5. Section: section 415 of the Penal Code defines cheating; whereas section 404 of the Penal Code defines criminal misappropriation.

(d) Distinction between common intention and common object:

  1. Known as: Section 34 of the Penal Code is known as ‘Common intention’ ; whereas section 149 known as ‘common object’.
  2. Number of member: under the provision of section 34 applies where the culprits are two or more, while section 149 applies where the culprits are five or more.
  3. Mode of creation: section 34 does not create any specific offence, but merely lays down principles of joint liability in a criminal act done in furtherance of common intention of the offenders. On the other hand, section 149 creates a specific offence and deals with punishment of that offence alone.
  4. To prove: To hold a person liable under section 34, it should prove that it has a common intention to commit a crime. Whereas to held a person liable under section 149, it should prove that it was a member of an unlawful assembly.
  5. Preplan: in section 34, the concept of ‘Preplan’ is important; whereas in section 149, the concept of ‘Preplan’ is not as important as section 34.

(e) Wrongful confinement and wrongful restraint:

  1. Wrongful confinement is a form of wrongful restraint. It is keeping a man within limits out of which he wishes to go and has a right to go while wrongful restraint is keeping a man out of a place where he wishes to be, and has a right to do.
  2. In wrongful confinement a person is restrained from proceeding in all directions beyond a certain area within which he is confined, but in wrongful restraint he is restrained from proceeding in some particular direction, though free to proceed elsewhere. In other words, there is full restraint in the former, but only partial restraint in the latter. That is to say, the difference between them is only the distinction between obstruction on all sides and obstruction in one direction only.
  3. Wrongful restraint will not be considered where a person obstructs a man in good faith believing him having a lawful right. On the other hand, no question of good faith arises in wrongful confinement.
  4. Wrongful confinement is a more serious offence than wrongful restraint inasmuch as it prescribes punishment with imprisonment, simple or rigorous, extending to one year or fine upto tk. 1000 or both, while wrongful restraint is punishable with simple imprisonment upto one month or with fine upto Tk.500 or both.
  5. Section 339 of the Penal Code says about wrongful restraint, while section 340 says about wrongful confinement.

(f) Distinction between kidnapping and abduction:

  1. Definition: according to section 359 of the Penal Code whoever takes or entices any minor under 14 years of age if a male, or under 16 years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian; is said to kidnap such minor or person from lawful guardianship. Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
  2. Age of victim: Kidnapping takes place only in case of minor that means in case of boys, the age must be under 14 years and in case of girls, the age must be under 16years; or any person of unsound mind. Abduction may be committed in respect of any person of any age.
  3. Concern of the guardian: In kidnapping the concerned minor is taken away from its lawful guardianship; in abduction there is no such question of guardianship.
  4. Consent of the victim: In kidnapping the consent of the minor is immaterial. In abduction if there is free and voluntary consent of the person abducted then there shall not be any offence.
  5. Removal: Kidnapping is simply removal of a minor from lawful guardianship;In abduction force, compulsion or deceitful means are used.
  6. Punishment: Section 363 provides that whoever kidnaps any person from Bangladesh or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to fine. Section 364 provides that kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to 10 years and shall also be liable to fine.

(g) Criminal breach of trust and criminal misappropriation:

  1. In criminal misappropriation the property comes into the possession of the offender by some casualty or otherwise and he afterwards misappropriates it. In the case of criminal breach of trust the offender is lawfully entrusted with the property and he dishonestly misappropriates the same, or willfully suffers any other person to do so, instead of discharging the trust attached to it.
  2. In criminal misappropriation there is no contractual relationship, but there is such a relationship in criminal breach of trust.
  3. In criminal misappropriation there is the conversion of property coming into possession of the offender anyhow, but in criminal breach of trust there is the conversion of property held in a fiduciary character.
  4. Criminal misappropriation can only be of moveable property; whereas criminal breach of trust can be of any property, moveable or immoveable.
  5. A breach of trust includes criminal misappropriation, but the converse is not always true.

(h) Distinction between unlawful assembly and riot:

There is slight difference between unlawful assembly and rioting. Rioting is an aggravated form of unlawful assembly. There is close resemblance between them. In both the offences, common object is an essential ingredient, and there must be five or more persons. Their difference is degree rather than of form.

Unlawful Assembly:

  • Sec. 141 defines “Unlawful Assembly”.
  • Punishment is lighter than rioting. Punishment for unlawful assembly is six months imprisonment, or with fine, or with both. (Sec. 143).
  • The offence of unlawful assembly is genus.
  • Violence and force are less.

Rioting:

  • Sec. 146 defines “Rioting”
  • Punishment for rioting is severe than unlawful assembly. Sec. 147 imposes punishment for rioting two years imprisonment, or with fine, or with both.
  • Rioting is a species Rioting is an aggravated form of unlawful assembly.
  • Violence and force are more in rioting.

Question 2: define culpable homicide. When culpable homicide is treated as murder? When cause of death does not amount to culpable homicide offence under section 304A of the Penal Code? Discuss.

Answer:

Culpable homicide: section 299 of the Penal Code, 1860, defines culpable homicide as under- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

When culpable homicide is murder: Culpable homicide amounting to Murder is stated in section 300 of Penal Code, 1860.

Section 300 provides that, except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-

Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Illustration: A shoots Z with the intention of killing him, Z dies in consequence. A commits murder.

When cause of death: Section 304A of the Penal Code states that when cause of death does not amount to culpable homicide but it constitutes an offence under section 304A of the Penal Code. It is provided that, whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide.

Question 3: Can an accused be punished for both the offences in a single trial?

Answer: Yes, an accused can be punished for both the offences in a single trial in accordance with the provisions of section 235 and 237 of the Code of Criminal Procedure, 1898.

Question 4: Explain with illustration “cheating by false personation”.

Answer:

Cheating by Personation: Section 416 of the Penal Code deals with cheating by personation. It is stated that a person is said to “cheat by personation” if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is.

Explanation: the offence is committed whether the individual personated is a real or imaginary person.

Ingredients of cheating by personation: the ingredients of cheating by personation are as follows-

  1. Pretension by a person to be some or other person.
  2. knowingly substituting one person for another.
  3. Representation that he or any other person is a person other than he or such other person really is.

