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IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAPPPPEELLLLAATTEE DDIIVVIISSIIOONN
PPRREESSEENNTT::
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Md. Shahinur Islam
CIVIL PETITION FOR LEAVE TO APPEAL NO.494 AND 495 OF 2018
(From the judgment and decree dated the 16th day of May, 2017 passed by the
High Court Division in First Appeal No.106 of 2009 and Cross Objection No.
795 of 2011 respectively.
Engr. Md. Shaheedullah : . . . Petitioner
(In both the cases)
-Versus-
Mrs. Shahana Neyamat and others : . . . Respondents
(In both the cases)
For the Petitioner
(In both the cases)
: Mr. Mohammad Mehadi Hassan
Chowdhury, Senior Advocate
instructed by Mr. Mohammad Ali
Azam, Advocate-on-record
For Respondent No.1
(In both the cases) : Mr. Saifur Rashid, Advocate
instructed by Mr. Md. Azimuddin,
Advocate-on-Record
For Respondent Nos.2-3
(In both the cases) : Not Represented
Date of Hearing and Judgment : The 24th day of July, 2024
JUDGMENT
M. Enayetur Rahim, J: Civil petition for leave to appeal
No.494 of 2018 is directed against the judgment and order
dated 16.05.2017 passed by the High Court Division in First
Appeal No.106 of 2009(heard along with Cross Objection
No.795 of 2011) allowing the appeal, and Civil Petition for
leave to Appeal No. 495 of 2018 is directed against the
order passed by the High Court Division in Cross Objection
No. 795 of 2011 rejecting the same.
The relevant facts leading to the filing of these
civil petitions for leave to appeal are that, the present
respondent No.1 as plaintiff instituted Title Suit No.11 of
2004 in the Court of Joint District Judge, 3rd Court, Dhaka 2
for specific performance of contract contending, inter alia,
that defendant No.1 (present petitioner)is the owner of Plot
No.42 of Sector 3, Uttara Model Town, Mentioned in the
schedule of the plaint, who erected a six storied building
having 10 apartments in the suit plot No.42. Thereafter, he
sold out some of the apartments to different persons along
with 1/10th portion of undivided and un-demarcated land of
594 square yards (7.5 kathas) of the suit plot to each
apartment owner. The defendant No.1 in need of money offered
in May 2002 to the plaintiff to sell out the suit apartment
in the fourth floor (eastern side) of the said building
along with 1/10th portion of 594 square yards (7.5 kathas)
land in undivided and un-demarcated shares. The plaintiff
agreed to purchase the suit flat. Accordingly, the plaintiff
and defendant No.1 came to an oral agreement on 16.05.2002
in presence of Sabbir Zaman, Nurul Islam, Habibur Rahman and
others for the sale of the suit apartment at a price of
Tk.18,20,000/-(Eighteen Lac Twenty Thousand) only. In
accordance with the terms of oral agreement dated 16.05.2002
the plaintiff paid an amount of Tk.2,00,000/- (Two Lac) in
advance to the defendant No.1 on the same date. Husband of
the plaintiff Mr. Neyamat Ullah issued a cheque to the
defendant being No.3098557 dated 16.05.2002 of the United
Commercial Bank Ltd. Gulshan 2 Branch, Dhaka for the said
amount of Tk. 2,00,000/- (Two lac). After receiving the
cheque on 16.05.2017 the defendant No.1 delivered vacant
possession of the suit property to the plaintiff on the same
date and since then the plaintiff has been residing therein
with her husband and daughters. An oral agreement was made
between the parties that defendant No.1 shall execute and 3
register the sale deed in favour of the plaintiff by
15.05.2003 after receiving the remaining money. Thereafter,
on 27.11.02 in compliance with the terms of oral agreement,
the plaintiff issued a cheque being No.2302965 of the Al
Baraka Bank Ltd. (at present Oriental Bank Ltd.) Gulshan
Branch for an amount of Tk.10,00,000/- (Ten lac) to the
defendant No.1 and he encashed the said cheque and received
the amount. Although, the plaintiff paid Tk.12,00,000/-
(twelve lac) to the defendant No.1 in advance, defendant
No.1 did not provide any receipt to her in spite of repeated
requests on several occasions. On 30.04.2003 when the second
daughter of the plaintiff asked defendant No.1 to receive
the rest of the amount of Tk.6,20,000/- (six lac and twenty
thousand) and asked to execute and register the sale deed in
favour of the plaintiff, the defendant No.1 refused to do
so. The plaintiff again on 10.05.2003, 17.07.2003 and
30.10.2003 offered to receive the said amount and requested
the defendant No.1 to execute and register the sale deed in
her favour, but the defendant No.1 refused. Lastly on
08.01.2004 the plaintiff sent a legal notice to the
defendant No.1 asking him to execute and register the sale
deed in favour of the plaintiff within 7 (seven) days of the
date of receipt of the notice, in default the plaintiff
would file suit against him for specific performance of
contract, but the defendant No.1 did not pay any heed,
rather without giving any reply to the legal notice of the
plaintiff, he sent a legal notice to the plaintiff on
21.01.2004 through his lawyer stating that the plaintiff and
her husband are the tenants of the scheduled flat and the
defendant No.1 wanted to sell out the scheduled property 4
within 1 (one) month and also asked the plaintiff to vacate
the possession of the scheduled flat by 01.02.2004. Since
the plaintiff was inducted into possession and she has given
an amount of Tk.10,000/- (ten thousand) to the defendant
No.1 towards payment of electricity bills. However, the
defendant No.1 has not given any receipt whatsoever despite
repeated requests by the plaintiff except a handwritten note
calculating the electric bill for a period of 112 days from
01.09.2002. The plaintiff has also given an amount of
Tk.8,000/- (Eight thousand) only towards payment of gas
bill. The plaintiff after being inducted into possession is
paying an amount of Tk.2000/- (two thousand) only as service
charge which includes security, water and sewerage. The
defendant No.1 was issuing receipts for the same in the name
of the plaintiff. However, since July, 2003 with mala fide
intention, the defendant No.1 is filling up the receipts in
his own name and the defendant No.1 refused to execute and
register the sale deed in favour of the plaintiff. Hence,
the plaintiff filed the suit.
The defendant No.1 contested the suit by filing written
statement denying all the material allegations made in the
plaint contending that he is the owner and possessor of the
suit property, and being the owner and possessor, he
mortgaged the same with the Islami Bank Bangladesh Ltd.
Uttara Branch on 15.09.1999 for loan to construct 6(six)
storied building with the approved plan from RAJUK in which
there are 10 flats. To pay the construction bills the
defendants No.1 sold 6 (six)flats in the 1st, 2nd and 3rd
floor after getting clearance from the Islami Bank
Bangladesh Ltd. and after making mortgage deed dated 25th of 5
May 2003, the defendant No.1 sold 6 (six) flats to different
persons and the rest 4 flats are being possessed by the
defendant No.1 for residing there off and by letting out. As
per revised mortgage deed the defendant No.1 cannot sale the
flats of 4th and 5th floor without permission from the Bank
and he can reside or rent the flats only. The husband of the
plaintiff was inducted as a monthly tenant in the suit flat,
i.e. at flat No.4/A, in the 4th floor (eastern side) from 1st
June 2002 at a monthly rent (including service charge) of
Tk.20,000/- (twenty thousand) and a sum of Tk.2,00,000/-
(two lac) was paid by the husband of the plaintiff as
advance rent on 16.05.2002 of the United Commercial Bank
Ltd. Gulshan-2 Branch, Dhaka; like all other tenants in the
building the plaintiff is to pay all other charges like
electricity and Gas bill as utility bill. There is or was no
written contract to let or no rent receipt issued; the
husband of the plaintiff is related with the Manpower export
to foreign counties. Knowing this the defendant No.1
requested the husband of the plaintiff to send two relatives
of the defendant No.1 to Italy namely Md. Sharif Ullah, son
of Md. Fazlul Haq Sarker, Passport No.00812101, issued on
14.09.1999 and Md. Sirajul Islam, son of Md. Azahar Ali,
Passport No. Q 0849431, issued on 03.12.2001. The Husband of
the plaintiff agreed and claimed Tk.10,00,000/- (ten lac)
only and committed to send them to Italy within 3 (three)
months and if failed to do so, he will return the money
after 3 (three) months. The defendant No.1 paid
Tk.10,00,000/- (Ten lac) in cash including their passports
to the husband of the plaintiff on 10.08.2002. The husband
of the plaintiff through M/s. HEAVEN ASSOCIATES of Gulshan 6
Shopping Center (Gulshan-1) Dhaka, a recruiting agency
tried, but within 3 (three) months he could not succeed.
Then on request of the defendant the husband of the
plaintiff returned the passports of the two persons and
issued a cheque of Tk.10,00,000/- (ten lac) being No.1202965
dated 27.11.2002 of Al Baraka Bank, Gulshan Branch, Dhaka to
the defendant No.1 on 27.11.2002. The cheque of Tk.
2,00,000/-(two lac) of advance rent was issued by the
husband of the plaintiff and the returned cheque of
Tk.10,00,000/- (ten lac) was issued by the husband of the
plaintiff in favour of the defendant No.1 for the above
manpower business purpose. The defendant did not make any
oral agreement for sale. The plaintiff’s case is false.
The respective parties adduced evidence both oral and
documentary before the trial Court and the trial Court on
conclusion of the trial dismissed the suit.
Being aggrieved by the said judgment and decree the
plaintiff preferred First Appeal No.106 of 2009 before the
High Court Division. The contesting defendant No.1 also
filed Cross Objection No.795 of 2011 in the High Court
Division, which was heard along with the said First Appeal.
After Hearing, a Division Bench of the High Court
Division by the impugned judgment and decree dated
17.05.2017 allowed the appeal and decreed the suit upon
setting aside the judgment and decree passed by the trial
Court and rejected Cross Objection No.795 of 2011 filed by
the contesting defendant.
Being aggrieved by the said judgment and decree the
defendant has preferred these civil petitions for leave to
appeal before this Division. 7
Mr. Mohammad Mehadi Hassan Chowdhury, the learned
Senior Advocate appearing for the petitioners submits that
the plaintiff’s case is solely based on oral agreement
alleged to have been executed between the plaintiff and the
defendant and in the plaint few persons have been named who
were said to be present at the time of alleged oral
agreement on 16.05.2002, and in the plaint though the
plaintiff stated that at the time of oral agreement, she,
the defendant No.1, one Sabbir Zaman, Habibur Rahman and
Nurul Islam were present but to prove her statement made in
the plaint in respect of this oral agreement, the plaintiff
herself did not depose as witness in the suit and her
daughter deposed on her behalf, the attorney was not a party
to the agreement and also not present at the time of
agreement as such, she was incompetent to depose in the suit
and her evidence was inadmissible, which was not considered
by the High Court Division.
Mr. Chowdhury further submits that an agreement for
sale contains some terms and condition as to the
consideration money, time of payment of consideration money,
time to execution of transfer deed etc. but neither the
plaintiff nor the witnesses could make detail statement in
respect of all their terms and condition and as such the
plaintiff failed to prove that there was any oral agreement
for sale of the flat and the High Court Division failed to
consider this aspect of the matter.
The defendant No.1 published notice about letting the
flat in the Daily Ittefaq dated 12.04.2002 on taking such
information about the rent, the plaintiff took rent of the
flat from the defendant No.1 and, thereafter, she paid 8
monthly rent and utility bills as a tenant on behalf of the
defendant No.1 but ultimately he did not pay rent though she
has enjoying the flat as tenant and, thereafter, the
defendant No.1 had to lodge G.D. No.1953 dated 27.10.2003
but this fact was not considered by the High Court Division.
Mr. Chowdhury also submits that the oral agreement is
to be proved very strictly but in the instant case, the
plaintiff having failed to appear to depose in the Court to
prove the plaint and the P.W-2 deviated from the statement
made in the plaint, similarly the P.W-4 also deviated from
the plaint case of oral agreement and case of part
performance, the P.W-4 gave altogether a different statement
deviating from the plaint, P.W-5 did not support the
plaintiff’s case but the High Court Division altogether
failed to consider this deviations of the P.Ws from the
plaint story and thus erred in law in holding that there was
an existence of the oral agreement between the plaintiff and
the defendant No.1 in respect of sale of the flat in
question.
It was further argued by the learned Advocate for the
petitioner that under section 53A of the Transfer of
Property Act the party asserting part performance of
contract must prove the existence of a contract in writing
but there is no such written agreement and as such the
plaintiff does not have any right of protection under
section 53A of the Transfer of Property Act and since the
plaintiff failed to prove the contract with reasonable
certainty about its terms of the contract even if presumed
(not admitted) to be in existence, the same cannot be
enforced and as such the suit was liable to be dismissed and 9
the Trial Court rightly dismissed the same but the High
Court Division erred in law in decreeing the suit which is
ex-face not tenable in law and liable to be set aside.
Mr. Chowdhury lastly submits that P.W-1 is the daughter
of the plaintiff, P.W-2 is the son-in-law of the plaintiff,
P.W-3 is also nephew of the plaintiff and the P.W-4 is the
husband of the plaintiff and all of them are interested
witnesses, on the other hand P.W-5 did not support the
plaintiff’s case and, as such, there was no neutral witness
in favour of the plaintiff but the Court of appeal below,
the final Court of facts, did not consider this vital aspect
when deciding a suit for specific performance of contract
based on oral agreement and as such the impugned judgment
and decree is liable to be set aside.
On the other hand, Mr. Saifur Rashid, learned Advocate
for the respondent made submissions in support of the
judgment and decree passed by the High Court Division.
We have heard the learned Advocates for the respective
parties, perused the judgment of the trial Court as well as
the same of the High Court Division and other materials as
placed before us.
In the instant case, the plaintiff has sought relief of
specific performance of contract on the basis of an oral
agreement. It is well settled principle of law that such
type of oral agreement has to be looked at with some
suspicion unless it is proved by reliable evidence. In the
case of Moslemuddin (Md) and others vs. Md. Jonab Ali and another,
reported in 50 DLR (AD) 13, it has been held that: “We should
observed here that so far as the oral agreement is concerned it should always be very 10
closely scrutinized and taken with a grain of salt. Although oral agreement is not barred by
any law it has to be looked at with some suspicion unless proved by very reliable evidence
and circumstances. In Ouseph Varghese vs. Joseph Aley, (1969) 2 SCWR 347 the
Supreme Court of India discouraged a decree for specific performance of contract on the
basis of an agreement supported solely by oral evidence.”
In the case of Government of Bangladesh vs. Mrs. Noorjahan Khan
and others, reported in 2000(VIII)BLT(AD), this Division held that
in a suit for specific performance of contract the
genuineness of the agreement of sale is the prime
consideration.
In order to decree a suit for specific performance of
contract the plaintiff must prove that there was a concluded
contract between himself and the defendant. Where there is
no concluded contract there will be no enforcement
[Reference: Nur Mohammad and Co. Ltd vs. Bangladesh, 61 DLR (AD)77; H.N.
Babrics Ltd. vs. Mallick Textile Industries, 1985 BLD (AD) 271].
Upon perusal of the evidence on record, it is very
difficult for us to come into a definite conclusion that the
alleged oral agreement between the plaintiff and the
defendant was/is a concluded contract.
In the instant case it appears from the impugned
judgment that the High Court Division itself has determined
the price of the suit flat as Tk.36,00,000/-(Thirty lac) and
directed to pay the rest amount Tk. 24,00,000/- (twenty four
lac) to the defendant No.1 with a direction to the defendant
No.1 to execute the sale deed of the disputed apartment in
the next 30 days. Failing which the plaintiff is at liberty
to initiate proceeding in accordance with law. 11
The above finding of the High Court Division proves
that the alleged oral agreement, even if taken to be true,
was not a concluded contract and the High Court Division
exceeded its jurisdiction in determining the value/price of
the flat in question sitting in the Court of Appeal.
In a suit for specific performance of contract, neither
the trial Court nor the appellate Court has any
jurisdiction/authority to determine the price of suit
property afresh, exercising its judicial power ignoring the
terms of contract. Court cannot re-fix the consideration,
i.e. the value of the suit property and go beyond the terms
of the contract, and it cannot impose or add any term(s) in
the contract.
In the instant case the High Court Division most
erroneously itself re-fix the value of the suit flat, i.e.
the consideration and decreed the suit.
The trial Court relying on section 21 (b) of the
Specific Relief Act, 1877 has observed:
""GgZve¯’vq, evw`bx I 1 bs weev`xc‡ÿi g‡a¨ bvwjkx d¬vUwU weµ‡qi wel‡q
GKwU †gŠwLK Pzw³ m¤úv`b nIqvi welqwU cÖgvwYZ nB‡jI D³ Pzw³i g~j kZ©vejx
wbf©i‡hvM¨ cªgvwYZ bv nIqvq ev`xc‡ÿi `vexK…Z †gŠwLK Pzw³wU AvBbZ: eje`‡hvM¨
b‡n ewjqv Avwg g‡b Kwi| 3 bs wePvh¨ welqwU †mB g‡Z evw`bx c‡ÿi cªwZKz‡j
wb®úwË Kiv nBj|Ó
However, the High Court Division without adverting to
the said finding with reference to evidence on record passed
the impugned judgement and decree and thus, committed
serious error of law.
In the case of Kamrunnessa vs. Abul Kashem, reported in 2
MLR (AD) 220, it has been held that the discretionary relief
of decreeing specific performance depends on two cardinal 12
principle-(i)the plaintiff must prove the execution of the
deed of agreement and (ii) passing of consideration. In
the case of Kaniz Fanema vs. Bangladesh, reported in 6 MLR (AD) 203,
this Division held that where the genuineness of an
agreement is not established the suit for specific
performance cannot succeed.
In the instant case, the defendant categorically
asserted that the flat in question along with the other
flats of the suit plot was given mortgage to the Bank. But,
the bank has not been made a party in the suit. In the case
of Sooraya Rahman vs. Hajee Md. Elias, reported in 8 BLC (AD) 7, this
Division affirmed the findings of the High Court Division
that in a suit for specific performance of contract the
defendant No. 1 was a lessee for 99 years and the property
belonged to RAJUK. There was a provision in the lease deed
that permission from RAJUK would be necessary for transfer
of the property. Permission was obtained on 10.03.1973 which
was cancelled subsequently on 21.10.1974. RAJUK was not a
party in the suit, thus suit to be bad for defect of party
holding RAJUK is a necessary party thereto.
In the instant suit the mortgagee Islami Bank, Uttara
Branch is a necessary party, but the plaintiff did not make
it party, though the defendant in his written statement
categorically made statements to that effect. Thus, the suit
is bad for defect of party.
Having considered and discussed as above, we are of the
opinion that the High Court Division committed serious error
of law in passing the impugned judgment and decree decreeing
the suit for specific performance of contract on the basis 13
of an oral agreement which was not proved by the plaintiff
in accordance with law and on reliable evidence.
Since we have heard the learned Advocates for the
respective parties, we are inclined to dispose of the civil
petition for leave to appeal without granting any leave to
avoid further delay to dispose of the case.
Accordingly, Civil Petition No. 494 of 2018 is disposed
of. The impugned judgment and decree passed by the High
Court Division is hereby set aside.
However, the defendant-petitioner is directed to return
taka 12(twelve) lakh to the plaintiff within a period of 30
(thirty) days from the date of receipt of this judgment and
order. Since 2002, the plaintiff has been enjoying the flat
in question without paying any rent to the appeal, thus we
refrain to give any solitium to the plaintiff.
Civil Petition for Leave to Appeal No. 495 of 2018 is
disposed of in the light of the above judgment.
J.
J.
J.
B.S./B.R./*Words-3,534*
|
1
IN THE SUPREME COURT OF BANGLADESH Appellate Division
PRESENT
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Md. Shahinur Islam
CIVIL APPEAL NO.149 OF 2023
(From the judgment and order dated 02.03.2023 passed by the
Company Bench of the High Court Division in Company Matter No.483
of 2022)
Tabassum Kaiser : ....Appellant
=Versus=
Partex Cables Limited,
represented by its Managing
Director and others
: ...Respondents
For the Appellant : Mr. Probir Neogi, Senior Advocate
with Ms. Nihad Kabir, Senior
Advocate with Mr. Md.
