Code of
Civil Procedure, 1908
Order XLI rule 1-
SCC
suit-Absence of framing of issue on relationship of landlord and tenant-Though
no issue was framed specifically on this point, it is clear from the judgment
that the sec Judge has taken into consideration the main points and decided the
same as if there was an issue on the points and hence the judgment cannot be
assailed only for not framing specific issue.
Jogesh
Chandra Pal vs Ershad Hossain Choudhury 43 DLR 170.
Order XLI rule 1-
Review-Its
scope after leave petition is made before the Appellate Division-The Appellate
Division having given an exhaustive reasoning while disposing of the petition
for leave to appeal, the judgment of the High Court Division has merged into
that of the Appellate Division-High Court Division is no more in seisin of the
matter. In this view the Review petition is not competent.
DC,
(Revenue) Sylhet vs Sudhir Chandra 44 DLR 549.
Order XLI rule 2-
With the
leave of the court any ground can be urged before the court, and particularly a
ground on a question of law can be urged at any stage of the proceeding,
provided the other side is heard on the said ground without being prejudiced.
Abdur Rahman
vs Tazlul Karim Sikdar and others 48 DLR 361.
Order XLI rules 4 and 5-
The defendant
non-appealing-respondent-petitioner who claims his interest through the other
contesting defendant-appellants on common grounds of interest in the appeal has
locus standi to file the application for stay of futher proceedings of the
Execution Case. But the same has been filed with unreasonable delay and such
inordinate delay has not been satisfactorily explained. It is not a fit case
for granting stay on such belated application.
Bangladesh
vs Waker Ahmed and others 48 DLR 211.
Order XLI rules 4 and 20-
Non-appealing
defendant – Condition for impleading such a defendant in the appeal-An appeal
can be filed by some of the defendants when it proceeds from a ground common to
all the defendants. But the appeal which was incompetent at its inception for
omission to implead a necessary party would remain incompetent till the end of
it, unless otherwise during the pendency of the appeal necessary parties are
brought on record.
Anwara Begum
vs Shahanewaz 43 DLR (AD) 156.
Order XLI rule 5(1)-
District
Judge is vested with the jurisdiction to pass an order of ad interim stay after
admission of an appeal and in doing so he need not hear the other party.
Reza vs
Executive Engineer, Facilities Department, and others 50 DLR 434.
Order XLI rule 5-
The jurisdiction
of the District Judge to pass an ad interim order pending disposal of an appeal
can hardly be questioned.
Shafiuddin
Sarwar vs Dhaka Club Limited and others 45 DLR 753.
Order XLI rule 5-
At the time
of admission of appeal Appellate Court has got the jurisdiction to pass an
order staying operation of ad interim injunction passed by the trial Court.
Abdul Latif
vs Chairman, Governing Body, Sher-e-Bangla Balika Mahavidyalay & others 46
DLR 336.
Order XLI rule 5(3)-
Circumstances
when an order staying execution of the decree can be made by the Court.
Under Order
XLI, rule 5(3) no order for stay of execution shall be made unless the Court
making it is satisfied (a) that substantial loss may result to party applying
for stay of execution unless the order is made; (b) that the application has
been made without unreasonable delay; and ( c) that security has been given by
the applicant for the due performance of such decree or order as may ultimately
be binding upon him.
AKM Shahidur
Rahman vs Md Mafizullah Master 38 DLR279.
Order XLI rule 5(3)(c) –
Stay of
execution of the decree by the appellate Court when may be ordered. Order XLI,
rule 5 of the Code of Civil Procedure has conferred power upon the appellate
Court to stay execution of the decree or order appealed from, provided such
court is satisfied with the circumstances envisaged in clauses (a), (b) and (c)
of sub-rule(3). The applicant should make out a case that refusal to stay
operation of the order appealed from may result in a substantial loss to him.
Afruz Miah
vs Siraj Mia 39 DLR 360.
Order XLI rule 5(3)(c) –
‘Substantial
loss’ may result to the party applying for stay of execution-explained.
Substantial loss is a loss which is more than what should ordinarily result
from the execution of the order in the normal circumstances. It must be a
tangible loss and not a mere annoyance to the feelings. In deciding the
question as to whether refusal to stay would result in a substantial loss to
the party, who sought for the stay, the court should consider the nature of the
property, the character of the possession and the past enjoyment of the
property. The disturbance of the appellant’s possession in the hotel in
question is itself a substantial loss and their such possession was required to
be protected till final decision in appeal on the findings arrived at by the
trial Court in appointing the receiver.
It can
hardly be disputed that to run a residential hotel certain special skill in
that business is required. Ordinarily no unskilled person should be allowed by
the court to take over the management of such business which may be likely to
cause damage to the parties interested therein.
Afruz Miah
vs Siraj Mia 39 DLR 360.
Order XLI rule 5(3)(c) –
Appointment
of a receiver needs stronger case. The principles of granting temporary
injunction and that of appointment of receiver although are based upon the same
judicial principles, but appointment of receiver needs a stronger case than
that of for temporary injunction. The order of appointment of receiver, as
passed by the trial Court, is an incomplete one as remuneration of the receiver
along with other terms of his appointment are yet to be incorporated before
giving effect to the same.
Afruz Miah
vs Siraj Mia 39 DLR 360.
