A Short Note on Pre-emption in Muslim Law and Statutory Laws: Bangladesh Perspective

It was narrated that Jabir ® said: “The Messenger of Allah (ﷺ) said: 'Whoever has a date-palm tree or land, should not sell it until he has offered it to his partner.' ” 

It was narrated from Ibn Abbas ® that the Prophet (ﷺ) said: “Whoever has land and wants to sell it, let him offer it to his neighbor.” 

It was narrated from Jabir ® that the Messenger of Allah (ﷺ) said: “The neighbor has more right to preemption of his neighbor, so let him wait for him even if he is absent, if they share a path.”

Ahadis/Traditions of Prophet of (SM) including the preceding ones are said to be the origin of pre-emption law. Though, the pre-emption is originated from the Hadith of Prophet (SM), the rules of pre-emption have later been included in different laws of Bangladesh. These include the State Acquisition and Tenancy Act, 1950, the Non Agricultural Tenancy Act, 1949 and the Land Reform ordinance, 1984. Pre-emption under Muslim Law along with relevant provisions of above laws are going to elaborated in this write-up.

Meaning of Pre-emption: The word pre-emption is interchangeable with Arabic term Sufa which means conjunction or which is adjacent. In other words, pre-emption means the prior right to purchase the property of others to whom he is either co-heirs or neighbor. Thus, right to pre-emption is the right to receive any transferred property on priority basis.  In such cases, if the seller sells the land to an outsider without giving the news or notice of the sale to, firstly the co-sharers of the land, secondly the co-sharers of a right to way or water and thirdly, neighbor, the land can be re-purchased by the above pre-emptor through filing a pre-emption case in the court. Right to pre-emption is only arises when the sale is complete. Thus, the owner of an immovable property has the right to repurchase a neighbouring property sold to another party. Justice Mahmood describes in the case of Govind Dayal v. Inaytullah (1885)-

“pre-emption as, a right which the owner of certain immovable property possesses, as such, for the quiet enjoyment of that immovable property, to obtain, in substitution for the buyer, proprietary possession of certain other immovable property, not his own, on such terms as those on which such latter immovable property is sold to another person.”

Again, Black’s Law Dictionary defines-

“it as right to set up a prior claim, or the right to gain an advantage before anybody else.”

 Example- “A and B are jointly owners of their houses which are adjacent to each other. B sells his house to C, who may be a stranger for A. Under this pre-emption right, A who is a pre-emptor can legally repurchase that house from C at the same price at which B sold it to C.”

When pre-emption rights arise: Right of pre-emption is a right relating to immovable property. The co-partner's right of pre-emption arises when the immovable property is sold or transferred to a person who is not a co-sharer, including depositing the property. In this case, the right of the pre-emption claimant arises on the day the property is registered and the title is transferred. However, no right of pre-emption arises from donation, Chadaka, waqf, mirash, bequest or lease in perpetuity.

 Pre-emption under Muslim Law:

Who can claim pre-emption? Following three categories of persons can claim pre-emption under Muslim Law- 

1. Co-sharer (Shafi Sharik): The co-sharers or joint-owners of a property can claim pre-emption.

2. Participator in Immunities (Shafi Khalit): Joint owner of easement right e.g., a common way attached to a property can also claim the right to pre-emption.

3. Neighbour (Shafi Jar): Again, neighbors or persons who are the owners of adjacent lands or buildings can claim this right to pre-emption.

The above claimants can demand pre-emption and will have priority over other on the chronological basis.

Procedure for claiming pre-emption: Following three demands are recognized as the procedure to claim pre-emption-

1.  First Demand/Immediate Demand (Talab-i-Mousibat): In this stage, intention to purchase the property should be notified by the pre-emptor immediately after having knowledge of it.

2.   Second Demand/Demand before witness (Talab-i-Mowasid): As the next step, the pre-emptor should make the demand to purchase the property in presence of witnesses.

3.   Third Claim/Legal Claim of Ownership (Talab-i-Tamlik): As the final stage, the pre-emptor has to make the third demand by instituting a suit in a court of law in order to establish his claim legally.

