Authority of the Executive Committee of the Orphanage to deal with property; The Management/Executive Committee of the Orphanage had no authority to deal with the land other than for the purpose stipulated in the indentures. Those persons at the helm of the affairs of the Orphanage could not arrogate to themselves the authority to transfer the title in the property, which they themselves did not have. The Orphanage was given the property on a short term lease, which was apparent from the lease deeds. As long as these lease deeds existed and as long as the terms were not altered by the executant of the deeds none had the authority to deal with the land other than the purpose for which the lease was granted. …Mir Showkat Ali & ors. Vs. Md. Morsalin Khan & ors., (Civil), 12 SCOB [2019] AD 8 ....View Full Judgment

Abandoned property, suit for specific performance contract; In the suit for specific performance of contract the declaration of the suit property is not an abandoned property, is beyond the scope of the suit and such declaration has no legal value at all. …Govt. of Bangladesh Vs. Abdul Mannan & ors., (Civil), 13 SCOB [2020] AD 1
In a suit for specific performance of contract the only issue to be decided whether the contract was genuine or not and as such, though the Government is made a party to a suit for specific performance of contract as a requirement of law it is not bound by the decree. …Govt. of Bangladesh Vs. Abdul Mannan & ors., (Civil), 13 SCOB [2020] AD 1 ....View Full Judgment

Abolition of Death Penalty is not Possible: Our social conditions, social and cultural values are completely different from those of western countries. Our criminal law and jurisprudence have developed highlighting the social conditions and cultural values. The European Union has abolished death penalty in the context of their social conditions and values, but we cannot totally abolish a sentence of death in our country because the killing of women for dowry, abduction of women for prostitution, the abduction of children for trafficking are so rampant which are totally foreign to those developed countries. ...BLAST & Others Vs. Bangladesh & Others, (Civil), 1 SCOB [2015] AD 1

Rule of law is the basic rule of governance of any civilized society. The scheme of our Constitution is based upon the concept of rule of law. To achieve the rule of law the Constitution has assigned an onerous task upon the judiciary and it is through the courts, the rule of law unfolds its contents. One of the important concept of the rule of law is legal certainty. Judicial review of administrative action is an essential part of rule of law and so is the independence of judiciary. ...BLAST & Others Vs. Bangladesh & Others, (Civil), 1 SCOB [2015] AD 1

We would like to point out here that whenever the High Court Division grants certificate it ought to have formulated the points on which the certificate is granted containing inter alia that the case involves a question of law as to the interpretation of the Constitution or that the question is a substantial one. ...BLAST & Others Vs. Bangladesh & Others, (Civil), 1 SCOB [2015] AD 1 ....View Full Judgment

Afresh Suit:–– Sent back to the High Court Division for hearing afresh–– 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 for disposal in accordance with law on the evidence on record. If so advised, the defendants may file the documents which were exhibited before the trial Court and were taken back by them. The High Court Division shall consider those documents, if filed, along with the evidence on record. But in no case the High Court Division shall send the case back to either of the Courts below. .....Abul Hossain =VS= Jiban Nessa, [3 LM (AD) 1] ....View Full Judgment

Afresh Suit:–– Sent back to the High Court Division for hearing afresh–– The High Court Division also failed to consider that mere passing of a final decree and its execution thereof shall not debar a defendant to file an application under Order IX, rule 13 of the Code if, in fact, summons was not served upon him and he was affected by the very preliminary decree. The High Court Division was also wrong in relying upon the principle of law laid down.
We find no other alternative but to send the revision back to the High Court Division for hearing afresh and for disposal in accordance with law on the basis of the evidence on record. Accordingly, this 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 for disposal on merit in accordance with law considering the evidence. .....Masum Billah(Md.) =VS= Md. Saidur Rahman, [3 LM (AD) 268] ....View Full Judgment

Allotment of an Industrial plot in Mirpur Government Housing Estate for running business–– We are of the view that since the appellants are in possession of the suit land by constructing factories and has been running business incurring huge expenses, though the appellants did not fulfill the conditions of the allotment letter, for ends justice, we are inclined to maintain the allotment of the appellants. The suit land is of such nature that the respondents will have to allot the suit land to someone else , if it is cancelled. So, ends of justice would be met, if the allotment of the suit land is maintained in favour of the appellants, because they had already made improvements of the suit land and constructed buildings as well as running business thereon. We are also of the view that further justice would be met if the appellants are asked to pay the present market price of the suit plot. In this case, the appellants have to pay the present market price of the suit land, not the price based on which the plot was allotted to them vide allotment letter dated 22.11.1980. The appellants are directed to pay a sum of Tk.75,00,000.00 (seventy five lacs) as market value in respect of the suit land of the case within 06 (six) months from the date of this judgment. In default, the appeal shall stand dismissed. ...Begum Hosneara Alam =VS= National Housing Authority, [10 LM (AD) 174] ....View Full Judgment

Alternative Remedy:–– The Tribunal is created as an ‘alternative’ forum of the High Court Division in respect of specific purposes–– The observations made in Shaheda Khatun (supra) that if the action complained as is found to be coram non judice, without jurisdiction or malafide, the judicial review is available are based on the decisions on different premises and the said views cannot be applicable in service matters in presence of an alternative forum, and this forum is created as per provisions of the constitution. It is to be borne in mind that no case can be an authority on facts. The Tribunal is created as an ‘alternative’ forum of the High Court Division in respect of specific purposes. If any administrative action is found without jurisdiction or coram non judice or malafide, the Tribunal is competent to deal with the same and adjudicate these issues satisfactorily. These issues are within its constituents of the Administrative Tribunal. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, [4 LM (AD) 143] ....View Full Judgment

Appellate Court as the last Court of facts–– We find that the appellate Court as the last court of facts has meticulously discussed the evidence on record and rightly reversed the findings of the trial Court. The observation of the High Court Division that the appellate Court did not reverse the findings of the trial Court is not correct. The appellate Court has elaborately dealt with the points raised by the trial Court. The impugned judgement and order of the High Court Division is not sustainable. Hence, the appeal is allowed, without however, any order as to costs. .....Fatema Khatun (Mst.) =VS= Towhida Begum (Mst.), [4 LM (AD) 113] ....View Full Judgment

Appellate Court is the final Court of fact–– The High Court Division erred in failing to appreciate that the appellate Court was the final Court of fact, and the revisional Court could only interfere if there was misreading or non-consideration of evidence or misconception of law. No such infirmities were identified in this case. .....Government of Bangladesh =VS= Md. Sadek Ali, [4 LM (AD) 141] ....View Full Judgment

The appellate court being the last court of facts, it can not be disturbed in the revisional jurisdiction–– The burden of proof lies upon him who claims the same. I have also examined that the signature appearing over the dakhila in Bangali (sic, it would be Bangla), does not tally with the admitted signature Shafiuddin over the plaint and the vokalatnama filed before the court. I do not find any English signature of Shafiuddin in the record and as such I do not find any misreading of evidence and misinterpretation of evidence on record by the Appellate Court. .....Reazuddin Mondal =VS= Md. Shafiuddin, [3 LM (AD) 436] ....View Full Judgment

Audi Alteram Partem–– (Violation of principle of natural justice¬)–– It is a fundamental principle that the person or persons sought to be affected adversely must be given not only an opportunity of hearing but a fair opportunity of hearing. Since the cancellation of recognition and stopping payment of monthly pay order, in fact, are punishment to the students, teachers and employees of the Madrasha, principle of natural justice demands that before passing the impugned order an opportunity ought to have been given to the writ petitioners to explain their position but that has not been done. In Mohinder Shingh Gill vs The Chief Election Commissioner (AIR 1978 SC 851) Krishna Iyer, has made it clear that principle of natural justice is a vital part of rule of law.

The writ respondent appellants have violated the principle of "Audi Alteram Partem". We do not find any wrong in the judgment of the High Court Division which calls for any interference by this Division. ...Government of Bangladesh =VS= Md Sohrabuddin, [6 LM (AD) 14] ....View Full Judgment

After completion of works within the time stipulated the contractor did not get entire bill amount, filed Writ petition for remained unpaid bill–– The Appellate Division held that the writ respondent- petitioners, though admitted the claim of the writ petitioner- respondent, did not pay the entire bill amount. Even after such admission, they preferred Leave Petition against the judgment and order of the High Court Division, which is also unfortunate. In view of the facts and circumstances mentioned above, the petition is dismissed by the Appellate Division. .....Bangladesh & others =VS= Panaki Chowdhury, [1 LM (AD) 414] ....View Full Judgment

The appellate Court as the last Court of fact– The disputed land in Other Class Suit No.09 of 1995 and the land in Partition Suit No.25 of 1984 are not identical and the issues of those two suits are not same although the parties are same. The appellate Court further held the view that the trial Court failed to formulate the main issues (in Other Class Suit No.09 of 1995) such as on the point of limitation and the point of possession and dispossession and also failed to decide those non-formulated issues in light of the evidence and other materials on record which indicated that the judgment and decree passed in Other Class Suit No.09 of 1995 is not at all sustainable which is liable to be set aside and the suit should be sent back on remand for holding the trial afresh. Appellate Division also feels that those issues should have been formulated by the trial Court and those should be disposed of on the basis of the fact and circumstances as well as evidence on record for the sake of effecting adjudication of Other Class Suit No.09 of 1995. The revisional Court had not reversed the aforementioned finding of the learned Judge of the appellate Court below. .....Shafiul Alam(Md.) =VS= Rajia Bari, (Civil), 2022(2) [13 LM (AD) 85] ....View Full Judgment

Afresh Suit:–– Sent back to the High Court Division for hearing afresh–– 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 for disposal in accordance with law on the evidence on record. If so advised, the defendants may file the documents which were exhibited before the trial Court and were taken back by them. The High Court Division shall consider those documents, if filed, along with the evidence on record. But in no case the High Court Division shall send the case back to either of the Courts below. .....Abul Hossain =VS= Jiban Nessa, [3 LM (AD) 1]

Afresh Suit:–– Sent back to the High Court Division for hearing afresh–– The High Court Division also failed to consider that mere passing of a final decree and its execution thereof shall not debar a defendant to file an application under Order IX, rule 13 of the Code if, in fact, summons was not served upon him and he was affected by the very preliminary decree. The High Court Division was also wrong in relying upon the principle of law laid down. We find no other alternative but to send the revision back to the High Court Division for hearing afresh and for disposal in accordance with law on the basis of the evidence on record. Accordingly, this 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 for disposal on merit in accordance with law considering the evidence. .....Masum Billah(Md.) =VS= Md. Saidur Rahman, [3 LM (AD) 268]

Suit Afresh–– There is some formal defect in framing the suit the plaintiffs are permitted to withdraw from the suit with permissions to sue afresh–– The defect in the frame of the suit as pointed out in the application appears to us formal in framing the suit and because of such defect, the suit shall fail. Therefore, we find merit in the application and we are inclined to allow the same. The application is allowed. The plaintiffs are permitted to withdraw from the suit with permissions to sue afresh. The judgments and decrees of the Courts below as well as the impugned judgment and order are set aside. …Zahanara Begum =VS= Motiar Rahman(Md), [7 LM (AD) 107]

Allotment of an Industrial plot in Mirpur Government Housing Estate for running business–– We are of the view that since the appellants are in possession of the suit land by constructing factories and has been running business incurring huge expenses, though the appellants did not fulfill the conditions of the allotment letter, for ends justice, we are inclined to maintain the allotment of the appellants. The suit land is of such nature that the respondents will have to allot the suit land to someone else , if it is cancelled. So, ends of justice would be met, if the allotment of the suit land is maintained in favour of the appellants, because they had already made improvements of the suit land and constructed buildings as well as running business thereon. We are also of the view that further justice would be met if the appellants are asked to pay the present market price of the suit plot. In this case, the appellants have to pay the present market price of the suit land, not the price based on which the plot was allotted to them vide allotment letter dated 22.11.1980. The appellants are directed to pay a sum of Tk.75,00,000.00 (seventy five lacs) as market value in respect of the suit land of the case within 06 (six) months from the date of this judgment. In default, the appeal shall stand dismissed. ...Begum Hosneara Alam =VS= National Housing Authority, [10 LM (AD) 174]

Alternative Remedy:–– The Tribunal is created as an ‘alternative’ forum of the High Court Division in respect of specific purposes–– The observations made in Shaheda Khatun (supra) that if the action complained as is found to be coram non judice, without jurisdiction or malafide, the judicial review is available are based on the decisions on different premises and the said views cannot be applicable in service matters in presence of an alternative forum, and this forum is created as per provisions of the constitution. It is to be borne in mind that no case can be an authority on facts. The Tribunal is created as an ‘alternative’ forum of the High Court Division in respect of specific purposes. If any administrative action is found without jurisdiction or coram non judice or malafide, the Tribunal is competent to deal with the same and adjudicate these issues satisfactorily. These issues are within its constituents of the Administrative Tribunal. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, [4 LM (AD) 143]

Appellate Court as the last Court of facts–– We find that the appellate Court as the last court of facts has meticulously discussed the evidence on record and rightly reversed the findings of the trial Court. The observation of the High Court Division that the appellate Court did not reverse the findings of the trial Court is not correct. The appellate Court has elaborately dealt with the points raised by the trial Court. The impugned judgement and order of the High Court Division is not sustainable. Hence, the appeal is allowed, without however, any order as to costs. .....Fatema Khatun (Mst.) =VS= Towhida Begum (Mst.), [4 LM (AD) 113]

Appellate Court is the final Court of fact–– The High Court Division erred in failing to appreciate that the appellate Court was the final Court of fact, and the revisional Court could only interfere if there was misreading or non-consideration of evidence or misconception of law. No such infirmities were identified in this case. .....Government of Bangladesh =VS= Md. Sadek Ali, [4 LM (AD) 141]

The appellate court being the last court of facts, it can not be disturbed in the revisional jurisdiction–– The burden of proof lies upon him who claims the same. I have also examined that the signature appearing over the dakhila in Bangali (sic, it would be Bangla), does not tally with the admitted signature Shafiuddin over the plaint and the vokalatnama filed before the court. I do not find any English signature of Shafiuddin in the record and as such I do not find any misreading of evidence and misinterpretation of evidence on record by the Appellate Court. .....Reazuddin Mondal =VS= Md. Shafiuddin, [3 LM (AD) 436]

The Appellate Court being last Court of fact–– The Appellate Court being last Court of fact considered the evidence on record, both oral and documentary and found that the heba deeds in question were not executed by the donor. We find nothing wrong with the Appellate Court as well as the High Court Division in relying upon exhibit-‘2’ in coming as to the genuineness of the heba deeds. When the plaintiff categorically challenged that Md. Motaleb Miah was a literate person and there was no reason on his part to execute and register the heba deeds in question by putting the L.T.I., the onus was squarely upon the defendants to prove their genuineness by examining at least the witness who took his L.T.I in the deed. .....Ash Mohammad =VS= Most Imamun Nessa, [5 LM (AD) 54]

Audi Alteram Partem–– (Violation of principle of natural justice¬)–– It is a fundamental principle that the person or persons sought to be affected adversely must be given not only an opportunity of hearing but a fair opportunity of hearing. Since the cancellation of recognition and stopping payment of monthly pay order, in fact, are punishment to the students, teachers and employees of the Madrasha, principle of natural justice demands that before passing the impugned order an opportunity ought to have been given to the writ petitioners to explain their position but that has not been done. In Mohinder Shingh Gill vs The Chief Election Commissioner (AIR 1978 SC 851) Krishna Iyer, has made it clear that principle of natural justice is a vital part of rule of law. The writ respondent appellants have violated the principle of "Audi Alteram Partem". We do not find any wrong in the judgment of the High Court Division which calls for any interference by this Division. ...Government of Bangladesh =VS= Md Sohrabuddin, [6 LM (AD) 14]

