Words and Phrases
Labour Court
Court granting more reliefs than asked for— principle to follow.
The Manager Spencer & Co. (Pak.) Ltd. Vs. Spencer’s Employees Union,
(1973) 25 DLR 102.
‘Labour dispute’
A registered Trade Union functioning and discharging function of a
recognized Trade Union. Some clerks of a Company having been retrenched their
cause was taken up by a Trade Union and conciliation proceeding was initiated.
The question of retrenchment of these clerks then becomes a labor dispute.
Mohiuddin Vs. PRS Ltd. (1977) 29 DLR (SC) 117.
—A recognized Trade Union preferred over an unrecognized trade union. Ibid.
Land Acquisition Court—When making assessment
of compensation acts as an arbitrator— When such a court determines question
pertaining to title in a compensation proceeding, it functions as a court of
law attracting provisions of CP Code.
Bangladesh Vs. Abdul Mannan (1977) 29 DLR (SC) 17.
Land development
—Development of land by leasing Out the same for construction of
buildings on the side of a big road is connected with the development of
Bangladesh and as such acquisition of such land cannot be objected to.
Development of the land on the side of a big road under a project
appears to be connected with the development of Bangladesh and it was a part of
the scheme for which the lands were acquired.
Aftabuddin Mullah, Vs. Chairman, Khulna Development Authority (1982) 34
DLR 261.
—If land is acquired for one purpose and is directed to another public
purpose for which the land is being used is a different one, being outside the
purpose of requisition and acquisition, the requiring body was competent to do
it since the other purpose is also a public purpose. Ibid.
Land—dispossession from.
Person in possession of land can only be dispossessed by another having
better title.
When a defendant is in possession he could be evicted only by person
having a better title than he. In such suit, plaintiff can only succeed by
proving his better title over suit land.
Lal Meah Vs. Md. Ibrahim (1976) 28 DLR (SC) 61.
Landlord and tenant—denial of the landlord’s title—forfeiture.
In a suit for ejectment by landlords the denial of the title of the plaintiff
would in law result in the forfeiture of the right of the lease-hold interest
of the defendants.
Bayza Bibi Vs. Debendra Lal Roy (1950) 2 DLR 360.
‘Last installment’ and ‘last year’—The expression ‘last
installment’ in the 2nd proviso to sub-section (2) of section 2 of the Bengal
Land. Revenue Sales Act means installment preceding the sale and ‘last year’ in
the same proviso means the year previous to the year preceding the sale and,
therefore, when the sale took place on account of arrears of excess of March
kist of 1950, on 26.6.50, then under the proviso to sub-section (2) of section
2 there could not be any sale for arrears of cess due in March. 1950 and the
sale held for such an arrear by the Collector was without jurisdiction and the
sale is liable to be set aside and declared void.
Abdus Samad Chowdhury Vs. Shamsuddin Ahmed (1960) 12 DLR 385.
Latches
The doctrine of latches in Court of Equity is not an arbitrary or
technical doctrine. Where it would be practically unjust to give a remedy either
because the party has by his conduct done that which might fairly be regarded
as equivalent to a waiver of it, or where, by his conduct and neglect, he has,
though perhaps not waiving that remedy, yet put the other party in a situation
in which it would not be reasonable to place him if the remedy were afterwards
to be asserted—in either of these cases lapse of time and delay are most
material.
John Ojobo Agbeygbe Vs. Festus Makene Ikomi (1953) 5 DLR 219 (PC).
—But in every case if an argument against relief, which otherwise would
be just, is founded upon mere delay, that delay, of course not amounting to a
bar by any statute of limitation, the validity of that defense must be tried
upon principles substantially equitable. Ibid.
—Two circumstances always important in such cases are the length of the
delay and nature of the acts done during the interval which might affect either
party and cause a balance of justice or injustice in taking the one course or
the other so far as relates to the remedy. Ibid.
—Where a suit struck out and was relisted after a lapse of nine years
and having regard to the Length of the delay the inadequacy of the explanation
of the delay and consequences of setting aside a sale of land as against a bona
fide purchaser for value who had been i1i occupation of the land during the
whole period and had apparently altered the buildings thereon— such a suit
ought not to have been re-listed and having been relisted ought to have been
dismissed. Ibid.
Late delivery—Loss of market
Damages on account of late delivery of goods carried by the
ship—Principle for calculating loss for late delivery as in the case of transit
by land. Wherever the circumstances admit of calculations as to the time of
arrival and probable fluctuation of the market being made with the same degree
of reasonable certainty in the case of a sea, as of a land, transit there can
be and reason why damages for late delivery should not b calculated according
to the same principles in both cases.
In assessing damages only the circumstances resulting from the breach of
contract are to be taken into consideration.
Al-Sayer Navigation Co. Vs. Delta International Traders Ltd. (1982) 34
DLR (AD) 111.
Law
—Question of law, raised—Question of law if not pleaded in the written
statement will not debar the court to apply that law, if necessary.
Khan Azizul Hassan Khan Vs. Haji Mohammad Ismail, (1971) 23 DLR (Lahore)
15.
—Before striking down a law having far reaching consequences, Courts
should be extremely cautious and act on the principle that the affair should
prosper, rather than be brought to naught.
Province of East Pakistan Vs. Sirajul Huq Patwari (1967) 19 DLR (SC)
281.
—Altered during the pendency of the case—Law existing at the
commencement of the trial will govern the case, unless the new law is expressly
or impliedly given a retrospective effect.
Muhammad Alam Vs. State (1967) 19 DLR (SC) 242.
—Law, change of :—Change of law while
the case pending in the appellate Court—Appellate Court to give effect
to the change.
Sayeedur Rahman Vs. Chief Election Commissioner (1965) 17 DLR (SC) 23.
—Durability of, passed by a competent body is permanent.
Sargodha Bhera Bus Service Vs. Prov. of West Pakistan (1959) 11 DLR (SC)
285.
—Functions of law.
Official acts affecting rights of the citizens must be based on some
provisions of law—Any such acts done not within the ambit of a law
unauthorized— Dispossessing a Khadim from the privately owned dargah by the SDO
not permissible.
Muniruddin Vs. SDO Chandpur (1975) 27 DLR 382.
—Law in force and law in operation.
Where a law having both force and operation is robbed of its operation
by virtue of a judicial finding that its provisions are inconsistent with those
in a major law, such law is as much a law in force, as another law duly enacted
which awaits a further act of a legislature or competent authority for bringing
it into operation.
Prov. of East Pak. Vs. Md. Mehdi Ali (1959) 11 DLR (SC) 318.
Invalid—does not become valid by the mere fact
that it remained unchallenged for a long time.
Attorney-General of Australia Vs. The Queen (1958) 10 DLR 9 (PC).
Legislature’s power—to make law and also validate actions
retrospectively within certain limits. Shahabuddin Ahmed, J (concurred in by F
Munim, J., R Islam, J. and B Haider Chowdhury, J).
—There is no dispute that the legislature got power to make a law
retrospectively and also to validate actions retrospectively. Retrospective
validation may also be conferred upon an Act notwithstanding anything contained
in any judicial decision.
Mofizur Rahman Khan Vs. Bangladesh (1982) 34 DLR (AD) 322.
Municipal law and international law—Municipal
law prevails over international law and courts are bound to administer law as
it stands.
Jagadish Chandra Mazumdar Vs. Commr. of Agriculture Income Tax (1956)8
DLR 327.
