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, [1 LM (AD) 208] ....View Full Judgment

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

"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.

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.

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.

It is one of the settled principles of law that a party who has accepted the preliminary decree cannot subsequently challenge the final decree– Defendant Nos.4 to 6 in their written statement specifically admitted that they took lease of some land from the predecessors of the plaintiff and the defendants and as such, they are lessee in the suit land and it is further evident that they did not pray for any saham when preliminary decree was drawn up and as such, they cannot challenge the final decree as drawn up subsequently.
Having considered the facts, circumstances and other materials on record, we hold the view that the Advocate commissioner submitted his report on 24.04.2000 in accordance with the judgment and decree of the High Court Division as has been passed in Second Appeal No.24 of 1970 and as such there is no scope to interfere with the report or the final decree.
Appellate Division finds no inherent infirmity or illegality in this order. The learned Judge of the appellate Court below as being the last Court of fact also affirmed the aforesaid order of the trial Court. The appeal is allowed. The impugned judgment and order of the High Court Division is set aside without order and the judgment passed by the appellate Court is hereby affirmed. ...Hurunnessa Khatun(Mst.) =VS= Khandaker Abdul Mukit, (Civil), 2021(2) [11 LM (AD) 107] ....View Full Judgment

The Code of Civil Procedure, 1908
Sections 3, 9 and 115(1) r/w
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.

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.

Companies Act, 1994
Section 95, 3
Code of Civil Procedure, 1908
Section 9, 151
The learned Company Judge rejected the application with direction:
“that the Companies Act specifically provided the jurisdiction of the Company Court to be applied under specific provisions the Court does not have any general, plenary or residuary jurisdiction to deal with other matters and questions arising under the Companies Act. Section 95 ....... does not specifically provide jurisdiction to this Court. Therefore, the only remedy available to the petitioners is the Civil Court and not this Court.”
The said Rule though has not yet given effect to but goes to show that the jurisdiction arising out of any dispute regarding section 95 of the Companies Act is not conferred on the High Court Division but the disputes being a civil dispute the ordinary civil Court namely, District Court has been vested with the jurisdiction.
It is clear that unless section 9 of the Code of Civil Procedure bars the jurisdiction of the Civil Court expressly or impliedly under any enactment, the said provision gives jurisdiction to file a suit/litigation of any civil nature in any civil Court of competent jurisdiction. Thus section 95 of the Companies Act providing no forum thereunder, any dispute arising thereto is to be resolved as a civil dispute resorting to the ordinary civil Court of competent jurisdiction and as such the inherent jurisdiction under the Companies Act in the absence of any specific provision therein would not be invoked to enforce the provision of section 95 of the Companies Act, as the said provision is providing procedural matters only and not substitutive provision. It is also clear that under section 95 of the Companies Act, the High Court Division could not also invoke the provision of section 151 of the Code of Civil Procedure sitting as a Company Court under the Companies Act, 1994. These appeals are accordingly dismissed without any order as to costs. .....Abdul Mohit =VS= Social Investment Bank Ltd., (Civil), 2025(1) [18 LM (AD) 586] ....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.

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.

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.

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

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.

Principles of resjudicata– The question of resjudicata cannot be decided by dint of objection raised in the application for addition of party without framing issues at the time of trial– The principles of resjudicata must be fulfilled which are as follows:
(1) Identity of matter in issue: The matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit either actually or constructively. Section 11 (2) Identity of parties: The former suit must have been between the same parties or between parties under they or any of them claim. Section 11 (3) Same title: The parties in the subsequent suit must have litigated under the same title as in the former suit. Section 11 (4) Concurrence of jurisdiction: The Court which decided the former suit must have been competent to try the subsequent suit or the suit in which the issue has been subsequently raised. Section 11 (5) Finality of decision: The matter in issue in the subsequent suit must have been finally decided in the former suit. Section 11 On perusal of the plaint of the suit and the pleadings of the parties it is clearly divulged that in the instant suit parties are not same. The suit properties are not same and the reliefs claimed in the present suit are not similar, rather, squarely distinct and separate. Section 11 The question of resjudicata cannot be decided by dint of objection raised in the application for addition of party without framing issues at the time of trial. Reliance may be placed to the case of Sreemoti Puspa Rani and another Vs. A.K.M. Habibur Rahman and others, reported in XIII BLD (1993) (AD) 217. We find no merit in the appeal. ...Mohammad Nurul Haque =VS= Md. Nurul Haque, (Civil), 2021(1) [10 LM (AD) 74] ....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

Code of Civil Procedure, 1908
Section 11
Constitution of Bangladesh, 1972
Article 111
It is by now finally settled that respondent No.5 cannot claim any valid right and claim over the land of disputed plot of the case in hand while the respondent No.1 became the owner of the land of disputed plot by way of acquisition. Although in the present case the respondent No.5 claims to be in possession of the disputed plot in view of the settled legal proposition the status of the respondent No.5 in the disputed plot is no better than a mere trespasser. .....Aziz Ara Rahman Vs. RAJUK and others (Civil), 19 SCOB [2024] AD 1
It is the case of the appellant that she took the allotment of the disputed plot from the respondent No.1, RAJUK vide memo dated 16.11.1995. Now the pertinent question is that whether the appellant has acquired a valid right and title of the disputed plot. Since it has already been settled by this Division that the land of disputed plot was acquired by RAJUK in accordance with law and the said land was not delisted from the acquisition, it is our considered view that the appellant having taken allotment of the same from RAJUK has acquired a legitimate right and title over it. .....Aziz Ara Rahman Vs. RAJUK and others (Civil), 19 SCOB [2024] AD 1
It is our considered view that the High Court Division committed illegality in passing the impugned judgment without taking into consideration that earlier in Writ Petitions No.11099 of 2006 and 3030 of 2005 the High Court Division found that the respondent No.5 has no right and title over the disputed plot. But in the case in hand, the High Court Division while dealing with the Writ Petition filed by the appellant held relying on the claim of the respondent No.5 to the effect that since the case involves the disputed question of facts as to the title over the disputed plot the same should be settled in Title Suit No.373 of 2005 filed by the respondent No.5 and as such the Writ Petition is not maintainable. The above findings of the High Court Division is absolutely unwarranted inasmuch as the fresh consideration of title of the respondent No.5 in disputed plot which has already been decided earlier by the High Court Division in Writ Petitions No.11099 of 2006 and 3030 of 2005 is barred by the principle of res judicata. .....Aziz Ara Rahman Vs. RAJUK and others (Civil), 19 SCOB [2024] AD 1
Any previous decision on a matter in controversy in a legal proceeding including writ petition decided after full contest by the parties or after affording fair opportunity to the parties to prove their case will operate as res judicata in a subsequent regular suit. Therefore, in view of the above decision of the Indian Supreme Court we hold that since the right and title of the respondent No.5 in the disputed land has not been found by the High Court Division in Writ Petitions No.11099 of 2006 and 3030 of 2005 filed at the instance of the respondent No.5, subsequent suit being No.373 of 2005 instituted by the respondent No.5 for declaration of title so far as it relates to the disputed plot claimed by the appellant in Writ Petition No.7817 of 2009 is barred by the principle of res judicata. .....Aziz Ara Rahman Vs. RAJUK and others (Civil), 19 SCOB [2024] AD 1 ....View Full Judgment

Res judicata:
We cannot agree with the submissions that the writ petition is not maintainable due to res judicata effect of the judgment in writ petition No. 6911 of 2005. Res judicata requires uniformity of causes of action and parties. The petition before the Supreme Court of Bangladesh arises from a different cause of action and there is no uniformity of parties. There was no cause of action arising from the corruption and bribery in writ petition No. 6911 of 2005. The parties in the present writ petition are also not the same parties. .....Niko Resources (Bd) Ltd Vs. Professor M. Shamsul Alam & ors, (Civil), 19 SCOB [2024] AD 125 ....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.

