Understanding Provisions Under Order XXXIX of CPC
Order XXXVII rules 2 and 3-Summary suit-Leave from Court to defend- The scheme of Or. XXXVII is summary one and a departure from the procedure provided for ordinary suit. In the instant case there being no application filed within time mentioned in the summons, the question of granting leave does not arise. On the failure of the defendant to obtain the Court’s leave to defend, the plaintiff is entitled to a decree. Javed Traders vs Premier Soap Factory Ltd 44 DLR 490.
Order XXXVII rule 2-In view of our decision that a fixed deposit is not a promissory note and not a negotiable instrument, Order XXXVII of the CPC is plainly not applicable to the instant three suits filed on three fixed deposits. Ansarul Huque vs Agrani Bank 48 DLR 479.
Order XXXVII rule 3-District Court Judge can only grant a defendant leave to appear and defend the suit ifthe defendant raises a triable issue. Khan and Company Ltd vs Presiding Judge of the District Court and others 54 DLR 121.
Order XXXVII rules 3 and 2-Summary suit-Leave from Court to defend-the scheme of Order XXXVII is summary one and a departure from the procedure provided for ordinary suit. In the instant case there being no application filed within time mentioned in the summons, the question of granting leave does not arise. On the failure of the defendant to obtain the Court’s leave to defend, the plaintiff is entitled to a decree. Javed Traders vs Premier Soap Factory Ltd 44 DLR 490.
Order XXXVII rule 4 – An order setting aside an ex parte decree must be speaking order satisfying the special circumstances envisaged in the Rule. Duree Shahwar Begum vs Ali Ahmed Patwari 48 DLR 222.
Order XXXVIII rule 1-Warrant to arrest the defendant-As the suit is for determination of right to immovable property, the Subordinate Judge had no jurisdiction to pass the order of arrest of the defendant nor such an order could be passed in exercise of the Court’s inherent jurisdiction. Mosharraf Hossain Mia vs Mosammat Hasina Begum 43 DLR 254.
Order XXXVIII rule 5-Attachment (of the defendant’s property) before judgment-The Court is to direct the defendant either to furnish security or to show cause why he should not furnish security. An order of attachment of the defendant’s property before asking him to show cause against attachment not legal and cannot be upheld. Lokman Hossain vs ATM Sadek Hossain 37 DLR 220.
Order XXXVIII rule 5-In regard to Admiralty Court, provisions of Orders XXXVIII, rule 5 for attachment before judgment is not applicable. Kings Shipping Trading Co vs Messrs LS-Line & others 38 DLR 30.
Order XXXVIII rule 5-0rder for attachment of defendant’s property on an application that discloses no particulars of property suffers from error of law. lsrail Hossain vs Himalaya Ice & Cold Storage Ltd 46 DLR 44.
Order XXXVIII rule 5-Where an order of attachment is liable to be set aside, the bank guarantee furnished pursuant to such order is also liable to be returned for cancellation. Eurco Explorer Co Ltd and others vs Grain Bank Ltd 45 DLR 591.
Order XXXVIll rule 5-In the aforesaid premises, the proceeds of the letter of credit do not squarely come within the provision of Order XXXVIII rule 5 for attachment before judgment for which the Court could interfere asking for furnishing security or by attachment before judgment in order to satisfy any possible decree that may be passed in the suit. Gooryonly (BD) Textile Ltd vs Chartkar Information Holding Ltd and ors 54 DLR (AD) 70.
Order XXXVIII rules 5 and 8- Attachment of a chartered ship before judgmentWhether a ship under voyage charter is liable to attachment for the dues of the charterer under a voyage-charter-Even if the contention of the petitioner is accepted and it is found that the ship in question reached territorial waters of Bangladesh under a time charter the ownership and also the possession of the ship remained with the original owner through the master and the crew who continued to be his servants. The opposite party being a voyage charterer as found by the Court below and he not being the owner of the ship in any manner the ship in question was not liable to be attached before judgment at the instance of the petitioner. Bangla Jalpari Lines (Pvt.) Ltd vs Continental Grain Company (Canada) Ltd & others 43 DLR 617.
Order XXXVIII rules 5 & 6-The object of the provision is not to pass an order which has the effect of stoppage of the business activity by attachment of bills receivable. Nirman International Ltd vs Islam Steel Mills Ltd and others 50 DLR 125.
Order XXXVIII rules 5-10-The power of attachment before judgment being a power interfering with a party’s right to enjoy its own property, the court should be circumspect in allowing the prayer for such attachment. Islam Steel Mills Ltd vs Nirman International Ltd and others 50 DLR (AD) 21.
Order XXXVIII rules 5(I) & 5(3), 6(1)-The order of attachment on the face of it is illegal and liable to be set aside the court could have taken into consideration the question of security as the first alternative in accordance with the provision of this Order. Habibur Rahman Khan vs Nurul Islam Khan 50 DLR 82.
Order XXXIX rule 1 – Injunction in a partition suit restraining defendant from making any construction on the joint property.
The plaintiff instituted the suit for partition the defendants being the co-sharers with the plaintiff in respect of the land, the subject-matter of partition. The plaintiff also filed an application under Orders XXXIX, rule I CPC for injunction restraining the defendant from making any construction in the suit property till the disposal of the suit. Defence was the defendant was in · possession of specific portion of the land in suit and as such no injunction order restraining the defendant should be made.