—Law of necessity
That which is not otherwise lawful, necessity makes it lawful. Reference
by H.E. The Governor General (1955) 7 DLR (FC) 395 (424).
Presumption as to its validity
Fair and unobjectionable on its face, conferring absolute powers which
may be used arbitrarily cannot be questioned because it is likely to be
arbitrarily used—but can be questioned when in fact it is so used.
Jibendra Kishore Acharyya Vs. Prov. of East Pak (1957) 9 DLR (SC) 21.
‘Law’ and statutory public authority’.
The expression “law” as has been defined in Article 152 of the
Constitution of Bangladesh means any Act, Ordinance, Order, Rule, Regulation or
Bye- laws, Notification or other legal instrument or any custom or usage having
the force of law in Bangladesh. “Statutory public authority” also as has been
defined in Article 152 of the Constitution means any Authority, Corporation or
Body the activities or the principal activities of which are authorized by any
Act, Ordinance, Order or Instrument having the force of law in
Bangladesh. A.Z. Rafique Ahmed Vs. Bangladesh (1980)32 DLR (AD) 84.
Valid law can not be repealed by unconstitutional law.
Valid law can not be substituted or repealed by an invalid
unconstitutional law.
Ful Chand Vs. Md. Hammad (1982) 34 DLR (AD) 362.
Validation of invalid law
Legislature’s power—Law passed for validating an invalid law—tests—in
removing the defect validation of Law does not contravene the
Constitution—Conferment of retrospective effect must not encroach judicial
power of the court—Legislature can render Judgments, etc. ineffective by
removing their basis.
The tests of such validation, besides legislative competence, are that
the defect in the previous invalid law has been removed and the validation of
law does not contravene any provisions of the Constitution.
Mofizur Rahman Vs. Bangladesh (1982) 34 DLR (AD) 321.
—Validity of law does not depend on the malafide or bonafide of a law— Circumstances attending changes in different M.L. Regulations might
indicate malafide yet in view of the fact that M.L.R. by which amendments have
been made to implicate the President in an offence are immune from challenge in
any court.
Mostaque Ahmed Vs. Govt. of Bangladesh (1981) 33 DLR 348.
The validity of a validating law—is to be judged by
three tests, the first is to see whether Parliament is clothed with the
legislative power on the subject. The second is whether by validation
Parliament has removed the defect which the Court had found in the earlier law,
and thirdly, whether the validating law is consistent with the provision of the
Constitution. When all the three tests have been fulfilled, the validation law
may operate retrospectively, if Parliament so expresses in the validating
document.
Mofizur Rahman Vs. Bangladesh (1982) 34 DLR (AD) 321.
—With validating an invalid law legislature can also validate executive
action—Legislature not empowered to reverse court’s decision as it does not
possess judicial power-Court’s decision binding.
It is a settled principle of interpretation that the power of
legislature to validate an invalid legislation carries with it the ancillary
power of validation of executive orders or actions but like the validation of
law, the latter ancillary power is subject to the Constitution. Ibid.
—Law Officer and Govt. Servant.
Both a Law Officer and a Government Servant shall hold office during the
pleasure of the President, but in the case of a Govt. servant the President’s
pleasure is subject to other provisions of the condition as expressed in the
words “except as otherwise provided by this Constitution.”
A Law Officer shall hold office only during the President’s pleasure and
he may be removed from office at any time by the President without any reasons
being assigned for his removal as has been expressed provided in the
President’s Order No.6 of 1977. The clear distinction between service
conditions of a law officer and that of a Government Servant excludes a Law
Officer from falling into the definition of a person in the service of the Republic.
Kazi Abdul Wahab Vs. Bangladesh (1979) 31 DLR 332.
Lawyer
Gross professional misconduct—Inhuman act— Expulsion.
Interpolations in the figure of 200 raising it to 1200 and in the figure
50 raising it to 250, etc. in the letter of appointment whereby the appellant
inflated his remuneration established—Though the appellant was enrolled as an
Advocate of the District Court on 3.1.66 he represented himself as a lawyer
since middle of 1965.
Appellant is guilty of gross professional misconduct and his dealings
with the respondent inhuman.
Kazi Abdul Khaleque Vs. Kazi Faziur Rahman (1982) 34 DLR 279.
Lease.
A lease for 99 years is not a lease in perpetuity. MH Khandker,
Advocate Vs. Bangladesh (1978) 30 DLR (SC) 1.
—Grant of lease by SDO in his discretion in regard to the enemy property
under the Defense of Pakistan Rules—High Court when moved under Article 102 of
the Constitution refuses to interfere with that.
Habibullah Vs. Govt. of Bangladesh (1978) 30 DLR 47.
—Lease of premises for residential and nonresidential purposes fall
within the ambit of Premises Rent Control Ordinance of 1963. Lease of
nonagricultural lands is a subject-matter which has been dealt with in the EB
Non-Agricultural Tenancy Act.
MH Khandker, Advocate Vs. Bangladesh 30 DLR (SC) 1.
—No written document necessary for lease.
Under the Bengal Tenancy Act, no written document is necessary for the
creation of a lease in respect of agricultural lands and, therefore, a tenant
can prove his tenancy independently of a written lease, if any.
Khan Mohd. Biswas Vs. Chittaranjan Saha (1955) 7 DLR 60.
—Agreement—Lease
Agreement executed by the defendant alone can not be treated as a formal
agreement between the parties.
A unilateral document unable to decide question of title.
Dhamai Tea Co. Ltd. Vs. Arjoon Kumari (1979) 31 DLR 432.
Lease-deed—executed and registered not by the party
competent to do it but by a 3rd party on the basis of a letter—No title passes.
Ayaz Bahadur Vs. Abdus Sobhan (1978) 30 DLR 15.
—Exclusive possession (by the defendant) for 25 years suggests lease.
Uninterrupted possession of the suit land for 25 years suggests that the
defendant was given exclusive possession suggests a lease.
Dhamai Tea Co. Ltd. Vs. Arjoon Kumari (1979) 31 DLR 432.
—Renewal of lease.
Original lease of a plot of land belonging to the Govt. Khas Mohal
granted for 29 years contains clause for renewal after expiry of the
lease-period. Lessee fulfilled all conditions and duly applied for renewal
after expiry of the original period of lease— The authority is bound in terms
to grant fresh lease.
Free School Street Property Vs. Bangladesh (1978) 30 DLR 1.
Determination of the purpose of lease—Law application.
The test to determine whether a lease comes under the Bengal Tenancy Act
or under the Nonagricultural Tenancy Act is the purpose for which the tenancy
is created.
Sarat Chandra Biswas Vs. Mozam Sardar,
(2970)22 DLR 102.
“Lease and sub-lease”—difference between
Under the general law relating to transfer of property a sub-lease
connotes the transference of only a part of the original lessee’s interest,
whereas the transference of the whole of the interest in the lease by the
transferor amounts to an assignment of the lease-hold interest.
The assignee of a lease stands in the place of the original lessee and
becomes a tenant of the original landlord.
A sub-lessee, on the other hand, is liable only to the sub-lessor, he
cannot sue or be sued by the original landlord.
Province of East Pakistan Vs. Muhd. Hossain
(1964) 16 DLR (SC) 667.
—Lease and license.
Where a person is held to be a licensee and not a tenant in spite of his
exclusive possession of the property.
