CODE OF CIVIL PROCEDURE (V OF 1908)
Section—115
A revisional Court cannot go into a question of fact unless the petitioner is able to show that the concurrent finding of fact arrived at by the Courts below is perverse or it is based on no evidence or on misreading of evidence.
Abdur Razzak Ahila Khatun and others 13 BLD (HCD) 610.
Section—115
Mere irregularity or illegality in the exercise of jurisdiction will not render the subordinate Court’s judgment without jurisdiction. The party seeking revision is to show further that there was violation of statutory provision or principle of natural justice which rendered the proceeding coram-non-judice. A reference to the provision of section 115 of the Code would show that every irregularity or even illegality in the exercise of jurisdiction does not render the judgment void. [Per Mahmudul Amin Chowdhury, J. (dissenting)]
Most Rokeya Begum Vs Md Abu Zaher and others, 20 BLD (AD) 90.
Ref: Mohammad Swaleh and another Vs. MIs. United Grain & Fodder Agencies,1964 PLD(SC)97. Akrab Au and ors. vs. Zahiruddin Karl and others, 30 DLR(SC) 81. Shahzada Muhammad Umar Beg Vs. Sultan Mahmood Khan and another, PLD197O (SC)139. Ramjan Khan alias Ramjan Ali Khan Vs. Obaidul Huq Chowdhury and others, 28 DLR(AD)57, Sona Mia s. Abdul Khaleque reported in 10 BLD 209, Kurshid Ali and others Vs. Noorjahan Bewa and others, 15 BLD82, Haidernessa and another Vs. Monowara Begum and others, 16 BLD(AD) 280, Hazari Bala Sana and others Vs. Niron alias Niranjan Mandal and others, 17 BLD (AD)294, Md. Golam Sarwar Vs. Md. Liakat, 18 BLD(AD)15; Abdul Majid Howlader Lehazuddin reported in 48 DLR(AD)160; Akhlasur Rahman and ors. Vs. Safarullah and others, 14 BLD(AD)20; Fazaruddin Vs. Maijuddin and others, 44 DLR(AD)62—Cited.
Section—115
It is a settled principle that the findings of fact, whether concurrent or not, arrived at by the lower appellate court, which is the final court of fact, is binding on the High Court Division, as a revisional court except in certain well-defined exceptional circumstances, such as non-consideration or misreading of the evidences affecting the merit of the suit.
In the instant case the court of appeal failed to consider the exhibit-B series of the defendant by which they paid rent all through whereas there is no paper to show, after the alleged auction purchase that the plaintiffs got mutation in their favour, the plaintiff also failed to record the suit land in the MRR Khatian and also they did not pay any rent and these prove that the appellate court did not take notice of all the documentary evidence on record to find out the possession of the parties correctly and as such an interference by the revisional court is called for.
Md. Nizamuddin and others Vs Rahima Bewa and others, 20 BLD (HCD) 144.
Ref: Keramat Ali and ors. Vs. Mohammad Yunus Hazi and ors. 15 DLR(AD)120; Court of Words of Jajhat Vs The Saidpur Commercial Bank Ltd. 5 DLR282; Moulvi Abdus Samad Mollik Vs. Pran Gour Basak and ors, 7 BLD (AD)25—Cited.
Section—115, Order XLI Rule 31
When the Court of the first instance after considering the evidence and demeanour of the witnesses comes to a finding, which has been reversed by the appellate Court without giving due consideration on the proper aspects of the case, there cannot be any reason why the finding of the lower appellate Court should not be set aside.
Fatema Khatun Vs. Fazil Mia, 21 BLD (HCD) 14.
Ref: Federal Radio Commission G.W. Ply C.W. Vs. Bater, 1922 T.C. 231; Rani Hemanta Kumari Debi Vs. Brojendra Kishore Roy Chowdhury, (1889—90) L.R. 17 l.A. 65; Shan Karrao Vs. Sambhu, AIR 1940 F.C. 192; Sree Meenakhi Mills Limited Maduari Vs. Commissioner of Income Tax Madrass, PLD1957(SC)(India) 188; Nawar Mohammad and another Vs. Shahzada Begum and another, PLD 1 974(SC)22; 1 983BLD(AD)342; Radha Krishna Vs. Muraka Das, 36 DLR(AD) 253; Korshed Alam alias Shah Alam Vs. Amir Sultan Ali Hyder and another, 35DLR (AD) 133—relied.
Section—115
Per Mustafa Kamal, J: There was no prayer for amendment of the plaint, not even before the Appellate Division. If in revisional jurisdiction the High Court Division rides roughshod over both substantive and procedural law then a litigant does not know what will happen to his case, what course will it take and what relief will ultimately emerge. This is a travesty of justice, as we know it. The suo motu exercise in the manner it was done, besides being without jurisdiction was an act of extreme judicial indiscretion.
