Words and Phrases
Oath of allegiance to the Government—When no time limit imposed as to
such oath taking, an employee who is ready to take such oath cannot be treated
as having lost that right.
Chairman, Bangladesh Rly. Board, Chittagong Vs. Chairman, Second
Labour Court, Dacca (1979) 31 DLR 338.
Obiter of the Privy Council
When the Privy Council interprets a section or lays down a principle of
law High Court is bound to follow the interpretation or principle, whether it
is obiter or not.
Satya Sudhir Ghosal Vs. Surendra Lal Dey Pal (1954) 6 DLR 497.
—Obiter of the Supreme Court
Any observation by the Supreme Court even obiter is binding on the High
M. Ismail and Sons Vs. Trans Oceanic Steamship
Co. Ltd. (1965) 17 DLR 269.
“Occupation” occurring in section 3(I) explained.
Government requisitioned petitioner’s building which was under
completion and which the petitioner claimed to have been constructed for his
residential purpose. On the date of requisition the petitioner was not found
residing in the building as it was incomplete in respect of some minor works.
As against the requisition order the petitioner moved the 1-11gb Court in its
writ jurisdiction in which the question arose for decision was—Whether the
building in dispute which at the time of its requisition was under completion,
can, for purposes of section 3(1) of the Act be said to have been occupied by
its owner or not?
The Division Bench of the High Court which heard the case differed on
the point and their observations were as follows:
In the face of clear provision in the Act “that no owner in occupation
of a residential house shall be required to vacate it” it cannot be accepted
that an owner who constructs premises for his personal residence but has not
yet taken up dwelling therein due to construction being incomplete is not
entitled to protection under the fourth proviso to section 3(1) of the West
Pakistan Requisition of Immovable Property Act.
S.A. Mahmood, J. Contra: The Act is intended to afford protection
against requisition of a residential house in the occupation of the owner bat
there is no such protection respecting a house which is not occupied by the
Mrs. Nema Vs. W.P. Chief Secretary, (1970) 22 DLR (WP) 9.
‘Octroi’ and ‘tax’—meaning explained
“Octroi” as defined in the Rules “means a tax on the import of goods or
animal for consumption, use or sale within a Municipality.” The word “tax” has
been explained in section 3(52) of the Municipal Administration Ordinance to
“include any tax, toll, rate, fee or other import livable under this
Zaminur Rahman Vs. Bangladesh (1979) 31 DLR (AD) 171.
—Octroi is not a tax but is in the nature
of toll or fee—The definition of Oct.roi as given in the
Rules show that though it is described as a tax it is nothing but a toll or fee
which is imposed on the importation of goods within Municipal area either for
sale, use or consumption within the Municipality. The dictionary meaning also
indicates that octroi is in the nature of a toll. Octroi, therefore is not a
tax but is in the nature of toll or fee.
B.S. Agents Vs. Bangladesh (1979) 31 DLR (AD) 272.
‘On demand’—A promissory note is payable ‘on demand’ does not
imply that a demand must be made. ‘On demand only means that a note is payable
immediately or at sight.
Rafia Khatun Vs. Rain Kali Mahajan (1950) 2 DLR 385 (395) 1.h.col).
Onus or burden of proof as a determining factor cannot arise in case
where proof has been concluded and found on a consideration of the evidence.
Najmul Huq Faraji Vs. Panchanan Poddar (1969)21 DLR 78.
Onus of proof
Initial onus of proving that the cargo carried under the bill of lading
was delivered at the port of destination in damaged condition, is on the
consignee (owner of the goods)—The onus thereafter shifts on to the carrier
first to prove that he took all reasonable care while the cargo was in his
custody and then to prove that the cargo. was damaged under circumstances
beyond his control, which exonerates him from the liability of such damage
under the provisions of the Act.
Muhammadi Steamship Co. Ltd. Vs. Province of East Pakistan (1970) 22 DLR
—Affirmative assertion in the plaint—Plaintiff to prove his cases. The
law is that the person who pleads in the affirmative of the issues is to prove
Gopal Chandra Mondol Vs. Lashmat Dasi (1982) 34 DLR 145.
—Fraud, collusion, undue influence. Where alleged—the onus is on the
party who alleged it as such. There is a presumption of good faith in human
transaction as there is a presumption of innocence in criminal matters.
Kiron Chandra Das Vs. Sirajul Hoque Patwari (1982)34 DLR 225.
—When not relevant—When both sides adduce evidence the
question of onus loses its importance and the court has to weigh the evidence
on record and come to a decision on the basis of preponderance of evidence.
Jainuddin Howlader & ors. Vs. Nabab Ali Mollah & ors. (1982) 34
—When evidence on both sides are fully read and digested—It is well-settled that when the evidence on both sides has been fully
read and digested before reaching the conclusion, the question of error in
placing the initial onus on one side or the other is not of real importance.
Badrul Haq Khan Vs. The Election Tribunal (1963) 15 DLR (SC) 389.
Ordinance being itself of temporary nature cannot repeal a permanent
Sargodha Bhera Bus Service Vs. Prov. of West Pakistan (1959) 11 DLR (SC)
‘Other Source’—Income from
An income shall only be chargeable to tax under the head “other sources”
if it does not come under any other head of income mentioned in s.6 of Income
C.I.T. Vs. Lackatoorah Tea Co. Ltd. (1979) 31 DLR 396.
The definition of the expression ‘Pakistan appeal’ is an appeal from or
in respect of any judgment decree or order of any court or tribunal (other than
the Federal Court) in Pakistan.
Federation of Pakistan Vs. A. Ahmed Hussain Shah (1955) 7 DLR (FC) 279.
Paper-book—Preparation of paper-books in the High
Court in accordance with the rules framed for the purpose for use in place of
original records which form permanent records of the High Court.
The meticulous rules for the preparation of paper-book have been framed
with the sole purpose of preparing correct and true copies of the records,
which are to be used by the lawyers as well as by the Court, instead of
original records, for the hearing and disposal of the appeal. It may also be
noticed that the paper book is to constitute ultimately, after disposal, a part
of the permanent record of the High Court which is a court of record.
The proceedings of a Court of record are called records and arc
conclusive evidence of that which is recorded therein.
Maksud Ali Vs. Eskandar Ali (1976) 28 DLR (SC) 99.
Paramountcy of Municipal law vis-avis International law
If the Code of Civil Procedure of this country provided an adequate
solution of the questions that are involved in these proceedings, then
investigation of the relevant principles of International Law is unnecessary.
It is no disrespect to the International Law nor a violation of the
dictum laid down by the Supreme Court that statutes should not be so construed
as abrogating the International Law, the
relevant part of the International Law called the Private International Law of
a country is that part of foreign law which such country adopts for solving,
within its territories, those problems in which existence of foreign elements
makes it just and fair that foreign practice, concepts, legal rights or
interests be recognized. The rules according to which a country accomplishes
this are thus a part of its own law. Sections 84 to 87A, CPC are statutorily
adopted rules of Private International Law to suit it the needs of the country.
