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The Code of Civil Procedure, 1908 (V of 1908), Section 107(1) (b)
Credibility,
trustworthiness, etc, of witnesses are matters pertaining to the domain
of appreciation of evidence, a special preserve of the Trial Court and
the first Appellate Court and once the option has been exercised by the
Courts below by accepting the evidence of certain witnesses apparently
upon satisfaction of their credibility, etc, the revisional Court cannot
direct re‑hearing of the same evidence upon re‑opening of the issue of
their credibility, etc. It is not within the jurisdiction of the
Revisional Court to reject the appreciation of evidence by the Trial
Court and the First Appellate Court.
The High Court Division ought to have considered whether issues of fact contained therein were specifically raised in the Trial Court and in the first Appellate Court - If not so raised, the revisional Court was not obliged to entertain issues of fact for the first time in revision. As for issues of law and mixed question of fact and law the revisional Court itself was competent on the basis of the evidence on record to come to a decision of its own without sending the suit back on remand to the Trial Court for a fresh decision on the evidence on record and without any direction to like additional evidence.
Shambhu Nath Poddar Vs. Bangladesh Railway and others, 1990, 19 CLC (AD)
The
revisional court acted beyond it's jurisdiction in setting aside the
concurrent finding of fact, when there is no misreading and
misappreciation of the evidence on record.
The State Vs. Ashraf Ali alias Ashraf & another, 1990, 19 CLC (AD)
The Code of Criminal Procedure, 1898 (V of 1898), Section 417
In
an appeal against acquittal it is quite open to the Court to review the
evidence in order to see whether finding on which acquittal has been
based is perverse being wanton disregard of good and unblemished
evidence given by other witnesses who got no grudge or enmity whatever
with the accused.
Faizur Rahman (Md.) and another Vs. Mokarram Hossain and others, 2012, 41 CLC (HCD)
State Acquisition and Tenancy Act, 1950 (XXVIII of 1951); Section 144B.
No
suit or application shall be brought in a civil court in respect of any
order directing the preparation or revision of record-of-rights under
this chapter or in respect of framing, publication, signing or attesting
of such a record or any part of it, and if any such suit or application
is pending before a civil court, it shall not be further proceeded with
and shall abate and if any judgment, decree or order has been passed in
any such suit or any order has been passed on any such application, it
shall be inoperative and of no legal
effect….........................(22)
Tayeb Ali Vs. Abdul Khaleque and others, 1990, 19 CLC (AD)
The Specific Relief Act, 1877 (I of 1877), Section 42
The
suit being one for declaration of title to an unspecified share of an
undivided plot of land and there being no evidence that the donor
thereof was in exclusive possession at any time, the present suit is not
maintainable without a prayer for partition.
Afruz Miah (Md) and another Vs. Alhaj Md. Siraj Miah, 1990, 19 CLC (AD)
The Code of Civil Procedure, 1908 (V of 1908), Order 6 rule 17
This
is not substitution of one cause of action for another, but a
consolidation, of all‑wrongs allegedly done to the deceased plaintiff -
It will not change the nature and character of the suit at all, nor will
it widen the suit and impose upon these appellants any additional
burden of adducing evidence on unrelated matters. The addition of
parties is corollary to the amendment sought for. It no way changes the
complexion of the suit.
The Companies Act, 1913, Section 38
Although
section 38 of the Companies Act empowers the Company Court to rectify
share register, it is well‑settled that a suit is not barred thereby,
especially when detailed evidence is to be taken to settle issue of
fact.
State Vs. Md. Shafiqul Islam alias Rafique and another, 1990, 19 CLC (AD)
Abdul Hai Sikder and another Vs. State, 1990, 19 CLC (AD)
The evidence of a solitary witness can very well be the basis of conviction if his evidence is full, complete and self contained, stands fully corroborated by circumstances and medical evidence on record and remains unshaken by cross examination.
Shamsuddin Ahmed & others Vs. City Bank Ltd., 2012, 41 CLC (HCD)
Artha Rin Adalat Ain, 2003; Section 57, 32.
Code of Civil Procedure, 1908, Order XXI, rule 9, Order XXXIV, rule 5
Absence of reference of Review Committee in final decree-
In
the final decree there is no reference of Review Committee or any one
else, neither is there any direction to take consideration into any
decision of any Review Committee or any other authority or person. It is
settle principle that the execution court cannot go behind the decree.
