Code of Civil Procedure, 1908

Order 1, Rule 1 For declaration of his title to the suit land claiming the same by way of inheritance from his father and by amicable arrangement with other heirs of his father Md. Hashmat Ullah Tapadar vs. Md. Baset Khan (Mohammad Fazlul Karim J) (Civil) 5ADC 565 Order 1 Rule 8 The decision taken by No. 4 Digholbak Union Parishad for constructing perma nent office of the said union parishad at Nandipur village being legal, valid, bonafide and within jurisdiction is bind- ing on the defendants and the decision taken by defendant Nos.2 and 4 in re- spect of construction of permanent of- fice of the said union parishad at Kamargaon village is illegal. Md. Rus- tom Ullah vs. Md. Zomiruddin (Md. Tafazzul Islam J) (Civil) 7 ADC 541 Code of Civil Procedure [V of 1908] Order 1 Rule 8-Where there are numerous persons having the same interest in one suit, the Court may direct that one or more of such persons may sue or be sued, or may defend, in such suit, on behalf of or for the benefit of, all persons so interested. The High Court Division held that in a suit many persons can be joined/added as plaintiffs as per the Code of Civil Procedure. In the instant case the Managing Committee of the Mandir consisting of 8 persons added as next friends of the deity is to protect the interest of the minor deity and by allowing the application the learned trial Court did not commit any error of law rather rightly allowed the application to protect the interest of the deity. Md. Azam and others Vs. Sree Sree. Dashabhuja Mata and others. (Civil) 19 ALR (HCD) 12-17 Order I, rule 9 From the above, it is crystal clear that the plaintiff was aggrieved by the letter dated 18.6.2002 of the Board. The plaintiff was not at all aggrieved by any action either of the Governing Body or its members and as such neither the Governing Body nor its members are necessary parties to the suit. In the plaint itself the plaintiff has not prayed for any relief against the Governing Body of the school and its members. The Court should not direct to add a person as defendant when the plaintiff is opposed to such addition. The reason is that the plaintiff is dominus litis. The plaintiff is the master of his suit and as such he should not be compelled to fight against anybody whom he does not wish to fight and against whom he has not sought any relief. Therefore, the High Court Division erroneously came to a finding that the suit was bad for defect of parties and for that reason remanded the suit to the trial Court for impleading the necessary parties to the suit. The findings arrived at and the decision made by the High Court Division having not been made on proper appreciation of law and fact call for interference by this Division. Rafiqul Islam vs. Board of Secondary and High Second- ary Education (Syed Mahmud Hossain J) (Civil) 10 ADC 315 The Code of Civil Procedure for addition of party, Order I rule 10(2) It appears from the record that in the instant case though the petitioners have not enclosed the application under Order I rule 10(2) of Code of Civil Procedure in course of hearing of the Rule the learned Advocate for the petitioners have frankly conceded that the 3rd party applicants are claiming title on the basis of registered deeds from the defendant No 12-14 and that their deeds are prior to the date of execution of plaintiffs. Noor Jahan Begum vs. Golam Mostafa (Mohammad Fazlul Karim J) (Civil) 6 ADC 558 Order 1 rule 10 Whether the High Court Division was in error in nullifying the proceeding conducted by the Additional District Judge, inasmuch as the law does not say that trial by an Additional District Judge who was entrusted with the trial of Artha Rin Suit would be invalid be- cause of this lacuna. One Bank Limited vs. Chaya Developer (Muhammad Imman Ali J) (Civil) 8 ADC 963 Order I, Rule 10- Addition of party as a defendant- If upon taking evidence it is found that Abdul Quddus is son of Abdur Rahim, then it will be up to the plaintiff to amend the plaint accordingly. If it is found that Abdul Quddus is son of Abdun Nur, then the applicant is a different person to the one named in the plaint. In that case his name may be added as a defendant if he can satisfy the Court that he is a necessary party under Order I, Rule 10 of the Code of Civil Procedure. Civil petition for leave to appeal is disposed of. ...Abdul Quddus =VS= Joygunnessa, [6 LM (AD) 267] Order I, rule 10(2)- Though there is no clear provision mentioning the word 'transposition' but order I rule 10(2) of the Code of Civil Procedure enables the courts to make such transposition, Order I rule 10(2) has empowered the courts to strike out name of any party, either plaintiff or defendant, improperly joined and also to add any persons-either as plaintiff or defendant-who ought to have been joined whether as plaintiff or defendant or whose presence before the court may be necessary for effectual and complete adjudication of the matter. Exercising this very power the courts can make transposition also of either of the parties of a suit or other proceeding to the other category of the parties and the courts also are doing so, and it has become a long practice now. Of course, generally, the courts will not allow transposition of defendants as plaintiffs after striking the names of the original plaintiffs or after transposing them as defendants. But in appropriate facts and circumstances-as these are in the present case-the courts should not be reluctant to make such transposition of the parties for the ends of justice or to prevent abuse of the process of the court. Mrs. Ruksana Huq & others =VS= A. K. Fayazul Huq & others, [1 LM (AD) 452] Order 1, Rule 10(2) Rejecting application filed by the petitioners praying for adding them as parties (1) Kazi Naimul Huq vs. Md. Abdus Sattar Bhuiyan (Md. Tajazzul Islam J) (Civil) 5ADC 605 Order 1, Rule 10 Order 22 Rule 9 The application for setting aside the abatement was filed within 14 days of the order recording abatement but the High Court Division erroneously found that the application was filed after 7 months. Furthermore the High Court Division failed to notice that the application of the respondent for her addition had not been dismissed by the learned Assistant Judge but was ordered to be put up in the suit itself after restoration. Md. Badruzzaman vs Begum Shamima Naz Siddique (Bimalendu Bikash Roy Choudhury J)(Civil) 2ADC 331 Person means a juristic person . A suit not filed by a juristic person would not be competent. [ 1991 CLC 1601 ] The word " parties " in legal parlance is invariably taken to mean plaintiffs and defendants. [1990 CLC 1196 ] The rule merely provides a procedure and has nothing to do with payment of court - fees . Hence although under this rule several persons may join as plaintiffs in the same suit , court - fees may have to be paid under the Court Fees Act as if separate suits were brought . [ AIR 1935 Cal . 573 ] The decree would be binding upon the profonna defendants though passed in their absence- The plaintiff and the PDB though a proforma defendant , fought out the suit clearly understanding the issues and the claim they were making against each other. [ 40 DLR 340 ] Defect of Party Impleading of a nationalised company placed under a corporation whether constitutes defect of party - Defendant No. 1 is a nationalised company placed under a corporation renamed as Bangladesh Steel and Engineering Corporation . The company has not thereby lost its legal entity as a juristic person . It can sue and be sued without the corporation which controls the defendant company under Persident's Order 27 of 1972 and , as such , the suit in question could proceed against the defendant No. 1 without impleading the corporation . [ Progati Industries Ltd. Vs. Shahida Khatun , 43 DLR 29 ] Representative Suit Object The object with which this provision was enacted is to facilitate decisions on questions in which a larger body of persons are interested without recourse to the ordinary procedure where each individual has to maintain action by separate suit . [ Government of Bangladesh Vs. Mirpur Semipucca ( Tin - shed ) Kalayan Samity and others , 54 DLR 364 ] Representative Suit A decree passed in a representative suit enures to the benefit of or binds all the persons represented in the suit . [ Government of Bangladesh Vs. Mirpur Semipucca ( Tin - shed ) Kalayan Samity and others , 44 DLR 364 ] Representative Suit In the absence of the necessary leave , the suit cannot assume the character of a representative suit. [Government of Bangladesh Vs. Mirpur Semipucca ( Tin - shed ) Kalayan Samiry & others , 54 DLR 364 ] Provisions not mandatory : Since in the instant case the High Court Division discharged the Rule holding that the learned Senior Assistant Judge exercised his discretion in granting time to the defendant for filing written statement rejecting the application of the plaintiff for fixing the suit for ex parte hearing and the said discretion does not appear to have been exercised arbitrarily and capriciously and further since in 47 DLR ( AD ) 136 it has been held that the provisions of amended Order VIII , rule 1 is directory and not mandatory and Order I , rule 8 of the Code of Civil Procedure allowed the Court to give appropriate relief , we are of the view that the High Court Division did not commit any error in discharging the Rule . Further , since the High Court Division , on proper appreciation of the materials on record and applying the correct principle of law as applicable in present case , arrived at the correct decision , there is no cogent reason to interfere with the same . ( Khan Md Firoj Kabir Vs. Rupali Bank Lid ( Civil ) 206 , 59 DLR 2007 ] Since objection as to non - joinder or mis - joinder of parties was not taken at the possible opportunity such objection cannot be taken subsequently and such right of the defenddent shall be deemed to have been waived . Order 1 , Rule 9 of the Code of Civil Procedure provides that no suit shall be defeated by reason of mis - joinder or non - joinder of non - joinder of parties and Rule 13 of the said Order provides that all the objections on grounds of non - joinder or mis - joinder shall be taken at the earliest possible opportunity and any such objection not so taken shall deemed to have been waived . Ali Azam Saial vs Joynal Abedin Saial ( Civil ) 299 , 61 DLR 2009 ] Order 1 rule 9 of the Code of Civil Procedure is applicable in case of nonjoinder of necessary parties in the application for pre - emption in view of section 141 of the Code of Civil Procedure . Section 96 ( 2 ) of the said Act creates obligation on the part of the pre - emptor to make co - sharer tenants in the disputed holding as parties to the pre - emption application . ( Abdus Satter and others Vs. Abdur Noor and others , 49 DLR 414 ] In spite of the Government being not joined as a party in the suit , the Courts below dealt with the matter of controversy so far as regards the right and interest of both the parties and , as such , by mere non joinder of the Government the suit cannot be defeated . [ Abdul Quayuam Khan Vs. Abu Yusuf Mridha , 51 DLR 386 ] The High Court Division on the point of nonjoinder of the parties has correctly held that the purchasers of the part of the suit property being the transferees of the defendant No. 1 , will stand or ( all along with the defendant No. I and so Their absence the right , title and interest of the parties may be effectively disposed off . [ Ruhul Amin vs Official Liquidator . Mahalaxmi Bank Ltd ( Civil ) 1 , 14 BLC 2009 ) Since the applicants shall stand or tall along with the writ - petitioners , their presence as party Nos . 6-10 are not necessary for the determination of the real matter in dispute between the parties . [ Chairman , Rajdhani Unnuyan Karlripakkha ( RAJUK ) Vs A Rouf Chowdhury ( Civil ) 28 , 61 DLR 2009 ] Addition of party The Court for effective and effectual adjudication of any legal proceeding before any Court including the Revisional Court can add a party in that proceeding . It is not at all necessary that some relief mast have been claimed in a proceeding against the party which is joined in the proceeding as a party. [Tabibullah vs Bangladesh ( Civil ) 46 , 61 DLR 2009 ] As soon as the letters of credit are established between the issuing bank and the negotiating bank , it becomes an independent agreement between the two banks , neither the seller nor the buyer has any privity to that agreement . So the presence of the petitioner is not necessary for proper adjudication of the suit . [ Zyta Garments Ltd. Vs. Union Bank Ltd. and another , 55 DLR ( AD ) 50] If somebody comes before the court with an application that the whole transaction was forged , and cooked up for the suit with a view to grab the suit property and that the alleged vendor died long before the contract , his presence , it is difficult to say , would not be of any assistance to the court for adjudication of the issues. (Abdul Mannan ( Md ) Vs. Swaraj Roy and ors , 54 DLR 352 ] As soon as the letters of credit are established between the issuing bank and the negotiating bank , it becomes an independent agreement between the two banks , neither the seller nor the buyer has any privity to that agreement . So the presence of the petitioner is not necessary for proper adjudication of the suit. [Zyta Garments Ltd. Vs. Union Bank Ltd. and another , 55 DLR ( AD ) 56 ] If somebody comes before the court with an application that the whole transaction was forged , and cooked up for the suit with a view to grab the suit property and that the alleged vendor died long before the contract , his presence , it is difficult to say , would not be of any assistance to the court for adjudication of the issues . [Abdul Mannan ( Md ) Vs. Swaraj Roy and ors , 54 DLR 352] The court has ample power to treat an application filed under Order I rule 10 CPC as an application under Order XXII rule 10 CPC . Mentioning of a wrong provision of law is no ground for rejection of the application if the substance of the application discloses ingredients of passing appropriate order . [ Abu Taher Bhuiyan Vs. Lal Mohon Mondal and others , 54 DLR 604 ] Since the applicants shall stand or fall along with the writ petitioners , their presence as party Nons . 6 are not necessary for the determination of the real matter in dispute between the parties. [Chairman Rajdhanit Unnayan Kartipakkha ( RAJUK ) Vs. A Rouf Chowdhury ( Civil ) , 61 , DLR , 2009 ] Addition of a subsequent transferee would not prejudice the plaintiff rather it would help him to get possession of the suit holding . ( Akram Hossain ( Md ) Vs .. Sahera Khatun ( Civil ) 640 , 57 DLR 2005 ] As the petitioner had no right and title to the property he was not a necessary party to the suit for eviction of the monthly tenant . ( Abdur Rahim ( Md ) Vs. Bengal Bricks Industries Ltd and anr ( Civil ) 185 , 58 DLR 2006 ] The plaintiff No. 9 has not taken any exception to the matter of figuring of plaintiff No.3 as the PW 1 for all the plaintiffs in the suit . In that state of the matter , defendants have no occasion to take exception as to the matter of deposing by plaintiff No.3 in support of the plaintiffs , including plaintiff No. 9. [ Kazi Md Abdul Kuddus Vs. Kaimon Bewa ( Civil ) 87 , 59 DLR 2007 ] The plaintiff No. 9 has not taken any exception to the matter of figuring of plaintiff No.3 as the PW 1 for all the plaintiffs in the suit . In that state of the matter , defendants have no occasion to take exception as to the matter of deposing by plaintiff No.3 in support of the plaintiffs , including plaintiff No. 9. [Kazi Md Abdul Kuddus vs Kaimon Bewa ( Civil ) 87. ] Where plea of non - joinder of parties was not taken in written statement of defendant , therefore , no issue was framed thereon . No suit , however would fail for non - joinder of any person against whom no relief was prayed. [NLR 1996 UC 217 ] The rule applies to non - joinder of parties in suits , appeals and to references to arbitration . ( AIR 1914 Cal . 497 ( UB ) ] Where all objection is taken at the proper time the Court is bound to adjudicate upon it , and the decision in this matter is binding on parties till it is set aside. ( AIR 1956 Cal . 577 ( DB ) ] Code of Civil Procedure [V of 1908] Order 1 Rule 10(2) read with Section 151 The parties who aggrieved to file revisional application under section 151 of the Code of Civil Procedure. The trial court became funtus-officio has nо jurisdiction to revoke the earlier order passed the impugned order recalling the earlier order is illegal and the same should be interfered without. It appears to the High Court Division that the trial court earlier on 08.04.2008 allowed the application filed under Order 1 Rule 10(2) of the Code of Civil Procedure. But subsequently on an application under section 151 of the Code of Civil procedure the trial court recalled the earlier order. Whereas the provision is that the parties who aggrieved to file revisional application under section 151 of the Code of Civil Procedure. Considering the facts it is the High Court Division view that trial court became funtus-officio has no jurisdiction to revoke the earlier order passed the impugned order recalling the earlier order is illegal and the same should be interfered without. Considering the facts and circumstances of the case and the discussions made above, the High Court Division finds merit in the Rule. In the result, the Rule is made absolute. Rahim Afrooz Bangladeh Limited and another- Vs. Amin Mohammad lands Development Ltd. and others. (Civil) 23 ALR (HCD) 23 Code of Civil Procedure [V of 1908] Order 1 Rule 10(2)-Addition of party Whether the High Court Division has committed any error in not considering that the applicant had been debarred by the judgment and decree of Other Class Suit being No. 79 of 1983 as he was the defendant in the earlier suit. Whether the applicant is a proper party in the suit or the applicant is debarred from filing the application for addition of party? The Appellate Division observed that on perusal of the plaint of the suit and the pleadings of the parties it is clearly divulged that in the instant suit parties are not same. The suit properties are not same and the reliefs claimed in the present suit are not similar, rather, squarely distinct and separate. In the facts and circumstances of the present case it appears that in earlier Suit No. 79 of 1983 the issues had been framed and decided are separate and distinct of which would not to be adjudicated in the present suit. Rather, in the instant suit as per pleadings of the parties distinct and separate issues would be framed and decided. The Appellate Division is, therefore, of the considered view that the objection raised by the plaintiff appellant does not attract any of conditions of the principles of resjudicata mentioned herein above. The question of resjudicata cannot be decided by dint of objection raised in the application for addition of party without framing issues at the time of trial. Reliance may be placed to the case of Sreemoti Puspa Rani and another Vs. A.K.M. Habibur Rahman and others, reported in XIII BLD (1993) (AD) 217. The Appellate Division is, therefore, of the view that the High Court Division committed no illegality in passing the impugned judgment and order which does not call for any interference by the Appellate Division. Regard being had and discussions made above, the Appellate Division finds no merit in the appeal. Accordingly, the appeal is dismissed. Mohammad Nurul Haque and another Vs.- Md. Nurul Haque and others (Civil) 22 ALR (AD) 162 Code of Civil Procedure [V of 1908] Order 1, Rule 10-A partition suit does not come to an end with the passing of preliminary decree and continues till the final decree is passed and an application can be made for amendment of the plaint if an event changing the shares of the parties occurs or parties may be added after preliminary decree and their rights adjusted in the final decree. The High Court Division is of the view that in order to avoid multiplicity of suits the opposite party Nos. 1-4 should have given an opportunity to be added as party. Admittedly they did not prefer any appeal. If the trial Court finds that the opposite party Nos. 1-4 have share in the suit land, they will get their due saham without disturbing the preliminary decree. The learned Senior Assistant Judge without applying his judicial mind dismissed the petition by a slipshod order. After considering the facts and circumstances of the aforesaid case, learned District Judge rightly allowed the Revisional application, therefore, there is no apparent reason to interfere with the same. For the reasons stated above the Rule is hereby discharged. Sakina Bibi and others Vs. Sakhina Begum and others (Civil) 18 ALR (HCD) 227-228 Order II Rule 17 The principle is that the nature and character of a suit do not change so long as the fundamental character of the suit remains the same. A suit for declaration of title, recovery of possession and/or for partition is essentially based on a common claim of the plaintiff which may call for aforesaid different relief or reliefs in different situations. Abdul Motaleb vs Md. Ershad Ali (A.T.M. Afzal J) (Civil) 2ADC 30 Order 2 , r 1-3 The plaintiff is obliged to frame his suit as far as practicable so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. [ PLD 1953 Lah . 131 ; PLR 1953 Lah . 341 ] Frame of suit - Presence of necessary party - The suit having been brought for declaring and setting aside an order passed by the Board of Intermediate and Secondary Education , Jessore and for mandatory injunction for publication of a particular result , the Board is the appropriate authority which is the nece - ssary party in the suit . The suit is bad for non - joinder of the Board as a party. Therefore, the suit is not properly constituted and the Courts below committed an illegality in decreeing the same. [ 44 DLR 36 ] Order 3 , r 1-3 Authority is required only where a person is to do an act which a party has to do in Court . Where an Advocate acted just as a witness of identification and to witness a transaction no written authority was necessary. ( 1988 CIC 2456 ] This Order and the rules have no application in the matter of signature on the plaint because it is not an act in or to a Court . A plaint can be signed outside the Court . ( Anath Bandhu Guha & Sons Ltd. Vs. Babu Sudhangshu Shekhar Halder , 42 DLR ( AD ) 244 ) Provisions of Order III rule 2 empowers , amongst others , a duly constituted attorney to make appearance , applications , and / or to do acts for and on behalf of such absent party . ( Shah Alam ( Md ) Vs. Abul Kalam and others , 54 DLR 276 ] Order III, rules 2(a) The provisions of rule 2(a) of Order 3 of the Code does not apply where the plaintiffs themselves have described the defendant- appellant as the "i" (i.e. executant or agent) of the defendant No. 1-appellant. Moreover, the plaintiff cannot take advantage of his own conduct and is estoppels to deny his own description and admission of Motiur Rahman Howlader as the 'Karjokarok' of his brother, defendant No. 1 (who was then staying at abroad). 73 DLR (2021) 290 rule 2 ( a ) Power of attorney must be executed according to the provision of section 85 of the Act otherwise a person holding a power of attorney is not legally permitted to represent his principal under Order III rule 2 ( a ) of the Code . ( Ramesh Chandra Chowdhury Das Vs. Naresh Chandra Das Chowdhury , 52 DLR 227 ] Order III rule 4 ( 1 ) & Order VII rule 11 Power - of - Attorney Defect and disability When the power of attorney fails the embargo that follows will fall upon the lawyer and not on prosecution of suit by the principal . The disability attaches to the lawyer and not to the plaint . Court is to fix a date for steps to be taken by plaintiff when he may appear himself or by another recognised agent or by the same attorney after curing the defect . SSC Judge wrongly held that due to defect in power of attorney there was no cause of action for the suit , for it is theprincipal who has cause of action for the suit . Plaint can be rejected only when on the averments the plaintiffs is found not to have cause of action . Without rejecting the plaint the court has a clear duty to fix a date for the plaintiff to take steps . [ Anath Bandhu Guha & Sons Ltd. Vs. Babu Sudhangshu Shekar Halder , 42 DLR ( AD ) 244 ] Orders III - IV rule 1 , Order VI rules 2 , 14 and 15 , Order VII rule 11 The rule does not specifically pinpoint as to who shall present the plaint . Plaint need not be presented by the plaintiff personally or by a person duly authorised by him by power of attorney . If a plaint is not properly signed or verified or presented , the court has always the discretion to allow the plaintiff to cure the defects at a later stage . These are defects of technical nature relating to matters of procedure curable at any time . Order VII rule Il is not at all attracted when there are defects in complying with the provisions of Order II or Order 6. ( Anath Bandhu Guha & Sons Ltd. Vs. Babu Sudhangshu , Shekhar Halder , 42 DLR ( AD ) 244 ] Order III, Rule 4(2) - The vokalatnama remains valid unless cancelled with the leave of the Court by the client or Advocate or until the client or the Advocate dies or until all proceedings in the suit are ended so far as regards the client. As soon as the all proceedings under Order IX Rule 13 came to an end, all proceedings in relation to the pre-emption case shall be deemed to have come to an end and the vokalatnama executed by the pre-emptor shall be deemed to have been terminated or lost its efficacy according to sub-rule (2) of Rule 4 of Order III of the Code of Civil Procedure. ... Ibrahim Khalique @ Ibrahim Salik =VS= Ayesha Bibi, [8 LM (AD) 156] Order IV rule 1 ( b ) & Order V rule 2 Copy of the plaint is an integral part of the summons . To constitute a summons within the meaning of the provisions of the Code plaint must be accompanied with the summons either it be served by the process server or by registered post . [ Mohammadullah and others Vs. Md Shamsul A lam alias Md Alam , 55 DLR 428 ] The date of institution of the suit is the date on which the plaint is presented to a proper Court. ( AIR 1956 Pun. 30 ] The plaint has to be presented in the Court of the lowest grade competent to try the matter under Ss . 15 to 20. [ AIR 1929 Mad . 29 ] Order V rule 1 - Petitioner entered appearance in the suit by filing a vokalatnama and filed written objection in the injunction matter but subsequently he did not file any written statement in the suit and consequently the ex parte decree was passed . The petitioner's plea that summons was not served upon him is not tenable at all . [ Jalaluddin ( Md ) and others Vs. Laily Begum and others , 48 DLR ( AD ) 163 ) The provisions of Order 5 , R. 1 do no apply to proceedings under Frontier Crimes Regulation , Section 8 , and a summons issued under this provision by an Assistant Political Officer before whom a civil dispute is pending is without lawful authority. [ PLD 1968 SC 131 ] Order V, rule 19B(2) The learned Assistant Judge did not give any finding regarding the service of summonses upon the pre-emptee- petitioners through post within the meaning of Order V, rule 19B(2) of the Code which is again fundamentally a question of fact. Be that as it may, PW1 in his evidence categorically denied the fact of service of summonses of the case upon them through post. The learned Judge of the single Bench considered the fact that "the acknowledgement of the postal service were not returned" and disbelieved the service of summonses upon the pre-emptee-petitioners through post with the finding that "The postal service of the said notices upon the opposite parties after expiry of 30 days from the date of issuance has got presumptive value but there from (sic) it is very difficult to conclude concretely that those notices were duly served." When the pre-emptor failed to prove the service of summonses of the case upon the pre-emptee-petitioners through usual way as found by the learned Judge of the single Bench, it is not safe to rely upon the statutory presumption of serv- ice of summonses through post in the absence of the acknowledgement receipt, particularly when the learned Assistant Judge did not give any finding on the question. Moreso, the pre-emptor as PW1 did not at all claim service of summonses of the case upon the pre- emptee-petitioners though post. Md. Asgar Ali vs. Md. Shahidul Islam P.K (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 298 Order 5 Rule 20 By practicing fraud upon the Court by showing false report as to service of summons and on the basis of a forged karfa created in the name of a dead per- son. The plaintiff claimed the suit land by inheritance and possession thereon. Riaz Uddin Ahmed vs. Khondakar Khorshed Ali (S. K. Sinha J) (Civil) 7 ADC 392 Section 115(2), 115(4), Order 5, Rule 20 Partition of their ancestral property, Hazi Salahuddin and others vs. Zinnatan Nesa and others (Syed J.R. Mudassir Husain CJ (Civil) 4 ADC 882 Order 5, r 18-19B Service effected on adult member of defendant's family in absence of defendant from his residence , when the service of summons is sought to be effected . In order to prove service of summons as per provision contained in Order V , rule 15 of the Code of Civil Procedure two conditions must be satisfied : ( 1 ) absence must be from residence : ( 2 ) if defendant is not found at his residence and there is no agent empowered to accept summons an enquiry has to be made to find out absentee defendant's adult male member residing with defendant and in process server's affidavit , these facts must be stated . Since process server concerned has not been examined nor service return of the summons been made exhibit , question whether aforesaid conditions stand satisfied or not does not arise for consideration . There is absolutely no evidence to show that Kasimuddin on whom the summons meant for opposite party defendant No. 20 was served , happens to be the male member of the opposite party's family and residing with him . [ Osiruddin Mandal Vs. Azizur Rahman , 39 DLR 403 ] It is the duty of the process - server to take pains to find out the person to be served and for this purpose the should make inquiries not only of the relations of the defendant but also of the neighbours . [ AIR 1921 Cal . 638 ] Where the defendant or the respondent challenge the correctness of the service of summons or notices , it is the defendant or the respondent ns the case may be , who has to rebut the presumption of service by adducing evidence to the effect that the same was not sent to the correct address or it was never tendered to him or there was no reason for him to refuse to accept the same . [ Abdur Rob Mollah Vs. Snhabuddin Ahmed and other 319-329 , 13 MLR 2008 ] To constitute a summons a copy of the plaint must be accompanied with it. Mohammadullah va Shamsul. 2003 BLD 414: 55 DLR 428. After the plaintiff is adjudged a pauper and the suit is registered, a summons must be served upon the defendant without which a decree passed ex parte is illegal. Punjab vs Kanwar, 10 DLR (SC) 144. But when a defendant entered appearance in the suit by a vokalatnama and filed written objection in the injunction matter, and subsequently on his failure to file written statement the suit was decreed ex parte, he cannot take the plea that the summons was not served upon him. Jalal vs Laily 48 DLR (AD) 163, but the defendant has a right to a prior notice of hearing of the application for amendment of the plant filed on the date for er parte heating and a further right to a date for filing written objection against such a prayer. Habib vs Abdul. 2001 BLD 227 6 BLC 594. Court may require personal attendance of either of the parties where it sees reason. Danish vs Sakina 4 BLC (AD) 68. Panchanan vs Himangshu 4 BLC 556. When a notice is served by way of summons issued by the court the authority issuing the notice has to prove that the service had been effected in accordance with the provisions of rule. 12. R. vs Commissioner 7 DLR 387. The procedure provi-ded for serving summons is not to be whittled down by imparting the concept of "substantial com pliance. Bangladesh vs Chand. 44 DLR (AD) 98. The agent's authority to accept summons must be in writing. Hazari vs Daiba. 26 DLR 3. A notice on a corporation may be served on the Secretary or on the Director or other principal officer at the Registered Office. But service by hanging the notice on the outer dwelling of the Manager-in-charge is no service. Mahalaxmi Bank vs Mohammad. 20 DLR 983. A person who does not reside within the local jurisdiction of the court will be bound by the service of notice on his manager or agent. Commissioner vs Idris. 19 DLR (SC) 170. The peon's statement in the returns that finding the defendant absent and he being in Dhaka for business he served the notice on his brother as agent is not a proper service. Emdad vs Habib, 21 DLR 747; or in another case on the res pondent's mother since she was not his authorised agent. Abdur vs Shahabuddin, 12 BLC (AD) 118, Rule 15 requires that there must be definite state-ment in the process server's report that the relation who received summons in the absence of the defendant happens to be the male member of his family and residing with him. Osir va Aziz. 39 DLR 403. Service by hanging on the door of the defendant's shop without complying with rules 15 and 17 is not a proper service. Matiur vs Ekram. 13 DLR 125. The affixation of the copy on the outer door is not an idle ceremony. Under rule 17, the affixation itself is the service or at least the most essential part of the service. Arshad vs Montaz. 12 BLD 292: 45 DLR 164. Service of summons without making diligent enquiry as to whereabout of the defendant is not a due service. Mobarak vs Allarakha. 23 DER INV What constitutes due and reasonable diligence depends on the facts and circumstances of each case; but the temporary absence of a defendant from his residence or place of business does not justify service by affixation. Ibrahim vs Surendra 9 DLR 16. The rule for service by affixation is not applicable where the summons to be served upon a purdanashin woman and is present in her house. District Board va Sarafat. 3 DLR 317 When the process server returns the summons with a declaration that he served the summons by hanging in the presence of witnesses, it cannot justify the recording in the ordersheet as a matter of routine "summons duly served". Rule 19A can-not be read to take away the responsibility of the court as provided in rule 19. In this case the serving officer made a declaration that he went to the house of the defendant who refused to receive the summons whereupon it was served by affixing in presence of the witnesses. It was held, non-exa-mination of the serving officer is not fatal, but where there is no such declaration, examination of the serving officer is mandatory. Santosh vs M. 36 DLR (AD) 248: 3 BLD (AD) 59, examination of process-server is not mandatory when he has made a declaration, which shall be received as evidence of the fact as to the service or attempted service of the summons. Shamsun vs Salauddin. 4 BLC (AD) 285, but it is mandatory when he has not made such declaration. Khurshid vs Jamil. 6 BLD (AD) 83; Rezia vs Delwar 4 BLD 192: 36 DLR 439, Sharif vs Jharna 14 BLD 257 and decla-ration will be unsatisfactory when names and addresses of mokabila witnesses are not stated. Upendra vs Sufia. 10 BLD (AD) 194: 42 DLR (AD) 285, but in another case the process seserver made the declaration that the service by affixing was made upon the defendant on the identification of the witnesses and that implies that the process server did not know the defendant. It was held in the fact of the denial by the defendant the evidence of the process server not corroborated by those witnesses who identified the defendant is not sufficient to accept the service as valid. Abdul vs Kalipada. 41 DLR 170: 9 BLD 7. (see last sen-tence in the comment above). Summonses on several defendants were served by hanging, the court should have made an enquiry for its satis faction. Shaif vs Jharna. 47 DLR 307: 14 BLBLD 257; and it is requirement of law on the part of the trial court to examine the process server on cath. Abdul va Sheikh 1 BLC (AD) 41. Haider vs Abdul, 49 DLR 251 16 BLD 316. A summons sent by registered post and retur-ned with the endorsement "refused" is a good and valid service. Shahab va Abdu. 52 DLR 305. Summons sent by registered post with acknow-ledgment receipt due would be considered duly served even if acknowledgment is lost or mislaid or not received by the Court. Abdur vs Shahab-uddin 12 BLC (AD) 118. Where personal service or service on a male member of the family is not possible, leave of the court should be taken to effect substituted service. District Board vs Sarafat. 3 DLR 317. When the mandatory requirements, i.e. affixing a copy of the summon in a conspicuous part of the court-house and at some conspicuous place of the last known residence of the defendant (obviously for wide publicity) are not complied with, then there was no proper service of summons. China vs Abdu. 15 BLD 5. Notice is to be hung on a conspicuous part of the house in which the defendant is known to have last resided, but in the instant case it was hung on a tree within the suit land which cannot be a part of the house. Noorjahan vs Tarifuddin. 58 DL.R 326. An application for substituted service cannot be rejected if it is not supported by an affidavit as only verification is required under the law. Golap vs Modaddas. 2 BLC 68. In a proper case there may be substituted service by proclamation in newspapers of long standing Mir vs Pir. AIR 1930 Lah 397. Rule 5 and 6 Order XXXVIII Passed by the High Court Division in Civil Revision No.3067 of 2000 disposing of the Rule giving direction upon the appellant to take immediate steps to release two double Decker buses on payment of all duties and taxes and to sell and to keep out of the sale proceeds of TK.43,00,000.00 in fixed deposit to the credit of the trial Court till final de- cision of the suit. Dhaka Bank Limited vs. Monir Hossain (Mohammad Fazlul Karim J) (Civil) 6 ADC 402 Order 5, 41, Rule 19B, 21, Sub-Rule 2 The respondent opposite party No.1 failed to discharge his onus that inspite of issuing the summons through regis- tered post with acknowledgement due, as required under Sub-Rule 2 of the Rule 19B of Order V of the Code of Civil Procedure. Whether the summons which was sent to the appellant herein, who was Respondent No.2 in Miscellaneous Appeal No.7 of 1989, by registered post with acknowledgement due and that return of the envelope by the postal peon with the endorsement "refused" was a good service in the eye of law or in other words when summons is sent by registered post with acknowledgement due and the postal peon returns the envelope with the endorsement "refused" it shall be considered that the summons was duly served on the addressee. If a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed and that presumption would apply with still greater force to letters which the sender has taken the precaution to register. and is not rebutted but strengthened by the fact that a receipt for the letter is produced signed on behalf of the addressee by some person other than the addressee himself. As a general rule the Court will assume, unless the contrary is proved, that letters which are proved to have been mailed do arrive in ordinary course of post, and it is on those who dispute that inference to show the contrary. When the summons is sent by registered post from the Court and if the postal peon returned the envelope in which the summons was sent to the defendant/respondent with the endorsement "refused" and if it is not established by the addressee, that the address to which the summons was sent was not his address or that postal peon did not tender the register envelope to him and as such he had no occasion to refuse the acceptance thereof, then it shall be considered that the summons has been duly served on the addressee. So letter sent, notice or summons sent by registered post and if returned with the endorsement 'refused' shall be accepted as good and due service of notice of summons and the delivery of the letter to the person addressed unless the addressee rebut the presumption of good service of delivery of letter by adducing evidence. Abdur Rob Mollah vs. Shahabuddin Ahmed and others (Md. Ruhul Amin J) (Civil) 4 ADC 161 The summons are issued to inform the defendant of institution of suit in sufficient time before the date fixed for hearing and the procedure laid down for service of summons is aimed to guard against fraud and ensure that the proper person has been served and apprised of claim against him contained in the lis instituted in the Court. [PLJ 1990 Lah. 274] It is the substance and not the form of the plaint which is to be looked at and considered and Mufussil Court's pleadings arc to be construed liberally. [Madhu Sudan Malakar vs Jobed Ali 127, 61 DLR 20097. It is the substance and not the form of the plaint which is to be looked and considered and Mufussil Court's pleadings are to be construed liberally. (Zamir Uddin Ahmed Vs. Aiaul Huq and others, 49 DLR 622. Order VI rules 1& 2 and Order VIl rule 1-The purpose of pleadings is to pinpoint the matters of controversy between the contending parties for enabling them to meet their respective claims. If at the trial the plaintiff fails to prove some of his allegations, that does not necessarily mean that the suit shall fail. The fate of the suit depends on the overall evidence and materials on record. /Sonali Bank Vs. Hare Krishna Das and others 49 DLR 282] Order 6, Rule 4 For mandatory injunction directing the defendants to execute and register the sale deed. The Court inspite of the absence of the pleading of the defendant as to the non- genuineness of the document of the plaintiff is quite competent to make its decision on the basis of the result obtained upon scrutiny of the document When the plaintiff is seeking relief on the basis of certain document/documents as to which from the defendant's side no allegation of mis-representation, fraud, breach of trust, wilful default or under influence has been alleged, but the Court of arriving at the decision as to the relief sought in the suit either in the affirmative or in the negative while scrutinizing the document on the basis of which relief has been sought in the suit and in the course of such scruting noticed the fact which makes the docu- ment/documents, which is/are the basic document (s) of the plaintiff, non-genuine or in other words fabricated by dis- missing the suit, in such state of the matter, in our view, finding arrived at the decisions made by the Court would not be unsustainable. Government of the People's Republic of Bangladesh represented by the Deputy Commissioner, Rajshahi and others vs. Md. Abdul Jabbar Sheikh (Md. Ruhul Amin J) (Civil) 4 ADC 182 Pre-emption Case to pre-empt are co- sharers in the disputed jote by inheritance along with others. The learned Counsel appearing on behalf of the leave petitioner contends that the Single Bench of the High Court Division committed error of law in not holding that pre-emptor petitioner No. is estopped by her own conduct as she herself negotiated the sale of the suit land to the leave petitioner, as such being aware of the transaction she can- not claim pre-emption of the disputed land. In such view of the matter the pre- emption case is barred by principle of waiver, acquiescence and estoppel. Md. Tofazzal Haq Chowdhury vs. Rajaberanessa and others (Mohammad Fazlul Karim J) (Civil) 4 ADC 190 Order VI, Rule 4- A general allegation of collusion implying some kind of fraud is not enough without particulars. Specific pleadings in support of fraud or collusion as per Order 6 Rule 4 are required to be made and those allegations of fraud and collusion must be substantially proved by the party making them....Alimuzzaman (Reza) (Md.) -VS- Masudar Rahman(Md.) @Babul, [8 LM (AD) 164] Order VI rule 2, Order XVIll rule 17 The Code has given enabling power to the Court to recall a witness. All the evidence and documents under the possession of the plaintiff to be relied upon at the time of hearing of the suit need not be mentioned in the pleading [Registrar (Deputy Secretary) Vs. Sahrab Jan and others, 48 DLR 214. The object of pleadings is lo bring parties to definite issues and to prevent surprise at the hearing. Ayesha Khatun and others Vs. Rabindra Chandra Saha and others (Civil) 641, 58 DLR 2006] The object of the provision of Order VI, rule 4 of the Code of Civil Procedure is, that the opponent against whom one or more than one of the allegations as stated hereinbefore while made is not taken by surprise when he at the trial contests the claim of the party who is alleging the one or more than one of the aforementioned situations against his opponent is seeking the relief. The law requires the parties who make the one or more than one of the aforesaid allegations against his opponent to give the particulars since the particulars thereof is known to him. [Bangladesh represented by the Deputy Commissioner vs Md Abdul Jabbar Sheikh (Civil) 105, 59 DLR 2007] contradictory to the stand taken in the earlier written statement filed on 30.03.1997. It was contended that defendant No.1 could have filed an application under Order 6 Rule 5 of the Code of Civil Procedure for filing further and better statement or pray for an amendment of the written statement under Order 6 Rule 17 of the Code but instead the defendant could not file a separate and independent written state- ment with the averments which were contradictory to the earlier written state- ment. Therefore the subsequent written statement was liable to be struck off. "৫ বাদীর আরজির তপসিল বর্নিত নালিশী সম্পত্তি বিবাদী ০৮-০৩৯৯৪ ইং তারিখে একচ্ছত্র মালিক থাকাবস্থায় বাদীপক্ষকে দান করে এবং দখল ও মালিকানা সম্পর্কিত যাবতীয় কাগজ পত্র বুঝাইয়া দেয়। অতঃপর তপসিল সম্পত্তি ভোগ দখল ও খাজনা ট্যাক্স ইত্যাদি প্রদান করা বাদীর একক কাজ ও অধিকার এবং উক্ত অধিকার সংরক্ষন করাও বাদীর একক দায়িত্ব ও কর্তব্য। Abdul Wadud Khan vs. Anwaruzzaman and another (Amirul Kabir Chowdhury J) (Civil) 4 ADC 271 Though the party making the allegations of fraud or forgery of certain documents is required under Order 6 rule 4 of the Code of Civil Procedure, to specifically mention the particulars thereof in his pleading, the court is not precluded from scrutinising such document to ascertain the genuineness or otherwise of the same even if the particulars of forgery are not stated in the pleadings. /Government of the People's Republic of Bangladesh,, represented by the Deputy Commissioner, Rajshahi and others vs Md Abdul Jabbar Sheikh 119- 128, 14 MLR 2009] General allegations in pleadings, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. [1988 SCMR 1703] In suits on the basis of fraud, the allegations of fraud must be clear, definite and specific. The court will not allow either party to make any departure from the earlier pleadings set forth in the plaint or written statement. Bangladesh Vs. Md Aslam, 44 DLR 897. The departure in the evidence from the plaint has not been of such a dimension that the defendants were unfairly taken by surprise. Both the parties had all opportunities to lay before the court a(1 their evidence respecting title and possession of the suit land. In such circumstances the operation of Order VI rule 7 of the Code will not come in. [Kochi Mia & Khocha Mia Vs. Surj Mia being dead his heirs Md. Fazlur Rahman and others, 51 DLR (AD) 57. An application for amendment of the plaint should not be rejected on the ground that the preliminary decree has already been drawn up, and that re-opening of the suit and adducing further evidence will cause inordinate delay in disposal and hardship to the parties. [Hanif Ali (Md) Vs. Hajera Khatun and others, 55 DLR 17] Unnecessary parties and prayers may be struck out by the court from an election petition by an amendment. [ldrish Ali Bhuiyan (Md) Vs. Dr Alauddin Ahmed and ors, 55 DLR 19) An amendment may be just but cannot be allowed if it is not necessary for decision in the suit. [Bamgladesh Shipping Lines Ltd. Vs Commissioner of Customs Chiragong and others, 55 DLR 166] Amendment of plaint seeking to convert the suit of one character into another and to substitute one distinct cause of action into another depriving the other party of his right accrued to him by lapse of time cannot be allowed. [Government of Bangladesh and another Vs. Shafr A Chowdhury and another, 55 DLR 228] Order VI, Rule 7- Evidence beyond pleadings cannot be considered by the Court Rule 7 of Order VI of the Code of Civil Procedure for expunging the statement of the OPWI and excluding exhibit 'kha' from the list of exhibits alleging that those were admitted in evidence though those were beyond the pleadings. It is the settled principle that if any party adduce evidence beyond the pleadings is liable to be ignored. Parties cannot be permitted to lead evidence beyond their pleadings and leading of the evidence beyond the pleadings is unwarranted and conclusion based on such evidence cannot be approved. Normally, evidence beyond pleadings cannot be considered by the Court. ...Agrani Bank Ltd., Dhaka =VS= Md. Abdus Sobhan, [10 LM (AD) 316] Order VI Rule 17- Praying for declaration of title to the property described in 'A' scheduled of the plaint and also for delivery of khas possession of the property described in schedule 'B' of the plaint upon eviction of the defendants and/or persons claiming through them and also for permanent injunction restraining the defendants from making any construction and/or changing the nature and character of the land. Praying for amendment of the plaint stating, inter alia, that due to over sight at the time of filing of the suit the learned lawyer of the plaintiff made some mistakes and as such the plaint should be amended......S.K. Khalilur Rahman =VS= Mrs. Meherun Nesa, [4 LM (AD) 340] Order VI, rule 17- Amendment of the plaint- Mere omission/deletion and insertion of some new facts as indicated hereinbefore, in no way, can be construed to change the nature and character of the plaint or the suit. ...Salahuddin Khan =VS= Md. Abdul Hai Bahar, [8 LM (AD) 133] Order VI, rule 17 r/w sec. 114 & 115- Plaint can be allowed when the proposed amendment will not change the nature of the suit It has been established in a number of cases by the Apex Court of the sub-continent that when there is specific provision in the Code for a matter to be decided a Court should not exercise the inherent power to dispose of the matter. We are of the view that the order dated 11.08.2003 passed by the learned Joint District Judge in recalling its earlier order dated 08.06.2003 on an application under Section 151 of the Code is not tenable in law. The aggrieved party in all fairness should have invoked either review jurisdiction under section 114 or revisional jurisdiction under Section 115 of the Code of Civil Procedure. Therefore the High Court Division has erred in law in not holding that the order dated 11.08.2003 passed by the learned Joint District Judge is not tenable in law and as such by the impugned order dated 11.04.2005 passed by the High Court Division in Civil Revision No.3951 of 2003 Rule would have been made absolute. However amendment of the plaint can be allowed when the proposed amendment will not change the nature, feature and character of the suit. In the instant suit if any party is aggrieved by the order passed by the trial Court, he may seek necessary relief invoking the specific provision of law before the competent Court. The appeal is allowed without any order as to cost and the impugned judgment and order is set aside. ... Harun-or-Rashid =VS= Gulaynoor Bibi, [8 LM (AD) 114] Order VI Rule 17- Amendment of the plaint It is now well-settled that the amendment of the pleadings could be allowed at any stage of the proceedings for the purpose of determining the real question of controversy between the parties, but it could not be allowed, if, it changed the nature and character of the suit, or if the prayer for amendment had became barred by lapse of time and a right had accrued to the other side. That the High Court Division wrongly came to a finding that the proposed amendment would change nature and character of the suit although addition of new fact cannot in any way change the nature and character Therefore, the judgment and order passed by the High Court Division affirming the judgment and order passed by the learned District Judge cannot sustain. Admittedly the suit filed in 2000 is yet to be disposed of by the trial Court. Such being the state of affairs we do not find any point dragging the case before this Division in an interlocutory matter. And the order of trial Court allowing amendment is restored. The trial Court is directed to dispose of the suit as expeditiously as possible. ...Akram Ali Pk.(Md.) VS Yasin Ali(Md.), [9 LM (AD) 373] Order VI, Rule 17- Amendment of the plaint- The amendment seeks to enhance the amount claimed in the plaint. At the end of the trial of the suit, the plaintiff will be entitled to a decree only if he is able to satisfy the Court in respect of his claim and will recover the amount which he is able to prove by adducing satisfactory evidence. The defendants will have every opportunity to disprove or minimise the claim of the plaintiff. Bangladesh Chemical Industries Corporation =VS= M. V. THOR NEXUS, [4 LM (AD) 72] Order VI, Rule 17- Amendment of the plaint- The proposed amendment would not change the nature and character of the suit and it was not a new fact since it was earlier stated in the plaint that Tk.95,000/- was given in cash and Tk.3,00,000/- was paid by cheque. In the amendment petition, only the name of the signatory of the cheque was inserted. So, neither character of the suit is being changed nor any new fact has been incorporated in the amendment petition, and as such the appeal is liable to be dismissed. In the instant case the facts alleged in the plaint indicated that payment was made by cheque as well as by cash, and the amendment simply named the person, who had issued the cheque. Such an amendment in our view does not change the nature and character of the suit. We do not find any illegality or infirmity in the impugned judgement. Accordingly, the appeal is dismissed, without however, any order as to costs. ...Sree Nilu Banerjee =VS= Swapan Sarker, [5 LM (AD) 127] Order VI rule 17 & Order XXIl rule 9 The provisions for amendment of pleading has no bearing in the matter of substitution of legal representative of a deceased party and it is not to be used as subsidiary provision of the Order XXII, Civil Procedure Code as a device to overcome the effect of bar of abatement in the suit. Saleha Khatun and others Vs. Fetema Hajura and others, 52 DLR 437] Addition of a subsequent transferee would not prejudice the plaintiff rather it would help him to get possession of the suit holding. [Akram Hossain (Md) Vs. Sahera Khatun (Civil) 640, 57 DLR 20057. If the material fact is not pleaded, evidence or submission on it cannot he allowed. [Nil Sena Singh Vs. Radha Mohan Singh (Civil) 329, 58 DLR 2006] In a suit for partition ifa prayer for declaration of title is added that can under no stretch of imagination change the nut urn and character of the suit. (4limuddin Vs. Abdull Kabir (Civil) 240, 58 DLR 2006. An amendment if allowed it can take effect from the date of institution of the suit-Therefore a prayer for declaration of title could not be held to be barred by limitation. [Alimuddin Vs. Abdul Kabir (Civil) 240, 58 DLR 2006] The plaintiff wants to change the language of the prayer 3(ka) of the plaint for proper and complete adjudication of the suit. The proposed amendment was explanatory and elucidative of facts already asserted in the plaint. [Nasima Akhter Bomu Vs. Abu Taher Masud (Civil) 370, 58 DLR 2006] The proposed amendment of the written statement and the averments of the additional written statement give completely a new story contrary to the earlier written statement-The opposite party has attempted by the proposed amendment to introduce a new fact with malafide intention by which the nature and character of the suit or the pleading will be changed or altered. Afsal Kham (Md) Vs. Md Azmal Khan (Civil) 43, 59 DLR 2007). Order VII, Rule 11- Section 17A and 17B of the Registration Act shall apply only to the registration of the Bainanama deed, but the plaintiffs have not claimed to have registered deed of sale on the basis of said Bainanama. Therefore, it does not apply to the instant suit; there is no ground to reject the plaint of the plaintiffs. The trial Court rejected the application under Order VII, Rule 11 of the Code of Civil Procedure on the ground that the suit was brought by the plaintiffs only in respect of protecting their possession over the suit land and not for specific performance of contract and hence the provisions of sections 17A and 17B do not apply to the instant suit. ... Kari Moulavi Abdul Gafur VS Mohammad Nurullah, [6 LM (AD) 190] Order VII, rule 11-Government is not bound by the decree passed in a suit for specific performance of contract and, as such, rejection of plaint would not improve the case of the writ- petitioner. The Government can still claim that the disputed property is an abandoned property although a suit by the Government in that respect is barred. Bangladesh vs Md Abdul Mannan (Civil) 71 DLR (AD) 338 Order VII, rule 11-In determining whether a plaint is to be rejected, the Court will take only the plaint and documents filed therewith into consideration and not what has been urged by the defendant in a petition or in the written statement. Executive Engineer, Roads and Highway Department (RHD), Road vs Md Nurul Islam (Civil) 71 DLR (AD) 349 Order VII, rule 11-The decision of the Government to release the property from the "Ka" list of abandoned properties by Gazette has put a final seal on the matter. The abandoned character of the property having been established all the way to this Division and the challenges of the Government as well as the respondent having been unsuccessful, there can be no doubt about the legality of the gazette notification and hence we find that the trial Court rightly rejected the plaint under Order VII, rule 11 of the Code. Javed Alam vs AF Alfajuddin Ahmed 71 DLR (AD) 419 Order VII, rule 11 & Section 151- It is true that the provisions of rule 11 are not exhaustive in the matter of rejection of plaint and in exceptional situation a plaint can be rejected under section 151 of the Code even if it does not come within the mischief of this rule. ...Salahuddin Khan VS Md. Abdul Hai Bahar, [8 LM (AD) 133] Order VII, rule 11 r/w section 151- The trial Court shall be at liberty to decide the issue of maintainability along with the other issues involved in the suit on the evidence to be adduced by the parties at the trial In the plaint clear averment having been made that out of 2.90 acres land from C.S. plot No. 210 of C.S. khatian No. 215, the Government acquired 2.20 acres land and 70 decimals land remained unacquired of which the plaintiffs were the owners, but the Housing Authority illegally created a plot out of the unacquired land as described in schedule 'kha' to the plaint and allotted the same to defendant No. 9 and that, that illegal action of the Housing Authority gave cause of action to the plain-tiffs to file the instant suit, the question of the suit being barred either under the provisions of the Emergency Requisition of property Act, 1948 or the Ordinance, 1982 The National Housing Authority ignoring the case of the plaintiffs that the National Housing Authority illegally erected an industrial plot by encroaching upon the unacquired land of C.S. plot No. 210 as described in schedule 'kha' to the plaint without giving the plaintiffs chance to prove their case by adducing evidence at the trial of the suit. We were taken aback seeing the treatment of the High Court Division of the un-exhibited documents and consideration of the case of the defendants in deciding the merit of the application under Order VII, rule 11 of the Code. And we are constrained to hold that the High Court Division had not the minimum legal acumen as to the scope of interference in revision in deciding the propriety of an order passed by the Court below under Order VII, rule 11 of the Code. The impugned judgment and order of the High Court Division is set aside, the application filed by the defendant Government under Order VII, rule 11 read with section 151 of the Code is hereby rejected. The suit shall proceed in accordance with law. All the adverse comments made by the High Court Division about the maintainability of the suit and the cause of action to file the suit are hereby expunged. The trial Court shall be at liberty to decide the issue of maintainability along with the other issues involved in the suit on the evidence to be adduced by the parties at the trial. The parties are directed to maintain status-quo strictly in respect of the position and the possessions of the suit property till disposal of the suit. ...Abdul Khaleque(Md.) =VS= National Housing Authority, [8 LM (AD) 314] Order 7 rule 11- A plaint of a suit should not be rejected under order 7 rule 11 of the Code of Civil Procedure only on point of res-judicata A plaint of a suit should not be rejected under order 7 rule 11 of the Code of Civil Procedure only on point of res-judicata. But the facts of the present case are quite different. The High Court Division concluded that the present plaintiffs-opposite parties having knowledge about the previous suit and having lost their title up to this Division, instituted the present suit which is nothing but a futile exercise. Having considered the facts and circumstances discussed above, we are of the view that the High Court Division has properly considered the relevant law and facts involved in the case. The decision arrived at does not call for interference by this Division and, accordingly, the civil petition for leave to appeal is dismissed. Sumon Paul =VS= Binode Kumar Mali, [5 LM (AD) 139] Order VII Rule 11- The plaintiff has no cause of action to file the suit. The High Court Division rightly held that the plaintiff had no cause of action for the suit and accordingly rejected the plaint under Order 7 Rule 11 of the Code of Civil Procedure for want of cause of action. We find no cogent reason to interfere with the same. The appeal is dismissed. .....M/S. Samrat Shoes and Leather Manufacturing Industries Ltd. -VS- Md. Zahirul Islam, [5 LM (AD) 426] Order 7 Rule 11 r/w section 151- Maintainability of the application for rejection of the plaint The Appellate Division found that the very nature of the claim that the decree has been obtained by practicing fraud upon the court without impleading the plaintiff presupposes the maintainability of the suit. Its stated that the defendants attempted to get the said decree executed for which the plaintiff are prejudiced seriously and that there are disputed facts which cannot be adjudicated upon without recording any evidence. The High Court Division miserably failed to consider that aspect to the matter and thereby has committed error of law resulting on error in the decision occasioning failure of justice in rejecting the plaint. The judgment of the High Court Division is set aside. The Appellate Division directed the triad Court to dispose of the trial of the suit expeditiously, accordingly the appeal was allowed.......Jahangir Khandaker & others =VS= Mosammat Ayesha & others, [1 LM (AD) 253] Order VII Rule 11(d) r/w section 151- For rejection of the plaint- For declaration that the contract No.315510058 dated 31.01.2011 was illegal, void and the same is not binding upon the plaintiff- High Court Division that the High Court Division found that there was a valid agreement between the plaintiff and defendant wherein an arbitration clause has been stipulated and pursuant to the said agreement an arbitration proceeding has already been commenced before the Arbitration Tribunal at Liverpool. This suit has been instituted subsequent to the arbitration proceeding. The High Court Division held that though written statement has been filed but, in fact, the same can be treated as information to regarding pendency the court of arbitration proceeding before Arbitration Tribunal at Liverpool. We are of the view that the High Court Division rightly disposed of the Rule staying further proceeding of the suit with a direction to settle the dispute in the arbitration proceeding...... Mosharaf Com. Tex. Mills Ltd -VS- ECOM Agro. Corp. Ltd & others, [1 LM (AD) 248] Order VII, rule 11 r/w Section 151- For specific performance of contract- The learned Judges invoked section 151 of the Code, but the inherent power under the section cannot be exercised on assumptions and presumptions of facts and or on suspicion......Md. Noor Hossain & others =VS= Mahbuba Sarwar & others, [1 LM (AD) 341] Order VII, rule 11- Mandatory injunction A Court of law can give mandatory injunction if it is necessary to compel the performance of certain acts which the Court is capable of enforcing and also to compel performance of the requisite acts to prevent the breach of an obligation by the defendant(s) and to get a relief in a suit, the plaintiff must satisfy the Court by producing evidence that the defendants had an obligation to him which they were breaching...... Comprehensive Holdings Ltd. =VS= MH Khan Monju, [3 LM (AD) 198] Order 7 Rule 11 First Appeal rejecting the plaint on an application filed under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure. Sonali Bank represented vs. Meghna Vegetable Oil (Md. Abdul Matin J) (Civil) 7 ADC 644 Order 7 Rule 11 Specific performance of contract by way of re-conveying by the defendants the suit land in his favour on the averments that he was owner of the suit land by way of jote right and while in possession and enjoyment of the suit land he proposed to sell the same and the defendant No.1.......(2) Kohinoor Chowdhury vs. Sree Kamada Ranjan Bhattacharja (Md. Tafazzul Islam J) (Civil) 6 ADC 488 Order 7 Rule 11, Section 151 Praying for declaration of title to the suit land and also for further declaration that the ex-parte judgment and decree dated 13.11.1995 passed in Other Class Suit No. 99 of 1994 is not binding upon them contending. Saleh Ahmed and oth- ers vs. Amena Bewa and others (Md. Abdul Matin J) (Civil) 6 ADC 695 Order VII, Rule 11 The facts of the case, in short, are that the Waqf Administrator, Dhaka by order dated 30.09.2002 appointed Tofazzal Ahmed, Mutawalli Secretary of Waqf Estate and constituted and approved 13 member committee for 5 years. M. To- fazzal Ahmed vs. Jashim uddin Haydar Faruque (Mohammad Fazlul Karim J) (Civil) 6 ADC 250 Order 7, Rule 11 Under section 9 of the Code of Civil Procedure any civil Court has jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. It has to be noticed that there has been no provision for appeal or no forum pro- vided in the Order for redress of genuine grievances of any body or person when injustice is perpetrated on them. It can- not be imagined that such a body or per- son should be precluded from receiving assistance from a court of law. Civil Court is a court of ultimate jurisdiction, and in cases where no other remedy is provided for, the door of the civil court should not be closed and hermetically sealed against one who had been subjected to injustice. Bangladesh Shilpa Rin Sangstha vs. Rahman Textile Mills Limited and ors (Bimalendu Bikash Roy Choudhury J)(Civil) 4 ADC 325 The Civil Procedure Code order 7 rule 11 section 66 Praying for declaration that the plaintiff- respondent Nos. 1-6 have acquired a title by adverse possession in the suit property and also prayed for confirmation of their possession and the respondents also prayed for other consequential re. lieves as mentioned in the plaint. S.M Hossain vs. Lahazuddin (Md. Muzam- mel Hossain J) (Civil) 7 ADC 209 Order 7, Rule 11 Averments having been made in the plaint alleging fraud and malafide and that in the light thereof relief having been sought civil court is quite competent to investigate the question of fraud and malafide and the said allegation as can only finally adjudicate upon full dress hearing of he suit, the High Court Division was in error in rejecting the plaint upon an erroneous view that the suit is barred under section 37 of the PDR Act. Md. Marfat Ali Miah vs Sree Jagadish Chandra Sheel (Civil) 3ADC 476 (Md. R Ruhul Amin J) Order 7, Rule 3 The plaintiffs are out of possession of the land in suit and as such without the prayer for consequential relief the suit seeking simple declaration of title was not maintainable. In that state of the matter it is clear that the plaintiffs have sought for declaration of title in respect of unspecified, vague and undivided land. If the land in suit is vague, unspecified and that relief sought is in respect of undivided portion of land of particular plot(s) in that case suit seeking mere declaration of title is not maintainable. Ershad Ali Howlader died leaving behind the following heirs: Nazrul Islam (Babul) and others vs. Santi Rani Dhupi and others (Md. Ruhul Amin j) (Civil) 3ADC 960 Order 7, Rule 11 Action is bundle of facts and for the ascertainment of the cause of action Court is required to read the plaint in its entirety the plaint does not disclose any cause of action and the learned subordinate judge was wrong not rejected the plaint. High Court Division was not correct in holding that the plaint did not disclose cause of action. Sunder All being dead his heirs. Abdul Hannan v Md. Serajul Islam Sarker (Md. Ruhu Amin, J) (Civil)1 ADC 201 Code of Civil Procedure (V of 1908) Order VII, rule 11 A still born suit should be properly buried at its inception so that no further time is consumed on a fruitless trial and such burial also gives benefit to the plaintiff who then can have a chance to replace his steps at the earliest possible moment so that, if permissible under the law, he may found a properly constituted case......(4.40) [73 DLR 554] Code of Civil Procedure (V of 1908) Order VII, rule 11 A suit should be buried at its inception if it is found on the very averments of the plaint that the same is barred by law. [73 DLR 554] Order VII, rule 11 The instant suit was filed on 14.08.1996 and the defendants who filed the application for dismissal of the suit, filed written statement to contest the suit. Thereafter, issues were framed by the learned Joint District Judge and the suit being ready was fixed for peremptory hearing. At that stage on 26.06.2005 i.e. after about 9(nine) years from the date of filing of the suit the defendants filed the application for dismissal of the suit on the ground of its maintainability. In the application it was contended, inter- alia, that in the plaint the plaintiffs claimed that plaintiff No.1 is a private limited company and its Managing Director, Mr. Sirajul Islam Khan died leaving behind a son, 2(two) wives and one daughter, i.e. plaintiff Nos.2 and 3 and defendant Nos.5 and 6 respectively and plaintiff No.2 claimed himself to be the director of plaintiff No. I company. In order to become a director one must be the owner of minimum 5000 shares in the company and on the death of Sirajul Islam Khan none of his heirs became the owner of 5000 shares, so none of them is fit to be the director and in fact none became the director. As per article 14 of the Articles of Association an heir of a deceased share-holder can become a share-holder only when the Company approves the same but the heirs of de- ceased Sirajul Islam Khan were never approved by the Company. Plaintiff Nos.2 and 3 are not competent to be the director of the company and they had no interest in the property of the Company; the persons who got kabala from plain- tiff Nos.2 and 3 were not entitled to be impleaded in the suit. Although the suit was filed on behalf of the company for redemption of the mortgaged property, the plaint was not signed by any one on behalf of the company duly authorized in that respect. Although plaintiff No.3, Syeda Sultana signed the plaint as Director of the company, she was never Director of the company as per the Articles of Association of the Company. So, the suit filed by the company was not maintainable. Salahuddin Khan vs. Md. Abdul Hai Bahar (Md. Abdul Wah- hab Miah J) (Civil) 8 ADC 869 Editors’ Note: The question came up for consideration in the instant petition is whether a suit can be brought against the Chittagong Port Authority without service of a prior notice under section 49 of the Chittagong Port Ordinance,1976 and whether issue of maintainability for non service of aforesaid notice can be realized after joining the issue. The High Court Division held that after joining the issue and on completion of the hearing plaint cannot be rejected. The Court also held that as there is no alternative remedy in the Chittagong Port Ordinance,1976 regarding land dispute between the authority and the private individual the service of summon along with a copy of plaint upon the authority will be deemed as sufficient. In the result, the High Court Division discharged the rule. Purpose of serving notice prior to the institution of the suit under section 49 of the Chittagong Port Ordinance, 1976: Service of notice under Section 49 thereof prior to institution of any suit against the Chattogram Port authority has been incorporated for its smooth functioning and discharging its regular routine activities. Another purpose of such notice is to save public time and litigants’ expenditure in the cases where any person aggrieved serves notice upon the port authority and the authority by itself addresses his grievance realizing the right course of action before going to the court. In such view of the matter, if a person already institutes a suit under whatever notion and the summon with a copy of the plaint is served upon the port authority, the purpose of notice under Section 49 of the Ordinance would be sufficiently served inasmuch as no alternative remedy is provided in the Ordinance for dissolving any land dispute between the Port Authority and a private individual. (Para-24) Objection regarding rejection of plaint to be raised before joining the issues: Even in case of proceedings of a suit without prior notice, where such notice is legally required, the objection must be raised before fling of written statement by the defendant concern. After joining the issues by filing written statement, settlement of all issues and completion of hearing, a plaint cannot be rejected under Order VII, rule 11 of the Code especially when two other suits between the parties on the selfsame subject matter are pending in the same court and one of them is fixed for simultaneous hearing with the present suit. (Para-26) [17 SCOB [2023] HCD 34] Order 7, rule 11 However, from the above discussions it is evident that the High Court Division committed no wrong in allowing the de- fendants' application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint of Title Suit No.42 of 1999 of the 5th Court of Sub- ordinate Judge, Dhaka. The parties of this subsequent Title Suit No.42 of 1999 and the parties of earlier Title Suit No.177 of 1994, are same, the subject matter of both these suits being-the en- tire land of C.S. Plot No.371 of C.S. Khatian 4300 'Ja' of Mouza-Shahar Dhaka, are same and also the issues raised and settled in the earlier suit and the issues for determination in the sub- sequent suit are same. ....(12) Abdul Jalil vs. Islami Bank Bangladesh Ltd. (Nazmun Ara Sultana J) (Civil) 9 ADC 271 Order VII, Rule 11 The plaintiff-respondent Nos. 1-6 filed a written objection against the application for rejection of plaint stating, interalia, that the title of the petitioner was still sub-judice in Other Suit No.21 of 1956 filed by the respondent No.7 which does not contain any substance and legal force. It is asserted that the respondent No.7 died long ago and the suit filed by her has abated. The petitioner referred the orders passed in Civil Revision No. 1225 of 1960 with regard to death of respondent No.7 at the time of hearing of the Rule. The respondent No.36 tadbirkar of the respondent No.7 was directed to produce respondent No.7 before the High Court Division by order dated 31.07.1989. .......(5) This Hon'ble Court was pleased to grant leave in Civil Appeal No. 178 of 2002 in the following terms- "The learned counsel appearing for the petitioner submits that there is a clear admission in the plaint that the predecessor-in-interest of the plaintiff-respondent Nos. 1 to 6 and respondent Nos.28 to 36 were monthly tenants in respect of the suit premises and the High Court Division has failed to take into consideration and thus acted illegally and erroneously. He further submits that the High Court Division acted illegally and contrary to law in failing to appreciate the law of estoppel of tenants as laid down in sections 115 and 116 of the Evidence Act under which monthly tenants are estopped from denying the title of the owner without surrendering the premises and the plaintiff-respondents admittedly not having surrendered possession after judgment in Civil Revision No.1142 of 1969 wherein the issue of tenancy has been decided, the suit is barred by law. The learned counsel further submits that the High Court Division acted illegally and contrary to law in failing to con- sider that the plaintiffs' suit was barred by Sections 11 and 66 of the Civil Procedure Code and as such committed error in law in rejecting the petition under Order VII Rule 11 of the Code of Civil Procedure. He further submits that the plaintiff-respondents being heirs of the deceased defendants in Money Suit Nos.92 of 1960 and 97 of 1966 filed by the defendant for recovery of arrear rent and the predecessor-in-interest having admitted their tenancy under the petitioner in re- spect of the same property, the High Court Division erred in law in not hold- ing that the present suit claiming title by heirs of tenant is barred under Order XXII, Rule 4, Sub-Rule (2) of the Civil Procedure Code whereunder the heirs are estopped from raising a new case. The above submissions merit consider- ation. Leave is granted upon condonation of the delay." S.M. Hossain vs. Lahazud- din (Md. Muzammel Hossain J) (Civil) 9 ADC 510 Code of Civil Procedure (V of 1908) Order VII, rule 11 In a proper case the plaint can be rejected immediately after its registration and even before issuance of summons because of the fact that the very word 'shall' in the provisions under Order VII rule 11 of the Code makes it obligatory for the Court to reject a plaint if such plaint does not disclose any cause of action or if the suit is barred by law. (4.42) [73 DLR 554] Order VII, rule 11-Since granting of probate is a judgment in rem and binds not only the parties but also to the entire world any question relating to the Will after granting of "probate" cannot be looked into by any other civil court other than the court having competent jurisdiction ensured by the statue. The probate court alone has exclusive jurisdiction and the civil Court on original side does not have jurisdiction even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix once the probate is granted. Gita Sen vs Md Rafiqul Islam (Civil), 73 DLR (AD) 138 Filing of written statement by the defendant within the prescribed period of time is now a mandatory provision of law : ( Lal Mamud and others Vs. Siraj Miah and others , 45 DLR 638 ] The defendant has given reasonable explanation for delay in filing his written statement in the case - ends of justice will be frustrated if the same is not accepted [ Fazlul Huq Vs. Md . Tohed Ali and others , 47 DLR 326 ] Order VII Rule 11 of the Code of Civil Procedure The actions of the Government are made in the name of the President and notwithstanding the provision authorising the Government to make appointment of the learned Judges of the Adalat and constitute the said Court, the Government have taken the decision. under order of the President and there is nothing wrong in the impugned legislation and that the Artha Rin Adalat has been legally constituted and the suit has been legally proceeded with. A.R.A. Jute mills Limited -vs- Janata Bank and oth- ers (Md. Ruhul Amin J(Civil) 3AD 684 In a participation suit all the parties stand at par and there is no distinction between the plaintiff and defendant and thus anybody adversely affected by the proposed amendment car j oppose the same. Now it is well settled that the amendment of written statement can be allowed provided it is not malafide, belated and it relates lo the point in controversy. [Afzal Khan (Md) Vs. Md Azmal Khan (Civil) 43, 59 DLR 2007] In the instant case, the amendment sought for will not change the character of the suit or the plaint; rather such amendment is capable of determining the real question in controversy. [Shafiqul Islam Vs. Mustafiz (Civil) 42, 60 DLR 2008] In a suit for declaration of title and recovery of possession of part of the suit land, the apex court held the amendment sought for incorporating the alternative prayer for partition as perfectly justified since the same docs not change the nature and character of the suit, rather it would be necessary for effective adjudication of the dispute between the parties. The courts below misunderstood the suit as one under section 9 of the Specific Relief Act, 1877. Shafiqul Islam Chowdhury (Md.) and others Vs. Mustafizitr Rahman and others 147-150, 13 MLR 2008] Order 6, Rule 17 For declaration of title and Khas possession by evicting the defendants on removing Obstructions Md. Shafiqul Islam Chowdhury vs. Mustafizur Rahman (Md.joynul Abedin J) (Civil) 5 ADC 329 For declaration of title and confirmation of possession to.......(2) Md. Abdul Bari vs. Md. Abdul Aziz(M. M. Ruhul Amin J) (Civil) 5ADC 332 Order 6, 41, Rule 17, 27 Decreeing the suit declaring the suit property to have been purchased in the benami of the defendant A.H. Md. Ali Haider Quoraishi VS. Shaheen Quoraishi and others (Syed J.R. Mudassir Husain CJ) (Civil) 5ADC 451 A 'salish' was held and as per award of the 'salish' plaintiff got her name mutated in the S.A. record and thereupon paying rent, that as the S.A. record was pre- pared wrongly in the name of Kamaruddin, as such to avoid future complications the plaintiff is con- strained to file the suit. Md. Baker Mia and others vs Shamsun Nahar Begum (Md. Ruhul Amin J) (Civil) 5ADC 472 Amendment of plaint at the appellate stage Amendment of plaint can be made at the appellate stage provided the same is not barred by limitation. The amendment of the plaint in the instant case has been rejected on the ground of limitation and vagueness. [Abdul Wahud and others Vs. Abdul Wahed and others 107-108, 14 MLR 2009. The defendants did not agitate co-ownership in their pleadings nor did they adduce any evidence to that effect and their defence was based on exclusive ownership and possession but the claim of co-ownership was beyond the pleadings-No court can pass any order touching upon a point in its pleading and the observation of the trial Court regarding possession of the defendant can at most be termed obiter as those were no more than some passing remark. Pradhanid@ Abul (Civil) 147, 59 DLR 2007] [Ali Hussain Faraji vs Abdul All] A decree passed by a Court of first instance is appealable and not revisable-The instant civil revision is not maintainable. [Ahdur Rashid Salam Vs. Md Moniruzzaman (Civil)298, 58 DLR 2006) The learned Advocate-on-Record submitted that the appellate Court was in eror in holding that the land of patta dated February 18, 1922 corresponds to the land of Plot No. 240. The contention is of no merit as it is seen from the materials on record, and particularly from the judgment of the appellate Court, which court on detailed discussions of the evidence arrived at finding that the parties to the suit admitted that the land of patta dated February 18, 1922 is the land of Plot No. 240. It may be mentioned the land of patta dated February 18, 1922 was described by boundaries and the explanation as to that was that at the relevant time the land was not divided into plots and this fact is not disputed by the parties to the suit. [Daliluddin Sheikh vs Alek Sheikh alias Abdul Malek Sheikh (Civil) 32, 14 BLC 2009] Failure to give specification of suit land-the plaintiffs having failed to comply with the mandatory requirement of law in giving description sufficient to identify the suit land, they are not entitled to any decree even if they Succeed in proving their title. [Noor Mohammad Khan Vs. Bangladesh, 42 DLR 434] Identification of the suit property The lower appellate Court on scrutiny of plaint schedules came to the finding that the description of the suit land given by boundaries is quite identifiable and not vague and thereby rightly revised the trial Court's finding on identification, The suit being one for declaration of Rule 10 & Order XX rule 5-The defendants at the earliest opportunity raised the question of undervaluation of the suit and, as such, a specific issue to that effect ought to have been framed. [Abdus Samad and others Vs. Md Gafur and others, 56 DLR 297] Jurisdiction to entertain suit-A corporation can be said to carry on business at the place where it has a branch only in respect of a cause of action which arises wholly or in part at such place. If no part of the cause of action accrues at the place of the branch officer the mere fact of the corporation having a branch office at the place will not give the court jurisdiction to entertain a suit. [Khondaker Mahtabuddin Ahmed, Vs. Matin Tea and Trading Company, 46 DLR (AD) 92] It is a well settled legal proposition that in considering an application or a prayer made by a party the court will sec the contents of the application and it can give a relief under the appropriate law even if a wrong provision of law is quoted, the Subordinate Judge was wrong in rejecting the application for rejection of the plaint on the view that no provision of law was mentioned. [Abul Kashem-al-Asad vs Abdul Muhib (Civil) 502, 61 DLR 2009] It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. It is also well established that even if jurisdiction is so excluded the Civil Courts have jurisdiction to examine cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. [Salima Akhter Niluma Banu Vs. Shahin Shakhider (Civil) 47, 60 DLR 2008. Fresh partition suit can be instituted after the previous one was dismissed for default in view of the legal position that the possession of one co-sharer is the possession another co-sharer in the suit property and the cause of action is recurring one. Civil Revision No. 217 1 of 2005, 14 MLR 2009. The question of limitation in a suit is a mixed question of law and fact which can be decided only at the trial on taking evidence. In view of the reliefs prayed in the suit, the plaint cannot be rejected. [Shahabuddin (Md) de others Vs. Habibur Rahman and ohers, 50 DLR (AD) 99] The plaint could be rejected only when the court comes to the conclusion that even if all the averments made in the plaint are taken to be true still then the plaintiff would not be entitled to any relief at all. Mohsena Begum Vs. Abdus Sattar, 50 DLR 29] The application made under section 14(2) of the Arbitration Act is not a plaint. The application of the petitioner under Order VII rule 11 of the Code for rejection of such application is wholly misconceived. [Dhaka Leather Compary Ltd. Vs. Sikder Construction Ltd. and another, 54 DIR 357] When the nature of transaction becomes doubtful on the specific allegation made by the pre-emptor then the matter is required to be tested by adducing evidence in order to ascertain the nature of transaction and to decide the case properly. [Alfazuddin Mollah and others Vs. Md. Almas Chokder and anr., S6 DLR (AD) 179] For the ascertainment of the cause of action court is required to read the plaint in its entirety. Sunder Ali being dead his heirs Abdul Hannan and others Vs. Md Serajul Islam Sarker & others, 56 DLR (AD) 210] It is now well settled by good authorities that a proceeding is though premature on the date of filing but with the continuance of the proceeding becomes matured, such question of immaturity loses all defects and becomes cured. Sardar Jan Mohammad and another Vs. Lutfannessa and others, S6 DLR 514. The question whether the plaint is liable to be rejected being barred by law must be apparent from the statement made in the plaint itself and not from the written statement or any other material other than that has been put in the plaint. [Abdul Malek Sawdagar Vs. Md Mahbubey Alam and others (Civil), 57 DLR 2005. No final decision was taken in respect of the change of the polling stations when the suit was filed.. Therefore, the plaintiff had/has no cause of action to file the suit and, as such, the provision of Order VI, rule 1 1(a) of the Code of Civil Procedure is attracted. [Sazzadul Hague Liku (Md) Vs. Border Ánwar Hossain (Civil) 273, 57 DLR 2005] it appears that the Judge of the Artha Rin Adalat in question is Joint District Judge appointed in the post by transferring him by notification under the Order of the President and in consultation with the Supreme Court and the notification being published in the Gazette. There is thus no substance in the submission of the petitioner as 10 absence of jurisdiction of the Judge to hold the post. [ARA Jute Mils Lid Vs,. Janata Bunk (Civil) 126, 58 DLR 2006] The bar of section 56(k) of the Specific Relief Act or non-production of document under rule 14 of Order VI) has no manner of application in considering petition under Order VII, rule 11 of the Code. Nor on point of maintainability of the suit, the plaint is liable to be thrown away in inline as the question may be agitated in framing un issue to the point. Similarly, for alleged vagueness in the schedule, if any, the plaint is not liable to be rejected. [Muhamad Ali Vs.. Lt Col (Retired Habibullah Bahar (Chil) 245, 58 DLR 2006] Provision of section 6 of Artha Rin Adalat Ain, 1990 bars filing of separate suit to set aside exparte decree passed by Artha Rin Adalat. Only available scope for selling aside ex parte decree passed by Artha Rin Adalat in Artha Rin case is to file miscellaneous case under Order 1X. rule 13 of the Code of Civil Procedure by deposit of 50% of decretal anount. It clearly appears that TS 194/2002 was filed separately to set aside ex parte decree of Artha Rin Adalat in order to avoid deposit of 50% of decretal amount and filing miscellaneous case under Order 1X, rule 13 of the Code of Civil Procedure as has been made available under said Act of 1990. [M Ttiriquliah Sikdor Vs. Sonali Bank (Civil) 695, 59 DLR 2007] Section 73 of the Act empowers the District Judge in entertain a suit relating to infringement of Trade mark or otherwise relating to any right in a Trade mark i.e. passing oil action. A perusal of the plaint shows The plaint discloses statement of facts relating to infringenent of trade mark 'Dominous Pizza' along with an action of passing oil", {Dominous Pizza s Domino'Pizza Inc (Civil), 780, 61 DLR (2009) Order 6, rule 16, Section 115(1) Praying for declaration that he became owner in possession of the suit land by dint of an oral gift made on 08.03.1984 by the defendant No. 1 in his favour. The subsequent written statement filed on 30.1.1997 as it was completely Order 6, Rule 17 Declaration of title to the suit land on the averments Since the plaintiffs are found in possession of the suit land there is no bar to allow the prayer for declaration regarding joint possession of the plaintiff with defendants No.7-10 along with declaration of their title; if the prayer of the plaintiffs for amendment of the plaint is not allowed they will be deprived of their legitimate right of enjoyment of their valuable properties; it is settled principle of law that amendment of the pleading can be allowed at any stage of the proceeding provided that the amendment, if allowed, would not change the nature and character of the suit and that amendment is necessary to effectively decide the real controversies between the parties in the suit. Hemayet Ali Shaikh and others vs. Ramesh Chandra Mondal (Md. Tafazzul Islam J) (Civil) 4 ADC 866 Order 6, Rule 7 At the time of trial the plaintiff made out a case that his father had taken the lease for his (plaintiff's) benefits and interest during his infancy. The departure in the evidence from the plaint has not been of such a dimension that the defendants were unfairly taken by surprise. The defendants suffered these evidence to be taken. Evidently this has caused no prejudice to the defendants. Both the parties had all opportunities to lay before the court all their evidence respecting title and possession of the suit land. In such circumstances the operation of order 6 rule 7 of the Code of Civil Procedure will not come in. Kochi Mia @ Khocha Mia vs Suruj Mia ors. (Bimalendu Bikash Roy Choudhury J Civil) 2ADC 560 Order VI, Rule 17 The prayer for amendment of law plaint can be made at any stage of the proceeding in order to decide the matter in controversy between the parties. Md. Sirajuddin vs Mohibunessa 1 (Civil) ADC 136 Order VI, rule 2-Order VI, rule 2 of the Code, which does not require the names of witnesses to be specified in the plaint. Asgor Ali vs Noorjahan (Civil), 73 DLR (AD) 119 Order VI, rule 17-Amendment of plaint was filed after lapse of 10 years of institution of the suit and that the trial Court accepted the amendment after long lapse of time. Admittedly, as soon as gazette notification bas been published in the official gazette, the acquired property including the suit property vested in the Government free from all encumbrances and the Government is at liberty to use the property for any other purpose and the original owners lost their right over the acquired land for good. The suit itself was not maintainable from its very inception. The plaintiff cannot take the plea that the suit is maintainable because of malafide, Chairman, Bangladesh Agricultural Development Corporation (BADC) vs Abedunnessa (Civil), 73 DLR (AD) 196 Order VI, rules 17 read with Order XXIII, rules 1 & 2 Plea does not stand to reason because the wrong statements made in the plaint can be corrected by way of amendment which will not change the nature and character of the suit. The plaintiffs may also pray for consequential relief by way of amendment on payment of ad valorem court fee and for addition of such relief, withdrawal of the suit and appeal with the permission to sue afresh is not at all necessary. Government of the People's Republic of Bangla- desh vs Babor Ali Gazi (Civil), 73 DLR (AD) 3 Order VI, rule 17 On 16.05.2006, the petitioners filed an application under Order VI Rule 17 of the Code of Civil Procedure before the learned Senior Assistant Judge, First Court, Bogra for amendment of the plaint. They stated, inter alia, that owing to inadvertence some important facts have not been incorporated in the plaint. Not only correction of the description of the names of some of the plaintiffs is necessary but striking out the name of plaintiff No.61 is also essential. Md. Akram Ali Pk. vs. Md. Yasin Ali (Syed Mahmud Hossain J) (Civil) 9 ADC 703 Code of Civil Procedure [V of 1908] Order 7, Rules 1 (e) & (g)-Whether a suit is liable to be dismissed for making a wrong/inappropriate prayer? It is the requirement of the law, namely, Order VII, Rules 1 (e) & (g) of the CPC that the plaintiff must state his/her grievance in the plaint and, further, the plaintiff must seek the aspired relief. The law binds a plaintiff and defendant to pray for relief in specific terms. In view of employment of the words ...... the plaint shall contain ....... in Order VII, Rule 1(g) and the words in Order VII, Rule 7 ....... every plaint shall state specifically the relief which the plaintiff claims either simply or, in the alternative ........', the first presumption by this Court, without searching for and resorting to any case- laws, is that the above provisions are to be applied mandatorily. When a grievance or complaint or dispute is placed before a Court, the Court's primary duty is to consider its substance, which may be derived from not only the averments and prayer, but also from the evidence led by the parties at the trial. Because, considerations of form cannot override the legitimate considerations of substance. From the averments and/or prayer (pleadings), if it transpires that a plea is not specifically made but it is covered by an issue by implication, and it appears to the Court that other side would not be prejudiced; in other words, it within the knowledge is of the other side that the said plea was involved in the trial, then, the mere fact that the plea was not expressly taken in the pleadings would, in my opinion, not necessarily debar a party from relying upon it if it is satisfactorily proved by evidence. If the plaintiff does not make proper prayer in the plaint, the suit must not be dismissed on the said ground, rather it would be the duty of the Court to frame appropriate issue's on the basis of the pleadings and submissions put forwarded by all the parties to the suit and proceed with the suits towards its effective disposal. Md. Akram Ali and others -Vs.