It is noted that offence under section 419 of the Penal Code (punishment for cheating by personation) is not punishable unless the person concerned suffers either in mind, body or reputation. [Case- Syed Mosharf Hossain v. The State, 12 DLR, 834]

Expample of cheating by personation: One Meher Ali represented himself as an employee of the local Community Welfare Association and obtained subscription from each household of the area at Tk. 50 each on account of removal of garbage. One Mr. Md. Rahmatullah a retired police officer when approached for subscription suspected Meher Ali and upon some interrogation and local inquiry found that Meher Ali was a fake person and make false representation. Mr. Md. Rahmatullah refused to pay. What offence Meher Ali committed in respect of Mr. Md. Rahmatullah and the rest of the residents of the area from whom Meher Ali succeeded in obtaining the subscription is called the cheating by personation.

Question 5: Discuss “abduction for immoral purpose” specifying relevant section of the Penal Code.

Answer:

Abduction for immoral purpose: Section 372 of Penal Code deals with abduction for immoral purpose. Section 372 of the Penal Code provides that, whoever sells, lets to hire, or otherwise disposes of any person under the age of 18 years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 302 of the Penal Code provides that whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine.

Explanation I: when a female under the age of 18years is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution.

Explanation II: For the purpose of this section “illicit intercourse” means sexual intercourse between persons not united by marriage or by any union or tie which, though not amounting to a marriage, is recognized by the personal law or custom of the community to which they belong or, where they belong to different communities, of both such communities, as constituting between them a quasi-marital relation.

Question 6: What is the right of private defence? To what extent such right of Private defence is available? Discuss.

Answer:

Right of private defence: the right of private defence is based on the principle that, it is the first duty of man to help himself. The right of private defence is founded on the two cardinal principles, namely-

  1. Everyone has the right to defend one’s own body and property as also another body and property. The law does not require him to be cowardly.
  2. The right cannot be used as a presence or justifying aggression for causing harm to another person nor for inflicting more harm than is necessary to inflict for the purpose of defence.

In order to find whether the right of private defence is available or not, the entire incident must be examined with care as viewed in its proper setting.

To what extent such right of Private defence is available:

Section-97: Right of private defence of the body and of property:

Every person has a right, subject to the restrictions contained in section 99, to defend

Firstly.-His own body, and the body of any other person against any offence affecting the human body;

Secondly.-The property, whether moveable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

Section-100: When the right of private defence of the body extends to causing death:

The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:-

Firstly.-Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly.-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

Thirdly.-An assault with the intention of committing rape;

Fourthly.-An assault with the intention of gratifying unnatural lust;

Fifthly.-An assault with the intention of kidnapping or abducting;

Sixthly.-An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

Section-103: When the right of private defence of property extends to causing death:

The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:-

Firstly.-Robbery;

Secondly.-House-breaking by night;

Thirdly.-Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling or as a place for the custody of property;

Fourthly.-Theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised;

Question 7: what are the essential differences between the offence under section 299 and offence under section 300 of the Penal Code? Discuss.

Answer:

Essential differences between the offence under section 299 and offence under section 300 of the Penal Code: The offence defined in section 299 of the Penal Code is called culpable homicide and the offence defined in section 300 of the Penal Code is called Murder. Therefore, the distinction between culpable homicide and murder, that is the essential differences between the offences defined in sections 299 and 300 of the Penal Code are as follows-

  1. Culpable homicide is the genus of which murder is a species.
  2. In order that an offence may amount murder it must full within the ambit of culpable homicide, but an offence may amount to culpable homicide without amounting to murder.
  3. It follows therefore that, all murders are culpable homicide but all culpable homicides are not murders.
  4. The difference between the two offences of culpable homicide and murder is not only fine but real.
  5. Culpable homicide is a generic term. The offence will not amount to murder if the conditions laid down in section 300 are satisfied. If the offence comes under section 299 or under one or other exceptions to section 300, it will be culpable homicide not amounting to murder.
  6. Offence is culpable homicide if bodily injury intended to be inflicted is likely to cause death. Offence will be murder if such injury is sufficient in the ordinary cause of nature to cause death.
  7. When the intention is present to kill, the act amounts to murder. Where such intention is absent, the act amounts to culpable homicide not amounting to murder.
  8. Repeated blows or even a single blow forcibly delivered with a heavy weapon would make the offence a murder. But where a sudden blow is struck with a stick that is not heavy, the offence would be culpable homicide not amounting to murder.

Question 8: ‘Abetment’ what it means? Is it a separate punishable offence? What is the punishment prescribed for the offence of abetment?

Definition of Abetment: the definition of abetment is given in section 107 of the Penal Code. Abetment is constituted-

  1. by instigating a person to commit an offence, or
  2. by engaging in a conspiracy to commit it or by intentionally adding a person to commit it.

Section 107 of the Penal Code provided that, a person abets the doing of a thing, who-

First- Instigates any person to do that thing; or

Secondly- engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in persuance of that conspiracy, and in order to the doing of that thing; or

Thirdly- intentionally aids, by any act or illegal omission, the doing of that thing.

It is noted that anything done under duress or coercion does not constitute an abetment. A person abets by adding when by any act either prior to or at the time of the commission of an act, he intends to facilitate the commission thereof, a mere giving of an aid without any intend rather under threat of life on point of gun, will not make the act an abetment of an offence. [Case- The State v. Makbul Hossain and others, 26 DLR, 419]

Abettor (section- 108): A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.

Explanation 1.-The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.

Explanation 2.-To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.

Is it a separate punishable offence:  No, abetment is not a separate punishable offence. Whoever abets a person to commit an offence and if the offence is committed, the person who abets and who committed offence both will be punishable with the punishment provided for the offence.

Punishment for the offence of abetment:

  • Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment. (Section-109)

Explanation.-An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.

