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Code of Civil Procedure, 1908

 

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.


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.

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

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.


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.

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.

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


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.


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.


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



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.

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—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(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


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 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


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(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(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.

 

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.

 

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 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

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 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

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.


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]