When a requisitioning authority allowed people into possession at a
weekly rent, when a landlord told a tenant on his retirement that he could live
in cottage rent free for the rest of his life, when a landlord, on the death of
the widow of a statutory tenant, allowed her daughter to remain in possession
paying rent for 6 months, when the owner of a shop allowed the manager to live
in a flat above the shop. In each of those cases the occupier was held to be a
licensee and not a tenant, notwithstanding exclusive possession.
Dhamai Tea Co. Ltd. Vs. Arjun Kumari (1979) 31 DLR 432.
—Lease and Licence distinguished.
If the document only permits another person to make use of the property
when the same remained under the legal possession of the owner, then the
interest created by the document is a license. If, on the other hand, the
agreement grants exclusive possession even for a limited period and for
specified purposes then the transaction would prima facie amount to a lease.
The entire set of circumstances relating to be taken into consideration before
it can be decided whether transaction stipulated is a lease or a license.
Goalundo Fishing Industries Vs. Pakistan, (1970) 22 DLR 349.
—Judicial views on lease and license.
A lease as will appear from section 105 of the Transfer of Property Act
is a transfer of an interest in immovable property. During the continuance of
the lease the right of enjoyment of the property belongs to the tenant and not
to the landlord. The right of ownership as well as the right of which it is
composed is rights in rem transferred to the lessee. On the other hand, a
“license” as will appear from its definition in section 52 of the Easements Act
is merely a competence to do something which except for this permission would
be unlawful. It does not confer any rights in physical property.
Dhamai Tea Co. Ltd. Vs. Arjun Kumari (1979)
31 DLR 432.
—Line of demarcation between.
The line of demarcation between a lease and a license will sometime be
very thin. A lease is a transfer of an interest in immovable property.
Ownership of physical property consists of a number of rights and the owner of
such property when he creates a lease, transfers to the lessee a part of the
rights of ownership i.e., the right of enjoyment of the property, for a period,
for consideration. During the continuance of the lease the right of enjoyment
of the property belongs to the tenant and not to the landlord.
The right of ownership as well as the rights of which it is composed are
rights in rem and not in personam and by the lease a right in rem is
transferred to the lessee.
Abdullah Bhai Vs. Ahmed Din (1964) 16 DLR (SC) 169.
—There is in the case the case of a license only a personal agreement
between the licensor and the licensee whereby the licensor agrees not to
interfere with the doing of particular acts on property which is in his
possession. No right in rem passess to the licensee.
The criterion for distinguishing between a lease and a license is
simple, i.e., whether any right in immovable property itself, a right in rem,
has passed to the person concerned. But the determination of this question may
be difficult in the circumstances of a particular case. Where there is a
document the evidence will have to be considered with due regard to the
provisions of sections 91 and 92 of Evidence Act, 1872.
Abdullah Bhai Vs. Ahmed Din (1964) 16 DLR ‘SC) 169.
—Difference between—Substances to be looked into, not the words used to
ascertain real intention.
Golam Mohammad Vs. Hajee Amir Ali (1962) 14 DLR 772.
—If an employee is allowed to stay on a piece of land he will (unless
others along with him are also put on the same land), be in possession of such land
to the exclusion of others.
New Dhamai Tea Estate Limited Vs. Arjun Kurmi (1983) 35 DLR (AD) 155.
—A Tea Company requires workers for the purpose of plantation. It is
natural that for ensuring the continuity of service by such workers they should
be provided with certain amenities in addition to their salary.
Amenities by way of providing housing accommodation not to be construed
as creating a lease. Ibid.
—Distinction between these two— Lease consists of a
transfer in immovable property for consideration and during its subsistence the
tenant (i.e. lessee) has exclusive right of possession of the property
leased—Lessee’s right in relation to the property leased is a right in
rem—License is merely a competence or permission to do something which except
for this permission will be unlawful—No right in rem passes to the licensee. Ibid.
Leave
Leave of absence from office cannot be claimed as a matter of right.
S.M. Faruque Vs. Prov. of East Bengal (1958) 10 DLR 562.
Legal adviser
Duty towards clients asking advice—Obligation to make full disclosure of
information in his possession relevant—Failure of obligation—Liability to
damages.
Assena Marikar Muhammad Fuard Vs. Alfred Richard Werasuriya (1956)8 DLR 48(PC).
—“Legal character”—Explained
In section 42 of the Specific Relief Act the expression “legal
character” or “status” denotes a character or status conferred by law on an
individual or a number of individuals, viewed as a unit of society and not
shared by the generality of the community but only by individuals, placed in
the same category of character. The character itself must be conferred by law
on person viewed from the standpoint of membership of the community. It is a
“status” or “character” conferred by law. It is not a creature of contract but
of law. For example, a minor cannot contract into majority nor can one, who has
attained majority, under law, contract him into minority.
Burmah Eastern Ltd. Vs. B. Eastern Employees Union (1966) 18 DLR 709.
—Legal necessity, proof of—in ease of alienation by widow—Lapse of time
is a factor for not insisting on strict proof of legal necessity—Recitals in
the deed afford good evidence.
Mahendra Kumar Vs. Akbar Molla (1977) 29 DLR 6.
—Legal payment—payment under protest.
A payment to be an effective payment must be an unconditional payment.
Payment under protest is not a legal payment so as to relieve the person,
making the payment, from the consequences of nonpayment. 55 CWN (DR 3)166.
Legal Practitioners
Enrollment of—Dismissal from Government service does not operate as an
absolute bar to enrollment—Order of enrollment once made can be set aside only
on a subsequent fault after fresh inquiry— Order by one judge cannot be revoked
by another judge or other judges.
Din Mohd. Vs. High Court West Pakistan (1957) 9 DLR (SC) 115.
—Duty towards Court in matter of adequate preparation of
case—Professional misconduct. 1955 PLR (Lah) 215.
—Legal Practitioner—right to appear.
Legal practitioner—Advocate not debarred from representing an opposite
party, if no confidential information passed to him from the other party.
If no retainer fee received by Advocate from 1st party and no
confidential information passed to him then the Advocate is not debarred to
accept the brief on behalf of the opposite party and appear in court on his
behalf.
Syed Azizuddin Vs. Dy. Collector & DSC (1969) 21 DLR (WP) 242.
‘Leges posteriores priores contrarias abrogant’.
When two provisions concerning the same subject-matter are inconsistent
or contradictory with each other, then according to the maxim leges po sicriorespriores contrarias
abrogant the latter will prevail and the doctrine of implied repeal should
be brought in and that only if that course is inevitable on the language of the
statute.
Jibendra Kishore Vs. Prov. of East Pakistan (1956)8 DLR 457(493).
Legislature’s power
Validity of legislation cannot be challenged upon general principles of
equity and justice unless it violates constitutional provisions.
Messrs. Haider Automobile Ltd. Vs. Pakistan, (1970) 22 DLR (SC) 65.
Lessee and lessor
Implies a relationship of tenant and landlord.
A lessee is, in its ordinary acceptation, no other than a tenant and the
lessor, the landlord, and when such terms have been given any statutory
definitions in any enactment they have not departed from such meanings.
M.H. Khandker, Advocate Vs. Bangladesh (1978) 30 DLR (SC) 1.
—Lessor, lessee and sub-lessee.
Possession of the sub-lessee, not adverse to the lessor, the landlord.
Kader has entered into possession of the suit property through the
instrumentality of the bharatia Subul. Possession of bharatia was not adverse
to the owner landlord Upendra.