  • Whoever abets the commission of an offence shall, if the person abetted does the act with a different intention or knowledge from that of the abettor, be punished with the punishment provided for the offence which would have been committed if the act had been done with the intention or knowledge of the abettor and with no other. (section-110)
  • When an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it:

Provided the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment. (section- 111)

  • If the act for which the abettor is liable under the last preceding section is committed in addition to the act abetted, and constitutes a distinct offence, the abettor is liable to punishment for each of the offences. (section-112)
  • When an act is abetted with the intention on the part of the abettor of causing a particular effect, and an act for which the abettor is liable in consequence of the abetment, causes a different effect from that intended by the abettor, the abettor is liable for the effect caused, in the same manner and to the same extent as if he had abetted the act with the intention of causing that effect, provided he knew that the act abetted was likely to cause that effect. (section-113)
  • Whenever any person, who if absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence. (section-114)
  • Whoever abets the commission of an offence punishable with death or 36[ imprisonment] for life, shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;

and if any act for which the abettor is liable in consequence of the abetment, and which causes hurt to any person, is done, the abettor shall be liable to imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine. (section-115)

  • Whoever abets an offence punishable with imprisonment shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of any description provided for that offence for a term which may extend to one-fourth part of the longest term provided for that offence; or with such fine as is provided for that offence, or with both;

and if the abettor or the person abetted is a public servant, whose duty it is to prevent the commission of such offence, the abettor shall be punished with imprisonment of any description provided for that offence, for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for the offence, or with both. (section- 116)

  • Whoever abets the commission of an offence by the public generally or by any number or class of persons exceeding ten, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. (section- 117)
  • Whoever intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with death or imprisonment] for life,

voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence or makes any representation which he knows to be false respecting such design,

shall, if that offence be committed, be punished with imprisonment of either description for a term which may extend to seven years, or, if the offence be not committed, with imprisonment of either description for a term which may extend to three years; and in either case shall also be liable to fine. (section-118)

SPECIFIC RELIEF ACT,1877

Question 1: what are the things which are to be proved for obtaining a decree of permanent injunction in respect of an immovable property? What do you mean by temporary, perpetual and mandatory injunction? On what grounds injunction cannot be granted?

Answer:

The things which are to be proved for obtaining a decree of permanent injunction in respect of an immovable property: a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit. The defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff. Perpetual injunction when granted or the things which are to be proved for obtaining a decree of permanent injunction in respect of an immovable property are stated in section 54 of the Specific Relief Act. Section 54 of the Specific Relief Act provided that subject to the other provisions contained in, or referred to by, this Chapter, a perpetual injunction may be granted the breach of an obligation existing in favour of the applicant, whether expressly or by implication.

When such obligation arises from contract, the Court shall be guided by the rules and provisions, contained in Chapter II of this Act.

When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases, namely-

(a) Where the defendant is trustee of the property for the plaintiff;

(b) Where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; [Hossain Ahmed v. H.D. Hossain & brothers, 32 DLR 1980|

(c) Where the invasion in such that pecuniary compensation would not afford  adequate relief; [Ferguson v. Ameer Rasheed Ch, 25 DLR 1973]

(d) Where it is probable that pecuniary compensation cannot be got for the invasion; [Bazlur Rahman v.Jan Mohammad, 37 DLR 1985]

(e) Where the injunction is necessary to prevent a multiplicity of judicial proceedings.

Explanation: For the purpose of this section a trademark is property. [Badsh Miah v. Tofael Ahmed Ch, 42 DLR 1990]

According to Specific Relief Act there are three kinds of injunctions, namely-

(a) Perpetual or permanent injunction;

(b) Temporary injunction;

(c) Mandatory injunction.

Perpetual or permanent injunction: Aiyer said an injunction granted upon the final trial is called perpetual injunction. In other words a perpetual injunction is one granted by the judgment which finally disposes of the injunction suits and shall remain in force until vacated by the order of the Court. It is noted that it is granted only after plaintiff has established his right and the actual or threatened infringement of it by the defendant.

Temporary Injunction: Section 53 of the Specific Relief Act provided that temporary injunctions are sch as are to continue until a specified time, or until further order of the Court. It is granted before the trial of an action. Temporary injunction is regulated under order 39 rule- 1 and 2 of the Code of Civil Procedure 1908.

Mandatory injunction: Salmon said a mandatory injunction is an order requiring the defendant to do a positive act for the purpose of putting an end to a wrongful date of thing created by him, or otherwise in fulfillment of the legal obligations, for example an order to pull down a buildin which he had already erectted to the obstruction of the plaintiffs right. It is granted under section 55 of the Specific Relief Act.

Injunction when refused: Injunctions when refused that is stated in section 56 of the Specific Relief Act 1877. Section 56 of the Specific Relief Act provided that an injunction cannot be granted –

  1. a) to stay a judicial proceeding pending at the institution of the suit in which the injunction is sought ,unless such restraint is necessary to prevent a multiplicity of proceedings;
  2. b) to stay proceedings in a Court not subordinate to that from which the injunction is sought;
  3. c) to restraint persons from applying to any legislative body;
  4. d) to interfere with the public duties of any department of the Government, or with the sovereign acts of a Foreign Government. [Janab Ali and Others v. Ariu Miah and others, 45 DLR]
  5. e) to stay proceedings in any criminal matter; [Jamalpur Fisherman’s Co-operative Society Ltd v. Kishoreganj and other ,47 DLR]
  6. f) to preven the breach of a contract the performance of which would not be specifically enforced;
  7. g) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
  8. h) to prevent a continuing breach in which the applicant has acquiesced;
  9. i) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
  10. j) when the conduct of the applicant on his agents has been such as to disentitle him to the assistance of Court;
  11. k) where the applicant has no personal interest in the matter.

Question 2: what is meant by specific performance of contract? In which situations will the Court refuse to pass a decree for specific performance of contract?

Answer:

Specific performance of contract: specific performance means the definite presentation of the contract. Parties to a contract want to comply with the exact treaty or deal. But subsequent to the contract, either party to the contract may not be agreed or may refuse to perform his part of the contract, in this case, the Court by its discretionary power can pass a decree for specific performance of contract and can direct the either party to contract to perform his contract specifically, this is called specific performance of contract. However, the cases in which the specific performance of contract is enforceable are provided in section 12 of the Specific Relief Act.

[Section 12 states that-  Except as otherwise provided in this Chapter, the specific performance of any contract may in the discretion of the Court be enforced-

(a) When the act agreed to be done is in the performance, wholly or partly, of a trust;

(b) when  there exists no standard for ascertaining the actual damage caused by non-performance of the act agreed to be done;

Illustration: A agrees to buy, and B agrees to sell, a picture by a dead painter and two rare china vases. A may compel B specifically to perform this contract, for there is no standard for ascertaining the actual damage which would be caused by its non-performance.

