Professional Documents
Culture Documents
Department of Law
Z. H. Sikder University of Science and Technology
1. Introduction
The subject of legal History comprises the growth, evolution and development of the legal system
of a country; it sets forth the historical process where by a legal system has come to be what it is
over time.The subordinate courts in Bangladesh are one of the two tiers of the court system in
Bangladesh and the other tier is the Supreme Court (which has been discussed earlier).The
subordinate courts are located in different districts and metropolitan areas across Bangladesh. All
the subordinate courts are under the authority or supervision of the Supreme Court of
Bangladesh that is, all the subordinate courts of Bangladesh are subservient or subjugated to the
Supreme Court of Bangladesh. There are a wide variety of subordinate courts, such courts are
the creatures of statutes. Their powers, Functions and jurisdictions are also determined by the
respective statutes.
3. Pecuniary Jurisdiction:
The Assistant Judge Court, the Senior Assistant Judge Court, and the Joint District Judge Court
are barred by the pecuniary jurisdiction.
The Assistant Judge Court may not take any suit of value (TK. One to Two Lac).
The Senior Assistant Judge Court may not take any suit of value (TK. Two Lac one to
Four Lac).
The Joint District Judge Court may take any suit of value (TK. Above 4 Lac one to
).
It is an established rule that every suit of every value firstly has to be instituted in the lower
grade court of its jurisdiction.
4. Jurisdiction of subject-matter
The Civil court may take every suit of Civil nature and the other cases which are not
specifically declared as criminal nature.
5. Territorial Jurisdiction
Where the subject matter of the Civil suit is an immovable property, then in which jurisdiction
of district it as situated, the suit must be instituted in the district Courts at the district.
If the Immovable property is situated between the middle of two or more districts the suit may
be institute at any of the district Courts of such districts.
If the Movable property is situated in such a manner it is impossible to identify where districts
part it is in the suit may be instituted at any district court of any district nearest it.
If the subject matter of the suit is movable property the suit may be instituted in the following
any district court of nay district
a. Where the cause of action arise
b. The residence of the defendant
c. The residence of the plaintiff
6. Original Jurisdiction
The Assistant Judge Court, The Senior Assistant Judge Court, The Joint District Judge Court
and The High Court Division of Supreme Court has original jurisdiction because only they can
take a fresh suit.
7. Appellate Jurisdiction:
The Additional District Judge Court, The District Judge Court, The High Court Division of
Supreme Court and Appellate division of Supreme Court has appellate jurisdiction, because
they can take appeal from their subordinate Courts.
8. Reference Jurisdiction:
Reference is excusive jurisdiction of the High Court Division. It normally means referring to
a case to the High Court Division for its opinion and order.
Section 113 of the CPC provides that any court may state a case and refer the same for the
opinion of the High Court Division, and the High Court Division may make such order there
on as it my think fit.
9. Revision Jurisdiction:
Revision is a purely discretionary remedy granted by a higher court with a view to correcting
miscarriage of justice.
Under section 115 of the CPC (as amended in 2003) Civil Revisional power can be exercised
by the High Court Division and The District Judge.
This power is also called supervisory power or power to do complete justice or power to call
for records. Exercise of this power can be only at the instance of a party. Previously this power
could have been exercised sue notice by the High Court Division.
Normally questions of facts are not considered by a court under its revision jurisdiction. [15
BLD 196]
A revision is not a continuation of the original preceding like an appeal. [22 DLR 192]
Circumstances Review is possible almost in every judicial organ. It is done by the same court
which gave the order or judgment against which review is sought for. Section 114 of the CPC
provides that it a person is aggrieved
1. By a decree or order from which an appeal is allowed but no appeal has been
preferred.
2. By a decree or order from which no appeal is allowed
3. By a decision or a reference from a court of small causes
May apply for a review of judgment to the court which passed by the decree or made the order
and the court may make such order thereon as it thinks fit.
Writ Jurisdiction means the power and Jurisdiction of The High Court Division (HCD) under
the provision of the Constitution whereby it can enforce fundamental rights as guaranteed in
the Constitution. The basis of writ Jurisdiction is Article 102 of The Constitution.
Inherent Jurisdiction is one of the vital and extraordinary powers of the Civil court. All Civil
court from Appellate division to Assistant Judge may exercise this power at any time of a suit.
