Words and Phrases
“Earnest” and “earnest money”
Earnest is something which must be given in the shape of money or some
tangible thing at the time of the conclusion of the contract and should be
available with the seller for forfeiture in case the transaction fails through
the fault of the purchaser.
Earnest money must be paid at the time of the conclusion of the
contract; it must be lying with the seller and that it is not the case any
promise to pay the amount in lieu of earnest money cannot be treated as such
and cannot be forfeited for the breach of the contract.
In a case where the seller besides forfeiting the earnest money has also
after notice to the purchaser sold the goods in question, it is his duty to
account for the sale proceeds and if the sale proceeds are sufficient to
reimburse his claim, he must refund the amount lying with him as earnest money.
The seller has no option either to forfeit the earnest money (and keep quiet)
or to forfeit the earnest money and reimburse his losses by selling the goods
at the risk and cost of the defaulting party; If he exercises the option and
the sale proceeds are more than sufficient to meet his claim, then both in
equity and law, he is bound to refund the amount of the earnest money forfeited
by him. PLR (1960) WP 685.
Easement—Right of way when cannot be
claimed.
A right of way, as an easement of necessity, cannot be claimed for a
convenient shortcut and for avoiding a cumbrous detour.
Abdul Hamid Vs. Abul Hussain (1978)30 DLR
304.
Educational institution
Requisition of such institution under the Government authority for the
purpose of allowing it to function properly cannot be found fault with.
Deputy Commissioner Vs. Winifred Rubi
(1982) 34 DLR (AD) 162.
—Rendering service beneficial to the nation— Because of the high charge
in tuition fees—not a valid ground to overlook its importance.
The school is in the heart of the city of Dacca and it is catering
education for about 2000 students in three shifts. Obviously it is rendering a
service to the community in general in training the future generation of the
nation. If the fees are high the Court has nothing to do because it is
essentially a question of bare economics.
Bangladesh represented by the Deputy
Commissioner Vs. Winifred Rubi (1982) 34 DLR (AD) 162.
“Election” what the term
connotes’.
Election means something more than mere fixation of date and time of
election and the making of programme for election.
In its comprehensive sense, ‘election’ embraces the whole procedure
whereby an entire process whereof the declaration of a candidate as duly
elected is the result. In other words, ‘election’ means all the different steps
or stages of the election, commencing from the issue of notification calling
upon the constituency or the electorate to elect and ending with the
publication of the result of the poll. These steps or stages of election do
necessarily include, among others, scrutiny of nomination papers and their
acceptance or rejection, declaration of results of the election and the
certification of the name of the candidates declared elected.
Serajul Islam Vs. Mr. Farid Ahmed (1968)
20 DLR 202.
Election dispute.
Rejection of a ballot paper, which was cast in favour of a particular
candidate, without giving him opportunity against the rejection of the ballot
paper offends the principle of natural justice.
Md. Nurul Haque Joardar Vs. Province of
East Pakistan (1971) 23DLR 17.
—Appeal before the Commissioner while the dispute is pending with the
Collector—Not maintainable. Ibid.
Election Tribunal
Election petition before Election Tribunal which has powers of a civil
court under CPC.
An Election Tribunal has all the powers of a Civil Court trying a suit
under the Code of Civil Procedure for the purpose of trying the election
dispute.
Abul Basher Chowdhury Vs. Habibur Rahman
Mia (1979) 31 DLR (AD) 296.
Employees in autonomous body— Procedure to follow in domestic enquiry against employees.
Disciplinary action against employees in autonomous bodies do not
attract provisions of Articles 133 and 135 of the Constitution of Bangladesh.
The present proceedings arc in relation to autonomous bodies for holding
domestic enquiries. In taking disciplinary action against employees engaged in
autonomous bodies the procedure prescribed for taking disciplinary action in
the service rules should be complied with. The elaborate procedure and
requirements which are available in a court of law to an accused or the
protection available in accordance with the service rules framed under Articles
133 and 135 of the Constitution of Bangladesh are not binding upon the employer
for taking disciplinary action against its employees.
Md. Loqman Vs. BADC (1980) 32 DLR 83.
—Employees of Nationalized Industries.
Employees of Nationalized Industries are not Government servants or
persons in the service of the Republic. Even in the case of government servants
or persons in the service of the Republic, they are not entitled to the benefit
of any recommendation of the Pay Commission unless such recommendations are
implemented by the Government by publishing it in the official gazette under
Act XXXII of 1975.
Manager, A industries Vs. Abdus Sattar
(1979) 31 DLR 58.
Employer and employee.
Law governing service conditions in statutory corporation.
We are concerned in these two appeals with the statutory bodies of
public character, viz Bangladesh nail Industries Corporation and Janata Bank
and in law governing the employees of such bodies may be briefly stated as
follows:
(a) If an employee is dismissed or his service is terminated in
contravention of mandatory statutory provision, the employee has a right of
action either in a Superior Court in its writ jurisdiction or in a Civil Court.
(b) If the service of its employee’ is terminated in violation of the
principle of natural justice the employee has a similar right of action as in
(a).
Employee of a statutory corporation is not a government servant or
public servant—When an employee of a statutory corporation is entitled for
declaration of nullity—Precedent hearing or compliance with principles of
natural justice in case of dismissal of an employee of statutory corporation.
BSI Corpn. Vs. Mahbub Hossain (1977) 29
DLR (SC) 41.
—Employees of statutory corporations entitled to challenge wrongful
dismissal or termination under writ jurisdiction.
