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In
ascertaining the Period of Time the General Expression is to be Ignored
when the Beginning and the End of the Questioned Period of Time is
clearly Specified and Dated—
The relevant portion of the agreement of reconveyance runs as follows:
“আপনার সহিত আমার এই চুক্তি রহিল যে আপনি বর্তমান ১৩৭০ সনের ১লা আশ্বিন হইতে লাগায়ৎ ১৩৭৪ সালের ৩০শে কার্তিক মাস পর্যন্ত চারি বৎসর ম্যায়াদের মধ্যে যে কোন সময় আমার দেওয়ার উক্ত বর্ণিত সম্যক টাকা আমাকে ফিরাইয়া দিলে আমি আপনাকে ফেরৎ কবলা দলিল রেজিষ্ট্রি করিয়া দিব”।.........(4)
In the instant case the general expression with regard to the time for payment of consideration for the reconveyance, within 4 (four) years, 'appears to be in conflict with the clearly spelt out period of time i.e. between the 1st Aswin 1370 B.S. to 30th Kartick 1374 B.S. ……………………(8)
Nabir Md. @ Nabiruddin Vs. The State, 1981, 10 CLC (HCD)
Power of the Appellate Court--Meaning of the Word "Finding"—
Section 423(1)(b) of the Penal Code provides that in an appeal from a conviction the appellate court "may alter the finding"
"Finding"
means the result of a judicial examination, specially into some matter
of fact. The expression "may alter the finding'' clearly empowers the
appellate court to consider the entire evidence against the accused
appellant both as regards fact and law and to substitute its own
finding…….........(8)
Aftabuddin Miah Vs. Kudrat Ali Miah & ors, 1981, 10 CLC (HCD)
Managing Partner, Messrs, Bank Line Na¬vigation Company Vs. Chairman, Second La-bour Court, Dacca and other, 1981, 10 CLC (HCD)
Employment of Labour (Standing Orders) Act (VIII of 1965), Section 17(3) (h)
Whether single act of neglect would constitute misconduct—
If the omission and negligence of the employee is of serious nature then a single act of neglect of work would constitute misconduct.
In the instant case the aforesaid single act of neglect in plying the vessel during the night and in a foggy condition of weather amounted to a misconduct under clause (h) of sub-section (3) of section 17 of the Employment of Labour (Standing Orders) Act………(6)
Surendra Mohan Shaha Vs. Government of Bangla¬desh and others, 1982, 11 CLC (HCD)
Momtazuddin Ahmed Vs. Abdur Rashid Khan, Sub-divisional Magis¬trate, Sherpur & ors, 1982, 11 CLC (HCD)
Hasina Begum & others Vs. Haji Md. Ekramullah & others, 1981, 10 CLC (HCD)
Whether by a Conditional Sale a Mortgage Does Automatically Mature Into a Sale—
Section 67 of the Transfer of Property Act confers upon the mortgagee, any time after the mortgagee, money has become due to him and before a decree has been made for redemption of mortgaged property, a right to obtain from the Court a decree that the mortgagor shall be absolutely debarred of his right to redeem the property, or a decree that the property be sold.
In the present case the mortgage was never foreclosed and the plaintiff's right to redemption not debarred. So far as the right to redeem is concerned, a mortgage by a, conditional sale like other mortgages will be governed by provisions of the Transfer of Property Act…….. (14)
It is clear that the redemption of the mortgage when the plaintiff demanded recovery of possession of the mortgaged property, defendant No. 1, who was on the basis of transaction not found to be a bonafide one, could no longer resist him….. (15)
Salehuddin Khan Vs. Bangladesh and others, 1982, 11 CLC (HCD)
Suspension of Government servant –
Rule II of Government Servants (Discipline and Appeal) Rules, 1976 under which the petitioner has been suspended also provided that instead of placing the petitioner under suspension the authority may require him to proceed on leave--The Secretary's note to the authorities contained the only proposal that the petitioner be suspended--When two options are open the authority should consider both--There should be something on record to show that the authority duly applied its mind and exercised its descretion in favour of one of the two alternatives--The papers on record no where indicate that the authorities applied their mind to the alternative proviso in Rule II before the impugned order was passed.
Delegation of power-
Whenever
there is a question of delegation of power it must be done in specific
and categorical terms--It is not permissible to read such power by
necessary implication when rights of others are involved--There being no
delegation of power to the Vice-President the impugned order passed
with his approval cannot be sustained in law.
M/S Subarna Trading Co. Ltd Vs. M/S Overseas Traders, 1981, 10 CLC (HCD)
Gopal Chandra Mondol Vs. Lashmat Dasi, 1982, 11 CLC (HCD)
Bashir Ahmed Vs. Abdul Shaheed, 1982, 11 CLC (HCD)
Appointment of Receiver—
Appointment of Receiver is one of the harshest remedies allowable under the Civil Procedure Code and Court has to discharge this exceedingly delicate and responsible duty with utmost caution.
