Litigation Dispute Decision Comparative Information – Litigation, Mediation & Arbitration
To print this article, all you need is to be registered or login on Mondaq.com.
1 Legal framework
1.1 What system of jurisprudence applies in your jurisdiction? What implications does this have for litigation?
Before 1947, Bangladesh was part of the British Empire and the sovereignty of the British Crown prevailed over the country. English law, theories and practices have had a significant influence on the laws of Bangladesh; and as such, the jurisprudence of Bangladesh is fundamentally based on the English common law system. Judicial precedent is the driving force, to the effect that the judgments of the courts (the Appellate Division and the High Court Division of the Supreme Court) are binding in subsequent cases in similar matters, unless overturned by a superior court or through legislation. Bangladesh has an adversarial jurisprudential system, in which the judge – as an impartial umpire – decides on the issue of contention based on the applicable laws and evidence adduced by the parties.
A well-ordered, well-regulated judicial structure exists in Bangladesh, with the Supreme Court of Bangladesh at the apex. The jurisdiction of the Supreme Court is broad, insofar as it is the general court of appeal from the high courts and the ultimate arbiter in all constitutional matters, and also enjoys an advisory jurisdiction. It can hear appeals from any court or tribunal in Bangladesh, and can issue writs to enforce fundamental rights. The judiciary in Bangladesh must dispense justice not only between the parties, but also between the state and its citizens. It interprets the Constitution and acts as its guardian by keeping all authorities – legislative, executive, administrative, judicial and quasi-judicial – within constitutional bounds. The judiciary is entitled to scrutinise any governmental action in order to assess whether it conforms with the Constitution and the valid laws made thereunder. The judiciary supervises the administrative process in Bangladesh and acts as the balance-wheel by settling inter-governmental disputes. The judiciary has the power to protect people’s fundamental rights from undue encroachment by any organ of the government. A person who complains that his or her fundamental rights have been breached can invoke the High Court Division’s writ jurisdiction under Article 102 of the Constitution. To enable the Supreme Court to discharge its functions impartially without fear or favour, the Constitution contains provisions to safeguard judicial independence, including security of tenure and access to a consolidated fund for the salary of judges.
1.2 What rules govern litigation in your jurisdiction?
There are about 1,200 laws in Bangladesh, of which 366 are pre-independence laws; the rest were made subsequent to independence. These statistics are based on the information given in the Bangladesh Code. They are constantly changing, insofar as the Parliament both makes new laws and repeals old laws and. Civil proceedings are regulated under the Code of Civil Procedure, 1908 and criminal proceedings are regulated under the Code of Criminal Procedure, 1898, unless otherwise excluded. The expression ‘civil proceedings’ covers all proceedings in which a party asserts civil rights conferred by a civil law. The Evidence Act, 1872 is instrumental in both civil and criminal proceedings; it outlines the procedure for receiving, admitting and dealing with evidence in trials.
Both the High Court Division and the Appellate Division of the Supreme Court of Bangladesh have their own rules governing their procedure – respectively:
- the Supreme Court of Bangladesh (High Court Division) Rules, 1973; and
- the Supreme Court of Bangladesh (Appellate Division) Rules, 1988.
These rules are supplemental to the abovementioned procedural codes and the Evidence Act.
With regard to substantive laws, the Parliament thus far has passed many of these, such as:
- the Specific Relief Act, 1877;
- the Contract Act, 1872; and
- the Easement Act, 1882.
The Penal Code, 1860 recognises offences such as murder, theft and robbery, and imposes punishments accordingly. The Specific Relief Act creates rights to some special remedies as against general relief and the Easement Act creates rights of easement. However, some laws are both substantive and procedural – for example, the State Acquisition and Tenancy Act, 1950 and the Limitation Act, 1908. The State Acquisition and Tenancy Act, 1950 creates some rights on state acquisition and outlines ways to acquire these rights. The Limitation Act, 1908 outlines the procedure for counting limitation and simultaneously creates some rights on prescription.
1.3 Do any special regimes apply to specific claims?
Various special regimes apply to specific claims; such matters are referred to as sui generis. There are several tribunals and commissions (as mentioned in question 2.2) that deal with such specific claims deriving from a special regime. Some of the regimes established are as follows:
- the Money Loan Court Act, 2003;
- the Bankruptcy Act, 1997;
- the Right to Information Act, 2009;
- the Bangladesh Labour Act, 2006;
- the Food Safety Act, 2013;
- the Digital Security Act, 2018;
- the Children and Women Repression Prevention Act, 2000;
- the Admiralty Court Act, 2000;
- the Insurance Act, 2010; and
- the Consumers’ Protection Act, 2009.
Separate courts or tribunals usually exist for these regimes, and such courts or tribunals form part of the judicial system.
1.4 Which bilateral and multilateral instruments have relevance to litigation in your jurisdiction?
Bangladesh is a signatory to a number of bilateral and multilateral instruments regarding litigation. However, such treaties in some respect have been domesticated to be operational and have the force of law in Bangladesh.
For example, Bangladesh has acceded to the New York Convention 1958 and the Geneva Convention 1927 on enforcement of arbitration agreements and awards issued by arbitral tribunals in a country which has also ratified the New York Convention or the Geneva Convention. The Arbitration Act, 2001 provides for direct enforcement of foreign arbitral awards as provided in the New York Convention.
An agreement dated 13 January 2011 executed between Bangladesh and India on mutual legal assistance in criminal matters recognises the need to facilitate the widest measures of mutual assistance in the service of summons, execution of warrants and other judicial documents and commissions, and aims to improve the effectiveness of both countries in the investigation, prosecution and suppression of crime, including crime related to terrorism and tracing, restraint, forfeiture or confiscation of the proceeds and instruments of crime through cooperation and mutual legal assistance in criminal matters. The Mutual Legal Assistance in Criminal Matters Act, 2012 provides for the enforcement of these objectives.
Bangladesh has also signed double tax treaties with 28 countries: Canada, Poland, Norway, China, Romania, Turkey, Denmark, Singapore, Vietnam, France, the Republic of Korea, the Philippines, Germany, Sri Lanka, Indonesia, India, Sweden, Switzerland, Italy, Thailand, Oman, Japan, the Netherlands, Malaysia and the United Kingdom. The aforementioned agreements have been domesticated and have the force of law in Bangladesh by dint of Section 144 of the Income Tax Ordinance, 1984.
2 Judicial structure
2.1 What courts exist in your jurisdiction and how are they structured?
The 200-year British rule in the Indian subcontinent played a significant role in shaping the legal system of Bangladesh. The Supreme Court of Bangladesh is at the top of the general hierarchy (for both civil and criminal courts), and comprises the Appellate Division and the High Court Division (Article 94(1) of the Constitution). Article 114 of the Constitution provides that there shall be such courts subordinate to the Supreme Court as may be established by law. The Civil Courts Act, 1887 provides for subordinate civil courts, while the Code of Criminal Procedure, 1898 provides for the courts of magistrates and session judges. Parliament may, by law, establish additional courts; but Article 114 of the Constitution operates as a limitation on the plenary legislative power of Parliament in respect of the establishment of new courts. Pursuant to Article 114, Parliament cannot create a court which is not subordinate to the High Court Division and cannot amend the existing laws so as to make the existing courts independent of the Supreme Court (Shahar Ali v AR Chowdhury, (1980) 32 DLR 142). The court system is also facilitated by tribunals, which have their own structure as established under their respective statutes.