Other Conditions include

1.      In Muslim law it is not necessary to deposit money before filing a pre-emption case. In such cases, the money has to be deposited after the judgment of the case.

2.      A suit of pre-emption under Muslim Law has to be filed in a civil court having pecuniary jurisdiction.

3.      It has to be filed within 1 (one) year of the sale.

Pre-emption in Statutory Laws of Bangladesh: Beside the rules of pre-emption laid down by Muslim personal law, different statutory laws contain provisions relating to pre-emption which are going to be discussed below:

Pre-emption under the State Acquisition and Tenancy Act, 1950: A case has to be filed under section 96 of the State Acquisition and Tenancy Act, 1950 in case of pre-emption of agricultural land. A co-sharer tenant in the holding by inheritance can only bring the claim.  Under present section, in order to file a case, four types of money have to be deposited in the court otherwise the case will be dismissed by the court. The payment includes,

1. The value of the land as mentioned in the Sub Kabla Deed/Sale Deed

2. Compensation at the rate of 25% per annum on the said value

3. 8% annual simple interest on the said value

4. The first purchaser shall direct the deposit of such other money as the Court may deem fit.

Other conditions include-

1.   25% compensation and 8% interests have to be calculated from the date of registry of deeds to the time of filing the case.

2.   In the case of sale of a residential house, there will be no pre-emption case.

3.    The suit has to be filed within

4.    According to section 89 of the State Acquisition and Tenancy Act, 1950, after 3 years from the date of land registry, no suit can be filed claiming pre-emption.

5.      The suit should be filed in a court having pecuniary jurisdiction according to the value mentioned in the sub-payment deed of the land sold.

Pre-emption suit does not run, if

1. Sold land becomes homestead,

2. The land sold is handed over to the seller before the suit for foreclosure is filed,

3. The sale is considered collusive or fraudulent,

4. Property is transferred in terms of exchange or partition,

5. Husband transfers property to wife or wife to husband by will or donation,

6. If heba-bil-ewaz is transferred to the root,

7. Any gift or bequest of three men related by blood conveys the original,

8. Waqf in Muslim law and transfers dedicated to religious or charitable purposes.

Pre-emption under the Non Agricultural Tenancy Act, 1949: Section 24 of the Non-Agricultural Tenancy Act, 1949 deals with right to pre-emption of non-agricultural land. The provisions of this section attract in case of land in a municipal area. Pre-emption in respect of non-agricultural land is only possible under section 24 of the Non-Agricultural Tenancy Act. Section 24 provides that a non-agricultural tenant is transferred, one or more co-sharer tenants of such land may, within four months of the service of notice issued and, in case no notice had been issued or served, then within four months from the date of knowledge of such transfer, apply to the court for such portion or share to be transferred to himself or to themselves, as the case may be. If the plaintiff in such cases does not deposit the sale price (deed value) along with 5 percent of the sale price (deed value) has to be paid as compensation to the court. Additionally, 6.25% interest also has to be calculated and submitted to the court while filing the suit of pre-emption in respect of non-agricultural land.

Pre-emption under the Land Reform Ordinance, 1984: Section 13 of the Land Reform Ordinance, 1984 gives the bargadar the right to Pre-emption in the barga property, which has been sold.

Appeal and Revision: There is scope of appeal against this order under law. Under section 96(12) of the State Acquisition and Tenancy Act, 1950, an appeal can be made against the order of the court in pre-emption cases. But no second appeal can be made against the judgment of that appeal. However, a revision can be filed under section 115 of the Code of Civil Procedure, 1908 against the decision of the first appeal.

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A Guide to Cheque Dishonour Case in Bangladesh: Section 138 of the Negotiable Instruments Act, 1881

 

Dishonour of Cheque:

Three types of instruments i.e. promissory note, bill of exchange and cheque are recognized as negotiable instruments under section 13 of the Negotiable instruments Act, 1881. Section 6 of the said Act defines cheque as “a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand.” In other words cheque refers to an order to a bank to pay some specified amount from the drawer’s account to a bearer or order of the cheque. However, Checks are used for payment of liabilities or debts for various purposes in daily life 

If a cheque is issued by a drawer to pay some amount, the bank is bound to pay the same to the bearer or the order whichever suits. But in many cases, the bank cannot proceed to payment due to insufficiency of balance in the drawer’s account or other default from his part. If the cheque is dishonoured due to insufficiency of balance or any other default of the drawer, he is punishable under law. Section 138 of the Negotiable Instruments Act, 1881 clearly identifies the dishonour of cheque as an offence. 