Asaduzzaman, Senior Advocate with
Mr. Md. Anisul Haque and Mr.
Subrata Chowdhury, Advocates,
instructed by Mr. Md. Taufique
Hossain,
Advocate-on-Record
For Respondent Nos.1-2 : Mr. A. M. Aminuddin, Senior
Advocate with Mr. Tanjib-ul Alam,
Senior Advocate and
Mr. Md. Mostafizur Rahman Khan,
Advocate, instructed by Mr. Md.
Helal Amin, Advocate-on-Record
For Respondent
Nos.3,4,7,8&10 : Mr. A. M. Aminuddin, Senior
Advocate with Mr. Tangib-ul Alam,
Senior Advocate and
Mr. Md. Mostafizur Rahman Khan,
Advocate, instructed by Mrs.
Madhumalati Chowdhury Barua,
Advocate-on-Record
Respondent NOs.5,6,9 &11-13 :
:
Not represented
Date of hearing : The 2nd & 3rd day of July, 2024
Date of judgment : The 31st day of July, 2023
JUDGMENT
M. Enayetur Rahim, J: The civil appeal, by leave, is directed
against the judgment and order dated 02.03.2023 passed by the
Company Bench of the High Court Division dismissing Company
Matter No.483 of 2022. 2
The case of the appellant is that respondent No.01-company
was incorporated on 18.09.2013 as a private limited company under
the Companies Act, 1994 [hereinafter referred to as the Act
1994], having registration No.C-111384 and involved in the
business as manufacturer of building wiring cables and power
cables in Bangladesh with initial authorized share capital of
taka 10,00,00,000/- (ten crore), divided into 10,00,000 (ten
lac) ordinary shares of taka 100 each wherein initial promoters
were Aziz Al Kaiser, respondent No.2 held 25,500 shares and Aziz
Al Mahmood [ex-shareholder and ex-director of respondent No.01-
Company] held 4,500 shares. Said Aziz Al Mahmood transferred his
entire shares being 4,500 shares of the company to respondent
No.02 and the present appellant, and resigned from his post as
Director of respondent No.01-Company on 25.12.2017. After the
said transfer of shares by said Aziz Al Mahmood, respondent No.02
held 27,000 shares and the present appellant held 3,000 shares of
respondent No.01-Company. Pursuant to the said transfer of shares
by said Aziz Al Mahmood, the appellant became a Director of
respondent No.01-Company and the ratio of shareholding structure
of respondent No.01-Company was 90:10, i.e. respondent No.02 held
90% of the shares and the present appellant held 10% shares. The
present appellant recently came to know that respondent No.01, in
connivance with respondent No.02, allegedly allotted a total
number of 8,97,00,000 shares on 30.03.2022, 28.04.2022,
23.05.2022 and 23.06.2022 in favour of others, including various
sister concern companies of respondent No.01-Company named Aziz
Al Kaiser (respondent No.02) held 1,89,00,000 (Bonus shares).
Tabassum Kaiser (appellant) held 21,00,000 (Bonus shares). Star
Particle Board Mills Limited held 1,95,25,000 (ordinary shares).
Partex Furniture Industries Limited held 32,45,000 (ordinary
shares). Softavion Limited held 18,00,000 (ordinary shares), Lava
Electrodes Industries Limited held 70,00,000 (ordinary shares). 3
Partex Laminates Limited held 2,15,20,000 (ordinary shares). Star
Gypsum Board Mills Ltd held 39,00,000 (ordinary shares). CBC
Capital & Equity Management Limited held 90,00,000 (ordinary
shares). Triple Apparels Limited held 25,10,000 (ordinary
shares). Oishee Agrotech Limited held 200,000 (ordinary shares)
totalling 8,97,00,000. The appellant was absolutely in the dark
about when and how the aforementioned allotments were made by
respondent No.01-Company as the appellant never attended any
Board of Directors Meeting or shareholders meeting of the company
where the aforementioned allotment issues were discusse. The
appellant recently came to know that respondent No.02 is planning
to oust the appellant from the Board of Directors of respondent
No.01-Company and is secretly taking steps in this regard. The
appellant carried out a search within the records of the RJSC and
came to know that respondent Nos.01 and 02 along with other
respondents, in connivance with each other, have filed as many as
4 sets of Form-XV Return of Allotment dated 30.03.2022,
28.04.2022, 23.05.2022 and 23.06.2022 allotting a total
8,97,00,000 shares of the company to respondent Nos.02-11 and the
appellant. As a result of the said illegal allotment, the
shareholding percentage of the appellant within respondent No.01
has been diluted to 2.34% from 10%, which effectively means that
her shares within the company has been illegally brought under
the statutory threshold of 10% shares, which is required to take
certain actions as a minority shareholder. The appellant further
came to know that respondent No.02, in connivance with respondent
Nos.03, 04, 07, 08 and 10, purportedly held an illegal Extra-
ordinary General Meeting (EGM) of respondent No.01-Company on
01.06.2022 wherein they took decision to convert respondent
No.01-Company into a public limited company and also amended the
articles of association of the company. On perusal of the said
minutes of the EGM dated 01.06.2022 from the office of respondent 4
No.13 and it transpires that the appellant has been shown as an
attendee in the said meeting and in the Signature Box beside her
name '-Sd-' has been shown but she never attended the said EGM
dated 01.06.2022 and signed the minutes. The appellant is
apprehending that her signature has been forged by respondent
No.02 in connivance with the other respondents. In the said
purported AGM, the authorized share capital of the company has
been increased to taka 20,00,000,000/- (Taka two hundred crore)
divided into 20,00,00,000 (twenty crore) ordinary shares of taka
10 each. Thereafter, the appellant attended a meeting dated
08.08.2022 with respondent No.02 at the office of respondent
No.01 and in that meeting, the appellant vehemently raised
objection to the alleged allotment of shares in favour of
respondent Nos.02-11 and also requested respondent No.02 to
immediately dissolve the illegally constituted board with the so-
called newly appointed Directors and also requested the company
secretary of respondent No.01 to note down the objections and
dissents in the minutes of the meeting. Thereafter, the appellant
sent an email dated 14.08.2022 to the company Secretary of
respondent No.01 and respondent No.02 mentioning her complaints
and dissents whereupon the appellant received an email dated
03.11.2022 from the company Secretary with draft minutes of the
meeting dated 08.08.2022. The appellant was completely taken
aback upon checking the contents of the draft minutes of the
meeting dated 08.08.2022 as none of her objections and dissents
were recorded therein. The purported increase of shares and
allotment of the same beyond the participation and knowledge of
the appellant which is in violation of 155 of the Act, 1994, and
as such, the share register is required to be rectified.
Respondent No.01 by filing affidavit-in-opposition stated
that at the time of incorporation of respondent No.01-company, 5
the authorized share capital was taka 10,00,00,000 (ten crore),
divided into 10,00,000 (ten lac) ordinary shares of taka 100
each. The promoters of respondent No.01-company named Aziz Al
Kaiser, respondent No.02 and Aziz Al Mahmood (brother of
respondent No.02) held 25,000 and 4,500 shares respectively in
the company. In December, 2017, Aziz Al Mahmood executed Form-117
and affidavit to transfer his entire shareholding to his brother,
respondent No.02, Aziz Al Kaiser. Among those 4,500 shares, 3,000
ordinary shares were gifted to the appellant by respondent No.02
without any consideration, pursuant to which, the appellant
became the owner of 10% of the total shareholding in respondent
No.1-company. The appellant and respondent No.02 are husband and
wife having married in 1993 and have three sons of whom two are
adults and present Directors of the Board of respondent No.01-
Company, representing respondent Nos.03 and 04 companies.
Respondent Nos.03, 04, 07, 08 and 10 are sister concerns of
respondent No.01-Company belonging to the renowned Partex Star
Group of Companies, which represents the legacy of late M. A.
Hashem. The companies of this group, including respondent Nos.03,
04, 07, 08 and 10, have common shareholders who are family
members, including the appellant and respondent Nos.02. In fact,
the shares were transferred to the appellant for holding the same
on trust for the benefit of respondent No.02, and eventually for
the children of the appellant and respondent No.02. In order to
establish and run respondent No.01-Company profitably and to meet
the insufficiency of capital, both the shareholders of respondent
No.01-Company mutually decided to obtain intercompany loans from
other companies of the Partex Star Group based on the
understanding that eventually these loans would be converted into
equity. As on 30.06.2021, the total outstanding intercompany loan
of respondent No.01-Company was taka 45,96,50,000/-. With the
loans obtained as aforesaid, respondent No.01-Company established 6
its factory in Madanpur, Bandar, Narayanganj upon purchase of
around 5 acres of land which currently have approximately 700
employees. As such, considering the current state of affairs of
respondent No.01, the company owes its existence to the
intercompany loans of the group companies. In the course of
business, in order to expand respondent No.01-company's business
and pursue its objectives in a more efficient and productive
manner, both the shareholders mutually decided to raise capital
through an Initial Public Offering (IPO) of shares in the stock
market upon converting respondent No.01-Company into a public
company limited by shares. One of the preconditions for obtaining
approval from the Bangladesh Securities and Exchange Commission
(SEC) for listing is that the company seeking to make an IPO must
be a public company limited by shares which requires minimum 7
shareholders in view of the provisions of section 5 read with
section 2(1) (r) of the Companies Act, 1994. Hence, the existing
shareholders decided to convert the intercompany loans into
equity as per their initial understanding at the time of
obtaining these loans. Accordingly, following all formalities,
the abovementioned intercompany loans were converted into equity
by issuing, 50,70,000 ordinary shares to the creditor companies
which are linked to the Partex Star Group with full consent of
the appellant.
In addition to the above, a further 18,000,000 ordinary
shares were decided to be issued to four other companies that are
not linked to the said group as placement. Due to such issuance
and allocation of shares to the creditor companies, the
shareholding percentage of both the appellant and respondent
No.02 have diluted in a proportionate manner. Being a Director of
respondent No.01-company, the appellant attended a board meeting
held on 08.08.2022 where the company passed, among others, a 7
resolution for raising fund through initial public offering under
fixed price method. In the said board meeting, the other
Directors from the shareholder-companies as well as the
Independent Director were present. In fact, Amman Al Aziz,
nominee Director of a shareholder company was appointed the new
Chairman for respondent No.01-Company in the said board meeting.
The appellant did not raise any concerns or reservation on the
shares issued to these creditor companies or their presence in
the board meeting or the appointment of the Chairman from the
other shareholder company in the said board meeting, which
clearly shows that the appellant was well aware of the fact that
the company has issued shares to these companies with her full
consent and that the company has been converted into a public
limited company and for which IPO process is going on for raising
fund through capital injection but the appellant completely
suppressed these material facts in the petition. After the
decision in the board meeting dated 08.08.2022 for raising
capital of the IPO, a set of standard documents, e.g.
declarations and other forms were sent to the appellant for
signing onward submission and to take other necessary steps for
raising capital through IPO and also an email was sent by the
company Secretary by reference to the board meeting decision
dated 08.08.2022 requesting her to sign the documents within
26.10.2022 for onward submission of the draft prospectus to the
SEC but the appellant did not sign the documents for which
respondent No.01-company could not file the draft prospectus to
the BSEC resulting in delay in the raising capital through IPO.
This development had been notified to her by the company
Secretary by an email dated 30.10.2022. Due to such negligence
and mala fide action of the appellant, respondent No.1-Company
suffered loss. Accordingly, respondent No.01 Company by a letter
dated 08.11.2022 demanded compensation for the losses caused to 8
the company due to the appellant's actions but instead of taking
responsibility of her actions, the appellant sent a letter dated
15.11.2022 denying her responsibilities and rather blamed the
management and the officials of the company for no plausible
reasons. Nowhere in the said letter, she denied attending the
meeting on 08.08.2022 or dilution of her shareholding or presence
of the other Directors nominated by other shareholders or
appointment of the Chairman from a shareholder company or the
company's decision to raise capital through IPO. As such, it is
well established that the appellant was well aware of the fact
that the company has issued shares to other shareholders and new
Directors have been appointed and that the company has been
converted into a public limited company. Respondent No.01-Company
for the purpose of IPO made an application date 08.08.2022 to the
SEC praying for an exemption from complying with rule 3(2)(p) of
the Bangladesh Securities and Exchange Commission (Public Issue)
Rules, 2015 and upon assessment of the application, audit report
of respondent No.01-company as well as other relevant documents,
the SEC granted respondent No.01-company exemption. The appellant
and respondent No.02 married each other on 26.08.1993. Respondent
No.02 transferred his shares to the appellant as a token of love
to his wife without any consideration of whatever nature based on
the understanding that those shares would be held on trust for
their children. The appellant was merely enjoying the social
status deriving from being a shareholder and Director in Partex
Group Companies as wife of respondent No.02. However, after 27
years of happy marital life, for the last 2-3 years, the
appellant involved herself into an extra-marital affair with a
foreigner. Upon discovery with sufficient proof, respondent No.02
along with their sons confronted the appellant, which was the
first breakdown point in their relationship. While respondent
No.02 was putting efforts for reconciliation for the sake of 9
their children, the appellant suddenly started to claim for 50%
of the total assets of respondent No.02. As part of the
disgraceful and reprehensible plan, the appellant has filed as
many as 4(four) criminal cases against respondent No.02 based on
unfathomable allegations only to damage the social status of
respondent No.02 and the Partex Star Group resulting in mounting
pressure on respondent No.02 to make more gifts to her estranged
wife, i.e. the appellant and as such, the instant application is
liable to be dismissed.
Respondent Nos.03, 04, 07, 08 and 10 in their affidavit-in-
opposition stated that following the disputed allotments, the new
shareholders of respondent No.01-Company appointed new Directors
on the Board. The appellant as Director participated in a Board
Meeting on 08.08.2022, in which the Board took decision to raise
capital through an Initial Public Offering (IPO) upon application
for approval to Bangladesh Securities and Exchange Commission
(BSEC). The appellant never objected to this decision. Though in
an affidavit-in-reply, she has referred to an email of 14.08.2022
objecting to certain of the proceedings of the meeting of
08.08.2022, she did not object crucially to the decision to raise
capital through the IPO which means that she had no objection to
respondent No.01-Company being converted to a public Company
through allotment of shares to additional shareholders, and
accordingly, is now barred by the doctrine of waiver,
acquiescence and estoppel from objecting to the allotment of the
shares. Subsequently, the appellant refused to sign formal
documents required for making the application to BSEC for
approval. When the Chairman of the company took issue then the
appellant by a letter dated 15.11.2022 complained about the delay
in providing her with the documents, but she did not object to
the decision to raise capital through the IPO and as such, she is 10
barred by the doctrine of waiver, acquiescence and estoppel from
objecting to the allotment of the shares. The shares have been
allotted to respondent Nos.03, 04, 07, 08 and 10 through
conversion of loans provided by these companies to respondent
No.01. These loans are documented and borne by the accounts of
the said companies and banking transactions. Hence, there is no
dispute about the fact that respondent No.01 has in fact received
consideration for the shares. The appellant is a shareholder and
Director in all of these companies and there is no record of her
having objected with any of these companies about them having
subscribed to these shares. In the event, the petition is
allowed, and rectification as prayed for is effected respondent
No.01-Company would revert to a shareholding structure where
respondent No.02 would have 90% of the shares while the appellant
10% and the appellant will never be in a position to object to
the raising of capital through issue of shares. All that she will
achieve, is effecting a pre-emptive right to take up any or all
of these shares. Yet, in the instant application, she is not
offering to take up any or all of the shares allotted to the new
shareholders. It is stated that where an applicant seeks
rectification of the share register against an allotment of
shares made for good consideration at the instance of the
majority shareholders of a company upon a plea that the
applicant's pre-emptive rights have not been accorded due
respect, it is incumbent upon such applicant to offer to take up
any or all of those shares upon paying off the shareholders whose
shares are being affected by the rectification which has not been
done.
The High Court Division having heard the parties and on
perusal of the materials on record dismissed Company Matter
No.483 of 2022 by the judgment and order dated 02.03.2023. 11
Being aggrieved by and dissatisfied with the aforesaid
judgment and order dated 02.03.2023, the petitioner of the
company matter filed the Civil Petition for Leave to Appeal No.
1404 of 2023 before this Division. Accordingly, leave was granted
on 20.08.2023. Hence, the appeal.
Mr. Probir Neogi, learned Senior Advocate, Ms. Nihad Kabir,
learned Senior Advocate and Mr. Md. Asaduzzaman, learned Senior
Advocate have appeared for the appellant.
Their submissions are as follows:
i) The High Court Division has committed
illegality by passing the impugned judgment and order
without at all taking into consideration the strict
requirements of section 155 of the Act, 1994, inasmuch
as the alleged allotment of shares by the respondents
without complying with the requirements of section 155
of the Act, 1994 is absolutely unlawful, thus rendering
the purported issuance and allotment of the shares in
question ipso facto illegal and void ab initio;
ii) the High Court Division most erroneously
dismissed the company matter on the basis of some
alleged activities of the appellant, such as,
attendance at a meeting dated 08.08.2022 and subsequent
letter dated 15.11.2022 to respondent No.1, without
even taking into consideration that mere attendance in
the so-called Directors' Meeting dated 08.08.2022 of
respondent No.1 and the subsequent letter dated
15.11.2022 by the appellant, both after the fact of the
illegality having been committed by the respondents,
cannot tantamount to waiver/acquiescence of her
statutory right to get notice of board meeting and
participate in the decision of "existing directors" to
be made for the issuance of further shares under 12
section 155 of the Act, 1994, and cannot mitigate in
any way the failure to comply with the law in section
155 of the Companies Act, 1994;
iii) the High Court Division has committed
illegality in passing the impugned judgment and order
overlooking the ratios settled by this Division in the
case of Jamuna Television Ltd. and another-Vs-Government of Bangladesh
and others (reported in 65 DLR (AD) 253) to the effect, amongst
others, that- (i) there is no estoppel against statute
or there is no application of estoppel to prevent the
performance of any constitutional or statutory duty
(Para 28); (ii) the doctrine of promissory estoppel
cannot be invoked against public interest or any
stature. The public interest prevails over promissory
estoppel (Para 29); and (iii) the doctrine of
promissory estoppel cannot be invoked to carry out a
representation which is contrary to law or in the
abstract (Para 32), and therefore the impugned judgment
and order seriously suffers from illegality and
infirmity;
iv) the High Court Division has committed
illegality in not appreciating that new allotments were
done illegally and with ill-motive to harm and
prejudice the interests of the Appellant, who is a
minority shareholder in the Respondent No. 1 Company
and this is a classic case of severe oppression of a
minority shareholder of the Company and an unlawful act
by the Respondent No. 1 Company and Respondent No. 2 to
illegally bring the Company absolutely under their
control and the Appellant fears that this is an attempt
to ultimately remove the Appellant from the Respondent 13
No.1 Company and deprive her of her rights as a
shareholder and director of the said Company. The
appellant was never notified of the directors'/
shareholders' meetings where the resolutions for the
purported issue/allotment of further shares were
passed, never attended those so-called purported
meetings, which could not be held with a quorum in her
absence in any way as she was one of only two
directors/shareholders of the Respondent No.1 Company
at all material times, and as such, these meetings have
not been held in compliance with the articles of
association of the company but without taking into
consideration any of the factors mentioned above, the
High Court Division has passed the impugned judgment;
v)the High Court Division has failed to appreciate
that the purported allotment of shares in Respondent
No, 1 Company in the name of respondents No. 3 to 11
are ex-facie in violation of the provisions set forth
in the Articles of Association of the respondent No. 1
Company, which is the constituent document of a
company, and binding on the Company and its Directors;
vi) the purported allotment of shares, pursuant to
which the shareholding status of the appellant was
diluted from 10% to 2.34%, were done illegally and with
ill-motive to discriminate against and prejudice the
interests of the appellant, who is a minority
shareholder in respondent No.1-Company and is an
attempt by respondent No.1-Company and respondent No.2
to bring the Company absolutely under their control and
to ultimately remove the appellant from the Company and
by passing the impugned judgment and order of the High 14
Court Division has rubberstamped the illegal activities
of the respondents and as such, the impugned judgment
and order is bad in law and is liable to be set aside.