Bill:–– After completion of works within the time stipulated the contractor did not get entire bill amount, filed Writ petition for remained unpaid bill–– The Appellate Division held that the writ respondent- petitioners, though admitted the claim of the writ petitioner- respondent, did not pay the entire bill amount. Even after such admission, they preferred Leave Petition against the judgment and order of the High Court Division, which is also unfortunate. In view of the facts and circumstances mentioned above, the petition is dismissed by the Appellate Division. .....Bangladesh & others =VS= Panaki Chowdhury, [1 LM (AD) 414]

Code of Conduct:–– An ordinary offender and a Judge cannot be equated at par while finding them guilty of the charges–– The question is whether the conclusion arrived at by the Council in forming the opinion by the President to remove Mr. Syed Shahidur Rahman from the office of a Judge on the ground of gross misconduct was in conformity with the provisions of the constitution. The conclusion of the Council is that the materials on record are sufficient to come to the conclusion that the allegations made against Mr. Syed Shahidur Rahman have substance. It merely disbelieved the receipt of Tk.50,000/- in the absence of corroborative evidence but it has totally believed the entire episode. What more else is required to prove about the misconduct of a sitting Judge of the highest Court by a woman? These findings and observations are sufficient to come to the conclusion that the Judge had not only violated the ‘Code of Conduct’ but also judicial ethics and norms which are sufficient to remove him from the office of a Judge. It is to be borne in mind that in adjudicating a disciplinary proceeding against a Judge of the highest court and holding trial of an offender in a criminal case, one cannot claim similar principle to be followed. For proving an offence against an offender, the prosecution must prove the offence against him beyond reasonable doubt but this doctrine cannot be applicable in respect of a Judge while hearing a disciplinary proceeding for removal of a Judge on the ground of gross misconduct. In the alternative, it may be said that an ordinary offender and a Judge cannot be equated at par while finding them guilty of the charges. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231]

Code of Conduct:–– A Judge’s official and personal conduct be free from impropriety–– A Judge’s official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than that expected of a layman and also higher than that expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231]

Code of Conduct:–– No member of his family, who is a member of the Bar, shall be permitted to use the residence the Judge–– No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231]

Complete Justice¬:–– An alienation by a Hindu widow with justifying necessity is valid transfer–– The contents of the kabala deed dated 28.10.1944 executed by Shushila in favour of Jagobandhu and ‘angikarnama’ dated 28.10.1944 executed by Jagobandhu in favour of Shushila it would be apparent that Shushila transferred the suit land to Jagobandhu for her maintenance. Accordingly, S.A. Record of right was prepared in the name of Jogabondhu. An alienation by a Hindu widow with justifying necessity is valid transfer. In the “Angikarnama” Jagobondhu made promise stating, Ò.....`wjj MÖwnZv‡K RxweZ _vKv ch©šÍ Avwg †LvivK, †cvlvK, jvjb I fiY‡cvlY Kwie| hw` bv Kwi Z‡e gvwmK †gvmev gs 15 UvKv wnmv‡e w`e|Ó The plaintiff himself as P.W.1 admitted in his evidence that, Ò Avgvi wcZvi m‡½ 9 bs weev`xwbi GB g‡g© wjwLZ `wjjc‡Î 28/10/44Bs Pzw³ nq †h, Avgvi wcZv 9bs weev`x‡K †Lvi‡cvl I gv‡mv nviv eve` cÖwZ gv‡m 15/- UvKv w`‡e|Ó It is true that the recitals in the deed regarding the legal necessity do not by themselves prove the legal necessity but the weight to be attached to such recitals. When the transaction took place many years ago, so that the original parties and the witnesses are not available to prove the circumstances in which alienation was made the alienation would be justified by legal necessity, particularly, when parties to the deed so recited. In view of such circumstances, it appears to us that Shushila transferred .90 acre of land to Jogobondhu on 28.10.1944 for her legal necessity. .....Paresh Chandra Shil =VS= Kali Bala Shil, [4 LM (AD) 295]

Corum non judice:–– If an order is said to be without jurisdiction the appropriate course open to the applicant is to plead to the Tribunal–– If an order is said to be without jurisdiction or is contrary to law, the appropriate course open to the applicant is to plead to the Tribunal with such plea and ask for vacating the order or action. It is altogether within the tenor of the Tribunal. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, [4 LM (AD) 143]

Coram non Judice–– If an order is said to be without jurisdiction or is contrary to law, the appropriate course open to the applicant is to plead to the Tribunal with such plea and ask for vacating the order or action. It is altogether within the tenor of the Tribunal. Coram non Judice is a Latin phrase which means ‘not in the presence of a judge’. It is a legal term typically used to indicate a legal proceeding held without a judge, with improper venue such as before a court which lacks the authority to hear and decide a case in question, or without proper jurisdiction. Appellate Division find no cogent ground why the Tribunal cannot deal with these issues for the reasons assigned above. Mere superficial pleadings on the point of fundamental rights will not confer any power on the High Court Division in respect of the terms and conditions of service. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, [4 LM (AD) 143]

Death certificate issued by Thana Statistical Officer–– The High Court Division, reversed this judgment and decree of the appellate court below basing mainly on the alleged death certificate, the exhibit-2. The High Court Division committed serious wrong and illegality in accepting this death certificate, the exhibit-2 and in decreeing the suit mainly relying on this exhibit-2. We don’t understand how the High Court Division could rely on this exhibit-2, the so-called death certificate issued by Thana Statistical Officer who had no authority to issue such death certificate and who could not tell even before court on what basis he issued this death certificate-the exhibit-2. The impugned judgment of the High Court Division cannot be sustained. .....Mohosin(Md) =VS= Mst. Angura Khatun, [5 LM (AD) 100]

Decree:–– The executing court cannot go beyond the decree–– The executing court cannot go beyond the decree. The decree was passed against the writ-respondent Nos.2 to 5 also and, therefore, the executing court had no jurisdiction to strike out their names from the execution case. .....Sheikh Sekander Ali & others =VS= Agrani Bank Limited & others, [1 LM (AD) 135]

Discretion–– Discretion, means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reasons. It is to be not arbitrary vague, and fanciful, but legal and regular. And it must be exercised within limit, to which an honest man competent to the discharge of his office ought to confine himself. .....Dr. Khairun Nahar & others =VS= Prof. M. Iqbal Arslan & others, [1 LM (AD) 63]

Dispose of the complaint within six months–– The original complaint was filed in the year 2013, we direct the Board to dispose of the complaint within six months from today. We also grant liberty to the complainant, if so required, to make an application before the Board for an appropriate interim order after completion of the pleadings and in which case, the Board may dispose of the application within three months. .....Gail (India) Ltd =VS= Petroleum and Natural Gas Regulatory Board, [1 LM (SC) 625]

Doctrine of legitimate expectation implement of contract–– The doctrine of legitimate expectation may be played into service in many cases particularly in contractual sphere while canvassing the implications underlying the administrative law. Such expectation can be claimed if the decision of the authority deprives a person the benefit or advantage which he had enjoyed and which he can legitimately expect to continue until he is intimated some rational grounds for withdrawing it and that he has been given an opportunity or that he has received an assurance that it will not withdraw the benefit without giving an opportunity of advancing reasons. Legitimate expectation gives the claimant sufficient locusstandi for judicial review and it operates in the domain of public law and in appropriate cases give rise to substantive as well as procedural rights. There is no neglect and laches on the part of the writ petitioner to implement the agreement. It has also spent huge amount of money after taking over possession towards the improvement of the Mills. Therefore, the writ petitioner’s expectation of getting a registered instrument upon payment of the balance consideration cannot be taken away by the authority unilaterally. The High Court Division, in the premises, acted no illegality in making the rule absolute. .....Government of Bangladesh =VS= Refat Garments Limited, [5 LM (AD) 173]

Donation–– We direct the M.H. Samarita Medical College, 117 Tejgaon, Love Road, Dhaka to pay Tk.75,00,000/- to the Children Heart Foundation & Research, Dhaka having office at center point concord, space: 5/B, 14/A & 31/A Tejkunipara Tejgaon, Dhaka and Tk.25,00,000/- to the National Liver Foundation of Bangladesh totaling Tk.1,00,00,000/- within 7(seven) days from the date of receipt of the order and submit the receipts of donation before the Registrar General, Supreme Court of Bangladesh, Dhaka. Pursuant to deposit of donation for charitable purposes, the Dhaka University shall accord registration and issue registration cards to the writ petitioners in Writ Petition Nos.13572 of 2016 and 13272 of 2016 in the first year BDS and MBBS examinations respectively. In case to failure to make the donation, M.H. Samarita Medical College and Dental unit shall be debarred from admitting students for the academic sessions 2017-2018. The rules issued by the High Court Division are discharged. These petitions are accordingly disposed of. .....Registrar, University of Dhaka =VS= Tanjina Akter, [3 LM (AD) 438]

Exemption of customs duty and sale tax On-Highway Truck/Off-Highway dump truck–– Plant mentioned in SRO 484(I)/92 dated 14.05.1992 bringing the Off- Highway dump trucks within its ambit. On-Highway truck is meant for long hauls, it also has a bunk in its cabin for its use as driver’s sleeping area. In contrast to such utility, the Off-Highway dump truck, as decided by us in the case of Collector of Customs Vs. D.G. Khan Cement Company Limited is specifically designed for use in difficult terrains where the activities of mining, quarrying or construction of big buildings are carried out. Purely on account of the specific design and utility of Off-Highway dump trucks in the industrial process of cement production that the same were brought within the ambit of plant. Respondent companies were not entitled to claim exemption under SRO 575(I)/2006 dated 5.6.2006 and SRO 530(I)/2005 dated 6.6.2005 on Volvo FM 400 trucks that were imported by them as the same were found to be On-Highway trucks and not Off-Highway dump trucks. The customs authorities shall recover the customs duties and Sales Tax on all eighteen Volvo FM 400 trucks imported. .....Collector of Customs =VS= M/s Best Way Cement, [1 LM (SC) 639]

Findings:–– High Court Division was not empowered or authorized to set aside those findings without any specific finding–– The High Court Division was not empowered or authorized to set aside those findings without any specific finding that the Court of appeal either misread or failed to consider in interfering any material evidence and thus erred in law with the judgment and decree of the Appellate Court. We ourselves have gone through the evidence any material we have not found any misreading or non-consideration of evidence by the Court of appeal. The judgment and order passed by the High Court Division in Civil Revision No. 2148 of 1999 is hereby set aside and those of the Appellate Court dismissing the suit is restored. .....Abdus Sobhan =VS= Md. Afzal Mia, [4 LM (AD) 12]

Fraud document create–– The judgment and order of the appellate Court that it was observed that the contesting defendants claimed that the plaintiffs had created the document Exhibit-4 by fraud, but did not particularise the elements of fraud. The appellate Court deduced from the evidence of D.W. 1 that Moijan must have died around the year 1963 and, therefore, had the right to transfer her share of .42 acre, which she did in the kabala dated 10.6.1958. The appellate Court held therefore, that the share of Moijan did not pass on to defendant No. 1 after her demine (demise) as she had already transferred her share to the plaintiffs by the kabala (Exhibit-4), and, therefore, defendant No. 1 did not have the right to transfer the said .42 acre of land to defendant Nos. 5-9 by virtue of register heba deeds dated 13.11.1968 and 19.06.1983. .....Shamar Uddin Mollah & others =VS= Ahammad Ali Mollah & others, [1 LM (AD) 326]

Fraud practiced upon Court–– The Appellate Division held that since the judgments were obtained by practicing fraud upon the court, Appellate Division has no alternative but to set aside the said judgments of the Company Court and the persons concerned should be put to justice. Appellate Division direct the Registrar to file complaints before the Chief Metropolitan Magistrate, Dhaka against the respondent(s) for using forged documents for securing judgments from the Company Court. .....Bangladesh Bank =VS= Eagleway Investment Ltd & others, [1 LM (AD) 337]

Fraud vitiates all judicial proceeding–– There is no existence of Title Suit No.587 of 1970, so the judgment and decree passed in Title Suit No.587 of 1970 dated 15.03.1971 is also non-existent in the eye of law. The question of binding effect of the judgment and decree of Title Suit No.587 of 1970 dated 15.03.1971 upon the appellants is completely fictitious. The appellants are not under any legal obligations to release the property from the list of vested property in favour of the respondents. The High Court Division made a serious error of law making the Rule absolute based on fictitious judgment and decree passed in Title Suit No.587 of 1970 dated 15.03.1971, which has no existence at all. So, we are constraint to interfere with the judgment and order passed by the High Court Division in Writ Petition No.6053 of 2008 on 17.12.2009. Accordingly, the judgment and order passed in Writ Petition No.6053 of 2008 on 17.12.2009 is set aside. The appeal is allowed. ...Ministry of Land, Bangladesh =VS= Sadeque Ahmed Nipu, [10 LM (AD) 692]

Fraud:–– Transaction between the parties were fraudulent–– As soon as the letters of credit are established between the issuing bank and negotiating bank, it becomes an independent agreement between the two banks, neither the seller nor the buyer has privity to that agreement. It is by nature a separate transaction from the sale agreement between the seller and the buyer. Any allegation of fraud has to be proved strictly by adducing evidence. View that the claim of fraud is somewhat belated and also that the petitioner has not been able to establish its claim of fraud having been practiced. Admitted that defendant Nos.2 and 3 are not the same person. The petitioner had claimed that defendant Nos.2 and 3 were one and the same person and, therefore, the transactions between them were fraudulent paper transactions. Moreover, evidently the petitioner accepted the genuineness of the instruments and encashed some of them. In view of the above discussion, we do not find any illegality or impropriety in the impugned order. .....Oriental Bank Ltd. =VS= Export Import Bank of Bangladesh Ltd., [4 LM (AD) 291]

Fraud/ Auction:–– Low price selling the property on auction vitiated by fraud–– The property was sold at Tk.7,30,00,000/- on 01.12.2014 despite the assessment of the valuation at Tk.40,7,90,862/- on 25.03.2014. This shows that the petitioner’s tannery was sold at a shockingly low price. Selling of property at a shockingly low price which is evident on the face of the record is a material irregularity in conducting the sale and if the court is satisfied that the price was shockingly inadequate, it may interfere with the sale. The sale of the property hurriedly ignoring the valuation assessed by an engineer and the conduct of the receiver proved beyond doubt that the sale was vitiated by fraud. There was deliberate collusion between the receiver, the auction purchaser and the officials of the court in conducting the sale at a shockingly low price. Therefore, we are not persuaded to maintain the sale. We direct the petitioner Jamila Tannery Limited to deposit Tk.7,30,00,000/- plus TK.75,00,000/- as compensation for payment to the auction purchaser and Tk.25,00,000/- to the bank as cost of the litigation plus receiver’s remuneration by 26.10.1917 with the Bankruptcy Court, failing which, the auction sale shall stand. The pay order/bank draft deposited by the petitioner be released forthwith subject to payment of money as mentioned above. This petition is disposed of with the above observations and directions. .....Jamila Tannery Limited =VS= Bangladesh, [4 LM (AD) 264]

