Words and Phrases [C,D]

Words and Phrases


—“Cancel” and “discontinue”—Distinction
between the two words,

The word “discontinue” means interruption of continuance, cessation or
intermission. ft does not mean putting an end to something which but for the
action in question would have gone on. The latter action amounts to
cancellation. This is the distinction between the two words “cancel” and
“discontinue” used in sub-section (3) of section 28 of Electricity Act (IX of
1910). The sanction in favour of the petitioner company was continued from time
to time until the 30th of September, 1965. No further extension was granted and
that amounts to discontinuance of the sanction.

Pabna Electric Supply Co. Vs. Province of
East Pakistan (1968) 20 DLR 1158.


Capital expenditure

There is no definition of the expression capital expenditure which must
be construed in a business sense save in so far as there may be rules of
constructions applicable to it.

Mohan Lal Hargovinda Vs. Commissioner of
Income Tax CP (1951)3DLR (PC) 121.


—‘Capital expenditure’ it has been said, is that which is spent ‘once
and for all’.

‘It is an expenditure incurred with a view to bringing into existence an
asset or advantage for the continuing benefit of the trade.

It is money employed ‘for the purpose of acquiring the concern, not for
the purpose of carrying on the concern.’

The land upon which a manufacturer carries on his business is part of
his fixed capital. The machinery with which a manufacturer makes the articles
that he sells is part of his fixed capital.

Commissioner of Income Tax, E Pak Vs.
Luxmi Narayan Cotton Mills (1960) 12 DLR (SC) 135.


Care and protection—Difference between,

The difference between ‘protection’ and ‘care’ is that protection
denotes preservation, whereas care denotes responsibility for welfare.

Fahimuddin Khonkar Vs. Mst. Zaibunnessa
(1968) 20 DLR (WP) 297.


‘Carriage of goods in a ship’—Towage of a
dead ship.

Ruhul Islam, J.—Towage of a dead turbine ship by a ship-tug can be said
to be “carriage of goods in a ship”.

If the expression “carriage of goods in a ship” is given literal
meaning, then, unless the cargo is placed on board the ship, there would not be
any carriage of goods” as contemplated in the Carriage of Goods by Sea Act,
1925. In view of the nature of the contract which specifically mentioned about
the bringing of the TSS ‘PACIFIC ABETO by towing another ship (Tug) the
carriage by towing could not be anything but “carriage of goods in a ship.”

—No cause of action’—Conclusion arrived at from a mere reading of the
plaint on its presentation—And the conclusion arrived at after going through
the materials on record—Distinction between them.

Saleh Industries Vs. TSS Pacific Abeto
(1983)35 DLR (AD) 1188.



The word ‘censorship’ means excision, stop, regulation, control, etc.

Dacca Picture Palace Ltd. Vs. Pakistan
(1966) 18 DLR 443.


‘Chala land’ and nal land’

Chala lands arc comparatively elevated land fit for construction of
residential structures, whereas nal lands are agricultural lands which are
comparatively of low level.

Bangladesh Vs. Abdul Khaleque (1975) 27DLR


‘Char lands’

Char lands added by gradual accession of the river—The riparian owners
of the land to which the char lands are added became the owner of the new char

AS Aziz Mohammad Vs. Govt of Bangladesh
(1979) 31 DLR (AD) 218.



(Under Rule 5 of the Bengal Agricultural Income-tax Rules, 1944).

The word ‘chargeable’ merely means exposed in a cont1gcncy which may or
may not occur.

Jagadish Ch. Mazumdar Vs. Commr, of
Agricultural Income Tax, East Bengal (1956)8 DLR 327.


Charter party and bill of lading

—Consignee not fixed with the knowledge of the contents of charter
party—Shipper has no means of knowing what may be in the charter party.

The bill of lading often contains the clause ‘all other conditions as
per charter’. Such a clause does not give the shipper notice of the whole
contents of the charter party so as to make him liable to perform them.

Abu Bakr Siddique Vs. MV Aghia Talassini
(1978) 30 DLR 94.

—Arbitration clause in the charter party—No cvidcntiary value as to this
clause so far as the bill of lading is concerned. Ibid.


Christian Law

Minor—In the absence of father, mother is natural guardian.

It may be accepted that in the absence of the father, the Christian mother
is the natural guardian of her minor children. It may also be accepted that it
will not be unlawful for her to be the custodian of her ward’s property.

Archana Prasad Nandi Vs. Miss Chilia
Randolph (1980)32 DLR 118.

—Though a Christian mother as a natural guardian of her minor children
can enter into an executor contract of sale in respect of her minor children’s
property, in decreeing specific performance thereof the Court will have to be
satisfied, inter alia, that the contract has caused to the minor’s benefit. Ibid.


CIF Contracts

The initials CIF stand for the words cost, insurance and freight. Thus
if a merchant agrees to sell goods at 30s. per ton CIF. Manchester Docks, that
sum will include the price of the goods, premium for insuring them and the
freight payable for carrying them to their named destination.

Syed & Co Vs. MM Ispahani Ltd.
(1958)10 DLR 552.


Civil rights

An invasion of civil rights of another is itself a legal wrong carrying
with it liability to repair its necessary and natural consequences in so far as
these are injurious to the person whose right is infringed, whether the motive
permitting it be good, bad or indifferent. 1 PLR 106.



Circulars issued by the Government are for executive guidance and
possess no legal force.

Administrator, Zilla Board Vs. Mukhlesur
Rahman (1984) 36 DLR 71.



Citizen—When a citizen can be declared an
enemy—Circumstances explained.

In the present case Mr. Siddique UIIah who affirmed an affidavit to the
effect that he has settled in India does not say as to when he left for India
and started permanently residing there, or as to where in that country he is
residing. On such allegations, it is not possible for a Court to hold that a
citizen has become an enemy.

Shah Ghulam Nabi Vs. Vice Chairman, East
Enemy Property
(1970) 22 DLR 48.


Clearing agent

Circumstances when someone engaged for clearance pf goods by a bank for
the benefit of an importer become the agent not of the Bank but of the

Syed and Co. Vs. MM Ispahani Ltd. (1958) 10
DLR 552



A client may be understood in the sense of a constituent or customer or
one who employs a lawyer or professional adviser and, as such, the possible
relationship of a principal and agent cannot be excluded from the connotation
of the word ‘client’.

Syed and Co. Vs. MM Ispahani Ltd. (1958) 10
DLR 552



The word “Collector” does not include the Sub- divisional Officer. Where
the “Collector’ is directed to do certain thing it cannot be transferred to the
Sub-divisional Officer, he being not the Collector.

Khabiruddin Miah Vs. Darastullah Kazi
(1969)21 DLR (BR) 27.



There is a distinction between ‘share of profits’ and commission’ on the
one hand and bonus on the other. The first expression relates to a legal right,
the last refers generally to cx gratia payment.

Md. Akbar Abdul Sattar Vs. WL Bogtstra
(1956) 8 DLR (PC) 19.


“Committee’—Can be used even for an individual—Companies Act (VII of 1913), Table
A, Sched. 1. Reg. 91.

The Pakistan Employees Cooperative housing
Society Ltd. Karachi Vs. Ms:. Anwar Sultana (1969)21 PLD Karachi 475.


Common carrier.

At Common Law after the affreightment ends the common carrier incurs a
new liability as an involuntary warehouseman of a bailee if the goods still
continue to remain in his custody even by reason of some fault of the consignee
and he is bound to take such care of the goods as a prudent man would take of
his own goods of the same kind, bulk or value in similar circumstances.

