Act/Law wise: Judgment of Supreme Court of Bangladesh (AD)
Code of Civil Procedure (Bangladesh) ORDERS (See CPC Sections in another title) | |||
---|---|---|---|
Section/Order/ Article/Rule/ Regulation | Head Note | Parties Name | Reference/Citation |
Order I rules 3 and 4 |
All person may be joined as defendants claiming relief against all, there
being a common question of fact and law involved.
|
Bangladesh Railway vs Messrs Chartering and Shipbooking Corporation | 37 DLR (AD) 47 |
Order I rule 8 and Order XXXIX rule 1 |
Representative suit under Order 1, rule 8 CPCPrayer for ad-interim
injunction restraining the defendants from proceeding with the construction
refused by the trial Court and the same was affirmed by the lower appellate
Court-High Court Division summarily rejected the revisional application
filed under section 115 CPCDirective principles of State (Articles 8-25
of the Constitution of Bangladesh) considered.
|
Ziaul Huq vs Messrs Business Resources Ltd. | 42 DLR (AD) 80 |
Order I rule 10 |
Addition of party in a suit for specific performance of contract-The
appellants' averments in the application for addition of party setting up
an independent title to the land disentitle them to be included as parties
within the framework of the present suit wherein the real question to be
determined is whether the contract for sale between the parties therein was
genuine and whether on the basis thereof the plaintiffs are entitled to get
a decree. The averments for addition of party will convert the present suit
into one for determination of title which is not permissible in law.
|
Golam Kader and others vs Abdul Khaleque Choukder and others | 43 DLR (AD) 107 |
Orders I rule 10 & Orders XXII rule 4 |
Even if the facts stated by the petitioners in assertion of their right to
be added as parties are taken to be correct then also they cannot be added
as parties because they have no independent right to call in question the
legality and propriety of the decree passed.
|
Abdur Rashid (Md) and others vs Bainchitala Junior High School | 54 DLR (AD) 80 |
Order I rule 10(2) |
Interest of lessor and lessee may not always be same so as to say the
presence of the lessor wIll protect the Interest of the lessee.
|
Waliullah Munshi vs Lodu Patwary | 38 DLR (AD) 308 |
Order I Rule 10 |
The Code of Civil Procedure
|
One Bank Ltd. =VS= Chaya Developer (Pvt.) Ltd. | 14 LM (AD) 482 |
Order I rule 10(2) |
Though there is no clear provision mentioning the word ‘transposition’ but order I rule 10(2) of the Code of Civil Procedure enables the courts to make such transposition, Order I rule 10(2) has empowered the courts to strike out name of any party, either plaintiff or defendant, improperly joined and also to add any persons-either as plaintiff or defendant-who ought to have been joined whether as plaintiff or defendant or whose presence before the court may be necessary for effectual and complete adjudication of the matter. Exercising this very power the courts can make transposition also of either of the parties of a suit or other proceeding to the other category of the parties and the courts also are doing so, and it has become a long practice now. Of course, generally, the courts will not allow transposition of defendants as plaintiffs after striking the names of the original plaintiffs or after transposing them as defendants. But in appropriate facts and circumstances-as these are in the present case-the courts should not be reluctant to make such transposition of the parties for the ends of justice or to prevent abuse of the process of the court. …Mrs. Ruksana Huq & ors Vs A. K. Fayazul Huq & ors, (Civil), 6 SCOB [2016] AD 61 ....View Full Judgment |
Mrs. Ruksana Huq & ors Vs A. K. Fayazul Huq & ors | 6 SCOB [2016] AD 61 |
Order I, Rule 10(2) |
Though there is no clear provision mentioning the word ‘transposition’ but order I rule 10(2) of the Code of Civil Procedure enables the courts to make such transposition, Order I rule 10(2) has empowered the courts to strike out name of any party, either plaintiff or defendant, improperly joined and also to add any persons-either as plaintiff or defendant-who ought to have been joined whether as plaintiff or defendant or whose presence before the court may be necessary for effectual and complete adjudication of the matter. Exercising this very power the courts can make transposition also of either of the parties of a suit or other proceeding to the other category of the parties and the courts also are doing so, and it has become a long practice now. Of course, generally, the courts will not allow transposition of defendants as plaintiffs after striking the names of the original plaintiffs or after transposing them as defendants. But in appropriate facts and circumstances-as these are in the present case-the courts should not be reluctant to make such transposition of the parties for the ends of justice or to prevent abuse of the process of the court. .....Mrs. Ruksana Huq & others =VS= A. K. Fayazul Huq & others, (Civil), 2016-[1 LM (AD) 452] ....View Full Judgment |
Mrs. Ruksana Huq & others =VS= A. K. Fayazul Huq & others | 1 LM (AD) 452 |
Order 1 Rule 10 |
Abandoned Buildings (Supplementary Provisions) Ordinance, 1985
|
Raihana Shafi =VS= First Court of Settlement, Dhaka | 16 LM (AD) 517 |
Order I, Rule 10 |
Addition of party as a defendant–
|
Abdul Quddus =VS= Joygunnessa | 6 LM (AD) 267 |
Order I Rule 3 |
Proper Party and Necessary Party
|
Rajdhani Unnayan Kartipakha (RAJUK) -Vs.- Jonab Ali being dead his heirs | 2 ALR (AD) 57 |
Order II and rule 1(g) of Order VII |
No relief can be given to a party to a suit beyond the frame of the suit
and pleading.
|
Abdul Matin. -Vs.- Golam Rahman Kashem and others | 11 ALR (AD) 125 |
Order II Rule 2(3) and order VII Rule 11 |
The question that came up for consideration before the Appellate Division
is as to whether a subsequent suit for a particular relief is available to
the plaintiff when he failed to incorporate the said relief in an earlier
suit between the same parties in respect of the same transaction. When the
earlier suit came up before the Appellate Division it was found that the
present claim of taka 7 lacs was made in a concealed manner in paragraph 21
of the plaint of that suit. The learned counsel appearing for the
defendant-petitioner submitted at that time that the plaintiff-respondent
could not get taka 7 lacs in that suit without suing for account and his
submission was accepted. The defendant-petitioner cannot now turn round and
take up an opposite stand to plead that the present suit for that
particular relief is not available to the plaintiff in view of the
provision of Order II Rule 2 C.P.C. In the facts of the case, it cannot be
said that the present suit comes within the mischief of Order VII Rule 11
C.P.C. for rejection of the plaint.
|
Sonali Bank Vs. Gazi Abdur Rashid | 15 BLD (AD) 93 |
Order III rules 1 & 2 |
This Order and the rules have no application in the matter of signature on
the plaint because it is not an act in or to a Court. A plaint can be
signed outside the Court.
|
Anath Bandhu Guha & Sons Ltd vs Babu Sudhangshu Shekhar Halder | 42 DLR (AD) 244 |
Order III rule 4(1) & Order VII rule 11 |
Power-of-Attorney-Defect and disabilityWhen the power of attorney fails
the embargo that follows will fall upon the lawyer and not on prosecution
of suit by the principal. The disability attaches to the lawyer and not to
the plaint. Court is to fix a date for steps to be taken by plaintiff when
he may appear himself or by another recognised agent or by the same
attorney after curing the defect. SSC Judge wrongly held that due to defect
in power of attorney there was no cause of action for the suit, for it is
the principal who has cause of action for the suit. Plaint can be rejected
only when on the averments the plaintiffs is found not to have cause of
action. Without rejecting the plaint the court has a clear duty to fix a
date for the plaintiff to take steps.
|
Anath Bandhu Guha & Sons Ltd vs Babu Sudhangshu Shekar Halder | 42 DLR (AD) 244 |
Order III, Rule 4(2) |
The vokalatnama remains valid unless cancelled with the leave of the Court by the client or Advocate or until the client or the Advocate dies or until all proceedings in the suit are ended so far as regards the client. As soon as the all proceedings under Order IX Rule 13 came to an end, all proceedings in relation to the pre-emption case shall be deemed to have come to an end and the vokalatnama executed by the pre-emptor shall be deemed to have been terminated or lost its efficacy according to sub-rule (2) of Rule 4 of Order III of the Code of Civil Procedure. …Ibrahim Khalique @ Ibrahim Salik =VS= Ayesha Bibi, (Civil), 2020 (1) [8 LM (AD) 156] ....View Full Judgment |
Ibrahim Khalique @ Ibrahim Salik =VS= Ayesha Bibi | 8 LM (AD) 156 |
Order IV rule – 1 |
A review is never meant nor can be allowed to be utilized as another
opportunity for rehearing a matter which has already been closed by a final
judgment.
|
Md. Abdul Mannan Akand Vs. Md. Lutfar Rahman & Ors. | 14 BLT (AD) 211 |
Order V rule I |
Petitioner entered appearance in the suit by filing a vokalatnama and
filed written objection in the injunction matter but subsequently he did
not file any written statement in the suit and consequently the ex parte
decree was passed. The petitioner's plea that summons was not served upon
him is not tenable at all.
|
Jalaluddin (Md) and others vs Laity Begum and others | 48 DLR (AD) 163 |
Order V rules 16 and 18 |
Service of summons-When the lower appellate Court finds that the name of
the clerk who received the summons is not distinct and the names and
addresses of witnesses in whose presence the summons was served have not
been noted in the original summons, that provides a strong ground for the
court below to hold that the summons was not served. The procedure provided
for serving summons is not to be whittled down by importing the concept of
"substantial compliance" as done by the High Court Division.
|
Bangladesh vs Chand Mia & others | 44 DLR (AD) 98 |
Order V rule 17 |
Service of summons, proof of-Summons served by process-server without
noting the names and addresses of Mokabila witnesses in the service return
Process-server appearing in Court as a witness-his evidence without
examining the Mokabila witness not acceptable-It is obligatory upon the
process-server to mention in his report the name and address of the person,
if any, by whom the house in question was identified and in whose presence
the copy of summons was affixed When service reports were devoid of these
essential information, they were unacceptable. Mere personal appearance
of the process-server as a witness in Court did not make the report
acceptable.
|
Upendra Chandra Rishi vs Sujia Begum | 42 DLR (AD) 285 |
Order V rule 17 |
Petitioner entered appearance in the suit by filing a vokalatnama and filed
written objection in the injunction matter. Subsequently he did not file
any written statement and ex parte decree was passed. In that view of the
matter the petitioner's plea that summons was not served upon them is not
tenable at all.
|
Jalaluddin and others vs Laily Begum and others | 50 DLR (AD) 105 |
Order V RuIe-14 |
The summons of the original pre-emption case was served on the husband of
the preempteerespondent—The High Court Division rightly held that—in
the instant case there is no evidence that the husband of the
pre-empteerespondent was the recognised agent of hers. Therefore the
summons was not duly served upon the pre-emptee-respondent.
|
Abdur Rahman. Vs. Shamsun Nahar Begum & Ors. | 7 BLT (AD) 125 |
Order-V, rule 15 and Order IX, rule 13 |
Service of summons– The learned trial Court observed that service of
summons upon Aruna Rani Sen appears to be a good service as per provision
of Order-V, rule 15 of the Code of Civil Procedure since summons has been
received by her husband. PW3 admits that on the summons and other processes
were being duly received by Aruna Rani Sen. Over and above, postal service
has been duly served upon Aruna Rani Sen as has been endorsed by the postal
peon acknowledgement receipt. Neither the process server nor postal peon as
it appears from the record was examined on behalf of the present respondent
with a view to show the veracity of aforementioned evidence.
|
Monira Khatun @ Monira Mondal =VS= Ashok Sen | 11 LM (AD) 582 |
Order VI, Rule 7 |
Evidence beyond pleadings cannot be considered by the Court– Rule 7 of
Order VI of the Code of Civil Procedure for expunging the statement of the
OPW1 and excluding exhibit ‘kha’ from the list of exhibits alleging
that those were admitted in evidence though those were beyond the
pleadings.
|
Agrani Bank Ltd., Dhaka =VS= Md. Abdus Sobhan | 10 LM (AD) 316 |
Order VI rule 7 |
The departure in the evidence from the plaint has not been of such a
dimension that the defendants were unfairly taken by surprise. Both the
parties had all opportunities to lay before the court all their evidence
respecting title and possession of the suit land. In such circumstances the
operation of Order VI rule 7 of the Code will not come in.
|
Kochi Mia @ Khocha Mia vs Suruj Mia being dead his heirs Md Fazlur Rahman and others | 51 DLR (AD) 57 |
Order VI rule 14 & Order XIX rule 1 |
Companies are not exclusively governed by the provisions of Order XIX rule
1 in the matter of signature on plaint. They are also governed by the
provisions of Order VI rule 14. A company has alternative choice. It can
follow Order XIX rule 1 or Order VI rule 14. It cannot orally authorise a
person to sign a plaint-it is governed by its Articles of Association in
such matters. It is not condition of verification of plaint that it should
be done by the holder of a power of attorney.
|
Anath Bandhu Guha & Sons Ltd vs Babu Sudhangshu Shekhar Halder | 42 DLR (AD) 244 |
Order VI rule 17 |
Amendment of plaint - When it means no substitution of one cause of
action for another- The impugned transfer of shares of the plaintiff having
taken place during the period of insanity of the plaintiff, it is necessary
to dispose of the same within the framework of the suit for declaration.
Insanity being the foundation of the suit plaintiff can legitimately
combine in one suit all the alleged illegalities committed by the appellant
in the matter of transfer of the shares in question and other properties.
