Act/Law wise: Judgment of Supreme Court of Bangladesh

ALL A B C D E F G H I J K L M N O P Q R S T U V W X Y Z



Specific Relief Act, 1877
Section/Order/Article/Rule/Regulation Head Note
Section 3

Unless the plaintiff could prove his possession in the schedule-1(ka) land he could not avail of the benefit of to section 3 of the Specific Relief Act.
The Appellate Division held that the plaintiff did not have any possession in schedule-1(ka) land to the plaint. Unless the plaintiff could prove his possession in the schedule-1(ka) land he could not avail of the benefit of the illustration-h to section 3 of the Specific Relief Act. The findings arrived at and the decision made by the High Court Division having been made on proper appreciation of law and fact do not call for interference. Accordingly, this civil petition for leave to appeal is dismissed.
Bibi Joynab Begum Chowdhury and others.-Vs.- Osi Mia Osi Mia Sawdagar being dead his heirs (Civil) 12 ALR (AD) 12-15 ....View Full Judgment

Sections 5 & 56

In a suit for permanent injunction simpliciter an issue whether the registered deed is forged or not cannot be decided. Sushil Kumar Paik and another vs Harendra Nath Samadder and another 55 DLR (AD) 9. ....View Full Judgment

Sections 5 and 56

Suit for permanent injunction - Held The High Court Division has rightly held that in a suit for permanent injunction simplicitor an issue whether the registered deed is forged or not cannot be decided. Such a question is to be decided in a separate suit. Sushil Kumer Paik & Anr. Vs. Harendra Nath Samadder &anr. 10 BLT (AD)-103 ....View Full Judgment

Section 9

If the judgment—debtor against whom a decree has been passed under section 9 can establish title in a suit subsequently filed by him, he can get the relief. No injunction can be granted on the plea of title. Mosammat Monowara Begum vs Syed Ashrafuddin 40 DLR (AD) 251. ....View Full Judgment

Section 9

Whether the decree obtained by the repondent Nos. 1 and 2 under section 9 of the Specific Relief Act is executable in view of the appellant's application for temporary injunction against the execution of such decree.
An aggrieved judgment—debtor under section 9 of the Specific Relief Act can institute a suit to establish his title and on obtaining a decree can recover possession of the property in question. Mosammat Monowara vs Syed Ashrafuddin 40 DLR (AD) 251. ....View Full Judgment

Section 9

In a suit for recovery of possession under section 9 of the Act, notwithstanding any other title that may be set up in such a suit, the person dispossessed without the consent or otherwise than in due course of law, can claim for recovery of the possession. Abdur Rauf (Md) vs Abdul Hamid and othes 49 DLR (AD) 133. ....View Full Judgment

Section 9

Specific Performance of Contract — Contract having been mutually cancelled by issuing a cheque by the petitioner refunding the earnest money the non-enactment of the cheque might entail other consequences, but that cannot revive the terminated contract as contended by the learned counsel of the petitioners.
Held : Although respondent No. 1 accepted the cheque from the petitioner in good faith he did not hand over the agreement to the petitioner and as the cheque was dishonoured by the Bank, the agreement remained in force and as such the suit for specific performance of contract was very much maintainable. Therefore it cannot be said that the contract was mutually cancelled and the suit for specific performance of contract was not maintainable. [Para-5]
Major (Retd) Md. Afsar Uddin Vs Kamal Rahmari & Ors. 3BLT (AD)- 190 ....View Full Judgment

Section 9

Temporary injunction—Temporary injunction to restrain the decree holder from proceeding with the execution tse—Whether judgment debtor against whom a decree for recovery of possession was passed is entitled w restrain the decree-holder — If an injunction is granted on the prayer of the judgment debtor the object and purpose of the suit under section 9 of the Specific Relief Act will be frustrated — If the judgment debtor against whom a decree has been passed under section 9 can establish his title in a suit subsequently filed by him he can get relief on the basis of title so found in such suit — The defendant must first surrender possession to the decree holder in execution of a decree obtained by him in such a suit — No injunction can be granted on the plea of title to restrain the execution proceeding — Code of Civil Procedure, 1908 (V of 1908), Order XXXIX Rule Mosammat Monowara Begum Vs. Syed Asrafuddin and others. 6 BLD (AD) 102 ....View Full Judgment

Section 9

Trespasser — Ejectment of — Whether a trespasser in possession for a long time without acquiring title can eject the subse1uent trespasser dispossessing him -p--- It is well—settled that in the case of successive independent trespassers, the first trespasser who has been continuously in possession has a right to maintain his possession against all the world except the rightful owner: he can sue for ejectment and recovery of possession from any person who subsequently dispossessed him unless the latter is the real owner or claims under him or justifies his authority — A long line of decisions show that prior possessor can eject the subsequent trespassers — As such title must be held in the first trespassers unless, of course, the subsequent trespasser acquired better title — It is not a valid defence that real title lies in the 3rd party. Abdul Hamid and others Vs. Afazuddin Ahrned and others 7BLD (AD) 177 ....View Full Judgment

Section 9

In a suit for recovery of possession under section 9 of the Specific Relief Act, notwithstanding any question of title that may be setup in such a suit, the person disposed without his consent or otherwise than in due course of law can claim for recovery of possession. A tenant having lawfully entered into possession of an immovable property cannot transfer possession to a third party without the consent of the landlord. In such a case, the plaintiff is entitled to recovery possession in the suit property. Mohammad Abdur Rouf Vs. Abdul Hamid, 16 BLD (AD) 277. ....View Full Judgment

Section 9

A plaintiff in a suit under section 9 of the Act is required to prove is his possession and dispossession within 6 (six) months next before the institution of the suit. In a suit of this nature the court is quite competent to pass a decree in favour of the plaintiff for recovery of the possession of the suit land, notwithstanding any claim of title that may be set up in defence. Md. Yakub Ali Vs Md. Atiar Rahman and others, 20 BLD (AD) 183. ....View Full Judgment

Section 9

Suit for recovery of possession—
Law is well settled that a suit for recovery of possession is maintainable when instituted within 6(six) months of dispossession. When it is proved that the plaintiff was in possession of the suit land wherefrom he has been dispossessed and the suit has been instituted within 6 (six) months of such dispossession, the court is bound to restore the possession in favour of the plaintiff. Suruzzaman (Md.) Vs. Ahmed AH and others 13 MLR (2008) (AD) 69. ....View Full Judgment

Section 9

Suit for recovery of possession filed within six months of dispossession is maintainable—
The law is well settled that a suit for recovery of possession filed within six months of dispossession is quite maintainable. The defendants who purchased the shares of some cosharers having no possession in the suit land, cannot forcibly enter into the possession thereof by dispossessing the other cosharer in possession. His remedy lies in properly instituted suit for partition. Maruf Hossain (Swopon) Vs. Diljan Bibi and others 13 MLR (2008) (AD) 196. ....View Full Judgment

Section 12

Suit for specific performance of contract is not maintainable when the suit property is enlisted as enemy or vested property— Plea of adverse possession when not taken in the pleadings can not be entertained—
Decree of compromise effected, by persons having no title and interest does not create any right title and interest. Limitation for execution of decree for specific performance of contract is three years from date of decree. After the expiry of the limitation the decree becomes infructuous. Where the suit property is enlisted as enem) or vested property the proper suit to be filed is for declaration that the suit property is not enemy or vested property. Md. Alt Bepary and others Vs. Gitnipranjan Chakraborty and others 14 MLR (2009) (AD) 218. ....View Full Judgment

Sections 12, 21A and 42

By no imagination, the declaration can be treated or construed as one for specific performance of contract and such declaration clearly attracts the provisions of section 42 of the Act. So far as the first declaration is concerned, it appears to us a bit debatable, i.e. straightway, it cannot be said either it comes within the periphery of a suit for specific performance of contract as provided in section 12 of the Act or attracts the mischief of section 42 thereof and this debate can only be resolved on a full scale hearing of the suit and on assessment of the evidence to be produced by the parties at the trial. .....Comprehensive Holdings Ltd.=VS=MH Khan Monju, (Civil), 2017 (2)– [3 LM (AD) 198] ....View Full Judgment

Section 12

Explanation
Breach of Contract—Compensation
The principle relating to specific relief’s are contained in the Specific Relief Act, 1877. The explanation to section 12 of the Specific Relief Act raises a presumption that the breach of a contract to transfer movable-property can be adequately relieved by compensation unless and until the contrary is proved. Bazlur Rahman Bhuiyan Vs. Bangladesh Shipping Corporation (1982) 34 DLR (AD) 42. ....View Full Judgment

Section 12

Right to property — Whether specific performance of contract is a right to property — Right to specific performance of contract for sale of any property is a right relating to property It must receive protection in the absence pf any provisions of law to the contrary — Such right will no longer remain a right unless when threatened or invaded it can be protected in the Court of law. Asaduzzaman Vs. Bangladesh, represented by the Secretary, Ministry of Public Works and Urban Development, 4BLD (AD) 189 ....View Full Judgment