Per Bimalendu Bikash Roy Chowdhury, J: Plaintiff No. 1 Shamsun Nahar Be- gum never appealed against the decree of the original court nor did she take any appeal therefrom. She did not also prefer any revision. In such circumstances the learned
Judges of the High Court Division had no jurisdiction to give her any further relief beyond what was granted by the first two courts below.
Practice and Procedure
Per A.T.M. Afzal, CJ: The High Court Division dealt with the matter very casually as if it was disposing of a Lawazima matter without the need of any assistance. This was never the practice of a superior Court which ever acted in such a light-hearted way in a serious matter like this nor should it ever do it for the sake of, if not anything else, its own credibility.
Md. Hefzur Rahman Vs. Shamsun Nahar Begum and another, 19 BLD (AD) 27.
Ref: ILR 25 (Cal) 9 ; PLD 1960 (Lahore) 1142; Shah Bano Case, AIR 1985(SC)945; Hedaya by Charles Hamilton (Book IV, Chapter XV, Sec. 3, p. 45) and Digest of Mohammadan Law (compiled and translated from authorities in the original Arabic) by Neil B E Baillie (Part Second, Book II, Chapter VII Section Sixth Pp 169—170); MulIa. Principles of Mahomedan Law (Fourteenth Ed.) para 279; Dr. Paras Dewan, Muslim Law in Modern India, 1982 Ed. p. 130; Imam Shafei on Al Quran (11:241) commentary on the Holy Quran by Ibn Katheer (d 1373 AC Damas Cus) Translated by Danial Latifi) and Tafsere Tabare Sharif, 4th Volume, Allama Abu Jafar Tabari (published by Islamic Foundation in 1993); “Divorced Muslim Women in India” by Lucy Carrol; Fatwai-Alamgiri (Indian Ed., 2nd Volume p. 144); Professor Tahir Mahmood, ‘Personal Laws in Islamic Countries’, (2nd Ed. 1995) P. 261-262; AIR 1951(SC) 177; AIR 1991 (SC)409; PLD1978 SC 242; Hamilton’s Translation of Hedaya and Baillie’s Digest of Mohammadan Law; “A Way to Islam” by Mr. Justice Mohammad Gholam Rabbani; Gazi Shamsur Rahman’s wewaex Bmjvgx AvBbi fyi” (Commentaries on codified Islamic Law) at p. 611; I.L.R. 25 Calcutta 449; 9 DLR (1957)455; A.I.R.1929 (Oudh) 527; The petition of Din Mohammad, ILR, Ailahabad series (1883) Volume (V)226;— Referred
Section—115
During the transitional period of setting up Benches of the High Court Division outside the capital the case record of the Rule in question was transmitted once from Dhaka to Rangpur and then from Rangpur to Dhaka but no notice of such transmission of case record from Rangpur to Dhaka was given to the opposite party of the Rule i.e. the present appellant. Evidently the learned Judge of the High Court Division failed to consider the uncontroverted assertion of the present appellant as the opposite party in the Rule that he had engaged Mr. Abdul Mannan Khan at Rangpur as his Advocate for the Rule but because of his death in October 1990 he could not know about the fate of his case before 7.8.92 and he came to Dhaka on 15.8.92 and thereafter instructed his lawyer to take steps for re-haring of the Rule.
Falguni Majumder Vs Mokbul Hossain Biswas and ors, 19 BLD (AD) 223.
Section—115
Family Court Ordinance, 1985, Section—5
The jurisdiction of the High Court Division while hearing a revision petition is purely discretionary and the discretion is to be exercised only when there is an error of law resulting in an error in the decision and by that error failur of justice has been occasioned and interference is called for the ends of justice and not otherwise. Error in the decision of the subordinate Courts do not by itself justify interference in revision unless it is manifested that by the error substantial injustice has been rendered. The decision which is calculated to advance substantial justice though not strictly regular may not be interfered with in revision.
Md. Nurul Abser Chowdhury Vs Most. Jesmin Akhter, 19 BLD (HCD) 363.
Section—115 read with Order XLI Rule 31 Judgment of affirmance
In case of reversal of judgment of the trial court, consideration of the evidence and materials brought on record, as of necessity, is required to be made but in the case of affirmance of the judgment of e trial court, the narration of the entire evidences and reiteration of the reasons given by the trial court are not essential and expression of general agreement with that of the trial court is sufficient.
Nurul Abser Chowdhury Vs Most. Jesmin Akhter, 19 BLD (HCD) 363.
Section—115 read with Order XLI Rule 31
The object of Rule 31 of Order 41 of the Code is to see that a Judge does not act callously or mechanically. Its purpose is to put the Judge on the right track and to the extent Rule of Procedure can do it, to see that he acts judicially. It enables the High Court to judge whether the appellate Court below had independently considered the case with a consciousness of relevant points which arose for adjudication.
Musammat Nurjahan Begum and ors. Vs. Kamaluddin Ahmed, 21 BLD (HCD) 538.
Ref: (1995)11 BLD(AD)245; 37DLR79; 35 DLR 216; 6DLR271; 1982BCR(AD)321; AIR 1966 (kerala) 179; PLD1976(SC)785; 14 BLD(AD)229; 13BLD(AD) 120—Cited.
