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Moniruddin Sarker Vs. Nurul Huq Khan & others, 1988, 17 CLC (AD)
....id custom and the period for ascertaining the reasonableness of a valid custom is the time of its possible inception. Considering changed circumstances the Court may modify, extend or even disallow a right based on a custom that was otherwise reasonable at its inception, if it places an unusual and ....................................................Respondents Judgment: July 7, 1987. Custom There is no dispute that reasonableness is. an essential clement of a valid custom and the period for ascertaining the reasonableness of a valid custom is the time of its possible inception. Conside......with by Tindal CJ. in Tyson v. Smith: "But it is said the number of these victuallers may be so large, and the space occupied by each so great, as that the whole portion of the common set out for the fair may be taken by them in exclusion of the rest .... But it is obvious that this is not an argume......luki interest at a court sale and brought the land under his khas possession. In 1350 B.S. he leased out the suit land to defendant No. 1 who had been in possession of the same as a tenant. 3. The trial Court dismissed the suit after finding that the plaintiffs had no right of way or of drainag..Category: Civil Law | Date: | Hits: 113
Dipok Kumar Sarker Vs. The State, 1988, 17 CLC (AD)
....ccused is under no obligation to account for the death for which he is on trial. The consideration is bound to be different in a case like this……………..(16 & 17) The High Court Division was right in taking the view that a delay of one year seven months in disposal of the death reference co...........................................Respondent Judgment November 8, 1987. The Penal Code, 1860 (XLV of 1860), Section 302 FIR is not a piece of substantive evidence but may be used for corroborating or contradicting the maker only. omission in the FIR of the fact leading to recove......onment for life. In the result, therefore, the appeal is dismissed but the sentence of death is commuted to imprisonment for life. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 139 ...... relevant time and thus he was obliged to give an explanation as to how his wife had met with her death although normally an accused is under no obligation to account for the death for which he is on trial. The consideration is bound to be different in a case like this……………..(16 & 17) Th..Category: Criminal Law | Date: | Hits: 61
Karatala Lakshmi Bihar Vs. Hriday Ranjan Chowdhury & others, 1988, 17 CLC (AD)
....as the controversy? A court of law does not decide a point in vacuo. Decree means "the formal expression of an adjudication which so far as regards the court expressing it conclusively determines the right of the parties with regard to all or any of the mailers in controversy in the suit." Where the......ion that Hindu law is applicable in their case. A court of law does not decide a point in vacuo. Where there is no controversy, the Court is not expected to lay down a law on supposed controversy. As for the other questions whether the parties should be governed by principles of equity, justice and ......s no controversy and no body had alleged anything to the contrary. The point rests there. The appeal is therefore, dismissed. No costs. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 137 ......d their interest. The defendant threatened the plaintiff with dispossession and hence the suit. 4. Defendant resisted the suit and contended that the plaintiff is not entitled to any relief. The trial Court found that the plaintiff is out of possession of the suit land and his remedy is to brin..Category: Property Law | Date: | Hits: 32
Abdul Kader Khan Vs. Basek Khan, 1988, 17 CLC (AD)
....1962. In the result, the appeal is allowed. The case is sent back to the trial court for disposal in accordance with law. No costs. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 114 ......m in other actions but such admission cannot be regarded as conclusive proof and it is open to the party to show that it is untrue. To adjudicate upon the contention of admission in the plaint of the former suit, this matter should be remanded to the trial court to decide on evidence to ascertain id......1962. In the result, the appeal is allowed. The case is sent back to the trial court for disposal in accordance with law. No costs. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 114 ......arded as conclusive proof and it is open to the party to show that it is untrue. To adjudicate upon the contention of admission in the plaint of the former suit, this matter should be remanded to the trial court to decide on evidence to ascertain identity of the disputed plot to verify truth or othe..Category: Property Law | Date: | Hits: 36