SM Masood Al-Mamun Vs. Bangladesh (1977)
29 DLR 393.
—Act XXXI1 of 1975 passed in order to face challenge on issues of
service re-organization, but in the absence of necessary notifications the
Government is without any shelter. Ibid.
—An employee of a statutory corporation is entitled to a show cause
notice before he is dismissed. Ibid.
—Employee of a statutory body (here it is a nationalized Bank) may be
dismissed without show cause notice in accordance with the terms of his
employment.
Md. Shamsuddin Vs. Janata Bank (1977)
29 DLR 62.
—Employer and employee—Relation between them in matters of service
condition to be governed by natural justice.
In the absence of any statutory provision regulating the service
condition the law of master and servant will apply. In the case of the
employees who are not governed by the statutory law the minimum requirement is
that the principles of natural justice should be followed. It is not the case
that a servant can always cling to his office because the employer has a
choice.
Kushtia Sugar Mills Vs. Abdul Wadud (1975 ) 27 DLR 76.
Enemy Property
Appellant after purchase is in possession of the property—before ii
could be treated as enemy property the authority concerned must prove that the
appellant or his vendors migrated to India before the Enemy Property Law came
into operation in 1965.
Abul Khair Miah being dead his heirs: Abul Kashem and others Vs. Bangladesh &
others (1980) 32 DLR (AD) 29.
—Custodian of the Enemy Property treating a property as being a vested
property without lawful basis for treating it as such and leasing out the same
to another is unauthorized and illegal.
Hiralal Agarwala Vs. Deputy Commissioner,
Bogra (1979) 31 DLR 359.
—Notification of 3rd December, 1965.
A property being an enemy property cannot be dealt with by execution of
a will—The property being but an enemy property the title to the property is
not extinguished but only eclipsed—So a suit for Icuers of administration in
respect of that property shall not be dismissed but stayed until the time it
remains a vested property.
Goutam Ranjan Sen and ors. Vs. Bangladesh and ors.
(1981) 33 DLR (AD) 175.
—Treating a property as an enemy property on the basis of an enemy
property case started in 1978 is not valid in law.
Niuya Gopal Roy Barman Vs.
Pran Gopal Nandi (1980) 32 DLR 11.
‘Entertain’ a suit is not the same thing as “execute a decree”.
The Court below observed ‘the present execution cannot be entertained”.
This view is wrong.
In respect of suit the prohibition is against entertaining the same. So
far as execution of a decree is concerned, the mandate is that no Civil Court
shall “execute any decree”. The word “entertain” cannot apply to the expression
“execute any decree.”
Sankar Bank Ltd. Vs. Sultan Bhuiya (1968) 20 DLR 63.
‘Entertain’
The word ‘entertain’ means to receive and to take into consideration
and, therefore, it signifies initially the duty of the Court when proceeding is
sought to be started before it.
Amjad Ali Vs. Asadulla (1952) 4 DLR 165.
“Entertained the suit”.
Means that the suit shall not be considered by the Court and not that
the filing of the suit is barred.
Dwarika Nath Das Vs. Md. Abdulla (1960)12 DLR 423.
“Equal protection of law”.
Equal protection of law does not require that absolutely the same rule
shall apply to all citizens irrespective of different circumstances. It merely
enacts that equal protection and security of the laws should be given to all
under like circumstances and conditions in the enjoyment of their civil rights.
Yick Wo Vs. hopkins (1886) 118 U/s. 357 rel. Shaikh Shamsul Huq Vs.
Prov. of East Pakistan (1958) 10 DLR 417.
Equitable charge or assignment.
Transactions such as cases of hypothecation or mortgage of movables not
in existence at the time of assignments by way of charge on future goods are
not governed by Transfer of Property Act and since equity regards that as done
which ought to be done, such mortgages or charges arc valid as equitable
assignments fastening upon the property as soon as it comes into existence.
Kazi Abdul Ali Vs. Nurut Amin (1955) 7 DLR 406.
Equity—Latches.
Equity cannot assist plaintiff where there is undue laches on his part.
The defendant had executed a bainapatra in favour of the plaintiff to
sell the suit properties to him on a certain date. It was specifically
stipulated in the said contract that the plaintiff would take all necessary
steps for obtaining permission for the sale of the properties. But the
plaintiff did not take any step for obtaining permission before that date. When
after that date he obtained permission and filed a suit for specific
performance of contract it was held; equity should not assist where there had
been undue latches on the part of die plaintiff.
Purnendu Kumar Das Vs. Hiran Kumar Das (1969) 21 DLR 918.
“Error apparent on the face of the record”
It is not one if it is not self-evident and has to be established by
long argument.
Mufjalur Rahman Vs Fajal Karim (1976) 28 DLR 303.
‘Erroneous decisions’—and ‘decision obtained with an error
apparent on the face of the record’—Review permissible in the latter case. Ibid.
Evidence—admissibility
Evidence of PW whose conduct was hypocritical vis-à-vis the plaintiff
can also be accepted.
Statement of witness, if hit by the rule of hearsay, is not admissible
in evidence.
Md. Nurullah Choudhury Vs. Golam S Kazi (1974) 26 DLR 70.
—Misreading or misrepresentation of evidence whereby merits of a
decision is affected vitiates the judgment.
Khondkar Mohiuddin Vs. Syed Moin Ahmed (1976) 28 DLR (SC) 85.
—Fraud, undue influence need not always be proved by oral
evidence—Circumstances may be relied on for the purpose.
Although the onus is strictly on the defendants to prove fraud and undue
influence and coercion in the face of the admitted signature of Asghar on the
document, we cannot in the mere absence of oral evidence on the subject hold
that the case of fraud, coercion and undue influence has not been made Out in
the circumstances as disclosed and particularly, when the excitant is dead, who
being man of failing health with financial worries reduced himself to a puppet.
