Practice and Procedure
In the
present case, it was only during argument before the appellate Tribunal that
the question of defect of party was raised. It is true that a point of law can
be raised even at the appellate stage but it is important that if an objection
as to defect of party is taken it should be raised at the earliest opportunity
so that the appellant has opportunity to correct it.
Md. Ali Emdad Vs.
Labour Director & Ors. 7BLT (AD)-90
Practice and Procedure
Under
the High Court Rules a Single Judge has no jurisdiction to decide any question
affecting the interpretation of any provision of the Constitution.
Husna Jahan (Munna)
Vs. Md Shahjahan (Shajal) & Ors. 7BLT (AD)-98
Practice and Procedure
The
Civil Court could very well investigate into the matter with regard to its own
order and as such the Civil Court cannot direct the complainant to file the
petition of complaint before a Criminal Court.
Latifa Akhter &
Ors. Vs. The State & Anr. 7BLT (AD)-282
Practice and Procedure
Possession
in law is prima facie evidence of title.
Mohammad Azim &
Ors, Vs. Doly Islam & Ors. 7BLT (HCD)-164
Practice and Procedure
Reopened
the matter, decided earlier— Finality must attach to a decision rendered by a
court and the decision recorded by the said court can be set aside or reversed
not by the said court but by the superior court. The same court cannot sit on
appeal on its own decision.
Muzaffar Hossain Vs.
Md. Shahidullah & Ors. 7BLT (HCD)-208
Practice and Procedure
Right of
the litigant public—No litigant got a right to get his affairs settled in the
manner as he wishes. Every access to justice should not be Misused as a license
to an untenable application. The aims of law cannot be stretched to untenable
proceedings. If application of the present nature is allowed to go merrily and
unchecked there will be no end of laying applications and applications after
rejection and rejection of the applications and the litigant public will choose
to settle the controversy in the same court without availing the remedy
available by way of appeal and revision before the Higher Court. The law and
procedure cannot be allowed to be eroded at the sweet wishes of the litigant
public who attempts to get the controversy resolved in the manner he desires.
Muzaffar Hossain Vs.
Md. Shahidullah & Ors. 7BLT (HCD)-208
Practice and Procedure
Partition suit—An award decree is nothing more than a
preliminary decree as is usually made in a partition suit. Before an award
decree can be executed it is necessary to make it final by initiating necessary
proceedings.
Md. Mizanur Rahman
Khan & Anr. Vs. Mrs. Jinnatul Ferdous & Ors. 7BLT (HCD)-278
Practice and Procedure
The
court is not prevented from adopting the method for determining the amount of
compensation as per the existing Bank rate when the sum due to the plaintiff
was ascertainable by the court after hearing the parties.
Sonali Bank Vs. M/S.
Karnaphuli Works Ltd. 2BLT (AD)-78
Practice and Procedure
Ascertaining the
money compensation, damages etc.
It is
fairly settled that there must have to be tangible grounds and calculable
evidence for ascertaining money compensation etc. and it is the plaintiff who
has to provide these. The defendant has no obligation in that behalf.
Govt. of Bangladesh
& Anr Vs. Hosne Ara Begum 5BLT (AD)-271
Practice and Procedure
There is
no provision for filing cross petition for leave to appeal before the Appellate
Division of the Supreme Court.
Bangladesh Vs Subash
Chandra Das & Ors. 2BLT (AD)-30
Practice and Procedure
The
court fees paid cannot be returned because once used the court fees paid will
have no further use to the party.
Sultana Jute Mills
Ltd. Vs. Agrani Bank & Ors 2BLT (AD)-127
Practice and Procedure
(a) When
the fraud is detected and committed either upon the parties or upon the court
is a sufficient ground for Civil Court to invoke the provision of Section- 151
of the Code of Civil Procedure.
Mathura Mohan Pandit
Vs. Most. Hazera Khatun 2BLT (HCD)-215
(b) Once
a document is admitted into evidence its admissibility cannot be questioned in
any court at any stage of the same suit on the ground of insufficiency of
stamp.
Mathura Mohan Pandit
Vs. Most. Hazera Khatun 2BLT (HCD)-215
Practice and Procedure
Promotion
cannot be claimed as a matter of right under any law.
Colonel (Retd.) M.
H. Ali Vs. Bangladesh & Anr.3BLT (AD)-76
Practice and Procedure
It is a
distinctive norm on our court system that application for habeas corpus should
get top priority over all other business and be expeditiously disposed of.
Md. Shanieem Vs.
Govt. of Bangladesh & Ors. 3BLT (AD)-119
Legal recourse -should not exceed six months
Duty of
the government officials—wilful disobedience —Of course, we are aware of the
fact that after passing of a judgment by a court against government the
government may require some time to take decision as to whether it will prefer
any appeal or avail any other legal recourse against that judgment or whether that
judgment will be given effect to. But for taking this decision, an indefinite
period cannot be allowed. The Government must take this decision within a
reasonable period which may be 3 or 4 months but should not exceed six months.
The Failure or refusal of the government to implement or give effect to the
judgments and orders of the courts (even if these are declaratory in nature
like those of the present case) within this reasonable periods amounts to
wilful disobedience to or flouting of courts orders.
Wahidul Haque Vs.
Bangladesh & Ors. 10 BLT (HCD)-36
Practice and Procedure
Law on Pre-emption
It is a
fundamental principle of the law of pre-emption established for over a century
in the sub-continent, that the pre-emption cannot break up the bargain of sale
by suing only for a portion of the property conveyed by the sale which gave
rise to the pre-emptive claim.
Atiar Mm & Anr
Vs. Ms. M. K Chowdhury 4BLT (AD)-60
Practice and Procedure
Justice
should not only be done but should also been seen to have been done.
Md. Sultan Ahmed Vs.
Administrator of Wakf& Anr. 5BLT(AD)-83
Practice and Procedure
In Partition Suits
The
general rule that all the joint properties should be included in a suit for
partition is not an inflexible one. It can be relaxed and a partial partition
allowed, where it is not proved that the parties will be prejudiced or
inconvenienced by such partition.
Safaruddin & Ors
Vs. Faziul Huq & Ors. 5BLT (AD)-201
Practice and Procedure
It is
necessary to consider the whole evidence and then to assess the worth of the
witnesses as a whole.
State Vs. Abdul
Khaleque 5BLT (M3)-227
Practice and Procedure
It is
the settled Principle of Law that a litigant should not suffer for negligence
of the counsel or of a lawyer as on him the litigant has to depend. Therefore,
we cannot make a difference between the Government and a private party in
giving effect to the said Principle of Law.
