Code of Civil Procedure, 1908 [Order XLI - XLVII] | Case Reference

Order XLI

The High Court Division held that it is a settled principle of law that the appel. late Court below being final Court of fact will have to discuss and reassess the evidence of record independently while either reversing of affirming the finding of the trial Court. Chitta Ranjan Roy vs. Dhirendra Nath Roy (Mohammad Fa- zlul Karim J) (Civil) 6 ADC

The Code of Civil Procedure, 1908

During the pendency of the suit, the plaintiffs-respondents filed an application under Order-XL Rule 1 of the Code of Civil Procedure for appointment of receiver in respect of the suit land alleging that the plaintiffs-respondents are entitled to 91 bighas of land and, on the other hand, the defendants-petitioners and others are entitled to 182 bighas of land. Most. Umme Shaheda Akhter Rina vs. Ayub Ali (Syed Mahmud Hossain J) (Civil) 9 ADC 656

Order XL, Rule I- Appoint a receiver- Receiver should be appointed in a suit for partition with the consent of the parties, especially where the family property consists of land- 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, [9 LM (AD) 538]

Order XLI Rule 5

Stay

Mere filing of an appeal does not by itself give any automatic right to the appellant to get an order of stay of the operation of the impugned judgment or order or of the proceedings in question. It is purely discretionary with the appellate Court to grant such a relief on for a sufficient cause. If the operation of the order of temporary injunction is stayed till the disposal of the appeal, it simply means that there is not only no order of injunction in existence but also it virtually gives the appellant the final relief of the appeal pending adjudication. In the absence of any compelling reasons and that too for preventing an apparent injustice, the stay of operation of the impugned order. of temporary injunction pending decision in the appeal is not contemplated in law. A. Hamid Shah alias Hamed Shah Vs Basheruddin Shah and others, 19 BLD (HCD) 21.

 

Order XLI Rule 12

On plain reading of provisions of rule 12, it becomes clear that the appellate Court is required to fix a day for hearing the appeal unless it dismisses the appeal and in fixing such day, sufficient time should be given to the respondent to appear and answer the appeal’ on such day. The phrase ‘to appear and answer the appeal’ admits of one simple construct on, requiring the respondents to appear o the day fixed for hearing of the appeal under rule 16(2) and answer the points raised by the appellants in support of their appeal. So, rule 12 does not, in any way, empower and/or authorise the appellate Court either to allow a respondent to file a written statement for the first time in appeal or to accept such written statement. Narayan Chandra Saha and another Vs Jatindra Chandra Saha and others, 19 BLD (HCD) 614.

Order XLI, Rule 17- An appeal may not be disposed of on merit in the absence of the appellant- Where the appellate Court disposed of the appeal on merit in the absence of the appellant or his learned Advocate, this Division remanded the appeal to the appellate Court for fresh hearing on merit. In view of the above we find no alternative but to remand the appeal to the appellate Court for fresh hearing....Military Family Rehabilitation Officer, BDVS= Azad Ali Chowdhury, [10 LM (AD) 286]

Order XLI Rule 17

It has long been held that under Order 41 Rule 17 C.P.C the use of the word ‘may’ does not mean that it is open to the appellate court to dispose of the appeal on merits in the absence of the appellant.

In the instant case, the High Court Division heard the learned Advocate for the plaintiff, respondents only and did not know or could not know what possible could have been arguments of the defendant-appellant against the impugned judgment and decree of the trial court. The High Court Division ought to have either dismissed the appeal for default or ought to have adjourned it to some other date as it was a part-heard appeal or could have passed. other Orders but it was certainly not authorised to consider the appeal in the absence of the appellant and decide it on merits.

Government of Bangladesh, represented by the Deputy Commissioner, Dhaka and another Vs Waqer Ahmed and others, 19 BLD (AD) 230.

Ref: AIR 1929 Cal 475—Cited.

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

Order XLI Rule 19 & Section 151- To invoke the amended Rule 19A, the application for such re-admission is to be filed within 30 days of the date of dismissal of the appeal for default and the application is to be supported by an affidavit. If these two requirements, as provided in the proviso, are met only then Rule 19A could be applied to avoid delay and expedite disposal providing the court to directly re- admit the appeal without requiring to adduce evidence as required under Rule 19. Bangladesh =VS= Abdul Barek Bepari, [3 LM (AD) 93]

Order XLI, Rule 19A- Hearing of appeal from both the sides on merit without pronouncing judgment cannot dismiss the appeal for default- The law has provided the provision that judgment shall have to be pronounced in open Court at once or any other day and there is no room to dismiss the appeal for default. Therefore, the order of dismissal recorded while appeal was fixed for judgment by the learned Additional District Judge, 5th Court, Dhaka and judgment of the High Court affirming the same by the single Judge caused serious miscarriage of justice

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, [8 LM (AD) 74]

Order XLI, Rule 21- Dismissed the appeal for default- The impugned judgement and order of the High Court Division indicates non-consideration of all the attending facts and circumstances. The learned Advocate for the petitioners before us has pointed out that there was indeed another learned Advocate who was engaged at the appeal stage namely Mr. Foyzul Huq Biswas. Hence, it cannot be said that the appellants did not have any representative to deal with their appeal. We, therefore, find that the High Court Division was not correct in setting aside the order of the learned Additional District Judge, Bhola in Miscellaneous Case (Sani) No.1 of 2009 arising out of Title Appeal No.74 of 1993. ...Abdul Mannan Howlader =VS= Joinal Abedin, [10 LM (AD) 298]

Order 41, Rule 21

Finally the High Court Division observed that the petitioner in the Civil Rule No.80(5) of 1998 was a lessee of the property in suit from year to year and that no material was placed on record that he still is a lessee, nor any statement has been made to the effect that lease is subsisting. In the back- ground of the said fact the High Court Division held that the petitioner has no locus standi to file the application seeking re-hearing of the Second Appeal. The High Court Division also noticed that defendant No.8 did not appear in the Second Appeal nor he has challenged the judgment and decree passed in the Second Appeal. In the afore state of the matter the High Court Division, discharged the Rule. Noor Mohammad Biswas vs. Surendra Nath Mondal (Md. Ruhul Amin J) (Civil) 5ADC 578

