In memory of Khondker Mahbubuddin Ahmed

by K Shamsuddin Mahmood | Published: 00:00, Mar 01,2021

 
 

Khondker Mahbubuddin Ahmed

ARE we about to forget those celebrated, notable and legendary lawyers who reigned the Supreme Court Bar of Bangladesh for decades with their law practice and demonstrated impeccable and extra-ordinary legal acumen, and even today many consider them as ‘institutions’ by themselves in the legal arena of Bangladesh? How many budding advocates and barristers of present generation know about such professionals, their depth of knowledge or other admirable qualities that make them superior and unforgettable? Over the years what the Supreme Court Bar or their Association has done so far to ‘nurture and cherish’ the exceptional qualities of such legendary personalities before the new ‘generation of lawyers’ to come across, know and learn?

Offhand, I can mention half a dozen of such legendary lawyers who were famous in the recent past and are still being remembered by practising lawyers in general and Honourable Lordships from the Bench, past and present, of the Supreme Court of Bangladesh. Senior advocates like Hamidul Huq Choudhury, SR Paul, MH Khondker, Barrister Syed Ishtiaq Ahmed, Khondker Mahbubuddin Ahmed, Dr Kamal Hossain, Serajul Huq, Barrister Rafique Ul Huq and Mahmudul Islam and so on (all deceased save Dr Hossain). Except Dr Kamal Hossain, Barrister Syed Ishtiaq Ahmed and Barrister Rafique Ul Huq, none of the above-mentioned legendary personalities had any exposure or opportunity to study English law and attend institutions of repute abroad, or being exposed to different rituals and legal etiquette to learn, adopt and acquire them in the ‘Temples’ where such qualities are nurtured under the English legal system that are expected of barristers. Dr Kamal Hossain had his tertiary level education from Oxford and obtained bachelor of civil law, apart from being a Bar-at-Law and also considered as a jurist within English academia — decades ago I found Sir Ian Brownlie, a renowned legal practitioner and Professor of international law to recollect him as such from this region and shared it with me and one of my friends while we were pursuing LLM programme and had a course in the London School of Economics, under the University of London). Anyways, I intend to portray that all the above legendary lawyers, though had no exposure like that of Dr Hossain or Barrister Ishtiaq Ahmed, were able to mark their footprints of success vividly for new generation of lawyers of the Bangladesh Supreme Court to follow and adopt in order to succeed in life.

To the best of my knowledge, SR Paul, Khondker Mahbubuddin Ahmed and Serajul Huq had their tertiary level studies in the renowned Presidency College of Calcutta of undivided British-India (where Khondker Mahbubuddin Ahmed and Serajul Huq were bosom friends and used to call each other in their nicknames — Firoz and Bacchu respectively and their friendship continued so long they’re alive, despite their differences in political outlook/ideology). During the 1970s and 1980s of twentieth century in almost all civil and criminal matters that went up to the Appellate Division for disposal, these above bunch of lawyers would invariably represent either of the litigant parties and enlightened their Lordships by their eloquent and persuasive submissions. Almost all of them served the Bangladesh Supreme Court Bar Association as president (except maybe one or two), some even for two terms as well, as late lamented Khondker Mahbubuddin Ahmed, in 1979–1980 and again in 1992–1993, when it was his proud privilege to draft and bestow the Bangladesh Supreme Court Bar Association with a constitution of its own (for the first time in its history), which still remains in force for its members to admire and embrace.

Incidentally, today is the death anniversary of late lamented Khondker Mahbubuddin Ahmed and an opportunity for me (as his only son) to offer a thematic discourse on his ‘glorious, splendid legal career and famous reported cases’ that remain as precedents and an everlasting source of legal jurisprudence for learned advocates and legal minds of this generation and beyond to cherish and admire. He was extraordinary for his ‘elegance of expression’ while arguing and submitting his case before any Court of law, be that the Apex Court or not. His inborn ability to cater and marshal facts of a case and graft it in an excellent manner which he espoused with passion (while making submissions) along with his brilliant advocacy, simply made him unsurpassable. He had an astounding and remarkable ability to ‘think while on his legs’ and argued in a way as if a ‘magician brings pigeon out of a hat’ that rendered him invincible for legal counsels of the other sides.

