Judgment : Appellate Division Full List
 
Case Type
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Short Description
 

Case Number Parties Short Description
1
The Government of Bangladesh
vs.
Md. Saiful Islam and others
Fortified with the ratio decidendi that has been spelt out in the decisions as referred to above we unequivocally endorse the same principle and hold that the writ-petitioners are not entitled to get any relief as sought for. But at the same time we also sympathetically endorse the view of this Division taken in the case of 72 DLR AD (supra) that the incumbent respondents should not be driven out without anything and the government should come forward in this respect in aid of these hapless employees in these days of hardship. It is our belief that the present respondents should not face displacement without recourse.
2
Ansar V.D.P. Unnayan Bank
vs
Ajoy Kumar Lodh and others
In the instant case it is admitted fact that the inquiry committee was formed by two persons and it is our considered view the whole inquiry proceeding suffers from lack of jurisdiction and the authority relying on such inquiry report committed serious error of law in awarding the punishment to the respondent No.1.
3
Jahanara Begum and others
vs
Hazi Nizamuddin and another
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.
4
The State vs Zainul Abedin @ Advocate Zainul Abedin and another
Guidelines on period of anticipatory bail.
5
Rukhsana Ahmed Ruxi and others
vs.
Bangladesh, represented by the Secretary, (Secondary and Higher Education), Ministry of Education, Bangladesh Secretariat, Ramna, Dhaka and others
With all the vehemence and authority we are declaring that, the petitioners herein shall have to be treated in accordance with the new law as in the manner all of their colleagues have been treated without any discrimination.
6
Government of Bangladesh and others
vs
Sonia Khatun and others
In view of the provision of clause 4.2 it is abundantly clear that the approved limit of making appointment of the teachers in a nationalized school were 4(four) and one of which will be Headmaster; and one more teacher would be considered if number of students are more than 400.
7
Government of Bangladesh, represented by the Secretary, Ministry of Communication, (at present Ministry of Railway), Bangladesh Secretariat, Ramna, Dhaka
vs
Sher-E-Bangla Market Dokander Bohumukhi Samabay Samity Limited, represented by its Secretary, Abdur Rashid Howlader and others
In view of the above facts and circumstances, the writ petitioner Samity is not entitled to get any relief, and the High Court Division committed serious error in making the Rule absolute and earlier this Division also failed to consider this fact that a valuable public property is going be sold in favour of a private party, by resorting forgery in collusion with the officials of the concerned Ministry. It is pertinent to mention here that earlier the resolution of 26th Board meeting of the railway authority was not brought to the notice of this Division and if the same was produced before this Court then result would have been otherwise.
8
Md. Mobarak Hossain
vs
Bangladesh represented by the Secretary, Ministry of Power, Energy and Mineral Resources, Bangladesh Secretariat, Ramna, Dhaka and others
Proceeding initiated and conducted by one service Rules under a separate authority and ultimate decision taken by another authority is unheard of and not permissible in law and equity.
9
Jasmin Ara Begum and others
vs
Banglsdesh, represented by the secretary, Ministry of Women and Children Affairs, Bangladesh Secretariat, Dhaka and others
It is well settled that the Government servants cannot be entitled to invoke writ jurisdiction when their remedy is available in the Administrative Tribunal. Mere challenging Service Rules ipso facto does not make it amenable to the writ jurisdiction.
10
A.B.M. Altaf Hossain and others vs Govt. of Bangladesh and others
(a) The Chief Justice of Bangladesh in exercise of his functions as consultee shall take aid from the other senior Judges of the Supreme Court at least with two senior most Judges of the Supreme Court before giving his opinion or recommendation in the form of consultation to the President. (b) In the light of the observations made in S.P. Gupta, Ten Judges’ cases, and the article mentioned in paragraph-17, it is evident that in case of appointment of a Judge of the Supreme Court under Articles 95 and 98 of the Constitution the opinion of the Chief Justice regarding legal acumen and professional suitability of a person is to be considered while the opinion of the Prime Minister regarding the antecedents of a person is also to be considered. If divergent opinions from either side of the two functionaries of the state occur the President is not empowered to appoint that person as Judge. The opinion of any functionary will not get primacy over the others. (c). If any bad antecedent or disqualification is found against any Additional Judge, who is under consideration of the Chief Justice to be recommended for appointment under the provision of Article 95 of the Constitution, it is obligatory for the executive to bring the matter to the notice of the Chief Justice prior to the consultation process starts. (d). After recommendation is made by the Chief Justice to the President, even if, at that stage it is revealed that antecedent of any recommended candidate is not conducive to appoint him as a Judge under Article 95 of the Constitution, it shall be obligatory for the executive to send the file of that Additional Judge or the person, back to the Chief Justice for his knowledge, so that the Chief Justice can review his earlier recommendation regarding the such candidate. (e). If the Chief Justice again (2nd time) recommends the same Judge/person for appointment under Article 95, whose antecedent has been placed before him for reconsideration, this Court expects that, the President of the Republic would show due respect to the latest opinion of the Chief Justice.
