read with Specific Relief Act, 1877 Section-42
It appears that the learned Subordinate Judge decreed the Suit on contest against defendant Ns.52, 56, 107 and 26 with costs and against the defendant Nos.120, 121, 127, l0-30 on contest without costs and exparte against rest declaring that the decree passed in Title Suit No.49 of 1958 (18/56) dated 6.12.1958 as fraudulent and not binding upon the plaintiffs. The appeal was dismissed but the High Court Division while maintaining the same found that as Abul Kasham Hawlader was not present in the country during the pendency of the previous suit and the Miscellaneous proceeding thereto and hence the impugned judgment and decree is not binding upon him as the same was fraudulently obtained-Held; A decree in a suit declaring that the decree is passed in Title Suit No.49 of 1958 dated 6.12.1958 is fraudulent and not binding upon the plaintiff is not a devisable one and as such aforesaid finding of the High Court Division is unwarranted because the decree against other plaintiffs that has been maintained was opposed to law.
Shamsun Nahar Begum & Org. Vs. Zohora Begum & Ors 13 BLT (AD)231 ....View Full Judgment

"District", "District Court" & 'Judge', In section 2 of the Code of Civil Procedure, 'District", "District Court", 'Judge' are defined as follows:
"District" means the limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a "District Court" and includes the local limits of the ordinary original civil jurisdiction of the High Court Division).
"Judge" is defined in the following language:
"Judge" means the presiding officer of a Civil Court"
AKM Ruhul Amin vs District Judge 38 DLR (AD) 172. ....View Full Judgment

After passing of the final decree in a partition suit it is effective between the admitted co-sharers and for the purpose of a pre­emption proceeding where the transfer is made by a co-sharer to a stranger, this question of execution of the final decree between the co­sharers is not relevant and necessary.
Shafiuddin Chowdhury (Md) vs Md Abdul Karim and others 52 DLR (AD) 41. ....View Full Judgment

Appeal -Effect of its disposal- ‘Appeal’ which has not been defined in the Code, is meant to be an application by an aggrieved party asking an Appellate Court to set aside, modify or revise a decision of a subordinate Court-an 'appeal' even if irregular, incompetent or time-barred is nonetheless an appeal-the order of dismissal of a memorandum of appeal as time-barred comes within the deeming provision of section 2(2) of the Code, because by such an order the rights of parties with regard to matters in dispute are finally determined.
Abdul Mannan vs Jobeda Khatun 44 DLR (AD) 37. ....View Full Judgment

The Code of Civil Procedure, 1908
Sections 3, 9 and 115(1) read with
The Local Government (Pourashava) Ain, 2009
Election Tribunal– Election matter dispute–
The Election Appellate Tribunals and Election Tribunals are not Court and they specially constituted as Tribunals for adjudication of the election disputes by an special statute, namely, the Local Government (Pourashava) Ain, 2009.
The Tribunals are meant to deal with only specific class of cases. They do not and cannot exercise powers vested in a civil court for decision of civil disputes in general within the meaning of section 9 of the Code of Civil Procedure. Such Tribunals cannot therefore be termed as Civil Courts within the meaning of sections 3, 9 and 115 of the Code.
Since the Election Appellate Tribunal is not a court, we are of the view that the High Court Division committed error of law in entertaining the revisional applications exercising its revisional, jurisdiction under section 115(1) of the Code of Civil Procedure. Both the petitions are disposed of. The judgment and order of the High Court Division are hereby set aside. …Rabiul Islam (Md) =VS= Asadul Haque (Md), (Civil), 2019 (2) [7 LM (AD) 363] ....View Full Judgment

The Full Bench considering sections 6, 22, 24 and Order XLVIII Rule 1 of the Code of Civil Procedure, section 8 of the Suit Valuation Act, 1887 as amended by the Civil Courts (Amendment) Act, 2001, sections 8,11,19 and 21 of the Civil Courts Act, 1887 and other relevant provisions of law has come to the conclusion that the District Judge has no jurisdiction to hear the revisional application against the order of the Joint District Judge in a suit the valuation of which is above Tk. 5,00,000 (Taka five lac) and in such matters the revisional application shall lie before the High Court Division under section 115(1) of the Code of Civil Procedure.
Bangladesh vs AHM Khurshed Ali 13 BLC (AD) 114. ....View Full Judgment

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. ....View Full Judgment

Suits which a Court is barred to try-Under section 9 of the Code of Civil Procedure any Civil Court has jurisdiction, "to try all suits of a civil nature excepting suits of which their cognisance is either expressly or impliedly barred".
Nur Muhammad vs Mainuddin 39 DLR (AD) 1. ....View Full Judgment

Assistant Sessions Judge deemed to be Additional Sessions Judge — not to be so deemed for all purposes—
An Assistant Sessions Judge specially empowered and deemed to be an Additional Sessions Judge shall have limited power to try Sessions cases and pass higher sentence except a sentence of death. An Assistant Sessions Judge deemed to be appointed as Additional Sessions Judge can not hear appeals, revisions, reference and reviews and as such those are to be heard by the Sessions Judge or Additional Sessions Judge as the case may be under section 409 of the Code of Criminal Procedure, 1898.
Abul Kashem Vs. The State 43 DLR (AD) 77. ....View Full Judgment

Decision of the civil Court with regard to the nature of the property and also the plaintiffs claim thereto is not only binding upon the present petitioner but also upon the Court of Settlement.
Moinuddin (Md) vs The People's Republic of Bangladesh, represented by the Secretary Ministry of Works 48 DLR (AD) 56. ....View Full Judgment

The provision of Section 10 of the Code of Civil Procedure does not apply to the simultaneous hearing of a later and earlier suit. after consolidation of the two. Its intenment is not to take away the inherent power of the court to consolidate suits and hear them simultaneously for the ends of justice.
Most. Shahida Khatun Vs. Abdul Malek Howlader & Ors. 9 BLT (AD)-148 ....View Full Judgment

An order for simultaneously hearing and disposal of two suits-should not be passed as a matter of course.
Bangladesh Shilpa Bank vs Bangladesh Hotels Ltd 38 DLR (AD) 70. ....View Full Judgment

In the suit the plaintiff has raised the question that the earlier decree was obtained on fraud. But when the District Judge, Sylhet who has allowed the appeal filed by the defendant and sent back the suit on remand by was of a judicial order. The question of fraud apparently has got no substance court can not make fraud. Raising question of fraud in the matter practically plaintiff raised his finger upon court, which is ominous and not acceptable.
The Appellate Division observed that the High Court Division found that although it was contended that the decree in the earlier suit was obtained by practising fraud, the record spoke that the earlier decree dated 04.07.1980 in Title Suit No. 170 of 1977 was challenged by the plaintiffs (they were defendants in the earlier suit) by filing Title Appeal No. 233 of 1980 before the District Judge, Sylhet and the appeal was allowed and the suit was sent on remand with a cost of Taka 300 giving the defendants opportunity to file written statement to contest the suit. But the defendants neither paid the cost nor filed the written statement and eventually the said decree was affirmed by the judgment and decree dated 19.10.l981. The High Court Division further held that
“In the suit the plaintiff has raised the question that the earlier decree was obtained on fraud. But when the District Judge, Sylhet who has allowed the appeal filed by the defendant and sent back the suit on remand by was of a judicial order. The question of fraud apparently has got no substance court can not make fraud. Raising question of fraud in the matter practically plaintiff raised his finger upon court, which is ominous and not acceptable.
Usa Rani Chakraborty and others -Vs.-Narendra Kumar Das and others (Civil) 13 ALR (AD) 176-178
Section 11 —Meaning of 'any matter'
'any matter' used in section 11 of the Code of Civil Procedure means matter arising out of the same cause of action. Dr. Malik Mehdi Kabir:
Md. Shahidullah Bhuiyan and others: -Vs.- Rabitat-Al-Alam-Al-Islami and others: (Civil) 11 ALR (AD) 68-78 ....View Full Judgment

If the adverse finding is actually the decision of the suit and forms a fundamental part of the decree then it will operate as res judicata, if made incidentally. Sachindra Lal Das vs Hriday Ranjan Das 40 DLR (AD) 56. ....View Full Judgment

What is res judicata? An adverse finding in any judgment of a suit dismissed, particularly when it is a conclusive decision in the suit, can be challenged in higher forums. Decision in the Redemption suits was on the same issue as in subsequent suit. Sachindra Lal Das vs Hriday Ranjan Das 40 DLR (AD) 56. ....View Full Judgment

It may be mentioned that a decision may be Res judicata against co­defendants as well if there was conflict between them as held by the Privy Council in Munni Bibi vs Tirloki Nath, 53 ILR PC 103 and Kishum Prasad vs Durga Prasad, AIR 1931 PC 281 on this analogy also the decision against Chadra Bala, in Ext B, will operate as res judicata. Sachindra Lal Das vs Hriday Ranjan Das 40 DLR (AD) 56. ....View Full Judgment

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. ....View Full Judgment

Res judicata -Constructive res judicata- Two suits, the earlier suit was for declaration of title and the latter suit for declaration of title and recovery of possession- the latter suit is hit by section 11, Explanation V CPC.
Hafizuddin Sarker and Lakjan Bewa and others vs Bangladesh and ors 42 DLR (AD) 57. ....View Full Judgment

It is well settled that where a plaint cannot be rejected under Order VII, rule 11 Code of Civil Procedure the court may invoke its inherent jurisdiction and reject the plaint taking recourse to section 151 of the Code of Civil Procedure.
Abdul Jalil and others vs Islamic Bank Bangladesh Ltd and others 53 DLR (AD) 12 ....View Full Judgment

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.) lid. Vs. British Airways PLC. 17 BLD (AD) 249. ....View Full Judgment

read with
Arbitration Act, 1940
Sections 31(2) and (3) —Territorial jurisdiction to entertain the Arbitration suit.
The Appellate Division held that in which District the award was given by the Arbitrator, any case against the said award should be filed under the same District Miscellaneous Case filed in another District is not maintainable.
Secretary, Bangladesh Agricultural Development Corporation (BADC), Dhaka -Vs.- M/S. M. Islam and Co. and others (Civil) 8 ALR (AD) 291-292 ....View Full Judgment

In an application for rejection of the plaint on the ground of non-disclosure of cause of action the court need not dissect the plaintiff's case part by part, if a part of the cause of action arises within its jurisdiction. Guiness Peat (Trading) Ltd vs Fazlur Rahman 44 DLR (AD) 242. ....View Full Judgment

Cause of action may be defined as every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right for the judgment of the Court.
Amir Hossain Khairati vs Abdul Aziz Bepari and others 47 DLR (AD) 106. ....View Full Judgment

Jurisdiction to entertain suit-A corporation can be said to carry on business at the place where it has a branch only in respect of a cause of action which arises wholly or in part at such place. If no part of the cause of action accrues at the place of the branch office the mere fact of the corporation having a branch office at the place will not give the court jurisdiction to entertain a suit.
Kh Mahatabuddin Ahmed vs Matin Tea & Trading Company 46 DLR (AD) 92. ....View Full Judgment

Jurisdiction-When the Court rejects or refuses to reject a plaint it does so in exercise of the jurisdiction vested in it. Even where clause (d) of Order VII rule 11 of the Code is invoked the court is entitled to examine whether the suit is barred by law.
Guiness Peat (Trading) Ltd vs Fazlur Rahman 44 DLR (AD) 242. ....View Full Judgment

No objection as to the jurisdiction shall be allowed unless such objection was taken at earliest possible opportunity. But 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 the order is a nullity.
Supreme Court of Bangladesh Vs. Md. Shafiuddin. 10BLT (AD)-50 ....View Full Judgment

The policy of the legislature has been to treat objections as to jurisdiction both territorial or pecuniary as purely technical for the reason that section 21 of the Code of Civil Procedure provides that no objection as to the place of suing shall be allowed unless such objection was taken at the earliest stage but objection not having been taken would not vitiate the trial. Similarly objection as to pecuniary jurisdiction which is for the purpose of Court fee and availing a forum of appeal / revision is mostly of formal nature and the Court with higher pecuniary jurisdiction could decide a suit of lower pecuniary value and would not render the decree void. It is also desirable that the grievance of the plaintiff would be resolved in a single suit.
Md. Shamsul Haque Vs. Md. Salimullah & Ors 14 BLT (AD)07 ....View Full Judgment

Transfer the suit from one district to another district–
The suit is pending in the Court of Joint District Judge, 3rd Court Barisal when Patuakhali District was under the judgeship of Barisal. Be that as it may, since the petitioner wanted to transfer the suit from one district to another district, the only forum available to him was to file an application before the High Court Division under section 24 of the Code, instead, he filed successive applications before the trial Court, the District Judge and the High Court Division under the wrong provisions of law. Therefore, the High Court Division rightly discharged the Rule and as such, the impugned judgment and order does not call for any interference by this Court. However, if so advised, the petitioner can move the High Court Division afresh under section 24 of the Code. …Anwar Hossain(Md) =VS= Lutfar Nahar, (Civil), 2019 (2) [7 LM (AD) 189] ....View Full Judgment

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 ....View Full Judgment

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. ....View Full Judgment

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 assumption will be a ruinous invitation to a floodgate which we have no intention to open. As yet the petitioner has not given any hard evidence of the trial Court's fear or favour of and for the District Judge concerned. The High Court Division rightly di Shahida Khatun vs Abdul 'Malek Howlader and others 50 DLR (AD) 147. ....View Full Judgment

The Appellate Division held that since the respondents are obliged to pay the loan taken from the Bank for utilizing the amount in the contract work at the rate of 18% compound interest, ends of justice would be best served if the appellant is directed to pay interest at the rate of 18% in respect of the decreetal amount till realization. The High Court Division also found that the interest calculated and awarded by the trial Court is maintainable and there is no evidence to show that awarding or calculating of such interest is against any agreement or against any interest on record, the appeal is dismissed. .....D.C.C =VS= M/s. Abdul Kader (Pvt.) Ltd & others, (Civil), 2016-[1 LM (AD) 418] ....View Full Judgment

Section 47B of the Insurance Act, 1938 as amended by Ordinance XXV of l 970 provides for granting of interest on claims. This provision displaces the discretion of the Court conferred by section 34 of the Code of Civil Procedure in the matter of granting interest. Hence the plaintiff-appellant is entitled to the statutory interest under section 4 7B of the Insurance Act. The Court has no discretion in the matter.
Chalna Marine Products Ltd vs Reliance Insurance Ltd and others 50 DLR (AD) 100. ....View Full Judgment

Realisation of interest pendente lite - Decree is silent about the award of interest-Sub-section (1) expostulates the different stages where interest can be awarded by the Court-But no interest can be claimed if the interest is not granted in the decree.
The contention of the appellant that "any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused" as laid down in section 11, Explanation 5, CPC, is not acceptable in this case as plaintiff undisputedly made a specific prayer for interest from the date of the suit to which he was entitled as found by the Court.
Sonali Bank vs Mahbubul Amin 42 DLR (AD) 107. ....View Full Judgment

The Court justly discharged the Rule with the compensatory cost considering the conduct of the petitioner as vexatious aimed at delaying the execution case.
Abdur Rahman (Md) v.r Md Iqbal Ahmed and others 49 DLR (AD) 142. ....View Full Judgment

For success in a suit for declaration of title the plaintiff must prove his title and possession in the suit property.
In view of the fact that plaintiffs are out of possession in the suit property , the suit for a simple declaration of title without a prayer for recovery of khas possession is not maintainable in law.
Md. Abdul Matin Kazi and others -Vs.-Government of Bangladesh 3 ALR(2014)(1)(AD) 70 ....View Full Judgment

Stay of Execution
Admitted position is that in pursuance to the decree passed in Title Suit No. 68 of 1990 which was a suit for specific performance of contract, the plaintiff got the kabala executed and registered through Court and it appears that possession was also obtained in most of the suit land excepting of course a very small fraction of the land which is in possession of some unauthorised persons. The High Court Division found that since the decree has already been executed in Execution Case No. 18 of 1994 and the kabala has been registered on 20.10.1994 there is nothing to stay all further proceedings of the aforesaid execution case. The petitioner filed Title Suit No. 244 of 1994 for a declaration that the ex parte decree passed in Title Suit No. 68 of 1990 was illegal and void which has nothing to do with the aforesaid execution proceeding and when the decree obtained by respondent No. 1 has already been executed, we are of the view that the
High Court Division has not committed any wrong or illegality in refusing to stay further proceedings of aforesaid Execution Case No. 18 of 1994. [Para-4]
Tapan Kumer Basak Vs. Gouranga Ch. Tarafdar & Ors. 7 BLT (AD)-310. ....View Full Judgment

The decree-holder obtained the decree on 12-8-59 and the decree-holder’s son filed the latest Execution case more than 18 years after the decree was obtained — Held: The latest Execution Case No. 5 of 1977 filed on 26-8-77 is barred by section 48 of the Code of Civil Procedure and that the High Court Division erred in law in holding that section 48 C.P.C. has no manner of application in this case. [Para – 13]
A. D.C. Pabna Vs. Md. Abdul Halim Mia 4 BLT (AD)-90. ....View Full Judgment

An application for execution has to satisfy first Article 182 of the Limitation Act being the earliest period prescribed and then also section 48 CPC which prescribed the maximum period of limitation. If the execution petition is hit by any of the two provisions it is to fail. ADC (Revenue).
Pabna vs Md Abdul Halim Mia 48 DLR (AD) 141. ....View Full Judgment

Decree for delivery of possession of an immovable property must specify the property to facilitate execution. The executing Court can neither go beyond nor behind the decree to supply the specification which is not there in the decree itself, because that would amount to usurping the jurisdiction of the trial Court.
Sahera Khatun and others vs Abdul Gaffar @Abdul Gafar and others 55 DLR (AD) 79. ....View Full Judgment

Applies against arrest and detention of woman in civil prison—
Since the application of section 56 of the Code of Civil Procedure has not been excluded by section 6(ka) of the Artha Rin Adalat Ain,.1990, the prohibition againt arrest and detention of woman in civil prison in execution of decree of Artha Rin Adalat shall apply. Hazera Begum Vs. Artha Rin Adalat and others 12 MLR (2007) (AD) 281. ....View Full Judgment

The said provision applies where the plaintiff tries to enforce his secret title as against the certificated purchaser. It has no application when the benamdar himself or his successor does not lay any claim under the sale certificate.
Sananda Barua & Anr. Vs. Pramatosh Barua & Ors. 9BLT (AD)-269 ....View Full Judgment

Appellate Division held that there is no doubt that in case of a decree for foreclosure, be it the High Court Division, or any other superior Court, it has no power to issue certificate to alienate the mortgaged property for enabling the judgment-debtor to raise money for payment of the total decretal amount by private sale without the consent of the decree-holder.
Agrani Bank -Vs.- Anwarul Bashir Khan 5 ALR (AD)2015(1) 99 ....View Full Judgment

The primary allegation Is in fact one, which affects the plaintiff and this unlawful action of the defendant causes private nuisance to the plaintiff. Sub-section (2) of section 91 of the Code can be invoked in the case of private nuisance. [Para-7]
Wahid Mia Vs. Dr. Rafiqul Islam & Ors 7 BLT (AD)-26 ....View Full Judgment

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. ....View Full Judgment

This section is meant for trust properties which is governed by Trust Act and not applicable to charitable societies registered under the Societies Registration Act.
BRAC and others vs Professor Mozajfar Ahmed and others 54 DLR (AD) 36. ....View Full Judgment

Appeal-Effect of its disposal -'Appeal' which has not been defined in the Code, is meant to be an application by an aggrieved party asking an appellate Court to set aside, modify or revise a decision of a subordinate court-an 'appeal' even if irregular, incompetent or time-barred is nonetheless an appeal-the order of dismissal of a memorandum of appeal as time-barred comes within the deeming provision of section 2(2) of the Code, because by such an order the rights of parties with regard to matters in dispute are finally determined.
Abdul Mannan vs Jobeda Khatun 44 DLR (AD) 37. ....View Full Judgment

— Consent Decree-Limitation and Estoppel­ - Plaintiffs elected to give up all the reliefs prayed for in the suit and to limit their prayer, by amendment, to a declaration that they are the sole legal heirs of the loanee. On understanding with the plaintiffs, the defendants neither opposed the amendment nor advanced any argument. Since the plaintiffs elected to relinquish all reliefs except the one for saving the suit from limitation and to secure some benefits for themselves, they are bound by the principle of estoppel and cannot be allowed to argue for the same reliefs which they had voluntarily abandoned. The decree obtained by them being based on understanding and consent of the parties, they are not permitted to take any appeal from such consent decree. On the same principle, the defendant is also barred from preferring any appeal from the High Court Division's judgment. Parveen Babu vs. BHBFC 42 DLR (AD) 234. ....View Full Judgment