Abdur Rahman Abdul Gani Vs. Mackinnon
Mackenzie & Co. (1958) 10 DLR


Company—Share-holder—Whether has any interest in “particular piece” of property in which
company has an interest.

It is highly questionable whether any shareholder of a Company can claim
to have an interest in any particular piece of property in which the Company
has an interest unless the Company itself is brought into liquidation, and even
then the interest is not of a direct nature.

Rai Bahadur Mohan Singh Vs. Rai Bahadur
Jodha Mal Kuthalia (1961) 13 DLR (SC) 21.


Company in liquidation.

Company in liquidation turns out to be solvent—Creditor’s entitlement.

Where a company in liquidation turns out to be solvent, creditors whose
debts carry interest by agreement or otherwise arc entitled out of the surplus
assets to payment of interest accruing after time commencement of the
liquidation until payment is made of the principal debts at the rate at which
by agreement or otherwise interest on such debts is payable.

Chartered Bank Vs. Official Liquidator
(1982) 34 DLR 324.


—Company matters—A meeting if called for appointing a Managing Director—Sufficient prior
notice of that must be given to the other Directors.

Shamsul Huda Vs. Jalaluddin Ahmed. (1979) 31
DLR 5.



The meaning of ‘compensation’ with respect to a property is the market
value of the property.

Jibendra Kishore Acharya Chowdhury Vs. Prow, of East Pak. (1957) 9 DLR
(SC) 21(23).


—Suit for compensation arising out of death caused by fatal
accident—Appellate Court would not interfere only because it would have awarded
different sum—Onus to prove that the amount awarded is excessive is very heavy.

Lim Joo Chiang Vs. Lim Siew Choo (1959)11
DLR 84 (PC).


—Partial damage of goods

It was contended on behalf of the defendant that when the plaintiff
based his claim on the basis of total loss, constructive or actual, the
plaintiff is not entitled to get any decree on the basis of partial loss.

Plaintiff can be awarded a decree for partial loss even if he did not claim it
in his plaint which was founded on the basis of total loss.

Even if no notice of abandonment is served, the insured’s whole claim
will not be defeated but he would be entitled to recover partial compensation
in respect of the damaged goods.

BR Rakshit & Co. Vs. Federation of
Pakistan (1959) 11 DLR 106.


—Ship owner’s liability to pay damage for goods shipped where the bill
of lading contained the clause that the goods were shipped ‘in apparent good
order and condition’.

Abdul Rahman Abdul Gani Vs. United
Oriental Steamship Co, (1959)11 DLR 133.


—Compulsory acquisition of land by the State—Law enacted by the
legislature providing compensation for acquisition of land when such law is
violative of the provisions of the Constitution in such matters must be held to
be ultra wires.

Compensation of compulsory acquisition—The law ordinarily applicable in
such acquisition is Land Acquisition Act (1 of 1884).

Province of West Pakistan Vs. M. Salim
Ullah (1966)18 DLR (SC) 378.


Compromise when goes beyond the scope of a

The proper procedure in a case where a compromise went beyond the scope
of the suit was to incorporate the compromise in a schedule to the decree and
make an order or a decree only in so far as those terms came within the scope
of the suit and then that portion would be a perfectly valid and executable

Nagendra Nath Mazumdar Vs. Kshitish Ch.
Ghose (1957) 9 DLR 661


‘Conditional or contingent’

The words ‘conditional or contingent’ mean that in case of debts or
benefits accruing conditionally or contingently the immediate right to recover
by an action does not arise until the condition has been fulfilled or the
contingency has occurred.

Kazi Abdul Ali Vs. Nurul Amin (1955) 7 DLR


Constitution—Its interpretation

K Hossain, CJ—Constitution should be interpreted as an organic
instrument keeping its dynamic character in view. More specifically regard may
be had to the political, social and economic conditions and their place in the
historical setting and the present international milieu. The decisions of
courts of other jurisdiction will serve as a helpful guide, but never an

Mofizur Rahman Khan Vs. Govt. of
Bangladesh (1982) 34 DLR (AD) 321.

Constitutional form of Government—Object of a government vis-à-vis right of citizens—Constitutional
guarantee, safeguarding rights of citizens—Inviolability of the fundamental
rights (Constitution of Bangladesh, Arts. 26 and 27).

Hamidul Huq Chowdhury & ors. Vs.
Bangladesh represented by the Secretary Ministry of information (1982) 34 DLR

Principle of exposition of one Act by language of another not applicable
to instrument—In construing instrument, intention of parties is the primary


Constitution of Document.

The principle of exposition of one Act by language of another cannot
apply to the Instrument of Accession drawn up by a functionary of the Ministry
of State and Frontier Regions. Indeed, the primary consideration in construing
an instrument is to ascertain the intention of the parties to the instrument.

Fatoomal Vs. Rehabilitation Commissioner,
Khairpur Division (1969) 21 DLR (SC) 291.


Contempt of Court—False and frivolous allegations made in written statement against a
sitting Judge of the Supreme Court amounts to gross contempt and tends to
interfere with administration of justice.

Abdus Sobhan Vs. Ayaz Bahadur Khan and
ors. (1979) 31 DLR (AD) 335.



The word ‘contracts’ means written (and not oral) contracts only.

The word “contracts” in Part 1, Section B of the Conciliation Courts
Ordinance has been used along with “receipts or other documents”. There are
authorities for the proposition that when two or more words which are
susceptible of analogous meaning are coupled together noscitur a sociis, they
arc understood to be used in their cognate sense. They take, as it were, their
colour from each other, that is, the more general is restricted to a sense
analogous to the less general.

In our view the context in which the word “contracts” has been used in
the aforesaid provision clearly indicates that written contracts are only meant.

Zamiruddin Vs. Havas Khan (1969) 21 DLR
(SC) 39.


—Fraud or misrepresentation by which a contract is entered into renders
it unenforceable in law and the party affected by it can repudiate it even if
the original ground of repudiation is found to be untenable.

Karnaphuli Paper Mills Ltd. Vs. Amanullah
(1971) 23 DLR 150.


—Contract with three persons for sale of a land—One person honoring the
contract, the other two refusing—Enforcement of the contract on the ground that
the contract is divisible.

Archana Proshad Nandi Vs. Miss Chilia
Randolph (1982) 34 DLR (AD) 107.


—In such a position the Court will simply sever the contract and enforce
it specifically so as to bind a party to the term of the contract. Ibid.


—Breach of contract—Compensation.

Irrigation Department being a component of the Government the latter is
responsible for any loss caused to lessees of the Government on account of the
Department’s unauthorized action.

Mariam Vs. Bangladesh (1978)30 DLR (SC)


—Frustration of contract, when can not be pleaded and when compensation
for loss suffered to be paid. Ibid.


Implied condition in.

Implied condition in a contract can be excluded by an express
stipulation to the contrary or by a statutory provision.

Pakistan through General Manager, NWR
Vs. M/S  AB Issacs (1970) 22 DLR (SC)


Mercantile contract

Contract is mercantile transaction. Buyer purchasing goods from seller
of another country undertaking through his bank to pay for the goods supplied
through a bank in the seller’s country. The contract to pay the seller is
absolutely obligatory. No direction upon the bank to with-hold payment can be
passed—Only exception is in case of fraud of which the bank has notice.

Uttara Bank Vs. Macmeill and Kilburn Ltd.
(1981)33 DLR (AD) 298.

—The court will not interfere by granting an injunction from performing
or discharging the contractual obligations.