Per contra Mr. A.M. Amin Uddin, learned Senior Advocate,Mr.
Tanjibul Alam, learned Senior Advocate, Mr. Md. Mostafizur Rahman
Khan, learned Senior Advocate have appeared for Respondent Nos.
1-4, 7-8 and 10.
The main contention of the learned Advocates for the
respondents are as follows:
i) It is an established principle of law that the
Court can, in an appropriate case, decline to exercise
its discretionary power under Section 43 of the
Companies Act, 1994 if it finds that the applicant has
disentitled herself of the relief due to suppression of
material facts, acquiescence, waiver, delay or laches
etc. As such, the relief under section 43 of the
Companies Act, 1994 is not ex debito justitiae and equitable in
nature. Hence, even if for the sake of argument, a
technicality with respect to the compliance of section
155(1) of the Companies Act, 1994 is established,
considerations such as waiver, acquiescence, estoppel
etc. would be relevant while granting or refusing the
same as has been rightly identified by the High Court
in the present case.
In this connection the case of Mukundlal Manchanda v
Prakash Roadlines Limited (ILR 1994 Karnataka 1990; Bellesby v Rowland and
Marwood's Steamship Co. Ltd. 2 Ch. 265; Muniyamma v Arathi Line Enterprise
PV Limited has been referred.
ii) upon participating in the board meeting dated
08.08.2022 along with other directors from the newly 15
subscribed shareholder companies and by consenting to
go in the IPO event, the appellant had, in effect,
acted upon the impugned subscriptions in question. All
the facts of the case, as has been taken into
consideration in detail in the impugned judgment,
not only show acquiescence on the bringing about the
situation which she sought to have altered by means of
proceeding under section 43 of the Companies Act, 1994.
As such, the High Court Division has rightly declined
to exercise its powers under the said provision of law
as the appellant before it had already disentitled
herself of the said relief;
iii) there is no estoppel against statute or there
is no application of estoppel to prevent the
performance of a constitutional or statutory duty as
settled by this Division in the case reported in 65 DLR
(AD) 253 and as such there is no scope to rely on this
ratio by taking it out of context to assert that such
would be applicable in the present case. In any event,
the doctrine of waiver, acquiescence and estoppel in
the present case does not operate against the
application of Section 155(1) of the Companies Act,
1994, rather prevents the appellant from insisting upon
her rights granted by the said provision of law;
iv) the contentions of the appellant that her
shares were diluted from 10% to 2.34% with an ill-
motive to discriminate against and prejudice her
interests are completely baseless and misconceived, in
fact, the Appellant was well aware that the respondent
No. 1 company had taken loans from other companies of
the Partex Star Group for its survival and that such 16
loans would converted into equity eventually; thus the
dilution complained of is the direct result of the
conversion of the said loans into equity;
v) the appellant is asserting her preemptive
rights under section 155(1) of the Companies Act, 1994,
till date, she has never offered to take up of the
shares allotted to the proportion of her shareholding;
which makes it clear that this appeal has been filed
with the sole motive to halt the progress of the
respondent No. 1 company in raising capital through
IPO, for collateral purpose of holding the respondent
No. 1;
vi)the appellant concealed material facts relating
to her participation in the meeting dated 08.08.2022
along with other shareholders whose subscription she is
challenging, her acting upon the impugned subscription
in question, her consent for the respondent No. 1
company to go to IPO knowing fully well that the
disputed subscriptions actually took place to
facilitate the company going into IPO, the respondent
No. 1 company's claim for compensation for her failure
to sign documents and her response to the company's
claims by shifting the burden on the management of the
company without denying her prior given consent for IPO
or raising any objection to the allotted shares at any
point in time prior to filing the application; hence,
the appellant is not entitled to get any relief from
this Court, as the relief under section 43 of the
Companies Act, 1994 is equitable in nature;
vii) the appellant had the right to participate in
the disputed issuance of shares only to the proportion 17
of her shareholding, i.e., 10% by paying consideration
at face value, and that although the appellant is
asserting her preemptive right to be offered the
allotted shares she has till date, never offered to
take up any of the shares, and the present Appeal is
her attempt to belie the respondent No.l's attempt to
raise its capital, for collateral purposes and
existence of such collateral purposes has been
established to the satisfaction of the High Court
Division and no evidence has been adduced by the
appellant in the instant proceeding to rebut such
conclusion;
viii) it is not disputed that immediately prior to
the first disputed allotments, the appellant held only
10% of the issued shares of the respondent No. 1
Company, with the respondent No. 2, as the only other
shareholder, leaving 90% of the shares, the legal
significance of which is two-fold, being first, the
appellant, as a minority, was lever in a position to
resist a decision for further allotment of shares, or
resist conversion of the company to a public company,
which acts, in themselves, are not unlawful, and
secondly, all that would have been attained had the
required formalities been adhered to, which she does
not admit, is that she would have a pre-emptive right
to take up 10% of the allotted shares upon payment of
subscription.
We have considered the submissions of the learned Advocates
appearing for the parties concerned, perused the impugned
judgment and order of the High Court Division and other materials
as placed before us on record. 18
In the instant appeal, the appellant has tried to assail the
impugned judgment mainly on the ground that:
(i) the appellant was not aware of the allotment of
shares to the respondent Nos. 3-11;
(ii) the respondent No. 2 is planning to oust the
appellant from the management of the respondent No 1 company
and is secretly taking steps in this regard;
(iii) the appellant was not provided with the minutes
of the meetings of the respondent No. 1 company;
(iv) the shares allotted to the respondent Nos.3-11
were not first offered to the appellant in violation of the
section 155 of the Companies Act, 1994;
(v) the appellant was never aware of any of the
meetings for issuance of further shares or increase of
shares or allotment of shares to the respondent Nos. 3-11.
Based on the above arguments and allegations, the petitioner
asserts that the names of the respondent Nos. 3-11 have been
entered into the register of members of the respondent No.1
Company illegally and in violations of the provisions of the
Companies Act, 1994, as such, according to the appellant,
the register of members of the respondent No. 1 Company is
required to be rectified upon deleting/omitting their names
from the register of members.
Upon perusal of the impugned judgment and order, it
transpires that the High Court Division addressed and decided all
the above issues having considered materials on record as well
the relevant law and principle law enunciated in different cases.
The High Court Division having considered the provision of
section 155 of the Companies Act, 1994 coupled with the facts and
circumstances of the present case has held that:-
“But in the instant case it is already found that
transfer of shares has been affected within knowledge 19
of the petitioner and with her concurrence and hence,
155 (2) of the Companies Act, 1994 will be applicable
and above quoted decisions (34 BLD, 91, in the case of
Md. Shirajul Haque vs Apollo Ispat complex Limited) has no relevance
here.”
It is fairly established that the relief under
section 43 of the Companies Act, 1994 is not ex debito
justitiae, rather the said relief is equitable in
character and as the petitioner did not disclose all
the materials facts, she is not entitled to get relief
in the instant matter.”
We have no hesitation to hold that the above findings of the
High Court Division are based on sound principle of law. Section
155 of the Companies Act, 1994 runs as follows:
“155. Further Issue of capital.—(1) Where the directors decided to
increase the subscribed capital of the company by issue of further shares within
the limit of the authorised capital—
(a) such further shares shall be offered to the members in proportion, as
nearly as circumstances admit, to the capital paid up on the existing
share held by such member, irrespective of class, at the date of the
offer;
(b) such offer shall be made by notice specifying the number of shard
offered and specifying the time limit, not being less than fifteen days
from the date of the offer, within which the offer if not accepted, will
be deemed to have been declined;
(c) after the expiry of the time specified in the notice aforesaid, or on
receipt of earlier intimation from the members to whom such notice
is given that he declines to accept the shares offered, the directors
may dispose of the same in such manner as they may think most
beneficial to the company.
(2) Notwithstanding anything contained in sub-section (1), the further shares
aforesaid may be offered to any person whether or not those person include its
person referred to in clause (a) of that sub-section in manner whatsoever.”
If we read meticulously, the above provision of law then it
will be clear that in view of the provision of subsection (2), 20
the provision of subsection (1) of section 155 of the Companies
Act cannot be said Sine Qua Non.
It is an established principle of law that the Court can, in
an appropriate case, decline to exercise its discretionary power
under Section 43 of the Companies Act, 1994 if it finds that the
appellant before it has disentitled herself of the relief for any
reason like suppression of material facts, acquiescence, waiver,
delay or laches etc. The section in the Indian Companies Act
corresponding to section 43 of the Companies Act, 1994 is section
155. In the case Mukundlal Manchanda v Prakash Roadlines Limited (ILR 1994
Karnataka 1990), the High Court of Karnataka, India on a very
identical scenario held in paragraph 16, "A plain reading of the provisions
reproduced above shows that the same vests the Court with the power to direct rectification, the
exercise of which power is discretionary with the Court as is apparent from the word 'may' used
in this Section. The Court can in an appropriate case decline to exercise its powers under
Section 155 if it finds that the petitioner before it has disentitled himself of the said relief for any
reason like suppression of material facts, acquiescence, delay and laches etc. Relief envisaged by
Section 155 is equitable in nature, and all such considerations as are relevant to the grant or
refusal of any such relief would be attracted to proceedings under the said provision.”
In the case Bellesby v Rowland and Marwood's Steamship Co. Ltd. 2 Ch. 265
(quoted in paragraph No. 18 of the Mukundlal Manchanda judgment
referred above), it was held, "In considering an application for rectification the
Court has always had regard to the lapse of time and to any facts and circumstances indicating
acquiescence in the existing state of things by those on whose behalf the application is made to
disturb it.". In another case Muniyamma v Arathi Line Enterprise PV Limited
(quoted in paragraph No. 19 of the Mukundlal Manchanda judgment
referred above), it was held, "...Whether in a particular case relief should be
granted or not, because the jurisdiction is discretionary as the word used is 'may' in Section 155
of the Act would depend upon the facts and circumstances of the case but the exercise of
jurisdiction cannot be refused on the ground that it involves complicated questions of law and
facts Of course, the propriety o f the petitioners and their conduct having a bearing on the 21
subject matter o f the petition would be relevant to the decision as to whether the discretion
should or should not be exercised" (underlines added).
As such, from perusal of the above case laws, it is clear
that the relief under section 43 of the Companies Act, 1994 is
not ex debito justitiae and that relief under section 43 is equitable in
character, and that considerations such as waiver, acquiescence,
estoppel etc. would be relevant while granting or refusing the
same. By participating in the board meeting dated 08.08.2022
along with other directors from the newly subscribed shareholder
companies and by consenting to go in the IPO event, the appellant
has, in effect, acted upon the impugned subscriptions in
question. All the above background facts not only show
acquiescence on the part of the appellant, but also her active
participation in bringing about the situation which now she seeks
to have altered by means of this proceeding under section 43 of
the Companies Act, 1994. As such, the appellant is now barred by
the principle of estoppel from seeking relief from this Court.
Moreover, the relief under section 43 is of equitable nature
and it is an established principle of law that "he who comes to equity,
must come in clean hands". In the instant case, the appellant concealed
material facts relating to her participation in the meeting dated
08.08.2022 along with other shareholders whose subscription she
is challenging, her acting upon the impugned subscription in
question, her consent for the respondent No. 1 company to go to
IPO knowing fully well that the disputed subscriptions actually
took place to facilitate the company going into IPO, the
respondent No. 1 company's claim for compensation for her failure
to sign documents and her response to the company's claims by
shifting the burden on the management of the company without
denying her prior given consent for IPO or raising any objection
to the allotted shares at any point in time prior to filing the 22
application. All these facts manifestly show that she has
concealed material facts and come before this Court without clean
hands, as such, the appellant is not entitled to any relief from
this Court.
The position relating to the equitable nature of remedy
under section 43 of the Companies Act, 1994 is clear. It is also
an established principle of law that a person may waive a right
either expressly or by necessary implication and that such person
may in a given case disentitled himself from obtaining an
equitable relief particularly when he allows a thing to come to
an irreversible situation and that is a person, through his
conduct, has waived his right to an equitable remedy, such
conduct precludes and operates as estoppel against him with
respect to asserting the right (Babulal Badriprasad Varma v Surat Municipal
Corporation and ors. AIR 2008 SC 2919). As such, the argument made by the
learned Advocate of the appellant in the course of hearing that
her right could not have been waived or that acquiescence could
not have taken place is not correct.
The judgment and order of the this Division in the case
Jamuna Television Ltd. v Bangladesh (65 DLR (AD) 253) was passed against the
judgment and order dated 20.05.2010 passed by the High Court
Division in Writ Petition No.8100 of 2009. The appellant relied
on paragraph No.28 of the judgment, which states, "The doctrine of
promissory estoppel cannot be invoked against public interest or any statute."
It is our considered view that the principles laid down in
this judgment are applicable in public law matters, whereas the
instant case is a company matter, hence, a private law dispute.
The case law addresses the principle of promissory estoppel
against statute; not waiver, acquiescence and estoppel. The
concept of the principles ‘waiver, acquiescence and estoppel’ and
‘promissory estoppel’ is vastly distinct in law. As per the 23
Black's Law Dictionary, ‘acquiescence’ refers to ‘a person's
tactic or passive acceptance; implied consent to an act’;
‘waiver’ refers to 'the voluntary relinquishment or abandonment-
express or implied-of a legal right or advantage' and ‘Estoppel’
refers to ‘a bar that prevents one from asserting a claim or
right that contradicts what one has said or done before or what
has been legally established as true’. On the other hand, as per
the definition given in the Black’s Law Dictionary, ‘Promissory
estoppel’ refers to ‘the principle that a promise made without
consideration may nonetheless be enforced to prevent injustice if
the promisor should have reasonably expected the promisee to rely
on the promise and if the promisee did actually rely on the
promise to his or her detriment.’
In the instant case, it is not the case of promissory
estoppel. All the background facts and conducts of the appellant
not only show acquiescence and waiver on part of the appellant,
but also her active participation in bringing about the situation
which she now seeks to have altered by means of this proceeding.
As such, it is argued by the respondent No. 1 that the appellant
has, in effect, waived and acquiesced to the issuance and
allotment of shares by her active participation in the board
meeting and other subsequent conducts and hence, now estopped
from challenging the same.
With regard to the issue that the appellant’s shares in the
Company has been diluted from 10% to 2.34%, the High Court
Division observed that-
“..........but fact remains that when shares have
been increased and allotted she also got bonus shares
proportionately along with respondent No.2, but her
percentage of shares diluted due to allotment of shares
to respondent Nos. 3-10 and, hence, her allegation of 24
mala fide in dilution of her shares is also not
sustainable.”
We have no hesitation to concur with the above findings of
the High Court Division.
Having considered and discussed as above, we are of the
opinion that the judgment and order passed by the High Court
Division does not suffer from any illegality or infirmity.
Accordingly, the appeal is dismissed.
There will be no order as to costs.
J.
J.
J.
B.S./B.R./*Words-6,843*
|
IN THE SUPREME COURT OF BANGLADESH Appellate Division
PRESENT
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Abu Zafor Siddique,
Mr. Justice Md. Shahinur Islam,
CRIMINAL PETITION FOR LEAVE TO APPEAL NO.2769 OF 2023
(From the judgment and order dated the 3rd day of August, 2023 passed by the
High Court Division in Criminal Appeal No.248 of 2023).
Debdulal Basu : ..............Petitioner
-Versus-
The State, represented by the
Deputy Commissioner Dhaka and
another
: ..............Respondents
For the Petitioner
: Mr. Dewan Abdul Naser, Advocate,
instructed by Mr. Md. Shafiqul Islam
Chowdhury, Advocate-on-Record
For Respondent No.1 : Mr. A.M. Amin Uddin, Attorney
General with Mr. Sayeem Mohammad
Murad, Assistant Attorney General
appeared with the leave of the Court.
For Respondent No.2 : Mr. Sukumar Kumar Biswas, Advocate
with Mr. Sree Probir Kumar Ghosh,
Advocate, instructed by Mr. Haridas
Paul, Advocate-on-Record
Date of hearing and judgment : The 3rd day of June, 2024
JUDGMENT M. Enayetur Rahim, J: This criminal petition for leave to
appeal is directed against the judgement and order dated
03.08.2023 passed by a Division Bench of the High Court
Division in Criminal Appeal No.248 of 2023 dismissing the
appeal.
The facts, relevant for disposal of the instant criminal
petition for leave to appeal, are that, present victim,
respondent No. 2, Shila Halder being complainant filed a 2
complaint before the Nari-O-Shishu Nirjatan Daman Tribunal
No.8, Dhaka, against the present accused-appellant-petitioner
under Section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain,
2000 (amended in 2003) alleging inter-alia that the accused-
petitioner on 23.12.2017 upon showing respect to Hindu
religious idol and claiming married her started conjugal life
with the complainant in a rented house at Mirpur. Thereafter,
while she asked the accused-petitioner to take her into his
village home, the accused-petitioner refused to do so. The
complainant then came to know that the accused-petitioner is
a married person having another wife and child. On 05.01.2022
at about 10:00 p.m. the accused-petitioner lastly caused
physical relation with the complainant. The complainant to
that end went to the Mirpur Model Police Station for filing a
case against him, but the police refused to register the case
and advised her to file the case before the Court, then she
was compelled to file the petition of complaint being No. 118
of 2022 before the Nari-O-Shishu Nirjatan Daman Tribunal No.
8, Dhaka, on 28.07.2022.
The learned Judge of the Tribunal upon recording the
statement of the victim-complainant had directed the Police
Bureau of Investigation (PBI), Metro. (North), Dhaka to
inquire into the matter and to submit a report thereto.
Upon inquiry, the PBI submitted a detail report on
13.11.2022. Upon receiving the said inquiry report the
learned Judge of the Tribunal took cognizance of the offence
against the accused-petitioner under section 9(1)of the Nari-
O-Shishu Nirjatan Daman Ain, 2000 (Amended in 2003).
Then, the accused-petitioner filed an application for
anticipatory bail before the High Court Division and the High 3
Court Division enlarged him on anticipatory bail and after
obtaining bail the accused-petitioner filed an application
under section 265(C)of the Code of Criminal Procedure before
the Tribunal for his discharge from the case. However, the
Tribunal rejecting the said application vide its order dated
02.01.2023 framed charge against him under section 9(1) of
the Nari-O-Shishu Nirjatan Daman Ain, 2000.
Being aggrieved by the said refusal order, the accused-
petitioner filed Criminal Appeal No.248 of 2023 before the
High Court Division, which was admitted on 31.01.2023 and
after hearing the Appeal the High Court Division dismissed
the Appeal by the impugned judgment and order. Hence, the
accused has filed the instant criminal petition for leave to
appeal.
Mr. Dewan Abdul Naser, learned Advocate appearing for
the accused-petitioner submits that the inquiry report
prepared by the inquiry officer though it was mentioned that
prima facie case was found against the accused-petitioner
under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain,
2000, but in fact nothing was found on inquiry to the effect
that the accused petitioner raped her within the meaning of
section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000(as
amended in 2003).
Learned Advocate also submits that the High Court
Division failed to consider that after examining the
complainant doctor prepared a report wherein the doctor
opined that “considering physical examination findings and
microbiological report, I am of the opinion that the victim
named ‘Shila Halder’ has no sign of forceful sexual
intercourse found on her body”, and as such judgment and 4
order passed by the High court Division is liable to be set
aside. He further submits that the High Court Division failed
to consider that the sexual intercourse with the consent of
the adult woman does not constitute offence of rape under
section 9(1) of the Nari-O-Shishu Nirjatan Damon Ain, 2000
(as amended 2003).
Learned Advocate finally submits that the Nari-O-Shishu
Nirajtan Tribunal illegally took cognizance of the offence on
the basis of inquiry report submitted by PBI which is not
permitted as per section 27(1 Ka) of the Nari-O-Shishu
Nirjatan Daman Ain, and, as such the judgment and order
passed by the High Court Division is liable to be set aside.
Mr. A.M. Amin Uddin, learned Attorney General appearing
for respondent No. 1 made submissions in support of the
impugned judgment and order of the High Court Division.
