CODE OF CIVIL PROCEDURE (V OF 1908)
Section—2, Sub-section (ii), Order I Rule 10 and Order 22 Rule 4 (A)
Order 22 Rule 4 (1) speaks about ‘legal representative as defined in subsection (11) of Section 2 C.P.C. A transferee of a property sold by a person is not his legal representative and as such he does not fall within the category of ‘legal representative’ as contemplated by sub-section (11) of Section 2 of the Code.
Sub-rule (2) of Rule 10 of Order I C.P.C. empowers a Court at any stage of the proceeding to add in it any person whose presence before the Court may be considered necessary in order to enable it effectively and completely to adjudicate upon and settle all questions involved in the case. Although opposite party Nos 3 and 4 are not legal representatives of their vendor Balai Ch. Basak, still then they are necessary parties as being purchasers from Balai.
Md. Abu Tayeb Mia Vs. Nakul Chandra Basak and others, 14 BLD (HCD) 306.
Ref: Master Abdul Aziz Vs. Abani Mohan Mukherjee and another, 30 DLR(SC) 221; Syed Au Bhuyan Vs. Md. Jamshed Ali Kazi and another, PLD. 1957 (Dac.): Union of India Vs. Ram Chandra, AIR 964(SC)215; Sisor Kumar Tarafdar Vs. Manindra Kumar Biswas and another, 1958 Cal. 681 and National Bank of Pakistan Vs. Syed Muzammêl Hussain, P.L.D. 1965 Kar. 633—Cited.
Form of Decree in a suit for Specific Performance of Contract—The trial Court decreed the suit and directed the principal defendants and the subsequent transferees to execute and register the sale deed in favour of the plaintiffs. This decision was upheld in appeal. The High Court Division summarily rejected the petitioners’ application u/s 115 of C.P.C.
The petitioners’ main contention is that the Courts below were wrong in directing the subsequent purchasers to execute the kabala in favour of the plaintiff, although they were not parties to the contract.
The Appellate Division considered different aspects of the question and the trend of decisions of the superior Courts of the subcontinent and took the view that a direction for reconveyance to the plaintiffs by the subsequent purchasers alone could be a possible solution and that would have the effect of vesting title to the property in the plaintiffs but it would be inequitable to compel the subsequent transferees to enter into terms and convenantsin the vendors’ agreement to the plaintiffs to which they would never have agreed had they been free agents. Moreover, if the original contract is varied b altering or omitting by terms of the contract the Court will be remaking the contract, a thing it has no power to do, because in that case it will no longer be specifically enforcing the original contract but a different one. The Appellate Division held that the proper form of decree in such a case will be to direct specific performance of the contract between the vendor and the plaintiff and, to direct the subsequent transferee to join in the conveyance so as to pass on title, which resides in him, to the plaintiff.
Ezaher Meah and others Vs Mst. Shaher Banu and others, 17 BLD (AD) 80.
Decree passed is not in terms of U.S. Dollars but in terms of Taka and the deposit must also be in terms of the decree, that is, in Taka. If the appellant had the intention to deposit it could have encashed the Dollars and then deposit the amount with the trial Court. So, deposit of the U.S. Dollars is not in accordance with the provision of the Artha Rin Adalat Ain.
Habib Bank Limited Vs UAE Bangladesh International Company Limited and another, 18 BLD (HCD) 422.
Ref: 1981 BLD(AD)95—Cited.
Decree—Jurisdiction of the Execution Court
It is now well-settled that a decree for specific performance of a contract to sell the suit property is incidental to the document of sale and as such the executing Court has the jurisdiction to execute the decree by giving possession to the decree holder, although the decree is silent about delivery of possession.
Md. Kafiluddin Vs Md. Sukur Ali Mia, 17 BLD (HCD) 147.
Judgment and Order
Judgment’ mean the statement given by the Judge of the grounds of a decree or order. Order’ means the formal expression of any decision of a civil court which is not a decree.
Sirajul Islam Chowdhury Trawlers Ltd. Vs Sirajul Islam Chowdhury, 20 BLD (HCD) 347.