A.D. C. (Rev) Vs.
Mohommad Khairullah & Anr.5BLT (HCD)-119
Practice and Procedure
When a
judgment is delivered by majority it is necessary to draw up an Order of the
Court specifying the particular orders passed by the learned majority Judges as
Order of the Court which is also signed by the learned Judge or Judges in the
minority. In the present case an Order of the Court has been drawn up to which
the learned minority Judge is also a signatory, but it has only been stated in
the Order of the Court that “in view of the majority judgment both the Rules
are made absolute and the application in Writ Petition No. 813 of 1993 is allowed.”
That order hardly makes any sense, because the writ petitioners did not succeed
on all the challenges on which Rules Nisi were issued.
Ministry of
Establishment Vs. Shafiuddin Ahmed& Ors. 6BLT (AD)-22
Practice and Procedure
In a
suit of Government Servants kind the Trial Court and the Appellate Court are
not required to sit in judgment over the findings of either the Enquiry Officer
or the punishing authority as no Court has jurisdiction to act as an appellate
authority sitting on appeal over the findings of a domestic tribunal. No Court
has the jurisdiction to substitute its own finding for that of the Enquiry
Officer or the punishing authority, as the case may be. The trial Court and the
appellate court cannot assume the role of a fresh fact-finding body over which
either the Enquiry Officer or the punishing authority has already made their respective
exercises in a domestic proceeding. We find with dismay that the trial court
while setting out the parameter of its enquiry stated in the very beginning
that if in this suit the plaintiff can prove satisfactorily that there was a
dacoity in the godown of TCB then it will be taken that he had not
misappropriated the milk food in question. That was a wrong approach adopted by
the trial court and to our regret the erroneous conception persisted upto the
High Court Division which ought to have known better. The simple issue in this
suit was whether the punishing authority had followed the procedure in
differing with the findings of the Enquiry Officer, whether it gave reasons for
differing with the findings of the Enquiry Officer, whether the plaintiff was
informed of the reasons and whether the plaintiff got a further opportunity to
meet the reasons given by the punishing authority.
Trading Corporation
of Bangladesh Vs. Kazi
Abdul Hye 6BLT (AD)-8
Practice and Procedure
That no
further oral evidence will be permitted in the retrial except as may be
necessary for proving any document.
Mohd. Eusoof Ors Vs.
Haji Golam Ban & Ors. 6BLT (AD)-89
Practice and Procedure
Law is
settled that it is the substance and not the form of the plaint which is to looked
and considered and mufussil court’s pleadings are to be construed liberally.
Zamiruddin Ahmed Vs.
Md. Ziaul Haq & Ors. 6BLT (HCD)-51
Practice and Procedure
Plaintiff
to prove his case—Plaintiff does not succeed on the weakness of the case of the
defendant but he must succeed on the merit of his own case.
Fozlur Rahman Vs.
Bangladesh 1BLT (HCD)-18
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. Shantosh Ch. Dey 8BLT(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 34(5) of the Bangladesh Shilpa Rin Sangstha Order 1972.
Article
34 of P.O. No. 128 of 1972 is an independent substantive and procedural
provision regarding bar of entertainment of a suit 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 suit 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 11 C.P.C. the statement in the plaint has
to be looked into to determine if the suit is baited by any law. But under
Article 34(5) it is not the statement in the plaint but the reliefs claimed in
the suit under Article 34(5) (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 Sangstha Vs. Rahman Textile Mills Lts. & Ors 8BLT (AD)-55
Practice and Procedure
House rent control
case —High
Court Division rejected the application on the finding that mere filing 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 8 BLT (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 invalid 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-à-vis the different
number of invalid votes shown in the consolidated result sheets, Ext, I and
Ext. Ka, in order to remove the confusion created by the said Exts. True, that
no objection regarding counting of invalid 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 8 BLT (AD)-75
Practice and Procedure
The high powered
committee cannot take into 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 some 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 and
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: “অদ্য হইতে ২০
(বিশ) দিনের মধ্যে খরচের উল্লেখিত ১০০০.০০ (এক হাজার) টাকা বিবাদী আপীলকারী পক্ষ বাদী
রেসপনডেন্ট পক্ষকে প্রদান করিবেন। অন্যথায় অত্র আপীল নামঞ্জুর বলিয়া গণ্য হইবে।”
Held :
The Order, as it is, is a firm order without any scope for extension of time,
The expression, “নামঞ্জুর বলিয়া
গণ্য হইবে” 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 Rule on
contest on the finding rightly that the application for recording abatement was
rightly rejected by the lower appellate court holding that for non-substitution
of heirs of non-contesting parties the pre-emption proceedings did not abate.
Md. Jalaluddin Ahmed
& Ors. Vs. Deiwar 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-fledged 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.
Novertis Foundation
for Sustainable Development Vs. R.K. Ruma & Ors 8BLT(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 declare 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 recovery 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. Nobody 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 appears to be suspicious to a court of
law. Section-l95 read with Section-476 of the Code of criminal Procedure have
amply 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. 8 BLT (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 party No. 2
there being no bar in such deposition.
Md Nawshad Alam Vs. Md. Hedayet 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. \45 of 1994 that five days after the
occurrence of the fire the police was obtained fraudulently, that there was no
fire 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. 1 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.
1 cannot be held to have acted in good faith as obliged under the doctrine if
Uberrimae Fidel.
Janata 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—
intervenors 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 Rule. (Per Mr. Justice 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
cannot motu take cognizance. Or anyone 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
breadth of the country on l7 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 any law
or rule, and in the aforesaid facts and circumstances, we could not refuse to
hear the intervenors. (Per Mr. Justice Md. Abdur Rashid).
Mainul Hosen &
Ors. Vs. Sheikh Hasina Wazed 8 BLT (HCD)-410
General Observation
Now-a-days
it is seen that whenever any party to a suit or proceeding presents an
application either for temporary injunction of for an order of attachment
before judgment or for appointment of receiver or any other matter, the learned
Judge of the Subordinate judiciary does not record any possibility order either
allowing or rejecting the same which is required 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. Tadin Milly 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. 9BLT (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 University. 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
firisti is no evidence of the contents of the documents filed.
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 case 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
Deiwar 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 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 Mahmudur Rub Chowdhury &
Ors. Vs. 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
9BLT(AD)-274
Practice and Procedure
The loan
advanced, out of accumulated profit.
