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CONTENTSAppellate Division 65-80 High Court Division 385-448

Lawyers & Jurists

Cit 1 LNJ (AD), 1 LNJ etc.

Lawyers & JuristsLawyers & Jurists2012

Cheif Editor :Syed Mokaddas Ali, Advocate, Supreme CourtEditor :Borun Kumar Biswas, AdvocateReporters :M. Arif Billah, Bar-at-Law :SK. Reajul Haque, Advocate, Supreme Court :Md. Ashik Ferdous, Advocate, Supreme Court :Md. Faruk Hossain, Advocate

Appellate Division1. Mahua Khair VS Amena Bgum Ali Ispahani. (Civil) 68

High Court Division1. Government of Bangladesh Vs. Kothari Fermentation and Biochem Ltd., (Civil) 4142. Kabir Ahmed and others Vs. Sultan Ahammed and others, (Civil) 3413. Khaled Jamel Ahmed Adel and others Vs. Artha Rin Adalat No. 3, Dhaka and others (Spl. Original) 3974. Md. Abu Taher Vs. Md. Jashim Uddin and another, (Civil) 4045. Md. Mahfuzur Rahman and another Vs. Government of Bangladesh and ohters (spl. Original) 4446. Md. Mazedul Islam (Limon) Vs. Nazi Fatema Tamanna and others, (Civil) 4317. Md. Monsur Hossain Vs. Khokon alias Md. Shah Newaz and others, (Civil) 4368. Nazir Ahmed and others Vs. Md. Fajal Ahmed and ohters, (Civil) 4139. Rupsha Fish and Allied Industries Ltd. Vs. The Premier Bank Limited and others (Civil) 38610. Sajiuddin Molla Vs. Abdur Rahman and others, (Civil) 43211. The State Vs. Nowsha alias Nowser (Crl. Appeal) 404

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Reg. No. DA-6152

Mahua Khair Vs. Amena Begum Ali Ispahani (Muhammad Imman Ali, J.) I LNJ AD (2012) 68

APPELLATE DIVISION (CIVIL)

Madam Nazmun Ara Sultana, J. . Mr. Muhammad Imman Ali, J. Mr. Md. Shamsul Huda, J.

Judgment 10th January, 2012

} }

Mahua Khair (in both appeals)

... Appellant = Versus = Amena Begum Ali Ispahani (in both appeals)

... Respondent

Income Tax Ordinance (XXXVI of 1984) Section 184 The law regarding getting the necessary Income Tax Clearance Certificate was amended on 30.06.1992 by section 8(21) of the Finance Act, 1992 (Act No. 21 of 1992) when section 184 of the Income Tax Ordinance 1984 was abolished. From then on it was necessary only to pay 6 percent of the sale price at the time of registration. Even at this point the purchaser did not take any step towards completion of the contract. The liquidated damage is payable by the purchaser. .. (17 & 18)

Specific Relief Act (I of 1877) Section 12 Contract Act (IX of 1872) Section 55 Although it was stipulated in the agreement that the contract for sale should be completed within a period of one year, the breach of such condi-tion was sanctioned by the payment of liquida-ted damage. Therefore, time was definitely not of the essence of the contract. The vendor did not take any action on or after 08.08.1993 to cancel the agreement. Rather, her acceptance of Tk. 15,00,000.00 of the consideration money on 15.02.1994 has negated the aspect of time of the essence of the contract. According to section 55 of the Contract Act, if it was the intention of the parties that the time should not be of the essence then the contract does not become voidable, but the promisee becomes entitled to receive compe-nsation for the delay in performance of the agreement by the purchaser. It appears that nine and a half years had elapsed from the time of contract till the filing of the suit. The seller is entitled to receive taka two crore by way of compensation. ...(32, 44 and 60) Civil Appeal Nos. 148-49 of 2007, From the judgment and order dated 7th July, 2004 passed by the High Court Division in First Appeal Nos. 48 and 49 of 2002)

5 BLD (AD) 51; Hajee Saru Meah Sowdagar and another Vs. Musammat Al-Haj Jahanara Begum and others, 8 DLR 616; Jamshed Khodaram Irani Vs. Burjorji Dhunjibhai,43 I.A. 26; Kali Das Ghosh Vs. Mungiram Bangur and Company, AIR (1955) Cal. 298; Anwara Begum Vs. Md. Karimul Haque and others, 5 BLC (AD) 119; Ma Shwe Mya Vs. Maung Mo Hnaung, 63 I.C. 914; Mojibur Rahamn Vs. Bangladesh, represented by the Secretary, Ministry of Works 47 DLR 232; Yousuf (Md) Vs. M A Wahab 6 BLC (AD) 99; Uttar Pradesh Co-operative Federation Ltd. Vs. Sunder Bros., Delhi, AIR 1967 (SC) 249 ref.

For the Appellant: (in both appeals) : Mr. Rafique-ul-Huq with Mr. Mahmudul Islam, Senior

Advocates (Mr. Ahsanul Karim, Advocate with him) instructed by Mr. Mahbubur Rahman, Advocate-on-Record

For Respondent (in both appeals) : Mr. Abdul Wadud Bhuiyan,

Senior Advocate, instructed by Mrs. Sufia Khatun Advocate-on-Record

J U D G M E N T

Muhammad Imman Ali, J. Civil Appeal Nos. 148 and 149 of 2007, both

by leave of this Division, are directed against the judgment and decree dated 7.7.2004 passed in First Appeal Nos. 48 and 49 of 2002 respectively by a Division Bench of the High Court Division reversing the judgment and decree dated 07.08.2001 in Title Suit No. 3 of 1998 and reversing the judgment and decree in Title Suit No. 4 of 1998 passed by the Subordinate Judge (now Joint District Judge), Additional Court, Dhaka.

2. Both the appeals arise out of litigation between the same parties concerning land situated at Plot No. 6, Block No. NW(A), Road No. 69, Gulshan Model Town, Dhaka. Title Suit No. 3 was filed by the owner of the property seeking a declaration that the cancellation of the agreement of sale is valid and binding, whereas Title Suit No. 4 was filed by the Purchaser for specific performance of the said agreement. The two title suits were heard analogously and disposed of by a single judgment; the two First Appeals arising therefrom

I LNJ AD (2012) Mahua Khair Vs. Amena Begum Ali Ispahani (Muhammad Imman Ali, J.)

69

were heard together and disposed of by the single judgment impugned herein. Hence, both the appeals were heard by this Division simultaneously and are disposed of by this judgment.

3. The facts leading to the litigation may be stated briefly as follows:

The plot of land in dispute measures one bigha ten kathas, and five chataks and has structures standing thereon. Amenah Begum Ali Ispahani owned and possessed the same by way of a registered deed of lease dated 18.06.1966 executed between herself as lessee and the Dhaka Improvement Trust (now RAJUK), as the lessor. The lessee constructed a single storied building upon the said plot. On 18.12.1986 Amenah Ispahani (hereinafter referred to as the “Vendor”) entered into an agreement for sale of the property (hereinafter referred to as the “agreement for sale”) to Mahua Khair (hereinafter referred to as the “Purchaser”) for an agreed consideration of Tk. 42,50,000/- (Taka forty-two lacs fifty thousand). The initial down payment of Tk. 20,00,000/- (Taka twenty lacs) was paid at the time of execution of the deed of agreement for sale.

4. The relevant clauses of the Agreement for Sale of the Immovable property dated 20.12.1986 may be reproduced below:

“1. The Vendor-First Party hereby agrees to complete the sale of schedule property by a duly executed and registered Deed of Sale within one year of the date hereof and the Purchaser-Second Party hereby agrees and undertakes to pay to the Vendor-First Party the said price of Tk. 42,50,000.00 (Taka forty two lacs fifty thousand) only within the said one year. The Purchaser-Second Party has paid the Vendor-First Party a sum of Tk. 20,00,000.00 (Taka twenty lacs) only by a cheque dated 18.12.1986 drawn on Arab Bangladesh Bank Ltd. as initial down payment.

2. That within the stipulated period of one year the Purchaser-Second Party on behalf of the Vendor-First Party shall move the appropriate Income Tax Authority and obtain an Income Tax Clearance Certificate

as required by section 184 of the Income Tax Ordinance of 1984. It is clearly understood by the parties hereto that the payment of 4 Capital Gains Tax and all incidental expenses shall be entirely the responsibility of the Purchaser-Second Party and the Vendor-First Party shall make no payment whatsoever on this account. It is specifically mentioned herein that the Gains Tax paid by the Purchaser-Second Party shall not be deducted from the consideration money.

3. That the Purchaser undertakes to pay the stamp duty for the Sale Deed under Article 23 of Schedule 1 of the Stamp Act, 1899 as amended up to date and that the payment of stamp duty being entirely the responsibility of the Purchaser-Second Party and the Vendor-First Party shall make no payment whatsoever on these two accounts.

4. It is further understood by the parties hereto that the registration fees and transfer fee payable to DIT shall be paid by the Purchaser-Second Party and the Vendor-First Party shall make no payment whatsoever on these two accounts.

5. That even if after receipt of Income Tax Clearance Certificate and the payment of all these, the Purchaser-Second Party fails to pay the purchase price as stipulated herein above to the Vendor-First Party and this agreement cannot be supplemented (sic) by the Vendor-First Party due to the Purchaser-Second Party’s default, the Purchaser-Second Party shall be liable to pay liquidated damages to the Vendor-First Party of a lump sum amount of Tk. 5,00,000.00 (Taka five lacs) only.

6. That the Sale Deed shall be prepared by the Purchaser and shall be stamped for execution only after it is approved by the Vendor”.

5. The Vendor, being an Iranian national, obtained permission from Bangladesh Bank on 09.02.86 to sell the property. According to the Vendor, the Purchaser was in possession of the


property since 1985 and the deed of agreement for sale was executed on 20.12.1986. According to the Purchaser, the possession of the property was handed over after the execution of the said deed of agreement. The Purchaser was unable to obtain the Income Tax Clearance Certificate within the one year stipulated in the deed of agreement for sale but did make a further payment of Tk. 15,00,000/- (Taka fifteen lacs). Since the Purchaser could not obtain the Income Tax Clearance Certificate and did not get the deed of sale executed and registered, the Vendor sent a legal notice dated 08.07.1993 acknowledging part payment of Tk.35,00,000/- towards the purchase price. The Purchaser was requested to pay the due balance of Tk.7.5 lacs, Tk.5,00,000/- in respect of liquidated damages stipulated in Clause 5 of the agreement for sale and Tk. 13,69,660/- by way of interest accumulated between 01.01.1987 to 31.06.1993. It was stated that failure to pay the said sum of money within one month would be deemed to be confirmation that the Purchaser wished to cancel the said agreement.

6. In response the Purchaser wrote a letter on 31.10.1993 stating that she was willing to pay the outstanding balance of the purchase price on receipt of certain papers relating to the property, viz. (a) copy of the lease agreement with DIT, (b) letter of permission from Bangladesh Bank for sale of the property and (c) approved copy of plan from DIT. On 15.02.1994 the Vendor received from the Purchaser another sum of Tk. 15,00,000. On 29.07.1996 the Vendor sent another legal notice to the Purchaser terminating the agreement for sale and requesting the Purchaser to handover possession of the property within three days.

7. Thereafter, the Vendor filed Title Suit No. 136 of 1996 in the Court of 4th Subordinate Judge (now Joint District Judge), Dhaka on 6.8.1996 which was renumbered as Title Suit No. 28 of 1997 and again renumbered as Title Suit No. 3 of 1998. The suit was filed for declaration that the cancellation of the agreement for sale by the Vendor was proper, valid and binding upon the parties; a decree for khas possession of the suit

property; a decree for Tk. 44,10,000/- on account of rent at the rate of Tk. 35,000/- per month 7 from June 1985 to July 1996 and declaration that the plaintiff is entitled to receive rent at the rate of Tk. 50,000/- per month from August, 1996 till the defendant vacates the suit property.

8. On the other hand, the Purchaser filed Title Suit No. 173 of 1996 on 17.09.1996 which was numbered as Title Suit No. 29 of 1997 in the Court of 1st Subordinate Judge (now Joint District Judge) and Artha Rin Adalat, Dhaka, which was later renumbered as Title Suit No. 4 of 1998. In her suit, the Purchaser as plaintiff prayed for specific performance of contract embodied in the Agreement for Sale.

9. The learned Subordinate Judge (now Joint District Judge), Additional Court, Dhaka heard both the suits analogously and by his judgment dated 7.8.2001 dismissed Title Suit No. 3 of 1998 of the Vendor and decreed Title Suit No. 4 of 1998 of the Purchaser allowing specific performance of contract on condition of payment by the Purchaser a total of Tk. 28,25,000/- to the defendant within 60 (sixty) days and to obtain execution and registration of the deed of sale failing which the kabala would be executed and registered through Court. If the plaintiff failed to pay the said sum of money to the defendant within the stipulated time, then Title Suit No. 4 of 1998 would be deemed to have been dismissed, in which event the plaintiff would be entitled to get back Tk. 35,00,000/- which he had paid to the defendant towards the purchase price.

10. The Vendor then preferred First Appeal No. 48 of 2002 against the judgment in Title Suit No. 3 of 1998 8 and also First Appeal No. 49 of 2002 against the judgment and decree in Title Suit No. 4 of 1998. Both the First Appeals were heard analogously by a Division Bench of the High Court Division which by the impugned judgment and decree dated 07.07.2004 reversed the decision of the trial Court, allowing both appeals holding that the termination notice dated 29.07.1996 of the plaintiff, which was the subject matter of Title Suit No. 3 of 1998, was proper, valid and binding upon the parties and that the suit be decreed for khas possession of the suit property in favour of the


71

plaintiff (Vendor). The judgment and decree passed in Title Suit No. 4 of 1998 was set aside and the plaintiff in that suit (Purchaser-respondent in the appeal) was directed to hand over vacant possession of the suit property to the appellant within three months, failing which the appellant would be entitled to recover possession through Court.

11. Being aggrieved by and dissatisfied with the judgment and decree of the High Court Division, the Purchaser filed Civil Petition for Leave to Appeal Nos. 241 and 242 of 2005 against the judgment of the High Court Division in First Appeal Nos. 48 and 49 of 2002 respectively. By an order dated 29.07.2007, this Division, having heard both the leave petitions, granted leave to consider (i) whether the High Court Division acted illegally in not considering the fact that the petitioner had paid full consideration money for the disputed property before the contract was terminated on 29.07.1996 and also paid an amount of Tk. 28,25,000.00 (Taka twenty eight lacs twenty five thousand) as per direction of the trial Court; (ii) whether in a suit for specific performance of contract, time is not of the essence especially when liquidated damages are payable for any delay on the part of the Purchaser and (iii) whether the possession of the property having been delivered to the Purchaser upon execution of the agreement for sale, and the Purchaser having paid full consideration value of the property before the contract was terminated, and having invested huge amount of money for erecting building thereon, the Purchaser is protected under section 53A of the Transfer of Property Act, and as such the judgment and decree of the High Court Division is liable to be set aside.

12. The appellant in both appeals was represented before us by Mr. Rafique-ul-Huq, learned Senior Advocate with Mr. Mahmudul Islam, learned Senior Advocate and Mr. Ahsanul Karim, learned Advocate. The respondent in both appeals were represented by Mr. Abdul Wadud Bhuiyan, learned Senior Advocate.

13. Mr. Mahmudul Islam, the learned Counsel for the appellant submits that in a contract for sale of immovable property time is not of the essence,

especially when liquidated damages are stipulated as a term of the contract for any breach in concluding the contract within the time stipulated therein. He further submits that since the appellant (Purchaser) 10 had paid all the consideration money as well as liquidated damages stipulated in the agreement and has been in possession of the disputed property, the Vendor most illegally terminated the agreement. He also submits that there being no clause in the agreement allowing termination of the same, and liquidated damages having been paid as stipulated, the subsequent unilateral ultimatum in the legal notice dated 09.07.93 does not give any right to the Vendor to terminate the agreement for sale. He next submits that under section 35(c) of the Specific Relief Act, the seller could have sued to rescind the contract only if the Purchaser defaulted in payment of the agreed purchase money. He points out that in the instant case the Purchaser paid Tk. 20,00,000/- at the time of execution of the deed of agreement for sale, Tk. 15,00,000/- on 15.02.1994 and the balance amount of Tk. 7,50,000/-, as well as the liquidated damages of Tk. 5,00,000/- before the contract was terminated. He points out that the Purchaser paid into Court the full amount as ordered by the Court, including compensation in accordance with the decree of the trial Court. The learned Counsel further points out that the deposition on behalf of the Vendor is that 91

2 years were extended for

completion of the deed of sale, which is consistent with the claim of the Vendor in her plaint and as such the Purchaser was not in default even up to the time of cancellation of the agreement.

14. Mr. Abdul Wadud Bhuiyan, the learned Counsel for the respondent submits that the suit for specific performance of contract was barred by limitation, since Article 113 of the Limitation Act provides that a suit for specific performance of contract had to be filed within three years from the date fixed for performance or from notice of refusal. He points out that in the instant case, the date for performance of the contract was within one year from its execution, i.e. within one year from 20.12.86. He submits that, therefore, the suit having not been filed within three years from 20.12.87, it is barred by limitation. Alternatively, learned


Counsel submits that if the date of completion of the contract is taken to be one month from the legal notice dated 08.07.93, then the suit for specific performance of contract ought to have been filed within three years from 8.8.93 and, therefore, the suit, which was filed on 17.09.96, is barred by limitation. The learned Counsel submits that the balance of the consideration money was never paid by the Purchaser, and any suggestion that the payment was made to the learned Advocate Salah Uddin within the stipulated period is not supported by the evidence and is also contrary to the terms of the contract, which clearly stipulated that the balance purchase price was to be paid to the seller. The learned Counsel points out that the Purchaser has nowhere specified when he made any payment to Advocate Salah Uddin and the letter from the latter to the Purchaser allegedly returning Tk. 13,00,000/- is evidence of the Purchaser’s collusion with Advocate Salah Uddin. He submits that if any amount was paid to Advocate Salah Uddin, then it must have been paid after the termination notice and certainly not within one month of the legal notice dated 08.07.1993. He points out that the letter of the Purchaser dated 31.10.1993 does not mention any amount of money having been paid to Advocate Salah Uddin.

15. The learned Counsel for the Vendor submits that even if it is assumed that time was not of the essence of the contract, the Purchaser was bound to perform her part of the agreement within a reasonable time. In support of his contention, he has referred to the decision reported in 5 BLD (AD) 51. He also referred to an unreported decision of this Division in Civil Petition for Leave to Appeal No. 360 of 2000 (judgment delivered on 18.04.2001) and the case of Manjunath Anandappa Urf Shivappa Hanasi vs. Tammanasa and others reported in 10 SCC 390. The learned Counsel points out that the Purchaser had ample time and opportunity within which to perform her part of the contract, and having failed to do so, he cannot be entitled to a decree of specific performance of contract.

16. At the outset, we note that the agreement for sale is quite unusual, inasmuch as there is no termination clause. Generally, agreements for sale of property include a clause whereby in case of

nonperformance, or after the passage of a specified period of time, the contract would either be deemed to have been terminated or would be determined at the behest of a party to the agreement. In the instant case, Clause 1 of the agreement dated 18.12.1986 provides that the sale of the schedule property would be completed within one year upon receipt of the full purchase price as agreed between the parties, Tk. 20,00,000/- of which was paid by cheque dated 18.12.86. Clause 2 of the contract provides a reciprocal promise to the effect that the Purchaser on behalf of the Vendor shall obtain the necessary Income Tax Clearance Certificate from the Income Tax Authority as required by section 184 of the Income Tax Ordinance, 1984. Although under the relevant law it is the duty of the seller to obtain the said certificate and to pay capital gains tax, the parties to the contract have agreed to deviate from the requirement of the law. Since the State does not lose out as a result of this deviation, such an agreement cannot be said to be illegal. The interest of the State is to receive a portion of the gain made as a result of the sale of the property, and also to receive the due stamp duty and other due taxes on account of the transfer and registration. If the deal is at arms length, and is not otherwise illegal, then shifting the burden of the tax and other duties by mutual agreement cannot be said to be illegal or unlawful. In the instant case, the only sanction provided by the agreement in case of any delay by the Purchaser to conclude the contract is found in Clause 5 wherein it is stipulated that even if after receipt of the Income Tax Clearance Certificate and the payment of the due taxes and fees, the Purchaser fails to pay the purchase price to the seller and the contract cannot be completed by the seller due to the fault of the Purchaser, then the Purchaser shall be liable to pay liquidated damages to the seller, a sum of Tk. 5,00,000/-. Essentially, what that means is that if all the other conditions are fulfilled but due to the fault of the Purchaser in paying the seller the full purchase price, liquidated damages would become payable.

17. The reciprocal promise of obtaining the Income Tax Clearance Certificate by the Purchaser was not fulfilled within the one year period stipulated for completion of the sale of the property. In his deposition the witness for the Purchaser alleged that in order to obtain the Income Tax Clearance Certificate, it was necessary for the seller to sign a Form but several attempts by the


73

Purchaser to get the Form signed by the seller were fruitless. D.W.1 (deposing on behalf of the Purchaser) stated that he approached the seller as well as her engaged lawyer in this regard. On the other hand, the witness deposing on behalf of the seller denied that any approach was made to the seller with regard to the Income Tax Form. Neither party produced any corroborative evidence to support their statements. In any event the need to obtain the Income Tax Clearance Certificate was abolished by law as from 30.06.1992, when section 184 of the Income Tax Ordinance, 1984 was abolished by section 8(21) of the Finance Act, 1992 (Act No. 21 of 1992). However, even at this point the Purchaser did not take any step towards completion of the contract even when the need to obtain the said certificate no longer existed. Hence, in our view the liquidated damage is payable by the Purchaser.

18. One other aspect that we find noteworthy in this case is that neither party appeared to be diligent or overly eager in completing the sale of the suit property. The stipulated period of one year within which to conclude the sale ended on 19th December, 1987. From the record we do not find evidence of any action taken by either party immediately or soon thereafter. We do not find any tangible evidence that the Purchaser contacted the Vendor, for example by way of written request, to provide necessary cooperation of the Vendor in order to obtain the Income Tax Clearance Certificate. On the other hand, we also do not find any evidence on the part of the Vendor to show that after the stipulated one year period she made any approach in writing to encourage the Purchaser to conclude the sale. The law with regard to getting the necessary Income Tax Clearance Certificate was amended on 30.06.1992 by section 8(21) of the Finance Act, 1992 (Act No. 21 of 1992). From then on it was necessary only to pay 6% of the sale price at the time of registration. Quite clearly the Purchaser, had she been diligent and willing to conclude the sale, could have prepared the deed of sale and approached the Vendor for execution and registration of the same. However, the evidence shows that no steps were taken at any time by the Purchaser even to procure the necessary stamp paper for the sale deed.

19. The Vendor also took no steps to rescind the contract or to approach the Purchaser to conclude the sale of the property. One year after the repeal of the law requiring Income Tax Clearance Certificate, on 8.7.93 a legal notice was sent to the Purchaser by the Advocate of the Vendor stipulating a period of one month within which to conclude the sale and also demanding payment of liquidated damages of Tk. 5,00,000/- along with the balance purchase price and interest thereon. By this action, therefore, the Vendor had waived any right to seek rescission of the contract for failure of the Purchaser to conclude the sale within the one year stipulated in the agreement.

20. The ultimatum given by the seller to conclude the sale within one month was evidently not heeded by the Purchaser. It appears that the Purchaser wrote a letter to the Vendor’s lawyer after the deadline on 31.10.93 expressing her willingness to pay the balance outstanding and to conclude the sale on condition of receipt of certain papers detailed in that letter. These papers, in our view, have no bearing with regard to the sale of the property. They are not essential papers in connection with the execution and registration of the sale deed. However, the Vendor did not take issue save to say that the planning permission for the building was lost even before the execution of the agreement for sale, which was known to the Purchaser and the other two papers requested, namely the permission from the Bangladesh Bank and document relating to the lease of the property, had been given to the Purchaser at the time of execution of the agreement for sale. Nevertheless, even at this stage, in October 1993, the Vendor took no steps to rescind the agreement for sale. On the contrary, the depositions of the witnesses indicate that the Purchaser paid Tk. 15,00,000/- on 15.02.1994, which the Vendor received and accepted. We should point out that there is some incongruity in the claim that Tk. 15,00,000/- was paid on 15.02.1994 since the first legal notice dated 8th July, 1993, sent by the Advocate of the Vendor stated that Tk. 35,00,000/- towards the purchase price had already been received. An explanation for this anomaly may be that the cheque for Tk. 15,00,000/- had been received by the Vendor prior to 8th July, 1993 but was not encashed until


15.02.1994 due to insufficiency of fund in the Purchaser’s account. This finds support from the deposition on behalf of the Vendor.

21. Be that as it may, the seller in accepting the Tk. 15,00,000/- had effectively extended the period for performance of contract. Even the subsequent legal notice dated 29th July, 1996 discloses a gap of more than two years in which the Vendor took no action to rescind the agreement for sale.

22. In view of the above sequence of events, the argument put forward by the learned Counsel for the respondent (Vendor) that the suit for specific performance was barred by limitation cannot be sustained. The preponderant view, as may be seen from the decisions referred to us, is that in the case of sale of immovable property time is not of the essence unless specifically stipulated by the parties. In the instant case, although a period of one year for completion of the sale was stipulated, sanction for non-compliance with this term of the agreement was payment of liquidated damages of Tk. 5,00,000/-. Nowhere in the agreement is it mention-ned that the agreement would either stand cancelled or be liable to be cancelled in the event of any breach of the terms of the agreement. This is an unusual aspect of this particular agreement, but it is one to which the parties have consciously agreed.

23. The learned Counsel for the respondent has argued that the agreement was required to be concluded within a reasonable time after the one year stipulated in the agreement. In the instant case, it appears that the contract could not be concluded even within a period of nine years and nine months. It is for this reason and by reference to Article 113 of the Limitation Act that the learned Counsel for the respondent submits that the suit for specific performance was barred by limitation. However, from the sequence of events narrated above, it appears that at every stage when the law of limitation could have been invoked, the Vendor by her action and conduct waived her right to rescind the agreement. The time limit placed on the Purchaser to conclude the sale within one year was waived by the Vendor’s inaction since 20.12.1987 and the legal notice dated 08.07.1993 lost its effect when she accepted the Tk. 15,00,000/- on 15.02.1994. She has acquiesced to and waived the

failure of the Purchaser to perform her part of the contract. By giving one month’s time to perform, the Vendor effectively extended the time allowed for performance and allowed the period of limi-tation to be revived. Subsequently, by accepting Tk. 15,00,000/- paid by the Purchaser on 15.02.1994, the Vendor waived the one month ultimatum given in her legal notice and the period of limitation recommenced.

24. The acceptance of a further instalment of the purchase money takes away the possibility on the part of the Vendor to rescind the contract. Moreover, the legal notice dated 29.07.96 cancell-ing the agreement itself indicates that the earlier time period stipulated had been extended by implic-ation, and any rights accruing had been waived, otherwise, the last legal notice would not have been necessary. Hence, there was no question of the suit being barred by limitation. Moreover, it appears from the cross-examination of P.W.1 (deposing on behalf of the Vendor) that time was extended by the Vendor. The witness is recorded to have said, “I agree that 91

2 years were extended for completion of the deed of sale”. In this connection the plaint of the Vendor in Title Suit No. 28 of 1997, which later became Title Suit No. 3 of 1998, states in paragraph No. 14, “but she failed to carry out her part of the obligations under the agreement for last 91

2 years” and in paragraph No. 15, “she had also failed to fulfil her obligation within the extended period of nine and 12 years (91

2 years)”. The learned Counsel for the appellant emphatically submitted that the period for completion of the sale was admittedly extended by the Vendor for 91

2 years. From the plaint it cannot be said that the seller admitted to have extended the period by 91

2 years. The language used simply means that the Purchaser was unable to conclude the sale in spite of the fact that years had elapsed. On the other hand, we cannot overlook the apparent admission of the Vendor’s witness in cross-examination that years were extended for completion. However, the fact that this was apparently stated in cross-examination should also be borne in mind. Nevertheless, as we have explained earlier, in our view the period of limitation was never crossed as the action of the


75

Vendor from time to time effectively gave a new lease of life to the agreement.