Held: Since this is a suit for partition, for ends of justice and equity it is most convenient, practicable and reasonable that both the parties should maintain status quo till disposal of the suit. Mst Estema Khatun vs Azizul Haque 37 DLR 302.
Order XXXIX rule 1- The petitioner was not expected to know when the boycott of the Munsifs Court was ended and as such the petitioner had sufficient cause for not filing his petition within the prescribed time limit. Shaikh A Kader vs Kalu Sk 37 DLR 304.
Order XXXIX rule 1-Grant of relief by way. of temporary injunction-Under Order XXXIX, rule I, CPC the Court need not enter into the merit of the case as is necessary for passing a decree after hearing the evidence of the parties. Md Nurul Huq vs Bangladesh Bank 39 DLR 310.
Order XXXIX rule 1-Definition as given in section 2(13) oflndustrial Relations Ordinance includes all disputes as contemplated in IROLabour Court constituted under the Ordinance shall be deemed as a Civil Court for the purpose of adjudication of all industrial disputes including granting of injunction, etc. Pubali Bank vs Chairman 39 DLR 128.
Order XXXIX rule 1 – Whether a co-sharer in specific and separate share of the ejmali property is entitled to retain his possession till legal partition by injunction against another cosharer threatening dispossession.
This appeal has been brought by special leave to consider a question of considerable public importance. It is whether a co-sharer in ejmali property, when he has been in exclusive possession of a specific and separate share thereof, well demarcated by boundaries, is entitled to retain his possession till legal partition, by an order of injunction against another co-sharer who threatens him with dispossession.
High Court Division, on an erroneous view of law, reversed the decision of the trial Court and the lower appellate Court rightly answered the question that injunction can be granted against a co-sharer who threatens another co-sharer with dispossession. The only question of law agitated in the suit all through was whether an injunction could issue at the instance of a co-sharer in exclusive possession of a separate and well-defined share against another co-sharer who threatens the former with dispossession. This question was rightly answered by the trial Court and the appellate Court but the learned Single Judge on an erroneous view of law reversed their decision. Moharram Ali vs Mahammad Madhu Mia 41 DLR (AD) 92.
Order XXXIX rule 1 – A relief of temporary injunction cannot be granted for the mere asking of it.
A relief of temporary injunction cannot-be granted just for the’ mere asking of it after filing of a suit as has practically been done in his case. The principles governing the exercise of discretion in such matter are well known and have also been indicated above as are relevant for the present purpose. In view of the foregoing discussion we must hold that the exercise of discretion in the instant case has not been made upon correct judicial principles. Bangladesh Sericulture Board vs Md Fazlur Rahman Akunjee 41 DLR (AD) 25.
Order XXXIX rule 1-For claiming a relief of temporary injunction the plaintiff must satisfy as to a prima facie nature of his case.
The Court can consider a prayer for temporary injunction when the impugned order is on the face of it without jurisdiction or in violation of any law or rule.
In a case where the order impugned appears to be without jurisdiction on the face of it or in violation of any law or rule governing the employment in service a court can legitimately consider a prayer for temporary injunction pending disposal of the action. In matters of service a court has also to keep in view the difficulties and problems that are likely to be created in the matter of administration in that particular office or organisation before allowing a prayer for temporary injunction. This is an aspect of the principle of balance of convenience and inconvenience of the parties before the court. Bangladesh Sericulture Board vs Md Fazlur Rahman Akunjee 41 DLR (AD) 25.
Order XXXIX rule 1-High Court Division, having set aside the injunction order omitting from consideration the material points i.e. payment of money and possession of land by the appellant, did not properly exercise its discretion in interfering with order of injunction. Momin Miah vs Moinuddin 42 DLR (AD) 175.
Order XXXIX rule 1-lmpugned order does not show that there is a prima facie case in favour of the plaintiffs-No application of mind by the Assistant Judge while passing the impugned order of ad-interim injunction. Wahid Sadeque vs Mozibar Rahman Chowdhury 42 DLR 220.
Order XXXIX rule 1-Plaintiffs tenure to establish prima facie case for temporary injunction-Non-consideration of two other points has not caused any failure of justice.
But when plaintiff-petitioners have failed to establish any prima facie case for temporary injunction, then even non-consideration of the other two points or absence of any specific findings thereon cannot cause any failure of justice or vitiate the impugned order. So, this contention of the learned Advocate for the petitioners also fails. Md Osman Goni vs Begum Tafatun Nahar 41 DLR 151.
Order XXXIX rule 1-Appointment of a receiver when “just and convenient”-Court explains as to what is conveyed by the expression “just and convenient”. Afruz Mia vs Siraj Mia 39 DLR 360.
Order XXXIX rule 1-A bonafide possession of the property in dispute should not be disturbed by appointment of a receiver unless a property case is clearly made out. Md Afruz Mia vs Siraj Mia 39 DLR 360.
Order XXXIX rule 1-The discretionary relief of temporary injunction having been granted by the courts below the High Court Division was not correct in disturbing the same without taking into consideration the finding of fact on consideration of which the injunction was granted. Rupban Bibi vs Aynal Kha and others 44 DLR (AD) 144.
