Order XXVI - XLI | Code of Civil Procedure, 1908 | Case Reference

Code of Civil Procedure [V of 1908]

Code of Civil Procedure [V of 1908]

Order 26 read with section 75

The Advocate Commissioner prepared his report after actual physical measurement of the land on the basis of possession and title and the final decree was passed at least 4 years after the preliminary decree. Upon discussion of the judgements of the trial Court and appellate Court, the High Court Division upheld the concurrent findings of the Courts below. The finding of the Courts below is that the Advocate Commissioner rightly allocated saham to the parties. The Appellate Division notes from the impugned judgement that the High Court Division found that the Advocate Commissioner prepared his report after actual physical measurement of the land on the basis of possession and title and the final decree was passed at least 4 years after the preliminary decree. Upon discussion of the judgements of the trial Court and appellate Court, the High Court Division upheld the concurrent findings of the Courts below. The finding of the Courts below is that the Advocate Commissioner rightly allocated saham to the parties. This cannot be interfered with by the High Court Division unless there was misreading or non-consideration of evidence. There was no such allegation in this case. The Appellate Division also notes that the trial Court observed that P.W.I stated in his deposition that he has no objection if the defendants get saham according to their claim. In view of the discussion above, the Appellate Division does not find any illegality or impropriety in the impugned judgement and order of the High Court Division. Accordingly, the civil petition for leave to appeal is dismissed. Most. Monowara Begum and others -Vs. Md. Wahed Ali and others (Civil) 16 ALR (AD) 175-176 Order 26 Rule 1

The writ petitioner did not mention how he himself and other less fortunate people were affected by the impugned order; that in the writ petition there was nothing to show that professor Muzaffar Ahmed moved the High Court Division for and on behalf of other less fortunate persons of the society who had no source or needs to invoke the jurisdiction of the High Court Division or that these less fortunate people were in any way affected by the impugned order; that the contention that the order impugned might cause serious financial indiscipline if the bank was allowed to operate was not tenable in law; that this claim itself proved that the writ petitioner was moving on behalf well to do people of the country and that the writ petition was filed to protect the interest of well to do persons who were intending to promote banking companies. The Appellate Division also entered into the merit of the matter and held that BRAC Bank being a charitable society can invest and deal with the money of the society not immediately required for management of the society; that there is no embargo in the investment of the fund of the society; that a charitable society can invest its money and the profit earned from that investment will be taxable; that the bank having started its banking transaction, the writ petitioner wanted to stop the functioning of the bank which would defeat the ends of justice and that the writ petitioner has been set up by influential persons with malafide motive to frustrate a banking business.

While considering the public interest, the Appellate Division is required to see the balancing interest. The public interest can cover a wide range of values and principles relating to the public good, or what is in the best interest of society. Suppose the BRAC Bank has started banking business in violation of section 20 of the Societies Registration Act, how the writ petitioner will gain out of it. Neither he nor less fortunate people will be affected by reason of conducting banking business other than his egoism. On the contrary, if BRAC bank is closed down millions of people will suffer. Since it has started banking business commercially what would be the fate of unaccountable number of LCs opened through this bank. What would happen to innumerable investors who purchased shares of this bank? What would happen to the innumerable number of persons who are dependant on the business being conducted by this bank, such as, the landlords who rented houses, the dependants of the employees working in the BRAC Bank and so on? Therefore, if the Appellate Division assess the balance, it is more in favour of the BRAC Bank. The learned counsel appearing for the appellant fails to convince us, how the writ petition is maintainable. More so, the points raised at the time of hearing were reiteration of the grounds argued at the hearing of the original appeals. These are not legal grounds for review of a judgment. In view of the above, the Appellate Division finds no merit in this appeal. Accordingly, the appeal is dismissed. Professor Muzaffer Ahmed -Vs.- Bangladesh Bank and others (Civil) 22 ALR (AD) 136

Order XXVI Rule 5

Commission on request. to examine witness not with In Bangladesh. —. An order rejecting objections and accepting the report of an Advocate Commissioner does not mean that the Court has abdicated its functions and has decided a fact in issue solely on the port of the Commissioner — It will still be open to the Court to consider the report afresh again in the light of such fresh materials as may be legally brought on record by the parties.

Mostakim Mondal Vs. Kamal Ranta Chandra Mondal and another, 12 BLI) UWD 194Ref. A.I.R.1953 (Patna)l33: IOBLD(AD) 3—Cited.

 

Order XXVI Rules 7 and 9

Deposition of the witness taken on commission — Whether the same can be read as evidence in the trial without being tendered to be admitted as evidence in the case —— The depositions of the witnesses taken by the Commissioner will have got to be ten4ered as evidence and admitted by the Court as evidence before they become evidence in the ease..

K.D.R. Laboratories Ltd. Vs. Rupali Bank and others, 88W (HCD). 92

Ref. A.I.R. 1942 (Bom) 266— Cited.

 Code of Civil Procedure [V of 1908] 

Order 26 Rules 7 and 9 read with Section 115(1)

The trial court ought to have done any such investigation necessary before passing the decree because no decree can be passed for vague or unidentified land otherwise the decree would be rendered infructuous and a court of law is not supposed to pass a infructuous decree.

The High Court Division finds substance in the instant rule. Accordingly, the instant rule is made absolute and the impugned judgment and order passed by the court below is hereby set aside. The application for local investigation is allowed and the court below is directed to appoint the commissioner and obtain report within 15 (fifteen) working days from the date of receipt of the instant judgment and to proceed in accordance with law. The order of stay passed by the High Court Division earlier is vacated. Mohammad Younus and others. -Vs- Bangladesh and others (Civil) 23 ALR (HCD) 54

Code of Civil Procedure [V of 1908] 

Order 26 rule 9 read with Section 115(1)

The plaintiffs-appellants filed petition under Order 26 rule 9 which was allowed by the Appellate Court below and accordingly Advocate Commissioner was appointed who submitted report on 22.3.2004 and the report was not accepted for some mistakes and in such situation plaintiffs-appellants on the same ground filed another petition for local investigation which was disallowed without any cogent reason though on the same ground earlier petition for local investigation was allowed. The concerned Court is directed to appoint Advocate Commissioner for the said local investigation, and as such. Nizamuddin and others Vs. Bangladesh Railway and others (Civil) 23 ALR (HCD) 14

Code of Civil Procedure [V of 1908]

আদেশ ২৬ নিয়ম ৯ দেওয়ানী রুল ও আদেশ ভলিউম ১

বিধি ২৬৩(২), ২৬৪-২৬৬-আদালত কর্তৃক স্ব- প্রণোদিত হইয়া স্থানীয় তদন্তের আদেশ দিতে পারেন। তবে অবশ্য দেওয়ানী কার্যবিধির আদেশ ২৬ নিয়ম অনুসরণ করিতে হইবে। সব বিষয় বিবেচনা করিয়া, যদি বিচারক ঐরূপ তদন্তের আদেশ প্রদান করা সুষ্ঠু বিচারের জন্য প্রয়োজন মনে করেন তখন দেওয়া যাইবে। সেইক্ষেত্রে দেওয়ানী রুল ও আদেশে ভলিউম ১ এর ২৬৩ (২), ২৬৪-২৬৬ বিধির বিধানাবলীর নির্দেশনাও অবশ্যই অনুসরণ করিতে হইবে। সাধারণতঃ এই ধরনের তদন্ত্রের আবেদন মোকদ্দমায় প্রাথমিক পর্যায়ে করিতে হয়। আঅনেক সময় মোকদ্দমার নিষ্পত্তি বিলম্বিত করার জন্য অনেক বিলম্বে এইরূপ দরখাস্ত দেওয়া হয়। কিন্তু মোকদ্দমার সাক্ষা প্রমাণ গ্রহণের পরেও যদি প্রয়োজন হয়, তাহা হইলে ঐ পর্যায়েও স্থানীয় তদন্তের আদেশ দেওয়া যাইবে। আজুল বারেকের মৃত্যুতে তাহার উত্তরসুরী বনাম বাংলাদেশ সরকার গং (Civil) 18 ALR (HCD) 204-207

Code of Civil Procedure [V of 1908)

আদেশ ২৬ নিয়ম ৯ দরখাস্তকারীদের স্থানীয় তদন্তের দরখাস্ত বিচারিক আদালত কর্তৃক না-মঞ্জুরের বিরুদ্ধে এখতিয়ার বিহীন বিজ্ঞ জেলা জজ আদালতে যে রিভিশনন্বয় দায়ের করিয়াছিল তাহা গ্রহণযোগ্য নহে মর্মে খারিজ হইয়াছে। তাহাতেও প্রতীয়মান হয় যে, বিবাদী- দরখাস্তকারীগণ মোকদ্দমাটি প্রলম্বিত করার অপপ্রয়াসে উল্লেখিত দরখাস্ত দায়ের করিয়াছেন।

হাইকোর্ট বিভাগ বলেন মোকদ্দমার স্থানীয় তদন্তের দরখাস্তক্ষয় দেখিলাম, যাহা হইতে প্রতীয়মান যে, এক-৪ নং বিবাদী-দরখাস্তকারী এবং ৮নং বিবাদী-দরখাস্তকারীগণের দাখিলীয় স্থানীয় তদন্তের বিষয়টি একই যাহ্য নিম্নরূপঃ স্থানীয় তদন্তের বিষয়বস্তুঃ "১। হালে গাজীপুর, ঘানা-শ্রীপুর, ৭নং কেওয়া মৌজায় অবস্থিত, যাহার সিএএস ও এসএ কত নং নাগটি খতিয়ানের অন্তর্ভুক্ত এবং তার দাগে মোট জমির পরিমাণ কত? তাহার বর্তমান কত কত নং আরএস রেকর্ডে এবং কত কত নং আরংএস দাগে অন্তর্ভুক্ত হইয়াছে তাহা বায়েতী স্বত্রে কোন কোন মালিকানা নামে আর এস রেকর্ডে অন্তর্ভুক্ত হইয়াছে? তাহার সিএস ও এসএ নকশা বাওয়া/বাহির করিতে হইবে।" অত্র মোকদ্দমায় ৩ক-৩ ও ৮নং বিবাদীতগণ ভিন্ন ভিন্নভাবে যে লিখিত জবাব দাখিল করিয়াছেন তাহা হইতে সুস্পষ্ট দেখা যায় যে, নালিশী সম্পত্তির সিএস, ও এসএ খতিয়ান উল্লেখ আছে এবং মোট সম্পত্তির পরিমাণ উল্লেখ আছে এবং আরএস কোন কোন দাগে রেকর্ড হইয়াছে তাহা যেমন বাদী ১-৩নং অপরপক্ষের আরজিতে উল্লেখ আছে, তেমনই বিবাদী-দরখাস্তকারীদের লিখিত বর্ণনা বিশেষভাবে ৮নং বিবাদীর লিখিত বর্ণনায় সুস্পষ্টভাবে উল্লেখ রহিয়াছে। অধিকন্তু, ইহাও স্বীকৃত যে, নালিশী দাগের ৫.১৬ একর সম্পত্তির মধ্যে ৮.৮৫ একর সম্পত্তি বিবাদী কর্তৃক স্বীকৃত খাস খতিয়ানভুক্ত সম্পত্তি এবং তাহা তিনটি বন্দোবস্তমূলে বিবাদীদের বন্দোবন্ধে প্রদান করা হইয়াছে এবং বাকি ৩৬২ একর সম্পত্তি ১, ২, ৩, ৪, ৫ এবং ৮নং বিবাদীদের, পূর্বসুরীদের নামে আর এস, রেকর্ড হইয়াছে, যাহা অশুদ্ধ ও ভুল এবং যাহা যারা বাদী-১- ৩নং অপরপক্ষগণ বাধ্যকর নহে মর্মে অত্র মোকদ্দমা। এইক্ষেত্রে দেখা যায় যে, বিবাদী-দরখাস্তকারীদের স্থানীয় তদন্তের বিষয়সমূহের মীমাংসা তথ্য সমাধান বিবাদীদের দাখিলকৃত লিখিত জবাবের মধ্যে নিহিত রহিয়াছে বিধায় দাখিলকৃত স্থানীয় তদন্তের দরখাস্তটি দাখিলের সুস্পষ্ট এবং সুনির্দিষ্ট কোন কারণ খুঁজিয়া পাওয়া যায় না। অধিকন্তু, দরখাস্তকারীদের স্থানীয় তদন্তের দরখাস্ত বিচারিক আদালত কর্তৃক না-মঞ্জুরের বিরুদ্ধে এখতিয়ার বিহীন বিজ্ঞ জেলা জজ আদালতে যে রিভিশনন্বয় দায়ের করিয়াছিল তাহা গ্রহণযোগ্য নহে মর্মে খারিজ হইয়াছে। তাহাতেও প্রতীয়মান হয় যে, বিবাদী-দরখাস্তকারীগণ মোকদ্দমাটি প্রলম্বিত করার অপপ্রয়াসে উল্লেখিত দরখাস্ত দায়ের করিয়াছেন। আরো উল্লেখ্য যে, বিচারিক আদালতের তর্কিত আদেশে যে আংগিকে স্থানীয় তদন্তের দরখাস্ত নিষ্পত্তি করিয়াছেন তাহা সুবিন্যস্ত এবং সুব্যাখ্যাত না হইলেও সুস্পষ্ট নয়। কেননা, বিবাদী-দরখাস্তকারীদের স্থানীয় তদন্তের বিষয়বস্তুসমূহ দালিলিক এবং মৌখিকভাবে সাক্ষ্য প্রমাণের স্বারা নিশ্চিতভাবে নিষ্পত্তি সন্তান বিধায় বিচারিক আদালতের বিজ্ঞ বিচারক সেই মর্মে যে আদেশ প্রদান করিয়াছেন তাহা ন্যায়সংগত এবং আইনানুগ। অতএব, উপরোক্ত আলোচনা ও পর্যালোচনার পরিপ্রেক্ষিতে আমাদের অভিমত যে, তর্কিত রায় ও আদেশটি ভ্রান্ত ধারণার প্রসূত নহে কিংবা আইনের কোন ব্যত্যয় ঘটে নাই বা বিবাদী-দরখাস্তকারীগণ ন্যায়বিচার হইতে বঞ্চিত হন নাই বিধায় তর্কিত আদেশটি হস্তক্ষেপযোগ্য নহে। অতএব ফলাফল, অত্র রুলস্বন্বয় বিনা খরচায় খারিজ (ডিসচার্জড) করা হইল। আব্দুল বারেকের মৃত্যুতে তাহার উত্তরসূরী কনাম- বাংলাদেশ সরকার গং (Civil) 18 ALR (HCD) 204-207

Code of Civil Procedure [V of 1908]

Order 26 Rule 9 read with

Evidence Act [I of 1872] Section 45 and 73-The hand writing

expert In a suit for Specific Performance of Contract where the existence of the bainanama itself is under challenge therefore any finding at this stage on the veracity of the report of the hand writing expert shall have a direct bearing during the trial of the suit and which is not at all desirable for appropriate and lawful dispensation of justice.