11
Government of Bangladesh and others.
vs
The Managing Director, Ashiyan City Development Limited and others
The alleged ‘No-objection’ in favour of the respondent Ashiyan City cannot be said as discovery of new fact or evidence which after due exercise of diligence was not in the knowledge of the writ petitioner or could not produce by him when the judgment was delivered; rather considering the attending facts and circumstances of the present case, in particular the fact of getting alleged ‘No-objection’ was not produced/communicated or intimated to the Court during pronunciation of judgment of the writ petition, and that the review application was filed after a long lapse of time beyond the limit of prescribed time in law, thus, it is our considered view that this document (No-objection) is not a discovery of new fact or evidence rather it is a new document which the review petitioner-respondent had been able to manage the same cleverly, despite of the order of injunction of the High Court Division.
12
Sulaiman Rubel and others
vs
Dr. Kazi Sirajul Islam and others
In the instant case it is undeniable fact that the Bank, before filing the suit had taken steps as per provision of section 12(3) of the Ain,2003 for selling the property but auction was not done due to the filing of the writ petition before the High Court Division by the mortgagors. Thus, there is no room to say that Bank before filing the suit did not take any steps to sell the mortgaged property.
13
M/s. Sonar Bangla Service Filling Station (CNG) Limited, represented by its Managing Director Rana Chowdhury
Vs
M/s. Nasir CNG Filling Station, represented by its Proprietor Nasir Uddin and others
The term ‘Functus Officio’ means that the jurisdiction of a designated authority comes to an end once he/she has performed his functions for which he/she was appointed. This term is equally applicable for all other offices including the Courts. It is settled principle that when a court has reached its final decision in respect of a matter, such court cannot vary/change its own decision, unless it is permitted by the specific provision of law.
14
The Government of Bangladesh: represented by the secretary, Ministry of Home Affairs, Bangladesh Secretariat, Ramana, Dhaka
Vs
Md. Abdul Mannan and others
In the case in hand, since the order of termination has been passed under section 8 of the Ordinance, 1976 it would be not punitive and it must be assumed that the respondent No. 1 has been discharged from the service of Bangladesh Rifles though the Bengali term "বহিস্কার" has been used there for the word ‘discharge’ inappropriately. So, whatever submissions in this regard of the learned Advocate for the respondent does not hold good being falacious one. But the respondent No. 1 could be entitled to get the financial benefits following the above provisions of law.
15
Md. Abdur Rashid and others
Syed Sohrawardi and another
Vs
A.B.M. Yousuf Abdullah and others
Admittedly, record-of-right in the instant case, has not yet been published finally. The Zonal Settlement Officer simply issued a notice directing the parties to appear before him with their respective papers. The writ petitioners, without appearing before the said Officer, directly filed the instant writ petition and obtained Rule which was finally made absolute. Since the law authorizes the Revenue officer with additional designation of settlement officer to hold inquiry to ascertain as to whether any fraud had been committed in procuring entry for preparation of the record-of-rights before final publication or not, we are of the view, that the said Office acted in its jurisdiction as conferred under the Rule 42A of the State Acquisition Rules, 1955 rightly, the High Court Division erred in law in interfering with the matter at the stage when the writ petitioners have ample opportunity to appear before the Zonal Settlement Officer and to produce documents to justify their claims.
