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| Supreme
Court Online Bulletin (SCOB) |
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High Court Division |
| Judgment Published
in SCOB |
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| Serial
No. |
Name
of the Parties,
Citation and Key Words |
Summary
of the case |
Key
Ratio |
| 1. |
Md.
Zoni
Vs.
The State
(Md. Shahinur Islam, J)
19 SCOB [2024] HCD 1
Key Words:
Murder; Culpable homicide; Confessional statement;
Section 302 and section 304 Part II of the Penal
Code; premeditation
|
In this case
the convict-appellant was sentenced to suffer
imprisonment for life by the trial court under
section 302 of the Penal Code. High Court Division,
however, finding that the victim sustained single
injury and died 18 days later, the weapon (Batal)
was not carried by the appellant in advance, there
was no premeditation and the convict lost self-control
being emotional before committing the crime held
that the convict-appellant had no intention to
commit the murder. His act falls under the offence
of ‘culpable homicide not amounting to murder’.
Consequently, appellant’s sentence was altered
by the High Court Division from life imprisonment
to rigorous imprisonment for 10 (ten) years. |
In
the absence of any motive, conspiracy, pre-plan
or pre-meditation on part of accused it can
be deduced that the appellant had no ‘intention
to commit murder’:
It is to be noted that to find an accused guilty
of offence of murder punishable under section
302 Penal Code it must be proved that there
was an intention to inflict that particular
bodily injury which in the ordinary course of
nature was sufficient to cause death. But in
the case in hand, we do not find the injury
sustained by the victim was sufficient to cause
his death. Injured victim however died in hospital
18 days after he sustained injury. The post
Mortem doctor admits in cross-examination that
no appropriate treatment was provided to injured
victim when he had been in hospital. It appears
from the evidence on record that prosecution
failed to prove any motive, pre-meditation,
pre-plan or any conspiracy on the part of accused
appellant to kill victim Alimullah. In the absence
of any motive, conspiracy, pre-plan or pre-meditation
on part of accused-appellant Joni while inflicting
injury resulting the death of the victim 18
days after the occurrence, we find that the
accused-appellant Joni had no ‘intention to
commit murder’ but he committed the offence
of ‘culpable homicide not amounting to murder’.
...(Para 65 &66)
|
| 2. |
Mesbaul
Alam & ors
Vs.
Bangladesh & ors
(Kashefa Hussain, J)
19 SCOB [2024] HCD 14
Key Words:
Sections 2(65), 4Ka of Bangladesh Labour Law,
2006; section 2(c) of Services (Reorganisation
& Conditions) Act-1975; dismissal; termination;
termination simpliciter; Section 14, 16 of the
সমবায় সমিতি আইন ও সমবায় সমিতি বিধিমালা; Sections
14 and 21 of the Co-operative Society Act- 2001;
Section 1(4)(ka) of the বাংলাদেশ শ্রম আইন-২০০৬
|
Question arose
in this petition whether writ is maintainable
against Milk Vita. The High Court Division found
that Milk Vita is a public body and not a private
entity and as such Writ is maintainable. The court
also found that the petitioners are not “worker”
so their case does not lie before the Labor Court.
Finally, Court found that impugned memos were
not issued lawfully so it declared them issued
without lawful authority and directed the concerned
authority to proceed against the petitioners under
clause 8.06 of the চাকুরি বিধি ও নিয়োগ নীতিমালা
২০০৮ (সংশোধিত ২০০৯) and dispose of the matter
in accordance with law.
|
Section 1(4)(ka)
of the বাংলাদেশ শ্রম আইন-২০০৬: We have next drawn
our attention to Section 1(4)(ka) of the বাংলাদেশ
শ্রম আইন-২০০৬. Section 1(4)(L) contemplates organizations
which shall fall within the exception of Section
1(4)(L) and shall not fall within the meaning
of বাংলাদেশ শ্রম আইন-২০০৬. We have particularly
drawn attention to Section 1(4)(L) and which is
reproduced hereunder: “সরকার বা সরকারের অধীনস্থ
কোন অফিস” which means Government office or institutions
owned by the government. Since we are of the considered
finding and opinion that the বাংলাদেশ দুগ্ধ উৎপাদকারী
সমবায় সমিতি লিমিটেড is a public body and is owned
by the government therefore it is needless to
state that the organizations owned by the government
falls within the exception of Section 1(4)(L).
Consequently the provisions of বাংলাদেশ শ্রম আইন-২০০৬
shall not be applicable in the petitioners case.