(c) When the act agreed to be done is such that pecuniary compensation for its non-performance would not afford adequate relief;

Illustration: A contracts to sell, and B contracts to buy, a certain number of railway-shares of a particular description. A refuses to complete the sale. B may compel A specifically to perform this agreement, for the shares are limited in number and not always to be had in the market, and their possession carries with it the status of a share-holder, which cannot otherwise be procured.

(d) when it is probable that pecuniary compensation cannot be got for the non-performance of the act agreed to be done.

Explanation – Unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immoveable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer moveable property can be thus relieved.]

In which situations will the Court refuse to pass a decree for specific performance of contract:

The cases in which the specific performance of contract is not enforceable or the Court refuses to pass a decree for specific performance of contract are provided in section 21 of the Specific Relief Act. Section 21 states that-

The following contracts cannot be specifically enforced:–

(a) a contract for the non-performance of which compensation in money is an adequate relief;

(b) a contract which runs into such minute or numerous details, or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms;

(c) a contract the terms of which the Court cannot find with reasonable certainty;

(d) a contract which is in its nature revocable;

(e) a contract made by trustees either in excess of their powers or in breach of their trust;

(f) a contract made by or on behalf of a corporation or public company created for special purposes, or by the promoters of such company, which is in excess of its powers;

(g) a contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date;

(h) a contract of which a material part of the subject- matter, supposed by both parties to exist, has, before it has been made, ceased to exist.

And, save as provided by the Arbitration Act, 1940, no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract other than an arbitration agreement to which the provisions of the said Act apply and has refused to perform it sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.

Question 3: When can a suit under section-9 of the Specific Relief Act be filed? What are the advantages of filing a suit under this section? Against whom such a suit cannot be filed?

Answer:

when can a suit be filed under section 9 of the Specific Relief Act: in accordance with the provisions of section 9 of the Act, if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other title that may be set up in such suit.

However according to the provision of article 3 to the first schedule of the Limitation Act, a suit under section 9 of the Specific Relief Act be filed within 6 months of the dispossession.

What are the advantages of filing a suit under this section: There are some advantages of filing a suit under section 9 of the Specific Relief Act, namely-

(i) the plaintiff has not to prove his title over the suit property, in a suit under section 9 of the Act,

(ii) the plaintiff has only to prove his previous possession over the suit property or he was in possession of the suit property, in a suit under section of the Act;

(iii) the plaintiff has only to pay half of the ad-valorem Court fees, in a suit under section of the Act;

(vi) any order or decree passed in a suit under section 9 of the Act, is neither appeal-able nor reviewable.

Against whom such a suit cannot be filed: In accordance with the provisions of Section 9 of the Act, no suit under this section shall be brought against Government.

Question 4: what do you mean by cancellation of an instrument? Who can seek cancellation of an instrument? On what grounds he can seek such cancellation? What essential point are required to be proved by the plaintiff in order to succeed in a suit for cancellation of an instrument? Mention the specific provision of law for cancellation of the registered instrument when the plaintiff is a party to it. In such a case, can the plaintiff maintain a suit for a mere declaration that the instrument in question is forged one and as such it is not binding upon him?

Answer:

cancellation of an instrument: Cancellation of an instrument means an instrument which is not legal or enforceable by law, when an instrument is void or voidable, than the Court can declare that this instrument is null and is of no legal effect that is called cancellation of an instrument.

Who can seek cancellation of an instrument: According to section 39 of the Specific Relief Act that any person against whom a written instrument is void or void-able, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

If the instrument has been registered under the Registration Act, 1908, the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.

On what grounds he can seek such cancellation: on the following grounds any person can seek cancellation of an instrument, namely,

(a) The instrument is void or void-able.

(b) There is reasonable apprehension that such instrument, if left outstanding, may cause him serious injury.

What essential points: In order to succeed in a suit for cancellation of an instrument, the following essential points are to be proved by the plaintiff:

     The instrument is void or voidable.

     There is a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury.

     The court has jurisdiction to cancel that instrument for the ends of justice.

The specific provision of law: the specific provision of law for cancellation of the registered instrument is codified in section 39 of the Specific Relief Act, 1877. However a new law regarding this matter this matter is under processing in the parliament.

Mere declaration: no, a party to a disputed document cannot maintain a suit for a mere declaration that the document in question is a forged one and it is not binding upon. Since he is a party to the disputed document, he should file the suit for cancellation of document under section 39 of the Specific Relief Act, in this case mere declaration is not sufficient. Provided that if the document is registered then the plaintiff has to file a suit under section-39 of the S.R Act-1877 for the cancellation of the said forged document. But if the forged document is not registered then the plaintiff has to file a suit for declaration.

LIMITATION ACT, 1908

Question 1: what do you mean by condonation of delay? Under what section of which law an application may be filed for condonation of delay? In what kind of cases an application for condonation of delay can be filed? Discuss the conditions for petitioner is required to fulfill to apply condonation of delay. Can the court condone an inordinate delay caused by laches on the part of the applicant under the cover of humanitarian consideration or negligence on prosecution?

Answer:

Condonation of delay: According to section 5 of the Limitation Act, if a party fails to prefer an appeal or to make application within the prescribed time, the court may extend that period of limitation, provided that the appellant or applicant must satisfied the court that he had sufficient cause for failure to appeal or apply within the prescribed period. This is called the equitable principle of condonation of delay.

In other words it can be said that condonation of delay means extension of time in filing suit, appeal and application. Section 3 of the Act provides that subject to the provisions contained in section 4 to 25 (inclusive), every suit instituted, appeal preferred, and applications made, after the period of limitation prescribed therefore by the first schedule shall be dismissed, although limitation has not been set up as a defence. But there are some exceptions where the court can extend the period of time for filing the aforesaid suit, appeal and application after the period of limitation prescribed therefore by the first schedule according to the provisions of section 5 of the Limitation Act.

Under what section of which laws an application may be filed for condonation of delay: According to section 5 and 14 of the Limitation Act an application for condonation of delay may be filed. If any party fails to prefer any appeal or to make any application within the prescribed time, then showing the sufficient cause an application may be filed for condonation of delay under section 5 of the Limitation Act.

If any delay has been made bona fide in case of instituting any suit to the court which has not the jurisdiction of disposing such suit, then application for condonation of delay may be filed under section 14 of the Limitation Act.

