The Code of Criminal Procedure, 1898 (V of 1898), Section 498

Whether in view of the ad interim bail granted by the lower Appellate Court to move the High Court Division in revision, the High Court Division acted properly in refusing the prayer for bail and at the same time directing the appellants to surrender after 29.1.89 and file a separate application for bail before the High Court Division.

In the present case, the offence is under Section 323 of the Penal Code which is a bail able one and the sentence is also of a short duration When the appellants were already on bail granted by the lower Appellate Court, the direction that has been given in the present case by the learned Single Judge of the High Court Division by rejecting the prayer for bail is not proper and is not in keeping with the normal practice and procedure that is traditionally followed in the High Court Division in revision. 

The Partnership Act, (IX OF 1931); Section 14 and  69(2)

Whether the immovable town and country properties of Schedules 1Ka, 2, 3 and 5 of the plaint, standing jointly in the names of the predecessors of the defendant‑appellants and plaintiff‑respondents, are in fact partnership properties or personal properties of both

The plaintiff made positive statements in the plaint that the schedule properties were purchased "for the interest and benefit" of both the partners and not for the firm itself. He led evidence to that effect. It is too late in the day to assert that because of the acquisition of the properties by money belonging to the firm these are ipso facto partnership properties. The plaintiff has also proved the "contrary intention" to the hilt.

The Code of Civil Procedure, 1908 (V of 1908), Order XLI Rule 23

Whether there was any necessity for remanding the case to the Trial Court for re‑trial when there was concurrent finding of the two courts below in respect of possession and the entire evidence, both oral and documentary, having been available on record.

Preparation of the paper book having been dispensed with at the instance of the appellants. The evidence including Ext. 8 series could not be examined. The Revisional applications should better be disposed on merit by the High Court Division itself on the basis of the evidence already on record without sending the case on remand of the trial Court. 

Constitution of Bangladesh, 1972; Article 135

Whether the impugn reversion to the respondent's substantive post after his acting in a higher post can be termed a reduction in rank.

The post of an IPO is a promotion post. There could not be any promotion to the post of IPO without appearing successfully in the competitive examination of the Department. Any order of reversion after an incumbent's appointment' to a higher post and continuing there for some duration will surely cause a disappointment as he would no longer draw the benefits of that higher post, but that cannot be called a reduction in rank per se. The uninterrupted service rendered by the respondent for about five years, if considered as "one non‑temporary or quasi‑permanent" even then the impugned order of reversion cannot be termed as an instance of reduction in rank for attracting the protection under Art. 135 of the Constitution. The language of the impugned order indicates in unmistaken manner that it was never meant to be an order of promotion. In the facts of the case the respondent was not entitled to any show‑cause notice nor there any violation of any principle of natural justice. Therefore, the respondent's contention that he acquired a vested right to the post of IPO by virtue of his acting in that capacity for about five years and enjoying all the emoluments and other benefits must fail. 

Code of Civil Procedure, 1908 – Order XXI rule 68

Whether the High Court Division was correct in setting aside the judgment of affirmance of the appellate Court which found material irregularities and fraud in publishing and conducting the sale, by overlooking the provision of Order 21 rule 68 of the Code of Civil Procedure and whether he wrongly upheld the auction sale in question.

The High Court Division upheld the sale only on the ground that the son of defendant No. 1 being heir of judgment‑debtor contested the suit and as such it must be presumed that the son of defendant No. 1 had knowledge of the execution case when he himself was a party in the execution proceeding. The High Court Division failed to consider that the decree was put into execution for realisation of decretal costs and the validity of the decree was not under challenge and the main question was whether the auction sale was validly and legally held. It appears that the High Court Division did not apply his judicial mind to those material questions touching upon the auction sale. Consequently, the judgment of the High Court Division is liable to be set aside.  

The Code of Civil Procedure, 1908; Order 41 Rule 4 and 20

Whether the provision of rule 4 of Order 41 of the Code of Civil Procedure can be applied when the non‑appealing defendant has not been impleaded in the appeal at all and is not before the Appellate Court.

The language of rule 4 of Order 41 of the Code creates a legal fiction in the sense that the appeal filed by some of the defendants will be treated to be an appeal on behalf of all the defendants and the benefit of the appeal may be extended in favour of the non‑appealing defendants as because the ground of the decree against all of them is common. Thus the provision of rule 4 of Order 41 only authorises one of the several plaintiffs or defendants to prefer appeal. But the appeal which was incompetent at its inception for omission to implead a necessary party would remain incompetent till the end of it, unless otherwise during the pendency of the appeal necessary parties are brought on record.

The plaintiff obtain a joint decree for specific performance of contract against all the defendant Nos. 1-6, and defendant No.2 having not been brought on record and she having not filed any appeal there was possibility of' two inconsistent and conflicting decrees if the appeal was to proceed in her absence and as such the appeal became non‑maintainable.

Necessary party having been omitted, the appellate Court could have exercised its discretion vested in it under Order 41 rule 20 of the Code of Civil Procedure, but the same cannot be done suo motu by the Court itself without any application by the appealing defendants themselves. 

The Companies Act, 1913; Section 162

Whether the learned Company judge fell into serious error of law in staying sine die all further proceedings of winding up petitions without taking oral evidence and going into the merit of the cases-

Order staying the applications for winding up sine die amounts to rejection of the applications. There was hardly any materials to hold that Companies have failed to carry out their objects and that the assets of the companies are not sufficient to satisfy the bonafide claim of the creditors. The affidavits and counter‑affidavits filed by the parties for winding up was not a bonafide one and the same was made for collateral purpose.

It is not be permissible in law to re‑open the matter on the basis of the statements and grounds as contained in the winding‑up applications as the applications are strictly confined to the grounds expressly taken in these petitions. Even new facts cannot be incorporated by amendment in the existing applications for winding up and on that score as well the revival of these applications is not called for. The appellants can file fresh applications for winding up new or continuing causes of action. 

Whether plaint can be rejected when question of jurisdiction of the Village Court was raised in the plaint without determining the truths of allegations by taking evidence