Section 2(2) read with
Non-Agricultural Tenancy Act, 1949
A referent to Section 2(2) of the Code of’ Civil Procedure shows that a decree may be either preliminary or final.. Explanation to Section 2(2) provides that “a decree is preliminary when further proceedings have to be taken before the suit can be dispose of. It is final when such adjudication completely disposes of the suit.” In a suit for partition, after tiling of the report along with the case map, field book, saham list by the Advocate Commissioner final decree takes effect and thereafter remains nothing to be done. In a pre-emption proceeding under Section 96 of the State Acquisition and Tenancy Act. the question of co-shareship in the tenancy is relevant, but in Section 24( 1) of Non-Agricultural Tenancy Act the co-shareship in the land is material. In that view of the matter, the passing of the final decree in a partition suit finally determines the right of the co-sharers in the land. Hence, the application for the pre-emptor-respondents on the basis of co-sharership is not maintainable.
Md. Shafiuddin Chowdhury Vs. Md. Abdul Karim & Ors. 9BLT (AD)-220
Section-2(4)(8) read with
Family Court Ordinance, 1985 Section-17(7)
Definition of the District Judge—there is no scope to accommodate the Judge of Nari-O-Shaishu Nirjatan Daman Bishes Adalat as District Judge required under the Family Court Ordinance, 1985.
Kartick Chandra Dey Vs. Manju Rani Dey & Ors.l0BLT (HCD)-476
In the instant case, it appears from the plaint itself that not shares in Albert David (Bangladesh) Ltd.- has yet been transferred in favor of the plaintiff. This fact as mentioned in his own plaint shows that he has got no interest in the said company and cannot file a suit on its behalf without any specific and tangible interest in the said company. 34] Shafi A. Chowdhury Vs. Pubali Bank Ltd. & Ors. 10BLT (HCD)-347
Section-9 read with
Administrative Tribunal Act, 1980
The Civil Court has jurisdiction to declare any legal character of a person and the same is not triable by Administrative Tribunal.
Md. Tomser Ali Sarder Vs. Md. Nazrul Islam & Ors.11BLT (HCD)-35
Plaintiff opposite party being an employee of petitioner Uttara Bank Limited his condition of service are controlled and regulated by Uttara Bank Employees (Service) Regulation. 1981 which came into force on 12.09.1981 and the plaintiff-opposite party was terminated by order issued by defendant no. 4 on 19.09.1981 and Plaintiff-opposite party was terminated when the Service Regulation of 1981 was already in the field and Eastern banking Corporation Ltd. Staff (Service) Rules. 1965 ceased to play any role in controlling, governing and regulating
the service of any employer or officer of Uttara Bank Limited and termination order issued on 19.09.1981 was under a dead (Service) Rules and dead law and that termination order is absolutely a nullity and without jurisdiction. When an order is nullity, ultra vires and without jurisdiction validity of that can be very much challenged under the Ordinary Civil Jurisdiction in an much as the Civil Court or any Tribunal got the authority to see and examine whether action taken or done in any proceeding is a nullity and Quorum Non Judice.
Uttara Bank Limited Vs. Quazi Salaur Rahman & Ors. 11 BLT (HCD)–95
The mutawali of waqf estate instituted the suit for declaration of the waqf estate in the suit land. The issues involved in such suit are whether or not the waqf has not got title in the suit land and whether or not the record of rights in respect of the suit land as prepared and published is correct. The issues are essentially civil in nature. Under Section 9 of the Code all suits of civil nature will lie in civil courts unless the same is specially barred by specific provision of law. It is now well settled by a long line of authorities that jurisdiction of a civil court cannot readily be read to have stood oused.
Kamrul Ahsan & Ors Vs. A. N. M. Ziaudding & Ors.11BLT (HCD)-63
On 22.01.1977 opposite party-plaintiff joined the defendant Bank as typist in Kishoreganj Branch. On 09.05.1981 the plaintiff was put under suspension pending decision of a police case lodged against him by the said branch of the Bank. On 18.11.1982 the plaintiff was dismissed from service under the service rules of the Bank.
Held : I find from the record that after the plaintiff was put under suspension, proceeded with under the Banks Old Service Rules and finally dismissed from service on 18.11.1982 under the Bank’s Service Rule No. 39. His departmental appeal was also dismissed under Rule not 43 on 25.09.1984. All though he was proceeded with under the Service Rules of the Bank. This is permitted under Section-3 of the SO Act, On 18.111982 when he was dismissed for service, the defendant Bank was not brought within the ambit of the AT Act, So the plaintiff had no scope to seek remedy under the AT Act, 1981. Equally, as the plaintiff was not dismissed under any provision of the SO Act. 1965 he had also no right to go to the labour court established under the Industrial Relations Ordinance — the plaintiff opted to sue in a Civil Court and he is quite entitled to proceed with his suit in the Civil Court. 20]
Sonali Bank & Ors. Vs. Md. Jalaluddin & Ors 8 BLT (HCD)-364.