Though service of notice on the other side before appointing a Receiver is not a legal requirement it would be expedient to issue such notice on the opposite side, before appointing a Receiver, except in emergent cases and in cases where the very object of appointing a Receiver may be defeated by issue of such notice.
A Receiver may be appointed without notice to the opposite side. The desirability of issuing any such notice is however a matter which should be left to the discretion of the Court concerned.
While
appointing a Receiver under Order 40, rule 1, C.P.C. the Court does not
arrive at any final decision on the merits of the case, but its object
is only to preserve the status quo ante during the
litigation………..................(7 & 8)
Abdul Quader Molla Vs. The Chairman, Bakerganj Zilla Parishad and another, 1982, 11 CLC (HCD)
Submitting
an Inquiry Report in time is Directory and Not Mandatory—Nothing has
been shown that the failure of the Enquiry Officer to submit the report
within 10 days has caused prejudice to the delinquents—
The
delay in filing the enquiry report by the Inquiry Officer has not
vitiated the proceeding or the report submitted by the Inquiry Officer.
Whether a law enjoining an authority to do a certain thing is mandatory
or not could be decided upon the consequence that would follow in the
event of not doing the thing by the authority.
The petitioners were not Government employees under Rule 5(53) of the Bangladesh Service Rules and their pay were not paid out of the State Treasury—
Under the statutory rules the Chairman of the Local Parishad was the appointing authority and an employee of the council —In the absence of any statutory rule and regulation relating to power of appointment and dismissal of the Zilla Board employees engaged in projects of works programme the dismissal of the petitioners from their services by the Chairman of Zilla Board cannot be said to have been made illegally and without lawful authority. The Local Council Servants (Efficiency and Discipline) Rules, 1968 is applicable in the case of the officers and staffs of Zilla Parishad.
In
the absence of any other rule modifying the provisions relating to
appointment and dismissal in Local Council Servants (Efficiency and
Discipline) Rules, 1968 the order of dismissal passed by the Chairman of
the Zilla Parishad cannot be said to have suffered from illegality………(5
& 7)
Ragib Ali Vs. Bangladesh and ors, 1982, 11 CLC (HCD)
Fundamental Right to Protection of Law –
Illegal dispossession by Government Officers—
Government sold a property to the petitioner and thereafter dispossessed the petitioner from that peoperty--To enjoy protection of law and to be treated with law is the inalienable right guaranteed to every citizen under the Constitution of Bangladesh (1972), Art. 31
As a citizen of the country the petitioner was entitled to due protection of law. When he could legitimately expect due protection from the Government for maintaining his rightful possession, he was instead illegally dispossessed by the Government officers themselves. This is an unheard of case where the Government instead of protecting the lawful rights and possession of the petitioner threw him out of possession of his legally acquired property.
It was, to say the least, an act of extreme high handedness on the part of responsible official bordering on vandalism.
Government officials would do well to remember that to enjoy the protection of law and to be treated only in accordance with law is the inalienable right guaranteed to every citizen under the Constitution, otherwise the confidence and trust of the people in the Government machinery may be seriously undermined.
Kiron Chandra Das Vs. Sirajul Hoque Patwari, 1981, 10 CLC (HCD)
Burden of Proof—Presumption of Good Faith in Human Transaction as a Presumption of Innocence in Criminal Matters—
The burden of proving every species of bad faith such as fraud, collusion, misrepresentation, impersonation, undue influence, absence of consideration rests on the person who asserts the same and only after that burden was discharged prima facie the burden would shift on the other party to prove that it was not so.
A plaintiff without proving his case prima facie would not as of right, get a decree in his favor merely because the contesting defendants were absent on the date of hearing ……..........(5)
Shahin Reza (Md.) Vs. Nasiruddin Howlader and others, 2014, 43 CLC (AD)
Limitation Act (IX of 1908); Article 120
Suit Field for Declaration of Title—
Plaintiff is not bound to institute a suit for declaration that the records of right of the suit land are wrong. When an invasion on the rights of a person is made on the basis of the wrong records of right he can file a suit for declaration of title and that suit, if brought within 6 years from the date of such invasion, is well within time. The argument that this suit being filed within 6 years from the date of alleged threatened invasion on plaintiff's right on the basis of wrong entry of the suit land in records of right is well within time is not acceptable at all.