Order XXXIX rule 1-Injunction in ejmali property-If temporary injunction results in giving possession of a part of an ejmali property held by member of the same family to a stranger then it should not be granted without first specifying the land. Alauddin vs Yusuf 45 DLR 328.
Order XXXIX rule 1 – The plaintiffs admittedly could not participate in the bid as they were allegedly obstructed by armed miscreants. As such they have no prima facie right to collect tolls from the suit hat for 1398 BS. If they sustain loss due to alleged illegality in holding the auction, they may realise compensation. Aslam Hossain Chaklader vs Ali Nur 45 DLR 366.
Order XXXIX rule 1 – The plaintiff prima facie being owner and earlier user of the trade mark is entitled to restrain the defendant by an order of temporary injunction. Nasir Miah, Malik Nasir Soap Factory vs Md Anwar Hossain, Executive Officer, Commander Soap Factory Ltd 48 DLR 28.
Order XXXIX rule 1-When the High Court Division is in seisin of the matter relating to disputed roads on the question of exercise of right of easement, the defendant cannot obtain any order of status quo in respect of the self-same road by filing a separate suit. Anwarul Hakim and others vs Ramij Ali and others 47 DLR 531.
Order XXXIX rule 1-In view of the earlier decision in writ petition that the plaintiff had no title, his claim for temporary injunction in respect of the suit land is not maintainable. Chairman, Rajdhani Unnayan Kartipakhya and others vs Abul Hossain & others 50 DLR 249.
Order XXXIX rule 1-When the documents submitted by the petitioner discloses a prima facie case, an order of temporary injunction, instead of order of status quo, be passed to avoid complication in view of present social condition of litigant public to use force to come into possession. Kalur Hat KC Bilateral School vs Sabbir Hossain Chowdhury & others 52 DLR 102.
Order XXXIX rule 1-When permanent injunction cannot be granted in the facts and circumstances of the case the plaintiff is not entitled to any order of temporary injunction. Mojibul Haque (Md) vs Ataur Rahman and others 53 DLR 229.
Order XXXIX rule 1-Scarcity of land and pressure for accommodation for residential or commercial purposes in urban areas are growing while the time for resolution of a dispute is so uncertain that nobody can say when it will finally come to an end. In such situation, right of a cosharer to develop the land in his specific possession cannot be denied by an interlocutory order of injunction till partition, which would be inequitable. Abul Kalam Engineer and another vs M Nasiruddin Howlader and others 54 DLR 515.
Order XXXIX rule 1-A person to a litigation cannot do any act to bring about. a change in the state of things existing at the date of the suit in order to forestall a possible order of the Court. Upazila Education Officer & another vs Tara Miah Akhand and others 56 DLR (AD) 203.
Order XXXIX rule 1 and section 151 -Whether the High Court Division can interfere with the discretionary power of the Election Tribunal exercisable under Order XXXIX, rule 1 and section 151 of the Code of Civil Procedure.
Can the Election Tribunal constituted under Ordinance 51 of 193 3 issue an order of injunction either under Order XXXIX, rule 1 or section 151 of the Civil Procedure Code? This is the main question before this court in this Rule. Other questions that incidentally arise are whether this court can interfere with the order of Election Tribunal in exercise of its revisional jurisdiction and whether it is proper for this court to interfere with the discretionary order of the Election Tribunal. An Election Tribunal constituted under the provisions of the Local Government Ordinance, 1976 being not a civil court cannot grant temporary injunction under Order XXXIX, rule I CPC. The Election Tribunal not being a civil Court had no power to grant temporary injunction under Order XXXIX, rule 1 for similar reasons as given under the decision case of Shamsul Hoque Sikdar. Subsequently in the case of Abdul Gafur vs Election Tribunal and Munsif Second Court, Feni a Division Bench of this Court constituted of Ruhul Islam CJ (as he then was) and MH Rahman J, decided that an Election Tribunal acting as such was not competent to issue temporary injunction under Order XXXIX, rule l, CPC as the Election Tribunal was not a civil Court. This decision was in respect of a dispute within the Ordinance of 1976. Mahmud Hussain vs Sayb Ali 41 DLR 44.
Order XXXIX rule 1, section 115(1) and Order XLIII rule 1(r)-On an application for temporary injunction in a suit for declaration of title, the learned Assistant Judge, Dhaka passed an ad-interim order of injunction restraining the defendant Nos.1-13 from acting as the officebearers of Bangladesh Chalachitra Paribeshak Samity- The defendant as petitioner, preferred the instant Civil Revision under section 115 CPC against the said order of injunction as the forum of appeal remained closed because of the vacation of the Civil Court from the 1st December to 31st December, 1989. During the said vacation there was no forum of appeal for the petitioners to file an appeal before the learned Division Judge against the said order of injunction passed by the learned Assistant Judge.
The plaintiff opposite party challenged the propriety of the issuance of the Rule under section 115(1) CPC on the ground that the impugned order was appealable under Order XLIII, rule l(r) CPC and as such revision does not lie.
Held: On consideration of the facts and circumstances of the case and the decisions cited from the Bar, the High Court Division is of the opinion that revision is not barred merely because the impugned order is appealable to the Court of District Judge. Wahid Sadeque vs Mozibar Rahman Chowdhury 42 DLR 220.