Section 12

Specific performance of contract — In a suit for specific performance the question is whether there was a concluded contract between the parties which could be enforced — It is well-settled that the Court will not decree a suit for specific performance of a contract the terms of which are uncertain — As there was no concluded contract the same could not be enforced. H.N. Fabrics Ltd. Vs. Mallick Textile industries and others, 5 BLDAD)271 ....View Full Judgment

Section 12

Suit for declaration of a registered deed as void and fraudulent is not maintainable without seeking cancellation—
Where the plaintiff is allegedly a party to the kabala as executant duly registered, his suit for mere declaration of the same as void and fraudulent is not maintainable without seeking for cancellation thereof. Aslam Khan (Md.) Vs. Haji Abdur Rahim and others 12 MLR (2007) (AD) 149. ....View Full Judgment

Section 12

Suit for specific performance of contract—
To pass a decree in a suit for specific performance of contract is discretion of the court. In order to be entitled to a decree for specific performance of contract, the plaintiff shall have to prove the genuineness of contract by consistent and reliable evidence. When the deed of contract appears to be not genuine and tainted with element of fraud, the plaintiff can not get a decree for specific performance of contract. AH Akbar (Md.) Vs. Shajinmnessa Bezva and others 11 MLR (2006) (AD) 205. ....View Full Judgment

Section 12

Suit for specific performance of contract—
The trial court after proper appreciation of the evidence on record and having been satisfied decreed the suit for performance of contract. The High Court Division dismissed the appeal. The apex court found that the plaintiff was able to prove his case with convincing evidence such as handing over the title deeds of the suit land to him and as such being in agreement with the High Court Division dismissed the appeal. Abdul Malek Mollah Vs. Md. Abdul Salam Mora] and another 14 MLR (2009) (AD) 158. ....View Full Judgment

Section 14

The Act contemplates in certain cases payment of money in compensation.
The Specific Relief ACL contemplates the possibility in certain circumstances, one of which is that the unperformed part of a contract in fact admits of compensation in money”, that a decree may be made awarding compensation in money for the deficiency while granting specific performance as to the rest. In equity jurisdiction, it has often been said that equity may treat land as money or money as land for the purpose of doing justice in the case. Joydeb Agarwala Vs. Baitulmal Karkhana (1964)16 DLR (SC) 706. ....View Full Judgment

Section 15

Applicability of the section—is confined to a case where the vendor purports to sell the whole property making no reference to any co sharer, when in fact a co-sharer exists.
On a proper reading of section 15 of the Specific Relief Act it becomes plain that this section would have application if the vendor had expressly purported to sell the whole property to the plaintiff, making no reference to any co-sharer. But where (as in the present case) the agreement expressly says that the vendor undertakes to get the property duly and legally conveyed in favour of the vendee by his co-sharer the provisions of sec. 15 of the Specific Relief Act have no application.
This circumstance makes it clear that the vendor (as in the present case) was not entering into an agreement by which he was obliging himself to convey the whole property to the plaintiff and consequently the provisions of sec Lion 15 cannot be called in aid (to the present case). Anwara Chowdhury Vs. M. Majid (1964) 16 DLR (SC) 609. ....View Full Judgment

Section 16

Specific performance —Of the three vendors one is a minor and the contract is void in respect of minor’s 1/3 share — Contract in the facts of the case found divisible — Purchaser entitled to a decree for specific performance in respect of 2/3 shares of the property. Archana Prasad Nandi Vs. Miss (‘hula Randolph and others, 2 BLD(AD)90 ....View Full Judgment

Sections 19 and 29

Refund of consideration money — The unsuccessful plaintiff in a suit for specific performance of contract whether entitled to i-efund of consideration money — Question requires to be decided on evidence. Ali Haider Vs. Md. Jonab Ali Bepari and others, 3 BLD(AD)313 ....View Full Judgment

Section 22

The proper from of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff in order to avoid all controversies. Ezaher Meah and others vs Shaher Banu and others 49 DLR (AD) 85. ....View Full Judgment

Section 22

In a suit for specific performance of contract for sale of immoveable property plaintiff is entitled to delivery of possession. A trespasser in the suit property is liable to be impleaded in the suit and evicted from the suit property to give effective relief to the plaintiff. Nurul Islam and others vs Jamila Khatun and others 53 DLR (AD) 45. ....View Full Judgment

Section 22

The petitioners are mere trespassers and they could not establish their claim of auction purchase of the suit property and as such they cannot challenge the exercise of discretion in favour of the plaintiffs. Nurul Islam and others vs Jamila Khatun 53 DLR (AD) 45. ....View Full Judgment

Section 22, Items I and II

The relief sought for by the appellant does not lie in Item—I stating that the contract if enforced would give the plaintiff an unfair advantage over the defendant­. High relief lies in Item—II wherein it is stated that the performance of the contract would involve hardship on the defendant. L Rahman vs G Ahmed 39 DLR (AD) 242. ....View Full Judgment

Section 22, Items I and II

Mere hardship to the defendant will not be a circumstance falling under Item—II. L Rahman vs G Ahmed 39 DLR (AD) 242. ....View Full Judgment

Section 22, Items I and II

Discretion of the court should not be arbitrary but sound and reasonable, guided by judicial principles. L Rahman vs G Ahmed 39 DLR (AD) 242. ....View Full Judgment

Section 22, Items I and II

It may be better that such principles be left undefined—Each case must be decided on its own fact. L Rahman vs G Ahmed 39 DLR (AD) 242. ....View Full Judgment

Section 22, Items I and II

When the hardship is on both sides proper course is to examine the admitted facts and circumstances as furnishing the safest guide. L Rahman vs G Ahmed 39 DLR (AD) 242. ....View Full Judgment

Section 22, Items I and II

The hardship is on the defendant which he did not foresee whereas on the other hand there is no such hardship on the plaintiff. L Rahman vs G Ahmed 39 DLR (AD) 242. ....View Full Judgment

Section 22(II)

'Hardship' as contemplated in section 22(11) means "Hardship' considered in the circumstances that existed at the time the contract was made. Quazi Din Mohammad vs Al­haj Arzan Ali and another 47 DLR (AD) 48. ....View Full Judgment

Sections 22 & 24

Solatium—Specific performance was refused on the ground of hardship of the respondent. If solatium is paid only on consideration of the present market value of the land in question then the purpose of refusing specific performance on the ground of hardship will be defeated. Tobarak Ullah vs Rani Gupta 43 DLR (AD) 100. ....View Full Judgment

Section 22

Hardship— the petitioner didn’t even make out a case for relief—under section 22 of the Specific R1ief Act before the High Court Division — belated plea of the hardship cannot be accepted. [Para-4} B. C. Barua Vs. S. C. Barua & Ors. 4BLT (AD)-144 ....View Full Judgment

Sections 22 (11), 24 (b) and 28(a)

(a) Section 22 (11) — Hardship’ means hardship considered in the circumstances that existed at the time the contract was made — enforcement of a contract of refusal to enforce it lies in the courts discretion — the discretion of the Court is not arbitrary, but sound and reasonable, guided by judicial principles and capable of correction by a Court of Appeal. [Paras-11 & 12]
(b) Section 24(b) — Failure to deposit the balance before filing the suit does not constitute violation of any term of the contract to deposit of the balance is not an essential term of the contract the violation of which will render the whole contract unenforceable. [Para-8]
(c) Section 28 (a) — To attract this subsection, on ‘inadequate’ price must be an evidence of fraud or of undue advantage taken by the plaintiff — Evidence on record shows that negotiation for the agreement was made and price was settled through the appellant’s relation and benefactor Asga.r Hossain (P.W.4) — Asgar Hossain proved to be the appellant’s ‘friend in need’ as well as ‘friend in deed’. As to the respondent the appellant expressed full confidence in him there is no scope for any doubt that these two persons had by fraud or by taking undue advantage got the agreement executed at a grossly inadequate price. With reference to the state of things existing at the date of the agreement — the consideration was not grossly inadequate. (Para-9l
Quazi Din Mohammad Vs Alhaj Arzan Ali & Anr 2 BLT (AD)-175. ....View Full Judgment

Section 22

Suit for specific performance — Court is to be guided by the principles laid down in Chapter II of the Specific Relief Act — Direction in such suit is regulated by law — The discretion is not wide enough to vary the terms of a contract without assigning good reasons for the variation — Sale of Goods Act. 1930 (III of 1930), S. 58. Bazlur Rahman Bhuiyan Vs. Bangladesh Shipping Corporation, 1BLD(AD)443 ....View Full Judgment