Satyendra Chandra Banik Vs. Mawlada. Akhtar Bewa (1982) 34 DLR 300.
Letter of credit.
A foreign exporter or supplier of goods normally requires to be assured
of receiving payment of the goods. He may or may not know the person seeking to
purchase the goods. It is, therefore, the normal practice that in order to
strengthen the credit of the purchaser the banker usually intervenes and adds
to that credit his own and, assured by the credit of the banker, the foreign
exporter usually, in assurance of the credit, ships the goods and draws bills
of exchange which are negotiated at that place through that banker and thus
payment is made to the foreign exporter.
Letters of credit are normally described as documentary letters of
credit. In other words, it is a conditional letter of credit conditioned by the
attachment of the documents mentioned therein. A letter of credit of this type
is such a document or order by one banker in one place, authorizing some other
banker, acting as his agent or correspondent in another place, to honor the
drafts or cheques of a person named in the document, up to the amount stated in
the letter and charge the total amount of the drafts so honored or payments so
made to the grantor of the letter of credit.
For this facility provided for the advancement t. international trade
and commerce, bankers usually take certain precautions in order to secure
themselves against the normal risks. The precaution usually is to lake, by way
of collateral security, the goods being imported and the documents relating to
the goods, so that, in the event of the purchaser failing to honor the bills,
the banker can recover the amount by the sale of the goods.
S.M. Hanif Vs. Central Bank of India (1960) 12 DLR 10.
License
“To license”—meaning explained.
In its specific sense “to license” means to confer on a person the right
to do something which otherwise he would not have legal power to do. A license
is in the nature of a special privilege rather than a right common to all, and
is often required as a condition precedent to the right to carry on business or
to hold certain classes of property within the jurisdiction.
Small Town Committee Vs. Firm Md. Sadiq Barkat (1960) 12 DLR (SC) 296.
Licensee
Although a person who is let into exclusive possession is, prima facie,
to be considered to be a tenant nevertheless, he will not be held to be so if
the circumstances negative any intention to create a tenancy. Words alone may
not suffice. Parties cannot turn a tenancy into license merely by calling it
one. But if the circumstances and the conduct of the parties show that all that
was intended was that the occupier should be granted a personal privilege with
no interest in the land, he will be held only to be a licensee.
Dhamai Tea Co. Ltd. Vs. Arjun Kurmi (1979) 31 DLR 432.
—Licensee’s claim to stay on another’s land. Occupation of another’s
land without any legal basis and merely on the basis of preferring claim to
stay on does not create a right to stay on the land as a licensee.
Karwan Bazar hawkers Vs. DIT (1975) 27 DLR 378.
—License and Tenancy
“The difference between a tenancy and a license is, that in a tenancy an
interest passes in the land, whereas in a license it does not. In
distinguishing between them, a crucial test has sometimes been supposed to be
whether the occupier has exclusive possession or not. If he was let into
exclusive possession, he was said to be a tenant albeit only a tenant-at-will.
Whereas if he had not exclusive possession he was only a licensee this test
has, however, often given rise to misgivings because it may not correspond to
realities The test of exclusive possession is by no means decisive”.
Dhamai Tea Co Ltd. Vs. Arjun Kurmi (1979) 31 DLR 432.
—Licensor and licensee.
“Whether an agreement creates between the parties the relationship of
landlord and tenant or merely that of licensor and licensee the divisive
consideration is the intention of the parties.” Ibid.
Lien.
A lien is a right which only arises by operation of law and is a right
merely to retain possession of things already in possession.
Kazi Abdul Ali Vs. Nurul Amin (1955) 7 DLR 406.
—Lien or charge—not in favor of the purchaser but of the
vendor—No deed of transfer is effectuated.
In the case of a lien or charge not in favor of the purchaser but in
favor of the vendor the document does not partake the character of a sale.
Where a document provides for a lien on the property for the unpaid
consideration money it is a provision in the agreement against any such
contract to the contrary in the sale-deed to be executed hereafter and the
possession of the property was made subject to such lien. It does not and
cannot make the document a coveryance.
E.H. Chowdhury Vs. Member, Board of Revenue (1960) 12 DLR 466.
Limited interest
Limited interest.—may be acquired by prescriptive right.
Hazari Sardar Vs. Mozam Molla (1956) 8 DLR 640.
—Transferee (not recognized by the landlord) fl from the original tenant
remaining in possession for over 12 years acquired a limited interest of a
tenant by adverse possession.
On acquisition of a limited interest by a tenant, the landlord’s right
both for re-entry as well to sue the original tenant for rent is barred.
Naba Chandra Bangshi Vs. Naba Kumar Bangshi (1960) 12 DLR 552.
‘Lis’
‘Lis’ implies conception of an issue joined between two parties. The
decision of us in the ordinary use of the legal language is the decision of
that issue.
Dhakeswari Cotton Mills Vs. Convnr. of Narayanganj Municipality (1955) 7
DLR 618.
‘Living’ wage’.
A minimum wage is the irreducible amount considered necessary for the
sustenance of a worker and his family and for the preservation of his
efficiency while the living wage 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 wage employer’s 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 Union (1958) 10 DLR
(SC) 157 (162 1-h.col)
Local Authority
Vested and Non-Resident Property Cell not a ‘local authority’–One
appointed as a tahsilder in the Cell is not a public servant.
Keramat Ali Talukdar Vs. Election Tribunal. (1979) 31 DLR 1.
—The East Pakistan Industrial Development Corporation is a ‘local
authority’ as well as a ‘person’ within the meaning of these expressions in
Article 98(2), and as such amendable to the jurisdiction of the High Court.
Rostom Ali Vs. Chairman and Secretary (EPIDC) (1964) 16 DLR 651.
—What it means—National Bank of Pakistan does not fall within the
definition of “local authority.”
The expression “local authority” in Article 98 (2) of the Constitution
means an authority which is entrusted with the administration of a local fund.
Local authorities are bodies exercising within limited territories included in
a Province, power which belong to the Province but which by statute are
delegated to the local authority. A local authority is ordinarily charged with
functions of self-government and has power of making bye-laws, of imposing
taxation, and of maintaining and administering a local fund.
The National Bank of Pakistan which was set up by a Central Ordinance,
bears no resemblance to the recognized conception of a ‘local authority.
Deputy M. Director, N. Bank Vs. Ataul Haq (1965) 17 DLR (SC) 74.
Local investigation (inspection)
The messengers, deputed to view the land in dispute and report, examined
also witnesses. The parties were present during the investigation and the
plaintiff not only co-operated with the messengers in their activities but
refrained from objection or complaint of any kind when their report was
submitted to the court. The plaintiff contended that the messengers had gone
beyond their province by examining witnesses instead of confining themselves to
a scrutiny of the locus and the results of their own observation and that this
vitiated the judgment founded upon their report:
Held: The judgment was not vitiated.
Nkwanatahane—Nana Vs. Bchemhene Nana (1950) 2 DLR 201 (PC).
Loss of market
Loss of market due to longer voyage through breach of contract—owner of
goods entitled to damage for loss of market.
In the case of marketable commodities being carried to market, if the
ship greatly exceeds the larger estimate of the voyage through breach of
contract and the cargo owner thereby misses the market, he is entitled to
damages for loss of market.
Al-Sayer Navigation Vs. Delta International Traders. (1982) 34 DLR (AD)
111.
