Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to sub-rule (2) he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim………………..……. (6)

Section 10 code of civil procedure

There is absolutely no legal bar in instituting as many suits as the plaintiff can on the same cause of action in as many different forums as he chooses. The remedy of the common defendant in the multifarious suits will be governed by section 10 of the code of civil procedure. The language of section 10 is a clear indication that successive suits on this same cause of action is different forums is permissible in law………………… (9)

Unless a suit is filed under the condition described in Order XXIII rule 1(3) C.P.C. The bar of suit can not be attracted. A plaintiff must be seen after actual withdrawal of first suit without obtaining permission to sue afresh. If he is not caught in this position then the bar of order 23 rule 1(3) C.P.C. is not attracted.

Order XXIII rule 1(3) C.P.C. does not bar a suit already instituted before the other suit has been abandoned or dismissed. The bar of order XXIII rule 1(3) applies only to a suit instituted withdrawl or abandonment of previous suit…………………………. (12)

Order XXIII rule refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn. Order XXIII rule can not be read so as to bar a suit which has already been instituted before the other suit has been abandoned or dismissed. The rule is clear and can only be applied to suits instituted after the withdrawal or abandonment of previous suits.

Mangi Lal and another V.Radha Mohan and another, AIR 1930 (Lah) 599.

Haji Ashfaq Ahmed Khan and others VS Custodian of Evacuee Property Pakistan, PLD 1966

(Kar) 597 relied……………………(13)

Order XXIII rule 1(3) is a provision barring a plaintiff from instituting further suit and its provisions can not be given a retrospective effect when in clear terms that sub-rule speaks of a future suit………….…(14)  

A person shall be disqualified for election as for being a chairman of Upazila Parishad, if he is a party to a contract for work to be done for, or goods to be supplied to the Parishad concerned or has otherwise any pecuniary interest in its affair, or is a dealer in essential commodities appointed by the Government. 

Order 34, rule 2 (CPC) does not deal with the rate of interest that the Court should award at the time of passing the preliminary decree. Order 34, rule (2)(1) (a) (i) merely indicates the heads in respect of which account has to be taken, but with regard to the question of rate of interest Order 34,rule 11 is a self contained rule which deals with payment of interest in a mortgage suit under a circumstance. Order 34, rule 11 leaves it to the discretion of the Court what interest should be awarded to the mortgagee in a mortgage suit from the date of the suit till the date fixed for redemption. The Court is not bound to award contractual rate of interest for such period…………………......... (7)

It is not laid down that the plaintiffs are entitled to interest on decretal amount as a matter of right or that the payment of interest on decretal amount is compulsory…...... (8)

The awarding of interest on the decretal amount either from the date of institution of the suit till the date of the decree or from the date of the decree till realisation is purely a matter of discretion of the Court.....................(9) 

Upazila Parishad (Election of Chairman) Rules, 1983; Rule 38(3)

In case of any grievance the petitioner shall raise objection before the Presiding Officer or pray for recounting the ballots. In this case the petitioner filed an application before the Chief Election Commission for recounting and the Chief Election Commissioner illegally and arbitrarily passed an ex parte order for recounting without any enquiry without giving Respondent No.10 an opportunity to be heard violating the principles of natural justice.

Neither the Election Commission nor the High Court can decide the disputed question of fact and election Tribunal is the only forum to ventilate any such grievance. ....................... (3)

The Election Commission has been vested with the power to organise, hold and conduct the election of Chairman in accordance with the law and the rules. When a dispute arises as to fairly holding and conducting election or when due to circumstances its order of recounting is frustrated the Election Commission has got plenary power inherent in it under Article 119 of the Constitution and section 19 of the said Ordinance to order repolling in the disputed centres. The Chief Election Commissioner enjoys the power to order repolling in the disputed polling centres. Even after the deletion of Rule 68 he has jurisdiction to decide a disputed question of fact raised by a candidate and this court in the exercise of its writ jurisdiction should assume the allegation of the petitioner as correct, reject the objection of Respondent No.10 and direct the Election Commission to order repoll in those centres after canceling the Gazette Notification in question.........(5)

It is mandatory for the Election Commission to publish the name of the person declared elected as Chairman by the Returning Officer in the Official Gazette and has no arbitrary power to entertain belated private complaint after the whole election was over to the satisfaction of the Presiding Officers and the Returning Officer and can not cancel the declaration sent by the Returning Officer and can not order repoll on such private complaint…………………………(6)

 Election Commission has plenary and inherent power to direct recounting as well as repolling even if the Presiding Officer and Returning Officer were satisfied about fairness of polling and even if no candidate and his election agent raised any objection at the time of polling or counting of votes and in view of the order of the Election Commission passed on 27.03.90 for recounting when the Commission thought that its exparte order of recounting was frustrated due to subsequent tamperings with the bags of ballots and election materials, it ought to have ordered repoll not only in 4 centres but in all the centres as result of recounting in 83 centres was not sent by returning Officer to the Election Commission.............(7)

When an administrative authority decides a matter brought before it, such authority has to act fairly and justly and if any person is likely to be affected by such order or decision of such administrative authority the person to be affected is to be given an opportunity of being heard and there must be materials before such authority and the authority must apply its mind to such materials before passing the order. Otherwise the order will be without jurisdiction and void............. (9)

There is no rule authorizing any other functionary then the Presiding Officer to recount the votes. If any of the contesting candidates is unable to take the opportunity for recounting before the Presiding Officer he is to wait till publication of the result and constitution of the Election Tribunal and to file on election dispute case before the tribunal and if he can satisfy the Tribunal by cogent evidence then the Tribunal may order for recreating the ballots and in an appropriate case also direct repoll. Neither the Returning Officer nor the Election Commission has got any power to recount ballots after opening the election materials kept in sealed gunny bags. The Chief Election Commission has no power to direct recounting of ballots by the Returning Officer ..........(10)

The Appellate Division in the case of AFM Shah Alam VS Mujibul Huq and others hold that the commission has power to pass any order it likes in case of Election Parishad Election to see that it is conducted justly, honestly and fairly interpreting rule 70 of the Union Parishad (Election) Rules, 1983 which is in the same language with the deleted rule 68 of the Upazila Parishad (Election of Chairman) Rules 1983 and in that case the point whether Election Commission has such inherent and plenary power was raised but was not answered.

AFM Shah Alam VS Mujibul Huq and others 41 DLR (AD) 68 = 1989 BLD (AD) 78 referred. AD

The order of Election Commission accepting the election result given by the Returning Officer on the basis of the result given by the Presiding Officer can not be challanged by a writ petition and the same may be challenged before the Election Tribunal by the affected party.................. (10)

After the publication of the result in the Official Gazette the elected Chairman acquires a vested right and the Election Commission can not cancel the Gazette notification and order repoll and remedy of any aggrieved candidate is to go to the Election Tribunal for redress of his grievance if any. The said decision of the High Court Division was uphold by the Appellate Division.

Nazir Ahmed Vs. Bangladesh Election commission 41 DLR (AD) 87 = 1989 BLD (AD) 103 .............(10)