Family Courts Ordinance, 1985

 

Family
Courts Ordinance, 1985

(XVIII OF
1985)

 

Section—3

Section 3 of
the Ordinance reads as follows:

Ordinance
to override other Laws -The provision of this Ordinance shall have effect notwithstanding
anything contained in any other law, for the time being in force.

Nirmal Kanti
Das Vs. Sreemati Biva Rani, 14 BLD (HCD)413

 

Section—5

Section 5 of
the Ordinance reads as follows:

Jurisdiction
of Family Courts-Subject to the provisions of the Muslim Family Laws Ordinance,
1961 (VIII of 1961) , a Family Court shall have exclusive jurisdiction to
entertain, try and dispose of any suit relating to, or arising out of, all or
any of the following matters, namely:

a. dissolution
of marriage;

b. restitution
of conjugal rights;

c. dower;

d. maintenance

e. guardianship
and custody of children.

From
the expression “other laws” used in Section 3 of the Ordinance, it appears that
the Family Courts Ordinance, 1985, controls the, Muslim Family Laws Ordinance,
1961, and not vice versa. Any person professing any faith has a right to bring
a suit for the pur. poses mentioned in Section 5 of the Family Courts
Ordinance. A Hindu wife is therefore entitled to bring a suit for maintenance
against her husband under the Family Courts 0rdinance.

Nirmal Kanti
Das Vs. Sreemati Bira Ranig, 14 BLD (HCD) 413.

 

Section—5

The
Family Courts have jurisdiction to entertain, try and dispose of any suit
relating to the matters mentioned in clauses (a) to (e) of Section 5 of the
Family Courts Ordinance only between litigants who are Muslims by faith.

Krishna Pada
Talukder alias Kajal Vs. Geetasree Talukder alias Baby, 14 BLD (HCD) 415.

Ref:
Attorney General Vs. Prince Ernest, 1957 A.C. 436—Cited.

 

Section—5

Limitation
Act, 1908, Article—120

The
Limitation Act does not specifically provide for any particular period of
limitation for filing suits by a Muslim wife for arrears of maintenance. The
Appellate Division held that residuary Article 120 of the First Schedule,
providing for a period of limitation of 6 years from the time when the right to
sue accrued in respect of a suit for which no period of limitation is provided
elsewhere in the First Schedule, will be applicable to a suit for maintenance
by a Muslim wife under the Family Courts Ordinance 1985.

Jamila
Khatun Vs. Rustom Ali, 16 BLD (AD) 61.

 

Section—5

Welfare of
Child

Plaintiff’s
suit was decreed upto the Appellate Division observing that the plaintiff was
entitled to take the twin sons in her custody. It is on record that the
plaintiff and the defendant are highly educated persons and they are
responsible government officers. From the judgment of the Appellate Division it
appears that the defendant-petitioner has got married again and as such the
welfare of the twin sons will not be protected in the hands of the step-mother.

Amirul Bor
Chowdhury Vs. Nargis Sultana, 19 BLD (HCD) 213.

Ref:
AIR 1959 (Mysore) 150; 17 DLR (WP) 119; 38 DLR(AD)106—Cited.

 

Section—5

Custody of
minor children

The
Family Court has the jurisdiction to decide the question of custody of the
minor children after determining their welfare, irrespective of any agreement
or any assurance reached between the contending parties. The paramount
consideration before the Court in deciding the question of custody of the minor
children is the ‘welfare and benefit’ of the minors.

Nargis
Sultana Vs Md. Aminul Bor, 18 BLD (HCD) 343.

Ref:
D. F. Mulla’s “Principles of Mahomedam law”; 42 DLR (AD) 234; 46 DLR (AD) 46;
46DLR(AD)148; 46 DLR (HCD) 307; A.I.R. 1982(SC)121; (1893) Chancery, 143; (1946)
9 Sud Park U.S.R.R. 4; A.I.R. 1928(Calcutta)600; 38 DLR (AD) 106—Cited.

 

Section—5

Maintenance
for Child

Even
if the children prefer to live with their mother due to natural affection or
attachment for her, that would not in any way affect the liability of the
father to maintain the children. If the father objects to the custody of the
children and wants to assert his own legal right, the proper course for the
father would be apply for their custody, but so long as the custody of the
children remains with the mother, he cannot on any plea refuse to pay
maintenance for the children.