16
S. Nehal Ahmed
Vs
Ministry of Housing and Public Works and another
It is settled principle that when an instrument of gift is reduced into writing, the same must be registered. Oral gift is admissible in the Mohammedan Law and in order to prove oral gift, offer, acceptance and delivery of possession of the alleged gifted land must be established.
We do not find any cogent reason of passing first order by the Settlement Court on 13.04.1996 inasmuch as the petitioner claimed that the same was filed on 08.01.1987. In absence of any order as to the limitation, passing of first order in 1996 ignoring point of limitation cropped up a question how the Court of Settlement entertained such case. We also did not find any order in the case record, in respect of extension of time as per provision of section 11 of the Ordinance. High Court Division finally observed that application dated 08.01.1987 was subsequently created to save the limitation. We do not find anything in the record to disagree with the findings and observations arrived at by the High Court Division as to the point of limitation. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy and unless it is satisfactorily discharged the Court would be reluctant to treat the document as genuine one.
A Court must give reasons for its decision in a case. The reasons should include an explanation of why the Court has chosen to follow or not to follow a previous decision which is identical before it. When an earlier decision is not followed it is said to be distinguished from the earlier case.
17
Advocate M.A. Aziz Khan
Vs
The Election Commission of Bangladesh, represented by the Chief Election Commissioner, Nirbachan Bhaban (7th -8th Floor), Agargaon, Dhaka-1207 and another
The tests for finding out whether an office in question is an office under the Government and whether it is an office of profit, are (1) Whether the Government makes the appointment, (2) Whether the Government has the right to remove or dismiss the holder; (3) Whether the Government pays the remuneration; (4) What are the functions of the holder? Does he perform them for the Government and (5) Does the Government exercise any control over the performance of these functions?
In the case of President of the People’s Republic of Bangladesh, Government of Bangladesh cannot appoint President. Removal procedure of the President is also very stringent since he can be removed by impeachment by two thirds majority of the total members of Parliament (Article 52 and 53 of the Constitution). Government cannot remove president at its will since Government may be formed by simple majority of the members of Parliament [article 56 of the Constitution]. So from the point of view of control over the President by the Government, the office of the President can in no way be termed as office of profit in the Service of the Republic in respect of the Government.
We are of the view that since the term "প্রজাতন্ত্রের কার্য" has not been defined in the Ain and the same has identically been defined in the General Clauses Act, 1897 and in Article 152 of the Constitution, legislature intended that the term "প্রজাতন্ত্রের কার্য" would have the same meaning as in the General Clauses Act, 1897 and Article 152 of the Constitution. Even if the Ain contained a different definition of "প্রজাতন্ত্রের কার্য", the definition of "প্রজাতন্ত্রের কার্য" as contained in article 152 of the Constitution would have got primacy over the definition of "প্রজাতন্ত্রের কার্য" in the Ain, the Constitution being the supreme law of the land.
As per provision of Article 152 of the Constitution, “the service of the Republic” means any service, post or office whether in a civil or military capacity, in respect of the Government of Bangladesh, and any other service declared by law to be a service of the Republic. Sole Presidential Candidate Mr. Md. Shahabuddin does not hold any office of profit in the service of the Republic as per the definition provided in Article 152 of the Constitution. Therefore, he is qualified for election to be a member of the Parliament.
Hypothetically, if president of the Republic falls within the category of persons in the service of Republic, he can hold office during his own pleasure as per article 134. But it is impossible on the ground that President can be removed by impeachment by two thirds majority of the total members of Parliament (Article 52 and 53 of the Constitution).
The domain and the extent of the writ jurisdiction under article 102 of the Constitution is very limited with a few notable exceptions when the High Court Division has considered the matter as an especially exceptional circumstance and in the case it entertained such petition for examination. It usually declined to entertain the election matter.
18
Raihana Shafi being dead her heirs: Monir Ahmed and others
Government of Bangladesh, represented by the Secretary, Ministry of Works
Vs
Chairman, First Court of Settlement, Segunbagicha, Dhaka and others
Hasibur Rahman Chowdhury and others
The law does not provide any provision to review a judgment and order passed by the Court of Settlement at the instance of third party whose claimed, if any, is barred by the provision of limitation. Section 10 of the Ordinance specifically provides that except as otherwise provided in the Ordinance, the provisions of the Code of Civil Procedure shall not apply to a Court of Settlement and Sub-section (2) of Section 10 limits the area of the applicability of the Code of Civil Procedure. 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 thereof from any office; and issuing commissions for the examination of witnesses or documents. In such view of the matter a question stands on the way as to the entertainability of the application under Order 1 Rule 10 of the Code of Civil Procedure for adding the applicant as claimant to get release of abandoned property filed by other party making different pleading. Our view is “no”.