Exclusion of jurisdiction of a Civil Court should not be readily inferred. The civil Court has jurisdiction to try all suits of Civil nature excepting suits of which their cognizance has either expressly or impliedly been barred by law.
The power of granting injunction by any Court in respect of any order passed or action taken or to be taken in pursuance of the power under the said Ordinance has been expressly taken away.
Sulaiman Bibi and others Vs. Administrator, Farazikandi Complex and others, 13 BLD (HCD) 451.
Ref: Ali Jan Khan and others Vs. Bangladesh and others, 37 DLR(AD) 161; Abdul Rauf and others Vs. Abdul Hamid Khan and others, 17 DLR(SC) 515; Secretary of State Vs. Mask & Co. 67 IA. 222= AIR 1940 PC 105-Cited.
Courts to try all civil suits
Abandoned Buildings (Supplementary Provisions) Ordinance, 1985 Section—7
The petitioner’s title suit for declarations that the disputed property was not an abandoned property and he has right, title and interest thereto on the basis of registered deed of agreement and a general power of attorney having been dismissed on contest, the said decision of the civil Court with regard to the nature of the property and the plaintiffs claim thereto are not only binding upon the present petitioner but also upon the Court of Settlement consequently the court of Settlement acted without any lawful authority in declaring the property in question as not an abandoned property and issuing a direction for restoration of possession to the petitioner.
Mohammad Moinuddin Vs. Bangladesh 16 BLD (AD) 165.
Jurisdiction of Civil Courts
Order VII Rule 11 – Rejection of Plaint
Generally speaking the civil Court can try all suits which involve the determination of any civil right except those whose cognizance is “either expressly or impliedly barred”. Exclusion of jurisdiction of civil Courts is not to be readily inferred unless the suit is expressly barred by any statutory provision. Even if jurisdiction is so excluded, still then the civil Courts have jurisdiction to examine as to whether the provisions of an Act have been duly complied with or to examine as to whether a statutory tribunal has acted in conformity with the fundamental principles of judicial procedure.
Md. Shahidullah Vs. Abdus Sobhan Talukder 16 BLD (HCD) 423.
In filing a suit under section 9, a plaintiff must have locus standi as well as legal right in order to claim a relief against a defendant. A plaintiff cannot file a suit on behalf of a company without any specific tangible interest in the said company. Even as shareholder, he has no right in the assets of the company.
Shafi A. Choudhury v. Pubali Bank Ltd. and others, 22 BLD (HCD) 423.
It is well-settled that the proceeding of any special court cannot be stayed on the ground of filing a suit under the general law even that is for the self-same matter and between the same parties. On the contrary suit filed under the general law may be stayed in appropriate circumstances.
Iftekhar Afzal Vs Pubali Bank Ltd. and others, 18 BLD (HCD) 642.
Ref: 14 BLD(AD)196; 18 BLD 291; 14 BLD (HCD)457; AIR 1977(SC) 1222. A.B. Sarin Vs. B.C. Patel, AIR. 1951 Born 423;–Cited.
Stay of a subsequent suit
Section 10 of the Code provides that when two suits are pending between the same parties or between parties under whom they or any of them claim litigating and the matters in issue are directly and substantially the same, the latter suit shall remain stayed till the disposal of the earlier suit.
In the instant case, there are not two suits but one suit and the other a miscellaneous case under Order 9 Rule 13 C.P.C. The learned Assistant Judge was thus evidently wrong in staying the earlier instituted suit for the sake of a subsequently instituted miscellaneous case.
Chairman, Santosh Islami University Vs. Nil Mahmud and others, 15 BLD (HCD) 542.
Stay of subsequent suits
A miscellaneous case under Order IX Rule 9 of the Code of Civil Procedure is not a continuation of the suit for the pendency of which further proceedings of an execution case can be stayed.
Md. Nurul Islam and others Vs Md. Maniruddin Bepari and others, 16 BLD (HCD) 254.
It is a settled law that under the provision of section 10 of the Code of Civil Procedure the later suit shall be stayed if it is between the same parties and the matters in issue are substantially the same. But where common questions of disputed title are involved in the two suits it is desirable that the suits be tried simultaneously, although the parties to the suit are not the same. This is necessary for avoiding conflicting decisions and multiplicity of litigations causing harassment to the parties.