Section 22

In a suit for specific performance is discretionary—The Court is not bound to give such a relief merely because it is lawful to do so—In consideration of the facts and circumstances of the case, specific performance would give the plaintiff an unfair advantage over the defendants and as such it is a fit case where the decree for specific performance should not be granted as a matter of course—The defendants to return the consideration with compensation. Jogesh Chandra Das and others Vs. Farida Hasan, 3BLD(AD)225 ....View Full Judgment

Section 22

A decree for specific performance of contract is discretionary — The Court is not bound to grant such relief merely because it is lawful to do so — II is not to be granted as a matter of course. Ram Chandra Das and others Vs. Md. Khalilur Rahman and another, 5BLD (AD)41 ....View Full Judgment

Section 22

Specific performance of contract — When it should be refused — It is true that the plaintiff did not resort to any fraud or misrepresentation, but in the circumstances it can reasonably be held that the specific performance of the contract would cause hardship to the appellant and as such it should be refused — But since the plaintiffs earnest money was held up for a long time she deserves a reasonable compensation. Rakhal Dasi Rajakini Vs. Ayesha Khatun City and ano, 5 BLD(AD)49 ....View Full Judgment

Section 22

Question of exercising discretion by the Court —Specific performance is an equitable relief but equity is not available to a person whose intention is not honest when the purpose of the contract was defeated and the plaintiff was not ready and willing to perform his part of the contract within a reasonable time, the High Court was justified in refusing specific performance of the contract reversing the concurrent decision of the trial Court and the lower appellate Court. Rash Behari Moshalkar Vs. Hiran Bala Debi and another, 5BLD(AD)51 ....View Full Judgment

Section 22

Specific performance of contract— When the Court should use its discretion in refusing decree for specific performance?— The plaintiff entered into a deal and a contract was concluded and now he wants to enforce it — Suit property is the only homestead of the defendants and they will be on the street if the contract is enforced — The defendants did not for-see the hardship at the time of the con-tract. Non-performance of the contract would deprive the plaintiff to the acquisition of the property for which he entered into a deal, but that will not be “such hardship” on him as it would be a hardship on the defendant if the contract is enforced — The Contract should not be enforced specifically if the appellant returns the advance money with a solatium of Tk. 1, 00,000/- Md. Latifur Rahman and others Vs, Golam Ahmed Shah and others, 6 BLD (AD)231 ....View Full Judgment

Section 22

Specific performance of contract— Exercise of discretion not to decree the suit though the contract is proved — Where the hardship has been brought upon a party by himself the Court will not consider that as a circumstance in favour of refusal of specific performance — In any particular case the bargain may be found to be onerous but unless it is found to be unconscionable it would not be allowed to be avoided — There is nothing to show that the defendant had to agree to sell her homestead under some circumstances but for which she would not have parted with her property — When the plaintiff is in possession of the land in part performance of the contract and has been residing on the land by constructing homestead, refusal to specifically perform the contract would amount to hardhsip to the plaintiff. Md. Siddiqur Rahman Vs. Sarala Sundan Devi and another, 7 BLD (AD) 138 ....View Full Judgment

Sections 22 and 24

Solaitum — Suit for specific performance of contract for sale of land — Contract between parties in 1969 — The plaintiff ad vanced part of consideration money to the defendant who promised to execute necessary kabala on receipt of the balance but ultimately failed to execute the sale deed denying contract — Defendant died, her heirs were substituted and contested the suit. The trial Court dismissed the suit. On appeal, the first lower appellate Court decreed the suit and ordered specific performance of contract On second appeal the High Court Division maintaining findings of the first appellate Court refused specific performance of contract and ordered refund of earnest money with a certain amount of solatium to the plaintiff which was considered veiy inadequate by the appellant.
In view of the facts and circumstances of the case a solalitum of Taka 25,400/- was considered reasonable and adequate in this case. This along with the earnest money of Taka 4,600/- in all 30,000/- Taka, should be paid to the appellant Tobarakulla Vs. Rani Gupta and another, 10BLD (AD)285 ....View Full Judgment

Section 22

When the plaintiffs-substantive prayer is for a decree for specific performance of the contract and only alternatively he prays for refund of the earnest money in the event of refusal of specific performance of the contract, it cannot be argued that in the face of an alternative prayer for the refund of the earnest money the plaintiff is not entitled to a decree for specific performance of contract.
The granting of a decree for specific performance of a contract is the discretion of the court but it must be exercised on the basis of sound judicial principles capable of correction by a superior court. The court may not exercise the discretion for specific performance of a contract where such performance involves hardships on the part of the defendant which he did not foresee whereas its non- performance would not cause such hardships to the plaintiff. Amena Khatun and others Vs. Hajee Abdul Jabbar being dead his heirs: Mst. Maleka Banu and others, 14 BLD (AD) 267. ....View Full Judgment

Sections 22(11), 24(b) and 28(a)

When a party does riot come to the court with a clean hand, he is not entitled to get benefit of Section 22(11) on grounds of hardship. Hardship’ as contemplated in Section 22(11) of the Act means hardship has to be considered in the circumstances that existed at the time of the contract.
Enforcement of a contract or refusal to enforce it lies in the discretion of the Court but this discretion is. not arbitrary, but sound and reasonable, guided by established judicial principles and capable of correction by a Court of appeal.
The condition as to deposit of the balance of the consideration in the Court is not an essential term of the contract the violation of which will render the contract unenforceable.
When the plaintiff comes to the Court seeking specific performance of a contract, it is -implied that he is ready to make the deposit whenever so directed by the Court. Section 24(b) cannot be a bar against the Plaintiff.
Mere inadequacy of price does not bring a case within the ambit of Section 28(a) of the Act. To attract this sub-section an inadequate price must be attended with evidence of fraud or of undue advantage taken by the Plaintiff. Quazi Din Mohammad Vs. Al-haj Arzan Ali and another, 14 BLD(AD)211 ....View Full Judgment

Section 24(b)

When the respondent came· to the Court seeking specific performance it is implied that he is ready to make the deposit whenever so directed by the Court. Quazi Din Mohammad vs Al-haj Arizan Ali and another47 DLR (AD) 48. ....View Full Judgment

Section 24(b)

Failure to deposit the balance before filing the suit does not constitute violation of any term of the contract to deposit of the balance is not an essential term of the contract the violation of which will render the whole contract unforceable. Quazi Din Mohammad Vs Alhaj Arzan Ali & Anr. 2BLT(AD)-175 ....View Full Judgment

Section 24

Specific performance of a contract — Repudiation of non-essential terms of the contract and its legal effect — The agreement of sale is a separate contract and the payment of profit on account of business is completely different — The section makes a distinction between the essential terms and the non-essential terms of the contract — The repudiation of the non-essential terms would not disentitle the plaintiff to specific performance of the contract. Saieh Ahmed being dead his heirs Rabeya Khatun and others Vs. Md. Shamsher, Mi and others, 4BLD (AD) 73. ....View Full Judgment

Section 26

Specific performance—Variation of contract — Variation made in the decree as to the mode of payment — Defendant not setting up a case for variation of the contract — Variation by the Court is fully unauthorised. Baziur Rahman Bhuiyan Vs. Bangladesh Shipping Corporation, 1BLD (AD)443 ....View Full Judgment

Section 27(b)

Enforcement of performance of contract is permissible except in the case of subsequent purchaser on good faith for valuable consideration and without knowledge of the original agreement— The onus to prove the bonafide lies upon the subsequent purchaser—
Subsequent purchaser on good faith and without notice of the original agreement for sale of suit land can be protected under section 27(b) of the Specific Relief Act. The onus lies heavily upon the subsequent transferee to prove that he on good faith purchased the suit land and paid the consideration money and he had no knowledge of the original agreement. joynab Begum and others Vs. Shaheb AH Akun ji and others 12 MLR (2007) (AD) 337. ....View Full Judgment

Section 27 clause-(b)

Specific performance of a contract may be enforced against “any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract”. The expression “under him” is referable to clause (a) of Section 27 i.e. either party to the contract. In view of the aforesaid provision of law as the defendant No.2 had acquired title to the property as regard which defendant No.1 earlier entered into an agreement for sale with the plaintiffs and as we have already held that defendant No. 2 failed to establish that he has purchased the property in question in good faith without notice of the original contract the High Court Division was quite correct in decreeing the suit against the defendants and in making direction to the defendant No. 2 to execute and register the kabala in favour of the plaintiffs. Hajee Lal Mia Vs. Nurul Amin & Ors. 13 BLT (AD)145 ....View Full Judgment

Section 27

Whether a contract for sale of property can be enforced against the Custodian of Enemy Property — As the custodian stepped into the shoes of the owner with the power of transfer he can execute the kabala in favour of the plaintiff who got decree for the specific performance of contract for sale. Rahima Akhter and others Vs. Asim Kumar Bose and others, 5BLD(AD)155 ....View Full Judgment