AM Qureshi Vs. USSR, (1968) 20 DLR (WP) 207.
Pardanashin lady—Document executed by an illiterate pardanashin
lady—Onus of proof—
Deed executed by an illiterate lady. Burden of the person relying on the
document to prove that it was duly understood by the lady.
It is an established principle that in case of a document executed by an
illiterate pardanashin lady the onus is on the party who relied on such a deed
to satisfy the Court that it has been read over and explained to her, that it
was understood by her and that she had independent and disinterested advice in
Mere execution, though unaccompanied by duress, protest or obvious signs
of misunderstanding or want of comprehension is, in itself, no real proof of a
true understanding mind in the executants. Evidence to establish such
comprehension is most obviously found in proof that the deed was read over to
the set- 11cr and, where necessary, explained. The extent and character of the
explanations required must depend on the circumstances. Length, intricacy, the
number and complexity of the dispositions, of the unfamiliarity of the
subject-matter are all reasons for requiring an increased amount and efficiency
of explanation. Fraud, duress and actual undue influence arc separate matter.
Suratunessa Bibi Vs. Md. Naimuddin Mandal (1966) 18 DLR 37.
Deed of transfer
Transferee must prove that she executed the deed after a full
understanding of the nature of the transaction—The requirement that she had
independent advice regarding what she was going to do will be insisted upon
when the transferee is in a position of active confidence or had fiduciary
Fazal Ahmed Vs. Achima Khatun (1984)36 DLR 144.
—Onus of proof of a document executed by her.
In a case for setting aside a Kabala in which the executants is a
pardanashin lady, the onus heavily lies on the person who claims interest
through the disputed Kabala to prove that it was duly executed by the
Tamijur Rahman Vs. Md. Altafur Rahman (1969) 21 DLR 977.
Parliament—power of, when enacting
law, The true criterion, for the purpose of ascertaining the extent of
power which the constitution has given to the Parliament, is not what powers
are expressly or by implication are excluded from the scope of the chapter to
which alone the Parliament must have recourse if it wishes to legislate in
regard to judicial power but what powers are expressly or by implication
included in it.
Attorney General of the Commonwealth of Australia Vs. Queen (1958) 10
—Vis-a-vis, the Constitution—Parliament’s authority subject to
Parliament is the supreme legislative authority subject to the
constitutional limitations set out earlier. One of the attributes of
legislative supremacy is its power to pass any law on any subject, not
prohibited by the Constitution both prospectively and retrospectively.
Mofijur Rahman Khan Vs. Bangladesh (1982) 34 DLR (AD) 321
—Parliament validating a law declared invalid by court—and giving
retrospective operation to the law by validating it. We should concentrate here
more on the question of power of Parliament to validate a law found or declared
incompetent by a court of law. Parliament has the power to validate a law
declared by a court illegal by removing the cause of illegality or infirmity.
The basic condition of validation is that Parliament must possess the power to
legislate on the subject and having the legislative competence.
Mofijur Rahman Khan Vs. Bangladesh (1982) 34 DLR LAD) 321
Change of Parliament system to Presidential system by the introduction
of the Fourth Amendment is beyond the powers of Parliament—But in view of
several factors which have happened in the meanwhile the Court can not say that
the enactment is violative of fundamental rights.
Hamidul Huq Chowdhury Vs. Bangladesh
(1981) 33 DLR 381.
Partition—partition effected bonafide and in a legal manner cannot be disregarded
only on the ground that it was reduced to writing and registered subsequently.
Premhari Barman Vs. The Commissioner of Taxation (1972) 24 DLR 198.
—Partition of the co-sharers made amicable arrangements for separate possession of
the lands for convenience that would not amount to partition of the lands in
question by metes and bounds in accordance with law.
Anil Kumar Datta Chowdhury Vs. Province of East Pakistan, (1971) 23 DLR
—Partition deed not executed by the person lawfully authorized—Execution
by de facto guardian cannot bind the minor.
The deed of partition by which a joint property was allegedly
partitioned was not executed by a person lawfully authorized to represent the
minor. The act of the mother representing the minor as a de facto guardian
cannot be conceived to be an act authorized by law to bind the minor for all
Jasimuddin Moadal Vs. Sunila Bibi (1979) 31 DLR 367
Partition suit—Conflicting claims in respect of shares
are to be determined by the court tying the suit—co-sharer out of possession.
In a suit for partition it is incumbent upon the court not only to
determine whether the property was joint property and liable to partition but
also where there are conflicting claims to shares, for which the partition was
sought, to determine each conflicting claim which is incidental to .1ie
partition and necessary for deciding the issues.
A co-sharer out of possession would be in constructive possession of the
property through the other co-sharer in actual possession and that would not
amount to dispossession.
Partition suit may involve disputed question of title—Such questions
must be decided by the court trying the suit.
Sashi Kumar Vs. Sreemati Kusum Kumarj Debi. (1982) 34 DLR 127
—After the preliminary decree is passed there can be no abatement of
suit on the death of a party; heirs can be brought on record at any time.
Omed Ali Sikder Vs. Arman Sikder (1979) 31 DLR (AD) 320.
—Decree obtained by plaintiff and the two defendants in a suit for
specific performance of contract—the decree was not executed—Partition suit
would lie for separation of plaintiff’s share.
Three persons (the plaintiff and the 2 defendants) obtained a joint
decree for specific performance of contract, the decree was not however
executed. Dispute arose between the parties as to extent of shares which each
party has in the land with respect to which they got the decree for specific
performances of contract. Plaintiff instituted the suit (before the decree for
specific performance of contract was executed) for partition in respect of the
said land held jointly by the plaintiff and the 2 defendants and met with the
defense that a partition suit before the decree was actually executed, his
right not having been converted into a legal title, was not maintainable.
Held: Partition Suit will lie in such
circumstances, the plaintiff having a legal right, is entitled to the remedy
sought by way of partition.
D. Mohammad Hossain Vs. Abdul Malek Khan (1980) 32 DLR (AD) 24.
—For partition Suit the party must have community of interests and need
not have a legal right in respect of the property. Ibid.
—Points at issue in a partition suit between the parties making
contending claims to be determined by the court.
Mere denial of the title of the plaintiff does not convert a suit for
partition into a suit for possession. There night be numerous defendants in a
suit for partition and they might not all be agreed as to the title and
possession of the plaintiff. The court in this view would have to hold a
preliminary investigation of the properties as to which the title of the
plaintiff was admitted or established. The court would also have to determine
the properties of which the plaintiff was in possession.
A Court if a partition suit would be competent to decide a question of
title for the purpose of settling the issues in the suit and a mere denial of a
plaintiff’s right would not convert a partition suit into a declaratory suit
for title and possession.
Sashi Kumar Vs. Kusum Kumari Debi (1982) 34 DLR 128.
—Question of title involved in such suit— Strangers having title in the
subject matter of title suit, and having no community interest.