Fazlur Rahman Vs Kazi Humayun Kabir and others, 17 BLD (HCD) 188.
Ref: 40 DLR 56;—Cited.
Section—11, Res judicata
Order VII Rule 11(d)—Rejection of Plaint
Question of res judicata cannot be decided from a reading of the plaint and should be decided at the time of trial.
Md. Mahbubul Haque Vs Md. A. Kader Munshi, 20 BLD (AD) 82.
Ref: Sreemati Pushpa Rani Das Vs. A.K.M. Habibur Rahman, 13BLD(AD)217— relied.
It provides that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and sub stantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title and the Court has finally decided the matter.
The petitioner filed a title suit in respect of the house in question for a declaration that it is not an abandoned property and he has title thereto. The suit was dismissed on contest. The petitioners appeal against the dismissal of the suit was also unsuccessful. Thus the decisions of the civil Courts with regard to the nature of the property and the plaintiff s claim thereto became binding upon the petitioner. The High Court Division correctly held that the decisions of the Civil Courts between the Government and the present petitioner being binding upon them, the Court of Settlement acted illegally and without jurisdiction in declaring that the property in question is not an abandoned property and ordering restoration of possession.
Mohammad Moinuddin Vs The People’s Republic of Bangladesh and another, 16 BLD (AD) 122.
Section—11: Res judicata
When the causes of action of the two suits are different and the subject-matter of the two suits is also completely different, the decision in one suit cannot be considered as res judicata in the other suit. In such a case, the principle of res judicata is not applicable.
Md. Rajiuddin Chowdhury Vs Suruj Ali, 16 BLD (HCD) 96.
Section—11: Res Judicata
To bring a case within the ambit of Section 11 of the Code of Civil procedure the issues in the former suit and the subsequent suit shall be the same, the suits should be between the same parties, the subject-matter should be the same and the former suit must be disposed of finally.
Section—11: Res judicata
The main object of the principle of resjudicata is to prevent multiplicity of suits and interminable disputes between the litigants. This principle aims at preventing not only a new decision hut also a new investigation so that the same person cannot be vexed again and again in multiple proceedings over the same question. This principle is mutual in character and it is open as such to the plaintiff as to the defendant.
Md. Mannaf Hossain Vs Bangladesh Agricultural Development Corporation, 17 BLD (HCD) 336.
Ref: Bangladesh Agricultural Development Corporation Vs. Md. Mannaf Khan and ors, 36 DLR(AD) 69-Cited.
Ordinarily, a plaint should not be rejected on the ground of res judicata unless it is so palpably clear and obvious from a reading of the plaint and no further evidence is required.
Shafi A. Choudhury v. Pubali Bank Ltd. and others, 22 BLD (HCD) 423.
The reliefs sought for in a suit for permanent injunction and in a suit for partition are quite different and distinct from each other and as such the result in the suit for permanent injunction does not operate as res- judicata in a subsequent suit for partition wherein the question of title of the respective parties and their shares are ascertained and declared.
Rabija Khatun and others Vs. Badsha Meah and others, 15 BLD (HCD) 325.
The parties and the subject matter in both the suits are the same and the matter in issue as to the loss sustained by the plaintiff due to the reasons stated in the written statement of the earlier suit and plaint of the subsequent suit are materially and substantially the same and these issues were raised in the earlier suit and by necessary implication was rejected in the earlier suit and that decree of the trial Court has already been affirmed by this Court and as such the suit is hit by res-judicata.
Manager, Bangladesh Krishi Bank and others Vs Al-Haj Md. Nurul Islam and another, 20 BLD (HCD) 179.
Doctrine of Res Judicata
Doctrine of res judicata is a special form of estoppel. It gives effect to the law that the parties to a judicial decision should not after- words by allowed to relitigate the same question even though the decision may be wrong. If it is wrong it must be challenged by way of an appeal or other procedure. The whole doctrine of res judicata is based on consideration of judicial policy.
Sirajul Islam Chowdhury Trawlers Ltd. Vs Sirajul Islam Chowdhury, 20 BLD (HCD) 347.