- Khasru Miah and others (Civil) 19 ALR (HCD) 124-148 Code of Civil Procedure [V of 1908) Order 7, Rule(1)(e)-Whether for naming a suit wrongly as "Title Suit instead of 'Partition Suit', the said suit is liable to be dismissed? If the plaintiff or the engaged Advocate fills in the line 'class of suit' engraved in the 'slip of paper by taking into consideration the reason/purpose of institution of the suit, which are outlined in Section 16 of the CPC, in other words, if the 'classification of suit is written in the 'slip paper' on the basis of 'the facts constituting the cause of action" and "the relief which the plaintiff claims for', as required by the law, namely, Order VII, Rule(1)(e) and Order VII, Rule(1)(g) respectively, to be set out in the plaint, then, the plaintiff's or the Advocate's obligation is deemed to be fulfilled. However, in compliance with the prevailing practice, when the plaintiff Advocate names the suit as Partition Suit, Title Suit, Money Suit etc and, subsequently, upon carrying out scrutiny by the Sheristadar or by the Court if it appears to be mismatched with the class of the suit, usually, the Sheristadar of the Court or the learned Judge puts a befitting name relying on the plaint's averments plus prayer. It follows that when a suit is named by the plaintiff or Advocate as Partition Suit or Title Suit or Money Suit or Other Class Suit etc, s/he is required to do so by taking into consideration the averments regarding grievances for institutions of the suit in tandem with the prayers made therein. However, given that neither is there any coherent customary practice for designating a suit with a particular name, nor is there any mandatory legal provision requiring that a suit must be marked by a particular name, therefore, in my view, if a plaint is filed with a name mismatching with the plaint's averments and prayers i.e. with a wrong/unsuitable name, it cannot be a ground for non- maintainability of a suit. Md. Akram Ali and others -Vs. Khasru Miah and others (Civil) 19 ALR (HCD) 124-148 Order 7 Rule 3 For decree of declaration of their right and title in the Kha schedule property against the defendants stating that the schedule 'Ka' land of the plaint was owned by late Majnani Bewa. The suit lot-1 property was under her Khas pos- session, while the 1st-2 property was enjoyed by her by granting Korfa Pattan and the land was recorded in C.S. Khatian in her name accordingly......(2) Md. Rafiq Uddin vs. Md. khorshed Ali Mollah (Mohammad Fazlul Karim J) (Civil) 5 ADC 115 Order VII, Rule 3-It is clear that the plaintiff mentioned the number of the C.S. and the S.A. Khatians and also the plot numbers of the lands in the suit and thus there was full compliance with the previsions of Order VII, rule 3 of the Code. And since no fraction or portion of the lands of the two plots was claimed, there was no necessity of giving any chauhaddi or boundary of the suit plots. ..... Karim Khan -VS- Kala Chand, [3 LM (AD) 236] Code of Civil Procedure [V of 1908] Order 7 rule-3-Where the subject matter of the suit land is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement of survey, the plaint shall specify such boundaries or numbers. Tara Sheikh and others. -Vs- Eshaque Mridha and others. (Civil) 19 ALR (HCD) 321-325 Code of Civil Procedure [V of 1908] Order 7, rule 3-Whether there can be a simple declaration of title where only a portion of the land in a plot is claimed by way of inheritance and that portion is not specifically identified in accordance under Order VII, rule 3 of the CPC. The Appellate Division held that it is by now an established principle of law that in a suit for permanent injunction or where there is a prayer for recovery of possession, there has to be specificity about the land claimed by the plaintiffs. [see Moharram Ali and another Vs. Mohammad Madhu Mia and others, 41 DLR (AD) 92]. With respect the Appellate Division is in full agreement with that view. However, where there is no question of dispossession or injunction, the Appellate Division is of the view that the case of Moharram Ali cited above, can be distinguished. For what it may be worth, the plaintiffs may get a declaration that they have title over a given quantum of land which was inherited from the recorded tenant. In the facts of the instant case, the defendants appear to have purchased land from a different Khatian to that claimed by the plaintiffs. Hence, there appears to be no conflict of claim. If and when any question arises over possession or dispossession then the parties can file a suit for partition, if so advised. In view of the discussion above, the Appellate Division finds that the High Court Division erred in dismissing the suit upon reversing concurrent findings of the Courts below. Accordingly the appeal is allowed. Sufala Rani and another -Vs- Balai Mondal being dead his heirs: Mahesh Mondal and others (Civil) 16 ALR (AD) 84-87 Code of Civil Procedure [V of 1908] Order 7, rule 3 A mere look at the schedules to the plaint from where the plaintiffs were allegedly dispossessed, it is apparent that those were totally vague and unspecified and the description of the suit land did not fulfil the requirement of the mandatory provisions of Order VII, rule 3 of the Code of Civil Procedure and that being the state of the suit land, the plaintiffs were not entitled to get any relief in the suit. The Appellate Division held that admittedly, the suit was for recovery of khas possession simplicitor, so it was obligatory upon the plaintiff to specify the land by giving chouhuddi as well as by giving sketch map. The Appellate Division has gone through the schedules to the plaint. In the plaint as many 6 schedules, namely, "Kha' to 'Chha' were mentioned from which the plaintiff was allegedly dispossessed. Thus, a mere look at the schedules to the plaint from where the plaintiffs were allegedly dispossessed, it is apparent that those were totally vague and unspecified and the description of the suit land did not fulfil the requirement of the mandatory provisions of Order VII, rule 3 of the Code of Civil Procedure and that being the state of the suit land, the plaintiffs were not entitled to get any relief in the suit, the High Court Division rightly allowed the appeal and dismissed the suit. Therefore, the Appellate Division finds no reason to interfere with the impugned judgment and decree. Accordingly, the appeal is dismissed. M. Delwar Hossain - Vs. Mohammad Ali and others (Civil) 21 ALR (AD) 134-138 Order VII, Rule 11- Rejected the plaint The abandoned character of the property having been established all the way to this Division and the challenges of the Government as well as the present respondent having been unsuccessful, there can be no doubt about the legality of the gazette notification dated 02.12.2004 and hence we find that the trial Court rightly rejected the plaint of writ-respondent No.1 under Order VII, Rule 11 of the Code of Civil Procedure. We find that the judgement and order of the High Court Division is not in accordance with law and accordingly the impugned judgement and order is set aside and the judgement and decree dated 24.03.2006 passed by the learned Joint District Judge, First Court, Mymensingh in Other Class Suit No.03 of 2004 is upheld. The appeal is allowed. ...Javed Alam(Md.) =VS= A.F. Alfajuddin Ahmed, [6 LM (AD) 1] Order 7, Rule 11(d) The High Court Division rightly ob- served as follows:- "Whether the plaintiff can rely or base upon the facts which occurred during the period of 1992-94 for its claim of compensation from the de- fendant which it made lastly by legal notice dated 05.04.2003 or not is purely a question of fact and can only be decided after the sifting of the evidence to be adduced by the parties, particularly limitation being a mixed question of fact and law. In view of the above, we do not find any error committed by the court below in passing the impugned order occasioning failure of justice rejecting the application filed by the defendants under Order 7, Rule 11(d) of the Code therefore no interference is called for by this court with the impugned order. However, we make it very clear that the point as argued by Mr. Shamim Khaled Ahmed, can very much be agitated at the time of final hearing of the suit by framing a specific issue to the effect 'whether the claim of the plaintiff is barred by limitation'." Janata Bank vs. M/S. Haque Commercial Syndicate (Md. Muzammel Hossain J) (Civil) 10 ADC 117 Code of Civil Procedure [V of 1908] Order 7 rule 11-The High Court Division not rejected the plaint under Order 7 rule 11 of the CPC but strucking out schedule 'kha' land from the plaint. The High Court Division is not rejecting the plaint under Order 7 rule 11 of the Code of Civil Procedure but strucking out schedule 'kha' land from the plaint as said portion of the plaint is not entertainable and there is no necessity to consider material evidences either oral or documentary. Dr. Shamsuddin Zahangir and another -Vs- Asraf Abdul Halim Faridi and others (Civil) 19 ALR (HCD) 363-368 Code of Civil Procedure [V of 1908] Order 7, rule 11 read with Specific Relief Act [I of 1877] Sections 54, 55 and 56(F) For rejection of plaint There is no hard and fast rule that by any single action if several individuals are aggrieved, all the aggrieved individuals should redress their grievance jointly or severally. The High Court Division does not find any bar for any single individual to seek legal remedy against any action by which he has been aggrieved with some others. The defendant-petitioners after appearing in the suit have not filed written statement and from the order sheets including the impugned order, it clearly transpires that the defendants were repeatedly taking times for filing written statement in the suit and in the juncture of taking time, the defendants suddenly filed the application for rejection of the plaint under Order VII, rule 11 of the Code beyond the provision of law. There is no such provision of Arbitration in the Agreement. Rather, there is provision for settlement of dispute and difference between the parties in "mutual good faith." The term "mutual good faith" does not fall within the ambit of Arbitration. Therefore, the submission of the learned Advocate for the petitioner relating to Arbitration has got no basis at all. The High Court Division is of the view that the application under Order VII, rule 11 of the Code of Civil Procedure has not been filed lawfully and the same has rightly been rejected by the learned Judge of the Trial Court. In such view of the matter, the Rule issued in Civil Revision No. 1265 of 2016 relating to rejection of the application under Order VII, rule 11 of the Code has got no merit. Accordingly, the Rule is discharged without any order as to costs. As regards the Rule issued in Civil Revision No. 583 of 2016 relating to rejection of application under section 151 of the Code praying for ad-interim injunction, the High Court Division is of the view that since an application under Order XXXIX, rules 1 and 2 of the Code filed by the plaintiff is pending before the Trial Court, the Trial Court is competent enough to consider the same. Therefore, the Trial Court is directed to dispose of the aforesaid application in accordance with law positively within thirty days from receiving copy of the judgment. Accordingly, the Rule issued in Civil Revision No. 583 of 2016 is disposed of. Unicom Education Consultant Services Limited and another-Vs.- Redwanul Bari (Civil) 23 ALR (HCD) 56 Code of Civil Procedure [V of 1908] Order 7 rule 11-Whether the plaint is liable to be rejected the Court is required to peruse the paint only and Court is not permitted to travel beyond the paint to dig out grounds to reject the paint which is a settled principle of law. The High Court Division held that it is true there is some mistake in the plaint though the contents of the plaint do disclose the cause of action for the suit There is ample opportunity to amend the plaint at any stage of the suit. So the plaint cannot be rejected on that count. For the foregoing reasons stated above, the High Court Division hold that the Court of Appeal below acted illegally in affirming the order of the trial Court dated 14.05.2013 dismissing the suit on the ground of maintainability of the suit and the same does not deserve to be sustained, In the result, the Rule is made absolute. Md. Zushan. Vs. Upazila Education Officer and others. (Civil) 18 ALR (HCD) 270-272 Code of Civil Procedure [V of 1908] Order 7 Rule 11 read with section 115 (1) Artha Rin Adalat Ain [VIII of 2003] Section 20- No suit can be instituted by any person challenging any proceeding, order, judgment and decree passed by the Artha Rin Adalat in any court except the provisions provided in the law. The High Court Division held that the present suit is not filed by the plaintiff challenging any proceeding, order, judgment or decree passed by any Artha Rin Adalat. The instant suit in between two private individuals relating to declaration of title and recovery of possession only. As such, the suit is not at all barred by section 20 of the Artha Rin Adalat Ain. The trial court misread and misconstrued the provision of law and without due application of mind rejected the plaint holding that the suit is barred by section 20 of the Artha Adalat Ain or attracts the prayer of the instant suit. The appellate court while allowing the appeal, exhaustively and very nicely explained the situation and interpreted the law in this regard and rightly held that the suit is not barred by section 20 of the Artha Rin Adalat Ain. In view of the above, the High Court Division finds that the appellate court has not committed any error of law occasioning any failure of justice. Taking into consideration the above, the Rule is discharged, however, without any order as to costs. Sarowar Wadud Chowdhury -Vs- A.K.M. Hammad Zinnah and others (Civil) 18 ALR (HCD) 180-182 Code of Civil Procedure [V of 1908] Order 7 Rule 11-If the plaint discloses a cause of action, the correctness or otherwise of the allegations constituting the cause of action is beyond the power of order 7 Rule 11. A plaint can not be rejected on the ground of disclosure of two causes of action or of misjoinder of parties. The Appellate Division held that the rejection of plaint at the threshold entails very serious consequences. This power has to be used in exceptional circumstances and ought to be used only when the court is absolutely sure that the plaintiff does not have an arguable case at all. A dismissal of suit and a rejection of plaint are not identical terms. A plaint can be rejected on any of the grounds mentioned in Order 7 Rule 11 of the Code and not otherwise. Mampower Ltd.-Vs. Artha Rin Adalat No. 2, Dhaka and another (Civil) 18 ALR (AD) 30-31 Code of Civil Procedure [V of 1908] Order 7 rule 11 read with Registration Act [XVI of 1908] Section 17(A) Section 17(A) and 17(B) of the Registration Act only apply to the registration of the Bainapatra deed, the plaintiffs have not claimed to have registered deed of sale on the basis of said Bainanama and therefore it does not apply to the instant suit and there is no ground to reject the plaint of the plaintiffs. The High Court Division held that the provisions of Order 7 rule 11 of the Code of Civil Procedure and section 17(A) and 17(B) do not apply to the suit of the plaintiffs as the plaintiffs did not file the instant suit for specific performance of contract, the plaintiffs contention was that they had been in possession of the suit land since 27.10.2002 and they have mentioned the matter of Bainanama in the plaint to establish their date of getting possession of the suit land. Section 17(A) and 17(B) of the Registration Act shall only apply to the registration of the Bainapatra deed, the plaintiffs have not claimed to have registered deed of sale on the basis of said Bainanama and therefore it does not apply to the instant suit and there is no ground to reject the plaint of the plaintiffs. Considering the facts and circumstances of the case the High Court Division finds no substance in the Rule. In the result, the Rule is discharged. Kari Moulavi Abdul Gafur and another Vs. Mohammad Nurullah alias Badsha (Civil) 17 ALR (HCD) 4-07 Code of Civil Procedure [V of 1908] Order 7, Rule 11 Registration Act [XVI of 1908] Section 17A and 17B The provisions of Order VII, rule 11 of the Code of Civil Procedure read with section 151 and sections 17A and 17B do not apply to the suit for the permanent injunction of the plaintiffs. The plaintiffs did not file the suit for specifie performance of contract on the basis of the Bainanama. Section 17A and 17B of the Registration Act shall apply only to the registration of the Bainanama deed, but the plaintiffs have not claimed to have registered deed of sale on the basis of said Bainanama. Therefore, it does not apply to the instant suit; there is no ground to reject the plaint of the plaintiffs. The Appellate Division is of the view that the High Court Divisions observation that the plaint of the suit for permanent injunction could not be rejected under Order VII, Rule 11 of the Code is a correct proposition of law in the facts of the case, but the ordering part of the judgement is somewhat incongruous. In such view of the matter, the Appellate Division is inclined to set aside the judgement and order of the High Court Division as well as the judgement and decree passed in Civil Revision. The order of the trial Court in restored. Kari Moulavi Abdul Gafur and another. Vs. Mohammad Nurullah @ Badsha. (Civil) 17 ALR (AD) 90-92 Code of Civil Procedure [V of 1908] Order 7, Rule 11-Since the property was not abandoned and, therefore, the Government had transfer the property. no authority to The Appellate Division held that the effect of the decision of the Court of Settlement that the property was not abandoned is that the inclusion of the property in the abandoned property list by gazette notification dated 23.9.1986 is negated and that decision that the property was not abandoned relates back to the date on which it was included in the gazette. In other words, the effect of the finding that it is not abandoned means that it was not abandoned on 23.9.1986. Hence, transfer of the property by way of sale dated 18.10.1990 to respondent No. 1 is nullified since the property was not abandoned and, therefore, the Government had no authority to transfer the property. It is curious that the Government did not mention the sale of the property at any point in time during the proceedings before the Court of Settlement or indeed when the matter was pending before the High Court Division. When the Government came before the Appellate Division, only the direction of the High Court Division with regard to interest to be paid on the rental amount was challenged. The Appellate Division is of the view that the decision of the Government to release the property from the "Ka" list of abandoned properties by Gazette dated 02.12.2004 has put a final seal on the matter. The abandoned character of the property having been established all the way to the Appellate Division and the challenges of the Government as well as the present respondent having been unsuccessful, there can be no doubt about the legality of the gazette notification dated 02.12.2004 and hence the Appellate Division finds that the trial Court rightly rejected the plaint of writ-respondent No. 1 under Order VII, Rule 11 of the Code of Civil Procedure. In view of the above discussion, the Appellate Division finds that the judgement and order of the High Court Division is not in accordance with law and accordingly the impugned judgement and order is set aside. Md. Javed Alam Vs. A.F. Alfajuddin Ahmed and others (Civil) 15 ALR (AD)121-125 Code of Civil Procedure [V of 1908] Order 7, Rule 11 read with Registration (Amendment) Act, 2004 Section 17A read with Specific Relief Act [1 of 1877] Section 21A The suit was filed with two prayers. Firstly, for a direction upon defendant No. 1 to execute a deed in respect of the land described in the schedule, failing which a direction that the property is liable to be registered; and secondly, seeking a direction that the registered heba-bil-awaz No. 5168 dated 10.07.2006 is inoperative. The trial Court observed that the two claims of the plaintiff cannot be decided without taking evidence. The Appellate Division finds that the trial Court has identified two claims made by the plaintiff in the plaint of the suit. Having gone through the order of the trial Court, the Appellate Division is of the view that the application under Order VII, Rule 11 of the Code was rightly rejected and no illegality has been committed by the High Court Division in upholding the order of the trial Court. In view of the above, the Appellate Division does not find any merit in the civil petition for leave to appeal, which is accordingly dismissed. Saifuddin Ahmed -Vs. Dr. Hosne Ara Begum alias Golap and others (Civil) 23 ALR (AD) 24 Code of Civil Procedure [V of 1908] Order 7, rule 11 read with Section 11 The High Court Division in deciding the merit of an application under Order VII, rule 11 of the Code could come to a finding that the facts stated in the plaint as to the cause of action to file the suit were unreliable relying on the unexhibited documents produced by the defendant by filing a supplementary affidavit before it. It is absolutely the domain of the trial Court and then the Appellate Court, if there be any appeal against the judgment and decree of the trial Court either to believe or disbelieve the facts stated in the plaint as to the cause of action to file a suit. The treatment of the High Court Division of the unexhibited documents and consideration of the case of the defendants in deciding the merit of the application under Order VII, rule 11 of the Code. And the Appellate Division is constrained to hold that the High Court Division had not the minimum legal acumen as to the scope of interference in revision in deciding the propriety of an order passed by the Court below under Order VII, rule 11 of the Code. The Appellate Division held that the impugned judgment and order of the High Court Division is set aside, the application filed by the defendant Government under Order VII, rule 11 read with section 151 of the Code is hereby rejected. The suit shall proceed in accordance with law. All the adverse comments made by the High Court Division about the maintainability of the suit and the cause of action to file the suit are hereby expunged. The trial Court shall be at liberty to decide the issue of maintainability along with the other issues involved in the suit on the evidence to be adduced by the parties at the trial. The parties are directed to maintain status-quo strictly in respect of the position and the possessions of the suit property till disposal of the suit. Md. Abdul Khaleque and others -Vs. The National Housing Authority and others (Civil) 16 ALR (AD) 170-175 Code of Civil Procedure [V of 1908] Order 7. Rule 11 read with section 151- Whether a plaint is to be rejected, the court will take only the plaint and documents therewith filed into consideration and not what has been urged by the defendant in a petition or in the written statement. The Appellate Division observed that in the judgment the learned Joint District Judge has not specifically decided as to whether the claiming of compensation as damage falls within dispute as per terms of agreement rather, he opined ambiguously since there is a clause for arbitration in the agreement for resolving dispute, hence, the suit is barred. He, therefore, rejected the plaint as barred by law. Thus, it is evident that the judgment and order of the Joint District Judge suffers from legal infirmity as well as violating the settle principles enunciated by the Appellate Division. Executive Engineer, Roads and Highway Department (RHD), Road Division, Munshiganj Vs. Md. Nurul Islam and others (Civil) 16 ALR (AD) 163-168 Code of Civil Procedure [V of 1908] Order 7 Rule 11(a) and (b) read with section 151-Whether the plaintiff is a worker or performing managerial and administrative function is to be deicided upon taking evidence. The court below considering whole gamut of the legal and factual aspects held that application for rejection of plaint is not tenable. The High Court Division held that a worker who on solitary occasion does function of managerial or administrative officer does not cease to be a worker. The decision (21 DLR 285) is plainly not applicable in the instant case as because for taking a decision whether the plaintiff is a worker or performing managerial and administrative function is to be deicided upon taking evidence. The court below considering whole gamut of the legal and factual aspects held that application for rejection of plaint is not tenable. The High Court Division finds no infirmity or illegality in the findings made therein. Accordingly the rule is discharged. Uttara Bank Limited Vs. Md. Abdul Khaleque and another (Civil) 19 ALR (HCD) 213- 215 Code of Civil Procedure [V of 1908] Order 7 rule 11 (d)- lt is the view of the Appellate Division that application under Order 7 rule 11 (d) of the Code of Civil Procedure for the rejection of plaint that there is a clear distinction between a case where the suit appears to be barred from the statement in the plaint and a case in which the Court after consideration of the enter materials including oral and documentary evidence comes to the conclusion that the statement in the plaint is false. In the former case plaint is liable to be rejected but in latter case plaint cannot be rejected and the suit will be dismissed. Dr. Shamsuddin Zahangir and another Vs. Asraf Abdul Halim Faridi and others (Civil) 19 ALR (HCD) 363-368 Code of Civil Procedure [V of 1908] Order 7 clause (d) of rule 11 of read with Chittagong Port Authority Ordinance, 1976 Section 49-A suit cannot be instituted against the Authority, namely, the Chittagong Port Authority or against any officer or employee of the Authority or any person acting under their direction unless a notice in writing has been delivered or left at the office of the Authority. The Appellate Division observed that notice has been served upon the Chairman, who is the Chief Executive Officer of the Authority and notices had also been served upon some officers of the Authority. Since notice was served upon the Chairman of the Chittagong Port Authority, notice could be said to have been served upon the Port Authority and sufficient compliance with section 49 of the Ordinance could be said to have been made. In the plaint, there is an averment that notice under section 49 of the Chittagong Port Authority Ordinance had been served. When there is clear assertion in the plaint itself that notice under section 49 of the Ordinance was served upon the Chittagong Port Authority, it could not be said that the suit is barred by law as envisaged in clause (d) of rule 11 of Order VII of the Code of Civil Procedure. In view of the above discussion, the Appellate Division hold that the High Court Division was justified in allowing the appeal and setting aside the judgment delivered by the learned Subordinate Judge rejecting the plaint. Accordingly, the appeal is dismissed and the impugned judgment passed by the High Court Division is affirmed. Abdur Razzak Dob- hash. Vs. Ali Murtaza Dobhash and others. (Civil) 18 ALR (AD) 55-56 Code of Civil Procedure [V of 1908] Order 7 rule 11(B)-Whether the plaint shall be rejected if the plaintiff fails to put in requisite stamp-papers within the time fixed by the Court. The High Court Division held that if the plaint is rejected on the account of the failure of the plaintiff to correct the valuation or to put in requisite stamp paper within time fixed by the Court, no doubt it would be very harsh decision against the plaintiff to gain over the defendant without contesting the suit on merit and thus the plaintiff will be debarred from his lawful claim. But the said proviso of the rule was added by an amendment only to check unnecessary and willful delay to correct the valuation and to supply deficit court fees. Considering the facts and relevant provisions of law and the decision of apex court reported in 10 MLR (AD) 186, the High Court Division finds merit in this appeal. In the result, the appeal is allowed. Sree Bhuban Chandra Sutradhar and others Vs. Md. Afroj Afgan Choudhury and others (Civil) 15 ALR (HCD) 262-265 Code of Civil Procedure [V of 1908] Order 7 rule 11(d) read with Real Estate Development and Management Act [XLVIII of 2010] Section 36 read with Salish Ain, 2001 Section 2(Y), 7 and 10 read with Building Construction Act, 1952 Section 14-Whether the plaint is liable to be rejected under Order 7 rule 11(d) CPC because of the bar imposed by any law, particularly section 36 of the Real Estate Ain, 2010 and section 7 of the Salish Ain, 2001 and section 14 of the Building Construction Act, 1952 (ইমারত নির্মাণ আইন). The High Court Division finds there is an agreement between the parties, but there is no clause requiring the parties to resort to arbitration. Clause 15 speaks only of an amicable settlement and not of arbitration. For ready reference, clause 15, as earlier produced in the impugned order of the trial Court, is reproduced below: "That in case of any dispute arising between the parties hereto regarding this agreement it is agreed that it will be amicable settled the parties and a supplementary agreement may be made to resolve the dispute without the intervention of anybody else" Evidently clause 15 of the agreement does not contemplate an arbitration process. There is nothing on record to show that the parties otherwise (চুক্তি বর্হির্ভূতভাবে) agreed to have an arbitration process. So the agreement cannot be treated as a সালিস চুক্তি and therefore section 7 of the Ain, 2001 or section 36 of the Real Estate Ain, 2010 does not come into play and these provisions do not stand as a legal bar to the filing of, or entertaining, the suit. Even section 10 does not come into play for the same reason. It is noted that section 14 of the Building Construction Act, 1952, has been pleaded as a ground in the application filed by the defendant for rejection of the plaint, but it was not pleaded in the trial court or in this court. However the High Court Division has examined section 14 of the said Act, 1952. This section 14 imposes bar on the jurisdiction of the Civil Court in respect certain actions of the authorized officer of RAJUK taken under section 3, 3A, 3D, 4-6 and 9. In the instant suit, plaintiff has not challenged any action of the RAJUK. So section 14 of said Act, 1952 is not applicable to issue of rejection of plaint. In view of the above findings, the High Court Division concludes that the trial court, in passing the impugned order rejecting the plaint, committed an error of law occasioning failure of justice and therefore it is liable to be set aside and the appeal is to be allowed. In the Result, the First Appeal is allowed. Home for All Developer Ltd. -Vs.- Quazi Harunul Hoque and others. (Civil) 15 ALR (HCD) 218-224 Code of Civil Procedure [V of 1908] Order 7, rule 11, clause (a) No action was taken pursuant to the Memo impugned in the writ petition. Therefore, the writ-petitioners had no cause of action to invoke the writ jurisdiction. Though the provisions of Code of Civil Procedure are not as such applicable in the case of a writ petition, the principle of the provisions of the Code of Civil Procedure can be borrowed in deciding a writ petition like the provisions of Order VII, rule 11, clause (a) thereof. The Appellate Division observed that in the absence of the cause of action, the writ petition was not maintainable in law and therefore, the High Court Division did not commit any error of law in discharging the Rule Nisi on the view that the writ petition was not maintainable. In the context, the High Court Division rightly relied upon the case of Kamaluddin Md. and another -Vs- Bangladesh and others, 56 (AD) 212. However, the Appellate Division is of the view that if any action is taken affecting the right of the petitioners in the lands in question pursuant to the memo impugned in the writ petition, they shall have every right to challenge the said action by resorting to appropriate forum including the writ jurisdiction of the High Court Division. With the above observations, this appeal is dismissed. Rokeya Begum and another Vs. Bangladesh and others (Civil) 15 ALR (AD) 170-176 Order VIII rule 1 & Order XLI rule 12 Right to appear and answer an appeal as given under rule 12 is completely different from that to contest a suit by filing a written statement under rule 8 ( 1 ) of the Code . The appellate Court fell in serious error of law in equating both the rights as same and in allowing the opposite parties to file written statement for the first time in appeal . [ Narayan Chandra Saha and another Vs. Jatindra Chandra Saha and others , 52 DLR 5 ] The purpose of new provision of law embodied in Order VIII to make speedy trial of cases which docs not mean that in case of a bonafide human error , the court will not be in a position to grant leave to file document in unavoidable and exceptional circumstances . [ Kazi Moniruzzaman Vs. Kazi Nuruzzaman ( Civil ) 306 , 58 DLR 2006 ] Order VIII rules 2 and 5 Code of Civil Procedure ( Amendment ) Ordinance ( [ XL VIII of 1983 ) came into force on 5-9-1983 before the judgment which was delivered on 30-8-1984 . Rules 1 and 2 of Order XIII having been repealed on 5-9-1983 are not applicable to the present case . [ Abul Hashem Khan Vs. Shamsuddin Khan 41 DLR 415. The defendant is not required to file the document with the written statement and under the amended rule 5 of Order VIII , the document not filed under the amended rule 2 may be received with the leave of the Court ( Abul Hashem Khan Vs. Shamsuddin Khan , 41 DLR 415 ) If a defendant denies an allegation of fact in the plaint , he must not do so evasively , nut answer the point of substance . [ 2001 CC 942 ] Cause title forms very much a part of the application ( for pre emption ) . Statement made therein should be denied specifically or by implication . [ Idris Mia Vs. Promode Ranjan Das & others , 45 DLR 126 ] Rule . - 4 : Evasive denial.- Where a defendant denies an allegation of The decision of the High Court Division rejecting the prayer of the defendant No. 2 for treating the counter claim as a plaint in the suit cannot be sustained and accordingly set aside . The counter claim filed by the defendant No. 2 is to be treated as plaint in the cross suit in view of the withdrawal of Money Suit No. 21 of 1993 by the plaintiff . Loyal Shipping Ltd Vs. Castrol UK Ltd ( Civil ) 44 , 60 DLR 2008 ] When the claim raised by the defendant as set - off does not exceed the claim of the plaintiff and when such counterclaim filed along with the Written statement exceeds the ' claim of the plaintiff and requisite court fees are paid thereon , this can well be treated as plaint in a cross suit particularly when the plaintiff withdraws his suit . [ Loyal Shipping Ltd. Vs. Castrol U.K. Ud and others 291-296 , 13 MLR 2008 ] Relief must be specifically claimed but in the name of general or other relief the Court cannot mount any surprise on the defendant and make him liable for something which does not arise out of the plaint and , as such , he had no occasion to answer the same . Bangladesh Vs. Sheikh Hasina ( Civil ) 90 , 60 DLR 2008 ] Section 2 ( g ) of the Companies Act , 1994 confers jurisdiction upon the civil court to decide disputes under section 95 and as such the Company Court of the High Court Division can not decide such dispute . [ Abdul Mohit and others Vs. Social Investment Bank Ltd. and others 35 43 , 13 MLR 2008 ] The law favours adjudication of dispute on merits . Imposition of penalty listed under order IX , Rule 2, C.P.C. rests on the discretion of the Court . Such discretion is to be exercised sparingly only in a case of grave negligence and not in routine. [ NLR 1990 Civ . 301 ] Rules 2 , 3 & 4 After restoration of a suit to its original file and number a fresh notice upon the defendant is absolutely necessary in equity and as of right for prevenxing injustice . [ Siddique ( Md ) Vs. Yeakutr Begum and others 49 DLR402 ] Ordinarily failure of Counsel's clerk to inform him aboul the date of hearing of the case will not be regarded as a sufficient ground for his non - appearance but there may be special circumstaices when a clerk's failure may amount to be a sufficient cause . Alfu ( Miah and others Vs. Government of the People's Republic of Bangladesh , 45 DLR ( AD ) 112 ] After rejecting the application for issuance of warrant , without passing further order directing the parties to get ready , passing of the order of dismissal of the suit is hit by Order IX , rule 3 of the Code . { Najabatullah Vs. Alokeshi Namasudra and others , 51 DLR 454 ] Order, VIII, Rule 3- Defendant did not try even to controvert the pleadings of the plaintiffs either before the trial court or before the High Court Division. No suggestion even was ever made to any of the P.Ws. So Appellate Division helds new defence plea that plaintiff could not prove his case is not acceptable. The Appellate Division helds that the defendant bank did not try even to controvert the above pleading of the plaintiffs and this exhibit-11 produced by the plaintiffs either before the trial court or before the High Court Division. No suggestion even was ever made to any of the P.Ws. to the effect that the plaintiffs did not pay against those travellers' cheques or the purchasers did not encash those. The defendant could not return those travellers' cheques or did not make any statement to the effect that they would return those travelles' cheques to the plaintiff bank. So, in these circumstances Appellate Division is unable to accept this new defence plea that the plaintiff could not prove the sale of those travellers' cheques by the defendant bank...... Uttara Bank VS Credit and Commerce Insurance & others, [1 LM (AD) 448] Code of Civil Procedure [V of 1908] Order 8, Rule 9 Amendment to the pleadings It is that an amendment to the pleadings can be made at any stage of the proceedings but such amendment cannot be made if the nature and character of the suit is changed; that the amendment is barred on the date of institution of the suit, that the amendment should be allowed with a view to resolving all controversies over the same subject matter between the parties and this will prevent the multi-fariousness of proceedings; that all reliefs ancillary to the main relief which is in the nature of additional relief should be allowed as general rule. The averments in the plaint and written statements are pleadings, but in respect of amendment of the written statement the Code is a bit more liberal, in as much as, there is also a provision in the code to file additional written statement under Order 8, Rule 9 of the Code Secondly, as regards the question of limitation both the plaintiffs and defendants are not standing on the same footing, inasmuch as, the question of limitation does not arise in case of the amendment of the written statement. Md. Atiqur Rahman - Vs. Khan Mohammad Ameer and others (Civil) 17 ALR (AD) 106-111 Order IX Rules 2, 3 and 4 Notice upon the defendant if necessary after restoration of the suit dismissed for default? Against the exparte dismissal of a suit Under rules .2 or 3 of Order IX of the Code the plaintiff has two remedies open to him: (1) he may bring a fresh suit or (2) he may apply for an order to set the dismissal aside. Since two courses are open to the plaintiff against the exparte dismissal of the suit for default the defendant is not supposed to know the remedy actually availed of by the plaintiff in this regard, unless notified. Moreover, with the dismissal of the suit, albeit exparte, a valuable right accrues to the defendant and that right cannot be taken away without affording him an opportunity of being heard. Since the restoration of the suit took place beyond the knowledge of the defendant, the latter is entitled both in equity and as of right to a fresh notice of the date fixed for hearing of the suit after its restoration. Md. Siddique Vs. Yeakuti Begum, 17 BLD (HCD) 579. Order IX Rules 2,3,6 and 8 with Order XVII Rule 2 Rule 2 of Order IX contemplates absence of both the parties or one of the parties at an adjourned hearing, no matter for what purpose the adjournment was made, and the- Court may proceed under Rule 3 or Rule 6 and Rule 8 as the case may be. Rule 3 applies only when the previous adjournment was granted for any of the purposes mentioned in this Rule and not to a general adjournment. In the instant case, none of the parties took adjournment for taking certain steps to produce witnesses or to do any specific act and the Court itself adjourned the suit for production of witnesses. This adjournment does not bring into operation Rule 3. After receipt of the High Court Division order vacating the order staying all further proceedings of the suit the learned Subordinate Judge ought to have informed the parties through their Advocates about the next date of hearing of the suit. That having not been done, the prayer for restoration of the suit is allowed. Shamsun Nahar Vs Ahmed Piari and others, 17 BLD (HCD) 415. Ref: AIR 1970 (All) 257—Cited Order 9 Rule 4, 13, 41, 27. 49 In the instant case before us we found that actually no notice was served upon the defendants after restoration of the suit on the basis of the order passed in Misc. cases filed under order 9, Rule 4 of the Code of Civil Procedure 1908. Khairun Begum vs Abdul Malik (Md. Hamidul Haque J(Civil) 2ADC 143 Order IX Rule 4 The miscellaneous case allowed on the basis of an application under Order 9, Rule 4 of the Code. No witness was examined and no other material on record in support the application, the impugned order must be held to be patently illegal and arbitratory Ali Akbar Vs Farijuddin and another, 21 BLD (HCD) 388. Order IX rule 5 It provides that the Court cannot dismiss a suit for default for not taking any step by the plaintiff with regard to service of summons returned unserved before the expiry of 3 months. In the present case, the impugned order of dismissal for default was passed before the expiry of the said specified period and as such it is not sustainable in law. Md. Eklas Miah Vs. Monohor All and others, 17 BLD (HCD) 392. Code of Civil Procedure [V of 1908] Order 9, Rule 9-Whether the miscellaneous case filed under Order IX, rule 9 can be dismissed by applying the principle of resjudicata. The question of res judicata cannot be decided at the initial stage because evidence may be required to decide the issue and as such the question should be decided on the basis of evidence after framing issue on the question. The High Court Division held that since the petitioner would get a chance to agitate the questions at time of hearing of the miscellaneous case, the revision merits no consideration. Accordingly, the rule arising out of civil revision Petition having been without any merit is discharged. Dr. Abdul Mukit -Vs. Sk. Md. Ahsanullah and others (Civil) 19 ALR (HCD) 250-255 Order IX, Rule 9 read with Order XLIII, Rule 1(C) Section—151 When an application under Order IX rule 9 of the Code is dismissed for default, it is an appealable order under Order XLIII rule 1(c) but when the case is dismissed not on a default but for non-payment of cost, then such an order can be set aside by invoking section 151 of the Code on acceptance of the costs subsequently. Mosammat Wajeda Khatun and other v. Mosammat Saonatun Bewa, 22 BLD (HCD) 560. Order IX Rules 9 and 13 The party which seeks to set aside an order made ex-parte in a judicial proceeding should be clean in making the ground for setting aside such an order. The Court should not exercise its discretion in allowing such au’ application where the applicant fails to make out a clear case. The Court is required to apply its judicial mind into the facts and circumstances of the case before setting aside an ex-parte decree. Md. Jasimuddin and another Vs. Government of the People’s Republic of Bangladesh, 15 BLD (HCD) 475. Order IX, Rule—9 The principles contained in the Code of Civil Procedure can suitably be applied to the writ proceedings, dealing with civil rights, and as such the provisions of order 9, Rule 9 of the Code of Civil Procedure will be applicable to the writ proceedings, otherwise we shall have to accept an illogical proposition that even after filing a Civil Suit and allowing it to be dismissed default, a suitor shall have still a right to move the High Court Division in its writ jurisdiction on the same facts and for the same relief although he is precluded from filing a fresh suit. Abdul Latif Howlader Vs. Bangladesh Power Development Board and others, 13 BLD (HCD) 479. Ref: Hussain Bakhsh Vs. Settlement Commissioner, Rawalpindi and others, PLD 1970 SC 1, S.A. L. Narayan Rao and anr. Vs. Ishwarlal Bhagwandas and another, A.I.R 1965(SC) 1818. -Cited. Order IX Rule 13 When the findings of the High Court Division are based on correct assessment of the materials on record appellate Division has nothing to interface. Abdul Hai vs Atar Islam (Civil) I ADC 107 Order IX Rule XIII The trial court and the appellate court concurrently found that the petitioners had failed to prove that summons of the original suit was not served upon them and accordingly dismissed the case. Most. Jubeda Khatun vs. Md. Khuda Box & others (M.M. Ruhul Amin J)(Civil) 4 ADC 777 The High Court Division having consid- ered both oral and documentary evi- dence on record found that the lower Appellate Court being the final Court of fact came to correct decision to the effect that the plaintiff-respondents succeeded in proving their right, title and possession in the suit land and are enti- tled to permanent injunction. Abul Kashem vs. Md. Abu Bakar Siddique Khan and others (Syed J. R. Mudassir Husain CJ) (Civil) 4 ADC 779 Rejecting the application for restoration of S.A. No. 302 of 1979 which was dis- missed for default for non-compliance of the court's order dated 19.07.2001. Md. Ohed Ali Mondal & others vs. Minor Mojibur Rahman & others (M.M. Ruhul Amin J)(Civil) 4 ADC 782 It appears that the defendant-petitioners paid only Tk. 15,00,000/00 out of the claim of the plaintiff amounting to Tk. 18,25,000/-and ultimately failed to repay the balance amount with interest and as such we are of the view that the learned Judges of the High Court Division having meticulously considered the evidence. Mr. Abul Hossain and Brothers vs. Rupali Bank Limited (Syed J. R. Mudassir Husain CJ)(Civil) 4 ADC 785 Order IX rule 3 & Order XVI rule 1001 ) ( 3 ) A civil Court can issue warrant of arrest to ensure appearance of any witness or party in a litigation , before it , if the court thinks his presence necessary for final and effective decision in a dispute . [ Najabatullah Vs. Alokeshi Namasudra and others , 51 DI R 454 ] If the court accepts the written statement in exercise of its discretion , it must give reasons for it on failure of which the superior Court will be at liberty to interfere with the decision . In the present case the discretion was exercised rationally . [ KDH Laboratories Ltd. Vs. Pubali Bank , 40 DLR 1 ] Order IX rule 6 and Order XVII rule 2 Ex parte hearing can only be ordered under two instances i.e. under Order IX , rule 6 and Order XVII , rule 2 for filing written statement in default thereof the defendant can still appear and argue his case without the written statement . ( Adamjee Jute Mills Vs. Chairman , Labour Court , 39 DLR 11 ] On 24-7-2001 Miscellaneous Case No. 11 of 2000 ( pre - emption ) was dismissed for default for the cause of non appearance of the pre - emptor . Thereafter on 20-8-2001 Miscellaneous Case No , 21 of 2001 under Order IX , rule 9 of the Code of Civil Procedure was filed within lime . The grounds urged in the application appear to be satisfactory but the learned Judge without assigning any cogent reason disbelieved the grounds of the application and rejected the case . On the contrary , learned Judge of the Court of appeal below without deciding the merit of the application under Order IX , rule 9 of the Code of Civil Procedure decided the merit of Miscellaneous case for preemption which is not at error in the decision occasioning failure of justice in making out a third case . ( Kulsum Khatun Vs. Rahman Sobhan , 14 BLC ( AD ) 2009 ) It will be wholly inequitable to permit the defendants to prove their facts in this Court after 10 years . The defendants must take the consequence for their own laches . [ Red Sun Limited & others Vs. Uttara Bank , 51 DLR ( AD ) 256 ] An important order as the transfer of the case from one Court to another should invariably be communicated to the parties concerned and in making of such communication the signature of the parties or their Advocates should be obtained and when signatures are not obtained , the order sheets should show that the information has been communicated . ( Santi Gopal Dey and others Vs. Maliza Rani Saha and others , 51 DLR 290 ] The Miscellaneous Case under Order IX , rule 13 of the Code was incompetent against the ex parte order passed by the District Judge in Miscellaneous Case No. 28 of 1979 in view of Sub - Article ( 10 ) of Article 27 of President's Order 7 of 1978 , inasmuch as , the said ex parte order was liable to be challenged only by an appeal to the High Court Division . / Safiqueuddin Ahmed ( Md ) and another Vs. House Building Finance Corporation , 53 DLR 80 ] The legislature for realisation of money from the defaulter enacted the provision for depositing 50 % of the decretal amount both in preferring the appeal and in preferring the application under Order IX , rule 13 which cannot be said to be an unreasonable restriction . [ Abdul Gaffar Chowdhury Vs .. Joint District Judge and Artha Rin Adalat & others ( Spl . Original ) 138 , 57 DLR 2005 ] If a party satisfies a Court that summons was not duly served upon him , the Court is bound to set aside the ex parte decree . In such a case , question of knowledge is not at all relevant and ex pane decree will be set aside even if the defendant had knowledge of institution of the suit . [ Regent Ken International Ltd Vs. Amanat Shah Ship Breaking Industries Ltd ( Admiralty Jurisdiction ) 234,57 DLR 2005 ] Plaintiff should not suffer for his pleader's default . It is the pleader's business to attend court regularly . Absence of Counsel is a sufficient cause . The client should not be penalised for the Inches and negligence of his Counsel . Ho being an agent , his negligence is not the negligence of his client . [ Kabir Ahmed Sawdagar Vs. Md Syed Suifuddin Jaheed ( Civil ) 277 , 58 DLR 2006 ] Even if there is no pleading from the side of the defendant alleging non - genuineness of the document on the basis of which plaintiff is claiming the relief in the suit , the Court has a duty in the interest of justice to scrutinise the document ( s ) relied upon by the plaintiff and if on such scrutiny the Court notices elements in the document that make the same non - genuine , in the instant case as noticed by the appellate Court and stated hereinbefore , then in that situation the Court in spite of the absence of the pleading of the defendant as to the non - genuineness of the document of the plaintiff , is quite competent lo make its decision on the basis of result obtained upon scrutiny of the document . [ Bangladesh represented by the Deputy Commissioner Vs. Md Abdul Jabbar Sheikh ( Civil ) 105 , 59 DLR 2007 ] The object of the power granted under the rule is mainly to draw by viva voce examination the real points in controversy between the parties , and thus prevent the real matter in dispute from remaining undecided or left out of consideration. [ AIR 1924 Nag . 191 ] A date fixed in the suit for settlement of issues is a date of hearing fixed for a meaningful hearing . Absence of plaintiff on that date necessarily entails the dismissal of the suit . [ PLD 1991 SC 443 ) Order 9 Rule 13 Learned Joint District Judge upon hear- ing the parties and considering the ma- terials on record allowed the petition by order dated 31.10.2002 awarding com- pensation of Tk.5,000/- in favour of the plaintiff. Chairman, Chittagong Port Authority vs. Safiuddin (Shah Abu Nay- eem Mominur Rahman J) (Civil) 7 ADC 931 Order 9 Rule 4 Defendant-petitioner seeks review of this Court's judgment dated 19.06.2008 passed in Civil Appeal No. 181 of 2005 dismissing the appeal with cost of Tk.10,000/- M.A. Aziz vs. Bangladesh represented by the Secretary (Md. Joynul Abedin J) (Civil) 6 ADC 547 The Code of Civil Procedure 1908, Order IX rule 13 Praying for a decree for eviction of the defendant as licensee. The suit was de- creed ex-parte. Waliullah being dead his heirs vs. Hasina Begum (A.B.M. Khairul Haque J) (Civil) 7 ADC 377 Order IX Rule 13 The suit was decreed on compromise with defendant No. 1 and 2 and ex-parte against the rest by judgment and decree dated 02.09.2002. Then, the defendant Nos.4 to 6 made an application under order IX Rule 13 of the Code of Civil Procedure being Miscellaneous Case No.23 of 2006 for restoration of the suit to its original file and number after set- ting aside the ex-perte decree. Puron Gonju vs. Abdul Haque and others (B.K.Das J) (Civil) 7 ADC 633 Order IX, Rule 13 of the code of Civil procedure (CPC) The suit was filed seeking declaration of title in respect of 4.69 acres of land and confirmation of possession as to part of the land in suit and recovery of possession as to part of the property in suit and for permanent injunction.Mazu Bibi vs Mosammat Rabeya Begum (MD. Ruhul Amin JCivil) 3ADC 702 Order IX, Rule 13 The suit was filed seeking declaration of title in respect of 4.69 acres of land and confirmation of possession as to part of the land in suit and recovery of posses- sion as to part of the property in suit and for permanent injunction.Mazu Bibi vs Mosammat Rabeya Begum (MD. Ruhul Amin J)(Civil) 3ADC 702 Order IX, Rule 13 That the application under order 9 rules 13 of the Code of Civil Procedure was not barred by limitation in the facts of this case as limitation is to be counted from the date of knowledge of defendant No. 8 under Article 164 of the Limitation Act as the summons was not duly served upon her. Ful Meher Bibi dead her heirs Sabura Khatun vs Abdul Wahab (M. M. Ruhul Amin J)(Civil) 2ADC 486 Order 9, Rule 13 For setting aside the ex-parte decree on the ground that the summonses of original suit was not duly served upon the defendants and the names and addresses of the defendants were wrong and the summonses were shown served in collusion with the process server............(2) Enayet Hossain vs. Nur Islam Howlader (M.M. Ruhul Amin J) (Civil) 5ADC 580 Specific performance of contract on the averments that the suit property belonged to the defendant petitioners and the respondent No.3 (the proforma defendant No.5) and they agreed to sell the same to the respondent No.1 at consideration of Tk. 3,00,000/- and he having paid Tk. 1,50,000/- a bainanama was executed whereupon the possession of the suit property was delivered to him and the Petitioners subsequently received further amount from him by executing 'wasil receipt' and the respondent No.1 thus, in total, paid Tk. 2,66,500/- and then he tendering the balance amount requested the petitions and the respondent No.3 to execute and register the sale deed but only the respondent No.3 executed and registered a sale deed in respect of his portion of the suit property and the petitioners refused. Abdul Zakir Khondaker vs. Bimal Kumar Kunda (Md. Tafazzul Islam J) (Civil) 5ADC 583 Order 9 Rule 13 of the C.P.C. Question of abatement may be decided in a forum having civil jurisdiction and accordingly the writ petition is not maintainable. Faroque Ahmed vs. Subordinate Judge, 2nd Court and Artha Rin Adalat No. 1(Md. Tafazzul Islam J(Civil) 4ADC 570 Order 9, rule 13 The trial court, on consideration of the evidence and facts and circumstances, dismissed the miscellaneous case filed by this petitioner. This petitioner then preferred Miscellaneous Appeal No.63 of 2001 in the court of the District Judge, Barisal against that judgment of the trial court. Millon Nayeb vs. Joynal Abedin Mia (Nazmun Ara Sultana J) (Civil) 9 ADC 774 Order IX, Rule 13 On consideration of the materials and evidences on record the trial Court found all the issues against the defendant-petitioners and in particular the case was found to be barred by limitation. Md. Abdul Based Sheikh vs. Md. Jinder Ali Khan (Shah Abu Nayeem Mominur Rahman J) (Civil) 8 ADC 515 Order IX, Rule 13 Filed for restoration of Title Suit No. 103 of 1989 after setting aside the ex- parte judgment and decree dated 7.5.1997. Ijarder Mansur Ahmed vs. Sheikh Musaraf Hossain (Shah Abu Nayeem Mominur Rahman J) (Civil) 8 ADC 454 Order IX, Rule 13- Review- Civil Petition for Leave to Appeal was dismissed on the ground that Miscellaneous Case No.40 of 1997 under Order 9 Rule 13 of the Code of Civil Procedure was filed about 6 years after passing of the ex-parte decree dated 27.08.1991 in Title Suit No.347 of 1982 without any application under section 5 of the Limitation Act for condonation of delay as such an application is to be filed within 30 days from the date of ex-parte decree or within 30 days from the date of knowledge of the ex-parte decree in question. The Miscellaneous Case was filed after a lapse of 11 (eleven) months from the alleged date of knowledge without any application for condonation of delay and the same was accordingly held to be barred by limitation. We do not find any cogent reason to review the impugned judgment. ..... RAJUK VS Momtaz Hasan Chowdhury, [4 LM (AD) 319] Order IX, rule 13- The Appellate Division observed that it is true that the application under Order IX, rule 13 of the Code was filed after 30(thirty) days from the date of the decree, but sufficient explanations were given for filing the same out of time and prayer was made for condoning the delay. But the learned Judge considered nothing. The learned Judge did not also advert the findings and the reasoning of the Subordinate Judge in condoning the delay in filing the application out of time. The only reason assigned by the learned Judge in making the Rule absolute was that the application was filed beyond 30(thirty) days. In the context, the learned Judge failed to consider that section 5 of the limitation was applicable to an application filed under IX, rule 13 of the Code beyond limitation and thus erred in law in interfering with the order of the learned Subordinate Judge. In the result, the appeal is allowed. Kashaituli Jame Mosque Waqf Estate =VS= Md. Abdus Salam & others. [1 LM (AD) 239] Order IX, rule 13- Ex parte decree- Appointment of guardian for the minor defendants. Since they were not properly represented in the suit, the ex parte decree cannot be sustained- The Court Nazir is not a proper person to be appointed guardian of minors. we find from Order No.6 dated 13.11.1989 that the Court guardian submitted a report to the effect that the minors do not have any title or interest in the suit. Such a report is clearly illegal since it is not within the jurisdiction of the Courts Nazir to decide whether any party to the suit has interest in the suit. Also, in submitting such report, he is clearly acting against the interest of the minor defendants. We are satisfied that a substantive legal point has been raised in respect of the appointment of guardian for the minor defendants. Since they were not properly represented in the suit, the ex parte decree cannot be sustained, and is thus liable to be set aside. The appeal is allowed. The trial Court is directed to proceed with the trial of the suit in accordance with law after serving summons upon the plaintiff and all the defendants. Hoque ..Anowarul =VS Mohammad Tafazzal Mondal, [9 LM (AD) 305] Order IX Rule 13- The remedy under Order IX Rule 13 of the Code of Civil Procedure is not available if the appeal is disposed of prior thereto. But before disposal of the appeal trial Court which passed the ex-parte decree against defendant Nos.2 to 5 is competent to hear and dispose of an application filed under Order IX Rule 13 of the Code of Civil Procedure. President Order No.142 of 1972 in unequivocal terms stated in Article 6 that no person shall, without joining the Government which shall be a necessary party, file or proceed with any suit for specific performance of contract relating to transfer of immoveable property or for declaration of title to, or assertion of ownership of any such property. Defendant No.1, Government of Bangladesh, represented by the Deputy Commissioner, Gazipur was impleaded in the suit as proforma-defendant No.2 in violation of President's Order No.142 of 1972. This civil appeal is dismissed without any order as to costs. ...Jamuna Builders Ltd. =VS= Government of Bangladesh, [9 LM (AD) 308] Order IX Rule 13 and Order XLIII, rule 1(d)- When the earlier suit was decreed ex-parte, the present plaintiffs had the choice of one of three avenues: to file an application under Order IX rule 13 of the Code, to file an appeal or to file a separate suit. In this case the present plaintiffs chose to file a miscellaneous case under Order IX rule 13 of the Code. It was held that dismissal of Miscellaneous Case No.111 of 1981 was appealable under Order XLIII, rule 1(d), accordingly Miscellaneous Case No.119 of 1982 was rejected as not maintainable. In spite of the finding that the application under Order IX, rule 9 did not lie, the present plaintiffs filed revision before the learned District Judge, which having been dismissed, they filed Civil Revision No. 1033 of 1987 before the High Court Division. It cannot be said that the present plaintiffs were not aware that the dismissal of Miscellaneous Case No.111 of 1981 under Order IX, rule 13 was appealable. The present suit was filed on 04.09.2008, about 26 years after Miscellaneous Case No.111 of 1981 under Order IX, rule 13 of the Code was dismissed for default. It is abundantly clear that the present plaintiffs have acted with mala fide from the very beginning. The present suit is hopelessly barred by limitation as well as the principles of res- judicate. ...Syed Rafiqul Islam =VS= A.K.M. Aminul Haque, [10 LM (AD) 69] Order IX, Rule 13- Exparte decree- When Title Suit (No.46 of 1991) was decreed ex-parte and a suit was filed for setting aside the said exparte decree, the question of rejection of the plaint of the suit did not arise at all. .....Md. Noor Hossain & others =VS= Mahbuba Sarwar & others, [1 LM (AD) 341] Order IX, Rule 13- Ex-parte decree- An ex-parte decree will be set aside if it is found that there was no service of summons on the defendant- Process server most examine by the Court, but in the instant case the process server was not adduced to examine by the Court, even then, the trial Court found from record that there are some anomalies in the serving of the summons In a suit for setting aside the ex-parte decree, in a case of service by hanging because of alleged refusal by the plaintiff appellant to receive notices, where the names and addresses of the mukabila witnesses were not noted in the service reports by the process server, it is the settled principles of law from the long line of catena, obviously process server most examine by the Court, but in the instant case the process server was not adduced to examine by the Court, even then, the trial Court found from record that there are some anomalies in the serving of the summons, such facts would lead to disbelieve the service which is devoid of the essential information as requires by law. But the learned Single Judge of the High Court Division failed to appreciate the above legal proposition. Thus, committed serious error of law point occasioning failure of justice. The judgment of the High Court Division is hereby set aside. Directed to conclude the trial as early as possible preferably within 1(one) year from the date of receipt of this judgment positively. ...Azirun Nessa(Most.) =VS= Sree Arun Chandra Biswas, [10 LM (AD) 332] Code of Civil Procedure [V of 1908] Order 9 Rule 13 State Acquisition and Tenancy Act, 1950 Section 96 When the order allowing pre-emption was passed on 13.05.1992 Bashanta Kumar and Chandra Kumar had no coownership in the case holding and therefore their successors had no locus standi in the pre-emption case. The appellate Court set aside the order of the trial Court upon holding that the right to preemption must subsist till the conclusion of the pre-emption case. When the case was decided by the trial Court on 13.05.1992 Chandra Kumar and Bashanta Kumar no longer owned any land in the case jote and therefore they had no subsisting right to pre-empt the case land. The High Court Division observed that when the order allowing pre-emption was passed on 13.05.1992 Bashanta Kumar and Chandra Kumar had no co-ownership in the case holding and therefore their successors had no locus standi in the pre- emption case. The Appellate Division finds that the appellate Court has properly set aside the order of the trial Court and the High Court Division correctly affirmed the judgement and order of the appellate Court. In view of the above discussion, the Appellate Division finds that the impugned judgement and order does not suffer from any illegality or infirmity and does not call for any interference by the Appellate Division. Accordingly, the civil petition for leave to appeal is dismissed. Abdul Matin and others Vs. Abu Siddique and others (Civil) 23 ALR (AD) 33 Code of Civil Procedure [V of 1908) Order 9 Rule 13 The defendant No. 10 filed written statement to contest the suit, but the suit was transferred to the court of Subordinate Judge and Artha Rin Adalat No. 1, Dhaka beyond his knowledge and he was not notified at all about that transfer of the suit by either of the courts. There is no evidence or material on record to show that this defendant No. 10 knew about the transfer of the suit and he willfully remained absent in the court when the suit was taken up for peremptory hearing. The High Court Division, obviously, committed wrong in making observation and finding that none of the defendant-petitioners filed written statement in the original suit and was diligent in proceeding with that suit and in restoring the impugned ex-parte decree on such erroneous observations and findings. The Appellate Division is of the opinion that the trial court rightly allowed the Miscellaneous Case No. 24 of 2001 filed by the defendant No. 10 and rightly set aside the ex-parte decree restoring the Title Suit No. 63 of 2001 to its original file and number. Since the Title Suit No. 63 of 2001 was a suit for partition it will be restored as a whole and the other defendants also including the defendant-petitioners of Civil Petition for Leave to Appeal No. 866 of 2009- will get opportunity to contest the suit. Both the Civil Petitions for Leave to Appeal Nos. 866 of 2009 and 867 of 2009 are disposed of with the above observations. The impugned judgment of the High Court Division is set aside. Md. Abdul Hafiz and others Vs. Setara Begm and others (Civil) 23 ALR (AD) 84 Code of Civil Procedure [V of 1908] Order 9, rule 13 When a date is fixed by the Court parties are to be notified, especially if any interim order was passed on an "off- date". The Court ought to have heard the case on the date already fixed for hearing. There was sufficient reason for non appearance of the defendants on date subsequent to 02.05.2005, since th matter did not appear in the cause list of the date fixed, i.e., on 23.05.2005. Accordingly, the order of the trial Court allowing the miscellaneous case under Order IX, rule 13 is affirmed. It appears to the Appellate Division that the defendant appeared in the suit and filed written statement and subsequently on 02.05.2005 an application was heard for addition of party and the same was allowed. The next date was fixed for hearing on 23.05.2005. However, the matter was again taken up on 06.05.2005 before the set date and thereafter the matter was fixed for SD (settling date) on 28.06.2005. It appears that the matter was not taken up at all on 23.05.2005 which was a regular hearing date. It is not surprising, therefore, that the defendant did not appear in any of the subsequent hearing dates as they would have been taken off the track. Ultimately the suit was decreed exparte. When a date is fixed by the Court parties are to be notified, especially if any interim order was passed on an "off-date". The Court ought to have heard the case on the date already fixed for hearing. i.e. 23.05.2005 and should have notified subsequent dates fixed for the case. It appears that since the defendants diligently proceeded in the suit and not only appeared, by filing written statement but also suggested issues to be framed, there is no explanation for their subsequent non- appearance in the suit other than the fact that the case listing was derailed and instead of the case appearing on the fixed date on 23.05.2005, it appeared on an off- date, i.e., 06.05.2005, and the date originally fixed was totally missed out. The case was then listed for further order on 28.06.2005 but the case never appeared before the Court on 23.05.2005. From the record it transpires that none of the Courts including the High Court Division noticed the said anomaly. The Appellate Division is of the view that there was sufficient reason for non-appearance of the defendants on dates subsequent to 02.05.2005, since the matter did not appear in the cause list on the date fixed, i.e., on 23.05.2005. Accordingly, the order of the trial Court allowing the miscellaneous case under Order IX, rule 13 is affirmed. The judgement and order of the High Court Division passed in Civil Revision No. 35 of 2008 affirming those of the learned District Judge is hereby set aside. The suit shall proceed in accordance with law and be disposed of expeditiously. With the above observations and directions the civil petition for leave to appeal is disposed of. Ayesha Khatun Vs. Jalalabad Co- operative Housing Society Limited. Chittagong and others (Civil) 22 ALR (AD) 30 Code of Civil Procedure [V of 1908] Order 9 Rule 13 A defendant against whom an ex parte decree has been passed can either file an appeal against the decree, or file an application for review or pray for restoration of the suit under Order IX Rule 13. These remedies are all concurrent and independent. An application under Order IX Rule 13 of the Code of Civil Procedure can be heard notwithstanding the pendency of the appeal arising out of the same decree. It makes no difference that the application is made by one defendant and the appeal has been filed by another defendant. President Order No. 142 of 1972 in unequivocal terms stated in Article 6 that no person shall, without joining the Government which shall be a necessary party, file or proceed with any suit for specific performance of contract relating to transfer of immoveable property or for declaration of title to, or assertion of ownership of any such property. The Appellate Division observed that where the ex parte decree has been confirmed or otherwise disposed of on appeal, the Court passing the decree ceases to have jurisdiction to hear the application for restoration even though the application was filed before the appeal was filed as its decree merged in the appellate decree. The same principle will hold good even if the appeal has been preferred by a party other than the defendant against whom the decree was passed ex parte. (emphasis supplied) In this connection reliance may be placed on the case of Md. Wasiq Khan Vs. Md. Sakib Chan and others (1979) 31 DLR (AD) 57, has been held in paragraph-18 as under 8. On a review of the decisions and the scussion on the question set out, the ollowing propositions seem to be well ettled: Where a defendant against whom en exparte decree is passed applies under Order 9, rule 13 of the Code of Civil Procedure to set it aside and at the same time prefers an appeal from it, the Calcutta High Court has held that notwithstanding the pendency of appeal the original court may proceed with the application. Damodar vs. Sarat Chandra 13 CWN 846 and Kumud Nath vs. Jathindra Nath, 38 Calcutta 394. The Allahabad High Court has also taken the same view. Mathura vs Ram Charan, 37 Allahabad, 208, Gajaraj Vs. Swaminath, 39 Allahabad, 13: Humani vs. Azizuddin, 39 Allahabad, 143. The extreme position taken by Madras High Court in Sankar vs. Subdrajan, 30 Madras, 535 has not been followed by other High Courts. Where the exparte decree has been confirmed or otherwise disposed of on appeal the court which passed the exparte decree has no longer any power to entertain an application to set it aside, even though the application was made before the appeal was filed. Mathura vs. Ram Charan. 37 Allahabad, 208. The same principle will hold good even if the appeal has been preferred by a party other than the defendant against whom the decree was passed exparte provided the decree was one and indivisible. Dhonai Sikder vs. Tarak Nath, 12 CLJ 53. But it will not affect the case of the defendant against whom exparte decree was passed and whose claim was not subject matter of appeal although he might be made party as respondent in the appeal. Abdul Jalil Bhuiyan vs. Majibar. 12 DLR 581. The remedy under Order IX Rule 13 of the Code of Civil Procedure is not available if the appeal is disposed of prior thereto. But before disposal of the appeal trial Court which passed the ex parte decree against defendant Nos. 2 to 5 is competent to hear and dispose of an application filed under Order IX Rule 13 of the Code of Civil Procedure. President Order No. 142 of 1972 in unequivocal terms stated in Article 6 that no person shall, without joining the Governmen which shall be a necessary party, file o proceed with any suit for specifi performance of contract relating to transfe of immoveable property or for declaration of title to, or assertion of ownership of an such property. In the case in han defendant No. 1. Government Bangladesh, represented by the Deput Commissioner, Gazipur was impleaded the suit as proforma-defendant No. 2 in violation of President's Order No. 142 of 1972. In the light of the findings made before, the Appellate Division does not find any substance in this appeal. Accordingly, this civil appeal is dismissed without any order as to costs. Jamuna Builders Ltd Vs.- Bangladesh and others. (Civil) 21 ALR (AD) 01-06 Order 9 Once the defendant denies service of summons upon him the whole onus shifts to the plaintiff to prove in fact summons was duly served. Wazed vs Afsar. 16 BLD (AD) 4: 1 BLC (AD) 179; and when the court is satisfied that there was no due service of summons, it is bound to set aside the ex-parte decree. Abdur vs Ahdul. 35 DLR (AD) 163: 4 BLD (AD) 83: 1983 BCR (AD) 207; Yousuf vs Araj 3 BLC 283, Hyder vs Razia 12 BLC (AD) 75; Regen vs Amanat. 57 DLR 234; and in that case defendant had the knowledge of the suit is not at all relevant. Juran vs Rabindra. 5 BLD 126; Moynul vs Nazmul. 10 BLD 151: Zarina vs Nazma. 2 BLC 183; or mistaken use of provision of law will not debar to get appropriate relief. Chand vs Seraj 7 BLD 117. and the only discretion left to the court is to impose condition "as to costs, payment into court or otherwise as it thinks fit" Afil vs Ayatulla. 6 DLR 461; but where summons was duly served the defendants are tto prove their initial date of knowledge of the ex parte decree. Shamsun va Salauddin, 4 BLC (AD) 285. The remedy by way of an appeal as well as by way of an application under rule 13 are hoth open to a person against whom an ex parte decree is passed and in the appeal he can take a ground that he had sufficient cause for his non-appearance when the suit was called on for hearing Eshaque va Afzul. 13 DLR 115. No ex parte decree would be set aside when the defendant fails to bring home either of the two grounds. (due service of summons or sufficient cause for non-appearance at the hearing). Alfu vs Government of Bangladesh. 45 DLR (AD) 112. Expression "sufficient cause has not been defined in the Code, It is to be gathered from the facts and circumstances of the case. Momena vs Abu. 1982 BCR 203; Gulshan vs Moazzem. 43 DLR 481; Sharif vs Jharna. 47 DLR 307: Ex parte decree cannot be set aside merely on the ground that the claim was false. Ananta vs Jamini, 4 DLR 487; or on the ground that the ex parte decree was obtained on perjured evidence Government vs Md 11 BLC (AD) 10; or on the ground of a settlement between the parties as the court has no jurisdiction to set aside an ex parte decree without being satisfied with the non-service of summons. Asmat vs Kiron. 13 DLR 542: Insan vs Mir. 40 DLR (AD) 193; Gulshan vs Moazzem. 43 DLR 481: or under section 151. Reazul vs Afiz. 10 BLD (AD) 44:42 DLR (AD) 74; or on terms of cost. Shamsu vs Dhirendra. 2 BLC (AD) 96. Contra: As the ex parte decree has been set aside on payment of compensatory cost, it is not a fit case for interference Jamal vs Mantu 49 DLR (AD) 150: [Contra: ex parte decree was set aside on terms of cost, but not on any ground of sufficient cause which a Court cannot exercise under its inherent power. Shamsul vs Dhirendra, 2 BLC (AD) 96; and when the plaintiff accepted the compensatory cost, he cannot subsequently attack the court's order setting aside the ex parte decree. Mokles vs Wazlullah. 19 BLD 387: 31 DLR 418 An application under rule 13 or a review under Or. 47 or an appeal are concurrent remedies against an ex parte decree, Madan vs Nurul. 31 DLR 372: Ayezuddin vs Karim. 10 BLD 139: 42 DLR 154, of these three remedies, the remedy hy way of an appeal is the widest and when an appeal is dismissed there will be no remedy available. Abdul vs Jobeda. 12 BLD (AD) 1:44 DLR (AD) 37, but the trial court shall have jurisdiction to entertain the application even if the appeal has been disposed of. Makhan vs Joytun. 16 DLR 130, or when the appeal is pending (however subject to limitation) Wasiq vs Sabiq 31 DLR (AD) 51; or the appellate Court shall have jurisdiction to entertain the appeal even if the application under rule 13 has been dismissed. Md vs Afzal 13 DLR 115; or when ex parte decree has already been executed. Santosh vs M.. 36 DLR (AD) 248: 5 BLD (AD) 59: except where the issue of non-service of summons has been decided by the appellate court. Atul vs Bhagabati. 18 DLR 81; or where the trial court's ex parte decree is marged in the appellate court's decree. Sayeda vs Mostafa, 28 DLR 221, Wasiq vs Sabiq. 31 DLR (AD) 51. Makhan vs Joytun. 16 DLR 130, Abdul vs Mojibar, 12 DLR 581. The onus to prove the due service of summon is on the plaintiff, but if the summons is served in accordance with the rules, then onus shifts to the defendant. Insan vs Mir. 40 DLR (AD) 193. Examination of the proces-server is not nexessary when he submits his report with declaration or verification, but if he does not do so, his examination is mandatory. Insan vs Mir. 40 DLR (AD) 193. Order of dismissal for default of a miscellanious case under r.13 cannot be interfered with under $.151. Kazi vs Government of Bangladesh. 10 BLD 365, Abdul Kader vs Nurul 11 BLD (AD) 1 43 DLR (AD) 128; as the order is appealable under Or.43. M. vs Assistant Deputy Custodian. 37 DLR 287; except in case of mistake of the court itself or its officer where S.151 is applicable Abdu vs Abdu. 32 DLR 51. and in appeal under Or 43, the appellate court may restore the miscellaneous case and not the original suit. Dilwar vs Nani 42 DLR 497; but against an ex parte order setting an ex parte decree, the plaintiff can get relief under section 151. Surbeswar vs Fakir 14 DLR 256; or a defendant can get relief under section 151 if his case filed under rule 13 is dismissed not for default, but for non-payment of cost. Wajeda vs Saonatun. 22 BLD 560: 55 DLR 460. Plaintiff should not suffer for his pleader's default. Kabir vs Mid 58 DLR 277. Pleader or his clerk did not inform the defendant in time is a sufficeint cause. Daraj vs Hafiz. 18 DLR 481; plaintiff not to suffer for his pleader's default. Seth vs Mohammadi. 17 DLR (SC) 487; Surjalal vs Imam. 6 BLD 152. Lawyer was engaged in the High Court is a sufficient cause for setting aside an ex parte decree Subarna vs Overseas. 34 DLR 142; but no hard and fast rule can be laid down as to whether engagement of a lawyer in another Court is or is not a sufficient ground and every case must be considered in the background of the facts and circumstances of that case. PDB vs Sonali Bank 35 DLR 157; after considering the facts and circumstances of the case restored the case filed under rule 13. Khaleda vs Nurul 42 DLR (AD) 48. The party who wants an ex parte decree to be set aside should be clear in making out the grounds. Jasim vs Government of Bangladesh. 47 DLR 585. Defendant must made out a case of sufficeint cause. Sonali Bank vs Mozaffar. 50 DLR 174, Absence of a witness cannot be a ground for non-appearance of the defendant. Sodharan Bima vs BIWTC 7 BLD 398. Delay in filing the case under rule 13 was explained in the application and the delay was condoned, though in the instant case prayer for condonation was not expressly made; Chowdhury 594; or though in another case separate vs Shamsuddin. 40 DLR 10:, Habib vs M 6 BLC application for condonation of delay was not made. Mozaffar vs Saleh. 8 BLD 331 40 DLR 239: Ahmed vs Amir 9 BLD 427. When some elements of fraud and collusion are found, the court is not to sustain that decree even when the application for setting aside the decee is barred by limitation. Government of Bangladesh vs Mashiur. 50 DLR (AD) 205. But where summons and registered notices were duly served it is incumbent upon the defendant to explain as to why the ex parte decree was sought to be set aside after six years. Shamsun vs Salauddin. 4 BLC (AD) 285; but it will be wholly inequitable to permit the defendants to prove their facts in this Court after 10 years, they must take the consequences for their own latches. Red vs Uttara Bank 51 DLR (AD) 256. Proviso to rule 13 can be invoked for setting aside an ex parte decree as a whole by any of the defendants. Kheraj vs Ashraf. 12 BLD 221 Rule 12 cannot be employed to force an old and respectable person to appear in person upon the demand of the plaintiff in order to make an oath in support or otherwise of the plaintiff's case, Section 9 of the Oaths Act says that no party or witness shall be compelled to attend for that purpose, lomail va Aldu. 12 DLR (SC) 261. Pre-emptor was ordered to be present in person on the date of peremptory hearing, but the court allowed the pre-emptor to be represented by his attorney. Guru vs Zakir 36 DLR 160 On defendant's failure to appear in person in obedience to an order under Or.3, 1.1, the court may strike out the defence. Sheo vs Ghirruo. AIR 1928 Oudh 262; but if a party desires the appearance of his opponent as a witness, he must take out summons under Or. 16 and not the one under Or.3, 1.1. Appavoo vs Sornammal. AIR 1933 Mad 821 Under rule 14 plaintiff-decree-holders are only the opposite parties upon whom notices are required to be served. A vs Abdul. 8 BLC 33 Defendant is not entitled to a notice of the date of next hearing where the decree has been set aside at his instance. Abdu vs Amir. 17 DLR 310. Code of Civil Procedure [V of 1908] Order 9 Rule 13 read with section 151 For setting aside the ex parte decree When there is an allegation of fraud alleged to have been committed the Court should have restored the suit to its original file and number after setting aside the ex parte decree by resorting to the provision of section 151 of the Code of Civil Procedure. The Appellate Division is of the view that because of fraud practised upon the defendant-appellants, they could not contest the suit and as such, they were prevented by sufficient cause from appearing before the Court when the suit was called on for hearing. Accordingly, the appeal is allowed and the impugned judgment delivered by the High Court Division affirming the judgment and order dated 16.03.2005 passed by the learned Additional District Judge, Fifth Court, Chittagong in Miscellaneous Appeal NO. 05 of 2005 affirming the judgment and order dated 02.11.2004 passed by the learned Joint District Judge, First Court, Chittagong in Miscellaneous Case No. 565 of 2004 is set aside. Other Class Suit No. 104 of 2001 of the Second Court of the then Subordinate Judge, Second Court, Chittagong, is restored to its original file and number. The trial Court is directed to dispose of the suit as expeditiously as possible preferably within 6 (six) months from the date of receipt of a copy of the judgment. There is no order as to costs Government of Bangladesh and others Vs. Jamila Khatun, and others (Civil) 19 ALR (AD) 161-163 Order IX Rule 13 When the defendant satisfies the court that summons was not duly served upon him the court is bound to set aside the ex-parte decree. The service of summons is an essential condition which must be satisfied before a court can proceed to pass an ex-parte decree. Md. Abul Hossain and others Vs. Niranjon Mondal and others, 14 BLD (HCD) 442 Ref: Juran Chandra Mondal. Vs. Rabindra Nath Mondal, 5 BLD (HCD) 126; Md. Abdur Rashid and another Vs. Abdul Bank and another, 4 BLD(AD)83-Cited. Order IX Rule 13 ‘Prevented by sufficient cause’ When the petitioner adduced corroborative evidence, incitiding medical evidence, to prove that she was ill during the relevant period that prevented her from appearing in the court on the fateful day and the opposite party led no evidence to rebut the petitioner’s evidence, the learned trial court erred in law in disallowing the application under Order 9 Rule 13 C. P. C. without recording any finding as to whether the petitioner was prevented by ‘sufficient cause’ from appearing in the court when the case was taken up for exparte disposal. Sreemoti Shova Rani Dhar Vs. Amulya Ranjan Dhar being dead his heirs; 1 (a) Gita Rani Dhar and others 14 BLD (HCD) 513. Order IX Rule 13 The decree holder after accepting the cost without protest cannot subsequently attack the courts order setting aside the ex-parte decree. In the instant Case, the petitioner has accepted the compensatory cost of Tk. 2000/- awarded by the learned Assistant Judge who after payment of compensatory cost set aside the ex-parte decree and restored the original suit to its original file and number. Since the decree holder petitioner accepted the cost, so he cannot attack the courts order for setting aside the ex-parte decree as the petitioner cannot approbate and reprobate at the same time. Md. Muklesur Rahman Vs. Waziullah, 19 BLD (HCD) 387. Ref: AIR 1938 (Madras) 603-relied upon. Order IX Rule 13 When a suit is decreed ex-parte, the defendant may apply to the court by which the decree was passed for an order to set aside the decree and if Court is satisfied that either summons was not served or that the defendants were prevented by sufficient cause from appearing when the suit was called on for hearing. Md. Habibur Rahman and others Vs Md. Abdur Rashid and others, 21 BLD (HCD) 227 Order IX Rule 13 Setting aside ex-parte decree When it is found that summons has not been duly served upon the defendants the Court is bound to set aside the ex-parte decree. The general rule is that on an application under Order 9 Rule 13 of the Code the Court is competent to set aside an ex-parte decree as against the applicant alone but if it is found that the decree in question is indivisible one, in that case the Court has no alternative but to set aside the entire decree even though the decree was passed against some of the defendants on contest on merit. It is also well settled that even if the decree is divisible the Court, in consideration of the nature of the suit -and the decree, is competent to set aside the decree as a whole in the interest of justice. The determining factor is the nature of the decree and not the reasons behind the decree. Rezaul Karim Vs. Halima Be gum and others, 18 BLD (HCD) 96. Ref: 35 DLR(AD)162; A.I.R. 1960 (Bom) 485 ;—Cited. Order IX Rule 13 An application by the legal representatives of a deceased defendant, if maintainable? In this case defendant No. 18 was dead when the preliminary decree was passed. If defendant No. 18 was alive he would have the remedies open to him against the exparte decree: (1) to file a regular appeal or (2) to prefer an application under Order IX Rule 13 of the Code and, if so chosen, he could simultaneously pursue both the courses. Opposite parties, who are the legal representatives of (1899) 21A11 deceased defendant No. 18 and stepped into his shoes on his death, do have the right to pursue any claim which their deceased predecessor-in-interest could have pursued. The application under Order IX Rule 13 of the Code is therefore maintainable in law. Rahima Khatun Vs Md. Nurul Hoque and others, 17 BLD (HCD) 329 Ref: AIR 1923 (All) 30; 274;—Cited. Order IX Rule 13 In deciding a case under Order IX rule 13 of the Code the Court is required to consider two questions: (1) whether summons was duly served upon the defendant and (2) whether the defendant was prevented by any sufficient cause from appearing when the suit was called on for exparte hearing. When one of the two conditions is fulfilled the Court is bound to set aside the exparte decree. Md. Siddique Vs. Yeakuti Begum. 17 BLD (HCD) 579. Order IX, Rule 13 A miscellaneous case under Order 9 Rule 13 of the Code of Civil Procedure does not abate far non-substitution of the heirs of the deceased plaintiff. Sharif Ullah Patwary and others vs. Jharna Dhara Chowdhury and another, 14 BLD (HCD) 257. Ref: 25DLR 91-Cited Order IX Rule 13 In an application under Order IX Rule 13 of the Code f Civil Procedure for setting aside an exparte decree on the ground of non- service of summons, the prime consideration before the Court is to satisfy itself as to whether the plaintiff has been able to prove that summons was duly served upon the defendant. Once the defendant denies service of summons upon him the whole onus shifts to the plaintiff ‘ho has to prove satisfactorily that summons was in fact duly served. Since the finding of the trail court as to non-service of summons cannot be said to be unreasonable and perverse, the High Court Division erred in law in setting aside that finding entering into a question of fact while exercising revisional jurisdiction. Md. Wazed Ali Sardar Vs. Md. Afsaruddin Sardar and others, 16 BLD (AD) 4. Code of Civil Procedure [V of 1908] Order 9 Rule 13A read with section 115(1) Since the exparte decree was passed on 15.05.2001 and restoration petition was submitted on 11.04.2002 almost 11 month after the date of the impugned exparte decree, the restoration petition may be allowed with cost of Taka 2000/- (two thousand) directly setting aside the exparte decree dated 15.05.2001 as per provision incorporated in Order IX Rule 13A of the Code of Civil Procedure. 1908. The High Court Division is unable to accept the submission of the learned Advocate for the opposite parties in that as per order of exparte decree dated 15.05.2001, it appears that the original suit was earlier fixed for per-emptory hearing. But without filing written statement and framing issues there is no scope to fix a suit for peremptory hearing. So, the submission of the learned Advocate for the petitioner that processes were not duly served is nou also correct. However, since the exparte decree was passed on 15.05.2001 and restoration petition was submitted of 11.04.2002 almost 11 month after the date of the impugned exparte decree, the restoration petition may be allowed with cost of Taka 2000/- (two thousand) directly setting aside the exparte decree dated 15.05.2001 as per provision incorporated in Order IX Rule 13A of the Code of Civil Procedure, 1908. In view of the above facts and circumstances of the case, the High Court Division is of the opinion that ends of justice would be met best if the Rule is made absolute with cost of Tk. 2000/- (two thousand). Accordingly, the Rule is made absolute. Md. Alamin Khodgir Vs. Sreemoti Shebadini Barmon and others. (Civil) 23 ALR (HCD) 25 Order VI rule I and Order XII rule 6- Admission, ambit of-Decree on admission­- Written objection filed in an interlocutory matter would not be a part of the pleading of the parties in the suit but if there is an admission in the written objection it would be regarded as an admission. The expression "or otherwise" under rule 6 of Order. XII would empower the Court to see the admission made elsewhere in the proceeding during the trial and should not be confined only to written statement. The decree, as passed on admission made otherwise than in written statement, is in accordance with law and need not be interfered with in exercise of revisional jurisdiction. A Elahee & Co vs MM Aziz 44 DLR 131. Code of Civil Procedure [V of 1908] Order 6 Rules 1, 14 and 15-Pleading application for withdrawal of the suit was required to be Whether the signed by the plaintiff- respondent. Whether the same also was required to be verified by her or supported by an affidavit and whether the statements of the plaintiff was needed to be recorded before passing the order allowing her to withdraw the suit with permission to sue afresh. The Appellate Division observed that Rule 14 of Order VI of the Code has clearly provided that every pleading shall be signed by the party and his pleader (if any). The rule also provides that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf. Rule 15(1) of Order VI has provided that save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (Sub-rules (2) and (3) of rule 15 are not relevant for the present purpose). And according to rule 1 of Order VI "pleading" shall mean plaint or written statement. So, by stretch of imagination, the no application for withdrawal of a suit can be treated or termed as pleading. Therefore, the Appellate Division does not see the requirement of verification in the application for withdrawal of a suit as found by the learned Additional District Judge and the learned Judge of the High. Court Division. In this regard, it may be also stated that the applications/petitions which would require affidavit in support of the prayer made therein have been specifically mentioned in the Code such as, prayer for attachment before judgment under Order XXVIII, rule 5, prayer for temporary injunction under order XXXIX, rule 1 of the Code. But nowhere in Order XXIII, sub-rules (1) and (2) of rule 1, which have dealt with withdrawal of suit or abandonment of part of claim the phraseology "affidavit" has been referred to or mentioned, when the Code is silent about the necessity or requirement of any verification or affidavit to make a prayer for withdrawal of a suit, the Court could not impose such a condition to file an application for withdrawal of a suit. So, the Appellate Court and the High Court Division were apparently wrong in finding that the application for withdrawal of the suit in Partition Appeal No. 13 of 1964 was defective as the same was not verified by the plaintiff or supported by any affidavit. Md. Abdur Rahman Pramanik and others Vs.