In this post we talk about Substantive and Interim Remedies in Bangladesh and how you can effectively deals with prayer portion of both criminal and civil matters in Bangladesh.

Substantive and Interim Remedies in Bangladesh

In Bangladesh, the parties to a case have access to a variety of interim remedies. Interim remedies are temporary measures that are typically granted to preserve the status quo or prevent the loss of assets.

Common applications for interim remedies include interim declarations; interim injunctions (injunctions are orders prohibiting a person from doing something or requiring them to do something); orders for the detention, custody, preservation, inspection, sampling of relevant property; sale of relevant property which is of perishable nature or which it is desirable to sell quickly for any other reason; freezing injunctions; search orders; and orders to provide informants.

Understanding the procedure:

In any court or tribunal, requesting remedies or reliefs in the prayer section of an application or petition is a vital aspect of the practice and procedure. The contents of this article are equally applicable to both criminal and civil matters, despite the fact that this article mainly focuses on criminal law.

Interim Remedies: Nature

Relief or remedies may be of three types:

(i)Main or substantive relief:

(ii)Interim relief; and

(iii) Consequential relief.

The primary or substantive relief is granted after a final hearing on the merits of the case, and consequential relief is likewise granted after a final hearing on the merits. Consequential relief is granted as a result of the main relief, such as an order regarding costs or exceptional costs. In contrast, temporary relief (e.g., injunction, directive, stay, status quo, etc.) is granted at the issue of the Rule, the initial hearing, or the admission hearing as an intermediate remedy to protect the petitioner’s interest or right.

Writ Petition in Bangladesh

  Praying for Rule Nisi (show cause notice). This Rule is the basis and beginning of substantive Wherefore, it is prayed that your Lordships may be pleased to-

The idea of natural justice requires that the opposing party be given the opportunity to respond or explain his side of the story before anything is resolved in his favor or against him. A Rule Nisi simply satisfies that natural justice need. It is a type of show that draws attention. Once an application under Article 102 of the Constitution is admitted, the phrase Rule Nisi is utilized or issued in a Writ Petition by the Special Original Jurisdiction of the High Court Division.

A Writ Petition is a specific request to the Supreme Court’s High Court Division. In writ jurisdiction, the Hon’ble Court grants instant relief against an administrative authority’s illegal or inappropriate action, as well as judicial or quasi-judicial action.

The Bangladeshi Constitution empowers only the High Court (of Supreme Court of Bangladesh) to issue writs, directives, and orders, among other things. Writ is a very powerful weapon at a citizen’s disposal, allowing him to protect his rights by submitting a petition with the Supreme Court’s High Court Division under Article 102 of the Constitution against an illegal breach of an individual’s rights. This page examines writ: its types and cases in Bangladesh.

Writ is a highly essential legal remedy available to the citizens of a welfare state for the aim of enforcing and implementing substantive law if there has been an infringement of their fundamental rights, such as an illegal act of authority, an error of law, and so on.

In Bangladesh, this right is exercised by submitting a written document, i.e. a writ petition, to the High Court Division of the Supreme Court under Article 102 of the People’s Republic of Bangladesh for its directions or orders on the topic of fundamental rights enforcement.

Following that, the court summons or orders the opposing parties, i.e. the respondent/s, to do or desist from doing something. The primary goal of writ is to protect the fundamental rights of the people and to enforce those rights.

Types of writ in Bangladesh:

The Constitution of Bangladesh refers to the following types of writs:

• Habeas Corpus
• Mandamus
• Prohibition
• Certiorari &
• Quo-Warranto.

Here is a short explanation of these five types of writs:

Habeas Corpus:

‘Habeas Corpus’ is a Latin phrase that meaning “have his bodies.” To present the body in court. So it is a court order commanding the authorities holding an individual in custody to bring that individual into court.

The authorities must then explain why the person is being held in court. If the authorities’ answer is unsatisfactory or the detention is proven to be illegal, the court might order the individual’s release.

Thus, the writ of ‘Habeas Corpus’ is a method for ensuring the subjects’ personal liberty by providing an effective means of immediate release from unlawful or unjustifiable confinement, whether in prison or in private custody.

In Bangladesh, for example, if a person is wrongfully arrested or imprisoned, his family or friends can seek a writ of habeas corpus under Article 102 of the Bangladesh constitution. If a person is imprisoned for a murder he did not commit, his family can seek his release through a writ of habeas corpus. However, if it is proven in court that he did commit the crime, the writ is dismissed. 