In what kind of cases an application for condonation of delay can be filed: Section 5 of the Limitation Act is not applicable in case of original civil suit rather it is applicable in the cases of any appeal or application for a revision, a review of judgment or for leave to appeal or any other application. There is a reason that most of the civil suits have to be instituted within 3years to 12 years but any appeal or application for a revision, a review of judgment or for leave to appeal or any other application has a specific time limitation of 6 months. That is why the section 5 is applicable only in those cases.

The conditions for petitioner is required to fulfill to apply condonation of delay: Section 5 of the Limitation Act clearly states the conditions petitioner is required to fulfill to apply for condonation of delay, these are, namely-

  • satisfaction of the court;
  • Sufficient cause.

Satisfaction of the court: It is reasonable and judicial discretion of the Court on being satisfied that reasonable ground is there, to admit or refuse the plea of sufficient cause. Therefore, the extension of time is a matter of concession and cannot be claimed as a matter of right.[case: Ram Lal v. Rewa Coal Fields Ltd, AIR, 1962 SC]

Sufficient Cause: although section 5 of the Limitation Act provides for the requirement of sufficient cause there is no definition of sufficient cause in the Limitation Act, 1908. It is a matter, which completely depends on discretion of the Court and cannot be laid down by hard and fast rules.

In the case of Allah Wasay v. Md. Shakir (10 DLR, 1958), sufficient cause was defined or explained as something beyond the control of the party.

In another case, sufficient cause has been defined as circumstances beyond the control of the party. [case: Ata Ullah Malik v. Custodian of evacuee property (16 DLR 1964, SC, 298)]

It is well settled that, illness of a serious nature or illness of the pleader or bona fide mistake or ignorance may be a sufficient cause to apply section 5. But here it must be proved that the appellant or applicant was utterly disabled to attend to any duty of normal life.

Can the court condone an inordinate delay caused by latches on the part of the applicant under the cover of humanitarian consideration or negligence on prosecution: In this situation the court cannot condone an inordinate delay caused by latches on the part of the applicant under the cover of humanitarian consideration or negligence in prosecuting his case.

The laws of limitation and prescription are based upon the principles that the law aids the diligent and not the indolent and another principle that a man who has negligently slept over his rights for an undue length of time will not be allowed to litigate in respect of them.

The doctrine of limitation is found on considerations of public and expediency, to secure the quiet and repose of the community. It is necessary that the title of property and matters of right should not be in a state of constant uncertainly doubt and suspense. There should be an end of limitation.

According to John Voet, by the law of limitation controversies are limited to a fixed period of time, lest they should be immortal, while men are mortal.

Discussing the object of the law of limitation, story, in his conflict of laws said, statutes of limitation are statutes of repose they proceed the presumption that claims are extinguished or ought to be held extinguished whenever they are not litigated within the prescribed period.

In another decision the court held that the object of the Limitation Act is to quiet long possession and to extinguish state demands.

In the case Devendra Chandra dey nath v. Bharat Chandra Singha (1967) 19 DLR, 514, the Court held that the main purpose of the limitation Act is to guillotine cases which are beyond the period specified thereunder.

So we can say, limitation Act, 1908 is designed specific principles with a view to put a limitation on litigations and it can be safely added that the Act rests upon sound policy and welfare of the society.

Question 2: what do you understand by the expression “the suit is barred by limitation”? In what kinds of legal proceedings under section 5 of the limitation act are applicable? Does it have any applicable ability in a case under special law providing special limitation? If not, why? Whether a court is bound to entertain any application filed under section 5 of the Limitation Act?

Answer:

The suit is barred by limitation: The suit is barred by limitation means the suit is not maintainable which is filed after prescribed period of time arising cause of action. In other words, any suit, appeal or application is not sustainable after the lapse of a definite period, therefore a suit, appeal or application should be filed within the ascertained period of time. For example- Some suits need to file within 12years and some suits need to file within 3 years that means there is a specific time limitation for filing suits. After the expiration of  the said time limitation any civil suit or appeal or any other application shall be dismissed by the court. It is called “the suit is barred by limitation”.

In what kinds of legal proceedings section 5 can be applied: In what kinds of legal proceedings, section 5 of the limitation Act 1908 can be applied for extension of the period of limitation, it is described in section 5 itself of the Act, section 5 provides that any appeal or application for a revision, a review of judgment, or for leave to appeal, or any other application, to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfies the Court, that he had sufficient cause for not preferring the appeal, or making the application within such period.

Explanation: the fact that the appellant or applicant was misled by any order, practice or judgment of the High Court Division, in ascertaining or computing the prescribed period of limitation may be; sufficient cause, within the meaning of this section.

Therefore in the above kinds of legal proceedings section 5 of the Limitation Act 1908 can be applied for extension of the period limitation.

Under a special law: Section 5 of the Limitation Act does not apply in a case under a special law providing special limitation. This provision is discussed in section 29 of the Limitation Act. Section 29 of the Limitation Act states that-

  1. Nothing in this Act shall affect section 25 of the contract Act, 1872.
  2. Where any special law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by the first schedule, the provision of section 3 shall apply, as if such period where prescribed therefore in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special law.
  3. the provisions contained in section 4, section 9 to 18 and section 22 shall apply only in so far as, and to the extent to which they are not expressly excluded by such special law, and
  4. the remaining provisions of this Act shall not apply.
  5. Nothing in this Act shall apply to suits under the Divorce Act.
  6. Sections 26 and 27 and the definition of “easement” in section 2 shall not apply to cases arising in territories to which the Easements Act, 1882, may for the time being extend.

It was held that, from section 29 it would be obvious that section 6 has no application to a question of limitation, where limitation is prescribe by a special law. [Case: Chand banoo v. Abdul sobhan and others PLD 1952]

Whether a court is bound to entertain any application: The Court is not bound to entertain any application filed under section 5 of Limitation Act. However, in case of appeal, review and other miscellaneous cases if delay has been caused, the Court can condone the delay if there is sufficient reason, by its discretionary power under section 5 of the Limitation Act.

It is reasonable and judicial discretion of the Court on being satisfied that reasonable ground is there, to admit or refuse the plea of sufficient cause. Therefore, the extension of time is matter of concession and cannot be claimed as a matter of right.