This is not substitution of one cause of action for another, but a
consolidation of all wrongs allegedly done to the plaintiff.
|
Afruz Miah vs Al-haj Md Siraj Miah | 43 DLR (AD) 89 |
Order VI rule 17 |
Instead of furthering the cause of justice by allowing the
plaintiff-appellant a full opportunity to place his case against all the
parties involved by stating all the facts that he wants to allege against
them and by seeking all possible remedies against them, the High Court
Division has given a queer look at the plaintiff and has found him lacking
in bonafides in whatever he does. After all, he is seeking full justice
from a Court oflaw and he wanted to bring all the parties involved in the
original and subsequent transactions. Why should anyone find a malafide
motive in trying to do just that, is beyond our comprehension.
|
Khaledur Reza Chowdhury (Md) vs Saleha Begum and others | 48 DLR (AD) 209 |
Order VI rule 17 |
Amendment only in the prayer portion of the plaint following direction for
taking fresh evidence in order to prove 'Salishnama', the basis of
plaintiff's claim calls for no interference.
|
Abdul Khaleque Gazi and others vs Abdul Aziz Mollah and others | 53 DLR (AD) 82 |
Order VI Rule 5 |
Code of Civil Procedure, 1908
|
A.K.M. Mahbubul Haque -Vs.- Chowd-hury Motinul Haider | 9 ALR (AD) 213 |
Order VI, rule 17 |
Code of Civil Procedure, 1908
|
Kabir Ahmed =VS= Mahohar Ali | 14 LM (AD) 57 |
Order VI Rule 17 |
Praying for declaration of title to the property described in ‘A’ scheduled of the plaint and also for delivery of khas possession of the property described in schedule ‘B’ of the plaint upon eviction of the defendants and/or persons claiming through them and also for permanent injunction restraining the defendants from making any construction and/or changing the nature and character of the land. Praying for amendment of the plaint stating, inter alia, that due to over sight at the time of filing of the suit the learned lawyer of the plaintiff made some mistakes and as such the plaint should be amended. .....S.K. Khalilur Rahman =VS= Mrs. Meherun Nesa, (Civil), 2018 (1) [4 LM (AD) 340] ....View Full Judgment |
S.K. Khalilur Rahman =VS= Mrs. Meherun Nesa | 4 LM (AD) 340 |
Order VI, rule 17 |
Amendment of the plaint– Mere omission/deletion and insertion of some new facts as indicated hereinbefore, in no way, can be construed to change the nature and character of the plaint or the suit. …Salahuddin Khan =VS= Md. Abdul Hai Bahar, (Civil), 2020 (1) [8 LM (AD) 133] ....View Full Judgment |
Salahuddin Khan =VS= Md. Abdul Hai Bahar | 8 LM (AD) 133 |
Order VI, rule 17 read with sec. 114 & 115 |
Plaint can be allowed when the proposed amendment will not change the
nature of the suit– It has been established in a number of cases by the
Apex Court of the sub-continent that when there is specific provision in
the Code for a matter to be decided a Court should not exercise the
inherent power to dispose of the matter.
|
Harun-or-Rashid =VS= Gulaynoor Bibi | 8 LM (AD) 114 |
Order VI, Rule 4 |
A general allegation of collusion implying some kind of fraud is not enough without particulars. Specific pleadings in support of fraud or collusion as per Order 6 Rule 4 are required to be made and those allegations of fraud and collusion must be substantially proved by the party making them. …Alimuzzaman (Reza)(Md.) =VS= Masudar Rahman(Md.) @ Babul, (Civil), 2020 (1) [8 LM (AD) 164] ....View Full Judgment |
Alimuzzaman (Reza)(Md.) =VS= Masudar Rahman(Md.) @ Babul | 8 LM (AD) 164 |
Order VI Rule 17 |
Amendment of the plaint– It is now well-settled that the amendment of the pleadings could be allowed at any stage of the proceedings for the purpose of determining the real question of controversy between the parties, but it could not be allowed, if, it changed the nature and character of the suit, or if the prayer for amendment had became barred by lapse of time and a right had accrued to the other side. That the High Court Division wrongly came to a finding that the proposed amendment would change nature and character of the suit although addition of new fact cannot in any way change the nature and character Therefore, the judgment and order passed by the High Court Division affirming the judgment and order passed by the learned District Judge cannot sustain. Admittedly the suit filed in 2000 is yet to be disposed of by the trial Court. Such being the state of affairs we do not find any point dragging the case before this Division in an interlocutory matter. And the order of trial Court allowing amendment is restored. The trial Court is directed to dispose of the suit as expeditiously as possible. ...Akram Ali Pk.(Md.) =VS= Yasin Ali(Md.), (Civil), 2020 [9 LM (AD) 373] ....View Full Judgment |
Akram Ali Pk.(Md.) =VS= Yasin Ali(Md) | 9 LM (AD) 373 |
Order 6 Rule 7 r/w |
Bengal Tenancy Act
|
Md. Abdul Hanif @ Abu Hanif =VS= Bhupen Nath | 16 LM (AD) 617 |
Order VI, Rule 17 |
The Specific Relief Act
|
Monowara Begum(Most.) =VS= Malanch Bibi | 8 LM (AD) 102 |
Order 6, Rule 17 |
Amendment of pleadings– Appellate Division is satisfied that the proposed amendment is necessary for the purpose of determining the real questions in controversy between the parties and though it is made at a belated stage, the High Court Division has committed no error of law in allowing the amendment. However, it ought to have afforded the defendants to file additional written statement. More so, the High Court Division ought to have awarded cost at the time of allowing the prayer. The plaintiffs have made three amendments at the trial stage and from their conduct, it is apparent that there is neglect or laches in pursuing the suit properly, and therefore, the amendment should be allowed subject to payment of costs. While this Division maintains the order of the [21]High Court Division, this Division awards a cost of Tk. 50,000/- to be paid by the plaintiffs to the defendants within 4(four) weeks from the date of receipt of the order, failing which, the order shall stand vacated. The defendants can file additional written statement within four weeks of payment of cost in default they will be debarred from filing the same. ...Atiqur Rahman(Md.) =VS= Khan Mohammad Ameer, (Civil), 2021(2) [11 LM (AD) 527] ....View Full Judgment |
Atiqur Rahman(Md.) =VS= Khan Mohammad Ameer | 11 LM (AD) 527 |
Order VII Rule 3 |
Code of Civil Procedure, 1908
|
Most. Rahela Khatun (Khuki) =VS= Abdul Majid Howlader | 15 LM (AD) 510 |
Order VII Rule 11(d), Ord. XXIII R. 1(3), Sec. 115 |
Rejection of plaint–– Porikkhit Banik from whom the plaintiff appellant purchased the suit land vide deed No. 1655 dated 24.08.1997 filed title suit No. 98 of 1992 which was decreed but on appeal it was reversed against which he filed Civil Revision before the High Court Division, but fearing the fate of the Civil Revision he withdrew the Civil Revision case, therefore, the bar of the provisions of Order XXIII Rule 1(3) would operate, wherein it has been stated that the plaintiff will be precluded from placing any fresh suit if permission is not taken. ––It squarely attracts Order VII Rule 11(d) of the Code of Civil Procedure and hence High Court Division did not commit any error in the decision by rejecting the plaint in revisional jurisdiction under Section 115 of the Code of Civil Procedure. .....Sree Shuvash Chandra Dhar =VS= Milon Chandra Banik, (Civil), 2023(2) [15 LM (AD) 37] ....View Full Judgment |
Sree Shuvash Chandra Dhar =VS= Milon Chandra Banik | 15 LM (AD) 37 |
Order VII rule 1(c) |
The question of fresh threat from the heirs of defendant does not arise as
the suit was filed at a time when there was definite cause of action and as
such the Court· was not correct in holding that there was no continuing
threat to file the suit.
|
Saitan Bibi and others vs Chairna Bewa and others | 51 DLR (AD) 28 |
Order VII rule 1(e) |
Cause of action-What it is-The incidence of cause of action must be
antecedent to the bringing of the suit at a time when the right to sue
arose for the first time. It consists of the entire set of facts which
gives rise to a legal action and is to be provided to entitle the plaintiff
to succeed in the suit. It has little relation either to the defence to be
taken by the defendant or the nature of relief prayed for.
|
Surat Sarder and others vs Aftal Hossain and others | 49 DLR (AD) 99 |
Order VII rule 7 |
In the name of granting general or other relief the Court cannot and would
not mount any surprise on the defendant and make him liable for something
which does not arise out of the plaint and, as such, he had no occasion to
answer the same. This is merely an extension of the principle of natural
justice.
|
Hefzur Rahman vs Shamsun Nahar Begum | 51 DLR (AD) 172 |
Order VII rule 10 |
Jurisdiction to entertain suit-A corporation can be said to carry on
business at the place where it has a branch only in respect of a cause of
action which arises wholly or in part at such place. If no part of the
cause of action accrues at the place of the branch officer the mere fact of
the corporation having a branch office at the place will not give the court
jurisdiction to entertain a suit.
|
Khondaker Mahtabuddin Ahmed, vs Matin Tea and Trading Company | 46 DLR (AD) 92 |
Order VII rule 11 |
When the nature of transaction becomes doubtful on the specific allegation
made by the pre-emptor then the matter is required to be tested by adducing
evidence in order to ascertain the nature of transaction and to decide the
case properly.
|
Alfazuddin Mollah and others vs Md Almas Chokder and anr. | 56 DLR (AD) 179 |
Order VII rule 11(d) |
Questions of limitation and res judicata raised in the application for
rejecting the point are mixed questions of law and fact which need thorough
investigation on adequate evidence for arriving at a correct decision on
framing specific issues by the trial Court.
|
Mahbubul Haque vs Md A Kader Munshi | 52 DLR (AD) 49 |
Order VII rules 14 & 18 |
Non-filing of documents with plaint-No malafide or ill-motive could be
attributed in not filing the document at the time of filing of the
plaint-The new provision for such filing of documents has been added for
the purpose of speedy disposal of cases but that does not mean that in case
of a bonafide human error the Court will not be in a position to grant
leave in unavoidable and exceptional circumstances to file necessary
documents.
|
Afsaruddin Ahmed vs Banque Indosuez | 44 DLR (AD) 136 |
Order VII Rule III |
Code of Civil Procedure, 1908
|
Abdur Rashid -Vs.- Purba Shingha Gram Jame Masjid and others | 13 ALR (AD) 153 |
Order VII Rule 4 |
Code of Civil Procedure, 1908
|
Kanchan Mallik and others -Vs.- Saleha Begum and others | 9 ALR (AD) 115 |
Order VII Rule 3 |
A decree of permanent injunction cannot be passed on a vague and unspecified land–– For correction of the deed, permanent injunction and also for a declaration that S.A. Record is wrong–– It transpires from the evidence that the plaintiff failed to prove his exclusive possession in the suit property. The suit land is not properly specified. The suit was filed for permanent injunction also besides correction of deed, declaration of title. A decree of permanent injunction cannot be passed on a vague and unspecified land. .....Ashkar =VS= Abul Khayer, (Civil), 2022(2) [13 LM (AD) 465] ....View Full Judgment |
Ashkar =VS= Abul Khayer | 13 LM (AD) 465 |
Order VII, rule 11 |
The Code of Civil Procedure, 1908
|
Gita Sen =VS= Md Rafiqul Islam | 13 LM (AD) 49 |
Order VII, Rule 11 |
The Code of Civil Procedure, 1908
|
Saifuddin Ahmed =VS= Dr. Hosne Ara Begum @Golap | 14 LM (AD) 183 |
Order VII, Rule 3 |
The plaintiff mentioned the number of the C.S. and the S.A. Khatians and also the plot numbers of the lands in the suit and thus there was full compliance with the previsions of Order VII, rule 3 of the Code. And since no fraction or portion of the lands of the two plots was claimed, there was no necessity of giving any chauhaddi or boundary of the suit plots. …Karim Khan & ors Vs Kala Chand & ors, (Civil), 7 SCOB [2016] AD 32 ....View Full Judgment |
Karim Khan & ors Vs Kala Chand & ors | 7 SCOB [2016] AD 32 |
Order VII rule 11 |
A plaint of a suit should not be rejected under order 7 rule 11 of the Code
of Civil Procedure only on point of res-judicata–
|
Sumon Paul =VS= Binode Kumar Mali | 5 LM (AD) 139 |
Order VII Rule 11 |
The plaintiff has no cause of action to file the suit. The High Court Division rightly held that the plaintiff had no cause of action for the suit and accordingly rejected the plaint under Order 7 Rule 11 of the Code of Civil Procedure for want of cause of action. We find no cogent reason to interfere with the same. The appeal is dismissed. .....M/S. Samrat Shoes and Leather Manufacturing Industries Ltd. =VS= Md. Zahirul Islam, (Civil), 2018 (2) [5 LM (AD) 426] ....View Full Judgment |
M/S. Samrat Shoes and Leather Manufacturing Industries Ltd. =VS= Md. Zahirul Islam | 5 LM (AD) 426 |
Order VII Rule 11 read with section 151 |
The Code of Civil Procedure, 1908
|
Jahangir Khandaker & others =VS= Mosammat Ayesha & others | 1 LM (AD) 253 |
Order VII Rule 11(d) read with section 151 |
For rejection of the plaint– For declaration that the contract
No.315510058 dated 31.01.2011 was illegal, void and the same is not binding
upon the plaintiff–
|
Mosharaf Com. Tex. Mills Ltd =VS= ECOM Agro. Corp. Ltd & others | 1 LM (AD) 24 |
Order VII, rule 11 read with Section-151 |
For specific performance of contract- The learned Judges invoked section 151 of the Code, but the inherent power under the section cannot be exercised on assumptions and presumptions of facts and or on suspicion. .....Md. Noor Hossain & others =VS= Mahbuba Sarwar & others, (Civil), 2016-[1 LM (AD) 341] ....View Full Judgment |
Md. Noor Hossain & others =VS= Mahbuba Sarwar & others | 1 LM (AD) 341 |
Order VII, Rule 3 |
It is clear that the plaintiff mentioned the number of the C.S. and the S.A. Khatians and also the plot numbers of the lands in the suit and thus there was full compliance with the previsions of Order VII, rule 3 of the Code. And since no fraction or portion of the lands of the two plots was claimed, there was no necessity of giving any chauhaddi or boundary of the suit plots. .....Karim Khan =VS= Kala Chand, (Civil), 2017 (2)– [3 LM (AD) 236] ....View Full Judgment |
Karim Khan =VS= Kala Chand | 3 LM (AD) 236 |
Order VII, rule 11 |
Mandatory injunction –
|
Comprehensive Holdings Ltd.=VS=MH Khan Monju | 3 LM (AD) 198 |
Order VII, rule 11 and Sec. 151 |
It is true that the provisions of rule 11 are not exhaustive in the matter of rejection of plaint and in exceptional situation a plaint can be rejected under section 151 of the Code even if it does not come within the mischief of this rule. …Salahuddin Khan =VS= Md. Abdul Hai Bahar, (Civil), 2020 (1) [8 LM (AD) 133] ....View Full Judgment |
Salahuddin Khan =VS= Md. Abdul Hai Bahar | 8 LM (AD) 133 |
Order VII, rule 11 read with section 151 |
The trial Court shall be at liberty to decide the issue of maintainability
along with the other issues involved in the suit on the evidence to be
adduced by the parties at the trial– In the plaint clear averment having
been made that out of 2.90 acres land from C.S. plot No. 210 of C.S.