Section—115
Reliance by the courts below on statements made by the petitioner in cross- examination in arriving at its decision goes beyond the pleadings and evidence on record, and the decision is accordingly not sustainable.
Kuleshar Barman alias Kakaru Barman v. Sree Naresh Chandra Barman and others, 21 BLD (HCD) 597.
Sections—115 and 151
Law is settled that a proceeding under section 151 of the Code cannot be resorted to where there is alternative remedy available for seeking redress. The inherent power conferred under section 151 of the Code can be available in a case where there is no other provision for providing a redress. Power under section 151 of the Code can be invoked by a court only when the court is satisfied that prevention of the abuse of the process of the Court is necessary or when ends of justice demand that the wrong complained of would be remedied.
Amirunnessa and others Vs Abdul Mannan and others, 20 BLD (HCD) 14.
Section—115
If on a scrutiny of the records it is found that the order passed by the court is ultimately supportable in law but the reasons assigns for passing such an order is not tenable that will be have no bearing upon the merits of the order so passed because on an ultimate analysis of the facts and circumstances of the case it is found that the order passed by the court is in accordance with law.
M. Majid Vs Iqbal Bahar Chowdhury and others, 20 BLD (HCD) 285.
Section—115
While exercising revisional power under section 115 C.P.C. the High Court Division usually does not go into questions of fact. But when the appellate Court reverses the judgment of the trial Court on non-consideration of the material evidence on record and without adverting to the reasons on which the trial court based its judgment, the High Court Division may be justified in interfering with the finding of facts arrived at by the appellate court when it finds that non-consideration of such evidence has materially affected the decision of the appellate court occasioning failure of justice.
Johara Khatun and others Vs. Md. Habib Khan and another, 15 BLD (AD) 120.
Section—115
Code of Criminal Procedure, Section—476
The Supreme Court (High Court Division) Rules, 1973, Rules 7 and 8
When a revisional application arises out of a proceeding in any Subordinate Court (Civil, Criminal or Revenue) under Section 476 Cr.P.C., it is only a Division Court (Bench) which has been authorised under Rule 8 of the Supreme Court High Court Division) Rules, 1973 to hear such matters. Under Rule 7 it is only the Division Court which can hear an appeal under Section 476B Cr.P.C. It is well-settled that an order under Section 476 Cr.P.C. passed by a Civil Court, if no appeal lies, will be amenable to revision, only under section 115 C.P.C. But because of the special provision in Rule 8, such an application under Section 115 C.P.C. can be heard only by a Division Court.
Md. Shamsul Hoque Bhuiyan. Vs. The Institution of Engineers, Bangladesh and others, 14 BLD (AD) 190.
Section—115
When an authority acts in accordance with the provision of a law which says that the decision made by that authority is final and the decision is a judicial decision, such a decision, although made final by fiction of law, is amenable to the revisional jurisdiction of the High Court Division under Section 115 C.P.C. Appeal lies to the Arbitration Appellate Tribunal against an order making the award.
Bangladesh Vs. Md. Mazibur Rahman, 14 BLD (HCD) 362.
Section—115
The Artha Rin Adalat, though a special court, is subordinate to the High Court Division and as such it is amenable to the revisional jurisdiction of the High Court Division under Section 115 C.P.C.
Sonali Bank Vs. M/S. Ali Tenary and others, 14 BLD (HCD) 457.
Section—115
Re-assessment of evidence in reversing a finding of fact
Ordinarily the High Court Division in exercise of its revisional authority should not embark upon the function of the lower appellate Court to reassess the evidence on record in reversing a finding of fact. If however, the High Court Division is satisfied that the lower appellate Court has failed to consider any material evidence in reversing a finding of fact arrived at by the trial Court on assigning proper reasons therefore, the proper course in such a case will be to send the case back on remand to the appellate Court for re-hearing the appeal upon proper assessment of the evidence on record. But there may be cases where in the interest of justice, the High Court Division may also consider the evidence itself which was not considered by the lower appellate Court while upholding the decree of the Court of appeal below.
Md. Golam Sarwar and others Vs. Md. Liakat Ali and others, 18 BLD (AD) 15.
Section—115
Non-Speaking Order
Simply because the impugned order was not a speaking order, could not by itself be a valid ground for interference by the High Court Division unless it can be shown that the subordinate Court has committed any error of law “resulting in an error in the decision occasioning failure of justice”.
The order of the subordinate Court may have been a bad order and improper one not having given any reasons but before interfering with the same the High Court Division is required to examine whether the same has resulted in an erroneous decision occasioning failure of justice.
Abdul Motaleb Vs Md. Ershad Ali and others, 18 BLD (AD) 121.
Section—115
Ordinarily in revision the High Court Division should not interfere with the finding of fact arrived at by the lower appellate Court upon re-appreciation of evidence. In the instant case the lower appellate Court reversed the legal finding of the trial court based upon proved facts, namely, that the preemptor had no knowledge of the sale in question prior to 19.1.78 and in so reversing had drawn a wrong conclusion upon proved facts, the High Court Division does not appear to have committed any error of law in restoring the judgment of the trial Court after setting aside that of the lower appellate Court.