25. Turning to the action of the Purchaser, we find that she also was not diligent in performing her part of the contract and apparently took full advantage of 21 the generosity of the Vendor in not having a termination clause in the agreement, nor pursuing the breach by the Purchaser to conclude the contract within the stipulated time and allowing the Vendor extraordinary latitude in performing her part of the agreement.

26. Performance of reciprocal promise:

27. The aspect of performance of reciprocal promise may be found in sections 51 to 54 of the Contract Act, 1872. It is provided in section 52 that the reciprocal promises shall be performed in the order as stipulated in the agreement. In other words, in the context of the instant case, the Purchaser was to obtain the Income Tax Clearance Certificate before the deed of sale could be prepared, and in order to obtain the Income Tax Clearance Certificate the Vendor had to perform her part by signing the necessary Form to be submitted to the Income Tax authority. Section 53 of the Contract Act provides as follows:

“Liability of party preventing event on which the contract is to take effect – When a contract contains reciprocal promises, and one party to the contract prevents the other from performing his promise, the contract becomes voidable at the option of the party so prevented; and he is entitled to compensation from the other party for any loss which he may sustain in consequence of the nonperformance of the contract”.

28. Thus, if it is claimed by the Purchaser that she was prevented from obtaining the Income Tax Clearance Certificate due to the failure of the Vendor to sign the necessary Form, then she could have taken steps to avoid the contract and to claim compensation. But she did not do so. On the other hand, the need to obtain Income Tax Clearance Certificate became redundant from 1st July, 1992 and yet the Vendor did not take any step to conclude the sale of the property in question.

29. Time of the Essence of Contract:

30. It is fortuitous for the Purchaser that the Vendor chose to send a legal notice to the Purchaser giving her one month within which to conclude the sale. It was argued that this ultimatum makes time of the essence of the contract. In this connection the provisions of the latter part of section 55 of the Contract Act may be referred:

“Effect of failure to perform at fixed time, in contract in which time is essential–When a party to contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.

Effect of such failure when time is not essential–If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure. Effect of acceptance of performance at time other than that agreed upon–If, in case of a contract voidable on account of the promisor’s failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compe-nsation for any loss occasion-ned by the non-performance of the promise at the time agreed, unless, at the time of such acceptance he gives notice to the promisor of his intention to do so”.

31. It is conceptually established that in an agreement for sale of immoveable property time is not of the essence of the contract, unless it can be held to be the unmistakable intention of the parties to make time of the essence of the contract. In the case of Hajee Saru Meah Sowdagar and another Vs.


Musammat Al-Haj Jahanara Begum and others, 8 DLR 616, relying upon the decision of the Privy Council in Jamshed Khodaram Irani Vs. Burjorji Dhunjibhai, 43 I.A. 26 that in a contract for sale of immoveable property the presumption for the purpose of specific performance is that time was not of the essence of the contract. It was held in the Hajee Saru Meah case that, “it is clear that the mere fixation of a period in the contract even when coupled with a power to treat the contract as cancelled, in the event of default in performance of the contract within the stipulated time, is not sufficient to make the time fixed of the essence of the contract”. In that case the contract itself stipulated that in the event of non-performance for any fault or default on the part of the lessee in completing the contract within time stipulated therein, the agreement shall stand cancelled. In spite of such stipulation their Lordships observed that “the tendency of the Courts in cases of such contracts relating to real property is to lean against a construction which would make time of the essence of the contract unless it can be held to be the unmistakable intention of the parties”. Reference was made to the decision in the case of Kali Das Ghosh Vs. Mungiram Bangur and Company, AIR (1955) Cal.298 that, “Even the mentioning of the fact that time should be deemed to be of the essence of the contract is not conclusive if it can be inferred from the subsequent conduct of the parties that that was not the real intention of the party”.

32. In the facts of the instant case it is clear that, although it was stipulated in the agreement that the contract for sale should be completed within a period of one year, the breach of such condition was sanctioned by the payment of the liquidated damages in the sum of Tk. 5,00,000/-. Therefore, time was definitely not of the essence of the contract. It must also be noted that the one month’s ultimatum is an unilateral stipulation and it cannot be said that the Purchaser agreed to it. Even if the period of one month from 8.7.93 is taken to be the basis for performance of the agreement, then failure on the part of the Purchaser to conclude the sale in that period makes the agreement voidable. Even if at that stage time became of the essence of the contract, it is apparent that the Vendor did not take

any action on or after 8.8.93 to cancel the agreement. On the contrary, her acceptance of Tk. 15,00,000/- of the consideration money on 15.02.94 has negated the aspect of time being of the essence of the contract and effectively extended the period of limitation. Moreover, according to section 55 of the Contract Act, if it was the intention of the parties that the time should not be of the essence then the contract does not become voidable, but the promisee becomes entitled to receive compens-ation. Hence, it is our view that the Vendor is only entitled to receive compensation for the delay in performance of the agreement by the Purchaser.

33. Reasonable time within which to conclude contract:

34. In cases where time is not of the essence of the contract the parties have a general right that the contract will be performed within a reasonable time. What is a reasonable time is not defined anywhere. However, it was observed in the Hajee Saru Meah’s case that if there was unnecessary delay by any party, the other party could give him notice fixing a reasonable time after the expiration of which he would treat the contract as at an end. In the instant case, the vendor in the legal notice dated 8.7.93 stated inter alia as follows:

“If you are unable or fail to pay the balance purchase price along with the interest lost by my client, my client would have no other alternative but to regard the sale agreement as cancelled and sell the property to another buyer.

I am, therefore, instructed to call upon you to pay the balance purchase price of Taka 7.5 lacs along with accumulated interest of Taka 13,69,660/- at the rate of 16% per annum over the last seven (sic) years from 01.01.87 to 31.06.93 (sic.) and a further sum of Taka 5 lacs as liquidated damages as stipulated in clause 6 (sic) of the sale agreement within one month of receipt of this letter. Your failure to do so will be deemed to be confirmation that you also wish to cancel the sale agreement and hand back possession of the property to my client”.


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35. However, from the record it transpires that, in spite of the one month ultimatum, the Purchaser paid a further sum of Tk. 15,00,000/- towards the purchase price which the Vendor accepted on 15.02.94. Hence, the threat to treat the agreement as cancelled was waived. The Vendor by his second legal notice dated 29.07.96 terminated the agreement for sale. The witness deposing on behalf of the Purchaser stated that the amount of liquidated damages along with the outstanding balance of the purchase price was deposited with the vendor’s representative, Advocate Salah Uddin Ahmed, who ultimately returned the amount of Tk. 13,00,000/- which had been deposited with him, vide his letter dated 11.08.1996. The claim of the Purchaser is that she paid the full purchase price of the property as well as liquidated damages stipulated in the agreement before the vendor terminated the agreement. From the evidence on record, we do not find any reference to a date when the outstanding balance of the purchase price and the liquidated damages was actually paid over to Advocate Salah Uddin. On the other hand, there is a letter Ext.’E’ in Title Suit No. 3 of 1998 from Advocate Salah Uddin Ahmed dated 11.08.96 addressed to Mr. Abul Khair (husband of the Purchaser), which indicates that he had received Tk. 13,00,000/- from the Purchaser and was returning the same. This letter is of course dated 13 days after the agreement was terminated by the seller as mentioned in the second legal notice dated 29.07.96. Thus whether the amount was actually paid before the termination of the agreement can only be surmised in the absence of testimony by Advocate Salah Uddin Ahmed.

36. Be that as it may, the payment of balance purchase price is indicative of the Purchaser’s continued willingness to perform his part of the agreement. Specific Performance:

37. Specific performance of contract is regulated by Chapter II of the Specific Relief Act, 1877. It is a discretionary relief as provided by Section 12 of the said Act. The relevant portion of Section 12 may be quoted as follows:

“(a)......................................

(b) When there exists no standard for ascertaining the actual damage caused by

non-performance of the act agreed to be done;

(c)When the act agreed to be done is such that pecuniary compensation for its nonperformance would not afford adequate relief; or

(d) When it is probable that pecuniary compensation cannot be got for the nonperformance of the act agreed to be done. Explanation- Unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immoveable property cannot be adequately relieved by compensation in money, and that the breach of contract to transfer moveable property can be thus relieved”.

38. It may be borne in mind at this stage that out of the total agreed purchase price of Tk. 42,50,000/- the Purchaser paid 35,00,000/- upto 15.02.1994, which according to the deposition of the Vendor’s witness, was invested for, “Industrial purpose of Free School Street Property. I don’t know what’s the rate of profit. If I would have kept this amount what amount I would get cannot say. The property which was purchased in the year 1995 is more higher value now-a-days”. Thus we glean from the evidence of P.W.1, husband of the Vendor that with the advance purchase money paid by the Purchaser the Vendor invested in an industrial property in a Free School Street Property in the year 1995. The current value of the property is not disclosed by the evidence on record. Hence, the damage caused or gain made by the non-performance of the contract cannot be ascertained, either from the point of view of the Vendor who has invested the advance received as a result of the agreement for sale, or from the point of view of the Purchaser who was unable to invest the said money advanced in any other property. It would also be difficult to ascertain the amount of compensation which would be adequate to compensate the loss incurred by the Purchaser if the performance of the agreement is not enforced.

39. The explanation to Section 12 of the said Act speaks of a rebuttable presumption that the breach of a contract to transfer immoveable property


cannot be adequately relieved by compensation in money. The Saru Meah Sowdagar’s case cited above, is authority for saying that the onus of rebutting the presumption lies on the person who seeks to avoid the agreement. In the instant case the Vendor who seeks to avoid the agreement has not led any evidence to prove that the breach of the contract can be adequately compensated monetarily.

40. The learned Counsel appearing for the Vendor submits that the property prices have increased phenomenally since the time of the agreement till the present day and, as such, enforcing the agreement by way of specific performance would cause untold hardship to the Vendor.

41. In this regard the learned Counsel for the Purchaser has referred to the decision in the case of Anwara Begum Vs. Md. Karimul Haque and others reported in 5 BLC (AD) 119, wherein it has been held that hardship of the defendant is not a ground to refuse relief by way of specific performance. The learned Counsel further submits that it is only hardship which existed at the time of the agreement which could be material and subsequent hardship cannot be taken into consideration to deny specific performance of contract. By reference to section 22 of the Specific Relief Act, the learned Counsel for the Purchaser submits that although a decree for specific performance of contract is a discretion of the Court, the discretion must be judicious and, unless the conditions mentioned in section 22.I and II are present in any given case, a decree of specific performance may not be refused by the Court. The learned Counsel points out that in the facts of the instant case, there is no question of the plaintiff having any unfair advantage; nor the performance would cause hardship on the defendant which she did not foresee; on the other hand, the learned Counsel submits, the plaintiff in this case has done substantial act by paying the whole of the purchase price as well as liquidated damages stipulated in the contract and, therefore, the trial Court properly exercised its discretion to decree specific perform-ance of contract.

42. Long delay in performance of contract:

43. In the case of Ma Shwe Mya Vs. Maung Mo Hnaung, 63 I.C. 914 the facts show that nine years

had elapsed between the date of the contract and the filing of the suit for specific performance. Their Lordships of the Privy Council observed as follows:

“It certainly is rather startling to be told that nine years after a contract has been made, which could have been satisfied within twelve months of its execution, a party to the contract is at liberty to take proceedings for specific performance of contract. The rights of equity which prevail in British Burma are rights which are given to people who are vigilant and not to those who sleep, and, unless there can be clearly established some reason which threw upon the defendant the entire blame for the delay that had occurred or unless indeed it can be shown that the real right of action had only accrued a short time before the proceedings were instituted, such a lapse of time would be fatal to any action for specific performance of contract”.

44. In the facts of the instant case, it appears that nine and half years had elapsed from the time of contract till the filing of the suit. However, the evidence on record tends to show, firstly, that the time was allowed to elapse with the express or tacit consent of the defendant (Vendor). Moreover, as we have noted earlier, the defendant by her conduct waived performance of the agreement within the time stipulated therein and also within the time stipulated in her first legal notice by accepting a further instalment of the purchase price. Secondly, the defendant allowed two years to elapse in between February 1994, when Tk. 15,00,000/- had been paid and received, and 29.07.96 when the second legal notice was sent.

45. In the case of Mojibur Rahamn Vs. Bangladesh, represented by the Secretary, Ministry of Works reported in 47 DLR 232 it was held that “The cause of action for a suit for specific performance of contract arises when the person who executes the deed of agreement for sale refuses to act in accordance with the terms of the said agreement”. Therefore, the cause of action of the instant case arose upon cancellation by the seller of the agreement for sale on 29.07.96.


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46. Defence of Hardship:

47. On the question of hardship, this Division held in the case of Yousuf (Md) Vs. M A Wahab reported in 6 BLC (AD) 99 as follows:

“Defence of hardship cannot be accepted to defeat a suit for specific performance of contract in all cases. When hardship is on both the plaintiff and the defendant, it is for the Court to adjudicate the matter in exercise of its discretion. In the instant case, there is no case made out by the defendant that in the event of decreeing the suit he would be thrown on the street or have no other place to reside”.

48. In the facts of the case before us, the hardship expressed by the Vendor is that the price of the property in dispute has increased astronomically. The property now being worth crores of taka would, in accordance with the terms of the agreement of sale, be sold for the paltry sum of Tk. 42,50,000/-. However, it must be borne in mind that the price agreed between the parties must have been reasonable when it was mutually agreed at arms length. On the other hand, there is hardship on the part of the Purchaser who had paid Tk. 35,00,000/- of the purchase price, which was a large sum of money when it was paid, and that sum of money will now not be worth as much as it was worth in 1986, when Tk. 20 lacs was paid, and in February 1994, when another sum of Tk. 15 lacs was paid. In this regard we also have to take into account the fact that admittedly the Vendor invested the money in a valuable industrial property in the heart of Dhaka City which will also have increased in value astronomically. That it has in fact increased in value is admitted by the Vendor’s witness.

49. Discretion of the Court to grant Specific Performance:

50. The Specific Relief Act provides that it is the discretion of the Court to grant specific performance of any contract. In the case of Uttar Pradesh Cooperative Federation Ltd. Vs. Sunder Bros., Delhi reported in AIR 1967 (SC) 249 it was held that, “the exercise of discretion by the trial Court should not be interfered by the Appellate Court unless the exercise of discretion by the trial Court was not judicial or was unreasonable”. It was held in that case as follows:

“If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court’s exercise of discretion. As is often said, it is ordinarily not open to the appellate Court to substitute its own exercise of discretion for that of the trial judge; but if it appears to the appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts then it would certainly be open to the appellate Court to interfere with the trial Court’s exercise of discretion”.

51. Turning to the instant case, we find from the judgment of the trial Court that the learned Judge noted that there was no clause in the agreement that it would be cancelled for non-performance of any of the terms and that time was not of the essence of the contract and for these reasons the notice dated 29.07.96 cancelling the agreement was illegal. The trial Court further found that the time for performance of the agreement was extended from time to time by the conduct of the parties, including acceptance by the Vendor of Tk. 15,00,000/- on 15.02.94 and finally giving notice of cancellation of the agreement on 29.07.96. The claim of the Vendor that the suit for specific performance of contract was barred by limitation was therefore, not accepted.

52. On the other hand, the High Court Division laid emphasis on the fact that the Purchaser did not perform her part in obtaining Income Tax Cleara-nce Certificate; showed herself as a tenant of the suit property thereby making the seller liable to Income Tax; did not conclude the deal within one month of the legal notice as stipulated therein and the fact that the non-performance of the contract by the Purchaser would result in the liability of the Vendor to pay extra transfer fee chargeable by RAJUK, since the value of the property as assessed by RAJUK would be much higher than that agreed by the parties many years previously.

53. However, we note from the agreement for sale that clearly it contemplates that all transfer fees, taxes, duties etc. shall be borne by the Purchaser. The cumulative effect of Clauses 2,3,4 and 6 is that the Vendor would not be liable for any costs incidental to the sale of the property. It is


agreed by the parties that the registration fees and the transfer fee payable to DIT (RAJUK) shall be paid by the Purchaser-Second Party and “the Vendor-First Party shall make no payment whatsoever on these two accounts”.

54. Finally, there was a claim that the Vendor would be liable to pay tax on account of the Purchaser’s claim to the Tax Authority that she was a tenant on the property paying rent, which would mean that the amount paid by her would be rental income to the Vendor and therefore taxable. However, there is no mention of this in the plaint of the Vendor, although it is mentioned on recall by the witness on behalf of the Vendor that the Income Tax Authority had imposed tax upon the Vendor. Ext. 3 series were produced in support of such claim. His deposition, however, does not show that any amount of tax had actually been paid by the Vendor to the Tax Authority. With regard to the incidence of extra transfer fee which it is apprehe-nded may be imposed by RAJUK, we are of the view that that cannot be a ground for rejecting the suit for specific performance of contract. In any event, according to the terms of the agreement, the Purchaser will be liable for any transfer fee payable to RAJUK.

55. One other point was urged for the first time at the time of moving the petition for leave and leave appears to have been granted to consider the effect of Section 53A of the Transfer of Property Act, 1882. The point was not elaborated before us. Suffice it to say that this provision is one that could be used to ward off dispossession by the other party to the contract. Here, such a situation did not arise. Moreover, the point was not raised earlier and is not appropriate in a case where possession is sought through a proceeding in Court.

56. We also note that the High Court Division has made no mention of the admission of P.W.1 that the money advanced for the purchase of the property in the sum of Tk. 35,00,000/- was invested by the Vendor for industrial purpose in a property in Free School Street. We take judicial note that the industrial investment in Free School Street will have earned a substantial increase in value.

57. In the light of the discussions made above, weare of the view that the judgment and decree passed by the High Court Division is not sustainable. Accordingly, the same is liable to be set aside.

58. The trial Court decreed the suit awarding compensation to be paid by the Purchaser to the tune of Tk. 7,50,000/-, plus interest at the rate of 15% for 14 years, plus Tk. 5,00,000/- of liquidated damages: in total Tk. 28,25,000/-. However, we are of the view that the payment of compensation should reflect the benefit that the recipient would obtain by investing that sum of money had it been paid in due time. Also, as discussed above, there is a general right of performance within a reasonable time. Approximately twenty years have elapsed from 1992 when there was no further impediment in the way of completing the sale.

59. In the facts of the instant case, on the basis that money put into long term investment would, more or less, double in five years, we calculate that the seller is entitled to receive taka two crores by way of compensation.

60. We find merit in both the appeals and the same should be allowed. Accordingly, the Civil Appeal Nos. 148 and 149 of 2007 are allowed. The impugned judgments and the decrees of the High Court Division are set-aside.

61. The judgment and decree passed by the trial Court is restored with modification of the amount of compensation which will now be Tk. two crores. The respondent is directed to execute and register the sale deed in question on receipt of this amount from the appellant within three months from date, failing which, the appellant will be at liberty to get the kabala deed executed and registered through Court on deposit of the said amount in Court. If the Purchaser fails to pay the amount ordered by us within the time allowed by us, then the agreement for sale in question shall stand cancelled and the Vendor will be entitled to regain vacant possession of the suit property within one month thereafter.

Let a copy of this judgment be transmitted to the trial Court, i.e. the Sub-Ordinate Judge (now Joint District Judge), Additional Court, Dhaka.

Ed.

I LNJ (2012) Md. Mahfuzur Rahman and another Vs. Government of Bangladesh and others (Moyeenul Islam Chowdhury, J.)

445

ving the operation of the principles of estoppel and acquiescence. ...(1,2,33,37,39,40,42 and 43).

University of Dhaka nd another Vs. Zakir Ahmed, 16 DLR (SC) 722; Principal, Chittagong Medical College and another Vs. Shahrayar Murshed, 48 DLR (AD) 33; Bangladesh Steamer Agents Association Vs. Bangladesh and others, 33 DLR (AD) 177; Sharwar Kumar and others Vs. Director-General of Health Services and another, AIR 1994 SC 1448; Amirul Islam Vs. The Secretary, Ministry of Land Administration and Land Reforms, Government of Bangladesh and others, 1988 BLD (AD) 25; Uani Krishnan, J.P. and others Vs. State of Andhra Pradesh and others, AIR 1993 SC 2178; Sanatan Gauda Vs. Berhampur University and others, AIR 1990SC 1075; Ashok Chand Singhvi Vs. University of Jodhpur and others, AIR 1989 SC 823; Randir Singh Vs The State of Rajashtan and others, 1992(2) ESC 435 (Raj); R Vs. Electricity Commissioners (1924) 1KB 171; Ridge Vs. Baldwan, 1964 AC 40; In Re Infant H(K)(1967) 1 All E.R. 226; Council of Civil Service Union Vs. Minister for the Civil Service (1984)3 All E.R. 935; Swadeshi Cotton Mills Vs. India, AIR 1981 SC 818; Ziauddin Vs. Pakistan Defence Housing Authority, 1999 PLC 723; Enamul Huq (Md) Vs. Jatiyo Bishwabiddaloy and others, 59 DLR 556 ref. Mr. Md. Ashad Ullah with Ms. Khaleda Sultana Noor, Advocates

…For the petitioners.

Mr. Korunamoy Chakma, DAG with Mr. Nazibur Rahman, AAG

…For the respondent no. 1.

Mr. M. K. Rahman with Mr. A.K.M. Asiful Haque, Advocates

….For the respondent nos. 2-5.

Judgment

Moyeenul Islam Chowdhury, j: A Rule Nisi was issued calling upon the

respondents to show cause as to why the impugned order of the respondent no. 2 communicated under the signature of the respondent no. 5 vide Memo No. ®nL«¢h/ ¢px 35aj(h¡Ù¹x)fËx/08/731(2) dated 19.11.2008 (Annexure-‘I’) cancelling the admission of the petitioners from Sher-e-Bangla Agricultural University, Dhaka should not be declared to be

without lawful authority and of no legal effect and why the respondent nos. 2-5 should not be directed to re-admit the petitioners and allow them to prosecute their studies in their respective Levels and Semesters of B.Sc. Agriculture(Hons.) in the Faculty of Agriculture of the said Agricultural University. 2. Subsequently, a further Rule Nisi was issued calling upon the respondents to show cause as to why the decision of the respondent no. 4 dated 27.12.2008, so far as it relates to the petitioners, should not be declared to be without lawful authority and of no legal effect. 3. It has been stated in the Writ Petition that having prescribed qualifications for admission to B.Sc. Agriculture (Hons.) Level-1, Semester-1, Faculty of Agriculture, Sher-e-Bangla Agricultural University, Dhaka, the petitioners collected Admission Forms being Form Nos. 3910 and 3903 from the office of the university for admission in the academic session-2004, filled up the Admission Forms and submitted the same to the university authority. After scrutiny, everything was found all right and they duly appeared in the Admission Test in the academic session-2004. As per pÀ¡aL ®L¡−pÑl R¡œ-R¡œ£ i¢aÑ AdÉ¡−cn, they were found eligible for admission. The university by its Memo No. 953 dated 21.03.2004 published the result of the Admission Test. Having been qualified in the Admission Test, the petitioners were admitted to their respective courses. After admission they started prosecuting their studies in B.Sc. Agriculture (Hons.), Level-1, Semester-1 in the Faculty of Agriculture in the academic session-2004. Anyway, at one stage, there was a hue and cry about illegal admission of some students including the petitioners to the university in that academic session and a news item was accordingly published in this regard in different newspapers. Ultimately a six-member committee was formed by the university authority to inquire into the allegations of illegal admission of the students to the university in the academic session-2004. On the basis of the inquiry report, an order was served upon the petitioners under the signature of the respondent no. 5 and communicated by Memo No. ®nL«¢h/ ¢px 35aj (h¡Ù¹x)fËx/08/731(2) dated 19.11.2008 cancelling their admission from the university. They were not afforded any opportunity of being heard prior to cancellation of their admission. As a matter of fact, they were condemned unheard. So

Md. Mahfuzur Rahman and another Vs. Government of Bangladesh and others (Moyeenul Islam Chowdhury, J.) I LNJ (2012) 446

the impugned order dated 19.11.2008 is without lawful authority. On receipt of the impugned order dated 19.11.2008, the petitioners examined the resolution of the Syndicate dated 01.11.2008 taken in its 35th Meeting from the office of the respondent No.5 and came to know about the reasons for cancellation of their admission to the university. Thereafter the petitioners made review applications to the authority concerned for review of the impugned order dated 19.11.2008 and to allow them to prosecute their studies in the university. But the Syndicate rejected their review applications in its meeting held on 27.12.2008 affirming the earlier order dated 19.11.2008. The decision of the Syndicate dated 27.12.2008 is of no legal effect. 4. The respondent nos. 2-5 have contested the Rule by filing a joint Affidavit-in-Opposition. It has been stated therein that the Writ Petition is misconceived and the same has been filed by suppressing material facts. The petitioners never applied for admission and sat for the admission test for the academic session-2004. By having recourse to fraud and forgery, they succeeded in getting themselves admitted to B.Sc., Agriculture (Hons.) course in the Faculty of Agriculture of the university. At the time of their admission, the alamats of fraud and forgery could not be detected. Anyway, a six-member inquiry committee was formed to probe into the allegations of fraud and forgery levelled against the petitioners in the matter of their admission to the university. The inquiry committee inquired into the allegations and ultimately submitted a report to the authority in the month of November, 2007. According to the report of the inquiry committee, the petitioners were fake students and they got themselves admi-tted to the university in the academic session-2004 through backstage manoeuvres and underhand means and accordingly it recommended the cance-llation of their admission from the university. Furthermore, the names of the petitioners were not recorded in the Optical Mark Reader (OMR) sheets of the university for the said academic session-2004. The non-mentioning of their names in the OMR sheets indicates that they did not sit for the admission test in order to qualify for admission to the university. The Writ Petition has been brought on some false and frivolous allegations. The impugned order dated 19.11.2008 cancelling the admission of the petitioners from the university and the subsequent decision of the

respondent no. 4 dated 27.12.2008 affirming the earlier order dated 19.11.2008 are legal and valid. That being so, no exception can be taken thereto. 5. In the Supplementary Affidavit dated 26.07.2010 filed on behalf of the petitioners, it has been mentioned that the university authority is estopped from cancelling the admission of the petitioners in the facts and circumstances of the case and their review applications were rejected without assigning any reason whatsoever. The principle of acquiescence comes into play in this case too. That being so, the university authority committed gross illegalities in cancelling the admission of the petitioners on 19.11.2008 and subsequently affirming the same on 27.12.2008. 6. The photocopies of the relevant OMR sheets have been annexed to the Supplementary Affidavit -in-Opposition dated 12.08.2010 filed on behalf of the respondent nos. 2-5. 7. In the Affidavit-in-Reply dated 26.09.2010 filed on behalf of the petitioners, it has been stated that the petitioners have filed the Writ Petition in order to vindicate their legal right and they have not suppressed any material facts in filing the same. As the petitioners were admitted to the university and as they prosecuted their studies for years together, their admission can not be cancelled in view of the principle of ‘locus penitentiae’ as contemplated by Section 21 of the General Clauses Act. It is not understood as to why the names of the petitioners did not find place in the OMR sheets and in that view of the matter, the same does not appear to be genuine. 8. At the outset, Mr. Md. Ashad Ullah, the learned Advocate appearing on behalf of the petitioners, submits that it is an indisputable fact that the impugned order dated 19.11.2008 cancelling the admission of the petitioners from the university was made without affording them any opportunity of being heard and in this perspective, the said impugned order is violative of the principle of natural justice and hence the same is without lawful authority. 9. Mr. Md. Ashad Ullah further submits that admittedly the petitioners having been admitted to the university prosecuted their studies for years together and at the time of their admission, the university authority did not raise any objection; but after a considerable lapse of time, an inquiry committee was constituted behind their back and


