Practice and Procedure
In a suit for specific performance of contract the genuineness of the agreement of sale is the prime consideration.
Govt, of Bangladesh Vs. Mrs. Noorjahan Khan & Ors. 8BLT (AD)-1.
Practice and Procedure
Principles—determination of benami transaction—It is true that intention or motive to create a benami transaction is also an important relevant fact for deciding the question who is the real owner of the property where the same real been claimed to be a benami one, but that does not mean that intention or motive should receive the only consideration by a court of law for deciding the nature of the alleged transaction.
Bina Rani & Anr. Vs. Shamtosh Ch. Dey 8 BLT (AD)-9.
Practice and Procedure
Distinction between a case under order 7 Rule 11 of the Code of Civil Procedure and a case under Article 3-1(5) of the Bangladesh Shilpa Rin Sangstah Order 1972.
Article 34 of P.O. No.
128 of 1972 is an independent substantive and procedural provision regarding bar of entertainment of a suti on grounds different from those described in order VII. Rule 11 C.P.C. Article 34 (5) specifically lays down that if the prayers in the suit are of the description contained in Article 34 (5)(a)(i) or (ii) or (iii) then the suit will not be entertained. In an ordinary civil surt the plaint is rejected, inter alia, where the suit appears from the statement in the plaint to be barred by any law”. Therefore in an application under Order VII Rule 1 1 C.P.C. the statement in the plaint has to be looked into to determine if the suit is barred by any law. But under Article 34(5) it is not the statement in the plaint but the reliefs claimed in the suit under Artilce 3495) (a) (i) or (ii) of (iii) which will determine whether the suit is entertainable or not. Under Order VII Rule 11 C.P.C. it is the statement in the plaint which is the determining factor, but under Article 34(5) it is the relief claimed which is the determining factor.
Bangladesh Shilpa Rin Sangsta Vs. Rahman Textile Millis Ltd. & Ors 8 BLT(AD)-55.
Practice and Procedure
House rent control case —High Court Division rejected the application on the finding that mere fifing of hajira on the date of hearing without examining the tenant himself it can be held that the rent controller acted illegally in passing the impugned order in that there was nothing on record to show that the tenant filed hajira of other witnesses and application for time to bring witnesses and that no summons for production of the witnesses was obtained—Held: The finding given by the learned Single Judge in rejecting the revisional application summarily are all findings of fact and this Division hardly interfere with such findings.
Abdus Salam Chowdhury Vs. Amanullah 8BLT (AD)-54
Practice and Procedure
Partial abatement— The instant suit is one for declaration of title and confirmation of possession in respect of several plaintiffs interests the extent of which is ascertainable. On the demise of one of such plaintiffs if no substitution is made the suit may abate not as a whole but as against the heirs of the deceased plaintiffs. It is only when the interest of the plaintiff is indivisible that a suit abates as a whole not being sustainable with respect to the rest of the plaintiffs.
Abdul Kader Mondal & Ors. Vs. Md. Shamsur Rahman Chowdhury 8BLT (AD)-82
Practice and Procedure
Case for recounting of votes —The order of recounting of votes was passed by the Election Tribunal legally on the allegation of counting of invalied votes in view of the difference between the votes in view of the difference between the votes secured by the petitioner and respondent No. 2 Vis-a-vis the different number of invalied votes shown in the consolidated result sheets. Ext.1 and Ext. Ka, in order to remove the confusion created by the said Exts. True, that no objection regarding counting of invaled votes was raised at the time of counting of votes. But omission or raise such objection is no bar to challenge the result of an election in an election petition as such objection gives rise to an
election dispute.
Khandker Rezaul Karim Vs. Md. Babul Hossain & Ors 8BLT(AD)-75
Practice and Procedure
The high powered committee cannot takeinto account extraneous matter or policy considerations while fixing tariff value as contended by the learned Counsel of the appellants.
Held: We hold that even though the Government fixes tariff value on the recommendation of a high powered advisory committee, the committee does not possess an unfettered, unlimited and absolutely arbitrary discretion in determining tariff value. It must follow aome guidelines which are germane to the Customs Act and not alien to it and should also pay heed to the recommendations of the Tariff commission when protective customs duty is involved. It is not necessary for the committee to invite all the importers and exporters of all imported and exported items to consider their papers and documents. The committee, as presently constituted, is representative enough to come to an objective decision. In coming to a decision in respect of each item the committee must have in its possession contemporaneous documents to how that the international market price of a particular item of import or export has either gone up or down during the interim period between the last meeting of the committee ant the impugned meeting—the guidelines followed by the committee as stated earlier are not extraneous and that those are germane to the Customs Act in determining tariff value.
