Suit for Specific Performance of Contract—petitioner praying for impleading him in the suit as defendant on the ground that he is possessing the suit premise, and also carrying on business in the same as tenant under the vendors. His further contention is that as the vendor left for India as per provision of State Acquisition and Tenancy Act the property vested in the Government—it appears that the High Court Division considered the judgment of the trial court and the case of the present petitioner. It was found b\ the High Court Division that in such a suit the petitioner is not a necessary party as he is a third party. It was also found that in such ac suit only consideration is whether the vendors
have executed ‘Bainapatra’ or not. In the suit, the Government who has allegedly taken over the property has entered appearance and contesting the same. The High Court Division found that in such a situation the presence of the present petitioner in the suit is not necessary—we are of the view that the High Court Division as well as the trial Court rightly rejected the petition filed under Order I Rule 10 read with section 151 of the Code of Civil Procedure.
Md. Abdul Hye Vs. Md. Refiqul Islam Talukder & Ors. 8 BLT(AD)-301.
Order-1 Rule-10 read with
President Order No. 16 of 1972
Allotee is not a necessary party before the Court of Settlement. The necessary party is Ministry of Housing and Public Works.
Dhaka Metropolitan Police Commissioner Vs. Dhaka Land (Pvt.) Ltd. & Ors.9BLT(AD)-64
Principle-addition of a party
Needless to state that the added defendants have direct interest in suit land. Therefore, it cannot be said that the added defendants are neither proper nor necessary parties to the suit. The appearance of the added defendants in the suit were therefore correctly thought necessary by the Court to adjudicate the questions relating to possession of the suit land. Moreover, for any effectual decree for possession that may be passed in the suit, the presence of the added defendants is not only proper but also necessary.
Fulbaria Adarsha Market Dokandar Malik Samity Vs. Fulbria Adarsha Market Khatigrashta Dokander Kallvan Samabava Samitym 9 BLT (HCD)-157.
Addition of Parties
In a suit for specific performance of contract the Court is called upon to determine whether the disputed contract is a lawful one and if it is legally enforceable. The Court is not at all concerned to consider the question of title. A person who is not a party to the contract cannot be added as a defendant in the suit to plead his title.
Shubhoda Ranjan Dutta Vs. Md Yusuf & Ors. 9BLT (HCD)-247
The Court has enough power under Order-1 Rule-10 of the Code to implead any person in the suit at any stage of the proceedings when his presence is found necessary for effective and complete adjudication of the suit. But an applicant claiming title in portion of the suit property acquired during the pendency of the suit, cannot be added as a party in the suit, the question of title being outside the scope
of such a proceeding
Sri Rajeswar Dhar & Anr. Vs. Srimati Anima Chowdhury & Ors. 9BLT (HCD)-332
Belated stage—the application for addition of parties was filed after closing of the examination of the witnesses of the plaintiff —in the instant case the petitioner instituted the suit for rectification of the deed in question. The deed was executed by Abdul Jalil Sk. Abdul Jabbar Sk. and Abdul Gafur Sk. Abdul Gafur died and his heirs have been left out as defendants in the suit. In that view of the matter, the presence of the heirs of Abdul Gafur Sk. is necessary for effectually and completely to adjudicate upon the suit. Therefore, the heirs of the Abdul Gafur Sk. as mentioned in the application are necessary parties in the suit.
Tajem Ali Mridha Vs Md. Khajem Ali Mridha & Ors. 10 BLT(HCD)-365
Under the provisions, a party to a proceeding shall sign the pleading. But when he cannot sign such pleading either for absence or otherwise anyone who is duly authorized by him can sign or to sue or defend on his behalf. If one resides abroad permanently, the provisions of Order III Rule 2 of the Code requires the plaint or such pleading initiating an original proceeding to be signed by a person duly authorized under Order III Rule 2 of the Code, Provisions of order III Rule 2 empowers amongst other a duly constituted attorney to make appearance applications and/or to do acts for and on behalf of such absent party. 12|
Md. Shah Alam Vs. Abul Kalam & Ors. (Civil) 10 BIT (HCD)-22
Order-5 Rules – 17 & 19
In this case. P.W. 2 the process server appeared and testified that summons were duly served. The learned Single Judge of the High Court Division found that apart from the declaration on the return of process server that summons were duly served, notices with acknowledgement dues were posted in the correct addresses of the defendants. The return of acknowledgement dues with postal endorsement clearly showed that notices were refused by the defendants. It is on record that along with service of summons, simultaneously notices with postal acknowledgement dues were sent in the correct addresses of the defendants. Apart from this, the defendants stated that they came to know about the ex parte decree from one Dinabandhu in presence of Rabindra Nath Biswas but curiously enough they said Dinabandhu was not examined by the defendants. The question of taking recourse to Rules 17 and 19 of Order does not arise in the present case.
Nimai Chandra Pal & Ors Vs. Krishna Pada Karmaker & Ors 8BLT(AD)-32
Order-5 Rule-16, 17 & 18 read with
Civil Rules and Order RuIe-69
Onus— it was a case of
service by affixing of copy of the summons as the petitioners (defendants) refused to receive the summons exhibit “A” and on close scrutiny of the exhibit “A” it is found to be not satisfactory which has already been indicated that the date of receipt of the summons by the process server appears to have interpolated and tried to make 01.03.1991 from 02.03.1991- it appears that the Courts below tried to shift the onus upon the petitioner to prove service of the summons but in fact when the petitioner came up with the allegations that the summons were not served in that ease the onus lies upon the persons who supported and claimed the benefit under the exparte decree and have to show that the summons were legally served.
Abul Kashem Vs. Md. Selim & Ors.9 BLT (HCD)-317.
Order-6 Rule-17 read with
Arbitration Act, 1940
Allowing additional claim by amendment for the period during which the matter was pending before the higher courts
Pendentilite interest—the Arbitrators so appointed by the court gave an Award on 12.08.1997 with 16% interest per annum till payment of the Awarded amount and the learned Court made the Award a Rule of the Court with direction to pay the Awarded amount within 30 days, in default, to pay 16% interest till realisation—Held : We find that as per the terms of the Award the petitioner failed to pay the amount
within the stipulated date filing of Bank Guarantee along with the application to set aside the Award does not mean actual physical payment and that 16% interest allowed up to the date when actual payment is made. Furnishing of Bank Guarantee does not relieve the petitioner form payment of interest as per terms of the Award.
University of Dhaka Vs. Associated Engineers & Drillers. 9 BLT (HCD)-214.
Amendment of Pleadings
The settled law for amendment of pleadings is that a prayer for amendment should be considered liberally for bringing all possible controversies between the contending parties in a single suit for complete and effective adjudication of the suit by avoiding multiplicity of litigations.
S. A. A. Abu Shafiq & Ors. Vs. F. E. M Assaduzzaman Khalif. (HCD)-359.
The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such a 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.
Jarina Khatun & Ors.Vs. Gani Howlader & Ors. 9 BLT (HCD)-437.
We observe on scrutiny of the plaint and the evidence that there was not such divergence between the plaint and the evidence which would attract the operation of Order 6 Rule 7 of the Code of Civil Procedure. The farogs stand in the name of the plaintiff and the settlement was taken of the plaintiff and the settlement was taken by the father of the plaintiff. This fact was in the plaint. At the time of trial the plaintiff made out a case that his father had taken the lease for his (plaintiffs) benefits and interest during his infancy. The departure in the evidence from the plaint has not been of such a dimension that the defendants were unfairly taken by surprise. The defendants suffered these evidence to be taken. Evidently this has caused no prejudice to the defendants. Both the parties had all opportunities to lay before the court all their evidence respecting the title and possession of the suit land. In such circumstances the operation of Order 6 Rule 7 of the code of Civil Procedure will not come in.