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suddenly their admission was cancelled by the impugned order dated 19.11.2008 and since their admission was already acted upon, the university authority can not cancel the same by the impugned order dated 19.11.2008 on the principle of ‘locus penitentiae’ as provided by Section 21 of the General Clauses Act. 10. Mr. Md. Ashad Ullah next submits that in the facts and circumstances of the case, the principles of estoppel and acquiescence hold the field and as such the university authority is estopped from cancelling the admission of the petitioners from the university. 11. Md. Md. Ashad Ullah also submits that it is the case of the respondent nos. 2-5 that the petitioners got themselves admitted to the university by resorting to alleged fraud and forgery; but the fact remains that the same have not been specified or spelt out in the Affidavit-in-Opposition and some bare statements thereabout in the Affidavit-in-Opposition will not suffice. 12. Mr. Md. Ashad Ullah further submits that right to education is implicit in and flows from the right to life guaranteed by Part III of the Constitution and from this standpoint, the petitioners can not be deprived of this fundamental right particularly when they prosecuted their studies for a considerable length of time in the university. 13. Mr. Md. Ashad Ullah next submits that the admission of the petitioners to the university is a ‘fait accompli’ and in all fairness, the university Syndicate should have allowed their review applications rescinding the earlier order dated 19.11.2008. 14. In support of the above submissions, Mr. Md. Ashad Ullah relies on the decisions in the cases of the University of Dhaka and another -Vs- Zakir Ahmed, 16 DLR (SC) 722; Principal, Chittagong Medical College and others -Vs-Shahrayar Murshed, 48 DLR (AD) 33; Bangladesh Steamer Agents Association -Vs- Bangladesh & others, 33 DLR (AD) 177; Sharwan Kumar and etc. -Vs- Director-General of Health Services and another etc., AIR 1994 Supreme Court 1448; Amirul Islam -Vs- The Secretary, Ministry of Land Administration & Land Reforms, Governm-ent of the People’s Republic of Bangladesh & others, 1988 BLD (AD) 25; Unni Krishnan, J.P. and others etc. -Vs- State of Andhra Pradesh and

others etc., AIR 1993 Supreme Court 2178; Sanatan Gauda -Vs- Berhampur University and others, AIR 1990 Supreme Court 1075; Ashok Chand Singhvi -Vs- University of Jodhpur and others, AIR 1989 Supreme Court 823 and Randir Singh-Vs-The State of Rajasthan and others, [1992(2) ESC 435 (Raj)]. 15. Per contra, Mr. M. K. Rahman, the learned Advocate appearing on behalf of the respondent nos. 2-5, submits that it is in the inquiry report that the petitioners got themselves admitted to the university by resorting to fraud and forgery and the same could not be detected at the initial stage; but in the long run it was detected by the six-member inquiry committee headed by Professor Dr. Md. Hazrat Ali, Dean of the Faculty of Agriculture of the university and on the basis of the report of the inquiry committee, the university authority issued the impugned order dated 19.11.2008 cancelling the admission of the petitio-ners from the university, though he concedes that the principle of ‘Audi Alteram Partem’ was not adhered to prior to issuance of the said order dated 19.11.2008. 16. Mr. M. K. Rahman also submits that since no legal right accrued to the petitioners, there was no question of applicability of the principle of ‘Audi Alteram Partem’ as to the cancellation of the admission of the petitioners from the university. 17. Mr. M. K. Rahman next submits that the decision in the case of the University of Dhaka and another…Vs…Zakir Ahmed reported in 16 DLR (SC) 722 has no manner of application to the facts and circumstances of the instant case inasmuch as admittedly Zakir Ahmed was a student of the Dhaka University and his expulsion therefrom was challenged before the then East Pakistan High Court and eventually Zakir Ahmed succeeded up to the Pakistan Supreme Court; but in the instant case, the very admission of the petitioners to the Sher-e-Bangla Agricultural University is under challenge and from this angle, it can not be said that the petitioners and Zakir Ahmed stand on the same footing and that being so, Zakir Ahmed’s case will not be of any avail to the petitioners. 18. Mr. M. K. Rahman also submits that had the petitioners really sat for the admission test, their names and other particulars would have been definitively mentioned in the OMR sheets and as the OMR sheets do not contain the same, it leaves


no room for doubt that they got themselves admitted to the university by resorting to fraud and forgery and those were proved during the inquiry held by the six-member inquiry committee. 19. Mr. M. K. Rahman lastly submits that in the given facts and circumstances of the case, it is crystal clear that the petitioners have come up with the present Writ Petition with unclean hands and as such, they can not get any relief from this Court. 20. Mr. Korunamoy Chakma, the learned Deputy Attorney-General appearing for the respondent no. 1, adopts the submissions advanced by Mr. M. K. Rahman. 21. We have heard the submissions of Mr. Md. Ashad Ullah and the counter-submissions of Mr. M. K. Rahman and perused the Writ Petition, Affidavit-in-Opposition, Supplementary Affidavit-in-Opposition, Supplementary Affidavit, Affidavit-in-Reply and the relevant Annexures annexed thereto. 22. It is undisputed that the impugned order dated 19.11.2008 cancelling the admission of the petitioners from the university (Annexure-‘I’) was issued without affording them any opportunity of being heard. In other words, it is an admitted fact that the principle of ‘Audi Alteram Partem’ was not adhered to prior to issuance of the said order dated 19.11.2008. What we are driving at boils down to this: the impugned order dated 19.11.2008 was passed behind the back of the petitioners. 23. The moot question in this case is whether the impugned order dated 19.11.2008 cancelling the admission of the petitioners from the university is without lawful authority and of no legal effect for not adhering to the principle of ‘Audi Alteram Partem’. 24. The principles of natural justice are applied to administrative process to ensure procedural fairness and to free it from arbitrary-ness. Violation of these principles results in jurisdictional errors. Thus in a sense, violation of these principles constitutes procedural ultra vires. It is, however, impossible to give an exact connotation of these principles as its contents are flexible and variable depending on the circumstances of each case, i.e., the nature of the function of the public functionary, the rules under which he has to act and the subject-matter he has

to deal with. These principles are classified into two categories-(i) a man can not be condemned unheard (audi alteram partem) and (ii) a man can not be the judge in his own cause (nemo debet esse judex in propria causa). The contents of these principles vary with the varying circumstances and those can not be petrified or fitted into rigid moulds. They are flexible and turn on the facts and circumstances of each case. In applying these principles, there is a need to balance the competing interests of administrative justice and the exigencies of efficient administration. These principles were applied originally to courts of justice and now extend to any person or body deciding issues affecting the rights or interests of individuals where a reasonable citizen would have legitimate expectation that the decision-making process would be subject to some rules of fair procedure. These rules apply, even though there may be no positive words in the statute requiring their application. 25. Lord Atkin in R. v. Electricity Commissioners ([1924] 1 KB 171) observed that the rules of natural justice applied to ‘any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially’. The expression ‘having the duty to act judicially’ was used in England to limit the application of the rules to decision-making bodies similar in nature to a court of law. Lord Reid, however, freed these rules from the bondage in the landmark case of Ridge v. Baldwin ([1964] AC 40). But even before this decision, the rules of natural justice were being applied in our country to administrative proceedings which might affect the person, property or other rights of the parties concerned in the dispute. In all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other right of the parties concerned. 26. In England, the application of the principles of natural justice have been expanded by introducing the concept of ‘fairness’. In Re Infant H(K) ([1967] 1 All E.R. 226), it was held that whether the function discharged is quasi-judicial or administrative, the authority must act fairly. It is sometimes thought that the concept of ‘acting fairly’ and ‘natural justice’ are different things, but


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this is wrong as Lord Scarman correctly observes that the Courts have extended the requirement of natural justice, namely, the duty to act fairly, so that it is required of a purely administrative act (Council of Civil Service Union V. Minister for the Civil Service [1984] 3 All E.R. 935). 27. An administrative act may be held to be subject to the requirements of natural justice either because it affects rights or interests and therefore involves a duty to act judicially, in accordance with the classic authorities and Ridge V. Baldwin; or it may simply be held that in our modern approach, it automatically involves a duty to act fairly and in accordance with natural justice. The Indian Supreme Court has adopted this principle holding “….this rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands” (Swadeshi Cotton Mills V. India, AIR 1981 SC 818). 28. The English Courts have further expanded the horizon of natural justice by importing the concept of ‘legitimate expectation’ and holding that from promise or from established practice, a duty to act fairly and thus to comply with natural justice may arise. Thus the concepts of ‘fairness’ and ‘legitimate expectation’ have expanded the applicability of natural justice beyond the sphere of right. 29. The application of the rules of natural justice are no longer tied to the dichotomy of right-privilege. It has been stated in “Administrative Law” by H.W.R. Wade, 5th edition at page-465: “For the purpose of natural justice, the question which matters is not whether the claimant has some legal right, but whether the legal power is being exercised over him to his disadvantage. It is not a matter of property or of vested interests, but simply of the exercise of Governmental power in a manner which is fair …” In the American jurisdiction, the right-privilege dichotomy was used to deny due process hearing where no right was involved. But starting with Gonzalez V. Freeman (334 F. 2d 570), the Courts gradually shifted in favour of the privilege cases and in the words of Professor Schwartz, “The privilege-right dichotomy is in the process of being completely eroded” (“Administrative Law”, 1976, Page-230). Article 31 of our Constitution incorporating the

concept of procedural due process, the English decisions expanding the frontiers of natural justice are fully applicable in Bangladesh.

30. The basic principle of fair procedure is that before taking any action against a man, the authority should give him notice of the case and afford him a fair opportunity to answer the case against him and to put forward his own case. The person sought to be affected must know the allegation and the materials to be used against him and he must be given a fair opportunity to correct or contradict them. The right to a fair hearing is now of universal application whenever a decision affecting the rights or interest of a man is made. But such a notice is not required where the action does not affect the complaining party. 31. From an overview of the above-mentioned decisions of various jurisdictions and extracts of the jurists, it is abundantly clear that the university authority should have afforded the petitioners an opportunity of being heard prior to issuance of the impugned order dated 19.11.2008 cancelling their admission from the university. In this regard, we are not at one with Mr. M. K. Rahman that since no legal right accrued to the petitioners, there was no question of applicability of the principle of ‘Audi Alteram Partem’. 32. Be that as it may, admittedly the petitioners submitted review applications (Annexure-‘J’ series) to the university authority seeking reversal of the impugned order dated 19.11.2008 and restoring their admission to the university only on humanitarian grounds. It does not stand to reason and logic as to why they remained conspicuously silent about the allegations of fraud and forgery in the review applications. Precisely speaking, they did not utter even a single word thereabout in the review applications. This circumstance supports the allegations of fraud and forgery levelled against them. 33. Undeniably the decision of the respondent no.4 dated 27.12.2008 on review affirmed the earlier impugned order dated 19.11.2008. Taking the earlier order dated 19.11.2008 and the subsequent decision dated 27.12.2008 together, it transpires that the earlier order dated 19.11.2008 virtually merged with the subsequent decision of the respondent no. 4 dated 27.12.2008. Against this backdrop, they are intertwined and inseparable from each other. After considering the review


applications of the petitioners, the university Syndicate undoubtedly made the decision dated 27.12.2008. In such a posture of things, it can not be said that they were condemned unheard while making the decision on 27.12.2008 affirming the earlier order dated 19.11.2008. As the earlier order dated 19.11.2008 virtually merged with the subsequent decision of the university Syndicate taken on 27.12.2008 on the review applications (Annexure-‘J’ series), the defect/irregularity/ illegality affecting the order dated 19.11.2008 was cured. This is more so in view of the strikingly noticeable fact that the petitioners maintained mysterious silence over the allegations of fraud and forgery levelled against them. Regard being had to the peculiar facts and circumstances of the case, the ultimate decision of the Syndicate dated 27.12.2008 upholding the earlier order 19.11.2008 can not be questioned mainly on the ground that the same is presumably predicated upon the report of the inquiry committee headed by one Professor Dr. Md. Hazrat Ali. 34. In this respect, the relevant extracts of the inquiry committee appear to be very relevant for our purpose and the same are quoted below verbatim:

“Z`‡š— cwijw¶Z nq †h Wzwc−‡KU fwZ©i Av‡e`b dig eënvi K‡i 3903 †ivj bs Gi wecix‡Z †gvt Igi dvi“K I 3910 †ivj bs Gi wecix‡Z †gvt gvndzRyi ingvb †K fwZ© Kiv‡bv n‡q‡Q, †hLv‡b dig weZib KwgwUi mfvcwZ cª‡dmi mì“j Avbvg mi`vi Gi ¯v¶i bKj Kiv n‡q‡Q| D³ QvÎ‡ì D‡j−wLZ †ivj bs Gi wecix‡Z OMR mx‡U Zv‡ì bvg Aš—f©~³ †bB| G‡Z cªZxqgvb nq †h, D³ †ivj b¤^‡ii wecix‡Z mswk −ó QvÎØq fwZ© cix¶vq AskMªnb K‡i bvB| †K› ªxq fwZ© KwgwUi GKRb m¤§vwbZ m`m¨ Ges AÎ wek¡we`¨vj‡qi GKRb eq‰Rô¨ Aa¨vc‡Ki ¯^v¶i bKj Kiv Ges Wzwc −‡KU dig eënvi K‡i A‰eafv‡e QvÎ fwZ© Kiv‡K ¸i“Zi Aciva e‡j KwgwU g‡b K‡i|

D³ QvÎØ‡qi m‡›`n hy³ di‡gi mv‡_ †`q †gwW‡Kj wdU‡bm di‡g †WcywU †iwRóªvi (wk¶v) Rbve L›`Kvi †mwjg †iRv Gi ¯n‡ — wjwLZ †iwR‡óªkb b¤i I ¯^v¶i i‡q‡Q Ges wk¶v kvLvi †mKkb Awdmvi †gvt Avwmd Rvnvb KZ©„K ÔÔK¨vwkqvi fwZ©i eë ’v wbbÕÕ evK¨wU wjLv i‡q‡Q| G‡Z D³ QvÎ‡ì fwZ© cªwµqvq Ab¨vb¨‡ì mv‡_ †WcywU †iwRóªvi (wk¶v) Rbve L›`Kvi †mwjg †iRv I †mKkb Awdmvi †gvt Avwmd Rvnvb m¤ú„³ wQ‡jb e‡j cªZxqgvb nq| G †¶‡Î mswk −ó `vqx e¨w³‡ì `„óvš—g~jK kvw¯— nIqv DwPZ e‡j KwgwU g‡b K‡i| ”

35. It seems that some university functionaries were involved in the perpetration of fraud and forgery as regards the admission of the petitioners to the university and the inquiry committee recommended awarding of exemplary punishment to those functionaries. 36. Article 15(kha) of the pÀ¡aL ®L¡−pÑl R¡œ-R¡œ£ i¢aÑ AdÉ¡−cn runs as follows:

“i¢aÑl pju fËcš ¢jbÉ¡ a−bÉl ¢i¢š−a ®L¡e R¡œ/R¡œ£−L ¢hnÅ¢hcÉ¡m−u i¢aÑ Ll¡ qC−m Hhw flha£Ñ−a Eq¡ fËj¡¢Za qC−m Eš² i¢aÑ h¡¢am h¢mu¡ NZÉ qC−hz”

37. Suffice it to say that the petitioners resorted to fraud and forgery at the time of their so-called admission to the university at their own peril. 38. It appears that Mr. M. K. Rahman has rightly contended that in the case of Zakir Ahmed, there was no controversy about his admission to the Dhaka University and at a subsequent stage, he was expelled therefrom for misconduct; but in the present case, the very admission of the petitioners is in question. So the footing of the petitioners is quite distinguishable from that of Zakir Ahmed (16 DLR (SC) 722). 39. It goes without saying that had the petitioners actually appeared in the admission test in the academic session-2004 as claimed by them, their names and other particulars would have been certainly mentioned in the OMR sheets (Annexure-‘3’). The non-mentioning of the same in Annexure-‘3’ leads us to the only conclusion that they did not apply for admission to the university nor did they sit for the admission test in the academic session-2004. We do not find any earthly reason to take Annexure-‘3’ with a pinch of salt. 40. Section 21 of the General Clauses Act provides for the applicability of the principle of ‘locus penitentiae’. As per that principle, the authority competent to make an order has the power to undo the same; but the order can not be withdrawn or rescinded once it has taken legal effect and certain rights are created in favour of any individual (Ziauddin -Vs- Pakistan Defence Housing Authority, 1999 PLC 723). 41. In the case of Enamul Haq (Md) -Vs- Jatiyo Bishwabiddalay and others reported in 59 DLR (HCD) 556, it has been held referring to certain earlier authorities that the power to add to, amend, vary or rescind available under Section 21 of the


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General Clauses Act does not include the authority to take away a validly acquired right. 42. Coming back to the instant case, it can not be said that the petitioners had a validly acquired right. As a matter of fact, by having recourse to fraud and forgery, they got themselves admitted to the university in collusion with some functionaries thereof. This being the position, they can not capitalize on their fraud and forgery. It is well-settled that fraud vitiates everything and by that reason, they should not be allowed to enjoy its fruit. 43. It is true that the perpetration of fraud and forgery could not be detected at the initial stage and when the same were detected by the inquiry committee, it was found that the petitioners had prosecuted their studies for some years. But even then, as we see it, they can not take advantage of their misdeeds negativing the operation of the principles of estoppel and acquiescence. 44. In the case of the Unni Krishnan, J.P. and others etc. -Vs- The State of Andhra Pradesh and others etc. reported in AIR 1993 Supreme Court 2178 adverted to by Mr. Md. Ashad Ullah, it has been held that the right to education is implicit in and flows from the right to life guaranteed by Article 21 of the Indian Constitution. Since the right to education flows from the right to life, according to Mr. Md. Ashad Ullah, the petitioners should not be deprived of this fundamental right at this stage as guaranteed by Part-III of our Constitution.

45. We are in respectful agreement with the above ‘ratio’ of the Indian Supreme Court that the right to education is implicit in and flows from the right to life, a fundamental right. But where fraud and forgery are dominant and conclusively proved, Mr. Md. Ashad Ullah can not advance any submission suiting the convenience of the petitioners. It is to be borne in mind that fraud and fair-play can not dwell together-one must exclude the other. The Court stands for fair-play only. Had there been no fraud and forgery as found by the inquiry committee of the university, we would have definitely concurred with Mr. Md. Ashad Ullah on this count. 46. According to Mr. Md. Ashad Ullah, the respondent nos. 2-5 have annexed the copies of the self-same admission forms and other related

matters to their Affidavit-in-Opposition as the petitioners have annexed to the Writ Petition and from this point of view, the impugned order dated 19.11.2008 can not be sustainable in law. We have already held that the very admission of the petitioners to the university is the product of fraud and forgery. This Court, or for that matter, any Court of law can not put a premium on the fraud and forgery committed by the petitioners in collusion with some functionaries of the university. It has already been found in the inquiry report that the admission forms and other related matters are all spurious documents and accordin-gly, the inquiry committee came to the definite finding that the petitioners did neither make any applications for admission nor did they sit for the admission test in the academic session-2004. So we are unable to be at one with Mr. Md. Ashad Ullah. 47. The facts and circumstances of the present case, it transpires, are quite distinguishable from those of the cases of the Principal, Chittagong Medical College and others -Vs- Shahrayar Murshed, 48 DLR (AD)33; Bangladesh Steamer Agents Association -Vs- Bangladesh & others, 33 DLR (AD) 177; Sharwan Kumar and etc -Vs- Director-General of Health Services and another etc., AIR 1994 Supreme Court 1448; Amirul Islam -Vs- The Secretary, Ministry of Land Administ-ration & Land Reforms, Government of the People’s Republic of Bangladesh & others, 1988 BLD (AD) 25; Sanatan Gauda -Vs- Berhampur University and others, AIR 1990 Supreme Court 1075; Ashok Chand Singhvi -Vs-University of Jodhpur and others, AIR 1989 Supreme Court 823 and Randir Singh -Vs- The State of Rajasthan and others, [1992(2) ESC 435 (Raj)]. Against this backdrop, those decisions have no manner of application to the instant case. In the facts and circumstances of the case, we hold that the petitioners have come up with the Writ Petition with unclean hands.

48. In the light of the discussions made above, we have no hesitation in holding that there is no merit in the Rule. The Rule, therefore, fails. Accordingly, the Rule is discharged without any order as to costs. Ed.


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ving the operation of the principles of estoppel and acquiescence. ...(1,2,33,37,39,40,42 and 43).

University of Dhaka nd another Vs. Zakir Ahmed, 16 DLR (SC) 722; Principal, Chittagong Medical College and another Vs. Shahrayar Murshed, 48 DLR (AD) 33; Bangladesh Steamer Agents Association Vs. Bangladesh and others, 33 DLR (AD) 177; Sharwar Kumar and others Vs. Director-General of Health Services and another, AIR 1994 SC 1448; Amirul Islam Vs. The Secretary, Ministry of Land Administration and Land Reforms, Government of Bangladesh and others, 1988 BLD (AD) 25; Uani Krishnan, J.P. and others Vs. State of Andhra Pradesh and others, AIR 1993 SC 2178; Sanatan Gauda Vs. Berhampur University and others, AIR 1990SC 1075; Ashok Chand Singhvi Vs. University of Jodhpur and others, AIR 1989 SC 823; Randir Singh Vs The State of Rajashtan and others, 1992(2) ESC 435 (Raj); R Vs. Electricity Commissioners (1924) 1KB 171; Ridge Vs. Baldwan, 1964 AC 40; In Re Infant H(K)(1967) 1 All E.R. 226; Council of Civil Service Union Vs. Minister for the Civil Service (1984)3 All E.R. 935; Swadeshi Cotton Mills Vs. India, AIR 1981 SC 818; Ziauddin Vs. Pakistan Defence Housing Authority, 1999 PLC 723; Enamul Huq (Md) Vs. Jatiyo Bishwabiddaloy and others, 59 DLR 556 ref. Mr. Md. Ashad Ullah with Ms. Khaleda Sultana Noor, Advocates

…For the petitioners.

Mr. Korunamoy Chakma, DAG with Mr. Nazibur Rahman, AAG

…For the respondent no. 1.

Mr. M. K. Rahman with Mr. A.K.M. Asiful Haque, Advocates

….For the respondent nos. 2-5.

Judgment

Moyeenul Islam Chowdhury, j: A Rule Nisi was issued calling upon the

respondents to show cause as to why the impugned order of the respondent no. 2 communicated under the signature of the respondent no. 5 vide Memo No. ®nL«¢h/ ¢px 35aj(h¡Ù¹x)fËx/08/731(2) dated 19.11.2008 (Annexure-‘I’) cancelling the admission of the petitioners from Sher-e-Bangla Agricultural University, Dhaka should not be declared to be

without lawful authority and of no legal effect and why the respondent nos. 2-5 should not be directed to re-admit the petitioners and allow them to prosecute their studies in their respective Levels and Semesters of B.Sc. Agriculture(Hons.) in the Faculty of Agriculture of the said Agricultural University. 2. Subsequently, a further Rule Nisi was issued calling upon the respondents to show cause as to why the decision of the respondent no. 4 dated 27.12.2008, so far as it relates to the petitioners, should not be declared to be without lawful authority and of no legal effect. 3. It has been stated in the Writ Petition that having prescribed qualifications for admission to B.Sc. Agriculture (Hons.) Level-1, Semester-1, Faculty of Agriculture, Sher-e-Bangla Agricultural University, Dhaka, the petitioners collected Admission Forms being Form Nos. 3910 and 3903 from the office of the university for admission in the academic session-2004, filled up the Admission Forms and submitted the same to the university authority. After scrutiny, everything was found all right and they duly appeared in the Admission Test in the academic session-2004. As per pÀ¡aL ®L¡−pÑl R¡œ-R¡œ£ i¢aÑ AdÉ¡−cn, they were found eligible for admission. The university by its Memo No. 953 dated 21.03.2004 published the result of the Admission Test. Having been qualified in the Admission Test, the petitioners were admitted to their respective courses. After admission they started prosecuting their studies in B.Sc. Agriculture (Hons.), Level-1, Semester-1 in the Faculty of Agriculture in the academic session-2004. Anyway, at one stage, there was a hue and cry about illegal admission of some students including the petitioners to the university in that academic session and a news item was accordingly published in this regard in different newspapers. Ultimately a six-member committee was formed by the university authority to inquire into the allegations of illegal admission of the students to the university in the academic session-2004. On the basis of the inquiry report, an order was served upon the petitioners under the signature of the respondent no. 5 and communicated by Memo No. ®nL«¢h/ ¢px 35aj (h¡Ù¹x)fËx/08/731(2) dated 19.11.2008 cancelling their admission from the university. They were not afforded any opportunity of being heard prior to cancellation of their admission. As a matter of fact, they were condemned unheard. So


the impugned order dated 19.11.2008 is without lawful authority. On receipt of the impugned order dated 19.11.2008, the petitioners examined the resolution of the Syndicate dated 01.11.2008 taken in its 35th Meeting from the office of the respondent No.5 and came to know about the reasons for cancellation of their admission to the university. Thereafter the petitioners made review applications to the authority concerned for review of the impugned order dated 19.11.2008 and to allow them to prosecute their studies in the university. But the Syndicate rejected their review applications in its meeting held on 27.12.2008 affirming the earlier order dated 19.11.2008. The decision of the Syndicate dated 27.12.2008 is of no legal effect. 4. The respondent nos. 2-5 have contested the Rule by filing a joint Affidavit-in-Opposition. It has been stated therein that the Writ Petition is misconceived and the same has been filed by suppressing material facts. The petitioners never applied for admission and sat for the admission test for the academic session-2004. By having recourse to fraud and forgery, they succeeded in getting themselves admitted to B.Sc., Agriculture (Hons.) course in the Faculty of Agriculture of the university. At the time of their admission, the alamats of fraud and forgery could not be detected. Anyway, a six-member inquiry committee was formed to probe into the allegations of fraud and forgery levelled against the petitioners in the matter of their admission to the university. The inquiry committee inquired into the allegations and ultimately submitted a report to the authority in the month of November, 2007. According to the report of the inquiry committee, the petitioners were fake students and they got themselves admi-tted to the university in the academic session-2004 through backstage manoeuvres and underhand means and accordingly it recommended the cance-llation of their admission from the university. Furthermore, the names of the petitioners were not recorded in the Optical Mark Reader (OMR) sheets of the university for the said academic session-2004. The non-mentioning of their names in the OMR sheets indicates that they did not sit for the admission test in order to qualify for admission to the university. The Writ Petition has been brought on some false and frivolous allegations. The impugned order dated 19.11.2008 cancelling the admission of the petitioners from the university and the subsequent decision of the

respondent no. 4 dated 27.12.2008 affirming the earlier order dated 19.11.2008 are legal and valid. That being so, no exception can be taken thereto. 5. In the Supplementary Affidavit dated 26.07.2010 filed on behalf of the petitioners, it has been mentioned that the university authority is estopped from cancelling the admission of the petitioners in the facts and circumstances of the case and their review applications were rejected without assigning any reason whatsoever. The principle of acquiescence comes into play in this case too. That being so, the university authority committed gross illegalities in cancelling the admission of the petitioners on 19.11.2008 and subsequently affirming the same on 27.12.2008. 6. The photocopies of the relevant OMR sheets have been annexed to the Supplementary Affidavit -in-Opposition dated 12.08.2010 filed on behalf of the respondent nos. 2-5. 7. In the Affidavit-in-Reply dated 26.09.2010 filed on behalf of the petitioners, it has been stated that the petitioners have filed the Writ Petition in order to vindicate their legal right and they have not suppressed any material facts in filing the same. As the petitioners were admitted to the university and as they prosecuted their studies for years together, their admission can not be cancelled in view of the principle of ‘locus penitentiae’ as contemplated by Section 21 of the General Clauses Act. It is not understood as to why the names of the petitioners did not find place in the OMR sheets and in that view of the matter, the same does not appear to be genuine. 8. At the outset, Mr. Md. Ashad Ullah, the learned Advocate appearing on behalf of the petitioners, submits that it is an indisputable fact that the impugned order dated 19.11.2008 cancelling the admission of the petitioners from the university was made without affording them any opportunity of being heard and in this perspective, the said impugned order is violative of the principle of natural justice and hence the same is without lawful authority. 9. Mr. Md. Ashad Ullah further submits that admittedly the petitioners having been admitted to the university prosecuted their studies for years together and at the time of their admission, the university authority did not raise any objection; but after a considerable lapse of time, an inquiry committee was constituted behind their back and