Order XXXIX rule 1, Section 151-Though the appeal of the writ-petitioner was dismissed but the ad-interim order of injunction passed during the pendency of the appeal was a valid order required to be complied with-Writrespondent not having complied with the same, the writ-petitioner was entitled to restoration as ordered. Government of the People’s Republic of Bangladesh and another vs Md Shamsul Haque and anr 56 DLR (AD) 101.
Order XXXIX rule 1 read with section 151-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. Mobasher Hossain (Md) and others vs Saidur Rahman (Pvt) Ltd and others 55 DLR 51.
Order XXXIX rule 1(3)-Proceeding under this provision of law is quasi-judicial in nature—for punishment under this provision the petitioner is to prove strictly his case of disobedience of an order of injunctions; the opposite party is under no obligation to prove his innocence. Rafiqul Hossain@ Ranaesh vs Lal Mohan Saha & others 45 DLR 718.
Order XXXIX rules 1 and 2-There is no specific area or demarcation of the land allegedly encroached by the defendants opposite parties; in such a case no order of temporary injunction can be granted. Fahim Al Haque vs Mohammad Abdul Aziz 43 DLR 226.
Order XXXIX rules 1 and 2 – In a partition suit concerning land in the urban area a co-sharer should not be granted injunction if the proposed construction by other co-sharers does not diminish the value of the suit land. Fahim Al Haque vs Mohammad Abdul Aziz 43 DLR 226.
Order XXXIX rules 1 and 2-Ad-interim Injunction, propriety of-As the plaintiff did not get any injunction from either of the courts below and the application for revision was moved after more than 3 months of the refusal of injunction by the court of appeal below, the granting of adinterim injunction ex parte at the time of issuing the Rule could not be said to be a proper exercise of discretion. Rather, it should be considered an unusual order in the facts of the case. Quazi Nowab Faruque vs Abdul Latif Bhuiyan 43 DLR (AD) 101.
Order XXXIX rules 1 & 2-A person who is aware of an order of the Court is bound to obey the same even though he was not a party to that when it affects the result of the earlier order. Bangladesh Bank and others vs Zafar Ahmed Chowdhury and another 53 DLR (AD) 70.
Order XXXIX rules 1 and 2-Injunction against Government-under Martial Law Order 40/82 imposing a bar on court’s jurisdiction to issue temporary or ad-interim injunction when it will interfere with development plan or harmful to public interest. Md Ismail Hossain Pashary vs Most. Fatema Bewa 38 DLR 221.
Order XXXIX rules 1 and 2-Apart from ad-interim injunction order which may be refused if conditions for granting temporary injunction are fulfilled, it should be granted. Md Ismail Hossain Pashary vs Most. Fatema Bewa 38 DLR 221.
Order XXXIX rules 1 and 2-lnjunction prayer for stay of execution of a decreeConsideration which should weigh with court in a matter like this-Presumption as to regularity of judicial acts-A decree-holder should not be deprived of the fruits of the decree. Md Abbas Ali vs SM Monsur Ali 38 DLR 227.
Order XXXIX rules l and 2-Decree passed assailed as obtained by a fraud unless materials indicative of such fraud produced, while asking for temporary injunction, court would be averse to grant the prayer. Md Abbas Ali vs SM Monsur Ali 38 DLR 227.
Order XXXIX rules 1 and 2-Temporary injunction can be given in a suit for simple declaration without consequential relief. Bangladesh Supreme Court Bar Association vs MH Khandkar, Senior Advocate 38 DLR 253.
Order XXXIX rules 1 and 2-Election Tribunal is not a court. Election Tribunal, though happens to be a judicial officer and appointed by the Government, does not become a Civil Court within the meaning of Civil Procedure Code and cannot as such grant temporary injunction in an election case. Abdul Mazid Howladur vs Al-haj Majbul Hoque Talukder 38 DLR 262.
Order XXXIX rules 1 and 2-An Election Tribunal is a creature of statute for some special purpose and not a civil Court subordinate to the High Court Division. Bangladesh Supreme Court Bar Association vs MH Khandkar, Senior Advocate 38 DLR 253.
Order XXXIX rules 1 and 2-Election Tribunal though he may himself be a Munsifis not a Court and as such not competent to grant temporary injunction. Abdul Majid Howlader vs Alhaj Mozibul Haque Talukder 38 DLR 262.
Order XXXIX rules 1 and 2-Failure of successive District Judges-in-charge to pass any order upon hearing an application for injunction is deprecated and an ad interim injunction is granted restraining the defendants from using the disputed trade marks or any other trade mark resembling that of the plaintiff with the direction to hear the application for injunction. Social Marketing Company vs Universal Pharmaceuticals Ltd and another 50 DLR 587.
Order XXXIX rules 1 and 2-ln all companies either private or public for holding a board meeting a written notice shall be given to every director and civil Court may not interfere when there is a valid meeting. When there is prima facie and invalid resolution the civil Court can interfere. The respondents are restrained by an order of temporary injunction from acting on the alleged resolution of the Board of Directors. Ittefaq Group of Publications Limited & others vs Arab Bangladesh Bank Limited & others 50 DLR 597.