- Most. Alefa Bewa and others (Civil) 15 ALR (AD) 211-221 Order VI rules I & 2 and Order VII rule I- The purpose of pleadings is to pinpoint the matters of controversy between the contending parties for enabling them to meet their respective claims. If at the trial the plaintiff fails to prove some of his allegations, that does not necessarily mean that the suit shall fail. The fate of the suit depends on the overall evidence and materials on record. Sonali Bank vs Hare Krishna Das and others 49 DLR 282. Order VI rule 2- It is the substance and not the form of the plaint which is to be looked and considered and Mufussil Court's pleadings are to be construed liberally. Zamir Uddin Ahmed vs Jiaul Huq and others 49 DLR 622. Order VI rule 2, Order XVIII rule 17- The Code has given enabling power to the Court to recall a witness. All the evidence and documents under the possession of the plaintiff to be relied upon at the time of hearing of the suit need not be mentioned in the pleading. Registrar (Deputy Secretary) vs Sahrab Jan and others 48 DLR 214. Code of Civil Procedure [V of 1908] Order 6 Rule 2 Order VI Rule 2 of the Code of Civil Procedure, which does not require the names of witnesses to be specified in the plaint. The Appellate Division held that since the appellate Court did not reverse the finding of the trial Court with regard to the amalnama and dakhila, they stand as evidence of title of the defendants. In this regard the S.A. record in the name of the defendants is consonant with the amalnama and dakhila, both issued by the landlord The reasons attributed by the appellate Court for not believing the veracity of the amalnama and dakhilas, namely that they were not registered or written on stamp paper or on printed form, is not tenable, since there is no legal necessity for those documents to be in the form mentioned by the appellate Court. The reasons given by the appellate Court for disbelieving the documents are flimsy and not tenable. Another reason given by the appellate Court for disbelieving those documents is that the name of the witnesses deposing in support of those documents was not mentioned in the plaint. However, such a requirement is not contemplated by Order VI Rule 2 of the Code of Civil Procedure, which does not require the names of witnesses to be specified in the plaint. The observation of the appellate Court is, therefore, contrary to law. Asgor Ali and others -Vs. Noorjahan and others (Civil) 21 ALR (AD) 46-50 Order VI rule 5- Purpose of filing further and better statement is to elucidate the pleadings and not to amend the same by adding new claim or defence which was not in pleading. Fatick Chandra Dey and others vs Dipok Kumar Dey and others 556. Order VI rule 7- The trial Court allowed the plaintiff to introduce a new story (in his deposition and by production of documents) without amending the plaint itself-Not permissible in law. Ranjit Kumar Rakshit vs Sudhir Kumar Chowdhury 38 DLR 39. Code of Civil Procedure [V of 1908] Order 6 rule 7-It was not the case of the defendant that the suit land was acquired by the government for the Roads and High Ways Department. Defendant without amendment of pleading introduced a new fact in his deposition and the learned judge accepted the departure from the pleading and made out a third case that the suit property was possibly acquired by the Roads and High Ways Department which is beyond the pleading of the defendant, which is not permissible. The High Court Division held that the sole defendant government in their written statement neither claimed that the suit land was acquired nor disclosed the same in their defence case but the learned Subordinate Judge opined that the suit property was possibly acquired by the Roads and High ways Department which is violation of the settled principle of law as per Order 6 rule 7 of the Code of Civil Procedure that either of the parties cannot raise any new ground of claim or contain any allegation of fact inconsistent with the pleadings of them. It was not the case of the defendant that the suit land was acquired by the government for the Roads and High Ways Department. Defendant without amendment of pleading introduced a new fact in his deposition and the learned judge accepted the departure from the pleading and made out a third case that the suit property was possibly acquired by the Roads and High Ways Department which is beyond the pleading of the defendant. Moreover, the burden of proof of this fact lies upon the government, which they failed, but the trial Court shifted the burden upon the plaintiffs which is not permissible. Using the word "possibly" indicates that the trial Court was not sure as to acquisition of the land that means its judgment was passed on surmise and conjecture. Md. Mofazzal Hossain and others -Vs- Bangladesh, represent-ted by the Deputy Commissioner, Gazipur (Civil) 16 ALR (HCD) 273-279 Order VI rule 7- New plea-The court will not allow either party to make any departure from the earlier pleadings set forth in the plaint or written statement. Bangladesh vs Md Aslam 44 DLR89. Order VI rule 7- The departure in the evidence from the plaint has not been of such a dimension that the defendants were unfairly taken by surprise. Both the parties had all opportunities to lay before the court all their evidence respecting title and possession of the suit land. In such circumstances the operation of Order VI rule 7 of the Code will not come in. Kochi Mia @ Khocha Mia vs Suruj Mia being dead his heirs Md Fazlur Rahman and others 51 DLR (AD) 57. Order VI rules 14 & 17- Defect or irregularity in the matter of signing the plaint and the verification to the plaint can be cured by amendment of the plaint. Doon Valley Rice Limited vs MV Yue Yang and others 48 DLR 531. Order VI rule 14 & Order XIX rule 1- Companies are not exclusively governed by the provisions of Order XIX rule 1 in the matter of signature on plaint. They are also governed by the provisions of Order VI rule 14. A company has alternative choice. It can follow Order XIX rule 1 or Order VI rule 14. It cannot orally authorise a person to sign a plaint-it is governed by its Articles of Association in such matters. It is not condition of verification of plaint that it should be done by the holder of a power of attorney. Anath Bandhu Guha & Sons Ltd vs Babu Sudhangshu Shekhar Halder 42 DLR (AD) 244. Order VI rule 17- Amendment of pleadings may not be allowed as would alter the nature of suit, etc-However in certain circumstances the court may allow an amendment in what is not generally done. Md Nurul Islam vs Abdul Malek 38 DLR (AD) 115. Order VI rule 17- 0riginal prayer in the plaint was for declaration of the partition deed as null and void and fraudulent. By an amendment prayer later on it sought for cancellation of the deed as being fraudulent and void. Held: Amendment prayer should be allowed as cancellation of the document is a natural sequence when it is found to be product of fraud-Question of limitation not relevant. Jarina Khatun vs Pulin Chandra Das 37 DLR (AD) 67. Order VI rule 17- Question arose as to whether amendment of pre-emption application introducing a new claim for pre-emption on the basis of contiguous ownership of the disputed lands would materially alter the nature and character of the proceeding, particularly when it is barred by limitation. Held: As a rule no amendment is allowed where its effect will take away any legal right, which might have accrued by lapse of time. Here the transferee has failed to show what legal right had accrued to him which will be washed away by allowing the amendment-Then again as a rule the Court refused an amendment if the amendment introduces a totally new and inconsistent case which may require further evidence to be adduced by the opponent-In this case no legal right accrued to the respondent except the right of rateable pre-emption-The amendment is allowedand it will relate back to the date of the institution of the pre-emption case. Amendment pleadings under Order VI, rule 17 CPC-Special limitation prescribed under section 96 of the State Acquisition and Tenancy Act-The question of limitation may arise in two cases (i) whether the claim to be included was barred on the date of the institution of the suit, (ii) whether the claim is barred on the date of the prayer for amendment-In this case the amendment will relate back to the date of the institution of the case. Sree Shushil Ranjan Dutta vs Al-Haj Moulvi Idris Mia 42 DLR (AD) I I 0. Order VI rule 17- Amendment of pleading at the appellate stage in the interest of justice and for determination of the real controversy between the parties permissible. Bimal Kanti Biswas vs Custodian of Enemy Property 42 DLR 227. Order 6 Rule 17 of CPC On consideration of the evidence on record, dismissed the suit and the High Court Division, without arriving at the finding that for complete adjudication of the dispute further evidence is necessary passed the impugned order which has the effect of permitting the plaintiff of fill up the lacuna in all aspect and the High Court Division also did not at all consider that the relief claimed by way of amendment is barred by limitation. and is also beyond the ambit of Order 6 Rule 17 CPC. Government of the People's Republic of Bangladesh vs. Md. Abdur Rob and others (Md. Tafazzul Islam J)(Civil) 4ADC 412 Order VI rule 17- Amendment of pleading -Mere change in the relief does not change the nature of the suit. Nuruddin Ahmed vs Zafarullah Siddique 42 DLR 246. Order VI rule 17- Amendment of written statement-The proposed amendment will not change the fundamental character of the defence case. The Court fell into error of law occasioning failure of justice in rejecting the application for amendment. Md Naiyum vs Rahima Khatun 42 DLR 523. Order VI rule 17- Courts are always inclined to allow amendment so as to enable the parties to bring all points relating to a dispute between the parties before the Court in order to avoid multiplicity of proceedings. Sahimon Bew al vs Safiruddin Mohammad 38 DLR 265. Order VI rule 17- Amendment of plaint can be made 'at any stage of the proceeding' which includes proceeding even at the appellate stage. MA Jahangir vs Abdul Malek 41 DLR 389. Order VI rule 17- Merely because an amendment is new from what has been stated in the plaint, it cannot be a ground for refusal of amendment of the plaint unless it changes the character of the suit. MA Jahangir vs Abdul Malek 41 DLR 389. Order VI rule 17- Amendment of the election petition made a complete change in the nature and character of the election petition. Zulfiquar Ali Bhutto vs Bangladesh-11 DLR 379. Order VI rule 17- Election Tribunal has no power to allow amendment of the election petition so as to relate back to the date of filing of the election petition. Thus although the Election Tribunal has the limited jurisdiction to allow amendment of the election petition, it has no power to allow any amendment, so as to relate back to the date of filing of the election petition. It is so because sub­rule ( 1) of Rule 44 prescribed the limitation of 30 days next after the publication of the result in the official Gazette to file an election petition and sub-rule (5) specifically provides that an election petition shall set forth the ground on which the petition is fixed and the relief sought. In other words, the ground for the election petition and the relief sought must be stated within the period of limitation. Zulfiquar Ali Bhutto vs Bangladesh 41 DLR 379. Order VI rule 17- Amendment of plaint allowed by the trial Court as a matter of course and without satisfying itself whether the same is necessary for determining the controversy between the parties is to be discarded. Ismail Mohammad vs Motasim Ali Chowdhury 45 DLR 123. Order VI rule 17- Amendment of pleadings -Plaintiff filed an application for amendment of the plaint that the defendant entered into the property in 1956. The application ought to have been allowed as it could have been disposed of on the available evidence on record and would not have prejudiced the defendant in any manner. Abdur Rabbani vs Aminul Haque Sowdagar 43 DLR (AD) 19. Order VI rule 17- The defendant traces his possession in the property since 1948. Documentary evidence of payment of rent starts from 1951. With the passage of time, question of limitation and accrual of vested rights step in. The Court correctly rejected the application for amendment of plaint. Abdur Rabbani vs Aminul Haque Sowdagar 43 DLR (AD) 19. Order VI rule 17- Amendment of plaint-­Extent of amendment that can be allowed-by the proposed amendment the plaintiff seeks to introduce a new case of acquisition of his title to the suit property by altering his earlier pleading. A plaintiff can set up as many roots of title as possible and they may be even conflicting and inconsistent. Thus the major ground as aforesaid of the trial Court for refusing the amendment is not tenable in law. So also the other two minor grounds as the amendment was proposed before the trial and its obstruction to normal rule of disposal can be compensated by costs to the other side. Plaintiff's application dated 2.8.92 seeking amendment of the plaint is allowed on condition that the plaintiff should pay a cost of Tk. 2,000.00 to the contesting defendants within two months from the date of receipt of this order by the trial Court, in default the application shall stand rejected. Samarendra Nath Roy Chowdhury vs Abdul Jabbar 46 DLR 273. Order VI rule 17- Amendment of pleading-Introduction of a relevant fact by way of amendment for determining the real question in controversy should not be refused. Moyezuddin Mondal vs Bena Rani Das 45 DLR 154. Order VI rule 17- Amendment of plaint­-Plea of res judicata- When in a previous suit a party of a subsequent suit was impleaded in his representative capacity as an heir of the original tenant and it was not open to him to raise any defence in his personal capacity he can subsequently raise objection and his hereditary nature in the previous suit does not operate as res judicata. Amendment of the plaint in the subsequent suit to the effect that the decree made in the former suit arising out of revenue sale, wherein the plaintiffs were impleaded in personal capacity, was null and void is proper and just for effective adjudication of issues between the parties. Kutub Uddin Bhuiyan vs Sakhina Bibi 43 DLR 601. Order VI rule 17- Rerum of plaint in a matter relating to persons in the service of the Republic-Amendment replacing a cause of action, after it had ceased to exist, by a new cause of action so as to change the nature of the suit and the cause of action will not be allowed, and, if allowed, cannot relate back to the date of filing the suit. Furthermore, the jurisdiction of the civil Court having been vested in the Administrative Tribunal by the promulgation of special statute the jurisdiction of civil Court in respect of Bank employees had been ousted, and in that view of the matter, the plaint was rightly returned by the civil Court for presentation to the proper Tribunal having jurisdiction. Mansur Ali vs Janata Bank 43 DLR 394. Order VI rule 17- Amendment of plaint­—Where the plaintiff institutes a suit for permanent injunction and obtains temporary injunction but subsequently he is dispossessed from the suit property, and he then merely seeks amendment of the plaint for restoration of the property under Order XXXIX, rule 2 CPC such amendment cannot be allowed without a prayer for declaration of title and recovery of possession, in as much as, the same will change the nature and character of the suit. RAJUK vs Mir Nousher Ali 46 DLR 134. Order VI rule 17- Amendment-When opportunity for additional written statement not necessary-The amendment was of formal nature changing the name of the plaintiff bank following its de-nationalisation. Normally when an application for amendment of plaint is allowed, the defendant is given a chance to file additional written statement but the amendment being of formal nature the judge has committed no error of law in not giving opportunity for filing additional written statement. Mozammel Haque vs Uttara Bank 43 DLR 498. Order VI rule 17- Amendment replacing a cause of action, after it had ceased to exist, by a new cause of action so as to change the nature of the suit and the cause of action will not be allowed, and if allowed, cannot relate back to the date of filing the suit. Furthermore, the jurisdiction of the civil Court having been vested in the Adminis­trative Tribunal by the promulgation of special statute the jurisdiction of civil Court in respect of Bank employees has been ousted, and in that view of the matter, the plaint was rightly returned by the civil Court for presentation to the proper Tribunal having jurisdiction. Monsur Ali vs Janata Bank 43 DLR394. Order VI rule 17- In the amendment certain specific boundary has been incorporated keeping the other averments of the plaint intact. Such amendment has not changed the character of the plaint. JN University vs Mujibur Rahman 43 DLR 282. Order VI rule 17- Prayer for amendment of pre-emption application by way of addition of parties after the pre-emptors were earlier allowed exemption from such addition. The Assistant Judge does not exercise his discretion in a judicial manner by refusing addition of the same parties, when the pre-emptor appears to have averred that on a wrong advice they prayed for exemption. Mojibur Rahman Sarker vs Shafiqul Islam 43 DLR 313. Order VI rule 17- Amendment of a plaint and amendment of a written statement are not governed by exactly the same principle. The defendant would not be allowed to introduce an alternative and completely different kind of defence which will have the effect of introducing a new controversy between the parties. Abul Kalam Azad vs Sunhar Ali 46 DLR (AD) 130. Order VI rule 17- Before allowing amendment or alteration of the pleading the Court must come to a finding that such amendment or alteration is necessary for determining the real question in controversy. The order of the trial Court passed without such finding suffers from legal infirmity and the matter is sent back for rehearing. Sri Kirlish Chandra Dev vs Begum Sufia Akhtar 46 DLR 313. Order VI rule 17- Amendment of plaint­ - When it means no substitution of one cause of action for another- The impugned transfer of shares of the plaintiff having taken place during the period of insanity of the plaintiff, it is necessary to dispose of the same within the framework of the suit for declaration. Insanity being the foundation of the suit plaintiff can legitimately combine in one suit all the alleged illegalities committed by the appellant in the matter of transfer of the shares in question and other properties. This is not substitution of one cause of action for another, but a consolidation of all wrongs allegedly done to the plaintiff. Afruz Miah vs Al-haj Md Siraj Miah 43 DLR (AD) 89. Order VI rule 17- Amendment of plaint­ - Conflict of decisions-If the plaintiff had to. file separate suits challenging different alienations during the period of his insanity, it will involve proving insanity in each suit which might lead to conflict of decisions. This is least desirable. Afruz Miah vs Al-haj Md Siraj Miah 43 DLR (AD) 89. Order VI rule 17- Amendment of plaint-A corollary to addition of party-the plain tiff added 3 other defendants as parties after filing of the suit and prayed for relief The addition of parties is corollary to the amendment sought for. It in no way changes the complexion of the suit. Afruz Miah vs Al-haj Md Siraj Miah 43 DLR (AD) 89. Order VI rule 17- Amendment of plaint­ - Delay- Appellants having not filed written statement in the suit the delay of 10 months in seeking amendment after the knowledge of transfer of the shares in question is not material as it will not prejudice them in any way. Afruz Miah vs Al-haj Md Siraj Miah 43 DLR (AD) 89. Order VI rule 17- The proposed amendment would settle the question whether during the pendency of the suit the plaintiff was dispossessed or not. This will end all pending controversies between the parties and will not amount to a change in the nature and character of the suit. Shahajadpur Central Co-operative Bank Ltd vs Majibur Rahman and others 50 DLR (AD) 86. Order VI rule 17- In the appellate Court parties filed a solenama on the basis of which the suit was remitted to the trial Court for the said purpose-The plaintiffs could not be permitted to open the new issue (by amendment) for decision in the suit after having already entered into compromise admitting the claim of the appellants. Sunil Chandra Mondal and others vs Narayan Chandra Shil & others 50 DLR (AD) 148. Order VI rule 17- Instead of furthering the cause of justice by allowing the plaintiff-appellant a full opportunity to place his case against all the parties involved by stating all the facts that he wants to allege against them and by seeking all possible remedies against them, the High Court Division has given a queer look at the plaintiff and has found him lacking in bonafides in whatever he does. After all, he is seeking full justice from a Court oflaw and he wanted to bring all the parties involved in the original and subsequent transactions. Why should anyone find a malafide motive in trying to do just that, is beyond our comprehension. Khaledur Reza Chowdhury (Md) vs Saleha Begum and others 48 DLR (AD) 209. Order VI rule 17- The proposed amendment introducing new facts and subsequent cause of action different from those made in the plaint if allowed condoning the delay will change the nature and character of the suit. Amendment was therefore rightly refused. Abdul Wadud Contractor and another vs Nazir Ahmed and others 48 DLR (AD) 120. Order VI rule 17- In a suit for ejectment of licensees the prayer for declaration of plaintiffs title is rather necessary to constitute the suit in a complete legal form and for final adjudication of the matter in dispute. The amendment for such a declaration is merely an additional relief in proper perspective and necessary for appropriate relief. Syed Monirul Huda Chowdhury vs Fouzia Chowdhury and others 47 DLR JO. Order VI rule 17- Court can take into account subsequent event necessitating amendment by· addition of new relief that may be allowed to do complete justice. Nazrul Islam Majumder (Md) vs Tahamina Akhtar alias Nahid and another 47 DLR 235. Order VI rule 17- Mere delay in filing the application for amendment of the plaint cannot be a ground to hold that the application for · amendment is malafide and the applicant is not entitled to the relief prayed for. Abdus Salam vs Karban Ali and another 48 DLR 372. Order VI rule 17- The Court is directed to hear afresh the amendment application and the objection thereto as the impugned order allowing amendment of plaint does not show it was done on proper consideration of the same. Begum and Company Ltd vs Rupali Bank and others 48 DLR 23. Order VI rule 17- Once an amendment of the plaint is allowed the amendment will relate back to the date of the institution of the suit. Doon Valley Rice Limited vs MV Yue Yang and others 48 DLR 531. Order VI rule 17- Law does not impose any bar on the defendant to claim as many roots to his title as he wants and they may even be conflicting to each other cannot be grounds for rejecting an application for amendment. Tohfa Khatun and others vs Moulavi Mukhilisur Rahman and others 49 DLR 315. Order VI rule 17- A consideration whether an amendment would have the effect of getting out of an admission of a party in his pleadings to the prejudice of the contesting party is absolutely irrelevant. Tohfa Khatun and others vs Moulavi Mukhilisur Rahman and others 49 DLR 315. Order VI rule 17- Amendment of plaint should not be refused unless {a) the plaintiffs suit is wholly displaced by amendment {b) the amendment takes away right accrued by lapse of time { c) the amendment introduces a different, new and inconsistent case and the amendment converts the suit into a different and inconsistent character. Norendra Chandra Dash and others vs Md Solaiman Chowdhury & ors 51 DLR 81. Order VI rule 17- A party is expected to raise any dispute of the nature in the appeal instead of rushing to this court thereby delaying disposal of the election petition. Nazem Uddin vs Election Tribunal and others 52 DLR 189. Order VI rule 17- By amendment for the 3rd time the plaintiff sought to show his purchased land to be 0.1125 acres. But there was no necessity of allowing such amendment to resolve whether the defendant had dispossessed the plaintiff from the suit land, which the plaintiff by way of 2nd amendment claimed to be 0.03 acres out of his purchased land. Motasim Ali Chowdhury vs Md Ismail 53 DLR (AD) 74. Order VI rule 17- Amendment only in the prayer portion of the plaint following direction for taking fresh evidence in order to prove 'Salishnama', the basis of plaintiff's clai_m calls for no interference. Abdul Khaleque Gazi and others vs Abdul Aziz Mollah and others 53 DLR (AD) 82. Order VI rule 17- If the application is found to be fit to allow the plaintiffs to add the prayer for confirmation of possession on payment of proper court fees then it can also allow the defendants to file additional written statement. There may then be a necessity for additional evidence to be adduced by the parties for determining the real question in controversy. Jarina Khatun & others vs Gani Howlader & others 53 DLR 53. Order VI rule 17- If the proposed amendment is allowed, the amendment will go back to the time of institution of the suit, thereby, giving a new life to the time-barred claim of the plaintiff, depriving the opposite party of a valuable legal right accrued to them by lapse of time. Such a course is clearly unjust. Gold Topps Co Hong Kong and others vs TCB and another 53 DLR 280. Order VI rule 17- An application for amendment of the plaint should not be rejected on the ground that the preliminary decree has already been drawn up, and that re-opening of the suit and adducing further evidence will cause inordinate delay in disposal and hardship to the parties. Hanif Ali (Md) vs Hajera Khatun and others 55 DLR 17. Order VI rule 17- Unnecessary parties and prayers may be struck out by the court from an election petition by an amendment. Idrish Ali Bhuiyan (Md) vs Dr Alauddin Ahmed and ors 55 DLR 19. Order VI rule 17- An amendment may be just but cannot be allowed if it is not necessary for decision in the suit. Bangladesh Shipping Lines Ltd vs Commissioner of Customs, Chittagong and others 55 DLR 166. Order VI rule 17- Amendment of plaint seeking to convert the suit of one character into another and to substitute one distinct cause of action into another depriving the other party of his right accrued to him by lapse of time cannot be allowed. Government of Bangladesh and another vs Shafi A Chowdhury and another 55 DLR 228. Order VI rule 17 and section 151- Amendment of pleadings-Introduction of alternative defence on the ground of hardship-A completely different defence-Contract even if subsisting can still be avoided on this ground. It is found that this amendment has been introduced so that in the event of the court's finding that the contract is subsisting, the defendant-petitioner can still avoid it on the ground of hardship. In other words, the defendant-petitioner is now seeking to introduce an alternative defence. This defence is now of a completely different kind, both in terms of content and form. It will have the effect of introducing a new controversy between the parties, a controversy which did not exist before. Defendant-petitioner is not precluded from raising alternative defence-introduction of alternative defence at this stage of the suit will compel the plaintiff to arrange production of evidence in rebuttal of a new defence. The petitioner was not precluded from raising a new alternative defence, provided it did not affect the parties in any appreciable manner. If the amendment was sought to be made before the positive hearing of the suit it could not have been said that the parties were affected thereby but in the facts and circumstances of this case it can legitimately be argued by the plaintiff-opposite party that the introduction of an alternative defence at this stage of the suit will be highly prejudicial to him, for he will also have to arrange production of evidence in rebuttal of a new defence. Major (Retd) M Afsaruddin vs Kamal Rahman 4 I DLR I 90. Order VI rule 17 and Order VII rule 10-­ The conversion of the suit from one file to another does not involve a change in the nature and character of the suit so as to bar amendment of the plaint. The court had ample jurisdiction to allow the amendment and then to return the amended plaint to the plaintiff for presentation to the proper court. Nazrul Islam vs Jahanara Hasan 46 DLR I06. Order VI rule 17 & Order XXII rule 9- The provisions for amendment of pleading has no bearing in the matter of substitution of legal representative of a deceased party and it is not to be used as subsidiary provision of the Order XXII, Civil Procedure Code as a device to overcome the effect of bar of abatement in the suit. Saleha Khatun and others vs Fetema Hajura and others 52 DLR 457. Code of Civil Procedure (V of 1908) Order VI, rules 17 read with Order XXIII, rules 1 & 2 Plea does not stand to reason because the wrong statements made in the plaint can be corrected by way of amendment which will not change the nature and character of the suit. The plaintiffs may also pray for consequential relief by way of amendment on payment of advalorem court fee and for addition of such relief, withdrawal of the suit and appeal with the permission to sue afresh is not at all necessary. Bangladesh vs Babor Ali [73 DLR (AD) 4] It is pertinent to mention that the established principle of law is that once a judgment is delivered by a competent Court and signed by the learned Judge, the said Judge becomes functus officio. He cannot entertain any application other than for correcting an arithmetical or clerical error. It is also well settled that an executing Court cannot go beyond the decree and the executing Court cannot amend the decree without an order passed by the appellate Court, except correction of clerical and arithmetical mistake and an amendment under section 153 of the Code of Civil Procedure cannot be allowed when it alters the real matter in controversy between the parties. [73 DLR (AD) 233] The Court may at any time correct any clerical or arithmetical mistake in the judgment, decree or orders or accidental errors arising therefrom either on its own motion or on the application of a party, but an amendment of a substantial nature, or amendment of the plaint is beyond the scope of this section. If the decree or order is sought to be varied for any reason other than clerical error or arithmetical mistake, it can be done only by way of review or by appeal. A Court apart from section 152 by virtue of its inherent power can alter or vary the order and the decree, but the Court must bring the amendment of the decree in conformity with and to harmonies the decree with the judgment. (Ismailullah vs Sukumar, 1986 BLD (AD) 251 = 38 DLR (AD) 125). But the amendment made by the Court by striking out some schedules from the plaint as well as from the decree was in no way done according to the provision of law. Nonetheless, the Court allowed the petition for amendment of decree vide order No.310 dated 18-5-2010 and as a result it was in violation of the provision of law and the decision of the apex Court. Such order was totally erroneous and the revisional Court's order upholding the same was equally erroneous. [73 DLR (AD) 233] Code of Civil Procedure (v of 1908) Order VI, rule 17 Amendment of plaint was filed after lapse of 10 years of institution of the suit and that the trial Court accepted the amendment after long lapse of time. Admittedly, as soon as gazette notification has been published in the official gazette, the acquired property including the suit property vested in the Government free from all encumbrances and the Government is at liberty to use the property for any other purpose and the original owners lost their right over the acquired land for good. The suit itself was not maintainable from its very inception. The plaintiff cannot take the plea that the suit is maintainable because of malafide.... (33) [73 DLR (AD) (2021) 196] Code of Civil Procedure [V of 1908] Order 6 rule 17 Whether in view of the amendment of the Code of Civil Procedure by gazette notification dated 24th September, 2012 adding two provisos to rule 17 of order 6 after the word 'parties' by substituting colon mark (3) for the full stop, an amendment to the plaint can be allowed at the appellate stage. Md. Atiqur Rahman - Vs. Khan Mohammad Ameer and others (Civil) 17 ALR (AD) 106-111 Code of Civil Procedure [V of 1908] Order 6 Rule 17-It appears to the High Court Division from the record that the present suit is at the stage of final hearing and 1(one) P.W. was ex- amined in part. In consideration of the facts and circumstances, the trial Court rightly rejected the application for amendment of the plaint filed by the plaintiff-petitioners. From the statement of the plaint and the proposed amendment of the plaint, it is clearly found to the High Court Division that in the plaint, the plaintiff-petitioners stated that their mother gave a Wasiotnama (অছিয়তনামা) to establish a Darbar Sharif in the name of her grand-son and at that time the plaintiffs, defendants and other relatives were present and it was functioning for about a decade but in the amendment petition they have come with a new fact and claim that their mother orally gifted 3 (three) Kara of the suit land to the plaintiffs and some other lands to the defendant No. 1. This is a clear departure of the claim made in the plaint which was filed for cancellation of 3 (three) deeds. It further appears that they have proposed for declaration of title and confirmation of possession with the cancellation of deeds. They have also proposed to strike out the name of the defendant Nos. 3 and 4 and to implead some names as defendant Nos. 3- 12. In paragraph Nos. 3 and 4 they have asserted about oral gift in place of Wasiotnama. In paragraph No. 5 they have proposed to amend the prayer of the plaint which is about oral gift and declaration of title and confirmation of possession. It is further found from the amendment application that the plaintiffs proposed to add 13 persons as defendants but the suit was filed for cancellation of deed. So, those persons are not necessary parties in the suit. The trial Court on consideration of the aforesaid facts and circumstances of the case rightly observed that by the proposed amendment the nature and character of the suit will be changed. Moreover, the suit is at the stage of final hearing and at this stage this type of amendment should not be allowed by which it will create a new controversy among the parties. It appears to the High Court Division from the record that the present suit is at the stage of final hearing and 1 (one) P.W. was examined in part. In consideration of the aforesaid facts and circumstances, the trial Court rightly rejected the application for amendment of the plaint filed by the plaintiff-petitioners. On consideration of the aforesaid facts and circumstances and the discussions made above and the provision of Order 6 Rule 17 of the Code of Civil Procedure, 1908, the High Court Division is of the view that the trial Court has rightly rejected the application for amendment filed by the plaintiff-petitioners. Thus, the High Court Division does not find any error of law in the impugned judgment and order passed by the trial Court. It has not occasioned in failure of justice. The Rule fails. In the result, the Rule is discharged. Hosneara Begum and others -Vs.- AMM Ibrahim and others (Civil) 19 ALR (HCD) 38-42 Code Civil Procedure [V of 1908] Order 6, rule 17 read with order I, rule 10(2) As the Artha Rin Adalat concerned acted coram non-judice by allowing a person as a defendant who is neither a loanee nor a guarantor, question of maintainability cannot arise at all. The Appellate Division opined that the writ petitioner, i.e. the defendant No. 6 in the Court below, filed the aforementioned writ petition, making the Rule absolute in which the High Court Division observed that admittedly the writ petitioner is neither a loanee nor a guarantor and that no Artha Rin Suit can be filed against someone who is neither a loanee nor a guarantor. As the Appellate Division took up the leave petition, Mr. Muhammad Nazrul Islam, the learned Senior Advocate for the leave petitioner argued that no writ is maintainable against an Artha Rin judgement as appeal provision is there. Mr. Chowdhury Md. Zahangir, on the other hand, appearing for the respondents before the Appellate Division, argued that the question of appeal and maintainability cannot arise in a case where the Court acted beyond jurisdiction. Having pursued the judgements of the Courts below and the respective pleading the Appellate Division is satisfied that as the Artha Rin Adalat concerned acted coram non-judice by allowing a person as a defendant who is neither a loanee nor a guarantor, question of maintainability cannot arise at all. The Appellate Division finds no merit in the leave petition, which is accordingly dismissed. Islami Bank Bangladesh Limited and another Vs. Md. Serajul Islam and others. (Civil) 19 ALR (AD) 76-77 Code of Civil Procedure [V of 1908] Order 6 Rule 17 read with section 115(1) It is the settled principle of law that amendment of a plaint can be allowed in the discretionary power of court at any stage and such amendment of the plaint must not be allowed, if it tends to change the nature and character of the suit. The High Court Division held that the amendment sought for will not change the nature and character of the suit rather such amendment is necessary which will enable the Court to determine the real questions in controversy between the parties. The High Court Division finds substance in the submission of the learned advocate for the petitioner and the impugned order is not sustainable in law, which is liable to set aside. The High Court Division finds merit in this rule. In the result, Rule is made absolute without any order as to costs. The impugned Order dated 19.06.2013 passed by the learned Joint District Judge, Additional Court, Gazipur, in Title Suit No. 232 of 2007 rejecting the petitioner's application under Order VI Rule 17 of the Code of Civil Procedure for amendment of the plaint is hereby set aside. Application for amendment of the plaint dated 05.05.2013 is allowed. Md. Darbar Ali alias Jobbar Ali -Vs. Amir Ali and others(Civil) 16 ALR (HCD) 261-264 Order 11 Rule 2(2), Order II Rule 17 The amendment may be allowed at any stage of the proceeding before or after the trial or even after the judgment or on appeal if justice require and no blame would be attached to the party, the materiality of the amendment should always be looked at so as to decide the real controversy between the parties allowing amendment of the pleadings......(17). Pragati General Insurance Company Ltd. vs Md. Siddique Ali Mondal (Mohammad Fazlul Karim J)(Civil) 2ADC 926 Order 11, VII, Rule 10, 2 The Artha Rin Adalat Act, 1990 to be a special procedural law rather than a substantive law affecting the rights of the parties. It was submitted that where par- ties have agreed that a foreign law governs a dispute, capacity to sue is governed either by the law of the domicile of the plaintiff, which in this case is Washington D.C., U.S.A., or the governing law of the agreement, which in! this is alleged to be English law, and not the law of the forum where the suit is brought to resolve the dispute. Mustaque Alam Chowdhury vs. The 1 Court of Joint District and 2nd Artha Rin Adalat (Mohammad Fazlul Karim Civil) 4 ADC 906 Order XI Rules 8 and 11 If the person interrogated omit to answer, the Court has the power to pass an order compelling the person interrogated to answer them, hence the provision of answer interrogatories within 10 days as stipulated in Rule 8 cannot be said to be a mandatory provision of law. Sree Bisheswar Bhattacharjee Vs Suntimoy Bhattacharjee & ors., 19 BLD (HCD) 37. Order XI Rule 11 Rule 11 has given a power to the person serving interrogatories to apply to the Court for an order requiring the party upon whom interrogatory has been served to answer interrogatories. Md. Habibur Rahman Vs Deputy Commissioner, Patuakhali and others, 19 BLD (HCD) 34. Order XI Rules 21 and 11 The provision of Rule 21 applies when the party interrogated fails to comply with an order passed by the Court under Rule 11, but in the instant case the party interrogated has not failed to comply with any order of the Court. Md. Habibur Rahman Vs Deputy Commissioner, Patuakhali and others, 19 BLD (HCD) 34. Ref: AIR 1967 (SC) 297; PLD 1957 (Dacca) 161;, 2 BLC(AD)(1997)181; PLD 1935 (Dacca) 42; 1988 BLD 330; 45 DLR (AD) (1993)178—Cited. Order XI, Rule 21 When the defendants fail to prove that the trial Court’s order absolving the plaintiffs liability of defect of parties owing to their own failure to answer to the plaintiffs interrogatories on this point was obtained collusively, the plea of defect of parties is not available to them. Md. Hafizuddin Mondal and others Vs. Sree Dhirendara Nath Singh and others, 14 BLD (AD) 132. Code of Civil Procedure [V of 1908] Order 11, rule 21 read with Artha Rin Adalat Ain [VIII of 2003] Section 57-There is no scope to reject the plaint of the suit under Order XI, rule 21 of the Code. Plaint of a suit may be rejected on any of the grounds as provided in Order VII, rule 11 of the Code. The High Court Division further held that the application under Order XI, rule 21 of the Code (Annexure-C to the writ petition), it appears that in the application, it is stated "আর্জি খারিজ করার আবেদন" with dentical prayer. But there is no scope to reject the plaint of the suit under Order XI. rule 21 of the Code. Plaint of a suit may be rejected on any of the grounds as provided in Order VII, rule 11 of the Code. But none of those grounds are mentioned in the application. In view of the above, there was no scope to allow the application under Order XI, rule 21 of the Code read with section 57 of the Ain and the learned Judge of the Adalat lawfully rejected the said application. Thus, we find no merit in the submissions of Ms. Afsana Begum, the learned Advocate for the petitioner and we find merit and force in the submissions of Ms. Hosneara Begum, the learned Advocate for the Bank. In view of the discussions made in the foregoing paragraphs, vis-a-vis the law, the High Court Division finds no legal infirmity in the impugned order passed by the learned Judge of the Adalat rejecting the petitioner's application filed under Order XI, rule 21 of the Code read with section 57 of the Ain, rather it is well founded in law. In such view of the matter, the High Court Division finds no merit in the rule. Accordingly, the Rule is discharged with a cost of Tk. 20,000/- to be paid by the petitioner to the Bank within fifteen days from date. Mahbub Minhaj-Vs. Artha Rin Adalat 3rd Court. Dhaka (Spl. Original) 19 ALR (HCD) 45-47 Order XI Rule 21 When no order is passed by the Trial Court for supplying interrogatories, the question of allowing the application under Order 11, Rule 21 of the Code of Civil Procedure cannot be maintained. Md. Ansar Ali Vs. Md. Yeasin Mea and others, 13 BLD (HCD) 525. Order XI Rule 1 Discovery by interrogatories—Discretion of the Court It provides that in any suit the plaintiff or defendant by leave of the Court may within ten days from the date of framing of issues, deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties. In this case the petitioners filed written statement on 21.3.1996. Shortly before the date of peremptory hearing filed an application for leave to deliver interrogatories under Order XI Rule 1 read with section 151 C.P.C. The learned trial Court by the impugned order rejected the prayer of the defendants upon the view that the plaintiff was prepared with his papers, and the defendants having opportunity to peruse them upon filing of the same and the suit having been set down for peremptory hearing, leave to deliver interrogatories could not be considered at such belated stage. Interrogatories may be delivered only with the leave of the court and it is in the discretion of the Court to grant or not to grant leave. In the facts of the case, the learned trial Court rightly exercised his judicial discretion in refusing to rant leave. MIs. Moon Garments industries and ors. Vs. Janata Bank, Foreign Exchange Corporate Branch and ors, 18 BLD (AD) 7. Order XIV Rule 2 and Order XV Rule 3 Issues of law and fact and parties at issue When the applicant did not press for determining the issue of maintainability of the suit first after the framing of issues and waited leisurely and made a prayer for such determination on the date fixed for peremptory hearing it follows that it was aimed at frustrating the act of Order XIV Rule 2 and Order XV Rule 3 of the Code meant for avoiding protracted litigation and unnecessary expenditure. The learned trial court rightly rejected the prayer of the petitioner for avoiding a peacemeal disposal of the suit. Hatem Ali and Ors. Vs. Ramjan Ali, 16 BLD (HCD) 372. Ref: A.I.R. 1965 (Andhra Pradesh), 12; 30 DLR (SC)30;—Cited. Order XIV Rule 1 Framing of Issues Failure to frame a particular issue or issues does not affect the decision of the Court if the points involved in the suit are substantially covered by the evidence adduced by the parties and duly considered by the Court. Under such circumstances it cannot be held that the petitioner has been prejudiced by such omission. There is no necessity for remanding a case on such a ground. Hachina Begum Vs. Mosammat Mahfuza Akhter 16 BLD (HCD) 374. Code of Civil Procedure [V of 1908] Order 14 rule 1 & 2 Court of original jurisdiction at time of holding trial is under obligat to frame proper issues of law and of fa to decide the controversy between parties and it further appears that un rule 2 of Order XIV of the Code of C Procedure, the Court is under furti obligation to decide the issues relating law at first, before deciding the iss relating to the question of facts. The High Court Division held learned Judge of the trial Court on getti back the suit on remand could not fran the issue on plaintiff's title and thereb failed to decide the issue of title as per th observation and direction of Appellate Court below; trial Court also decided the issue of maintainability of the suit in an evasive manner and without noticing the observation of appellate Court as well as mandate of the provision of Order XIV rule 1 & 2 of the Code of Civil Procedure and this failure on the part of trial Court to comply with the direction of Court of appeal below in deciding the issue of maintainability at first, which is the legal mandate of rule 2 of Order XIV of the Code of Civil Procedure also, made the judgment erroneous, more over failure or omission to frame issues in accordance with the provision of Order XIV, rule 1 of the Code of Civil Procedure, which affected trial of the suit materially in deciding whole controversy between the parties, is also an error of law, committed by trial Court. Md. Motiur Rahman and others Vs. Deputy Commissioner, Narsingdi and others. (Civil) 21 ALR (HCD) 44-48 Code of Civil Procedure [V of 1908] sub-rules (3) and (4) of rule I of Order 14 The law in clear terms curtailed the power of the Court in granting adjournment prayers of the parties to the suit. If the Court, before or after peremptory hearing of a suit, allows adjournment to a party with costs with a direction to deposit the same within some specified time in exercising power under sub-rules (3) and (4) and the plaintiff fails to comply with such order, the Court shall have no option but to dismiss the suit and in case of defendant, dispose of the suit ex-parte. The High Court Division held that in the instant case, it appears that the suit was fixed for peremptory hearing on 27.04.2005 and on that date on the prayer of the plaintiff, the learned Judge of the trial Court adjourned the hearing with a cost of Tk. 200/- fixing on 07.06.2005 for peremptory hearing and on that date the plaintiff prayed for time without depositing the said cost and the trial Court again adjourned the hearing with cost of Tk. 200/- and fixed the next date on 26.07.2005 for peremptory hearing. On 26.07.2005, the plaintiff was examined as P.W.1 and thereafter, another date was fixed. The certified copies of the order dated 26.7.2005 and order of the next date have not been annexed to the revisional. application. The learned Advocate for the petitioner could not also inform me as to what happened on that two dates. However, the next date was fixed on 11.09.2005 for further hearing. On that date the plaintiff prayed for adjournment and the trial Court, after perusing the records, dismissed the suit for default. On perusal of the impugned judgment of the appellate Court, it appears that the appellate Court upon proper appreciation of factual and legal aspect of the case also found no illegality in the judgment of the trial Court and accordingly, arrived at correct decision for which no interference is called for by this Court. In view of the above discussions, the High Court Division finds no merit in the rule. In the result, the rule is discharged. Mahfuzar Rahman Vs. Moshiur Rahman and another (Civil) 18 ALR (HCD) 339-342 Order XIV, Rule 2 The provision of Rule 2 of Order 14 C.P C. is mandatory and the Court is under mandate of law. To decide the issues of law where an application has been filed by a party for deciding a preliminary point on law. Manjur Ahmed Chowdhury and another Vs. Gulbanu and others, 14 BLD (HCD) 1. Order XIV Rule 2 Where issues of law shall be determined first? It requires that the Court shall determine issues of law first before settlement of issues of fact where the case or any part of it may be disposed of on preliminary issues of law only. The trial Court found that since issues of law and fact have already been framed and the date of peremptory hearing of the suit has been fixed, the petitioner’s application under Section 14 of the Limitation Act to decide the question of limitation at that stage merits no consideration. In the facts of the case, no illegality has been committed by the trial Court. Hanif Uddin 5heikh Vs. Birendra Nath Das 16 BLD (HCD) 388. Code of Civil Procedure (V of 1908) Order XIV, rule 2 A case where summons and written statements are required to be issued and submitted as because the plaint cannot be rejected on the very averments of the same under Order VII rule 11 of the Code and/or section 151 of the Code, and in such cases when issues are framed after filing of written statements, the suit should be disposed of by resolving the issue of maintainability, or issue of law only, first if such step resolves the entire suit or part of it. [73 DLR 554] Order XIV Rule 1 Framing of issues Order XIV Rule 1 of the Code casts a definite responsibility upon the trial Court to frame issues upon the material assertions by one party and denied by the other and this can be done at any stage of the suit if found necessary. But it is necessary that the contending parties are afforded adequate opportunity to contest the issue. Mohammad Abdul Jalil Miah Vs Nirupama Ritchil and others, 17 BLD (AD) 63. Order XVI Rule 14 The Court must express and record that it is necessary to examine any person other than a party to the suit. After the Court has found it necessary to examine such a person, the Court of its own motion will cause such a person to be summoned as witness. Char Chandpur High School Vs. Kazi Nurul Alam and others, 13 BLD (HCD) 245. Order XVI Rule 1 Summoning and attendance of witnesses Rule I of Order XVI of the Code of Civil Procedure provides that at any time after the institution of the suit the parties may, on an application to the Court, obtain summons to persons whose attendance is required, either to give evidence or to produce documents. But this privilege of a litigant to take out summons to witnesses is subject to the control and satisfaction of the Court. If the prayer appears to be wanting in bonafides or it is considered as an abuse of the process of the Court, it will be lawful for the Court to refuse such a prayer. Mansur Ali Sikder Vs Kanailal Benarjee and others, 17 BLD (AD) 326. Order XIV Rule 1 Framing of issues Mere omissions to frame an issue is not fatal to the trail of a suit. Omission to frame issues is an irregularity which may or may not affect the disposal of a suit on merits. If such omission has affected the disposal of the case on merits it will be a ground for remanding the case. But if parties have not been prejudiced by the omission, the decision will not be set aside or the case remanded for a new trial. Daulat Ahmed Vs. Md. Mosharraf Hossain, 17 BLD (HCD) 607. Ref: PLD 1969 Pesh 241; PLD 1969 Pesh 5;—Cited. Order XIV Rule 2 Issues of law and fact It provides that where issues both of law and fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first. The trial Court was thus right in deciding the question of maintainability of the suit as the primary issue. Osman Gani Talukder alias Sujat Ali Talukder Vs. Md. Osman Ali Mondal, 16 BLD (HCD) 165 Order XIV Framing and determination of issues When the genuineness or otherwise of the bainapatra is not a relevant issue in the suit, the suit being for mere declarations that the impugned decree was fraudulent and collusive and as such not binding upon the plaintiff, it is not at all necessary for the Court to frame and determine an irrelevant issue. Since the determination of the genuineness or otherwise of the bainapatra is beyond the scope of the suit, to learned Munsif rightly rejected the prayer of the plaintiff to frame an issue on it. Hasan Sikder Vs. Jahurul Haque Molla and others, 15 BLD (HCD) 659. Order XVI, rules 14(3) The direction to submit stamp and the drawing and signing of the final decree are mere ministerial act to be performed by the court staff and that cannot have any bearing to make the decree final. The provisions of sub-rule (3) of rule 14 of Order XXVI, of the Code had made it obligatory upon the court confirms or varied the report. [73 DLR 544] Order XVIII, Rule 12 The Court is not permitted to make remark about the demeanour of a witness after examination of the witness and after the deposition was read over and signed, but permits a Judge make such remark in the body of the Judgment under Or. 18, R. 12. C.P.C. Barkat Ali Vs. Messers. Commerce Bank Ltd. at pre-sent Agrani Bank, local Office, Sir lqbal Road, Khulna and others, 13 BLD (HCD) 530. Ref: Pothan Chandy Vs. Ouseph Kochonsepth, A.LR. 1951 TriKochin, 12 -Cited. Order XVIII, Rules: 1 and 2(1)- The defendant did not admit the case of the plaintiff and filed written statement denying the plaintiff's claim that the suit property was an abandoned property, so it was the plaintiff who had the right to begin the hearing of the suit as per provision of rule 1 of order XVIII of the Code. Rule 2(1) of the Code has clearly provided that on the day fixed for hearing of the suit the party having the right to begin shall state his case and produce evidence in support of the issues which he is bound to prove, the other party shall then state his cause and produce his evidence (if any) and may then address the Court generally on the whole case. Therefore, there was no scope on the part of the plaintiff to avoid examination of witness and state the facts of the plaint at the hearing of the suit. Government of Bangladesh -VS- Md. Mizanur Rahman, [4 LM (AD) 138] Order XVIII Rule 17- Recalling witnesses- It is also an established principle and a requirement of law that a party to the suit may be given the opportunity to call witnesses and produce any evidence at any time during the trial. The trial does not finish until pronouncement of judgement. ... Mortuz Ali Khalifa =VS= Jobeda @ Kalu Bibi, [8 LM (AD) 38] Order XVIII Rule 17 Evidence Act, 1872, Section—138 Discretion cannot be extended beyond the law of evidence to allow a party to the suit, who did not cross-examine a witness in time and without any excuse, to avail his right to cross-examine the witness, the whole purpose or object for such discretion is to advance justice but not to cause injustice. Abdul Munim and others Vs Mosstt Hazera Zaman and others, 21 BLD(HCD)338 Ref: Morsalin and ors. Vs. Nurul Huda and ors. 48DLR593; Abu Bakkar and another Vs. Md. Akbar Ali Biswas. 45 DLR62; Nurul Islam Vs. Md. Abdur Rashid. 27 DLR (AD) 32; AIR 1947 Born 156—Cited. Order XVIII rule 17 The Court can re-call a witness even while considering the judgment, if any ambiguity or omission is noticed. The power can be exercised suo motu and also at the instance of a party. Md. Hanif Ali v. Hajera Khatun and others, 22 BLD (HCD) 21 7. Order XVIII Rule 17 Court’s power to recall and examine witnesses. It is well-settled that under Order XVIII Rule 17 CPC the Court has ample power to recall at any stage a witness who has earlier been examined, cross-examined and discharged. The powers under this Rule are very wide and the court can recall a witness even while considering its judgment, if any ambiguity or omission is noticed. This power can be exercised at the instance of a party or even suo motu. Power conferred by Order XVIII Rule 17 C.P.C. is an enabling power and it has conferred very wide powers in the Court for effective and complete adjudication of disputes in doing justice in a given case. Md. Morsalin and others. Vs. Nurul Huda and others, 16 BLD (HCD) 15. Ref: 37 DLR (AD). 32; A.I.R. 1923 (PC) 95—Cited. Order XVIII Rule 16 and Order 26 Rule—I Under Order 18 Rule 16 C. P. C. the Court has ample jurisdiction to examine any witness at any stage of the proceeding if it is satisfied that such examination is expedient 1w the interest of justice. Order 26 Rule 1 C. P. C. authorises the court to issue a commission for the examination of witnesses on specified grounds. Khandaker Moulana Golam Akbar and others Vs. Amir Hamja and others, 15 BLD(HCD)91 Order XX, Rule 4(2) The finding of a learned Judge before considering the oral evidence on record is wholly unjustified. A learned Judge is called upon to consider the evidence. Thereafter, he is to formulate his finding. Where the evidence is not considered in its true perspective, the Judgment and decree passed by the Courts below are liable to be set aside. Md. Mafizuddin Vs. Sree Benu Pramanik and others, 13 BLD(HCD)523 Order XX Rule 4 Substitution of legal representative Any of the plaintiff on record or legal representative of the deceased plaintiff may file an application for substitution of the heirs of any of the deceased plaintiff. When a plaintiff in a case dies ordinarily all his or her legal representatives should be brought upon the record as plaintiffs unless some of them decide to be impeaded as defendants. In the instant case although the conercend heirs, who are left out earlier, did not take any steps for impleading themselves but the learned trial court on the application of other heirs of the deceased plaintiff rightly impleaded them as plaintiffs in the suit. Firoza Khanam and others Vs Dr. Golam Safiruddin and others, 20 BLD (HCD) 69. Ref: PLD1956(Pes)113; AIR 1939 (Patna) 225; Bangladesh Vs. Abul Kaiser Chowdhury and ors, 5 BLD(1985) (AD)273—relied. Order XX Rule 12 A suit for mesne profits instituted by the plaintiffs separately during the pendency of their previous suit for possession is not maintainable in law. The provisions of Order 20 Rule 12 C. P. C. do not apply to a suit for manse profits simpliciter as the contending parties in such a suit are required to adduce. evidence, for and against, as to the quantum of claim and the court is required to determine the issues on the basis of the evidence on record. Khaled Hamidul Huq and others Vs. Amina Khatun and others, 15 BLD (HCD) 322. Ref. A. 1. R. 1975 (Cal) 12; 66 C. W. N. 692—Cited. Order XX Rule I Judgment when pronounced Order XX Rule 1 of the Code of Civil Procedure provides that when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose of which due notice shall be given to the parties or to their Advocates. In the present case after hearing the arguments of the contending parties on 12.1.1984 the date for judgment was fixed on 22.1.1984 but it did not appear in the ‘daily cause list of the Court for 22.1.1984 and again it appeared in the ‘daily cause list’ of 6.2.1984. The judgment was delivered on 25.1.1984 without entering the same in the daily cause list for the day. There being nothing on record to show that the plaintiff or his lawyer had otherwise any information or knowledge that the judgment would be delivered on 22.1.84, the learned Courts below were wrong in not considering this vital fact in passing the impugned judgments. The appeal is allowed and the judgment of the trial court is maintained. Md. Samon Afiah Vs. Falani Be gum and others, 15 BLD (AD) 251. Code of Civil Procedure [V of 1908] Order 20 Rule 4(2) read with Order XL Rule 27 The procedure of pronouncement of judgment has been details in Rule 4(2) of Order XX of the Code of Civil Procedure that judgment and other courts shall contain and consise statement of the case, the points for determination, the decision thereon and the reasons for such decision. Rule 5 provides that in suits in which issues have been framed, the court shall state its finding or deci sion, with the reasons therefore, upon each separate issue. It appears to the High Court Division that though it is an ex-parte judgment but as per provision of Order XX Rule 4 and 5 the trial Court ought to have disposed of the suit considering and following the aforesaid provision of law. The procedure of pronouncement of judgment has been details in Rule 4(2) of Order XX of the Code of Civil Procedure that judgment and other courts shall contain and consise statement of the case, the points for letennination, the decision thereon and the casons for such decision. Rule 5 provides hat in suits in which issues have been ramed, the court shall state its finding or decision, with the reasons therefore, upon cach separate issue. But on perusal of the udgment the order No. 31 dated 12.09.2011 the trial court though passed the ex-parte decree but did not at all consider or follow the said procedure at stated in the Order XX of the Code of Civil Procedure. The court did not state the case of the plaintiff and also did not consider or states for determination of the case. Even the court though considered some deeds by which the plaintiffs had purchased the land from the appropriate authority of the suit property but ultimately dismissed the suit. The learned Advocate filed application for taking the documents of title as additional evidence provided under Order XL Rule 27 and in such circumstance of the facts since the trial court passed the impugned judgment without following the procedure provided under Order XX of the Code of Civil Procedure and since the plaintiffs has filed application for taking additional evidence of the documents which have been produced before the Court at the time of deposition by the P.W-1 but which ware not exhibited. In such circumstance of the facts it is the High Court Division view that it is better to send back the case on remand to the trial court to dispose of the suit afresh considering the findings of the court and the application filed by the appellant under Order XLI Rule 27 for taking additional evidence giving scope to the parties to prove their cases. In the result, the appeal is allowed. Md. Rafiqul Islam and others Vs. Chairman Narayangonj Pouroshava and others (Civil) 20 ALR (HCD) 20-23 Order XX Rule 5 Court to decide each separate issue framed A plaint cannot be rejected giving a decision on a particular issue when other issues already been framed on the pleadings of the contending parties. The trial Court was perfectly justitified in holding that the question of maintainability of the suit on the ground of res judicata can. be decided at the trial on taking evidence. Under such circumstances the plaint cannot be rejected. Jugal Kishore Sarker Vs. Md. Sohrab Ali Sk, 16 BLD (HCD) 549. Ref: 40 DLR 236; 14 BLD 1— Cited. Code of Civil Procedure [V of 1908] Order 20 Rule 18(1)(2)-Whether it is incumbent upon the Court to deal with the title of the parties in a suit for partition? Since in a partition suit, a person approaches the Civil Court with grievance of not being able to enjoy his/her property absolutely independently or peacefully and, in responding to the plaintiff's case, if the defendant questions the very title of the plaintiff, in that scenario, it is incumben upon the Court to assess and determin the plaintiff's title, right and interest the suit land. Even, if the plaintiff is nou opposed/encountered by the defendant as to title on the suit land, it would be a prudent performance for a Court to examine the source/basis of the plaintiff's as well as defendant's ownerships in the suit land and thereby determine the title of the plaintiff and the defendant/s. Because, it would not only be useful and helpful for the Court- appointed Commissioner or the Collector to proceed further with the suit towards execution of the decree, but it would also help to curb multiplicity of suits. In a suit for partition or separation of a share, irrespective the defendant's challenge as to the plaintiff's share in the suit land, the Court, at the first stage, would decide whether the plaintiff has a share in the suit property and whether s/he is entitled to division and separate possession. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as 'decree' under Order 20 Rule 18(1) of the CPC and termed as 'preliminary decree' under Order 20 Rule 18(2) of the CPC. The con- sequential division/separation by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/ combinations/ alternatives of division is referred to the Collector under Order 20, Rule 18(1) of the CPC and is the subject matter of the final decree under Order 20, Rule 18(2) of the CPC. Md. Akram Ali and others Vs Khasru Miah and others (Civil) 19 ALR (HCD) 124-148 Order XXI Rule 16 In a pending suit, the provision of the aforesaid Order is applicable. The words “during the pendency of the suit” clearly mean before a final decree or order has been passed or made in the suit. The only question to be decided on an application under Order 21, Rule 16 of the Code is whether the application is the person entitled to execute the decree. Manik Chand Bibi alias Rezian Nahar and another Vs. Abdul Mutakabbir Chowdhury, 13 BLD (AD) 75. Order XXI Rule 16 When the petitioner himself consented to the execution of the decree by making an endorsement of objection he is debarred from raising the question of service of notice subsequently. Md Selim Vs Amir Hossain and others, 21 BLD (AD) 133. Order XXI Rule 19 An application under Order XXI Rule 19 is not maintainable by a judgment-debtor for F legal set-off. On general principles and in exercise of its inherent power and executing Court can entertain and give effect to a claim to set-off, even in cases which do not come strictly under Order XXI Rule 19 of the Code. An equitable set-off can be claimed in a case where cross demands arise out of the same transaction or where they are so connected in nature or circumstances that it would be inequitable to allow one party to execute his decree depriving the other party to separate proceedings. No party as of right can claim such set-off, which may be granted by a Court in its discretion to be exercised judicially. Shankar Lal Das v. Janata Bank and others, 22 BLD(HCD) 54 Ref: Bank of Dacca Ltd. V. Gour Gopal Saha AIR 1936 Cal. 409; B. Sheshaiah v. Veerabhadrayya AIR 1972 AP 134. Order XXI Rule 22 The executing court acted beyond jurisdiction in issuing the notices upon the judgment debtors in as much as the Court is not required to issue such notice as the decree execution case has been filed within three months from the date of the decree. Haji Jahanara Begum and others Vs Managing Director, Rupali Bank and others, 20 BLD (HCD) 455. Ref: Abbasuddin Chowdhury Vs. Chandra Mohan Chowdhury, 18 DLR Page 535—Cited. Order XXI Rule 22 Order 21 Rule 22 of the Code provides that if the execution case is filed after two years from the date of the decree, a show cause notice ought to be issued upon the judgment-debtor. In the instant case the decree was drawn up and signed on 15.9.1999 and the execution case was filed on 29.11.1999. Since the execution ease was filed within three months from the date of passing the decree issuance of notices upon the judgment-debtor was illegal and without jurisdiction. Managing Director, Rupali Bank Vs Haji Jahan Ara Be gum and others, 21 BLD (AD) 137. Order XXI, Rule 26 When the plaintiffs got a decree on contest and the petitioners were parties in the original suit, further proceedings of the execution proceeding cannot be stayed for the sake of filing a subsequent suit by the petitioners. Md. Jabed Ali Sheikh & -others v. Md. Abdus Sobhan Sheikh & others, 22 BLD (AD) 183. Order XXI Rules 26 and 29 Stay of execution of a decree when to the refused? If it appears to the Court that the petitioner filed successive suits to frustrate the decree obtained in an earlier suit, the prayer for staying the further proceedings of the execution case is liable to be rejected as being not bonafide. The stay of an execution case is purely a matter of judicial discretion for the Court and when the exercise of such discretion is justified by the materials on record, the same calls for no interference by the Appellate Division. Asia Khatun being dead her legal heirs and representatives : Bulbul Ahmed and others Vs. Rahatun Nesa and another, 15 BLD (AD) 47. Order XXI Rule 29 It provides that where a suit is pending in any Court against the holder of a decree of such Court at the instance of the judgment- debtor, the Court may stay execution of the decree until the pending suit has been decided. This contemplates the pendency of a suit between the decree-holder and the judgment debtor in respect of the decree in question and it has no reference to any suit filed by a third party. In the instant case, by the impugned order the execution cases have been stayed at the instance of a third party and as such the same is not maintainable in law. Abul Kalam Vs. Kafiluddin, 16 BLD (HCD) 617 Ref: 1981 BCR (HC) 01; 15 BLD (AD) 47 — Cited. Order XXI, rule 29- It is by now a well settled legal principle that a stranger to a decree cannot invoke the provisions of Order XXI, rule 29 of the Code for staying the proceedings of an execution case and for ready reference. Zainab Banu =VS= Md. Nisar Uddin, [3 LM (AD) 503] Order XXI Rules 26 and 29 Stay of Execution of a Decree The granting of stay of the execution of a decree is in the discretion of the Court but such discretion must be exercised judiciously. The High Court Division was wrong in mechanically staying the execution of the decree passed by a competent Court without considering the facts and circumstances of the case and the materials on record, on untenable and frivolous pleas. Abdul Karim Sarkar and others Vs Moslemuddin Fakir alias Moslemuddin Sarkar and others 17 BLD (AD) 61. Order XXI Rule 29 read with section 151 An application for stay under Order 21 Rule 29 read with section 151 of the Code is maintainable in the subsequent suit challenging the decree pending in the same Court for stay of the execution proceeding arising out of the decree between the judgment creditor and the judgment debtor. Zagir Hussain Vs. Aminul Haque and others, 19 BLD (HCD) 366. Ref: PLD 1957 (Dhaka) page 603; AIR 1931 Bombay 247—Cited. Code of Civil Procedure [V of 1908] Order 21, rule 29 read with Section 151 Where a person claimed that he was in possession of the disputed property and if it was sought to be delivered in a proceedings to which he was not a party it was certainly a matter that could be regarded as an abuse of the process of Court and as such, the civil court could stay the execution case under its inherent power. The Appellate Division held that the plaintiff who was a 3rd party in the execution case in question having categorically asserted that he had his homestead in the suit land and he was in possession thereof and on holding local inspection, the fact of existence of dwelling houses having been found in respect of which earlier decree was passed and that the defendants themselves filed the suit for evicting him therefrom and thus they admitted the plaintiff's possession in the suit land prima facie shows that it would have been an abuse of the process of Court if the possession of the suit land would have been delivered to the decree-holder through the execution case in question before the suit was being heard. Besides the above, in the plaint, the plaintiff also alleged fraud in obtaining the decree in the suit giving rise to the execution case in question. In the above back ground, the High Court Division did not commit any error of law holding that the learned Dis- trict Judge rightly passed the order staying further proceedings of the execution case in question. Therefore, no interference is called for with the impugned judgment and order. Zainab Banu and others -Vs- Md Nisar Uddin and others (Civil) 15 ALR (AD)192-196 Order XXI Rule 32(2) Where on evidence it is proved that the university authorities wilfully disobeyed the order of the Court in publishing the result of the plaintiff, they are liable for civil imprisonment or attachment of the property f university as envisaged by Rule 32(2) of Order 21 C.P.C. The Order of the Court directing the university authorities to publish the result of the plaintiff partakes the nature of mandatory injunction, wilful disobedience of which makes the judgment-debtors liable for detention in civil imprisonment and their properties are liable for attachment under Order 21 Rule 32 (2) C.P.C. University of Chittagong and another Vs. A.KM. Monirul Haque and others, 15 BLD (HCD) 551. Code of Civil Procedure [V of 1908] Order 21 Rule 37 and 38 read with Administrative Tribunal Act, 1980 Section 4(2) Agrani Bank Limited has not complied with the earlier order passed by the Administrative Tribunal which was upheld by the Administrative Appellate Tribunal. That order, having not been challenged, is binding upon the Agrani Bank Limited. Since the Agrani Bank was not complying with the order of the Administrative Appellate Tribunal, the respondent filed Miscellaneous A.T. Case No. 8 of 2008 (Execution) under order XXI Rule 37 and 38 of the Code of Civil Procedure. Upon hearing the parties the application was allowed by order dated 17.01.2012 directing the concerned authorities to pay all the dues to the espondent up to 26.10.2008, the date on hich he was reinstated. This order was pheld by the Administrative Appellate ribunal by the impugned judgement, dated 2.02.2013. The Administrative Appellate Tribunal found that the respondent was entitled to get arrear salary and pension enefit till 26 10.2008 and that the order of Agrani Bank Limited was in gross Violation of the earlier order of the Tribunal, and that the latest order of the Tribunal dated 17.01.2012 was not illegal. Having perused the earlier orders of the Administrative Tribunal it is patently clear that Agrani Bank Limited has not complied with the earlier order passed by the Administrative Tribunal which was upheld by the Administrative Appellate Tribunal.. That order, having not been challenged, is binding upon the Agrani Bank Limited. In the facts and circumstances detailed above, the Appellate Division does not find any illegality or infirmity in the decision arrived at by the Administrative Appellate Tribunal, Dhaka. In the Appellate Division view, the decision does not call for any interference by the Appellate Division. Accordingly, the civil petition for leave to appeal is dismissed. Agrani Bank Limited and others-Vs- Md. Salek Uddin (Civil) 23 ALR (AD) 14 Civil Procedure Code [V of 1908] Order 21, Rules 43, 68, 69, 77, 78 & 79-Whether the executing Court is competent to cancell the auction after confirming the auction-sale. Once the auction-sale is confirmed by the executing Court upon being satisfied. that the auction-purchaser has complied with the Directions and Orders issued/passed by the executing Court from time to time, including the payment of the consideration money within the stipulated time, then there is no scope for the executing Court to show any sympathy to the Judgment-Debtor even if the Judgment Debtor pays full decreetal amount together with a further amount of solatium after confirmation of auction-sale. Bangladesh Maritime Carriers Ltd. Vs. Jamuna Oil Company Lid and others (Civil) 16 ALR (HCD) 313-317 Order XXI Rule 52 Bangladesh Bank Order, 1972, Section—71 The Governor of Bangladesh Bank is a Public Officer for the purpose of Part IV and Order 21 Rule 52 C. P. C. as well as within the meaning of Article 71 of the Bangladesh Bank Order, 1972. The Code of Civil Procedure and the Bangladesh Bank Order, 1972 are both acts of Parliament. The Governor of Bangladesh Bank being a Public Officer is under a legal obligation to obey the direction of the Court for payment of the decreetal amount out of the ‘Consolidated Fund” for the satisfaction of the decree and in doing so no further or independent instrument is necessary. Bangladesh Bank Vs. Mrs. Rana Awan and others, 15 BLD (HCD) 27. Order XXI, Rule 58 If in execution of a decree any property is attached, any person interested in it may raise objection that such property is not liable to attachment. After such claim or objection is raised, the Court should investigate and adjudicate upon the claim or objection. It appears that the executing Court without any investigation rejected the application by two words. Where a third party has claimed property under attachment in execution of a decree and filed an application under the provision of law, it becomes the duty of the Court to investigate the claim. The executing Court should not reject the application without assigning any reason. Foyez Ahmed and others v. Uttara Bank Ltd. and others, 22 BLD (HCD) 564. Code of Civil Procedure [V of 1908] Order 21 Rule 58 read with Artha Rin Adalat Ain [VIII of 2003 Section 57 read with Transfer of Property Act, 1882 Section 91 and 92 The right of redemption of the petitioner is protected as per provision of section 91 of the Transfer of Property Act, 1882. The Artha Rin Adalat has ample power to allow redemption of the mortgaged property after satisfaction of the bank's claim. It appears to the High Court Division that the petitioners were added as 3rd party in Execution Case No. 01 of 2002 and it was for recovery of money. They have interest as such they have paid of the decretal amount along with interest of Tk. 15,12,805/. Therefore the bank is to release the mortgaged property in favour of the petitioner but fact remains that there is a money suit being Money Suit No. 41 of 1999 wherein an application was allowed under Order 38 Rule 5 of the Code of Civil Procedure and the property is under attachment. The instant case property may be released subject to clearance from the money suit case No. 41 of 1999. The order Nos. 67 to 85 is however become redunded as already the petitioner has obtained an order in Writ Petition No. 5212 of 2003 postponding the auction till disposal of the petition of redemption. However, the right of redemption of the petitioner is protected as per provision of section 91 of the Transfer of Property Act, 1882. The Artha Rin Adalat has ample power to allow redemption of the mortgaged property after satisfaction of the bank's claim. The order in Writ Petition No. 5212 of 2003 was not communicated to the Artha Rin Adalat in time by the petitioner due to his illness. Meanwhile Artha Rin Adalat passed vide Order No. 67 dated 13.6.2007 directing judgment debtors to pay Tk. 13,77,506/85 in 4 equal installment by 10 of each months. Against which the Bank filed writ the petition No. 7532 of 2007 challenging Order No. 67 dated 13.6.2007 and that was rejected summarily. Under such facts and circumstances the High Court Division finds substance in this Rule. Accordingly the Rule is made absolute subject to release of attachment made in Money Suit No. 41 of 1999. Mostafa Sadique and others -Vs- Artha Rin Adalat No.4. Dhaka and others (Civil) 23 ALR (HCD) 19 Order 21, Rule 58 The property has been attached for exe-. cution of decree which was obtained on contest and the property has been attached for realization of the decretal dues of Habib Bank Limited. Uttara Bank Limited was not a third party claimant as such the application under Order 21 rule 58 of the Code of Civil Procedure by them was incompe- tent. The High Court Division further held that Uttara Bank Limited may how- ever represent their claim before the executing Court and the executing Court will decide the claim in accordance with law. Uttara Bank Limited vs. Subordinate Judge and Artha Rin Adalat No.4, Dhaka (M.M. Ruhul Amin J (Civil) 4 ADC 522 Order 21, Rule 21, 89 Judgment debtor was put into auction and the respondent No. 2 being the highest bidder the suit property was sold to him in the auction sale. Md. Mokaddas Ali and others vs. Artha Rin Adalat (Sub-ordinate Judge). Dinajpur & others (M.M. Ruhul Amin J)(Civil) 4 ADC 562 Code of Civil Procedure [V of 1908] Order 21 rule 83 read with Artha Rin Adalat Ain [VIII of 2003] Section 33(5)- The postponement of sale under rule 83 is at the discretion of the Court and not dependent on the consent of the parties. No sale shall be postponed unless a fair case is made out in favour of raising amount of decree. The petitioner failed to show the High Court Division how to raise the proceeds of sale by selling the mortgage property through private alienation and unless such satisfaction, the Court cannot grant a judgment debtor to take the privilege of order XXI of rule 83 of the Code. Since the certificate under section 33(5) of the Ain, 2003 has been issued in favour of the decree-holder bank, for possession and enjoyment of the mortgaged property with the liberty to sell, the decree holder bank shall take fruitful effort to get the decretal amount with interest thereof by selling the mortgaged property. The High Court Division held that the petitioner failed to satisfy the Court upon showing any sort of document namely placing the Mouza rate of the property wherefrom the Court can consider his submission in accordance with the provisions of order XXI sub-rule (1) and (2) of rule 83 of the Code. There is no doubt Court can grant certificate to a judgment debtor to sell the mortgaged property in order to raise the amount of decree under the provisions of sub-rule (1) and (2) of rule 83 of order XXI of the Code if the said sale of property is not directed to be sold in execution of a decree for sale in enforcement of a mortgage of or charge on, such property. The petitioner failed to show the High Court Division how to raise the proceeds of sale by selling the mortgage property through private alienation and unless such satisfaction, the Court cannot grant a judgment debtor to take the privilege of order XXI of rule 83 of the Code. There is another impediment to private sale of the mortgaged property as the property is not in hand of the Court. Since the certificate under section 33(5) of the Ain, 2003 has been issued in favour of the decree-holder bank, for possession and enjoyment of the mortgaged property with the liberty to sell, the decree holder bank shall take fruitful effort to get the decretal amount with interest thereof by selling the mortgaged property. However in that case, the High Court Division considers it prudent to direct the decree holder-bank to communicate such effort to the petitioner- judgment debtors so that they can take effective steps to save their property upon satisfying the decretal amount under the provisions of order XXI, rule 89 of the Code in accordance with law. Having gone through the materials on record and reasons stated hereinbefore, the High Court Divi- sion does not find any substance in the Rule. Accordingly, the Rule is discharged. S.M. Shadat Hossain -Vs- Ministry of Law and 2 (two) others. (Spl. Original) 15 ALR (HCD) 308-310 Order XXI Rule 85 and 86- Specific procedure for holding auction- Artha Rin Adalat is a Civil Court and subject to the provisions of the Ain, the Artha Rin Adalat have all the powers and jurisdictions under the Code of Civil Procedure, 1908- In the case of Sultana Jute Mills Ltd. And others Vs. Agrani Bank Ltd. and others reported in 14 BLD(AD) 197 this Division observed that the Artha Rin Adalat Ain is a special legislation providing for special measures to realise loans given by financial institutions. Section 5(4) of the Act gives Artha Rin Adalat the powers and jurisdiction of a Civil Court, but subject to the provisions of the Act itself. Section 5(5) of the Act makes the Code of Civil Procedure applicable to the proceedings of the Artha Rin Adalat but only if the Ain does not contain anything different. Reported in 20 BLD (AD) 162 stating that according to subsection (4) of Section (5) of the Ain the Artha Rin Adalat is a Civil Court having all the powers and jurisdiction under Civil Procedure Code, 1908, subject to the provision of the Ain. Reported in 8 MLR(AD) page 4 observed that under Section 5(4) of the Artha Rin Adalat Ain, 1990, the Artha Rin Adalat is a Civil Court and subject to the provisions of the Ain, the Artha Rin Adalat have all the powers and jurisdictions under the Code of Civil Procedure, 1908. observed that under Section 5(4) of the Artha Rin Adalat Ain, 1990, the Artha Rin Adalat is a Civil Court and subject to the provisions of the Ain, the Artha Rin Adalat have all the powers and jurisdictions under the Code of Civil Procedure, 1908.02 The instant auction was held under Artha Rin Adalat Ain, 1990 which did not provide specific procedure to be followed for holding auction and as to time limit for payment of auction money, the Adalat followed the provision of the Code of Civil Procedure rightly. Consequently, we do not find any force in the submissions. The appeal is allowed. Judgment and order of the High Court Division is set aside. The impugned orders of the Adalat are hereby declared to have been passed without lawful authority and are of no legal effect. The Adalat shall proceed with the Execution Case in accordance with law. ...S.M. Masud Hasan =VS= Judge, Artha Rin Adalat No.3, Dhaka, [7 LM (AD) 117] Order XXI Rules 85 and 86 Time for full payment of purchase money and procedure in default of payment It provides that the full amount of the purchase-money payable shall he paid by the purchaser into the Court before the Court closes on the 15th day from the date of sale of the property after deducting the set-off, if any, to which the purchaser may be entitled under Rule 72. Rule 86 of the above Order provides that in default of payment within the period mentioned in Rule 85, the deposit money may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property, be re-sold and the defaulting purchaser shall forfeit all claims to the property or any part of the same for which ft may subsequently be sold. In the instant case, the auction took place on 9.5.1984 and the auction purchaser deposited one fourth of the bid-money and he was required under the law to deposit the balance of the money on or before 24.5.1994 but without making full payment within time, the purchaser filed an application before the Court on 9.6.1994 for allowing him time to deposit the balance of the bid-money and the Court allowed his prayer till 30.6.1994. This order granting time to the purchaser is clearly beyond the scope of Order 21 Rules 85 and 86 of the Code and is illegal because by that time the auction purchaser forfeited all his rights to the property as well as to the earnest money. Sonali Bank Vs. Md. Siddiqur Rahman Bhuiyan and another, 15 BLD (HCD) 610. Ref: Nawal Kishore Vs. Bhuttu Mal, A.I. R. 1935 (All) 243; Haj Enam UBah Vs. Mohammad idris, A.I.R. 1943 (All) 282— Cited. Code of Civil Procedure [V of 1908] Order 21 Rule 90 Artha Rin Adalat Ain [VIII of 2003] Section 33(2ga) Whether the Adalat should accept the highest offer inspite of raising objection by the Bank and the borrower by filing application under section 33(2ga) and ultimately by filing miscellaneous cases under Order 21 Rule 90 of the Code. The High Court Division held that under the Artha Rin Adalat Ain, in course of realization of Banks' loan when the property is mortgaged as security, the Adalat disposes the same for the interest of the Bank in order to recover its dues and in doing so the Adalat acts as an handling agent. By the decree under artha rin suit and on failure to pay it by the judgment debtor, the Act, 2003 provides procedure to dispose of mortgaged property by the Adalat under section 33 of the said Act by way of selling the same through auction or by issuing certificate in favour of the decree-holder-Bank under section 33(5) of the said provision whereby the Bank itself can again sell the said property through auction and thirdly, the Bank has got another option to get the property by way of title certificate under section 33(7) of the Act. Therefore, the Adalat is not obliged to sell the property even at the lower price, particularly, when the Bank (decree-holder) raises objection to the value and it has the scope to dispose of the said property under sections 33(5) and or 33(7) of the Act, 2003. Agrani Bank Limited Vs. The Judge, Artha Rin Adalat, 1" Court, Dhaka and others (Spl. Original) 18 ALR (HCD) 285-293 Code of Civil Procedure [V of 1908] Order 21, rules 90 and 91 Artha Rin Adalat Ain [VIII of 2003] Section 32-The application under section 32 of the Ain, 2003 was not maintainable as the same was filed without depositing security equivalent to 25% of the decretal amount as per provision of section 32 of the Artha Rin Adalat Ain, 2003. The Appellate Division observed that sub-section (2) of section 32 shows that it is the precondition to deposit security equivalent to 25% of the decretal amount in order to lay claim to an immovable property involved in an execution case, but admittedly in this case, the petitioners did not deposit any security for the said amount. The language of sub-section (2) is absolutely mandatory in nature consequence of non-deposit of such security has been provided therein and since the petitioners did not deposit security equivalent to 25% of the decretal amount, their application was incompetent Therefore, the Appellate Division does not find any error with the impugned judgment passed by the High Court Division in affirming the order passed by the Artha Rin Adalat in that respect. It further appears that the mortgaged property was sold in auction on 19.01.2010, whereas the application under section 32 of the Ain, 2003 was filed by the petitioners on 11.02.2010. The High Court Division took notice of the fact that the sale certificate of the auction sale was issued on 21.03.2010 and was registered on 22.03.2010, whereas the Rule in the writ petition was issued on 05.05.2010 and the learned Advocate for the petitioners could not deny the said fact before it. The fact that the sale certificate in respect of the mortgaged property was issued on 21.03.2010 and was registered on 22.03.2010, has not been denied in the leave petition before this Division. In view of the above, the Appellate Division finds no merit in this leave petition. Mohammad Gias Uddin Chowdhury and others -Vs- Bangladesh, repress-ented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs, Bangladesh Sec- retary, Ramna, Dhaka and others (Civil) 16 ALR (AD) 125-127 Code of Civil Procedure [V of 1908) Order 21 Rule 95 read with Public Demands Recovery Act, 1913. Merely because the form under CPC has been used, it cannot be said to ba forged. The Appellate Division has examined th form prescribed under the CPC and th form prescribed under PDR Rules and appears that both the forms are more or les identical in nature. However, it b mentioned that forms under CPC has be used in the auction sale certificate and w of delivery of possession and so the wo decree of the said printed form remained it. Therefore, merely because the for under CPC has been used, it cannot be sai to be forged. Exhibit 2 and 2(ka) were issued in the year 1953, i.e. these documents are more than 60 years old and produced from genuine custodian of the same. Thus, The Appellate Division does not find Exhibit 2 and 2(ka) are forged documents rather, on perusal of the documents it appears to us that these documents are original/genuine documents. (Per Zinat Ara J. majority) Zakir Hossain and another Vs. Md. Yousuf Kabir and another (Civil) 17 ALR (AD) 35-59 Order 21, Rule 99 The executing court noticed that the prayer for stay was earlier rejected and same was challenged but without success and finally Civil petition No. 331 of 2002 was filed before the Appellate Division which dismissed the same. The executing court also noticed that the petitioner has been trying to delay the disposal of the said Execution Case. Accordingly the executing court by order dated 24.6.2002 rejected the prayer for stay of further proceedings of other Execution Case No.4 of 1998 till disposal of Miscellaneous Case No. 29 of 2002. The petitioner then filed the said Civil Revision No. 3262 of 2002 against the said order dated 24.6.2002 and the rule issued therein was eventual- ly discharged by the impugned judg- ment and order dated 3.5.2002. Shamsul Arefin Rao vs. Mahbub Hossain (Md. Joynul Abedin J) Civil 5 ADC 147 Code of Civil Procedure [V of 1908] Rules 99 and 101 of Order 21 read with section 151 A transferee pendente lite is not entitled to the benefit of the procedure under Rules 99 and 101 of Order XXI of the Code of Civil Procedure. Rule 102 of Order XXI of the Code of Civil Procedure does not apply to the purchase of respondent No. 1 and he was admittedly a 3rd party, who was dispossessed in execution of the decree passed in Title Suit No. 103 of 2004 renumbered as Title Suit No. 2725 of 2008. Therefore, Miscellaneous Case Filed by him under Rules 99 and 101 of Order XXI read with section 151 of the Code of maintainable. Procedure Civil was The Appellate Division opined that in the case in hand, Rafique Ahmed Khan was dead long before the institution of the suit and as such, the purchase of the suit land by the 3rd party from the attorneys of the heirs of Rafique Ahmed Khan cannot be ermed as purchase during pendency of the suit and therefore, the doctrine of lis pendence shall not apply here. In the light of the findings made before, it appears that Rule 102 of Order XXI of the Code of Civil Procedure does not apply to the purchase of respondent No. I and he was admittedly a 3rd party, who was dispossessed in execution of the decree passed in Title Suit No. 103 of 2004 renumbered as Title Suit No. 2725 of 2008. Therefore, Miscellaneous Case filed by him under Rules 99 and 101 of Order XXI read with section 151 of the Code of Civil Procedure was maintainable. The findings. arrived at by the High Court Division having been based on proper appreciation of law and fact do not call for interference. Accordingly, this civil petition for leave to appeal is dismissed. Md. Ali Amjad Khan - Vs. Md. Habibullah Dawn and others (Civil) 20 ALR (AD) 148-150 Order XXI Rules 101 and 103 A bonafide claimant has to be put back into possession of the disputed property as mandated by Rule 101 notwithstanding the Suit filed under Rule 103 to establish the right of the plaintiff to the present possession of the property. The direction under Rule 101 cannot be held back on the ground of institution of the suit under Rule 103 of Order XXI of the Code. Md. Abdul Kaiyum Vs Krishnadhan Banik being dead his heirs Bijan Kumar Banik and others, 17 BLD (AD) 167. Order XXII Although Order 22 does not per see apply to a proceeding in revision, it has been the consistent practice of our Courts to treat an application for substitution in a Revision case under Order 22 C.P.C. and on that analogy if an application is filed beyond 90 days, same plausible explanation becomes necessary to condone the delay. The Rule, of course, does not abate for non-substitution within 90 days. As the power in revision can be exercised suo-motu, Courts have always been liberal in allowing substitution in a revision case provided there is no gross laches on the part of the party concerned. Badal Kanti Barua and others Vs. Must. Jigarunnessa, 14 BLD (AD) 203. Ref: PLD 1949 Lahore (FB) 541; AIR. 1977 (Cal) 241; 33 DLR (HCD) 168; 21 I.C’ 407: 18 Cal. L. I. 141—Cited. Order XXII Rule 10(1) Procedure in Case of assignment before final order in a suit The learned Subordinate Judge by exercising his judicial discretion ordered for impleading opposite party No. 2 as a plaintiff in the suit having regard to the fact that he has a substantial interest in the suit property. This kind of judicial discretion is not always open to the revisional jurisdiction of the High Court division unless the discretionary power has been exercised arbitrarily or fancifully and unless the order is contrary to legal principles governing the exercise of such discretion. Sarafat Au Vs. Pranballav Sarker and others, 18 BLD (HCD) 157 Ref: A1R1959(cal)368; A1R1977(Kerala) 83 ;-Cited. Order XXII Rule 9 Effect of abatement and setting aside abatement If no substitution is made within time a suit abates in so far as it relates to the deceased plaintiff or defendant. Rule 9 of Order XXII C.P;C. provides for setting aside abatement or dismissal on the satisfaction of the Court that the party concerned was prevented by any sufficient cause from continuing the suit. S. M. Anisur Rahman Vs Bangladesh and others, 16 BLD (HCD) 299. Order XXII Rule 9(2) Sufficient cause The expression sufficient cause’ occurring in rule 9(2) of Order 22 of the Code seems to have always been liberally construed so as to advance substantial justice unless there is gross negligence or want of bonafides on the part of the party seeking the relief. Nurul Islam Sarker and others Vs. Shara Mongala Debi and others, 21 BLD (HCD) 25. Ref: 48BLD(AP)164; Wali and ors. Vs. Manak Ali and ors, 17DLR(SC)536; Azemon Nessa Vs. Rup Gani, 39 DLR6; Union of India Vs. Charon, AIR 1964 (SC) 215—Cited. Order XXII, Rule 2 It is true that there is no limitation for substitution of the heirs and deceased parties in a revisional application but in a suit for partition the heirs of the deceased defendants or plaintiffs as the case may be should be brought on record or else the complication shall fol low. In such a situation when an application has been filed for substitution on setting aside the abatement it ought to have been allowed. Md. Hossain vs Dilder Be gum (Mahtnudul Ainin Choudhury J) (Civil) I ADC 49 Order XXII Substitution and Abatement Where the legal representatives of a party to a proceeding have already been brought on record in a connected and inter dependent proceeding, even though in a Superior Court, it is totally unnecessary to insist upon a repetation of the same process in lower court. In such a case the question of abatement does not arise. In the instant case the heirs of deceased defendant No. 3 were brought on record by substitution in Misc. Case No. 25 of 1969 which arose out of the suit, and the same was a good substitution of the heirs of the deceased defendant No. 3 for the suit itself and no further application for substitution was necessary. The plaintiff was only required to file an application for recording by way of correction the names of the legal representatives of the deceased defendant in the plaint. Akhtar Banu being dead her heirs Alhaj Md. Hossain Khan Vs. Habibunnessa 16 BLD (AD) 273. Ref: Brijilndar Singh Vs.Kanshi Raw, A1R1917 (PC) 156; Ghulam Abbas Vs. Hashim, 1969 SCMR 257, Gobind Saha Vs. Zafar Kari, A.I.R. 1925(Pat)145 — Cited. Order 22 rule 9(2) (3) The learned Judge of the High Court Division has failed to construe properly the application for setting aside the abatement which substantially met the requirements of Order 22, Rule 9 (2) (3) of the Code of Civil Procedure and was wrong in holding that but for a separate application for condonation of delay the prayer for setting aside abatement was to fail. Abdul Kader Mondal and ors - vs- Shamsur Rahman Chowdhury alias & Shamsur Rahman Saha (Latifur Rahman J) (Civil) 3ADC 734 Order XXII Rule 4(1) Procedure in case of death of defendants-Rights of parties in a partition suit Defendant No. 5 Abdus Salam contested the suit by filing written statements and died two months before the passing of the final decree on 3.5.1984 without bringing his legal representatives on record by way of substitution. The trial Court allotted a specific saham of land to deceased defendant No. 5 Abdus Salam. It is true, the rights of the contending parties in a suit for partition are determined in the preliminary decree and the final decree is just a follow-up of the preliminary decree in effecting partition by metes and bounds keeping in view the existing possession of the contending parties as far as practicable. The final decree is, in fact, a continuation of the preliminary decree in course of which the parties are put to actual physical possession of the suit properties according to sahams allotted a specific saham, it is likely that his vital interests would go unrepresented and he is likely to be adversely affected thereby. In the instant case, contesting defendant Abdus Salamhad died before the passing of the final decree without bringing his legal representatives on record. The petitioners are definitely prejudiced by such a decree and their interests have been adversely affected. The learned trial Court erred in law in not substituting the heirs and heiresses of deceased defendant Abdus Salam and in not bringing them on record in the execution proceedings. Kabirunnessa and others Vs. Abdul Shahid and others, 18 BLD (HCD) 78. Order XXII Rule 2 There is no limitation for substitution of the heirs of deceased parties in a revisional application. In a suit for partition, the right to sue survives till final decree is made and heirs of deceased defendants or plaintiffs should be brought on record or else complications shall follow. Md. Hossain and others v. Dildar Begum and others, 22 BLD (AD) 111. Order XXII, Rule 4 (4) When a party to a suit dies, then either an application for substitution of his or her heirs! heiresses or an application for seeking exemption in accordance with Order 22 Rule 4 (4) C. P. C. is required to be filed within the statutory period of 90 days. A plaintiff cannot get the exemption automatically without filing an application and the Court cannot exercise the power of exemption after the suit has abated. Khaled Hamidul Huq and others Vs. Amina Khatun & ors., 15 BLD (HCD) 322. Order XXII Rule 9(2) In considering the prayer for substitution the Court has a duty to see whether the application has been filed in time and whether the suit has abated in the meantime for non- substitution. Mrs Saleha Khatun and others Vs Most Fatema Hajura and others, 20 BLD (HCD) 438. Ref: Maqbul Ahamed and ors Vs. Shoeb Chowdhury and ors, 44DLR(1992)165; Ref: Md. Matiur Rahman Vs. Lal Banu Bibi and ors. 1986 BLD 432. Order XXII Rule 10 In the facts and circumstances of the case and in view of the finding of the lower appellate court that because of the formation of trust committee, the appellant as the Secretary of the committee was entitled to be substituted under Order XXII Rule 10 C.P.C. in the suit in question. The High Court Division upon taking an erroneous assumption of the real facts wrongly passed the impugned Judgment. Falguni Majumder Vs Mokbul Hossain Biswas and ors, 19 BLD (AD) 223. Order XXII Rule 9(2)(3) Effect of abatement and setting aside abatement It has been consistently held by the superior Courts of the subcontinent that the provisions of Order XXII Rule 9(2)(3) of the Code should be liberally construed as the abatement of a suit or a legal proceeding precludes a fresh suit or a legal proceedings on the same cause of action without a trial of the case on merit. Abatement on the death of a party to a legal proceeding follows automatically unless his legal representatives are substituted within the prescribed time. For setting aside abatement the applicant has to prove that he had no earlier knowledge about the death of the deceased party and he has no laches and negligence in making the prayer for setting aside abatement. Shakainath Mohanta Vs Md Tatikuddin Mondal and others, 19 BLD (HCD) 570. Ref: 39 DLR6; Abdul Kader Mondal Vs. Md Shamsur Rahman Chowdhury, Civil Petition No. 40 of 1995—Cited. Order XXII Rule 9 (2) (3) It has been consistently held by almost all the superior Court of the subcontinent that the provisions of Order 22, Rule 9(2)(3) of the Code should be liberally construed. The reasoning is that abatement of a suit precludes fresh suits on the same cause of action, although there is no trial on merit of the case if abatement is not set aside the applicant is deprived to the opportunity of proving his case only on account of his culpable negligence or lack of vigilance. Refusal to condone delay may result a meritorious matter being thrown out without any hearing. It is ordinarily always desirable that delay is condoned and substitution is allowed so as to decide a case on merit upon hearing the parties unless there are deliberate negligence on the part of the applicant. Abdul Kader Mondal and ors. Vs Md. Shamsur Rahman alias Md. Shamsur Rahman Saha, 19 BLD (AD) 183. Ref: AIR 1964 SC 215; 40 DLR 10; 39 DLR (HCD)6—Cited. Order XXIII Rule 1 (3) The dismissal of a suit for non- prosecution does not amount to withdrawal of the suit. In such a case the provision of Order 23 Rule 1(3) of the Code is not applicable and as such the plaintiff is not precluded from filing a fresh suit on a new cause of action on fresh averments. Amir Hossain Khairati being dead his heirs Aftaf Hossain and others Vs. Abdul Aziz Bepari and others, 15 BLD (AD) 123. Order XXIII Rule 1 (2) Formal defect and withdrawal of a Suit The expression formal defect’ as used in rule 1 (2) of order 23 connotes defect of various kinds not affecting the merit of the suit and it is a defect of form which is prescribed by rules of procedure. Before granting permission to sue afresh on the same cause of action the court must be satisfied that the suit shall fail by reason of some formal defect. This formal defect should go at the very root of the suit. Monjurul Huq Vs. Monul Huq and others, 15 BLD (HCD) 107. Order XXIII Rule 1(2) It provides a discretion to the Court either to allow or reject an application for withdrawal of a suit with permission to sue afresh. But this discretion must be exercised judicially. Since the learned Assistant Judge construed the expression “formal defects” liberally and allowed withdrawal, it cannot be said that he exercised his discretion illegally. Md. Imran Hossain Momin Vs. Md. Amir Hossain 16 BLD (HCD) 624. Ref: 32 DLR 176;25 DLR 222; 41DLR (AD)156; 43 DLR (AD)201—Cited. Order XXIII, rules 1 & 2-A party should not be granted permission to withdraw the appeal as well as the suit unless it is clearly established that the suit as well as the appeal is bound to fail on a mere formal defect which could not be rectified by the plaintiff under normal ordinary circumstances and the interest of justice requires that such permission should be granted. Government of the People's Republic of Bangladesh vs Md Babor Ali Gazi (Civil), 73 DLR (AD) 3 Order XXIII, rule 1-The defect in the frame of the suit as pointed out in the application appears to us formal in framing the suit and because of such defect, the suit shall fail. Zahanara Begum vs Md Motiar Rahman (Civil) 71 DLR (AD) 325 Order 23, rule 1-It is the plaintiff who came before the Court to establish his right, with certain prayer and defendants only appeared in the suit, denying the assertion of plaint and prayed for dismissal of the suit. Trial Court dismissed the suit and appellate Court affirmed the same and thereby the right of plaintiffs was denied, but no right of the defendants was declared, thus the defendants are not at all acquired any vested right. The defendants will not suffer in any means, because, they shall not be vexed with any further litigation on the same cause of action. The High Court Division held that Plaintiffs are at liberty to bring any appropriate suit before the Court of law, if they are so advised and if the same is not barred by any law of the country in the meantime. And the judgment and decrees passed by both the Courts below in the present proceedings shall have no bearings in consideration of an appropriate suit. Accordingly, the plaintiff-petitioners are permitted to withdraw the suit without according further permission to sue a fresh, with a cost of Tk. 15000/- (fifteen thousands). The Rule is disposed of with above observation. Amir Hossain and others Vs. Md. Hanif and others (Civil) 19 ALR (HCD) 109-111 Code of Civil procedure [V of 1908] Order 23, rule 1-The provision of Order XXIII, rule 1 of the Code of Civil procedure does not authorize the Court to permit plaintiff to proceed with a fresh suit, with the same cause of action, after laps of a long period and the Court shall not pass any futile order, which bears no legal meaning, because the suit is otherwise barred by limitation. The language of the Order XXIII of the Code of Civil procedure, which clearly gives an unqualified right to plaintiff to withdraw his suit, without a further permission to sue a fresh. And in that situation the plaintiff is precluded from institution of any suit in respect of the same cause of action of the earlier suit, but is not barred under the existing law to bring any fresh suit, with fresh cause of action and with an appropriate prayer. Amir Hossain and others Vs Md. Hanif and others (Civil) 19 ALR (HCD) 109-111 Code of Civil Procedure [V of 1908] Order 23 Rule 1(1) The writ petitioner being an Assistant Teacher of a non-Government Secondary School, which is neither statutory body nor a local authority, whether petition was not maintainable". The Appellate Division held that since the decision challenged in the writ petition was of the Board of Secondary and Higher Secondary Education, the Appellate Division finds that the writ petition was maintainable. Moreover, it appears that no such ground of maintainability was urged before the High Court Division. With regard to the merit of the writ petition, the Appellate Division finds that the High Court Division dealt with the matter extensively in making the Rule Nisi absolute. Since no argument was made with regard to the merit of the case the Appellate Division does not propose to dwell on the matter. In the facts and circumstances discussed above, the Appellate Division does not find any merit in this appeal, which is accordingly dismissed. The President. Managing Committee, Bangshal Girls High School and another-Vs-Mrs. Kawser Parvin and others (Civil) 18 ALR (AD) 204-207 Order XXVI, Rule 1 Principles of law as to the scope of judicial review of a detention order and evaluation of the grounds of detention have been grossly violated causing error in the decision on merit and whether a restatement of the said principles has become necessary. (3) It seems to us that it has become more an academic exercise. The order of detention of the respondent was issued on 11.12.1990 and by the ultimate order of this court it has been declared to have been passed without lawful authority as far back as on 01.03.1998. The submission made on behalf of the respondent that the present exercise in the matter has become mere academic. Bangladesh represented vs. Mr. Mostafizur Rahman (Amirul Kabir Chowdhury J) (Civil) 5 ADC 12 File the suit seeking the relief that alleged deed of gift is false, fraudulent and fabricated.....