 

Some noteworthy reported cases

PRACTICE of Khondker Mahbubuddin kept him alive in legal arena. His innovated arguments, prudent opinions and juristic views are echoed before the Lordships even today and certainly will continue in the years to come. His name has been cast in the citation books and volumes which cannot be mentioned here within this short span of time — he has more than 500 reported cases. Therefore, we randomly choose to follow couple of judgments wherein the learned senior expounded the law on interpretation of statutes and forwarded innovative and juristic arguments with brilliant intuition.

 

41 DLR (AD) 135

Maria Keshi D’ Rozario/Appellant v Hassan Movies Ltd/Respondent

THIS is a case between a landlord and a tenant, the case was filed by the landlord alleging that rent of the premises was to be paid by 5th of each current month as agreed by tenancy agreement, but tenant deposited rent in the House Rent Controller after 5th of each month. Both in trial court and in revision the tenant lost. So, tenant filed before the Appellate Division where Khondker Mahbubuddin appeared on behalf of the tenant-appellant. Referring to Section 2(8) of the Premises Rent Control Ordinance, argument was placed that the tenant after expiry of the lease tenure, has become statutory tenant, (but not a tenant as contemplated under Section 116 of the Transfer of Property Act, 1882 as based in the trial). On the other point, if deposit of rent after 5th of each month, contrary to term of the agreement, whether valid deposit; Khondker Mahbubuddin, relying on cases reported in 29 DLR SC 13 and 31 DLR (AD) 183, argued that the tenant must offer the rent of a month within the period fixed in the contract, if any, or within the 15th day of the next month as referred to in Section 18(5) of the Premises Rent Ordinance. If the rent offered is refused, the tenant shall remit it by money order within the period fixed, and if the money order returns undelivered, then the tenant shall deposit it with the rent controller within 15 days of the return of money order. All these conditions are fulfilled in this case and, as such, the deposit made on 14th March, 1984 is valid deposit. The appeal was allowed.

 

44 DLR (AD) 1

Pradhip Das alias Shambhu and others/Appellants v Kazal Das Sarma and others/Respondents

KHONDKER Mahbubuddin has called upon to appear as Amicus Curiae. The question whether a monthly tenancy is heritable or not came for consideration before a single bench of the then Dacca High Court reported in 12 DLR (HCD) 37. After consideration of numerous decisions of this subcontinent a single judge of the then High Court of Dacca held that the monthly tenancy is heritable. However, long thereafter, the same question again came before the Appellate Division of the Supreme Court of Bangladesh [reported in 32 DLR (AD) 171]. This time, the Appellate Division reversed the earlier view (reported in 12 DLR); and expounded that the monthly tenancy is not heritable and after the death of the original tenant, tenancy right extinguished (this legal position prevailed for more than a decade). Thereafter, again the Appellate Division (reported in Pradhip Das Vs Kazal Das) took for consideration whether the principle of law expounded in 32 DLR (AD) 137 is correct or not; and Khondker Mahbubuddin was invited as an Amicus Curiae.

While submitting as Amicus Curiae, Khondker Mahbubuddin has reiterated his earlier stand that the right of a monthly tenant is heritable and that the earlier decision of this court was not based on correct interpretation of Sections 105 and 106 of the Transfer of Property Act, 1882 governing ‘lease of immoveable property’. Thus, the Appellate Division accepted the argument and [upon reviewing the earlier judgment reported in 32 DLR (AD) 137], laid down the principle that ‘a tenancy from month to month is a lease which, like any other lease, is contemplated only in Section 105 of the Transfer of Property Act, 1882 and that the right therein is heritable and not personal to vanish with the tenant’s death.’

