Words and Phrases
Abandoned Property
A property is an abandoned property when it falls within the definition
of abandoned property as given in P.O. 16/1972—Any property not abandoned can
not be taken illegally.
Abdul Hakim Vs. Secretary, Ministry of Public Works & Urban
Development (1979)31 DLR 402.
Accountability—Co-sharer.
Liability to account from legal relationship of agent and principal and
trustee and cestui qui trust.— Responsibility to account not only for the
amounts which have been actually received but also for that which with due
diligence could be received does not rest on a co-sharer with no legal
responsibility to undertake it.
Jagna Chandra Nandy Mazumdar Vs. Hemania Shashi Nandy Mazumdar (1956) 8
DLR 121.
Accounts slated and settled.
Where accounts are submitted and accepted as correct, whether in writing
or by conduct, presumption arises that accounts have been accepted as correct;
even though there was no strict accounting and the liability, therefore,
ceases.
Jagna Chandra Nandy Mazumdar Vs. Hemanta Shashi Nandy Mazumdar (1956) 8
DLRJ21 (128 rK. h. cot)
Accretion to land—Accretion to the land of the riparian
owner governed previously by the Alluvion and Diluvion Regulation (Bengal Reg.
XI of 1825).
The right of accretion in respect of a property, which was a part of the
public domain and to which a riparian owner had previously no right was a
creature, originally, of usage and, subsequently, of positive law. This rule
was given legislative shape for the first time in Alluvion and Diluvion
Regulation (Bengal Reg. XI of 1825);
Abdul Mannan Vs. Kulada Ranjan (1979)31 DLR (AD) 198.
—“Accretion” —Accretion from the recess of the river—Accretion belongs
to the person to whose estate it accretes.
River runs through the estate of the defendants—Bed of the river is the
land of the defendant— After acquisition of the defendant’s estate bed of the
river became the defendant’s private property and unless it is shown by the
Government that bed of the river has been acquired by it, presumption is it
remains the land of the landlord (defendants.)
Meser Gazi Vs. Abdul Gani Gazi (1968)20 DLR 415.
—“Acquisition”—Acquisition of citizens’ land—Authority concerned to be
careful in the matter of acquisition. The officers of the
Government who are responsible for this type of work, namely acquisition of
land for public purposes, must be sufficiently educated, alert and mindful in
the performance of their duties, because their actions in such matters affect
the rights of the citizens. The discrepancy in the two notices with regard to
quantum of land sought to be acquired might lead to very serious consequences.
It might have affected the whole building. We do not know what actions have
been taken by the authorities concerned against the officers who committed such
mistakes or what action they propose to take against the defaulting officers,
but we cannot help observe that the administration should he more careful in
dealing with the rights of the citizens in matters like this.
Begum Lufunnessa Ibrahim Vs. Prov. of East Pak. (1968) 20 DLR 174.
“Accrual of the right to sue” and “accrual of the cause of action.”
The question is, is “accrual of the right to sue” synonymous with
“accrual of cause of action” and does the right to sue accrue after one month
of service of notice under section 109(1) of the Chittagong Port Act.
Ordinarily the right to sue accrues immediately upon the accrual of
cause of action. Thus, in Ballentine’s Law Dictionary (1948 edition) the legal
meaning of “accrual of cause of action” is stated to be “the coming or
springing into existence of a right to sue”.
The Trustees of the Port of Chittagong Vs. SadharanB ima Corporation
(1980)32 DLR 99.
Acquisition by the Government
In assessing compensation for acquisition of land under both the Land
Acquisition Act, 1894 and the East Bengal (Emergency) Requisition of Property
Act, 1948 it cannot be said any longer that compensation can be had for a
bigger amount on a more liberal provision under the former Act than under the
latter. The matters to be considered in determining compensation, matters to be
neglected in determining compensation and the rate at which properties arc to
be valued are the same in both the two Acts.
Md. Ismail & 0’S. Vs. Bangladesh (1982) 34 DLR 4.
—Government is the sole judge about the existence of urgency in taking
possession of the land. If the question of urgency can be agitated, or, in
other words, made justiciable in a Court of law, the very object of the
Emergency Act will be frustrated. Ibid.
Acquisition for a Co-operative Society—can not be said to be an acquisition for public purpose—It is not an
acquisition for the State or a private party.
Co-operative ownership is not State ownership nor is it a public
enterprise. Ibid.
‘Acquisition’ and ‘Requisition’.
The word acquisition of land should be held to cover ‘requisition of
land’. Ajit Kumar Das Vs. Prov. of East Pakistan (1958) 10 DLR 69.
Act and
subsequent Amendment
When a reference is made to any enactment which has been amended by
subsequent amendments, the reference to the original Act with its original
number would mean the Act as it stands on a particular day with all the
amendments.
Sui Gas Transmission Co. Vs. Islamic Republic of Pakistan (1959) 11 DLR
(SC) 301.
Act of God
‘Act of God’ is a mere short way of expressing the proposition that a
person is not liable for any accident as to which he can show that it is due to
natural causes directly or exclusively without human intervention and that it
could not have been prevented by any amount of foresight paid and care
reasonably to he expected from him.
Abdul Rahman Abdul Gani Vs. United Oriental Steamship Co. (1959) 11 DLR 133.
Act (Legislative) and Rules—Conflict between the two.
Where changes in the rules have been effected by a non-legislative body
under rule-making power the principle that rules or regulations cannot affect a
provision of the Act is applicable even though it has to be considered as embodied
in the Act and in case of conflict between a rule and provisions of the Act the
latter prevails.
Mansur Ali Vs. Member Board of Revenue (1959) 11 DLR 412.