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.

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.

The Code of Civil Procedure, 1908
Section 11
State Acquisition and Tenancy Act, 1950
Section 150(1)
The Transfer of Property Act
Section 52
The question of re-opening the separation of khatians touching the cessation of co-sharership of the pre-emptors would be a res judicata within the meaning of section 11 of the Code– The finding of the Appellate Court clearly shows that it did not also at all consider the facts and circumstances of the case under which the order of amalgamation of the khatians was passed. Since the Appellate Court failed to consider provisions of section 150(1) of the Act, 1950 in rejecting the cross-objection filed by the pre-emptors against the finding of the trial Court as the co-shareship of the pre-emptors its finding in that respect was per incuriam. Further the Appellate Court totally misconceived the doctrine of lis pendens and also totally failed to consider that the act of amalgamation of the khatians of the pre-emptors on the basis of an application under section 150(1) of the Act, 1950 during the pendency of the miscellaneous cases was not a case of lis pendens within the meaning of section 52 of the Transfer of Property Act, but a malafide and smart move made by the pre-emptors to acquire the locus standi to file the application for pre-emption by resorting to amalgamating the khatians which stood separated long three years before and had already been acted upon. Therefore, Appellate Division finds no substance in the submission of Mr Khair Ezaz Maswood that the question of re-opening the separation of khatians touching the cessation of co-sharership of the pre-emptors would be a res judicata within the meaning of section 11 of the Code. The facts and circumstances of the case under which the Privy Council propounded the principle of resjudicata in the case of GH Hook (supra) are absolutely distinguishable from the instant case and hence the principle of law enunciated therein has no manner of application in the instant case. This Division finds merit in the appeals and accordingly, both the appeals are allowed. The judgment and order of the High Court Division is set-aside and those of the Courts below are restored. .....Abdul Gafur =VS= Md Muklesur Rahman, (Civil), 2022(1) [12 LM (AD) 200] ....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.

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.

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

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.

Code of Civil Procedure, 1908
Sections 20 and 115 r/w
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

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.

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.

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.

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.

Supreme Court of Bangladesh (High Court Division) Employees (Discipline and Appeal) Rules, 1983
Rule 2 (I), 2(2), 3(b)
Administrative Tribunal Act, 1980
Section 4(2)
Code of Civil Procedure
Section 21
The Deputy Registrar who in the absence of the Registrar was in- charge of the office of the Registrar— The order of removal from service was passed— The AAT was of the view that in proceeding against the Respondent there was violation of the Rules since the 2nd show cause notice was issued on the direction of the Chief Justice and in taking final decision for awarding punishment the same was not placed before the Chief Justice, but was considered by the Registrar (appellant) and finally he awarded the punishment. The fact being that it is the Registrar who is the competent authority in respect of the Respondent for taking disciplinary action and that the Registrar on consideration of the materials on record having made the decision for awarding punishment to the Respondent and having passed the order of removal the same in my view can not be said to have been passed in violation of the Rules. The opinions in this appeal are equally divided, the Judgment of the Administrative Appellate Tribunal is maintained. Consequently this appeal stands dismissed without any order as to costs. .....Supreme Court of Bangladesh =VS= Md Shafiuddin, (Civil), 2025(2) [19 LM (AD) 270] ....View Full Judgment

The Court with higher pecuniary jurisdiction could decide a suit of lower pecuniary value and would not render the decree void— 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. Thus if the Subordinate Judge hears, adjudicate and adjudge the decree in Other Suit No.26 of 1983 as void or otherwise, the decree could not be void for want of jurisdiction, rather the issues involved in the suit could be conveniently dealt, decided and determined by a higher forum i.e., the Subordinate Judge without any risk or chance of any conflicting decision. This appeal is allowed without any order as to cost. .....Md. Shamsul Haque =VS= Salenullah, (Civil), 2025(1) [18 LM (AD) 477] ....View Full Judgment

Code of Civil Procedure, 1908
Sections 21 and 99
Specific Relief Act, 1877
Section 42
The policy underlying sections 21 and 99 of the Code of Civil Procedure is that when a case has been decided on merit, it should not be reversed unless it has resulted in failure of justice— Since the present case has been decided on merit, the mere mis-description of the plaintiff shall not be allowed to affect the suit, particularly when the mis-description of the plaintiff in the present suit has not affected the merit of the controversy or the jurisdiction of the court. The present suit, as framed, is found to be maintainable and the judgment and decree dated 29.9.1992 passed by the trial court is restored. .....Divisional Forest Officer, Dhaka =VS= Md. Shahabuddin, (Civil), 2024(2) [17 LM (AD) 319] ....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. 10 BLT (AD)-50

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

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

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.

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.

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.

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.

The Insurance Act, 1938
Section 47B
Code of Civil procedure, 1908
Section 34
In "The Insurance Act, 1938" there has been an amendment by Ordinance No.XXV in 1970 wherein Section 47B has been incorporated which allows granting of interest. This granting of interest is under the statute itself which the appellant is entitled under the law. Section 47B of the Insurance Act in fact displaces the discretion of the court conferred under section 34 of the Code of Civil procedure of granting decree for interest. As per Section 47B(1) the insurer is saddled with interest on late settlement of claim. Sub-Section 2 of Section 47B reads as follows:-
"The interest under sub-section (1) shall be payable for the period during which the failure continues and shall be calculated at monthly rates at the rate of five percent higher than the prevailing bank rate."
The plaintiff-appellant is entitled to the statutory interest under section 47B of the Insurance Act, 1938. The learned Judges failed to notice that the appellant is entitled to this statutory interest under the law and the court has no discretion in the matter. The appeal is allowed without any order as to costs and the judgment and decree of the trial court is restored. Civil Petition for Leave to Appeal No.236 of 1997 is dismissed. .....Chalna Marine Products Ltd. =VS= Reliance Insurance Ltd., (Civil), 2025(2) [19 LM (AD) 220] ....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.

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

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.

The Code of Civil Procedure, 1908
Sections 47, 48(2)(a)
Limitation Act, 1908
Sections 5, 14 and article 182
Condonation of delay– The Executing Court in rejecting such applications opined that the decree holder filed the decree execution Case No.4 of 1990 which was dismissed on 06/06/1992 for want of steps. On 13/11/2000, 2nd decree execution case being Case No.05 of 2000 was filed, which was admittedly delayed by 8 years and 4 months. The decree holder took the pretext to condone the delay in an application under section 48(2)(a) of the Code. The Executing Court found that decree holder had filed another suit being other Suit No.35 of 1992 and proceeded well ahead without any hindrance for the same time. Furthermore, some criminal cases were not at the period of limitation but later like G.R. Case No.32 of 1998, non G.R. Case No.33 of 1998 and C.R. Case were out of period of limitation, however, execution case was dismissed on 06/06/1992, hence, the Court disbelieved the aforementioned pretexts to allow the aforementioned applications. .....Moslehuddin Ahmed =VS= Abdul Gafur, (Civil), 2022(1) [12 LM (AD) 188] ....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.