MIS 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. A swab
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. 9 BLT (HCD)-1
Practice and Procedure
Interest
of justice requires that the exists a good and harmonious 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 they 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. 9 BLT
(HCD)-81
Practice and Procedure
Vested Property
The
settled law is that a mere claim by the government that a certain property 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 the 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 government 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 the 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 Rober Industries Vs. Golam Dostogir
Gazi 9BLT (HCD)-280
Practice and Procedure
S.C.C.
Suit —question to be decided by the count
In a
suit for eviction of a monthly tenant the court is concerned with the only
questions as to whether a relationship of landlord and tenant 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 bonafide 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 9 BLT (HCD)-393
Practice and Procedure
When a
plaint is amended the suit is generally to be taken out from the list of
preemptory 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. 10 BLT(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.
Chalna 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 case, 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. 10BLT97
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 avai1 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. 10 BLT
(AD)-105
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 demand.
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 allegiance 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 1 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 for rejection of 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 may 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(1) 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 & Ors.
10BLT(HCD)-339
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, 2002 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 Hague &
Ors. 11 BLT(AD)-160
Practice and Procedure
Bangladesh Abandoned Property (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 Rahimafrooz Batteries Ltd.
& Ors. 11 BLT (AD)-174
Practice and Procedure
Direction of the High Court Division — setting
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.1 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 case 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. 11 BLT (AD)-137
Practice and Procedure
Legitimate expectations — discretion of the
deciding authority — National interest.
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 only taken in the ‘national interest’ and
as such even on the establishment of 30% shareholdings of right Bangladeshi
nationals cannot 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. 11 BLT (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. BLT
(AD)-151
Practice and Procedure
In a
suit for Permanent Injunction 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. 11 BLT (HCD)-14
Practice and Procedure
Benami Transaction
A deed
cannot be partially benami partially shwanami.
Ali Azam Vs. Mohammad Majibullah. 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. 11BLT. (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 11 BLT (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 its 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. 11 BLT (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-warranto. Thus they have filed this petition for
certiorari to get a relief indirectly which they cannot 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
Bangladesh & 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 11 BLT
(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. Everybody 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
Practice and Procedure
The
revisional jurisdiction is not an inherent power of the Court but is a creature
of statute. If the Legislature fails to provide proper forum or confer
jurisdiction, a Court of law cannot create one for the litigants, however,
unsavory it sounds. It is always for the Legislature to make for any hiatus or
omission, to confer adequate power, to cloth a Court of law with proper
jurisdiction and to provide for remedies to the litigants, but a Court of law
shall never endeavour to do so, where there is none.
Gouranga Chandra Dey Vs. Deputy Commissioner
& Ors. 12 BLT (HCD)-75
Practice and Procedure
The
inaction or negligence of the plaintiffs cannot be considered as any special
circumstance to outweigh the right accrued to the other side or to take away
the valuable right accrued to the other side —relied on (1979) BSCR 135
Mirza Fashiul Alan, & Ors Vs. Sonali Bank
& Ors 12 BLT (HCD)233
Practice and Procedure
Case
under section 70 of the contract Act—The juristic basis of the obligation in
such a case is not founded upon any contract of tort but upon a third category
of law, namely, quasi contract or restitution.
A.K.M Shahidul Haque Vs. Deputy Commissioner
& Ors 12 BLT (HCD)236
Practice and Procedure
The
service of summons upon the parties is not the responsibility of the plaintiff
or the petitioners and they are not required to submit notices and requisites
timed without number, rather, it shows the inefficiency and in competency of
the concerned neared and its officials for effecting the service of notice upon
the opposite parties. Instead of asking the petitioner to submit the requisites
over and over again because of the failure of the process server to service the
notices, the learned Judge ought to have looked into the reasons for such
repeated non-service upon the opposite parties.
Md. Nurul Hoque and Ors Vs. Ali Ahmed &
Ors 12 BLT (HCD)250
Practice and Procedure
Fraud
vitiates everything. When a gift is found to be forged and fraudulent, it is
the duty of the court to get rid of such deed from the record.
Anowarul Azim & Ors. Vs Fatema Khatun
& Ors. 12 BLT (HCD)255
Practice and Procedure
Insufficiency
of evidence or that Court would have taken a different view on the basis of
evidence on record of Arbitration proceeding would not warrant any interference
with the Arbitration Award.
A. Latif and Company Limited Vs. The Project
Director & Ors 12 BLT (HCD) 311
Practice and Procedure
The
Arbitrator is the sole judge of the quality as well as quantity of evidence and
it will not be for the Court to take upon itself the task of being a Judge on
evidences before Arbitrator.
A. Latif and Company Limited Vs. The Project
Director & Ors 12 BLT (HCD) 311
Practice and Procedure
A party
after participating in Arbitration proceeding and by not raising any objection
to jurisdiction of Arbitrator to deal with Arbitration matter party waived his
right in putting forward any objection to jurisdiction of Arbitrator to
arbitrate the dispute and pass Award after the Award.
A. Latif and Company Limited Vs. The Project
Director & Or 12 BLT (HCD) 311
Practice and Procedure
A valid
title transferred by registered kabalas cannot be cancelled in absence of any
evidence that the same is fraudulent fabricated, without consideration and
obtained by practicing fraud.
Faziul Haque Bepari & Ors. Vs Abdul Mannan
Dewan & Ors 12 BLT (HCD) 339
Practice and Procedure
We find
from the evidence of P.W.1 that Sirajul and Aleya have been brought to his
house by one Foezuddin of Kashi Nagar disclosing their identify as husband and
wife but prosecution has not examined this Foezuddin and no explanation has
been given about non examination of this witness. He is a vital witness for the
prosecution to prove that he has introduced them as husband and wife to him.
P.W.12 states that though he has visited Serajul’s village and has found
Serajul’s relations there but he has not cited them as witness. There is
therefore no corroborative evidence to prove the prosecution version that when
the victim and Aleya have come to the informant’s house for working.
The State Vs. Md. Sirajul Islam 12 BLT (HCD)
328
Practice and Procedure
Law
on Limitation—It
appears that the vessel took its berth on 15th April, 1999 at the port at
Mongla and damaged cargo was discovered on or about 28th April, 1999 but the
contract was not rescinded invoking clause-14. Instead, opportunities were
given for segregation of the good cargo from the bad ones after dumping those
in the jetty and although it was so agreed to by the defendant nos.5 and 6 in
presence of the contesting defendants but ultimately they did not segregate the
cargo already dumped in the jetty, besides, a part of the cargo was still left
in the vessel also. The Final Discharge Report of the cargo was not delivered
by the captain of the ship in favour of the buyer, as envisaged under clause
11(b) of the contract, after completion of discharge of the cargo. Under the
circumstances, the instant suit is not barred by limitation.
