Adverse possession
When a co-sharer is sole possession transfers the land in his possession to a stranger to the family and such purchaser possessed the land in assertion of his title to the exclusion of other co-sharer openly, notoriously and continuously and denied the title of other co-sharers by mutating and recording his name in he record of right and paying rent separately, the same will amount to ouster of such co-sharers and such possession more than 12 years will extinguish of title of a co-sharer by way adverse possession. [Para-20]
Md. Shamsuzzanum Vs. Abdul Gani & Ors. 10 BLT (HCD)-339
Adverse Possession
Adverse possession is a mixed question of fact and law in the sense, that the fact of adverse possession is to be gathered from surrounding circumstances and then, to decide whether such possession creates title in favour of the person in such possession—once adverse possessing for over the statutory period of limitation is established, the person in such possession becomes entitled to a decree since it is one of the accepted modes of acquisition of title in property.
Md. Mahtnood Alam & Anr Vs. Moklesur Rahman Bhuiyan. 10 BLT (HCD)-235
Shall
The construction of the word “shall” occurring in a statute depends on the setting in which the expression appears, the object for which the direction is given and the counsequences that would follow from the infringement of the direction. Keeping these principles in view we are of the opinion that the provision of Order 1 1, Ride 8 of the Code of Civil Procedure is directory in character and the court is yet possessed of powers to extend time in a proper case.
Bisheswar Bhattacharjee Vs, Shantimoy Bhattacharjee & Ors 8BLT(AD)-61
Bonafide requirement
The expression “Bonafide requirement” connots an element of “must have” which the petitioner failed to prove. It has been consistently held by the Superior Courts that in order to evict a tenant the landlord must prove that he
requires the premises bonafide meaning that his requirement is not a colourable pretext rather the need for the premises is a must short of which he will be deprived of his right to use his property.
Hari Mohan Saker Vs. Haji Ahmed Miah & Ors 8BLT (AD)-39
Aggrieved Person
Merely being a prior adopter and user of a mark would not give a person any vested right to object if his goods in question are not available in the market at a time when he mark is registered in favour of another person. We hold that the High Court Division has rightly found that the petitioner is not an aggrieved person to maintain its application for rectification of the trade mark register.
M/S Supremax International Private Ltd. Vs. Samath Razor Blades Industries Ltd. & Anr. 8BLT(AD)-45
Distinction between the words “Shall stand discharged” and “Will be discharged”
There is a distinction between the words “shall stand discharged: and “will be discharged” In the former the order reaches to its finality and the order of discharge will have automatic operation leaving no scope for recording any
further order and the court retains no jurisdiction to deal with the matter final in case of default and the discharge is not automatic and further order will be required for discharge.
Ms. Farhat Raham Vs. Roomee Tarek Mouded 8BLT (HCD)-108
Ex parte
The term Ex parte thus is applied in law to a proceeding by one party in the absence of and without notice to the other and carries with it the connotation that a court or a judge has proceeded in the absence of the other party when it could have had’the other party before it or when it was not presented by law from hearing the other party before it.
Md. Abu Zafar Miah vs. Abdul Motaleb & Anr. 8BLT (HCD)-94
Court
To be a court, the persons or person who constitute it must be entrusted with judicial function in deciding litigated questions in accordance with law. A court must be a competent authority deriving power from the state to make a judicial decision. A public officer to be a court must be empowered to make a juditive judgment is, therefore, considered the essential sinegquonon of court and unless and until a binding and authoritative judgment can be pronounced by person or body of persons it cannot be predicted that he or they constitute a court.
Md. Abu Zafor Miah Vs. Abdul Motaleb & Anr. 8BLT (HCD)-94
Decision
A decision is the determination of the controversy touching facts, law and context an reaching of a conclusion.
Sirajul Islam Chowdhury Traders Ltd. Vs. Sirajul Islam chowdhury 8 BLT (HCD)-136.
Benami
The word “Benami” is of Persia orgin made o two words “Be” and “Nam” meaning no name i. e. nameless or fictitiours. The nominal owner is the Benamdar. the simple meaning of “Benami” is that a purchaser desicres to buy property but does not desire to buy in his own name and therefore buys it in name of someone else.
S. D. Daliluddin Vs. Moulvi Bazlur Rahaman 8BLT (HCD)-171
Benami Transaction in respect of Bangladesh
The “Benami Transaction” give rise to countless Utifations and witnessed evil effecton the society. The evil effect flowing from “Benami Transaction” had been noticed by the legislators, the law makers of Bangladesh. Subsequently, by the land Reforms Orginance, 1984 the concept of “Benami Reforms Ordincane came into fore of January 26. 1984 when the same was published in the Bangladesh Gazette Extraordinary and coming into force of the said Ordinance,
no one is allowed to set up the claim of “Benami Transaction”.