khatian No. 215, the Government acquired 2.20 acres land and 70 decimals
land remained unacquired of which the plaintiffs were the owners, but the
Housing Authority illegally created a plot out of the unacquired land as
described in schedule `kha' to the plaint and allotted the same to
defendant No. 9 and that, that illegal action of the Housing Authority gave
cause of action to the plain-tiffs to file the instant suit, the question
of the suit being barred either under the provisions of the Emergency
Requisition of property Act, 1948 or the Ordinance, 1982
|
Abdul Khaleque(Md.) =VS= National Housing Authority | 8 LM (AD) 314 |
Order VII, rule 3 |
Declaration with possession of the Land– SA khatian is not a document of title and any person cannot claim title on the basis, at best, it creates a presumption regarding possession– Appellate Division finds that the plaintiff-respondent has been able to prove his title by adducing oral and producing documentary evidence. It is to be mentioned that the SA khatian is not a document of title and any person cannot claim title on the basis of the SA khatian and, at best, it creates a presumption regarding possession but in the instance case. This Division has perused the schedule of the plaint, from where it is seen that the plaintiff sought for declaration and possession in respect of the entire land of the plot. So there is no necessity to specification by mentioning the names of the contiguous land owners. .....East West Property Development (Pvt) Ltd. =VS= Abdur Rob Miaji, (Civil), 2022(1) [12 LM (AD) 179] ....View Full Judgment |
East West Property Development (Pvt) Ltd. =VS= Abdur Rob Miaji | 12 LM (AD) 179 |
Order VII, Rule 11 |
Rejected the plaint–
|
Javed Alam(Md.) =VS= A.F. Alfajuddin Ahmed | 6 LM (AD) 1 |
Order VII, Rule 11 |
Section 17A and 17B of the Registration Act shall apply only to the registration of the Bainanama deed, but the plaintiffs have not claimed to have registered deed of sale on the basis of said Bainanama. Therefore, it does not apply to the instant suit; there is no ground to reject the plaint of the plaintiffs. The trial Court rejected the application under Order VII, Rule 11 of the Code of Civil Procedure on the ground that the suit was brought by the plaintiffs only in respect of protecting their possession over the suit land and not for specific performance of contract and hence the provisions of sections 17A and 17B do not apply to the instant suit. ...Kari Moulavi Abdul Gafur =VS= Mohammad Nurullah, (Civil), 2019 (1) [6 LM (AD) 190] ....View Full Judgment |
Kari Moulavi Abdul Gafur =VS= Mohammad Nurullah | 6 LM (AD) 190 |
Order 7, Rule 11 |
The Code of Civil Procedure, 1908
|
Jahanara Begum =VS= Hazi Nizamuddin | 16 LM (AD) 582 |
Order VII, rule 3 |
Vague and unspecified description of the suit land did not fulfil the requirement of Order VII, rule 3 of CPC– A mere look at the schedules to the plaint from where the plaintiffs were allegedly dispossessed, it is apparent that those were totally vague and unspecified and the description of the suit land did not fulfil the requirement of the mandatory provisions of Order VII, rule 3 of the Code of Civil Procedure and that being the state of the suit land, the plaintiffs were not entitled to get any relief in the suit, the High Court Division rightly allowed the appeal and dismissed the suit. Appellate Division finds no reason to interfere with the impugned judgment and decree. Accordingly, the appeal is dismissed. ...M. Delwar Hossain =VS= Mohammad Ali, (Civil), 2021(2) [11 LM (AD) 26] ....View Full Judgment |
M. Delwar Hossain =VS= Mohammad Ali | 11 LM (AD) 26 |
Order VII Rule 10 |
Return of plaint of summary suit– It appears that there was no jurisdiction given in that cause list for Mr. Justice Md. Rezaul Hasan to hear any summary suit. Hence, on this ground also it appears that the High Court Division acted without jurisdiction. The petitioner involved in that suit is none other than Ansarul Haque and the suit is against Manager, Agrani Bank. Be that as it may, the High Court Division did not have jurisdiction allocated to it to hear such summary suits. Appellate Division finds merit in the appeal, which is allowed, without, however, any order as to costs. The impugned order of the High Court Division is hereby set aside. The application for return of plaint is allowed. The plaintiff, if so advised, may file the suit before any court competent to hear the accordance with law. ...Islami Bank Bangladesh Ltd. =VS= Bengal Techno Leather Ltd. , (Civil), 2021(2) [11 LM (AD) 113] ....View Full Judgment |
Islami Bank Bangladesh Ltd. =VS= Bengal Techno Leather Ltd. | 11 LM (AD) 113 |
Order VII, rule 11 |
The State Acquisition and Tenancy Act, 1950
|
Mosharaf Hossain(Md.) =VS= Mst. Rekha Khatun | 10 LM (AD) 91 |
Order VII, rule 13; Order 39, rules 1 and 2 |
Whether or not a claim is barred by limitation is a mixed question of facts
and law and can be decided by the trial Court upon taking evidence during
the course of hearing.
|
Md. Foyez Ahmed Jewel and others -Vs.- Md. Rabiul Munsi and others | 2019 ALR (AD) Online 4 |
Order VIII rule 5- |
Since specific assertion was not denied specifically either in written
statements or in evidence the Court is not inclined to permit the
defendants to raise such a question at this stage.
|
Nurul Islam and others vs Jamila Khatun and others | 53 DLR (AD) 45 |
Order VIII rule 6 & Order XLI rule 27 |
Documents placed before the Appellate Division for the first time to be
accepted as additional evidence cannot be accepted at such late stage as no
case of set-off was made out in the written statement.
|
Bangladesh Shipping Corporation vs Rakibuddin Ahmed and others | 48 DLR (AD) 203 |
Order VIII, rules 1,3,4 and 5 |
According to the law of pleadings, the defendant is bound to deal
specifically each allegations of fact, the truth of which is not admitted.
The written statement must not only deal with specifically, the defendant
must also answer the point of substance. If his denial of fact is not
specific but evasive, the said fact shall be taken to be admitted. In such
event, the admission itself being proof, no other proof is necessary.
|
Zafela Begum and others Vs. Atikulla and others | 1 ALR (AD) 1 |
Order IX Rule 6(1)(a) and Section 80 |
Pattannama–– No notice was served upon the Government–– The Gazipur
Samabaya Krishi Khamar Limited prayed for a decree in respect of 200 acres
of land out of 232.60 acres of land of C.S. plot No.171, which is huge land
and it claimed that the Bhawal Court of Wards settled the same to one
Muslehuddin and two others on 06.02.1939 on the basis of pattannama. There
is no finding as to whether said Gazipur Samabaya Krishi Khamar Ltd. had
been able to prove said pattannama or not . Considering the aforesaid facts
and circumstances, Appellate Division finds substance in the appeal.
|
DC, Gazipur =VS= Gazipur Samabaya Krishi Khamar Ltd. | 15 LM (AD) 432 |
Order IX, rule 13 |
Obtained decree by practising fraud upon the Court–– Since the last Court of facts upon proper appreciation of the evidence of record held that notice upon the defendant No.1 of the said suit was not duly served and plaintiff of the said suit obtained decree by practising fraud upon the Court, Appellate Division is of the view, that it rightly set aside the ex- parte decree and directed the trial Court to allow the defendant of the said suit to file written statement upon restoring the Title Suit No.5 of 1996 to its original file and number. .....Din Mohammad =VS= Mofizur Rahman Miah, (Civil), 2023(2) [15 LM (AD) 425] ....View Full Judgment |
Din Mohammad =VS= Mofizur Rahman Miah | 15 LM (AD) 425 |
Order IX Rule 13 and Order XLIII, rule 1(d) |
The Code of Civil Procedure, 1908
|
Syed Rafiqul Islam =VS= A.K.M. Aminul Haque | 10 LM (AD) 69 |
Order IX rule 3- |
Ordinarily failure of Counsel's clerk to inform him about the date of
hearing of the case will not be regarded as a sufficient ground for his
non-appearance but there may be special circumstances when a clerk's
failure may amount to be a sufficient cause.
|
Alfu Miah and others vs Government of the People's Republic of Bangladesh | 45 DLR (AD) 112 |
Order IX rule 9 |
The Court below committed no illegality in holding that the subsequent
application under Order IX rule 9 was not maintainable.
|
Alhaj Mokler Hussain Talukder vs Ainuddin Ahmed and others | 45 DLR (AD) 37 |
Order IX rule 9 |
It is wrong to say that for a remedial action against an order time would
start to run against one from the date of the order and not from the time
when one comes to know about it.
|
Keramat Ali Bhuiyan vs Ramizuddin Ahmed Bhuiyan | 43 DLR (AD) 58 |
Order IX rule 13 |
Suit for specific performance of contract for the sale of the suit property
instituted by the plaintiff-respondent. Defendant-appellant denied the
contract by filing a written statement-The case was fixed for hearing on
16-2-1983-0n that day the appellant filed an application for adjournment
with a medical certificate on the ground of illness-The prayer for
adjournment was not granted and the suit was decreed ex parte on that date.
Miscellaneous Case under Order IX, rule 13 of the Code of Civil Procedure
was started- Then again the case was fixed for hearing on 26- 7-1983-The
appellant unsuccessfully moved another application for examination of her
doctor on 13-9- 1983 and on 1-11-1983 the Miscellaneous Case was
dismissed-High Court Division refused to interfere with the order.
|
Khaleda Roushan Ara vs Nurul Huq (Md) | 42 DLR (AD) 48 |
Order IX rule 13 |
Appeal-Effect of its disposal-'Appeal' which has not been defined in the
Code, is meant to be an application by an aggrieved party asking an
appellate Court to set aside, modify or revise a decision of a subordinate
court-an 'appeal' even if irregular, incompetent or time-barred is
nonetheless an appeal-the order of dismissal of a memorandum of appeal as
time-barred comes within the deeming provision of section 2(2) of the Code,
because by such an order the rights of parties with regard to matters in
dispute are finally determined.
|
Abdul Mannan vs Jobeda Khatun & others | 44 DLR (AD) 37 |
Order IX rule 13 and Order V rule 19A |
Ex parte decree-Delivery of possession of the land given in execution of
the ex parte decreeWhether the trial Court which passed the ex pane
decree on being satisfied that the summons was duly served upon the
defendant by recording a finding to this effect has jurisdiction to go
against its own finding and set aside the ex parte decree passed by the
trial Court itself, although the defendant did not depose on oath before
the Court that he had not received the summons.
|
Md Insan Ali vs Mir Abdus Salam | 40 DLR (AD) 193 |
Order IX rule 13 |
It will be wholly inequitable to permit the defendants to prove their facts
in this Court after l 0 years. The defendants must take the consequence for
their own laches.
|
Red Sun Limited & others vs Uttara Bank | 51 DLR (AD) 256 |
Order IX rules 3-8 |
Order 5 rule 3(2) of the Code of Civil Procedure provides that when the
court is convinced on the prayer of the opposite party that the personal
appearance of the plaintiffs is necessary for ascertaining any dispute on
the day of appearance of the defendant, it shall make an order for such
appearance. When an order is made for appearance on specified date, the
party upon whom the direction is given must appear in court. Consequence of
non-compliance is provided in Order 9 rule 12, that is to say, the
provisions of Order 9 rules 3-8 shall apply. Government of Bangladesh and
others:
|
Nazma Majid: -Vs.- Most. Naznin Begum and others | 10 ALR (AD) 241 |
Order IX Rule 13 |
A decree obtained by practising fraud is non-existent and can not be allowed to stand. Chief Justice Edward Coke of England about three centuries ago observed that, “fraud-avoids all judicial acts, ecclesiastical or temporal”. .....Deputy Commissioner, Brahmanbaria =VS= Chand Miah, (Civil), 2022(2) [13 LM (AD) 277] ....View Full Judgment |
Deputy Commissioner, Brahmanbaria =VS= Chand Miah | 13 LM (AD) 277 |
Order IX Rule 13 |
Ex-parte decree –
|
Azirun Nessa(Most.) =VS= Sree Arun Chandra Biswas | 10 LM (AD) 332 |
Order IX Rule 13 |
The Code of Civil Procedure, 1908
|
RAJUK =VS= Momtaz Hasan Chowdhury | 4 LM (AD) 319 |
Order IX, rule 13 |
The Code of Civil Procedure, 1908
|
Kashaituli Jame Mosque Waqf Estate =VS= Md. Abdus Salam & others | 1 LM (AD) 239 |
Order IX, Rule 4 |
The Employment of Labour (Standing Orders) Act, 1965
|
Crescent Jute Mills Co. Ltd =VS= Chairman, Labour Court | 4 LM (AD) 101 |
Order IX, rules 6 (1) (a) and 11 |
The Appellate Division held that since the High Court Division did not
enter into the merit of the appeal and sent the suit on remand to the trial
Court for fresh hearing on the erroneous view of the facts and the law as
pointed out by the Appellate Division and the Appellate Division has heard
both the parties, the Appellate Division consider it proper to send the
appeal back to the High Court Division for hearing the same afresh and
dispose of the same in accordance with law on the evidence on record.
|
Immam Hossain Sawdagor-Vs.-Abul Hashem and others | 6 ALR (AD) 137 |
Order IX, rule 13 |
Ex parte decree– Appointment of guardian for the minor defendants. Since
they were not properly represented in the suit, the ex parte decree cannot
be sustained– The Court Nazir is not a proper person to be appointed
guardian of minors. we find from Order No.6 dated 13.11.1989 that the Court
guardian submitted a report to the effect that the minors do not have any
title or interest in the suit. Such a report is clearly illegal since it is
not within the jurisdiction of the Courts Nazir to decide whether any party
to the suit has interest in the suit. Also, in submitting such report, he
is clearly acting against the interest of the minor defendants.
|
Anowarul Hoque =VS= Mohammad Tafazzal Mondal | 9 LM (AD) 305 |
Order IX Rule 13 |
The Code of Civil Procedure, 1908
|
Jamuna Builders Ltd. =VS= Government of Bangladesh | 9 LM (AD) 308 |
Order IX Rule 13 |
Fraud practised upon the defendant– Appellate Division is of the view
that because of fraud practised upon the defendant-appellants, they could
not contest the suit and as such, they were prevented by sufficient cause
from appearing before the Court when the suit was called on for hearing.