Ad-inconvenienti—Doctrine of—Applicability.
The greatest organs and agencies of the state have been consciously and
unanimously holding a certain belief, and have been acting upon in numerous
respects affecting the most fundamental rights of the entire people. It is
beyond conception to tabulate all the vested rights and interests which have developed
in consequence of this law. And there are many other laws which have produced
extensive effects which cannot possibly be ascertained with exact mess. These
circumstances should furnish an argument of almost insuperable character, in
favour of upholding what has been the practice hitherto in regard to assent to
constitutional laws.
Federation of Pakistan Vs. Tamijuddin Khan (1955) 7 DLR (FC) 291.
‘Added land’
Where Government assesses revenue upon land as being ‘added land’ within
the meaning of Alluvion and Diluvion Act and plaintiff claims exemption from an
assessment on the ground that it was part of his permanently settled estate,
the onus is on the plaintiff to show that the land forms part of his
permanently settled estate.
Prov, of Bengal Vs. Jamila Khatun Chowdhurani (1952) 4 DLR 222.
“Adequate remedy” explained—Door of prerogative
writ not closed unless the alternative remedy is equally inexpensive,
expeditious and efficacious—Referring a party to file a lengthy suit when the
same remedy can be had by invoking writ jurisdiction, not supportable.
Md. Abdul Karim Khan Vs. Commissioner Khulna Division (1964) 16 DLR (SC)
624.
Admiralty Jurisdiction of the High Court of East Bengal traced.
In 1890 the Admiralty Jurisdiction of the High Court of England was used
to be exercised under the Admiralty Act of 1861 of the British Parliament which
became the basis of the Admiralty jurisdiction of the High Court of Calcutta.
The Admiralty rules framed by the High Court of Calcutta came into operation in
June 1912.
Albert David (Bangladesh) Ltd. Vs. Messrs. Nediloyd Lijnen BV (1982) 34
DLR 356.
—Jurisdiction of the High Court Division derived from the Colonial Court
of Admiralty Act of 1891 and the Courts of Admiralty Act of 1861 of England. Ibid.
—High Court Division is a Court of Admiralty.
Under the Act of 1891 the High Court Division of this Court was declared
as the Court of Admiralty. This Court exercises the same jurisdiction as the
High Court of England exercised in 1890 under the Admiralty Court Act of 1861. Ibid.
Admission : Admission to educational institution—Regulated by the express terms of the Prospectus of the Institution and
the Government Instructions to the effect that, of the 2 States, each shall
have one seat reserved for it in the institution for admission—No vested right
accrues to one of the 2 States on the basis that for a long time in the past it
has enjoyed the sole right of nominating both the seats for its own subjects.
Miss Nasim Banu Vs. Secy.. Ministry of home and Kashmir Affairs (1970)
22 DLR (WP) 321.
Adverse possession Co-sharers—What
constitutes adverse possession—Long undisturbed possession, payment of
rents, enjoyment of profits and open dealings with the property indicate
complete ouster of co-sharers.
Mokbul Ahmed, Contractor Vs. Md. Idris (1969) 21 DLR 511.
Adverse possession—Co-tenants- when the interest of
a co-tenant is purchased by a third person, such purchaser becomes a tenant in
common with the other co-tenants and the possession of such co-tenants cannot,
in the absence of clear proof to the contrary, be adverse to such purchaser.
Sayed Abul Fazal Vs. Nirode Bala Deb Roy
(1956) 8 DLR 181.
Advocates—Adverse remarks by the High Court Division
touching their professional conduct—Expungement of The observations being
extraneous to the merit of the appeals and having been directed solely against
the professional conduct of the Advocates and the manner in which they had
failed to discharge their obligations to their clients and to the Court cannot
be kept on record as a part of the judgment and the observations in paragraphs
10-15 in entirety arc expunged.
Mohammad Golam Rabbani Vs. Govt. of Bangladesh (1979) 31 DLR (AD) 163.
Affidavit .: Verification of affidavit— where the petitioner is a public
trust— Where a petitioner is a public trust, a wilt
petition on behalf of the public trust, when verified by the estate officer of
the trust who is conversant with the facts of the case is a substantial
compliance with the provisions of rule 4 of Part I of the High Court Rules.
Kumudini Welfare Trust of Bengal Vs. Province of Ease Pak. (1961)13 DLR
693.
“Affidavit”—Filed by officers and prepared on the basis of records and
not on personal knowledge—Cannot be relied on by a Court.
Mritunjoy Paul Vs. Province of East Pakistan (1962) 14 DLR 568.
—An affidavit sworn by a director of a company before one of the
commissioners of the High Court at Calcutta who is not authorized to act as a
commissioners for oaths and affidavits in regard to proceeding in the Dhaka
High Court is receivable in evidence in the direction of Court for the purpose
of proceedings in the High Court at Dhaka.
Where such an affidavit had been sworn before a commissioner of the Nigh
Court at Calcutta a fresh court-fee stamp cannot be charged on the affidavit
when the affidavit is sought to be used in the Dhaka High Court. 53 CWN (DR
1) 71.
Agent
Decree as against the agent without the owner on whose behalf he
acted—Can not be passed.
Albert David (Bangladesh) Ltd. Vs. M/S. Brosterm Shipping Co. Ltd. (1982) 34 DLR 363.
—Agent not bound to carry an order of his principal if it is against
law.
Chairman BSM Corp. Vs. Masud (1978)30 DLR (AD) 169.
—Court of law must satisfy itself that command given to his agent by the
principal is not against law—Court shall give opportunity to the person against
whom an order is sought, to show cause that such an order, if passed, will be
contrary to law. Ibid.