19
The Commissioner of Customs, Customs Excise and VAT Commissionerate Dhaka (South) Dhaka and others
Vs
Syed Nurul Arefeen
Md. Nasiruddin
Clause (2) of Article 102 of our Constitution empowers the High Court Division to interfere with any proceeding if satisfied that there is ‘no other equally efficacious remedy is provided by law.’ In view of the time frame prescribed by section 42(4) of the VAT Act it cannot be said that the remedy under section 42 of the Act is not efficacious. When there is a statutory provision to avail the forum of appeal against an adjudication order passed by the concern VAT Official then the judicial review under Article 102(2) of the constitution bypassing the appellate forum provided under the law is not maintainable.
20
Md. Taherul Islam (Tawhid) vs. The Speaker Bangladesh Jatiya Sangsad and others
In the 11th Parliamentary election, the newly elected MPs took oath on 03.01.2019 and on the same day the President realized that Sheikh Hasina, the newly elected MP in the said election, was commanding the majority support of the elected MPs and for such satisfaction of the president under the Constitution, he is not required to wait until the first meeting of Parliament. Therefore, the provision of Article 148(3) of the Constitution has been incorporated to maintain continuity of running the government for the best interest of democracy. In the 11th Parliament after being appointed Prime Minister on 03.01.2019, she determined as to who would be the Ministers, State Ministers and Deputy Ministers in her cabinet and, accordingly such MPs and some non-MPs were also appointed as Ministers, State Ministers and Deputy Ministers by the President in accordance with the Constitution. It is manifest from the above that “deeming clause” under Article 148(3) was incorporated just to facilitate the 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 restricting the same to be used for the said purpose only. The legislature deliberately created this legal fiction so that the next executive government can be formed and appointed by the President. The said intention of the legislature has been elucidated in Article 123(3) which states that member of Parliament shall not assume office as members of parliament except after the expiration of the term of the previous parliament. It denotes 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.
21
Durnity Daman Commission, represented by its Secretary.
Sariif Uddin
-Vs-
Md. Ahsan Ali and others
Durnity Daman Commission, represented by its Secretary and others
The situation that demands immediate action or is preventive or remedial, in those case one cannot wait for the proper application of principles of natural justice.
Termination clause in service rules is necessary for the purpose of managing and supervising the employees and maintaining discipline and order in the service. To maintain discipline and order in the service, sometimes it might be required to take quick and prompt action and set aside all the formalities. During that period, it is necessary that the rights of general interest are given priority over the individual interest. Hence, in such scenario the mandatory requirements of assigning reasons and providing adequate opportunity of hearing might be relaxed and decision can be taken without following them.
The efficiency and expediency and the necessity of running an office make it imperative to give the power to the employer to terminate the employment of employees but exercise such power should ensure fairness, avoid arbitrariness and malafide.
Mere harshness or unreasonableness or arbitrariness cannot be a ground to declare a law void or inconsistent with the provision of the Constitution. Since the order of termination of the respondent No.1 was not an order of termination simpliciter but the same was an order of dismissal in the guise of the order of termination so the same was liable to be declared void and the High Court Division rightly did so.
22
Bangladesh Bank, represented by its Governor, Bangladesh Bank Bhaban, Motijheel Commercial Area, Dhaka and another
Managing Director, United Finance Company Limited, Camellia House, 22, Kazi Nazrul Islam Avenue, Dhaka-1000
Managing Director, Social Islami Bank Limited, City Centre (19th Floor), 90/1, Motijheel C/A, Dhaka-1000
Vs
Homeland Footwear Limited, represented by its Managing Director, Mr. Amir Hossain and others
The borrower who takes over the management unencumbered can in no way be responsible of the previous liabilities which must be vested upon the previous management. In the instant case, the respondent no. 1, company did not avail any loan after the new management took over the charge of it so, as per the agreement and that of the order of the High Court Division staying the winding-up proceeding, they cannot be treated as defaulting-borrowers.