So far as the legality of the mutation effected. it is sufficient to
state that this is merely an executive order which cannot confer title.
SM Lulfullah vs. Bibi Badrunnessa (1968)20
DLR 1019.
—Direct evidence having been disbelieved on good reasons, corroborative
evidence in connection there is of no
help to the prosecution’s case.
Rahman Baksh Vs. The State (1970) 22 DLR 482.
“Evidence Act”.
The Evidence Act’ does not apply in terms to these proceeding under the
Workmen’s Compensation Act which arc of a summary nature.
Messrs. Ahmad Brothers Vs. Mahmoodul Hassan
Khan (1965) 17 DLR (WP) 49.
Evacuee Laws.
Evacuee Laws—Evacuee laws enacted by Pakisian;
validity extends to the former State of Khairpur.
Fatoomal Vs. Reh. Commr (1969)21 DLR (SC) 291
Exchange of currency—Relevant date for conversion of foreign currency.
Two irrevocable letters of credit were opened by the defendant Bank, at
the request of the plaintiff, a partnership firm. The payment for the goods was
to be made at Calcutta on presentation of shipping documents including invoices
in duplicate and bills of lading.
The letters of credit were to be available for negotiation to the extent
of the amount mentioned by means of bills ‘at sight’ drawn on the plaintiff
without recourse, accompanied by duplicate signed invoices and complete sets of
“clean” bills of lading. One set of bills was presented for payment to the
plaintiff on the 15th September, 1949 and the other set of bill was presented
on the 16th September, 1949. The plaintiff refused payment thereof n those
date, on the ground that the bills were not clean bills of lading. On the 17th
September, 1949. India devalued its currency and the ratio of a hundred
Pakistani Rupees became Rs. 143-8-0 of the Indian currency. The State Bank of
Pakistan declared public holidays under the Negotiable Instrument Act,
following this devaluation and the actual payment was made by plaintiff to the
defendant-Bank on the 24th and the 27th of September, 1949, respectively.
The plaintiff did so under protest at the pre-devaluation rate i. e. at
par. The suit was instituted on 18-9-55 by the plaintiff contending that the
liability to pay in this case was not incurred till the State Bank of Pakistan
gave permission to remit the foreign currency to India, as such, the liability
must be assessed at the post-valuation rate.
Question arose as to the determination of the relevant date for
converting the Indian currency mentionable in the two bills of exchange into
Pakistan currency, for the purpose of meeting those bills.
Held: The relevant date for conversion of the
foreign currency into Pakistani currency in such case would be the date on
which the bill of exchange matured for payment and the liability for payment
incurred, that is, the date of conversion of the currency should be the date on
which the payment fell due.
SM Hanif (Dacca) Ltd. Vs. Central Bank of India (1962) 14 DLR (SC) 308.
Exclusive possession
Exclusive possession may also be used with no higher meaning than ‘sole
possession’. 54 CWN (2 DR) 191 (1931. col).
—The proposition that the test of exclusive possession is by no means
decisive cannot be said to be of general application.
Dhamai Tea Co. Ltd. Vs. Arjoon Kumari. (1979) 31 DLR 433.
—Exclusive possession may not be a decisive test in favor of a tenancy,
but it still remains a consideration of the first importance. Ibid.
Executing Court’s jurisdiction
Decree—Execution of decree—Decree-holder not at a liberty at his own
will to strike out execution proceedings.
Md. Joynal Abedin Vs. Nagendra Chandra Majumdar (1971) 23 DLR 124.
“Ex parte” and “legal proceedings”
The expression “ex parte” in Article 3 of P0 12 of 1972 governs diverse
proceeding—Civil, Criminal, revenue and others. Legal proceedings include
suits, cases, prosecution, appeal, revision and review.
The word “ex parte” admits of no other interpretation than to mean an
order passed in the absence of any of the contending parties.
Maksud Ahmed Vs. Sunil Kumar (1979) 31 DLR 275.
Ex parte adverse finding—payment of compensatory cost.
The adverse findings against the appellant in the judgment cannot be sustained
because those were made in the absence of the appellant. In the absence of
those adverse findings there could not be any occasion, far less, raising the
question of payment of compensatory costs to the respondent.
Habibullah Khan Vs. Shah Azharuddin Ahmed (1983)35 DLR
(AD)72.
Ex pane decree—Requirements of law necessary to pass an ex parte decree— Court’s duty when called upon to pass a ex-parte decree.
The plaint is no evidence for the proof of the case of the plaintiff.
The absence of the defendant who asked for adjournment but refused on reasons
assigned therefore cannot give occasion for the plaintiff to obtain ex-parte
decree without producing the relevant documents on the basis of which relief is
sought for. The Court is bound to apply its mind with reference to the
pleadings and satisfy itself as to what should be the proper proof for passing
a decree on the basis of the averments made in the plaint.
Bangladesh Vs. Abdul Wadud (1973) 25 DLR (SC) 90.
—Non-filing of written statement after several documents obtained for
the purpose does not operate as a valid ground for an ex pane decree without
complying with the necessary provision of law for such a decree.
It appears to us that Courts below considered that non-filing of written
statement by the defendant after obtaining several adjournments absolved the
Courts from the responsibility to examine the legality of the claim of the
plaintiff. The claim of the plaintiff is based on works which requires
measurement and such measurement-books and accounts were not filed; the bill on
the basis of which the claim is based was not before the Court and on the top
of it the schedule of work, as per tender, was not also before the Court for
which the plaintiff was required to undertake the work and the rate of Taka
100.00 for the work of the thousand cft. was not stated in evidence. So we find
it difficult to hold that the ex pane decree can be sustained in law.