—Specific performance of contract—Suit for.

—Plaintiff must conform himself to terms of contract—Plaintiff, asking
for relief not covered by terms of contract—

Held: not
entitled to relief prayd for.

Haji Shaista Gui Vs. Haji Duranai (1969)
21 PLD (Prshawar) 185.


Contractual service

The appointments of the Chairman and the members of a Commission bear no
resemblance to appointments to a civil service. These appointments arc ad hoc
appointments, hiving all the characteristics of contract appointments bearing
little resemblance to appointments to a civil service and may be governed for
necessary purposes by the terms of a contract.

Prov. of West Pakistan Vs. Chowdhury Nazir
Hossain (1960)12 DLR (SC) 140.


Contribution, suit for—Formal party, if

Where a judgment-debtor brought a Suit for contribution from the other
co-judgment-debtors in respect of joint decree for costs.

Held: Where a party is merely a formal defendant and not personally
interested in the result of the suit he cannot be made liable to contribute. 1 PLR (Dac) 620.



If a man takes the property of another without his consent by abuse of
the process of law it is an act of conversion.

Ali Bepari Vs. Nowsher liu Bepari (1951) 3
DLR 87—I PLR 106.


Co-proprietor and co-sharer landlord

‘Co-proprietor’ and ‘co-sharer landlord’ are not interchangeable terms.
A co-owner in a touji is not necessarily a co-sharer landlord in respect of
every tenancy under it. To determine whether a co-proprietor is a co-sharer
landlord, the test is whether the tenant is, or but for a special contract,
would be, liable to pay him any part of the rent of the holding.

Sahasrangsu Kanta Achargya Vs. Rajab Ali
Fakir (1954) 6 DLR 77.



The restaurant was purchased in June, 1936. The plaintiffs claim was
that he had paid the purchase money and the defendant was engaged as his
employee in the business on the terms that the defendant would be entitled to a
share of the profit as remuneration for his services and that the term of the
arrangement between the parties were oral. The defendant, on the other hand,
contended that both he and the plaintiff were parties in the business. About
the month of August, 1936 (2 months after the purchase of the restaurant and
eight years before the plaintiff giving evidence in Court) the plaintiff set
down in writing in a document (marked Ext. A) what he alleges to be terms of
the arrangement and handed over this document to one E, a lawyer and a friend
of the defendant. The document Ext. A was not signed but was admittedly written
by the plaintiff himself.

Held: A
document written in 1936 cannot corroborate evidence to be given by the writer
eight years later. The fact that in 1944, when the parties were at arms’
length, the plaintiff gave untrue evidence in the witness box does not afford
an adequate reason for supposupporting in August 1936 when the parties were
friendly and motive for misrepresentation was non-existent, he deliberately
misrepresented an arrangement arrived at 2 months earlier.

Ext. A is a most important contemporary document which correctly stated
the terms agreed between the parties.

Hubert James Vs. Gulam Hossain Paksuma
(1949) 1 DLR (PC) 5.


Co-sharer—Co-sharer, what it means—A co sharer, whatever the extent of his right
in the joint property, is a co-owner in every inch of that property to the
extent of his share until partition takes place which he can claim as a matter
of right.

Mardan Shah Vs. Shah Nasar Khan (1970) 22
DLR (SC) 149.

—Co-sharer’s possession—A co-sharer’s possession is a possession of all other co-sharers—
Adverse possession by co-sharer can be claimed by assertion of hostile
title—When exclusive title is claimed on the ground of ouster ad-valorem
court-fee to be paid in respect of such share.

A co-sharer is Hot dispossessed only because he was kept out of
possession as the possession of one co-sharer would be the possession for all.

Sashi Kumar Vs. Sreemati Kusum Kumari Debi
(1982) 34 DLR 128


—Co-sharer in tenancy and co-sharer
The expression ‘co-sharer in the tenancy’ and
‘co-sharer tenant of the holding’ are not synonymous—’Co-sharer in the tenancy’
includes ‘co-sharer tenant”. An unrecognized purchaser of a nontransferable
holding is a ‘co-sharer in the tenancy’ but not a ‘co-sharer tenant.’

Basharat Ullah Shaikh Vs. Faizuddin (1956)
8 DLR 367.



See under co-sharer’ Sayed Abul
Fazal Vs. Nirodbala Deb Roy (1956) 8 DLR 181.


Counsel’s privilege—Its limits—Derogatory language against Judges of a Court of Record
undermines confidence in justice.

S. M. Huq Vs. Honorable  Judges of High Court, Lahore. (1953) 5 DLR
(FC) 216.


Courts. Its meaning—There is no exhaustive definition of a Court in any statute. There are
essential certain characteristics which invest a body with the character of a

A Court is, according to Coke on Littleton, a place where justice is
judicially administered and justice is understood, in the forensic world, to be
a decision of a binding nature given on a point of dispute in a us between two
or more contending parties, by applying the law of the land to the facts of the
case, untrammeled by the subjective attitude of the decision-making body in
exercise of the judicial power of the state and by following a judicial

It has, therefore, been sometimes observed that although it is extremely
difficult to say what a Court is but ii is comparatively easy to say what a
Court is not.

IDBP Vs. Master Industries (1974) 26 DLR


—An authority, appointed under section 15 of the Payment of Wages Act,
is not a court but a persona designata.

Golam Ahmad Vs. Muhammad Ata Karim
(1957)9DLR 382.


—Tests for determining whether a tribunal is a court or not: (1) ‘acting
judicially’ —Acting judicially in order to be a sign of acting s a court, must
be acting as a part of the judicial machinery of the State, charged with the
duty of determining the rights of one subject against another or questions of
right between the subject and the State, and discharging its functions
according to the established form of judicial procedure: and (2) When a
tribunal acted in a manner similar to that of the court of justice, Its (i)
constitution, (ii) functions, and (iii) procedure shall have to be looked into
for determining whether it was a tribunal of judicial character. 8 PLR (Dac) 1163.


Court of Appeal— Change of law—Court of Appeal can take notice of law which has changed
after institution of the suit.

Mohan Singh Vs. Tan Mia (1970) 22 DLR 593.


Court of facts and issues of facts.

The Court of fact must decide all the issues of fact which arise between
the parties so that if the appellate Court takes a different view, the parties
are saved from further harassment.

Rakhal Chandra Vs. Benode Haldar (1976)28
DLR 421.


Court—When becomes functus officio. A distinction is to be drawn between a case when the proceeding has
terminated and one in which it has not terminated and the court still retains
control over it. Whether the court still retains control over the proceeding or
not must be determined upon the nature of the proceeding and the order passed

Sheik Ayezuddin Vs. Priya Shankar
Chowdhury (1954)6 DLR 595.


—Jurisdiction of a court over a decision made by an executive authority
when the same is authorized by law—The court is not competent to investigate
the grounds and reasonableness of such decision.

Ajit Kumar Das Vs. Province of East
Pakistan (1959) 11 DLR 243.


—Court to protect legislative competency, as regards past action.

It is to be observed that endeavor of the Court will be to protect the
legislative competency and the attempt of Parliament to validate past actions,
so far as canon of judicial interpretation of legislative power under the
Constitution permits.

Mafizur Rahman Khan Vs. Bangladesh (1982)
34 DLR (AD) 322.


—Court’s solemn duty—to come to a conclusion that the will was not
obtained by fraud or under influence.

Paresh Chandra Bhowmik Vs. Hiralal Nath
(1984)36 DLR (AD) 156.