Order XXXIX rules 1 and 2-Respondents deserve to be heard in order to see the rightness of the petitioner’s case based on requirement of non-arbitrariness in a State action, and not on any legal right, before any order of injunction is passed. Mohsin Mia vs Bangladesh represented by the Secretary Ministry of Forest and Environment & others 49 DLR (AD) 66.
Order XXXIX rules 1 and 2-Interlocutory order by the High Court Division when passed upon hearing both the sides and in exercise of is discretion, unless the discretion has been exercised fancifully merits no consideration for interference. Abul Ahsan, former President of the Chamber of Commerce and Industry, Pabna vs Administrator of Pabna Chamber of Commerce and Industry and another 49 DLR (AD) 46.
Order XXXIX rules 1 and 2-Since the membership of the petitioner is there no more, he cannot be allowed to enter the club premises and take part in its activities which may disturb harmony among club members. Monwar Ali vs Dhaka Club Ltd & others 48 DLR 492.
Order XXXIX rules 1 and 2-Mandatory injunction on an interlocutory application may be granted to restore status quo. The Court has inherent jurisdiction to pass an order of mandatory injunction in a proper case. Amirul Huq Shameem and others vs AKM Shamsuddin and others 49 DLR 77.
Order XXXIX rules 1 and 2-Mere presence of a prima facie case or arguability thereof will not by itself be a ground for issuing temporary injunction. The applicant must show further that irreparable injury will occur to him if the injunction is not granted. Sarhind Garments Ltd vs Glory Truth Industries Ltd and another 49 DLR 260.
Order XXXIX rules 1 and 2-The balance of convenience rule has no place where the applicant’s right is doubtful, or where he can be compensated by damages in money, or where the wrong might have been redressed if the applicant was sufficiently vigilant. Sarhind Garments Ltd vs Glory Truth Industries Ltd and another 49 DLR 260.
Order XXXIX rules 1 and 2-No prohibitive order can be passed by a Court to interfere with the normal banking transaction and also the contractual obligation of the Bank when the only dispute is as to the performance of contract and when dispute can be resolved by bringing an appropriate action for damages. Sarhind Garments Ltd vs Glory Truth Industires Ltd and another 49 DLR 260.
Order XXXIX rules 1 and 2-Unauthorised possession cannot be protected by an order of injunction which is an equitable relief. Ramjan alias Mintu Miah vs Emtashem Hussan alias Babu Meah and others 47 DLR 359.
Order XXXIX rules 1 and 2-Temporary mandatory injunction-It is an error of law to grant such an order of injunction directing to reconnect the gas line when disconnection of the line was done in exercise of performing legal duties. Chairman, Bangladesh Oil, Gas and Mineral Corporation and others vs Md Abul Kashem 47 DLR 413.
Order XXXIX rules 1 and 2-In deciding the matter of temporary injunction maintainability of the suit should not be gone into and decided, particularly when there will be necessity of evidence at the trial of the suit for correctly deciding such issue. Jamalpur Fishermen’s Cooperative Society Ltd vs Deputy, Commissioner, Kishoreganj and others 47 DLR 573.
Order XXXIX rules 1 & 2-Granting or refusing injunction is an equitable relief. It should be used in aid of equity and fair justice. It is well settled that one who comes for equitable relief must come with clean hands. Here the plaintiffs came with unclean and dirty hands and, as such, they are not entitled to any equitable relief. Khaleda Rahman & another vs Integrated Services Limited and ors 53 DLR 161.
Order XXXIX rules 1 & 2-If the offending Trade Mark of the defendants infringes the Trade Mark rights of the plaintiff then no amount of monetary consideration can come in the way to restrain the defendants from using a Trade Mark even nearly resembling that of the plaintiff. Hamza Rubber Industries vs Galam Dastagir Gazi 53 DLR 430.
Order XXXIX rules 1 & 2-The right to get supply of the gas created by the contract is subject to the obligation to pay the bills of the gas consumed. In case of default, the right to supply of gas stands forfeited. Titas Gas vs Immense Washing Plant and others 53 DLR 471.
Order XXXIX rules 1 & 2- The Court of appeal below granted mandatory injunction for restoration of connection without any security against huge arrears, and without any terms whatsoever. Such order has rendered the terms of the contract practically suspended. Titas Gas vs Immense Washing Plant and others 53 DLR 471.
Order XXXIX rule 1 & 2-In matters of interlocutory injunction, the Court normally should not enter into the merit of the suit and decide whether a suit is maintainable or not. Molla Mahjenul Islam vs State and ors 53 DLR 552.
Order XXXIX rules 1 & 2-Where the final relief cannot be granted in the terms sought for because the statute bars granting such a relief, ipso facto the temporary relief of the same nature cannot be granted. Molla Mahjenul Islam vs State and ors 53 DLR 552.
Order XXXIX rules 1 & 2-The pendency of an application for registration before the Registrar of Trade Marks or even the granting of a provisional certificate of registration of the mark does not debar a civil Court in a suit for infringement of a trade mark from passing an order of temporary injunction against the use of the mark where there is the likelihood that the mark would deceive or cause confusion in the minds of unwary purchas. Abdul Mannan Miah vs Md Salaiman Miah 54 DLR 394.