 

49 DLR (AD) 177

Govt of Bangladesh/Appellant v Tajul Islam/Respondent

THIS appeal arose against judgment and order passed in a writ petition and Khondker Mahbubuddin appeared on behalf of writ petitioner-respondent.

The writ petitioner was a businessman, who carried on business of manpower export holding a licence for that purpose. His licence was cancelled by the government, although show cause notice was issued but it was vague and contained no particulars of fact and the reply given thereto was not considered by the government. Rule was made absolute by the High Court Division. However, the matter went to the Appellate Division and on the hearing of appeal, Khondker Mahbubuddin submitted that serving of a mere notice without tangible allegation of facts giving particulars and thereby depriving the person accused an effective opportunity to defend himself does not satisfy the test of proper observance of the principle of natural justice, if the notice is so vague and illusionary that the person cannot give a proper reply then the authority will be attributed with ‘colourable exercise of power’.

Accepting the submission of Khondker Mahbubuddin the Hon’ble Appellate Division by majority judgment (Author Judge ATM Afzal, CJ) held that a show cause notice is not a technical requirement or ideal ceremony; in not giving specific facts with particulars in the show cause notice, the role of fairness, which is a part of principle of Natural Justice, is offended. The order must also indicate that the reply of the person proceeded against was not acceptable to the government so that in the case of a judicial review of a consequent order of cancellation of licence, the court become satisfied that the authority was satisfied to take action after application of mind to the aggrieved person’s case (in reply to show cause notice).

 

50 DLR (AD) 73

Aung Shwe Prue Chowdhury/Appellant v Kyaw Sain Prue Chowdhury and others/Respondent

AFTER the death of the last Chief Bohmongree Mong Shaw Prue (on June 16, 1996) a vacancy arose in the chiefship of Bohmong Circle. According to the custom of Bohmong circle, the successor has always been filled in by the eldest in male line, provided not unfit. Both the appellant and the respondent no 1, claimed the chiefship.

On the recommendation of the Divisional Commissioner, Dr Fazlul Hassan Yousuf, secretary, special affairs division prepared a summary for the Prime Minister, where the appellant was recommended for appointment. However, that summary was not placed before the Prime Minister, and a subsequent summary was prepared by Kazi Golam Rahman, acting secretary, special affairs division, wherein the political background of the appellant and the support of the majority of Raj family for respondent no 1 have been stated. Thus, based on such summary, the government appointed the respondent no 1, as the chief of Bohmong Circle. Being aggrieved, the appellant filed a writ petition under the Chittagong Hill Tracts Regulation, 1900, challenging the notification of November 21, 1996 for appointing and recognising the respondent no 1, as the chief of Bohmong Circle.

The High Court Division held that Bohmong chief is not a holder of any government post but only a political office and is merely nominated and recognised by the government from amongst the members of the ruling family considering fitness and age and, thus, discharged the rule. On appeal (by Aung Shwe Prue Chowdhury), Khondker Mahbubuddin was successful in convincing the Appellate Division and the appeal was allowed. The Appellate Division held that the court will only inquire whether the selection has been made following the tradition, custom and usage and, if so made, the judiciary will not intervene. But if extraneous considerations have influenced the executive decision, then the court certainly has the power to declare the selection to have been made without lawful authority. In the said case, extraneous considerations influenced the executive.

 

2004 BLD (AD) 92

SSA Bangladesh Ltd v Engineer Mahmud-ul-Islam and others.

In favour of appellant/petitioner

IN SPITE of the commonality, our legal system needs solutions based on our own capacity. The uniqueness and sui generis status of Bangladesh has been reflected in his submission. He argued that

‘We cannot expect to get the same terms and facilities provided to other big neighbouring countries including India by foreign investors. Our situation should not be compared to that of India.’

He was more inclined to the liberal economy and argued that Bangladesh in order to attract foreign investment has to offer much more favourable terms and conditions than India... The litigation had been initiated with the malafide intention of delaying the implementation of the project till 2005 when the WTO Agreement comes into force and open up the market for free trade and services. At such time Bangladesh, in competition with India, will be unable to attract foreign investment to build private port terminals.