Order XLI rule 5(4)-
The Court
may or may not hear the decree-holder (respondent) when the stay matter is
heard and finally disposed ofThe Court would bear in mind while deciding the
stay matter that the decree-holder cannot be denied the fruit of his decree.
AKM Shahidur
Rahman vs Md Mafizullah Master 38 DLR 279.
Order XLI rule 12-
There is no
provision of law for allowing appeal without serving any notice to the
respondents.
Abdul Wahab
Biswasvs Abdul Matin Miah & others 53 DLR 196.
Order XLI rule 14(3)-
The provisions
of the Code not inconsistent with the Order being made applicable to Election
Petition and the appeal being the continuation of the Election petition, the
provisions of the Code which do not bar dispensing with service of notice to
the noncontesting parties are applicable to appeal arising out of election
petition.
Moulana
Delwar Hossain Saydee vs Sudhangshu Shekhar Halder and others 51 DLR (AD) 171.
Order XLI rule 14(3)-
Order XLI,
rule 14(3) of the Code has given ample power to the High Court Division to
dispense with the service of notice upon the non-contesting respondents.
Shahe Alam
(Md) vs Md Golam Sarwar and others 52 DLR (AD) 164.
Order XLI rules 17(1) and 19-
Under Order
XLI, rule 17 the Court is authorised to dismiss an appeal: but not authorised
to consider an appeal in the absence of the appellant and decide it on merits.
If the appeal is dismissed on merits, it will be treated as a dismissal for
default, against which appeal lies under rule 19 of Order XLI.
Manoo Miah
vs Ahmed Khan 39 DLR 119.
Order XLI rule 19-
In
entertaining an application under Order IV, rule 19 CPC District Judge did not
over-step his boundaries. He acted completely within his jurisdiction and was
fully empowered to do so as the principal Civil Court of Original Civil
Jurisdiction.
Muktad
Hossain Majumder vs Abul Bashar Majumder 38 DLR 41.
Order XLI rule 19-
District
Judge exercises power of an appellate Court. In spite of incongruity of a
revisional application being available to a party aggrieved against the
substantive decision of the District Judge on the Election Appeal and of there
being a provision for appeal in the case of a rejection of application under
Order XLI, rule 19 CPC, the District Judge will continue to exercise all those
powers which as an appellate Court has been vested in him under the Code of
Civil Procedure.
Muktad
Hossain Majumder vs Abul Bashar Majumder
38 DLR 41.
Order XLI rule 19-
There is no
authority in support of the proposition that order of dismissal of a suit for
default cannot be passed without waiting till before the end of the day.
Abdul Mannan
vs Abdul Aziz 46 DLR 477.
Order XLI rule 19-
The previous
conduct of the respondent may. be reprehensible but the matter (restoration of
the appeal) cannot be decided on the ground of mere previous conduct. Whether
he was prevented by sufficient cause from appearing when the appeal was called
on for hearing will determine the outcome of the proceeding under Order XLI,
rule 19 CPC.
Mrinal Kanti
Guha & others vs Brajendra Lal Dhar & others 44 DLR (AD) 9.
Order XLI rule 19-
Inherent
power of the court cannot be invoked to enable the court to break through clear
provision of the Limitation Act.
Sufia Khatun
and others vs Abdul Majid and others 45 DLR 584.
Order XLI rule 19-
Recording of
a finding of satisfaction of the Court regarding the existence of sufficient
cause preventing the appellant-petitioner from appearing before the Court when
the appeal was called on for hearing following which the appeal was dismissed
for default is a requirement of law. Readmission of appeal cannot be made
ignoring this provision of law.
Matiur
Rahman Bepari vs Wazuddin Bepari & others 52 DLR 450.
Order XLI rule 19-
The word
“proved” is sufficiently indicative of taking evidence as to the existence
of sufficient cause to pass an order under Order XLI rule 19 of the Code.
Raisuddin
(Md) vs Sitaram Bhar and others 53 DLR I3I.
Order XLI rule 20-
Non-appealing
defendant-Condition for impleading such a defendant in the appeal-An appeal can
be filed by some of the defendants when it proceeds from a ground common to all
the defendants. But the appeal which was incompetent at its inception for
omission to implead a necessary party would remain incompetent till the end of
it, unless otherwise during the pendency of the appeal necessary parties are
brought on record.
Anwara Begum
and others vs Shahanewaz and another 43 DLR (AD) 156.
Order XLI rule 22-
Respondent
can urge a point decided against him in appeal under Order XLI rule 22 CPC
without preferring cross objection—Question of limitation being a question of
law can be urged as a matter of law.
Monindra
Mohan Kar vs Ranadhir Datta 38 DLR 240.
Order XLI rule 22(1)-
Limitation-Mode
of calculation-Superficially there is hardly any distinction between 30 days
and one month of limitation provided for in these laws. By judicial
interpretation it has been held that the two are not identical. The mode of
calculation on the basis of 30 days and that on the basis of one month are
different as approved by the Appellate Division of our Supreme Court.
National
Bank Limited vs Sunil Kumar Biswas 45 DLR 547.
Order XLI rule 22(1)-
The
plaintiff having filed no cross-objection against the finding of the trial
Court as to fabrication of the Kabuliyat and additional payment, the finding is
holding good.
Sheikh
Salimuddin vs Ataur Rahman 43 DLR 18.
Order XLI rule 22(4)-
When an
appeal abates (not dismissed) the cross-objection cannot be heard.
Abdul Mabud
vs Shafique Ahmed 38 DLR 364.
