In a suit for partition constructive possession is enough and possession of one co-sharer amounts of possession of all the co-sharers of the suit holding.
A party may be considered a necessary party if the following two conditions are satisfied. Firstly; there must be right to some relief against him in respect of the matter involved in the suit and secondly; his presence should be necessary in order to enable the court effectively and completely to adjudicate upon and settle the question involved in the suit. Bankim Chandra Bala -Vs.- Abu Sayed and others. (Civil) 2019 ALR (HCD) Online 334 ....View Full Judgment

Order 1 Rule 11 of the CPC this section does not authorize the Court to allow a third party to conduct a suit on behalf of an absent party without special authorization.
The High Court Division held that in the instant case the pre-emptor opposite party Dibdas Baidda alias Bairagi filed the Miscellaneous Case being No. 17 of 1995 against the pre-emptee-petitioner and others under Section 96 of the State Acquisition and Tenancy Act for pre-emption of the case jote but he did not come to the Court to depose to substantiate his case rather his son namely Nilkanto Baudda Das examined without any authorization ac-corded by the concerned Court which is violative of order 1, Rule 11 of the Code of Civil Procedure and as such his deposition is nullity and consequently treating the case as not substantiated. Consequently, the High Court Division finds substance in the submission of the learned Advocate for the petitioner. Resultantly, the Rule is made absolute. Fazilatun Nessa Begum-Vs.-Dibdas Baidda alias Bairagi and others (Civil) 2019 ALR (HCD) Online 357 ....View Full Judgment

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.

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

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.

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.

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

Trade Mark Act, 2009; Section 2(12), 100
Trade Mark Rules, 2015 Rule 10, 14, 15 and 50(1)
Supreme Court of Bangladesh (High Court Division) Rules, 1973
Constitution of the People’s Republic of Bangladesh; Article 107(1)
Code of Civil Procedure Order XLI Rule 1, Order XLIII Rule 2
Limitation Act, 1908 (1st Schedule) Section 5, 29(2) and Article 156
Since Bangladesh Supreme Court (High Court Division) Rules, 1973 does not prescribe any time limit for preferring appeal before the High Court Division against the order passed by the Registrar under the Act, 2009 as such, the time frame as prescribed in Rule 50(1) of the Rules of 2015 is applicable. ...Kazi Md. Kamrul Islam Vs. Registrar, Dep. of PDTM & ors, (Civil), 18 SCOB [2023] HCD 1 ....View Full Judgment

The Code of Civil Procedure
Order I Rule 10
Artha Rin Adalat Ain, 2003
Section 6(5)
There is no provision in the Artha Rin Adalat Ain, 2003 which debars a person adversely affected by the decision in an Artha Rin Suit from being added as a party to the suit–– It appears that the appellant-developer of the Civil Appeal No. 176 of 2011 has been adversely affected by the judgment and order dated 19-01-2011 passed by the High Court Division making the rule absolute so far as it relates to setting aside of the Order No. 49 dated 19-01-2009 passed by the respondent No. 2 in Artha Rin Suit No. 7 of 2008 without passing any necessary order for making it as an added party in the suit in the category of defendant. There is no provision in the Artha Rin Adalat Ain, 2003 which debars a person adversely affected by the decision in an Artha Rin Suit from being added as a party to the suit. Appellate Division finds substance in the arguments put forward by the learned Senior Advocate for the appellant in Civil Appeal No. 176 of 2011. .....One Bank Ltd. =VS= Chaya Developer (Pvt.) Ltd., (Civil), 2023(1) [14 LM (AD) 482] ....View Full Judgment

Though there is no clear provision mentioning the word ‘transposition’ but order I rule 10(2) of the Code of Civil Procedure enables the courts to make such transposition, Order I rule 10(2) has empowered the courts to strike out name of any party, either plaintiff or defendant, improperly joined and also to add any persons-either as plaintiff or defendant-who ought to have been joined whether as plaintiff or defendant or whose presence before the court may be necessary for effectual and complete adjudication of the matter. Exercising this very power the courts can make transposition also of either of the parties of a suit or other proceeding to the other category of the parties and the courts also are doing so, and it has become a long practice now. Of course, generally, the courts will not allow transposition of defendants as plaintiffs after striking the names of the original plaintiffs or after transposing them as defendants. But in appropriate facts and circumstances-as these are in the present case-the courts should not be reluctant to make such transposition of the parties for the ends of justice or to prevent abuse of the process of the court. …Mrs. Ruksana Huq & ors Vs A. K. Fayazul Huq & ors, (Civil), 6 SCOB [2016] AD 61 ....View Full Judgment

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

Co-plaintiffs, interest , the Waqf Estate in the suit property; The applicant Md. Hossen and others, who had filed the application under Order 1 Rule 10 of the Code of Civil Procedure, were not entitled to be added as plaintiffs as heirs of deceased plaintiff No. 2 Haji Badsha Miah. Because, the admitted position is that, the suit property has been claimed (in the plaint) as the property of Abdul Nabi Malum Waqf Estate, not personal property of Haji Badsha Miah. ...Md. Hossen & ors. Vs. Haji shamsunnahar Begum & ors., (Civil), 12 SCOB [2019] HCD 215
As such, the added plaintiff-petitioners have denied the interest of the Waqf Estate in the suit property by asserting their personal right in the same. Hence, their interest in the suit property is in conflict with that of the (surviving) plaintiff who claims herself as the sole Motwali (Manager) of the Waqf Estate, since another Motwali (plaintiff No. 2) has died. ...Md. Hossen & ors. Vs. Haji shamsunnahar Begum & ors., (Civil), 12 SCOB [2019] HCD 215
Therefore, the interest claimed by the petitioner being in clear conflict with that claimed by the plaintiff, these Md. Hossen and 4 other are not entitled to be added as coplaintiffs. ...Md. Hossen & ors. Vs. Haji shamsunnahar Begum & ors., (Civil), 12 SCOB [2019] HCD 215 ....View Full Judgment

Abandoned Buildings (Supplementary Provisions) Ordinance, 1985
Sections 7, 10 r/w
Code of Civil Procedure, 1908
Order 1 Rule 10
The Court of Settlement is not a Civil Court and its authority is to determine as to whether the disputed property is abandoned property or not. The provisions of the Code of Civil Procedure should be applicable in respect of summoning and enforcing the attendance of any person and examining him on oath; requiring the discovery and production of any document; requiring evidence on affidavit; requisitioning any public record or copy there of from any office; and issuing commissions for the examination of witnesses or documents. .....Raihana Shafi =VS= First Court of Settlement, Dhaka, (Civil), 2024(1) [16 LM (AD) 517] ....View Full Judgment

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

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

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

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.

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.

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.

Rule 3 of Order 23 of the Code of Civil Procedure: After the institution of the suit, it is open to the parties to compromise, adjust, or settle it by an agreement or compromise. The general principle is that all matters that can be decided in a suit can also be settled using compromise. Rule 3 of Order 23 of the Code lays down that (i) where the court is satisfied that a suit has been adjusted wholly or in part by any lawful agreement in writing and signed by the parties; or (ii) where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall record such agreement, compromise or satisfaction and pass a compromise decree accordingly. .....Sannyashi Mondal Vs. Nirmol Chandra Mondol & ors, (Civil), 19 SCOB [2024] HCD 172 ....View Full Judgment

Order 3 Rule 1 of the Code of Civil Procedure provides that any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf. The proviso thereto makes it clear that the Court can, if it so desires, direct that such appearance shall be made by the party in person. .....Sannyashi Mondal Vs. Nirmol Chandra Mondol & ors, (Civil), 19 SCOB [2024] HCD 172 ....View Full Judgment

Section 114(g) of the Evidence Act; Order 3 Rule 2 of the Code of Civil Procedure read with section 85 of the Evidence Act; Section 120 of the Evidence Act:
Husband instead of wife or wife instead of husband shall be competent witness:
Learned Advocate for the respondent strongly argued that defendant No. 1 Sirajul himself did not come before the court to depose in support of his case and adverse presumption can be drawn under section 114(g) of the Evidence Act for his non examination in the case despite being an important witness. A Power of Attorney given by defendant No. 1 to D.W. 1 through notary public bearing registration No. 135 of 2003 dated 28.06.2003 is kept in the record and under Order 3 Rule 2 of the Code of Civil Procedure read with section 85 of the Evidence Act this power of attorney bears weight. Now question arises whether D.W. 1 being wife of defendant No. 1 holds the same status of defendant No. 1 while deposing in the suit. Question of adverse presumption shall not arise if DW 1 holds the same position. Section 120 of the Evidence Act provides that husband instead of wife or wife instead of husband shall be competent witness. So according to the facts and circumstances of the instant case section 120 shall prevail over section 114(g) of the Evidence Act and the question on adverse presumption as argued does not arise. ...Sirajul Haque Howlader and ors Vs. Zulekha Begum & ors, (Civil), 17 SCOB [2023] HCD 199 ....View Full Judgment

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

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

It is mandatory upon the Court to ex-amine the serving officer to ascertain as to whether the summons were duly served, or not.
In case allegation of non-service of summons upon the defendant/ opposite-party, as the case may be, the onus is upon the plaintiff/petitioner that the summons of the suit or the case was served upon the defendant/opposite-party.
The High Court Division held that the rule 19 provides for examination of serving officer with an endorsement that the Court shall verify from the deposition of serving officer whether the summons were served or not in a mandatory form. The word shall makes it clear as appearing in rule 19 of Order V that it is mandatory upon the Court to examine the serving officer to ascertain as to whether the summons were duly served, or not. There is no doubt summons may be served upon an adult member of the defendant family under the provisions of rule 15 of Order V of the Code as has been done in the instant case but both the courts below concurrently dis-believed that the summons was duly served upon the defendant. In case of allegation of non-service of summons upon the defendant/ opposite-party, as the case may be, the onus is upon the plaintiff/petitioner that the summons of the suit or the case was served upon the defendant/opposite-party. Moreover order V, rule 12 of the Code has provided that whenever it is practicable, service of summons shall be made upon the defendant herein opposite-party in person unless he has an agent empowered to accept the service, in which case service on such agent shall be sufficient. Therefore High Court Division sitting on a revisional jurisdiction without any important question of law cannot interfere into such reasonable findings of the courts below. Moriom Bewa wife of late Abdul Jabbar of Village- Nakshasa, Police Station- Poba, District- Rajshahi. -Vs.- Md. Ahshan Prang son of late Fazullah Prang and 7(seven) others (Civil) 2019 ALR (HCD) Online 189 ....View Full Judgment

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

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.