23
Government of Bangladesh, represented by the Secretary, Bangladesh Parliament, Sher-e-Bangla Nagar, Dhaka and others
vs
Md. Masud Rana
Courts power of judicial review on the proceedings of Parliament is not absolutely ousted. In certain facts and circumstance, in particular on the grounds of lack of jurisdiction or it being a nullity for some reasons such as gross illegality, irrationality, violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity, Court has the jurisdiction to exercise its power under judicial review. we are unable to accept the submission of Mr. Neogi that in cancelling the order of appointments of the writ petitioners, which were the result of corrupt, illegal and male practice, the principle of natural justice has been violated.
24
Shafika Chowdhury and others
vs
Badrul Amin @ Manu Sardar and others
The trial Court observed that it is difficult to accept that a responsible office of Sub-Registrar shall prepare and use its seal as “Office of the Sub-Register”. The word “Sub-Register” in the official seal of SubRegistrar created a doubt about the genuineness of the deed itself. Since it is the case of the defendants that the said deed is forged one it was the duty of the plaintiff to prove his deed upon calling the volume book from the concerned Sub- Registrar’s office but he did not take any such step. P.W.1, has failed to say the year of the execution and registration of the sale deed. Evidence on record clearly indicates that there was no previous acquaintance of the plaintiff with Nurer Rahman, admitted owner of the suit land which also made the execution of the alleged “bainanama” and sale deed and payment of consideration doubtful. 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.
25
Government of Bangladesh, represented by the Deputy Commissioner, Satkhira
It appears from the statements submitted by Hazari Lal Sarnaker of as per provisions under Article 7 read with Article 12 of the Bangladesh Land Holding (Limitation) Order, 1972 (Presidential Order No.98 of 1972) that he surrendered the suit land along with other lands the Government. Since the suit land was surrendered by its owner as excess lands to the Government under Presidential Order No.98 of 1972, we are of view that the right, title and interest and possession of the same has been vested in the Government free from all encumbrance. In view of the above provisions of law the Government became the absolute owner of the same. Thus, the subsequent transfer by the Hazari Lal Sarnaker in favour of the plaintiff in 1977 did not confer any title to it.
26
Md. Isaq Biswas and others
Vs
Abdus Samad Sheikh alias Abdul Hossain
The appellate Court mainly relied upon the weakness of the case of the defendants that they have failed to prove of the story auction sale and their alleged settlement but in order to get a decree for recovery of possession along with prayer for declaration of title the weakness of the defendants case cannot be a ground for getting decree the plaintiffs, particularly, when the plaintiffs failed to prove their possession in the suit land till their dispossession.
27
Abdul Halim Gaznabi and others
vs
M.M. Badsha Shirazi and others
The rent receiving interest of all the rent receivers were acquired with effect from 14.04.1956 under section 3 of the State Acquisition and Tenancy Act, as amended by East Bengal Ordinance No. III of 1956 in the District of Dhaka vide notification Nos.4826 LR to 4836-LR respectively, dated 2nd April, 1956, published in Dhaka Gazette extra-ordinary dated 2nd April, 1956 (part one). The instant lease deed was executed and registered on 21.12.1956, that is, after enforcement of State Acquisition and Tenancy Act. In such view of the matter, the submission to the effect that after enforcement of the State Acquisition and Tenancy Act, lessee became tenant under the Government does not seem to be justified. 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.
28
Mosammat Asma Khatun being dead his heirs: Md. Anisur Rahman and others
vs
Md. Abdul Karim being dead his heirs Rahman and others
The expression “date fixed for the performance” is a crystalized notion. When a date is fixed it means that there is a definite time fixed for doing a particular act. The date fixed for the parties for performance of the agreement should be ascertained on the basis of terms and conditions of the contract. In a case, where no time for performance was fixed, the court had to find out the date, on which, the plaintiff had noticed that the performance had been refused by the defendants. It was the attempt of the plaintiff to get benefit of the second limb of Article 113 of the first schedule to the Limitation Act. In that case, it was the obligation of the plaintiff to state the definite date of refusal in the pleading which is absent in paragraph 23 of the plaint.