Govt. of Bangladesh Vs. M.V. Vishwa Kaumudi
& Ors 12BLT(HCD)365
Practice and Procedure
Justice and expediency cannot go together.
Ashik Mia Vs. Bokshi Koysor Rashid & Ors
12 BLT (HCD)452
Practice and Procedure
Execution
of documents- Execution consists in signing a document written out and read
over and understood, and does not consist in merely signing a name upon a blank
sheet of paper. So that a document may be executed, it must be existence. Where
there is no document in existence, there can be no execution. A document
executed in blank in necessary particulars, namely, date and consideration
cannot be said to be in existence and if produced in Court as such that is
without date and consideration would have no legal effect. When such filling in
of said necessary gaps/blanks to make the documents complete is proved such
documents would be excluded from consideration by a Court of law.
BCCI Ltd. Vs. Bangladesh Electrical Industries
Ltd. & Ors. 12 BLT (HCD)502
Practice and Procedure
Stay further proceedings
Neither
the suit before the civil Court could be stayed pending decision of the suit
before the Artha Rin Adalat nor the other way round, the suit before the Artha
Rin Adalat could be stayed for the suit of the Civil Court.
Al Baraka Bank Vs. Rina Akin & Anr 12 BLT (HCD)517
Practice & Procedure
Burden of Proof
When
creating mortgage by deposit of the deeds is denied, the burden is on the bank
to prove that the plaintiff delivered the deeds with intent to create security.
Al Baraka Bank Vs. Rina Alam & Anr 12 BLT
(HCD)517
Practice & Procedure
In a
suit for specific performance of a contract, the parties to the contract are
the only proper and necessary parties.
Saroj Kanta Sarker & Ors Vs.
Seraj-ud-Dowla & Ors 12 BLT (HCD)28
Practice and Procedure
Joinder
of Charge —the
trial court framed the accusation and the charge under both Sections 363 of the
Penal Code and Section 4 of the Cruelty to Women (Deterrent Punishment) Ordinance,
1983 and the joinder of the charge under the Penal Code and also of the special
law —Held: We find that the accused has not been prejudiced as a result of the
charges framed against him.
Abdul Karim Vs. The State 13 BLT (AD) 26
Practice and Procedure
The
provision in chapter I in part II and the provision in chapter I in part V are
to be read independent of each other.
Mosharraf Hossain & Ors Vs LGRD & Ors
13 BLT (AD)45
Practice and Procedure
Respondent
ought to have pursued in respect of his claim of payment for the works executed
by him at the rate schedule of 1999 and not at the rate schedule of 1992 was
either the Civil Court.
PDB & Ors Vs Md.Asaduzzaman Sikder &
Org. 13 BLT(AD)58
Practice and Procedure
Put in the deficit Court fee
The
statutory period of 21 days for putting in deficit court fee is not mandatory
rather the same is directory in nature as no consequence is provided in the law
in case of failure to put in deficit court fee within statutory period of 21
days. The law has not curtail the power of the Court to extend time, in an
exceptional case, to deposit the deficit Court fee.
Begum Sultana Mazid & Ors. Vs. Syedul
Islam 13 BLT (AD)183
Practice & Procedure
Whether
Possession without title is itself a right
Possession
confers more than a personal right to be protected against wrongdoers. It
confers a qualified right to possess a right in the nature of property, which
is valid against everybody who cannot show a prior or better right. The law,
under such a circumstances, assists not only the possessor himself but also
those who stand in the place of the possessor by succession or transfer.
Md. Nurul Haque Vs Mst: Anowara Begum &
Ors 13 BLT (HCD)31
Whether
a trespasser’s Possession becomes adverse
A
trespassers possession becomes adverse only when the adverse nature of
trespasser’s claim entered into the knowledge of the true owner. Trespass,
literally means wrongful disturbance of another person’s possession of
immovable property by entering upon the premises in the possession of another or
remaining upon such premises.
Md. Nurul Haque Vs Mst: Anowara Begum &
Ors J3BLT(HCD)31
The
function of an enquiry officer or an enquiry committee is to find out the truth
or otherwise of the allegations or charges contained in the notice to
show-cause. They must confine themselves within the four corners of the notice
to show-cause containing the charges and is not permitted to travel beyond it.
Their function is to make their own findings on the charges but are not
permitted to make any recommendations and even if they do, it should be
ignored. It is the concerned authority who would take their own decision based
on the findings of the enquiry committee and not on its recommendations.
Kazi Farooque Ahmed Vs. National University
& Ors 13 BLT(HCD)181
In the
instant case, the notice to show- cause itself being defective and the failure
of the enquiry committee to give opportunity to the petitioner to be heard in
person went to the root of the proceedings which could not be cured in appeal.
Kazi Farooque Ahmed Vs. National University
& Ors 13 BLT(HCD)181
Practice & Procedure
Whether
act’s not amounting to dispossession
In a
case of acquiring title by adverse possession, the possessor has to remain in
an uninterrupted possession for the full period of 12 years. If the adverse
dispossession discontinued, for however short a time, before he completes his
title, his previous possession losses its value.
Md. Nurul Haque Vs Mst: Anowara Begum &
Ors 13 BLT (HCD)31
Whether bank has got right to refuse Payment
of a Letter of Credit
Once the
drafts and documents submitted for payment under a letter of credit are
accepted and the date of payment is communicated in case of a deferred credit,
and bulk of the proceed is already paid , the issuing bank has not no right to withhold
the payment notwithstanding the fact that the payment was not complete.
Standard Bank Limited Vs. Tripos Engineering
& Ors. 13 BLT (HCD)15
Interpretation
The
Court is definitely permitted to look at the definition of loan in the Ain when
the Bank Company act is silent on the definition of loan.
IFIC Bank Ltd. & Ors Vs. M/s. Beximco
Holding Ltd & Ors. 13 BLT (HCD)23
Practice and Procedure
Adverse Possession
It is
the settled principle of law that the plea of adverse possession must be specifically pleaded in the pleading
and proved by evidence.
Sultan Molla & Ors. Vs. Helaluddin
Howlader & Ors. 14 BLT (AD)66
Practice and Procedure
The
plaintiff in a suit is at liberty to value his suit both for territorial and
pecuniary jurisdiction but the Court under the Code of Civil Procedure has a
right to correct the plaintiffs valuation.