Order 41, Rule 21

The High Court Division made the Rule absolute on the finding that the opposite party failed to make out a case that the heba was not acted upon. Md. Syed Badrud Doza vs. Tawfiq Hasan and another (Md. Ruhul Amin J) (Civil) 4 ADC 667

Order XLI, Rule 23- 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, [4 LM (AD) 268]

Order 41, Rule 23 

High Court's power to remand to the courts below is not limited to cases covered by order 41 rule 23 of the Code of Civil Procedure. A remand may be made even in exercise of inherent jurisdiction under Section 151 of the Code of Civil procedure. But remand should not be made to cure any defect or filling up any lacuna in the standers of the parties. Superintendent Engineer, Jangalia, Comilla vs MIs. Madhumati P.D.B. Cinema Lid Comilla (Civil) 1 ADC 131

Order 41 rule 25

There was an agreement between him and the defendant for transfer of defendant's property for TK. 14,00,000.00 out of which the defendant received TK.5,00,000.00 as earnest money on condition that the defendant would execute and register the sale deed within six months on receipt of the balance consideration from the plaintiff; Subsequently, on 20.10.1997 defendant received another sum of TK.20,000.00; that the defendant did not take step for executing and registering the sale deed in favour of the plaintiff and as such, a legal notice was issued to the defendant which was replied to; agreement was not denied; that the defendant gave possession of the property in schedule to the plaintiff at the time of execution of the agreement and the plaintiff spent TK.2,00,000.00 for making improvement; that the plaintiff is always ready and willing to pay balance consideration as stipulated and by her reply to the legal notice, the defendant refused to execute and register the sale deed, whereupon the plaintiff was constrained to institute the suit. Salma Parveen vs. Md. Amir Hossain (Mohammad Fazlul Karim J) (Civil) 8 ADC 293

Order XLI, Rule 27- 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, [1 LM (AD) 385]

Order XLI Rule 27

It further appears that respective C.S. khatians as well as S.A. khatians were not produced in the Courts below and that the defendants produced 15 regis- tered deeds and series of rent receipts in supported of their claim but the Courts below did not consider those docu- ments. The High Court Division remanded the suit for hearing afresh giving the parties opportunity to pro- duce of those relevant khatians. It is well settled that the appellate Court has the authority to consider the case after recording additional evidence if those are found to be required for proper adjudication of the matter in dispute upon fulfilling the provisions provided in Order LXI Rule 27 of the Code of Civil Procedure. .......(7)

Considering the aforesaid facts and cir- cumstances, we are of the view that instead of sending back the case to the trial Court the same may be sent to the appellate Court on remand. Accordingly, the case is remitted to the Appellate Court and the appellate Court is directed to consider the appli- cation for additional evidence, if the same is so filed, following the require- ments of the provisions of Order XLI Rule 27 of the Court of Civil Procedure. ......(8)

Md. Abdus Salam vs. Saleha Khatun (Hasan Foez Siddique CJ) (Civil) 20 ADC 98

Order XLI rule 27

Filed the instant suit for partition claim- ing a saham for 4.03 acres out of the suit-land. The suit was contested by the defendant Nos. 1, 4, 5 and 2, 10 to 13 by filing separate set of written statements. Abdur Razzak vs. Md. Habejuddin (A.B.M. Khairul Haque J) (Civil) 7 ADC 336

Order 41, Rule 27(1)

 It is clear that this power can be exercised only where the court requires further evidence for one of the two cause specified in the rule. None of these requisites was fulfilled in this case. The permit the defendants to adduce additional evidence at the appellate stage would only amount to giving them an opportunity to fish out evidence in order to prove their case and make up the lacuna which, at the present moment, exists. In our opinion the lower appellate court did not commit any error of law in rejecting the prayer for addition- al evidence in the facts and circum- stances of the case. It was, therefore, not proper for High Court Division to interfere with the concurrent decision of the two courts below and send back the case to the lower appellate court for disposal of the appeal on merit...........(9) Mohammad Ali Akhand vs Bahatan Nessa Bewa (Bimalendu Bikash Roy Choudhury J) (Civil) 2ADC 195 

Order XLI, rule 31- The Appellate Division found that the High Court Division did not say anything on the merit of the case. Appellate Division sent back the case to the High Court Division for hearing afresh.

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, [1 LM (AD) 162]

Order XLI, Rule 31- It also appears the appellate Court failed to appreciate that the even though the stolen trees were recovered from the possession of Ahamedullah, the purchaser of Lot No.10, no case was filed against Ahamedullah and further no cases were also filed against the purchasers of the contiguous plots. We are of the view that the High Court Division on proper consideration of the evidence and the materials on record made the Rule absolute. The learned counsel for the appellant also could not point out any illegality or infirmity in the decision of the High Court Division so as to call for any interference. Cox's Bazar Divisional Forest Officer =VS= Abdur Rahim Chowdhury, [5 LM (AD) 379]

order XLI Rule 31

The appellate Court below without adverting to the points upon which the trial court dismissed the suit reversed the same which is certainly not a prop- er reversal of judgment and decree on the part of the appellate Court. It has arrived at a decision absolutely in a slipshod and cryptic manner. This is not at all a reversal in terms of Order XLI Rule 31 of the Code of Civil Procedure. ..(13)

The object of Rule is to ensure that the appellate Court does not act mechani- cally and that it comes to the decision upon independent consideration of the materials on record of course in keep- ing with the Rule. .....(16)

Most. Shahera Khatoon vs. Hoshne-ara Banu (Md. Ashfaqul Islam J) (Civil) 20 ADC 94

Order XLI, rule 31

The plaintiffs' claim is that the land de- scribed in the first schedule land along with other lands measuring 69 acre originally belonged to Abdur Rahim. By a registered deed dated 22.03.1972, the defendant No.1 Sayedullah and his brother Saif Ullah purchased the said land which was jointly possessed by them. On 09.11.1985 the land was partitioned and as a result each brother got 3412 acre of land. On 10.11.1985 Saif Ullah executed a bainapatra in favour of the plaintiffs in respect of . 1534 acre of land and by four registered deeds dated 14.11.1985, 16.11.1985 and 07.01.1986 transferred the land and delivered possession thereof. Md. Masuk Miah vs. Md. Foyzur Rahman (Muhammad Imman Ali J) (Civil) 9 ADC 242

Code of Civil Procedure [V of 1908] 

Order 41 rule 31-The appellate Court being final Court of fact will have to discuss and re-assess the evidence on record independently while reversing the findings of the trial Court.