[Case: Ram Lal v. Rewa Coal Fields Ltd., AIR, 1962 SC]

Bangladesh Legal Practitioners and Bar Council Order and Rules, 1972

Question 1: What is Bangladesh Bar council and how it is constituted? Can it be called as Guardian of Advocates community?

Answer:

Bangladesh Bar Council: Bangladesh Bar Council is an association of all Advocates of Bangladesh. It is statutory central institution of all local Bar Association of Bangladesh. The Bangladesh Bar Council is a Licensing and Regulatory Body constituted under the Bangladesh Legal Practitioners and Bar Council Order, 1972 (President’s Order No. 46 of 1972). It consists of 15 (fifteen) Members of whom the Attorney – General for Bangladesh is one and is the Chairman ex-officio. Others are elected by Advocates for a term of 3 (three) years from amongst themselves, of whom seven from General Seats and seven from seven Zonal or Group Seats. The elected members, in their first meeting, electes from amongst themselves a vice-chairman and different standing Committees, viz- Executive Committee, Finance Committee, Legal Education Committee, Enrolment Committee, etc.

Constitution: the Bangladesh Bar Council is constituted in accordance with the provision of the articles of 5, 6 and 11 of “The Legal Practitioners and Bar Council Order, 1972 (President’s Order No. 46 of 1972)”.

Formation of the Bar Council:

Article -5:

(1) The Bar Council shall consist of fifteen members, of whom-

(a) one shall be the Attorney-General for Bangladesh ex-officio;

(b) seven shall be elected in the prescribed manner by the advocates on the roll from amongst their members; and

(c) seven shall be elected by the Advocates who are members of the Local Bar Associations included in each group under clause (2), from amongst themselves.]

(2) For the purpose of sub-clause (c) of clause (1), the bar associations shall be divided by the Government, by notification in the official Gazette, into seven groups.

Chairman and vice chairman of the Bar Council:

Article-6:

(1) There shall be a Chairman and a Vice-Chairman of the Bar Council.

(2) The Attorney-General for Bangladesh shall be the Chairman ex officio of the Bar Council.

(3) The Vice-Chairman of the Bar Council shall be elected in the prescribed manner by the members of the Council from amongst themselves.

(4) The Chairman and the Vice-Chairman of the Bar Council shall have such powers and functions as may be prescribed.

Standing committee of the Bar Council:

Article- 11:

(1) The Bar Council shall constitute the following standing committees namely:-

(a) an executive committee consisting of five members elected by the Council from amongst its members;

(b) deleted:

(c) a finance committee consisting of five members elected by the Council from amongst its members;

(d) a legal education committee consisting of nine members-five elected by the Council from amongst its members and four co-opted by the Council from persons other than the members of the Council at least two of whom shall be teachers of law in any university or college in Bangladesh.

(2) The aforesaid committees shall have such powers and functions as may be prescribed.

(3) The Bar Council may constitute from amongst its members such other committees as it may deem necessary for the performance of its functions under this Order.

Enrolment Committee of the Bar Council: (see question-2).

Can it be called as Guardian of Advocates community:

The main functions of the Bar Council are –

(i) To admit persons as Advocates on its roll and to hold examinations for the purposes of admission.

(ii) To entertain and determine cases of misconduct against Advocates and to order punishment in such cases.

(iii) To lay down standard of professional conduct and etiquette for Advocates.

(iv) To promote legal education and to lay down standard of such education in consultation with the Universities in Bangladesh imparting such education, etc.

Considering the above mentioned functions it can easily be said that Bar Council is the legal guardian of Advocates.

Question 2: Briefly describe the function of Bangladesh Bar Council including the enrollment committee.

Answer:

Functions of the Bar Council: Functions of the Bangladesh Bar Council described in Article 10 of the Bangladesh Legal Practioners and Bar Council Order.

Article -10 : Subject to the provisions of this Order and the rules made thereunder the functions of the Bar Council shall be-

(a) to admit persons as advocates on its roll, to hold examinations for purposes of admission, and to remove advocates from such roll;

(b) to prepare and maintain such roll;

(c) to lay down standard of professional conduct and etiquette for advocates;

(d) to entertain and determine cases of misconduct against advocates on its roll and to order punishment in such cases;

(e) to safeguard the rights, privileges and interests of advocates on its roll;

(f) to manage and invest the funds of the Bar Council;

(g) to provide for the election of its members;

(h) to lay down the procedure to be followed by its committees;

(i) to promote legal education and to lay down the standards to such education in consultation with the universities in Bangladesh imparting such education;

(j) to perform all other functions conferred on it by or under this Order;

(k) to do all other things necessary for discharging the aforesaid functions.

Enrolment Committee of the Bar Council: Composition and functions of the Enrolment Committee of the Bar Council described in Article 11A of “The Bangladesh Legal Practioners and Bar Council Order 1972″.

Article 11A:

(i) Notwithstanding anything contained in any law for the time being in force or in this Order or Rules made thereunder, there shall be an enrolment committee consisting of following members for the enrolment of Advocates desiring to practice in the High Court Division of the Supreme Court or any other Court subordinate to it-

(a) A Chairman to be nominated by the Chief Justice from amongst the Judges of the Appellate Division;

(b) Two members to be nominated by the Chief Justice from amongst the Judges of the High Court Division;

(c) Attorney General for Bangladesh;

(d) One member elected by the Bar Council from amongst its members.

(ii) The procedure of the enrolment of Advocates and the business of the enrolment committee shall be regulated in such manner as may be determined by it.

Question 3: What punishment can a tribunal of Bangladesh Bar Council impose on an Advocate for committing professional misconduct?

Answer:

The provisions of punishment for professional misconduct have been prescribed in the Bangladesh Legal Practioners and Bar Council Order and Rules, 1972. Which are as follows-

According to Article 32(1) of the Bangladesh Legal Practioners and Bar Council Order and Rules, 1972, an accused Advocate may be punished by the following penalties ,namely-

  1. May be reprimanded.
  2. May be suspended for certain or fixed time.

iii.  May be removed from the profession.

  1. The Bar Council can return the license of the profession.
  2. The Bar Council can set aside or cancel the license of the profession.
  3. The tribunal can give three months simple imprisonment, or

vii. Fine or both.

Question 4:  Enumerate the duties of an advocate to the court and to client as laid down in the cannons of professional conduct and etiquette.

