Section 11-
Res judicata-Whether mere showing that a matter directly and substantially in issue in both the suits or proceedings is enough to attract the operation of the principle of res judicata, when there is nothing on record to show that both the parties are litigating under the same title.
Ayezuddin Sheikh vs Abdul Karim 42 DLR 154.
Section 11-
The bar of res judicatti is applicable to writ proceedings on the general principle that there should be an end to litigation.
Dr Syed Matiur Rob vs Bangladesh 42 DLR (AD) 126.
Section 11-
A court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter at a subsequent stage of the proceeding.
Md Emdaduddin Sheikh vs Atiqur Rahman 42 DLR 416.
Section 11-
Bar of Res judicata hits the issue of service of notice under section 5(1a) of Act No. 13 of 1948.
Govt of Bangladesh vs Basharaullah 40DLR 554.
Section 11-
If the adverse finding is actually the decision of the suit and forms a fundamental part of the decree then it will operate as res judicata, if made incidentally.
Sachindra Lal Das vs Hriday Ranjan Das 40 DLR (AD) 56.
Section 11-
What is res judicata? An adverse finding in any judgment of a suit dismissed, particularly when it is a conclusive decision in the suit, can be challenged in higher forums. Decision in the Redemption suits was on the same issue as in subsequent suit.
Sachindra Lal Das vs Hriday Ranjan Das 40 DLR (AD) 56.
Section 11-
It may be mentioned that a decision may be Res judicata against codefendants as well if there was conflict between them as held by the Privy Council in Munni Bibi vs Tirloki Nath, 53 ILR PC 103 and Kishum Prasad vs Durga Prasad, AIR 1931 PC 281 on this analogy also the decision against Chadra Bala, in Ext B, will operate as res judicata.
Sachindra Lal Das vs Hriday Ranjan Das 40 DLR (AD) 56.
Section 11-Explanation IV-
Res judicata -Constructive res judicata– Two suits, the earlier suit was for declaration of title and the latter suit for declaration of title and recovery of possession- the latter suit is hit by section 11, Explanation V CPC.
Hafizuddin Sarker and Lakjan Bewa and others vs Bangladesh and ors 42 DLR (AD) 57.
Section 11-
Principle of Res judicata is intended not only to prevent a new decision but also to prevent a new investigation so that the same person cannot be· harassed again and again in various proceedings upon the same question.
Shomsher Ali vs Bangladesh 45 DLR 405.
Section 11-
Decision on preliminary issue – Question of res judicata-In the instant case the previous proceeding was disposed of on a preliminary issue and no decision on other issues relating to status of co-sharer of the opposite party pre-emptor was given. Where an issue is raised but not decided it does not operate as resjudicata.
Refazuddin Mondal vs Abdul Razzaque @ Rezaul Karim & ors. 43 DLR 644.
Section 11-
A question decided in a writ petition disposed of on merit cannot be reagitated in .a subsequent suit between the same parties on the principle of res judicata.
Chairman, Rajdhani Unnayan Kartipakhya and others vs Abul Hossain & others 50 DLR 249.
Section 11-
The Bankruptcy suits are not barred by the principles of res judicata due to passing of decree by Artha Rin Adalat in favour of the plaintiff of the Bankruptcy suits and against the defendants of those suits.
Shamshad Asif vs Additional District Judge and others 52 DLR 138
Section 11-
The parties and the subject-matter in both the earlier and later suit are the same and the matter in issue as to the Joss 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- These issues were raised in the earlier suit and by necessary implication was rejected in the earlier suit and as such the suit is hit by res judicata.
Bangladesh Krishi Bank and others vs Al-Haj Md Nurul Islam & another 52 DLR 434.
Section 11-
If an issue was finally decided on merit in an earlier suit or even in a writ petition by the High Court Division, the same issue shall operate as Res judicata in view of the provision of section I 1 of the Code, in a subsequently filed suit on the same issue.
Shafi A Choudhury vs Pubali Bank Ltd and others 54 DLR 310.
Section 11—
For application of the doctrine of constructive Res judicata the conditions amongst others, 'the matter must be directly and substantially in issue' and 'has been heard and finally decided' appear to be sine qua non.
Eastern Bank Ltd and another vs Sufia Re-Rolling Mills and Steel Ltd and others 56 DLR 530.
Section 11-
When an issue is raised and decided by the trial Court but in appeal neither affirmed nor reversed, that cannot be said to be finally decided and the decision of the trial Court would not act as res judicata.
Eastern Bank Ltd and another vs Sufia Re-Rolling Mills and Steel Ltd and others 56 DLR 530.
Section 11—
In order to bring subsequent suit within the mischief of section 11, first and foremost requirement is that the Court in which former suit was pending and/or decided must be competent to try subsequent suit, must be of concurrent jurisdiction both in respect of pecuniary jurisdiction and subject.