447

suddenly their admission was cancelled by the impugned order dated 19.11.2008 and since their admission was already acted upon, the university authority can not cancel the same by the impugned order dated 19.11.2008 on the principle of ‘locus penitentiae’ as provided by Section 21 of the General Clauses Act. 10. Mr. Md. Ashad Ullah next submits that in the facts and circumstances of the case, the principles of estoppel and acquiescence hold the field and as such the university authority is estopped from cancelling the admission of the petitioners from the university. 11. Md. Md. Ashad Ullah also submits that it is the case of the respondent nos. 2-5 that the petitioners got themselves admitted to the university by resorting to alleged fraud and forgery; but the fact remains that the same have not been specified or spelt out in the Affidavit-in-Opposition and some bare statements thereabout in the Affidavit-in-Opposition will not suffice. 12. Mr. Md. Ashad Ullah further submits that right to education is implicit in and flows from the right to life guaranteed by Part III of the Constitution and from this standpoint, the petitioners can not be deprived of this fundamental right particularly when they prosecuted their studies for a considerable length of time in the university. 13. Mr. Md. Ashad Ullah next submits that the admission of the petitioners to the university is a ‘fait accompli’ and in all fairness, the university Syndicate should have allowed their review applications rescinding the earlier order dated 19.11.2008. 14. In support of the above submissions, Mr. Md. Ashad Ullah relies on the decisions in the cases of the University of Dhaka and another -Vs- Zakir Ahmed, 16 DLR (SC) 722; Principal, Chittagong Medical College and others -Vs-Shahrayar Murshed, 48 DLR (AD) 33; Bangladesh Steamer Agents Association -Vs- Bangladesh & others, 33 DLR (AD) 177; Sharwan Kumar and etc. -Vs- Director-General of Health Services and another etc., AIR 1994 Supreme Court 1448; Amirul Islam -Vs- The Secretary, Ministry of Land Administration & Land Reforms, Governm-ent of the People’s Republic of Bangladesh & others, 1988 BLD (AD) 25; Unni Krishnan, J.P. and others etc. -Vs- State of Andhra Pradesh and

others etc., AIR 1993 Supreme Court 2178; Sanatan Gauda -Vs- Berhampur University and others, AIR 1990 Supreme Court 1075; Ashok Chand Singhvi -Vs- University of Jodhpur and others, AIR 1989 Supreme Court 823 and Randir Singh-Vs-The State of Rajasthan and others, [1992(2) ESC 435 (Raj)]. 15. Per contra, Mr. M. K. Rahman, the learned Advocate appearing on behalf of the respondent nos. 2-5, submits that it is in the inquiry report that the petitioners got themselves admitted to the university by resorting to fraud and forgery and the same could not be detected at the initial stage; but in the long run it was detected by the six-member inquiry committee headed by Professor Dr. Md. Hazrat Ali, Dean of the Faculty of Agriculture of the university and on the basis of the report of the inquiry committee, the university authority issued the impugned order dated 19.11.2008 cancelling the admission of the petitio-ners from the university, though he concedes that the principle of ‘Audi Alteram Partem’ was not adhered to prior to issuance of the said order dated 19.11.2008. 16. Mr. M. K. Rahman also submits that since no legal right accrued to the petitioners, there was no question of applicability of the principle of ‘Audi Alteram Partem’ as to the cancellation of the admission of the petitioners from the university. 17. Mr. M. K. Rahman next submits that the decision in the case of the University of Dhaka and another…Vs…Zakir Ahmed reported in 16 DLR (SC) 722 has no manner of application to the facts and circumstances of the instant case inasmuch as admittedly Zakir Ahmed was a student of the Dhaka University and his expulsion therefrom was challenged before the then East Pakistan High Court and eventually Zakir Ahmed succeeded up to the Pakistan Supreme Court; but in the instant case, the very admission of the petitioners to the Sher-e-Bangla Agricultural University is under challenge and from this angle, it can not be said that the petitioners and Zakir Ahmed stand on the same footing and that being so, Zakir Ahmed’s case will not be of any avail to the petitioners. 18. Mr. M. K. Rahman also submits that had the petitioners really sat for the admission test, their names and other particulars would have been definitively mentioned in the OMR sheets and as the OMR sheets do not contain the same, it leaves


no room for doubt that they got themselves admitted to the university by resorting to fraud and forgery and those were proved during the inquiry held by the six-member inquiry committee. 19. Mr. M. K. Rahman lastly submits that in the given facts and circumstances of the case, it is crystal clear that the petitioners have come up with the present Writ Petition with unclean hands and as such, they can not get any relief from this Court. 20. Mr. Korunamoy Chakma, the learned Deputy Attorney-General appearing for the respondent no. 1, adopts the submissions advanced by Mr. M. K. Rahman. 21. We have heard the submissions of Mr. Md. Ashad Ullah and the counter-submissions of Mr. M. K. Rahman and perused the Writ Petition, Affidavit-in-Opposition, Supplementary Affidavit-in-Opposition, Supplementary Affidavit, Affidavit-in-Reply and the relevant Annexures annexed thereto. 22. It is undisputed that the impugned order dated 19.11.2008 cancelling the admission of the petitioners from the university (Annexure-‘I’) was issued without affording them any opportunity of being heard. In other words, it is an admitted fact that the principle of ‘Audi Alteram Partem’ was not adhered to prior to issuance of the said order dated 19.11.2008. What we are driving at boils down to this: the impugned order dated 19.11.2008 was passed behind the back of the petitioners. 23. The moot question in this case is whether the impugned order dated 19.11.2008 cancelling the admission of the petitioners from the university is without lawful authority and of no legal effect for not adhering to the principle of ‘Audi Alteram Partem’. 24. The principles of natural justice are applied to administrative process to ensure procedural fairness and to free it from arbitrary-ness. Violation of these principles results in jurisdictional errors. Thus in a sense, violation of these principles constitutes procedural ultra vires. It is, however, impossible to give an exact connotation of these principles as its contents are flexible and variable depending on the circumstances of each case, i.e., the nature of the function of the public functionary, the rules under which he has to act and the subject-matter he has

to deal with. These principles are classified into two categories-(i) a man can not be condemned unheard (audi alteram partem) and (ii) a man can not be the judge in his own cause (nemo debet esse judex in propria causa). The contents of these principles vary with the varying circumstances and those can not be petrified or fitted into rigid moulds. They are flexible and turn on the facts and circumstances of each case. In applying these principles, there is a need to balance the competing interests of administrative justice and the exigencies of efficient administration. These principles were applied originally to courts of justice and now extend to any person or body deciding issues affecting the rights or interests of individuals where a reasonable citizen would have legitimate expectation that the decision-making process would be subject to some rules of fair procedure. These rules apply, even though there may be no positive words in the statute requiring their application. 25. Lord Atkin in R. v. Electricity Commissioners ([1924] 1 KB 171) observed that the rules of natural justice applied to ‘any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially’. The expression ‘having the duty to act judicially’ was used in England to limit the application of the rules to decision-making bodies similar in nature to a court of law. Lord Reid, however, freed these rules from the bondage in the landmark case of Ridge v. Baldwin ([1964] AC 40). But even before this decision, the rules of natural justice were being applied in our country to administrative proceedings which might affect the person, property or other rights of the parties concerned in the dispute. In all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other right of the parties concerned. 26. In England, the application of the principles of natural justice have been expanded by introducing the concept of ‘fairness’. In Re Infant H(K) ([1967] 1 All E.R. 226), it was held that whether the function discharged is quasi-judicial or administrative, the authority must act fairly. It is sometimes thought that the concept of ‘acting fairly’ and ‘natural justice’ are different things, but


449

this is wrong as Lord Scarman correctly observes that the Courts have extended the requirement of natural justice, namely, the duty to act fairly, so that it is required of a purely administrative act (Council of Civil Service Union V. Minister for the Civil Service [1984] 3 All E.R. 935). 27. An administrative act may be held to be subject to the requirements of natural justice either because it affects rights or interests and therefore involves a duty to act judicially, in accordance with the classic authorities and Ridge V. Baldwin; or it may simply be held that in our modern approach, it automatically involves a duty to act fairly and in accordance with natural justice. The Indian Supreme Court has adopted this principle holding “….this rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands” (Swadeshi Cotton Mills V. India, AIR 1981 SC 818). 28. The English Courts have further expanded the horizon of natural justice by importing the concept of ‘legitimate expectation’ and holding that from promise or from established practice, a duty to act fairly and thus to comply with natural justice may arise. Thus the concepts of ‘fairness’ and ‘legitimate expectation’ have expanded the applicability of natural justice beyond the sphere of right. 29. The application of the rules of natural justice are no longer tied to the dichotomy of right-privilege. It has been stated in “Administrative Law” by H.W.R. Wade, 5th edition at page-465: “For the purpose of natural justice, the question which matters is not whether the claimant has some legal right, but whether the legal power is being exercised over him to his disadvantage. It is not a matter of property or of vested interests, but simply of the exercise of Governmental power in a manner which is fair …” In the American jurisdiction, the right-privilege dichotomy was used to deny due process hearing where no right was involved. But starting with Gonzalez V. Freeman (334 F. 2d 570), the Courts gradually shifted in favour of the privilege cases and in the words of Professor Schwartz, “The privilege-right dichotomy is in the process of being completely eroded” (“Administrative Law”, 1976, Page-230). Article 31 of our Constitution incorporating the

concept of procedural due process, the English decisions expanding the frontiers of natural justice are fully applicable in Bangladesh.

30. The basic principle of fair procedure is that before taking any action against a man, the authority should give him notice of the case and afford him a fair opportunity to answer the case against him and to put forward his own case. The person sought to be affected must know the allegation and the materials to be used against him and he must be given a fair opportunity to correct or contradict them. The right to a fair hearing is now of universal application whenever a decision affecting the rights or interest of a man is made. But such a notice is not required where the action does not affect the complaining party. 31. From an overview of the above-mentioned decisions of various jurisdictions and extracts of the jurists, it is abundantly clear that the university authority should have afforded the petitioners an opportunity of being heard prior to issuance of the impugned order dated 19.11.2008 cancelling their admission from the university. In this regard, we are not at one with Mr. M. K. Rahman that since no legal right accrued to the petitioners, there was no question of applicability of the principle of ‘Audi Alteram Partem’. 32. Be that as it may, admittedly the petitioners submitted review applications (Annexure-‘J’ series) to the university authority seeking reversal of the impugned order dated 19.11.2008 and restoring their admission to the university only on humanitarian grounds. It does not stand to reason and logic as to why they remained conspicuously silent about the allegations of fraud and forgery in the review applications. Precisely speaking, they did not utter even a single word thereabout in the review applications. This circumstance supports the allegations of fraud and forgery levelled against them. 33. Undeniably the decision of the respondent no.4 dated 27.12.2008 on review affirmed the earlier impugned order dated 19.11.2008. Taking the earlier order dated 19.11.2008 and the subsequent decision dated 27.12.2008 together, it transpires that the earlier order dated 19.11.2008 virtually merged with the subsequent decision of the respondent no. 4 dated 27.12.2008. Against this backdrop, they are intertwined and inseparable from each other. After considering the review


applications of the petitioners, the university Syndicate undoubtedly made the decision dated 27.12.2008. In such a posture of things, it can not be said that they were condemned unheard while making the decision on 27.12.2008 affirming the earlier order dated 19.11.2008. As the earlier order dated 19.11.2008 virtually merged with the subsequent decision of the university Syndicate taken on 27.12.2008 on the review applications (Annexure-‘J’ series), the defect/irregularity/ illegality affecting the order dated 19.11.2008 was cured. This is more so in view of the strikingly noticeable fact that the petitioners maintained mysterious silence over the allegations of fraud and forgery levelled against them. Regard being had to the peculiar facts and circumstances of the case, the ultimate decision of the Syndicate dated 27.12.2008 upholding the earlier order 19.11.2008 can not be questioned mainly on the ground that the same is presumably predicated upon the report of the inquiry committee headed by one Professor Dr. Md. Hazrat Ali. 34. In this respect, the relevant extracts of the inquiry committee appear to be very relevant for our purpose and the same are quoted below verbatim:

“Z`‡š— cwijw¶Z nq †h Wzwc−‡KU fwZ©i Av‡e`b dig eënvi K‡i 3903 †ivj bs Gi wecix‡Z †gvt Igi dvi“K I 3910 †ivj bs Gi wecix‡Z †gvt gvndzRyi ingvb †K fwZ© Kiv‡bv n‡q‡Q, †hLv‡b dig weZib KwgwUi mfvcwZ cª‡dmi mì“j Avbvg mi`vi Gi ¯v¶i bKj Kiv n‡q‡Q| D³ QvÎ‡ì D‡j−wLZ †ivj bs Gi wecix‡Z OMR mx‡U Zv‡ì bvg Aš—f©~³ †bB| G‡Z cªZxqgvb nq †h, D³ †ivj b¤^‡ii wecix‡Z mswk −ó QvÎØq fwZ© cix¶vq AskMªnb K‡i bvB| †K› ªxq fwZ© KwgwUi GKRb m¤§vwbZ m`m¨ Ges AÎ wek¡we`¨vj‡qi GKRb eq‰Rô¨ Aa¨vc‡Ki ¯^v¶i bKj Kiv Ges Wzwc −‡KU dig eënvi K‡i A‰eafv‡e QvÎ fwZ© Kiv‡K ¸i“Zi Aciva e‡j KwgwU g‡b K‡i|

D³ QvÎØ‡qi m‡›`n hy³ di‡gi mv‡_ †`q †gwW‡Kj wdU‡bm di‡g †WcywU †iwRóªvi (wk¶v) Rbve L›`Kvi †mwjg †iRv Gi ¯n‡ — wjwLZ †iwR‡óªkb b¤i I ¯^v¶i i‡q‡Q Ges wk¶v kvLvi †mKkb Awdmvi †gvt Avwmd Rvnvb KZ©„K ÔÔK¨vwkqvi fwZ©i eë ’v wbbÕÕ evK¨wU wjLv i‡q‡Q| G‡Z D³ QvÎ‡ì fwZ© cªwµqvq Ab¨vb¨‡ì mv‡_ †WcywU †iwRóªvi (wk¶v) Rbve L›`Kvi †mwjg †iRv I †mKkb Awdmvi †gvt Avwmd Rvnvb m¤ú„³ wQ‡jb e‡j cªZxqgvb nq| G †¶‡Î mswk −ó `vqx e¨w³‡ì `„óvš—g~jK kvw¯— nIqv DwPZ e‡j KwgwU g‡b K‡i| ”

35. It seems that some university functionaries were involved in the perpetration of fraud and forgery as regards the admission of the petitioners to the university and the inquiry committee recommended awarding of exemplary punishment to those functionaries. 36. Article 15(kha) of the pÀ¡aL ®L¡−pÑl R¡œ-R¡œ£ i¢aÑ AdÉ¡−cn runs as follows:

“i¢aÑl pju fËcš ¢jbÉ¡ a−bÉl ¢i¢š−a ®L¡e R¡œ/R¡œ£−L ¢hnÅ¢hcÉ¡m−u i¢aÑ Ll¡ qC−m Hhw flha£Ñ−a Eq¡ fËj¡¢Za qC−m Eš² i¢aÑ h¡¢am h¢mu¡ NZÉ qC−hz”

37. Suffice it to say that the petitioners resorted to fraud and forgery at the time of their so-called admission to the university at their own peril. 38. It appears that Mr. M. K. Rahman has rightly contended that in the case of Zakir Ahmed, there was no controversy about his admission to the Dhaka University and at a subsequent stage, he was expelled therefrom for misconduct; but in the present case, the very admission of the petitioners is in question. So the footing of the petitioners is quite distinguishable from that of Zakir Ahmed (16 DLR (SC) 722). 39. It goes without saying that had the petitioners actually appeared in the admission test in the academic session-2004 as claimed by them, their names and other particulars would have been certainly mentioned in the OMR sheets (Annexure-‘3’). The non-mentioning of the same in Annexure-‘3’ leads us to the only conclusion that they did not apply for admission to the university nor did they sit for the admission test in the academic session-2004. We do not find any earthly reason to take Annexure-‘3’ with a pinch of salt. 40. Section 21 of the General Clauses Act provides for the applicability of the principle of ‘locus penitentiae’. As per that principle, the authority competent to make an order has the power to undo the same; but the order can not be withdrawn or rescinded once it has taken legal effect and certain rights are created in favour of any individual (Ziauddin -Vs- Pakistan Defence Housing Authority, 1999 PLC 723). 41. In the case of Enamul Haq (Md) -Vs- Jatiyo Bishwabiddalay and others reported in 59 DLR (HCD) 556, it has been held referring to certain earlier authorities that the power to add to, amend, vary or rescind available under Section 21 of the


451

General Clauses Act does not include the authority to take away a validly acquired right. 42. Coming back to the instant case, it can not be said that the petitioners had a validly acquired right. As a matter of fact, by having recourse to fraud and forgery, they got themselves admitted to the university in collusion with some functionaries thereof. This being the position, they can not capitalize on their fraud and forgery. It is well-settled that fraud vitiates everything and by that reason, they should not be allowed to enjoy its fruit. 43. It is true that the perpetration of fraud and forgery could not be detected at the initial stage and when the same were detected by the inquiry committee, it was found that the petitioners had prosecuted their studies for some years. But even then, as we see it, they can not take advantage of their misdeeds negativing the operation of the principles of estoppel and acquiescence. 44. In the case of the Unni Krishnan, J.P. and others etc. -Vs- The State of Andhra Pradesh and others etc. reported in AIR 1993 Supreme Court 2178 adverted to by Mr. Md. Ashad Ullah, it has been held that the right to education is implicit in and flows from the right to life guaranteed by Article 21 of the Indian Constitution. Since the right to education flows from the right to life, according to Mr. Md. Ashad Ullah, the petitioners should not be deprived of this fundamental right at this stage as guaranteed by Part-III of our Constitution.

45. We are in respectful agreement with the above ‘ratio’ of the Indian Supreme Court that the right to education is implicit in and flows from the right to life, a fundamental right. But where fraud and forgery are dominant and conclusively proved, Mr. Md. Ashad Ullah can not advance any submission suiting the convenience of the petitioners. It is to be borne in mind that fraud and fair-play can not dwell together-one must exclude the other. The Court stands for fair-play only. Had there been no fraud and forgery as found by the inquiry committee of the university, we would have definitely concurred with Mr. Md. Ashad Ullah on this count. 46. According to Mr. Md. Ashad Ullah, the respondent nos. 2-5 have annexed the copies of the self-same admission forms and other related

matters to their Affidavit-in-Opposition as the petitioners have annexed to the Writ Petition and from this point of view, the impugned order dated 19.11.2008 can not be sustainable in law. We have already held that the very admission of the petitioners to the university is the product of fraud and forgery. This Court, or for that matter, any Court of law can not put a premium on the fraud and forgery committed by the petitioners in collusion with some functionaries of the university. It has already been found in the inquiry report that the admission forms and other related matters are all spurious documents and accordin-gly, the inquiry committee came to the definite finding that the petitioners did neither make any applications for admission nor did they sit for the admission test in the academic session-2004. So we are unable to be at one with Mr. Md. Ashad Ullah. 47. The facts and circumstances of the present case, it transpires, are quite distinguishable from those of the cases of the Principal, Chittagong Medical College and others -Vs- Shahrayar Murshed, 48 DLR (AD)33; Bangladesh Steamer Agents Association -Vs- Bangladesh & others, 33 DLR (AD) 177; Sharwan Kumar and etc -Vs- Director-General of Health Services and another etc., AIR 1994 Supreme Court 1448; Amirul Islam -Vs- The Secretary, Ministry of Land Administ-ration & Land Reforms, Government of the People’s Republic of Bangladesh & others, 1988 BLD (AD) 25; Sanatan Gauda -Vs- Berhampur University and others, AIR 1990 Supreme Court 1075; Ashok Chand Singhvi -Vs-University of Jodhpur and others, AIR 1989 Supreme Court 823 and Randir Singh -Vs- The State of Rajasthan and others, [1992(2) ESC 435 (Raj)]. Against this backdrop, those decisions have no manner of application to the instant case. In the facts and circumstances of the case, we hold that the petitioners have come up with the Writ Petition with unclean hands.

48. In the light of the discussions made above, we have no hesitation in holding that there is no merit in the Rule. The Rule, therefore, fails. Accordingly, the Rule is discharged without any order as to costs. Ed.

I LNJ (2012) Md. Mazedul Islam (Limon) Vs. Most Nazi Fatema Tamanna and others (Nozrul Islam Chowdhury, J.)

431

HIGH COURT DIVISION (Civil Appellate Jurisdiction)

Mr. Nozrul Islam Chowdhury, J..

And

Mr. K. M. Kamrul Kader, J.

Judgment 16.05.2012

}

}

}

Md. Mazedul Islam (Limon)

...Appellant.

Vs.

Most Nazi Fatema Tamanna and others.

...Respondent

Code of Civil Procedure (V of 1908) Order VII, rule 11 Family Courts Ordinance (XVII of 1985) Sections 3 and 5

The instant suit is a regular suit before a Civil Court claiming a decree for declaration that the Kabinnama is a forged and fabricated one and there is nothing in the plaint showing that there is any legal bar in proceeding with the said suit, learned Judge rejected the plaint on the basis of extraneous consideration without keeping himself confined to the averments made in the plaint itself. ...(7)

Judgment

Nozrul Islam Chowdhury.J: The supplementary affidavit filed by

the appellant do form part of the main application.

2. This appeal is directed against the judgment and decree dated 23.06.2011 passed by the learned Joint District Judge, 1st Court, Joypurhat, in Title Suit No. 14 of 2011 rejecting the plaint of the suit.

3. Mr. Dewaft Abdul Wahab Kazal, the learned Advocate appearing for the appellant has taken us through the materials on record including the impugned order and then submits that the impugned order rejecting the plaint has been passed by the learned Joint District Judge on the basis of extraneous consideration in as much as while disposing of an application for rejection of the plaint

*F. M. A. No. 215 of 2011

the leaned Joint District Judge ought to have confined his attention to the plaint and plaint only and nothing beyond but in the instant case while passing the impugned order the learned Joint District Judge has taken into consideration the pendency of a different case between the same party, therefore, the impugned order suffers from illegality.

4. The learned Advocate for the appellant submits further that the learned Joint District Judge has taken an erroneous view with respect to the jurisdiction of the Family Court in that Section 5 of the Family Court provides for exclusive jurisdiction to entertain and disposing of any suit relating to dissolution of marriage, restitution of conjugal right, dowry, maintenance and guardian ship and custody of the children but in the instant suit being a regular suit before a civil court brought under section 39 of the Specific Relief Act urging an allegation of forgery against the defendants of creating a Kabinnama by means of forgery as such the matter in issue involved in the suit cannot be one and the same as that of the suit instituted under the Family Court Ordinance by the defendants against the plaintiff. Therefore, the ground on which the plaint has been rejected as not sustainable in law.

5. Mr. Md. Nurul Mostafa, the learned Advo-cate appearing for the respondents submits that Section 5 of the Family Court Ordina-nce has provided exclusive jurisdiction for the Family Court to decide dowry and some other related matters between the husband and wife and in view of the pendency of the another suit being Family Suit No. 25 of 2011 in between the same parties where the defendants of the instant suit claims maintenance and dowry as plaintiff. The question of forging could very well be raised in that particular suit by the defendants.

6. Section 3 of the Family Court Ordinance which provides a overriding clause therefore

Md. Mazedul Islam (Limon) Vs. Most Nazi Fatema Tamanna and others (Nozrul Islam Chowdhury, J.) I LNJ (2012) 432

the learned Advocate for the respondents submits that it is a overriding clause which excludes any other jurisdiction to decide the question relating the matters in respect of section 5 of the Family Court Ordinance, therefore, the impugned order do not call for any interference by this court.

7. Having heard the learned Advocates from both sides and upon going through the materials placed in the case we find substance in the submission made by the learned Advocate for the appellant in as much as the instant suit is a regular suit before a civil court claiming a decree for declaration that the kabinnama is a forged and fabricated one and there is nothing within the four corners of the plaint which has been annexed before us to show that there is any legal bar in proceeding with the said suit and having done so we are also of the opinion that the learned Joint District Judge passed the impugned order on the basis of extraneous consideration without keeping himself confined to the averments or recitals made in the plaint itself. Since the settled law in this connection is that while rejecting a plait in a civil suit the court has to confine its attention to the averments made in the plaint itself and nothing beyond. But in the instant case to arrive at a finding as done by the Joint District Judge to the effect that the Family Court has to try the issue involved in the instant suit is not acceptable under the established principle of law.

8. In view what has been stated above, this appeal is allowed and the impugned order No. 3 dated 23.06.2011 and the decree passed in Title Suit No. 14 of 2011 by the learned Joint District Judge, 1st Court, Joypurhat is hereby set aside and the learned Joint District Judge is directed to proceed with the case in accordance with law. The office is directed to communicate this order at once for compliance.

Ed.

HIGH COURT DIVISION (Civil Revisional Jurisdiction)

Mr. Sheikh Abdul Awal, J..

Judgment 22.11.2011

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}

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Saijuddin Molla. ...Petitioner. Vs.

Abdur Rahman and others.

...Opposite parties

State Acquisition and Tanency Act (XXVIII of 1951) Section 96 During the pendency of the pre-emption case the vendor (full brother of the pre-emptor) Jonab Ali died but the pre-emptor did not implead the heirs of Jonab Ali and full brother of pre-emptor named Anwar transferred his share but the pre-emptor did not implead the transferee in the said application is a serious defect of party since impleading of a co-sharer whether by inheritance or by purchase is a mandatory provision of section 96 of the SAT Act. ...(15)

State Acquisition and Tenancy Act (XXVII of 1951) Section 96 (10) The pre-emptee purchaser was a first decree co-sharer in the tenancy who acquired interest in the tenancy by purchase along with 11 others includ-ing Koyed Ali, the father of the pre-emptor. Therefore, the transfer in question made to the petitioner is protected and immune from pre-emption as per provision of the sub section 10 of section 96 of the State Acquisition and Tenancy Act, 1950.

33 DLR (AD) 113; 31 DLR (AD) 89 and Ashini Kumar Karmakar being died his heirs Vs. Hari Mohan Shil and others, 4 BLD (AD) 27 ref.

Mr. Syed Mahmudul Ahsan, Advocate ...For the petitioner.

Mr. Probir Halder with Mr. Abul Kalam Azad, Advocates

...For the Opposite-Party No. 1.

Judgment

Sheikh Abdul Awal, J. This Rule was issued calling upon the opposite party No.1 to show cause as to why the

Civil Revision No. 1251 of 2010.

Saijuddin Molla Vs. Abdur Rahman and others. (Sheikh Abdul Awal, J.)

Nazir Ahmed and ohters Vs. Md. Fajal Ahmed and ohters. (Nozrul Islam Chowdhury, J.) I LNJ (2012) 414

that it was owing to non service of notice upon Sachinn Chandra Mohantha the only admitted heir of the admitted owners, the auction sale was set aside by the Certificate Officer in Miscellenous Case No.2/73-74. .....(49)

On a perusal of Ext. (Kha) we find that the said application was filed jointly by three persons namely (1) Sachindra Chandra only heir of admitted owner (2) Rosomoy Chandra Nath and (3) Abdul Hashem against Taheruddin the auction purchaser, claimed by plaintiff side and that application was filed for setting aside of certificate sale took place in Certificate Case No. 188(S)/64-65 under section 23(2) of the Public Demand Recovery Act,1913. Certified copy of that document was obtained as back as in the year 1974 while the instant suit was filed in the year 1997, therefore, long before the institution of the instant suit those two Exts. namely (Ka) and (Kha) were collected from the side of the defendants and on perusal of the Ext. Kha we find a clear averment made therein testifying the assertions made in the written statement filed by the defendants and the deposition of their witnesses made in the suit. Having given a look to those two documents with bear eyes those can not but be accepted as genuine ones and the question of fabrication of those documents for the purpose of the suit can not be raised at all. These are genuine documents evidencing the official act canceling the auction sale held in Certificate Case No. 188/64-65 was done in due process. Since a presumption of genuineness of the said cancell-ation of auction sale is available under Section 80 of the Evidence Act and the said presumption has not at all be rebutted by the plaintiff’s, therefore, we can safely accept the position that the sale though held in the year 1964 in favour of Taheru-ddin in Certificate Case No. 188/64-65 yet the same was subsequently set aside in a regular proceeding in Miscellaneous Case No. 2/73-74 brought by the three persons including one who is the sole heir of admitted owner, therefore, we have no hesitation to arrive at a finding that the auction sale in favour of Taheruddin in connection with Certificate Case No. 188/64-65 was set aside in a regular proceeding because of non service of

notice upon Sachindra the certificate debtor and after setting aside the sale in the proceeding as aforesaid the subsequent transfer from Taheruddin onwards upto the plaintiff have been rendered invalid, therefore, the question of declaration of title in their favour on the basis of their registered transfer deeds does not arise at all. ...(50)

Limitation Act (IX of 1908) Section 28 No pleading no proof, the plaintiffs are not entitled to get a decree on the basis of adverse possession.