Such being the position, we are also of the considered
view that the petitioners’ are not workers rather
they are permanent employees under a particular
selection grade. ...(Para 35)
The employees must be afforded due process before
seizing him of his employment. In not affording
due process is a direct infringement into the
employee’s fundamental rights guaranteed under
the constitution.
...(Para 42)
|
| 3. |
Tanvir
Quader & anr
Vs.
Bangladesh & ors
(Farah Mahbub, J)
19 SCOB [2024] HCD 27
Key Words:
Article 102(5) read with Article 152 of the
Constitution; Sections 3(39) and 3(28) of the
General Clauses Act, 1847; Registration of Private
Schools Ordinance, 1962;
|
The petitioners
as being the parents of the students who were
studying at the respective private schools filed
this writ petition challenging the charging of
unreasonable high tuition fees on the students
who were attending on-line classes of the respective
private schools during Covid-19 pandemic. The
High Court Division, however, found that writ
petition was not maintainable against the private
schools who are neither “statutory body” nor “local
authority”. Consequently, it discharged the 1st
part of Rule. But it directed the respective registering
authorities to take immediate steps under the
provisions of বিদেশি কারিকুলাম এ পরিচালিত বেসরকারি
বিদ্যালয় নিবন্ধন বিতিমালা, ২০১৭ and বেসরকারি প্রাথমিক
(বাংলা ও ইংরেজী মাধ্যম) বিদ্যালয় নিবন্ধন বিতিমালা,
২০১১ to constitute respective Managing Committees
who can look into the issue of the quantum and
collection of tuition fees from students.
|
Registration
of Private Schools Ordinance, 1962:
In the instant case, the petitioners have miserably
failed to show that charging same tuition fees
as charged in pre Covid-19 period from the students
of private schools including respondent Nos. 5
and 6 for the on line classes during Covid-19
pandemic is violative of the provisions of the
Ordinance No. XX of 1962 and the Rules so have
been framed thereunder. Consequently, the line
of argument which has been resorted to by the
petitioners for maintainability of the 1st part
of the Rule, falls through.
...(Para 57)
|
| 4. |
Swairachar
O Sampradaiyikata Protirodh Committee & ors
Vs.
Bangladesh & ors (Naima Haider, J
& বিচারপতি মোঃ আশরাফুল কামাল)
19 SCOB [2024] HCD 41
Key Words:
State Religion; Articles 2A, 12, 41 and 100
of the Constitution; Section 2 of the Constitution
(Eight Amendment) Act 1988; religious establishment;
political questions; secularism;
|
In this writ
petition the constitutional amendments by which
the creation of permanent Benches of the High
Court Division and insertion of article 2A in
the constitution, declaring Islam as the state
religion, was challenged. The High Court Division
mainly discussed the issue of state religion
as the legality of creation of permanent Benches
has already been decided by the Appellate Division
in the case of Anwar Hossain Chowdhury and others
Vs. Bangladesh [41 DLR (AD) 165]. The Court,
by majority, held that though Islam had been
declared as the state religion, the amendment,
by creating positive obligation upon the state,
had also ensured that other religion would not
be discriminated. However, Mr. Justice Md. Ashraful
Kamal indicated that no hearing on merit of
the Rule took place and the Rule was discharged
only on the point of locus standi of the petitioner
organization and others. In the result, the
larger Bench discharged the rule. |
Article 2A of
the Constitution:
Article 2A of the Constitution, impugned herein,
in our view, neither offends the basic principles
of the Constitution, as contained in the preamble
nor offends any other provision of the Constitution.
The conferment of status of “State Religion” on
its own does not tantamount to an action on the
part of State to grant political status in favour
of Islam. Article 2A must be read as a whole and
once read, it becomes obvious that the insertion
of the concept of Islam being the state religion
does not, on its own, affect the constitutional
rights of others having different religious beliefs.
It does not affect the basic structure of the
Constitution and also does not render the Constitution
redundant. The impugned amendment also does not
offend the concept of secularism, as provided
for in the Constitution.
...(Para 39, Per Naima Haider, J)
দরখাস্তকারী সংগঠনের অত্র মোকদ্দমা অত্র আদালতের
সামনে উপস্থাপনের নিমিত্তে প্রয়োজনীয় আইনগত যোগ্যতা
না থাকা হেতু অত্র রুলটি খারিজ যোগ্য। অতএব, আদেশ
হয় যে, অত্র রুলটি বিনা খরচায় খারিজ করা হলো।
...(Para 70 & 71, বিচারপতি মোঃ আশরাফুল কামাল)
|
| 5. |
Taherul
Islam
Vs.