Appellate Division: The source of jurisdiction of the Appellate Division stems from the Constitution and general laws. The general laws provide only for appellate jurisdiction (Article 103(4) of the Constitution) and as such, the Appellate Division has no such original jurisdiction. The jurisdiction of the Appellate Division is limited to:
- appellate jurisdiction (Article 103 of the Constitution);
- jurisdiction as to the issue and execution of process (Article 104 of the Constitution);
- jurisdiction as to review (Article 105 of the Constitution); and
- advisory jurisdiction (Article 106 of the Constitution).
High Court Division: The High Court Division, like the Appellate Division, has two sources of jurisdiction: the Constitution and ordinary law. The constitutional jurisdiction of the High Court Division includes:
- writ jurisdiction (Article 102 of the Constitution);
- jurisdiction as to superintendence and control over the courts (Article 109 of the Constitution); and
- jurisdiction as to the transfer of cases (Article 110 of the Constitution).
Notably, ‘writ jurisdiction’ means the power and jurisdiction of the High Court Division under the provisions of the Constitution to:
- enforce fundamental rights as guaranteed in Part III of the Constitution; and
- exercise its power of judicial review against any administrative action where no equally efficacious alternative remedy is available.
The ordinary jurisdiction of the High Court Division includes:
- original jurisdiction;
- appellate jurisdiction;
- revisional jurisdiction; and
- reference jurisdiction.
‘Original jurisdiction’ means the court of first instance for filing a suit, such as an admiralty suit as per Section 3 of the Admiralty Court Act, 2000 (Global Traders v MV Guijiang VI (2005) 57 DLR 89), company matters and Christian divorce matters. Appellate, reference or revisional jurisdiction may be conferred upon the High Court Division by law (eg, Section 115 of the Code of Civil Procedure, 1908 conferred revisional power on the High Court Division).
Subordinate courts: Regarding civil courts, Section 3 of the Civil Courts Act, 1887 (as amended in 2001) provides for five classes of courts:
- the court of the district judge;
- the court of the additional district judge;
- the court of the joint district judge;
- the court of the senior assistant judge; and
- the court of the assistant judge.
The sequence above signifies the hierarchy of these courts. These courts have jurisdiction assigned to them by the Civil Courts Act or any other law, which may be:
- territorial jurisdiction (Section 13 of the Civil Courts Act, 1887);
- pecuniary jurisdiction;
- original jurisdiction;
- appellate jurisdiction (Sections 20–21 of the Civil Courts Act, 1887); or
- transferred jurisdiction (Sections 22 and 24 of the Code of Civil Procedure, 1908).
District judges and additional district judge does not generally try original suits; but if any law so requires, they will have original jurisdiction (eg, Section 96 of the Trade Marks Act, 2009; Section 12 of the Arbitration Act, 2001).
With regard to criminal courts, the legal basis of the same stems from the Code of Criminal Procedure, 1898. Section 6 of the Code of Criminal Procedure provides for two types of subordinate criminal courts:
- the sessions courts; and
- the magistrates’ courts.
The sessions courts are presided over by:
- a session judge;
- an additional sessions judge; and
- a joint sessions judge.
The magistrates’ courts consist of:
- a chief judicial or metropolitan magistrate (in metropolitan areas);
- an additional chief judicial or metropolitan magistrate;
- a senior judicial magistrate;
- a second-class magistrate; and
- a third-class magistrate.
Pertinently, Section 6(2) provides for two types of magistrates’ courts:
- judicial magistrates’ courts; and
- executive magistrates’ courts.
The sequence above regarding sessions and magistrates’ courts signifies the hierarchy of these courts. The sessions court exercises:
- original jurisdiction;
- appellate jurisdiction (Sections 406 and 408 of the Code of Criminal Procedure, 1898);
- revisional jurisdiction (Sections 435, 436 and 439A of the Code of Criminal Procedure); and
- administrative jurisdiction.
2.2 What specialist courts or tribunals exist in your jurisdiction?
There are several specialist courts and tribunals in Bangladesh, which include the following.
Money loan courts: The courts established under Section 4 of the Money Loan Court Act, 2003 deal with all suits concerning the recovery of loans by a bank or financial institution, as defined in the act.
Bankruptcy court: Section 4 of Bankruptcy Act, 1997 provides for the establishment of bankruptcy courts, which have full power to decide all questions – whether of title or priority, or of any nature whatsoever, and whether involving matters of law or of fact which may arise in any bankruptcy – coming within the cognisance of the courts.
Family courts: Section 4 of the Family Courts Ordinance, 1985 provides for the establishment of family courts to entertain, try and dispose of any suit (subject to the provisions of the Muslim Family Laws Ordinance, 1961) relating to or arising from all or any of the matters relating to the dissolution of marriage, the restitution of conjugal rights, dower, maintenance or guardianship.
Land survey tribunals: Section 145A of the State Acquisition and Tenancy Act, 1950 provides for the establishment of tribunals to deal with suits arising from the final publication of the last revised record of rights prepared under Section 144 of the State Acquisition and Tenancy Act.
Land Survey Appellate Tribunal: This appellate tribunal is established as per Section 145B of the State Acquisition and Tenancy Act to hear appeals arising from the judgments, decrees and orders passed by the land survey tribunals.
Cyber tribunals: The cyber tribunals, established under Section 68 of the Information and Communication Technology Act, 2006, adjudicate issues arising from the Information and Communication Technology Act and the Digital Security Act, 2018.
Cyber Appellate Tribunal: Section 82 of the Information and Communication Technology Act provides for the establishment of a Cyber Appellate Tribunal, which has the power to hear appeals and dissolve the verdicts and orders issued by the cyber tribunals and the sessions courts, as the case may be.
Environment courts: Section 4 of the Environment Court Act, 2010 provides for the establishment of environment courts for the adjudication of matters deriving from environmental law.
Court of Settlement: Section 9 of the Abandoned Buildings (Supplementary Provisions) Ordinance, 1985 provides for the establishment of a Court of Settlement to deal with issues relating to abandoned buildings, which has all the powers of a civil court. No appeal shall lie from any order or decision of the Court of Settlement to any other court or authority.
Environment Appeal Court: The Environmental Appeal court established under Section 20 of the Environment Court Act may hear appeals accruing from judgments, decrees or orders passed by the environment courts.
Labour courts: The labour courts established as per Section 214 of the Bangladesh Labour Act, 2006 adjudicate labour-related disputes.
Labour Appellate Tribunal: Section 218 of the Bangladesh Labour Act, 2006 provides for the establishment of a Labour Appellate Tribunal which hears appeals against decisions of the labour courts.
Pure food courts: The pure food courts established under Section 64 of the Food Safety Act, 2013 adjudicate matters arising from the Food Safety Act, 2013.