The facts which are not disputed are that deceased Rafiqul Islam insured his life for Taka 200,000.00 with the appellant company and the appellant on receipt of the first premium issued a life policy being Policy No. 000021527 dated 28.12.1996. Respondent No. 1 the wife of the insured was made his nominee in the policy. On 25.03.1997 Rafiqul Islam died whereupon the respondent No. I made the insurance claim to the appellant. On inquiry, the claim was found valid. As the insured amount was not ‘being paid by the appellant the dispute was referred to the Controller of Insurance, respondent No. 3 purportedly under Section 47A of the Insurance Act, 1938. shortly the Act. On 28.01.1998 respondent No. 3 in presence-of representatives of both the appellant and respondent No. I found the claim valid and asked the appellant to pay claim. Pursuant to the order of the respondent No. 3 respondent I started Money Execution No. 06 of 1998 for recovery of the insured amount in the above Court. Thereafter the appellant instituted the above T S No. 30/1999 in the same Court for declaration that the order of respondent No. 3 dated 28.01.1998 vide letter No.cÖt ext bx- 21/53/1971-72 asking the appellant to pay insured amount to the respondent No. 1 is illegal, malafide, void and not binding upon the appellant—we do not have any doubt that in the facts and circumstances of the case, the appellant has no right to sue in a civil Court for the simple reason that an insurer does not have any such right under the law.
Homeland Life Ins. Co. Ltd. Vs. Jahanara Begum & Ors 8 BLT(HCD)-361.
Stay of subsequent suits till disposal of the previously instituted suits.
The expression “matter in issue” appearing in section 10 CPC has reference to the entire subject in controversy between the contending parties and the matters in issue in the two suits shall have to be identical. An applicant for stay of a suit under this section is bound to show that all matters in issue in the suit are directly and substantially in issue in the previously instituted suit. An applicant is not entitled to the benefit of this section where some of the issues are identical but others are different.
Abdul Jabbar Vs. Sultan Ahmad & On 8 BLT (HCD)-55.
Section-10 read with Sectioin-151
The provision of Section 10 of the Code of Civil Procedure does not apply to the simultaneous hearing of a later and earlier suit, after consolidation of the two. Its intendment is not to take away the inherent power of the court to consolidate suits and hear them simultaneously for the ends of justice.
Most. Shahida Khatun Vs. Abdul Malek Howlader & Ors. 9 BLT (AD)-148.
Principle of constructive res-judicata
It is clear that sale deed dated 09.1 1.1989 was challenged in that Writ petition No. 798 of 1990 but no rule was issued in respect of the said sale deed and as such relief claimed by the writ petitioner-respondents in respect of the said sale deed in that writ petition was not granted by the High Court Division at the initial stage of issuing the rule and as such the relief against the said sale deed shall be deemed to have been refused for the purpose of Section II of the Code of Civil Procedure. So the writ petitioner-respondents cannot seek relief against the said sale deed dated 09.1 1.1989 by filing another Writ Petition No. 4127 of Principle of res-judicata under Section 11 of the Code is applicable in a
writ proceeding as the same is also a civil proceeding. We are. therefore, of the view that relief claimed in writ Petition No. 4127 of 1992 filed by the writ petitioner-respondents against the appellants of both the appeals was barred by the principle of constructive res-judicata for implied refusal of their claim in respect of the self same sale deed dated 09.1 1.1989 in writ Petition No. 798 of 1990.
Govt, of Bangladesh & Ors. Vs Sri Sri Luximi Najardhan Jew Thakur & Ors. 10 BLT (AD)-16.
No objection as to the jurisdiction shall be allowed unless such objection was taken at earliest possible opportunity. But it is by now well settled that consent or waiver cannot give jurisdiction where there is inherent lack or absence of it and in that the order is a nullity.
Supreme Court of Bangladesh Vs. Md. Shafiuddin 10BL T (AD)-50
Mandatory requirement—On a perusal of the impugned order it appears that the court had overlooked the provision of Section 30 of the Code of Civil Procedure. The learned Assistant Judge. Kachua is directed to comply with section 30 of the Code of Civil Procedure and then proceed with the suit.
Md. Abdur Rahim Khondaker Vs. Bachu Mia & Ors. 10BLT (HCD)-245
No party has any right to pray for a decree on any interest as a principal sum.
BWDB Vs. Contractor Manu Barrage 9BLT (HCD)-21
Sectioin-44A Clause-B, Explanation-3
If statutory enactments are clear in meaning, they must be construed according to their meaning even though they are contrary to international Law. We have, therefore, no hesitation in coming to the conclusion that a foreign arbitration award even if such award is enforceable as a decree or judgment of the United Kingdom cannot executed in Bangladesh in view of clause (b), explanation-3 of Section 44A of the Code of Civil Procedure even if Bangladesh is a signatory of the New York Convention 1958 on the recognition and enforcement of foreign arbitral award.”
Aminur Rahman Khan. Vs. Trade Aris Insurance 9 BLT (HCD)-206.
Scction-48 read with Limitation Act, 1908
Under. Section-48 of the code of Civil Procedure fresh application of 12 years from the date of decree sought to be executed has been barred. Under Article 182 of the Limitation Act time for execution of a decree is three years from the date of the decree or order, or the date of final decree or order of the appellate court. In view of the provisions, an execution to be validly proceed with must satisfy that the application last in point of time for execution was not made after the expiration of the period of 12 years and also not beyond three years from the date of decree or order, or appellate decree or order.
Shafiqur Rahman Vs. Bangladesh Jatiya Samabaya Bank 9BLT(HCD)-72
The said provision applies where the plaintiff tries to enforce his secret title as against the certificated purchaser. It has no application when the benamdar himself or his successor does not lay any claim under the sale certificate.
Sananda Barua & Anr. Vs. Pramatosh Barua & Ors.9 BLT (AD)-269.
Section-75 & 77 read with
Letter of request — plaintiff is an Indian national and a resident of Delhi.