Kochi Mia Vs.Suruj Mia & Ors 8 BLT (AD)-125
Amendment —it is now well settled that though the allowing of an amendment is discretionary but the same should be exercise judicially in the facts and circumstances of the case and not arbitrarily or for allowing the parties to fill in the lacuna in their pleadings. Before allowing any amendment to the plaint the Court must come to a finding that such amendment is necessary for determining the real question in controversy between the parties and that the same shall not change the nature and character of the suit. In the instant case without any rhyme or reason amendment has been allowed with the omnibus observation that it is necessary for proper adjudication of the suit and that it does not change the nature and character of the suit or the pleading without detailing how and why the amendment is necessary. 16]
Akitullah & Ors Vs. Zafala Begum & Ors. 10BLT (AD)-132
The object of Order VI, Rule 17 of The Code is to aid justice by making it possible for parties who had not framed their in a proper form, to correct the mistake or supply the omissions with a view to bringing to the notice of the Court the real question to controversy in the suit. A provision intended to advance justice cannot by itself be so applied as to cause injustice to other party. Liberal exercise of discretion is to be cheeked by the consideration of likely prejudice causing harm to otherside, particularly when other party suffers loss of valuable right already accrued in its favour. Amendment cannot be permitted as reward on one’s negligence at the cost of right of other.
Haji Md. Siddique Master Vs. Samsul Haque & Ors. 11BLT (HCD)-14
Order-6 Rule 17
In view of the plaint, the Question at which the parties likely to be at variance are which of the handing agents is liable to pay as per adjudication order to be passed by the defendant No. 1 and for which period of the agency. The plaintiff has not denied the execution of the joint declaration with defendant no. 2 on 01.08.1991 nor he was denied his liability to pay for the period from 01.08.1991 period either before 01.08.1991 or after 03.02.1993 and the relief sought for in the plaint is sufficient to address its grievances. The proposed amendment to add further of C-I, that the joint declaration dated 01.08.1001 to be declared void ab inition and be cancelled and C-III that, defendant No.2
and/or no 3 to be declared liable and responsible to pay the money to be assessed by Defendant No. 1 in different adjudication orders on the basis of Import General Manifest are not at all necessary for adjudication of the aforesaid real issues. Further relief of C-II for a money decree for a sum of Taka 3,90,735 and C-IV a decree of mandatory injunction directing defendant No. 2 and 3 to pay the penalty and other amount to be assessed by Defendant no. 1 are equally not necessary. Because if the plaintiff succeeds to fix the responsibility of Defendant No. 1 and or No. 3 and gets a decree accordingly then, pursuant to the decree the Defendant no. I would be obliged to return gets a decree realized from the plaintiff on 07.02.1999 and would need no mandate from the court to realize the dues from the agent found responsible. Besides, in view of the principles enunciated in the above cited Messer’s Malik & Haq and another V. Muhammad Shamsul Islam Gopal Das V Mul Raj. in a suit for a decree of declaration an amendment for adding further relief of a money decree cannot be allowed.
Bangladesh Shipping Lines Ltd. Vs. Commissioner of Customs & Ors. 11 BLT (HCD)-56
On a perusal of the application for amendment of the plaint it appears that the plaintiffs sought to amend the word’ gift” and to re-place it by ‘will” and the word “tank” to be re-place by ‘bank of tank”. The plaintiff also sought to include certain facts relating to filing to case in the Courts and also sought to include facts relating to death of plaintiffs father Jhon Gomez leaving behind 2 daughters, sons and wife and the said sons were minors. The plaintiff also claimed to include that they acquired title in the suit land by adverse possession also and sought to amend the valuation of the plaint at Tk. 40.000/- in place of Tk. 2,000/- and to pay advelorem court fees. The plaintiffs also sought to include a prayer for declaration of their title on the basis of adverse possession. On a perusal of the Statements sought to be
included in the plaint by way of amendment it does not appear that such amendment would in any way change the nature and character of the suit or the or the proposed amendment are in any way barred by any law. The proposed amendment may be inconsistent with the plaint case as made out by the plaintiff but that will not disentitle to plaintiff to an order of amendment of the plaint.
Elezabeth & Ors. Vs. Naresh Palama & Ors. 11BLT (HCD)-323
The defendant-appellants filed application for rejecting the plaints on the ground that the suits are barred under clause (5) of Article 34 of the Bangladesh Shilpa Rin Sangstha Order. 1972 OP.O. No. 128 of 1972—The learned Trial Court having rejected the said applications the appellant took revision to the High Court Division and a Division Bench upheld the orders of the learned Trial Court.
Held : Per Mustafa Kamal, J : The reasonings of the High Court Division that there is clear distinction between a case where the suit appears to be barred from the statement in the plaint and a case in which the court after consideration of the entire materials including oral* and documentary evidence comes to the conclusion that the statement in the plaint is false, is correct as far as interpretation of Order VII Rule 11 C.P.C is concerned. But the instant cases are governed by Article 34(5) of P.O. No 128 of 1972. To the extent that the determining factors of Order VII Rule 11 CP. C. and Article 34(5) are different and inconsistent. The provisions of Article 34(5) will prevail over those of
Order VII. Rule 11 C.P.C. The defendant appellant need not have tiled applications under Order VII. Rule 11 C.P.C. It could have maintained applications under Article 34(5) of P.O. No 128 of 1972, not for rejection of the plaint, but for not entertaining the suits, as the prayers in the two plaints squarely attract the mischiefs of Article 34(5) (a)(i) and (ii) of P.O. No. 128 of 1972.
Bangladesh Shilpa rin Sangstha vs. Rahman Textile Mills Ltd & Ors 8BLT,(AD)-55
Per Bimalendu Bikash Roay Choudhury, J : The plaints and the prayers of both the suits show that the plaintiffs have disowned liability of loan alleging repayment of disowned liability of loan alleging repayment of the same by the BTMC on their behalf and asserted that the properties concerned were not mortgaged or hypothecated with the Sangstha and that the action taken by the Sangstha was mala fide. It has to be noticed that .there has been no provision for appeal or no forum provided in the Order for redress of genuine grievances of any body or person when injustice is perpetrated on them. It cannot be imagined that such a body or person should be precluded from receiving assistance from a court of law. Civil Court is a court of ultimate jurisdiction, and in cases where no other remedy is provided for. the door of the civil court should not be closed and hermetically sealed against one who has been subjected to injustice.
In the view I have taken of the legal position I am constrained to find that in the instant case the Civil court has jurisdiction to entertain the plaints. The correctness of the allegations can be resolved only at the trial.
Bangladesh Shilpa rin Sangstha vs. Rahman Textile Mills Ltd. & Ors 8BLT(AD)-55.
Question of limitation and res judicata—the petitioner would get a chance to agitate the questions of limitation and res judicata at the time of trial of the suit the petition merits no consideration.
Md. Mabhubul Haque Vs. Md. A. Kader Monshi & Ors 8 BLT(AD)-177.
It is well settled that a plaint may be rejected under Order-7 Rule-1 I of the Code of Civil procedure merely on a plain reading of the plaint and nothing else. —It has been found that there is no hard and fast rule when such an application is to be tiled but ends of justice demands that it must be filed at the earliest opportunity.
Kazi Md. Shahajahan & Anr. Vs. Md. Khalilur Rahman Madbar & Ors 8BLT(AD)-286
Disposal of an application for rejection of plaint.
When a defendant files an application for rejection of the plaint on certain allegations, it becomes incumbent upon the court of dispose it of forthwith before asking the applicant to file written statement.
Md. Moyezudding & Ors. Vs. Md. Ahizuddin Mondal 9BLT (HCD)-463
Order-7 Rule-11(d) read with Arbitration Act, 1940 Section-32
Maintainability of the suit—we are clearly of the view that no suit shall lie on any ground whatsoever to challenge the existence, validity or effect of an arbitration agreement or award. An arbitration agreement or award can only be set aside, modified or amended in accordance with the law of arbitration. The principles behind such bar appear to be universal. Facts of the case do not suggest that the plaintiff is not aware of the forum and the law to pursue. In October 1992, the plaintiff lodged a notice of appeal against the award before the appellate forum of defendant No. 3 On 12.01.1993 it also took a civil action against the award in 1993 Folio No. 41 before the High Court of Justice at England. Each of the actions was the most appropriate in the facts of the case but of them were allowed by both the plaintiff to be concluded against them. Now if the plaintiff can challenge the validity of the award or the existence of the arbitration agreement in the municipal forum. Then we find no absence of intention of the legislature behind the municipal law on arbitration to take care of such a suit.