Ref: Carl-Zeiss—Stiftung Vs. Rayher Kecler Ltd. (No. 2), 1966 2All E.R. 536(572):1967 AC 853(946)—relied.
Sections—12,13, and 44(A)
Sections 12, 13 and 44(A) of the Code of. Civil Procedure do not apply to foreign award in Bangladesh. In India, the foreign awards are enforced by following a separate procedure provided under the Foreign Award Recognition and Enforcement Act, 1961. There is thus no difficult in India in enforcement of a foreign award. [Per Latifur Rahman, J.]
Bangladesh Air Service (Pv.) ltd. Vs. British Airways PLC. 17 BLD (AD) 249.
Ref: 22 DLR(SC)334; Halsbury’s Laws of England, 4th Edn., Vol. 8, Para 583, Page 407; Vol. 2, Paras 543 and546 at PP-270 and 280 respectively, Halsbury’s Laws of England, 3 Edn., Vol. 7, Para 137,P.72; Vol.2, Para 36, P.14; Priavate International Law by Cheshire and North,1 1th Edn., PP.457-461; The Conflict of Laws by Morris, 4th Edn. (1993), PP.131-136; Law of Arbitration and Conciliation b’ 5K. Roy Chowdhury and H.K. Saharay, 4th Edn., P.14 and P.27; Private International Law by Paras Diwan PP.506- 520 and Cheshire’s Private International Law. 1 11h Edn. P-457. Tzortzis Vs. Monark Line A/B, (1968) 1 WLR 406, SA(1970) 3 All ER71(HL); (1970) IAII ER796(HL); AIR 1987(SC)674: (1990) 3SCC481; AIR 1989 (SC)1239; AIR 1994(SC)860; 30 DLR94; 32 DLR(AD) 107; AIR 1963(SC)1044; A.l.R. 1964(Cal) 141; (1938) A.C. 224 (240); (1993) 1All ER 664(682); (1968) 1 W.L.R. (406)(409); AIR 1987 (SC)674; (1970) IAII ER 96;Black’s Law Dictionary, (Abridged5th Edn.) Biswas on Encyclopedic Law Dictionary, 2 End., A1R1958 (All) 374; A1R374; A1R1961 (SC)1152; Prem’s Judicial Dictionary, Vol. (iv); AIR 1963(SC) 1044; 22 DLR(SC)334; Halsbury’s Laws of England,4th Edn., Vol. 2, Para 501,P. 255; AIR 1959(SC) 781(795); 27DLR583; A1R1959(SC) 1357; 14 DLR (SC)151; A1R1954 (Allahabad) 393 PLD1952 (Lahore) 149—Cited.
The Jurisdictional defect, either pecuniary or territorial or in respect of the subject-matter of the action, strikes at the very authority of the Court to act. A Decree passed by a Court which has no Jurisdiction to try the suit is a nullity the question of validity of the decree can be raised at any stage whenever, it is sought to be enforced.
Section 115 and 99 and Section 11 of the Suits Valuation Act, 1887
The jurisdictional defect in the impugned Judgment and Decree is not itself a ground for interference in revision unless it has resulted in an error in the decision occasioning a failure of justice.
Abul Kashem Md. Lutfullah Vs. Saiful Islam (Dumb) & Ors, 13 BLD (HCD) 648.
Court in which suits to be instituted
In view of the provision of section’s of the Code providing that every suit shall have to be instituted in the competent Court of the lowest grade, the High Court Division refused to entertain the suit and returned the plaint to the filing Advocate for presenting the same before the District Court.
Ansarul Hoque Vs. Agrani Bank, 18 BLD (HCD) 138.
The word Order’ used in Section 17 of the Ordinance does not include an interlocutory order which is passed by way of an aid to final adjudication of any dispute or claim. No appeal, therefore, lies before the District Judge under Section 17 of the Ordinance against an interlcutory order passed by the Family Court.
Md. Younus Miah Vs. Abida Sultana @ Chhanda, 14 BLD (HCD) 291.
Section—20 Clause (C)
If no part of the cause of action accrues at the place of the Branch Office of a company or corporation, the mere fact that the company /corporation has a Branch Office at the place will not give the Court jurisdiction to act. Law requires that a suit shall have to be instituted in a Court within the local limits of whose jurisdiction the cause of action arose.