The Courts in our country refused to decide complicated questions of
title in a suit for partition. However, questions of title came to be
entertained when determination of such questions was found to be incidental to
the partition and could not be avoided in a case where it was deemed just to
direct a partition. Again, because of the requirement of presence of community
of interest amongst the parties to a suit for partition a stranger could not be
impleaded even when his presence was found necessary for doing full and
complete justice to the parties in one action. Widely prevalent practice of
benami transaction in our country caused great hardship to a plaintiff who
sought partition and separate possession with regard to some joint property or
joint family property standing in the name of a stranger, but was pushed to a
troublesome and time-consuming title suit.
The Court Fees (Bengal Amendment) Act, 1935 (Bengal Act VII of 1935) for
the first time introduced two specific provisions for suits for partition by
incorporating paragraphs VI, VIA, in section 7, for the plaintiff who has been
excluded from possession and entry No. VA in Article 17 of Schedule II to the
Court Fees Act 1870, for the plaintiff who is in possession of the property.
The procedural phrase “to enforce a right to a share in any property”, on the
ground that it is “joint family property or joint property’, in both the
provisions, has, no doubt been meant to provide for adjudication of title in
respect of any joint family property or joint property standing in the name of
others including strangers. A plea of defendant that as he entirely stands on
his independent right and that he has no community of interest with the parties
to the suit he can not be drawn into suit for partition will not affect the
suit if it satisfies the basic requirements of a suit for partition.
Abdul Majid Howladar Vs. Hakimonnessa Bibi (1979) 31 DLR 217.
Partnership—”Refusal to meet on matters of business,
continued quarrelling and a state of animosity as precludes all reasonable hope
of reconciliation and friendly co-operation are sufficient to justify a
Rahimuddin Vs. Bengal Water Ways (1979) 31 DLR 29.
Pasturage right—Claimed on the basis of customary right.
When a plaintiff sets up a prescriptive right he cannot be allowed to
succeed on the basis of customary right. An easement right of pasturage cannot
be acquired by an indefinite number of people of a certain village or villages
on the basis of a lost grant or by prescription under section 26 of the
Urination Act, but such a right can be ac4uircd by custom when all the
requisites of a valid custom are established.
A custom by which right of pasturage by long user is claimed by
villagers to lands in a neighboring village, and belonging to different
landlords, which results in precluding the land from being brought under
cultivation, is unreasonable and is not legally enforceable.
Barindra Ch. Das Vs. Mvi. Mahbubul
Quader (1955) 7 DLR 464.
—A iight of pasturage by Customs can only be claimed on the basis of a
customary right and the ordinary incidents of a customary right attached to it,
including the manner and method of its proof and that even if after such proof
the custom is found to have been established, it must still be shown that it is
not unreasonable before it can be treated as a valid custom.
Intej Ali and Intejulla Vs. Yadulla. (1960) 12 DLR 573.
Pay, arrears of
Arrears of pay (salary) due to a public servant is not a matter which
comes within the purview of ‘public duty. Mandamus cannot be issued to enforce
payment of salary to a public servant.
Pakistan Vs. Mahrajuddsn (1959)11 DLR (SC) 260.
—Pay Commission’s recommendation must be notified in official gazette to
create a legal right.
Manager. Azizuddin Industries Ltd. Vs. Abdus Satter (1979) 31 DLR 58.
When there are categories of penalty—minor penalty, and major penalties
and there are as many as four types of minor penalties, the question of
imposition of punishment becomes relevant for consideration as to the
application of mind of the authority concerned.
Bangladesh represented by the Secretary, Ministry of Public Works Vs. Md. Matiur
Rahman (1982) 34 DLR (AD) 285.
Pension and gratuity—not heritable property.
Gratuity as well as pension constitute a bounty and not a heritable
property. According to Civil Services Rule if an officer dies before actually
retiring or being discharged, his heirs have no claim to anything in respect of
his pension. Right to the officer himself to a pension is not enforceable in a
civil court. This is clear from section 4 of the Pension Act, 1871. Pensions—
Commuted pensions heritable.
Govt. of Pakistan Vs. Begum Justice Soofi (1959) 11 DLR (SC) 247.
‘Periphery’—”within the periphery of the hat”—Meaning of this expression in the context of the present case.
The learned Judges of the High Court Division, after hearing the parties,
held that the disputed plots of land having fallen within the periphery of hat
and bazar were within the boundary line of the hat and bazar. Referring in the
word periphery’ the learned judges observed that it meant circumference of any
Md. Deser Ali Vs. Bangladesh (1982) 34 DLR (AD) 103.
—The word “person” within the meaning of the sub-rule(2) of rule 1 Or.
40, CPC means a person other than a party and as such does not put any bar upon
the Court to appoint a receiver and remove the defendant from possession.
Serajul Islam Vs. Bimal Chandra Sen (1982) 34 DLR 297.
—‘Person’ and ‘individual’.
Person means an individual plus something more, viz, any company or
association or body of individuals incorporated or not. Person denotes a larger
category than the word “individual” and ‘individual’ is definitely included in
the definition of the word ‘person’, but it cannot be said vice-versa.
The term person denotes a single person as distinguished form a group or
class and very commonly refers to a private or natural person as distinguished
from a partnership, corporation or association of individuals.
Chittagong Jute Manufacturing Co. Ltd. Vs. Mohara Union Council, (1970)
22 DLR 247.
—University of Dacca is a ‘person’ and is amenable to the jurisdiction
of the High Court under Article 98 of the Constitution of 1962.
University of Dacca Vs. Zakir Ahmed (1964) 16 DLR (SC) 722.
In legal phraseology the expression “persona designata” means a person
described in the statute by his official designation, and the function may be
judicial or otherwise. If the function is a judicial function, then he is a
Court, though he is described not as a Court but by official designation.
Mil Das vs. Mustaque Ahmed (1966)18 DLR 87.
—In legal phraseology the expression ‘persona designata’ means a perston
described in the statute or legal instrument by his official designation or as
a member of a class. A function may be given to a person describing him by his
official designation and the functions may be judicial or otherwise. If the
function is a judicial function, then he is a Court, though he is described not
as a court but by official designation.
Afsaruddin Bhuiya Vs. Wazed Ali Khan (1952) 4 DLR 442.
—The expression District Judge connotes court of District Judge and does
not refer to him as a persona designata.
Azizul Haq Vs. S.M. Hanif Ltd. (1955) 7 DLR 287.
—It appears that where a judge or the presiding officer of a court
itself is directed to perform any function of an authority, created by a
statute, such a judge may be considered as a persona designata and not a court.
It is thus clear that a non-official or even an official may be
appointed as a persona designata to perform a certain function which may in
some respects be judicial but he does not thereby become a civil court.
Golam Ahmad Vs. Md. MA Karim (1957) 9 DLR 382 (386 1.h.col)
—The expression ‘persona designata’ means a person described in the
statute or legal instrument by his official designation or as a member of a class.
Amir Sultan Ali Hyder Vs. Md. K. Alam (1977) 29 DLR (SC) 295.
—Persona designasa and court—Persona designata may be a court if his
function is judicial.