The plaintiff did not comply with the terms and conditions of the alleged agreement for sale even if the same is accepted as genuine one. Non compliance of the mandatory condition itself disentitles the plaintiff from obtaining an equitable remedy for specific performance. Specific performance of contract is an equitable and discretionary relief to be given by the competent Court exercising the same judiciously. To get relief it is imperative upon the plaintiff to prove that there was agreement for sale and consideration was settled and pursuant to the agreement a considerable amount was paid out of settled consideration, the plaintiff has already performed or was always ready and willing to perform the essential terms of agreement which were to be performed by him. The Court shall Judge the conduct of the plaintiff having regard to the entirety of the pleadings as to the evidence brought on records.
29
Monoranjan Pal being dead his heirs 1(a) Jagonath Pal and others
vs
The Government of Bangladesh, represented by the Deputy Commissioner, Narayangonj and other
The defendants hopelessly failed to prove the source of title of Rukkhini Bala and Mohon Rajbongshi. In absence of any proof of source of title of the executants of those deeds, it is difficult to hold that the defendants had acquired any title on the basis of deeds dated 06.12.1962 and 25.01.1963.
It is settled principle that possession may primafacie raise a presumption of title. If at any time a person with title was in possession of the property, the law allows the presumption that such possession was in continuation of the title vested in him. The accepted proposition law is that possession follows title. Presumption of possession over an open land always is deemed to be that of the owner unless it is proved that he is a trespasser. In the eye of law an owner would be deemed to be in possession of a property so long as there is no intrusion.
30
Government of Bangladesh, represented by the Deputy Commissioner, Gazipur
vs
Gazipur Samabaya Krishi Khamar Ltd., represented by it Secretary
It was definite case of the plaintiff that no notice was served upon the Government and from the order passed by the learned then Subordinate Judge, Dacca it appears that there was no endorsement in any order that notice was duly served upon the defendant Government of the said suit and the Court was satisfied that the same was duly served. Rule 69 Civil Rules and Orders Volume-1 provides that Service should always be personal wherever practicable (Or. 5, r. 12) and the Courts ought not in ex-parte cases to act upon anything short of personal service until they are satisfied that personal service could not reasonably be effected.
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.
31
Mohammad Forman Ullah
vs
Kazi Mahmudul Hasan Ansari and others
It is a well-settled rule of interpretation that statutes are to be interpreted prospectively, unless the language of the Statutes makes them retrospective, either expressly or by necessary intendment. The license was a privilege created. The right or privilege accrued and prevailing pursuant to the previous law could not deprive that person by subsequent legislation. A vested right cannot be impaired by enacting law.
32
The Additional Deputy Commissioner
vs
Md. Kayem Ali and others
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, 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.
33
Din Mohammad
vs
Mofizur Rahman Miah and another
In a given case whether a decree was obtained by fraud or not, is a matter which is to be judged with reference to pleadings and evidence on record. No Court can be regarded as powerless to recall its own order if it is convinced that order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim. 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, we are 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.
34
Feroz Alom being dead his heirs: Faridul Alam and others
vs
Syed Akhlaque Hossain and others
The writ petitioners filed instant writ petition challenging the auction notice issued by a private bank, against which, the writ petition is not maintainable. It further appears from the materials on record that Syed Mojammel Hossain, predecessor-in-interest of the writ petitioner Nos.1-4 and writ petitioner No.1 himself were the directors of the loanee company and they are the owners of the disputed property in respect of which, mortgaged deed was executed and registered in favour of the Bank and that they, being the owners of the case property, cannot be treated as third party mortgagor. The writ petitioners filed the instant writ petition on 07.09.2014 but they did not challenge the auction though the same was held at about 3(three) years before filing of the instant writ petition.
35
Commissioner of Customs Excise and VAT, Customs, Excise and VAT Collectorate, Chittagong and others
vs
Abul Khair Steel Mills Ltd.
Fortified with the decisions as discussed above it is clear that the Tribunal shall only follow the procedure of the Custom Act only when the appeal presented to it with the required deposit under the VAT Act and with all the trappings of the custom Act as far as it is applicable. After filing of the appeal, it does not contemplate prevailing procedure of the appeal. That is to say requirement before filing to be construed as it is.