Baziur
Rahman Sikder Vs Mrs. Tahera Begum, 18 BLD (HCD) 519.

Ref:
A.I.R.(29)1942 Madrass 705; PLD 1961 (W.P.)Lahore733—Cited.

 

Section—5

Jurisdiction
of the Family Court to award maintenance

Under
section 5 of the Family Courts Ordinance, 1985 not only the wife can file a
suit in a Family Court for her own maintenance but also she can claim
maintenance for her child. Children in easy circumstances under Mohammadan law
are bound to maintain their poor parents, although the latter may be able to
earn something for themselves. These poor parents may also file suits in the
Family Court for their maintenance from their opulent children. Similarly, poor
or disabled relatives, even servants of the wife, can maintain a suit for
maintenance under the Ordinance under circumstances enjoined by Mohammadan Law.

Jamila
Khatun Vs. Rustom Ali, 16 BLD (AD) 61.

Ref:
Mulla’s Principles of Mohammadan Law (18th Edition); Abdul Futte Moulvie Vs. Zabunnessa
Khatun, (1881) I.L.R. 6 (Cal) 631; Mst. Ghulam Fatima Vs. Sheikh Muhammad
Bashir, PLD 1958 (WP) (Lahore) 596; Baillie’s Digest at page 443; Hamilton’s
Translation of the Hedaya, at page 142; Sardar Muhammad Vs. Most. Nasima Bibi
and others. I9DLR (WP) 50: PLD 1966 (La- bore) 703; Sirajul Islam Vs. Helana
Begum and others, 48 DLR (HCD) 48; Muhammad Nawaz Vs.Mst. Khurshid Begum, PLD
1972 (SC) 302, at PP. 304-305; Ghulam Nabi Vs. Muhammad Asghar, PLD 1991 (SC)
443; Mohammadan Law, Volume 11(5th Edition) at page 404 by Syed Ameer Ali,
Kozhikoti Khadir Palliveetil Muhamed Haji Vs. Moideen Veettil Kalimabi, 4
I.L.R. ((Madras) 21 1; Tamizul Huq Vs. Shamsul Huq, 43DLR (AD) 34; Adnan Afzal
Vs. Sher Afzal, PLD 1969(SC) 187; Hamilton’s translation of the Hedaya, Volume
1, page 146; Volume II of Syed Ameer Ali’s Muhammadan Law, 5th Edition, page
427—Cited.

 

Sections—5
and 24

The
Family Courts Ordinance, 1985 applies to all citizens of Bangladesh
irrespective of their religious faith. If Section 24 is read with section 5 of
the Ordinance it will be evident that not only the Muslims but also the members
of other communities professing other religion come within the ambit of the
Ordinance and they are entitled to avail themselves of the forum of the Family
Court for speedy settlement of disputes regarding maintenance, guardianship,
custody of the children etc. and the Family Court has the exclusive
jurisdiction to try these matters.

Pachan Rissi
Das Vs. Khuku Rani Dasi, 17 BLD (HCD) 563.

 

Section—5(b)

Restitution
of conjugal rights

Restitution
of conjugal rights is a reciprocal right of both the husband and wife. It is
thus neither discriminatory nor violative of any of the provisions of the
Constitution.

The
view taken by a Single Judge of the High Court Division in the case of Khodeja
Begum and ors. Vs. Md. Sadeq Sarker, reported in 1 8BLD3 1 that no amount of
oral evidence is sufficient to prove the marriage unless the marriage is
attendant with a duly executed kabinnama or that restitution of conjugal rights
is violative of social justice and repugnant to Article 27 of the Constitution
is not a correct proposition of law.

Md. Chan Mia
Vs. Rupnahar, 18 BLD (HCD) 329.

 

Section—5(b)

Restitution
of Conjugal Right Mohammedan Law

Section—281

Suit for
restitution of Conjugal rights

Section
5(b) of the Family Court Ordinance, 1985 and section 281 of the Mohammadan Law
provides that where a wife without lawful cause ceases to cohabit with her
husband, the husband may sue the wife for restitution of conjugal rights. The
language used in both the sections of law is one and the same. The view taken
by a Single Judge of the High Court Division that “the law of restitution of
conjugal rights is void” while exercising power under section 115 of the Code,
cannot be endorsed to strike down a piece of legislation practiced over a long
period. The legitimacy or otherwise of a valid piece of legislation can only be
decided in writ jurisdiction under Article 102 of the Constitution.