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.

The executing Court can neither go beyond nor behind the decree to supply the specification which is not there in the decree itself— It is a cardinal principle of law that a Court executing a decree cannot go behind the decree between the parties or their representatives, it must take the decree according to its tenor and cannot entertain any objection that the decree was incorrect in law or facts. Reference in this regard may be made to the case of Vasuder vs. Rajabdar AIR 1970 SC 1475. In view of this, Appellate Division does not find any possible reason to differ from the finding of the High Court Division and also with the principles of law above. In view of the nature of the decree in the instant case, best course for the appellant would be to go for a suit for partition, if he is so advised, in case of failure of the plaintiff to obtain possession of his 2 annas share in the suit land decreed in his favour by amicable partition. The appeal is accordingly dismissed without costs. .....Sahera Khatun =VS= Abdul Gaffar @ Abdul Gafar, (Civil), 2025(1) [18 LM (AD) 487] ....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.

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.

The Artha Rin Adalat Ain, 1990
Section 6(ka), 5(4) & (5) r/w
The Code of Civil Procedure
Section 56
Section 5(4) and (5) of the Artha Rin Adalat Ain, 1990 has clothed the Artha Rin Adalat with the power to exercise its jurisdiction as a Civil Court following the provisions of the Code of Civil Procedure in so far as it is not inconsistent with any provision of the Artha Rin Adalat Ain, the legislature was required to make express provision in section 6(Ka) to exclude the operation of section 56 of the Code of Civil Procedure, but it was not done so. Section 6(Ka) of the Artha Rin Adalat Ain, 1990 can not, therefore, be construed to exclude the operation of section 56 of the Code of Civil Procedure in matters of execution of any decree passed by the Artha Rin Adalat. .....Hazera Begum =VS= Artha Rin Adalat, (Civil), 2018 (1) [4 LM (AD) 225] ....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. 9 BLT (AD)-269

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

Pattannama–– No notice was served upon the Government–– The Gazipur Samabaya Krishi Khamar Limited prayed for a decree in respect of 200 acres of land out of 232.60 acres of land of C.S. plot No.171, which is huge land and it claimed that the Bhawal Court of Wards settled the same to one Muslehuddin and two others on 06.02.1939 on the basis of pattannama. There is no finding as to whether said Gazipur Samabaya Krishi Khamar Ltd. had been able to prove said pattannama or not . Considering the aforesaid facts and circumstances, Appellate Division finds substance in the appeal.
Accordingly, the appeal is allowed. The judgment and decree passed by the trial Courts as well as High Court Division are set aside. The order passed by this Division dated 30.07.2015 in Civil Petition for Leave to Appeal No.2121 of 2014 is also set aside. Ex-parte decree dated 17.12.1980 passed by the then First Court of Subordinate Judge, Dacca in Title Suit No.271 of 1980 is also set aside. The said suit is restored to its original file and number. The First Court of Joint District Judge, Dhaka is directed to transmit the case of Title Suit No.271 of 1980 to the Court of Joint District Judge, Gazipur and the Joint District Judge, Gazipur is directed to proceed with the suit in accordance with law. .....DC, Gazipur =VS= Gazipur Samabaya Krishi Khamar Ltd. , (Civil), 2023(2) [15 LM (AD) 432] ....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

Code of Civil Procedure, 1908
Section 92 r/w
Charitable Endowment Act, 1890
Effective management and supervision of the deities’ property–– Shebait of the deities is partially wrong and such wrong record has not affected the right, title, interest and possession of the plaintiffs. ––Appellate Division has no hesitation to come to a definite conclusion to the effect. This Division is giving following directions and observations for proper and effective management of the present suit property i.e., deities’ property.
(1) The administration of the deities and its property are to be administered by a democratically elected management committee. The first management committee is to be formed following the guide lines mentioned as bellow;
(i) 1(one) representative of highly respectable hindu residents of Chattogram town to be nominated by the Deputy Commissioner, Chattogram;
(ii) 1(one) elected Hindu Commissioner/ Councilor from the Chattogram City Corporation, if any, to be nominated by the Mayor of Chattogram City Corporation. If such person is not available, the Mayor of Chattogram City Corporation shall nominate any hindu resident of Chattogram city who is of high social standing and good reputation;
(iii) 1(one) elected Hindu member of Zila Parishad, Chattogram District, if any, to be nominated by the Chairman of Zila Parishad, Chattogram. If no such person is available, the Chairman of Zila Parishad, Chattogram shall nominate any highly respectable hindu resident of Chattogram;
(iv) 1(one) Hindu representative from the District Bar Association, Chattogram to be nominated by the Executive Committee of said District Bar Association;
(v) 1(one) Judicial Officer preferably from Hindu Community, of District and Sessions Judge Court, Chattogram “Judgeship” including Magistracy to be nominated by the District Judge, Chattogram;
(vi) Shebait of the deities shall be ex officio member of the management Committee;
(vii) The Deputy Commissioner, Chattogram in consultation with the 05(five) leading Shebaits or priests of the different temples/deities of Chattogram town/district shall appoint Shebait of the Deities;
(viii) 1(one) Hindu Officer from District Police Administration, Chattogram to be nominated by the Metropolitan Police Commissioner, Chattogram, if such person is not available, any Hindu responsible officer from Chattogram District;
(ix) The members of the Management Committee shall hold the office for a period of 03(three) years. The management committee shall be reconstituted at the end of every 03(three) years;
(x) There will be no bar to re-elect a member from the respective category. In case of death, resignation or removal of any member the vacancy shall be filled up by election and tenure of such new member shall be up to the tenure of the existing committee. Charge of office shall have to be handed over by the outgoing committee to the newly formed committee within seven days of its formation.
(2) The Committee shall elect a President, a Vice President, a Secretary, a Treasurer and an Assistant Secretary from amongst the aforesaid members of Management Committee. The members of the management Committee shall discharge their powers and functions as trustees of the deities’ property in consonance with religious customs and traditions.
(3) The President shall be the Executive Head of the Management Committee and he shall preside over all the meetings. He shall have the power to direct the Secretary to convince any meeting of the Management Committee in the normal course of business with two days notice and an Emergency Meeting may be called with twenty four hours notice. If the Secretary for any reason fails to convey such meeting directed by the President, the later shall himself convene such a meeting. In the absence of the President, the Vice President shall preside over the meeting and if the President and vice-president are not available, then any senior member of the Committee shall preside over the meeting.
(4) The Secretary shall be responsible for the overall management of the affairs of the trust. The functions of the Assistant Secretary shall be assigned by the Management Committee and he shall be responsible for his activities to the Committee.
(5) Meetings of the Management Committee shall be held preferably once in every two months and must be held at least thrice in a calendar year. Quorum of the meetings will be formed with the presence of one third members of the committee. The president shall have casting vote in case of any tie. Minutes of the proceedings of such meetings shall be maintained in a bound volume as permanent record.
(6) The Management Committee shall have the right to appoint necessary employees for management of the suit property which may be found necessary by the Management Committee. The terms and conditions of their service, including salary and other benefits, shall be determined by the management Committee in consultation with the District Judge, Chattogram.
(7) The minimum educational qualification of the Shebait shall be Higher Secondary Certificate (HSC) from a recognized Board of the country or equivalent thereto.
(8) The Management Committee shall have the right to take disciplinary actions against the Shebait, and any of the employees, including suspension, termination and dismissal from service on the grounds of inefficiency, negligence, insubordination, action in any manner prejudicial to the interest of the suit property, indulging in any activity subversive to the state or of discipline, any undignified conduct not commensurate with the high ideals and sacredness of the Deity, malafide and malfeasance.
(9) The Secretary shall take proper steps to prepare and preserve:
(i) a complete record of the properties (suit property) of the deities;
(ii) he shall also maintain a separate Register of all dues payable by the Deities property, cases or rent, and other public dues, giving the exact dates by which those are required to be paid and the dates of actual payments made.
(iii) the Secretary shall arrange for safe custody and proper preservation of all important papers and correspondence relating to the property. An authenticated complete list of property, must be promptly supplied to the District Judge, Chattogram for his record;
(iv) the Secretary shall not sell or otherwise dispose of or alienate the property nor shall be leased out and mortgage the property under any circumstances and also not borrow any money from any person or authority except under a resolution of the Management Committee, duly approved by the District Judge, Chattogram;
(v) the Secretary shall keep regular accounts and preserve all vouchers. The vouchers may be destroyed after three years, if permitted by the Management Committee;
(vi) at least a month and a half before the beginning of the Fiscal Year, the Secretary shall prepare a budget of income and expenditure and obtain approval from the Management Committee. The budget shall then be placed before the District Judge, Chattogram for his approval;
(vii) the Secretary will not generally spend any amount of money beyond the budget. In case of emergency, he may spend up to taka 50,000.00 (fifty thousand) only in excess of the budget subject to approval of the Management Committee in the next meeting;
(viii) within two months after the end of the fiscal year the Secretary shall submit accounts of the property for the preceding year, audited by a certified Auditor to be nominated by the District Judge, Chattogram. The report of the Auditor shall be submitted to the Management Committee and which shall send the report with its remarks for perusal of the District Judge, Chattogram.
(10) The Deputy Commissioner and Metropolitan Police Commissioner of Chattogram shall accord all co-operations to the Management Committee in the administration, preservation and protection of the suit properties and shall provide necessary safety and security measures.
(11) If any doubt, dispute or difficulty arises amongst the member of the committee, the Management Committee may apply to the District Judge, Chattogram for necessary clarification, advice and guidelines. .....Jotilal Chowdhury =VS= Suruchi Bala Singha @Ambika Devi, (Civil), 2023(1) [14 LM (AD) 120] ....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.