M/S. Kamal Trading Vs. Commissioner of Customs & Ors. 8BLT(AD)-108
Practice and Procedure
The order is as follows
Held : The Order, as it
is, is a firm order without any scope tor extension of time. The expression, “ ^TOsp #r?rt ^Mi” is equivalent to stand dismissed.
Md. Sanaullah Khan Vs.
Safura Khatun & Ors 8BLT (AD)-107
Practice and Procedure
Pre-emption proceedings
— A learned single Judge of the High Court Division discharged the Ride on contest on the finding rightly that the application for recording abatement was rightly rejected by the lower appellate court holding that for nonOsubstilution of heirs, of non-contesting parties the pre-emption proceedings did not abate.
Md.Jalaluddin Ahmed & Ors. Vs. Delwar Hossain & Ors 8BLT (AD)-181
Practice and Procedure
Prayed for withdrawal — It appears that the accused persons in this case are all along absconding. And while they are still absconding the Government decided to withdraw from the prosecution which was allowed. It is now well settled that such withdrawal is subject to consent by the trial Judge and when the accused person are still absconding the discretion ought not to have been exercised by the Divisional Special Judge in the preset case.
Srimati Protiva Rani Dey (Tirtha) Vs. Dr. Mohammad Yousuf & Ors 8BLT(AD)-204
Practice and Procedure
The case was withdrawn on 31.01.2000. But before that there was full-Hedged enquiry by the Director General. non-NGO Affairs Bureau, submitted in 02.03.1999 (during the pendency of the writ petition) wherein the Bureau also recommended for withdrawal of the said writ petition. In the said report, the Bureau also found that no financial irregularity was committed. Thus no financial irregularity was committed. Thus on the merit of the case the withdrawal of the writ petition for non-prosecution could not be held to be irregular.
Noverlis Foundation for Sustainable Development Vs. R.K. Ruma & Ors 8 BLT(AD)-213.
Practice and Procedure
We hold that authority is not required to disclose its reasons in the order communication its decision to the person affected by the same. But in case the order is challenged before the court as arbitrary or discriminatory the authority must disclose the reasons would be struck down as arbitrary or discriminatory.
A. Rahim Chowdhury Vs. Bangladesh Bank & Ors 8BLT(AD)-280
Practice and Procedure
The Sheristadar is not a public officer and his function is not to declar law and to conduct the trial of case between litigants and is not invested with any authority to determine any cause or question in a court of judicature created by any Act or Stratute.The Sheristadar as such, did not possess any judicial power to grant any time to the defendants and also to set down the suit for ex parte hearing and all his orders and acts are absolutely without jurisdiction and the ex parte passed by the Sheristadar are also without jurisdiction.
Md. Abu ‘Zafar Miah Vs. Abdul Motaleb & Anr. 8BLT(HCD)-94
Practice and Procedure
Impoundment—Suit for revovery of khas possession —Held : I find that the forged documents were used in the trial court as evidence knowing them to be forged and a decree was successfully obtained by the plaintiff mainly basing upon those forged documents. It is the duty of all court to protect the sanctity of the due process of law. No body should be allowed to abuse the process of a court of law and to temper with the public justice system. That is documents which will appear to be suspicious to a court ol law. Section-195 read with Section-476 of the Code of Criminal Procedure have apply provided for taking care of such offenders who use any forged document as evidence in a court of law knowing them to be forged.
Md. Suruj Miah Vs. Alimuddin Bapari & Ors. 8BLT (HCD)-159
Practice and Procedure
Admiralty Jurisdiction—since this is an action in rem as well as in pesonam the plaintiff is entitled to recover he decreetal dues from the sale proceeds of the Defendant No. 1 vessel, and/or from the owners of the vessel and /or from the operating agents of the vessel being Defendant Nos. 2 and 3 who are directly liable to the plaintiff under the contract.
Volodymur Portnv Vs. M. V. Terpsichore & Ors. 8 BLT (HCD)-187.
Practice and Procedure
Election proceeding—petitioner who is not a party to the election proceeding may depose, if he so likes, on behalf of the opposite parity No. 2 there being no bar in such deposition.