—Power of attorney agent—A power of attorney
agent cannot be accorded all the rights and privileges which are enjoyed by the
member of the legal profession.
Jogesh Ch. Mukherji (1953) 5 DLR 160.
—A recognized agent can make an appearance or an application or act on
behalf of a party but cannot plead in a court. He can appoint a pleader but he
has no right of audience. Ibid.
—Substituted agent.
Bank—It’s responsibilities when acting on behalf of and on the
instruction of a consignee of imported goods who is also its constituent in
nominating and instructing a clearing agent.
—Clearing agent—Circumstances
when someone engaged for clearance of goods by a bank for the benefit of an
importer becomes the agent not of the bank, but of the importer.
Syed and Co. Vs. MM. Ispahani Ltd. (1958)10 DLR 552.
—“Agent”, ‘contract’ and ‘servant’—Distinction as between these three
terms under the law.
M. Akbar Ali Vs. Mrs. Rezia Sultana Begum (1983) 35 DLR 391.
Agent and Principal
The general principle is that the act of the agent in the ordinary
course of his business binds the principal—But the case will be otherwise if
the right of one defendant is quite independent and separate from that of the
other.
Seafarers Inc. Vs. Province of East Pakistan, (1968) 20 DLR (SC) 225.
“Against such party”.
The phrase ‘against such party’ in the proviso to rule 11 of Order 22,
C.P.Codc refers both to the respondent on whom service of notice has been
dispensed with, and his legal representative. The phrase is comprehensive
enough to govern any of the two contingencies, namely, the death of the
respondent or the death of his legal representative.
Abu Basher Toha Vs. Sujayat All and ors. (1979) 31 DLR (AD) 326.
Aggrieved—Appeal
“Aggrieved person”, meaning of.
There is no hard and fast meaning that could be ascribed to the term
“aggrieved person”. The meaning of the term “aggrieved person” is to be
determined with reference to the facts and circumstances of each case.
Zamiruddin Ahmed Vs. Government of the People’s Republic of BD. (1982)34
DLR 34.
Alien enemy
Even a Pakistani can become an alien enemy as defined in section 83 of
the Code of Civil Procedure.
As the Proclamation of Emergency continues and the Defense of Pakistan
Ordinance holds the field, any individual who is living in India, whether a
Pakistan national or not, without any authority from the Government of
Pakistan, is to be considered an “alien enemy”.
Guru Das Saha Vs. Deputy Custodian (1968)20 DLR 683.
—Mere residence in enemy country does not make a person an alien enemy.
SA Latif Vs. JB Dubash (1970) 22 DLR (WP) 210.
“Amalnama” unregistered—An unregistered
amalnama, though cannot be used as substantive evidence of the lease (for want
of registration), can be taken as evidence of the plaintiffs’ possession of the
suit lands.
Meser Gazi Vs. Abdul Gani Gazi (1968)20 DLR 415.
Amendatory Statute.
If the amendatory statute is wholly void, the statute sought to be
amended is not affected but remains in force. It is as inoperative as if it had
never been enacted; or Act sought to be amended is at least, reinstated in its
effectiveness upon the established invalidity of the amendment.
Ful Chand Das & ors. Vs. Mohammad Hammad & ors. (1982)34 DLR (AD)
362.
Amicus curiae
The power lies in a judge of the High Court to hear amicus curiae, where
the judge thinks that he requires assistance in deciding a cause, where he is
in doubt on point of law. 55 CWN (DR 3) 159.
Annulment of intermediate tenure.
Annulment of intermediate tenure by purchaser of superior interest.
When the purchaser of a superior 1.2terest becomes entitled to an annual
intermediate tenure, a demand of rent directly from an under tenant in the
presence of the tenure-holders constitutes an effective election to annul the
tenure.
Intention of the purchaser of a superior interest to annul the
under-tenure and a certificate of possession in the rent suit terminates the
tenure from the date of the institution of the Suit, It does not give any
retrospective effect to the termination of the tenure from the date of sale.
Amulya Chandra Kendu Vs. Mohendra Nash Biswas. (1979) 31 DLR 75.
“Any person aggrieved”.
The expression “any person aggrieved” in section 50 (Wakf Ordinance 1 of
1962) means any person who is interested to challenge the order made under this
section.
S Masud Ali Vs. Md. Asmatullah (1979)31 DLR (AD) 250.
Apology offered accepted—The contemnor being an advocate of the Court.
An application was filed by the appellant tendering unqualified apology.
In the application the appellant stated that he genuinely regretted the
objectionable statement made by him and surrendered to the mercy of this Court.
In the circumstances slated above, though we find the appellant guilty
of contemnor of Court in view of the fact that he is repentant and has tendered
unconditional apology he is let off with a warning.
Abdus Sobhan Vs. Ayaz Bahadur Khan & ors. (1979)31 DLR (AD) 335.
Appeal—Right to appeal is conferred by statute—Such right can not be interfered.
Bangladesh Vs. Abdul Mannan (1977) 29 DLR (SC) 17.
—Right to appeal as well as of revision when can be claimed— In the absence of any provision for appeal the power of revision can be
invoked in appropriate cases by way of application.
Bangladesh Vs. Abdul Mannan (1977) 29 DLR (SC) 17.
‘Appeal will be dismissed’ ‘appeal will
stand dismissed’.
There is a difference between the order ‘the appeal will stand
dismissed’ and ‘the appeal will be dismissed’. The former order contemplates a
final order to be passed in future and therefore the case has not been finally
disposed of.
Mohendra Ch. Dey Vs. Gobinda Prasad. (1953)3 DLR 313.