Bangladesh Vs. Abdul Wadud (1973) 25 DLR
(SC) 90.
—When a nullity—Decree fraudulently obtained is a nullity.
Decree-holder by suppressing summons obtained the ex pane decree
fraudulently and this finding of fact has been arrived at both by the Appellate
Court below and the High Court Division. Such a decree obtained fraudulently is
a nullity in the eye of law. It is by practicing deceit and fraud that the
decree was obtained and when such fraud and deceit is established, a decree has
no existence in the eye of law and it must be set aside.
Abul Khair Mia Vs. Abdul Latif (1980) 32 DLR (AD) 167.
Ex-post facto
Ex-post facto law—What is—There is no fundamental difference between
retrospective and ex-post facto law. The former expression is used in respect
of civil matters and the latter in respect of criminal matters which by their
nature arc more serious.
Nabi Ahmed Vs. Home Secretary, Govt. of West Pakistan, (1970) 22 DLR
(SC) 20.
Expungement of condemnatory remarks.
Condemnatory remarks about the role of an Advocate in the conduct of a
case before a Court in the judgment appertaining to proceedings in relation to
that case is permissible—Such condemnatory observation having a serious adverse
effect (in the present case the appellant had to tender resignation of the
office of Advocate-General) is to be avoided except when urgency of occasion
imperatively demands it.
Khalid M. Ishaque Vs. Chief Justice and Judges of West Pakistan High
Court (1966) 18 DLR (SC) 366.
Fair wages, living wages, and minimum wages.
A minimum wage is the irreducible amount considered necessary for the
sustenance of worker and his family and for the preservation of his efficiency
while the living wages is the ideal which enables the workman to provide for
himself and his family a measure of comfort also. Fair wage. is between these
limits and while for a minimum wages employers’ capacity to pay is not a
relevant consideration, it is so in the case of the fair wage.
Dalmia Cement Co. Vs. Dalmia Cement Factory Workers (1958) 10 DLR (SC)
157.
Family
“Family”, what the word means.
The explanation of family as given under explanation (b) of section 20
the Act cannot be applied, in the case of the family of waked, for disposal of
the portions of the property which devolve on all the legal heirs and
representatives of the wakeef. The position of a mutwalli is as good as other
legal heirs and representatives of the wakeef. In that view of the matter
mutwalli alone cannot reap the benefit of the property set apart as secular
property.
Shamsuzzoha Nurul Amin Chowdhury Vs. Province of East Pakistan (1970) 22
DLR 376.
Female witnesses—If their veracity can be questioned on the ground that
they are females.
Only because of the fact that all the witnesses are females their
statements should not be believed has got no substance. There are no reasons to
disbelieve their evidence. If in a house where husband and wife reside and if
the husband is killed in that case only witness would be the wife to see the
occurrence of killing of her husband.
There is no law in the country not to believe the evidence of female
witnesses and convicting a person relying on their evidence. In this Connection
we may refer to cases reported in AIR 1938 Mad. 740 and the case reported in
AIR 1963 Supreme Court, page 364 wherein it was held that only because the
witnesses are female, their evidence cannot be discarded.
Noor Islam & ors. Vs. State (1984)36 DLR 123.
Ferries and Sairat Mahals
Ferries and Sairat Mahals are vested in the Local Councils under BD
Order.
In the case of ferries and other sairat mahals wi. ch have been vested
in the Local Councils any pcrin who feels himself aggrieved by anything done by
a Local Council in managing any sairat mahal shall seek remedy before the
Controlling Authority and not before a Revenue Officer. A Local Council is
not a Revenue Officer.
Bangshi Choudhury Vs. Reazuddin (1969) 21 DLR (BR) 31.
Final—’ Decision shall be final’—Doe s not affect High
Court’s revisional power. Anil Das Vs. Mostaque Ahmed (1966) 18 DLR 86.
—Final Explained
Kaikaus, J—It was contended that as the order dismissing the application
for confirmation of sale for want of income-tax clearance certificate implied a
refusal to confirm this refusal was final and a new application was
incompetent.
Held: The word “final” in section 43 of Pak
(Administration of Evacuee Property) Act would only mean that a point which has
been decided in a proceeding cannot be reagitated. If the application was
dismissed on the merits, the merits could not be agitated again, but if the
application was dismissed because of want of an income-tax clearance
certificate the only point that was decided was that a valid clearance
certificate did not exist. That point cannot be agitated again except by way of
appeal, review or revision, but the filing of a fresh application which is
supported by a clearance certificate is not incompetent.
Ata Ullah Malik Vs. Custodian of Evacuee Property (1964) 16 DLR (SC)
298.
—The word ‘final’ (occurring in sec. 29 (6) of the EB Premises Rent
Control Act) means that the order of the Rent Controller, subject to the result
of an appeal to the District Judge, is Final. it does not, however, take away
the jurisdiction of the High Court to interfere with the District Judge’s order
under section 115 CP Code.
Azizul Haq Vs. Hanif (1955) 7 DLR 287.
Fiscal Law, liability under
Principle applicable to it—The principle of all
fiscal legislation is that if a person sought to be taxed comes within the
letter of the law, he must be taxed. On the other hand, if the Crown, seeking
to recover the tax, cannot bring the subject within the letter of the law, the
subject is free from liability, however apparently the spirit of the law might
otherwise appear to be.
Ebrahim Paper Mart Vs Assistant Collector of Customs (1956) 8 DLR (WP)
71.