Khondoker Mahtabuddin Ahmed, Managing Director Vs. M/s Matin Tea and Trading Company, 14 BLD (AD) 58.
Ref: 1981 B.C.R.(HCD) 364;1960 PLD (SC) 202 ;A.I.R. 1948 Lahore 56
Section—20 Explanation 11
A plaintiff can sue a Corporation either at the place of its sole or principal office or at any place where it has a subordinate office. But in the latter case it must be found by the court that the Corporation can conveniently put up its defence through its subordinate office. Of course, it is not necessary that a subordinate office should be a miniature of the head office, but nevertheless it must be such as the defendant can conveniently and effectively contest the suit through its subordinate office.
M/s. Anwar and Brothers Vs. Bangladesh Shipping Corporation, 15 BLD (HCD) 447.
Ref: 12 DLR (SC)47; 1981 SCMR 494- Cited.
In deciding a question in respect of an order of transfer of a case on the sole ground of an analogous trial with another case, it needs to be seen whether the facts and nature of the cases are conducive for such transfer on the sole ground of an analogous trial of both the cases.
Tambia Khatun Sowdagar, Vs. Abdur Rouf 13 BLD (HCD) 248.
Ref; Haji Abdus Sattar Vs. Mahiuddin and others, 38 DLR(AD)97; Abdul Jahar Vs. Abdul Kader and others 36 DLR3O6; DronavajjulaVidyamba Vs.Vallabhajo sulla Lakshmi Venakyamma, A.I.R. 1958 (Andra Prodesh) P.218—Cited.
Sections—24 and 115
Bangladesh Legal Practitioners and Bar Council Order and Rules, 1972
The Bar Council Tribunal is an internal Tribunal of the lawyers constituted under Article 33(1) of the Bar Council Order and it is vested with certain powers as are vested in a Court under the Code of Civil Procedure in respect of certain specified matters but from this it cannot be said that the Tribunal is a Court like other Courts. As the Tribunal or the Chairman of the Bar Council is not a Court subordinate to the High Court Division, this Court cannot entertain any petition exercising its jurisdiction under Section 115 C.P.C. for transferring a case from one Tribunal to another.
Md. Alim Hossain, Advocate Vs. The Chairman, Bangladesh Bar Council, Dhaka and another, 14 BLD (HCD) 329.
Power of transfer and withdrawal
The High Court Division commits an error of law in withdrawing a suit to itself from the trial Court without assigning any reason, without following the requirements of law for such withdrawal and without affording proper opportunity to the appellants’ Advocate to place his case before the Court.
Government of Bangladesh and another Vs Md. Razor Rahman Chowdhury, 17 BLD (AD) 173.
Artha Rin Adalat Act 1990 (IV of 1990)
Civil Courts Act 1887 (XII of 1887)
A case pending in the Artha Rin Adalat cannot be heard analogously with a case pending in any Court created by the Civil Courts Act. A suit under general law cannot be tagged and heard analogously with a suit under a special law.
Ripon Packaging and Accessories ltd. v. Eastern Bank Ltd. and another, 22 BLD (HCD) 127.
Ref: Bangladesh Shilpa Bank v. Bangladesh Hotels Ltd. 38DLR(AD)70; Ahmed Silk Mills Ltd. V. Bangladesh Shilpa Bank 42 DLR 140; Iftekhar Afzal v. Pubali Bank Ltd. 6 BLT (HCD)166.
Section—24, Order XLVII Rule I
Section 24 C. P.C. provides that where an application for transfer is moved before a Court, it is to hear the application after issuance of notice on the other side but where. the court suo motu passes an order under this section no such notice is required. In the instant case the transfer of the case without hearing the other side is contrary to the provision of section 24 C.P.C. and it amounts to “some mistake apparent on the face of the record– and is covered by the expression for any other sufficient reason” employed in Rule I of Order 47 C. P. C.
Mathura Mohan Pandit being dead his heir Sudhir Chandra Das Vs. Most Hazera Khatun, 14 BLD (HCD) 547.