Md. Shamsul Haque Vs. Md. Salimullah & Ors
14BLT(AD)07
Practice and Procedure
The
property being declared as abandoned property the onus lay on the shoulder of
the petitioners to rebut the presumption of correctness in enlisting the
property as abandoned property.
Govt. of Bangladesh Vs. Dr. Md. Tofajjel
Hossain. 14BLT(AD)20
Practice and Procedure
It is
now a settled principle of law that in case of agreement for sale of immovable
property, time is not considered as essence of the contract.
Amir Hossain Vs. Md. Amir Ali and Anr
14BLT(AD)59
Practice and Procedure
The
materials on record show things which are highly deplorable and deprecatory.
The materials and the totality of the matter show how low the ethics and the
values of the highest educational institution have gone and this reflects the
prevailing situation in other arena also. The time by now is high to take
notice of the matter with all seriousness by the conscious section of the
society, otherwise in very near future person having respect for ethics and
values would choose to be away from the education institutions financed by the
State out of the tax payers money and by that the education institutions would
be happy home of the persons who have no respect for the ethics and values of
the profession.
University of Rajshahi. Vs. Md. Abdul Manna
Bhuiyan & Ors. 14 BLT (AD)115
Practice and Procedure
The High
Court Division did not consider as to whether the long possession of the
plaintiff amounts to adverse possession. The learned judge did not come to a
finding that the plaintiff asserted his hostile title and possessed the suit
land within knowledge of the true owner by denying his title. Moreover, the
property was enemy property when he purchased in 1985. The period of possession
cannot be twelve years to acquire any right by adverse possession. As the
property vested by operation law in the government in the year 1978, to claim
any right by adverse possession, the plaintiff is required to possess the suit
land for more than 60 years.
Dulal Chandra Das & Ors. Vs. Ratan Chandra
Sarker & Ors 14 BLT (AD)166
Practice & Procedure
A
contract does not become a statutory contract simply because a public
functionary entered into the contract unless a statute stipulates terms which
have been incorporated in the contract.
Ananda Builders Limited Vs. BIWTA & Ors.
14 BLT (AD)190
Practice & Procedure
Principle
of nature justice – involving moral turpitude -Held: Suffice it to say an
appointment of a public servant to a particular post is not indefeasible or in
other words appointment of a particular public servant is not immune from
cancellation in case of his being unworthy of having the particular appointment
in the background of the facts brought before the authority and found to be
genuine or remained unrebutted, as in the instant case.
Govt. of Bangladesh & Ors. Vs. Kamrul
Hasan 14 BLT (AD)208
Practice and Procedure
The High
Court Division it appears held that since the appeal of the present respondents
are pending before the Honorable Chief Justice there was no other court in
which the plaintiffs could present their plaint for relief – Held: This view of
the High Court Division was totally wrong.
Supreme Court of Bangladesh & Ors. Vs.
Afroza Begum & Ors 14 BLT (AD)213
Practice and Procedure
Gender
equality- merely by enacting legal. provisions, gender equality cannot be
achieved. The attitude of the society as a whole, has to be changed towards
such an idea. We only feel sad to observe that the attitude in this regard all
over the globe is rather laconic and the difference in outlook from country to
country is only of degree. Instead of jurisprudential maneuvers, a social
revolution is required to change such a myopic attitude. After all, a Court of
law cannot effect social reforms, it can only uphold such changes or reforms
which had already taken place.
Shamima Sultana & Ors. Vs Bangladesh &
Ors, 14 BLT (HCD)33
Practice and Procedure
Constitution
of Bangladesh–
the ingrained spirit of the Constitution is its intrinsic power. It is its
soul. The Constitution of a country is its source of power. It is invaluable
with its such soul. It strives a nation to move forward. But if the said spirit
is lost, the Constitution becomes a mere stale and hollow instrument without
its such life and force. It becomes a dead letter. The United Kingdom, although
does not have any written Constitution but has got the spirit of the
Constitution and that is why the people of that country can feel proud of their
democracy but there are countries with Constitutions, written and amended many
a times but without the said spirit, the democracy remains a mirage.
Shamima Sultana & Ors. Vs Bangladesh &
Ors. 14 BLT (HCD)33
Practice and Procedure
Benefit out of illegal Order
The
order of dismissal passed in the Execution Case No.26 of 1966, was admittedly
passed at a time when there was an order of stay in force on the execution
proceeding and as such, the order of dismissal was passed in utter violation of
law and exfacie illegal and the Opposite Party is not entitled to reap any
benefit out of the said illegal order. Since it was not a judicial order, yield
no result.
Syed Rashid Ahmed Vs Idrish Ullah and Ors.
14BLT(HCD)147
Practice and procedure
If the
court wants to declare the disputed kabala illegal and void, it is to be
decided as to whether the suit land is identical with land of disputed kabalas.
In order to declare the title of the plaintiff and to give him khas possession,
it is to be decided first as to whether the suit land and the purchased land of
plaintiff is identical or not.
M. Matiullah Khondaker Vs. Md. Yousuf Shikder
& Ors 14 BLT (HCD)375
Practice and Procedure
The
affidavit filed by the learned member of the bar should not be totally ignored
or lightly brushed aside by the court but should consider the statements made
in such affidavit for a correct adjudication of the issue involved in the suit
or in the appeal.
Most. Jiranbibi Vs. Safiuddin Mondal & Ors
14 BLT (HCD)461
Practice and Procedure
The
petitioners in these two writ petitions, have denied that they are defaulting
borrowers within the meaning of section. 5 (Ga Ga) of the Bank Companies Act
and as such the denial of their liability on construction of such legal
provision cannot constitute any disputed question of fact.
Md. Mostafa Kamal & Ors Vs. Bangladesh
Bank & Ors 14 BLT (HCD)492
Practice and Procedure
The
trial Court held that by the deeds dated October 27, 1969 Jatindra Mahon Roy
did not alienate his interest in the land in suit in favour of Ali Ahmed
Khandker and Wali Mohammad Siddiqui. It is seen from the judgment of the trial
Court that in making the said finding the said Court placed reliance on the
report of the Hand Writing Expert (Ext. 10). It may be mentioned Hand Writing
Expert was not examined by the parties. In that view of the matter the trial
Court was in serious error in making the judgment on the basis of the report of
the Hand Writing Expert which was not admissible in evidence because of
non-examination of the Expert who made the report.
