Absorption
The term “Absorption” in Service Jurisprudence means taking in or accommodating a public servant, who may, for various reasons, have been found or declared to be a surplus.
Lt. Cot (Retd) Nazimuddin Ahmed Vs. Bangladesh & Ors. 3BLT (AD)-176
Abandoned Property and Vested Property
Once a property is treated as an abandoned property, it cannot thereafter be treated as a vested property. An abandoned property can never become a vested property. The action of the defendants in treating the suit property as a vested property
is consequently illegal and without jurisdiction.
Hindu Devi Lakshmi Gobinda Jew Vs. Bangladesh & Ors. 7BLT (HCD)-133
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 cosharers by mutating and recording his name in the record of right and paying rent separately, the same will amount o ouster of such cosharers and such possession more than 12 years will extinguish of title of a co-sharer by way adverse
possession.
Md. Shamsuzzaman 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. Mahmood Alam &Anr Vs. Moklesur Rahman Bhuiyan. 10 BLT (HCD)-235
Administration of justice
Court or Tribunal adjudicating any Judicial matter must administer justice according to law and must not allow itself to be influenced by emotions or personal notions, however heinous the offence involved in the case may be. A dispassionate and
balanced approach to the vital aspects of the case and the law bearing on the subject is a precondition for administering even-handed justice. Law, equity and good conscience demand that justice should not only be done but it must also be seen to have been done.
Md. Hanif Sheikh Vs. Mst. Asia Begum 7BLT(HCD)-28
Adverse Possession
Adverse Means obstruct to one’s interest unfavorable, harmful or detrimental or prejudicial. Adverse possession means hostile possession which is expressly or impliedly in denial of the title of the true owner. Such possession Must be actual and exclusive under a claim of right adequate in community. if publicity and in extent, so as to show that it is adverse to the true owner. Such
possession in denial of title of the true must be peaceable, open and continuous. It must be open and hostile enough to be capable of being known to the party interested before a right can be acquired or lost by adverse possession, it must have been the subject of possession by a man without title as against the person with the rightful title.
Abu Taher & Ors Vs. Ayub Ali Mollah & Ors 14 BLT (HCD)486
Alibi
The word “alibi” is a Latin term . Literal meaning of “alibi” is “elsewhere” . In law this term is used to express that defence in a criminal prosecution where the party accused in order to prove that he could not have committed crime charged against him, offers evidence that he was in a different place at that time. The plea taken should be capable of meaning that having regard to time and place when and where he is alleged to have committed the offence he would not have been present . The plea of “alibi” postulates the physical impossibility of the presence of accused at the scene of offence by reason of his presence at another place.
The State Vs Md.Gaus Meah @ Rana& Ors. 13 BLT (HCD)136
A Statement of accounts
A statement of accounts to be tiled in court must show the details and debit entries, and if debit entry relates to interest then setting out also the rate of interest and the period for which, the interest was charged.
Uttara Bank Ltd. Vs. Mrs. Ayesha Siddique &Ors 12 BLT (HCD)106
“At or about the time”
The expression at or about the time” must mean that the statement must he made at once or at least shortly after the event, when I reasonable opportunity for making its present itself.
The State Vs. Enayet Hossain @ Endu Molla 12 BLT (HCD)242
Benefit of Doubt
Benefit of doubt means an advantage or behoof of doubt. Reasonable doubt must be a doubt, arising from the evidences or from the want of evidences and cannot be an imaginary doubt or conjectures unrelated to evidence. Doubts which are real,
genuine, well founded, which a normal man with normal intelligence in a given circumstances would normally harbour are doubt that come within the fold of Reasonable doubt entitling one to Benefit of doubt.
The State Vs. Ershad Ali Sikder & Ors 12BLT (HCD)481
‘কোন আদালত’in respect of Artha Rin Adalat Ain
The word ‘কোন আদালত’ occurring in Sub Section-( 1) of Section-6 of the Act refers any other court than the Artha Rin Adalat.
Islami Bank Bangladesh Ltd. Vs. Al Haj Shafiuddin Howlader &Anr. 8BLT(AD)-187
Acquiescence
“Acquiescence” is, therefore, acceptance, active assent and active consent, consent by silence, giving up abandonment of claim which a person can perform and enforce.
A. Latif and Company Limited Vs. The Project Director & Ors 12 BLT (HCD) 311
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 original plaint there was no statement as to the custody of Title deed. The plaintiff as P.W. 1 on 18.04.1994 on the witness box in answer to a question stated that he would produce Title deed subsequently. The reply is produce here in verbatim “উক্ত দলিল পরে জমা দিবে” 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 the plaintiff 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 Baziur Rahaman 8 BLT (HCD)-171
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. 8 BLT (AD)-45
Arbitration
Arbitration therefore is submission by two or more persons of their disputes, differences or disagreements to the judgment and/or decision of a third person, known as arbitrator who will finally decide the controversy of course in judicial manner.
Bangladesh Jute Corporation Vs MIS. A. B. Jute Limited 13BLT (HCD)92
Bangladesh
Bangladesh came into being as a fulfillment of the dreams of the millions of Bengalis so that they can breathe 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. Bangladesh. 9 BLT(HCD)-323
Benami
The word “Benami” is of Persia origin made o two words “Be” and “Nam” meaning no name i.e. nameless or fictitious. The nominal owner is the Benamdar. the simple meaning of “Benami” is that a purchaser desires 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 8 BLT (HCD)-171
Benami
The word “Benami” is a Persian 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 in respect of Bangladesh
The “Benami Transaction” give rise to countless litigations and witnessed evil effect on 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 Ordinance, 1984 the concept of “Benami Reforms Ordinance came into force 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 Baziur Rahaman 8BLT (HCD)-171
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
Bill of Leading
A Bill of Lading is not the contract itself because that has already been made before the bill of lading was signed and delivered. It is only an evidence of the contract.
Govt. of Bangladesh Vs. M. V. Vishwa Kaumudi & Ors 12 BLT (HCD)365
Bonafide requirement
The expression “Bonafide requirement” connotes 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 Sarker Vs. Haji Ahmed Miah & Anr. 8BLT (AD)-39
Burden of Proof
An abandoned property—The petitioners carried the onus to Prove the presence or where about or management of the building in question by the original non-Bengali owner when P.O. No. 16 of 1972 was promulgated and this burden of proof having not been discharged by them before the Court of Settlement.
Rahima Begum & Ors. Vs. Court of Settlement 5BLT (AD)-100
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 nonexistence 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 8 BLT (HCD)-171
Cause of Action
It is now well settled that suspension as a prelude to the disciplinary action as not a punishment and as such it does not give rise to any cause of action and in the instant suit from exhibit cha (8) it is crystal clear that the plaintiff opposite party No. 1 has been placed under suspension in pursuance of resolution dated 1.7,90 wherein it has been resolved by the Governing Body that
they would constitute and appropriate committee for taking disciplinary action against the plaintiff opposite party No. 1 in view of the allegations leveled against him and in that view of the matter we held that the instant suit suffers from want of cause of action but unfortunately both the courts below surely missed this point.
Dhunat Degree College Vs. M. A. Samad & Ors. 5BLT(HCD)-110
Cause of Action
The expression “cause of action”, thus, means the entire bundle of facts which a plaintiff has to prove in order to be eligible for the grant of relief. In other words, it can be stated that the facts that are alleged in the plaint and which are required to be proved without proof of which the plaintiff would not be entitled to a judgment, constitute the cause of action. Equally it can be
said that a cause of action presupposes the existence of a right in the plaintiff which right has either been infringed or is threatened to be infringed. The right must be a substantive right, or it may pertain only to procedure, but the right must be there. Whether any particular facts constitute a cause of action has to be determined with reference to the facts of each case
and with reference to the substance rather than the form of the action. Cause of action cannot be construed in an isolated way and the whole averments made in the plaint are to be seen and taken together to see whether any cause of action has been disclosed or not. It is the plaint as a whole which is to be construed and not the terminology or for that matter, a few stray references.