Amendment of decree—When it can be done 7 —The Court can always amend the decree if there is a mistake that had crept in for bringing the decree in conformity with the judgment.
Ismail Ullah, being dead his heirs Bazidullah and others Vs. Sukumar Chandra Das, 6 BLD (AD) 251 ....View Full Judgment

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. ....View Full Judgment

Absolute bar on interference by the High Court on findings of facts by the subordinate Court.
The Privy Council emphatically declared under section I 00 of the present Code that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however, gross or inexcusable the error may seem to be; and they added a notice of warning, that no court in India has power to add or enlarge the grounds specified in section 100.
Abdul Mannan Khan vs Bangladesh 38 DLR (AD) 201. ....View Full Judgment

The appellate court reversed the finding of fact on evidence but once it is shown that such reversal has been made without taking notice of the documentary evidence the second appellate Court may reassess the evidence and come to its own finding on this point.
Abdul Latif vs Abdul Malek Kazi 38 DLR (AD) 22. ....View Full Judgment

Interference with the decision of lower appellate Court.
Further, the lower appellate Court made a finding that the plaintiff was out of possession for more than 12 years and consequently, the suit is time-barred. The trial Court's finding as to limitation thus stands reversed. We regret to notice that in spite of the finding as to limitation by the subordinate judge having been allowed to remain, the learned Judge of the High Court Division has found it possible and proper to restore the decree in favour of the plaintiff. We are thus of the view that the learned Judge plainly exceeded his jurisdiction under section 100 CPC and unnecessarily interfered with the decision of the lower appellate Court.
Naimuddin vs AK Biswas 39 DLR (AD) 237. ....View Full Judgment

High Court Division without going into the heart of the matter objected to the finding of the appellate Court. In 38 DLR (AD) 22 it is held that the second appellate Court may reassess the evidence and come to its own finding where the appellate Court reversed the trial Court's finding of fact without taking any notice of a material document on record. It was settled long ago in Najar Chandra Pal vs Sukur Sk AIR 1918 PC 92 that the High Court should not interfere with the findings of fact on the ground that upon the document and evidence being placed before the lower court the High Court would have come to a different conclusion.
Sudhir Chandra vs Harimohan Das 39 DLR (AD) 218. ....View Full Judgment

High Court Division's function in Second Appeal-Various decisions discussed. The High Court interfered with that finding and decided issues itself after resorting to section 103 of the Code. In upholding that decision it was held "that the function of the High Court in a second appeal is not the mere correction of error of a legal proposition, or pointing out the true procedure, but also to determine properly, issues of fact after making the correct exposition of law, if such determination is essential for disposal of the appeal. Subject to this narrow jurisdiction of interference, the finding of fact of the first appellate Court is conclusive and binding upon the High Court. "In 35 DLR (AD) 216 this court upheld the High Court Division's interference in second appeal with the lower appellate Court's finding of fact as to a tenancy, arrived at after excluding from its consideration the plaintiffs document of title and a long series of rent­-receipts.
Sudhir Chandra vs Harimohan Das 39 DLR (AD) 218. ....View Full Judgment

If a party has taken an appeal or a revision against an interlocutory order, whether the decision therein can be challenged when an appeal is taken from the decree-If a party is allowed to challenge an order twice over, certain anomalies may arise, and that is why those orders could not be allowed to be challenged, if they had been challenged in the higher Court either in appeal or revision or both.
Yusuf vs Mofzal Ahmed Sowdagar 45 DLR (AD) 178. ....View Full Judgment

Interlocutory Order—Such orders can be challenged in appeal against the decree, but once appeal or revision is filed against such order and a finality reaches, such orders cannot be challenged in appeal against the decree —Position is not altered even though the appeal is dismissed as being barred by limitation.
Md. Yusuf Vs. Mofzal Ahmed Sowdagar, 1 BLD (AD) 456. ....View Full Judgment

ln view of the contentious submissions of the parties, it was the duty of the courts below to send the impugned documents to Handwriting Expert for opinion. Such opinion being not taken by either of the Courts below, the appeal is allowed, impugned judgment and decree are set aside. The First Appeal is remanded to the High Court Division with a direction to hear the appeal afresh after obtaining report from the competent Handwriting Expert as to execution of the documents.
Nurul Huq (Md)@ MN Huq vs Nirmal Chandra Dutta and another 56 DLR (AD) 143. ....View Full Judgment

In view of the provision of section 107(2) of the Code the High Court Division was competent to compare the signature of the defendant in the 'bainapatra' with his available signatures and, as such, was in error in sending back the case for the said purpose to the trial Court.
Aftab Ali (Captain Retired) vs SM Kutubuddin 56 DLR (AD) 117. ....View Full Judgment

There may be cases( s) where right of the parties to the proceeding to send back on remand is dependent on the result of a suit filed earlier still remains pending, the order of remand by the appellate/higher Court made in such a situation cannot be considered unjustified.
Begum Lutfunnessa vs Md Shafiullah and others 55 DLR (AD) 102. ....View Full Judgment

The suit ought not to have been remanded for giving an opportunity to amend the plaint for making out a new case of adverse possession.
Golam Rahman vs Hazera Khatun 47 DLR (AD) 108. ....View Full Judgment

(Power of appellate court)
The Appellate Division is of the view that justice would be best served to both the parties if the appeal is remanded to the Appellate Court of hearing afresh giving chance to the plaintiff to amend the plaint by impleading the necessary party, namely, Roads and Highway and the other necessary parties, if there be and also bringing in hotchpotch the entire property of the khatian. Accordingly, Appellate Division sent the appeal back to the Appellate Court for hearing it afresh. .....Jahed Ali Sardar & others =VS= Malin Chandra Dhali & others, (Civil), 2016-[1 LM (AD) 78] ....View Full Judgment

There is no provision in the Constitution precluding the High Court Division to review its Judgment and order-The Court's inherent power to do justice to the parties before it is accepted one and for that purpose the form in which the Court shall dispense justice is a matter for the Court to resort to.
Serajuddin Ahmed and others vs AKM Saiful Alam and others 56 DLR (AD) 41. ....View Full Judgment

read with
Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Review of a judgment and order- Shebait of a deity had no right to transfer.
The review of a judgment and order is permitted under section 114 and Order XLVII, rule 1 of the Code of Civil Procedure and also under Order XXVI of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988. Order XLVII, rule 1 of the Code of Civil Procedure has mentioned the grounds entertainable for review of any judgment and order of any court and Order XXVI, rule 1 of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988 has provided that this Division can review its judgment or order in a Civil proceeding either of its own motion or on the application of a party to a proceeding on the grounds similar to those mentioned in Order XLVII, rule 1 of the Code of Civil Procedure. Order XLVII, rule 1 of the Code of Civil Procedure permits review of any judgment and order only on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him at the time when the decree was passed or order was made, or on the ground of some mistake or error apparent on the face of the record, or for any other sufficient reason.
Narendra Chandra Das -Vs.- Sree Sree Gopal Bigraha 3 ALR(2014)(1)(AD) 18 ....View Full Judgment

Finding of fact can be interfered with. The crux of the instant case is whether the appellant was born of any legally married wife of Amir Ali and if the answer is in the negative his claim to sonship shall fail straight away, and the acknowledgement of Amir Ali will be of no avail and the presumption as to legitimacy raised by the acknowledgement shall stand rebutted. It is only to rebut this presumption that the suit has been brought. By a concurrent finding the Trial Court and the Lower Appellate Court held that there was no woman like Monowara Begum but she was invented for the purpose of the suit and that Amir had no wife named Monowara Begum.
Khorshed Alam vs Amir Sultan 38 DLR (AD) 133. ....View Full Judgment

Revisional powers-Plea of exceeding jurisdiction by entertaining new facts given in the supplementary affidavit- The supplementary affidavit gave explanation (as to delay in filing the appeal) with further and detailed facts. High Court Division pointed out the omissions made by the District Judge in considering the prayer for condonation of delay and found reasonable explanation therefor. This is within the limits of the court's revisional power.
Mohammad Ali & others vs Circle Officer (Revenue) Dhaka &others 44 DLR (AD) 15. ....View Full Judgment

Permanent Injunction–
It is a well settled legal proposition that the Appellate Court is the last Court of fact and if the Appellate Court comes to a finding of fact on consideration of the evidence on record that cannot be disturbed or reversed by the High Court Division in exercising jurisdiction under section 115(1) of the Code of Civil Procedure, unless it can be shown that the finding of the Appellate Court is perverse or contrary to the evidence on record or based on misreading of the evidence on record or on misconception of law. It is also a settled legal principle that in a suit for permanent injunction title can be looked into incidentally and the prime consideration is whether the plaintiff has got exclusive possession in the suit land. Keeping in view the above settled legal propositions, let us see whether the High Court Division rightly interfered with the judgment and decree of the Appellate Court. .....Karim Khan =VS= Kala Chand, (Civil), 2017 (2)– [3 LM (AD) 236] ....View Full Judgment

Wasiyatnama–
The High Court Division cannot re-assess and sift the evidence and substitute the finding of the Appellate Court by its own. Unfortunately, the High Court Division in complete denial of the said legal principle itself embarked upon to assess the evidence and gave its own finding that there was no wasiyatnama by Kulsum Bibi. Therefore, the right of the plaintiff in the suit property as the daughter of Yakub Ali was not lost and she was entitled to get her share thereto. The High Court Division did not at all say why the finding of fact arrived by the Appellate Court, the last Court of fact, affirming those of the trial Court that Kulsum Bibi bequeathed her property by the wasiyatnama and the same was acted upon by Yakub Ali, her only surviving son, and the beneficiaries of the wasiyatnama are in possession of the respective land pursuant to the dictate of the wasiyatnama was wrong. Therefore, the impugned judgment and order cannot be sustained and that must be set aside. .....Noor Mohammad Howlader (Md.) =VS= Kulsum Begum (Mst.), (Civil), 2018 (2) [5 LM (AD) 363] ....View Full Judgment

When the judgment impugned before the High Court Division was the judgment of reversal, it was its obligation to go through the record and see whether the Appellate Court reversed the decision of the trial Court adverting its findings and reasonings on proper consideration of the evidence.
The Appellate Division has gone through the judgments and decrees of the Courts below and the impugned judgment and order. It frankly speaking, on reading the impugned judgment and order, Appellate Division failed to understand what the High Court Division wanted to say, except that it made the Rule absolute. The entire judgment is absolutely confusing and full of repetition. Further when the judgment impugned before the High Court Division was the judgment of reversal, it was its obligation to go through the record and see whether the Appellate Court reversed the decision of the trial Court adverting its findings and reasonings on proper consideration of the evidence, The High Court Division did nothing, that being the factual and the legal position, Appellate Division finds no option but to send the revision back to the High Court Division for hearing afresh and dispose of the same on merit in accordance with law on the evidence on record. .....Mst. Tahmina & others =VS= Zafar Ali & others, (Civil), 2016-[1 LM (AD) 251] ....View Full Judgment

The Appellate Division held that the High Court Division totally failed to exercise the jurisdiction as vested under section 115(1) of the Code of Civil Procedure. The Appellate Division found that the two Courts below took two reverse views about the title and possession of the respective parties in the suit land, so before the High Court Division, the judgment and decree impugned was the judgment and decree of reversal. Therefore, it was incumbent upon the High Court Division to consider and sift the evidence on record with reference to pleadings of the parties and see whether the Appellate Court reversed the findings of the trial Court with reference to the evidence on record in accordance with the dictate of law, but unfortunately, the High Court Division did not make any exercise whatsoever in that direction and it, without applying its judicial mind just discharged the Rule by making general superficial observations. And as such Appellate Division sent back the matter back to the High Court Division for hearing the revision afresh and disposed of the same on merit in accordance with law on the evidence on record. .....Muktejuddin =VS= Alauddin, (Civil), 2016-[1 LM (AD) 175] ....View Full Judgment

The revision is sent back to the High Court Division for hearing afresh–
This Court is to send the revision back to the High Court Division for hearing afresh and dispose of the same on merit in accordance with law on the evidence on record. Accordingly the petition is disposed of in the following terms:
The impugned Judgment and order of the High Court Division is set aside. The revision is sent back to the High Court Division for hearing afresh and dispose of the same in accordance with the law on the evidence on record. In no case, the High Court Division shall the matter back to either of the Court below. .....Momtaz Ahmed Sowdagar =VS= Iddgaon Bus Station Jame Masjid, (Civil), 2017 (2)– [3 LM (AD) 414] ....View Full Judgment

Revision back to the High Court Division for afresh hearing–
How a learned Judge after recalling the order making a matter out of list hear the same on that the very date and dispose the same, in the absence of the petitioner. The High Court Division Rules permits a particular Judge to recall the unsigned order, but that must be done with notice to the parties. We find no other alternative but to send the revision back to the High Court Division for hearing afresh and for disposal of the same in accordance with law on the evidence on record. .....Moulavi Abdul Wahab =VS= Nur Ahmed, (Civil), 2017 (2)– [3 LM (AD) 418] ....View Full Judgment

Jurisdiction means “the entitlement to enter upon the enquiry in question.” The word is a verbal cast of many colours. The jurisdiction of the High Court Division in revision is a limited one. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. Section 115 empowers to satisfy the High Court Division on matters that (a) the order of the Subordinate Court is within its jurisdiction (b) the case is one in which the Court ought to exercise jurisdiction, and (c) in exercise of jurisdiction the Court has not acted illegally, that is, in breach of some provisions of law, or with material irregularity by committing some error of procedure in Course of the trial which is material in that it may have affected the ultimate decision. …Monowara Begum(Most.) =VS= Malanch Bibi, (Civil), 2020 (1) [8 LM (AD) 102] ....View Full Judgment

Whether in Civil Revision, an application for amendment of the plaint is maintainable
High Court Division rejected the application for amendment of the plaint on the view that the amendment, if allowed, would totally change the nature and character of the suit. -Held; it is clear that by the proposed amendment the plaintiffs did not seek any change as to the form of the suit from one of redemption of mortgaged to any other form and thus the suit remains as it was, i.e. one for redemption of the mortgaged property along with the other prayers. Mere omission/deletions and insertion of some new facts as indicated herein before in no way can be construed to change the nature and character of the plaint or the suit. It further appears to us that the amendment sought for it necessary to decide the core question involved in the suit as to whether the plaintiffs are entitled to redeem the mortgaged property being the heirs of late Sirajul Islam Khan who was the Managing Director of Plaintiff No.l company. In rejecting the prayer for amendment of the plaint the learned Judges have not at all spelt out as to how the amendments sought for would change the nature and character of the suit. The learned Judges in a very casual manner observed that the amendment if allowed would totally change the nature and | character of the suit. In conclusion, we hold that the learned Judges of the High Court Division erred in law in rejecting the prayer for amendment of the plaint and we are inclined to allow the prayer.
Salahuddin Khan & Ors Vs. Md. Abdul Hai Bahar & Ors 21 BLT (AD) 137. ....View Full Judgment

The revisional jurisdiction of the High Court Division is limited to addressing the issue as to whether there was misreading or non-reading of evidence or non-consideration of material facts by the Courts below– Declaration of title and recovery of khas possession in respect of the suit land described in the schedule of the plaint– The High Court Division in discharging the Rules upheld the concurrent findings of facts of the Courts below. Concluded that the relevant evidence both oral and documentary have been properly assessed.
The revisional jurisdiction of the High Court Division is limited to addressing the issue as to whether there was misreading or non-reading of evidence or non-consideration of material facts by the. Courts below, and the High Court Division did not find any such illegality or infirmity.
We do not find any illegality or impropriety in the impugned judgement and order of the High Court Division. The civil petition for leave to appeal is dismissed. ...Momtaz Begum =VS= Shahabuddin, (Civil), 2020 [9 LM (AD) 244] ....View Full Judgment

Read with
The Evidence Act, 1872 Section-2
Ext. 9, the affidavit sworn before the Presidency Magistrate in India—This exhibit has been filed as a documentary evidence in this case and duly proved. The onus of rebuttal that the affidavit is not validly executed and authenticated is on the defendants and they having not done so it is admissible as a piece of documentary evidence. [Para-24]
Abdul Karim & Ors. Vs. Md. Serajuddin Ahmed & Ors 7 BLT (AD)-160. ....View Full Judgment

Section 141 CPC does not in terms apply to proceedings in writ. But the Court in its discretion can apply the principles as distinguished from the technical provisions of the CPC to meet the exigencies of the situation on the ground of justice, equity and good conscience.
Moni Begum vs RAJUK 46 DLR (AD) 154. ....View Full Judgment

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. ....View Full Judgment

Appellate Division observed that Section 141 of the Code of Civil Procedure has provided that the procedure provided in the Code of Civil Procedure in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. A succession case, in all consideration, is a proceeding in a court of civil jurisdiction.
Mrs. Ruksana Huq -Vs.- A. K. Fayazul Huq (Nazmun Ara Sultana, J) 6 ALR (AD) 2015 (2)25 ....View Full Judgment

The grant ofrestitution is not discretionary with the court, but law imposes an obligation on the party who gets the benefit of a varied or reversed decree to make restitution to the other party for his loss.
Shahana Hossain vs AKM Asaduzzaman 47 DLR (AD) 155. ....View Full Judgment

Provisions of section 144 of the Code which clearly entitles a party to pray for restoration of possession even if the possession is delivered pursuant a decree passed in a suit. .....Masum Billah(Md.) =VS= Md. Saidur Rahman, (Civil), 2017 (2)– [3 LM (AD) 268] ....View Full Judgment

It is clear that dispossession was done not on the strength of any decree passed by the Civil Court but it was done on the strength of a notice which was found to be illegal and of no legal effect by the High Court Division — the High Court Division it appears though found that Section 144 of the Code is applicable but even if it is found that this provision is not applicable as submitted by the learned Additional Attorney General but when the plaintiffs were dispossessed on the basis of a notice which was found to be illegal by the High Court Division the civil court can exercise its inherent power under Section 151 of the Code in such a case and in the present case this discretionary exercise of power has not run counter to the interest of justice.
Military Estate Officer & Ors. Vs. SK. Mohammad Ali & Ors. 10BLT (AD)-2 ....View Full Judgment

The Code of Civil Procedure, 1908
Sections 144/151 read with
The Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Order XXVI
Review– The civil court can exercise its inherent power under section 151 of the CPC–
For declaration of their right of permanent tenancy in the suit land with a further declaration that notice bearing No. ALC/681/76 dated 29.12.1976 issued by the petitioner No.1 namely Military Estate Officer, Dhaka Cantonment for removing the structures from the suit land is illegal, void and not binding upon them. After hearing the learned Subordinate Judge by judgment and decree dated 22.8.1989 dismissed the suit. Thereafter First Appeal Nos. 99 and 100 of 1989 were filed and a Division Bench of the High Court Division by judgment and decree dated 8.8.1993 allowed the appeal declaring that the notice dated 29.12.1976 is illegal and of no legal effect and that possession of the suit land from the plaintiff respondents cannot be recovered except in due process of law. But in the meantime, taking advantage of judgment and decree dated 22.8.1989 dismissing the suit, the contesting defendants dispossessed the plaintiffs from the suit land on 26.8.1989. After disposal of the appeal by the High Court Division decreeing the suit, the plaintiffs filed an application under sections 144/151 of the Code of Civil Procedure for restitution of the suit land. The High Court Division it appears though found that section 144 of the Code is applicable but even if it is found that this provision is not applicable as submitted by the learned Additional Attorney General but when the plaintiffs were dispossessed on the basis of a notice which was found to be illegal by the High Court Division the civil court can exercise its inherent power under section 151 of the Code in such a case and in the present case this discretionary exercise of power has not run counter to the interest of justice. In review petition there is no scope of re-hearing appeal which the petitioner is seeking. The review petition is dismissed. .....Military Estate Officer =VS= Sk. Mohammad Ali, (Civil), 2018 (1) [4 LM (AD) 270] ....View Full Judgment

Section 148 which provides for granting of time to do an act within a given time by the Court has no application where direction to do an act is embodied in the decree.
Abdul Hadi Bepari vs Safaruddin Mondal 38 DLR (AD) 265. ....View Full Judgment

In a case where a court passes a decree for specific performance of contract the court retains the jurisdiction to extend time even though the decree contains a clause that in default of the plaintiff to make the requisite payment within the period fixed the suit shall stand dismissed.
Idris Shaikh vs Jilamon Bewa and others 50 DLR (AD) 161. ....View Full Judgment

