The Bangladesh Supreme Court (Appellate Division) Rules, 1988
Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Order XIX, rule 3 Concise statement- Caveat was filed on behalf of the respondent, no concise statement has been filed by the respondent in the past more than 15 years since grant of leave by this Division. In such circumstances, in view of Order XIX, rule 3 of the Appellate Division Rules, the respondent is not entitled to be heard by this Division since no concise statement has been filed by him. Prabartak Shangha VS Mahmud Ali Khan, [9 LM (AD) 679]
Order XX, rule 5
In similar way, the maintainability of the writ petition on the ground of avail- ability of the alternative efficacious remedy before the Administrative Tribunal was also neither taken in the affi- davit-in-opposition nor at the time of hearing of the Rule and also in the leave petition and the concise statement. Ac- cording to the provisions of Order XX, rule 5 of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988 the appellants were not legally en- titled to argue the above points. Secretary, Ministry of Establishment vs. Amzad Hossain (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 290
Order XX, rule 5-We are not inclined "to revisit" the decision in the case of Mona @ Zillur Rahman vs State 23 BLD (AD) 1879 BLC (AD) 125 as opined by him. However, in an appropriate case, the question may be looked into with notice to the State. (Per Md Abdul Wahhab Miah J. majority) Mehedi Hasan @ Modern (Md) vs State, 66 DLR (AD) 111
Order XX rule 5-Order XXII rule 13-Even without exercise of inherent power, this Division can alter the conviction to one of murder in pursuance of the criminal conspiracy. Rule 13 of Order XXIII, rule 5 of Order XX of the Appellate Division's Rules are applicable to criminal appeals, and there is no legal bar to convict them even if no leave was granted on this point. (SK Sinha, J. agreeing with Nazmun Ara Sultana, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13
Order XXIII, Rule 13 & Order XX, rule 5- Rule 13 of Order XXIII, rule 5 of Order XX of the Appellate Division's Rules are applicable to criminal appeals, and there is no legal bar to convict them even if no leave was granted on this point-
The evidence on record proved beyond doubt that the killing was perpetrated in pursuance of a conspiracy and therefore, it is consonance to law and justice that the respondents should be awarded a legal conviction of an offence on the basis of the evidence on record. If a graver sentence is provided for murder in pursuance of conspiracy, the question of prejudice would have arisen. Here the respondents have not acquired any right against the acquittal on the charge of conspiracy. So, even without exercise of inherent power, this Division can alter the conviction of the respondents to one of murder in pursuance of the criminal conspiracy. The appellant has taken ground Nos.II and IV in its concise statement for convicting the accused on the charge of conspiracy. In view of rule 13 of Order XXIII, rule 5 of Order XX of the Appellate Division's Rules are applicable to criminal appeals, and there is no legal bar to convict them even if no leave was granted on this point. This is a settled point and I need not make any observation on this question. In support of the charge, the prosecution has adduced evidence and the accused persons have defended the same. The trial court as well as the High Court Division discussed the evidence in support of this charge but disbelieved the charge on perfunctory grounds. Therefore, there is no legal bar to convict the respondents on the basis of the evidence on record.... (Surendra Kumar Sinha, J) (Minority view)......State =VS= Dafader Marfoth Ali Shah & ors, [4 LM (AD) 430]
Order XXVI, rule 1- Review- A Division Bench of the High Court Division hearing the criminal miscellaneous case by judgment and order dated 17.02.2009 made the Rule absolute and quashed the proceedings of Violation Miscellaneous Case No.234 of 2008 arising out of B.L.L. Case No.335 of 2008 pending before the First Labour Court, Dhaka. Against the judgment and order of the High Court Division, the petitioner filed Criminal Petition for Leave to Appeal No.233 of 2009 before this Division. This Division on hearing the leave petition by judgment and order dated 8th December, 2009 dismissed the leave petition, against which the instant review petition has been filed. In the review petition, the petitioner has failed to show that the view taken by this Division endorsing the view of the High Court Division was the result of an error apparent on the face of the record warranting review of the same as provided in Order XXVI, rule 1 of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988. It further appears that the grounds taken in the review petition were also taken in the leave petition but those not being relevant were not considered. The review petition accordingly, the same is dismissed. Nur-e-Alam =VS= Grameen Phone Limited, [4 LM (AD) 425]