Full relief to the judgment-debtor without issuing any rule–– The High Court Division has given the full relief to the judgment-debtor without issuing any rule and also without affording the decree-holder and the auction purchaser an opportunity to controvert their claims. It has been repeatedly held by this Division that granting. In the latter case this Division reaffirmed the views taken by the Supreme Court of Pakistan and observed that "without issuing any rule while disposing of the application under Article 102 of the Constitution the High Court Division was not authorized in law to pass any ad-interim relief which it could only be passed in aid of or ancillary to the main relief that may be granted upon final determination of the rights of parties in order to maintain status quo ante in the pending suit proceeding before it.” ...Farid Uddin Mahmud =VS= Md. Saidur Rahman, [9 LM (AD) 247]

General Average Bond and General Average Guarantee–– We are of the view that before delivery of the cargo, the interest of the vessel is required to be protected by way of some security. We are of the view that ends of justice would be sufficiently met if the plaintiff, respondent No. 1 herein, is directed to furnish appropriate General Average Bond and General Average Guarantee in the sum of US$ 180,000.00 as assessed by Albatross Adjusters Limited (annexed in the additional paper book dated 26.02.2018). On furnishing the aforesaid General Average Bond and General Average Guarantee in favour of the ship owners, the petitioner herein, shall discharge the cargo as directed by the Admiralty Court. .....Bene Maritime Inc =VS= Aman Feed Limited, [4 LM (AD) 93]

Gift/ Heba:–– Declaration suit gift–– Careful scrutiny of all the materials on record, we do not find any earthly reason why the plaintiff would gift a six-storey building, which appears to be their family home, to one of her children while depriving all her other children. In the light of the facts and circumstances discussed above, we find that the impugned judgement suffers from misreading as well as non-consideration of relevant evidence and materials, which in our view calls for interference. For the reasons stated above the appeal is allowed, without, any order as to costs. The impugned judgement and order of the High Court Division is set aside and the judgement and decree of the trial Court is restored. ...Mosammat Kamran Nessa =VS= Haji Hafez Md. Sharif Uddin, [6 LM (AD) 17]

Inherent power:–– Despite the absence of any provision empowering the Tribunal to pass any interim order–– Despite the absence of any provision empowering the Tribunal to pass any interim order, the Tribunal is not powerless since it has all the powers of a civil court and in proper cases, it may invoke its inherent power and pass interim order with a view to preventing abuse of the process of court or the mischief being caused to the applicant affecting his right to promotion or other benefit. But the Tribunal shall not pass any such interim order without affording the opposite party affected by the order an opportunity of being heard. However, in cases of emergency, which requires an interim order in order to prevent the abuse of the process and in the event of not passing such order preventing such loss, which cannot be compensated by money, the Tribunal can pass interim order as an exceptional measure for a limited period not exceeding fifteen days from the date of the order unless the said requirements have been complied with before the expiry of the period, and the Tribunal shall pass any further order upon hearing the parties. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, [4 LM (AD) 143]

Judgment:–– A Judge should dispose of promptly In no case a judgment shall be signed not later than six months–– A Judge should dispose of promptly the business of the court including avoiding inordinate delay in delivering judgments/orders. In no case a judgment shall be signed not later than six months of the date of delivery of judgment in exceptional cases. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231]

Lease deed–– The Management/ Executive Committee of the Orphanage had no authority to deal with the land other than for the purpose stipulated in the indentures–– We are of the view that the lease deeds, Annexure-‘A’ series are short term leases incorporating specific terms and conditions, breach of which would result in the land reverting to the Government. The Management/Executive Committee of the Orphanage had no authority to deal with the land other than for the purpose stipulated in the indentures. Those persons at the helm of the affairs of the Orphanage could not arrogate to themselves the authority to transfer the title in the property, which they themselves did not have. The Orphanage was given the property on a short term lease, which was apparent from the lease deeds. As long as these lease deeds existed and as long as the terms were not altered by the executant of the deeds none had the authority to deal with the land other than the purpose for which the lease was granted. The agreements entered into between respondent Nos.15 and 17 and respondent No.16 as well as the power of attorney are, therefore, illegal and void ab initio and of no legal effect. 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 No.133 of 2017 is dismissed. Consequently, the Civil Petition for Leave to Appeal Nos.530 of 2017 and 633 of 2017 are also accordingly dismissed. ...Mir Showkat Ali =VS= Morsalin Khan(Md.), [6 LM (AD) 245]

Lease cancelled on the allegation of failure to make any construction in the disputed plot–– We have already held that the People’s Jute Mills Ltd. has accepted the judgment and order of the Writ Petition No.137 of 1996, it has been decided that disputed property is abandoned property. It is also admitted that the original allottee People’s Jute Mills Ltd. did not make any construction in the disputed land before its dispossession inasmuch as lease was cancelled after 24 years of allotment. The People’s Jute Mills Ltd. has not yet prayed any relief against subsequent lease deeds executed in favour of added respondents and also it did not make any prayer for recovery of possession of the disputed land though admittedly it was dispossessed in 1992. The appeal is dismissed. …Khalishpur Jute Mills Ltd. =VS= Rajdhani Unnayan Kartipakkha, [7 LM (AD) 123]

Lease:–– Permission for chopping down 2096 standing trees in Jhemai Tea Estate–– The agreement of lease between the Government and the writ petitioner provides for extension of tea garden on the lease hold land may be permitted to cut down the trees subject to certain terms and conditions–– The agreement of lease between the Government and the writ petitioner provides a clause for extension/ expansion of tea garden on the lease hold land. Moreover, tea is one of our exportable item earning foreign currency as well as fulfilling the local demand of tea, which is increasing day by day. Moreover, tea gardens with shed trees are also greeneries and such gardens are also causing emission of oxygen in the atmosphere and absorbing CO2 . Tea gardens also take active part in the photosynthesis process. Therefore, for the purpose of sustainable development as well as to protect the environment, Writ Respondent No.7 may be permitted to cut down the trees for which permission has been given to it by the concerned authorities subject to certain terms and conditions as mentioned hereinafter: (1) Immature trees cannot be cut down. (2) Before cutting down each trees, two saplings are to be planted in suitable places of Jhemai Punjee area. (3) After nourishing newly planted saplings for at least three years, the leave respondent No.7 would be entitled to chop down old and matured trees only from Jhemai Punjee under the supervision of the Local Officials of the Department of Environment and the Department of Forest. …Rana Surong =VS= Government of Bangladesh, [7 LM (AD) 139]

Mala fides:–– What is mala fides?–– “Mala fides or bad faith” means dishonest intention or corrupt motive in the exercise of powers or a deliberately malicious or fraudulent purpose, on the part of the decision maker. Mala fides includes those cases where the motive force behind an action is personal animosity, spite, vengeance, personal gratification or benefit to the concerned authority or its friends or relatives. (Halsbury’s Laws of India, Vol-1, P.319 and CS Rowjee V. A.P., AIR 1964 SC 962). An independent ground of attack, malafides (Malice in fact) should be distinguished from mala fides (malice in law). According to Megaw LJ, it always involves a grave charge and it must not be treated as a synonym for an honest mistake. (District Council V. Kelly, (1978) 1 All ER 152). There is malice in law where “it is an act done wrongfully and willfully without reasonable or probable cause and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others’. (A.P. V. Goverdhanlal Pitti, (2003) 4 SCC 739). Colourable exercise of power is equated with malice in law (Wadhwa V. Bihar, AIR 1979 SC 659) and in such a case, it is not necessary to establish that the respondent was actuated by a bad motive. (Venkataraman V. India, AIR 1979 SC 49). (Surendra Kumar Sinha, CJ). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, [6 LM (AD) 272]

M.P.O./ MPO/ Monthly Pay Order: M.P.O.–– The granting of M.P.O. is the policy decision of the Government. Therefore, the petitioners could not claim the same as of right unless infringement of legal right or violation of law–– The granting of M.P.O. is the policy decision of the Government. Therefore, the petitioners could not claim the same as of right. This Division is of the view that teachers and staffs of the Non-Government School and College could not claim the M.P.O. as a matter of right and as such, direction could not be given unless infringement of legal right or violation of law. We are of the considered view that the instant writ petition is not maintainable. We find merit in the petition, however, we are not inclined to grant leave, rather, dispose of the instant Civil Petition for Leave to Appeal as the writ petition was not maintainable. …Government of Bangladesh =VS= Md. Nazrul Islam, [7 LM (AD) 208]

M.P.O–– Striking out the name of the writ-petitioner from the list of Monthly Payment Order (M.P.O.)–– Before delisting the name of respondent No.1 from the list of M.P.O., no notice for showing cause was served upon her and as such, the principle of natural justice has been violated. Therefore, the High Court Division rightly declared the action illegal. This civil appeal is dismissed without any order as to costs. ...Ministry of Education, BD =VS= Mrs. Kanij Salma, Lecturer, [10 LM (AD) 199]

M.P.O–– Monthly Pay Order (MPO) (government portion of the salary–– The High Court Division directed the leave-petitioners to settle the index number of the writ-petitioner’s Monthly Pay Order (MPO)and to pay the writ-petitioner’s earlier MPO with effect from 14.10.2004 within 3 (three) months from the date of receipt of a copy of the judgment and order of the High Court Division. The findings arrived at and the decision made by the High Court Division having been based on proper appreciation of law and fact do not call for interference. Accordingly, this civil petition is dismissed. .....Ministry of Education =VS= Md. Zahurul Haque, [3 LM (AD) 272]

Nationalization of school it is the policy decision of the Government–– The Constitution does not permit the High Court Division to direct or advise the executive in the matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the executive provided the authorities do not transgress their constitutional limit or statutory power. The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizen or is opposed to the provisions of the Constitution. It can not interfere the correctness of the reason which prompted the Government to nationalize Raypur Merchants Academy instead of Raypur L.M. Pilot Model High School. It is not a matter of concern of judicial review and the Court is not the appropriate forum for such investigation. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after consideration of all the points from different angles. In assessing the propriety of a decision of the Government the High Court Division cannot interfere even if a second view is possible from that of the Government. The Court has to consider whether a decision making authority exceeded its powers, committed an error of law, violated rules of natural justice, reached a decision which no reasonable man would have reached or otherwise abused its power. We do not find any error in the impugned administrative decision for which it can be said that the executive authority exceeded its’ power or committed an error of law or violated the principles of natural justice and, thus, the judgment of the High Court Division does not call for any interference. ...Raypur L.M. Pilot Model High School =VS= Ministry of Education, [6 LM (AD) 269]

Natural Justice¬:–– Disciplinary enquiry-Natural justice-Non application of mind–– The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the Enquiry Officer or the Disciplinary Authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. .....Allahabad Bank =VS= Krishna Narayan Tewari, [3 LM (SC) 1]

Natural Justice¬:–– When a petition/memo is filed in the wrong jurisdiction or forum–– It is common practice to allow a party to file a petition/memo in the proper form when it is observed that the said memo/petition was filed in the incorrect form. In other words where instead of filing an appeal a revision was filed, direction would be given to either convert the revision into an appeal or to file the appeal afresh. In such circumstances, usually the time consumed in proceeding under the wrong jurisdiction or forum is directed to be deducted. Equally when a memo/appeal is filed instead of petition for revision the Court may direct that the appeal be treated as revision. …Kutub Uddin =VS= Syed Moinuddin Ahmed, [7 LM (AD) 31]

Natural Justice¬:–– When judicial review is permissible–– It is only in exceptional cases when the principles of audi alteram partem have not been followed or the affected Judge has not been afforded sufficient opportunity to examine witnesses or cross-examine the witnesses, judicial review against his removal is permissible but otherwise not. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231]

New Rule effective and applicable–– The new rules adding new terms and conditions including the one as to the promotion to the next higher posts shall be effective and applicable to the employees, who will be appointed after the coming into effect or force of the same. .....Bangladesh Bank & another =VS= Sukamal Sinha Choudhury & another, [1 LM (AD) 56]

Observation–– Judicial domain requires dispassionate approach and the importance of issues involved for consideration is no justification to throw to winds basic judicial norms. Observation should not be made by the Court against any person unless it is essential for decision of the case. ...Hosneara Begum, Adv. =VS= A.K.M. Bahauddin alias Bahar, [9 LM (AD) 669]

Observation is expunged–– Review–– While quashing the criminal proceeding this court observed that the period of occurrence in respect of the incident is hit by section 234 of the Code of Criminal Procedure. This observation is made through overlooking sub-section (1B) of section 6 of the Criminal Law Amendment Act, 1958. The above observation is expunged. These petitions are disposed of with the above expunction and observations. .....Manzur Ahmed =VS= Government of Bangladesh, [5 LM (AD) 205]

Observation of the Court–– A Court has right to make observation(s) in dealing with a matter, but it cannot make any observation(s) about the behavior or action of the writ respondent(s) in future, particularly, about the possible disobedience or violation of the order/direction/ observation of the Court, the reason being that when a Court passes an order or gives a direction or makes an observation it is presumed that such order/direction/ observation shall be obeyed and complied with in its true purport and spirit. And if the Court itself nourishes an element of doubt in its mind as to the obedience or the compliance with its order/ direction/observation, then there cannot have any meaning in passing such order/ giving such direction/making such observation. And such kind of doubt by a court shall make the people's confidence in the administration of justice shaky. We would like to add further that a Court must always pass an order/give direction/and make observation in a positive way to ensure fair justice and not in a manner as quoted hereinbefore. .....Land Reform Board =VS= Md Hamdu Miah, [5 LM (AD) 117]

Overrule the Appellate Division–– An overruled point of law cannot be ignored by this court and when a proposition of law has been settled, which is binding on all courts and though it is not binding on this court, it can overrule the said decision. A decision of a court overlooking a decision, or if it is contrary to law, constitutes an error apparent on the face of the record justifying its review. It is immaterial whether such error occurred by reason of lawyer’s mistake or oversight on the part of the court. The appeal is allowed without any order as to cost and the leave petitions are disposed of. The judgment in the appeal shall govern the leave petitions. .....Bangladesh Biman Airlines Ltd. =VS= Captain Mir Mazharul Huq, [4 LM (AD) 66]

Owners cannot dispossess the tenants before approval of plan by the RAJUK for constructing the multi-storey building on the plots–– The owners cannot dispossess the tenants before approval of plan by the RAJUK for constructing the multi-storey building on the plots and till such date the shop keepers shall remain in possession of the shops. The construction must be completed within three years from the date of taking possession and in case of failure to handover possession within the above time, the landlords shall pay compensation to the tenants. .....Banichitra Pratisthan Ltd. =VS= Bilkis Begum, [3 LM (AD) 46]

Pleading of the plaintiff is not evidence–– As no witness was examined, no statement was made before the Court in relation to matters of fact under inquiry, that means, the facts stated in the plaint were not stated before the court on the date fixed for hearing of the suit and, in fact, it was only the pleading of the plaintiff and not the evidence which was before the Court. Therefore, in the absence of any evidence, the trial Court could not decree the suit. .....Government of Bangladesh =VS= Md. Mizanur Rahman, [4 LM (AD) 138]

Possession:–– No break in respect of the possession of the petitioner–– There was no break in respect of the possession of the petitioner in the case land, made the Rule absolute declaring that the impugned order of eviction was issued without lawful authority and is of no legal effect. Moreso, since the Government having granted lease to the petitioner at a subsequent stage, and the lease never having been cancelled by the Government, the petitioner acquired valid and lawful right in respect of the land in question and this right, interest and possession of the lease hold property cannot be disturbed at the instance of a stranger. .....Nurul Amin(Md.) =VS= Dullah Miah, [3 LM (AD) 428]