In a case where a court passes a decree for specific performance of contract the court retains the jurisdiction to extend time under section 148 of the Code of Civil Procedure, even though the decree contains a default clause that in default of the plaintiff to make the requisite payment within the period fixed by the court the suit shall stand dismissed.
Idris Shaikh Vs. Jilamon Bewa & Ors 6BLT (AD)-123 ....View Full Judgment

An opportunity to pay the ad valorem court fee
The plaintiffs filed a suit for a declaration that the decree dated 9.1.84 passed in O.C. Suit No. 271 of 1982 was fraudulent, void, inoperative and not binding upon the plaintiffs. Trial court passed a decree declaring that the impugned decree was not binding upon the plaintiffs as prayed for and further set aside the impugned decree. The learned District Judge and the learned Judge of the High Court Division took the view that the decree could not be set aside because the plaintiffs neither prayed for the same nor paid ad valorem court fee as required for the relief under the Law—Held The declaratory part of the decree passed by the learned Subordinate Judge is restored and the other part, namely, setting aside of the decree will also be restored provided the plaintiffs deposit ad valorem court fee in the Trial Court for the, said relief within 3 (three) months from date. [Para- 12]
Md. Umed Ali & Anr Vs. Mst. Hamida Khatoon & Other 6 BLT AD)-273. ....View Full Judgment

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. ....View Full Judgment

Violation of injunction—Punishment for such violation by the transferee Court
Whether a transferee Court which did not pass the order of injunction is competent to punish for violation of injunction—Court granting an injunction—Whether the expression would mean “the Court” to which the whole case has been transferred—The transferee Court has jurisdiction to pass necessary order in case of violation of an injunction order passed by a Court other than it—Code of Civil Procedure, 1908 (V of 1908). Order 39 Rule 2(3).
Abdul Huque Vs. Mrs. Zainab Begum and others, 4 BLD (AD) 296. ....View Full Judgment

"Ends of justice"-This expression 'ends of justice' used in section 151 of the Code of Civil Procedure recognises wide powers inherently possessed by the Court to do justice in a given case. From this, it must not be supposed that the Court can, in disregard of the established principles and norms of law, make an order.
Bangladesh Shilpa Bank vs Bangladesh Hotels 38 DLR (AD) 70. ....View Full Judgment

Exercise of discretion­Conflicting claims of the parties in the writ petition. High Court Division which had granted the order of stay earlier vacated it on being satisfied that it should be vacated ... High Court Division has not made any arbitrary exercise of power in vacating the order of stay.
Charandwip BKSS vs Deputy Commissioner Cox's Bazar 40 DLR (AD) 213. ....View Full Judgment

Maintainability of application under section 151 CPC for setting aside an order cancelling an earlier order dismissing a Miscellaneous Case under Order IX rule 13. The effect of an order of dismissal of the Miscellaneous case for default is one of rejecting an application to set aside a decree passed ex parte. It is not an order passed on merit, but ex parte. The view taken by the High Court Division that appeal lies in both cases is correct. This is not to say that the application under section 151 CPC is barred under all circumstances. Since the application under section 151 in the present case was filed 7 days after dismissal of the miscellaneous case for default without any explanation for tfie delay, such application could not be justified.
Abdul Kader Chowdhury vs Nurul Islam 43 DLR (AD) 128. ....View Full Judgment

A discretion having been exercised for restoration of the suit dismissed for default, the High Court Division committed no illegality in affirming the order passed by the trial court in exercise of power under section 151 of the Code. Abdul Quddus vs Md Mobarak Hossain 51 DLR (AD) 54. ....View Full Judgment

High Court Rules, Chap X­The ground as to Court's failure to record 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 rehearing of the civil revision. Hasan Azam and others vs Rabeya Khatun and others 53 DLR (AD) 87. ....View Full Judgment

Any order passed by a Tribunal on fraudulent misapprehension or undue influence has no legal effect and the Court or Tribunal does not become functus officio with the passing of the order so as to recall it. Government of Bangladesh and another vs MA Khair Bhuiyan 55 DLR (AD) 76. ....View Full Judgment

Section 151 of the Code of Civil Procedure providing inherent power of the Court read with section 153 provides general power to amend any defect or error in any proceeding of the suit and for determining the real question or issue raised.
University of Dhaka represented by its Vice Chancellor vs Associated Engineering and Drillers 56 DLR (AD) 103 ....View Full Judgment

The plea of implied bar should ordinarily be decided on evidence unless the facts disclosed in the plaint clearly prove that the suit was not maintainable. A resort to section 151 of the Code may be made in an exceptional case.
Guiness Peat (Trading) Ltd vs Fazlur Rahman 44 DLR (AD) 242. ....View Full Judgment

Ex parte decree-Assistant Judge set aside the ex parte decree not upon grounds available under Order IX, rule 13 CPC but by taking resort to the inherent power of the Court under section 151 CPC-He cannot draw upon inherent power while acting under a specific provision of the Act governing the disposal of the case. Even though the learned Assistant Judge has not come to any definite finding as to the service of summons upon the appellant and having regard to all the facts noticed and observation made, there is no necessity for further determination of the question of the service of summons upon the appellant­The order of the learned Assistant Judge has rightly been set aside by the High Court Division-Appeal dismissed.
Reazul Hoque Molla vs Ajizullah Mollah 42 DLR (AD) 74. ....View Full Judgment

Though the appeal of the writ-petitioner was dismissed but the ad-interim order of injunction passed during the pendency of the appeal was a valid order required to be complied with-Writ-respondent not having complied with the same, the writ­petitioner was entitled to restoration as ordered.
Government of the People's Republic of Bangladesh and another vs Md Shamsul Haque and anr 46 DLR (AD) 101. ....View Full Judgment

The plaintiff having claimed that he had a dwelling house in the suit land and has been possessing the same “after purchase of the suit land”, until the matter is investigated and adjudicated properly against the person in possession of the property and the subsequent suit is disposed of... the Court can pass an order under its inherent jurisdiction, for staying the execution case started in a suit wherein the plaintiff was not a party. .....Zainab Banu =VS= Md. Nisar Uddin, (Civil), 2017 (2)– [3 LM (AD) 503] ....View Full Judgment

Local Investigation–
We have arrived at the conclusion that there are authorities to support the view that in a case of delivery of property beyond the decree, an application for local investigation can be allowed, treating the same as an application under section 151 of the Code of Civil Procedure. .....Shahabuddin Ahmed =VS= Md. Hossain Ali, (Civil), 2018 (1) [4 LM (AD) 331] ....View Full Judgment

The identity of the premises was not challenged by the defendant appellant at any stage of the trial. Further a copy of the tenancy agreement was submitted which show that the premises rented out was plot No. 4313 and therefore the mentioning of plot No. 4314 in the schedule of the plain is obviously a typing error. The High Court Division also found that plot no. 4314 in the schedule was a typing error. The amendment sought being of the formal nature it falls within Sections 151, 152 and 153 of the Code of Civil Procedure which the Court can correct. The High Court Division therefore held that such correction of clerical Mistake does not amount to amendment of the plaint under Order 6 Rule 17 In the circumstances we do not find any illegality in the judgment and order passed by the High Court Division in allowing the correction in the schedule of the plaint by substituting plot No.4313 in place of 4314.
Sri Narayan Chandra Pande Vs. Md. Mahbub Ali &Ors. 9BLT (AD)-197 ....View Full Judgment

Any mistake in drawing up preliminary decree-whereby a property which as the judgment makes clear, was excluded from the category of suit land can be corrected under section 152 even though the preliminary decree was allowed to stand.
Ismailullah vs Sukumar Chandra Das 38 DLR (AD) 125. ....View Full Judgment

The judgment which has been orally dictated in the Court can be completely changed before it is signed and sealed provided notice is given to all parties concerned and they are heard.
Abdur Rashid vs Santi Bhusan Deb and others 55 DLR (AD) 86. ....View Full Judgment

read with
Companies Act [XVII of 1994]
Sections 107 and 233 read with
Companies Rules, 2009
Rules 8 and 263 —Principles of natural justice.
The impugned order was passed be-hind the back of the leave petitioner as it does not appear that the copy of the application for modification was served upon him and/or he was given any chance of hearing before passing the impugned order. Therefore, the impugned order was passed in complete violation of the principles of natural justice.
The Appellate Division observed that from the statements made in the leave petition, it is clear that the impugned order was passed behind the back of the leave petitioner as it does not appear that the copy of the application for modification was served upon him and/or he was given any chance of hearing before passing the impugned order. Therefore, the Appellate Division finds substance in the submission of Mr. Kamal-Ul Alam that the impugned order was passed in complete violation of the principles of natural justice, i.e. without giving any chance of hearing to the petitioner and as such, the impugned order cannot be sustained. The Appellate Division also hold that after passing the final order on 07.04.2013 rejecting the substantive application under sections 107 and 233 of the Act, 1994 and the order having been sealed and signed, the Company Judge be-came functious officio and had no power to assume jurisdiction by way of modification of the said order, he could do so only on a proper application for review of the order. In the context, the Appellate Division would like to further observe that the prayer for modification of the order dated 07.04.2013 would not attract the provisions of sections 152 and 153 of the Code of Civil Procedure and rules 8 and 263 of the Companies Rules, 2009.
M. M. Ibrahim -Vs.- Mizanul Haque Chowdhury and others (Civil) 14 ALR (AD) 24-26 ....View Full Judgment

Whether the limitation for filing an appeal against a decree will run from the date of the decree or from the date on which the decree has been amended on an application under section 152 of the C.P.C. Answer—from the date of the decree.
Subordinate Judge as an Arbitrator passed the award on 28th May, 1985. The Arbitrator corrected the Award on 10th March, 1990 on an application under section 152 of the C.P.C. The scope of this section is very limited and decision under this section cannot materially affect the decree except correcting some insignificant errors or accidental omission having nothing to do with the merit of the decree itself. The appeal, not being filed within the prescribed period of 60 days from the date of the decree on 28.5.85 but being filed about 41/2 years beyond this period, was not maintainable. The decree award being under a special law, condonation under Section 5 of the Limitation Act also did not apply. The amendment does not give a fresh start of limitation to file an appeal from the date of the amendment; the point remains as before the date of the decree.
Bangladesh Vs Luxmi Bibi & Ors. 2BLT(AD)-182 ....View Full Judgment

Preliminary–
The main allegation in the plaint for declaring that preliminary decree and final decrees void was that the decrees were obtained by plaintiffs by suppressing the summonses of the suit upon the defendants.
The Appellate Division found from the judgment and decree of the trial Court, it set aside the decree of Title Suit No.254 of 1996 on the clear finding that summonses of the suit were not served upon the defendants of that suit, i,e. the plaintiffs of the instant suit. The High Court Division being the last Court of fact also affirmed the said finding of fact of the trial Court. The Appellate Division held that the suit should be proceeded with and disposed of in accordance with law and accordingly, the trial Court is directed to proceed with Title Suit No.254 of 1996 and dispose of the same in accordance with law. Accordingly petition is dismissed. .....Anjuman Ara & others =VS= Md. Abul Hossain & others, (Civil), 2016-[1 LM (AD) 208] ....View Full Judgment

The trial Court rejected the prayer by its order dated 24.09.2012. Against that order the pre-emptees filed Civil Revision No.232 of 2012 before the District Judge, Dhaka under section 115(2) of the Code of Civil Procedure (the Code). Revision was rejected by the learned Additional District Judge, 8th Court, Dhaka by his order dated 15.03.1914. Against the order of the learned Additional District Judge, the pre-emptees filed a second revision before the High Court Division under Section 115(4) of the Code. The Rule was discharged affirming those of the learned Additional District Judge, hence this petition for leave to appeal. .....Alhaj Md. Maruf Hasan Swapan & another =VS= Kohinur Aziz & others, (Civil), 2016-[1 LM (AD) 273] ....View Full Judgment

CODE OF CIVIL PROCEDURE, 1908
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All person may be joined as defendants claiming relief against all, there being a common question of fact and law involved.
Bangladesh Railway vs Messrs Chartering and Shipbooking Corporation 37 DLR (AD) 47. ....View Full Judgment

Representative suit under Order 1, rule 8 CPC­Prayer for ad-interim injunction restraining the defendants from proceeding with the construction refused by the trial Court and the same was affirmed by the lower appellate Court-High Court Division summarily rejected the revisional application filed under section 115 CPC­Directive principles of State (Articles 8-25 of the Constitution of Bangladesh) considered.
However, the need for judicial intervention may not arise even in those cases where the Court's jurisdiction is invoked if the administration takes preventive, remedial and curative measures meanwhile.
Ziaul Huq vs Messrs Business Resources Ltd 42 DLR (AD) 80. ....View Full Judgment

Addition of party in a suit for specific performance of contract-The appellants' averments in the application for addition of party setting up an independent title to the land disentitle them to be included as parties within the framework of the present suit wherein the real question to be determined is whether the contract for sale between the parties therein was genuine and whether on the basis thereof the plaintiffs are entitled to get a decree. The averments for addition of party will convert the present suit into one for determination of title which is not permissible in law.
Golam Kader and others vs Abdul Khaleque Choukder and others 43 DLR (AD) 107. ....View Full Judgment

Even if the facts stated by the petitioners in assertion of their right to be added as parties are taken to be correct then also they cannot be added as parties because they have no independent right to call in question the legality and propriety of the decree passed.
Abdur Rashid (Md) and others vs Bainchitala Junior High School 54 DLR (AD) 80. ....View Full Judgment

Interest of lessor and lessee may not always be same so as to say the presence of the lessor wIll protect the Interest of the lessee.
At the same It may be necessary to poInt out that the lessee may have more reasons or urgency to protect hIs Interest In the suIt land than the lessor. The Interest of lessor and lessee may not always be the same so as to hold that the presence of lessor as defendant In a suIt suffIces and the lessee's presence Is not necessary and may, therefore, be dIspensed wIth.
Waliullah Munshi vs Lodu Patwary 38 DLR (AD) 308. ....View Full Judgment

Though there is no clear provision mentioning the word ‘transposition’ but order I rule 10(2) of the Code of Civil Procedure enables the courts to make such transposition, Order I rule 10(2) has empowered the courts to strike out name of any party, either plaintiff or defendant, improperly joined and also to add any persons-either as plaintiff or defendant-who ought to have been joined whether as plaintiff or defendant or whose presence before the court may be necessary for effectual and complete adjudication of the matter. Exercising this very power the courts can make transposition also of either of the parties of a suit or other proceeding to the other category of the parties and the courts also are doing so, and it has become a long practice now. Of course, generally, the courts will not allow transposition of defendants as plaintiffs after striking the names of the original plaintiffs or after transposing them as defendants. But in appropriate facts and circumstances-as these are in the present case-the courts should not be reluctant to make such transposition of the parties for the ends of justice or to prevent abuse of the process of the court. .....Mrs. Ruksana Huq & others =VS= A. K. Fayazul Huq & others, (Civil), 2016-[1 LM (AD) 452] ....View Full Judgment

Addition of party as a defendant–
If upon taking evidence it is found that Abdul Quddus is son of Abdur Rahim, then it will be up to the plaintiff to amend the plaint accordingly. If it is found that Abdul Quddus is son of Abdun Nur, then the applicant is a different person to the one named in the plaint. In that case his name may be added as a defendant if he can satisfy the Court that he is a necessary party under Order I, Rule 10 of the Code of Civil Procedure. Civil petition for leave to appeal is disposed of. ...Abdul Quddus =VS= Joygunnessa, (Civil), 2019 (1) [6 LM (AD) 267] ....View Full Judgment

Proper Party and Necessary Party
In view of the fact that the suit land along with other land was acquired in L. A. Case No. 02 of 1987-88 with RAJUK as the requiring body, RAJUK has evidently direct interest in the result of the suit and as such RAJUK is not only a proper party but also a necessary party to the suit.
Rajdhani Unnayan Kartipakha (RAJUK) -Vs.- Jonab Ali being dead his heirs 2 ALR (2013)(AD) 57 ....View Full Judgment

No relief can be given to a party to a suit beyond the frame of the suit and pleading.
The Appellate Division is of the view that justice would be best served if the observations made and the directions given by the High Court Division as quoted are expunged and those of the Appellate Court are affirmed.
Abdul Matin. -Vs.- Golam Rahman Kashem and others. (Civil) 11 ALR (AD) 125-126 ....View Full Judgment

The question that came up for consideration before the Appellate Division is as to whether a subsequent suit for a particular relief is available to the plaintiff when he failed to incorporate the said relief in an earlier suit between the same parties in respect of the same transaction. When the earlier suit came up before the Appellate Division it was found that the present claim of taka 7 lacs was made in a concealed manner in paragraph 21 of the plaint of that suit. The learned counsel appearing for the defendant-petitioner submitted at that time that the plaintiff-respondent could not get taka 7 lacs in that suit without suing for account and his submission was accepted. The defendant-petitioner cannot now turn round and take up an opposite stand to plead that the present suit for that particular relief is not available to the plaintiff in view of the provision of Order II Rule 2 C.P.C. In the facts of the case, it cannot be said that the present suit comes within the mischief of Order VII Rule 11 C.P.C. for rejection of the plaint.
Sonali Bank Vs. Gazi Abdur Rashid, 15 BLD (AD) 93. ....View Full Judgment

This Order and the rules have no application in the matter of signature on the plaint because it is not an act in or to a Court. A plaint can be signed outside the Court.
Anath Bandhu Guha & Sons Ltd vs Babu Sudhangshu Shekhar Halder 42 DLR (AD) 244. ....View Full Judgment

Power-of-Attorney-Defect and disability­When the power of attorney fails the embargo that follows will fall upon the lawyer and not on prosecution of suit by the principal. The disability attaches to the lawyer and not to the plaint. Court is to fix a date for steps to be taken by plaintiff when he may appear himself or by another recognised agent or by the same attorney after curing the defect. SSC Judge wrongly held that due to defect in power of attorney there was no cause of action for the suit, for it is the principal who has cause of action for the suit. Plaint can be rejected only when on the averments the plaintiffs is found not to have cause of action. Without rejecting the plaint the court has a clear duty to fix a date for the plaintiff to take steps.
Anath Bandhu Guha & Sons Ltd vs Babu Sudhangshu Shekar Halder 42 DLR (AD) 244. ....View Full Judgment

The vokalatnama remains valid unless cancelled with the leave of the Court by the client or Advocate or until the client or the Advocate dies or until all proceedings in the suit are ended so far as regards the client. As soon as the all proceedings under Order IX Rule 13 came to an end, all proceedings in relation to the pre-emption case shall be deemed to have come to an end and the vokalatnama executed by the pre-emptor shall be deemed to have been terminated or lost its efficacy according to sub-rule (2) of Rule 4 of Order III of the Code of Civil Procedure. …Ibrahim Khalique @ Ibrahim Salik =VS= Ayesha Bibi, (Civil), 2020 (1) [8 LM (AD) 156] ....View Full Judgment

A review is never meant nor can be allowed to be utilized as another opportunity for rehearing a matter which has already been closed by a final judgment.
Md. Abdul Mannan Akand Vs. Md. Lutfar Rahman & Ors 14 BLT (AD)211 ....View Full Judgment

Petitioner entered appear­ance in the suit by filing a vokalatnama and filed written objection in the injunction matter but subsequently he did not file any written statement in the suit and consequently the ex parte decree was passed. The petitioner's plea that summons was not served upon him is not tenable at all.
Jalaluddin (Md) and others vs Laity Begum and others 48 DLR (AD) 163. ....View Full Judgment

Service of summons-When the lower appellate Court finds that the name of the clerk who received the summons is not distinct and the names and addresses of witnesses in whose presence the summons was served have not been noted in the original summons, that provides a strong ground for the court below to hold that the summons was not served. The procedure provided for serving summons is not to be whittled down by importing the concept of "substantial compliance" as done by the High Court Division.
Bangladesh vs Chand Mia & others 44 DLR (AD) 98. ....View Full Judgment

Service of summons, proof of-Summons served by process-server without noting the names and addresses of Mokabila witnesses in the service return ­Process-server appearing in Court as a witness-­his evidence without examining the Mokabila witness not acceptable-It is obligatory upon the process-server to mention in his report the name and address of the person, if any, by whom the house in question was identified and in whose presence the copy of summons was affixed­ When service reports were devoid of these essential information, they were unacceptable­. Mere personal appearance of the process-server as a witness in Court did not make the report acceptable.
Upendra Chandra Rishi vs Sujia Begum 42 DLR (AD) 285. ....View Full Judgment