Customs, Excise and VAT Appellate Tribunal: The tribunal is established in accordance with Section 196 of the Customs Act, 1969 and hears appeals against orders passed by the commissioners of customs, the commissioner of customs (bond), the director general (duty exemption and drawback) or any officer of customs equivalent to the commissioner of customs (not being a decision or order passed under Section 82 or 98 of the Customs Act, 1969, or the VAT and Supplementary Duty Act, 2012).
Taxes Appellate Tribunal: The tribunal established under Section 11 of the Income Tax Ordinance, 1984 hears appeals against decisions passed by the appellate joint or additional commissioner or the commissioner (appeals). It is the highest judicial authority in determining the factual points of income tax cases.
Bangladesh Energy Regulatory Commission (BERC): Section 4 of the Bangladesh Energy Regulatory Commission Act, 2003 established BERC to arbitrate disputes in the energy (eg, gas, electricity, petroleum) industry, among others.
Bangladesh Competition Commission: The Bangladesh Competition Commission was established under Section 5(1) of the Competition Act, 2012 to eliminate practices that have an adversarial effect on competition in the market, to promote and sustain competition, and to ensure freedom of trade, among other things.
Information Commission, Bangladesh: The Information Commission was established under Section 11 of the Right to Information Act, 2009 to ensure that citizens have access to information according to the Right to Information Act.
Administrative tribunals: The tribunals (established under Section 3 of the Administrative Tribunals Act, 1980) have exclusive jurisdiction to hear and determine applications made by any person in the service of the republic or of any statutory public authority in respect of the terms and conditions of his or her service, including pension rights, or in respect of any action taken in relation to him or her as a person in the service of the republic or any statutory public authority.
Administrative Appellate Tribunal: Section 5 of the Administrative Tribunals Act, 1980 provides for the establishment of the Administrative Appellate Tribunal to hear and determine appeals from any order or decision of an administrative tribunal.
Children and women repression prevention tribunals: Section 26 of the Children and Women Repression Prevention Act, 2000 provides for the establishment of tribunals to adjudicate matters regarding violence inflicted upon children and women.
Special Tribunal, Securities and Exchange Commission: The Special Tribunal of the Securities and Exchange Commission was established in 2012 under Section 25B of the Securities and Exchange Ordinance, 1969 to deal with stock market-related cases (ie, irregularities in the capital markets), among other things.
Election tribunals: The Election Commission, as per Section 23 of the Local Government (Union Parishad) Act, 2009, constituted tribunals in the districts to resolve disputes over the Union Parishad polls.
International Crime Tribunal: The tribunal was established on 22 March 2012 in accordance with Section 6 of the International Crimes (Tribunal) Act, 1973 for the trial of offences such as:
- crimes against humanity;
- crimes against peace;
- war crimes; and
- any other crimes under international law.
3.1 What formalities apply before litigation can be commenced in your jurisdiction?
There are no codified pre-action formalities which must be complied with before initiating litigation in Bangladesh. From a general perspective, the aggrieved party will begin by serving legal notice on the opposite party stipulating:
- all details as to the introduction of the aggrieved party;
- the relevant facts;
- the disputed issue;
- its demands; and
- its intention to commence litigation if its demand are not met within the prescribed timeframe.
Otherwise, any pre-litigation formalities will depend on the nature of the dispute. In addition, a winding-up notice must be served 21 days before the filing of a winding-up application with the court under Section 241(v) of the Companies Act, 1994.
3.2 Do any pre-action protocols or similar rules apply prior to the commencement of litigation? What are the consequences of non-compliance?
There are no codified pre-action protocols or similar rules that apply in respect of the commencement of litigation in Bangladesh in general. However, depending on the nature of the case, certain prior steps may need to be taken before commencing litigation – for example, service of a demand notice by registered post under Section 242 of the Companies Act, 1994 at least 21 days before filing a winding-up application with the high court on the grounds of the inability of a company to pay its debts (Section 241(v) of the Companies Act, 1994). If a party fails to send the demand notice in accordance with Section 242, the winding-up application cannot be maintained at the High Court Division due to the failure to send such notice.
In respect of bankruptcy proceedings, a formal demand must be served on the debtor – which must owe a valid and matured debt to one or more creditors for an amount of not less than BDT 500,000 under Section 9(1)(i) of the Bankruptcy Act, 1997. If the debtor fails to entertain the same within 90 days, this will qualify as an act of bankruptcy for the purpose of commencing bankruptcy proceedings in the court. The commencement of bankruptcy proceedings in the court without service of a formal demand is necessarily a procedural lapse which means that the proceedings cannot be maintained.
With regard to cases before the money loan courts, any property mortgaged under a loan should be put in auction under Section 12 of the Money Loan Court Act, 2003.
3.3 What other factors should a party consider before commencing litigation in your jurisdiction?
The length of court proceedings in Bangladesh has served as a bottleneck in ensuring access to justice. Due to the protracted nature of such proceedings, an aggrieved party often will not secure his or her due entitlement within his or her lifetime. The cost of litigation is also a factor worth consideration. It is thus advisable to explore any options for negotiation or settlement at the earliest opportunity; and the right strategy should be adopted to ensure that the scope of the settlement is viable, wherever possible. The right strategy is important, as if a party proceeds to litigation directly, any opportunities for settlement may remain unexplored. Therefore, before commencing litigation, parties should:
- undertake the necessary due diligence to assess the merits of the case;
- understand the entire process of litigation, including the mechanisms for the enforcement of judgments; and
- conduct a cost-benefit analysis.
Having considered the above, the party should decide on the strategy of settlement and on whether to proceed with litigation. It should also consider whether any alternative forums should first be exhausted, as commencing litigation could waste significant amounts of money and time.
The length of court proceedings in Bangladesh is primarily due to the huge case backlog before the courts. The government of Bangladesh has expressed concern regarding this trend, which is reflected in several policy frameworks and ongoing initiatives. Its Digital Bangladesh strategy also aims to strengthen the judiciary by reducing the case backlog through an improved case data management system.
4 Commencing litigation
4.1 What rules on limitations periods apply in your jurisdiction?
Limitation periods are generally governed by the Limitation Act, 1908, effective from 7 August 1908. The act contains provisions of limitation for various types of cases, such as limitation periods for instituting civil suits, appeals and applications in court. The main principle of this law is that if any suit is not filed within the period prescribed for its institution, it will be dismissed upon the expiry of such period.
In the following cases, an application for extension of the limitation period can be made under Section 5 of the Limitation Act, 1908:
- application for review;
- application for revision;
- application for leave to appeal; and
- application under any law where Section 5 of Limitation Act has been made applicable.
The court, at its own discretion, can grant condonation of delay under Section 5 of the act. The applicant must show reasonable grounds to convince the court that:
- it was prevented by sufficient cause from making the application within the limitation period; and
- there was no gross negligence or laches on the part of the applicant (Bangladesh v Solaiman, 47 DLR 244).