So the execution court does not have any jurisdiction to take into
consideration of any thing stated in preliminary decree……..(14)
Whether the sale of the property once made absolute can be affected even if the decree is overturned-
It
is settle principle of law the sale of the property once made absolute
the same is not affected even if the decree is reversed. The auction
sale was made absolute by way of confirmation. The sale can be set-aside
under provisions laid down in the Code of Civil Procedure 1908 on the
grounds provided in the said provisions. In the instant case the
judgment debtors once filed an application under Order XXI Rule 90 of
the CPC. The execution court vide order No.150 dated 15-3-2004 rejected
the said application of the judgment debtors after giving detailed
reasoning. The present appellants have not filed any proper application
under Order XXI Rule 90 for setting-aside the sale. The present
appellant has filed the said application dated 4-2-2008 under section 57
of the Artha Rin Adalat Ain, 2003…..(15)
Whether the appellants can claim for Right of equitable redemption when the final decree is drawn and the sale is confirmed-
It
is settle principle of law that after drawing final decree the right of
redemption of the mortgagor does survive any more. After final decree
the mortgagor has only remedy under Order XXXIV Rule 5 of CPC. But such
remedy under order XXXIV Rule 5 of CPC can be availed of only before the
sale pursuant to the said final decree is confirmed by the
court…………(16)
Whether the petition is maintainable without deposition of required security money-
The
requirement of depositing 25% of decreetal amount is mandatory since
the consequence of not depositing 25% of decreetal amount is stipulated
in the said section 32 of the said Act to the effect that the said
application shall be rejected…..(17)
Zahura Khatun and others Vs. Rokeya Khatun and others, 1991, 20 CLC (AD)
Code of Civil Procedure, 1908;
Transfer of Property Act, 1882; Section 106
Whether the present defendant- respondents who were substituted during the pendency of the suit upon the death of the original tenant are liable to be ejected without any further notice
and
whether the defect in this notice under section 106 of the Transfer of Property Act, namely termination of tenancy not coinciding with the end of a Bengali Calendar month, is a mere irregularity which can be corrected by extending the period of notice, if it is at all necessary in the circumstances of the case –
Learned Counsel for the landlord‑ appellants has not pressed the first point on which leave was granted. When the leave was granted with the tacit admission that the notice was defective we cannot, in fairness, embark upon a fresh inquiry into the validity of the notice. The landlord‑appellants having abandoned that point cannot be allowed to re-agitate the same in the absence of the respondents.
Quazi Nowab Faruque & another Vs. Abdul Latif Bhuiyan & others, 1991, 20 CLC (AD)
Zakir Hossain and others Vs. The State and other, 1990, 19 CLC (AD)
The Code of Criminal Procedure, 1898 (V of 1898), Sections 195(1) (c) & 561A
Whether the jurisdiction of the Criminal Court was barred under section 195(1) (c) of the Code of Criminal Procedure to take cognizance of alleged offences except on the complaint in writing of that Civil Court.
The
civil suit was instituted before the filing of the FIR and the
questioned documents in their originals are yet to be produced and
examined by the Civil Court the criminal proceeding where those very
documents are claimed by the informants as forged, may, in the interest
of justice, be stayed till the disposal of the civil suit.
Bangladesh Vs. Mohammed Ali and 6 others, 1980, 9 CLC (AD)
Martial Law Regulation No. 1 of 1975, Regulation No.4(4)
Whether the Government's power of review under Regulation No.4(4) includes the power to convert an acquittal into conviction.
Unless
the power of conversion of acquittal into conviction is specifically
provided in a statute such power cannot be read into it and exercised.
Before the provision for review was brought into this statute by
amendment there was provision for appeal against an order of sentence of
a Martial Law Court and the appellate power specifically included the
power of enhancement of sentence. Even then the appellate power did not
include the power of converting acquittal into conviction. In the
absence of any specific provision for converting acquittal into
conviction, the Government exercised jurisdiction which was not vested
in it and the impugned order of conviction is void.
Abul Hashem Vs. State, 2010, 39 CLC (HCD)
The Evidence Act, 1872; Section 114(g)
The Code of Criminal Procedure, 1898; Section 161
When to take an Adverse Presumption-
In a case where there is no eyewitness or there is hardly any circumstantial evidence it is essential that the persons who are the next door neighbours or lived near the place of occurrence should be examined for unfolding of the case. And when the prosecution did not examine the witnesses without satisfactory explanation adverse presumption under section 114(g) of the Evidence Act must be drown against the prosecution………………(46)
When an Investigation Officer should be withdrawn-
Investigation
Officer showed very negligence in investigating the case. He did not
examine the persons who were vital witnesses and for want of their
evidence the prosecution had measurably failed to prove its case beyond
all reasonable doubt. In such a case the investigation officer who
submitted the charge-sheet on the basis of his perfunctory investigation
should be given stigma and he should be withdrawn from
investigation…………………… (48)
Bangladesh Inland Water Transport Corpn & ors Vs. Nazma Flour Mills Ltd. & others, 1991, 20 CLC (AD)
The Evidence Act, 1872 (I of 1872), Section 73
Whether the High Court Division acted illegally in giving the impugned direction instead of directing examination of the thumb impression of the alleged executant in the impugned documents by an expert.