—Propounded must satisfy the court with convincing reasons where
suspicious circumstances exist that the will was the genuine act of the

Paresh Chandra Bhowmick Vs. Ihiralal Nath
(1984)36 DLR (AD) 156.


Court—Subordinate Court in relation to an order passed by superior

If any step is taken by any subordinate Court having ordinary normal
jurisdiction in ignorance of any order of a superior Court. the subsequent
orders passed by the subordinate Court are not ipso facto null and void, but
they will stand unless they are either recalled or are set aside.

Rani Harshamukhi Vs. Maharaja Shashi Kanta
(1955) 7 DLR 473 (495 r.h. cot.).


—Although an ex parte order of stay is a valid order, it does not ipso
facto nullify all the proceedings of the Court of the first instance passed
subsequently. If the Court comes to know of the orders of the superior Court,
it should always act on the orders of the superior Court and the question is
not a question of communication only but is one of knowledge of the Court and
this knowledge may be direct or indirect.  Ibid.

—As soon as a subordinate Court is satisfied of the existence of such an
order of a superior Court, it must act on it. Ibid.

—Superior court’s observation and the Lower Court.

Observations and findings (in an ad-interim injunction matter) by the
appellate Court which do not arise for decision of the matter pending before it
should not influence the trial Court when the same matter comes before it for
final adjudication.

Modern Talkies Vs. Chowrangee Cinema
(1976) 28
DLR 415.


—Some of the trappings of a court do not necessarily make a civil court.

Mahendra Nath Biswas Vs. Dulal Ratan
(1959) 11 DLR 193.


—What is or is not a court—A body whose primary and only object is
administrative, executive or arbitral cannot be converted into a court.
Essential difference between judicial power and arbitral power—Whether a
tribunal is a court depends upon the substance—Incidents of a court.

Attorney-General of Australia Vs. The
Queen (1958) 10 DLR 9 (PC).


—Court and Tribunal—Difference between them—Authority under the Police
Officers (SP) Ordinance is tribunal.

There is a distinction between a Court and a tribunal. The Court has a
clear and distinct connotation whereas a tribunal assumes wide range of
character. It may be judicial tribunal, or it may be a domestic tribunal, and
in between these are various ranges of adjudicating authority, which arc more
often called administrative tribunals.

Bangladesh & ars. Vs. AKM Zahangir
Hossain (1982) 34 DLR (AD) 174.


Court Martial

The Court Martial set up under the Army Act is at best a military
tribunal and not a Court as contemplated under Article 109 of the Constitution.

Jamil Huq Vs. Bangladesh (1982) 34 DLR MD)

—Court Martial are ad-hoc courts, are out of the ambit of Civil Courts.

The Court Martial is the creation of the Army Act and these are all
ad-hoc Courts unlike the Courts as understood by the common parlance. Ibid.

—Court Martial if constituted legally, any jurisdictional error in
procedure—Immune from writ jurisdiction.

If the Court is constituted legally and if the error in procedure has
not affected the jurisdiction of the Court then the civil Court will not go
into the question as to the sufficiency of evidence because those entirely arc
beyond the realm of the writ jurisdiction. These are eminently within the
jurisdiction of an appellate Court. Ibid.


Court fee

Pre-emption suit—Decision as to the amount of court-fee on plaint and
question as regards jurisdiction of Court should be on merits and not on a
prima facie basis with reference to price given in sale deed. (1955) PLR (Lah) 1046.


—‘Cessante Ratione Legis Cessat Ipsa
Lex’—Reason to prevail.

Reason is the soul of the law and when reason of any particular law
ceases, so does the law itself (Cessante Ratione Legis Cessat Ipsa Lex).

Kari PaIan Mia Vs. State (1983) 35 DLR 118


‘Cultivable land’

The qualifying words ‘cultivable’ indicates that the land must be
capable of cultivation without alteration or conversion. It cannot mean a
conversion of land from one use to another. The word ‘cultivable’ clearly shows
that the legislature never intended to include hat and bazar within clause(ii)
of section 20(2)b) of East Bengal State Acquisition and Tenancy Act.

Yusuf Ali Chowdhury Vs. Province of East
Pakistan (1957) 9 DLR 674.


of custody—loses its relevance when the girl concerned is found to be aged over
16 years—She neither being an accused or a witness in the case cannot be held
in detention under courts order but is free to go to any place of her liking.

Ananda Mohan Vs. Stale. (1983) 35 DLR 315.


Customary Law—Form and applicability: Law of inheritance—Onus of proof—where a party sets up the pica of
customary law in preference to personal law—onus is upon the party which sets
up the plea.

Mst. Qaiser Khatoon Vs. Mvi. Abdul Huq
(1973) 25 DLR (SC) 104.


—Onus of proof of the existence of customary law—Onus of proving
existence of legal necessity for transfer of ancestral property in Gujjar tribe
(NWFP) is on the person who supports transfer.

Sarfraz Vs. Md. Khan (1970) 22 DLR (SC) 34.


—Customary Law (Punjab).

Muslim Jats of Gurdaspur District (West Pakistan) are governed by
Chundawand rule of succession—Widow in presence of sons of her husband by
another wife entitled to half share of property as widow’s customary estate
terminable on her death or remarriage.

Mushtaq Ahmad Vs. Mst. Hakim Bibi (1969)21
DLR (SC) 375.


Customary right—Right of pasturage when
can be claimed.

Customary right of pasturage presupposes that it must be in existence on
the assertion of that right by the person enjoying the same as of right and not
dependant on the consent or otherwise of anybody else.

A Court of Appeal can take notice of law which has changed after
institution of the suit.

Mohan Singh Vs. Tan Mia (1970) 22 DLR 593.


ripens into a recognized right and obtains force of law— Burden of proof.

It is undoubted that a custom observed in a particular district derives
its force from the fact that it has, from long usage, obtained in that
district, the force of law. It must be ancient; .but it is not of the essence
of this rule that its antiquity must in every case be carried back to a period
beyond the memory of man—still less that it is ancient in the English technical
sense. Ii will depend upon the circumstances of each case what antiquity must
be established before the custom can be accepted. What is necessary to be
proved is that the usage has been acted upon in practice for such a long period
and with such invariability as to show that it has, by common consent, been submitted
to as the established governing rule of the particular district.

Intaj Ali Vs. Yadulla. (1960) 12 DLR 573.


—A customary right can exist only in relation to the inhabitants of a
district or a locality and it cannot be claimed in respect of the public at
large. The custom if established, makes the local law of the district and it
creates a right in each of the inhabitants irrespective of his interest in any
particular property. If the law has to uphold it as a right, it should be
immemorial in origin, certain and reasonable in nature and continuous in use.

Asia Khatun Vs. Sufia Banu. (1955) 7 DLR


Customs officers.

Customs officers do not possess sufficient competency to be entrusted
with the duty where the law requires careful consideration of questions of
discharging burden of proof.

Collector of Customs Karachi Vs. Haji
Usman Haji Ghani. (1959) II DLR (SC) 200 (220).


Customs Waters.

It means a 12-mile belt of the sea from the base line (of Bangladesh sea

M. Samboom Asavhame Vs. Bangladesh (1979)
31 DLR 256.



In the current settlement, 1932 the dependants were recorded as
dakhalkar, that person in possession.

It cannot be said that the settlement record does not recognize the
tenancy, merely because the word dakhaikar has been used. The entry is to be
read as a whole.

Braja Mohan Shaha Vs. Abu Syed (1953) 5
DLR 209.