Order XXXIX rules 1 and 2-Since rent receipts are evidence of possession and collateral evidence of title and in a suit for permanent injunction where the plaintiff did not mention the boundary of the specific plot and there is no specific demarcation, granting injunction in favour of the plaintiff cannot be sustained. Kala Chand alias Chand Mia & others vs Karim Khan and others 55 DLR 564.
Order XXXIX rules 1 & 2-The contention of the Counsel for the petitioners that Courts are always slow in granting injunction in an arbitration matter is not absolute one since in an appropriate case the Court is very much competent to make an order of injunction in the background of the facts of a particular case. Unicoi Bangladesh Blocks Thirteen and Fourteen (formerly named Occidental of Bangladesh) and another vs Maxwell Engineering Works Ltd and another 56 DLR (ADJ 166.
Order XXXIX rules 1 and 2-There is no law empowering a court to grant mandatory injunction for payment of any portion of the amount claimed in a suit for a money decree for work done. MR Trading Co vs Superintendent Engineer and others 56 DLR 470.
Order XXXIX rules 1 and 2-An order of mandatory injunction or mandatory ad interim injunction is an extremely harsh and highly discretionary order passed at the discretion of the Court to restore a situation existing on the date of filing of the suit or occurred after filing of the suit and in breach of any order of the Court. Such order cannot be passed to restore or bring back a situation which was not in existence on the date of filing of the suit. Nurul Islam and ors vs Khatibuddin Ahmed and ors 56 DLR 545.
Order XXXIX rules 1, 2 and 3 — Show cause notice about injunction – Whether appeal lies against the relevant order – The Order cannot be termed an order of refusal of the plaintiff’s prayer for temporary ad interim injunction. An order must be a formal expression of the decision of the court but in the impugned order there is no such formal expression. It is an order simpliciter for notice upon the opposite party to show cause why injunction should not be issued and as such it is no order under rules 1 & 2 but an order under rule 3 and it does not fall within the category of an appealable order. Bengal Waterways Ltd vs Inland Water Transport Authority & others 46 DLR 179.
Order XXXIX rules 1, 2 and 4-An order of interim injunction is to be passed keeping in view the principles that the Court will not normally interfere with the internal management of a Company and with the decision of a domestic tribunal. Shafiuddin Sarwar vs Dhaka Club Limited 45 DLR 753.
Order XXXIX rules l, 2 and Section 151- Mandatory injunction would be available if dispossession had taken place during the pendency of the suit or during an order of ad interim injunction. Ministry of Communication, Railway Division, People’s Republic of Bangladesh vs Md Ferozur Rahman 45 DLR 762
Order XXXIX rules 1, 2 and Section 151- A licence which is by nature revocable cannot be specifically enforced and in a case relating to a contract which cannot be specifically enforced no injunction could be allowed. Ministry of Communication, Railway Division, People’s Republic of Bangladesh vs Md Ferozur Rahman 45 DLR 762.
Order XXXIX rules 1 & 2 & Section 151- No injunction can be granted against operation of bank account and withdrawal of the money in deposit as per terms of contract. The account being opened with a specific condition setting the act of operation of payment, the Bank is bound to comply with the condition on which it has accepted the deposit. Ziauddin Ahmed and others vs Arab Bangladesh Bank 53 DLR (AD) 107.
Order XXXIX rules 1, 3 & 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 Shere Bangla Balika Mahavidalay 46 DLR 336.
Order XXXIX rule 2-lnjunction when granted-The right to obtain an injunction is ancillary to a right to file a suit and the only requirement is whether the plaintiff has an arguable prima facie case and whether he will suffer irreparable loss if the injunction is not granted. Deputy Secretary Ministry of Commerce vs Nizamuddin Haider 37 DLR 102.
Order XXXIX rule 2-Temporary injunction-Question of issuing such injunction in a suit for declaration simpliciter. If the suit is otherwise maintainable and it is found that the defendant without being in possession, wants to disturb the plaintiffs possession, the court cannot be powerless to grant temporary injunction in an appropriate case. An order granting injunction must be a speaking order. Ramani Marak vs Jamini Marak 46 DLR (AD) 51.
Order XXXIX rule 2(3)-Allegation for violation of an injunction order passed by Civil Court under Order XXXIX, rule 2(3) partakes of a quasi-criminal nature-the Court in such a proceeding should frame issue disclosing material particulars constituting the offence so that the person at fault may be put on his guard as to his defence. Sultan Ahmed Howladar vs Habibur Rahman Munshi 39 DLR 260.
Order XXXIX rule 2(3)-Adequate remedy having been provided against disobedience of an injunction order issued under Order XXXIX of the Code, as provided in Order XXXIX rule 2, a contempt petition is not maintainable on this score. Momena Begum vs Dhaka City Corporation and others 55 DLR 43.
Order XXXIX rule 4-Injunction-Facts of each case to be considered while granting or refusing it-Injunction being a form of equitable relief should be issued in aid of equity and justice-OP No.1 did not approach the Court with clean hands. KPM Sramik Karmachari Union vs Registrar, Trade Union 41 DLR 262.