A N M W Nabi
& Anr Vs. Md.Balai Roy & Ors 15 BLT (AD) 27
Practice and Procedure
The
uniform view of the Courts is that generally a decision in a case in the facts
and circumstances of that particular case is a decision in the said case. The
decision of this kind or nature is neither general in nature nor universal. The
application of such class of decision in a subsequent case, facts and
circumstances whereof even if apparently appears near to the facts and
circumstances of the previously decided case(s) or somewhat close to the facts
and circumstances of the decided case(s), needs careful scrutiny of the facts
and circumstances of the case wherein the previous decision is relied upon or
made basis in arriving at the decision in a subsequent case. Decision in a
particular case made in the background of the facts and circumstances of that
case as well as upon placing the circumstance of that particular case in the
scale of equity and justice being not without exception as such use of or
reliance upon the said decision in arriving at decision in the subsequent case
the facts and circumstances whereof at the first impression appears to be close
or near to the latter case then took the facts and circumstances of the case in
hand are to be placed in the scale of justice and equity and then if the scale
of justice and equity tilts in favour of the party seeking the relief then the
decision in the previous case may be taken as additional factor in arriving at
the decision in the case in hand.
Hazi Mohammad Hossain & Ors Vs. Obaidul
Haque & Ors 15 BLT(AD,)188
Practice & Procedure
Islamic Jurisprudence
Islam is
a religion of peace. It is derived from the word “Salam” meaning peace. Using
the holy name of Islam, the petitioners have engaged in a wild mad struggle
jeopardizing the law and order of the country resulting in killing of innocent
people as has been done in the present case of killing the two Judges. Islam
does not encourage use of force in the matter of religion.
Shaiakh Abdur Rahman & Ors Vs. The State
15 BLT (AD)326
Practice and Procedure
Conduct of the Learned Public Prosecutor —
engaged a Private Lawyer
Since
the petitioner has no confidence over the learned public prosecutor and she
apprehends that the existing public prosecutor will not conduct the case
properly as being biased. We are of the view that petitioner may be afforded an
opportunity to prosecute her case according to her volition ends of justice.
Mst. Parvin Rahman Vs. Moniruzzaman & Ors
15 BLT (HCD)341
Practice and Procedure
Former
Enemy Property now Vested Property personal i.e. Assistant Custodian cannot
take possession of the alleged leased out property without having the property
partitioned by meets and bounds on institution a regular and proper suit for
partition —The dictum laid down by judicial verdict is that a co-sharer in
possession of a property could not be said to be in unlawful possession within
the meaning of Enemy Property laws and was not liable to be ousted from the
property without bringing a partition suit in Civil Court.
Sree Narayan Chandra Basak & Ors Vs. Govt.
of Bangladesh & Ors 15 BLT (HCD) 506
Practice and Procedure
Photostat documents
The
Petitioner obtained permission for swearing the affidavit on 03.03.1997. We do
not find any permission to move the application before any Court with those
Photostat documents. Though, there is no permission to move the application but
the learned Advocate for the petitioner moved the application and obtained
Rule, which is appeared to be a misconduct of an Advocate.
Al-Haj Abdul Maleque Gazi Vs. Bangladesh &
Ors 15 BLT (HCD)422
Practice and Procedure
Suit for specific performance of contract
The
court can exercise discretion in a suit for Specific performance of contract.
But it does not mean that it is open to a court to do just what it pleases in
an individual case without regard to authority or principle. Granting a
specific performance is not to be claimed as matter of right. It is in the
discretion of the court and will not be done unless complete justice can be
done by the party seeking it. Discretionary is not arbitrary or capricious but
it must be regulated upon grounds that would make it judicial.
Mohammad Ali Miah & Ors Vs. Md. Sekander
Ali Haowlader 15 BLT (HCD)484
Practice and Procedure
Trial —Priority basis
Accused
opposite Party No.1 being a Judicial officer, who has been attending the Court
from Chapai Nawabgonj on every dates on taking leave causing serious
inconvenience to the judicial works and accordingly, a direction be given upon
the Tribunal to conclude the trial of the case on priority basis over other
cases so that his harassment is minimized. We found substance in the contention
of the learned Advocate for the opposite party, Accordingly we direct the
Nari-O-Shishu Nirjatan Daman Tribunal to held on trial of the case on prior
basis and to continue examination of the witnesses without break till the
conclusion of the trial.
Mst. Parvin Rahman Vs. Moniruzzaman & Ors
15 BLT (HCD)341
Practice and Produce
Whether a document cannot be said to be a
fabricated document.
In the
matter of conveyancing in the Sub- continental Jurisdiction the practice as
being adopted and is usually followed is that when a particular document or
instrument is written by its writer or drawer a date is given there by the
writer, and that date is taken to be the date of execution and at the time of
authentication and or registration of such document a different date may be put
there by the registrar or authenticator, like Notary Public, and for the
difference between the date of writing and the date of authentication and registration
the document cannot be said to be a fabricated document.
Md. Mofidul Haque Vs. Govt. of Bangladesh
& Ors 15 BLT (HCD)258
Practice and Procedure
A decree
for Specific Performance of contract cannot be a bar to declare a Property as
and such a decree Abandoned Property.
Govt. of Bangladesh Vs. Mst. Shiuli Begum
& Anr. 12 BLT (AD)-19
Practice and procedure
On Limitation Act
The law
is now settled that against the wrong record of rights the person whose
interest is affected by such wrong recording need not file suit questioning
legality of the record of rights so prepared and finally published within 6
years from said date or from the date of knowledge of such wrong record of
rights, but he is required to file the suit seeking declaration of title within
six years from the date the person in whose name record has been wrongly
prepared and finally published rises claim denying his claim on the basis of
wrong record. But if the entry in the record of rights is made the cause of
action one has to file the suit within 6 (six) years from the date of final
publication of the record of rights and not from the date of the certificate of
the final publication.
Government of Bangladesh Vs. A.K.M. Abdul Hye
& Ors. 12 BLT (AD)98
Rebuttable
Presumption
so attached under section 144A of the Act to the Khatians prepared under
section 144 of the Act is rebuttable.
Government of Bangladesh Vs. A.K.M. Abdul Hye
& Ors. 12 BLT (AD)98
Practice and Procedure
Our
jurisprudence is very clear about when retrospective effect may be given to a
statute and does not envisage conferring retrospective effect to correct past
errors and irregularities by curative legislation.