The evidence of the plaintiff was not completed, in the past, when the plaintiff deposed and adduced some documents, the defendants does not cross-examine him. So the necessary of further examination of the plaintiff is more pressing for the defendants than for himself — Held: In the facts and circumstances of the case, we are of the view that letter of request to our High Commissioner in Delhi would be the most convenient and effective mode to record the deposition of the plaintiff in Delhi, who will not encounter the difficulties that a commissioner
may face with. Two Advocates’ on behalf of aforesaid defendants may also go to Delhi and the plaintiff will bear the costs of the Advocates for their travel to Delhi by surface, food and accommodation.
Abdul Latif Vs. Jhahanara Begum & Ors. 11 BLT (HCD)-54.
Section-100 of the Code of Civil Procedure does not authorise the High Court Division to disturb the finding the 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 do not agree with the finding arrived at by the Court of appeal below on consideration of the evidence on record.
Hriday Chandra Dey & Anr. Vs. Probat Dey & Ors.110 BLT (AD)-l37.
Section 114 and order 47 C.P.C.
Review—the power of review as visualized in section 114 C.P.C. is to be traced to Order 47(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(1) C.P.C. A review I never contemplated to be re-hearing of a cage 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, in spite 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 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 & Ors. Vs. Most. Shaheda Begum & Ors 8 BLT (HCD)-90.
The revision application under section 115 of the Code is not maintainable against the award of the Arbitrator.
Ali Hossin Vs. Arbitrator 8 BLT (HCD)-70.
Maintainability—On a mere perusal of the order under challenge dated 30.11.1999 it appears that the learned Assistant Judge did not determine and decide the petition for ad interim injunction laid under Section-151 of the Code but merely granted adjournment on allowing the petition presented by the defendant opposite-party and fixed 02.01.2000 for hearing of the injunction matter. It thus, cannot be said that matter was decided by the learned Assistant Judge by a decision and the said order cannot be a at all characterized to be a decision. I am of this considered view that the order under challenge having not a case decide and not a decision, the Civil Revision Petition against the said order is not maintainable.
Sirajul Islam Chowdhury Trawlers Ltd. Vs. Sirajul Islam Chowdhury 8BLT(HCD)-136
The power to be exercised under section 115 of the Code of Civil Procedure is supervisory which may be also exercised suo motu. The High Court Division is clothed with supplementary power and superintendence and control over the judgment and Orders and action over the Courts subordinate to the High Court Division and the power of Revision is intended to be exercised with a view to sub-serve not to defeat the ends of justice.
Abu Mohammad Yousuf & Ors. Vs. Mrs. Basirannessa & Ors 8 BLT(HCD)-307.
In exercising revisional jurisdiction under Section-115 of the Code of Civil Procedure this Court can interfere with the finding of fact only when it can be shown that the finding is based on cross misreading of evidence or it has been founded on a misconception or misapplication of law or misinterpretation of any material document or otherwise it is perverse being contrary to law and evidence brought on record-—it is also to be borne in mind that mere erroneous decision is not a ground for interference in the exercise of revisional power under section 115
of the Code. Interference may be called for if the judgment appears to have suffered from a patent illegality, legal infirmity and flagrant error of law occasioning a failure of justice.
Mrs. Razia Kader Vs. Mrs. Nurun Nahar Begum 8BLT(HCD)-343
The factual aspect of the case and the evidence adduced are all in favour of the defence. There was no proper appreciation of the case in the light of the evidence adduced by the trial court as well as by the appellate court. The learned single Judge of the High Court Division has not therefore exceeded his jurisdiction in interfering with the matter and come to his finding on appreciation of the evidence and the facts and circumstances of the case. It is well settled that the High Court Division may interfere in a case where there is total non-consideration or
misreading of the evidence on record and the finding arrived is contrary to evidence. Here I find that the finding arrived at by the trial court as well as by the appellate Court was based on total non-consideration and misreading of the evidence on record and as such perverse. The trial court as well as the appellate court shirked their responsibilities in properly and legally evaluating the evidence and fact, and circumstances of the case while disposing the matter in question.
Asmat Ali Vs. Abdur Rafique Mridha &Ors. 9BLT (AD)-12
When there is contest over the insertion of certain recitals in the questioned document and when defendant no. I was specific in his evidence the plaintiff ought to have produced more materials in support of his case. The test as aforesaid to find out the real intent could not be proved by the plaintiff. In view of the clear defence evidence and inadequate and contradictory evidence led from the side of the plaintiff it cannot be found that the questioned transaction is an usufructuary mortgage. Here the question is of non-consideration and misreading of material evidence—High Court Division may interfere in a case where there is total non-consideration or misreading of the evidence on record and the finding arrived is contrary to evidence
Asmat Ali Vs. Abdur Rafique Mridha &Ors. 9BLT (AD)-77
Section-115(1) and Section-151
Section-1 15(1) of the Code can be invoked only for correcting error of law resulting in an error in the decision occasioning failure of justice. Section I 15 of the Code should not be confused with Section 15 I thereof.
Md. Raziur Rahman Chowdhury Vs. Bangladesh & Ors. 9BLT (AD)-147
Section-115 and 151
High Court has the power to expunge objectionable materials from the judgment and order passed by the Subordinate Court.
Bibhu Ranjan Das Vs. Hakim Ali & Ors 9BLT (HCD)-99
Miscarriage of justice—the trial Court appears to have failed to take into consideration of the cause of action as averred by the plaintiff in her plaint. It also did not consider the entire evidence on record on issue of possession and dispossession. It noticed some of the evidence but failed to comprehend the legal effect of those evidence. It also failed to give ally decision on the date of dispossession and how dispossession took place. It failed to raise, and decide on, the important issue to raise, and decide on, the important issue of limitation and also nature of the possession of the plaintiff. In the absence of clear findings that the plaintiff was in possession and dispossessed by the defendants within six months of the institution of the suit, the trial Court fell in serious error of law in decreeing the suit for possession which has resulted in miscarriage of justice. Such decree for possession cannot be sustained in law.