Anwara Khatun Vs Md. Abdul Hye and ors, 18 BLD (AD) 223.
Ref: 46DLR (AD) 187—Cited.
Section—115
Order 23, Rules 1(1) 1(2)
Formal defect or other sufficient grounds as contemplated under the rules of Order 23 C.P.C. should be liberally construed. There is no legal bar in granting an application for withdrawal of a suit with liberty to sue afresh for the self -same matter even at the revisional stage.
Abdul Wahed Mia Vs. Shaira Khatun, 14 BLD (HCD) 83.
Ref: 25 DLR, 485 (AD),ALR 1936 All. 450-cited.
Section—115
When the concurrent findings of fact arrived at by the Courts below supported by evidence on record and there being no error of law involving the case, there is no scope for interference in revision.
Abdur Rashid Vs Shahajahan Ali & ors., 18 BLD (HCD) 455.
Ref: 34 DLR 5—Cited.
Section—115
In an appropriate case the High Court Division even in suo motu in exercising power under section 115 of the Code to pass necessary order to uphold the legal remedy to given to the litigant. Accordingly, the judgment and decree of the courts below are rectified only to the extent that the document in question is legal and valid one in respect of transfer of 0.30 acres of land but it is void and illegal in respect of remaining portions of the land.
Joynal Abedin Vs Maksuda Khatun and others, 18 BLD (HCD) 647.
Ref: 43 DLR177; 39 DLR(AD)46; 36 DLR (AD)1; 16 DLR(SC)155; 27 DLR 55— Cited.
Section—115, Order XLI Rule 31
The provisions of Order XLI Rule 31 of the Code enjoins that either reversing or affirming the decision of the trial Court it is incumbent upon the appellate court as a final court of fact to consider, assess both oral and documentary evidence in order to come to his own independent finding particularly when it reverse the finding of the trial Court. But in the instant ease the Court of appeal below having failed to comply with the said mandatory provision of law and as such the judgment and decree of the Court of appeal below cannot be sustained in law.
Besarat Molla & others Vs Bangladesh, 20 BLD (HCD) 258.
Section—115 and Order XLI Rule 31
Non-consideration of material evidence vitiates a judgment calling for interference in revision
The judgment of the appellate Court was vitiated by total non-consideration of the evidence of all the 6 witnesses of the pre-emptees proving that the pre-emption case was barred by limitation. The High Court Division was wrong in refusing to exercise its revisional jurisdiction in the case where due to non-consideration of the material evidence on record an erroneous decision was arrived at occasioning a grave failure of justice.
Abdul Mazid Howlader Vs. Lehajuddin Howlader, 16 BLD (AD) 197.
Section—115
In view of the obvious laches on the part of the petitioner as also the concurrent findings of facts recorded by the first two courts below there being no error of law involving the case, there is no scope for interference in the order of the High Court Division.
Additional Deputy Commissioner (Revenue) and Assistant Custodian, Vested Property, Bagerhat Vs Md. Shahajahan Au and others, 19 BLD (AD) 25.
Section—115
Concurrent findings of fact — when can be interfered in revision?
When findings of fact concurrently arrived at by the Courts below are vitiated by misreading and non-reading of material evidence or misconstruction of a material document a case for interference is made out while exercising revisional power under Section 115 of the Code. In such cases the High Court Division is competent to set aside concurrent findings of fact.
Abdur Rahman Sowdagar being dead his heirs and heiresses Moriam Khatoon and others Vs. Elam Khatun and others, 16 BLD (HCD) 462.
Ref: 7 DLR6; 13 DLR 710; 41 DLR (AD)3—Cited.
Section—115
Concurrent findings of fact
The trial Court as well as the appellate Court on due consideration of the evidence on record concurrently found that the plaintiff- petitioner had been given all reasonable opportunities to defend himself and there had been no irregularity in the conduct of the departmental proceeding against him conducted by a Domestic Tribunal. In the absence of any error of law such concurrent findings of fact based on evidence on record cannot be disturbed in revision.
Md. Momtazuddin Khan Vs. Managing Director, Agrani Bank. 16 BLD (HCD) 515.
Ref: 29DLR(SC)41; 29DLR(SC)39; 31 DLR (AD)272;—Cited.
Section—115
The finding of the lower appellate Court on ‘the genuineness of the bainapatra is not binding on the High Court Division as the revisional Court because of non-consideration of the material evidence of P.Ws. I and 3 and non-examination by the plaintiff of an attesting witness to the bainapatra. under such circumstances the High Court Division was right in interfering with the finding of fact arrived at by the lower appellate Court with regard to the genuineness of the bainapatra.
Most. Akiman Nessa Bewa and others Vs Harez Ali and others, 17 BLD (AD) 36.