Mandamus:

The purpose of mandamus is to keep public officials within their authority while performing public tasks. Mandamus can be awarded to any form of authority for any type of duty, including administrative, legislative, quasi-judicial, and judicial functions. Mandamus is known as a “wake-up call,” as it wakes up the sleeping authorities to do their duties.

Any person who seeks legal duty to be performed by a person or a body may file a petition for writ of mandamus. A filing person must have a genuine or special interest in the subject topic and the legal authority to do so. Mandamus cannot be granted against a private person or entity.

Assume that a government employee working for Bangladesh Tele-Communication Limited (BTCL) feels that his right has been violated for whatever reason and wishes to file a writ of Mandamus against that corporation.

However, if his complaint lacks adequate material and is proven to be incorrect, the writ petition will be dismissed.

Prohibition:

Prohibition is a preventive writ issued to prohibit the illegal use of jurisdictional power to the harm of a person’s legal rights. The High Court Division is authorized by sub-clause I of clause (a) of sub-article (2) of article 102 of the Constitution to direct a person exercising any tasks in connection with the business of the Republic or local authority to refrain from doing what he is not permitted by law to do.

Anyone who believes or has reason to believe that an order issued by a lower court is illegal or outside the jurisdiction of that court may file a writ petition against the court.

If the Supreme Court determines the allegation to be true, it can issue a writ of prohibition against the subordinate court.

Certiorari:

Certiorari is a Latin word that meaning “to be certified” or “to be informed of, or to be made certain about” the proceedings of any lower court or tribunal that will be scrutinized by the superior court.

The High Court Division of the Supreme Court of Bangladesh may request records of any pending or ended procedures before any authority or court, including a tribunal, for its scrutiny as to the legality or otherwise of the said processes.

A supreme court has the authority to review the processes of all lesser tribunals and rule on their authority to hear that matter as well as their decisions on legal issues. However, the lower courts’ decisions on factual issues are rarely overturned, unless a state statute authorizes a higher court to do so.

If a lesser court, tribunal, authority, or individual has previously breached the concept of natural justice, misused power, or acted beyond its jurisdiction, the higher or superior court might quash that act, i.e. declare it illegal, by issuing certiorari.

Quo Warranto

The Writ of Quo Warranto provides redress for illegal occupation or usurpation of any public office, franchise, or liberty. It allows for an investigation of the legitimacy of a person’s claim to an office or franchise, as well as removal from such position if he is a usurper.

The office holder must demonstrate to the court under what authority he holds office. Such a remedy is accessible from the High Court Division under sub-paragraph (ii) of clause (b) of sub-article (2) of article 102 of the Constitution.

The Supreme Court may issue this writ against any firm or individual if the court determines that the company or individual has no legal authority to hold the position they had. Assume that a garment industry lacks any legal authorization to operate, the court may issue a writ of Quo Warranto against that industry.

Alternatively, a Rule issued signifies that the court has accepted the Writ Application. A typical Rule Nisi is issued, “inviting the respondent to show cause why (some action) should not be judged to have been made without any legitimate authority and to have no legal effect.” An interim order may also be issued, halting the operation of the contested action for a specified amount of time or until the Rule is resolved.

For example:

“Issue a Rule Nisi calling upon the respondents to show cause as to why the Order of cancellation of Nikah Registration licence vide Memo No.

382- Bichar-7/2N-116/87(Angsha) dated 18.04.2004 (Annexure- N) issued by the Respondent No.2 and Appointment of new Nikah Registrars vide Memo No. 2124 and Memo No. 2119(4) dated 19.04.2004 (Annexure- O and 01) issued by the Respondent No.5 shall not be declared to have been issued without lawful authority and is of no legal effect and also should be declared to be in violation of the fundamental rights of the Petitioner is granted under Articles 27, 29 and 31 read with Article 102 of the Constitution of the Peoples Republic of Bangladesh.”

Praying for interim relief in the form of Stay:

An intricate examination of Section 151 of the Civil Procedure Code, 1908, where the two concerns brought down are- exercise of powers to fulfill goals of justice and to prevent abuse of process.

Courts have the authority to issue interim orders with the primary goal of preventing injustice from being done to the innocent. There is no superior role or procedure that allows any organ to overrule the provisions of S.151 of the Code, demonstrating the Supreme Court’s concern in protecting justice.

In Ram Chand and Sons Sugar Mills Pvt. Ltd Barabanki v. Kanhayalal Bhargava, the contention was that several events occurred subsequent to the pending first suit, and thus the first suit was no longer useful.