Paul Reinhurt Ltd. & Ors. Vs. Prime Textiles Spinning Mills Ltd. & Ors. 10BLT (HCD)-39
A Court shall reject a plaint in cases where the plaint does not disclose any cause of action, or when the plaintiff fails to deposit the deficit fees within the time ordered by the Court and/or where the suit is barred by any provisions of law. It is also now well settled that
the above provisions are not exhaustive and a court can even invoke the inherent power under Section 151 of the code to reject a plaint in
extraordinary cases where relief sought for in the suit cannot be granted ultimately under Section 42 of the Act. So in deciding the question as to whether a plaint is liable to be rejected, the Court is always required to peruse the plaint and the plaint only. A Court is not permitted to travel beyond the Plaint to dig out grounds to reject a plaint. The superior Courts always caution the subordinate Courts to keep them within this bound in deciding the question.
M/S Shan Hosiery Vs. Bangladesh Jatiya shamabaya Shilpa Samitee Ltd. & Ors. 10BLT (HCD)-83.
Order-7 Rule-11 read with
Specific Relief Act, 1877
When the fate of the suit is deemed, there is no scope inquiry whether or not the contract was genuine or the contract could be enforced or the plaintiff would be entitled to a decree for a declaration as sought for.
Md. Azizul Islam & Anr. Vs. Sheik Shamsur Rahman & Ors. 10 BLT (HCD)-274
Order-7 Rule-11 read with
Arbitration Act, 1940
The application made under Section 14(2) of the Arbitration Act is not a plaint. The application of the petitioner under Order VII Rule 11 of the Code for rejection of such application is wholly misconceived and is therefore, not maintainable.
Dhaka Leather Company Ltd. Vs. Sikder Costruction Ltd. & Anr. 10 BLT (HCD)-313.
Order-7 Rule-11 read with
Administrative Tribunals Act, 1980
Grameen Bank, which is a statutory authority—the suit filed by the plaintiff opposite party against his dismissal from service is not maintainable before the civil Court, being barred by law in view of Section 4 of the Administrative Tribunals Act—relied on 44 DLR (AD) 260.
Grameen Bank Vs. Md. Humayun Kabir & Ors. 10BLT(HCD)-315
No cause of action—Held : We have gone through the plaint and found that the grievances of the plaintiff as stated in the plaint, firstly that the defendant No. 5 did not yet transfer his share in his favour. This is not the subject matter of the suit in this case but in another suit pending before another Court. Since on his own showing that he does not have the shares of Albert David (Bangladesh) Ltd. he is not a share holder of the said company, as such, the question of tiling a suit on behalf of the Albert David (Bangladesh) Ltd. does not a rise because in
one hand he cannot say that he is not the share holder of the company but on the other hand he has interest in it. cannot be accepted. Even if he is assumed to be a shareholder, strictly speaking, he has no right in the assets of the company or cannot normally represent it. The right of a shareholder is only to the extent of dividends if declared. The contention on behalf of the appellant is that since the notice was issued on him he has a legal right to file the suit. The notice-dated 11.08.1997, as we have already found, was in respect of his holding of his office of directorship in the Pubali Bank Ltd. the question of liabilities, as such, is irrelevant. In this connection, it should be remembered that it is not the relief, which is claimed; rather it is the relief, which can be given to the plaintiff that has to be looked into and considered in a plaint. Mere issuance of a notice by the Bangladesh Bank who is not a creditor, enclosing a letter of Pubali Bank Ltd. for the purpose removing
him from the post of its directorship, will not clothe the plaintiff with the necessary legal right to file this suit for declaration with regard to his liabilities, which is an entirely different matter. Under such circumstances we are of the view that there is no cause of action to fde instant suit.
Shafi A. Chowdhury Vs. Pubali bank Ltd. & Ors.10BLT (HCD)-347
Order 7 rules 10 & 11
It appears that the High Court Division directed the trail Court to dispose of the applications filed under Order 7 Rules 10 and 11 of the Code of Civil Procedure first and thereafter should consider the application for temporary injunction. We have considered the judgment of the High Court Division and it appears that the question of jurisdiction of the trial court has to be decided first and the High Court Division has directed to do that. Two applications under Order 7 Rule 10 and 11 of the Code of Civil Procedure will definitely decide the fate
of the case as regards jurisdiction of the court and the High Court Division directed to dispose of those two petitions first and in so doing has not committed any illegality and wrong.
Liverpool Cotton Association. Vs. Spinning Mills Ltd & Ors 11 BLT (AD)-158
Order 7 rule- 11
An application under order 7 rule 11 of the Code of Civil Procedure should be considered reading the averments in the plaint itself and there is no scope for considering other circumstances and if found on reading of the plaint itself that the suit is maintainable, no extraneous circumstances need be considered to reject the plaint unless the plaint has not disclosed the cause of action or barred by law or by limitation.
Goshahi Das Vs. Nizamuddin Bhuiyun & Anr. 11BLT (AD)-157.
Order 7 Rule-11 (d) read with
Trade Organization Ordinance, 1961
In the instant case, it is provided in Section 12 of the Ordinance that the aggrieved member of the trade organization must exhaust his remedies by way of reference to an Arbitration Tribunal before invoking the aid of the Civil Court.
Shaikh Ansar Ali & Ors. Vs. Tofazzel Hossain 11 BLT(HCD)-238
A Suit which is on the face of it is incompetent under law should not be allowed to further encumber legal proceedings. If the suit is barred by law it is the statutory duty of court to reject Plaint.
Purobi Rani Barmani Vs. Shohrab Hossain & Ors. 11BLT(HCD)-496
Order-7 Rule-11 (d)
When the suit was instituted the claim of the plaintiff for possession and manse profit was already hopelessly barred by limitation and this averred fact does not require any further examination. If it is so, such suit should be buried at its earliest opportunity in order to save time, money etc. of every one.
Faiez Ahmed & Ors Vs. Nur Jahan Begum 11 BLT (HCD)-379.
Per B.B. Roy Choudhury, J : Order of the Artha Rin Adalat—to my mind since the enactment is intended to safeguard the interest of a financial institution the legislature purposely omitted to attach any condition precedent to the filing of an application under Order-9 Rule 9 of The Code of Civil Procedure, which is the absolute right of the financial institution. [Para-5]
Islami Bank Bangladesh Ltd. Vs. Al-Haj-Shafiuddin Howlader & Ors 8 BLT(AD)-187.
Per Kazi Ebadul Hoque, J : From the absence of any provision in the prohibiting filing of an application under order 9 Rule a of the Code and from the specific mention of the Code in Sub-Section (5) of Section 5 of the Ain we are of the view that provisions of order 9 rule 9 of the Code may be followed by plaintiff financial institution before the Artha Rin Adalat for setting aside an ex parte order of dismissal of the suit for default.
Islami Bank Bangladesh Ltd. Vs. Al-Haj-Shafiuddin Howlader & Ors 8BLT(AD)-187
The plaintiff filed a suit for recovery of money against the respondents in the court of Artha Rin Adalat. The said suit was decreed ex parte. The misecellaneous case was filed long after 276 days from the order of ex parte by the respondents. The trial court dismissed the miscellaneous case and the High Court Division allowed the miscellaneous case and restored the suit to its file and number—Held : In the
judgment of the trial court there is no consideration at all whether the summons was served upon the defendant or not. It is definite case of the original suit was never served upon him and by suppression of the summons ex parte decree was obtained. The learned Judges of the High Court Division found that the plaintiff did not examine any witness including the process server to prove the service of summons upon the defendant. The learned Judges of the High Court Division believed the story of defendant that he came to know of the ex
parte decree in the later part of February. 1992 and filed the miscellaneous case within 30days of his knowledge. In that view of the matter, the miscellaneous case was allowed by the Division Bench after awarding a cost of Tk. 25,000.00 against the defendant. The learned Judges of the High Court Division having exercised discretion.