Answer:

DUTY TO THE COURT:

  1. It is the duty of an Advocate to maintain towards the courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance. Judge not being wholly free to defend themselves are peculiarly entitled to receive the support of the Bar against unjust criticism and clamour. At the same time whenever there is proper ground for complaint against a judicial officer, it is the right and duty of an Ad-vocate to ventilate such grievances and seek redress thereof legally and to protect the complainant and persons affected.
  2. An Advocate shall not advise a person, whose testimony could establish or tend to establish a material fact, to avoid service of process, or conceal himself, or otherwise to make his testimony unavailable.
  3. An Advocate shall not intentionally misquote to a judge, judicial officer or jury the testimony of a witness, the argument of the opposing Advocate or the contents of a document; nor shall he intentionally misquote to a judge or judicial officer the language of a book, statute or decision; nor shall he, with knowledge, of its invalidity and without disclosing such knowledge, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional.
  4. Marked attention and unusual hospitality on the part of an Advocate to a judge or judicial officer not called for by the personal relations of the parties, subject both the judge and the Advocate to misconstructions of motive and should be avoided. An Advocate should not communicate or argue privately with the judge as to the merits of a pending cause and he deserves rebuke and denunciation for any device or attempt to gain from a judge special consideration or favour. A self-respecting independence in the discharge of professional duty, without denial or diminution of courtesy and respect due to the Judge’s station, is the only proper foundation for cordial personal and official relations between the Bench and the Bar.
  5. The primary duty of an Advocate engaged in public prosecution is not to convict, but to see that the justice is done. The suppression of facts or the concealing of witnesses capable of establishing the innocence of the accused is highly reprehensible.
  6. Publications in newspapers by an Advocate as to pending or anticipated litigation may interfere with a fair trial in the courts and otherwise prejudice the due administration of justice. Generally they are to be condemned. If the extreme circumstances of a particular case justify a statement or reference to the facts should not reach the public, it is unprofessional to make them anonymously. An exparte reference to the facts should not go beyond question from the records and papers on file in the Court but even in extreme cases it is better to avoid any exparte statement.
  7. It is the duty of Advocates to endeavour to prevent political considerations from outweighing judicial fitness in the appointment and selection of Judges. They should protest earnestly and actively against the appointment or selection of persons who are unsuitable for the Bench and thus should strive to have elevated thereto only those willing to forego other employments whether of a business, political or other character, which may embarrass their free and fair consideration of questions before them for decision. The aspiration of Advocates for judicial position should be governed by an impartial estimate of their ability to add honour to the office and not by a desire for the distinction the position may bring to themselves.
  8. It is the duty of Advocates to appear in court when a matter is called and if it is not so possible, to make satisfactory alternative arrangements.
  9. An Advocate should in general refrain from volunteering his legal opinion on or addressing any arguments in cases in which such Advocate is not engaged unless called upon to do so in open court by a judge or judicial officer. In advancing any such opinion, he must do so with a sense of responsibility and impartiality without any regard to the interest of any party.

CONDUCT WITH REGARD TO CLIENTS:

  1. An Advocate shall not acquire an interest adverse to a client in the property or interest involved in the case.
  2. An Advocate shall not accept employment adverse to a client or former client, relating to a matter in reference to which he has obtained confidential information by reason of or in the course of his employment by such client or former client provided that an Advocate, who has not been formally engaged by a person and accepted a retainer nor received any fees for such engagement is not precluded from accepting employment adverse to the interest of such a person.
  3. An Advocate shall not accept professional employment without first disclosing his relation, if any, with the adverse party, and his interest, if any, in the subject matter of such employment.
  4. An Advocate shall not represent conflicting interests.
  5. An Advocate shall not himself or in benami purchase any property at a probate, foreclosure or judicial sale in an auction or proceeding in which such Advocate appears for a party nor shall he accept the whole or part of the property, in respect of which he had been engaged to conduct the case, in lieu of his remuneration, or as a reward or bounty.
  6. An Advocate shall not commingle the property of a client with his own and shall promptly report to the client the receipt by him of any money or other property belonging to such client.
  7. An Advocate shall not advise the commencement of prosecution or defence of case, unless he has been consulted in reference thereto, except when his relation to a party or to the subject matter is such as to make it proper for him to do so.
  8. An Advocate in his professional capacity shall not advise the violation of any law. This rule shall not apply to advice given in good faith, that a law is invalid.
  9. It is the right of an Advocate to undertake the defence of a person accused of crime, regardless of his personal opinion as distinguished from knowledge, as to the guilt of the accused; otherwise innocent persons, victims merely of suspicious circumstances, might be denied proper defence. Having undertaken such defence, an Advocate, is bound by all fair and honourable means, to present every defence that the law of the land permits, to the end that no person may be deprived of life or liberty except by due process of law.
  10. In fixing fees, Advocates should avoid charges which overestimate their advice and services as well as those which undervalue them. A client’s ability to pay cannot justify a charge in excess of the value of the service, though his property may justify a lesser charge, or even none at all. The reasonable requests of a brother Advocate should also receive special and kindly consideration. In respect of the widows and orphans of an Advocate, all Advocates shall assist them free of charge. In determining the amount of fee, it is proper to consider; (i) the time and labour required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the case; (ii) whether the acceptance of employment in a particular case will preclude the Advocate’s appearance for others in cases likely to arise out of the transaction, about which there is a reasonable expectation that otherwise he would be employed, or will involve the loss of other business while employed in a particular case; (iii) the customary charges of the Bar for similar service; (iv) the amount involved in the controversy and the benefits resulting to the client from the services; (v) the contingency or the certainty of the compensation, and (vi) the character of the employment, whether casual or for an established and constant client. Of these considerations, none in itself is the controlling factor. These are more guidelines in ascertaining the real value of the service. In fixing fees, it should never be forgotten that the profession is a branch of the administration of justice and not a mere money making trade.
  11. Controversies with clients concerning compensation are to be avoided by the Advocate so far as shall be compatible with his self-respect and with his right to receive reasonable recompense for his service. Any law suits with clients should be resorted to only to prevent injustice, imposition or fraud.
  12. Nothing operates more certainly to create or foster popular prejudice against Advocates as a class, and to deprive the profession of that full measure of public esteem and confidence which belongs to the proper discharge of its duties than done the false claim, often set up by the unscrupulous in defence of questionable transactions, that it is the duty of the Advocate to do whatever may enable him to succeed in winning his client’s cause.It is improper for an Advocate to assert in argument his personal belief in his client’s innocence or in the justice of his cause. His professional duty is strictly limited to making submissions at the Bar consistently with the interest of his client.
  13. When an Advocate is a witness for his client except as to merely formal matters, such as the attestation or custody, of an instrument and the like, he should leave the trial of the case to other Advocates. Except when essential to the ends of justice, an Advocate should avoid testifying in court on behalf of his client.
  14. In incidental matters, not affecting the merits of the cause in a trial, nor working substantial prejudice to the rights of the client, such as forcing the opposing Advocate to trial when he is under affliction or bereavement; forcing the trial on a particular day to the injury of the opposing Advocate when no harm will result from a trial at a different time, agreeing to an extension of time for filing written statements, cross interrogatories and the like, the Advocate must be allowed to judge himself. In such matters no client has a right to demand that his Advocate shall be ungenerous or that he does anything therein repugnant to his own sense of honour and propriety.