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.

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.

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

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.
The application under Order IX, rule 13 was filed after a long period of almost 31 years. On the prayer of the appellant, his name has been mutated in the suit Khatian in 1983-84 and no objection was raised by the respondent in the mutation proceeding, correction of mutation order in 1996-97 in another Miscellaneous Case.
The learned Judge of the Single Bench of the High Court Division without issuing the Rule and without giving any independent and legal findings affirmed that the judgment of the lower appellate Court which is an error of law.
The learned Court of Appeal as well as the High Court Division ignored all those materials, evidence on record and hence the impugned judgment suffers from gross legal infirmity and is liable to be set aside. The impugned judgment and order as well as the judgment passed by the appellate Court below are hereby set aside and the judgment and order passed by the trial Court is restored. ...Monira Khatun @ Monira Mondal =VS= Ashok Sen, (Civil), 2021(2) [11 LM (AD) 582] ....View Full Judgment

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.
It is the settled principle that if any party adduce evidence beyond the pleadings is liable to be ignored. Parties cannot be permitted to lead evidence beyond their pleadings and leading of the evidence beyond the pleadings is unwarranted and conclusion based on such evidence cannot be approved. Normally, evidence beyond pleadings cannot be considered by the Court. ...Agrani Bank Ltd., Dhaka =VS= Md. Abdus Sobhan, (Civil), 2021(1) [10 LM (AD) 316] ....View Full Judgment

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

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.

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.

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.

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.

Code of Civil Procedure, 1908
Order VI Rule 5 r/w
Transfer of Property Act [IV of 1882]
Section 106 —Monthly rent could not be defrayed from the unpaid amount of the loan. Hence the defendant was rightly found to be a defaulter.
The Appellate Division observed that it is clear from the terms of the agreements that out of the sums of money paid by the defendant to the plaintiff, a definite specified amount was to be treated as advance rent, which would be adjusted over the total length of the tenancy. The remainder of the money paid would be loan, to be repaid. Clearly there is a difference between adjusting the rent from advance money and repaying loan from money received by way of rent, or from other source. Obviously there is no stipulation as to the time frame within which the loan would be repaid and indeed there will be consequences for non-payment of the loan amount. But Appellate Division does not finds any agreement that the loan amount would be adjusted against rent. The plain-tiff agreed to repay the loan money from his source of income, including rent which he would receive. The record shows that even after deduction of advance from the rent the plaintiff would receive Tk. 5000/-per month as part of the monthly rental. Also he was expecting to receive further sums for the additional space on the ground floor which would be extra income for him and would be used to repay his loan. Hence, monthly rent could not be defrayed from the unpaid amount of the loan. The plaintiff would repay the loan from his in-come from whatever source. Appellate Di-vision is of the view that the defendant was rightly found to be a defaulter.
A.K.M. Mahbubul Haque -Vs.- Chowd-hury Motinul Haider (Civil) 9 ALR (AD) 213-216

Chapter-1, Rule 19 of the Civil Rules and Orders (CRO) read with Order VI, Rule 15 of the Code of Civil Procedure and Section 34 (1) of the Artha Rin Adalat Act, 2003:
Filing the application under section 34 (1) of the Act, 2003 civil detention of judgment debtor is sought for by the decree holder applicant. As such, the Adalat has to dispose of it awarding civil detention or rejecting the prayer. Hence, the applicant needs to substantiate the facts in the application for determination by the Adalat. Thus, considering facts of the application, judicial determination has to make by the Adalat awarding civil imprisonment or not. Therefore, the Bank requires to file the application in accordance with Chapter-1, Rule 19 of the Civil Rules and Orders (CRO) read with Order VI Rule 15 of the Code of Civil Procedure. But from the application (Annexure-C and C1) filed by the decree holder Bank, we do not find this compliance. In the circumstances, we are of the view that without verification or affidavit, putting signature at the top of the application alone is not enough to consider an application under section 34(1) of the Act, 2003. ...Md. Jahirul Hoque Vs. Judge, Artha Rin Adalat, Chattogram & ors, (Civil), 17 SCOB [2023] HCD 20 ....View Full Judgment

Code of Civil Procedure, 1908
Order VI, rule 17 r/w
Specific Relief Act
Section 42
Where the plaintiffs are out of possession, the “further relief” would be recovery of possession and the suit for declaration of title without prayer for recovery of possession is hit by the proviso to section 42 of the Specific Relief Act–– Appellate Division has no hesitation to agree with the findings of the trial court as well as the High Court Division that since the plaintiffs have failed to prove their possession in the suit land, the present suit for declaration simpliciter without a prayer for consequential relief is hit by proviso to section 42 of the Specific Relief Act and as such the present suit is not maintainable.
It is a cardinal principle of law that plaintiff has to prove his own case and he cannot be entitled to get a decree on the weakness of the defendant(s), if any. The burden lies on the plaintiff to prove his case and he must succeed on his own strength only and not at the weakness of the adversary. Appellate Division is of the opinion that the High Court Division did not commit any error of law in making the Rule absolute setting aside the judgment and decree of the court of appeal below. The appeal is dismissed without any order as to costs. .....Kabir Ahmed =VS= Mahohar Ali, (Civil), 2023(1) [14 LM (AD) 57] ....View Full Judgment

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

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

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

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

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

Bengal Tenancy Act
Section 103(B)
State Acquisition and Tenancy Act
Section 144A r/w
Code of Civil Procedure
Order 6 Rule 7 r/w
Registration Act
Section 17(2)(VI)
Declaration of title and confirmation of possession over the suit land— Every entry in the Khatians, as the case may be, shall be presumed to be correct until it is proved by evidence to be incorrect— Presumption of correctness the record— There is conflict between the CS and RS khatians the RS khatian will prevail over the former— Both the provisions as contemplated in Section 103(B) of the Bengal Tenancy Act (in respect of CS Khatian) and Section 144A of the State Acquisition and Tenancy Act (in respect of RS Khatian) are rebuttable, that is to say, every entry in the Khatians, as the case may be, shall be presumed to be correct until it is proved by evidence to be incorrect. .....Md. Abdul Hanif @ Abu Hanif =VS= Bhupen Nath, (Civil), 2024(1) [16 LM (AD) 617] ....View Full Judgment

The Specific Relief Act
Section 42 r/w
The Code of Civil Procedure
Order VI, Rule 17 r/w
The Limitation Act
Article 142
Amendment of Plain– It is now settled that as to the question of limitation there are two ways in which the same may arise . “First, whether the claim to be included was barred on the date of the institution of the suit. Secondly, whether the claim is barred on the date of the prayer for amendment. On the first case, the prayer for amendment can not be allowed as it is barred on the date of institution of the suit and on the second case, the prayer can be allowed.” The suit was instituted on 7th March, 1964 and though the amendment of the plaint was made on 19th April, 1977, as soon as the prayer for amendment was allowed, the said amendment related back to the date of institution of the suit, as if those statements in the amendment petition were made in the original plaint. In that view of the matter, the learned Counsel is absolutely wrong in his contention that the amendment is barred by limitation. Article 142 of the Limitation Act applies when a plaintiff set up a case of possession followed by dispossession. In such a case the onus is on the plaintiff to prove that he was in possession within 12 years from the date of the institution of the suit. …Monowara Begum(Most.) =VS= Malanch Bibi, [8 LM (AD) 102] ....View Full Judgment

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

The question of resjudicata and limitation raised in the application for rejecting the plaint and are mixed question of law and fact which can only be decided at trial on taking evidence.
The High Court Division observed that from the plain reading of the instant suit the High Court Division finds that the same clearly discloses the cause of action; the relief claimed is not undervalued; the plaint was not written upon paper insufficiently stamped; from the statement of the plaint it does not appear that the suit is barred by any law. The only point urged by the learned Counsel for the petitioner is that the instant suit is barred by resjudicata and also barred by limitation and the relieves claimed in the instant suit in substantially in issue in the former suit between the same parties. It has been well settled that the question of resjudicata and limitation raised in the application for rejecting the plaint and are mixed question of law and fact which can only be decided at trial on taking evidence. Md. Motaleb Hossain -Vs.- Md. Mozammel Hossain (Civil) 2019 ALR (HCD) Online 1 ....View Full Judgment

Code of Civil Procedure, 1908
Order 7 Rule 3
Specific Relief Act, 1877
Section 42
Daliluddin was literate and, therefore, his thumb impression on the solenama made the same highly doubtful–– The plaintiffs in the plaint, simply prayed for the declaration of title in respect of 3.80 acres, that is, ¼th share of total land measuring 15.20 acres but they did not seek any relief against those two registered deedsand it is not their case that those two deeds were not acted upon. Since after execution and registration of deeds dated 14.06.1937 and 30.06.1937, the title of entire property measuring 15.20 acres including the suit land had been vested in favour of four sons of Daliluddin and Serajuddin, that is, long before the alleged acquisition of title by these plaintiffs by way of inheritance, we are of the view that the plaintiffs, who claimed title in the suit land by way of inheritance, did not acquire any title in the same. .....Most. Rahela Khatun (Khuki) =VS= Abdul Majid Howlader, (Civil), 2023(2) [15 LM (AD) 510] ....View Full Judgment

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

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

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.