Mohammad Azim & Ors. Vs. Doly Islam & Ors. 7BLT (HCD)-164
Cause of Action
Government’s possession of the suit property or possession by any official on its behalf is not that of a ‘trespasser’, or Government is not a finder of a ‘derelict object’ warranting consequential relief. The Government claims possession under
colour of the law. Upon a decree for declaration the Govt. Could not claim title hostile to the owner. The Government is a ‘constructive trustee’ subject to the liabilities and disabilities, as it were a trustee of the property for the person for whose benefit it holds it. Upon removal of the could by a decree for declaration it remain undoubtedly under the obligation as a trustee to relinquish possession over the property in favour of the owner. Failure to restore possession will give rise to a fresh cause of action.
Sena Kalayan Sangstha Vs. Mr. Nagar Mohiuddin & Ors 14 BLT (AD) 230
Cause of Action
Cause of action cannot be construed in an isolated way and whole averments made in plaint are to be seen and taken together to see whether any cause of action has been disclosed or not.
Bangladesh Bank Vs. Saiyed Shohidul Haque & Ors 15 BLT (HCD) 239
Citizenship
The term “citizen” derived from the Latin word “civics” is no longer understood in the narrow sense of earlier times as an inhabitant of a city or a freeman having a family in a city or as the representative of a city In parliament. By citizen it is now meant a person who is a member of an independent political community having rights and obligation under the constitution and law of that country, what sovereignty is to a state, citizenship is to a person. Sovereignty gives a state membership in the family of nation and citizenship gives a person membership in the political community of his country. Citizenship, the status
of being a citizen, is a term of Municipal Law, Nationality, the status of being a national, is a term of international law. Citizenship, though not mentioned as a fundamental right in pur Constitution, is to be considered as the right of all rights as on it depends one’s right to fundamental rights expressly provided for a citizenship in part III of the Constitution.
Bangladesh Vs. Prof Golam Azam & Ors. 3BLT (AD)-3
From the international standpoint, the nationality is the status and quality of belonging to particular nations or states. All nations of a state are not citizens though citizens must be nationals. A national of a state may not possess full civil or political rights, but a citizen must possess full civil or political rights. The provisions of the Act of 1951 and P.O. 149 of 1972 are to be read together to get a complete picture of the law of citizenship in Bangladesh.
Bangladesh Vs. Prof Golam Azam & Ors. 3BLT (AD)-3
Citizenship may be acquired by birth or by naturalisation, A person who is deemed to be a citizen of Bangladesh under Article 2 of the order is not required to take any oath of allegiance unless he is elected or appointed to any office mentioned in the third schedule of the Constitution. A naturalised citizen is however, required to take oath of allegiance to the Constitution of the People’s Republic of Bangladesh.
Bangladesh Vs. Prof Golam Azam & Ors. 3BLT (AD)-3
‘Circular’
Circulars are of three kinds, i-e, simply drawing attention to recent legislation and delegated Legislation, giving advice or information and the third is purely executive containing a model form of Order to be made by a Local authority—relied on Odger’s The construction of Deeds and statutes.
According
to Scott L. J. “Minister’s “Circulars” were not mere executive directions but delegated Legislation with statutory force, conferring powers on the Corporation which they would not otherwise have possessed.”
Md. Solaiman Khan & Ors Vs. Govt. of Bangladesh. 12 BLT (HCD)342
Computation of Interest
In respect of computation of interest, from Ext. 2, credit agreement dated 20.7.70 it would appear that the interest was fixed @ 71/2% per annum on the outstanding amount of loan disbursed. Interest is payable in half yearly rests, first payment becoming due on the date six months after from the date of opening the first letter of credit. In the terms and conditions of the schedule of agreement the question on penal interest was incorporated by way of liquidated damage @ 11/2% in the event of the borrowers failing to pay when due, any installment of the principal of the loan/credit, interest, commission or any other costs, charges and expenses which the borrowers are liable to pay under this agreement. The interest payable under this sub-clause shall be computed for the period of default.
Delta Jute Mills Ltd Vs. Bangladesh Shilpa Bank & Ors. 7BLT (AD)-274
Computation of Time
The suit is barred by limitation having not been filed within 12 years from the admitted date of dispossession in the year 1971 as contended by the petitioner’s Counsel
The admitted position that the suit property was released by the Government on 13.4.76 in favour of the plaintiffs vendor, Mahboob Hossain, whose ownership had been accepted by the concerned authority and as such the period the property had been under the management of the Government as abandoned property cannot be tagged with the period of limitation of 12 years. The suit having been filed on 10.8.86 well within the period of 12 years from 13.4.76 is not barred by limitation.
Mostafa Ali Mridha Vs. Md. Raquibullah & Ors. 7BLT (AD)-258
Compensation
‘Compensation’ means anything given to make things equivalent; a thing given to or to make amends for loss, recompense, remuneration or pay; it need not therefore necessarily be in terms of money.-Compensation cannot be based on imagination
and expectation. It could only be based on actual loss and injury.
BCCI Ltd. Vs. Bangladesh Electrical Industries Ltd. & Ors. 12 BLT (HCD)502
“Continued ill-health”
The interpretation of the words “continued ill- health” should be kept as flexible as possible so as to accommodate individual cases or classes of cases of ill-health within the scope of those words, depending upon the facts and circumstances of each case.
M/S. Korim Jute Mills Ltd. Vs. Second Labour Court 5BLT(AD)-289
Consultation
The Constitutional Consultation cannot be equated with conventional consultation.
S. N. Goswami & Ors. Vs. Govt. of Bangladesh & Ors. 11 BLT (HCD)-213
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 sinegquanon 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
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 inless 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 Baziur Rahaman 8 BLT (HCD)-171
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.
S.S. Nasirul Haque Chowdhury & Ors. vs. Omar Faruque 10 BLT (HCD)-318
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 he both justification and an apology.
Md. Sirajul Islam Vs. Wahidul Haque. 11 BLT(HCD)-168
Control
“Control” in section 19(f) of The Act means that the offender must have such power over the weapon that he can direct its custody, production, use or disposal in some manner. “Control” in context means power or ability to regulate the keeping or
possession or use or disposal of the weapon. “Control” may be essential for possession and unless one has control over an article one may not be said to be in possession of it hut one can have control over an article without being in possession of it.
Babul Vs The State 13 BLT (HCD)339
Decree
A ‘decree’ by definition means the formed expression of an adjudication which so far as regards the court expression it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.
Md. Ayub Ali Vs. Bangladesh & Ors. 3BLT (AD)-146
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. 9BLT (HCD)-317
Domicile
“By domicile, we mean home, the permanent home.” Domicile has been defined as that place where a man has his true, fixed, and permanent home and principal establishment. and to which whenever he is absent he has the intention of returning. The permanent residence of a person of the place to which he intends to return even though he may actually reside elsewhere. A person may have more than one residence but only one domicile. It is his legal residence, as distinguished from the temporary place of abode, or his home.
Bangladesh Vs. Prof Golam Azam & Ors. 3BLT (AD)-3
Dwelling House
In the instant case admittedly the plaintiff is not residing or ever reside in Kha schedule property which was purchased by defendant No.2. There is no evidence that it was a family dwelling house. But it transpired that those were occupied by some other persons though under the plaintiff and defendant No. 1. It is in evidence that the plaintiff was residing at Sherpur town after the death of her husband and then she shifted to Narayanganj. So by no stretch of imagination that it cannot be found that the Kha schedule property is the dwelling house of the plaintiff.
Bina Roy Chowdhury Vs. Amullya Roy Chowdhury & Ors. 7BLT (HCD)-80
Debutter Property
With the dedication of a property to a Deity it becomes the property of the Deity and ceases to be the property of the donor forever, After the dedications is complete, a debutter property can never revert to the donor and under no circumstances it can be turned into a secular property. The character of the debutter property cannot be changed by the Shebait of anyone else.