Purchase deed:–– Appellate Division view that the reasons stated by the High Court Division for allowing the production of the purchase deed dated 01.03.1971 of the added plaintiff is justified. .....Harunur Rashid & others =VS= Mosammat Yarun Nissa & others, [1 LM (AD) 385]

Recovery of possession:–– Possession of the suit land so the plaintiff having not made any prayer for recovery of possession of the suit land–– All the three courts below committed wrong and illegality in dismissing the suit of the plaintiff holding to the effect that the plaintiff’s suit is not maintainable without prayer for setting aside the judgment and decree passed in title Suit No.107 of 1968 and without prayer for recovery of khas possession. The plaintiff acquired valid right, title and interest in the suit land by virtue of purchase by a registered kabala of the year 1963, the exhibit-7 and he has also proved his possession in the suit land. In the circumstances the plaintiff is entitled to get the decree as prayed for. .....Masud Alam =VS= Abdul Khaleque Miah, [3 LM (AD) 261]

Recovery of possession:–– Recovery of khas possession of the suit land–– We find from the cross-examination that he was not present at the time of the settlement with the family members. His wife was present. She was not called to give evidence. In his cross-examination DW2 (defendant No.2) admitted that the plaintiff got land in all the plots at the time of amicable settlement which took place after his father's death in 1995. Hence the judgement of the appellate Court was palpably wrong and the High Court Division correctly reversed the same upon giving cogent reasons. Since there was admittedly amicable settlement within the family there is no question of filing a further suit for partition. In the light of the facts and circumstances discussed, we do not find any illegality or infirmity in the impugned judgement, which in our view does not call for any interference. The appeal is dismissed. ...Harmuj Sarker =VS= Mohammad Anis, [6 LM (AD) 114]

Recovery of possession:–– Suit was not maintainable without the prayer for recovery of possession–– It would not be proper to remand the case after 30 years of it’s institution allowing the plaintiff to prove the deed produced by the defendants forged. We have already held that the plaintiffs have admitted the possession of the defendants in the suit land and that the instant suit was not maintainable without the prayer for recovery of possession, we are of the view that the prayer for remand of Mr. Samader does not deserve any consideration. We do not find any merits in the appeal. .....Parmalundra Joydhar =VS= Bhagirath Talukder, [5 LM (AD) 95]

Recovery of excess payment–– In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. .....High Court of Punjab & Haryana =VS= Jagdev Singh, [1 LM (SC) 623]

Review–– We have given our anxious consideration to the facts and circumstances of the case and we are of the view that the ends of justice would be best served if the appeal filed by the Government before the High Court Division is heard on merit. The order dated 12.06.2016 is set aside after reviewing the same. The judgment and order dated 21.04.2013 passed by the High Court Division is set aside and the delay of 643 days in preferring the appeal before the High Court Division is condoned. The High Court Division is directed to register F. A. T. No.571 of 2012 as First Appeal and to dispose of the same in accordance with law. ...Government of Bangladesh =VS= Samsuddin Monir Khan, [6 LM (AD) 141]

Review–– The decisions and steps taken for protection of the villages from the erosion of the river Meghna are totally executive decisions of the Government. The policy decision of the Government may be interfered with only when the same is illegal or unconstitutional–– The decisions and steps taken for protection of the villages from the erosion of the river Meghna are totally executive decisions of the Government. The policy decision of the Government may be interfered with only when the same is illegal or unconstitutional or shockingly arbitrary in the wednesbury sense. It is the duty of the policy maker to decide how a village would be protected from erosion of a river and what would be the acceptable proposal for embankment works and what would be the proper way of implementation of proposal of embankment considering the financial capacity of the Government. The instant case, in fact, the High Court Division, ignoring constitutional limitation directed the executive to sanction money instead of wheat for protection of the above mentioned villages from erosion of the river Megna. Our considered view is that the impugned judgment and order passed by the High Court Division was unlawful. The review petition is disposed of. …Ministry of Finance, Bangladesh =VS= Salim Khan (Md.), [7 LM (AD) 236]

Revisional jurisdiction:–– High Court Division exercising revisional jurisdiction is very limited–– Where the trial Court and the appellate Court come to a decision which is not conflicting, and the finding is concurrent, the function of the High Court Division exercising revisional jurisdiction is very limited. It can only look to see whether there was any misreading or non-consideration of evidence on record or any misconstruction of law. We find that there was nothing on record to suggest as to whether any step was taken after the expiry of the 11 years’ term to extend the tenancy or to acquire title to the property in any other way. We are, therefore, of the view that the trial Court and the appellate Court rightly dismissed the suit for declaration of title. We do not find any illegality or impropriety in the impugned judgement, which in our opinion does not call for any interference. .....Jahangir (Md.) =VS= Noor Mohammad, [5 LM (AD) 142]

Right of appeal:–– Third party right to file an appeal–– Even a third party can file an appeal in case he is affected by a decree passed in a suit. .....Rasheda Begum & others =VS= Abul Hashem & others, [1 LM (AD) 168]

Solatium to the defendant–– We are inclined to give a solatium to the defendants, the heirs of Anu Mia. Considering all aspects we fix the solatium at Tk.1,60,000/- (one lac sixty thousand) to be paid by the plaintiffs to the defendants, the heirs of Anu Mia. .....A. K. M. Abdul Ali =VS= Rafiqul Islam, [3 LM (AD) 37]

Statutory deposit:–– Statutory deposit along with an additional 8% as interest was not made. The High Court Division rejected the contention and discharged the Rule. It appears to us that the point raised by the pre-emptees also requires determination of facts. Since the hearing of the case has already commenced, the point raised by the pre-emptees can very well be agitated before the trial Court along with the other issues. And if such a point is agitated, whatever observations and findings have been given in the impugned judgment and order by the High Court Division on the said point shall not be binding upon the trial Court in deciding the same afresh. The trial Court shall dispose of the same along with the other issues in accordance with law. .....Alhaj Md. Maruf Hasan Swapan & another =VS= Kohinur Aziz & others, [1 LM (AD) 274]

Summons:–– Service of Summons–– The High Court Division was not also factually correct in finding that summons of the suit was not served upon defendant No.3, as report of the process server clearly showed that summons of the suit was served upon defendant No.3 by hanging and he gave report to that effect. Merely because the fact of service of summons upon defendant No.3 was not recorded in the order sheet, it may be through inadvertence which did not make the report of the process server as regards service of summons upon defendant No.3 ineffective or nonest. .....Rasheda Begum & others =VS= Abul Hashem & others, [1 LM (AD) 243]

Suo Motu Rule–– To pay Tk. 50,00,000/- (fifty lac) jointly to the bereaved family of victim–– Over the said incident a case has already been instituted and the police of Paltan Police Station has taken investigation. Since an investigation is pending over the said incident, the High Court Division acted illegally in directing to lodge the F.I.R against specified officials of the Dhaka City Corporation south, Dhaka. If the investigating agency finds prima facie case then it may submit police report against the persons who have shown negligence in keeping open the manhole. The observations and direction so far it relates to lodging the F.I.R and taking legal action by the High Court Division are hereby expunged. We direct the City Corporation South, Dhaka and Dhaka WASA to pay Tk. 50,00,000/- (fifty lac) jointly to the bereaved family of victim Sano Mia equally within 6(six) weeks from the date of receipt of the order. .....Rustom Ali(Md.) =VS= The State, [5 LM (AD) 158]

Unconditional apology–– We are not inclined to uphold the order of cancellation of the allotment of land made in favour of the University or dislodge the university from Plot No.4 to an alternative site. However, considering the gravity of the situation and this being a matter of great public importance concerning the right of the people in general and the Musallies from home and abroad who are meeting in the huge congregation of Bishaw Istema twice in every year for the last 40 years to perform their prayer in the Bishaw Istema Math and therefore, invoking the power of complete justice this Division is of the opinion that in the interest of justice a 40 feet wide Approach Road (passage) should be kept open for the people in general and the Musallies of the Bishaw Istema of the Tabligue Jamat in particular. Accordingly, the respondent Nos. 1 to 3 be directed to demolish the wall and other structures which had been constructed on the land of the original 100 feet wide Approach Road (passage) for keeping open a 40 feet wide Approach Road for the use of the people in general and the Musallies of Bishaw Istema of the Tabligue Jamat which has been in use for more than 40 years. The unconditional apology tendered by the respondent Nos.1 and 2 are accepted and they are warned to be cautious in future while dealing with such order of this Court. .....RAJUK =VS= International University of Business, Agriculture and Technology, [4 LM (AD) 303]

Will/ Probate–– The beneficiaries of the Will did not come forward to challenge the order of the probate case. Although the defendants alleged that the probate case was false, they did not adduce any evidence or produce any witness to substantiate their claim. Moreover, the claim of the defendants that they purchased the property is contradicted by the plaint of the suit which they filed earlier wherein they claimed to be tenants in the property. Their subsequent attempt to amend the plaint to establish their claim of proprietary right over the property failed. Hence, the trial Court and appellate Court rightly decreed the suit. We do not find any illegality or impropriety in the impugned judgement and order of the High Court Division. .....Ramesh Chandra Das =VS= Gopal Chandra Majumder, [4 LM (AD) 321] ....View Full Judgment

The Administrative Appellate Tribunal came into a finding that while passing the impugned decision the Administrative Tribunal failed to consider that the departmental proceeding against respondent No.1 was not initiated and disposed of legally and that the Administrative Tribunal arrived at a wrong finding in disallowing the case causing serious miscarriage of justice. The findings arrived at and the decision made by the Administrative Appellate Tribunal having been based on proper appreciation of law and fact do not call for interference. …Janata Bank Vs. Md. Minhaj Uddin Ahmed and another, (Civil), 1 SCOB [2015] AD 26 ....View Full Judgment

The arbitral award is generally not open to review by Courts for any error in finding on facts and applying law for the simple reason that it would defeat the very purpose of the arbitration proceedings. …TATA Power Company Ltd Vs M/S Dynamic Const., (Civil), 2 SCOB [2015] AD 15

Whenever an award is challenged before any Court, the Court, i.e. either District Court or as in this case the High Court Division, does not sit on appeal over the decision of the learned Arbitrator. Therefore, the scope of considering the merits of the case and factual aspects is again very limited. …TATA Power Company Ltd Vs M/S Dynamic Const., (Civil), 2 SCOB [2015] AD 15

The factual and contractual positions are matters for decision of the Arbitrator and as such, unless there appears to be gross illegality, neither the High Court Division nor this Division would enter into the merit of such arguments. …TATA Power Company Ltd Vs M/S Dynamic Const., (Civil), 2 SCOB [2015] AD 15 ....View Full Judgment

Basic Principles of Waqf:
According to Imam Abu Hanifa the meaning of waqf is the detention of a specific thing in the ownership of waqf and the devoting of its profit or products “in charity of poors or other good objects”. Imam Abu Yusuf said, “Waqf signifies the extinction of the waqif’s ownership in the thing dedicated and detention of all the thing in the implied ownership of the Almighty Allah, in such a manner that its profits may revert to or be applied ‘for the benefit of Mankind.’ Three basic principles governed the waqf: the trust was required to be irrevocable, perpetual, and inalienable. Once property was declared waqf by its owner, the trust thereby created was irrevocable. It means (i) inalienable lands used for charitable purposes and (ii) pious endowments. …Md. Hafizuddin Vs. Mozaffor Mridha & ors., (Civil), 10 SCOB [2018] AD 12

The waqf is irrevocable after possession is handed over to the Mutawalli. The waqif divests himself of the ownership of the property and of everything in the nature of contract from the moment the waqf is created. In purely metaphorical sense the expression “ownership of God” is used but unlike Hindu Law, since conception of a personal God is not recognized, there is no ownership of God or no property belongs to God in the Jural sense, although the ownership of the property becomes reverted in God because God is originally owner of all thing. …Md. Hafizuddin Vs. Mozaffor Mridha & ors., (Civil), 10 SCOB [2018] AD 12

Once the property is given to waqf, it remains for the waqf for ever. The property cannot be alienated or transferred nor is it subject to the rights of inheritance. It cannot be sold or given away to anybody except in accordance with law. …Md. Hafizuddin Vs. Mozaffor Mridha & ors., (Civil), 10 SCOB [2018] AD 12 ....View Full Judgment

Cancellation of lease, preservation of ecological balance and protection of natural resources; Cancellation of long term lease granted by the government for the purpose of constructing hotels in the hotel/motel zone of Cox’s Bazar:
Dismissing the review petitions, the Court directed that all leases within Jhilanja Mouza of Cox’s Bazar granted after 19.04.1999 be cancelled in the same way as those of the writ-petitioners and any constructions made thereon be demolished; the leaseholders shall be compansated for their loss due to such cancellation/demolition. It was further directed that henceforth no lease shall be granted within Jhilanja Mouza or any area which has been classified as ecologically critical area. …Mahbubul Anam Vs. Ministry of Land & ors., (Civil), 13 SCOB [2020] AD 8 ....View Full Judgment

Characteristics of work-charged employees:
Work-charged employee is the one who is engaged temporarily and his appointment is made as such, from the very beginning of his employment till the completion of the specified work. Work-charged employees constitute a distinct class and they cannot be equated with any other category or class of employees much less regular employees. Further, the work-charged employees are not entitled to the service benefits which are admissible to regular employees under the relevant rules or policy framed by the employer. …Govt. of Bangladesh and ors Vs. Md. Saiful Islam & ors, (Civil), 16 SCOB [2022] AD 8

The service rendered by work-charged employees for a considerable period, like 20 years or more, may be considered to be permanent employees and they may be qualified for grant of pensionary benefit:
Work-charged employees have not only been deprived of their due emoluments during the period they served on less salary but have also been deprived from the pensionary benefits as if services had not been rendered by them though the Government has been benefitted by the services rendered by them. The concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. The concept of equality as envisaged in the constitution is a positive concept which cannot be enforced in a negative manner. Therefore, the service rendered by work-charged employees for a considerable period, like 20 years or more, may be considered to be permanent employees and they may be qualified for grant of pensionary benefit, inasmuch as, pension is not a charity, rather, it is the deferred portion of compensation for past service. …Govt. of Bangladesh and ors Vs. Md. Saiful Islam & ors, (Civil), 16 SCOB [2022] AD 8

To ensure Socio-economic justice the Government should formulate a policy instrument for giving pensionary and other benefits to the work-charged employees:
After receiving continuous service for 20 years from a work-charged employee without break, if he is left in uncertainty over his future, that is wholly denying socio-economic justice and completely contrary to Fundamental Principles of State Policy as enumerated in part II of our Constitution. The Government should formulate a policy instrument for giving pensionary and other benefits to the work-charged employees who have served without break for a considerable period of time i.e for 20 years or more. All the authorities should take immediate appropriate action in that behalf. …Govt. of Bangladesh and ors Vs. Md. Saiful Islam & ors, (Civil), 16 SCOB [2022] AD 8 ....View Full Judgment

Commutation of death sentence: The petitioner has no significant history of prior criminal activity and that he was aged 14 years at the time of commission of the offence and 16 years at the time of framing of charge. The petitioner has been in the condemned cell since 12.07.2001, that is, more than 14 years. Considering all aspects of the case, we are of the view that the death sentence of the petitioner be commuted to imprisonment for life. …BLAST & anr Vs Bangladesh & ors, (Civil), 7 SCOB [2016] AD 42 ....View Full Judgment