The High Court Division is of the considered opinion that it is true that in a suit for Specific Performance of Contract where the genunity or Veracity of the bainanama is under challenge the issue obviously extends to the question of the existence of the contract itself, hence arriving upon a finding or decision as to the genunity of the signature prior to commencement of trial would tantamount to concluding the suit itself. In its order dated 25.10.2016 learned Court below correctly observed that in the event of arriving at a finding on the genunity of the report of the handwriting expert in that event there shall not remain any scope to examine witnesses and depositions made by them and shall give rise to further legal complications in conducting the proceedings. The High Court Division is also of the considered view that in a suit for Specific Performance of Contract where the existence of the bainanama itself is under challenge therefore any finding at this stage on the veracity of the report of the hand writing expert shall have a direct bearing during the trial of the suit and which is not at all desirable for appropriate and lawful dispensation of justice. Motaher Ali-Vs.- Yakubia Shamol Prokolpa Private Limited and others (Civil) 16 ALR (HCD) 381-384

Order XXVI Rules 9 and 10

Local Investigation—Commissioner’s report and map accepted by the Court after hearing objection -—Report and map form part of the evidence which should not be lightly brushed aside — Decree in conflict with the report and map which have been made part of the decree — Decree is not executable.

Majidnnnessa Beguns and others Vs. Province of East Pakistan and others, 1BLD (HCD) 363

 

Order XXVI Rule 9

Local Investigation—Successive Investigation when unnecessary — The report of the Advocate Commissioner submitted after  local investigation at the instance of the plaintiffs was accepted and the defendant did not take any step against the report — Since the Court will he in a position to determine the disputed point on the basis of this report and other materials on record, further Commission is redundant — It is not necessary to hold another local investigation for the same without annulling the proceeding of the first investigation.

Md. Emdaduddin Sk. Vs. Atiqur Rabmaji and others, 9BLD (HCD) 253. Order XXVI Rule 10

Local investigation— Interference with the result of a long and careful local investigation except upon clearly defined and sufficient grounds is to be deprecated.

Mapdunnessa Beguni and others V. Province of East Pakistan and others. 1BLD(HCD)363

Ref. 3 M.J.A. 607: 44 C.W.N. 205

Code of Civil Procedure [V of 1908]

Order 26 Rule 9-The defendant petitioner neither during the suit nor during appeal raised any objection nor did they make any application before the court to have the suit land measured following the provisions Order 26 Rule 9 of the Code of Civil Procedure by appointing an Advocate Commissioner, whether he can raised the issue in revision.

The High Court Division noticed that the learned Advocate for the petitioner argues that the trial court did not follow the provisions of Order 26 rule 9 of the Code of Civil Procedure by not calling for appointing an Advocate Commissioner under Order 26 Rule 9 of the Code, rather it gave order to get the land measured by a local surveyor. Controverting this argument of the petitioner, the Learned Advocate for the opposite party submitted that the petitioner cannot at this stage of the case make such argument given that the defendant petitioner neither during the suit nor during appeal raised any objection nor did they make any application before the court to have the suit land measured following the provisions Order 26 Rule 9 of the Code of Civil Procedure by appointing an Advocate Commissioner. Upon examining the record the High Court Division also does not find anything from the record which may indicate that the defendant petitioner here made any application for investigation and for measuring the suit land by an Advocate commissioner under Order 26 rule 9 of the Code of Civil Procedure. Therefore the High Court Division is in agreement with the learned Advocate for the opposite party and the High Court Division is also of the considered view that in such circumstances the petitioner cannot raise this issue in revision. Abu Sayed (Hafer) Vs. Most. Rezia Khatun (Civil) 15 ALR (HCD) 330- 334

 

Code of Civil Procedure [V of 1908]

Order 26, rule 10-The Advocate Commissioner's report is neither a substantive piece of evidence, nor a conclusive evidence to determine the real question of controversy.

The High Court Division held that it is the discretion of the court either to order another enquiry or reject it, if there are other satisfactory evidence adduced upon which the court can come to a finding and the report of the Advocate Commissioner is to be evaluated in the facts of the case on the evidence adduced and mere acceptance of the report should not give rise to any apprehension in the mind of the litigant, inasmuch as; the Advocate Commissioner's report is neither a substantive piece of evidence, nor a conclusive evidence to determine the real question of controversy. Rakhal Chandra Barua and another Vs. Subrata Dhar and others. (Civil) 19 ALR (HCD) 117-119

Order XXVI Rule 10

Acceptance of Advocate Commissioners Report after local investigation

— Effect of such acceptance - Whether acceptance of such report debars the party objecting to such acceptance from disputing its correctness at the trial of the suit It is well settled that the Court is not at all precluded from considering the report of the Commissioner afresh again in the light of such fresh materials as may he legally brought in e record by the parties — Commissioner’s is to be evaluated in the facts of the case evidence adduced and the Court has wide discretion in such matter — Mere acceptance  of the report should not give raise to apprehension in the mind of litigant, that the ultimate decision shall go against him.

Md. Abul Quashem Vs. Md. Lutftir Rahman 10BLD (AD)3

Ref. AIR. 1953 Pat. 133 — Cited.

 

Order XXVI Rules 13 - 18

Equity aids the vigilant —-When the to parties are litigating over a matter, equity sill not conic to the aid of an indolent party ho does not keep track of the course of the proceedings — When the matter is regulated by the express provisions of the procedural rules there is no scope for introducing a supposed rule grounded on vague principles of natural justice — To do so is to introduce filicide notions in a procedural law which the legislature did not provide In this case the parties were aware of the appointment of the Commissioner and the defendants did not challenge the report of the Commissioner —- It would not lie in their mouth that the Court did not inform them about the date of filing of objection, if any.

Abdur Rahman and others, Vs. Sutan and others, 3BLD (AD) 129

Ref. 1915 AC. 120(138)—Cited.

 

Order XXVI Rule 14 read with sections 151, 152 and 153

Partition suit — Formal defect in preliminary decree does not nullify the work of the Pleader Commissioner — Defect in the preliminary decree can he corrected ex debito justice?

Md. Wasiq Khan Vs. Md. Sabiq Khan and others, 1BLD (HCD) 46

Ref. A.I.R.l922 (PC) 269; A.I.Rl957 (MB) 17: 36 C.W.N.665: L.R. 3 P.C. (475) — Cited.

 

Order XXVI Rule 14

Serving notice upon the parties after pleader commission of report

There is no specific provision of service notice upon the parties or their respective lawyers after the Pleader Commissioner submits his report — But ii considerable time has elapsed between the last occasion when the Court had dealt with the proceedings and the submission of the report, it is on iv fit and proper. that the lawyers of both sides are to he informed of the recommencement of the Court’s proceeding—The decree passed without such intimation will not be a nullity but in the facts and circumstances of each case the aggrieved party can complain about lack of knowledge and the Court would he required to examine if the complaint is a reasonable one.

Md. Wasiq Khan Vs. Md. Sabiq Khan and others, 1BLD (HCD) 46

Ref. 30DLR (SC) 30 — Cited.

 

Order XXVI Rule 14

Advocate Commissioner’s report

— Objection to its acceptance --— Advocate

Cited.

Commissioner submitted report effecting partition after I 8 years — Trial Court directed to inform parties fixing a date for filing objection Court’s order not shown to Advocates of all the parties — Court ought to have considered whether the fact of filing of the Commissioner’s report was brought to the notice of the Advocates of the parties — Final decree is set aside as the appellants did not get opportunity to file objection against the report.

Hosna Banu and others Vs. Azad Khan and others, 3BLD (HCD) 140

Ref. 199O) 13 I.L.R. 368: (BLI) 46:

2(BLI) 114: 15DLR99; A.I.R.l938 (Patna) 104:

AIR. 1929 (Madras) 492; — Cited.

 

Order XXVI Rule 14

Acceptance of Commissioners report

Acceptance of Commissioner’s Report without giving opportunity to a party to file objection against the same and passing of the final decree on the basis of the same cannot stand — Order rejecting prayer of the parties to file objection against the Commissioners Report ought to have been shown to the party or his Advocate— Civil Rules and Order. R. 466(2)

Jaherunuessa Vs. Safed Ali Bepari and others, 2BLD (HCD) 114

 

Order XXVI Rules 14 and 15

Advocate Commissioner’s report

— Question of notice to the party to take step against ii — it is true that in the absence of a formal notice some objection in this regard cannot be raised, but the purpose which lay behind in the giving of such notice was fully served when the party to be affected by the absence of such notice was herself present on the spot —— Civil Rules and Orders, R. 466(2).

Sabed Au Bepari Vs. Jaherunleessa; 5 BLD (AD) 329

Ref. 35DLR (AD) 51 — Cited.

 

Order XXVI Rule 14

Advocate commissioners report after preliminary decree

Once a partition decree is made in preliminary form the rest is for the Commissioner but the Court at that stage is not concerned as to what direction should be given to the Commissioner for completing the partition — The Court can only give a limited direction as to which plot is to be partitioned and the rest will be decided when the Commissioner submits his final report and the Court proceeds to consider the same.

Sree jugal Kishori Sarker Vs. Azizur Rahman and others’ 8BLD (AD)11

Ref. 60 C.W,N. 829: AIR. 1928 (Call 539 —‘Cited.

 

Order XXVI Rule 14(2)

Sufficient opportunity:

Sufficient opportunity must be given to a party to file objection against the report of the Advocate Commissioner before the final decree is drawn up — Introduction of the word “vary” in sub-rule(2) of Rule 14 of Order 26 C.P.C. entitles a party to modify the report in a proper case and the Court’s view on the subject should be treated to be final,

The Court after hearing any objection which the party may take to the report shall “confirm, vary or set aside’’ the same --—— This implies that the Parties are entitled to substantiate their objection but in such cases as rule of prudence, the Advocate Commissioner shout - be examined with reference to the objection and if it appears from the statement of the Advocate Commissioner that there is a ground for further enquiry into the matter, which is i the objection, then the parties should be al-I towed to produce evidence or the Advocate Commissioner be directed to amend his report accordingly

The High Court Division when seized the revision proceeding as a whole is comjr-1 tent to look into the matter from start to finally because the object of scrutiny of the proceeding, as a whole by the High Court is that justice done as a whole in the proceeding.

Md. Mahrnud Mini, and another Vs. Ludu Miah and others, 12BLD (HCD)23

Ref. A.I.R. 1935 (Lahore) 501: A.IRi 1964 (Patna) 298: AIR. 1934 (Allahaba) 543: 2IDLR 361; A.1.R. 1941 (Allahab) 215—Cited.

 

Order XXXVII rule 2 and 4

From the impugned judgment and order as well as from the record, it further appears that the Rule was issued on respondent No.1, District Judge, Dhaka only to show cause as to why "the order passed on 22.10.2009 dismissing the Summary Suit No.16 of 2005 violating the provisions of Rule 2(2) of Order XXXVII (sic) Code of Civil Procedure; without passing the Court of District Judge, Dhaka the Court's order granting leave to appear or to defend shall not be declared to have been passed without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper. Safi Uddin vs. District Judge, Dhaka (Md. Abdul Wah- hab Miah J) (Civil) 10 ADC 901

Order XXVII Rules I and 2

Sign and verify the written statement

Whether Deputy Commissioner is com—1 tent to sign and verify the written statement in a suit against the Government represented b the Military Estate Officer— Government by Notification dated 14th December, 1985 authorised the Military Estate Officer to sign and verify the plaint or written statement in a suit by or against the Government in respect of Military Lands and Cantonment Service — The suit relates to a premises in the Cantonment Area, and as such, the Military Estate Officer is the person who has been specifically appointed to sign and verify a plaint or written statement on behalf of the Government in the “Ministry of Defence”. — The Military Land Manual, R-lO in Appendix— C; Cantonment Act, 1924 (II of 1924), Ss. l(XXa), 280 and 281

Maqsood Alam Vs. The People’s Republic of Bangladesh, represented by the Military Estate Officer, Dhaka Cantonment, Ministry of Defence and other, 7BLD(AD)62

 

Order XXVII Rule 4

Service of summons — Whether Government pleader is the agent for service of summons upon the Government — Government pleader is the agent for service of summons on the Government — Service of summons under Order V of CP. Code is a general provision and Order XXVII C.P.C. contains special provision in respect of suits by or against the Government and as such the special provisions of Order XXVII will override the provisions of Order V in respect of such suits — As the Government Pleader was not served with the summons there was no proper service.

Hateman Nessa and others Vs. Bangladesh, 5BLD (AD)114

 

Order XXX Rule 1

Partner’s authority — A partner may sue or be sued in the name of the firm — But such authority does not empower him to compromise or withdraw a suit or proceedings relinquish claim or admit liability against the firm — Partnership Act, 1932 (IX of 1932), S. 19.

M/s. Farmers and Co. Vs. Sree Montosh Bera and an other, 2BLD (HCD) 181

 Code of Civil Procedure [V of 1908]

Order 32 Rule 1-Whether 'a person' means one person or more than one person in the above provision of law.

The High Court Division held that the word 'person' means it could be more than one person although it has been mentioned 'a person' in Order 32 Rule 1 of the Code of Civil Procedure. Now some guidelines from English Jurisdiction may be helpful in the present case. The Interpretation Act, 1978 is an Act of Parliament of the United Kingdom. The Act makes provision for the interpretation of law and according to section 6 of the said Act, 'whether singular also means plural "unless the context otherwise clearly indicates, words used in the singular include the plural, the plural includes the singular and the gender includes the masculine and the feminine." That means singular includes plural clauses vice versa unless it is clear that there is a contrary intention. According to Interpretation Act, 1978 'person' includes a body of persons corporate or unincorporated. Considering the above facts and circumstances of the case, the High Court Division can safely conclude that although it has been mentioned a person' in Order 32 Rule 1, however it shall include any company or association or body of individuals whether incorporated or not or Managing Committee or a corporation. Md. Azam and others -Vs.- Sree Sree Dashabhuja Mata and others. (Civil) 19 ALR (HCD) 12-17

Order XXXII Rule 3

Decree against minor —Guardian ad litem grossly negligent in protecting the interest of the minors— Minor can avoid the decree even if he does not succeed in proving fraud or collusion on the part of the guardian ad litem— Duty of guardian ad litem continues in execution proceedings also.

Rekha Datta and others Vs. Chittagong Urban Co-operative Bank Ltd; 1BLDMD)262

Ref. A.I.. l32 (All) 293; A.I.R. 1946 (Lah)233 —Cited.

 

Order XXXII Rule 3

Order of remand — Such order when need not be passed for curing the defect of non-appointment of Guardian for minrors The provision for appointment of Guardian for minors is mandatory but it seems that it has been too broadly stated by the learned Judge that non-compliance with the rule will render the whole proceeding a nullity even if it is found that such non-compliance has not virtually prejudiced the defence of the minor in any way — The order of remand would serve no purpose except to allow undergoing a formal ritual of the observance of Rule which will have no practical bearing on the adjudication of the ipatter.