(2) That the settled principle of law is that the concurrent findings of fact arriving at by the courts below. however erroneous, they may be, is binding upon the High court Division in its revisional jurisdiction and as such the judgment of the High Court Division sought to be appealed is not sustainable in law, that the courts below on appreciation of the evidence on record held that the story of permissive possession has not been proved by the defendants rather it was found by the courts below that the plain- tiff is in possession of the suit land on the strength of registered deed of purchase dated February 25.1947 and this being a finding of fact is binding upon the High Court Division. Shushil Chandra Nath vs. Shanjib Kanti Nath(Md. Ruhul Amin J) (Civil) 5 ADC 21 Writ petitions by way of certorari on...(2) Whether the writ petitioners were appointed in Phase-I of the Project pure- ly on temporary and contract basis upto the completion of the Phase-I or the writ-respondents i.e. the Government was under any legal obligation to absorb them in the phase-II of the Project. (b) whether the Government was free to amend the Project pro-forma enabling it to implement Phase-II of the Project by taking steps for direct appointment of personnel through open competition by inviting applications in the news papers affording opportunity to the writ-petitioners as well as others, (c) whether the impugned order causing publications of notification in the news papers inviting applications for appointment in various posts in Phase-II of the Project were illegal, (d) whether the Government in the Ministry of Agriculture was under any legal obligation to transfer the Project personnel including the writ petitioners to the revenue budget after completion of the Project. Government of Bangladesh vs. Jahangir Alam (Md Joynul Abedin j) (Civil) 5 ADC 29 The suit was field seeking a decree for permanent injunction in respect of the and described...(1) Only because the defendant has produced certain docu- ments and claimed title to the suit land cannot disentitle the plaintiffs to a decree for permanent injunction if the plaintiffs are successful in proving prima facie title and exclusive posses- sion, if the exclusive possession of the plaintiffs is established, suit for granting a decree for permanent injunction shall lie and a party not in possession may resort to the remedy available to him by law but that should not be a ground for dismissing a suit for permanent injunc- tion. Atiqullah alias Atik vs. Mohammad Safiquddin (Md. Ruhul Amin J)(civil) 5 ADC 36 Praying for permanent injunction con- tending, inter alia, that they are owners in possession of the suit land by way of inheritance as well as by purchase....(2) Chairman, Raisree (North) Union Parishad vs. Abdul Khaleque (Md. Tafazzul Islam J) (Civil) 5 ADC 40 Order 26, r. 1. Examination of a witness on commission allowing it discretionary with the Court-Ground of inability to attend court on account of sick- ness or infirmity should be properly considered by the court when such statements are made through sworn affidavit. [28 DLR (1976) 17] Order 26 rule 1 The Court is now free to accept the medical certificate from a registered practitioner as a evidence of the sickness or infirmity of the -person concerned; but in my opinion, it is still necessary for the Court to record its satisfac- tion as to the existence of the sickness or infirmity of the person concerned after considering the medical certificate and its further satisfaction that because of such sick- ness or infirmity the witness is unable to come to Court to depose. From the impugned order in the instant case it does not appear that the Learned Munsif after consideration of the medical certificate has satisfied himself as to the illeness and/or infirmity of the defendant and as to her inability to attend the Court because of such illness and/or infirmity.. [AIR 1993 Cal 296] Order 26 rule 1 "The Court has a discretion to grant or refuse a commission but the discretion has got to be exercised judi- cially. If the plaintiff insists on the attendance of his witness in Court and the witness apply for their examination on commission, the Court undoubtedly will have to take into consideration the grounds upon which the commission is applied for but at the same time it cannot lose sight of the prejudice that might be caused to the plaintiff by reason of such commission being issued. If sickness or infirmity is alleged, the character and gravity of that sickness or infirmity have got to be assessed and the risk consequent upon a refusal to issue a commission will have to be taken into consideration. At the same time the importance of having the witnesses present before the Court, the advantages that would follow from their examination and cross examination in the presence of the Court and the emergency and which might arise of having them confronted or identified should not be altogether lost sight of. If all the matters are duly considered and the order is passed then and then only can it be said that the order has been passed in the exercise of a judicial discretion". Panchkari Mitra v. Panchanan Saha reported in (1924) 39 Cal LJ 598: (AIR 1924 Cal 971) Order 26 rule 1 When an application for the examination on commission of a material witness residing within the jurisdiction of the Court is made, before a commission is issued the Court is under the obligation of considering and coming whether the witness is suffering, from any to a definite conclusion illness or if his so suffering, whether the nature of the illness would prevent the witness from attending Court or would make it risky to his life to do so especially when the issue of the commission is for the examination of a plaintiff or a defendant in the suit. [Sarala Sundari Dasi v. Surendra Narayan Roy reported in (1935) 39 Cal WN 595] Order XXVI Praying for a decree for declaration of title and recovery of khas possession in the suit land alleging his prior posses- sion and subsequent dispossession by the contesting defendants. Md. Nurul Alam Miah vs. Md. Idris Ali (Moham- mad Fazlul Karim J) (Civil) 6 ADC 605 Order XXVI, Rule 9- Commissions for local investigation- The purpose of local investigation under this provision is to ascertain the nature and feature and market value etc. of any property. Again, quite clearly this provision is not meant for ascertaining possession of property, which can only be done by taking evidence in the course of trial. We are of the opinion that the High Court Division was in error in making the Rule absolute. The appellate Court rightly rejected the application. The appeal is allowed, without however, any order as to costs. The impugned judgement and order of the High Court Division is set aside. ...A.K.M. Fazlul Haque =VS= Bazlur Rahman, [8 LM (AD) 1] Order XXVI, Rule 10 When the earlier report filed by the Advocate Commissioner was on record and the objection filed against the said report was pending, the impugned orders cancelling the appointment of the earlier Advocate Commissioner and appointing a new Advocate Coin- missioner are contrary to the provision of Order 26, Rule 10 C.P.C. Shamsul Islam and another Vs Arman Ali and others, 14 BLD(HD) 176. Order XXVI Rule 9 Local investigation A court is not bound to issue a commission. It is in the discretion of the Judge to grant or refuse local investigation. Matasim Ali Chowdhury Vs Md. Ismail, 21 BLD (HCD) 216. Order 26, Rule 10 of the Civil Procedure Code Praying for decree for a sum of Tk. 25,80,14,191.00 against the defendant appellants towards compensation on the averments that they obtained loan from Bangladesh Shilpa Bank to set up an industry for manufacturing electric bulbs. Janata Bank and others VS. National Electric Company Ltd. (Md. Tafazzul Islam J) (Civil) 4ADC 764 Order XXVI Rules 9 and 10 An order rejecting a prayer for local inspection should assign proper reasons, and should not be non-speaking order. Al-Haj Saiful Alam v. Abdul Salam and others, 22 BLD (HCD) 360. Order XXVI Rule 18 Notice—Parties to appear before Commissioner It is the duty of the Court to direct the parties to the suit to appear before the Commissioner in person or by their agents or lawyers at the time of local investigation. In the absence of notice by the Court, notice issued by the Commissioner to the parties may be deemed to be sufficient compliance. If no notice is served, on any of the parties to the suit to appear before the Commissioner at the time of local investigation, the result of such local investigation and the report cannot be accepted as evidence and the report is liable to be rejected. Mahatab All Vs Sree Kartick Chandra Karmakar and others, 18 BLD (HCD) 522. Ref: AIR. 1934 (Madras) 548; A.I.R. 1960 (Orissa)66; A.1.R. 1962 (Andhra Pradesh) 84: A.I.R. 1962 (Patna) 211; 1987 PU (Lahore) 591; A.I.R.1959 (Andhra Pradesh) 170; A.1.R. 1973 (All) 148; AIR. 1975 (Cal) 303; A.I.R. 1959 (Andhra Pradesh) 64: A.T.R. 1968 (Kerala) 28; A.1.R. 1970 (Delhi) 250; 43DLR(AD) 17; 20 DLR (SC) 221; 22DLR(SC) 177; --Cited. Order XXVI Family Courts Ordinance, 1985, Section-20 Although Section 20 of the Family Courts of Ordinance provides that the Code of Civil procedure “shall not apply to proceedings before the Family Courts except sections 10 and 11, this bar cannot be interpreted to be an absolute bar but it must be held to be a qualified and limited one. The provisions of C.P.C. shall not apply to the Family Courts where alternative provisions have been prescribed for the Family Courts in the Ordinance itself, since the Family Courts Ordinance does not prescribe any alternative provision in respect of examination of witnesses on commission, the provisions of Order 26 C.P.C. apply to the proceedings before the Family Courts. Md. Younus Miah Vs. Abida Sultana @ Chhandag, 14 BLD (HCD) 291. Order XXVI, Rule 9 Local Investigation Order 26 Rule 9 of the Code of Civil Procedure provides for holding local investigation on specified grounds when the court finds a local investigation necessary and proper for the purpose of elucidating any matter in dispute but the court has no power to delegate its authority to the commissioner for ascertaining facts which are required to be decided by him alone on taking evidence. Md. Belayet Hossain Vs. Shah Alam Parvez and others, 19 BLD (HCD) 359. Order XXIX Rule 1 Signing and verifications of pleadings Under the provisions of Order XXIX Rule 1 C.P.C. the Managing Director of a registered company has the legal authority to sign the plaint and pleadings whether or not he has been so authorised by the Articles of Association of the Company. In the present case the Board of Directors of the Plaintiff Company authorised its Managing Director to file the suit on behalf of the Company and by a subsequent resolution the Board of Directors of the Plaintiff-Company authorised Mr. M.R. Islam Azad to file the suit on behalf of the Company. So, the suit is found to have been filed by the authorised person. Doon Valley Rice Limited Vs. M. V. YUE YANG 16 BLD (HCD) 469. Ref: A.I.R. 1949 Allahabad 499;PLD 1968(Paragraph 4); PLD (SC) 684; Paragraph 305 of Haisbary’ s Law of England,4th Edition, Volume — I; Mitra’s Carriage of Goods by Sea, at Pages 167 — 168; Princes Royal Lr. (1870)3 ACE 41; 72 C.W.N. 635; 167 ER 269; The Norway 167ER 347; Pieve Superior, L.R. (1874) 5 P.C.482; -- Referred. Order 31, rule 1 and 2 In such view of the matter if the status quo order granted by this court is maintained the Islamic Foundation can not take any legal steps for its recovery and further in the normal course. The litigations initiated by the plaintiff peti- tioner in the form of filing the title suit can not be expected to be decided fi- nally within near future and as such bal- ance of convenience and in convenience for maintaining the order of statusquo in favour of the Islamic Foundation". Khurshid Alam Khan vs. Government (Md. Muzammel Hossain J) (Civil) 10 ADC 63 Order XXXIV Rules 2(1) and 7 Preliminary decree in Foreclosure Suit and Redemption Suit The preponderance of judicial decisions in the sub-continent is that whether it is a suit for foreclosure or for sale the Court has to pass a preliminary decree in terms of Rule 2(i) of Order XXXIV and that the Court has no option but to award interest pendente lite to the mortgagee. In a suit for redemption the principle is almost the same, because a preliminary decree therein has to be passed under Order XXXIV Rule 7 C.P.C. The High Court Division acted illegally in not holding that the plaintiff-appellant was entitled to interest pendente lite, i.e., from the date of institution of the suit till the passing of the decree. Sonali Bank Vs M/s. Beg and Beg Jute Incorporated Ltd. and others, 17 BLD (AD) 313. Order XXXIV Rule II Payment of interest pendente lite— Discretion of the Court. The Court is not obliged under Rule 11 of Order XXXIV CPC to award the contractual rate of interest while awarding interest pendente lite. The Rule gives the Court a discretion in the matter of fixing the rate of interest to be awarded pendente lite. Sonali Bank Vs MIs. Beg and Beg Jute Incorporated Ltd. and others, 17 BLD (AD) 313. Ref: A1R1940(FC)20; AIR 1942 (Patna) 102; AIR 1953 (Born) 445; AIR 1927(PC)I; A1R1958 (Rajasthan)145; AIR 1963 (guj) 253; A1R1957 (Cal) 140; AIR 1970 (Madhya Pradesh) 34; AIR 1953(Bom) 445; AIR 1958 (Rajasthan) 145;—Cited. Section 34 Order 34, Rule 2, 4 and 11 Thus appears that the preponderance of judicial decisions in the sub continent is that whether it is suit for foreclosure or for sale the Court has to pass a preliminary decree in terms of Rule 2(1) of Order 34 and that the court has no option but to award interest pendente lite to the mortgage. In a suit for redemption the principle is not very different because the preliminary decree therein has to be passed under Order 34 Rule 7 C.P.C which is substantially in the same terms as in Rule 2. Sonali Bank vs M/S Beg and Beg Jute Incorporated Ltd. (Mustafa Kamal J)(Civil) 2ADC 286 Order XXXIV Rules (4), (5) and (6) In a suit relating to mortgage of immovable property by the Bank, the principal claim’ of the plaintiff is directed against the real borrower and not against the guarantor of the loanee. In such a case the real relief of the plaintiff Bank lies against the property of the principal debtor. For satisfaction of the decretal dues, the court is bound to sell the mortgaged property first and only in the event of non-satisfaction of the decretal dues, the court may fall upon the Other property of the other defendants. Sheikh Abu Sayyid Vs. Sonali Bank and others, 15 BLD (AD) 161. Order XLI The High Court Division held that it is a settled principle of law that the appel. late Court below being final Court of fact will have to discuss and reassess the evidence of record independently while either reversing of affirming the finding of the trial Court. Chitta Ranjan Roy vs. Dhirendra Nath Roy (Mohammad Fa- zlul Karim J) (Civil) 6 ADC The Code of Civil Procedure, 1908 During the pendency of the suit, the plaintiffs-respondents filed an application under Order-XL Rule 1 of the Code of Civil Procedure for appointment of receiver in respect of the suit land alleging that the plaintiffs-respondents are entitled to 91 bighas of land and, on the other hand, the defendants-petitioners and others are entitled to 182 bighas of land. Most. Umme Shaheda Akhter Rina vs. Ayub Ali (Syed Mahmud Hossain J) (Civil) 9 ADC 656 Order XL, Rule I- Appoint a receiver- Receiver should be appointed in a suit for partition with the consent of the parties, especially where the family property consists of land- The trial Court appointed receiver without assigning proper reason as contemplated under Order XL Rule I of the Code of Civil Procedure. On the other hand the appellate Court taking into consideration all aspects of the case reversed the order of learned Joint District Judge appointing receiver. The High Court Division, however, concurred with the cryptic and slipshod order passed by the trial Court appointing receiver in respect of the suit land. In the present case, the plaintiffs could have filed an application praying for restraining the defendants by an order of temporary injunction from selling the suit land without prior permission of the Court but they failed to do so. In a suit for partition not merely the interest of the plaintiffs but also the interest of all the parties to the suit need be protected. The power to appoint a receiver as conferred by Order 40, rule 1 of the Code of Civil Procedure, therefore, should, therefore, be sparingly used. The provisions for the appointment of a receiver is to be considered as one of the harshest remedies for the enforcement of rights to property. The present suit for partition has been pending before the trial Court. Therefore, we are of the view that instead of dragging the case in this Division, it would be proper to dispose of both the leave petitions to enable the trial Court to dispose of the suit as expeditiously as possible. Both the petitions are disposed of and the impugned judgment and order passed by High Court Division is set aside. The plaintiffs will, however, be at liberty to file an application praying for restraining the defendants by an order of temporary injunction from selling any portion of the suit land without prior permission of the trial Court, if so advised. ... Umme Shaheda Akhter Rina(Most.) =VS= Ayub Ali, [9 LM (AD) 538] Order XLI Rule 5 Stay Mere filing of an appeal does not by itself give any automatic right to the appellant to get an order of stay of the operation of the impugned judgment or order or of the proceedings in question. It is purely discretionary with the appellate Court to grant such a relief on for a sufficient cause. If the operation of the order of temporary injunction is stayed till the disposal of the appeal, it simply means that there is not only no order of injunction in existence but also it virtually gives the appellant the final relief of the appeal pending adjudication. In the absence of any compelling reasons and that too for preventing an apparent injustice, the stay of operation of the impugned order. of temporary injunction pending decision in the appeal is not contemplated in law. A. Hamid Shah alias Hamed Shah Vs Basheruddin Shah and others, 19 BLD (HCD) 21. Order XLI Rule 12 On plain reading of provisions of rule 12, it becomes clear that the appellate Court is required to fix a day for hearing the appeal unless it dismisses the appeal and in fixing such day, sufficient time should be given to the respondent to appear and answer the appeal’ on such day. The phrase ‘to appear and answer the appeal’ admits of one simple construct on, requiring the respondents to appear o the day fixed for hearing of the appeal under rule 16(2) and answer the points raised by the appellants in support of their appeal. So, rule 12 does not, in any way, empower and/or authorise the appellate Court either to allow a respondent to file a written statement for the first time in appeal or to accept such written statement. Narayan Chandra Saha and another Vs Jatindra Chandra Saha and others, 19 BLD (HCD) 614. Order XLI, Rule 17- An appeal may not be disposed of on merit in the absence of the appellant- Where the appellate Court disposed of the appeal on merit in the absence of the appellant or his learned Advocate, this Division remanded the appeal to the appellate Court for fresh hearing on merit. In view of the above we find no alternative but to remand the appeal to the appellate Court for fresh hearing....Military Family Rehabilitation Officer, BDVS= Azad Ali Chowdhury, [10 LM (AD) 286] Order XLI Rule 17 It has long been held that under Order 41 Rule 17 C.P.C the use of the word ‘may’ does not mean that it is open to the appellate court to dispose of the appeal on merits in the absence of the appellant. In the instant case, the High Court Division heard the learned Advocate for the plaintiff, respondents only and did not know or could not know what possible could have been arguments of the defendant-appellant against the impugned judgment and decree of the trial court. The High Court Division ought to have either dismissed the appeal for default or ought to have adjourned it to some other date as it was a part-heard appeal or could have passed. other Orders but it was certainly not authorised to consider the appeal in the absence of the appellant and decide it on merits. Government of Bangladesh, represented by the Deputy Commissioner, Dhaka and another Vs Waqer Ahmed and others, 19 BLD (AD) 230. Ref: AIR 1929 Cal 475—Cited. Order XLI Rule 19- It should be kept in mind that re-admission of appeal under Rule 19 is a discretionary power of the court and the settled principle of law is discretion is to be exercised in a judicious manner having regard to the facts and circumstances of the case. Bangladesh VS= Abdul Barek Bepari, [3 LM (AD) 93] Order XLI Rule 19 & Section 151- To invoke the amended Rule 19A, the application for such re-admission is to be filed within 30 days of the date of dismissal of the appeal for default and the application is to be supported by an affidavit. If these two requirements, as provided in the proviso, are met only then Rule 19A could be applied to avoid delay and expedite disposal providing the court to directly re- admit the appeal without requiring to adduce evidence as required under Rule 19. Bangladesh =VS= Abdul Barek Bepari, [3 LM (AD) 93] Order XLI, Rule 19A- Hearing of appeal from both the sides on merit without pronouncing judgment cannot dismiss the appeal for default- The law has provided the provision that judgment shall have to be pronounced in open Court at once or any other day and there is no room to dismiss the appeal for default. Therefore, the order of dismissal recorded while appeal was fixed for judgment by the learned Additional District Judge, 5th Court, Dhaka and judgment of the High Court affirming the same by the single Judge caused serious miscarriage of justice It is clearly visible that the single Judge of the High Court Division failed to appreciate the provision for direct re- admission as contemplated in Rule 19A, order XLI of the Code; rather misconstrued the provision of law. We are, therefore, of the view that a Court of appeal on concluding the hearing of appeal from both the sides on merit without pronouncing judgment cannot dismiss the appeal for default. Accordingly, the appeal is allowed. ... Mahmuda Khatun =VS= Hamida Begum, [8 LM (AD) 74] Order XLI, Rule 21- Dismissed the appeal for default- The impugned judgement and order of the High Court Division indicates non-consideration of all the attending facts and circumstances. The learned Advocate for the petitioners before us has pointed out that there was indeed another learned Advocate who was engaged at the appeal stage namely Mr. Foyzul Huq Biswas. Hence, it cannot be said that the appellants did not have any representative to deal with their appeal. We, therefore, find that the High Court Division was not correct in setting aside the order of the learned Additional District Judge, Bhola in Miscellaneous Case (Sani) No.1 of 2009 arising out of Title Appeal No.74 of 1993. ...Abdul Mannan Howlader =VS= Joinal Abedin, [10 LM (AD) 298] Order 41, Rule 21 Finally the High Court Division observed that the petitioner in the Civil Rule No.80(5) of 1998 was a lessee of the property in suit from year to year and that no material was placed on record that he still is a lessee, nor any statement has been made to the effect that lease is subsisting. In the back- ground of the said fact the High Court Division held that the petitioner has no locus standi to file the application seeking re-hearing of the Second Appeal. The High Court Division also noticed that defendant No.8 did not appear in the Second Appeal nor he has challenged the judgment and decree passed in the Second Appeal. In the afore state of the matter the High Court Division, discharged the Rule. Noor Mohammad Biswas vs. Surendra Nath Mondal (Md. Ruhul Amin J) (Civil) 5ADC 578 Order 41, Rule 21 The High Court Division made the Rule absolute on the finding that the opposite party failed to make out a case that the heba was not acted upon. Md. Syed Badrud Doza vs. Tawfiq Hasan and another (Md. Ruhul Amin J) (Civil) 4 ADC 667 Order XLI, Rule 23- Remand- The order of remand made by the High Court Division is not covered by Order 41 Rule 23 of the Code of Civil Procedure. We do not approve of remanding a suit on such flimsy grounds. The appeal is allowed and the impugned judgment delivered by the High Court Division is set aside. The matter is remanded to the High Court Division and the Division Bench presided by Farid Ahmed, J. shall dispose of the appeal on merit within 3 (three) months from the date of receipt of a copy of the judgment. ..... Lutfur Rahman -VS- Abdul Malek Gazi, [4 LM (AD) 268] Order 41, Rule 23 High Court's power to remand to the courts below is not limited to cases covered by order 41 rule 23 of the Code of Civil Procedure. A remand may be made even in exercise of inherent jurisdiction under Section 151 of the Code of Civil procedure. But remand should not be made to cure any defect or filling up any lacuna in the standers of the parties. Superintendent Engineer, Jangalia, Comilla vs MIs. Madhumati P.D.B. Cinema Lid Comilla (Civil) 1 ADC 131 Order 41 rule 25 There was an agreement between him and the defendant for transfer of defendant's property for TK. 14,00,000.00 out of which the defendant received TK.5,00,000.00 as earnest money on condition that the defendant would execute and register the sale deed within six months on receipt of the balance consideration from the plaintiff; Subsequently, on 20.10.1997 defendant received another sum of TK.20,000.00; that the defendant did not take step for executing and registering the sale deed in favour of the plaintiff and as such, a legal notice was issued to the defendant which was replied to; agreement was not denied; that the defendant gave possession of the property in schedule to the plaintiff at the time of execution of the agreement and the plaintiff spent TK.2,00,000.00 for making improvement; that the plaintiff is always ready and willing to pay balance consideration as stipulated and by her reply to the legal notice, the defendant refused to execute and register the sale deed, whereupon the plaintiff was constrained to institute the suit. Salma Parveen vs. Md. Amir Hossain (Mohammad Fazlul Karim J) (Civil) 8 ADC 293 Order XLI, Rule 27- Praying for declaration of title Order XLI Rule 27 of the Code of Civil Procedure provides: "27 (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined." ..... Harunur Rashid & others =VS= Mosammat Yarun Nissa & others, [1 LM (AD) 385] Order XLI Rule 27 It further appears that respective C.S. khatians as well as S.A. khatians were not produced in the Courts below and that the defendants produced 15 regis- tered deeds and series of rent receipts in supported of their claim but the Courts below did not consider those docu- ments. The High Court Division remanded the suit for hearing afresh giving the parties opportunity to pro- duce of those relevant khatians. It is well settled that the appellate Court has the authority to consider the case after recording additional evidence if those are found to be required for proper adjudication of the matter in dispute upon fulfilling the provisions provided in Order LXI Rule 27 of the Code of Civil Procedure. .......(7) Considering the aforesaid facts and cir- cumstances, we are of the view that instead of sending back the case to the trial Court the same may be sent to the appellate Court on remand. Accordingly, the case is remitted to the Appellate Court and the appellate Court is directed to consider the appli- cation for additional evidence, if the same is so filed, following the require- ments of the provisions of Order XLI Rule 27 of the Court of Civil Procedure. ......(8) Md. Abdus Salam vs. Saleha Khatun (Hasan Foez Siddique CJ) (Civil) 20 ADC 98 Order XLI rule 27 Filed the instant suit for partition claim- ing a saham for 4.03 acres out of the suit-land. The suit was contested by the defendant Nos. 1, 4, 5 and 2, 10 to 13 by filing separate set of written statements. Abdur Razzak vs. Md. Habejuddin (A.B.M. Khairul Haque J) (Civil) 7 ADC 336 Order 41, Rule 27(1) It is clear that this power can be exercised only where the court requires further evidence for one of the two cause specified in the rule. None of these requisites was fulfilled in this case. The permit the defendants to adduce additional evidence at the appellate stage would only amount to giving them an opportunity to fish out evidence in order to prove their case and make up the lacuna which, at the present moment, exists. In our opinion the lower appellate court did not commit any error of law in rejecting the prayer for addition- al evidence in the facts and circum- stances of the case. It was, therefore, not proper for High Court Division to interfere with the concurrent decision of the two courts below and send back the case to the lower appellate court for disposal of the appeal on merit...........(9) Mohammad Ali Akhand vs Bahatan Nessa Bewa (Bimalendu Bikash Roy Choudhury J) (Civil) 2ADC 195 Order XLI, rule 31- The Appellate Division found that the High Court Division did not say anything on the merit of the case. Appellate Division sent back the case to the High Court Division for hearing afresh. The Appellate Division found that it appears that both the Courts below particularly the Appellate Court discussed the evidence on record and gave its finding on each and every issue. Therefore, we failed to understand what the High Court Division wanted to mean by referring to Order XLI, rule 31 of the Code. Be that as it may, since the High Court Division did not say anything on the merit of the case and sent the case back to the Appellate Court. Appellate Division finds no other alternative but to send back the revision to the High Court Division for hearing afresh and dispose of the same on merit in accordance with law on the evidence on record...... Rahima Begum & others =VS= Lal Mia & others, [1 LM (AD) 162] Order XLI, Rule 31- It also appears the appellate Court failed to appreciate that the even though the stolen trees were recovered from the possession of Ahamedullah, the purchaser of Lot No.10, no case was filed against Ahamedullah and further no cases were also filed against the purchasers of the contiguous plots. We are of the view that the High Court Division on proper consideration of the evidence and the materials on record made the Rule absolute. The learned counsel for the appellant also could not point out any illegality or infirmity in the decision of the High Court Division so as to call for any interference. Cox's Bazar Divisional Forest Officer =VS= Abdur Rahim Chowdhury, [5 LM (AD) 379] order XLI Rule 31 The appellate Court below without adverting to the points upon which the trial court dismissed the suit reversed the same which is certainly not a prop- er reversal of judgment and decree on the part of the appellate Court. It has arrived at a decision absolutely in a slipshod and cryptic manner. This is not at all a reversal in terms of Order XLI Rule 31 of the Code of Civil Procedure. ..(13) The object of Rule is to ensure that the appellate Court does not act mechani- cally and that it comes to the decision upon independent consideration of the materials on record of course in keep- ing with the Rule. .....(16) Most. Shahera Khatoon vs. Hoshne-ara Banu (Md. Ashfaqul Islam J) (Civil) 20 ADC 94 Order XLI, rule 31 The plaintiffs' claim is that the land de- scribed in the first schedule land along with other lands measuring 69 acre originally belonged to Abdur Rahim. By a registered deed dated 22.03.1972, the defendant No.1 Sayedullah and his brother Saif Ullah purchased the said land which was jointly possessed by them. On 09.11.1985 the land was partitioned and as a result each brother got 3412 acre of land. On 10.11.1985 Saif Ullah executed a bainapatra in favour of the plaintiffs in respect of . 1534 acre of land and by four registered deeds dated 14.11.1985, 16.11.1985 and 07.01.1986 transferred the land and delivered possession thereof. Md. Masuk Miah vs. Md. Foyzur Rahman (Muhammad Imman Ali J) (Civil) 9 ADC 242 Code of Civil Procedure [V of 1908] Order 41 rule 31-The appellate Court being final Court of fact will have to discuss and re-assess the evidence on record independently while reversing the findings of the trial Court. The High Court Division held that the trial Court by well reason judgment found the title of the plaintiff in the suit land and found the possession of the plaintiff and subsequent dispossession but the appellate Court without reversing the finding of the trial Court regarding title and possession by short finding of his own reversed the elaborate findings of the trial Court without any reasoning which is contrary to order 41 rule 31 of the Code of Civil Procedure. The appellate Court being final Court of fact will have to discuss and re-assess the evidence on record independently while reversing the findings of the trial Court. But in the instant case the appellate Court in his judgment referred the argument of the learned lawyer of both the parties extensively but his finding regarding the acceptance or disagreeing with the findings of the learned advocate are very short without having elaboration and as such the finding of the appellate Court is not supportable. Hazi Moulul Hussain and others -Vs- Hazi Hasib Ullah and others (Civil) 15 ALR (HCD) 257-261 Code of Civil Procedure [V of 1908] Order 41 Rule 31 and Order 20 Rule 5 Whether the High Court Division committed a serious error in finding that the suit itself is maintainable without controverting the concurrent findings of the Courts below on the point of maintainability by giving any cogent reason. The learned Counsel further submitted that both the Subordinate Judge as well as the Assistant Judge on proper consideration of evidence and materials on record exhaustively on all material issues dismissed the suit in compliance with the provision enunciated in Order 41 Rule 31 and Order 20 Rule 5 of the Code of Civil Procedure. The learned Counsel lastly submitted that the findings of the High Court Division itself is ambiguous as in one hand it has directed the trial Court to write down a fresh judgment on the basis of the materials on record which he found sufficient and on the other hand made room for either parties to produce further evidence if it considers necessary and the same will definitely prolong the litigation among the parties for decades together inasmuch as the order of remand is designed to give a chance to fill in the lacuna in the plaint case. Dhirendra Nath Mondal and others. -Vs- Narayan Chandra Mondal and others. (Civil) 17 ALR (AD) 61-65 Code of Civil Procedure [V of 1908] Order 41 Rules 31 and 33 read with Evidence Act [1 of 1872] Section 101-103-The High Court Division observed that the courts below omitted to discuss any evidence, oral or documentary, in arriving at their respective decisions and they utterly failed to record any minimum findings on the prime question of the plaintiffs possession in and dispossession from the suit land. More so, the trial court illegally shifted the entire burden of proof solely on the plaintiff in flagrant violation of the fairly settled rules of evidence as embodied in Section 101-103 of the Evidence Act. The High Court Division held that although the defendants claimed title to the suit land as the successive heir of Dasharat Rudra Paul, it appears from Ext. 4 that Ram Kumar is the son of Gangaram Rudra Paul and accordingly, the father-son relationship between Dasharat and Ram Kumar is not established and no cogent evidence having been led from the defendants' side to contradict the said Ext. 4, their defence falls apart and as such their claim of title to the suit land by inheritance from Dasharat Rudra Paul seems to be false. Moreover, the oral evidence supports the plaintiff's case that his maternal grandmother Nani Bala and mother Binoda Sundari Paul inducted the defendants' paternal grandmother Basant Kumari Paul in the suit land as a mere licensee or permissive possessor and hence, they cannot set up any plea of title against the plaintiff, rather liable to surrender vacant possession of the suit land in favour of the plaintiff. Parimal Chandra Paul Vs. Chandan Chandra Paul and others (Civil) 15 ALR (HCD) 152-158 Fact judicially noticeable need not be proved Fresh Suit against the decision of the Artha Rin Adalat 14 BLC 204: Syeda Bibi & others Vs. Helaluddin alias Mansur Ali & others: Order 41 Rule 31 of the Code of Civil Procedure read with Section 28 of the Limitation Act, 1908 read with Section 56 of the Evidence Act, 1872: The learned Subordinate Judge, Nawabganj ought to have considered the facts and circumstances of the case as well as section 56 of the Evidence Act wherein it has been laid down that fact judicially noticeable need not be proved and no fact of which the Court will take judicial notice need be proved. The learned Subordinate Judge, Nawabganj ought to have discussed and considered the material facts of the case that the defendant has been in possession of the suit land more than 60 years ago without any disturbance and the RS Khatian also prepared in the name of the defendant which creates a claim of right of adverse possession. (Para- 12, Mr. Justice SAKM Dabirush-Shan). Ref: 36 DLR(AD)261, 47 DLR(AD)162, 49 DLR(AD)61, 1997 BLD(AD)58-2 BLC(AD)100. Order 41 Rule 33 Respondent has submitted regarding the immunity of the respondent to be used in our Courts, for which the suit is not maintainable. The question of immunity is a mixed questions of law and fact and the material has to be produced by way of averments in the written statement and thereafter the materials are required to be considered in the light of the evidence in the suit and a decision should be arrived at accordingly. Ismet Zerin Khan vs The World Bank (Mohammad Fazlul Karim J) Civil 117 Order XLI, Rule 31 The appellate court whether reversing or affirming the decision of the trial court must independently consider the evidence on record. But in the case of affirming the findings of the trial court, the narration of the entire evidence and reiteration of the reasons given by the trial court are not essential. In such a case expressions of general agreement with those of the trial court are generally considered sufficient. But in the case of a reversal of the judgment, the consideration of the evidence, of necessity, has to be thorough and more elaborate. Rustam Ali Dhakua Vs. Abdur Rahman, 14 BLD (AD) 229. Ref: (1947)1 All.E.R.582, A.I.R.1967 (SC) 1124. Order 41 Rule 31 of the CPC Against the plaintiff is illegal, collusive and without any basis and jurisdiction and the plaintiff is not liable for the stolen trees on the averments that he auction purchased the forest trees of certain area. Any allegation that the plaintiff himself committed the theft or in what way or manner the plaintiff is connected with the alleged theft and moreover the appellate court has not reverted the find- ing of the trial court as required under Order 41 Rule 31 of the C.P.C. The High Court Division further held that because of non reading and misreading of the evidence on record the judgment of the appellate court suffers from illegality and the learned Assistant Attorney General also failed to convince the Court that the fine can be legally imposed upon the plaintiff in terms of the agreement of lease. It also appears the appellate Court failed to appreciate that the even though the stolen trees were recovered from the possession of Ahmedullah, the purchaser of Lot No. 10. no case was filed against Ahmeduullah and further no cases were also filed against the purchasers of the contiguous plots. The Divisional Forest Officer Cox's Bazar vs. Abdur Rahim Chowdhury and others (Md. Tafazzul Islam J) (Civil) 4ADC 292 Order XLI Rule 21 No useful purpose will be served if the rehearing application is allowed and the appeal be re-heard and no different view other than the views taken in allowing the appeal. Md Shamsul Huda and another Vs Abdul Khaleque, 20 BLD (HCD) 482. Order XLI Rule 19 Waqf Ordinance, 1962, Section—43 From a consideration of the provisions of the Code as well as section 43 of the Waqf Ordinance it appears that as the District Judge as contemplated under section 43 of the Waqf Ordinance is not a persona designata but a Court and as it is a Court of civil nature, the provisions of the Code of Civil Procedure is very much attracted in the instant case and accordingly the provisions of Order 41 Rule 19 of the Code is available of the respondents. Aminul Haque Shah Chowdhury alias Aminul Shah Chowdhury Vs Abdul Wahab Shah Chowdhury and others, 19 BLD (AD) 267. Ref: 43 DLR (AD) 128 —Not applicable. Order XLI rule 23 Remanding a case to the trial Court for fresh decision in the suit, after making necessary amendment of the plaint, and allowing the parties to adduce fresh evidence to fill in a lacuna .of the pleadings of the parties, is not the intent and object of an order of remand under order 41 rule 23. Akitullah and others v. Zafala Begum and others, 22 BLD (AD) 105. Ref: Dr. Razia Khatun v. Bhanu Guha and others 1986 BLD(AD)135. Order XLI Rule 27 Suit remanded to the Appellate Court to consider Ext. A for enabling the plaintiff to admit they said document in the suit as additional evidence under Order 41 Rule 27 of CPC, The provision of remand should not be exercised to cure any defect or filling up any lacuna in the pleadings of the parties but in order to decide the material issues in the suit, order of remand is imperative. Superintendent Engineer (Distribution), Power Development Board, . Jangalia, Comilla and others. v. MIs Madhumati Cinema ltd, Comilla & ors, 22 BLD (AD) 242. Ref: Ghaznavi Vs. The Allahabad Bank Ltd. AIR 1917 Calcutta 44; Surinder Kumar and others Vs. Gian Chand and others, AIR 1957 SC 875. Order XLI Rule 27(1) Order 41 rule 27(1) of the Code empowers the appellate Court to admit additional evidence only where the Court requires further evidence for one of the two causes specified in the rule. In the absence of any such cause the appellant cannot be permitted to adduce additional evidence at the appellate stage as it would only amount to giving him an opportunity to fish out new evidence for improving his case by filling up the lacuna therein. Mohammad Ali Akhand Vs. Bahatan Nessa Bewa and others, 18 BLD (AD) 50. Order XLI, Rule 33- When the appellate Court finds inconsistent, contradictory or unworkable order it is in that case alone the appellate Court would exercise its power Order 41 Rule 33 of the Code of Civil Procedure and not otherwise. We are of the view that the plaintiff without filing a cross-objection and attacking the decree of the trial Court by taking specific ground is not entitled to get the relief of setting aside the decree under Order 41 rule 33 of the Code of Civil Procedure. ...Alimuzzaman (Reza) (Md.) =VS= Masudar Rahman(Md.) @ Babul, [8 LM (AD) 164] Order XLI Rule 33 Power of the appellate Court The plaintiff filed the suit for declaration of her title in the suit property and for recovery of possession therein with a further prayer for declaring the disputed kabala as forged and void. The trial Court decreed the suit and the appellate Court affirmed the decree. But the learned courts below/passed the decree without formally declaring the disputed kabala as forged and fabricated. The High Court Division had recourse to the provision of Order XLI Rule 33of the Code and removed the accidental mistake and declared the disputed Kabala void and cancelled. Md. Azimuddin Pramanik alias Azimuddin Pramanik and others Vs Jayeda Bibi and another, 17 BLD (HCD) 466. Order XLI Rule 5(1) Stay by appellate court Under Order XLI Rule 5(1) of the Code of Civil Procedure the appellate Court has power to pass an order of stay of the impugned order or judgment in an appropriate case without hearing the other party at the time of admission of the appeal. Md. Reza Vs. Executive Engineer, Facilities Department, Noakhali and others, 18 BLD (HCD) 272. Ref: 31DLR(AD)319; 35DLR25; AIR 1933 (Born) 118; AIR 1920 (Pat)567—Cited. Order XLI Rules 23 and 24 Remand of a case by the appellate Court Where evidence on record is sufficient, the appellate Court should determine the appeal finally. When the defendant did not contest the suit and did not adduce any evidence in the trial Court, though he filed written statement, there is no scope for sending back the case on remand to the trial Court for giving an opportunity to the indolent appellant to prove his case. Where the evidence on record is sufficient for disposal of the appeal on merit, the appellate Court is required under Order XLI Rule 24 of the Code to finally decide the appeal itself. It is the settled principle of law that an order of remand cannot be granted as ‘a matter of course just on the seeking of party. Md. Fashuddin Mondal Vs. Khejmatu1lah, 16 BLD (HCD) 393. Ref: 1990 BCR(AD)63 — Cited. Order XLI Rule 31 Contents of Judgment by the appellate Court The trial Court while disposing of the suit framed as many 8 issues and answered all these issues with reference to evidence. The appellate Court being the final Court of fact failed to come to his own independent findings on those issues on the basis of the evidence on record and thereby committed an error of law in not complying with the mandatory provision of Order XLI Rule 31 C.P.C. Amirunnessa and others Vs Abdul Mannan Howlader and others, 17 BLD (HCD) 251. Order XLI Rules 23 and 24 When the evidence on record is sufficient to enable the appellate Court to decide the appeal on merit there is no justification in sending back the case on remand to the trial Court for a fresh decision on the basis of the evidence already on record. Under such circumstances the order of remand tantamounts to shirking of responsibility by the Court of appeal below. Mustafa Kamal Bhuiyan and others Vs Musammat Lutfunnahar Begum and 67 others, 17 BLD (HCD) 311. Ref: 21CWN 877 (FB); 6 DLKR(FC) 33; 17 DLR(SC) 392; 1980 BSCR 457; 6BLD (Ad) 156; 6 BLD(AD) 135; 43 DLR(AD) 125;—Cited. Order XLI Rule 31 The object of Rule 31 of Order 41 C.P.C. is, to see that the Appellate Court acts judicially and considers the case in its entirity with the consciousness of relevant points which arise for adjudication before him. Law does not authorise him to act callously or mechanically. Judgment of the appellate court must be adequate and satisfactory and it must contain findings of his own on all questions involved in the appeal with reference to the evidence on record. Dr. Ibrahim Hossain Vs. Mosammat Abeda Khatun and ors, 14 BLD (HCD) 346. Order XLI Rule 31 Judgment of reversal In a suit for specific performance of contract the primary question before the Court is whether the plaintiff has been able to prove the genuineness of the agreement by producing cogent, reliable and independent evidence. The material findings of the trial Court that the agreements were genuine and consideration passed pursuant thereto were not reversed by the lower appellate Court as the final Court of fact while reversing the judgment of the trial Court and consequently it is to be held that it is not a proper judgment of reversal. Jahanara Begum Vs Md. Aminul Islam Chowdhury and others, 17 BLD (AD) 195. Order XL Rule 1 Under the provisions of Order XL Rule I C.P.C. the Court may appoint a receiver of any property when it appears to it to be just and convenient for the protection of the property or prevention of any possible injury to it. 1t is essentially a discretion of the Court but such discretion must be exercised judiciously according to sound judicial principles. The applicant must show a prima facie case and good chance of his success in the suit. No order for appointment of receiver should be passed to deprive a defacto possessor of the property as sub rule (2) of Rule I of Order XL C.P.C. does not authorise the Court to remove from the possession of property any person to whom any property to the suit has not a present right so to remove. Kamiruddin and others Vs Md. Mokshed Au Biswas and others, 16 BLD (AD) 91. Order XLI Rule 24 and Order 6 Rule 17 When the trial Court as well as the appellate Court found that the plaintiff had failed to prove her title in the suit land on the basis of the alleged settlement and she having not made any case of adverse possession in the plaint and having not led any evidence to establish it, the High Court Division was wrong in remanding the case to the trial court for giving an opportunity to the plaintiff to amend the plaint for making out a new case of adverse possession by adducing fresh evidence. Golam Rahman Vs. Hazera Khatun, 16 BLD (AD) 166. Order XLI Rule 5 read with order XLIII Rule 2 Execution of a decree or an order shall not be stayed automatically by reason only of an appeal having been preferred from any decree or order and the same having been admitted, the appellate Court can stay in an appropriate case. Zakaria Hossain Chowdhury Vs The City Bank Limited and others, 21 BLD (HCD) 170. Ref: Shah Wali Vs. Ghulam Din alias Gaman and Muhanmiad, 19DLR SC 143; Bangladesh and another Vs. Md. Salimullah and others 35 DLR—Cited Order XLI Rule 31 While reversing the Judgment of the trial Court the appellate court is required to advert to the material findings made by the trial court on consideration of the evidence on record. When the findings of the appellate court on material facts are not supported by the evidence on record, the judgment of the appellate court cannot be sustained. Abu Taher and others Vs. Sharifa Be- gum and others, 15 BLD (AD) 91. Order XLI Rule 31 Contents of a judgment The judgment of the appellate court must contain: (a) The points for determination (b) The decision thereon (c) The reasons for the decision and (d) Where the decree appealed from is reversed or varied, the relief to which the Appellant is entitled. The object of Rule 31 of Order 41 C.P.C, is to see that the appellate Court does not act mechanically in concurring with the findings of the trial court. The appellate Court is required to independently discuss and consider the material evidence on record for coming to independent conclusions on all important points and issues. It is all the more necessary when the appellate Court reverses the judgment of the trial court. In case of a reversal, the appellate court must expresses opinion on all points on which the trial court based its conclusions. Nazir Ahmed Saial and others Vs. Abdul Kader Mallik and others, 15 BLD (HCD) 463 Ref: Anwar Hossain and others Vs. Abul Hossain Mollah and others, 44 DLR (HCD) 79; Dr. Ibrahim Hossain Vs. Mosammat Abeda Khatun, 14 BLD (1994) page 346- Cited. Order XLI Rule 31 It requires that the appellate Court whether reversing or affirming the -judgment of the trial court must independently discuss and consider the material evidence on record. In a case of affirming the findings of the trial court, the narration of the entire evidence and reiteration of the reasons assigned by the trial Court are not essential but in the case of a reversal, the consideration of the evidence must be thorough and elaborate. Kalyan Krishna Goswami Vs. Madhya. para High School and another, 15 BLD (HCD) 509. Order XLI, Rule 21 It enjoins a duty upon the Appellate Court to discuss and consider the evidence led by the contending parties; on all material points and issues and to give his reasons and decision thereon. Mere saying, “there was nothing wrong with the finding of the trial Court’ does not satisfy the requirement of law. The Judgment of the Appellate Court must indicate that the learned judge has applied his mind to all salient facts and points for determination. Dewan Mohammad Safar Ali and others Vs. The People’s Republic of Bangladesh, 14 BLD (HCD) 92. Order XLI, Rule 31 Judgment of the appellate court It must contain the points for determination, the decision thereon and the reasons for the decision. While reversing the decision of the trial court, the appellate court is required to reverse the material findings of the trial court with reference to the evidence on record. Abrupt findings without any reference to the evidence on record are not sustainable in law Shashikanta Roy Vs. Khitish Chandra Roy and others, 15 BLD (HCD) 96. Order XLI Rule 27 Production of additional evidence in the appellate Court Additional evidence may be allowed at the appellate stage only if the court finds it necessary for the pronouncement of a proper judgment or for any other substantial cause. At any rate, it must be the necessity of the court and not of a party. The provision of Order 41 Rule 27 does not enjoin the Appellate Court to give reasons for refusing additional evidence. On the contrary, the Appellate Court has to state reasons for allowing additional evidence. Md. Serajul Islam Vs. Sree Binoy Bhusan Chakraborty and others, 15 BLD (HCD) 241. Order XLI Rules 27 and 29 Additional Evidence Under Order 41 Rule 27 C.P.C. the appellate court is competent to take additional evidence, even suo motu if after going through the evidence it finds that additional evidence is necessary for writing out a proper judgment. But an application for adducing additional evidence cannot be entertained before the appellate court enters into evidence and finds some inherent lacuna or deficiency in the evidence on record standing in the way of a proper judgment. But at any rate, the need for additional evidence must be felt by the court itself. This discretionary power requires to be exercised judicially. Rule 29 of Order 41 provides that the appellate court must specify and record the point or points to which additional evidence is to be confined. Begum Syeda Noor Vs. Md. Kadam Ali Bhuiyan and others, 15 BLD (HCD) 432. Ref: 45 DLR 362; 9 DLR(PC) 682 and 36 DLR(AD)220-Cited. Order XLI Rule 27 Additional evidence in appellate Court When conditions under which an application for adducing additional evidence can be allowed are absent the appellate Court cannot allow additional evidence. An application for, additional evidence can be allowed only when the appellate Court finds it necessary to pronounce a proper judgment or for any other substantial cause. Daulat Chandra Gope alias Mrityunjoy Gope Vs. Mosammat Monowara Be gum, 16 BLD (AD) 251. Order XLI Rule 31 Contents of judgment of the appellant Court The appellte Court as. the final court of fact while reversing the finding of the trial Court ignores the oral evidence of the parties, does not arrive at any finding on possession, far less reversing the trial Court’s finding thereon, and fails to discuss the anomalies found by the trial Court with regard to exhibited documents and surmises that plaintiff’s heirs being minor and a lady it was not possible for the adversary to arrange fraudulent entries in Auction Registrar, such an order of reversal is not contemplated in law. The case is remanded to the appellate Court for rehearing the appeal in accordance with law. Narayan Chandra Dey Vs. Ali Azam Sarder, 16 BLD (AD) 271. Order XLI Rule 31 Trial Court’s findings should not be easily disturbed as a matter of course and before reversing the findings and decisions of the trial Court, the appellate Court should think twice or more than twice. Md Monir Hossain and others v. Md Shamsul Hoque Mondal and others, 22 BLD (HCD) 509. Ref: Sadequr Rahman Chowdhury Vs. Mvi. Abdul Ban, 22 DLR 858; Chitta Ranjan Sutar Vs. Secretary, Judicial Department, Government of East Pakistan, 17 DLR 451; Md. Badruddin Khan Vs. Bangladesh and others, 36 DLR(AD) 52; Jahed Ali Mondal Vs. Jamini Kanta Dey, 7 BLD(AD) 156. Order XLI Rules 24 and 31 The court of appeal below being the last court of facts is required to consider the material evidence on record, both oral and documentary, and thereafter either to affirm or reverse the judgment of the trial court after assigning reasons therefor. The court of appeal below merely shirked its responsibility in sending back the case on remand to the trial court without itself deciding the appeal on merit on the basis of the evidence on record. The action of the Court of appeal below is deprecated and the case is sent back on remand to it for deciding the appeal on merit on consideration of the evidence on record. Benode Behari Mondal Vs. Arabinda Sarder and others, 16 BLD (HCD) 93. Order XLI Rule 31 A Court of appeal acts illegally and shirks its responsibility when it allows an appeal without discussing and considering any evidence adduced by the contending parties and considered by the trial Court and that too without reversing any of the findings made by the trial Court with reference to the evidence on record. Mahmudul Huq and others Vs Nowab Au Chowdhury and others, 16 BLD (HCD) 195. Order XLVII Rule 1—Review In view of the paramount consideration that there should be an end to litigation, the Court will be reluctant to entertain an application for review unless it is covered by the provisions of Order 47 Rule.1 of the Code of Civil Procedure. Halima Zaman and others Vs. Govt. of Bangladesh, 18 BLD (HCD) 296. Ref: 21DLR(SC)46; 31DLR(AD)266; 36 DLR (AD)108; 16BLD(AD)9: 48DLR (AD) 178—Cited. Order XLVII Rule 1—Review Order 47 Rule I CPC contemplates review of a judgment or an order under specified conditions: (1) on discovery of new and important matter or evidence which was not known to or could not be produced by the petitioner before, (i) on account of some mistake or error apparent on the face of the record or (iii) any other sufficient reason. Unless a prayer for review is based on the grounds mentioned above, the Court will not sit on the matter again for a re-hearing or further hearing which is already concluded by decision. Basharatullah, being dead his heirs: Fazle Karim and others Vs. Government of Bangladesh and others, 16 BLD (AD) 9. Ref: PLD 1962 (SC)335; 4ODLR(AD) 23; 44DLR (AD) 1 ;—Cited. Order XLIII rule 31 Without adverting to the materials on record and on the basis of surmises, an appellate court should not shirk its responsibility by sending a suit on remand for fresh trial. On revisional application, if the Court finds sufficient materials on record, it can dispose of the suit on merit without remanding to the appellate court or trial court. In the instant case, as the plaintiffs have no title to the suit property, as determined in a suit filed by their predecessor and upheld by the Appellate Division, and have thereby become trespassers, they are not entitled to any relief against the true owners. Therefore, the plaintiffs’ suit for permanent injunction against the defendants from interfering with their possession of the suit property is not maintainable. Shaharbanu and another v. Lailun Nahar Ershad and others, 22 BLD (HCD) 325. Ref: Hussain Ahmed Chowdhury alias Ahmed Hossain Chowdhury and others v. Md. Nurul Amin and others 47 DLR(AD)162; Chand Mohammad Mondal v. Rayezuddin Ahmed and others 1ODLR193; Sangawwa and others v. Yemnappa and another AIR 1980 Kamataka 220; Khairunessa, being dead, her heirs, Feroz Alam and others v. Zobaida Nahar alias Zharna and others 49 DLR(AD)77; Safaruddin and others v. Fazlul Huq and others 49 DLR(AD)151; Salam Khatum and others v. Zilla Parishad, Chittagong, represented by its Secretary and others 51 DLR (AD) 257. Order XLVII Rule I Review Review of an order made in a case pending before the Artha Rin Adalat is not permissible in law. Uttara Bank Ltd. Vs. MIs. Gold Hill Tobacco Complex Ltd. and others, 15 BLD (HCD) 329. Ref: Sultan Alam alias S.A. Badal Vs. Rupali Bank, 46 DLR 292; Sultana Jute Mills Ltd. Vs. Agrani Bank, 14 BLD(1994)(AD) 196—Cited. Order XL VII Rule 1 It is a well-settled proposition of law that the right to review is a substantive right but this power is not an inherent power. Such a power must be conferred by law either specifically or by necessary implications. A review under Order 47 Rule 1 C.P.C. does not lie before the Artha Rin Adalat. Sultan Alam @ S.A. Badal. Vs. Rupali Bank Ltd. and others, 14 BLD (HCD) 297. Ref: 44 D.L.R.(AD) 40; A.I.R. 1940 (PC) 167; A.I.R. 1973 (SC) 1016; II BLT (AD) 23. Order XLVII Rule 2 Review on grounds other than the discovery of new and important matters or the instance of any clerical mistake or error apparent on the face of the decree specified in Rule 2 of order XLVII CPC is not contemplated by law. A successor Judge is incompetent to hear a review application if it was not filed before the Judge who had passed the order Sought decree to be reviewed. Deputy Commissioner, Jamalpur, and others Vs. Md. Nurul Hossain and another, 13 BLD (AD) 225. Order 47, Rule 1 Seeking decree for permanent injunction and for declaration that the property in suit is not enemy property i.e. vested property. Provision of the law relating to review that an application for review is entertainable from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by a party at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. Matiar Rahman being dead his heirs vs. Assistant Custodian of Enemy Property Lands (Md. Ruhul Amin CJ)(civil) 4 ADC 991 For a declaration that the decision of the authorities in renewing his lease in respect of only half of the suit land was void, inoperative and not binding on him and he was entitled to the renewal of the lease in respect of the entire suit land alleging, inter alia, that the suit land originally belonged to Tokani Chowdhury and others. Md. Serajul Islam vs. Shaikh Hayet Ali and others (Md. Joynul Abedin J)(Civil) 4 ADC 1001 Order XLVII, rule 1 Being aggrieved by that judgment and order of the Administrative Tribunal this petitioner filed appeal before the Administrative Appellate Tribunal. The Administrative Appellate Tribunal also, after hearing the petitioner, found the case barred by limitation and dismissed the appeal. The petitioner thereafter filed the above mentioned Civil Petition for leave to Appeal No.529 of 2008 be- fore this Division. Md. Juhaque Ali vs. Government of Bangladesh (Nazmun Ara Sultana J) (Civil) 9 ADC 777 Order 47 Rule 1 The Government made the order of re- lease as per provisions of section 12 of the Abandoned Property (Supplementary Provisions) Ordinance, 1985 (Ordinance No.54 of 1985), in accordance with law. While releasing the case house from the list of abandoned buildings by the notification dated 16.05.1989, the Government directed the Commissioner of Settlement for taking necessary steps for handing over possession to the owner but writ respondent No.4, a Government officer, failed to comply with the Government direction for restoration of possession to the owner. Md. Abul Kashem vs. Hosna Ara Begum (Syed Mahmud Hossain J) (Civil) 10 ADC 312 Order 47, Rule 1 From the order-sheet of the execution case, we noticed that the petitioner did not raise the jurisdiction or the authority of the presiding officer of the Artha Rin Adalat to sell the mortgaged property in accordance with section 33 of the Artha Rin Adalat Ain at any point of time rather he had surrendered to the juris- diction of the Adalat and prayed for staying further proceedings of the execution case on different grounds. There- fore, we find no substance as regards the question of jurisdiction raised by the learned counsel. Md. Saidur Rahman vs. Farid Uddin Mahmud (S.K. Sinha J)(Civil) 8 ADC 698 The Code of Civil Procedure, Order 47 Rule 1 Seeking decree for permanent injunction and for declaration that the property in suit is not enemy property i.e. vested property. Matiar Rahman vs. Assistant Custodian of Enemy Property Lands (Md. Ruhul Amin CJ) (Civil) 6 ADC 20 Order XLVII, Rule 1- Review- Admittedly, it is not a case of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the defendant-petitioner or could not be produced by him at the time when the judgment sought to be reviewed was passed. In the review application as many as 7(seven) grounds have been taken and all grounds relate to the factual aspect of the case. It is clear that the leave petition was dismissed considering the factual aspect of the case which was found against the defendant by all Courts and as already stated hereinbefore, the petitioner failed to pin point any ground for review within the meaning of Order XLVII, rule 1 of the Code of Civil Procedure in the review application and as such, we find no reason to review the judgment and order passed by this Division dismissing the leave petition. .....Mozzammel Haque (Md.) =VS= Md. Abdus Salam, [4 LM (AD) 275] Order 47, rule 1- Review- No ground at all for reviewing It appears that both the Administrative Tribunal and the Administrative Appellate Tribunal found that the original Administrative Tribunal case was filed beyond the statutory period of limitation and as such was not maintainable. This Division also considered this point of limitation and found that the Administrative Tribunal case was barred by limitation. So we find no ground at all for reviewing the judgment and order of this Division. There is no mistake or error apparent on the face of record nor any other grounds mentioned in Order 47, rule 1 of the Code of Civil Procedure for reviewing the judgment and order sought to be reviewed. This review petition is dismissed. ......Juhaque Ali (Md.) =VS= Government of Bangladesh, [4 LM (AD) 266] Order XLVII, rule 1- Review- The learned Advocate for the review petitioners though has made submissions trying to point out some error in the judgment under review but could not make out any ground for review of the said judgment and order. The grounds for review of any judgment and order has been enumerated in Order XLVII rule 1 of the Code of Civil Procedure. The learned Advocate for the leave petitioners could not establish any of these grounds for review of the judgment and order in question. The pleas of the defendant-petitioners that the High Court Division and also this Division did not consider at all the facts that the plaintiffs' case that Kabir Ahmed died in the year 1970 has not been proved and that the plaintiffs could not prove the genuineness of their alleged title deeds are not correct at all. This Division and also the High Court Division have considered both these defence pleas meticulously and come to a definite finding. There is no ground for review of the judgment and order in question and hence this review petition is dismissed. ...Jalalabad Co-operative Housing Society Ltd.-VS-Mst. Roushan Jahan, [4 LM (AD) 261] Order 47- Review- We do not find any new point or ground, as contemplated under order 47 of the Code of Civil Procedure, which could not be found earlier by the petitioner and could not be placed before this Division at the time of dismissal of the leave petition. ......Abdul Wadud Mia (Md.) =VS= Najibunnessa, [4 LM (AD) 11] Order 47, Rule 1- Review- Review matters are governed and regulated by the provisions of Order 47, Rule 1 of the Code of Civil Procedure and Order 26 of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988. As a matter of practice and rules this court proceeds to review a judgment pronounced earlier by it upon an application for review by an aggrieved party. Prior to hearing a review petition the court has to be satisfied that grounds for review as mentioned in Order 26 of the said Supreme Court Rules exists. Reference may be made in this regard to the case of Mahbubur Rahman Sikder Vs. Mojibur Rahman Sikder, 37 DLR(AD)145. Grounds taken for review are not new and these grounds were agitated earlier by the respondent before this court and the same were answered while dismissing the leave petition. The respondent by filing the review petition merely sought for rehearing of the matter which is not permissible in law. We are of the view that this court upon correct assessment of the materials on record arrived at a correct decision. There is therefore no warrant in law to interfere with the same. ..... GM, Postal Insurance Eastern Region VS A.B.M. Abu Taher, [4 LM (AD) 118] Order XLVII, Rule 1(1)- Review is not rehearing of an appeal- Review is not rehearing of an appeal or to give a defeating party chance to start a second innings and the reasons given by a Court in not relying upon an exhibit in a case do not definitely come within the phraseology "or on account of some mistake or error apparent on the face of the record" within the meaning of rule 1(1) of Order XLVII of the Code of Civil Procedure read with rule 1 of order XXVI of The Supreme Court of Bangladesh, (Appellate Division) Rules 1988......Suza Uddoula & others =VS= Arshad Hossain Haider & others, [1 LM (AD) 170] Order XLVII, Rule 1- Review- Mere production of some documents at a belated stage cannot outweigh the evidences already on record which were thoroughly considered by all the Courts below. By providing some documents, the leave-petitioners tried to make a total departure from the written statement although they produced oral and documentary evidence in support of the defence case as already made out in the written statement. In the light of the findings made before, we are of the view that the petitioner could not make out any case for review as provided under Order XLVII Rule 1 of the Code of Civil Procedure. Accordingly, this review petition is dismissed....Abdur Rahman =VS= Moti Lal Chowdhury, [6 LM (AD) 227] Order XLVII, Rule 1(1) Review- "The Rules provide that review of a judgment or order in a civil proceeding may be made "on grounds similar to those mentioned in Order XLVII rule 1 of the Code of Civil Procedure", that is to say, on discovery of new and important matter or evidence which was not known or could not be produced before, (ii) on account of some mistake or error apparent on the face of the record, or (iii) for any other sufficient reason. Consistently with the principle that there is to be an end to litigation, it is now well-recognized that review is not an appeal nor a rehearing merely on the ground that one party or another conceives himself to be dissatisfied with the decision sought to be reviewed. Unless a prayer for review is based on the grounds mentioned above, the Court will not sit on the matter again for a rehearing or further hearing which is already concluded by decision even if that be erroneous." In the light of the findings made before, we do not find any substance in this review petition. Accordingly, this review petition is dismissed with-out any order as to costs. ...IUBAT =VS= Mohammad Ismail, [9 LM (AD) 568] Order XLVII, rule 1- Review- Subject to the law and the practice of the court, the court may, either of its own motion or on the application of a party to a proceeding, review it's judgment or order in a Civil proceeding on grounds similar to those mentioned in Order XLVII, rule 1 of the Code of Civil Procedure and in a Criminal Proceeding on the ground on an error apparent on the face of the record." A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error apparent on the face of the record. ...Major Md. Bazlul Huda (Artillery) =VS= The State, [10 LM (AD) 581] Code of Civil Procedure [V of 1908] Order 47 rule 1 Supreme Court of Bangladesh (Appellate Division) Rules, 1988 Order 26 Rule 1 Order XXVI rule 1 of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988 prescribes limited scope to review its own order/judgment, i.e. to prevent miscarriage of justice or palpable or to correct grave errors committed by it. The Appellate Division opined that a plain reading of the this provision clearly shows that this court can review its judgment on grounds available in Order 47 rule 1 of the Code of Civil Procedure in a civil matter. Therefore, the court cannot travel beyond the permissible limits, that is to say, the scope for hearing a review matter is very much restricted than a statutory appeal provided by law. The legislature has conferred a limited jurisdiction circumscribed by definite limits in order 47 rule 1 of the Code of Civil Procedure. The grounds are, namely, discovery of new and important matter or evidence which after exercise of due diligence was not within the applicant's knowledge or could not be produced at the time when judgment was passed. Secondly, if there is mistake or error apparent on the face of the record. Thirdly, for any other sufficient reasons. It is to be borne in mind that the power of review is not an inherent power but it is a creature of statute. It is not an appeal in disguise. These are established principles of law. If the statutory provisions empowering a court are not adhered to, there will not be end of litigation. Exercising power of review overriding the express provisions would not be in the interest of justice rather it would be permitting the party to abuse the process of the court. Even an omission to bring to the notice of the court a relevant provisions of law is not a legal ground for review. Professor Muzaffer Ahmed -Vs- Bangladesh Bank and others (Civil) 22 ALR (AD) 136 Code of Civil Procedure [V of 1908] Order 47, rule 1 The leave petition was dismissed considering the factual aspect of the case which was found against the defendant by all Courts and as already stated hereinbefore, the petitioner failed to pin point any ground for review within the meaning of Order XLVII, rule 1 of the Code of Civil Procedure in the review application and as such, we find no reason to review the judgment and order passed by this Division dismissing the leave petition. The Appellate Division held that the learned Advocate however could not overcome the legal barrier that the alleged undertaking has been neither produced in Court nor marked as exhibit in the case and that the defendant-petitioner hereof did neither he himself has given deposition nor adduced any witness or produced the agreement in question in the suit to prove his claim of loan and security" dismissed the leave petition. From the above, it is clear that the leave petition was dismissed considering the factual aspect of the case which was found against the defendant by all Courts and as already stated hereinbefore, the petitioner failed to pin point any ground for review within the meaning of Order XLVII, rule 1 of the Code of Civil Procedure in the review application and as such, the Appellate Division finds no reason to review the judgment and order passed by the Appellate Division dismissing the leave petition. Accordingly, this review petition is dismissed. Md. Mozzammel Haque -Vs- Md. Abdus Salam and another. (Civil) 22 ALR (AD) 171 Code of Civil Procedure [V of 1908] Order 47, Rule 1(1)-It is now well- recognized that review is not an appeal nor a rehearing merely on the ground that one party or another conceives himself to be dissatisfied with the decision sought to be reviewed. Unless a prayer for review is based on the grounds, the Court will not sit on the matter again for a rehearing or further hearing which is already concluded by decision even if that be erroneous. The Appellate Division placed reliance on the case of Fazle Karim and others vs. Government of Bangladesh and others, (1996) 48 DLR (AD) 178 wherein the Appellate Division held as under: "The Rules provide that review of a judgment or order in a civil proceeding may be made "on grounds similar to those mentioned in Order XLVII rule 1 of the Code of Civil Procedure", that is to say, on discovery of new and important matter or evidence which was not known or could not be produced before, (ii) on account of some mistake or error apparent on the face of the record, or (iii) for any other sufficient reason. Consistently with the principle that there is to be an end to litigation, it is now well-recognized that review is not an appeal nor a rehearing merely on the ground that one party or another conceives himself to be dissatisfied with the decision sought to be reviewed. Unless a prayer for review is based on the grounds mentioned above, the Court will not sit on the matter again for a rehearing or further hearing which is already concluded by decision even if that be erroneous." Having gone through the principle expounded in the case referred to above, the Appellate Division is of the view that the instant review petition does not come within the principle ex- pounded in the judgment made above. In the light of the findings made before, the 30 Appellate Division does not find any substance in this review petition. Accordingly, this review petition is dismissed without any order as to costs. International University of Business. Agriculture and Technology (IUBAT) and another Vs. Mohammad Ismail and others. (Civil) 18 ALR (AD) 1-6 Code of Civil Procedure (V of 1908) Rule 1(1) of Order 47 read with The Supreme Court of Bangladesh, (Appellate Division) Rules, 1988 Rule 1 of order XXVI Review is not rehearing of an appeal or to give a defeating party chance to start a second innings and the reasons given by a Court in not relying upon an exhibit in a case do not definitely come within the phraseology "or on account of some mistake or error apparent on the face of the record" within the meaning of rule 1(1) of Order XLVII of the Code of Civil Procedure read with rule I of order XXVI of The Supreme Court of Bangladesh, (Appellate Division) Rules 1988. In view of the above, the Appellate Division does not find any substance in the submission of the learned Counsel for the petitioners and thus no merit in the review petition and accordingly the same is dismissed. Suza Uddoula and others -Vs- Arshad Hossain Haider and others (Civil) 20 ALR (AD) 27-30 Code of Civil Procedure [V of 1908] Order 47 Rule 1-Mere production of some documents at a belated stage cannot outweigh the evidences already on record which were thoroughly considered by all the Courts below. The Appellate Division observed that admittedly, the plaintiffs' title to the suit property was not disputed or denied. It was not denied or disputed that plaintiff Nos. 1- 3 were minors at the time of executing alleged bainapatra. Proforma-defendant Nos. 13 and 14 took LTI of plaintiff No. 4 in blank papers who was an uneducated widow. The plaintiffs case is that they never executed the bainapatra or authorized proforma-defendant Nos. 13 and 14 to do the same for their benefit stating that at the relevant time plaintiff Nos. 1-3 were minors. The definite case of defendant No. I was that he went into possession of the suit land pursuant to the agreement for sale on payment of an amount of Tk. 30,000/- in cash and cheque to the plaintiffs. But cu- riously enough defendant No. 1 could neither produce the bainapatra nor offer any explanation for non production of the same. Defendant No. 1 stated to have made a G.D. entry to that effect with the local police station but he could not produce the copy of the G.D. entry in the Court. Consequently, the defendant-appellant totally failed to prove and substantiate the bainapatra in accordance with law. Defendant No. 1 stated that the bainapatra was executed on 18.12.1968 but he did not state that the bainapatra was executed by the plaintiffs. Subashini Chowdhurani, plaintiff No. 4 as well as mother of plaintiff Nos. 1-3 while deposing as P.W.1 denied execution of any bainapatra and stated specifically that she did not authorize proforma-defendants to negotiate with defendant No. 1 or to execute any bainapatra with him for selling the suit property. Mere production of some documents at a belated stage cannot outweigh the evidences already on record which were thoroughly considered by all the Courts below. By providing some documents, the leave-petitioners tried to make a total departure from the written statement although they produced oral and documentary evidence in support of the defence case as already made out in the written statement. Abdur Rahman and others. Vs. Moti Lal Chowdhury and others. (Civil) 15 ALR (AD) 206-208 Code of Civil Procedure [V of 1908] Order 47 Rule 1 read with Partnership Act [IX of 1932] Section 32-The Appellate Division held that it is admitted that as the disputed property belongs exclusively to the firm, no partner can claim any part of the property as his own and what a partner is entitled to his share of profits only, so long the partnership continues. Upon dissolution of the partnership, his share is his proportion of money representing the firm's asset including immovable property after liquidation of the partnership debts and liabilities. On dissolution of firm each of the partners is entitled to receive his share of assets of the firm to which he was entitled. Section 32 of the Partnership Act provides for retirement of a partner from the partnership but it makes no provision of separation of share of the retired partner but this matter has been left to be determined by agreement between the partners. Bangladesh Rubber Industries and another. Vs. Dine Ara Begum and others. (Civil) 15 ALR (AD)181-184 Order XI Rule I Time limit for Interrogatories Whether the limit is directory or mandatory The intention of the law—make is in making the provision that the plaintiff or the defendant by leave of the Court may deliver interrogatories in writing within 10 days from the date of’ framing of issues is to have a speedy disposal of suits --- - Where the law-makers provide a fixed period of time for doing a thing and does not make any consequential provision to follow in the event of failure to perform the act w tb in the specified period, such pro is ion of law fixing time limit is not mandatory hut directory in nature — Code of Civil Procedure (Amendment) Ordinance (XLVIII of 1 983). M/s Kohinoor Chemical company Ltd. and others Vs. 14/S. Eastern Shippers and Traders Ltd: 10 BLD (HCD) 108. Order XI Rule I Discovery by Interrogatories SCC suit for eviction of tenant on the ground of default — Reply to interrogatories can he decided in a properly framed title suit. Sree Datal Benerjee alias Muni Benerjee Vs. Sree Sarat Kamar Paul and aiiother 12BLD (HCD) 3 Order XI Rule 8 Interrogatories ---— Time to answer interrogatories — According to the amended provision of the Code interrogatories shall be answered within 10 day’s and in that view the Subordinate Judge acted without jurisdiction in allowing the answer in contravention of the provision of the Code — If the Court allows the interrogatories to he accepted beyond 10 day. Then that will operate against the spirit ol law. Code of Civil Procedure, 1983 Xl VIII oh 1983). Abbas Ali Vs. Sekandar Ali and others. 8BLD (HCD) 330 Order Xl Rule 21 Striking out pleadings for not answering interrogatories —-— Pleading cannot be struck out in the absence of an application therefore. The foundation for the exercise of the power under this Rule is the fulfillment of the two requirements of Rule 2 I of Order Xl of the Code - the first is the failure of the interrogated party to comply with ny order to answer the interrogatory- and the second is the application by the interrogating party to the Court to impose the penalty. Md. Yusuf Vs. Mofza1 Ahmed Sowdagar, 1BLD (AD) 456 Ref. 26D1.R 519 A.I.R. 1968 All (Lucknow Bench) 119 ----- Cited. Order Xli Rule 6 The expression ‘‘or otherwise” under Rule 6 of Order XII of the Code of Civil Procedure Would empower the Court to see the admission made elsewhere iii the proceeding during the trial and it should not he confined only to written statement — It can also he in the written objection filed against the order of adinterm attachment before the judgment and also in the application made for vacating the final attachment order. M/s. A. Elahee and Co. Vs. M.M. Aziz and others, 12 BLD (HCD) 31 Ref: PLD 1966 (Karachi) 75: PLDI952 (Dhaka)137; 25 DLR 418; A.1.R.1974MP)75: (1914) Chancery Division. Vol. 1. 