The Court has such powers relative to the issuance of interim orders due to the need to be just and convenient. In general, the Court may use the Inherent Powers assigned to it to impose interim orders in order to avoid misuse of the Court process.

The Court was established to bring the goals of justice together, and a portion of this may be seen in the Court issuing interim orders.

The Court claims that such interim injunctions improve the conduct of the suit and the litigation process.

1. Issue a Rule Nisi:

A rule nisi is primarily a temporary order of the court that has no independent existence but is conditional on confirmation by the court; thus, the court lacks the ability to extend the life of a lapsed order mero motu.

For example: ” Issuing a Rule Nisi calling upon the respondents to show cause as to why the Order of cancellation of Nikah Registration licence vide Memo No.

382- Bichar-7/2N-116/87(Angsha) dated 18.04.2004 (Annexure- N) issued by the Respondent No.2 and Appointment of new Nikah Registrars vide Memo No. 2124 and Memo No. 2119(4) dated 19.04.2004 (Annexure O) issued by the Respondent No.5 shall not be declared to have been issued without lawful authority and is of no legal effect and also should be declared to be in violation of the fundamental rights of the Petitioner is granted under Articles 27, 29 and 31 read with Article 102 of the Constitution of the Peoples Republic of Bangladesh.”

2. Praying for interim relief in the form of Stay:

The main problem with granting interlocutory injunctions, whether Prohibitory or Mandatory, is that there is always the risk that the court will make the ‘wrong’ decision, either by granting an injunction to a party who fails to establish his right at trial (or would fail if there was a trial) or by failing to grant an injunction to a party who succeeds (or would succeed) at trial.

As a result, the courts have formed a key notion that usually the Court takes the option that appears to bear the lowest danger of injustice if it turns out to be wrong.

Thus, if the court believes that withholding a mandatory interlocutory injunction would result in a greater risk of injustice than granting it, even if the court does not have a “high degree of assurance” about the Plaintiff’s chances of establishing his right, there is no rational basis for withholding the injunction.

For example, a template would be:

“Pending hearing of the Rule your Lordships may be pleased to stay operation of the impugned Order of cancellation ofNikah Registration licence vide Memo No. 382- Bichar-

7/2N-116/87 (Angsha) dated 18.04.2004 (Annexure- N) issued by the Respondent No. 2 and Appointment of new Nikah Registrars vide Memo No. 2124 and Memo No. 2119(4) dated 19.04.2004 (Annexure-O and O1).issued by the Respondent No. 5 may kindly be given.”

3. Praying for substantive relief:

Upon hearing the parties and cause shown, if any, make the rules absolute. A person may bring an action for a declaration of any legal character or claim to property. This is an optional relief. The law states that no such declaration shall be made if the plaintiff fails to seek additional relief other than a mere declaration of title.

 4. Praying for consequential relief:

Pass such other or further order or orders as to his Lordships may seem fit and proper.

Rule Nisi in Bangladesh:

Generally, a rule nisi is an order “to show cause”, meaning that the ruling is absolute unless the party to whom it applies can show cause why it should not apply.

A decree nisi or rule nisi (from Latin nisi, meaning “unless”) is a court order that does not have any force unless a particular condition is met. Once the condition is met, the ruling becomes a decree absolute (rule absolute), and is binding.

Typically, the decree becomes absolute unless the adversely affected party provides satisfactory evidence or argument that the decree should not take effect. For that reason, a decree nisi may also be called a rule, order or decree to show cause.

Issuing Rule Nisi is the basis and beginning of substantive relief. After receipt of causes shown, if any, against the Rule Nisi the court will hear the matter on merit and after such hearing will deliver judgment and give substantive relief.

When the rule nisi is issued, it is incumbent on the party upon whom it has been issued to appear and help the Court in the proceedings.

Rule and Rule Nisi under the New High Court Rules, 2012:

The term Rule or Rule Nisi has universal acceptability in legal jurisprudence. However, the newly amended High CourtDivision Rules, 2012 defines and differentiates between Rule and Rule Nisi. This differentiation seems unnecessary and confusing from the view point of the universality of these terms application. If we accept this differentiation and definition correct, how can we define “decree nisi”? The definition and differentiation are quoted below:

Issuing Rule/Rule Nisi & return date:

When a Motion Bench decides to accept an application/petition for adjudication, it will pass an order for issuing a notice calling upon the respondent(s)/opposite parties to show cause on such matters and within such period as specified in the order.