Sukumar Sen and others Vs Guaranga Bejoy Dey and others, 9BLD(AD)1 69

 

Order XXXII Rule 4

Guardian ad litem of the minors — under what circumstances to be appointed by the Court

Even if a natural guardian of a minor respondent or opposite party is served with notice but he does not appear to represent him or them in the Court, in that case the Court’s duty will be to appoint the Deputy Registrar as Guardian ad litem for the representation of the minors, who, ii his turn, will appoint a lawyer for the purpose

Joydeb roy and others Vs. Md. Abul Hossain and others, 1JBLD (HCD) 223

Ref. A.I.R. 1968 (SC) 954; A.I.R. 1952 (Mad) 600; A.I.R. 1955 (Travancore Kochin) 166; PLD 1955 (FC) 178; A.I.R. 1976 (SC) 1053; PLD 1979 Karachi) 628; PLD 1979 (R.J.)38; 3ODLR 179; AIR. 1933 (Delhi) 120; 8 BLD(AD)99/141; 6 BLD(AD) 95; 28 DLR(Dhaka)361; 9 BLD(AD)1 —-Cited.

 

Order XXXII Rules 6 and 7

Compromise suit — Compromise on behalf of the minor party in a suit without leave of the Court — Plaintiffs alleged that blank pages were converted fraudulently into compromise petition — Such compromise in a suit in which a plaintiff is a minor cannot be done without leave of the Court — Such a compromise in so far the minors are concerned is void and as for the mother, it is voidable. Kalitara Biswas Vs. Mrinal Kanti Biswas and others, 8 BLD(AD)1

Order XXXII Rule 11(2)

Retirement of Guardian:

Where the Guardian for the suit retires during the pendency of the suit, the Court shall appoint a new Guardian in his place — According to Appellate Side Rules, the Deputy Registrar of the Court was to be appointed as the guardian ad Litem for minors in such a case; instead of doing so a verified application was asked for from the appellants — When there was already a Court Guardian, who could not be served with notice, the Court could straightway appoint the Deputy Registrar as the guardian without requiring the appellants to file an application — This was not done and ultimately the dismissal order was passed for non-compliance of an order which was not exactly necessary — Impugned order was not passed in exercise of a proper discretion and upon taking into consideration of all the relevant facts. Appellate Side Rules, Part 11. Ch. V, Rule 31. Mvi. Md. Keramat Au and another Vs. Syed Munsur Au and others, 11BLD(AD)97

 

Order 37, rule 2

We have heard the petitioner Ms. Yas- min Banu appearing in person. The petitioner has made submission to the effect that her claim of legal fees made in the plaint of summary suit was based on an impliedly fixed amount and there- fore the summary suit under Order 37 Rule 2 of the Code of Civil Procedure was maintainable. Referring to Section 128(2)(f)(i) of the Code of Civil Procedure the learned Advocate has argued also that this provision of law tells that where the claim of the plaintiff payable by the defendant is fixed summary suit is maintainable. Yasmin Banu vs. M. A. Mannan Chairman (Nazmun Ara Sultana J) (Civil) 9 ADC 363

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

 

Order XXXVIII Rules 5 and 6

Attachment before judgment— unless a prima facie ownership of a property: is determined the same is not liable to be attached by an order of the Court.

Messrs R. Ahmed and sons Vs. Messrs Eastern Technique and others, 1BLD (HCD) 67

Ref. (1952) 2 Q.B. 84; 27 DLR 256; 31 DLR (AD) 112— Cited.

 

Order XXXVIII Rules 5 and 6 Attachment before Judgment: vague allegations

Vague and general allegations without any materials are insufficient to invoke the power of attachment before judgment.

Messrs R. Ahmed and Sons Vs. Messrs Eastern Technique and others, 1BLD (HCD) 67.

Ref: (1952) 2 Q.B. 84; 27 DLR 256: 31 DLR (AD) 112— Cited.

Order XXXVIII Rules 5 and 6 read with Order XLIII Rule 1(q)

Attachment before judgment appealable — an order rejecting an application under Order XXXVIII Rule 5 is not an appealable Order under Order XLIII Rule 1(q) C.P.C.

Messrs R. Ahmed and sons. Vs. Messrs Eastern Technique and others, IBLD (HCD) 67

 

Order XXXVIII Rule 5.

Attachment before judgment — When can be made? — Application for attachment fails to make out any case that the defendant was about to remove the trawler with intent to obstruct or delay the execution of the decree that might be passed against him Application rightly rejected.

M/s. Hasnabad Pisciculture, Poultry, Duckery and Housing Estate Vs. M/s. Suidsakera Fishery Co. Ltd. and others, 1BLD(HCD) 457.

Ref. 31 DLR (AD) 112; A.I.R. 1934 (Nag) 167 —Cited.

 

Order XXXVIII Rule 5

Attachment of property before judgment Defendant raised objection that the plaintiff had no locus standi to file the suit— On this objection proforma defendant was transposed as plaintiff and the then plaintiff was transposed as defendant by an amendment— The order of attachment stood automatically vacated on the day when transposition took place by the amendment.

M/s. Husnabad Pisciculture, Poultry, Duckery and Housing Estate Vs. MIs. Suidsakera Fishery Co. Ltd. and others, 1BLD(HCD) 457

Ref: 3IDLR (AD)1l2; A.I.R.l934 (Nag)169 — Cited.

 

Order XXXVIII Rules 5 and 6

Appeal against order of attachment before judgment — Whether appeal lies against a conditional order of attachment before judgment — Conditional order of attachment before judgment is not appealable.

Eastern Maritime and Trading Corporation Vs. Sea Trade and Construction Limited, 5BLD (HCD) 49

Ref. 28DLR 231; 3IDLR (AD) 112;  lY24) Vol. 79 Indian Cases 242; Cited.

 

Order XXXVIII Rule 5

Admiralty Court in Bangladesh exercising 1miralty jurisdiction has no power to arrest any property or ship of the defendant other than the one which was concerned in the cause action — Suit in rem against other ship is no’ maintainable nor such ship can be attached under Order XXXVIII Rule 5 of the Code of Civil Procedure — International commerce and trade cannot be allowed to be disturbed by the arbitrary notions of conduct of a party to a

— Admiralty Court Act, 1861.

Kings Shipping Trading Co. Vs. Ills. L. S.L. Lines and others, 6 BLD WAD) 107

 

Order XXXVI1I Rules 5 and 6

Attachment before judgment — whether Court can pass ad interim order of attachment before judgment without issuing notice to show cause why security should not furnished?— Without issuing show cause notice to the defendant to furnish security an order of ad interim attachment cannot be legally made.

Lokrnan Hossain Vs. A.T.M. Sadeque; 6BLD (HCD)72

 

Order XXXVIII Rules 5 and 8

Bailie’s Lien — Question of bailee’s right to retain goods and to have order of attachment — The plaintiff (bailee) could have exercised the right of lien under the Contract Act if he had possession over the scheduled materials — His application for attachment itself indicates that he was not in possession of the goods — Had he been in possession, he would have asked for an order of injunction and not for attachment — Contract Act, 1872 (IX of 1872), S. 170.

Mohammad Meah Vs. Pubali Bank and others, 9BLD(AD)57

Ref. 28 DLR(AD)43; (1915) 1 Ch.D. 621;

A.I.R. 1926 (Cal) 44; (1946)2 All. ER. 154; (1963)3 All. E.R. 213; (1962) 3, All. E.R. 27; (1816) 171 E.R. 512; A.I.R. 1944 NAGPUR 37; (1964)2 .Q.B.D. 185: 1963 All. E.R. 213; (1928) I KB. 307; (1917) 1 KB. 625; (1905)1 KB. l36;—Cited.

 

Order XXXVIII Rule 8

Attachment before judgment — Question of re-attachment after the decree is passed — As the application for attachment was filed before the decree was passed, there is no reason to hold that it is not maintainable after the decree was passed — An attachment before judgment cannot come to an end until it is set aside or the decree is satisfied. Pubali Bank Limited Vs. Mohammad Mia and others, 7 BLD (HCD)41

Ref. A.I.R. 1937 (Patna) 245 — Cited.

 

Code of Civil Procedure [V of 1908]

Order 38 rule 8

If any property is attached by the Court or any competent authority that property cannot be transferred without the order of the Court, if so, the transfer will be null and void.

Remedy being available to the petitioner under the Code of Civil Procedure, any application under the writ jurisdiction is not maintainable. As the petitioner has remedy under order 38 rule 8 of the CPC against the attachment order, therefore, the writ petition is hit by the doctrine of exhaustion.

On perusal of record, it appears to the High Court Division that the Artha Rin Suit No. 57 of 2015 was filed on 13.08.2015 for realization huge amount to the tune of Tk. 9,71,55,838.48 as on 03.08.2015. In the meantime, the liability of the borrower has increased. The Adalat passed an order of attachment on 05.09.2016 and the writ petition was filed on 07.07.2019 more than 3 (three) years of the impugned order of attachment. Admittedly, the defendants did not challenge the said order. In the Artha Rin Suit both the parties adduced evidence in support of their respective contentions. After that, the Adalat heard the argument advanced by the learned Advocates of the parties on 30.06.2019 and fixed on 08.07.2019 for judgment. Thereafter, the petitioner, son of defendant Nos. 2 and 3 of the aforesaid Artha Rin Suit, filed the instant writ petition after about 2 (two) years of the impugned order of attachment which is a disputed question of fact. Consequently, due to stay order, the Adalat could not pronounce its judgment and the Bank has been deprived of enjoying the fruits of decree which may be passed against the defendant. The family members of the petitioner are third party mortgagors of huge amount of loan and they also executed promissory note, personal guarantee and other usual charged document in favour of the plaintiff Bank and they are contesting the suit by filing written statement, therefore, it cannot be denied that the petitioner was not at all aware about the impugned order of attachment earlier. In the case of Mahmudul Haque (Md) V. Md. Hedayetullah and others, reported in 48 DLR (AD) (1996) 128 where it was held that where special statutory remedy is available then such remedy, as a matter of course, must be availed of first. In view of the High Court Division remedy being available to the petitioner under the Code of Civil Procedure, any application under the writ jurisdiction is not maintainable. As the petitioner has remedy under order 38 rule 8 of the CPC against the attachment order, therefore, the writ petition is hit by the doctrine of exhaustion. Apart from the same, the case entails disputed question of facts. In the case of Shamsunnahar Salam v. Md. Wahidur Rahman, reported in 51 DLR (AD) (1999) 232 it was held that a writ Court cannot and should not decide any disputed question of fact which requires evidence to be taken for settlement. In the light of the above discussion, the High Court Division is of the view that the writ petition is not maintainable. So it does not require to enter into the merit of the case. As the Rule has no substance, therefore, the same is liable to be discharged. In the result, the Rule is discharged. Md. Ejaj Uddin Bin Abdul Khalique -Vs. Government of Bangladesh and others (Spl.Original) 21 ALR (HCD) 219-222

Order XXXIX-

Permanent injunction- In a suit for permanent injunction the plaintiff is to prove his prima facie title only and possession in the suit land. In this present suit the contesting defendant-against whom the decree for permanent injunction has been sought-has miserably failed to prove his title and also possession in the suit land by adducing any evidence whatsoever. On the other hand the plaintiffs have adduced sufficient evidence to prove their prima facie title and also exclusive possession in the suit land. In the absence on any evidence from the side of the defendant the evidence adduced by the plaintiffs were rightly considered by the High Court Division to be sufficient to prove plaintiffs' prima facie title and possession in the suit land for getting a decree for permanent injunction. ...Abdul Mannan @ Manik VS Akub Ali Howlader, [8 LM (AD) 146]

Order XXXIX- Permanent injunction- We find that P.W.1 in his evidence, admitted that his father and uncle obtained compensation on account of acquisition on 25.10.1960. If no compensation was paid in respect of .34 acre of land as shown in the schedule to the plaint, the plaintiff can claim compensation from the Government but he cannot file a suit for permanent injunction against the appellant and others. As soon as gazette notification was published the suit land shall be deemed to have been vested absolutely in the Government free from all encumbrances and as such, the plaintiff is not entitled to file a suit for permanent injunction for restraining the appellant and others from dispossessing him from the suit land till payment of compensation and allotment of rehabilitation plot. We find substances in this appeal. Accordingly, this appeal is allowed and the impugned judgment passed by the High Court Division affirming the judgments and decrees of the Courts below are set aside and the suit is dismissed. Bangladesh Railway VS Md. Sujaruddin, [4 LM (AD) 81]

Order XXXIV Rule 1

lssue of fact — When it cannot be entertained — It was tried to be shown that plaintiff’s exclusive possession covers about 3.50 acres of land, whereas according to the plaint he is in possession over a larger area — The question as to the exact area under the exclusive possession of the plaintiff has been raised here for the first time — It was not an issue before any of the Courts below and as such it cannot be entertained. Moharram Au and another Vs. Muhammad Madhu Mia and others, 9 BLD (AD)67

Order XXXIX, Rules 1 and 2 r/w section 151- Permanent injunction- The plaintiffs have also filed an application under Order 39, Rules 1 and 2 read with section 151 of the Code of Civil Procedure for temporary injunction till disposal of the original suit for permanent injunction. The trial Court issued notice upon the defendant to show cause as to why an order of temporary injunction should not be passed in respect of the suit land within seven days of receipt of the notice.

Being aggrieved, the defendant filed Civil Revision No.19 of 2012 before the District Judge, Cox's Bazar which was allowed and accordingly the plaint of the plaintiffs was rejected.

Being aggrieved by and dissatisfied with the aforesaid judgement and order of the revisional Court, the plaintiff filed Civil Revision No.2101 of 2014 before the High Court Division. A Single Bench by the impugned judgement and order discharged the Rule. Hence, the plaintiffs filed this petition for leave to appeal.

We are inclined to set aside the judgement and order of the High Court Division as well as the judgement and decree passed in Civil Revision No.19 of 2012 dated 24.04.2014 by the learned District Judge, Cox's Bazar. The order of the trial Court dated 01.10.2012 in restored. The trial Court is directed to dispose of the suit in accordance with law. This civil petition for leave to appeal is disposed of. ...Kari Moulavi Abdul Gafur VS Mohammad Nurullah, [6 LM (AD) 190]

Order XXXIX, Rules 1-2 r/w Section 151- Permanent injunction- A suit for permanent injunction the plaintiff must prove exclusive possession- In a suit for permanent injunction the plaintiff must prove exclusive possession, which in this case is disproved by plaintiff's latest record of right which is in the name of the plaintiff's predecessor in interest.

The High Court Division observed that exhibits 1-4 proved prima facie title of the plaintiff in the suit land. But the appellate Court failed to properly assess the evidence on record. It was also observed that the appellate Court did not take into consideration exhibit 5 which is the deed of sale and ignored the fact that the plaintiff got title to the suit property.