Sections 138, 140 and 141 of the Negotiable Instruments Act, 1881 contain the rules regarding punishment and other issues of cheque dishonour. Though the cause of action is of civil nature, cheque dishonour is enacted under aforesaid provisions as offence to give the aggrieved person easy, speedy and special remedy for recovering debts as well as to ensure punishment for irregularities made in dealing with cheques. Here is the discussion of cheque dishonour case for making the law students aware of every details of this issue on which a large number of cases are being filed and pending in the concerned courts.

Conditions of Cheque Dishonour Case:

Section 138(1) & 141(c) of the Negotiable Instruments Act, 1881 read with case laws provide some conditions of filing a cheque dishonour case as well as the punishment of this offence. However, the cause of action for filing a case under this section, arises on the satisfaction of following conditions:

• The first and foremost condition for filing a case under this section is that the cheque must be presented to the concerned bank for the encashment within six months from the date of issue by the drawer or within the period of its validity, if the time of drawing is specified, whichever is earlier. 

• The cheque must be 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.

• The drawer has to be served notice to the drawer about the dishonour of cheque within 30 (thirty) days of being dishonoured by the concerned bank.

• If the drawer of the cheque fails to pay the debt or to resolve the issue within next 30 (thirty) days, the cause of action for filing a case under this section will arise.

• After the expiry of above thirty days, the drawee can file a case under this section within 1 month starting from the date of cheque dishonour (section 141(c)). But,  If for any reason a case under section 138 of the Negotiable Instruments Act, 1881 cannot be filed within the stipulated time of 1 month, a criminal case can be filed under Sections 406 and 420 of the Penal Code.

• The cheque must be issued for consideration: Another important stipulation is that if the 'Consideration' for which the check was given is not met or if there is no 'Consideration', the check drawer has no liability. The Appellate Division of the Supreme Court gave a landmark judgment in respect of cheque dishonor in the case of Md. Abul Kaher Shahin Vs. Emran Rashid and another, (14 SCOB [2020] AD) . According to the judgment, “as per Section 43 of the NI Act, a negotiable instrument made, drawn, accepted, indorsed or transferred without consideration, or for a consideration which fails, creates no obligation of payment between the parties to the transaction” Thus, the respondent’s instruction not to encash the impugned cheques does not constitute any cause of action under section 138 of the Negotiable Instruments Act, 1881. The same view was taken into consideration by the Appellate Division in in the case of Mahmudul Hasan Vs The State and another (Criminal Appeal No. 10468 of 2017)

See Details about this point on: Landmark Judgement of the Supreme Court on Dishonour of Cheque: Md. Abul Kaher Shahin Vs. Emran Rashid and another   

Thus the preceding conditions must be complied with before filing a cheque dishonour case.

Punishment:

If the above conditions are satisfied, the person committing the offence of cheque dishonour shall 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 138(1))The holder of the cheque up to face value of the amount realized as fine in such case. (Section (138(2))

Modes of Service of notice: 

No direct suit can be filed without sending a notice in any way as stipulated by section 138(1) of the NI Act, 1881. Section 138 (1A) provides the following modes of serving the notice:

1. by giving the notice directly to the drawee i.e. serving the notice in person
2. by sending it by registered post with acknowledgement due to that person at his usual or last known place of abode or business in Bangladesh
3. by publication in a daily Bangla national newspaper having wide circulation.