Speaker, Bangladesh Jatiya Sangsad & ors
(Sheikh
Hassan Arif, J)
19 SCOB [2024] HCD 66
Key Words:
Article 123(3), Article 148(3) and 72(3) of
the Constitution of the Peoples’ Republic of
Bangladesh; Deeming Clause; Parliamentary Election;
Member of Parliament; Legal Fiction
|
In this case
petitioner challenged the holding of office by
taking oath by the Members of Parliament who were
elected for the 11th National Parliament before
expiration of the term of the previous Parliament.
The petitioner alleged that by taking oath before
dissolution of the 10th National Parliament the
MPs had violated the Article 123(3) read with
Article 148(3) and 72(3) of the Constitution of
the Peoples’ Republic of Bangladesh and there
existed 600 MPs at that time. The High Court Division
analyzing different provisions of the Constitution,
summarily rejected the writ petition on the ground
that Article 148(3) of the Constitution was incorporated
to maintain continuity of running the government
for the best interest of democracy. The “deeming
clause” that exists under Article 148(3) is to
facilitate the continuity of the government. The
Court also held that though, upon taking oath,
the MPs in reality had not assumed office of Members
of Parliament, yet they had assumed office by
way of legal fiction created by the Constitution.
Therefore, taking oath by the MPs before dissolution
of previous parliament was not illegal. This view
of the High Court Division was affirmed by the
Appellate Division (see 19 SCOB [2024] AD 10).
|
Article 123 (3)
and 148(3) of the Constitution of the Peoples’
Republic of Bangladesh:
MPs who took oath even before the first meeting
of the parliament shall not in fact or in reality
assume such office of members of parliament before
expiration of the tenure of the last parliament:
This ‘deeming clause’ has been incorporated in
sub article (3) of Article 148 just to facilitate
such working and continuity of the government.
Though, upon taking oath, the MPs in reality have
not assumed office of members of parliament, yet
they have assumed office by way of legal fiction
created by the Constitution and that legal fiction
must be interpreted by this Court limiting the
same to be used for the said purpose only. It
is apparent from the examination of the relevant
provisions of the Constitution as mentioned above
that our legislature has deliberately created
this legal fiction so that the next executive
government can be formed and appointed by the
President. This intention of the legislature has
been made clear by proviso to sub article (3)
of Article 123 wherein it has been provided that
such MPs shall not assume office as members of
parliament except after the expiration of the
term of the previous parliament. This means that,
the MPs who took oath even before the first meeting
of the parliament shall not in fact or in reality
assume such office of members of parliament before
expiration of the tenure of the last parliament.
...(Para 22)
|
| 6. |
Ali
Imam
Vs.
The Judge, Artha Rin Adalat & ors
(J.B.M. Hassan, J)
19 SCOB [2024] HCD 76
Key Words:
Section 7(c) of the Bangladesh Passport Order;
Sections 6(5), 34(1) and 57 of the Artha Rin
Adalat Ain, 2003; Article 36 of the Constitution;
Seizure of the passports, Freedom of movement
|
In the instant
writ petition, the petitioner came before the
Court when on the application under section 7(c)
of the Bangladesh Passport Order, 1973 read with
section 57 of the Artha Rin Adalat Ain, 2003 of
the respondent no. 2, the Artha Rin Adalat passed
an order against the plaintiff directing him to
submit the passport and restraining him from going
out of the country. The petitioner claimed that
as a mere mortgagor he cannot be held liable and
there is no provision relating to deposit of passport,
curtailing freedom of movement in the Artha Rin
Adalat Ain 2003. The High Court Division mentioning
the case reported in 22 BLC (AD) 53 held that
under section 6 (5) of the Act 2003, the plaintiff
would also be liable with the same responsibilities
as principle borrower. Moreover, the Court held
that under article 36 of the Constitution freedom
of movement is subject to the supervision by the
court. The Court also held that under section
57 of the Act of 2003, the Adalat can pass any
supplementary order to ensure justice. |
57 of the Artha
Rin Adalat Ain, 2003:
Section 57 of the Act, 2003, in addition, authorizes
the Adalat to pass any supplementary order to
secure ends of justice, on consideration of the
facts and circumstances under the proceedings.
Therefore, we are of the view that section 57
is the appropriate provision incorporated in the
statute (Act, 2003) authorizing the Adalat to
pass the necessary order in order to ensure realization
of the decretal dues. As such, in the public interest
to ensure realization of public money, the Artha
Rin Adalat exercised the statutory authority under
section 57 of the Act, 2003 and by the impugned
order directed the petitioner to deposit his passport.