Order XXXIX rule 4-Temporary injunction cannot be granted as it would lead to interference with and ultimately frustrate the order of the Court which was passed in the suit under section 9 of the Specific Relief Act. Monowara Begum vs Syed Ashrafuddin 40 DLR (AD) 251.
Order XXXIX rule 4-Injunction against execution proceeding, when proper-Bank’s suit for recovery of money from its debtor ended in a compromise decree permitting the debtor to sell the mortgaged property at Tk 7 lakh to clear bankdebt and the debtor was to make up shortfall. The debtor made an agreement with appellant for sale of the property for Taka 6 lakh. When the Bank started Execution Case for sale of the mortgaged property, the appellant filed a suit for specific performance of his contract against the debtor and the Bank, on the basis of the agreement, with a prayer for injunction, which was allowed. On appeal, the High Court Division set aside the injunction order omitting from consideration the material points i.e. payment of money and possession of the land by the appellant-High Court Division did not properly exercise its discretion in interfering with the trial Court’s order of injunction. Momin Miah vs Moinuddin Hossain 42 DLR (AD) 175.
Order XXXIX rule 4-Transfer of shares in a company in violation of some of its Articles of Association being a laches on the part of the Company and its directors; injunction granted to restrain such transfer cannot be sustained. Bangladesh Electrical Industries Limited & another vs Sena Kalyan Sangstha 45 DLR 749.
Order XXXIX rule 4- The inherent power of the Subordinate Judge cannot extend to interference with the order of temporary injunction passed by the Appellate Court. The Subordinate Judge has no jurisdiction to change or sit on the order passed by the District Judge in exercise of the inherent power under section 151 of the Code. Repco Laboratories Ltd vs Nuruddin Ahmed 43 DLR 123.
Order XXXIX rules 6-10-Life-span of an interlocutory order passed in a suit is restricted to a period from its date to the date when the suit is finally disposed of. It is an aid to keep the parties in even position pending adjudication of their claims and disputes in the suit. Government of Bangladesh represented by the Secretary Ministry of Industries and another vs Shafi A Chowdhury and another 47 DLR 567.
Order XXXIX rule 7- The plaintiffs got a temporary injunction restraining defendant No.1 from disturbing their possession in their specific areas. The order of injunction was violated by defendant No. 1 who was held guilty, convicted and sentenced to civil imprisonment. The conviction was upheld by the District Judge but set aside by the learned Single Judge, who took an erroneous view of law. Moharram Ali vs Mohammad Madhu Mia 41 DLR (AD) 92.
Order XXXIX rule 7- Rule 7 of Order XXXIX was not attracted to the seizure of accounts books. The case of Padam Sen and another vs State of UP AIR J96J(SC) 218 arose out ofa suit for realisation of money on the basis of a promissory note alleged to have been executed by the defendants in favour of the plaintiff. The defendants apprehended that the plaintiff would fabricate his books of accounts with respect to payments made by them and applied for the seizure of the account books. The Indian Supreme Court held that accounts books were not the subject matter of the suit, and rule 7 of Order XXXIX of the Code was not attracted. Md Mobarak Hossain vs Md Mustafa Hossain 40 DLR (AD) 20.
Order XXXIX rule 7 – Having regard to the urgency of the situation and the necessity for passing the interim order to protect the rights or to secure the interest of justice, any order passed by the Court without giving notice to the opposite party is not illegal. Mohammad Mobarak Hossain vs Mohammad Mustafa Hossain 40 DLR (AD) 20.
Order XXXIX rule 7 – Local inspectionIn view of the averments made by the contending parties it appears that in order to ascertain whether the deed of gift was acted upon, that is, whether possession of the land in question was delivered to the donee is a material question and as such local inspection as petitioned for by the plaintiff to ascertain whether there is any house on the suit land is neither irrelevant nor unnecessary. The trial Court is accordingly, directed to allow the prayer for local inspection. Mahmud Ibne Abbas vs Begum Momtaz Hossain 45 DLR 421.
Order XXXIX rule 7 – Detention or preservation or inspection for the purpose of detention or preservation of the subject matter of the suit or as to which any question may arise in the suit can only be ordered under rule 7, if it is in possession, custody or power of the other party. Ministry of Industries and another vs Shafi A Chowdhury and another 47 DLR 567.
Order XXXIX rule 7-It will not be fit and proper to allow an inspection when the plaintiffs admittedly obtained possession of the unit in 1984 and when, after having unilaterally enjoyed possession thereof for five years, applied for inspection in 1989. Shafi A Chowdhury & anr vs Government of Bangladesh, represented by the Secretary, Ministry of Industries 51 DLR (AD) 21.
Order XL rule 1-Service of notice, if such service is necessary in the matter of apointment of a receiver. Order XL, rule 1 of the Civil Procedure Code does not contemplate the service of notice of the application for appointment of receiver to a party. A Mannan vs Govertment of Bangladesh 39 DLR 19.
Order XL rule 1-Before passing an order appointing a receiver in exercise of its discretionary power the court has to state the circumstances under which the appointment of receiver was considered necessary. A Mannan vs Government of Bangladesh 39 DLR 19.
Order XL rule 1-Apointment of a receiver in a partition suit between members of a joint family not favoured. Md Musa vs Tazul Islam 38 DLR 134.