Hindu Devilakshmi, Gobinda Jew Vs. Govt of Bangladesh & Ors. 7BLT (HCD)-133
Decision
A decision is the determination of the controversy touching facts, law and context an reaching of a conclusion.
Sirajul Islam Chowdhury Traders Lts. Vs. Sirajul Islam chowdhury 8BLT (HCD)-136
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
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 public 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 9 BLT (HCD)-221
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. 8 BLT (HCD)-94
“ex post facto”
The words “ex post facto” as appearing in Section-3(4) of the Ordinance, 2007 relates to the “Rule” of the EPR and not the “offences” committed.
Sheikh Hasina Vs. Govt. of Bangladesh & Ors 16 BLT (HCD)153
Fact of Fraud
Fact of fraud is a matter of inference from proved facts and circumstances of each case and the evidence received by the court. Each circumstance by itself may not tell much, but when a bundle of circumstances are taken together they may bring into light a fraudulent or dishonest plan to commit fraud.
Govt. of Bangladesh & Anr. Vs. Mashiur Rahman & Ors. 6BLT (AD)-73
Forgery
When a person is to be found guilty for forgery of a document, there must be an original document first, when an original document is substituted by another fabricated document, or if a document is created by a fictitious person and not by a genuine person it may be called a forgery.
S. A. Aim Vs. Dr. Golam Nabi & Anr. 3BLT (HCD)-1
‘formal defect’
The legal meaning of the word formal’ is done in due form or with solemnity; according to regular way. The expression ‘formal defect’ connotes defects of diverse kinds not affecting the merit of the case but arising out of some error made in good faith. It is a defect of form prescribed by the rules of procedure. If it goes to the root of the suit, it is not a formal defect. Even when there was no such ‘formal defect’ the Court is not powerless to grant the same prayer if justice demands.
Dil Mohammad Vs. Jamir Hossain & Ors 13 BLT (HCD)285
‘Government’
The word “Government” thus, denotes the person or body of persons administering the laws and governing the State. “Government” is the body of persons charged with the duty of governing and exercising certain powers and performing of certain duties by public authorities or officers together with certain corporations exercising public function.
M. Habibur Rahman & Ors Vs. Govt of Bangladesh & Ors. 7BLT (HCD)-327
Heba-bil-Ewaz
From the definition of Heba-bil-ewaz itself and also from the principles of law involved it is clear that the transaction of Heba-bil-ewaz is in fact a sale. Therefore, as a sale cannot be completed without price is paid, Heba-bil-ewaz also cannot be called valid unless ewaz is paid.
Md. Nurul Islam & Ors. Vs. Azimon Bewa 6BLT (HCD)-116
Heba-bil-Ewaz
The learned Subordinate Judge appear to have committed serious error of law as he considered the admission of the plaintiff that she put her L.T. 1. in the heba-bil-ewaz but he failed to consider the circumstances in which she had to put her signature and she disordered, the heba-bil-ewaz by saying that fraud having been practiced upon her and she did not know about the contents of the deed and she put her signature in good faith on the sale of 15 decimals of land and her signature was collusively used in the heba-bil-ewaz and further no exchange was proved or established. The learned Judge committed serious error of law in not considering the circumstances as such his findings are not sustainable in law. Furthermore the plaintiff as the owner and having been in possession although challenged the heba-bil-ewaz as such burden is lying upon the defendant to prove that the heba is genuine.
Jobeda Khatoon Vs. Shorab Hossain & Ors. 7BLT (HCD)-290
“Hire-Purchase”
The word “hire-purchase” is synonymous to sale by way of hire-purchase agreement. A hire-purchase agreement, as its very name implies, has two aspects. There is first an aspect of bailment of the goods subjected to the hire-purchase agreement and there is next an element of sale which fructifies when the option to purchase, which is usually a term of hire-purchase agreements, is exercised by the intending purchaser. The distinguishing feature of a hire purchase agreement is that the property does not pass when the agreement is made but only passes when the option is finally exercised after complying with all the terms of the agreement.
Govt. of Bangladesh & Ors. Vs. Mrs. Rosey Firoj & Ors. 14 BLT (AD)2O1
Iddat
Iddat (a period of waiting, a prescribed period) is a concept distinctive and unique is Quranic jurisprudence, like of which is not to be found in any other known system of Jurisprudence. The question of iddat for women arises on other occasions as well as on the death of husband, on periods of abstinence from sexual intercourse and on periods of abandonment of prayers and fasting by women, but it arises also when there is a pronouncement of talaq. The purpose of iddat after divorce is four fold, first, to allow the parties to reconciliate and to give the divorce a go by in the cases of Talaq Ahsan or Talaq Hasan, secondly, to ascertain whether the woman is carrying any offspring of her husband in the womb or not, so that the legitimacy of the child remains beyond dispute, thirdly, to prevent re-marriage of the woman during the period of iddat in order not to forestall reconciliation and to avoid future controversies on legitimacy and fourthly, to make arrangements for the maintenance of the woman during the period of iddat.
M. Hefzur Rahman Vs. Shamsun Nahar Begum & Ors. 7BLT (AD)-33
“In accordance with”
Black’s Law Dictionary (Abridged 5th Edn.) defines “accordance’ as “agreement, harmony, concord, conformity. “Steroid’s Judicial Dictionary, 4th Edn., Vol. 3, gives 8 illustrations of the use of the words “in accordance with’ one of which means “in substantial compliance with’. Biswas on Encyclopedic Law Dictionary, 2nd Edn., quotes Mahesh Chandra v. Tara Chand Modi, A1R1958A11374, to say, “The words “in accordance” mean in conformity or as provided for’“. So does Mitra in Legal and Commercial Dictionary, 4th Edn., Vol. 20A, ‘in accordance with, is used as an equivalent of ‘not repugnant to’, ‘not in conflict with’ or ‘not inconsistent with’.
Bangladesh Air Service (Pvt) Ltd. Vs. British Airunys PLC. SBLT (AD)-242
Injunction
An injunction is a writ framed according to the circumstances of the case commanding an act which the court regards as essential to justice or restraining an act which it esteems contrary to equity and good conscience. In other words, an injunction is a form of equitable relief and it is to be issued in aid of equity and justice and not to aid injustice.
M/S Gloland Pvt Ltd. Vs. Govt. of Bangladesh 7BLT (HCD)-214
Law on Injunction—Balance of convenience and inconvenience
The prayer of the defendant for temporary injunction—The question is if defendant no. 2 appellant has made out a prima facie case in support of the prayer against plaintiff respondent no. 1 on whose behalf there is an affidavit-in-opposition in respect of handing over and taking over charge of the office of the Managing Director. This paper dated 4.7.1996 is about handing
over charge of the office of the Managing Director to plaintiff respondent no. 1 Khawja Zaki Ahsanullah by M.R. Siddique the Company Secretary, who according to plaintiff-respondent no. 1, was acting as Managing Director in his absence.
There is another paper dated 24.12.1996 indicating that plaintiff-respondent no.1 has correspondence with Sonali Bank to get credit for running the affairs of the Jute Mills and this letter was sent by the Bank to plaintiff- respondent no.1, who was addressed as Managing Director of the Jute Mills on 24.12.1996. There is another letter from the Commissioner of Customs and Excise dated 28.8.1997 informing-respondent no.1 that it is not the responsibility of the collect orate determine as to who is the legal Managing Director of the Mills and this paper addressing the Managing Director of MIs. Nowab Askari Jute Mills
is addressed and sent to twin House, Shahbagh, Dhaka which seems to be the address of plaintiff-respondent no.!. All these papers are indicative of the fluid condition of the affairs of the Jute Mills and of the Company. The trial Court will have to consider all aspects of the case and take evidence to decide and dispose of the suit at an early date. At the moment it appears that the appellant has failed to make out a prima facie case in support of his prayer for temporary injunction. In this view of the matter, we need not consider the balance of convenience and inconvenience.