Chera Dangi Mela Vs. Md Yusuf Ali (1978) 30 DLR (SC) 310.
Personal decree—In a mortgage suit nothing remains to be done after the
passing of a personal decree.
Ramani Kanta Lahiri Chowdhury Vs. Brajendra Kishore Roy Choudhury
(1956)8 DLR 609.
Pith and substance. In order to determine whether a
particular enactment entrenches upon a field which is excluded from its ambit
the rule is well-settled that the court must ascertain the pith and substance
of the enactment scrutinizing it in its entirety so’ that it may be known what
it effects and not what it may indirectly affect. If upon such examination it
is found that it in substance effects what it can effect then the fact that
even though in doing so it also indirectly or incidentally affects something
which it could not effect the enactment should be held to be intra vires.
Jagadish Chandra Mazumdar Vs. Commr. of Agricultural Income Tax (1956) 8
—The expression ‘pith and substance’ is familiarly applied to the
examination of statutes in point of their competency i.e., in a Federal
Constitution, for the purpose of determining whether a statute relates to one
subject or to another subject. It is unusual to employ this expression when
construing the scope and content of constitutional provision.
Abdul Aziz Vs. Prov. of Wes Pakistan (1959) ii DLR (SC) 126.
Plaint”—$hall contain statement of facts and on
such facts can rely for deducing legal effect for the case.
Abandonment of right which arises from statement of facts in the plaint
cannot be inferred merely from the circumstances that the plaint contains other
(alternative) statement of facts to lead to other conclusions.
Budhu Vs. Ghulam Shah (1963) 15 DLR (SC) 315.
—Variation of a case in the plaint—Not illegal when it does not cause
any prejudice to the other party—But one cause of action cannot substitute
another cause of action. Ibid.
—Alternative cases can be set up but not inconsistent case—Instances of
alternative cases. Ibid.
‘Pleader Commissioner—Appointment or removal of—High Court is the
final authority— District Judge is only a recommending authority.
Abdal Majid Vs. District Judge, Mymensingh
(1977) 29 DLR 1.
“Pleadings” Rule of pleading—Insistence on compliance with all
technicalities without regard to the substance of the matter would defeat
S.M. Ayub Vs. Syed Yusuf Shah (1967) 19 DLR (SC) 382.
Pledge or Pawn and Mortgage
Pledge or pawn of some property—Mortgage of some property—Difference
between the pledge and mortgage—-in case of the former, ownership of the
pledged or pawned property remains with the pledgor—In the case. of mortgage,
ownership partly passes to the mortgagee.
Md. Obaidul Akbar Vs. E.P. Co-operative Bank (1975) 27 DLR 523.
Police Service—All the members in the Police Service
have been described as “Declined Force” in the Constitution.
Bangladesh Vs. A.K.M. Jahangir Hossain (1982) 34 DLR ‘AD) 173.
—Police force belongs to a different classification, though a component
of” disciplined force”.
Police force, though comes within the ambit of ‘disciplined forces and
does constitute the component of disciplined force yet it has been assigned
with a different classification in the ‘disciplined force’ separate and
distinct from the army, navy or air force. Ibid.
Possession—Symbolical—Symbolical possession is as
good as actual possession against judgment-debtor. Symbolical is as good as
actual possession against a judgment-debtor, and its principle of law was
finally sealed as far back as in 1917 by the Judicial Committee of the Privy
Council in a case reported in 23 CWN 37.
Amulya Chandra Kundu Vs. Monendra Nath Biswas (1979) 31 DLR 74.
Possession and trespass
If two persons arc in possession of a piece of land, one having title
and the other not, .then the one who has title is in possession in the eye of
law and the other is a mere intruder. Possession in fact is not always
possession in law; nor it is necessary that possession in order to be
possession in law, must be possession in fact.
Sadeq Ali Shaikh Vs. Fayzuddin Ahmed (1954) 6 DLR 253.
—Persons already in peaceful possession of land in assertion of title is
entitled to recover possession of the same from a trespasser who dispossessed
him, although the title of the person possessing the land had not yet become
Although the defendants were not parties to the documents and the Suits
still the peaceful possession of the Dastidars and after that of the
plaintiffs’ (in succession to the Dastidars) being earlier and peaceful such
possession could not have been disturbed by the defendants who are mere
trespassers. The plaintiffs are, therefore, entitled to a decree in respect of
the entire disputed plot No.7 although paramount title deed does not cover the
whole of that plot.
Mahabulla Vs. Abdul Aziz (1968) 20 DLR 324.
Power of Attorney—Authority under
If a transaction is entered into by a stranger with a person holding a
general power of attorney authorizing him to sign letters and other papers on
behalf of a bank, it shall be presumed that he is entering the contract in the
ordinary course of business with full authority on their behalf and such
contracts will be binding on his principal.
PLR (1960)1 WP 658.
—Must be construed strictly—Agent can neither go
beyond nor deviate from terms of power of attorney—Attorney authorized only to
manage principal’s property and to obtain loan on behalf of principal on
security of principal’s property—Such authority, held, cannot be extended so as
to enable attorney to mortgage property of principal for loan obtained by third
Eagle Star Insurance Co. Ltd. Vs. Usman Sons Ltd., (1969) 21 PLD
—Whether a power of attorney executed in India and authenticated by a
Magistrate in India and not authenticated by any authorized officer of
Diplomatic Mission of the then Pakistan in Calcutta is a valid document in
Bangladesh which could be acted upon.
A power of attorney executed as required by the Registration Act confers
power of the attorney to act.
A power of attorney executed in terms of Registration Act or under other
provisions of law which confers a valid power on the attorney to act as an
agent for the principal does not require registration except that its
authentication under the law is necessary.
Nurunnessa Vs. Babar Ali Bepari (1981) 33 DLR (AD) 124.
The context of the preamble cannot either enlarge or abridge the meaning
of the enacting parts in absence of any ambiguity therein. Province of East
Pakistan Vs. Sirajul Huq (1967) 19 DLR (SC) 281.
—Preambles have been regarded as of great importance as guides to
construction because they set out the facts or state of the law for which it is
proposed to legislate by the statute. In other words, the preamble is a useful
guide as to the scope and meaning of the different provisions in the statute.
Pasharuddin Ahmed Vs. Jolekha Khatun (1953) 5 DLR 527.
A decision is to be read with reference to the facts and circumstances
of the case and not independently of them.
Abdul Gani Talukdar Vs. Rushan (1960) 12 DLR 40.
—If two decisions are inconsistent, the court can choose which to
Wahed Ali Mia Vs. Haji Abdul Wahed (1954) 6 DLR 206 (209 l-h.col).
—The decisions of Indian Republic are not binding on the courts in
Pakistan, but that should not prevent the latter from referring to the legal
principles enunciated by the former.
A.K.R. Ahmed Vs. Govt. of East Bengal (1951) 3 DLR 50.
—Every case has to be read with the fact of that case and every document
is to be read with reference to the particular wording of the same.