Jebun Nessa Zaman & Ors Vs. Hosneara Lili. 9BLT(HCD)-251
Section-115(1) read with
State Acquisition and Tenancy Act, 1950
Revisional application is not maintainable—Pre-emptor filed an application for addition of parties and the said application was rejected —Held : This Act being special law, the provision of this Act excludes the general law and requirement of this law is to file appeal to the ordinary Civil Appellate Court and as such the revisional application under Section 115(1) of the Code of Civil Procedure does not lie.
Abdul Gani Vs. Bachu miah & Ors. 9BLT (HCD)-256
Maintainability—it is very much well settled principle of law that an Election Tribunal is empowered to pass an order of recounting of ballot papers and as such no illegality has been committed by the learned Assistant Judge in passing the impugned order. As to maintainability of the revisional Application. I am of the view relying on the decision reported in 9 DLR 173 that the Election Tribunal not being a Civil Court is not amenable to the revisional jurisdiction of the High Court Division and as such the revisional application is not maintainable and the Rule is liable to be discharged as not being maintainable.
Md. Abdul Karim Mia Vs. Md. Mohiuddin & Ors. 9 BLT(HCD)-335
Section-115(1) read with
Non-Agricultural Tenancy Act, 1949
The impugned order having been passed under special law and where method of enforcing the right is pointed out by the law must be followed that is in the present case the appeal lies before the Civil Appellate Court having jurisdiction to entertain such appeals and as such the rule is maintainable.
Sumil Baran Dey & Ors. Vs. Gitashri Das Gupta & Ors. 9BLT (HCD)-340
A perusal of the judgment of the High Court Division shows that the learned Judge had discussed the evidence on record threadbare and pointed out that the appellate court left out of consideration important pieces of evidence and palpably misconstrued the evidence that it had considered. The learned Judge also pointed out that the conclusion reached by the appellate court on title and possessions absurd. He was. however, quite mindful of the fact that usually in revisional jurisdiction the Court is not expected to go into evidence but that the instant case is an exception to the rule. The appellate court having absolutely misconstrued the evidence we do not find any tangible fault with the elaborate judgment of the High Court Division. 8]
Sufia Khatoon & Ors. Vs. Madar Mia & Ors 8BLT (AD)-47
It appears that the trial court had approached the case from a wrong premise discussing the defence case first and the appellate court which was the final court of fact had reversed the findings of the trial court after discussing the evidence of both the parties in proper sequence. The appellate court appears to have discussed each witness both for the plaintiff and for the defendants and also the documents in coming to its conclusion that the plaintiff could prove his title and possession but the’ circumstances proved that the registered lease deed dated 3 April 1957 in favour of the defendants was a collusive document since the landlord had not right to lease out the land at that time. Furthermore the defendants failed to prove any farog in confirmation of which the lease deed is said to have been executed. But the learned Judge of the High Court Division did not consider any of the above aspects of the case. Those apart the High Court Division as a revisional court had hardly any jurisdiction to set aside the findings of fact by the appellate court and that also without discussing any fault in the factual finding by the
said court. 12]
Kachi Mia Vs. Suruj Mia &Ors 8BLT(AD)-125
Revisional court found it to be a case of non-consideration of materal evidence on record. D.W. I Abu Taher said in his deposition that the pre-emptor is his cousin sister and she lived in the same village and her husband knew about the same transfer of the case land and requested him to purchase the case land and also told them that they would help the pre-emptor in purchasing the land. D.W. 2A K.M. Golazar Hossain also corroborated the statement of D.W. I that both the pre-emptor and her husband refused to purchase the land. This specific deposition of D.Ws. I and 2 was not at all considered by the last court of fact. So this non-consideration of the vital material evidence affected the merit of the case, the revisional court in the facts of the present case, correctly found that the deposition of D.Ws 1-3 was not at all discussed and considered as has been done by the trial court. Further, the judgment of the lower appellate court is based on certain surmises and conjectures as the lower appellate court that if the pre-emptor and her husband were requested to purchase the land before preemption then probably either the pre-emptor or her husband ought to have been a signatory either in the agreement or in the kabala. This is really an assumption and surmise of the lower appellate court which is not borne out by any evidence on record. There is no scope to guess this probability on the face of positive oral evidence on record. That apart, the pre-emptor and the pre-emptee are relations and live in-the same village—the exercise of revisional jurisdiction by the learned Single Judge was proper and justified in the facts of the case.
Most. Rokeya Begum Vs. Md. Abu Zaher & Ors 8BLT(AD)-134
The suit was found for maintainable by the trial court for want of possession of the plaintiffs in accordance with the proviso to Section 42 of the Specific Relief Act. The appellate court found fault with the finding of possession arrived at by the trial court holding that the reasons of the trial court suffered from discrepancy. Again, the appellate court also found that the Assistant Custodian of Vested Property was necessary for the sake of effective and complete adjudication. The appellate court thus did not give any independent finding on possession or decide the matter of impleading the Assistant Custodian in the suit itself. The said court had sent back the ease on remand for deciding it on all points after fresh trial. Such an order on the facts and in the circumstances of the case has not caused any miscarriage of justice for any patent illegality as such. It was not proper for the High Court Division while exercising revisional jurisdiction to interfere with the order of remand.