Nawab Khawja Habibullah Askari Vs. Khaja Zaki Ahsanullah & Ors 6BLT (HCD)-196
An Injunction
An injunction is an equitable relief, a strong arm of enquiry. 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. 8BLT (HCD)-307
Interest and Compensation
The words interest and ‘compensation’ may be used interchangeably. Interest is compensation allowed by law or fixed by the parties, or permitted by custom or usage, for use of money of another for the delay in paying back the money borrowed after it becomes due.
Uttara Bank Ltd. Vs. Mrs. Ayesha Siddique & Ors. 12 BLT (HCD)-106
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 the society shutting their eyes and closing their ears no evil hence cannot afford to say that “we see 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
Lawfully
Section 70 of the Contract Act—Here the word “Lawfully” must not to be read as surplasage and must be treated as an essential part of the requirement of the section. Lawful relationship arises not because the party claiming compensation has done something for the party against whom the compensation is claimed but because what has been done by the former has been accepted any enjoyed, by the latter.
A.K.M. Shahidul Haque Vs. Deputy Commissioner & Ors 12 BLT (HCD)236
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. Hafizul Islam Vs. Govt. of Bangladesh & Ors. 11 BLT (HCD)-65
Licensee’s Right
A licensee enjoys such rights that have been conferred upon him under the licence issued or granted by the statutory competent authority and therefore a licence is subject to terms and conditions of the provisions of the Statute, sub-ordinate legislation or bye-laws, rules made thereunder.
Md. Solaiman Khan & Ors Vs. Govt. of Bangladesh 12 BLT (HCD)342
“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
Words and Phrases
“May be true and must be true” conjecture and sure conclusions Mental distance between “may be true” and “must be true” and distinction between “conjecture” and “sure conclusions” are to be gathered on the touchstone of dispassionate Judicial scrutiny based upon a complete and comprehensive appreciation of features of the case as well as
quality and credibility of evidence and materials brought on record
Muhibur Rahman Manik & Anr Vs. The Sate 15 BLT (HCD)279
“Misconduct”
Arbitration Act -The word “Misconduct’ means mishandling of Arbitration proceeding causing displacement of Rules of Justice and lack of integrity and impartiality , any neglect of duty on the part of the Arbitrator which is likely to lead a substantial miscarriage of Justice.
Chittagong Steel Mills Ltd & Anr. Vs M/s MEC & Ors. 13BLT (HCD)230
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 to them 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 make 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 into 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. Habib Bank Ltd. 10 BLT (HCD)-246
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 the people to express their personal views on and 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 modem world, news media is one of the strong pillar which furnishes informations of loopholes of the administration and its machineries.
Daily Star & Protham Alo Partika Vs The State. 9BLT (HCD)-91
Non-Speaking Order
While the petitioner was serving as Private Secretary to the Minister for Labour and Manpower he was served with an order of dismissal on 18.6.84 under the Martial Law Order No. 9 of 1982. Petitioner filed a review petition against the order of dismissal on 20.6.84 to the President and CMLA, that before the review application was disposed of the post of CMLA was abolished—vide notification dated 12.10.91 respondent No. 2 constituted a forum to examine and consider petitioner’s review application— the forum in a meeting on a careful consideration of the petitioners case found nothing against the petitioner and recommended for his reinstatement on setting aside the order of dismissal, and petitioner was informed about the rejection of the review application on 1.2.94—Held: In the instant case from the impugned order we find that no reason whatsoever was assigned in refusing to accept the recommendation of the committee except for a general observation that no sufficient grounds for the acceptance of the review was found. This in our opinion is a slipshod and non-speaking order which offends the idea of justice.
Md. Gholam Mostafa Miah Vs. Ministry of Establishment & Ors. 7BLT (HCD)-127
‘Petitioner’
The term ‘petitioner’ as quoted in Article 49(4) of the Order, 1972 as (amendment) does not mean the petitioner himself and may be some body on his behalf and this part of the said order in our view is directory.
G.Q. Chowdhury Vs. A.B.M. Fazle Karim Chowdhury &Ors 13 BLT (AD)12
Pre-emption
Pre-emption is a kind of purchase in preference according to category. When the question of purchase comes, the seller or transfer must have some right or saleable interest in the holding without that what the buyer will get by pre-emption, whatever may be the nature of transfer. So against fictitious transfer pre-emption cannot be allowed. If preemption is allowed in respect of fictitious transfer, it will illegally affect the share and interest of the real co-sharers, which cannot be allowed by a court of law.
Md. Solaiman Ali Sheikh & Ors. Vs. A. B. Siddique Sheikh & Ors. 5BLT (HCD)-143
Prima Facie
The term “prima facie” is not specifically defined in the Code of Civil Procedure. The judge made law or the consensus is that in order to satisfy about the existence of “prima facie” case, the pleadings must contain facts constituting the existence of right of the plaintiff and its infringement in the hands of the defendants. A good “prima facie” case means a case where the plaintiff has a fair question to raise at the trial and the suit is not likely to fail on a technical flaw.
M/S Gloland Pvt. Ltd. Vs. Govt. of Bangladesh 7BLT (HCD)-214
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 9 BLT (HCD)-393
‘Pro-forma promotion”
The respondent stood first in the batch of 1965 E.P.C.S (Ex) class-1 and while serving as section officer in the Ministry of Health and Family Planning he was removed from service, which he challenged in title suit and obtained a decree—The Government reinstated him as senior Assistant Secretary which was equivalent to the position he was holding at the time of his removal—with regard to promotion the Appellate Tribunal held that the respondent is entitled to proforma promotion” from the date of the promotion of his Juniors—Held: The Appellate Tribunal was not well-founded in law in granting pro-forma promotion
to the respondent in support of which we find no legal basis.
Government of Bangladesh Vs. Shamsuddin Ahmed 7BLT (AD) -260
Public Interest
It appears that the reason for cancelling and issuing fresh auction by the impugned notice was made for the reasons that the bid money was inadequate in comparison with the market value in the locality and the right reserved by respondents as per rule/clause 8 of the terms of the previous auction notice they have published the impugned notice— Held: On such facts of the case we find that the decision of the respondent was bonafide for public interest and not arbitrary.
Dr. Md. Habibullah Vs. Rajdhani Unnayan Kartipakha & Ors. 7BLT (HCD)-8
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 PIL 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. PIL 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-à-vis the private interest.
E. T. V. Ltd & Anr. Vs. Dr. Chowdhury Md. Hasan & Ors. 11 BLT. (AD)-18
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
Public Purpose
Any purpose which benefits the public or a section of the public is a public purpose, with the onward march of civilization the concept of public purpose has been broadening. If the purpose serves some public use or interest as opposed to the particular interest of an individual the purpose is public.
Brahmanbaria Pourashava Vs. Ministry of Land & Ors. 7BLT (AD)-95
“Pendency of proceeding”
Any proceeding can be pushed forward even to the last ladder of hierarchy that is before Apex Court the Appellate Division and Proceeding before Apex Court for a final decision shall demonstratively be, also, a proceeding.
Md. Mafizul Islam Sarker Vs. Sunil Chandra Biswas & Ors. 12BLT (HCD)-169
Resident
Any person who occupies a dwelling within the State, has a present intent to remain it in the State for a period of time, it signifies one having a residence, or one who resides or abides.
Bangladesh Vs. Prof. Golam Azam & Ors. 3BLT (AD)-3
The Meaning of “reasonable notice”
A “reasonable notice” means a reasonable length of time — reasonable notice will depend upon the facts and circumstances of each case.
Commissioner of Customs Vs. Giasuddin Chowdhury & Anr. 5BLT (AD)-274
Reasonable order
The application was rejected by the impugned order saying that it was made clear in the earlier order that no further time would be allowed—Held: It is wholly reasonable order.