Section—115
It is an empowering provision granting discretionary jurisdiction to the High Court Division to correct any error of law committed by any Subordinate Court resulting in an error in the decision occasioning failure of justice. In appropriate cases the High Court Division may even suo motu exercise such jurisdiction to prevent failure of justice.
Additional Deputy Commissioner (Revenue) and Assistant Custodian, Vested Property, Sirajganj Vs Md. Abdul Majid and others, 17 BLD (AD) 57.
Section—115
Reversing finding of fact in revision and construction of a document
Construction of document is a mixed question of law and fact and the same having not been properly construed by the lower appellate Court the High Court Division was within its competence to reverse that finding on giving cogent reasons, although ordinarily the High Court Division does not interfere with a finding of fact while exercising revisional power. In this case the Appellate Division ignored its own practice in this regard by accepting the finding of the High Court Division, which reversed a finding of fact on the genuineness of lease document relied on by the final Court of fact.
Md. Nurul Islam and others Vs Bangladesh and others, 17 BLD (AD) 91.
Section—115
Every matter required to be decided by a court judiciously on application of mind with reasons in support thereof would be a case decided for the purpose of exercising revisional jurisdiction under section 115 of the Code. To put it differently, section 115 of the Code would be attracted if a court subordinate to the High Court Division has given a decision in respect of any state of facts after judicially considering the same.
Sirajul Islam Chowdhury Trawlers Ltd. Vs Sirajul Islam Chowdhury, 20 BLD (HCD) 347.
Ref: S. Zafar Ahmed Vs. Abdul Khaliq, PLD1964 (West Pakistan) 149; Bashir Ahmed Khan Vs. Qaiser Ali Khan and ors. PLD 1973 SC 507; Ghulam Muhammad Vs. Sultan Mahmud and ors. 15 DLR SC 172—Cited.
Section—115 read with Order XLI Rule 31
Without reversing the findings of facts concurrently arrived at by the Courts below on the grounds covered by section 115 C.P.C. the High Court Division has no jurisdiction to disturb the findings of facts. It cannot superimpose itself as a third Court for fresh appreciation of the evidence on record, this being not the function of a Court of revision.
Md. Shah Alam Vs Musammat Farida Begum, 17 BLD (AD) 145.
Section—115
Finding of Facts
A finding of fact, whether concurrent or not, arrived at by the lower appellate Court is binding upon the High Court Division in revision except in certain well-defined circumstances, such as non-consideration or misreading of the material evidence affecting the merit of the case.
Amanatullah and others Vs Ali Mohammad Bhuiyan and another, 17 BLD (AD) 199.
Ref: ILR 44 Cal. 186; AIR 1945(PC) 82—relied upon.
Section—115
The trial Court dismissed the suit. On appeal by the plaintiff the appellate Court as the final Court of fact reversed the judgment of the trial Court and decreed the suit on proper assessment of the evidence on record. Since the findings of the appellate Court do not suffer from any legal infirmity nor are they vitiated by any procedure affecting the merit of the case, the case is concluded by findings of fact and it calls for no interference under section 115 C.P.C.
Md. Shah Jahan and others Vs Mir Hossain and others, 17 BLD (AD) 218.
Section—115
It is a settled principle that the findings of fact, whether concurrent or not, arrived at by the lower appellate Court, which is the final Court of fact, is binding on the High Court Division, as a revisional Court except in certain well-defined exceptional circumstances, such as non-consideration or misreading of the material evidence affecting the merit of the case.
In the instant case, from the judgment of the appellate Court it is found that in arriving at his findings they said Court carefully considered all the material facts and circumstances of the case and evidence on record, both oral and documentary, inclusive of the registered Kabuliyat, R.S. and S.A. Khatians, registered sale deeds, and rent receipts and consequently these findings of facts are immune from attack in revision.
Hazari Bala Sana Vs. Niron alias Niranjan Mandal 17 BLD (AD) 294.
Section—115
In exercising power under this section the High Court Division does not interfere with an interlocutory order passed by the subordinate Court unless the impugned order is perverse and illegal and it occasions failure of justice. The ultimate decision rests on the question of ‘failure of justice’.
Md. Jahur Ahmed and others Vs. Chowdhury Ali Reza, 17 BLD (HCD) 277.
Ref: 39 C.W.N. 595; A.I.R. 27Mad 524;—Not applicable.
Section—115
It is now well-settled that a revisional application has to be filed within 90 days from the date of the impugned order as it is necessary in case of appeal unless the delay is explained to the satisfaction of the Court.
Ramizuddin alias Kalu Mia Mistri and others Vs Kazi Tajul Islam and others, 17 BLD (HCD) 424.
Ref: 39 DLR (AD) 205; 2 BLC (AD) (1997) 11—relied upon.
Section—115
Findings of fact
The findings arrived at by the Courts below having been rested upon consideration and discussion of legal evidence and materials on record and also on a correct and proper analysis of the legal aspects involved in the case and the findings being findings of fact are not liable to be disturbed by the High Court Division in the exercise of power under section 115 of the Code.