“Lost grant—Doctrine of—The doctrine of lost
grant can have no application to the case of a right of way exercisable by the
inhabitants of a village from time to Lime as such right is not attached to any
estate in land nor is it capable of being made subject of a grant as there are
no known grantees. The legal basis of such right lies in custom.
Asia Khatun Vs. Sufia Banu (1955) 7 DLR 71.
Limitation—Ignorance about the date of an order
affecting a person, limitation runs from the date of knowledge.
Where a litigant is kept in the dark about the date of his case, it is
wrong to say that for a remedial action against it as provided by law, time
would start to run against him from the date of the order and not from the date
when he comes to know about it.
If the order was not known to the party concerned then its date for
purpose of limitation should be taken to be the date on which the party
concerned came to know of it, and the period of limitation should be computed
from that date (Qaderuddin Ahmed, J.).
Allahdino Vs. Fakir Mohammad, (1969) 21 DLR (SC) 382.
Maladministration and high handedness.
It is also singularly unfortunate that a responsible officer like the
Sub-Divisional Officer should have passed the impugned order without applying
his mind and without affording the petitioners an opportunity of being heard in
the matter.
It is a glaring example of extreme high handedness on the part of
responsible public officials who it appears acted in utter disregard of the law
they were duty bound to obey.
Such high-handedness if overlooked and allowed to go unchecked might
undermine the confidence of the citizens in the administration and bring a slur
on the fair name of the Government. It is a case where we feel the Government
may consider instituting a departmental enquiry and take exemplary action
against the delinquent officials in the interest of justice and fair play.
Bakul Rani Sen Gupta Vs. Bangladesh (1979) 31 DLR 343.
Malafide.
Malafide is to be alleged with particularity— Assertion of general
notice not sufficient for providing malafide.
Lt. Col. Farzond Ali Vs. Province of West Pakistan. (1970) 22 DLR (SC) 203.
—Malafide charge against Government not sustainable even though what it
does is hard on a person and its order looks ugly.
Tofazzal Hossain Vs. Province of East Pak. (1967)19 DLR 529.
Malice
—Government order refusing permission to go abroad attacked as malaise
on grounds: (a) similar orders were also passed previously but some such orders
were later withdrawn; (b) petitioner was detained under preventive laws and his
organization was banned; and (c) while he was under detention, his passport was
confiscated.
Held: Action of authorities does not indicate
malafides—Fact that previous orders were subsequently withdrawn merely proves
that authorities were all the time critical and watchful in his case.
Syed Abul A’ala Moududi Vs. The Stare Bank of Pakistan (1970) 22 DLR
(WP) 59.
Malice in common acceptation means ill-wilt against a person, but in its legal sense it means wrongful act, done intentionally,
without just cause. The allegations made by the appellant clearly constitute
“malice in law’. Malice in law means a doing of a wrongful act intentionally
without just cause or excuse. If from any indirect notice the action was taken
in total disregard of the judgment in Writ Petition No. 571 of 1979, the
respondents must be deemed to have acted maliciously.
“Between malice in fact and malice in law there is a broad distinction.
A person who inflicts an injury upon another person in contravention of the law
is not allowed to say that he did so with an innocent mind. Malice in fact is
quite a different thing; it means an actual malicious intention on the part of
the person who has done the wrongful act”.
Dr. Nurul Islam Vs. Bangladesh. (1981) 33 DLR (AD) 201.
—Malice in law—Action on a legally extraneous or
obviously misconceived ground of action is a case of “malice in law”.
Dr. Nurul Islam Vs. Bangladesh. (1981) 33 DLR (AD) 201.
‘Malikana’
‘Malikana’ is an allowance which is paid as compensation for giving up
the proprietary right in lieu of which the proprietor ceases to have connection
with the land and, therefore, although income, is not derived from the land.
Mahendra Nath Bagchi Vs. Commr. Agricultural Income Tax. (1950) 2 DLR
20.
Manufacture—What it means.
Manufacture means the change in the character of goods or materials
used, so that new goods or materials come into existence. Even where the
dominant work is to repair and in the process some minor or inconsequential
manufacture of a thing is done, the business does not become a manufacturing
one.
Ramjan Ali Vs. Hedayetullah. (1979) 31 DLR(AD). 183.
‘Marfatdar’.
Acceptance of rent through marfatdar,—no recognition of transfer of a
tenancy.
Naba Chandra Bangshi Vs. Nanda Kumar Bangshi (1960) 12 DLR 552.
Marginal note of a section
Side note, although it forms no part of the section, is of some
assistance in interpreting the section inasmuch as it shows the drift of the
section. The question whether a marginal note can be referred to for an
exposition of the meaning of a section depends upon whether the note has been
inserted by or under the authority of the legislature.
Kalipada Saha Vs. State (1959) 11 DLR 231.
Maritime lien
No proof that the ship’s owner or master had committed any tort or they
are responsible for damage to the goods; hence there is no maritime lien.
In the instant case there was no proof that the owner had committed any
tort or the master of the vessel was responsible for damage to the property,
namely, the loaded salt, nor has it been contended that our municipal law has
granted a maritime lien for delay and deviation.
Al-Sayer Navigation Co. Vs. Delta International Traders Ltd. (1982) 34
DLR (AD) 111.
‘Market’—Rents and profits out of a market are benefits arising
out of the land and, therefore, come within the definition of immovable
property under section 2, clause 5 of the General Clauses Act and can be
treated separately from the land itself and can be a subject-matter of separate
lease and mortgage independently of the land on which it sits.
Profulla Kumar Sarkar Vs. Kshemada Kinker Roy (1952) 4 DLR 215.
—Market as an immovable property means the benefit that arises Out of
the, land in the shape of rents and profits derived from the market itself though
the market sits on the land. Ibid.
Martial Law Courts
Martial Law Courts being creatures either of the Proclamation or Martial
Law Regulation, have the authority to try any offence made triable by such
Courts.
State Vs. Haji Joynal Abedin (1980) 32 DLR (AD) 110.
Master and servant
The general rule is that the master is answerable for the wrong of the
servant or agent as is committed in the course of the service and for the
master’s benefit.
Sonali Bank Vs. MA Hakim (1987) 39 DLR 367.
Master entitled to terminate servant’s service
By the ordinary law of master and servant, when a servant is guilty of
misconduct, the master is entitled as of right to terminate his service without
notice. Under the general power of master and servant the Secretary of the East
Pakistan Industrial Development Corporation could dismiss those who had been
transferred to the East Pakistan Industrial Development Corporation from the
Pakistan Industrial Development Corporation.
Chairman, EPIDC Vs. Rustom Ali (1967) 19 DLR (SC) 106.
Master and Servant (Employer and Employee).
Employer’s power to discharge his employee from service cannot be
questioned—Where authority passed the order of termination of employee’s
service without applying its mind—Such order calls for Court’s scrutiny.
In the instant case the Corporation has found rightly or wrongly the
allegations against the petitioner to be serious. The order of suspension
spells out the allegations, indicates the action that is proposed to be taken,
namely dismissal from service by the Corporation and has also given an
opportunity to the employee to explain his conduct. We do not think that this
order suffers from any infirmity.
Nazir Ahmed Vs. Bangladesh Jute Industries Corporation (1979) 31 DLR
196.
—Employer’s power to discharge his employee from service cannot be
questioned—Where authority passed the order of termination of employee’s
service without applying its mind—Such order calls for Courts scrutiny. Ibid.