Order XLI rule 23-
Remand is
not to be granted as a matter of course-when registration was done under
section 60 of the Registration Act and the requirement oflaw was fulfilled;
prayer of remand does not merit consideration as the defendants did not adduce
any evidence to rebut the presumption attached to the registration made under
law.
ADC, Rev and
Asst. Custodian Vested Property, Chandpur vs Tafurnessa 41 DLR (AD) 124.
Order XLI rule 23-
Co-sharers
in a partition suit-Remand in the interest of justiceThe appellants produced
documents in support of their case though they, women and minors being heirs of
plaintiffs brother, could not put any witness in the box for want of proper
legal advice-A case for remand has been made out.
Jobeda
Khatun vs Hamid Ali 40 DLR (AD) 101.
Order XLI rule 23-
The High
Court Division discharged the Rule upon holding that there was no ground for
directing a remand as prayed for by the appellants.
Jobeda Khatun
vs Hamid Ali 40 DLR (AD) 101.
Order XLI rule 23-
Documents
produced by the appellants were lawfully admitted into evidence after
dispensing with the formal proof. Evidentiary value of the documents in the
absence of oral evidence supporting the defendant’s case in the written
statement.
Jobeda
Khatun vs Hamid Ali 40 DLR (AD) 101.
Order XLI rule 23 –
Dispute
between the co-sharers should be resolved in one trial-in the presence of all
co-sharers and saham allotted accordingly-Intervention role of the Court is
encouraged in the more progressive societies. High Court and the lower appellate
Court should have intervened either in appeal or in revision to allow the
appellants to examine witness for the purpose of complete adjudication between
the co-sharers.
Jobeda
Khatun vs Hamid Ali 40 DLR (AD) 101.
Order XLI rule 23-
Terms of remand
order-The suit should be decided by taking into consideration the case of the
appellants and they will be permitted to examine witness in support of their
case and for connecting documents already proved by them.
Jobeda
Khatun vs Hamid Ali 40 DLR (AD) 101.
Order XLI rule 23-
Remand to
the trial Court to decide the respective saham of all cosharers in the
partition suit upon examination of documents and witness afresh-Appellants did
not examine any witness. They filed certain documents marked Exts “Ka”
to “Uma” upon dispensing with their formal proof.
Jobeda
Khatun vs Hamid Ali 40 DLR (AD) 101.
Order XLI rule 23-
As the facts
of the case have been changed, a remand of the suit has become inevitable in
order to ascertain the facts of the case.
Abdus Sobhan
vs Jamiruddin Jaigirdar & others 40 DLR 488.
Order XLI rule 23-
Remanding
the case back for retrial instead of disposing of the appeal himself, the
District Judge has shirked his responsibility. He could have avoided giving
fragmentary decision which hinders justice.
The learned
District Judge has, instead of disposing of the appeal finally and completely,
remanded the case to the lower Court for retrial in the light of his
observation after giving opportunity to the tenant to prove into evidence his
two trade licences at the appellate stage. Instead of shirking his
responsibility in this way, the learned District Judge could have done it
himself in accordance with law as it has been discussed earlier, and thereby
could have avoided giving fragmentary decision to the detriment of the interest
of both the parties. This kind of avoidable fragmentary decision hinders
justice and tends to frustrate its very purpose, far from advancing its cause.
Zehad Ali vs
Khorshed Ahmed 41 DLR 336.
Order XLI rule 23-
Defence plea
of possession from 1947 and 1950 respectively—Plea of adverse possession—Plea
not accepted by the lower appellate Court-Plaintiff did not adduce evidence to
prove the claim of the possession of the judgment-debtors in the suit and since
1947 & 1950 till the auction-sale in 1964- This aspect having being not
considered by the lower-appellate Court the decision has been vitiated.
Tajidullah
vs Sona Mia 41 DLR 233.
Order XLI rule 23-
Concurrent
wrong finding of fact on the factum of possession by the courts below in favour
of the plaintiffs-It has occasioned a failure of justice-Remand to the trial
Court for retrial according to law and observations made.
Tajidullah
vs Sona Mia 41 DLR 223.
Order XLI rule 23-
The Court
will not decide a point especially in the interlocutory matter which will not
advance the cause of justice. It will merely delay the process of coming to a
conclusion as to claim and counter-claim which can only be thrashed out in the
pending suit.
The Dhaka
Dyeing and Manufacturing Co Ltd vs Agrani Bank 42 DLR (AD) 60.
Order XLI rules 23 –
Suits are
remanded to the trial Court to allow the defendants to produce these evidence
as additional evidence which will enable the plaintiff to give challenge to the
claim.
Bangladesh
& ors vs Dhaka Lodge Welfare Society 40 DLR (AD) 86.
Order XLI rule 23-
The
appellate Court cannot direct the trial Court on remand to consider the
application for withdrawal of the suit after the suit had already been decreed
by the trial Court.Tn allowing the application the trial Court must come to a
finding that the suit suffers from formal defect.
Pradip Kumar
Malakar vs Birendra Chandra Malakar and others 45 DLR 422.
Order XLI rule 23-
For the
laches of the indolent defendants the petitioner cannot be made to suffer for
facing a new trial after the suit has been disposed of on merit.
Abu Sayeed
Sheikh and othes vs Md Majibur Rahman and others 51 DLR 289.