904. Cited. Order XIV Rule 1—3 Evasive denial — Whether any issue is raised by such denial — Doctrine of non-traverse Material averment passed over by evasive denial is taken to he admitted — There was no issue belore the trial Court and as such the appellate Court not is requird to give any finding in respect of ceiling of land in the absence of any specific averment to the contrary. State Acquisition and Tenancy Act, 1950 (XXVIII> of 1951), S. 90 —- Code of Civil Procedure, 1908 (V of 1908). Or. VIII Rules 3. 4 and 5. Sultan Ahmed and others Vs. Mohaminad Islam and others, 4BLD (HCD) 183 Ref. 35 DLR 79; 1 BLD (Ad) 280—Cited. Order XIV Rule 2 Issues of law and fact — Court to give decision on all issues The trial of a suit should not ordinarily he held piecemeal — All the issues raised should he disposed of one judgment — The Court may hear the issue of maintainability as a preliminary issue but must postpone its judgment until its findings on other issues are record as well when it pronounces its judgment — Code of Civil Procedure. 1908 (V of 1908a) Or. XV: Code of Civil Procedure, 1983) (XLVIII ‘l983)Or. XXr. 5. Sultan Miab Vs. Sree Haradlian Sh,aha and others, 8BLD(HCD)293 Ref. 12 DLR (Dhakal 775; 3>) I)LR (SC)30—- Cited. Order XIV Rule I Issue of fact . When it cannot he entertained — It was tried to he raised before the Appellate Division that the plaintiff N CS die possession covers about 3.50 acres of land whereas according to the plaint he has possession over 1argelarea the question as to the exact area under the exclusive possession of the plaintiff was raised here or the first time — It was not an issue before any of the courts held and as such it cannot he entertained at this stage Moharram Ali and another Vs. 4fohammad Madhu Mia and others, 9BLD (AD)6 7 Order XIV Rule 2 Issue of law — Issue touching maintainability of suit Whether the trial Court committed any error of law in rejecting the prayer for dismissing the suit on the question of maintainability at the stage of its peremptory hearing Whatever may be the trial Courts view on the issue of law, it is not mandatory for the Court to try and determine the issue of facts as well The trial Court may’ hear the issue of maintainability as a preliminary issue but it must postpone its judgment till the hearing of the suit on all other issues and thereafter give its findings on the issue of maintainability and on other issues as well, Inspector, Railway Nirapatta Bahi iii, Bangladesh Railway, Khulna and others Vs. Sohrab Ali, 10 BLI)( H CD) 195 Ref. 30DLR (SC) 30: I9DLR65; 40 DLR26 Cited. Order XV Rule 3 Court to give decision on all issues -Issues of law and tact — The trial of a suit should not ordinarily be held piecemeal —— All the issues raised should be disposed of by one ludmen1 The Court may hear the issue of maintainability as a preliminary issue but it must postpone its judgment until its findings on other issues are ‘corded as well when it pronounces its judgment—Code of Civil Procedure. 1908 (V of 1908). Or. XIV r. 2: Code of Civil Procedure, 1983 (XL VIII of 19831. or. XX r. 5. Sultan Miahi Vs. Sree Haradhan Shaha and others, 8 BLD (HCD) 293 Ref. 12 DLR(Dhaka)775; 30 DLR(SC)30—Cited. Order XV rule 3 read with Order XIV rule 2 Framing of issues on law as well as on facts, whether gives the parties a chance to resolve the dispute once for all. Framing of issues on law as well as on facts gives the parties a fair chance to resolve the disputes in the suits once for all by adducing evidence at a minimum cost and shorter time — Sufficiency of evidence also gives the Court a better advantage in coming to a fair decision and the possibility offsetting in injustice and hardship upon any party becomes minimum. Naresh La! Saha and others Vs. Bhupati Mohan Roy and others, 11 BLD (HCD) 457 Ref. 30DLR (SC) 30— Cited. Order XV Rule 3 Issue of law — Issue touching maintainability of suit — Whether the trial Court committed any error of law in rejecting the prayer for dismissing the suit on the question of maintainability at the stage of its peremptory hearing Whatever may be the trial Court’s view on the issue of law, it is now mandatory for the Court to try and determine the issue of facts as well — The trial Court may hear the issue of maintainability as a preliminary issue but it must postpone its judgment till the hearing of the suit on all other issues thereafter gives its findings on the issue of maintainability and on other issues as well. Inspector, Railway Nirapatta Bahini, Bangladesh Railway, Khulna and others Vs. Sohrab Au, 10 BLD( HCD)195 Ref. 3ODLR (SC)30; 19DLR65: 40 DLR 236—Cited. Order XVI Rule 10 The Court can compel the attendance of the witnesses by issuing proclamation and, if necessary, by a warrant either with bail or. without hail, if it has reason to believe that such an evidence or production of document is material and that such person has, without lawful excuse, failed to attend the Court or to produce the document in compliance with such summons or has intentionally avoided service. The Court, at any time, if it thinks necessary to examine any person, may even suo motu order summons to be served upon him to give evidence or to produce any documents in the Court. There is no bar is issuing summons upon the cited witnesses for the 2nd time if it is necessary in the interest of justice. The Court ha also inherent power to cause service of summons upon the witnesses of the parties whenever necessary — Of course, if the application for service of summons is not a bonafide one then the Court may, refuse such prayer. Dildar Hossaln and another Vs. Md. Sharif Hossain and others, 12 BLD (HCD) 412 Order XVII Rules 2 and 3 Adjournment of hearing — When the Court can refuse adjournment and dispose of the case on merits —- Since it cannot be said that there were no materials or evidence before the Court so that it could not dispose of the case on merits, the provisions of Rule 3 are more appropriate — In the instant case, the Court seems to have committed no error in deciding the case on merits. Abdul Gani Jamal Vs. Sarat Kumar Kanangoe, 5BLD (AD) 311 Ref: A.1.R l943 (Born) 321; PLD1969 (SC) 270; 63C.W.N. 300; A.I.R.l941.(Bom) 83; I.L.R. (Cal) 956 - Cited. Order XVII Rule read with Order IX: Rule 6. When an exparte proceeding can be ordered — It can only be ordered in respect of absence on the day fixed in the summons or on the day to which the hearing of the case has been adjourned. Adamjee Jute Mills Ltd. Vs. The Chairman, 3rd Labour Court, Dhaka and another, 7BLD (HCD) 67 Ref. PLD1963 (SC) 97 — Cited. Order XVII Rule 2 read with Order 1X Rules 6 and 7 An exparte proceeding against a defendant is permissible when the suit is fixed for hearing in default of appearance or the hearing of the suit is adjourned for further hearing and the defendant fails to appear when the suit is called on for hearing — Law does not contemplate an exparte hearing’ of the suit when the defendant fails to file a written statement — When the law does not contemplate an exparte hearing for failure of the defendant to file written statement such proceeding cannot be treated as an exparte one — Before the dceree is passed in a suit fixed for hearing in default of written statement, the defendant may come to the Court and file a written statement and the Court can accept it in its discretion after giving reasons Superior Court will not interfere with the reason except when it is perverse. K.D.H. Laboratories Ltd. Vs. Rupali Bank and others, 8BLD (HCD) 92 Ref. A.I.R.1964 (SC) 993; 39DLRI I — Cited. The Code of Civil Procedure, 1908 Order 17, rule 1 (4) This petitioner appeared in that suit and filed written statement and the suit was ultimately ready for peremptory hearing and peremptory hearing also started and one witness of plaintiffs also was examined in part. Thereafter, on the plaintiffs' prayer several adjournments were allowed. On 24.01.2005 also the plaintiffs prayed for adjournment and the learned Judge allowed that prayer for adjourn- ment with a cost of Tk.200/- fixing 23.02.2005 for further hearing. M. A. Razzaque vs. Syed Maynul Haq (Naz- mun Ara Sultana J) (Civil) 9 ADC 428 Order XVIII read with section 151C.P.C. Question of reopening of the plaintiff’s case by calling fresh witness — In the present case the High Court Division had fallen upon section 151 C.P.C. to meet the ends of justice — It was conscious about the special circumstances which impelled it to provide an opportunity to the plaintiff to examine witnesses after the close of defendant’s witnesses — The discretion used in allowing the examination of witnesses in the manner as provided under Order XVIII C.P.C. has been rightly exercised. Md. Nurul Islam Vs. Md. Abdur Rashid and others, 3BLD (AD)310 Order XVIII Rule 2 Final hearing — Meaning of — The words ‘final hearing’, in the context of the Code of Civil Procedure embrace the entire period during which evidence is given and arguments are concluded. Chowdhury Tanbir Ahined Siddiky Vs. Bangladesh and others, 8BLD (HCD) 485 Order XVIII Rule 16(1) Order XVIII Rule 16(1) of the Code of Civil Procedure empowers a Court to take the deposition of a witness immediately when a witness is about to leave the jurisdiction of the Court or for further sufficient cause The expression “suffice cause” used in the said rule obviously covers the grounds of a witness being very old or dangerously ill. Mvi. Badrul Kabir Vs. Maulaiza Abdul Quayum and others, 12 BLD (HCD) 442 Ref. 29DLR (HCD)248 Cited. Order XVIII Rule 17 Recalling and examining witness — An enabling power conferred upon the Court to be used for ends of justice — A litigant cannot claim exercise of such discretionary power when the rules of evidence do not permit, it — Only because it is a highly contested matter this power ought not to have been used. Nurul Islam Vs. Md. Abdur Rashid and others, 5BLD(AD)311 Ref. A.1.R. 1965 (SC) 1008; 1981 A.C. 173 (179); A.I.R. 1947 (Bombay) 156 — Cited. Order XX Rule 5 read with section 115 C.P.C. Additional issues — Trial Court omits to incorporate additional issues in the judgment and give necessary finding — Appellate Court’s failure to consider the same and record findings on the issues is an error of law apparent on the face of record. Mst. Sahera Khatuiz Vs. Mrs. Anwara Khat tin and others, 2BLD (HCD)60 Order XX Rule 5 Issues of law and fact — Court to give decision on all issues — The trial of a suit should not ordinarily beheld piecemeal — All the issues raised should be disposed of by one judgment — The Court may hear the issue of maintainability as a preliminary issue but it must postpone its judgment until its findings on other issues are recorded as well when it pronounces its judgment. Sultan Miah Vs. Sree Haradham Shaha and others, 8 BLD (HCD) 293 Ref. I2DLR (Dhaka) 775: 30 DLR (SC) 30 —Cited. Order XX Rule S Issue of Law — Issue touching maintainability of suit — Whether the trial Court committed any error of law in rejecting the prayer for dismissing the suit on the question of maintainability at the stage of peremptory hearing?— whatever may be the trial Court’s view on the issue of law, it is now mandatory for the Court to try and determine the issue of facts as well — The trial Court may hear the issue of maintainability as a preliminary issue but it must postpone its judgment till the hearing of the suit on all other issues and thereafter give its findings on the issue of maintainability and on other issues as well. Inspector, Railway Nirapatta Bahini, Bangladesh Railway, Khulna and others Vs. Sohrab Ali, IOBLD (HCD) 195 Ref: 30DLR (SC) 30: 19 DLR65: 40 DLR 236 — Cited. Order XX Rule 18 Partition of undivided family dwelling house—Procedure to be of followed by the Court in deciding the prayer for purchase of the share from the stranger — purchaser — Whether the High Court Division is justified in setting aside concurrent decision of the Courts below allowing the prayer for repurchase of the share of the stranger purchaser by a member of the undivided family dwelling house — The jurisdiction of the Court is limited to questions relating to the rights of the co-sharers of the original undivided family to compel the stranger transferee to sell to the former the portion of the dwelling house purchased by the latter — The purpose of section 4 of the Partition Act is to see that a transferee outsider does not force his way into a dwelling house in which other members of the transferor’s family have right to live —- Once a partition decree is made in petitioner form the rest is for the Commissioner but the Court at that stage is not concerned as to what direction should be given to the Commissioner for completing the partition — The Court can only give a limited direction as to which plot is to be partitioned — The rest will be decided at the stage when the Commissioner submits his final report and the Court proceeds to consider the same— Partition Act. 1893 (IV of 18931, S.4. Sree jugal Kishori Sarker Vs. .4zizur Rabman and others, 8BLD (AD)) l1 Ref. 60C.W.N. 829; A.I.R. 1928 Cal 539: A.I.R. 1960 Cal 467: 12 Cal-U. 525; 22 C.W.N. 515; A.I.R. 1919 (Cal) 1055: A.I.R. 1928 Cal 539—Cited. Order XX Rule 19 Counter claim in a suit — Whether counter claim made by the defendant is enter tamable — The trial Court has expressed its discretion in favour of allowing the counterclaim and there is no reason for setting it aside oh the ground that the amount of the counterclaim is bigger than that claimed in the plaint by the plaintiff— One of the ends of justice is to avoid multiplicity of proceedings and it cannot be a good argument for pushing the defendant to file a separate suit — There is also no prohibition against entertaining counter-claim in the same suit, Messers United Shipping Corporation Limited Vs. W.H. Bennett and others, 4BLD (AD) 316 Ref.I27DLR (AD) 170: 46 C.W.N. 882 (885); A.I.R.1972 (SC)l048; A,I.R.l975 (Cal) 150; A.I.R. 1964 (SC) II — Cited. Order XXI Rule 15 Decree — Execution of — Question of execution in a case of joint decree holders some of whose property became vested property — Even assuming that the interest of a decree holder became vested property and the decree to the extent of his interest cannot he executed, there is no reason why the decree to the extent of the interests of other decree holders cannot be executed — Orders of the Courts below refusing execution on such grounds are set aside and the case is sent track on remand for fresh decision, Tanjina Khatoon Vs. Nabaruddin and others, 1OBLD (HCD) 250 Order XXI Rule 22(3) Execution of decree — Effect of omission to issue notice In view of the amended provision the observations of the High Court Division that the execution case was rightly dismissed by the first appellate Court for want of notice do not seem to be justified — Since the decree has already been put into execution and possession delivered to the decree holder the non-service of notice cannot be said to have vitiated the execution proceeding Nurul Alam Chowdhury and others Vs. Azimunnessa Khatun and others, 5BLD (AD) 179. Order XXI Rule 29 Stay of execution of a decree — The power to stay is discretionary with the Court — But the discretion should be exercised judicially — The Courts below were not correct in holding that the executing Court was not competent to stay execution of the decree — However, the judgment debtor sought to undo the decree on the ground that it was obtained on the basis of a false claim — His plea that he was prevented by illness from contesting the suit has been negative in a civil revision case arising out of an application under Order IX Rule 13 C.P.C. His suit is bad, prima facie and has little chance of success — 1-Ic was not therefore entitled to get an order of stay of the execution. A.K.M. Kabiruddin Vs. Mointaz Begum and others, 4BLD (HCD) 223 Ref. 29DLR (SC) 282 — Cited. Order XXI Rule 29 Stay of execution of decree — Refusal of prayer for stay when interfered with — It is true that the facts in the present case authorize an Executing Court grant stay of execution of the decree but it does not necessarily mean that the stay cannot refused even in an appropriate case The opposition could not however be disputed that even if prayer for stay was granted it ought to have been granted for a reasonable time for the appellants suit to be disposed of -— None appeared to oppose this appeal, nor did any appear before the High Court Division on half’ of the respondents — Having considered all aspects of the case, stay already granted is allowed to continue for four months re in course of which steps are to he taken et the suit disposed of. Soleman Miah and others Vs. Ishaque being dead his heirs Jairun 4ssa and others, 9BLD (AD) 73 Order XXI Rule 29 Money Execution case— W h e n execution proceedings should not he stayed — Mere filing of appeal is not sufficient to warrant slay of execution of the decree — Stay is a matter of discretion of the Court — High Court Division has given due consideration to the question as to the balance of convenience and inconvenience, nature of the decree and the submissions made on behalf of both the parties and took the view that the execution proceedings should not be stayed — The discretion has not therefore been wrongly exercised — But in view of the hardship to which the appellant might be put if the decree is executed the execution case may be stayed on payment of half of the decrial amounts. Anwar Hossain Bhuiyan Vs. Sheikh Moslem Ali 10BLD (AD) 125 Order XXI Rule 32 Decree of prohibitory injunction — Violation of the decree — Decree-holders’ remedy lies in the enforcement of the decree under Order XXI Rule 32(1) of the Code apart from any other remedy that he may have had. The expression “willfully failed to obey” in Order XXI Rule 32(1 ) of C.P. Code denotes not only a negative act of willful failure to obey but also a positive act of disobedience. Moyna Mia and others Vs. Haji Abdus Samad, IBLD(HCD)124 Ref. I6DLR6I; AIR. 1945Oudh)8l A.I.R.1961 (Mys) 268; AIR. l938(Pat) 522: A.I.R. 1950 (Mad)237 AIR. I 954(Nag) 245; A.I.R. 196 l(Pu) 547; PLD 1960 (Dac) 1022 —Cited. Order XXI Rule 32 Decree for injunction — Question of disobeying such a decree — It was imperative to find that the defendant had willfully disobeyed the order of the Court — To haul up the defendant for disobedience of injunction something more was necessary such as evidence that he had knowledge of the High Court’s order or that he had been served with notice of such an order and he willfully disobeyed it. Kad Banu and others Vs. Hajera Khatuii and others, 4BLD (AD) 302 Ref. 8 Cal. 174; 21 Cal. 74; 10 C.W.N. 297 — Cited. Order XXI Rule 32 Disobedience—remedy When a decree for injunction is passed against any party and he had the opportunity of obeying the decree and he will fully failed to obey it, the decree may be enforced by detaining him in civil prison or by the attachment of his property or by both. Sashi Mohan Sen Vs. Ain Ullah, 12BLD (AD) 8 Order XXI Rule 32 Violation of prohibitory injunction When a prohibitory injunction is violated, the remedy is not by putting the decree into execution hut by adopting other measures as provided by law — Where the prohibitory injunction has been violated, the decree is not executable and the execution case is not maintainable for any of the remedies under Rule 32 of Order XXI of the Code of Civil Procedure. Ajiran Nessa Bewa and others Vs. Md. Abdul Mannan, 12 BLD (HCD) 323 Ref. IÔDLR6I; 33 DLR 207; 13 DLR 531; 1934 CaI.402; 1938 Pat.522 Mysore 268; 1961 Punjab 547; 1969(AP)92: 1969(Kerala) 232—Cited: Order XXI Rule 34 Draft of document — notice upon, judgment debtors — Whether service of copy of the draft document on the judgment debtor in a proceeding for execution of a decree for specific performance of a contract for sale is mandatory — When a draft document is placed before the Court it is the mandatory recluirement of Law that the Court shall thereupon cause the draft document to be served on the judgment-debtor together with a notice requiring his objection, if any, to be made within a specified time — Withoui giving notice to thejudgment debtors and without causing the draft to be served on the judgment debtors the Court accepted the draft copy merely on the report of the Sherestadar — This was absolutely illegal and unwarranted. Majeda Begum and another Vs. Khoda Box Mollah and others, 7BLD (HCD) 267 Order XXI Rule 35 The decree-holders have the right to get the actual possession of the suit property in terms of the decree, the policy of law being to avoid multiplicity of proceedings. Ahmed Au and another Vs. Hazi Abdur Rashid and others, 11 BLD(HCD)1 7 Ref. A.I.R. 1917 (All) 129; A.I.R. 1936 (All) 655; A.I.R. 1941 (Born) 37; AJ.R. 1955 (All) 382; A.I.R. 1934 (Cal) 793; AIR. 1959 (Punjab) 468; A,I.R. 1961 (SC) 137; A.I.R. 1931 (Cal) 427 : 35 C.W.N. 12: A.I.R. 1931 (Cal) 427 — Cited. Order XXI Rules 35, 36, 97 to 100 read with section 151 C.P.C. Execution of decree for ejectment —— Construction of Order and Rules — Locus Standi. Order XXI Rule 97 : Unless and until the decree-holder makes an application under Order XX1 Rule 97 of the Code, a person who is not a party to the decree, has no locus standi to make an application under Rule 99- for adjudication of his alleged claim of title or possession over the disputed property. If he makes such an application the same is liable to be dismissed as being not maintainable. Where the decree-holder made no complaint under Rule 97 alleging any resistance or obstruction by the petitioners in obtaining possession in execution of the decree, it was not - open to the petitioners, who are third parties. to make any independent application under Rule 99 seeking adjudication of their alleged claim. Regarding 151 C.P.C.— there being a remedy open to a third party by way of a separate suit—There was no room for exercise of the inherent power. Haroon and another Vs. Mst. Sufia Khatun and another, 11 BLD (HCD) 374 - Ref. A.I.R. l980(MP) 146; 1972 .MPLJ 254; A.I.R. 1933(Nag) 369; A.I.R. 1941 (Nag)322; A.I.R. 1953 (Cal)399: A.1.R 1935(Nag)2l2; 1964 MPLJ (Note) 126: A.I.R. 1983 (MP) 44; A.I.R. 1985 (Punjab and Hariana) 181; A.I.R. 1952 (Orissa) (FB)’d 120; A.LR. 1962 Patna 403; AIR. 1962 (AP)72; A.I.R. 1965 (CaI)5l; 37 DLR (HCD) 296; PLD 1977 (Lahore) 418— Cited. The Code of Civil Procedure, Order 21, Rule 42 Petitioners filed the aforesaid writ petition and obtained rule Nisi calling upon the respondents to show cause why the order dated 6.7.2008 attaching the property of the petitioners by the Artha Rin Adalat and the proceeding of the execution proceeding in Artha Rin Execution Case No. 471 of 2008 should not be declared without lawful authority on the following averments. S.Co. Power Plant Ltd Vs. Government of Bangladesh (Md. Joynul Abedin J) (Civil) 7 ADC 299 Order XXI Rule 58 read with Order XXXVIII Rule 8 Attachment before judgment — Question of re-attachment after the decree is passed — As the application for attachment was filed before the decree was passed, there is no reason to hold that it is not maintainable aiter the decree was passed — An attachment before judgment cannot come to an end until it is set aside or the decree is satisfied. Pubali Bank Limited Vs. Mohammad Miam and others, 7BLD (HCD) 41 Ref. AIR. l937(Patna) 245. Order XXI Rules 58, 59, 60 and 61 Investigation of claims and, objections as to attachment property — Question of claim made by the garnishee before the executing Court — The Court in respect of such claims has to ask the parties to adduce evidence and be satisfied that the garishee was not possessing the property on account of the judgment-debtor. Bangladesh Shipping Corporation Vs. Rafique Ahmed and another, 8BLD (HCD) 164 Ref 3BLD (AD)310: 15 Indian Appeals 123: I.L.R. 15 Cal 521 (P.C.)— Cited. Order XXI Rule 58 Investigation of claims and objections to attachment of attached property -- Objection application before the executing Court being without jurisdiction is not maintainable. It is only the High Court Division. namely, the winding up Court that has exclusive jurisdiction in this matter though under the provisions of the Code of Civil Procedure as under Order XXI rule 58 the objection or the claim need be agitated and decided by the Executing Court—It being an alternative remedy only the Court below rightly rejected the application under Order XXI Rule 58 of the Code of Civil Procedure as being without jurisdiction Md. Ba1ui Ghani Vs. The Pioneer Bank Ltd. Cornilla (in flquidation). 1OBLD (HCD) 354 Ref. 1964 PLD at page 741 (Dhaka) J6DLR 656 — Cited. Order XXI, rule 83(3) It is admitted fact that the property in question has been mortgaged to the Bank. Sub- rule (3) of rule 83 of Order XXI of the Code stands as a legal bar to the private sale of the mortgaged property. 73 DLR 196 Order XXI Rules 85 and 86 Whether the Court can extend time for depositing balance of purchase money sold in auction beyond statutory period—A Court has no jurisdiction to extend period of 15 days fixed for depositing purchase money of a property sold in auction — The mandatory provision of Order XXI Rule 86 requires the Court to resell the property in case there is a failure to deposit the entire balance of the purchase money within 15 days which clearly indicates that the Court shall have no jurisdiction to extend the period — Court can extend time only when time is fixed by it for doing any act but not when time is fixed by-the statute — If the Court is allowed to have such jurisdiction to extend the time limit fixed by the statute then the statute will be defeated — An auction purchase automatically stands cancelled and the purchaser loses all his claims to auctioned property because of default in depositing the purchase money within the prescribed time. Code of Civil Procedure, 1908 (V of 1908), S. 148. Jamsheduddin Bhuiyaii Vs. Anwara Begum, 6BLD (HCD) 112 Order XXI, rule 90 The respondent No.1 Arab Bangladesh Bank Limited, as plaintiff, instituted Title Suit No.134 of 1995 before the Artha Rin Adalat No.2, Dhaka against the defendant Nos. 1 to 5 for realization of outstanding loan. That suit was subsequently renumbered as Title Suit No. 143 of 1998. The suit was ultimately decreed ex-parte vide judgment and de- cree dated 25.11.1998. Since the judgment debtor failed to pay the decretal amount within the prescribed time the decree holder bank put that decree into execution in Title Execution Case No.99 of 2000. Mrs. Jahanara Ahmed vs. Arab Bangladesh Bank Ltd (Nazmun Ara Sultana J) (Civil) 9 ADC185 Order XXI Rule 90 read with sections 38, 42, 47, 151 C.P.C. Property attached by the Company Judge — District Judge held auction on the direction of the Company Judge — District Judge is not competent to question the attachment and to set aside the auction sale. The attachment -was made under orders of the Company Court and the sale was also held in pursuance of the direction of the Company Court — Under section 61 of the Banking - Companies Ordinance, 1961 the Company Court has exclusive jurisdiction to decide any claim by or against a Banking Company — Section 63 of the Ordinance empowers the - Court to entertain an-application even after the statutory period of limitation. The executing Court was required to proceed taking the decree as a valid one and capable of execution — It was not open to the executing Court to decide whether the decree was a valid one or not — If there was a claim on the attachment property by any one, it is for the Court to investigate and decide the issue — The District Judge illegally questioned the attachment of the property by the High Court Division and acted beyond his jurisdiction ii setting aside the auction sale. In re Kuinud Ranjan Sarker and others; 1BLD(HCD)251 Ref. I BLD96 — Cited. Order XXI rule 99 Allowing the appeal granting temporary injunction reversing those dated 08.03.1990 passed by the Senior Assis- tant Judge, Sadar, Sylhet in Title Suit No.241 of 1989 refusing plaintiff's prayer for temporary injunction. Joirun- nessa vs. Abdul Matalib (Mohammad. Fazlul Karim J) (Civil) 8 ADC 302 Order 21 Rule 97, 98 and 99 The High Court Division rejecting an application for vacating the order of stay passed on 25.08.2005 and the order staying the proceeding of the execution case on 08.04.2006 which was extended lastly on 08.05.2006 by recalled and va- cated and directed the executing Court to proceed with the execution case in accordance with law. Jahanara Begum vs. Badura Begum (Mohammad Fazlul Karim J) (Civil) 6 ADC 197 Order XXI, Rules 89, 90 and 91- The judgment-debtor claims that the mortgaged property has been sold at a low price but he has not filed any application under Order 21 rule 90 of the Code of civil procedure which is the only forum to dispose of the said dispute. Thereafter the judgment-debtor filed the writ petition on 13th July, 2008. The High Court Division without issuing any rule made the impugned judgment on the basis of the oral submission made by the learned Counsel for the judgment-debtor that the judgment debtor was agreeable to pay the decreetal amount with interest. The judgment-debtor did not file any such application in the executing Court for payment of the decreetal amount nor did he approach the decree-holder to pay the decreetal amount by installments or to resolve the dispute by way of amicable settlement. An amicable settlement for payment of outstanding dues under the Ain of 2003 can be effected in three stages of a proceedings; the first stage is provided in sections 21 and 22 which can be done at the pretrial stage and the procedure is provided in section 24; the second stage is under section 38 after passing a decree and during the pendency of the execution proceedings; and the last stage is under section 45, which enjoins a borrower or any other defaulter or a judgment-debtor to settle up the dispute at any stage of the proceedings. The judgment-debtor did not avail any of the privileges provided in the Ain, 2003. A privilege is a special right reserved to an individual person or a limited class of persons, bodies or institutions. But this privilege is lost once they infringe it or abandon it voluntarily. Rules 89, 90 and 91 of Order 21 of the Code of Civil Procedure for setting aside a sale, those provisions of the Code are applicable in execution proceedings. Rule 90 provides for setting aside the sale on the ground of irregularity or fraud. If the act or omission complained of amounts to understatement of value of property calculated to mislead the bidder or the sale at a serious under value or where the contrary to the value of property given in sale proclamation, the Court wrongly mention higher value grounds on are which a sale may be vitiated by gross irregularities. ... Farid Uddin Mahmud VS Md. Saidur Rahman, [9 LM (AD) 247] Order XXI, Rule 90- Auction sale- The impugned judgment and order affirming the order of the executing Court and the Appellate Court is set aside. The application filed by the judgment-debtor, the predecessor-in-interest of the appellants under Order XXI, rule 90 of the Code is allowed and the auction sale is set aside. Since the auction purchaser, respondent No.2 has been in possession of the auction sold property initially as a fvovwUqv and then as the so-called auction purchaser and as submitted by Mr Alam, respondent No.2 has not paid any rent for all these period, he needs not be paid any compensation or any solatium over the auction money deposited by him in Court. However, he is entitled to get back the money deposited by him as the auction purchaser. We direct the executing Court to hold fresh auction of the mortgaged property in due compliance with the provisions of law. ...Sardar Md Abdur Rahman =VS= Janata Bank Dhaka, [7 LM (AD) 318] Order XXI, Rules 90 and 91- The petitioners did not deposit security equivalent to 25% of the decretal amount, their application was incompetent- The mortgaged property was sold in auction for the purpose of realization of the decretal amount. At this stage, the petitioners herein on 11.02.2010 filed an application under Order XXI, rules 90 and 91 of the Code and section 32 of the Ain, 2003 claiming the mortgaged property as their own and also asserting their possession therein. As no security equivalent to 25% of the decretal amount was deposited along with application, the Artha Rin Adalat rejected the same by its order dated 16.02.2010. Against this order, the petitioners filed the writ petition and obtained the Rule. It appears that the learned Judges discharged the Rule on the findings, inter alia, that as the mortgaged property was sold in auction long before the filing of the application by the petitioners under section 32 of the Ain, 2003 and the sale certificate was issued long before the issuance of the Rule on 05.05.2002, the auction sale of the mortgaged property was thus made absolute before issuance of the Rule. So in the circumstances, there was no scope of giving any opportunity to the petitioners to raise any claim in respect of the mortgaged property in the execution case in question. It further appears that the mortgaged property was sold in auction on 19.01.2010, whereas the application under section 32 of the Ain, 2003 was filed by the petitioners on 11.02.2010. The High Court Division took notice of the fact that the sale certificate of the auction sale was issued on 21.03.2010 and registered was on 22.03.2010, whereas the Rule in the writ petition was issued on 05.05.2010 We endorse the view of the High Court Division that "if the writ petitioner (sic, it would be petitioners) actually is the owner of the mortgaged property in question he can protect his right and title in that property by filing proper suit in a proper forum." The petition is dismissed. ...Mohammad Gias Uddin Chowdhury =VS= Ministry of Law, Justice & Parl. Afrs., BD, [8 LM (AD) 322] Order XXI Rules 99 and 100 read with section 151 3rd party — any locus standi? Dispossession by decree — holder— Whether Court’s inherent power can be invoked h a 3rd Party against apprehension of such dispossession — It is the duty of the executing Court to give delivery of possession of the decreetal property to the decree-holder The Court may pass necessary orders if it finds that the ascertainment of the suit property by local investigation is necessary in order to see that the decree of the Court is correctly executed —- It cannot pass such order on an application of a 3rd party who has no locus standi in law at this stage before being-evicted. Saleh Ahined Vs. Md. Zakaria, 5BLD (HCD) 329 Ref. PLD 1959 Lah 511; 25 DLR 5: 29 DLR (SC) l85 —Cited. Order XXI Rules 101 and 103 Proceeding for rest or at ion of possession -— When such proceeding is incompetent and question of’ inspection relating to possession unwarranted — The result of the proceeding relating to restoration possession claimed by one dispossessed in execution of a decree is subject to the result of the suit contemplated by the rule In the instant case the judgment of the suit has already been pronounced — The petitioner ha’ ing filed a petition for local inspection as to possession of the parties which having been already decided in the regular title suit and the Court having arrived at the conclusion that the petitioners were not in possession, the inspection asked for is unwarranted. Nasim Au and another Vs. Safina Bibi. 8BLD (HCD) 493 — Cited Order XXI, Rule 103- Third party to file a suit to establish his right- The High Court Division has totally overlooked the applicability of Order 21 rule 103 of Code of Civil Procedure so far as it relates to the right of a third party in the property sold. Sub-section (1) of section 32 of the Ain does not debar the applicability of the provisions of the Code of Civil Procedure, if a third party makes an application for setting aside the sale. He can file objection against the sale in accordance with the provisions of the Code, but the scope of investigation being limited, we find no cogent ground to debar a third party to file a suit to establish his right or title if his right is fringed by reason of sale in view of order 21 rule 103. We hold the view that a suit for establishment of right, title and interest in respect of the mortgaged property by a third party is maintainable because there is no specific bar either expressly or impliedly in the Ain to file such suit. Sekandar (Md.) =VS= Janata Bank Ltd., [3 LM (AD) 448] Order XXII RuIe 1 and 10 When not necessary? Plaintiff suing to establish personal right to an office entitling him to possession of property ——- Right to sue does not survive on hi death — No substitution is necessary. Md. Matlabur Rahman and others Vs. Madan Miah Chowdhury, IBLL) (AD) 252 Ref. AIR. 1950 Pat 184; 42 C.W. 1018— Cited. Order XXII Rule 3 Abatement Suit decreed — Appeal 5f defendant abates against heirs of some deceased plaintiff’s for non—substitution — S Appeal as a whole does not abate when there no possibility of conflicting decrees. Bangladesh Vs. Wazuddin Hou’lader and others, 2BLD (AD) 179 Order XXII Rules 3, 4 and 8 read with section 47 C.P.C. After execution no objection enter tamable— The Executing Court become functus—officio after execution of the decree The question whether a decree is void ab-initio having been passed against a dead person may be raised in a proceeding in execution since it is a question relating to execution of the decree— But this question cannot be raised after the decree has been executed After execution of’ the decree section 47 C.P.C. will not apply -— There will then be no bar in filing of a sui for declaration of nullity of the decree on the ground of its having been passed against dead person. Abdul Haki,n Vs. Goleda ih’guiit and another, 4BLD(AD)55 Ref. 18DLR535: AIR. 924 (PC) l9s: A.I.R.l928Mad 914; A;1.R.l923 Mad 2237 AIR. l93l Pat 57; AIR. 1936 Cal 540: I B.C.R. 236; 20 DLR 1050: 17 I.L.R. All 78:5 C.W.N. 627; AIR. 1935 al 645; AI.R 1929 Lah 121; AIR. 1939 Lah 405: 12 DLR631 —Cited. Order XXII Rule 3 read with section 151 C.P.C. Dismissal of suit for default after death of Plaintiff: Whether the Court can dismiss a suit for default for non-appearance of the plaintiff after having knowledge about death of the sole plaintiff — Dismissal order is without jurisdiction — Court’s duty is to rectify it upon being pointed out — Court is to record the abatement of the suit over the fact of the death of the sole plaintiff is brought to the notice 1 the Court, the Court has no power and jurisdiction to lix the suit for peremptory hearing— The order of dismissal for default being holly without jurisdiction the Court should ate such order — The heirs and successors to the deceased plaintiff had time up to 90 days form the date of plaintiff’s death to substitute themselves as plaintiffs — Rules or Orders of Code dealing with the case of non-appeare of a suitor were inapplicable t a situation often the suitor is dead — Quite apart from section 1 5 1 C.P.C. the Court possesses an inherent power to rectify its mistake committed inadvertently. Kamal Anwar and others Vs. Muhammad Kabir Khan, 5BLD (’HCD) 157- Ref. I 1913) C.L.J.(PC)9 Cited. Order XXII Rules 3 and 4 Substitution of the heirs of a deceased Party in a suit or proceeding — Whether substitution allowed at one stage of the suit or proceeding will suffice or Fresh substitution is to be made in the main suit or proceeding Substitution of heirs of a party Suit in a revision arising from a miscellaneous case is a substitution for all stages of the proceeding or suit? When the 1rs of the deceased party were already substituted in the revision case further application for bringing the said heirs by way situation was superfluous and of no effect Md. Matiur Rahinan Vs. Lalbanu &bi and others, 6BLD(HCD)432 Ref. 1LR45 Cal(P.C.)94 — Cited. Order XXII Rules 3 and II Substitution whether executrix under a will made by the deceased appellant can substitute in the appeal before probate of the will is obtained? —— In view of the provision of substitution and definition of legal repetitive in the Code of Civil Procedure the executrix of the will of the deceased ant is entitled to prosecute the appeal as substituted appellant in place of deceased appellant before she obtains probate of the will. Subhira Nandi Majumder Vs. official Liquidator, Mahaluxini Bank Ltd. and others, 7BLD (HCD) 244 Ref. AIR. 1916 (PC) 202: AIR. 1962 (SC) 1471 — Cited. Order XXII Rule 4 Abatement—A proceeding for grant of letters of administration on the basis of a will does not abate with the death of a person who appeared in the proceeding on general citation. Succession Act, 1925 (XXXIX of 1925). Ss. 276 and 283. Jatish Chandra Saha and others Vs. Biswanath Saha and others, JBLD (AD) 216. Order XXII Rules 3, 4 and 10 Abatement — A party dies after passing of the preliminary decree Suit not to abate for failure to substitute the heirs of the deceased party within the statutory period — Rule 10 of Order XXII governs the case. Once preliminary decree is passed by a Court it has no jurisdiction either to pass tin order dismissing the suit Or to record that the suit has abated as the heirs of one or more of the original and necessary parties had not been substituted within the statutory period —-— after the passing of the preliminary decree right to sue’ in the plaintiff in respect of his original cause of action is settled and the suit cannot abate in terms of Rules 3 and 4 of Order XXII— Rules 3 and 4 of Order XXII are not, therefore. Applicable to cases of the kind under consideration but Rule 10 governs such cases. Fakram Mai Vs. Ayechuddin and others, IBLD(1-ICD)233 Ref. A.I.R. 1924 (PC)198; AIR. I 928(Mad)9l 4; (1883)48 L.T.907: A.I.R. 1929 (Nag) 142:A.I.R. 1927 (Oudh) 156: AIR. I936(Cal)540; AIR. 1940 (Bom)3l 8: A.1.R.’ l948(Cal) 363; A.I.R. 1952 (Cal). 579; AIR. l93() (All) 779; AIR. 1933 (Cal )696: A.I.R. 193 l(All) 490—Cited. Orde XXII, rule 3 The petitioners filed an application for recording an order of abatement of the suit on the ground that Md. Feroj Alam died long ago. The trial Court rejected their application on the reasoning that it was made for purpose of delaying the disposal of the suit. The petitioners, thereupon, unsuccessfully moved a re- vision petition in the High Court Divi- sion and then this petition for leave. Manjur Alam vs. Shah Alam Chowdhury (S.K. Sinha J) (Civil) 9 ADC 773 Order XXII Rule 4 Substitution of legal representatives — Whether substitution of the legal representative of the deceased respondent is necessary when such legal representative is already on record?— It is well settled that when a party respondent in appeal dies and one of his legal representatives is already on record in another capacity the appeal does not abate even though no application is made to bring him on record. People’s Republic of Bangladesh. represented by the Deputy Coinmissioner, Faridpur Vs. Abul Kaiser Chowdhury and others, SBLD(AD) 273 Ref. A.l.R. 1971 (SC) 742: 8 DLR 349: 7 DLR 376 Cited. Order XXII Rule 9 Application for substitution after statutory period Application for substitution of the heirs of a deceased party to a suit or proceeding filed after the period of limitation whether can he treated as an application for substitution after setting aside abatement — An application for substitution of the legal heirs of the deceased party to a proceeding filed after the period of limitation without making any prayer for setting aside abatement is to he treated as an application for substitution of the heirs of deceased party concerned on setting aside abatement. Md. Matiur Rahman Vs. Lal Banu Bibi and others, 6BLD (HCD) 432 Ref. A.I.R. 1962 (Orissa) 94—Cited. Order XXII Rule 9(2)(3) Effect of abatement — When an abatement of a suit takes place owing to non— substitution of heirs, the defendants acquire a vested right not to be proceeded against in the suit The effect of abatement can be overcome only by satisfying the Court as to the cause preventing the plaintiff from continuing the suit which he is under a legal obligation to do when the cause is under challenge — It is never in the discretion of the Court to allow the application for substitution either in the interest of justice or of avoiding multiplicity of proceedings — The principle relating to addition of party cannot be applied in the facts and circumstances of the present case—Code of’ Civil Procedure. 1908 (V of 1908) Or I.R. 10. Bhupati Biswas and others Vs. Niranjan Biswas and others, 9BLD (HCD) 355 Ref. 22DLR 500: AiR. 1940 (PC) 215 — Cited. Order XXII Rule 9 Addition of party after abatement— Addition after abatement was recorded for non—substitution Addition of party If for any reason the heirs of a deceased cannot 1 substituted within time the Court may allow such heirs to be added as parties in the suit in the interest of justice—Code of Civil Procedure. 1908 (V of 1908). Order I. Rule 10. Ujjal Hossain (Minor) and others Vs. Firoja Khatun and others, 9BLL) (HCD) 407 Ref. 22 DLR 500 —— Cited. Order XXII Rule 10 Purchase during pendency of suit— The Court below found that on the basis of the transfer deeds from the- proforma defendants the plaintiffs of the present suit have no locus standi to bring the suit — Admittedly the plaintiffs purchased the suit property during the pendency of the mortgage suit and the having not got themselves impleaded in that suit as assignees of their vendor defendants under the provisions of Order XXII Rule 10 of the Code of Civil Procedure and contested the claim of defendant No. I, who was plaintiff in the mortgage suit,. -the impugned decree is binding upon the plaintiff-appellants — As such the plaintiff—appellants cannot challenge the impugned decree. Haji Md. Ishaque and others Vs. Rupali Bank, 1IBLD(HCD) 489 Order XXIII Rule 1 Withdrawal of suit in absence of formal defect In the absence of formal defect whether a suit can be withdrawn? Whether omission Ii make proper prayer in the plaint amounts h formal defect —— Plaintiff having confined his claim within the limited scope of injunction only cannot be allowed to withdraw the suit with permission to sue afresh on ground formal defect because this will not affect an suit of the petitioner or any claim or action ii that claim is otherwise not barred by law. Tarani Bhushan Sainaddar Vs. Chitta Ranjait Nag and others, 5 BLD (HCD)128 Order XXIII Rule 1(2) Permission to withdraw a suit Circumstances in which application for such permission is rejected the learned Mun4 observed in his order that it was not specifically stated as to what the formal defects were and that the defects in the schedule and as to parties could be amended by filing a petition for amendment of the plaint It was also noticed that the suit was old one and no steps were taken to amend the plaint — It is clear that the discretion vested in the Court has been properly exercised. Md. Badruddin Moral and others Vs. Santosh Kumar Sen and others, 8RLD (AD)) 121 Order XXIII Rule 1(4) read with Order I Rule 10 Transposition of a party — Transposition upon withdrawal from a suit — Position of a co—plaintiff wanting to withdraw A co—plaintiff, if he has a separate cause of action and want to withdraw with liberty to sue afresh, consent of other co-plaintiffs is necessary — — In the case of absence of such liberty no consent is required but the withdrawing plaintiff needs to be transposed as a proforma— defendant in order to avoid the suit being dismissed for defect of parties. Suresh Majumder and others Vs. Government of Bangladesh and others, 9RLD (HCD) 180 Ref. AIR. 1943 (Cal)427 -— Cited. The Code of Civil Procedure, Order 23, Rule 1(2) Seeking declaration of title in the suit property. withdrawal of the suit with a permission to sue afresh Grameen Telecom vs. Dr. Rowshan Alam(S.K. Sinha J) (Civil) 8 ADC 43 Order XXIII Rule 1 Withdrawal of suit — Ultimate effect of withdrawal — It means doing away with the entire proceed ng of the suit and the appeal if there had not been any such proceedings at all. Muhammad Abdul Quddus Vs Mohammad Mustafa Hossain,12 BLD(AD)131 Order XXIII, rule 1(3)-If the provisions of Order XXIII, rule 1(3) of the Code read with section 52 of the Transfer of Property Act be considered in juxtaposition with facts and circumstances of the case, our view is that it squarely attracts Order VII, rule 11(d) of the Code. Shuvash Chandra Dhar va Milon Chandra Banik @Dhar (Civil) 75 DLR (AD) 288 Order XXIII Rule 3 Compromises in revision Parties can affect compromise in revision. A revisional application is a prescribed niode 01 step in the Code either in prosecution or in defence of an action and as such the procedure provided for in the Code shall also apply in civil revision including the provision of compromise on the strength of section 141 of the Code provided that the revisional application arises out of a suit, appeal or ordinal miscellaneous case or appeal there from to s which the procedure provided in the Code would apply The Court for ends of justice may record compromise under section 151 of the Code where the provisional application having not arisen out of an original miscellaneous proceeding the provision of Order XXIII Rule 3 of the Code does not apply. Serajul Mostafa Vs. Au Ahmed Sikder and others. 1BLD (HCD)) 80 Ref. AIR. 1949(Lah) 186; 18C.L.J. 14L AIR. I 949(Mad) 433 Cited. Order XXIII Rule 3 Compromise decree containing matters extraneous to suit— Under Order XXIII Rule 3 of C.P.C. a compromise decree may contain matters extraneous to the subject- matter of the suit hut the compromise decree can only be enforced by way of execution in so far as it relates to the subject matter of the suit and nothing more. Pukul Molla Vs. Md. Akkel Au MondaI and others, 2BLD (HCD)42 Order XXIII, Rule 3- Compromise between the parties- The learned judges, just cannot act or be tuned on the submission of the learned Advocate of a party or fanciful wish of a party. Even in case of a compromise by the parties on the basis of joint application, the learned judges must see whether the terms of compromise entered into between the parties are lawful or not as provided in Order XXIII, rule 3 of the Code of Civil Procedure (the Code). Engineers Ltd. & others ....National VS= Jubak Housing & others, [1 LM (AD) 308] Order XXIII Rule 3 Compromise decree passed in the absence of a party A compromise decree passed in the absence of a party and without his knowledge, even though the learned Munsif assumed jurisdiction competently, cannot be allowed to stand, when the prejudice caused to the applcant is patent. Mst. Rahela Khatun and others VS. Seraj Sarkar and at, other, 4BLD (HCL) 24 Order XXIII Rule 3 Compromise to be recorded—Decree only voidable and not void. Compromise petition if found lawful must be recorded and the decree passed according to its terms — Compromise induced by fraudulent conduct between parties is voidable and not void --- compromise vitiated fraud can he set aside by a decree in a regular suit instituted for that purpose. Amudi Mamud Vs. Elahi Baksha Sarker and others, 6BLD (HCD) 67 Order XXIII Rule 3 Compromise of suit — its validity Question of its validity — when the compromise is found lawful there would be no option left to the. Court but to pass a decree in terms of compromise. Abdul khaleque and others Vs. Siddiqur Rahman and others, 8BLD (HCD) 9 Ref. 1923 (Oudh) 252; 32 (Cal) 561: 1955 All l87(l).B.); 1933 Born..205—Ciied. Order XXIII Rules 3 Right of appeal — Aggrieved partys right to take appeal from order of compromise — The aggrieved party can take an appeal from such an order and a decree drawn from the order will be no bar to his right of appeal. Abdul khaleque and otheks Vs. Siddiqur Rahman and others, 98W (HCD) 168 Ref. 1957 Pat..l43; 1933 Cal 94; 1936 Mad.358: l936Lah. 766; 1955 All 187: 1926 Cal. 412: 1933 Bom 205: 1929 Pat. 3l8: 1929 Cal 689 (RB.): 1944 Bom 239 (DB)— Cited. Code of Civil Procedure [V of 19081 Order 23 Rule 1-Whether, before passing the order allowing the application to withdraw the suit with permission to sue afresh, it was necessary to record the statement of the plaintiff-respondent that there was formal defect in the plaint for which sho wanted to withdraw the suit. The Appellate Division observed that in these two sub-rules, nothing has been said about the necessity of recording the statement of the plaintiff before according permission for withdrawing the suit eithe with permission to sue afresh or to withdraw a suit without permission to suc afresh. Only thing which has been provided in sub-rule (2) of rule 1 of Order XXIII is ma that in case of withdrawal of a suit with permission to sue afresh, the Court has to be satisfied that a suit must fail by reason of formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. The satisfaction of the Court as spoken about in sub-rule (2) is relatable only to the question, there was some formal defect in framing of the suit for which the suit shall fail or that there are other sufficient grounds allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of claim, so the question of recording the statement of the plaintiff to the above effect as found by the learned District Judge and the High Court Division would not arise at all. Md. Abdur Rahman Pramanik and others Vs. Most. Alefu Bewa and others (Civil) 15 ALR (AD) 211- 221 Order XXIII Rule 3 Order of compromise — Question of its validity — If a party to compromise denies having entered into the compromise the Court will have to come to a finding as to whether there had not been a compromise effected between the parties and to decide if the Compromise was lawful. Abdul khaleque and others Vs. Siddiqur Rahman and others 9BLD (HCD) 168 Ref. AIR. 1923 (Oudh) 252: 32 Cal 561: 1955 All 187 (D.B.)-—Cited. Order XXIII Rule 3 Compromise— Under the provisions of Order XXIII Rule 3 of the Code of Civil Procedure if the defendant can satisfy th Court that the claim in the suit has been adjusted or satisfied wholly or in part by any lawful agreement or compromise then the Court shall pass a decree. in terms of such compromise. Haji Md. Ishaqae and others Vs. Rupali Bank, 11 BLD (HCL))489 Code of Civil Procedure (V of 1908) Order XXIII, rule 13 Since there is no permission to sue afresh, the suit filed by the plaintiffs claiming through the heirs of Mohammad Miah is hit by Order XXIII, rule 3 of the Code. The suit is not maintainable as filing of the subsequent suit, i.e. the instant suit on the self same cause of action, by the plaintiffs, is barred by law since the plaintiffs could not produce any paper that he took permission to sue afresh at the time of withdrawal of the earlier suit. ......(15) [74 DLR (AD) 74] Code of Civil Procedure [V of 1908] Order 23 Rule 4-The learned Advocate who filed the vokalatnama on behalf of the plaintiff-respondent was quite competent to file the application for withdrawal of the suit with permission to sue afresh and there was no necessity on the part of the plaintiff- respondent to sign the same. The Appellate Division observed that a reading of sub-rules (1) and (2) of rule 4 shows that in order to act by an Advocate on behalf of a person a vokalatnama duly signed by him has to be filed and in the instant case as stated earlier the plaintiff- respondent did not deny the fact that she made appearance in Partition Appeal No. 13 of 1964 through the learned Advocate who filed the application for withdrawal of the suit and in Order XXIII, sub-rules (1) and (2) of rule 1, it has not been stated that the application for withdrawal of a suit either simpliciter or with permission to sue afresh has to be filed by the plaintiff himself(s). So, the learned Advocate who filed the vokalatnama on behalf of the plaintiff-respondent was quite competent to file the application for withdrawal of the suit with permission to sue afresh and there was no necessity on the part of the plaintiff-respondent to sign the same and the learned District Judge rightly acted on it. Md. Abdur Rahman Pramanik and others -Vs. Most. Alefa Bewa and others (Civil) 15 ALR (AD) 211-221 Order XXV Rule I Security for costs from plaintiff- When can be ordered for? — Unless the Court arrives at findings that the plaintiff is its outside Bangladesh and, he does not pds.1ess sufficient immovable property. No order can be passed directing the plaintiff for famishing security for costs. Ratan Kirshna Ghose and others Vs. Rafique Mia and others, 7BLD(HCD) 418. Sections 1-10 Code deals with procedural matter and not substantive rights. The procedural laws are grounded on principles of natural justice. Abdul vs Sultan 35 DLR (AD) 51:1983 BLD (AD)129. The words "rights of the parties" in the definition of the decree has reference to "rights to relief" So every order of the trial Court which grants or refuses a relief is a decree 7 PLR (Lah) 671. Section 2(2) and 2(9), 114, 117, 151 It is clear that the arbitrator is a civil court for a limited purpose. Md. Atiqullah vs Bangladesh (M.M. Ruhul Amin J) (Civil) 1 ADC 319 Plaint rejected since court-fees remained unpaid is a decree. Syeeda vs Syed 19 DLR 268. An order rejecting a plaint on the ground of lack of jurisdiction is a decree. Bashir vs Gamir.2 BLD 201. But the suit having been found maintainable, the plaint was not rejected by the order is not a decree. Ayez vs Abdul.42 DLR 154. Order of abatement being in substance an order of rejection of plaint is a decree. Madbar vs Province 17 DLR 963; Radharman vs Bangladesh.27 DLR 40. Order as defined in section 2 (14) generally has the attributes of a decree, but as it arises out of a proceeding not being a suit, it does not amount to decree. Shariatullah vs Ashrafun 28 DLR(AD) 91. Formal expression of an adjudication conclusively determining the rights of the parties in a preemption case under section 6 of SA&T Act is not a decree, but an order a defined in section 2(14). Abdul vs Abdul, 33 DLR 341. Order passed in a preemption proceeding got all the trappings of a decree passed in a suit, but it is exactly not a decree. Ismail vs Rahima 8 BLC 144. Provision of section 36 of the Code will apply in the execution of such an order Shariatullah vs Ashrafun 28 DLR (SC) 91. Order of dismissal of a memorandum of appeal as time-barred determines finally the rights of the parties with regard to matter in dispute and as such it is a decree. Abdul vs Jobeda. 44 DLR (AD) 37; but dismissal order for non-payment of process fee and non-filing of vokalatnama does not amount to a decree Khalil vs Binoy. 14 DLR 721; so also a suit or an appeal dismissed for non-prosecution does not amount to a decree. Abdur vs Sree 27 DER 73; or dismissal order for non-payment of condition precedent (CP) cost does not amount to a decree Kazi vs ADC. 3 BLC 47; or order of dismissal of a suit cannot be called a judgment or an order (similiter). Sonali Bank vs Al-Akram. 46 DLR 671. Whenever executing Court finds any difficulty to understand the decree it can look into the judgment. It is not for fun that a decree is passed. Court always passes a decree to give relief. Abdul vs Mati. 47 DLR 240. It appears from section 4 that the provision in the special law is not affected by the provisions in the Code and that the provisions in the special law must prevail in the absence of any provision to the contrary. Jalal vs Matiar. 41 DLR 77. The Chittagong Hill Tracts Regulation which is a special law,the procedure in CPC will not be applicable. BFIDC vs Shaikh. 53 DLR 488. Jurisdiction of Civil Court is impliedly barred by creating special forum, that is, the Election Tribunal, to impeach the election. Mostafa vs BD 41 DLR 197. The jurisdiction of a Court means the extent of authority of a Court to administer justice prescribed with reference to the subject matter, pecuniary value and local limits.Joysna vs Sudhangshu. 11 BLC 98; but as there is no special provisions in the Union Parishad Ordinance,1983 for the disposal of the election appeals by the District Judge, the procedure prescribed in the CPC related to disposal of appeals is to be followed.Habib vs Shah.1985 BCR 23. In a suit for future mesne profits or for accounts, the pecuniary jurisdiction is determined by the amount tentatively claimed by the plaintiff and such jurisdiction is not ousted if it is found that the plaintiff is entitled to an amount exceeding the court's jurisdiction, subject to payment of excess court fee. Bidyadhar vs Manindra 29 CWN 869: ILR 53 Cal 14 FB; Kalyandas vs Gangabai.AIR 1961 MP 67. Civil Courts have jurisdiction to try all suits of civil nature excepting those the trial of which is expressly or impliedly barred. Abdur vs Abdul 17 DLR (SC) 515, Nur vs Mainuddin. 39 DLR (AD)1: 1986 BLD (AD) 342. The jurisdiction of a Court means the extent of authority of a Court to administer justice prescribed with reference to the subject matter, pecuniary value and local limits. Joysna vs Sudhangshu 11 BLC 98; but the suit falling within the exclusive jurisdiction of the Small Causes Courts Judge but erroneously tried by a Court other than the SCC Judge suffers from no illegality. Wahida vs Miran. 43 DLR 115. Impugned letters having been a nullity and coram non judice civil Court got the jurisdiction to try the suit. RAJUK vs Md 10 BLC 580. A plaintiff must have locus standi as well as legal right against a defendant to invoke civil court's juris-diction. Shafi vs Pubali Bank. 2002 BLD 423; 54 DLR 310. Jurisdiction of the Courts is conferred by law and never depends upon the consent of the parties. Rekeya vs Md 50 DLR 271. The aggrieved person must exhaust his remedies before invoking the aid of the civil Court. Shaikh vs Md 55 DLR 211. A suit will be impliedly barred where a right is created by a special law and special forum is provided in it. Jalal vs Mati.41 DLR 77: BLD 446; Mostafa vs B 41 DLR 197; and a plea that such law does not provide for effective or adequate remedy would not give jurisdiction to entertain a suit. Mostafa vs B. 41 DLR 197;1989 BLD 326; but even then civil court shall have jurisdiction to entertain a suit to see whether the action is in conformity with the law in question. Soleman vs Administrator. 45 DLR 727; Government vs Fazle.1989 BLD 97; 40 DLR 554 or whether a statutory tribunal has acted in conformity with the fundamental principles of judicial procedure. Shahidullah vs Abdus. 49 DLR 248:1996 BLD 423:1 BLC 385; while civil courts shall have no jurisdiction when administrative authority or statutory tribunal vested with power to decide a matter on consideration of materials placed before it either accepts or rejects the materials even wrongly. Bangladesh vs Banarashi.45 DLR 669; Motiul vs DIT 43 DLR 407;Soleman vs Administrator. 45 DLR 727. Ouster of jurisdiction of a civil court is not to be readily inferred. Habib vs Election Commis-sion. 40 DLR 459; or cannot be taken away lightly. Hilly vs Akhtaruzzaman. 54 DLR 46; and even when there is no jurisdiction for a civil court to entertain a suit, it is for the court to decide such a question. Shamsuddin vs Shamsuzzaman. 22 DLR 655; Mati vs DIT. 43 DLR 407. When alter-native remedies are available it is open to the party to prefer any or more of his remedies. Nara-yanganjvs Pran. 52 DLR 90. The suit challenging the acceptance of nomination paper is impliedly barred as there is the remedy under section 26 of the Local Government (UP) Ordinance, 1983. Manir vs Bazlu. 1988 BLD 241; but on a limited compass the jurisdiction of civil court to try election dispute always remains. Habib vs Elec-tion Commissioner. 1988 BLD 473; 40 DLR 459. The question of jurisdiction being a mixed question of fact and law can be raised in a revision case even though not raised in the trial or appel-late Court and parties' consent cannot give court's jurisdiction, if it is otherwise barred. Wahida vs Miron.1991 BLD 79;43 DLR 115 It never depends upon the consent of the parties. Abdur vs Abdul. 50 DLR 271. Income tax officer assessing tax, while lacking jurisdiction, his order of taxation is completely void and a suit is not barred. Punjab vs Federation.8 DLR (FC) 26. Facts relating claim of trade union to enforce its right to contest election for bargaining agent having not brought the case within the definition of industrial dispute to confer jurisdiction on labour court, civil court has jurisdiction in the matter. K vs Registrar, 42 DLR 329. As proviso to section 25(i) of Employment of Labour (Standing Orders) Act, 1965 does not provide plaintiff any relief against termination of service, civil Court's jurisdiction is not barred. Rupali Bank vs Nazrul. 1 BLC(AD) 159. Suit building was included in the list published in the official Gazette in contravention of the Ordinance and as such the civil court has jurisdiction to try the suit. Zaher vs Bangladesh. 42 DLR 430. It is pendency of the previously instituted suit that constitutes bar to the trial of subsequent suit, the word “suit” includes an appeal, but it does not include an application for leave to appeal. Swami vs Siris. 5 DLR 175. The stay must be of the latter suit and not of the earlier suit between the same parties. Sachindra vs Royani. 7 DLR 198; Abdul vs Abdul. 44 DLR 601. A miscellaneous case under Order 9, rule 9 of the Code is not a continuation of the suit for the pendency of which an execution case can be stayed. Nuru vs Manir. 49 DLR 351. This section is applicable between two suits and not between a suit and a special proceeding under special law even though subject matter and parties. may be the same. Ahmad vs BSB. 42 DLR 140: but in appropriate circumstances the suit may be stayed and not the proceeding. Iftekhar vs Pubali Bank. 1998 BLD 642; 50 DLR 623; and so also a suit filed under general law may be stayed, but not the suit filed under special law. UC Bank vs Freshner 3 BLC 430. The matter in issue in the previously instituted suit and in the subsequent suit is the material consideration, not the relief sought for in the suits. Altafvs Abbas. 45 DLR 374. Court can not apply this section where point at issues are distinct and different. Salimullah vs Sheikh. 43 DLR 113 or even where there are some issues in common and others are different issues. Abdur vs Asrafun. 37 DLR 271; Mazhar vs Giridhari.51 DLR 149. This section is not applicable between the suits where although the parties are same,but the issues are not the same. Manzur vs Rema. 33 DLR 49. The subject matter of the subsequent suit must be covered by the previous suit and not vice-versa. Substantial identity is enough. Luxmi Bank vs Hari. AIR 1948 Nag 297. Essential test for application of section 10 is whether the decision in the earlier suit will operate as res-judicata in the suit instituted subsèquently. Farid vs Bar Council.1981 BCR 255; Shahabuddin vs BAU.3 BLC 49. Provision of section 10 is mandatory, but this provision has not taken away the court's inherent power under section 151 so as to stay the proceedings on the facts and circumstances of a given case to secure the ends of justice where section 10 is not applicable. Suraiya vs Alimullah. 24 DLR 133; Bashirullah vs Abdul. 21 DLR 183; Ayat vs Janata Bank. 40 DLR 56. By applying inherent power former suit can be stayed, but only ifit constitutes an abuse of process of Court. Ram vs Devidayal AIR 1954 Bom 176;Arifa vs Khaleque, 21 DLR (WP) 209. Section 10 does not bar consolidation of suits under inherent power. One suit by the husband for restitution of conjugal rights and the other by the wife for declaration that there is no such marital relationship between them were ordered to be tried together analogously. Halima vs Hanif 32 DLR (AD) 300. The object of consolidation is to avoid multiplicity of litigations between the same parties whenever the matter in issue is substantially or directly the same Rezaul vs Jahanara. 44 DLR 508:1991 BLD 228. Where common questions of disputed title are involved in two suits it is desirable the suits be tried simultaneously although the parties are not the same. Fazlu vs Kazi. 1997 BLD 188:1 BLC 411; or should be tried analogously when the parties are the same. Khaleda vs ISL. 53 DLR 161; Nurujaman vs Sajjad. 56 DLR 149; IS Ltd vs Khaleda.5 BLC (AD) 69. Section—2, Sub-section (ii), Order I Rule 10 and Order 22 Rule 4 (A) Order 22 Rule 4 (1) speaks about ‘legal representative as defined in subsection (11) of Section 2 C.P.C. A transferee of a property sold by a person is not his legal representative and as such he does not fall within the category of ‘legal representative’ as contemplated by sub-section (11) of Section 2 of the Code. Sub-rule (2) of Rule 10 of Order I C.P.C. empowers a Court at any stage of the proceeding to add in it any person whose presence before the Court may be considered necessary in order to enable it effectively and completely to adjudicate upon and settle all questions involved in the case. Although opposite party Nos 3 and 4 are not legal representatives of their vendor Balai Ch. Basak, still then they are necessary parties as being purchasers from Balai. Md. Abu Tayeb Mia Vs. Nakul Chandra Basak and others, 14 BLD (HCD) 306. Ref: Master Abdul Aziz Vs. Abani Mohan Mukherjee and another, 30 DLR(SC) 221; Syed Au Bhuyan Vs. Md. Jamshed Ali Kazi and another, PLD. 1957 (Dac.): Union of India Vs. Ram Chandra, AIR 964(SC)215; Sisor Kumar Tarafdar Vs. Manindra Kumar Biswas and another, 1958 Cal. 681 and National Bank of Pakistan Vs. Syed Muzammêl Hussain, P.L.D. 1965 Kar. 633—Cited. Section—2(2) Form of Decree in a suit for Specific Performance of Contract—The trial Court decreed the suit and directed the principal defendants and the subsequent transferees to execute and register the sale deed in favour of the plaintiffs. This decision was upheld in appeal. The High Court Division summarily rejected the petitioners’ application u/s 115 of C.P.C. The petitioners’ main contention is that the Courts below were wrong in directing the subsequent purchasers to execute the kabala in favour of the plaintiff, although they were not parties to the contract. The Appellate Division considered different aspects of the question and the trend of decisions of the superior Courts of the subcontinent and took the view that a direction for reconveyance to the plaintiffs by the subsequent purchasers alone could be a possible solution and that would have the effect of vesting title to the property in the plaintiffs but it would be inequitable to compel the subsequent transferees to enter into terms and convenantsin the vendors’ agreement to the plaintiffs to which they would never have agreed had they been free agents. Moreover, if the original contract is varied b altering or omitting by terms of the contract the Court will be remaking the contract, a thing it has no power to do, because in that case it will no longer be specifically enforcing the original contract but a different one. The Appellate Division held that the proper form of decree in such a case will be to direct specific performance of the contract between the vendor and the plaintiff and, to direct the subsequent transferee to join in the conveyance so as to pass on title, which resides in him, to the plaintiff. Ezaher Meah and others Vs Mst. Shaher Banu and others, 17 BLD (AD) 80. Section—2(2) Decree Decree passed is not in terms of U.S. Dollars but in terms of Taka and the deposit must also be in terms of the decree, that is, in Taka. If the appellant had the intention to deposit it could have encashed the Dollars and then deposit the amount with the trial Court. So, deposit of the U.S. Dollars is not in accordance with the provision of the Artha Rin Adalat Ain. Habib Bank Limited Vs UAE Bangladesh International Company Limited and another, 18 BLD (HCD) 422. Ref: 1981 BLD(AD)95—Cited. Section—2(2) Decree—Jurisdiction of the Execution Court It is now well-settled that a decree for specific performance of a contract to sell the suit property is incidental to the document of sale and as such the executing Court has the jurisdiction to execute the decree by giving possession to the decree holder, although the decree is silent about delivery of possession. Md. Kafiluddin Vs Md. Sukur Ali Mia, 17 BLD (HCD) 147. Section—2(9)(14) Judgment and Order Judgment’ mean the statement given by the Judge of the grounds of a decree or order. Order’ means the formal expression of any decision of a civil court which is not a decree. Sirajul Islam Chowdhury Trawlers Ltd. Vs Sirajul Islam Chowdhury, 20 BLD (HCD) 347. Sections 3, 9 and 115-The tribunals are meant to deal with only specific class of cases. They do not and cannot exercise powers vested in a civil court for decision of civil disputes in general within the meaning of section 9 of the Code. Such tribunals cannot therefore be termed as Civil Courts within the meaning of sections 3, 9 and 115 of the Code. Rabiul Islam (Md) vs Asadul Haque (Md) (Civil) 71 DLR (AD) 386 Sections 3, 9 and 115(1)- Election Tribunal Election matter dispute- The Election Appellate Tribunals and Election Tribunals are not Court and they specially constituted as Tribunals for adjudication of the election disputes by an special statute, namely, the Local Government (Pourashava) Ain, 2009. The Tribunals are meant to deal with only specific class of cases. They do not and cannot exercise powers vested in a civil court for decision of civil disputes in general within the meaning of section 9 of the Code of Civil Procedure. Such Tribunals cannot therefore be termed as Civil Courts within the meaning of sections 3, 9 and 115 of the Code. Since the Election Appellate Tribunal is not a court, we are of the view that the High Court Division committed error of law in entertaining the revisional applications exercising its revisional, jurisdiction under section 115(1) of the Code of Civil Procedure. Both the petitions are disposed of. The judgment and order of the High Court Division are hereby set aside.... Rabiul Islam (Md) =VS= Asadul Haque (Md), [7 LM (AD) 363] Section—9 Exclusion of jurisdiction of a Civil Court should not be readily inferred. The civil Court has jurisdiction to try all suits of Civil nature excepting suits of which their cognizance has either expressly or impliedly been barred by law. The power of granting injunction by any Court in respect of any order passed or action taken or to be taken in pursuance of the power under the said Ordinance has been expressly taken away. Sulaiman Bibi and others Vs. Administrator, Farazikandi Complex and others, 13 BLD (HCD) 451. Ref: Ali Jan Khan and others Vs. Bangladesh and others, 37 DLR(AD) 161; Abdul Rauf and others Vs. Abdul Hamid Khan and others, 17 DLR(SC) 515; Secretary of State Vs. Mask & Co. 67 IA. 222= AIR 1940 PC 105-Cited. Section—9 Courts to try all civil suits Abandoned Buildings (Supplementary Provisions) Ordinance, 1985 Section—7 The petitioner’s title suit for declarations that the disputed property was not an abandoned property and he has right, title and interest thereto on the basis of registered deed of agreement and a general power of attorney having been dismissed on contest, the said decision of the civil Court with regard to the nature of the property and the plaintiffs claim thereto are not only binding upon the present petitioner but also upon the Court of Settlement consequently the court of Settlement acted without any lawful authority in declaring the property in question as not an abandoned property and issuing a direction for restoration of possession to the petitioner. Mohammad Moinuddin Vs. Bangladesh 16 BLD (AD) 165. Section 9,24, Order VII, Rule 10(1) The appeal of the present respondents are pending before the Honorable chief Justice there was no other court in which the plaintiffs could present their plaint for relief and in that view of the matter the High Court Division allowed the appeal and applying as the High Court Division put it "the age old principle that justice should not only be done but should manifestly and undoubtedly be seen to be done" withdraw the suit from the First Court Subordinante Judge (now Joint District Judge), Dhaka and transferred it to itself i.e same Division Bench for disposal. Mr. Ali Asgar Khan Registrar Supreme Court of Bangladesh vs Md. Anwarul Islam being dead his Heirs Most. Afroza Be gum (MM. Ruhul Amin, J)(Civil) 1 ADC 502 Section—9 Jurisdiction of Civil Courts Order VII Rule 11 - Rejection of Plaint Generally speaking the civil Court can try all suits which involve the determination of any civil right except those whose cognizance is “either expressly or impliedly barred”. Exclusion of jurisdiction of civil Courts is not to be readily inferred unless the suit is expressly barred by any statutory provision. Even if jurisdiction is so excluded, still then the civil Courts have jurisdiction to examine as to whether the provisions of an Act have been duly complied with or to examine as to whether a statutory tribunal has acted in conformity with the fundamental principles of judicial procedure. Md. Shahidullah Vs. Abdus Sobhan Talukder 16 BLD (HCD) 423. Section—9 In filing a suit under section 9, a plaintiff must have locus standi as well as legal right in order to claim a relief against a defendant. A plaintiff cannot file a suit on behalf of a company without any specific tangible interest in the said company. Even as shareholder, he has no right in the assets of the company. Shafi A. Choudhury v. Pubali Bank Ltd. and others, 22 BLD (HCD) 423. Code of Civil Procedure [V of 1908) Section 9-What are the legal sources of the 'suit for partition'. Since there is no separate independent procedural or substantive law for exclusively dealing with a suit for partition, the present suit is an usual Civil Suit under Section 9 of the CPC, like any other suits of civil nature and, therefore, its features depend on the particulars contained, averments made and the relief sought in the plaint as well as in the written statements. The scheme of Section 9 of the CPC is that when a natural/juristic person would find a dispute in the way of her/his enjoyment of any right of a civil nature, s/he is entitled to institute a civil suit in a competent Civil Court unless its cognizance is either expressly or impliedly barred by a statute. Section 9 found its placement in our CPC in terms of the doctrine Ubi Jus ibi remedium. Md. Akram Ali and others -Vs- Khasru Miah and others (Civil) 19 ALR (HCD) 124-148 Code of Civil Procedure [V of 1908] Section 10 The Court of Settlement has no power to decide counter claims made by the parties in the similar manner a civil court can decide. In view of Sub-Section (2) of section 10, though the Court of Settlement has all trappings of a civil court-it does not possess all powers of a civil court, inasmuch as, sub-section (1) of section 10 says the provisions of the Code of Civil Procedure are not applicable and it has powers of a civil court for (a) summoning witness (b) directing production of a document (c) calling for public record and (d) issuing commission for examination of witness or document, and nothing more. The Appellate Division held that the Court of Settlement on consideration of the rival claims by two groups clearly held that "the petitioner in Case No. 586 of 1999 (appellant in Civil Appeal No. 77 of 2003) never admitted that Rafi Tehrani possessed the case property nor this petitioner (Abdus Sobhan) has admitted in his evidence as P.W.1 that Rafi Tehrani ever possessed the case property. P.W.1 Abdus Sobhan in Case No. 586 of 1988 said that he heard that Rafi Tehrani lived in the Ispahani Colony. There is no Ispahani colony situated in the case property. This shows that Rafi Tehrani never lived at Maghbazar, Dhaka". These findings are based on undisputed evidence on record claimed by the respective claimants. These findings negated the claim of the claimants, inasmuch as, they are not legally entitled to any relief under section 7(1) of the Ordinance. Under the scheme of the law the Court of Settlement has no power to decide counter claims made by the parties in the similar manner a civil court can decide. In view of Sub-Section (2) of section 10, though the Court of Settlement has all trappings of a civil court it does not possess all powers of a civil court, inasmuch as, sub-section (1) of section 10 says the provisions of the Code of Civil Procedure are not applicable and it has powers of a civil court for (a) summoning witness (b) directing production of a document (c) calling for public record and (d) issuing commission for examination of witness or document, and nothing more. The appellants have wrongly chosen the forum and their remedy lies elsewhere. This counter-claim irresistibly infers one conclusion that these persons or their predecessors are claiming the property on the basis of forged documents as will be evident lateron. Both the appeals are liable to be dismissed on this ground alone and in fact, there is no need for examining other points as canvassed by the learned Counsel. Md. Shahidul Haque Bhuiyan and others-Vs- The Chairman First Court of Settlement and another (Civil) 23 ALR (AD) 114 Section 10 and 11 Seeking eviction of the licensee/ permissive possessor and for khas possession The suit was barred by limitation is not sustainable in law as "in a suit for ejectment of a licensee, the question to be firstly determined whether the defendant is a licensee or permissive possessor under the plaintiff, if that is established, the question of limitation will not arise at all because a licensee occupies the property according to the pleasure of the licensor and that occupation does not confer upon the right of exclusive possession as understood in law" Sreemati Priti Rani Chakraborty and others vs. J.M. Sen Institute, through Head Master & Secretary, Ahmed Ullah Faruqui (Md. Ruhul Amin J) (Civil) 4 ADC 37 Section—10 It is well-settled that the proceeding of any special court cannot be stayed on the ground of filing a suit under the general law even that is for the self-same matter and between the same parties. On the contrary suit filed under the general law may be stayed in appropriate circumstances. Iftekhar Afzal Vs Pubali Bank Ltd. and others, 18 BLD (HCD) 642. Ref: 14 BLD(AD)196; 18 BLD 291; 14 BLD (HCD)457; AIR 1977(SC) 1222. A.B. Sarin Vs. B.C. Patel, AIR. 1951 Born 423;--Cited. Section—10 Stay of a subsequent suit Section 10 of the Code provides that when two suits are pending between the same parties or between parties under whom they or any of them claim litigating and the matters in issue are directly and substantially the same, the latter suit shall remain stayed till the disposal of the earlier suit. In the instant case, there are not two suits but one suit and the other a miscellaneous case under Order 9 Rule 13 C.P.C. The learned Assistant Judge was thus evidently wrong in staying the earlier instituted suit for the sake of a subsequently instituted miscellaneous case. Chairman, Santosh Islami University Vs. Nil Mahmud and others, 15 BLD (HCD) 542. Section—10 Stay of subsequent suits A miscellaneous case under Order IX Rule 9 of the Code of Civil Procedure is not a continuation of the suit for the pendency of which further proceedings of an execution case can be stayed. Md. Nurul Islam and others Vs Md. Maniruddin Bepari and others, 16 BLD (HCD) 254. Section—10 It is a settled law that under the provision of section 10 of the Code of Civil Procedure the later suit shall be stayed if it is between the same parties and the matters in issue are substantially the same. But where common questions of disputed title are involved in the two suits it is desirable that the suits be tried simultaneously, although the parties to the suit are not the same. This is necessary for avoiding conflicting decisions and multiplicity of litigations causing harassment to the parties. Fazlur Rahman Vs Kazi Humayun Kabir and others, 17 BLD (HCD) 188. Ref: 40 DLR 56;—Cited. Section 10 It may be observed in the facts of the present case that although a suit for declaration of title has a great bearing on a suit for permanent injunction but the matter in issue in the two suits cannot be said to be directly and substantially the same, Admittedly neither the parties are the same nor the subject matter in the two suits although some of them are common. So this is not a particularly appropriate case in which the prayer for stay of the subsequent suit should succeed. However, having regard to the fact that at least one plot is common in the two suits in respect of which suit for declaration of title is pending and permanent injunction is being claimed against the defendants (in Title suit No. 131 of 1994) who are also defendants in the title suit, it is desirable that the same court. Askar Ali & anr vs Shamsul Islam alias Md. Shamsuddin (A.T.M. Afzal C (Civil) 2ADC 179 Code of Civil Procedure, Section 10 No Court should proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. Abdul Jabbar vs Sultan Ahmed (Amirul Chowdhury J)(Civil) 3ADC 707 Section 10 The plaintiffs contested the said application for rejection of the plaint by filing written objection contending that the subject matter, parties and the relief sought for in the said Title Suit No. 156 of 1966 and those of the present suit were not same; that the application for rejection of plaint was misconceived and so the same should be rejected. Hozizur Rahman vs. Abu Bakar Chowdhury (Nazmun Ara Sultana J) (Civil) 9 ADC 400 Section 10, 11 The suit was filed seeking eviction of the licensee/permissive possessor and for khas possession, of the land de- scribed in the schedule attached to the plaint. Sreemati priti Rani Chakraborty vs. J.M. Sen Institute, through Head Master (Md. Ruhul Amin J) (Civil) 6 ADC 945 Code of Civil Procedure [V of 1908] Section 11-Upon perusal of the orders it transpires that the courts below found that the certified copy of the judgment and decree in Title Suit No. 29 of 1989 manifests that the plaintiff or their predecessor in the present suit were not the defendant in Title Suit No. 29 of 1989 and further that the disputed land in Title Suit No. 29 of 1989 is also not the same as the disputed land in the present suit and moreover the relief claimed by the parties in Title Suit No. 29 of 1989 and in the present suit are not identical and as such as per section 11 of the Code of Civil Procedure the principle of Res Judicata which conditions have however not been fulfilled in the present case. The High Court Division observed that in this matter it is not prima facie manifest from the records that the case is barred by the principles of Res Judicata. The materials apparent on the face of the record do not satisfy the entrenched conditions for application of the principle of Res Judicata, Therefore whether the plea of Res Judicata can be applied in this case is a subject matter of scrutiny and must be adjudicated upon by a proper trial. In this case there is prima facie no scope to summarily reject the plaint at its inception as being barred by law by way of principle of Res Judicata or any other law. The issue of Res Judicata here is a disputed matter of fact. It may therefore be adjudicated and decided only pursuant to a proper trial upon further examination into the records and adducing evidence. Pankaj Kumar Biswas and others -Vs- Horendra Nath Mistry and others (Civil) 16 ALR (HCD)216-217 Section 11 Since this Court and the Appellate Division clearly found that the plaintiffs failed to establish their title in the suit lands, we cannot sit over those judg- ments and decide whether or not those decisions were illegal or erroneous. The suit is apparently barred under Section 11 C.P.C. and therefore, the same is li- able to be dismissed. The Courts below on a misconception of law and fact held that the suit was not barred by the prin- ciples of res judicata. Abul Hashem vs. Zilla Parishad, Chittagong (Md. Muza- mmel Hossain J) (Civil) 10 ADC 126 Code of Civil Procedure Section 11 Principle of resjudicata under section 11 of the Code is applicable in a writ pro- ceeding as the same is also a civil pro- ceeding. We are, therefore, of the view that claimed in writ Petition No. 4127 of 1992 filed by the writ petition-respon- dents against the appellants of both the appeals was barred by the principle of constructive resjudicata for implied refusal of their claim in respect of the self same sale deed dated 9.11.1989 in Writ Petition No. 798 of 1990. Morevoer after disposal of Writ Petition No. 480 of 1981 by judgment dated 14.1.1982 on the basis of assurance given in the supplementary affidavit sworn on 11.1.1982 respondents cannot claim that they are the owners of the lands and structures of Hardeo Glass, Alumunium, Enamel and silicate Works and the previous of the said factory and the appellants of the two appeals were and are ejectble monthly tenants under them. Hence the impugned judgment can not be sustained in law and is liable to be set aside. In the result both the appeals are allowed without any order as to cost and impugned judgment of the High Court Division is set aside. Government of Bangladesh and ors. vs. Sree Sree Luxmi Janardhan Jew Thakur & ors (Kazi Ebadul Hoque J) (Civil) 4ADC 339 Section 11 Filed seeking declaration of title and confirmation of possession in respect of the Ka' schedule land. Alhaj Md. Ruhul Amin Sarker vs. Hargram Trust Board (Md. Ruhul Amin CJ) (Civil)5ADC 762 The suit was filed seeking specific performance of contract (September 23, 1974) for sale of land described in the schedule attached to the plaint.....(1) Omar Farooque vs. S.M. Shahabuddin (Md. Ruhul Amin J) (Civil) 765 Section 11 Trade Mark Appeal.....(1) The petitioner Sunil Kumar Das being the sole proprietor of the Bangladesh Manufacture and Merchant made an application on 31.07.1997 to the Registrar of Trade Mark. Dhaka for registration of Mark "CANNON" in class 25 for Hosiery Product Sunil Kumar Das vs. Deputy Registrar of Trade Marks (Md. Abdul Matin J) (Civil) 5ADC 202 Section—11, Res judicata Order VII Rule 11(d)—Rejection of Plaint Question of res judicata cannot be decided from a reading of the plaint and should be decided at the time of trial. Md. Mahbubul Haque Vs Md. A. Kader Munshi, 20 BLD (AD) 82. Ref: Sreemati Pushpa Rani Das Vs. A.K.M. Habibur Rahman, 13BLD(AD)217— relied. Section 11, 42 The suit land was settled with the plaintiff's fore fathers and therefore unless the defendants were successful in providing is tafa (surrender) of the suit land, which was the main basis of their pleading they could not get any relief. Abul Hussain vs Afezuddin Mondal (Mainur Reza Chowdhury J) (Civil) I ADC 329 Section—11 Res Judicata It provides that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and sub stantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title and the Court has finally decided the matter. The petitioner filed a title suit in respect of the house in question for a declaration that it is not an abandoned property and he has title thereto. The suit was dismissed on contest. The petitioners appeal against the dismissal of the suit was also unsuccessful. Thus the decisions of the civil Courts with regard to the nature of the property and the plaintiff s claim thereto became binding upon the petitioner. The High Court Division correctly held that the decisions of the Civil Courts between the Government and the present petitioner being binding upon them, the Court of Settlement acted illegally and without jurisdiction in declaring that the property in question is not an abandoned property and ordering restoration of possession. Mohammad Moinuddin Vs The People’s Republic of Bangladesh and another, 16 BLD (AD) 122. Section—11: Res judicata When the causes of action of the two suits are different and the subject-matter of the two suits is also completely different, the decision in one suit cannot be considered as res judicata in the other suit. In such a case, the principle of res judicata is not applicable. Md. Rajiuddin Chowdhury Vs Suruj Ali, 16 BLD (HCD) 96. Section—11: Res Judicata To bring a case within the ambit of Section 11 of the Code of Civil procedure the issues in the former suit and the subsequent suit shall be the same, the suits should be between the same parties, the subject-matter should be the same and the former suit must be disposed of finally. Section—11: Res judicata The main object of the principle of resjudicata is to prevent multiplicity of suits and interminable disputes between the litigants. This principle aims at preventing not only a new decision hut also a new investigation so that the same person cannot be vexed again and again in multiple proceedings over the same question. This principle is mutual in character and it is open as such to the plaintiff as to the defendant. Md. Mannaf Hossain Vs Bangladesh Agricultural Development Corporation, 17 BLD (HCD) 336. Ref: Bangladesh Agricultural Development Corporation Vs. Md. Mannaf Khan and ors, 36 DLR(AD) 69-Cited. Section—11 Ordinarily, a plaint should not be rejected on the ground of res judicata unless it is so palpably clear and obvious from a reading of the plaint and no further evidence is required. Shafi A. Choudhury v. Pubali Bank Ltd. and others, 22 BLD (HCD) 423. Section—11 Res Judicata The reliefs sought for in a suit for permanent injunction and in a suit for partition are quite different and distinct from each other and as such the result in the suit for permanent injunction does not operate as res- judicata in a subsequent suit for partition wherein the question of title of the respective parties and their shares are ascertained and declared. Rabija Khatun and others Vs. Badsha Meah and others, 15 BLD (HCD) 325. Section 11 & 151, Order 9 Rule 13 Suit is not only barred by res-judicata but also barred because of the settled principle of law that there should be finality of the litigation after adjudication by the superior Court. Rasheda Be gum vs M. M. Nurussafa (Md. Ruhul Amin, J) (Civil) I ADC 210 Section 11 Principle of resjudicata under is applicable in a writ proceeding as the same is: also a civil proceeding. Bangladesh Mukti Joddah Kalyan Trust and ars vs Sree Sree Luxmi Janardhan Jew Thakur &ors (Civil) IADC 149 Section—11 The parties and the subject matter in both the suits are the same and the matter in issue as to the loss sustained by the plaintiff due to the reasons stated in the written statement of the earlier suit and plaint of the subsequent suit are materially and substantially the same and these issues were raised in the earlier suit and by necessary implication was rejected in the earlier suit and that decree of the trial Court has already been affirmed by this Court and as such the suit is hit by res-judicata. Manager, Bangladesh Krishi Bank and others Vs Al-Haj Md. Nurul Islam and another, 20 BLD (HCD) 179. Section—11 Doctrine of Res Judicata Doctrine of res judicata is a special form of estoppel. It gives effect to the law that the parties to a judicial decision should not after- words by allowed to relitigate the same question even though the decision may be wrong. If it is wrong it must be challenged by way of an appeal or other procedure. The whole doctrine of res judicata is based on consideration of judicial policy. Sirajul Islam Chowdhury Trawlers Ltd. Vs Sirajul Islam Chowdhury, 20 BLD (HCD) 347. Ref: Carl-Zeiss—Stiftung Vs. Rayher Keeler Ltd. (No. 2), 1966 2All E.R. 536(572):1967 AC 853(946)—relied. Section 11- Principles of resjudicata- The question of resjudicata cannot be decided by dint of objection raised in the application for addition of party without framing issues at the time of trial- The principles of resjudicata must be fulfilled which are as follows: (1) Identity of matter in issue: The matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit either actually or constructively. (2) Identity of parties: The former suit must have been between the same parties or between parties under they or any of them claim. (3) Same title: The parties in the subsequent suit must have litigated under the same title as in the former suit. (4) Concurrence of jurisdiction: The Court which decided the former suit must have been competent to try the subsequent suit or the suit in which the issue has been subsequently raised. (5) Finality of decision: The matter in issue in the subsequent suit must have been finally decided in the former suit. On perusal of the plaint of the suit and the pleadings of the parties it is clearly divulged that in the instant suit parties are not same. The suit properties are not same and the reliefs claimed in the present suit are not similar, rather, squarely distinct and separate. The question of resjudicata cannot be decided by dint of objection raised in the application for addition of party without framing issues at the time of trial. Reliance may be placed to the case of Sreemoti Puspa Rani and another Vs. A.K.M. Habibur Rahman and others, reported in XIII BLD (1993) (AD) 217. We find no merit in the appeal.... Mohammad Nurul Haque VS Md. Nurul Haque, [10 LM (AD) 74] Sections—12,13, and 44(A) Sections 12, 13 and 44(A) of the Code of. Civil Procedure do not apply to foreign award in Bangladesh. In India, the foreign awards are enforced by following a separate procedure provided under the Foreign Award Recognition and Enforcement Act, 1961. There is thus no difficult in India in enforcement of a foreign award. [Per Latifur Rahman, J.] Bangladesh Air Service (Pv.) ltd. Vs. British Airways PLC. 17 BLD (AD) 249. Ref: 22 DLR(SC)334; Halsbury’s Laws of England, 4th Edn., Vol. 8, Para 583, Page 407; Vol. 2, Paras 543 and546 at PP-270 and 280 respectively, Halsbury’s Laws of England, 3 Edn., Vol. 7, Para 137,P.72; Vol.2, Para 36, P.14; Priavate International Law by Cheshire and North,1 1th Edn., PP.457-461; The Conflict of Laws by Morris, 4th Edn. (1993), PP.131-136; Law of Arbitration and Conciliation b’ 5K. Roy Chowdhury and H.K. Saharay, 4th Edn., P.14 and P.27; Private International Law by Paras Diwan PP.506- 520 and Cheshire’s Private International Law. 1 11h Edn. P-457. Tzortzis Vs. Monark Line A/B, (1968) 1 WLR 406, SA(1970) 3 All ER71(HL); (1970) IAII ER796(HL); AIR 1987(SC)674: (1990) 3SCC481; AIR 1989 (SC)1239; AIR 1994(SC)860; 30 DLR94; 32 DLR(AD) 107; AIR 1963(SC)1044; A.l.R. 1964(Cal) 141; (1938) A.C. 224 (240); (1993) 1All ER 664(682); (1968) 1 W.L.R. (406)(409); AIR 1987 (SC)674; (1970) IAII ER 96;Black’s Law Dictionary, (Abridged5th Edn.) Biswas on Encyclopedic Law Dictionary, 2 End., A1R1958 (All) 374; A1R374; A1R1961 (SC)1152; Prem’s Judicial Dictionary, Vol. (iv); AIR 1963(SC) 1044; 22 DLR(SC)334; Halsbury’s Laws of England,4th Edn., Vol. 2, Para 501,P. 255; AIR 1959(SC) 781(795); 27DLR583; A1R1959(SC) 1357; 14 DLR (SC)151; A1R1954 (Allahabad) 393 PLD1952 (Lahore) 149—Cited. Sections—15-20 The Jurisdictional defect, either pecuniary or territorial or in respect of the subject-matter of the action, strikes at the very authority of the Court to act. A Decree passed by a Court which has no Jurisdiction to try the suit is a nullity the question of validity of the decree can be raised at any stage whenever, it is sought to be enforced. Section 115 and 99 and Section 11 of the Suits Valuation Act, 1887 The jurisdictional defect in the impugned Judgment and Decree is not itself a ground for interference in revision unless it has resulted in an error in the decision occasioning a failure of justice. Abul Kashem Md. Lutfullah Vs. Saiful Islam (Dumb) & Ors, 13 BLD (HCD) 648. Section—15 Court in which suits to be instituted In view of the provision of section’s of the Code providing that every suit shall have to be instituted in the competent Court of the lowest grade, the High Court Division refused to entertain the suit and returned the plaint to the filing Advocate for presenting the same before the District Court. Ansarul Hoque Vs. Agrani Bank, 18 BLD (HCD) 138. Code of Civil Procedure [V of 1908] Section 16 read with Civil Rules & Order Rule 757(1)- Whether is there any legal requirement for naming a suit as 'Title Suit', 'Money Suit', 'Mortgage Suit', 'Partition Suit' etc? While the classification of suits, as reveals from the provisions of Section 16 of the CPC, rule 757(1) of the CRO and Form Nos. (S)11, & ($)12 appended to the Part 2 of the CRO, are amply useful for the aforesaid administrative purpose, naming the suits again by the litigants or Sheristadar as Title Suits, Money Suits, Mortgage Suits, Rent Suits, Eviction Suits, Other Class Suit etc appears to me to be pleonasm. Because since it is a well- established practice of drafting a plaint that at the very beginning of the averments of the plaint there should be a 'cause title'; meaning a brief statement about the reason for institution of the suit, that information should be sufficient for the Nazarat Section of the Court for classifying the suit as 'Suit for declaration of title', 'Suit for specific performance of contract', 'Suit for recovery of rent, etc. If there is really a need of naming the suit, the litigants, Advocates and Courts may use the simple expressions of 'Civil Suit' for all classes of substantive suits and 'Civil Miscellaneous Case' for all types of civil miscellaneous proceedings, such as, preemption case, application for restoration of the suit or any other miscellaneous application arising out of the substantive suit. Md. Akram Ali and others -Vs.