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.

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.

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.

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.

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.

Code of Civil Procedure, 1908
Order VII Rule III r/w
Tenancy Rules, 1954
Rules 30 and 31 —The defendant did not raise any objection as to the un-specification or vagueness of the suit land. The suit land has been clearly identified by the chauhaddis. Therefore, no vagueness or un-specification in the suit land.
It is a well settled principle of law that in a suit for permanent injunction, the prime consideration is whether the plaintiff is in exclusive possession of the suit land. It is also a settled principle of law that title can be gone into incidentally.
The suit land has been separately recorded in the two new plots mentioned above and a new khatian has been opened in the name of the plaintiff mosque. The very recording of the land of the suit plots in separate khatian in the name of the mosque and subsequent payment of rent prima facie proved that the plaintiff is in exclusive possession of the specified area of the suit land
The Appellate Division observed that from the judgment and decree of the trial Court, it appears that it considered the evidence on record and gave clear finding that the plaintiff’s witnesses proved its possession in the suit land. The trial Court also found prima facie title of the plaintiff in the suit land. From the judgment of the Appellate Court, it appears that it itself noted that the plaintiff’s witnesses, namely: PWs1, 2, 3, 4, 5, 6, 7 deposed that the plaintiff mosque is in the possession of the suit land and the defendants by cross-examining them could not extract any¬thing in their favour. In the concise statement, it has been stated that the name of the plaintiff mosque has been recorded in the recent survey and also in the field survey and no objection was raised by the defendant under rules 30 and 31 of the Tenancy Rules. In the concise statement, it has been further stated that in the revisional survey, the lands of two plots involved in the suit being plot Nos. 499 and 500, were recorded in the name of the plaintiff mosque in new Plot Nos. 780 and 819 respectively appertaining to new khatain being No. 350 and rent has been paid by the Mutualli under the new khatian which were filed before the High Court Division which conclusively proved that the plaintiff mosque is in possession in the suit land. Mrs. Sufi Khatun could not dispute the assertion made in the concise statement that the suit land has been separately recorded in the two new plots mentioned above and a new khatian has been opened in the name of the plaintiff mosque. The very recording of the land of the suit plots in separate khatian in the name of the mosque and subsequent payment of rent prima facie proved that the plaintiff is in exclusive possession of the specified area of the suit land and the plaintiff’s witnesses also clearly proved its possession in the suit land. Even if it is accepted that the plaintiff did not file any rent receipt showing payment of rent at the earliest point of time that could not nullify the oral evidence of the PWs that the plaintiff was in possession in the suit land.
Abdur Rashid -Vs.- Purba Shingha Gram Jame Masjid and others (Civil) 13 ALR (AD) 153-156

Code of Civil Procedure, 1908
Order VII Rule 4 r/w
Specific Relief Act [ I of 1872]
Section 42 —In reversing the findings of the final Court of facts, the revisional Court must identify the evidence which has been misread or not considered by the appellate Court.
The Appellate Division held that in the instant case the High Court Division has not adverted to any evidence or materials which has been misread or not considered by the appellate Court and also there is no suggestion that the appellate Court misconceived any provision of law. It is an established principle that in reversing the findings of the final Court of facts, the revisional Court must identify the evidence which has been misread or not considered by the appellate Court. This having not been done, the impugned judgement cannot be said to be in accordance with law and settled legal principles.
Kanchan Mallik and others -Vs.- Saleha Begum and others (Civil) 9 ALR (AD) 115-118

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

The Code of Civil Procedure, 1908
Order VII, rule 11
The Specific Relief Act, 1877
Section 42
After granting of "probate" cannot be looked into by any other civil court other than the court having competent jurisdiction ensured by the statue– The probate court alone has exclusive jurisdiction and the civil Court on original side does not have jurisdiction even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix once the probate is granted. In the instant case the suit instituted by the plaintiff was for declaration under section 42 of the Specific Relief Act for declaring the Will forged, fraudulent invalid etc, such step of the plaintiff is misconceived because so long the probate stands, the plaintiff is not entitled to any legal character or any right to property as required by section 42 of the Specific Relief Act. The Court of Joint District Judge, was to therefore incompetent to proceed with the hearing and determining the present suit. A suit filed in a Court incompetent under the provision of an Act is not maintainable. When the suit is not maintainable it is nothing but a futile exercise which should not be a allowed to proceed with. As such the trial Court as well as the High Court Division committed serious error of law in rejecting the application under Order VII, rule 11 of the Code of Civil Procedure. .....Gita Sen =VS= Md Rafiqul Islam, (Civil), 2022(2) [13 LM (AD) 49] ....View Full Judgment

The Code of Civil Procedure, 1908
Order VII, Rule 11 r/w
Registration (Amendment) Act
Section 17A and
Specific Relief (Amendment) Act
Section 21A
The maintainability of the suit in view of the provisions of section 17A of the Registration (Amendment) Act and section 21A of the Specific Relief (Amendment) Act could not be decided in an application for rejection of plaint without taking evidence–– Appellate Division finds from the order of the trial Court as well as the plaint that the suit was filed with two prayers. Firstly, for a direction upon defendant No. 1 to execute a deed in respect of the land described in the schedule, failing which a direction that the property is liable to be registered; and secondly, seeking a direction that the registered heba-bil-awaz [14]No. 5168 dated 10.07.2006 is inoperative. The trial Court observed that the two claims of the plaintiff cannot be decided without taking evidence. ––The maintainability of the suit in view of the provisions of section 17A of the Registration (Amendment) Act and section 21A of the Specific Relief (Amendment) Act could not be decided in an application for rejection of plaint without taking evidence. This Division is of the view that the application under Order VII, Rule 11 of the Code was rightly rejected and no illegality has been committed by the High Court Division in upholding the order of the trial Court. .....Saifuddin Ahmed =VS= Dr. Hosne Ara Begum @Golap, (Civil), 2023(1) [14 LM (AD) 183] ....View Full Judgment

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

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

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

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

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

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

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

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

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

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

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

Requirement of law is that the property should be identified by boundaries or numbers. When the plots are identified by numbers, boundaries are not necessary. The identifiable plot numbers having been given with total quantum of land against each plot in the schedule of plaint, there is no difficulty in identifying land of the plots. ...Dulal Krishna Basu Vs. Fakir Ziauddin and others, (Civil), 2 SCOB [2015] HCD 44 ....View Full Judgment

The trial Court can exercise the power under Order 7 Rule 11 of the Code of Civil Procedure at any stage of the suit before registering the plaint or after issuing summons to the defendants at any time before the conclusion of the trial. ...Rokeya Begum Bina & ors Vs. Habib Ahsan & ors, (Civil), 9 SCOB [2017] HCD 127 ....View Full Judgment

For the purposes of deciding an application under clauses (a) and (b) of Order 7 Rule 11 of the Code, the averments in the plaint are germane; the pleas taken by the defendants in the written statement would be wholly irrelevant. ...Rokeya Begum Bina & ors Vs. Habib Ahsan & ors, (Civil), 9 SCOB [2017] HCD 127 ....View Full Judgment

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

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

The Code of Civil Procedure, 1908
Order 7, Rule 11
The Succession Act, 1925
Section 213 r/w sec. 57, 58
Mohammedan law
Section 117
It is now well settled that when on the face of the plaint, it is found that the suit is barred by any law or is foredoomed and if it is allowed to be proceeded with, it will amount to an abuse of the process of the Court, the Court is empowered to reject the plaint in exercising its inherent power.
The High Court Division without considering the pertinent legal issue that the provisions of Succession Act and Mohammedan law the probate case is not maintainable, passed the impugned judgment simply holding that without taking evidence, the dispute between the parties cannot be resolved, and as such committed serious error of law and the impugned judgment is liable to be set aside. .....Jahanara Begum =VS= Hazi Nizamuddin, (Civil), 2024(1) [16 LM (AD) 582] ....View Full Judgment