The general rule of interpretation of law is that special law prevails over general law. The Limitation Act is a general law concerning limitation periods. Therefore, if there is any special provision for limitation in any special law, that special law must prevail. For example, the Special Powers Act, 1974 and the Money Loan Court Act, 2003 are both special laws and both provide for limitation periods; as such, the provisions of the Limitation Act are not applicable. Moreover, Section 29(2) of the Limitation Act specifies that where there are provisions on limitation periods in any special law which differ from the periods prescribed in the First Schedule of the Limitation Act, Section 3 of the act will apply as though such different periods were prescribed in the First Schedule.
4.2 What rules on jurisdiction and how this is determined apply in your jurisdiction?
The Bangladesh courts possess jurisdiction over matters to the extent that it is granted to them by the Constitution of Bangladesh or other applicable laws. With regard to civil courts, the jurisdiction-related provisions are set out in the Code of Civil Procedure, 1908 and the Civil Courts Act, 1887. The jurisdiction of a respective court is usually determined on the basis of:
- the subject matter of the dispute;
- the value of the dispute; and
- the place where the cause of action arose in full or in part.
There are two types of jurisdiction:
- territorial jurisdiction (Section 13 of the Civil Courts Act); and
- pecuniary jurisdiction.
With regard to territorial jurisdiction, this will depend on:
- the defendant’s place of residence;
- the location of the subject matter of the dispute; or
- the place where the relevant cause of action arose.
The government may, by notification in the Official Gazette, fix and alter the local limits of the jurisdiction of any civil court under the Civil Courts Act. If the same local jurisdiction is assigned to two or more joint district judges, senior assistant judges or assistant judges, then the district judge may assign to each of them such civil business as is cognisable by the joint district judge, senior assistant judge or assistant judge, as the case may be, and subject to any general or special orders of the High Court Division of the Supreme Court.
Regarding pecuniary jurisdiction, the pecuniary jurisdiction of:
- the assistant judge is BDT 1.5 million; and
- the senior assistant judge is BDT 2.5 million (as per Section 19 of the Civil Courts Act, 1887).
When the value of the claim is above BDT 2.5 million, the case must be filed in the court of the joint district judge. The pecuniary jurisdiction of the joint district judge is unlimited. Subject to some applicable laws, no suit is filed in the court of the district judge or the additional district judge as a court of original jurisdiction.
There are also several statutes that stipulate the specific court or tribunal with jurisdiction to hear matters. For example, Section 4 of the Family Courts Ordinance, 1985 provides for the establishment of family courts to entertain, try and dispose of any suits (subject to the provisions of the Muslim Family Laws Ordinance, 1961) relating to or from all or any matters relating to the dissolution of marriage, the restitution of conjugal rights, dower, maintenance or guardianship.
4.3 Are class actions permitted in your jurisdiction?
Class actions are permitted under Order I, Rule VIII of the Code of Civil Procedure, 1908, which allows a person to sue or defend on behalf of others with the same interest in the respective suit. To attract the applicability of this provision, four conditions must be fulfilled:
- The case must involve numerous persons;
- Those persons must have the same interest;
- The court must have given permission to sue or defend in a representative capacity; and
- The court must have given notice to the persons interested.
Pertinently, a suit in a personal capacity binds the plaintiff only; whereas a suit in a representative capacity under the aforementioned Order I, Rule VIII binds all who have the same interest. For the purpose of the above proviso, ‘numerous’ does not mean ‘innumerable’; it means a group of persons inconvenient to implead individually. ‘Same interest’ means a common interest and a grievance of the persons on whose behalf the suit is instituted. For the validity of a representative suit, the permission of the court is necessary, which should be given when the suit is filed, although it may also be granted afterwards. Regarding the necessity of service of notice, it is absolutely necessary that the notice be served upon all parties that would be bound by the decree, as otherwise a person may be prejudicially affected by such decree even though it was not on record. Compliance with Order I, Rule VIII is mandatory in respect of a representative suit and non-compliance will mean that the respective suit cannot be maintained.
4.4 What are the formal requirements for commencing litigation?
It is primarily imperative to ascertain whether there is any alternative remedy or condition precedent which must be complied with before commencing litigation. Thereafter, it must be determined as to which court has jurisdiction, based on:
- the subject matter of the claim;
- the value of the claim; and
- the place where the cause of action arose.
Stating from the usual practice, the prospective plaintiff will issue a legal notice stipulating:
- all details as to the introduction of the prospective plaintiff;
- the relevant facts;
- the disputed issue;
- its demands; and
- its intention to commence litigation if its demands are not met within the prescribed timeframe.
If the court is prima facie satisfied regarding the maintainability of the suit, it will issue notice or summons to the opposite party.
4.5 What are the procedural and substantive requirements for commencing litigation?
In accordance with Section 26 of the Code of Civil Procedure, 1908, every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. A ‘plaint’ is a statement of claim, a document by presentation of which a suit is instituted and a ‘pleading’ as per Order VI, Rule I of Code of Civil Procedure, 1908. Unless there is a special provision to the contrary, a proceeding which does not commence with a plaint cannot be treated as a suit. The plaint must be filed with the appropriate court that has the requisite jurisdiction, along with payment of the appropriate court fee as per the Court Fees Act, 1870. Failure to pay the requisite court fees (which will depend on the value or nature of the dispute) will prevent the case from being listed or heard by the court/tribunal. Ongoing non-compliance may result in the dismissal of the case.
Once a plaint is taken to the court, the court officer will examine whether the relief claimed has been properly valued, the court fees have been duly paid and so on. After being reasonably satisfied, the court officer will issue a serial number for the suit and will enter the suit in the Register of Suits. The date of filing will also be stamped on the plaint as soon as it is filed. The machinery of the court is set in motion by the presentation of a plaint, which is the first stage in a civil suit.
The plaint should state only facts (Hasenuddin v Bangladesh, 6 BLC 54) and not the law; it is up to the court to apply the law to the facts of the case. If a material fact is not included in the pleading, the party cannot adduce evidence thereof, unless the pleading is amended (Shamsul Haq v Sarafat Ali, 46 DLR 57). The test to determine the materiality of a fact is:
- whether it is essential to constitute the cause of action; and
- whether the other party would be taken by surprise if it were not stated in the pleading.
Failure to state the pleading material facts constituting a cause of action results in the dismissal of the suit.
4.6 Are interim remedies available in your jurisdiction? If so, how are they obtained?
Yes, Order XXXIX of the Code of Civil Procedure, 1908 provides for the issue of interim remedies in Bangladesh. It is acknowledged that between institution of a suit and its final disposal, there may be a need to preserve the subject matter of the suit or the rights of the parties, if otherwise great hardship or grave prejudice could be caused to a party or the suit itself could be rendered infructuous (Gloland (Far East) Ltd v Bangladesh, 4 BLC 480). The right to obtain an interim remedy is ancillary to the right to file a suit which can be obtained on the showing of:
- a prima facie case;
- irreparable loss; and
- the balance of convenience (Deputy Secretary, Ministry of Commerce v Nizamuddin Haider, 37 DLR 102).
The considerations for ascertaining whether there is an implied grant of power to issue interim relief are:
- the need to preserve the status quo with respect to the subject matter of the dispute; and
- the need to preserve the parties themselves.