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.

DESA does not have any objection if the amount forfeited on account of bank guarantee of the petitioner is returned– The High Court Division after due consideration of the submissions of writ-respondent No.6, DESA authority, made the Rule absolute on the basis of the admission of the DESA authority and directed to return the forfeited amount to the writ-petitioner. So, the finding of the High Court Division appears to be very clear and innocent finding which does not call for any interference by this Court. .....Dhaka Electric Supply Authority (DESA) =VS= Md Shaheen Shabuddin Khan, (Civil), 2022(1) [12 LM (AD) 92] ....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.

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.

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

If the point of difference is not stated by the learned Judges, it will be for the Third Judge to whom the case is referred to ascertain the same and to give his opinion thereon– We find that though the learned Judges of the High Court Division did not state in their judgments, which question of law as to the interpretation of the Constitution is involved in the case, this Division held that for such defect, the appeal before this Division was not incompetent on the score of defective certificate.
We are also of the view that though the learned Judges did not specify the law point on which they differed, in such a situation, it was the duty of the learned Third Judge to whom the matter was referred to ascertain the difference of opinion.
Having gone through the judgment of the Third Judge, we find that the learned Judge could detect the difference of opinion of the learned Judges of the Division Bench about the law point and resolved the issue accordingly. Therefore, for not merely stating the law point by the learned Judges, who differed with each other, the judgment delivered by the Third Judge cannot be said to have been passed without jurisdiction. ...Shajahan Mia(Md.) =VS= Ministry of Forest, BD, (Civil), 2021(1) [10 LM (AD) 122] ....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.

Code of Civil Procedure, 1908
Section 100 r/w
Bengal Tenancy Act
Section 103(B)
Declaration of title and confirmation of possession— In view of the concurrent findings of fact based on evidence on record arrived at by the Court of appeal below affirming those of the trial Court, the High Court Division acted illegally in disturbing those findings of fact, assessing himself the evidence on record in the absence of error of law or procedure affecting merit of the case. Section 100 of the Code of Civil Procedure does not authorise the High Court Division to disturb the finding of fact of the Court of appeal below, the final Court of fact arrived at on appreciation of the evidence even though the High Court Division do not agree with the finding arrived at by the Court of appeal below on consideration of the evidence on record. Thus the High Court Division exceeded its jurisdiction conferred under section 100 of the Code of Civil Procedure in disturbing the concurrent findings of fact arrived at by the Courts below in the absence of any misreading or non-consideration of evidence or any error of law or procedure affecting the merit of the case. Therefore, this appeal is allowed with costs. The impugned judgment and order of the High Court Division are set aside and those of the learned District Judge duly affirming those of the learned Munsif are restored. .....Hriday Ranjan Dey =VS= Niranjan Dey, (Civil), 2025(2) [19 LM (AD) 258] ....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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

No remand Order can however be made to facilitate a party to fill up the lacuna in his case–– It’s true that a suit can be remanded by the appellate court with direction for giving findings and decision on certain issues where the trial court omitted to do so. As per Section 107 of the Code of Civil Procedure, 1908 the appellate court has the authority of remand of a case under the conditions elaborated in Order 41, Rules 23 and 25. The appellate court can too put into effect the power of remand in exercise of its inherent power. These powers of the appellate court are not restricted to exact case mentioned in Rule 23. The court may also order a remand in cases other than those covered under Rule 23 and may do so also under Section 151 of the Code if it becomes necessary for the ends of justice. Even the High Court Division can make an order of remand while exercising revisional jurisdiction if it is so required for full and effective adjudication of all the relevant points involved in a case. No remand Order can however be made to facilitate a party to fill up the lacuna in his case. .....Abdul Gaffar =VS= Md. Abdul Miah, (Civil), 2022(2) [13 LM (AD) 40] ....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

The appellate court can also exercise the power of remand in exercise of its inherent power— It is now well settled that the remand orders are not to be made as a matter of course. The High Court Division as a revisional court is required to properly appreciate the relevance of the evidence on record before making such order of remand. The case of Probodh Ranjan Shome Vs. Md. Easin, 4 BSCR(AD) 457 may be referred to in this connection. Since there is no necessity for taking any further evidence in the interest of resolution of the dispute on title, the order of remand passed by the High Court Division can not be sustained. The case of Sukumar Sen Vs. Gouranga Dey, 42 DLR(AD) 18 can be profitably cited on the point. In view of the evidence and materials on record the concurrent findings of fact as regards title and possession arrived at by both the trial court as well as the appellate court below are sound and sustainable both in fact and law. The view taken by the learned Judges of the High Court Division in sending the case on remand is therefore erratic and perverse and the impugned judgment is accordingly set aside and the judgment and decree passed by the trial court as well as the appellate court below are hereby restored. .....Majeda Khatun =VS= Jiban Nessa, (Civil), 2024(2) [17 LM (AD) 249] ....View Full Judgment