Section 27

Amendment of plaint—Whether in a suit for specific performance of contract for sale of property prayer for amendment of plaint by inclusion of a prayer for execution and registration of the sale deed also by the purchaser subsequent to the contract with the plaintiff should be allowed— The suit is for specific performance of a contract which was executed ‘on 22nd January, 1981 on which date the purchaser defendant was not in the scene — The contract related to properties which then solely belonged to defendant No. I — Defendant No. 2 came into the picture nearly eight months after — Unless he can claim ownership of the properties on and from this date how he can be compelled to execute the sale deed on the basis of such a contract — Since defendant No. Z has already been impleaded in the suit, he being subsequent transferee will be bound by the decree in the suit — The prayer for declaration that subsequent deed was void and fraudulent if allowed the plaintiff will have no ground for more grievance — Rejection of prayer for amendment of the plaint by the Courts below is approved — Code of Civil Procedure, 1908(V of 1908), Or. VI Rule 17. Nurul Amin and others Vs. Md. Faziul Huq and others, 7BLD(AD)185 ....View Full Judgment

Section 28(a)

Inadequacy of price—Mere inadequacy of price will not bring a case within the ambit of this sub—section. To attract this sub­section, an 'inadequate' price must be an evidence of fraud or of undue advantage taken by the plaintiff. Quazi Din Mohammad vs Al—haj Arzan Ali and another 47 DLR (AD) 48. ....View Full Judgment

Section 28 (a)

To attract this subsection, on inadequate price must be an evidence of fraud or of undue advantage taken by the plaintiff— Evidence on record shows that negotiation for the agreement was made and price was settled through the appellant’s relation and benefactor Asgar Hossain (P.W.4) — Asgar Hossain proved to be the appellant’s ‘friend in need’ as well as ‘friend in deed’. As to the respondent the appellant expressed full confidence in him there is no scope for any doubt that these two persons had by fraud or by taking undue advantage got the agreement executed at a grossly inadequate price. With reference to the state of things existing at the date of the agreement — the consideration was not grossly inadequate. Quazi Din Mohammad Vs Alhaj Arzan Ali & Anr. 2BLT(AD)-175 ....View Full Judgment

Section 35

Rescission of contract— The plaintiff in the suit for specific performance of contract are deemed to have forsaken their right to have a deed of sale from defendant Rajeshwar when they received his offer to take back from him the advance purchase—money but made no response thereto. Even when Rajeshwar pays back the advance purchase—money with compensation, the contract is not terminable at his option—the option lies with the plaintiffs, not with defendant. Rajeshwar Habibur Rahman vs Sree Jogiswar Roy 44 DLR (AD) 247. ....View Full Judgment

Section 39

Hebabil awaj deed is as good as a sale deed— A registered Hebabil away deed cannot be avoided by creation of a subsequent cancellation deed—
A registerd Hebabil awaj deed is as good as a sale deed which the executant can not undo by a subsequent cancellation deed. Such an instrument can only be avoided by a decree of competent civil court. Rnhmnt Goni Vs. Mehenmnessa and others 12 MLR (2007) (AD) 166. ....View Full Judgment

Section 39

Suit for setting aside exparte decree on ground of non-service of summons—
The plaintiff instituted the suit for setting aside the exparte decree on ground of non-service of summons claiming title on the basis of auction purchase by the ex-land lord in rent sale. But on scrutiny it was found the summons were duly served upon the defendants. Except the certified copy of the sale certificate no writ of delivery of possession was produced; nor the records from the Revenue department was called for. The High Court Division disbelieved the story of auction purchase and restored the judgment and decree of the trial court dismissing the suit which the apex court upheld as being one perfectly justified. Bangladesh represented by the Deputy Commissioner, Kiirigram Vs. Mohammad AH Khondaker 12 MLR (2007) (AD) 180. ....View Full Judgment

Section 39

Deed which is void ab-initio need not be sought to be declared void—
Suit for declaration of title simpliciter— maintainable- Restoration of possession when dispossessed during pendency of the suit—
Suit for declaration of title is maintainable when the plaintiff was in possession of the suit land at the time of institution of the suit. Court is bound to restore possession where the plaintiff has been dispossessed in violation of the order of status quo during pendency of the suit. Abdul Awal and others Vs. Nayan Chandra Das 13 MLR (2008) (AD) 71. ....View Full Judgment

Section 39

Prayers for an instrument's cancellation also is consequential relief, then the plaintiff will have to pay for it—But cancellation of the instrument is not indispensably necessary in all cases—A void document need not be cancelled—Where the document is ex facie void its cancellation is not necessary even if the plaintiff is party to it—Where under section 39 cancellation is found necessary the suit should not be dismissed in the absence of such a prayer but the plaintiff should be asked to pay additional court—fee. Sujia Khanam vs Faizun Nessa 39 DLR (AD) 46. ....View Full Judgment

Section 39

In order to remove the impediment in the way of the plaintiffs to get complete relief along with the declaration the plaintiffs needed to make a prayer for cancellation of the document on payment of ad valorem court­ fee the High Court Division fell into an error of law in setting aside the order of remand made by the appellate Court and restoring the decree of the trial Court without giving any chance to the appellate Court to give its decision on the merit of the case. Chitta Ranjan Chakraborty and others vs Md Abdur Rob alias Mvi Md Abdur Rob 49 DLR (AD) 96. ....View Full Judgment

Sections 39 and 42

The plaintiff­re-spondents after having obtained a declaration as to the illegal and fraudulent character of the impugned kabala deed and also a declaration of their title to the suit land do not need any cancellation of the impugned deed, they not being parties to the impugned kabala deed. Momtaz Begum & others vs Md Masud Khan 52 DLR (AD) 46. ....View Full Judgment

Section 39

In the instant case the plaintiffs are executants of the kabala in question and therefore very much a party to the document. The kabala, as the facts indicate, is not certainly void but voidable. In order to remove the impediment in the way of the plaintiffs to get complete relief along with the declaration the plaintiffs needed to make a prayer for cancellation of the document on payment of advolorem Court fee. [Para- 12] Sree Chittaranjan Chakraborty Vs. Md. Abdur Rob 5 BLT (AD)-135 ....View Full Judgment

Sections 39 and 42

Cancellation of a deed — Whether such a relief is a consequential relief or an independent relief — Declaration of nullity of a deed is the main and substantive relief whereas cancellation of the deed is a consequential relief — A suit for declaration that the instrument is void and that it has not affected the plaintiffs right or that the defendant has not acquired any right thereby is a suit falling under both sections 39 and 42 of S.R. Act — In a suit under section 39 the plaintiff may seek merely a decree for nullity of the instrument but if he prays for its cancellation he must pay for it — But cancellation of the instrument is not always necessary —Where the document s ex facie void its cancellation is not necessary even if the plaintiff is a party to it — The declaratoiy decree that the document is void and the plaintiff s right has not been affected thereby will give him adequate relief — Of course, in view of this decree the instrument will not stand cancelled — In his own interest the plaintiff should also seek additional relief by way of cancelling the deed — Where the document has been adjudged voidable it will have to be cancelled but when it is adjudged void it need not be cancelled. Sufia Khanam Chowdhury Vs. Faizun Nessa Chowdhury, 7BLD(AD)55 ....View Full Judgment

Section 42

Suit for declaration of title in the absence of satisfactory proof— not maintainable—
In the instant suit the plaintiffs could not establish his title either by documentary or by oral evidence and as such the trial court on specific findings dismissed the suit which i he High Court Division as well as the Appellate Division upheld. Mozaffar Rahman (Md.) and others Vs. Government of Bangladesh and another 15 MLR (2010) (AD) 170. ....View Full Judgment

Section 42

Suit for declaration that there was no marriage solemnized with the defendant—
In the instant suit the defendant claims that her marriage with the plaintiff was duly solemnised by executing kabinnama and their marriage was consummated and a son was born out of their wedlock. The plaintiff could not prove that his signature was obtained in the kabinnama under threat and coercion. The trial court dismissed the suit. The appellate court and the High Court Division held the same view and dismissed the appeal and the revision. The apex court found nothing wrong with the impugned judgment and order. Abdul Jalil Sarder (Dr.) (Md.) Vs. Selina Akhter 15 MLR (2010) (AD) 240. ....View Full Judgment

Section 42

Declaration of title on the basis of a registered Heba deed— A registered Heba deed cannot be cancelled by a subsequent registered deed—
Law is well settled that a registered heba deed duly acted upon can not be done away with by creation of a subsequent deed of cancellation. The settled principle of law is that such a deed can not be avoided except by a decree of civil court. Jobeda Bewa and others Vs. Md. Abdur Razzaque 12 MLR (2007) (AD) 16. ....View Full Judgment