Order XXVI rules 1-6- The procedures provided in Order XXVI rules 1-6 of the Appellate Division Rules, which are not inconsistent with the Act and the Rules, would guide the procedure and practice of the Appellate Division for disposal of a review petition, that is to say, a review in a criminal matter can be made on the ground of an error apparent on the face of the record. Kamaruzzaman Muhammad VS Chief Prosecutor, International Crimes Tribunal, Dhaka, [4 LM (AD) 392]
Rule XXVI-The Appellate Division can review its decision where an error is apparent on the face of the record or where manifest error or injustice is shown to have been caused by the earlier decision. Moudud Ahmed vs State, 68 DLR (AD) 118
Order XXVI, rule 1-Plea of reduction of the period of substantive sentence in proportion to the fine reduced by this Division for doing complete justice cannot be accepted as an error apparent on the face of the record. Shahidur Rahman Khadem vs State, 65 DLR (AD) 296
Order XXVI- Review- Where the error is so apparent and patent that review is necessary to avoid miscarriage of justice We reiterated that a review cannot be equated with an appeal. It does not confer a right in any way to a litigant. The Appellate Division unequivocally expressed that it is now well settled that a review of an earlier order is not permissible unless the Court is satisfied that material error, manifest on the face of the order, undermines it's soundness or results in miscarriage of justice. The Appellate Division observed that a review of judgment is a serious step and the Courts are reluctant to invoke their power except where a glaring omission or patent mistake or grave error have crept in earlier by judicial fallibility. Power of review is not an inherent power - it must be conferred by law either specifically or by necessary implication and that despite there being no provision in the Act or the Rules for review from the judgment of the Appellate Division on appeal, by fiction of law a review is maintainable from the judgment of the Appellate Division subject to the condition that where the error is SO apparent and patent that review is necessary to avoid miscarriage of justice. Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, [4 LM (AD) 392]
Order XXVI- Review Removing unauthorized constructions from the periphery of Lalbagh Fort- Learned counsel appearing for the respondents submits that the respondents are ready to vacate the houses if they are paid sufficient compensation. Learned Attorney General was present at the hearing of the matter. Learned Attorney General finds it difficult to refute the claim of the respondents. Upon consideration of the facts and circumstances of the matter, we assess Tk.40,00,000/- (forty lacs) as compensation to be paid to the owners who are found to be in possession of the houses. We direct the Archeology Department to pay Tk.40,00,000/- (forty lacs) to the owners jointly within three months from the date receipt of the order and the owners shall apportion the said amount according to the area they are in possession. We direct the Archeology Department to evict the respondents on payment of such compensation forthwith. ......Adv. Manzill Murshid -VS- Haji Md. Abdul Hashem, [4 LM (AD) 31]
Order XXVI- Review In a review
petition there is no scope for rehearing- Prayer for plaint amendment was regularly allowed or not, which it the High Court Division duly answered that we do not find this brings any change in the plaint- The finding of the High Court Division to the effect that "we do not find this brings any change in the plaint inasmuch as in the original plaint also. In the civil petition the only issue raised was as to whether the prayer for amendment was regularly allowed or not, which it appears the High Court Division duly answered. Further the grounds as raised by the learned counsel of the petitioner may be agitated at the time of hearing of the suit. In a review petition there is no scope for rehearing. The review petition is dismissed. .....S.K. Khalilur Rahman -VS- Mrs. Meherun Nesa, [4 LM (AD) 340]