Hosna Jahan
(Munna) Vs. Md. Shajahan (Shaju) and ors, 18 BLD (HCD) 321.

 

Section—6(1)(a)(b)

Institution
of suit

Every
suit under the Ordinance shall be instituted by the presentation of a plaint to
the Family Court within the local limits of whose jurisdiction the cause of
action has wholly or partly arisen or the parties reside or last resided
together.

Provided
that in a suit for dissolution of marriage, dower or maintenance, the Court
within the local limits of whose jurisdiction the wife ordinarily resides,
shall also have jurisdiction to try such a suit.

Mossammat
Jesmin Akhter and others Vs A S M Moniruzzaman , 21 BLD (HCD) 160.

 

Section—6(4)(g)

Code of
Civil Procedure, 1908, Order VII Rule 7

Per A.T.M.
Afzal, CJ:
The law requires that the relief must be specifically claimed
either simply or in the alternative. It is true that general or other relief
which the Court may think just may be granted although not specifically asked
for. But the essential conditions are that the averments in the plaint must
justify such relief and the defendant must get an opportunity to contest such
relief. In the name of granting general or other relief the court cannot and
would not mount any surprise on the defendant make liable for something which
does not arise out of the plaint and as such he had no occasion to answer the
same. This is merely an extension of the principle of natural justice.

The
defendant was admittedly absent at the hearing of the revision before the High
Court Division. The worst that could happen to him was that the Rule could have
been discharged for default or on merit and the appellate judgment and decree
would have been maintained in that case. But if the learned Judges entertained
some bright and innovative ideas about some verses of the Quran hitherto not
known for saddling the defendant with more liability than the plaintiff had
claimed and received, then was it not necessary and lot elementary that the
defendant ought to have been put on notice again? It was like enhancing the
sentence of an accused in exercise of revisional jurisdiction in a criminal case.
Could any tribunal do it without putting him on prior notice? This is exactly
what has been done by the High Court Division which to say the least, was
unfortunate.

Md. Hefzur
Rahman Vs. Shamsun Nahar Begum and another, 19 BLD (AD) 27.

 

Section—6(4)(g)
and 17

Code of
Civil Procedure, 1908, Section—115

Per Mustafa
Kamal, J:

Section 6(4)(g) of the Ordinance provides that the plaint shall contain inter
alia the relief which the plaintiff claims. An appeal lies under section 17 of
the Ordinance to the Court of District Judge. The High Court Division
interferes in revision under section 115 of the Code of Civil Procedure when
the lower appellate Court appears to have committed an error of law resulting
in an error in the decision occasioning failure of justice. In such a case the
High Court Division may make such order in the case as it thinks fit. The High
Court Division did not say in the impugned judgment that the lower appellate
Court committed any error of law on the point of maintenance. Giving the plaintiffs
a substantive relief beyond the frame of the suit is beyond the jurisdiction of
the revisional court and is a sad case of judicial excess defying all judicial
norms and trampling the judicial procedure.

Md. Hefzur
Rahman Vs. Shamsun Nahar Begum and another, 19 BLD (AD) 27.

 

Section—16(3)

In the
execution proceeding whether the subsequent execution against the judgment-
debtor is maintainable or not?

From
the materials on record it was found that on the own seeking of the petitioner
40 installments were granted but the petitioner did not pay a single
installment. The execution was started for one installment only in respect of
Tk. 13,000/- and odd whereas the total decree was for Tk. three lac and odd and
as such the entire decretal amount remained unpaid. As a matter of fact, the
execution was for one installment and there is no legal bar to proceeding with
the executing under section 16(3) of the Ordinance for the unpaid amount. The
entire amount having remained unpaid. there is no legal bar to proceeding with
the subsequent execution.

Md. Serajul
Islam Vs Maksuda Akhter (Navy) Advocate, 20 BLD (AD) 84.