Section 42

Suit for mere declaration of title without seeking recovery of possession not maintainable when the plaintiff is out of possession—
A suit for mere declaration of title to an unspecified and vague land and when the plaintiff is out of possession is not maintainable without seeking consequential relief for recovery of possession. Ershad AH Hoivlader being dead his heirs Nazrul Islam (Babul) and others Vs. Santi Rani Dhupi and others 12 MLR (2007) (AD) 105. ....View Full Judgment

Section 42

Suit for declaratory decree is not maintainable—
In a case where the plaintiff has no title to the suit property his suit for declaration that the order of cancellation of mutation, by revenue officer as illegal is not maintainable. Bazlur Rahman Barker Vs. Kamala Kanta Barman and another 12 MLR (2007) (AD) 137. ....View Full Judgment

Section 42

The Specific Relief Act, 1877
Section 42 read with
The State Acquisition and Tenancy Act
Section 143A
Appellate Court being the last Court of facts–
The appellate Court being the last Court of facts, found that the plaintiffs were eight annas owners of the suit property including houses which may be standing thereon. We find that the evidence and materials on record fully support such finding. The view taken by the High Court Division, is in our view erroneous and, hence, the impugned judgement is not sustainable. The impugned judgement and order of the High Court Division is set aside. .....Hena Begum(Most.) =VS= Abdul Kader, (Civil), 2017 (2)– [3 LM (AD) 229] ....View Full Judgment

Section 42

Plaintiff has not asked for any relief that the suit is hit by the provision of Sec. 42 of S.R. Act–
It also appears that the plaintiff has mentioned in his plaint that he was served with a notice by the defendant to quit the said land and it has been admitted at the time of hearing that the said notice was served asking the plaintiff to quit the suit land. It appears from the plaint that that the plaintiff has not asked for any relief regarding the notice nor did he file the same in the Court. It has further been averred that the defendants are conspiring to oust him from the suit land and accordingly threatened him on 30.06.1989 with dispossession therefrom. Thus, it is also apparent that the plaintiff had further relief or reliefs to ask for and in that view of the matter the suit is hit by the provision of Section 42 of the Specific Relief Act. .....Hashmat Ullah Tapadar(Md.) =VS= Baset Khan(Md.), (Civil), 2018 (2) [5 LM (AD) 397] ....View Full Judgment

Section-42

Declaration of title with khas possession–
We find no wrong, illegality or infirmity in the impugned judgment of the High Court Division. Rather, we find that the High Court Division was quite correct and justified in restoring the judgment and decree of the trial Court setting aside the judgment and decree of the appellate Court. .....Bishow Ram Chawhan =VS= Rabeya Bari Chowdhury, (Civil), 2017 (2)– [3 LM (AD) 181] ....View Full Judgment

Section 42

The suit for declaration simpliciter was barred in view of the provision of Section 42 of the Specific Relief Act in the absence of any prayer for recovery of khas possession–
The learned Judge of the High Court Division has resolved the points as regards title and possession of the suit land in favour of the plaintiff in accordance with law. In view of the conflicting evidence of the parties with regard to possession the possession should be found with the party having better title and when the possession is found in favour of the plaintiff, the suit for declaration simpliciter is maintainable. The appeal is accordingly dismissed without any order as to costs. .....Hemayet Uddin =VS= Md. Rustam Ali, (Civil), 2018 (1) [4 LM (AD) 228] ....View Full Judgment

Section 42

Declaration of title–
The High Court Division has totally ignored that aspect and illegally interfered with the judgments keeping those finding intact. Thus it has exercised power not vested by law, inasmuch as, it cannot interfere with the findings of fact arrived at by the final court of fact in the absence of any misreading or non-consideration of the evidence on record. .....ADC (Rev), Rangpur =VS= Amir Hossain, (Civil), 2017 (2)– [3 LM (AD) 3] ....View Full Judgment

Section 42

read with
The Code of Civil Procedure
Order 6, Rule 17 read with
The Limitation Act
Article 142
Amendment of Plain– It is now settled that as to the question of limitation there are two ways in which the same may arise . “First, whether the claim to be included was barred on the date of the institution of the suit. Secondly, whether the claim is barred on the date of the prayer for amendment. On the first case, the prayer for amendment can not be allowed as it is barred on the date of institution of the suit and on the second case, the prayer can be allowed.” The suit was instituted on 7th March, 1964 and though the amendment of the plaint was made on 19th April, 1977, as soon as the prayer for amendment was allowed, the said amendment related back to the date of institution of the suit, as if those statements in the amendment petition were made in the original plaint. In that view of the matter, the learned Counsel is absolutely wrong in his contention that the amendment is barred by limitation. Article 142 of the Limitation Act applies when a plaintiff set up a case of possession followed by dispossession. In such a case the onus is on the plaintiff to prove that he was in possession within 12 years from the date of the institution of the suit. …Monowara Begum(Most.) =VS= Malanch Bibi, (Civil), 2020 (1) [8 LM (AD) 102] ....View Full Judgment

Section 42

Under section 42 where consequential relief is found necessary, but has not been asked for the suit may either be dismissed or the plaintiff directed to pay additional court—fee—For relief sought by way of cancellation of a document, a kabala or a decree, section 39 is applicable—Declaration ofnullity of a document is the main and substantive relief, whereas cancellation of the instrument is a consequential relief. Sufia Khanam vs Faizunessa 39 DLR (AD) 46. ....View Full Judgment

Section 42

Where the plaintiffs are out of possession and the defendants are in possession, the “further relief” would be recovery of possession and the suit for declaration of title without prayer for recovery of possession is hit by the proviso to section 42 of the Specific Relief Act. …Delipjan =VS= Shahed Badsha, (Civil), 2020 (1) [8 LM (AD) 142] ....View Full Judgment

Section 42

A written instrument when is adjudged void, need not be cancelled—Plaintiff should also seek the additional relief by way of setting aside the decree or cancelling the deed­Suit for mere declaration that an instrument is void, maintainable without a prayer for its cancellation—Relief by declaration of nullity of any instrument and also relief by cancellation of the instrument provided in section 39. Section 42 does not specifically provide for declaration of nullity of any written instrument; nevertheless a decree for nullity of an instrument in view of the general provision therein comes under section 43. Sufia Khanam vs Faizunessa 39 DLR (AD) 46. ....View Full Judgment

Section 42

The words 'further relief' are meant not any and every kind of relief but one which would complete the claim of the plaintiff and not to lead to a multiplicity of suits. That further relief must flow necessarily from the relief of declaration. What is contemplated is a relief arising from the cause of action on which the plaintiff's suit is based. The relief which is inherent in original declaration claimed relief without which declaratory decree claimed would be meaningless and infructous. …Alimuzzaman (Reza)(Md.) =VS= Masudar Rahman(Md.) @ Babul, (Civil), 2020 (1) [8 LM (AD) 164] ....View Full Judgment

Section 42

If a person's right and title is clouded by an instrument he may seek a declaration under section 42 to nullify the effect of such an instrument—A suit for declaration that a deed whether a sale deed or decree is void comes under section 39 of the SR Act in terms of this section—But when further prayer is added that by the said deed plaintiffs right is not affected, this falls under section 42—If his suit includes the reliefs that the instrument in question is void and his right has not been affected thereby and, or, the defendant acquired no right thereby, then the reliefs are covered by both sections 39 and 42. Sufia Khanam vs Faizunnessa 39 DLR (AD) 46. ....View Full Judgment

Section 42

The question arose whether the respondent was a worker under the relevant labour law or he is an employee of the Corporation governed by its Service Rules or whether his remedy lay in a grievance petition under section 25 of the Act.
Leave was granted by us to consider the question whether the respondent is a worker under the relevant Labour Law or whether he is an employee of the Corporation, governed by its Service Rules, and whether his suit was hit by section 42 of the Specific Relief Act in the absence of any prayer for consequential relief.
We have heard lengthy arguments of the learned Advocates for both the parties—Mr Asrarul Hossain for the appellants and Mr Mahmudul Islam for the respondent. Mr Asrarul Hossain has contended that the order of the respondent's dismissal itself shows that he was treated as a worker of the Mills and was dismissed by the "Employer" under section 17 of the Act and as such his only remedy lay in a "grievance petition" before the Labour Court under section 25 of the Act.
Dosta Textile Mills vs SB Nath 40 DLR (AD) 45. ....View Full Judgment

Section 42

Respondent is a worker and he is not an employee of the corporation. Corporation Service Rules are not applicable to him. Dosta Textile Mills vs SB Nath 40 DLR (AD) 45. ....View Full Judgment