Zamir Uddin Ahmed Vs Md. Ziaul Huq and others, 17 BLD (HCD) 648.
Ref: Moore’s Indian Appeal Volume 11, 1866-7 Page 468; PLD 1969(SC)565; 17DLR (HCD)119; 9 DLR(AD)46; 44DLR(AD) 176; 17 Indian Appeal, 122; 29 DLR(SC)268; 3ODLR (SC)81; 37DLR(AD)205; 41DLR (AD) 3; 42 DLR(AD) 289; 15BLD (AD)237; 16 BLD(AD) 280;—Cited.
Section—115
Concurrent findings of facts based on evidence cannot be disturbed when both the trial court and the appellate court, as the final courts of facts, upon consideration of the evidence on record concurrently found that the petitioner is a defaulter in payment of rent and the suit premises is required bonafide by the plaintiff for his own use and occupation and such findings of facts having been found by the High Court Division to be based on evidence on record, there was no occasion for the Appellate Division to interfere with such concurrent findings.
Mazharul Borhan Vs. A.H. Bhuiyan, 15 BLD (AD) 237.
Section—115, Order XLI Rule 24
When there are misreading of evidence and non-consideration of some material evidence it becomes incumbent on the revisional Court to consider the same and to arrive at proper findings on the basis of the evidence on record and to finally dispose of the case. The High Court Division was not justified in lightly passing the order of remand instead of finally disposing of the revision case itself on the materials on record.
Hussain Ahmed Chowdhury alias Ahmed Husain Chowdhury and others Vs. Md. Nurul Amin and others, IL 6 BLD(AD) 31.
Ref: 43 DLR (AD)78;—Cited
Section—115(1)
Mere error of law without occasioning failure of justice cannot by itself be a ground for interference under section 115(1) of the Code of Civil Procedure.
Advocate Moh. Abdul Hamid Vs Moh. Faziur Rahman, 18 BLD (HCD) 587.
Ref: A.I.R. 1969(SC) 677; A.I.R .1976 (SC 744; A.I.R. 1974 (SC) 1185; A.I.R. 1982 (SC) 983;—Cited.
Section—115(1)
Ordinarily in exercise of revisional authority under section 115 of the Code the revisional Court is not empowered to interfere with the finding of fact arrived at by the subordinate Court or tribunal upon reapprecation of evidence unless there has been non- consideration or gross misreading of evidence by the subordinate Courts or tribunals which has materially affected the merit of the case.
Abdul Mutalib Vs Md. Mostakim Au and others, 19 BLD (AD) 157.
Ref: A1R1949 PC156; 6BLD(AD)267: 8 DLR (AD)172; Syed A.Jalil Vs. Mahbub Alam and others, 46DLR(AD)96; 38 DLR (AD)276—Cited.
Section—115(1)
Merely because an original document was not brought through foreign office from abroad it cannot be held that the same has no evidentiary value and that it is not a genuine one. The concurrent finding of fact of the Courts below as to genuineness of Ext. 1 being based on evidence, no interference is called for.
The Managing Committee, Pirdangi S.I. Senior (Fajil) Madrasha & another, Vs Md. Mozammel Haque and others, 21 BLD (AD) 76.
Section—115(1)
Mere error of law is no ground for invoking this Court’s revisional jurisdiction unless it is shown that a failure of justice has been occasioned by that error.
Zakaria Hossain Chowdhury Vs The City Bank Limited and others, 21 BLD (HCD) 170.
Ref: Shah Wali Vs. Ghulam Din alias Gaman and Mohammad, 19DLR(SC)143; Bangladesh and another Vs. Md. Salimullah and ors. 35DLR(AD)1; Muhammad Swalesh and another Vs. Messers United Grain and Fodder Agencies, PLD 1964 SC 97; Mst. Ghulam Sakina and 6 ors. Vs. Karim Baksh and 7 others, PLD 1970 Lahore and Abdul Motaleb Vs. Md.Ershad Ali and ors. I8BLD(AD)121; Md. Saiful Alam alias Masudul Alam Chowdhury, Vs. Bangladesh Bank and ors, I9BLD(AD) 249; Mr. A.S.F. Rahman and ors. Vs. Bangladesh Bank and ors, 20 BLD (AD)32; M.A. Khaleque Vs. Bangladesh Bank and ors, 5BLC(AD)85; Mrs. Khushi Akhtar Vs. Bangladesh Bank & ors. 5 MLR(AD)44—Cited.
Section—115(1)
Revisional jurisdiction
This court is always in favour of supporting a discretion exercised by a Court subordinate to it unless it can be shown that the discretion has been exercised arbitrarily and perversely and cannot be supported by reason.
Matasim Ali Chowdhury Vs Md. Ismail, 21 BLD (HCD) 216.
Section—115(1)
A reading of the provisions embodied in section 115 of the Code makes it manifestly clear that error of law resulting in an error in the any decision is not the only ground for interference. In order to invoke this Courts revisional jurisdiction there must be a failure of justice.