Hence, Article 36 of the Constitution has not
been violated in passing the impugned order by
the Adalat. ...(Para-25)
|
| 7. |
Sufia
Bewa and ors Vs.
Md. Aminul Islam and ors
(Md. Ruhul Quddus,
J)
19 SCOB [2024] HCD 85
Key Words:
Subsection (3) of Section 92 of the State Acquisition
and Tenancy Act, 1950; Rule 6, Subrules (2)
and (3) of the Tenancy Rules, 1954; Article
143 (1) (c) of the Constitution; Hindu law of
inheritance; exchange deed; paper transaction;
chance litigants;
|
In this suit
the High Court Division analyzing the evidence
on record, not only disbelieved the plaintiffs’
claim but also found that the defendants, except
defendant number 6 Haripada Mahato, had no lawful
title over the suit land. Court then came to the
conclusion that the rightful owner of the suit
property was unavailable for a long period. It
then directed to the Deputy Commissioner of Rajshahi
to commence an inquiry into whether any rightful
owner of the suit property is available or not.
If no rightful owner is available, the Court ordered,
the suit land except the share of defendant number
6 (Haripada Mahato) would vest in the Government. |
A plaintiff’s
failure never means that the defendant is the
lawful owner of the subject matter:
On a contradictory claim of title on land between
the plaintiff and defendant, if the plaintiff
fails, everyone thinks that the claimant-defendant
is the owner of the suit land. It is absolutely
a wrong notion and misconceived social psychology.
A plaintiff’s failure never means that the defendant
is the lawful owner of the subject matter. In
a case like the present one where the defendants,
besides resisting the plaintiffs’ claim, fail
to establish their lawful title over the suit
land, they should not be allowed to continue
with the possession, if any, over the same.
...(Para 39)
|
| 8. |
Justice
Md. Joynul Abedin (Rtd.)
Vs.
State & anr
(Md. Nazrul Islam Talukder,
J)
19 SCOB [2024] HCD 94
Key Words:
Anticipatory Bail; Section 498 of the Code of
Criminal Procedure; Section 21, 26, 27 of the
Anti-Corruption Commission Act, 2004;
|
In this case
the petitioner prayed for anticipatory bail under
section 498 of the Code of Criminal Procedure
being aggrieved by a news report published in
the Daily Janakantha. Thus, with the anticipation
of arrest and harassment, he came to this Court.
The Court held that mere fear cannot be the reason
for granting anticipatory bail and there must
be reasonable belief for malicious intention.
Moreover, the court found that the bench had no
jurisdiction to dispose of the matter and thus
discharged the rule. |
The anticipatory
bail is neither a passport to the commission of
crimes nor shield against any and all kinds of
accusations, likely or unlikely. The anticipatory
bail cannot be granted to a person/accused for
the reason that he or she is in mere fear that
he or she may be arrested and the same cannot
be granted on vague apprehension of arrest. Mere
fear is not a belief for which reason the accused/person
may be granted anticipatory bail.
...(Para-42)
|
| 9. |
Danish
Foods Ltd
Vs.
Rani Food Industries Ltd & anr
(Md. Ashraful Kamal, J)
19 SCOB [2024] HCD 104
Key Words:
Sections 41 and 42 of the Trade Marks Act, 2009;
honest intention; honest purpose;
|
In this case
the petitioner Danish Food Limited filed an application
under Section 42 and 51 of the Trade Marks Act,
2009 for removal of trade mark consisting of the
word ‘RANI’ granted by the respondent No.2 in
favour of the respondent No.1 from the register.
High Court Division, however, hearing both sides,
found that section 51 has no manner of application
in this case and stipulations provided in section
42 of the Act, have not been fulfilled so as to
order the removal. Therefore, it rejected the
application. |
Sections 41 and
42 of the Trade Marks Act, 2009:
Section 42 of the Trade Marks Act, 2009 deals
with the removal and impose limitation of the
mark from the registrar book for non use of the
trade mark. According to sub section (1) of section
42 of the Trade Mark Act, 2009, on the basis of
any application by any aggrieved person, High
Court Division or Registrar of Trade Mark can
remove any mark from the register book, if the
applicant of the trade mark registration of the
goods or service or constituting company under
section 41 of the Trade Marks Act, 2009 has no
honest intention or 1(one) month prior registration
of the mark had not use the mark for honest purpose
or has no use the mark for honest purpose after
5(five) years and above from the date of registration.
...(Para 26)
|
| 10. |
Reliance
Insurance Ltd.
Vs.
Phoneix Fin. & Invest. Ltd & ors
(Md.