Mr. Sukumar Biswas, learned Advocate appearing for the
complainant-respondent No. 2 also made submissions supporting
the impugned judgment and order of the High Court Division.
He further added that since the medical examination was held
long after the date of occurrence and, as such, recent sign
of rape may not be there, but the medical report itself shows
that the hymen of the victim was found ruptured and there
have been multiple old tears present and, therefore, those
materials on record shows that the accused petitioner upon
giving false assurance as of marrying the victim, has
committed rape on her for several times and as such, in the
medical report the above material symptoms were detected.
Learned Advocate for the complainant-respondent further
argued that in the case of rape, only relying upon a part of
medical examination report, even without taking other 5
material evidence on record, relying on the defence plea
cannot claim to be discharged.
Learned Advocate thus seeking dismissal of the leave
petition submits that since charge has already been framed
upon finding prima-facie materials and, as such, at this stage
only upon relying on the defence plea a case of committing
rape under section 9(1) of the Nari-O-Shishu Nirjatan Daman
Ain, 2000 (Amended in 2003) cannot be brushed away and the
order of charge cannot be set aside without taking evidence,
at the trial, as per the settled decision of our Apex Court.
We have considered the submissions of the learned
Advocates appearing for the respective parties, perused the
petition of complaint, the impugned judgement, relevant laws
and other materials as placed before us.
In the instant case it is admitted position that the
learned Judge of the Tribunal having found prima facie case
against the accused petitioner framed charge against him
under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain,
2003 having considered the facts and circumstances of the
case and materials on record. We find substance in the
submission of the learned Advocate for the complainant-
respondent that at this stage there is no scope to discharge
the accused-petitioner from the charge brought against him
relying on any defence plea or materials, if any.
The learned Advocate for the petitioner having referred
to the words ""mšÍó nB‡j Awf‡hvMwU AbymÜv‡bi (inquiry) Rb¨ †Kvb g¨vwR‡÷ªU wKsev Ab¨ †Kvb
e¨w³‡K wb‡`©k cÖ`vb Kwi‡eb Ges..................Ó as contemplated in section 27(1)
(Ka) has tried to convince us that Police Bureau of
Investigation (PBI) will not come within the meaning of "Ab¨ †Kvb
e¨w³Õ and PBI being one of the unit of Police is not permitted 6
to make any inquiry under the Nari-O-Shishu Nirjatan Daman
Ain, 2000 and thus the inquiry on the allegation of the
present case by PBI is without jurisdiction and illegal, and
on the basis of such inquiry report proceeding of the present
case is also illegal and without jurisdiction. In support of
his contention, he relied on the case of Mohammad Khorshed
Alam alias Md. Khorshed Alam vs The state and another,17
SCOB(2023)AD 61, wherein it has been held that:
“Having considered and discussed above, we are of the view that the Tribunal
did not commit any illegality in entertaining the complaint filed by respondent
No. 2. Section 27 (1 Ka) clearly speaks that if the learned Judge of the
Tribunal is satisfied as to the filing of the complaint he can direct the
Magistrate or any other person to make an inquiry with regard to the
allegation. The expression ‘Ab¨ †Kvb e¨w³’ (any other person) does not
include any police officer but, it includes any public officer or any private
individual or any other responsible person of the locality upon whom the
Tribunal may have confidence to conduct the inquiry in respect of the
complaint logged before it.
In the instant case the learned Judge of the Tribunal acted illegally in directing
the Officer-in-Charge of Pahartoli Police Station to make an inquiry in respect
of the complaint and, thereafter, taking cognizance on the basis of such inquiry
report has vitiated the entire proceeding.” (Underlines supplied).
To address the above issue let us examine section 27 of
the Nari-O-Shishu Nirjatan Daman Ain, 2000, which runs as
follows:
Ò27| UªvBey¨bv‡ji GLwZqvi|-(1) mve-B݇c±i c`gh©v`vi wb‡¤œ b‡nb Ggb †Kvb cywjk Kg©KZ©v ev
GZ`y‡Ï‡k¨ miKv‡ii wbKU nB‡Z mvaviY ev we‡kl Av‡`k Øviv ÿgZvcÖvß †Kvb e¨w³i wjwLZ wi‡cvU©
e¨wZ‡i‡K †Kvb UªvBey¨bvj †Kvb Aciva wePviv_© MÖnY Kwi‡eb bv|
(1K) †Kvb Awf‡hvMKvix Dc-aviv (1) Gi Aaxb †Kvb cywjk Kg©KZ©v‡K ev ÿgZvcÖvß e¨w³‡K †Kvb
Aciv‡ai Awf‡hvM MÖnY Kwievi Rb¨ Aby‡iva Kwiqv e¨_© nBqv‡Qb g‡g© njdbvgv mnKv‡i UªvBey¨bv‡ji wbKU
Awf‡hvM `vwLj Kwi‡j UªvBey¨bvj Awf‡hvMKvix‡K cixÿv Kwiqv- 7
(K) mš‘ó nB‡j Awf‡hvMwU AbymÜv‡bi (inquiry) Rb¨ †Kvb g¨vwR‡÷ªU wKsev ‡Kvb e¨w³‡K
wb‡`©k cÖ`vb Kwi‡eb Ges AbymÜv‡bi Rb¨ wb‡`©kcÖvß e¨w³ Awf‡hvMwU AbymÜvb Kwiqv mZ Kvh©
w`e‡mi g‡a¨ UªvBey¨bv‡ji wbKU wi‡cvU© cÖ`vb Kwi‡eb;
(L) mš‘ ó bv nB‡j Awf‡hvMwU mivmwi bvKP Kwi‡eb|
(1L) Dc-aviv (1K) Gi Aaxb wi‡cvU© cÖvwßi ci †Kvb UªvBey¨bvj hw` GB g‡g© mš‘ó nq †h,
(K) Awf‡hvMKvix Dc-aviv (1) Gi Aaxb †Kvb cywjk Kg©KZ©v‡K ev ÿgZvcÖvß e¨w³‡K †Kvb
Aciv‡ai Awf‡hvM MÖnY Kwievi Rb¨ Aby‡iva Kwiqv e¨_© nBqv‡Qb Ges Awf‡hvM mg_©‡b cÖv_wgK
mvÿ¨ cÖgvY Av‡Q †mB †ÿ‡Î UªvBey¨bvj D³ wi‡cvU© I Awf‡hv‡Mi wfwˇZ AcivawU wePviv_© MÖnY
Kwi‡eb;
(L) Awf‡hvMKvix Dc-aviv (1) Gi Aaxb †Kvb cywjk Kg©KZ©v‡K ev ÿgZvcÖvß e¨w³‡K †Kvb
Aciv‡ai Awf‡hvM MÖnY Kwievi Rb¨ Aby‡iva Kwiqv e¨_© nBqv‡Qb g‡g© cÖgvY cvIqv hvq bvB
wKsev Awf‡hv‡Mi mg_©‡b †Kvb cÖv_wgK mvÿ¨ cÖgvY cvIqv hvq bvB †mB †ÿ‡Î UªvBey¨bvj
Awf‡hvMwU bvKP Kwi‡eb;
(1M) Dc-aviv (1) Ges (1K) Gi Aaxb cÖvß wi‡cvU© †Kvb e¨w³i weiæ‡× Aciva msNU‡bi Awf‡hvM ev
Zrm¤ú‡K© Kvh©µg MÖn‡Yi mycvwik bv _vKv m‡Ë¡I UªvBey¨bvj, h_vh_ Ges b¨vqwePv‡ii ¯^v‡_© cÖ‡qvRbxq g‡b
Kwi‡j, KviY D‡jøLc~e©K D³ e¨w³i e¨vcv‡i mswkøó Aciva wePviv_© MÖnY Kwi‡Z cvwi‡eb|Ó
On a careful examination of section 27(1 ka) coupled with
sub-section (ka) it becomes crystal clear that on receipt of
a complaint supported by an affidavit if the Tribunal is
satisfied upon examining the complainant that after being
refused by the concerned police officer or the authorized
person he/she directly came to the Tribunal in that event an
order for holding inquiry on the complaint can be made.
In the case in hand, the complainant filed the petition of
complaint before the Tribunal supported by an affidavit
stating that statements made in the complaint is true. And in
the complaint it was asserted that she went to the police
station but the police refused to accept her complaint and
the concerned Tribunal being satisfied about the same, upon 8
examining the complainant, directed the PBI to hold an
inquiry into the allegation.
The intention of Section 27 (1 ka) is that before filing
of the complaint before the Tribunal, the complaint should
approach to the concerned police station first, and if he/she
is refused in that event he/she can file the complaint before
the Tribunal with an affidavit in regard to his/her refusal
by the police. This provision of law will come into operation
when the concerned police officer of a particular Police
Station refused to accept or lodge the complainant.
In the earlier case as cited by the learned Advocate for
the accused-petitioner, the Tribunal directed for holding
inquiry to the Officer-in-Charge of the same Police Station,
which refused to lodge the FIR. But in the instant case
Tribunal directed PBI to hold an enquiry on the allegation.
PBI is an independent investigating agency/unit of police.
Officer-in-Charge of a Police Station has no authority on the
PBI inquiry/investigation process. PBI acts on the basis of
PBI Regulations 2016 (cywjk ey¨‡iv Ae Bb‡fw÷‡Mkb wewagvjv, 2016)| In Bidhi 2(9)
it has been stipulated that " wcweAvB m`m¨Õ A_© wcweAvB G wb‡qvwRZ ‡Kvb cywjk m`m¨|'
Bidhi 4 clearly speaks that "wcweAvB Gi †nW‡Kvqv©Uv©m XvKvq _vwK‡e|Õ
So, PBI has an independent and separate identity.
It is true that the word ‘Ab¨ †Kvb e¨w³’ has not been defined
in the Nari-O-Shishu Nirjatan Daman Ain, 2000. Thus, we can
take aid of General Clauses Act 1897, where the word person
(e¨w³) has been defined as under:
Person-“person” shall include any company or association or body
of individuals, whether incorporated or not: (underline supplied) 9
If we consider the definition of ‘person’ (e¨w³) as
defined in the General Clauses Act coupled with the fact that
the PBI is an independent body/organization/unit of police,
which acts by its own Regulations thus, we have no hesitation
to hold that PBI, is an independent body i.e. body of
individuals and it will come within the meaning/definition of
‘Ab¨ †Kvb e¨w³’ as contemplated in section 27(Ka) of the Nari-O-
Shishu Nirjatan Daman Ain, 2003. Thus, the inquiry held by
the PBI in this particular case is within the ambit of the
law, and there is no scope to say that PBI or any other
independent law enforcing agency is not authorized to hold
any inquiry or investigation on the allegations made under
the Nari-O-Shishu Nirjatan Daman Ain, 2000. Thus, the
submission made by the learned Advocate for the petitioner
has no leg to stand.
Further, we have to understand the intention of the
legislature. If we read section 27(1) and 1(Ka) of the Ain
together, then it will be clear that intention of the
legislature is that the police officer who refused to accept
the complaint/FIR he should not be directed again to make
inquire/investigation for fair and impartial
inquiry/investigation and the enquiry or investigation should
be done by any other person (Ab¨ †Kvb e¨w³) other than the said
police officer or any officer of the same Police Station.
This provision has been made for the interest of the
complainant/victim, and an accused or offender is not
entitled to get benefit of it. 10
The facts of the cited case is quite distinguishable
from the facts of the present case and it will not help the
present accused petitioner in anyway.
Having discussed and considered as above, the instant
criminal petition for leave to appeal is dismissed.
J.
J.
J.
B.S./B.R./*Words-2,512*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Jahangir Hossain
CONTEMPT PETITION NOS. 29-33 OF 2022
(From the Judgment and order dated 07.04.2022 passed
by this Division in Civil Review Petition Nos. 282, 281,
278, 277 and 280 of 2019 respectively)
Md. Nurunnabi Bhuiyan ....Contempt-petitioner
(In Cont. P. No. 29 of 2022)
Md. Bazlur Rashid Akhonda ....Contempt-petitioner
(In Cont. P. No. 30 of 2022)
Iqbal Kabir Chowdhury ....Contempt-petitioner
(In Cont. P. No. 31 of 2022)
Md. Giasuddin ....Contempt-petitioner
(In Cont. P. No. 32 of 2022)
Monir Ahmed ....Contempt-petitioner
(In Cont. P. No. 33 of 2022)
-Versus-
Md. Abdullah Al Masud
Chowdhury, Secretary,
Security Services Division,
Ministry of Home Affairs,
Bangladesh Secretariat,
Ramna, Dhaka and another
....Contemnor-Respondents
(In all the cases)
For the Petitioners
(in all the cases)
: Mr. Mo hammad Ibrahim Khalil,
Advocate instructed by Mr. Md.
Zahirul Islam, Advocate-on-record
For Respondents
(in all the cases)
: Mr. Md. Shafiqul Islam, Advocate
instructed by Mr. Md. Abdul Hye
Bhuiyan, Advocate-on-record
Date of Judgment : 04.02.2024
J U D G M E N T
Md. Ashfaqul Islam , J: All these applications are
directed for drawing up proceeding for contempt of
Court against the Contemnor -respondents for
deliberate violation of , and disregard to , the 2
Judgment and order dated 07.04.2022 passed by th is
Division in Civil Review Petition Nos. 277 -278 and
280-282 of 2019.
Upon hearing, this Division directed the
contemnor-respondent Nos. 1 and 2 , Md. Abdullah Al
Masud Chowdhury, Secretary, Security Services
Division, Ministry of Home Affairs and Brigadi er
General ASM Anisul Hauqe, Inspector General of
Prison, Directorate of Priso n to appear in person
before this Division on 20.11.2023 to explain their
conducts on the issue.
Pursuant to that order the contemnor -respondents
appeared before this Division b y filing affidavit-in-
compliance but it appeared from that the order of
this court has been implemented partly. Accordingly,
we direct ed the contemnor -respondents to implement
that order completely.
By submitting another affidavit-in-compliance
today it is contended that as per judgment and order
dated 07.04.2022 passed by this Division in Civil
Review Petition No. 282 of 2019 and subsequent order 3
of ours , they have implemented the same in its
entirety. Delay occurred in respect of compliance of
the judgment and order is bonafide and unintentional
for which they beg unconditional apology and praying
exoneration from the charge of the contempt of court
leveled against them.
Let us first digress how the law of land empowers
the Supreme Court to punish somebody on the charge of
contempt of court.
In aid of all its powers given under the
Constitution, in order to ensure the authoritative
status of the Supreme Court, the Constitution
provides in article 112 that all authorities,
executive and judicial, in the Rep ublic shall act in
aid of the Supreme Court.
It is generally accepted that for the sake of
maintaining proper order and to ensure compliance of
the directions given in judgments, the courts have an
inherent power to punish any person or authority for
contempt. 4
The power of contempt of Court is coextensive
between the two Divisions of the Supreme Court which
can be exercise d equally under Article 108 of the
Constitution. Article 108 clearly clarifies the above
constitutional mandate.
Notably, Appellate Division has also power under
Article 103(2) (C) of the Constitution to impose
punishment on a person for contempt of that division.
Therefore, general power for both the Division s has
been engrain ed in Article 108 of the Constitution .
There is no ambiguity or l ack of clarity on that
score.
In the case of Bangladesh Environmental Lawyers
Association (BELA) Vs. Bangladesh, 2002 22 BLD 534,
A.B.M. Khairul Haque, J., as his Lordship was then,
observed as follows:
"The oath of office of the Judges of the Supreme
Court requires that they will preserve, protect and
defend the Constitution and the laws of Bangladesh.
These are not mere ornamental empty words. These
glorifying words of oath eulogizes the supremacy of 5
judiciary. It is by now well settled that if the
Government or its functionaries fails to act and
perform its duties cast upon them by the laws of this
Republic, the High Court Division of the Supreme
Court, shall not remain a silent spectator to the
inertness on the part of the Government or its
officials, rather, in order to vindicate its oath of
office can issue, in its discretion, necessary orders
and directions, under Article 102 of the Constitution
to carry out the intents and purposes of any law to
its letter, in the interest of the people of
Bangladesh because all powers in the Republic belong
to the people, and their exercise on behalf of the
people shall be effected only under, and by the
authority of the Constitution."
In a recently passed decision in the case of
Mohammad Harun -Or-Rashid vs. Syed Jah angir Alam
LEX/BDAD/0094/2023 while convicting and punishing the
current Mayor of Dinajpur Pourashava this Division
came down heavily on the issue holding that t he
trivia and tradition of this Court are well 6
identified and preserved. One should not forget that
the hands of the Courts are long enough to catch hold
of wrong doers wherever they hide. This is an
unfettered and inbuilt right attached to this Court.
The Supreme Court is one of the pillars of the
State machinery and afforded the dignity and respec t
by everyone, even the high and mighty: and rightly
so. Daily thousands of litigants throng before the
Courts in search of justice. They believe in and
respect the justice delivery system. Without such
reverence the judgments delivered would be
ineffective and the rule of law would be rendered
nugatory. Citizens of the country look to the
judiciary for adjudication of their legal disputes
with their neighbours as well as for enforcement of
their rights enshrined in the Constitution and other
laws of the la nd. However, if the judiciary is to
perform its duties and functions effectively, to live
up to the expectations of the citizens of the country
and remain true to the spirit with which they are
sacredly entrusted, the dignity and authority of the 7
Courts have to be respected and protected by all and
at all costs.
The contempt with which we are concerned in the
instant case relates to violation and disobedience of
the Court ’s order , which in essence means lowering
the dignity of the Court or making comments
calculated to undermine public confidence in the
judges and the justice delivery system.
It indeed baffles us when we see that the
contemnor-respondents after receiving the decision of
the highest judiciary of the country slept over the
matter without implementing the same . They show ed
very much reluctance to comply with the order of this
Court u ntil initiating contempt proceeding against
them. This trend can never be accepted. However, they
finally implemented the decision of this Division
belatedly and beg unconditional apology and pray ed
exoneration from the charge of the contempt of court.
In the light of the above observations, all these
petitions are disposed of. The contemnors-respondents
are hereby exonerated from the charge of contempt of 8
court. However, we strongly caution that in future
not only the present contemnor -respondents but also
all the authorities, executive and judicial, in the
Republic shall be careful to ensure the compliance of
the judgment and order of both the Division s of the
Supreme Court in totality.
CJ.
J.
J.
J.
J.
The 04th February,2024
/Ismail,B.O./*5879*
|
-1-
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Jahangir Hossain
CRIMINAL PETITION FOR LEAVE TO APPEAL
NOS.1059-1061 OF 2024
(From the orders dated 30.05.2024 passed by the High Court Division in Criminal
Revision Nos.3178,3180 & 3179 of 2024 respectively)
Pubali Bank Limited ......................Petitioner
(In all the cases)
-Versus-
Chowdhury Shamim Hamid and another .................Respondents
(In all the cases)
For the petitioner
(In all the cases)
: Mr. A. M. Amin Uddin, senior Advocate with
Mr. M. Ashraf Ali, Advocate instructed by Ms.
Madhumalati Chowdhury Barua, Advocate-on-
Record.
For the respondent
No. 1
(In all the cases)
: Mr. M. Sayed Ahmed, senior Advocate with
Zulhas Uddin Ahmed, Advocate instructed by
Mr. Md. Quamrul Islam, Advocate-on-Record.
For the respondent
No.2
(In all the cases)
: Not represented.
Date of hearing and
judgment
: The 11th day of June, 2024
JUDGMENT
Obaidul Hassan,C.J. All these Criminal Petitions for Leave to
Appeal are being disposed of by this common judgment as all the
cases are between the same parties and involve common questions of
law.
All these Criminal Petitions for Leave to Appeal are directed at
the instance of the petitioner-respondent No.1 in each case against
the orders dated 30.05.2024 passed by the High Court Division in
Criminal Revision Nos.3178, 3180 and 3179 of 2024 respectively
enlarging him on bail in each case for a period of one month to enable
him to deposit 50% of the total amount of cheque in preferring appeal
against the sentence of the trial Court.