 

Section—16(3B)

In
view of the provision of section 16(3B) of the Ordinance, a fresh and separate
cause of action will arise for failure to pay money of each and every
installment for the purpose of sending the judgment-debtor to imprisonment for
his failure to pay the money under each installment.

Maksuda
Aktar Vs Md Serajul Islam, 19 BLD (HCD) 466.

Ref:
1981 BCR 212; Karson Ranee Chawda, AIR 1958’99—Cited.

 

Section—16(5)

Enforcement
of decrees

Under
the general law the trial Court may allow payment of the installments even
after the passing of the decree under certain circumstances. Under sub-section
(5) of Section 16 of the Ordinance it is permissible for the Court to allow
installments even after the passing of the decree. The difference between the
general provisions and those provided in section 16(5) of the Ordinance is that
whereas under the former the power is hedged by certain conditions including
one of limitation. But under sub-section (5) of section 16 of the Ordinance
there is no such condition except that the power should be exercised by way of
proper judicial discretion. This power is wider under subsection (5) of section
16 of the Ordinance and it may be exercised either on the application of a
party or even suo motu so long as the decree remains unsatisfied. A Family
Court therefore has the power to allow installments as it deems fit even after
the passing of the decree.

Reshma
Sultana Vs Khaez Ahmed Mojumder, 17 BLD (AD) 72.

Ref:
A.I.R. 1921 (Patna) 340; A.I.R. 1932 Allahabad 273 (FB), A.I.R. 1943 Nagpur 340
(F.B); A.I.R. 1985 (Andhra Pradesh) 49;— Cited.

 

Section—20

Code of
Civil Procedure, 1908, Order XLI Rule 27

Section
20 of the Ordinance is a bar to the application of the Civil Procedure Code in
a Family Court proceeding with the exception of sections 10 and 11 under the
Family Courts Ordinance. The lower appellate Court cannot take evidence under
Order XLI Rule 27 of the Code as the provisions of appeal in the Family Courts
Ordinance do not provide for taking of evidence. Family Courts Ordinance being
a special law must be applied strictly. The appellate Court cannot also remand
the case to the trial Court as the Ordinance does not provide for any such
provision.

Saleha Begum
Vs Dilruba Begum, 21 BLD (HCD) 422.

 

Section—24

Guardians
and Wards Act, 1890, Sections—12 and 13

Since
the procedure under Order XLI Rule 27 is a bar under section 20 of the
Ordinance in a Family Court proceeding the only recourse left to the lower
appellate Court is to fall upon section 24 of the Ordinance to follow the
procedure laid down in Guardians Wards Act, while deciding the question of
guardianship and custody of a minor.

Saleha Begum
Vs Dilruba Be gum, 21 BLD (HCD) 422.

Ref:
Azad Alam Vs. Zinnat Khanam, 1 BLC(AD)24; Yusuf Ali Mamoonji Vs. Alibhoy, AIR
1925 Lahore 567 2 BLT31; 14 BLD 291—Cited.

 

FAMILY COURTS ORDINANCE, 1985

 

FAMILY COURTS ORDINANCE, 1985

 

Section—6(1)

Place of institution of
suit
—Within the local limits of whose jurisdiction the parties reside or
last resided together —Parties where reside or last resided together—can be
gone into at the time of trial of the suit if a proper issue is raised on the
point.

Abdul Matlib Gaznvi Vs.Toiyab Ali and others, 12 BLD (AD) 30 –

 

Section—17(1)

Appeal—Under
section 17(l) of the Family Courts Ordinance there is no scope for any
confusion that an appeal shall lie from a judgment, decree or order of a Family
Court to the Court of the District Judge’. The Court of the District Judge
being a civil Court, the provisions of the Code of Civil Procedure would apply
to the proceedings before the Court of the District Judge.

Md. Moinuddin Vs. Anna Khan Majlish, 10BLD (HCD) 404

Ref: 38 DLR (AD) I 72;—Cited.FOREST ACT, 1927(XVI OF 1927)

 

Section—20

Abatement of a legal
proceeding challenging validity of the notifications constituting reserved
forest known as Attia Forest
—There is no scope for challenging the validity
of notification of 1972 under the Forest Act (XVI of 1972) constituting
reserved forest after the promulgation of the Attia Forest (Protection)
Ordinance (XXXIII of 1982)- All judgments, decrees or orders in respect of
Attia Forest shall have no force and all suits, appeals and other legal
proceedings chal— lenging constitution of Attia Reserved Forest shall
abate-Independently of the Attia Forest (Protection) Ordinance, the
Notification of 1972 constituting reserved forest known as Attia Forest is
valid.