Enayet Hossain Chowdhury Vs. Member, Board of Revenue, E. Pak. (1960)12
—Even though the decisions of the Calcutta High Court arc no longer
binding on the High Court of East Pakistan, yet those decisions were given in
respect of laws which then applied and still do apply to this part of the
country. They have established a basis for the regulation of rights, liabilities
and interests in these parts over a large number of years and this High Court
would be reluctant to bring in a new order and make a sudden change in the
interpretation of that law applying to this part of the country.
Kala Gazi Vs. Abdul Ghafur Bhuiya (1960) 12 DLR 345.
—Their binding force (case-law of superior courts—its binding effect).
A case is only an authority for what it actually decides. I entirely
deny that it can be quoted for a proposition that may seem to follow logically
from it. Such a mode of reasoning assumes that the law is necessarily a logical
code, whereas every lawyer must acknowledge that the law is not always logical
Shahidullah Kazi Vs. A.D.C., (1968) 20 DLR 633.
Pre-constitutional law—In conflict with the
Constitution. If a pre-constitutional law comes into conflict with any
Fundamental Rights it is void from that time.
The position is different in the case of law which is
pre-constitutional, that is, a law which was promulgated when there was no
constitutional prohibition as provided in Article 6(2).
Ful Chand Das Vs. Mohammad Hammad (1982) 34 DLR (AD) 364.
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 examine
disqualifying him for three years is unlawful and of no legal effect.
Mulik Abdul Majid Vs. Disciplinary Committee of the University of Punjab,
(1970) 12 DLR (WP) 289.
“Prejudicial act”—Explained in relation to a public speech
To determine whether the speech was in itself an incitement to haired
and contempt for the Government established by law, it is important first to regard
it as a whole, to determine its scope and content, and the direction into which
it was designed to guide the minds and actions of the audience.
The law .would, however, not begin to apply unless the words used were
in themselves of a character such that they would bring about in the minds of
the audience a strong revulsion of feeling against the established Government,
so that a state of active contempt for it would arise, coupled with such
aversion as is accompanied ordinarily with a desire to injure or destroy the
object of the aversion.
The particular reference to the existence of power of detention without
trial was not irrelevant to the speech, and to mention the fact, in an
evocation to the audience to strive in a united manner for the grant of
fundamental rights, was apposite.
Province of East Pakistan Vs. Tofazzal Hossain (1965) 17 DLR (SC) 453.
Preliminary and final decree—The proceedings in a
partition suit subsists till passing of the final decree. By the preliminary
decree only disputed question of title, if any, and extent of share of the
parties along with the question of possession, are determined.
Omed Ali Sikder Vs. Arman Sikder (1979) 31 DLR (AD) 320.
The word ‘premises’, what it means
—The word ‘premises’ includes not only a building or hut but also
grounds, among other things.
Abdul Mutaleb Vs. Musammat Rezia Bgum. (1970) 22 DLR (SC) 134.
Presumption—Possession goes with title.
If the evidence of possession on behalf of the plaintiffs and on behalf
of the defendants as to the former’s possession within 12 years before suit is
evenly balanced the presumption that possession goes with title shall prevail;
where the evidence adduced by both the parties, although unsatisfactory, is not
altogether valueless, the court is entitled to take into consideration the
presumption that possession arises from title.
Md. Hossain Mia Vs. Shujayatullah (1984) 36 DLR 191.
Who died first—Presumption
Male and female both killed by a mob— Presumption is male member was
In case of a dispute about inheritance the question arose as to which
person, male and female, who were both killed by a rioting mob, was killed
Held: In a general massacre, man would prefer
to be killed first, and would avoid the ugly spectacle of his own womenfolk
being slaughtered right before his eyes. On the other hand, the mob would also
naturally be interested to finish men folk first. It can, therefore,
legitimately be presumed that men folk must have been annihilated first before
the turn of the womenfolk came.
Abdul Muqim Vs. Settlement and Rehabilitation Commissioner, (1969) 21
DLR (WP) 201.
—Presumption as to document’s date of execution— There is a general presumption as to the correctness of the date the
document bears which is by no means conclusive. Such presumption loses it force
when evidence is adduced by both sides.
Md. Jafar Ali Vs. Md. Abdul Majid (1967) 19 DLR 40.
Principal and Agent
The tie between the principal and agent being non-existent, any party
stepping into the shoes of the agent cannot revive the relationship.
It has been contended that since, as a matter of fact, it is the
Government of Bangladesh who want to prosecute the suit, the application of
provisions of section 83 of the Code do not arise. This submission of the
learned Advocate would have carried much weight had it not been a fact that the
Government of Bangladesh by virtue of the provisions of the President’s Order
took over only the management including assets of the agent and not the
management and property of the principal. That makes the real difference.
Bangladesh I.W.T. Corporation by stepping into he shoes of the Agent cannot
claim to have the same relationship with the principal; this submission of the
learned Advocate cannot also be accepted.
The United Oriental Steamship Co. Ltd. being a Pakistani-based company,
is barred from bringing action in any Court of Bangladesh. However, the
consistent view is that in such a situation it is not proper to dismiss the suit
but to stay the same till such time when the plaintiff is in a position to
prosecute the suit or make necessary arrangements for prosecution of the suit.
United Oriental Steamship Co., Karachi Vs. Starbac Co., Naviera, (1973)
25 DLR 114.
—Where the tie between the principal and agent is non-existent, any
party stepping into the shoes of the agent cannot revive the relationship. Ibid.
Principle of Natural Justice
Once a license is granted and it is sought to be cancelled on a charge
which amounts to the determination of a guilt, the principle of Natural Justice
is attracted and a show cause notice becomes necessary.
Haji Sharafatullah Vs. Deputy Commissioner, Dinajpur (1970) 22 DLR 242.
Private International Law
Recourse to the provisions of Private International Law for realization
of decretal dues being expensive and time-consuming provisions of Or. 18, r. 5
can be availed of.
Bangladesh Vs. Unamarayen S.A. Panama (1977) 29 DLR 252.
Prize Court’s decisions.
“Proper Officer of the Govt.”: meaning of, Proper Officer or the
Solicitor does not represent the Government according to the Original Side
Rules— cannot therefore file an appeal in such capacity against the decision of
the Prize Court.
Govt. of Bangladesh Vs. M.R. Khan (1976) 28 DLR 215.
Prize Court money.
It cannot be held that the Government can deal with the Prize Court,
money as it deems fit, excepting in the manner referred to in the judgment of
High Court Division.
Bangladesh represented by the Secretary, Ministry of Law Vs. Hon’ble Judge,
Prize Court (1982) 34 DLR (AD) 213.
Prize Fund could only be distributed or invested in accordance with
rules under Or. 34 of the Prize Court Rules.
The Prize Fund belongs to the State to be kept in the custody of the
Prize Court and the Fund can only be disposed of by a judicial order to the
Prize Court upon an appropriate proceeding.
Govt. of Bangladesh Vs. Judge, Prize Court. (1980) 32 DLR 194.