An order passed on a Writ application/petition under this sub-rule may be called a Rule Nisi. In othercases, such order may be called a Rule. In every such order (Rule Nisi or Rule) the specific date of return of service shall be mentioned along with a direction to the petitioner/applicant to put in requisites within a specified time.

For details on Rule Nisi,”Rule is returnable within 3 weeks”, “Let the service of the notice is dispensed with” etc.

Interim Relief and Main Relief:

Interim Relief is ancillary to the main relief and such relief is given in aid of or ancillary to the main relief which may beavailable to the petitioner on final determination of his petition but not as a means to enable the Petitioner to initiate anappropriate legal proceeding.

The petitioner should not be granted the interim relief in such a way that he practically gets the principal or substantive relief which he seeks to obtain on final hearing of the petition.

Any declaration or direction or order to be given must be ancillary to the main relief, but in doing so the superior courtshad always placed self-imposed limitation for not raising any new issue which requires adjudication on proper fact for which no foundation was laid by the parties. 

Interim Relief when should not be granted:

The HD while passing ad-interim order or granting ad-interim relief is to see that the relief so granted does not amountto granting the entire releifs sought for in the substantive prayer in the petition.

The HD except under exceptional circumstances without hearing the other side should not grant ad-interim relief which is close to relief sought in the Writ Peittion.

The superior courts have always discouraged granting of ad-interim relief which in fact gives the primary relief sought in the writ petition Agrani Bank v Essential Garments Ltd, 26 BLD (AD) 93.

The law is now settled that if the interim relief amounts to granting of entire relief sought in the proceeding, the ad-interim relief so granted is not legally well-founded and granting of such ad-interim relief has been deprecated by the courts where judgment is binding on all courts (Para 16) AIR 1995 SC 1368.

Without issuing Rule while disposing of the application under Article 102 of the Constitution the High Court Division was not authorised in law to pass any ad-interim relief which it could pass in aid of or ancillary to the main relief upon final determination of the rights of parties Bangladesh Bank and others v. Zafar Ahmed Chowdhury and another 56 DLR (AD).

Consequential Relief:

In Ministry of Establishment Vs. Amjad Hossain 2 CLR (AD) 107 question was raised whether the phrase in the prayerportion of a writ petition “such other or further order or orders as to your Lordships may seem fit and proper may kindly be passed permit the High Court Division to go beyond the terms of the Rule.

The Appellate Division held that theprayer to the effect “and/or such other of further order or orders as your Lordships may deem fit and proper “do not authorise a writ Court to give relief beyond the Rule issuing order, such prayer authorises the writ Court to give any incidental relief or reliefs which may follow from the main relief according the Rule issuing order.

This view from our apex court seems wrong in view of decision in Mehta by the Indian Supreme Court.

Types of Interim Relief:

Interim relief may be of different types depending On circumstances and orders of the court allowing it. Some of the common types of interim orders are briefed below:

Injunction:

Injunction is a judicial order whereby a party is required to do or to refrain from doing any particular act or maintaining status quo. Depending on the procedure injunction may be of three types: Ad-interim, temporary and permanent injunction. Again, depending on the basis of nature injunction may be of two types: mandatory and prohibitory injunction.

Stand over:

Writ, Criminal Revision, Application under 561A of Miscellaneous Jurisdiction, Application for condonation of delay- are all motions. Motions were normally unlisted but now after amendment of High Court Rules in 2012 motions are lites as ‘In re’ and they are heard on motion days in respective courts.

However, if some of the motions remain unheard on a particular motion day, they will be taken up the next day and in that case they are put on to the list as”Stand Over”. They may also come up in the list as “In Re”. Order of *stand over” is also possible by application by an advocate.

For instance, when at the time of motion hearing the court requires some information which the latter do not have, an order of stand over for a certain period of time may be passed by the Bench which effectively adjourns thematter to a late date.

Stay:

Stay means an order of the court whereby an action or effectiveness of an action is stopped until further order.

Status Quo:

“Status quo” means the existing state of things at any given time. In other words, it means the state in which anything already is. To leave a thing in status quo is to leave it unaltered, i.e., as it is. Status quo involves any undertaking not to do a certain act.

It has also been decided that an order of status quo by the court amounts to an order of temporary injunction.

Are you planning to do a writ or looking for criminal and civil remedies in Bangladesh?

Tahmidur Rahman Remura Wahid TRW is a full-service law firm that has been dealing with Writ-related problems on a regular basis since its inception through its qualified and experienced lawyers.

If you require any assistance or consultation, please visit our office or contact us at +8801779127165 or +8801847220062 (WhatsApp) or by email- [email protected].

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