The High Court Division held that the trial Court by well reason judgment found the title of the plaintiff in the suit land and found the possession of the plaintiff and subsequent dispossession but the appellate Court without reversing the finding of the trial Court regarding title and possession by short finding of his own reversed the elaborate findings of the trial Court without any reasoning which is contrary to order 41 rule 31 of the Code of Civil Procedure. The appellate Court being final Court of fact will have to discuss and re-assess the evidence on record independently while reversing the findings of the trial Court. But in the instant case the appellate Court in his judgment referred the argument of the learned lawyer of both the parties extensively but his finding regarding the acceptance or disagreeing with the findings of the learned advocate are very short without having elaboration and as such the finding of the appellate Court is not supportable. Hazi Moulul Hussain and others -Vs- Hazi Hasib Ullah and others (Civil) 15 ALR (HCD) 257-261

Code of Civil Procedure [V of 1908] 

Order 41 Rule 31 and Order 20 Rule 5

Whether the High Court Division committed a serious error in finding that the suit itself is maintainable without controverting the concurrent findings of the Courts below on the point of maintainability by giving any cogent reason. The learned Counsel further submitted that both the Subordinate Judge as well as the Assistant Judge on proper consideration of evidence and materials on record exhaustively on all material issues dismissed the suit in compliance with the provision enunciated in Order 41 Rule 31 and Order 20 Rule 5 of the Code of Civil Procedure. The learned Counsel lastly submitted that the findings of the High Court Division itself is ambiguous as in one hand it has directed the trial Court to write down a fresh judgment on the basis of the materials on record which he found sufficient and on the other hand made room for either parties to produce further evidence if it considers necessary and the same will definitely prolong the litigation among the parties for decades together inasmuch as the order of remand is designed to give a chance to fill in the lacuna in the plaint case. Dhirendra Nath Mondal and others. -Vs- Narayan Chandra Mondal and others. (Civil) 17 ALR (AD) 61-65

Code of Civil Procedure [V of 1908] 

Order 41 Rules 31 and 33 read with

Evidence Act [1 of 1872]

Section 101-103-The High Court Division observed that the courts below omitted to discuss any evidence, oral or documentary, in arriving at their respective decisions and they utterly failed to record any minimum findings on the prime question of the plaintiffs possession in and dispossession from the suit land. More so, the trial court illegally shifted the entire burden of proof solely on the plaintiff in flagrant violation of the fairly settled rules of evidence as embodied in Section 101-103 of the Evidence Act.

The High Court Division held that although the defendants claimed title to the suit land as the successive heir of Dasharat Rudra Paul, it appears from Ext. 4 that Ram Kumar is the son of Gangaram Rudra Paul and accordingly, the father-son relationship between Dasharat and Ram Kumar is not established and no cogent evidence having been led from the defendants' side to contradict the said Ext. 4, their defence falls apart and as such their claim of title to the suit land by inheritance from Dasharat Rudra Paul seems to be false. Moreover, the oral evidence supports the plaintiff's case that his maternal grandmother Nani Bala and mother Binoda Sundari Paul inducted the defendants' paternal grandmother Basant Kumari Paul in the suit land as a mere licensee or permissive possessor and hence, they cannot set up any plea of title against the plaintiff, rather liable to surrender vacant possession of the suit land in favour of the plaintiff. Parimal Chandra Paul Vs. Chandan Chandra Paul and others (Civil) 15 ALR (HCD) 152-158 

Fact judicially noticeable need not be proved

Fresh Suit against the decision of the Artha Rin Adalat

14 BLC 204: Syeda Bibi & others Vs. Helaluddin alias Mansur Ali & others: Order 41 Rule 31 of the Code of Civil Procedure read with Section 28 of the Limitation Act, 1908 read with Section 56 of the Evidence Act, 1872: The learned Subordinate Judge, Nawabganj ought to have considered the facts and circumstances of the case as well as section 56 of the Evidence Act wherein it has been laid down that fact judicially noticeable need not be proved and no fact of which the Court will take judicial notice need be proved. The learned Subordinate Judge, Nawabganj ought to have discussed and considered the material facts of the case that the defendant has been in possession of the suit land more than 60 years ago without any disturbance and the RS Khatian also prepared in the name of the defendant which creates a claim of right of adverse possession. (Para- 12, Mr. Justice SAKM Dabirush-Shan). Ref: 36 DLR(AD)261, 47 DLR(AD)162, 49 DLR(AD)61, 1997 BLD(AD)58-2 BLC(AD)100.

Order 41 Rule 33

Respondent has submitted regarding the immunity of the respondent to be used in our Courts, for which the suit is not maintainable. The question of immunity is a mixed questions of law and fact and the material has to be produced by way of averments in the written statement and thereafter the materials are required to be considered in the light of the evidence in the suit and a decision should be arrived at accordingly. Ismet Zerin Khan vs The World Bank (Mohammad Fazlul Karim J) Civil 117

 

Order XLI, Rule 31

The appellate court whether reversing or affirming the decision of the trial court must independently consider the evidence on record. But in the case of affirming the findings of the trial court, the narration of the entire evidence and reiteration of the reasons given by the trial court are not essential. In such a case expressions of general agreement with those of the trial court are generally considered sufficient. But in the case of a reversal of the judgment, the consideration of the evidence, of necessity, has to be thorough and more elaborate. Rustam Ali Dhakua Vs. Abdur Rahman, 14 BLD (AD) 229.

Ref: (1947)1 All.E.R.582, A.I.R.1967 (SC) 1124.