Accordingly, the appeal is allowed and the impugned judgment delivered by
the High Court Division affirming the judgment and order dated 16.03.2005
passed by the learned Additional District Judge, Fifth Court, Chittagong in
Miscellaneous Appeal NO. 05 of 2005 affirming the judgment and order dated
02.11.2004 passed by the learned Joint District Judge, First Court,
Chittagong in Miscellaneous Case No. 565 of 2004 is set aside.
|
Deputy Commissioner(DC), Chittagong =VS= Md. Karim | 11 LM (AD) 19 |
Order X rule 2 |
Order 10 rule 2 authorises the court at any stage of the proceeding to
examine orally any person able to answer any material question relating to
the suit. The examination is not for the purpose of taking evidence, but
for the purpose of ascertaining the real matter in controversy. This
examination enables the court to narrow down the controversy and the court
should regularly press it into service. Government of Bangladesh and
others:
|
Nazma Majid: -Vs.- Most. Naznin Begum and others | 10 ALR (AD) 241 |
Order X rule 4 |
The Appellate Division observed that Order 10 rule 4 provides the
consequence of refusal or inability of the lawyer to answer the queries
made by the court. The object of this rule is to get obscure point cleared
up by obtaining in-formation from the parties and also if possible to get
admissions so as to narrow down the issues. Where a lawyer expresses
inability to state further pleadings or where the court requires the
personal appearance of the party, it should essentially examine the parties
counsel and if it still feels that further elucidation of the point or
question is necessary, it may call the party to be present in court in
person. The non-appearance of a party on the date fixed, the court can pass
appropriate order for the interest of justice. If he fails to appear in
person without lawful authority, the court may also pronounce judgment
against such party. The court may also make such order in relation to the
suit as it thinks fit. Government of Bangladesh and others:
|
Nazma Majid: -Vs.- Most. Naznin Begum and others | 10 ALR (AD) 241 |
Order X Rule 2 |
The petitioner is a necessary party in the suit because the company enjoyed the loan when she was its Chairman, as such, the suit should be disposed of in her presence–– A company incorporated under the Companies Act is a juristic person. A share-holder in not the owner of the company or its assets. The Company itself owns its proper¬ties. A share-holder is only entitled to the dividends, if declared. On winding up however, after payment of its debts, he is entitled to participate in the distribution of its assets. The liability of a share-holder, whether he is the Chairman of the Board of Directors, or a director, is only to the extent of the face value of the shares he holds, nothing more than that. But if he guarantees repayment of the loan, enjoyed by the company or mortgages his property to the creditor, to ensure repayment of the loan by the company, he on the failure of the company to make such repayment, becomes liable, not as a share¬holder but as a guarantor or mortgagor or both as the case may be. ––In the present case, the petitioner is a necessary party in the suit because the company enjoyed the loan when she was its Chairman, as such, the suit should be dis-posed of in her presence. However, her liability is not dependent on her status as the Chairman or share-holder of the company unless it is found on evidence that she executed the charge documents in favour of the bank or mortgaged her property in its favour in order to ensure repayment of the loan. Only in the case she will be liable. .....Bakul Akter =VS= Bangladesh, (Civil), 2022(2) [13 LM (AD) 641] ....View Full Judgment |
Bakul Akter =VS= Bangladesh | 13 LM (AD) 641 |
Order XI rule I- |
Interrogatories may be delivered only with the leave of the court and it is
in the discretion of the Court to grant or not to grant leave. In the facts
of the case, the learned trial Court rightly exercised his judicial
discretion in refusing to grant leave.
|
Moon Garments Industries and others vs Janata Bank, Foreign Exchange Corporate Branch and others | 50 DLR (AD) 72 |
Order XI rule 8 |
The provision of Order XI, rule 8 of the Code of Civil Procedure is
directory in character and the court is yet possessed of powers to extend
time in a proper case.
|
Bisheswar Bhattacharjee vs Shantimoy Bhattacharjee and others | 52 DLR (AD) 124 |
Order XI rule 21 |
The foundation for exercise of power under this provision of law is the
fulfillment of two requirements-the first is the failure of interrogated
party to comply with any order to answer the interrogatory, and the second
is the interrogating party applying to the Court to impose the penalty.
|
Yusuf vs Moftal Ahmed Sowdagar | 45 DLR (AD) 178 |
Section 11 |
Code of Civil Procedure, 1908
|
Aziz Ara Rahman =VS= RAJUK | 16 LM (AD) 623 |
Order XIII rule 10 |
After allowing the application under Order 13 Rule 10 of the CPC the
appellate Court was not justified at all to take up the appeal for hearing
before coming of those records without assigning any reason. The appellate
court below should have taken appropriate measures for compelling the
authority concerned for sending the records called for by it. Without doing
so and without assigning any reason for not doing so the appellate court
took up the appeal for hearing. This has not been proper at all. The
appellate court below will take all necessary actions for bringing the
records called for and if, even after that, those records are not available
for any just and valid reasons the appellate court, after stating those
reasons, may hear and dispose of the appeal.
|
Sobha Rani Paul -Vs.- Md. Awlad Hossain | 5 ALR (AD) 67 |
Order XIV rule 1 |
High Court Division misdirected itself in law in holding that the trial
Court was not justified in raising the plea of adverse possession suo motu
by not framing any issue on this point earlier.
|
Abdul Jalil Miah (Md) vs Niropama Ritchil and others | 49 DLR (AD) 61 |
Order XIV rule 1 |
From the facts of the case it is evident that it was totally unnecessary
for the Judges to indulge in the discussion on polygamy in Islam which was
neither an issue in the suit nor required to be decided in the context of
the pleadings of the parties.
|
Elias (Md) vs Jesmin Sultana | 51 DLR (AD) 99 |
Order XIV rule 1 |
The plea that the suit was not properly valued and required court-fee was
not paid being not an issue in the suit, it cannot be considered for the
first time by the Appellate Division.
|
Mokbul Hossain vs Khandaker Mujibur Rahman | 51 DLR (AD) 77 |
Order XIV rule 2 |
The plaintiff may take recourse to section 151 for rejection of the
set-off, alternatively he may bring the maintainability of the set-off as
an issue of law to be decided first.
|
Sultana Jute Mills Ltd and others vs Agrani Bank and others | 46 DLR (AD) 174 |
Order XIV, Rule 2 |
On mixed issues of law and fact, and when the decision on issues of law
depends upon the decision of issues of fact the Court has to dispose of all
the issues together.
|
Nurul Majid Mahmood Humayun -Vs.-Brigadier General Kazi Mahmud Hassan PSC (Rtd.) and others | 4 ALR (AD) 34 |
Order XIV Rule 1 |
Code of Civil Procedure, 1908
|
Babru Mia =VS= Mosammat Noorjahan Begum | 16 LM (AD) 631 |
Order XV Rule-3 read with Order 14 Rule-2 |
Issue of Law —Issue touching maintainability of Suit.
|
Saiful Hoque Vs. Bangladesh House Building Finance Corporation | 17 BLT (AD) 187 |
Order XVI rule 1 |
The privilege of a litigant to take out summons to witnesses is subject to
the satisfaction of the Court. If the prayer appears to be wanting in
bonafides or it is considered as an abuse of the process of the Court, it
will be lawful for the Court to refuse the prayer.
|
Mansur Ali Sikder vs Kanailal Banarjee & others | 50 DLR (AD) 14 |
Order XVII rule 1 |
Adjournment cannot be allowed as a matter of course, even if both the
parties ask for it.
|
Mahbubur Rahman and others vs Agrani Bank and another | 55 DLR (AD) 61 |
Order XVII rule 2 and Order XX rule 4(1) |
Ex parte decree—
|
Alfu Miah and ors. vs Government of the People's Republic of Bangladesh | 45 DLR (AD) 112 |
Order XVIII rule 17 |
Discretionary power given by Order XVIII, rule 17 to recall and examine
witnesses must be exercised in accordance· with law and not arbitrarily.
|
Nurul Islam vs Md Abdur Rashid | 37 DLR (AD) 32 |
Order XVIII, Rules: 1 and 2 |
In the instant case, the defendant did not admit the case of the plaintiff and filed written statement denying the plaintiff’s claim that the suit property was an abandoned property, so it was the plaintiff who had the right to begin the hearing of the suit as per provision of rule 1 of order XVIII of the Code. Rule 2(1) of the Code has clearly provided that on the day fixed for hearing of the suit the party having the right to begin shall state his case and produce evidence in support of the issues which he is bound to prove, the other party shall then state his cause and produce his evidence (if any) and may then address the Court generally on the whole case. Therefore, there was no scope on the part of the plaintiff to avoid examination of witness and state the facts of the plaint at the hearing of the suit. …Bangladesh Vs. Md. Mizanur Rahman, (Civil), 9 SCOB [2017] AD 37 ....View Full Judgment |
Bangladesh Vs. Md. Mizanur Rahman | 9 SCOB [2017] AD 37 |
Order XVIII Rule 17 |
Recalling witnesses– It is also an established principle and a requirement of law that a party to the suit may be given the opportunity to call witnesses and produce any evidence at any time during the trial. The trial does not finish until pronouncement of judgement. …Mortuz Ali Khalifa =VS= Jobeda @ Kalu Bibi, (Civil), 2020 (1) [8 LM (AD) 38] ....View Full Judgment |
Mortuz Ali Khalifa =VS= Jobeda @ Kalu Bibi | 8 LM (AD) 38 |
Order XVIII, Rules: 1 and 2(1) |
The defendant did not admit the case of the plaintiff and filed written statement denying the plaintiff’s claim that the suit property was an abandoned property, so it was the plaintiff who had the right to begin the hearing of the suit as per provision of rule 1 of order XVIII of the Code. Rule 2(1) of the Code has clearly provided that on the day fixed for hearing of the suit the party having the right to begin shall state his case and produce evidence in support of the issues which he is bound to prove, the other party shall then state his cause and produce his evidence (if any) and may then address the Court generally on the whole case. Therefore, there was no scope on the part of the plaintiff to avoid examination of witness and state the facts of the plaint at the hearing of the suit. .....Government of Bangladesh =VS= Md. Mizanur Rahman, (Civil), 2018 (1) [4 LM (AD) 138] ....View Full Judgment |
Government of Bangladesh =VS= Md. Mizanur Rahman | 4 LM (AD) 138 |
Order XX rule 4(1 ) |
Ex parte decree—When to be passed and extent of judgment - Before an ex
parte decree is passed, the court is required to go through the records
whether such a decree could be passed on the assertionsl evidence of the
plaintiff, but the court is not required to delve deep into the matter and
ferret out a defence plea that may lead to the dismissal of the plaintiffs
case.
|
Alfu Miah and others vs Government of the People's Republic of Bangladesh represented by the Deputy Commissioner Dhaka & others | 45 DLR (AD) |
Order XX rule 12 |
Where a suit is for the recovery of possession of immoveable property and
for rent or mesne profits the Court may pass a decree, inter alia, for the
rent or mesne profits which have accrued on the property during a period
prior to the institution of the suit.
|
Primal Ranjan Das vs Nasima Khatun | 49 DLR (AD) 144 |
Order XX Rule-1 |
Plaintiff appellant instituted title suit for specific performance of
contract against the defendant respondents—the learned Assistant Judge
upon considering the evidence in the case by his judgment and decree dated
25.1.84 decreed the suit on contest against defendant No. 1 with cost an ex
parte against the rest without cost — it was also directed that “the
plaintiff must deposit the balance consideration price of Tk-3000/- by
15.2.1984 failing which the suit shall stand dismissed”—the plaintiff
being unaware of the judgment and order dated 25.11.1984 could not make the
deposit in time in spite of having the judgment in his favour —
admittedly the judgment in the present case was not delivered after the
hearing of the arguments on 12.1.1984 and the date for judgment was fixed
on 22.1.1984. In the daily cause list of 22.1.1984 the matter did appear
for judgment but evidently the judgment was not delivered as the matter
appeared for judgment again in the ‘daily cause list’ of 6.2.1984 —
Held The party’s and their lawyers source of information about the suit
etc. is the ‘daily cause list’/register of the court. There is nothing
on record to show that the plaintiff or his lawyer had otherwise any
information or knowledge that the judgment would be delivered on
25.1.1984—in the facts and circumstances of the case we hold that there
has been a clear miscarriage of justice by reason of non-consideration
either by the learned Subordinate Judge or by the learned Judge of the High
Court Division of a simple and apparent fact. The omission is such as
cannot be adequately deplored—appeal is allowed. [Paras-15 & 16]
|
Md. Sumon Miah Vs. Falani Begum & Ors. | 3 BLT (AD) 221 |
Order XXI Rule 85 and 86 |
Specific procedure for holding auction– Artha Rin Adalat is a Civil Court
and subject to the provisions of the Ain, the Artha Rin Adalat have all the
powers and jurisdictions under the Code of Civil Procedure, 1908–
|
S.M . Masud Hasan =VS= Judge, Artha Rin Adalat No.3, Dhaka | 7 LM (AD) 117 |
Order XXI, rule 90 |
Auction sale–
|
Sardar Md Abdur Rahman =VS= Janata Bank Dhaka | 7 LM (AD) 318 |
Order XXI Rule 58 |
Artha Rin Adalat Ain, 2003
|
Sonali Bank Limited =VS= Mosammat Salma Begum | 13 LM (AD) 26 |
Order XXI rule 16 and Order XXII rule 10 |
Assignment of interest-When the decree was not finally drawn up there could
not be any lawful objection in filing an application under Order XXII rule.