“Fishery”
Right of fishery, what it is and how it accrues—Presumption
as to the such right—Where a land is settled, then the presumption is that the
land with fishery right belongs to the lessee—Government’s claim of the right
of fishery in the water over the land of the lessee—invalid.
Province of East Pak. Vs. Tasiruddin Ahmed (1968) 2ODLR 435.
—Fishery right may be separately owned from the ownership of subjacent
land—When land settled with no reservation as to user of it, presumption is
land with fishery right transferred. Ibid.
—Cannot be acquired.
Rights of fishery in a navigable river are not a profit arising out of
land and cannot be acquired under the East Bengal State Acquisition and Tenancy
Act. Right of fishery in a navigable river—not an encumbrance. A several
fishery is an incorporeal right and cannot be acquired under the EB Stale
Acquisition and Tenancy Act.
Inland fishery falls within the definition of “estate” and “land” and,
as such, can be acquired.
Md. Tazammal Hossain Vs. Prov. of East Pak. (1959) 11 DLR 145.
—Lease of the land under water.
If a landlord grants a lease of a land to somebody, he cannot claim the
right of granting any fishery right in any portion of” the land, which may be
under water, in the absence of an express reservation to the effect; and the
landlord if he chooses to do so, may grant a lease of the fishery right in
respect of land which may be under water to one person and may give a lease of
the land itself to another.
Nawab Ali Munshi Vs. Sadagar Bapari (1957) 9 DLR 540.
“Fishing right”
—Fishing right, delivery of possession— delivery of possession in case
of a fishery right, when it is no more than symbolic delivery, cannot Oust the
person in possession of fishery even though a restraining order was passed upon
the person in possession.
Ambar Ali Talukdar Vs. Ajman Ali (1967) 19 DLR 221.
“Fixed rent”
The term “fixed rent” does not always connote a permanently fixed rent
for all time to come. Its proper construction depends upon the context of the
document in which it occurs.
KB Kishor Acharyya Chowdhury Vs. Prov. of East Bengal (1954) 6 DLR 1(21
rt. h. col.).
“FOB contracts—are contracts where the duty of the
seller is to deliver the goods on board ship at his own expense, upon which
prima fade the property and risk passes to the buyer, who is liable for
subsequent charge, and payment for the goods become due”. (Legal &
Commercial Dictionary, by S. D. Mitra)
“FOB (free on board) contracts arc contracts where the duty of the
seller is to deliver the goods on board ship at his own expense, upon which
prima fade the property and risk passes to the buyer, who is liable for
subsequent due”. (Haisbury’s Laws of England, 3rd Ed. Vol-34 p. 10).
“FOB” or “free on board” means on board a ship to be named by the buyer,
and the seller’s contractual duly is there and then to pass the property in the
goods sold to the buyer. Whether or not the seller in fact passes the property
to the buyer on shipment, the risk passes.
The presumption would, therefore, appear on principle to be that in the
case of a f. o. b. contract, the seller intends to fulfill his contract and
that the property is intended to pass, and does pass, on shipment’ Carger’s
Carriage of Goods by Sea, 10th Ed p. 728 (Also see British Shipping Laws,
Vol-5, para 395).
“It is impossible to assume that commercial practice would condone the
right of a seller f. o. b. to betray the original buyer by allowing him to
withdraw the goods after delivery to the carrier. It is suggested, therefore,
that whether the correct inference in f. o. b. sales is that property passes
forthwith subject only to an unpaid seller’s lien, or conditionally upon
payment, a retention of the bills of lading by the seller, even if they arc
issued to his own order, should not be construed in a manner which is
inconsistent with commercial practice. In other words, that any such retention
should be regarded in conjunction with the object of securing the purchase
price of the goods only.”
Bismillah Oil Mills. Vs. Messrs Arag Lid. (1982)34 DLR 134.
—
(1)The normal incidence of a f. o. b. contract is that property in the
goods passes to the buyer on shipment;
(2)The parties, however, may intend that property shall pass at a
subsequent time, as for example, on payment of price and charges and on such
event property shall pass at such subsequent time;
(3)Intention is a question of fact and has to be gathered from facts and
circumstances of each case.
(4)The mere fact that a f. o. b. contract provides for handing over of
bills of lading against payment does not justify a presumption that property is
to pass on payment;
(5)A retention of the bills of lading by the seller should not be construed
in a manner which is inconsistent with commercial practice. Any such retention
should be regarded in conjunction with the object of securing the purchase
price of the goods only, that is to say, property should be construed to pass
shipment subject to unpaid seller’s lien.
Even if the seller has retained the shipping documents for securing the
price of goods by providing that the documents shall be delivered on payment,
there is a presumption in a f. o. b. contract that property passes on shipment
unless a contrary intention has been expressed. Ibid.
Foreign Judgement
Exception cannot be taken to foreign judgment arrived at on correct view
of principles of international law.
Hasham Issaq Vs. Karachi Gas Company Ltd. (1969) 21 DLR (WP) 129.
Forfeiture
Forfeiture, relief against—Compromise between parties embodied in a
decree—Stipulation to discharge the mortgage or to obtain a deed of release by
a certain date—Time, if essence of contract and whether relief can be granted
against forfeiture. 35 CWN (DR-I) 103.
Forgery
Forgery or fraud—Main ingredient is dishonest or fraudulent intention—Mere interpolation
even unauthorized no proof of forgery or fraud— Without proof of bad intention
there can be no fraud or forgery.
Mir Ghaus Baksh Bizanjo Vs. Chief Election Commission of Pakistan (1970)
22 DLR (WP) 178.
Fraud—A party to a fraud cannot take advantage
of his own fraud.