Order XLI rule 23-
Remand-The
present petitioner took no step for giving additional evidence before the
appellate Court and also has not taken any step for calling for the record of
the earlier suit. What the appellate Court did was nothing but giving an
opportunity to the defence to fill up the lacuna which the law does not permit.
Abdus Sobhan vs Anwar Rahim & others 53 DLR (AD) 110.
Order XLI rule 23-
Remand as
contemplated under Order 41 rule 23 of the Code of Civil Procedure was not of
matter of course or to fill in the lacuna in any party’s pleading.
Akitullah
and others vs Zafala Begum and others 54 DLR (AD) 74.
Order XLI rule 23-
Where the
trial Court has decided the suit on merit the revisional court has no power to
remand by shirking its duty of writing the judgment afresh.
Hosna Ara
Begum and others vs Mantaj Ali and others 55 DLR (AD) 20.
Order XLI rule 23-
The defect
was brought to the notice of the pre-emptor by the pre-emptee at the earliest
opportune moment and yet the preemptor took no step to amend his plaint and
make all the co-sharers of the ‘case holding’ parties in the case. The
Subordinate Judge, when he found defect of parties, ought to have dismissed the
case, instead of remanding it to the Court below.
Madinullah
Miah vs Md Abdul Mannan & anr 54 DLR 507.
Order XLI rules 23-25—
When the
trial Court, after framing the issues and giving the parties opportunity to
adduce evidence, disposes of a suit on merit, the appellate Court in the
subsequent appeal therefrom, cannot remand the case back to the trial Court for
its disposal on merit anew.
Madinullah
Miah vs Md Abdul Mannan & anr 54 DLR 507.
Order XLI rules 23 and 27-
Practice and
Procedure-Practice of deciding an appeal partly leaving some question at issue
between the parties undecided and sending back the suit on remand for decision
defeats the purpose of justice.
This kind of
practice of deciding an appeal partly leaving some questions at issue between
the parties undecided, and sending back the suit on remand for decision
thereon, where the lower appellate Court itself could have done it in
accordance with law, is to be deprecated and discouraged as it tends to delay
the administration of justice and thereby to defeat its purpose.
Zehad Ali vs
Khorshed Ahmed 41DLR336.
Order XLI rules 24 and 31-
The court of
appeal below being the last court of facts is required to consider the material
evidence either to affirm or reverse the judgment of the trial Court after
assigning reasons. The appellate Court shirked its responsibility in sending
back the case on remand without itself deciding the appeal on merit. The action
of the Court of appeal below is deprecated and the case is sent back on remand
to it for deciding the appeal on merit.
Benode
Behari Mondal vs Arabinda Sarder and others 49 DLR 72.
Order XLI rule 27-
Power to
entertain additional evidence is intended to be exercised when the Court
considers itself unable to pronounce judgment without further evidence. If the
Court can deliver judgment, additional evidence should not be admitted.
Abdul Awal
vs Abdul Hamid 45 DLR 362.
Order XLI rule 27-
Production
of additional evidence-The power to allow additional evidence is discretionary.
Although a court is required to record reasons, even if reasons are not
recorded, evidence recorded will not be inadmissible if the reception of
additional evidence can be justified under rule 27.
Capital
Properties Ltd vs Bangladesh 44 DLR 308.
Order XLI rule 27-
Admittedly
no prayer was made before the trial Court for obtaining the opinion of the
hand-writing expert on the execution of bainanama and then such opinion was not
needed by the courts for pronouncement of judgment. The appellate Court
therefore rightly rejected the prayer for referring the document for expert
opinion.
Serajul
Islam (Md) vs Binoy Bhusan Chakraborty and others 47 DLR 248.
Order XLI rules 27-
Substantial
cause’ explained-Additional evidence may be allowed to be led at the appellate
stage if facts disclose that one of the parties to the proceedings withheld
some material evidence to prejudice of the other party which the other party
got to know and secured by having access to them at a later stage.
Rahela
Khatun vs Fayezuddin Shah 38 DLR (AD) 6.
Order XLI rule 27-
Section 20
of the Family Courts Ordinance is a bar to the application of the Civil
Procedure Code in Family Court proceeding with the exception of sections 10 and
11 under the Family Courts Ordinance. The lower appellate Court cannot take
evidence as the provisions of appeal in the Family Courts Ordinance does not
provide for taking of evidence. It being a special law must be applied
strictly. The appellate Court cannot also remand the case to the. Trial Court
as the Family Court Ordinance does not provide for any such provision.
Saleha Begum
vs Dilruba Begum 53 DLR 346.
Order XLI rule 31-
The object
of rule 31 of Order XLI of CPC is that the 1st Appellate Court must consider
independently the relevant salient points which arose for adjudication and to
discuss evidence led by the parties as well as point of law. In the instant
case the first Appellate Court did not discuss each issue separately nor gave any
independent findings on each issue after assessment of evidence· on merit.
Obviously, it suffers from patent illegality and material irregularity which
was violative of the provision of Order XLI rule 31 of CPC.
Dewan
Mohammad Safare Ali vs Bangladesh 43 DLR 221.
Order XLI rule 31-
Contents of
appellate Judgment-Appellate judgment reversing that of the trial Court should
be adequate and satisfactory. It must contain definite findings on the
questions involved and must give reasons for reversing the decision of the
trial Court.
Anwar
Hossain vs Abdul Hossain Molla 44 DLR 79.