Salauddin Qader Chowdhury Vs. Chief Prosecutor, International Crimes Tribunal, Dhaka, Bangladesh, 2015, 44 CLC (AD)
International Crimes Tribunal Rules of Procedure, 2010; Rule 53(ii)
International Crimes (Tribunals) Act (xix of 1973)
Section 9(5)
International Crimes Tribunal Rules of Procedure, 2010
Rules 44 and 51(2)
Notaries Ordinance (xix of 1961) Section 14
International Crimes (Tribunals) Act (xix of 1973); Section 3
International Crimes Tribunal Rules of Procedure, 2010; Rule 56
Bangladesh Agricultural Development Corpora¬tion and others Vs. Md. Abdur Rashld and others, 2014, 43 CLC (AD)
Constitution of Bangladesh, 1972; Article 102(2)
Whether employees who opted for voluntary retirement pursuant to or in response of a special scheme floated by the Bangladesh Agricultural Development Corporation (BADC) would be precluded from re-instatement in their services after acceptance of their prayers for voluntary retirement and payment of retirement benefits—
Voluntary Retirement
“তবে, একবার অবসর গ্রহনের ইচ্ছা প্রকাশ করলে তা পরে প্রত্যাহার করা যাবে না”, which indicates as absolute terms and since that there is no provision quoted clause to withdraw prayers prayers of voluntary retirements came in effect after acceptance of the prayers. The moment prayers are accepted the retirement become effective………(20)
The Process on a Policy Decision Involving Complex Economic Factors— Voluntary Retirement —
"Termination" and "voluntary retirement from the service" have different connotations and cannot be equated for the reasons that the termination can be termed as "naked hire and fire" rule and paralled of which was to be found only in the "Henry VIII clause". Voluntary retirement scheme is a method used to reduce surplus staffs. Participation in the voluntary retirement plan is voluntary. It has to result in an overall reduction in the existing strength of employees..........(21)
It is the administrators and legislators who are entitled to frame polices and take such administrative decisions as they think necessary in the public interest. The court would be slow from interfering with the economic decisions as it has been recognized that the economic expediencies lack adjudicative decision and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits.
The court should not ordinarily interfere with policy decisions, unless clearly illegal…......(22)
Government of Bangladesh and oth¬ers Vs. Ashraf Ali, 2015, 44 CLC (AD)
In
spite of repeal of sections 93A and 93B of the Act the pending
acquisition of disputed land shall be continued under the provision as
if those have not been repealed.
The
Town Improvement Act, 1953 was amended by Act No.XXIX of 1987. Though
secions 93 A and 93B of the Town Improvement Act were repealed by Act
No. XXIX of 1987, the said provisions of the Town Improvement Act shall
continue in view of clause-(Uma) of section 73 of the Act No. XXIX of
1987. Clause-(Uma of section 73 of Act No. 29 of 1987 is quoted below:
“(ঙ)
এইরুপ প্রবর্তনের অব্যবহিত পূর্বে উক্ত Act এর অধীনে নিষ্পন্নাধীন যে কোন
হুকুম এবং অধিগ্রহনের কার্যধারা এইরুপে অব্যাহত থাকিবে যেন এই আইন প্রনীত
হয় নাই এবং তদাধীনে নিষ্পন্ন হইবে”।........ (17)
Immam Hossain Sawdagor and others Vs. Abul Hashem and others, 2015, 44 CLC (AD)
Code of Civil Procedure (V of 1908); Order IX, rule 6(1) (a) and 11
Whether a Defendant absent in the Suit in spite of Summons upon him and did not file any written statement, can contest an Appeal—
In the Code there is no provision that a defendant, who did not appear in the suit inspite of service of summons upon him and did not file any written statement, cannot contest an appeal filed against the decree passed in a suit on the evidence on record. Even a third party can file an appeal in case he is affected by a decree passed in a suit.......(10 & 11)
Code of Civil Procedure (V of 1908) Order XLI, rule 23 read with Order XLI, rule 31
As the last Court of fact, the High Court Division shall see whether the trial Court was rrect in dismissing the suit, instead of sending the suit on remand to the trial Court on a point which was never urged by any of the parties in the appeal......(14)
The plaintiff cannot get a walk over and he has to prove his own case even if a suit is heard ex parte.................(14)
State Vs. Secretary, Ministry of Public Administration and others, 2014, 43 CLC (AD)
Whether Investigation into a case by two Investigation Agencies can be done at a time or simultaneously—
If investigation into a case by the two investigation agencies is allowed to continue obviously, there will be two separate police reports, then there may be chance of conflicting reports and there may be also chance of recording of contradicting statements of the witnesses examined by the two investigation agencies during the investigation of the case and in the long run, that would cause serious prejudice to the fair trial of the case.... (8 & 9)
Further Investigation
Sub-sections (2) and (3B) of section 173 have clearly spelt out about the further investigation and further investigation presupposes a prior police report and that must be by one investigation agency at a time and not by two investigation agencies......(10)
Inquiry and Investigation—
To investigate into a cognizable offence, no order of a Magistrate is necessary. Investigation is totally a different concept from that of inquiry.
Inquiry is always to be made by a Magistrate or any person as may be directed by the Court, whereas, the investigation has to be made by a Police Officer or by a person (other than a Magistrate) who is authorized by Magistrate in this behalf......(12)
Inquiry and the investigation as envisaged in regulations 612(b) 1(i) (vi), 612(b) 11(i) and 612(b) 111 can, in no way, be related to a case which is being investigated into by an investigation agency. The regulations of the PRB cannot override the provisions of the Code....... (14)
The Attorney-General should have the right of audience in all Courts of Bangladesh….... (18)