Question 5: Discuss the constitution of Tribunal under the Bangladesh Legal Practioner and Bar Council Order and Rules, 1972.

Answer:

Constitution of the Bar Council Tribunal: In accordance with the provision of Article-33(1) of “The Bangladesh Legal Practioners  and Bar Council Order and Rules, 1972 ” the Bar Council Tribunal is constituted.

Article-33: (1) The Bar Council may constitute one or more Tribunals and each such Tribunal shall consist of three persons of whom two shall be persons elected by the Council from amongst its members and the other shall be a person co-opted by the Council from amongst the advocates on the roll, and the senior-most advocate amongst the members of a Tribunal shall be its Chairman.

Provided that the Attorney-General for Bangladesh shall not be a member of any Tribunal.

Functions of the Bar Council Tribunal: article 34 describes the functions of the Bar Council Tribunal which are as follows-

(1) In enquires relating to conduct of advocates, a Tribunal shall follow such procedure as may be prescribed.

(2) The Tribunal shall fix a date for hearing of the case and shall cause notice of the day so fixed to be given to the advocate concerned and to the Attorney-General for Bangladesh and shall afford the advocate concerned and the Attorney-General an opportunity of leading evidence, if any, and of being heard before orders are passed in the case.

(3) Notwithstanding anything contained in this Order or any other law for the time being in force, the Chairman of the Tribunal may empower one of the members of the Tribunal to consider and decide preliminary issues and to record evidence.

(4) On completion of the enquiry the Tribunal may either dismiss the complaint or, where reference to the Tribunal was made at the motion of the Bar Council, direct that the proceedings be filed; or it may make an order imposing any of the penalties referred to in clause (1) of Article 32.

(5) Where the Tribunal makes an order for the suspension of an advocate from practice, it shall specify the period of suspension, and for that period the advocate shall be debarred from practising in any court or before any authority or person in Bangladesh.

(6) The Tribunal may make such order as to the costs of proceedings before it as it may deem fit; and where the Tribunal is of the opinion that a complaint made against advocate is false and vexatious, it may, in addition, and without prejudice to any other remedy available to an advocate, impose deterrent costs not exceeding a sum of five hundred rupees upon the complainant, which shall be paid to the advocate as compensation.

(7) Every order of the Tribunal as to costs or deterrent costs shall be executable as an order of the High Court.

(8) The Tribunal may, of its own motion or on application made to it in this behalf, review any order passed under clause (4) or (6) and maintain, vary or rescind the same, as it thinks fit.

(9) When any advocate is reprimanded or suspended under this Order, a record of the punishment shall be entered against his name in the roll and when an advocate is removed from practice his name shall forthwith be struck off the roll; and the certificate of any advocate so suspended or removed shall be re-called.

Question 6: what do you mean by cannons of professional conduct and etiquette? When and how the cannons of professional conduct and etiquette introduce and what are the purposes for framing such rules?

Answer:

Meaning of cannons of professional conduct and etiquette: Cannons of professional conduct and etiquette means those rules and provisions which regulate, maintain, control, determine and ascertain, the duties, responsibilities, rights, dignity, behaviour, approach, offence, procedural machineries, environment, penalty, award , benefit and interest of any profession, particularly advocates who professionly practice the law.

The Bangladesh Legal Practioners and Bar Council Order and Rules, 1972 provided four kinds of responsibilities under its four chapters of the rules, namely-

  1. duties and responsibilities of an Advocate to the Court,
  2. the duties and responsibilities of an Advocate to his client;

iii.  the duties and responsibilities of an Advocate to the fellow Advocate, and

  1. responsibility to the members of the public.

The aforesaid rules are called the Cannons of professional conduct and etiquette for the Advocates who are the members of the Bangladesh Bar Council.

When introduced: Actually the Cannons of professional conduct and etiquette were introduced by the Pakistan Bar Council, after the independence, the Bangladesh Legal Practioners and Bar Council Order and Rules, 1972 was adopted on 17th May, 1972 by the presidential order in order to constitute the Bangladesh Bar Council. Thereafter on 22nd May, the Bangladesh Legal Practitioners and Bar Council Order and Rules, 1972 was enacted and published in the Gazette.

How the Cannons of professional conduct and etiquette introduced: Cannons of professional conduct and etiquette was introduced by the article 44(g) of the Bangladesh Legal Practioners and Bar Council Order and Rules, 1972. Article 44(g) provides that, the Cannons of professional conduct and etiquette framed by the Pakistan Bar Council, shall be deemed to be the Cannons framed by the Bar Council and in those cannons for the word “Pakistan”, whenever occurring, the word “Bangladesh” shall be substituted.

Purposes of framing the cannons of professional conduct and etiquette for the Advocates: the purposes of formulating the cannons of professional conduct and etiquette for the Advocates are as follows-

  1. For implementation of Article 44 of The Bangladesh Legal Practioners and Bar Council Order, 1972.
  2. For making discipline and to habituate the advocates in good behaving and well conduct.

iii.  For creating punctuality among the advocates.

  1. To promote the sound judicial systems and environment.
  2. To encourage the Advocates for maintaining professional conduct.
  3. To improve the professional morality and ethics of the Advocates.

vii. To provide punishment for professional misconduct.

viii.      To evade the harassment of the litigants.

  1. To avoid difficulty among the fellow Advocates.
  2. To uphold the dignity of the judicial system.