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

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

The State Acquisition and Tenancy Act, 1950
Section 96(3), 96(4)
The Code of Civil Procedure
Order VII, rule 11
Pre-emption– Section 96(3) before it was amended that there was provision even after filing the application for pre-emption for the Court “…after holding an inquiry as to the actual amounts of the consideration money and rent paid and the expenses incurred by the transferee...” to direct “the applicant or applicants to deposit a further sum, if necessary, within such period as it thinks reasonable...”
There was power given to the Court to hold an inquiry regarding actual amounts of consideration money etc. and to allow further amounts to be deposited within a certain period after filing the application. After the amendment of the law there is no such power given to the Court to hold any inquiry regarding consideration money or allow time or opportunity to deposit in Court any amount in respect of shortfall of consideration, compensation, and interest.
The court cannot inquire into what consideration was paid and there is no provision to allow the pre-emptor to deposit any shortfall in consideration money, compensation, or interest. The purchaser is required only to give details of payments since the date of sale, i.e. in respect of rent, annulling encumbrances or making improvement.
The impugned judgement and order passed by the High Court Division is set aside and the order of the District Judge, Kushtia dated 29.02.2012 is hereby upheld and the application filed by the pre-emptee under Order VII, rule 11 is allowed. The application under section 96 of the State Acquisition and Tenancy Act for pre-emption is rejected. ...Mosharaf Hossain(Md.) =VS= Mst. Rekha Khatun, [10 LM (AD) 91] ....View Full Judgment

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.
The Appellate Division has considered that the cause of action was raised in the earlier suit and decided on 01.03.2001 and nothing having been done to challenge the judgement and decree, the subsequent suit filed in 2010 is barred by limitation. In this regard, the Appellate Division finds that the instant suit has been filed on a cause of action which allegedly arose on transfer of the suit land to the present defendants by registered deed in the year 2009. The plaintiffs therefore, claim that there is a fresh cause of action. 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. In view of the above discussion, the Appellate Di-vision does not find any merit in the instant civil petition for leave to appeal which is accordingly, dismissed. Md. Foyez Ahmed Jewel and others -Vs.- Md. Rabiul Munsi and others (Civil) 2019 ALR (AD) Online 4 ....View Full Judgment

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

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.

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

Service of summons on a male number of the family would not constitute valid service unless the report of the process server contains a statement that there was no likelihood or the defendant who was absent at the time of service being not found at his residence with a reasonable time. Moriom Bewa wife of late Abdul Jabbar of Village- Nakshasa, Police Station- Poba, District- Rajshahi. -Vs.- Md. Ahshan Prang son of late Fazullah Prang and 7(seven) others (Civil) 2019 ALR (HCD) Online 189 ....View Full Judgment

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

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

The Code of Civil Procedure, 1908
Order IX Rule 13 and Order XLIII, rule 1(d)
The Limitation Act
Section 14
When the earlier suit was decreed ex-parte, the present plaintiffs had the choice of one of three avenues: to file an application under Order IX rule 13 of the Code, to file an appeal or to file a separate suit. In this case the present plaintiffs chose to file a miscellaneous case under Order IX rule 13 of the Code.
It was held that dismissal of Miscellaneous Case No.111 of 1981 was appealable under Order XLIII, rule 1(d), accordingly Miscellaneous Case No.119 of 1982 was rejected as not maintainable. In spite of the finding that the application under Order IX, rule 9 did not lie, the present plaintiffs filed revision before the learned District Judge, which having been dismissed, they filed Civil Revision No.1033 of 1987 before the High Court Division. It cannot be said that the present plaintiffs were not aware that the dismissal of Miscellaneous Case No.111 of 1981 under Order IX, rule 13 was appealable. The present suit was filed on 04.09.2008, about 26 years after Miscellaneous Case No.111 of 1981 under Order IX, rule 13 of the Code was dismissed for default. It is abundantly clear that the present plaintiffs have acted with mala fide from the very beginning. The present suit is hopelessly barred by limitation as well as the principles of res-judicate. ...Syed Rafiqul Islam =VS= A.K.M. Aminul Haque, (Civil), 2021(1) [10 LM (AD) 69] ....View Full Judgment

Limitation Act, 1908
Section 15 And
Code of Civil Procedure, 1908
Order IX rule 13
Pendency of a case for setting aside an ex-parte decree cannot extend the period of limitation for filing of execution case:
Application for execution of a final decree or order is to be made within 3 (three) years from the date mentioned in 2nd Column of Article 182 of the Limitation Act subject to some exceptions as detailed in the 3rd Column read with provisions of section 15 of the Act inasmuch as Article 182 makes no provision for fresh limitation from a final order passed on an application under Order IX rule 13 of the Code. In other words if no stay order or injunction is passed staying the operation of the decree or order under section 15 or no situation arises as per the 3rd Column of Article 182 the decree or order would keep open for execution and time would run from the date of final decree or order. A bare reading of Article 182 of the limitation Act also suggests that an application under order IX rule 13 of the code does not come within the meaning of applications mentioned in clause 5 of column 3 of Article 182 of the Limitation Act to save limitation. Accordingly, pendency of a case under Order IX rule 13 of the Code of Civil Procedure for setting aside an ex-parte decree cannot extend the period of limitation for filing execution case. ...Md. Mohitur Rohman Chy & ors Vs. Md. Abdul Kuddus Miah & ors, (Civil), 9 SCOB [2017] HCD 163 ....View Full Judgment

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

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.

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

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

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.

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.

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 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 (Civil) 10 ALR (AD) 241-248

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

Ex-parte decree –
An ex-parte decree will be set aside if it is found that there was no service of summons on the defendant– Process server most examine by the Court, but in the instant case the process server was not adduced to examine by the Court, even then, the trial Court found from record that there are some anomalies in the serving of the summons– In a suit for setting aside the ex-parte decree, in a case of service by hanging because of alleged refusal by the plaintiff appellant to receive notices, where the names and addresses of the mukabila witnesses were not noted in the service reports by the process server, it is the settled principles of law from the long line of catena, obviously process server most examine by the Court, but in the instant case the process server was not adduced to examine by the Court, even then, the trial Court found from record that there are some anomalies in the serving of the summons, such facts would lead to disbelieve the service which is devoid of the essential information as requires by law. But the learned Single Judge of the High Court Division failed to appreciate the above legal proposition. Thus, committed serious error of law point occasioning failure of justice. The judgment of the High Court Division is hereby set aside. Directed to conclude the trial as early as possible preferably within 1(one) year from the date of receipt of this judgment positively. ...Azirun Nessa(Most.) =VS= Sree Arun Chandra Biswas, (Civil), 2021(1) [10 LM (AD) 332] ....View Full Judgment

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

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

The Employment of Labour (Standing Orders) Act, 1965
Section 25(c) & (d) r/w
The Code of Civil Procedure, 1908
Order IX, Rule 4
Restoration– The Employment of Labour (Standing Orders) Act, 1965 is a special law and the Labour Court not being a civil court can not take recourse to and apply the provisions under Order 9, Rule 4 of the Code of Civil Procedure for restoration of any proceeding before it in terms of the said Order and Rule if the proceeding before it is dismissed for default. But it (Labour Court) can certainly, in a just and appropriate case, interfere with its own order of dismissal for default in following the provisions of the said law in substance to prevent any miscarriage of justice. .....Crescent Jute Mills Co. Ltd =VS= Chairman, Labour Court, [4 LM (AD) 101] ....View Full Judgment

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

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

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

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.
Other Class Suit No. 104 of 2001 of the Second Court of the then Subordinate Judge, Second Court, Chittagong, is restored to its original file and number. The trial Court is directed to dispose of the suit as expeditiously as possible preferably within 6(six) months from the date of receipt of a copy of the judgment. ...Deputy Commissioner(DC), Chittagong =VS= Md. Karim, (Civil), 2021(2) [11 LM (AD) 19] ....View Full Judgment

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

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

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

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.

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.

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.

Whether the petitioners are persons under the said Manjurul Alam and others being a question of fact is to be decided on evidence relating to transfer of title. Such question of fact cannot be decided on an application under Order VII, rule 11 of the Code. Besides, the land in CS Plots Number 85 and 69 was not the subject matter of the previous suit, but included in the present suit. We do not think that the learned trial Judge committed any error of law in rejecting the petitioner’s application. ...Tapan Chowdhury & ors Vs. Bangladesh & ors, (Civil), 18 SCOB [2023] HCD 49 ....View Full Judgment

Code of Civil Procedure, 1908
Section 11
Constitution of Bangladesh, 1972
Article 111
Res judicata— Appellate Division hold that since the right and title of the respondent No.5 in the disputed land has not been found by the High Court Division in Writ Petitions No.11099 of 2006 and 3030 of 2005 filed at the instance of the respondent No.5, subsequent suit being No.373 of 2005 instituted by the respondent No.5 for declaration of title so far as it relates to the disputed plot claimed by the appellant in Writ Petition No.7817 of 2009 is barred by the principle of res judicata. —The respondents No.1-4 are hereby directed to hand over the possession of plot No.5, Road No.29, Gulshan Residential Area, Dhaka within 60(sixty) days in favour of the present appellant from the date of receipt of this order. The respondents No.1-4 are also directed to complete all legal formalities including execution of all legal deeds and registration in favour of the appellant in accordance with law. .....Aziz Ara Rahman =VS= RAJUK, (Civil), 2024(1) [16 LM (AD) 623] ....View Full Judgment

Objection regarding rejection of plaint to be raised before joining the issues: Even in case of proceedings of a suit without prior notice, where such notice is legally required, the objection must be raised before fling of written statement by the defendant concern. After joining the issues by filing written statement, settlement of all issues and completion of hearing, a plaint cannot be rejected under Order VII, rule 11 of the Code especially when two other suits between the parties on the selfsame subject matter are pending in the same court and one of them is fixed for simultaneous hearing with the present suit. ...Chattogram Port Authority Vs. Md. Mehedi Hasan, (Civil), 17 SCOB [2023] HCD 34 ....View Full Judgment

Objection regarding rejection of plaint to be raised before joining the issues:
Even in case of proceedings of a suit without prior notice, where such notice is legally required, the objection must be raised before fling of written statement by the defendant concern. After joining the issues by filing written statement, settlement of all issues and completion of hearing, a plaint cannot be rejected under Order VII, rule 11 of the Code especially when two other suits between the parties on the selfsame subject matter are pending in the same court and one of them is fixed for simultaneous hearing with the present suit. ...Chattogram Port Authority Vs. Md. Mehedi Hasan, (Civil), 17 SCOB [2023] HCD 34 ....View Full Judgment

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

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.