The contention was that a particular part of a transaction was described
as a loan to evade payment of income-lax but it was not actually a loan but an
advance payment of rent.
Held: If the parties deliberately chose LO give the transaction a
particular form they must take the consequence, a party to a fraud is not
allowed to plead his own fraud.
Abdur Razzak IHowlader Vs. SK Muhammad Shafi(1962) 14 DLR (SC) 119.
—“Fraud”— when can be presumed in a sale set aside
case.
The landlord obtained an ex-parte
rent decree against the plaintiff of the present suit, whereupon the plaintiff
brought the present suit for setting aside the said rent decree on the ground
of fraud.
The following circumstances were found to exist in the present case,
namely, that the service of summons was not effected at the address where the
plaintiff had been residing, that the landlords were interested in getting and
in fact got a decree in excess of the kabuliyat rate coupled with the fact the
landlords had not taken the stand that there was a mistake as regards service
of summons for which they could not be held responsible.
Santosh Kumar Mitra Vs. Hrishikesh Mondal (1961) 13 DLR 278.
—Co-sharer causing the property to sold.
Proof of fraud, as against a co-sharer who has caused a property to be
sold—circumstances indicating fraud enough.
Ratanlal Chakraburtty Vs. Shomnath Chakrabartty (1957) 9 DLR 112.
—An ex-parte decree can be set
aside by a new action when the Court passing it had been misled by fraud. To
sustain an action for setting aside ‘a decree the fraud alleged and proved must
be actual positive fraud, a meditated and intentional contrivance to keep the
parties and the Court in ignorance of the real facts of the case and obtaining
that decree by that contrivance.
Azizur Rahman Vs. Sudhangshu Kumer Mitra (1952) 4 DLR 636.
—Fraud on Court as well as on parties
As to cases where fraud is committed upon the Court as well as the
parties, a Court has inherent jurisdiction to interfere in exercise of its
power vested in s. 151 CP Code.
Mofazzal Molla Vs. Parul Bala Debi (1972)24 DLR 116.
—Matters of inference—Proof of fraud is matters of inference from the
facts and circumstances of the case and the evidence as received before the
Court. Each circumstance by itself may not mean much, but taking all of them
together they may reveal a fraudulent or dishonest plan, on the question at
what Lime the persons who have been guilty of that fraud commenced it, the
Court is to draw a reasonable inference from their conduct.
Karnaphuli Paper Mills Ltd. Vs. Amanullah, Proprietor (1971) 23 DLR 150.
—Fraud on the minority by the majority
When an act did amounts to a fraud on the minority in a company an
individual member of the company may sue the majority.
Shamsul Huda Vs. Jalaluddin Ahmed (1979) 31 DLR 5.
—Remedy.
In case of fraud on a party the only remedy is in a suit. Mofazzal Molla
Vs. Parul Bala (1972) 24 DLR 116.
—Must specifically be alleged and proved—General averment of fraud will
not do.
Ibrahirn Vs. Surendra Kumar Dhar (1957) 9 DLR 16.
—To substantiate fraud, mere allegation of non- vice not
enough—Particulars as to person who admitted fraud with other materials must be
given as also evidence in support thereof.
Sajeda Khatoon Vs. Mostafa Khatoon (1976) 28 DLR 222.
—Fraud, undue influence—need not always be
proved by oral evidence—Circumstances may be relied on for the purpose.
Although the onus is strictly on the defendants to prove fraud and undue
influence and coercion in the face of the admitted signature of Asghar on the
document, we cannot in the mere absence of oral evidence on the subject hold
that the case of fraud, coercion and undue influence has not been made out in
the circumstances as disclosed and particularly, when the executants is dead,
who being man of failing health with financial worries reduced himself to a
puppet.
SM Lutfullah Vs. Bibi Badrunnessa, (1968) 20 DLR 1019.
—A fraud: When not a fraud—False representation made to a person who
knows it to be false is not such a fraud as to take away the privilege of
infancy.
Matira Bewa Vs. Sudhir Chandra Saha (1983) 35 DLR 56.
—Vitiates all proceedings.
Fraud vitiates all proceedings—Contravention of the provision of law is
no ground for allowing an order obtained by fraud to stand.
Md. Idris Khan Vs. Haji Erfanuddin (1957) 9 DLR 601
—Fraudulent contrivance enough to make an auction-purchase invalid.
If the auction sale is brought about by fraudulent contrivance on e part
of the decree-holder, then it cannot be said that the auction-purchaser, even
though he is not involved in the fraud itself, should be allowed to be
protected.
Nijamul Huq Faraji Vs. Panchanan Podder (1969)21 DLR 78.
—Fraudulent sales—nothing passes even to a bonafide purchaser for value
without notice.
Md. Mazaharul Huq Choudhury Vs. Nagendra Lal Dey.
(1957) 9 DLR 456.
—Judgment or order obtained by fraud—Duty of Court to re-call suo molts
in appropriate cases— Single Judge may re-call order of Division Bench obtained
by fraud. (1955) PLR (Lah) 111.
—Plea of—Parties pleading fraud must set forth full particulars of fraud
and the case can only be decided on the particulars laid. General allegations
are insufficient even to amount to an averment of fraud of which any Court
ought to take notice, however strong the language in which they arc couched,
may be. Ananta Kumar Bepari Vs. Jamini Mohan Das. (1952) 4 DLR 487.
—D by a fraudulent misrepresentation induced P to execute some documents
affecting P’s title to the suit property. P sued D for cancellation of those
documents. Defense was that P came to know about the real nature of the
transaction much earlier and the Suit was now barred by limitation.