-2-
The facts necessary for disposal of these criminal petitions are
that the petitioner, Pubali Bank Limited, Dorgagate Branch, Sylhet in
each case filed cases being Kotwali C.R. Case Nos.844 of 2021, 241 of
2022 and 963 of 2021 before the Additional Chief Metropolitan
Magistrate Court, Sylhet against the convict-respondent No.1 under
Section 138 of the Negotiable Instruments Act, 1881 (for short
Negotiable Instruments Act)contending, inter alia, that the respondent
No.1 took total loan amounting Tk.18,00,00,000/-(eighteen crore
only) from the complainant bank. As a part of payment of the said
loan the respondent No.1 issued three separate cheques in each case
amounting Tk.60,48,231/ (sixty lac forty eight thousand two hundred
thirty one only) each on 19.07.2021, 20.07.2021 and 20.03.2021
respectively. Those cheques were presented before the bank on
19.07.2021, 12.12.2021 and 31.08.2021 respectively for encashment, but
the same was dishonoured on the said dates in each case due to
insufficient of fund. Thereafter, the complainant sent legal notice in
each case to the respondent No.1 to make payment of the amount of
cheque failing of which the complainant filed three separate cases
under Section 138 of the Negotiable Instruments Act, 1881 against the
respondent No.1. Subsequently those cases were transferred to the
Metropolitan Sessions Judge, Sylhet and renumbered as Sessions
Case Nos.573, 572 and 574 of 2023 respectively which were
eventually sent to the Joint Metropolitan Sessions Judge, 1st Court,
Sylhet for holding trial. The trial in each case was held in absentia of
-3-
the respondent No.1. Upon conclusion of evidence the trial Court
vide judgments and orders dated 03.04.2024 sentenced and convicted
the respondent No.1 in each case to suffer 1(one) year simple
imprisonment and also to pay fine amounting Tk.60,48,231/ (sixty lac
forty eight thousand two hundred thirty one only). Subsequently on
25.05.2024 the respondent No.1 was arrested and he filed three
separate applications for bail in each case on 26.05.2024 under Section
426(2A) of the Code of Criminal Procedure, 1898 (for short Cr.PC) on
condition of preferring appeal before the appellate Court. Upon
hearing the bail applications the trial Court vide orders dated
26.05.2024 rejected the bail of the respondent No.1. Challenging the
said orders the respondent No.1 filed Criminal Revisions being
No.3178, 3180 and 3179 of 2024 before the High Court Division. Upon
hearing the said cases the High Court Division vide orders dated
30.05.2024 enlarged the respondent No.1 on bail in each case for a
period of 1(one) month, so that he can be able to deposit 50% of the
cheque amount for preferring appeal against the judgments and
orders of conviction and sentence passed by the trial Court.
Being disgruntled with the impugned orders dated 30.05.2024
passed by the High Court Division the complainant-petitioner in each
case filed these Criminal Petitions for Leave to Appeal.
Mr. A. M. Amin Uddin, learned senior Advocate appearing for
the petitioners in each case assailing the orders dated 30.05.2024
passed by the High Court Division contends that Section 138A of the
-4-
Negotiable Instruments Act stipulates for deposit of 50% of the total
cheque amount before filing appeal against the order of sentence
which is mandatory provision. The High Court Division has no
jurisdiction to enlarge the respondent No.1 on bail under Section
426(2A) of the Code of Criminal Procedure on condition of filing
appeal without deposit of the 50% of the total cheque amount. But
the High Court Division most illegally passed the impugned orders
and as such those are liable to be set aside.
On the other hand, Mr. M. Sayed Ahmed, learned senior Counsel
appearing for the respondent No.1 contends that the High Court
Division had given a breathing space by enlarging the respondent
No.1 to enable him to deposit 50% of the total cheque money in filing
appeal against the order of sentence awarded by the trial Court. The
learned senior Counsel contends next that the Negotiable
Instruments Act is a substantive law whereas the Code of Criminal
Procedure is procedural law which will be applicable to decide the
matter under Negotiable Instruments Act and as such the High Court
Division did not commit any illegality in passing the impugned
orders. The learned senior Counsel lastly prays for dismissal of the
Criminal Petitions.
We have considered the submissions of the learned Counsels
for both sides, perused the impugned orders passed by the High
Court Division as well as the materials on record.
It surfaces from the record that in the cases in hand the
respondent No.1 was arrested on 25.05.2024 and sought bail from the
trial Court under Section 426(2A) of the Code of Criminal Procedure
on condition of preferring appeal. However, he did not deposit 50%
-5-
of the total cheque money. The trial Court rejected the bail
applications of the respondent No.1 on 26.05.2024 in each case against
which the respondent No.1 again filed three Criminal Revisions
under Section 439 read with Section 435 of the Code of Criminal
Procedure before the High Court Division. The High Court Division
vide impugned orders allowed the respondent No.1 to go on bail
under Section 426(2A) of the Code Criminal Procedure for one month
so that he can deposit 50% of cheque money for preferring appeal in
each case. In the said backdrop, the moot issue in all the cases is
whether a convict under Section 138(1) of the Negotiable Instruments
Act is entitled to get bail under Section 426(2A) of the Code of
Criminal Procedure without complying with the stipulated condition
of depositing 50% of the total cheque money before preferring appeal
against the order of sentence as prescribed under Section 138A of the
Negotiable Instruments Act.
(underlines supplied by us)
Before delving into the said issue, it is apposite to extract
Sections 138A, 138(1) of the Negotiable Instruments Act vis-à-vis the
provisions of Section 426 of the Code of Criminal Procedure Section
138A of the Negotiable Instruments Act lays down the following-
“138A. Notwithstanding anything contained in the Code
of Criminal Procedure, 1898, no appeal against any order
of sentence under sub-section (1) of section 138 shall lie,
unless an amount of not less than fifty per cent of the
amount of the dishonoured cheque is deposited before
-6-
filing the appeal in the court which awarded the
sentence.”
(underlines supplied by us)
Section 138(1) of the Negotiable Instruments Act provides that-
“138.(1)Where any cheque drawn by a person on an
account maintained by him with a banker for payment of
any amount of money to another person from out of that
account is returned by the bank unpaid, either because of
the amount of money standing to the credit of that
account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that
account by an agreement made with that bank, such
person shall be deemed to have committed an offence and
shall, without prejudice to any other provision of this Act,
be punished with imprisonment for a term which may
extend to one year, or with fine which may extend
to thrice the amount of the cheque, or with both:
...............................................................................................”
Section 426 of the Code of Criminal Procedure is as follows-
”426.(1) Pending any appeal by a convicted person, the
Appellate Court may, for reasons to be recorded by it in
writing, order that the execution of the sentence or order
appealed against be suspended and, also, if he is in
confinement, that he be released on bail or on his own
bond.
(2) The power conferred by this section on an Appellate
Court may be exercised also by the High Court Division
in the case of any appeal by a convicted person to a Court
subordinate thereto.
-7-
(2A) When any person is sentenced to imprisonment for a
term not exceeding one year by a Court, and an appeal
lies from that sentence, the Court may, if the convicted
person satisfies the Court that he intends to present an
appeal, order that he be released on bail for a period
sufficient in the opinion of the Court to enable him to
present the appeal and obtain the orders of the Appellate
Court under sub-section(1) and the sentence of
imprisonment shall, so long as he is so released on bail, be
deemed to be suspended.
(2B) Where High Court Division is satisfied that a
convicted person has been granted special leave to appeal
to the Appellate Division of the Supreme Court against
any sentence which it has imposed or maintained, it may
if it so thinks fit order that pending the appeal the
sentence or order appealed against be suspended, and
also, if the said person is in confinement, that he be
released on bail.
(3) When the appellant is ultimately sentenced to
imprisonment, or transportation, the time during which
he is so released shall be excluded in computing the term
for which he is so sentenced.”
(underlines supplied by us)
Section 138A of the Negotiable Instruments Act stipulates that
an amount of not less than fifty per cent of the amount of the
dishonoured cheque shall be deposited by the convict in the Court
which awarded the sentence under Section 138(1) of the Negotiable
Instruments Act if he desires to prefer appeal against the said order
of conviction. Again, according to Section 426(2A) of the Code of
-8-
Criminal Procedure where a person is sentenced to imprisonment not
exceeding one year against which an appeal lies and the convict
intends to prefer an appeal against the order of sentence the Court
has the discretion to release the convict on bail for a period so as to
enable him to present the appeal. However, so long as the convict is
released on bail the sentence of imprisonment shall be deemed to be
suspended.
But the crux of the contention is that whether the convict under
Section 138(1) of the Negotiable Instruments Act can prefer appeal
and get bail for some time if he does not comply with the mandatory
provisions of Section 138A of the Negotiable Instruments Act as
regards deposit of 50% of the total amount of cheque. Suffice it to say
that the Negotiable Instruments Act is a special law and the
legislature’s intent behind the enactment of Section 138 of the
Negotiable Instruments Act is to prevent the drawee from being
defrauded of a negotiable instrument by a drawer of the same and
ultimate object of the law is to instill trust in the mind of the people
and maintain credibility in transacting business on negotiable
instruments. When once certain conditions are stipulated under the
special law the conditions have to be strictly complied with.
Section 138A of the Negotiable Instruments Act has a non-
obstante clause which has an overriding effect over general provisions
contained in the Code of Criminal Procedure as regards preferring
appeal against the order of sentence. The non-obstante clause is a Latin
-9-
phrase meaning ‘notwithstanding’ which is used to indicate that a
particular provision should take precedence over any conflicting
provisions. It precludes the use of contrary interpretations from other
statutes or laws. In the cases in hand, Section 138A of the Negotiable
Instruments Act imposes a restriction on a convict as regards
depositing 50% of the total cheque money before preferring appeal
against the sentence. The condition of depositing the 50% of the total
cheque money and preferring appeal both are dependent on each
other. Thus, where there is no deposit of 50% of the cheque money by
the convict under Section 138(1) of the Negotiable Instruments Act no
appeal will lie. The pre-condition regarding deposit of 50% of the
cheque money cannot be curtailed by application of general law.
It is settled that interpretation of a statute should be based on
the object which the legislature intended to achieve. It has been
observed by Indian Supreme Court in the case of M/S New India
Sugar Mills Ltd. Vs. Commissioner of Sales Tax, AIR 1963 SC 1207
that-
“It is a recognized Rule of interpretation of statutes that
expressions used therein should ordinarily be understood
in a sense in which they best harmonize with the object of
the statute, and which effectuate the object of the
Legislature. If an expression is susceptible of a narrow or
technical meaning as well as a popular meaning, the
Court would be justified in assuming that the Legislature
used the expression in the sense which would carry out
-10-
its object and reject which renders the exercise of its
power invalid.”
(underlines supplied by us)
It is manifest from the overall reading of the Negotiable
Instruments Act that the legislature inserted the provision of deposit
of 50% of the total cheque money before preferring an appeal in the
Negotiable Instruments Act only to streamline the process of
recovery of cheque money so that no person can deceive another as
regards transactions over cheque. Therefore, the pre-condition of
depositing 50% of the total cheque money while preferring appeal as
enshrined in Section 138A of the Negotiable Instruments Act cannot
be given a go-bye which according to the principle of interpretation
of statute must be adhered to. The High Court Division is not given
such latitude to allow a convict under Section 138(1) of the
Negotiable Instruments Act to go on bail for some period on
condition of preferring appeal against the sentence without
depositing 50% of the total cheque money before preferring appeal.
But the High Court Division by the impugned orders misconstrued
the provisions of Section 138A of the Negotiable Instruments Act and
as such those call for interference by this Division.
Of course, it is to be clarified that Section 435 of the Code of
Criminal Procedure enables the High Court Division to examine the
correctness, legality or propriety of any order passed by Court
inferior to it. In the cases in hand, the High Court Division has the
-11-
revisional jurisdiction to examine the legality of the order of rejection
of bail passed by the trial Court under Section 435 of the Code of
Criminal Procedure. Moreover, the High Court Division in dealing
with the revisional application has such power as enumerated in
Section 439 of the Code of Criminal Procedure. However, in
exercising such revisional power as enumerated under Section 439 of
the Code of Criminal Procedure the High Court Division cannot
dispense with the pre-condition of depositing 50% of the total cheque
money before preferring appeal by the respondent No.1. It is to be
noted that Section 426(2A) of the Code of Criminal Procedure is not
contradictory with the provisions of Section 138A of the Negotiable
Instruments Act. Rather the provisions of Section 426(A) of the Code
of Criminal Procedure will be applicable subject to the fulfillment of
condition stipulated under Section 138A of the Negotiable
Instruments Act.
In the premises made above as well as for the foregoing
reasons, the impugned orders dated 30.05.2024 passed by the High
Court Division in Criminal Revision Case Nos.3178, 3180 and 3179 of
2024 are set aside.
However, upon deposit of 50% of the total cheque amount by
the respondent No.1 in each case this judgment shall not preclude
him from preferring appeal against the respective judgment
pronounced by the trial Court. In case of deposit of 50% of the total
-12-
cheque amount in each case the Court below will be at liberty to
enlarge the respondent No.1 on bail in connection with each case.
With the above observations, these Criminal Petitions for Leave
to Appeal are disposed of.
C.J.
J.
J.
The 11th day of June, 2024
RRO/Total words-2,831
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NOS. 8-9 OF 2017
(Arising out of C.P Nos. 347 and 348 of 2014 respectively)
Hajera Khan and others .... Appellants
(In both the appeals)
-Versus-
Afsaruddin being dead his heirs:
1(a) Rumia Khatun and others
....Respondents
(In both the appeals)
For the Appellants
(In both the appeals)
: Mr. Farid Ahmed, Senior Advocate
instructed by Mr. Zainul Abedin,
Advocate-on-record
For the Respondent
Nos. 1(a)-1(d)and 2-5
(In C.A No. 8 of 2017)
: Mr. Zainul Abedin, Senior
Advocate instructed by Mr. Md.
Zahirul Islam, Advocate -on-
record.
For the Respondent
Nos. 1(a)-1(d)and 3-5
(In C.A No. 9 of 2017)
: Mr. Zainul Abedin, Senior
Advocate instructed by Mr. Md.
Zahirul Islam, Advocate -on-
record.
Date of Hearing : 09.01.2024 and 16.01.2024
Date of Judgment : 31.01.2024
J U D G M E N T
Md. Ashfaqul Islam, J: Both the civil appeals by leave are
directed against the judgment and order dated 16.10.2012
passed by the High Court Division in Civil Revision No.
3382 of 1995 (heard analogously with Civil Revision No.
3383 of 1995) making the rules absolute and thereby
setting aside the j udgment and decree passed in Title
Appeal No. 87 of 1989 (heard analogously with Title 2
Appeal No. 86 of 1989), dismissing the appeal and thereby
affirming the judgment and decree passed in Title Suit
No. 168 of 1984 (heard analogously with Title Suit No. 53
of 1987), decreeing the suit No. 168 of 1984 and
dismissing the suit No. 53 of 1987.
The predecessor of the present appellants, Amjad
Hossain as the plaintiff, filed Title Suit No. 575 of
1978 against Jashimuddin, the predecessor of the present
respondent Nos. 1 -5, and others which was subsequently
renumbered as Title Suit No. 168 of 1984. The suit sought
a declaration of title for the land s described in
Schedules 1 and 2, confirmation of possession of the land
in Schedule 1, recovery of khas possession of the land in
Schedule 2, and a permanent injunction along with mesne
profits.
Jashimuddin as plaintiff filed another suit being
Title Suit No. 53 of 1987 impleading Amjad Hossain as the
defendants regarding the self same suit land.
The case of the plaintiff in Title Suit No. 168 of
1984, in short, was that the lands described in schedule
1 and 2 are the accreted lands of Nuruli Ganga river
adjacent to C.S. Plot No.153 owned by Jibunnessa Khatun 3
and others, after accretion while the suit land became
fit for cultivation the predecessor of the plaintiff
Alauddin Bepari took settlement of the same from its
owner 40 years back by giving salami and paying taxes.
The suit land was duly recorded in the name o f Alauddin
Bepari in Plot Nos. 101 and 153. Alauddin Bepari died
leaving plain tiff as his heir. The defendants raised
objection against the S.A. record of the suit land under
section 30 of the State Acquisition and Tenancy Act but
became unsuccessful. The defendants reside near the
schedule 2 property and in the first part of Agrahayan
1385 B.S. they forcefully dispossessed the plaintiffs
from the schedule 2 property and hence the suit.
The case of the defendants is that the suit land is
the accreted land and it is contiguous to Plot Nos. 154,
161 and 162. While the land started accreting gradually
Jashimuddin took settlement of 10 1/2 pakhi of land from
the original owner Jibunnessa Khatun by executing a
kabuliyat which was registered on 14 th Chaitra 1353 B. S.
Subsequently Jasimuddin took settlement of 15 pakhi of
land more from Jibunnnessa by two patta. Since taking
settlement of those lands Jashimuddin possessed the same 4
on payment of rent to the landlord and subsequently to
the Government. He constructed his house on a portion of
the suit land and possessed the rest through cultivation,
all within the knowledge of everyone, including the
plaintiffs. During S.A. operation the suit land was
wrongly recorded in the name of plaintiffs . The
plaintiffs took advantage of the survey staff residing in
their house and collusively managed to have the suit land
recorded in their names in the S.A. khatian. The
defendants had been residing on the suit land for about
30 to 35 years.
During pendency of Title Suit No.168 of 1984
Jasimuddin himself also filed Title Suit No.53 of 1987 in
the same Court for declaration of title in the same land
and also for correction of record of right s. Both the
Title Suit No.168 of 1984 and Title Suit No.53 of 1987
were tried analogously. The trial Court, decreed Title
Suit No.168 of 1984 and dismissed Title Suit No.53 of
1987 by the judgment and decree dated 29.06.1989.
Being aggrieved by the decision of the trial Court,
the defendants of Title Suit No.168 of 1984 and the
plaintiff of Title S uit No.53 of 1987 preferred Title 5
Appeal Nos.86 of 1989 and 87 of 1989 respectively. The
appellate Court by the judgment and decree dated
04.04.1995 dismissed both the appeals affirming the
judgment and decree of the trial Court.
The heirs of the defendants of Title Suit No. 168 of
1984 and the plaintiff of Title Suit No.53 of 1987 then
preferred Civil Revision Nos. 3382 of 1995 and 3383 of
1995 before the High Court Division challenging the
judgment and decree of the appellate Court below which
upon heari ng the parties the High Court Division made
both the Rules absolute setting aside the judgment and
decree of the lower appellate court decreeing the Title
Suit No. 53 of 1987 and dismissing the Title Suit No. 168
of 1984. The heirs of plaintiff of Title Su it No.168 of
1984 and defendants of Title Suit No.53 of 1987 have
preferred separate Civil Petitions for Leave to Appeal
challenging judgment and order of the High Court Division
and obtained leave giving rise to these appeals.
The pith and substance of th e submissions pressed to
service by the learned Senior Advocate Mr. Farid Ahmed
for the appellants is that the High Court Division while
making the Rule absolute in both the revisions on setting 6
aside the concurrent findings of both the Courts below
gave a finding that both the Courts without discussing
the evidence on record decreed Title Suit No.168 of 1984
and dismissed Title Suit No.53 of 1987. This findings of
the High Court Division is perverse as because the trial
Court as well as the appellate Court on relying on the
S.A. and R.S. record of rights, farogs, rent receipts and
the oral evidence regarding possession and subsequent
dispossession of plaintiff of Title Suit No.168 of 1984
decreed that suit and dismis sed Title Suit No. 53 of
1987.
In elabora ting his submissions the learned counsel
contends that the High Court Division while making the
Rule absolute and setting aside the concurrent judgment s
and decrees of the Courts below, failed to point out the
misreading, non -reading or non -consideration o f any
evidence on record and without reversing the concurrent
findings of trial Court and appellate Court made the Rule
absolute.
On the other hand Mr. Zainul Abedin, the learned
Senior Advocate for the respondents submits the principle
not to interfere wi th concurrent findings of fact is not 7
a cast-iron practice and that the High Court Division in
appropriate cases may depart from that principle where
there is any violation of any rule of law or procedure or
where there have been misreading or non consider ation of
evidence affecting the ultimate decision of the Courts
below. In the instant case the High Court Division
rightly interfered with the concurrent findings of fact
arrived at by the Courts below . In support of his
contention he placed reliance in th e decision of Ziaul
Hasan Tarafder vs. Mir Osman Ali 73 DLR AD 250.