We have however noticed that the learned Joint District Judge decreed the suit in part on a gratuitous finding to the effect that the plaintiffs have acquired title over the suit land on the basis of adverse possession. Adverse possession was neither pleaded nor any evidence was lend by the plaintiffs. The plaintiffs have made a prayer to have a declaration of their title in the suit land by virtue of purchase deeds but adverse possession was neither pleaded nor proved , therefore, findings arrived at by the trial court is no doubt a gratuitous one which is not at all sustainable in law. In this connection Mr. Abdus Salam Mondal has rightly referred to a decision in a case where such a principle of law was laid down by our apex court in the case of Mohaprabhu Ram Vs Gopal Ram Ram reported in 42 DLR (AD) 154.

...(52)

Mahaprablu Ram Vs. Gopal Ram Ram, 42 DLR (AD) 154 ref.

Mr. Md. Abdus Salam Mondal with Mr. Surojit Bhattacharjee, Advocates.

...For the Appellants. Mr. Fazlul Hoq with Mr. M. C. Chowdhury, Advocates.

...For the Respondents.

Judgment

Nozrul Islam Chowdhury, J. This appeal at the instance of defendant

Nos.4-6, is directed against the judgment and decree dated 28.03.2000 passed by the Sub-ordinate Judge, now Joint District Judge, and Artha Rin Adalat, Sylhet in Title Suit No.43 of 1999, decreeing the suit.

I LNJ (2012) Nazir Ahmed and ohters Vs. Md. Fajal Ahmed and ohters. (Nozrul Islam Chowdhury, J.)

415

2. The respondents as plaintiffs instituted Title Suit No.43 of 1999(re-numbered) before the Joint District Judge, Artha Rin Adalat, Sylhet implead-ing the appellants along with others as defendants seeking a decree for declaration of title and for a further declaration that three kabalas one dated 18.11.1974 executed by Abdul Hashem in favour of Chand Miah the defendant No.1, registered kabla dated 02.12.1974 executed by Abdul Hashem in favour of defendant No.2 Raja Miah and registered kabala dated 30.03.1973 executed by Rosomoy Chandra Nath in favour of Abdul Hashem are forged ,fabricated, void and not binding upon the plaintiffs.

3. The plaintiffs brought the suit stating inter alia that some 1.13 acres of land covered by two S.S plots namely, 2088 and 2007 appertaining to Khatian No.1220 of mouza Kumargoan J.L No.18 originally belonged to Jogendra Mohantha and Mahananda Mahantha Sons of Paramananda Mahantha who having been in khas possession of the suit land sold the same in favour of Rosomoy Chandra by a registered kabala dated 16.06.1960 ; while Rosomoy Chandra was in possession and enjoyment of the suit land the same was put to auction owing to non payment of rent and eventually Certificate Case No.188/64-65 was initiated and upon conclusion thereof the suit land was sold in auction in due process; Taheruddin purchased the suit land in the said auction held on 29-10-64 and the said sale was made absolute and certificate was issued in favour of Taheruddin on 20.01.1965; Thereafter , Taheruddin sold the suit land in favour of Eshad Ali by a registered kabala dated 07.04.1975 who also sold the suit land to Raisa Bibi who got possession ; thereafter Raisa Bibi being in possession of the suit land sold the same in favour of Tullai Bibi in the year 1979 ; thereafter Tullai having been in possession of the suit land got her name mutated in the record of rights and eventually she gifted away the suit land to her son Moklis Miah by a deed of gift dated 20.11.1986 and upon taking over possession of the suit land Moklis Miah also got his name mutated in the record of rights in respect of the suit land; thereafter on 27.06.1992 Moklish Miah sold the suit land in favour of plaintiff Fazal

Ahmed and one Akbor Ali and had handed over possession ; Said Akbor ali subsequently sold his part of the suit land in favour of the plaintiff Fazal Ahmed , therefore, the plaintiff got his exclusive title in the suit land in the manner aforesaid and also got possession thereof.

4. Thereafter, the plaintiff made an attempt to get his name mutated in respect of suit land but it was found that the names of defendant Nos.1 and 2 had already been recorded in respect of the suit land although they had no right, title, interest or possession therein and upon query the defendant No.3 disclosed for the first time that the defendant Nos.1 and 2 had purchased the suit land from Abul Hashem by a registered kabala dated 18.11.74 in the name of Chand Miah the defendant No.1 and by another kabala dated 02.12.1974 in favour of defendant No.2 Raja Miah; and defendant No.3 made an attempt for sale of the suit land ; thereafter the plaintiff got information about the three kabalas as disclosed above which are dated 30.03.1973, 18.11.1974 and 02.12.1974 ; thus the cause of auction arose and the suit was filed seeking redress.

5. The defendant Nos.4-6 who are the appellants before us, got themselves added in the suit and upon filing written statement denied the material allegations made in the plaint contending inter alia that it is indeed Mohendra and Mahnanda Mohantha were the original owners of the suit land who infact sold the suit land in favour of Rosomoy Nath by a registered kabala dated 16.06.60 ; thereafter Rosomoy Chandra Nath sold the suit land in favour of Abdul Hashem on 30.03.1973 , meanwhile the original owners namely, Mahendra Chandra Mohantha and Mohananda Mohantha died leaving behind their sole heir Sachin Chandra Mohantha who was childless. It was asserted in the written statement that one Taheruddin who flashed his greedy eyes over the suit land and consequently at his instance a Certificate Case being No.188 of 1964-65 was initiated for realization of arrear rent in respect of suit land and in the said proceeding no notice was served upon Abdul Hashem as contemplated under section 7 of the Public Demand Recovery Act and eventually


Taheruddin purchased the suit land on 23.10.1`964 in the auction held in respect of the aforesaid certificate case. Thereafter Sachindra Mohontha, Rosomoy along with Abdul Hashem filed a joint application giving rise to Miscellaneous Case No.2 of 1973-74 with a prayer for setting aside the aforesaid sale and in the said Miscellaneous proceeding 2 of 1973-74 the Certificate Officer having heard both sides, allowed the same by his order dated 30.02.1974 setting aside the sale in auction held on 29.10.1964 in Certificate Case No.188 of 1964-65 as a result the kabalas in favour of Rosomoy Chandra Mahantha and subsequent kabala in favour of Abdul Hashem executed by Rosomoy remained valid and effective consequently Abdul Hashem having been in possession and enjoyment of the suit land sold .15 acres of land by a registered kabala dated 18.11.74 appertaining to S.S plot No.2007 as also .48 acres of land appertaining to S.S plot No.2088 totaling .63 acres of land out of the suit land in favour of defendant No.1 Chand Miah .Said Abul Hashem also sold .15 acres of land out of S.s plot No.2007 and 48 acres out of 2088 total .63 acres of land in favour of Defendant No.2 Raja Miah by a Registered kabala dated 02.12.1974.

6. In the process aforesaid the defendant Nos.1 and 2 entered into possession of the entire suit land in exercise of their right and title they also got their names mutated in respect of the record of right. It is also asserted in the written statement that in view of setting aside of the sale in auction in the Certificate Case as aforesaid the registered sale deed in favour of Taheruddin in the Certifi-cate Case was rendered invalid, therefore, subseq-uent purchases as claimed in the plaint from Taheruddin were also rendered invalid consequ-ently they did not acquire any right, title posses-sion and interest in respect of their alleged purchased land. The defendant Nos.1 and 2 are residents of London, therefore, they appointed one Manik Miah as their attorney empowering him to sell the suit land. The answering defendant Nos.4-6 purchased the suit land from appointed attorney of defendant Nos.1 and 2 by a registered kabala dated 22.05.98 at a consideration of Tk. 50,000/00 and after such purchase they have been in posses-

sion of the suit land in exercise of their right title and interest.

7. It was also asserted in the written statement that the plaintiff though admitted that Rosmomoy Chandra Nath was the owner of the land yet he was not impleaded as a party in the certificate case, therefore, no notice was served upon him in the said certificate proceeding and that the plaintiff brought the suit with false allegation as such the same is liable to be dismissed with costs.

8. Having taken up the suit for hearing the learned Joint District Judge framed as many as 6(six) issues including one to the effect as to whether the kabalas dated 18.11.74 and 02.12.74 are forged ,fabricated and sham paper transaction or not.

9. In the suit the plaintiff examined 10(ten) witnesses while the defendants adduced 8(eight) witnesses in support of their case and upon conclusion of the trial the learned Joint District Judge decreed the suit in part declaring right title of the plaintiff in the suit land by virtue of adverse possession. It may be mentioned that no decree was granted for setting aside the kabala as prayed for, by the learned Joint District Judge in his judgment and decree dated 28.03.2000 passed in Title Suit No.43 of 1999.

10. Having felt aggrieved by the aforesaid judgment and decree in part passed by the learned Joint District Judge the added defendant Nos.4-6 as appellants preferred this appeal.

11. Mr. Abdus Salam Mondal, the learned Advo-cate appearing for the appellants along with Mr. Surojit Bhattacharjee submits at the out set that the learned Joint District Judge having found that the plaintiff failed to prove their case in respect of allegation of forgery or fabrication of the docum-ent, did not pass any decree in favour of the plaintiff to that effect but the suit was decreed on a ground which is expressly extreneous to the proceeding.

12. Elaborating his submissions Mr. Mondal has pointed out that nowhere in the four corners of the plaint the plaintiff pleaded acquisition of title by adverse possession in the suit land, therefore,


417

no evidence was lead to that effect but the learned District Judge decreed the suit declaring title of the plaintiff by adverse possession. As a matter of fact the question of adverse possession was neither pleaded nor proved by the plaintiff; therefore, part decree granted by the impugned judgment is nothing but a gratuitous decree which is not permissible.

13. In support of his submission the learned Advocate for the appellant placed reliance in the case of Mahaprabhu Ram Vs. Gopal Ram Ram and others reported din 42 DLR (AD)154.

14. Mr. Mondal submits further that in view of setting aside of the sale in auction, purchase of the suit land by Taheruddin in the certificate proceeding having been rendered invalid the subsequent purchase deeds on the basis thereof don’t create any right title interest or possession in the suit land by virtue of their successive kabalas originating from Taheruddin , therefore, the plaintiff had acquired no right, title, interest or possession in the suit land consequently the decree in his favour as granted by the learned Sub-ordinate Judge is liable to be set aside .

15. Referring to the evidence on record Mr. Mondal submits that the plaintiff utterly failed in substantiating his claim that the kabala dated 18.11.1974 and 2.12.74 are either forged or fabricated or sham paper transaction. Therefore, question of decree in favour of the plaintiff as claimed does not arise at all. On the contrary, the evidence adduced by the defendants in support of their case emply prove that they have indeed acquired right, title, interest and possession in the suit land, therefore, the suit ought to have been dismissed as a whole.

16. Mr. Fazlul Hoq the learned Advocate appearing with Mr.M.C Chowdhury, submits that the evidence adduced by the plaintiff and the documents produced before the court if considered in their proper perspective warrant a decree in the suit not in part but as a whole.

17. Elaborating his submission the learned Advocat e has pointed out that the act of setting aside the sale in auction having been done by the

Circle Officer of the concerned Upazilla in the year 1974 it was without jurisdiction . Referring to the provision of Section 3(3) of Public Demand Recovery Act the learned Advocate for the respondents submits that at the relevant time it was the Sub-divisional Officer who were engaged as Certificate Officer and any order setting aside such sale ought to have been made by the Sub-divisional Officer alone and not by the Circle Officer as in the instant case. Referring to Section 22 and 23 of the Public Demand Recovery Act the learned Advocate for the respondents submits that at the time of initiation of the proceeding for cancellation of sale the applicant ought to have paid entire arrear rent in respect of the suit land otherwise the said application ought not to have been entertained even but in the instant case the defendant did not submit a scrap of paper to substantiate the position that in fact they had ever paid arrear of rent as contemplated under section 23 of the Public Demand Recovery Act, therefore, cancellation of sale in auction in favour of Abdul Bari was a nullity , therefore, the defendant did not acquire any right title interest in the suit land rather it is the plaintiff who had indeed acquired the same in respect of the suit land , therefore, the learned Joint District Judge ought to have decreed the suit as a whole.

18. The learned Advocate for the respondents referring to section 23 of the Public Demand Recovery Act submits that any proceeding for setting aside a sale ought to have been initiated within 60(sixth) days from the date of sale but in the instant case it is about 10(ten) years after the proceeding had been initiated and in consequence thereof the sale was set aside by the Circle Officer in utter dis-regard to the provision of law , therefore, the same is not sustainable. The trial court ought to have noticed this aspect of the case in refusing the decree in part.

19. With a view to appreciate the submissions made by the learned Advocate from both sides we have to consider the evidence to evaluate the extent to which each of the parties has proved his respective case and in doing so we find plaintiff P.W.1 Fazal Ahmed deposed that the suit land


originally belonged to Mohendra Chandra Mahanta and Mohananda Mohantha who owned and posse-ssed the same by inheritances and subsequently for arrear of rent Certificate Case No.188 of 1964-65 was initiated and after conclusion of the said case the suit land was put to auction whereupon Taheruddin purchased the same land in auction held on 29.10.64 and subsequently certificate was issued in favour of Taheruddin on 21.01.65 . Accordingly, possession was handed over in his favour and thereafter by successive devolutions on transfer by registered deeds one Ershad Ali purchased the suit land by a registered kabala dated 01.06.1966 and thereafter the suit land was also transferred from time to time from one man to another and ultimately to one Moklesh Miah who transferred the same in favour of the plaintiff and one Akbor Ali in equal share by a registered kabala in the year 1992. Thereafter Akbor Ali sold his part of the suit land in favour of the plaintiff by two registered kabalas in the year 1996 one in the month of May and other one in December. This P.W 1 produced all relevant documents of transfer which have been marked as Ext.1(Ka), Ext. 1(Kha), Ext.1(Ga) , Ext 1(gha), Ext.1(Uma), Ext.2, Ext.3, Ext.4 Ext.5, Ext.6, Ext.7, Ext.8, Ext.9, Ext.9(ka), Ext.9(Kha) and Ext.5(ka).The aforesaid Exts. also include the mutation khatian, the application for mutation, order passed in the Mutation Case, rent receipt, information slip showing that the auction was not set aside etc.

20. During cross-examination this witness admitted that the khatian in respect of which mutation was made by the plaintiff was in the name of Chand Miah and Raza Miah . This witness also admitted that he did not obtain any paper of the auction proceeding. This witness also denied that Sachin Chandra Mondal, Rosomoy and Abul Hashem jointly prayed for setting aside the auction sale. This witness also denied the suggestion that on 13.02.74 the auction sale was set aside. This witness also denied the suggestion that Taheruddin did not get possession by virtue of his auction purchase. This witness admitted that in the objection filed by the defendant Nos.4-6 in the temporary injunction matter it was claimed that

defendant Nos.4-6 purchased the suit land from Manik Miah.

21. P.W.2 Akbor Ali deposed as a plaintiff in the suit. He also admits that Mohendra and Mohan-anda were the original owners of the suit land. This witness also deposed in the same way as that of P.W.1. about the successive devolutions on transfer as well as on gift. This witness also claim-ed possession in the suit land by the plaintiff and he denies possession by the pefendant’s sides.

22. During cross-examination this witness adm-itted that he has not seen the papers relating to auction sale. This witness also denied the sugges-tion that the deed of transfer from Taheruddin on wards are sham paper transaction. This witness also asserted that the defendant Nos.1 and 2 got their names mutated on the basis of a forged deed.

23. P.W.3 Masuk Miah deposed that he knows Rosomoy Chandra Nath and his brother Lakhon who transferred some land to his maternal uncle and the said land was gifted in his favour by his maternal uncle by a registered deed bearing registration No.8693 of the 1989. The said registered deed has been produced. The photo copy of the said document has been produced and marked as Exts.Cha (with objection).

24. During cross-examination he admitted that Rosomoy had left for India.

25. P.W.4 Sree Lakhon Debnath son of late Ramananda Nath who deposed that his younger brother Rosomoy purchased the suit land from Mohendra and Mahananda Mohantha and after 1- 2 years of such purchase Rosomoy left for India .Thereafter he had been in possession of the suit and during war of liberation he also left for India and on returning back he found Ershad Ali was in possesison of the suit land who claims to have purchased the same in auction and his brother Rosomoy did not return back in this country. This witness also claims that Rosomoy left the document of his purchase to this witness Lakhon Deb Nath and on request this witness handed over the original document to Abdul Hashem for the purpose of setting aside the auction sale and the said document was not returned back to him


419

thereafter. This witness also testifies possession of the plaintiff in the suit land. This witness also admits that he did not go for any salish when Abul Hashem did not return back the documents. He does not know whether Rosomoy sold the suit land to Abul Hashem and there was no known person present when the document was handed over to Hashem. This witness denied the suggestion that he testifies falsely on payment. This witness expressed his ignorance about the setting aside of the auction sale. This witness denied the suggestion that Abdul Hashem, Rosomoy and Sachin Chandra jointly filed an application for setting side the auction sale. This witness denied the suggestion that he was deposing in the court being unduly influenced by Fazal Ahmed (plaintiff).

26. P.W.5 Sachin Chandra Mohontha deposed to the effect that the suit land originally belonged to his father Mohendra and his uncle Mohananda. He also testifies that Rosomoy Nath was the younger brother of Lokhon Chandra and one Taheruddin purchased the suit land in auction and that the plaintiff is the owner of the suit land who possess the same through Akbor Ali. He also admitted that he has no claim in the suit land.

27. During cross-examination this witness disclosed that he read upto primary level. This witness denied the suggestion that he along with Rosomoy and Abdul Hashem filed a joint application for setting aside the sale. This witness also denied the suggestion that in 1974 auction sale was set aside. This witness also admitted in his cross-examination that he got himself acquainted with Fazal Ahmed( plaintiff) in course of admission of his daughter in the school. This witness also denied the suggestion that he is deposing falsely in the case upon being unduly influenced by Fazal Ahmed (plaintiff)

28. P.w.6 is one Md. Osman Miah. This witness deposed that Moklis Miah being in possession, transferred the suit land in favour of Akbor Ali and Fazal Miah and the plaintiff Fazal Miah has been in possession of the suit land now he is the owner and Akbor Ali became a borgader. This witness also disclosed that he does not know whether Abdul Hashem ever purchased the suit

land and he does not know defendant Nos.4-6 have been possessing the suit land. He also denied that he is a tutored witness.

29. P.W.7 is one Abdur Rahman who testifies that he knows the suit land from 25 years before and at that time Masuk Miah was the owner of the suit land. Thereafter, Masuk Miah transferred to Akbor Ali and Fazal Miah and he did never see Abdul Hashem ever possess the suit land. This witness during corss-examination admitted that he lives in a place ¼ mile away from the suit land and he learnt from Moklish Mia and Akbor Ali that Muklish Miah was in possession of the suit land . This witness also admitted that Akbor Ali is his uncle but he denies the suggestion that he is a tutored witness and that Abdul Hashem is in possession of the suit land.

30. P.W.8 Mozahid Ali deposed that he purchased the suit land from Ershad Ali in the name of his wife Raisa bibi on 07.04.75 and he used to possess the suit land through Akbor Ali. Thereafter Raisa Bibi sold the suit land to Tulai Bibi mother of Muklish Miah.

31. During cross-examination this witness admitted that he possessed the suit land from Ershad Ali in 1975. This witness expressed his ignorance as to whether auction sale was set aside after his purchase. He also denied the suggestion that Ershad Ali was not in possession after his purchase. He also denied the suggestion that he did not ever get possession of the suit land. This witness also denied the suggestion that he is in the habit of purchasing disputed lands.

32. P.W.9 Taher Ali deposed to the effect that Akbor Ali has been in possession of the suit land for 20/22 years and he possess one part and bagidar on the other part and none else except Akbor Ali in possession of the suit land.

33. During cross-examination this witness deposed that he lives in a place ¼th mile away from the suit land. This witness also admits in his cross-examination that Fazal Miah asked him to depose in the case. He also denied the suggestion that he is a tutored witness. He expressed his


ignorance as to whether Taheruddin purchased the suit land in auction.

34. P.W.10 Denesh Chandra Debnath also deposed that Akbor Ali is in possession of the suit land and Fazal Miah posted pillar in the suit land and none else except Akbor Ali, Fazal Miah was found by him to be in possession. This witness during cross-examination admits that he lives in a place one kilometer away from the suit land and he does not know the plot number of his own land and he knows no plot number either . In cross-examination this witness admits that he does not know which land is covered by pillar posted by Fazal Mia and he does not know from whom Akbor Ali purchased the suit land. He also does not know who are the others in possession of the suit land, from his boyhood. This witness also denied the suggestion that he had no land contagious to the suit land and he does not know the suit land.

35. Defendant No.4 figured as witness No.1 for the defendants who deposed that defendant s 5-6 are his co -sharers who filed written statement jointly upon being added as defendants and he is deposing on behalf of defendants 5-6 as well. He also testifies that Mohendra and Mohananda were the original owners of the suit land who having been in possession thereof sold the same in favour of Rosomoy by registered kabala dated 116.06.1960, thereafter Rosomoy Nath sold the suit land to Abdul Hashem by registered kabala . He also deposed that Sachindra son of Mohendra became the Sole heir of two Mohanthas. This witness also testifies that after purchase by Abdul Hashem it was detected that Taheruddin once purchased the suit land in auction though no notice either upon Rosomoy or Abdul Hashem was ever served , record of right was in favour of Mohendra and Mohantha and on the basis of such record of right certificate case was proceeded and the auction took place. It was also deposed that Abdul Hashem , Rosomoy and Sachindra jointly initiated Miscellaneous Case No.2/73-74 for setting aside

the auction sale on the basis whereof, on 13.02.74 the auction sale was set aside. This witness also produced the certified copy of the order dated 13.02.74 passed in the said Miscellaneous Case No.2/73-74 and marked as Ext. Ka. This witness produced the certified copy of the application for setting aside the sale which has been marked as Ext.Kha. This witness testifies further that after setting aside the auction sale the subsequent title on purchase were rendered invalid, therefore, title of purchasers have extinguished and upon setting aside the auction sale Abdul Hashem entered into possession of the suit land .Thereafter, Abdul Hashem sold the same in favour of defendant No.1 and 2 by a registered kabla in the year 1974. The defendant Nos. 1 and 2 has been residing in London. Defendant No.3 is the father of defendant Nos.1 and 2 who is also a resident of London. Defendant Nos.1 and 2 executed a power of attorney for transfer of the suit land in favour of Manik Miah. the plaintiff wanted to purchase the suit land but he was not agreeable to pay the market price so he failed, therefore, Manik Miah sold the said land in favour of defendant Nos.4-6 by a registered kabala dated 22.05.1988 . The said document has been produced in the court and marked as Ext. Ga( with objection) . This witness also testifies that he had purchased the suit land at a consideration of Tk.5(five) lacs. The original deed of transfer was in custody of the seller so he handed over to the defendant Nos.4-6 which has been produced before the court and marked as Ext.Ga-1. The registered sale deed dated 30.03.1973 executed by Rosomoy in favour of Abul Hashem has also been produced before the court and marked as Ext.Ga-2 . Thereafter Abul Hashem sold a part of the suit land in favour of defendant No.1 by a registered kabala dated 18.11.74 which has been produced and marked as Ext.Ga-3. The said Abdul Hashem also sold other part of the suit land in favour of defendant No.2 by a registered kabala dated 01.12.74 which has been produced and marked as Ext.Ga-4 after purchase


421

the defendant Nos.1 and 2 Chand Miah and Raja Miah got their names mutated in respect of the suit land being suit plot Nos. 2007 and 2088. This witness also produced the rent receipt evidencing payment of rent. This witness also testifies that the document in favour of the plaintiffs are collusive paper transaction which were never acted upon.

36. During cross-examination this witness admitted that he reside in a place eight miles away from the suit land while defendant No.5 Imran Ahmed is a resident of a place 15-16 miles away. The defendant No.6 Ashis Kapali reside at 3 miles away from the suit land and he had seen the suit land for the first time one or two months before the date of their purchase. and they had no knowledge about the same earlier This witness also disclosed that he had no knowledge abut the case prior to his purchase .This witness also admitted that Akbor Ali is a resident of a place situated near to the suit land. This witness also disclosed that Abdul Hashem is no more. This witness also claims that the information slip filed by the plaintiff is a collusive paper. This witness also admitted in his cross-examination that record of Miscellaneous Case No.2-73-74 has not been called for. This witness denied the suggestion that there was no case initiated for cancellation of the auction sale .This witness also denied the suggestion that their document of purchase is forged one. This witness expressed his ignorance as to whether any heirs of Abdul Hashem is alive. This witness testifies that the document by which the suit land was purchased from Mohendra and Mohantha, was handed over to Manik Miah who handed over the same to this witness. This witness denied the suggestion that Abdul Hashem obtained the custody of the said document by practicing fraud .

37. D.W.2 Manik Miah deposed to the effect that he knows the plaintiff and the defendants as well as the suit land. This witness testifies that he purchased the suit land on behalf of Raja Miah and Chand Miah defendant Nos.1 and 2 and defendant

Nos.1 and 2 are his cousins by maternal uncle. This witness also produced the power of attorney executed in his favour by Chand Miah and Raja Miah defendant Nos.1 and 2. The said power of attorney was produced before the court as Ext. Gha. This witness also deposed that the plaintiff also wanted to purchase the ssuit land at a lesser price, therefore, land was sold to defendant Nos.4-6 at a consideration of Tk.5(five) lacs. This witness is the executant of the deed of transfer in fvour of defendant Nos.4-6 and also handed over possession. It is also deposed by this witness that defendant Nos.4-6 has been in possession of the suit land after their purchase.

38. During cross-examination this witness admitted that he reside at a place three miles away to the east of the suit land. This witness however could not disclose the boundary of the suit land. This witness denied the suggestion that there was no transfer or handing over possession of the suit land by him as alleged and that no consideration was passed.

39. D.W 3 Khalendra Chandra Nath is a witness residing at a distance of 500 yards from the suit land who testifies possession of the suit land by Abdul Hashem. He also testifies possession by Rosomoy prior to the transfer of the suit land in favour of Abdul Hashem. This witness also testifies that Manik purchased the suit land on behalf of Chand Miah and Raja Miah.

40. During cross-examination this witness reiterated possession of the suit land by Rosomoy and Manik Miah. This witness denied the sugge-stion that he was deposing upon being unduly influenced.

41. D.W 4 Kutubuddin is a deed writer of the deed in favour of Nazir Ahmed and others by Chand Miah and others who testifies that the attorney of Chand Miah is also executant of the deed and consideration was 5(five) lacs. He also testifies that it is a genuine deed. He knows Nazir Ahmed, Azad and others. This witness also


testifies during cross-examination that he witnessed passing of the consideration between the vendor and vendees and that the money was paid on behalf of Nazir Ahmed and others. This witness also testifies that the executant used the pen belonging to this witness D.W.4.

42. D.W 5 Md.Sultan Miah is also another deed writer of the registered deed dated 30.03.1973 executed by Rosmomoy Nath in favour of Abdul Hashem. He also disclosed that Rosomoy came to his office for the purpose of writing the said deeds. Thereafter, Rosomoy put his signature in his presence upon receipt of the consideration money. This witness also put his signature as a deed writer. This witness also disclosed during cross-examination that he used to know both Rosomoy and Abdul Hashem and that the consideration of Tk.5(five) lacs was received by the executant from the purchaser in his presence.

43. D.W 6 is Suruj Ali who is the resident of a place situated at a distance of 700 cubits from the suit land, who deposed in the same line as that of defendant No.1 in respect of the transfer from the original owners namely Mohonthas. He is a resident of the same locality where Rosomoy ,Abdul Hashem, Mohanandha used to live. He also testifies possession of the suit land by Abdul Hashen as also by Rosomoy and Chand Miah through Manik Miah. He also testifies that he did not see possession of the suit land by Taheruddin , Ershad Ali, Fazal Ahmed and Akbor Ali. This witness specifically disclosed the boundaries of the suit land. This witness denied the suggestion that he was deposing falsely.

44. D.W 7 is one Shamim Ahmed who testifies that he is a attesting witness of Ext.Ga the registered deed dated 22.06.98 in favour of Ashis Kapali and two other executed by Manik Miah. He knows the suit land situated at a distance of ¼ th miles from his house. He also testifies that the purchasers are in possession of the suit land but also disclosed in his cross-examination that the

purchasers were not known to him from before but it is Manik Miah who got himself acquainted with them. He also specifically mentioned the boundary men of the suit land. He denied the suggestion that he was deposing being unduly influenced.