Al Baraka Bank Bangladesh Ltd vs Rina Alam and another 56 DLR 588.
Sections 11, 151 & Order VII rule II –
It is well settled that where a plaint cannot be rejected under Order VII, rule 11 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 and others vs Islamic Bank Bangladesh Ltd and others 53 DLR (AD) 12
Sections 11, 151 & Order VII rule II-
As the ultimate result of the suit is as clear as day light such a suit should be buried at its inception so that no further time is consumed in a fruitless litigation.
Abdul Jalil and others vs Islamic Bank Bangladesh Ltd and others 53 DLR (AD) 12
Section 11, Orders VII rule 11 & IX rule 13 –
When miscellaneous case was filed alleging suppression and non-service of summons and disposed of accordingly, the question of falsity of claim in the suit was not a matter in issue and as such the same did not come up for consideration. Rejection of plaint on the ground of Res judicata in this position is erroneous.
Osiar Rahman vs Dharus Sunnah lslamia Madrasha 52 DLR 93.
Section 11 & Order VII rule 11-
An issue of Res judicata cannot be resolved in disposing of a petition under clause ( d) of rule l I of Order VII of the Code, because in rejecting a plaint under the said provision, the Court cannot travel beyond the four comers of the plaint.
Shafi A Choudhury vs Pubali Bank Ltd and others 54 DLR 310. =
Section 11 & Order VII rule 11-
0rdinarily, a plaint should not be rejected under Order VII rule l I of the Code on the ground of Res judicata unless it is so palpably clear and obvious from a meaningful reading of the plaint that no further evidence is required.
Shafi A Choudhury vs Pubali Bank Ltd and others 54 DLR 310.
Section 11 & Order VII rule ll(d)-
Res judicata—ln the instant case where the plaintiff does not dispute the determination of her share as in the preliminary decree but disputes, on the ground of fraud, the actual allocation of share in the final decree drawn in earlier suit, the inocation of the rule of finality is beside the point.
Nannu Miah vs Mosammat Peer Banu Bibi 43 DLR 526.
Section 15-
Suit under Admiralty jurisdiction when not maintainable-Since the plaintiff is neither the owner nor consignee nor assignee of any Bill of Lading of any goods and since no damage was done to any goods of the plaintiff on board by the defendant, the plaintiff-insurer has no locus standi to invoke the jurisdiction of the Admiralty Court under section 6 of the Admiralty Court Act. The plaint be returned to the plaintiff with liberty to file it in appropriate court if not otherwise barred.
Sadharan Bima Corporation vs Bangladesh Shipping Corporation 43 DLR 548.
Sections 16(d) and 17-
Section 16(d) is a general provision involving determination of any right to or interest in immovable property-Section 17 is in the nature of a proviso to section 16.
Abdul Gafur Sikder vs Shafia Khatun 41 DLR 500.
Sections 16(d) and 17-
For the application of section 16(d) the suit must be expressly for the purpose of determining the rights in immovable property.
So far as sections 16 & 17 of the CPC are concerned Krishan, J states as follows:
"It is contended that section 16, cl (d), Civil Procedure Code applies to the case and gives jurisdiction to the Godavari Court as some of the immovables included in the will are within that Court's jurisdiction and though the Kistna Court has also jurisdiction.
Abdul Gafur Sikder vs Mst Shafia Khatun 41 DLR 500.
Sections 16(d), 94, 151 & Or. XXXVIII r. I –
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.
Section 20 and Order VII, rule 10-
In choosing the forum for filing a suit cause of action is a factor though the defendant may not be a resident or may not be carrying on business having head office under jurisdiction of the court. In the suit in question it has been specifically urged that part of the cause of action arose at Dhaka as the contract out of which the claim was made was entered into and the claim was repudiated at Dhaka and as such the Civil Court at Dhaka has jurisdiction to try this suit.
National Bulk Carriers vs Bangladesh Agricultural Development Corporation 42 DLR 530.
Section 20 & Order 2(2)-
Cause of action may be defined as every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right for the judgment of the Court.
Amir Hossain Khairati vs Abdul Aziz Bepari and others 47 DLR (AD) 106.
Section 20 & Order VII rule 10-
Jurisdiction to entertain suit-A corporation can be said to carry on business at the place where it has a branch only in respect of a cause of action which arises wholly or in part at such place. If no part of the cause of action accrues at the place of the branch office the mere fact of the corporation having a branch office at the place will not give the court jurisdiction to entertain a suit.
Kh Mahatabuddin Ahmed vs Matin Tea & Trading Company 46 DLR (AD) 92.
Section 20(c) & Order VII rule 11-
Jurisdiction-When the Court rejects or refuses to reject a plaint it does so in exercise of the jurisdiction vested in it. Even where clause (d) of Order VII rule 11 of the Code is invoked the court is entitled to examine whether the suit is barred by law.