Petitioner entered appearance in the suit by filing a vokalatnama and filed written objection in the injunction matter. Subsequently he did not file any written statement and ex parte decree was passed. In that view of the matter the petitioner's plea that summons was not served upon them is not tenable at all.
Jalaluddin and others vs Laily Begum and others 50 DLR (AD) 105. ....View Full Judgment

The summons of the original pre-emption case was served on the husband of the preempteerespondent—The High Court Division rightly held that—in the instant case there is no evidence that the husband of the pre-empteerespondent was the recognised agent of hers. Therefore the summons was not duly served upon the pre-emptee-respondent.
Abdur Rahman. Vs. Shamsun Nahar Begum & Ors. 7BLT (AD)-125 ....View Full Judgment

The departure in the evidence from the plaint has not been of such a dimension that the defendants were unfairly taken by surprise. Both the parties had all opportunities to lay before the court all their evidence respecting title and possession of the suit land. In such circumstances the operation of Order VI rule 7 of the Code will not come in.
Kochi Mia @ Khocha Mia vs Suruj Mia being dead his heirs Md Fazlur Rahman and others 51 DLR (AD) 57. ....View Full Judgment

Companies are not exclusively governed by the provisions of Order XIX rule 1 in the matter of signature on plaint. They are also governed by the provisions of Order VI rule 14. A company has alternative choice. It can follow Order XIX rule 1 or Order VI rule 14. It cannot orally authorise a person to sign a plaint-it is governed by its Articles of Association in such matters. It is not condition of verification of plaint that it should be done by the holder of a power of attorney.
Anath Bandhu Guha & Sons Ltd vs Babu Sudhangshu Shekhar Halder 42 DLR (AD) 244. ....View Full Judgment

Amendment of plaint­ - When it means no substitution of one cause of action for another- The impugned transfer of shares of the plaintiff having taken place during the period of insanity of the plaintiff, it is necessary to dispose of the same within the framework of the suit for declaration. Insanity being the foundation of the suit plaintiff can legitimately combine in one suit all the alleged illegalities committed by the appellant in the matter of transfer of the shares in question and other properties. This is not substitution of one cause of action for another, but a consolidation of all wrongs allegedly done to the plaintiff.
Afruz Miah vs Al-haj Md Siraj Miah 43 DLR (AD) 89. ....View Full Judgment

Instead of furthering the cause of justice by allowing the plaintiff-appellant a full opportunity to place his case against all the parties involved by stating all the facts that he wants to allege against them and by seeking all possible remedies against them, the High Court Division has given a queer look at the plaintiff and has found him lacking in bonafides in whatever he does. After all, he is seeking full justice from a Court oflaw and he wanted to bring all the parties involved in the original and subsequent transactions. Why should anyone find a malafide motive in trying to do just that, is beyond our comprehension.
Khaledur Reza Chowdhury (Md) vs Saleha Begum and others 48 DLR (AD) 209. ....View Full Judgment

Amendment only in the prayer portion of the plaint following direction for taking fresh evidence in order to prove 'Salishnama', the basis of plaintiff's claim calls for no interference.
Abdul Khaleque Gazi and others vs Abdul Aziz Mollah and others 53 DLR (AD) 82. ....View Full Judgment

read with
Transfer of Property Act [IV of 1882]
Section 106 —Monthly rent could not be defrayed from the unpaid amount of the loan. Hence the defendant was rightly found to be a defaulter.
The Appellate Division observed that it is clear from the terms of the agreements that out of the sums of money paid by the defendant to the plaintiff, a definite specified amount was to be treated as advance rent, which would be adjusted over the total length of the tenancy. The remainder of the money paid would be loan, to be repaid. Clearly there is a difference between adjusting the rent from advance money and repaying loan from money received by way of rent, or from other source. Obviously there is no stipulation as to the time frame within which the loan would be repaid and indeed there will be consequences for non-payment of the loan amount. But Appellate Division does not finds any agreement that the loan amount would be adjusted against rent. The plain-tiff agreed to repay the loan money from his source of income, including rent which he would receive. The record shows that even after deduction of advance from the rent the plaintiff would receive Tk. 5000/-per month as part of the monthly rental. Also he was expecting to receive further sums for the additional space on the ground floor which would be extra income for him and would be used to repay his loan. Hence, monthly rent could not be defrayed from the unpaid amount of the loan. The plaintiff would repay the loan from his in-come from whatever source. Appellate Di-vision is of the view that the defendant was rightly found to be a defaulter.
A.K.M. Mahbubul Haque -Vs.- Chowd-hury Motinul Haider (Civil) 9 ALR (AD) 213-216 ....View Full Judgment

Praying for declaration of title to the property described in ‘A’ scheduled of the plaint and also for delivery of khas possession of the property described in schedule ‘B’ of the plaint upon eviction of the defendants and/or persons claiming through them and also for permanent injunction restraining the defendants from making any construction and/or changing the nature and character of the land. Praying for amendment of the plaint stating, inter alia, that due to over sight at the time of filing of the suit the learned lawyer of the plaintiff made some mistakes and as such the plaint should be amended. .....S.K. Khalilur Rahman =VS= Mrs. Meherun Nesa, (Civil), 2018 (1) [4 LM (AD) 340] ....View Full Judgment

Amendment of the plaint– Mere omission/deletion and insertion of some new facts as indicated hereinbefore, in no way, can be construed to change the nature and character of the plaint or the suit. …Salahuddin Khan =VS= Md. Abdul Hai Bahar, (Civil), 2020 (1) [8 LM (AD) 133] ....View Full Judgment

Plaint can be allowed when the proposed amendment will not change the nature of the suit– It has been established in a number of cases by the Apex Court of the sub-continent that when there is specific provision in the Code for a matter to be decided a Court should not exercise the inherent power to dispose of the matter.
We are of the view that the order dated 11.08.2003 passed by the learned Joint District Judge in recalling its earlier order dated 08.06.2003 on an application under Section 151 of the Code is not tenable in law. The aggrieved party in all fairness should have invoked either review jurisdiction under section 114 or revisional jurisdiction under Section 115 of the Code of Civil Procedure. Therefore the High Court Division has erred in law in not holding that the order dated 11.08.2003 passed by the learned Joint District Judge is not tenable in law and as such by the impugned order dated 11.04.2005 passed by the High Court Division in Civil Revision No.3951 of 2003 Rule would have been made absolute.
However amendment of the plaint can be allowed when the proposed amendment will not change the nature, feature and character of the suit. In the instant suit if any party is aggrieved by the order passed by the trial Court, he may seek necessary relief invoking the specific provision of law before the competent Court. The appeal is allowed without any order as to cost and the impugned judgment and order is set aside. …Harun-or-Rashid =VS= Gulaynoor Bibi, (Civil), 2020 (1) [8 LM (AD) 114] ....View Full Judgment

A general allegation of collusion implying some kind of fraud is not enough without particulars. Specific pleadings in support of fraud or collusion as per Order 6 Rule 4 are required to be made and those allegations of fraud and collusion must be substantially proved by the party making them. …Alimuzzaman (Reza)(Md.) =VS= Masudar Rahman(Md.) @ Babul, (Civil), 2020 (1) [8 LM (AD) 164] ....View Full Judgment

Amendment of the plaint– It is now well-settled that the amendment of the pleadings could be allowed at any stage of the proceedings for the purpose of determining the real question of controversy between the parties, but it could not be allowed, if, it changed the nature and character of the suit, or if the prayer for amendment had became barred by lapse of time and a right had accrued to the other side. That the High Court Division wrongly came to a finding that the proposed amendment would change nature and character of the suit although addition of new fact cannot in any way change the nature and character Therefore, the judgment and order passed by the High Court Division affirming the judgment and order passed by the learned District Judge cannot sustain. Admittedly the suit filed in 2000 is yet to be disposed of by the trial Court. Such being the state of affairs we do not find any point dragging the case before this Division in an interlocutory matter. And the order of trial Court allowing amendment is restored. The trial Court is directed to dispose of the suit as expeditiously as possible. ...Akram Ali Pk.(Md.) =VS= Yasin Ali(Md.), (Civil), 2020 [9 LM (AD) 373] ....View Full Judgment

The question of fresh threat from the heirs of defendant does not arise as the suit was filed at a time when there was definite cause of action and as such the Court· was not correct in holding that there was no continuing threat to file the suit.
Saitan Bibi and others vs Chairna Bewa and others 5I DLR (AD) 28. ....View Full Judgment

Cause of action-­What it is-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. It consists of the entire set of facts which gives rise to a legal action and is to be provided to entitle the plaintiff to succeed in the suit. It has little relation either to the defence to be taken by the defendant or the nature of relief prayed for.
Surat Sarder and others vs Aftal Hossain and others 49 DLR (AD) 99. ....View Full Judgment

In the name of granting general or other relief the Court cannot and would not mount any surprise on the defendant and make him liable for something which does not arise out of the plaint and, as such, he had no occasion to answer the same. This is merely an extension of the principle of natural justice.
Hefzur Rahman vs Shamsun Nahar Begum 51 DLR (AD) 172. ....View Full Judgment

Jurisdiction to entertain suit-A corporation can be said to carry on business at the place where it has a branch only in respect of a cause of action which arises wholly or in part at such place. If no part of the cause of action accrues at the place of the branch officer the mere fact of the corporation having a branch office at the place will not give the court jurisdiction to entertain a suit.
Khondaker Mahtabuddin Ahmed, vs Matin Tea and Trading Company 46 DLR (AD) 92. ....View Full Judgment

When the nature of transaction becomes doubtful on the specific allegation made by the pre-emptor then the matter is required to be tested by adducing evidence in order to ascertain the nature of transaction and to decide the case properly.
Alfazuddin Mollah and others vs Md Almas Chokder and anr 56 DLR (AD) 179. ....View Full Judgment

Questions of limitation and res judicata raised in the application for rejecting the point are mixed questions of law and fact which need thorough investigation on adequate evidence for arriving at a correct decision on framing specific issues by the trial Court.
Mahbubul Haque vs Md A Kader Munshi 52 DLR (AD) 49. ....View Full Judgment

Non-filing of documents with plaint-No malafide or ill-motive could be attributed in not filing the document at the time of filing of the plaint-The new provision for such filing of documents has been added for the purpose of speedy disposal of cases but that does not mean that in case of a bonafide human error the Court will not be in a position to grant leave in unavoidable and exceptional circumstances to file necessary documents.
Afsaruddin Ahmed vs Banque Indosuez 44 DLR (AD) 136. ....View Full Judgment

read with
Tenancy Rules, 1954
Rules 30 and 31 —The defendant did not raise any objection as to the un-specification or vagueness of the suit land. The suit land has been clearly identified by the chauhaddis. Therefore, no vagueness or un-specification in the suit land.
It is a well settled principle of law that in a suit for permanent injunction, the prime consideration is whether the plaintiff is in exclusive possession of the suit land. It is also a settled principle of law that title can be gone into incidentally.
The suit land has been separately recorded in the two new plots mentioned above and a new khatian has been opened in the name of the plaintiff mosque. The very recording of the land of the suit plots in separate khatian in the name of the mosque and subsequent payment of rent prima facie proved that the plaintiff is in exclusive possession of the specified area of the suit land
The Appellate Division observed that from the judgment and decree of the trial Court, it appears that it considered the evidence on record and gave clear finding that the plaintiff’s witnesses proved its possession in the suit land. The trial Court also found prima facie title of the plaintiff in the suit land. From the judgment of the Appellate Court, it appears that it itself noted that the plaintiff’s witnesses, namely: PWs1, 2, 3, 4, 5, 6, 7 deposed that the plaintiff mosque is in the possession of the suit land and the defendants by cross-examining them could not extract any¬thing in their favour. In the concise statement, it has been stated that the name of the plaintiff mosque has been recorded in the recent survey and also in the field survey and no objection was raised by the defendant under rules 30 and 31 of the Tenancy Rules. In the concise statement, it has been further stated that in the revisional survey, the lands of two plots involved in the suit being plot Nos. 499 and 500, were recorded in the name of the plaintiff mosque in new Plot Nos. 780 and 819 respectively appertaining to new khatain being No. 350 and rent has been paid by the Mutualli under the new khatian which were filed before the High Court Division which conclusively proved that the plaintiff mosque is in possession in the suit land. Mrs. Sufi Khatun could not dispute the assertion made in the concise statement that the suit land has been separately recorded in the two new plots mentioned above and a new khatian has been opened in the name of the plaintiff mosque. The very recording of the land of the suit plots in separate khatian in the name of the mosque and subsequent payment of rent prima facie proved that the plaintiff is in exclusive possession of the specified area of the suit land and the plaintiff’s witnesses also clearly proved its possession in the suit land. Even if it is accepted that the plaintiff did not file any rent receipt showing payment of rent at the earliest point of time that could not nullify the oral evidence of the PWs that the plaintiff was in possession in the suit land.
Abdur Rashid -Vs.- Purba Shingha Gram Jame Masjid and others (Civil) 13 ALR (AD) 153-156 ....View Full Judgment

read with
Specific Relief Act [ I of 1872]
Section 42 —In reversing the findings of the final Court of facts, the revisional Court must identify the evidence which has been misread or not considered by the appellate Court.
The Appellate Division held that in the instant case the High Court Division has not adverted to any evidence or materials which has been misread or not considered by the appellate Court and also there is no suggestion that the appellate Court misconceived any provision of law. It is an established principle that in reversing the findings of the final Court of facts, the revisional Court must identify the evidence which has been misread or not considered by the appellate Court. This having not been done, the impugned judgement cannot be said to be in accordance with law and settled legal principles.
Kanchan Mallik and others -Vs.- Saleha Begum and others (Civil) 9 ALR (AD) 115-118 ....View Full Judgment

A plaint of a suit should not be rejected under order 7 rule 11 of the Code of Civil Procedure only on point of res-judicata–
A plaint of a suit should not be rejected under order 7 rule 11 of the Code of Civil Procedure only on point of res-judicata. But the facts of the present case are quite different. The High Court Division concluded that the present plaintiffs-opposite parties having knowledge about the previous suit and having lost their title up to this Division, instituted the present suit which is nothing but a futile exercise. Having considered the facts and circumstances discussed above, we are of the view that the High Court Division has properly considered the relevant law and facts involved in the case. The decision arrived at does not call for interference by this Division and, accordingly, the civil petition for leave to appeal is dismissed. .....Sumon Paul =VS= Binode Kumar Mali, (Civil), 2018 (2) [5 LM (AD) 139] ....View Full Judgment

The plaintiff has no cause of action to file the suit. The High Court Division rightly held that the plaintiff had no cause of action for the suit and accordingly rejected the plaint under Order 7 Rule 11 of the Code of Civil Procedure for want of cause of action. We find no cogent reason to interfere with the same. The appeal is dismissed. .....M/S. Samrat Shoes and Leather Manufacturing Industries Ltd. =VS= Md. Zahirul Islam, (Civil), 2018 (2) [5 LM (AD) 426] ....View Full Judgment

The Code of Civil Procedure, 1908
Order 7 Rule 11 read with section 151
Specific Relief Act, 1877
Section 42
Maintainability of the application for rejection of the plaint–
The Appellate Division found that the very nature of the claim that the decree has been obtained by practicing fraud upon the court without impleading the plaintiff presupposes the maintainability of the suit. Its stated that the defendants attempted to get the said decree executed for which the plaintiff are prejudiced seriously and that there are disputed facts which cannot be adjudicated upon without recording any evidence. The High Court Division miserably failed to consider that aspect to the matter and thereby has committed error of law resulting on error in the decision occasioning failure of justice in rejecting the plaint. The judgment of the High Court Division is set aside. The Appellate Division directed the triad Court to dispose of the trial of the suit expeditiously, accordingly the appeal was allowed. .....Jahangir Khandaker & others =VS= Mosammat Ayesha & others, (Civil), 2016-[1 LM (AD) 253] ....View Full Judgment

For rejection of the plaint– For declaration that the contract No.315510058 dated 31.01.2011 was illegal, void and the same is not binding upon the plaintiff–
High Court Division that the High Court Division found that there was a valid agreement between the plaintiff and defendant wherein an arbitration clause has been stipulated and pursuant to the said agreement an arbitration proceeding has already been commenced before the Arbitration Tribunal at Liverpool. This suit has been instituted subsequent to the arbitration proceeding. The High Court Division held that though written statement has been filed but, in fact, the same can be treated as information to the court regarding pendency of arbitration proceeding before Arbitration Tribunal at Liverpool.
We are of the view that the High Court Division rightly disposed of the Rule staying further proceeding of the suit with a direction to settle the dispute in the arbitration proceeding. .....Mosharaf Com. Tex. Mills Ltd =VS= ECOM Agro. Corp. Ltd & others, (Civil), 2016-[1 LM (AD) 248] ....View Full Judgment

For specific performance of contract- The learned Judges invoked section 151 of the Code, but the inherent power under the section cannot be exercised on assumptions and presumptions of facts and or on suspicion. .....Md. Noor Hossain & others =VS= Mahbuba Sarwar & others, (Civil), 2016-[1 LM (AD) 341] ....View Full Judgment

It is clear that the plaintiff mentioned the number of the C.S. and the S.A. Khatians and also the plot numbers of the lands in the suit and thus there was full compliance with the previsions of Order VII, rule 3 of the Code. And since no fraction or portion of the lands of the two plots was claimed, there was no necessity of giving any chauhaddi or boundary of the suit plots. .....Karim Khan =VS= Kala Chand, (Civil), 2017 (2)– [3 LM (AD) 236] ....View Full Judgment

Mandatory injunction –
A Court of law can give mandatory injunction if it is necessary to compel the performance of certain acts which the Court is capable of enforcing and also to compel performance of the requisite acts to prevent the breach of an obligation by the defendant(s) and to get a relief in a suit, the plaintiff must satisfy the Court by producing evidence that the defendants had an obligation to him which they were breaching. .....Comprehensive Holdings Ltd.=VS=MH Khan Monju, (Civil), 2017 (2)– [3 LM (AD) 198] ....View Full Judgment

It is true that the provisions of rule 11 are not exhaustive in the matter of rejection of plaint and in exceptional situation a plaint can be rejected under section 151 of the Code even if it does not come within the mischief of this rule. …Salahuddin Khan =VS= Md. Abdul Hai Bahar, (Civil), 2020 (1) [8 LM (AD) 133] ....View Full Judgment

The trial Court shall be at liberty to decide the issue of maintainability along with the other issues involved in the suit on the evidence to be adduced by the parties at the trial– In the plaint clear averment having been made that out of 2.90 acres land from C.S. plot No. 210 of C.S. khatian No. 215, the Government acquired 2.20 acres land and 70 decimals land remained unacquired of which the plaintiffs were the owners, but the Housing Authority illegally created a plot out of the unacquired land as described in schedule `kha' to the plaint and allotted the same to defendant No. 9 and that, that illegal action of the Housing Authority gave cause of action to the plain-tiffs to file the instant suit, the question of the suit being barred either under the provisions of the Emergency Requisition of property Act, 1948 or the Ordinance, 1982
The National Housing Authority ignoring the case of the plaintiffs that the National Housing Authority illegally erected an industrial plot by encroaching upon the unacquired land of C.S. plot No. 210 as described in schedule `kha' to the plaint without giving the plaintiffs chance to prove their case by adducing evidence at the trial of the suit. We were taken aback seeing the treatment of the High Court Division of the un-exhibited documents and consideration of the case of the defendants in deciding the merit of the application under Order VII, rule 11 of the Code. And we are constrained to hold that the High Court Division had not the minimum legal acumen as to the scope of interference in revision in deciding the propriety of an order passed by the Court below under Order VII, rule 11 of the Code.
The impugned judgment and order of the High Court Division is set aside, the application filed by the defendant Government under Order VII, rule 11 read with section 151 of the Code is hereby rejected. The suit shall proceed in accordance with law. All the adverse comments made by the High Court Division about the maintainability of the suit and the cause of action to file the suit are hereby expunged. The trial Court shall be at liberty to decide the issue of maintainability along with the other issues involved in the suit on the evidence to be adduced by the parties at the trial. The parties are directed to maintain status-quo strictly in respect of the position and the possessions of the suit property till disposal of the suit. …Abdul Khaleque(Md.) =VS= National Housing Authority, (Civil), 2020 (1) [8 LM (AD) 314] ....View Full Judgment