—Preferment of appeal unnecessary when the order to be appealed against
is infructuous.
Kazi Bahauddin Ahrned Vs. Province of East Pakistan (1963) 15 DLR 5.
A continuation of the suit.
An appeal is said to be a continuation of a suit or is included within
word ‘suit’.
The legislature when it provides a hierarchy of tribunals for the
determination of a dispute is really providing one complete procedure for such
determination, proceedings before different tribunals being only steps in this
procedure.
FA Khan Vs. Government of Pakistan (1964) 16 DLR (SC) 405.
Appellate Court.
Decision of the lower appellate Court when can be set aside in second
appeal.
When the trial Court after considering the evidence and demeanor of the
witness came to a finding which has been reversed by the lower appellate Court
without giving due consideration on the proper aspect of the case such decision
of the lower appellate Court is liable to be set aside in appeal.
Tanujur Rahman Vs. Md. Altafur Rahman (1969) 21 DLR 877.
—Objection as to manner of proof.
An Appellate Court scarcely entertains any objection as to the mode or
manner of proof of and document or object.
Narendra Nath Pal Vs. Abdur Rahman Molla (1974) 26 DL.R 45.
Appellate Division and remand of a case.
Reluctant to remand a case to enable a party to fill up a lacuna.
The Appellate Division of the Supreme Court is reluctant to remand a
case to allow a party, negligent in earlier proceeding in diligently bringing
all evidence on record, indulgence to fill up the lacuna and in evidence.
Vice-Chairman Vs. Ghulam Nabi (1975) 27 DLR (SC) 156.
Appellate order.
Presupposes the existence of an original order— No original order, no
appeal.
An appellate order is passed in appeal. An appeal presupposes existence
of original order, when there is no original order the question of giving an
appellate order does not arise. In law there can be second appeal if it is
specifically provided as has been done in this case in article 11 and Article
11(2). The existence of original order is sine qua non of the proceedings. Since
there is no original order in these proceedings all the subsequent appellate
orders are without jurisdiction and no amount of consent of the parties would
confer jurisdiction. This, is a well- settled principle of law. If any
authority is needed reliance may be placed on the decision in the case of Kiron
Sing and others Vs. Chaman Paswan and others, AIR 1954 (SC) 340.
Monindra Nath Das Vs. Joint Secretary
(1978)30 DLR 324.
‘Apparent good order and condition’
Goods not properly packed arc not in ‘good order and condition’.
Apparent good order and condition means that apparently, and so far as
met the eye, and externally, the goods were placed in good order on board the
ship.
Abdur Rahman Abdul Gani Vs. United
Oriental Steamship Co. (1959) 11 DLR 133.
‘Appertaining’—‘Appurtenances’.
The primary sense of the word ‘appertaining’ is much the same as
‘appurtenances’.
Fazlur Rahman Vs. Jogendra Mohan Das
(1951)3 DLR 116.
Application of mind.
The order made by the Sessions Judge and Special Tribunal do not show
any application of mind and the order indicates that he acted practically at
the behest of the Public Prosecutor.
Habibur Rahman Vs. The State (1982) 34 DLR
(AD) 55.
Apply
What the word ‘apply’ means and how to be understood.
In Webster’s Dictionary ‘apply’ means, amongst others, to place in
contact with a thing, to put to use, to devote to a particular purpose, to
engage with a close attention. The different categories of meaning given in the
dictionary to indicate in case of money that it is to be spent. It also means
the money devoted to a particular purpose.
MA Hal Vs. TCB (1980) 32 DLR (AD) 48.
Approbation and reprobation
A party can not blow hot and cold in his stand before a court of law.
Nur Banu Vs. Noor Mohammad. (1983) 35 DLR
(AD) 182.
Arbitration
A party to a dispute cannot be forced to go for arbitration in the
absence of an agreement to that effect.
United Aircraft Vs. PIA (1977) 29 DLR 273.
Area of land
Area of land—conflict between sale certificate and the
kabuliat—Circumstances when the latter shall prevail.
Ausaruddin Khondkar Vs. Abdul Kader Molla
(1957)9 DLR 238.
—Area of land and share of land.
Document describes both the share as well as the area to be transferred.
Which one to prevail when there is a difference between the two.
To go by the share mentioned in a document as the share sought to be
transferred without taking the other parts of the document into account may
result in forcing an intention upon the executants of the document which he did
not possess. Taking the share alone as the guiding factor where there are in
other places in the document a description of the extent of that share sought
to be transferred would be unreasonable for, it may well be that the parties
understood the share mentioned in the document to comprise only that particular
quantity of land and not more.
Safiuddin Kazi Vs. Moslem Ali Howladar
(1960) 12 DLR 266.
—Boundaries as well as area both are mentioned in the document—In case
of difference between the two boundaries to prevail. Ibid.
—‘Arrears of cess’ and ‘arrears of revenue’ not interchangeable terms.
Sale of estate held by Collector for arrears of cess is valid and the amount
lying with the Collector on account of revenue could not be regarded as lying
under the cess’. ‘Arrears of cess’ and ‘arrears of revenue’ arc not
interchangeable terms.
Jogendra Kishor Pal Chowdhury Vs. Prov. of
East Bengal (1957) 9 DLR 182.
Arrears of salary.
Declaratory decrees regarding claim to arrear of salary—Government not
to avoid implementing decrees—Departments’ practice of evading financial
implications of decrees deprecated —Writ jurisdiction not to be made use of for
enforcing declaratory decrees.
Govt of West Pakistan Vs. Fazl-e-Haq
Musarrat (1960) 12 DLR (SC) 88.
—Not a contractual debt—Claim on bounty of Slate—Action at law for
enforcement does not lie.