Code of Conduct:–– An ordinary offender and a Judge cannot be equated at par while finding them guilty of the charges–– The question is whether the conclusion arrived at by the Council in forming the opinion by the President to remove Mr. Syed Shahidur Rahman from the office of a Judge on the ground of gross misconduct was in conformity with the provisions of the constitution. The conclusion of the Council is that the materials on record are sufficient to come to the conclusion that the allegations made against Mr. Syed Shahidur Rahman have substance. It merely disbelieved the receipt of Tk.50,000/- in the absence of corroborative evidence but it has totally believed the entire episode. What more else is required to prove about the misconduct of a sitting Judge of the highest Court by a woman? These findings and observations are sufficient to come to the conclusion that the Judge had not only violated the ‘Code of Conduct’ but also judicial ethics and norms which are sufficient to remove him from the office of a Judge. It is to be borne in mind that in adjudicating a disciplinary proceeding against a Judge of the highest court and holding trial of an offender in a criminal case, one cannot claim similar principle to be followed. For proving an offence against an offender, the prosecution must prove the offence against him beyond reasonable doubt but this doctrine cannot be applicable in respect of a Judge while hearing a disciplinary proceeding for removal of a Judge on the ground of gross misconduct. In the alternative, it may be said that an ordinary offender and a Judge cannot be equated at par while finding them guilty of the charges. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231] ....View Full Judgment

Code of Conduct:–– A Judge’s official and personal conduct be free from impropriety–– A Judge’s official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than that expected of a layman and also higher than that expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231] ....View Full Judgment

Code of Conduct:–– No member of his family, who is a member of the Bar, shall be permitted to use the residence the Judge–– No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231] ....View Full Judgment

Complete Justice¬:–– An alienation by a Hindu widow with justifying necessity is valid transfer–– The contents of the kabala deed dated 28.10.1944 executed by Shushila in favour of Jagobandhu and ‘angikarnama’ dated 28.10.1944 executed by Jagobandhu in favour of Shushila it would be apparent that Shushila transferred the suit land to Jagobandhu for her maintenance. Accordingly, S.A. Record of right was prepared in the name of Jogabondhu. An alienation by a Hindu widow with justifying necessity is valid transfer. In the “.....দলিলগ্রহিতাকে জীবিত থাকা পর্যন্ত আমি খোরাক, পোষাক, লালন ও ভরণপোষণ করিব। যদি না করি তবে মাসিক মোসবা মং ১৫ টাকা হিসাবে দিব ।” The plaintiff himself as P.W.1 admitted in his evidence that, “ আমার পিতার সঙ্গে ৯ নং বিবাদীনির এই মর্মে লিখিত দলিলপত্রে ২৮/১০/৪৪ ইং চুক্তি হয় যে, আমার পিতা ৯নং বিবাদীকে খোরপোষ ও মাসো হারা বাবদ প্রতি মাসে ১৫/- টাকা দিবে।” It is true that the recitals in the deed regarding the legal necessity do not by themselves prove the legal necessity but the weight to be attached to such recitals. When the transaction took place many years ago, so that the original parties and the witnesses are not available to prove the circumstances in which alienation was made the alienation would be justified by legal necessity, particularly, when parties to the deed so recited. In view of such circumstances, it appears to us that Shushila transferred .90 acre of land to Jogobondhu on 28.10.1944 for her legal necessity. .....Paresh Chandra Shil =VS= Kali Bala Shil, [4 LM (AD) 295] ....View Full Judgment

Corum non judice:–– If an order is said to be without jurisdiction the appropriate course open to the applicant is to plead to the Tribunal–– If an order is said to be without jurisdiction or is contrary to law, the appropriate course open to the applicant is to plead to the Tribunal with such plea and ask for vacating the order or action. It is altogether within the tenor of the Tribunal. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, [4 LM (AD) 143] ....View Full Judgment

Coram non Judice–– If an order is said to be without jurisdiction or is contrary to law, the appropriate course open to the applicant is to plead to the Tribunal with such plea and ask for vacating the order or action. It is altogether within the tenor of the Tribunal. Coram non Judice is a Latin phrase which means ‘not in the presence of a judge’. It is a legal term typically used to indicate a legal proceeding held without a judge, with improper venue such as before a court which lacks the authority to hear and decide a case in question, or without proper jurisdiction. Appellate Division find no cogent ground why the Tribunal cannot deal with these issues for the reasons assigned above. Mere superficial pleadings on the point of fundamental rights will not confer any power on the High Court Division in respect of the terms and conditions of service. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, [4 LM (AD) 143] ....View Full Judgment

Case laws which are not applicable in our jurisdiction but may have some sort of persuasive efficacy:
We can sum up in this way that the case laws declared by any superior court other than Bangladesh including Pakistan after 25th March, 1971 (that is after independence of Bangladesh) and that of India after 13th August, 1947 (that is after partition of Pakistan) are not applicable in our jurisdiction as binding precedents. They may have some sort of persuasive efficacy in our legal arena and can be used to assist or guide Bangladesh Supreme Court ... Hence, both the Division of the Supreme Court of Bangladesh can discuss and cite foreign case laws in reaching any decision on some points of law applicable in Bangladesh. However, no reliance ipso facto could be placed upon those precedents in any way as was relied upon by the learned Senior Assistant Judge, Sylhet. ...Terab Ali & ors Vs. Syed Ullah & ors, (Civil), 17 SCOB [2023] AD 34 ....View Full Judgment

Consequence of setting aside ex-parte decree: The moment the ex-parte decree was set aside, the suit stood restored in its original position and the only legal consequence of such restoration was that the suit had to be proceeded with and disposed of in accordance with law. …Md. Noor Hossain & ors. Vs. Mahbuba Sarwar & ors., (Civil), 4 SCOB [2015] AD 4 ....View Full Judgment

Custody of Minor: Considering the facts and circumstances- especially the facts that minor S.A.M.M. Zohaibuddin has already attained the age of almost 7 years and he is now residing along with his ailing elder brother in his father’s house and is being taken good care of by his father, grandfather and grandmother, we are inclined to allow the prayer of the leavepetitioner to retain the custody of his minor son S.A.M.M. Zohaibuddin till disposal of Family Suit. …S.A.M.M. Mahbubuddin Vs. Laila Fatema, (Civil), 8 SCOB [2016] AD 134 ....View Full Judgment

Dissolution of partnership: A deed of dissolution of partnership is not required to be registered under section 17 of the Registration Act because the share of a partner in a partnership is essentially moveable property notwithstanding that a part of the partnership property may be immovable. …Bangladesh Rubber Industries & anr. Vs. Dine Ara Begum & ors., (Civil), 10 SCOB [2018] AD 1 ....View Full Judgment

Dismissed from service, termination simpliciter; The orders of termination were not termination simpliciter. Consequently, this is the outcome of arbitrary exercise of power in a malafide way and as such, the High Court Division was justified in making the Rule absolute declaring the orders of termination to have been passed without lawful authority and to be of no legal effect. There was an inquiry about the appointment of the writ-petitioner and pursuant to the said inquiry, the writ-petitioner were terminated from service. Therefore, it cannot be said that the writ-petitioner were terminated from service and in fact, they were dismissed from service in the garb of termination. …Ashuganj Fertilizer & Chemical Com. Ltd. & ors. Vs. Md. Abu Sufian Bhuiyan & anr., (Civil), 12 SCOB [2019] AD 1 ....View Full Judgment

Death certificate issued by Thana Statistical Officer–– The High Court Division, reversed this judgment and decree of the appellate court below basing mainly on the alleged death certificate, the exhibit-2. The High Court Division committed serious wrong and illegality in accepting this death certificate, the exhibit-2 and in decreeing the suit mainly relying on this exhibit-2. We don’t understand how the High Court Division could rely on this exhibit-2, the so-called death certificate issued by Thana Statistical Officer who had no authority to issue such death certificate and who could not tell even before court on what basis he issued this death certificate-the exhibit-2. The impugned judgment of the High Court Division cannot be sustained. .....Mohosin(Md) =VS= Mst. Angura Khatun, [5 LM (AD) 100] ....View Full Judgment

Decree:–– The executing court cannot go beyond the decree–– The executing court cannot go beyond the decree. The decree was passed against the writ-respondent Nos.2 to 5 also and, therefore, the executing court had no jurisdiction to strike out their names from the execution case. .....Sheikh Sekander Ali & others =VS= Agrani Bank Limited & others, [1 LM (AD) 135] ....View Full Judgment

Discretion–– Discretion, means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reasons. It is to be not arbitrary vague, and fanciful, but legal and regular. And it must be exercised within limit, to which an honest man competent to the discharge of his office ought to confine himself. .....Dr. Khairun Nahar & others =VS= Prof. M. Iqbal Arslan & others, [1 LM (AD) 63] ....View Full Judgment

Doctrine of legitimate expectation implement of contract–– The doctrine of legitimate expectation may be played into service in many cases particularly in contractual sphere while canvassing the implications underlying the administrative law. Such expectation can be claimed if the decision of the authority deprives a person the benefit or advantage which he had enjoyed and which he can legitimately expect to continue until he is intimated some rational grounds for withdrawing it and that he has been given an opportunity or that he has received an assurance that it will not withdraw the benefit without giving an opportunity of advancing reasons. Legitimate expectation gives the claimant sufficient locusstandi for judicial review and it operates in the domain of public law and in appropriate cases give rise to substantive as well as procedural rights. There is no neglect and laches on the part of the writ petitioner to implement the agreement. It has also spent huge amount of money after taking over possession towards the improvement of the Mills. Therefore, the writ petitioner’s expectation of getting a registered instrument upon payment of the balance consideration cannot be taken away by the authority unilaterally. The High Court Division, in the premises, acted no illegality in making the rule absolute. .....Government of Bangladesh =VS= Refat Garments Limited, [5 LM (AD) 173] ....View Full Judgment

Donation–– We direct the M.H. Samarita Medical College, 117 Tejgaon, Love Road, Dhaka to pay Tk.75,00,000/- to the Children Heart Foundation & Research, Dhaka having office at center point concord, space: 5/B, 14/A & 31/A Tejkunipara Tejgaon, Dhaka and Tk.25,00,000/- to the National Liver Foundation of Bangladesh totaling Tk.1,00,00,000/- within 7(seven) days from the date of receipt of the order and submit the receipts of donation before the Registrar General, Supreme Court of Bangladesh, Dhaka. Pursuant to deposit of donation for charitable purposes, the Dhaka University shall accord registration and issue registration cards to the writ petitioners in Writ Petition Nos.13572 of 2016 and 13272 of 2016 in the first year BDS and MBBS examinations respectively. In case to failure to make the donation, M.H. Samarita Medical College and Dental unit shall be debarred from admitting students for the academic sessions 2017-2018. The rules issued by the High Court Division are discharged. These petitions are accordingly disposed of. .....Registrar, University of Dhaka =VS= Tanjina Akter, [3 LM (AD) 438] ....View Full Judgment

Enforceability of provisions of international instruments in Bangladesh:
With regard to enforceability of provisions of international instruments, we may refer to the decisions in Hossain Muhammad Ershad V. Bangladesh and others, reported in 21 BLD(AD) 69, where it was held that “the court should not ignore the international obligations which the country undertakes by signing the instruments.” …Eriko Nakano Vs. Bangladesh and others, (Civil), 16 SCOB [2022] AD 107

The court must look for the best interests of the minors: The court must look for the best interests of the minors and the petitioner in the present case being the mother of these two minor daughters left each and every effort for their best interest. It was decided in the case Abu Bakar Siddique vs SMA Bakar reported in 38 DLR(AD)106 that “welfare of the child would be best served if his custody is given to a person who is entitled to such custody.” …Eriko Nakano Vs. Bangladesh and others, (Civil), 16 SCOB [2022] AD 107

It is the Family Court who has the jurisdiction to settle the question of custody of a minor:
Considering the aforesaid facts and circumstances we are of the view that removal of the detainees from the custody of their mother petitioner is without lawful authority and they are being held in the custody of respondent No.5 in an unlawful manner and the High Court Division passed the judgment beyond the scope of law which required to be interfered. In this case only Family Court has the jurisdiction to settle the question of custody of a minor. The Family Court will look into the cases referred by the parties and come to a finding in whose custody the welfare of the detainees will be better protected. …Eriko Nakano Vs. Bangladesh and others, (Civil), 16 SCOB [2022] AD 107 ....View Full Judgment

Findings:–– High Court Division was not empowered or authorized to set aside those findings without any specific finding–– The High Court Division was not empowered or authorized to set aside those findings without any specific finding that the Court of appeal either misread or failed to consider in interfering any material evidence and thus erred in law with the judgment and decree of the Appellate Court. We ourselves have gone through the evidence any material we have not found any misreading or non-consideration of evidence by the Court of appeal. The judgment and order passed by the High Court Division in Civil Revision No. 2148 of 1999 is hereby set aside and those of the Appellate Court dismissing the suit is restored. .....Abdus Sobhan =VS= Md. Afzal Mia, [4 LM (AD) 12] ....View Full Judgment

Fraud document create–– The judgment and order of the appellate Court that it was observed that the contesting defendants claimed that the plaintiffs had created the document Exhibit-4 by fraud, but did not particularise the elements of fraud. The appellate Court deduced from the evidence of D.W. 1 that Moijan must have died around the year 1963 and, therefore, had the right to transfer her share of .42 acre, which she did in the kabala dated 10.6.1958. The appellate Court held therefore, that the share of Moijan did not pass on to defendant No. 1 after her demine (demise) as she had already transferred her share to the plaintiffs by the kabala (Exhibit-4), and, therefore, defendant No. 1 did not have the right to transfer the said .42 acre of land to defendant Nos. 5-9 by virtue of register heba deeds dated 13.11.1968 and 19.06.1983. .....Shamar Uddin Mollah & others =VS= Ahammad Ali Mollah & others, [1 LM (AD) 326] ....View Full Judgment

Fraud practiced upon Court–– The Appellate Division held that since the judgments were obtained by practicing fraud upon the court, Appellate Division has no alternative but to set aside the said judgments of the Company Court and the persons concerned should be put to justice. Appellate Division direct the Registrar to file complaints before the Chief Metropolitan Magistrate, Dhaka against the respondent(s) for using forged documents for securing judgments from the Company Court. .....Bangladesh Bank =VS= Eagleway Investment Ltd & others, [1 LM (AD) 337] ....View Full Judgment

Fraud vitiates all judicial proceeding–– There is no existence of Title Suit No.587 of 1970, so the judgment and decree passed in Title Suit No.587 of 1970 dated 15.03.1971 is also non-existent in the eye of law. The question of binding effect of the judgment and decree of Title Suit No.587 of 1970 dated 15.03.1971 upon the appellants is completely fictitious. The appellants are not under any legal obligations to release the property from the list of vested property in favour of the respondents.
The High Court Division made a serious error of law making the Rule absolute based on fictitious judgment and decree passed in Title Suit No.587 of 1970 dated 15.03.1971, which has no existence at all. So, we are constraint to interfere with the judgment and order passed by the High Court Division in Writ Petition No.6053 of 2008 on 17.12.2009. Accordingly, the judgment and order passed in Writ Petition No.6053 of 2008 on 17.12.2009 is set aside. The appeal is allowed. ...Ministry of Land, Bangladesh =VS= Sadeque Ahmed Nipu, [10 LM (AD) 692] ....View Full Judgment