Section 42

As the plaintiff—appellant does not have title to the entire suit land the greater part of which is in fact an enemy and vested property, he is not entitled to a decree for declaration as prayed for—He may seek remedy by way of partition in an appropriate forum.
It is not ascertained what is the appellant's share nor is it clear whether the Il3rd of the suit land representing original owner Jugal Chand's share, has· been mcluoed in the Vested Property case. Determination of the appellant's lawful share in the suit land is not an issue in this suit. It is .a suit for declaration that the Vested Property case is illegal, collusive and void.· Now that the appellant is not found to have title to the entire suit land the greater part of which is in fact an enemy and vested property the appellant—plaintiff is not entitled to a decree he prayed for. He may seek remedy by way of partition in an appropriate forum. Decision of the High Court Division affirming that of the Appellant Court is perfectly correct. Nuruzzaman Sarker vs Seraj Mia 41 DLR (AD) 107. ....View Full Judgment

Section 42

In a suit for declaration of title to property when it stands attached under section 145 CrPC it is unnecessary to ask for further relief of recovery of possession. It is unnecessary to ask for possession when the property is in custodia legis. The fact that the decree may not be binding on the Magistrate does not affect the competence of the suit. Jogendra Kumar Dutta vs Nur Mohammad & others 45 DLR (AD) 173. ....View Full Judgment

Section 42

In the face of evidence showing that the plaintiffs have been possessing the suit land from 1351 BS and their names have been recorded in the Khatian and there being no evidence on record to prove that the Government ever took possession of the land as an enemy property, defendants' claim of title is sustainable. Additional Deputy Commissioner (Revenue) ys Md Siddiqur Rahman 46 DLR (AD) 179. ....View Full Judgment

Section 42

Maintainability of suit—The suit being one for declaration of title to an unspecified share of an undivided plot of land on the basis of gift and there being no evidence that the donor thereof was in exclusive possession at any time, is not maintainable without a prayer for partition. Tayeb Ali vs Abdul Khaleque 43 DLR (AD) 87. ....View Full Judgment

Section 42

Although an oral agreement for sale of an immoveable property is not barred by law, it has to be looked at with some suspicion unless it is proved by reliabe evidence. Moslemuddin (Md) and others vs Md Jonah Ali and another 50 DLR (AD) 13. ....View Full Judgment

Section 42

Plaintiffs could have asked for either joint possession or partition as .a .co-sharer of the defendants in the disputed land but they did not take any such stand in the lower appellate Court or even before the High Court Division, The impugned judgment calls for no interference. Enjaheruddin Mia vs Mohammad Hossain and others 50 DLR (AD) 84. ....View Full Judgment

Section 42

When the plaintiffs are in possession claiming raiyati settlement they cannot set up adverse possession to be entitled to a declaration of title. Salma Khatun and others vs Zilla Parishad Chittagong, represented by its Secretary and another 51 DLR (AD) 257. ....View Full Judgment

Section 42

In a case where plaintiff is a party to a document or decree that has clouded his title to the property in suit, he is to seek declaration either way, i.e., that the document or decree is void or void ab-initio or that for declaration as well as for cancellation. Dudu Mia and others vs Ekram Miah Chowdhury 54 DLR (AD) 7. ....View Full Judgment

Section 42

The High Court Division was not correct, rather was in error in observing that decrees are collusive and consequently those need not be set aside. Dudu Mia and others vs Ekram Miah Chowdhury and others 54 DLR (AD) 7. ....View Full Judgment

Section 42

In a suit for permanent injunction trial Court is not required to decide the title of respective parties. Chief Engineer, C&B and another vs Shah Hingul Mazar Sharif and others 54DLR (AD) 73. ....View Full Judgment

Section 42

Respondent was appointed a temporary junior teacher and her probation was for two years and she was allowed to continue in service for two and a half years. Relying upon the decision reported in 29 DLR 104, it is ruled that her continuation in the service beyond two years would amount to her confirmation in the service. Kadamtala Purba Basaboo Uchcha Bidalaya vs Hachna Hena Sarker Hasna Heba Sarker 56 DLR (AD) 193. ....View Full Judgment

Section 42

Neither the Government nor the Vested Property Authority challenged the decree of the trial Court. The defendant Nos. 6-8, being lessees of the Vested Property for one year, cannot have any locus standi to challenge the decree or prefer an appeal against such decree. Aroti Rani Paul vs Sudarshan Kumar Paul and others 56 DLR (AD) 73. ....View Full Judgment

Section 42 and 39

Section 42 does not provide for declaration of nullity and cancellation of a written instrument but section 39 does so. 'Voidable', it will have to be avoided both by declaration and cancellation; and if the document is adjudged void or void ab initio it need not be cancelled—Sale deed void because of fraud, need not be cancelled. Sufia Khanam vs Faizunnessa 39 DLR (AD) 46. ....View Full Judgment

Section 42

Suit for declaration — In a suit for declaration of title mere possession of the property is not sufficient unless the plaintiff can produce a document of title showing his acquisition of right, title and interest in the suit property. [Para-3] M. B. Ahmed Vs. D. C. Saha & Ors. 4 BLT (AD)-150 ....View Full Judgment

Section 42

The plaintiff-respondents filed a suit for declaration of their title to the disputed tank stating, inter alia that during S. A. operation the disputed tank having wrongly been recorded in the name of defendant No. 1 — Trial court without recording any evidence, dismissed the suit holding that the plaintiff having not sought for the consequential relief like confirmation of possession, the suit being hit by the proviso to section 42 of the Specific Relief Act. It was not maintainable. On appeal, the learned District Judge dismissed the appeal and affirmed the judgment and decree of the trial court — High Court Division allowed the appeal — Held: The High Court Division upon assigning proper reasons rightly set aside the judgment and decree of the courts below and sent back the case on remand to the trial court for its expeditious disposal in accordance with law. (Para-3] Kalipada Sarker Vs. Gorihullah Mondal & Ors. 4BLT (AD)-167 ....View Full Judgment

Section 42

Suit for declaration of title — R. S. Khatian is not a document of title — In 33 DLR- 126, decision was given In the context of a suit for partition It has no relevance in the context of a suit for declaration of title. Syed Ahmed & Ors Vs. Raja Miah & Ors. 4 BLT (AD)-224 ....View Full Judgment

Section 42

Suit for declaration of title and recovery of possession—not maintainable
There is no averment in the plaint of plaintiffs dispossession from the suit land within twelve years of bringing the suit which is for recovery of khas possession: notwithstanding this, both the trial court and the lower appellate court concurrently found that the plaintiffs had never been in possession of the suit land. In such circumstances the suit is not maintainable. (Para-1 1) Amanatullah & Ors Vs. Ali Mohammad Bhuiyan & Anr 6 BLT (AD)- 1 ....View Full Judgment

Section 42

The suit property is a requisitioned and acquired property and the defendant’s possession therein will not deprive the plaintiff from maintaining his title and to recover his possession. [Para-7] Ambiya Khatoon & Ors. Vs. Md. Zahirul Islam & Ors 7 BLT (AD)-213 ....View Full Judgment

Section 42

In the instant suit, even in pursuance of the contracts for sale the plaintiffs’ possession, so far as the real owners are concerned, has been a permissive possession. It is evident from the Trial Court’s judgment that the plaintiffs have stated in the plaint that their vendors refused on 29.7.88 to execute and register the kabalas for the suit land and on that date the cause of action for the suit arose. Thus, at best from 29.7.88 the plaintiffs’ possession in the suit land may be said to be adverse against the real owners. But such possession does not entitle the plaintiffs to get a decree of declaration of title on adverse possession. [Para-8] Sheik Kamal Boksh & An Vs. Seraj Boksh & Ors. 7 BLT (AD)-328 ....View Full Judgment

Section 42

It is apparent that on the date of filing the suit or on the date of cause of action for filing the suit, the plaintiffs were under the constant threat of dispossession by the defendant. Therefore, they were legally obliged either to pray for permanent injunction or to pray for confirmation of possession as consequential relief along with the prayer for declaration of title to the suit land within the meaning of the proviso to section 42 of the Specific Relief Act, but they did not make any such prayer and they only prayed for a declaration of title to the suit land. Therefore, the plaintiffs' suit was not maintainable in law within the meaning of the said proviso to section 42 of the Specific Relief Act. It is true that the trial Court dismissed the suit not on the ground of its maintainability, but on other grounds as noted down hereinbefore, but this being a point of law and maintainability of the suit goes at the very root of the matter and when this has come to the notice of this Court, this Court cannot overlook the provision of law.
The High Court Division, like the Appellate Court affirming the judgment and decree of the Appellate Court consider the factual finding arrived at by the trial Court about the amalnama, the basis of the plaintiffs title the maintainability of the suit and therefore, erred in law in discharging the Rule.
We find merit in the appeal and accordingly, the same is allowed. The impugned judgment and order affirming those of the Appellate Court is set aside and those of the trial Court are restored. ...Pear Ali Bepari =VS= Md Abdul Hai, (Civil), 2019 (1) [6 LM (AD) 119] ....View Full Judgment