Both the plaintiff and the defendant can apply for interim remedies. Such interim relief is an equitable relief and is not granted if the applicant does not come with clean hands. To obtain interim relief, the respective party must file an application for interim relief before the court, setting out the necessary pleadings regarding the subject matter. The grant of interim relief is at the court’s discretion. Interim relief includes, but is not limited to:
- ad interim injunctions;
- attachment before judgment;
- interim sale of moveable property;
- orders for the detention or inspection of property;
- the stay of an application of any order; and
- status quo.
The civil courts can issue a plethora of interim remedies to protect the interests of the parties, including:
- attachment before judgment;
- security for costs;
- Anton Pillar orders; and
- Mareva injunctions.
4.7 Under what circumstances must security for costs be provided?
Order XXV, Rule I requires the plaintiff to provide security for costs where:
- the plaintiff is resident out of Bangladesh; or
- the plaintiff has insufficient immoveable property in Bangladesh, apart from the suit property.
The court – either ex officio or on application by the defendant – may order security for costs. The Code of Civil Procedure, 1908 also provides for security for costs in:
- Order XXII, Rule VIII (plaintiff’s bankruptcy);
- Order XXXVII, Rule IV (summary suit on negotiable instruments);
- Order XXXXI, Rule V (security on stay of execution);
- Order XXXXI, Rule VI (security where execution is granted of a decree appealed form);
- and Order, XXXXI Rule X (security from appellant).
The power of the court is discretionary, and security for costs can be ordered only in exceptional circumstances on some established principles and not merely because the court in its first impression is of the opinion that the plaintiff’s suit is not bona fide. The question which may determine the passing of an order is:
- whether the plaintiff has a substantial interest in the suit or is suing for another person; and
- whether the order is necessary for the reasonable protection of the defendant.
5.1 What rules apply to disclosure in your jurisdiction? Do any exceptions apply to certain types of documents?
The relevant primary principle is that the pleading (ie, plaint or written statement) should state the material facts with sufficient brevity and precision so that the other party can know what case it must meet; it should not be kept guessing as to what the opponent wanted to convey by a vague pleading (Bangladesh v Abdul Jabbar Sheikh, 2007 BLD (AD) 29). When pleading facts, a distinction must be drawn between:
- facta probanda (ie, facts which are to be proved); and
- facta probantia (ie, the evidence by which the facts in the pleadings are to be proved).
Notably, a party is entitled to know only those facts that comprise part of its case (facta probanda), and not the facts by which its case may be proved (facta probantia) in respect of Bangladesh.
In support of such stated facts, all requisite documents must be filed along with the pleading itself. If any party requires further documentation from the opponent, it may apply to the court for an order directing the opponent to make discovery on oath of the documents which are or had been in its possession relating to any matter in question therein, in accordance with Order XI, Rule XII of the Code of Civil Procedure, 1908. Upon hearing the application, the court may either:
- refuse the application; or
- make such order in general or limited to certain classes of documents.
Further, Section 30 of the Code of Civil Procedure enables the court to order on its own initiative, among other things:
- the delivery of and response to interrogatories; and
- discovery which is necessary or reasonable in the absence of an application by either party (Abul Kalam v Fazlul Huq, 1998 BLD 442).
There is also scope for discovery by interrogation, which enables a party to require information from its adversary for the purpose of maintaining its own case or destroying is adversary’s case of. A party may deliver interrogatories with leave of the court within 10 days of the date of the framing of issues. Generally, interrogatories are allowed whenever the responses to them will serve either:
- to prove the case of the party administering the interrogatories; or
- to destroy the case of the opponent.
Interrogatories cannot be administered:
- for the purpose of knowing what evidence will be produced by the opponent;
- as regards any confidential or privileged communication between the party and its legal adviser, which would involve disclosures injurious to the public interest;
- which are scandalous, irrelevant or not bona fide for the purpose of the suit or not sufficiently material at that stage;
- which are in the nature of cross-examination or which involve a question of law; or
- which are in the nature of fishing expeditions.
5.2 What rules on third-party disclosure apply in your jurisdiction?
The court may, at any time and either of its own motion or on application by the party concerned, issue a summons to persons whose attendance is required either to give evidence or to produce documents in accordance with Section 30(b) of the Code of Civil Procedure, 1908. In this respect, there is no bar to issuing summons on a witness for a second time; but if the application is not bona fide, it may be refused (Dildar v Sharif, 43 DLR 196).
5.3 What rules on privilege apply in your jurisdiction? Does attorney-client privilege extend to in-house counsel?
The rules on privileged communication are mostly encapsulated in the Evidence Act, 1872. Section 122 of the Evidence Act prevents disclosure through giving evidence in court of the communications of a husband with his wife. Prima facie, such communications may not be permitted to be deposed or disclosed, unless the husband consents. However, this does not mean that no other evidence which is not barred under Section 122 of the Evidence Act or other provisions of the act can be given. Section 123 of the Evidence Act provides that evidence derived from unpublished official records which relate to any affairs of state cannot be given unless the head of the relevant department gives permission on its behalf. Section 124 of the act is designed to prevent the disclosure of official papers. The specific object of this proviso is to prevent the disclosure of confidential information that is not known outside the relevant circles; it has no application if the information has already been disclosed to a member of the public to whom it was not initially made known in confidence.
Sections 126 to 129 of the Evidence Act deal with attorney-client privilege. Legal advisers, attorneys and their interpreters, clerks and other servants are not permitted:
- to disclose any communications made to them in the course and for the purpose of their professional employment; or
- to state the contents or condition of any documents with which they have become conversant in the course of and for the purpose of their professional employment.
Section 126 is not restricted to oral communications only, but extends to facts that have been observed by the pleader in the course of and for the purpose of his or her employment, and that he is not bound to disclose without the consent of the client. Any fact observed by a legal adviser in the course of his or her engagement which shows that a crime or fraud has been committed since his or her engagement by the client is not protected under this provision. The rule further does not apply when litigation arises between a legal adviser and his or her client and the communications become relevant to the issue.
From a practical perspective, attorney-client privilege may not be extended to in-house counsel. An ‘advocate’ is an advocate entered in the roll under the Bangladesh Legal Practitioner’s and Bar Council Order, 1972 and pertinently, the Canons of Professional Conduct and Etiquette for Lawyers in Bangladesh do not permit an advocate to engage in any other profession or business. Therefore, if an advocate joins a company in the capacity of in-house counsel, he or she must give up his or her enrolment with Bar Council and the aforesaid provisions will no longer apply to him or her.
5.4 How have technological advances affected the disclosure process in your jurisdiction?
There is no law on electronic disclosure in Bangladesh. However, is acknowledged that judiciaries around the world have become increasingly sophisticated in their use of technology, and that Bangladesh must do likewise in recognition of the increasingly important role that technology plays in the management and administration of justice.
In terms of disclosure in litigation, Bangladesh is yet to take any steps in this regard and the traditional methods of disclosure remain operative. However, there is room for the parties to voluntarily agree on a disclosure mechanism which may include electronic evidence and other technologically advanced forms of disclosure. In view of the provisions of the Information and Communication Technology Act, 2006, any evidence that can be produced in paper form may also be produced in electronic form, unless it relates to ownership of title to land.