36
Government of Bangladesh, represented by the Deputy Commissioner, Gopalgonj and another
vs
Saleha Begum and others
Mokararee(মোকররী) right is nothing but a right of collecting rent on behalf of the superior landlord, which was not a tenancy or raiyati right and that right has been acquired by the Government after promulgation of State Acquisition and Tenancy Act.
37
Paschimanchal Gas Company Ltd.
vs
Manticore Technologies Ltd. and others
The appellant never made any promise to supply the gas to the writ-petitioner and as such question of legitimate expectation does not arise at all by virtue of the license issued by the Bangladesh Energy Regulatory Commission for Generation of Electricity in Ishwardi EPZ. No vested and legal right has been created in favour of the writ-petitioner. As such the direction upon the writ-respondents by the High Court Division to provide gas connection to the writ-petitioners is beyond the scope of law.
38
Habiba Banu and others
VS
Aftabullah
It is well settled proposition of law that a contract cannot be enforced against a bonafide transferee for value who has paid his money in good faith and without notice of the original contract. This protection is based on the English equitable rule which allows a later legal title to prevail over an earlier equitable title in the circumstances of a particular case.
Since the last Court of facts and the High Court Division upon proper appreciation of the evidence on record held that the contesting defendants are bonafide purchasers without notice of alleged agreement for sale, we are of the view that the suit has been dismissed rightly.
39
Md. Shafiullah Patwari
VS
Momin Mia and others
Since it has been observed by the appellate Court as well as High Court Division that the notice upon aforesaid pre-emption proceeding was not duly served upon one of the pre-emptees, we are of the view that the ex-parte order of pre-emption was fraudulent one as a whole. Ex-parte order which has been obtained by practising fraud cannot be sustained in law as a whole.
It is well settled principle that a decree or order obtained by playing fraud on the court is a nullity and non-est in the eye of law. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated and cannot be allowed to stand.
40
Laxmi Narayan Chowdhury
VS
Md. Harun Fakir
In a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details, he must go further and plead that he asked the defendant No.1 specifically to perform the agreement pleaded by him but the defendant did not do so. It is the duty of the plaintiff to prove that he has been and is still ready and willing to specifically perform his part of the agreement. It was the legal obligation to the plaintiff that he was, since the date of the agreement for sale, continuously ready and willing to perform his part of the agreement. If he fails to do so, his claim for specific performance must fail.
41
Md. Kamal Hossain and others
VS
Abdul Ahad and others
The trial Court as well as High Court Division in their judgments did not draw any such conclusion that plaintiff Azizan Bibi did not execute the kabla deed dated 23.10.1979, though it was the case of the plaintiff that defendant No.1 obtained her signatures on blank papers and created the kabla deed dated 23.10.1979 fraudulently. Since the plaintiff instituted the suit for cancellation of deed dated 23.10.1979, it is the duty of the plaintiff to prove that the sale deed was obtained fraudulently. None of the Court drew any conclusion that the plaintiff has been able to prove the allegation of fraud.
Since the Kabla deed dated 23.10.1979 was executed and registered, it is to be presumed that all the official acts were done accordingly.
The defendant Nos.1-2 instituted Title Suit No.1339 of 1981, in the 4th Court of the then Subordinate Judge, Dhaka against Government for declaration that the claim of the Government that the suit property is abandoned property was illegal and also for recovery of khas possession and the said suit was decreed on 02.03.1991 and upon execution of the said decree they took possession of the same. It was held by the Court of Settlement in Settlement Case No.80 of 1989 and 81 of 1989 dated 15.08.1995 that the property should not have been included in the list of abandoned properties and it ordered that the property was liable to be excluded from ‘Ka’ schedule of the abandoned building. The High Court Division was not justified in treating the said deed as void by assuming that the defendant appellants purchased the said land when the property was declared as abandoned property.
42
Haji Mohammad Kutubul Alam
vs
Md.Gousuzzaman and others
The Civil Courts, subject to the provision of the law, have jurisdiction to try all suits of civil nature except the suit of which cognizance is either expressly or impliedly barred. Unless the relevant statute entails a provision expressly or indicates by necessary implication that the jurisdiction of the Civil Court is excluded to try the suit, the Civil Court has jurisdiction to try the suit. In this case, the plaintiff sought for declaration that the impugned deeds are void along with some other reliefs. Only Civil Court is authorised to declare whether a deed is fraudulent and void or not. It is settled principle that exclusion of jurisdiction of civil Court should not be readily inferred. The tests to be applied to decide whether or not the Civil Court has jurisdiction are as under:
(i) Is legislative intention of excluding jurisdiction of Civil Court explicit or clear by necessary implication?