 

Order 41 Rule 31 of the CPC

Against the plaintiff is illegal, collusive and without any basis and jurisdiction and the plaintiff is not liable for the stolen trees on the averments that he auction purchased the forest trees of certain area.

Any allegation that the plaintiff himself committed the theft or in what way or manner the plaintiff is connected with the alleged theft and moreover the appellate court has not reverted the find- ing of the trial court as required under Order 41 Rule 31 of the C.P.C. The High Court Division further held that because of non reading and misreading of the evidence on record the judgment of the appellate court suffers from illegality and the learned Assistant Attorney General also failed to convince the Court that the fine can be legally imposed upon the plaintiff in terms of the agreement of lease. It also appears the appellate Court failed to appreciate that the even though the stolen trees were recovered from the possession of Ahmedullah, the purchaser of Lot No. 10. no case was filed against Ahmeduullah and further no cases were also filed against the purchasers of the contiguous plots. The Divisional Forest Officer Cox's Bazar vs. Abdur Rahim Chowdhury and others (Md. Tafazzul Islam J) (Civil) 4ADC 292

Order XLI Rule 21

No useful purpose will be served if the rehearing application is allowed and the appeal be re-heard and no different view other than the views taken in allowing the appeal.

Md Shamsul Huda and another Vs Abdul Khaleque, 20 BLD (HCD) 482.

 

Order XLI Rule 19

Waqf Ordinance, 1962, Section—43

From a consideration of the provisions of the Code as well as section 43 of the Waqf Ordinance it appears that as the District Judge as contemplated under section 43 of the Waqf Ordinance is not a persona designata but a Court and as it is a Court of civil nature, the provisions of the Code of Civil Procedure is very much attracted in the instant case and accordingly the provisions of Order 41 Rule 19 of the Code is available of the respondents.

Aminul Haque Shah Chowdhury alias Aminul Shah Chowdhury Vs Abdul Wahab Shah Chowdhury and others, 19 BLD (AD) 267.

Ref: 43 DLR (AD) 128 —Not applicable.

 

Order XLI rule 23

Remanding a case to the trial Court for fresh decision in the suit, after making necessary amendment of the plaint, and allowing the parties to adduce fresh evidence to fill in a lacuna .of the pleadings of the parties, is not the intent and object of an order of remand under order 41 rule 23.

Akitullah and others v. Zafala Begum and others, 22 BLD (AD) 105.

Ref: Dr. Razia Khatun v. Bhanu Guha and others 1986 BLD(AD)135.

 

Order XLI Rule 27

Suit remanded to the Appellate Court to consider Ext. A for enabling the plaintiff to admit they said document in the suit as additional evidence under Order 41 Rule 27 of CPC, The provision of remand should not be exercised to cure any defect or filling up any lacuna in the pleadings of the parties but in order to decide the material issues in the suit, order of remand is imperative.

Superintendent Engineer (Distribution), Power Development Board, . Jangalia, Comilla and others. v. MIs Madhumati Cinema ltd, Comilla & ors, 22 BLD (AD) 242.

Ref: Ghaznavi Vs. The Allahabad Bank Ltd. AIR 1917 Calcutta 44; Surinder Kumar and others Vs. Gian Chand and others, AIR 1957 SC 875.

 

Order XLI Rule 27(1)

Order 41 rule 27(1) of the Code empowers the appellate Court to admit additional evidence only where the Court requires further evidence for one of the two causes specified in the rule. In the absence of any such cause the appellant cannot be permitted to adduce additional evidence at the appellate stage as it would only amount to giving him an opportunity to fish out new evidence for improving his case by filling up the lacuna therein. Mohammad Ali Akhand Vs. Bahatan Nessa Bewa and others, 18 BLD (AD) 50.

 

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

Order XLI Rule 33

Power of the appellate Court

The plaintiff filed the suit for declaration of her title in the suit property and for recovery of possession therein with a further prayer for declaring the disputed kabala as forged and void. The trial Court decreed the suit and the appellate Court affirmed the decree. But the learned courts below/passed the decree without formally declaring the disputed kabala as forged and fabricated. The High Court Division had recourse to the provision of Order XLI Rule 33of the Code and removed the accidental mistake and declared the disputed Kabala void and cancelled.

Md. Azimuddin Pramanik alias Azimuddin Pramanik and others Vs Jayeda Bibi and another, 17 BLD (HCD) 466.

 

Order XLI Rule 5(1)

Stay by appellate court

Under Order XLI Rule 5(1) of the Code of Civil Procedure the appellate Court has power to pass an order of stay of the impugned order or judgment in an appropriate case without hearing the other party at the time of admission of the appeal.

Md. Reza Vs. Executive Engineer, Facilities Department, Noakhali and others, 18 BLD (HCD) 272.

Ref: 31DLR(AD)319; 35DLR25; AIR 1933 (Born) 118; AIR 1920 (Pat)567—Cited.

 

Order XLI Rules 23 and 24

Remand of a case by the appellate Court

Where evidence on record is sufficient, the appellate Court should determine the appeal finally.

When the defendant did not contest the suit and did not adduce any evidence in the trial Court, though he filed written statement, there is no scope for sending back the case on remand to the trial Court for giving an opportunity to the indolent appellant to prove his case. Where the evidence on record is sufficient for disposal of the appeal on merit, the appellate Court is required under Order XLI Rule 24 of the Code to finally decide the appeal itself. It is the settled principle of law that an order of remand cannot be granted as ‘a matter of course just on the seeking of party.

Md. Fashuddin Mondal Vs. Khejmatu1lah, 16 BLD (HCD) 393.

Ref: 1990 BCR(AD)63 — Cited.

 

Order XLI Rule 31

Contents of Judgment by the appellate Court

The trial Court while disposing of the suit framed as many 8 issues and answered all these issues with reference to evidence. The appellate Court being the final Court of fact failed to come to his own independent findings on those issues on the basis of the evidence on record and thereby committed an error of law in not complying with the mandatory provision of Order XLI Rule 31 C.P.C.

Amirunnessa and others Vs Abdul Mannan Howlader and others, 17 BLD (HCD) 251.