Md. Chand Mia Vs. Md. Shamsuddin & Ors 8BLT (AD)-180
The Suit was for declaration of title of the plaintiff on assertion of possession and that C.S. R.S. and S.A Khatians are wrong. Defendant has not disputed the quantum of land in patta Ext. 1 or the suit land as claimed by the plaintiff on the basis of the patta or that land of S.A. Khatian No 31 I did not form part of land of patta Ext. 1 and as such there was no dispute that the suit land was not identical to the land patta. 1 and accordingly, no question of relayment in order to ascertain identity of the land was necessary. Thus the High Court Division erred in law: in holding that in order to ascertain the suit land claimed by the plaintiff relayment is required and as that was not done by the plaintiff, they failed to prove their calim as per pleading.
Nurul Haque & Anr. Vs. Lutfor Rahman & Ors.l1BLT (AD)-173
Section-115 read with
Bengal Tenancy Act, 1885
Presumption of correctness—the plaintiff led evidence of possession and the same has also been supported by D.Ws. Thus the presumption attached to C.S. has been rebutted and as such subsequent recording in R.S. and S.A. are of no legal consequence. The khatian being at best evidence of present possession could not be a document of title so as to confer right, title, and interest of the suit land. 1 he defendant having failed to prove any basis of their title, by any cogent material, the rent receipt Ext I- series are of no avail to them. When evidence was led in rebuttal of the presumption of correctness of entry in the record of right and the appellate court below comes to a finding rebutting the presumption, the said finding being of fact, arrived at by the final court of fact on consideration of the evidence on record, is not liable to be interfered with in revision as there was no error of law resulting in the error in the decision occasioning failure of justice. The Court of appeal below has considered that no question of any partition in the suit is necessary, as the plaintiff has claimed the entire suit land and moreso, the suit the entire suit was for declaration of title.
Nurul Hague & Anr. Vs. Lutfor Rahman & Ors. 10BLT(AD)-173
Ground on surmise—we find absolutely no pleading-opposite party No. 1 in his objection did not raise of any question at all as to the parentage of the minor. In her examination chief, she has testified that the minor son was born out of the wedlock. During cross examination, may be in reply to the suggestion of development of bad relations among the spouses leading to the divorce, she stated that her husband used to torture her over the birth of the son and that her husband doubted over the parentage of the son. In the absence of any pleading and without understanding the disastrous implication or consequence of his reasoning learned Additional District Judge most illegally based his finding upon such statements made in cross-examination as a reason for the deceased Shabahuddin Ahmed Khan for
declaring opposite party No. 1 as the next of kin. This way of reasoning cannot be approved nor the reason, which is wholly bases on surmise.
Secondly, when the learned Additional District Judge himself found that even the appointment of the next of kin would not exempt the requirement of taking a succession certificate for withdrawing the money left by the deceased, how could he on he next breath find the opposite party No. 1 onlv entitled to the estate of the deceased. Learned Subordinate Judge found that the son is the only heir left by the deceased Shahabuddin Ahmed Khan and he will inherit the estate of his father. Without reversing such finding, the learned Additional District Judge fell in serious error to find opposite party No. 1 only beneficiary and entitled to the estate of the deceased. We find no reason to disturb such finding of the learned Subordinate Judge.
Muhaiminual Hassan Khan Vs. Md. Nurul Islam Khan A Ors. 10BLT (HCD)-139
It is fact that the opposite party lady has not preferred the revisional application against the decree for restitution of conjugal rights but it has come to the notice of this court that in spite of the decree passed by the appellate court the petitioner; husband did not make any endeavor to bring back the lady to his domain which shows, the conduct of the petitioner that he is an unbecoming a person and disrespectful towards the mandate of the court and in view of the provisions under Section 115 of the Code of Civil Procedure, this Court is also of the opinion that whenever any error committed by subordinate to High Court Division in which no appeal lies thereto can rectify the error of law and even sou-motu.
Husband Vs. Wife. 10 BLT (HCD)-144.
In exercising Civil Revisional Jurisdiction! under Section 115 of the Code of Civil Procedure can interfere with the decision of an appellate Court which is the last and the final court of fact if is shown that the finding is based on gross misreading of evidence or non consideration of material evidence or it has been founded on misconception or misapplication of law or misinterpretation of any material documents or otherwise it is perverse being contrary to law. evidence and material on record.
Mohammad Siddiqur Rahman Vs. BWDB & Ors. 10BLT(HCD)-408
Section-115(1) read with
Specific Relief Act, 1877
It is the admitted position that defendants No 1-2 in possession of the suit land at the present. There is nothing on record to show that the defendants entered into the suit land lawfully inasmuch as it is not the case that the defendant No. 7 got possession of the suit properties from her father amicably. Finding as to the possession is a finding of fact and finding to fact is not to be interfered with in revisional jurisdiction of his court unless there is any misreading or non-consideration of any materials on record.
Sri Durgesh Chandra Sinha & Ors. Vs. Md. Mozibur Rahman & Ors. 10BLT (HCD)-285
Section-115(1) read with
Waqfs Ordinance, 1962 Section-56(1)
In the instant ease Exbt. ‘Kha’ shows that permission was granted for permanent lease. In view of such clear provision of law and the evidence on record, the court of appeal below fell in serious error of law in holding that the lease for a term exceeding 5 years even with sanction of the Administrator cannot be valid, and such view cannot be sustained in law.
Mohiuddin Fahmi & Anr. Vs. Md. Kolimullah & Ors. 10 BLT (HCD)-288.
