The pre-emptors cannot succeed on such an application-several co-sharers in the holding were omitted in the pre-emption case and they were not brought on record in spite of objection taken by the pre-emptees--

The instant suit is not legally maintainable due to defect of parties as several co-sharers by inheritance have not been brought on record. The pre-emptors got sufficient opportunity to remove the defect by impleading the persons named in the written objection but they failed to remove the defect, and conse­quently, the application must be treated as not properly constituted.

Section 96, sub-section (2) requires that all the co-sharer tenants of the holding are to be impleaded in the application falling under the first part of sub-section (1), Similarly, all the contiguous land owners are to be made parties in the application falling under the second part of sub-section (1). Sub-section (4) provides the period of limitation for the remaining co-sharer tenants or the tenants holding land contiguous to the land transferred, to join in the pre-emption proceedings. This period of two months begins to run from the service of notice of the applica­tion for pre-emption.

Section 96 clearly point out that a duty has been cast upon that pre-emptor, if he is a co-sharer tenant, to make all the remaining co-sharer ten­ants; and if he is a tenant holding land contigu­ous to the land transferred, all the remaining tenants holding lands contiguous to the land transferred and the transferee, parties to the application. Object of sub-section (2) is to have all the co-sharer tenants or all the tenants hold­ing lands contiguous to the land transferred, before the Court for proper and complete adju­dication in accordance with law.

A co-sharer tenent or tenant holding land contiguous to the land transferred may waive his right to purchase the land, but on this consideration there is hard­ly any scope for taking the view that the require­ment of sub-section (2) is not mandatory but is merely directory. Second part of sub-section (4) clearly indicates that a co-sharer tenant or a ten­ant having land contiguous to the land trans­ferred, failing to join in the pre-emption pro­ceeding within the given time, shall not have any further right to purchase under this section…….(25, 16 & 19) 

Power of attorney is not a document which requires to be compulsorily registered under the law

If such power of attorney empowers a per­son to execute a deed of sale or any kind of transfer or sale of immovable property that power of attorney requires registration under the law.  This is not legally tenable as a power of attorney executed in terms of Registration Act or under other provisions of law which confers s valid power on the attorney to act as an agent for the principal does not require registration except that its authentica­tion under the law is necessary …………… (5)

Whether Power of attorney executed and authen­ticated by a Magistrate or Notary Public in a foreign country could be acted upon as a valid document in Bangladesh

If a notarial act is done in foreign country by a foreign notary and there is reciprocal arrange­ment between Bangladesh and that foreign coun­try, then by reference to s. 14 of Notaries Ordinance and s.33 of the Registration Act, those notarial acts will be valid and the power of attor­ney admissible in Bangladesh.  

If there is no reciprocal arrangement the question is whether by reference to s.14 of the Notaries Ordinance, 1961 it could be said that foreign notarial acts will not be recog­nised as a valid act or document. A reading of s.14 does not indicate any such prohibition or exclusion. Notarial act in foreign country having no reciprocal arrangement can be accepted into evidence if there is evidence to show that the person before whom the notarial act was done was a notary public and that the State in which the notarial act was done authorised him by law to do the notarial acts. If a notarial act takes place in a foreign country, the person asking the Court to accept the notarial acts done in a foreign country can do so by showing that the law of that country authorised notarial acts to be done by Notaries as they are so done in Bangladesh and by proving the authentication made by the Notary Public.   .........( 13, 14 & 16)

No lack of power of the Government to make the promise—Government bound by the promise.

Government took the decision on agreement to release the Mill in question. Lack of power on the part of the Government so to do is not the plea; rather a belated plea was taken that the decision had been revised by the Government although no such case was made out. Hence applying the prin­ciple of promissory estoppel the least that can be said is that the appellants cannot be allowed to act inconsistently and the decision to release the Mill remains binding on them……………..(9)

Maxim-Nullus Commodum Capere Potest De Injuria Sua Propria—No man can take advantage of his own wrong.

The learned Attorney General argued that no deed of transfer having been executed, no right was conferred on the former owners for claiming restoration does not hold good because the well settled principle is no body is entitled to take benefit of his own wrong. The decision on agreement has been taken that this Mill is to be released to its former Bangladeshi owners. No such decision had been revised, nor the Attorney General could locate any such power for revision in the statute. To claim that since no document has been executed the claimant has no right is nothing but taking advantage of one's own wrong. This it not permissible……..(10)

The appellants are under a "legal obligation" towards the respondents "to carry out specific ministerial duties" clearly imposed upon them by law, namely, "to complete the formalities to trans­fer the mill"; the High Court Division is empow­ered under the Constitution for giving a direction "to do that which is required by law to do" 

Small Causes Courts Act (IX of 1887), Section 17(1) Proviso

Deposit of decretal amount or furnishing of security with the appli­cation, not mandatory—Application to set aside the decree along with another application seek­ing Court's direction may be filed within the period of limitation—Court may pass order beyond the period of limitation giving direc­tion—Compliance with the Court's direction within the time fixed by Court—Application to set aside the decree maintainable.

Applicant for setting aside ex parte S.C.C. decree may deposit the decretal amount or furnish the requisite security bond along with the applica­tion or seek Court's permission by filing a sepa­rate application for necessary direction and com­ply with the direction. If the application for seek­ing Court's direction is filed along with the appli­cation for setting aside the ex parte decree and the Court passes necessary orders on the application directing the applicant either to deposit the decre­tal money or furnish security bond, and the appli­cant complies with the direction within the time given by the Court, this will be sufficient compli­ance of the requirement of the Proviso.