Confirmation of probationers. in the discretion of the employer.
Probationers remain as such till appointed to a permanent post—Nor can he
claim, when permanently appointed, to be confirmed from the date of the
original appointment as probationer though, in usual course, confirmation takes
place from the date of original appointment. Confirmation is also dependent
upon various circumstances.
Muhd. Naseem Ahmad Vs. Miss Azra Feroz Bakht (1968) 20 DLR (SC) 79
Procedure, law of.
Law of Procedure takes effect prospectively. Manmatho Nath Poddar Vs.
Tripura State Bank (1959) 11 DLR 204
—Compliance with the rules of—Imperative.
Enactments regulating procedure in courts are imperative, and not merely
directory. If, for instance, an appeal from a decision be given with provisions
requiring the fulfillment of certain conditions such as giving notice of appeal
and entering into recognizance’s, or transmitting documents within a certain
time, a strict compliance would be imperative and non-compliance would be fatal
to the appeal.
Mohammad Hakim Meah Vs. Mafizullah Dhupi (1959) 11 DLR 438.
Procedural law Retrospective operation of—Where
retrospectively affects a person adversely, a courts should be chary of giving
retrospective effect. It must be pointed out that if in this process any
existing rights are affected or the giving of retrospective operation causes
inconvenience or injustice then the courts will not, even in the case of a
procedural statute, favor an interpretation giving retrospective effect to the
statute. On the other hand, if the new procedure is of such a character that
its retrospective application will tend to promote justice without any
consequcnt4Il embarrassment or detriment to any of the parties concerned, the
courts would favorably incline towards giving effect to such procedural statutes
Regulation 3(2) if given retrospective operation then at once it will
deprive the accused from right of an appeal which was provided for by the Special
Haji Joynal Abedin Vs. State (1978) 30 DLR 374
Bangladesh was placed on Martial Law on 15.8.75 by Mr. Khondker Mostaque
Ahmed under Proclamation of 20.8.75—He made over Presidentship to Mr. Justice
Sayem, on 6.11.75 who became the Chief Martial Law Administrator on 8.11.75.
Sultan Ahmed Vs. Election Commissioner (1978) 30 DLR 292.
—Major General Ziaur Rahman was appointed Chief Martial Law
Administrator on 29.11.76 by the Third Proclamation. Ibid.
—Major General Ziaur Rahman succeeds President Sayem after latter’s
resignation on 12th April, 1977—Constitution not abrogated but made subject to
Martial Law. Ibid.
—Proclamation of 20-8-75—Its provisions under clauses (d) and (e). Clauses
(d) & (e) of the Proclamation dated 20.8.75 which are relevant in this case
are quoted below
(d) This Proclamation and the Martial Law Regulations
and Orders and other Orders made by mc in pursuance thereof shall have effect
notwithstanding anything contained in the Constitution of the People’s Republic
of Bangladesh or in any law for the time being in force.
(e) The Constitution of the People’s Republic of
Bangladesh shall, subject to this Proclamation and the Martial Law Regulations
and Orders and other Orders made by me in pursuance thereof, continue to remain
in force. Ibid.
—Relevant parts of para (3) of the Preamble of the Proclamation is dated
20.9.75 and clause (I) of the Proclamation is dated 8.11.75. Ibid.
Proclamation and Martial Law— B y Proclamation of
20.8.75 Court’s jurisdiction to call in question Proclamation and Martial Law
Regulations taken away. Ibid.
—Martial law is the supreme law of the land— Constitution subordinate to
it—Its validity can not be questioned by courts. Ibid.
—The Appellate Division’s observation in the case of CP No. 17 1/1977 is
to The following effect:
“The validity of such legislation which may take the form of either a
Proclamation or Regulation or Order cannot be challenged as invalid in ay Court
of law including the Supreme Court. Mr. Khondker Mostaque Ahmed, who became the
President of Bangladesh, assumed full powers of the Govt. and by clauses (d)
& (e) of the Proclamation made the Constitution of Bangladesh which was
allowed to remain in force, subordinate to the Proclamation and any Regulation
or Order as may be made by the President in pursuance thereof.., under the
Proclamation……..the Constitution has lost its character as the Supreme Law
of the country’. Ibid.
Martial Law—Notification of the Chief Election
Commissioner—Articles 43, 51, 119 and 123 of the Constitution were suspended
and would remain so till 3rd June, 1978. Ibid.
Proclamation 1 Clause (e)—”Any other orders”,
mean all orders whether made in exercise of executive or legislative powers. Ibid.
Martial Law—Sovereign authority of the State now lies
in the hands of the Chief Martial Law Administrator. Ibid.
President Khondker Mostaque did not enter into the office of President
on 15.8.75. He took over all powers of the Govt. in a manner not contemplated
by the Constitution—Source of power of Proclamation and so long it remains in
force election to the Presidentship will be controlled by it.
Fixation of time for holding election to the office of President is a
matter of political expediency.
The Constitution’s position as at present is very precarious.
The Constitution has not been killed nor has it been allowed to live
with full force of its life; it is subordinate to the Proclamation. Martial Law
Regulations and Orders or even any other Order made under the Proclamation.
Sultan Ahmed Vs. Election Commr. (1978) 30 DLR 291.
Proclamation of Martial Law—On 20th August, 1975. Clauses (b) (i) & (iv) :
President’s power to set up Special Court and Tribunal by Martial Law
Haji Joynal Abedin Vs. State (1978) 30 DLR 371.
Regulation 3(2) of 1975.
Govt. is authorized to liar for cases from one M.L. Court to another
such Court r from Criminal Court or Special Tribunal to M.L. court—It has not
specified the case or class of cases that may be so transferred—M.L. Court is
not vested with any kind of special jurisdiction—Its jurisdiction with the normal
criminal courts is concurrent. Transfer of a case from a Tribunal exercising
special jurisdiction to an M.L. Court not having any special jurisdiction is
unlawful. Regulation 3(2) of 1975 provides.
“Government may transfer a case from one Martial Law Court to another
Martial Law Court or from a Criminal Court or Special Tribunal to Martial Law
Haji Joynal Abedin Vs. State
(1978)30 DLR 371:
“Professional misconduct’ is fraudulent or grossly improper conduct in
the discharge of professional duties. Two elements arc disclosed as necessary
ingredients of the offence. Firstly, the conduct must be in the discharge of
professional duties. Secondly, it must be a conduct involving moral turpitude.
What is necessary to find is something of a gross or evil nature without
which no conclusion of professional misconduct can be reached. Conduct which is
consistent with the rules and traditions which govern the conduct of Advocates
and Barristers and even the commission of a grave irregularity are insufficient
to constitute a ‘professional misconduct. Per Cornelius 3., (Majority agreeing
All Vs. Honb’le Judges of Lahore high Court (1956) 8 DLR (SC) 140.