Mozibur Rahman Miah, J)
19 SCOB [2024] HCD 112
Key Words:
Admissibility of evidence; Cross-examination;
Money Suit;
|
The question
arose in this case was regarding the admissibility
of evidence. Phoneix Finance and Investments Ltd.
sued Reliance Insurance Ltd. and presented a witness
(P.W-1) who provided testimony during examination-in-chief.
However, due to the plaintiffs' repeated failure
to produce P.W-1 for cross-examination by the
defendant, the trial court closed the cross-examination.
The defendant submitted an application to hold
the evidences provided by P.W-1 to be inadmissible
and argued that without cross-examination, they
were unable to test the veracity of P.W-1's statements
and exhibited documents, which hinders their ability
to present a proper defense. The trial court rejected
the application and the defendants instituted
the instant Civil Revision. The High Court Division
allowed the revision, emphasizing the importance
of cross-examination as a fundamental right and
a crucial element in ensuring a fair trial. However,
the plaintiffs retain the option to present new
witnesses, or the case can proceed with the defendant
presenting their own witnesses. |
In absence of
cross-examination, mere examination-in-chief cannot
be admitted as evidence when the defendants cannot
get any opportunity to test the veracity of such
testimony as well as the documents so have been
produced and exhibited by the plaintiff-witness.
In essence, the evidence ended in chief has got
no evidentiary value at all. ...(Para 13)
|
| 11. |
Shaikh
Ali Iman
Vs.
Subodh Kumar Mondol & ors
(Muhammad Khurshid
Alam Sarkar, J)
19 SCOB [2024] HCD 116
Key Words:
Section 89 and 96 of the State Acquisition and
Tenancy Act; preemption cases; preemptor; preemptee;
notice of transfer; dispatch book/register;
|
In this case
while adjudicating the issue as to whether the
pre-emptor had knowledge about the transfer of
property within the statutory limitation, the
High Court Division held that it is the legal
presumption that the transfer notice was duly
served to the pre-emptor. If in fact, it was not,
then it has to be proved in the trial court producing
the dispatch book/register of the Registering
or other concerned Officer or by examining the
process server. The High Court Division also held
that the trial Court must frame issue relating
to service of notice while adjudicating preemption
cases. Finally, the High Court Division issued
some guidelines for the subordinate Courts to
be followed while dealing with pre-emption cases. |
Section 89 of
the SAT:
No sale of a property, in which existence of co-sharers
would be apparent from the records, can be completed
without serving notice upon the co-sharers inasmuch
as the law forbids the Registering Officer to
register a sale-deed without obtaining the notice
together with the process-fees from the seller
and, thereafter, the Registering Officer is duty
bound to transmit the notice to the Revenue Officer
who shall, then, serve the said notice by registered
post. And, in the light of use of the word ‘shall’
by the Legislature in each of the steps mentioned
in Section 89 of the SAT Act, the legal presumption
is that all the State/Government functionaries
have performed their duties assigned under Section
89 of the SAT Act. If any preemptor claims that
s/he was never served with the notice under Section
89 of the SAT Act, then, in turn, the preemptee
shall have to prove its service. However, for
an effective adjudication of a preemption case,
the preemptor may either apply to the trial Court
for production of the ‘dispatch book/register’
of the Registering Office and that of the Revenue
Office of the relevant dates or may apply to the
Court for examining the process-server of the
Revenue Office to prove contrary to the legal
presumption. If the office/person responsible
for serving notice under Section 89 of the SAT
Act proves before the Court the fact of serving
the said notice upon the preemptor, then, it would
be for the notice receiver, being a preemptor
in a preemption case, to rebut before the trial
Court by any other ocular evidence with corroboration
that he has never received the notice under Section
89 of the SAT Act.
...(Para 12)
|
| 12. |
Mosarrof
Hosen and anr
Vs.
Artha Rin Adalat-1, Dhaka & ors
(A. T.
M. Saifur Rahman, J)
19 SCOB [2024] HCD 126
Key Words:
Section 10, 19, 41 of the Artha Rin Adalat Ain,
2003; Ex-parte Decree; Article 102 of the Constitution;
Alternative remedy
|
This writ petition
was filed challenging the ex-parte judgment and
decree passed by the Artha Rin Adalat on the ground
that the trial court has violated the provision
of section 10 of the Artha Rin Adalat Ain, 2003
by not giving opportunity to the petitioner to
submit written statement. Another question was
raised by the opposite party as to the maintainability
of the writ petition. The Court found that as
the petitioner appeared before the trial court
to submit the written statement, he should have
been given the opportunity as per the law. Moreover,
the Court also held that alternative remedy would
not be a bar in case of exercise of the jurisdiction
under article 102 of the constitution by the High
Court Division. |
In the instant
case, we have noticed that the trial Court below
for the first time fixed the date for an ex-parte
hearing on 28.02.2022, and on that day the petitioner
appeared before the trial Court along with an
application prayed for time to submit the written
statement, which was rejected and thereby passed
the ex-parte judgment and decree on the same day
in presence of the petitioner as evident from
Annexure – B to the writ petition. So it is crystal
clear that in violation of the mandatory provision
of section 19(1) of the Ain 2003, the ex-parte
judgment and decree has been passed and, as such,
it is a nullity in the eye of the law.