Govt. of Bangladesh Vs. Apex Weaving & Finishing
Mills Ltd. 12 BLT (AD)-77
Practice and Procedure
Money
suit for realization of money Not maintainable It was the specific case of the
defendant that he asked for delivery challan of 2454 maunds and odd of tobacco
leaves but the Bank did not issue the delivery challan for taking out the
pledged goods from the godown of the Bank. It was contended on behalf of the
plaintiff that they published notice in the newspaper to sell the pledge
tobacco leaves. But failed to explain what happened to the goods that were in
the Banks godown. It is not also denied by the Bank that 2454 maunds of goods
were in the Bank’s godown and that said goods were pledged with the Bank by the
defendant. Since Bank could not explain what happened to the goods pledged with
it, the Bank is not entitled to the decree sought in the suit.
Sonali Bank Vs. Samsuddin Ahmed 12 BLT (AD)106
Practice and Procedure
In the
case of 52 DLR(AD)1, there was no guiding principle for fixation of tariff
value provided in the said S.R.O. dated 18.9.96 but in the instant case as
detailed above there were guiding principles provided in the rules framed
pursuant to Section 3(4) of the Excise and Salt Act, 1944.
Bangladesh & Ors. Vs. M/s. Eastern
Beverage Industries Ltd & Anr. 12 BLT (AD) 112
Practice and Procedure
Customs
plays a predominant part in the matter of succession in the absence of any heir
to the late Mong Chief. Customs in this case is the local customs of the Mong
Chief which constitutes a source of law for the Mong Circle in the absence of
any law as regards succession. Thus customs is something that has the effect of
local law.
Rajkumari Unika Devi Vs. Bangladesh & Ors
12BLT(AD)141
Member of Raj family
It
cannot be said that those who do not live with. Mong Chief in the same mess and
under the same roof are not members of the Raj family and as such the
respondent No. 4 though was not entitled to the payment of allowances on ground
of living in separate mess ‘and roof than the Mong Chief but cannot be termed
to be not a member of the Raj family.
Rajkumari Unika Devi Vs. Bangladesh & Ors
12BLT(AD)141
Practice and Procedure
In respect of the State property
We are
of firm view that even in an infrastructure project as in the present case, the
State dealing with, investor, local or foreign, in order to make the entire
deal transparent and accountable, the same should be undertaken on the basis of
competitive bids securing the overall interests of the Country so that it does
not apparently show that a State Largess has been given to anybody, local or
foreign in respect of the state property.
SSA Bangladesh Ltd. Vs. Mahmudul Islam &
Ors. 12 BLT (AD)171
Practice and Procedure
The
legitimacy of an action/expectation can be inferred only if it is founded on
the sanction of law or customs or established practice or procedure in regular
or natural sequence; otherwise, it would betray the exception of the public and
exercising its function fairly, reasonably and in accordance with law and
principles.
SSA Bangladesh Ltd. Vs. Mahmudul Islam &
Ors. 12 BLT (AD)171
Practice and Procedure
In our
view while on the basis of the materials as are on the record the relief as
prayed for can very much be given to the plaintiff, then for mere
non-compliance of the direction of the appellate Court while, at one time,
sending the suit back on remand to the trial Court directing the plaintiff to
amend the necessary amendment in the plaint seeking relief of different nature
from the relief prayed for by the plaintiff apparently erroneous then the Court
is quite competent to grant the relief sought for by the plaintiff inspite of
noncompliance of the direction of the Court to amend the plaint for enabling
him to a different relief and: thereupon to decree the suit, instead of
dismissing the suit for noncompliance of the direction of the Court which was
otherwise erroneous.
Md. Golam Rasul Vs. Chan Mohammed 12 BLT
(AD)163
Practice and Procedure
Decision
is a particular case in to be considered as applying to its particular facts
and circumstances. Assuming reasoning in the case is correct, it nevertheless
cannot be accepted as laying down a rule of limitation, i.e. in the
continuation of the proceeding, either in a strict or directory sense and must
be held to apply only in the special facts of that case.
Govt. of Bangladesh Vs. Md. Amjad Ali Mridha
&Ors 12BLT(AD)190
Practice and Procedure
Listing
of a particular property in a particular list that is ‘Ka’ list or in ‘Kha’
list is of no material importance to the claimant of the property unless it is
established by him that the property is not an abandoned property.
Government of Bangladesh Vs. Mr. K.M. Zaker
Hossain 12 BLT (AD)236
Practice and Procedure
It
appears from schedule-2 of the plaint that the suit land has not been properly
described and depicted and the same is not identifiable in the locality. Hence
local investigation was essentially required for ascertaining the identity and
location of the suit land by a survey knowing Advocate Commissioner. The trial
court ought to have done this before passing the decree because no decree can
be passed for vague and unidentified land because in that case the decree would
be rendered infructuous and a court of law is not supposed to pass an
infructuous decree.
Jabbar Jute Mills Ltd Vs. Md. Abul Kashem
& Anr 16BLT(AD)19
Practice and Procedure
The
Application for restoration of the appeal having not covered by the Practice
and procedure followed by the Administrative Appellate Tribunal the same was
rejected — Held: The practice and procedure follows by the Tribunal, whose
functions are of judicial or quasi judicial nature, would not be or cannot be
considered illegal or contrary to norms of justice unless the practice and
procedure follows by the Tribunal is negation of justice or contrary to good
conscience, fair play and equity or prejudicial to the parties before the
Tribunal. The practice and procedure in question, in our view, being not
negation of justice, there is no good reason to take exception thereto, since
taking exception to the practice and procedure follows by the Tribunal relating
to restoration of appeal dismissed for default for the negligence and laches of
the party, in our opinion, would amount give premium to the negligence and
laches of a party before the Tribunal and causing injustice to the other.
Govt. of Bangladesh Vs. Begum Mahamuda 16 BLT
(AD)128
Practice and Procedure
The Law
and practice and procedure provide that in
case of split judgment when the matter is referred to a third Judge, the
learned third Judge on fresh hearing, as the instant Rules are, give his
judgment and order as regard the case referred to him and thereupon the matter
is to be disposed of in the light of the majority judgment.
Mamunur Rashid Mamun Vs. Govt. of Bangladesh
& Ors 16 BLT (AD)226
Practice and Procedure
Suit for
Specific Performance contract —Suit property is debotter within is not
alienable/transferable according to Hindu law as contended by the Petitioner’s
Counsel —Held: we find no substance in the submission of the learned Advocate for
the petitioner.
Sree Sree Modon Mohan Gouro Nitai Deva Bigraha
Vs. Mozaharul Islam Chowdhury 16 BLT (AD)231
Practice and Procedure
The Court will not declare a law unconstitutional or
void if the case in which the question is raised can be properly disposed of in
some other way and court should not give decision on any law which is not
strictly necessary for the disposal of the case before it.