Before
the Trial Court there was no admitted Signature of thumb impression of
Profulla Chandra for comparing the thumb impression or signature in the
deed in question. This is a case for eviction and not one for
determination of title between the two competing parties. Profulla
Chandra was not present before the Court either as a witness or in any
other capacity, in the facts of the case the question of directing him
to give his specimen signature in Bengali does not arise under section
73 of the Evidence Act.
Golam Kader Vs. Abdul Khaleque Choukder and others, 1990, 19 CLC (AD)
The Code of Civil Procedure, 1908 (V of 1908), Order I Rule 10
Whether the appellants are not necessary parties in the facts of the present case.
The
High Court Division found that appellant Nos.1 and 2 have not made any
specific averments to the effect that they are directly interested in
any manner in the suit land. They are not claiming through the
defendants of the present suit. They have set up an independent title of
their own. Their averments in the application for addition of party
disentitle them to be included within the framework of the present suit.
That will convert the present suit for specific performance of contract
into a suit for determination of title which is not permissible in law.
The appellants may file an application for analogous hearing of Title
Suit No.7 of 1969 with the present suit, if they so desire.
Karimunnessa Begum Chowdhurani and others Vs. Niranjan Chowdhury and another, 1990, 19 CLC (AD)
(East Bengal Act No. XXVIII Of 1951), Section 96
Whether
the "doctrine” barring partial pre‑emption stands in the way of getting
pre‑emption of four out of five holdings, transferred under the same
kabala although he is a co‑sharer in all the five holdings and as such
is entitled to pre‑empt them all.
The expression "a portion or a share of a holding transferred" means that the co‑sharer, by pre‑empting the portion/share transferred to a stranger, he will keep in tact the original holding excluding the stranger‑purchaser there from; and if he does not intend to pre‑empt the other holdings transferred it is presumed that he has waived his right to pre‑empt them.
Section 96 gives right to a co‑sharer tenant, like the respondent‑pre‑emptor to purchase the "portion or share of a holding transferred"-five holdings were transferred by a single kabala and consideration money of each of the holdings was shown separately in the kabala. The petitioner deposited the consideration money for the four holdings he prayed for by way of pre‑emption; there was no difficulty in allowing his prayer for pre-emption of the four holdings as pre‑emption is preferable holding-wise. This pre‑emption is not hit by the doctrine of partial pre‑emption. By the pre‑emption in question he is entitled to get those portions or shares so that he could keep in tact the original holding or holdings.
Bangladesh Vs. Most. Sharifjan Bibi and others, 1991, 20 CLC (AD)
Kazi Abdul Jalil Vs. Jashim Munshi and another, 1990, 19 CLC (AD)
The Code of Criminal Procedure, 1898 (V of 1898), Section 167(7)
The Code of Criminal Procedure (Amendment) Ordinance, 1982 (Ordinance No. XXIV of 1982), Section 35(d)
Whether
the investigation, on the basis of which the police submitted
charge‑sheet against the accused respondents, is hit by sub‑section (7)
of section 167 of the Code of Criminal Procedure and consequently, they
are entitled to be released.
The provision in clause (d) of section 35 of the Ordinance is not intended to be mandatory. The purpose obviously is to
save an investigation which had started at the time when there was no
time‑limit for its conclusion. Had this provision been intended to be
mandatory, the consequence for non‑compliance thereof would have been
definitely mentioned., that is, it would have been provided that if the
pending investigation is not completed within 90 days, further
investigation shall be stopped and the accused, if in custody, shall be
released.
Dhanu Mia (Md) and another Vs. The State, 1991, 20 CLC (AD)
The Special Powers Act, 1974 (Act No. XIV of 1974), Section 30
Whether
the High Court Division failed to exercise his discretion justly and
properly in refusing bail in a case where the sentence is of a short
duration.
In
the present case the sentence is of two years and the disposal of such
appeal normally takes time. Refusal of bail will render the appeal
infructuous in the event of success of the appeal and in that
circumstances the learned Single Judge of the High Court Division ought
to have exercised his judicial discretion in the matter of granting bail
to the appellants.