Order XXVI- Review From the judgement sought to be reviewed that the points raised in the review petition were argued and dealt with by this Division. Hence we do not find any error apparent on the face of the record. We do not find any error in the judgement of this Division, and accordingly, we find no merit in the instant review petition, which is accordingly dismissed. Shah Alam(Md.) -VS- Water Development Division, Gomati [5 LM (AD) 195]
Order XXVI
Suit for declaration of title are seeking review of the judgment and order dated 23rd February, 2010 of this Division in Civil Petition No.632 of 2009. Most. Rahela Khatun vs. Abdul Majid Howlader (S.K. Sinha J) (Civil) 8 ADC 451
Order XXVI
The facts involved in the case, in short, are that Tara Moni Dey, Upendra Kumar Dey, Mohendra Kumar Dey and Maindra Kumar Dey were the original owners of the suit lands. Ru- pesh Ranjan Dey vs. Md. Abdur Razaque (Mohammad Fazlul Karim CJ) (Civil) 8 ADC 512
Order XXVI
The plaintiffs instituted Title Suit No. 152 of 1990 in the Court of learned Senior Assistant Judge, Brahmanbaria Sadar, Brahmanbaria praying for dec- laration of their title in the suit property described in the schedule to the plaint and also for recovery of khas posses- sion of the same. Plaintiff's case, in short, was that the suit land belonged to Chakla Rawshanabad Zamindary Estate and the plaintiff No.1 took settlement of the suit land in 1345 B.S. by a check from the previous landlord and had been possessing the same by con- structing his dwelling hut thereon and also by planting various trees and rear- ing fishes in the pond within the suit land. Subsequently the plaintiff No.1 handed over possession of the suit land to his son, the plaintiff No.2 and since then the plaintiff No.2 had been possessing the suit land. That in April 1986 the defendant No.5 issued a no- tice to the plaintiff No.2 treating him as unauthorized occupier of the suit land. That the plaintiff No.2 then produced his papers in support of his title in the suit land before the defendant No.5. Subsequently on 17.10.1990 the plaintiff No.2 was asked to make over possession of the suit land to the defendant No.5. The plaintiff thereafter, on enquiry, came to know that the suit land had been wrongly recorded as Government khas land and that the de- fendant No.3 was trying to establish a "guchchha gram" therein. That subse- quently the defendants forcibly evicted the plaintiffs from the suit land on 24.12.1990 and thus the plaintiffs were compelled to file the suit. Government of the Republic vs. Mahabbat Ali (Naz- mun Ara Sultana J) (Civil) 8 ADC 828
Order XXVI
By the judgment and order sought to be reviewed this Division ultimately dis- missed the appeal holding that Khepa Chand Bairagi being a shebait of the deity was not legally entitled to trans- fer the suit property to the defendant- petitioners by the alleged deed of gift and as such the said deed of gift is ille- gal and void ab initio. This Division, on making elaborate discussion, held also that there was no error in the con- current findings of the High Court Di- vision and the trial court. Narendra Chandra Das vs. Sree Sree Gopal Bi- graha (Nazmun Ara Sultana J) (Civil) 9 ADC 765
Order XXVII Rule 13- Contempt of Court The contemner-respondent has not denied having transferred the 29 flats after the order of status quo dated 14.03.2010 as alleged by the petitioners. So, it appears that the contemner-respondent has transferred as many as 29 flats constructed on the land in question in gross violation of the order of this Court dated 14.03.2010. By this act of violation of this court's order the contemner-respondent has committed contempt of court. The contemner- respondent has showed gross disrespect to this court-the highest court of the country by violating its order which- cannot be and should not be overlooked or taken leniently. The contemner-respondent is directed to surrender before the central jail, Dhaka immediately to serve out the sentence and the superintendent of central jail is directed to receive and keep the contemner-respondent Mahfuzul Huq in jail to serve out his sentence. The Registrar of this Court is directed to issue warrant of commitment and detention of the contemner-respondent in jail as per Order XXVII Rule 13 of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988. Faiz Ahmed -VS- Mahfuzul Huq. (5 LM (AD) 383]