We find that the High Court Division has properly assessed the evidence on record, which the appellate Court had failed to do. We do not find any illegality or impropriety in the impugned judgement and order of the High Court Division. ....Zahuruddin Talukder VS= Abdul Mannan, [10 LM (AD) 88]

Order XXXIX Rule 1

Bank Guarantee — Bank undertaking to pay or the failure of performance of contract—There can be no temporary injunction restraining the enforcement of the guarantee—Contract Act, 1 872 (IX of 1 972), S. 126.

Uttara Bank Vs. Maoneill and Kilb urn Ltd. and others, 1 BLD (AD) 230

Ref. 1975 (A.C.) 396 — Cited.

 Order XXXIX Rule 1

Before cancellation of license issuance of notice of show cause is necessary but only in respect of the Nikah Registrar who has been appointed under Rule 5(4) of the above Rules 1975 i.e. who has been made permanent and the respondent No. 1 having not yet been made permanent Nikah Registrar of Goalerchar Union, the High Court Division erred in holding that cancellation of license of the respondent No. 1 is not legal for want of notice of show cause before cancellation. Mosharraf Hossain VS Moulana Md. Tofazzal Hossain (Md. Tafazzul Islam J) (Civil) 2ADC 20

Order 39, rule 1

After filing of the suit the petitioner filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure for temporary injunction and upon hearing of both the parties the trial court granted injunction against the defendants restraining them from entering into the suit land forcibly and from disturbing peaceful possession of the plain- tiff in the suit land by the judgment and order dated 11.04.2007. Mizanur Rahman Chowdhury vs. Sree Paritosh Chandra Nay (Syed Mahmud Hossain J) (Civil) 9 ADC 322

Section 151

Order 39, Rules 1,2

Allowed the prayer of mandatory in junction relying on the Advocate Com- missioner's report. Being aggrieved thereby, defendant No. 1 and 6 filed Miscellaneous Appeal. Md. Yunus vs. Abul Kalam (Md. Abdul Aziz J) (Civil) 6 ADC 584

Order XXXIX, Rule 1 and 2

The facts of the case, in short, are that in pursuance of an agreement dated 18.7.2001, the plaintiff -respondent entered into the suit-shop owned by the defendant-respondent as a monthly ten- ant: But inspite of receipt of advance from the plaintiff, the defendant was trying to let out the suit-shop premises to a third party, as such, the plaintiff filed a suit being Title Suit No. 14 of 2005 in the Court of Senior Assistant Judge, Barisal, praying for inter alia, for a decree that the defendant be restrained by an order of permanent injunction not to let out the shop premises in favour of anybody else during the period of the agreement between them. Sk. Md. Delware Hossain vs. Md. Shahajan Miah(A.B.M. Khairul Haque J)(Civil) 8 ADC 938

Order XXXIX, rule 1 and 2

The facts leading to the filing of this petition, in short, are that the petitioners filed a suit for partition being Partition Suit No.45 of 2008 in the Court of the Joint District Judge, First Court, Bogra, and also filed a petition under Order XXXIX Rules 1 and 2 of of the Code of Civil Procedure, praying for injunction against the defendant No.7, the respondent No.1 herein, restraining him from proceeding with the construction work in the suit plot. The learned Joint District Judge after hearing the petition. passed an order to maintain status-quo in respect of possession of the suit property till disposal of the suit. On appeal, the said order was affirmed. Mst. Setara Beugm vs. Md. Rafiqul Alam Tipu (A.B.M. Khairul Haque J) (Civil) 8 ADC 993

Order 39, Rules 1 and 2, Section 151

Granting mandatory injunction directing the added defendant Nos.3 and 4- petitioners to deliver possession of Suit Shop No. 19 of Younus City Center in favour of the proforma respondent Nos.2 and 3. Md. Khorshed Alam vs. Mohammad Ali (Md. Muzammel Hos- sain J) (Civil) 7 ADC 223

Order 39, Rule 1

It appears that the plaintiff claimed this possession which is supported by the P.W.2 and P.W.3 on the contrary the de- fendant claimed possession in the suit land having placed Ext-'Kha'; the recent Khatian has been prepared in the name of the defendant. Md. Lal Miah vs. Md. Anwar Hossain (Mohammad Fazlul Karim J) (Civil)6 ADC 409

Order 39 Rule 1 and 2 

The learned Judges of the High Court Division hopelessly failed to apply their judicial mind in passing the impugned judgment which is apparent on the face of the record in view of the fact that the trial court passed the order of temporary injunction restraining the defendants from interfering with the plaintiffs possession in the suit fisheries pending disposal of the suit but the learned Judges have made an incorrect observation that the trial court had directed the parties to maintain status quo in respect of the suit fisheries. He further submits that the learned Judges in disposing of the appeal neither affirmed nor set aside nor even modified the order appealed against and as such in the interest of justice the impugned judgment is liable to be set aside. Bangladesh vs Jahangir Alam (Mohammad Abdur Rouf J(Civil) 2ADC 318 

Order 39, Rule 1 and 2 

Seeking decree for permanent injunction restraining the defendant Nos. 2-10 from admitting girl students in Nalchity Merchants High School. 

In violation of the norms of the non- government education at institutions, that the High School under the law was required to apply to the Deputy Director of Secondary and Higher Secondary Education Board for according permission to start a girl school but no such application was filed and as such the High school was not authorized to establish any school for admitting girls within one Kilometer of the existing girls school. 

The view so taken by the High Court Division as to the matter of admission of girl students into Nalchity Girls High School as the exclusive right thereof in our view is not well founded since al particular school imparting education to the girl students of the locality cannot have the exclusive claim to have the girl students of the locality admitting there- in alone as it is the option of the parents of the girls as well as of the girls to decide the matter of admission in the institution or school wherein girls would have better education and as such the action of the High school in admitting girl students in our view has in no way invaded or threatening proprietary right or any kind of right of the School, and in that view of the matter the Nalchity Girls High School was not on correct legal footing in going to the Court for having an order restraining the High School from admitting girl students in it and that the High Court Division was in error in discharging the Rule and thereby affirming the order of the lower appellate Court granting injunction restraining the High School from admitting girl students upon set- ting aside the order of the trial Court. The kind of right i.e. to have girl stu- dents exclusively admitted in the School as claimed by the School and accepted by the High Court Division and thereupon made the same basis of the judgment was erroneous as the right claimed by the School is by no standard is 'property' and thus right claimed by the School was not 'right to, or enjoyment of, property' and consequent thereupon the School was neither entitled to temporary injunction, nor to a decree of permanent injunction. Md. Shahid Hossain Khan vs. Abdul Bashed Lashkar and others (Md. Ruhul Amin J (Civil) 4 ADC 214

Order 39, Rule 1 and 2

Allowing an application for injunction restraining the opposite party No.2 from making construction of any house in the land in suit and not to change the nature and character of the property in suit. Abdur Rahman vs. Jan Bibi and others (Md. Ruhul Amin J) (Civil) 5 ADC 576

 

Order XXXIX Rule 1

Temporary injunction — Irreparable injury and balance of convenience — The object of interlocutory injunction is to protect the plaintiff against injury which cannot be adequately compensated by way of damages — The Court is to take balance of convenience and inconvenience into consideration in granting temporary injunction.

Uttara Bank Vs. Macneil and Kilburn Ltd. and others, IBLD(AD) 230

Ref. (1975) A.C. 396; — Cited.

 

Order 39 rules 1,2 5 (A) 3 Section 151 CPC

Revisional application by staying operation of the order .......(1) That he is a sub-lessee under the company, the authorized leaseholder, and that the period of the lease of the defendant No.1 being upto 31st December, 2007, will expire shortly, directed the learned District Judge, to hear and dispose of the appeal on priority basis taking all the material points into consideration and till disposal of the appeal stayed the operation of the above order dated 26.11.2006...(5) Hefazatur Rahman Tipu vs. Forkanul Islam and others (Md. Tafazzul Islam J) (Civil) 5ADC 483 

Order XXXIX Rules 1, 2 and 3

Adinterim injunction-Appealable order

When an ad-interim injunction is to be passed some reasoning should be given. No ad interim injunction is to be issued when the loss or injury is commensurable by monetary compensation. An order allowing ad-interim injunction is an appealable order.

Liaquat Hossain Chowdhury Vs. Mir Au Hossain and others, IBLD (HCD) 93

Ref. PLD 1960 Dacca 153; A.I.R. 1936

Patna 456; A.I.R. 1939 (All) 280; 29DLR(SC)82; Vol. 1 BSCR Page 32; Civil Revision No. 561 of 1978 (Unreported): — Cited.

 

Order XXXIX Rule 1

Status Quo — It amounts to an order of temporary injunction.

A suit for permanent injunction was filed with a prayer for temporary injunction restraining defendant. No. I from delivering possession of the suit land to defendant No.2

the trial Court directed the parties to maintain status quo — Appellate Court set a side the order on the ground that the plaintiff is a trespasser — On a revisional application the High Court Division set aside this order observing that “status quo” is different from “temporary injunction” Under Order XXXIX Rule I of the C.P.C.

The order of status quo in this case amounts to an order of temporary injunction restraining defendant No. 1 from delivering possession to defendant No. 2.

Dr. jamshed Baket Vs. Murad Ahmed and another, 2 BLD(AD) 154

 

Order XXXIX Rule 1

Injunction ad interim or temporary

In the absence of prima facie and arguable title no injunction can be granted in favour of a trespasser in possession against the owners.

The plaintiffs cannot on the strength of their possession alone, in the absence of any prima facie and arguable title, claim to restrain the defendant appellants from getting possession in accordance with law — The plaintiffs do not appear to have any prima facie and arguable title in the suit land and the defendants are the prima facie owners of the suit land — The plaintiffs being trespassers cannot get any injunction ad-interim or temporary against the defendants who are the owners of the suit land.

Mahbub Alam Talukder and others Vs. Abdus Salam and others, 3 BLD (HCD)136

 

Order XXXIX Rule 1

Temporary injunction — Whether can be issued to restrain a Co-operative Society?----Whether M.L.O. 14 of 1982 applies — The expression “any corporation, body, organisation or enterprise, established, constituted managed maintained or owned by the Government or established or constituted by or under any law” explained — The whole purpose behind the order seems to be that no statutory body or organisation or enterprise should be restrained by an injunction, whether such statutory body is directly managed. maintained or owned by the Government or not, it comes within the purview of the Order — A Co-operative society formed under the Co-operative Societies Act, 1940 by private individuals does not come within the ambit of the expressions used in Martial Law Order No. 14 of 1982 — A Fishermen Co-operative Society formed under the Co-operative Societies Act by private individuals being excepted from the operation of the Martial Law Order No. 14 of 1982 can be restrained by an order of injunction. — Martial Law Order No. 14 of 1982.

Haji Nurul Islam Vs. Serajul Islam and others, 4 BLD (AD)36

 

 Order XXXIX Rule 1

Temporary injunction — Grant of — Though the plaintiffs have prima facie case they are not entitled to temporary injunction as the injury likely to be sustained can be compensated in terms of money.

Jupitar Glass Industries Ltd. and others Vs. Titas Gas Transmission and Distribution Co. Ltd; 4 BLD (HCD) 36

 

Order XXXIX Rule 1

Order of status quo — Whether such an order passed under M. L. 0. No. 40 of 1982 can be maintained — In the absence of any materials that the order of maintenance of status quo which has the effect of an order of injunction would not interfere with the development plans, the same cannot be maintained —M. L. 0. No. 40 of 1982.

Chunnu Miah Chowdhury Vs. Govt of the People’s Republic of Bangladesh, 4BLD(HCD) 302

 

Order XXXIX Rule 1

Grant of temporary injunction — Whether a enderer is entitled to restrain acceptance of a tender?—A tenderer has no legal right as the lowest bidder entitled to get the contract If a tender is accepted in violation of the condition emodied in the tender form then a tenderer may seek protection of his inchoate right — Where there has been no violation there is no necessity for seeking the protection of such right. Umnie Kawsar Salsabil Vs. Shams Corporation (Pvt.) Ltd. and others, 5 BLD (AD) 263

Ref. 32 DLR(AD) 223 — Cited.

 

Order XXXIX Rule 1

Temporary injunction and maintainability of the suit — So long as the suit is not thrown out as being not maintainable, an application for temporary injunction can be maintained.

Deputy Secretary, Ministry of Commerce, Vs. Nizamuddin Haider, 5 BLD (HCD)5 7

 

Order XXXIX Rule 1

Injunction in Trade Mark matters

Whether temporary injunction, should be granted to restrain infringement of right of trade mark when the mark is not similar — A mark may have resemblance in some respects with another mark and have also many points of dissimilarity but the mark as a whole is to be taken into consideration to find whether two marks are similar — If one of the features of

the mark is similar but there are other distinguishable features and there are dissimilar points in them and the unwary purchaser is expected to keep his eyes open, injunction should not be allowed, at least before hearing of the suit.

Anath Bandhu Shaha and others Vs. MIs. Premier Soap Co. Ltd; 5 BLD (HCD) 260

Ref. 30 DLR(HCD)244; 1970 PLD(SC) 460; 31 Reports on Patent Cases 63; 33 Reports on Patent Cases 257 and 25 Reports on Patent Cases 361 — Cited.

 

Order XXXIX Rule 1

Temporary injunction against proceeding with execution case— Temporary injunction to restrain the decree holder from proceeding with the execution case — Whether judgment debtor against whom a decree for recovery of possession was passed is entitled to restrain the decree holder— If an injunction is granted on the prayer of the judgment debtor, the object and purpose of the suit under section 9 of the Specific Relief Act will be frustrated — If the judgment debtor against whom a decree has been passed under section 9 can establish his title in a suit subsequently filed by him, he can get relief on the basis of the title so found in such suit — The defendant must first surrender possession to the decree holder in execution of a decree obtained by him in such a suit — No injunction can be granted on the plea of title to restrain the execution proceeding — Specific Relief Act, 1877 (I of 1877), S. 9.

Mosammat Mono wara Beguni Vs. Syed Asrafuddin and others, 6 BLD (AD)102

Ref: A.I.R. 1955 (All)64: AIR. 1972 (All) 418— Cited.

 

Order XXXIX Rule 1

Temporary injunction -— When to be granted — For grant of temporary injunction the Court need not enter into the merit of the case —The plaintiff having a prima facie and arguable case he would be entitled to an order of injunction pending the disposal of the suit so that the subject matter of the suit may not be wasted or destroyed — Appellate Court can consider facts of the case and the relevant laws violation of which is alleged in the suit for its satisfaction in order to decide as to whether the plaintiff is entitled to an order. of injunction. Md. Nurul Hoque Khan and others Vs. Bangladesh Bank, 6 BLD(HCD)3

Ref. 1BLD(HCD)129; PLD1964(SC) 21; IBLD(AD)103; 29DLR(SC)41 —Cited.