45. D.W 8 is Taheruddin the auction purchaser of the suit land from whom the plaintiff claims to have purchased the suit land by away of successive devolution on transfer, deposed to the effect that he knows the plaintiff Fazal Ahmed , Nazir Ahmed, the defendants and the suit land. He also testifies that he had purchased the suit land in auction held in the auction Certificate Case No.188/64-65 and his purchase took place on 29.10.64, he received possession through papers and as a matter of fact he did not get possession of the suit land physically. He also deposed that he sold the suit land in favour of Ershad Ali. Thereafter he received the notice for correction of record of rights in the year 1973 but he did not turn up on receipt of the said notice, this witness also testifies that he was informed about the setting aside of the auction sale in the year 1974. Thereafter he did not take care of the suit land.

46. During cross-examination this witness disclosed that he used to know Earshad Ali from before but he did not go to the suit land physically and eight years after his purchase Earshad Ali informed this witness about the setting aside of the auction sale. This witness denied the suggestion that he was deposing being unduly influenced.

47. These are all about the deposition of the witnesses in a nutshell wherefrom it transpires that the plaintiff in this suit claims their title and possession over the suit land from Taheruddin D.W.8 the auction purchaser thereof held in Certificate Case No.188 /64-65 on 20.10.1964.

48. On the other hand, the defendants are claiming their title and possession in the suit land from Rosomoy Chandra Nath who also got the auction sale set aside in Miscellaneous Case


423

No.2/73-74 and thereafter by successive transfer the answering defendant Nos.4-6 are claiming their title and possession in the suit land who are as a matter of fact the appellants in this appeal.

49. From the materials placed before us and on consideration of evidence on record including the Exts. we find that the plaintiffs made desperate attempts to show that the auction sale in favour of Taheruddin in connection with Certificate Case No.188/64-65 was never set aside, therefore, they produced three information slip which have been marked as Exts. 9, Ext.9(Ka) and 9(Kha). On a perusal of these Exts. we find that the Assistant Commissioner of Land ( A.C Land) Sadar Sylhet in his information slip issued on 01.07.1998 disclosed that Miscellaneous Cases, in the year 1973-74 used to have been filed before the R.D.C Sylhet , therefore, no further information could be detected by this information slip which is Ext.9. The other information slip issued by A.D.C (Rev) Sylhet shows that a question put to them as to whether the records of Miscellaneous Case No.2/73-74 were available in the said office or not. The answer was given by the office as “bv ”. This information slip obtained by the plaintiff and marked as Ext.9 (Ka) is dated 09.08.98. It may be mentioned that we have already noticed from Ext.9 the information slip dated 01.07.98. That the record of the said Miscellaneous Case was available with the office of the R.D.C not with the A.D.C (Rev). The other information slip which is marked as Ext.9 (Kha) is dated 24.10.1988 obtained from the Officer-in-charge , Collect-orate ,Sylhet signed by the A.C (Land) disclosing to the effect that in his office the record of Miscellaneous case No. 2/73-74 is not available. Banking upon these Exts. the plaintiffs made an attempt to show that the very proceeding in Miscellaneous case No. 2/73-74 is non existent, therefore, the question of cancellation of sale in favour of Taheruddin does not arise but in apprec-iation of the aforesaid position disclosed by the plaintiffs we feel inclined to take notice of two Exts. marked as Exts. Ka and Kha certified copies of the order sheet of Miscellaneous Case dated 13.02.74 passed in Miscellaneous Case No. 2/73-74 and the application for setting aside sale

wherefrom it is evident that Sachin Chandra Mohantha and others were the applicants while Taheruddin was the opposite party. These certified copies were issued as back as on 09.04.74 long before the institution of the instant suit in the year 1997 which clearly shows that it was owing to non service of notice upon Sachinn Chandra Mohantha the only admitted heir of the admitted owners, the auction sale was set aside by the Certificate Officer in Miscellenous Case No.2/73-74.

50. On a perusal of Ext. (Kha) we find that the said application was filed jointly by three persons namely (1) Sachindra Chandra only heir of admitted owner (2) Rosomoy Chandra Nath and (3) Abdul Hashem against Taheruddin the auction purchaser, claimed by plaintiff side and that application was filed for setting aside of certificate sale took place in Certificate Case No. 188(S)/64-65 under section 23(2) of the Public Demand Recovery Act, 1913. Certified copy of that document was obtained as back as in the year 1974 while the instant suit was filed in the year 1997, therefore, long before the institution of the instant suit those two Exts. namely (Ka) and (Kha) were collected from the side of the defendants and on perusal of the Ext.Kha we find a clear averment made therein testifying the assertions made in the written statement filed by the defendants and the deposition of their witnesses made in the suit. Having given a look to those two documents with bear eyes those can not but be accepted as genuine ones and the question of fabrication of those documents for the purpose of the suit can not be raised at all. These are genuine documents evidencing the official act canceling the auction sale held in Certificate Case No.188/64-65 was done in due process. Since a presumption of genuineness of the said cancellation of auction sale is available under Section 80 of the Evidence Act and the said presumption has not at all be rebutted by the plaintiff’s, therefore, we can safely accept the position that the sale though held in the year 1964 in favour of Taheruddin in Certificate Case No.188/64-65 yet the same was subsequently set


aside in a regular proceeding in Miscellaneous Case No.2/73-74 brought by the three persons including one who is the sole heir of admitted owner, therefore, we have no hesitation to arrive at a finding that the auction sale in favour of Taheruddin in connection with Certificate Case No. 188/64-65 was set aside in a regular procee-ding because of non service of notice upon Sachindra the certificate debtor and after setting aside the sale in the proceeding as aforesaid the subsequent transfer from Taheruddin onwards upto the plaintiff have been rendered invalid, therefore, the question of declaration of title in their favour on the basis of their registered transfer deeds does not arise at all.

51. On a careful scrutiny of the Judgment of the trial Court we find that the trial court was of the opinion that the plaintiffs could not prove their case with respect to their claim of title by virtue of the two documents as pleaded by them in the plaint. We have also scrutinized the evidence and find no reason to differ with the learned Joint District Judge in respect of the finding arrived at to that effect.

52. We have however noticed that the learned Joint District Judge decreed the suit in part on a gratuitous finding to the effect that the plaintiffs have acquired title over the suit land on the basis of adverse possession. Adverse possession was neither pleaded nor any evedence was lend by the plaintiffs. The plaintiffs have made a prayer to have a declaration of their title in the suit land by virtue of purchase deeds but adverse possession was neither pleaded nor proved, therefore, findings arrived at by the trial court is no doubt a gratuitous one which is not at all sustainable in law . In this connection Mr. Abdus Salam Mondal has rightly referred to a decision in a case where such a principle of law was laid down by our apex court in the case of Mohaprabhu Ram Vs Gopal Ram Ram reported in 42 DLR (AD) 154.

53. Another glaring aspect of the case which has not been considered by the learned Joint District Judge in decreeing the suit, may be pointed out in

this connection and i.e Taheriddin has deposed in the case as D.W 8 and said Taheruddin is none but who claimed to have purchased the suit land in auction held in connection with Certificate Case No.188 of 64-65, this witness also, appearing before the court stated on oath that he in fact did not get physical possession of the suit land although he obtained possession through papers. This witness also admits that subsequently said auction sale was set aside. Therefore, we cannot but hold that the case of the defendants have been established by credible evidence although as a matter of fact in a civil suit the onus does not in any way lies the defendant to prove his case rather plaintiff is to prove his case and he cannot succeed on the weakness of the defendants. In this connec-tion we have reasons to differ with the Joint District Judge, holding that the plaintiffs have failed to prove their case on any count. As we have already mentioned that the learned Joint District Judge decreed the suit on an extraneous consideration which is not warranted under law.

54. For the purpose of disposal of this appeal we do not feel it necessary to go beyond which is necessary and vital, more particularly when we have noticed that the learned Joint District Judge also did not find any thing in favour of the plaintiffs except an err onions finding of adverse possession which we have elaborately dealt with in the foregoing paragraphs and on consideration of the evidence and materials we find no reason to differ with the other finding of the trial court in respect failure on the part of plaintiffs to prove this case .

55. In view of what has been discussed above, we find substance in the appeal. Accordingly, this appeal is allowed and the impugned judgment and decree dated 28-03-2000 passed by the learned Sub-ordinate Judge, Arthan Rin Adalat, Sylhet in Title Suit No. 43 of 1999 is hereby set aside.

56. Parties will bear their respective coasts.

Send down the lower court records with a copy of this judgment to the trial court forth with.

Ed.

The State Vs. Nowsha alias Nowser. (Syed Md. Ziaul Karim, J.) I LNJ (2012) 404

Evidence Act (I of 1872) Section 8 Since motive is not ingredient of offence prosecution is not bound to prove the motive of the accused for committing the crime. Motive does not play an effective role when premeditated and cold blooded murder is committed and established by irrefutable evidence. What is important is the nature of evidence and not the motive which may or may not be proved. None proof of motive cannot be a ground to discard the unimpeachable evidence. Proof of motive or previous ill feeling is not necessary to sustain conviction when court is satisfied that appellants are assailants of the victim, but once motive was setup it was to be proved by the prosecution beyond doubt and failure to furnish cogent and reliable evidence could lead to adverse inference against prosecution. Absence of motive is not ground for acquittal. Particularly when ocular evidence is reliable and corroborated by medical evidence. ...(50 to 52).

Penal Code (XLV of 1860) Section 307 and 34

There is no incriminating act of attempt to commit murder of wounded victim Kasem by accused Nannu and Hazrat Ali. PW-2 stated that accused Shamsu (since dead) and accused Ishak (since deceased) caught hold of his son Kasem and P.W. 3 Abul Kasem did not state any incriminat-ing evidence against the appellants in respect of attempt to commit him murder and other PWs merely heard the occurrence from PWs. 2 and 3. Therefore, there is absolutely no evidence against those appellants in respect of charge under Sections 307, 34 of the Penal Code. So their conviction and sentence cannot be sustained.

...(57)

Code of Criminal Procedure (V of 1898) Section 376 As to the sentence the learned Advocate for the condemned prisoner submits that there was no premeditation for murder so the sentence of death should be commuted. Regards being had to the facts and circumstances of the case the sentence of imprisonment for life will meet the ends of justice instead of death. ...(59)

PLD 1965 Lah. 656; 39 DLR 437; 33 DLR 274; AIR 1998 SC 107; 11 BLT 155; 40 DLR 58; 42 DLR (AD) 31; 10 MLR (AD) 175; PLD 2001 SC 339; PLD 2000 Kar 128; PLD 1999 Lah 56; AIr 2003 SC 3975; 57 DLR (AD) (2005) 75; 1968 Cr. LJ 1251; 7 MLR (2002) 119, 51 DLR 103; 1968 Cr.L.J. 962; Noor Md. Vs. State 1999 MLD (Pakistan Monthly Law Digest) 60 ref.

Mr. M. A. Mannan Mohan, D.A.G. with Mr. Md. Mahbub Ul Alam, A.A.G. Mr. Md. Osman goni, A.A.G. and Mrs. Nasima Khatun, A.A.G.

...For the State.

Mr. Bahar Uddin Al Razi, Advocate with Mr. Md. Abul Basher, Advocate

...For the Condemned Prisoner

And

Mr. Md. Alal Uddin, Advocate,

...For the Convict-Appellants.

Judgment

Syed Md. Ziaul Karim, J: This reference under Section 374 of the Code of Criminal Procedure (briefly as the Code) has been made by learned Additional Sessions Judge, fourth Court, in-charge, Dhaka for confirmation of death sentence of condemned-prisoner, who was convicted under Sections 302 and 307, 34 of the Penal Code and sentenced to death by hanging and rigorous imprisonment for five years and also to pay a fine of Tk.5,000/= in default to suffer rigorous imprison-ment for six months more respectively.

2. By the above Criminal appeal the appellants have challenged the legality and propriety of the judgment and order of conviction and sentence dated 12-04-2006 passed by learned Additional Sessions Judge, fourth Court, in–charge, Dhaka in Session Case no. 72 of 1999 convicting them under Sections 307, 34 of the Penal Code and sentencing each of them to suffer rigorous imprisonment for five years and also to pay a fine of Tk. 5,000/= each in default to suffer rigorous imprisonment for six months more.

3. This death reference and the above appeal having arisen out of a common judgment, these

I LNJ (2012) The State Vs. Nowsha alias Nowser. (Syed Md. Ziaul Karim, J.)

405

have been heard together and are being disposed of by this judgment.

4. Facts in brief are that Hazrat Ali a resident of Samair of P.S. Savar was a manufacturer of country made wine. The local youths by taking wine used to do illegal and unsocial acts. On protest of it local Union Parishad member Sadem Ali (P.W.1) brought the dish (f¡¢am) (used for manufacturing wine) from the house of Hazrat Ali. On 27-06-1992 at 8:00 p.m. accused Nowsa, Hazrat Ali, Shamsu, Nannu and Ishak(since deceased) and others happened at home of Sadem Ali (P.W.1) and asked to return the dish (f¡¢am). On its refusal by Lal Banu (P.W.2) and Kasem (P.W.3) wife and son of Sadem Ali respectively, the accused dragged out Kasem towards south west, Lal Banu (PW-2) followed them, accused Nowsa opened fire towards Kasem. Accused Ishak protested it by standing in front of Kasem but both of them were wounded by shooting. Later Ishak succumbed to the injuries at the spot and Kasem recovered after treatment. On alarm locals namely Aleya Khatun (P.W.6), Kadam Ali (P.W.4), Habib, Hanif, Mania Khatun and others rushed to the scene and heard the occurrence. With these allegation prosecution was launched by lodging a first information report (briefly as FIR) by Abdul Kader (P.W.8) maternal uncle of deceased Ishak which was recorded as Savar P.S. Case no. 40 dated 28-06-1992 corresponding to G.R. no. 242 of 1992.

5. The Police after investigation submitted charge sheet under Sections 302, 307,114 of the Penal Code accusing FIR named four accused namely Nowsa, Shamsul Haq, Nannu and Hazrat Ali. 6. During pendency of the case accused Shamsu alias Shamsul Haq died. Initially charge was framed on some erroneous facts. Later it was rectified to one under Sections 302 and 307, 34 of the Penal Code to which the accused on dock pleaded not guilty and clamed to be tried. 7. In course of trial the prosecution in all examined twelve witnesses out of thirteen charge sheeted witnesses and the defence examined none.

8. After closure of prosecution case, the accused on dock were examined under Section 342 of the Code, again they repeated their innocence and led no evidence in defence.

9. The defence case as it appears from the trend of cross-examination of the prosecution witnesses are that of innocence and false implication. It was divulged in defence that the deceased was murdered by unknown assailants and due to previous internal feud between them accused were falsely implicated out of vengeance by rivals.

10. After trial the learned Judge convicted the accused as aforesaid.

11. The learned Deputy Attorney General appearing for the State supports the reference and submits that P.Ws. 2 and 3 are the eye witnesses to the occurrence. They categorically narrated the occurrence which was corroborated by other prosecution witnesses. The learned Counsel lastly submits that the order of conviction and sentence is based on evidence on record which calls for no interference by this Court.

12. The learned Advocate appearing for the condemned-prisoner opposes the reference and submits that there are discrepancies between the inquest and time of occurrence as shown in FIR. He adds that virtually there was no eye witness to the occurrence and the conviction and sentence based on misreading and non consideration of the evidence on record.

13. The learned Counsel appearing the appellants submits that there is absolutely no evidence against the appellants Nannu and Hazrat Ali in respect of attempt to commit murder of wounded victim Kasem. So the prosecution failed to prove the charge in respect of appellants. He lastly submits that in the facts and circumstances of the case their conviction and sentence cannot be sustained in the eye of law.

14. In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.


15. Let us now weigh and sift the evidence on record as adduced by the prosecution to prove the charge.

16. P.W.1 Sadem Ali is the father of wounded victim Kasem and was union Parishad member at the relevant time. He deposed that on 27-06-2002 at 8:00 p.m. accused Nowser, Ishak, Nannu, Shamsu and Hazrat Ali came to his home in his absence. They abused him as he use to protest for manufacturing wine by Hazrat Ali and brought the dish used for preparation of wine. He heard the occurrence from his wife and son to the effect that accused Nowsa had a gun and they asked for dish, but his wife and son replied in negative. Later the accused dragged his son Abul Kasem towards south west and his wife followed them. Accused Nowsa pointed gun towards his son, on protest by Ishaq, accused Nowsa opened fire causing injuries to them. Accused Ishaq instantaneously died at the spot. On screaming by his wife locals rushed to the scene and the accused departed. Later his son was recovered after treatment.

17. In cross-examination he stated that on 28-06-1992 Police took his signature in inquest report. He denied the suggestion that due to previous enmity he was deposing falsely.

18. P.W. 2 Lal Banu is the mother of wounded victim Abul Kasem and wife of P.W.1. She deposed that on 27-06-1992 at 8:00 p.m. accused Nowsa, Hazrat Ali, Shamsu, Nannau and Ishaq came to their home in absence of her husband. Nowsa had a gun with him and they asked for dish. On their refusal accused dragged his son towards south west, She followed them. Accused Shamsu, Ishak caught hold of his son. Accused Nowsa attempted to open fire which was protested by Ishaq, despite of it accused Nowsa opened fire causing injuries at the ear of his son and neck of Ishak. Both of them fell down. Ishak died at the spot. On her alarm locals rushed to the scene. His son recovered after treatment.

19. In cross-examination she stated that the occurrence took place in her presence. She narrated the occurrence to her husband Sadem Ali.

She denied the suggestion that she knew nothing about the occurrence.

20. P.W. 3 Abul Kasem was the wounded victim of the case. He deposed that on 27-06-1992 at 8:00 p.m. accused Nowsa, Ishaq, Samsu, Nannu and Hazrat Ali came to their home in absence of his father, of them accused Nowsa carried a gun, they asked for the dish. On their refusal the accused dragged him towards south west, his mother followed him. Accused Nowsa pointed gun to him, despite of protest by accused Ishak. Accused Nowsa then opened fire which caused injuries to his ear and on neck of Ishak. Both of them fell down and Ishak died on the spot. On alarm raised by his mother locals rushed to the scene and accused departed.

21. In cross-examination he stated that they had no enmity with the accused. On 28-06-1992 he made statement before the Police. He denied the suggestion that he did not receive any injury and deposing falsely.

22. P.W.4 Kadam Ali a local witness. He deposed that on 27-06-1992 at 8:00 p.m. he heard from the mother of Kasem that accused Nowsa, Shamsul Haq, Hazrat Ali, Nannu opened fire to his son and Ishak. Ishak died on the spot.

23. In cross-examination he stated that he did not see the occurrence. He denied the suggestion that he had no knowledge about the occurrence and deposing falsely.

24. P.W.5 Salma Khatun wife of deceased. She deposed that accused Nowsa, Shamsul Haq, Nannu and Hazrat Ali murdered her husband by shooting.

25. In cross-examination she denied the suggestion that the accused did not murder her husband and deposing falsely.

26. P.W. 6 Alaya Khatun FIR named local witness. She deposed that he heard the occurrence from the mother of Kasem that accused Nowsa, Shamsul Haq, Hazrat Ali, Nannu murdered Ishak by shooting.

27. In cross-examination she stated that she did not see the occurrence but heard the incident from the mother of Abul Kasem.


407

28. P.W.7 Dr. Md. Rafiqul Bari. He deposed that he held autopsy upon the cadaver of Ishaq and found the following injuries:

Ò 1| Wvb ey‡K Dc‡ii As‡k, Mjvi bxP As‡k 4Ó * 2Ó Cavity deep hvnvi wKbviv Agm„b †cvov I Pzj †cvov|

MwZc_t- mvg‡b nB‡Z wcQ‡b MwZc‡_ Wvb cervical nvo I Wvb cuvR‡ii nvW 1-3 ch©šÍ Pzb© wePzb© I Wvb I Wvb dzmdz‡mi Dc‡ii †jvc wQbœ wfbœ cvIqv †Mj| ey‡Ki wfZi RgvU I Zij i³ cvIqv †Mj| ÿ‡Zi wfZi nB‡Z 3wU KvW©IqvW© (GKwU fvswMqv 3 UzKiv nIqv I 20 wU Pellet i³ gvLv Ae ’vq cvIqv †Mj hvnv jvk enbKvix Kbóej 109 †gvt iwdKzj Bmjv‡gi wbKU n¯ÍvšÍi Kiv nBj| D‡jøwLZ RL‡gi ’v‡b g„Zy c~e©K msK‡Ui wPý we`¨gvb|

gZvgZt Avgvi n‡g GB g„Zz¨ D‡jøwLZ ¸wj we× (short gun) RL‡gi d‡j i³cv‡Zi Kvi‡b m„ó œvqy hvnv ˆeKj¨ m¤úbœ hvnv g„Zz c~e©K I nZ¨vRwbZ|

29. He proved the post mortem as Exhbt. 1 and his signature on it as Exhbt. 1/1.

30. In cross-examination he stated that on examination he found the above injuries.He denied the suggestion that he submitted a perfunctory report at the influence of informant.

31. P.W.8 Abdul Quader, is the informant. He deposed that deceased Ishak was his sister’s son who was murdered at the house of Sadem member sustaining shooting at neck. He heard the occurrence to the effect that accused Nowsa, Smamsu,Hazrat Ali and Nannu were present at the P.O. and Nawsha opened fire. He lodged the FIR. He proved the same as Exhbt. 2 and his signature on it as Exhbt . 2/1.

32. In cross-examination he stated that he did not see the occurrence. He denied the suggestion that he was deposing falsely.

33. P.W.9 Md. Sirajul Islam and P.W.10 Md. Yusuf Ali were the witnesses of inquest report, of whom P.W.9 proved the inquest report as Exhbt. 3.

34. P.W.11 was the local seizure list witness. He deposed that the Police seized one lamp (L¥¢f

h¡¢a), blood stained earth, and some grass in his presence and prepared seizure list. He proved the same as Exhbt. 4 and his signature on it as Exhbt. 4/1.

35. He proved the seized materials as (Mat. Exhbt. i-iii).

36. In cross-examination he stated that on the following day of occurrence he went to the P.O. He did not see wherefrom the blood stained earth was collected.

37. P.W.12 S.I. Sheikh Ali Ahmed was the investigating officer of the case. He deposed that on 28-06-1992 he was attached as S.I. in Savar Police Station. The case was entrusted to him for investigation. He visited the P.O. held inquest upon the cadaver and prepared report. He sent the cadaver to the morgue for post mortem examination. He prepared sketch map and index.He proved the same as Exhbts. 6 and 7 respectively. He also seized blood stained earth along with grass. He recorded the statements of the witnesses under Section 161 of the Code. After investigation he submitted charge sheet accusing aforesaid four accused.

38. In cross-examination he stated that he had no knowledge who has written the FIR. He denied the suggestion that he held perfunctory investigation and submitted a report on the basis of such investigation.

39. These are all of the evidence on record adduced by the prosecution to prove the charge.

40. It is indisputable that slain Ishak was lynched and Kasem (PW-3) was wounded by shooting.

41. On going to the materials on record, it transpires that the prosecution in all examined twelve witnesses, of them P.Ws.1,4,5,6,8,9 and10 are the local witnesses who heard the occurrence. P.Ws. 2 and 3 witnessed the occurrence. P.W. 7 held inquest report upon the cadaver and P.W.12 investigated the case and submitted charge sheet.

42. It is pertinent to point out that the prosecution case absolutely rest upon the evidence of eye witnesses P.W.2 Lal Banu and her son


P.W.3 Abul Kasem, other local witnesses were examined to corroborate their evidences. P.W. 2, Lal Banu mother of victim Abul Kasem(P.W.3) categorically stated that on 27-06-1992 at 8:00 p.m. accused Nowsa, Hazrat Ali, Shamsu, Nannu and Ishak happened at their home in absence of her husband who asked for dish(use for preparation of country made wine). On their refusal the accused dragged her son (P.W.3) toward south west, she followed them wherein accused Shamsu and Ishak caught hold of his son and accused Nowsa opened fire despite of protest of accused Ishak, causing injuries to the ear of his son and neck of Ishak. Both of them fell down and Ishak instantaneously died at the spot. However his son Kasem recovered after treatment. On her screaming locals rushed to the scene and heard the occurrence. P.W.3 Abul Kasem, was the wounded victim. He categorically corroborated the evidence of P.W.2 to the effect that he received injuries at ear and Ishak at neck. Later Ishak died at the spot, other locals namely P.W. 1, 4, 5, 6 heard the occurrence from P.Ws.2 and 3 corroborated their evidence. P.W.7, held autopsy upon the cadaver of deceased Ishak. The injuries ascertained by him provided corroboration to the ocular evidence of P.Ws.2 and 3.

43. Therefore, we find that the evidence of all prosecution witnesses are consistent uniform and corroborative with each other with all material particulars, particularly shooting to Kasem (PW-3) and deceased Ishak. There is absolutely no reason to disbelieve the consistent and corroborative evidence of those competent witnesses, having no reason whatsoever to depose falsely against them. The defence extensively cross-examined them but nothing could be elicited to shake their credibility in any manner whatsoever. So the same are invulnerable to the credibility.

44. We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.

a) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.

b) The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.

c) In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.

d) There must be clear and unequivocal proof of the corpus delicit.

e) The hypothesis of delinquency should be consistent with all the facts proved.

45. Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.

46. From the materials on record we find that the condemned-prisoner along with other accused being enlarged on bail remained absconding during trial. However, subsequently appellants Nannu and Hazrat Ali appeared and faced trial but condemned-prisoner remained absconding during trial. Abscondence of an accused is an incriminating circumstances connecting him in the offence and conduct of a person in abscondence after commission of crime is an evidence to show that he is concerned in the offence (Vide PLD 1965 Lah. 656). Therefore, anything, which tends to explain his conduct and furnishes a motive other than a guilty conscience, will be relevant under the Evidence Act. Failure to explain reason for absconding after occurrence fovours prosecution (39 DLR 437). Abscondence of accused is a relevant fact. Unless accused explain his conduct, abscondence may indicate guilt of accused (33 DLR 274). Where accused absconded immediately after occurrence and remained out of reach of hand of law for more than years without showing any convincing reason for his absence, it would be an important factor going against absconder accused (AIR-1998 SC-107). Abscondence immediately after incident and also after being enlarged on bail


409

his trial in absentia and abscondence till today is a strong incriminating circumstances while can be considered sufficient corroboration of his participation in commission of crime(11 BLT 155).

47. The credit to be given to the statement of a witness is a matter not regulated by rule of procedure, but depends upon his knowledge of fact to which he testifies his disinterestedness, his integrity and his veracity. Apportion of oral evidence depends on such variable in consistence which as a human nature can not be reduced as a set formula (40 DLR 58).

48. The weight to be attached to the testimony of witness depends in a large measure upon various consideration some of which are in the face of it his evidence should be in consonance with probabilities and consistent with other evidence, and should generally so fit in with material details of the case for the prosecution as to carry conviction of truth to a prudent mind. In a word evidence of a witness is to be looked at from point of view of its credibility, it is quite unsafe to discard evidence of witness which otherwise appears reasonable and probable because of some suggestion against truthfulness of the witness.

49. Evidence of close relations of the victim cannot be discarded more particularly when close relations does not impair the same. Straightfo-rward evidence given by witness who is related to deceased cannot be rejected on sole ground that they are interested in prosecution. Ordinarily close relation will be last person to screen real culprit and falsely implicate a person. So relationship far from being ground of criticism is often a sure guarantee of its truth (40 DLR 58).

50. Since motive is not ingredient of offence prosecution is not bound to prove the motive of the accused for committing the crime (42 DLR(AD)31; 10 MLR(AD)175}.

51. Motive does not play an effective role when premeditated and cold blooded murder is committed and established my irrefutable evidence. What is important is the nature of evidence and not the motive which may or may not be proved. None

proof of motive cannot be a ground to discard the unimpeachable evidence ( PLD 2001 SC 333}.

52. Proof of motive or previous ill feeling is not necessary to sustain conviction when court is satisfied that appellants are assailants of the victim, but once motive was setup it was to be proved by the prosecution beyond doubt and failure to furnish cogent and reliable evidence could lead to adverse inference against prosecution (PLD 2000 Kar 128). Absence of motive is not ground for acquittal (PLD 1999 Lah 56). Particularly when ocular evidence is reliable and corroborated by medical evidence (AIR 2003 SC 3975). Appellate Division repeated the same view { 57 DLR(AD)(2005)75).