 

Order XLI Rules 23 and 24

When the evidence on record is sufficient to enable the appellate Court to decide the appeal on merit there is no justification in sending back the case on remand to the trial Court for a fresh decision on the basis of the evidence already on record. Under such circumstances the order of remand tantamounts to shirking of responsibility by the Court of appeal below.

Mustafa Kamal Bhuiyan and others Vs Musammat Lutfunnahar Begum and 67 others, 17 BLD (HCD) 311.

Ref: 21CWN 877 (FB); 6 DLKR(FC) 33; 17 DLR(SC) 392; 1980 BSCR 457; 6BLD (Ad) 156; 6 BLD(AD) 135; 43 DLR(AD) 125;—Cited.

 

Order XLI Rule 31

The object of Rule 31 of Order 41 C.P.C. is, to see that the Appellate Court acts judicially and considers the case in its entirity with the consciousness of relevant points which arise for adjudication before him.

Law does not authorise him to act callously or mechanically. Judgment of the appellate court must be adequate and satisfactory and it must contain findings of his own on all questions involved in the appeal with reference to the evidence on record.

Dr. Ibrahim Hossain Vs. Mosammat Abeda Khatun and ors, 14 BLD (HCD) 346.

 

Order XLI Rule 31

Judgment of reversal

In a suit for specific performance of contract the primary question before the Court is whether the plaintiff has been able to prove the genuineness of the agreement by producing cogent, reliable and independent evidence. The material findings of the trial Court that the agreements were genuine and consideration passed pursuant thereto were not reversed by the lower appellate Court as the final Court of fact while reversing the judgment of the trial Court and consequently it is to be held that it is not a proper judgment of reversal.

Jahanara Begum Vs Md. Aminul Islam Chowdhury and others, 17 BLD (AD) 195.

 

Order XL Rule 1

Under the provisions of Order XL Rule I C.P.C. the Court may appoint a receiver of any property when it appears to it to be just and convenient for the protection of the property or prevention of any possible injury to it. 1t is essentially a discretion of the Court but such discretion must be exercised judiciously according to sound judicial principles. The applicant must show a prima facie case and good chance of his success in the suit. No order for appointment of receiver should be passed to deprive a defacto possessor of the property as sub rule (2) of Rule I of Order XL C.P.C. does not authorise the Court to remove from the possession of property any person to whom any property to the suit has not a present right so to remove.

Kamiruddin and others Vs Md. Mokshed Au Biswas and others, 16 BLD (AD) 91.

 

Order XLI Rule 24 and Order 6 Rule 17

When the trial Court as well as the appellate Court found that the plaintiff had failed to prove her title in the suit land on the basis of the alleged settlement and she having not made any case of adverse possession in the plaint and having not led any evidence to establish it, the High Court Division was wrong in remanding the case to the trial court for giving an opportunity to the plaintiff to amend the plaint for making out a new case of adverse possession by adducing fresh evidence.

Golam Rahman Vs. Hazera Khatun, 16 BLD (AD) 166.

 

Order XLI Rule 5 read with order XLIII Rule 2

Execution of a decree or an order shall not be stayed automatically by reason only of an appeal having been preferred from any decree or order and the same having been admitted, the appellate Court can stay in an appropriate case.

Zakaria Hossain Chowdhury Vs The City Bank Limited and others, 21 BLD (HCD) 170.

Ref: Shah Wali Vs. Ghulam Din alias Gaman and Muhanmiad, 19DLR SC 143; Bangladesh and another Vs. Md. Salimullah and others 35 DLR—Cited

 

Order XLI Rule 31

While reversing the Judgment of the trial Court the appellate court is required to advert to the material findings made by the trial court on consideration of the evidence on record. When the findings of the appellate court on material facts are not supported by the evidence on record, the judgment of the appellate court cannot be sustained.

Abu Taher and others Vs. Sharifa Be- gum and others, 15 BLD (AD) 91.

 

Order XLI Rule 31

Contents of a judgment

The judgment of the appellate court must contain:

(a)  The points for determination

(b)  The decision thereon

(c) The reasons for the decision and

(d)  Where the decree appealed from is reversed or varied, the relief to which the Appellant is entitled.

The object of Rule 31 of Order 41 C.P.C, is to see that the appellate Court does not act mechanically in concurring with the findings of the trial court. The appellate Court is required to independently discuss and consider the material evidence on record for coming to independent conclusions on all important points and issues. It is all the more necessary when the appellate Court reverses the judgment of the trial court. In case of a reversal, the appellate court must expresses opinion on all points on which the trial court based its conclusions.

Nazir Ahmed Saial and others Vs. Abdul Kader Mallik and others, 15 BLD (HCD) 463

Ref: Anwar Hossain and others Vs. Abul Hossain Mollah and others, 44 DLR (HCD) 79; Dr. Ibrahim Hossain Vs. Mosammat Abeda Khatun, 14 BLD (1994) page 346- Cited.

 

Order XLI Rule 31

It requires that the appellate Court whether reversing or affirming the -judgment of the trial court must independently discuss and consider the material evidence on record. In a case of affirming the findings of the trial court, the narration of the entire evidence and reiteration of the reasons assigned by the trial Court are not essential but in the case of a reversal, the consideration of the evidence must be thorough and elaborate.

Kalyan Krishna Goswami Vs. Madhya. para High School and another, 15 BLD (HCD) 509.

 

Order XLI, Rule 21

It enjoins a duty upon the Appellate Court to discuss and consider the evidence led by the contending parties; on all material points and issues and to give his reasons and decision thereon. Mere saying, “there was nothing wrong with the finding of the trial Court’ does not satisfy the requirement of law. The Judgment of the Appellate Court must indicate that the learned judge has applied his mind to all salient facts and points for determination.

Dewan Mohammad Safar Ali and others Vs. The People’s Republic of Bangladesh, 14 BLD (HCD) 92.

 

Order XLI, Rule 31

Judgment of the appellate court

It must contain the points for determination, the decision thereon and the reasons for the decision.