Islami Bank Bangladesh Ltd. Vs. Al-Haj-Bashiruddin Howlader & Ors 8BLT(AD)-93
The court must hold due service of summons proved and it is only then that it can award an ex parte decree. The ex parte decree must be set aside where the court finds that the defendant was not duly served with the summons even if the defendant was aware of the institution of the suit against him.
Md. Abu Zafor Miah Vs. Abdul Motaleb & Anr. 8 BLT (HCD)-94.
Consideration the previous defaults—The court’s below especially the court Appeal not only considered previous defaults of the defendant-petitioners but also look into account the failure of the defendants-petitioners to prove their alleged illness by examining the doctor. Both the courts below found that the defendant petitioners failed to substantiate the existence of sufficient cause for non appearance on the date fixed for hearing on account of illness. True it is that the previous defaults were also considered by the courts below and the courts below rightly considered previous defaults —no litigant got a right to unlimited drought upon courts valuable time and unnecessarily throttle the functioning of justice dispensation system which is itself groaning under unbearable arrears and virtually gasping for breath.
Faiz Ullah & Ors. Vs. Ridwan Ahmed & Ors. 8BLT(HCD)-216
If the applicant satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, as
it thinks fit.
Md. Habibur Rahman & Ors. Vs. M.A. Rashid &Ors. 9 BLT (HCD)-444
Sufficient cause—-the opposite parties have explained in their application the reason for which they failed to take step on 05.07.2001 and as soon as, they came to know about the ex-parte decree, they filed the application within 10 days from the date of the ex-parte decree. The expression “prevented by sufficient cause” used in Rule 13 of Order 9 C.P.C must be construed liberally to enable the court to exercise powers ex-debito justitiae. The failure of the learned Advocate to inform the correct date of hearing to the defendant, in my view, constitutes sufficient cause. [Para-5]
Mehernessa Vs. Mosaraf Hussain & Ors. 10 BLT (HCD)-374
Order-16 Rule-1 of the Code of Civil Procedure authorizes the court to compel attendance of a person by issuing summons to give evidence or to produce documents.
Md. Mawashad Alam Vs. Md. Hedayet Ali Mondal & Ors 8BLT(HCD)-219
Staying further proceeding of decree Execution Case.
Judgment debtor petitioner, for setting aside the auction purchase by opposite party no. 2, filed Miscellaneous case no. 13 of 2003. In the event of disposal of the Decree Execution case during pendency of Miscellaneous case laid under order XXI, rule 90 of the code legal complication may occur. In order to avoid that justice demands that Miscellaneous case No. 13 of 2003 be disposed of within a period fixed by this court and till disposal of the Miscellaneous case, further proceeding of Decree Execution case No. 15 of 2001 be stayed.
Md. Rezaul islam Vs. Uttara Bank Ltd & Ors. 11 BLT (HCD)-377.
Order-18 Rule-17 read with
Evidence Act, 1872 Section-138
Under Rule 17 of Order XVIII of the Code, if the Court thinks fit, the court may at any stage of the suit recall a witness whose examination has already been completed and to put only such questions which the Court thinks fit for the purpose of elucidation or explanation of any matter referred to in the testimonies of such witness. The power under the rule is no doubt discretionary. The discretion is also wider. But how wider this discretion may be that cannot be extended beyond the law of evidence. Such power does not mean, even after the close of evidence, the Court may allow a party to the suit who did not cross examine a witness in time without any excuse, to avail his right again to cross-examine the witness afresh as was available to him under Section 138 of the Evidence Act. It must also be kept in mind that the whole purpose or object for such discretion is to advance justice but not to cause injustice.
Abdul Munim & Ors. Vs. Most. Hazera Zaman & Ors. 9BI.T(HCD)-194
Belated applications—The plaintiff was examined on commission on 12.02.1996. It also appears from order-dated 10.10.1999 that the evidence was admittedly closed. Now the petitioners want to cross-examine the plaintiff and other witnesses afresh. This cannot be allowed under the rule.
Abdul Munim & Ors. Vs. Most. Hazera Zaman & Ors. 9BI.T(HCD)-194
Order-18 Rule-17 read with
Evidence Act, 1872
Recall a witness—the court has power to examine a witness, once he has been discharged after his examination, for further examination for purpose of clarification any point for coming to a decision—relied on 37DLR(AD)32.
Mariam Nessa & Ors. Vs. Nazrul Islam & Ors. 10 BLT (HCD)-311.
Order 20 rule 6(1) and 7
The decree shall always follow the judgment. From the reading of sub-rule (3) of rule 14 of order XXVI of the Code it is clear that where the court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied, but where the court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.
Abu Bakar Siddique Vs. M. Khoshed Alam & Ors. 11 BLT (HCD)-508
Order -20 rule-3
Once the judgment is pronounced in open Court by the High Court Division the same is signed by the learned Judge when the transcript is ready with the date the judgment was pronounced. The judgment which has been orally dictated in the Court can be completely changed before it is signed and sealed provided notice is given to all parties concerned and they are heard.
Abdur Rashid & anr. Vs. Sree Santi Bhusan Deb & Ors. 11 BLT (AD)-117
It appears from the judgment of the Court of appeal below that the plaintiff received copy of the application for execution of the decree endorsing thereon “no objection” through his Advocate Zakir Hossain and as such it cannot be said that copy of application for execution of the decree was not served under Order 21 Rule 16 of the Code. When the petitioner himself consented to the execution of the decree by endorsing1 “no objection” he is debarred from raising the question of service of notice.
Md. Selim Vs. Amir Hossain & Ors 8BLT (AD)-278
Execution case has been filed within three months from the date of passing the decree—Held : It appears to us that the Executing Court concerned acted beyond jurisdiction in issuing the notices upon the judgment debtors in as much as the Court is not required to issue such notice as the decree execution case has been filed within three months from the date of the decree. As the Court below acted in a manner, which is not provided in law, the process of execution of the decree will be delayed to the prejudice of the petitioners decree holders.
Haji Jahanara Begum & Ors. Vs. Rupali Bank & Ors 8BLT(HCD)-268
Order-21 Rule-32 (1)(2)
A decree for injunction is enforceable in law.
Whenever a decree for permanent injuction is violated or willfully disobeyed by the judgment-debtor the decree holder becomes entitled to execution of the decree under Order 21 Rules 32(1) and (2) CPC by the attachment of the property of the judgment debtor or by his detention in the civil prison or by both.
Jiban Bima Corporation Vs. Mr. Mohibul Majod &Anr. 8 BLT (HCD)-5.
Power of the Court to stay execution of its decree.
Where a suit is pending in any court against the holder or a decree of such Court, by a person against whom the decree was passed, the court may stay the execution of the decree passed in the earlier suit till the disposal of the pending suit. For the purpose of the Rule, the court of the Subordinate Judge and Artha Rin Adalat and the Court of the Subordinate Judge are not the same Courts.
BCIC Vs. Eastern Bank Limited & Ors 8BLT (HCD)-133
Held : From the above facts we find, the Subordinate Judge, First Court by his order dated 22.07.1989 practically attached the fixed deposit amounting Taka 92.83,782.20 which was already attached and placed in the custody of the Commercial Court no. 1 in Money Suit No. 91 of 1986. The order was communicated to the said Commercial Court for taking necessary steps. By his order dated 15.03.1997 the Subordinate
Judge, First Court again requested the Commercial Court No. 1 to take steps in light of his order dated 22.07.1989 On further prayer of the petitioner dated 25.03.1997. the Subordinate Judge. First court wrote a letter to the said Commercial court requesting him to remit the decreetal amount of Taka 58,08,215 out of the fixed deposit. The steps taken and the procedure followed by the Subordinate Judge. First Court we are afraid fulfilled the requirements of Order XXI Rule 52 of the Code to make the attachment valid. Because, to effect a valid attachment in respect of the fixed deposit, it was necessary to issue a prior notice under Rule 52 of Order XI of the Code as the notice is a condition precedent to the order of attachment as is stated in Kanhayalal Hanmantrao v Reginald Mathalone, AIR 1951 Nag 52. and Than Mal v Income Tax Officer 67 CWN 916 We could not find any such statutory notice was ever issued by the Subordinate Judge before attaching the fixed deposit which is already in the custody of the Commercial Court No. 1 by prior attachment. The communication of the order dated 22.07.1989 of the Subordinate Judge to the Commercial Court No. 1 is not sanctioned by the Rule.