Matasim Ali Chowdhury Vs Md. Ismail, 21 BLD (HCD) 216.
Sections—115(1) and 151
Section 115(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 115 of the Code should not be confused with section 151 thereof.
Md Raziur Rahman Chowdhury Vs Bangladesh and others, 20 BLD (AD) 276.
Section—115(1)
The High Court Division found that the lower appellate court fully considered the oral and documentary evidence of the parties, believed the plaintiff’s case and came to a finding that the defendants illegally dispossessed the plaintiffs from the suit lands on 29.1.1970 and as such the suit was filed within time. The difference between the judgments of the trial Court and the lower appellate Court being one of appreciation of evidence, the High Court Division had little scope to interfere with the findings of the final Court of facts based on evidence.
Haidernessa Vs. Monowara Begum, 16 BLD (AD) 280.
Section—115(1)
Consolidation of suits for analogous trial
There is no specific provision in the Code of Civil Procedure for consolidation of suits for analogous trial. This power is derived from section 151 of the Code of Civil Procedure and is exercised in the interest of justice to avoid multiplicity of litigations. The Court may consolidate suits for analogous trial in appropriate case when these are between the same parties and matters in issue are substantially and directly the same.
Abdul Wahab and others Vs Md. Jahur Ali, 17 BLD (HCD) 377.
Section—115(1)
When a case is decided by any Court subordinate to the High Court Division and against that decision no appeal lies, the High Court Division has power in an appropriate case to interfere with the decision of the subordinate Court in exercise of its revisional jurisdiction. In the instant case the impugned order was passed by the District Judge in a non-judicial matter in his administrative capacity and not as a Court, in the circumstance, the High Court Division has no jurisdiction to interfere with the decision of the District Judge exercising administrative power.
M/s. Globe Metal Industries Sramik Union Multipurpose Co-operative Society Ltd. Vs. Ashraf Au and ors, 16 BLD (HCD) 585.
Section—115(1)
Concurrent findings of facts
Concurrent findings of facts arrived at by the trial court and the appellate Court on appreciation of evidence are immune from attack in revision. But when these findings are found to be the products’ of misreading and non-reading of the material evidence and misconstruction of an important document, a case of interference is made out.
Shamsuddin Ahmed Vs. Dalil Patan and others, 17 BLD (HCD) 556.
Section—115 (1)
Concurrent findings of fact
In the face of the concurrent findings by the trial court as well as by the appellate Court that the plaintiff had no possession in the suit land and that without a prayer for khas possession the suit as framed was not maintainable, the High Court Division acted beyond its jurisdiction exercising power under section 115(1) of the Code in setting aside the said concurrent findings of facts and sending back the case on remand to the trial court without reversing the material findings of the Courts below with reference to the evidence on record.
Rupe Jahan Begum and others Vs Lutfe Ali Chowdhury and others 17 BLD (AD) 67.
Ref: (1854) 6 M.I.A. 53; 34 DLR (AD) 61; (1915) L.R. 42 l.A. 202; (1886) L.R. 13 l.A. 160; (1898) L.R. 26 I.A.38; (1974) 2 SCR 90; (1932) 59 l.A. (PC)I;—Cited.
Section—141
The provision of Section 141 C.P.C. is applicable to a proceeding under Section 96 of the State Acquisition and Tenancy Act, 1950, although It is not a suit proper.
Shanti Ranjan Baroi and another Vs. Sri Jogesh Baroi and another, 14 BLD (HCD) 121.
Sections—141 and 144
Proceedings mentioned in section 141 C. P. C. refer to original cases in the nature of suits, such as a probate case, a guardianship case and the like and not the other cases which do not originate in themselves but arise out of suits or other proceedings. A proceeding under section 144 C.P.C. is not an original proceeding and as such procedures in regard to suits are not applicable to it.
Ibrahim Munshi and others Vs. Tamizuddin Bhuiyan, 14 BLD (HCD) 527.
Ref: AIR 1965 (SC)1477; 17 All 106 (P. C)—Cited.
Section—141
If a pre-emptee is not a co-share at the time of transfer or at the time of institution of pre-emption proceeding and if he becomes a co sharer during pendency of pre-emption proceeding whether he becomes a transferee to a co-sharer — The procedure provided in the C.P.C. in regard to suits, whether shall be followed in all proceedings in any Court of civil jurisdiction.
If a pre-emptee is not a co-sharer at the time of transfer or at the time of the institution of pre-emption proceeding and if he becomes a co-sharer in the case holding during the pendency of the pre-emption, he does not become a transferee to a co-sharer either at the time of transfer or at the time of institution of the pre-emption proceeding.
The procedure provided in the C.P.C. in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
Abdul Baten Vs. Abdul Latif Sheikh and others 13 BLD (AD) 56.
Ref: ILR 44Cal .47; 1 9DLR(SC)36-Cited
Section—144
Where dispossession of suit properties was not on the basis of any decree which has been varied or altered but on the basis of a notice subsequently found to be illegal, section 144 of the Code is not attracted. In such a situation, inherent right of the court in section 151 of the Code may be applied to make such order as would enable it to do effective and complete justice between the parties. In the circumstances of the case, the High Court Division committed no illegality in directing restitution of the suit property.