The application for set­ting aside the ex parte decree must be filed within the period of limitation on complying with the requirements thereof or obtain a direction from the Court by filing a separate application for com­pliance of the requirement. It would be absolute­ly unreasonable to say that Court's power to give direction is circumscribed by the period of limita­tion, that is to say, the Courts power to extend time must be exercised within the period of limi­tation and the Court becomes powerless after the period of limitation………..(12) 

Whether the right of pre-emption a is a heritable right

After filing pre-emption, either claiming to be a co-sharer in the holding or claiming to be an owner of contiguous land, if the pre-emptor ceas­es to have interest in the land in question the pre­emption case fails. On the death of the pre-emp­tor this right is not lost, because, the pre-emptor's heirs or their heirs inherit the right along with the land. In a pending proceeding the heirs are enti­tled to be substituted in the place of the deceased pre-emptor and proceed with the case. So also the right of pre-emption once accrued, the right of pre-emption does not lapse in the event of death, but it devolves upon his legal heirs…………(5)

Waiver of the right

When a co-sharer is non-notified and the pre-emptee could not establish by leading evidence that he had (non notified co sharer) knowledge about the transfer, there is no scope for raising the question of waiver of the right……(8) 

Administrative law—Discretionary power— Authority must exercise the power reasonably— Arbitrary exercise of the power without proper application of mind cannot be sustained….. (6) 

Non-compliance of the positive requirements of law in the matter of service of summons legally amounts to non-service of summons.

Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.

This is certainly a mandatory requirement of law and if it is not complied with then there can not be a legal service of summons.

Therefore, service being a vital importance, the Court before declaring the service to be sufficient must be satisfied that all the requirements of the law have been strictly complied with.

This is all the more necessary in a case where the service is not personal and also when the service is on a Pardanshin woman.

An ex parte decree passed without service of summons is a nullity and on that ground it is liable to be set aside……………………….. (9, 11 & 13) 

Specific Relief Act (1 of 1877), Section 54.

Obtaining Permanent Injunction-Exclusive Possession and a Prima Facie title is required

Possession for more than 12 years can be protected by permanent injunction even against rightful owner. A person in long possession can be evicted only in due process of law. including the rightful owner.

The plaintiffs and their predecessor have been in exclusive possession of the suit land for over 12 years adversely to the defendants and their predecessor. Plaintiff’s title in 4.24 lands out of the suit land on the basis of registered kabala ext.2 is undisputed and has also been proved. Plaintiffs claim of right on the remaining 4.10 lands though on the basis of an invalid document namely an unregistered deed or exchange has also been prima facie proved by adverse possession as have been held by the Munsif while the same possession has been clearly found by both the courts below. A person in long possession can be evicted only in due process of law. Even the rightful owner cannot evict him with force. If he cannot be evicted with force he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatened his possession he can pray for an equitable relief of in junction to protect his possession, and the remedy of the rightful owner lies in bringing appropriate suit for establishing his right and for recovery of possession…............(8) 

Withdrawal of criminal Case

President's Order No. 16 of 1973 Art. 2.

Under Article 2 of P.O. 16/73, there is nothing to show that the offence in question was committed by the accused in connection with the struggle for national liberation. The mere fact that the Government have stated that the accused are freedom fighters does not ipso facto give any indemnity for committing any offence against innocent citizens. P.O. 16/73 has no manner of application in the facts and circumstances of the present case. 

Whether appeal lies against a conditional order of Attachment before judgment-

Conditional orders of attachment-before Judgment are not appellable-Code of Civil Procedure (V of 1908) Or. 38 rs. 5 and 6. 

Code of Criminal Procedure (V of 1898); Section 339B

Trial absentia & Question of its legality

Since neither the Upazila Magistrate nor the Ex-officio Sessions Judge asked the accused to appear before the trial court on any particular date nor directed the sureties to produce him he cannot be said to have absconded or failed to appear before the Court.

since neither the Upazilla Magistrate nor the Ex-Officio Sessions Judge asked the accused to appear before the trial court on any particular date including 23-1-S3 and subsequent dates nor directed the sureties to produce the accused on any such date, there was no compliance with the provisions of sub-section 2 of section 339B of the Code of Criminal Procedure and also since the accused neither can be said to have absconded nor can be said to have failed to appear before the trial court on any date fixed by the said court within their knowledge…........(8) 

Whether dismissal of a suit amounts as a rejection of the plaint- the order of dismissal under section 8B (3) Court Fees Act is not a decree and as such no appeal lies from that order.

Dismissal under section 8B (3) of the Court Fees Act cannot be a rejection of the plaint but is a dismissal of the suit. Rejection of the plaint is provided for in section 6(2) of the Court Fees Act and that is at a time before the service of summons. There is a clear distinction between the wording used in the two sections 6(2) and 8B(3) Court Fees Act and as such dismissal of a suit for nonpayment of Court fees cannot be equated with the rejection of the plaint and one cannot be, read to be the same as the other.

An order passed under section 8B of the Court fees Act cannot be included into the category of a decree because of the fact that there was no adjudication and extermination of the rights of the parties and the same has not been expressly included in the category of decree as in the case of the rejection of the plaint

But merely because decree has been drawn up the plaintiff will have no right to appeal. Right to appeal is a creation of statute. In order to have a right to appeal the plaintiff must show that the order was covered by section 2(2) C.P.C. and that the order fell within the category of a decree, having ad judicated and determined the rights of the parties. But order under section 8B (3) Court Fees Act did not adjudicate and determine any right between the parties…. (7 & 9)