Order XLI rule 31-
First
appellate judgment-It has to enable the High Court Division in Second Appeal to
judge whether the lower appellate Court has properly appreciated and decided
the case.
Anwar
Hossain & others vs Abul Hossain Molla & others 44 DLR 597.
Order XLI rule 31-
The High
Court Division failed to consider the evidence on record afresh in reversing
the finding of the trial Court and as such the impugned judgment is not sustainable
in law.
Bina Rani
and another vs Shantosh Chandra Dey 51 DLR (AD) 81.
Order XLI rules 31 and 33-
It is the
duty of the lower Appellate Court to discuss the evidence led by the parties as
well as the points of law involved and to give findings thereon with reasons.
Aftabuddin
Fakir vs Sowdagar Rabi Das 43 DLR 42.
Order XLI rule 31 and section 115 –
Reversal of
the trial Court’s findings that “Pitamber and after his death his heirs
had been possessing the suit land” by the learned Sub-Judge by ignoring altogether
material facts and documents. The learned Sub-Judge also held without any basis
that “It is presumed that Samad Ali’s tenancy right continued” though
there is no evidence of possession of the plaintiff predecessors’ right from
the beginning of the present century upto 1963 when the plaintiffs allegedly
purchased. These findings as to Samad Ali’s and plaintiffs’ possession cannot
be legally sustained. Further the learned. Sub-Judge without considering the
finding of the trial Court that the plaintiffs failed to prove that the
defendant Nos. 4- 6 were the heirs of Samad Ali just in one sentence found that
“the plaintiffs have sufficiently proved that their vendors are heirs of
Samad Ali.” Such a finding ought not to have been allowed to stand in revision
when the same was raised as the first ground. Appeal allowed.
Nur Ahmed vs
Nur Ahmed 40 DLR (AD) 175.
Order XLI rule 33-
The
appellate Court can pass any order as the case may require
“notwithstanding that the appeal is as to part only of the decree and may
be exercised in favour of all or any of the respondents or parties although
such respondents or parties may not have filed any appeal or objection”.
Md Osman
Gani vs Kulsum Bibi 37 DLR (AD) 63.
Order XLI rule 33-
Appellate
Court has the power to assess compensation which escaped the notice of the
trial Court and do complete justice to one even in the absence of his filing of
crossobjection.
Sonali Bank
and another vs Md Harun 52 DLR 75.
Order XLI rule 33-
This court
can pass a decree or order which ought to have been passed or made as the case
may require and this power may be exercised notwithstanding the fact that the
defendant-respondent has not filed any appeal or objection.
Sonali Bank
vs Rana Oil Mill and ors 52 DLR 130.
Order XLI rule 33 & Order XLVII rule 1 –
When the
original judgment was passed there was omission on the part of the Court to
consider the provision of Order XLI rule 33 and such omission constituted a
sufficient ground analogous to Order XLVII rule I and for such omission the Court
was not incompetent to reconsider the matter after judgment.
Mathura
Mohan Pandit being dead his heir Sudhir Chandra Das vs Hazera Khatun 48 DLR
190.
Order XLII rule 1-
It is true
no appeal was preferred against the order of dismissal of the suit on question
of its maintainability but a review application was preferred. Since the order
of dismissal was absolutely illegal and without jurisdiction, no technical
point should stand in the way of doing substantial justice and, as such, the
order of dismissal of the suit is set aside.
MA Majid vs
M Ahmed, Executive Engineer & another 46 DLR 258.
Order XLII rule 1-
As to the
new concept of ‘proportionality’ as a ground for judicial review it is
absolutely a new concept to our jurisprudence – 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.
Ekushey
Television Ltd and another vs Dr Chowdhury Mahmood Hasan and ors 55 DLR (AD)
26.
Order XLII rule 1-
What is required
to be protected is the interest of the general public from abuse of power by
the executive, the most eloquent aspect of this case-In public interest
litigation the court will lean to protect the interest of the general public
and the rule of law vis-a-vis the private interest-Where the rule of law comes
into conflict with third party interest the rule of law will, of course,
prevail.
Ekushey
Television Ltd and another vs Dr Chowdhury Mahmood Hasan and ors 55 DLR (AD)
26.
Order XLII rule 2-
Dismissal of
suit for non-payment of cost whether sustainable – On hearing about non-payment
of adjournment cost the petitioner immediately paid the cost. For noncompliance
with the order of a Court for payment of cost a separate proceeding can be
drawn but such default cannot be a ground for dismissal of the suit. In the
facts of the case the Court below has committed an error of law in not allowing
the review petition for restoration of the suit.
Abdul Jalil
vs Abdul Quddus 45 DLR 18.
Order XLllI rule 1-
Order XLIII,
rule I does not say that an order accepting Advocate Commissioner’s report is
appealable.
Under the
provisions of section 104 of the Code of Civil Procedure the appealable orders
are specified in Order XLIII, rule 1, CPC. Order XLIII, rule I of the Civil
Procedure Code does not say that an order accepting Advocate Commissioner’s
report is appealable and that being so the learned Additional District Judge
has obviously erred in rejecting the petitioner’s application under section 151
CPC for vacating the order dated 20-9-78 accepting Commissioner’s report as not
maintainable on a wrong notion and misconception of law that the order dated
20-9-78 is appealable.
Rehanuddin
vs A Hakim 39 DLR 21.