It is well settled that once the conditions in section 115(1) of the Code of Civil Procedure are satisfied and the High Court’s jurisdiction is established, the proceedings as a whole from start to finish can be scrutinized and any order necessary for doing justice may be passed. There is no limit to the area in which the revisional power is to be exercised by the High Court Division in the facts and circumstances of the each case.
Md. Shajahan Khan Vs. A.D.C (Rev) & Ors. 11BLT (AD)-60
High Court Division was in error in deciding and reversing the question of fact in respect of possession and Istafa (surrender) which were found in favour of the appellants by the courts below.
Abu Hussain & Ors. Vs. Afezudding Mondal & Ors 11 BLT (AD)-122.
Section 115 (1)
The trial Court after accepting the commissioner’s report having passed the final decree as per provision of sub-rule (3) of Rule 14 of order XXVI of the Code of Civil procedure there was/is no scope to file revisional application.
Abu Bakar Siddique Vs. M. Khorshed Alam & Ors. 11 BLT(HCD)-508.
Though the judgments passed by the courts below suffer from irregularity but the courts below committed no illegality of error of law resulting in an error in the decision occasioning failure of justice in arriving at a final decision and as such no interference is called for by this court upon the impugned judgment and decree.
Md. Sadek Udding Chowdhury & Ors. Vs. Md. Anowarul Haque Chowdhurv & Anr. 11BLT (HCD)-72
Section-115 read with
State Acquisition and Tenancy Act, 1950
Section-95 and 95A
The plaintiff attested the Kabala of defendant No. I. exhibit A(2). The plaintiff explained in his deposition that he put his signature on the request of the defendant and that he thought that the deed was in respect of other land. He also stated that they live as neighbours—by attestation to deed exhibit A(2), the plaintiff cannot be held to have knowledge of the contents of the deed, exhibit A (2) in order to be estopped under Section-115 of the Evidence Act for claiming restoration of the suit and under Section 95 and 95A of the State Acquisition and Tenancy Act. 1950.
Mrs. Wahida Begum & Ors. Vs. Tajul Islam & Ors. 8BLT (HCD)-238
Section-115(1) read with
Order-26, rule 14(2)
In effecting partition, the commissioner is always guided by long established principles for partition. If it is found that the commissioner divided the joint property beyond the writ of partition or in violation of any established principles of partition the court can always interfere. But second commission superseding the report cannot be ordered just on the objections. Appellate court is also empowered to scrutinize the report and make such further inquiry as may be necessary. Were the report is unsatisfactory, this division exercising revision jurisdiction
can also exercise the same jurisdiction as vested in the trial Court.
A. Ali Sheikh & Anr. Vs. K. Ali Sheikh & Ors. 11 BLT (HCD)-444
Section – 115(1) read with
Trust Act, 1882
Considering the terms and conditions of the Trust deed itself and upon consideration of the said terms and conditions of the Trust deed the learned Additional District Judge arrived at a definite finding to the effect that the new management committee proposed to the formed by the petitioners has been in direct violation of the terms of the Trust deed itself and that is the reason why the learned Additional District Judge refused the prayer for constituting the proposed committee for the Management of the Trust by his impugned order. — Held; I am
of the opinion that the impugned judgment and order do not call for any interference by this Court particularly view of absence of any materials to show that the findings on the basis where of the impugned order was passed are not based on consideration of the materials on record.
Raj Ballav Paul Vs. Papon Kumar Paul & Anr. 11BLT (HCD)-460
Sections-144 and 151
It is clear that dispossession was done not on the strength of any decree passed by the Civil Court but it was done on the strength of a notice which was found to be illegal and of no legal effect by the High Court Division — the High Court Division it appears though found that Section I44 of the Code is applicable but even if it is found that this provision is not applicable as submitted by the learned Additional Attorney General but when the plaintiffs were dispossessed on the basis of a notice which was found to be illegal by the High Court Division the civil court can exercise its inherent power under Section 151 of the Code in such a case and in the present case this discretionary exercise of power has not run counter to the interest of justice.
Military Estate Officer & Ors. Vs. SK. Mohammad Ali & Ors. 10BLT (AD)-2
Section-148 read with Section-151
Plaintiff filed an application under Order 9 Rule 9 of the Code of Civil Procedure, learned court below allowed the case with direction that the plaintiff petitioner was to pay PL 300.00 as cost by 22.02.1988 in default, the application shall be deemed to have been disallowed. On 22.02.1988 the plaintiff filed an application .praying for one month’s time for depositing said Tk. 300.00 Held : Since the petitioner applied for extension of time on 22.02.1988 which was within the given time, the learned court under facts and circumstances of the case and also under Section 148 read with Section 151 of the Code of Civil procedure could extend the time for deposit of the Cost.
Md. Khoda Baksha Mondal Vs. Baksha Sarder &Ors. 9BLT (HCD)-315
Inherent powers of the Court
Ordinarily the court does not exercise its power under Section 151 whenever a remedy is available to the aggrieved party under any provision of C. P. C But when the disputed order has been obtained by practicing fraud upon the Court or it has been occasioned due to the fault of the Court, it can certainly undo the wrong in exercise of its inherent power.
Procedural laws are devised to advance the cause of justice and not to obstruct it is the name of any technicality.
Md. Refat Ali & Ors. Vs. Govt, of Bangladesh & Ors.9BLT (HCD)-37
The inherent jurisdiction of the court under Section-151 of the Civil Procedure Code can be invoked subject to the rule that if the Code contains specific provisions, which would meet the necessities of the case, such provisions should be followed, instead of invoking the inherent jurisdiction of the court.