Bangladesh Vs. Abdul Baset Mia, 6 BLD (AD) 62.

 

Family Courts Ordinance, 1985

Family Courts Ordinance, 1985

Section-5

(a)
Family Courts have jurisdiction to entertaintiy and dispose of any suit
relating to the matters in clauses (a) to (e) section 5 of the Family Courts
Ordinance only between the litigants who are Muslims by the faith.

Krishnapada Talukder
Vs Geetasree Alias Baby 2BLT (HCD)-208

(b) The
preamble of a statute is not ordinarily on independent enactment able to confer
any right or to restrict or widen the enacting part which is clear and
unambiguous. Even the preamble is to be disregarded when there is conflict
between section and preamble and in that case express provisions of the section
are to be given full effect.

Krishnapada Talukder
Vs Geetasree Alias Baby 2BLT (HCD)-208

Section-5

Family
Courts Ordinance applies to all citizens irrespective of religion — “Subject
to” has not created any embargo in the jurisdiction of the Family Courts in
respect of cases and suits filed by citizens professing religion other than
Islam. But while deciding the cases of the subjects enumerated in section 5 it
is clear that Family Courts will follow the personal laws of those subjects.

Pachan Rishi Das Vs.
Khulai Rani Dasi 5BLT (HCD)-174

Section-5

Whether the Family Court
have jurisdiction to entertain the suit and to decide the question of validity
of the marriage between the parties which was denied by the defendant

Family
Court shall have exclusive jurisdiction to entertain, try and dispose of any
suit relating or arising out of restitution of conjugal right, dower,
maintenance etc. which would obviously include the determination of the
validity of a marriage as that is related to an inter-connected with the
question of determination of dower, maintenance etc. Any other interpretation
will be simply preposterous.

Md. Chan Mia Vs.
Rupnahar 6BLT (HCD)-92

Section-5

A
Subordinate Judge has got no jurisdiction to invoke any power under Section 151
of the Code in the proceedings of a title suit either to grant stay or injunction
in respect of a family suit of a Family Court.

Md. Shafiqul Haque
Vs. Mina Begum 10BLT (HCD)185

Section-5

The appellate court
below hold that the plaintiff got five bighas of land as dower and thereafter,
the money which was given to the defendant No.1 by selling five bighas of land
was money loan by the wife to the husband which cannot be treated as dower —
the family court cannot adjudicate upon the dispute.

Held:
The court of appeal below erred law in holding that the money given by the
plaintiff by selling 5 bighas of land to the defendant No.1 was not dower and
that the said money was loan. The court of appeal below in the premises, has
committed error of law in holding that the said dispute cannot be adjudicated
upon by the family court. I am of the view that the family Court has rightly
directed the defendant No.1 to give 5 bighas of land as dower.

Most. Rowshan Ara
Begum Chowdhury Vs. Tahera Noor Jahan & Ors. 10 BLT(HCD)-307

Section-5 read with Specific Relief Act, 1877
[I of 1877] Section-39

On
12.10.2000 opposite party No.1 instituted the family suit before the Family
Court for dower and maintenance. The petitioner has already appeared and filed
a written statement denying his marriage with her. He has got every opportunity
to challenge the ‘Kabinnama’ and the solemnization of the marriage on the very
same grounds on which he on 22.10.2000 filed Title suit No.296 of 2000 before a
Subordinate Judge. Family Court has got every jurisdiction to decide as to
whether the ‘Kabinnama’ in question is a genuine and valid document or not and
whether any marriage between the petitioner and Opposite Party No.1 was ever
solemnized or not before it decides to grant any decree for dower and /or
maintenance. In such a suit for a decree for dower and/or maintenance, no
declaration in respect of the ‘Kabinnama’ or cancellation of the ‘Kabinnama’ is
at all necessary. Family Court therefore cannot be expected to wait for the
final decision of a title suit on like issues as nobody can surely say when
such title suit would find the end of the tunnel. Moreover, it would be acting
to frustrate the very purpose of the Ordinance.