5.5 What specific considerations should be borne in mind during the disclosure process, for both plaintiff and defendant?
The plaintiff and the defendant should consider the following during disclosure:
- the relevant disclosures – that is, all supporting documents must be presented together with the pleadings, so that the other party understands its opponent’s case and the question of further discovery by interrogatories or by documents does not arise;
- the risk of exposing weaknesses in one’s own case;
- that the disclosure requested by application for discovery of documents under Order XI, Rule XII of the Code of Civil Procedure, 1908 is material to the question in controversy and the application is made without delay;
- the possibility of using disclosed information or documents for purposes other than the subject matter in question;
- the rules of privilege, as applicable in Bangladesh; and
- the scope of raising an objection against disclosure on the grounds that it is immaterial, inadmissible or against public policy.
6.1 What types of evidence are permissible in your jurisdiction?
The Evidence Act 1872 permits both oral evidence and documentary evidence. Section 59 of the act provides that all facts, except the contents of documents, may be proved by oral evidence. Such oral evidence must be direct, as per Section 60.
The contents of documents may be proved by primary or secondary evidence, according to Section 61 of the act. ‘Primary evidence’ refers to the document itself produced for the inspection of the court. Where a party seeks to prove the contents of a document, the best evidence rules require that it produce the primary evidence in original form (Afzal Meah v Bazal Ahmed, 45 DLR 15). In the absence of primary evidence, a party may be allowed to prove its case by means of secondary evidence. Secondary evidence may be presented:
- of the existence, condition or contents of a document where the original is shown or appears to be in the possession or power of the person against which the document is sought to be provided, or of any person legally bound to produce it; or
- where the existence, condition or contents of the original have been proved to be admitted in writing by the person against which it is proved or by its representative in interest (Executive Chairman, BEPZA v M/S Abdul Mannan, 66 DLR (AD) 86).
A party that produces secondary evidence of a document is not relieved of the duty to prove the execution of the original. Even where a document is exhibited without objection, the court must be satisfied as to its execution (Sova Rani v Abdul Awal Mia, 47 DLR (AD) 45).
Evidence may further be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts which are relevant to a fact in issue or a matter in dispute. Hence, evidence that does not determine the facts in issue or relate to relevant facts is not admissible or permissible in court.
6.2 What rules apply to expert evidence in your jurisdiction? What specific considerations should be borne in mind when preparing and presenting expert evidence?
Section 45 of the Evidence Act 1872 deals with expert evidence and allows for the appointment of an expert in order to assist the judge in forming an opinion on a point of foreign law or of science or art, or on the identity of handwriting or fingerprints. Section 45 is an exception to the general rule regarding the exclusion of opinion evidence. This section is exhaustive regarding the matters on which expert evidence can be provided. However, the expression ‘science or art’ includes almost all branches of human knowledge that require dedicated study, experience or training. The application of modern technology in light of modern science in order to determine and detect truth under Section 45 must also be considered by the court (Noor Alam v Sonali Bank, 17 BLC 764).
Section 45 of the Evidence Act does not compel the court to act on the opinion of the expert. Hence, this expert opinion is not binding on the court as a substantive piece of evidence, but is only persuasive in nature to assist the court in reaching a satisfactory conclusion. An expert must provide reasons in support of his or her opinion. While evidence from an expert is subject to consideration like any other evidence, it should be treated with great caution (Sheikh Salim Uddin v Ataur Rahman, 43 DLR 18: 11 BDL 336). Moreover, expert evidence can be secured only through order of the court and not voluntarily by the party to the suit.
The term ‘expert’ has special significance, and no witness is permitted to express his or her opinion unless he is an ‘expert’ within the meaning of the term as set out in Section 45 of the Evidence Act (Manju Mia v Shiraj Mia, 56 DLR 264). It is the court which will decide whether a person can be said to be an expert. In this regard, the court will consider the person’s skill, training and experience. In order to be competent as a witness, an expert need not have acquired his or her knowledge professionally; it is sufficient to have special experience therein.
An expert must state his or her opinion in court and must be examined and cross-examined similar to other witnesses (Balkrishna Das v Rada Debi, AIR 1989 All 133). Hence, a report, certificate or letter provided by an expert will not be enough if the author does not appear in court to prove it.
6.3 What other factors should be borne in mind when preparing and presenting evidence in your jurisdiction?
The factors that must be considered in preparing and presenting evidence include the following:
- probative value; and
- the weight to be attached upon admission.
Moreover, counsel should be well prepared to cross-examine the witnesses of the opposite party, in order to highlight any discrepancies or inconsistencies in their testimony. In addition, it is crucial to examine the evidence submitted by the other party in order to be able to refute its claims.
7 Court proceedings
7.1 What case management powers do the courts have in your jurisdiction?
The Supreme Court has been empowered by the Constitution of the People’s Republic of Bangladesh to regulate the practice and procedure of each division of the Supreme Court and of any court subordinate to it. However, this power is subject to any law made by Parliament and prior approval of the president of Bangladesh. Further, Article 109 of the Constitution provides that the High Court Division shall have superintendence and control over all courts and tribunals subordinate to it. Typically, the rules promulgated by the Supreme Court of Bangladesh from time to time determine the manner in which cases should be managed in both the Supreme Court and the subordinate courts. In addition, the Supreme Court is empowered to form committees for the purpose of ensuring proper case management.
7.2 Are court proceedings in your jurisdiction public or private? If the former, are any options available to the parties to keep the proceedings or related information confidential?
Generally, the hearings of the court are held in public in Bangladesh. However, if it is necessary to hold the proceedings in private, the courts may facilitate this. For instance, as per Section 54(3) of the Children Act, 2013, considering the best interests of the child in contact with the law, the courts must maintain confidentiality regarding all information about the child. In order to do so, any trial involving a child will be conducted privately, in an in camera trial session.
7.3 How is the applicable law determined? What happens in the event of a conflict of laws?
In general, the applicable law of civil litigation is determined by the nature of the claim and the cause of action. Unless the parties agree to be governed by a law of their choice, the courts in Bangladesh will make a rebuttable presumption that the parties have agreed to be governed by the law of Bangladesh. In case of a dispute involving real property, the law of Bangladesh is by default considered as the governing law. In case of family law issues, the domicile of the parties and the law under which the marriage took place become relevant factors in determining the governing law. There are instances of the application of the rule of forum non conveniens in case of a conflict of interests. It is safe to assume that in resolving a conflict of laws, the Bangladesh courts will lean heavily towards following English law, with necessary variations involving various conventions that the United Kingdom has signed to align its conflict of laws rules with the EU regime.
7.4 What rules apply to the joinder of third parties?
The courts are empowered to strike out the name of a party that has been improperly joined to the proceedings or to add a party which ought to have been joined to the proceedings. However, as per Order 1, Rule 10 of the Code of Civil Procedure, 1908, the joinder of third parties will be allowed if:
- it is necessary for the determination of the real matter in dispute; and
- the presence of the third party before the court may be necessary in order to enable the court to adjudicate upon and settle, effectively and completely, all of the questions involved in the suit.