—Per Munir CJ. (Disagreeing from the majority view): Disciplinary
proceedings may be taken against an advocate if in the opinion of the court he
has been guilty of some misconduct which has a bearing on the question whether
he is a fit person to continue to be an officer of the court, the misconduct
need not be attributable to him while he was acting as an advocate. The degree
of the misconduct may influence the court considering whether proceedings
should or should not be started against him as well as in determining the
amount of punishment but misconduct being proved it does not at all affect the
court’s jurisdiction to express its disapproval of that conduct.
Ali Vs. Honb’le Judges of Lahore high Court (1956) 8 DLR (SC) 140.
Proforma: The perform means as a matter of form. A
proforma-opposite party is only a formal opposite party as opposed to a real
Malik Md. Qasim Vs. Mian Md. Nuruzzaman, (1970) 22 DLR 204.
A promissory note is defined in section 4 of the Negotiable Instruments
Act as an instrument in writing (not being a bank note or a currency note)
containing an unconditional undertaking signed by the maker, to pay on demand
or at a fixed determinable future time a certain sum of money only to, or to
the order of, a certain person, or to the bearer of the instrument. It should
be noticed that there is no mention of consideration in the definition and in
that it differs from the definition of an agreement under the Contract Act. The
maker or a holder of negotiable instrument, e.g. a promissory note, may endorse
it by signing the same otherwise than as such maker, for the purpose of
negotiation. He is thereupon called the ‘endorser’.
Ismail Vs. Fida Ally (1965) 17 DLR (SC) 531.
—Suit for recovery of money due on promissory note insufficiently
stamped, must fail, but if the plaint discloses that there was an agreement by
the loanee to pay the money received, the plaintiff is entitled to fall back
upon that agreement even though the Suit not maintainable on promissory note:
Independent contract made out in the plaint may be accepted when the case on
promissory note fails.
If the suit is based on an inadmissible promissory note, it cannot form
the basis of a claim. No decree can be obtained on the promissory note itself,
it in a case where plaintiff is able to prove an independent contract in
respect of the same transaction, there is no reason why he cannot do so.
If the plaintiff had founded an alternative case in the same plaint,
there is no dissent from the proposition that he can do so.
It will be found on a perusal of the plaint that the plaintiff has based
his case on the promise of repayment and on the defendant receiving the
aforesaid sum of money. Further the plaintiff’s case is that the promissory
note was a collateral security to safeguard the payment of the money.
Even if the promissory note cannot be the basis of plaintiff’s claim,
there is no reason why he would not be allowed to prove the alternative case
which he had made out, namely, a breach of an undertaking given by the
defendant to return back the money which he had received from the plaintiff.
Haji Abdus Samad Vs. Fakir Mia (1966)18 DLR 569.
—Surety’s liability—A surety is liable to the assignee of a
promissory note. On the assignment of a debt to a thud person all the right,
attached to it including the guarantee are acquired by the assignee who can
file a suit against the surety. The assignment of a debt does not amount to a
variation of a contract and does not absolve the surety of his liability to pay
of debt. PLR (1960) 1 (WI’) 544.
—A promissory note payable on demand does not imply that a demand must
be made and the words ‘on demand only mean that a note is payable immediately
or at sight.
A promissory note that is payable on demand or at sight is governed Art,
73 of the Limitation Act and time runs from the date of the execution of the
instrument and under section 64 of the Negotiable Instrument Act where note is
payable on demand, no presentation is necessary.
Rabia Khatun Vs. Ram Kali Mahajan (1950) 2 DLR 385.
Petitioner promoted to the higher grade over 5 years ago—Such promotion
cannot be assailed on the ground of mistake.
Since the petitioner got a vested right to the post of Office
Superintendent it cannot be assailed after 5 years on the ground of mistake
committed by somebody else. The impugned order has certainly reduced the
petitioner in rank and as such it is violative of the Corporation’s Service
Kazi Ali Noor Vs. Secretary, Ministry of Agriculture (1979) 31 DLR 427.
—Promotions to the higher post—are made on seniority basis. It will be seen from the Notification
incorporated in the Establishment Manual that the prerequisites for promotion
from the Sub-divisional Adjutant of Ansars to the District Adjutant of Ansars
was that one should have 5 years of service as Sub- divisional Adjutant of
Ansars. It transpires from the records that the promotions to the higher posts
are made on the basis of seniority in service. The petitioner being senior in
service in having joined the post of Sub-divisional Adjutant of Ansars earlier
than the other respondents it could not he said that the promotion of the said
respondents were in accordance with law.
S. Monwarul Wadud Vs. Md. Zahirul Hoque (1982) 34 DLR 241.
—Promotion to the higher post— Condition for promotion. The Corporation case is that due to mistake committed by their officers
the earlier promotion of the present petitioner was given but the earlier
promotion is not found to have been barred by any statute or rule. Promotion
was governed by senioritycum-efficiency. That the petitioner was efficient is
not disputed. So, on the ground that there were some persons senior to him, his
promotion cannot be assailed after 5 years. As to requirement of at least 2
years service for the post of Head Assistant for qualifying the petitioner to
be promoted to the post of the Office Superintendent, this requirement is not
statutory but it is the requirement of promotion procedure which is quite
different from the Service Regulation made under the East Pakistan Agricultural
Development Corporation Ordinance 1961. This requirement might be relaxed in
Kazi Ali Noor Vs. Secretary. Ministry of Agricultare (1979) 31 DLR 427.
—Promotion—rule of seniority, cum fitness—can be changed by Government to one depending upon result of
departmental examination— Government entitled to make such rules.
Central Board of Revenue Pak. Vs. Asad Ahmed Khan (1960) 12 DLR (SC)
Seniority of directly recruited officer as against a ‘promoted
officer—Determinable with reference to date of commencement of officiating of
Bashir Ahmed Khan Vs. Mahmud Ali Khan Chowdhury (1960)12 DLR (SC) 94
Proof of facts by affidavit—Counter- affidavit
in denial of the fact stated in the affidavit— Effect.
It is open to a Court on sufficient grounds to permit a fact to be
proved by an affidavit. Affidavit filed along with an application can be used
as evidence of facts alleged therein and it cannot be rejected merely because
there has been a verbal denial of the allegations by the opposite party.
Admission of affidavit in proof of facts is subject to the proviso that
in case the opposite party controverts the allegations by filing a counter affidavit
or demands the attendance of the deponent for his cross examination, the party
relying on the affidavit must produce him in the witness box and if the
respondent fails to submit to the cross examination, the affidavit shall lose
all its force and cannot be acted upon.
Abdul Hamid Vs. Malik Karam Dad PCS Election Tribunal, Rawalpindi (1966)
18 DLR (WP) 3.
Proviso—How to construe it
The effect of a proviso is to except something enacted therein which but
for the proviso, would be within it. The natural presumption is that but for
the proviso, the enacting part of the section would have included in it the
subject-matter of the proviso. In principle also the words of a proviso are to
be construed strictly; and confined to the special case which its words enact.
It would be wrong to construe those words as being co-extensive with those
words used in purview, particularly where the effect might be of bringing about
a repeal of the purview.
