Code of Civil Procedure, 1980; order 47 or 1, 2 & 4

Review of Judgment by a Successor Judge

The right of review of a judgment is a substantive right and its scope, extent manner and forum are circumscribed by the statute which confer such right-Review on the ground of discovery of new and important matter or evidence as referred to in rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of decree is entertainable and disposable by the court which passed the decree or made the order by well as by the successor court-But if an application for review of judgment or an order is made on any other grounds, then that application shall he made only to the judge who passed the decree or made the order in term of rule 2-But if a judge who passed the decree or made the order has ordered notice to issue under Rule 4, Sub-Rule (2) proviso (a), the application for review may be disposed of by his successor 'Record' is a wider term than 'decree-Record includes judgment decree, pleading, evidence, exhibits, but decree means precisely that which is defined in section 2(2) of the C.P.C.-Error apparent on the face of the record is math wider than the words clerical or arithmetical mistake or error on the face of the decree- When an application for review is made to the judge-in-Charge and who upon such application by a successor judge is without jurisdiction…………(23-24)

Whether Martial Law Order No.40 of 1982 applies to development plan undertaken by Dhaka Municipal Corporation

Whether Development Plan Undertaken By Dhaka Municipal Corporation Can Be, Restrained By an Order of Injunction –

The use of the ward "against" twice first with regard to the Government and secondly with regard to any Corporation necessarily implies that the Government has been placed in one category and any other Corporation" has been placed in another distinct category-In Martial Law Order No. 40 of 1982 "any Corporation" is disjunctive from "other body or authority-Since any Corporation also includes a corporation established by or under any law martial law order So. 40 of 1982 applies to a development plan undertaken by Dhaka Municipal Corporation-Recording of satisfaction of the court issuing an order of status quo to the effect that the order would not have the effect of prejudicing or interfering with any measure designed to implement any development plan or programme or any development or public works or being otherwise harmful to the public interest is sine qua non to the exercise of power of granting temporary or ad-interim injunction-Omission on the part of the District judge to record such satisfaction as well as omission to record that recording of such satisfaction is not necessary is an error of law on the face of the judgment-Martial law order No. 40 of 1982……..(17)

The High Court Division of the Supreme Court Shall Have Such Jurisdiction as is or may be Conferred on it by Law -

Martial Law Order No. 40 of 1982 is an existing law on injunction and no Court can ignore it. But it must also be remembered that in Clause 4(1) of the schedule added at the end of the proclamation of the 24th March, 1982 by proclamation Order No. 1 of 1982, dated 11-4-82, it has been provided that the High Court Division of the Supreme Court shall have such jurisdiction as is or may be conferred on it by law. This schedule is as much a part of the Martial Law of the country as the Martial Law Order No. 40 of 1982……

Jurisdictions of the Courts subordinate to the High Court Division-

Section 3 of Civil Procedure Code confers jurisdiction on the High Court Division, also tells that District Court is subordinate to the High Court Division. If the High Court Division finds that the Court of Munsif could not execute the order of the District Judge owing to factors beyond its control it becomes an avoidable duty on the part of the High Court Division, exercising jurisdiction in accordance with law over the District Court to help it execute the orders of its higher Court.………(43) 

Constitution of Bangladesh, 1972; Article 102(2) (a) (ii)

Exercising Statutory Direction-

A statutory authority must address himself properly in law in the exercise of statutory discretion. He must direct his attention to matters which he is bound to consid­er. If he does not obey this rule, Certiorari and Mandamus shall surely lie to rectify his orders………………………. (20)

A violation of the elementary principles of natural justice-

'Inaction' of the respondents manifested in not giving the petitioner's government portion of monthly salary or MPO is found to be without legal authority. The same also reflects and arbitrary abdi­cation of duty by a public authority and in the facts and circumstance also involves a violation of the elementary principles of natural justice.