Rejected the plaint–
The abandoned character of the property having been established all the way to this Division and the challenges of the Government as well as the present respondent having been unsuccessful, there can be no doubt about the legality of the gazette notification dated 02.12.2004 and hence we find that the trial Court rightly rejected the plaint of writ-respondent No.1 under Order VII, Rule 11 of the Code of Civil Procedure. We find that the judgement and order of the High Court Division is not in accordance with law and accordingly the impugned judgement and order is set aside and the judgement and decree dated 24.03.2006 passed by the learned Joint District Judge, First Court, Mymensingh in Other Class Suit No.03 of 2004 is upheld. The appeal is allowed. ...Javed Alam(Md.) =VS= A.F. Alfajuddin Ahmed, (Civil), 2019 (1) [6 LM (AD) 1] ....View Full Judgment

Section 17A and 17B of the Registration Act shall apply only to the registration of the Bainanama deed, but the plaintiffs have not claimed to have registered deed of sale on the basis of said Bainanama. Therefore, it does not apply to the instant suit; there is no ground to reject the plaint of the plaintiffs. The trial Court rejected the application under Order VII, Rule 11 of the Code of Civil Procedure on the ground that the suit was brought by the plaintiffs only in respect of protecting their possession over the suit land and not for specific performance of contract and hence the provisions of sections 17A and 17B do not apply to the instant suit. ...Kari Moulavi Abdul Gafur =VS= Mohammad Nurullah, (Civil), 2019 (1) [6 LM (AD) 190] ....View Full Judgment

Since specific assertion was not denied specifically either in written statements or in evidence the Court is not inclined to permit the defendants to raise such a question at this stage.
Nurul Islam and others vs Jamila Khatun and others 53 DLR (AD) 45. ....View Full Judgment

Documents placed before the Appellate Division for the first time to be accepted as additional evidence cannot be accepted at such late stage as no case of set-off was made out in the written statement.
Bangladesh Shipping Corporation vs Rakibuddin Ahmed and others 48 DLR (AD) 203. ....View Full Judgment

According to the law of pleadings, the defendant is bound to deal specifically each allegations of fact, the truth of which is not admitted. The written statement must not only deal with specifically, the defendant must also answer the point of substance. If his denial of fact is not specific but evasive, the said fact shall be taken to be admitted. In such event, the admission itself being proof, no other proof is necessary.
Zafela Begum and others Vs. Atikulla and others 1 ALR (AD)1 ....View Full Judgment

Ordinarily failure of Counsel's clerk to inform him about the date of hearing of the case will not be regarded as a sufficient ground for his non-appearance but there may be special circumstances when a clerk's failure may amount to be a sufficient cause.
Alfu Miah and others vs Government of the People's Republic of Bangladesh 45 DLR (AD) 112. ....View Full Judgment

The Court below committed no illegality in holding that the subsequent application under Order IX rule 9 was not maintainable.
Alhaj Mokler Hussain Talukder vs Ainuddin Ahmed and others 45 DLR (AD) 37. ....View Full Judgment

It is wrong to say that for a remedial action against an order time would start to run against one from the date of the order and not from the time when one comes to know about it.
When an injury is caused to a party due to any mistake or default committed by a court or its officers, it is not only the right but also the duty of the court to correct its own mistake.
The question of limitation is immaterial in a case, when the court in restoring the suit merely corrected the mistake of its own officers of not informing the lawyers of the parties about return of the record and the next date fixed.
Keramat Ali Bhuiyan vs Ramizuddin Ahmed Bhuiyan 43 DLR (AD) 58. ....View Full Judgment

Suit for specific performance of contract for the sale of the suit property instituted by the plaintiff-respondent­. Defendant-appellant denied the contract by filing a written statement-The case was fixed for hearing on 16-2-1983-0n that day the appellant filed an application for adjournment with a medical certificate on the ground of illness-The prayer for adjournment was not granted and the suit was decreed ex parte on that date. ­Miscellaneous Case under Order IX, rule 13 of the Code of Civil Procedure was started- Then again the case was fixed for hearing on 26- 7-1983-The appellant unsuccessfully moved another application for examination of her doctor on 13-9- 1983 and on 1-11-1983 the Miscellaneous Case was dismissed-High Court Division refused to interfere with the order.
Held: Appellate Division allowed the appeal setting aside the orders of the courts below after considering the facts and circumstances of the case.
Khaleda Roushan Ara vs Nurul Huq (Md) 42 DLR (AD) 48. ....View Full Judgment

Appeal-Effect of its disposal-'Appeal' which has not been defined in the Code, is meant to be an application by an aggrieved party asking an appellate Court to set aside, modify or revise a decision of a subordinate court-an 'appeal' even if irregular, incompetent or time-barred is nonetheless an appeal-the order of dismissal of a memorandum of appeal as time-barred comes within the deeming provision of section 2(2) of the Code, because by such an order the rights of parties with regard to matters in dispute are finally determined.
Abdul Mannan vs Jobeda Khatun & others 44 DLR (AD) 37. ....View Full Judgment

Ex parte decree-Delivery of possession of the land given in execution of the ex parte decree­Whether the trial Court which passed the ex pane decree on being satisfied that the summons was duly served upon the defendant by recording a finding to this effect has jurisdiction to go against its own finding and set aside the ex parte decree passed by the trial Court itself, although the defendant did not depose on oath before the Court that he had not received the summons.
Md Insan Ali vs Mir Abdus Salam 40 DLR (AD) 193. ....View Full Judgment

It will be wholly inequitable to permit the defendants to prove their facts in this Court after l 0 years. The defendants must take the consequence for their own laches.
Red Sun Limited& others vs Uttara Bank 51 DLR (AD) 256. ....View Full Judgment

Order 5 rule 3(2) of the Code of Civil Procedure provides that when the court is convinced on the prayer of the opposite party that the personal appearance of the plaintiffs is necessary for ascertaining any dispute on the day of appearance of the defendant, it shall make an order for such appearance. When an order is made for appearance on specified date, the party upon whom the direction is given must appear in court. Consequence of non-compliance is provided in Order 9 rule 12, that is to say, the provisions of Order 9 rules 3-8 shall apply. Government of Bangladesh and others:
Nazma Majid: -Vs.- Most. Naznin Be¬gum and others (Civil) 10 ALR (AD) 241-248 ....View Full Judgment

The Code of Civil Procedure, 1908
Order 9 Rule 13 read with
The Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Order XXVI
Review–
Civil Petition for Leave to Appeal was dismissed on the ground that Miscellaneous Case No.40 of 1997 under Order 9 Rule 13 of the Code of Civil Procedure was filed about 6 years after passing of the ex-parte decree dated 27.08.1991 in Title Suit No.347 of 1982 without any application under section 5 of the Limitation Act for condonation of delay as such an application is to be filed within 30 days from the date of ex-parte decree or within 30 days from the date of knowledge of the ex-parte decree in question. The Miscellaneous Case was filed after a lapse of 11(eleven) months from the alleged date of knowledge without any application for condonation of delay and the same was accordingly held to be barred by limitation. We do not find any cogent reason to review the impugned judgment. .....RAJUK =VS= Momtaz Hasan Chowdhury, (Civil), 2018 (1) [4 LM (AD) 319] ....View Full Judgment

The Code of Civil Procedure, 1908
Order IX, rule 13 read with
Limitation Act, 1908
Section 5
The Appellate Division observed that it is true that the application under Order IX, rule 13 of the Code was filed after 30(thirty) days from the date of the decree, but sufficient explanations were given for filing the same out of time and prayer was made for condoning the delay. But the learned Judge considered nothing. The learned Judge did not also advert the findings and the reasoning of the Subordinate Judge in condoning the delay in filing the application out of time. The only reason assigned by the learned Judge in making the Rule absolute was that the application was filed beyond 30(thirty) days. In the context, the learned Judge failed to consider that section 5 of the limitation was applicable to an application filed under IX, rule 13 of the Code beyond limitation and thus erred in law in interfering with the order of the learned Subordinate Judge. In the result, the appeal is allowed. .....Kashaituli Jame Mosque Waqf Estate =VS= Md. Abdus Salam & others, (Civil), 2016-[1 LM (AD) 239] ....View Full Judgment

The Appellate Division held that since the High Court Division did not enter into the merit of the appeal and sent the suit on remand to the trial Court for fresh hearing on the erroneous view of the facts and the law as pointed out by the Appellate Division and the Appellate Division has heard both the parties, the Appellate Division consider it proper to send the appeal back to the High Court Division for hearing the same afresh and dispose of the same in accordance with law on the evidence on record.
Immam Hossain Sawdagor-Vs.-Abul Hashem and others (Md. Abdul Wahhab Miah J) 6 ALR (AD) 2015 (2)137 ....View Full Judgment

Ex parte decree– Appointment of guardian for the minor defendants. Since they were not properly represented in the suit, the ex parte decree cannot be sustained– The Court Nazir is not a proper person to be appointed guardian of minors. we find from Order No.6 dated 13.11.1989 that the Court guardian submitted a report to the effect that the minors do not have any title or interest in the suit. Such a report is clearly illegal since it is not within the jurisdiction of the Courts Nazir to decide whether any party to the suit has interest in the suit. Also, in submitting such report, he is clearly acting against the interest of the minor defendants.
We are satisfied that a substantive legal point has been raised in respect of the appointment of guardian for the minor defendants. Since they were not properly represented in the suit, the ex parte decree cannot be sustained, and is thus liable to be set aside. The appeal is allowed. The trial Court is directed to proceed with the trial of the suit in accordance with law after serving summons upon the plaintiff and all the defendants. ...Anowarul Hoque =VS= Mohammad Tafazzal Mondal, (Civil), 2020 [9 LM (AD) 305] ....View Full Judgment

The Code of Civil Procedure, 1908
Order IX Rule 13
President Order No.142 of 1972
Article 6
The remedy under Order IX Rule 13 of the Code of Civil Procedure is not available if the appeal is disposed of prior thereto. But before disposal of the appeal trial Court which passed the ex-parte decree against defendant Nos.2 to 5 is competent to hear and dispose of an application filed under Order IX Rule 13 of the Code of Civil Procedure. President Order No.142 of 1972 in unequivocal terms stated in Article 6 that no person shall, without joining the Government which shall be a necessary party, file or proceed with any suit for specific performance of contract relating to transfer of immoveable property or for declaration of title to, or assertion of ownership of any such property.
Defendant No.1, Government of Bangladesh, represented by the Deputy Commissioner, Gazipur was impleaded in the suit as proforma-defendant No.2 in violation of President’s Order No.142 of 1972. This civil appeal is dismissed without any order as to costs. ...Jamuna Builders Ltd. =VS= Government of Bangladesh, (Civil), 2020 [9 LM (AD) 308] ....View Full Judgment

Order 10 rule 2 authorises the court at any stage of the proceeding to examine orally any person able to answer any material question relating to the suit. The examination is not for the purpose of taking evidence, but for the purpose of ascertaining the real matter in controversy. This examination enables the court to narrow down the controversy and the court should regularly press it into service. Government of Bangladesh and others:
Nazma Majid: -Vs.- Most. Naznin Begum and others (Civil) 10 ALR (AD) 241-248 ....View Full Judgment

The Appellate Division observed that Order 10 rule 4 provides the consequence of refusal or inability of the lawyer to answer the queries made by the court. The object of this rule is to get obscure point cleared up by obtaining in-formation from the parties and also if possible to get admissions so as to narrow down the issues. Where a lawyer expresses inability to state further pleadings or where the court requires the personal appearance of the party, it should essentially examine the parties counsel and if it still feels that further elucidation of the point or question is necessary, it may call the party to be present in court in person. The non-appearance of a party on the date fixed, the court can pass appropriate order for the interest of justice. If he fails to appear in person without lawful authority, the court may also pronounce judgment against such party. The court may also make such order in relation to the suit as it thinks fit. Government of Bangladesh and others:
Nazma Majid: -Vs.- Most. Naznin Begum and others (Civil) 10 ALR (AD) 241-248 ....View Full Judgment

Interrogatories may be delivered only with the leave of the court and it is in the discretion of the Court to grant or not to grant leave. In the facts of the case, the learned trial Court rightly exercised his judicial discretion in refusing to grant leave.
Moon Garments Industries and others vs Janata Bank, Foreign Exchange Corporate Branch and others 50 DLR (AD) 72. ....View Full Judgment

The provision of Order XI, rule 8 of the Code of Civil Procedure is directory in character and the court is yet possessed of powers to extend time in a proper case.
Bisheswar Bhattacharjee vs Shantimoy Bhattacharjee and others 52 DLR (AD) 124. ....View Full Judgment

The foundation for exercise of power under this provision of law is the fulfillment of two requirements-the first is the failure of interrogated party to comply with any order to answer the interrogatory, and the second is the interrogating party applying to the Court to impose the penalty.
Yusuf vs Moftal Ahmed Sowdagar 45 DLR (AD) 178. ....View Full Judgment

After allowing the application under Order 13 Rule 10 of the CPC the appellate Court was not justified at all to take up the appeal for hearing before coming of those records without assigning any reason. The appellate court below should have taken appropriate measures for compelling the authority concerned for sending the records called for by it. Without doing so and without assigning any reason for not doing so the appellate court took up the appeal for hearing. This has not been proper at all. The appellate court below will take all necessary actions for bringing the records called for and if, even after that, those records are not available for any just and valid reasons the appellate court, after stating those reasons, may hear and dispose of the appeal.
Sobha Rani Paul -Vs.- Md. Awlad Hossain 5 ALR (AD)2015(1) 67 ....View Full Judgment

High Court Division misdirected itself in law in holding that the trial Court was not justified in raising the plea of adverse possession suo motu by not framing any issue on this point earlier.
Abdul Jalil Miah (Md) vs Niropama Ritchil and others 49 DLR (AD) 61. ....View Full Judgment

From the facts of the case it is evident that it was totally unnecessary for the Judges to indulge in the discussion on polygamy in Islam which was neither an issue in the suit nor required to be decided in the context of the pleadings of the parties.
Elias (Md) vs Jesmin Sultana 51 DLR (AD) 99. ....View Full Judgment

The plea that the suit was not properly valued and required court-fee was not paid being not an issue in the suit, it cannot be considered for the first time by the Appellate Division.
Mokbul Hossain vs Khandaker Mujibur Rahman 51 DLR (AD) 77. ....View Full Judgment

The plaintiff may take recourse to section 151 for rejection of the set-off, alternatively he may bring the maintainability of the set-off as an issue of law to be decided first.
Sultana Jute Mills Ltd and others vs Agrani Bank and others 46 DLR (AD) 174. ....View Full Judgment

On mixed issues of law and fact, and when the decision on issues of law depends upon the decision of issues of fact the Court has to dispose of all the issues together.
Nurul Majid Mahmood Humayun -Vs.-Brigadier General Kazi Mahmud Hassan PSC (Rtd.) and others. 4 ALR (AD) 2014 (2) 34 ....View Full Judgment

Issue of Law —Issue touching maintainability of Suit.
Learned advocate for the Petitioner submits that the learned Judges of the High Court Division erred in law in not considering the facts and circumstances of the case that the trial court framed the issues on 18.9.1997 and subsequently the suit was posted for peremtory hearing but the suit was Suo Moto withdrawn from the peremtory hearing without giving effect to the applications under Order 11 Rule 14 and Order 11 Rule 21 of the Code of Civil Procedure filed by the plaintiff petitioner and also without considering the ( )rder dated 10.8.2002 wherein it is noted " Benefit the learned Courts below committed error of law in passing the impugned judgment which is against the principle of natural justice and as such the same is liable to be set aside. -We do not find any substance in the points raised. The High Court Division upon correct assessment of the materials on record arrived at a correct decision. We therefore find no reason to interfere with the same.
Saiful Hoque Vs. Bangladesh House Building Finance Corporation 1 7 BLT (AD) 187. ....View Full Judgment

The privilege of a litigant to take out summons to witnesses is subject to the satisfaction of the Court. If the prayer appears to be wanting in bonafides or it is considered as an abuse of the process of the Court, it will be lawful for the Court to refuse the prayer.
Mansur Ali Sikder vs Kanailal Banarjee & others 50 DLR (AD) 14. ....View Full Judgment

Adjournment cannot be allowed as a matter of course, even if both the parties ask for it.
Mahbubur Rahman and others vs Agrani Bank and another 55 DLR (AD) 61. ....View Full Judgment

Ex parte decree—
When to be passed and extent of judgment-Before an ex parte decree is passed, the court is required to go through the records whether such a decree could be passed on the assertionslevidence of the plaintiff, but the court is not required to delve deep into the matter and ferret out a defence plea that may lead to the dismissal of the plaintiffs case.
Alfu Miah and ors. vs Government of the People's Republic of Bangladesh 45 DLR (AD) 112. ....View Full Judgment

Discretionary power given by Order XVIII, rule 17 to recall and examine witnesses must be exercised in accordance· with law and not arbitrarily.
Nurul Islam vs Md Abdur Rashid 37 DLR (AD) 32. ....View Full Judgment

Recalling witnesses– It is also an established principle and a requirement of law that a party to the suit may be given the opportunity to call witnesses and produce any evidence at any time during the trial. The trial does not finish until pronouncement of judgement. …Mortuz Ali Khalifa =VS= Jobeda @ Kalu Bibi, (Civil), 2020 (1) [8 LM (AD) 38] ....View Full Judgment

The defendant did not admit the case of the plaintiff and filed written statement denying the plaintiff’s claim that the suit property was an abandoned property, so it was the plaintiff who had the right to begin the hearing of the suit as per provision of rule 1 of order XVIII of the Code. Rule 2(1) of the Code has clearly provided that on the day fixed for hearing of the suit the party having the right to begin shall state his case and produce evidence in support of the issues which he is bound to prove, the other party shall then state his cause and produce his evidence (if any) and may then address the Court generally on the whole case. Therefore, there was no scope on the part of the plaintiff to avoid examination of witness and state the facts of the plaint at the hearing of the suit. .....Government of Bangladesh =VS= Md. Mizanur Rahman, (Civil), 2018 (1) [4 LM (AD) 138] ....View Full Judgment

Ex parte decree—­When to be passed and extent of judgment - Before an ex parte decree is passed, the court is required to go through the records whether such a decree could be passed on the assertionslevidence of the plaintiff, but the court is not required to delve deep into the matter and ferret out a defence plea that may lead to the dismissal of the plaintiffs case.
Alfu Miah and others vs Government of the People's Republic of Bangladesh represented by the Deputy Commissioner Dhaka & others 45 DLR (AD) ....View Full Judgment

Where a suit is for the recovery of possession of immoveable property and for rent or mesne profits the Court may pass a decree, inter alia, for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit.
Primal Ranjan Das vs Nasima Khatun 49 DLR (AD) 144. ....View Full Judgment

Plaintiff appellant instituted title suit for specific performance of contract against the defendant respondents—the learned Assistant Judge upon considering the evidence in the case by his judgment and decree dated 25.1.84 decreed the suit on contest against defendant No. 1 with cost an ex parte against the rest without cost — it was also directed that “the plaintiff must deposit the balance consideration price of Tk-3000/- by 15.2.1984 failing which the suit shall stand dismissed”—the plaintiff being unaware of the judgment and order dated 25.11.1984 could not make the deposit in time in spite of having the judgment in his favour — admittedly the judgment in the present case was not delivered after the hearing of the arguments on 12.1.1984 and the date for judgment was fixed on 22.1.1984. In the daily cause list of 22.1.1984 the matter did appear for judgment but evidently the judgment was not delivered as the matter appeared for judgment again in the ‘daily cause list’ of 6.2.1984 — Held The party’s and their lawyers source of information about the suit etc. is the ‘daily cause list’/register of the court. There is nothing on record to show that the plaintiff or his lawyer had otherwise any information or knowledge that the judgment would be delivered on 25.1.1984—in the facts and circumstances of the case we hold that there has been a clear miscarriage of justice by reason of non-consideration either by the learned Subordinate Judge or by the learned Judge of the High Court Division of a simple and apparent fact. The omission is such as cannot be adequately deplored—appeal is allowed. [Paras-15 & 16]
Md. Sumon Miah Vs. Falani Begum & Ors. 3 BLT (AD)-221. ....View Full Judgment