Master and servant—Relationship
The three jute mills, namely United Jute Mills Ltd., Meghna Jute Mills
Ltd. and Chandpur Jute Mills Ltd. were placed under Bangladesh Jute Mills
Corporation for administrative purpose—Each of three Jute Mills retained their
separate entity—An employee working in United Jute Mills remained an employee
of that mill even after the said Jute Mill was placed under the Bangladesh Jute
Mills Corporation.
Md. Motahar Hossain Khan Vs. Bangladesh Jute Mills Corporation (1984) 36
DLR (AD) 282.
—The employee in the United Jute Mills for gross financial irregularity
was dismissed after an Enquiry Committee formed at the instance of the Mill
Authority found him guilty of the charge. The relationship between the mill
authority and the employee is that of a master and servant—As such his dismissal
cannot be held illegal by the High Court Division in exercise of its writ
jurisdiction. Ibid.
—Whether relation which subsists between master and servant is or is not
applicable in case of Private Corporation. Mandamus is the proper remedy to
prevent further illegal exclusion from office in a private corporation when the
right thereto is clear (English and American Law).
B.S.I. Corpn. Vs. Mahbub Hossain (1977) 29 DLR (SC) 41-42.
Master and Servant—English Law
An order of mandamus will lie to compel the restoration of a person to
an office or franchise, whether spiritual or temporal, of which he has been
wrongfully dismissed, provided the office or fran-. chise is of public nature,
as, for example, to the office of mayor, etc.
B.S.I. Corpn. Vs. Mahbub Hossain (1977) 29 DLR (SC) 41-42.
Master and Servant—What it means.
In case of pure master and servant cases, which mean cases in which
there is no element of public employment or service, no support by statute,
nothing in the nature of an office or a status which is capable of protection?
If any of these elements exist, then whatever the terminology used, even though
in some aspects the relationship may be called that of master and servant,
there may be essential procedural requirement to be observed, and failure to
observe them may result in a dismissal being declared to be void.
B.S.I. Corpn. Vs. Mahbub Hossain (1977) 29 DLR (SC) 41-42.
—Any law enacted by a delegated authority in regard to terms and
conditions of service equally enforceable—Regulation relating to terms and
conditions of service framed by a statutory body has statutory force. Ibid.
—A contract for exclusive personal service does not necessarily
establish the relation of master and servant.
Relationship of master and servant is characterized by a contract of
service express or implied, between the master and servant. A contract of
service is one in which a person undertakes to serve another and to obey his
reasonable orders within the scope of the duty undertaken. Whether or not a particular
contract is a contract of service is a question of fact depending upon the
terms of the engagement, the method of remuneration and the power of
controlling and dismissing the worker, although none of these factors is by
itself conclusive. Ibid.
—Right founded upon a contract of service between the two is incapable
of enforcement by action in court. Ibid.
—Where an office has got a public character, it is no longer one which
comes within the category of master and servant relation. Ibid.
—In case of such public service when terms and conditions of service are
regulated by statutory provisions, rule of master and servant does not prevail.
Ibid.
—Office is one of public character, but is governed by contract of
employment—In case of breach of any terms of contract no action for
reinstatement lies. Ibid.
—Dismissal of an employee holding a statutory office by giving a
charge—Where principle of natural justice involved. Ibid.
—But simple termination of service without giving a blame or stigma,
even though illegal or irregular, will not attract the operation of the
principle of natural justice in such a case. Ibid.
—Dismissal of the servant by the former— Employees of a Corporation arc
subject to the rule governed by usual relationship between master and servant.
The Supreme Court of Pakistan held the ordinary law of master and
servant is applicable to the servants of the Corporation who were not regulated
by any statutory rules. Since the plaintiff was not entitled to any
constitutional protection, his dismissal order which was passed in compliance
with the principle of natural justice could not be challenged inasmuch as the
law of master and servant was applicable to him. He was found guilty after
proper enquiry. His master did not want to keep him in service and he was not
dismissed arbitrarily.
Small Industries Corpn. Vs. Abul Hossain (1975) 27 DLR 96.
Matrimonial disputes—Difficulties of courts while considering matters
arising out of— A court of law provides at the best an
imperfect
instrument for the determination of the rights and wrongs of the most
personal and intimate of all human relationships, that of husband and wife. No
outsider, however, impartial, can enter fully into its subtle intricacies of
feeling and conduct. But when a case involving such questions arises the Court
must do its best to judge dispassionately between the parties though it may
sometimes be left with a doubt whether with the imperfect means at its disposal
it has achieved perfect justice.
CeciI Weldron Andrew Vs. Helen Andrew (1957) 9 DLR 682 (PC).
Maxim: audi
alteram partem; no one shall be condemned unheard—Permission to go abroad
refused without affording applicant any hearing— Refusal, held, offends against
rule in maxim audi alieram partem.
Abul Aala Moududi Vs. Stare Bank of Pakistan (1970) 22 DLR (WP) 59.
‘May’—Usually used in permissive sense, but may also be used in
imperative sense.
It is true that ordinarily the word ‘may’ is used in a permissive or an
enabling sense. But this is not universally true. There arc cases in which it
is used in the imperative sense. In support of the proposition that when
statutes authorise persons to do acts for the benefit of others or for public
good or the advancement of justice, the use of the expression “may” has a
compulsory force.
Commissioner of Income Tax Vs. Messrs.
Surridge, (1968) 20 DLR (WP) 282.
“May” and “shall”—connotation
of.
The word “may”, according to its natural meaning, is a permissive or
enabling word and imports discretion. But it is not always so. Where a statute
directs the doing of a thing for the sake of justice or the public good, the
word ‘may is the same as the word “shall”.
—Again the word “shall’ does not necessarily imply a mandate and that it
is the legislative intent that determines their real import.
Tofazzal Hossain Vs. Province of E. Pakistan
(1966) 18 DLR 736.
Merger—Doctrine of
The question whether there was a merger or not depends upon the
intention of the parties.
It is open to the person in whose hands the two interests unite to keep
them apart or to sink the subordinate into the superior interests.
Tajemali Vs. Saijuddi Khan (1954) 6 DLR 25.
—When the immediate landlord of an occupancy holding is a proprietor or
permanent tenure holder and the entire interest of the landlord and the rights
in the holding became united then only merger takes place. But where the
occupancy holding and the immediate Taluka right is held by the same person
there cannot be any merger. In the first case, the maintenance of the two
separate rights in the same person would be redundant. But in the second case
the two separate rights can and must be deemed to co-exist. There could have
been no merger of the raiyati interest of the defendants with the Taluka
interest subsequently acquired by them.
Benoy Bhusan Saha Vs. Abdul Majid, (1968) 20 DLR 826.
Military law—a separate law.
Our military law is a system of law or jurisprudence which exists
separate and apart from the law which governs our judiciary in its ordinary and
general jurisdiction.
Jamil Huq Vs. Bangladesh (1982) 34 DLR (AD) 126.
‘Minimum wage’
A minimum wage is the irreducible amount considered necessary for the
sustenance of worker and his family and for the preservation of his efficiency.
Dalmia Cement Ltd Vs. Dalmia Cement Factory Workers Union (1958) 10 DLR
(SC) 157.
Minor—Minor’s right to action against his
adversary with regard to transfer of property during his minority—Minor acting
as a plaintiff and as well as when acting as a defendant.