Basically it is the discretionary power of the judges which depends on the satisfaction of the
judges and regulated by under section 151 of the Code of Civil Procedure 1908.
Supervisory power of the High Court Division (HCD) includes the control exercised by this
Courts as to prohibit the subordinate Courts from acting extra jurisdictionally and reverse its
acting extra jurisdictionally acts Article 109 of our Constitution recognizes such power of the
High Court Division (HCD).
Note:-
Double Capacity: The District Judges have Double Capacity. Sometimes, every District Judge
is appointed as a Session Judge as well, to adjudicate Criminal matters in any Sessions
Division.
The idea of exclusive jurisdiction has been formulated as the opposing principle to that of
concurrent jurisdiction if refers to the solely held ability of a court to scur rulings some legal
matter and to block or their courts from doing so. On the otterhound, the concurrent jurisdiction
concept allows for a single legal matter to come under then one judicial decision making body.
so a different courts will have the same jurisdiction over the same subject matter at the sometime
under this jurisdiction.
General Jurisdiction intends to all cases comprised within a class or classes of causes special or,
limited jurisdiction, on the or there hand is jurisdiction which is confined to special. Particular or
limited causes.
Impounding jurisdiction means to define, clarify and explain jurisdiction. Expanding jurisdiction
means to expand, enlarge or extend the jurisdiction. It is the duty of the court to expound its
jurisdiction. It is, however, not proper for the court to expand its jurisdiction.
23. General principles regarding jurisdiction:
a) civil courts have jurisdiction to try any suit of civil nature enact where its cognizance is abrade
either expressly or impliedly.
b) If any civil court passed any decree without jurisdiction, the validity of such decree can be
challenged at any stage of the proceedings, in evection proceeding or ever in collateral
proceedings
The idea of inclusive jurisdiction has been formulated as the apposing principle to that of
concurrent jurisdiction if refers to the solely held ability of a court to scurf rulings a some legal
matter and to block or ther courts from doing so. On the urethane the concurrent jurisdiction
concept allows for a single legal matter to come under then one judicial decision making body.
so a different courts will have the same jurisdiction over the same subject matter at the some time
under this jurisdiction.
General Jurisdiction intends to all cases comprised within a class or classes of causes special or,
limited jurisdiction, on the or there hand is jurisdiction which is confined to special. Particular or
limited causes.
Impounding jurisdiction means to define, clarify and explain jurisdiction. Expanding jurisdiction
means to expand, enlarge or extend the jurisdiction. It is the duty of the court to expound its
jurisdiction. It is, however, not proper for the court to expand its jurisdiction.
(1) Appeal is a legal right of a party but revision depends on the discretion of the Court, therefore
it cannot be claimed as a matter of right.
(2) An appeal may lie on the point of law as well as on facts but a revision generally lies on the
question of law only.
(3) In case of appeal, the appellant is heard, but it is not necessary in case of a revision petition.
(4) In case of appeal, the Appellate Court can neither increase the sentence nor pardon the
appellant but both these are possible in case of revision.
(5) In appeal, the higher court may convert discharge of the accused into his conviction but this
cannot be done in case of revision.
(6) The courts have extensive powers of interference in criminal appeals but the power of courts
is very limited in revision.
(7) There is only one procedure involved in appeal but there are two procedures involved in case
of revision, i.e., preliminary and final.
1 C.K. Takwani: Civil Procedure with Limitation Act, 1963, Ed. 7th.p.44
2
rule, this applies to issues that are not apparent in the record of the case itself (such as when an
attorney fails to investigate a possible defense).
Any one of the following reasons, for example, may prohibit an appeal (and justify a writ):
The defense did not lodge a timely objection at the time of the alleged injustice (but
should have).
A final judgment has not yet been entered in the trial court, but the party seeking the writ
needs relief at once to prevent an injustice or unnecessary expense.
The matter is urgent. (Writs are heard more quickly than appeals, so defendants who feel
wronged by actions of the trial judge may need to take a writ to obtain an early review by a
higher court.)
The defendant has already lodged an unsuccessful appeal (defendants may file multiple
writs but the right to appeal is limited to one). But filing a writ that simply mimics an
unsuccessful appeal is a frivolous writ and will be dismissed immediately.