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.

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.

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.

It is a settled principle of law and as per Order XIV Rule 1 of the Code of Civil Procedure that an issue which was not taken up earlier in the Courts below, cannot be taken up at a later stage before the superior Courts. ...Syed Aynul Akhter Vs. Sanjit Kumar Bhowmik & ors, (Civil), 4 SCOB [2015] HCD 127 ....View Full Judgment

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

Code of Civil Procedure, 1908
Order XIV Rule 1
Constitution of Bangladesh, 1972
Article 111
A person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed— It is transparent that where a party claims title by adverse possession in the pleadings and the other party denies it the Court frames an issue regarding the adverse possession. But in the case in hand since the plaintiff did not assert the claim of adverse possession the defendants were not needed to deny the claim of adverse possession in the written statement. Therefore, there was no occasion to frame an issue as regards adverse possession.
It is evident that the predecessor of the defendants Abul Kashem and his wife Nurjahan Begum were in possession of the suit land before 1960. From the memos dated 27.04.1960 (Exhibits-C(1) and C(2) it is seen that the acquiring authority asked the defendant Abul Kashem and his wife Nurjahan Begum to provide the name of the co-sharers, if any in the suit property. Memo dated 22.11.1960 (Exhibit-F(1)) issued by the Dhaka WASA to Md. Abul Kashem shows that as per his application dated 09.01.1960 the authority allowed him to take water connection in his structure in the name and style Matin Restaurant, Bijoynagar situated in C.S. Plot No.129. All the aforesaid documentary evidences clearly show that the defendants’ predecessor had been in possession of the suit land long before execution of so-called lease deed by the plaintiff on 09.05.1960.
The plaintiff except himself as P.W.1 could not examine any neutral witness to corroborate his claim to the effect that the defendant’s predecessor Abul Kashem was inducted into possession of the suit land on the basis of the lease deed dated 09.05.1960. The plaintiff also could not prove that he is in possession of the suit land taking oral settlement from Hazi Md. Arif in the year 1953. —Appellate Division finds that the plaintiff did not acquire title and possession in the suit land and the defendants were never lessee under the plaintiff but the trial Court without proper appraisal of the oral as well as documentary evidence available on the record decreed the suit and while the High Court Division lawfully set aside the judgment and decree of the trial Court. The instant Civil Appeal is dismissed without any order as to costs. .....Babru Mia =VS= Mosammat Noorjahan Begum, (Civil), 2024(1) [16 LM (AD) 631] ....View Full Judgment

Issue of Law —Issue touching maintainability of Suit.
Learned advocate for the Petitioner submits that the learned Judges of the High Court Division erred in law in not considering the facts and circumstances of the case that the trial court framed the issues on 18.9.1997 and subsequently the suit was posted for peremtory hearing but the suit was Suo Moto withdrawn from the peremtory hearing without giving effect to the applications under Order 11 Rule 14 and Order 11 Rule 21 of the Code of Civil Procedure filed by the plaintiff petitioner and also without considering the ( )rder dated 10.8.2002 wherein it is noted " Benefit the learned Courts below committed error of law in passing the impugned judgment which is against the principle of natural justice and as such the same is liable to be set aside. -We do not find any substance in the points raised. The High Court Division upon correct assessment of the materials on record arrived at a correct decision. We therefore find no reason to interfere with the same.
Saiful Hoque Vs. Bangladesh House Building Finance Corporation 17 BLT (AD) 187.

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.

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.

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

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.

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

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

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

Ex parte decree—­When to be passed and extent of judgment - Before an ex parte decree is passed, the court is required to go through the records whether such a decree could be passed on the 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)

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.

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.

Partition Suit or Title Suit, Ubi Jus ibi remedium, Section 54, Order 20, Rule 18 and Order 26, Rule 13, Joint tenants;
Simply remanding back the suit for proper evaluation of the much-discussed documentary evidences, there shall not be an effective adjudication of the suit.
Since in a partition suit, a person approaches the Civil Court with a grievance of not being able to enjoy his/her property absolutely or independently or peacefully and, in responding to the plaintiff’s case, if the defendant questions the very title of the plaintiff, in that scenario, it is incumbent upon the Court to assess and determine the plaintiff’s title, right and interest in the suit land.
If the plaintiff does not make proper prayer in the plaint, the suit must not be dismissed on the said ground; rather it would be the duty of the Court to frame appropriate issue/s on the basis of the pleadings and submissions put forwarded by all the parties to the suit and proceed with the suits towards its effective disposal. ...Md. Akram Ali & ors. Vs. Khasru Miah & ors., (Civil), 14 SCOB [2020] HCD 53 ....View Full Judgment

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

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

Artha Rin Adalat Ain, 2003
Section 33(5)
The Code of Civil Procedure
Order XXI Rule 58
It seems to us, having regard to the relevant provisions, that the stage at which a claim is to be preferred under Order XXI Rule 58 is intended to be a stage before the sale has actually been held and the attachment is pending. It is open to the Court under sub-rule(2), Rule 58 to postpone the sale pending investigation of the claim. In the instant case auction has already been held at the instance of the bank itself after getting certificate under section 33(5) of the Ain. The High Court Division acted in excess of its authority in allowing claim petition preferred under Order XXI Rule 58 of the Code of Civil Procedure after the property attached was sold. .....Sonali Bank Limited =VS= Mosammat Salma Begum, (Civil), 2022(2) [13 LM (AD) 26]

Section 33(5)— ধারা ৩৩(৫)— ধারা ৩৩(৫)— আমরা মনেকরি সংশ্লিষ্ট বিধানুসারে দেওয়ানি কার্যবিধির আদেশ ২১, বিধি ৫৮ এর অধীন নিলাম বিক্রির পূর্বে এবং ক্রোক অনিষ্পন্ন অবস্থায় দাবী করা যায়। ৫৮(২) বিধির অধীন আদালত বিক্রি অনিষ্পন্ন থাকা অবস্থায় দাবীর তদন্ত বাতিল করতে পারে। এই মামলায় ৩৩(৫) ধারা অধীন সার্টিফিকেট পাওয়ার পর ব্যাংকের নিজ প্রচেষ্টায় নিলাম বিক্রি অনুষ্ঠিত হয়েছিল। হাইকোর্ট বিভাগ এখতিয়ারের বাইরে দেওয়ানি কার্যবিধির ২১ আদেশের ৫৮ বিধির অধীন দাবীর পিটিশন সম্পত্তি ক্রোক ও বিক্রয়ের পর অনুমোদন করেছিল। .....Sonali Bank Limited =VS= Mosammat Salma Begum, (Civil), 2022(2) [13 LM (AD) 26] ....View Full Judgment

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

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.

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.

Code of Civil Procedure, 1908
Order XXI, rule 49 (1), (2) and (3) r/w
English Partnership Act, 1890.
Section 23 (1), (2) and (3)
Registration Act [XVI of 1908]
Section 17(1) —The deed of dissolution was not required to be registered under the Registration Act.
Under the Partnership Act, a partner-ship has not been given any legal status. It is not a juristic person and the independent status given to the partnership firm under the Act has to be limited only for the purposes of that Act.
The Appellate Division observed that the deed of dissolution is not required to be registered under the Registration Act. br Consequently, the interest in two bighas of land was transferred to the appellants by the deed of dissolution and mutation was rightly accorded in respect of two bighas of land as per clause-4 of the deed of dissolution of partnership. For the sake of argument, even if, Annexure-D, the deed of dis¬solution of partnership is construed as an agreement, the heirs of late Noor Hossain are under obligation to execute and register a deed of transfer in favour of the appel¬lants as per terms of Annexure-‘D’. But with a view to frustrating implementation of Annexure-D, the heirs of late Noor Hossain filed the writ petition before the High Court Division. Such an attitude of the heirs of late Noor Hossain is a bizarre hoax and as such, the writ petition itself was not maintainable. The High Court Division er¬roneously came to a finding that a partnership firm has an independent legal entity. Under the Partnership Act, a partnership has not been given any legal status. It is not a juristic person and the independent status given to the partnership firm under the Act has to be limited only for the purposes of that Act.
Dine Ara Begum and others. -Vs.- Ban-gladesh Rubber Industries, a registered Partnership Firm, represented by its Managing Partner, Mr. Ifteker Hussain and others. (Civil) 12 ALR (AD) 100-108

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.