10 of the Code. The Court failed to consider this material aspect that in
the suit preliminary decree was drawn and the suit was not completely
disposed of and before that stage application for assignment of shares was
filed. The High Court Division misdirected itself in holding that the
application was one under Order XXI rule 16 by which the question to be
decided is whether the applicant is the person entitled to execute the
decree but that stage did not reach till then.
|
Manik Chand Bibi vs Abdul Mutakabbir Chowdhury | 44 DLR (AD) 251 |
Order XXI rule 26 |
Execution of decree has no nexus with the contempt proceedings drawn for
disobedience to the Court's order. Therefore there is no ground to continue
the stay of execution of decree after disposal of appeal on the plea of
pending contempt proceedings.
|
Calmare Navigation Co Ltd vs Mohammad Nurul Hoque and another | 51 DLR (AD) 35 |
Order XXI rule 26 |
When the summonses were duly served and accepted by the trial Court the
decree-holder should be allowed to enjoy the fruit of the decree and for
filing a subsequent suit further proceeding of the execution case cannot be
stayed.
|
Jabed Ali Sheikh (Md) and others vs Md Abdus Sobhan Sheikh and others | 55 DLR (AD) 64 |
Order XXI, rule 49 (1), (2) and (3) |
Code of Civil Procedure, 1908
|
Dine Ara Begum and others. -Vs.- Bangladesh Rubber Industries, a registered Partnership Firm, represented by its Managing Partner, Mr. Ifteker Hussain and others | 12 ALR (AD) 100 |
Order XXI rule 29 |
Since the petitioners were not parties in the Partition Suit and their suit
being not by the judgment debtor against the decree holder of the court
that passed the decree in the partition suit, provision of Order XXI rule
29 of the Code cannot be availed of by the petitioners.
|
Abul Bashar and others vs Prafulla Kumar Das and others | 56 DLR (AD) 139 |
Order XXI Rule 58 |
Court has no jurisdiction to entertain an objection under rule 58 after a
sale has taken place.
|
Md. Sekandar and another -Vs.- Janata Bank Ltd. and others | 9 ALR (AD) 81 |
Order XXI rule 32 |
Since an application under Order XXI rule 32 of the Code for violation of a
decree for injunction is maintainable, the Single Bench decision holding
that such an application is not maintainable has no force.
|
Zainal Abedin & another vs Md Abdur Rahim | 53 DLR (AD) 69 |
Order XXI rules 100 and 101 |
A third party can file a complaint in the executing court if he is
dispossessed by the purchaser in execution of a decree and in such
circumstances, the court has power to hold investigation and if the court
is satisfied that the applicant was in possession on his own account, or on
account of someone other than the judgment debtor, the court may restore
him in possession. Dispossession must be in the course of execution.
|
Md. Sekandar and another -Vs.- Janata Bank Ltd. and others | 9 ALR (AD) 81 |
Order XXI rules 68 and 90 |
Setting aside auction sale-the High Court Division upheld the sale only on
the ground that the son of defendant No. 1 being heir of the
judgment-debtor contested the suit and, as such, it must be presumed the
son had knowledge of the execution case when he himself was a party in the
execution proceeding. High Court Division failed to consider that the
decree was put into execution for realisation of decretal costs and the
main question was whether the auction sale was legally held and to these
material questions no judicial mind was applied. Consequently the judgment
is liable to be set aside.
|
Narayan Chandra Sil vs Manhar Mondal and others | 43 DLR (AD) 152 |
Order XXI rule 90 |
Alleged trend in the publication and conduct of sale. The appellant could
not prove by legal evidence that he could not file the application within
time because of fraud or that his applications were within time from the
date of his knowledge of such fraud. There was no error in rejecting the
applications summarily.
|
Ahmed Meah vs Ejahar Meah | 40 DLR (AD) 276 |
Order XXI rule 90 |
Auction sale having taken place and the sale having been confirmed the
issuance of sale certificate in favour of the auction-purchaser cannot be
withheld by parties not connected with the mortgage suit or the mortgage
execution case.
|
ADC (Rev) and Assistant Custodian vs Tohidul Hossain Chy and others | 51 DLR (AD) 117 |
Order XXI rules 101 & 103 |
The Court's direction restoring bonafide claimant to possession cannot be
held back on the ground of institution of a suit claiming present
possession of the property.
|
Abdul Kaiyum (Md) vs Krishnadhan Banik and others | 49 DLR (AD) 140 |
Order XXI Rule 100, 102 |
The Code of Civil Procedure, 1908
|
Syed Jobayer Hossain =VS= Judge, Artha Rin Adalat, Dhaka | 13 LM (AD) 470 |
Order XXI Rule 37 and 38 |
The Code of Civil Procedure
|
Agrani Bank Limited =VS= Md. Salek Uddin | 14 LM (AD) 179 |
Order XXI Rule 58 |
Artha Rin Adalat Ain, 2003
|
Nasir Hossain Chaklader =VS= Artha Rin Adalat, Dhaka | 12 LM (AD) 641 |
Order XXI Rule 58 |
Transfer of the Property Act
|
Abdul Halim Gaznabi =VS= M.M. Badsha Shirazi | 15 LM (AD) 529 |
Order XXI Rule 90 |
Artha Rin Adalat Ain, 2003
|
Mansur Rahman(Md.) =VS= Abdul Mannan Sardar | 12 LM (AD) 571 |
Order XXI, rules 90 and 91 |
Code of Civil Procedure
|
Mohammad Gias Uddin Chowdhury =VS= Ministry of Law, Justice & Parl. Afrs., BD | 8 LM (AD) 322 |
Order XXI, rule 29 |
It is by now a well settled legal principle that a stranger to a decree cannot invoke the provisions of Order XXI, rule 29 of the Code for staying the proceedings of an execution case and for ready reference. .....Zainab Banu =VS= Md. Nisar Uddin, (Civil), 2017 (2)– [3 LM (AD) 503] ....View Full Judgment |
Zainab Banu =VS= Md. Nisar Uddin | 3 LM (AD) 503 |
Order XXI, Rule 103 |
The Code of Civil Procedure, 1908
|
Sekandar (Md.) =VS= Janata Bank Ltd. | 3 LM (AD) 448 |
Order XXI Rule-38 |
The maintainability of the second application under Order 21 Rule 38 C.P.C.
was challenged on the ground that It was barred by resjudicata, an earlier
application having been dismissed by the Artha Rin Adalat. The High Court
Division rightly held that the principle of resjudicata is not applicable
in such proceeding. [Para-91
|
Sonali Bank Vs. S. Razia Nahar & Ors. | 4 BLT (AD) 155 |
Order XXI Rule-77(2) |
Public auction of moveable property — In the instant case the auction
sale was held on 5.11.88 and the executing court accepted the quotation of
the auction purchaser appellant the auction sale of the appellant was
formally accepted by the court by its order dated 10.11.88 giving time to
the auction purchaser appellant to deposit the entire deed amount by
15.11.88 and the same was duly deposited — sale become absolute and
cannot be set aside. [Para- 12]
|
Fariduddin Chowdhury Vs. M/S Sylhet Glass Works Ltd & Ors. | 3 BLT (AD) 168 |
Order XXI Rule 37 |
The Artha Rin Adalat Ain, 2003
|
Mst. Sufia Khatun =VS= Artha Rin Adalat, Khulna & others | 1 LM (AD) 226 |
Order XXI Rule 90 |
The Constitution of Bangladesh, 1972
|
Mohd. Junayed Quader =VS= Artha Rin Adalat, Dhaka | 5 LM (AD) 418 |
Order XXI, rules 92 and 93 |
The story of auction purchase, giving licence of two plots to the
plaintiffs and then the execution of the deed of Hiba-Bil-Ewaj have been
set up by the defendants during the period between 9th July, 1955 and 21st
June,1962 with a view to deprive the plaintiffs from their inherited and
acquired property.
|
Zafela Begum and others Vs.Atikulla and others | 1 ALR (AD) 1 |
Order XXI rule 97 |
CPC
|
Sheikh Jarjis Hossain and others -Vs.- Agrani Bank Limited and others | 5 ALR (AD) 10 |
Order XXI, Rules 89, 90 and 91 |
The judgment-debtor claims that the mortgaged property has been sold at a
low price but he has not filed any application under Order 21 rule 90 of
the Code of civil procedure which is the only forum to dispose of the said
dispute. Thereafter the judgment-debtor filed the writ petition on 13th
July, 2008. The High Court Division without issuing any rule made the
impugned judgment on the basis of the oral submission made by the learned
Counsel for the judgment-debtor that the judgment debtor was agreeable to
pay the decreetal amount with interest. The judgment-debtor did not file
any such application in the executing Court for payment of the decreetal
amount nor did he approach the decree-holder to pay the decreetal amount by
installments or to resolve the dispute by way of amicable settlement.
|
Farid Uddin Mahmud =VS= Md. Saidur Rahman | 9 LM (AD) 247 |
Order XXI Rule 99 |
Whether fraud was practiced in obtaining the decree can only be resolved after disposal of the suit, a decree obtained 17 years before could not be stayed for indefinite period. The Appellate Division held whether fraud was practiced upon the plaintiff-petitioner in obtaining the decree dated 19.11.2000 passed in Title Suit No. 241 of 1998 of the First Court of Subordinate Judge, Dhaka can only be resolved after disposal of the suit. The disposal of the aforesaid suit will take long time but in the meantime, execution of a decree obtained on 19.11.2000 could not be stayed for indefinite period. Meanwhile 17 years have elapsed but the decree-holder-respondents could not enjoy the fruit of the decree. Such being the case, the Appellate Division is of the view that the High Court Division was perfectly justified in rejecting the revisional application summarily upholding the order dated 09.05.2016 passed by the learned Joint District Judge, First Court, Dhaka in Title Execution Case No. 01 of 2001. In the light of the findings made be-fore, the Appellate Division does not find any substance in this civil petition for leave to appeal. Accordingly, this civil petition is dismissed. Abdul Haque Milu. -Vs.- Mst. Hamida Khatun and others. (Civil) 2019 ALR (AD) Online 1 ....View Full Judgment |
Abdul Haque Milu. -Vs.- Mst. Hamida Khatun and others | 2019 ALR (AD) Online 1 |
Order XXII rule 4(3) |
The heirs of the deceased defendant who are not party to the suit, will not
be bound by the decree and in that sense the decree will not be effective
against the heirs. If an effective decree can be passed against the other
defendants the whole suit cannot abate.
|
Chairman, Rajdhani Unnayan Kartipakkha (RAJUK), Dhaka -Vs.- Manzur Ahmed @ Manzoor Ahmed and others | 8 ALR (AD) 1 |
Order XXII rule 2 |
There is no limitation for substitution of the heirs of deceased parties in
a revisional application-In a suit for partition, the right to sue survives
till final decree is made and heirs of deceased defendants or plaintiffs
should be brought on record else complications shall follow.
|
Hossain (Md) and others vs Dildar Begum and others | 55 DLR (AD) 60 |
Order XXII rule 3 |
Substitution of the representatives of the deceased respondent when they
are already on record in another capacity - No abatement.
|
People's Republic of Bangladesh, vs Abul Kaiser Chowdhury | 37 DLR (AD) 85 |
Order XXII rule 3 |
The civil revision case having been disposed of two years back there
remains nothing for recording an order of abatement in the case which was
disposed of on merit by the High Court Division.
|
Monir Ahmed Fakir and others vs Abdul Jalil Munshi and others | 50 DLR (AD) 198 |
Order XXII rule 3(1) |
Proceeding as to tenancy-Substitution-Appellants have kept alive the issue
of heritability of monthly tenancy in this appeal and while disposing of
the appeal the Court will take note of its latest decision on the subject
in 44 DLR (AD) 1 that a monthly tenancy is heritable. The view of the High
Court Division that the appellants cannot claim substitution on the basis
of the case reported in 32 DLR (AD) 171 is therefore no longer
sustainable.
|
Sharifa Khatun vs Md Yusuf | 44 DLR (AD) 285 |
Order XXII rule 4(4) |
Under the law the heirs of a non contesting defendant need not be
substituted.
|
Jalaluddin (Md) and others vs Laily Begum and others | 48 DLR (AD) 163 |
Order XXII rule 9 |
A legal representative of a deceased party in a suit if brought on record
by substitution in any ancillary or related proceeding arising out of the
suit, the substitution of the party will hold good for the suit as well and
no fresh application to bring the legal representative of the deceased
party on the record of the suit would be necessary.
|
Akhtar Banu vs Habibunessa and others | 48 DLR (AD) 164 |
Order XXII rule 9 |
The High Court Division erred in proceeding on the basis that on account of
non-substitution of only one plaintiff the suit as a whole had abated and
the revision had become infructuous. The suit being one for declaration of
title the revision is required to be disposed of on merit by the High Court
Division.
|
Nuruzzaman (Md) vs Moazzem Hossain and others | 53 DLR (AD) 56 |
Order XXII rule 10 |
Assignment of interest-when the decree was not finally drawn up there could
not be any lawful objection in filing an application under Order XXII r. 10
of the Code. The Court failed to consider this material aspect that in the
suit preliminary decree was drawn and the suit was not completely disposed
of and before that stage application for assignment of shares was filed.