Claim of a public servant, for the payment of sakiry against the State,
is not a contractual debt but a claim on the bounty of the State. No action at
law lies for its enforcement. Ibid.
Articles of Association.
Articles of Association determine the scope of the functions of the
director of a company—Persons dealing with the directors not bound to enquire
into the specific resolutions.
P.K. Basak & Co. Vs. Gossen & Co.
(1957) 9 DLR 1.
Articled clerk.
Two years’ practice in the subordinate courts by a young lawyer just
enrolled should more profitably be divided into two parts,—one year in the
subordinate court and one year in the High Court Division.
Kazi Habibul Awal, Vs. Bangladesh Bar
Council & ors. (1982) 34 DLR 333.
‘As early as possible’.
The words ‘as early as possible’ cannot but mean ‘as early as possible’
within the terminus adqucm.
Al-Haz Abdur Rahman Bhuiya Vs. Commr. of
Narayangonj Municipality (1958) 10 DLR 431.
Assignable claim.
The true test for determining the nature of the claim sought to be
assigned should be to sec that the claim when it does accrue partakes of the
character of a debt or a beneficial interest in movable property not, in the
possession, either actual or constructive, of the claimant which can be
recovered by an action.
Kazi Abdul Ali Vs. Nurul Amin (1955) 7 DLR
406.
Attestation to document.
Attestation to document is no evidence as to the recitals and contents
thereof.
Basanta Kumar Vs. Santosh Kumar, (1972) 24
DLR 84.
Attestation of a document
Not a ground to fix the person attesting the document with the knowledge
of the contents of the document. (1957)
PLR (WP) 311.
Auction-purchaser’s right to the land
Purchased.
When an auction-purchaser has acquired a good title against a
judgment-debtor he should not be compelled to part with it merely because he
cannot hold his title against another.
Nirod Bala Vs. Monomohan Datta (1954) 6
DLR 559.
Audi alteram partem—Is to be read in every law.
Principle of audi alteram partem
unless expressly excluded by law or by the nature of the objects of any
particular law, is to be implied to have been provided in every statute.
Dr. Neelima Thrahim Vs. Gov. of Bangladesh
(1980) 32 DLR 201.
Award and decree—Arbitrator’s award and
Civil Court’s decree stand on the same footing.
An award made by an Arbitrator is a decree in all purposes and it can be
enforced by a Civil Court, as if it was a decree of that Court. The award being
a decree, the general principles applicable to execution of a decree will be
available here.
Md. Emdadul Haque Vs. NV Co-op. M Society
(1974) 26 DLR 120.
An award is altogether different from a recommendation.
It appears that the learned Labour Court misconceived the scope of
section 34 of the Ordinance and confused between a claim and a right. It
appears further that the learned Labour Court proceeded on a wrong assumption
that the recommendation of the National Pay Commission is an award.
Manager, Azizuddin Industries Ltd. Vs.
Abdus Satter (1979) 31 DLR 58.
B
Ballot paper.
Election Commissions jurisdiction to reject ballot papers with extra
marks, when acquired.
Extra mark on the ballot paper must enter on the ballot paper before it
is put into the ballot box; so that, on this positive finding by the Election
Commission, the latter will acquire authority to reject the ballot paper from
counting—Without such a finding, the Election Commission could not acquire such
authority—This is the dictum of the Supreme Court.
Mohammad Abdur Rab Vs. Abdus Samad Sarkar,
Chief Election Commissioner (1968) 20 DLR 675.
Bank—Its
responsibility—Bank bound to make the payment on demand—It is not to arbitrate
.in a dispute between two contending parties.
Pubali Bank Ltd. Vs. Bangladesh
Agricultural Development Corporation. (1982) 34 DLR 104.
—Bank’s claim, after LC opened— Bank’s claim, after irrevocable letter of credit had been opened for
its client for import of goods, to the payment of full amount due on such goods
is fully enforceable, even though the client wanted the bank that to save his
(client’s) interest a new clause be inserted in the letter of credit but in
spite of the bank’s efforts to do so the letter of credit could not be amended
as goods before the bank’s intimation had already been shipped.
M/s. Mohammad Usman Brothers Vs. M/s.
Muslim Commercial Bank Ltd. (1971)23 DLR 39
—Bank’s function—Bank’s liability to pay
when the position created is one of debtor and depositor.
Released amount becomes a deposit and the bank becomes a debtor.
Sonali Bank, Vs. Abdul Mannan and ors. (1982)
34 DLR (AD) 21.
Bank and customer—Mutual open account.
When a person opens a current account with a bank and pays money into
it, the bank is a debtor to the customer. If the bank .allows the customer to
overdraw the account and he does so, he becomes a debtor to the bank and each
party could say that he had a separate account against the other.
Reliance Bank Ltd. Vs. Profulla Kumar
Banerje (1953) 5 DLR 69.
—Bank deposit.
Relation created between the depositor and the bank is one of debt.
Mahaluxmi Bank Ltd. Vs. Muhammad Saheb
Meah (1957) 9 DLR 133.
‘Bazars’.
Bazars with some structure on, which are held once in the morning every
day, can be acquired under sec. 3(2) of the E. B. State Acquisition and Tenancy
Act.
Yusuf Ali Chowdhury Vs. Prov of East
Pakistan. (1959) 11 DLR (SC) 316.
‘Bed of river’—Doctrine of reformation in
situ.
When a river habitually covers up a land every year during the wet
season and the land is not capable of cultivation in the usual way even when dry
during the dry season, it is for all purposes the bed of river and it cannot be
said that the river has yielded up and abandoned the land. The doctrine of
reformation in Situ cannot be attached to such a soil.