While reversing the decision of the trial court, the appellate court is required to reverse the material findings of the trial court with reference to the evidence on record. Abrupt findings without any reference to the evidence on record are not sustainable in law

Shashikanta Roy Vs. Khitish Chandra Roy and others, 15 BLD (HCD) 96.

 

Order XLI Rule 27

Production of additional evidence in the appellate Court

Additional evidence may be allowed at the appellate stage only if the court finds it necessary for the pronouncement of a proper judgment or for any other substantial cause. At any rate, it must be the necessity of the court and not of a party. The provision of Order 41 Rule 27 does not enjoin the Appellate Court to give reasons for refusing additional evidence. On the contrary, the Appellate Court has to state reasons for allowing additional evidence.

Md. Serajul Islam Vs. Sree Binoy Bhusan Chakraborty and others, 15 BLD (HCD) 241.

 

Order XLI Rules 27 and 29 Additional Evidence

Under Order 41 Rule 27 C.P.C. the appellate court is competent to take additional evidence, even suo motu if after going through the evidence it finds that additional evidence is necessary for writing out a proper judgment. But an application for adducing additional evidence cannot be entertained before the appellate court enters into evidence and finds some inherent lacuna or deficiency in the evidence on record standing in the way of a proper judgment. But at any rate, the need for additional evidence must be felt by the court itself. This discretionary power requires to be exercised judicially.

Rule 29 of Order 41 provides that the appellate court must specify and record the point or points to which additional evidence is to be confined.

Begum Syeda Noor Vs. Md. Kadam Ali Bhuiyan and others, 15 BLD (HCD) 432.

Ref: 45 DLR 362; 9 DLR(PC) 682 and 36 DLR(AD)220-Cited.

 

Order XLI Rule 27

Additional evidence in appellate Court

When conditions under which an application for adducing additional evidence can be allowed are absent the appellate Court cannot allow additional evidence. An application for, additional evidence can be allowed only when the appellate Court finds it necessary to pronounce a proper judgment or for any other substantial cause.

Daulat Chandra Gope alias Mrityunjoy Gope Vs. Mosammat Monowara Be gum, 16 BLD (AD) 251.

 

Order XLI Rule 31

Contents of judgment of the appellant Court

The appellte Court as. the final court of fact while reversing the finding of the trial Court ignores the oral evidence of the parties, does not arrive at any finding on possession, far less reversing the trial Court’s finding thereon, and fails to discuss the anomalies found by the trial Court with regard to exhibited documents and surmises that plaintiff’s heirs being minor and a lady it was not possible for the adversary to arrange fraudulent entries in Auction Registrar, such an order of reversal is not contemplated in law. The case is remanded to the appellate Court for rehearing the appeal in accordance with law.

Narayan Chandra Dey Vs. Ali Azam Sarder, 16 BLD (AD) 271.

 

Order XLI Rule 31

Trial Court’s findings should not be easily disturbed as a matter of course and before reversing the findings and decisions of the trial Court, the appellate Court should think twice or more than twice.

Md Monir Hossain and others v. Md Shamsul Hoque Mondal and others, 22 BLD (HCD) 509.

Ref: Sadequr Rahman Chowdhury Vs. Mvi. Abdul Ban, 22 DLR 858; Chitta Ranjan Sutar Vs. Secretary, Judicial Department, Government of East Pakistan, 17 DLR 451; Md. Badruddin Khan Vs. Bangladesh and others, 36 DLR(AD) 52; Jahed Ali  Mondal Vs. Jamini Kanta Dey, 7 BLD(AD) 156.

 

Order XLI Rules 24 and 31

The court of appeal below being the last court of facts is required to consider the material evidence on record, both oral and documentary, and thereafter either to affirm or reverse the judgment of the trial court after assigning reasons therefor. The court of appeal below merely shirked its responsibility in sending back the case on remand to the trial court without itself deciding the appeal on merit on the basis of the evidence on record. The action of the Court of appeal below is deprecated and the case is sent back on remand to it for deciding the appeal on merit on consideration of the evidence on record.

Benode Behari Mondal Vs. Arabinda Sarder and others, 16 BLD (HCD) 93.

 

Order XLI Rule 31

A Court of appeal acts illegally and shirks its responsibility when it allows an appeal without discussing and considering any evidence adduced by the contending parties and considered by the trial Court and that too without reversing any of the findings made by the trial Court with reference to the evidence on record.

Mahmudul Huq and others Vs Nowab Au Chowdhury and others, 16 BLD (HCD) 195.

 

Order XLVII Rule 1—Review

In view of the paramount consideration that there should be an end to litigation, the Court will be reluctant to entertain an application for review unless it is covered by the provisions of Order 47 Rule.1 of the Code of Civil Procedure.

Halima Zaman and others Vs. Govt. of Bangladesh, 18 BLD (HCD) 296.

Ref: 21DLR(SC)46; 31DLR(AD)266; 36 DLR (AD)108; 16BLD(AD)9: 48DLR (AD) 178—Cited.

 

Order XLVII Rule 1—Review

Order 47 Rule I CPC contemplates review of a judgment or an order under specified conditions: (1) on discovery of new and important matter or evidence which was not known to or could not be produced by the petitioner before, (i) on account of some mistake or error apparent on the face of the record or (iii) any other sufficient reason. Unless a prayer for review is based on the grounds mentioned above, the Court will not sit on the matter again for a re-hearing or further hearing which is already concluded by decision.

Basharatullah, being dead his heirs: Fazle Karim and others Vs. Government of Bangladesh and others, 16 BLD (AD) 9.

Ref: PLD 1962 (SC)335; 4ODLR(AD) 23; 44DLR (AD) 1 ;—Cited.

 

Order XLIII rule 31

Without adverting to the materials on record and on the basis of surmises, an appellate court should not shirk its responsibility by sending a suit on remand for fresh trial. On revisional application, if the Court finds sufficient materials on record, it can dispose of the suit on merit without remanding to the appellate court or trial court.