Md. Shafiqul Haque
Vs. Mina Begum 10 BLT (HCD)-185

Section- 17(1)(5)

Whether a decree
will be drawn up by the Family Court after the pronouncement of the judgement.

The
formal expression of a decision of a Civil Court is an order. The word ‘Order’
occurring in sub-sections 1 and 5 of section 17 may be said to include any
‘decision’ rendered by a court on a question between the parties of a proceeding
before the court. The “Decision” may be both interlocutory and final. The
decision rendered by the Family Court is final decision/judgement setting the
controversy and determining the rights of the pareties in the suit on
consideration of the facts, issues and legal aspect and the same is not an
interlocutory order-a decree will be drawn up by the Family Court after the
pronouncement of the judgement.

Ms. Farhat Rahman
Vs. Roomee Tarek Moudud 8BLT(HCD)-108

Section-5 (D) The Muslim Family Laws Ordinance,
1961 Section-9, Read with The Code of Criminal Procedure, 1898 Section-488

Past
maintenance — A wife can claim past maintenance for herself and for her
children for only 6 years prior to the filing of the suit.

From a
reading of the entire ordinance of 1985 it appears that the provisions thereof
are intended to provide for the establishment of Family Courts and for matters
connected therewith and are not intended to make provisions for modification or
amendment of Mohammedan law or any other substantive law. The Ordinance is
indeed procedural in nature.

Jamila Khatoon Vs.
Rastom Ali 4BLT(AD)97

Under
section 5 of Ordinance of 1985 the wife can claim past maintenance for the
child if she has been supporting the child in the same household without any contribution
from the father. But if she does not claim separate maintenance for the child,
the court will consider the overall needs, keeping in view the fact that she
has been supporting a child in the same household. In either case, the claim is
subject to Article 120 of the Limitation Act.

Jamila Khatoon Vs.
Rastom Ali 4BLT (AD)97

Section-20

The
affidavit of divorce is a public document and it requires no formal proof the
Appellate Court having the power of the original Court has rightly admitted the
said instrument of divorce and legally marked the same as Ext. A.

Sirajul Islam Vs.
Helena Begum & Ors. 3BLT (HCD)-40



Section-21

Attorney
in the instant case the defendant petitioner—the defendant petitioner is the
husband of the plaintiff-opposite-party and he is male and not a pardahnashin
lady and he cannot be represented by an authorised agent, here his brother in
whose favour the Power of Attorney has been made by him [defendant].

Md. Atiqur Rahaman
Vs. Ainunnahar 7BLT (HCD)-241

Financial Institution Act, 1993 Section-25(3)

We are
of the opinion that the embargo on banks, insurance companies and other
financial institutions to nominate its directors on the Board of a financial
institution is based on a reasonable classification. It appears to us to be obvious
that the legislative policy is to exclude the same set of persons to manage,
control, regulate and monopolize the policy making functions of capital
generating financial institutions. A textile manufacturing company is
generating goods and it may not be immoral from the point of view of financial
policy to allow the directors of such a company to be represented on the Board
of financial institution in which the textile manufacturing company may have a
shareholding interest. But it appears to be the police of the legislature that
directors of capital generating institutions should not be allowed to flock
together in a financial institution to control and monopolize the capital
market.

City Bank Ltd. Vs.
Bangladesh Bank & Ors 8BLT (AD)-20

Section-25(3)

Section
25(3) does not on terms make any distinction between directors who represent
their own shareholding individually and nominee directors who represent their
companies shareholdings. It applies to all, whether they are individuals or
nominees of a bank, insurance or financial institution.