East West Steamship Ca. Vs. Pakistan (1958) 10 DLR (SC) 52.
The words ‘public agencies’ make it clear that the doctrine of immunity
has no application to private individuals or their properties.
Master Amiruzzaman Vs. Crown (1953) 5 DLR 323.
—Even in de sphere of public agencies, whether the principle applies,
there is a growing opinion shared by most of the countries and the business
world that the principle of the immunity should not extend to public vessels
engaged in commercial undertakings. Ibid.
Public corporation may be of various types
Public corporations set up by the State again may assume various forms.
It may choose to set up a corporation under the Companies Act either
contributing entire share capital by the Government or dividing the
contribution of share capital between the Government and the public. It may set
up a corporation by a statute. This statutory corporation again is sometimes
made amenable to different provisions of the Companies Act subject to the
statute and sometimes it is kept totally outside the ambit of operation of the
Companies Act, governable wholly by the incorporating statute itself. A public
corpora- lion may function as a government department or its agent or both or
may be totally independent of either having its down independent corporate
B.S.I. Corpn. Vs. Mahbub Hossain (1977) 29 DLR (SC) 41.
—Industries in private sector—Masters of their own house—Govt. exercises
limited control. Ibid.
—National corporations are public service corporations and not a
department of the State. Ibid.
—Public corporation set up by State different from private corporations
set up under the Companies Act. Ibid.
Public Corporation—Its formation and functions—Entity of
Government companies and statutory corporations distinct and separate from the
Government and their employees are not regarded as civil servants. Ibid.
Public enterprise—Forms in which States have established
public enterprises are mainly of three types: (1) Departmental administration;
(2) the joint stock company controlled completely or partly by public authority
; and finally (3) the public corporation proper, as a distinct type of corporation
different from the private law company. Ibid.
Public Office—Guarantee as to such office conferred by
The necessary ingredient of a public office appears to have been
correctly stressed in a definition occurring in the Extraordinary Legal
Remedies by “Ferries” at page 199 which runs as follows: “The public office is
the right, authority and duty created and conferred by law, by which an
individual is vested with some portion of the sovereign functions of the
Government to be exercised by him for the benefit of the public, for the term
and by the tenure prescribed by law. It implies a delegation of a portion of
the sovereign power. It is a trust conferred by public authority for a public
purpose, embracing the ideas of tenure, duration, emoluments and duties.”
Munshi Abdul Jabbar Vs. Barisal Municipal Committee, (1968) 20 DLR 1186.
Public officer to exercise authority vested in them for the benefit of
Chowdhury Noor Muhammad Vs. Province of West Pakistan (1971) 23 DLR
Public policy—When public policy requires the
observance of a provision of a particular law, it can not be waived by an
Dhirendra Nath Datta Roy Vs. Sudhindra Chandra Chakroborty (1959) 11 DLR
—Public policy and morality—Public policy and morality referred
to in section 23 of the Contract Act, are by their very nature, things and
always an unsafe and treacherous ground for legal decision. The determination
of what is or what is not contrary to public policy or morality must
necessarily depend upon the merits in each case and upon the state of
development of public opinion and morality of the community concerned as a
whole. The courts are as such very c1utious in deciding this question and
normally reluctant to invent new heads of public policy or to extend it beyond
classes of cases already covered by it.
Haji Sanu Mia Vs. Musammat Al-Haj Jahanara Bagum (1956) 8 DLR 616.
—Public policy does not comprehend, as often popularly imagined, all the
political policies from time to time of the Government, nor does it render void
agreements merely because they tend to defeat some purpose ascribed to the law
which is neither apparent nor necessarily implied in the language of the
Public purpose—When a requisition order cannot be
supported in law not being one for a public purpose, the difference that the
order was made for an individual or for a private limited company is of no
Razab Ali Vs. Prov. of East Pakistan (1958)10 DLR 489.
—In each case the court will have to consider on the facts whether the
purpose is a public purpose or not. It is, therefore, not proper nor desirable
to lay down any definition of ‘public purpose’.
The phrase ‘public purpose’ must include a purpose, that is an object or
aim, in which the general interest of the community, as opposed to the
particular interest of individuals, is directly and vitally concerned.
Sarat Kumar Kanungoe Vs. Prov. of East Pakistan (1958) 10 DLR 393.
—Accommodation acquired for the residence of Government servants is as
much for Government purposes as acquisition for the location of Government
Pakistan Vs. Muhammad Ali (1960) 12 DLR (SC) 58.
—Public purpose of charitable nature—The word
‘charitable’ includes the advancement of public utility. 1955 PLR (Lak.)
—‘Public purpose’—How it is to be interpreted and viewed—The Privy Council in Pettit’s case repelled the contention that there
cannot be a public purpose in taking land, if that land when taken, is not in
some way or other made available to the public at large.
Bangladesh Vs. Winfred Rubi (1982) 34 DLR (AD) 162.
—Co-operative-housing society—Acquisition of land for profiteering
purpose—Not public purpose.
Md. Ismail Vs. Bangladesh (1982) 34 DLR 4.
Public servant—Public Servants—
Seniority—Determination—violation of fundamental principles—appropriate case
Salamat Ali Jafri Vs. Prov. of West Pakistan (1956) 8 DLR (WPC) 72.
—Arrear of pay—suit for, by public servant against the State not
maintainable—only remedy for, the public servant is an appeal of an official or
Pakistan Vs. Mehrajuddin (1959) 11 DLR (SC) 260.
—Arrears of pay due to a public servant is not a mailer which comes
within the purview of ‘public duty’; mandamus cannot be issued to enforce
payment of salary due to a public servant. Ibid.
—Service liable to be terminated by one month’s notice—No action taken
after inquiry on charges but services terminated by one month’s
notice—Termination not necessarily mala fide. (1956) PLR (Lah) 1920.
—Dereliction of duty by public servants in the discharge of their duty
with inevitable consequence. It was indeed unfortunate that with full knowledge
of the injunction order these responsible government officers should have
violated it and taken the law in their own hands.
K.M. Morshed Vs. Executive Engineer (1976) 28 DLR 450.
Determination of seniority—Seniority in the
grade is to be determined from the date of appointment to the grade,
confirmation takes place in order of that seniority, subject, of course, to the
rule of efficiency and fitness.
Munshi Muhammad Vs. General Manager, (1970) 22 DLR (SC) 331.
Purchase and Sale—In the absence of a statutory provision of
land such words as ‘sale’ and ‘purchase’ arc frequently used in connection with
transactions by which the transfer of ownership in land takes place in the
absence of the element of mutual assent.
Rasu Taito Nalukuya Vs. Director of Lands (1959) 11 DLR 81 (PC).
When an act is manifestly without jurisdiction that act cannot be protected
on the basis of the expression “purported exercised in the validating clause of
5th Amendment of the Constitution.
It is true mala fide act is also not protected but then malafide is to
be pleaded with particulars constituting such mala fide and established by
cogent materials before the Court.
Nasiruddin Vs. Government of Bangladesh (1980)32 DLR (AD) 216.