It is important to mention here that the words of wisdom and prediction of Khondker Mahbubuddin has been well reflected afterwards in Bangladesh economy.

 

58 DLR (AD) 150

Shahudul and others v State

THE learned Khondaker was appearing on behalf of the appellant petitioner and argued that in the facts and circumstances of the case ends of justice would best be served if the contemnor is censured instead of maintaining the conviction against him.

Though the appellant first replied to the queries with certain comments which definitely amounts to contempt of court but subsequently, he withdrew the said reply containing the comments and tendered unqualified apology and placed himself at the mercy of the court to exonerate him of the charges of committing contempt of court and that the appellant himself was ready to file another application for withdrawing the said reply and accordingly, liable to be dealt with leniently with a punishment of censure. The learned counsel has further submitted that the subsequent conduct of the appellant generally manifests his penitence and remorse for his indiscreet act.

The submission of the learned senior assimilates with the idea of former dean of Harvard Law School, Martha Minow’s book titled ‘When Should Law Forgive’.

 

43 DLR 282, 10 BLD 419

Jahangirnagar University Co-operative Housing Society v Md Mujibur Rahman & Others

KHONDKER Mahbubuddin, appearing for the petitioner pressed this petition only on one point. He submitted that the amendment made in the plaint by Order dated November 15, 1989 has changed the nature and character of the plaint. He argued that the amendment of the plaint may be made at any stage, the character of the plaint cannot be changed by such amendment. He further submits that the above order was passed after examination of the plaintiff and the plaintiff opposite party by way of an amendment has introduced something new in the plaint which has totally changed the character of the plaint. While pressing his point, he relied on a decision reported in 13 DLR 871 (Alokeshi Banik/Petitioner Vs Aftabuddin/Opposite Party). He submits that the above decision has enunciated a principle of law on amendment of plaint made under Order 6, Rule 17 of the Code of Civil Procedure to the effect that amendment of the plaint cannot be allowed when such amendment changed the character of the plaint, in other words, an amendment if allowed would change the character of the plaint though not the character of the suit, as that will prejudice the defendant in his defence.

Khondker Mahbubuddin realised the need for separate commentaries on our basic laws. After decades of the independence, we were still lacking comprehensive commentaries of our own. The dominant dependency to the books of other jurisdiction in our courtyard was a concern he realised. As we all are aware that the late learned Mahmudul Islam, along with senior advocate Probir Neogi, produced an excellent and unparalleled contribution to CPC. The learned Mahmudul Islam acknowledged Khondker Mahbubuddin in the preface of his CPC commentary in the following words:

‘During the British period some very useful commentaries were published and these served the purpose of the lawyers and students. But with the lapse of time and amendments of the law in different directions in the three countries — Bangladesh, India and Pakistan — the need for a separate commentary has been felt. Some senior lawyers particularly Khandker Mahbubuddin Ahmed urged me to do the job and I also wanted to do it.’

To conclude, one of the outstanding virtues of Khondker Mahbubuddin was his willingness to help people in need and his humility and modesty. Though charities of his are not that widely known, since he never wished to publicise them, rather live in a happy anonymity. As meticulously charitable, his empathy for causes and involvements with them was legendary. As a man close to nature, his humility was natural and his social instinct was never pretentious. His cynicism was always hopeful and his acerbic criticism never personally motivated. Fame and fortune did not increase the hat size of this legendary man. No trace of arrogance or conceit existed in his character, though a short-tempered man but he had the ability to control that. He was tender towards the bashful, gentle towards the distant and merciful towards the absurd.

In the last lap of his 89 years of life and journey towards the creator, he was ailing with old age complications for about two and a half years or so, when he was enjoying care and love from the family of his only son and, in particular, his daughter-in-law and used to live with them in their residence at Dhaka and breathed his last on March 1, 2014.

 

K Shamsuddin Mahmood is a professor and dean of law at BRAC University.

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