 

Order XXXIX Rule 1

Temporary injunction in a suit for partition — Whether injunction should be allowed pending partition of the suit properties by metes and bounds to prevent change of nature and character of the suit property — Nature and character of the suit land may be allowed to be changed pending decision in partition suit by improvements but no change in the nature and character of the suit land could be allowed if the same would diminish the value of the land or cause irreparable prejudice to the other co-shares — Co-sharers in urban areas should not be deprived of using the land in his possession by making construction at his risk — If a co-sharer chooses to make a construction at his own risk he should not be restrained from making construction

If any portion of such construction falls in the sof another co-sharer possession thereof shall be given to the allowed by demolition of the construction. Ali Ahmed Vs. Rezia Begum and others, 6 BLD (HCD) 326

 

Order XXXIX Rule 1

Power of Labour Court to grant injunction

When a Labour Court is deemed to be a Civil Court and has the same powers as are vested in the Civil Court, it must have power to grant injunction or stay the operation of an impugned order to preserve the subject-matter of the dispute until it is finally decided — These powers to pass temporary or adinterim orders are designed to preserve and protect the subject matter of the dispute under Order XXXIX Rule I of the Code pending final determination of the case. Pubali Bank Ltd. Vs. The Chairman, First Labour Court, Dhaka and another, 6 BLD (HCD)378

Ref. 29 DLR(HCD)148; 30 DLR (HCD 141; 19 DLR (Dac) 612; 33 DLR 376; Ii DLR (SC) 140— Cited.

 

Order XXXIX Rule I

Temporary injunction — Question of such injunction in a “passing off” action and t restrain the use of a trade name — The action taken by the respondent in getting existing orders of the company for supply of goods and machines to different customers cancelled cannot be approved — There is not only the case of close similarity between the two names likely to create confusion in the minds of the customers, hut also the respondent took definite steps to entice away customers from the company to his private business — In the circumstances he should be refrained from doing. Shafquat Haider and others Vs. M. Al-Amin and another, 7 BLD(AD) 130

Ref. Ch. D (17) 638; A.I.R. 1923 Born. 119; A.I.R. 1978 Guj. 216; All E.R. (1981)1 Vol. 2, Page 495; 42 Ch. D. 128; RPC Vol. 62- 63, Page-39; RPC Vol. 60-61, Page l33 A.I.R. 1942 Born 119—Cited.

  

Order XXXIX Rule 1

Injunction against lessee or used property

Temporary injunction to restrain the lessee of vested property and mandatory injunction to restore possession to the plaintiff dispossessed during pendency of the suit — Admittedly the plaintiffs themselves prayed for lease of the suit property which was rejected — The property having vested in the Government it was for them to grant lease to any body they liked unless the plaintiffs could make out a case of any prior claim to lease on the basis of some authority or principle — There having been no ostensible authority of the plaintiffs to maintain possession of the suit property, the Additional District Judge was clearly not justified in granting temporary injunction merely on the basis that the plaintiffs were in possession which was found unauthorised by the trial Court — Then again defendant No. I having already been put into possession pursuant to the lease granted in his favour, the Additional District Judge was also not justified in passing an order in a mandatory form for evicting the defendant and putting the plaintiffs in possession of the suit property. Pran Baltav Pal Vs. Santi Ranjan Salia, 7 BLD(AD) 187

 

Order XXXIX Rule 1

Injunction — Injunction to restrain Shilpa Bank from taking over or transfer of industrial concern indebted to the Bank — Whether Bank can be restrained from taking over or transferring such industrial concern — No Court shall issue, make or pass any order of adinterim or temporary injunction or any other order prohibiting or restraining the Bank any of its officers from such taking over or transfer Even when the Shilpa. Bank has not ken over the management and administration of any industrial concern the Court cannot is- we make or pass any order of ad interim or temporary injunction or any other order prohibiting or restraining the Shilpa Bank or any of its officers from such taking over or from making such transfer. Moon Light Silk Mills Ltd. Vs. Dan gladesh Shilpa Bank, 7 BLD HCD)239

Ref. I 8DLR(SC) 354; Cited.

 

Order XXXIX Rule I

Temporary injunction on the basis of inchoate right — Whether temporary injunction can be granted in favour of a person claiming inchoate right in the subject matter of suit — Inchoate right means a right that has just begun but not yet developed into maturity — A tenderer by making highest offer cannot acquire any right to purchase the vessel as his was not accepted by the Corporation which reserved full power to reject the offer — Concurrent findings of Courts below upon conception cannot entitle the appellant to temporary injunction on the basis of an right. Mozaher Swodagar Vs. Mr.M.Zahirul Alam, General Manager, Bangladesh Shipping Corporation and others, 8 BLD (AD) 29

Ref. 32 DLR (AD) 223; 5 BLD (AD)

1979 (SC) 1628:—Cited.

 

Order XXXIX Rule 1

Labour Court’s Power—Labour Court no power of the civil Court which empowers Labour Court, while adjudicating disputes other than industrial dispute, to grant temporary injunction — Temporary injunction can only be granted in a suit and by a civil Court by following the procedure of the Code of Civil Procedure — The power and procedure being absent with the Labour Court while adjudicating individual disputes and not industrial dispute there is no scope for a Labour Court to grant temporary injunction — Industrial Relations Ordinance, 1969 (XXIII of 1969) Ss. 34, 36 and 43; Specific Relief Act, 1877 (I of 1877) Ss. 52 and 53. Chairman, Chittagong Port Authority Vs. Kalipada Dey and others, 8 BLD (IWD) 52

Ref. 29 DLR l48;30 DLR l4l; 30 DLR (SC) 251; 19 DLR 612; 33 DLR 376:6 BCR 129; I BLD (AD) 21; PLD 1972 Lahore 603;— Cited.

 

Order XXXIX Rule 1

Status Quo — Meaning of — When a Court passes an order directing the parties to maintain status quo the meaning of the expression status quo has to be gathered from the plaint, petitions of parties, written objection, written statement and the petition or petitions filed by the parties praying for adinterirn order— The order directing the parties to maintain status quo till disposal of the Rule meant that if the defendants were managing and running the affairs of the school they will continue to do so. Managing Committee, Mohammadpur Girls High School Vs. Fazjur Rahman Khan and others, 8BLD (HCD) 45

Ref. 1968 SC MR 557; 2 BLD (AD) 154:— Cited.

Order XXXIX Rule 1

Temporary injunction — Principles to be followed in granting such injunction in election matters — Question of balance of convenience and inconvenience in election matter — In a contested election the voters are entitled to exercise their valuable right of francise and they will be debarred from exercising the same if one of the candidates is restrained from contesting and the other candidate steals a march over his adversary by contesting the election, then the restrained candidate will have no remedy but to challenge the election by filing an election petition giving rise to multiplicity of proceedings— But if an injunction is granted the plaintiff will be at liberty to contest the election and he will not suffer any irreparable loss and injury— Thus the balance of convenience and inconvenience is against the plaintiff.

Nurul Apser Vs. Mafizur Rahinan Chowdhury and others, 8 BLD (HCD) 377

Ref. 5 DLR 451; 6 DLR 434; 9DLR 394;5 BLD (AD)54; 39 DLR 322; 22 DLR (SC)98; 22 DLR (SC) 41; A.I.R. 1929(PC) 95; 37 DLR 49; I.L.R (1944) Lahore 168 — Cited.

 

Order XXXIX Rule 1

Co-sharer’s right to injunction — Co-sharers in exclusive possession of their separate shares are seeking protection to maintain their exclusive possession from the onslaught of the other co-sharers who got no possession in the particular share, which is in plaintiff’s exclusive possession — Co-sharer not in possession but having the plea that he has got title to every inch of the joint property and his co-sharers are in possession of some lands in excess of their shares, his remedy lies in a suit for partition.

Moharram Au and another Vs. Mohaminad Madhu Mia and others, 9 BLD (AD)67

Ref. 18 I.L...R Cal 10; 11 DLR4O; 5DLR39; II C.W.N. 517; A.I.R. 1924 (Cal)

792; A.I.R. 1943 (All) 247; 17 Indian Appeals

110; —Cited.

 

Order XXXIX Rule 1

Injunction — Maintainability of — The plaintiff has on his own showing made a transfer of land before his own settlement was completed — He having parted with the land under proposed settlement, he was not entitled to an order of injunction to maintain his alleged possession.

Belayet Hossain Vs. Nurul Alam Mir and others, 9 BLDAD) 167

 

Order XXXIX Rule 1

Election Tribunal — Extent of its jurisdiction — Whether it is competent to pass orders for temporary injunction — Election Tribunal would have the powers of a civil Court trying a suit under the Code of Civil Procedure only for decision of the matter before it and not beyond — It is not a Civil Court under the Civil Courts Act, 1887 and it is not a part of the judicial system of the country. The Tribunal was created for a limited purpose by a special law and it is under the superintendence of the executive authority — The power of transfer of an election petition is wit the Election Commission, not with the District Judge, the appellate authority, which indicate that the Election Tribunal is not amenable provisions of the Code of Civil Procedure — The appellate Tribunal also could not be considered a Civil Court only because the appellate authority of the Tribunal has been found to be a Civil Court — True, there is incongruity the appellate authority has one character an the Tribunal has a different character — It is for the legislature to bring about a uniformity between the superstructure and the infrastructure of an institution — Since the Election Tribunals are not civil Courts, the also are not amenable to the revision jurisdiction of the High Court Division Local Government (Union Parisahds Ordinance, 1983, S. 29. ; Union Parishad (Election) Rules, 1983, Rules. 47 and 48.

Mahmud Hussain Vs. Md. Sayed Au and others, 9 BLD (HCD) 173

Ref. 27 DLR 388; 28 DLR 189; 29 DLIII; 38 DLR (AD)l72; 37 DLR 71; 3 DLR(HCD) 41; 38 DLR 262; 38 DLR(HC 435;31 DLRII9;38DLR198;—Cited.

 

Order XXXIX Rules 1 and 2

Ad-interim injunction — Refusal

prayer for such injunction in a suit when justified — The proceedings in such a suit known these days ‘public litigation’ do not partake of pre-deter mined private law litigation model and need for judicial intervention may not artist even in those cases where the Court’s jurisdiction is invoked, if the administration take curative measures meanwhile — In this view, the petition for special leave to appeal again refusal of interim injunction is dismissed. Ziaul Huq and others Vs. Messers Business Resources Ltd. and others, 10BLD (AD) 17

Ref. AIR. 1988 (SC) 2211; AIR. 1987

(SC) 359; A.1.R.1988 (HP) 4(9); = Cited.

 

Order XXXIX Rule I

Execution proceeding—Injunction against—Question of correct exercise of discretion — The Bank’s suit for realisaturn of money from its debtor ended in a compromise decree When the Bank started execution case for sale of the debtor’s property under equitable mortgage, the appellant filed a suit for specific performance of his contract against both the Bank and the debtor on the basis of an agreement for sale of the property and prayed for and obtained an order after— junction h which the Bank was restrained from proceeding with the execution case till disposal of the suit — On appeal the High Court Division set aside the injunction order omitting from consideration the material point i.e: payment of money and appellant’s possession of the land — High Court Division does not therefore appear to have correctly exercised its discretion in interfering with the trial Court’s Order. Md. Moinin Miah and another Vs. Moulvi Moinuddin Hossain and another, 10 BLD (AD) 122

 

Order XXXIX Rule I

Interlocutory matter

It is well-settled that the Court will not decide a point especially in the interlocutory matter which will not advance the cause of justice — It will merely delay the process of coming top a conclusion as to claim and counter-claim which can only be thrashed out in the pending suits on taking e evidence. The Dhaka Dyeing and manufacturing Co. Ltd. Vs. Agrani Bank, 10 BLD (.4D) 265

Order XXXIX Rules I and 2

Temporary injunction —Respondents instituted a suit for permanent injunction impleading defendant appellants — plaintiffs failed to gel, an order of injunction from either of the Courts below since the institution of the suit — Further application for revision was moved 3 months after the refusal of the prayer of injunction by the Court of appeal below — In such circumstances, the granting of ad interim iflj1iflction ex-parte at the time of Issuing the Rule, whether can be said to he a proper exercise of discretion?

It cannot be said to be a proper exercise of discretion — rather it should be considered to be an unusual order in the facts and circumstances of the case. Qari Nowab Faruque and another Vs. Abdul Latif Bhuiyan and others, 10 BLD(AD)288

 

Order XXXIX Rule I

Injunction against holder of bill of exchange

A holder of a bill of exchange in due course is entitled to encash the same on maturity and payment to him cannot be restrained by injunction Negotiable Instruments. Act, 1881 (XXVI of 1881). Ss. 5 and 9. Exportos India Vs. Rupashi Garments. and others, 11BLD (HCD) 65

 

Order XXXIX Rule 1 read with Order XLII Rule 1(r), Order XLVII and section 151 C.P.C.

Rejection of an application of injunction — It is a well-settled principle of law that where a legal remedy is provided for in the Code of Civil Procedure to an aggrieved party the inherent power shall not be exercised under section 151 C.P.C. Atash Au and others Vs. Rebati Mohan Sarker and others,11BLD(HCD)97

Ref. 4ODLR (AD) 406: 42 DLR 19 Cited.

 

Order XXXIX Rules 1 and 2

Temporary injunction

In order to get an order of injunction from any Court, the application must satisfy the Court that he has prima facie case and further that there is an obligation in his favour which the defendant owes but threatens to commit breach of such obligation and that unless he gets an order of injunction, his legal right will be frustrated and that the injury would be irreparable if no such order of injunction is granted.

Court must vindicate or protect the legal right and further keep watch so that such right is not in any way fettered —— It must not create any hindrance or impediment in the exercise of such right and no order of injunction is to be issued restraining the exercise of a legal right. Md. Badsha Miah and others Vs. Tofael Ahined Chowdhury aizd others, 12 BLD(HCD) 78

Ref. XVII Indian Appeal. page 222 — Cited.

 

Code of Civil Procedure [V of 1908] 

Order 39, Rule 1 and 2 read with Section 56(a) and (b)

Specific Relief Act [I of 1877]

Temporary injunction. An injunction cannot be granted-

(a) to stay a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;

(b) to stay proceedings in a Court not subordinate to that from which the injunction is sought; The Court of 5th Additional family Court, Dhaka is not subordinate Court of this Court. That's why I am in a view that there is a legal bar to stay the proceedings of suit No. 210 of 19 pending in the Court of 5th additional family Court, Dhaka under aforesaid section.

The High Court Division opined that the Court of 5th Additional family Court, Dhaka is not subordinate Court of this Court. That's why the High Court Division is in a view that there is a legal bar to stay the proceedings of suit No. 210 of 19 pending in the Court of 5th additional family Court, Dhaka under aforesaid section. The above quoted finding of the learned Joint District Judge, 4th Court, Dhaka certainly indicates that the learned Joint District Judge considered all aspects of the case and thereafter, recorded the order of rejection. Besides, on going through the impugned order together with the application for injunction, it appears that the application for temporary injunction is incompetent, misconceived, ill advised and that the plaintiff filed the application for temporary with malafide intention to frustrate the Family suit No. 210 of 2019. Thus, the High Court Division does not find any substance in this first miscellaneous appeal. In the result, the first miscellaneous appeal is dismissed summarily. Abir Ahmed Shamim -Vs- Soniya Akter Munni and others. (Civil) 23 ALR (HCD) 18 

Code of Civil Procedure [V of 1908]

Order 39 Rule 1-In a suit for partition the plaintiffs and the defendants stand on the same footing and in every inch of the suit property in a suit for partition, the parties have their possession.