There cannot be any assumption that a District Judge who is a party to a suit will receive automatic support and sympathy of his peers while trying a suit to which he is a party. To give way to such assumptions will be a ruinous invitation to a floodgate which should not be opened. The High Court Division rightly did not encourage a transfer on a mere unfounded apprehension.
Mosammat Shahida Khatun Vs Abdul Malek Howlader and ors. 18 BLD (AD) 217.
As the transferee Court has not informed the defendants about the transfer of the suit the defendants did not get the opportunity to defend their cause, the suit is sent back on remand to the trial Court for disposal after notifying the parties.
Abdul Khaleque Vs Abdul Barek Howlader and others, 17 BLD (HCD) 268.
Section—30, Order VI Rule 17
Under section 30 of the Code the Court has power to order discovery and the like that may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and fats, and the discovery, inspection, production, impounding and return of the documents or other material objects producible as evidence etc. In the instant case the learned trial Court committed a gross error of law in applying the same in an application under Order VI Rule 17 of the Code of Civil Procedure for amendment of the plaint. Now, the settled law is that a plaint can be amended at any stage of the suit or appeal when it does not change the nature and character of the suit.
Abul Kalam Bepari Vs Faziul Huq Fakir, 18 BLD (HCD) 442.
The implied power of an arbitrator which may be exercised by him in his discretion is on the analogy of the Courts power under Section 34 C.P.C. In the absence of any law or agreement providing for payment of interest by an arbitrator on his award, his power does not extend to pre-reference period.
The Bangladesh Agricultural Development Corporation (BADC), represented by its Secretary Vs. M/S. Kibria and Associates Ltd., represented by its Managing Director Syed Golam Kibria, 14 BLD (AD) 99.
Ref: 1950(2) All E.R. 618; (1780)99 E.R. 242; (1826) 130 E.R. 549; (1829) 109 E.R. 140; (1893) A.C. 429; (1949) (2) All. E.R. 62; (1981) 2. All E.R. 672; AIR. 1938 (PC) 70; 17 D.I.R. (SC) 404; A.I.R. 1988 (SC) 1520; AIR. 1993 (SC) 864; A.I.R. 1993 (SC) 2464; A.I.R. 1993(SC) 2521; 44DLR (AD) 296; 1983 BLD(AD) 109; A.I.R. 1923 (PC) 66; 1981 A.C. 31; A.I.R. 1992 (SC) 732- Cited.
Sections—34 and 35
Interest and Costs
A plaintiff does not have any statutory right for automatically getting interest on the principal amount under section 34 or to get costs of the suit and appeal under section 35 of the Code of Civil Procedure. In such matters the discretion lies with the Court. When the court is silent about these, it shall be deemed to have been refused and no separate suit shall lie therefore.
Janata Bank Vs. M/s. Wahid Enterprise (Pvt) Ltd., 18 BLD (AD) 51.
It provides that in a money decree the court may award interest to be paid on the principal sum adjudged pendente lite, in addition to any interest for any period prior to the institution of the suit, with further interest from the date of the decree till realisation. Sub-section 2 provides that where such a decree is silent with respect to the payment of interest or further interest, it shall be presumed that the court has refused such interest.
Kadam Rosul Silicate Works and others Vs. Sonali Bank, 14 BLD (AD) 239.
Barring execution in certain cases
Limitation Act, 1908 (IX of 1908)
Article—182(2) of the First Schedule
Both Section 48 C.P.C. and Article 182(2) of the First Schedule to the Limitation Act provide the period of limitation for the execution of a decree. The Civil Procedure Code fixes the longest period whereas the Limitation Act fixes the earliest period for taking the first step towards execution of a decree. The subsequent steps are known as step in-aid. An application for execution has therefore to satisfy first the requirement of Article 182 of the Limitation Act, being the earliest period prescribed, and then also section 48 C.P.C. which prescribes the maximum period of limitation extending to 12 years. If the execution case is hit by any of the two provisions noted above, it must fail necessarily.
Assistant Custodian, Enemy Property (Vested and Non-Resident) (JAB) and A.D.C.,(Revenue), Pabna Vs Md. Abdul Halim Mia, 16 BLD (AD) 73.