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

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.

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

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.

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.

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.

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.

The Code of Civil Procedure, 1908
Order XXI Rule 100, 102
Artha Rin Adalat Ain, 2003
Section 33(5)
After mortgaging the property in question to the bank, subsequent transfer of the same to others without the consent of mortgagee bank by the mortgagor without the view of repaying the loan is nothing, but a fraudulent act and it is by now well settled that fraud vitiates everything–– The Adalat categorically hold that property in question was mortgaged by Rina Humayun in favour of the bank in the year 1982. In view of the above, the subsequent transfer by Rina Humayun to Mohammad Mohsin, Mohammad Mohsin to Samantha Khandoker and Samantha Khandaker to the appellant of Civil Appeal No.471 of 2017 cannot be treated as valid and legal transfer and such transfer did not create any right, title and interest in favour of the appellant of Civil Appeal No.471 of 2017. After mortgaging the property in question to the bank, subsequent transfer of the same to others without the consent of mortgagee bank by the mortgagor without the view of repaying the loan is nothing, but a fraudulent act and it is by now well settled that fraud vitiates everything.–– Appellate Division has already noticed that before adducing the evidence of respective parties, the plaint including the schedule of the plaint was amended and that was accepted by the defendants. As such, the property in question which was duly mortgaged and attached by the Adalat concerned. In the execution process the said property was transferred to the decree holder bank as per provision of section 33(5) of the Artha Rin Adalat, which was subsequently purchased by the appellant (Civil Appeal No.470 of 2017) through auction. This Division finds merit in Civil Appeal No.470 of 2017 and do not find any merit in Civil Appeal No.471 of 2017. .....Syed Jobayer Hossain =VS= Judge, Artha Rin Adalat, Dhaka, (Civil), 2022(2) [13 LM (AD) 470]

Section 33(5)— সম্পত্তি ব্যাংকের নিকট বন্ধক দেওয়ার পর ঐ সম্পত্তি পরবর্তীতে ব্যাংকের সম্মতি ব্যতীত বন্ধকদাতা কর্তৃক ঋণের টাকা পরিশোধ না করেই স্থানান্তর প্রতারণা ছাড়া কিছু না এবং প্রতিষ্ঠিত নীতি হলো এই প্রতারণা সবকিছুকে অচল করে দেয়। আদালত নিশ্চিত হয়েছে যে, সম্পত্তিটি ১৯৮২ সালে রীনা হুমায়ন ব্যাংকের অনুকূলে বন্ধক দিয়েছিল। পরবর্তীতে রীনা হুমায়ন সম্পত্তিটি মোহাম্মদ মহসিন এর অনুকূলে স্থানান্তর করেছিল এবং মোহাম্মদ মহসিন অতঃপর সামান্ত খন্দকার এর নিকট এবং সামান্ত খন্দকার আপিলকারীর নিকট স্থানান্তরকে বৈধ ও আইনত স্থানান্তর বলা যায় না এবং এইরূপ স্থানান্তর আপিলকারীর অনুকূলে কোনো অধিকার, মালিকানা ও স্বার্থ সৃষ্টি করে না। সম্পত্তি ব্যাংকের নিকট বন্ধক দেওয়ার পর ঐ সম্পত্তি পরবর্তীতে ব্যাংকের সম্মতি ব্যতীত বন্ধকদাতা কর্তৃক ঋণের টাকা পরিশোধ না করেই স্থানান্তর প্রতারণা ছাড়া কিছু না এবং প্রতিষ্ঠিত নীতি হলো এই প্রতারণা সবকিছুকে অচল করে দেয়। আপীল বিভাগের মতে, পক্ষদ্বয় প্রমাণ উত্থাপন করার পূর্বে আরজি ও সিডিউল সংশোধন করা হয়েছিল এবং বিবাদী সংশোধনী গ্রহণ করেছিল। বিতর্কিত সম্পত্তিটি যথাযথভাবে বন্ধক দেওয়া হয়েছিল এবং পরবর্তীতে আদালত সংশ্লিষ্ট কর্তৃক ক্রোক করা হয়েছিল। এই প্রক্রিয়ায় বিতর্কিত সম্পত্তিটি ব্যাংকের অনুকূলে অর্থঋণ আদালত আইন, ২০০৩ এর ৩৩(৫) ধারার অধীন স্থানান্তর করা হয়েছিল যা পরবর্তীতে আপীলকারী (সিভিল আপীল নং ৪৭০/২০১৭) নিলামে ক্রয় করেছিল। আপীল বিভাগ মনে করে, সিভিল আপীল নং-৪৭০/২০১৭ এ যথেষ্ট উপযোগিতা থাকলেও ৪৭১/২০১৭ নং আপীলে কোনো উপযোগিতা ছিল না। .....Syed Jobayer Hossain =VS= Judge, Artha Rin Adalat, Dhaka, (Civil), 2022(2) [13 LM (AD) 470] ....View Full Judgment

The Code of Civil Procedure
Order XXI Rule 37 and 38 r/w
Administrative Tribunal Act, 1980
Section 4(2)
Compulsory retirement with giving all the due service benefits–– Since the Agrani Bank was not complying with the order of the Administrative Appellate Tribunal, the respondent filed Miscellaneous A.T. Case No. 8 of 2008 (Execution) under order XXI Rule 37 and 38 of the Code of Civil Procedure. Upon hearing the parties the application was allowed by order dated 17.01.2012 directing the [07]concerned authorities to pay all the dues to the respondent up to 26.10.2008, the date on which he was reinstated. This order was upheld by the Administrative Appellate Tribunal by the impugned judgement dated 12.02.2013. ––It is patently clear that Agrani Bank Limited has not complied with the earlier order passed by the Administrative Tribunal which was upheld by the Administrative Appellate Tribunal. That order, having not been challenged, is binding upon the Agrani Bank Limited. .....Agrani Bank Limited =VS= Md. Salek Uddin, (Civil), 2023(1) [14 LM (AD) 179] ....View Full Judgment

Artha Rin Adalat Ain, 2003
Sections 28/37/27 and 57
The Code of Civil Procedure, 1908
Order 21 Rule 58
Appears that Mr. Masudul Alam Chaklader, Managing Director was impleaded as judgment debtor No.2 and because of the death of the heirs the petitioner has been substituted. The petitioner's application under Order 21 Rule 58 of the Code of Civil Procedure was also rejected and their further applications under Sections 28/37/27 and 57 of the Artha Rin Adalat Ain, 2003 Ain was also rejected and the petitioner moved the High Court Division by suppression of these facts. The impugned order was acted upon in the execution case before issuance of the Rule. Considering these circumstances of the High Court Division discharged the Rule and directed the execution case to be disposed of in accordance with law. .....Nasir Hossain Chaklader =VS= Artha Rin Adalat, Dhaka, (Civil), 2022(1) [12 LM (AD) 641] ....View Full Judgment

Transfer of the Property Act
Section 108(B) r/w
State Acquisition and Tenancy Act
Section 81A
Non Agricultural Tenancy Act
Section 26A
Code of Civil Procedure, 1908
Order 21 Rule 58
Lease deed–– The lessor was entitled to get back the property after expiry of 50 years–– It appears from the lease deed that there was clear stipulation that the lessor agreed with the lessee that lease shall endure and subsist for a period of 50 years, from the 1st day of January, 1957 to 21st day of December, 2007. From that aforesaid condition of the lease and pursuant to the provision of section 108(B) of the Transfer of the Property Act, it is apparent that the lessor was entitled to get back the property after expiry of 50 years. After expiry of that 50 years tenure, the lease hold rights of the appellants have been extinguished. .....Abdul Halim Gaznabi =VS= M.M. Badsha Shirazi, (Civil), 2023(2) [15 LM (AD) 529] ....View Full Judgment

Artha Rin Adalat Ain, 2003
Section 57
The Code of Civil Procedure, 1908
Order 21 Rule 90
Auction sale– It appears that the application filed for setting aside the auction sale under Section-57 of the Ain after disposal an application filed earlier under Order 21 Rule 90 of the Code of Civil Procedure on 25.08.2005 is not entertainable and further the application filed under Section 57 of the Artha Rin Adalat Ain, 2003 is also not maintainable, in view of the fact that the judgment debtor filed earlier another application under Order 21 Rule 98 read with Section 57 of the Artha Rin Adalat Ain, 2003 for setting aside the auction sale unsuccessfully. Appellate Division does not find any merit in the application. The petition is accordingly dismissed. .....Mansur Rahman(Md.) =VS= Abdul Mannan Sardar, (Civil), 2022(1) [12 LM (AD) 571] ....View Full Judgment