Phoenix Leasing Ltd.
& Ors. Vs. Bangladesh Bank & Ors 8BLT (AD)-117

Section-25(3) and 48

Withdrawal of
exemption by Bangladesh Banks Notification dated 14.12.1996 is prospective and
not retrospective as contended by the petitioners learned Counsel

This
interpretation of the impugned notification dated 14.12.1996 is not acceptable
on the face of it. Section 25(3) of the said Act is a barring provision making
certain persons ineligible for being appointed as directors of a financial
institution. Until there is an exercise of power of exemption under section 48,
the bar remains as a permanent provision in the said Act. When an exemption is
given the bar under section 25(3) is relaxed: but when the exemption is withdrawn
the legal consequence is he revival of the permanent bar under section 25(30,
which will affect the existing nominee directors including petitioner Nos.2-5
The question of prospectively and retrospectively does not arise in these
circumstances. It is a case of certain section of an Act remaining in abeyance
as if in a state of hibernation because of an exemption granted and the revival
of it as soon as the exemption is withdrawn.

Phoenix Leasing Ltd.
& Ors. Vs. Bangladesh Bank & Ors 8BLT (AD)-117

Fire Insurance Policy Condition Nos 3, 13
& 19 Read with word “Action”

(a) The
plaintiff-respondent established a homeopathic laboratory and a fire insurance
policy was taken from defendant No. 1 (Sadharan Bima Corporation). covering the
risk of fire due to fire which arose out of short circuit of electricity the
laboratory of the plaintiff was turn to ashes.

Sadharan Bima
Corporation Vs Sanjit Kumar Das 2BLT (HCD)-101

(b)
There was no electricity connection in the room where the spirits were stored
but in other rooms the electricity connection for lighting the rooms was there
— since the plaintiffs house is adjacent to the laboratory and he is the owner
of both laboratory and house only for lighting purpose of the room of the
laboratory he extended the electricity to his laboratory room from his house —
no Misdescription about electricity connection.

Sadharan. Bima
Corporation Vs Sanjib Kumar Das 2BLT (HCD)-101

(c)
After filling up and submission of the proposal form for fire insurance the
officers of the defendant No.! (Sadharan Bima Corporation) inspected and
visited the area and the laboratory. The officers of the defendant No.1 had
given a favourable report and on the basis of the report of their officers, the
defendant No. I became satisfied and then issued fire insurance policy to the
plaintiff — now the defendant No. 1 cannot take a different view only to avoid
the payment of compensation to the plaintiff.

Sadharan Bima
Corporation Vs Sanjit Kumar Das 2BLT (HCD)-101

(d) The
condition No. 3 of the insurance Policy Ext. Uma which clearly shows that the
properties of S. B. Homeo Laboratory situated at 20/46, Zilla Parishad Super
Market, Court Road, Chittagong, was insured with the Green Delta Insurance
Company. But the present property of S. B. Homeopathic Laboratory is situated
of the village Kulkurmai, Police Station Rangunia — it appears that condition
No. 3 has not been in any way violated by the plaintiff.

Sadharan Bima
Corporation Vs Sanjib Kumar Das 2BLT (HCD)-101

(e) The
condition No. 19 of the Insurance Policy—the claim must be a subject matter of
any legal proceeding or arbitration within 12 months from the date of damage —
the word “action” in condition No. 19 will not only mean a suit or other legal
proceeding in court for recovery of the damage, but it will also mean and
include any legal action pending before the authority who is under legal
obligation to compensate the damage under the Insurance Policy condition Nos 13
and 19 are not contradictory or contrary, rather they are supplementary and complimentary
to each other in order to give an effective relief to the sufferer and the
aggrieved person — the present case is fully covered by condition No. 13 of the
Insurance Policy, as the “action” contemplated in condition No. 19 will mean
and include the action which was legally pending before the insurer for
decision as to whether and insurer would compensate the loss and damage of the
plaintiff — the claim of the plaintiff cannot be time barred in any manner —
appeal dismissed.

Sadharan Bima
Corporation Vs Sanjib Kumar Das 2BLT (HCD)-101

Fundamental Rules Rule-18

The
petitioner not being on foreign service his service conditions are controlled
by Rule-18. Admittedly the petitioner was absent from service for more than 11
years and Rule- 18 provides that a Government servant ceases to be a Government
employee after 5 years continuous absence from duty. From the words employed in
Rule 18 of the Fundamental Rules it seems to us that for taking action as has
been taken in the instant case no prior show cause necessary as Rule- 18 take
effect automatically on expiry of 5years continuous absence from service by a
Government employee, other than those who are on deputation on foreign service.

Sarder Borhan Uddin
Vs. Govt. of Bangladesh & Ors 8BLT(AD)-40.