Military Estate Officer, Dhaka Cantonment, Dhaka and another v. Sk. mohammad ali and others, 22 BLD (AD) 113.
Section—144
It provides that once a decree is varied or reversed, the court of the first instance shall on the application of any party entitled to any benefit by way of restitution or is otherwise entitled to possession, restore the party to such position. This being the mandate of law, the High Court Division was wrong in refusing restitution of possession to the appellant by ordering analogous trial of the Miscellaneous Case under section 144 C.P.C. with title the original suit. The grant of restitution is not discretionary with the court but it is obligatory for ensuring that the party who got the benefit of a decree which has subsequently been varied of reversed is made to restore it to the other party entitled to the benefit the varied or reversed decree.
Mrs. Shahana Hossain Vs. A.K.M. Asaduzzaman, 15 BLD (AD) 167.
Section—148
Where any period is fixed or granted by the Court for doing any act prescribed or allowed by this Code, the Court may, in its discretion from time to time, enlarge such period even though the period originally fixed or granted may have expired.
Mosammat Wajeda Khatun v. Mosammat Saonatun Bewa, 22 BLD (HCD) 560.
Ref: Rafiqul Islam and another v. Abul Kalam and Others, 42 D.L.R. 19.
Section—149
Power to make up deficiency of court-fees
For setting aside a part of the decree the Court should always allow the plaintiffs an opportunity to pay the advalorem Court fee if they desired to have the benefit of that part of the decree also. In the instant case, even if the setting aside part was not there, the plaintiffs’ relief would be complete with the declaratory part only inasmuch as they were not parties to the suit in which the impugned decree was passed.
Md. limed Ali and another Vs Mst. Hamida Khatoon and another, 18 BLD (AD) 213.
Section—151
Powers under section 151 of the Code cannot be exercised when there is an alternative remedy available to the party seeking relief or when there is a specific provision of law under the Code is available for giving relief to the party aggrieved.
Sobour Ali Mondal Vs Md. Bhulor Au and others, 20 BLD (HCD) 276.
Ref: Azizur Rahman Vs. Janata Bank, 28 DLR (1976) 252; Punjab Ali Pramanik and ors Vs. Mond. Mokarram Hossain, 29 DLR (SC) 185; Rajendra Shairail Vs. Mahadev, (1975) 27 DLR 232; 38 DLR 231; 39 DLR68; 1 BLD 397—relied.
Section—151
A court has inherent power to recall orders obtained by practicing fraud on it, at the instance of a party to the proceedings and there is no execution of the court being functus officio. A party cannot be allowed to take advantage of its wrong and fraud vitiates everything. The court always preserves its inherent powers to set at naught any illegality committed by it.
M. Majid Vs Iqbal Bahar Chowdhury and others, 20 BLD (HCD) 285.
Ref: AIR 1 985(SC) 111; 1 998BLD (AD) 121; 30 DLR (SC) 221; 43 DLR 207; 44 DLR 582; 31 DLR 108; 1998 BLD 318; AIR 1977 (SC) 1969; AIR 1991 (AP) 191; 1968 SCD 274 —Cited.
Section—151 and Or. I Rule 13
As a general rule the powers of Court under section 151 are not to be invoked where specific provision in the Code covers a particular case or there is alternative remedy. But the Civil Court has ample reserve of its inherent powers to do what meet the ends of justice when fraud is committed on the Court itself. A Court commits an error of law in refusing to entertain an application for setting aside ex-parte decree.
The question for decision before the Court was, “is the Civil Court so powerless that in exercise of application for setting aside an ex-parte decree which is alleged to obtained have been on practicing fraud upon the Court itself.” Parties before the Appellate Division lodged Civil petitions for leave to appeal Nos. 327 and 331 of 1991 which have been dismissed onl2.3.92 and the case has already been reported in (1992) I2BLD (AD) 245.
It is fairly established that in cases of fraud upon the Court, the Court may exercise its inherent powers to set things right even though there are alternative remedies open.
Mrs. Shahrbanoo and Another Vs. Mrs. Lailun Nahar Ershad & others 13 BLD (HCD) 1.
Ref: Abdul Aziz Vs. Abani Mohan, 30 DLR(SC) 211; Mofazzal Molla and another Vs. Sarat Chandra and others 31 DLR (HCD)109 Mozaffar Ahmed and others Vs.Moulavi Saleh Ahmed and others 40 DLR (HCD)239; Baidyanath Dubey Vs. Dernanda Singh 1968 SCD275—Cited.
Section—151
The Court of appeal being the last Court of fact, it is difficult to interfere with the finding of fact arrived by the last Court of fact.
Chairman, Madaripur Pourasahava Vs. Abdul Mannan Khan being dead his heirs Majibar Rahiiwn @ Babul and others, 13 BLD (HCD) 5.</