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

Section 32— পিটিশনারগণ ডিক্রির অর্থের ২৫% জমা না দেওয়ায় আবেদনটি অসম্পূর্ণ ছিল। ডিক্রির অর্থ আদায়ে বন্ধকী সম্পত্তি নিলামে বিক্রয় করা হয়েছিল। এই পর্যায়ে পিটিশনার ১১.০২.২০১০ খ্রি. তারিখে দেওয়ানি কার্যবিধির আদেশ ২১, বিধি ৯০ ও ৯১ এবং অর্থঋণ আদালত আইনের ৩২ ধারার অধীন আবেদন করে বন্ধকী সম্পত্তিতে নিজের দখল নিশ্চিতের দাবী করে। আবেদনের সঙ্গে ডিক্রির অর্থ ২৫% জমা না দেওয়ায় অর্থঋণ আদালত ১৬.০২.২০১০ খ্রি. তারিখে খারিজের আদেশ দেয়। এই আদেশের বিরুদ্ধে পিটিশনার রীট দায়ের করলে আদালত রুল ইস্যু করে। ফলে প্রতীয়মান হয় যে, পিটিশনার অর্থঋণ আদালত আইনের ৩২ ধারার অধীন আবেদন করার পূর্বে নিলামে বন্ধকী সম্পত্তি বিক্রয় করায়, বিজ্ঞ বিচারক রুল খারিজ করেছিল এবং বিক্রয় সার্টিফিকেট রুল জারির পূর্বে ০৫.০৫.২০০২ খ্রি. তারিখে রুল ইস্যু করার মাধ্যমে বন্ধকী সম্পত্তির নিলাম বিক্রি কার্যকর করেছিল। সুতরাং এই পরিস্থিতিতে ডিক্রি বাস্তবায়নের মামলা বিচারাধীন থাকা অবস্থায় বন্ধকী সম্পত্তি সম্পর্কে পিটিশনারের দাবীর সুযোগ নেই। আরো প্রতিয়মান হয় যে, বন্ধকী সম্পত্তি নিলামে বিক্রয় করা হয়েছিল ১৯.০১.২০১০ খ্রি. তারিখে এবং ২০০৩ সালের আইনের ৩২ ধারায় আবেদন করা হয়েছিল ১১.০২.২০১০ খ্রি. তারিখে। নিলাম বিক্রয় সার্টিফিকেট ইস্যু করা হয়েছিল ২১.০৩.২০১০ খ্রি. তারিখে এবং রেজিস্টেশন করা হয়েছিল ২২.০৩.২০১০ খ্রি. তারিখে। ফলে বিষয়টি হাইকোর্ট বিভাগ আমলে নিয়ে ০৫.০৫.২০১০ খ্রি. তারিখে রুল জারি করেছিল। আমরা হাইকোর্ট বিভাগের সিদ্ধান্তকে সমর্থন করি। কারণ পিটিশনার বন্ধকী সম্পত্তির আসল মালিক হলে সম্পত্তির অধিকার ও মালিকানা রক্ষায় উপযুক্ত আদালতে মামলা দায়ের করতো। ফলে পিটিশনটি খারিজ করা হলো। …Mohammad Gias Uddin Chowdhury =VS= Ministry of Law, Justice & Parl. Afrs., BD, (Civil), 2020 (1) [8 LM (AD) 322] ....View Full Judgment

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

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

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

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.

The Artha Rin Adalat Ain, 2003
Section 34 (2) & (11)
The Code of Civil Procedure
Order XXI Rule 37
Exempting a woman judgment-debtor– The High Court Division observed that there was no requirement under provisions of the Artha Rin Adalat Ain, 2003 to issue show cause notice and that the provisions of Order XXI of the Code are applicable in execution cases where the prayer is for execution of a money decree. .....Mst. Sufia Khatun =VS= Artha Rin Adalat, Khulna & others, [1 LM (AD) 226]

Section 34 (2) & (11)— নারী দায়িকের অব্যহতি- হাইকোর্ট বিভাগের মতে, অর্থঋণ আদালত আইন, ২০০৩ এর অধীন কারণ দর্শানোর নোটিশ দেওয়ার কোনো বিধান নেই এবং অর্থ আদায়ের মামলা বাস্তবায়নের জন্য দেওয়ানি কার্যবিধির ২১ আদেশের বিধান প্রযোজ্য। .....Mst. Sufia Khatun =VS= Artha Rin Adalat, Khulna & others, [1 LM (AD) 226] ....View Full Judgment

The Constitution of Bangladesh, 1972
Article 102 r/w
The Code of Civil Procedure, 1908
Order XXI Rule 90
Writ petition is not maintainable– The present appellant did not challenge the judgment and decree passed by the Artha Rin Adalat nor he filed any case under Order 21 Rule 90 of the Code of Civil Procedure in the execution case challenging the auction sale. In such view of the matter the very writ petition was not maintainable. .....Mohd. Junayed Quader =VS= Artha Rin Adalat, Dhaka, [5 LM (AD) 418] ....View Full Judgment

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

CPC
Order XXI rule 97
Artha Rin Adalat Ain(VIII of 2003)
section 33(1) - The owner of the mortgaged property being a third party mortgagor, notice under section 33(1) of the Artha Rin Adalat Ain, 2003 was required to be issued upon him, which was not done in the instant case and thereby, the whole process of auction sale was illegal and without jurisdiction.
Sheikh Jarjis Hossain and others -Vs.- Agrani Bank Limited and others 5 ALR (AD)2015(1) 10

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

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

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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

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

During the course of pendency of original proceedings in the Trial Court, the Court may permit the plaintiff to withdraw the suit with liberty to file a fresh one, when there is a formal defect in the suit or for any other reason as provided, but such a right is not available to the plaintiff when there is already a judgment against him as aforesaid manner. ...Mrs. Hurun Nahar & ors Vs Mozammel Haque & ors, (Civil), 5 SCOB [2015] HCD 37 ....View Full Judgment

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

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

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.

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.

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

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

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

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.

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.

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.

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.

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.

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.

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

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.

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

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

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.

Before issuing an Order of attachment before judgment the Court must be satisfied that the defendant has been trying to frustrate the effect of the decree that might be passed against him by disposing of the property or removing it from the jurisdiction of the Court. It means that the Court must be satisfied not only to the effect that the defendant trying to dispose of the property or remove the same from its jurisdiction but also this disposal or removal is with the object of obstructing or delaying the execution of the decree that may be passed in Suit. This satisfaction, however, is to be judicial satisfaction and it must be based on some visible materials which are to be found in the Affidavit filed by the party or otherwise. But in the Impugned Order such satisfaction of the Court is totally absent, even not a single word has been written by the Court concerned why the attachment of the property before pronouncement of the judgment is necessary. In the absence of such satisfaction of the Court necessitating or warranting order of attachment has made the order wholly illegal and ineffective. ...Hazi Md. Ali Vs. Judge, Artha Rin Adalat & ors, (Civil), 3 SCOB [2015] HCD 132 ....View Full Judgment

Temporary Injunction
After institution of the suit, when it would appear to the Court that if the temporary injunction is not granted, the suit itself may be infructuous or great hardship and prejudice may cause to the party, then, in order to keep the subject matter of the suit intact or for the purpose of preserving the rights of the parties, temporary injunction may be granted for a limited period or till the disposal of the suit. The cardinal principles for granting temporary injunction are that the applicant must satisfy the Court that
(i) there is an arguable prima facie case,
(ii) balance of inconvenience is in favour of the applicant and
(iii) the applicant shall suffer irreparable loss and injury not commensurable in monetary terms unless the other party is re-strained. Topcom Holdings Limited -Vs.- Government of Bangladesh and others (St. Original) 2019 ALR (HCD) Online 86 ....View Full Judgment

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.
The High Court Division observed that exhibits 1-4 proved prima facie title of the plaintiff in the suit land. But the appellate Court failed to properly assess the evidence on record. It was also observed that the appellate Court did not take into consideration exhibit 5 which is the deed of sale and ignored the fact that the plaintiff got title to the suit property.
We find that the High Court Division has properly assessed the evidence on record, which the appellate Court had failed to do. We do not find any illegality or impropriety in the impugned judgement and order of the High Court Division. ...Zahuruddin Talukder =VS= Abdul Mannan, (Civil), 2021(1) [10 LM (AD) 88] ....View Full Judgment

Code of Civil Procedure, 1908
Order XXXIX Rule 2(3) r/w section 151
Specific Relief Act [I of 1877]
Section 55 —Where a party raises constructions in violation of interim in-junction and obstructs the right of way, the Court can order for demolishing the construction.
The Appellate Division held that disobedience of an order of injunction is a punishable offence under Rule 2(3) of Order 39 but this disobedience of an order of in-junction or status-quo is a civil contempt. Disobedience to an order of injunction or status-quo made under Rule 1 or Rule 2 by doing something for a party’s unadvantage entitles a Court under its inherent power to bring back that party to a position where it originally stood as if the order passed have not been contravened . Even if it is assumed that the Court made such order of restitution or restoration of the status-quo ante as a consequence of the finding of guilt of disobedience, if there can be such a power , there can always be ancillary to it the power to make an interim order to the said effect subject to the final determination of the case. There are cases where a party raises constructions in violation of interim injunction and obstructs the right of way, the Court can order for demolishing the construction under section 151 C.P.C. Md. Azizur Rahman Chowdhury -Vs.- Tauhiduddin Chowdhury and others (Civil) 12 ALR (AD) 143-146

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

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

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.