The High Court Division misdirected itself in holding that the application
was one under Order XXI rule 16 by which the question to be decided is
whether the applicant is the person entitled to execute the decree but that
stage did not reach till then.
|
Manik Chand Bibi alias Rezian Nahar and another vs Abdul Mutakabbir Chowdhury | 44 DLR (AD) 251 |
Order XXIII rule 1 |
Prayer for withdrawing a suit-As the plaint does not disclose any formal
defect, the provision for withdrawal of the suit is not at all attracted.
Besides, there had earlier been an order of remand and opportunity to
produce all the papers.
|
Khabiruddin vs Bangladesh | 43 DLR (AD) 201 |
Order XXIII rule 1(1) |
The withdrawal of suit by necessary implications blots out the effect of
the judgments and decrees prior to withdrawal. If the application for
withdrawal is allowed and at the same time the decrees passed by the courts
below be retained it would create a situation contradictory in terms. An
order of setting aside of judgments and decrees in the suit withdrawn
should naturally follow.
|
Abdur Rahman and others vs Kheru Malitha and others | 50 DLR (AD) 71 |
Order XXIll rule 1(2) |
Withdrawal of the suit with liberty to sue afresh-Plea of formal defects in
the schedule to the plaint-Defects can be amended by filing a petition for
amendment of the plaint-Discretion vested in the court under Order XXIII,
rule 1(2) CPC has been properly exercised-No illegality committed in
rejecting revisional application summarily.
|
Md Badruddin Moral vs Santosh Kumar Sen | 41 DLR (AD) 156 |
Order XXIII rule 1(3) |
Dismissal of a suit for non-prosecution does not amount to withdrawal of
the suit and the plaintiff is not precluded to file a fresh suit on a new
cause of action.
|
Amir Hossain Khairati vs Abdul Aziz Bepari and others | 47 DLR (AD) 106 |
Order XXIII, rule 3 |
The suit is not maintainable as filing of the subsequent suit, i.e. the instant suit on the self same cause of action, by the plaintiffs, is barred by law–– Mohammad Miah, the predecessor of the defendants Nos. 2 to 4 from whom the plaintiffs purchased the suit property also filed Title Suit No. 70 of 1969 against the Government on the same plea and the said suit was permitted to be withdrawn by Order No. 55 dated 23-3-1974 on payment of cost of Taka 15 to the defendant. The plaintiffs under such circumstances filed the instant suit without disclosing anything about filing of the earlier suit by Mohammad Hossain Miah and since there is no permission to sue afresh, the present suit filed by the plaintiffs claiming through the heirs of Mohammad Miah is hit by Order XXIII, rule 3 of the Code of Civil Procedure. Thus the suit is not maintainable as filing of the subsequent suit, i.e. the instant suit on the self same cause of action, by the plaintiffs, is barred by law since the plaintiffs could not produce any paper that he took permission to sue afresh at the time of withdrawal of the earlier suit. ––Thus the finding of the trial Court that the plaintiffs failed to prove their case and, as such, they are not entitled to get any relief and rather the defendants case that the suit land was under river for more than 20 (twenty) years and, as such, the title and possession has vested in the Government, appears to be correct. ––Appellate Division finds merit in this appeal and thus the appeal is allowed without any order as to costs and the judgment and order impugned herein, passed by the High Court Division is set aside. .....Golam Kabir =VS= Professor Abdul Halim, (Civil), 2023(1) [14 LM (AD) 34] ....View Full Judgment |
Golam Kabir =VS= Professor Abdul Halim | 14 LM (AD) 34 |
Order XXIII, rule 3 |
Compromise between the parties–
|
National Engineers Ltd. & others =VS= Jubak Housing & others | 1 LM (AD) 308 |
Order XXIII Rule 1(1) & (2) r/w Ord.VI, Rule 17 |
Withdrawal of the suit and the appeal with the permission to sue afresh– Appellate Division has already held that the plea of defect of parties was not taken by the defendants and if the plaintiffs feel one or more parties are required to be added they could do so by way of amendment. In addition, the plea of the plaintiffs that there are wrong statements in the plaint and that if amendment is allowed to correct the wrong statements, the nature and character of the suit will be changed. This plea does not stand to reason because the wrong statements made in the plaint can be corrected by way of amendment which will not change the nature and character of the suit. The plaintiffs may also pray for consequential relief by way of amendment on payment of ad valorem court fee and for addition of such relief, withdrawal of the suit and appeal with the permission to sue afresh is not at all necessary. This Division finds that the judgment of the High Court Division allowing the application for withdrawal of the suit and the appeal with the permission to sue afresh should be set-aside. The plaintiff-respondents could not make out a case for withdrawal as contemplated under sub-rules (1) and (2) of rule 1 of Order XXIII of the Code of Civil Procedure. The impugned judgment and order passed by the High Court Division is set-aside and the appellate Court is directed to dispose of the appeal as expeditiously as possible preferably within a period of 3 (three) months from the date of receipt of a copy of this judgment. .....Deputy Commissioner, Satkhira =VS= Md Babor Ali Gazi, (Civil), 2022(1) [12 LM (AD) 132] ....View Full Judgment |
Deputy Commissioner, Satkhira =VS= Md Babor Ali Gazi | 12 LM (AD) 132 |
Order XXV Rule-1 |
Held: We find that at any stage of a suit filed by a non-resident foreigner
having non- sufficient immovable property in Bangladesh can be directed by
the court suo motu or on the application of the defendant to give security
for payment of all costs incurred or likely to be incurred by the
defendant. There is nothing in the aforesaid provision that such a
plaintiff can be directed to give security only after filing of the written
statement. It is the discretion of the court to direct such a plaintiff to
give security for the cost. If the court finds considering the facts and
circumstances of the case that such security is to be furnished either
before or after filing the written statement that cannot also be found
fault with. But the court should not reject the prayer for furnishing
security by such a plaintiff merely on the ground that written statement
has not been put in. The court should consider the merit or otherwise of
the application before rejecting it. In the instant case the defendant
petitioner is not precluded from filing a fresh application for furnishing
security by the plaintiff for cost of the suit after filing written
statement.
|
Danish Milk Bangladesh Ltd. Vs. Danish Dairy Board | BLT (AD) 192 |
Order XXVI Rule 10(2) |
Whether an Advocate Commissioner’s report will go into evidence without
examination of the Advocate Commissioner on oath before the Court.
|
Abdun Noor and others -Vs.- Aziruddin and others | 13 ALR (AD) 33 |
Order XXVI rule 10 |
Commissioner's report is to be evaluated in the facts of the case on the
evidence adduced and the Court has wide discretion in such matter. Mere
acceptance of the report should not give rise to any apprehension in the
mind of the litigant.
|
Abul Quasem vs Md Lutfur Rahman | 43 DLR (AD) 17 |
Order XXVI rule 12 |
The report itself of the Advocate Commissioner is not evidence but if the
Commissioner deposes on oath before the court then the same is evidence.
|
Abdus Sattar (Md) and others vs Lalon Mazar Sharif and Seba Sadan Committee and others | 56 DLR (AD) 180 |
Order XXVI rule 14 |
The purpose of section 4 is to see that a transferee outsider does not
force his way into a dwelling house in which other members of the
transferor's family have right to live. Once the partition decree is made
in preliminary form, the rest is for the Commissioner. But the Court at
that stage is not concerned as to what direction should be given to the
Commissioner for completing the partition.
|
Sree Jugal Kishori Sarker vs Azizur Rahman | 40 DLR (AD) 150 |
Order XXVI Rule 9 |
Commissions for local investigation– The purpose of local investigation under this provision is to ascertain the nature and feature and market value etc. of any property. Again, quite clearly this provision is not meant for ascertaining possession of property, which can only be done by taking evidence in the course of trial. We are of the opinion that the High Court Division was in error in making the Rule absolute. The appellate Court rightly rejected the application. The appeal is allowed, without however, any order as to costs. The impugned judgement and order of the High Court Division is set aside. …A.K.M. Fazlul Haque =VS= Bazlur Rahman, (Civil), 2020 (1) [8 LM (AD) 1] ....View Full Judgment |
A.K.M. Fazlul Haque =VS= Bazlur Rahman | 8 LM (AD) 1 |
Order XXVI, Rule 9 |
The executing Court has got ample jurisdiction to see whether the
possession of the land covered by the pre-empted kabalas has been delivered
or not by taking a report from the Advocate Commissioner through local
investigation.
|
Tahera Khatuan -Vs.-Al-haj Arosh Bibi and others | 4 ALR (AD) 207 |
Order XXVII rules 1 and 2 |
The Government by a Notification dated 14th December 1955 authorised the
Military Estate Officer as specified in the Schedule of the said
Notification, to sign and verify the plaint or written statement in a suit
by or against the Government. Deputy Commissioner not authorised to sign
the plaint or written statement and when he does it, the Court must ignore
it and proceed as if no plaint or WS has been filed.
|
Maqsood Alam vs People's Republic of Bangladesh | 38 DLR (AD) 290 |
Order XXVII rules 1 and 2 |
Specific provisions having been made in rule I Order XXVII CPC as to the
person who is authorised to sign a plaint or written statement on behalf of
the Government, provisions in rule 2 of Order 27, have no application in
such matters. Provisions of rule 2 are applicable to circumstances not
covered by specific provisions made in rule 1 of Order XXVII.
|
Maqsood Alam vs The People's Republic of Bangladesh | 38 DLR (AD) 290 |
Order XXXII rule 3- |
The order of remand made by the Subordinate Judge in the circumstances of
the case should not have been sustained by the High Court Division.
|
Sukumar Sen vs Gouranga Bejoy Dey | 42 DLR (AD) 18 |
Order XXXII rule 3 |
The duty of the guardian ad /item continues throughout the execution
proceeding. By the grossly negligent act of the guardian the minors had
suffered substantial injury. Their appeal is therefore allowed and the suit
decreed.
|
Rekha Datta vs Chittagong Urban Co-operative Bank | 46 DLR (AD) 133 |
Order XXXII rules 6 & 7 |
A suit in which a plaintiff is minor cannot be compromised without leave of
the Court.
|
Kalitara Biswas vs Mrinal Kanti Biswas | 39 DLR (AD) 216 |
Order 33 Rule 1 |
On perusal of the order of the trial Court it appears that the trial Court
came to the findings in as much as, an admitted fact is that the petitioner
has a provident fund account where he has Tk.l 1,5337- as balance and that
necessarily shows that the plaintiff is owner of the property worth more
than Tk.l,0007- and as such he cannot be considered a pauper as
contemplated under Order 33 Rule 1 of the Code of Civil Procedure. The High
Court Division appreciating the order of the trial Court and submissions of
the learned Advocate of the parties has affirmed the judgment of the trial
Court holding that the trial Court committed no illegality in coming to the
findings that the petitioner has got Tk.l 1,5337- in his provident fund as
well as owner of the landed property measuring about 0.70 decimals and as
such, the petitioner is not entitled to claim him as a pauper as
contemplated under the provision of the Order 33 Rule 1 of the Code of
Civil Procedure. - In drawing such conclusions and affirming the order of
the trial Court we find the High Court Division committed no error of law
warranting interference by this Division.
|
Md. Abdul Khaleque Vs. Uttara Bank Ltd & Ors. | 20 BLT (AD) 94 |
Order 33 Rule 1 |
Refusing to accord permission to institute the suit as being pauper
|
Md. Abdul Khaleque Vs. Uttara Bank Limited & Ors. | 20 BLT (AD) 256 |
Order XXXIV Rule-2(1) |
In a suit for sale the preliminary decree is drawn up in the same manner as
in a suit for foreclosure—the plaintiff-appellant is entitled to interest
‘pendent lite’ i.e. from the date of the institution of the suit up to
the date of the passing of the decree. [Paras-18 & 19]
|
Sonali Bank Vs. M/S Begg and Beg Jute Incorporated Ltd. & Ors. | 6 BLT (AD) 174 |
Order XXXVII, Rule 2 |
Summary suit– High Court Division should not have entertained the dispute
in question–
|
Agrani Bank =VS= Ansarul Hoque | 5 LM (AD) 414 |
Order XXXVIll rule 5 |
In the aforesaid premises, the proceeds of the letter of credit do not squarely come within the provision of Order XXXVIII rule 5 for attachment before judgment for which the Court could interfere asking for furnishing security or by attachment before judgment in order to satisfy any possible decree that may be passed in the suit. Gooryonly (BD) Textile Ltd vs Chartkar Information Holding Ltd and ors 54 DLR (AD) 70. |
Gooryonly (BD) Textile Ltd vs Chartkar Information Holding Ltd and ors. | 54 DLR (AD) 70 |
Order XXXVIII rules 5-10 |
The power of attachment before judgment being a power interfering with a party's right to enjoy its own property, the court should be circumspect in allowing the prayer for such attachment. Islam Steel Mills Ltd vs Nirman International Ltd and others 50 DLR (AD) 21. |
Islam Steel Mills Ltd vs Nirman International Ltd and others | 50 DLR (AD) 21 |
Order XXXIX, Rules 1-2 r/w Section 151 |
Permanent injunction– A suit for permanent injunction the plaintiff must
prove exclusive possession– In a suit for permanent injunction the
plaintiff must prove exclusive possession, which in this case is disproved
by plaintiff’s latest record of right which is in the name of the
plaintiff’s predecessor in interest.
|
Zahuruddin Talukder =VS= Abdul Mannan | 10 LM (AD) 88 |
Order XXXIX Rule 2(3) r/w section 151 |
Code of Civil Procedure, 1908
|
Md. Azizur Rahman Chowdhury -Vs.- Tauhiduddin Chowdhury and others | 12 ALR (AD) 143 |
Order XXXIX rule 1 |
Whether a co-sharer in specific and separate share of the ejmali property
is entitled to retain his possession till legal partition by injunction
against another cosharer threatening dispossession.