Specific procedure for holding auction– Artha Rin Adalat is a Civil Court and subject to the provisions of the Ain, the Artha Rin Adalat have all the powers and jurisdictions under the Code of Civil Procedure, 1908–
In the case of Sultana Jute Mills Ltd. And others Vs. Agrani Bank Ltd. and others reported in 14 BLD(AD) 197 this Division observed that the Artha Rin Adalat Ain is a special legislation providing for special measures to realise loans given by financial institutions. Section 5(4) of the Act gives Artha Rin Adalat the powers and jurisdiction of a Civil Court, but subject to the provisions of the Act itself. Section 5(5) of the Act makes the Code of Civil Procedure applicable to the proceedings of the Artha Rin Adalat but only if the Ain does not contain anything different. Reported in 20 BLD (AD) 162 stating that according to subsection (4) of Section (5) of the Ain the Artha Rin Adalat is a Civil Court having all the powers and jurisdiction under Civil Procedure Code, 1908, subject to the provision of the Ain.
Reported in 8 MLR(AD) page 4 observed that under Section 5(4) of the Artha Rin Adalat Ain, 1990, the Artha Rin Adalat is a Civil Court and subject to the provisions of the Ain, the Artha Rin Adalat have all the powers and jurisdictions under the Code of Civil Procedure, 1908. observed that under Section 5(4) of the Artha Rin Adalat Ain, 1990, the Artha Rin Adalat is a Civil Court and subject to the provisions of the Ain, the Artha Rin Adalat have all the powers and jurisdictions under the Code of Civil Procedure, 1908.
The instant auction was held under Artha Rin Adalat Ain, 1990 which did not provide specific procedure to be followed for holding auction and as to time limit for payment of auction money, the Adalat followed the provision of the Code of Civil Procedure rightly. Consequently, we do not find any force in the submissions.
The appeal is allowed. Judgment and order of the High Court Division is set aside. The impugned orders of the Adalat are hereby declared to have been passed without lawful authority and are of no legal effect. The Adalat shall proceed with the Execution Case in accordance with law. …S.M . Masud Hasan =VS= Judge, Artha Rin Adalat No.3, Dhaka, (Civil), 2019 (2) [7 LM (AD) 117] ....View Full Judgment

Auction sale–
The impugned judgment and order affirming the order of the executing Court and the Appellate Court is set aside. The application filed by the judgment-debtor, the predecessor-in-interest of the appellants under Order XXI, rule 90 of the Code is allowed and the auction sale is set aside. Since the auction purchaser, respondent No.2 has been in possession of the auction sold property initially as a fvovwUqv and then as the so-called auction purchaser and as submitted by Mr Alam, respondent No.2 has not paid any rent for all these period, he needs not be paid any compensation or any solatium over the auction money deposited by him in Court. However, he is entitled to get back the money deposited by him as the auction purchaser. We direct the executing Court to hold fresh auction of the mortgaged property in due compliance with the provisions of law. …Sardar Md Abdur Rahman =VS= Janata Bank Dhaka, (Civil), 2019 (2) [7 LM (AD) 318] ....View Full Judgment

Assignment of interest-When the decree was not finally drawn up there could not be any lawful objection in filing an application under Order XXII rule. 10 of the Code. The Court failed to consider this material aspect that in the suit preliminary decree was drawn and the suit was not completely disposed of and before that stage application for assignment of shares was filed. The High Court Division misdirected itself in holding that the application was one under Order XXI rule 16 by which the question to be decided is whether the applicant is the person entitled to execute the decree but that stage did not reach till then.
Manik Chand Bibi vs Abdul Mutakabbir Chowdhury 44 DLR (AD) 251. ....View Full Judgment

Execution of decree has no nexus with the contempt proceedings drawn for disobedience to the Court's order. Therefore there is no ground to continue the stay of execution of decree after disposal of appeal on the plea of pending contempt proceedings.
Calmare Navigation Co Ltd vs Mohammad Nurul Hoque and another 51 DLR (AD) 35. ....View Full Judgment

When the summonses were duly served and accepted by the trial Court the decree-holder should be allowed to enjoy the fruit of the decree and for filing a subsequent suit further proceeding of the execution case cannot be stayed.
Jabed Ali Sheikh (Md) and others vs Md Abdus Sobhan Sheikh and others 55 DLR (AD) 64. ....View Full Judgment

read with
English Partnership Act, 1890.
Section 23 (1), (2) and (3)
Registration Act [XVI of 1908]
Section 17(1) —The deed of dissolu-tion was not required to be registered under the Registration Act. Under the Partnership Act, a partner-ship has not been given any legal status. It is not a juristic person and the inde-pendent status given to the partnership firm under the Act has to be limited only for the purposes of that Act.
The Appellate Division observed that the deed of dissolution is not required to be registered under the Registration Act. Con¬sequently, the interest in two bighas of land was transferred to the appellants by the deed of dissolution and mutation was rightly accorded in respect of two bighas of land as per clause-4 of the deed of dissolu¬tion of partnership. For the sake of argu¬ment, even if, Annexure-D, the deed of dis¬solution of partnership is construed as an agreement, the heirs of late Noor Hossain are under obligation to execute and register a deed of transfer in favour of the appel¬lants as per terms of Annexure-‘D’. But with a view to frustrating implementation of Annexure-D, the heirs of late Noor Hos¬sain filed the writ petition before the High Court Division. Such an attitude of the heirs of late Noor Hossain is a bizarre hoax and as such, the writ petition itself was not maintainable. The High Court Division er¬roneously came to a finding that a partner¬ship firm has an independent legal entity. Under the Partnership Act, a partnership has not been given any legal status. It is not a juristic person and the independent status given to the partnership firm under the Act has to be limited only for the purposes of that Act.
Dine Ara Begum and others. -Vs.- Ban-gladesh Rubber Industries, a registered Partnership Firm, represented by its Managing Partner, Mr. Ifteker Hussain and others. (Civil) 12 ALR (AD) 100-108 ....View Full Judgment

Since the petitioners were not parties in the Partition Suit and their suit being not by the judgment debtor against the decree holder of the court that passed the decree in the partition suit, provision of Order XXI rule 29 of the Code cannot be availed of by the petitioners.
Abul Bashar and others vs Prafulla Kumar Das and others 56 DLR (AD) 139. ....View Full Judgment

Court has no jurisdiction to entertain an objection under rule 58 after a sale has taken place.
The Appellate Division held that if the sale takes place then, the third party’s objection to such sale is under order 21 rule 90. The Adalat’s power to entertain the application under Order 21 Rule 58 is against attachment only and before the sale takes place. So under this provision a very limited power has been given to an executing court to hold inquiry. Under this rule the Adalat cannot decide complicated questions of title in such application.
Md. Sekandar and another -Vs.- Janata Bank Ltd. and others (Civil) 9 ALR (AD) 81-94 ....View Full Judgment

Since an application under Order XXI rule 32 of the Code for violation of a decree for injunction is maintainable, the Single Bench decision holding that such an application is not maintainable has no force.
Zainal Abedin & another vs Md Abdur Rahim 53 DLR (AD) 69. ....View Full Judgment

A third party can file a complaint in the executing court if he is dispossessed by the purchaser in execution of a decree and in such circumstances, the court has power to hold investigation and if the court is satisfied that the applicant was in possession on his own account, or on account of someone other than the judgment debtor, the court may restore him in possession. Dispossession must be in the course of execution.
The Appellate Division held that under rule 100 a third party can file a complaint in the executing court if he is dispossessed by the purchaser in execution of a decree and in such circumstances, the court has power to hold investigation and if the court is satisfied that the applicant was in possession on his own account, or on account of someone other than the judgment debtor, the court may restore him in possession. Dispossession must be in the course of execution. This provision is very complicated one in view of the fact that it is only after the third party has been dispossessed from the property. Rule 101 provides bona-fide claimants to be restored to possession. The object of rules 100 and 101 is to ascertain the possession of the person who was dispossessed by the purchaser on execution of a decree. The court is concerned with the actual possession of the property which is to be restored to the person who is dispossessed and such person is not claiming a right of his own other than through the judgment debtor.
Md. Sekandar and another -Vs.- Janata Bank Ltd. and others (Civil) 9 ALR (AD) 81-94 ....View Full Judgment

Setting aside auction sale-the High Court Division upheld the sale only on the ground that the son of defendant No. 1 being heir of the judgment-debtor contested the suit and, as such, it must be presumed the son had knowledge of the execution case when he himself was a party in the execution proceeding. High Court Division failed to consider that the decree was put into execution for realisation of decretal costs and the main question was whether the auction sale was legally held and to these material questions no judicial mind was applied. Consequently the judgment is liable to be set aside.
Narayan Chandra Sil vs Manhar Mondal and others 43 DLR (AD) 152. ....View Full Judgment

Alleged trend in the publication and conduct of sale. The appellant could not prove by legal evidence that he could not file the application within time because of fraud or that his applications were within time from the date of his knowledge of such fraud. There was no error in rejecting the applications summarily.
Ahmed Meah vs Ejahar Meah 40 DLR (AD) 276. ....View Full Judgment

Auction sale having taken place and the sale having been confirmed the issuance of sale certificate in favour of the auction-purchaser cannot be withheld by parties not connected with the mortgage suit or the mortgage execution case.
ADC (Rev) and Assistant Custodian vs Tohidul Hossain Chy and others 51 DLR (AD) 117. ....View Full Judgment

The Court's direction restoring bonafide claimant to possession cannot be held back on the ground of institution of a suit claiming present possession of the property.
Abdul Kaiyum (Md) vs Krishnadhan Banik and others 49 DLR (AD) 140. ....View Full Judgment

read with
The Artha Rin Adalat Ain, 2003
Section 32
The petitioners did not deposit security equivalent to 25% of the decretal amount, their application was incompetent– The mortgaged property was sold in auction for the purpose of realization of the decretal amount. At this stage, the petitioners herein on 11.02.2010 filed an application under Order XXI, rules 90 and 91 of the Code and section 32 of the Ain, 2003 claiming the mortgaged property as their own and also asserting their possession therein. As no security equivalent to 25% of the decretal amount was deposited along with application, the Artha Rin Adalat rejected the same by its order dated 16.02.2010. Against this order, the petitioners filed the writ petition and obtained the Rule.
It appears that the learned Judges discharged the Rule on the findings, inter alia, that as the mortgaged property was sold in auction long before the filing of the application by the petitioners under section 32 of the Ain, 2003 and the sale certificate was issued long before the issuance of the Rule on 05.05.2002, the auction sale of the mortgaged property was thus made absolute before issuance of the Rule. So in the circumstances, there was no scope of giving any opportunity to the petitioners to raise any claim in respect of the mortgaged property in the execution case in question.
It further appears that the mortgaged property was sold in auction on 19.01.2010, whereas the application under section 32 of the Ain, 2003 was filed by the petitioners on 11.02.2010. The High Court Division took notice of the fact that the sale certificate of the auction sale was issued on 21.03.2010 and was registered on 22.03.2010, whereas the Rule in the writ petition was issued on 05.05.2010
We endorse the view of the High Court Division that "if the writ petitioner (sic, it would be petitioners) actually is the owner of the mortgaged property in question he can protect his right and title in that property by filing proper suit in a proper forum." The petition is dismissed. …Mohammad Gias Uddin Chowdhury =VS= Ministry of Law, Justice & Parl. Afrs., BD, (Civil), 2020 (1) [8 LM (AD) 322] ....View Full Judgment

It is by now a well settled legal principle that a stranger to a decree cannot invoke the provisions of Order XXI, rule 29 of the Code for staying the proceedings of an execution case and for ready reference. .....Zainab Banu =VS= Md. Nisar Uddin, (Civil), 2017 (2)– [3 LM (AD) 503] ....View Full Judgment

The Code of Civil Procedure, 1908
Order 21, Rule 103 read with
The Artha Rin Adalat Ain
Section 32(1)
Third party to file a suit to establish his right–
The High Court Division has totally overlooked the applicability of Order 21 rule 103 of Code of Civil Procedure so far as it relates to the right of a third party in the property sold. Sub-section (1) of section 32 of the Ain does not debar the applicability of the provisions of the Code of Civil Procedure, if a third party makes an application for setting aside the sale. He can file objection against the sale in accordance with the provisions of the Code, but the scope of investigation being limited, we find no cogent ground to debar a third party to file a suit to establish his right or title if his right is fringed by reason of sale in view of order 21 rule 103. We hold the view that a suit for establishment of right, title and interest in respect of the mortgaged property by a third party is maintainable because there is no specific bar either expressly or impliedly in the Ain to file such suit. .....Sekandar (Md.) =VS= Janata Bank Ltd., (Civil), 2017 (2)– [3 LM (AD) 448] ....View Full Judgment

The maintainability of the second application under Order 21 Rule 38 C.P.C. was challenged on the ground that It was barred by resjudicata, an earlier application having been dismissed by the Artha Rin Adalat. The High Court Division rightly held that the principle of resjudicata is not applicable in such proceeding. [Para-91
Sonali Bank Vs. S. Razia Nahar & Ors 4 BLT (AD)-155. ....View Full Judgment

Public auction of moveable property — In the instant case the auction sale was held on 5.11.88 and the executing court accepted the quotation of the auction purchaser appellant the auction sale of the appellant was formally accepted by the court by its order dated 10.11.88 giving time to the auction purchaser appellant to deposit the entire deed amount by 15.11.88 and the same was duly deposited — sale become absolute and cannot be set aside. [Para- 12]
Fariduddin Chowdhury Vs. M/S Sylhet Glass Works Ltd & Ors 3 BLT (AD)-168. ....View Full Judgment

The story of auction purchase, giving licence of two plots to the plaintiffs and then the execution of the deed of Hiba-Bil-Ewaj have been set up by the defendants during the period between 9th July, 1955 and 21st June,1962 with a view to deprive the plaintiffs from their inherited and acquired property.
Zafela Begum and others Vs.Atikulla and others. 1 ALR (AD)1 ....View Full Judgment

read with
Artha Rin Adalat Ain(VIII of 2003)
section 33(1) - The owner of the mortgaged property being a third party mortgagor, notice under section 33(1) of the Artha Rin Adalat Ain, 2003 was required to be issued upon him, which was not done in the instant case and thereby, the whole process of auction sale was illegal and without jurisdiction.
Sheikh Jarjis Hossain and others -Vs.- Agrani Bank Limited and others 5 ALR (AD)2015(1) 10 ....View Full Judgment

The judgment-debtor claims that the mortgaged property has been sold at a low price but he has not filed any application under Order 21 rule 90 of the Code of civil procedure which is the only forum to dispose of the said dispute. Thereafter the judgment-debtor filed the writ petition on 13th July, 2008. The High Court Division without issuing any rule made the impugned judgment on the basis of the oral submission made by the learned Counsel for the judgment-debtor that the judgment debtor was agreeable to pay the decreetal amount with interest. The judgment-debtor did not file any such application in the executing Court for payment of the decreetal amount nor did he approach the decree-holder to pay the decreetal amount by installments or to resolve the dispute by way of amicable settlement.
An amicable settlement for payment of outstanding dues under the Ain of 2003 can be effected in three stages of a proceedings; the first stage is provided in sections 21 and 22 which can be done at the pretrial stage and the procedure is provided in section 24; the second stage is under section 38 after passing a decree and during the pendency of the execution proceedings; and the last stage is under section 45, which enjoins a borrower or any other defaulter or a judgment-debtor to settle up the dispute at any stage of the proceedings. The judgment-debtor did not avail any of the privileges provided in the Ain, 2003. A privilege is a special right reserved to an individual person or a limited class of persons, bodies or institutions. But this privilege is lost once they infringe it or abandon it voluntarily.
Rules 89, 90 and 91 of Order 21 of the Code of Civil Procedure for setting aside a sale, those provisions of the Code are applicable in execution proceedings. Rule 90 provides for setting aside the sale on the ground of irregularity or fraud. If the act or omission complained of amounts to understatement of value of property calculated to mislead the bidder or the sale at a serious under value or where the contrary to the value of property given in sale proclamation, the Court wrongly mention higher value are grounds on which a sale may be vitiated by gross irregularities. ...Farid Uddin Mahmud =VS= Md. Saidur Rahman, (Civil), 2020 [9 LM (AD) 247] ....View Full Judgment

The heirs of the deceased defendant who are not party to the suit, will not be bound by the decree and in that sense the decree will not be effective against the heirs. If an effective decree can be passed against the other defendants the whole suit cannot abate.
The Appellate Division held that a suit ordinarily abates only against the deceased defendant, unless there are circumstances which would cause an abatement as against one to operate as an abatement against all. Order 22 rule 4(3) lays down in express terms that if no application is made the suit would abate in so far as the interest of the deceased is concerned. If the court can deal with the matter in controversy so far as regards the right and interest of the plaintiff or the defendant other than the deceased defendant, it shall proceed with the suit and decide it. The heirs of the deceased defendant who are not party to the suit, will not be bound by the decree and in that sense the decree will not be effective against the heirs. If an effective decree can be passed against the other defendants the whole suit cannot abate.
Chairman, Rajdhani Unnayan Kartipakkha (RAJUK), Dhaka -Vs.- Manzur Ahmed @ Manzoor Ahmed and others (Civil) 8 ALR (AD) 1-21 ....View Full Judgment

There is no limitation for substitution of the heirs of deceased parties in a revisional application-In a suit for partition, the right to sue survives till final decree is made and heirs of deceased defendants or plaintiffs should be brought on record else complications shall follow.
Hossain (Md) and others vs Dildar Begum and others 55 DLR (AD) 60. ....View Full Judgment

Substitution of the representatives of the deceased respondent when they are already on record in another capacity - ­No abatement.
People's Republic of Bangladesh, vs Abul Kaiser Chowdhury 37 DLR (AD) 85. ....View Full Judgment

The civil revision case having been disposed of two years back there remains nothing for recording an order of abatement in the case which was disposed of on merit by the High Court Division.
Monir Ahmed Fakir and others vs Abdul Jalil Munshi and others 50 DLR (AD) 198. ....View Full Judgment

Proceeding as to tenancy-Substitution-Appellants have kept alive the issue of heritability of monthly tenancy in this appeal and while disposing of the appeal the Court will take note of its latest decision on the subject in 44 DLR (AD) 1 that a monthly tenancy is heritable. The view of the High Court Division that the appellants cannot claim substitution on the basis of the case reported in 32 DLR (AD) 171 is therefore no longer sustainable.
Sharifa Khatun vs Md Yusuf 44 DLR (AD) 285. ....View Full Judgment

Under the law the heirs of a non contesting defendant need not be substituted.
Jalaluddin (Md) and others vs Laily Begum and others 48 DLR (AD) 163. ....View Full Judgment

A legal representative of a deceased party in a suit if brought on record by substitution in any ancillary or related proceeding arising out of the suit, the substitution of the party will hold good for the suit as well and no fresh application to bring the legal representative of the deceased party on the record of the suit would be necessary.
Akhtar Banu vs Habibunessa and others 48 DLR (AD) 164. ....View Full Judgment

The High Court Division erred in proceeding on the basis that on account of non-substitution of only one plaintiff the suit as a whole had abated and the revision had become infructuous. The suit being one for declaration of title the revision is required to be disposed of on merit by the High Court Division.
Nuruzzaman (Md) vs Moazzem Hossain and others 53 DLR (AD) 56. ....View Full Judgment

Assignment of interest-when the decree was not finally drawn up there could not be any lawful objection in filing an application under Order XXII r. 10 of the Code. The Court failed to consider this material aspect that in the suit preliminary decree was drawn and the suit was not completely disposed of and before that stage application for assignment of shares was filed. The High Court Division misdirected itself in holding that the application was one under Order XXI rule 16 by which the question to be decided is whether the applicant is the person entitled to execute the decree but that stage did not reach till then.
Manik Chand Bibi alias Rezian Nahar and another vs Abdul Mutakabbir Chowdhury 44 DLR (AD) 251. ....View Full Judgment

Prayer for withdrawing a suit-As the plaint does not disclose any formal defect, the provision for withdrawal of the suit is not at all attracted. Besides, there had earlier been an order of remand and opportunity to produce all the papers.
Khabiruddin vs Bangladesh 43 DLR (AD) 201. ....View Full Judgment

The withdrawal of suit by necessary implications blots out the effect of the judgments and decrees prior to withdrawal. If the application for withdrawal is allowed and at the same time the decrees passed by the courts below be retained it would create a situation contradictory in terms. An order of setting aside of judgments and decrees in the suit withdrawn should naturally follow.
Abdur Rahman and others vs Kheru Malitha and others 50 DLR (AD) 71. ....View Full Judgment

Withdrawal of the suit with liberty to sue afresh-Plea of formal defects in the schedule to the plaint-Defects can be amended by filing a petition for amendment of the plaint-Discretion vested in the court under Order XXIII, rule 1(2) CPC has been properly exercised-No illegality committed in rejecting revisional application summarily.
Md Badruddin Moral vs Santosh Kumar Sen 41 DLR (AD) 156. ....View Full Judgment