Bibhu Ranjan Das Vs. Hakim Ali & Ors. 9BLT (HCD)-99
Power under section-151 of the Code of Civil Procedure is a power inherent in the Court by virtue of its duty to do justice between the parties. The section does not confer new powers on court but only to save inherent power to make orders necessary for the ends of justice. Section 151 of the Code is only a legislative recognition of well known doctrine and principle that every court got inherent power to act ex debito justitae and to do that real justice for the administration of which alone it exists court acts ex debito justitae according to equity justice and good conscience of a cause and in consonance with sound judicial principle and also fundamental laws and judicial procedure.
Rotis Chandra Das Vs. Sudhir Chandra 9BLT (HCD)-141
Recourse to section 151 for rejection of a plaint can be resorted to in exceptional cases where if the suit is allowed to continue, it would amount to an abuse of the process df the court or in cases where the plaint was signed by a person not authorized to sign the same and the plaintiff did not remedy the defect when called upon to do so.
Aminur Rahman Khan Vs. Trade Aris Insurance. 9BLT (HCD)-206
Dismissal of suit for default is illegal where the suiter died before passing of the order of dismissal.
Inherent power — Apart from Section 151 of the Code of Civil Procedure the court possesses an inherent power to rectify its mistake committed inadvertently.
Afitan Nessa & Ors. Vs. Bangladesh & Ors. 9BLT (HCD)-384
Section-151 read with
Limitation Act, 1908
The trial court passed the orders dated 21.07.1993 and 29.07.1993 behind the back of the petitioners and as a result, when the suit was called on for hearing the petitioners could not appears as they were not aware of any of the dates. The courts of appeal below also missed such vital aspect of the case. Secondly, when it is the duty of a court not to pass any order behind the back of a party which would adversely affect such party, and the court is also obliged to correct its own default, if any, by invoking its inherent jurisdiction as was held in the case of Keamat Ali Bhuiyan V Ramizuddin Ahmed. (1991) 43 DLR(AD) 58. both the courts below erred in law in holding that the delay in making application under Order 9 Rule 13 of the code could not be condoned in the absence of an application under Section 5 of the Limitation Act.
Md. Habibur Rahman & Ors. Vs. M. A. Rashid & Ors. 9BLT (HCD)-444
Section-151 read with Order-7 Rule-11
Where a plaint cannot be rejected under Order 7 Rule 11 of Code of Civil Procedure the Court may invoke its inherent jurisdiction and reject the plaint taking recourse to section 151 of the Code of Civil Procedure.
Abdul Jalil & Ors. Vs. Islami Bank Bangladesh Ltd.9BLT (AD)-71
Section-151, 152 & 153
The identity of the premises was not challenged by the defendant appellant at an\ stage of the trial. Further a copy of the tenancy\ agreement was submitted which show that the premises rented out was plot No. 4313 and therefore the mentioning of plot No. 4314 in the schedule of the plain is obviously a typing error. The High Court Division also found that plot no. 4314 in the schedule was a typing error. The amendment sought being of the formal nature it tails within Sections 151, 152 and 153 of the Code of Civil Procedure which the Court can correct. The High Court Division therefore held that such correction of clerical mistake does not amount to amendment of the plaint under Order 6 Rule 17 In the circumstances we do not find any illegality in the judgment and order passed by the High Court Division in allowing the correction in the schedule of the plaint by substituting plot No. 4313 in place of 4314.
Sri Naravan Chandra Pande Vs. Md. Mahbub Ali & Ors. 9BLT (AD)-197.
Whether the Court deferred the date of argument and fixed the case for further hearing.
Held : From the facts as has been narrated it is palpably clear that the case was fixer on several dates and for securing the ends of justice and for proper adjudication of the issue the trial Judge exercised his judicial discretion and deferred the date of argument and ultimately fixed the case for further hearing.
Mrs. Hosne Ara Begum & Anr Vs. Islami Bank Bangladesh Ltd.9BIT (AD)-1
Inherent power of the Court
Section-151 of the Code is not an alternative remedy for appeal or revision but it is the special preserve of the Court to be exercised only under special circumstances for preventing an apparent injustice or an abuse of the process of the Court and for administering even handed justice, for which alone the Court exists. A casual exercise of power under this ‘ section of law on any illusory ground is never contemplated in law. 5]
Md. Israil Vs. Zilla Parished, Rangpur 8BLT(HCD)-163
When a subordinate court invokes its inherent jurisdiction for reasons recorded to grant a chance of hearing to a party for ends of justice by recalling its own order and such order being not in excess of its jurisdiction, this court will be reluctant to interfere with such order.
Md. Osman Ali Vs. Md. Mokbul Hossain & Ors 8BLT(HCD)-106
Instant case admittedly the Decree Holder plaintiff petitioners got a decree, no matter whether ex pare or contested in a suit for ejectment and put the decree into execution in an execution case. The Judgment Debtor-defendant opposite party side on the basis of Miscellaneous Case, No. 15 of 1999 under Order 9 Rule 13 of the Code of Civil Procedure, obtained an order of stay of the proceeding of Title Execution Case. It is the positive assertion of the Decree Holder plaintiffs-petitioners that the Judgment Debtors defendant opposite party side on the strength order of stay started kancha semi pucca structures and also permanent construction on the suit property and by way of an application under Section 151 of the Code of Civil Procedure the Decree Holder plaintiff petitioners prayed before the court for exercising Courts inherent jurisdiction in recording an order of injunction restraining the Judgment Debtors defendant opposite party side from making any kancha, semi pucca or permanent structure and construction. The decree so obtained by the plaintiffs Decree Holders-petitioners stands good so long the same is not set aside in Miscellaneous case laid by the Judgment Debtors defendant-opposite party side. Taking the advantage of an order, of stay of the proceedings of the Title Execution case the Judgment Debtors-defendant opposite party side cannot be allowed to make semi pucca, kancha structure and permanent construction by changing the
nature and character of the suit property causing loss and damage to the Decree-Holder plaintiffs petitioners. In the fitness of the facts and circumstances the learned Assistant Judge was required to record an order of injunction restraining the Judgment Debtors defendant opposite party side from raising structure and making construction kancha, semi pucca or pucca on the suit property. The learned
Assistant Judge, thus appears to have committed a substantial error in not issuing an order of injunction as prayed by the Decree-Holder plaintiffs-petitioners.