Order XLIII rule 1(a)-
Taking
revision in a matter in which appeal lies-High Court Division assuming
revisional jurisdiction taking into consideration circumstances of exceptional
nature, in a matter in which appeal lies, cannot be accepted as a general
principle for determining the point as to whether revision application lies to
the High Court Division against the order from which appeal lies before the
District Judge. The present case having been arisen from the order against
which appeal has been provided, revision is not maintainable, no matter whether
the appeal has been provided for either before the District Judge or the High
Court Division.
Mansur Ali
vs Janata Bank 43 DLR 394.
Order XLIII rule 1(c)-
Miscellaneous
case was not dismissed on 11-3-1984 for non-appearance but for not putting in
the cost within time- The order dated 11-3-1984 was neither an order rejecting
the miscellaneous case for default nor rejecting the same on merit-Hence an
appeal under Order XLIII, rule l(c) is not contemplated for such an order.
Rafiqul
Islam vs Abul Kalam 42 DLR 19.
Order XLllI rule 1(c)-
Order XLIII,
rule 1 of The Code contains provisions for appeal against an order passed in a
suit. Order XL III rule 1 ( c) does not provide for an appeal against an order
rejecting a petition laid under Order IX, rule 9 of the Code directed for
restoration of a preemption proceeding on setting aside order of dismissal.
Haripada
Mandal vs Bidhan Chandra Mondal 55 DLR 515.
Order XLIII rule 1(d)-
Order of
dismissal for default being an appealable order under Order XLIII, rule 1(d),
the Court cannot interfere under section 151 CPC and pass an order restoring a
case to file.
Md M Hossain
Mollah vs Asstt. Deputy Custodian 37 DLR 287.
Order XLIII rule 1(d)-
Maintainability
of application under section 151 CPC for setting aside an order cancelling an
earlier order dismissing a Miscellaneous Case under Order IX r. 13. The effect
of an order of dismissal of the Miscellaneous case for default is one of
rejecting an application to set aside a decree passed ex parte. It is not an
order passed on merit, but ex parte. The view taken by the High Court Division
that appeal lies in both cases is correct. This is not to say that the
application under section 151 CPC is barred under all circumstances. Since the
application under section 151 in the present case was filed 7 days after
dismissal of the miscellaneous case for default without any explanation for the
delay, such application could not be justified.
Abdul Kader
Chowdhury vs Nurul Islam 43 DLR (AD) 128.
Order XLIII rule l(i)(ii)(iii)-
An order
releasing a property from attachment as also an order disallowing a claim to
attached property are now appealable after the amendment of 1983.
Bangladesh
Shipping Corporation vs Rafique Ahmed 40 DLR 36.
Order XLIV rule 23-
There is no
provision that after remand of the suit to the trial Court, plaintiff again
shall have to serve notice/summons upon defendant who was contesting the suit.
Nurul Islam
(Md) and others vs Md Maniruddin Bepari and others 49 DLR 35I.
Order XLVI rule 7-
The suit
falling within the exclusive jurisdiction of the Small Cause Courts Judge but
erroneously tried by a court other than the sec Judge suffers no legal
infirmity and the trial cannot be vitiated. Section 23 of the Small Cause
Courts Act negatives the proposition that section 16 of the Act altogether
deprives the civil Court of the jurisdiction conferred by section 9 of the Code
in respect of the small causes suit.
Wahida
Rashid vs Miran Muhammad Zahidul Hoque 43 DLR 115.
Order XLVII rule 1-
An order
upon an application under Order XLVII, rule 1 CPC is not a decision within the
meaning of sub-section (4) of section 29 as it does not relate to certain
dispute on merits.
In the
instant case the learned District Judge also committed an error in entertaining
the present appeal from an order rejecting the review contrary to the provision
of Order XLIII, rule 1 clause (w) inasmuch as no appeal lies under Order XLIII,
rule 1 (w) CPC from an order of rejection of an application for review.
Abdus Salam
vs Sirajul Islam 42 DLR 27.
Order XLVll rule 1-
The scope of
review under Order XLVII, rule 1 CPC is very limitedNon-consideration of
evidence which could have been led in the Court below as evidence is not a
ground for review when it tends to the re-opening of the whole matter and will
be tantamount to sitting as a Court of appeal on its own order by the Court.
Failure on the part of a judge to accept properly the submission of the learned
Advocate resulting in an erroneous finding is not ground for review.
Ahmed Safa
vs Hamid Box 42 DLR 209.
Order XLVII rule 1-
Provisions
of Order XLVII rule 1 CPC and rule 26 of the Supreme Court Rules are applicable
in case of review by the Appellate Division of the Supreme Court. Rule 26 of
the Supreme Court Rules provides 30 days for filing a review petition.
Mahbubur
Rahman Sikder vs Mujibur Rahman Sikder 37 DLR (AD) 145.
Order XLVII rule 1-
Review of
its judgment by the Supreme Court (AD) is solely for the purpose of doing
complete justice in a case, not for any academic purpose.
Mahbubur
Rahman Sikder vs Mujibur Rahman Sikder
37 DLR (AD) 145.
Order XLVII rule 1-
Judgment in
conflict with the Constitution or of some law – Review mandatory.
Mahbubur
Rahman Sikder vs Mujibur Rahman Sikder 37 DLR (AD) 145.
Order XLVII rule 1-
Normally the
Supreme Court’s (AD) judgment is final to be disturbed only in exceptional
cases.
Mahbubur
Rahman Sikder vs Mujibur Rahman Sikder 37 DLR (AD) 145.