Ref: Bangladesh Jatiya Smabaya Bank Lt. Vs. The Sangbad, Daily Paper and others, BCR 1983 (AD) 418; Md. Abdur Rahim and others Vs. Sree Sree Gredhari jeo, 27 DLR (Dhaka) 72; Pingle Venkata Rama Reddy Vs. Kakaria Buchann and others, A.I.R 1963 Andhra Pradesh (FB) I; Lalji Raja and sons. Vs. Firm Hansraj Nathuram, A.I.R. 1971 (SC) 974;—Cited.
Order XXI rules 37 and 38
The law does not authorise to send one to civil prison on an assumption that the judgment debtor will not be able to satisfy the decree. Payment of money under a decree by arrest and detention in civil prison can only be resorted to after fulfillment of the conditions as provided under the proviso to section 51 of the Code.
Anowar Hossain v. Rupali Bank Ltd. 22 BLD (HCD) 153.
Ref: Sultana Jute Mills Limited and others v. Agrani Bank and others 14 BLD(AD)196; 46 DLR(AD)174; Hosne Ara Begum and another v. Islami Bank Bangladesh Limited 53DLR(AD)9; Islami Bank Bangladesh Limited v. Alhaj Md. Shafiuddin Howlader and another 8BLD(AD) 187.
Pensions Act, 1871 (Act XXIII of 1871), Section—11
Section 11 of the Pension Act, 1871 provides that amounts due on account of pension or allowance in consideration of past service shall not be liable to attachment by any Court.
Md. Moslehuddin Vs. Aziza Begum and others, 14 BLD (HCD) 465.
Public nuisances and sanction of the Attorney General for instituting suit
In case of public nuisance if a member of the public wants to initiate a civil proceeding it is incumbent upon him to obtain sanction under Section 91(1) C.P.C. in the absence of any special damage to him. But if the plaintiff wants to bring an action against the defendant for his unlawful act on his land or building causing a private nuisance, the provision of Section 91(1) of the Code does not apply. In the case of a private nuisance no special damage is required to be proved. it is enough if the plaintiff can prove that by the unlawful user of the land/building by the defendant some annoyance or discomfort has been caused to him.
Wahid Mia alias Abdul Wahid Bhuiyan Vs Dr. Rafiqul Islam and others, 16 BLD (HCD) 255.
Ref: 36 DLR 227; 46 C.W.N. 261; 35 DLR (AD)42: 14 BLD (AD) 242; 1815, 4DeG. & Sm. 315; I.L.R.3 Calzo (F.B.); I.L.R. 27 Cal. 793; 25 C.W.N. 95; I.L.R. 31 (All) 444; LL.R. 33 (All) 287; 23 Mad. L.J. 539; I.L.R. 2 Bom.469; I.L.R. 10 Pat 568; A.I.R. 1963 (Punjab) 104; A.I.R. 1929 (All) 877; A.LR. 1937 (Mad) 21; A.I.R. 1937 (Sind)8; 17DLR (SC) 47— Cited.
This provision is meant for trusts created for public purposes which may be of a charitable or religious nature, and for trust properties governed by the Trust Act. It is not applicable to charitable societies registered under the Societies Registration Act. (Per Mahmudul Amin Choudhury, CJ)
BRAC v. Professor Mozaffar Ahmed and others, 22 BLD (AD) 41.
In a suit for permanent injunction the plaintiff is not required to strictly prove his title in the suit property. The existence of a prima facie title and possession in the suit property is sufficient for the purpose.
Anwar Hossain Vs. Abdul Gafur and others, 14 BLD (HCD) 260.
Proviso to sub-section (2) of section 98 of the Code provides that where the Bench hearing the appeal composed of two judges differ in their opinion on a point of law, they may state the point of law upon which they differ and the appeal then shall be heard upon that point only by one or more of the other Judges of the Court, and such point shall be decided according to the opinion of the majority of such Judges. [Per Kazi Ebadul Hoque, J]
Rajdhani Unnayan Kartipakha Vs. Mohammed Jabed Ali and others, 17 BLD (HCD) 341.