No adverse interest can be claimed against a minor during his minority
and it can only be claimed against such minor when he attains majority.
Abbas Sheikh Vs. Abu Hossain Sarkar (1978) 30 DLR 407.
‘Minor’s interest in a suit—Suit for damages by
heirs of the deceased—If wife of the deceased is non-suited on technical
ground, its consequence may prejudice the interest of the heirs who all are
minors which a Court should not allow.
Amer Vs. Haji Ismail (1971) 23 DLR (Kar.) 1.
—Minor and lease.
The creation of a lease necessarily involves a contract. Such a contract
if made by a minor, is void. A void contract is an agreement not enforceable by
law. But though the contract was void, if it was followed by delivery of
possession, the grantee or his assignee can maintain his possession against all
except the true owner. It is not the law that because the lease is void, the
grantee can be ousted by any aggressor without title.
Julfikar Joardar Vs. Abdul Kuddus Ban (1953)5 DLR 305.
“Misdescription” of the cause title.
Misdescription of the cause title, made upon amendment, should not stand
in the way of the success of the application.
Abdul Malek Vs. Abdur Rahman (1967) 19 DLR 318.
—Misdescription of party’s name in a suit—where not fatal.
The general rule is that a company must sue or be sued not in the names
of its agents or servants but in its own corporate name; but where, however,
relief really sought is by or against the company and the error is merely one
of the misdescription, the suit though nominally by or against the agent, may
be treated in substance to be one by or against the company.
Haji Shaikh Afzal Hossain Vs. Bhabani Prosad Shaha (1961)13 DLR 639.
Money sale and rent sale—difference between the two—There is a well-demarcated and well-defined distancing between money
sale and rent sale under the Bengal Tenancy Act or the Public Demands Recovery
Act. In case of former what passes under the auction sale is right, title and
interest of the judgment-debtor whereas under the latter the holding passes
subject to certain protected interests and if there is encumbrances they could
be avoided in terms of the Act.
Julfu Molla Vs. Noab Ali (1975) 27DLR 442.
—Auction-sale not binding on a party not impleaded in the sale
proceeding and auction sale altogether a nullity—The two are different—A sale
will not be binding on a party if it was a money sale and if it had the effect
of rent sale, it will be binding on the party.
Faziul Huq Mondal Vs. Hatem Gasu (1976) 28 DLR 361.
Mortgage
Rule of Priority—Some of several mortgaged properties sold in auction
for public dues— Mortgagee for his dues at the first step to proceed against
properties not sold for public dues.
M/s. Tnpura Modern Bank Ltd. Vs. Islam Khan, (1971) 23 DLR 22.
—Mortgage and charge—Distinction.
A charge does not create any right in the property but only creates a
right of payment out of the property specified. It is a jus ad rem, right to a right, as distinguished from a jus in rem, a right in respect of the
thing itself. Whereas a mortgage is a transfer of an interest in immovable
property, as a security for the loan, a charge is not a transfer of any
interest in the property, though it is nonetheless a security for payment of
the amount. The right to recover the amount in question is not itself,
immovable property. The right to have possession of the properly can arise only
if a specified interest is actually transferred which can be done by way of
mortgage, whereas no such interest is transferred in favor of the charge-
holder.
Muhammad Nawaz Khan Vs. Muhammad Amin, (1969) 21 PLD (Lahore) 622.
—When the mortgagor loses his right over the property mortgaged.
Endorsements of the mortgage-deed showing payments of interests due on
the mortgage by the mortgagor do not save time if such endorsements by the
mortgagor arc made after he had lost his right and interest in the mortgaged
property through execution of a rent-decree by the landlord.
Madan Chand Gouthy Vs. Mohd. Nurul Huda (1979) 31 DLR 372.
Mukarrari.
The word ‘kaimi’ is of the same category as ‘mukarrari’ but its import
is not exactly the same. The term ‘kaimi’ imports permanence of occupation, but
not fixity of rent. This word is not at’ all appropriate to a tenancy-at-will,
nor the word usually used to create a life-interest.
Kalipada Saha Vs. Nitya Nanda Saha (1953)5 DLR 285.
“Mukti-Patra” (deed of release) confers no title.
Mukti-patra cannot confer title on any party in regard to any land
unless it is supported by a registered deed of transfer. Therefore, purchase
from a person who claims title to the land on the basis of a mukti-patra does
not confer any title to such purchaser.
Abdul Gafur Sardar Vs. Wazedali Talukdar (1967) 19 DLR 33.
Mushaa—The doctrine of mushna has no relation to
the provisions of CP Code and should not be confounded with the excitability of
a decree under the Code in case when decretal land is unidentifiable.
Mozaffar Ahmed Vs. Md. Osman (1976) 28 DLR (SC) 81.
Mutation
Mutation does not confer title. 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 Lutfullah Vs. Bibi Badrunnessa (1968) 20 DLR 1019.
Nadabi Patra,
Nadabi Patra being merely a deed of disclaimer disclaiming an interest
in the properties transferred by an earlier sale-deed is not itself a deed of transfer
and therefore no right of pre-emption can be claimed upon the registration of
such a deed of nadabipatra. Simply the fact that the document was registered
and ad valorem stamp fee was paid on the document that by itself cannot turn a
deed of disclaimer into a deed of transfer.
Md. Arabulla Vs. Durgaprasad Tribedi (1959) 11 DLR 539.
Naksbandi paper
Naksbandi (Statement of maps) paper is not a public document within the
meaning of the section 74 of the Evidence Act.
Province of Bengal Vs. Jamila Khausn Chowdhury (1952) 4 DLR 222.
Natural Justice: Question of natural justice does not arise where restriction on the
product of a mill has been imposed by. the executive authority in accordance
with the terms embodied in the license under which the mill products were
regulated and therefore, in such a case the mill cannot insist that before
imposing restriction it should be heard as a matter of right.
M/s. Biral Rice Mill Vs. The Province of East Pakistan, (1971) 23 DLR
142.
—It is well established that any order passed against a person to his
detriment by a quasi-judicial body contravenes the canon of natural justice if
it is passed without notice to him.
Momin Motor Co. Vs. Regional Transport Authority (1958) 10 DLR 284.
—To constitute a denial of natural justice there must be a violation of
some fundamental principle of law or procedure of such importance that it would
shock the conscience of the court and it would con- skier it to be a case where
the substance of a fair trial had been denied.
Bharat Tewari Vs. N. Hossain, Spl. Magistrate (1958) 10 DLR 481.
—Appeal involves the right of being heard. Natural justice—no one should
he condemned or deprived of the property without being heard.
Chief Commr. Karachi Vs. Mrs. Dina Sohrab (1959) 11 DLR (SC) 113.
—The principle that no man shall be deprived of his property without an
opportunity of being heard is not alone limited to a judicial proceeding, but
to all proceedings which may affect the person or property of a person. Ibid.
—Circumstances which are to be taken into account when principle of
natural justice are invoked.
The principles of natural justice are not of universal application.
Consideration of the nature ‘of things, manner and circumstances in which it is
to be done are to be taken into account in determining whether the principles
of natural justice should be applied in a particular case.
Bangladesh Shilpa Rin Sangstha Vs. Chairman, 2nd Labour Court (1980) 32
DLR 265.
—The principles of natural justice that no one should be condemned
unheard have been firmly rooted in our judicial system.
Md. Abdur Rasheed Vs. Govt. of Bangladesh (1978) 30 DLR 231.