Order XLVII rule 1-
Review case
to be governed by Order XLVII, rule 1 CPC and rule 26 of the SC Rules.
Mahbubur
Rahman Sikder vs Mujibur Rahman Sikder 37 DLR (AD) 145.
Order LVII rule 1-
Neither
Parliament nor the Court has untill now made any provisions against exercising
the power of review suo motu.
Mahbubur
Rahman Sikder vs Mujibur Rahman Sikder 37 DLR (AD) 145.
Order XLVII rule 1-
The learned
Munsif acted as if as an appellate Court and not as an original Court applying
the provisions of Order XLVII rule 1 CPC while disposing of the matter. The
learned District Judge without applying his mind simply dittoed the order. The
impugned order is not sustainable in law.
Arun Bhowmic
vs Salim Reza 40 DLR 199.
Order XLVII rule 1-
New and
important matter which was not within the knowledge of the petitioner should be
brought to the notice of the Court when order is made.
Arun Bhowmic
vs Salim Reza 40 DLR 199.
Order XLVII rule 1-
The
petitioner seeking relief in a review petition should prove certain materials
i.e. new and important matter which was not within his knowledge when the
impugned order was made.
Arun Bhowmic
vs Salim Reza 40 DLR 199.
Order XLVII rule 1-
In order to
get the benefit of section 14(2) of the Limitation Act the petitioners must
also show that the Appellate Division was unable to entertain the Civil
Petition because it suffered either from a defect of jurisdiction or other cause
of a like nature.
Held: Also
in consideration of Articles 103 and 104 of the Constitution that the Appellate
Division had no defect of jurisdiction in entertaining the Civil Petition.
Further
Held: The petitioner’s application was barred by limitation, as they were not
entitled to the protection of section 14(2) of the Limitation Act.
Falu Meah vs
Safar Ali 40 DLR 165.
Order XLVII rule 1-
The Court
has got the liberty to commit mistake in construing a document and the mistake
is not amenable to review.
Abdul Halim
Bepari vs Khokan Chandra Datta 46 DLR 264.
Order XLVII rule 1-
Review-
Formulation of points for determination-Nonfixation of proper points for
determination has ceased miscarriage of justice in the instant case. The
Subordinate Judge is directed to re-hear the application for review on fixation
of points for determination and decide the same in accordance with law.
Afsar (Md)
vs Moulvibazar Paurashava 43 DLR 589.
Order XLVII rule 1-
The matter
of rate of conversion of US dollar into Bangladesh currency was not argued at
the time of hearing of the appeals. The matter cannot be decided without
hearing the parties afresh. This court’s judgment is therefore not amenable to
review on this score. It will be an appeal in disguise if a fresh argument is
entertained. Our omission to allow rate of conversion on the date of payment
seems to be partly circumstantial and partly deliberate. An appeal before this
Court on the specific point of rate of conversion would have brought the issue
in a sharp focus and we could have given our thoughts to it. This is the
circumstantial part. The deliberate part is that even in the Table produced by
the learned Counsel for the petitioner at the hearing of the two appeals it was
not indicated that the rate of conversion as on 1-7-77, shown in the Table, was
only tentative and that a further amount in Bangladesh currency would be due if
the rate.of conversion on the date of payment was ordered. When the petitioner
is unmindful of Article 28, a court of law has no independent duty to enforce
Article 28, like section 3 of the Limitation Act. If an applicant wants
enforcement of Article 28 and any contract in that behalf it has to ask for it.
Bangladesh
Shilpa Rin Songstha vs Haque Brother (Carbide) Ltd 46 DLR (AD) 39.
Order XLVII rule 1-
Review-Extent
and scope-The right to review any decision of a Court, like the right to
appeal, is a substantive right and not a mere matter of procedure. There
appears to be no rule making the provision of section 114 CPC inapplicable to
High Court Division in exercise of its original civil jurisdiction.
Khapan
Bittahin Co-operative Society Ltd vs Nagendra Mahisya Das, Secretary, Nijkurua
Matsyajibi Samabaya Samity Ltd and others 45 DLR 502.
Order XLVII rule 1 –
When there
is an omission on the part of a court to take notice of a provision of law an
application for review under Order XLVII, rule 1 CPC is competent.
Mathura
Mohan Pandit being dead his heir Sudhir Chandra Das vs Hazera Khatun 48 DLR
190.
Order XLVII rule 1 –
Principles
of law settled by this Court normally operate prospectively unless those are
retrospectively made applicable by express words.
Jalaluddin
alias Faruque and others vs Ehsanuddin and others 49 DLR (AD) 116.
Order XLVII rule 1 –
A review was
never meant and allowed to be utilised as another opportunity for rehearing the
matter which is already closed by a final judgment.
Nurul
Hussain vs Government of the People’s Republic of Bangladsh 49 DLR (AD) 108.
Order XLVII rule 1 –
Unless a
prayer for review is based on the grounds mentioned, the Court will not sit on
the matter again for a rehearing or further hearing which is already concluded
by decision.
Fazle Karim
and others vs Government of Bangladesh 48 DLR (AD) 178.
Order XLVII rule 1 –
Review will
lie where a party to a suit or proceeding failed to adduce evidence necessary
for disposal of the suit or a proceeding or the court have missed an important
evidence to consider, which if considered, the result of the suit or dte
proceeding could have been different.