The High Court Division observed that the Title Suit No. 76 of 2001 being a very old suit, the High Court Division is of the opinion that this Civil Revision Case should be disposed of with the direction to the trial court to dispose of the Title Suit No. 76 of 2001 within a time frame specified by the High Court Division and that will meet the ends of justice amply. In the result, the Civil Revision case is disposed of with direction to the trial Court to dispose of the Title Suit No. 76 of 2001 within 90 days from the date of receipt of this judgment. The parties to the suit are direction to maintain status-quo in respect of the possession and position of the suit land till disposal of the suit. Most. Asia Khatun and others Vs. Mrs. Ashura Begum and others (Civil) 18 ALR (HCD) 399-400

Code of Civil Procedure [V of 1908] 

Order 39 Rule 1-A petition for temporary injunction, prohibitory or mandatory, arises out of a suit as such any order to be passed on such a petition must be confined within the periphery of the plaint and only deal with the subject matter and parties of the suit.

The High Court Division held that in this case the impugned order was passed with regard to an extraneous matter and against a third person. The impugned order of mandatory injunction will cause irreparable loss and injury to a third person, namely, Mr. Salauddin, but will not in any way benefit the plaintiffs since the plaintiffs right or entitlement to get allotment of category D-2 houses is yet to be determined by the Court. In the above backdrop it is crystal clear that the learned Additional District Judge has failed to apply his judicial mind in the facts and circumstances of the case and most illegally passed the impugned order which is not tenable in law. The High Court Division finds merit in the instant Civil Revision Case and the Rule deserves to be made absolute. In the result, the Rule is made absolute. The Deputy Commissioner and Chairman, District Housing Board, Chattogram & others -Vs- Md. Rezaul

Karim Hadier & another (Civil) 18 ALR (HCD) 115-117

Code of Civil Procedure [V of 1908]

Order 39, Rule 1

The respondent is not entitled to be heard by the Appellate Division since no concise statement has been filed by him.

More than 20 years have elapsed since the filing of the application for temporary injunction without any order of injunction having been granted. The High Court Division also did not pass any interim order and the parties are managing without any order of injunction or status quo. There was no order to stay the proceedings of the suit, which should have been heard and disposed of in the long gap of 16 years that has elapsed.

The Appellate Division points out that it was quite improper for the High Court Division to pass a summary order of remand with a direction to the lower appellate Court to rehear the appeal, without hearing the opposite party. In any event, the map produced before the High Court Division can be taken into consideration by the trial Court when dealing with the suit in question. In such view of the matter, the Appellate Division finds merit in the appeal, which is allowed, without, however, any order as to costs. The impugned judgement and order of the High Court Division is hereby set aside. The trial court is directed to hear the suit expeditiously, in accordance with law after duly serving summons upon the parties, Prabartak Shangha and others Vs Mahmud Ali Khan and others (Civil) 21 ALR (AD) 206-208 

Code of Civil Procedure [V of 1908] 

Order 39 Rule 1 and 2 read with 

Order 40 Rule 1

In a suit for partition no order of appointment of receiver can be passed in a casual manner rather it requires special care and scrutiny and the order of appointment of a receiver in a case like the instant one ought to have been sparingly used since appointment of a receiver is to be considered as one of the harshest remedies for the enforcement of a right to property.

The High Court Division hold that the only remedy available to the plaintiffs can be granted by giving a direction upon the defendants to pay a particular amount of money out of the rent accrued from the property situated over the suit land if it is prayed for by the party concerned before the appropriate forum and order of appointment of receiver for that matter and order of injunction cannot be sustained but in the meantime the High Court Division has also noticed that this view of this court has not been approved by the Apex Court, therefore, the High Court Division refrains from passing any order like that but the fact remains that order of appointment of receiver or for that matter an order of injunction cannot be sustained under the facts and circumstances disclosed above more particularly when the share of the plaintiff is yet to be specified upon disposal of the suit at its ultimate hearing, therefore, the High Court Division finds substance in this appeal. Accordingly, this appeal is allowed. Laila Anjumanara Shirin and others. -Vs- Haji Khairunnessa and others. (Civil) 20 ALR (HCD) 86-89

Code of Civil Procedure [V of 1908]

আদেশ ৩৯ রুল ১ ও ২

আবেদনকারী যে সকল প্রতিকারের প্রার্থনায় অস্থায়ী নিষেধাজ্ঞার দরখাস্ত আনায়ন করে, সে সকল কার্যক্রম ইতিমধ্যে সম্পাদিত হয়ে গেছে। ফলে, অস্থায়ী নিষেধাজ্ঞার দরখাস্তে প্রার্থীত প্রতিকার অর্থহীন।

শুনানীকালে উভয়পক্ষের বিজ্ঞ আইনজীবীগণের বক্তব্য থেকেই প্রতীয়মান হয়েছে যে, ইতিমধ্যে অর্কিত স্মারকের প্রেক্ষিতে ১৩৮ জনকে জেলা শিল্পকলা একাডেমি, গাইবান্ধার নতুন সদস্য হিসেবে অন্তর্ভূক্ত করা হয় এবং পরবর্তীতে যথারীতি নির্বাচনের মাধ্যমে কার্যনির্বাহী কমিটি গঠন করা হয়। উল্লেখ করা আবশ্যক যে, রেসপনডেন্ট- প্রতিপক্ষে দাখিলকৃত কাগজাদি পর্যালোচনায় দেখা যায়, বাংলাদেশ শিল্পকলা একাডেমি কর্তৃক তর্কিত স্মারক মূলে ১ নং বিবাদীর গঠিত এডহক কমিটিকে অনুমোদন দেয়া হয় এবং পরবর্তীতে নির্বাচনের মাধ্যমে কার্যকরি কমিটি গঠন করা হয়। ১ নং বিবাদী জেলা প্রশাসক, গাইবান্ধা ও সভাপতি, জেলা শিল্পকলা একাডেমি, গাইবান্ধা এর বিগত ১৮:৬.১৪ ইং তারিখের ৪৮১৭) নং স্মারক মূলে গঠিত ০৭ সদস্য বিশিষ্ট এডহক কমিটিকে বাংলাদেশ শিল্পকলা একাডেমী, সেগুনবাগিচা, রমনা, ঢাকা এর মহাপরিচালক কর্তৃক ১০.০৭.১৪ ইং তারিখে স্বাক্ষরিত বিগত ১৪০৭ ১৪ ইং তারিখের বাশিএ/ প্রশাঃজেশিএ। সাঃ/ গ-৪৮/৮৮/৩১ (১৩) নং স্মারক মূলে অনুমোদন দেয়া হয় এবং পরবর্তীতে জেলা প্রশাসক, গাইবান্ধা ও সভাপতি, জেলা শিল্পকলা একাডেমি, গাইবান্ধা কর্তৃক ০৩০৯:১৪ ইং তারিখে স্বাক্ষরিত একই তারিখের ০৫৫৫৩২০০ ০২২৪৩.০০৭.১৪-৮৯৯ নং সস্মারক মূলে ১৪ সদস্য বিশিষ্ট একটি পূর্ণাঙ্গ কার্যনির্বাহী কমিটি গঠন করা হয়, যা বাংলাদেশ শিল্পকলা একাডেমী, সেগুন বাগিচা, রমনা, ঢাকা কর্তৃক বিগত ১৩.১০.১৪ ইং তারিখে বাশিএ/ প্রশাঃজেশিএ/ সাঃ/ গ-৪৮/৮৮/৩৪৭(১৪) নং স্মারক মূলে অনুমোদিত হয়। আবেদনকারী যে সকল প্রতিকারের প্রার্থনায় অস্থায়ী নিষেধাজ্ঞার দরখাস্ত আনায়ন করে, সে সকল কার্যক্রম ইতিমধ্যে সম্পাদিত হয়ে গেছে। ফলে অস্থায়ী নিষেধাজ্ঞার দরখাস্তে প্রার্থীত প্রতিকার অর্থহীন। উপরোক্ত অবস্থাধীনে অত্র রিভিশনে কোন সারবত্তা নাই। ফলশ্রুতিতে খরচের বিষয়ে কোন আদেশ প্রদান না করে রুলটি খারিজ করা হলো। আলাল আহমেদ এবং অন্যান্য-কনাম- জেলা প্রশাসক, গাইবান্ধা (Civil) 20 ALR (HCD) 81-83

Code of Civil Procedure [V of 1908] 

Order 39 Rule 1 and 2 read with

Section 151

Since the party has a prima-facie arguable case, he should not be restrained from making construction on the suit land as he is taking the risk that a portion of the construction will be liable to be demolished if the plaintiffs get a decree in future in the scheduled land.

It appears to the High Court Division that the Opposite party No. 30 has submitted the deeds of the purchased land, the rent receipts, mutation khatian, approved plan of Chattogram Development Authority, payment of Holding Tax, Electricity bills etc. These documents are prima-facie show title followed by exclusive possession of the defendant-opposite party No. 30. Moreover, the local inspection report submitted by the Advocate Commissioner on 08.02.2016 stating that defendant- opposite party No. 30 is in possesion of the suit land. It also appears that opposite party No. 30 has already constructed one 6- storied building namely 'Rowshan Monjil' and has started another multi-storied building taking approval from Chattogram Development Authority and 8 pillars have already been constructed on the said suit land. Now, if he is restrained by way of injunction or status-quo at this stage, defi- nitely opposite party will suffer irreparable loss and injury as construction cost will rise from time to time. It is apparent from the above discussions that balance of convenience and inconvenience is against the plaintiffs-petitioners rather it is in favour of the opposite party No. 30. Considering the above facts and cir- cumstances of the case, prima-facie it appears that the defendant-opposite party No. 30 is in possession of the suit land. In the High Court Division's opinion nature and character of a suit land may be allowed to be changed by improvements, pending decision of the partition suit on merit. On the other hand, no change in the nature and character of suit land would be allowed which would diminish the value of the land or cause irreparable loss and prejudice to the other co-sharer of the land. Furthermore, the High Court Division is of the opinion that due to scarcity of accommodation in urban areas, co-sharer should not be deprived of in his possession by making construction at his own risk. In such a situation, the High Court Division is of the view that since defendant-opposite party No. 30 has a prima-facie arguable case, he should not be restrained from making construction on the suit land as he is taking the risk that a portion of the construction will be liable to be demolished if the plaintiffs get a decree in future in the scheduled land. Monjur Alam and others Vs. Rezia Begum and others (Civil) 15 ALR (HCD) 237-242

Code of Civil Procedure [V of 1908]

Order 39 Rule 1 and 2-The Order rejecting petition temporary for injunction squarely falls under Order XLIII Rule 1(r) of the Code and it is appealable and not revisable and Revision Petition before the High Court Division is not maintainable.

The High Court Division held that it is clear that on this particular point, the Rule is also not maintainable. However, the petitioners had an option to file an application for converting the Revisional application into a First Miscellaneous Appeal but they did not take any step to avail this opportunity till delivery of the judgment. From the above facts and circumstances, the High Court Division is of the opinion that the learned Court below did not commit any error of law by rejecting the application for temporary injunction. Monjur Alam and others -Vs.- Rezia Begum and others (Civil) 15 ALR (HCD) 237-242

Code of Civil Procedure [V of 1908] 

Order 39 Rule 1 and 2 read with Section 151

If both the parties are claiming to be in possession and the question of possession is a disputed of facts and only can be decided by taking evidences by the trial Court.

The learned Advocate appearing on behalf of the appellant only submits that if the parties are directed to maintain statusquo till hearing of the main suit he has no objection. On the other hand the learned Advocate appearing on behalf of the defendant respondent submits that by dint of the order of status-quo he will sustain loss and injury and moreover there will be no process of mutation, however he claimed that he is in possession. Heard the learned Advocates. The plaintiff Appellant also submits that he is in possession. In that case if both the parties are claiming to be in possession and the question of possession is a disputed of facts and only can be decided by taking evidences by the trial Court. Under such facts and circumstances, the parties are directed to maintain status-quo in respect of position and possession of the suit property till disposal of the main suit and the Court below is directed to dispose off the Suit within 3 (three) months from date of receipt of this order. With such direction the appeal is disposed of and connected Rule is also disposed of. Mollik Taibur Rahman Vs. Sarder Mahmud Ali and others (Civil) 19 ALR (HCD) 222-223

Code of Civil Procedure [V of 1908]

Order 39 Rule 1, 2 and 4-The Court can pass an order of temporary injunction in the absence of the defendants, but in that case it is to be determined that the notices were duly served upon them and despite that they did not appear to oppose the application.

The High Court Division finds no such satisfaction on the part of the Assistant Judge in passing the order of temporary injunction dated 03.05.2010. The Court simply passed the order of temporary injunction in a casual manner on the finding that the plaintiff has been able to make out a prima facie case. Subsequently, on the application filed by the defendants under Order 39 Rule 4 of the Code, the matter was heard at length by the Assistant Judge, and on consideration of the materials on record the Court was pleased to vacate its earlier order of temporary injunction and consequently rejected the application under Order 39 Rule 1 and 2 of the Code by the order dated 10.08.2010. Md. Abdur Razzak Vs. Sajibor Rahman and others (Civil) 19 ALR (HCD) 421-424 

Code of Civil Procedure [V of 1908]

Order 39 rules 1 and 2- Whether the High Court Division has committed error of law in recalling the order of status-quo in one hand and directing the parties to maintain status-quo on the other hand.

The High Court Division directed the trial Court to conclude trial of the suit within 6 (six) months from the date of communication of the order which was passed on 22.11.2017. The Appellate Division is of the view that proper course would be to direct the trial Court to conclude the trial of the suit within the period of 6 (six) months from date. Meanwhile, parties shall maintain statusquo in respect of possession and position of the suit land. With the direction made above, the petition is disposed of. Md. Nuruzzaman Khan -Vs.-Al-Haj Harun- Ar Rashid and others (Civil) 15 ALR (AD)231-232

Code of Civil procedure [V of 1908]

Order 39 Rule 2(3)-The High Court Division issued Rule calling upon the opposite parties to show cause as to why a proceeding shall not be drawn against the opposite parties for willful violation and disregards to the Hon'ble Courts Order dated 07.05.2013 passed in civil Rule No. 304 (F) of 2013.

