The Limitation Act, 1908 (Act No. IX of 1908); section 5 

The condonation of delay always depends upon the discretion of the Court concerned. If the Court is satisfied as to the reason and explanation of the delay, it can be condoned.........................(5) 

Reasons behind amendment of section 138 of the Negotiable Instruments Act

The appeal is a continuation of the suit/case and there is no dispute that in the society a class of borrowers or drawers in taking shelter of this principles of law deliberately used to drag the appeal for an indefinite period in order to hang the process of realization of loan money or unpaid cheque's money for an indefinite period in which the payee or the holder of the cheque not only suffers a lot also the process of realization of cheque amount or loan money falls into dark. Keeping the said view in mind the legislature in applying their wisdom made amendment in section 138 of the Negotiable Instruments Act providing to deposit not less than 50% of the dishonored cheque at the time of filing an appeal in the Court which awarded the sentence…………………………………………(17)

The pre-condition of depositing 50% of decrial amount at the time of preferring appeal was first introduced in Artha Rin Adalat Ain, 1990 which has also been challenged in various writ petitions unsuccessfully. The proposition of law is clear that if the appellant succeeds in the appeal he will get back his entire deposited amount and in that view of the matter, there is no merit in such argument that deposit of 50% cheque amount at the time of preferring appeal after losing the case is one kind of punishment or taken away the statutory right of the convict-petitioner to prefer appeal……………………(38)

The Negotiable Instruments Act, 1881 (Act No. XXVI of 1881); section 138

Negotiable Instruments Act is a special law. Section 138 of the Negotiable Instruments Act provided certain pre-condition for bringing prosecution against the drawer of the unpaid cheque. Under section 138(c) of the Act, 30 days' time is given for payment of the amount due under the cheque from the date of receipt of notice regarding dishonor of cheque issued by the payee. The payee has to wait for 30 days anticipating payment of the amount by the drawer. After the expiry of 30 days, if the drawer does not pay the amount, the cause of action starts 31st day onwards. The limitation to file a complaint as prescribed under section 142 (b) of the Act is one month. On trial, both the parties are entitled to adduce evidence both oral and documentary. The trial Judge in deciding the case under the Act has to consider first, whether the cheque in question was dishonored and whether after fulfilling the legal requirement of section 138 (b) and (c) of the Negotiable Instruments Act the case was filed or not. In that view of the matter, there is little chance of success in the appeal on the part of the drawer of the unpaid cheque, although, the appeal takes much more time for disposal. We have already noticed that the convict-appellant on various pretexts used to take adjournment in order to hang the process of realization of cheque amount. In order to meet such situation the legislature in applying their wisdom inserted section 138A providing the provision for depositing not less than 50% of the unpaid cheque amount as pre-condition in the case of an appeal………………………………………(26)

Violation of provisions of law and writ jurisdiction

Mere allegation of violation of provisions of law cannot give rise to any cause of action for filing a writ petition when there is forum for seeking remedy against the impugned order/judgment……………………………………(42) 

Words and phrases

Surplus public servant and চাকুরীচ্যুত কর্মচারী

The term "surplus public servant" as defined in the Surplus Public Servants Absorption Ordinance, 1985 (XXIV of 1985)and the expression চাকুরীচ্যুত কর্মচারী are not legally the same expression. A surplus employee does not necessarily loose his employment because of abolition of his post. He may get the benefit of absorption under the Ordinance 1985. On the other hand a চাকুরীচ্যুত কর্মচারী will not get the said benefit of absorption……………………(20)  

When the reason for causing delay is unsatisfactory and not covered by any hypothetication and the conduct of the filing lawyer is not reasonable and not covered by any norms of practice as the delay is absolutely inordinate, the appellant may sue the filing con­ducting lawyer for the loss but on such application which does not disclose the particulars even to the date of knowledge of the date of death of the deceased, for unexplained un­known reason according to the broad principle of law of limitation, the vested right accrued to the other side after prescribed period of limitation can­not be wiped out. On such type of application unusual long delay of 9 years 5 months 5 days can­not be condoned………………(4)  

Subsequent suit may be stayed only when the matter in issue of the previously instituted suit is directly and substantially the same, the parties are the same title and the court is competent to grant the relief so claimed. Unless the Court is satisfied with the above tests of law, no stay can be granted. If the earlier suit fails or in the alternative the plaintiff of the earlier suits unable to get a decree, the plaintiff of the subsequent suit will not get the relief due to the law of limitation. Since both the suits are not between the same parties, not in the same schedule, not with the same cause of action, not with the same prayer and not with the same issues. The relief claimed in subsequent suit cannot be determined and granted in previously instantiated suit………………………………(17)  

When specific provision is not available in the Act i.e. the Artho Rin Adalat Ain, 2003 enabling the Artho Rin Court to put the decree-holder into possession, the Court may exercise its such Jurisdiction as provided in rules 97 and 98 under Order XXI of the Code read with section 26 of the Act, and give necessary directions to execute its order……………………(20)  

The SA and RS records are not an evidence of title and a registered document will prevail upon the records of rights and will remain in enforce unless the same is cancelled by an appropriate civil Court.…………………(11)  

The Arms Act, 1878 (Act No. IX of 1878); ss. 19A and 19(f)

Mere knowledge of the accused that the arms or ammunition was lying at the spot pointed out by him, in the absence of any evidence or circumstances to show that he had exclusive pos­session over the spot or that none else has excess to it, cannot make him liable for conviction under Section 19A and 19(f) of the Arms Act ……………………………(35)  

An injured witness is not expected to name the wrong assailant so as to shield his real assailant. Even in a murder case witness can be partly believed and partly disbelieved. The rule that the evidence false in part, false in entirety is only a rule of caution and not a mandatory rule of evidence. In our country a witness has a tendency to exaggerate, embroider and also to implicate falsely some other person in addition to the real offender. But even then the Court is to scan the evidence carefully so as to come to a decision as to which part is acceptable and only in case of impossibility to separate the truth from falsehood, the Court will be justified in rejecting the evidence in toto………………………(9)