Md. Hanif Vs. Agrani Bank & Anr. 8BLT (HCD)-400
In the instant case the decree was drawn up and signed on 15.09.1999 and the execution case was filed within three months from the date of passing the decree, issuance of notices upon the judgment debtor was absolutely illegal and without jurisdiction.
Managing Director Rupali Bank Vs. Hazi Jhan Ara Begum & Ors. 9BLT (AD)-207
In the case of Kad Banu and ors Vs. Hajera Khatun and ors 36 DLR (AD) 183 executing court attached the properties of the judgment debtors for alleged disobedience of a decree for perpetual injunction. District Judge in revision set aside the order of the executing Court holding that an application under order 21 rule 32 of the Code of Civil Procedure was not maintainable. On further revision under the repealed provision of Section 115(3) of the Code. High Court Division made the rule absolute. Leave was granted at the instance of the judgment debtors by this Division to consider the question whether a petition under order 21 rule 32 of the Code was maintainable. The appeal was allowed and the case was sent back to the trial court to give an opportunity to the parties to prove that the defendants Judgment debtors had willfully disobeyed the order of injunction impliedly holding the order of injunction impliedly holding that application under order 21 rule 32 of the Code was maintainable. A Division Bench of the High Court Division with one of us and presided over by Ismailuddin Sarker J. heard a reference made by D. M. Ansaruddin Ahmed J. to resolve the conflicting decisions of different Single Benches as to the maintainability of an
application under order 21 rule 32 of the Code. The said Division Bench relying on the aforesaid decision of this Division held that such an application is maintainable.
Zainal Abedin & Anr. Vs. Md. Abdur Rahim 9BLT (AD)-209
Order-21 Rules 58 & 61
There is no doubt that the scope of enquiry under Order XXI Rule 58 of the Code is very limited, which is confined to the question of possession. But such possession such be independent of the judgment debtor and not through the judgment debtor within the meaning of Rule-61.
Mohammad Yunus Mia & Ors. Vs. Bangladesh Krishi Bank & Ors. 9BLT (HCD)-473
Where a suit is pending in any court against the holder of a decree of such court on the part of the person against whom the decree was passed, the court may, on such terms as to security or otherwise as it thinks tit. stay execution of the decree until the pending suit is decided. The Executing court got no power to order stay of execution where the suit is against Decree Holder filed by Third Party. Since, the petitioner is not a party to the suit and the decree and Execution case he got no legal right or character to maintain any application under Rule 29 of
Order 21 of the Code to stay further proceeding of Title Execution case.
Rotis Chandra Das Vs. Sudhir Chandra 9BLT (HCD)-141
In the instant case, it is not disputed that the lot in occupation of the judgment-debtors was allotted to the decree-holder by exhausting all procedures after the preliminary decree for partition by metes and bounds. Any objection against such allotment that might be raised to such allotment must have been met with before the preliminary decree was made final. Once a final decree is passed on the basis of such allotment and after exhausting all procedures against such final decree by way of appeal or otherwise, when such decree was put into execution for
possession of the lot allotted to the decree-holder, and the application did not suffer from any defect, it is the duty of the executing Court to deliver possession to the decree holder under sub-rule (1) of Order 21 Rule 35 of the Code, and if necessary, by removing all obstructions or obstacles put up by the judgment-debtors
Mirza Abdul Bari Beg & Ors Vs. Zahidannessa Ors. 9BLT (HCD)-342
Order-21 Rules 18 and 19
Claim of the judgment debtor for adjustment
The ratio decidendi of the cases is that on general principles and in the exercise of its inherent power, an executing Court can entertain and give effect to a claim to set off in cases which do not come strictly under Order XXI Rule 19 of the Code. And quotable set off can be claimed in a case where cross demands arise out of the same transaction may not arise out of the same transaction but they are so
connection in the nature or circumstances that it would be inequitable to allow one party to separate suit or proceedings. Granting of set off however rests entirely with the discretion of the Court, No party, of course, as of right can claim such set off. It is needless to say that the discretion is to be exercised judicially. In such view of the matter the claim of the judgment debtor for adjustment.
Shankar Lat Das Vs.
Janata Bank & Ors. 10BLT(HCD)-17
In the instant case, though the learned Subordinate Judge did not accept that plaintiff No. 14 was the sole tadbirkar for the plaintiffs in the suit, he found that plaintiff No. 1 was a simpleton and took a merciful view to the default of the surviving plaintiffs in the absence of any willful negligence on their part. He gave them the benefit of section 5 of the limitation Act and set aside the order of abatement in his discretion to achieve the ends of justice—The application for substitution after setting aside abatement filed in the present case substantially contains the prayer for condonation of the delay describing circumstances. Therefore the Subordinate Judge was not much wrong in treating
the application as one also for condonation of delay.
Abdul Kader Mondal & Ors. Vs. Md. Shamsur Rahman Chowdhury & Ors 8BLT(AD)-82
Order-22 Rule-3 read with Order-22 Rule-10
Substitution of the “Legal representatives” The suit is for cancellation of the deed in question of the ground that the deed dated 16.08.1977 is forged deed. Opposite parties No. 1-5 claim that they are in possession of the suit land on the basis of purchase from sole plaintiff Lal Mohon by registered deeds and that they have acquired interest in the suit land. Therefore, they claim that they may be allowed to prosecute the suit since Lal Mohon is dead—Held : No question of substitution of the opposite parties No. 1-5 under Order 22 Rule 3 C.P.C the
death of sole plaintiff Lal Mohon arises at all, firstly because, they opposite parties are not the legal heirs of the deceased Lal Mohon nor successors of the deceased nor are they executors or administrators of the deceased’s estate appointed by the deceased and as such, they are not legal representatives within the meaning of 2(11) of the Code of Civil Procedure. Secondly since the heirs of Lal Mohon are already on record on question of abetment arises at all —1 am of the view that Order 22 Rule 10 C.P.C is the only provision of law on which, they may be allowed to be substituted and leave to be granted to continue the suit.
Abu Taher Bhuiyan Vs. Sri Lal Mohon Mondal & Ors. 10 BLT (HCD)-127.
Order-22 Rules-1 & 10
Plaintiff seeking enforcement of its personal service right and during pendency of the appeal he died— Held: The entire proceeding initiated by plaintiff has been abated on his death.
Rabindra Nath Base & Ors. Vs. Shantilota Bain & Ors 10BLT(HCD)-32
Issues were framed-Plaintiff filed a petition for withdrawal of the suit with permission to sue afresh—Hold
: On perusal of the application itself for withdrawal of the suit with permission to sue afresh I find it has not been stated specifically what are
the legal, formal or other defects which cannot be cured even by amendment of the plaint. All the assertions made there in the petition are vague and made in lump. When an application is filed under order 23, rule 1(2) of the Code of Civil procedure for withdrawal of a suit with liberty to institute a fresh suit, the first thing is that the court has to decide whether there is any formal defect or sufficient ground for which the withdrawal should be allowed.
A.K.M. Mozammel Hoque Vs. Md. Nazrul Islam & Anr. 10 BLT(HCD)-167
The formal defect of “Other sufficient grounds” as under sub rule 2 of rule-1 of Order 23 C.P.C should be liberally construed and there is no legal bar in granting an application for withdrawal of a suit with liberty to file a suit afresh on the self-same matter even at the revisional stage provided the other requirements of the aforesaid provisions of law are fully complied with.