S. M. M. Khansur & Anr. Vs. Janata Bank 7BLT (AD)-2
Reasonable cost of repairs
The reasonable cost of repairs is the second higher watermark in measuring the indemnity in respect of unprepared damage. This is a necessary and inevitable exercise, unless the parties had already arrived at a negotiated figure.
Sadharan Bima Cor. Vs. Bengal Liner Ltd. & Anr. 5BLT(AD)-69
The records of the case
The words the records of the case appearing in Section -241A mean the records of the prosecution.
Mohammad Nazrul Islam Chowdhury &Ors. Vs. Abul Bashar Chowdhury & Ors. 8 BLT (HCD)-220
Res-Judicata
Title suit 71 of 1976 of the contesting defendant was a suit for declaration that the order passed by the C.O. (Ref) in Redemption case 2 of 1973, is illegal without jurisdiction and non-permanent injunction. The suit of the plaintiff being Title Suit 8 of 1989 is for redemption of mortgage and for khas possession and for declaration that the decree passed in Title Suit 71 of 1976 is illegal and not binding upon the plaintiff. Not only cause of action and subject matter are different.
Held:
The decision on Title Suit 71 of 1976 is not bar, by res-judicata, in deciding the present Title Suit 83 of 1989.
Rajiuddin Chawdhury Vs. Suruj Ali 3BLT (HCD)-135
‘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
Right to Freedom of Speech
Every citizen has the right to freedom of speech and expression as guaranteed by Article 39 of the Constitution. This right is not absolute, but subject to reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an
offence.
Halima Farzana Vs. Bangladesh & Ors. 7BLT (HCD)-86
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. Shorab Ali Vs. Gazi Abdur Rashid & Ors. 9 BLT(HCD)-433
‘Salary’
The word ‘Salary’ does not include the term ‘pension’. Those terms denote and confer distinct and different rights.
Chief Election Commissioner & Ors Vs. Bangladesh & Ors. 13 BLT (HCD)29
Serious
In Special Powers Act- The words ‘serious’ may mean and include to be grave, critical, important, approaching the critical or dangerous concurred with wightly matters. The said meaning are not exhaustive but narrative one. Serious in nature would always depend upon the facts and circumstances of a particular
case.
Mrs. Arati Deb Vs.Govt. of Bangladesh & Ors. 12 BLT (AD)205
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 consequences that would follow from the infringement of the direction. Keeping these principles in view we are of the opinion that the provision of Order 11, Rule 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 & Ors Vs. Shantimoy 8BLT (AD)-67
Show Cause Notice
A show cause notice is not a technical requirement or an idle ceremony. The notice must not be Vague or in bare language merely repeating the language of the statute—The principle of a meaningful show cause has been highlighted when a person is called upon to meet or explain some charges brought against him — in not giving specific facts with particulars in the show cause notice, the rule of fairness which is a part of the principle of natural justice has been offended.
Govt. of Bangladesh & Ors Vs. Md, Tajul Islam 5BLT (AD)-186
A Statement of accounts
A statement of accounts to be filed in court must show the details and giving debit entries, and if debit entry relates to interest then setting out also the rate of interest and the period for which, the interest was charged.
Uttara Bank Ltd. Vs. Mrs. Ayesha Siddique & Ors. 12BLT(HCD)-106
“Subject to”
In Black’s Law Dictionary, 5th Edition, “subject to” means ‘liable, subordinate, subservient, inferior, obedient to, governed or affected. by, provided that, provided, answerable for. Biswas and Mitra (afore quoted) quote Balkrishna v. State of Madras, A1R1961 (SQ l152, to say, “The words ‘subject to” have reference to effectuating the intention of the law and the correct meaning is “conditional upon’. So does Perm’s Judicial Dictionary, Vol,(iv), quoting another unreported Indian Supreme Court case. Words and Phrases (afore quoted), Vol. 40, describes “subject to” as meaning ‘conditional upon’ or ‘depending on’. or ‘subordinate to’ or ‘inferior to’.
Bangladesh Air Service (Pvt.) Ltd. Vs. British Airways PLC. 5BLT (AD)-242
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
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 cannot 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
Waiver
“Waiver’ is, thus, an act of waiving, the act of intentionally relinquishing something as a right, the act of not insisting upon such right, claim or privilege belonging to person who executes the same, the voluntary surrender of a right, the voluntary abandonment or surrender of a right known by him to exist. “Waiver” is one of the most familiar of the Doctrines of law, a technical Doctrine of very broad and general application.
A. Latif and Company Limited Vs. The Project Director & Ors 12 BLT (HCD) 311
“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
Whether the Plaintiff must get a decree on the basis of their acquisition of title by adverse possession by possession of the suit land for more than 12 years
Admittedly the ‘K’ schedule land was purchased by Shiv Chandra Majumder by a registered kabala exhibit-I which was produced by the respondents. There is also no dispute that by way of inheritance Rajani Kumar Majumder and Gopal Chandra
Majumder become the owners in the suit land. There is also no dispute that an application was filed praying for restoration of possession of the suit land against the respondents in Miscellaneous case No. 61 of 1964 — The respondents claimed possession since March 30, 1948 and as such they acquired title in the suit land by continuous possession for more that the statutory period before filing of the Miscellaneous Case No. 61 of 1964.
Hafez Mohammad Abdul Haque Vs. Ayub Ali & Anr. 4BLT (AD)-28
Whether the payment has to be established before delivery or the delivery has to be made before payment is established
By a Memo of Agreement (MOA) defendant No. 1 a British Shipping Company, agreed to sell the vessel in question to the buyer- plaintiff. Though the plaintiff performed his part of obligation in all respects, the defendants failed to perform their part of obligation and as a result there was a breach of contract on the part of defendant No. 1, the plaintiff-petitioner claimed in the money suit compensation and damages — The plaintiffs suit for compensation and damages was partly decreed by the Trial Court. The Trial Court held that the seller acted illegality by not making physical delivery of the vessel to the buyer-plaintiffs as per terms of MOA—on appeal the High Court Division rejected the contention of the plaintiff that acceptance of the vessel means acceptance on delivery and allowed the appeal — Held: The High Court Division has rightly held that in spite of clause 5 of the MOA the plaintiff had no obligation to accept the vessel in terms of clause 3 of the MOA, to see that the vessel answers the description given in the MOA. This provision was apparently inserted to ensure that the rejection of the vessel does not take place after delivery is made without payment Clauses 13, 15 and 18 of the MOA will come into operation after establishment of the payment mentioned in clause 3 which provides that the moneys secured by the L.C. in order to be releasable must be supplemented by production of a number of documents, some by the seller, some by the buyer. The buyer has to produce a document of acceptance of the vessel, which the buyer did not.
M/S N. I. Khan & Co. (Pvt.) Ltd. Vs. Festasi Shipping Co. S. S. & Ors. 4BLT (AD)-33
Whether the High Court Division remanded the suit to the trial court
The suit was decreed both by the trial court and by the lower appellate court — Held: It appears that the First Commissioner’s report was not challenged by the defendant and the same was accepted by the trial court. It is on record that the Second Commissioner’s report was also submitted but none of the courts below considered the Second Commissioner’s report which contradicts the First Commissioner’s report to some extent — The learned Single Judge of the High Court Division rightly found that non-consideration of the Second Commissioner’s report has affected the decision in the case and remanded the suit to the trial court for proper adjudication.
Md. Shoibur Rahman Vs. Mojibur Rahman 4BLT (AD)-169
Whether the petitioners given any right for implementation of the judgment and order of the Appellate Division and the Administrative Appellate Tribunal given in one Atiqullah’s case
The petitioners have not been given any right under the Administrative Tribunals Act 1980 to move the Administrative Tribunal to implement the judgment and order of the Appellate Division and the Administrative Appellate Tribunal given in respect of a different person who filed successive cases not in a representative capacity or in the nature of a group or class action but as an individual applicant agitating his own individual grievances.