Solaiman
(Md) vs Begum Rezia Khatoon 49 DLR 437.
Order XLVII rule 1 –
New and
important matter or evidence must have a material bearing, on the merits of the
case. Otherwise, the court will not permit discovery of the new and important
matter or evidence to be used for review of the judgment.
Halima Jaman
and others vs Government of Bangladesh 50 DLR 352.
Order XLVII rule 1 –
Review may
be granted only for sufficient grounds akin to those of Order XLVII rule 1 of
the Code. To permit a review on the ground claimed by the petitioners will
amount to rehearing of the matter and our sitting on appeal over our own
judgment which is not permissible in law.
Abul Hossain
and 3 others vs Bangladesh represented by the Secretary, Ministry of Land and
others 51 DLR (AD) 116.
Order XLVII rule 1 –
There being
specific finding and decision in the appellate judgment on the point of
maintainability of the suit after considering the materials on record, the same
point cannot oe a ground for review.
Fatema
Khatun vs Wach Khatun and others 51 DLR 28.
Order XLVII rule 1 –
No
jurisdiction is available to a Court to interfere with a judgment on the ground
that there is absence of proper assessment of evidence.
Fatema
Khatun vs Wach Khatun and others 51 DLR 28.
Order XLVII rule 1-
Grounds
aimed at taking another opportunity for rehearing of a matter cannot be allowed
in review.
Fatema
Khatun vs Wach Khatun and others 51DLR28.
Order XLVII rule 1-
A wrong
decision on interpretation of certain provision of law or principle laid down
in a decision relied upon by a court are no grounds for review.
Zenith
Packages Limited vs Member Labour Appellate Tribunal Dhaka and others 52 DLR
(AD) 160.
Order XLVII rule 1-
Reconsideration
of points wrongly or rightly considered in an appeal decided by this Division
without betraying apparent error on the face of record is no ground of review
of a judgment.
GM, Jamuna
Oil Company Ltd vs Chairman, Labour Court 53 DLR (AD) 28.
Order XLVII rule 1-
The High
Court Division does not appear to have committed any error of law by not giving
a chance to the petitioner to try its luck once again on the plea of discovery
of additional evidence.
Islamic
Foundation Bangladesh vs Firoz Alam and others 53 DLR (AD) 48.
Order XLVII rule 1-
The general
principle is that in discharging the judicial function of the court it has the
duty of resolving issues of law properly brought before it and once it is done
the finality is reached and once the finality is reached a judgment can be
reviewed only on certain laid down principles.
Ekushey
Television Ltd and another vs Chowdhury Mahmood Hasan and ors 55 DLR (AD) 26.
Order XLVII rule 1-
A review is
by any means an appeal in disguise whereby an erroneous decision is reheard or
corrected-Its lies on patent error but no such patent error could be pointed
out.
Mia Lutfi
Hossain Khasru and others vs Bangladesh and others 55 DLR (AD) 74.
Order XLVII rule 1-
The task
before the court is not only to weigh or evaluate or reflect profound concerns
and views but more, to ascertain and apply the law of the land on review as it
now stands understood.
Ekushey
Television Ltd and another vs Dr Chowdhury Mahmood Hasan and ors 55 DLR (AD)
26.
Order XLVII rule 1-
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.
Ekushey
Television Ltd and another vs Dr Chowdhury Mahmood Hasan and ors 55 DLR (AD)
26.
Order XLVII rule 1-
If it can be
shown that the situation differs from that which was taken for granted at the
time of hearing of the appeal or the petitions for leave to appeal the decision
in a review petition may be different. But no alternative situations were
presented before the Court at the hearing of the review petitions.
Ekushey
Television Ltd and another vs Dr Chowdhury Mahmood Hasan 55 DLR (AD) 26.
Order XLVII rule 1-
The
elaborate arguments that have been advanced was done at the leave petitions but
those have come to an end with the rejection of the leave petitions by the
petitioners and cannot be reopened in a review petition.
Ekushey
Television Ltd and another vs Dr Chowdhury Mahmood Hasan 55 DLR (AD) 26.
Order XLVII rule 1-
Omission to
place the relevant decision at the hearing of the suit or appeal is not a
mistake or error apparent on the face of the record so as to invoke the
provision of review.
Akbar
Hossain (Md) vs MD, Agrani Bank and others 54 DLR (AD) 21.
Order XLVII rule 1-
A review is
by no means an appeal in disguise whereby an erroneous decision even if there
be is reheard and corrected but lies only for patent error.
Abul Hossain
vs Jahiruddin 54 DLR (AD) 69.
Order XLVII rule 1-
Since the
judgment in the writ petition was obtained by the respondent writ petitioner
behind the back of the review petitioners adversely affecting their interest
the same is set aside on review.
MA Bari and
others vs Uttara Sarkari Officers Quarter Kallayan Samity & ors 55 DLR 289.
Order XLVII rule 1-
Provision of
Article 102(2) or any other provision of the Constitution do not preclude the
High Court Division either to re-consider or to review the correctness of its
judgment upon fresh material(s).
Serajuddin
Ahmed and others vs AKM Saiful Alam and others 56 DLR (AD) 41.
Order XLIV rule 23-
There is no
provision that after remand of the suit to the trial Court, plaintiff again
shall have to serve notice/summons upon defendant who was contesting the suit.
Nurul Islam
(Md) and others vs Md Maniruddin Bepari and others 49 DLR 351.