M/s. A. Haque and Co. & another Vs. Al-Haj Zakir Hossain, 1988, 17 CLC (AD)
....ied contract either can be said to have been created simply by the fact of payment and acceptance of rents for several months at a time. Such irregular payment did not also constitute a waiver of the right to receive rents as per provision under section 18. The appellants having failed to prove that......1984. The Premises Rent Control Ordinance, 1963 (XX of 1963), section 18(5) No implied contract either can be said to have been created simply by the fact of payment and acceptance of rents for several months at a time. Such irregular payment did not also constitute a waiver of the right t......rcome the mischief arising from their default For the reasons stated above, the appeal is dismissed without any order as to costs. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 109 ....... Since then defendant-appellants have been regularly depositing the rents with the House Rent Controller and hence they are not defaulters and not liable to be evicted. The suit was decreed by the trial court but on appeal it was dismissed by the first appellate Court Plaintiff-respondent, howe..Category: Tenancy Law | Date: | Hits: 112
The State Vs. Abdur Rashid Piada, 1988, 17 CLC (AD)
....k that this finding is perverse or against any evidence justifying interference by us. 7. In the result, the appeal is dismissed. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 106 ......hali by an order dated 26 January, 1983 under sections 302/34 and 201 of the Penal Code; all of them except accused Hafez were sentenced to death while accused Hafez was sentenced to transportation for life. Along with them were tried one Joynal Khan and one Yasin Majhi who were however convicted ......k that this finding is perverse or against any evidence justifying interference by us. 7. In the result, the appeal is dismissed. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 106 ......the statement he (Joynal) found out those three bags containing a person's dead body which was identified as that of Wazed. The police investigated the case and sent up the accused persons to stand trial on charges of murder of Wazed and concealment of the dead body. Defence was total denial of ..Category: Criminal Law | Date: | Hits: 45
Jobeda Khatun & Ors Vs. Md. Hamid Ali being dead his heirs Taherun Nessa and ors, 1988, 17 CLC (AD)
....e documents of the defendants would hang in the air and their substantive case would remain unconnected with the documents in the absence of oral evidence. In this context the High Court Division rightly observed that it is well-known that the statements made in the written statement are not evi...... March 31, 1987. The Code of Civil Procedure, 1908 (V of 1908), Order XLI, rule 23 The documents being lawfully admitted into evidence on behalf of the appellants but could not be considered for want of oral evidence as held by the High Court Division and on such finding the suit ought to h......court for fresh trial in the light of the observation made above. The appellants will bear costs of the respondents in this court. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 101 ......d with permission to examine witnesses in support of the document already proved. However the Heba-Bil-Ewaj having been disbelieved by the courts below concurrently shall not be reopened in the fresh trial…………………..(11 & 12) Lawyers Involved: T. H. Khan, Senior Advocate, instructed..Category: Property Law | Date: | Hits: 34
The State Vs. Madhu Mirdha, 1988, 17 CLC (AD)
....er of the High Court Division is set aside and it is directed that the trial be held according to the amended provision of Criminal P.C. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 99 ......t Vs. Madhu Mirdha..............Respondent Judgment August 18, 1987. The Code of Criminal procedure, 1898 (V of 1898), Section 339C read with Ordinance No. 37 of 1983 Time limit for trial was extended from time to time and the last date for conclusion of trial was on 30/06/1985......er of the High Court Division is set aside and it is directed that the trial be held according to the amended provision of Criminal P.C. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 99 ...... Vs. Madhu Mirdha..............Respondent Judgment August 18, 1987. The Code of Criminal procedure, 1898 (V of 1898), Section 339C read with Ordinance No. 37 of 1983 Time limit for trial was extended from time to time and the last date for conclusion of trial was on 30/06/1985. Th..Category: Criminal Law | Date: | Hits: 60