Fraud:–– Transaction between the parties were fraudulent–– As soon as the letters of credit are established between the issuing bank and negotiating bank, it becomes an independent agreement between the two banks, neither the seller nor the buyer has privity to that agreement. It is by nature a separate transaction from the sale agreement between the seller and the buyer. Any allegation of fraud has to be proved strictly by adducing evidence. View that the claim of fraud is somewhat belated and also that the petitioner has not been able to establish its claim of fraud having been practiced. Admitted that defendant Nos.2 and 3 are not the same person. The petitioner had claimed that defendant Nos.2 and 3 were one and the same person and, therefore, the transactions between them were fraudulent paper transactions. Moreover, evidently the petitioner accepted the genuineness of the instruments and encashed some of them. In view of the above discussion, we do not find any illegality or impropriety in the impugned order. .....Oriental Bank Ltd. =VS= Export Import Bank of Bangladesh Ltd., [4 LM (AD) 291] ....View Full Judgment

Fraud/ Auction:–– Low price selling the property on auction vitiated by fraud–– The property was sold at Tk.7,30,00,000/- on 01.12.2014 despite the assessment of the valuation at Tk.40,7,90,862/- on 25.03.2014. This shows that the petitioner’s tannery was sold at a shockingly low price. Selling of property at a shockingly low price which is evident on the face of the record is a material irregularity in conducting the sale and if the court is satisfied that the price was shockingly inadequate, it may interfere with the sale. The sale of the property hurriedly ignoring the valuation assessed by an engineer and the conduct of the receiver proved beyond doubt that the sale was vitiated by fraud. There was deliberate collusion between the receiver, the auction purchaser and the officials of the court in conducting the sale at a shockingly low price. Therefore, we are not persuaded to maintain the sale. We direct the petitioner Jamila Tannery Limited to deposit Tk.7,30,00,000/- plus TK.75,00,000/- as compensation for payment to the auction purchaser and Tk.25,00,000/- to the bank as cost of the litigation plus receiver’s remuneration by 26.10.1917 with the Bankruptcy Court, failing which, the auction sale shall stand. The pay order/bank draft deposited by the petitioner be released forthwith subject to payment of money as mentioned above. This petition is disposed of with the above observations and directions. .....Jamila Tannery Limited =VS= Bangladesh, [4 LM (AD) 264] ....View Full Judgment

Full relief to the judgment-debtor without issuing any rule–– The High Court Division has given the full relief to the judgment-debtor without issuing any rule and also without affording the decree-holder and the auction purchaser an opportunity to controvert their claims. It has been repeatedly held by this Division that granting. In the latter case this Division reaffirmed the views taken by the Supreme Court of Pakistan and observed that "without issuing any rule while disposing of the application under Article 102 of the Constitution the High Court Division was not authorized in law to pass any ad-interim relief which it could only be passed in aid of or ancillary to the main relief that may be granted upon final determination of the rights of parties in order to maintain status quo ante in the pending suit proceeding before it.” ...Farid Uddin Mahmud =VS= Md. Saidur Rahman, [9 LM (AD) 247] ....View Full Judgment

Fraud practiced upon Court: Since the judgments were obtained by practicing fraud upon the court, we have no alternative but to set aside the said judgments of the Company Court and the persons concerned should be put to justice. We direct the Registrar to file complaints before the Chief Metropolitan Magistrate, Dhaka against the respondent(s)... for using forged documents for securing judgments from the Company Court. …Bangladesh Bank Vs. Eagleway Invest. Ltd. & ors, (Civil), 2 SCOB [2015] AD 1 ....View Full Judgment

General Average Bond and General Average Guarantee–– We are of the view that before delivery of the cargo, the interest of the vessel is required to be protected by way of some security. We are of the view that ends of justice would be sufficiently met if the plaintiff, respondent No. 1 herein, is directed to furnish appropriate General Average Bond and General Average Guarantee in the sum of US$ 180,000.00 as assessed by Albatross Adjusters Limited (annexed in the additional paper book dated 26.02.2018). On furnishing the aforesaid General Average Bond and General Average Guarantee in favour of the ship owners, the petitioner herein, shall discharge the cargo as directed by the Admiralty Court. .....Bene Maritime Inc =VS= Aman Feed Limited, [4 LM (AD) 93] ....View Full Judgment

Gift/ Heba:–– Declaration suit gift–– Careful scrutiny of all the materials on record, we do not find any earthly reason why the plaintiff would gift a six-storey building, which appears to be their family home, to one of her children while depriving all her other children. In the light of the facts and circumstances discussed above, we find that the impugned judgement suffers from misreading as well as non-consideration of relevant evidence and materials, which in our view calls for interference. For the reasons stated above the appeal is allowed, without, any order as to costs. The impugned judgement and order of the High Court Division is set aside and the judgement and decree of the trial Court is restored. ...Mosammat Kamran Nessa =VS= Haji Hafez Md. Sharif Uddin, [6 LM (AD) 17] ....View Full Judgment

The High Court Division has also directed to lift the curtain for enabling the writ petitioners to be considered for promotion. This cannot be done or declared by the court for, it is the police administration which shall consider as to whether or not under the prevailing laws the writ petitioners are eligible to be considered for promotion to the next higher post. …Bangladesh Vs. Md. Abdus Satter and others, (Civil), 1 SCOB [2015] AD 17

A legislature lacking legislative power or subject to a constitutional prohibition may frame its legislation so as to make it appear to be within its legislative power or to be free from constitutional prohibition. Such a law is colourable legislation, meaning thereby that while pretending to be a law in the exercise of undoubted power, it is in fact a law on a prohibited field. …Bangladesh Vs. Md. Abdus Satter and others, (Civil), 1 SCOB [2015] AD 17 ....View Full Judgment

How interest is to be calculated: The interest to be paid by the judgment debtor will have to be calculated according to the prevailing interest rate or rates, which may be different for different periods, from the time of filing of the suit till the payment of the decretal amount by the judgment debtor. …M/S. Rajib Traders Vs The Artha Rin Adalat & anr, (Civil), 5 SCOB [2015] AD 98 ....View Full Judgment

Inherent power:–– Despite the absence of any provision empowering the Tribunal to pass any interim order–– Despite the absence of any provision empowering the Tribunal to pass any interim order, the Tribunal is not powerless since it has all the powers of a civil court and in proper cases, it may invoke its inherent power and pass interim order with a view to preventing abuse of the process of court or the mischief being caused to the applicant affecting his right to promotion or other benefit. But the Tribunal shall not pass any such interim order without affording the opposite party affected by the order an opportunity of being heard. However, in cases of emergency, which requires an interim order in order to prevent the abuse of the process and in the event of not passing such order preventing such loss, which cannot be compensated by money, the Tribunal can pass interim order as an exceptional measure for a limited period not exceeding fifteen days from the date of the order unless the said requirements have been complied with before the expiry of the period, and the Tribunal shall pass any further order upon hearing the parties. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, [4 LM (AD) 143] ....View Full Judgment

It is not permissible to take disciplinary action against a person solely on the basis of adverse remarks made by a Tribunal in a criminal case unless the allegations imputed in the adverse remarks are proved in disciplinary proceeding. …Bangladesh Vs. S.M. Raiz Uddin Ahmed, (Civil), 5 SCOB [2015] AD 94 ....View Full Judgment

Judgment:–– A Judge should dispose of promptly In no case a judgment shall be signed not later than six months–– A Judge should dispose of promptly the business of the court including avoiding inordinate delay in delivering judgments/orders. In no case a judgment shall be signed not later than six months of the date of delivery of judgment in exceptional cases. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231] ....View Full Judgment

Lease deed–– The Management/ Executive Committee of the Orphanage had no authority to deal with the land other than for the purpose stipulated in the indentures–– We are of the view that the lease deeds, Annexure-‘A’ series are short term leases incorporating specific terms and conditions, breach of which would result in the land reverting to the Government. The Management/Executive Committee of the Orphanage had no authority to deal with the land other than for the purpose stipulated in the indentures. Those persons at the helm of the affairs of the Orphanage could not arrogate to themselves the authority to transfer the title in the property, which they themselves did not have. The Orphanage was given the property on a short term lease, which was apparent from the lease deeds. As long as these lease deeds existed and as long as the terms were not altered by the executant of the deeds none had the authority to deal with the land other than the purpose for which the lease was granted. The agreements entered into between respondent Nos.15 and 17 and respondent No.16 as well as the power of attorney are, therefore, illegal and void ab initio and of no legal effect. 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 No.133 of 2017 is dismissed. Consequently, the Civil Petition for Leave to Appeal Nos.530 of 2017 and 633 of 2017 are also accordingly dismissed. ...Mir Showkat Ali =VS= Morsalin Khan(Md.), [6 LM (AD) 245] ....View Full Judgment

Lease cancelled on the allegation of failure to make any construction in the disputed plot–– We have already held that the People’s Jute Mills Ltd. has accepted the judgment and order of the Writ Petition No.137 of 1996, it has been decided that disputed property is abandoned property. It is also admitted that the original allottee People’s Jute Mills Ltd. did not make any construction in the disputed land before its dispossession inasmuch as lease was cancelled after 24 years of allotment.
The People’s Jute Mills Ltd. has not yet prayed any relief against subsequent lease deeds executed in favour of added respondents and also it did not make any prayer for recovery of possession of the disputed land though admittedly it was dispossessed in 1992. The appeal is dismissed. …Khalishpur Jute Mills Ltd. =VS= Rajdhani Unnayan Kartipakkha, [7 LM (AD) 123] ....View Full Judgment

Lease:–– Permission for chopping down 2096 standing trees in Jhemai Tea Estate–– The agreement of lease between the Government and the writ petitioner provides for extension of tea garden on the lease hold land may be permitted to cut down the trees subject to certain terms and conditions–– The agreement of lease between the Government and the writ petitioner provides a clause for extension/ expansion of tea garden on the lease hold land. Moreover, tea is one of our exportable item earning foreign currency as well as fulfilling the local demand of tea, which is increasing day by day. Moreover, tea gardens with shed trees are also greeneries and such gardens are also causing emission of oxygen in the atmosphere and absorbing CO2 . Tea gardens also take active part in the photosynthesis process. Therefore, for the purpose of sustainable development as well as to protect the environment, Writ Respondent No.7 may be permitted to cut down the trees for which permission has been given to it by the concerned authorities subject to certain terms and
conditions as mentioned hereinafter: (1) Immature trees cannot be cut down. (2) Before cutting down each trees, two saplings are to be planted in suitable places of Jhemai Punjee area. (3) After nourishing newly planted saplings for at least three years, the leave respondent No.7 would be entitled to chop down old and matured trees only from Jhemai Punjee under the supervision of the Local Officials of the Department of Environment and the Department of Forest. …Rana Surong =VS= Government of Bangladesh, [7 LM (AD) 139] ....View Full Judgment

Mere participation in the written and viva voce examination, ifso facto, does not create any vested right in favour of the writ petitioners-respondents to be appointed:
The writ petitioners-respondents did not have acquired any legal right to be appointed in HPSP project and now they cannot claim to be appointed in new project i.e. Alternative Medical Care (AMC) Operational Plan (OP) as of right without participating in recruitment process. The writ petitioners-respondents participated in the examination for appointment under HPSP project in the year 2003 and having regard to the fact that the said appointment process was postponed and cancelled and on the plea of their participation in the earlier written and viva examination, no legal and vested right has been created in favour of the writ petitioners-respondents to be appointed to the posts as allegedly vacant in the new project. Mere participation in the written and viva voce examination, ifso facto, does not create any vested right in favour of the writ petitioners-respondents to be appointed automatically in the newly created posts in subsequent project. …DG, Health Directorate & ors Vs. Dr. Md. Tajul Islam & ors, (Civil), 16 SCOB [2022] AD 100

Any appointment by passing the relevant Rules of the concerned authority should be treated as back door appointment and such appointment should be stopped. …DG, Health Directorate & ors Vs. Dr. Md. Tajul Islam & ors, (Civil), 16 SCOB [2022] AD 100

We have no hesitation to hold that the writ petitioners-respondents have no legal and vested right to be appointed as of right in the posts as has been sought by them on the plea that they had earlier participated in the written examination and viva voice for the similar posts. The claim of the writ petitioner-respondents appears to be very fanciful having no legal basis. …DG, Health Directorate & ors Vs. Dr. Md. Tajul Islam & ors, (Civil), 16 SCOB [2022] AD 100

Judgment contrary to the law settled by the Appellate Division has no binding effect:
Having perused the said judgments we have no hesitation to hold that the observations/directions made in the said writ petitions are not based on sound principle of law and the law settled by this Division. Since, the judgments passed by the High Court Division in the above two writ petitions are not in accordance with law, thus those have no binding effect and persuasive value on any authority; rather said judgments are void ab initio. May be, by virtue of the above two judgments some persons have got appointment by the concerned authority but it is our considered view that this act is to be treated as passed and closed transaction. …DG, Health Directorate & ors Vs. Dr. Md. Tajul Islam & ors, (Civil), 16 SCOB [2022] AD 100

It has to be borne in mind that the function or duty of a Court is not to do charity; rather it has to act in accordance with law to ensure justice. If an aspirant candidate or a participant of a particular selection process is provided job later on without participation in later selection process as decided by the concerned authority then this will create havoc in regular selection process and eligible and meritorious candidates will be deprived from getting job. …DG, Health Directorate & ors Vs. Dr. Md. Tajul Islam & ors, (Civil), 16 SCOB [2022] AD 100 ....View Full Judgment

Mala fides:–– What is mala fides?–– “Mala fides or bad faith” means dishonest intention or corrupt motive in the exercise of powers or a deliberately malicious or fraudulent purpose, on the part of the decision maker. Mala fides includes those cases where the motive force behind an action is personal animosity, spite, vengeance, personal gratification or benefit to the concerned authority or its friends or relatives. (Halsbury’s Laws of India, Vol-1, P.319 and CS Rowjee V. A.P., AIR 1964 SC 962).
An independent ground of attack, malafides (Malice in fact) should be distinguished from mala fides (malice in law). According to Megaw LJ, it always involves a grave charge and it must not be treated as a synonym for an honest mistake. (District Council V. Kelly, (1978) 1 All ER 152). There is malice in law where “it is an act done wrongfully and willfully without reasonable or probable cause and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others’. (A.P. V. Goverdhanlal Pitti, (2003) 4 SCC 739). Colourable exercise of power is equated with malice in law (Wadhwa V. Bihar, AIR 1979 SC 659) and in such a case, it is not necessary to establish that the respondent was actuated by a bad motive. (Venkataraman V. India, AIR 1979 SC 49). (Surendra Kumar Sinha, CJ). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, [6 LM (AD) 272] ....View Full Judgment

M.P.O./ MPO/ Monthly Pay Order: M.P.O.–– The granting of M.P.O. is the policy decision of the Government. Therefore, the petitioners could not claim the same as of right unless infringement of legal right or violation of law–– The granting of M.P.O. is the policy decision of the Government. Therefore, the petitioners could not claim the same as of right. This Division is of the view that teachers and staffs of the Non-Government School and College could not claim the M.P.O. as a matter of right and as such, direction could not be given unless infringement of legal right or violation of law.
We are of the considered view that the instant writ petition is not maintainable. We find merit in the petition, however, we are not inclined to grant leave, rather, dispose of the instant Civil Petition for Leave to Appeal as the writ petition was not maintainable. …Government of Bangladesh =VS= Md. Nazrul Islam, [7 LM (AD) 208] ....View Full Judgment

M.P.O–– Striking out the name of the writ-petitioner from the list of Monthly Payment Order (M.P.O.)–– Before delisting the name of respondent No.1 from the list of M.P.O., no notice for showing cause was served upon her and as such, the principle of natural justice has been violated. Therefore, the High Court Division rightly declared the action illegal. This civil appeal is dismissed without any order as to costs. ...Ministry of Education, BD =VS= Mrs. Kanij Salma, Lecturer, [10 LM (AD) 199] ....View Full Judgment