In the instant case, the petitioner is the only teacher in the post of Sociology in the Higher Secondary Level of the Alaipur (Degree) College. Therefore, he is legally entitled to have the gov­ernment portion of monthly salary or MPO.…………..(22 & 23) 

Under latest Propositions of Law, an Accused cannot remain on Anticipatory Bail for an Unlimited Period-

It is now well settled that after submission of the police report, there is no scope for anticipato­ry bail or pre-arrest bail. Anticipatory bail should be granted by the High Court Division for a limited period or till filing of the charge-sheet whichever is appro­priate in the circumstances of the case. After expiry of the period or filing of the charge-sheet, as the case may be, the accused must appear before the court concerned and obtain fresh bail from the Court on the merit of the case…………………(45)

Possibilities of Implication as an Abettor-

Though the name of the accused-peti­tioner has not been mentioned in the FIR, but his prima facie involvement has been disclosed in the charge-sheet submitted by the investigating officer duly empowered by the commission. On scrutiny of the charge-sheet, the specific allegation of abetment against the petitioner has been prima facie found. Non-mentioning of name of the petitioner in the 161-statements can­not exclude him from all possibilities of implication as an abettor of the offence because he is a benefici­ary of the alleged illegal transaction which was allegedly done in connivance with other accused named in the FIR and the charge-sheet. As the petitioner is a beneficiary of the alleged illegal transaction and he has an engagement in the alleged illegal transac­tion, a prima facie allegation of abetment regarding manipulation of the tender for sale of the abandoned properties has been disclosed against the accused-petitioner in the prosecution materials...........…..(25)

Whether the Impugned Proceedings should be Quashed-

It is a settled principle of law that the disputed ques­tion of fact cannot be determined by the Court invoking its extra-ordinary jurisdiction under sec­tion 561A of the Code of Criminal Procedure. Over and above, whether the allegations of abetment in manipulating the tender for sale of the case proper­ties are true or false can only be gone into during the trial of the case. Moreover, the admissibility, rele­vance, propriety or sufficiency of materials collect­ed by the prosecution are also matters for evidence and trial………….(33)

Allegations of Abetment in Manipulating the Tender for Sale of the Abandoned Properties-

The peti­tioner has an engagement in the alleged illegal trans­action for purchasing the case property in his favour or otherwise in favour of his organization from the principal accused. The aforesaid elements certainly attract the allegations of abetment in manipulating the tender for sale of the abandoned properties......Abetment is such an offence which may be inferred from the conducts of the accused and circumstances of the case. It may be proved either by oral and documentary evidence or by cir­cumstantial evidence. Under the circumstances, we have no hesitation in holding that there is no ingre­dients of quashing the impugned proceedings in the instant case as the prosecution materials indicate prima-facie offence of abetment against the accused-petitioner who prima-facie abetted the prin­cipal accused in manipulating the tender for sale of the abandoned properties…………………..(39)

Surrender before the Process of the Court-

The accused-petitioner remained in abscondence. In the absence of surrender before the process of the Court, the application filed under sec­tion 561A of the Code of Criminal Procedure by the accused-petitioner is incompetent and not maintain­able in the eye of law………………..(45) 

Arbitration Act, 2001; Section 7A and 21

Whether any Signatory of the Agreement is a Necessary or Proper Party in the Proceedings-

After appreciating the provisions of section 7A and 21 of the Arbitration Act, 2001, it is manifest that the application for addition of patty by the 2nd party to implead the 3rd party in the proceedings does not come within the ambit of law. Therefore, as to whether any signatory of the agreement is a necessary or proper party in the proceedings does not call for to decide at all.