53. When offence proved motive is immaterial. Weakness of the motive alleged, though a circumstances to be taken into account, cannot be a ground for rejecting the direct testimony of ocular witness which is otherwise of a reliable character. If the offence has been satisfactory proved by direct evidence than it is immaterial as to whether the motive has been established or not (1968 P Cr. LJ 1251). 7 MLR(2002)119. If there is no sufficient direct evidence motive may be matter for consideration specially when the case is based on circumstantial evidence (51 DLR 103).

54. Motive is a matter of speculation for what moves a person to take the life of another is within his special knowledge and does not constitute a necessary ingredient of the offence of murder,(1968 Cr.LJ 962).

55. In the case of Noor Md. Vs. State 1999 MLD (Pakistan Monthly Law Digest) -60 held:

“Eye witnesses were natural witnesses of the occurrence who had not only furnished convincing account of incident in details, but had also withstood hard test of cross-examination successf-ully- No rancour had been ascribed to appellant-Relationship of eye witnesses with the deceased was not by itself sufficient to discredit their testimony – Record did not indicate any sign to


support the idea of substitution of accused with real culprit, if any- ocular account was fully supported by medical evidence and attending circumstances-conviction of accused was upheld in circumstances.

In the case of Md. Azeem Vs. State 1998 Pakistan Criminal Law Journal-175 held:

Eye–witnesses who had no ill-will or motive against the accused had plausibly explained their presence at the spot and had corroborated their version given in their statements before the police-Ocular testimony was not in conflict with medical evidence- Prosecution had, thus, proved its case against accused beyond doubt- Conviction and sentence of death awar-ded to accused by trial Court were confirmed in circumstances

56. Therefore, we find that the prosecution successfully proved the charges against the condemned prisoner Nowsa beyond all reasonable doubt.

57. After appraisal of the evidence on record we failed to discover any incriminating act of attempt to commit murder of wounded victim Kasem by accused Nannu and Hazrat Ali. PW-2 stated that accused Shamsu (since dead) and accused Ishak (since deceased) caught hold of his son Kasem and P.W. 3 Abul Kasem did not state any incrimin-ating evidence against the appellants in respect of attempt to commit him murder and other PWs merely heard the occurrence from PWs. 2 and 3. Therefore, we hold that there is absolutely no evidence against those appellants in respect of charge under Sections 307, 34 of the Penal Code. So their conviction and sentence cannot be sustained.

58. In the light of discussions made above and the preponderant judicial views emerging out of the authorities referred to above, we are of the

view that the prosecution successfully proved the charges against the condemned prisoner beyond all reasonable doubt.

59. As to the sentence the learned Advocate for the condemned prisoner submits that there was no premeditation for murder so the sentence of death should be commuted. Regards being had to the facts and circumstances of the case we are of the view that sentence of imprisonment for life will meet the ends of justice instead of death.

In the result:-

(A) Death reference no. 31 of 2006 is rejected. The impugned Judgment and order of conviction and sentence dated 12-04-2006 passed by learned Additional Sessions Judge, fourth Court, in-charge, Dhaka, in Session Case no. 72 of 1999 so far as it relates to condemned prisoner Nowsa is maintained with a modification of sentence to imprison-ment for life instead of death under Section 302 of the Penal Code and conviction and sentence under Sections 307, 34 of the Penal Code is also maintained, both the sentences shall run concurrently.

B) The impugned judgment and order of conviction and sentence so far as it relates to the appellants Nannu and Hazrat Ali is set aside and they are acquitted from the charge and discha-rged from their respective bail bond.

C) Accordingly the Criminal appeal no. 2083 of 2006 is allowed.

The Office is directed to send down the records at once.

Ed.

I LNJ (2012) Kabir Ahmed and others Vs. Sultan Ahammed and others. (Sharif Uddin Chaklader, J.)

397


Mr. Sharif Uddin Chaklader, J..

And

Madam Krishna Debnath, J.

Judgment 10.04.2012

}

}

}

Kabir Ahmed and others

...Appellants.

Vs.

Sultan Ahammed and others.

...Respondents

Code of Civil Procedure (V of 1908) Order VII, rule 11 Order XIV, rule 2 The plaint can be rejected under Order VII, rule 11 of the Code, only referring to the statements made in the plaint but not on defence materials. In the cited decisions it has been held that plaint cannot be rejected on the ground of resjudicata, learned judge committed gross illegality in rejecting the plaint on the ground resjudicata. However, special issue can be framed under Order XIV, rule 2 of the Code for a decision. ..(19 &20)

Code of Civil Procedure (V of 1908) Order XIV, rules 1 and 2 No issue having been framed as to identity of plaintiffs paternity the findings that plaintiffs have no locus standi to challenge the decree as they are not the heirs of Mehernigar and Mehe-rnigar was the daughter of Ashraf Ali are not sustainable. Unless an issue is framed no one is bound to prove such fact. ...(35).

Code of Civil Procedure (V of 1908) Section 24 It is contended on behalf of the petitioners that the subject matter of Title Execution Case No. 02 of 2002 and the subject matter of Title Suit No. 09 of 2005 being identical, it is necessary to hear by one court , otherwise the same might have ended in conflicting decision. Accordingly, the High Court Division was pleased to direct that the Title Execution Case and the Title Suit be disposed of by same Court. ...(40 & 42)

*First Appeal No. 123 of 2008 with Civil Revision No. 3227 of 2006 with Civil Revision No. 3256 of 2005.

Mahbubul Haque (Md) vs. Md. A. Kader Munshi, 52 DLR(AD)-49; Shawkat All Chowdhury vs. G. Murshed Reza and others, 7 Law Guardian-24; Nurul Islam Chowdhury vs. Morshed Alam and others, 1 LNJ (AD)-3; Chief Engineer , Roads and Highways Department vs. Concord Engineers and Constitution Ltd, 48 DLR 243; Jahura Bibi and others vs. Mr. Habibur Rahman and others, 15 BLD 519; All India Reporter Limited, Bombay vs. Ramachandra Dhordo Dater, AIR 1861 (Bom) 292; Secretary of State vs. Golabrai Paliram, AIR 1932 (Cal.) 146 and ILR 34 (Bom) 250; Shafi A Chowdhury vs. Pubali Bank Ltd. and others, 54 DLR-311; Abdul Malek Sowdagar vs. Mahbubey Alam, 57 DLR (AD) 18; Mohammad Ali vs. Lt. Col. (Retired) Habibullah Bahar and others, 58 DLR (AD) 245=26 BLD (AD) 273 ref.

Mr. Syed Mokaddas Ali, Advocate ...For the appellants

Mr. Tajul Islam Miajee, Advocate ...For the respondent Nos. 1-21, 22(ka) to 22

(Chha)

Judgment

Sharif Uddin Chaklader, J. All these 3 matters as per order of a Division Bench of this Court was directed for analogous hearing but in fact, these 3 items arisen from three separate cause of action as such are dealt with separately.

2. Appeal From Original Decree No. 123 of 2008 by the plaintiffs directed against judgment and decree dated 9.10.2007 passed by the learned Joint District Judge, 3rd Court, Comilla rejecting the plaint of Title Suit No. 9 of 2005.

3. Plaintiffs instituted the aforesaid suit for partition with further declaration that preliminary decree dated 15.03.1999 and final decree dated 08.07.2001 passed by the learned subordinate judge, 2nd Court, Comilla in Title Suit No. 61 of 1983 are not enforceable with further prayer for staying the proceeding of Title Execution Case No. 2 of 2002.

4. It is the case of the plaintiffs that Eakub Ali possessed 1.261

2 decimals of land from schedule No. l and also owner of schedule No.2 land, died

Kabir Ahmed and others Vs. Sultan Ahammed and others. (Sharif Uddin Chaklader, J.) I LNJ (2012) 398

leaving 2 sons, Asrab Ali and Altab Ali, who possessed 1.261

2 decimals of land from 1st schedule, 88 decimals of land from 2nd schedule, in total 2.141

2 decimals of land. Each brother

possessed 1.714 acres of land. While they were

possessing of their respective lands, Asrab Ali died leaving 3 sons, defendant No.27, Humayun Kabir, defendant No. 26, A. Sobhan and father of defendant Nos.31 and 32, A. Majid, 3 grand sons defendant Nos. 28-30 and Mehernigar and 4 daughters, each daughter got 1

10 th portion of land

left by their father, which counts in total 10 2940

decimals of land. Mehernigar possessing from both schedule. Meharnigar died leaving behind plaintiffs Nos. 1-4 as sons and plaintiffs Nos. 5 and 6 as daughters, defendant No. 98 as husband. Plaintiffs came to know that defendant Nos. 1-23 obtained decree for partition, as such, they can take possession of the suit land. Plaintiffs were in dark about the suit and after getting definite knowledge of the decree, filed the suit for partition.

5. Defendant No. 1-21, 22(ka)-22(cha) and 23 appeared in the suit and filed application for rejection of the plaint on the ground that suit was instituted by suppressing the fact as Title Suit No.61 of 1983 was decreed for partition on contest by the plaintiffs, against which, plaintiffs filed Title Suit No.45 of 2002 in the Court of Senior Assistant Judge, Chouddagram, which was dismissed and decree was affirmed against which Title Appeal No.60 of 2005 was preferred by the plaintiffs before the appellate Court; the suit is barred by resjudjcata. By the impugned judgment, learned judge rejected the plaint holding that the suit is barred by resjudicata. In rejecting the suit, learned Judge found interalia that:-

ÒìLv¯ÍKvix weev`xcÿ †`s 45/02 Ges †`s Avcxj 60/2005 bs gvgjvi ivq wWµxi mBgyûix bKj `vwLj K‡i‡Pb| D³ mBgûix mKj Ges eZ©gvb AviRx ch©v‡jvPbvq cÖZxqgvb nq| ev`x eZ©gvb gvgjvwU e›U‡bi cÖv_©bvq `v‡qi K‡ib|

‡Ìqvbx 61/83 bs gvgjvq ivq/wWµxi êaZvi welqwU PzovšÍfv‡e wb®úwË n‡q Avcxj Av`vjZ KZ©„K envj _vKvq Ges Dfq gvgjvq eZ©gvb ev`xbN ev`x wn‡m‡e AšÍf©~³ _vKvq eZ©gvb gvgjvq †`s 61/83

bs gvgjvi wel‡q cÖv_©xZ cÖwZKvi w` †KvW Ae wmwfj Gi †mKkb 11 Abyhvqx †`veviv †`v‡l (†miRywWKvZv) evwiZ|

‡Ìqvbvx 45/02 bs gvgjvi bw_ ch©v‡jvPbvq cÖ_xqgvb nq, D³ gvgjvi weÁ wePvwiK Av`vjZ Dfq c‡ÿi mvÿ¨ ch©v‡jvPvbq †g‡ni wbMvi‡K AvkÖvd Avjwi Kb¨v wn‡m‡e ev`xi `vex cÖgvwbZ nqwb g‡g© wm×všÍ cÖ`vb K‡ib Ges ev`xMY †g‡ni wbMv‡ii Iqvwik wn‡m‡e bvwjkv fzwg Avbv‡i ¯^Z¡ ¯^v_© AR©b K‡ibwb g‡g© mve¨¯’ K‡ib|

envj _vKvi Ges D³ Avcx‡ji iv‡qi weiæ‡× gnvgvb¨ D”P Av`vj‡Z †Kvbiæc cÖwZKvi cÖv_©bv bv nIqvq, eZ©gvb gvgjvi GKB welq cybivq wePvi I wm×všÍ MÖn‡Yi my‡hvM †bB| ev`xi ewY©Z ev`xwUI ‡Ìqvbx 45/02 bs gvgjvi wm×všÍ Øiv †`veviv †`v‡l evwiZ|Ó

6. Syed Mokaddes Ali, learned Advocate appearing for the plaintiffs-appellants, submits that, it is settled principal of law that plaint of the suit cannot be rejected on defendants plea. Learned Advocate further submits that plaint cannot be rejected on the ground of res-judicata and also submits that some of the findings arrived at by the learned trial judge in fact require evidence to settle the dispute as such the impugned judgment is liable to be set aside, Learned Advocate relied on the decision of Mahbubul Haque (Md) vs. Md. A. Kader Munshi, 52 DLR(AD)-49, the case of Shawkat Ali Chowdhury vs. G. Murshed Reza and others, 7 Law Guardian, 24 also the case reported in new publication law report, i.e. Nurul Islam Chowdhury vs. Morshedul Alam and others, I LNJ (AD)-3. Crux of all these decisions that a plaint cannot be rejected on the ground of limitation as well as on the ground of resjudicata as these are mixed question of law and fact.

7. Mr. Tajul Islam Miajee, learned Advocate, appearing for the respondents, on reference to the judgment passed by the learned Joint District Judge, submits that, plaintiffs earlier filed suit against the decision of the partition suit and that suit was dismissed upto appellate forum and relief claimed being similar, learned judge committed no illegality in rejecting the plaint on the ground of resjudicata. Learned Advocate


399

relied on the case of Chief Engineer Roads and Highways Department vs. Concord Engineers and Construction Ltd., 48 DLR-243 wherein it is settled that a plaint is liable to reject where the suit appears from the statement in the plaint to be barred by any law.

8. In the instant case plaintiffs instituted the suit with two prayers, one for partition and another for declaration and for setting aside the judgment and decree obtained in Partition Suit No.61 of 1983 from the Court of Subordinate Judge, 2nd Court Comilla.

9. It appears from the judgment and findings mentioned herein above that learned Judge did not at all go through the plaint itself rather it appears that learned judge rejected the plaintiff holding it barred by resjudicata on the defense materials.

10. Order VII Rule 11 of the Code of Civil Procedure speaks that:-

The plaint shall be rejected in the following cases:-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is under valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be bared by any law.

11. If we gathered from the application filed by the defendants for rejection of the plaint that it attract Rule 11 Order VII of the Code of Civil Procedure on the ground of resjudicata but on reference to the plaint we do not find such type of

statement by which it can be said plaint is barred by any law.

12. In the case of Shawkat All Chowdhury vs. G. Murshed Reza and others, 7 Law Guardian-24, on reference many of the decision held that plaint cannot be rejected on the ground of resjudicata as it is mixed question of law and fact .

13. In the case of Jahura Bibi and others -vs- Mr. Habibur Rahman and others, 15 BLD 519, where it has been held in as much as from the statements made in the plaint the said suit does not appear to be barred by limitation.

14. In the case of All India Reporter Limited, Bombay -vs- Ramachandra Dhordo Dater, AIR 1861(Bom)292 where the question arose whether the plaint can be rejected when there is irregularities in the plaint, i.e. if the plaint is not properly signed or verified, it has been held that "In this case it is necessary to note that order VII Rule 11 which refers to the rejection of a plaint, enumerates only four cases in which a plain has to be rejected, but it does not enumerate any of the defects or irregularities referred to in order VI rule 14, order VI rule 15 or order VI rule 2.

15. In the decision of Secretary of State - Defendant – Appellant -vs- Golabrai Paliram-Plaintiff-Respondent, AIR 1932 (Cal.) 146 and ILR 34 (Bom) 250. The Firm of Gunnaji Bhawaji -vs- Makanji Khoosalchand and others Respondents and Defendants it has been held that where a plaint appears to be barred by limitation and no ground of exemption from limitation is mentioned therein the Court may in proper cases allow an amendment of the plaint under order VI rule 17 of the Code of the Code so as to make a plea of exemption, if any.

16. In the case of Shafi A Chowdhury vs. Pubali Bank Ltd. and others, 54 DLR-311 it has been held that an issue of resjudicata can not be resolved in disposing of a petition under clause (d) of rule 11 of order VII of the Code, because in rejecting a plaint under the said provision, the Court cannot travel beyond the four corners of the plaint. The concluding portion of this judgment give a guideline for disposing of an application under order VII rule 11 of the Code of Civil


Procedure and I am tempted to quote the same:-

“44. Before parting with the case I would like to observe that whenever a learned Judge is confronted with a petition to reject a plaint he must first assume that the plaint was legally filed, unless that defendant persuades him to hold that the plaint is liable to be rejected in limini under order VII rule 11 of the Code. In dealing with such a petition he should not be unnecessarily hasty, rather act judiciary in considering the plaint,"

17. In the case of Abdul Malek Sowdagar vs. Mahbubey Alam, 57 D.L.R (AD) 18 it has been held that "the question as to whether the plaint is liable to be rejected being barred by law, must be apparent from the statement made in the plaint itself and not from that written statement or any other materials other than that has been put in the plaint. Thus this provision applies when it appears from the statement in the plaint that suit is barred by any law either due to limitation, resjudicata or barred by law providing ouster of the jurisdiction of the Court."

18. In the case of Mohammad Ali vs. Lt. Col. (Retired) Habibullah Bahar and others, 58 DLR (AD) 245=26 BLD (AD) 273 it has been held that "on consideration of the facts and circumstances we hold that, the bar of section 56(k) of the Specific Relief Act non-production of document under rule 14 of order VII has no manner of application in considering petition under order VII rule 11 of the Code Nor on point of maintainability of the suit, the plaint is liable to be thrown away in limini as the question may be agitated in framing an issue to the point. Similarly, for alleged vagueness in the schedule, if any, the plaint is not liable to be rejected."

19. The crux of these decisions is that plaint can be rejected under order VII Rule 11 C.P.C. only on reference to the statements made in the plaint, not on defense material.

20. Since all the authorises held that plaint

cannot be rejected on the ground of resjudicata we find that learned judge committed gross illegality in rejecting the plaint on the ground of resjudi-cata. However, if the defendant wants to burie the suit earlier they can frame special issue as per order XIV Rule 2 the Code of Civil Procedure for a decision.

21. In the result, this appeal i.e. F. A. No. 123 of 2008 is allowed with these observations. No cost.

22. The impugned judgment and decree dated 9.10.2007 passed by the learned Joint District Judge, 3rd Court; Comilla rejecting the plaint in Title Suit No. 9 of 2005 is set aside.

23. Learned Judge is directed to proceed with the suit in accordance with law.

24. In Civil Revision No. 32.27 of 2006 plaintiffs challenge the judgment and decree passed by the learned District Judge, Comilla in Title Appeal No. 60 of 2005 affirming those dated 5.3.2005 passed by the learned Senior Assistant Judge, Chouddagram Sadar, Comilla dismissing Title Suit No. 45 of 2002 of its maintainability.

25. The case of the plaintiffs is that, Asgar Ali alias Asgar Bepari was the owner and possessor of the land described in the schedule Nos. l and 2 to the plaint and before C.S. operation, Asgar Ali permitted one Akub Ali to live in one portion of his homestead with a view to manage and look after his property and Akub Ali also was allowed him to cultivate some of his land without any title. During C.R. operation most of the land was correctly recorded in the name of Asgar Ali in C.R. khatian Nos. 10 and 13 but in C.R. khatian No. 4 in respect of land described in schedule No. l and the land wherein Akub Ali was allowed to reside was recorded in his name in possession column in plot No. 1961 and 2188 and Akub Ali also managed to record his name in possession column of plot No. 1897, 1898 and 2181.

26. The land of 2nd schedule was also belonged


401

to Asgar Ali During C.R. operation, Akub All managed to record his name in C.R. khatian No. 134. Asgar All died leaving sons namely, Ashraf Ali and Altaf Ali. Ashraf Ali died leaving three sons namely, Humayun Kabir, Abdul Sobhan and Abdul Majid and 4 daughters namely Meher Nigar and defendant Nos. 28-30. Mehar Nigar died leaving plaintiff No. 1 as husband, 4 sons as plaintiffs Nos. 2-5 and 2 daughters' plaintiff Mos. 6 and 7. Recently plaintiffs could know defendant got a decree in Partition Suit No. 61 of 1983 in respect of the suit land by practicing fraud hence the suit.

27. The case of the defendant Nos. 1-23, in short, is that, Basi Gazi was the owner of 1st schedule land who died leaving 2 sons in Asgar Ali Bepari and Wali Gazi and one daughter, Anu Bibi who became owner of 2nd schedule land and were possessing in ejmali. During C.R. operation their names have been recorded in schedule 1. Wali Gazi died leaving wife and son, Akub Ali. Akub Ali inherited the land firm his parents and his paternal aunt, Anu Bibi, who gifted 0.26 acres of land orally to Akub Ali and thereafter, husband of Anu Bibi and two daughters transferred 17 kora to Akub Ali by registered deed dated 13.5.1914. Akub Ali mortgaged the said land to Zinnat Ali. Asgar Ali died leaving two sons in Ashraf Ali and Altaf Ali. Atokjan died issueless leaving cousin Akub Ali, Ashraf Ali and Altab Ali. Akub Ali got 106 decimals of land from 1st schedule and 0.44 acres of land from 2nd schedule by way of inheritance and gift. Jafar Ali died leaving defendant Nos. 1 to 3 as heirs. Aahraf Ali died leaving defendant Nos. 26 to 30 as sons and daughters. Defendant Nos. 1-23 filed Partition Suit No.61 of 1983 and got decree and after obtaining final decree in the suit, defendant Nos.26-40 of the present suit filed Partition Suit No. 98 of 2000. The suit was dismissed for default. Thereafter, this suit was filed as such it is liable to be dismissed with cost.

28. The case of defendant Nos.34 to 41 is that Asgar Ali and Akub Ali were the owners and possessors of schedule Nos.l and 2 in equal share. Asgar Ali died leaving 2 sons in Ashraf Ali and Altaf Ali. For arrears of rent 1st schedule land was went back to talukder. Jatindramohon Sengupta. Ashraf Ali took back the same on 1.5.1916. Ashraf Ali died leaving defendant Nos. 26-27 as sons and grandsons' defendant Nos.31 and 32 and four daughters, plaintiffs are the heirs of Meher Nigar. Defendants have no objection regarding title of the plaintiffs in respect of 0. 29 acres of land. Defendants are owners and

possessors of 1.16 12 acres of land from schedule

Nos. l and 2 by way of inheritance.

29. Both the Courts dismissed the suit, practically held that plaintiffs failed to prove that they are the heirs of Mehar Nigar and also failed to prove Mehar Nigar is daughter of Ashraf Ali.

30. Mr. Mozamnel Hossain learned Advocate, appearing for the plaintiff-petitioner, submits thnt, Courts below concurrently and constantly were in error of law in shifting onus upon the plaintiffs to prove the fact that Mehar Nigar was daughter of Ashraf Ali and they are the heirs of Meharnigaras such, learned Advocate submits that, since onus have been wrongly shifted to the plaintiffs, the judgment and decree suffers from misreading of the facts, is liable to be set aside.

31. Mr. Bhishmadev Chakraborty, learned Advocate, on the other hand, submits that, P.Ws. failed to prove they are heirs of Meharnigar who is a daughter of Ashraf Ali, the depositions of P.Ws on this score are totally contradictory and not believable, as such, courts below committed no illegality in dismissing the suit.

32. To find the question of fact that whether Meharnigar was daughter of Ashraf Ali we may refer to the depositions of the witnesses. P.W. L Kabir Mian himself deposed that he is son of


Meharnigar. When any one claim that he is the son of some one further prove is not necessary as onus is shifter to the claimant who challenge his paternity to produce evidence that such person is not the son of such person whom he claim to his father or mother then and the person claim to be son of some one require to satisfy the fact of his paternity by aducing evidence. In the instant case when P.W 1 claim that he is son of Meher Nigar it is enough to hold P.W 1 is son of Mehar Nigar and onus entirely shifted to the defendants to prove whether Kabir Mian, P.W.I plaintiff No. 2, is son of Meharnigar and Meharnigar was daughter of Ashraf Ali. To this extent we find that Courts below committed gross illegality.

33. Issues were framed by the learned Senior Assistant Judge are that:-

“1.Is the suit maintainable in its present form and forum ?

2. Were the impugned judgment dated 15.3.99, the preliminary decree dated 21.3.99 and the final decree dated 8.7.01 passed in Partition Suit No. 61/83 by the Court of 2nd Sub-judge, Comilla obtained by practicing fraud upon the plaintiffs and court as well?

3. Are the plaintiffs entitled to get the relief as prayed for ?

4. To what other relief, if any, are the plaintiffs entitled ? "

34. It appears that no issue was framed as to identity of plaintiffs' paternity as such, the finding on this score i.e plaintiffs have no locus standi to challenge the decree as they are not the heirs of Meharnigar and Meharnigar was the daughter of Ashraf Ali are not sustainable. Unless issue be framed no one is bound to prove such fact. Plaintiffs whether the heirs of Ashraf Ali is the prime question and dispute to be settled but it appears no issue on this score was framed which

prejudice the plaintiffs. Since both the Courts below proceed in wrong promises we are not require to go deep into the decisions arrived at by the Courts below. We are of the view that this suit is required to be tried afresh with the observations made herein above. We are directing the learned Senior Assistant Judge to frame an issue on the identity of the plaintiffs paternity thereafter proceed with the suit.

35. In the result, this rule i.e. Civil Revision No. 3227 of 2006 is made absolute. No costs.

36. The judgment and decree passed by the Courts below are set aside. Title Suit No 45 of 2002 is sent back on remand to the learned Senior Assistant Judge, Chouddagram Sadar, Comilla for a fresh trial on the observations made in the body of the judgment.

37. In Civil Revision No. 3256 of 2005 the subject matter is application for transfer of Title Suit No. 9 of 2005 from the Court of Joint District Judge 3rd Court. Comilla to be heard and disposed of along with Title Execution Case No. 2 of 2002 of the Court of Joint District Judge. 2nd Court, Comilla on the ground that-

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38. It appears that learned District Judge without applying his judicial mind, in non speaking order, rejected the application.

39. Mr. Mozammel Hossain, learned Advocate, appearing for the petitioners, canvassed before us the ground that 'since the subject matter of Title Execution Case No. 02 of 2002 and subject matter of Title Suit No. 09 of 2005 being identical, it is necessary to hear by one Court, otherwise Title execution Case No. 02 of 2002 and Title Suit No. 09 of 2005 might have ended in conflicting decision and in that case, plaintiff petitioners, might have suffer irreparable loss and injury.

40. Mr. Tajul Islam Miajee, learned Advocate, appearing for the opposite parties opposes the prayer on the ground that if title execution case and title suit be tried analogously then it will take a long time for executing the decree sought to be executed though the execution case.

41. It is not denied that Title Suit No. 09 of 2005 is still pending seeking relief of the land covered by Execution Case No. 02 of 2002 as such if decree be executed, although law provides for recovery, then it will take a long course for getting back the land as such, we are of the view both Title Execution Case No.02 of 2002 and Title Suit No 09 of 2005 be disposed of by same court. Title Suit No. 09 of 2005 is withdrawn from the Court of learned Joint District Judge, 3rd Court. Comilla and it is placed before the Court of Joint District Judge 2nd Court, Comilla for disposal in accordance with law with Title Execution Case No. 2 of 2002

42. In the result, this rule i. e. Civil Revision No.3256 of 2005 is made absolute. No cost.

43. The impugned Order dated 7.08.2005 passed by the learned District Judge, Comilla in Miscellaneous case No. 43 of 2005 is set aside.

Send down the lower Court records at once. Communicated this order at once. Ed.

HIGH COURT DIVISION (Criminal Appellate Jurisdiction)

Mr. Syed Md. Ziaul Karim, J..

And

Mr. A.N.M. Bashir Ullah, J.

Judgment 18.01.2012

}

}

}

}

}

}

Death Reference No. 31 of 2006 The State

...Appellants. Vs.

Nowsha alias Nowser ...Condemned Prisoner.

With Criminal Appeal No. 2083 of 2006 Nanu and another

....Convict AppellantsVs.

The State, ...Respondent

Penal Code (XLV of 1860) Section 302 The evidence of all prosecution witnesses are consistent, uniform and corroborative with one another with all material particulars, particul-arly shooting to Kasem (PW-3) and deceased Ishak. There is absolutely no reason to disbeli-eve the consistent and corroborative evidence of those competent witnesses, having no reason whatsoever to depose falsely against them. The defence extensively cross-examined them but nothing could be elicited to shake their credib-ility in any manner whatsoever. So the same are invulnerable to the credibility. The prosecution successfully proved the charges against the condemned prisoner Nowsa beyond all reasonable doubt. ....(43 and 65)

Evidence Act (I of 1872) Section 3 Evidence of close relations of the victim cannot be discarded more particularly when close relations does not impair the same. Straightforward evidence given by witness who is related to deceased cannot be rejected on sole ground that they are interested in prosecution. Ordinarily close relation will be last person to screen real culprit and falsely implicate a person. So relationship far from being ground of criticism is often a sure guarantee of its truth. ...(49). Death Reference No. 31 of 2006 with Criminal Appeal No. 2083 of 2006.