Till the land rises beyond ordinary high water mark in such a way as to
become fit for cultivation, it is part of the river bed and, as such, public
property.
So long as a land remains part of the bed of a river, no private
ownership can attach to it.
Rai Satyendra Kumar Das Bahadur Vs.
Province of East Pakistan (1958)10 DLR 39=8 PLR (Dac) 495.
‘Beel’ having right of fishery,
proprietorship of.
When the ‘Beels’ have ceased to be parts of rivers, the right of fishing
in the ‘beds’ comes to be vested with the owners of the soil underneath.
Province of East Pakistan Vs. Tasiruddin Ahmed (1968) 20 DLR 434.
Benami
Benami—Transfer cannot be held benami where wills made for being
absolved from a debt.
It has been contended that a transfer in consideration of debt is a
valid transfer and the same cannot be held to be a benami transaction. It is
true that under certain circumstances a valid transfer can be made in
consideration of being absolved from a debt. But what is necessary is that the
debt must be found to be due. In the case of Mina Kumari Vs. Bijoy Singh it was
observed by their Lordships of the Judicial Committee as follows:—
‘To the suggestion that the transaction was benami, a complete answer is
furnished by the admission that the judgcment-dcbtor owed the plaintiff the
amount stated to be the consideration for the sale- deeds and more.”
Abdul Gafur Vs. Obaidul Hossain, (1968)20
DLR 1150.
Benami transaction—In a suit for declaration of title and restoration of possession, Court
can decide if one of the defendants is a benamder for the other defendant
regarding the suit land.
Sadequr Rahman Chowdhury Vs. Mvi. Abdul
Ban, (1970) 22 DLR 858.
—Its history and characteristics.
In a bcnami transaction real owner of a property allows it to appear in
the name of an ostensible owner, himself remaining the beneficiary of the
property. The practice of bcnami developed in the Indian sub-continent long
before its conquest by the Muslims and during the Muslim rule the practice of
benami received full recognition from the authorities and the Courts as well. That
the practice of benami was widely practiced throughout the Sub-continent is
evident from the early history of the East India Company.
Nurjahan Begum, wife of Mahmudur Rahman
Vs. Mahmudur Rahman Mullick (1982) 34 DLR (AD) 61.
Benamidar and the real owner.
The ostensible owner or the benamidar holds the property in trust for
the real owner. Relationship between benamidar and the real owner is that of a
trustee and ‘cestui que (rust’. Thus its cestul que trust became the beneficial
owner of its property.
Nurjahan Begum, wife of Mahmudur Rahman
Vs. Mahmudur Rahman Mullick (1982) 34 DLR (AD) 61.
—Benanii transfers may be classified in
two classes of transactions.
Benami transfers may be classified in two classes of transactions.
Transfers where the real owner of the property transferred to another without
any intention whatever to benefit the transferee and no consideration passing
from the transferor formed one class. In such transfers the transferor remains
to be the real owner but he holds property in the name of the transferee. The
other class consists of transfers where a person purchases property in the name
of another person. In such transfers, there is a real transaction and the
purchaser who pays the consideration money acquires the property for his own
benefit, and the person whose name appears in the deed of transfer merely lends
his name to the transaction, and acquires no interest in the property.
Nurjahan Begum, wife of Mahmudur Rahman
Vs. Mahmudur Rahman Mullick (1982) 34 DLR (AD) 61.
Benami purchase—Possession of property.
Although the source of purchase money is an important criteria, but it
is not conclusive where there are other circumstances showing that the
purchaser intended property to belong to the person in whose favour the sale
deed is executed. So it is the intention of the parties which practically
determines the question as to who is the owner of the property.
Source of purchase money is only to be the criterion in the absence of
all other relevant circumstances. Among other circumstances possession of the
property has been held to be very important.
Nurjahan Begum, wife of Mahmudur Rahman
Vs. Mahmudur Rahman Mullick (1982) 34 DLR (AD) 61.
—Benami transaction—Source of purchase money—Consideration of other relevant circumstances important—Motive
for benami.
In a benami transaction source of purchase money an important criterion
but it is not conclusive.
Nurjahan Begum, wife of Mahmudur Rahman
Vs. Mahmudur Rahman Mullick (1982) 34 DLR (AD) 61.
Bench and Bar—To work harmoniously
Both the Bench and the Bar are two arms of the same machinery and unless
they work harmoniously justice cannot be properly administered. An erring judge
and erring contemner are both a danger to the pristine purity of the seat of
justice.
Moazzem Hossain Vs. State (1983)35 DLR
(AD) 290.
Benefit of Tax-holiday
Profit of he company being entitled to the benefit of tax-holiday
share-holders when receiving dividend are equally exempted from tax.
Commissioner of Income Tax Vs… Mr. Masuda Khatun (1982) 34 DLR (AD)
85.
Bias
Bias—When Judge is disqualified to sit on judgment in a case—Justice not
only be done, but should also be shown to have been done
Where a Judge or a Member of a Tribunal has pecuniary interest however
negligible in the subject- matter of the litigation which is pending
adjudication before him, he is disqualified from hearing the matter without any
further proof of bias in him from any quarters. But where the allegation of
bias is based on kinship or relationship, it seems to us that the party
alleging relationship between the contesting party and the Judge or a Member of
the Tribunal, has to prove that there nature of relationship is such as to
afford a reasonable bias for holding that there is a real likelihoods of bias.
By this we do not mean to say that we approve of the conduct of a Judge or a
Member of a Tribunal who appears to have some interest in the case due to his
relationship with any of the contesting parties before him and yet hears the
matter even though the parties have consented to his doing so. Justice should
not only be done but it should appear to have been done so that people may have
confidence in the administration of justice.