Guiness Peat (Trading) Ltd vs Fazlur Rahman 44 DLR (AD) 242.
Section 20(c) & Order VII rule 11-
In an application for rejection of the plaint on the ground of non-disclosure of cause of action the court need not dissect the plaintiff's case part by part, if a part of the cause of action arises within its jurisdiction.
Guiness Peat (Trading) Ltd vs Fazlur Rahman 44 DLR (AD) 242.
Section 24-
The High Court empowered to transfer appeal to it under section 24 of the Code.
MA Hakim vs Bholanath Sen 40 DLR 413.
Section 24-
District Judge as referred to in section 29(4) has ample authority to transfer an appeal pending before him preferred from the decision of Election Commissioner.
Expression "District Judge"-Meaning ofProvision of General Clauses Act-District Judge has unfettered power to transfer an appeal preferred to him from a decision of the Election Tribunal.
Md Zuljikar vs Abul Kalam Chowdhury 42 DLR 21.
Section 24-
In transferring a case from one Court to another the convenience of transfer which is to be taken into consideration by the Court is the convenience of both the parities.
Tambia Khatun vs Abdul Rauf Sowdagar 46 DLR 521.
Section 24-
Power of the District Court under this section is somewhat of administrative nature and discretionary. In suitable cases the District Judge can even suo motu exercise this power in the interest of justice. In that view there is no illegality in the order of transfer of the suit, particularly when both the Courts are situated within the same premises.
Bijoy Kumar Basak vs Narendra Nath Datta 43 DLR 68.
Section 24-
Though the schedule of plaint included some lands which have not fallen within the territorial jurisdiction of the court, the Court does not suffer from lack of jurisdiction in view of the fact that the suit was transferred to it by a competent court.
Zahir Shekh vs Md Yakub Ali 43 DLR 168.
Section 24-
The utterance of any party outside the Court cannot be a sufficient ground for transferring a suit.
Anwarul Huq (Md) and others vs Md Bappi Gazi and others 47 DLR 530.
Section 24-
Where an application for transfer is moved before a court the court is to hear the application after issuance of notice on the other side but where the Court suo motu passes an order under section 24 CPC no notice is required to be given to other parties. When the Court without issuing notice to other parties passed an order, the omission to hear the other side is contrary to section 24 CPC and amounts to be some mistake apparent on the face of the record.
Mathura Mohan Pandit being dead his heir Sudhir Chandra Das vs Hazera Khatun 48 DLR 190.
Section 24-
Section 24 CPC does not refer to a Judge but to the Court in the matter of review.
Mathura Mohan Pandit being dead his heir Sudhir Chandra Das vs Hazera Khatun 48 DLR 190.
Section 24-
The court below has correctly rejected the application under section 24 of the Code of Civil Procedure since the case pending in the Artha Rin Adalat cannot be heard analogously with any other case filed in any other normal Court created by the Civil Courts Act.
Ripon Packaging and Accessories Ltd vs Eastern Bank Ltd and another 54 DLR 31
Sections 24 and 115-
General power of transfer and withdrawal-Notice to be given to the parties before making the transfer orderLeamed District Judge committed an error of law in making the order of transfer without serving notice.
Section 115 is a discretionary jurisdiction of the Court-The present petitioner has not suffered any hardship or prejudice by a simple order of withdrawal of the appeal from the Court of the 5th Additional District Judge to the Court of the District Judge. Dhaka-No interference is called for.
Haroon Malik (Md) vs National Bank Ltd 42 DLR283.
Section 24(1)-
District Judge derives power of transfer or withdrawal of a case under section 24.
Md Zuljikar vs Abul Kamkam Chowdhury 42. DLR21.
Section 24(1)(b)-
The power conferred on the High Court Division under section 24(i) (l)(b) of the Code of Civil Procedure regarding the withdrawal and transfer of case is an unfettered one.
MA Hakim vs Bholanath Sen 40 DLR 413.
Section 24(1)(b)(i)-
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 assumption will be a ruinous invitation to a floodgate which we have no intention to open. As yet the petitioner has not given any hard evidence of the trial Court's fear or favour of and for the District Judge concerned. The High Court Division rightly di<! not encourage a transfer on a mere apprehension.
Shahida Khatun vs Abdul 'Malek Howlader and others 50 DLR (AD) 147.
Section 24(2)-
Sub-section (2) of section 24 speaks that for the purpose of section 24 Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Judge. Section 22 of the Civil Courts Act, 1887 also provides that a District Judge may transfer to any Subordinate Judge under his administrative control any appeal pending before him from the decrees or orders of Munsif.
Muhammad Zuljikar vs Abul Kalam Chowdhury 42 DLR 21.