Held: The burden to show that P had clear and definite knowledge of
those facts which constituted fraud, at a time which is too remote to allow P
to bring the suit, lies heavily on D.
Sm. Dhinamoni Bewa Vs. Sm. Saraswaii Namdasi (1953) 5 DLR 334.
—Where default in payment of revenue in respect of an estate is made by
both the plaintiff and the defendant, and the defendant (a co-sharer) purchased
the property in a sale held for such arrears cannot be compelled to reconvey
the plaintiff’s share of the property to the plaintiff even though the
defendant may have been guilty of fraud. Section 90 of the Trusts Act, 1882 has
no application to such a case. 53 CWN (DR 1) 3.
‘From date’
The Court directed the deposit of money within 15 days ‘from date’.
Held: In
computing the period of 15 days, the day on which the order was passed should
be excluded.
Sri Sri Radha Madhav Bigraha Vs. Dhira Urao. (1953)5 DLR 20.
‘Functus officio’ The general rule is that once an order is
passed and entered or otherwise perfected in accordance with the practice of
the Court, the Court which passed the order is functus officio and it cannot
set aside or alter the order, however, wrong it may appear to be. The order can
be set aside or altered only on appeal.
Pujaratana Unnause Vs. Waharekar Somittra Unnause (1952) 4 DLR (PC) 1.
Fundamental Rights.
Question whether the enactment is violative of Fundamental Rights
remains suspended till the Emergency is lifted.
Hamidul Haq Chowdhury Vs. Bangladesh. (1981)33 DLR 381.
—With reference to a number of Fundamental Rights enumerated in Part II
of the Constitution of 1956, they do not derive their entire validity from the
fact of having been formulated in words, and enacted in the Constitution of
1956.
A number of these rights are essential human rights which inherently
belong to every citizen of a country governed in a civilized mode.
The concluding words of sub-section (7) of section 2 of the Order of the
10th October, have not the effect of bringing to an abrupt end the proceedings
in the petitions before the High Courts commenced by the convicted persons.
State Vs. Dosso (1959) 11 DLR (SC)1 (43).
—Writ petition based on—Withdrawn and dismissed on abrogation of the
Constitution of 1956.
Sargodha Bhera Bus Service Vs. Prov. of West Pak. (1959) 11 DLR (SC)
285.
Fundamental Rules—Government has unfettered discretion to
retire ministerial servants at 55 years of age. Rule 56(b)(i).
Pakistan Vs. Liaquat Ali Khan (1959) 11 DLR (SC) 73.
“Next Below Rule”—An officer out of his regular line should not suffer by forfeiting
acting promotion which he would otherwise have received had he remained in his
regular line. (1957) 9 PLR (Dac) 1147.
Officiating post—Pay—When an employee is promoted to officiate in a higher post
involving the assumption of duties and responsibilities of greater importance
he is entitled to the minimum pay of the grade to which he was promoted to
officiate Rr. 30 and 35.
Post Master-General, Eastern Circle (EP) Vs. Muhammad Hashim (1971) 23
DLR (SC) 49.
‘Garment’ and ‘hose’,
The words ‘garment’ and ‘hose’ used in the notification [No. SRC 165 (R)
67] in their popular as well as their trade or business sense connote to be
articles of dress or covering for human use.
Karnaphuli Rayon Vs. Bangladesh (1976) 28 DLR (SC) 116.
—Garment and hoses herein mean wearing apparel for human use.
‘Garment’ in its dictionary sense may mean an article of dress, a
clothing of any object including an inanimate object like rayon yarn cake. But
if the notification is read as a whole along with the Schedule it leaves no
doubt that garment definitely refers to hosiery goods woven on the knitting
machines in the form of some human wearing apparel. Ibid.
General power of attorney
A general agent may be one that has authority to act in all matters of a
particular nature. The several acts which he may be expected to do for
achieving the object may constitute one transaction, but the power that is
conferred on him may be general in so far as that contemplated transaction is
concerned. Such a power-of-attorney is special for the Stamp Act and general
for making the contemplated transaction. PLR (1960)1 WP 504.
‘Generalia special non-derogant’
In case of conflict of a general provision with that of a special
provision in a constitution, the special provision should prevail. Reference by
the President under Art. 162 of the Constitution (1957)9 DLR (SC) I 78;
Jibendra Kr. Acharyya Chowdhury Vs. Prov. of East Pakistan. (1956) 8 DLR
457.
Government—What this means—It does not mean an abstract
entity—but means a body of persons vested with executive authority of State.
Govt. of Bangladesh Vs. Md. Habibur Rahman (1979) 31 DLR (AD) 151
—Government not to avoid implementing decrees. Department’s 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. Fazal-e-Huq Musarrat (1960) 12 DLR (SC) 88.
—Government functionary.
Government functionary in cases where land held jointly by co-sharers
cannot gel possession without partition suit—No authority can take possession
of a property belonging to several co-sharers on the ground that the authority
acquired complete right over the land belonging to some co-sharers; the course
open to him is to file a suit for partition.
Anil Kumar Dutta Chowdhury Vs. Province of Pakistan, (1971) 23 DLR 108
—‘Government Servant’—What the expression signifies.
Government Servant means and includes every person who for the time
being is in the service of the Government of Bangladesh or any corporation
constituted under any law for the time being in force and every person who on
the basis of having at any time been in the service of Pakistan purports to
claim any right to employment in the service of the Government.
Bangladesh represented by the Secretary, Ministry of Power & Water Resources Vs.
Md. Misfor Au (1982) 34 DLR (AD) 304.
—His status: Legal relationship between the Government and its servant
is not an ordinary contract between master and servant—Government’s servant’s
position is one of status regulated by law.