S. D. Daliluddin Vs. Moulvi Bazlur Rahaman 8BLT (HCD)-171
Burden of Proof
Burden of proof is the obligation to adduce evidence to satisfaction of the court in order to establish strictly the existence of non-existence of a fact contended by a party, the provision as to burden of proof is founded on the Rule i.e. incumbit probation qui dicit non qui nega—which is the burden of proving a fact rests on the party who substantially asserts in affirmative of the issue and not upon the party on the party who substantially assets in affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof.
The Rule is derived from the Roman law and is supportable not only on the Ground of fairness but also upon that on the greater practical difficulty which is involved in proving a negative than in proving an affirmative.
S. D. Daliluddin Vs. Moulvi Bazlur Rahaman 8BLT (HCD)-171
Court’s duty
The fundamental duty of the court is to administer justice on technical grounds. The principal object behind all legal formalities is to safeguarded these paramount interest of justice and mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice. The English system of administration of justice on which our own is based may be to a certain extent technical but the defect of that system should not be taken too strict—adherence to procedure defeats course of justice.
S. D. Daliluddin Vs. Moulvi Bazlur Rahaman 8BLT (HCD)-171 Afterthought matter
Custody of Title deed plays an important part in proving the case of Benami transaction. Custody of Title deed came from the side of defendant opposite party. In the originalplaint there was no statement as to the custody of Title deed. The plaintiff a P.W. 1 on 18.04.1994 on the witness box in anwer to a question stated that he would produce Title deed subsequently. The reply is produce here in verbatim D³ `wjj c‡i Rgv w`e Record manifests that subsequently by way of an amendment which was allowed by the court on 30.04.1994 statement was incorporated that the wife of defendant took away the said Title deed from the wife of theplaintiff with the plea that the same would be returned back but the said Title deed was not returned back, From this, the point had been crystallized that the attempt made by the plaintiff to explain custody of Title deed was very much an afterthought matter.
S. D. Daliluddin Vs. Moulvi Bazlur Rahaman 8BLT (HCD)-171
The records of the case
The words the records of the ease appearing in Section -241A mean the records of the prosecution.
Mohammad Nazrul IslamChowdhury & Ors. Vs. Abul Bashar Chowdhury & Ors. 8BLT (HCD)-220.
An Injunction
An injunction is an equitable relief, a strong •arm of equiry. It is to be issued in aid of justice and not to aid injustice. Temporary injunction is mere provisional in its nature and its sole object is to preserve the subject matter in controversy without determining the rights of the parties and to prevent the doing of an act whereby the subject matter of the right in the suit property or controversy may be in danger.
Abu Mohammad Yousuf & Ors. Vs, Mrs. Basirannessa & Ors. 8 BLT (HCD)-307.
Equality, transparency and accountability of public functionaries
In a democratic society the public functionaries are under legal and moral obligations to mete out equal treatment all citizens. Granting of revenue holiday to the plaintiff involving crores of taka without and justifiable reason is a classic example of wanton discrimination and mis-use of discretion in managing the affairs of the state. The publie functionaries must be cautious in doling out charities by way of granting revenue holidays to individuals or establishments against public interest. The question of transparency and public accountability cannot be ignored at the pleasure of an individual or a group of individuals.
Expert Engineering Vs. Roads & Highways 9BLT(HCD)-221
Decree
A “Decree” should be understood a contested “decree’ but not an ex-parte “decree’ which always remains a questionable decree.
The celebrated jurists had time and again pronounced that the Judges should be leaned to allow the defaulting party to put their grievance or cause before the court and the issue thereof should always be resolved on contested hearing
Abul Kashem Vs. Md. Selim & Ors.9BLT (HCD)-317.
Bangladesh
Bangladesh came into being as a fulfillment of the dreams of the millions of Bangalis so that they can breath in an independently country of their own. They knew that their country is not rich but expected that social justice shall be established and the people shall be provided with the bare minimum necessarities of life the Constitution of the People’s Republic of Bangladesh envisages a welfare state and makes all citizens have got equal rights in every sphere of life including food, shelter, healthcare, education and so forth which is of fundamental in nature.
Kalam and Ors. Vs. Bangldesh. 9BLT(HCD)-323
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 Courts all over the world in deciding an issue give importance always to the overall interest of the people at large which commensurate with sense of social justice in a welfare state.