Md. Hafizuddin & Ors Vs. Bangladesh Bank & Anr. 5BLT(AD)-179
Whether the High Court Division fell into an error of law in sending back the case to the trial court for a fresh decision after setting aside the concurrent judgment of the two courts below
It appears that learned Single Judge was of the view that some common question of acquisition of right and title in both the schedules of the lands were involved in the case and that unless the suit be remanded for retrial in respect of schedule 2 land as well there would be a chance of conflicting decisions. He was also of the view that the trial court and the appellate court arrived at their findings on this schedule wrongly by refusing to accept some relevant documents into evidence and without proper consideration of the evidence on record, causing thereby a miscarriage of justice. Accordingly the learned Judge came to the conclusion that the schedule 2 land should not be excluded from the scope of the order remand passed by the lower appellate court. We do not find any good reason to interfere with the impugned judgment of the High Court Division.
Bakhtiar Meah & Ors. Vs. Matika Khatoon & Ors. 5BLT (AD)-105
Whether the High Court Division confirm the trial court’s assessment of compensation merely “for ends of justice”
In the present case the appellants are not challenging the quantum of damages awarded. They are contending that there is no legal evidence worth the name in determining the very basis on which compensation has been assessed. Both the High Court Division and this Division too, upon granting leave, are competent to decide this question. We have held that the High Court Division, before endorsing the amount of compensation as allowed by the trial court totally failed to consider the evidence on record in so far as the plaintiffs claim of damages in schedule B of the plaint is concerned and also overlooked that there
was no legal evidence worth the name in support of the plaintiffs claim of alleged loss and damage. We have also found that there was no evidence of actual loss and damage sustained by the plaintiff and the High Court Division cannot confirm the trial court’s assessment of compensation merely ‘for ends of justice’ for assessment of compensatory special damage is a legal exercise based on evidence on record and not an exercise in compassion and sympathy.
Serajul Islam Chowdhury & Ors. Vs. Md. Jamal Abedin & Ors. 5BLT (AD)-158
Whether the Exception 1 to Section 28 of the Contract Act validated conferment of exclusive jurisdiction by the parties on English Courts ousting the jurisdiction of local Courts
There is nothing in Exception 1 to section 28 of the Contract Act prohibiting the parties to a contract from choosing a foreign forum under the supervision of a foreign court for arbitrating its disputes. Such contract does not offend the main provision of section 28, because the local courts still retain the jurisdiction to decide the list between the parties The appellant is free to file a suit for damages against the respondent in the local court. The respondent is also free to ask for a stay of the suit, pending arbitration, and it is for the local court having regard to all circumstances, to arrive at a conclusion whether sufficient reasons are made out (by the plaintiff) for refusing to grant a stay. (Michael v. Serajuddin, A1R1963 (SC)l044 and also MA. Chowdhury vs. Messrs. Mitsui O.S.K. Lines, Ltd., 22DLR(SC)334.
Bangladesh Air Service (Pvt) Ltd. Vs. British Airways PLC. 5BLT (AD)-242
Whether an annual lessee under the Government has legal right to challenge the impugned judgment and order when his lessor has not done so
Held:
The petitioner claims himself as an annual lessee under the Government in respect of the disputed land. The Govt. of Bangladesh does not challenge the impugned judgment and order of the High Court Division. The relevant authority on being satisfied that the original owner, Pran Gopal, is a Bangladeshi decided that his property was wrongly listed as vested property and accordingly passed the order to release the property from the list of vested property in exercise of their authority under the relevant law. The petitioner as a temporary lessee has no legal right to challenge the impugned judgment and order when his lessor has not done so.
Md. Afazuddin Halder Vs. Abu Mohammad Siddique & Ors. 5BLT (AD)-143
Whether the High Court Division fell into an error of law in setting aside the order of remand made by the appellate court and restoring the decree of the trial court
High Court Division could not restore the decree of the trial court without consideration of the evidence on record on merit.
Sree Chittaranjan Chakraborty Vs. Md Abdur Rob 5BLT (AD)-135
Whether the observations made by the High Court Division is bind to the trial court
Held: In the instant case such observations do not bind the trial court and it is free to take its own decision on the basis of materials placed and submissions made
before it.
Mrs. Zeba Khan Vs. Play Pen School Anr. 5BLT (AD)-142
Whether the statutory show cause notice as served on the respondent under section 14(1) of the Emigration Ordinance, 1982 is legal and valid
By majority decision the order of cancellation of the respondent’s licence (Annexure “H”) does not show that the Govt. was either “satisfied” as required under section 14(1) or that the respondent’s long representation was ever brought to its notice. The order, on the face of it, thus, was a bad order in the eye of law.
Govt. of Bangladesh & Ore Vs. Md. Tajul Islam 5BLT (AD)-186
Whether the executing court can remit the interest as decreed
It is well-settled law that the executing Court in required by law to execute the decree as it stands and it cannot go beyond of the decree in any way.
Mir Amanullah Vs. National Cold Storage Ltd. & Anr. SBLT (HCD)-88
Whether the District and Sessions Judge to dispose of contempt matter
The District and Sessions Judge had no jurisdiction or authority to dispose of contempt matter in view of the contempt of Court Act.
Subbatara Begum Vs. Ansaruddin. 5BLT (HCD)-191
Whether the Jurisdiction of the Artha Rin Adalat to entertain an application under Article 33 of the Bangladesh Shilpa Rin Sangstha Order, 1972 (P.O. No. 128 of 1972)
A Subordinate Judge acting as an Artha Rin Adalat cannot entertain such an application directly.
Bangladesh Shilpa Rin Sangstha Vs. Fashion Wear Ltd. 6BLT (AD)-124
Whether Section 24 of the Non-Agricultural Tenancy Act, 1949 is applicable to lands of Dhanmondi Residential Area
The object of section 85(2) of the Act was to retain control over non-agricultural land held by a tenant under the Government unencumbered by the provisions of the NAT Act. Section 81A(2) stated positively how the rights and liabilities of non-agricultural tenants other than those who have become tenants under the Government by virtue of compulsory acquisition of land shall be determined. The NAT Act has not been mentioned to be a governing law in respect of such tenants of non-agricultural land under the Government, Hence, on both accounts, under section 85(2) of the NAT Act and section 81A(2) of the SAT Act, the ouster of NAT Act from the categories mentioned therein are complete. Section 24 of the NAT Act has no manner of application to lands of Dhanmondi Residential Area.
Md. Mosaddeque Hossain Vs. Dr. Esmat Mirja & Ors. 6BLT(AD)-180
Whether the Martial Law order dated 8.11.86 “with immediate effect” communicated vide dated 4.1.87 dismissing the respondent from service was correct
We find it well-nigh impossible to accept, rather physically impossible to accept the proposition that an order affecting a person would be effective as against that person without even informing him about the order by merely giving the order an immediate effect. If it were to be so, then an absurd situation will arise; for example, if an order of dismissal is passed with immediate effect and kept under the pillow of the maker, then the dismissed person cannot attend office from the next day because it has become effective as soon as the order was passed. Nothing can be more offensive to common sense than to suggest that the
order will be operative without the person knowing that an order was passed against him—We think it is a sound proposition that an order to be effective must at least be communicated to the person concerned and the date of actual receipt is not material for the said purpose. In the present case, it is apparent that there was no communication of the order of dismissal until
4.1.87. MLO No. 9 having been repealed in the meantime, the light had gone out of the order. The order was not communicated to the respondent when there was light in it. The respondent was communicated about the order at a time when no light could be put in the order. Therefore the order of dismissal qua the respondent was not an order under the MLO. It could not be effective against him at any time.
Bangladesh Vs. Mahbubuddin Ahmed 6BLT(AD)-185
Whether written Kabinnama or its registration, is essential in order to establish the validity of Muslim marriage
If the marriage is otherwise valid, absence of written kabinnama or its registration does not invalidate the marriage.