30. Conclusion
The High Court Division of the Supreme Court of Bangladesh shall have such original,
appellate and other jurisdictions and powers as are conferred on it by this constitution or any
other Law. The appellate and revision Jurisdiction of this Division is conferred by the Code of
Civil Procedure, the Code of Criminal Procedure and Some other special laws. This Division
shall have superintendence and control over all courts subordinate to it, and the law declared
by that division shall be binding on a courts subordinate to it. The High Court Division has
limited Original jurisdiction only in the matter of company, admiralty and writ or
Constitutional Matters. If the fundamental rights of any person are violated then he is entitled
to get legal remedy under the writ jurisdiction of the High Court Division of The Supreme
Court by issuing writ.
Res sub-judice and Res judicata
Introduction
Section-10 deals with the doctrine of res sub-judice and Section-11 deals with the doctrine of res
judicata. Section 10 provides the rule with regard to stay of suits where things are under
consideration or pending adjudication by a court. On the other hand, section-11provides rule
relates to a matter already adjudicated. It bars the trial of a suit or an issue in which the matter
directly and substantially in issue has been adjudicated upon in a former suit. Sections 10 an
11are mandatory.
Court cannot apply this section where point at issues are distinct and different,67 or even
where there are some issues in common and others are different issues'68 This section is also
not applicable between the suits where although the parties are same' but the issues are not the
same.
Court may use its inherent power to stay of suit' Although the provision of section 10 is
mandatory' but this provision has not taken away the court's inherent power under 151 so as to
stay the proceedings on the facts and circumstances of a given case to secure the ends of
justice where section 10 is not applicable. Therefore, court may use its inherent power to
secure the ends of Gil" when section-10 is not applicable' even to prevent abuse of court, court
may stay former suit by applying its inherent Power.
Example:
A sues B, C and D' and in order to decide a claim of the court has to interpret a will. The
decision regarding interpretation of the will. Operate as res judicata in any subsequent suit by
any of the defendants against the rest. Rule of res judicata shall also be applicable between co-
plaintiffs. The rule of res judicata applies in a case of co-plaintiffs, if the following conditions are
satisfied.
Interpretation
The doctrine of res judicata should be interpreted and applied liberally. Since the rule is founded
on high public policy and upon the need of giving finality to judicial decisions, a strict and
technical constitution should not be adopted. In deciding whether the doctrine would apply, its
substance and not the form should be considered.
In Rural Litigation and Entitlement Kendra v. State of U.P. it was held on this aspect:
The writ petitions before us are not inter-party disputes and have been raised by way of public
interest litigation and the controversy before the court is as to whether for social safety and for
creating a hazardless environment for the people to live in, mining in the area should be
permitted or stopped. We may not be taken to have said that for public interest litigations,
procedural laws do not apply. At the same time, it has to be remembered that every technicality
in the procedural law is not available as a defense when a matter of grave public importance is
for consideration before the court.
The question arose for the first time before the Supreme Court in Amalgamated Coalfields Ltd.
V. Janapada Sabha, AIR 1964 SC 1013, whether the concept of constructive res judicata can be
applied in writ petition or not.
In Devilal Modi V. STO, AIR 1965 SC 1153, Supreme Court clarified the stand and said the
principle of constructive res judicata also applies in writ petition. A direct question, however
arose before the Supreme Court in State of U.P. V. Nawab Hussain, AIR 1977 SC 1680, the Court
held that principle of constructive res judicata is applicable.
It should be noted that the principle of res judicata and constructive res judicata are held not
applicable in Habeas Corpus Petition by Supreme Court in Ghulam Sarwar V. Union of India,
AIR 1967 SC 1335 and in Lallubhai V. Union of India, AIR 1981 SC 728, respectively.
Just as a matter may be res judicata between co-defendants, so also it may be res judicata
between co-plaintiffs, if there is a conflict of interest between plaintiffs and it is necessary to
resolve the same by a court in order to give relief to a defendant, and the matter is in fact
decided, it will open as res judicata between co-plaintiffs in the subsequent suit.
Res judicata between co-defendants
As a matter may be res judicata between a plaintiff and a defendant, similarly, it may be res
judicata between co-defendants and co-plaintiffs also. Adjudication will operate as res judicata
between co-defendants if the following conditions are satisfied.
If the conditions are satisfied, the adjudication will operate as res judicata between co
defendants.
Reference