Section 30 & Order XVI rule I-
There is no bar in issuing summons upon cited witnesses for the 2nd time if it is necessary in the interest of justice. If the application for summons is not a bonafide one, the Court may refuse the prayer for issuance of summons.
Dildar Hossain vs Md Sharif Hossain 43 DLR 196.
Section 34—
Court is free to award interest as it considers in its discretion and not bound by the rate as stated in the contract.
Messrs MM lspahani vs Sonali Bank.37 DLR (AD)l.
Section 34-
Interest on the loan from the date it was taken as well as during the pendency of the suit, disallowed in the special circumstances of the case.
Messrs MM lspahani vs Sonali Bank 37 DLR (AD) 1.
Section 34-
Payment of interest from the date of suit to the date of decree and then till realisation is at the discretion of the court-Appellate Division in the present case disallowed all interests not only from the date of the suit till realisation but from the date of the period prior to that.
Messrs MM lspahani vs Sonali Bank 37 DLR (AD)l.
Section 34-
The award of interest is purely a matter of statutory power wherein the discretion of the Court is absolute.
Sonali Bank vs Mahbubul Amin 41DLR298.
Section 34-
The trial Court granted the relief sought for by decreeing the suit awarding interest @ 15% per annum till realisation.
Sonali Bank vs Mahbubul Amin 41DLR298.
Section 34-
Section 47B of the Insurance Act, 1938 as amended by Ordinance XXV of l 970 provides for granting of interest on claims. This provision displaces the discretion of the Court conferred by section 34 of the Code of Civil Procedure in the matter of granting interest. Hence the plaintiff-appellant is entitled to the statutory interest under section 4 7B of the Insurance Act. The Court has no discretion in the matter.
Chalna Marine Products Ltd vs Reliance Insurance Ltd and others 50 DLR (AD) 100.
Section 34-
Decree-Award of interest oendente lite till realisation of decretal amount made-Interest has been granted from the date of the suit.
Sonali Bank vs Mahbubul Amin 41 DLR 298.
Section 34-
Grant of interest from the date of the suit is covered by section 34 CPC which gives complete discretion to the Court to award pendente lite interest.
The other two kinds of interest which the Court may grant in a case under section 34 CPC are interest for the period prior to the institution of the suit. This is, of course, a matter of substantive law and is outside the purview of the section and next, the Court can award interest for the period after passing of the decree till the payment of sum due. Section 34(2) of the Code of course speaks of further interest on such aggregate sum from the date of decree to the date of payment or other earlier date. Thus it appears to us that as regards interest from the date of the suit however the position is different and the matter is covered by section 34 which gives complete discretion to the court to award pendente lite interest. Sonali Bank vs Mahbubul Amin 41 DLR 298.
Section 34-
The amended provision of the insurance Act displaces the discretion of the Court in the matter of granting interest.
Bangladesh General Insurance Co Ltd vs Chalna Marine Products Co Ltd 51 DLR 357.
Section 34-
The right to interest arises only after the claim for any principal amount is found valid and whether interest could be awarded or not in a case is also within the discretion of a Court.
Bangladesh Water Development Board vs Contractor, Manu Barrage 53 DLR 200.
Section 34(1) and (2)-
Realisation of interest pendente lite – Decree is silent about the award of interest-Sub-section (1) expostulates the different stages where interest can be awarded by the Court-But no interest can be claimed if the interest is not granted in the decree.
The contention of the appellant that "any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused" as laid down in section 11, Explanation 5, CPC, is not acceptable in this case as plaintiff undisputedly made a specific prayer for interest from the date of the suit to which he was entitled as found by the Court.
Sonali Bank vs Mahbubul Amin 42 DLR (AD) 107.
Section 34(1) and (2)-
Money suit relating to bank loan was decreed on defendant's admission of claim minus the amount already paid. The judgment-debtor was to pay the decretal dues by instalments-Admission of the appellants (judgment-debtor) was limited only in. respect of the principal sum and no indication was there in the decree either that the bank is entitled to further or any interest on the principal sum till realisation of the dues. Terms of the decree being silent as to further interest or any interest, it must be held that the Court has refused such interest.
Kadam Rosul Silicate Works vs Sonali Bank 42 DLR (AD) 294.
Section 35A –
Compensatory cost— The present writ petition is not only frivolous but also vexatious and filed to harass respondent No. 5 for which the petitioner is liable to pay him a compensatory cost of Taka 5000.
Ziaul Hoque vs The Election Commission 43 DLR 9.
Section 35A—
The Court justly discharged the Rule with the compensatory cost considering the conduct of the petitioner as vexatious aimed at delaying the execution case.
Abdur Rahman (Md) v.r Md Iqbal Ahmed and others 49 DLR (AD) 142.