Md. Nawshad Alam Vs. Md. Hedayel Ali Mondal & Ors. 8BLT (HCD)-219
Practice and Procedure
Contract of insurance is bases upon the concept of Uberrime Fidei i.e. of utmost good faith-the defendant took false pleas in. M.S. No. 145 of 1994 that five days after the occurrence of the fire the police waf obtained fraudulently, that there was no tire police in force when the fire occurred and that the transformer etc were not included in the clear note. Those pleas not included in the cover design to avoid to challenge the above facts proved and as was found by the trial court that the premium was paired in time and ‘accepted , that on receipt of the premium the defendant No. I issued the policies, then the fire occurred when the policy was in force, that the claim was made by the plaintiff at earliest possible time and that the loss was assessed through joint surveys held by the surveyors appointed by the defendant. In view of such facts, the defendant No. I cannot be held to have acted in good faith as obliged under the doctrine if Uberrimae Fidei.
Janta Insurance Company Ltd. Vs. M/S Islam Steel Mills Ltd. & Ors. 8 BLT (HCD)-311.
Practice and Procedure
Shares issues to Bangladesh Shilpa Bank against loan to the company having been returned by the Shilpa bank on receipt of the amount paid earlier to the company as loan the company had hardly any choice but to reduce the paid up share capital of the company —after return of the aforesaid shares by the Bangladesh Shilpa Bank cancellation of those shares and reduction of the paid up share capital of the company have been incumbent upon the company.
Uttara Himghar Ltd. 8 BLT(HCD)-331
Practice and Procedure
In case of contempt of court—intervenours is not supported by any law, rules, regulations, practice, procedure, tradition or convention of this court that before issuance of Rule a third party can file application for rejecting the application upon which the petitioner is praying for issuance of Ride. (Per Mr. Justie Md. Mozammel Hoque)
Mainul Hosen & Ors. Vs. Sheikh Hasina Wazed 8BLT (HCD)-410
Practice and Procedure
Interveners—in case of contempt of court, this Division can not motu take cognizance. Or any one can bring the incident of contempt as an information to the notice of this Division. On consideration of the information if it prima facie appears that there has occasioned a contempt of court, this Division may take cognizance upon such report. The interview of the Prime Minister was reported in media, both electronic and print, throughout the length and breath of the country on 17 July. 2000. The Appellate Division as well as this Division did not to take any notice of such statements. One month thereafter, three applications, one after another were filed by three sets of people. It seems to me filed one application was not thought sufficient to break the slumber of the judiciary. With the equal trust but in larger number other two applications were also tabled to reject the motions. In the absence of anv law or rule, and in the aforesaid facts and circumstances, we could not refuse to hear the interveners. (Per Mr. Justice Md. Abdur Rashid).
Mainul Hosen & Ors. Vs. Sheikh Hasina Wazed 8BLT (HCD)-410
General Observation
Now-a-days it is seen that whenever any party to a suit or proceeding presents an application either for emporary injunction of for an order oa attachment before judgment or for appointment of receiver or any other matter, the learned Judge of the Subbordinate judiciary does not record any posibity order either allovvingor rejecting the same which is require! to record. The procedure adopted by the learned Judge is highly disapproved.
Sirajul Islam chowdhury Trawlers Ltd. Vs. Sirajul Islam Chowdhury 8BLT (HCD)-136
Practice and Procedure
The filing of a suit for redemption of mortgage in a civil court is wholly different from filing of an application under P.O. 88 of 1972 before the Revenue authority.
Asmat Ali Vs. Abdur Rafique Mridha & Ors. 9 BLT(AD)-12.
Practice and Procedure
Plaintiff petitioner— having filed the suit challenging the solenama after 40/50 years the question as to whether he was minor at the time of filing the solenama in question is irrelevant as he did not file the suit within 3 years from the date of his attaining majority from his alleged minority.
Md. Moynuddin Torafdar & Ors. Vs. Tamijuddin Milky 9BLT (AD)-29.
Practice and Procedure
It appears from the judgment of High Court Division that on consideration of the evidence it found that the documents were not properly marked exhibits and taken into evidence and on such an evidence no decree can be passed.
Atul Gomez & Ors. Vs. Julian Rozario & Ors. 9BLT(AD)-31
Practice and Procedure
Admittedly the petitioner was retired from service under Martial law Order No. 9 of 1982
against which he filed review application and it appears that the petitioner was ultimately communicated the decision of the review committee. The High Court Division found that the Government had not taken a final decision in the light of the recommendation of the review forum and as such the review application filed is still pending cannot be accepted. The law on the point is clear. If the review authority find something to interfere with the decision passed under Martial Law Order No. 9 of 1982 then and then only the same may be recommended and not otherwise. There is nothing in the law to hold that the review authority is bound to intimate the petitioner of their decision.