Evidentiary value of dakhilas which are but private documents—Dakhilas
in order to carry weight in a court of law has to be proved by the scribe who wrote
them by the signature of the excitant and when such signatures are disputed by comparing
disputed signatures.

Kalimuddin Sarder Vs. Assistant Custodian
Enemy Property (1983) 35 DLR 129.


—Its evidentiary value about the question
of possession.

Dakhilas cannot be held to be an evidence of hostile possession and
ouster of a co-sharer. By mere payment of rent of land a co-sharer cannot
exclude another co-sharer’s title to it.

Dr. Jamiar Rahman Asia Bibi Vs. Tajuddin
Sikder (1978) 30 DLR 259.



—Principle for assessment of damages—Place the party who has suffered in
the same position as he would have been if he had not sustained the
wrong—Assessment of replacement cost should be made on the date when the
property was destroyed.

BIWT Corp. Vs. Hellenic Lines Ltd. (1976)
28 DLR 77.


Assessment of the amount of damages for
injuries caused to the plaintiff.

The plaintiff suffered a severe injury on his right foot resulting in
fractures of bones. This injury was responsible for disabling the plaintiff in
regard to his movement for 5 or 6 months, and whatever physical deformity may
have been complained of was due to this injury.

Abdul Awal Vs. Mofasiluddin (1975) 27 DLR


—In a suit for damages for the alleged cutting away of the paddy, the
main question is whether the plaintiff is in possession of the land and whether
the plaintiff grew paddy.

Rakhal Chandra Vs. Benode Haldar (1976) 28
DLR 421.


“Damages” in case of inevitable
accident—Cannot be claimed.

Defendant Vessel Taika Maru in order to avoid accident with a third
vessel struck the plaintiff-vessel MV Gai and it was pleaded as an inevitable
accident in defense.

Held: The
accident was an inevitable accident and the accident Look place in spite of all
the efforts of the Master and Sukhanies of the vessel Taika Maru and there was
no negligence or absence of good seamanship on the pan of the crew of M V. Taika
Maru and that the accident took place in order to avert a more serious

Owners of the Vessel M. V. Gazi Rahi,nani
Industries Lid. Vs. Owners and Parties interested in the Vessel MV ‘Taika Maru”
(1968) 20 DLR 225.


Damages, suit for—A suit for damages for the use and occupation of land and mesne profit
when maintainable.

Plaintiffs brought a suit for recovery of money by way of damages
against the defendant on the allegation that they had cut away the paddy grown
by the plaintiffs on their land.

Held: The
plaintiffs having not filed a suit for declaration of title could have asked
for compensation for the reaping away of paddy had they been able to prove
their possession and growing of the paddy. Otherwise the plaintiffs in such a
suit have to pay for declaration of their title to the land and its recovery
from wrongful possession and must show that the suit was filed within the
prescribed period of time. The plaintiffs in the instant case filed a money
suit where their title was incidentally found by the Courts below. A suit for
damages for the use and occupation of land and mesne profit when maintainable
where the plaintiffs’ title to the land and the wrongful use and occupation of
it by the defendant are proved.

Haleman Bewa Vs. Gahar Ali Mondol  (1980) 32 DLR (AD) 136.


—Damages for use and occupation— Title of the suit land found with the plaintiff— Defendant liable to
pay damage.

If the defendant had chosen to grow paddy on somebody elses land, they
have done so at their own risk and peril and must pay for it. The suit for
compensation irrespective of the plaintiff’s possession was maintainable at his
instance when he has been able to prove his title in the Suit land.

Gaher Ali Mandal Vs. Manik Sikder (1975)
27 DLR 400.


Day”—Commencement of day under
the Bengalee calendar.

A day under the Bengalee calendar starts with the sunrise and continues
up to sunrise of the following day whereas a day according to the English
calendar commences on the expiry of 12 O’clock at mid-night and Continues up to
the following 12 O’clock mid-night.

Surutannessa Bibi Vs. Debendra Nath Barman
(1966) 18 DLR 490.

Dearness allowance—Principles on which it
is given.

Dearness allowance is given to counteract the rise in prices when it is
considered that the stage of revision of the basic wages is not reached, but if
a revision takes place with reference to the prices up-to-date there is hardly
any justification for the dearness allowance.

Even if it is assumed that while revising the basic wages, dearness
allowance may also be given it must be on the ground that the basic wage is
raised to meet true rise in prices partially and in order to meet the rest of the
rise in prices dearness allowance is given.

Dalmia Cement Co. Vs. Dalmia Cement
Factory Workers Union (1958) 10 DLR (SC) 157.


Death Register

Birth and Death Register—Proof of age.

Birth and Death Register maintained under Act IV of 1873 and the Register
of births and deaths kept at the Police Station under the Village Choukidar Act
(Act VI of 1870) arc public documents within the meaning of sections 74 and 35
of the Evidence Act. Entries in birth and death registers arc prima-facie proof
of statements as to age contained Therein.

Abdul Rahman Vs. Upendra Narayan Majumdar.
(1952) 4 DLR 237.



If the decree is one without jurisdiction—Whether pecuniary, territorial
or in respect of the judgment-debtor—the executing Court can go into the
question of excitability.

Hajee Md. Ahsanullah Vs. Arafatunessa Bibi
(1981) 33 DLR (AD) 17.


—Fraudulent decree—A decree alleged to have been obtained by fraud cannot be set aside
without express finding as to the effect that the decree was obtained by fraud.

Mofazzal Molla Vs. Parul Bala Debi (1972) 24
DLR 116.


—Decree when infructuous.

Court not to pass a decree which may be infructuous. No court should
pass a decree which is infructuous and can be set at naught at the will of a
person who has not been made a party to the Suit.

F was a necessary party to the suit but due to her absence on account of
not impleading her as a party to the suit the entire Suit cannot fail. The
plaintiffs can be no suited only in respect of the land in which F has
possession and interest.

Fakir Chand Mia Vs. Qumaruzzaman (1974) 26
DLR 233.


—No Court should pass a decree which is infructuous. Person not made
party to a Suit.

It is one of the established principles of judicial procedure that no
court should pass a decree which is infructuous and can be sot at naught at the
will of a person who has not been made a party to the suit.

Asadunnessa Vs. Qumaruzzaman (1974)26 DLR


—Merger of: Trial Court’s decree becomes merged in the decree of the appellate
Court and consequently after the merger trial Court loses jurisdiction to amend
the decree.

Sajeda Khatoon Vs. Mostafa Khatoon (1976)
28 DLR 221.


—Decree in a mortgage suit.

In a compromise decree in a mortgages suit where it was provided that on
failure to pay single installment the whole amount outstanding would become due
and recoverable by sale of mortgage properties and in case of deficiency by
sale of mortgagor’s other properties and also from the person of the mortgagor
by executing the decree:

Held: The
compromise decree went beyond final decree in directing sale of the properties
of the mortgagor not included in the mortgage. But the decree itself could not
be held to contain a personal decree as on the date of the compromise the court
was not in a position to determine whether any balance would be legally
recoverable after the sale. The decree amounted to more than a submission by
the mortgagor to consent to a personal decree for the payment of the ultimate
balance, if and when any such balances should be found to be due and legally

Joy Chand Lal Babu Vs. Kamalaksha
Chowdhury (1949) 1 DLR 46 (PC).


—‘Preliminary decree’.

It is a completely erroneous view that the pre. liminary decree once
passed cannot be amended.

Omed All Sikder Vs. Arman Sikder (1979)31
DLR (AD) 320.