M.P.O–– Monthly Pay Order (MPO) (government portion of the salary–– The High Court Division directed the leave-petitioners to settle the index number of the writ-petitioner’s Monthly Pay Order (MPO)and to pay the writ-petitioner’s earlier MPO with effect from 14.10.2004 within 3 (three) months from the date of receipt of a copy of the judgment and order of the High Court Division. The findings arrived at and the decision made by the High Court Division having been based on proper appreciation of law and fact do not call for interference. Accordingly, this civil petition is dismissed. .....Ministry of Education =VS= Md. Zahurul Haque, [3 LM (AD) 272] ....View Full Judgment

Nationalization of school it is the policy decision of the Government–– The Constitution does not permit the High Court Division to direct or advise the executive in the matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the executive provided the authorities do not transgress their constitutional limit or statutory power. The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizen or is opposed to the provisions of the Constitution.
It can not interfere the correctness of the reason which prompted the Government to nationalize Raypur Merchants Academy instead of Raypur L.M. Pilot Model High School. It is not a matter of concern of judicial review and the Court is not the appropriate forum for such investigation. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after consideration of all the points from different angles. In assessing the propriety of a decision of the Government the High Court Division cannot interfere even if a second view is possible from that of the Government. The Court has to consider whether a decision making authority exceeded its powers, committed an error of law, violated rules of natural justice, reached a decision which no reasonable man would have reached or otherwise abused its power.
We do not find any error in the impugned administrative decision for which it can be said that the executive authority exceeded its’ power or committed an error of law or violated the principles of natural justice and, thus, the judgment of the High Court Division does not call for any interference. ...Raypur L.M. Pilot Model High School =VS= Ministry of Education, [6 LM (AD) 269] ....View Full Judgment

Natural Justice¬:–– When a petition/memo is filed in the wrong jurisdiction or forum–– It is common practice to allow a party to file a petition/memo in the proper form when it is observed that the said memo/petition was filed in the incorrect form. In other words where instead of filing an appeal a revision was filed, direction would be given to either convert the revision into an appeal or to file the appeal afresh. In such circumstances, usually the time consumed in proceeding under the wrong jurisdiction or forum is directed to be deducted. Equally when a memo/appeal is filed instead of petition for revision the Court may direct that the appeal be treated as revision. …Kutub Uddin =VS= Syed Moinuddin Ahmed, [7 LM (AD) 31] ....View Full Judgment

Natural Justice¬:–– When judicial review is permissible–– It is only in exceptional cases when the principles of audi alteram partem have not been followed or the affected Judge has not been afforded sufficient opportunity to examine witnesses or cross-examine the witnesses, judicial review against his removal is permissible but otherwise not. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231] ....View Full Judgment

New Rule effective and applicable–– The new rules adding new terms and conditions including the one as to the promotion to the next higher posts shall be effective and applicable to the employees, who will be appointed after the coming into effect or force of the same. .....Bangladesh Bank & another =VS= Sukamal Sinha Choudhury & another, [1 LM (AD) 56] ....View Full Judgment

New defence plea at appellate stage: Before this Appellate Division the defendant-appellant did not raise any question as to the correctness of the above concurrent findings of the courts of facts, rather it has raised a new plea to the effect that the plaintiffs could not prove that the defendant bank sold the said 152 travellers’ cheques. But we are unable to accept this new defence plea at this stage specially in view of the pleadings of the contesting parties and the evidence adduced by them. …Uttara Bank Ltd Vs Credit and Commerce Ins. (Saudi) Ltd & ors, (Civil), 2 SCOB [2015] AD 8 ....View Full Judgment

Observation–– Judicial domain requires dispassionate approach and the importance of issues involved for consideration is no justification to throw to winds basic judicial norms. Observation should not be made by the Court against any person unless it is essential for decision of the case. ...Hosneara Begum, Adv. =VS= A.K.M. Bahauddin alias Bahar, [9 LM (AD) 669] ....View Full Judgment

Observation is expunged–– Review–– While quashing the criminal proceeding this court observed that the period of occurrence in respect of the incident is hit by section 234 of the Code of Criminal Procedure. This observation is made through overlooking sub-section (1B) of section 6 of the Criminal Law Amendment Act, 1958. The above observation is expunged. These petitions are disposed of with the above expunction and observations. .....Manzur Ahmed =VS= Government of Bangladesh, [5 LM (AD) 205] ....View Full Judgment

Observation of the Court–– A Court has right to make observation(s) in dealing with a matter, but it cannot make any observation(s) about the behavior or action of the writ respondent(s) in future, particularly, about the possible disobedience or violation of the order/direction/ observation of the Court, the reason being that when a Court passes an order or gives a direction or makes an observation it is presumed that such order/direction/ observation shall be obeyed and complied with in its true purport and spirit. And if the Court itself nourishes an element of doubt in its mind as to the obedience or the compliance with its order/ direction/observation, then there cannot have any meaning in passing such order/ giving such direction/making such observation. And such kind of doubt by a court shall make the people's confidence in the administration of justice shaky. We would like to add further that a Court must always pass an order/give direction/and make observation in a positive way to ensure fair justice and not in a manner as quoted hereinbefore. .....Land Reform Board =VS= Md Hamdu Miah, [5 LM (AD) 117] ....View Full Judgment

Overrule the Appellate Division–– An overruled point of law cannot be ignored by this court and when a proposition of law has been settled, which is binding on all courts and though it is not binding on this court, it can overrule the said decision. A decision of a court overlooking a decision, or if it is contrary to law, constitutes an error apparent on the face of the record justifying its review. It is immaterial whether such error occurred by reason of lawyer’s mistake or oversight on the part of the court. The appeal is allowed without any order as to cost and the leave petitions are disposed of. The judgment in the appeal shall govern the leave petitions. .....Bangladesh Biman Airlines Ltd. =VS= Captain Mir Mazharul Huq, [4 LM (AD) 66] ....View Full Judgment

Owners cannot dispossess the tenants before approval of plan by the RAJUK for constructing the multi-storey building on the plots–– The owners cannot dispossess the tenants before approval of plan by the RAJUK for constructing the multi-storey building on the plots and till such date the shop keepers shall remain in possession of the shops. The construction must be completed within three years from the date of taking possession and in case of failure to handover possession within the above time, the landlords shall pay compensation to the tenants. .....Banichitra Pratisthan Ltd. =VS= Bilkis Begum, [3 LM (AD) 46] ....View Full Judgment

Persona Designata: In legal parlance the expression “persona designa” means a person who has been described in a statute or a legal instrument by his official designation, and his function may be judicial or may not be so. But if the function of the designated person is judicial in character then he is nothing but a “court” even though he is not described as a court but by official designation. The test is the power and function he has to discharge. …Alhaj Dr. Chowdhury Mosaddequl Isdani Vs. Abdullah Al Munsur Chowdhury & ors., (Civil), 10 SCOB [2018] AD 19
On this score since the revisional application lies against the final order of the District Judge under a special law, the respondents herein correctly invoked revisional jurisdiction of the High Court Division against the order of the District Judge passed in appeal preferred against an order of eviction by the Deputy Commissioner pursuant to the prayer of the Waqf Administrator. Hence on the question as to whether revision is maintainable we hold the same in the affirmative. …Alhaj Dr. Chowdhury Mosaddequl Isdani Vs. Abdullah Al Munsur Chowdhury & ors., (Civil), 10 SCOB [2018] AD 19 ....View Full Judgment

Pre-emption, Extinguishment of Co-sharership; The 62 DLR case has not overruled the contention that ‘only by a partition suit or partition deed the co sharership is extinguished’. So in this case by separating the Jama the pre-emptor and/or his predecessor having already lost her/his character of cosharership in the case jote so the pre-emptor is no more a co-sharer and as such his right to pre-empt as a co-sharer does not exist anymore …Abul Kasem Md. Kaiser Vs. Md. Ramjan Ali & ors., (Civil), 14 SCOB [2020] AD 106

Not only separation of Jama/Khatian by a party will cause him to cease to be a cosharer in the jama but co-sharership will also be ceased by a final decree in a partition suit or by a registered deed of partition. That means either of the two will cause a person to cease his co-sharership in the case jote. …Abul Kasem Md. Kaiser Vs. Md. Ramjan Ali & ors., (Civil), 14 SCOB [2020] AD 106

The appellant cannot take the plea of non-service of notice upon the other party once he has taken benefit of such mutation or separation of “Jama”. Such plea,if any, can be taken only by the party affected by it or to whose disadvantage the same has been obtained and upon whom the notice was required to be served. But not the person at whose prayer separation has been made and who takes the benefit of such separation. …Abul Kasem Md. Kaiser Vs. Md. Ramjan Ali & ors., (Civil), 14 SCOB [2020] AD 106 ....View Full Judgment

Pleading of the plaintiff is not evidence–– As no witness was examined, no statement was made before the Court in relation to matters of fact under inquiry, that means, the facts stated in the plaint were not stated before the court on the date fixed for hearing of the suit and, in fact, it was only the pleading of the plaintiff and not the evidence which was before the Court. Therefore, in the absence of any evidence, the trial Court could not decree the suit. .....Government of Bangladesh =VS= Md. Mizanur Rahman, [4 LM (AD) 138] ....View Full Judgment

Possession:–– No break in respect of the possession of the petitioner–– There was no break in respect of the possession of the petitioner in the case land, made the Rule absolute declaring that the impugned order of eviction was issued without lawful authority and is of no legal effect. Moreso, since the Government having granted lease to the petitioner at a subsequent stage, and the lease never having been cancelled by the Government, the petitioner acquired valid and lawful right in respect of the land in question and this right, interest and possession of the lease hold property cannot be disturbed at the instance of a stranger. .....Nurul Amin(Md.) =VS= Dullah Miah, [3 LM (AD) 428] ....View Full Judgment

Purchase deed:–– Appellate Division view that the reasons stated by the High Court Division for allowing the production of the purchase deed dated 01.03.1971 of the added plaintiff is justified. .....Harunur Rashid & others =VS= Mosammat Yarun Nissa & others, [1 LM (AD) 385] ....View Full Judgment

Preamble of a statute: The preamble cannot control the meaning and expression when the meaning of the expression is clear and ambiguous. The aid of the preamble can be taken if the meanings of the words to be interpreted are not clear and ambiguous. …S. N. Kabir.vs. Fatema Begum & ors, (Civil), 3 SCOB [2015] AD 16 ....View Full Judgment

The power of Tribunal to pass interim order: Despite the absence of any provision empowering the Tribunal to pass any interim order, the Tribunal is not powerless since it has all the powers of a civil court and in proper cases, it may invoke its inherent power and pass interim order with a view to preventing abuse of the process of court or the mischief being caused to the applicant affecting his right to promotion or other benefit. But the Tribunal shall not pass any such interim order without affording the opposite party affected by the order an opportunity of being heard. However, in cases of emergency, which requires an interim order in order to prevent the abuse of the process and in the event of not passing such order preventing such loss, which cannot be compensated by money, the Tribunal can pass interim order as an exceptional measure for a limited period not exceeding fifteen days from the date of the order unless the said requirements have been complied with before the expiry of the period, and the Tribunal shall pass any further order upon hearing the parties. …Bangladesh & ors Vs Sontosh Kumar Shaha & ors, (Civil), 6 SCOB [2016] AD 1 ....View Full Judgment

Pre-emption: On scrutiny of the deposition of this preemptor-petitioner we find that the preemptorpetitioner while deposing before court, though denied this alleged fact that he obtained the certified copy of the case kabala in the year 1982 for the opposite party No.2, but he did not deny the fact that he was the engaged lawyer of the opposite party No.2. The opposite party No.2 filed Other Suit No.70 of 1982 challenging the genuineness of the impugned kabala. In the circumstances it is not believable at all that the preemptorpetitioner could not know about the case kabala before his alleged date of knowledge. From the facts and circumstances stated above it is rather proved beyond any doubt that the preemptor-petitioner knew about the case transfer in the year 1982. In the circumstances the trial court rightly dismissed the case for preemption. …Shantipada Shil Vs Sunil Kumar Sarker and others, (Civil), 7 SCOB [2016] AD 37 ....View Full Judgment

Pleading of the plaintiff is not evidence: As no witness was examined, no statement was made before the Court in relation to matters of fact under inquiry, that means, the facts stated in the plaint were not stated before the court on the date fixed for hearing of the suit and, in fact, it was only the pleading of the plaintiff and not the evidence which was before the Court. Therefore, in the absence of any evidence, the trial Court could not decree the suit. …Bangladesh Vs. Md. Mizanur Rahman, (Civil), 9 SCOB [2017] AD 37 ....View Full Judgment

Recovery of possession:–– Possession of the suit land so the plaintiff having not made any prayer for recovery of possession of the suit land–– All the three courts below committed wrong and illegality in dismissing the suit of the plaintiff holding to the effect that the plaintiff’s suit is not maintainable without prayer for setting aside the judgment and decree passed in title Suit No.107 of 1968 and without prayer for recovery of khas possession. The plaintiff acquired valid right, title and interest in the suit land by virtue of purchase by a registered kabala of the year 1963, the exhibit-7 and he has also proved his possession in the suit land. In the circumstances the plaintiff is entitled to get the decree as prayed for. .....Masud Alam =VS= Abdul Khaleque Miah, [3 LM (AD) 261] ....View Full Judgment

Recovery of possession:–– Recovery of khas possession of the suit land–– We find from the cross-examination that he was not present at the time of the settlement with the family members. His wife was present. She was not called to give evidence. In his cross-examination DW2 (defendant No.2) admitted that the plaintiff got land in all the plots at the time of amicable settlement which took place after his father's death in 1995. Hence the judgement of the appellate Court was palpably wrong and the High Court Division correctly reversed the same upon giving cogent reasons. Since there was admittedly amicable settlement within the family there is no question of filing a further suit for partition. In the light of the facts and circumstances discussed, we do not find any illegality or infirmity in the impugned judgement, which in our view does not call for any interference. The appeal is dismissed. ...Harmuj Sarker =VS= Mohammad Anis, [6 LM (AD) 114] ....View Full Judgment

Recovery of possession:–– Suit was not maintainable without the prayer for recovery of possession–– It would not be proper to remand the case after 30 years of it’s institution allowing the plaintiff to prove the deed produced by the defendants forged. We have already held that the plaintiffs have admitted the possession of the defendants in the suit land and that the instant suit was not maintainable without the prayer for recovery of possession, we are of the view that the prayer for remand of Mr. Samader does not deserve any consideration. We do not find any merits in the appeal. .....Parmalundra Joydhar =VS= Bhagirath Talukder, [5 LM (AD) 95] ....View Full Judgment

Review–– We have given our anxious consideration to the facts and circumstances of the case and we are of the view that the ends of justice would be best served if the appeal filed by the Government before the High Court Division is heard on merit. The order dated 12.06.2016 is set aside after reviewing the same. The judgment and order dated 21.04.2013 passed by the High Court Division is set aside and the delay of 643 days in preferring the appeal before the High Court Division is condoned. The High Court Division is directed to register F. A. T. No.571 of 2012 as First Appeal and to dispose of the same in accordance with law. ...Government of Bangladesh =VS= Samsuddin Monir Khan, [6 LM (AD) 141] ....View Full Judgment