Dr. Monoranjan Das Vs. Govt. of Bangladesh & Ors.9BLT (AD)-33
Practice and Procedure
There may be thousands of defects in the documents of the defence as well as their case but that does not entitle, the plaintiff to get a decree. The plaintiff is to prove his case irrespective of the defence version of the case and from the materials on record it appears that the plaintiff failed to prove genuineness of their documents and also their possession. This aspect of the matter escaped the notice of the High Court Division in the aforesaid Second appeal and in such circumstances the finding of the High Court Division is wrong and cannot be sustained.
Golzar Ali Pramanik Vs.
Yakub Ali Khan & Ors. 9 BLT(AD)-66.
Practice and Procedure
We have noticed that
respondent No. 1 University has already been in full commission on account of
assurances from the authority. Some 400 students have been prosecuting their
studies in the University. The said respondent has fulfilled most of the
conditions required under the Act. And the Grants Commission, as a matter of
fact, has also given their opinion in favour of according permission to
respondent No.1 Univeristy. Private Universities under similar conditions have
already been granted provisional permission and they have been functioning
under administrative orders of the Government. In the circumstances permission
in the nature of administrative order in respect of this university seems to be
a formality which should be forthcoming form the Government in no time in
accordance with the application dated 21 May 1995 and the law then in force and
in terms of the letter of the Grants Commission dated 14 October 1997.
Bangladesh & Ors.
Vs. Dhaka International University & Ors. (AD)-100.
Practice and Procedure
A liristi is no evidence
of the contents of the documents tiled.
Sri Chandan Mondal &
Ors. Vs. Md. Abdus Samad Talukder & Ors. 9 BLT (AD)-109
Practice and Procedure
Writ Petition
Writ petition is filed
under Sub-article (2) of Article 102 of the Constitution for a direction or for
declaring any Act or proceeding to be without lawful authority and of no legal
effect then the question of exhaustion of other equally efficacious remedy
arises. If any law provides for any remedy to any wrong done in respect of
anything in exercise of power under that law by creating a forum ordinarily
that remedy is to be availed of by the aggrieved person. Writ petition is an
extraordinary remedy provided by the High Court Division to an aggrieved person
when no other equally efficacious remedy is provided by law to him because
whenever there is a wrong done to a person he should have a remedy against the
same.
Bangladesh & Ors. Vs.
Mizanur Rahman 9 BLT (AD)-166
Practice and Procedure
Judicial mind —rejecting
the application for restoration of civil Revision ease which is dismissed for
default on 09.12.1998— Held: It appears that 09.12.1998 was the last working
day before the winter vacation. That apart the Rule was not ready for hearing
as the substitution petition was pending for disposal. Further, from the
impugned judgment of the learned Single Judge of the High Court Division it
appears that there was total non-application of judicial mind to those material
facts. Thus for ends of justice we feel that the civil revision ought to have
been restored.
Sheikh Suna Vs. Shah
Delwar Hussain & Ors. 9BLT (AD)-182
Practice and Procedure
In a title suit for
specific performance of contract initial onus is upon subsequent transferee to
prove that he had no knowledge of previous agreement for sale of the disputed
property and that he was a purchaser for valuable consideration without notice
as to previous agreement before the plaintiff and the vendor.
Md. Shahjahan Khan &
Ors. Vs. Abdul Latif Akan & Ors.9BLT (AD)-183.
Practice and Procedure
Secondary and Higher
Secondary Education Board, Rajshahi’s Rules and Regulations. On consideration
of the materials we find that there is no scope for extending the meaning of
the words “See” and “verify” used in regulation 80 to mean
“examine” the worth of the answer script.
SHSE Board, Rajshahi
& Anr. Vs. Arifur Rahman 9BLT (AD)-240
Practice and Procedure
As regards service of
notice the most competent parties are defendant Nos. 1-2 to dispute this
service of notice but they are not contesting the suit and it cannot now be
agitated from the mouth of defendant No. 4 that there was non-service of
notice. The High Court Division as well as the appellate court considered this
aspect; of the matter and came to the finding that there was service of
mandatory notice.
Md. Yeawar
Bakth Vs. Mahmudur Rab Chowdhury & Ors.9BLT (AD)-
161
Practice and Procedure
Pre-emption
case—question of defect of party—Held: We find that the petitioner did not
raise the question of the defect of party the trial and the land in which WAPDA
constructed the canal has not yet been finally acquired. We further find that
in spite of the canal running through the case plot the same has not been
legally divided.
Abdul Hafiz Chowdhury
Vs. Syed Abdur Rouf & Ors. 9BLT (AD)-270.
Practice and Procedure
The Acquisition and
Requisition of Immovable Provable Ordinance, 1982— legal consequence of
title—Held: The land in requisition do not confer title to the authority
concerned unless the same is acquired in accordance with law.
District Kanongo &
Ors. Vs. Md. Ali Ahmed 8 BLT(AD)-274.