—Decree, void and voidable—Distinction

The distinction between void and voidable decree is to be borne in mind.
If the decree is voidable then unless it is avoided by a proper procedure, the
decree stands, and is to be executed. In this regard wrong exercise of
jurisdiction and absence of jurisdiction is to be noticed.

Hajee Md. Ahsanullah Vs. Arafatunnessa
Bibi (1981) 33 DLR (AD) 17


Deemed to accrue or arise.

The expression “deemed to accrue or arise” cannot be extended to include
income from a nonexistent source of income like irrecoverable loans advanced by
the assessee to its customers.

Commissioner of Income Tax Vs. Lackatoorah
Tea Co. (1979)31 DLR 396.


Declaratory suit.

—No consequential relief need be sought—Document being forged no
consequential relief needed.

Faiz Ahmed Vs. KA Wahab (1984)36 DLR 357.


“Defamatory statement”—defined.

Defamatory statement is a statement which, if published, of and
concerning a person, is calculated to lower him in the estimation of
right-thinking men or cause him to be shunned or avoided or to expose him to
hatred, contempt or ridicule, or to convey an imputation on him disparaging or
injurious to him in his Office, profession, calling, trade or business.

Khawaja Nooruddin Vs. Hamidul Huq
Chowdhury (1963) 15 DLR 501.


—Double standard for ascertaining whether a statement is
defamatory—according to the literacy and intelligence of the people concerned.

In a democracy where the mass is conscious of its power, sensitive about
the violation of the trust in a person and is vigilant and anxious to enforce
its power to bring the culprit to book and the person entrusted with power
wants to live up to the expectation of the public or voters and eager to accept
the verdict of the people and places his cards on the table for ascertaining
the elements whether there has been any defamation, one standard should be used
and in a society where the public is illiterate, unconscious of its power and
does not know how to enforce its power to bring the betrayers to book the
person entrusted being skilled takes recourse to all steps to hood-wink the
public, another standard in ascertaining whether there has been any defamation
should be used.

In our country most of the people are illiterate and unmindful of the
events that happen in the Legislature or of the actions of their
representatives. They are not conscious of their power nor do they criticize
their representatives or take them to task. Only a handful of them is
criticizing—the Press Ling one of them. In such circumstances, in our country,
at the present moment, the Press should have more liberty and latitude than it
has in other advanced Countries in criticizing the popular representatives and
the Government in order to keep them within the bounds, it being the only influential
body, at present, in our country. Though the Press may go a bit out of the way,
it should not be hauled up for that excess. Human nature being as it is, a man,
in power, unrestricted, is expected to go to excess under circumstances.

Khawaja Nooruddin is. Hamidul Huq
Chowdhury (1 963)15 DLR 501.

—Presumption of law as to falsity and ma lice—Presumption rebuttable. Ibid.

—Damage claimed for defamatory statement— burden that is on the
plaintiff. Ibid.

—Comment otherwise fair even though deviates slightly from accuracy not
within the mischief of law. Ibid.


Default order.

—(such as “the case shall stand dismissed’, etc.) when made, different
considerations arise— Crucial test is to find the real purport of die order—
When after passing an order a court becomes functus
and when not. Whether an order is a self-executory default order or
a conditional order—the court is the best authority to judge.

Hajee Md. Ahsanullah Vs. Arafatunnessa
Bibi (1981) 33 DLR (AD) 17


—Apart from this even, if default has taken place by virtue of
self-executory order, the Court can review its own order as provided in CP
Code. Thus whether the order is final in the sense that with the passing of it
the court as far as the question of extension of time is concerned becomes functus
officio or whether it is just a conditional order—”the court passing the
conditional order is the best authority to judge”—Over and above the court can
review its own order under the provisions of CP Code and extend deposit time on
the authority of reviewing its own order. Ibid.

—When part of costs ordered to be deposited out of time does not amount
to default.

Tajendra Dhar Vs. Rohini Ranjan Saha
(1971) 23 DLR 45.


Delay causing loss

Circumstances which caused further delay in getting the goods to be
taken into account while assessing the loss.

Al-Sayer Navigation Co. Vs. Delta
International Traders Ltd. (1982) 34 DLR (AD) 111.


“Delegated legislation”

—Instructions issued under the Act do not bear the character of
delegated legislation.

The instructions which the Central Government issue under Act III of
1956 are not of the nature of delegated legislation at all, for, the.
legislature itself having determined that claims were to be filed in respect of
the properties left in India by displaced persons, the instructions merely
provided as to whom from amongst that class should be treated as entitled to
lodge such a claim.

Syed Abdur Rashid Vs. Pakistan (1962)14
DLR (SC) 41.


“Delegation of legislative power”

Bestowal of large discretion to executive authority by the legislature
under the Arms Act does not amount to delegation of legislative authority.

District Magistrate, Lahore Vs. Syed Raza
Kazim (1961) 13 DLR (SC) 66.


“Delegation”—Judicial or quasi-judicial administration bodies and Courts can delegate
their functions.

Mian Muhammad Sarif Vs. Member, Election
Commission, Lahore (1968) 20 DLR (WP)

—“Delegation” of functions by EIection Commission and Chief Election
Commissioner permissible.  Ibid.


Delivery of possession.

Certified copy of the writ of delivery of possession supported by the
evidence of the decree holder himself and one of the mukabila witnesses is
sufficient to establish that delivery of possession was given to the decree

Rakhal Chandra Das Vs. Benccha Khatun (1972)
24 DLR 63.

—Symbolical delivery of possession, in the eye of law, has the effect of
actual possession so far as judgment-debtors are concerned. Ibid.


—Symbolical delivery of possession would operate as against the
judgment-debtor but will be of no avail against a person who was not a party to
the proceeding.

With regard to sale by Court, the position is that, as against the
judgment-debtor, symbolical possession obtained by the purchaser would amount
to dispossession of the judgment-debtor.

But with regard to a person who is not party to the suit, physical
possession, that is, actual possession, must be established.

Afajuddin Vs. Munshi Sona Meah (1965) 17 DLR


—Delivery of possession—Symbolical

X, the owner of the property transferred the suit-lands to Y. Subsequent
to the transfer the property was sold in certificate proceedings in which X was
a party and not Y, and thereafter symbolical possession was taken against X.
Held: Y’s interest not affected by the sale.

The position resolves itself thus: X, the original owner of the suit
lands, transferred them to plaintiffs. Subsequent to such transference, there
was a default in payment of public dues in respect of the suit lands which were
put to certificate-sale where in X was made a party but not the plaintiffs. A
delivery of mere symbolical possession of the suit-lands to the purchaser of
the certificate-sale will not amount to dispossession of plaintiffs, who were
not parties to the certificate-proceedings. Therefore, as against plaintiffs, the
only kind of dispossession by the certificate purchaser must be actual physical

Afajuddin Vs. Munshi Sona Meah (1965) 17
DLR 313.


—Delivery of possession, Order of— when

Until and unless the order’ of the executing Court recalling the writ of
delivery of possession is communicated to the peon charged with the execution
of the writ of delivery of possession, the delivery of possession given by him
cannot be characterised as ultra vires.

Mozibur Rahman Vs. Jamini Moshu (1955) 7 DLR 82.


Departmental Enquiry

Departmental enquiry about the conduct of one of its employees—cannot be
interfered with by a court of law, as long as such enquiry is held in
accordance with procedure laid down and does not violate the principle of
natural justice.

Chittagong Port Authority Vs. Sujjat Ali
(1984) 36 DLR 181.