It appears to the High Court Division that there was an order of Status-quo passed by this Court on 7. 5. 2013. The learned Advocate for the defendant petitioner served lawyer certificate and subsequently on 13.5.2013 entered into the house pre- mises, demolished some portion of the boundary walls and cut away some trees and they also erected pucca walls. The learned Advocate for the opposite parties though have denied that they have not received any notice but they are silent about the lawyer certificate. Further they did not deny the photo graphs as has been Annexed in the application as Annexure B series. The grounds taken by the opposite parties that no notice was served and as such they were not aware of such order of Status-quo is not correct. Lawyers notice was also served. Thereby knowing full well of the order of status-quo the plaintiff opposite parties have flouted the order of Status-quo order passed by the High Court Division. They have not also denied that notice was not served by the learned Advocate and it was not in their hand. The petitioners were ousted and for such nephu- rious activities of the opposite parties he has to made a GD on 12.5.2015. Considering those facts and circumstances, the Opposite parties are directed to restore the position and possession of the defendant petitioners as before within 30 days from the date of receipt of this order and also they are directed to pay fine of Tk. 5000/- each within the said period to the defendant petitioner, and to file affidavit of compliance before the High Court Division within two months from date of receipt of this order. In case of default they are to be put in civil jail and the police in that case will take appropriate action in case of further disobedience of the order passed by the High Court Division. Accordingly the Rule is made absolute. Abul Bashar Mridha and others - Vs.- Md. Delwar Hossain alias Badsha and others (Civil) 19 ALR (HCD) 36-38

Order XXXIX Rules 2

Injunction in a simple declaratory suit:

The principle that in a suit for declaration of title in the suit land simpliciter without any prayer for consequential relief the plaintiff is not entitled to ask for temporary injunction against the defendants restraining them from interfering with plaintiff’s alleged possession is generally applicable to a case where a suit for title relating to immovable property is filed and consequential prayer ought to have been made, but that having not beer done an injunction is sought for Normally this rule is to he observed, but it cannot be taken as an absolute rule, because if the suit is otherwise maintainable, and if it is found that the defendant without being in possession. wants to disturb the possession, the Court cannot be powerless to grant temporary injunction in an. appropriate case—The order granting injunction must be a speaking order. — Specific Relief Act, 1877(1 of 1877). S. 42.

Ramani Marak and another Vs. Jainni Marak and others, 1BLD (AI))57

Ref. l61)LR 272: 29 1)LR (SC) 168 — Cited.

 

Order XXXIX Rule 2

Temporary injunction — In a suit for specific performance of contract an order of injunction restraining alienation of property is unnecessary as section 52 of the Transfer of Property Act is evidently an adequate sate- guard.

Haji Md.Elias and another Vs. Mrs. Suraya Rahman, IBLD(HCD)147

Ref. A.l.R. 1930 (All) 387; AIR. 1938 (Lah) 220 — Cited.

 

Order XXXIX Rule 2

Adinterim injunction — Elective institutions — The Court should always be cautious and slow in interfering with the functioning of Elective Institutions and should

be watchful not to allow abuse of the process of the Court by persons who want to nullify the result of an election with the aid of an adin—terim order of the Court.

Ashrafuzzaman and others V.c. Md. Saruj Au and others, 1BLD(HCD) 379

 

Order XXXIX Rule 2(3)

Trial of violation case by a Transferred Court

Violation of injunction — transfer Court competent to punish violation of injunction granted by the transferor suit — Court granting an order of injunction includes a Court before which the suit in subsequently transferred and Court which is in seisin of the entire suit — Transfer Court to which the case is transferred under section 24 of the C.P.C. is competent to de with the cases of breach of injunction and it i not to be confined to the Court granting the injunction.

Dilip Kumar Chakravorty Vs. Muuyeed Chowdhury and others, 3 BLD (HCD) 49

Ref. AIR. 1914 Cal. 815; 61. C.L.J. 541 A.1.R. 1962 Cal. 519; A.1.R. 1962 Pat. 441 A.I.R. 1923 Mad 92; A.I.R. 1968 (Punjab Hariana) 374; — Cited.

 

Order XXXIX Rule 2(3)

Violation of injunction — Punishment for such violation — Whether a transferee Court which did not punish the order of injunction is competent to punish for violation of injunction — ‘Court granting an injunction’ — Whether the expression would mean the Court’ to which the whole case has been transferred?—.- When the scheme of the Code is looked into and sections 121. 1 22 read with section 1 28 make it clear the section I 50 is intended to be decisive In the view of’ the matter the transferee Court has jurisdiction to pass necessary order in case of violation of an injunction order passed b a Court other than it.

Abdul Huque Vs. Mrs. Zainab Beguni and others, 4BLD (AD) 296

Order XXXIX Rule 2(3) read with section 151 C.PC.Contempt proceeding — Whether maintainable under section 15 I C.P.C. 7— No Court can be supposed to have inherent power to disregard the express provisions of law, whether in the Code or any other statutes or Conviction and sentence of the appellant for contempt of Court is set aside as no appropriate proceeding for contempt was initiated.

Md. Hazrat Au Vs. Joyizal Abedin and others, 6BLD(AD) 45

Ref. AIR. 19l9(Cal44——Cited.

Order XXXIX Rule 2(3)

Violation of Court’s Order — Court is to frame issue disclosing all material particulars — In a proceeding bringing legation or volition of an injunction order passed by a Court against offenders, the Court just frame issues in such a manner so that all elements of a charge under criminal jurisdiction find place in the issue.

Sultan Ahined Howlader and others I. Hahihur Rahman Munshi, 7BLD (HCD) 73

Order XXXIX Rules 1 and 2

Temporary Injunction in service matter—Temporary injunction — In a where the order impugned appears to be without jurisdiction on the face of it or in violation of any law or rule governing the employment in service a Court can legitimately a prayer for temporary injunction — matter of service a Court has also to keep in view the difficult and problems that are likely to he created in the matter of administra1 in the particular office before allowing temporary injunction — The plaintiff was promoted on ad-hoc basis and subsequently sent hack to his original post — such are not unusual in any administration — District Judge set aside the order of opinion on the grounds of balance of convene and inconvenience and that the plaintiff at compensated by money in the event of his success in the suit — The impugned judgment of the High Court Division has not given any reason to negative his findings — The exercise of discretion by the High Court Division has been made upon correct judicial principles

Bangladesh Sericulture Board and another Vs. Md. Faziur Rahrnan akunjee and another, 9BLD(AD)7

 

Order XXXIX Rules 2(3)

In a proceeding initiated upon an application under sub-rule 3 of Rule 2 of Order XXXIX of the Code of Civil Procedure bringing allegation for violation of an injunction order passed by a Court against the offenders, the trial Court must frame issues in such a manner so that all the elements of’ a charge under criminal jurisdiction find place in the issue, so that the persons against whom the allegation of violation of Court’s order s brought is in no way misled by such issue to be prejudiced in their trial.

Abdul Matin and others Vs. A.K.M. Badruzzaman and others, 12BLD(HCD)544

Ref. 7 BLD 73; PLD 1952 (Lah) 77: 9DLR 444 — Cited.

 

Order XXXIX Rules 7 and 8

Commissioner for inspection and preparation of inventory — Whether notice to show cause should be issued against the other side before ordering the appointment of’ such a Commission — Ordinarily notice is to he given to the defendant before an order is passed under Rule 7 of Order XXXIX of the Code — For protecting the rights of the parties or for securing the cause of justice the Cowl can, however, pass an order in an appropriate case for inspection and preparation of an inventory without giving any notice to the defendant.

Moham mad Mobarak Hossain add others Vs. Mohammad Mustafci Hossain and others, 7 BLD(AD) 263

Ref. A.I.R. 1961 (SC) 218: A.I:R. 1978

Cal. 296; 15 C.W.N. 353: A.4.R. 1975. (All)

399: A.I.R. 1980(Cal.) 184: 5 C.WN. 915: —Cited.

Order XXXIX Rule 7

Local inspection — its scope— such inspection connotes only visual perception and not hearing of witness.

Sukuinar Sen and others Vs. Guranga Bejoy Das and others, 9 BLD (AD)162

 

Code of Civil Procedure [V of 1908]

Order 40 Rule 1-Defendants are in possession of the land and structures described in schedule 1 of the plaint prayer for, appointment of Receiver in respect of the same land cannot be maintained particularly against a de facto possessor of the property.

The High Court Division held that the plaintiffs admitted the possession of the defendants over the property described in the schedule 1 of the plaint. Therefore, the High Court Division has no hesitation to hold that they are de facto possessors in the property, if that be so, the High Court Division can also refer another case Kamiruddin and others Vs. Md. Mokshed Ali Biswas and others reported in 48 DLR (AD)14. Where it has been held: "that simply because the property in suit was under the management of a Receiver for a long period of time it cannot be regarded as a just and convenient ground for appointment of a Receiver as Order XL rule (1) does not authorize Court to do so on such a ground, and no order for appointment of Receiver should be passed to deprive a de facto possessor in the property". In view what has been stated above, the High Court Division finds that in the context of the circumstances disclosed before the High Court Division, the High Court Division has no scope whatsoever to hold that it is just and convenient to appoint a Receiver as prayed for by the appellants in respect of the property in question. Therefore, the High Court Division is of the view that the impugned order has not occasioned any failure of of j justice rather the same is an well reasoned one. Zia Uddin Siddique Vs. Mohammad Hamidur Rahman and others. (Civil) 19 ALR (HCD) 257-261

Code of Civil Procedure [V of 1908] Rule 19A, order 41-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.

The Appellate Division held that 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 which ought to have been set aside. Furthermore, 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. The Appellate Division is, 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. Hence, the impugned judgment calls for interference by the Appellate Division. Accordingly, the appeal is allowed. Mahmuda Khatun and others Vs. Hamida Begum died leaving behind her heirs:1(Ka). Md. Aminur Rahman and others (Civil) 18 ALR (AD) 79-82

Order XL Rule I: Simple declaration of title for property under attachment b’ order of the criminal court

Property attached under section 145 or 146 of the Code of Criminal Procedure is in custodialegis — Suit for declaration of title without a prayer for recovery of possession in respect of such property is competent — Civil Court competent to appoint receiver in such suit Specific Relief Act. 1877 (1 of 1877). S. 42: Code of Criminal Procedure. 1898 (V of 1898). Ss. 145 and 146.

Jogendra Kuinar Dutta Vs. Nur Mohammad and others, 1BLD (Al)) 248

Ref. AIR. 1943 (PC) 94: AIR. 1938 (PC)73: AIR. 1966 (SC) 369 - Cited.

 

Order XL Rules land 2

Appointment of receiver — It is within the discretionary power of the Court — This power ma he exercised where it appears to the Court to be just and convenient to make it— when a receiver is appointed all the partners stand remised from management — It is only in the circumstances where parties have he- come so much antagonistic to each other that restoration of mutual trust and co-operation is an utter impossibility that appointment of receiver is restored to.

Mujibur Rahinan Sikder Vs. !Vlahbiihur Rahinan Sikder and others, 3 BLD(1I))164

 

Order XL Rules I and 2

Appointment of receiver in case of partnership — Where a partner misconducts or mismanages the business or misappropriate— ales funds or colludes with the debtors or partnership Lund is in danger of being lost or the whole concern is endangered then a receiver is appointed - If one partner excludes his copartner ruin his rightful interference in the management of the partnership affairs, or if he persists in acting in violation of partnership articles or he does not consult his partner on any point of importance or grossly misconducts himself the Court will interfere for the protection of the others rights —— Where the right of personal intervention has been forfeited by misconduct. or partnership funds are in danger of being lost, or a where a partner has so misconduct himself as to show that he is n. longer to he trusted, such as, he carries on private trade with the fund of the partnership firm, or he colludes with the firm’s debtors. or he has so grossly mismanaged the business to endanger the whole concern or he has made away with partnership fund, the appointment of a receiver is a must. Mujibur Rahman Sikder Vs. Mahbubur Rahinan Sikder and others. 3 BLD(AD)164

 

Order XL Rule I

Receiver in a partition suit— Appointment of receiver in a partition suit when permissible ?— As a general rule the appointment of a receiver in a partition suit has not met the approval of the Court — The existence of a dispute offers no ground for appointment of a receiver— Special circumstances must be proved before the Court will make such appointment - II there is no fear that the property in question is going to be destroyed or dissipated, the Court should be reluctant to appoint a receiver The reason that a plaintiff has prima facie case does not establish the necessity for appointment of’ a receiver — A receiver may he appointed if is considered just and convenient If the plaintiff is kept out of possession of his share or one of the parties is in sole occupation of the property or deprivation of a co-sharer may he a ground for appointment of receiver - Where peril or danger to the property appears to be great and imminent such appointment  he made -— There is no reason for appointment of a receiver when there is an order of injunction restraining the transfer of any property in question. Faiz Ahined Cli owdh ury and another Vs. Baktear Ahined Chowdrory and others, 4BLD (AD))22 9

Ref. PLD 1975 Lah 492; AIR. 1965

(On) 2l7 PLD 1977 (Lah) 830; 34 DLR 297: (1909) 14 C.W.N. 248; (1913) 17 C.W.. 974; (1913)18 C.W.N. 533: AIR. 929 (Lah 497 Cited.

 

Order XL Rules 1, 3 and 3

Functions of a Receiver—He being a statutory person the Court is obliged to see that he performs his functions properly and for the benefit of the trust — He does not enjoy a wider meaner of protection than is accorded to other accounting persons -— Accounts of the receiver oust he rechecked and re-opened by a qualified accountant notwithstanding that some

of the accounts passed by the Court after so, called checking by the Sheristadar —- When the receiver has submitted his accounts it is the dying of the Court to see whether all the collections have been entered and all the expenses properly made The receiver has discretionary power but I he spent any money for the benefit of the Estates without previous sanction of the Court he is entitled to the amount.

Moulvi Abdullah Welfare Trust Vs. K.A. Gani, Advocate and another, 4 BLD (M)) 329

Ref. 4 C.L.J. page 445: (1887) l9I.L.R.

23: (1892) 31 Ir 242: (lS8l) 6A.C. l8l(1877) 6 AC. 181: (1877) 9 Ch.D. 529: (1910) 13 C.L.J. 165:5 C.W.N. 233: (l876) 3  Ch. I). 4l I: (1906) 1 Ch. 1). 55: AIR. 1954 C.dcutta 386: Cited.

 

Order XL Rule I

Appointment of receiver — without notice to the other side—Appointment in a case where co—sharers have fallen apart One of the parties to a cause shall not be appointed receiver without the consent of the other unIess a very special case in made out.

Mahmuddun Nabin Chwodury Vs. Mahfuzu,, Nabi Chowdhurv, 4 BLD )IICb) 268

Ref. 2$l)LR (Al)) 65; 17 C.W.N. 974:-— Cied.

 

Order XL Rule I read with section 151 C.P.C

Appointment of receiver —— Whether Curt is to state the circumstances for apartment of receiver — The rule does not compete service of notice of the application for appointment of a receiver to the other party the learned Munsif has not stated the circumstances under which the appointment of a receiver was considered just and convenient and for preserving the property and that being the position the order is architrave and the appellate Court has erred in law in affirming the order.

Ref. 25 DLR (I-lCD) 252 Cited.