Practice and Procedure
The loan advanced, out
of accumulated profit.
M/S Dacca Ware
House Ltd. Vs. Commissioner of
Taxes. 9BLT (HCD)-16
Practice of Procedure
It was the duty of
learned District Judge to decide the question of limitation at the first
hearing of the appeal and if a court felt that delay could not be condoned
proceeding of the appeal before him would have been stood buried at the initial
stage saving the parties from unnecessary harassment.
Deputy Commissioner
& Ors. Vs. Md. Aswab Ali & Ors. 9BLT(HCD)-12
Practice and Procedure
Alleged acquisition—it
is established statutory provision that there cannot be any acquisition of any
property without payment of compensation to the owner or persons concerned The
trial court appears to have rightly directed to maintain status quo till
payment of compensation of the lands ought to be acquired.
Govt. of Bangladesh &
Ors. Vs. Jakir Hossain Molla & Ors. 9BLT (HCD)-l
Practice and Procedure
Interest of justice
requires that the exists a good and harmounious relationship between a Judge
and an Advocate who when instructed in a case, becomes an officer of the court.
Both a
judge and an Advocate
are engaged serving the cause of and promoting justice. Together form a team.
The team spirit will be absent if their relationship is not founded upon mutual
respect, trust and confidence.
Bibhu Ranjan Das Vs.
Hakim Ali & Ors. 9BLT (HCD)-99
Practice of Procedure
Law is well settled that
an agent must be authorized by a person on whose behalf he is authorized to act
and that agentnama must be writing.
Hosne Ara Jalil Vs.
Abdur Rab & Ors. 9BLT(HCD)-81
Practice and Procedure
Vested Property
The settled law is that
a mere claim by the government that a certain properly is a vested property by
itself has no sanctity in the eye of law, unless such claim is substantiated by
cogent legal evidence. The onus of strict proof of such a claim lies squarely
on the Government.
ADC (Revenue) Vs. Arun Kumer Chakraborty & Ors. 9BLT
(HCD)-192
Practice and Procedure
Every judgment must be
read applicable to the particular facts proved or assumed to be proved. It is
neither desirable nor permissible to pick out a word or sentence under
consideration and treat it to be complete law declared by court. The Judgment
must be read as a whole and the observation from the judgment have to be
considered in the light of he question involved.
Md. Shafiqul Islam Vs.
Md. Imdadul Haque & Ors. 9BLT(HCD)-235
Practice and Procedure
Guidelines and policies
laid down in circular and memorandum issued by the Government and rules
incorporated in gevernment Manual have no statutory force and cannot be invoked
for claiming a legal right.
Nur Mohammad Vs.
Ministry of Education &Ors. 9BLT(HCD)-244
Practice and Procedure
Trade Mark cases—balance
of convenience — comparative strength — comparative strength must be looked
into on he basis of claims of the plaintiff made in the application for
injunction whether the use of the offending mark by the defendant is likely to
infringe of the Trade mark rights of the plaintiff.
M/S Hamja Rubber lndustries
Vs. Golam Dostogir Gazi 9BLT (HCD)-2880
Practice and Procedure
S.C.C. Suit —question to
be decided by the Court.
In a suit for eviction
of a monthly tenant the court is concerned with the only questions as to
whether a relationship of Ian lord and tanant exists between the contending
parties and whether the defendant is a defaulter or he has inducted sub-tenant
without the written permission of the landlord or the plaintiff bonailde
requires the suit premises for his own use and occupation. Essential repairs
and reconstructions may also provide a ground for eviction.
The question of title
cannot be gone into and decided in such a suit, it being outside the scope of
the S.C.C Act.
Sri Rajeswar Dhar & Anr
Vs. Srimati Anima Chowdhury & Ors. 9BLT (HCD)-332
Practice and Procedure
The Courts are always
alive to the paramount public interest, either in upholding the decision of the
Government even to the prejudice of an individual, or in case of striking it
down as arbitrary or unreasonable, the public interest element is always the
criteria for doing so. The Court all over the world in deciding an issue give
importance always to the overall interest of the people at large which
commensurate with the sense of social justice in a welfare state.
Bangladesh Soya Protein
Project Ltd. Vs. Ministry of Disaster Management & Relief 9BLT(HCD)-393
Practice and Procedure
When a plaint is amended
the suit is generally to be taken out from the list of pre-emptory hearing in
order to enable the defendant to file an additional written statements if any
they want. In this case, within 8 days of amendment of the plaint, of amendment
of the plaint, the suit was again posted for exparte disposal. This hurried
action of the trial court to dispose the suit without presence of the
petitioners does not appear to be bonafide.