Dr. Nurul Islam Vs. Bangladesh represented by the Secretary (1981) 33
DLR (AD) 201 (203).
—Temporary employee with a continuous service for several years stands
on a different footing than other temporary employees.
Md. Ismail Hossain Vs. Govt. of Bangladesh (1975) 27 DLR 353.
—Punishment for misconduct— Authority awarding
punishment not bound by what the enquiry officer says—where a favorable order
has been passed in favor of a delinquent officer, reversal of such order must
be based on reasons which should be recorded—An order awarding punishment is
always a judicial order.
Mir Alauddin Ahmed Vs. Prov. of E Pak. (1974)26 DLR 27.
—Placement in certain category—No reduction in rank.
Since the petitioner by a placement (in certain category) have not
suffered any reduction in pay or rank, it cannot be said that their reversion
has in the present circumstances been done by way of punishment but it has been
done to remove a glaring anomaly which escaped notice earlier.
SM Masood Al-Mamun Vs. Bangladesh (1977) 29 DLR 393.
—Employees of Corporations who are not Government servants—Provisions of
Article 135 of the Constitution of Bangladesh not applicable to them. They can
invoke writ jurisdiction in case of violation of any statutory right—In case
where the rule of master and servant prevails writ jurisdiction cannot be
invoked. Ibid.
—Dismissal of, on ground of corrupt practice.
Sub-divisional Collector of Food after holding an enquiry gave the
petitioner benefit of doubt on the charge of corrupt practice and recorded
reasons in support of his conclusion. The District Controller without giving
any reason as to why he did not accept the finding of Sub-divisional Controller
dismissed the petitioner from service—
Held: The order
of dismissal is not legal.
Mir Alauddin Ahmed Vs. Province of EP (1975) 27 DLR 393.
—Promotion of—Promotion is not made on the basis of
seniority only; for other factors, such as efficiency, suitability, honesty,
etc. are also to be taken into consideration in the case of a promotion.
Ghazi Md. Ekhlas Mia Vs. Bangladesh (1976) 28 DLR 397
—Claim to arrears of salary—Not a contractual
debt—Claim rests on bounty of State— Action at law for enforcement does not
lie.
Govt of West Pakistan Vs. Fazal-e-Huq Musarrat (1960) 12 DLR (SC) 88.
—Expression “deemed to be a government servant” does not necessarily
mean a government servant. The expression that he is deemed to be a
“Government” servant in Annexure “B” has been used for a limited purpose, that
is, for the purpose of prosecution in a Criminal Court. He will be treated as a
public servant as defined in s. 21 of the Penal Code, and for the purpose of
regulating his conduct and taking disciplinary measure, when necessary, he will
be subject to the Government Servants (Efficiency and Discipline) Rules. These
provisions do not necessarily make him a Government Servant.
Keramat Ali Talukder Vs. Election Tribunal (1979) 31 DLR 1.
—Dismissal:
No Authority subordinate to one by whom a Government servant is
appointed shall be competent to impose a penalty of dismissal against a
Government servant.
Province of East Pakistan Vs. Abdul Latif Talukder
(1970) 22 DLR 589.
—Punishment awarded for corruption—Screening Board recommending
light punishment— Government awarding higher punishment.
The Appointing Authority awarding a higher punishment (dismissal of the
delinquent officer) than that recommended by the Screening Board (which held
the enquiry against the delinquent officer) commits no illegality, since it is
so authorized by P0 67 of 1972 and in giving higher punishment it is not
necessary that the officer concerned should be given notice regarding proposed
higher punishment.
Abdur Rahsid Vs. Bangladesh (1980) 32 DLR (AD) 201.
—Government’s right to retire
Central Government has all the right to retire an officer after 25 years
of service without giving any reasons.
Government has unfettered discretion to retire ministerial servants at
55 years of age.
Pakistan Vs. Liaquat Ali Khan
(1959) 11 DLR (SC) 73.
—Service liable to be terminated by one month’s notice—No drastic action
against him was taken after inquiry on charges of misconduct—but his service
terminated by one month’s notice— Termination not necessarily mala fid.
Abdul Karim Vs. Prov. of West Pakistan (1960) 12 DLR (SC) 295.
—His retirement—The date was 30.1.73 and thereafter he was on
leave for 6 months preparatory to his retirement. This 6 months’ leave is a
retirement benefit. An order by the Government suspending him from service
passed after 30-1-73 and during the period when he was enjoying 6 months
preparatory leave can be held as an order passed when the servant was not in
Government service—Therefore, such order passed treating him in service is
ineffective and unlawful.
Syed Abdul Ali Vs. Secretary, Establishment Division (1979) 31 DLR (AD)
256.
—Relation between a civil servant and the State.
The relationship between a civil servant and the State is essentially
contractual though his services would be terminable at the pleasure of the
State, but as long as that pleasure was not exercised, there was a binding
contract which could be enforced, if necessary, by action against the State.
Pakistan through General Manager, NWR Vs. AV Issacs (1970) 22 DLR (SC)
371.
—Government servants violate law.
Here is a case where litigation is being conducted on behalf of the
Government by Government officers in utter disregard of public policy and
public money.
KM Morshed Vs. Executive Engineer (1976)28 DLR 449
Grievance.
The word ‘grievance’ defined—Grievance connotes infliction of wrong or
hardship on a person, injury or oppression; a cause or source of injury, In
modern use something (real or supposed) which is considered a legitimate ground
of complaint.
Sh. Allah Diya Vs. Abdul Qadeer (1971) 23 DLR (Lahore) 15.