Mahbubul Huq Vs. Chief Commissioner of
Pakistan (1968)20 DLR 883.
—Judge affected by bias when will render the decision void.
In a case where bias on the part of a presiding Judge is based on his
pecuniary or proprietary interest in the subject-matter of the proceedings
however small that interest may be, that will disqualify the Judge to sit over
the proceedings and render his decision void but where such pecuniary or
proprietary interest is not involved mere suspicion of bias even if it is not
unreasonable is not sufficient to render the decision void.
Syed Akhlaque Hussain Vs. Pakistan, (1969)
21 DLR (SC) 152.
Court having already determined cx pars that the appellant had acted
malafide in causing the retirement of the respondent, its subsequent suo mosa
rule to show cause why the appellant should not pay Tk. 10,000/- to the
respondent is an attempt to regularize its earlier ex-parte proceeding.
Habibullah Khan Vs. Shah Azharuddin Ahmed
(1983)35 DLR (AD) 72.
—Court should avoid possibility of bias—A matter should not be heard by
a Judge where likelihood of bias exists.
Moozzam Hossain Vs. Slate (1983) 35 DLR
(AD) 290.
Bill of lading:
Bill of lading—Burden of proof about misstatement in it (e.g., where the
complaint is that the goods had not been shipped) is on the buyer.
It is quite correct that although statement in the bill of lading is not
a conclusive proof in law if buyer wanted to challenge the fact of shipment
recorded in the bill of lading it was their duty to lead evidence in proof of
their allegation that the goods had not been-shipped.
It was incumbent on the buyer to prove that the goods had not been
shipped. Where this onus has not been discharged it is not possible to hold
that the goods were not shipped or the bill of lading was a forged document.
Haji Moosa Haji Omar Vs. Ahmed Abdul Gani
(1968)20 DLR (WP) 158.
—Master of the ship is liable in case of transhipment—not the person
further endorsing the bill of lading in favour of a third party.
Even in cases where the hindrance of the ship’s voyage is not caused by
an excepted peril the ship- owner is only liable for delay or failure to
deliver and to compensate for terms more onerous to the shipper in
transshipment. But this only is the responsibility of the Master of the ship
and not of the person who has further endorsed the bill of lading in favour of
a third party. Ibid.
‘Bill of lading’ and ‘Charter party’— The bill of lading is a document of title to the
goods and may as such be transferred to a third party who makes it
subject to everything that appears thereon. it is therefore, both transferable
and negotiable. Usually as between carrier and shipper, the contract is
contained in the charter party and the bill of lading is not evidence of the
contract but only a receipt for the goods and at the same time it is also a
document which enables the shipper to transfer the goods to a consignee.
Therefore, apart from the receipt, the bill of lading in such case is also a
document of title.
Abu Bakr Siddique Vs. M. V. Aghia
Thalassini (1978)30 DLR 94.
Black Listing.
Blacklisting—No authority can blacklist a person who is not a licensee
under that authority.
The expression ‘blacklisted’ used by the Municipality concerning the
petitioner really means nothing inasmuch as the petitioner’s business has not
been stopped or affected in any way by the expression “blacklisted”. The
petitioner is not a licensee under the Municipality and therefore, the
Municipality has no authority to blacklist the petitioner.
M/S
Anwar Asghar Brothers Vs. Chairman, Chittagong Municipality, Chittagong
(1970) 22 DLR 201.
Board of Revenue
Board of Revenue abolished—Its function has been taken over by the
Ministry of Land Revenue and Land Reform.
Md. Nehaluddin Vs. Govt. of Bangladesh
(1977)29 DLR 91.
Boi Bikri
The word “Boi-bikri” used in the deed of will by the testator is
confined to sale only and does not include a ‘transfer’ which is sale plus
other mode of transfer such as lease, mortgage, etc.
“Boi Bikri” means sale and does not include any other transaction
excepting sale.
Nirode Baran Paul Vs. Ahmed Meah (1970)22
DLR 529.
‘Bonafide mistake’
Bonafide mistake when cannot be taken—Plea of. A plea of bonafide
mistake not having been taken before the High Court Division cannot be
entertained by the Appellate Division.
Amaresh Chandra Chakraborty Vs. Bangladesh
(1979) 31 DLR (AD) 240.
‘Bonafide requires’.
(Sec under section 17(c) EB Premises Rent Control Act. Jagadish Sarkar Vs. Abdul Aziz. (1955) 7 DLR
314.
Bond.
“All other perils, losses and misfortunes”
To be interpreted ejusdem generis.
General words like all other perils, losses and misfortunes etc. in the
insurance policy are to be interpreted ejusdem generis the particular words
preceding them. It is manifest that the general words must be restricted to
loss or damage caused to the goods by a cause which is akin to or resembling or
of the same kind as the particular words preceding them.
ES. Insurance Vs. Rahman Trading (1976)28
DLR (SC) 109.
—Phrase “other perils and losses, etc.” covers loss due to rough
weather.
In the present case, the damage was due to the generation of heat by
closure of the ventilators and that was done due to rough weather which brought
sea-water on deck. This cause is covered by the words other peril and losses
etc. in the policy in view of the fact the cause is akin to or resembling or of
the same kind as the Loss particularized preceding the general words.
ES Insurance Vs. Rahinan Trading (1976) 28
DLR (SC) 109.
—Bond or negotiable instrument:The relevant text in the document ran as
follows
“1, Mosiafizur Rahman,—hereby acknowledge the receipt of Rs. 10,000/-
from Mr. Md. Azizur Rahman, having borrowed from him today, the 3rd day of
January, 1963.