—A suit in a court of law against a departmental enquiry—Court will
follow the same principle of non-interferences long as the departmental rules
are observed and principle of natural justice is followed. Ibid.


Depreciation fund

A depreciation fund is an absolute necessity in relation to any modern
industry and is maintained with a view to provide for replacement of machinery,
and this need not be only due to wear and tear over a long period of time;
there may be an accident, or certain machinery may suffer from major defects
and require replacement for the purpose of proper operation of the company. An
accident may occur, such as an earthquake, and for such cases it is necessary
that there should be provision available to the company to make good the damage
out of its own resources.

A 5 per cent rate of deduction out of the total profits of a company on
account of the depreciation fund is one which is in accordance with industrial
practice, and is allowed for purposes of assessment of income tax as well.

Zeal Pak. Cement Factory Vs. Cement Labour
Association (1960) 12 DLR (SC)1.


Deputation posts.

Officers of a Province holding a post on deputation to the Centre cannot
validly object if he is reverted to his old post in the Province, cannot set up
the plea that his post on deputation was higher in rank, because he does not
acquire any right in himself to hold such a post. A reduction from a deputation
post is not a reduction in rank.

Pakistan Vs. Fazlur Rahman Khundkar
(1959)11 DLR (SC) 253.


“Determine” —The word shows that the Government cannot act arbitrarily.

The word “determine” in section 4 of the Act shows that the Central
Government cannot act arbitrarily and without a factual basis, and the
legislature has laid down sufficient norms and standard for the purpose of
determination of such rate.

Adamjee Jute Mills Vs. Controller of
Imports (1968) 20 DLR 791


Deviation of ship.

—Ship’s owner held responsible for unauthorized deviation of the ship
which carried the concerned goods.

In the instant case, the ship instead of proceeding from a North Yemen
port to Bangladesh proceeded to the opposite direction to Dar-es-Salam. It was
in violation of the bill of lading. There is no doubt that this deviation was
unauthorized. The ship owners, therefore, must be held responsible for this
unjustified deviation and this deviation is one of the causes of delay.

Al-Sayer Navigation Co. Vs. Delta
International Traders Ltd. (1982) 34 DLR (AD) 111


Discharge and dismissal

The term ‘discharge’ as defined
under clause (I) of section 2 of the Standing Orders, 1965 means “the
termination of services of a worker by the employer for reasons of physical or
mental incapacity or continued ill-health of the worker or such other similar
reasons not amounting to misconduct and the term ‘dismissal’ as defined under
clause (g) of section 2 of the said Standing Orders means the termination of
service of a worker by the employer for misconduct.

Aminul Islam Vs. James Finlay (1974) 26
DLR (SC) 33.



A “discharged” employee entitled to the benefit of section 11 of the

If the employer discharges an employee even on grounds of physical
incapacity that too, would amount to a discharge” which will entitle the employee
to the benefits contemplated by section 11 of East Bengal Act I of 1952.

A Sukur Vs. Chairman, 1st Labour Court
(1968)20 DLR 520.


Disciplined force”

—Army, navy and air force is part of the disciplined force.

In the Constitution, for the first time, a new conception has been
introduced, that of ‘disciplined force’, in the services of Bangladesh.

Jamil Huq Vs. Bangladesh (1982) 34 DLR
(AD) 126.


‘Discrepant statement’ and ‘contradictory statement’

A discrepant statement is not fatal to the credibility of a witness. A
contradictory statement is one which is conflicting and is not reconcilable
with other statement either of his own or any other witness. The question in
such case is that, it is open to a court of fact either to reject the whole evidence
of a witness as untrustworthy or to reject the contradictory part as unreliable
or to rely upon that portion, which, in the opinion of the court, fits in with
other evidence and die facts and circumstances of the case. The exercise of the
power is guided by judicial discretion, and cannot be exercised either
arbitrarily or capriciously.

Moyezuddin Vs. State (1979) 31 DLR (AD)



—Dismissal order passed by an authority was set aside by another
competent authority—The next superior authority cannot uphold the original
order of dismissal as the dismissal order was in existence having been set
aside in the meanwhile— A Sub-Inspector of Police was dismissed by the

Superintendent of Police on a charge of corruption and misconduct. On an
appeal by the aggrieved party, the Deputy Inspector-General set aside the order
of dismissal and remanded the proceeding for a fresh enquiry. On remand the S.
P. again passed an order of dismissal. Thereupon an appeal was again preferred
before the DIG who again set aside the order of dismissal and directed a de
novo enquiry. Thereafter the matter was taken to the Inspector-General of
Police, who by his order dated 18-3-55 upheld the order of the S.P., by whom
the order of dismissal, was originally passed.

Held: On
18-3-55, when the IGP passed the order upholding the order of dismissal passed
by the SP, the dismissal order did not subsist and was of no legal effect at
that time, inasmuch as it had been set aside by the order of the DIG and as
such the order of  IGP was misconceived.

ASM Shamsul Alam Chowdhury Vs. Province of
E Pak. (1962) 14 DLR 553.


—“Dismissal for default’ and not a Judgment—Party may be heard.

Mozahar Sikder Vs. Farid uddin Ahmed
(1983) 35 DLR 235.


—Dismissal for non-appearance

Counsel present in Court when the case was called on for hearing—Prayers
for an adjournment being refused counsel left the Court for fetching his brief
but he found the case on return to have been dismissed for default and the
prayer (orally as well by petition) to have the case restored rejected:

Held: In
refusing the prayer for restoration, the Court acted with undue severity and
the Supreme Court made an order restoring the case for hearing according to

Ali Akbar Vs. Khatun Nessa. (1959) 11 DLR
(SC) 367.


Dissolution of partnership—Company affairs

Confidence between the two share-holders completely shook—Dissolution

Rahimuddin Ahmed Vs. Bengal Water Ways Ltd.
(1979) 31 DLR 82.


Dividend—What it means

Dividend means the sum of money set aside out of profits of a company
for distribution amongst the share-holders.

Commr. of Income Tax Vs. Mrs. Masuda Khatun
(1982)34 DLR (AD) 85.


Division Bench

Division Bench (of the High Court) when on a point of law takes a
different view from another Division Bench—Procedure it should follow— Where a
Division Bench of the High Court is

inclined to take a different view from that in an earlier judgment of a
similar Division Bench, one course open to the Court was to “have expressed
their doubts regarding the view taken in the precedent case in a Court of
co-equal jurisdiction, while yet following that view, and left the matter to be
raised in appeal before this Court. The alternative course, under the Rules of
die Court, was to refer the matter to a larger Bench.

Province of East Pak. Vs. Serajul Huq
Patwari (1967)19 DLR (SC) 281.


Doctrine of Eclipse

The doctrine of eclipse can be made applicable, although the term does
not appear to be self- explanatory only to a pre-constitutional law which is
otherwise a good law but, of which, on the enforcement of fundamental rights,
life-breath has been taken out. It remains in a state of suspended animation
and on the removal of the spell, as it were, it springs back into life, of its
own motion without any further legislative effort. If the theory of subject-
wise distribution of legislative powers as the only basis of legislative
incompetence is accepted, then there can hardly be any case of a law being void
ab initio under a unitary constitution.

Reference to the decisions under the American Constitution for the
purpose of interpreting the provisions of the Constitution in another country
cannot always be useful because of the fact that the Constitutions of the two
countries arc drafted entirely in different languages. In the Constitution of
the United States there is no such provision as contained in Article 4 of the
1956 Constitution of Pakistan or Article 6 of 1962 Constitution of Pakistan
which arc almost in the same terms as Article 13 of the Indian Constitution.