Md. Chan Mia Vs. Rupnahar 6BLT (HCD)-92
Whether a need to protect the public servant from the propensity of politicisation of administration
In the present cases Commander Pilots working in a commercially-oriented Airlines are not being selected for promotion to the selected post of Deputy Operations Manager. Deputy Secretaries are being considered for promotion to the selecte posts of Joint Secretary. Additional Deputy Commissioners and the like are being considered for a promotion to the selected posts of Deputy Secretary.
They have already put in a number of years in Government service which is basically different from working as a Pilot in a Commercial Airline. Evaluation of their efficiency, conduct, discipline, comprehension, initiative, zeal to work, honesty, personality and various other requirements of service have been recorded each year in their respective ACRs. That ought to be the most dominant and persuasive document for the purpose of evaluating the candidates’ eligibility for the promotion post. The marks fixed for interview should be minimum so as not to upset the accumulated credits achieved by the candidates over the years in their respective ACRs by a momentary impression created in the minds of the Interview Board before which the candidates cannot possibly appear for more than a few minutes. There is a strong need to protect the public servant from the propensity of politicisation of administration by a party Government by keeping the marks for interview as minimum as possible so that the scope of arbitrariness and the possibility of pick and choose are absolutely minimized. We would therefore agree with the ultimate decision of the learned majority Judges of the Special Bench that allocation of 40% marks for interview in the context of the situation obtaining in our country and in the context of the finding that the guidelines were arbitrarily and that 15% marks for interview under the circumstances would be a safe marking system for protecting the neutral character of public service.
Ministry of Establishment Vs. Shafiuddin Ahmed & Ors. 6BLT (AD)-22
Whether that there was no cause of action for filing of the suit as the threatened dispossession by the defendant No. 1 does not exist after his death
The question of fresh threat from the heirs of defendant No. 1 does not arise as the suit was filed at a time when there was definite cause of action as asserted in the plaint as such the learned Single Judge was not correct in holding that there was no continuing threat to file the suit.
Most Saitan Bibi & Ors. Vs. Chairan Bewa & Ors. 6BLT (AD)-157
Whether the evidence on record has been duly considered in consequence of which the trial court’s judgment was reversed
Held:
The learned Judge’s of the High Court Division without adverting to the material evidence on record held that in hot haste before the completion of survey report the plaintiff destroyed the stock of shrimps and prawns. In one sentence the learned Judge’s of the High Court Division held that “the evidence of PWs 2-5 didn’t inspire any confidence.” This is indeed a perfunctory assessment of the evidence on record by a court of fact and consequently the modification of the trial Court’s judgment has been done in a slipshod manner.
Chalna Marine Products Ltd. Vs. Reliance Insurance Ltd. 6BLT (AD)-234
Whether the Bainapatra deeds are genuine or created documents through acts of forgery
The Bainapatra deeds were alleged to have been executed on 22.10.71 and 13.12.71. On a close scrutiny of the Bainapatra deeds it appears that one Bainapatra deed had been written on a stamp paper and another written on a cartidge paper purchased in the year 1969. Exhibit-8 is a kabala deed dated 4.8.71 which was vexecuted by defendant No. 7 in favour of the father of defendant nos. 1-5. It is recited in the said kabala deed that following the alleged agreement, defendant No. .7 transferred the suit land in favour of the father of the defendant nos. 1-5. Ethibit-4 is a deed of reconveyance executed by the father of defendant nos. 1-5 in favour of defendant No. 7. From the above, it reveals that at the time of the alleged execution of the Bainapatra deeds, the defendant No. 7 was not the owner of land, and, as such, the Bainapatra deeds by a person who was not the owner of the land got no legal force and also legal existence in the eye of law. In the written statement filed on 27.9.1996 by the defendant nos.l-5, defendant Nos. 4 and 5 had been shown as minors but in the Bainapatra deed exhibit-F, it was not at a!! recited that the defendant No. 5 had been minor at that time. Exhibit-I, a School Certificate duly proved by the Head Master of the concerned school is an evidence to show that the defendant No. 5 was born only on 24.6.1974. The matter, thus, became manifestly clear that the defendant No. 5 was not at all born on the date of the alleged execution of Bainapatra i.e., in the year 1971. Both the courts below on a proper, consideration and discussion of the legal evidence and other materials on record came to the positive finding that the Bainapatra deeds Exhibits-F and Fl are totally false and are acts of forgery. On consideration of the materials en record I do not find any reason to disagree with above the findings arrived at by the courts below.
Zamiruddin Ahmed Vs. Md. Ziaul Haq & Ors. 6BLT (HCD)-5
Whether fraud was practiced in obtaining the documents
In the present case, from the fact that it was alleged by the defendant that the executant who is an illiterate and unsophisticated rural lady was identified by her husband at the time of registration but it is in evident that she was allegedly identified by a different person. So there was none to give independent advice to the executant of the document—It is there that the documents were obtained by fraudulent means.
Barada Sundari Vs. Makhan Chandra Das 6 BLT (HCD)-210
Whether the order of the learned Munsif appears to be the non-application of a judicial mind
Since the learned Munsif received the petitioners’ application for staying further proceedings of the suit on 6.5.1987 for enabling the petitioners in move the High Court Division against the rejection of their prayer for being added as parties to the suit, in all fairness and in conformity with judicial courtesy, the learned Munsif ought to have allow d some reasonable time to the petitioners to move this court for vindication of their observance and he should have stayed his hands off the proceeding for the time being. After disposal of the suit by order dated 6.5.87 there remainders title sense in fixing 13.5.87 for considering the petitioners’ application for staying further proceedings of the suit. The order of the learned Munsif appears to be the result of a bundle of confusions and, non- application of a Judicial mind and it cannot be approved.
Mst. Halima Khatoon & Ors. Vs. Nurul Huda Mondal & Anr. 6BLT (HCD)-1
Whether Impugned judgment is not a proper judgment of reversal
In the instant case the appellate court did not advert the reasonings of the trial court and also did not discuss the material evidences which were considered by the trial court and these hit the root of the merit of the case—and it also appears that the appellate: court also did not comply with the requirements of Order 41 Rule 31 of the Code of Civil Procedure in delivering the impugned judgment—Held: The impugned judgment and decree is not a proper judgment of reversal— relied on 1997 BLT (AD) 15.
Md. Harejuddin Mondal Vs. Md. Palu Sarder & Ors. 7BLT (HCD)-229
Whether the High Court Division was wrong in relying upon the firisti, Ext-i, in coming to the finding of relationship of land lord and tenants between the parties when the original documents claimed to be filed by the plain-tiff were not on the record
The learned Single Judge of the High Court Division, following the trial court, committed serious error of law in relying upon Ext. 1, a certified copy of the firisti, because a firisti is no evidence of the contents of the documents filed. Consequently, he wrongly held that there exists relationship of landlord and tenant between the parties.
Chandan Mondal & Ors. Vs. Md. Abdus Samad Talukder & Anr. 7BLT (AD)-223
Whether the Government, aggrieved by the observations of the Appellate Tribunal that the circular dated 28-7-76 was only for executive guidance having no statutory force
We find that in the facts and circumstances of the case the Appellate Tribunal need not have gone into the question as to whether the circular in question was only for executive guidance with no statutory force. It was enough for the purposes of the case to decide whether the respondents were entitled to a show cause notice before their appointments were cancelled in view of the fact that they were appointed by the appointing authority himself and that they had no hand in the procedural mistake. Both the tribunals below having held concurrently that the respondents had acquired a vested right on being appointed to the post of steno-typist on getting letters of appointment from the appointing authority and that their appointments could not be cancelled unilaterally it was not necessary to further explore whether the circular in question had any statutory force or not.
Government of Bangladesh Vs. Md. Abdul Male Miah & Ors. 7BLT (AD)-266
Whether the document cannot be considered as antedated
Use to different pen and ink cannot be a reason to believe that the document is antedated — the document cannot be considered as antedated only because the schedule was written by a different pen using different ink.