Section 42

Temporary injunction—Suit for declaration of title without prayer for consequential relief—Temporary injunction restraining defendant from interfering with possession whether can be granted?
The principle that in a suit for declaration of title to lands simplicities without any prayer for consequential relief the plaintiff is not entitled to ask for temporary injunction against the defendants restraining them from interfering the with plaintiffs alleged possession of the suit land is generally applicable to a case where a suit for title relating to immoveable property is filed and consequential prayer ought to have been made, but has not been made, and an injunction is sought for. Normally this male is to be observed, but it cannot be taken as an absolute rule, because if the suit is otherwise maintainable, and if it is found that the defendant without being in possession, wants to disturb the possession, the Court cannot be powerless to grant temporary injunction in an appropriate case. The order granting injunction must be a speaking order — Code Civil Procedure, 1908 (V of 1908),Or. XXXIXR.2 Ramani Marak Vs. Jamini Marak, 1BLD (AD) 57 ....View Full Judgment

Section 42

Property attached under section 145 or 146 Cr. P. Code is in custodialegis—Suit for declaration of title without a prayer for recovery of possession in respect of such property is competent — Civil Court competent to appoint receiver in such suit—Code of Civil Procedure, 1908 (V of 1908), Or. XL. R.1; — Code of Criminal Procedure, 1898 (V of 1898),Ss. 145 and 146. Jogendra Kumar Dutta Vs. Nur Mohainniad and others, 1 BLD (AD) 248 ....View Full Judgment

Section 42

Court-fees—Property attached under section 145 Cr. P. Code and receiver appointed — Suit for declaration that plaintiff was in possession tilll taking over of possession by the receiver and that he was entitled to get back possession—Possession of receiver is equivalent to possession by the true owner
—Payment of advalorem court fees is not required — Court-Fees Act, 1870 (VII of 1870), S. 7(IV)(C), 8C and Art. 17(iii) of Sch. II — Code of Criniinal Procedure, 1898 (V of 1898) S. 145. Miah A.M. Noor Vs. Abu Naser Ahmed, 2BLD(AD)97 ....View Full Judgment

Section 42

Adverse possession — Question of giving the benefit of adverse possession in favour of the plaintiffs when the plea of adverse possession can be taken by the defendant in a suit— The plaintiffs claim is against the real owner on the basis of bainapatra and they were possessing the land for more than the statutory period adversely against him and have perfected their title by such possession against him and not against the defendants
Plaintiffs have not derived title against the defendants by adverse possession but against the real owner — The defendant cannot plead point of limitation as the defendant was not in physical possession — Though the plaintiffs could not prove their bainapatra their physical possession had tilted in their favour against the true owner and the suit was therefore rightly decreed — Limitation Act, 1908 (IX of 1908), Article 144. Md. Ashraf Au and another Vs. Fatique Chandra Saha and others, 3BLD (AD) 315 ....View Full Judgment

Section 42

Declaratory suit — Declaration as to unknown parentage and eligibility as Mutwalli — The suit was misconceived and on plaintiffs own showing such declaration that Khorshed is of unknown parentage cannot be made as that is contrary to law - Nor the second prayer can be allowed which calls for objective determination of fact by the statutory functionary and as such the plaintiff has to be non-suited. Khoreshed Alam alias Shah A lain Vs. Amir Sultan Ali Hyder and anot her, 5 BLD (AD) 121 ....View Full Judgment

Section 42

Amendment of plaint Whether the prayer for declaration that the deed of partition is void, fraudulent and illegal can be amended by substituting prayer for cancellation of the deed of partition — Since the relief prayed for in the amendment petition appears to follow from the declaration prayed for in the plaint the contention that there was question of limitation does not appear to be acc ceptable — If the Court after taking evidence comes to hold that certain document is null and void being fraudulent, there is no reason why it cannot order its cancellation after granting the said declaration — Cancellation of a document seems to be a consequence of the declaration of the deed as null and void — Code of Civil Procedure, 1908 (V of 1908), Order IV Rule 17. Jarina Khatun and others Vs. Pulin Chandra Da and others, 5BLD (AD)253 ....View Full Judgment

Sections 53 and 54

It was the case of the defendants that their predecessor took settlement of the land of plot Nos. 3/4381 and 3/4382. In that state of the matter, it is clear that defendants have no claim in respect of the land of Plot Nos. 3/3315, 3/3317 and 3/3319 which are the plots in suit. In the background of the said fact, the High Court Division as well as the trial Court were quite correct in decreeing the suit which was for a decree for permanent injunction. Alauddin (Md) vs Abdul Hakim 12 BLC (AD) 212. ....View Full Judgment

Section 53

Contract—Time-limit made the essence of contract—Responsibility of which party is carrying out the contract in time.
When time is made the essence of the contract under which parties thereto agree mutually to undertake certain obligations, it would be necessary to find whose failure to carry out his obligations within the time mentioned in the contract the same could not be performed.
It is necessary to find whose unwillingness to perform his part of the obligation under the contract eventually led to the non-performance of the contract. In a suit for specific performance of the contract which makes time the essence of the contract, the plaintiff must succeed if his readiness and willingness to perform the obligations undertaken by him are proved.
Ram Chandra Das vs Md Khalilur Rahman 37 DLR (AD) 21. ....View Full Judgment

Section 53

Time gap between the date of execution of sale deed and the date of decree being very wide the defaulting party ordered to pay additional sum besides the consideration amount—Contract once entered into must be fulfilled. Ram Chandra Das vs Md Khalilur Rahman 37 DLR (AD) 21. ....View Full Judgment

Sections 53 & 54

Permanent injunction­Its scope in a dispute over landed property—In a simple suit for permanent injunction with regard to a disputed landed property the relief is available to a person who is in possession. The Court may enquire incidentally into the respective claims of the parties to the suit for determining whether the plaintiff is in possession of the disputed property and entitled to the specific relief of permanent injunction. Rafizuddin Ahmed vs Mongla Barman 43 DLR (AD) 215. ....View Full Judgment

Section 54

Permanent injunction may be granted on establishment of Primafacie title and exclusive possession—
Unless the plaintiff succeeds in establishing his primafacie title to and exclusive possession in the suit land he is not entitled to get a decree for permanent injunction. When the suit land is unspecified and the plaintiff could not establish his exclusive possession therein no injunction can be granted. Habibullah (Md.) Vs. Sher AH Khan and others 11 MLR (2006) (AD) 1. ....View Full Judgment

Section 54

Suit for permanent injunction is maintainable when the plaintiff is in exclusive possession of the suit land—
In a suit for permanent injunction the plaintiff has to prove that he is in exclusive possession of the suit land. Question of title can incidentally be gone into. Sultan Ahmed and others Vs. Md. Monsur All and another-13 MLR (2008) (AD) 359. ....View Full Judgment

Section 54

Injunction can not be granted on the seeking of the plaintiff when he has no legal character as to title and possession of the suit property—
The period of lease having been expired the plaintiff has no legal character as to the title and possession of the suit fishery and as such he is not entitled to get any injunction against the Government restraining it from leasing out the suit fishery by auction. The possession of the plaintiff in the suit fishery is the possession of a trespasser which can not be protected under any law. Dewan Shamsul Abedin, Mutwali of Dewan Aftebur Reza Chowdhury Waqf Estate Vs. Government of Bangladesh and others 13 MLR (2008) (AD) 163. ....View Full Judgment

Section 54

Non consideration of the vital piece of evidence as to injunction granted by the Civil Court—in the face of such an order of injunction no criminal Court can accept beyond reasonable doubt the claim of possession made on oral and other evidence. Samiruddin Ahmed Vs. State 41 DLR (AD) 129. ....View Full Judgment

Section 54

In a suit for permanent injunction the Court need not enter into disputed title except to the extent that it would help the Court in finding which of the parties have prima facie title and exclusive possession. Jobayer Hossain and ors vs Noor Hafez and another 56 DLR (AD) 22. ....View Full Judgment

Section 54

—Circumstances when perpetual relief is granted. Perpetual injunction is granted as provided under section 54.
It lays down that an injunction may be granted to prevent the breach of an obligation in favour of the applicant, whether expressly or by implication, provided there exists no measure for ascertaining the actual damage or likely to be caused, by threat of the defendants and where such invasion or threat is such that pecuniary compensation would not afford adequate relief. M/S. Hossain Ahmed Vs. HD Hossain, (1980)32 DLR (AD) 223. ....View Full Judgment