Mustafa Kabiruddin Ahmed Vs. Most. Badrun Nessa Chowdhury. 10 BLT (HCD)-220
Held : We find that at any stage of a suit filed by a non-resident foreigner having non-sufficient immovable property in Bangladesh can be directed by the court suo motu or on the application of the defendant to give security for payment of all costs incurred or likely to be incurred by the defendant. There is nothing in the aforesaid provision that such a plaintiff can be directed to give security only after filing of the written statement. It is the discretion of the court to direct such a plaintiff to give security for the cost. If the court finds
considering the facts and circumstances of the case that such security is to be furnished either before or after tiling the written statement that cannot also be found fault with. But the court should not reject the prayer for furnishing security by such a plaintiff merely on the ground that written statement has not been put in. The court should consider the merit or otherwise of the application before rejecting it. In the instant case the defendant petitioner is not precluded from filing a fresh application for furnishing security by the plaintiff for cost of the suit after filing written statement.
Danish Milk Bangladesh Ltd. Vs. Danish Dairy Board. (AD)-192
Principle — Commissionern’s report
The report submitted by the Advocate Commissioner on a local investigation is just a piece of evidencelike any other evidence. The court may accept it or reject it. Acceptance of the report of the commissioner does not mean that the court is bound to act upon it in preference to other evidence on record. The court will, of course, consider the commissioner report along with other evidence and will be at liberty to draw its own conclusions on the totality of the evidence and the legal incidence that clearly flows there from. The parties shall be at liberty to adduce evidence at the trial in support of their respective cases.
Malahar Balika Junior High School & Ors. Vs. Matri Managal Junior High School & Ors 8BLT (HCD)-53
Local investigation for relying the suit land in a suit for Permanent injunction.
Since there is no specific provision that in a suit permanent injunction, local investigation cannot be allowed and also the subject matter of local investigation as slated in the application,
Annexure-A that the survey knowing advocate Commissioner should be appointed to rely the suit land with the Map physically 1
find no bar to allow the application for appointing commissioner.
Mrs. Sufia Khatun Vs. Shamsuddin Ahmed Babul & Ors. 9BLT (HCD)-135
Service of summons on the Government Pleader is good service on the Government.
Govt, of Bangladesh Vs. Ramananda Sarker 9 BLT(AD)-30
P.O. No. 88 of 1972 created special forum for restoration of mortgaged property. But it did not take away right of redemption available to a mortgagor by filing a mortgage suit under Order 34 of the Code of Civil Procedure.
Asmat Ali Vs. Abdur Rafique Mridha & Ors.9BLT (AD)-12
Order-34 read with P.O. 88 of 1972
The filing of a suit for redemption of mortgage in a civil court is wholly different from filing an application under P.O. 88 of 1972 before the Revenue Authority – P.O. No. 88 of 1972 created special forum for restoration of mortgaged property. But it did not take away right or redemption available to a mortgagor by filing a mortgage suit under Order 34 of the Code of Civil Procedure.
Asmat Ali Vs. Abdur Rafique Mridha & Ors.9BLT (AD)-77
Order- 38 Rule-5
Dispute between the buyer and the seller No order could be passed under Order 38 rule 5 of the Code of Civil Procedure against the proceeds of letter of credit.
Cooryonly (BD) Textile Ltd Vs. Chartkar Informal Holding Ltd & Ors.9BLT(AD)-114 Order-39 Rule-1
In an application under Order 39 Rule 1 C.P.C the precise question needs to be decided is whether the plaintiffs proved a prima facie case in his favour to obtain an order of injunction. In the instant case the learned Judges of the High Court Division rightly found that the plaintiffs failed to prove so. An order of injunction is not to issue merely on the plea of the plaintiffs that the defendants are trying to take forcibly possession of the property in a case in execution for satisfaction of such decree.
Abu Matbar and Others Vs. Shahidul Islam & Ors 8BLT(AD)-287
Ad-interim mandatory injunction the plaintiff was admittedly, as is averred in the plaint, dispossessed by the police on 22.05.2000. So by the order it was intended to restore possession to the plaintiff, which is simply beyond the jurisdiction of the Court. It should be noted that such extra-ordinary jurisdiction cannot be used as a device to restore possession to a party in a suit who is out of possession since before the institution of the suit.
Fulbaria Adarsha Market Dokandar Malik Samity Vs. Fulbaria Adarsha Market Khatigrashta Dokander Kallyan
Samabaya Samity 9BLT(HCD)-157
Order-39 Rules-1 and 2 read with
Trade Marks Act, 1940
In an application under order XXXIX rules 1 and 2 of the Code of Civil procedure made on the allegations of infringement of Trade Marks, the Court is required to see whether the plaintiff is likely to succeed in the suit for Perpetual Injunction or not on prima facie proof of infringement of his registered Trade Mark within the mischief of Section 21 of the Trade Marks Act, 1940 apart from the balance
of convenience. It must also be noted that the concept of Prima Facie case, as we generally understand by the phrase in civil proceedings is no more relevant in Trade Marks cases.
M/S Hamja Rubber Industries Vs. Golam Dostogir Gazi 9BLT (HCD)-280
Order-39 Rule-2 and
Specific Relief Act, 1877 (1 of 1877)
In our jurisdiction, under Ride 2 of Order 39 of the Code of Civil procedure the Court has jurisdiction to grant an order of temporary injunction but only in a suit for perpetual injunction for restraining the defendant form committing any breach of contract or other injury of a like kind arising out of the contract. The right to get supply of the gas in protection of which the plaintiff prayed for temporary injunction as created by the contract is made subject to the duly or obligation to pay the bills of the gas consumed regularly as set out in the contract. In case of default in the payment of the bills, the right to supply of gas stands forfeited. A plaintiff can of course ask for a injunction in case
of any threatened breach of the contract only after fulfilling his part of the contract by paying the bills originally at equity and now under our codified law—in a properly constituted suit the consumer has a right to an order of injunction, prohibitory or mandatory as the situation demands in case of injury, or threatened breach or breach of the contract on the proof that it has not failed in performing its part of the contract.
Managing Director Titas Gas Vs. Immense Washing Plant & Ors. 9BLT (HCD)-304
Order directing the parties to maintain status quo
It appears that the trial court passed the order directing the parties to maintain status quo in the matter which was affirmed by the High Court Division. When the suit is still pending and the defendant has already tiled written statement and there is an order to maintain status quo, we are not inclined to interfere in the matter at this stage.
Sikam Fashion Ltd. Vs. Miaco Ltd. & Ors. 10 BLT(AD)-39
Order-39 Rules-1 & 2 read with
Companies Act, 1913 Section-95
Balance of convenience and inconvenience
It appears from the plaint that the chairman of the company twice asked the defendant No. 2 company secretary to call a meeting of board of directors on 05.04.1999 and then, on 08.04.1999 but he did not comply with any. Thereafter, the chairman himself called the 68the meeting of the board of directors on 15.04.1999 after service of notice dated 14.04.1999 but defendants by their letter dated 14.04.1999 informed of their unwillingness to attend the meeting. The notice dated 08.04.1999 contains various agenda of which agenda no. 3 is ISL affairs. No. 3.2 attending the 9th Bod Meeting of Sheba Telecom and 3.3 performance of MD. The meeting was adjourned to 28.04.1999 and the chairman was requested to request defendant Nos. I and 3 to attend the meeting. But they again refused to attend the adjourned meeting the writing a letter-dated 27.04.1999. After such refusal, it does not lit the mouths of the defendants that the meeting was held without in statutory notice. In the adjourned meeting, resolutions were adopted withdrawing nomination of defendant No. 1 and 3 to represent the ISL in the STL board, and also the nomination of defendant No. 1 to represent as member in the managing committee of the STL. Defendant No. 1 was also removed from the office of managing director and defendant No. 2 company secretary on various considerations. Such holding of the meeting of the board cannot be deemed to be not duly called and held and the decisions taken therein are not valid for want of fresh notice under Section 95 of the Act. I also could not find any valid reason for the defendants to abstain from the meeting and/or withhold their cooperation in the transacting of important business of the company—the balance of convenience and inconvenience is clearly in favour
Mr. S.I. Khan & Ors. Vs. Integrated Service Ltd. & Ors. 10 BLT(HCD)-130
Order-39 Rule-1 read with Section-151
The merit of the suit has got nothing to do with the matter of granting an order of mandatory injunction. The outcome of the suit will depend on its merit on evidence but an order in the nature of mandatory injunction will be issued to remedy an immediate wrong, perpetrated by the offending party in obtaining an advantageous position, by bringing him back to where he was at the lime to institution of the suit and to maintain status quo ante till the suit and to finally settled. The administration of justice requires it is justifiable, of necessity, is to be issues forthwith and should not be delayed to any further period or till hearing of the suit on any pretext or excuse, otherwise, confidence of the people on the administration of justice shall be seriously shaken up to the detriment of the society as a whole.