An order for the joinder of third parties may be passed either upon or without the application of either party in the proceedings.
7.5 How do the court proceedings unfold in your jurisdiction? What specific considerations should be borne in mind at each stage of the process, for both plaintiff and defendant?
In general, the parties should take care at each step of civil proceedings. It is crucial to ensure that the necessary documents have been duly filed and presented to the adjudicator. In addition, each party should meticulously examine the evidence submitted by the other party in order to be able to refute it. In civil proceedings, the threshold of proof of evidence is ‘on a balance of probabilities’. Therefore, refuting the case of the opponent is as crucial as proving one’s own case. Further, the procedural rules and the timelines set out therein must be diligently followed. There are many instances in which judgment has been passed against a party, despite it having a strong case, due to procedural impropriety or the expiry of the limitation period.
Civil proceedings may be divided into four stages, each of which is discussed separately below.
Pre-proceeding stage: This is the initial stage of mediation and negotiation, with the aim of amicably resolving the matters in controversy. There is no statutory provision for mediation in civil proceedings as a pre-action step in Bangladesh. Although Section 89A of the Code of Civil Procedure provides for mediation or arbitration to settle disputes out of court, this avenue opens up after the defendant has filed its written statement. Hence, unless the parties take the initiative to resolve the dispute themselves or pursuant to any contractual provision, there is no statutory alternative dispute resolution mechanism or requirement in Bangladesh. The only available mandatory mediation process is in family matters under the Muslim Family Law Ordinance 1961 and the Family Court Ordinance, 1985.
Proceeding stage: This proceeds as follows:
- Institution of the suit: As per Section 26 of the Code of Civil Procedure, a suit must be instituted by the presentation of a plaint. In Order 7 of the code, a ‘plaint’ is defined as a statement of claim, which is a document presented for the filing of a suit. Depending on the applicable territorial and pecuniary jurisdiction, the plaint must be filed with the appropriate court. Once the plaint has been filed, the court fees have been paid and a number has been given, a civil suit is considered to have been set in motion.
- Issue of process: After filing of the suit, the next step is for the court to issue summons to the defendant for the purpose of making it appear to answer the claims of the plaintiff.
- Service of summons: At this stage, summons with a copy of the plaint is served upon the defendant by registered post as per Order V of the code.
- Return of summons, filing of written statement: Upon receipt of the summons, the defendant will appear in court on the date specified and submit its written statement in response to the claims in the plaint.
- Alternative dispute resolution: Once the plaint and the written statement have been submitted to the court and the dispute is clear, the court will usually fix a date for the first hearing. At this stage, prior to commencing the hearing, the court may order that mediation be carried out either by itself, by the engaged pleader of the parties or by a mediator appointed from a panel prepared by the district judge. If the parties to a suit at any stage of the proceedings apply to the court for withdrawal of the suit on the grounds that they will refer the dispute in the suit to arbitration for settlement, as per Section 89B of the code, the court will allow such application and permit the suit to be withdrawn.
- Hearing: If the attempt at alternative dispute resolution is unsuccessful, the court will proceed with hearing of the suit. On the first date of hearing, the court will frame the issues of both fact and law. If there are no such issues to be framed, such as in small cause suits, the first hearing is the day on which the trial will begin.
Trial stage: This proceeds as follows:
- Opening of the case: Typically, the plaintiff has the right to commence the trial with its opening speech. However, depending on who bears the burden of proof, the defendant may also start the trial with its speech. In the opening speech, the opening advocate usually states the nature and issues of the case. He or she will also summarise the facts in issue and state briefly the evidence of the witnesses.
- Peremptory hearing: After the opening of the case, examination in chief and cross-examination of the witnesses will be conducted. If the plaintiff fails to raise a prima facie case, it is the duty of the defence lawyer to raise the point of ‘no case to answer for the defendant’. If the judge is satisfied that the plaintiff has failed to prove a prima facie case in favour of its claim, the judge will dismiss the suit. If the plaintiff proves a prima facie case, cross-examination and re-examination followed by examination in chief will be conducted.
- Closing speech: As soon as evidence is closed, the pleaders will be called upon to argue their cases. In a closing speech in a civil trial, counsel will usually reinforce the client’s case backed up by evidence, along with an argument on the law and legal principles, with the aim of persuading the judge.
Judgment: Following completion of the hearing, the court will either pronounce judgment at once or fix a date for judgment. A judgment is merely the reasoning based on which the court’s decree is passed. A ‘decree’ is defined in Section 2(2) of the Code of Civil Procedure as an official expression of adjudication that permanently determines the rights of the parties in a matter of controversy.
Enforcement and execution of decree: Finally, the steps to enforce and execute the decree will be taken.
7.6 What is the typical timeframe for the court proceedings?
The timeframe for court proceedings largely depends on the nature of the suit and the court before which it has been instituted. Hence, it is not possible to provide a general estimate of the timeframe for court proceedings. However, due to the huge backlog of cases before the Bangladesh courts, legal proceedings in Bangladesh are time consuming, which is why both counsel and parties are inclined towards pursuing alternative dispute resolution out of court.
8 Judgment and remedies
8.1 What types of judgments, orders and other remedies are available in your jurisdiction?
The adjudication of a court of law may take one of two forms:
- Decree: A ‘decree’ is the formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit; and may be either preliminary or final (Section 2(2) of the Code of Civil Procedure).
- Order: An ‘order’ is a formal expression of any decision of a civil court which is not a decree.
A ‘judgment’ is defined as a statement given by the judge on the grounds of a decree or order. Hence, a judgment is the reasoning of the decree or order passed by a court of law.
On final disposal of a suit, the court can award the following relief:
- specific performance of contracts; and
- prohibitory or mandatory injunctions.
Damages for breach of contractual terms are only compensatory in nature, as opposed to punitive. A party that seeks damages must prove its loss.
9.1 On what grounds may a judgment be appealed in your jurisdiction?
An ‘appeal’ is an application submitted by a party to an appellate court requesting it to set aside or reverse a decision of a subordinate court. The right to appeal is created by statute; there is no inherent right to appeal. The appeal is considered to be a continuation of the trial at the subordinate court. Appeal may lie on matters of law as well as matters of fact. The appellate court must consider both points of law and points of fact in its judgment of appeal. The appellate court must:
- consider the evidence in detail;
- make a critical analysis of the evidence;
- consider the facts and circumstances of the case;
- make an independent decision of the trial court; and
- arrive at its own finding.
Hence, an appellate court is a court of both law and fact. An appeal may thus lie on the grounds of:
- erroneous application of the law to the facts of the case;
- patent illegality of the judgment;
- arbitrariness of the decision;
- failure to consider material facts; or
- breach of the principles of natural justice.
9.2 What is the appeals process? Is the judgment stayed while the appeal is pending?
Typically, a party which is aggrieved by an appealable order or a decree may appeal to the appropriate appellate forum within the time limit prescribed for filing such appeal in the Limitation Act, 1908. The appeal must be filed in the specific format prescribed by the appellate forum. The appropriate court fees and any other fees payable must also be paid prior to filing of the appeal. In the memorandum of the appeal, brief background facts and the grounds of appeal should be clearly mentioned. In addition, a certified copy of the impugned order or decree should be annexed to the memorandum of appeal.