Section 54

Permanent Injunction—the learned Munsif on consideration of the evidence on record found that the plaintiff was in exclusive possession of the disputed land and neither the defendants nor their vendors had any right to or possession in any portion thereof by virtue of their alleged purchase. The trial court further discarded the evidence of the defendants with proper reasonings. Accordingly he decreed the suit—Lower appellate court reversed the decision of the trial court.
Held : The High Court Division noticed that the lower appellate court while reversing the decision of the trial court did not apply its judicial mind to a consideration of the whole of the evidence in the case. The lower appellate court did neither consider all the material evidence taken into consideration by the trial court in their true perspective nor did it advert to all its reasoning. In the circumstances the High Court Division set aside the judgment of the lower appellate court and restored that of the trial court. We do not find any good ground to differ from the view taken in the said judgment of the High Court Division. [Para-9] Md. Shamsuzzaman Khan & Ors Vs. Han Mondal & Ors. 4 BLT (AD)- 173 ....View Full Judgment

Section 54

Permanent injunction—Whether question of title or possession is to be considered in such a suit—Failure to prove title by the plaintiff in a suit for permanent injunction cannot disentitle him to a decree for permanent injunction if he can prove his possession. Manindra Nath Sen Sarma Vs. Bangladesh, 4BLD (AD) 285 ....View Full Judgment

Sections 54 and 55

Perpetual injunction—Construction of building without leaving 4 feet side space as provided under Building Construction Rules — Whether for such violation perpetual and mandatory injunction or compensation is to be granted —- That rain water may cause trouble and fall on the land of the plaintiff because of the elevation of the defendants multistoried building cannot be overruled — This inconvenience shows that the injury was not great — So instead of granting perpetual or mandatory injunction compensation was granted — Building Construction Rules, 1953, Rules 3 and 4. Beguin Sufia Khatoon and others, Vs. Abdul Hakinz Khan and another, 7BLD (AD)190 ....View Full Judgment

Section 54

Whether a party acquired valid title in the suit property by dint of registered documents cannot be a prime issue in a suit for permanent injunction. In such a suit the question of possession is the main consideration before the Court. Abul Hashem Dhali and others Vs. Md. Idris Ban and others, 15 BLD(AD) 106 ....View Full Judgment

Section 55

Suit for permanent injunction is not maintainable where the plaintiff is an yearly lessee in Government Khas land—
Suit instituted by the plaintiff against the Government for permanent injunction, in respect of the Government Khas land where he is an yearly lessee is not maintainable. Government of Bangladesh represented by the Deputy Commissioner, Patuakhali Vs. Md. Nurul Haque 'and others 12 MLR (2007) (AD) 257. ....View Full Judgment

Section 55

Temporary injunction in Mandatory form— Code of Civil Procedure, 1908— Section 151— Temporary injunction in mandatory nature can be granted in appropriate case— Partition suit— Possession of a co-sharer in specific portion of land can be maintained in a partition suit—
It is well settled that a co-sharer in possession of specific portion of suit land in a partition suit can maintain his possession. In the instant suit the trial court passed an order of status-quo against the defendant not to change the nature of the suit land who by violating the order of status-quo made construction. The trial court upon prayer of the plaintiff and upon consideration of the reports of Advocate Commissioners passed order of temporary injunction in mandatory nature directing the defendant to demolish the construction and restore the suit land to its original position. The High Court Division and the Appellate Division upheld the impugned order as one deemed to have been passed under section 151 C.P.C. Azizur Rahman Chowdhury (Md.) Vs. Touhiduddin Chowdhury and others 15 MLR (2010) (AD) 160. ....View Full Judgment

Section 55

The High Court Division committed an error in interfering with the order of mandatory injuction in spite of the fact that the respondents have made cons­truction and changed the nature and character of the suit land in utter violation of the Court's Order of status quo. Azizur Rahman Chowdhury vs Tauhiduddin Chowdhury 16 BLC (AD) 26. ....View Full Judgment

Section 55

read with
C.P.C.
Section 151 and Order 39 rule 2(3)
Disobedience of an order of injunction or status-quo is a civil contempt. Disobedience to an order of injunction or status-quo made under Rule 1 or Rule 2 by doing something for a party’s unadvantage entitles a Court under its inherent power to bring back that party to a position where it originally stood as if the order passed have not been contravened . Even if it is assumed that the Court made such order of restitution or restoration of the status-quo ante as a consequence of the finding of guilt of disobedience, if there can be such a power , there can always be ancillary to it the power to make an interim order to the said effect subject to the final determination of the case. There are cases where a party raises constructions in violation of interim injunction and obstructs the right of way , the Court can order for demolishing the construction under section 151 C.P.C. In this case though the plaintiff-appellant filed the application under section 55 of the Specific Relief Act, the trial Court treated it as one under section 151 C.P.C. and rightly made the order of restoration of the status-quo ante as a consequence of the finding of guilt of disobedience.
“This principle is in consonance with fair administration of justice and this power of making an order of mandatory injunction on an interlocutory application may be exercised irrespective of the merits of the main case as it is one of the main concerns of the Court of law to see that no one dares to interfere with the course of justice by presenting the Court with a fait accompli” . Though this sort of dispute relates to private rights of the contending parties to the litigation but the higher courts termed it a new character and it turned into a matter concerning public policy relating to administration of justice. …Azizur Rahman Chowdhury(Md.) =VS= Tauhiduddin Chowdhury, (Civil), 2020 (1) [8 LM (AD) 29] ....View Full Judgment

Section 55

Where the use of property is permissive and not as of right no case is made out for injunction far less a question of mandatory injunction—The obligation referred to in this section means a legal obligation and not a moral obligation. Aftabuddin vs Mahfuzus Sobhan 42 DLR (AD) 78. ....View Full Judgment

Section 55

An order of mandatory injunction cannot be sustained if the subject matter of the dispute is not sufficiently specified. In cases of injunctions the Court must always be very cautious in specifying the property so that on account of vagueness disputes do not erupt. Fazlul Karim Chowdhury (Md) and others vs Lutfunnessa Begum and others 50 DLR (AD) 188. ....View Full Judgment

Section 55 and Clause (e) of Section 56

Bar to the decree for mandatory injunction— an injunction cannot be granted to prevent the breach of a contract, the performance of which would not be specifically enforced. Thus courts ordering the employer to retain the employee in his service do not restrain breaches of contract for personal service. Speaking generally, it is the right of the employer to discharge his employee, and that of the employee to quit his employer’s service, subject to the right to pay damages for breach of the contract, Court cannot compel a person, against his will, to employ or serve another, notwithstanding the contract of service. A mandatory injunction cannot be granted for such purposes. Rupali Bank Limited Vs. Haji Md. Arab Ali & Ors. 11 BLT (AD)-61 ....View Full Judgment

Section 55

Injunction —. Only breach of a legal obligation calls for injunction — Where the use of some property is permissive and not as of right no case is made out for injunction, far less a case of mandatory injunction — The obligation referred to in the relevant law means a legal obligation and not a moral obligation. Mr. Aftabuddin Vs. Mr. Mahfuzur Sobhan and others, 10BLD (AD) 47 ....View Full Judgment

Section 56(e)

Bars granting of mandatory injunction againt breach of contract—
Rupali Bank after denationalisation and its incorporation under the Companies Act, 1994 has become a private Bank and as such the relationship between its employer and employee is that of master and servant. As in a suit for declaration against dismissal from service no mandatory injunction can be granted, such suit is not maintainable. An employer can not be compelled to retain its employee whom it is not willing to retain. However the plaintiff may get compensation as per service regulation. Jahiruddin (Md.) Vs. Rupali Bank Ltd. and others 13 MLR (2008) (AD) 47. ....View Full Judgment

Section 56

Permanent Injunction from judgments pronounced by the trial Court and the appellate Court show that these Courts did not record any finding that the plaintiffs are in exclusive possession of a specific and separate share of the suit plot well demarcated by boundaries so as to entitle the plaintiffs to retain their possession against their co—sharers till partition by metes and bounds. Abdus Samad Akand and others vs Abdul Halim Miji and others 50 DLR (AD) 6. ....View Full Judgment

Section 56(e)

A civil Court cannot stay a criminal prosecution by preventing the proceedings from continuing by an injunction. Jobeda Khatun vs Mamtaz Begum 45 DLR (AD) 31. ....View Full Judgment

Section 56

—Even if section 56 does not limit court’s inherent power to grant temporary injunction against Government department, Court must not do so unless compelling reasons demand that course. Shahzada Muhammad Umar Beg Vs. Sultan Mahmood Khan (1970) 22 DLR (SC) 41. ....View Full Judgment

Section 56(d)(f)

Injunction cannot be granted when it will interfere with the carrying on of public duties.
Section 56, clauses (d) and (f) provide that no injunction can be granted to interfere with the public duties of any Department of the Government or for that matter to prevent the breach of a contract the performance of which would not be specifically enforced.
Contract, when can be validly revoked—The respondent’s tenders were not accepted. In others words, proposal made by them for supplying the labour and transport was not accepted. Therefore, no jural relationship was crcated.
M/s. Hossain Ahmed Vs. M/s. HD Hossain & Brothers (1980) 32 DLR (AD) 223. ....View Full Judgment