However, the notice under this section can be served following any of the above-mentioned methods. For the above discussion, it is clear that service of notice to the drawer within thirty day of the dishonour of cheque is mandatory. In this regard question was raised in Abul Kalam Azad vs. State (61 DLR (2009) 91) whether a single notice is enough for several dishonoured cheques or notices have to be served for every single dishonoured cheque. The HCD held in this issue that “single notice for several dishonoured cheques is not acceptable” (Ibid). However, the drawee has to serve notice for every individual dishonoured cheque otherwise the service will not be regarded as duly served as stipulated under section 138 of the Negotiable Instrumrnts Act, 1881.      

Locus Standi: Section 138 says that the payee or the holder in due course can file a case under this section. However, only the person or institution to whom the check is issued or a holder in due course can sue.

Persons against whom a case under secion 138 can be filed: Normally the person who issues the cheque is liable to punishment under this section. But section 140 of the NI Act, 1881 provides that if the person committing an offence under section 138 is a company every person who at the time the offence is committed was in charge of and was responsible to the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

 In Islami Bank Bangladesh Ltd. Vs. Ferdous Khan @ Alamgir Khan and another (1) LNJ (AD) 1) it was held by the Appellate Division of the Supreme Court held that: 

“The liability under section 138 of the Act can be termed as a strict liability where a cheque has been returned to the payee having been dishonoured 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 then the person, issuing the cheque is strictly liable. The person, who issued the cheque, whether on his own behalf or on behalf of a company of which he is in charge or for which he is responsible cannot escape liability under the Act. In such circumstances the proceeding against the accused cannot be quashed. If for any reason the company is not prosecuted, the other persons who are in charge of the affairs of the company or have knowledge about the affairs of the company cannot escape from criminal liability if they are served with the notice.”

Non-applicability of Res-judicata/double jeopardy:

As per section 138(3) of NI Act, the holder of the cheque shall not be ousted from bringing any claim through civil court, if whole or any part of the value of the cheque remains unrealised through a cheque dishonour case. Again,, if the drawee institutes a civil suit for recovery of money, that will not be a bar cheque dishonour case. The Appellate Division in the case of Arifuzzaman vs. the state and another (18 MLR (AD) (2013) 251) held that civil suit is not a bar in filing criminal case under sec 138 of the Negotiable Instruments Act, 1881 because the right of a person to recover money under this section cannot be restricted by mere fact of filing a suit in civil court.

Courts to try and take cognizence of the offence: 

The payee or the holder of the cheque in due course must file a complaint in writing otherwise no court shall take cognizence  of any offence punishable under section 138 (Section 141(a)). As it is a complaint or CR case, the case has to be filed in a first class magistrate court within the jurisdiction of which the bank is located. But in case of trial, no court inferior to that of a Court of Sessions shall try any offence punishable under section 138.

Appeal:

An appeal against the judgement made in a case filed under section 138 can be filed in the appellate court subject to deposit by the appellant an amount of not less than fifty percent of the amount of the dishonoured cheque. (Section 138A)

Offences of Companies:

Section 138 as well as Section 140 of this Act should be mentioned in case of fraud through any institution. 

Contents of the Complaint: 

The contents of complaints brought under section 138 and other related documents are as follows:

1. In the complaint some fundamental of the case i.e. the name of check issuer, date of payment, date of dishonour, name of bank and branch, account number, check number and amount of money and if the check is issued by a company or organization, the name, designation and name of the issuing officer should be mentioned.
2. Original cheque, dishonour receipt, copy of legal notice or notification, postal receipt, receipt should be produced in court while filing the case.
3. Photocopies of these should be submitted along with the application form in the form of application form
4. After the filing of the case, special pleadings should be made for the speedy issuance of summons and warrants so that the accused appears.

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The Contract Act, 1872: Definition, Formation and Essential Elements of a Contract

Introduction:

Sir William Anson observes:

“The Law of Contract is intended to ensure that what a man has been led to expect shall come to pass that what has been promised to him shall be performed”

Modern business is mostly built on the law of contract. The Contract act 1872 governs the law of contract in Bangladesh. 