—Statutory provisions when excludes application of the principle of
natural justice.
Md. Sekandar Hossain Vs. Govt. of Bangladesh (1977) 29 DLR 10.
—Principles of—are observed where rights affecting persons or property
are adversely affected. Ibid.
—What it stipulates,— Person proceeded against should be given an
opportunity to state his case. Ibid.
—No penal action should be taken against a corporate body without first
giving an opportunity to the body of being heard against the proposed action.
MR Khan Vs. Bangladesh (1975) 2 7 DLR 602.
—Principles of natural justice to be observed both in administrative as
well as in judicial matter.
Md. Quamruzzaman vs. Bangladesh (1977) 29 DLR 121
—Before a person is proceeded against he should know the allegations
against him and should be given an opportunity of explaining his position. Ibid.
Natural justice and administration of law
When a statutory provision can be read consistently with principles of
natural justice the courts are bound to see that the same has been observed and
complied with. Ibid.
—The principle of no man can be deprived of his property without having
an opportunity of being head is equally applicable to a corporate body.
MR. Khan Vs: Bangladesh (1975) 27 DLR 602.
Principle of the rule that no man should be condemned unheard
No man is to be condemned unheard forms an integral part of the ultra
wires rule. Observance of the rule of natural justice is an indispensable rule
of practice, whenever any decision is made directly affecting a man’s rights or
property or character.
Abdur Rashid Vs. Government of Bangladesh (1980) 32 DLR 109.
Principles of natural justice should be observed in the conduct of
domestic enquiries against employees in private autonomous bodies.
It has not been shown how the material, if any, in the records, or
recalling of the witnesses would help in his defense. If the domestic enquiry
was held by the enquiry officer honestly and bonafide, the non-compliance
alleged would not vitiate the enquiry or its result.
Md. Loqman Vs. B.A.D.C. (1980) 32 DLR 83.
—Principles of natural justice to be complied with in an enquiry against
an employee dismissed (on charges of corruption).
M.A. Hai Vs. Trading Corporation of Bangladesh, Dacca (1980) 32 DLR (AD)
46.
—Principles of natural justice are limited to giving a person an
opportunity to show cause why he should be punished for the allegation brought
against him. Ibid.
—Natural Justice—Principles—Its essential feature is, no person should
be deprived of his right without a hearing before an independent authority—Its
purpose-is to prevent miscarriage of justice.
B.S. Agents Vs. Bangladesh (1979) 31 DLR (AD) 272.
—An unjust decision by an administrative authority affecting the right
of a person can be judicially scrutinized. Ibid.
—Allegation as to contravention of the principles of natural justice is
subject to court’s decision to find out whether such principles have been
contravened. Ibid.
—Principles of natural justice is also applicable in respect of
administrative proceeding where the authority concerned is required to act on
objective determination of facts. Ibid.
—Principles of natural justice are to be read into even though there be
no positive words to this effect in the enactment—Application seeking
permission to go abroad was rejected without affording the applicant any
hearing. Person concerned held, condemned unheard against principles of natural
justice.
Syed Abul A’ala Maududi Vs. The State Bank of Pakistan, (1970) 22 DLR (WP) 57.
—Elected member cannot be excluded from the Managing Committee merely
because police said that he was not a suitable person.
The rights of an elected member of a Managing Committee cannot be
allowed to be interfered with by the executive authority upon reports obtained
behind the back of the member without giving him an opportunity to show cause
That will be violative of the principle of natural justice.
Serajul Islam. Vs. The Deputy Commissioner, Faridpur (1970) 22 DLR 753.
—An examinee was disqualified for adopting unfair means at
examination—He submitted explanation and wished to be heard in person—The
Disciplinary Committee gave him personal hearing but did neither examine the
witnesses deposing against him in his presence nor allowed him to cross-
examine them.
Held: Action taken against the examinee
disqualifying him for three years is unlawful and of no legal effect.
Malik Abdul Majid Vs. Disciplinary Committee of the University of
Punjab, (1970) 22 DLR (WP) 289.
—Rule of natural justice not confined to judicial proceedings alone but
extends to all proceedings such as those which are administrative in nature.
West Pakistan Through Secretary, Food Deptt. Vs. Haji Mohammad Akbar Khan,
(1971) 23 DLR (Peshawar) 1.
Necessary party and proper party
Necessary party to a suit when no effective decree can be passed in his
absence—Proper party to be implcadcd in a suit, when for effectual adjudication
of the matter in suit, his presence is necessary.
Bajrang Lal Agarwala Vs. Aksed Ali Shaikh (1983) 35 DLR 110.
Negotiable Instrument.
The English Common Law doctrine that a debtor should seek out his
creditor and pay the amount does not apply to negotiable instrument which
stands on a different footing.
Rabia Khatun Vs. Ram Kali Mahajan (1950) 2 DLR 385.
‘Next below rule’.
Applicable subject to Guiding Principles”— Not applicable in case of
insufficiency or unsuitability of Government servant. Government the sole judge
of suitability for promotion—Court has no right to interfere except for proved
mala tides.
Md. Aboo Abdulla Vs. Prov. of East Pak. (1960) 12 DLR (SC) 211.
‘New plea’.
Point of law requiring any fresh investigation of facts can be raised
for first lime before a court of last resort.
Gopal Das Vs. Commr. of Income Tax, East Bengal (1951)3 DLR 6.
Nim Howla.
Nim-howla (an encumbrance) does not disappear automatically on the sale
of the superior interest but has to be annulled by instituting a suit or by other
means.
Eshaque Ali Vs. Aitunessa (1984) 36 DLR 127.
—Plaintiff not paying rent for long if that destroyed the right.
Non-payment of rent by tenant for long is not a ground to draw
conclusion that thereby he has lost tide, interest and possession of the
land—Munsifs observation that as the plaintiff has not paid rent for a long
time he has lost title over it though not adverted to by the lower appellate
Court, is not a circumstance to dismiss the 2nd appeal. Ibid.
Notaries Acts
Notary’s acts in a reciprocating country will be recognized in
Bangladesh where reciprocal arrangement exists.
Nesaruddin Vs. Khalilur Rahman (1981) 33 DLR (AD) 124.
—Notarial acts done by foreign country can be accepted in Bangladesh
provided the person before whom the notarial act was done was notary public and
the State authorized him to do the notarial act. Ibid.
“Notice”—Notice served if invalid, no obligation for the party receiving
it to protest against it
It was contended that in view of the fact that the plaintiff did not
lodge any protest on receipt of the notice served upon him, he must be presumed
to have surrendered the tenancy by implication.
Where the notices were invalid the party receiving the same had no
obligation to protest against the same. Again even if that were necessary, he
may be said to have done so by the institution of the present suit.
Abdul Karim vs. Kazi Moulvi Md. Taru Mia (1966) 18 DLR 561.
Notification
Notification, its date—Notification—Date of publication, not the date of
its printing but on the day when it is communicated to the public.
Province of East Pakistan Vs. Major Nawab Khawaja Hassan Askary (1970)
22 DLR (SC) 425.
Novation of contract.
There being a contract in existence, some new contract is substituted
for it either between the same parties or between different parties, the
consideration mutually being the discharge of the old contract.
In the circumstances of the present case, there is no novation of
contract inasmuch as there is no substitution of a new contract for the old one.
Noor Ahmad Vs. Md. Shafi (1970) 22 DLR (WP) 40.