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.
Code of Civil Procedure, 1908
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 Kecler 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
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
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—1 15(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 miscellaneous 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 High Court Division does not find merit in the Rule. In the result, 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- sequential 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—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.
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]
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