Govt. of Bangladesh & Anr Vs. Sheikh
Hasina & Anr. 16 BLT (AD)233
Practice and Procedure
The
provision of bail is. provided in the Code of Criminal Procedure in Sections
496, 497, 498 and 426 thereof and in bailable offences court will grant bail as
a matter of course but in non-bailable offences bail is never a right and it is
sometime granted in appropriate cases as a privilege.
Govt. of Bangladesh & Anr Vs. Sheikh
Hasina & Anr. 16 BLT (AD)233
Practice and Procedure
Procedural
law is always retrospective unless a different intention is expressly made in
the statute itself and no one has a right far less a fundamental right to trial
by particular Court or a particular procedure.
Govt. of Bangladesh & Anr Vs. Sheikh
Hasina & Anr. 16 BLT (AD)233
Practice and Procedure
Whether
the respondents were prejudice as because the hearing of the rule was made on
an off date which date was fixed for motion hearing only and the court after
hearing the rule passed the judgment and pronounced the same on the same date
without any information to the respondents.
Held: In
any view of the matter, the Advocate for the respondents was under a legal duty
to watch out or to arrange for watching the items appearing in the list
regardless of their position.
Habiganj Patty Bidhut Vs. Syed Tafazzul Islam
&Ors 16BLT(AD)152
Practice and Procedure
Any
observation made either by the learned Sessions Judge or the High Court
Division in disposing of the revisional matters will have no bearing on the
merit of the matter before the learned Magistrate and the Court of Magistrate
would proceed with the case independent of the observation or finding of the
High Court Division and the Court of Sessions.
Taher & Ors Vs. Md. Abdul Kuddus & Ors
16 BLT(AD)277
Practice and Procedure
The
process of sanction is an administrative act and is not subject to any judicial
scrutiny.—Whether the sanction was proper or valid or it suffers from any
defect that could only be determined at the trial on the evidence that could be
adduced to satisfy the trial court that all material facts were before the
sanctioning authority when sanction was accorded —If the letter for sanction or
consent for prosecution contains the full facts constituting the offence it
should be taken to be valid sanction.
Govt. of Bangladesh & Ors Vs. Iqbal Hasan
Mahmood 16 BLT (AD)313
Practice and procedure
It
is-the consistent view of this Court that in case of any transfer of case from
one to another Court, the order has to be shown to the learned of both the
parties.
Md. Abdul Gufran & Ors Vs. Md. Ahsan Ullah
Bhuiyan & Ors 16 BLT (HCD)30
Practice and Procedure
Criminal Jurisprudence —slandered of Proof
Every
piece of evidence has to be subjected to the test of objectivity and fabric of
truth should be the guiding factor. It is the duty of the court to disengage
the truth from falsehood. The court has to assess the worth of necessarily
imperfect human testimony. In a criminal case, the court cannot proceed to
consider the evidence of prosecution witnesses in a mechanical way. The broad
features of the prosecution case, the probabilities and normal course of human
conduct of a prudent person are of some factors which are always kept in mind
while evaluating the merits of the case and fixed formula can be adopted.
Md. Isahaque Ali & ors Vs. The State 16
BLT (HCD) 69
Practice and Procedure
Incorrect
quoting in the name of Appellate Division
The fact
of non-consideration of the judgments and orders passed by the High Court
Division, which are binding upon the Tribunal, and misquoting the Appellate
Division show the callousness of the Tribunal and its non-application of mind
in passing the impugned order. The above may lead one to believe that shows
either the Deputy Registrar of Trade Mark acting as Tribunal is incompetent and
lacks understanding of the language of the Court or has passed the impugned
order purposely, using the Appellate Divisions leave granting order incorrectly
and most illegally and such act is contemptuous.
Abdul Motaleb & Ors Vs. Haji Aftab Miah
& Ors 16 BLT (HCD)138
Practice and Procedure
The
Annexure was issued pursuant to an application by the Petitioner to the
Government for issuing necessary clearance certificate and approval of plan by
Rajuk In the said letter the Ministry of Housing and Public Works has written
to Rajuk stating that since the Government has given registration to the
Petitioner for construction of a 5 Star Hotel and Shopping Complex, therefore
Rajuk should issue necessary land use certificate as well as approved building
plan on priority basis. Such request by the Government or one Government
Department to another in favour of a particular person cannot create any vested
right in favour of the person for whom the request is being made.
Mst. Monowara Begum Vs. Govt. of Bangladesh
& Ors 16BLT(HCD)193
Practice and Procedure
Whether counter affidavit is not filed in
proper time
The
notice of this rule was served on the opposite parties 1-4, as appears from the
office note dated 22.4.2001 and the office note dated 2.4.03 shows that a
learned Advocate entered appearance on behalf all the opposite party Nos. 16.
The learned Advocate for the opposite parties has filed a counter affidavit
to-day during hearing of the case upon serving the copy thereof at 1-25 p.m. on
the learned Advocate for the petitioners Mr. Rabi Shankar Chakraborty and filed
the same before the court 2 p.m. This being the position I have refused to consider
the counter-affidavit during hearing of the rule and I have not read the
counter- affidavit as it was not filed in proper time.
Ratan Bikash Mahajan & Ors Vs. Kanchan Das
&Ors 16BLT (HCD) 217
Practice and Procedure
In not responding to the Justice demand notice
The
respondents, Bangladesh Bank and the Shilpa Bank, both also acted illegally in
not responding to the legal notice served upon them requiring delisting the
name of the petitioner from the impugned CIB report. Hence the respondent Nos.
1 and 4 are ordered to pay Tk.10,000/- (ten thousand) each as cost to the
petitioner within thirty (30) working days, in default said cost amounts may be
realised through Court, and that such amount should be realised by the
Respondents No.1 and 4, from the officers who were connected in the process for
the impugned enlistment of the name of the petitioner in the CIB report in
reference.
Quazi Nasibul Hassan Vs Bangladesh Bank &
Ors. 16 BLT (HCD)414
Practice
and Procedure
The
following conditions will determine whether company is an ‘instrumentality’ or
‘agency’ of the Government or a ‘local authority’:
1. If
the entire share capital of the company is held by the Government, it will go a
long way towards indicating that the company is an instrumentality or agency of
the Government.
2.
Existence of deep and extensive control of the Government.
3. The
true rational in setting up the company.
4. The
company is fully dependent on the financial assistance of the Government.
5. The
company is not run by its Memorandum of Association and Articles of
Association.
Md. Arif Sultan Vs Chairman, DESA & Ors 16
BLT (HCD) 424.