...(Para-13)
|
| 13. |
Md.
Julhas Uddin Jibon
Vs.
Md. Ayub Khan & ors
(Md. Badruzzaman, J)
19 SCOB [2024] HCD 130
Key Words:
Sections 14, 15, 16, 17 and 21 A(b) of the Specific
Relief Act; Section 115(1) of the Code of Civil
Procedure; specific performance of contract;
Order VII Rule 11 of the Code of Civil Procedure;
rejection of plaint; return of plaint;
|
In this case,
the plaintiff filed the suit for specific performance
of part of the contract where part unperformed
was large. At the time of filing the suit he did
not deposit the balance consideration money at
the court. He deposited consideration money after
few days of filing the suit and that too was less
than the agreed amount. The defendant prayed for
rejection of plaint under Order VII Rule 11 of
the Code of Civil Procedure, 1908 but the trial
Court rejected the application for rejection of
plaint. The defendant then filed this revisional
application. The High Court Division, upon hearing
and analyzing section 15 and 21A of the Specific
Relief Act came to the conclusion that the plaint
should have been rejected for not depositing the
balance consideration money at the time of filing
the suit in full. It also directed the Sub-ordinate
Courts to strictly follow the expressed provisions
of the statute as well as the law settled and
declared by our Apex Court. |
Section 15 of
the Specific Relief Act: In this case, the plaintiff
filed the suit for specific performance of part
of the contract where part unperformed is large.
As per claim of the plaintiff the defendant is
unable to perform the whole of his part because
the quantum of land, after measurement, was found
less and that substantial part of the contract
can be performed and the part unperformed is a
considerable portion of the whole. Accordingly,
this suit obviously comes under the second exception
provided in section 15 of the Specific relief
Act. As such, to get a decree of specific performance
of the part of the contract (i.e for .2123 acre
land), the plaintiff must be willing to pay total
consideration of Tk. 12.75 crore for said .2123
acre land though as per contract said amount was
fixed as the value of entire .2825 acre land.
But the plaintiff unilaterally measured the suit
land as .2123 acre instead of .2825 acre as was
agreed to purchase by him and he is willing to
pay part consideration of Tk. 9,58,16,814.16 as
value of .2123 acre land instead of entire consideration
of Tk. 12.75 crore and with such calculation the
plaintiff deposited balance consideration of Tk.
6,08,16,814.23 instead of agreed balance of Tk.
9.25 crore. As per section 15 of the Specific
Relief Act the plaintiff was required to file
the suit for specific performance of the part
of the contract for .2123 acre land by depositing
Taka 9.25 crore out of total consideration of
Tk. 12.75 crore and being failed to do so, the
suit is barred under section 15 of the Specific
Relief Act. ...(Para 25) |
| 14. |
Prof.
Dr. Md. Rahmat Ullah
Vs.
Bangladesh & ors
(Zafar Ahmed, J)
19 SCOB [2024] HCD 140
Key Words:
Article 52 and 56 (3) of the Dhaka University
Order, 1973; clause 45(3) of the First Statutes;
temporary release; suspension
|
In the instant
case, the High Court Division examined whether
the Syndicate of the University of Dhaka has the
power to release a Professor of Law temporarily
(mvgwqK Ae¨vnwZ) from all academic and administrative
duties of the University and in view of the stand
taken by the University whether formal departmental
proceedings have been initiated against the petitioner
Professor. The Court found that the term ‘p¡j¢uL
AhÉ¡q¢a’ (temporary release) used against the
petitioner is not synonymous to ‘suspension’ because
the committee formed by the Syndicate, being not
formed in accordance with law, cannot be termed
as a statutory Enquiry Committee. The Court also
found that the Syndicate did not take any decision
to initiate any formal departmental proceedings
against the petitioner by framing formal charge.