- Khasru Miah and others (Civil) 19 ALR (HCD) 124-148 Section 17, 39 Rule 3(2), 4 An application for temporary injunction for restraining the defendant-respondent and others from interfering with peaceful possession of the plaintiff petitioner in the suit property. Alhaj Mostafijar Rahman vs. Rezaul Hoque (Md. Joynul Abedin J) (Civil) 5 ADC 255 Section—17 The word Order’ used in Section 17 of the Ordinance does not include an interlocutory order which is passed by way of an aid to final adjudication of any dispute or claim. No appeal, therefore, lies before the District Judge under Section 17 of the Ordinance against an interlcutory order passed by the Family Court. Md. Younus Miah Vs. Abida Sultana @ Chhanda, 14 BLD (HCD) 291. Section 20 That cause of action for filing the suit by the appellant has arisen because of the decree passed in Artha Rin Adalat Case No. 55 of 1990 and the execution taken on the basis of the said decree ending in sale of the property of the appellant in auction and purchases thereof by the Respondent No. 3. Md. Habibur Rahman vs M/S. Uttara Bank Ltd (Md. Ruhul Amin J)(Civil) 3ADC 154 Section—20 Clause (C) If no part of the cause of action accrues at the place of the Branch Office of a company or corporation, the mere fact that the company /corporation has a Branch Office at the place will not give the Court jurisdiction to act. Law requires that a suit shall have to be instituted in a Court within the local limits of whose jurisdiction the cause of action arose. Khondoker Mahtabuddin Ahmed, Managing Director Vs. M/s Matin Tea and Trading Company, 14 BLD (AD) 58. Ref: 1981 B.C.R.(HCD) 364;1960 PLD (SC) 202 ;A.I.R. 1948 Lahore 56 Section—20 Explanation 11 A plaintiff can sue a Corporation either at the place of its sole or principal office or at any place where it has a subordinate office. But in the latter case it must be found by the court that the Corporation can conveniently put up its defence through its subordinate office. Of course, it is not necessary that a subordinate office should be a miniature of the head office, but nevertheless it must be such as the defendant can conveniently and effectively contest the suit through its subordinate office. M/s. Anwar and Brothers Vs. Bangladesh Shipping Corporation, 15 BLD (HCD) 447. Ref: 12 DLR (SC)47; 1981 SCMR 494- Cited. The Code of Civil Procedure, 1908 Section 20 Writ petition challenging the ex-parte decree passed in Money Suit No.19 of 2002 and the proceedings of Money Execution Case No.1 of 2006 corresponding to Money Execution Case No.85 of 2003 arising out of the said Money Suit No. 19 of 2002 filed by the respondent No.1 against the petitioner in the 1st Court of Joint District Judge, Chittagong. The said writ petition was filed on the ground that the court at Chittagong which entertained and passed the ex-parte decree had no jurisdiction inas- much as the alleged cause of action arose in Dhaka and not in Chittagong and both the defendants were residents of places beyond the territorial jurisdiction of the Chittagong District Court. Another ground for such challenge was that the said court passed the exparte de- cree without caring that the service re- turn of summons of the suit was not received. Sun Cult Business vs. M/s. Elite Iron & Steel (Md. Joynul Abedin J) (Civil) 6 ADC 666 Section 21 Rules 52, 56 Whether the appellant is bound to pay the decreetal amount to the respondent No.1 out of the Consolidated Fund with- out a separate instrument authorizing such payment. Bangladesh Bank vs Mrs. Rana Awan (Md. Tafazzul Islam J) 3ADC 427 Section 21 The Supreme Court of Bangladesh (High Court Division) Employees (Discipline and Appeal) Rules, 1983. Rules of 1983. Rule 2(2). It is by now well settled that consent or waiver cannot give jurisdiction where there is inherent lack or absence of it and in that case the order is a nullity. Bangladesh vs Md. Shafiuddin, son of late Md. Asuruddin (Mainur Reza Chowdhury J)(Civil) 2ADC 953 Code of Civil Procedure [V of 1908] Sections 24 and 115(4) Since the petitioner wanted to transfer the suit from oue district to another district, the only forum available to him was to file an application before the High Court Division under section 24 of the Code. The Appellate Division observed that admittedly the suit is pending in the Court of Joint District Judge, 3rd Court Barisal when Patuakhali District was under the judgeship of Barisal. Be that as it may, since the petitioner wanted to transfer the suit from oue district to another district, the only forum available to him was to file an application before the High Court Division under section 24 of the Code of Civil Procedure, instead, he filed successive applications before the trial Court, the District Judge and the High Court Division under the wrong provisions of law. Therefore, the High Court Division rightly discharged the Rule and as such, the impugned judgment and order does not call for any interference by this Court. However, if so advised, the petitioner can move the High Court Division afresh under section 24 of the Code. This petition is dismissed with the above observations. Anwar Hossain (Md) Vs. Lutfar Nahar and others (Civil) 22 ALR (AD) 195 Section 24-Since the petitioner wanted to transfer the suit from oue district to another district, the only forum available to him was to file an application before the High Court Division under section 24 of the Code, instead, he filed successive applications before the trial Court, the District Judge and the High Court Division under the wrong provisions of law. Anwar Hossain (Md) vs Lutfar Nahar (Civil) 71 DLR (AD) 324 Section—24 In deciding a question in respect of an order of transfer of a case on the sole ground of an analogous trial with another case, it needs to be seen whether the facts and nature of the cases are conducive for such transfer on the sole ground of an analogous trial of both the cases. Tambia Khatun Sowdagar, Vs. Abdur Rouf 13 BLD (HCD) 248. Ref; Haji Abdus Sattar Vs. Mahiuddin and others, 38 DLR(AD)97; Abdul Jahar Vs. Abdul Kader and others 36 DLR3O6; DronavajjulaVidyamba Vs.Vallabhajo sulla Lakshmi Venakyamma, A.I.R. 1958 (Andra Prodesh) P.218—Cited. Section 24 Transfer the suit from one district to another district- The suit is pending in the Court of Joint District Judge, 3rd Court Barisal when Patuakhali District was under the judgeship of Barisal. Be that as it may, since the petitioner wanted to transfer the suit from one district to another district, the only forum available to him was to file an application before the High Court Division under section 24 of the Code, instead, he filed successive applications before the trial Court, the District Judge and the High Court Division under the wrong provisions of law. Therefore, the High Court Division rightly discharged the Rule and as such, the impugned judgment and order does not call for any interference by this Court. However, if so advised, the petitioner can move the High Court Division afresh under section 24 of the Code. ...Anwar Hossain(Md) =VS= Lutfar Nahar, [7 LM (AD) 189] Sections—24 and 115 Bangladesh Legal Practitioners and Bar Council Order and Rules, 1972 The Bar Council Tribunal is an internal Tribunal of the lawyers constituted under Article 33(1) of the Bar Council Order and it is vested with certain powers as are vested in a Court under the Code of Civil Procedure in respect of certain specified matters but from this it cannot be said that the Tribunal is a Court like other Courts. As the Tribunal or the Chairman of the Bar Council is not a Court subordinate to the High Court Division, this Court cannot entertain any petition exercising its jurisdiction under Section 115 C.P.C. for transferring a case from one Tribunal to another. Md. Alim Hossain, Advocate Vs. The Chairman, Bangladesh Bar Council, Dhaka and another, 14 BLD (HCD) 329. Section—24 Power of transfer and withdrawal The High Court Division commits an error of law in withdrawing a suit to itself from the trial Court without assigning any reason, without following the requirements of law for such withdrawal and without affording proper opportunity to the appellants’ Advocate to place his case before the Court. Government of Bangladesh and another Vs Md. Razor Rahman Chowdhury, 17 BLD (AD) 173. Section—24 Artha Rin Adalat Act 1990 (IV of 1990) Civil Courts Act 1887 (XII of 1887) A case pending in the Artha Rin Adalat cannot be heard analogously with a case pending in any Court created by the Civil Courts Act. A suit under general law cannot be tagged and heard analogously with a suit under a special law. Ripon Packaging and Accessories ltd. v. Eastern Bank Ltd. and another, 22 BLD (HCD) 127. Ref: Bangladesh Shilpa Bank v. Bangladesh Hotels Ltd. 38DLR(AD)70; Ahmed Silk Mills Ltd. V. Bangladesh Shilpa Bank 42 DLR 140; Iftekhar Afzal v. Pubali Bank Ltd. 6 BLT (HCD)166. Section 34 That in the absence of any specific reference to an Arbitrator on a question as to what interest is to be paid subsequent to the passing of the decree the Arbitrator does not possess any authority to award interest as his jurisdiction is limited by terms of his reference. BWDB vs MIs Zakir Construction & Co (Civil) 1 ADC 160 Section—24, Order XLVII Rule I Section 24 C. P.C. provides that where an application for transfer is moved before a Court, it is to hear the application after issuance of notice on the other side but where. the court suo motu passes an order under this section no such notice is required. In the instant case the transfer of the case without hearing the other side is contrary to the provision of section 24 C.P.C. and it amounts to “some mistake apparent on the face of the record-- and is covered by the expression for any other sufficient reason” employed in Rule I of Order 47 C. P. C. Mathura Mohan Pandit being dead his heir Sudhir Chandra Das Vs. Most Hazera Khatun, 14 BLD (HCD) 547. Section—24(1)(b)(i) There cannot be any assumption that a District Judge who is a party to a suit will receive automatic support and sympathy of his peers while trying a suit to which he is a party. To give way to such assumptions will be a ruinous invitation to a floodgate which should not be opened. The High Court Division rightly did not encourage a transfer on a mere unfounded apprehension. Mosammat Shahida Khatun Vs Abdul Malek Howlader and ors. 18 BLD (AD) 217. Section—24A(2) As the transferee Court has not informed the defendants about the transfer of the suit the defendants did not get the opportunity to defend their cause, the suit is sent back on remand to the trial Court for disposal after notifying the parties. Abdul Khaleque Vs Abdul Barek Howlader and others, 17 BLD (HCD) 268. Section—30, Order VI Rule 17 Under section 30 of the Code the Court has power to order discovery and the like that may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and fats, and the discovery, inspection, production, impounding and return of the documents or other material objects producible as evidence etc. In the instant case the learned trial Court committed a gross error of law in applying the same in an application under Order VI Rule 17 of the Code of Civil Procedure for amendment of the plaint. Now, the settled law is that a plaint can be amended at any stage of the suit or appeal when it does not change the nature and character of the suit. Abul Kalam Bepari Vs Faziul Huq Fakir, 18 BLD (HCD) 442. Code of Civil Procedure [V of 1908] Sections 30, 31, 32 and Order 19 read with Evidence Act [I of 1872] Section 165-Duties of the learned Judges dealing with appeals: The appellate Court, in an appropriate suit if required, is not only empowered to take additional evidence, which would not amount to filling up lacuna caused due to the negligence/failure of any party to the suit, but also competent to call for necessary documents and persons by invoking the Court's power under Section 165 of the Evidence Act read with Sections 30, 31, 32 and Order 19 of the CPC. Under the above constitutional duty of superintendence in addition to being invested with the revisional power by the CPC, this Court notifies that when the learned Judges of the subordinate Courts perform their functions as the trial Court's Judge or the appellate Court's Judge, they should not hesitate to resort to the provisions of Section 165 of the Evidence Act, 1872, Sections 30, 31, 32 and Order 19 of the CPC in an appropriate case for the purpose of fair and effective adjudication of a suit. The trial Courts and appellate Courts, under the above provisions of laws, possess ample powers to summon and, if the situation warrants, then, to compel the appearance of any person in the Court and to produce the necessary relevant papers to the Court and take their deposition as Court Witness/es (CW/s), as has been held in the case of STS Educational Group -Vs- Bangladesh 18 BLC 806. Md. Akram Ali and others -Vs.- Khasru Miah and others (Civil) 19 ALR (HCD) 124-148 Code of Civil Procedure [V of 1908] Sections 33 and 151 read with Arbitration Act, 1940 Sections 8 and 22 read with Limitation Act [IX of 1908] Article 181 Requirement of notice as contemplated by section 14 of the Act is indispensible, which connotes that the knowledge of the defendant as to the fact of the filing of the award, be that actual or con- structive, cannot be a substitute for the notice required by law. Knowledge of the filing of the award acquired otherwise than in the way prescribed by section 14(2) should be distinguished from the service of notice under section 14(2) of the Act, and that if no notice envisaged by that section is served, direction to cause the award to be filed in Court should be made within 3(three) years from the date when right to apply accrues according to the residuary provision of Article 181 of the Limitation Act. Admittedly no notice as contemplated by section 14 of the Act was served. The Appellate Division has, in this respect, analysed the ratio of the decision of this Division in Dhaka Leather Complex Ltd. Vs. Sikder Construction Ltd. and another, reported in 8LG(AD) 75, to the effect that knowledge of the filing of the award acquired otherwise than in the way prescribed by section 14(2) should be distinguished from the service of notice under section 14(2) of the Act, and that if no notice envisaged by that section is served, direction to cause the award to be filed in Court should be made within 3 (three) years from the date when right to apply accrues according to the residuary provision of Article 181 of the Limitation Act. So far as the respondent's contention on the security bond is concerned, the Appellate Division finds little substance in the argument that because the same has been given by a functionary of the Board, rather than by the Board itself, it was unacceptable. For all that the Appellate Division has stated above, the Appellate Division is of the view that the High Court Division erred in holding that the appellant before the Appellate Division, as the defendant in the trial Court filed the written objection out of time. The Appellate Division does, accordingly allow this appeal thereby setting aside the judgement and the order the High Court Division. The Executive Engineer. Gomati Water Development Division, Comilla -Vs.- Md. Shah Alam and others (Civil) 20 ALR (AD) 157-160 Code of Civil Procedure [V of 1908] Section 34-Whether the High Court Division was wrong in setting aside the decree of the trial Court so far as regards pendente lite and post-decree interest granted under Section 34 of the Code of Civil Procedure. The petitioner suffered damae due to non-payment of Commission in violation of the terms of the agreement which the petitioner quantified in terms of interest payable for taking loan from the banks and the High Court Division was wrong in denying the petitioner the interst claimed up to the date of filing of the suit. M/S. Gramsico Limited -Vs. Bangladesh Textile Mills Corporation (Civil) 18 ALR (AD) 16-25 Code of Civil Procedure [V of 1908] Section 47-One who was not a party in the suit, the judgment passed in the said suit is not binding upon him. The High Court Division has carefully examined the judgment and order dated 30.06.1993 passed by the High Court Division in review of the judgment and order dated 10.12.1986 passed in FMA No. 333 of 1986/remembered 218 of 1991 with Civil Revision Nos. 566, 586, 569, 617, 618 of 1986 and Civil Rule No. 77(F.M.) of 1986. It is evident that aforesaid F.M.A and Civil Revisions were preferred against the judgment and order dated 107 dated 10.09.1986 passed by the learned Sub- ordinate Judge, First Commercial Court, Chittagong in Money Suit No. 91 of 1986. It is further evident that the present decree holder, Md. Nurul Alam Chowdhury was not a party in Money Suit No. 91 of 1986. Thus the High Court Division finds that the judgment passed in the FMA with other Civil Revisions is not binding upon the present opposite-party decree-holder of Money Execution Case No. 03 of 1992 which arises out of Money Suit No. 123 of 1986 renumbered as Money Suit No. 09 of 1991. Moreover, Section 47 of the Code of Civil Procedure has been omitted by the Civil Procedure Code, 1908 (Amendment) Ordinance (Ordinance No. XLVIII) of 1993. Bibhuti Bhushan Talukder -Vs- Mohd. Nurul Alam Chowdhury and others (Civil) 16 ALR (HCD)65-68 Section—34 Court’s power The implied power of an arbitrator which may be exercised by him in his discretion is on the analogy of the Courts power under Section 34 C.P.C. In the absence of any law or agreement providing for payment of interest by an arbitrator on his award, his power does not extend to pre-reference period. The Bangladesh Agricultural Development Corporation (BADC), represented by its Secretary Vs. M/S. Kibria and Associates Ltd., represented by its Managing Director Syed Golam Kibria, 14 BLD (AD) 99. Ref: 1950(2) All E.R. 618; (1780)99 E.R. 242; (1826) 130 E.R. 549; (1829) 109 E.R. 140; (1893) A.C. 429; (1949) (2) All. E.R. 62; (1981) 2. All E.R. 672; AIR. 1938 (PC) 70; 17 D.I.R. (SC) 404; A.I.R. 1988 (SC) 1520; AIR. 1993 (SC) 864; A.I.R. 1993 (SC) 2464; A.I.R. 1993(SC) 2521; 44DLR (AD) 296; 1983 BLD(AD) 109; A.I.R. 1923 (PC) 66; 1981 A.C. 31; A.I.R. 1992 (SC) 732- Cited. Section 34 Section 34 of the Code of Civil Procedure provides that payment of interest is discretionary but should not be refused in the absence of proper rea- son and in exercising discretion it must be reasonable. The rate of interest should also be equitable in the facts and circumstances of the case. The exercise of discretion depends on many facts including the fact that the amount decreed was in respect of a liability aris- ing out of a commercial transaction. Dhaka City Corporation vs M/s. Abdul Kader (Pvt.) Ltd. (Mohammad Fazlul Karim J)(Civil) 2ADC 291 Section 34- The Appellate Division held that since the respondents are obliged to pay the loan taken from the Bank for utilizing the amount in the contract work at the rate of 18% compound interest, ends of justice would be best served if the appellant is directed to pay interest at the rate of 18% in respect of the decreetal amount till realization. The High Court Division also found that the interest calculated and awarded by the trial Court is maintainable and there is no evidence to show that awarding or calculating of such interest is against any agreement or against any interest on record, the appeal is dismissed. .....D.C.C =VS= M/s. Abdul Kader (Pvt.) Ltd & others, [1 LM (AD) 418] Sections—34 and 35 Interest and Costs A plaintiff does not have any statutory right for automatically getting interest on the principal amount under section 34 or to get costs of the suit and appeal under section 35 of the Code of Civil Procedure. In such matters the discretion lies with the Court. When the court is silent about these, it shall be deemed to have been refused and no separate suit shall lie therefore. Janata Bank Vs. M/s. Wahid Enterprise (Pvt) Ltd., 18 BLD (AD) 51. Section—34(1)(2) It provides that in a money decree the court may award interest to be paid on the principal sum adjudged pendente lite, in addition to any interest for any period prior to the institution of the suit, with further interest from the date of the decree till realisation. Sub-section 2 provides that where such a decree is silent with respect to the payment of interest or further interest, it shall be presumed that the court has refused such interest. Kadam Rosul Silicate Works and others Vs. Sonali Bank, 14 BLD (AD) 239. Section—48 Barring execution in certain cases Limitation Act, 1908 (IX of 1908) Article—182(2) of the First Schedule Both Section 48 C.P.C. and Article 182(2) of the First Schedule to the Limitation Act provide the period of limitation for the execution of a decree. The Civil Procedure Code fixes the longest period whereas the Limitation Act fixes the earliest period for taking the first step towards execution of a decree. The subsequent steps are known as step in-aid. An application for execution has therefore to satisfy first the requirement of Article 182 of the Limitation Act, being the earliest period prescribed, and then also section 48 C.P.C. which prescribes the maximum period of limitation extending to 12 years. If the execution case is hit by any of the two provisions noted above, it must fail necessarily. Assistant Custodian, Enemy Property (Vested and Non-Resident) (JAB) and A.D.C.,(Revenue), Pabna Vs Md. Abdul Halim Mia, 16 BLD (AD) 73. Ref: Bangladesh Jatiya Smabaya Bank Lt. Vs. The Sangbad, Daily Paper and others, BCR 1983 (AD) 418; Md. Abdur Rahim and others Vs. Sree Sree Gredhari jeo, 27 DLR (Dhaka) 72; Pingle Venkata Rama Reddy Vs. Kakaria Buchann and others, A.I.R 1963 Andhra Pradesh (FB) I; Lalji Raja and sons. Vs. Firm Hansraj Nathuram, A.I.R. 1971 (SC) 974;—Cited. Section—51 Order XXI rules 37 and 38 The law does not authorise to send one to civil prison on an assumption that the judgment debtor will not be able to satisfy the decree. Payment of money under a decree by arrest and detention in civil prison can only be resorted to after fulfillment of the conditions as provided under the proviso to section 51 of the Code. Anowar Hossain v. Rupali Bank Ltd. 22 BLD (HCD) 153. Ref: Sultana Jute Mills Limited and others v. Agrani Bank and others 14 BLD(AD)196; 46 DLR(AD)174; Hosne Ara Begum and another v. Islami Bank Bangladesh Limited 53DLR(AD)9; Islami Bank Bangladesh Limited v. Alhaj Md. Shafiuddin Howlader and another 8BLD(AD) 187. Section 56 The respondent No.2 put the decree into execution by filing Money Execution Case No.2 of 1991 and at one stage filed an application with the prayer for making an order for civil imprisonment of the defendant judgment-debtors including the appellant. ....(2) Hazera Begum vs. Artha Rin Adalat and others (Md. Joynul Abedin J) (Civil) 5ADC 220 Seeking declaration that the property was not an abandoned property but the plaint of the suit was rejected Nazma Ahmed and others vs. Bangladesh represented by the Secretary (Amirul Kabir Chowdhury J) (Civil) 5ADC 224 Delay is condoned.....(1) The suit was filed seeking redumption of the cot mortgage which was made by the kabala Harich Ahmed vs. Wali Ullah and others (Md. Ruhul Amin J) (Civil) 5 ADC 228 For recovery of khas possession in respect of lands......(2). Md. Fazlur Rahman vs. Haji Md. Manir Khan (Mohammad Fazlul Karim J (Civil) 5 ADC 231 For permanent injunction.......(2) Wali Miah Sodagor Jame Masjid vs Abdul Hoque (Mohammad Fazlul Karim J) (Civil) 5 ADC 234 For a declaration that the registered deed dated 24.03.1988 being No. 2969 of 1988 is forged, collusive, inoperative and not binding upon the plaintiffs. Md. Abdul Muttalib vs. Md. Abdul Wahab (M. M. Ruhul Amin J) (Civil) 5 ADC 237 Section—60 Pensions Act, 1871 (Act XXIII of 1871), Section—11 Section 60 C.P.C. provides that stipends and gratuities allowed to pensioners of the Government or payable out of any service, family pension fund, provident funds etc. are not liable to attachment. Section 11 of the Pension Act, 1871 provides that amounts due on account of pension or allowance in consideration of past service shall not be liable to attachment by any Court. Md. Moslehuddin Vs. Aziza Begum and others, 14 BLD (HCD) 465. Code of Civil Procedure [V of 1908] Section 63-Since all the disputes are in respect of the same disputed property. The High Court Division disposed of the matters with the following observation: 63(1) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade or, where there is no difference in grade between such Courts, the Courts under whose decree the property was first attached. (2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees.' Therefore, the Executing Court, 1" Additional District Judge, Dhaka is hereby directed to put the said property in auction with full compliance of the legal formalities and the sale proceeds received out of such sale should be distributed to Al-Baraka Bank at the 1" point of time with 10% interest starting from the date of its Mortgage decree in respect of the loan since it is found to be the only secured creditor. Secondly, the balance amount of the sale proceed shall be paid to Sonali Bank from the date of its attachment of the said property on 15.10.1990 together with interest @ 10% from 15.10.1990, of course Sonali Bank shall adjust its received amount with its auction purchaser, the respondent No. 3a, of this appeal namely Md. Aminul Hoque and thereafter the remaining balance amount of the sale proceed shall be paid to Agrani Bank in respect of its decreetal amount together with 10% interest from the date of its attachment on 12.01.2001 and thereafter surplus amount, if any, shall go to the heirs of lat Abidur Rahman since he is no more in this world as he died on 12.10.2012. In the process of distribution it may be pointed out further that the first payment shall be made to Al-Baraka Bank second payment to be made to Sonali Bank which shall redeem its auction purchaser and lastly to Agrani Bank. It may not be out of place to mentioned that in view of the resolute directions given above we refrain from evaluating the applicability of the decisions cited by the learned Advocates with a view to avoid a mere academic discourse. The Appellate Division held that in view of the aforesaid conflicting claims and counter claims of the parties and that since the disputed property is situated in Gulshan area and the present market price of the same is much more than those of the claimed amounts of the claimant parties, the Appellate Division does not find any wrong in the observation and directions of the High Court Division to resolve the respective claim of the parties effectively. Accordingly, all the petitions are disposed of. Sonali Bank Limited, represented by the Deputy General Manager of Local Office, Dhaka Vs Agrani Bank Limited and others (Civil) 18 ALR (AD) 128-134 Code of Civil Procedure [V of 1908] Section 73 read with Labour Act, 2006 Section 350 read with Artha Rin Adalat Ain [VIII of 2003] Distribution of sale proceeds is to be made by superior Court. The decree holders in all such cases will be entitled to ratable distribution under section 73 of the Code. Since the Artha Rin Execution Adalat is superior then that of the certificate Court, the sale and distribution of proceeds is to be made by the former Court. The petitioner is at liberty to make claim to get their money as ordered by the Labour Court to the Artha Rin Execution Adalat. Under the circumstances and in the context of episode involved herein the High Court Division considers it prudent to dispose of the matter once for all with the following directions: The executing Adalat, namely, Ist Artha Rin, Dhaka is hereby directed to put the property and assets of the Jute Mill in auction with full compliance of the legal formalities and sale proceeds received out of such sale should be distributed to the labours including the petitioner at the first point of time with 10% interest starting from the date of judgment passed by the Labour Court since it is the labours who should get their arrear salaries at first. Secondly the balance amount of the sale proceeds shall be paid to the Sonali Bank opposite-party No. 1 herein from the date of delivery of the judgment of the Artha Rin Suit, ie. 29.09.2008 or attachment of the said property together with interest at the rate as prescribed in Artha Rin Adalat Ain, 2003 and thereafter surplus money, if any, shall go to the Jute Mills. Abdul Hai Munshi, Vs. Deputy General Manager, Sonali Bank Limited and 3 (three) others. (Civil) 17 ALR (HCD) 147-150 Section 80 (2) In view of the said findings it is utterly futile to decide whether the proper article of the Limitation Act was applied in the suit because the suit was dismissed on merit finding that the exparte decree was not obtained by practising fraud as alleged by the plaintiff-appellant. The plaintiff, however, has not made any grievance in the plaint as to the granting of shorter time for filing the written statement". It does not appear that the plaintiff's prayer for time for filing written statement in Title Suit No. 253 of 1976 was refused before passing the exparte decree in that suit. Additional Deputy Commissioner (L.A.) vs. Saifuddin Khan and others (A.T.M. Afzal CJ)(Civil) 4 ADC 405 Section 80 (1) If a suit is instituted without delivering or leaving notice as provided in the law the court shall allow not less than three months time to the Government to submit its written statement. Bangladesh, Dhaka vs Md. Sirajuddin Ahmed (Amirul Kabir Chowdhury J(Civil) 2ADC 724 Section 89A(12) of the Code of Civil Procedure: Either of the party defendant or appellant, if not a party to the settlement, can prefer appeal or revision to the higher forum. Sub-section 12 of Section 89A will not be applicable in the case of any party, who are not the party to the compromise in pursuance of settlement. (Para-14, Mr. Justice Obaidul Hassan). 63 DLR 528: Abdul Haque Vs. Monija Khatun & others Section—91 (1) Public nuisances and sanction of the Attorney General for instituting suit In case of public nuisance if a member of the public wants to initiate a civil proceeding it is incumbent upon him to obtain sanction under Section 91(1) C.P.C. in the absence of any special damage to him. But if the plaintiff wants to bring an action against the defendant for his unlawful act on his land or building causing a private nuisance, the provision of Section 91(1) of the Code does not apply. In the case of a private nuisance no special damage is required to be proved. it is enough if the plaintiff can prove that by the unlawful user of the land/building by the defendant some annoyance or discomfort has been caused to him. Wahid Mia alias Abdul Wahid Bhuiyan Vs Dr. Rafiqul Islam and others, 16 BLD (HCD) 255. Ref: 36 DLR 227; 46 C.W.N. 261; 35 DLR (AD)42: 14 BLD (AD) 242; 1815, 4DeG. & Sm. 315; I.L.R.3 Calzo (F.B.); I.L.R. 27 Cal. 793; 25 C.W.N. 95; I.L.R. 31 (All) 444; LL.R. 33 (All) 287; 23 Mad. L.J. 539; I.L.R. 2 Bom.469; I.L.R. 10 Pat 568; A.I.R. 1963 (Punjab) 104; A.I.R. 1929 (All) 877; A.LR. 1937 (Mad) 21; A.I.R. 1937 (Sind)8; 17DLR (SC) 47— Cited. Section—92 This provision is meant for trusts created for public purposes which may be of a charitable or religious nature, and for trust properties governed by the Trust Act. It is not applicable to charitable societies registered under the Societies Registration Act. (Per Mahmudul Amin Choudhury, CJ) BRAC v. Professor Mozaffar Ahmed and others, 22 BLD (AD) 41. Section—56 In a suit for permanent injunction the plaintiff is not required to strictly prove his title in the suit property. The existence of a prima facie title and possession in the suit property is sufficient for the purpose. Anwar Hossain Vs. Abdul Gafur and others, 14 BLD (HCD) 260. Constitution of Bangladesh, 1972 Article 103 read with Code of Civil Procedure, 1908 Section 96 Suit for declaration of title and recovery of khas possession - trial Court decreed the suit on contest - In appeal the burden is on the appellant to show that the judgment of the trial Court is wrong. It is apparent that the trial Court as well as the appellate Court (High Court Division) arrived at a concurrent finding of facts regarding title and possession as well as dispossession. Held; when a finding of fact is based on consideration of the materials on record, those findings are immune from interference by the revisional court except there is non-consideration or misreading of the materials evidence on record. It has now been conclusively settled that the third court cannot entertain an appeal upon question as to the soundness of findings of fact by the second court. If there is evidence to be considered, the decision of the second court, however unsatisfactory it might be if examined, must stand final. Since the learned subordinate Judge came to finding of facts regarding title of the suit land and possession of the parties as well dispossession based on as assessment of evidence on record and the High Court Division upheld the finding upon re- assessing the evidence on record, the matter does not call for any interference. [Para-18 & 21] [31 BLT (AD) (2023) 15] Code of Civil Procedure (V of 1908) Section 97 The object of section 97 of the Code is that questions which had been urged by the parties and decided by the court at the stage of preliminary decree will not be open for re- agitation at the stage of the preparation of final decree and would be taken, as finally decided if no appeal had been preferred against the preliminary decree. In the present case as has been noticed that admittedly the defendant- appellant did not prefer any appeal against the preliminary decree, the correctness of the preliminary decree cannot now be questioned by the defendant in view of the clear mandate of section 97 of the Code. In the event of failure to prefer an appeal against a preliminary decree, the preliminary decree is deemed to have attained finality. [73 DLR 544] Section 98- If the point of difference is not stated by the learned Judges, it will be for the Third Judge to whom the case is referred to ascertain the same and to give his opinion thereon- We find that though the learned Judges of the High Court Division did not state in their judgments, which question of law as to the interpretation of the Constitution is involved in the case, this Division held that for such defect, the appeal before this Division was not incompetent on the score of defective certificate. We are also of the view that though the learned Judges did not specify the law point on which they differed, in such a situation, it was the duty of the learned Third Judge to whom the matter was referred to ascertain the difference of opinion. Having gone through the judgment of the Third Judge, we find that the learned Judge could detect the difference of opinion of the learned Judges of the Division Bench about the law point and resolved the issue accordingly. Therefore, for not merely stating the law point by the learned Judges, who differed with each other, the judgment delivered by the Third Judge cannot be said to have been passed without jurisdiction. ...Shajahan Mia(Md.) VS Ministry of Forest, BD, [10 LM (AD) 122] Section—98(2) Proviso Proviso to sub-section (2) of section 98 of the Code provides that where the Bench hearing the appeal composed of two judges differ in their opinion on a point of law, they may state the point of law upon which they differ and the appeal then shall be heard upon that point only by one or more of the other Judges of the Court, and such point shall be decided according to the opinion of the majority of such Judges. [Per Kazi Ebadul Hoque, J] Rajdhani Unnayan Kartipakha Vs. Mohammed Jabed Ali and others, 17 BLD (HCD) 341. Ref: 16 DLR 77; 11 DLR 103; PLD 1970 (SC) 180:22 DLR (SC) 98; 30 DLR 244: 47 DLR 573; 22 DLR 655; 26 DLRIO; 18 DLR 709; Marghub Siddique Vs. Hamid Ali, 1974 SCMR 519; 6 BLD (AD) 342; 1965(SC)1514; 1971 SCMR 447; AIR 1968 (SC) 1970; -- Cited. Section—99 Section 99 C.P.C. provides that no decree shall be reversed or substantially varied on account of any misjoinder Of parties or causes of action etc. not affecting the merits of the case or the jurisdiction of the Court. In the absence of any material to prove that the merit of the present case has been affected because of the alleged misjoinder of causes of action, grievance on that score cannot be entertained. Sharafat Hossain being dead his heirs Md. Shah Jamal and others Vs. Dr. Islamuddin, 14 BLD (AD) 137. Section—99 The omission to sign the deposition sheet is a defect or irregularity in the proceedings. But the merits of the Case and the jurisdiction of the Court are not affected by the said omission. Mere non-signing of the deposition sheets does not amount to an illegality. Section 99 of the Code is intended to prevent technicalities from overcoming the ends of justice. Md. Meser Ali Vs. Md. Khaybar Ali, 18 BLD (HCD) 92. Ref: AIR 1979 (Delhi) 22; AIR 1951 (Patna) 293; AIR 1954 (SC) 340—Cited. Section 100 Findings of criminal court, cannot be considered by the Civil courts save and except the factum of conviction and sen- tence. Abdul Mannan vs Tayeb Ali ors. (Md. Ruhul Amin J)(Civil) 3ADC 326 Section—100 Section 100 of the Code of Civil Procedure does not authorise the High Court Division to disturb the finding of fact of the Court of appeal below, the final Court of fact arrived at on appreciation of the evidence even though the High Court Division does not agree with the finding arrived at by the Court of appeal below on consideration of the evidence on record. Hriday Ranjan Dey and another v. Niranjan Dey being dead his heirs Probate Day and others, 21 BLD (AD)147. Ref: Akrab Ali and others Vs. Zahiruddin Kari and others, 3ODLR(SC)81; Mir Laik Ali Vs. Standard Vacuum Oil Company (ESSO) and Abdur Razzak 16DLR(SC)287; Madan Gopal & ors. Vs. .Maran Bepari & ors 21DLR (SC)448. Section 100, 103 The plaintiff's suit was barred inasmuch as if the demand for reconveyance within the stipulated time was not proved, no amount or darbar could bring back the plaintiff's claim for reconveyance to life.......... that the plaintiff's suit was barred inasmuch as he failed to prove that the demand for reconveyance was made within the stipulated time. Ali Ahmed vs Nazimuddin Patwary ors. (Bimalendu Bikash Roy Choudhury J(Civil) 2ADC 835 Section—100 Second Appeal—Finding of facts—A finding of fact without proper consideration of the evidence on record and which is not based on sound reasoning is no finding in the eye of law. Such a finding is not immune from attack in second appeal. A proper finding of reversal must conform to the evidence. Misreading and non-consideration of the material evidence on record and erroneous assumption of facts render the judgment untenable in law. Lalu Uddin Vs. Hemayet Hossain and others, 15 BLD (HCD) 42. Section—100 In a second appeal findings of fact arrived by the first appellate Court cannot be reversed by the High Court Division unless those are vitiated by misreading of the material evidence affecting the impugned decision. In the instant case, registered patta exhibit-i and rent receipts exhibit-2 series having not been considered by the Court below and its findings being vitiated by misreading of the material evidence clearly empowered the High Court Division to reverse the findings arrived at by the Courts of fact. Golam Moula Vs. Gourpada Das, 17 BLD (AD) 310. Section 100, 103 High Court was incompetent to disturb the finding of fact arrived at by the final Court of fact on consideration of evi- dence on record inasmuch as such erred in law in disturbing the finding as to adverse possession arrived at on the basis of the evidence and that disturbing the finding of fact arrived at by the courts below. Hriday Ranjan Dey vs Niranjan Dey (Mohammad Fazlul Karim J)(Civil) 124 Sections 102,103, 104 Praying for declaration of title and re- covery of khas possession of the suit property .....(2) Those applications can not be entertained at this belated stage as those documents are not filed with written statement and those are not necessary for proper adjudication of the appeal and for amendment/filing of additional written statement and those documents are not necessary for the purpose of de- termining the real question in controversy between the parties." Md. Nurun Nobi vs. Khondaker Moklesur Rahman (Shah Abu Nayeem Mominur Rahman J) (Civil) 7 ADC 917 Section 107 The trial Court after consideration of the evidence on record and upon comparing the signatures of Abdul Wazed appearing in the deed of agreement with other admitted signatures came to the conclusion that the signatures appearing in the deed with his admitted signatures tally with each other and that he executed the agreement upon receipt of the advance money. Dream Land Properties vs. Hazi Abdul Wazed (S.K. Sinha J) (Civil) 9 ADC 667 Section 107 On conclusion of hearing of the suit the trial Court by its judgment and decree dated 29.08.2007 decreed the suit. Against the judgment and decree of the trial Court, the contesting defendants filed Title Appeal No.5 of 2002 before the District Judge, Patuakhali. The learned Joint District, 2nd Court, Patuakhali who heard the appeal by his judgment and decree dated 10.04.2003 allowed the appeal and dismissed the suit. Being aggrieved by the judgment and decree of the appellate Court the plaintiff filed Civil Revision No.3306 of 2003 before the High Court Division. Noni Gopal Das vs. Dinesh Chandra Das (Md. Abdul Wahhab Miah J) (Civil) 8 ADC 739 Section 107- (Power of appellate court) The Appellate Division is of the view that justice would be best served to both the parties if the appeal is remanded to the Appellate Court of hearing afresh giving chance to the plaintiff to amend the plaint by impleading the necessary party, namely, Roads and Highway and the other necessary parties, if there be and also bringing in hotchpotch the entire property of the khatian. Accordingly, Appellate Division sent the appeal back to the Appellate Court for hearing it afresh. ....Jahed Ali Sardar & others =VS= Malin Chandra Dhali & others, [1 LM (AD) 78] Section 107 Mr. Abdul Motin Khashru has argued that the High Court Division has com- mitted wrong in setting aside the judgment of the lower appellate court and thereby restoring the judgment of the trial court without taking into consideration at all the fact that in this suit for partition the plaintiffs did not at all give any account as to how the recorded tenants got the suit property and how they acquired the specific quantum of land as stated in the plaint; that though in the plaint it has been stated that each of the five recorded tenants has 28 acre of land in the divisible property but no where in the plaint or in the deposition it has been stated as to how all the recorded tenants acquired this particular quantum of land. Md. Muhibur Rah- man Muyeeb vs. Md. Meher Ali (Naz- mun Ara Sultana J) (Civil) 9 ADC 294 Section 107, 117 The two trucks belonging to the plaintiffs were seized by the police in connection with the criminal case and as such the trucks were detained and the plaintiff's got the trucks released from the police custody by order of the court in which the criminal case is still pend- ing and in our opinion the High Court Division rightly held that the plaintiffs were not entitled to claim any amount on this count. Abdul Quddus vs Latif Bawany Jute Mills Ltd. (M. M. Ruhul Amin J)(Civil) 2ADC 938 Section 107 It is needless to mention here that the power of appellate court can be exercised by the revisional court in appropriate cases and in our view, the present case is one of such nature. In this connection it is to be noted that if the matter was sent back on remand to the appellate court, it would have consumed much more time in the disposal of the matter and in that view of the matter also the impugned judgment of the High Court Division does not suffer from any legal infirmity. Meher Banu & Haji Abdul Barek vs Abdul Barek and Muslim Bepari Meher Banu (M.M. Ruhul Amin J Civil) 2ADC 540 Section 107 An Appellate Court shall have power to determine a case finally and to take additional evidence or to require such evidence to be taken and subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits. Meher Banu and others vs. Abdul Barek and Muslim Bepari (M.M. Ruhul Amin J) 4 ADC 471 Cheque in question showing payment of Tk. 70,00,000/- having been dishonored the respondent No.1 appears to have played a fraud upon the court falsely submitting that a sum of Tk. 70,00,000/- being paid. United Commercial Bank Limited vs. M/S. Wonderland Holdings Ltd (Amirul Kabir Chowdhury J) (Civil) 4 ADC 474 Code of Civil Procedure [V of 1908] Sections 107(2) and 115 read with Order 41 Rule 31-Before proceeding ex-parte the court must be satisfied that there is due service of summons upon the defendant. The court cannot proceed for ex-parte without being satisfied that summons had been duly served upon the defendant and if the court proceeds for an ex-parte decree the same will suffer from the patent error of law. A decree has been passed against a dead person, as there is no doubt that any decree passed against a dead man in a nullity. The High Court Division has considered the submission of the learned Advocates, perused the impugned Judgment and Decree, and material evidence on record, and on perusal of the whole order-sheet up to date of the trial court it cannot be held that summons was duly served upon the defendants 2 and 5 either by the process server or by registered post rather summon was returned un-served from the defendant No. 2 due to her death but the plaintiff did not take any steps for bringing the heirs of that said defendant No. 2 on record and instead of that, obtained a decree by concealing the aforesaid facts from the court. In view of all the discussions made above the High Court Division is of the considered view that the judgments of the courts below cannot be allowed to be maintained. The Rule got merit and the Rule, therefore, succeeds. In the result, the Rule is made absolute. Munshi Aynal Hossain Vs. Most. Lal Mati Bibi and others (Civil) 18 ALR (HCD) 110-112 Code of Civil Procedure [V of 1908] Section 107 read with order 20 Rule 5 The Appellate Court being the last Court of fact committed error of law without arriving at its independent findings upon discussing all the issues separately as per provision of law as contain in order 20 Rule 5 read with section 107 of the Code of Civil Procedure. The High Court Division held that in suits in which issues have been framed, the Court shall state its finding or decision with the reasons therefore, upon each separate issue. As such the lower Appellate Court disposed of the title in contrary to the pro- visions of law as contain in order 41 Rule 31 of the Code of Civil Procedure. Sekender Ali -Vs. Mozammel Sarder and others (Civil) 17 ALR (HCD) 159-164 Code of Civil Procedure [V of 19081 Section 107-When there is по necessity of taking an additional evidence, the High Court Division can dispose of the Rule on merit without remanding the case to the appellate Court. The Appellate Division observed that the High Court Division without altering the findings of facts arrived at by the Courts below remanded the case to the appellate Court. Such a judgment is unwarranted and the Appellate Division does not approve of delivering such judgment. The appellate Court held that it was not the duty of the revisional Court to consider the evidence on record usurping the power of the appellate Court. This finding of the High Court Division is also not correct. When there is no necessity of taking an additional evidence, the High Court Division can dispose of the Rule on merit without remanding the case to the appellate Court. In this connection reliance may be placed on the case of Attor Mia Vs. Most. Mahmuda Khatun Chowdhury, 43 DLR (AD) 78, in which, it has been held that the High Court Division as a revisional Court, was not justified to send the case back on remand to the trial Court for fresh decision on the evidence on record, without any direction to take additional evidence, when the Court itself was competent to decide the issue involved as the evidence on record was complete. In the light of the finding made before, the Appellate Division finds substance in this appeal, Accordingly, the appeal is allowed. Sree Karunamoya Paul and another. Vs. Muklesur Rahman and others (Civil) 19 ALR (AD) 142-144 Code of Civil Procedure [V of 1908] Section 107 read with order 41 It is now settled that an appeal is the continuation of the original proceeding because of the fact that all rules and procedures applicable to the trial court are equally applicable to the appellate court in view of section 107 read with order 41 of the Code. The Appellate Division held that the proposed amendment is necessary for the purpose of determining the real questions in controversy between the parties and though it is made at a belated stage, the High Court Division has committed no error of law in allowing the amendment. However, it ought to have afforded the defendants to file additional written statement. More so, the High Court Division ought to have awarded cost at the time of allowing the prayer. The plaintiffs have made three amendments at the trial stage and from their conduct, it is apparent that there is neglect or laches in pursuing the suit properly, and therefore, the amendment should be allowed subject to payment of costs. While the Appellate Division maintains the order of the High Court Division, the Appellate Division awards a cost of Tk. 50,000/- to be paid by the plaintiffs to the defendants within 4 (four) weeks from the date of receipt of the order, failing which, the order shall stand vacated. The defendants can file additional written statement within four weeks of payment of cost in default they will be debarred from filing the same. The appeal is dismissed with cost as above. Md. Atiqur Rahman Vs. Khan Mohammad Ameer and others (Civil) 17 ALR (AD) 106-111 Code of Civil Procedure [V of 1908] Section 107- Remand The appellate Court being the last Court of fact is equally in a position to do what he has directed the trial Court to do. Hence, there is no any reason to send the case back to the trial Court. The appellate Court is competent to call for the relevant records in order to ascertain the existence of plot in C.S. Khatian, and also to give a finding on the Commission Report, as the last Court of fact. The Appellate Division is of the view that the ends of justice would be sufficiently served if the case is now sent to the appellate Court in order to allow the parties to prove the respective khatians by producing in Court the relevant volumes. In view of the above facts and circumstances of the case, the judgement and order of the High Court Division as well as the judgement and decree of the appellate Court are hereby set aside. The case is remanded to the appellate Court only for the purpose of allowing the parties to prove their respective khatians by calling the relevant record volumes as well as for the appellate Court to give its finding on the commission report which is on record. Abdul Gofran and others Petitioners -Vs- Hafezer Rahman and others Respondents (Civil) 16 ALR (AD) 127-129 Section—114, Order 47 Rule 1(1) Review—the power of review as visualized in section 114 C.P.C. is to be traced to Order 47 Rule 1(1) of the Code, which contains the prescribed conditions and limitations set by law, A review is never permissible unless the case falls within the purview of the powers contained in Order 47 Rule 1(i) C.P.C. A review is never contemplated to be a re-hearing of a case for re-opening a closed chapter. It is available only under certain well-defined circumstances, namely, where some important evidence has been discovered, which could not, inspite of due diligence, have been known to the party to be produced at the time of hearing or the Court has overlooked some important question of fact and law, which would have a direct bearing on the decision of the case, or there is otherwise some apparent mistake. or error on the face of the record. The ground that the Court has fallen into an error in deciding an important question or that an important ground was not urged at the original hearing, cannot be the ground for review. The finality or sanctity that attaches to a judgment or order passed by a competent Court on hearing the contending parties cannot be lightly interfered with in review. Sree Parimal Chandra and others Vs Mst. Shaheda Begum and others, 20 BLD (HCD) 55. Section—114, Order 47 Rule 1(1) Review—the power of review as visualized in section 114 C.P.C. is to be traced to Order 47 Rule 1(1) of the Code, which contains the prescribed conditions and limitations set by law, A review is never permissible unless the case falls within the purview of the powers contained in Order 47 Rule 1(i) C.P.C. A review is never contemplated to be a re-hearing of a case for re-opening a closed chapter. It is available only under certain well-defined circumstances, namely, where some important evidence has been discovered, which could not, inspite of due diligence, have been known to the party to be produced at the time of hearing or the Court has overlooked some important question of fact and law, which would have a direct bearing on the decision of the case, or there is otherwise some apparent mistake. or error on the face of the record. The ground that the Court has fallen into an error in deciding an important question or that an important ground was not urged at the original hearing, cannot be the ground for review. The finality or sanctity that attaches to a judgment or order passed by a competent Court on hearing the contending parties cannot be lightly interfered with in review. Sree Parimal Chandra and others Vs Mst. Shaheda Begum and others, 20 BLD (HCD) 55. Section—114, Order 47 Rule 1(1) Review—the power of review as visualized in section 114 C.P.C. is to be traced to Order 47 Rule 1(1) of the Code, which contains the prescribed conditions and limitations set by law, A review is never permissible unless the case falls within the purview of the powers contained in Order 47 Rule 1(i) C.P.C. A review is never contemplated to be a re-hearing of a case for re-opening a closed chapter. It is available only under certain well-defined circumstances, namely, where some important evidence has been discovered, which could not, inspite of due diligence, have been known to the party to be produced at the time of hearing or the Court has overlooked some important question of fact and law, which would have a direct bearing on the decision of the case, or there is otherwise some apparent mistake. or error on the face of the record. The ground that the Court has fallen into an error in deciding an important question or that an important ground was not urged at the original hearing, cannot be the ground for review. The finality or sanctity that attaches to a judgment or order passed by a competent Court on hearing the contending parties cannot be lightly interfered with in review. Sree Parimal Chandra and others Vs Mst. Shaheda Begum and others, 20 BLD (HCD) 55. Section 115(1), Order IX Rule 13 Order V Rule 3 The granting of full relief by way of disposing a revisional application summarily without issuing any Rule and behind the back of the affected opposite party is neither legal nor fair. The learned Judges of the High Court Division appear to have committed a serious error of law in passing the impugned order giving the defendant respondent the full relief in a summary manner without giving any opportunity to the plaintiffs to place their case in support of the trial court's order. Danish Ali vs Mrs. Sakina Bai & ors ( Mohammad Abdur Rouf J) (Civil) 2ADC 341 Section 115(1)-District Judge acted not a persona designata but a court subordinate to the High Court Division. Since the Election Appellate Tribunal is not a court, the High Court Division committed error of law in entertaining the revisional applications exercising its revisional, jurisdiction under section 115(1) of the Code. Rabiul Islam (Md) vs Asadul Haque (Md) (Civil) 71 DLR (AD) 386 Section 115(1)- Court referred to in 115(1) of the Code is a regular Civil Court as contemplated in section 3 and 9 of the Code. The jurisdiction, which has been given to the tribunal to exercise in the capacity of tribunal and not a regular civil Courts. Even if the tribunals are presided over by the Judges of regular Courts and exercising the judicial power and discharging judicial functions, that does not make any difference as they still remain as tribunals only. Rabiul Islam (Md) vs Asadul Haque (Md) (Civil) 71 DLR (AD) 386 Section 115 Without reversing the findings of the courts below on he grounds mentioned in section 115 CPC the High Court Division has no jurisdiction to disturb the final findings of facts. It cannot superimpose itself as a third court for fresh appreciation of evidence. That is not its function in the revisional jurisdiction. Md. Shaha Alam vs Musammat Farida Begum (Mohammad Abdur Rouf J)(Civil) 2ADC 343 Section 115- Jurisdiction means "the entitlement to enter upon the enquiry in question." The word is a verbal cast of many colours. The jurisdiction of the High Court Division in revision is a limited one. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. Section 115 empowers to satisfy the High Court Division on matters that (a) the order of the Subordinate Court is within its jurisdiction (b) the case is one in which the Court ought to exercise jurisdiction, and (c) in exercise of jurisdiction the Court has not acted illegally, that is, in breach of some provisions of law, or with material irregularity by committing some error of procedure in Course of the trial which is material in that it may have affected the ultimate decision. ...Monowara Begum(Most.) VS Malanch Bibi, [8 LM (AD) 102] Section 115(1)- Permanent Injunction It is a well settled legal proposition that the Appellate Court is the last Court of fact and if the Appellate Court comes to a finding of fact on consideration of the evidence on record that cannot be disturbed or reversed by the High Court Division in exercising jurisdiction under section 115(1) of the Code of Civil Procedure, unless it can be shown that the finding of the Appellate Court is perverse or contrary to the evidence on record or based on misreading of the evidence on record or on misconception of law. It is also a settled legal principle that in a suit for permanent injunction title can be looked into incidentally and the prime consideration is whether the plaintiff has got exclusive possession in the suit land. Keeping in view the above settled legal propositions, let us see whether the High Court Division rightly interfered with the judgment and decree of the Appellate Court...... Karim Khan =VS= Kala Chand, [3 LM (AD) 236] Section 115(1)- Wasiyatnama- The High Court Division cannot re-assess and sift the evidence and substitute the finding of the Appellate Court by its own. Unfortunately, the High Court Division in complete denial of the said legal principle itself embarked upon to assess the evidence and gave its own finding that there was no wasiyatnama by Kulsum Bibi. Therefore, the right of the plaintiff in the suit property as the daughter of Yakub Ali was not lost and she was entitled to get her share thereto. The High Court Division did not at all say why the finding of fact arrived by the Appellate Court, the last Court of fact, affirming those of the trial Court that Kulsum Bibi bequeathed her property by the wasiyatnama and the same was acted upon by Yakub Ali, her only surviving son, and the beneficiaries of the wasiyatnama are in possession of the respective land pursuant to the dictate of the wasiyatnama was wrong. Therefore, the impugned judgment and order cannot be sustained and that must be set aside. ..... Noor Mohammad Howlader (Md.) =VS= Kulsum Begum (Mst.), (5 LM (AD) 363] Section 115(1)- When the judgment impugned before the High Court Division was the judgment of reversal, it was its obligation to go through the record and see whether the Appellate Court reversed the decision of the trial Court adverting its findings and reasonings on proper consideration of the evidence. The Appellate Division has gone through the judgments and decrees of the Courts below and the impugned judgment and order. It frankly speaking, on reading the impugned judgment and order, Appellate Division failed to understand what the High Court Division wanted to say, except that it made the Rule absolute. The entire judgment is absolutely confusing and full of repetition. Further when the judgment impugned before the High Court Division was the judgment of reversal, it was its obligation to go through the record and see whether the Appellate Court reversed the decision of the trial Court adverting its findings and reasonings on proper consideration of the evidence, The High Court Division did nothing, that being the factual and the legal position, Appellate Division finds no option but to send the revision back to the High Court Division for hearing afresh and dispose of the same on merit in accordance with law on the evidence on record. .....Mst. Tahmina & others =VS= Zafar Ali & others, [1 LM (AD) 251] Section 115(1)- The Appellate Division held that the High Court Division totally failed to exercise the jurisdiction as vested under section 115(1) of the Code of Civil Procedure. The Appellate Division found that the two Courts below took two reverse views about the title and possession of the respective parties in the suit land, so before the High Court Division, the judgment and decree impugned was the judgment and decree of reversal. Therefore, it was incumbent upon the High Court Division to consider and sift the evidence on record with reference to pleadings of the parties and see whether the Appellate Court reversed the findings of the trial Court with reference to the evidence on record in accordance with the dictate of law, but unfortunately, the High Court Division did not make any exercise whatsoever in that direction and it, without applying its judicial mind just discharged the Rule by making general superficial observations. And as such Appellate Division sent back the matter back to the High Court Division for hearing the revision afresh and disposed of the same on merit in accordance with law on the evidence Muktejuddin (AD) 175] on record. VS Alauddin, [1 LM Section 115(1)- The revision is sent back to the High Court Division for hearing afresh- This Court is to send the revision back to the High Court Division for hearing afresh and dispose of the same on merit in accordance with law on the evidence on record. Accordingly the petition is disposed of in the following terms: The impugned Judgment and order of the High Court Division is set aside. The revision is sent back to the High Court Division for hearing afresh and dispose of the same in accordance with the law on the evidence on record. In no case, the High Court Division shall the matter back to either of the Court below. Momtaz Ahmed Sowdagar VS= Iddgaon Bus Station Jame Masjid, [3 LM (AD) 414] Section 115(1)- Revision back to the High Court Division for afresh hearing- How a learned Judge after recalling the order making a matter out of list hear the same on that the very date and dispose the same, in the absence of the petitioner. The High Court Division Rules permits a particular Judge to recall the unsigned order, but that must be done with notice to the parties. We find no other alternative but to send the revision back to the High Court Division for hearing afresh and for disposal of the same in accordance with law on the evidence on record. Moulavi Abdul Wahab VS Nur Ahmed, [3 LM (AD) 418] Section 115(1)- The revisional jurisdiction of the High Court Division is limited to addressing the issue as to whether there was misreading or non- reading of evidence or non-consideration of material facts by the Courts below- Declaration of title and recovery of khas possession in respect of the suit land described in the schedule of the plaint- The High Court Division in discharging the Rules upheld the concurrent findings of facts of the Courts below. Concluded that the relevant evidence both oral and documentary have been properly assessed. The revisional jurisdiction of the High Court Division is limited to addressing the issue as to whether there was misreading or non-reading of evidence or non- consideration of material facts by the. Courts below, and the High Court Division did not find any such illegality or infirmity. We do not find any illegality or impropriety in the impugned judgement and order of the High Court Division. The civil petition for leave to appeal is dismissed. ...Momtaz Begum =VS= Shahabuddin, [9 LM (AD) 244] Section 115(1), Order 1, Rule 9, 13 A Since the defendants in the background of the material as relied upon before the High Court Division had the opportunity before the trial Court as well as in the appeal to take the plea that the suit was bad for defect of parties and they having had not done so before the courts below they thereby in fact waived the objection as regard the non-joinder of parties. Sufia Khatun vs Amin Hossin Mondal (Md. Ruhul Amin J)(Civil) 2ADC 360 Section 115 Since the Court of fact on detail discussion of the evidence on record held that the plaintiff's failed to prove their exclusive possession in respect of the land in suit and that the last court of fact also held that the land in respect whereof decree for permanent injunction has been sought is unspecified and as the said finding did not suffer from any misreading or non-consideration of the evidence or in other words any legal evidence was not left out in making the decision in the case by the Court of fact the High Court Division was in serious error in reversing the concurrent finding of fact of the courts below. Md. Habibullah vs Mr. Sher Ali Khan (Md. Ruhul Amin J) (Civil) 2ADC 405 Section 115 It can be gainsaid that a finding of fact, whether concurrent or not, arrived at by the lower appellate court is binding on the High Court, as a revisional court except in certain well-defined exceptional circumstances, such as non-consideration or misreading of material evidence affecting the merit of the case. Aminatullah vs Ali Mohammad Bhuiyan (Bimalendu Bikash Roy Choudhury J)(Civil) 2ADC 517 Section 115, 121, 151 order 41 rule 19 Admittedly in appeals, it is not necessary for the appellant to appear on all dates of hearing of the same the responsibility lies with the filing advocate and here when the learned Advocate failed to appear the appeal was dismissed for default. So laches not on the part of the appellant but it is a laches of the Advocate for the appellant and appellant should not suffer. Aminul Haque Shah Chowdhury @ Aminul Shah Chowdhury VS ors. vs Abdul Wahab Shah Chowdhury ors. (Mahmudul Amin Choudhury J) (Civil) 2 ADC 548 Section—115 A revisional Court cannot go into a question of fact unless the petitioner is able to show that the concurrent finding of fact arrived at by the Courts below is perverse or it is based on no evidence or on misreading of evidence. Abdur Razzak Ahila Khatun and others 13 BLD (HCD) 610. Section—115 Mere irregularity or illegality in the exercise of jurisdiction will not render the subordinate Court’s judgment without jurisdiction. The party seeking revision is to show further that there was violation of statutory provision or principle of natural justice which rendered the proceeding coram-non-judice. A reference to the provision of section 115 of the Code would show that every irregularity or even illegality in the exercise of jurisdiction does not render the judgment void. [Per Mahmudul Amin Chowdhury, J. (dissenting)] Most Rokeya Begum Vs Md Abu Zaher and others, 20 BLD (AD) 90. Ref: Mohammad Swaleh and another Vs. MIs. United Grain & Fodder Agencies,1964 PLD(SC)97. Akrab Au and ors. vs. Zahiruddin Karl and others, 30 DLR(SC) 81. Shahzada Muhammad Umar Beg Vs. Sultan Mahmood Khan and another, PLD197O (SC)139. Ramjan Khan alias Ramjan Ali Khan Vs. Obaidul Huq Chowdhury and others, 28 DLR(AD)57, Sona Mia s. Abdul Khaleque reported in 10 BLD 209, Kurshid Ali and others Vs. Noorjahan Bewa and others, 15 BLD82, Haidernessa and another Vs. Monowara Begum and others, 16 BLD(AD) 280, Hazari Bala Sana and others Vs. Niron alias Niranjan Mandal and others, 17 BLD (AD)294, Md. Golam Sarwar Vs. Md. Liakat, 18 BLD(AD)15; Abdul Majid Howlader Lehazuddin reported in 48 DLR(AD)160; Akhlasur Rahman and ors. Vs. Safarullah and others, 14 BLD(AD)20; Fazaruddin Vs. Maijuddin and others, 44 DLR(AD)62—Cited. Section—115 It is a settled principle that the findings of fact, whether concurrent or not, arrived at by the lower appellate court, which is the final court of fact, is binding on the High Court Division, as a revisional court except in certain well-defined exceptional circumstances, such as non-consideration or misreading of the evidences affecting the merit of the suit. In the instant case the court of appeal failed to consider the exhibit-B series of the defendant by which they paid rent all through whereas there is no paper to show, after the alleged auction purchase that the plaintiffs got mutation in their favour, the plaintiff also failed to record the suit land in the MRR Khatian and also they did not pay any rent and these prove that the appellate court did not take notice of all the documentary evidence on record to find out the possession of the parties correctly and as such an interference by the revisional court is called for. Md. Nizamuddin and others Vs Rahima Bewa and others, 20 BLD (HCD) 144. Ref: Keramat Ali and ors. Vs. Mohammad Yunus Hazi and ors. 15 DLR(AD)120; Court of Words of Jajhat Vs The Saidpur Commercial Bank Ltd. 5 DLR282; Moulvi Abdus Samad Mollik Vs. Pran Gour Basak and ors, 7 BLD (AD)25—Cited. Section 115 & 115(1), Order 39, Rules 1&2 Praying for declaration that the judg- ment and decree to Title Suit No.298 of 1980 was not binding upon the plain- tiffs. Under order 39, Rule 1 read with section 151 of the Code of Civil Procedure Praying for temporary injunction against the defendant restraining them from entering into the suit land by force or from constructing boundary wall or cutting away_trees from the suit land. Divisional Forest Officer, Dhaka Forest Division, Dhaka and others -vs- Zahid Maleque and another (Amirul Kabir Chowdhury J) (Civil) 3ADC 876 Section 115(1) Seeking declaration as to legality of enrolment of the Waqf Estate and also challenging legality of inclusion of property in the 2nd schedule of the plaint as Waqf Property. Serjuddowla Sowdagor vs Administrator of Waqf & others (M.M. Ruhul Amin J)(Civil) 3ADC 677 Section 115(1) Order 39 Rules 1 and 2 Order of mandatory in junction is very sparingly allowed. It can be granted if any body is dispossessed in violation of the order of injunction but in the instant case there was no order of status quo as alleged by the plaintiffs and that the plaintiff respondents having been evicted by the law enforcing agency at the instance of Dhaka City Corporation, the lawful owner of the property, and that the plaintiff respondents having not been evicted in violation of courts order/ or any order of injunction or status quo, the High Court Division erred in affirming the order of mandatory injunction passed by the trial court. Fulbaria Adrasha Market Dokandar Malik Samity & anr -vs-Fulbaraia Adrasha Market Khatigrastha Dokandar Kallyan Samabay Samity Limited and others (Amirul Kabir Chowdhury J)(Civil) 3ADC 901 Section 115 The High Court Division has exceeded its jurisdiction in setting aside the con- current finding of facts arrived at by the courts below after due consideration of the evidence on record. Sheikh Abdur Rashid vs Alhaj Akram Hossain (Md. Fazlul Hauge J) (Civil)2ADC 139 Section 115(1). Order 7 Rule 11. Mere statement in an application for rejection of the plaint is not enough, it requires investigations upon framing an issue as to whether the suit is barred by the Principle of res-judicate and the same has to be denied on evidence being adduced. Most Fatema Khatun vs Md. Golam Mostafa (Syed J. R. Mudassir Husain J)(Civil) 2ADC 146 Section 115 That the defendant has a right to file a written statement under Order VIII Rule 1. C. P. C as this procedural right is not inconsistent with the Adalat Act, but the defendant has no procedural right to claim a set off or counterclaim under Rule 6 in a suit under the Adalat Act in whatever form, as Rule 6 is inconsistent with the jurisdictional provisions of the Adalat Act. The High Court Division was right in its reasoning that what can- not be done directly cannot be done indirectly. Sultana Jute Mills Ltd. vs Agrani Bank (Mustafa Kamal J)(Civil) 2ADC 149 Section 115(1) The Heba deed No. 15294 dated 10.11.1986 made in favour of Berafun Nessa contains description of land situated both in Gomostapur and Nawabgani and hence was legally registered at Nawabganj Sub-registry office and as such the High Court Division erred in holding that the registration of the deed No. 15294 dated 10.11.1986 is void because it was not registered at Gomostapur Sub-registry office. Md. Raisaddin Biswas & others vs. Md. Mazed Ali Being dead his heirs-Sayera Bewa, wife of late Mazed Ali & others (M.M. Ruhul Amin J) (Civil) 3ADC 945 The Code of Civil Procedure Section 115(1) Claiming pre-emption under Section 96 of the State Acquisition and Tenancy Act and Section 24 of the Non-agricul- tural Tenancy Act claiming to be con- tiguous owner of the case land. Abdul Quddus-vs-Roqib Ali being dead his legal heirs: Aziruddin and others (Amirul Kabir Chowdhury J)(Civil) 3ADC 888 Section 115(1) From the evidence we find that the plaintiff has categorically deposed that he has been in possession on the basis of lease granted through receipt and that the lease has been supported by the receipt issued at a time when the plain- tiff was present and the same has been supported by P.W.2. Defendant No. 1 examined on commission stated that he has transferred the suit land in favour of the plaintiff on the basis of receipt which was written in presence of the witnesses and delivered the huts to the plaintiff on receipt of the consideration money and duly signed the receipt evidencing receipt of the amount on 14.2.49. Since the receipt is not a deed of title could not confer title to the plain- tiff Under the provision of section 54 of the Transfer of Property but the uninterrupted adverse and hostile possession of the plaintiff over a period of 12 years from the date of 14 February 1949 upto 1961 i.e. the period prior of alleged declaration of property as enemy properly, the plaintiff has acquired title by adverse possession. Sree Santipada Datta ors. vs Satish Chandra Das (Mohammad Fazlul Karim J)(Civil) 2ADC 211 Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this ques- tion, no absolute fromulae or acid tests, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the rele- vant indicia, the courts are usually guided by these circumstances; (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour, (4) the position of the parties and the relationship, if any between the claimant and the alleged banamder. (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale. Rupe Jahan Begum vs Lutife Ali Chowdhury (Bimalendu Bikash Roy Choudhury J) (Civil) 2ADC 49 Section 115 Order VI rule 17 C.P.C. Provides that the court may any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such term as may be just, and necessary for the purpose of determining the real ques- tion in controversy between the parties. The proposed amendment would bring into play the question whether during pendency of the suit the plaintiff has ille- gally been dispossessed by the defendant No. I from the suit land, which would warrant a decosopm the evidence was to be adduced by the parties to prove or disprove such fact. It is too early and also unwarranted to express any opinion by the court to the effect that the plaintiff instituted the suit falsely claiming pos- session in the suit land and as such their prayer for recovery of possession there- in if is allowed will change the nature and character of the suit. Shahajadpur Central Co-operative Bank Ltd. Vs Md. Majibur Rahman (Mohammad Abdur Rouf J)(Civil) 2ADC 173 Section 115(1) The learned Single Judge of the High Court Division erred in law in setting aside the judgment and decrees of the courts below based on concurrent findings of fact and thereby exceeded the revisional jurisdiction under section 115(1) of the Code of Civil Procedure which resulted in an error in the deci- sion causing failure of justice and in such view of the matter the findings and decisions as arrived at by the High Court Division can not be sustained in law and the same are liable to be set aside. Aroti Rani Paul vs Sudarshan Kumar Paul (Syed J. R. Mudassir Husain J)(Civil) 2ADC01 23 Section—115, Order XLI Rule 31 When the Court of the first instance after considering the evidence and demeanour of the witnesses comes to a finding, which has been reversed by the appellate Court without giving due consideration on the proper aspects of the case, there cannot be any reason why the finding of the lower appellate Court should not be set aside. Fatema Khatun Vs. Fazil Mia, 21 BLD (HCD) 14. Ref: Federal Radio Commission G.W. Ply C.W. Vs. Bater, 1922 T.C. 231; Rani Hemanta Kumari Debi Vs. Brojendra Kishore Roy Chowdhury, (1889—90) L.R. 17 l.A. 65; Shan Karrao Vs. Sambhu, AIR 1940 F.C. 192; Sree Meenakhi Mills Limited Maduari Vs. Commissioner of Income Tax Madrass, PLD1957(SC)(India) 188; Nawar Mohammad and another Vs. Shahzada Begum and another, PLD 1 974(SC)22; 1 983BLD(AD)342; Radha Krishna Vs. Muraka Das, 36 DLR(AD) 253; Korshed Alam alias Shah Alam Vs. Amir Sultan Ali Hyder and another, 35DLR (AD) 133—relied. Section 115(1) That it was barred by limitation being filed beyond 4 years from the date of knowledge of the wrong entry in the S.A. khatian and that the plaintiffs could not prove their right, title, interest and possession in the suit land and that the contesting defendants also could not prove the title of their vendor Rajendra Shil in the said land. Shamsur Nessa vs Md.Shajahan Ali (Syed J.R. Mudassir Husain J)(Civil) 3ADC 186 Section 115, Rule 13, Order IX Whether in view of the decision of this Division that interest in a monthly ten- ancy is heritable and the fact that the exparte decree obtained in O.C. Suit No. 29 of 1972 has no direct bearing on landlord-tenancy relationship. Mahmuda Khatun vs 1. Abul Younus Talukder ors, (Muhammad Abdur Rouf J) (Civil) 3ADC 151 Section—115 Per Mustafa Kamal, J: There was no prayer for amendment of the plaint, not even before the Appellate Division. If in revisional jurisdiction the High Court Division rides roughshod over both substantive and procedural law then a litigant does not know what will happen to his case, what course will it take and what relief will ultimately emerge. This is a travesty of justice, as we know it. The suo motu exercise in the manner it was done, besides being without jurisdiction was an act of extreme judicial indiscretion. Per Bimalendu Bikash Roy Chowdhury, J: Plaintiff No. 1 Shamsun Nahar Be- gum never appealed against the decree of the original court nor did she take any appeal therefrom. She did not also prefer any revision. In such circumstances the learned Judges of the High Court Division had no jurisdiction to give her any further relief beyond what was granted by the first two courts below. Practice and Procedure Per A.T.M. Afzal, CJ: The High Court Division dealt with the matter very casually as if it was disposing of a Lawazima matter without the need of any assistance. This was never the practice of a superior Court which ever acted in such a light-hearted way in a serious matter like this nor should it ever do it for the sake of, if not anything else, its own credibility. Md. Hefzur Rahman Vs. Shamsun Nahar Begum and another, 19 BLD (AD) 27. Ref: ILR 25 (Cal) 9 ; PLD 1960 (Lahore) 1142; Shah Bano Case, AIR 1985(SC)945; Hedaya by Charles Hamilton (Book IV, Chapter XV, Sec. 3, p. 45) and Digest of Mohammadan Law (compiled and translated from authorities in the original Arabic) by Neil B E Baillie (Part Second, Book II, Chapter VII Section Sixth Pp 169—170); MulIa. Principles of Mahomedan Law (Fourteenth Ed.) para 279; Dr. Paras Dewan, Muslim Law in Modern India, 1982 Ed. p. 130; Imam Shafei on Al Quran (11:241) commentary on the Holy Quran by Ibn Katheer (d 1373 AC Damas Cus) Translated by Danial Latifi) and Tafsere Tabare Sharif, 4th Volume, Allama Abu Jafar Tabari (published by Islamic Foundation in 1993); “Divorced Muslim Women in India” by Lucy Carrol; Fatwai-Alamgiri (Indian Ed., 2nd Volume p. 144); Professor Tahir Mahmood, ‘Personal Laws in Islamic Countries’, (2nd Ed. 1995) P. 261-262; AIR 1951(SC) 177; AIR 1991 (SC)409; PLD1978 SC 242; Hamilton’s Translation of Hedaya and Baillie’s Digest of Mohammadan Law; “A Way to Islam” by Mr. Justice Mohammad Gholam Rabbani; Gazi Shamsur Rahman’s wewaex Bmjvgx AvBbi fyi” (Commentaries on codified Islamic Law) at p. 611; I.L.R. 25 Calcutta 449; 9 DLR (1957)455; A.I.R.1929 (Oudh) 527; The petition of Din Mohammad, ILR, Ailahabad series (1883) Volume (V)226;— Referred Section 115 (4), Order 7, Rule 11 Declaration of title, recovery of Khas possession of the suit land, permanent injunction and for some other relief on the averment that a piece of land. M/S Haque's bay vs. Mrs. Jahanara Ahmed ((Md. Joynal Abedin J) (Civil) 5ADC 409 Section 115 (1) The Court below found on evidence that the predecessor of the plaintiffs obtained pattan from the Zaminder Majumder Waqf Estate,on the basis of which record of right has been prepared in their name though the defendant filed Title Suit No.3 of 1991 claiming 50% title thereto on the basis of joint pattan but the suit was withdrawn .The Defendant failed to produce the pattan document and ultimately relied on adverse possession .The plaintiffs have proved the permissive possession of defendant The defendant though alleged the possession since 1984 but the alleged licence was dated 1994 which have been interpolated by the defendant overwriting 1984. The plain- tiffs has proved the defendant possession since 1994 and the suit was filed in 1998. Thus the plea of defendant Nos.I and 3 as to adverse possession falls the ground. The plaintiffs was paid rent in supported of record of rights in their names...