Abdul Majid Bepari Vs. Kashem Ali (1975)
27 DLR 1.


Doctrine of Election

What it means. The doctrine of election is based on the principle that
the election must be voluntary and not one under duress or compulsion.

Modern Talkies Vs. Chowrangee Cinema
(1976) 28 DLR 415.


Doctrine of “indoor management”

Its meaning. The doctrine of “indoor management’ is to the effect that
persons contracting with a company and dealing in good faith may assume that
acts within its constitution and powers have been duly performed and are not
bound to enquire whether acts of internal management have been regularly done.

In the present case the lessee entered into an agreement of lease on the
terms sealed by the Secretary of the Society. It was subsequently contended on
behalf of the society that the Secretary was not authorized by the Managing
Committee to enter into any contract and as such, the lease was not a valid

Held: As the
Secretary was entitled under the by-laws of the Society to enter into contract
on behalf of the Society the lessee was not required to enquire whether the
Society actually authorized the Secretary to enter upon the contract. Such
transaction with the Society is saved by the doctrine of “indoor management’.

Pak. Employees Co-operative housing
Society Ltd. Vs. Anwar Sultan (1969)21 DLR (14’?) 345.



The contention was that the document was incorrectly read and
interpreted by High Court—But the document not printed or placed on record in
appeal in Supreme Court—Objection rejected.

Divisibility of transaction of sale—No presumption on basis of recital
in the deed that vendees took the property in specified shares, if
consideration was mentioned as a lump sum.

Abdullah Vs. Abdul Karim (1968) 20 DLR
(SC) 204.


—Two documents relating same transaction.

When a transaction is made by more than one document, then both the
documents should be read together and the cumulative effect should be taken
into consideration.

Dr. Habibur Rahman Vs. Md. Mansur (1973)
25 DLR 211.


—Documents disputed, admissibility of—in a writ proceeding before the
High Court.

Disputed documents cannot be accepted in evidence without strict proof
thereof which is not possible in summary writ proceedings, the proper forum for
proving such documents is the Civil Court.

In writ petitions parties are permitted to adduce evidence by affidavit
but that does not mean that the documents annexed with the affidavit by the
parties become ipso facto admissible irrespective of the rule of proof as laid
down in the Evidence Act.

Anwar Hossain Dewan Vs. Deputy Custodian
Enemy Properties (1969) 21 DLR 938.


—Attestation of document—Attestation of document—is no evidence as to the recital or contents

Basanta Kumar Basak Vs. Santosh Kumar
Basak (1972)24 DLR 84.


Document—Construction of—Principle of exposition of one Act by language of another not applicable
to instrument—In construing instrument, intention of parties is die primary

The principle of exposition of one Act by language of another cannot
apply to the Instrument of Accession drawn up by a functionary of the Ministry
of State and Frontier Regions. Indeed, the primary consideration is construing
an instrument is to ascertain the intention of the parties to the instrument. CPSLA
No. K 142 of 1968.

Fatoomal Vs. Rehabilitation Commissioner,
Khairpur Division (1969) 21 DLR (SC) 291.

Photostat copies in the Court not

In this case instead of giving original copies of the document or
authenticated copies thereof as required under the rules, Photostat copies of the
documents have been appended which are in violation of the rules, and arc also
not readable without the aid of magnifying glass.

Secretary of the Govt. of East Pakistan Vs. Manik Chand Sardar (1968) 20
DLR 908.


—One document executed by several vendors owning different lands—not

Execution of a common document by several vendors is not irregular, if
the lands sought to be transferred have been specifically described in the

Ful Chand Das Vs. Mohammad Hammad (1982) 34 DLR
(AD) 364.


—Execution and registration of— Sufficient
to pass title.

Consideration may be a cash consideration or a promise to pay. In either
case, title will pass with the execution and registration of the deed. In case
of promise to pay consideration, the vendor may have a lien on the properties
sold till considerations arc paid but title will pass with the execution and
registration of the deed.

Sardar Menhazuddjn Ahmed Vs. Sudhir Kumar
(1958) 10 DLR
621—8 PLR (Dacca) 454.


—Execution and registration not sufficient
proof of voluntary execution

Mere registration cannot be regarded as affording sufficient proof of
the voluntary execution of the will much less of us being executed while of
sound disposing mind. Where there are circumstance of suspicion, it is the duty
of the Courts to accept such evidence with great caution.

Per Mohammad Munir, CJ,—Proof of registration proceedings raises the
presumption that these proceedings were regular and honestly carried out, and
the evidence of due registration is itself some evidence of execution against
the person against whom the document is sought to be proved.

Fate Mohammad Vs. Mst. Niamat (1955) 7 DLR
(FC) 165.


Thumb impression.

Genuineness of executants thumb impression does not exonerate him from
proving his knowledge  of the document’s

Thumb impression of the executants of a document was found to be genuine
by the Finger Print Expert but that alone cannot exonerate the defendant from
proving that the said executants executed the Kabala knowing fully the contents

Tamijur Rahman Vs. Md. Altafur Rahman
(1969) 21 DLR 977:


—Document of transfer of immovable
property by a foreigner.

Kabala executed and registered in Bangladesh in 1975—Presumption is the
executants was citizen of Bangladesh as no Indian national could transfer any
property in Bangladesh (in 1975) by registration.

A kaixila executed and registered in Bangladesh in 1975 created a
presumption that the registration authority was satisfied that the execuinni
was a valid citizen and national of Bangladesh since an Indian national as such
could not transfer any property in Bangladesh by way of any registered deed.

The authority in the Government could not question and annual the
validity of such title by an executive order. If the Government wanted to claim
the title in such property it could only do so by way of an appropriate suit
for declaration of title and cancellation of the registered kabala as such.

Sultanuddin Chowdhury Vs. Bangladesh
(1980) 32 DLR 252.


Domestic Enquiry

Domestic Enquiry is not governed by any statutory rules—Principles of
natural justice (where do incstic enquiry is held) require that allegation
against a person should be brought to his notice and he be given an opportunity
to submit his defense.

MA Hai Vs. Trading Corporation of
Bangladesh (1979)31 DLR 326.


Domestic tribunal

Order passed by a domestic tribunal to what extent subject to scrutiny—A
domestic tribunal not bound by the provisions of Evidence Act.

Bikash Ranjan Vs. Chairman, 2nd Labour
Court (1977) 29 DLR (SC) 280.


Domicile of Origin

Loss of domicile of origin how to be
established. To every adult person the law assigns a domicile which is called
the domicile of origin and which remains attached to him until new and
different domicile takes its place.

There is absolutely nothing on the record to show that the accused
respondent ever became an Indian citizen in substitution of his domicile of
origin. Therefore, the domicile of origin remains attached to him.


Onus of proving that a domicile has been chosen in substitution for
domicile of origin lies upon those who assert that the domicile of origin has
been lost and that the domicile of origin continues unless a fixed and settled
intention of abandoning the first domicile and acquiring another as sole domicile
is clearly shown.

Superintendent and Remembrance of Legal
Affairs, Govt. of Bangladesh Vs. Adyaita Chandra Adhikary. (1981) 33 DLR 314.


Due process of law.

Violation of—Government and its officer’s colossal irresponsibility in
discharge of responsibility ‘imposed by law causing great sufferings to an
innocent citizen.

Radha Kanta Banik Vs. The Deputy
Commissioner of Rangpur (1979) 31 DLR 352=(1957) 9 DLR (SC) 21.