Bangladesh Soya Protein Project Ltd. Vs. Ministry of Disaster Management Relief 9BLT (HCD)-393
Rules of Law and Procedures
Rules and procedures are prescribed as means for advancing the case of justice. A Court of law while administering justice must conform to the rules of law and procedures and in cannot violate these in the name of interest of justice.
Sk. Shorah Ali Vs. Gazi Abdur Rashid & Ors. 9BLT(HCD)-433
Sufficient Interest
What is meant by sufficient interest is basically a question of fact and law which shall have to be decided by the court. None of the fundamental rights like rule of law is subject to mechanical measurement. They are measured in our human institution i.e. the courts and by human beings i.e. the Judges by applying law. Therefore, there will always be an element of discretion to be used by the court in giving standing to the petitioner, from the above, it appears that the courts of this jurisdiction has shifted its position to a great extent from the traditional rule to standing which confines’ access to the judicial process only to those to whom legal injuries caused or legal wrong is done. The narrow confines within which the rule of standing was imprisoned for long years have been broken and new dimension is being given to the doctrine of locus standi.
ETV Ltd. And. Vs. Govt. of Bangladesh & Ors. 10 BLT (AD)-108
Negotiation
Ingredients or incidents of Negotiation—negotiation,in the context of documentary crudities do not merely mean nodding of heads between the bank and the seller who hands over his draft and other documents but definitely means something more, something tangible.. In order to complete the negotiation, the concerned bank must make the necessary payment against the draft and /or the documents. This incident of payment made the bank which received the documents a negotiating bank, without which the said bank would not be a negotiating bank but may be a collecting bank to collect the payment from the issuing bank as an agent of the seller—the word ‘negotiation’ clearly envisages the purchase of draft and documents by the concerned bank, even a promise to pay at a later date, would not do there must be a corresponding payment to the beneficiary on receipt of the draft and the documents by the concerned bank, to make it a negotiating bank.
National Bank Ltd. Vs. Babib Bank Ltd. 10 BLT(HCD)-246
Co-sharer in the Land
The concept of Co-sharer cannot be conceived independent of any holding or tenancy. If the holding is recorded in the name of more than one person, then, each of such person to his succession-in-interest is the co-sharer to each other in such land. Such a Co-sharer will deem of continue as such co-owner in both holding as well as in land so long holding will continue to be joint. [Para-21]
S.S. Nasirul Haque vs. Omar Faruque Chowdhury & Ors. 10 BLT(HCD)-318
Judge’s
Judges are not islands. They liked all other individuals are human beings. They are neither robots nor do they live like monks or runs in a cloistered monastery nor do they live in an ivory tower detached from he society shutting their eyes and closing their ears no evil hence cannot afford to say that “we wee no evil and hear no evil. If any doing so in my opinion that would be pernicious, immoral, unethical and most of all conduct unbecoming of a judge specially if he happens to be a judge of a constitutional Court.
Afzalul Abedin & Ors. Vs. Govt, of Bangladesh & Ors. 10 BLT(HCD)-490
“Merit”
The term “Merit” has a wide connotation and cannot be restricted to academic qualifications only.
Motiur Rahman & Ors. Vs. BADC. 11 BLT (AD)-151
Public interest Litigation
The nature of public interest litigation (Called PIL hereinafter) is completely different from a traditional case which is adversarial in nature where PH. is intended to vindicate rights of the people. In such a case benefit will be derived by a large number of people in contrast to a few. PI I. considers the interest of others and therefore, the court in a public interest litigation acts as the guardian of all the people whereas in a private case the court does not have such power. Therefore, in public interest litigation the court will lean to protect the interest of the general public and the rule of law vis-a-vis the private interest.
E.T.V. Ltd & Anr. Vs. Dr. Chowdhury Md. Hasan & Ors. 11 BLT. (AD)-18
Contempt of Court
Contempt of Court has not been defined either in the constitution or in any other statute, but there has been judicial interpretation thereof. Proceedings for contempt are initiated for the purpose of protecting the image and dignity of the court itself. The purpose of proceedings in contempt of court is to keep the stream of justice unsullied and to maintain the confidence of the public at large in the fair and impartial administration of justice by the court of law in a proceedings under contempt there cannot be both justification and an apology.
Md. Sirajul Islam Vs. Wahidul Haque. 11 BLT (HCD)-168
Vakil and Pardanashin
Now a days, these two words vakil and pardanashin are obscure, obsolete and almost obscene for those who are going to marry by maintaining ceremonial congregation and festivity at the expense of huge money. The condition of womenfolk has also improved in the rural areas to a great extent both in education and social perspective. This process, hopefully will continue. A daughter is not pardanashin if she can read and write and if she can not read and write, that is a course upon the parents and the society.