Now to sculpt a crystalised foundation of the
instances where the principle of no interference vis -à-
vis the principle of perversity were adopted by the High
Court Division and subsequentl y either endorsed or
disapproved by the Appellate Di vision we can take into
account established precedents.
To dispel any iota of ambiguity on the issue let us
go through some of those decisions clarifying the same.
In the case of Ziaul Hasan Tarafder (Md. ) vs. Mir
Osman Ali and Ors 73 DLR AD 250 it was observed:
“It is contended that the concurrent findings of
fact of the Courts below were illegally reversed
by the High Court Division although the High 8
Court Division could not point out any
misreading or n on reading of evidence, oral or
documentary.”
In the case of Atiqullah alias Atik Vs. Md Safiquddin
being dead his heirs Rashida Begum and others 59 DLR AD
149 this Division observed:
“The learned Advocateon -record failed to point
out that the considerati on of evidence made by
the High Court Division in the background of
non-consideration and misreading of the evidence
by the appellate Court was erroneous in any
respect and the said Division was in error in
arriving at the finding as to title and
possession of plaintiff and thereupon in setting
aside the judgment of the appellate Court. In
that state of the matter we do not find any
substance in the petition.”
In the case of Most. Akiman Nessa Bewa and others Vs.
Harez Ali and others 17 BLD AD 36 it was also observed:
“We find that the High Court Division upon
giving cogent reasons found that the plaintiff
was not entitled to the benefit of section 13 of
the Limitation Act as the pleading in the plaint
did not attract the application of the said
section. Als o we find that the High Court
Division in revision rightly interfered with the
finding of fact of the lower appellate Court 9
with regard to the genuineness of the bainapatra
Ext. 6. We therefore find no ground for
interference.
In the case of Promad Chandra Barman vs. Khodeza
Khatun Bewa 12 BLC AD 225 it was observed:
“In the facts and circumstances of the case and
in view of our discussion above, we are of the
view that the High Court Division without
adverting to the findings given by the court of
appeal regarding of pattan by Basanta Kumar in
favour of the plaintiffs by dakhilas, subsequent
execution of unilateral kabuliyats by plaintiffs
in favour of Basanta Kumar and possession of the
defendants in the suit land reversed those
finding on reassessment of the entire evidence.
Accordingly, the High Court Division committed
error of law in making the Rule absolute, which
requires interference by this court.”
In the case of Abul Bakar Siddique (Md) vs.
Additional Deputy Commissioner Kurigram and others 48 DLR
AD 154 it was observed:
“The learned Single Judge of the High Court
Division having independently assessed the
evidence and having found a case of non -
consideration of material evidence on record and 10
consequent non -reversal of material findings
interfered with the finding of fact. To our
mind, the revisional court is competent to
interfere in a case of non -consideration of
material evidence which is specifically material
for the determination of the material issue,
namely, the issue of shifting of the schoo l to
the new mouza.”
In the case of Khorshed Alam Vs. Amir Sultan Ali
Hyder 38 DLR AD 133 it was observed:
“The learned Single Judge is found to have
rightly refused interference with the finding of
the courts below which stands on a solid rock.”
Let us no w digress into the instant case . Upon
gleaning of the decision of the High Court Division with
utter surprise we observed that it has misdirected itself
without adverting to all the positive findings of the
courts below as we have discussed above. The find ings of
both the Courts below as we have discussed left nothing
unsaid about the good title and possession of the
plaintiff discarding the feeble and weak case of the
defendants. 11
Though the learned Senior Advocate Mr. Zainul Abedin,
Senior Advocate appear ing for the respondents tried to
impress upon us basing on the decision of Ziaul Hasan vs.
Osman Ali 73 DLR AD 250 that it’s not a cast -iron
practice and dogmatic approach that the High Court
Division will not interfere with the concurrent findings
of Courts below. The decision as cited by the respondent
is well founded and the principle laid down therein is an
age old one. It has been decided time and again by this
Division. As referred to above decision, certainly it’s
not a cast -iron practice and dogmat ic approach that the
High Court Division will not interfere with the
concurrent findings of Courts below. Yes, in a proper
case as it is propounded in the above decision that High
Court Division has ample and unfettered power to
interfere with the concurre nt findings of the Court
below. It can be reiterated that if the decision of the
Courts below is a perverse one, no reasons, whatsoever
can preclude the High Court Division in interfering with
the same. But in the case in hand, no departure of such
kind could be traced out upon gleaning the judgments of
both the Courts below. Therefore, question of
interference by the High Court Division does not arise in
this context. It did not at all advert to the points upon
which the decision of the Courts below was ba sed. It has 12
travelled in a different direction trying to stretch out
the case in favour of the defendants and against the
plaintiff which we disapprove. It is not a case in which
this Division will endorse merrily the view of the High
Court Division contemplating the Judgments of the courts
below being perverse. Rather we hold that the High Court
Division should have been loath in interfering the
concurrent findings.
Further, on the question of limitati on, the Courts
below held that S tate Acquisition and Tenancy Act came
into force in 1962 but the defendants instituted the
Title Suit claiming the suit land in the year 1987 which
is hopelessly barred by limitation. The question of
limitation goes at the root, we cannot simply understand
how it escaped noti ce of the High Court Division. No
deliberation has been given on that point. Moreover, the
Amalnama as it has been observed by the Courts below to
be fake and fabricated not coming from the real owner was
totally ignored and not taken into consideration by the
High Court Division. Likewise, there are so many laches
and lacunas which in our view, cannot in any case lead us
to think that the decision of the High Court Division was
a proper judgment of reversal. 13
On the conspectus , we find merit in the appeals .
Accordingly, both the appeals are allowed. The impugned
judgment and order of the High Court Division is set
aside, however, without any order as to costs.
CJ.
J.
J.
J.
The 31st January, 2024
/Ismail,B.O./*2469*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO. 375 OF 2015
(Arising out of C.P. No. 1797 of 2014)
Government of the People’s Republic of
Bangladesh, represented by the
Secretary, Ministry of Housing and
Public Works, Bangladesh Secretariat,
Shahbag, Dhaka and others
.... Appellants
-Versus-
Belal Udd in, represented by his
Constituted Attorney Murtaza Zakir
Hossain
....Respondents
For the Appellants : Mr. SK. Md. Morshed, Adl. AG with
Mr. Samarandra Nath Biswas, DAG,
Mr. Mohammad Saiful Alam, AAG and
Mr. Sayem Mohammad Murad, AAG
instructed by Mr . Hairdas Paul ,
Advocate-on-Record
For Respondent : Mr. Kamal-ul-Alam, Senior Advocate
with Ms. Shahnaj Akhter, Advocate
instructed by Mr. Syed Mahbubar
Rahman, Advocate-on-Record
Date of Hearing : 03.01.2024 and 07.02.2024
Date of Judgment : 27.02.2024
J U D G M E N T
Md. Ashfaqul Islam, J: This civil appeal by leave is directed
against the judgment and order dated 10.04.2014 passed by
the High Court Division in Writ Petition No.5218 of 2012
making the Rule absolute.
2
The present resp ondent Belal Uddin as petitioner
filed the aforesaid writ petition challenging inclusion
of the property measuring 12 decimals of land of B.S.
plot No.157 appertaining to B.S. Khatian No.9 recorded in
the name of predecessor of the writ -petitioner/transferor
corresponding to P.S. Plot No.99 of P.S. Khatian No.52
transformed from R.S. Plot Nos.87/104 as appeared in item
No.98 mentioning Plot No.9, Mouza -Pahartali under P.S.
Doublemooring at page 15656 (Kha) published in the
Bangladesh Gazette on 26.12.1988 v ide S.R.O. dated
25.12.1988 under section 5(1) of the Abandoned Buildings
(Supplementary Provision) Ordinance, 1985.
The case, made out in the Writ Petition, in brief, is
as follows:
The property in question originally belonged to Lalit
Mohan Roy and othe rs, recorded in the names of Amin
Sharif and Serajul Haque as rayati tenants during the R.S
operation. Upon Amin Sharif's demise, his daughter Sajeda
Khatun became the sole heir. Sajeda Khatun then
transferred 1.12 acres of land, including the case land,
to Anwara Ahammed Cowdhury via registered sale deed No.
2951 dated 16.04.1956, delivering possession to the 3
transferee. Subsequently, the writ-petitioner purchased
the property through registered sale deed No. 478 dated
08.01.1985 from Anwara Aham med Chowdh ury and got
possession. However, without issuing any notice, the
property was listed as abandoned. Due to non -service of
notice and being abroad, the writ-petitioner couldn't
approach the Court of Settlement, leaving no alternative
but to file an application under Article 102 of the
Constitution and obtained Rule.
Upon hearing the parties, the High Court Division
made the Rule absolute. Against which the writ -
respondents filed civil petition for leave to appeal and
obtained leave giving rise to this appeal.
Mr. SK. Md. Morshed, the learned Additional Attorney
General appearing for the appellants, contends that the
writ petitioner failed to provide evidence refuting the
absence of the ori ginal owner, Anwara Ahammad Chow dhury,
in Bangladesh when President's O rder 16 of 1972 took
effect. Therefore, inclusion of the property as abandoned
under the Supplementary Provisions Ordinance, 1985 was
lawful. The High Court Division erred by overlooking this
crucial point in its consideration of the case. 4
He finally submits that, being a Court of Appeal, the
High Court Division was not mandated to conduct factual
determinations of its o wn. However, its failure to
adequately address pertinent evidence prejudicial to the
complaining party, or any indication of mala fide cond uct
or infringement of the principles of natural justice,
renders the impugned judgment required to be set aside.
On the other hand Mr. Kamal -ul-Alam, the learned
Senior Advocate for the respondent -writ petitioner,
contends that the enlistment of the land in question as
abandoned property constitutes a clear violation of the
principle of natural justice, as stipulated in Article
7(3) of the Bangladesh Abandoned Property Order, 1972 (P.
O. No. 16 of 1972), and Section 5(1)(b) of the Bangladesh
Abandoned Buildings (Supplementary Provisions) Ordinance,
1985 (Ordinance No. LIV of 1985). He argues that neither
prior notice for enlistment nor subsequent notice for
surrender or transfer of possession was served to the
respondent or his transferor. He emphasizes th at the
gazette notification dated 26.12.1988 cannot serve as a
substitute for such statutory notice, rendering the
enlistment illegal. 5
Furthermore, He asserts that the land in question
does not meet the criteria or definition of abandoned
property. He argu es that its enlistment was based on
assumptions and mistaken beliefs without any factual
basis, as neither the respondent nor his transferor nor
any previous owner were engaged in activities detrimental
to the state's interests.
Next he submits that the writ petitioner and his
transferor both are the citizen of Bangladesh, they were
born in Bangladesh and they were always present in
Bangladesh, their whereabouts were never unknown and they
never ceased to occupy, supervise or manage the property
in person d eserting the same before the commencement of
P. O. No. 16 of 1972 and as the land in question does not
fall within the purview of P. O. No. 16 of 1972 and
therefore, the enlistment of the land in question as
abandoned property being illegal, the instant ap peal is
without any merit and liable to be dismissed.
He also placed reliance upon a series of decisions,
such as Bangladesh represented by the Secretary, Ministry
of Works and others vs. Helaluddin Ahmed 4 MLR (AD) 140,
where it was unanimously held that prior notice for 6
enlistment or treatment of properties as abandoned
property is a condition precedent. Since this condition
precedent was not fulfilled in the present case, Mr.
Kamal-ul-Alam asserts that the enlistment of the
respondent's property as abandoned property is inherently
illegal. Therefore, he argues that there is no merit in
the appeal and it should be dismissed accordingly.
We have heard the learned Advocates of both sides and
perused the impugned judgment and order of the High Court
Division.
The High Court Division noted that no notice was
served upon the writ -petitioner prior to the enlistment
of the property as an abandoned property. It is also
noted that as per documents presented in the writ
petition the petitioner was found to be in poss ession of
the property in question, and no notice for surrendering
or taking over possession of the disputed building could
be produced by the Government, as mandated by Section 5
of Ordinance No.54 of 1985. Section 5 of the Ordinance
stipulates that listing in the official gazette of house
buildings as abandoned property requires issuance or
service of notice, or taking possession pursuant to such 7
notice. The absence of such notice renders the listing
illegal. Citing the precedent set in the case of
Bangladesh represented by the Secretary, Ministry of
Works and others Versus Helaluddin Ahmed, reported in 4
MLR AD 140, this court underscored the necessity of
serving notice before treating a property as abandoned.
It was also held that d espite being unaware o f the
inclusion of the property until March 1, 2009, when the
time for seeking remedy through the Court of Settlement
had expired, the petitioner's right to challenge the
inclusion was upheld under Article 102(2)(a)(ii) of the
Constitution. The court affir med the maintainability of
the petitioner's application challenging the inclusion of
the disputed property in the impugned Gazette under
Article 102(2)(a)(ii) of the Constitution, considering
the non -existence of an alternative remedy due to the
expired timeframe.
It is absolutely incumbent upon the claimant who
claims the property to be illegally included in the
gazette to prove the said property not to be abandoned.
The fact of proving that the property is not an abandoned
one and not vested in the Govern ment is totally on the 8
person who challenges the same to be not an abandoned
property and intends to take such property out of the
list of the abandoned property published in the official
Gazette or for any other relief as detailed in section 7
of the Ordi nance 54 of 1985. In the case of the
Government of Bangladesh vs. Md. Jalil and others
reported in 48 DLR AD 10 it was held:
“The High Court Division, in our opinion, stated
with a wrong premise holding that the
presumption of correctness of the entries i n the
Gazette notification does not absolve the
Government from denying the facts alleged by the
claimant or from disclosing the basis of
treating the property as abandoned property when
it is disputed. Section 5(2) of the Ordinance
clearly provides that t he list published under
sub-section (1) shall be conclusive evidence of
the fact that the buildings included therein are
abandoned property and have vested in the
Government as such. Section 7 says that a person
claiming any right or interest in any such
building may make an application to the court of 9
Settlement for exclusion of the building from
such list, etc. on the ground that the building
is not an abandoned building and has not vested
in the Government under President’s Order No. 16
of 1972 or that h is right or interest in the
building has not been affected by the provisions
of that Order. The onus, therefore, is squarely
on the claimant of the building to prove that
the building is not an abandoned property. The
Government has no obligation either to deny the
facts alleged by the claimant or to disclose the
basis of treating the property as abandoned
property merely because the same is disputed by
the claimant.”
The stringent provisions of law that the onus lies
upon the claimant of the building to pr ove that the
building is not an abandoned property have been settled
by plethoras of decisions.
Now the core question is whether the writ-petitioner
was able to prove before the High Court Division that
original owner Anwara Ahammed Chowdhury from whom the
property had been purchased by the writ petitioner was 10
present at the relevant time, that is March 1971 to
February 1972.
Mr. Kamal-ul-Alam, the learned Senior counsel for the
respondent-writ-petitioner on this score has strenuously
tried to impress upon us that the writ petitioner and his
transferor both are the citizen of Bangladesh, they were
born in Bangladesh and they were always present in
Bangladesh, their whereabouts were never unknown and they
never ceased to occupy, supervise or manage the proper ty
in person deserting the same before the commencement of
P. O. No. 16 of 1972 but no rebuttable evidence could be
adduced to show that the transferor Anwara Ahammed
Chowdhury was present in Bangladesh for the purpose of
proving that the property was not an abandoned property.
It is our considered view that the writ-petitioner is not
absolved from the burden of proving to the hilt the
whereabouts of Mr. Anwara Ahammed Chowdhury during the
relevant period as hinted above. Almost in a similar
facts and circu mstances this Division came down heavily
in the case of Bangladesh, represented by the Secretary,
Ministry of Public Works Department and Urban Development 11
vs. Md. Suruzzamal and others reported in 48 DLR AD 1. In
paragraph 19 of the said reference it has been observed:
“This Division has held in the case of Gannyson
vs. Sonali Bank, 36 DLR AD 146, that once a
property vests in the Government under
President’s Order No. 16 of 1972 no legal
proceedings can be taken against such property.
The money decree obtained by Rupali Bank against
Dr. Shamim, the execution thereof and the
auction sale of the suit property are all void
and will not divest the Government of its title
to the suit property and the auction -purchaser
has acquired no title to the same by his a uction
purchase.”
Facts and circumstances of the above case are almost
similar to that of the case in hand. Admittedly, the
property is enlisted in the list of abandoned property .
Therefore, non service of notice upon the writ-petitioner
is of no avail.
In the case of Rawsanara vs. Bangladesh 59 DLR AD 165
it has been held that- 12
“In the instant case the petitioner having not been
able to establish before the Court of Settlement that the
claimant of the property or for that matter her vendor
Anwari Khatun were present in Bangladesh on 28-2-1972 and
consequent thereupon the property having had assumed the
character of abandoned property, the listing of the
property in question, even if without service of notice
as per provision of Ordinance No. 54 of 1985, i s not
material as the property because of non-service of notice
for listing in the list of abandoned properties would not
cease to be an abandoned property and consequent
thereupon the claim of title made by the petitioner in
the property in question is no t legally sustainable or,
in other words, the petitioner cannot raise any claim of
title in the property in question since said property is
an abandoned property.”
This proposition of law has been endorsed by a
subsequent decision of Shahidul Haque Bhuiyan and others
vs. Chairman, 1st Court of Settle ment and another 69 DLR
AD 241 and finally set at rest. In that decision it has
been observed in paragraph Nos. 23 and 24 by this
Division:- 13
“Next point raised by the Counsel is that since
no notice was served u pon the appellants before
the publication in the gazette, the listing of
the buildings is illegal. There is no dispute
that the property has been listed in the 'Kha'
list. Service of notice is required under clause
(b)(1) of section 4 for surrendering or g iving
possession of the buildings upon the person in
legal possession and the notice for surrendering
possession shall have to be issued within the
specific time. Law does not provide for service
of notice upon any person who is not in
possession of the bu ildings. Both the learned
Counsel submit that since no notice has been
issued upon the appellants, there has been
violation of law. In this connection they have
referred to Article 7 of PO 16 of 1972 read with
Rule 3(1)(8) of the Bangladesh Abandoned
Property (taking over possession Rules 1972).
Article 7(2) provides service of notice upon
the person in possession of the property within
seven days by the Deputy Commissioner or the
authorized person for taking possession. Similar
provision has been inserted in clause (b) of
section 4 of the Ordinance with the exception
that under the latter provision if the 14
possession is to be taken such notice be issued
upon him. In order to bring the case under
Article 7, the appellants must prove that they
are in possessi on of the building but if they
fail to prove possession, the claim of service
of notice upon them is redundant for, if they
are not in possession how the government can
infer that they have right or interest in the
buildings. More so, section 4 is a non -obstante
clause overriding the provisions contained in
the President's Order 16 of 1972. The rules
frames under the President's Order cannot
supersede the parent law. In the premises, the
High Court Division is perfectly justified in
holding that the appella nts are not entitled to
any notice since they are not in possession of
the property. In this regard, the Court of
Settlement held that the question of non -service
of notice required u nder section 4(1)(b) of the
Ordinance was not challenged in the case.
Similar views have been taken in Rowshan Ara vs.
Bangladesh, 59 DLR (AD) 165. It has been held
that if the property has assumed the character
of abandoned property, 'the listing of the
property in question, even if without service of
notice as per provision o f Ordinance No. 54 of
1985, is not material as the property because of
non-service of notice of listing in the list of 15
abandoned properties would not cease to be an
abandoned property......'”
As long as the property has attained the status
and char acter of an abandoned property through the
operation of law, any argument concerning the non -service
of notice upon the writ -petitioner holds no merit. In
such circumstances, the procedural lapse regarding
notification becomes inconsequential and cannot be
invoked to challenge the legal disposition of the
property. Consequently, the arguments presented by Mr.
Kamal-ul-Alam, addressing the issue of notice, bereft of
any consideration. The legal principle here is clear: the
designation of a property as abando ned supersedes and
nullifies any procedural objections related to notice,
rendering them legally ineffective and immaterial.
