Rules Of The
High Court Of Judicature For East Pakistan
Chapter III
Of Part I (Volume I)
Jurisdiction
of vacation Judge
If,
following the Rules, during the vacation only a Single Judge is invested with all
the jurisdictions that the High Court Division exercises, the Single Judge
becomes the repository of all manners of jurisdiction that the High Court
Division enjoys, provided the matter is urgent. It is the urgency of the matter
which gives jurisdiction to the Single Vacation Judge even to keep in abeyance
during the period of vacation an order passed by regular Division Bench. When a
case of urgency is made out and the Single Vacation Judge is satisfied that it
is both urgent and proper to interfere, there is no lack of jurisdiction in
exercising the power but this unusual power is to be exercised sparingly and
with utmost caution, keeping in mind that it is improper for a learned Single
Judge acting during the vacation to interfere with the interlocutory order of a
regular Division Bench in wanton disregard of propriety.
Azizur
Rahman alias Md. Azizur Rahman Vs Govt. of Bangladesh and others, 17 BLD (AD) 203.
Article—57
Code of
Civil Procedure 1908, Order VI rule 17
Unnecessary
parties and prayers may be struck out by the court from an election petition by
an amendment.
Md. Idrish
Ali Bhuiyan v. Dr. Alauddin Ahamed, 22 BLD (HCD) 175.
Ref:
AIR 1969 (SC)667; AIR 1974 (SC) 1185; AIR 1964 (pat) 296; AIR 1964 (SC) 1545:
AIR 1958(All)858.
Article—57(6)
Article
57(6) of the Order provides that the Tribunal shall try an election petition as
expeditiously as possible and shall endeavour to conclude the trial within six
months from the date on which the election petition is referred to it for
trial.
Advocate
Mohammad Abdul Hamid Vs The Chief Election Commissioner, Bangladesh Election
Commission and others, 18 BLD (HCD) 595.
Article—58(a)
Joinder
of unnecessary parties and prayers cannot be considered fatal to the trial of
an election petition when there are necessary parties and prayers in that
petition.
Md. Idrish
Ali Bhuiyan i. Dr. Alauddin Ahamed, 22 BLD (HCD) 175.
Article—62(2)(3)
The
decision of a tribunal on an election petition shall be final under clause(2)
of Article 62 but the same sub-clause starts with a ridden i.e.; “same as
provided in clause(3)” which means that finality is subject to any appeal taken
by an aggrieved person to the High Court Division under sub-clause (3), the
decision in the appeal shall be final under sub clause(3). As soon as there is
an appeal under sub-clause (3) taken the finality of the decision under
sub-clause (2) of the tribunal is automatically displaced.
Sudhangshu
Shekhor Halder Vs Moulana Delwar Hossain Saydee and others, 19 BLD (AD) 133.
Article—65(a)
For
failure of the Presiding Officer to take proper steps when Abdul Mannan did not
show up and when Shahidul Islam acted in his place unlawfully, the voters
cannot be disenfranchised and the candidates should not be penalised to go
through the motion of another polling particularly when there is absolutely no
finding that Shahidul Islam’s participation made a difference in the voting
pattern or that the appellant had a connivance in the matter or that he
benefited from an illegality of which he had prior knowledge.
Any
and every kind of failure of any person to comply with the provisions of the
order and the rules will not result in the declaration of the election as a
whole to be void.
Moulana
Delwar Hossain Saydee Vs Sudhangshu Shekhor Halder and others, 20 BLD (AD) 11.
Article—67(1)
The
purpose of taking effect of an order of a tribunal on the date on which it is
made under clause (1) of Article 67 seems to be that the law clearly lays down
that such an order shall not be effective from any prior date. The reason of
making this provision is that all declaratory decree/orders are retrospective
in operation and unless specifically given prospective date of operation, the
final order passed by an Election Tribunal will automatically retrospective.
Another apparent reason being to save the acts in which the returned candidate
participated. There is no compulsion in the said provision to deny the
ancillary or concomitant power of granting stay while entertaining in appeal by
the High Court Division. As for the power of and reasons granting stay, the
Appellate Division has endorsed the view taken by the High Court Division.
Sudhangshu
Shekhor Halder Vs Moulana Del war Hossain Saydee and others, 19 BLD (AD) 133.
Ref:
AIR 1969 (SC) 430; PLD 1972 (Peshwar)15 1—Cited.
Article—73
Evidence
led in support of the corrupt practice must not only be cogent and definite but
if the election petitioner is to succeed he must establish definitely and to
the satisfaction of the Court the charge of the corrupt practice which he
brings against the returned candidate. In the light of the pleading and
evidence and materials brought on record it is seen that the election
petitioner failed to adduce any cogent, satisfactory or reliable evidence to
bring home the charge of corrupt or illegal practice against the returned
candidate and miserably failed to discharge the onus of proving the charges
leveled by him against the returned candidate. (Per A K Badrul Huq,J agreeing
with M M Haque,J)
Mr. Emdadul
Haque Bhuiyan Vs Ataur Rahman Khan and ors., 20 BLD (HCD) 74.
Ref:
Mohan Singh vs Bhanwarlal, (1964) 5 SCR 12 = AIR 1964 SC 1366; Guruji Shrihar
Balirum Jivatode vs Vithal rao, (1969) 2 SCR 766= (1969)1 SCC 82; Nihal Singh
Rao Birendra Singh and another, (1970) SCC 239; Smt. Om Prabha Jam Vs. Charan
Dass and another, (1975) 4 SCC 849; Daulat Ram Chauhan vs Anada Shama, (1984)2
SCC 64=(1984) 2 SCR 619; Surinder Singh vs Mardial Singh and others, (1985)
ISCC9I= AIR 1985 SC 89; S Marcharan Singh vs S Sajjan Singh and others, (1985)
1 SCC 370=AIR 1985 SC 236; Quamrul Islam vs SK Kanta, 1994 Supp(3) SCC5;
Gajanan Krishnaji Bapat Vs. Dattaji Ranghotaji Megher (1995)5 SCC 347; Balder
Singh Mann vs Gurcharan Singh (MLA) and others, (1996) 9SCC 351 relied.