(6) Abdul Khaleque VS. Shamsuddin and others (Mohammad Fazlul Karim J)(Civil) 5ADC 412 Section—115 During the transitional period of setting up Benches of the High Court Division outside the capital the case record of the Rule in question was transmitted once from Dhaka to Rangpur and then from Rangpur to Dhaka but no notice of such transmission of case record from Rangpur to Dhaka was given to the opposite party of the Rule i.e. the present appellant. Evidently the learned Judge of the High Court Division failed to consider the uncontroverted assertion of the present appellant as the opposite party in the Rule that he had engaged Mr. Abdul Mannan Khan at Rangpur as his Advocate for the Rule but because of his death in October 1990 he could not know about the fate of his case before 7.8.92 and he came to Dhaka on 15.8.92 and thereafter instructed his lawyer to take steps for re-haring of the Rule. Falguni Majumder Vs Mokbul Hossain Biswas and ors, 19 BLD (AD) 223. Section—115 Family Court Ordinance, 1985, Section—5 The jurisdiction of the High Court Division while hearing a revision petition is purely discretionary and the discretion is to be exercised only when there is an error of law resulting in an error in the decision and by that error failur of justice has been occasioned and interference is called for the ends of justice and not otherwise. Error in the decision of the subordinate Courts do not by itself justify interference in revision unless it is manifested that by the error substantial injustice has been rendered. The decision which is calculated to advance substantial justice though not strictly regular may not be interfered with in revision. Md. Nurul Abser Chowdhury Vs Most. Jesmin Akhter, 19 BLD (HCD) 363. Section—115 read with Order XLI Rule 31 Judgment of affirmance In case of reversal of judgment of the trial court, consideration of the evidence and materials brought on record, as of necessity, is required to be made but in the case of affirmance of the judgment of e trial court, the narration of the entire evidences and reiteration of the reasons given by the trial court are not essential and expression of general agreement with that of the trial court is sufficient. Nurul Abser Chowdhury Vs Most. Jesmin Akhter, 19 BLD (HCD) 363. Section—115 read with Order XLI Rule 31 The object of Rule 31 of Order 41 of the Code is to see that a Judge does not act callously or mechanically. Its purpose is to put the Judge on the right track and to the extent Rule of Procedure can do it, to see that he acts judicially. It enables the High Court to judge whether the appellate Court below had independently considered the case with a consciousness of relevant points which arose for adjudication. Musammat Nurjahan Begum and ors. Vs. Kamaluddin Ahmed, 21 BLD (HCD) 538. Ref: (1995)11 BLD(AD)245; 37DLR79; 35 DLR 216; 6DLR271; 1982BCR(AD)321; AIR 1966 (kerala) 179; PLD1976(SC)785; 14 BLD(AD)229; 13BLD(AD) 120—Cited. Section 115(1)-A suit for recovery of possession the plaintiffs were required to prove that they were in possession of the suit land before the alleged date of dispossession. Asgor Ali vs Noorjahan (Civil), 73 DLR (AD) 119 Section 115(1) To believe or disbelieve a witness is within the domain of the Courts below and the High Court Division in exercise of its revisional jurisdiction cannot interfere in such domain unless there is misreading or non-reading of evidence on record by the Courts below. Abdul Aziz vs Unideb (BD) Limited (Civil), 73 DLR (AD) 156 Section 115(1)-Revisional Court cannot interfere in concurrent finding of facts, when there is no misreading and non-consideration of the material evidence on records. The Court of revision when acts beyond its jurisdiction in setting aside the concurrent findings of fact, this Division obviously interfere in the judgment of the High Court Division to secure the ends of justice. Safaruddin Bhuiyan (Md) vs Md Zahirul Huq Bhuiyan, being dead his heirs-Hazi A Hannan Bhuiyan (Civil), 73 DLR (AD) 360 Section 115(1) read with Order XLI, rule 31-The principle not to interfere with concurrent findings of fact is not a cast-iron practice and that the High Court Division in appropriate cases may depart from that principle where there is any violation of any rule of law or procedure or where there have been misreading or non consideration of evidence affecting the ultimate decision of the Courts below. Ziaul Hasan Tarafder (Md) vs Mir Osman Ali (Civil), 73 DLR (AD) 250 Section—115 Reliance by the courts below on statements made by the petitioner in cross- examination in arriving at its decision goes beyond the pleadings and evidence on record, and the decision is accordingly not sustainable. Kuleshar Barman alias Kakaru Barman v. Sree Naresh Chandra Barman and others, 21 BLD (HCD) 597. Sections—115 and 151 Law is settled that a proceeding under section 151 of the Code cannot be resorted to where there is alternative remedy available for seeking redress. The inherent power conferred under section 151 of the Code can be available in a case where there is no other provision for providing a redress. Power under section 151 of the Code can be invoked by a court only when the court is satisfied that prevention of the abuse of the process of the Court is necessary or when ends of justice demand that the wrong complained of would be remedied. Amirunnessa and others Vs Abdul Mannan and others, 20 BLD (HCD) 14. Section—115 If on a scrutiny of the records it is found that the order passed by the court is ultimately supportable in law but the reasons assigns for passing such an order is not tenable that will be have no bearing upon the merits of the order so passed because on an ultimate analysis of the facts and circumstances of the case it is found that the order passed by the court is in accordance with law. M. Majid Vs Iqbal Bahar Chowdhury and others, 20 BLD (HCD) 285. Section—115 While exercising revisional power under section 115 C.P.C. the High Court Division usually does not go into questions of fact. But when the appellate Court reverses the judgment of the trial Court on non-consideration of the material evidence on record and without adverting to the reasons on which the trial court based its judgment, the High Court Division may be justified in interfering with the finding of facts arrived at by the appellate court when it finds that non-consideration of such evidence has materially affected the decision of the appellate court occasioning failure of justice. Johara Khatun and others Vs. Md. Habib Khan and another, 15 BLD (AD)120. Section—115 Code of Criminal Procedure, Section—476 The Supreme Court (High Court Division) Rules, 1973, Rules 7 and 8 When a revisional application arises out of a proceeding in any Subordinate Court (Civil, Criminal or Revenue) under Section 476 Cr.P.C., it is only a Division Court (Bench) which has been autborised under Rule 8 of the Supreme Court High Court Division) Rules, 1973 to hear such matters. Under Rule 7 it is only the Division Court which can hear an appeal under Section 476B Cr.P.C. It is well-settled that an order under Section 476 Cr.P.C. passed by a Civil Court, if no appeal lies, will be amenable to revision, only under section 115 C.P.C. But because of the special provision in Rule 8, such an application under Section 115 C.P.C. can be heard only by a Division Court. Md. Shamsul Hoque Bhuiyan. Vs. The Institution of Engineers, Bangladesh and others, 14 BLD (AD) 190. Section—115 When an authority acts in accordance with the provision of a law which says that the decision made by that authority is final and the decision is a judicial decision, such a decision, although made final by fiction of law, is amenable to the revisional jurisdiction of the High Court Division under Section 115 C.P.C. Appeal lies to the Arbitration Appellate Tribunal against an order making the award. Bangladesh Vs. Md. Mazibur Rahman, 14 BLD (HCD) 362. Section—115 The Artha Rin Adalat, though a special court, is subordinate to the High Court Division and as such it is amenable to the revisional jurisdiction of the High Court Division under Section 115 C.P.C. Sonali Bank Vs. MIS. Au Tenary and others, 14 BLD (HCD) 457. Section—115 Re-assessment of evidence in reversing a finding of fact Ordinarily the High Court Division in exercise of its revisional authority should not embark upon the function of the lower appellate Court to reassess the evidence on record in reversing a finding of fact. If however, the High Court Division is satisfied that the lower appellate Court has failed to consider any material evidence in reversing a finding of fact arrived at by the trial Court on assigning proper reasons therefore, the proper course in such a case will be to send the case back on remand to the appellate Court for re-hearing the appeal upon proper assessment of the evidence on record. But there may be cases where in the interest of justice, the High Court Division may also consider the evidence itself which was not considered by the lower appellate Court while upholding the decree of the Court of appeal below. Md. Golam Sarwar and others Vs. Md. Liakat Ali and others, 18 BLD (AD) 15. Section—115 Non-Speaking Order Simply because the impugned order was not a speaking order, could not by itself be a valid ground for interference by the High Court Division unless it can be shown that the subordinate Court has committed any error of law “resulting in an error in the decision occasioning failure of justice”. The order of the subordinate Court may have been a bad order and improper one not having given any reasons but before interfering with the same the High Court Division is required to examine whether the same has resulted in an erroneous decision occasioning failure of justice. Abdul Motaleb Vs Md. Ershad Ali and others, 18 BLD (AD)121. Code of Civil Procedure, 1908 Section 115(1) Held; It is the long standing established cardinal principle of appreciation of evidence that finding of facts, whether concurrent or not, arrived at by the trial and lower appellate court is impervious from intrusion in revisional jurisdiction, apart from in certain well definite circumstances such as non-consideration and misreading of material evidence affecting the merit of the misconception, case, misapplication or or misapprehension of law. It has been settled in the legendary case of Srimati Bibhabati Devi Vs. Ramendra Narayan Roy and Others (AIR 1947 PC 19) (Popularly known as Bhawal Raja's case} citing cases of Umrao Begum V. Irshad Husain (1894) L.R. 21 I.A.163; Kunwar Sanwal Singh V. Rani Satrupa Kunwar (1905) L.R. 33 I.A.53, 54 and Rani Srimati V. Khajendra Narayan Singh (1904) L.R. 31 LA. 127, 131 Privy Council the then highest Court of appeal opined that if the appellants failed to show any miscarriage of justice, or the violation of any principle of law or procedure, therefore, see no reason for departing from the usual practice of this Board of declining to interfere with two concurrent findings on pure questions of fact. As the successor of the highest Court this Division still maintains this principle in both civil as well as criminal jurisdiction. The same was dictated in the case of Shamser Ali (Md) and others VS. Mosammat Kafizan Bibi, reported in 44 DLR(AD)231 and reiterated in the case of Md. Habibur Rahman Bhuiyan and Others Vs. Mosammat Galman Begum and Others reported in 2013 33 BLD (AD)93. [31 BLT (AD) (2023) 57] Section—115 Ordinarily in revision the High Court Division should not interfere with the finding of fact arrived at by the lower appellate Court upon re-appreciation of evidence. In the instant case the lower appellate Court reversed the legal finding of the trial court based upon proved facts, namely, that the preemptor had no knowledge of the sale in question prior to 19.1.78 and in so reversing had drawn a wrong conclusion upon proved facts, the High Court Division does not appear to have committed any error of law in restoring the judgment of the trial Court after setting aside that of the lower appellate Court. Anwara Khatun Vs Md. Abdul Hye and ors, 18 BLD (AD) 223. Ref: 46DLR (AD) 187—Cited. Code of Civil Procedure, 1908 Section 115(1) The High Court Division failed to advert to the grounds taken in Revisional application that the Courts below committed error in the decision occasioning failure of justice failing to appreciate that because of the repeal of the Bengal Tenancy Act with the publication of S.A. Khatian under the provisions of the State Acquisition and Tenancy Act prayer for Pre-emption under Section 96 of the later Act as made on the basis of C.S. Khatian published under Bengal Tenancy Act no longer in force was not maintainable inasmuch as the provision and purport of 96 of the Act could not be given retrospective application to the instant sale long after repeal of the Bengal Tenancy Act. As submitted by the learned Counsel for the appellants. Held; In this case, the lower Appellate Court arrived at finding that the pre- emptor Md. Saher Ali was a co-sharer by inheritance of the case holding, the case was not barred by limitation and also not bad from having defect of parties. In addition, the High Court Division too concurred with these findings of the Courts below. - It is the long standing prime principle of appreciation of evidence that finding of facts, arrived at by the lower Appellate Court is immune from interference in revisional jurisdiction, apart from in certain well definite circumstances such as non- consideration and misreading of material evidence affecting the merit of the case, or misconception, misapplication misapprehension of law. [Para-16 & 17] [31 BLT (AD) (2023) 66] Section—115 Order 23, Rules 1(1) Ord 1(2) Formal defect or other sufficient grounds as contemplated under the rules of Order 23 C.P.C. should be liberally construed. There is no legal bar in granting an application for withdrawal of a suit with liberty to sue afresh for the self -same matter even at the revisional stage. Abdul Wahed Mia Vs. Shaira Khatun, 14 BLD (HCD) 83. Ref: 25 DLR, 485 (AD),ALR 1936 All. 450-cited. Section—115 When the concurrent findings of fact arrived at by the Courts below supported by evidence on record and there being no error of law involving the case, there is no scope for interference in revision. Abdur Rashid Vs Shahajahan Ali & ors., 18 BLD (HCD) 455. Ref: 34 DLR 5—Cited. Section—115 In an appropriate case the High Court Division even in suo motu in exercising power under section 115 of the Code to pass necessary order to uphold the legal remedy to given to the litigant. Accordingly, the judgment and decree of the courts below are rectified only to the extent that the document in question is legal and valid one in respect of transfer of 0.30 acres of land but it is void and illegal in respect of remaining portions of the land. Joynal Abedin Vs Maksuda Khatun and others, 18 BLD (HCD) 647 Ref: 43 DLR177; 39 DLR(AD)46; 36 DLR (AD)1; 16 DLR(SC)155; 27 DLR 55— Cited. Section—115, Order XLI Rule 31 The provisions of Order XLI Rule 31 of the Code enjoins that either reversing or affirming the decision of the trial Court it is incumbent upon the appellate court as a final court of fact to consider, assess both oral and documentary evidence in order to come to his own independent finding particularly when it reverse the finding of the trial Court. But in the instant ease the Court of appeal below having failed to comply with the said mandatory provision of law and as such the judgment and decree of the Court of appeal below cannot be sustained in law. Besarat Molla & others Vs Bangladesh, 20 BLD(HCD) 258 Section—115 and Order XLI Rule 31 Non-consideration of material evidence vitiates a judgment calling for interference in revision The judgment of the appellate Court was vitiated by total non-consideration of the evidence of all the 6 witnesses of the pre-emptees proving that the pre-emption case was barred by limitation. The High Court Division was wrong in refusing to exercise its revisional jurisdiction in the case where due to non-consideration of the material evidence on record an erroneous decision was arrived at occasioning a grave failure of justice. Abdul Mazid Howlader Vs. Lehajuddin Howlader, 16 BLD (AD) 197. Section—115 In view of the obvious laches on the part of the petitioner as also the concurrent findings of facts recorded by the first two courts below there being no error of law involving the case, there is no scope for interference in the order of the High Court Division. Additional Deputy Commissioner (Revenue) and Assistant Custodian, Vested Property, Bagerhat Vs Md. Shahajahan Au and others, 19 BLD(AD) 25. Section—115 Concurrent findings of fact — when can be interfered in revision? When findings of fact concurrently arrived at by the Courts below are vitiated by misreading and non-reading of material evidence or misconstruction of a material document a case for interference is made out while exercising revisional power under Section 115 of the Code. In such cases the High Court Division is competent to set aside concurrent findings of fact. Abdur Rahman Sowdagar being dead his heirs and heiresses Moriam Khatoon and others Vs. Elam Khatun and others, 16 BLD (HCD) 462. Ref: 7 DLR6; 13 DLR 710; 41 DLR (AD)3—Cited. Section—115 Concurrent findings of fact The trial Court as well as the appellate Court on due consideration of the evidence on record concurrently found that the plaintiff- petitioner had been given all reasonable opportunities to defend himself and there had been no irregularity in the conduct of the departmental proceeding against him conducted by a Domestic Tribunal. In the absence of any error of law such concurrent findings of fact based on evidence on record cannot be disturbed in revision. Md. Momtazuddin Khan Vs. Managing Director, Agrani Bank. 16 BLD (HCD) 515. Ref: 29DLR(SC)41; 29DLR(SC)39; 31 DLR (AD)272;—Cited. Section—115 The finding of the lower appellate Court on ‘the genuineness of the bainapatra is not binding on the High Court Division as the revisional Court because of non-consideration of the material evidence of P.Ws. I and 3 and non-examination by the plaintiff of an attesting witness to the bainapatra. under such circumstances the High Court Division was right in interfering with the finding of fact arrived at by the lower appellate Court with regard to the genuineness of the bainapatra. Most. Akiman Nessa Bewa and others Vs Harez Ali and others, 17 BLD (AD) 36. Section—115 It is an empowering provision granting discretionary jurisdiction to the High Court Division to correct any error of law committed by any Subordinate Court resulting in an error in the decision occasioning failure of justice. In appropriate cases the High Court Division may even suo motu exercise such jurisdiction to prevent failure of justice. Additional Deputy Commissioner (Revenue) and Assistant Custodian, Vested Property, Sirajganj Vs Md. Abdul Majid and others, 17 BLD (AD) 57. Section—115 Reversing finding of fact in revision and construction of a document Construction of document is a mixed question of law and fact and the same having not been properly construed by the lower appellate Court the High Court Division was within its competence to reverse that finding on giving cogent reasons, although ordinarily the High Court Division does not interfere with a finding of fact while exercising revisional power. In this case the Appellate Division ignored its own practice in this regard by accepting the finding of the High Court Division, which reversed a finding of fact on the genuineness of lease document relied on by the final Court of fact. Md. Nurul Islam and others Vs Bangladesh and others, 17 BLD (AD) 91. Section—115 Every matter required to be decided by a court judiciously on application of mind with reasons in support thereof would be a case decided for the purpose of exercising revisional jurisdiction under section 115 of the Code. To put it differently, section 115 of the Code would be attracted if a court subordinate to the High Court Division has given a decision in respect of any state of facts after judicially considering the same. Sirajul Islam Chowdhury Trawlers Ltd. Vs Sirajul Islam Chowdhury, 20 BLD (HCD) 347 Ref: S. Zafar Ahmed Vs. Abdul Khaliq, PLD1964 (West Pakistan) 149; Bashir Ahmed Khan Vs. Qaiser Ali Khan and ors. PLD 1973 SC 507; Ghulam Muhammad Vs. Sultan Mahmud and ors. 15 DLR SC 172—Cited. Section—115 read with Order XLI Rule 31 Without reversing the findings of facts concurrently arrived at by the Courts below on the grounds covered by section 115 C.P.C. the High Court Division has no jurisdiction to disturb the findings of facts. It cannot superimpose itself as a third Court for fresh appreciation of the evidence on record, this being not the function of a Court of revision. Md. Shah Alam Vs Musammat Farida Begum, 1 7BLD(AD)145 Section 115 (1), Order 41 Rule 31 This Court feel that it should not decide the points raised in this appeal and with all fairness and keeping the spirit of expeditious disposal of the suit, the High Court Division could dispose of the rule upon hearing the parties on the merit of the suit considering the pleadings and the evidence on record together with the point of law involved in the case. Aminul Islam Chowdhury vs Abdul Hamid (Mohammad Fazlul Karim, J) (Civil) 217 Section 115 (1) Suit for declaration of their easement right over the land described in the schedule of the plaintiff and also for permanent injunction restraining the defendant Nos. 1-4 from interfering with right of the plaintiffs as well as the Covillagers to use the said land as pathway stating, inter alia, that the plaintiffs as well as the people of villages Gualan, Kadimpura. Government of Bangladesh vs. Abdul Aziz and others (Md. Tafazzul Islam J) (Civil) 5 ADC 301 Section 115 Mere assertion of the defendants that they did not execute the registered pat- tas of the year of 1952-53 in favour of the plaintiffs' predecessor is not enough. They must seek relief before a competent court for declaration that the pattas were forged and fraudulent but that has not been done. It may be mentioned here that a registered document carries with it a presumption that the executants appeared before the concerned Sub- Registrar and admitted execution the document. The plaintiffs did not make any attempt to rebut this presumption. Gouranga Lal Shed vs Gouranga Chandra Nath (M.M. Ruhul Amin J)(Civil) I ADC 507 Section 115 (1) Praying for declaration that the order of his dismissal passed by the defendant- respondents from the service of the respondent's bank is illegal stating. interalia, that the plaintiff joined the service of International Finance Investment and Commerce (IFIC) Bank Ltd., (in short, the bank) on 27.01.1984 as officer grade II and that he served the bank with sincerity and honesty and on 01.07.1994 was promoted as Assistant Vice President of the Bank and that on 08.06.1997, a pay order was issued from the branch of which he was the manager and that the pay order was signed by the plaintiff and another and that the pay order was for Tk. 1,00,000/- but in fact it ought to have been made for Tk.100/- and that the mistake was inadvertent and was detected later and subsequently the beneficiary of the pay order deposited the entire amount of Tk.1,00,000/- and thus the bank was saved from financial loss but the bank initiated disciplinary proceeding against him and an inquiry committee was constituted who held an inquiry and gave a report and thereafter charge sheets were served upon the plaintiff who submitted replies thereto and the inquiry committee found him guilty and submitted report accordingly on the basis of which the order of removal dated 05.07.1999 was issued. (2) S. M. Iqbal Hossain vs. Managing Director International Finance Investment (Amirul Kabir Chowdhury J) (Civil) 5ADC 485 Section 115(1), Order 9, Rule 13 That during pendency of the said Miscellaneous Case the plaintiff constructed illegally a house in the suit land and that there is no merit in the suit of the plaintiff and as such it is liable to be dismissed. Abdul Khaleque Pramanik vs. Rajab Ali Pramanik (Amirul Kabir Chowdhury J) (Civil) 5ADC 515 For cancellation of oral gift in respect of the first floor of the building situated on the suit property together with the recovery of khas possession thereof by evicting the defendant therefore.......(2) Md. Badiuzzaman vs. Parvin Akhter Jahan (M.M. Ruhul Amin J) (Civil) 5ADC 519 Section 115 (1) For declaration of title to the suit property and cancellation of the deed of heba-bil-ewaz. It appears that the impugned deed of heba-bil-ewaz was executed on 16.02.1994 and the suit by the plaintiff petitioner appears to have been instituted in 2001. From the materials on record it appears that the plaintiff petitioner failed to explain the reason for such inordinate delay and as such the submission on behalf of the respondents that the suit is barred by limitation cannot be brushed aside. "It must be remembered that the execution of the deed in question is admitted by the plaintiff opposite party. The heba-bil-ewaz deed was a registered one where the plaintiff put her signature. A duly executed signed and registered deed always carries with it a presumption of genuineness. If the legality, genuineness of the said deed is challenged on the ground of fraud, it must be proved by the person who alleges fraud. Because a fraud vitiates everything and for that reason this burden generally never shifts from the shoulder of the person who alleges Musammar Sokhina the same. Khatun VS. Masammat Rowshanara Begum and others (Amirul Kabir Chowdhury J) (Civil) 4 ADC 145 Section—115 Finding of Facts A finding of fact, whether concurrent or not, arrived at by the lower appellate Court is binding upon the High Court Division in revision except in certain well-defined circumstances, such as non-consideration or misreading of the material evidence affecting the merit of the case. Amanatullah and others Vs Au Mohammad Bhuiyan and another, 17 BLD (AD) 199. Ref: ILR 44 Cal. 186; AIR 1945(PC) 82—relied upon. Section—115 The trial Court dismissed the suit. On appeal by the plaintiff the appellate Court as the final Court of fact reversed the judgment of the trial Court and decreed the suit on proper assessment of the evidence on record. Since the findings of the appellate Court do not suffer from any legal infirmity nor are they vitiated by any procedure affecting the merit of the case, the case is concluded by findings of fact and it calls for no interference under section 115 C.P.C. Md. Shah Jahan and others Vs Mir Hossain and others, 17 BLD (AD) 218. Section 115 (1) The appeal is against rejecting the application for rehearing of the Rule which was discharged exparte by judgment. The High Court Division, being a supervisory power, may be exercised even suo-motu in the interest of justice and so the High Court Division is not obliged to hear the parties before pronouncing its verdict when the parties concerned had opportunity to appear but refrained from doing so; in the case of Buddhi Sankar Biswas vs. Akbar Ali Sheikh reported in 44 DLR 242 it has been held that after disposal of civil revision under section 115(1) of the Code of Civil Procedure on merit by a regular judg- ment, the court being no more in the seisin of the matter cannot rehear the revision which was in the meantime was decided on merit; in the case of Bijoy Kumar Saha vs. Deputy Commissioner, Chuadanga and others reported in 23 BLD 158. In view of the absence of the signature of the petitioner's Advocate in the mar- gin of the order sheet it cannot be said that the order was not known to the petitioner's Advocate; moreover there is also no allegation that the petitioners were not aware of the conditional order and so the learned District Judge com- mitted no error in passing the impugned orders dated 26.10.1991 and 6.11.1991 and so no useful purpose will be served by rehearing the Rule. Manirunnessa Khanam and an other vs. Syed Madassir Ali and another (Md. Tafazzul Islam J) (Civil) 4 ADC 288 Section—115 It is a settled principle that the findings of fact, whether concurrent or not, arrived at by the lower appellate Court, which is the final Court of fact, is binding on the High Court Division, as a revisional Court except in certain well-defined exceptional circumstances, such as non-consideration or misreading of the material evidence affecting the merit of the case. In the instant case, from the judgment of the appellate Court it is found that in arriving at his findings they said Court carefully considered all the material facts and circumstances of the case and evidence on record, both oral and documentary, inclusive of the registered Kabuliyat, R.S. and S.A. Khatians, registered sale deeds, and rent receipts and consequently these findings of facts are immune from attack in revision. Hazari Bala Sana Vs. Niron alias Niranjan Mandal 17 BLD (AD) 294. Section 115 (1) For getting full relief the plaintiff should be at liberty to file a fresh suit with advalorem court fee, if considered necessary for cancellation of disputed deed dated 20.01.1958 (Exhibit-Kha) within six months, inasmuch as, without cancellation of the said deed the title of the plaintiff to the suit land could not be declared unless it was found that she had acquired a separate and distinct title by way of adverse possession. Sheikh Ali Ambia vs. Rahima Khatun and others (Amirul Kabir Chowdhury J) (Civil) 4 ADC 377 Principle of resjudicata under section 11 of the Code is applicable in a writ proceeding as the same is also a civil pro-ceeding. We are, therefore, of the view that claimed in writ Petition No. 4127 of 1992 filed by the writ petition-respondents against the appellants of both the appeals was barred by the principle of constructive resjudicata for implied refusal of their claim in respect of the self same sale deed dated 9.11.1989 in Writ Petition No. 798 of 1990. Morevoer after disposal of Writ Petition No. 480 of 1981 by judgment dated 14.1.1982 on the basis of assurance given in the supplementary affidavit sworn on 11.1.1982 respondents cannot claim that they are the owners of the lands and structures of Hardeo Glass, Alumunium, Enamel and silicate Works and the previous of the said factory and the appellants of the two appeals were and are ejectble monthly tenants under them. Hence the impugned judgment can not be sustained in law and is liable to be set aside. In the result both the appeals are allowed without any order as to cost and impugned judgment of the High Court Division is set aside. Government of Bangladesh and ors. vs. Sree Sree Luxmi Janardhan Jew Thakur & ors (Kazi Ebadul Hoque J) (Civil) 4ADC 339 Suit for declaration of title and partition. A plea not made in the pleadings nor taken in any Court below cannot be taken for the first time before the Appellate Division. Tara Mia and another vs. Babru Mia and others (Amirul Kabir Chowdhury J(Civil) 4 ADC 379 Section—115 In exercising power under this section the High Court Division does not interfere with an interlocutory order passed by the subordinate Court unless the impugned order is perverse and illegal and it occasions failure of justice. The ultimate decision rests on the question of ‘failure of justice’. Md. Jahur Ahmed and others Vs. Chowdhury Au Reza, 17 BLD (HCD) 277. Ref: 39 C.W.N. 595; A.I.R. 27Mad 524;—Not applicable. Section 115 The High Court Division in the exercise of its power under Section 115 of the Code of Civil Procedure, considered the materials on record, decreed the suit holding that the lower appellate Court had wrongly affirmed the trial Court's decree of dismissal of the suit over looking the broad facts that the defendants had failed to prove the title of Rajendra Nath Shil in the suit plot and as such the Courts below wrongly disbelieved the plaintiffs' possession therein and as such the learned Single Judge of the High Court Division upon assessment of oral evidence of the witnesses found both title and possession of the plaintiffs in the suit land and further held that the plaintiffs' suit being a suit for declaration of title to the suit land upon ascertaining possession the courts below wrongly held that the suit was barred by limitation. Shamsur Nessa vs. Md. Shajahan Ali (Syed J. R. Mudassir Husain J) (Civil) 5 ADC 614 The plaintiff's contention is that the said deed of gift is forged, fabricated and fraudulent and has been created to grab the suit land. Meher Banu and others vs. Abdul Barek and Muslim Bepari (M.M. Ruhul Amin J) (Civil) 5 ADC 618 The suit was filed seeking declaration that the orders described in schedule 'Ka' and 'Kha' and the proceedings initiated on the basis of the said orders are illegal, void, without jurisdiction and as such not binding upon the plaintiffs. Shamsuddin Chowdhury VS. Government of the People's (Md. Ruhul Amin J) (Civil) 5 ADC 621 The suit was filed seeking declaration of title Sheikh Abdul Mazed vs. Md. Shomrej Ali Mandal (Md..Ruhul Amin J) (Civil)5 ADC 680 Praying for Declaration of title by adverse possession to the suit land and for further declaration that the exparte judgment and decree dated 09.08.1990 passed in Title suit was No. 167 of 1999 illegal, inoperative and not binding upon the plaintif.....(2) Shahin Reza and others vs. Abdul Hamid (M.M Ruhul Amin J)(Civil) 5 ADC 682 Section 115 Appellants that the first two courts below concurrently found that the plaintiff had no possession in the suit lands and that without a prayer for recovery of khas possession the suit as framed was not maintainable. Rupe Jahan Begum and ors. vs. Lutfe Ali Chowdhury & ors (Bimalendu Bikash Roy Choudhury J) (Civil) 4 ADC 432 Section—115 It is now well-settled that a revisional application has to be filed within 90 days from the date of the impugned order as it is necessary in case of appeal unless the delay is explained to the satisfaction of the Court. Ramizuddin alias Kalu Mia Mistri and others Vs Kazi Tajul Islam and others, 17 BLD (HCD) 424. Ref: 39 DLR (AD) 205; 2 BLC (AD) (1997) 11—relied upon. Section 115 Undoubtedly the suit was transferred by the learned District Judge in his administrative capacity on an off date. It was, thus, incumbent upon the transferee court to inform the plaintiff or their Advocate of the next step to be followed. Bangladesh vs Md. Jashim Uddin (Mohammad Abdur Rouf J (Civil) 2ADC 584 Section 115, Order 41, Rule 23 It baffles understanding how the learned Judges of the High Court Division could justify the ends of justice in passing the order of remand in the face of the glaring laches and conscious machination of the defendant to procrastinate the litigation herself being in possession of the property which the learned Judges did not fail to notice. Even compensatory costs as awarded in the instant case can- not justify an order of remand in the name of ends of justice when the order itself defeats justice. Ends of justice can never be the caprice or sweet will of a court. The court must proceed on sound principles. Mst. Khairunnessa ors. Vs Zobaida Nahar @ Zharna and ors. (Bimalendu Bikash Roy Choudhury J(Civil) 2ADC 604 Section 115 Order IX Rule 13 Article 14(1) It is a cardinal principal of administration of justice that no result of any judicial proceeding should be allowed to receive judicial approval from any court of law whenever it is obtained by practising fraud upon the court. Bangladesh VS Mashiur Rahman (Mohammad Abdur Rouf J) (Civil) 2 ADC 761 Section 115, 153 Section 151, the Code of Civil Procedure providing inherent power of the Court read with Section 153 of the Code of Civil Procedure provides general power to amend given to the Court at any time to amend any defect or error in any proceeding of the suit and for determining the real question or issue raised or depending on such proceeding. The University of Dhaka represented. by its Vice Chancellor VS Associated Engineering and Drillers represented by its Managing Director Mr Md. Akhtar Hossain (Mohammad Fazlul Karim J) (Civil) 1 ADC 20 Section—115 Findings of fact The findings arrived at by the Courts below having been rested upon consideration and discussion of legal evidence and materials on record and also on a correct and proper analysis of the legal aspects involved in the case and the findings being findings of fact are not liable to be disturbed by the High Court Division in the exercise of power under section 115 of the Code. Zamir Uddin Ahmed Vs Md. Ziaul Huq and others, 17 BLD (HCD) 648. Ref: Moore’s Indian Appeal Volume 11, 1866-7 Page 468; PLD 1969(SC)565; 17DLR (HCD)119; 9 DLR(AD)46; 44DLR(AD) 176; 17 Indian Appeal, 122; 29 DLR(SC)268; 3ODLR (SC)81; 37DLR(AD)205; 41DLR (AD) 3; 42 DLR(AD) 289; 15BLD (AD)237; 16 BLD(AD) 280;—Cited. Section—115 Concurrent findings of facts based on evidence cannot be disturbed when both the trial court and the appellate court, as the final courts of facts, upon consideration of the evidence on record concurrently found that the petitioner is a defaulter in payment of rent and the suit premises is required bonafide by the plaintiff for his own use and occupation and such findings of facts having been found by the High Court Division to be based on evidence on record, there was no occasion for the Appellate Division to interfere with such concurrent findings. Mazharul Borhan Vs. A.H. Bhuiyan, 15 BLD (AD) 237 Section—115, Order XLI Rule 24 When there are misreading of evidence and non-consideration of some material evidence it becomes incumbent on the revisional Court to consider the same and to arrive at proper findings on the basis of the evidence on record and to finally dispose of the case. The High Court Division was not justified in lightly passing the order of remand instead of finally disposing of the revision case itself on the materials on record. Hussain Ahmed Chowdhury alias Ahmed Husain Chowdhury and others Vs. Md. Nurul Amin and others, IL 6 BLD(AD) 31. Ref: 43 DLR (AD)78;—Cited Section—115(1) Mere error of law without occasioning failure of justice cannot by itself be a ground for interference under section 115(1) of the Code of Civil Procedure. Advocate Moh. Abdul Hamid Vs Moh. Faziur Rahman, 18 BLD (HCD) 587. Ref: A.I.R. 1969(SC) 677; A.I.R .1976 (SC 744; A.I.R. 1974 (SC) 1185; A.I.R. 1982 (SC) 983;—Cited. Section—115(1) Ordinarily in exercise of revisional authority under section 115 of the Code the revisional Court is not empowered to interfere with the finding of fact arrived at by the subordinate Court or tribunal upon reapprecation of evidence unless there has been non- consideration or gross misreading of evidence by the subordinate Courts or tribunals which has materially affected the merit of the case. Abdul Mutalib Vs Md. Mostakim Au and others, 19 BLD (AD) 157. Ref: A1R1949 PC156; 6BLD(AD)267: 8 DLR (AD)172; Syed A.Jalil Vs. Mahbub Alam and others, 46DLR(AD)96; 38 DLR (AD)276—Cited. Section—115(1) Merely because an original document was not brought through foreign office from abroad it cannot be held that the same has no evidentiary value and that it is not a genuine one. The concurrent finding of fact of the Courts below as to genuineness of Ext. 1 being based on evidence, no interference is called for. The Managing Committee, Pirdangi S.I. Senior (Fajil) Madrasha & another, Vs Md. Mozammel Haque and others, 21 BLD (AD) 76. Section—115(i) Mere error of law is no ground for invoking this Court’s revisional jurisdiction unless it is shown that a failure of justice has been occasioned by that error. Zakaria Hossain Chowdhury Vs The City Bank Limited and others, 21 BLD (HCD)1 70 Ref: Shah Wali Vs. Ghulam Din alias Gaman and Mohammad, 19DLR(SC)143; Bangladesh and another Vs. Md. Salimullah and ors. 35DLR(AD)1; Muhammad Swalesh and another Vs. Messers United Grain and Fodder Agencies, PLD 1964 SC 97; Mst. Ghulam Sakina and 6 ors. Vs. Karim Baksh and 7 others, PLD 1970 Lahore and Abdul Motaleb Vs. Md.Ershad Ali and ors. I8BLD(AD)121; Md. Saiful Alam alias Masudul Alam Chowdhury, Vs. Bangladesh Bank and ors, I9BLD(AD) 249; Mr. A.S.F. Rahman and ors. Vs. Bangladesh Bank and ors, 20 BLD (AD)32; M.A. Khaleque Vs. Bangladesh Bank and ors, 5BLC(AD)85; Mrs. Khushi Akhtar Vs. Bangladesh Bank & ors. 5 MLR(AD)44—Cited. Section—115(1) Revisional jurisdiction This court is always in favour of supporting a discretion exercised by a Court subordinate to it unless it can be shown that the discretion has been exercised arbitrarily and perversely and cannot be supported by reason. Matasim Ali Chowdhury Vs Md. Ismail, 21 BLD (HCD) 216. Section—115(1) A reading of the provisions embodied in section 115 of the Code makes it manifestly clear that error of law resulting in an error in the any decision is not the only ground for interference. In order to invoke this Courts revisional jurisdiction there must be a failure of justice. Matasim Au Chowdhury Vs Md. Ismail, 21 BLD (HCD) 216. Sections—115(i) and 151 Section 115(1) of the Code can be invoked only for correcting error of law resulting in an error in the decision occasioning failure of justice, section 115 of the Code should not be confused with section 151 thereof. Md Raziur Rahman Chowdhury Vs Bangladesh and others, 20 BLD (AD) 276. Section—115(1) The High Court Division found that the lower appellate court fully considered the oral and documentary evidence of the parties, believed the plaintiff’s case and came to a finding that the defendants illegally dispossessed the plaintiffs from the suit lands on 29.1.1970 and as such the suit was filed within time. The difference between the judgments of the trial Court and the lower appellate Court being one of appreciation of evidence, the High Court Division had little scope to interfere with the findings of the final Court of facts based on evidence. Haidernessa Vs. Monowara Begum, 16 BLD (AD) 280. Section—115(1) Consolidation of suits for analogous trial There is no specific provision in the Code of Civil Procedure for consolidation of suits for analogous trial. This power is derived from section 151 of the Code of Civil Procedure and is exercised in the interest of justice to avoid multiplicity of litigations. The Court may consolidate suits for analogous trial in appropriate case when these are between the same parties and matters in issue are substantially and directly the same. Abdul Wahab and others Vs Md. Jahur Ali, 17 BLD (HCD) 377. Section—115(1) When a case is decided by any Court subordinate to the High Court Division and against that decision no appeal lies, the High Court Division has power in an appropriate case to interfere with the decision of the subordinate Court in exercise of its revisional jurisdiction. In the instant case the impugned order was passed by the District Judge in a non-judicial matter in his administrative capacity and not as a Court, in the circumstance, the High Court Division has no jurisdiction to interfere with the decision of the District Judge exercising administrative power. M/s. Globe Metal Industries Sramik Union Multipurpose Co-operative Society Ltd. Vs. Ashraf Au and ors, 16 BLD (HCD) 585. Section 115 The Trial Court, on consideration of the evidence adduced by both the parties, dismissed the plaintiffs' suit on making observation and findings to the effect that the defendant No.1, admittedly, being in possession of the land in ques- tion for more than 20 years on the basis of a unregistered sale deed dated 25.5.1974 acquired a good title in that land by virtue of adverse possession and that the right title and interest of the plaintiffs in that land extinguished, Md. Shamsul Hoque vs. Md. Jabbar (Naz- mun Ara Sultana J) (Civil) 8 ADC 673 Section 115 It is stated in the application for condo- nation that for filing a civil revision, the plaintiffs-petitioners collected a certified copy of the judgment of the appellate Court on 21.3.1994, and delivered the same to Mr. Md. Lutfor Rahman, a practising Advocate of Magura District Bar for taking necessary step in this re. gard. Thereafter in the middle of the year 2004, the said Advocate died, and hearing the news, petitioner No.1 went to the house and the chamber of the said Advocate. He tried to collect information from the law clerk and the junior of the deceased Advocate Mr. Lutfor Rah- man. But they expressed their inability to return the certified copy of the im- pugned judgment. Then the plaintiffs- petitioners collected a fresh certified copy of the judgment and decree of the Appellate Court on 23.7.2009 and filed the present application for condonation along with a revisional application. Abu Bakkar Lashkar vs. Rostam Ali Mondal (Syed Mahmud Hossain J) (Civil) 9 ADC 210 Section 115(1) Praying for declaration of title to the suit land and for recovery of khas possession therein and for a further declara-mtion that the registered deed of gift in favour of Minoti Bala by the donar Gagon Chandra Saha Roy as well as as the registered sale deed dated 5.1.2000 executed by Minoti Bala Saha in favour of defendant Nos. 1-5 are forged, fraudulent and not binding upon the plaintiff. Sree Ashish Kumar Shaha Roy vs. Al- Haj Md. Wasidul Islam (B.K. Das J) (Civil) 7 ADC 148 Section 115 For declaration of title and recovery of khas possession of 0.04 acres of viti land with a tin shed alleging, inter alia, that the defendant sold 0.04 acres of viti land along with a tin shed thereon at a consideration of Tk.99,000/- to the plaintiff by a registered sale deed dated 29.3.1990 with an agreement of reconveyance executed and registered on the same day. Abul Hasem Chowdhury vs. Md. Shamsur Rahman (B.K.Das J) (Civil) 7 ADC 327 Section 115 Where there is an error apparent on the face of the record, whether error oc- curred by reason of the counsel's mis- take or it crept in by reason of an oversight on the part of the Court, is not a circumstance which can affect the exercise of jurisdiction of the Court to re- view its decision. Md. Abdur Rashid Akand vs. Md. Raisuddin (S.K. Sinha J) (Civil) 8 ADC 39 Section 115(1) "...Both the parties adduced evidence. The learned Assistant Judge upon consideration of the evidence on record found the plaintiff's homestead upon the suit land and found that the Government had received rent vide Ext.3 series from the plaintiff. In view of the above the said Court decreed the suit by the judgment and decree dated 1.10.1997. The Government preferred Title Appeal No. 142 of 1997 and that was dismissed by the Additional District Judge by the impugned judgment and decree dated 12.04.1999 against which the present application by the Government. I have gone though the judgment of both the Courts below and as well as the revisional application. Admittedly the homestead of the plaintiff are standing on the suit land. Admittedly the Government received rent from plaintiff. Government vs. Abdul Kader Munshi (Shah Abu Nayeem Mominur Rahman J) (Civil) 9 ADC 659 Section 115 Admittedly the suit land appertained to taluk No.6344 which belonged to Maimuna Khatun. It is also admitted that Maimuna Khatun was in khas possession of the suit land. The plaintiff's case is that the suit land was put in auc- tion for arrears of rent and one Md. Ishaque purchased the same in the year 1935 and got possession of the same and subsequently Md. Ishaque sold the suit land to Abdur Rashid by registered deed in the year 1943. The plaintiffs are the heirs of this Abdur Rashid and have inherited the suit land from Abdur Rashid. Abdul Mannan Chowdhury vs. Manikkya Lal Dey (Nazmun Ara Sultana J) (Civil) 8 ADC 793 Section 115 Facts relevant for disposal of the appeal are that the appellants (plaintiffs) instituted Title Suit No.45 of 1999 in the Court of Subordinate Judge, Satkhira for specific performance of contract in respect of 3.49 acres of land of Plot No.9879 of S.A. Khatian Nos.2257 and 2292 out of 8.66 acres of land. Plain- tiff's case in short is that the respondent No.1 (defendant) entered to a contract for sale of the suit land with the plaintiff on 14th September, 1989 at a consider- ation of Tk. 1,05,000/- and on receipt of advance amount of Tk.60,000/- deliv- ered possession of the same on condition that he would execute and register a sale deed within 13th Jaistha, 1397 B.S. upon receipt of the balance amount of Tk.45,000/-. The plaintiffs offered the balance consideration amount and requested the defendant to execute the sale deed but the latter refused to per- form his part of obligation. Khokan Chandra Mondal vs. Nanda Lal Mridha (S.K. Sinha J) (Civil) 8 ADC 926 Section 115 The facts in short are that the appellant instituted a suit being Title Suit No. 261 of 1963 in the Third Court of Assistant Judge, Dhaka, on 5.9.1968, praying for a decree for eviction of the defendant as licensee. The suit was decreed ex-parte on 27.2.1975 and thereafter Execution Case No. 14 of 1975 was filed. The de- fendant on 4.3.1975, instituted a miscellaneous case being Miscellaneous Case No. 54 of 1975 under Order IX rule 13 of the Code of Civil Procedure, praying for setting aside the aforesaid ex-parte decree and by an order dated 27.3.1975 the operation of the ex-parte decree was stayed but the appellant inspite of the aforesaid order of stay, evicted the de- fendant from the suit property. There- after, on the application of the defendant, the Court by its order dated 30.8.1980, directed the appellant to hand over possession of the suit prop- erty to the defendant within 24 hours. Walilullah vs. Hasina Begum (A.B.M. Khairul Haque J) (Civil) 8 ADC 947 Section 115 The trial court decreed the suit allotting a separate saham for 4.96 acres of land to the plaintiffs. Against that judgment and decree of the trial court the contesting defendant Nos. 1 to 3 preferred ap- peal being Title Appeal No. 109 of 1986 before the District Judge, Jhalakati. The appellate court, after hearing, dismissed that appeal affirming the judgment and decree of the trial court. Against that judgment of the appellate court the con- testing defendants preferred Civil Revision No.3330 of 1991 and obtained Rule. Abdul Aziz vs. Most. Kutisona Bibi (Nazmun Ara Sultana J) (Civil) 9 ADC 190 Section 115 The facts, leading to the filing of this petition, in brief, are that the predecessor-in-interest of respondent Nos.1-6 and respondent No.7 instituted Title Suit No.85 of 2002 for partition on dec- laration of title claiming a saham for 1.45 acres of land described in the schedule to the plaint. The plaintiff's case, in short, is that the suit land origi- nally belonged to Abdul Kader Sarder and Kasiruddin Sarder alias Basir Sarder. The owners died just before the R.S. operation. Abdul Hakim Sarder vs. Ahidul Sarder (Syed Mahmud Hos- sain J) (Civil) 9 ADC 250 Section 115 It has already been stated above that the original partition suit was decreed on contest by the trial court by the judgment and order dated 31.10.1996 allot- ting a separate saham for 2.37 acres of land out of total 18.86 acres of divisible land to the plaintiffs. Sona Miah vs. Abed Ali (Nazmun Ara Sultana J) (Civil) 9 ADC 377 Section 115 The learned advocate appearing for the petitioners did not press the rules on merit and concede that the amount of compensation re-assessed by the arbitrator was adequate and pray for a direction to pay the balance consideration amount assessed by the arbitrator expeditiously. Abu Taher vs. Government of Bangladesh (S.K. Sinha J) (Civil) 9 ADC 853 Section 115 It appears that the High Court Division rightly found that exparte decree passed in favour of the defendant-respondent No.1 in Title Suit No.291 of 1985 was maintained up to the Appellate Division in Civil Appeal No.361 of 2002. So he should not be deprived of enjoying the benefit of the said decree. The High Court Division are of the view that if the proceedings of the execution case in question is somehow blocked either in the form of injunction or stay the decree which the defendant-respondent No. 1 obtained on 26.04.1989 shall be made nugatory and that will definitely shake the faith and confidence of the litigant people in judicial system of the country. Most. Shahida Khanam vs. K.M. Zahurul Hoque (Md. Muzammel Hossain J) (Civil) 10 ADC 112 Section 115 When the matter was taken up for hearing we noted that the order impugned in this appeal is an interim order dated 01.08.2000. The petitioner had challenged art order dated 14.11.99 passed in Miscellaneous Appeal No.141 of 1999 claiming that the order was tanta- mount to rejection of the prayer for constituting a neutral committee for performing the regular administration and function of the Ershad Ali Waqf Es- tate, Chttagong. While issuing the Rule the High Court Division directed the op- posite party No.8, the Waqf Administra- tor to constitute an official mutwalli to perform the regular administration of the Waqf Estate. Anwarul Islam Khan vs. Ali Mahbub Khan (Muhammad Imman Ali J) (Civil) 10 ADC 961 MILR(AD) 301; Sukumar Sen v. Gouranga, 1989 BLD(AD) 162; Kar- naphuli Cotton Mills v. UCBL, 49 DLR(AD) 130 and Md. Hossain v. Dildar Begum, 9MLR(AD)361. But unfortunately, we are coming across number of cases including the instant one where the 'learned Judges of the High Court Division have been dis- posing of revision applications sum- marily giving full relief to the petitioner without issuing any Rule completely ignoring the said princi- ples of law declared by this Division. It' seems that the' concerned learned Judges are not aware of article 111 of the Constitution of the People's Re- public of Bangladesh which has man- dated that the law declared by this Division shall be binding on the High Court Division........(9) In view of the above, the order passed by the High Court Division complained of in this petition cannot be sustained and must be set aside But since we have heard the learned Counsel of both par- ties and, the question involved in this leave petition is, well settled by this Division, we do not consider it necessary to grant leave, because that would cause delay' of the disposal of the mis- cellaneous appeal pending before the District Judge. However, we reiterate the statement of law that summary dis- posal of a revision application filed under section 115 of the Code giving full relief to the petitioner without issu- ing Rule and thus giving no opportunity to the other side(s) of being heard is not permissible. We strongly disapprove and deprecate such kind of disposal by the High Court Division. Gulf Air Company GSC vs. Travel Trade Ltd. (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 993 Section 115 The High Court Division found that the Trial Court's finding that the plaintiff could not prove his possession and dis- possession in the suit land appeared to be inconsistent with the material evi- dence on record. Md. Daliluddin vs. Md. Mokarram Hossain (Syed Mahmud Hossain J) (Civil) 8 ADC 421 Section 115 Filed the above pre-emption case under section 24 of the Non Agricultural Tenancy Act on the averments that the case land originally belonged to Mojibor and Motizar and in the year 1985 the respondent Nos.2-4 purchased the suit land from them and then the respondent Nos.3 and 4 while possessing the case land by a registered kabala of the year 1992 sold the 3 decimals of land to him and thus he is a co-sharer by purchaser and the respondent No.2, on 15.4.1998, without any notice to him. Most. Rofika Begum vs. Mohammad Ali Sheikh (Md. Tafazzul Islam J) (Civil) 8 ADC 502 Section 115 In this case, the only question for determination is whether the kabala deed in question was executed by the defendant No.1 or not. Admittedly the signatures of the executant appearing in this kabala in question are of the defendant. The defendant has admitted in his very pleading that the signatures appearing in this kabala in question are his own signatures. The defendant, however, has pleaded a case to the effect that the plaintiff obtained these signatures on some blank stamp papers and cartridge papers during execution and registration of two other documents namely a ka- bala deed and a deed of exchange by him in favour of the plaintiff on 13.10.2008 and for filing written objection in a per- emption case and those blank stamp papers and cartridge papers containing his signatures might have been used in creating the kabala in question. But it appears that the defendant has hopelessly failed to prove this story of taking his signatures on blank stamp papers and cartridge papers by the de- fendant by adducing any iota of evidence. Md. Moktad Hossen Majumdar vs. Md.Golam Mostafa Majumdar (Naz- mun Ara Sultana J) (Civil) 8 ADC 596 MILR(AD) 301; Sukumar Sen v. Gouranga, 1989 BLD(AD) 162; Kar- naphuli Cotton Mills v. UCBL, 49 DLR(AD) 130 and Md. Hossain v. Dildar Begum, 9MLR(AD)361. But unfortunately, we are coming across number of cases including the instant one where the 'learned Judges of the High Court Division have been dis- posing of revision applications sum- marily giving full relief to the petitioner without issuing any Rule completely ignoring the said princi- ples of law declared by this Division. It' seems that the' concerned learned Judges are not aware of article 111 of the Constitution of the People's Re- public of Bangladesh which has man- dated that the law declared by this Division shall be binding on the High Court Division........(9) In view of the above, the order passed by the High Court Division complained of in this petition cannot be sustained and must be set aside But since we have heard the learned Counsel of both par- ties and, the question involved in this leave petition is, well settled by this Division, we do not consider it necessary to grant leave, because that would cause delay' of the disposal of the mis- cellaneous appeal pending before the District Judge. However, we reiterate the statement of law that summary dis- posal of a revision application filed under section 115 of the Code giving full relief to the petitioner without issu- ing Rule and thus giving no opportunity to the other side(s) of being heard is not permissible. We strongly disapprove and deprecate such kind of disposal by the High Court Division. Gulf Air Company GSC vs. Travel Trade Ltd. (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 993 Section 115 The High Court Division found that the Trial Court's finding that the plaintiff could not prove his possession and dis- possession in the suit land appeared to be inconsistent with the material evi- dence on record. Md. Daliluddin vs. Md. Mokarram Hossain (Syed Mahmud Hossain J) (Civil) 8 ADC 421 Section 115 Filed the above pre-emption case under section 24 of the Non Agricultural Tenancy Act on the averments that the case land originally belonged to Mojibor and Motizar and in the year 1985 the respondent Nos.2-4 purchased the suit land from them and then the respondent Nos.3 and 4 while possessing the case land by a registered kabala of the year 1992 sold the 3 decimals of land to him and thus he is a co-sharer by purchaser and the respondent No.2, on 15.4.1998, without any notice to him. Most. Rofika Begum vs. Mohammad Ali Sheikh (Md. Tafazzul Islam J) (Civil) 8 ADC 502 Section 115 In this case, the only question for determination is whether the kabala deed in question was executed by the defendant No.1 or not. Admittedly the signatures of the executant appearing in this kabala in question are of the defendant. The defendant has admitted in his very pleading that the signatures appearing in this kabala in question are his own signatures. The defendant, however, has pleaded a case to the effect that the plaintiff obtained these signatures on some blank stamp papers and cartridge papers during execution and registration of two other documents namely a ka- bala deed and a deed of exchange by him in favour of the plaintiff on 13.10.2008 and for filing written objection in a per- emption case and those blank stamp papers and cartridge papers containing his signatures might have been used in creating the kabala in question. But it appears that the defendant has hopelessly failed to prove this story of taking his signatures on blank stamp papers and cartridge papers by the de- fendant by adducing any iota of evidence. Md. Moktad Hossen Majumdar vs. Md.Golam Mostafa Majumdar (Naz- mun Ara Sultana J) (Civil) 8 ADC 596 Section 115 From the pleadings of the contesting parties, the prayer for saham of the defendants as stated hereinbefore and from the judgment and decree of two Courts below, it appears that the main controversy in the suit was as to the claim of defendant Nos. 1-5 in respect of .66 acre and .62 acre of land which were allegedly purchased by defendant No.1 by two kabalas being No.5362 dated 10.04.1967 and No.2143 dated 08.02.1965 marked as exhibits-'Ka' and 'Kha'. From the judgment and decree of the trial Court, it appears that it did not accept the said case of defendant Nos. 1-5 as to their claim to 1 28 acres of land on the specific finding that the kabalas by which they. claimed to have purchased those area of land were created, fictitious and ineffective (in Ben- gali it has been written as বিবাদী পরে ৮/৩/৬৫ ইং ও ১০/০৪/৬৭ ইং তারিখের কবলা দুখানা শৃষ্ট, ভুয়া ও অকার্যকর দলিল). Monsur Rahman Mondal vs. Hasanuzzaman Mandal (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 967 Section 115 It appears from the judgment and order that on consideration of the materials on record the High Court Divi- sion found the plaintiff's title in the suit land but held that the plaintiff pur- chased the suit land from a plot having 1.43 acres of land and she did not give description of the land giving sketch map in the schedule of the plaint, so it is difficult to find out the exact position of the suit land. Since the plaintiff and contesting defendant purchased the land from the successive heirs of Ismail Hossain and the suit land is a portion of a big plot having 1.43 acres of land, we are of the view that the High Court Division rightly held that the proper remedy of the petitioner is lying in a suit for partition. It is relevant here to observe that the High Court Division found the title of the plaintiff in the suit land and the contesting defendant did not raise any objection against such finding in the higher forum. Mosammat Shahida Alam vs. Mosammat Hasina Akhter (Hasan Foez Siddique J) (Civil) 10 ADC 991 Section 115 In view of the submissions of the learned Counsel of the respective party and the nature of the impugned order, the only question to be decided in this leave petition is as to whether the, High Court Division was correct in its approach in disposing of the re- vision application filed under section 115(1) of the Code summarily without issuing any Rule and thus giving no chance of hearing to the other side, namely, the defendant-petitioners herein and the other defendants who were made opposite parties in the re- vision application to place their ver- sion of the case on the question of the order of stay passed by the learned District Judge. The question is not a new one and was raised earlier many a times before this Division and each time, this Division disapproved the disposal of revision application summarily by the High Court Division giving full relief to the petitioner with- out issuing any Rule upon the other side(s). This Division in unequivocal language held that though section 115 of the Code does not speak about service of notice on the opposite party, the revisional Court cannot interfere with the decision of the Court below without giving to the other side(s) an opportunity of being heard. It has also been held by this Division that Rule must be issued against all parties who would be affected in case of interference. This is so even when the High Court Division acts suo motu. The cases are Danish" Abu v. Sakina, 4 BLC(AD) 68; Moslema Khatun v. Ishaque, 42 DLR(AD) 72; Ali Ahmed v. M.A. Haque, 1983 BLD(AD)193; Faruk v. Nurul Azim, 1983 BLD(AD) 196; A.H. Chowdhury v. M. Hossain, 1984 BCR(AD) 532; Abdul Wahab v. Ali Ahmed, 1992 BLD(AD) 64; Fa- zlur Rahman v. Rajab Ali, 30 DLR(AD) 30; Dijendra Lal v. Abu Zafar, 30 DLR(AD)74; Shamsul Are- fin v. Kazal Mia, 49 DLR(AD) 175; Jabbar Jute Mills v. Abul Kashme, 10 Section 115 The case of the plaintiffs and all the contesting defendants have been nar- rated elaborately in the judgments of courts of fact and as such we do not re- quire to narrate the same in details again in this judgment. Plaintiff's short case is that the land in suit originally belonged to Golam Ali. Golam Ali died leaving his 2nd wife Shukhi Bibi and 3 daugh- ters. Golam Ali's son Baksha prede- ceased his father leaving 2 daughters. Rahima Khatun vs. Md. Habibur Rah- man (Nazmun Ara Sultana J) (Civil) 8 ADC 777 Section 115 As it appears the High Court Division discharged the Rule holding that the contents of Annexures A, C, C-1 of the revisional application, the applications filed by the defendant No. 1/ petitioner as well as the contents of impugned order show that the petitioner filed the above applications on the grounds that Mr. Md. Abdul Noor Bhuiyan Bablu, the learned Advocate Commissioner, while recording the deposition of the re- spondent No. 1 in cross-examination did not wear the formal dress and rather he had been wearing a T shirt and due to such wearing of T shirt by the learned Advocate Commissioner, the decorum of the Court or the person involved with the activities of the Court, had not been maintained properly and as such the said learned Advocate Commissioner is not competent to perform the duty as an Advocate Commissioner and the learned Advocate of the petitioner also filed an application before the Advocate Commissioner by mentioning his dress but the copy of the said application has not been annexed with the revisional ap- plication but however the learned advo- cate of the respondent No. 1 handed over the same to the Court and the contents of the same, Annexure A, C and C-1 and the impugned order does not disclose any cause of grievance and since there is no Code of dress for any Advocate Commissioner, at the time of perform- ing his duty as commissioner, an Advo- cate Commissioner is not bound to wear the dress which he wears in the Court room and the records also show that the learned Advocate of the petitioner mis- behaved with the learned Advocate Commissioner in a manner which is not in accordance with the professional etiquette of the learned members of the Bar and further the impugned order has not occasioned any failure of justice for which the petitioner can move this Divi- sion under section 115(1) of the Code of Civil procedure and moreover the dif- ferent steps taken by the petitioner in the trial courts as well as this revisional application show that he adopted a pol- icy for dragging the suit for long time and that the instant suit was filed in the year 1978 and now it is 2008 and even after expiry of 30 years the recording of the depositions of the parties could not be completed for such dilatory tactics and further the Rule was obtained by the petitioner in the year 2003 but he never took any initiative to get the Rule heard, rather the respondent No.1 took initia- tive for hearing of the Rule. Shamsud- din Mollah vs. Jamila Khatoon (Md. Tafazzul Islam J) (Civil) 9 ADC 1009 Section 115 and order XVII, rule 14 It appears that the opposite party instituted a suit showing valuation of TK.71,000.00 and subsequently, by amendment raised the valuation to the tune of TK.60(sixty) lacs. It appears that the trial Court allowed other prayer of amendment. It appears that the defendants filed an application under Order XVII rule 14 of the Code of Civil Procedure before the trial Court and the trial Court while allowing the amendment rejected the said application by the said impugned order. M. A. Razzaque. vs. Syed Mainul Haq (Mohammad Fazlul Karim CJ) (Civil) 8 ADC 457 Section 115(1) Plaintiff was suffering from paralysis and was confined to bed. The defendant No. 1 taking advantage of her illness, managed to create a deed in collusion with the scribe and the plaintiff was not acquainted with the fact of the existence of the deed and the defendant created the deed on taking left thumb impres- sion on the plea of treatment. Md. Ashraful Alam vs. Md Nazrul Islam (Md. Hassan Ameen J) (Civil)6 ADC 305 Section 115(1) As regards the submissions of the learned counsel this will suffice to mention that the assumption of jurisdiction to hear a matter by a Division Bench in respect of a Single Court matter suffers from no infirmity and depends upon the absolute discretion of the Court concerned. A.M.M. Ali Ashraf vs. Nurun Rashid Chowdhury (Mohammad Fazlul Karim J) (Civil)6 ADC 307 Section 115 For declaration of title to the suit land and confirmation of possession therein alleging, inter alia, that the plaintiffs acquired title to the suit land on the basis of settlement from the landlord. The People's Republic vs. Abdul Matin Sarder (S.K. Sinha J) (Civil) 8 ADC 479 Section 115 We have considered the submissions of the learned Advocate for the petitioners, the impugned judgment and the materials on record. Having considered the materials on record the High Court Divi- sion found that the Advocate Commissioner specified saham allotted to the plaintiffs pursuant to the preliminary de- cree passed in the suit and also on consideration of the existing possession of the parties. The High Court Division no- ticed the defendants failed to disclose any facts about any conflict in allotment of saham to the plaintiffs. Safiur Rah- man vs. Nazir Ahmed (Syed Mahmud Hossain J) (Civil) 10 ADC 238 Section 115 The learned Advocate for the peti- tioner submits that the courts below failed to consider that the predecessors of the plaintiff petitioners and the de- fendant respondents are step brothers and they have been enjoying the prop- erty according to 'Wasiatnama' and by amicable partition. But the defendant respondents attempted to dispossess the plaintiff petitioners from the prop- erty which they were enjoying since life time of their father and a result the petitioners were constrained to file the suit for permanent injunction, with a prayer for temporary injunction which the courts below rejected on misconception and the High Court Division without considering this aspect dis- charged the rule occasioning failure of justice. Md. Mizanur Rahman vs. Al- haj Md. Riazul Islam (Md. Shamsul Huda J) (Civil) 10 ADC 999 Section 115 Short facts necessary for disposal of this petition for leave to appeal are that the petitioner as plaintiff filed Artha Rin Case No.18 of 2004 in the Court of Joint District Judge, Second Court, Ra- jbari against the predecessors of the present respondents for realization of a sum of TK.15,03,77.00 as on 22.04.2004 on the averments, inter-alia, that the predecessors of the respondents, namely, Kalipada Saha, and Brojendra Nath Saha, had a business house under the name and style M/S. Kalipada Saha and Brothers and they had transactions with the plaintiff-bank from the year 1983. Agrani Bank Limited vs. M/S. Kalipada Saha (Md. Abdul Wahhab Miah J) (Civil) 8 ADC 637 Section 115 Since both the trial court as well as the appellate court below on consideration of the deposition of the P.Ws. and D.Ws. found that the plaintiff was able to prove his exclusive possession in the suit land the plaintiff was entitled to get the decree as prayed for and that since there was no allegation in the revisional application regarding any misreading or non-consideration of the materials or evidence on record there was no reason for interference by the revisional court. Assistant Horticulturist Agriculture Ex- tension vs. M. A. Sattar Bhuiyan (Nazmun Ara Sultana J) (Civil) 9 ADC 644 Section—115(1) Concurrent findings of facts Concurrent findings of facts arrived at by the trial court and the appellate Court on appreciation of evidence are immune from attack in revision. But when these findings are found to be the products’ of misreading and non-reading of the material evidence and misconstruction of an important document, a case of interference is made out. Shamsuddin Ahmed Vs. Dalil Patan and others, 17 BLD(HCD)556 Section—115 (1) Concurrent findings of fact In the face of the concurrent findings by the trial court as well as by the appellate Court that the plaintiff had no possession in the suit land and that without a prayer for khas possession the suit as framed was not maintainable, the High Court Division acted beyond its jurisdiction exercising power under section 115(1) of the Code in setting aside the said concurrent findings of facts and sending back the case on remand to the trial court without reversing the material findings of the Courts below with reference to the evidence on record. Rupe Jahan Begum and others Vs Lutfe Ali Chowdhury and others 17 BLD (AD) 67. Ref: (1854) 6 M.I.A. 53; 34 DLR (AD) 61; (1915) L.R. 42 l.A. 202; (1886) L.R. 13 l.A. 160; (1898) L.R. 26 I.A.38; (1974) 2 SCR 90; (1932) 59 l.A. (PC)I;—Cited. Code of Civil Procedure [V of 1908] Section 115 State Acquisition and Tenancy Act [XXVIII of 1951] Section 92-The onus is on the Government to prove that the last owner. died intestate the defendant did not take any attempt to prove the said requirement in accordance with law after compliance of all the required formality as provided in section 92 of the State Acquisition and Tenancy Act in accordant with law before the declaration of the suit property as intestate. It appears to the High Court Division that no legal process of law has been followed by the government before passing the impugned order to declare the suit land as intested land. Even on notice was served upon the Krishna Komol or the local authority to determine the where about of the said Krishna Komol as required by law Considering the above facts and circumstances and in the light of the decision as referred above, the High Court Division does not find that the government has duly passed and declared the suit property as intasted property hy operation of the provision of Section 92 of the S.A.T. Act. And moreover the prima facie title and possession and the where about of the original tenant Krishna Komol was very much present in Bangladesh was proved by the plaintiff petitioner by adducing oral as well as the registered deeds executed by putting signature of Krishna Komol himself and his presence in Bangladesh is also supported and corroborated by the PW. 2 the local authority the then chairman of the concern Union Parishad. In such view of the matter, the High Court Division finds substance in the rule. In the result the Rule is made absolute. Abu Md. Rahmatullah Hasan Beg being dead his legal heirs 1(a) Mosammat Lailla Arjuman Banu and Commissioner (Revenue) Gaibandah and Deputy others -Vs- Additional others (Civil) 18 ALR (HCD) 311-315 Code of Civil Procedure [V of 1908] Section 115 read with Non-Agricultural Tenancy Act, 1949 Section 24-Oral gift It is a settled proposition of law that an oral gift under Mohammedan Law takes effect as soon as there is a declaration of the gift by the donor and an acceptance of the same by the donce accompanied with delivery of possession of the property under the gift made in favour of the donee by the donor. The scope of a Civil Revision as contemplated by Section 115 of the Code of Civil Procedure is very limited. The findings of fact arrived at by the lower Appellate Court in the impugned judgment are binding upon the High Court Division being the Revisional Court unless it can be shown that there is any perverse finding therein. The High Court Division does not find any credible evidence on the side of the pre-emptees with regard to the offer, acceptance and delivery of possession of the case property in favour of the original vendor by the vendee pursuant to the alleged oral gift dated 20.06.2004. This being the landscape, a man of ordinary prudence will be loath to accept the alleged reconveyance of the case property in favour of the original vendor as a genuine transaction. So in view of the evidence and materials on record and regard being had to the facts and circumstances of the case, the High Court Division is led to hold that the alleged reconveyance of the case property in favour of the pre-emptee-seller by the pre-emptee-purchaser prior to filing of the pre-emption case is a colourable transaction, to all intents and purposes. It transpires that the alleged drama of reconveyance of the case property pursuant to the alleged oral gift dated 20.06.2004 was staged in a fraudulent, collusive and hush-hush manner with a view to defeating the right of pre-emption of the pre-emptors. The High Court Division does not find any gross misreading or non-reading or non- consideration of any material piece of evidence or non-consideration of any vital document by the Court of Appeal below affecting the merit of the case. In this connection, the High Court Division feels tempted to say that the scope of a Civil Revision as contemplated by Section 115 of the Code of Civil Procedure is very limited. The findings of fact arrived at by the lower Appellate Court in the impugned judgment are binding upon the High Court Division being the Revisional Court unless it can be shown that there is any perverse finding therein. Salina Akter Parveen and another -Vs- Fazilatun Nahar alias Shirin Hossain and others (Civil) 18 ALR (HCD) 22-27 Code of Civil Procedure (V of 1908) Section 115(1)-Whether the suit property is 'stridhan' or not, and whether Rukkhini was a mere benamder for the joint family property, are questions of fact and both the Court below having arrived at the same conclusion on this questions on concurrent findings of fact and the High Court Division in revision having upheld concurrent findings of fact, this question cannot be reopened. Shishubar Dhali vs Chitta Ranjan Mondol (Civil) 75 DLR (AD) 125 Code of Civil Procedure [V of 1908] Sections 115 and 151-It is settled preposition of law that the report of the Advocate Commissioner is neither substantive nor a conclusive or a final piece of evidence. This report is open to challenge and controversy by adducing appropriate evidence. The Court is competent to consider the report of the Advocate Commissioner on the merit of the case in the light of such other evidence as may be given by the contesting parties to the suit. The High Court Division held that High Court in the exercise of civil revisional jurisdiction under Section 115 of the Civil Procedure Code can interfere with the decision of an appellate judge only when it is shown that decision is based on gross misreading of evidence or non consideration of the material evidence of decision had been founded misconception and misinterpretation of any material document or otherwise it is perverse being contrary to evidence and materials on record and also law. In view of the above facts and circumstances of the case it appears that the learned Additional District Judge in passing the impugned judgment and order committed erred in law resulted an error in decision occasioning failure of justice and hence, the impugned judgment and order warrants interference by this Court. In the result, the Rule is made absolute. Murari Mohan Ghose -Vs- Sree Tapas Kumar Ghose and others (Civil) 16 ALR (HCD) 89-90 Code of Civil Procedure [V of 1908] Section 115 It is now a well settled provision of law is that by exercising the power conferred under section 115 of the Code of Civil Procedure the High Court Division cannot go into the factual aspect even if in a case of reversal of judgment and decree. The High Court Division does not find any material point of law or gross misreading of evidence raised by the petitioner in the case in hand. To believe or disbelieve a witness as well documentary evidence is within the jurisdiction of the Courts below and the High Court Division sitting in a revision cannot interfere in such jurisdiction unless there is non consideration of material evidence affecting the ultimate decision of the Courts below. On perusal of the application it appears that the petitioner could not show any non consideration of material evidence by the Courts below. The finding arrived at and the decision made by on the Courts below do not call for any interfere by this Court under section 115 of the Code of Civil Procedure. The finding of the Courts below having been based on proper appreciation of evidence on record do not call for any interference. Considering the facts and circumstances, the High Court Division finds no reason to interfere. Accordingly the Rule is discharged. Sonali Bank Limited. -Vs.- Md. Amzad Hossain and others (Civil) 23 ALR (HCD) 22 Code of Civil Procedure [V of 1908] Section 115 (1) read with Order XXXIX rule 1 and 2 There cannot be any such order of injunction to restrain anybody in normal functioning of an institution and definitely it is a matter of trial by which it can be adjudicated as to whether the appointment of anybody in the institution was lawful or that it was done collusively. The law of temporary injunction does not provide any scope to pass any such order for temporary injunction which can be compensated in terms of money value. Hence, it is apparent from the face of the papers that the relief which was sought for, was not proper under the ambit of relevant law as described in Order XXXIX rule 1 and 2 of the Code of Civil Procedure (V of 1908). It appears to the High Court Division that the learned Senior Assistant Judge, Mithapukur, Rangpur has misconstrued himself in giving the relief which is not in accordance with law and on the other hand, the High Court Division finds no illegality or infirmity in the impugned judgment and order passed by the appellate court, by which the impugned judgment and order can be interfered with. Having regard to the facts, circumstances and the discussions referred to above, the High Court Division is constrained to hold such a view that the Rule has got no merit to succeed. In the result, the Rule is discharged. Md. Badiujjaman Vs. Md. Safikul Islam and others. (Civil) 23 ALR (HCD) 42 Code of Civil Procedure [V of 1908) Section 115(1) The possession of the defendants has been admitted by the plaintiff in another suit and as such the trial Court and the Appellate Court have committed no error in rejecting the application for temporary injunction. The High Court Division observed that it appears from the orders passed by the trial and the Appellate Court that, the defendants are in possession of the suit land and it has been recorded in the impugned order that in the plaint of the Civil Suit No. 983 of 1979 filed by the same plaintiff Panna Lal Chakrabarty, the possession of the defendants has been admitted. In paragraph No. 1 of the plaint of Title Suit No. 8 of 2016, it has been admitted that, one Nogendra Kumar Chattopadhay had purchased the suit land and as such, prima-facie the plaintiff- petitioner has no locus-standi to file the suit, although it will be decided on merit upon taking evidence. It also appears that, one Nogendra Kumar Chattopadhay was original owner of the suit land and the said Nogendra Kumar Chattopadhay gifted the suit property vide deed of gift No. 64 dated 13.01.1954, which has been impugned in the suit, but the said deed is still in force. Therefore, the plaintiff has no prima-facie case, rather the defendants have prima- facie title and possession in the suit property. Hence, in the High Court Division considered opinion that, the trial Court and the Appellate Court have committed no error in passing the impugned decisions. In the result, the Rule is discharged. Panna Lal Chakraborty- Vs. Kazol Chandra Bhowmik and others. (Civil) 23 ALR (HCD) 69 Code of Civil Procedure [V of 1908] Section 115(1) read with State Acquisition and Tenancy Act [XXVIII 1951] Section 96 The right of pre-emption is a predatory right and as such the onus lies heavily on the pre-emptor to prove his case. As soon as the pre-emptee exhibited the certified copy of separate khatian, the onus shifted to the pre-emptor to prove that was not a genuine document. The Appellate Division observed that the High Court Division came to a finding that by Exhibit. "Ka", a separate khatian being No. 76 was opened in the name of Nawab Ali in Mutation Case No. 717 of 1979- 1980 and that khatian was approved by the then Circle Officer (Revenue), Barura on 15.4.1990 and that Nawab Ali had since been paying rent as per the separate khatian prior to the sale under pre-emption. While discussing the evidence of the pre emptor who was examined as P.W. 1, the trial Court noticed that the pre-emptor admitted that she was not a co-sharer in the case holding and that Nowab Ali sold the land of khatian No. 76 to opposite party Nos. 1 and 2 (both the pre-emptees) Admittedly, the right of pre-emption is a predatory right and as such the onus lies heavily on the pre-emptor to prove his case. As soon as the pre-emptee exhibited the certified copy of separate khatian, Exhibit- 'Ka' the onus shifted to the pre-emptor to prove that Exhibit 'Ka" was not a genuine document. The pre-emptor also miserably failed to prove that the khatian was not separated after complying with all the formalities required by law. Admittedly, Exhibit. 'Ka' was prepared pursuant to Mutation Case No. 77 of 1979-1980 i.e. long before the sale under pre-emption. Therefore, the High Court Division rightly concurred with the findings arrived at by the trial Court and reversed the judgment and order passed by the appellate Court. The Appellate Division finds no substance in this petition which is accordingly dismissed. Mosammat Manikjan Bibi -Vs- Md. Jalil alias Abdul Jajil and others (Civil) 22 ALR (AD) 204 Code of Civil Procedure [V of 1908] Section 115(1) In a suit for recovery of possession the plaintiffs were required to prove that they were in possession of the suit land before the alleged date of dispossession. The Appellate Division notes from the impugned judgement that the High Court Division observed that Chand Ali and Keramot Ali, the predecessors in interest were alive when the alleged dispossession took place. On the other hand, the appellate Court failed to take notice of the above mentioned facts and came to an erroneous finding that the plaintiffs were able to prove their possession in part of the suit plot No. 913, 914 and 921. The High Court Division further observed that the evidence of the P.Ws. revealed that they could not prove possession of the plaintiffs in the suit land before their alleged date of dispossession. In the Appellate Division's view the High Court Division correctly noted that in a suit for recovery of possession the plaintiffs were required to prove that they were in possession of the suit land before the alleged date of dispossession. Asgor Ali and others -Vs- Noorjahan and others (Civil) 21 ALR (AD) 46-50 Code of Civil Procedure [V of 1908] Section 115(1) read with Arpito Sompotty Prottarpon Ain [XVI of 2001] Section 13-Since as per provision of section 13 of the "অর্পিত সম্পত্তি প্রত্যর্পণ আইন, ২০০১" all the proceedings of the case which has been enlisted in the "Ka" list of the present V.P. list has been abated in such circumstances of the case the Rule should be disposed of on the ground of abatement. At the time of hearing of the Rule, it is found to the High Court Division that the plaintiff obtained settlement of the property which was purchased by the defendant No. I from one of the co-sharer of Mohan Das on 19.07.1997 through V.P. Case No. 21 of 1978-79. On quarry of the learned Deputy Attorney General the concerned Deputy Commissioner, Sylhet through Circular No. 05.60.9100.008.34. 199.11-545 dated 19.05.1914 informed that the disputed land which was executed by Rebati Mohan Das in favor of the opposite party No. 1 through deed dated 19.07.1997 has been enlisted in the 'Ka' list under "অর্পিত সম্পত্তি প্রত্যর্পণ আইন, ২০০১" (Amended 2011). As per provision of "অর্পিত সম্পত্তি প্রত্যর্পণ আইন, ২০০১" all the proceedings pending for disposal should be abated, considering the above provision of law Mr. Mahbub Ali, the learned advocate of the petitioner and Mr. M. Khaled Ahmed the learned advocate for the opposite parties jointly pray for a necessary order of abatement of the proceedings. Since as per provision of section 13 of the "অর্পিত সম্পত্তি প্রত্যর্পণ আইন, ২০০১" all the proceedings of the case which has been enlisted in the "Ka" list of the present V.P. list has been abated in such circumstances of the case the Rule should be disposed of on the ground of abatement. In the result the Rule is disposed of on the ground of abaterment. Mahmud Ali and others. -Vs- Laloi Bibi and others (Civil) 19 ALR (HCD) 26-28 Code of Civil Procedure [V of 1908] Section 115(1) During disposal of the original suit as well as the subsequent appeal both the courts below committed gross illegality and there has been apparent misreading and non-reading of evidence and non- consideration of material facts resulting in an error in the decision occasioning failure of justice. Besides this; the proposition of law as incorporated under Muhammaden Law has been ignored in its total approach and true perspective. The High Court Division is of view that the witnesses adduced from the side of the plaintiff in support of his contention over the mandatory formalities "Talab-E-Ishad" and "Talab-E-Muashabad" there exists series of contradictions and omissions which cannot be ignored specially in the instant nature of suit for "Hoq Shufa" guided under Muhammaden Scrutinizing Law. the material evidence or records it is obvious to note that in this case on material facts of "Talab-E-Muashabad" and "Talab-E-Ishad" the P.W.s have contradicted one another and the time of compliance of the formalities especially with regard to the manner of the necessary formalities P.Ws.1, 2 and 3 are not corroborative-in-nature; rather they have contradicted each other and as such High Court Division absolute the Rule. Md. Mafijuddin Mizi -Vs. Md. Abdul Khaleque Mizi and others (Civil) 20 ALR (HCD) 96-101 Code of Civil Procedure [V of 1908] Section 115(1) The case is pending for about thirteen years, but the petitioners did not take any step for hearing, rather the same came up in the list for hearing with the name of the learned Advocate for the petitioners, but no one appears when the matter was called on for hearing, and as such the Rule is discharged. The High Court Division held that findings arrived at by the court of appeal below having been rested upon consideration and discussions on the materials on record and also on a correct and proper analysis of legal aspects involved in the case. Moreover the High Court Division does not find any misreading or misappreciation on materials on record. So the finding of facts of the court of Appeal below as final court of fact is not liable to be disturbed by the High Court Division in exercise of power under section 115(1) of the Code. Therefore, there is, no warrant in law to interfere in the impugned order. In view of foregoing narrative the Rule is discharged. Ramjan Ali Fakir and others. -Vs.- Asmat Ali being dead his heirs Mofiz Uddin and others (Civil) 19 ALR (HCD) 223-224 Code of Civil Procedure [V of 1908] Section 115(1)-The plaint of the suit does not contain any specified land upon which they sought for decree, therefore, the settled principle of law is that a suit filed without any specified land the suit became not maintainable. If an entitlement is not proved by any valid and operative document, possession alone cannot establish any entitlement of immoveable property. The High Court Division is inclined to consider the judgment and decree passed by the learned courts below. The learned trial court came to a lawful conclusion to dismiss the suit filed by the present plaintiff-petitioners on the basis of the following finding: "ইতিপূর্বে আলোচনাক্রমে সিদ্ধান্ত গ্রহণ করা হইয়াছে যে, যে সম্পত্তি সম্পর্কে বাদীগণ স্বত্রের ঘোষণা দাবী করেন এবং উক্ত সম্পত্তিতে তাহাদের নির্মল স্বত্ব প্রমাণ করিতে ব্যর্থ হইয়াছেন এবং যে দুইটি দলিল তঞ্চকতাপূর্ণ এবং উহা বাদীদের উপর অকার্যকর মর্মে দাবী করিয়াছেন তাহাও বাদীপক্ষ প্রমাণে সক্ষম হন নাই। মোকাদ্দমায় ডিক্রী পাইবার জন্য বাদীপক্ষকে তাহাদের দাবী সন্দেহাতীত ভাবে প্রমাণ হওয়া আবশ্যক কিন্তু উহা করিতে বাদীপক্ষ বার্থ হওয়ায় বর্তমান আকারে ও প্রকারে সাক্ষী ও মোকাদ্দমায় বাদীপক্ষকে কোন প্রকার প্রতিকার পাইতে পারেন না।" Similarly the learned appellate court below also came to a concurrent finding in favour of the present defendant-opposite parties on the basis of the following finding: "উভয় পক্ষের স্বীকৃত মতে রাবেনূরের ০০৩৫ অযুতাংশ জমিতে স্বত বিদ্যমান ছিল। রাবেনুর তার স্বত্বাংশ পালিত কন্যা বিবি ওরফে পারভীন বরাবর বিগত ১৩/৬/৮১ ইং তারিখে ১৫৬৫৮ নং হেবা দলিল মূলে হস্তান্তর করেন। উক্ত জমি সহ কোহিনুর ও ইভু তাদের স্বত্বাংশের মোট ০০৮০ অযুতাংশ ভূমি ২ নং বিবাদী আলী আকবর বরাবর হস্তান্তর করেন। বিবাদী পক্ষ মৌক্ষিক ও দালিলিক সাক্ষ্য দ্বারা উহা প্রমাণ করেছেন।" From the above two judgments concurrently findings that the plaintiffs failed to prove their own case. On the other hand, the defendant-opposite parties have adduced and produced sufficient documents which proved their case, as such, the High Court Division is of the opinion that the learned courts below committed no error of law and there are proper consideration and proper reading of the evidence and the relevant laws. the High Court Division is not inclined to interfere into the impugned judgment and decree passed by the learned appellate court. Accordingly, the Rule is discharged. Hasen Banoo and others Vs. Md. Ali Akbar and others (Civil) 19 ALR (HCD) 306-308 Code of Civil Procedure [V of 1908] Section 115(1)-The plaintiffs must prove their own case. It is a settled proposition of law that in order to succeed, the plaintiffs must prove their own case and they can not depend upon the weaknesses, if any, of the defence case in this regard. The defence case may have many weaknesses. The defendants may have failed to prove their case and be out of possession of the suit property but the weaknesses of the defence case are no grounds for decreeing the suit. It transpires to the High Court Division that the plaintiff-opposite-parties are in possession of the suit property. Both the Courts below have correctly come to this finding. But this factum of possession of the suit property by the plaintiff-opposite parties can not ipso facto confer any title on them in relation thereto. What the High Court Division is driving at boils down to this: although the plaintiff-opposite-parties have proved their possessio in the suit property; yet they are bereft of any title thereto in view of the discussions made above and in the facts and circumstances of the case. It is a settled proposition of law that in order to succeed, the plaintiffs must prove their own case and they can not depend upon the weaknesses, if any, of the defence case in this regard. The defence case may have many weaknesses. The defendants may have failed to prove their case and be out of possession of the suit property as found by the Courts below; but the weaknesses of the defence case are no grounds for decreeing the suit. As the plaintiff-opposite-parties failed to prove their title to the suit property as detailed above, the Court of Appeal below committed an error of law resulting in an error in the decree occasioning a failure of justice. So the High Court Division finds merit in the Rule. Accordingly, the Rule is made absolute. Manindra Nath Roy and others Vs. Md. Shahidullah (Civil) 16 ALR (HCD) 60-64 Code of Civil Procedure [V of 1908] Section 115(1) read with Specific Relief Act [1 of 1877] Section 31-In the absence of any gross misreading or non-reading or non- consideration of any material piece of evidence by the last Court of facts, the impugned judgment does not call for any interference from this Revisional Court. The High Court Division held that the scope of a Civil Revision as postulated by Section 115 of the Code of Civil Procedure is very limited. The High Court Division does not find any gross misreading or non- reading or non-consideration of any material piece of evidence affecting the merit of the case. So the concurrent findings of the trial Court as well as the Appellate Court below are binding upon the Revisional Court. In a word, there does not appear to be any perverse finding recorded by the Appellate Court below in the judgment under challenge. In this context, it has been held in the decisions in the cases of Iqbal Hossain Talukder (Md)...Vs...Md. Joinal Abedin Talukder and 76 others, 55 DLR (HCD) 604 and Mohor Ali Bhuiyan....Vs... Michir Ali Bhuiyan and others, 15 MLR (AD) 500 that as there is no perverse finding in the judgments of both the Courts below, the concurrent findings of the trial Court and the Appellate Court below are binding upon the High Court Division being the Revisional Court. Precisely speaking, in the absence of any gross misreading or non- reading or non-consideration of any material piece of evidence by the last Court of facts, the impugned judgment does not call for any interference from this Revisional Court. Accordingly, the Rule is discharged. Md. Gias Uddin and others Vs.- Md. Azizul Haque Bhuiyan and others (Civil) 18 ALR (HCD) 137-141 Code of Civil Procedure [V of 1908] Section 115 (1)-The findings of facts as decided by the appellate court being the final court of facts are immune from interference in absence illegalities. of any The High Court Division held that the witnesses adduced from the side of the plaintiff are mere competent and trustworthy with regard to the defendant's witnesses. The plaintiff's witnesses have been thoroughly cross-examined from the side of the defendants, but their evidence appears to be sound and cogent and on the contrary, the evidentiary value of the defendant's witnesses are nil inasmuch as, their testimonies are full of ambiguity, discrepancy as well as inconsistencies and contradictory with the pleadings of the defendants. The learned trial court as well as the appellate court concurrently in their observation and findings rightly after proper appreciation of law and apprising evidences on records in its true perspective arrived at a conclusive decision that the plaintiff's case has been proved and there is no misreading and non-reading of evidence or non consideration of material facts resulting in an error in the decision occasioning failure of justice from the side of the learned appellate court by dint of which the impugned judgment and decree can be interfered with invoking section 115 (1) of the Code of Civil Procedure. Sagir Ahmed and others -Vs- Ataur Rab Chowd hury (Civil) 18 ALR (HCD) 175-179 দেওয়ানী কার্যবিধি, ১৯০৮ ধারা ১১৫(১)- পক্ষদ্বয়ের দলিলগুলি তুলনামূলক পর্যালোচনায় দেখা যায় যে, বিবাদীপক্ষের দলিলগুলির চেয়ে বাদীপক্ষের দলিলগুলি পূর্বে সম্পাদন/ রেজিষ্ট্রি হইযাছে। স্বাক্ষ্য দৃষ্টে বাদী এবং বিবাদী উভয় পক্ষই নালিশী জমি ভোগদখল করেন। এমতাবস্থায় প্রার্থীতমতে বাদী বাঁটোয়ারার প্রার্থনায় ডিক্রী পাওয়ার হকদার। রেকর্ড দৃষ্টে দেখা যায় যে, বিবাদীর প্রদর্শনী-ক দলিলে জমির পরিমাণ ৯৯ শতক স্কুলে অংকগুলি ভিন্ন কালিতে অভার রাইটিং করিয়া লেখা এবং অর প্রদর্শনী-ক দলিলের হলফনামায় তারিখের স্কুলেও অভার রাইটিং দৃষ্ট হয়। বিবাদী কর্তৃক বাদীর দলিল জাল মর্মে দাবী করিলেও বিবাদী তাহা প্রমাণে সমর্থ হন নাই। প্রদর্শনী-ক পর্যালোচনায় দেখা যায় যে, ইং ২৫০২৭৪ তারিখে সবজাননেছা উক্ত দলিলটি বিবাদীর বরাবরে এবং প্রদর্শনী-খ পর্যালোচনায় দেখা যায় যে, সবজান নেছা ইং ০৮.০৪৭৪ তারিখে রেজিষ্ট্রিকৃত ৯৩০৭ নং কবলা দলিল মূলে ১৬ ১/২ শতক জমি ১ নং বিবাদীর নিকট হস্তান্তর করিয়াছেন। প্রদর্শনী-খ দলিলের তপশীলে ভিন্ন কালিতে জমির পরিমাণ কাটাকাটি দৃষ্ট হয়। বিবাদীপক্ষের দাবী, ১ নং বিবাদী সবজাননেছা ঋণের টাকা পরিশোধ করিয়া কৃষি ব্যাংক হইতে দায়মুক্তির সার্টিফিকেট গ্রহণ করেন এবং ১নং বিবাদী বরাবর সবজাননেছা প্রদর্শনী-ক ও ঘ দলিল সম্পাদন ও রেজিষ্টি করিয়া দিয়াছেন বিবাদী উক্তরুপ প্রমাণে সমর্থ হন নাই। সর্বোপরি পক্ষদ্বয়ের দলিলগুলি তুলনামূলক পর্যালোচনায় দেখা যায় যে, বিবাদীপক্ষের দলিলগুলির চেয়ে বাদীপক্ষের দলিলগুলি পূর্বে সম্পাদন। রেজিস্ট্রি হইয়াছে। স্বাক্ষা দৃষ্টে বাদী এবং বিবাদী উভয় পক্ষই নালিশী জমি ভোগদখল করেন। এমতাবস্থায় প্রার্থীতমতে বাদী বাঁটোয়ারার প্রার্থনায় ডিক্রী পাওয়ার হকদার। বিজ্ঞ নিম্ন আদালত যথাযথভাবেই ডিক্রি প্রদান করিয়াছেন। বিজ্ঞ নিম্ন আদালতের রায় ডিক্রি হস্তক্ষেপ করার যুক্তিসংগত কোন কারণ নাই। উপরোক্ত অবস্থাধীনে অস্ত্র রিভিশনে কোন সারবত্তা নাই। ফলশ্রুতিতে খরচের বিষয়ে কোন আদেশ প্রদান না করে কলটি খারিজ করা হলো। মোঃ রহিম মিঞা মৃত্যুতে ওয়ারিশ মোঃ শফি উেদ্দিন মিশ্রণ গং-বনাম- আব্দুল গফুর প্রামানিক মৃত্যুতে ওয়ারিশ (Civil) 18 ALR (HCD) 248-250 Code of Civil Procedure [V of 1908] Section 115(1)-A simple suit for partial benami transaction is not at all maintainable in the eye of law. The High Court Division held that the impugned deed No. 1795 dated 15.03.1948 exhibit-2 Yakub Miah the predecessor of the plaintiff transferred 97 decimals of land to Rakimunnessa but the plaintiff filed the instant suit for declaration only for 19 decimals of land is benami transaction but they remain silent in respect of the rest quantum of the property of the impugned deed exhibit-2. So, a simple suit for partial benami transaction is not at all maintainable in the eye of law. Nurunnabi Sawdagar and others Vs. Habibur Rahman being dead his heirs 1(a) Rahima Begum and others (Civil) 16 ALR (HCD) 224-228 Code of Civil Procedure [V of 1908] Section 115(1) read with Bengal Tenancy Act [VIII of 1885] Section 156(B)-No auction can be acted upon without taking possession by dispossessing the party who are in possession of the suit land. Second application for taking possession beyond 3 years from date of confirmation of sale is not maintainable. Since the defendants claimed that they are the co-sharers of the suit land and also other co-sharers have not been made parties in the suit in such a possession of the case the plaintiffs cannot get any relief without any prayer for partition of the suit land. The High Court Division further held that the appellate court opined that the plaintiffs did not take any step to dispossess the defendants as per provision of law which is a finding of fact the same cannot be interfered with. Upon consideration of the evidence on record and the impugned judgment of the appellate court it is view of the High Court Division that the appellate court after proper appreciation of facts of the case rightly setting-aside the impugned judgment of the trial court which cannot be interfered with in revisional jurisdiction under section 115(1) of the Code of Civil Procedure. Khodeja Begum, wife of Late Abdul Haque and others. -Vs- Sona Ullah Sheikh and otherss (Civil) 16 ALR (HCD) 205-208 Code of Civil Procedure [V of 1908] Section 115(1) read with Specific Relief Act [I of 1877] Sections 39 and 42 read with Mahomedan Law Section 168-When the plaintiff himself is a party to a kabala a purely declaratory suit is not maintainable. The plaintiff must seek further con- consequential relief by way of cancellation of the deeds. Absence of a prayer for consequential relief of cancellation of the deed on payment of advalurem court fee the suit is not maintainable. The High Court Division held that the instant suit is declaratory suit. The plaintiffs instituted the instant suit for a declaration that Heba-bil-Ewaz deed is illegal, unlawful, ineffective and void. The plaintiffs are the party of the aforesaid deed. This is by now an established law that when the plaintiff himself is a party to a kabala a purely declaratory suit is not maintainable. The plaintiff must seek further consequential relief by way of cancellation of the deeds. Absence of a prayer for consequential relief of cancellation of the deed on payment of advalurem court fee the instant suit is not maintainable. Moreso, the plaintiffs did not discharge the primary onus to prove that the impugned deed was not executed by them. Considering the facts and circumstances of the case the High Court Division finds substance in this Rule. In the result, the Rule is made absolute. Md. Tota Miah and others -Vs.- Md. Wali Miah and others (Civil) 16 ALR (HCD)159-161 Code of Civil Procedure [V of 1908] Section 115(1)-When the defendants had taken forceable possession without lawful authority and the suit was filed within 6 months, it is incumbent upon the court to restore possession of the plaintiff in the suit land in accordance with the boundary demarcation specified in the schedule to the plaint. The High Court Division held that Professor Nurun Nahar Ahmed on 1.11.1982 by two registered sale deeds No. 3821 and 3822 sold suit land measuring 1650 decimals of land to the plaintiff opposite party and handed over the possession therein with specified boundary given in the schedule of the kobalas. After purchase in 1982, plaintiff mutated his name in the khatian and paid rent. At the time of purchase the suit land was low lying area and the purchaser plaintiff cultivated boro paddy through borgadar and developed the land by earth, spending money. Therefore the High Court Division cannot go beyond the decree passed by the court below. The impugned order suffers wrong finding an area as 16.50. While disposing of the suit judgment passed in Civil Revision No. 4382 of 2008 it has been stated as follows: "When the defendants had taken forceable possession without lawful authority and the suit was filed within 6 months, it is incumbent upon the court to restore possession of the plaintiff in the suit land in accordance with the boundary demarcation specified in the schedule to the plaint." Therefore the court below has committed wrong with regard to the area of land. The area as found in the plaint, decree and the application filed by the plaintiff is an area of 1650 decimals of land. Therefore the impugned order suffers infirmity as stated in the impugned order therefore, it is set aside and the High Court Division finds substance in this Rule. Accordingly the Rule is made absolute. Manzur Quader and another -Vs. Wali Ahmed (Civil) 16 ALR (HCD) 258-261 Code of Civil Procedure [V of 1908] Section 115(1), Order III Rule 1 and 2 read with Specific Relief Act [I of 1877] Section 9-In case of recovery of possession under section 9 of the Specific Relief Act the title should not be considered but only to consider whether Plaintiff was in possession of the suit land and has been dispossessed by the defendant. The High Court Division observed that the trial court after consideration of the evidence on record opined that the plaintiff took possession of the suit land after purchased of the same and he was dispossessed from the suit land by the defendant on 25.04.1994 and the suit has been filed within time, So, he is entitled to get recovery of possession of the suit land which is right decision of the trial court. The defendant claimed that he purchased the suit land long before of the plaintiff from another co-sharer of the case jote which may be considered if the parties claimed their title in a separate procedure of law. If the defendant wants to get his relief he can take step in another procedure of law, but since this is a case of recovery of possession under section 9 of the Specific Relief Act the title can not be considered in this procedure. So it is view of the High Court Division that the trial court rightly passed the impugned judgment which cannot be interfered with in revisional application. Md. Jalaluddin Vs.