Article 2 of the PO 16 in clear terms has spelt out the
definition of abandoned property which is as under:-
“(i) “abandoned property means any property owned by
any person who is not present in Bangladesh or whose
whereabouts are not known or who has ceased to occupy,
supervise or manage in person his property, including-
(i) any property owned by any person who is a citizen
of a State which at any time after the 25th day of March,
1971, was at war with or engaged in military operations
against the People's Republic of Bangladesh; 16
(ii) any property taken over under the Bangladesh
(Taking Over of Control and Management of Industrial and
Commercial Concerns) Order, 1972 (Acting President's
Order No. 1 of 1972), but does not in clude- (a) any
property the owner of which is residing outside
Bangladesh for any purpose which, in the opinion of the
Government, is not prejudicial to the interest of
Bangladesh;
(b) any property which is in the possession or under
the control of the Go vernment under any law for the time
being in force.”
Therefore, the irresistible inference which follows
that in a ny course of event the bounden duty to be
discharged by the claimant for taking out a property from
the clutch of ‘abandoned property’ has b een time and
again decided in one line. Though it will be repetition
but still we want to reiterate that it is the claimant
who shall have to prove to the hilt that the property in
question is not an abandoned property. In the instant
case the petitioner c ould not prove that his transferor
Anwara Ahammed Chowdhury was present at the relevant time
as required under law and interpreted by several
decisions as discussed above. 17
Accordingly, the appeal is allowed without any order
as to costs. The impugned judg ment and order passed by
the High Court Division is hereby set aside.
CJ.
J.
J.
J.
J.
The 27th February,2024
/Nayeem Firoz, RRO & Ismail,B.O./*2085*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NO.74 OF 2007.
(From the judgment and order dated 14.01.2007 passed by
the High Court Division in Income Tax Reference
Application No.274 of 2006 with Rule No.09(Ref) of 2006).
East West University, a Project of Progati
Foundation for Education and Development, a
Society Registered under the Societies
Registration Act, 1860 having its address at
45, Mohakhali, C.A. Dhaka.
: ...Appellant.
-Versus-
The Commissioner of Taxes, Taxes Zone-3, Dhaka. :...Respondent.
For the Appellant.
: Mr. Khairul Alam Chowdhury, Advocate
instructed by M r. Md. Helal Amin ,
Advocate-on-Record.
For the Respondent.
: Mr. A.M. Amin Uddin, Attorney
General with Mr. Samarendra Nath
Biswas, Deputy Attorney General,
Ms. Mahfuza Begum, Deputy Attorney
General, Mr. Mohammad Saiful Alam,
Assistant Attorney General, Ms.
Farzana Rahman Shampa, Assistant
Attorney General, instructed by Mr.
Haridas Paul, Advocate-on-Record.
Date of Hearing. : The 25th & 27th February, 2024.
Date of Judgment. : The 27th February, 2024.
J U D G M E N T
Borhanuddin,J: This civil appeal by leave is directed
against the judgment and order dated 14.01.2007 passed by
the High Court Division in Income Tax Reference 2
Application No.274 of 2006 with Rule No.09(Ref) of 2006
allowing the application in part.
Brief facts are that the appellant university is a
Project of Progati Foundation for Education and
Development and r egistered under the Societies
Registration Act, 1860 ; Said Foundation adopted a
resolution that the university would be run exclusively
for educational purposes , not for the purpose of a ny
profit, excess income from the university would be
utilized only for educational purposes , no income which
is in excess of the expenditure to be paid to any member
of the foundation or to any of its sections; The
appellant-university submitted income tax return for the
year 2004-2005 showing an income of Tk.8,68,26,317/ - and
claimed the income as exempted from tax by the SRO
No.178-Income Tax/2002 dated 03.07.2002 read with SRO
No.454-L/80 dated 31.12.1980; The Deputy Commissioner of
Taxes (hereinafter referred to as ‘the DCT’), Companies
Circle-9, Taxes Zone -3, Dhaka, ignoring the
aforementioned SROs, i.e. provisions of exemption in
respect of the income of the university assessed tax at 3
Tk.14,01,52,554/-; As against the order of the DCT , the
appellant-university preferred appeal before the
Commissioner of Taxes [hereinafter referred to as ‘the CT
(Appeal)’], Appeal Zone -3, Dhaka, but the CT ( Appeal)
with some modification dismissed the appeal vide order
dated 23.08.2005; Against the order of the CT ( Appeal),
the appellant preferred second appeal being Income Tax
Appeal No.1688 of 2005 -2006 before the Taxes Appellate
Tribunal, Division Bench -4, Dhaka , and the Tribunal by
its judgment and order dated 20.02.2006 dismissed the
appeal affirming the decision of the CT ( Appeal) on the
finding that since tuition fees are charged and teachers
are paid remuneration therefore the appellant runs the
private university on commercial basis and the income
over expenditure being its income from business is
taxable and the Tribunal also agreed with the DCT and the
CT (Appeal) in disallowing an amount of Tk.1,04,22,925/ -
claimed as disbursement of scholarship to poor and
meritorious students and a further amount of
Tk.10,00,000/- spent on Medha Lalon Fund. 4
As against the judgment of the Tribunal, the
appellant filed an application under Section 160 of the
Income Tax Ordinance, 1984 , before the High Court
Division formulating 8(i-viii) questions of law in the
form of following grounds:
“i. For that the assess ee Applicant being
totally exempt from tax the Tribunal erred
in holding that since tuition fees are
charged and the teachers are paid salaries
the appellan t’s income over expenditure is
its income from business.
ii. For that the appellant is a non -
profitable institution established for the
promotion of education and no part of its
income are utilised for its promoters/
founders but utilised solely for its own
purpose especially for the purpose of
education and infrastructure development and
there is no sc ope to run the appellant-
university on commercial basis and as such
it is entitled to get benefit of exem ption
of income tax under SRO No. 454-L/80 dated
31.12.1980 and SRO No. 178 dated 03.07.2002
and in such situation the Tribunal acted
illegally in dismissing the appeal.
iii. For that information technology being
imparted the appellant is exempted from tax
under SRO No.178 dated 03.07.2002.
iv. For that the Tribunal acted illegally in
not holding that the profit seeking purpose 5
being the basic elemen t to be operated on
commercial basis and the appellant being a
non-profitable educational institution
cannot be operated on commercial basis and
its entire income is held by it for the
purpose of education and thus it is entitled
to be exempted from income tax under the SRO
dated 03.07.2002.
v. For that the Tribunal acted illegally in
treating the appellant to be a University
run on commercial basis when the appellant
is clearly a non -profitable institution and
the amended Notification did not make any
difference so far the appellant is
concerned.
vi. For that the compu ter department of the
appellant-university is not subject to tax
inasmuch as the income from this Department
is exempted from paying tax under SRO dated
03.07.2002.
vii. For that the Tribunal acted illegally in
affirming the disallowance by the DCT and its
confirmation by the CT (Appeal) of the entire
disbursement of Tk.1,04,22,925/ - on scholarship
to the poor and meritorious students in
fulfilment of the University Grants
Commission’s requirem ents inasmuch as such
disallowance is not tenable in the eye of law.
viii. For that the Tribunal acted illegally
in affirming the decisions of the DCT and CT
(Appeal) as regards the rejection in its
entirety the amount of Tk. 10,00,000/- spent
on Medha Lalo n Fund inasmuch as such 6
rejection in disregard of the objectives of
the Foundation is not supportive of law.”
Upon hearing the respective parties, the High Court
Division allowed the reference application in part
answering the formulated Question Nos.(i) -(vi) i n
negative and Question Nos.(vii) and (viii) i n affirmative
vide impugned judgment and order dated 14.01.2007.
Having aggrieved , the appellant being petitioner
preferred Civil Petition for Leave to Appeal No.152 of
2007 invoking Article 103 of the C onstitution and
obtained leave granting order on 28.03.2007.
Consequently, instant civil appeal arose.
Mr. Khairul Alam Choudhury , learned Advocate
appearing for the appellant submits that the Government
(Ministry of Finance) in exercise of its power as
conferred by Section 60(1) of the Income Tax Act, 1922
published gazette notification being SRO No.454 -L/80
dated 31.12.1980 exempting income tax on some classes of
income including the income of the unive rsity or any
other educational institutions existing solely for
educational purpose and not for the purpose of profit. 7
Subsequently, the Government in exercise of its power as
conferred by Section 44(4)(b) of the Income Tax
Ordinance, 1984 amended the said SRO No.454 -L/80 and
substituted Sub -Clause (3) of Clause (a) making the
income of university/any other educational institutions
“not operated commercially” as tax exempted and as such
the appellant-university registered under the Societies
Registration Ac t, 1860 and not being operated
commercially is entitled to have the benefit of SRO
No.454-L/80 dated 31.12.1980 read with SRO No.178 -Income
Tax/2002 dated 03.07.2002. He also submits that income of
the appellant-university is spent for promoting education
by giving scholarship s and other incentives to the
students for development of education and the appellant-
university not being operated commercially is entitled to
have the benefit of SRO No.454 -L/80 dated 31.12.1980 read
with SRO No.178 -Income Tax/2002 dated 03.07.2002. He
further submits that the issue raised in this appeal has
been settled and is covered vide order dated 06.02.2017
passed by this Division in Civil Petition for Leave to
Appeal Nos.1896-1900 of 2015. 8
On the other hand Mr. A.M. Amin Uddi n, learned
Attorney General appearing for the respondent conceded
that the issue raised in this appeal has been settled by
this Division in Civil Petition for Leave to Appeal
Nos.1896-1900 of 2015 a ffirming the judgment and order
dated 14.05.2015 passed by a larger Bench of the High
Court Division in Income Tax Reference Application
Nos.159-162 of 2011 and 511 of 2004.
Heard the learned Advocate for the appellant and the
learned Attorney General for the respondent and perused
the impugned judgment and ord er passed by the High Court
Division alongwith papers/documents contained in the
paper book.
The issue involved in the appeal
The appellant filed Incom e Tax Reference Application
No.274 of 2006 before the High Court Division under
Section 160 of the Income Tax Ordinance, 1984 in respect
of the income tax assessment year 2004 -2005 challenging
the order dated 28.02.2006 of the Taxes Appellate
Tribunal, Division Bench-4, Dhaka, in Income Tax Appeal
No.1688 of 2005 -2006, wherein the Tribunal declined to 9
allow t ax exemption under SRO No. 454-L/80 dat ed
31.12.1980 read with SRO No. 178-Income Tax/2002 dated
03.07.2002.
The said SRO No. 454-L/80 dated 31.12.1980 read with
SRO No.178-Income Tax/2002 dated 03.07.2002 (as on the
date of assessment) provides as follows:
“In exercise of the powers conferred by Sub-
Section (1) of Section 60 of the Income -Tax
Act, 1922 (XI of 1922) and supersession of the
Ministry of Finance Notif ication No. SRO
1041(K)/61, dated the 31 st October, 1961 the
Government is pleased to direct that:
(a) The following classes of income
shall be exempt from the tax payable
under the said Act and they shall
not be taken into account in
determining the total income of an
assessee for the purposes of the
said act.
-AND-
(3) the income of any university, or any other
educational institution, which is not operated
commercially and also medical college, dental
college, engineering college and institution
imparting education on information
technology.”
The High Court Division vide judgment and order dated
14.01.2007 passed in the Income Tax Reference Application
No.274 of 2006 upheld the decision of the Tribunal 10
declining to extend entitlement of exemption to the
appellant-university on the ground that the appellant
failed to submit certificate or exemption letter of the
income tax authority proving that the appellant -
university is entitled to tax exemption under the said
SRO dated 31.12.1980 as amended by SRO dated 03.07.2002.
The relevant part of the said judgment and order dated
14.01.2007 is quoted below:
“----The SRO No.454-L/80(a) dated 31.12.1980
as amended by SRO No.178 -Income Tax/2002
dated 03.07.2002 contains, amongst other,
that the income of any University or any
other educational institution ‘not operated
commercially’ and/or ‘institution impartin g
education on information technology ’ are
exempted from payment of tax and the same is
general provision as to entitlement to claim
exemption. In order to get such exemption it
is necessary to satisfy the Taxes authority
as to the fulfilment of the condit ions/
criteria laid down in the SRO ’s by an
university or educational institution and on
being satisfied the Tax authority is to
issue a certificate or exemption letter to
be produced/referred as and when required by
the assessing officer. The SRO ’s do not
authorize the assessing officer to decide
the claim of such tax exemption by an
assessee inas much as such claim for tax -11
exemption requires proper enquiry by
competent authority.”
Against the judgment and order dated 14.01.2007
passed by the High Court Division in Incom e Tax Reference
Application No.274 of 2006, this Division granted leave
on 28.03.2007 , out of w hich the instant Civil Appeal
No.74 of 2007 arose.
On perusal of the judgment and order dated 14.05.2015
passed by the larger Bench of the High Court Division and
order dated 06.02.2017 passed by this Division it appears
that the issue involved in the instant appeal has been
settled by this Division affirming the judgment and order
of the larger Bench of the High Court Division.
Relevant portion of the judgment and order passed by
the larger Bench of the High Court Division is quoted
below:
The main arguments entered around whether
the asses see-university or the assessee -
college may be treated as ‘being operated
commercially’. There is no dispute that the
words ‘operated commercially’ or ‘not
operated commercially’ have not been defined
in the Ordinance or the Rules made
thereunder. From the Notification, SRO 12
No.178, it ap pears that no definition or
explanation has been given for treating a
university or educational institution as
‘not operated commercially’.
--------------------------------------------
--------------------------------------------
Thus, considering the meani ng of
‘commercially activity ’ as discussed
hereinbefore, it is evident that the
expression of the words ‘not operated
commercially’ is vague and it may carry
meaning in favour or against the assesses
i.e. both ways. When there is doubt, an
interpretation w hich is favourable to the
subject should be preferred .-National Board
of Revenue vs. Bata Shoe Co., 42 DLR (AD)
105. When a particular provision is
susceptible of two or more interpretations,
that one most favourable to the citizen must
accepted.-Commissioner of Customs vs.
Customs, Excise & VAT Appellate Tribunal, 8
BLC 329. It is a settled principle of law
that when the provision of a fiscal law
carries different meaning, in such case, the
benefit of it will go in favour of the
citizen i.e. the assesse e-university/the
assessee-college.
Question (ii) is about the requirement of
certificate or exemption letter issued by
Tax Authority to get exemption from payment
of income tax.
--------------------------------------------
--------------------------------------------
The learned Deputy Attorney General failed
to show before us that there is any legal 13
requirement to issue a certificate by the
Tax Authority or exemption letter to be
produced in order to get the benefit of SRO
No.454 read with SRO No.178.
--------------------------------------------
--------------------------------------------
In the result, our answer to questions (i)
and (ii) as re -formulated by us are decided
in the negative in favour of the assesse e-
applicants and against the department -
respondent.”
Thereafter, this Division vide order dated 06.02.2017
in Civil Petition for Leave to Appeal No s.1896-1900 of
2015 upheld the said judgment and order dated 14.05.2015
passed by a larger Bench of the High Court Division in
Income Tax Reference A pplication Nos.159 to 162 of 2011
and 511 of 2004.
It appears that the issue of the prese nt appeal and
the issue involved in Income Tax Reference Application
No.159-162 of 2011 and 511 of 2004 are identical. Both
relates to tax -exemption under SRO No.454 -L/80 dated
31.12.1980 read with SRO No.178 -Income Tax/2002 dated
03.07.2002 and also relates to the same assessment year
i.e. 2004-2005. 14
It is mention ed earlier that, the Income Tax
Reference Application Nos.159-162 of 2011 and 511 of 2004
[reported in 2017 11 ALR (HCD) 6 ], has been settled by a
larger Bench of the High Court Division which is
maintained by this Division in Civil Petition for Leave
to Appeal Nos.1896 -1900 of 2015 vide order dated
06.02.2017.
It is true that the words ‘operated commercially’ or
‘not operated commercially’ have not been defined in the
Income Tax Ordinance, 1984 or the Rules made thereunder.
It also appears from the Notification, SRO No.178 -Income
Tax/2002 dated 03.07.2002, that no definit ion or
explanation has been given for treating a university or
educational institutions as ‘not operated commercially’.
As such , we are in agreement with the order dated
06.02.2017 passed by this Division in Civil Petition for
Leave to Appeal Nos.1896 -1900 of 2015 affirming findings
of the larger Bench of the High Court Division passed in
Income Tax Reference Application Nos.159 -162 of 2011 and
511 of 2004. 15
We do not find any reason to deviate from the
findings of th e larger Bench of the High Court Division
passed in Income Tax Reference Application Nos.159-162 of
2011 and 511 of 2004 which concurred by this Division in
Civil Petition for Leave to Appeal Nos.1896-1900 of 2015.
The judgment and order of the High Court Division so
far it relates to answer s the Question Nos. (i)-(vi) are
set-aside i.e. we affirmed the answers of the Question
Nos.(i)-(vi) in affirmative. And the answers of the High
Court Division relating to answer s of the formulated
Question Nos.(vii) and (viii) are maintained i.e. we also
affirmed answers of the Question Nos.(vii) and (viii).
Distinguishable facts of the instant Civil Appeal No. 74 of
2007 from the facts of other Civil Appeal Nos.111-155 of 2021.
Instant Civil Appeal No. 74 of 2007 was analogously
heard with other Civil Appeal Nos. 111-155 of 2021 by this
Division. But the facts and p oint of law involved in the
Civil Appeal Nos. 111-155 of 2021 are different from
instant Civil Appeal No.74 of 2007.
The appellant university of this Civil Appeal No. 74
of 2007 challenged the decision of the High Court 16
Division relating to the Assessment Y ear 2004-2005, when
Clause 1(a) (3) of the said SRO dated 31.12.1980 (as
amended by the SRO dated 03.07.2002) was in f ull force of
law. The appellant university of the Civil Appeal No.74
of 2007 asserts that the university is entitled to tax
exemption for the Assessment Year 2004 -2005 under the
prevailing law which is Clause 1(a)(3) of the said SRO
dated 31.12.1980 (as amended by the SRO dated
03.07.2002).
Whereas the rest of the Civil Appeal Nos. 111-155 of
2021 do not essentially involved whether the respective
universities are entitled to exemption under the said
Clause 1(a)(3) of the said SRO dated 31.12.1980 (as
amended by the SRO dated 03.07.2002) . In the Civil Appeal
Nos.111-155 of 2021, the respective universities
challenged the authority of the Government to revoke the
said exemption under Clause 1(a)(3) of the said SRO dated
31.12.1980 (as amended by the SRO dated 03.07.2002). The
said exemption under Clause 1(a)(3) of the said SRO dated
31.12.1980 (as amended by the SRO dated 03.07.2002) was
revoked or rescinded or abolished by dint of the SRO 17
No.156-Ain/Income Tax/2007 dated 28.06.2007 and the
respective university also challenged the authority of
the Government ex empting the private universities from
tax to the tune of 10 % by way of reducing the liability
to pay tax to the tune of 15 % under the SRO No.158 -
Ain/Income Tax/2007 dated 28.06.2007. Moreover, the tax
assessment years involved in the said Civil Appeal
Nos.111-155 of 2021 are all related to tax assessment
years when the said Clause 1(a)(3) of the said SRO dated
31.12.1980 (as amended by the SRO dated 03.07.2002) was
not in force. Hence, the points of law as well as facts
of instant Civil Appeal No.74 of 2007 are distinguishable
and different from Civil Appeal Nos.111-155 of 2021.
Accordingly, the civil appeal is disposed of.
No order as to costs.
J.
J.
J.
J.
The 27th February, 2024.
Jamal/B.R./Words-*3023*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CRIMINAL APPEAL NO. 92 OF 2023
(From the Judgment and order dated 12.10.2023 Passed by
High Court Division in Contempt Rule No. 53467 of 2023)
Mr. Sohel Rana ....Appellant
-Versus-
The state and others ....Respondents
For the Appellants
: Mr. Probir Neogi, Senior Advocate
with Mr. Shah Monjurul Hoque,
Senior Advocate instructed by M s.