Based on these grounds, the Court held that the
Syndicate’s decision to release the petitioner
temporarily from his duties is beyond the purview
of law and the said decision was taken without
lawful authority and without jurisdiction. |
The Syndicate’s
decision to release the petitioner temporarily
from his duties is beyond the purview of law:
In the instant case, the Syndicate did not deliberately
use the term ‘suspension’ (mvgwqK hlM¡Ù¹), rather
it used the term ‘p¡j¢uL AhÉ¡q¢a’ (temporary release)
which is not synonymous to ‘suspension’ for the
reason that the syndicate did not take any decision
to initiate any formal departmental proceedings
against the petitioner by framing formal charge.
The Syndicate formed a committee which seems to
be merely a fact-finding committee. In our view,
there was no exigency or circumstances envisaged
by law to release the petitioner temporarily from
his duties. Moreover, the term ‘temporary release
from duties’ is uncommon in service jurisprudence.
The University Order, Statutes and Service Regulations
do not recognise such action. Therefore, we have
no hesitation to hold that the Syndicate’s decision
to release the petitioner temporarily from his
duties is beyond the purview of law and the said
decision was taken without lawful authority and
without jurisdiction. ...(Para 16)
|
| 15. |
Md.
Nurul Islam
Vs.
The State & anr
(Md. Shohrowardi, J)
19 SCOB [2024] HCD 146
Key Words:
Misappropriation of property; Evidence Act,
1872; Section 409 of the Penal Code, 1860; Section
5(2) of the Prevention of Corruption Act, 1947;
Section 10 of the Criminal Law Amendment Act,
1958; Section 66 of the Evidence Act 1872
|
The appellant
came to this court when in a case of misappropriation
of property he was convicted under section 409
of the Penal Code and under Section 5(2) of the
Prevention of Corruption Act, 1947. The Court
found that to prove the case the prosecution had
submitted photocopy of all the exhibited documents.
The Court also found that there was no proof of
distribution of the misappropriated allowances
by the appellant and that the prosecution failed
to provide the explanation under section 66 of
the Evidence Act 1872 regarding the non production
of the original document. Thus, finding merit,
the High Court Division allowed the appeal. |
Section 66 of
the Evidence Act, 1872:
The prosecution proved the photocopy of alleged
letter of admission of guilt of the accused Md.
Nurul Islam as exhibit-1 and the photocopy of
the deposit slips as exhibit-II. No original letter
of admission of guilt and deposit slip was proved
by the prosecution. Admittedly all the documents
lie with the Sonali Bank Ltd. Neither the investigating
officer seized those documents nor any original
document was proved by the prosecution. Furthermore,
the investigation officer PW. 9 Rabindranath Chaki
stated that seized documents were not attested
by any officer of the bank. The prosecution failed
to give any explanation under section 66 of the
Evidence Act, 1872 for not producing original
documents. No evidence was adduced by the prosecution
to show that the original document was lying with
the accused Md. Nurul Islam. Therefore, exhibits-
1, 2, 4, 5, 6 and 7 in Special Case No. 8 of 2012,
exhibits- 2 to 7 in Special Case No. 9 of 2012,
and exhibits 1 to 5 in Special Case No. 10 of
2012 are not admissible in evidence. ...(Para-49)
|
| 16. |
Adv.
Abu Saleh Ahmadul Hasan
Vs.
The State
(S M Kuddus Zaman, J)
19 SCOB [2024] HCD 161
Key Words:
Section 561A of the Code of Criminal Procedure,
1898; Section 27 of the Real Estate Unnayan
and Bobosthapana Ain, 2010; Arbitration Act,
2000
|
Rule was issued
in the instant case calling upon the opposite
parties to show cause as to why the proceedings
of a C. R. Case filed under section 27 of the
Real Estate Unnayan and Bobosthapana Ain, 2010
should not be quashed under section 561A of the
Code of Criminal Procedure. The High Court Division
found that the complainant without making full
payment of the price of the apartment filed the
CR case against the developer for not completing
the construction work, for which there remains
no element of initial cheating by the developer
in this case. Moreover, article 24 of the deed
of contract between the petitioner and opposite
party No.2 for purchase of apartment provides
for provision of arbitration for settlement of
any dispute arising out between the parties while
the construction work is in progress. The dispute
as stated in the petition of complaint falls within
the purview of article 24 of the deed of contract.