The impugned order or decree is not stayed automatically simply by the filing of an appeal. The aggrieved party must apply for a stay of operation of the impugned order or decree. If the court stays the operation of the impugned order of decree, only then will it be stayed pending hearing of the appeal.
9.3 What specific considerations should be borne in mind during the appeals process, for both plaintiff and defendant?
Similar to contesting in a suit, in an appeal the appellant should take care to ensure that it includes all grounds in the memorandum of appeal and submits all relevant and necessary documents together with the appeal. The limitation period should also be considered.
The defendant, on the other hand, should object to any grounds taken by the appellant that introduce new facts into the proceedings at this stage.
10.1 How are domestic judgments enforced in your jurisdiction?
‘Execution’ is the enforcement of a decree by a judicial process which enables the decree holder to realise the outcome of the decree passed by the competent court in its favour. The application for execution must be presented to the court that passed the decree. The decree holder should take care to comply with the requirements of Order 21, Rule 11-14 in this regard. The mode of execution of a decree may be by:
- delivery of any property specified in the decree;
- attachment and sale or sale without attachment;
- arrest and detention in civil prison of the judgment debtor;
- appointment of a receiver;
- partition; or
- such other manner as the nature of the relief may require.
Such an order will be passed once any objections raised by the judgment debtor have been heard by the court.
Judgments and orders passed by the High Court Division that are not decrees may be enforced by initiating contempt proceedings if the other party has not already complied with the judgment or order.
10.2 How are foreign judgments enforced in your jurisdiction?
The Code of Civil Procedure, 1908 governs the recognition and enforcement of foreign judgments in Bangladesh. A judgment of a foreign country cannot be enforced in Bangladesh in the absence of any reciprocating agreement. A ‘reciprocity territory’ is a country or territory that the government may from time to time, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section. A judgment passed by a court in a non-reciprocating territory may be considered ‘public document’ evidence pursuant to Section 74 of the Evidence Act, 1872. A foreign judgment may be enforced by filing a fresh suit using the foreign judgment as evidence of the debt; in this situation, the court will dispose of the suit in summary proceedings.
To make a foreign judgment conclusive in Bangladesh, it must be shown that it complies with the six conditions stipulated under Section 13 of the Code of Civil Procedure. If the judgment falls within any one of these conditions, it will not be considered conclusive and consequently will not be legally effective and binding.
Once enforceability has been established, a foreign judgment can be enforced in the same way as a decree passed by the local court can be executed (Section 44A of the code). The court may order execution of a decree by:
- delivery of any property specifically decreed;
- attachment of sale or sale without attachment;
- arrest and detention in prison;
- the appointment of a receiver; or
- such other manner as the nature of the relief granted may require.
Further, the executing court may direct the judgment debtor to deposit the decretal amount with the court and subsequently direct the remittance to the decree holder (Section 51 of the Code of Civil Procedure).
10.3 What specific considerations should be borne in mind during the enforcement process, for both plaintiff and defendant?
The judgment holder should bear in mind that a decree of a superior court of any reciprocating territory can be executed in Bangladesh by filing a certified copy with the district court. In this regard, ‘district court’ means the court of the district judge. Thus, the district court has jurisdiction to hear applications for the recognition and enforcement of foreign judgments. Each district judge has jurisdiction to entertain an application for the enforcement of a foreign judgment against the defendant whose place of business is located in the respective district. A certified copy of the judgment is required in support of an application for recognition and enforcement of a foreign judgment, as per Section 14 of the Code of Civil Procedure.
A defendant should remember that it can challenge the conclusiveness of the matter and recognition and enforcement of a foreign judgment on the following grounds:
- The judgment was not pronounced by a court of competent jurisdiction;
- The judgment was not given on the merits of the case;
- The judgment was given on an incorrect view of international law or a refusal to recognise the laws of Bangladesh;
- The judgment is opposed to natural justice;
- The judgment was obtained by fraud; or
- The judgment is founded on a breach of Bangladeshi law.
Therefore, the defendant should scrutinise the foreign judgment to determine whether any of the above grounds apply and design its defence submissions accordingly.
11 Costs, fees and funding
11.1 What costs and fees are incurred when litigating in your jurisdiction?
Typically, the costs and fees involved in litigation in Bangladesh are:
- court fees;
- legal counsel fees; and
- other miscellaneous fees, such as the cost of affidavits and notaries public.
Apart from these fixed fees, in special circumstances the court may order that a party pay for appointment of a receiver or to secure the value of the dispute.
11.2 Are contingency fees and similar arrangements permitted in your jurisdiction?
Advocates are not allowed to charge contingency or conditional fees in litigation in Bangladesh. However, other than in court litigation, lawyers can charge conditional fees for services such as:
- the recovery of debts out of court;
- cross-border transactions; and
- the set-up of projects in Bangladesh.
11.3 Is third-party funding permitted in your jurisdiction?
The funding of litigation by third parties is a grey area of law in Bangladesh. We are not aware of any specific restrictions on third-party funding.
11.4 What other strategies should parties consider to mitigate the costs of litigation?
To mitigate both costs and time, the parties should seek to resolve their dispute out of court. In order to do so, when executing contracts, the parties should include dispute resolution clauses that clearly provide for an out-of-court dispute resolution mechanism.
12 Trends and predictions
12.1 How would you describe the current litigation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
In the past few years, the parties to disputes have increasingly been pursuing out-of-court settlements by way of negotiation, mediation or arbitration. In our experience, the parties to disputes are now more comfortable with resolving their disputes through arbitration in order to save both money and time.
Recently, the Civil Courts Act, 1887 (Amendment) 2021 was enacted, which raised the financial jurisdiction of the lower court judges for the disposal of civil cases. According to this amendment, pecuniary jurisdiction has been increased to BDT 1.5 million instead of the existing BDT 200,000 for an assistant judge; and to BDT 2.5 million instead of BDT 400,000 for a senior assistant judge trying civil suits. Additionally, for appeals, the pecuniary jurisdiction has been raised to BDT 50 million from BDT 500,000 for a district judge. This increase in the pecuniary jurisdiction of the lower courts was introduced with the aim of reducing the backlog of cases in the High Court Division.
Due to the COVID-19 pandemic and the subsequent nationwide lockdown, the litigation landscape has substantially changed. Although the subordinate courts are open for operation while maintaining safety protocols, the Supreme Court is mostly operating virtually. We do not anticipate that the Supreme Court will return to physical operation any time soon.
13 Tips and traps
13.1 What would be your recommendations to parties facing litigation in your jurisdiction and what potential pitfalls would you highlight?
Due to the exorbitant amounts of time and costs involved in litigation, it is vital to engage experienced and knowledgeable counsel. Otherwise, flawed legal advice or a wrong step in litigation can cost the whole case itself or substantial amounts of money and time. In addition, it is crucial to properly assess the merits of the case. Our top tip is to appoint experienced and expert legal counsel who can take ownership of the case, provide authentic and optimal legal advice and take the best course of action to resolve the dispute.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.