Dismissal of a suit for non-prosecution does not amount to withdrawal of the suit and the plaintiff is not precluded to file a fresh suit on a new cause of action.
Amir Hossain Khairati vs Abdul Aziz Bepari and others 47 DLR (AD) 106. ....View Full Judgment

Compromise between the parties–
The learned judges, just cannot act or be tuned on the submission of the learned Advocate of a party or fanciful wish of a party. Even in case of a compromise by the parties on the basis of joint application, the learned judges must see whether the terms of compromise entered into between the parties are lawful or not as provided in Order XXIII, rule 3 of the Code of Civil Procedure (the Code). .....National Engineers Ltd. & others =VS= Jubak Housing & others, (Civil), 2016-[1 LM (AD) 308] ....View Full Judgment

Held: We find that at any stage of a suit filed by a non-resident foreigner having non- sufficient immovable property in Bangladesh can be directed by the court suo motu or on the application of the defendant to give security for payment of all costs incurred or likely to be incurred by the defendant. There is nothing in the aforesaid provision that such a plaintiff can be directed to give security only after filing of the written statement. It is the discretion of the court to direct such a plaintiff to give security for the cost. If the court finds considering the facts and circumstances of the case that such security is to be furnished either before or after filing the written statement that cannot also be found fault with. But the court should not reject the prayer for furnishing security by such a plaintiff merely on the ground that written statement has not been put in. The court should consider the merit or otherwise of the application before rejecting it. In the instant case the defendant petitioner is not precluded from filing a fresh application for furnishing security by the plaintiff for cost of the suit after filing written statement.
Danish Milk Bangladesh Ltd. Vs. Danish Dairy Board. (AD)-192 ....View Full Judgment

Whether an Advocate Commissioner’s report will go into evidence without examination of the Advocate Commissioner on oath before the Court.
The Appellate Division observed that having gone through the sub-rule it appears that the report of the Commissioner shall be evidence in the suit but not the evidence alone recorded by him. The sub-rule further provides that the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner in the Court touching all the matters referred to his report or as to the manner in which he has made the investigation. Sub-rule (2) of rule 10 consists of two parts. In the first part it has been stated that the re-port of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record. Therefore it appears that the report shall be evidence in the suit and shall also form part of the record. Before start of the second part of this Sub-rule there is a ‘semi-colon’ which signifies that the first part is disjunctive of the second part. The second part beginning with the word ‘but’ states that the Court or any of the parties to the suit may examine the Commissioner personally in open Court touching all the matters of the report and also as to the manner in which he has made the investigation. Having considered both the parts of Sub-section 2, in general, Appellate Division finds that examination of the Commissioner is not mandatory for admitting the report of the Advocate Com-missioner in evidence but if a party files objection against the report of the Advocate Commissioner and prays for examining him in Court, the Court should always allow such prayer. The evidentiary value of the report of the Advocate Com¬missioner may vary if the Advocate Commissioner is not examined in the Court depending upon the facts and circumstances of a particular case. Therefore, the report of the Advocate Commissioner will go into the evidence notwithstanding the non-examination of the Advocate Commissioner in open Court.
Abdun Noor and others -Vs.- Aziruddin and others. (Civil) 13 ALR (AD) 33-39 ....View Full Judgment

Commissioner's report is to be evaluated in the facts of the case on the evidence adduced and the Court has wide discretion in such matter. Mere acceptance of the report should not give rise to any apprehension in the mind of the litigant.
Abul Quasem vs Md Lutfur Rahman 43 DLR (AD) 17. ....View Full Judgment

The report itself of the Advocate Commissioner is not evidence but if the Commissioner deposes on oath before the court then the same is evidence.
Abdus Sattar (Md) and others vs Lalon Mazar Sharif and Seba Sadan Committee and others 56 DLR (AD) 180. ....View Full Judgment

The purpose of section 4 is to see that a transferee outsider does not force his way into a dwelling house in which other members of the transferor's family have right to live. Once the partition decree is made in preliminary form, the rest is for the Commissioner. But the Court at that stage is not concerned as to what direction should be given to the Commissioner for completing the partition.
The Court can only give a limited direction after perusing the Commissioner's report as to which plot is to be partitioned.
Sree Jugal Kishori Sarker vs Azizur Rahman 40 DLR (AD) I 50. ....View Full Judgment

Commissions for local investigation– The purpose of local investigation under this provision is to ascertain the nature and feature and market value etc. of any property. Again, quite clearly this provision is not meant for ascertaining possession of property, which can only be done by taking evidence in the course of trial. We are of the opinion that the High Court Division was in error in making the Rule absolute. The appellate Court rightly rejected the application. The appeal is allowed, without however, any order as to costs. The impugned judgement and order of the High Court Division is set aside. …A.K.M. Fazlul Haque =VS= Bazlur Rahman, (Civil), 2020 (1) [8 LM (AD) 1] ....View Full Judgment

The executing Court has got ample jurisdiction to see whether the possession of the land covered by the pre-empted kabalas has been delivered or not by taking a report from the Advocate Commissioner through local investigation.
Tahera Khatuan -Vs.-Al-haj Arosh Bibi and others. 4 ALR (AD) 2014 (2) 207 ....View Full Judgment

The Government by a Notification dated 14th December 1955 authorised the Military Estate Officer as specified in the Schedule of the said Notification, to sign and verify the plaint or written statement in a suit by or against the Government. Deputy Commissioner not authorised to sign the plaint or written statement and when he does it, the Court must ignore it and proceed as if no plaint or WS has been filed.
Maqsood Alam vs People's Republic of Bangladesh 38 DLR (AD) 290. ....View Full Judgment

Specific provisions having been made in rule I Order XXVII CPC as to the person who is authorised to sign a plaint or written statement on behalf of the Government, provisions in rule 2 of Order 27, have no application in such matters. Provisions of rule 2 are applicable to circumstances not covered by specific provisions made in rule 1 of Order XXVII.
Maqsood Alam vs The People's Republic of Bangladesh 38 DLR (AD) 290. ....View Full Judgment

The order of remand made by the Subordinate Judge in the circumstances of the case should not have been sustained by the High Court Division.
Sukumar Sen vs Gouranga Bejoy Dey 42 DLR (AD) 18. ....View Full Judgment

The duty of the guardian ad /item continues throughout the execution proceeding. By the grossly negligent act of the guardian the minors had suffered substantial injury. Their appeal is therefore allowed and the suit decreed.
Rekha Datta vs Chittagong Urban Co-operative Bank 46 DLR (AD) 133. ....View Full Judgment

A suit in which a plaintiff is minor cannot be compromised without leave of the Court.
Kalitara Biswas vs Mrinal Kanti Biswas 39 DLR (AD) 216. ....View Full Judgment

On perusal of the order of the trial Court it appears that the trial Court came to the findings in as much as, an admitted fact is that the petitioner has a provident fund account where he has Tk.l 1,5337- as balance and that necessarily shows that the plaintiff is owner of the property worth more than Tk.l,0007- and as such he cannot be considered a pauper as contemplated under Order 33 Rule 1 of the Code of Civil Procedure. The High Court Division appreciating the order of the trial Court and submissions of the learned Advocate of the parties has affirmed the judgment of the trial Court holding that the trial Court committed no illegality in coming to the findings that the petitioner has got Tk.l 1,5337- in his provident fund as well as owner of the landed property measuring about 0.70 decimals and as such, the petitioner is not entitled to claim him as a pauper as contemplated under the provision of the Order 33 Rule 1 of the Code of Civil Procedure. - In drawing such conclusions and affirming the order of the trial Court we find the High Court Division committed no error of law warranting interference by this Division.
Md. Abdul Khaleque Vs. Uttara Bank Ltd & Ors 20 BLT (AD) 94. ....View Full Judgment

Refusing to accord permission to institute the suit as being pauper
Held; On perusal of the order of the trial Court it appears that the trial Court came to the findings in as much as, an admitted fact is that the petitioner has a provident fund account where he has Tk. 11,5337- as balance and that necessarily shows that the plaintiff is owner of the property worth more than Tk.l,0007- and as such he cannot be considered a pauper as contemplated under Order 33 Rule 1 of the Code of Civil Procedure. The High Court Division appreciating the order of the trial Court and submissions of the learned Advocate of the parties has affirmed the judgment of the trial Court holding that the trial Court committed no illegality in coming to the findings that the petitioner has got Tk.l 1,5337- in his provident fund as well as owner of the landed property measuring about 0.70 decimals and as such, the petitioner is not entitled to claim him as a pauper as contemplated under the provision of the Order 33 Rule 1 of the Code of Civil Procedure. - In drawing such conclusions and affirming the order of the trial Court we find the High Court Division committed no error of law warranting interference by this Division.
Md. Abdul Khaleque Vs. Uttara Bank Limited & Ors 20 BLT (AD) 256. ....View Full Judgment

In a suit for sale the preliminary decree is drawn up in the same manner as in a suit for foreclosure—the plaintiff-appellant is entitled to interest ‘pendent lite’ i.e. from the date of the institution of the suit up to the date of the passing of the decree. [Paras-18 & 19]
Sonali Bank Vs. M/S Begg and Beg Jute Incorporated Ltd. & Ors. 6 BLT (AD)-174. ....View Full Judgment

Summary suit– High Court Division should not have entertained the dispute in question–
In the writ petition the respondent No.1 suppressed the fact that he already filed Summary Suit No.6 of 1996 in the Court of the District Judge Dhaka under the Provisions of Order 37 Rule 2 of the Code of Civil Procedure which was very much pending at the time of filing of the writ petition. This suppression disentitled the respondent No.1 to claim any relief in writ jurisdiction as there could be conflicting decisions. Further the High Court Division should not have entertained the dispute in question, not to speak of disposing the writ petition in such an hasty manner. The order passed by the High Court Division is not an speaking order. So the judgment and order of the High Court Division cannot be sustained. .....Agrani Bank =VS= Ansarul Hoque, (Civil), 2018 (2) [5 LM (AD) 414] ....View Full Judgment

In the aforesaid premises, the proceeds of the letter of credit do not squarely come within the provision of Order XXXVIII rule 5 for attachment before judgment for which the Court could interfere asking for furnishing security or by attachment before judgment in order to satisfy any possible decree that may be passed in the suit. Gooryonly (BD) Textile Ltd vs Chartkar Information Holding Ltd and ors 54 DLR (AD) 70. ....View Full Judgment

The power of attachment before judgment being a power interfering with a party's right to enjoy its own property, the court should be circumspect in allowing the prayer for such attachment. Islam Steel Mills Ltd vs Nirman International Ltd and others 50 DLR (AD) 21. ....View Full Judgment

read with
Specific Relief Act [I of 1877]
Section 55 —Where a party raises constructions in violation of interim in-junction and obstructs the right of way, the Court can order for demolishing the construction.
The Appellate Division held that disobedience of an order of injunction is a punishable offence under Rule 2(3) of Order 39 but this disobedience of an order of in-junction 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. Md. Azizur Rahman Chowdhury -Vs.- Tauhiduddin Chowdhury and others (Civil) 12 ALR (AD) 143-146 ....View Full Judgment

Whether a co-sharer in specific and separate share of the ejmali property is entitled to retain his possession till legal partition by injunction against another co­sharer threatening dispossession.
This appeal has been brought by special leave to consider a question of considerable public importance. It is whether a co-sharer in ejmali property, when he has been in exclusive possession of a specific and separate share thereof, well demarcated by boundaries, is entitled to retain his possession till legal partition, by an order of injunction against another co-sharer who threatens him with dispossession.
High Court Division, on an erroneous view of law, reversed the decision of the trial Court and the lower appellate Court rightly answered the question that injunction can be granted against a co-sharer who threatens another co-sharer with dispossession. The only question of law agitated in the suit all through was whether an injunction could issue at the instance of a co-sharer in exclusive possession of a separate and well-defined share against another co-sharer who threatens the former with dispossession. This question was rightly answered by the trial Court and the appellate Court but the learned Single Judge on an erroneous view of law reversed their decision. Moharram Ali vs Mahammad Madhu Mia 41 DLR (AD) 92. ....View Full Judgment

A relief of temporary injunction cannot be granted for the mere asking of it.
A relief of temporary injunction cannot-be granted just for the' mere asking of it after filing of a suit as has practically been done in his case. The principles governing the exercise of discretion in such matter are well known and have also been indicated above as are relevant for the present purpose. In view of the foregoing discussion we must hold that the exercise of discretion in the instant case has not been made upon correct judicial principles. Bangladesh Sericulture Board vs Md Fazlur Rahman Akunjee 41 DLR (AD) 25. ....View Full Judgment

No injunction can be granted against operation of bank account and withdrawal of the money in deposit as per terms of contract. The account being opened with a specific condition setting the act of operation of payment, the Bank is bound to comply with the condition on which it has accepted the deposit. Ziauddin Ahmed and others vs Arab Bangladesh Bank 53 DLR (AD) 107. ....View Full Judgment

Temporary injunction-Question of issuing such injunction in a suit for declaration simpliciter. If the suit is otherwise maintainable and it is found that the defendant without being in possession, wants to disturb the plaintiffs possession, the court cannot be powerless to grant temporary injunction in an appropriate case. An order granting injunction must be a speaking order. Ramani Marak vs Jamini Marak 46 DLR (AD) 51. ....View Full Judgment

Temporary injunc­tion cannot be granted as it would lead to interference with and ultimately frustrate the order of the Court which was passed in the suit under section 9 of the Specific Relief Act. Monowara Begum vs Syed Ashrafuddin 40 DLR (AD) 251. ....View Full Judgment

Injunction against execution proceeding, when proper-Bank's suit for recovery of money from its debtor ended in a compromise decree permitting the debtor to sell the mortgaged property at Tk 7 lakh to clear bank­debt and the debtor was to make up shortfall. The debtor made an agreement with appellant for sale of the property for Taka 6 lakh. When the Bank started Execution Case for sale of the mortgaged property, the appellant filed a suit for specific performance of his contract against the debtor and the Bank, on the basis of the agreement, with a prayer for injunction, which was allowed. On appeal, the High Court Division set aside the injunction order omitting from consideration the material points i.e. payment of money and possession of the land by the appellant-High Court Division did not properly exercise its discretion in interfering with the trial Court's order of injunction. Momin Miah vs Moinuddin Hossain 42 DLR (AD) 175. ....View Full Judgment

The plaintiffs got a temporary injunction restraining defendant No.1 from disturbing their possession in their specific areas. The order of injunction was violated by defendant No. 1 who was held guilty, convicted and sentenced to civil imprisonment. The conviction was upheld by the District Judge but set aside by the learned Single Judge, who took an erroneous view of law. Moharram Ali vs Mohammad Madhu Mia 41 DLR (AD) 92. ....View Full Judgment

Rule 7 of Order XXXIX was not attracted to the seizure of accounts books. The case of Padam Sen and another vs State of UP AIR J96J(SC) 218 arose out ofa suit for realisation of money on the basis of a promissory note alleged to have been executed by the defendants in favour of the plaintiff. The defendants apprehended that the plaintiff would fabricate his books of accounts with respect to payments made by them and applied for the seizure of the account books. The Indian Supreme Court held that accounts books were not the subject matter of the suit, and rule 7 of Order XXXIX of the Code was not attracted. Md Mobarak Hossain vs Md Mustafa Hossain 40 DLR (AD) 20. ....View Full Judgment

Permanent injunction–
The plaintiffs have also filed an application under Order 39, Rules 1 and 2 read with section 151 of the Code of Civil Procedure for temporary injunction till disposal of the original suit for permanent injunction. The trial Court issued notice upon the defendant to show cause as to why an order of temporary injunction should not be passed in respect of the suit land within seven days of receipt of the notice.
Being aggrieved, the defendant filed Civil Revision No.19 of 2012 before the District Judge, Cox's Bazar which was allowed and accordingly the plaint of the plaintiffs was rejected.
Being aggrieved by and dissatisfied with the aforesaid judgement and order of the revisional Court, the plaintiff filed Civil Revision No.2101 of 2014 before the High Court Division. A Single Bench by the impugned judgement and order discharged the Rule. Hence, the plaintiffs filed this petition for leave to appeal.
We are inclined to set aside the judgement and order of the High Court Division as well as the judgement and decree passed in Civil Revision No.19 of 2012 dated 24.04.2014 by the learned District Judge, Cox's Bazar. The order of the trial Court dated 01.10.2012 in restored. The trial Court is directed to dispose of the suit in accordance with law. This civil petition for leave to appeal is disposed of. ...Kari Moulavi Abdul Gafur =VS= Mohammad Nurullah, (Civil), 2019 (1) [6 LM (AD) 190] ....View Full Judgment

The Appellate Division is loathe to interfere in the matter of appointment of a receiver unless the circumstances are of such an exceptional nature that refusal might entail a risk of clear abuse of process or some gross injustice. Akhteruzzaman vs Ali Amjad Khan and others 50 DLR (AD) 199. ....View Full Judgment

No order for appointment of receiver should be passed to deprive a de facto possessor of the property. Kamiruddin and others vs Md Mokshed Ali Biswas and others 48 DLR (AD) 14. ....View Full Judgment

Mere filing of an appeal is not sufficient to warrant stay of execution of a decree. Stay is a matter of discretion of the Court.
In view of the hardship to which the appellant might be put in case the entire decretal amount is to be paid by him at once, half the decretal amount should be paid whereupon the execution proceeding may be stayed. Out of the decretal amount Taka one lac is to be paid within two months and the respondent is to furnish security for refund of the amount. Anwar Hossain Bhuiyan vs Shaikh Moslem Ali 42 DLR (AD) 158. ....View Full Judgment

Appoint a receiver– Receiver should be appointed in a suit for partition with the consent of the parties, especially where the family property consists of land–
The trial Court appointed receiver without assigning proper reason as contemplated under Order XL Rule I of the Code of Civil Procedure. On the other hand the appellate Court taking into consideration all aspects of the case reversed the order of learned Joint District Judge appointing receiver. The High Court Division, however, concurred with the cryptic and slipshod order passed by the trial Court appointing receiver in respect of the suit land.
In the present case, the plaintiffs could have filed an application praying for restraining the defendants by an order of temporary injunction from selling the suit land without prior permission of the Court but they failed to do so.
In a suit for partition not merely the interest of the plaintiffs but also the interest of all the parties to the suit need be protected. The power to appoint a receiver as conferred by Order 40, rule 1 of the Code of Civil Procedure, therefore, should, therefore, be sparingly used. The provisions for the appointment of a receiver is to be considered as one of the harshest remedies for the enforcement of rights to property.
The present suit for partition has been pending before the trial Court. Therefore, we are of the view that instead of dragging the case in this Division, it would be proper to dispose of both the leave petitions to enable the trial Court to dispose of the suit as expeditiously as possible. Both the petitions are disposed of and the impugned judgment and order passed by High Court Division is set aside. The plaintiffs will, however, be at liberty to file an application praying for restraining the defendants by an order of temporary injunction from selling any portion of the suit land without prior permission of the trial Court, if so advised. ...Umme Shaheda Akhter Rina(Most.) =VS= Ayub Ali, (Civil), 2020 [9 LM (AD) 538] ....View Full Judgment

read with
Arbitration Act, 1940
Sections 14 and 17 —Deposit of award money or furnishment of security envisaged in section 33 of the Arbitration Act is a condition precedent for entertainment of an application challenging the validity of an award and that without depositing of award money or furnishment of security, the application in the form of written objection would be no application or objection in the eye of law.
Though, neither the Arbitrator nor the trial Court granted interest, the High Court Division in exercise of power con-ferred upon it under order XLI Rule 33 of the Code of Civil Procedure can grant interest.
Whether Order XLI Rule 33 of the Code of Civil Procedure is applicable in the Arbitration Act.
The Appellate Division observed that if the trial Court had not awarded interest as provided in section 29 of the Arbitration Act, the appellate Court has/had ample power under Order XLI Rule 33 of the Code of Civil Procedure to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power could be exercised by the Court in favour of all or any of the respondents or parties although such respondent or parties may not have filed any appeal or objection. In the suit, interest was prayed for from 07.06.1995 which is the date of the pronouncement of the award till realization and this interest was neither prereference period interest nor pendente lite interest but future inter-est, i.e., from the date of award till realization of the money and this prayer appears to be in accordance with justice and fairness. Though, neither the Arbitrator nor the trial Court granted interest, the High Court Division in exercise of power conferred upon it under order XLI Rule 33 of the Code of Civil Procedure can grant interest. Award had been given on 07.06.1995 and the ordeal on the part of the respondent cross-objector started from the date of award and he had to wait a long period to receive the fruit of the award. Having considered the pros and cons of the matter, the High Court Division was of the view that the respondent cross-objector would get interest on the award amount of Tk. 58,00000/- at 5% per annum from the date of award, i.e., from 07.06.1995 till the date of payment of the amount to respondent cross-objector. Appellate Division does not find any error on the finding of the High Court Division in respect of interest.
Chittagong Steel Mills Limited -Vs.- MEC, Dhaka, House (Civil) 12 ALR (AD) 113-117 ....View Full Judgment