In the instant case, as the plaintiffs have no title to the suit property, as determined in a suit filed by their predecessor and upheld by the Appellate Division, and have thereby become trespassers, they are not entitled to any relief against the true owners. Therefore, the plaintiffs’ suit for permanent injunction against the defendants from interfering with their possession of the suit property is not maintainable.

Shaharbanu and another v. Lailun Nahar Ershad and others, 22 BLD (HCD) 325.

Ref: Hussain Ahmed Chowdhury alias Ahmed Hossain Chowdhury and others v. Md. Nurul Amin and others 47 DLR(AD)162; Chand Mohammad Mondal v. Rayezuddin Ahmed and others 1ODLR193; Sangawwa and others v. Yemnappa and another AIR 1980 Kamataka 220; Khairunessa, being dead, her heirs, Feroz Alam and others v. Zobaida Nahar alias Zharna and others 49 DLR(AD)77; Safaruddin and others v. Fazlul Huq and others 49 DLR(AD)151; Salam Khatum and others v. Zilla Parishad, Chittagong, represented by its Secretary and others 51 DLR (AD) 257.

 

Order XLVII Rule I Review

Review of an order made in a case pending before the Artha Rin Adalat is not permissible in law.

Uttara Bank Ltd. Vs. MIs. Gold Hill Tobacco Complex Ltd. and others, 15 BLD (HCD) 329.

Ref: Sultan Alam alias S.A. Badal Vs. Rupali Bank, 46 DLR 292; Sultana Jute Mills Ltd. Vs. Agrani Bank, 14 BLD(1994)(AD) 196—Cited.

 

Order XL VII Rule 1

It is a well-settled proposition of law that the right to review is a substantive right but this power is not an inherent power. Such a power must be conferred by law either specifically or by necessary implications. A review under Order 47 Rule 1 C.P.C. does not lie before the Artha Rin Adalat.

Sultan Alam @ S.A. Badal. Vs. Rupali Bank Ltd. and others, 14 BLD (HCD) 297.

Ref: 44 D.L.R.(AD) 40; A.I.R. 1940 (PC) 167; A.I.R. 1973 (SC) 1016; II BLT (AD) 23.

 

Order XLVII Rule 2

Review on grounds other than the discovery of new and important matters or the instance of any clerical mistake or error apparent on the face of the decree specified in Rule 2 of order XLVII CPC is not contemplated by law.

A successor Judge is incompetent to hear a review application if it was not filed before the Judge who had passed the order Sought decree to be reviewed. Deputy Commissioner, Jamalpur, and others Vs. Md. Nurul Hossain and another, 13 BLD (AD) 225.

Order 47, Rule 1 

Seeking decree for permanent injunction and for declaration that the property in suit is not enemy property i.e. vested property. Provision of the law relating to review that an application for review is entertainable from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by a party at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. Matiar Rahman being dead his heirs vs. Assistant Custodian of Enemy Property Lands (Md. Ruhul Amin CJ)(civil) 4 ADC 991

For a declaration that the decision of the authorities in renewing his lease in respect of only half of the suit land was void, inoperative and not binding on him and he was entitled to the renewal of the lease in respect of the entire suit land alleging, inter alia, that the suit land originally belonged to Tokani Chowdhury and others. Md. Serajul Islam vs. Shaikh Hayet Ali and others (Md. Joynul Abedin J)(Civil) 4 ADC 1001

Order XLVII, rule 1

Being aggrieved by that judgment and order of the Administrative Tribunal this petitioner filed appeal before the Administrative Appellate Tribunal. The Administrative Appellate Tribunal also, after hearing the petitioner, found the case barred by limitation and dismissed the appeal. The petitioner thereafter filed the above mentioned Civil Petition for leave to Appeal No.529 of 2008 be- fore this Division. Md. Juhaque Ali vs. Government of Bangladesh (Nazmun Ara Sultana J) (Civil) 9 ADC 777

Order 47 Rule 1

The Government made the order of re- lease as per provisions of section 12 of the Abandoned Property (Supplementary Provisions) Ordinance, 1985 (Ordinance No.54 of 1985), in accordance with law. While releasing the case house from the list of abandoned buildings by the notification dated 16.05.1989, the Government directed the Commissioner of Settlement for taking necessary steps for handing over possession to the owner but writ respondent No.4, a Government officer, failed to comply with the Government direction for restoration of possession to the owner. Md. Abul Kashem vs. Hosna Ara Begum (Syed Mahmud Hossain J) (Civil) 10 ADC 312

Order 47, Rule 1

From the order-sheet of the execution case, we noticed that the petitioner did not raise the jurisdiction or the authority of the presiding officer of the Artha Rin Adalat to sell the mortgaged property in accordance with section 33 of the Artha Rin Adalat Ain at any point of time rather he had surrendered to the juris- diction of the Adalat and prayed for staying further proceedings of the execution case on different grounds. There- fore, we find no substance as regards the question of jurisdiction raised by the learned counsel. Md. Saidur Rahman vs. Farid Uddin Mahmud (S.K. Sinha J)(Civil) 8 ADC 698

The Code of Civil Procedure, Order 47 Rule 1

Seeking decree for permanent injunction and for declaration that the property in suit is not enemy property i.e. vested property. Matiar Rahman vs. Assistant Custodian of Enemy Property Lands (Md. Ruhul Amin CJ) (Civil) 6 ADC 20

Order XLVII, Rule 1- 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, [4 LM (AD) 275]

Order 47, rule 1- 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, [4 LM (AD) 266]

Order XLVII, rule 1- 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, [4 LM (AD) 261]

Order 47- 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, [4 LM (AD) 11]

Order 47, Rule 1- 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, [4 LM (AD) 118]

Order XLVII, Rule 1(1)- 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, [1 LM (AD) 170]

Order XLVII, Rule 1- 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, [6 LM (AD) 227]

Order XLVII, Rule 1(1) 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, [9 LM (AD) 568]

Order XLVII, rule 1- Review- Subject to the law and the practice of the court, the court may, either of its own motion or on the application of a party to a proceeding, review it's judgment or order in a Civil proceeding on grounds similar to those mentioned in Order XLVII, rule 1 of the Code of Civil Procedure and in a Criminal Proceeding on the ground on an error apparent on the face of the record."