Abul Kashem and another Vs. The State, 1988, 17 CLC (AD)
...., the period of 53 days not presided by the district and sessions judge shall not be added as working days for computing limitation under section 339(c) of the Cr.P.C. the period of 53 days have been rightly excluded from the working days…………………..(2) Lawyers Involved: K.Z. Alam, A......udgment April 10, 1986. The Code of Criminal Procedure, 1898 (V of 1898), Section 339C. The District and Session Judge not being the presiding judge of the court (reasons being not explained) for 53 days and the court being presided by some other judge not being the District and Sessions Jud......referred to is found to have been rightly excluded from the working days so far as this case is concerned. The petition is dismissed. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 97 ......vision dated 2 February 1986 summarily rejecting their application under section 561 A, Crl.P.C.for quashing the proceedings in Sessions Trial Case No.29 of 1985, Noakhali. The petitioners are facing trial on a charge of murder in the said proceedings. They alleged that the trial was not concluded w..Category: Criminal Law | Date: | Hits: 52
M/s Binning & Co.(Bangladesh) Ltd. Vs. M/s Nasirabad Properties Ltd., 1988, 17 CLC (AD)
.... on this footing that if subsequent defaults are not taken into consideration then the only period of default is that March, 1973 to August, 1973 and by acceptance of rent the landlord has waived his right to sue for eviction. 26. This contention has force because if the subsequent default period......zle Hussain Mohammed Habibur Rahman and Mr. Justice Syed Mohammad Ali) on 18th July, 1984. 2. Respondent-plaintiff instituted O.S. No. 8 of 1975 in the First Court of Subordinate Judge, Chittagong for recovery of khas possession of the suit premises after rejecting the defendant- appellant and fo......hief Justice. Order of the Court. By the majority decision, the appeal is dismissed. There will, however, be no order as to costs. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 89 ......foresaid suit was filed to pressure for enhancement of existing rent and the appellant was not liable to pay compensation. The suit was, therefore, liable to be dismissed. 4. On 26th December 1979 trial court decreed the suit for ejectment directing the appellant to hand over vacant possession of..Category: Tenancy Law | Date: | Hits: 109
Bangladesh and others Vs. Dhaka Lodge Welfare Society, 1988, 17 CLC (AD)
....hese evidence as additional evidence which will enable the plaintiff to give challenge 10 the claim. There will be no order as to costs. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 86 ...... Judgment June 22nd 1987. The Constitution of Bangladesh, 1972 (as amended), Article 10 The constitutional obligation of the Appellate Division is to do complete justice and in doing so for the interest of justice and to clarify the factual position correspondence made between the part......hese evidence as additional evidence which will enable the plaintiff to give challenge 10 the claim. There will be no order as to costs. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 86 ......ify the factual position correspondence made between the parties in the disputed matter and other relevant papers should be taken into consideration even though those papers were submitted before the trial court after the evidence was closed and those papers thus not taken into evidence. The case is..Category: Property Law | Date: | Hits: 39
Md. Abdul Majid Sarkar Vs. The State, 1988, 17 CLC (AD)
....ion or the trial court to consider the applicability of section 304 Penal Code. In the result, therefore, the appeal is dismissed. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 83. ...... section 300, Clauses 1, 2, and 3. The weapon used was a lethal one and the injury, grave in nature, was caused on the vital part of the body. The intention to cause death of the victim, therefore, is prima facie apparent. Even otherwise it can be said that the act was done with the intentio......ion or the trial court to consider the applicability of section 304 Penal Code. In the result, therefore, the appeal is dismissed. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 83. ......He obtained leave to appeal to contend that he ought to have been convicted for culpable homicide and not murder. 2. Facts of the case are as follows: Appellant along with three others were put on trial before the Additional Sessions Judge, Rangpur for an offence under sections 302/34 Penal Code ..Category: Criminal Law | Date: | Hits: 52