Non-appealing defendant - Condition for impleading such a defendant in the appeal-An appeal can be filed by some of the defendants when it proceeds from a ground common to all the defendants. But the appeal which was incompetent at its inception for omission to implead a necessary party would remain incompetent till the end of it, unless otherwise during the pendency of the appeal necessary parties are brought on record.
Anwara Begum vs Shahanewaz 43 DLR (AD) 156. ....View Full Judgment

The provisions of the Code not inconsistent with the Order being made applicable to Election Petition and the appeal being the continuation of the Election petition, the provisions of the Code which do not bar dispensing with service of notice to the non­contesting parties are applicable to appeal arising out of election petition.
Moulana Delwar Hossain Saydee vs Sudhangshu Shekhar Halder and others 51 DLR (AD) 171. ....View Full Judgment

Order XLI, rule 14(3) of the Code has given ample power to the High Court Division to dispense with the service of notice upon the non-contesting respondents.
Shahe Alam (Md) vs Md Golam Sarwar and others 52 DLR (AD) 164. ....View Full Judgment

The previous conduct of the respondent may. be reprehensible but the matter (restoration of the appeal) cannot be decided on the ground of mere previous conduct. Whether he was prevented by sufficient cause from appearing when the appeal was called on for hearing will determine the outcome of the proceeding under Order XLI, rule 19 CPC.
Mrinal Kanti Guha & others vs Brajendra Lal Dhar & others 44 DLR (AD) 9. ....View Full Judgment

Non-appealing defendant-Condition for impleading such a defendant in the appeal-An appeal can be filed by some of the defendants when it proceeds from a ground common to all the defendants. But the appeal which was incompetent at its inception for omission to implead a necessary party would remain incompetent till the end of it, unless otherwise during the pendency of the appeal necessary parties are brought on record.
Anwara Begum and others vs Shahanewaz and another 43 DLR (AD) 156. ....View Full Judgment

Remand is not to be granted as a matter of course-when registration was done under section 60 of the Registration Act and the requirement oflaw was fulfilled; prayer of remand does not merit consideration as the defendants did not adduce any evidence to rebut the presumption attached to the registration made under law.
ADC, Rev and Asst. Custodian Vested Property, Chandpur vs Tafurnessa 41 DLR (AD) 124. ....View Full Judgment

Co-sharers in a partition suit-Remand in the interest of justice­The appellants produced documents in support of their case though they, women and minors being heirs of plaintiffs brother, could not put any witness in the box for want of proper legal advice-A case for remand has been made out.
Jobeda Khatun vs Hamid Ali 40 DLR (AD) 101. ....View Full Judgment

The Court will not decide a point especially in the interlocutory matter which will not advance the cause of justice. It will merely delay the process of coming to a conclusion as to claim and counter-claim which can only be thrashed out in the pending suit.
The Dhaka Dyeing and Manufacturing Co Ltd vs Agrani Bank 42 DLR (AD) 60 ....View Full Judgment

Substantial cause' explained-Additional evidence may be allowed to be led at the appellate stage if facts disclose that one of the parties to the proceedings withheld some material evidence to prejudice of the other party which the other party got to know and secured by having access to them at a later stage.
Rahela Khatun vs Fayezuddin Shah 38 DLR (AD) 6. ....View Full Judgment

Reversal of the trial Court's findings that "Pitamber and after his death his heirs had been possessing the suit land" by the learned Sub-Judge by ignoring altogether material facts and documents. The learned Sub-Judge also held without any basis that "It is presumed that Samad Ali's tenancy right continued" though there is no evidence of possession of the plaintiff predecessors' right from the beginning of the present century upto 1963 when the plaintiffs allegedly purchased. These findings as to Samad Ali's and plaintiffs' possession cannot be legally sustained. Further the learned. Sub-Judge without considering the finding of the trial Court that the plaintiffs failed to prove that the defendant Nos. 4- 6 were the heirs of Samad Ali just in one sentence found that "the plaintiffs have sufficiently proved that their vendors are heirs of Samad Ali." Such a finding ought not to have been allowed to stand in revision when the same was raised as the first ground. Appeal allowed.
Nur Ahmed vs Nur Ahmed 40 DLR (AD) 175. ....View Full Judgment

The appellate Court can pass any order as the case may require "notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection".
Md Osman Gani vs Kulsum Bibi 37 DLR (AD) 63. ....View Full Judgment

Hearing of appeal from both the sides on merit without pronouncing judgment cannot dismiss the appeal for default– The law has provided the provision that judgment shall have to be pronounced in open Court at once or any other day and there is no room to dismiss the appeal for default. Therefore, the order of dismissal recorded while appeal was fixed for judgment by the learned Additional District Judge, 5th Court, Dhaka and judgment of the High Court affirming the same by the single Judge caused serious miscarriage of justice
It is clearly visible that the single Judge of the High Court Division failed to appreciate the provision for direct re-admission as contemplated in Rule 19A, order XLI of the Code; rather misconstrued the provision of law. We are, therefore, of the view that a Court of appeal on concluding the hearing of appeal from both the sides on merit without pronouncing judgment cannot dismiss the appeal for default. Accordingly, the appeal is allowed. …Mahmuda Khatun =VS= Hamida Begum, (Civil), 2020 (1) [8 LM (AD) 74] ....View Full Judgment

When the appellate Court finds inconsistent, contradictory or unworkable order it is in that case alone the appellate Court would exercise its power Order 41 Rule 33 of the Code of Civil Procedure and not otherwise. We are of the view that the plaintiff without filing a cross-objection and attacking the decree of the trial Court by taking specific ground is not entitled to get the relief of setting aside the decree under Order 41 rule 33 of the Code of Civil Procedure. …Alimuzzaman (Reza)(Md.) =VS= Masudar Rahman(Md.) @ Babul, (Civil), 2020 (1) [8 LM (AD) 164] ....View Full Judgment

Praying for declaration of title–
Order XLI Rule 27 of the Code of Civil Procedure provides:
"27 (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined." .....Harunur Rashid & others =VS= Mosammat Yarun Nissa & others, (Civil), 2016-[1 LM (AD) 385] ....View Full Judgment

It should be kept in mind that re-admission of appeal under Rule 19 is a discretionary power of the court and the settled principle of law is discretion is to be exercised in a judicious manner having regard to the facts and circumstances of the case. .....Bangladesh =VS= Abdul Barek Bepari, (Civil), 2017 (2)– [3 LM (AD) 93] ....View Full Judgment

To invoke the amended Rule 19A, the application for such re-admission is to be filed within 30 days of the date of dismissal of the appeal for default and the application is to be supported by an affidavit. If these two requirements, as provided in the proviso, are met only then Rule 19A could be applied to avoid delay and expedite disposal providing the court to directly re-admit the appeal without requiring to adduce evidence as required under Rule 19. .....Bangladesh =VS= Abdul Barek Bepari, (Civil), 2017 (2)– [3 LM (AD) 93] ....View Full Judgment

It has long been held that under Order 41 Rule 17 CPC the use of the word may” does not mean that it is open to the Appellate Court to dispose of the appeal on merit in the absence of the appellant. [Para-4]
Govt. of Bangladesh &Anr Vs. Waqer Ahmed & Ors 7 BLT (AD)-367. ....View Full Judgment

The Appellate Division found that the High Court Division did not say anything on the merit of the case. Appellate Division sent back the case to the High Court Division for hearing afresh.
The Appellate Division found that it appears that both the Courts below particularly the Appellate Court discussed the evidence on record and gave its finding on each and every issue. Therefore, we failed to understand what the High Court Division wanted to mean by referring to Order XLI, rule 31 of the Code. Be that as it may, since the High Court Division did not say anything on the merit of the case and sent the case back to the Appellate Court. Appellate Division finds no other alternative but to send back the revision to the High Court Division for hearing afresh and dispose of the same on merit in accordance with law on the evidence on record. .....Rahima Begum & others =VS= Lal Mia & others, (Civil), 2016-[1 LM (AD) 162] ....View Full Judgment

It also appears the appellate Court failed to appreciate that the even though the stolen trees were recovered from the possession of Ahamedullah, the purchaser of Lot No.10, no case was filed against Ahamedullah and further no cases were also filed against the purchasers of the contiguous plots. We are of the view that the High Court Division on proper consideration of the evidence and the materials on record made the Rule absolute. The learned counsel for the appellant also could not point out any illegality or infirmity in the decision of the High Court Division so as to call for any interference. .....Divisional Forest Officer, Cox’s Bazar =VS= Abdur Rahim Chowdhury, (Civil), 2018 (2) [5 LM (AD) 379] ....View Full Judgment

Remand–
The order of remand made by the High Court Division is not covered by Order 41 Rule 23 of the Code of Civil Procedure. We do not approve of remanding a suit on such flimsy grounds. The appeal is allowed and the impugned judgment delivered by the High Court Division is set aside. The matter is remanded to the High Court Division and the Division Bench presided by Farid Ahmed, J. shall dispose of the appeal on merit within 3 (three) months from the date of receipt of a copy of the judgment. .....Lutfur Rahman =VS= Abdul Malek Gazi, (Civil), 2018 (1) [4 LM (AD) 268] ....View Full Judgment

Alibi- When can be taken—
Alibi as a defence can only be taken at the time of trial. Magistrate is not competent to discharge an accused merely on the filing of some papers supporting alibi. Such an order of discharge passed by Magistrate at pretrial stage is grossly illegal and is not sustainable in law.
Nannu Gazi Vs. Awlad Hossain-43 DLR (AD) 63. ....View Full Judgment

As to the new concept of 'proportionality' as a ground for judicial review it is absolutely a new concept to our jurisprudence - In accepting it, this court shall have to accord different weights to different ends or purposes and different means which cannot be allowed in a review.
Ekushey Television Ltd and another vs Dr Chowdhury Mahmood Hasan and ors 55 DLR (AD) 26. ....View Full Judgment

What is required to be protected is the interest of the general public from abuse of power by the executive, the most eloquent aspect of this case-In public interest litigation the court will lean to protect the interest of the general public and the rule of law vis-a-vis the private interest-Where the rule of law comes into conflict with third party interest the rule of law will, of course, prevail.
Ekushey Television Ltd and another vs Dr Chowdhury Mahmood Hasan and ors 55 DLR (AD) 26. ....View Full Judgment

Maintainability of application under section 151 CPC for setting aside an order cancelling an earlier order dismissing a Miscellaneous Case under Order IX r. 13. The effect of an order of dismissal of the Miscellaneous case for default is one of rejecting an application to set aside a decree passed ex parte. It is not an order passed on merit, but ex parte. The view taken by the High Court Division that appeal lies in both cases is correct. This is not to say that the application under section 151 CPC is barred under all circumstances. Since the application under section 151 in the present case was filed 7 days after dismissal of the miscellaneous case for default without any explanation for the delay, such application could not be justified.
Abdul Kader Chowdhury vs Nurul Islam 43 DLR (AD) 128. ....View Full Judgment

The matter of rate of conversion of US dollar into Bangladesh currency was not argued at the time of hearing of the appeals. The matter cannot be decided without hearing the parties afresh. This court's judgment is therefore not amenable to review on this score. It will be an appeal in disguise if a fresh argument is entertained. Our omission to allow rate of conversion on the date of payment seems to be partly circumstantial and partly deliberate. An appeal before this Court on the specific point of rate of conversion would have brought the issue in a sharp focus and we could have given our thoughts to it. This is the circumstantial part. The deliberate part is that even in the Table produced by the learned Counsel for the petitioner at the hearing of the two appeals it was not indicated that the rate of conversion as on 1-7-77, shown in the Table, was only tentative and that a further amount in Bangladesh currency would be due if the rate.of conversion on the date of payment was ordered. When the petitioner is unmindful of Article 28, a court of law has no independent duty to enforce Article 28, like section 3 of the Limitation Act. If an applicant wants enforcement of Article 28 and any contract in that behalf it has to ask for it.
Bangladesh Shilpa Rin Songstha vs Haque Brother (Carbide) Ltd 46 DLR (AD) 39. ....View Full Judgment

A review was never meant and allowed to be utilised as another opportunity for rehearing the matter which is already closed by a final judgment. Nurul Hussain vs Government of the People's Republic of Bangladsh 49 DLR (AD) 108. ....View Full Judgment

Unless a prayer for review is based on the grounds mentioned, the Court will not sit on the matter again for a re­hearing or further hearing which is already concluded by decision. Fazle Karim and others vs Government of Bangladesh 48 DLR (AD) 178. ....View Full Judgment

Review may be granted only for sufficient grounds akin to those of Order XLVII rule 1 of the Code. To permit a review on the ground claimed by the petitioners will amount to rehearing of the matter and our sitting on appeal over our own judgment which is not permissible in law. Abul Hossain and 3 others vs Bangladesh represented by the Secretary, Ministry of Land and others 51 DLR (AD) 116. ....View Full Judgment

A wrong decision on interpretation of certain provision of law or principle laid down in a decision relied upon by a court are no grounds for review. Zenith Packages Limited vs Member Labour Appellate Tribunal Dhaka and others 52 DLR (AD) 160. ....View Full Judgment

The High Court Division does not appear to have committed any error of law by not giving a chance to the petitioner to try its luck once again on the plea of discovery of additional evidence. Islamic Foundation Bangladesh vs Firoz Alam and others 53 DLR (AD) 48. ....View Full Judgment

The Code of Civil Procedure, 1908
Order XLVII, rule 1 read with
The Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Order XXVI
Review–
Admittedly, it is not a case of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the defendant-petitioner or could not be produced by him at the time when the judgment sought to be reviewed was passed. In the review application as many as 7(seven) grounds have been taken and all grounds relate to the factual aspect of the case. It is clear that the leave petition was dismissed considering the factual aspect of the case which was found against the defendant by all Courts and as already stated hereinbefore, the petitioner failed to pin point any ground for review within the meaning of Order XLVII, rule 1 of the Code of Civil Procedure in the review application and as such, we find no reason to review the judgment and order passed by this Division dismissing the leave petition. .....Mozzammel Haque(Md.) =VS= Md. Abdus Salam, (Civil), 2018 (1) [4 LM (AD) 275] ....View Full Judgment

The Code of Civil Procedure, 1908
Order 47, rule 1 read with
The Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Order XXVI
Review– No ground at all for reviewing–
It appears that both the Administrative Tribunal and the Administrative Appellate Tribunal found that the original Administrative Tribunal case was filed beyond the statutory period of limitation and as such was not maintainable. This Division also considered this point of limitation and found that the Administrative Tribunal case was barred by limitation. So we find no ground at all for reviewing the judgment and order of this Division. There is no mistake or error apparent on the face of record nor any other grounds mentioned in Order 47, rule 1 of the Code of Civil Procedure for reviewing the judgment and order sought to be reviewed. This review petition is dismissed. .....Juhaque Ali (Md.) =VS= Government of Bangladesh, (Civil), 2018 (1) [4 LM (AD) 266] ....View Full Judgment

The Code of Civil Procedure, 1908
Order XLVII rule 1 read with
The Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Order XXVI
Review–
The learned Advocate for the review petitioners though has made submissions trying to point out some error in the judgment under review but could not make out any ground for review of the said judgment and order. The grounds for review of any judgment and order has been enumerated in Order XLVII rule 1 of the Code of Civil Procedure. The learned Advocate for the leave petitioners could not establish any of these grounds for review of the judgment and order in question. The pleas of the defendant-petitioners- that the High Court Division and also this Division did not consider at all the facts that the plaintiffs’ case that Kabir Ahmed died in the year 1970 has not been proved and that the plaintiffs could not prove the genuineness of their alleged title deeds- are not correct at all. This Division and also the High Court Division have considered both these defence pleas meticulously and come to a definite finding. There is no ground for review of the judgment and order in question and hence this review petition is dismissed. .....Jalalabad Co-operative Housing Society Ltd.=VS=Mst. Roushan Jahan, (Civil), 2018 (1) [4 LM (AD) 261] ....View Full Judgment

The Code of Civil Procedure, 1908
Order 47 read with
The Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Order XXVI
Review–
We do not find any new point or ground, as contemplated under order 47 of the Code of Civil Procedure, which could not be found earlier by the petitioner and could not be placed before this Division at the time of dismissal of the leave petition. .....Abdul Wadud Mia (Md.) =VS= Najibunnessa, (Civil), 2018 (1) [4 LM (AD) 11] ....View Full Judgment

The Code of Civil Procedure, 1908
Order 47, Rule 1 read with
The Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Order 26
Review–
Review matters are governed and regulated by the provisions of Order 47, Rule 1 of the Code of Civil Procedure and Order 26 of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988. As a matter of practice and rules this court proceeds to review a judgment pronounced earlier by it upon an application for review by an aggrieved party. Prior to hearing a review petition the court has to be satisfied that grounds for review as mentioned in Order 26 of the said Supreme Court Rules exists. Reference may be made in this regard to the case of Mahbubur Rahman Sikder Vs. Mojibur Rahman Sikder, 37 DLR(AD)145. Grounds taken for review are not new and these grounds were agitated earlier by the respondent before this court and the same were answered while dismissing the leave petition. The respondent by filing the review petition merely sought for rehearing of the matter which is not permissible in law. We are of the view that this court upon correct assessment of the materials on record arrived at a correct decision. There is therefore no warrant in law to interfere with the same. .....GM, Postal Insurance Eastern Region =VS= A.B.M. Abu Taher, (Civil), 2018 (1) [4 LM (AD) 118] ....View Full Judgment

The Code of Civil Procedure, 1908
Order XLVII, Rule 1(1) read with
The Supreme Court of Bangladesh, (Appellate Division) Rules 1988.
Rule 1 of order XXVI
Review is not rehearing of an appeal–
Review is not rehearing of an appeal or to give a defeating party chance to start a second innings and the reasons given by a Court in not relying upon an exhibit in a case do not definitely come within the phraseology “or on account of some mistake or error apparent on the face of the record” within the meaning of rule 1(1) of Order XLVII of the Code of Civil Procedure read with rule 1 of order XXVI of The Supreme Court of Bangladesh, (Appellate Division) Rules 1988. .....Suza Uddoula & others =VS= Arshad Hossain Haider & others, (Civil), 2016-[1 LM (AD) 170] ....View Full Judgment

Review–
Mere production of some documents at a belated stage cannot outweigh the evidences already on record which were thoroughly considered by all the Courts below. By providing some documents, the leave-petitioners tried to make a total departure from the written statement although they produced oral and documentary evidence in support of the defence case as already made out in the written statement.
In the light of the findings made before, we are of the view that the petitioner could not make out any case for review as provided under Order XLVII Rule 1 of the Code of Civil Procedure. Accordingly, this review petition is dismissed. ...Abdur Rahman =VS= Moti Lal Chowdhury, (Civil), 2019 (1) [6 LM (AD) 227] ....View Full Judgment

An application for review and rule 4(2) of Order XLVII provides that no application for review shall be granted unless notice of the application has been served upon the opposite party.
Md. Mintu Chowdhury -Vs.- Khurshid Nayeem and others(Md. Abdul Wahhab Miah J) 6 ALR (AD) 2015 (2)184 ....View Full Judgment

The Code of Civil Procedure, 1908
Order XLVII, Rule 1(1) read with
Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Order XXVI
Review– "The Rules provide that review of a judgment or order in a civil proceeding may be made "on grounds similar to those mentioned in Order XLVII rule 1 of the Code of Civil Procedure", that is to say, on discovery of new and important matter or evidence which was not known or could not be produced before, (ii) on account of some mistake or error apparent on the face of the record, or (iii) for any other sufficient reason. Consistently with the principle that there is to be an end to litigation, it is now well-recognized that review is not an appeal nor a rehearing merely on the ground that one party or another conceives himself to be dissatisfied with the decision sought to be reviewed. Unless a prayer for review is based on the grounds mentioned above, the Court will not sit on the matter again for a rehearing or further hearing which is already concluded by decision even if that be erroneous."
In the light of the findings made before, we do not find any substance in this review petition. Accordingly, this review petition is dismissed with-out any order as to costs. ...IUBAT =VS= Mohammad Ismail, (Civil), 2020 [9 LM (AD) 568] ....View Full Judgment