Abdul Mannan and others Vs. Govt. of the People’s Republic of Bangladesh and others, 7BLI) (HCI)) 360

 

Order XL Rule I

Appointment of receiver in a partition suit - Question of appointment of receiver in a partition suit In a partition suit between members of a joint family for partition of joint proliferates comprising agricultural land, homestead and pond, unless special circumstances are proved the Court will not appoint a receiver except by consent specially where the family property consists of land. Md. Musa and others Vs. Tajul Islam and others, 7 BLD(hCD) 363

Ref. 36 DLR (AD)97: AIR. 1920 (Bom)321 —— Cited.

Code of Civil Procedure [V of 1908]

Order 41 Rule 21 read with

Limitation Act [IX of 1908]

Section 5-The delay was not properly explained and the medical certificate showing illness of petitioner No. I did not support the whole period of delay and there were 19 applicants but other 18 did not take steps which was not believable.

The Appellate Division notes that the suit is of the year in 1977 and evidently the plaintiff-appellant-respondents appear to be using delay by tactics. The learned Judge disposing of the miscellaneous case for restoration of the appeal was correct in observing that every day of delay has to be explained. In the facts of the instant case the learned Advocate conducting the appeal died on 15.11.2002 and the appeal was dismissed for default on 25.05.2005. There is nothing on record to show what steps. had been taken or what orders had been passed during that period of three and half years. Moreover, the appeal had been dismissed for default on 25.05.2005 and the Tadbirkar having fallen ill on 01.01.2006, there is no explanation for inaction during the period 25.05.2005 to 01.01.2006. In view of the facts and circumstances discussed above, the Appellate Division is of the opinion that 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. The Appellate Division, therefore, finds 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. With the above discussion and observations the civil petition for leave to appeal is disposed of. The judgement and order of the High Court Division is set aside. Abdul Mannan Howlader others - Vs. Joinal Abedin and others (Civil) 22 ALR (AD) 119

Code of Civil Procedure [V of 1908]

Order 41, Rule 23-The settled law in our jurisdiction is that the execution and authorship of private document may be proved by the executant himself or by the attesting witness or by the scribe of the deed in question or by the person who knows the handwriting of the executant or by admission of execution by adverse party or by comparison between dispute signature and admitted signature or by procuring the opinion of thumb impression expert or by producing a thirty years old document from a proper custody.

The High Court Division held that if the execution is denied by the executant, the disputed deed may proved by any of the aforesaid manner. The execution of deed in question has amply proved and marked as Ext. Ka(1). Considering the above facts and circumstances of the case, it would not be advisable to send the case on remand as there is no apparent reason to do the same. Moreover, on perusal of the evidence on record the High Court Division is of the view that there is no apparent reason to interfere with the concurrent findings of the courts below. Consequently, the revisional application fails and accordingly, the Rule is liable to be discharged. For the reasons stated above, the Rule is discharged. Md. Abdus Samad and others Vs. Md. Amjad Hossain and others (Civil) 19 ALR (HCD) 120-123

Code of Civil Procedure [V of 1908]

Order 41 rule 23 read with Registration Act [XVI of 1908]

Section 60

The remand order should be avoided as far as possible, since both oral and documentary evidence having been available on record to decide the case on merit.

The High Court Division observed that in the case of Akitullah and others Vs. Zafala Begum and others reported in 54 DLR (AD) 74, it has been held that remand as contemplated under Order 41 rule 23 of the Code of Civil Procedure was not of matter of course or to fill in the lacuna in any party's pleading. In the case of Golam Rahamn Vs Hazera Khatoon, reported in 1 MLR (AD) 211, it has been held that remand of a suit for fresh trial to provide opportunity for introducing a new case of adverse possession is not sustainable. In view of the long line of judicial decision is to the effect that the remand order should be avoided as far as possible, the High Court Division is unable to accept the submission of the learned Advocate for the petitioner on the point of remand since both oral and documentary evidence having been available on record to decide the case on merit. The Court of appeal below having decided the case on consideration of the materials on record and in accordance with law, the same calls for no interference. Md. Abdus Sabur Mollah -Vs.- Md. Ahad Mollah and others. (Civil) 17 ALR (HCD) 20-25

Code of Civil Procedure [V of 1908]

Order 41 Rule 24-It is now settled that if there are sufficient evidence on record to resolve all the points in controversy, the Appellate Court is competent to determine the suit finally although the suit has been decided on a preliminary issue by the Trial Court.

The Appellate Division held that Rule 24 of Order 41 enjoins on an Appellate Court to determine a case finally where the evidence on record is sufficient for enabling it to pronounce a judgment. On consideration of the facts and circumstances of the matter the Appellate Division is of the view that there is no need for a remand of the case to the Trial Court. The learned Single Judge of the High Court Division, in the premises, has rightly remanded the case back to the lower Appellate Court for disposal finally. This petition merits по consideration. Accordingly, the leave petition is dismissed. Md. Abdul Wares and another - Vs. Md. Aminul Islam @ Photo Miah and others (Civil) 19 ALR (AD) 101-102

Code of Civil Procedure [V of 1908]

Order 41, rule 27-Registration, no doubt attaches a statutory presumption, which extends to the registration of the deed only. Such presumption is never intended to extend to the genuiness of the transaction or so prove execution and/or recital in the deed. The High Court Division observed that the learned Assistant Judge after proper scrutiny of the evidence gave finding that the plaintiffs father did not execute the Hiba deed (Exhibit- 7) and it was a forged document for which no consideration was paid. This findings of fact was concurred with by the learned Sub-ordinate Judge on similar assessment of the evidence. Thus it does not appear that the courts below throw any wrong onus on the defendant. This being a point of fact has been concluded by the concurrent finding of both the court below, same cannot be disturbed in this revision. Jobed Ali being dead his heirs Tabarun Nessa and others -Vs.- Musammat Momena Khatun and others (Civil) 18 ALR (HCD) 374-378

Code of Civil Procedure [V of 1908]

Order 41 Rule 31

Once a licency is always licency and without acquiring any title by any proper deed of transfer he cannot claim ownership. Mere mutation of a land in favour of anybody cannot create title.

The High Court Division held that admittedly, Sudhir Shome was licency of Narayan Dusad and in exchange of any proper deed as the High Court Division finds there is no reason to find that he accrued right by adverse possession over the land in dispute. The High Court Division further finds that the trial Court rightly found that the so called mutation cannot create any title in favour of anybody and also rightly found that the alleged deeds of transfer are collusive. But the High Court Division finds no reason for the trial Court to decreed the suit only in respect of 15 decimals of land rather the trial Court ought to have find decreed the suit in respect of the entire suit land in favour of the plaintiff since the said defendant Sudhir shome was nothing but a permissive possessor and being licency under Narayan Dusad the predecessor of the petitioners. The High Court Division found that the appellate Court did not reverse the finding of the trial Court regarding the aforesaid deeds and mutation. Finally, the High Court Division found that the appellate Court committed illegality in decreeing the suit being Title Suit No.35 of 1984 in favour of Sudhir Shome and dis- missing the Title Suit No. 265 of 1983. Accordingly, all the Rules being Civil Revision Nos. 4499, 4506, 4507, 4508 of 1997 are hereby made absolute. Rama Dusad and others Vs. Ashish Kumar Shome and others (Civil) 20 ALR (HCD) 4- 9

Code of Civil Procedure [V of 1908]

Order 41 Rule 33

The High Court Division erred in law by relying exclusively on the Advocate Commissioner's Report which was not admitted in evidence and as such the finding based on the said report to the effect that the parties to the suit were in exclusive possession of their shares in the suit land by an amicable partition was a perverse one and liable to be set aside.

An amicable partition is no partition in the eye of law. A co-sharer in possession of land less than his share is always entitled to pray for partition by bringing a suit in a court of competent jurisdiction and if his claim is proved he is entitled to get land partitioned through court. A co-sharer in possession of excess land than his share is bound to part with the same. The Appellate Division opined since the Advocate Commissioner did not dispose before the trial court nor the Court called him as witness his report was not admitted in evidence. In that state of the matter the High Court Division was not justified in relying on the same and reversing the judgment of the trial Court. In the facts and circumstances of the case and in view of the discussions made above, the Appellate Division is of the view that the reasonings given by the High Court Division for dismissing the suit are not at all tenable in the eye of law. All the appeals are, therefore, allowed without any order as to costs. Md. Abdul Noor @ Cunnu Mia & another Vs. Makhan Mia @ Md. Laisuzzaman & others (Civil) 22 ALR (AD) 27

Code of Civil Procedure [V of 1908] 

Order 41 Rule 31

The suit land is not specified and as such the prayer for recovery of khash possession is not main- tainable in accordance with Order 7 Rule 3 of the Code of Civil Procedure.

The Court of appeal below by the impugned judgment and decree, reversed the judgment of the Trial Court without controverting the material findings of the Trial Court with reference to the evidence on record, which in clear violation of Order 47 Rule 31 of the Code of Civil Procedure.

The High Court Division is of the view that the suit land as described in the schedule of the plaint is vague and unspecified and the plaintiffs have failed to prove their dispossession from the suit land as the P.Ws have contradicted in this respect in their depositions as rightly found by the trial Court. In the result the rule is made absolute. Shamsul @ Md. Shamsul Haque and another Vs. Md. Feroj Miah and others (Civil) 19 ALR (HCD) 330-335

Code of Civil Procedure [V of 1908] 

Order 41, rule 31

Any case of specific performance of contract is that the plaintiff must show that he offered the balance of the consideration money and that in spite of such offer, the defendant refused to execute and register the sale deed. The cause of action is founded on the refusal of the vendor to execute and register the sale deed upon accepting the balance consideration money.

The Appellate Division finds for the evidence and materials that, even assuming that Tk. 5,000/- was paid to the defendant, though it was not proved, admittedly the plaintiffs did not offer cash payment of the remaining Tk. 15,000/-. In fact plaintiff No. 1 issued a cheque and did not put sufficient money into his account for the defendant to get the sum of money mentioned on the cheque. There was a patent intention to defraud the defendant. The plaintiffs were, therefore, not with clean hands. Moreover, the plaintiffs did not state in his evidence that even after the cheque was dishonoured he outwardly or positively and openly offered the balance amount in cash. Saying "give the cheque back and I shall pay the money in cash" is not the same as saying, "here is the money, now execute the sale deed". In The Appellate Division's view, the plaintiffs did not offer the balance consideration money to the defendant. The Appellate Division's view is further supported by the statement of plaintiff No. I in his revisional application that the cheque was issued by him in connection with payment of rent. This statement alone belies the story of the agreement for sale and offer of balance money. Most. Ambia Khatun and others-V's. Sree Shuklal Turaha and others (Civil) 20 ALR (AD) 5. 10

Code of Civil Procedure (V of 19081 

Order 41 rule 31

It is settled that the appellate court being last and final court of fact will have to discuss and reassess the evidence on record independently while reversing or affirming the findings of the trial court. In case of reversal it is more incumbent upon the appellate court to reassess the evidence to arrive at his own independent finding.

The High Court Division held that the findings of the trial court 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. In the instant case, the High Court Division is of the view that specific findings of the trial court have not been reversed by the appellate court exercising its power which is mandatory provisions of law under Order XLI rule 31 of the Code of Civil Procedure, Zila Mahila Bisayak Karmakorta, Mahila Bisayak Adhidaptar, Pabna, Police Station and District Pabna. Vs Principal, Mohila College, Ishuardi, Police Station Ishuardi, District- Pabna. (Civil) 17 ALR (HCD) 54-58 

Code of Civil Procedure [V of 1908]

Order 41 Rule 31-The Appellate Division is well aware of the fact that generally appellate Court is the final fact finding Court. But herein, the trial Court and appellate Court did not con- sider oral evidence led by the parties and it escaped the notice of the appellate Court that D.W.15 for the Government stated during cross-examination that Raisa did not obtain permission from the Government to transfer her right to Badiur, but the High Court Division decidedthe appeal on the basis of examination in chief of this witness without perusing the cross-examination of the witness.Moreover, the abandoned property file was not also before the trial Court or the Court of appeal i.e. the High Court Division so as to consider it. Therefore, we had to examine and assess the entire evidence on record, oral and documentary, to ascertain the actual merit of the cases.

In fact the appeal was allowed by the High Court Division due to some unscrupulous Government Officials' illegal and collusive activities in favour of Khadiza. From the materials on record, it appears that the suit property is a Government Khas Mohal property and all parties failed to prove their respective case and unlawful lease extension period of Khadiza already expired. Raisa's lease period expired long before and she is not before us with any claim on the suit property. Therefore, the suit property is now a Khas Mohal property of the Government as the Abandoned Property Authority excluded it from the list of abandoned properties unlawfully and collusively Noor Mohammad Khan being dead his heirs -Vs-Raisa Aziz Begum and others (Civil) 18 ALR (AD) 148-172

Code of Civil Procedure [V of 1908]

Order 41 Rule 31 read with

Evidence Act [I of 1872]

Section 114 illustration (e) It is a cardinal principle of law that the plaintiff must prove his case in order to get a decree in his favour. The Appellate Division has held that the weakness of the defendants case is no ground for passing a decree in favour of the plaintiff. (reported in 39 DLR (AD) 237 and 1 ADC 101)

The Appellate Division observed that although the plaintiff claimed title to the land with support from Ext-1 the S.A. Khatian, he did not challenge the genuineness of the original volume of the S.A. record, which was produced before the appellate Court at the instance of the defendants. The appellate Court found on perusal of the volume in question that the suit property was duly recorded in the name of defendant Nos. 1-4 in the name of one Saira Bewa, wife of Chhoto Babu Mondal. In allowing the appeal by the defendants, the appellate Court took into consideration the rent receipts produced by the defendants showing payment of rent to the government. In view of the above facts and circumstances, it is abundantly clear that the judgement and decree of the trial Court was patently erroneous and based upon misreading of evidence. The appellate Court properly reversed the judgement of the trial Court. Evidently the claim of the plaintiff was falsified by the production of the S.A. record of rights, which falsified the claim of the plaintiff and, on the other hand, proved that the S.A. records were in the names of the defendants. As noted earlier, the judgement of the High Court Division is palpably erroneous, being contrary to settled principle of law and wrong interpretation of statute. In view of the above discussions, the Appellate Division finds merit in the appeal, which is accordingly allowed. Nazimuddin Mondal and another -Vs. Kushal Mondal (Civil) 18 ALR (AD) 25-29

Code of Civil Procedure [V of 1908]

Order 41 Rule 31-The appellate court did not discuss any of the evidence of the witnesses, and without reversing the point decided by the trial court upon framing issues on this point of limitation and defect of parties, appellate court set- aside the judgment of the trial court and decreed the suit of the plaintiff, and committed an error of law in the deci sion occasioning failure of justice.

The High Court Division held that the appellate court as the last court of fact without complying with the provision of Order 41 Rule 31 of the Code of Civil Procedure improperly passed the impugned judgment and decree and decreed the suit and committed an error of law in the decision occasioning failure of justice Thus, the judgment and decree passed by the appellate court is liable to be set-aside. In the result, the Rule is made absolute without any order as to cost. Musammat Sarefa Khatun and another -Vs- Musammat Rasheda Khatun and others (Civil) 15 ALR (HCD) 288-291