Afroz Rashid Chowdhury Vs. Fazlul Karim Tarafder, 1988, 17 CLC (AD)
....ts were shown in the Record-of-Rights to be "in forcible possession" of the land of the plaintiff. The learned Advocate for the appellant submitted that in view of the fact that Ext. D, the record of rights, was corrected on the plaintiff's own petition by directing that the disputed plots 1310,1320......rd, Hasumia, was in possession, but as he refused to deliver the possession, he filed Title suit No. 5 of 1950 and took deliver) of possession through court on 27th May, 1951 in execution of a decree for eviction, passed in that suit. 3. Thereafter the plaintiff possessed the suit land through ad......e the learned Single Judge rightly refused to interfere with the finding of the last court of fact. The appeal is dismissed with costs. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 79. ......ants Nos.1-7; that they have possessed the same from the nine of their ancestors and that the decree in Title suit No.5 of 1950 is collusive, fraudulent and not binding upon the defendants. 5. The trial court rejected the defendant's claim of title by inheritance, found the plaintiffs title in th..Category: Property Law | Date: | Hits: 35
Mir Abdul Ali Vs. Md. Rafiqul Islam, 1987, 16 CLC (AD)
....udge. It was submitted that the positive and consistent case of the defendant appellant was that his purchase being earlier on the basis of the bainapatra accompanied with the delivery of possession; right, title and interest in the suit land devolved upon him on the day of execution of the bainapat......ivil Revision No. 720 of 1984 reversing the concurrent judgment of the Munsif, 4th Court, Narayanganj and of the Subordinate Judge, 3rd Court, Dhaka. 2. Respondent filed Title Suit No. 355 of 1976 for mere declaration of his title to the suit land and by subsequent amendment of the plaint he pray......f the High Court Division is set aside and those of the Courts below are restored. There will be no order as to costs. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 75, 1988 BLD (AD) 149.......rt, Dhaka. 2. Respondent filed Title Suit No. 355 of 1976 for mere declaration of his title to the suit land and by subsequent amendment of the plaint he prayed for permanent injunction. 3. The trial court dismissed the suit and found that the plaintiff never had got the possession of the suit..Category: Property Law | Date: | Hits: 118
Md. Shamsuddin alias Lambu and ors Vs. The State and others, 1988, 17 CLC (AD)
....in Ahmed, JJ; I concur with the judgment of Shahabuddin Ahmed, J. Order of the Court By majority decision the appeal is dismissed. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 69 ......e allegation upon which it is based is, on the face of it, groundless or so preposterous that no man of ordinary prudence will take any notice of it. Mere delay in lodging a complaint is not a ground for quashing a proceeding, for there are varied circumstances in which lodging of any information as......ed have not challenged it; in the charge-sheet they have been shown as absconding. 13. The learned Counsel for the appellants produced before us a government Notification of the Ministry of Home Affairs dated 25 April 1980 showing the appointment of a Commission of Inquiry for the purpose of maki......s for the prosecution to prove their case beyond reasonable doubt by adducing all the evidences at their disposal: whether such evidence can be relied upon is a matter which will be considered by the trial Court……………………….(11) Cases Referred to- Farruk Ahmed vs. Abdul Kader 38 ..Category: Criminal Law | Date: | Hits: 46
....gar ................Appellant
vs.
M.Zahirul Alam, General Manager, Bangladesh Shipping Corporation and others…....Respondents
Judgment
August 24, 1987.
Words and Phrases
Inchoate right means a right that has just begun but not yet developed into maturity. Protection of inchoate ......right that has just begun but not yet developed into maturity. Protection of inchoate right of the tender may be sought when any other tender is, accepted in violation of the conditions of the tender forum. The appellant had submitted tender on 18 December, 1986 and claimed that his tender was the h...... the appeal is dismissed, without, however, any order as to costs. Stay granted by this Court on 2-7-87 is vacated.
Ed.
This Case is also Reported in: 40 DLR (AD) (1988) 62; 8 BLD 1999 (AD) 29.
......
Shahabuddin Ahmed J. - This appeal by the plaintiff is directed against the High Court Division's order in revision refusing temporary injunction upon setting aside the concurrent decision of the trial court and the appellate court which had earlier granted the same. The impugned order of the Hi..