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.

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.

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.

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.

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.

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

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

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.

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

Order 40 Rule 1 of the Code of Civil Procedure may be invoked also in a partition suit due to “special circumstances such as danger to the property”. ...Kazi Helall Islam & ors Vs. Kazi Roksana Islam & ors, (Civil), 9 SCOB [2017] HCD 167 ....View Full Judgment

As we have mentioned before there is a primafacie apprehension of danger to the property, which is apparent under the circumstances. Moreover, since the suit land is in possession and control of the defendant-appellants it is quite probable that pending final determination of the rights of the parties, the party in possession and control might abuse such possession and control and the sisters may be deprived of their rights. Alienation of mesne-profits which in this case are primarily the rents received by the defendants from the tenants in the disputed property may also result in wastage of the property and therefore entails a source of danger of alienation of the property before final determination of the rights of the parties to the Partition Suit. Upon such considerations we feel that the Court below judiciously and by exercising its discretion very correctly granted the prayer of the plaintiffs under Order 40 Rule 1 for appointment of receiver to the suit property. ...Kazi Helall Islam & ors Vs. Kazi Roksana Islam & ors, (Civil), 9 SCOB [2017] HCD 167 ....View Full Judgment

The appellants had also submitted that the receiver is a third person and therefore he cannot be inducted into the affairs of a family dispute. Our finding upon this argument is that given that the receiver is a ‘third person’ in the literal sense, yet he is an officer of the Court and is appointed by the Court itself empowered under its discretionary power under Order 40 Rule 1 of the Code of Civil Procedure and therefore the appointment of receiver cannot be challenged only upon the ground of his being a ‘third person’ if other circumstances exist and call for his appointment under special circumstances and as long as the Court grants the prayer for appointment of receiver correctly exercising its discretion, such appointment may not be called into question. ...Kazi Helall Islam & ors Vs. Kazi Roksana Islam & ors, (Civil), 9 SCOB [2017] HCD 167 ....View Full Judgment

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

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.
In view of the nature of the evidence as adduced by the plaintiff, it appears that the conclusion arrived at by the trial Court is more acceptable. While reversing the finding of the trial Court, the High Court Division ignored those evidence, thereby, erroneously set aside the well reasoned judgment of the trial Court.
The High Court Division committed an error while deciding the first appeal in a cursory manner without meeting the requirements of Order XLI Rule 31 of the Code of Civil Procedure. The appeal has been decided without following the procedure prescribed for deciding the first appeal, thus, the impugned judgment is liable to be set aside. .....Shafika Chowdhury =VS= Badrul Amin @ Manu Sardar, (Civil), 2023(2) [15 LM (AD) 466] ....View Full Judgment

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

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

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

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

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

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.

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) 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.

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.

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.

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.

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.

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

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.

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.

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.

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

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

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

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

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

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

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

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

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

The Code of Civil Procedure, 1908
Order 41 Rule 31
The Limitation Act, 1908
Article 120
For rectification of a document, declaration of title and confirmation of possession in the suit land– On appreciation and sifting of evidences adduced in the trial court disbelieved the defendant’s version of cases regarding their title and possession over the suit and Appellate Division observed that appellate court without discarding the findings based on strong evidences reversed the judgment and decree of the trial court. Hence, the same as well as the later affirmation thereof, of the High Court Division are not tenable in the eye of law. Appellate Division’s considered view is that the High Court Division as well as the Court of appeal below made an error of laws and facts setting aside the judgment and order of the trial Court on the basis of erroneous findings, thus the same cannot be sustainable in law. These Civil Appeals are allowed without any order as to cost. The judgment and order of the High Court Division as well as judgment and decree of the Appellate Court are set aside and judgment and decree of the learned Assistant Judge is hereby restored. .....Mortuz Ali Karar(Md.) =VS= Khatiza Banu, (Civil), 2022(1) [12 LM (AD) 110] ....View Full Judgment

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

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.

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.

The Code of Civil Procedure, 1908
Order XLIII Rule 1 sub-Rule (r)
Acquisition and Requisition of Immovable Property Ordinance, 1982
Section 44
Temporary injunction–– Without hearing the other side the High Court Division should not pass any final order which may affect the other side adversely–– The order of the trial Court rejecting the prayer for temporary injunction was an appealable order as per provision of Order XLIII Rule 1 sub-Rule (r) of the Code of Civil Procedure. Since there is specific provision of law for preferring appeal and that revisional application before the District Judge was misconceived one, the learned District Judge rightly rejected the application for ad-interim injunction. The High Court Division most illegally, without consideration as to whether civil revisional application was at all maintainable in the Court of District Judge or not and that the suit itself was barred under section 44 of the Acquisition and Requisition of Immovable Property Ordinance, 1982, or not erroneously directed the parties to maintain status-quo in respect of the suit land. Repeatedly this Division has observed that without hearing the other side the High Court Division should not pass any final order which may affect the other side adversely. The impugned order is an example of gross illegality committed by the High Court Division. Be it noted that Court itself is not authorised to make such exparte order without giving the other side an opportunity of being heard. ––Considering the aforesaid facts and circumstances, the order of the High Court Division is liable to be set aside. The trial Court is directed to dispose of the suit as expeditious as possible preferrably within 6 months from the date of communication of this order. .....ADC (L.A.), Khulna =VS= Md. Kayem Ali, (Civil), 2023(2) [15 LM (AD) 493] ....View Full Judgment

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

Bangladesh Service Rules, Part-1
Rule 42
Bengal Statue 1781, Bengal Regulation No.1793, Act of 1964, Act of 1865, Act of 1871, Act of 1877 and Act 16 of 1908, Act of 1964
Service (Reorganization and Condition) Act, 1975
Constitution of Bangladesh, 1972
Article 102, 105
Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Order XXVI
Code of Civil Procedure, 1908
Order XLVII, rule 1
Extra Mohorars— Writ-petitioners are entitled to united grades and pay of scale, equal pay and other benefits of service— The respondents-writ-petitioners invoked writ jurisdiction under Article 102 of the Constitution to protect their rights as Government employees and against hostile and discriminatory action of the appellant-writ respondents as such writ petition is very much maintainable. .....Ministry of Law, Bangladesh =VS= Abdur Rahman Bhuiyan, (Civil), 2024(1) [16 LM (AD) 35] ....View Full Judgment

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."
A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error apparent on the face of the record. ...Major Md. Bazlul Huda (Artillery) =VS= The State, (Criminal), 2021(1) [10 LM (AD) 581] ....View Full Judgment

Limitation Act, 1908
Section 5
Code of Civil Procedure, 1908
Order XLVII Rule 1
Having gone through the application for condonation of delay filed by the Government along with that civil petition it appears that the application does not contain any specific explanation as required under section 5 of the Limitation Act which prescribes that every days delay has to be explained properly up to the satisfaction of the Court concerned. In that circumstances the order dated 14.12.2017 has been passed dismissing the civil petition for leave to appeal and Appellate Division does not find any error apparent on the face of it discovered by the review petition which is liable to be dismissed. .....Ministry of Law, Bangladesh =VS= Md. Touhidul Islam, (Civil), 2023(2) [15 LM (AD) 228] ....View Full Judgment

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

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.

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.

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.

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.

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.

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

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

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

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

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

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

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

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

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

Code of Civil Procedure, 1908
Section 115
Partition of the suit property and declaration that the R.S. record is wrong in respect of the suit land— The positive findings of the courts below as mentioned above were wrongly interfered by the High Court Division in its revisional jurisdiction under Section 115 of the Code of Civil Procedure. The High Court Division totally misdirected itself in holding that the judgment and decree passed by the learned Judge of the trial Court giving 1/3 saham to the defendant Nos.8-10 and declaration R.S. Khatian No.223 as wrong are not sustainable in law. The impugned judgment and order of the High Court Division is set aside. The Judgment of the trial court is restored. .....Razzak Bepari =VS= Entajuddin, (Civil), 2024(1) [16 LM (AD) 649] ....View Full Judgment

The jurisdiction of the High Court Division while hearing a revision petition is purely discretionary and the discretion is to be exercised only when there is an error of law resulting in an error in the decision and by that error failure of justice has been occasioned and interference is called for the ends of justice and not otherwise. Error in the decision of the sub-ordinate Courts do not by itself justify interference in revision unless it is manifested that by the error substantial injustice has been rendered. The decision which is calculated to advance substantial justice though not strictly regular may not be interfered with in revision. ...Abul Kasem & anr Vs. Asfaque Ahmed & anr, (Civil), 17 SCOB [2023] HCD 93 ....View Full Judgment

Power of revision is intended to be exercised with a view to sub-serve and not to defeat the ends of justice. The above principles of law, the High Curt Division is required to follow while adjudicating upon a matter in exercise of its revisional jurisdiction under section 115(1) of the Code of Civil Procedure. Here, it must not be overlooked that there is a lot of difference between a revision and appeal. An appeal confers a right on the aggrieved party to complain in the prescribed manner to the higher forum whereas the supervisory or revisional power has for its objects the right and responsibility of the higher forum to keep the sub-ordinate Courts within the bounds of law. ...Abul Kasem & anr Vs. Asfaque Ahmed & anr, (Civil), 17 SCOB [2023] HCD 93 ....View Full Judgment