Bangladesh Land Holding (Limitation) Order, 1972 (P.O.98 of 1972)
Sections 3, 4(d)
Private Residential Project Land Development Rules, 2004
Rule 8(1)
State Acquisition and Tenancy Act, 1950
Section 20 r/w 90(3)
Code of Civil Procedure, 1908
Section 114 & Order XLVII rule 1 r/w
Town Improvement Act, 1953;
Environment Conservation Act, 1995;
Environment Conservation Rules 1997;
মহানগরী, বিভাগীয় শহর ও জেলা শহরের পৌর এলাকাসহ দেশের সকল পৌর এলাকার খেলার মাঠ, উন্মুক্ত স্থান, উদ্যান এবং প্রাকৃতিক জলাধার সংরক্ষণের জন্য প্রণীত আইন, ২০০০
Project: Ashiyan City Prokalpo–– It transpires that from the record that the Deputy Commission earlier gave ‘No-objection’ in respect of 55.6 acres of land in favour of the review petitioner-respondent No.1 for its project but it was entitled to retain only 33 acres of land as per Bangladesh Land Holding (Limitation) Order 1972 (P.O. 98 of 1972) and বেসরকারি আবাসিক ভূমি উন্নয়ন বিধিমালা, ২০০৪ at the relevant time. It is evidenced from the record that respondent No.1 got approval of other authorities, including utilities such as Dhaka Electric Supply Company, Dhaka Water Supply and Sewerage Authority, Bangladesh Telegraph and Telephone Board and Titas Gas as well as the Fire Service and Civil Defence, Dhaka Transport Coordination Board, Dhaka Metropolitan Police and Water Development Board. ––Appellate Division is of the view that review petitioner-respondent No.1 is entitled to proceed his project in respect of 33 acres of land pursuant to the permission dated 25.09.2012 and annexures ‘C’, ‘K’ and ‘M’ will be applicable only in respect of the said quantum of land and permission of respective organizations. .....Bangladesh =VS= Ashiyan City Development Ltd. , (Civil), 2024(1) [16 LM (AD) 486] ....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.

CPC
Section 114 and Order XLVII, rule 1
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

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.

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.

The Code of Civil Procedure
Section 115
Non-Agricultural Tenancy Act, 1949
Section 24(II) (A)
Pre-emption–– The positive findings of the courts below as mentioned above was wrongly interfered by the High Court Division in its revisional jurisdiction under Section 115 of the Code of Civil Procedure. The High Court Division totally misdirected itself in holding that the pre-emptor could not filed the pre-emption case within the stipulated period of time prescribed for filing the same holding that the pre-emptor was unsuccessful to prove this case for pre-emption within the statutory period of limitation from the date of her knowledge about the transfer in question. ––High Court Division is hereby set aside and the judgment and decree passed by the Courts below are restored. .....Kohinur Begum =VS= Most Majeda Khatun, (Civil), 2023(2) [15 LM (AD) 206] ....View Full Judgment

It is now well settled that the High Court Division in revisional jurisdiction has got the jurisdiction to interfere with the findings of fact of the courts below, if it finds error apparent on the face of record–– It is to be stated here that if there is misreading of evidence and nonconsideration of some material evidence then it was incumbent on the revisional court to consider the same and to arrive at a proper finding on the material evidence on record and to finally dispose of the case. ––Appellate Division is of the view that the judgment passed by the High Court Division based on sound principle of law and facts and there is no scope to interfere with the same. The appeal is dismissed without any order as to costs. .....Md. Abdul Hamid =VS= Mst. Sara Khatun, (Civil), 2023(2) [15 LM (AD) 456] ....View Full Judgment

Rejection of plaint–– Porikkhit Banik from whom the plaintiff appellant purchased the suit land vide deed No. 1655 dated 24.08.1997 filed title suit No. 98 of 1992 which was decreed but on appeal it was reversed against which he filed Civil Revision before the High Court Division, but fearing the fate of the Civil Revision he withdrew the Civil Revision case, therefore, the bar of the provisions of Order XXIII Rule 1(3) would operate, wherein it has been stated that the plaintiff will be precluded from placing any fresh suit if permission is not taken. ––It squarely attracts Order VII Rule 11(d) of the Code of Civil Procedure and hence High Court Division did not commit any error in the decision by rejecting the plaint in revisional jurisdiction under Section 115 of the Code of Civil Procedure. .....Sree Shuvash Chandra Dhar =VS= Milon Chandra Banik, (Civil), 2023(2) [15 LM (AD) 37] ....View Full Judgment

Chittagong Hill Tracts Regulation, 1900
Section 7, 8(1), 12, 18, 19 r/w
Code of Civil Procedure, 1908
Section 115(1) r/w
Constitution of Bangladesh, 1972
Article 152
Forged and fabricated Power of Attorney and Nadabipatra does not have any evidentiary value in the eye of law— It is evident from the death certificate of Mostafa Khatun that she died on 01.06.1984 at the age of 80 years while the alleged Power of Attorney was created by the defendant No.1 on 24.07.1984 wherein said Mostafa Khatun had been shown as the executant of the same. But practically it is impossible for Mostafa Khatun to execute the alleged Power of Attorney after her death. Therefore, it is crystal clear that the alleged Power of Attorney which is the basis of title of the defendant No.1 is forged and fabricated one and as such the same does not have any evidentiary value in the eye of law.
It transpires from the record that the defendant No.1 filed a Nadabipatra dated 05.08.1984 in support of his title. But on going through the said Nadabipatra it divulges that there is no witness in the said document and the discrepancy is patent between the signature of the plaintiff available in the Nadabipatra with the one contained in the plaint. Therefore, it is evident that the said Nadabipatra is forged and fabricated one. Appellate Division find that the plaintiff has been able to prove his case and the trial Court on proper appreciation of facts and law decreed the suit while the appellate Court below rightly dismissed the Appeal. .....Md. Abdus Salam =VS= Md. Nazrul Islam, (Civil), 2025(1) [18 LM (AD) 247] ....View Full Judgment

Pre-emption– The High Court Division in exercise of its revisional jurisdiction cannot interfere unless there is misreading or non-reading of evidence on record by the Courts below– To believe or disbelieve a witness is within the domain of the Courts below and the High Court Division in exercise of its revisional jurisdiction cannot interfere in such domain unless there is misreading or non-reading of evidence on record by the Courts below. The High Court Division reversed the concurrent findings of facts of the Courts below without pointing out any misreading or non-reading of evidence on record. Having considered the findings of the Courts below, we find that those are based on evidence on record. .....Abdul Aziz =VS= Unideb (BD) Limited, (Civil), 2022(2) [13 LM (AD) 61] ....View Full Judgment