|
Moharram Ali vs Mahammad Madhu Mia | 41 DLR (AD) 92 |
Order XXXIX rule 1 |
A relief of temporary injunction cannot be granted for the mere asking of
it.
|
Bangladesh Agriculture Board vs Md Fazlur Rahman Akunjee | 41 DLR (AD) 25 |
Order XXXIX rules 1 & 2 & Section 151 |
No injunction can be granted against operation of bank account and withdrawal of the money in deposit as per terms of contract. The account being opened with a specific condition setting the act of operation of payment, the Bank is bound to comply with the condition on which it has accepted the deposit. Ziauddin Ahmed and others vs Arab Bangladesh Bank 53 DLR (AD) 107. |
Ziauddin Ahmed and others vs Arab Bangladesh Bank | 53 DLR (AD) 107 |
Order XXXIX rule 2 |
Temporary injunction-Question of issuing such injunction in a suit for declaration simpliciter. If the suit is otherwise maintainable and it is found that the defendant without being in possession, wants to disturb the plaintiffs possession, the court cannot be powerless to grant temporary injunction in an appropriate case. An order granting injunction must be a speaking order. Ramani Marak vs Jamini Marak 46 DLR (AD) 51. |
Ramani Marak vs Jamini Marak | 46 DLR (AD) 51 |
Order XXXIX rule 4 |
Temporary injunction cannot be granted as it would lead to interference with and ultimately frustrate the order of the Court which was passed in the suit under section 9 of the Specific Relief Act. Monowara Begum vs Syed Ashrafuddin 40 DLR (AD) 251. |
Monowara Begum vs Syed Ashrafuddin | 40 DLR (AD) 251 |
Order XXXIX rule 4 |
Injunction against execution proceeding, when proper-Bank's suit for recovery of money from its debtor ended in a compromise decree permitting the debtor to sell the mortgaged property at Tk 7 lakh to clear bankdebt and the debtor was to make up shortfall. The debtor made an agreement with appellant for sale of the property for Taka 6 lakh. When the Bank started Execution Case for sale of the mortgaged property, the appellant filed a suit for specific performance of his contract against the debtor and the Bank, on the basis of the agreement, with a prayer for injunction, which was allowed. On appeal, the High Court Division set aside the injunction order omitting from consideration the material points i.e. payment of money and possession of the land by the appellant-High Court Division did not properly exercise its discretion in interfering with the trial Court's order of injunction. Momin Miah vs Moinuddin Hossain 42 DLR (AD) 175. |
Momin Miah vs Moinuddin Hossain | 42 DLR (AD) 175 |
Order XXXIX rule 7 |
The plaintiffs got a temporary injunction restraining defendant No.1 from disturbing their possession in their specific areas. The order of injunction was violated by defendant No. 1 who was held guilty, convicted and sentenced to civil imprisonment. The conviction was upheld by the District Judge but set aside by the learned Single Judge, who took an erroneous view of law. Moharram Ali vs Mohammad Madhu Mia 41 DLR (AD) 92. |
Moharram Ali vs Mohammad Madhu Mia | 41 DLR (AD) 92 |
Order XXXIX rule 7 |
Rule 7 of Order XXXIX was not attracted to the seizure of accounts books. The case of Padam Sen and another vs State of UP AIR J96J(SC) 218 arose out ofa suit for realisation of money on the basis of a promissory note alleged to have been executed by the defendants in favour of the plaintiff. The defendants apprehended that the plaintiff would fabricate his books of accounts with respect to payments made by them and applied for the seizure of the account books. The Indian Supreme Court held that accounts books were not the subject matter of the suit, and rule 7 of Order XXXIX of the Code was not attracted. Md Mobarak Hossain vs Md Mustafa Hossain 40 DLR (AD) 20. |
Md Mobarak Hossain vs Md Mustafa Hossain | 40 DLR (AD) 20 |
Order XXXIX, Rules 1 and 2 read with section 151 |
Permanent injunction–
|
Kari Moulavi Abdul Gafur =VS= Mohammad Nurullah | 6 LM (AD) 190 |
Order XL rule 1 |
The Appellate Division is loathe to interfere in the matter of appointment of a receiver unless the circumstances are of such an exceptional nature that refusal might entail a risk of clear abuse of process or some gross injustice. Akhteruzzaman vs Ali Amjad Khan and others 50 DLR (AD) 199. |
Akhteruzzaman vs Ali Amjad Khan and others | 50 DLR (AD) 199 |
Order XL rule 1 |
No order for appointment of receiver should be passed to deprive a de facto possessor of the property. Kamiruddin and others vs Md Mokshed Ali Biswas and others 48 DLR (AD) 14. |
Kamiruddin and others vs Md Mokshed Ali Biswas and others | 48 DLR (AD) 14 |
Order XL rule 5 |
Mere filing of an appeal is not sufficient to warrant stay of execution of
a decree. Stay is a matter of discretion of the Court.
|
Anwar Hossain Bhuiyan vs Shaikh Moslem Ali | 42 DLR (AD) 158 |
Order XL Rule I |
Appoint a receiver– Receiver should be appointed in a suit for partition
with the consent of the parties, especially where the family property
consists of land–
|
Umme Shaheda Akhter Rina(Most.) =VS= Ayub Ali | 9 LM (AD) 538 |
Order XLI Rule 31 |
Judgment and decree passed ex parte by the High Court Division is violative
of the provisions of Order XLI Rule 31 of the Code of Civil Procedure––
In examination-in-chief the plaintiff claimed that there are three
tin-shed in the suit land. But in his cross-examination he has said
“অত্র মামলার আরজীর তপসিলে
সম্পত্তির বিবরণ হইল নালিশী
সম্পত্তি বর্তমানে খালি আছে”
P.W.2 in his evidence has said, “নালিশী
সম্পত্তি খালি আছে” The plaintiff did
not examine any other witness to prove his possession. That is, the
plaintiff has failed to prove his possession in the suit land. In
such view of the matter, the instant suit, without the prayer
for recovery possession, was not maintainable.
|
Shafika Chowdhury =VS= Badrul Amin @ Manu Sardar | 15 LM (AD) 466 |
Order XLI Rule 31 |
Declaration of title and recovery of khas possession–– Adversely reversing the lower appellate court's judgment committing a palpable wrong–– The judgment of reversal by the appellate court was absolutely correct in terms of Order 41 Rule 31 of the Code of Civil Procedure but the High Court Division totally misdirected itself in not considering this positive aspect of the case standing in favour of the plaintiff based on evidence both oral and documentary holding the title on her favour and that she was dispossessed on 26.07.1984 from the suit land. There is a total misreading and misconstruing of evidence on record in affirming the judgment and decree recorded by the trial and setting aside the judgment and decree passed by appellate Court causing serious miscarriage of justice. The judgment and order dated 06.03.2014 passed by the High Court' Division is hereby set aside and the judgment and decree passed by the appellate Court is restored. .....Mst. Karimonnessa =VS= Md. Dudu Sarkar, (Civil), 2023(2) [15 LM (AD) 472] ....View Full Judgment |
Mst. Karimonnessa =VS= Md. Dudu Sarkar | 15 LM (AD) 472 |
Order 41 Rule 21 |
Dismissed the appeal for default– The impugned judgement and order of the High Court Division indicates non-consideration of all the attending facts and circumstances. The learned Advocate for the petitioners before us has pointed out that there was indeed another learned Advocate who was engaged at the appeal stage namely Mr. Foyzul Huq Biswas. Hence, it cannot be said that the appellants did not have any representative to deal with their appeal. We, therefore, find that the High Court Division was not correct in setting aside the order of the learned Additional District Judge, Bhola in Miscellaneous Case [Sani] No.1 of 2009 arising out of Title Appeal No.74 of 1993. ...Abdul Mannan Howlader =VS= Joinal Abedin, (Civil, 2021(1)[10 LM (AD) 298] ....View Full Judgment |
Abdul Mannan Howlader =VS= Joinal Abedin | 10 LM (AD) 298 |
Order XLI Rule 33 |
read with
|
Chittagong Steel Mills Limited -Vs.- MEC, Dhaka, House | 12 ALR (AD) 113 |
Order XLI, rule 31 |
Suit for declaration that deed of partition is fraudulent, collusive etc. without any prayer for a decree for recovery of khas possession is not maintainable– The suit for declaration that the impugned partition deed is fraudulent and illegal and cancellation of the deed without any prayer for consequential relief i.e. declaration of title to the suit property and recovery of khas possession of the part of the suit property in which the plaintiffs are not in possession, is not also maintainable. But the trial court has not considered this legal issue correctly and the trial court erroneously decreed the suit. The High Court Division without reversing any material findings of the appellate court made the Rule absolute, set-aside the judgment and decree of dismissal of the appellate court and restored the erroneous judgment and decree of the trial court. The High Court Division committed an error of law occasioning failure of justice and, as such, the judgment and decree passed by the High Court Division is liable to be interfered with. .....Momina Begum =VS= Sahera Khatun, (Civil), 2022(2) [13 LM (AD) 75] ....View Full Judgment |
Momina Begum =VS= Sahera Khatun | 13 LM (AD) 75 |
Order XLI Rule 31 |
Remand the case for rehearing to the lower appellate court–– Appellate Division has found that the lower appellate court misdirected itself reversing the judgment of the trial court which is a fallacious one. Only two or three lines are not at all justified to reverse a full fledged judgment of the trial court. It is absolutely bereft of the norms as laid down in the Code of Civil Procedure. High Court Division though on a positive appreciation of the said legal aspect made the rule absolute setting aside the judgment of the appellate court but misdirected itself in not sending the case back on remand to the lower appellate court for rehearing of the case and to pass a proper judgment in keeping with the provisions of order XLI Rule 31 of Code of Civil Procedure. Therefore, the impugned judgment and Order of the High Court Division as well as the judgment and decree of the lower appellate court passed by the Additional District Judge, Kushtia in Title Appeal No. 171 of 1989 are set aside and the case is sent back on remand to the lower appellate court to pass a proper judgment in consonance with the provisions of Order XLI Rule 31 as expeditiously as possible preferably within 6(six) months on receipt of this judgment in accordance with Law. .....Shahera Khatoon(Most.) =VS= Hoshne-ara Banu, (Civil), 2023(1) [14 LM (AD) 193] ....View Full Judgment |
Shahera Khatoon(Most.) =VS= Hoshne-ara Banu | 14 LM (AD) 193 |
Order XLI rules 4 and 20 |
Non-appealing defendant - Condition for impleading such a defendant in the
appeal-An appeal can be filed by some of the defendants when it proceeds
from a ground common to all the defendants. But the appeal which was
incompetent at its inception for omission to implead a necessary party
would remain incompetent till the end of it, unless otherwise during the
pendency of the appeal necessary parties are brought on record.
|
Anwara Begum vs Shahanewaz | 43 DLR (AD) 156 |
Order XLI rule 14(3) |
The provisions of the Code not inconsistent with the Order being made
applicable to Election Petition and the appeal being the continuation of
the Election petition, the provisions of the Code which do not bar
dispensing with service of notice to the noncontesting parties are
applicable to appeal arising out of election petition.
|
Moulana Delwar Hossain Saydee vs Sudhangshu Shekhar Halder and others | 51 DLR (AD) 171 |
Order XLI rule 14(3) |
Order XLI, rule 14(3) of the Code has given ample power to the High Court
Division to dispense with the service of notice upon the non-contesting
respondents.
|
Shahe Alam (Md) vs Md Golam Sarwar and others | 52 DLR (AD) 164 |
Order XLI rule 19 |
The previous conduct of the respondent may. be reprehensible but the matter
(restoration of the appeal) cannot be decided on the ground of mere
previous conduct. Whether he was prevented by sufficient cause from
appearing when the appeal was called on for hearing will determine the
outcome of the proceeding under Order XLI, rule 19 CPC.
|
Mrinal Kanti Guha & others vs Brajendra Lal Dhar & others | 44 DLR (AD) 9 |
Order XLI rule 20 |
Non-appealing defendant-Condition for impleading such a defendant in the
appeal-An appeal can be filed by some of the defendants when it proceeds
from a ground common to all the defendants. But the appeal which was
incompetent at its inception for omission to implead a necessary party
would remain incompetent till the end of it, unless otherwise during the
pendency of the appeal necessary parties are brought on record.
|
Anwara Begum and others vs Shahanewaz and another | 43 DLR (AD) 156 |
Order XLI rule 23 |
Remand is not to be granted as a matter of course-when registration was
done under section 60 of the Registration Act and the requirement of law
was fulfilled; prayer of remand does not merit consideration as the
defendants did not adduce any evidence to rebut the presumption attached to
the registration made under law.
|
ADC, Rev and Asst. Custodian Vested Property, Chandpur vs Tafurnessa | 41 DLR (AD) 124 |
Order XLI rule 23 |
Co-sharers in a partition suit-Remand in the interest of justice The
appellants produced documents in support of their case though they, women
and minors being heirs of plaintiffs brother, could not put any witness in
the box for want of proper legal advice-A case for remand has been made
out.
|
Jobeda Khatun vs Hamid Ali | 40 DLR (AD) 101 |
Order XLI rule 23 |
The Court will not decide a point especially in the interlocutory matter
which will not advance the cause of justice. It will merely delay the
process of coming to a conclusion as to claim and counter-claim which can
only be thrashed out in the pending suit.
|
The Dhaka Dyeing and Manufacturing Co Ltd vs Agrani Bank | 42 DLR (AD) 60 |
Order XLI rule 27 |
Substantial cause' explained-Additional evidence may be allowed to be led
at the appellate stage if facts disclose that one of the parties to the
proceedings withheld some material evidence to prejudice of the other party
which the other party got to know and secured by having access to them at a
later stage.
|
Rahela Khatun vs Fayezuddin Shah | 38 DLR (AD) 6 |
Order XLI rule 31 and section 115 |
Reversal of the trial Court's findings that "Pitamber and after his death
his heirs had been possessing the suit land" by the learned Sub-Judge by
ignoring altogether material facts and documents. The learned Sub-Judge
also held without any basis that "It is presumed that Samad Ali's tenancy
right continued" though there is no evidence of possession of the plaintiff
predecessors' right from the beginning of the present century upto 1963
when the plaintiffs allegedly purchased. These findings as to Samad Ali's
and plaintiffs' possession cannot be legally sustained. Further the
learned. Sub-Judge without considering the finding of the trial Court that
the plaintiffs failed to prove that the defendant Nos. 4- 6 were the heirs
of Samad Ali just in one sentence found that "the plaintiffs have
sufficiently proved that their vendors are heirs of Samad Ali." Such a
finding ought not to have been allowed to stand in revision when the same
was raised as the first ground. Appeal allowed.
|
Nur Ahmed vs Nur Ahmed | 40 DLR (AD) 175 |
Order XLI rule 33 |
The appellate Court can pass any order as the case may require
"notwithstanding that the appeal is as to part only of the decree and may
be exercised in favour of all or any of the respondents or parties although
such respondents or parties may not have filed any appeal or objection".
|
Md Osman Gani vs Kulsum Bibi | 37 DLR (AD) 63 |
Order XLI, Rule 19A |
Hearing of appeal from both the sides on merit without pronouncing judgment
cannot dismiss the appeal for default– The law has provided the provision
that judgment shall have to be pronounced in open Court at once or any
other day and there is no room to dismiss the appeal for default.