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Establishment and Jurisdiction of Subordinate Civil Courts in Bangladesh

Introduction: There is a fundamental principle of English law that ‘where there is right there is remedy' (ubi jus ibi remedium). If an individual's right is violated, he can avail remedy from a court competent to try it. However, a litigant having deprived of his right of civil nature can institute a civil suit in a competent civil court. Now, question arises regarding the competency or jurisdiction of civil courts in Bangladesh. This article contains discourse relating to establishment and jurisdiction of the subordinate civil courts in Bangladesh.

Establishment of Subordinate  Civil Courts: Subordinate civil courts in Bangladesh were established under the Civil Courts Act, 1887. Section 3 of the Civil Courts Act, 1887 as amended by the Civil Courts (Amendment) Act, 2001 establishes the following five civil courts-

1. The Court of District Judge 

2. The Court of Additional District Judge 

3. The Court of Joint District Judge

4. The Court of Senior Assistant Judge

5. The Court of Assistant Judge

These five courts are regarded as subordinate civil courts in Bangladesh. Section 4 of the Code of Civil Procedure, 1908 provides that the District Court is subordinate to the High Court Division and every court inferior  to that and every Courts of Small Cause is subordinate to the High Court Division and District Court.

Meaning of Jurisdiction: The term 'jurisdiction' is not defined in the code. The term 'jurisdiction' is derived from latin term 'juris' and 'dicto' which means 'I speak by the law'.1 

Generally, 'jurisdiction' means the power or authority of a court of law to hear and determine a cause or a matter.2 Thus, jurisdiction of a court means the extent of the authority of a court within which it may function. In 'Official Trustee v. Sachindra Nath3 the Supreme Court of India held that 

"Courts jurisdiction must include the power to hear and decide the question of issue, the authority to hear and decide the particular controversy that has arisen between the parties."

Jurisdiction of Civil Courts: Jurisdiction of civil courts in Bangladesh is determined by distinct provisions of the Code of Civil Procedure, 1908 and the Civil Courts Act, 1877. Generally, jurisdiction of civil courts may of following kinds:

1. Subjective Jurisdiction: Subjective jurisdiction specifies a court's power to try  suits of a particular subject or nature. Civil courts in Bangladesh have jurisdiction to try all suits of civil nature unless barred by law. Section 9 of the CPC goes with thus:    

"The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred."

However, a civil court has jurisdiction to try a civil suit, if the following two conditions are fulfilled-

• the suit must be of civil nature

• the cognizance of such suit should not have been expressly or impliedly barred i.e. where a suit is barred by limitation, a civil court cannot try the same.

In the case of Rauf vs. Hamid4 it was held that 

“The jurisdiction of the civil courts to try suits of civil nature is all embracing except when it is barred by express provision of law or by clear intendment arising from such law.”

Suits of Civil Nature: Suit of Civil Nature partains to private rights and remedies of a citizen as distinguished from crime and punishment. Thus, a suit of civil nature arises question therein relating to the determination of a civil right and enforcement thereof. For example, Suits relating to right to property, Suits for damages of civil wrong etc. 

2. Territorial or Local Jurisdiction: Section 13 of the Civil Courts Act, 1887 deals with territorial jurisdiction of the civil courts. Every civil court has its own territorial jurisdiction or local limit beyond which it cannot exercise its power. And such local limit is determined by the Government by notification of official gazette.

Again, sections 16 to 21 of the Code of Civil procedure provide general rules regarding exercise of such jurisdiction depending on where the subject matter of the suit is situated. A civil suit is to be instituted in a civil court, if the subject matter of the suit is situated in the local limit or territory of the court.5 If the subject matter is situated in the territory of more than one court, the suit may be instituted in either of the courts.6 If it cannot be determined the territorial jurisdiction regarding the subject matter of the suit, it may be instituted in any of the civil courts in Bangladesh.7 A suit for damage or movable property may be instituted in a court within whose jurisdiction the cause of action arises or where the defendant resides or where the defendant runs his business.8 If any of the above rules does not apply to any suit, the suit shall have to be instituted in a court where the defendant resides or the cause of action arises.9

Objection as to place of institution of a suit must be brought in the court of first instance at the earliest possible opportunity and before settlement of issues where issues are settled. But such objections may be allowed by appellate or revision court to avoid failure of justice.10

3. Pecuniary Jurisdiction: Section 15 of the Code of Civil Procedure 1908 says "Every suit shall be instituted in the court of the lowest grade competent to try it." Again section 6 of the CPC says "Any civil court shall not exceed its pecuniary limit. "Pecuniary Jurisdiction is of following two kinds: 

i. Original Pecuniary Jurisdiction: If a civil suit can be instituted in a court as first instance, it is said to be that the court has original jurisdiction. The following three civil courts have original jurisdiction. 