Shahanara Begum , Advocate -on-
record
For Respondent No. 1
: Mr. Mohammad Saiful Alam , AAG
(appearing with the leave of the
Court)
For Respondent Nos.
2-3
: Not represented
Date of Hearing : 05.12.2023 and 06.12.2023
Date of Judgment : 06.02.2024
J U D G M E N T
Md. Ashfaqul Islam, J: This criminal appeal is preferred
against the judgment and order dated 12.10.2023
passed by the High Court Division in Contempt Rule
No. 53 467 of 2023 making the Rule absolute,
convicting the appellant for Contempt of Court and
thereby sentencing him to suffer simple imprisonment
for 30 ( thirty) days and to pay a fine of taka 2
5,000/- (five thousand) in default, to suffer simple
imprisonment for 30(thirty) days more.
Facts, in short , are that upon an application
under Section 561A of the Code of Criminal Procedure
the proceeding of Kotwali Police Station Case No. 87
dated 27.03.2017 corresponding to G.R No. 320 of 2017
(Kotwali), pending in th e Court of Chief Judicial
Magistrate, Cumilla was challenged before the High
Court Division. Upon hearing the High Court Division
issued Rule and at the same time stayed all further
proceedings of the aforesaid criminal case for a
period of 06 (six) months. Subsequently, the order of
stay was extended till disposal of the Rule.
The Chief Judicial Magistrate, Cumilla, appellant
herein defying the order of stay passed by the High
Court Division proceeded with the said case and
framed charge against the accused petitioners.
After noting the aforementioned facts and finding
the appellant's explanation unsatisfactory, the High
Court Division proceeded to issue a contempt rule
against him. 3
The High Court Division found contemnor, Mr.
Sohel Rana guilty of gross contempt of Court and made
the Rule absolute by convicting and sentencing him as
aforesaid.
It is noted that knowing fully about the order of
stay of the High Court Division the appellant
proceeded with the aforesaid case pending before him,
fixed dates, on e after another, for charge hearing,
took hajir a (appearance) of the accused and gave
undue pressure upon the accused to bring the result
of the Rule pending before the High Court Division
and lastly, framed charge against the accused
petitioner and at the same time declared another
accused fugitive and then fixed the case for
recording evidence. All those seemingly overzealous
orders were undoubtedly prejudicial to the accused of
the case and were passed in clear violation of order
of stay of the High Court Division.
The appellant, having served as Chief Judicial
Magistrate for several years following a promotion to
Additional District Judge, has accumulated extensive 4
experience in judicial matters over the years.
Therefore, he cannot be regarded as a juni or officer
lacking in experience. However, his actions in the
pending criminal case, as evidenced by his written
explanation, statement, and affidavit seeking
apology, indicate a deficiency in judicial
temperament. Despite his experience, he has
repeatedly committed acts of contempt against the
High Court Division and has persisted in justifying
his behavior.
Form above facts, we find with pain not pleasure
that the appellant has shown wanton disregard,
disrespect, defiance and disobedience in the
implementation of the order of the High Court
Division. Such conduct of the appellant is short of
anything but contumacious. By his conduct he tried to
bring down the authority and majesty of the Supreme
Court in the estimation of the people particularly
those who are coming to this court for redress, so to
say justice. His disregard, defiance and disobedience
to the command and his intention to flout the order 5
of the High Court Division is so deliberate and
contumacious that he does not deserve any mercy or
leniency. His conduct is devoid of any compunction.
Bewildered with severe grief and resentment we
encountered one of the most unprecedented and unusual
instance of criminal act of contempt that was
perpetrated violating the order of stay of the High
Court Division. It came as shock when we found that
in a most abrupt, rather I would put that in an
unexpected manner, the contemnor before us has made
obnoxious order defying the order of the High Court
Division which the said contemnor was
constitutionally bound to comply with.
It is not the case of the appellant that he
misunderstood the order of the High Court Division or
there is ambiguity therein. Because, he did not say a
single word that the court’s order was unclear and
ambiguous.
The trivia and tradition of the Supreme Court are
well identified and preserved. One should not forget
that the hands of the Courts are long enough to catch 6
hold of wrong doers wherever they hide. This is an
unfettered and inherent right attached to the Court.
In addressing the gravity of the situation where
a judge of the subordinate judiciary has
intentionally disobeyed the order of the Apex Court,
the Appellate Division of the Supreme Court of
Bangladesh must exercise its authority with
unwavering diligence. The sanctity of judicial orders
and the integrity of the legal system demand nothing
less than a resolute response to such defiance.
The contemnor before us has rendered
unconditional and unqualified apology. In accepting
the apology offered by the convicted contemnor, the
Appellate Division must emphasize the paramount
importance of respecting and implementing judicial
directives without reservation or hesitation.
Therefore, while extending clemency to the
convicted contemnor, this Division delivers a stern
admonishment to serve as both a reminder and a
warning. This admonishment serves not only to remind
the individual judge of their solemn duty but also to 7
reaffirm the collective obligation of the entire
subordinate judiciary to honor and implement the
directives of t he Apex Court without reservation or
equivocation.
Hence, we hereby absolve and exonerate the
contemnor, Mr. Sohel Rana. Nevertheless, it is
crucial to issue a strong admonition, underscoring
the significance of adhering strictly to directives
from the hi ghest court in the country. It is our
expectation that this incident serves as a lesson for
all judicial officers, reaffirming the principle that
the authority of the judiciary must be respected and
upheld at all times.
Since this is the First Offence of the appellant
and he has solemnly promised never to do any act of
omission in defiance of or in disobedience to any
order of the Supreme Court we have taken a view and
seriously censor and w arn him for his conduct and if
he rep eat such kind of act in futur e he will be
severely dealt with. 8
In the light of the above observations , this
appeal is disposed of . The impugned judgment and
order passed by the High Court Division is hereby set
aside.
CJ.
J.
J.
J.
J.
The 04th February,2024
/Ismail,B.O./*5879*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO. 138 OF 2009
(Arising out of C.P No. 819 of 2007)
Md. Abdul Hanif @ Abu Hanif and others .... Appellants
-Versus-
Bhupen Nath and others ....Respondents
For the Appellants
: Mr. Md. Nurul Amin, Senior
Advocate instructed by Mr.
Mohammad Ali Azam , Advocate-
on-record
For Respondent Nos. 3, 4,
5(a), 5(b)(i) -5(b)(iii),
5(c) and 5(d)
: Mr. Md. Firoz Shah ,
Advocate-on-record
For Respondent Nos. 1-2,
5(b) and 6-8
: Not represented
Date of Hearing : 23.04.2024 and 24.04.2024
Date of Judgment : 25.04.2024
J U D G M E N T
Md. Ashfaqul Islam, J: This appeal is directed against the
judgment and order dated 20.03.2007 passed by the High
Court Division in Civil Revision No. 4076 of 2000
discharging the Rule affirming the judgment and decree
dated 29.06.2000 passed by the then Subordinate Judge, 1st
Court, Pabna in Title Appeal No.28 of 1992 reversing
those dated 05.10.1991 passed by the Assistant Judge,
Sathia, Pabna in Other Suit No.40 of 1990 decreeing the
suit. 2
The present appellants , the petitioners in civil
revision were impleaded as parties in the lower appellate
Court.
The aforesaid suit was filed for declaration of title
and confirmation of possession over the suit land.
The case of the plaintiffs, in short, is that the
land in CS Khatian No. 300 belonged to Bhim Sarder, who
died leaving son Padda Sarder. Due to arrear of rents the
landlord Binode Bihari Shaha and others filed rent suit
in the Court of the then Munsif, Pabna against Padda
Sarder for realization of rent for the years 1360 -62 B.S.
and subsequently he paid rent to the Landlord and got
"Dakhila". At the time of preparation of S.A. record
Padda Sarder became blind and his 3 sons i.e the
plaintiffs were minor. As a result the suit land was
recorded in the name of Shorot Shundori. That record was
wrong. The plaintiffs have been possessing the suit land
and the defendants have no right, title and possession in
the suit land. The plaintiff No. 1 went to Ataikula
Tahsil Office in the 1st part of Poush 1383 B.S. for
payment of rent and came to learn that the suit lan d was 3
not recorded in their name, and the defendant s claimed
the suit land. Hence the suit was filed.
The defendant Nos. 2 and 3 contested the suit by
filing written statement wherein they admitted the right,
title, interest and possession of the suit land by Bhim
Sarder.
The defendants, in their written statement,
acknowledged Bhim Sarder's possession and Padda Sarder's
subsequent ownership. They also mentioned that Padda had
mortgaged the property in the year 1928 to one Irad Ali
Matbar and took Taka 100/ -. Irad Ali Matbar later
acquired possession of the land through auction since
Padda defaulted on repayment. After obtaining possession,
Irad Ali Matbar transferred the property to Shorot
Shundori. Shorot Shundori, who designated the property as
her Stridhan, subsequently passed away, leaving her son,
Shatin Chandra, as the heir. During her exclusive
possession, Shorot Shundori transferred the land to her
daughter, Sushila Bala's three sons: Dulal, Bhupen, and
Paritosh on 13.05.1970 and delivered possession . T hey
started possessing the suit lands. Dulal died leaving his 4
mother Sushila Bala and two brothers Bhupen and Paritosh
who continued to possess the suit land since then.
The trial Court decreed the suit, leading to an
appeal being Title Appeal No. 28 o f 1992. The lower
appellate Court reversed the decision, prompting the
respondents to seek recourse in a civil revision before
the High Court Division. The High Court Division upheld
the lower appellate Court's decision, leading to the
present appeal.
Mr. Md. Nurul Amin, the learned Senior Advocate for
the appellants argue s that Padda Sarder filed
Miscellaneous Case No.36 of 1941 for setting aside
auction followed by a compromise as evident by exhibit C1
but the Court of Appeal below and the High Court Division
made out a third case that Padda Sarder made a compromise
with Irad Ali admitt ing the auction and thereby erred in
law in discharging the Rule.
He further argues that the Court of Appeal below
committed an error of law for taking into consideration
Exhibit-C1 without noticing that no amendment was made in
the pleading in respect o f the same in violation of 5
provisions of Order 6 Rule 7 of the Code of Civil
Procedure.
Next he submits that the plaintiffs' witnesses PW -1
to P W-6 proved the plaintiffs' cas e. Moreover, defenc e
witness DW-2 also in his examination -in-chief stated
" and in cross-examination deposed that
". But the High Court Division did not
at all consider this vital evidence and also violated the
mandatory provisions of law without discussing any
evidence.
Lastly, he submits that even the case of the
defendants is taken to be true in its entirety; the
compromise decree in Miscellaneous Case No. 36 of 1941 is
not adm issible in evidence as because the same is not
registered under Section 17(2)(VI) of the Registration
Act.
On the other hand , Mr. Md. Firoz Shah, the learned
Advocate-on-record appearing for the respondents made his
submissions supporting the decision of the High Court
Division. He contends that the continuous possession by
the plaintiffs as the heirs of Padda Sarder was not
proved. He further submits that the plaintiffs produced 6
rent receipts of the year of 1385 and 1387 BS but they
failed to produce rent receipts ranging from the year of
1362-1385 BS. Moreover , the plaintiffs did not produce
the nephew of Padda, Rupendranath whose testimony was
very much important as he was in possession of the suit
land on behalf of Padda Sarde r well before the advent of
the plaintiffs in the scenario as the heirs of Padda
Sarder.
He further submits that there is an anomaly in as
much as the plaintiffs claim that they paid the rent for
the suit land as aforesaid but they came to know about
the so -called wrong SA khatian l ater in 1383 BS.
Therefore, the suit is barred by limitation as not being
filed in due time.
He also submits that SA khatian was rightly recorded
in the name of Shorot Shundori as Padda Lal Sarder waived
the claim of the suit land through clause 3 of the
solenama submitted in the Mortgage Suit No. 36/41 filed
in first Munsif Court of Pabna acknowledging the
possession of Irad Ali.(Exhibit C1). After the compromise
decree dated 24.4.42 the claim of Padda Lal Sarder does
not exist on the suit land as the same was waived and 7
duly recorded in the name of Shorot Shundori, the mother
of the defendants.
We have h eard the learned Advocates of both sides
and gone through the judgment s of the Courts below. We
have also perused the evidence on record.
PWs 1-6 deposed confirming the title and possession
of the plaintiffs . Moreover, DW-2 also stated in his
examination-in-chief that " and in
cross-examination stated that ". This
vital aspect o f the evidence of PWs which was also
supported by the defenc e witness No. 2 has a positive
evidential value on the question of possession of the
plaintiffs in the suit land which escaped notice of the
High Court Division.
The defendants’ endeavor to put forward exhibit C1 on
record was erroneous since the same was not in their
pleadings as opposed to Order 6 Rule 7 of the Code of
Civil Procedure.
In the case of 5 BLC AD 108 this Division observed:
“Neither from the averments made in the plaint that
the plaintiff claimed the property in suit as a vested
property nor the learned Subordinate Judge held that the 8
property was a vested property but in spite of absence of
such averments and finding the learned Judges of the High
Court Division have made out a third case in holding that
the property is a vested property which is wrong.”
As already we have mentioned that the consideration
of exhibit C1 by the lower appellate Court was not in the
written statement of the defendant s. Hence, it offends
the provision of Order 6 Rule 7 of the Code of Civil
Procedure which enjoins that the new grounds of claim
those are absent in pleadings should not be allowed to
raise without amendment of pleadings. This statutory
provision of law has been designed as a safeguard so that
one cannot be taken by surprise by the other side at the
time of trial.
The most significant issue of the instant case is
that the trial Court as well as the lower appellate Court
both had recognized that the RS Khatian have been rightly
prepared in the name of the plaintiffs. It is written in
the judgment of the trial Court:
“
9
”
On the other hand lower appellate Court also found:
“
”
The presumption of correctness as to CS record of
rights is not certainly available with regards to the
state acquisition Khatians in pursuance of the provisions
under Section 103(B) of the Bengal Tenancy Act but
subsequently by an amendment in the year 1967 , section
144A was incorporated in the State Acquisition and
Tenancy Act. It is reproduced below:
“Every entry in a record -of-rights prepared or
revised under section 144 shall be evidence of the matter
referred to in such entry, and shall be presumed to be
correct until it is proved by evidence to be incorrect.”
Notably, both the provisions as contemplated in
Section 103(B) of the Bengal Tenancy Act (in respect of
CS Khatian) and Section 144A of the State Acquisition and
Tenancy Act (in respect of RS Khatian) are rebuttable, 10
that is to say, every entry in the Khatians, as the case
may be , shall be presumed to be correct until it is
proved by evidence to be incorrect.
The thrust and the gravamen of the instant case
invariably relates to the question of the entry of the
plaintiffs’ names in the RS Khatian.
In the instant case admittedly RS Khatian was
prepared in the name of plaintiffs. The trial Court as
well as the Appellate Court below clearly mentioned and
admitted regarding the same. We don’t find any positive
steps that have been taken to dislodge the s aid
presumption of correctness from the record, only a feeble
attempt was made by the Court to that effect in its
observations which is as under:
“
”
Therefore, the plaintiffs ’ names in the RS Khatian
stand correct. Certainly this piece of evidence though
rebuttable could not be rebutted by the defendants in due
course. 11
Let us now glean some relevant authorities on the
point:
In the case of Halima Begum vs. Syed Ahmed 21 DLR 854
his lordship Nurul Islam, J observed:
“It is true that record of right indicates
certain right of certain parties but that right
is certainly dependent on some material
evidence, oral and documentary so as to
establish title in favour of persons who claim
under the said record of right. The presumption
of correctness as to CS record of right is not
certainly available with regard to the State
Acquisition Khatians. There is no presumption of
correctness in respect of the State Acquisition
Khatians as it is to be found in case of CS
khatians in pursuance of the provision under
section 103-B of the Bengal Tenancy Act.”
In the case of Government of Bangladesh vs. Tenu Miah
Tofadar 14 LM AD 30 it was observed:
“If we gle an the said provision it transpires
that a finally published record of rights
revised under Section 144(A) of the State
Acquisition and Tenancy Act has a presumption of
correctness and that presumption continues till
it is otherwise rebutted by a reliable evidence.
This proposition of law is well settled. The
oldest record of rights being the cadastral 12
survey prepared under section 103(B)(5) of the
Bengal Tenancy Act (Act No. VIII of 1885) also
got a high presumptive value as to correctness
of entries therein as it has also been enjoined
under section 144(A) of the State Acquisition
and Tenancy Act. Of course this is a rebuttable
peace of presumption, if it has been so rebutted
by evidence. Since the entry of the land in
question as per the State Acquisition and
Tenancy Act recorded in the name of the
government as land, in the absence of any
positive evidence oral and documentary onus was
upon the plaintiff to discharge the presumption
proving the same to be wrongly recorded in the
record of rights bereft of which title and
interest cannot vest upon the plaintiff. The
case of Government of Bangladesh vs. A.K.M Abdul
Hye 56 DLR AD 53 is an authority on this issue.
The decision of High Court Division is totally
devoid of consideration of all these settled
principles of law adversely reversing the lower
appellate Court's judgment committing a palpable
wrong which required to be intervened by this
Division.”
In the case of Md. Hossain vs. Dilder Begum 9 MLR AD
361 it was observed:
“Being aggrieved the petitioners moved the High
Court Division in its revisional jurisdiction in 13
Civil Revision No. 176 of 1990 and obtained a
rule which was discharged and the learned Single
Judge of the High Court Division by his judgment
and order dated 23.05.1999 rejected the
application on the finding that the RS khatian,
exhibit-1, has been prepared in the name of the
predecessors of the plaintiffs to the extent of
1/3rd share and the name of the predecessors of
the defendant petitioners to the extent of 2/3rd
shares. The learned sin gle judge observed that
though there is conflict between the CS and RS
khatians the RS khatian will prevail over the
former.”
The case of the Chief Engineer, Roads and Highway
Directorate vs. Asaduzzaman Siddique 69 DLR AD 440 also
echoed accordingly on the point.
The decision also highlighted:
“Referring the explanation of the Judicial
Committee of Privy Council on the nature of an
entry in a record of right in the ensuing words-
"A record of rights has been described by Sir
Henry Maine as a detailed stat ement of all
rights in land drawn up periodically by the
functionaries employed in setting the claims of
the Government to its shares of the
rental........ Though it does not create a 14
title, it gives rise to a presumption in its
support, which prevails until its correctness is
successfully impugned."
To sum up , we have found that the Court of Appeal
below put special emphasize as to how the defendants
proved their case ignoring the plaintiffs ’ steps of
proving the same on evidence. The law enjoins it is th e
bounden duty of the Court to discuss first how the
plaintiff proved its case to the hilt. In a judicial
proceeding, where all souls solicit justice equally and
are entitled to the same, the plaintiff usually has to
prove its case. In this situation, the plaintiffs ’
ownership of the land is backed by official records more
specifically the RS record of rights. But when the case
went to the lower appellate Court in the appeal, it
didn't give enough importance to these records. E ven
though the lower appellate Court acknowledged the
plaintiffs’ rights supported by the unchallenged RS
record of rights, it didn't impartially and objectively
handle the proceedings to rectify the true ownership of
the suit land. We acknowledge that in the realm of 15
judicial proceedings related to land rights, where the
plaintiff bears the weight of proof, the sanctity of RS
records serves as an unwavering beacon of truth as
cemented by the section 144A of the State Acquisition and
Tenancy Act. We also re cord, since the matter has been
decided to the hilt as aforesaid , question of
registration of solenama (exhibit C1) has become
redundant.
Another point is the question of limitation as
raised. The question of limitation is a mixed question of
fact and law. The submissions of the learned counsel for
the respondents on the question of limitation have no
legs to stand. T he lower appellate Court, in this regard
remained oblivious and for that reason we are of the view
that no deliberation is required to address the point.
The High Court Division absolutely treading on a
wrong premise overlooked all these aspects holding the
decisions of the lower appellate Court to be correct.
Accordingly, this appeal is allowed. The judgment and
order passed by the High Court Division and the lower 16
appellate Court is set aside. The judgment of the trial
Court is restored.
J.
J.
J.
J.
The 25th April, 2024
/Ismail,B.O./*2836*
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