Md. Mobasher Hossain & Ors. Vs. M/S Saidur Rahman (Pvt.) Ltd. & Ors. 10BLT (HCD)-278
Order-39 Rule-7 read with Order-26
Investigation and inspection
Investigation however requires examination and discovery of all facts and circumstances about any fact in issue in order to obtain the truth. Investigation leads a commissioner to go beyond what he sees on the spot and to find out the truth on behalf of the court by collecting evidence and examination of witnesses, which from its peculiar nature can be best had from the spot. Such evidence enables the Court understands or assesses the fact in issue or which clarifies or explains any point, Bui the Court cannot direct such commissioner to decide any issue, which ought to be decided by Court on evidence. Assistance of the commissioner is necessary* to elucidate any ambiguous or cryptic point, which cannot be clarified by direct evidence in Court. On the other hand, a person authorized under Rule-7 of Order 39 of the Code has got no power to collect such evidence. He will go to the spot to examine the subject matter of suit or to do anything in respect of such subject matter as the Court directs him to do and inform back to the Court.
Arif Ifterkhar Ali & Ors. Alhaj Sekander Ali Howlader. 10 BLT (HCD)-424
Question of injunction against construction in urban areas
Suit for partition—scarcity of land and pressure for accommodation either for residential of commercial purposes in urban areas are growing hand in hand every day-while the time for resolution of a dispute particularly, regarding partition is so uncertain that nobody can say certainly when it will finally come to an end. In such situation, right of a co-sharer to develop the land by a interlocutory order of injunction till partition, which would be inequitable.
Abul Kalam Engineer & Anr. Vs. M. Nasiruddin Howlader & Ors. 10 BLT (HCD)-435
Order 39 Rule-1 and 2
The courts, may grant an order of temporary injunction if it is prima facie satisfied on the papers and documents produced before it that such an order is necessary to restrain an apprehended act or make such other order for the purpose of preventing such removal of any property, as the Court thinks fit until the disposal of the suit or until further orders, such as till hearing of the petition for temporary injunction. This kind of order is the most solemn and authoritative form of order made by a Court, commanding a party to refrain from doing a particular act which is known as prohibitory injunction but when it enjoins a party to do a particular act, it is known as a mandatory injunction. Whatever form it may be if an order of injunction is made it must be obeyed.
M. M. Hossain & Ors. Vs. Saidur Rahman (Pvt.) Ltd. & Ors. 11 BLT (HCD)-349
Order -39 Clause -3 to rule-2
The Court is not concerned with ultimate decision taken after hearing the injunction petition or after conclusion of the suit but whether the order of injunction while it was subsisting, was violated, if it was violated with the knowledge of such an order, the relevant person (s) would be liable for punishment under clause 3.
M. M. Hossain & Ors. Vs. Saidur Rahman (Pvt.) Ltd. & Ors. 11 BLT(HCD)-349
In a civil suit the parties are required to prove their respective cases on preponderance of evidence on balance of probabilities. But in a proceeding under clause 3 of Order XXXIX rule 2, since punishment of penal nature, is involved, a higher degree of proof than the balance of probability is required although not to the extent of proof beyond reasonable doubt”, as in the case of criminal proceedings. The line of demarcation in such a proceeding is somewhere in between these two standards of proof, one under civil jurisdiction, the other under criminal jurisdiction. But whatever may be the standard, the Judge must be satisfied on evidence about the guilt or otherwise of the violator.
M. M. Hossain & Ors. Vs. Saidur Rahman (Pvt.) Ltd. & Ors. 11 BLT(HCD)-349
Order-40 Rule-1 (a)
Principles —appointment of a receiver
Suit for partition — in the instant case, the parties are in separate possession of the suit property left by their father on the basis of a registered partition amongst them since 1991. Out of six sisters and two brothers. Plaintiff No. 1 only wants appointment of a receiver. And her success in the suit mainly depends on the proof that the registered deed of partition was forged and void, and/or not acted upon. In the circumstances, introduction of a third party as a receiver of the valuable property cannot be surely said would not result in mismanagement of or harm to the property — there should be no appointment of a receiver.
Md. Ali Akbar & Ors. Vs. Sakina Begum & Ors. 11 BLT(HCD)-1
In the Judgment of the appellate Court, we could not find any consideration on any of the questions raised. He just stated the grounds taken in the memorandum of appeal one after another and expressed his agreement with them and set aside the report. In the aforesaid facts and circumstances, the judgment and decree of the appellate court cannot stand in law as well as on facts and accordingly, is liable to be set aside. Such decision has no doubt results in miscarriage of justice.
A. Ali Sheikh & Anr. Vs. K. Ali Sheikh & Ors. 11 BLT (HCD)-444
Order 41 Rule-33
The High Court Division dismissed the First Appeal No. 589 of-1991 and thereon dismissed the Artha Rin Suit No. 1 of 1990 — Held: The learned Counsel because of the admitted facts, and in view of the terms and conditions of Ext. 1. the agreement between the Bank and the loanee (defendant No. 2 in the Artha Rin Case No. 1 of 1990) could not take factually as well as legally sustainable exception to the findings and decisions of the High Court Division as to the prematurity of the Artha Rin Suit No. 1 of 1990 i.e. the suit that was filed by the Bank against the loannee for realization of loan money and interest accrued thereon.
Sonali Bank & ors Vs. Md. Harun 11 BLT (AD)-209
Order 41 Rule-31
It is a settled principle of law that the lower appellate court being final court of fact will have to discuss and reassess the evidence on record independently while either reversing or affirming the findings of the trial court. In case of reversal it is more incumbent upon the appellate court to reassess the evidence on record and to arrive at his own independent finding.
Hazarilal Mondal & Ors Vs. Md. Mozaffor Bepari & Ors. 11 BLT (AD)-139
Where evidence clear has been only duly placed before the trial court and it has decided the suit on merit the revisional court has no power to remand by shirking its duty particularly solely for the purpose of writing the judgment afresh.
Hosne Ara Begum & Ors. Vs. Momtaj Ali & Ors. 10 BLT (AD)-99
In view of the clear finding of the trial court regarding Hiba-bil-Ewaz as aforesaid we are of the view that this open remand order for a fresh decision in the suit allowing parties to adduce of the pleadings of the parties, which is not the intent and object of the order of remand contemplated under Order-41 Rule-23 of the Code of Civil Procedure.
Akitulluh & Ors. Vs. Zafala Begum & Ors. 10 BLT (AD)-132
Admittedly, the plaintiff filed the suit of the basis of a deed of agreement dated 27.-1.1971 and the suit was filed in 1982. In that suit Government appeared as defendant No. 2 and filed a written statement challenging the bainapara as fabricated and ante dated—Held : The learned judges of the High Court Division should not have accepted this deed of agreement dated 27.01.1972 which was produced before the
High Court Division for the first time without examining the executant Mahmood Alam or without as to his whereabout. As a matter of fact this filing of this deed of agreement at a belated stage without sufficiently explaining the cause for not filing this document in the suit, more particularly when the respondent
stated in Ext. 2 that she would not produce any more witness and would not produce any document in her favour before the Trial Court.