Md. Habibur Rahman &
ors. Vs. M. A. Rashid & Ors. 9BLT (HCD)-444
Practice and Procedure
A Review
A review is by no means
an appeal in disguise whereby an erroneous decision is reheard and corrected. A
review lies where an error apparent on the face of the record exists. It is not
a re-hearing of the main appeal. Review is not intended to empower the Court to
correct a mistaken view of law. if any, taken in the main judgment. It is only
a clerical mistake or mistake apparent on the face of the record that can be
corrected by the leave but does not include the correction of any erroneous
view of law taken by the Court.
Secretary Ministry of
Finance Vs. Md.Masdar Hossain & Ors. 10BLT(AD)-67
Practice and Procedure
Clause 8(b) of the
deterioration of Stock Policy expression ‘action or suit’ A party who prepares
an instrument cannot be permitted to use ambiguous words in the hope that the
other side will understand them in a particular sense, and that will give them
a different sense. Here the police has been drafted by the insurer and
therefore the ambiguity or confusion by the uses of the expression’ action of
suit’ should be resolved in favour of the insured.
Chanla Marine Products
Ltd. Vs. Bangladesh General Insurance Co. Ltd. 10 BLT (AD)-81
Practice and Procedure
Whether the direction to
lease out the disputed land to the petitioners as a preferential claimants has
been done illegally.
Since a co-sharer of a
vested property has preferential claim to lease than the stranger, in the
instant ease, the petitioners having claimed right and title in the case land
and being admittedly in possession, we do not find any illegality in the
impugned judgment of the High Court Division.
Bangladesh & Ors. Vs.
Nidhi Ram Moni & Ors. 10 BLT(HCD)-97
Practice and Procedure
Law requires that’subsequent
change of terms and conditions of tender must be relayed to each and very
participants so that all the participants can avail of the equal opportunity
while participating in the tender. But in this case subsequent change of
conditions were kept secret to other participant. As a result of which
requirement of law are not met with and other participants were discriminated
and deprived of participation in the tender on equal terms.
ETV Ltd. & Anr. Vs.
Govt of Bangladesh & Ors. 10 BLT (AD)-108
Practice and Procedure
Due service
From the materials on record it is seen that
show cause notice with the statement of allegations was sent to the addresses
of the petitioner available in the record under registered post and that the
envelop having not been returned to the sender i. e. the Corporation the legal
presumption is that notices of the proceeding were duly served on the
petitioner.
Mobarak Ali Vs. BHBFC &
Anr. 10BLT (AD)-108
Practice and Procedure
A suit for damages and
compensation
In a suit for damages,
the plaintiff required to give specific instance of damages suffered by him. in
details and the exact loss caused to him for which the defendant is liable to
be called upon to answer his detnand.
Mr. Nazim Habibuzzaman
Vs. World Bank & Ors. 10 BLT(HCD)-11
Practice and Procedure
Conduct of the Police
towards the citizen of the land must be courteous. Policemen on many occasions
transgress the limits of law. sometimes with the support of the politicians in
power and public confidence on Police is shaken and citizens turn hostile to
Police. The position of Police as agents of law, the impartiality of the Police
and the Independence of Judiciary from arbitrary interference are the main
bulwarks of democratic way of life. The police should, therefore, develop a
professional view that their allegance is only to law and not to the letter of
law but to the spirit of law displaying an air of confidence in minds of the
citizens of the land.
Moni Begum @ Moni Vs. M.
Shamsur Rahman & Ors. 10 BLT (HCD)-70
Practice and Procedure
Satisfaction of the
detaining authority — Satisfaction of the detaining authority must be
subjective satisfaction, such satisfaction must satisfy or malafide which
condition the court shall look into to see that the order passed are free from infirmities.
Md. Azimul Kabir Vs.
Bangladesh & Ors. 10 BLT (HCD)-5
Practice and Procedure
The application filed by
the opposite parties No. 1-5 was not in accordance with law but I find that
there are sufficient substance in the said application to treat the said
application as one under Order 1 Rule 10 C.P.C. The court has ample power to
treat an application filed under Order I Rule 10 C.P.C. as an application under
Order 22 Rule 10 C.P.C It is now established that mentioning of a wrong
provision of law is no ground lor rejection ol the said application if the
substance of the application discloses all ingredients of passing order to the
said party.
Abu Taher Bhuiyan Vs.