Category: Business or Commercial Law | Date: | Hits: 95
Sr. Manager, M/s. Dosta Tex Mills Ltd., Ranirhat, Feni & ors Vs. Sudhansu B Nath, 1988, 17 CLC (AD)
.... Government of Bangladesh, 30 DLR 219. There the question of implied ouster of the civil court's jurisdiction by a special law namely, the Customs Act, was considered. It was held there that "where a right is created by a statute which also prescribes the manner in which that right may be enforced, ......s managerial or administrative in nature. He got no power to control or to supervise the work of any other person. Nature of his work does not bring him within the category of 'employer'. It is, therefore, clear that the respondent is not an’ employer' but is a ‘worker’ under the Act. The very...... and the lower appellate court arc set aside and that of the trial court is restored, though on different grounds. No order as to costs. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 45 ......rt Division's order dated 7 July, 1985 in Civil Revision No. 73 of 1984 refusing to interfere with a decree of the appellate court. By that decree the appellate court on reversing the decision of the trial court declared invalid the appellant's order dismissing the respondent from service under the ..Category: Labour and Industrial Law | Date: | Hits: 122
Jamal and others Vs. The State, 1987, 16 CLC (AD)
....ot been disposed of with the care and in the manner as it should have been. From our consideration of the case it, however, transpired that the order of acquittal under section 364/149 Penal Code was right but the impugned Judgement does not justify the said order. We have come to the conclusion tha......ed 12 March 1984 passed by the High Court Division (Rangpur Bench) in appeal upholding the conviction and sentence of the appellants under sections 302/109 Penal Code. 2. The appellants along with forty (40) others were put on trial before the Additional Sessions Judge, Rajshahi. Forty two (42) a......n subsequently introduced. Upon such finding not only Musa Sarkar but also others who were said to be present with him on the bank of the river were acquitted by the trial court. I think it should be fairly plain to anybody that not much credibility can be attached to the prosecution case after the ...... High Court Division (Rangpur Bench) in appeal upholding the conviction and sentence of the appellants under sections 302/109 Penal Code. 2. The appellants along with forty (40) others were put on trial before the Additional Sessions Judge, Rajshahi. Forty two (42) accused persons including the p..Category: Criminal Law | Date: | Hits: 55
Tajabunnessa and others Vs. Mrs. Nazma Begum and others, 1988, 17 CLC (AD)
....was created in favour of defendant No. 1 by the appellant's predecessor was terminated, a sub-lease in favour of defendant No. 2 by the tenant cannot be said to have subsisted. Since the basis of the right of defendant No. 2 to stay on in the suit premises is found non-existent, she cannot be allowe......(A.T.M. Afzal, J.) on 12th February, 1984. 2. Plaintiffs' predecessor Abdul Aziz Bepari instituted S.C.C. Suit No.1 of 1973 in the court of Small Causes Court Judge-cum-Munsif, 1st Court, Chandpur for eviction of defendant- respondent Nos. 1 and 2 from the suit premises. Respondent Nos. 1 and 2 w......nd decrees of the High Court Division are set aside and those of the trial Court restored. There will, however, be no order as to costs. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 36 ......er, found that the suit for eviction was not maintainable against defendant No. 2 who is neither a sub-lessee nor a tenant under the plaintiff and accordingly set aside the judgment and decree of the trial Court. 5. The present appellants who are the heirs of the plaintiff Abdul Aziz Bepari moved..Category: Tenancy Law | Date: | Hits: 95
Rahima Akhter and others Vs. Asim Kumar Bose and others, 1988, 17 CLC (AD)
....ph 4 of the East Pakistan Enemy Property (Lands and Buildings) Administration and Disposal Order the contract could be specifically performed and then answered the query by observing: “All legal right and obligations that followed from the agreement in question were snapped.” 10. Next the ......mergency Provisions) (Repeal) (Amendment) Ordinance, 1976 (Ordinance No. 93 of 1976), section 2 The contract was made by Hemnalini and she died within a year of the agreement. Plaintiff was asking for the kabala and since the property became enemy property the defendants, the heirs of Hemnalini c......al court restored, and the plaintiff gets the Kabala in pursuance of the decree of the trial court. There will be no order as to costs. Ed. This Case is also Reported in: 40 DLR (AD) (1988) 23. ......compliance with the provisions of P.O. 142 of 1972 Government of Bangladesh was added as defendant No. 4 and it adopted written statement filed by the Assistant Custodian of Enemy Property. 6. The trial court decreed the suit holding that the Bainapatra was a genuine document and the appellants w..Category: Property Law | Date: | Hits: 47
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