S. J. Chowdhury & Ors Vs. Abdul Jabbar & Ors. 4BLT (HCD)-63
When the prayer for sending a disputed document to a hand writing expert for examination be rejected
In title suit the plaintiffs seeking a declaration that certain khatians in favour of the defendants were wrong—for which they want to be examined by an expert the petitioners did not take any step for such examination when they got knowledge about the disputed document of the defendant and that the petitioners belated prayer for expert examination be rejected.
Abdul Latif & Ors. Vs. Altafur Rahman & Ors. 2BLT (AD)-56
On an application seeking retirement the Corporation released the respondent from the service with all financial benefits. Whether the respondent can challenge such release order and High Court Division can put him back in service on a writ petition.
Bangladesh Parjatan Corporation. & Ors. Vs. Md. Mafizur Rahman & Ors. 2BLT (AD)-49
Whether Partial Partition Maintainable
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 partial partition allowed, where it is not proved that the parties will be prejudiced or in convenience by such partition.
Safaruddin & Ors. Vs. Faziul Haq & Ors. 5BLT (AD)-129
Whether the statutory show cause notice as served on the respondent under section 14(1) of the Emigration Ordinance, 1982 is legal and valid
By majority decision — the order of cancellation of the respondent’s licence Annexure “H” does not show that the Govt. was either “satisfied” as required under section 14(1) or that the respondent’s long representation was ever brought to its notice. The order, on the face of it, thus. was a bad order in the eye of law.
Govt. of Bangladesh & Ors. Vs Md. Tajul Islam 5BLT(AD)-186
Whether a company take money as loan and give interest
Company not being a financial institution cannot take money as loan and give interest. Under Company Law if money is required by the company it may take it by way of issuing debenture and pay interest etc. The company cannot make payment either by way of interest or otherwise unless sanctioned by law.
A. K. M. Abdul Latif Vs. M/S Banani Metal Ltd. 7BLT (HCD)-258
Whether any conflict between the Companies Act and the Trade Organisations Ordinance, 1961
Held: I am of the view that in the case of a trade organisation, provisions of the Companies Act shall be applicable, subject to the provisions of the Trade Organisations Ordinance. Thus I find no conflict between the Companies Act and the Trade Organisations Ordinance, 1961.
Ibrahim Cotton Mills Ltd. Vs. Chittagong Chamber of Commerce & Industry Ltd. & Ors. 7BLT (HCD)-152
Whether the High Court Division was wrong in directing the release of the goods on payment of duty at a confessional rate without the condition of furnishing bank guarantee for the balance to protect the interest of public revenue.
The interim order passed by the High Court Division will be subjected to furnishing of a proper bank guarantee by the writ petitioner for the balance duty that it may be called upon to pay ultimately.
The Commissioner of Customs Vs. Partex Beverage Ltd. & Anr. 7BLT (AD)-23
Whether the supplementary duty can be imposed upon the goods imported by the petitioner in Law
The High Court Division in rejecting the application for stay was of the opinion that this is precisely the subject matter of the Rule Nisi itself. If the duty is paid it will be added to the value of the goods and the petitioner will be at liberty to sell the goods to the customers with the added value; but if the petitioner succeeds in making the Rule Nisi absolute, then they will get refund of the excess amount paid—we endorse the reasonings given by the High Court Division in rejecting the application for stay.
Shah Dairy Products Ltd Vs. Commissioner of Customs & Ors. 7BLT (AD)-231
Whether the High Court Division upon total misconception of plaintiffs case and by making out a third case under section 16 of the Land Acquisition Act, 1894 acted illegally in setting aside the decree of the lower appellate court and in decreeing the suit.
Having considered the admitted facts that the suit land along with other lands had been acquired by the Government in 1941-42 for the purpose of setting up of Noakhali Sadar Head Quarters and that thereby the Government became its owner and the accordingly both R.S. and S.A. record have been prepared in the name of the Government, the lower appellate court rightly held that the plaintiffs was have no right, title and interest in the suit land have also no locus standi to question the lease granted by the Government of its khas land to defendant No.1. The lower appellate court further held that in respect of the acquired land, the court cannot direct the Government to lease out the suit land to the plaintiffs simply because their predecessors—in interest as the original owners had been in possession even after acquisition. It does not appear either from the judgment of the trial court or from the lower appellate court that the plaintiffs had ever made out any case under section 16 of the Land Acquisition Act, 1894, namely that no award regarding compensation for acquisition of the land was prepared by the Government or the original owners did not receive any compensation for acquisition in question. It appears that the learned Judge of the High Court Division upon making out a third case, on consideration of section 16 of the said Act, has wrongly reversed the decree of the lower appellant court and decreed the suit wrongly holding, inter alia, that although the land had been acquired by the Government as far back as in 1941 the same did not absolutely vest in the Government free from all encumbrance because the Government did not take physical possession thereof in pursuance of the acquisition in question. Moreover the learned Judge of the High Court Division was not justified in considering the trial court’s finding that defendant No.1 is a monthly tenant in respect of the suit land, overlooking that the lower appellate court rightly held that the plaintiffs, who have no right, title and interest in the suit land, had no legal authority to induct defendant No.1 as a monthly tenant in the suit land.
Govt of Bangladesh & Ors. Vs. Bahar Mw & Org. 8 BLT(AD)-121
Whether the High Court Division rightly Considering the decision reported in 14BLD(AD)20
It appears that the learned Single Judge on due consideration of evidence came to the finding that the appellant waived her right of preemption by refusing to purchase the land transferred at the earliest opportunity and that she is stopped from repurchasing the land. The learned Jude in so holding rightly relied upon the decision in the case of Akhlasur Rahman & ors. Vs. Safarullah & ors. 14 BLA(AD) 20. In Akhlasur Rahman this Division held “………that the right (right of preemption) can be waived or relinquished at an earlier date than on date of actual completion of sale under the law or thereafter”.
Most. Rokeya Begum Vs. Md. Abu Zaher & Ors. 8 BLT(AD)-134
Whether the orders of punishment are violative of the principle of natural justice.
In the instant cases the petitioners were given ample opportunity for hearing and they never asked for copy of the report of the fact-finding committee-petitioners are dismissed.
Md. Harun-Or-Rashid& Ors. Vs. BUET & Ors. 8 BLT(AD)-156
Whether for absence of the plaintiff appellant from Bangladesh for certain years his citizenship will cease or he will retain his citizenship legally because he is by birth a citizen of Bangladesh and his parents were also permanent residents of Bangladesh.
Held:
The Citizenship by birth is a complete legal right and averted constitutional right which cannot be taken away or denied or lost to a particular citizen for his temporary absence from Bangladesh or for his residence in any other country for a considerable number of years unless and until it is found that the particular citizen of Bangladesh abandons or renounces his citizenship of Bangladesh and acquired citizenship of another Country.
Annada Prasad Das Vs. Dy Commissioner & Ors. 9 BLT (HCD)-456
Whether the suit for partition without a suit for declaration of title and possession is not maintainable.
Since
both the parties accept Taherun Nessa as the original owner and since the contesting defendants could not prove by any documentary evidence that Taherun Nessa exhausted all her interest in the suit property, the plaintiffs claim of co-sharership with regard to .04 decimal of land and also their claim of ejmali possession cannot be brushed aside. The contesting defendant did not challenge the genealogy as asserted by the plaintiffs. In that view of the matter, the final curt of fact recorded a finding that after settlement and transfer Taherun Nessa retained .04 decimals of land in the jote and that the plaintiffs being the heirs of Taherun Nessa are in ejmali position in facts it is not necessary that the plaintiffs is to pray for declaration of title the recovery of possession but a simple suit for partition is quite maintainable.
Abdul Malek Khan &Ors. Vs. Begum Nurjahan Haque & Ors. 8 BLT (HCD)-274.