Bangladesh vs. Md. Salimullah [1983 BLD (AD) 10]
Court | Appellate Division |
Case Name | Bangladesh vs. Md. Salimullah |
Citation | 1983 BLD (AD) 10 |
Petition No | C.A. 90 of 1981 & C.Ps. 30.31 & 68 of 1982 & 9 of 1981 |
Date of Decision | 30.06.1982 |
Name of the Parties | Md. Salimullah, Hamidul Huq Chowdhury, Syed Ali, Mofizur. Rahman Maiumder and others |
Matter | The question involved is whether petitions under Article 102 of the suspended Constitution (suspended under the Proclamation of Martial Law on March 24, 1982) pending before the High Court Division for judgment and civil petitions for special leave to appeal and civil appeals arising from judgments of the High Court Division passed in such petitions stand abated. |
Factual Background | On 24 March 1982, the than Chief of Army Staff of the Bangladesh Army Lt. Gen. Hussain Muhammad Ershad declared himself the Chief Martial Law Administrator and suspended the Constitution of the People's Republic of Bangladesh by imposing Martial Law through a Proclamation. Thereafter, a question common arose in view of the Proclamation that whether petitions under Article 102 of the suspended Constitution pending before the High Court Division for judgment and civil petitions for special leave to appeal and civil appeals arising from judgments of the High Court Division passed in such petitions stand abated or not. |
Legal Views | Suspension of the constitution by the Proclamation has completely taken away the Writ jurisdiction of the High Court Division and in the absence of Writ jurisdiction neither the High Court. Division nor the Appellate Division is competent to pass any order on the Writ application. So far as the appeals before the Appellate Division are concerned there cannot be any controversy with regard to abatement of appeals. By the operation of clauseing of the proclamation the appeals either by certificate or by special leave have abated and with the abatement of the appeals the judgments under appeal along with the writ petitions have also abated. Since a petition for special leave to appeal is transformed into an appeal only after compliance of the requirements of the Rules: and an appeal by certificate becomes pending only after filing of the petition of appeal, pending appeals includes only these appeals wherein petition of appeal has been filed: or after leave granted by this court requirements under the Rules have been complied with. There is no dispute that petitions for special leave pending in this court and the writ petitions pending in the High Court Division have abated. Abatement of the special leave petition does not affect the judgment of the High Court Division. ~ Mr. Justice Ruhul Islam |
Important discussion | The abatement of petitions for special leave and appeals by special leave arising out of applications under Article 102 of the Constitution, the judgments challenged therein along with the original applications under Article 102 of the Constitution shall also abate. ~ K.A. Bakr, Attorney General |
Direction | N/A |
Decision | The Hon'ble Court held that where leave petitions or appeals against decision of the High Court Division were pending before the Appellate Division, not only the proceeding before the Appellate Division but also the proceeding concluded in the High Court Division abated on the principle that an appeal is a continuation of the suit. It is submitted that abatement of an appeal does not have the effect of abatement of the suit and if the analogy of suit is brought in, the result should be otherwise. |
Full Judgment |