Moulana Ruhul Mannan Helali Vs. Government of Bangladesh & Ors. 11 BLT (HCD)-366
Legitimate
The word ‘legitimate’ connotes lawfully begotten. An expectation to become legitimate therefore should not be shorn of lawful begetting. The concept of legitimate expectation cannot be given such wide interpretation so as to allow any wishful hope without lawful root. In the instant case we have found that as a result of mere recommendation of the petitioner to the government for selection as the best Chairman of the district, he is said to have entertained an expectation not based on any legal ground neither borne out by lawful begetting and as such his expectation, however firm it was. cannot be termed to be legitimate expectation.
Md Hajizul Islam Vs. Govt. of Bangladesh & Ors. 11 BLT (HCD)-65
Benami
The word “Benami” is a Parsian compound word consisting of (i) Be which means ‘without’ and (ii) Nam which means ‘name. It literally means without a name, that is nameless or fictitious and is to denote a transaction which is really done by a person without using his own name That is. not in the name of real purchaser, but in the name another. In every such benami transaction there are three persons concerned; the vendor, the real purchaser and the name lender.
Ali Azam Vs. Mohammad Majibullah. 11 BLT. (HCD)-26
Benami Transaction
The word benami transaction means a transaction in which the purchase is made in the name of some one other that the real purchaser. In the alleged transaction it appears that the name of the real purchaser as well as his alleged benamder are appeared in the kabala deed. So apparently the instant transaction is not a benami transaction within the meaning of the words ‘benami’ “benamder” and “benami transaction.”
Ali Azam Vs. Mohammad Majibullah. 11 BLT. (HCD)-26
Consultation
The Constitutional Consultation cannot be equated with conventional consultation.
S. A. Gaswaami & Ors. Vs. Govt. of Bangladesh & Ors. 11 BLT (HCD)-213
Newspaper
Newspaper is powerful means for propagating political and social views and molding the opinions of the people towards their certain ends. It gives an opportunity the journalist and the people to express their personal views on subjects of their having public interest. Through these, they can ventilate their grievances and demand redress. The newspaper is the best means through which the Government may know it defects in administration and so correct its ways for well being of the people. It is one of the very important things in the life of a civilized nation. It is the medium through which public opinion expresses itself. The press is free to after criticism on the functioning of the court or its officials as the very idea of the open the British System is to make it appear to the world at large to how the courts of the country are functioning. We believe that in this modern world, news media is one of the strong pillar which furnishes information of loopholes of the administration and its machineries.
Daily Star & Protham Aloq Partika Vs ‘The State. 9BLT (HCD)-91
“Whoever marries”
Section-494 of the Penal Code Act, 1860— the world “whoever marries appearing” in the section must mean whoever marries validly. If the marriage is not valid., it is not marriage in the eye of law.
Butul Rabidas & Anr. Vs. The State. 9BLT (AD)-145
Decree
A “Decree” should be understood a contested “decree’ but not an exparte “decree’, which always remains a questionable decree. The celebrated jurists had time and again pronounced that the Judges should be leaned to allow
the defaulting party to put their grievance or cause before the court and the issue thereof should always be resolve on contested hearing
Abul Kashem Vs. Md. Selim & Ors. 9 BLT (HCD)-317
Public Servant
A public servant by definition in 1982 in the Panel Code will prospectively deemed to be a public servant under Act II of 1947 when he commits an offence as public servant after the amendment of the Panel Code. Further, Section 5 of Act II of 1947 speaks of the offences as mentioned in the schedule of the Act to be tried by Special Judges. In the schedule we find sections 403 and 477A of the Panel Code with which the accused has been charged for committing misconduct as a public servant.
IFIC Bank Ltd. Vs. Abdul Quayum & Anr 9 BLT (AD)-124
‘Right’
The word ‘right” is used to mean a primary or substantive right, and this proposition that the law of limitation does not extinguish the rights but only bars the remedy, as argued by the learned Advocate is true, if the word is understood in a restricted sense only. For a remedy is also right in the wider sense of the word, a secondary right, a remedial or procedural right as it is often called, and limitation undoubtedly extinguishes -such a procedural right. A person can enforce his substantive right, even though time barred, if there are other legal remedies available for the enforcement of the same. But, in the present case the remedy being enforceable in law and there being no remedy available under the law, this primary or substantive right of the plaintiff was lost by the law of limitation.
Idris Ali Bhuiyan Vs. Enamul Haque 9 BLT (AD)-194.