Ref: 16 DLR 77; 11 DLR 103; PLD 1970 (SC) 180:22 DLR (SC) 98; 30 DLR 244: 47 DLR 573; 22 DLR 655; 26 DLRIO; 18 DLR 709; Marghub Siddique Vs. Hamid Ali, 1974 SCMR 519; 6 BLD (AD) 342; 1965(SC)1514; 1971 SCMR 447; AIR 1968 (SC) 1970; — Cited.
Section 99 C.P.C. provides that no decree shall be reversed or substantially varied on account of any misjoinder Of parties or causes of action etc. not affecting the merits of the case or the jurisdiction of the Court. In the absence of any material to prove that the merit of the present case has been affected because of the alleged misjoinder of causes of action, grievance on that score cannot be entertained.
Sharafat Hossain being dead his heirs Md. Shah Jamal and others Vs. Dr. Islamuddin, 14 BLD (AD) 137.
The omission to sign the deposition sheet is a defect or irregularity in the proceedings. But the merits of the Case and the jurisdiction of the Court are not affected by the said omission. Mere non-signing of the deposition sheets does not amount to an illegality. Section 99 of the Code is intended to prevent technicalities from overcoming the ends of justice.
Md. Meser Ali Vs. Md. Khaybar Ali, 18 BLD (HCD) 92.
Ref: AIR 1979 (Delhi) 22; AIR 1951 (Patna) 293; AIR 1954 (SC) 340—Cited.
Section 100 of the Code of Civil Procedure does not authorise the High Court Division to disturb the finding of fact of the Court of appeal below, the final Court of fact arrived at on appreciation of the evidence even though the High Court Division does not agree with the finding arrived at by the Court of appeal below on consideration of the evidence on record.
Hriday Ranjan Dey and another v. Niranjan Dey being dead his heirs Probate Day and others, 21 BLD (AD)147.
Ref: Akrab Ali and others Vs. Zahiruddin Kari and others, 3ODLR(SC)81; Mir Laik Ali Vs. Standard Vacuum Oil Company (ESSO) and Abdur Razzak 16DLR(SC)287; Madan Gopal & ors. Vs. .Maran Bepari & ors 21DLR (SC)448.
Second Appeal—Finding of facts—A finding of fact without proper consideration of the evidence on record and which is not based on sound reasoning is no finding in the eye of law. Such a finding is not immune from attack in second appeal. A proper finding of reversal must conform to the evidence.
Misreading and non-consideration of the material evidence on record and erroneous assumption of facts render the judgment untenable in law.
Lalu Uddin Vs. Hemayet Hossain and others, 15 BLD (HCD) 42.
In a second appeal findings of fact arrived by the first appellate Court cannot be reversed by the High Court Division unless those are vitiated by misreading of the material evidence affecting the impugned decision. In the instant case, registered patta exhibit-i and rent receipts exhibit-2 series having not been considered by the Court below and its findings being vitiated by misreading of the material evidence clearly empowered the High Court Division to reverse the findings arrived at by the Courts of fact.
Golam Moula Vs. Gourpada Das, 17 BLD (AD) 310.
Section—114, Order 47 Rule 1(1)
Review—the power of review as visualized in section 114 C.P.C. is to be traced to Order 47 Rule 1(1) of the Code, which contains the prescribed conditions and limitations set by law, A review is never permissible unless the case falls within the purview of the powers contained in Order 47 Rule 1(i) C.P.C. A review is never contemplated to be a re-hearing of a case for re-opening a closed chapter. It is available only under certain well-defined circumstances, namely, where some important evidence has been discovered, which could not, inspite of due diligence, have been known to the party to be produced at the time of hearing or the Court has overlooked some important question of fact and law, which would have a direct bearing on the decision of the case, or there is otherwise some apparent mistake. or error on the face of the record. The ground that the Court has fallen into an error in deciding an important question or that an important ground was not urged at the original hearing, cannot be the ground for review. The finality or sanctity that attaches to a judgment or order passed by a competent Court on hearing the contending parties cannot be lightly interfered with in review.
Sree Parimal Chandra and others Vs Mst. Shaheda Begum and others, 20 BLD (HCD) 55.