(ii) Does the statute provide adequate remedy in case of grievance against the order made under the statute?
The moment a waqf is created, all rights of property pass out of the waqif and vest in the Almighty. The Mutwalli has no right in the property belonging to the waqf. His position is merely that of a superintendent or a manager. A Mutwalli has no power, without the permission of the Waqf Administrator to sell waqf property or any part thereof. Authority of giving permission of the waqf Administrator is not absolute. He must follow the provision of law, contents of waqf deed, jurisprudence build up in this regard and welfare of waqf estate. He cannot accord permission when it is apparent that such proposal for transfer may cause harm to waqf property itself, consequence of which is ultimate damage and destruction of the property and object of the waqf.
43
Mohammad Harun-Or-Rashid
Vs
Syed Jahangir Alam
The contemnor in the instant case Syed Jahangir Alam has certainly committed contempt of court which cannot be viewed with impunity. In a very dirty and spiteful manner he had uttered those venomous words which do not call for any shred of sympathy far off to purge the same.
This hypocritical attitude which is ugly underbelly towards a judge of the Apex Court baffles us. Lest it turns into a horrendous repetition and fails to deter the public at large let us nip this unhealthy trend in the bud.
44
Secretary, Bangladesh Textile Mills Corporation and others
vs
Nasrin Sultana and others
Rule 42A does not give any authority to rehear an appeal under rule 31 of the Tenancy Rules, 1955 by the concerned Settlement Officer after publication of the final record-of-rights, as the such publication is conclusive evidence (rule 35) and thus, in the instant cases the Settlement Officer has acted illegally and without jurisdiction in re-hearing the appeals repeatedly.
45
Md. Abdul Hamid being dead his heirs: Md.Arju Hossain and others
vs
Mst. Sara Khatun and others
It is now well settled that the High Court Division in revisional jurisdiction has got the jurisdiction to interfere with the findings of fact of the courts below, if it finds error apparent on the face of record.
46
Government of Bangladesh and another
vs
Md. Nazrul Islam Biswas
The current charge given by a gazette notification cannot be termed or treated that the concerned officer will perform only day to day routine work, rather on the strength of such notification he has been vested all the administrative and financial power to be done in accordance with rules of business. Said current charge cannot be equated as a stop gap arrangement.
47
Uzzal Sarker
vs
Kutub Uddin and others
From the evidence, it reveals that to defeat the right of the pre-emptor the alleged transaction was made showing exchange. The High Court Division measurably failed to appreciate this aspect and thus, miscarriage of justice has been occurred.
48
Kohinur Begum
Vs
Most Majeda Khatun and others
In the plaint it has been categorically stated that on 09.05.1981 the pre-emptor came to learn the sale of the suit property when the opposite party No. 1 disclose the same which was corroborated by the P.W-1, P.W-2 and P.W-3. Being informed the pre-emptor filed the Miscellaneous Case on 06.07.1981 which is very much within the period of limitation. In view of above we hold that the trial court as well as the appellate Court below was correct in holding that the suit was not barred by limitation.
49
The Government of the People’s Republic of Bangladesh, represented by the Secretary, Ministry of Labour and Employment and others
vs
Mohammad Amirul Islam and others
In the instant case the contract between the parties is neither a constitutional contract nor a statutory or commercial contract and thus, there is no scope to enforce any terms of the contract invoking writ jurisdiction and as such the writ-petition was not maintainable.
50
Sree Chandan Das
vs
Sukhamoy Chakraborty and others
The ‘Sitakunda Shrine Committee’ cannot be termed or treated as a local authority or an autonomous body as the said body was not established by any law. It is a management committee of a private body, which is not performing any function in connection with the affairs of the Republic or of a local authority, as such the writ petition challenging the decision of the said private body is not within the ambit of local authority, which cannot be amenable in writ jurisdiction under Article 102 of the Constitution of the People’s Republic of Bangladesh and thus, the writ petition was not maintainable.
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