So, the complainant should have approached the
learned District Judge for appointment of Arbitrators
under the Arbitration Act, 2000. Finally, the
High Court Division refusing to accept the argument
of the learned Advocate for the opposite party
No.2 that a legal notice served upon the concerned
Advocate for the petitioner for completion of
construction work could be treated as a notice
for Arbitration, observed that a legal notice
cannot be construed as a notice for arbitration
and a notice for arbitration cannot be addressed
to the Advocate of the concerned party. |
Section 27 of
the Real Estate Development and Management Act,
2010:
There is no allegation in the petition of complaint
that there is no progress of construction of the
second apartment or the petitioner has sold out
the same to any other person. It has merely been
stated that the petitioner did not complete the
construction work of the second apartment. But
since the complainant did not make full payment
for above apartment he cannot expect the completion
of the construction worker or transfer of ownership
of the above apartment. In view of above materials
on record we are unable to find any element of
initial cheating in this case. As such section
27 of the Real Estate Development and Management
Act, 2010 does not have any application in the
facts and circumstances of this case. (Paras 12
&13)
|
| 17. |
Mahmud
N. A. Khan & ors
Vs.
Md. Kamrul Islam Khan & ors
(Md. Zakir
Hossain, J)
19 SCOB [2024] HCD 165
Key Words:
Section 81 and 82 of the Trusts Act, 1882; Land
Reforms Ordinance, 1984; benami transaction;
Rules of preponderance of evidence
|
In this case
question arose as to whether the plaintiff was
a benamder of his father as the respondents claimed.
The trial court found that the plaintiff was not
a benamder but the Appellate Court reversed the
decision. High Court Division, however, discussed
the laws relating to benami transaction and then
assessing the evidence on record, came to the
conclusion that as per the rules of preponderance
of evidence it has been proved that plaintiff
was not benamder of his father and consequently,
set aside the judgment of the Appellate Court. |
On perusal of
the oral and documentary evidences, it appears
that as per the Rules of preponderance of evidence,
the contention of the plaintiff’s possession is
heavy in weight but the learned District Judge
on slipshod statement held that the joint possession
of the plaintiff and the defendants without sifting
the documents in entirety. The original documents
are lying with the plaintiff and produced from
the custody of the plaintiff and those were admitted
as evidence without any objection from the defendants’
side. The burden of showing that the alleged transfer
is banami transaction has not been discharged
by the defendants’ side. Undisputedly, the father
of the defendants in his lifetime did not take
any legal action against the transaction nor he
filed any suit for declaration that the plaintiff
was his benamder. Considering the surrounding
circumstances, the relationship between the parties
and intention and subsequent conduct of Naybullah
Khan, it is as clear as daylight that 94 years
ago, Naybyllah Khan took settlement of the suit
land for the benefit of his eldest son i.e the
plaintiff for the purpose of the welfare of his
son. ...(Para 25) |
| 18. |
Sannyashi
Mondal
Vs.
Nirmol Chandra Mondol & ors
(Md. Akhtaruzzaman,
J)
19 SCOB [2024] HCD 172
Key Words:
Solenama; Compromise Decree; Order 3 Rule 1,
4 of the Code of Civil Procedure; Order 23 Rule
3; In writing; Signed by the parties
|
The petitioner
came to the High Court Division for setting aside
the compromise judgment and decree on the ground
that the decree was fraudulent and illegal as
the parties had not signed the compromise decree
and were not aware of it. Moreover, they claimed
that the engaged lawyers had not also deposed
before the court regarding the terms and conditions
and consent of the parties of the solenama. They
had also questioned about the title of the opposite
parties. The Court analyzing the evidence found
that the defendant had no title or ownership over
the suit land and held that though an advocate
has the authority to act on behave of his clients
but he should not act on implied authority except
for emergency situations. The court also held
that the court must inquire into and decide whether
there has been a lawful compromise in terms of
which the decree should be passed. Moreover, the
court held that the compromise should be in writing
and signed by the parties and written authority
should be given to the appointed lawyers. Thus,
for not following the conditions of order 23 rule
3 of Code of Civil Procedure and for not following
proper procedure of law, the court made the rule
absolute. |
The Court must
satisfy itself by taking evidence or on affidavits
or otherwise that the agreement is lawful: The
Court must satisfy itself about the terms of the
agreement. The Court must be satisfied that the
agreement is lawful and it can pass a decree by
it. The Court should also consider whether such
a decree can be enforced against all the parties
to the compromise. A Court passing a compromise
decree performs a judicial act and not a ministerial
work. Therefore, the Court must satisfy itself
by taking evidence or on affidavits or otherwise
that the agreement is lawful. If the compromise
is not lawful, an order recording the compromise
can be recalled by the Court. In case of any dispute
between the parties to the compromise, the Court
must inquire into and decide whether there has
been a lawful compromise in terms of which the
decree should be passed. The Court in recording
compromise should not act casually. Where it is
alleged by one party that a compromise has not
been entered into or is not lawful, the Court
must decide that question. ...(Para 67 & 68) |
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