Order XL rule 1 – Before passing an order appointing a receiver, Court must state the circumstances under which such appointment was found proper and right. A Mannan vs Govt. of Bangladesh 38 DLR 420.
Order XL rule 1-Uniform Customs and Practice for Documentary Credits published by the International Chamber of Commerce making the said custom and practice as a part of the irrevocable letter of credit-Position of law regarding attachment of the property of the defendant for satisfaction of the decree that may be passed to frustrate any possible attempt to dispose of the property or part thereof or to remove the same out of the jurisdiction of the court stated. Janata Bank vs Messrs Ahmedia Garments 40 DLR 72.
Order XL rule 1-In the instant case it is in the letter of credit that the Bill of Exchange is to be negotiated within 15 days from shipment, the beneficiary of the Bill of Exchange is entitled to be paid by the negotiating Bank on demand. Janata Bank vs Messrs Ahmedia Garments 40 DLR 72.
Order XL rule 1-Principles of international commercial transaction and banking system as spelt out in UC and PDC. A letter of credit has an autonomy of its own and it need be negotiated or paid without any reference to the very contract out of which the credit arose. The LC is independent of any contract of sale or underlying transaction or dispute between the parties. Janata Bank vs Messrs Ahmedia Garments 40 DLR 72.
Order XL rule 1-Fraud vitiates every thing and in most cases it originates when a commercial party contracts with a rogue. Banks cannot be made to act as policemen to “police” upon any kind of fraud in international commercial transaction. No re-imbursement shall be stopped by any court of law when an authorised or negotiating bank makes any payment to a third party on the basis of papers appearing to be correct. Janata Bank vs Messrs Ahmedia Garments 40 DLR 72.
Order XL rule 1-In the instant case there existed a contractual obligation between the Janata Bank, Bangladesh to re-imburse the negotiating Bank, namely, the Bank of Tokyo, for the amount paid upon the irrevocable power of attorney opened by the Janata Bank. Defaulting seller Messrs Yama Moto Co, Japan has no subsisting interest and no attachment. Janata Bank vs Messrs Ahmedia Garments 40 DLR 72.
Order XL rule 1-There is no bar in rule I of Order XL of the Code of Civil Procedure for appointment of a receiver during the pendency of an appeal. Shamsuddin Ahmed & others vs Government of Bangladesh & others 45 DLR 675.
Order XL rule 1-The Appellate Division is loathe to interfere in the matter of appointment of a receiver unless the circumstances are of such an exceptional nature that refusal might entail a risk of clear abuse of process or some gross injustice. Akhteruzzaman vs Ali Amjad Khan and others 50 DLR (AD) 199.
Order XL rule 1-No order for appointment of receiver should be passed to deprive a de facto possessor of the property. Kamiruddin and others vs Md Mokshed Ali Biswas and others 48 DLR (AD) 14.
Order XL rule 1-There is no reason for appointment of a receiver in the instant case, particularly when the court below did not find any mismanagement or damage to the property in question. Halima Akhter Khatun and others vs Md Salauddin Khan and others 56 DLR I 72.
Order XL rule 1-A man in rightful possession of a property should not ordinarily be dislodged from possession by putting the property in the custody of the receiver unless it becomes expedient in the interest of justice. Abdul Mazid Khan and others vs Ali Howlader & ors 56 DLR 587.
Order XL rule 1 (a) — Where members of a family are in separate possession of the property for a long time, there should be no appointment of a receiver without the consent of the parties. Ali Akbar (Md) and others vs Sakina Begum and others 56 DLR 303.
Order XL rule 3 – In an application for stay of execution it is for the court to decide whether it should pass the stay order on hearing the judgment-debtor or both judgment-debtor and the decree-holder-It cannot be laid down positively that under no circumstances a stay order should be made without hearing the decree-holder. AKM Shahidur Rahman vs Md Mafizullah Master 38 DLR279.
Order XL rule 5 – It is not an inflexible. rule that the appellate Court when moved against an order passed by the trial Court ordering delivery of possession to the decree-holder cannot pass an order staying delivery of possession without hearing the decree holder-the matter being one which rests with the appellate Court having regards to the circumstances of a case.
The Election Tribunal (Munsif of the UpaZila) in the case declared that the election of the Chairman of the Union Parishad to be void and fresh election to be held. AKM Shahidur Rahman vs Md Mafizullah Master 38 DLR 279.
Order XL rule 5-Mere filing of an appeal is not sufficient to warrant stay of execution of a decree. Stay is a matter of discretion of the Court.
In view of the hardship to which the appellant might be put in case the entire decretal amount is to be paid by him at once, half the decretal amount should be paid whereupon the execution proceeding may be stayed. Out of the decretal amount Taka one lac is to be paid within two months and the respondent is to furnish security for refund of the amount. Anwar Hossain Bhuiyan vs Shaikh Moslem Ali 42 DLR (AD) 158.
Order XL rule 5-The opposite party (the returned candidate) moved the Election Appellate Tribunal who stayed the operation of the judgment till disposal of the appeal.
Held: In the present case the Election Appellate Tribunal did not commit any illegality in passing a final order for stay of execution of the judgment and order appealed from without passing through two stages or without hearing the respondent-petitioner. AKM Shahidur Rahman vs Md Mafizullah Master 38 DLR 279.