Sri Lal Mohan Mondal & Ors. 10 BLT (HCD)-127
Practice and Procedure
It is for the legislatures
to enact laws to cater the needs of the people at large providing for rights
and remedies and obligations of the litigant public and a court Of law shall
only uphold those laws if necessary, by propounding and explaining the
provisions as and when necessary in given circumstances, but it cannot create
new right or remedy or give itself a jurisdiction which is not given in the Act
itself.
M/S Status Construction
Company Vs. Bangladesh. 10 BLT (HCD)-198
Practice and Procedure
The bank who is holding
the documents whether in its capacity as a collecting bank or a negotiating
bank must send the concerned documents to the L.C. issuing bank within the
period as stipulated in the L.C. and even if the L.C. is silent in respect of
the period of time, the bank must return those documents within reasonable time
which my be one week to 10 (ten) days at the most, depending on the
circumstances, but it cannot be more than that period.
National Bank Ltd. Vs
Habib Bank Ltd. 10 BLT (HCD)-246
Practice and Procedure
Extinguished—Halima
Bibi, even after execution Ext. Kha and Kha(l) in the year 1945, had her 2
annas share in the suit land but due adverse possession her title in respect of
2 annas share in the suit land has also been extinguished.
Md. Shamsuzzaman Vs. Abdul
Gani cv Ors. 10 BLT(HCD)-339
Practice and Procedure
Contradiction —needs be
removed
Final order arising out
of review application – the finding of the High Court Division in its judgment
and order dated August 5,200 2 to the effect “the suit is decreed” is
deleted and thereupon rest of judgment of the High Court Division is maintained
since no interference is called for to that.
Hafez Khan & Ors Vs.
Shamsul Haque & Ors. 11BLT (AD)-160
Practice and Procedure
Bangladesh Abandoned Properly (Control and Management and
Disposal) Order. 1972.
Subordinate legislation
cannot give retrospective effect unless authorised by the parent legislation.
In the instant case the new sub rule 4A of Rule 10 neither says that it will
have retrospective effect nor there is any authority from the parent law that
is the Bangladesh Abandoned Property (Control and Management and Disposal)
Order 1972 (President’s Order 16 of 1972) to make Rules with retrospective
effect. Therefore the auction sale having taken place .before the amendment of
Rule 10 by inserting sub rule 4A the sale would be governed by the law as it
existed-then which is sub-Rule 4 of Rule 10.
Bangladesh Vs. M/S
Rahimafroz Batteries Ltd. & Ors. 11 BLT(AD)-174
Practice and Procedure
Direction of the High Court
Division — selling aside
Appeal is disposed of
upon setting aside the direction of the High Court Division to allow the
respondent no. 2 to leave with the Respondent No. I as his wife made in the
Criminal Miscellaneous Case No. 4691 of 1997.
Mridul Baul Minto &
Ors Vs. Serajul Islam Babul & Ors. 11 BLT (AD)-162
Practice and Procedure
Miscarriage of Justice
It is now a settled
principle that even where provision for show cause notice and affording
opportunity of personal hearing are not available, the principle of natural
justice shall be applied unless it is specifically barred. In the instant ease
we have already observed that though the rule provides for show cause notice
with reasonable opportunity for defence, the same has been grossly violated
before taking penal action against petitioner . This violation according to us
amounts to a total miscarriage of justice.
Board of Intermediate
and Secondary Education & Ors. Vs. Md. Amir Hossain. 8 BLT (AD)-137.
Practice and Procedure
Legitimate expectations
— discretion of the deciding authority — National interset.
Mere approaching the
Government by the 30% shareholders of a particular Nationalized Industrial
Enterprise would not create a right or entitlement to have the enterprise
denationalized as because decision as regard denationalization! of a particular
nationalized industrial enterprise exclusively lies with the Government and
that such decision is olnly taken in the ‘national interest’ and as such even
on the establishment of 30% shareholdings of right Bangladeshi nationals of 30%
shareholdings of right Bangladeshi Nationals can not as of right claim
denationalization of the nationalized enterprise if government considers that
denationalization would be against ‘national interest.
Bangladesh Textile Mills
Vs N.A..Chowdhury & Ors. 11BLT(AD)-186
Practice and Procedure
It is a long established
law that a government entity cannot have double, standard nor can it be allowed
to pick and choose beyond the provisions of law as that would be discriminatory
and volatile of the equality clause of the constitution.
Motiur Rahman & Ors.
Vs. BADC. 8BLT (AD)-151
Practice and Procedure
In a suit for Permanent
Injuncition fundamental point is factum of possession and title can be gone
into incidentally in coming.to a just decision on possession.
Haji Md. Siddique Master
Vs. Samsul Haque & Ors. 11BLT(HCD)-14
Practice and Procedure
Benami Transaction
A deed cannot be
partially benami partially shwanami.