Review–– The decisions and steps taken for protection of the villages from the erosion of the river Meghna are totally executive decisions of the Government. The policy decision of the Government may be interfered with only when the same is illegal or unconstitutional–– The decisions and steps taken for protection of the villages from the erosion of the river Meghna are totally executive decisions of the Government. The policy decision of the Government may be interfered with only when the same is illegal or unconstitutional or shockingly arbitrary in the wednesbury sense. It is the duty of the policy maker to decide how a village would be protected from erosion of a river and what would be the acceptable proposal for embankment works and what would be the proper way of implementation of proposal of embankment considering the financial capacity of the Government.
The instant case, in fact, the High Court Division, ignoring constitutional limitation directed the executive to sanction money instead of wheat for protection of the above mentioned villages from erosion of the river Megna. Our considered view is that the impugned judgment and order passed by the High Court Division was unlawful. The review petition is disposed of. …Ministry of Finance, Bangladesh =VS= Salim Khan (Md.), [7 LM (AD) 236] ....View Full Judgment

Revisional jurisdiction:–– High Court Division exercising revisional jurisdiction is very limited–– Where the trial Court and the appellate Court come to a decision which is not conflicting, and the finding is concurrent, the function of the High Court Division exercising revisional jurisdiction is very limited. It can only look to see whether there was any misreading or non-consideration of evidence on record or any misconstruction of law. We find that there was nothing on record to suggest as to whether any step was taken after the expiry of the 11 years’ term to extend the tenancy or to acquire title to the property in any other way. We are, therefore, of the view that the trial Court and the appellate Court rightly dismissed the suit for declaration of title. We do not find any illegality or impropriety in the impugned judgement, which in our opinion does not call for any interference. .....Jahangir (Md.) =VS= Noor Mohammad, [5 LM (AD) 142] ....View Full Judgment

Right of appeal:–– Third party right to file an appeal–– Even a third party can file an appeal in case he is affected by a decree passed in a suit. .....Rasheda Begum & others =VS= Abul Hashem & others, [1 LM (AD) 168] ....View Full Judgment

Remission of interest to the sick industry: The question is whether the expressions ‘প্রাপ্য সুদ’ and ‘দন্ড সুদ’ used in this sub-clause (ই) above include remission of all interest accrued from the day of taking loan and already paid by the sick industry by installments against the total outstanding amount to be excluded or the interest accrued on the day of recommendation made by the Special Committee out of the total amount of outstanding dues. The expression ‘প্রাপ্য’ means obtainable or to be paid, that is, the interest which has accrued from the date of privilege of remission of interest given and not the past interest already paid. …Bangladesh Shilpa Rin Sangstha & anr Vs. Rony Twines Ltd & ors, (Civil), 4 SCOB [2015] AD 1 ....View Full Judgment

Suit for declaration, Adoption; The adoptive father of the child to be adopted must belong to the same caste and that adoption would be valid if they belong to different sub-division of the same caste. …Palash Chandra Saha Vs. Shimul Rani Saha & ors., (Civil), 14 SCOB [2020] AD 88 ....View Full Judgment

Suit Afresh–– There is some formal defect in framing the suit the plaintiffs are permitted to withdraw from the suit with permissions to sue afresh–– The defect in the frame of the suit as pointed out in the application appears to us formal in framing the suit and because of such defect, the suit shall fail. Therefore, we find merit in the application and we are inclined to allow the same. The application is allowed. The plaintiffs are permitted to withdraw from the suit with permissions to sue afresh. The judgments and decrees of the Courts below as well as the impugned judgment and order are set aside. …Zahanara Begum =VS= Motiar Rahman(Md), [7 LM (AD) 107] ....View Full Judgment

Solatium to the defendant–– We are inclined to give a solatium to the defendants, the heirs of Anu Mia. Considering all aspects we fix the solatium at Tk.1,60,000/- (one lac sixty thousand) to be paid by the plaintiffs to the defendants, the heirs of Anu Mia. .....A. K. M. Abdul Ali =VS= Rafiqul Islam, [3 LM (AD) 37] ....View Full Judgment

Statutory deposit:–– Statutory deposit along with an additional 8% as interest was not made. The High Court Division rejected the contention and discharged the Rule. It appears to us that the point raised by the pre-emptees also requires determination of facts. Since the hearing of the case has already commenced, the point raised by the pre-emptees can very well be agitated before the trial Court along with the other issues. And if such a point is agitated, whatever observations and findings have been given in the impugned judgment and order by the High Court Division on the said point shall not be binding upon the trial Court in deciding the same afresh. The trial Court shall dispose of the same along with the other issues in accordance with law. .....Alhaj Md. Maruf Hasan Swapan & another =VS= Kohinur Aziz & others, [1 LM (AD) 274] ....View Full Judgment

Summons:–– Service of Summons–– The High Court Division was not also factually correct in finding that summons of the suit was not served upon defendant No.3, as report of the process server clearly showed that summons of the suit was served upon defendant No.3 by hanging and he gave report to that effect. Merely because the fact of service of summons upon defendant No.3 was not recorded in the order sheet, it may be through inadvertence which did not make the report of the process server as regards service of summons upon defendant No.3 ineffective or nonest. .....Rasheda Begum & others =VS= Abul Hashem & others, [1 LM (AD) 243] ....View Full Judgment

Suo Motu Rule–– To pay Tk. 50,00,000/- (fifty lac) jointly to the bereaved family of victim–– Over the said incident a case has already been instituted and the police of Paltan Police Station has taken investigation. Since an investigation is pending over the said incident, the High Court Division acted illegally in directing to lodge the F.I.R against specified officials of the Dhaka City Corporation south, Dhaka. If the investigating agency finds prima facie case then it may submit police report against the persons who have shown negligence in keeping open the manhole. The observations and direction so far it relates to lodging the F.I.R and taking legal action by the High Court Division are hereby expunged. We direct the City Corporation South, Dhaka and Dhaka WASA to pay Tk. 50,00,000/- (fifty lac) jointly to the bereaved family of victim Sano Mia equally within 6(six) weeks from the date of receipt of the order. .....Rustom Ali(Md.) =VS= The State, [5 LM (AD) 158] ....View Full Judgment

Specific performance of contract: As regards, the argument of the learned Attorney General that the plaintiff had no cause of action to file the suit, we are of the view that since the original lessee entered into an agreement with the plaintiff to sell the suit property and in part performance of the contract, he was put into the possession of the suit property and admittedly he is in possession thereof and he paid good amount of money being taka 15,90,000.00 in 1978 and after the death of Syed Salamat Ali, his heirs did not execute and register the sale deed, he had every right to file the suit to pray for specific performance of contract. …Bangladesh & ors Vs. Hamid Ali Chowdhury & ors, (Civil), 8 SCOB [2016] AD 126 ....View Full Judgment

The Appellate Court being last Court of fact–– The Appellate Court being last Court of fact considered the evidence on record, both oral and documentary and found that the heba deeds in question were not executed by the donor. We find nothing wrong with the Appellate Court as well as the High Court Division in relying upon exhibit-‘2’ in coming as to the genuineness of the heba deeds. When the plaintiff categorically challenged that Md. Motaleb Miah was a literate person and there was no reason on his part to execute and register the heba deeds in question by putting the L.T.I., the onus was squarely upon the defendants to prove their genuineness by examining at least the witness who took his L.T.I in the deed. .....Ash Mohammad =VS= Most Imamun Nessa, [5 LM (AD) 54] ....View Full Judgment

Third party right to file an appeal: Even a third party can file an appeal in case he is affected by a decree passed in a suit. …Rasheda Begum & ors vs. Abul Hashem & ors, (Civil), 3 SCOB [2015] AD 5

Service of Summons: The High Court Division was not also factually correct in finding that summons of the suit was not served upon defendant No.3, as report of the process server clearly showed that summons of the suit was served upon defendant No.3 by hanging and he gave report to that effect. Merely because the fact of service of summons upon defendant No.3 was not recorded in the order sheet, it may be through inadvertence which did not make the report of the process server as regards service of summons upon defendant No.3 ineffective or nonest. …Rasheda Begum & ors vs. Abul Hashem & ors, (Civil), 3 SCOB [2015] AD 5 ....View Full Judgment

Unconditional apology–– We are not inclined to uphold the order of cancellation of the allotment of land made in favour of the University or dislodge the university from Plot No.4 to an alternative site. However, considering the gravity of the situation and this being a matter of great public importance concerning the right of the people in general and the Musallies from home and abroad who are meeting in the huge congregation of Bishaw Istema twice in every year for the last 40 years to perform their prayer in the Bishaw Istema Math and therefore, invoking the power of complete justice this Division is of the opinion that in the interest of justice a 40 feet wide Approach Road (passage) should be kept open for the people in general and the Musallies of the Bishaw Istema of the Tabligue Jamat in particular. Accordingly, the respondent Nos. 1 to 3 be directed to demolish the wall and other structures which had been constructed on the land of the original 100 feet wide Approach Road (passage) for keeping open a 40 feet wide Approach Road for the use of the people in general and the Musallies of Bishaw Istema of the Tabligue Jamat which has been in use for more than 40 years. The unconditional apology tendered by the respondent Nos.1 and 2 are accepted and they are warned to be cautious in future while dealing with such order of this Court. .....RAJUK =VS= International University of Business, Agriculture and Technology, [4 LM (AD) 303] ....View Full Judgment

Voluntary retirement of service; After 10 years of their voluntary retirement and after receiving full financial benefits as offered the prayers for reinstatement cannot be termed as reasonable and fair. After having applied for voluntary retirement of service and taken the money it is not open to contend that they exercised the option under any kind of coercion and undue influence. Who had accepted the ex gratia payment or any other benefit under the scheme, could not have resiled therefrom. It became past and closed transaction. The writ petitioners having accepted the benefit could not be permitted to approbate and reprobate nor they be permitted to resile from their earlier stand. …BADC Dhaka & ors. Vs. Md. Shohidul Islam & ors., (Civil), 12 SCOB [2019] AD 23 ....View Full Judgment

Voluntary retirement scheme is a method used to reduce surplus staffs. Participation in the voluntary retirement plan is voluntary. It has to result in an overall reduction in the existing strength of employees. Accordingly, we are not inclined to accept the observation of the High Court Division that the respondents had been terminated in the grab of voluntary retirement. Moreover, the respondents have filed writ petitioners after about 8 years of the acceptance of their prayers and after receiving retirement benefits. …BADC Vs Md. Abdur Rashid & ors, (Civil), 2 SCOB [2015] AD 24
The instant process was a policy decision involving complex economic factors. The court would be slow from interfering with the economic decisions as it has been recognized that the economic expediencies lack adjudicative decision and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits. It is the administrators and legislators who are entitled to frame policies and take such administrative decisions as they think necessary in the public interest. The court should not ordinarily interfere with policy decisions, unless clearly illegal. We do not find any violation of constitutional provision or legal limits in the instant scheme. …BADC Vs Md. Abdur Rashid & ors, (Civil), 2 SCOB [2015] AD 24 ....View Full Judgment

What is void ab initio, that cannot be validated later in any way:
However, the Administrative Appellate Tribunal miserably failed to notice that in the instant case there found no application of the said “special circumstances of the case” by the Government. Rather the then Director General applied the said “special circumstances of the case’ concerning the unauthorized leave of absence of the respondent for 07 years and 07 months and 24 days from his work. As the Director General was not empowered to act under rule 34, his alleged application of the said “special circumstances of the case’ was not only without lawful authority but also void ab intio. What is void ab initio, that cannot be validated later in any way. …Bangladesh and another Vs. Sayed Mahabubul Karim, (Civil), 16 SCOB [2022] AD 46

No estoppel against law:
Doctrine of estoppels, waiver and acquiescence is not applicable against statutory provisions. …Bangladesh and another Vs. Sayed Mahabubul Karim, (Civil), 16 SCOB [2022] AD 46 ....View Full Judgment

Will/ Probate–– The beneficiaries of the Will did not come forward to challenge the order of the probate case. Although the defendants alleged that the probate case was false, they did not adduce any evidence or produce any witness to substantiate their claim. Moreover, the claim of the defendants that they purchased the property is contradicted by the plaint of the suit which they filed earlier wherein they claimed to be tenants in the property. Their subsequent attempt to amend the plaint to establish their claim of proprietary right over the property failed. Hence, the trial Court and appellate Court rightly decreed the suit. We do not find any illegality or impropriety in the impugned judgement and order of the High Court Division. .....Ramesh Chandra Das =VS= Gopal Chandra Majumder, [4 LM (AD) 321] ....View Full Judgment

We hold that the plaintiff was entitled to get exclusion of the time of the absence of defendant Nos.1 and 2, the heirs of Syed Salamat Ali from Bangladesh and the High Court Division rightly gave the said benefit and held that the suit was not barred by limitation. We further hold that time was not the essence of the contract and with the execution and registration of the general power attorney in favour of the plaintiff by Salamat Ali, the earlier contract dated 06.03.1978 was novated and the High Court Division rightly held so. …Bangladesh & ors Vs. Hamid Ali Chowdhury & ors, (Civil), 8 SCOB [2016] AD 126
We find substance in the submission of Mr. Mahmudul Islam that cancellation of lease in favour of lessee, Syed Salamat Ali after filing the suit was absolutely malafide as in the suit, the Government and its other functionaries concerning the suit property were very much parties and in the suit, the plaintiff prayed for declaration of title to the suit property along with the other reliefs. The suit being pending by no logic, the Government could cancel the lease. We also cannot ignore the submission of Mr. Mahmudul Islam that the cancellation order was an antedated one inasmuch as the defendant Government though filed written statement in the suit on 12.05.2004, did not say the said fact in the written statement. …Bangladesh & ors Vs. Hamid Ali Chowdhury & ors, (Civil), 8 SCOB [2016] AD 126 ....View Full Judgment

Without issuing any show cause notice the petitioners could not lawfully cancel the letter of appointment of the respondents: It is patent from the records that all the respondents went through the rigorous process of selection and were appointed in their respective post. They were served with notices cancelling their appointment without issuing any show cause notice. The respondents joined their posts and served accordingly for more than nine months at the time of filing their writ petition. We are of the view that without issuing any show cause notice the petitioners could not lawfully cancel the letter of appointment of the respondents. …NTRCA & anr Vs. Lutfor Rahman & ors, (Civil), 9 SCOB [2017] AD 62 ....View Full Judgment

Paragraph 24 of 71 DLR (AD) 319 is a per incuriam decision: We are of the view that the part of the judgment reported in 71 DLR (AD) 319 particularly in paragraph 24 regarding maintainability of the writ petition was passed without considering the latest provision of law and, as such, the part of the said judgment regarding maintainability of the writ petition filed by a retired public servant is a per incuriam decision. ...Secretary, Posts & Telecom Div. & anr Vs. Shudangshu Shekhar & ors, (Civil), 18 SCOB [2023] AD 11 ....View Full Judgment

Any Court equivalent to the Court which pronounced the judgment per incuriam is free to depart from a decision of that Court where that earlier judgment was decided per incuriam:
Per incuriam, literally translated as “through lack of care” is a device within the common law system of judicial precedent. A finding of per incuriam means that a previous Court judgment has failed to pay attention to relevant statutory provision or precedents. The significance of a judgment having been decided per incuriam is that it need not be followed by any equivalent Court. Ordinarily, the rationes of a judgment is binding upon all sub-ordinate Courts in similar cases. However, any Court equivalent to the Court which pronounced the judgment per incuriam is free to depart from a decision of that Court where that earlier judgment was decided per incuriam. ...Secretary, Posts & Telecom Div. & anr Vs. Shudangshu Shekhar & ors, (Civil), 18 SCOB [2023] AD 11 ....View Full Judgment