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, [10 LM (AD) 581]

Code of Civil Procedure [V of 1908]

Order 47 rule 1

Supreme Court of Bangladesh (Appellate Division) Rules, 1988

Order 26 Rule 1

Order XXVI rule 1 of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988 prescribes limited scope to review its own order/judgment, i.e. to prevent miscarriage of justice or palpable or to correct grave errors committed by it.

The Appellate Division opined that a plain reading of the this provision clearly shows that this court can review its judgment on grounds available in Order 47 rule 1 of the Code of Civil Procedure in a civil matter. Therefore, the court cannot travel beyond the permissible limits, that is to say, the scope for hearing a review matter is very much restricted than a statutory appeal provided by law. The legislature has conferred a limited jurisdiction circumscribed by definite limits in order 47 rule 1 of the Code of Civil Procedure. The grounds are, namely, discovery of new and important matter or evidence which after exercise of due diligence was not within the applicant's knowledge or could not be produced at the time when judgment was passed. Secondly, if there is mistake or error apparent on the face of the record. Thirdly, for any other sufficient reasons. It is to be borne in mind that the power of review is not an inherent power but it is a creature of statute. It is not an appeal in disguise. These are established principles of law. If the statutory provisions empowering a court are not adhered to, there will not be end of litigation. Exercising power of review overriding the express provisions would not be in the interest of justice rather it would be permitting the party to abuse the process of the court. Even an omission to bring to the notice of the court a relevant provisions of law is not a legal ground for review. Professor Muzaffer Ahmed -Vs- Bangladesh Bank and others (Civil) 22 ALR (AD) 136

Code of Civil Procedure [V of 1908]

Order 47, rule 1

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.

The Appellate Division held that the learned Advocate however could not overcome the legal barrier that the alleged undertaking has been neither produced in Court nor marked as exhibit in the case and that the defendant-petitioner hereof did neither he himself has given deposition nor adduced any witness or produced the agreement in question in the suit to prove his claim of loan and security" dismissed the leave petition. From the above, 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, the Appellate Division finds no reason to review the judgment and order passed by the Appellate Division dismissing the leave petition. Accordingly, this review petition is dismissed. Md. Mozzammel Haque -Vs- Md. Abdus Salam and another. (Civil) 22 ALR (AD) 171

Code of Civil Procedure [V of 1908]

Order 47, Rule 1(1)-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, 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.

The Appellate Division placed reliance on the case of Fazle Karim and others vs. Government of Bangladesh and others, (1996) 48 DLR (AD) 178 wherein the Appellate Division held as under: "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." Having gone through the principle expounded in the case referred to above, the Appellate Division is of the view that the instant review petition does not come within the principle ex- pounded in the judgment made above. In the light of the findings made before, the 30 Appellate Division does not find any substance in this review petition. Accordingly, this review petition is dismissed without any order as to costs. International University of Business. Agriculture and Technology (IUBAT) and another Vs. Mohammad Ismail and others. (Civil) 18 ALR (AD) 1-6

Code of Civil Procedure (V of 1908) 

Rule 1(1) of Order 47 read with

The Supreme Court of Bangladesh, (Appellate Division) Rules, 1988

Rule 1 of order XXVI

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 I of order XXVI of The Supreme Court of Bangladesh, (Appellate Division) Rules 1988. In view of the above, the Appellate Division does not find any substance in the submission of the learned Counsel for the petitioners and thus no merit in the review petition and accordingly the same is dismissed. Suza Uddoula and others -Vs- Arshad Hossain Haider and others (Civil) 20 ALR (AD) 27-30

Code of Civil Procedure [V of 1908]

Order 47 Rule 1-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.

The Appellate Division observed that admittedly, the plaintiffs' title to the suit property was not disputed or denied. It was not denied or disputed that plaintiff Nos. 1- 3 were minors at the time of executing alleged bainapatra. Proforma-defendant Nos. 13 and 14 took LTI of plaintiff No. 4 in blank papers who was an uneducated widow. The plaintiffs case is that they never executed the bainapatra or authorized proforma-defendant Nos. 13 and 14 to do the same for their benefit stating that at the relevant time plaintiff Nos. 1-3 were minors. The definite case of defendant No. I was that he went into possession of the suit land pursuant to the agreement for sale on payment of an amount of Tk. 30,000/- in cash and cheque to the plaintiffs. But cu- riously enough defendant No. 1 could neither produce the bainapatra nor offer any explanation for non production of the same. Defendant No. 1 stated to have made a G.D. entry to that effect with the local police station but he could not produce the copy of the G.D. entry in the Court. Consequently, the defendant-appellant totally failed to prove and substantiate the bainapatra in accordance with law. Defendant No. 1 stated that the bainapatra was executed on 18.12.1968 but he did not state that the bainapatra was executed by the plaintiffs. Subashini Chowdhurani, plaintiff No. 4 as well as mother of plaintiff Nos. 1-3 while deposing as P.W.1 denied execution of any bainapatra and stated specifically that she did not authorize proforma-defendants to negotiate with defendant No. 1 or to execute any bainapatra with him for selling the suit property. 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. Abdur Rahman and others. Vs. Moti Lal Chowdhury and others. (Civil) 15 ALR (AD) 206-208

Code of Civil Procedure [V of 1908]

Order 47 Rule 1 read with

Partnership Act [IX of 1932]

Section 32-The Appellate Division held that it is admitted that as the disputed property belongs exclusively to the firm, no partner can claim any part of the property as his own and what a partner is entitled to his share of profits only, so long the partnership continues. Upon dissolution of the partnership, his share is his proportion of money representing the firm's asset including immovable property after liquidation of the partnership debts and liabilities. On dissolution of firm each of the partners is entitled to receive his share of assets of the firm to which he was entitled. Section 32 of the Partnership Act provides for retirement of a partner from the partnership but it makes no provision of separation of share of the retired partner but this matter has been left to be determined by agreement between the partners. Bangladesh Rubber Industries and another. Vs. Dine Ara Begum and others. (Civil) 15 ALR (AD)181-184