Abu Mohammad Yousuf & Ors. Vs. Mrs. Basirannessa & Ors 8BLT(HCD)-307
We found that after dismissal of the suit on default an application under Section-151 of the Code was filed for restoration of the suit on the same day. The trial judge kept the matter for hearing on 09.03.1996 and restored the suit to its file and number. The trial Court in its discretion restored the suit as the application was filed on the same day. A discretion having been exercised in the facts of the
present case, we did not think that the learned Single Judge committed any illegality in affirming the order passed by the trial Court in exercise of its power under Section-151 of the Code in the facts of the case.
Md. Abdul Quddus Vs. Md. Moburak Hossain & Ors 8 BLT (AD)-29.
An order under Section
151 of the Code of Civil Procedure, when passed in the discretion of the court
is not derogatory to the ends of justice, should not be interfered with.
Md. Nuruzzamuu Sarker & Ors. Vs. Md. Khalilur Rahman & Anr. 8BLT (AD)-179.
Section-151 read with
Code of Criminal Procedure, 1898
The provisions in Section 151 C.P.C and the Section 561A Cr.P.C. do not empower or authorize the court to make an order affecting the other party in the proceeding without hearing him or in other words in disregard of the time old maxim audi alterem partem.
Khurshida Begum & Anr. Vs. Golam Mostafa & Ors. 10 BLT (AD)-100
When an order is passed by a court on being mislead as to record or under misapprehension of facts or due to its own mistake such issues cannot be raised or decided in appeal or review. A court of law is obliged to correct the mistake when true facts are brought before it and make such order as necessary for ends of justice in exercise of the inherent jurisdiction. The court must not allow its process to be abused by any such unscrupulous person.
M.A. Kabir Chowdhury & Ors. Vs. M. Mahbubur Rahman Miah & Ors. 10 BLT (HCD)-117
Section-151 read with
Family Court Ordinance, 1985
It appears from the operating portion of the judgment of the Family Court so far as it relates to passing decree for dower of 5 bighas of land, it has passed an imperfect decree which cannot be executed unless the said decree is not modified. The trial Court directed the defendant No. I to give 5 bighas of land equivalent to the price of 5 (five) bighas of land sold earlier or in the alternative price of 5 bighas of land on he basis of present market value. It will be not possible for the executing court to assess the value of 5 bighas of land. I find above that the defendant No. 1 in fact admitted to give 5 bighas of land indirectly out of schedule ‘Kha’ land. Accordingly, in exercise of sumoto powers. I modify the decree of the Family Court and direct the defendants to execute and register 5 bighas of land out of schedule ‘Kha’ land within 30 days of the decree. Failing which the plaintiff shall be at liberty to get 5 (five) bighas of land through the process of the executing proceeding.
Most. Rowshan Ara Begum Chowdhury Vs. Tahera Noor Jahan & Ors. 10BLT (HCD)-307
Section 151 of the Code does not formulate any new doctrine but only a Legislative recognition of well known doctrine and principle that every Court has inherent power to act exdebitio justitiate to do that real justice for administration of which alone it exists. Under section 151 Court acts exdefitio justitiate according to equity, justice and good conscience of a case and in consonance with fundamental principles of judicial procedure. It has been ruled by Superior Courts of Subcontinent that a Plaint may be rejected under the provision of order VII Rule I 1 and if Plaint cannot be rejected under Order, VII Rule I 1 same can be very well rejected in exercise of inherent power under section 151.
Purobi Rani Barmani Vs. Shohrab Hossain & Ors. 11 BLT (HCD)-496
Section-153 read with order 6 Rule-17
Whether Section 153 can he invoked by a Party who is guilty of Latches of Cover up his default. The rudiment of the Section is that the defect or error that is to be amended was not due to any latches of the parties in the proceeding. In a suit may be that the Court on its own accord finds any defect or error in a proceeding which may vitiate the proceeding if not amended. In that case this Section 153 is available to the Court concerned. It is not an alternative remedy of Order 6 rule 17 of the Civil procedure Code.
Sufia Khatoon & Ors. Vs. Mayor, Dhaka City Corporation. 11 BLT (HCD)-209
Version has changed nature and character of the Suit.
The respondent No. 1 had filed Written Statement in the suit denying that it was trying to transfer the suit land to the respondent No. 3 or any other person also stating the same in the Written Objection to the application for injunction that it was not even thinking for transfer of it to the respondent No. 3 or other Person but after 16 days it has come to say by incorporating an amendment that it has given permission or License to the respondent No. 3 to use the land on certain conditions on 18.03.2001 and handed over possession on 28.05.2001. This subsequent version has changed nature and character of the suit. It is not open to a Court under section 153 to allow an amendment, which will alter the real matter in controversy between the parties and involve setting up a new ease.
Sufia Khatoon & Ors. Vs. Mayor, Dhaka City Corporation. 11 BLT (HCD)-209.