1. The Court of Joint District Judge

2. the Court of Senior Assistant Judge

3. the Court of Assistant Judge

These three courts have the following pecuniary limit to try an original civil suit as specified under sections 18 & 19 of the Civil Courts Act,1887- 

1. Assistant Judges have jurisdiction to try suits valued up to 15 lac taka.11

2. Senior Assistant Judges can try suits valued from 15 lac 1 taka to 25 lac taka.12

3. Other suits valued above 25 lac taka are within the jurisdiction of Joint District Judges.13 

Suits valued upto 25 thousands taka are instituted in the Small Cause Courts as established under the Small Cause Courts Act, 1887. Assistant Judges are authorized to act as Small cause Courts. A summary   procedure is followed in such a suit.  

 ii. Appellate Pecuniary Jurisdiction: Following courts have appellate jurisdiction in a civil proceeding-

1. High Court Division of the Supreme Court

2. the Courts of District Judge

3. The Court of Additional District Judge 

Their pecuniary limits are-

1. An appeal may be preferred to The High Court Division against decrees and appealable orders passed by the Court of Joint District Judge in cases valued more than 5 Crore taka.14

2. And the Court of District Judge can entertain an appeal from a decree and appealable orders passed by the Court of Assistant Judge, Senior Assistant Judge and Joint District Judge valued up to 5 Crore taka.15

3. The Additional District Judge discharges functions assigned to it by the District Judge as per section 8 of the Civil Courts Act, 1887.

4. Jurisdiction as to Transfer or Withdrawal: On the application of any of the parties or by its own motion the HCD or District Court may transfer or withdraw any suit, appeal or other proceeding at any stage of proceeding. Detailed rules regarding transfer and withdrawal of civil suits are laid down throughout sections 22-24 of the Code of Civil procedure.

5. Administrative Jurisdiction: Section 9 of the Civil Courts Act, 1877 provides that "Subject to the superintendence of the High Court Division, the District Judge shall have administrative control over all the Civil Courts under this Act within the local limits of his jurisdiction." However, the High Court Division, the District Judge shall have administrative control over all the Civil Courts subordinate to them.  

6. Revisional Jurisdiction: The High Court Division and the Court of District Judge have revisional jurisdiction under the Code of Civil Procedure. Section 115 of the CPC provides that the High Court Division has revisional jurisdiction against a decree or order passed by a Court of District Judge and Addition District Judge or a decree passed by a court of Joint District Judge, Senior Assistant Judge and Assistant Judge. An application for revision may also be preferred in the Court of District Judge against an order passed by a Court of Joint District Judge, Senior Assistant Judge and Assistant Judge. 

(As, an application for review a decree or order is to be filed in the same court which gives such decree or order, all the above civil courts have jurisdiction as to review as per section 114 of the Code of Civil Procedure)

Conclusions: Above discussion shows the existing jurisdiction of the civil courts in Bangladesh. The pecuniary limit was below the expected range in the current socio-economic situation before the changes brought by the Civil Courts (Amendment) Act, 2021.

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1. C.. Takwani, Civil Procedure, Sixth Edition , 2009, Eastern Book Company, at 40

2. Ibid

3. AIR (1969)SC

4. (17 DLR, (SC)515)

5. Section 16, The Code of Civil Procedure, 1908

6. Section 17, Ibid

7. Section 18, Ibid

8. Section 19, Ibid

9. Section 20, Ibid

10. Section 21, Ibid

11. Section 19, The Civil Courts Act, 1877 as amended by the Civil Courts (Amendment) Act, 2021

12. Ibid

13. Section 18, Ibid

14. Section 21, Ibid

  

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