- Md. Harun-ar Rashid (Civil) 16 ALR (HCD)345-348 Code of Civil Procedure [V of 1908] Section 115(1) read with Family Court Ordinance, 1985 Section 5-The dispute between the parties regarding maintenance and dower can only be adjudicated upon by the concerned Family Court and no civil court has any authority or jurisdiction to deal with the aforesaid matters. The High Court Division observed that the learned Family Court Judge, Kaligonj on correct appreciation of the facts and law involved in the matter rightly and legally rejected an application to stay further proceeding of the Family Case till disposal of the Suit filed by the defendant petitioners. The High Court Division does not also find any cogent and plausible ground to interfere with the impugned order. Md. Wahidur Rahman and others. - Vs. Mst. Shampa Reza (Kusum) (Civil) 15 ALR (HCD) 163-164 Code of Civil Procedure [V of 1908] Section 115(1)-When the partition. suit is barred by defect of parties. The trial Court as well as the appellate Court below over looked the fact of non joinder the heirs of one of the co-shrer Sajahan as parties neither in the suit nor in the proceedings of appeal, as such the Court below erred in law and came into an erroneous decision which resulted in an error in the decision occasioning failure of justice. The High Court Division held that it has been categorically mentioned that during pendency of the appeal that the contesting defendant no. 4 Shajahan died during the pendency of the Civil Suit no. 130 of 2007 leaving behind his wife, one daughter Monira and one son Rafique. These factual aspect was admitted by the plaintiff while he was examined as witnesses and where in his cross examination but the heirs of the said Shajahan were not made parties neither in the suit nor in the appeal by the plaintiff opposite parties in such a suit of partition. Thereby it appears that the suit of the plaintiff was barred by defect of parties but the Court of appeal below failed to consider these legal aspects and as such it committed an error of law in his decision occasioning failure of justice. Alauddin and others -Vs.- Md. Salam and others (Civil) 15 ALR (HCD) 265-268 Code of Civil Procedure [V of 1908] Section 115(1) read with Transfer of the Property Act [IV of 1882] Section 53A read with Specific Relief Act [1 of 1877] Section 12-Whether the bainapatra dated 16.01.2003 is a valid document and whether the document can be a contract to sale and whether a suit for Specific Performance of Contract can be filed. The High Court Division has carefully examined the document submitted by the parties in the courts below which has been exhibited and the High Court Division found that the plaintiff has proved that there was a bainapatra given by the defendant in order to sale the suit land mentioned above after receiving a certain amount of money of the total consideration money. The learned Advocate for the petitioner submits that a forceful signature is a criminal offence and such signature does not create any contractual obligation but he informed to the High Court Division that the possession of the suit land was handed over to the plaintiff after amendment of the baina on 16.01.2003. Under the provision of Section 53A of the Transfer of the Property Act the present plaintiff-opposite party can get a right and interest upon the suit land by operation of law, as such, the present-defendant petitioner is under an obligation to execute a sale deed in favour of the plaintiff- opposite party after receiving remaining Taka 15,000/- (fifteen thousand) only pursuant to the baina dated 16.01.2003. After considering the evidence produced by the parties, the learned trial court decreed the suit and the appellate court dismissed the appeal by the impugned judgment and decree and thereby committed no error of law by passing the concurrent judgment. The High Court Division is therefore, not inclined to interfere into the impugned judgment and decree passed by the learned appellate court. In the result, the Rule is discharged. Md. Sohrab -Vs- Dr. A.K. Azad (Civil) 15 ALR (HCD) 184-186 Code of Civil Procedure [V of 1908) Section 115(1)-Remand It is the plaintiffs failure to prove their case by producing their documents before the trial court, in accordance with law. For the failure of the plaintiffs to prove their case and documents filed before the trial court the appellate court cannot create any avenue to fill up the lacuna of the parties. The High Court Division held that the appellate court committed an error of law sending the suit on remand to the trial court as well as not considering the evidences of the parties in respect of possession of the plaintiffs in the suit property. However, the plaintiffs can file a properly constituted title suit for declaration of title along with other consequential relief if so advised. In view of the above this finds merit in the rule as well as in the submissions of the learned Advocate for the petitioner. In the result, the Rule is made absolute. Md. Danesh Ali Vs. Md. Azimuddin Sheikh and others (Civil) 15 ALR (HCD) 335-337 Code of Civil Procedure [V of 1908] Section 115(1)-Suit for permanent injunction. It is a settled principle of law that in a suit for permanent injunction plaintiff is to prove his prima facie title and exclusive possession over the suit land. On going through the records and perusing the judgments of both the Courts below along with the depositions adduced by the parties and also going through the exhibited documents, it appears to the High Court Division that the observations made by the learned Munsif, Sreenagar, Munshigonj is justified. He has properly assessed the evidence on record and able to find out prima facie title of the plaintiff petitioner's over the suit land and correctly decreed the suit on contest. But the learned Subordinate Judge, Munshigonj without applying his judicial mind and proper assessment of evidences has brought out a new case and thus, illegally allowed the appeal. It is a settled principle of law that in a suit for permanent injunction plaintiff is to prove his prima facie title and exclusive possession over the suit land. The P.Ws. as well as the defendant side in their deposition disclosed that the suit land is being possessed by the plaintiff side. Since, the plaintiff is able to prove his prima facie title and exclusive possession over the disputed property, then the High Court Division is of the view that the judgment and decree passed by the learned Munsif, Sreenagar, Munshigonj be confirmed and maintained. In the aforesaid circumstances, the submissions submitted by the learned Advocate of the plaintiff petitioner bears substance. In these premises, the Rule merits consideration. Accordingly, the Rule is made absolute. Sheikh Abdul Ali -Vs- Sheikh Borhanuddin and others (Spl. Original) 21 ALR (HCD) 223-226 Code of Civil Procedure [V of 1908] Section 115(1) read with State Acquisition and Tenancy Act, 1950 Section 144 Sale certificate without supporting writ of delivery of possession does not fulfill the sale and does not confer upon the title upon the purchaser. The High Court Division held that in this case sale certificate without supporting writ of delivery of possession and the self- contradictory claim of the plaintiffs regarding their purchase proves that they have no prima face title in their favour. Malok Patwary and others -Vs- Asrabinnessa and others (Civil) 21 ALR (HCD) 345-347 Code of Civil Procedure [V of 1908] Section 115(1) read with Specific Relief Act [I of 1877] Section 54 A simple suit for permanent injunction should not be allowed to be used as a testing device for ascertainment of title. The High Court Division held that if the dispute involves complicated questions of title, the plaintiff must establish his title by filing a regular suit for declaration of title. A simple suit for permanent injunction should not be allowed to be used as a testing device for ascertainment of title. In this case the plaintiff assails the presumption of the Khatian, a kind of exercise the Court in a simple suit for permanent injunction should ordinarily avoid. Assistant Horticulturist -Fs.- MA Sattar Bhuiyan and others (Civil) 21 ALR (HCD) 348-356 Code of Civil Procedure [V of 1908] Section 115(1) read with Succession Act [XXXIX of 1952] Section 372 সাকসেসান এ্যাক্ট ১৯২৫ এর আওতায় দাখিলী উক্ত আইনের ৩৭২ ধারায় Succession Certificate ইস্যুর প্রার্থনা এবং পক্ষগণের স্বত্ব নিয়ে বিরোধ সংক্রান্ত দেওয়ানী মামলা ভিন্ন প্রকৃতির কাজেই independently সাকসেসান মিছ মামলা চলতে বাধা নাই। অধিকন্তু আপত্তিদানকারী প্রতিপক্ষগণ লিখিত আপত্তি দাখিল করে প্রার্থীকপক্ষের স্বাক্ষীগণকে জেরা করেছেন। কাজেই সাকসেশান মামলাটি আইনতঃ অচল কিনা তা স্বাক্ষা গ্রহণ শেষে চূড়ান্ত সিদ্ধান্তে বিবেচিত হতে পারে। সার্বিক বিবেচনায় প্রতিপক্ষের দাখিলী বিগত ২০/০১/২০১৪ ইং তারিখের দরখাস্তটি এ পর্যায়ে না মঞ্জুর। The High Court Division held that the court took view that after taking evidence it should be considered whether the petitioner is entitled to get succession certificate as a legal heir of late Fazlur Rahman or not. Considering the facts of the case it is the High Court Division view that the said observation made by the trial court is a proper observation which need not be interfered with. However, Mr. Md. Dider Ali Fakir, the learned Advocate submits that the court may give opportunity to the parties to prove their respective cases by adducing evidence and no bar to adduce evidence by the parties before disposal of the case. In the result, the Rule is discharged without any order as to cost However, the Succession court is at liberty to give opportunity to the parties to adduced evidence to prove their respective cases and succession court is directed to dispose of the proceedings as early as possible preferably within 3 (three) moths from the date of receipt of the judgment. Mosamat Najma Aktar and others. -Vs.- Md. Sabbir @ Sabbir Ali. (Civil) 21 ALR (HCD) 19-21 Code of Civil Procedure [V of 1908] Section 115(2)- Substantially both the suits have involved the question of genuineness of the Kabala dated 07.07.1980 and the decision of one suit will hang the merits of another suit and as such he frankly submits that it is a fit case of consolation of both the suits instead of stay of any of the suits. The High Court Division held that on the self-same subject matter two suits are pending before the same Court. One Mahmuda Bibi, the original plaintiff of earlier Title Suit No. 455 of 1980 challenged the Kabala dated 07.07.1980. On the other hand, Md. Rois Ali, the predecessor-in-interest of the present opposite parties brought the subsequent suit being Title Suit No. 20 of 1998 for a declaration of title in the suit land on the basis of Kabala dated 07.07.1980. So, the decision of any of the suits will hang the merit of the other. In such a situation, the High Court Division is of the view that it is a fit case for the consolation of the two suits instead of the separate proceeding and accordingly, the High Court Division finds no illegality in the decision arrived at by the learned District Judge in CR No. 22 of 2004. It seems to me that both the parties will try to get their suits heard and justice would be met if both the suits heard analogously and disposed of accordingly. Most. Mahmuda Bibi Vs. Rois Ali and others (Civil) 19 ALR (HCD) 42-44 Code of Civil Procedure (V of 1908] Section 115(4) The trial court has the ample authority either to allow or reject the adjournment sought by the parties but the learned Judge by closing the evidence denied the defendant's right to prove their case. In such situation the High Court Division feels that. defendants may be given chance to examine their witnesses and to prove their case. It transpires to the High Court Division that the suit was instituted in the year of 2007, at now, the suit is pending for final hearing where in the defendants repeatedly took adjournment for hearing of the suit. The defendant petitioner lastly prayed for adjournment on the ground of urgency. It is pertinent to point out that, the learned Judge of the trial court allowed adjournment and closed the evidence of the defendants. The trial court has the ample authority either to allow or reject the adjournment sought by the parties but the learned Judge by closing the evidence denied the defendant's right to prove their case. In such situation the High Court Division feels that, defendants may be given chance to examine their witnesses and to prove their case. The learned Judge of the court of Revision below without appreciating the material facts most erroneously affirmed the order of the trial court, which cannot be sustained in the eye of law. Having considered the facts and circumstances of the case, the High Court Division is of the view that ends of justice would best be served if the defendants be given chance to examine their witnesses and to prove their case by evidence. In the result the Rule is disposed of Most. Tahmina Bashar (Moon) -Vs. Most. Jariatul Halim (Jhorna) and others. (Civil) 23 ALR (HCD) 52 Code of Civil Procedure [V of 1908] Section 115(4) read with Order VII, Rule 11 In deciding an application under Order VII, Rule 11 of the Code of Civil Procedure for rejection of the plaint the Court is not permitted in law to travel beyond the averments made in the plaint. The High Court Division held that the learned Judge of the revisional Court below appears to have considered all the material aspects of the case and justly upheld the order of the trial Court dated 20.01.2019 rejecting the application under Order VII, Rule 11 of the Code of Civil Procedure. Therefore, does not find any possible reason to differ with the view taken by the Courts below. The impugned judgment is found to be well-reasoned. The High Court Division, therefore, does not find any illegality or legal infirmity in the impugned judgment occasioning failure of justice so as to justify interference by the High Court Division exercising revisional power under section 115(4) of the Code of Civil Procedure, the High Court Division finds no merit in the revision, which must fail accordingly. In the result, the Rule is discharged. Super, Rahmotnagar Islamia Dakhil Madrasha, Patuakhali and another. Vs. Most. Ishfat Jahan Sheuli and others. (Civil) 21 ALR (HCD) 252-253 Code of Civil Procedure [V of 1908] Section 115(4) The Succession Case cannot be stayed on the ground of filing a subsequent suit challenging the genuineness of the Kabinnama, the High Court Division does not find any illegality in the impugned order passed by the learned Joint District Judge. It is evident to the High Court Division from the Judgment passed by the Revisional Court below in Civil Revision No. 01 of 2015 it appears that the learned District Judge considered the grounds taken by the present petitioners in that Revision and disposed of the same. The learned District Judge recorded the findings that as the Title Suit No. 300 of 2011 was filed after filing of the Succession Case No. 01 of 2010, the Succession Case cannot be stayed on the ground that the Kabinnama has been challenged in the later suit, and that the petitioners could not file any documents in favour of their claim and with the aforesaid findings affirmed the order passed by the trial Court on recalling the earlier stay order. From the written objection filed in the Succession Case by the defendant petitioners it appears that, they have denied the marriage of Dr. Humayun Kabir with the applicant No. 1 of Succession Case. With the same denial they have filed the subsequent Title Suit No. 300 of 2011. So, the genuineness of Kabinnama may be resolved by adducing evidence in the Succession Case, Accordingly, the High Court Division hold that the Succession Case cannot be stayed on the ground of filing a subsequent suit challenging the genuineness of the Kabinnama, the High Court Division does not find any illegality in the impugned order passed by the learned Joint District Judge and this Rule has no merit. In the result, the Rule is discharged. Shamima Begum and others. -Vs. Sara Banu and others. (Civil) 20 ALR (HCD) 75-77 Code of Civil Procedure [V of 1908] Section 115(4) read with Order VI rule 17 The amendment of pleading should not be refused unless; first, the pleading. is wholly displaces by the amendment and secondly, the amendment introduces a different new story and inconsistent case. The High Court Division held that in the instant case, the amendment sought for by the petitioners introducing a new story by taking new stand reversed to the original written objection and by such amehdment a completely new and alternative facts will be introduced in the written objection and the purpose the amendment introduces a different new story and inconsistent case. Therefore, in view of the above, the High Court Division is of the view that, since the instant Rule is obtained against an order, the High Court Division needs not enter into the merit of the case and suffice it to say that the learned Judge of the revisional court below has not committed an error of important question of law in the decision in rejecting the revisional application. In view of the discussions and reasons stated above, the High Court Division is of the view that the impugned judgment and order of the revisional court below suffers from no legal infirmity which calls for no interference by the High Court Division in exercising revi- sional power under section 115(4) of the Code of Civil Procedure. Thus, the High Court Division does not find any merit in the Rule. In the result, the Rule is dis- charged. Mina Rani Sarker and others. - Vs.- Dilip Kumar Sarker and others. (Civil) 19 ALR (HCD) 21-22 Code of Civil Procedure [V of 1908] Section 115(4) Order VI Rule 17-It is the well settled principle of law that the parties may amend their pleadings, if necessary, and the Court may, at any stage of proceeding, allow such amendment if found to be necessary for the purpose of determining the real question in controversy between the parties; or to avoid conflict of decisions and multiplicity of the suits; or to adjudicate and settle all controversies between. the the parties completely and effectively and also to add an alternative claim or relief or an alternative defence. But if the parties had the opportunity to seek it at the time of filing of the suit or written statement, the amendment sought cannot be allowed. The High Court Division observed that in the case in hand, the Assistant Judge, as well as the Additional District Judge, 5th Court, Chittagong have considered all those aspects in disposing the matter and found that the proposed amendment in no way changes the nature and character of the suit, rather it was necessary for effective disposal of the suit and to dissolve all the questions of controversy between the parties. The High Court Division finds nothing wrong in the judgment and order passed by the revisional Court. In passing the impugned judgment and order the Additional District Judge, committed no error of an important question of law for which this Court can interfere with the same under section 115(4) of the Code. The High Court Division finds no substance in the submission made by the learned counsel for the petitioner. The principles enunciated in the cases cited by the plaintiff-opposite party as above, reported in 27 BLD 220, 60 DLR (AD) 42 and 43 DLR 182 are very much applicable in the present case and those go against the petitioner. In view of the discussion made herein above, this Rule bears no substance. in the result, the Rule is discharged. Salena Morseda Chowdhury -Vs. Md. Badruddin Bacchu (Civil) 19 ALR (HCD) 66-69 Code of Civil Procedure [V of 19081 Section 115(4)-The trial court can decide the fate of the Advocate Commissioner's report after evaluating the facts of the case and the evidence adduced from the sides of the respective parties at the time of disposal of the suit finally. The High Court Division is constrained to hold such a view that, there is nothing to interfere with the impugned judgment and order passed by the 1st Court of revision as the High Court Division finds no illegality or infirmity in the order passed by the trial court in Other Class Suit No. 81 of 2007. The trial court can decide the fate of the Advocate Commissioner's report after evaluating the facts of the case and the evidence adduced from the sides of the respective parties at the time of disposal of the suit finally. Rakhal Chandra Barua and another Vs. Subrata Dhar and others. (Civil) 19 ALR (HCD) 117-119 Code of Civil Procedure [V of 1908] Section 115(4)- Since the District Judge is in seisin of the matter the defendants ought to have completed the hearing of the said revisional application but without exhausting the said forum illegally filed the revision under section 115(4) of the Code of Civil Procedure before the High Court Division and the high Court Division erred in law in entertaining the said civil revision. The Appellate Division held that it appears that the learned District Judge is in seisin of the matter. At such, the Appellate Division is not going to make any observation on merit. Let the District Judge, Dhaka, be directed to decide the matter by 31st January, 2011. In the meantime, the parties are directed to maintain status-quo till that date. However, let the interim order dated 16.01.2011 passed by the High Court Division at the time of issuance of the Rule in Civil Revision No. 83 of 2011, be set aside. With the above directions, the Civil Miscellaneous Petition is summarily disposed of. Saiful Alam Vs. Kamal Uddin Sabuj and others (Civil) 16 ALR (AD) 96-97 Section 116 We have heard Mr. Abdul Quayum, the learned Advocate for the petitioner, Mr. Mahmudul Islam, the learned Advocate for the respondent No.2 and Mrs. Sufia Khatun, the learned Advocate-On- Record appearing for the respondent No.4, perused the leave petition, im- pugned judgment and order passed by the High Court Division and all other connected papers on record. It appears that one Zobeda Khatun purchased the disputed land from Bholanath Sharma in 1954 by a registered deed of sale wherein it was mentioned that the plaintiffs were tenants and Zobeda Khatun has right to recover rent from them. Bholanath served notices upon the plaintiffs to pay rent to Zobeda Khatun who recorded her name in S.A. Khatian and mutated her name in the City Cor- poration and paid all taxes. Thereafter Zobeda Khatun claimed rent from the plaintiffs several times but they did not pay rent. Thereafter the ejectment suit was filed against the plaintiffs but they agreed to vacate the suit land and conse- quently Zobeda Khatun sold the suit land to the defendant No.1 and deliv- ered physical possession to him. The defendant No.1 recorded his name in R.S. Khatian and mutated his name in the City Corporation and thereafter he sold the same to defendant Nos.2 and 3 by separate registered deeds of sale and delivered possession. The plaintiffs failed to pay rent and vacate the suit land. The defendants filed suit against the plaintiffs for ejectment which is pending for disposal. Sree Ramjan Kumar Roy vs. Abdul Haque (Md. Muzammel Hossain J) (Civil) 10 ADC 68 Section—141 The provision of Section 141 C.P.C. is applicable to a proceeding under Section 96 of the State Acquisition and Tenancy Act, 1950, although It is not a suit proper. Shanti Ranjan Baroi and another Vs. Sri Jogesh Baroi and another, 14 BLD (HCD) 121. Sections—141 and 144 Proceedings mentioned in section 141 C. P. C. refer to original cases in the nature of suits, such as a probate case, a guardianship case and the like and not the other cases which do not originate in themselves but arise out of suits or other proceedings. A proceeding under section 144 C.P.C. is not an original proceeding and as such procedures in regard to suits are not applicable to it. Ibrahim Munshi and others Vs. Tamizuddin Bhuiyan, 14 BLD (HCD) 527. Ref: AIR 1965 (SC)1477; 17 All 106 (P. C)—Cited. Code of Civil Procedure [V of 1908] Section 141 read with Order 39 Rule 1 Section 214(10) and 216 Whether the Labour Court can dispose of the maintainability of the proceedings at the initial stage. Section 216 clearly provides that the Labour Court shall for the purpose of adjudicating and determining any industrial disputes be deemed to be a civil court and shall have the same powers as are vested in such court under the Code of Civil Procedure and the powers have been enumerated in clauses (Ka) to (Sha) of sub-section (1) read with section 214(10). Since the Labour Court has all trappings of a Civil Court, in appropriate cases it can pass an interim order including the power to decide the maintainability of the complaints. It is now settled that in a miscellaneous proceedings the court cannot pass any interim order under Order 39 Rule 1 of the Code of Criminal Procedure, inasmuch as, it is not a suit but in view of section 141 of the Code of Civil Proce- dure, it can pass an interim order under inherent powers. The court can reject a plaint in exercise of inherent powers under section 151 of the Code of Civil Procedure if it is found that on the admitted facts that the plaint is otherwise barred by law. The Appellate Division observed that the High Court Division held that the workers' recourse to section 213 of the Ain is not invariably dependant on the availability of the court's remedy under section 33 and that the complaints were maintainable. It has illegally entered into the merit of the matter in failing to consider that the Labour Court has not decided the matter on merit. The question is whether the Labour Court can decide the petition of maintainability of the complaints filed by the respondent. It has overlooked the question as to whether the Labour Court can dispose of the maintainability of the proceedings at the initial stage. Section 216 clearly provides that the Labour Court shall for the purpose of adjudicating and determining any industrial disputes be deemed to be a civil court and shall have the same powers as are vested in such court under the Code of Civil Procedure and the powers have been enumerated in clauses (Ka) to (Sha) of sub- section (1) read with section 214(10). As observed above, on a plain reading of these provisions, we have no hesitation in holding the view that since the Labour Court has all trappings of a Civil Court, in appropriate cases it can pass an interim order including the power to decide the maintainability of the complaints. Even if it is assumed that the Order 7 Rule 11 is not applicable, the Labour Court can pass such order under its inherent power. The inherent powers of the court are very wide and residuary in nature and not controlled by any other provisions of the Code of Civil Procedure. This power has been recognized from before the Code of Civil Procedure came into force and this inherent power under section 151 has been inserted in the Code to supplement the other provisions of the Code. It is a power inhe rent in the Code by virtue of its duty to do justice between the parties before it. If the Code of Civil Procedure does not provide any remedy, the court cannot say that it has no power to pass any order. It can pass any order as are necessary to prevent the abuse of the process of the court and also to curb out frivolous litigations. It is now settled that in a miscellaneous proceedings the court cannot pass any interim order under Order 39 Rule 1 of the Code of Criminal Procedure, inasmuch as, it is not a suit but in view of section 141 of the Code of Civil Procedure, it can pass an interim order under inherent powers. This Court in Civil Appeal No. 204 of 2003 held that a plea of resjudicata is a mixed question of fact and law, and therefore, Order 7 Rule 11 is not applicable for rejection of a plaint. However, the court can reject a plaint in exercise of inherent powers under section. 151 of the Code of Civil Procedure if it is found that on the admitted facts that the plaint is otherwise barred by law. It further held that the court should not feel helpless in circumstances to administer substantial justice and make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. If the court can exercise power for securing ends of justice, it can be said that the powers of the court are wide enough and residuary in nature and not controlled by any other provisions of the Code of Civil Procedure. It further held that in appropriate cases it can exercise its power to resolve a claim in order to prevent the abuse of the process of the court or to fill up the lacuna left by legislature or where the legislature is unable to foresee any circumstance which may arise in a particular case. Though, the Appellate Division finds that the views taken by the High Court Division are not correct, the Appellate Division is not inclined to grant any leave in these petitions and left the matter to be decided by the Labour Court and if it finds that the complaints filed by the respondents are not maintainable, it can pass necessary orders in exercise of its inherent power. Whatever observations made by the High Court Division touching to the merit of the matters are hereby expunged. These petitions are disposed with the above observations and findings. Robi Axiata Ltd -Vs. First Labour Court, and others (Civil) 21 ALR (AD) 81-86 Section—151 Limitation Act, 1908 (IX of 1908), Section—5 When it is the duty of the court not to pass any order behind the back of a party which would adversely affect such party, and the court is also obliged to correct its own default, if any, by invoking its inherent jurisdiction, the question of filing application under section 5 of the Limitation Act does not arise. Md. Habibur Rahman and others Vs Md. Abdur Rashid and others, 21 BLD (HCD) 227. Section—151 Under Section 151 C.P.C. the inherent power of the Court can be exercised only where the provisions of CPC does not provide any remedy. The learned Subordinate Judge acted illegally in revoking the Succession Certificate earlier granted by exercising power under Sec. 151 C.P.C. Dudu Miah and others Vs. Sikandar Ali and others, 14 BLD (HCD) 228. Section—151 When an injury is caused to a party due to any mistake or default committed by a court or its officers there are high authorities laying down that in circumstances of this nature, it is not only right but the duty of the court to correct its own mistake. Md. Habibur Rahman and others Vs Md. Abdur Rashid and others, 21 BLD (HCD) 227. Ref: Keramat All Bhuiyan Vs. Ramizuddin Amed, 43 DLR(AD)58-relied. Section—151 Section 151 codifies the well established legal principle that every court has inherent power to act exdebite justicies to that real and substantial justice for which alone the court exists, or to prevent abuse of the process of the court. The courts are to act upon the principle that every procedure furthering the cause of justice is to be understood as permissible till it is shown to be prohibited by law. The inherent powers referred to in section 151 are such as are used to secure the ends of justice or to prevent the abuse of the process of the court. Although ‘no revisional application was filed before this court against an order that was not appealable or an order passed on an application under section 151, following the above principle this court can interfere and correct the error committed by the learned subordinate judge. Makbul Ahmed, being dead, his heirs, and others v. Mohammedullah and others, 22 BLD (HCD) 120. Ref: M. A. Wahab and another v. Abul Kalam and another 44 DLR (AD) 13; Mohammad Ramzan Sawadagar v. A.H.M. Fazlul Huq 15 DLR99; 34DLR325. Section 151, 152, 153 Section 152 C.PC. is based upon the broad principle (i) that any act or omission of the court shall prejudice none of the parties of the proceeding and (ii) that the courts of law by virtue of their very existence as institutions for doing justice shall have a duty to see that their records are true and that they represent correct state of affairs. Md. Siddiqur Rahman vs Profulla Bala Divi (Mohammad Abdur Rouf J(Civil) 2ADC 270 Section—151 Ordinarily when a Court has made a mistake the aggrieved party has to get it corrected by way of appeal or revision or review. Invoking inherent power of the Court under section 151 CPC which is intended only to secure the ends of justice or to prevent the abuse of the process of the Court. The ends of justice contemplated under section 151 CPC extends to all the litigating parties before the Court and not confined to the right of only one of them. Section 151 of the Code should be applied with great caution only for securing the ends of justice. In order to decide whether ends of justice require the application under section 151 Cr.P.C to a particular case, the Court has to keep in view not only the interest of the applicant but also that of the other side. Abdul Bashir Vs Abdur Rashid and others, 21 BLD (HCD) 453. Section—151 Power of Executing Court In the execution proceeding the application was filed by the decree holder for partition and for possession. Without filing a partition suit the executing court cannot pass an order for possession when the decree itself does not contemplate such possession of the property by metes and bounds. This exercise of jurisdiction by the executing court is palpably erroneous and without jurisdiction. M. Majid Vs Iqbal Bahar Chowdhury and others, 20 BLD (AD) 149. Section—151 in the Artha Rin Adalat Am no provision has been made for the return and rejection of the plaint as contemplated under Order VII Rules 10 and 11 of the Code. When an Artha Rin Adalat having no jurisdiction entertains a suit wrongly and proceeds with it, the aggrieved party cannot be left without any remedy. If it is evident on the face of the record that the Artha Rin Adalat has wrongly assumed jurisdiction and is illegally, proceeding with a suit, the High Court Division may act under Section 151 of the Code, which provides that nothing in the Code limits or otherwise affects the inherent power of the Court to make such orders as may be necessary to secure the ends of justice or otherwise to prevent an abuse of the process of the Court. In exercise of the inherent power the High Court Division directed the Artha Rin Adalat to return the plaint to the filing Advocate for presentation before the appropriate Court. Kazi Jawaherul Islam (K.J. Islam). Vs. Standard Co-operative Credit Society Limited & ors, 18 BLD (HCD) 311. Section—151 The Court has inherent power to rectify its own mistake or any mistake committed by any Court official causing prejudice to a particular party, for no fault of its own, by resorting to the provision of section 151 C.P.C. a party cannot be made to suffer for the mistake done by the Court and the aggrieved party cannot be pushed to take recourse to any ardourous, costly and time-consuming exercise for rectifying such a mistake. In such circumstances, exercise of power under section 151 of the Code is not only permissible but also imperative for preventing an injustice. Availability of an alternative remedy under other provisions of the Code does not always stand in the way of exercise of the inherent power of the Court for doing even-handed justice for which alone the Court exists. Abdul Mannan Sikder Vs. Matilal Dhupi and others, 18 BLD (HCD) 318. Section—151 Inherent powers of the Court When the contending parties did not raise any objection against the Commissioner’s Report and it was accepted by the Court and the final decree was signed and sealed interference with the said final decree under Section 151 C.P.C. at the instance of an indolent party is not contemplated in law. Sabirannessa and others .Vs Kabir Ahmed and others, 16 BLD (HCD) 202. Section—151 When there is a specific provision in the Code for a remedy the Court cannot invoke its inherent power u/s 151 C.P.C. by-passing the express provision of law. Mowlana Mohammad Rafiqul Islam Vs upazila Nirbahi Officer and others, 16 BLD (HCD) 209. Ref: 29 DLR(SC) 185—Cited. Section—151 When a specific provision for appeal has been provided in the Code, the Court cannot exercise its inherent power under Section 151 of the Code of Civil Procedure. Md. Shahidur Rahman Majumder alias Md. Shahidullah Majumder and others. Vs. Sabirunnessa and others, 16 BLD (AD) 50. Section—151 Stay of further proceedings of a previous suit When it is found that the petitioner unsuccessfully moved upto the Appellate Division against the preliminary decree passed in O.C. Suit 44 of 1978 and on the self-same grounds he has filed a, fresh suit challenging the legality of the said decree, it is apparent that he has resorted to dilatory tactics to deprive the respondents of the fruity of the decree. The learned Courts below were perfectly justified in rejecting the petitioner’s prayer for staying further proceedings of the previous suit. Jamil Akhter V Khurshed Anwar and another, 16 BLD (HCD) 171. Section—151 Inherent Powers of the Court In a case where there are allegations of fraud practiced upon the Court an application under section 151 C.P.C would lie but when the allegations are that fraud was practiced upon a party to the proceeding, an application under section 151 C.P.C. at the instance of the aggrieved party would not lie. In the later case the proper course for the aggrieved party would be to institute a regular suit to set aside the impugned decree or order. In a case where fraud is committed upon the Court as well as upon the aggrieved party, the Court has inherent jurisdiction to interfere in exercise of its power under section 151 C.P.C. to remedy the wrong inspite of availability of other remedies in the Code of Civil Procedure. Abdus Sattar Khondker Vs. Premlata 16 BLD (HCD) 596. Ref: 3 1DLR(AD)5 1; 29DLR(SC) 185; 43 C.W.N.969; 26 DLR 124;10 DLR79;19 C.W.N. 419; 24DLR 116; 24 DLR 133; 35DLR (AD)42; 14 DLR 256; 45 C.W.N. 392; A.I.R. 1934 (All)287; A.I.R. 1937(Sind) 101; PLD(High Court Division)109;40 DLR (HCD) 239;13 BLD(HCD) 1—Cited. Section—151 Order 39 Rules 1 and 2 Willful violation of a Courts order is a matter that concerns public policy relating to the administration of justice. If a party to a proceeding brings about any change in the state of things existing at the date of the institution of the suit or just prior to that date, in order to forestall a possible order of the court, the Court may, in an appropriate case, in the exercise of its inherent power require the offending party by issuing a temporary injunction in mandatory form to restore the status quo ante. This power may be exercised irrespective of the merits of the main case on the view that no one should be allowed to interfere with the course of justice by presenting the Court with a fait accompli. Babul Kanti Das and others Vs. Abul Hashem and others, 14 BLD (AD) 242. Ref: 35 DLR (AD) 42 (1891) 2 Ch, 27; (1898) 2 Ch, 774—Cited. Section —151 Court—Fees Act 1870, Section —13 The inherent power of the Court cannot be exercised for refund of the Court Fee if the cases do cover under section 13 of the Court Fees Act. The delay so caused having not been condoned, the appeal filed remained incompetent, (being time-barred), the Court Fees so paid on the memorandum of appeal cannot be refunded. Mr. Abul Hossain Vs National Bank Limited and others, 17 BLD (HCD) 420. Ref: AIR 1957 (All) 734; PU 1980 (Kar) 293—Relied upon. Section 151 It is well-settled this section merely fur- nishes legislative recognition of an age old and well established principle that every court has inherent power to act ex debito justiae to do that real and sub- stantial justice for the administration of which alone it exists or to prevent abuse of the process of the Court. Bangladesh vs. Messers Fabrica Nacional De Monedy Timbre (A.T.M. Afzal CJ) (Civil) 3ADC 545 Section 151, Order 26, 39 Rule 7,9 The learned counsel for the petitioners submits that the ascertainment of pos- session is a judicial act which has to be ascertained by the court upon evidence and an Advocate Commissioner is not competent to ascertain possession and the High Court Division suomoto and without assigning any reason made the rule absolute thereby allowed admission of additional evidence in a modified form though the appellate court, after assigning reason, rejected the applica- tion for local inspection being addition- al evidence in modified from and thus the High Court Division committed an error occasioning failure of justice in making the Rule absolute. A. K. M. Fazlul Hoque and others vs. Bazlur Rahman @ Md. Bazlur Rahman and others (Md. Tafazzul Islam J) (Civil) 3ADC 968 Defendant gave undertaking in Title Suit No. 121 of 1986 that he would not use the sale certificate in any proceeding of available in future as the order of the trial Court clearly shows that defendant No. 1 was debarred from using the sale certificate in Title Suit No. 121 of 1986 only. The High Court Division on con- sideration of the oral evidence as well as the documentary evidence held that the defendant is in possession of the land in suit. The High Court Division also on consideration of the documentary evi- dence held that the land in suit i.e. the land of kabala dated July 11, 1935 was auction sold and the same was pur- chased by defendant's mother in his name and that on the basis of the auction purchase defendant got his name mutat- ed in the khatian and paying the rent regularly. The High Court Division has observed since prior to the auction sale the defendant was in possession so even if no formal delivery of possession after auction purchase was taken but for that title accrued by the defendant through the auction purchase will not be affect- ed. Harich Ahmed being dead his heirs- 1 (Ka) Abdul Khaleque and others vs. Wali Ullah and others (Md. Ruhul Amin J) (Civil) 3ADC 970 Section 151, 148 Prayed for permanent injunction restraining the defendants from leasing out the suit land to anybody and also from disturbing plaintiffs' possession in the suit land...... (2) Since admittedly the suit land is khas land of the government and the same was leased is khas land of the govern- ment and the same was leased out to the plaintiffs on yearly basis, that suit itself for a decree for permanent injunction against the Government was not main- tainable. Government of Bangladesh represented by the Deputy Commissioner, Patuakhali vs. Md. Nurul Haque & others (M.M. Ruhul Amin J) (Civil) 3ADC 972 Section 144, 151 Order 21, 39, 9 Rule 1,2,35,13 It appears to us that inspite of the order of stay passed by the High Court Division, the executing court delivered possession in favour of the respondent Nos. 2-4 and as such the High Court Division passed the impugned judgment and order directing to restore possession to respondent No. 1. We do not find that the petitioner who is neither a plaintiff nor defendant thereby being not a decree holder not judgment debtor, could not legally resist the action and as such we find substance in the submissions of the learned counsel of the respondents. Md. Belayet Hossain -vs- Abul Fayez Md. Abdullah and others (Amirul Kabir Chowdhury J)(Civil) 3ADC 904 Section—151 Mandatory injunction Mandatory injunction is highly discretionary relief and is granted in favour of the aggrieved party only when it is proved that the offending party has committed an illegal act in relation to the subject-matter of the suit in violation of a legal right in a property in the suit. Ramizuddin alias Kalu Mia Mistri and others Vs Kazi Tajul Islam and others, 17 BLD (HCD) 424. Section 151 Whether after finally disposing a matter a Court or Tribunal can re-open the matter when an allegation of fraud practiced on the Court or Tribunal is brought to its notice. Govt. of Bangladesh vs M.A Khair Bhuiyan (Mohammad Fazlul Karim J)(Civil) 3ADC 163 Section 151, Order XXXIX, Rule 4 Allowing the prayer for temporary: injunction upon rejecting the application filed under Order XXXIX, Rule 4 read with section 151 of the Code of Civil Procedure. The civil (title) suit was filed under section 73 of the Trade Marks Act, 1940 for restraining the defendant petitioners and others from selling and supplying the water pump 'PEDROL- LA' imported from China. Ali and Brothers and Marquis Pump Marketing vs. Pedrollo NK Ltd.(Md. Ruhul Amin J) (Civil) 4 ADC 934 Section 151 Application under Article 58(a) of the Representation of People's Order, 1972 read with Section 151 of the Code of Civil Procedure filed by the petitioner for dismissal of the said Election Petition. Md. Abul Kashem vs. Mahmudul Hasan (Md. Abdul Matin J) (Civil) 7 ADC 404 Section 151 On 23.4.2005 in Title Appeal No. 180 of 2002 the plaintiff-appellants filed an application under Order XXIII Rule 1(2) along with Section 151 of the Code of Civil Procedure for withdrawing the appeal and instituting a fresh suit; that after hearing both the parties and perusing the application the learned Additional District Judge, 1st Court, Kushtia rejected the same by his order dated 26.4.2005 vide Order No.41 upon find- ing that the application does not dis- close what the formal defects were. Md. Mokbul Hossain vs. Md. Motier Rah- man (Muhammad Imman Ali J) (Civil) 9 ADC 413 Section 151 From the facts stated hereinbefore, it is clear that the present-petitioner who was the original judgment-debtor in the execution case in question sold the mortgaged property to respondent No.2 during the pendency of the execution case. Md. Hossain Ahmed vs. Bangladesh House Building (Md. Abdul Wahhab Miah J) (Civil) 8 ADC 721 Section 151 Both the Courts below on consideration of the evidence on record oral and doc- umentary having concurrently found that the plaintiffs failed to establish their right, title, interest in the C.S. plot No. 1548, the learned Judge of the High Court Division committed error of law in sending the suit back on remand to the trial Court with a direction to dis- pose of the same after "investigation of the suit land by appointing another Ad- vocate Commissioner" to ascertain the suit land invoking the inherent power under section 151 of the Code of Civil Procedure. Md. Anwar Hossain vs. Mosammat Hoshneara Begum (Md. Abdul Wahhab Miah J) (Civil) 8 ADC 744 Section—151 If the Court found that through inadvertence it had earlier disallowed the review application for restoration of a miscellaneous case, although such application was maintainable in law. The Court committed no illegality in subsequently allowing an application under section 151 of the Code restoring the case in exercise of its inherent power in the interest of justice. Ahad Au Mridha Vs. Anwar Hossain, 17 BLD (HCD) 594. Section 151- The plaintiff having claimed that he had a dwelling house in the suit land and has been possessing the same "after purchase of the suit land", until the matter is investigated and adjudicated properly against the person in possession of the property and the subsequent suit is disposed of... the Court can pass an order under its inherent jurisdiction, for staying the execution case started in a suit wherein the plaintiff was not a party. .....Zainab Banu =VS= Md. Nisar Uddin, [3 LM (AD) 503] Section 151- Local Investigation- We have arrived at the conclusion that there are authorities to support the view that in a case of delivery of property beyond the decree, an application for local investigation can be allowed, treating the same as an application under section 151 of the Code of Civil Procedure. ...... Shahabuddin Ahmed =VS= Md. Hossain Ali, [4 LM (AD) 331] Section 151- Discretionary power- Only provision in which the court cannot exercise the discretionary power in awarding the sentence is section 303, which provides that "whoever, being under sentence of imprisonment for life commits murder shall be punished with death". I find no rational justification for making a distinction in the matter of punishment between two classes of offenders, one is, under the sentence of life imprisonment, who commits murder whilst another, not under the sentence of life imprisonment. ....BLAST & others -VS- Bangladesh & others, [1 LM (AD) 287] Section—141 If a pre-emptee is not a co-share at the time of transfer or at the time of institution of pre-emption proceeding and if he becomes a co sharer during pendency of pre-emption proceeding whether he becomes a transferee to a co-sharer — The procedure provided in the C.P.C. in regard to suits, whether shall be followed in all proceedings in any Court of civil jurisdiction. If a pre-emptee is not a co-sharer at the time of transfer or at the time of the institution of pre-emption proceeding and if he becomes a co-sharer in the case holding during the pendency of the pre-emption, he does not become a transferee to a co-sharer either at the time of transfer or at the time of institution of the pre-emption proceeding. The procedure provided in the C.P.C. in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. Abdul Baten Vs. Abdul Latif Sheikh and others 13 BLD (AD) 56. Ref: ILR 44Cal .47; 1 9DLR(SC)36-Cited Section—144 Where dispossession of suit properties was not on the basis of any decree which has been varied or altered but on the basis of a notice subsequently found to be illegal, section 144 of the Code is not attracted. In such a situation, inherent right of the court in section 151 of the Code may be applied to make such order as would enable it to do effective and complete justice between the parties. In the circumstances of the case, the High Court Division committed no illegality in directing restitution of the suit property. Military Estate Officer, Dhaka Cantonment, Dhaka and another v. Sk. Mohammad Ali and others, 22 BLD (AD) 113. Section 144, order 9 Rule 13 An application for staying the operation of the said compromise decree was also filed under the said suit. .....(2) Md. Raja Miah vs. Md. Ijab Uddin (Md. Joynul Abedin J) (Civil) 5ADC 878 Section—144 It provides that once a decree is varied or reversed, the court of the first instance shall on the application of any party entitled to any benefit by way of restitution or is otherwise entitled to possession, restore the party to such position. This being the mandate of law, the High Court Division was wrong in refusing restitution of possession to the appellant by ordering analogous trial of the Miscellaneous Case under section 144 C.P.C. with title the original suit. The grant of restitution is not discretionary with the court but it is obligatory for ensuring that the party who got the benefit of a decree which has subsequently been varied of reversed is made to restore it to the other party entitled to the benefit the varied or reversed decree. Mrs. Shahana Hossain Vs. A.K.M. Asaduzzaman, 15 BLD (AD) 167. Section 144, Rule 1(2), 10 (Order VII) The cause of action for the suit ordinarily thus, means the cause which leads the plaintiff's to bring a legal action. The incidence of cause of action must be antecedent to the bringing of the suit at a time when the right to sue arose for the first time. Surat Sarder vs Afzul Hossain (Mohammad Abdur Rouf JKCivil) 2ADC 590 Section 144, 151 It is well established that terms of section 144 of the Code is mandatory but this is not exhaustive. It only provides procedure for restitution in the case of a reversal of a decree. Military Estate offices Dhaka. Vs Sk. Mohammad Ali (Mahmudul Amin Choudhury J) (Civil) 1 ADC 46 Section 144- Provisions of section 144 of the Code which clearly entitles a party to pray for restoration of possession even if the possession is delivered pursuant a decree passed in a suit. .....Masum Billah(Md.) VS Md. Saidur Rahman, [3 LM (AD) 268] Sections 144/151- Review- The civil court can exercise its inherent power under section 151 of the CPC- For declaration of their right of permanent tenancy in the suit land with a further declaration that notice bearing No. ALC/681/76 dated 29.12.1976 issued by the petitioner No.1 namely Military Estate Officer, Dhaka Cantonment for removing the structures from the suit land is illegal, void and not binding upon them. After hearing the learned Subordinate Judge by judgment and decree dated 22.8.1989 dismissed the suit. Thereafter First Appeal Nos. 99 and 100 of 1989 were filed and a Division Bench of the High Court Division by judgment and decree dated 8.8.1993 allowed the appeal declaring that the notice dated 29.12.1976 is illegal and of no legal effect and that possession of the suit land from the plaintiff respondents cannot be recovered except in due process of law. But in the meantime, taking advantage of judgment and decree dated 22.8.1989 dismissing the suit, the contesting defendants dispossessed the plaintiffs from the suit land on 26.8.1989. After disposal of the appeal by the High Court Division decreeing the suit, the plaintiffs filed an application under sections 144/151 of the Code of Civil Procedure for restitution of the suit land. The High Court Division it appears though found that section 144 of the Code is applicable but even if it is found that this provision is not applicable as submitted by the learned Additional Attorney General but when the plaintiffs were dispossessed on the basis of a notice which was found to be illegal by the High Court Division the civil court can exercise its inherent power under section 151 of the Code in such a case and in the present case this discretionary exercise of power has not run counter to the interest of justice. In review petition there is no scope of re- hearing appeal which the petitioner is seeking. The review petition is dismissed. ......Military Estate Officer =VS= Sk Mohammad Ali, [4 LM (AD) 270] Section 145, Order XXII, Rule 10 Thus in the facts and circumstances of the case and in view of the finding of the lower appellate court that because of the formation of a trust committee, the appellant as the Secretary of the committee was entitled to be substituted under order 22 Rule 10 C.P.C. in the suit in question. Falguni Majumder vs Mokbul Hossain Baswas (Mohammad Abdur Rouf J(Civil) 2ADC 203 Section—148 Where any period is fixed or granted by the Court for doing any act prescribed or allowed by this Code, the Court may, in its discretion from time to time, enlarge such period even though the period originally fixed or granted may have expired. Mosammat Wajeda Khatun v. Mosammat Saonatun Bewa, 22 BLD (HCD) 560. Ref: Rafiqul Islam and another v. Abul Kalam and Others, 42 D.L.R. 19. Section—149 Power to make up deficiency of court-fees For setting aside a part of the decree the Court should always allow the plaintiffs an opportunity to pay the advalorem Court fee if they desired to have the benefit of that part of the decree also. In the instant case, even if the setting aside part was not there, the plaintiffs’ relief would be complete with the declaratory part only inasmuch as they were not parties to the suit in which the impugned decree was passed. Md. limed Ali and another Vs Mst. Hamida Khatoon and another, 18 BLD (AD) 213. Section—151 Powers under section 151 of the Code cannot be exercised when there is an alternative remedy available to the party seeking relief or when there is a specific provision of law under the Code is available for giving relief to the party aggrieved. Sobour Ali Mondal Vs Md. Bhulor Au and others, 20 BLD (HCD) 276. Ref: Azizur Rahman Vs. Janata Bank, 28 DLR (1976) 252; Punjab Ali Pramanik and ors Vs. Mond. Mokarram Hossain, 29 DLR (SC) 185; Rajendra Shairail Vs. Mahadev, (1975) 27 DLR 232; 38 DLR 231; 39 DLR68; 1 BLD 397—relied. Section 151 (1), Order 39, Rule 7 That the High Court Division without issuing any rule and without giving the defendants any opportunity of being heard has given the full relief to the plaintiff, which is not highly illegal but offended the age old principle of audi alteram partem. The High Court Division should not given the relief in this manner and fashion without giving the opposite parties any opportunity of being heard. Abul Kashem and others vs. Md. Rajab Ali (Mohammad Fazlul Karim J) (Civil) 4 ADC 519 Section 151 Application for stay of the execution proceeding under section 151 of the Code of Civil Procedure. Messers Shahajan Traders and another vs. Subordinate Judge and Artha Riun Adalat No.1(Mohammad Fazlul Karim J(Civil) 4 ADC 564 Section 151, Order 26, Rule 17 It appears from the record that on 5-10- 92 one witness was examined on the side of the plaintiff when the trial court submitted a number of documents on behalf of the plaintiff. On that date PW.I was cross-examined in part on behalf of the defendant and the cross- examination of this witness was completed on 8-10-92. On 8-10-92 the court. allowed. Feroz Alam and ors vs. Zobaida Nahar @ Zharna and ors. (Bimalendu Bikash Roy Choudhury J)(Civil) 4 ADC 566 Section 151 (1) In fact had no title whatsoever nor any possession in the suit land and as a result of wrong recording of the name of the defendants in khatian, having created cloud, the plaintiff felt constrained to file the suit. Md. Lehajuddin Dhali vs. Md. Dhalu Hawlader & others (Amirul Kabir Chowdhury J)(Civil) 4 ADC 601 Section 151, 151 (1) It is the persistent case of the plaintiff respondent that there was mistake in recording the date of hearing of the case inasmuch as the date "31.10.1993" was written in the diary of the Advocate's clerk instead of "30.10.1993" and the diary itself was produced before the Court on perusal of which the judgment. Md. Moksed Ali vs. Md. Moyen Uddin Mondal being dead his legal representative (Amirul Kabir Chowdhury J)(Civil) 4 ADC 615 Section 151 (1) The scope of Section 115(1) of the Code of Civil Procedure is now well settled. Considered pronouncements by the highest Court of the Country have made it abundantly clear that a Court of revision under Section 115(1) of the Code of Civil Procedure can interfere with the findings of fact of the final Court of fact only in exceptional circumstances when the findings are shockingly perverse or these are vitiated by non reading and misreading of the material evidence or misconception of any important document affecting the merit' of the case. The learned Advocate of the petitioner has not been able to point out any such legal infirmity in the impugned judgment which calls for any interference by this Court. Simply because the impugned judgment is not a speaking order of an elaborate one, could not by itself be a valid ground for interference by this revisional Court unless it can be shown that the Court below has committed an error of law in the decision occasioning failure of justice. Rahmat Ali being dead his following substituted heirs vs. Md. Abdul Gani (Mohammad Fazlul Karim J) Civil 5ADC 131 Section 151 Order 39, Rule 1 Prayer for temporary injunction by filing a written objection denying plaintiffs possession in the suit land. Government of the People's vs. Md. Abdus Salam (Md. Tafazzul Islam J(Civil) 5ADC 424 Section 151 (1) For declaration that the deed of sale dated 14.07.1937 by abdul Karim Hajra predecessor-in-interest of the plaintiffs and proforma-defendants purpoted to have been executed in favour of the defendants No.1 Abdul Khaleque and Abdul Haque, predecessor-in-interest of the defendants No.2 to 12 has not been acted upon, ineffected and that the vendees are the banamders for the ven- dor Abdul Karim Hajra and that no right,title and interest accrued to the vendees on the strength of the aforesaid deed of sale. Md. Ekabbar Hajra vs. Salamat Hajra (Amirul Kabir Chowdhury J) (Civil) 5ADC 430 Section 151 This Court while dismissing the appeals held that the Arbitrator is a creature of the statute (Ordinance II of 1982) and under section 36 of the Ordinance he has been vested with some limited powers of Civil Court. Therefore, the Aribitator has no power of review. It was further held that in view of provision for appeal under section 34 of the Ordinance and the appellants having preferred review application without filing appeal before the Arbitrator, the same was not maintainable ....(2) Atik Ullah vs. Government of the People's Republic of Bangladesh (M.M. Ruhul Amin J) (Civil) 5ADC 138 Section 151, Order 9, Rule 13 Challenging the order of RAJUK dated 24.08.1998 canceling the lease of Plot Nos.20 and 20-A in Gulshan North Commercial Area, Dhaka earlier granted in favour of their predecessor late Md. Chowdhury. After the death of their predecessor, the plaintiffs-respondents as his legal heirs instituted the above suit....(2) The Chairman, RAJUK vs. Momtaz Hasan Chowdhury (M.M.Ruhul Amin J) (Civil) 5ADC 335 For declaration of title, confirmation of possession and also for permanent injunction in respect of the suit land on the averments that the suit land originally belonged to Monsur Ali, the father of! plaintiffs No.1 and the grandfathers of the plaintiffs Nos. 2 to 5,who was raiyat under khiroda chandra roy:the Superior landlord......(2) Mohammad Rashid vs. The Head Master and Secretary Moheshkhali High school (Md. Tafazzul Islam J) (Civil) 5 ADC 337 Section 151, 151 (1) That the declaration of the property as enemy property is illegal, void and not binding upon them and that the suit property belonged to Balai Sardar and others....(2) Murari Mohan Sarder vs. The Government of the People's (Amirul Kabir Chowdhury J) (Civil) 5ADC 522 Section—151 A court has inherent power to recall orders obtained by practicing fraud on it, at the instance of a party to the proceedings and there is no execution of the court being functus officio. A party cannot be allowed to take advantage of its wrong and fraud vitiates everything. The court always preserves its inherent powers to set at naught any illegality committed by it. M. Majid Vs Iqbal Bahar Chowdhury and others, 20 BLD (HCD) 285. Ref: AIR 1 985(SC) 111; 1 998BLD (AD) 121; 30 DLR (SC) 221; 43 DLR 207; 44 DLR 582; 31 DLR 108; 1998 BLD 318; AIR 1977 (SC) 1969; AIR 1991 (AP) 191; 1968 SCD 274 —Cited. Section 151 (1) The suit for declaration of title to the suit land by purchase or adverse possession and further that the order dated 6.2.1989 of the Additional Deputy Commissioner, Comilla declaring the suit land as enemy property is illegal and inoperative. Sree Santipada Datta being dead his heirs vs. Satish Chandra Das and others (Mohammad Fazlul Karim J) (Civil) 4 ADC 844 Section 151 Order 41, Rule 21 As it appears the High Court Division found that the appellate Court allowed the appeal holding that (a) even if for arguments sake it is conceded that the defendants could not give satisfactory explanation to the points raised by the plaintiffs but that would not improve the case of the plaintiffs because it is the cardinal principle of law that the plain- tiff is to prove his own case and he must not rely on the weakness or defects of the defendants case. Abdus Samad Talukder and another vs. Sarkar Mahmud and others (Md. Tafazzul Islam J(Civil) 4 ADC 669 Seeking declaration of title and khas. possession upon evicting the defendants from the land in suit. Md. Siraj Mondal @ Md. Sirajuddin Mondal vs. Mosammat Miraton Nessa (Md. Ruhul Amin J (Civil) 4ADC 672 Declaration of their title in the suit land and for a declaration that the order. Mst. Mariam Bibi vs. Shiraj Madbar and others (Amirul Kabir Chowdhury J) (Civil) 4 ADC 774 Section—151 and Or. I Rule 13 As a general rule the powers of Court under section 151 are not to be invoked where specific provision in the Code covers a particular case or there is alternative remedy. But the Civil Court has ample reserve of its inherent powers to do what meet the ends of justice when fraud is committed on the Court itself. A Court commits an error of law in refusing to entertain an application for setting aside ex-parte decree. The question for decision before the Court was, “is the Civil Court so powerless that in exercise of application for setting aside an ex-parte decree which is alleged to obtained have been on practicing fraud upon the Court itself.” Parties before the Appellate Division lodged Civil petitions for leave to appeal Nos. 327 and 331 of 1991 which have been dismissed onl2.3.92 and the case has already been reported in (1992) I2BLD (AD) 245. It is fairly established that in cases of fraud upon the Court, the Court may exercise its inherent powers to set things right even though there are alternative remedies open. Mrs. Shahrbanoo and Another Vs. Mrs. Lailun Nahar Ershad & others 13 BLD (HCD) 1. Ref: Abdul Aziz Vs. Abani Mohan, 30 DLR(SC) 211; Mofazzal Molla and another Vs. Sarat Chandra and others 31 DLR (HCD)109 Mozaffar Ahmed and others Vs.Moulavi Saleh Ahmed and others 40 DLR (HCD)239; Baidyanath Dubey Vs. Dernanda Singh 1968 SCD275—Cited. Section—151 The Court of appeal being the last Court of fact, it is difficult to interfere with the finding of fact arrived by the last Court of fact. Chairman, Madaripur Pourasahava Vs. Abdul Mannan Khan being dead his heirs Majibar Rahiiwn @ Babul and others, 13 BLD (HCD) 5. Section—151, Order 47 Rule I The provisions of Order 47 Rule 1 read with Section 151 of the Code of Civil Procedure are not available to an aggrieved party in a case under the Artha Rin Adalat Am, 1990. Messers MA C-Proprietor, Mahtabuddin Chowdhury and another Vs. Agrani Bank, 14 BLD (HCD) 195. Section—151 High Court Rules, Chapter X The ground as to the Court’s failure to record its satisfaction about the reason for absence of the Advocate when the case was called for hearing is too technical to deny the absentee opposite parties a rehearing of the civil revision. Hasan Azam and others Vs Most Rabeya Khatun and others, 21 BLD (AD) 136. Section—151 Inherent Powers of the Court Ordinarily the Court does not exercise its inherent power under section 151 of the Code whenever a remedy is available to the aggrieved party under any provision of C.P.C. But when the disputed order is obtained by practicing fraud upon the Court or it has been occasioned due to the fault of the Court itself, the Court is not only competent to exercise its inherent power to undo the wrong done to a party but also it becomes imperative in the interest of justice to do so. Fraud always vitiates even solemn transactions. Fraudulent act by its own nature is a nullity in the eye of law and it is never protected by law. Procedural laws are devised to advance the cause of justice and not to obstruct it in the name of any technicality. An application under Order 9 Rule 13 of the Code, in the facts of the cases, does not stand in the way of giving the desired relief to the aggrieved party under section 151 of the Code. Md Refat Ali & ors. Vs Govt. of Bangladesh & ors., 21 BLD (HCD) 133. Section—151 and Order XXXIX Rule 1 and 2 In a fit case the court can issue mandatory injunction in ad-intrim form but such power is to be exercised in rare cases where there is an imminent grave danger to life or property or for the purpose of restoring or maintaining status quo. When the plaintiffs claim can be compensated by money on his success, no order of injunction should be made. In a suit concerning service matters when permanent injunction cannot be granted, temporary injunction should not ordinarily be granted, not to speak of a mandatory injunction. Dr. Halida Hanum Akhter Vs. Dr. Firdosi Khanam, 14 BLD (AD) 195. Ref: PLD 1954, (Lahore 0 151; 8 C.W.N. 996; PLD 1969 (Dhaka) 832;—Cited. Section—151 Considering the balance of convenience and inconvenience it appears that if any order of injunction at this stage is granted in favour of the petitioners this will surely hinder the development works Of the Government and the development scheme which is being financed by the donor agencies will go in vain. After the publication of the E.B. State Acquisition and Tenancy Act, 1950 all the beels/ponds (Jalmahals) of the ex-zaminders vested in the Government free from all incumbrances and permanent lease of these beel lands is prohibited. All these points are required to be decided in the main suit after taking proper evidence. Section 151 of the Code clearly authorises the Court to act whenever the Court finds it necessary for preventing an abuse of the process of the Court or otherwise to secure the ends of justice for meeting an emergency. In the instant case since a development scheme was being frustrated and financial help of the donor countries was going in vain, the learned Additional District Judge did not commit any illegality in exercising power under section 151 of the Code to meet situations in which some injustice is felt to have been made to a party in a proceeding. Jabed Ali Akand and ors. Vs D C Bogra and ors., 21 BLD (HCD) 188. Code of Civil Procedure [V of 1908] Section 151 Uundoubtedly lengthens the hands of the court to pass any order to do justice, when there is no remedy open to the really aggrieved litigant, but if an alternative remedy is available or provided by the Code itself, the application under section 151 of the Code of Civil Procedure does not lie and inherent jurisdiction cannot be invoked by the judge of the court, when there is a failure to avail of the statutory remedy. The High Court Division held that the defendant-petitioners were in the know about the final decree dated 05.04.2010, but knowing about all the proceedings of the case, they have filed the application under Section 151 of the Code of Civil Procedure, 1908 for vacating the order dated 05.04.2010 of the learned trial court after a long laps of time on 16.10.2012. It is also apparent from the papers that the concurrent observation and findings of the courts below were lawful and proper, inasmuch as; there is no scope to entertain the application for invoking the inherent power of the court for vacating the final decree upon the said application, inasmuch as, obviously the remedy lies in the appeal, not in that application. Md. Ibrahim Sheikh and others -Vs.- Md. Mahiuddin and others (Civil) 20 ALR (HCD) 30-32 Code of Civil Procedure [V of 1908] Section 151 read with Rule 2(2)(a) of Order 37 Limitation Act [V of 1908] Section 4 Negotiable Instruments Act [XXVI of 1881] Section 117 The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application. It is a cardinal principle of interpretation of statues that when two provisions of a statute appear conflicting with each other they should be so interpreted so that they harmonise. Section 4 of the limitation Act provides, where the period of limitation prescribed for any suit, appeal or application expires on a day when the court is closed the suit appeal o application may be instituted preferred or made on the day the court reopens. So the application made for leave under order 37 Rule (2) and (3) of the Code on 30.8.98 cannot be held to be out of time of the period of limitation of 10 days. The learned District Judge, therefore has not committed any error either of law or procedure in entertaining such application for leave. The learned District Judge on consideration of the application and the record has come to a finding that there was a triable issue raised and the defendant should be allowed to defend the suit. Upon such finding, learned District Judge granted leave to the defendant Bank to appear and defend the suit. The Appellate Division observed that it is unfortunate that the High Court Division made the Rule absolute just within 28 days without at all considering that in the present suits the respondent No. I prayed for decree for Tk. 99,05,35,187.00 with further interest and compensation on the decreetal amount and the above amount of Tk. 99,05,35,187.00 was claimed on the basis of the Bills drawn during the years 1985-87 on BADC for total Tk. 1,02,70,000.00 out of which Tk 85,28,372.32 was paid by BADC deducting only Tk. 17,41,627.69 as penalty etc over which the respondent No. 1 initiated proceeding which is pending for hearing and the High Court Division, also did not consider that out of Tk. 99,05,35,187.00 as above, an amount of Tk. 79,24,92,446.00 was claimed as compensation under section 117 of the Act though in terms of Rule 2(2)(a) of Order 37 CPC in such summery proceedings, the plaintiff can only interest under section 79 or 80 of the Act and that in view of making the rule absolute the court will have no other option but to pass exparte decree for Tk. 99,05,35,187.00 along with further interest and compensation under section 117 of the Act as claimed from the date of the decree and as it appears from the contents of order dated 19.7.98 of the District Court, no court fee has been paid on the claim of Tk 99,05,35,187.00 as yet. It also appears that the respondent No. I filed the above writ petition suppressing the fact that at their instance Rule has been issued in Civil Revision No. 10 of 1987 on the same issue by the High Court Division and the same was pending for hearing. As stated earlier, in the meanwhile above Rule was discharged. Further, it also appears that in the writ petition petitioner prayed for issuing Rule upon the Presiding Judge of the court instead of the person who was going to be affected and the High Court Division just on the basis of the prayer of the respondent No. 1, issued Rule only on the Presiding Judge, District Court Dhaka, who as per usual practice, did not appear and taking advantage of the same, the respondent No. 1 got the Rule absolute depriving the appellant to bring on record the relevant facts. In 44 DLR 490 relied on by the respondent No. 1 the High Court Division held that in such summery suits Article 159 of the Limitation Act was applicable and accordingly sent the case records back to the trial court after setting aside the order passed by the trial court granting leave. But as it appears in the suit in question the defendant appeared on 23.11.88 in response to the summons and merely filed an application praying for time to file written statement and did not at all file an application supported by an affidavit praying for leave and the order of the Court passed on that date allowing the defendant to file written statement on 07.12.88 which resulted in filing of an application by the plaintiff on 5.12.1998 under section 151 C.P.C. praying for vacating the order passed on 23.11.88 on the ground that in the absence of prior leave obtained by the defendant to appear and defend the suit, the order dated 23.11.88 was erroneous in law. However in the present cases on 26.08.99 the appellant entered appearance and prayed for time for filing written statement but on 30.8.98 the appellant also filed another application supported by an affidavit praying for leave to appeal and defend the suits. Moreover, in the present case, the learned District Judge without at all considering that 28.8.98 and 29.8.98 being holidays, the application dated 30.8.98 was within 10 days condoned the delay referring to the case of Srinivasan Vs. Bhakthavatsulu Naidu, reported in AIR 1953 Madras 909 and then granted leave holding that there was triable issue. But in the writ petition the High Court Division considering that 28.8.98 and 29.8.98 being holidays held that the application dated 30.8.98 was within time but made the Rule absolute holding that the above application did not disclose facts of triable issue. As it appears the respondent No. 1 did not file any leave petition challenging the above finding of the High Court Division that application dated 30.8.98 was within time but raised this issue of limitation in the concise statement and also made submission on this point of limitation without obtaining any leave. However we have already answered this question of limitation. Regarding the submission of Mr. M.S. Khan that the information sleep shows that the application filed by the appellant Bank on 30.8.98 were not under Rule 3 of Order 37 CPC, it appears that in the above applications the appellant specifically prayed for leave to appeal and defend the suits and so the said applications are certainly applications under Rule 3(1) for obtaining leave from the court to appear and defend the suit the defendant has to file an application under Rule 3(1) of Order 37 CPC. Accordingly the appeal is allowed and the Judgment and order dated 21.8.2000 passed in Writ Petition. No. 3869 of 2000 is set aside with costs. The observations made above are only for resolving the issue as to whether leave was granted in accordance with law and the same will have no bearing on the merits of the pending suits. Let a copy of this judgment be sent to the Ministry of Law as well to the Law Commission for consideration as to whether necessary amendment is required to be made in Rule 3(1) of Order 37 CPC as made in the said provision in different country/countries providing scope for condonation of delay. National Bank Ltd. Vs. M.S. Khan and Company Ltd. and ors (Civil) 22 ALR (AD) 173 Code of Civil Procedure [V of 1908] Section 151 A writ court has jurisdiction to declare the entire process of promotion to be unlawful, as direction for promotion and the question of malafide/illegality in promotion and applicability of the Code of Civil Procedure. A writ court has jurisdiction to declare the entire process of promotion to be unlawful, as direction for promotion and the question of malafide/illegality in promotion is an integral part of the writ petition which cannot be dissected. Moreover, in deciding writ petition though the Code of Civil Procedure is not wholly applicable, but it is applicable as far as practicable. Furthermore, a writ court, a court of equity, has jurisdiction to declare the process of promotion to be unlawful on the ground of malafide/illegality as apparent on the face of record, as discussed. So, by exercising inherent power under the provision of section 151 of the Code of Civil Procedure as well as a court of equity, it may pass an order as necessary by exercising its jurisdiction. Md. Tamij Uddin-Vs- Ministry of Power, Energy and Mineral Resources and 08 others (Spl.Original) 21 ALR (HCD) 284-297 Code of Civil Procedure [V of 1908] Section 151-Before the ex-parte hearing the suit was dismissed for default and subsequently restored on a petition under Section 151 of the Code of Civil Procedure. Since the defendant entered appearance and appointed an Advocate, the learned Assistant Judge should have informed the appointed lawyer of the defendant that the suit has been fixed for ex-parte hearing. The High Court Division is of the view that the petitioners instituted this miscellaneous case within the statutory period of time and they also succeeded to prove sufficient cause for their inability to appear before the Court when the suit has taken up for ex-party hearing but the learned Senior Assistant Judge erroneously dismissed the same which was most illegally affirmed by the learned Joint District Judge causing miscarriage of justice. As such the impugned judgment and order is not tenable in law. Most. Kajal Begum and others -Vs. Md. Hirak and others (Civil) 16 ALR (HCD)327-329 Code of Civil Procedure [V of 1908] Section 151 read with Civil Rules and Orders, Vol-1 Rule 774- A Miscellaneous Case before the Court of District Judge, Dhaka is not a remedy provided by law against the action of the Artha Rin Adalats in not registering the said suit as an Artha Rin Suit. Where an alternative remedy exists, a party can not have recourse to the inherent jurisdiction of the Court under section 151 of the Code of Civil Procedure. The High Court Division held that the opposite party may avail of ordinary civil jurisdiction by filling suit in civil Court. But the opposite party not being a financial institution under section 2(Ka)(18) of the said Act of 2003, suit by the opposite party in Artha Rin Adalat is not maintainable. A Miscellaneous Case before the Court of District Judge, Dhaka is not a remedy provided by law against the action of the Artha Rin Adalats in not registering the said suit as an Artha Rin Suit. Reference may be made to the case of Golden Rerolling Industries Limited Vs Subordinate Judge, Artha Rin Adalat No. 1, Dhaka and another reported in 60 DLR (AD) 38 wherein the Apex Court of the country held that where an alternative remedy exists, a party can not have recourse to the inherent jurisdiction of the Court under section 151 of the Code of Civil Procedure. Apart from this, Rule 774 of the Civil Rules and Orders, Vol-I contains a list of the proceedings which will be entertained as a Miscellaneous Case. The Court of District Judge, Dhaka committed error of law in entertaining the plaint filed by the opposite party as a Miscellaneous Case. Mr. Tipu Munshi -Vs- CFC Stanbic Bank Limited, a private limited company having its registered office at CFC Stanbic Bank Limited (Civil) 18 ALR (HCD) 39-46 Code of Civil Procedure [V of 1908] Sections 151 and 152-After passing of final decree it cannot be set aside on an application under sections 151 and 152 of the Code of Civil Procedure on the ground that final decree was not drawn up in conformity with the preliminary decree. The Appellate Division considered that these defendant Nos. 1(a)-1(d), admittedly, did not file any objection against this Advocate Commissioner's report. Long several moths after acceptance of this Advocate Commissioner's report and passing of the final decree they filed the application under sections 151 and 152 of the Code of Civil Procedure praying for correction/amendment of final decree. However, the Appellate Division finds no infirmity or impropriety in the final decree. Rather, the Appellate Division finds this final decree quite in conformity with the preliminary decree. The High Court Division committed wrong and illegality in setting aside the final decree entirely on an application under sections 151 and 152 of the Code of Civil Procedure. The findings and decision of the High Court Division are quite erroneous and as such these cannot sustain. Moazzem Hossain Chowdhury and another -Vs.- Najib Chowdhury and others (Civil) 15 ALR (AD)177-180 Code of Civil Procedure [V of 1908] Section 151 read with Order 7 Rule 11 read with Labour Act [XLII of 2006] Section 213 Section 213 of the Labour Act, 2006, is not to be used as an instrument for establishment of any right, but only for enforcement of existing rights, guaranteed or secured by law. The High Court Division opined that the respondent No. 2 is indeed an employee of an independent contractor named TEAM Services. The contractual relationship is between the petitioners and TEAM Services, the respondent No. 2 is not a privy to it. So, he has no cause of action against the petitioner. The High Court Division is also swayed to the equation that the alleged dispute not being an industrial one, section 213 of the Act is not attracted and hence the Labour Court concerned was coram non-judice. It follows that the Court below was bounden to accept the application for rejection of plaint. For the reasons assigned above, the Rule is made absolute. Sharmeen Annie Vs. First Labour Court, Dhaka and another (Spl. Original) 19 ALR (HCD) 50-52 Section 152-The Court may at any time correct any clerical or arithmetical mistake in the judgment, decree or orders or accidental errors arising therefrom either on its own motion or on the application of a party, but an amendment of a substantial nature, or amendment of the plaint is beyond the scope of this section. If the decree or order is sought to be varied for any reason other than clerical error or arithmetical mistake, it can be done only by way of review or by appeal. A Court apart from section 152 by virtue of its inherent power can alter or vary the order and the decree, but the Court must bring the amendment of the decree in conformity with and to harmonies the decree with the judgment. Nurul Islam vs Akkas Ali Sarder (Civil), 73 DLR (AD) 230 Section 152 As it appears the High Court Division rejected the revisional application summarily holding that the prayer as made in the application dated 2.11.2004 for setting aside the section 152 CPC, the Court cannot allow such relief and fur- ther the Court became functus officio after passing of the judgment and decree and the learned Joint District Judge having passed its judgment and decree dated 25.7.2004 on the basis of the sanction letter, Dr. S.M. Yunus Ali vs. Joint District Judge (Md. Tafazzul Islam J) (Civil) 6 ADC 144 Section—152 It contemplates amendment of decree in respect of any clerical or arithmetical mistake but does not contemplate amendment of a decree of any substantial nature. Abdul Motaleb and others Vs. Shahed Ali and others, 14 BLD (AD) 141. Section—152 and Order 47 The scope and purpose of Section 152 C.P.C. are very limited and the decision on a successful application under the Section cannot materially affect the decree except correcting some insignificant errors or accidental omissions having nothing to do with the merit of the decree itself. Since there is no limitation for filing an application for amendment of the decree, it may be filed even when an appeal is pending against the decree or when the appeal has been disposed of without noticing the clerical or accidental error. in the decree. The limitation for filing an appeal runs from the date of the original decree and not from the date on which the decree is subsequently amended under Section 152 of the Code. In exercise of the power of review the Court which has passed the decree may amend or modify it in any way and to any extent which it thinks proper in a given case. The starting point of limitation in such a case is the date of the new decree drawn up after the review, whether the original decree is modified or re-affirmed. Bangladesh Vs. Luxmi Bibi and others, 14 BLD (AD) 165. Section—152 There is no mention in the section of any time limit for correction of any mistake occurring in a judgement, decree or order. It is stated that errors arising from any accidental slip or omission may at any time be corrected. There being no question of limitation, an application for correction 35 years after the date of the decree was allowed. Chand Mia and others v. M. A. Rajput Ghosh Bahadur and ors, 22 BLD (HCD) 220. Ref: Ibrahim Sk. and others v. Janaf Sk. alias Janaf Au Sk. and others 29DLR81; Chaganty Katamraju v. Mada-varappu Panpurnanandam AIR 1949 Mad. 282; Sree Narayan Chanbdra Panda v. Md. Mahbub AIi and others, 9 BLT(AD) 197. Section—152 Amendment of judgments, decrees or orders If a matter decided by the Court is not included in the decree, such omission may at any time be corrected by the Court either on its own motion or on the application of any of the parties so as to carry out its real meaning. It would be shocking if the Court could not rectify its own mistake occasioned by clerical or arithmetical mistakes. Mrs Nazma Begum v. Mrs. Arzuda Khatun and others, 22 BLD (HCD) 504. Ref: 22 DLR 130; Mansha Ram Vs. Taj Bhan, ILR(1961) 1 Punj 728: AIR 1962 Punjab 110; Bangaru Reddy Vs. State, AIR 1959 AP 95; AIR 1935 (Cal) 619; AIR 1962(Punj)110; 39 CWN 1295; 1968 A.I.R. 66; PLD 1963 SC 265. Section—153 Court’s general power to amend The heirs of deceased respondent Abul Hashem were duly brought on record within time in the original proceeding. But due to inadvertence of the filing Advocate the appeal was filed showing Abul Hashem as the respondent, instead of making his heirs respondents in the appeal as a result of which the appeal abated. Since deceased Abul Hashem was made party in the appeal by mistake and since his legal representatives were already on record in the original proceeding the Court has ample power under Section 153 C.P.C to allow the amendment for adding the legal representatives of deceased Abul Hashem parties in the appeal. Hakim Ullah Vs. Mutaleb and others, 16 BLD (HCD) 189. Section—153 Order 6 Rule 17 Wrong description of section is not be a bar in allowing proper relief under proper provision of law. Ordinarily, a miscellaneous case is not a proceeding of original nature. But this is yet a proceeding and section 153 of the Code provides the general power to amend any defect or error in any proceeding for the purpose of determining the real question or issue raised by or depending on such proceeding. This general power of amendment under section 153 of the Code is applicable in the facts of the case. Abdur Rahman and others Vs Md Shamsul Huq and others, 21 BLD (HCD) 136. Section 153 For declaration of title, confirmation of possession and also for permanent in- junction. Abdul Gafur being dead his heirs vs. Mariom Bibi (Md. Abdul Matin J) (Civil) 6 ADC div:591 Code of Civil Procedure (V of 1908) Order XXXVII, rule (2)(7) Order XXXVII provides special proce- dures to be followed in the case of trial of summary suits, which are different from the general procedures laid down for ordinary suits. It is the plaintiff's choice whether to invoke the summary procedure. He may well choose to file his suit following the ordinary procedure of filing suits as provided by Order XXXVII, rule (2) of the Code. If he chooses to file the suit following the summary procedure under Order XXXVII of the Code, then the applicable procedure will be as set out in that Order. The procedure provided else where in the Code will apply if not specifically mentioned in this Order. But for the purpose of filing the suit, the place of filing will be governed by sections 15 to 24 of the Code......(24) [74 DLR (AD) 47] Code of Civil Procedure (V of 1908) Order XXXVII Code of Civil Procedure was enacted in 1908. At that time, the existing High Courts had jurisdiction to try suits as courts of first instance where the value of the suit was above the specified pecuniary limit. This is the case still in Pakistan where, unlike Bangladesh, the pecuniary jurisdiction of the District Court is limited. In the case of Bangladesh, the pecuniary jurisdiction of the Judge hearing original civil suits is unlimited, hence, there is no question of any civil suit being filed before the High Court Division, other than those required by statute to be filed there. The only other civil matter that would come to the High Court Division for trial would be under the provision of article 110 of the Constitution and that is where the procedures of Order XXXVII would be applicable. [74 DLR (AD) 47] Editors’ Note The petitioner-judgment debtor filed an application for dismissal of an execution case as being time barred. The learned Senior Assistant Judge rejected the application relying on a synopsis of a decision of one of the High Courts of Pakistan passed in 1998 published in a D.L.R. reference book which was affirmed by the High Court Division. The Appellate Division, however, found that the decision of the High Court of Pakistan is not applicable in our jurisdiction after 25 th March 1971 and detailed as to which precedents of Dhaka High Court, Federal Court of Pakistan, Supreme Court of Pakistan, Calcutta High Court, Federal Court of India and the Privy Council are binding on us and which are not. Finally, finding that the execution proceeding was initiated after 3 years beyond the permissible period under Article 182 of the Limitation Act, dismissed the execution case. Article 111 read with Article 149 of the Constitution of Bangladesh, 1972: In this connection, our considered view is that case laws of any jurisdiction is applicable in our jurisdiction subject to the provisions of Article 111 read with Article 149 of the Constitution of Bangladesh, 1972 only and anything beyond that periphery, specially from Subordinate Judiciary, could be termed as judicial adventurism. (Para 15) Which precedents are applicable in our jurisdiction: Regarding the binding effect of precedents of Supreme Court, Article 212 of the Government of India Act 1935; Article 163 of Constitution of Pakistan 1956 and Article 63 in Constitution of Pakistan of 1962 served the purposes of the present Article 111 of Bangladesh Constitution. By dint of the above mentioned constitutional provisions the case laws of the then higher courts namely Dhaka High Court, Federal Court of Pakistan (14 August 1947 of its independence to 1956); Supreme Court of Pakistan (1956 to 25 March 1971); Calcutta High Court, Federal Court of India (1935-1947 13th August) the Privy Council (till 13th August, 1947) is applicable with binding effect in our jurisdiction. (Paras 19 and 20) Case laws which are not applicable in our jurisdiction but may have some sort of persuasive efficacy: We can sum up in this way that the case laws declared by any superior court other than Bangladesh including Pakistan after 25th March, 1971 (that is after independence of Bangladesh) and that of India after 13th August, 1947 (that is after partition of Pakistan) are not applicable in our jurisdiction as binding precedents. They may have some sort of persuasive efficacy in our legal arena and can be used to assist or guide Bangladesh Supreme Court ... Hence, both the Division of the Supreme Court of Bangladesh can discuss and cite foreign case laws in reaching any decision on some points of law applicable in Bangladesh. However, no reliance ipso facto could be placed upon those precedents in any way as was relied upon by the learned Senior Assistant Judge, Sylhet. (Para 27) Judges of Sub-ordinate Judiciary are not empowered to interpret laws: The Judges of Sub-ordinate Judiciary, as a whole, are not empowered to interpret laws or making a precedent, rather, are bound to apply “existing laws” as it is, it is better for them only to cite or rely on the existing laws and case laws applicable in our jurisdiction and at the same time refrain from rely on foreign case law, not covered under the constitutional scheme framed through Article 111 and Article 149 of the Constitution of Bangladesh as discussed above. Moreover, as per the provisions of the Law Reports Act, 1875 and practices of the Court, using of reference books other than recognized law reports, is not appropriate. (Para 28) [17 SCOB [2023] AD 34] Code of Civil Procedure [V of 1908] Section 154(4) -Order 6 rule 17 read with Order 1 rule 10 It is well settled that the amendment of the pleadings may be allowed at any stage of the proceedings for the purpose of determining the real questions in controversy between the parties if it does not change the nature and character of the suit, or if the prayer for amendment does not become barred by elapse of time, or if it does not eliminate the right of the other party accrued by the admission of any party. The High Court Division held that in the present case the plaintiffs instituted a suit for partition. Thereafter, they filed an application for amendment of the plaint for further declaration that 0134 Ajutangsha land has been recorded in the name of the government is illegal as R.S. Khatian and City Jarip Khatian were recorder in the name of the government in respect of .0134 Ajutangsha land out of the suit land. These are the material facts which should be incorporated in the pleadings to determine the real questions in controversy between the parties. Amin Ahmed Vs. Umme Kulsum and others (Civil) 18 ALR (HCD) 113-115 Application for amendment of execution petition at execution stage claiming interest is possible. BHBFC Vs. Nuruzzaman.3 CLR (AD) 161 These sections enable the court to make an order for discovery which is necessary or reasonable. British vs Adam. 6 DLR 544. There is no bar in issuing summons upon cited witnesses for the second time, if it is necessary in the interest of justice. If the application for summons is not a bonafide one, the court may refuse the prayer. Dildar vs Sharif.43 DLR 196. Where it is obvious that the decision would depend largely upon the documentary evidence, the judge should himself make the necessary order under section 30 in the absence of any application by either of the parties. Govinda vs Magniram.AIR 1940 Cal 331 The antethesis that section 32 draws between section 27 and section 30 is that an omission in response to a summon under section 27 carries no penalty in the strict sense while a summons under section 30 may entail punishment. Sangram vs Election & C.AIR 1955 SC 955. Order 7 Rule 11 There were no Rules of Government covering the present case. Apart from the absence of any necessity to extend the time beyond the period of limitation, there has been no application before the Court explaining the reason for its inability to do so. So far as the need for giving reasonable opportunity of arresting the defendants' vessel within the jurisdiction of the Court was concerned, no such question arose in the present case which necessitates the extension of time. BLR 1983 (AD) 89; BLD 4 (AD) 222 Summons: Service of Summons- The High Court Division was not also factually correct in finding that summons of the suit was not served upon defendant No.3, as report of the process server clearly showed that summons of the suit was served upon defendant No.3 by hanging and he gave report to that effect. Merely because the fact of service of summons upon defendant No.3 was not recorded in the order sheet, it may be through inadvertence which did not make the report of the process server as regards service of summons upon defendant No.3 ineffective or nonest...... Rasheda Begum & others =VS= Abul Hashem & others. [1 LM (AD) 243]