I promise to pay the said sum to the said Mr. Md. Azizur Rahman or his
successors on demand.”
It was contended that the above text shows that it is merely an
acknowledgement of the receipt of a sum of Rs. 10,000/-.
Held: A bare
reading of the document would show that it is not so. The petitioner has
undertaken in express terms to pay the amount of Rs. 10,000/- to Mr. Azizur
Rahman or his successors on demand.
In this document there is a recital of obligation of Mostafizur Rahman
to pay the amount to Azizur Rahman or his successors. It, therefore, lacks in
the essential quality of being negotiable.
Md. Azizur Rahman Vs. Mustafizur Rahman
(l969) 21 DLR 119.
—“Boni judicis est ampliare jurisdictionem
“—Judge’s duty to enlarge his jurisdiction for advancement of substantial
justice.
If a man has a right he must have a means to vindicate and maintain it
and a remedy if he is injured in its excercise and enjoyment. It is pertinent
in this connection to refer to another well-known legal maxim boni judicis est
ampliare jurisdictionem which means that it is the duty of a judge to extend
and enlarge his jurisdiction. This has been interpreted by the superior Courts
of England to mean that it was the duty of the judge applying the law to
amplify its remedies and without usurping jurisdiction to apply its rules to
the advancement of substantial justice.
Kari Palan Mia Vs. State (1983) 35 DLR
118A
Bonus.
There is a distinction between ‘share of profits’ and ‘commission’ on
the one hand and bonus on the other, the two first expressions relate to a
legal right, the last refers generally to an ex gratia payment.
Md. Akbar Abdul Sattar Vs. WL Bogtstra
(1956)8 DLR 19 (PC).
—Proportionate bonus to employees, working
for a year.
Pakistan Petroleum Workers Federation
Karachi Vs. Burmah Shell Oil Storage and Distributing of Pak Ltd. (1961)13 DLR
(SC) 299.
Basis for assessing—In computing profit and loss for the purpose of awarding bonus the
amount spent in payment of salaries, wages and other incidental expenses cannot
be overlooked.
Where management did not make any profit in a particular year the
workers were not entitled to get any bonus that year.
Saifee Development Corporation Ltd. Vs.
Pakistan (1961)13 DLR (SC) 27.
—Bonus out of profit—by virtue of 1966 Finance Act, is now taxable. (1982)34 DLR (AD) 85.
—‘Bonus share’ is not exempt from income
tax.
Super-Lax—Liability to pay the same—An additional duty of income tax.
Neither sub-section(1) nor 4 (A) of the Finance Act 1968 has given
exemption to the bonus shares. On the contrary, section 4(B) expressly provides
that nothing contained in sub-section (1) of section 4(A) shall be deemed to
exempt the income representing the face value of any bonus or the amount of any
bonus issued, paid or declared by a company.
In the present case tax has been levied on bonus shares and it being a
super-tax is an additional duty of income tax and it is charged in respect of
the total income of the previous year. Therefore, it is covered by clause (c)
of item 43 because it deals with “taxes on income.”
Pak Jute Mills Ltd. Vs. Income Tax Officer
(1979) 31 DLR (AD) 178.
Boundary
Thana boundaries—Like the district boundary (mid-streams) of a big river
are to be taken as the Line of demarcation in thana boundaries.
Abdul Hamid Howladar. Vs. Province of East
Pakistan, (1972)24 DLR 142.
—Boundaries establish identity—Boundaries as well as area both are
mentioned in the document—In case of difference between the two, boundaries to
prevail.
There can possibly be no reason to hold that even the description of the
land by boundaries was not sufficient to identify the land sought to be
conveyed or was a false description of the land. The Privy Council has pointed
out that where a land sought to bcconveyed is described by reference to its
boundaries that makes the land sufficiently iclentifiable that prevails over
the area said to be comprised therein.
Safiuddin Kazi Vs. Moslem Ali Howladar.
(1960) 12 DLR 266.
“Brothels”—Control of profession by
municipality.
Municipal bodies power to exclude the retention of brothels from certain
specified area—Power to impose a total ban against the constitutional
guarantee.
If by the prohibitory order, the profession is not to be practiced within
the specified area but at some other place, the persons affected are entitled
to some assistance in procuring places of residence for themselves, where they
may live and Continue their profession, if they choose. Any attempt to squeeze
out the profession or otherwise render it extinct may perhaps be found to be
inconsistent with the provisions of the present Constitution, which allow the
free practice of professions, subject to the power of regulation.
Mst. Sardaran Vs. Municipality, Lyallpur
(1964) 16 DLR (SC) 372.
“Burden of Proof’
—Plaintiff must prove
his own case and cannot rely on the evidence of the defendants to prove his
case.
It is well settled that plaintiffs can succeed only on proof of his case
and not on the weakness of the defense. In this case the learned subordinate
Judge held that plaintiffs failed to prove exclusive possession. In view of
this finding, it cannot be held from the evidence adduced on the side of the
defendants that plaintiff’s exclusive possession was proved.
Achi Meah Vs. Bacha Mean (1966)18 DLR 313.
Bureaucratic recalcitrance—along with the downright contradictory attitude as also its misleading
statements in Court—Entailing hardship on citizens.
What has particularly shocked us is the manner in which innocent citizens
were being harassed and driven from pillar to post.
Al-Haj Md. Mostafizur Rahman Vs. Deputy Commissioner,
Chittagong (1982)34 DLR 328.
‘By land’
The words ‘by land’ include the words ‘by air’. Fakir Muhammad Punjabi Vs. Federation of Pakistan (1958)10 DLR (SC)
122.