Govt. of Bangladesh Vs. Mrs. Noorjahan Khan & Ors 8BLT (AD)-1
The High Court Division found that the amendment of the plaint was allowed by the trial court which was not challenged by the petitioners in a higher forum. The lower appellate court therefore correctly enhanced the share of the plaintiffs in accordance with the amended plaint as the plaint case was fully proved by the plaintiffs. Consequently there has been no failure of justice.
Abdul Majid Sarder & Ors. Vs. Sayed Chowdhury & Ors 8BLT(AD)-44
The respondents filed the appeals under Section 43 of the Waqf Ordinance. Appeals Section 43 of the Waqf Ordinance, Appeals were dismissed for default—Held : Prom a consideration of the provisions of the Code as well as Section 43 of the Waqf ordinance it appears that as the District Judge as contemplated under Section 43 of the Waqf Ordinance is not a persona designata but a court and as it is a court of civil nature, the provisions of the Code of Civil Procedure is very much attracted in the present case and accordingly the provisions of Order-41 Rule-19 of the Code of Civil Procedure is available to the respondents.
Aminul Haque Shah Chowdhury Vs. Adbul Wahab Shah Chowdhury & Ors 8BLT (AD)-50 Order-41 Rule-27
Unless an application
under Order-41 Rule 27 C.P.C. is filed for acceptance of the documents as evidence in a case and the documents are made exhibits, mere filing of the same in a court is no ground for a remand of the case on the ground that uninhabited documents filed in the court may be treated as evidence.
Nurul Islam & Ors. Vs. Daud Hossain & Ors 8BLT (AD)-174
Neither from the averments made in the plaint we find that the plaintiff claimed the property in suit as a vested property nor we find that the learned Subordinate Judge held that the property is a vested property. But in spite of such averments made in the plaint and the finding of the learned Subordinate judge the learned judges of the High Court Division have made out a third case in holding that the property is a vested property. Mr. Pal rightly contended that the learned Judges of the High Court Division made out a third case in holding that the
property in suit is a vested property, for the above reasons we are of the opinion that the learned Judges that the suit properly is a vested property.
Md. Shamsul Huda Vs. Bangladesh & Ors 8BLT (AD)-152
Re-admission of an appeal dismissed for default.
Although a liberal view is generally taken in interpreting “sufficient cause” to explain the default of the appellant leading to dismissal of his appeal for default, an undue latitude cannot be allowed to the appellant for the repeated laces of his engaged Advocate. When it is found that the appellant is guilty of gross negligence in prosecuting his appeal, he cannot be allowed to have mercy of the court in the interest of justice.
Md. Anwar Hossain & Ors. Vs. M/S Eagle Box Manufacturing Co. Ltd. & Ors 8BLT (HCD)-57
Clause (b) of rule 27(1.) of the Code of Civil Procedure confers discretion on the appellate court to allow additional evidence in order “to enable it to pronounce judgment, or for any other substantial cause.” This discretion should not be given a restricted interpretation as would, in effect, amount to tying down the hands of the appellate court and stand in the way of doing complete justice in a cause.
Anu Mia & Ors. Vs. Babar Ali Mondal & Ors. 9BLT(AD)-27
We are of the view that ends of justice would best be met if the case is being sent to the lower appellate Court i.e. to the court of District Judge. Dinajpur, for disposal of the appeal upon disposing of the matter of production of additional evidence as the defendant sought by
filing an application under Order 41 Rule 27 of the Code of Civil Procedure in Titled Appeal No. 21 of 1969, which was disposed of by the learned Subordinate Judge on 29th December, 1969. We are also of the view that in the background of the facts of the case High Court Division was not in error in passing the order to afford opportunity to the parties to adduce further evidence if they so advised.
Joydeb Ray & Ors. Md. Muntlasir Reza & Ors. 9BLT (AD)-203
Order-41 Rule 11(1)
A close reading of Order 41 Rule 11(1) read with Rules 12 and 13 leads to the irresistible conclusion that the impugned judgment and order is not an order of dismissal of the appeal. It is an order finally disposing the appeal without admission of the appeal and without serving notice upon the respondent. Such order as has been passed under the impugned judgment and order is not an order of dismissal of appeal rather it is a final order setting aside the order of status quo passed by the trial court without giving an opportunity to the respondent to which she
was entitled to. The judgment and order impugned has no legal sanction in that it is not an order within the meaning of order 41 Rule 11(1) C.P.O.
Most. Fouzia Nigar Chowdhury Vs. Md. Iqbal & Ors. 9BLT (AD)-216
Order-41 Rules-23, 24 & 25
It is now a well settled principle of law of in a suit the plaintiff has paid court fee on advolerm basis, the court is competent to give him relief which he deserves in view of the facts and circumstances of the case but where no such court fee has been paid the court is not in a position to grant any such relief and in that case the court is either to dismiss the suit or the appeal but appellate court in proper cases may remand the suit to the trial court for amendment the plaint and payment of advolerrn court fees.
Md. Abu Taher Vs. Pubali Bank Ltd. & Ors. 9 BLT (HCD)-299.
The appellate Court did not consider any evidence on record nor gave its own decision on the question of title and possession — the judgment of the appellate court is base on total non-consideration of the evidence on record and absence of any findings of its own, such judgment must be held to be no judgment at all in the eye of law.
Jarina Khatun & Ors. Vs. Gani Howlader & Ors. 9BLLT(HCD)-437
In writ proceeding
Order 47 Rule 1 of the Code of Civil Procedure which is applicable in a writ proceeding enjoins the learned judges amongst others to review their own judgments or orders on the reason of mistake or error on the face of the record. The instant case was the best case in this respect. We find, where the learned Judges ought to have exercised their review power. The reason upon which the review application was rejected must be held to be unconscionable and erroneous and so also was the memo of the Ministry of land impugned in the writ petition. We, therefore, come to the conclusion that the High Court Division ought to have allowed the review application and ultimately it ought to have declared the impugned memo of the Ministry of Land as illegal without lawful authority and of no legal effect.
Ratul Basu & Ors.Vs. Govt. of Bangladesh & Ors. 10 BLT(AD)-185
There are certain general principles of review whose authority is universally acknowledge that ought not to be disregarded. The fundamental is that an error is necessary to be a ground for review but it must be one, which is apparent on the face of the record, and so obvious that keeping it on the record will be legally-wrong.
E.T.V. Ltd & Anr. Vs. Dr. Chowdhury M.Hasan & Ors. 11 BLT (AD)-18
Proportionality — It is submitted that if this concept is taken into consideration our judgment will have an important impact on our law and any open the door to areas, which were traditionally not conceived. According to him, the concept he is advocating is already recognized as a general principle of law and applied both by the European Court of Justice and the European Court of Human Rights. It aims at maintaining a proper balance between any adverse effect, which the court’s decision may have on the rights, liberties or interests of persons, and the
purpose which the court pursues in its judgment. It involves the exercise of balancing relevant considerations like, the balancing test, the necessary test and the suitability test. This concept involves the court to evaluate whether proportionate weight has been attacked to one other consideration relevant to the decision. As a ground judicial review it is absolutely it is absolutely a new concept to our jurisprudence. And in accepting it this court shall have to accord different weights to different ends or purposes and different means which cannot be allowed in a review.
E. T. V. Ltd & Anr. Vs. Dr. Chowdhury M. Hasan & Ors 11 BLT (AD)-18
Review is not a rehearing of a case. Review is not in an appeal, or to put it differently. Review is by no means an appeal in disguise whereby an erroneous decision stands corrected. Not mere error of fact and law, but error apparent on the face of the record is a ground for Review, Review lies only on a patent error. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Error apparent on face of record is an error which can be seen by a mere perusal of record without reference to any other matter and to find out error one has not to scrutinize the evidence or record but it should be self evident from a perusal of record itself and can be pinpointed without elaborate examination.
Haji Md. Siddique Master Vs. Samsul Haque & Ors. (HCD)-14
Since this court, in its revisional jurisdiction, discharged the rule only on the issue of limitation, for ends of justice, both the parties should be allowed to agitate all the other issues involved in the suit as well as in the appeal.
Md. Ali& Ors. Vs. Md. Aminuddin & Ors. 11 BLT (HCD)-80.