Guardians and Wards Act, 1890
Section 25
Muslim Law
Code of Civil Procedure, 1908
Section 115
Custody of daughter— Appellate Division directs both the parties in the following manner:-
a) The mother will visit Bangladesh with the child in her custody twice a year. Each trip shall be for a period of 5(five) days, excluding one day to arrive and one day to return to Japan. The mother shall give the father at least 3(three) weeks’ notice before her trip to Bangladesh so that he has adequate time to make necessary arrangements.
b) The father shall give the mother airline tickets (economy), both ways, for her and the child in her custody to travel Bangladesh from Japan. He shall arrange and pay for appropriate accommodation for the mother and the child in her custody for the duration of her visit inside Bangladesh. He will arrange food and transportation for the duration of the said visit.
c) During each visit of the mother to Bangladesh, the two children and the parents shall meet every day for at least 7 (seven) hours each day. There shall be no overnight stays of either daughter with the other (non-Custodial) parent.
d) The father shall arrange that four video calls per month (one per week) will take place amongst the three sisters in which the father and the mother can participate. The father suggests that the calls will take place every Saturday at Japan time 5:00 pm, Dhaka time 2:00 pm. In case of skipped video calls by either party for any reason, a makeup video call must take place within 48 hours of the weekly video call time. No video call shall be published by either party in social media.
e) The father and the mother are at liberty to travel in and out of their respective countries with the child in his or her custody as and when necessary in accordance with the judgment of the High Court Division. .....Imran Sharif =VS= Eriko Nakano Shishi, (Civil), 2025(1) [18 LM (AD) 300] ....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

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. …Karim Khan & ors Vs Kala Chand & ors, (Civil), 7 SCOB [2016] AD 32 ....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 jurisdiction under section 115 of the Code of Civil Procedure is very limited. It has not empowered the revisional court to sit on appeal and take into consideration new facts placed before it through affidavit. It has the power to interfere with the judgment only when there appears error of law apparent on the face of the record occasioning failure of justice. …Alhaj Dr. Chowdhury Mosaddequl Isdani Vs. Abdullah Al Munsur Chowdhury & ors., (Civil), 10 SCOB [2018] AD 19 ....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

Alienation of Land (Distress circumstances) (Restoration) Ordinance, 1976
Section 9
The Code of Civil Procedure, 1908
Section 115
As per provision of section 9 of the Ordinance the decision of the appellate Court is final and such decisions cannot be questioned in any Court, therefore, preferring the revisional application under section 115 of the Code is not maintainable– It appears from the judgment of the Circle Officer (Revenue) who disposed of the case on the factual aspect as per documents and relying upon such documents allowed the case which was confirmed by the learned Munsif on appeal. As per provision of section 9 of the Ordinance the decision of the appellate Court is final and such decisions cannot be questioned in any Court, therefore, preferring the revisional application under section 115 of the Code is not maintainable because such revisional application is barred in view of the provision of section 9 of the Ordinance. The learned Single Judge of the High Court Division failed to discuss about the point of law, rather, discussed and disposed of the revisional application on lengthy academic discussion advising some procedures and directing the lower appellate Court to dispose of the appeal as per directions which is beyond the statory provision. .....Mohd. Keramot Ali Sarder =VS= Md. Samiruddin Sardar, (Civil), 2022(1) [12 LM (AD) 196] ....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

Revisional jurisdiction of the High Court Division— If it finds misreading or non-consideration of material evidence. Apart from that, where the subordinate Courts have exercised a jurisdiction not vested in it by law, or have acted in exercise of its' jurisdiction illegally which have occasioned a failure of justice or breach of some provisions of law or material defect in the decision affecting the ultimate decision, the revisional jurisdiction of the High Court Division can be properly invoked. In this case, Appellate Division noticed that it is one of those cases where the learned Judges of the High Court Division have rightly exercised their revisional jurisdiction by interfering with the concurrent findings of fact of the Courts below. The appeal is dismissed without any order as to costs. .....Khokan Chandra Mondal =VS= Nanda Lal Mridha, (Civil), 2024(2) [17 LM (AD) 368] ....View Full Judgment

Hindu Law of Inheritance (Amendment) Act, 1929
Sections 154, 155, 156 and 157
Constitution of Bangladesh, 1972
Article 28, 27, 19
Code of Civil Procedure
Section 115(1) r/w
Hindu Succession Act, 1956
Section 14
In the trial court, the plaintiff examined 4 PWs and the defendants examined 6 DWs. All the witnesses were cross examined. Some documents were adduced in evidence and marked as exhibits. ––Upon hearing the parties and perusing the evidence on record, learned Assistant Judge decreed the suit infavour of the plaintiff vide judgment and decree dated 26.02.1995 holding that ‘by amendment of Hindu Law of Inheritance, 1929’ the daughter’s daughter are included as heirs and according to that law the plaintiff inherited the property left by Rukkhini Dashi. ––Being aggrieved, the contesting defendants preferred Title Appeal being No.92 of 1995 in the Court of learned District Judge, Khulna, and on transfer the appeal was heard by the learned Additional District Judge, Court No.1, Khulna, who after hearing the parties dismissed the appeal by his judgment and decree dated 23.03.1999 affirming the judgment and decree of the trial court. ––Having aggrieved, the defendant-appellants filed Civil Revision No.2049 of 1999 under Section 115(1) of the Code of Civil Procedure before the High Court Division. In revision, the learned Single Judge of the High Court Division discharged the Rule vide judgment and order dated 04.07.2000 affirming the judgment and decree of the appellate court below. ––Appellate Division is of the view that the suit property being Stridhana of Rukkhini Dashi will lawfully devolve upon the plaintiff Elokeshi, Rukkhini’s daughter’s daughter according to her faith law ‘The Dayabhaga’. However, the trial court’s view on ‘The Hindu Law of Inheritance (Amendment) Act, 1929’, affirmed by the court of appeal and revision is hereby expunged. .....Shishubar Dhali =VS= Chitta Ranjan Mondol, (Civil), 2023(1) [14 LM (AD) 62] ....View Full Judgment

A Court of revision under section 115(1) of the CPC can interfere with the findings of fact, as the final Court of facts, only in exceptional circumstances when the findings are shockingly perverse– It is settled principle that a Court of revision under section 115(1) of the Code of Civil Procedure can interfere with the findings of fact, as the final Court of facts, only in exceptional circumstances when the findings are shockingly perverse or these are vitiated by non-reading of the material evidence or mis-construction of any important documents affecting the merit of the suit. But in the instant case, Appellate Division finds that the appellate Court below have made a threadbare discussion (as has been quoted aforesaid) and left no stone unturned wherefrom it can be said that there are rooms for mis-appreciation or mis-reading or any scope to non-consideration of evidence on record. .....Hosne Ara Bibi =VS= Md. Wazed Ali Mondal, (Civil), 2022(1) [12 LM (AD) 105] ....View Full Judgment

The Limitation Act
Section 5
The Code of Civil Procedure
Section 115 (1)
Delay condone–– The application under section 5 of the Limitation Act, it appears that the petitioners have properly explained the reasons for which they could not prefer the instant revisional application before the High Court Division in time. And as such, Appellate Division is of the view that there is no latches or negligence on the part of the petitioners and they have been able to explain the cause of delay in filing revisional application which in this Division’s view, fulfills the requirement as spelled out under section 5 of the Limitation Act upto the satisfaction of the Court and as such, we are inclined to condone the delay. ––The impugned judgment and order of the High Court Division is set aside. The delay of 403 days in filing the revisional application before the High Court Division is condoned. The High Court Division is directed to hear the substantive revisional application under section 115 (1) of the Code as In Re motion in accordance with law. .....Deputy Commissioner, Netrokona =VS= Md. Abdul Jalil, (Civil), 2023(1) [14 LM (AD) 196] ....View Full Judgment

Revisional jurisdiction of the High Court Division– It appears that since the appellate Court as the last Court of fact decided the question of fact and recorded its findings on consideration of the evidence on record, the High Court Division while exercising revisional jurisdiction adverting interfere with the finding of fact specially when Appellate Division finds that there is no perversity in the findings of the appellate Court due to non consideration and misreading of the material evidence occasions failure of justice. Thus, the learned Judge of the Single Bench of the High Court Division is not justified in controverting those findings of the lower appellate Court. Thus, this Division finds that there is merit in appeal which is liable to be allowed. The impugned judgment is hereby set aside and thereby restored the judgment of the appellate Court below. .....Amjad Ali Sheikh(Md.) =VS= Koyron Bewa, (Civil), 2022(1) [12 LM (AD) 173] ....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

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.