Ali Azam Vs. Mohammad
Majihullah. 11 BLT (HCD)-26
Practice and Procedure
Natural Justice
Plaintiff-Opposite Party
was appointed as Junior Assistant on 14.06.1974 and thereafter he was promoted
to senior Assistant by order dated 26.10.1977 with effect from 01.05.1977 and
he was then. Promoted to Sub-Accountant by order dated 29.10.1980 with effect
from 01.06.1980. Plaintiff-Opposite Party, thus served in the Bank for six
years and he was a confirmed employee of the Bank. In the interest of justice
the show cause notice was required to be issued by Bank Authority upon plaintiff-opposite
party and the principle of natural justice. Thus, appears to have been grossly
violated. Non-observance of natural Justice was itself prejudice to
plaintiff-opposite party.
Uttara Bank Limited Vs. Quazi Salaur Rahman & Ors. 11 BLT
(HCD)-95
Practice and Procedure
None examination of all
charge sheeted witnesses—prosecution is not bound .to examine all the witnesses
cited in charge sheet. It is no doubt true that prosecution in order to bring
home the charge against accused person is bound to produce witnesses who are
essential to the unfolding of narrative of witnesses prosecution case is based
but it cannot be laid down as a Rule that if there are large number of
witnesses in charge sheet, prosecution is bound to call and examine each and every
of those witnesses.
The State Vs. Md. Saidul
Huq 11BLT (HCD)-155
Practice and Procedure
A Court of law is to see
whether the concerned Authority considered the issue or not but it is always
for them to take the decision on the particular issue, a Court of law shall
never impose it own discretion over the concerned Authorities
and abdicate their functions. It
is for them and for them alone to take the decision and not for a Court of law.
An action of a authority can be challenged if they act without jurisdiction or
illegally or unreasonable, otherwise not.
Shaikh Jahangir Hossain
Vs. Government of Bangladesh & Ors. 11 BLT (HCD)-142
Practice and Procedure
It is rule of prudence
that whenever a court holds anything in a proceeding incompatible what it held
earlier must assign sufficient reasons for making the departure and holding
otherwise. When the Order attaches finality to the matter the Court becomes
functus Officio as the order is passed in so far that particular matter is
concerned and particular order in question becomes subject matter of the
Appellate or revisional Court.
Sufia Khatoon & Ors.
Vs. Mayor, Dhaka City Corporation 11BLT(HCD)-209
Practice and Procedure
The petitioners as
“Conscious Citizen: of the state know that mala fide cannot be pleaded in
a Writ of quo-vvarranto. Thus they have filed this petition for certiorati to
get a relief indirectly which they can not get directly. This is not
permissible in law. The malafides of the appointing authority or in other words
the motives of the appointing authority in making the appointment of particular
person are irrelevant in considering the question of issuing a writ a
Quo-warranto.
S.N. Goswami & Ors.
Vs. Govt. of Bagnladeshd Ors. 11 BLT(HCD)-213
Practice and Procedure
Right of Priority
Admittedly the present
plaintiffs or original plaintiffs never ever prayed for lease of the suit land.
Had they applied for lease on such ground of holding land contiguous to the
land leased out which is based on the right of priority, they might have enforced
such right against other claimants, in accordance with the rules. But in the
suit-brought they are not entitled to raise violation of the rules on such
rights.
Abdul Khaleque Vs. Akram
Hossain 11BLT (HCD)-470
Practice and Procedure
An injunction directed
to company is binding not only on it but also on all its directors,
share-holders and officers and employees since a company functions through
them. All of them are bound to obey the order of the Court, if it is within
their notice and knowledge, no matter whether they are personally impleaded or
not.
M. M. Hossain & Ors.
Vs. Saidur Rahman (Pvt.) Ltd. & Ors. 11 BLT(HCD)-349
Practice and Procedure
The whole purpose and
logic behind imposition of punishment in case of violation of an order of
injunction is in public interest in upholding the majesty of law and if the
Courts of law ignore or avoid its such responsibility and fail to so uphold,
anarchy would follow, the law will be its first victim and the people in
general would suffer most.
M. M. Hossain & Ors.
Vs. Saidur Rahman (Pvt.) Ltd. & Ors. 11 BLT(HCD)-349
Practice and Procedure
Every functionary of the
Republic is duty bound to work or function within the clear parameter of his or
her duties and obligations. Every body high and mighty may be must clearly
understand that he or she works under the parameters of law.
Iqbal Ahmed Chowdhury &
Ors. Vs. Board of Intermediate of Secondary Education, & Ors. 11 BLT
(HCD)-284.