It is the desire of the 3rd Party who is the signatory in the Agreement whether he will join in the proceeding or not. At the instance of the 2nd Party, the 3rd Party-signatory cannot be treated as necessary party. Although already on behalf of the respondent it has been stated that it is a compact project without his presence proper adjudication of the dispute will not be possible at all. In that case none of the parties restrained the 3rd Party to start the another arbitral proceeding or join the proceeding........(11) 

Code of Criminal Procedure, 1898; Section 164(3)

The appellant should not get any benefit from the acquittal of accused. In the instant case, the eye-witness versions of the P.W. 3 and P.W.11 and the said dying declaration of the deceased corroborated each other as to the participation and role played by the Appellants in the killing. Thus, since both the Appellants have dealt blows on the body of the deceased, it has been proved that they did it in fur­therance of their common intention to cause the death of the deceased or to cause such bodily injuries which are sufficient in the original course of nature to cause death making them punishable under sections 302/34 of the Penal Code……………… (30)

The confessional statement can not be treated as a valid piece of evidence either to convict its maker or to corroborate any other evidence as non-compliance of the vital pro­cedures vitiated the confessional statement. However, since other evidences, namely the eye­witness version of P.W. 3 and 11 corroborated by the dying declaration of the deceased as proved by P.Ws.1, 2, 4 & 5 under section 32 of the Evidence Act are sufficient enough, the conviction should sus­tain even without seeking any assistance from the said confessional statement of the Appellant…… (29) 

Re-admit of Appeal-

Whether the appellant was prevented by sufficient cause from appearing before the Court-

The question of considering the matter of re-admission of an appeal before a Court in deciding an application under Order XLI, rule 19 of the Code of Civil Procedure, depends on  

Whether the appellant was prevented by sufficient cause from appearing before the Court when the appeal was called on for hearing. The conduct of the appellant may be repre­hensible but the matter cannot be decided on the ground of mere apprehension for non-appearance.

Order XLI, rule 19 of the Code of Civil Procedure gives ample power to the appellate Court  to re-admit the appeal if the Court  is satisfied that the appellant was prevented by any sufficient cause from appearing before the Court  when that appeal was called on for hearing…..........(25) 

Whether Writ Petition is Maintain­able against the Private Bank-

The question is no longer a res Integra, it’s a settled issue. The writ petition is not maintainable against the Private Bank and Government has been inducted in the petition only to attract Article 102 of the Constitution as a method of cunning device. Section 12 of Ain, 2003 main­tains as a pre-contention to sale the mortgage prop­erty and realized the outstanding dues, if any, before filing a suit against a defaulter borrower………………(6) 

The Applicability of the Doctrine of Legitimate Expectation-

The Doctrine of Legitimate Expectation is only an aspect, which does not give rise to an enforceable right but only provides that the action taken by the authority while dealing with the citizens is not arbitrary. The applicability of the doctrine of legitimate expectation arises when an administrative body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfill unless some overriding public interest comes in the way.

Equity has always , True to Form, Stepped in to Mitigate the Rigours of Strict Law-

The doctrine of promissory estoppel has been variously called 'equitable estoppel', 'quasi estoppel' and 'new estoppel'. It is a principle evolved by equity to avoid injustice and through commonly named 'promissory estoppel', is neither in the realm of contract nor in the realm of estoppel. The basis of this doctrine is the interposition of equity. 

Applicability of the principle of 'locus penitentiae' under Section 21 of the General Clauses Act-

The authority competent to make an order has the power to undo the same; but the order cannot be withdrawn or rescinded once it has taken legal effect and certain rights are created in favour of any individual.

The power to add to, amend, vary or rescind available under Section 21 of the General Clauses Act does not include the authority to take away a validly acquired right.

It is well-settled that Fraud Vitiates Everything and by that reason, they should not be allowed to enjoy its Fruit -

In the instant case, it cannot be said that the petitioners had a validly acquired right rather by having recourse to fraud and forgery, they got themselves admitted to the university in collusion with some functionaries thereof. This being the position, they cannot capital­ize on their fraud and forgery.

It is true that the perpetration of fraud and forgery could not be detected at the initial stage and when the same were detected by the inquiry com­mittee, it was found that the petitioners had prose­cuted their studies for some years. But even then, as we see it, they cannot take advantage of their mis­deeds negativing the operation of the principles of estoppel and acquiescence…………………… (40-43)