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

Court of revision under section 115(1) CPC can interfere with the findings of fact only in exceptional circumstances when the findings are shockingly perverse merit of the suit– Appellate Division also hold the view that a Court of revision under section 115(1) CPC can interfere with the findings of fact, as has been arrived at by the appellate court below as being the final Court of facts, only in exceptional circumstances when the findings are shockingly perverse or these are vitiated by non-reading and misreading of the material evidence or misconstruction of any important documents affecting the merit of the suit.
Appellate Division hold the view that the finding of the learned Judge of the Single Bench of the High Court Division and as well as the trial Court below are shockingly perverse and those are vitiated by non-reading of the material evidence and misconstruction of evidence on record affecting the merit of the cases. Thus, it appears that the learned Judge of the Single Bench of the High Court Division without properly assessing the evidence on record arrived at a wrong decision and thereby set aside the finding of the appellate Court below, which is liable to be interfered with. …Anwar Alam Bablu(Md.) =VS= Abdul Khaleque, (Civil), 2021(2) [11 LM (AD) 113] ....View Full Judgment

A Court of revision under section 115(1) of the Code of Civil Procedure can interfere with the findings of fact of the lower appellate Court which is the last Court of facts, only in exceptional circumstances when the findings are shockingly perverse– It is settled principle that a Court of revision under section 115(1) of the Code of Civil Procedure can interfere with the findings of fact of the lower appellate Court which is the last Court of facts, only in exceptional circumstances when the findings are shockingly perverse or these are vitiated by non-reading of the material evidence or mis-construction of any important documents affecting the merit of the suit. But in the instant case, Appellate Division finds that the appellate Court below as final Court of facts made a threadbare discussion and left no stone unturned, hence there was no room for misappreciation or mis-reading or any scope to no-consideration of evidence on record. Thus, it appears that the learned Judge of the Single Bench of the High Court Division erroneously disagreed with the finding of the appellate Court below. Consequently, the judgments and orders passed by the learned Judges of the Court’s below are hereby restored. ...Mohan Miah =VS= Abdur Rob, (Civil), 2021(2) [11 LM (AD) 451] ....View Full Judgment

It is settled principle that a Court of revision under section 115(1) of the Code of Civil Procedure can interfere with the findings of fact, as the final Court of facts, only in exceptional circumstances when the findings are shockingly perverse or these are vitiated by non-reading of the material evidence or mis-construction of any important documents affecting the merit of the suit.
The learned Judge of the appellate Court affirmed the judgment passed by the learned Judge of the trial Court on finding that the Court below has arrived at a concrete decision on the point of limitation and there is no scope to interfere with such findings and decision. Whereas the learned Judge of the Single Bench of the High Court Division erroneously made the Rule absolute on finding that the suit is barred by limitation. Appellate Division has no option but to interfere with the judgment and decree passed by the learned Judge in the Single Bench of the High Court Division. ...Abdus Sattar(Md.) =VS= Nazrul Islam(Md.), (Civil), 2021(2) [11 LM (AD) 457] ....View Full Judgment

In the absence of the opposite party and without issuing any Rule the order of the High Court Division cannot be sustained– It is an accepted principle that the opinion of an expert is a piece of evidence just as any other evidence and may be supported or controverted by other evidence. After considering all the evidence placed before the Court the learned Judge hearing the matter will decide on the veracity and credibility of any evidence produced by either party to the litigation. Moreover, both parties are at liberty to produce any evidence to support their case and equally they may produce evidence to counter the evidence produced by their opponent.
This Division has reiterated time and again that the High Court Division must not pass an order to the detriment of any party, who has not had the opportunity of being heard. In the instant case the High Court Division passed the impugned order in the absence of the opposite party and without issuing any Rule. The High Court Division was clearly in error in disposing of the civil revision without issuing any Rule and giving an opportunity for the opposite party to be heard. The order of the High Court Division is set aside and, accordingly, the civil petition for leave to appeal is disposed of. ...Advocate Ranjit Das =VS= Md. Safar Miah @ Sahar Ali, (Civil), 2021(2) [11 LM (AD) 5] ....View Full Judgment

State Acquisition & Tenancy Act, 1950
Section-96 r/w
The Civil Procedure Code
Section-115(2), 115(4)
Pre-emption– Preemptor filed an application under Section 96 of the State Acquisition and tenancy Act in the Court of Assistant Judge, 9th Court Dhaka giving rise to preemption Miscellaneous Case being No.69 of 2006. The case is being contested by the pre-emptee-petitioners by filing written objection. the pre-emptees filed an application for rejection of the pre—emption application on grounds (1) all necessary parties were not impleaded in the preemption application and (ii) in filing the pre-emption application, the preemptor did not comply with the provisions of Section 96 (3) of the State Acquisition and Tenancy - Act as amended in 2006. .....Alhaj Md. Maruf Hasan Swapan & another =VS= Kohinur Aziz & others, [1 LM (AD) 273] ....View Full Judgment

The Waqfs Ordinance, 1962
Section 64 r/w
The Code of Civil Procedure, 1908
Section 115
It has the power to interfere with the judgment only when there appears error of law apparent on the face of the record occasioning failure of justice. It has already been discussed earlier that under a proceeding arising out of section 64 of the Waqf Ordinance there is no scope to decide title or any dispute regarding the property. Only thing is to be looked into in such proceeding is whether the property belongs to a Waqf Estate and whether the occupier of it is an illegal occupier. The Administrator as well as the Deputy Commissioner in the present case after holding separate inquiries found the allegation of illegal occupation of 23 decimals of land by the present respondents, correct/proved and hence evicted the illegal occupants (present respondents No. 1 to 3) from the said property of the Waqf Estate. We are of the view that the High Court Division, while making the Rule absolute, failed to consider all these aspects and rather misdirected itself and as such came to an erroneous finding and conclusion which is required to be interfered with by this Division. Accordingly we find merit in this appeal. .....Alhaj Dr. Chowdhury Mosaddequl Isdani =VS= Abdullah Al Munsur Chowdhury, [5 LM (AD) 85] ....View Full Judgment

Specific Relief Act, 1877
Sections- 8, 9 r/w
Limitation Act, 1908
Article 142, 149 (Schedule-1)
Code of Civil Procedure, 1908
Section 115
Declaration of the title and recovery of khas possession–– The trial Court as well as the Appellate Court arrived at concurrent finding that the plaintiffs have been able to prove their title and possession followed by dispossession from the suit land. It appears that the findings of the trial court as well as the Appellate Court are based on the proper appreciation of evidence on record both oral and documentary. It is well settled position in law that under section 115 of the Code of Civil Procedure, the High Court cannot re-appreciate the evidence and cannot set aside the concurrent findings of the Courts below by taking a different view of the evidence. The High Court is empowered only to interfere with the findings of fact if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the Courts below. Simply because another view of the evidence may be taken is no ground by the High Court to interfere in its revisional jurisdiction [Masjid Kacha Tank, Nahan-Vs-Tuffail Mohammed, AIR 1991 SC 455]. The civil cases are decided on the basis of preponderance of probability. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given [Vishnu Dutt Sharma-V-Daya Sapra 13 SCC (2009) page 729]. In view of the facts, circumstances and proposition of law discussed above, we are of the view that the preponderance of probability regarding title and possession (before dispossession) of the plaintiffs to the suit land is clearly in favour of the plaintiffs and, there fore, the High Court Division made serious error of law in making the rule absolute which occasioned failure of justice. .....Proddut Kumar Das =VS= A Rashid Howlader, (Civil), 2024(1) [16 LM (AD) 472] ....View Full Judgment

CPC
Section 139
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.