Therefore, the order of dismissal recorded while appeal was fixed for
judgment by the learned Additional District Judge, 5th Court, Dhaka and
judgment of the High Court affirming the same by the single Judge caused
serious miscarriage of justice
|
Mahmuda Khatun =VS= Hamida Begum | 8 LM (AD) 74 |
Order XLI rule 33 |
When the appellate Court finds inconsistent, contradictory or unworkable order it is in that case alone the appellate Court would exercise its power Order 41 Rule 33 of the Code of Civil Procedure and not otherwise. We are of the view that the plaintiff without filing a cross-objection and attacking the decree of the trial Court by taking specific ground is not entitled to get the relief of setting aside the decree under Order 41 rule 33 of the Code of Civil Procedure. …Alimuzzaman (Reza)(Md.) =VS= Masudar Rahman(Md.) @ Babul, (Civil), 2020 (1) [8 LM (AD) 164] ....View Full Judgment |
Alimuzzaman (Reza)(Md.) =VS= Masudar Rahman(Md.) @ Babul | 8 LM (AD) 164 |
Order XLI Rule 27 |
Praying for declaration of title–
|
Harunur Rashid & others =VS= Mosammat Yarun Nissa & others | 1 LM (AD) 385 |
Order XLI Rule 19 |
It should be kept in mind that re-admission of appeal under Rule 19 is a discretionary power of the court and the settled principle of law is discretion is to be exercised in a judicious manner having regard to the facts and circumstances of the case. .....Bangladesh =VS= Abdul Barek Bepari, (Civil), 2017 (2)– [3 LM (AD) 93] ....View Full Judgment |
Bangladesh =VS= Abdul Barek Bepari | 3 LM (AD) 93 |
Order XLI Rule 19 & Section 151 |
To invoke the amended Rule 19A, the application for such re-admission is to be filed within 30 days of the date of dismissal of the appeal for default and the application is to be supported by an affidavit. If these two requirements, as provided in the proviso, are met only then Rule 19A could be applied to avoid delay and expedite disposal providing the court to directly re-admit the appeal without requiring to adduce evidence as required under Rule 19. .....Bangladesh =VS= Abdul Barek Bepari, (Civil), 2017 (2)– [3 LM (AD) 93] ....View Full Judgment |
Bangladesh =VS= Abdul Barek Bepari | 3 LM (AD) 93 |
Order XLI, rule 30 |
It has long been held that under Order 41 Rule 17 CPC the use of the word
may” does not mean that it is open to the Appellate Court to dispose of
the appeal on merit in the absence of the appellant. [Para-4]
|
Govt. of Bangladesh &Anr Vs. Waqer Ahmed & Ors. | 7 BLT (AD) 367 |
Order XLI, rule 31 |
The Appellate Division found that the High Court Division did not say
anything on the merit of the case. Appellate Division sent back the case to
the High Court Division for hearing afresh.
|
Rahima Begum & others =VS= Lal Mia & others | 1 LM (AD) 162 |
Order XLI, Rule 31 |
It also appears the appellate Court failed to appreciate that the even though the stolen trees were recovered from the possession of Ahamedullah, the purchaser of Lot No.10, no case was filed against Ahamedullah and further no cases were also filed against the purchasers of the contiguous plots. We are of the view that the High Court Division on proper consideration of the evidence and the materials on record made the Rule absolute. The learned counsel for the appellant also could not point out any illegality or infirmity in the decision of the High Court Division so as to call for any interference. .....Divisional Forest Officer, Cox’s Bazar =VS= Abdur Rahim Chowdhury, (Civil), 2018 (2) [5 LM (AD) 379] ....View Full Judgment |
Divisional Forest Officer, Cox’s Bazar =VS= Abdur Rahim Chowdhury | 5 LM (AD) 379 |
Order XLI, Rule 23 |
Remand–
|
Lutfur Rahman =VS= Abdul Malek Gazi | 4 LM (AD) 268 |
Order XLI Rule 31 |
The Code of Civil Procedure, 1908
|
Mortuz Ali Karar(Md.) =VS= Khatiza Banu | 12 LM (AD) 110 |
Order XLI, rule 31 r/w sec. 115(1) |
The High Court Division can review the evidence and correct the error in exercise of its revisional power– The learned Judge of Single Bench of the High Court Division also held that the learned Judge of the appellate Court while reversing the judgment passed by the trial Court did not follow the procedure laid down in Order XLI, rule 31 of the Code of Civil Procedure and thus, the judgment and decree passed by the appellate Court below is not a proper judgment of reversal. Where there is misreading of evidence or non-consideration of material evidence affecting the merit of the case, the High Court Division can review the evidence and correct the error in exercise of its revisional power. The appeal is dismissed without any order as to costs. ...Kashem Ali Sarder(Md.) =VS= Rezia Bewa(Mst.), (Civil), 2021(2) [11 LM (AD) 598] ....View Full Judgment |
Kashem Ali Sarder(Md.) =VS= Rezia Bewa(Mst.) | 11 LM (AD) 598 |
Order XLII rule 1 |
As to the new concept of 'proportionality' as a ground for judicial review
it is absolutely a new concept to our jurisprudence - In accepting it, this
court shall have to accord different weights to different ends or purposes
and different means which cannot be allowed in a review.
|
Ekushey Television Ltd and another vs Dr Chowdhury Mahmood Hasan and ors. | 55 DLR (AD) 26 |
Order XLII rule 1 |
What is required to be protected is the interest of the general public from
abuse of power by the executive, the most eloquent aspect of this case-In
public interest litigation the court will lean to protect the interest of
the general public and the rule of law vis-a-vis the private interest-Where
the rule of law comes into conflict with third party interest the rule of
law will, of course, prevail.
|
Ekushey Television Ltd and another vs Dr Chowdhury Mahmood Hasan and ors. | 55 DLR (AD) 26 |
Order XLIII Rule 1 sub-Rule (r) |
The Code of Civil Procedure, 1908
|
ADC (L.A.), Khulna =VS= Md. Kayem Ali | 15 LM (AD) 493 |
Order XLIII rule 1(d) |
Maintainability of application under section 151 CPC for setting aside an
order cancelling an earlier order dismissing a Miscellaneous Case under
Order IX r. 13. The effect of an order of dismissal of the Miscellaneous
case for default is one of rejecting an application to set aside a decree
passed ex parte. It is not an order passed on merit, but ex parte. The view
taken by the High Court Division that appeal lies in both cases is correct.
This is not to say that the application under section 151 CPC is barred
under all circumstances. Since the application under section 151 in the
present case was filed 7 days after dismissal of the miscellaneous case for
default without any explanation for the delay, such application could not
be justified.
|
Abdul Kader Chowdhury vs Nurul Islam | 43 DLR (AD) 128 |
Order XLVII, rule 1 |
Bangladesh Service Rules, Part-1
|
Ministry of Law, Bangladesh =VS= Abdur Rahman Bhuiyan | 16 LM (AD) 35 |
Order XLVII, rule 1 |
Review– Subject to the law and the practice of the court, the court may,
either of its own motion or on the application of a party to a proceeding,
review it's judgment or order in a Civil proceeding on grounds similar to
those mentioned in Order XLVII, rule 1 of the Code of Civil Procedure and
in a Criminal Proceeding on the ground on an error apparent on the face of
the record."
|
Major Md. Bazlul Huda (Artillery) =VS= The State | 10 LM (AD) 581 |
Order XLVII Rule 1 |
Limitation Act, 1908
|
Ministry of Law, Bangladesh =VS= Md. Touhidul Islam | 15 LM (AD) 228 |
Order XLVII rule 1 |
The matter of rate of conversion of US dollar into Bangladesh currency was
not argued at the time of hearing of the appeals. The matter cannot be
decided without hearing the parties afresh. This court's judgment is
therefore not amenable to review on this score. It will be an appeal in
disguise if a fresh argument is entertained. Our omission to allow rate of
conversion on the date of payment seems to be partly circumstantial and
partly deliberate. An appeal before this Court on the specific point of
rate of conversion would have brought the issue in a sharp focus and we
could have given our thoughts to it. This is the circumstantial part. The
deliberate part is that even in the Table produced by the learned Counsel
for the petitioner at the hearing of the two appeals it was not indicated
that the rate of conversion as on 1-7-77, shown in the Table, was only
tentative and that a further amount in Bangladesh currency would be due if
the rate.of conversion on the date of payment was ordered. When the
petitioner is unmindful of Article 28, a court of law has no independent
duty to enforce Article 28, like section 3 of the Limitation Act. If an
applicant wants enforcement of Article 28 and any contract in that behalf
it has to ask for it.
|
Bangladesh Shilpa Rin Songstha vs Haque Brother (Carbide) Ltd. | 46 DLR (AD) 39 |
Order XLVII rule 1 |
A review was never meant and allowed to be utilised as another opportunity for rehearing the matter which is already closed by a final judgment. Nurul Hussain vs Government of the People's Republic of Bangladsh 49 DLR (AD) 108. |
Nurul Hussain vs Government of the People's Republic of Bangladsh | 49 DLR (AD) 108 |
Order XLVII rule 1 |
Unless a prayer for review is based on the grounds mentioned, the Court will not sit on the matter again for a rehearing or further hearing which is already concluded by decision. Fazle Karim and others vs Government of Bangladesh 48 DLR (AD) 178. |
Fazle Karim and others vs Government of Bangladesh | 48 DLR (AD) 178 |
Order XLVII rule 1 |
Review may be granted only for sufficient grounds akin to those of Order XLVII rule 1 of the Code. To permit a review on the ground claimed by the petitioners will amount to rehearing of the matter and our sitting on appeal over our own judgment which is not permissible in law. Abul Hossain and 3 others vs Bangladesh represented by the Secretary, Ministry of Land and others 51 DLR (AD) 116. |
Abul Hossain and 3 others vs Bangladesh represented by the Secretary, Ministry of Land and others | 51 DLR (AD) 116 |
Order XLVII rule 1 |
A wrong decision on interpretation of certain provision of law or principle laid down in a decision relied upon by a court are no grounds for review. Zenith Packages Limited vs Member Labour Appellate Tribunal Dhaka and others 52 DLR (AD) 160. |
Zenith Packages Limited vs Member Labour Appellate Tribunal Dhaka and others | 52 DLR (AD) 160 |
Order XLVII rule 1 |
The High Court Division does not appear to have committed any error of law by not giving a chance to the petitioner to try its luck once again on the plea of discovery of additional evidence. Islamic Foundation Bangladesh vs Firoz Alam and others 53 DLR (AD) 48. |
Islamic Foundation Bangladesh vs Firoz Alam and others | 53 DLR (AD) 48 |
Order XLVII, rule 1 |
The Code of Civil Procedure, 1908
|
Mozzammel Haque(Md.) =VS= Md. Abdus Salam | 4 LM (AD) 275 |
Order XLVII, rule 1 |
The Code of Civil Procedure, 1908
|
Juhaque Ali (Md.) =VS= Government of Bangladesh | 4 LM (AD) 266 |
Order XLVII, rule 1 |
The Code of Civil Procedure, 1908
|
Jalalabad Co-operative Housing Society Ltd.=VS=Mst. Roushan Jahan | 4 LM (AD) 261 |
Order XLVII |
The Code of Civil Procedure, 1908
|
Abdul Wadud Mia (Md.) =VS= Najibunnessa | 4 LM (AD) 11 |
Order XLVII, Rule 1 |
The Code of Civil Procedure, 1908
|
GM, Postal Insurance Eastern Region =VS= A.B.M. Abu Taher | 4 LM (AD) 118 |
Order XLVII, Rule 1(1) |
The Code of Civil Procedure, 1908
|
Suza Uddoula & others =VS= Arshad Hossain Haider & others | 1 LM (AD) 170 |
Order XLVII Rule 1 |
Review–
|
Abdur Rahman =VS= Moti Lal Chowdhury | 6 LM (AD) 227 |
Order XLVII Rule 4 (2) |
An application for review and rule 4(2) of Order XLVII provides that no
application for review shall be granted unless notice of the application
has been served upon the opposite party.
|
Md. Mintu Chowdhury -Vs.- Khurshid Nayeem and others | 6 ALR (AD) 184 |
Order XLVII, Rule 1(1) |
The Code of Civil Procedure, 1908
|
IUBAT =VS= Mohammad Ismail | 9 LM (AD) 568 |
Section 115 |
Code of Civil Procedure, 1908
|
Razzak Bepari =VS= Entajuddin | 16 LM (AD) 649 |