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.

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.

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

The grant of restitution 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.

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. 10 BLT (AD)-2

The Code of Civil Procedure, 1908
Sections 144/151 r/w
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.

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.

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 6 BLT (AD)-123

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.

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.

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.

Specific Relief Act, 1877
Sections 9, 42 r/w
Code of Civil Procedure, 1908
Section 151
Declaration of title with recovery of khas possession– Inherent power cannot be invoked while acting under specific provisions of law– Erroneous insertion of plot number in the disputed patta as well as the plaintiffs’ kabala is a long pending dispute which could be corrected on filing a case for rectification of those deeds but the plaintiffs (respondents) sat idle for more than 50 years without taking such type of steps–– Appellate Division also holds the view that the High Court Division was wrong in making the Rule absolute and sending back the suit on remand to the trial Court directing further local investigation although the local investigation has been held as many as on three occasions and the evidence in this regard having been aptly dealt with by both the Courts below giving specific finding and assigning reasons. This Division further holds that erroneous insertion of plot number in the disputed patta as well as the plaintiffs’ kabala is a long pending dispute which could be corrected on filing a case for rectification of those deeds but the plaintiffs (respondents) sat idle for more than 50 years without taking such type of steps.
Appellate Division also finds that inherent power cannot be invoked while acting under specific provisions of law, the learned Judge of the High Court Division acted beyond the scope of the revision without averting the concurrent finding on title and possession as have been found by the Courts below. The impugned judgment and decree is hereby set aside. This Division restores the judgment passed by the trial Court as well as the Appellate Court below. ...Anwar Hossain(Md.) =VS= Kamrul Islam, (Civil), 2021(2) [11 LM (AD) 429] ....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.

Exercise of discretion­ Conflicting 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.

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.

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.

High Court Rules, Chap X ­The 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.

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.

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

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.

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 appellant­ The 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.

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.

The Code of Civil Procedure, 1908
Section 151 r/w Order VII, rule 11
The Town Improvement Act, 1953
Section 93A, 93C
Rejected plaint–– It is apparent that the instant suit was barred by law. The provision of Order VII, rule 11 of the Code of Civil Procedure is not exhaustive and the said provision does not limit the inherent power of the court to reject the plaint in a fit case. ––The learned Joint District Judge, rightly rejected the plaint. The High Court Division erred in law in entertaining the appeal inasmuch as on perusal of plaint it appears that relief claimed therein was barred by the above quoted provision law as such the plaint was liable to be rejected forthwith even without asking the defendant to file his written statement since he plaintiffs admitted in the plaint that the suit land was acquired by the Government. Accordingly, the trial Court did same. ––The judgment and decree of the High Court Division is set-aside. The plaint of the instant suit is rejected. The Civil Petition is disposed of in the light of the judgment and order of the appeal. .....Rajdhani Unnayan kartipakkha =VS= Shamsunnahar, (Civil), 2023(1) [14 LM (AD) 47] ....View Full Judgment

Inherent power under section 151 of CPC cannot be exercised on assumptions and presumptions of facts:
Whether the statements made in the plaint are false or not, are purely questions of fact and are to be decided at the trial. In rejecting the plaint, 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. In other words, the truth or falsity of the statements made in the plaint cannot at all be a ground to reject a plaint either be it under Order VII, rule 11 or under section 151 of the Code. …Md. Noor Hossain & ors. Vs. Mahbuba Sarwar & ors., (Civil), 4 SCOB [2015] AD 4 ....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

Non-substitution would not be fatal. Rather in the instant case the lawyer originally engaged by the deceased defendants represented the interest of the defendant appellants during the hearing of the rule— In the present case the plaintiff respondents were not aware of the death of the defendants during the pendency of the civil revision. If the party responsible for having the civil revision heard and disposed of can not be imputed with any mela fide intention not to substitute the legal representative or representatives of the party who died during pendency of any legal proceeding, non-substitution would not be fatal. Rather in the instant case the lawyer originally engaged by the deceased defendants represented the interest of the defendant appellants during the hearing of the rule. Appellate Division therefore does not find any prejudice caused to the defendant appellants for failure of their substitution on record in the High Court Division. The impugned judgment therefore suffers no illegality. .....Nasiruddin =VS= Tajul Islam, (Civil), 2024(2) [17 LM (AD) 263] ....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. 9 BLT (AD)-197

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

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.

Code of Civil Procedure, 1908
Sections 152 and 153 r/w
Companies Act [XVII of 1994]
Sections 107 and 233 r/w
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

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. 2 BLT(AD)-182

The Court may at any time correct any clerical or arithmetical mistake in the judgment, decree or orders or accidental errors arising there from either on its own motion or on the application of a party, but an amendment of a substantial nature, or amendment of the plaint is beyond the scope of this section. If the decree or order is sought to be varied for any reason other than clerical error or arithmetical mistake, it can be done only by way of review or by appeal. A Court apart from section 152 by virtue of its inherent power can alter or vary the order and the decree, but the Court must bring the amendment of the decree in conformity with and to harmonies the decree with the judgment. (Ismailullah vs Sukumar, 1986 BLD (AD) 251 = 38 DLR (AD) 125). But the amendment made by the Court by striking out some schedules from the plaint as well as from the decree was in no way done according to the provision of law. Nonetheless, the Court allowed the petition for amendment of decree vide order No.310 dated 18-5-2010 and as a result it was in violation of the provision of law and the decision of the apex Court. Such order was totally erroneous and the revisional Court's order upholding the same was equally erroneous. .....Nurul Islam =VS= Akkas Ali Sarder, (Civil), 2022(1) [12 LM (AD) 355] ....View Full Judgment

Extra-judicial confessional statement when strongly corroborated by the confessional statement of the other accused the submission that these confessional statements are not voluntarily and true is not substainable. There is sufficient evidence on record to prove that immediate after apprehension of the accused Helal by the local people he made extra-judicial confessional statement before so many persons stating that he him-self along with other accused persons including accused Rakibor @ Okibor raped victim Morsheda and thereafter murdered her. There are sufficient evidence also to prove that as per this confessional statement of accused Helal some incriminating articles, namely, bloodstained curtain, quilt cover, spade and bamboo rod were recovered from the dwelling hut of accused Helal. The extra-judicial confessional statement of accused Helal followed by recovery of incriminating articles from his dwelling hut not only are sufficient to find accused Helal guilty of the charge framed against him, but this extra judicial confessional statement has strongly corroborated also the confessional statement of the other accused. Rakibor @ Okibor. Md. Rokibur @ Rokib @ Okibar -Vs.- The State (Criminal) 2019 ALR (AD) Online 330 ....View Full Judgment

CODE OF CIVIL PROCEDURE, 1908
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