The State Vs. Nowsha alias Nowser. (Syed Md. Ziaul Karim, J.)

I LNJ (2012) Government of Bangladesh Vs. Kothari Fermentation and Biochem Ldt. (Krishna Debnath, J.)

411



And

Madam Krishna Debnath, J.

Judgment 28.02.2012

}

}

}

Government of Bangladesh

...Appellants.

Vs.

Kothari Fermentation and Biochem Ltd.

...Opposite parties

Arbitration Act (I of 2001) Section 33 The defendant petitioner at the time of filing of the written objection under section 33 of the Arbitration Act, did not make any deposit which made the application a nullity in the eye of law. The application filed today seeking permission to furnish the security during the pendency of appeals is barred by section 33 of the Arbitration Act. The language used in section 33 of the Act is mandatory in nature. ..(4-5)

Limitation Act (IX of 1908) Article 158 The written objection was filed by the appellant on 25.08.2005 after receiving the notice on 17.02.2005 which is barred by limitation accord-ing to Article 158 of the Limitation Act. The Arbitration Act is a special law, it is to be treated as mandatory as a result of which the time limit of 30 days cannot be extended. ...(6)

Bangladesh Water Development Board and others vs. Progati Prakaushali and another, 49 DLR-335, Bangladesh Water Development Board vs. Nasim and brothers and another, 1988 BLD-369, Rajdh-ani Unnayan Kartripakkha (RAJUK) vs. MN Alam and Associates Ltd. and another, 54- DLR-161 and Dhaka Leather Complex Ltd. BCIC vs. Sikder Construction Ltd. and another, 55 DLR-578;55 DLR-578 ref.

Judgment Krishna Debnath, J. Appeals from Original Decree No. 131 of 2011, Appeal From Original Order No. 133 of

First Appeal No. 131 of 2011 with First Miscellaneous Appeal No. 133 of 2011 with First Miscellaneous Appeal No. 134 of 2011 with First Appeal No. 127 of 2011.

2011, Appeal From Original Order No. 134 of 2011 and Appeal From Original Decree No. 127 of 2011, directed against judgment and decree dated 28.3.2007 passed by the learned Joint District Judge, First Court, Dhaka in Arbitration Miscellaneous Case No. 16 of 2005 heard analogously with Arbitration Miscellaneous Case No. 77 of 2005. It appears from the office note dated 11.5.2011 that in tendering the appeals there was delay of 129 days and it appears that the delay of 129 days was condoned subject to payment of Tk. 50% of the decreetal amount, but we do not find from the order books of the appeals such payment was made as such appeals are incompetent.

2. The facts relating for disposal of these appeals are that, Ministry of Food as buyer and Kothari Fermentation and Biochem ltd. as seller entered into contract No.BG-13/95 dated 6.4.1995 for buying/selling 20,000 metric tons of parboiled rice at the rate of US $ 259.98 per metric ton. The contract was fully performed by the seller and claimed U.S $ 4,74,814.09 but there was dispute for short supply of the consignment and dispute referred to the 2(two) Arbitrators on 17.7.2003 and arbitration proceeding was started from 23.7.2003. Before the arbitrators the seller claimed U.S. $ 4,74,814.09 from the buyer. The buyer also raised a counter claim of U.S. $ 78,486.59. Learned Arbitrators passed unanimous award on 12.09.2004 allowing seller's claim amounting to U.S. $ 1,52,566.60 at the rate of Tk. 36/- per dollar. The award was submitted to the Joint District Judge, 1st Court, Dhaka on 15.1.2005. It was registered as Title Suit No. 18 of 2005. The Ministry received the court's notice on 17.2.2005 but filed written statement and written objection on 25.8.2005 under section 30 and 33 of the Arbitration Act, 1940. Ministry also filed Arbitration Miscellaneous Case No. 79 of 2005 on 28.8.2005. The cases were heard analogously and judgment was passed on 28.7.2007 against which the appeals are filed.

Government of Bangladesh Vs. Kothari Fermentation and Biochem Ldt. (Krishna Debnath, J.) I LNJ (2012) 412

3. When it was noticed to the learned Deputy Attorney General whether appellant filed any security as per proviso of section 33 of the Arbitration Act, Mr. S.S. Sarker, learned Deputy Attorney General, to-day filed application for allowing the appellant to file security as per satisfaction of the Court. On a perusal of the application we do not find any security attached with the application, thus this application merely an application for seeking permission of the Court for furnishing security as per satisfaction of the Court, which in any way, does not satisfy the proviso of Section 33 of the Arbitration Act. Section 33 of the Arbitration Act is as follows:

33. Arbitration agreement or award to be contested by application-Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits;

Provided that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit;

Provided that no application challenging the existence or validity of an award or for having its effect determined shall be entertained by the Court unless the applicant has deposited in the Court the amount which he is required to pay under the award or has furnished security to the satisfaction of the Court for the payment of such sum or for the fulfillment of any other obligation by him under the award."

4. From the decisions, i.e. the case of Banglad-esh Water Development Board and others vs.

Progati Prakaushali and another, 49 DLR-335, Bangladesh Water Development Board vs. Nasim and brothers and another, 1988 BLD-369, Rajdh-ani Unnayan Kartripakkha (RAJUK) vs. MN Alam and Associates Ltd. and another, 54- DLR-161 and case of Dhaka Leather Complex Ltd. BCIC vs. Sikder Construction Ltd. and another, 55 DLR-578. it has been held that 'deposit contem-plated under the law is a condition precedent for entertainment of the application challenging the award and without deposit it is to be construed that there was no application in the eye of law and also deposit made during the pendency of the case cannot be treated a valid deposit as the language of the law is mandatory and not directory and, as such, the application filed by the defendant-petitioner before the trial Court is non-existent in the eye of law and, as such, we find that the learned Subordinate Judge rightly rejected the written objection.' In the instant case the defendant -petitioner at the time of filing of the written objection, which was filed under section 33 of the Arbitration Act, did not make any deposit as was required under section 33 of the Arbitration Act and that rendered the application under section 33 of the Arbitration Act a nullity in the eye of law for non-compliance of the proviso to section 33 of the said Act and the learned Subordinate Judge rightly took the view that non-compliance of the proviso to section 33 of the said Act rendered the said written objection under section 33 of the Arbitration Act as non existent in the eye of law.'

5. It also an admitted position that at any point of time during entire proceeding appellant did not furnish any security but when it was confronted by this Court, to day appellant filed application seeking permission to furnish the security but even if deposit made during the pendency of the appeals cannot be treated as valid deposit as the language of the law is mandatory and not directory. The application filed to-day is clearly barred as per provision of section 33 of the Arbitration Act. Wherein the law is that the security is to be

I LNJ (2012) Government of Bangladesh Vs. Kothari Fermentation and Biochem Ldt. (Krishna Debnath, J.)

413

deposited or any body challenged the award then also it accompanied by security. In the decision reported in 55 DLR-578 a Division Bench of this Court held that unless the security be paid Court has no jurisdiction to entertain any claim of the objector or the person who challenge the award.

6. It also appears from the facts that written objection was filed by the appellant on 25.8.2005, after receiving of notice on 17.2.2005, which is barred as per provision of Article 158 of the Limitation Act as when provision of Limitation Act apply in Special Law it is to be treated as mandatory and in no imagination the time limit prescribed i.e. 30 days can not be extended following the exempted provisions of law of limitation. In this Subcontinent all the Courts speaks Arbitration Act is special law, it cannot condone even one day if written objection filed out of time. Written statement having filed beyond time, as such, as per provision of article 158 of the Limitation Act trial Court ought to reject the objection in limine.

7. Since there is no security filed by the appellant we find appeals are incompetent. Moreover, we have seen that Appeal from Original Decree No. 127 and 131 of 2011 were filed which itself are not maintainable as Arbitration proceedings ends in by delivering after without any decree. It is to be noted here that learned Arbitrators as well as the court which make award rule of the court directed for payment of the awarded sum in U.S.$ as such appellants are directed to pay the awarded sum in U.S. $.

8. In the result, all the appeals i.e. First Appeal No. 131 of 2011 with F.M.A. No. 133 of 2011 with F.M.A. No. 134 of 2011 with F.A. No. 127 of 2011 are dismissed. No costs.

Send down the lower Court records at once.

Ed.


Mr. Nozrul Islam Chowdhury, J..

And

Mr. K.M. Kamrul Kader, J.

Judgment 21.11.2011 & 23.11.2011

}

}

}

Nazir Ahmed and others.

...Appellants.

Vs.

Md. Fajal Ahmed and others.

...Respondents.

Public Demands Recovery Act (III of 1913) Sections 3(3), 22 and 23 Evidence Act (I of 1872) Section 80 An application filed by Sachindra Chandra Mohantha and two others for setting aside of certificate sale took place in a certificate case under section 23(2) of the Public Demands Recovery Act. The certified copies were issued as back as on 9.4.1974 long before the institution of the instant suit in the year 1997 which clearly shows that it was owing to non service of notice upon Sachin Chandra Mohantha the auction sale was set aside by the Certificate Officer. Such copies are genuine documents evidencing the official act cancelling the auction sale held in Certificate Case No. 188/64-65. Since a presump-tion of genuineness of such cancellation is available under section 80 of the Evidence Act and such presumtion having not been rebutted by the plaintiffs, it can safely be arrived at a finding that the auction sale in favour of Taheruddin was set aside in a regular proceeding and after setting aside the auction sale, the subsequent transfer from Taheruddin onwards upto the plaintiff have been rendered invalid and hence the plaintiffs are not entitled to get a declaration of their title.

We feel inclined to take notice of two Exts. marked as Exts. Ka and Kha certified copies of the order sheet of Miscellaneous Case dated 13.02.74 passed in Miscellaneous Case No. 2/73-74 and the application for setting aside sale wherefrom it is evident that Sachin Chandra Mohantha and others were the applicants while Taheruddin was the opposite party. These certified copies were issued as back as on 09.04.74 long before the institution of the instant suit in the year 1997 which clearly shows

First Appeal No. 153 of 2001.

Nazir Ahmed and others Vs. Md. Fajal Ahmed and others. (Nozrul Islam Chowdhury, J.)

I LNJ (2012) Md. Abu Taher Vs. Md. Jashim Uddin and anohter (Md. Badruzzaman, J.)

425

HIGH COURT DIVISION (Civil Revisional Jurisdiction)


And Mr. Md. Badruzzaman, J.

Judgment 21.06.2012

}

}

}

Md. Abu Taher ...Petitioner.

Vs.

Md. Jashim Uddin and another

...Opposite parties

Evidence Act (I of 1872) Section 92 Oral evidence led on behalf of defendant No.1, the vendor has been corroborated by two other witnesses. Evidence of these three witnesses including the vendor is not admissible insofar as it relates to contradicting or varying the terms of the document in the light of the provisions of section 92 of the Evidence Act. As per above observations and considering the facts of the case it can safely be held that Ext. 1 is a bainapatra, not an agreement for loan or mortgage deed.

...(14)

Specific Relief Act (I of 1877). Section 12 Plaintiff has successfully proved that he fulfilled his obligations and was very much willing and ready to get the kabala from defendant after payment of the balance of the consideration money within the stipulated period, there being no controversy regarding the failure of defendant-petitioner to perform his obligations within period allocated to him, the suit for specific performance cannot fail. ....(22) Code of Civil Procedure (V of 1908) Section 115 (1) The trial Court and the lower appellate Court are the final Courts of fact. The suit having been concluded on concurrent finding of fact, it is very difficult to interfere with the findings of facts sitting under revisional jurisdiction as those are binding upon High Court Division as a revisional Court under section 115(1) of the Code of Civil Procedure, unless it is found that the concurrent findings of fact are perverse being contrary to law or based on non-consideration or misreading or

*Civil Revision No. 1983 of 2010.

non-reading of the material evidence affecting the merit of the case. ...(25)

Feroza Majid vs. JB Corporation, 39 DLR (AD) 78; Jainal Abedin Molla vs. Atiar Rahman, 1983 BLD (AD) 105; Ram Chandra Das Vs. Md. Khalilur Rahman and another, 37 DLR (AD) 21; Abdul Alim Akondo Vs. Government of Bangladesh and others, 16 MLR (AD) 417; Abdul Gagfur Vs. Md. Abdur Razzak, 62 DLR (AD) 242 ref.

Judgment

Md. Badruzzaman, J.

This Rule, at the instance of the defendant No.1- appellant, directed against judgment and decree dated 2.5.2010 passed by the learned Additional District Judge, 1st Court, Kishoregonj in Other Class Appeal No. 45 of 2009 disallowing the appeal and affirming the judgment and decree dated 9.4.2009 passed by the learned Joint District Judge, 1st Court, Kishoregonj in Other Class Suit No. 19 of 2003 decreeing the suit.

2. The opposite party No.1 as plaintiff instituted the above suit for specific performance of contract in respect of the suit shop along with 2.50 decimal land as described in the schedule to the plaint. The case of plaintiff is that defendant No. 1 in need of money for carrying out business, executed a bainapatra on 16.11.2002 in favour of plaintiff for selling the suit shop along with 2.50 decimal land for a total consideration of Tk. 5,00,000/- and received Tk. 3,00,000/- as earnest money out of the total consideration. It was stipulated in bainapatra that defendant would execute and register the relevant sale deed in favour of plaintiff if he would pay the balance of the consideration money within three months from the date of execution of the bainapatra and it was also stipulated in bainapatra that if defendant be able to return the said Tk. 3,00,000/- with compensation to plaintiff within that period of three months bainapatra would stand cancelled . As per the terms of said bainapatra defendant failed to return the said amount of Tk. 3,00,000/- with compensation within the said stipulated period and thereafter plaintiff on 20.2.2003 requested defendant No.1 to execute and register

Md. Abu Taher Vs. Md. Jashim Uddin and anohter (Md. Badruzzaman, J.) I LNJ (2012) 426

the relevant deed of sale in presence of Moijuddin and Abu Taher on receiving the balance of the consideration but defendant refused to execute and register the deed of sale in favour of plaintiff in pursuant to the aforesaid bainapatra and hence the suit.

3. Defendant No. 1, petitioner contested the suit by filing a written statement denying all the material facts as stated in the plaint. His case, in brief, is that, plaintiff is a money lender. He lends money to others by receiving high rate of interest. Defendant rented the shops to different persons by erecting a half building on the suit land. Defendant, being in need of money for sending his son and nephew abroad, approached for a loan amounting to Tk. 3,00,000/- to plaintiff and plaintiff demanded Tk. 8,000/- as interest per month and accordingly defendant No. 1 took a loan amounting to Tk. 3,00,000/- from plaintiff with an interest at the rate of Tk. 8,000/- per month and also mortgaged the suit shop to plaintiff. Defendant thereafter executed an agreement in favour of plaintiff with that regard but he was unable to read the contents of the agreement at the time of execution as he was in dire need of money. Defendant paid interest to plaintiff at the rate of Tk. 8,000/- per month. He also returned the loan amount of Tk. 3,00,000/- to plaintiff on 16.2.2003 in presence of witnesses but at the time of returning the loan amount plaintiff did not return the said agreement with a plea that he could not trace out the agreement and he agreed that he would return the same as and when he could trace it out. Plaintiff without returning the agreement filed the suit with a malafide intention and in breach of trust and as such the suit is liable to be dismissed with cost.

4. Both parties adduced oral evidence. Alleged bainapatra has been produced by plaintiff and after formal proof it has been marked as exhibit-1. Trial Court upon consideration of the evidence on record decreed the suit by judgment and decree dated 9.4.2009. Being aggrieved and dissatisfied with aforesaid judgment and decree of trial Court defendant No.1 preferred Other Class Appeal No. 45 of 2009 in the Court of District Judge,

Kishoregonj which, on transfer, was heard and disposed of by the learned Additional District Judge, 1st Court, Kishoregonj who, after hearing, disallowed the appeal by judgment and decree dated 2.5.2010 affirming those of the trial Court. Against the aforesaid judgment and decree of appellate Court instant revisional application was filed before this Court by defendant and the present Rule was issued.

5. Mr. Md. Ali Azzam, learned Advocate appearing on behalf of defendant-appellant-petitioner, placed the revisional application, impugned judgments of the Courts below and other materials on record and submits that both the courts below committed a serious error of law in decreeing the suit against the weight of the evidence. He further submits that the courts below failed to consider that defendant-petitioner did not enter into any agreement for sale or bainapatra in respect of the suit shop with plaintiff-opposite party and that defendant-petitioner took a loan amounting to Tk. 3,00,000/- with an interest at the rate of Tk. 8,000/- per month from plaintiff-opposite party and signed a document on that regard but plaintiff collusively made a bainapatra instead of an agreement for loan, keeping defendant-petitioner in a dark. He further submits that plaintiff failed to discharge his onus to prove the alleged bainapatra and both the courts below erred in law resulting in an error in the decision occasioning failure of justice in decreeing the suit and as such the judgment and decree passed by the courts below are liable to be set aside.

6. Mr. M.M. Haque Siddique (Rana), learned Advocate appearing on behalf of plaintiff-opposite party No.1, on the other hand, submits that the findings of fact arrived at by the courts below are concurrent and the same are based on proper appreciation of evidences on record. That being so the High Court Division in revision can not upset the concurrent findings of fact arrived at by the courts below. He further submits that the suit being a suit for specific performance of contract, the courts below having found that the contract is valid have rightly decreed the suit and no error of law has been committed.


427

7. Learned Advocate for the opposite party by referring to exhibit-1, the alleged bainapatra, submits that as per stipulation of the bainapatra plaintiff offered the balance of the consideration money to defendant in presence of the witnesses and requested the defendant to execute and register the relevant deed of sale and as the defendant refused, the plaintiff has been constrained to institute the suit for specific performance of contract.

8. Lastly, the learned Advocate submits that both the trial Court and appellate Court have come to the specific conclusion that defendant has not been able to prove that the amount of Tk. 3,00,000/- which was admittedly received by defe-ndant from plaintiff was a loan and he returned the said loan amount of Tk. 3,00,000/- with interest to plaintiff by adducing sufficient evidence. This finding of fact being based on proper appreciation of evidence can not be interfered with by this Court in revisional jurisdiction and prays for discharging the Rule.

9. We have heard the learned Advocates of both the parties at length and have also gone through the records of the case in minute particulars.

10. On the pleadings of the parties and the evidence led by them following questions calls for determination. At first, whether Ext. 1 is a bainap-atra or a loan agreement and whether plaintiff has been able to prove Ext. 1 as bainapatra, and next, whether the amount of Tk. 3,00,000/- admittedly received by defendant from plaintiff was returned by defendant to plaintiff and lastly whether plain-tiff has been able to prove his case and is entitled to get a decree for specific performance of contract or to enforce the said contract.

11. The first question for consideration is whether Ext. 1 is a bainapatra or a loan agreement and whether plaintiff has been able to prove Ext. 1 as bainapatra.

12. The contention of plaintiff is that he paid Tk. 3,00,000/- on 16.11.2002 to defendant No.1 as earnest money out of Tk. 5,00,000/-, which was the consideration money and defendant No.1 ente-

red into an agreement for sale of the suit shop along with 2.50 decimal land to plaintiff. As defendant No.1 did not execute and register the kabala in question plaintiff filed the suit for specific performance of contract. To prove the said contention plaintiff examined three witnesses and formally proved bainapatra which has been marked as exhibit-1 and it is found by the trial Court that by oral evidence plaintiff has been able to prove that defendant No.1 has entered into an agreement for sale with plaintiff in respect of the suit property after receiving Tk. 3,00,000/- as earnest money out of total consideration of Tk. 5,00,000/- in presence of the witnesses. The court also found that P.W. 1, plaintiff himself supported the plaint case by oral evidence. P.W.3 has also supported the plaint case that defendant No.1 executed a bainapatra in favour of plaintiff on receiving Tk. 3,00,000/- as earnest money by cheque from plaintiff and he was present at the time of execution of bainapatra and defendant No.1 put his signature to the bainapatra after knowing the contents of bainapatra. He is a witness to the bainapatra. He stated that the baina money was paid to defendant in his presence and he also put his signature in the bainapatra. P.W.2 has also supported the case of plaintiff. Defendant in his deposition admitted his signature in the written bainapatra as the executant, which was categorically supported by other witnesses. Trial Court also found that defendant No. 1 could not able to prove that he had taken a loan of Tk. 3,00,000/- from plaintiff and signed the agreement for loan without going through the contents thereof and he was unable to read the contents of the agreement as he was in dire need of money by adducing sufficient evidence. Appellate Court after discussing the evidence on record upheld all these findings of fact as arrived at by trial Court and both the trial Court and the lower appellate Court concurrently found that the exhibit-1 is a bainapatra .

13. In the case of Feroza Majid vs. JB Corporation reported in 39 DLR (AD) 78, their Lordships held that “oral or extraneous evidence to contradict the terms of the contents of a document is inadmissible under section 92 of the


Evidence Act”. In that case it was also held that “Section 91 of the Evidence Act provides that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, no evidence shall be given in proof of the terms except the document itself, or its secondary evidence where permissible. Section 92 of the Evidence Act which is in fact the continuation of section 91, prohibits the consideration of any oral or extraneous evide-nce to contradict the terms of an instrument when it is proved under section 91, subject, of course, to certain exceptions. There is uniformity of the judicial authorities on the question of exclusion of oral evidence by documentary evidence, and it is an established rule of evidence that oral evidence is inadmissible for the purpose either of construing the terms of a document or of ascertaining the intention of the parties thereto”. In the case of Jainal Abedin Molla vs. Atiar Rahman reported in 1983 BLD (AD) 105 our apex Court also held that “no evidence is admissible to vary the contents of the documents by any oral evidence”. Now let us see the document i.e Ext. 1 itself.

14. On the face of it, Ext. 1 is evidently executed by defendant No.1 for selling the suit shop on receiving Tk. 3,00,000/- as earnest money out of the total consideration of Tk. 5,00,000/-. It also contains a recital that the vendor i.e defendant No. 1 will execute and register the relevant deed of sale if the vendee i.e plaintiff pay the balance of the consideration money within three months. Contention of the vendor was that he in need of money for sending his son and nephew abroad, approached for a loan amounting to Tk. 3,00,000/- to the vendee and the vendee demanded Tk. 8,000/- as interest per month and he took a loan amounting to Tk. 3,00,000/- from the vendee with an interest at the rate of Tk. 8,000/- per month and also mortgaged the suit shop to the vendee. The vendor thereafter executed an agreement in favour of the vendee with that regard but he was unable to read the contents of the agreement as he was in dire need of money. But nothing of this sort was mentioned anywhere in the deed, Ext. 1, and this claim is entirely rested upon oral evidence of the vendor. Oral evidence led on behalf of defendant

No.1, the vendor has been corroborated by two other witnesses. Evidence of these three witnesses including the vendor is not admissible so far as it aims at contradicting or varying the terms of the document in the light of the provisions of section 92 of the Evidence Act. As per above observations and considering the facts of the case it can safely be held that Ext. 1 is a bainapatra, not an agreem-ent for loan or mortgage deed.

15. Next question for consideration is whether the amount of Tk. 3,00,000/- admittedly received by defendant from plaintiff was returned by defendant to plaintiff.

16. The contention of defendant is that he took Tk. 3,00,000/- as loan from the plaintiff with an interest at the rate of Tk. 8,000/- per month and he signed an agreement for loan and mortgaged the suit shop to plaintiff and he also returned the said loan with interest to plaintiff on 16.2.2003. In support of his claim defendant No.1 examined three witnesses out of which D.W.3 was declared hostile. Both the courts below after proper appreciation of the evidence on record concurrently found that the oral witnesses of defendant were not able to prove the said claim of defendant and also defendant had not been able to produce any paper to show that he returned Tk. 3,00,000/- with interest to plaintiff. We do not find any illegality in the above observation of the Courts below.

17. The last question for consideration is whether plaintiff has been able to prove his case and is entitled to get a decree for specific performance of contract or to enforce the said contract.

18. Learned Advocate for the petitioner by an alternative argument submits that even if defendant admits the bainapatra then also plaintiff will not get decree for specific performance of contract as time was the essence of the contract in as much as plaintiff had not been able to pay the balance of the consideration money within 3(three) months from the date of execution of bainapatra as stipulated in it.

19. In reply to this contention, learned Advocate for the opposite party by referring exhibit-1,


429

bainapatra, submits that time was not the essence of the contract in as much as though there was a condition in the bainapatra to the effect that if plaintiff is able to pay the balance of the consideration money within three months, defendant will execute and register the relevant sale deed, but there was another condition that if vendor-defendant is able to refund the earnest money of Tk. 3,00,000/- with compensation to vendee-plaintiff within that period, the bainapatra shall stand cancel. He further submits that as per the aforesaid stipulation plaintiff had to wait for the said period of three months to enable defendant to refund the earnest money within that period and after the expiry of the said three months on 16.2.2003, plaintiff offered the balance of the consideration money on 20.2.2003 to defendant in presence of the witnesses and requested defendant to execute and register the relevant deed of sale and being refused by defendant, plaintiff was constrained to institute the suit for specific performance of contract and as such he is entitled to get decree for specific performance of contract.

20. On a look into exhibit-1, bainapatra we have found some conditions therein which is quoted verbatim below:

Òevqbv ev` eµx UvKv Avgv‡K AvMvgx 03 gv‡mi g‡a¨ cwi‡kva KiZt Avcbvi KIjv m¤úv`b I †iwRóªvix Kwiqv wb‡eb| D‡jøL¨ hw` D³ 3 gv‡mi g‡a¨ Avcbvi evqbv cÖ Ë D‡jøwLZ 300000/- wZb jÿ UvKv ÿwZc~iY mn †diZ cÖ v‡b mgZ© nB Z‡e evqbv cÎ evwZj e‡j MY¨ nB‡e| Avi hw` D³ †gqv‡`i g‡a¨ D³ UvKv ÿwZc~iY mn †diZ `v‡b mgZ© bv nnB Z‡e AÎ evqbv cÎ ejer _vwK‡e Ges Aewkó UvKv Avgv‡K cwi‡kv` KiZt Avcbvi KIjv Kwihv A_©vr m¤úv`b I †iwRóªvix Kwiqv wb‡eb|Ó

21. On perusal of the conditions as quoted above it is clear that plaintiff had an obligation to pay the balance of the consideration money to defendant within 3 (three) months from the date of execution of bainapatra dated 16.11.2002 but that condition depends upon the next condition wherein it was stipulated that if defendant is able to return the earnest money with compensation to plaintiff within that period, the bainapatra would stand cancelled and if defendant is failed to return the

said money with compensation within that period the bainapatra would remain as it was without mentioning any time limit for plaintiff to pay the balance of the consideration money. So as per the above conditions plaintiff had no other option other than to wait for a period of three months i.e up to 16.2.2003. So in our view time was not the essence of the contract on the part of plaintiff. This view finds support in the case of Ram Chandra Das Vs. Md. Khalilur Rahman and another reported in 37 DLR(AD) 21 where it was observed that “when time is made the essence of the contract under which parties thereto agree mutu-ally to undertake certain obligations, it would be necessary to find whose failure to carry out his obligations within the time mentioned in the contract the same could not be performed. It is necessary to find whose unwillingness to perform his part of the obligation under the contract eventually led to the nonperformance of the contract. In a suit for specific performance of contract, plaintiff must succeed if his readiness and willingness to perform the obligations under-taken by him are proved”.

22. It appears that both the courts below after elaborate discussions of the evidence on record concurrently found that after the expiry of the period of three months on 16.2.2003, plaintiff offered the balance of the consideration money on 20.2.2003 to defendant in presence of the witnesses and requested the defendant to execute and register the relevant deed of sale in favour of plaintiff and defendant failed to perform his obligation. So it can be said that plaintiff has successfully proved that he fulfilled his obligations and was very much willing and ready to get the kabala from defendant after payment of the balance of the consideration money within the stipulated period, there being no controversy regarding the failure of defendant-petitioner to perform his obligations within period allocated to him, the suit for specific performance can not fail.

23. At last learned Advocate for the defendant-petitioner submits that both the courts below committed a serious error of law in decreeing the suit against the weight of the evidence and upon non- consideration and misreading of evidence and


thus committed an error of law in the decision occasioning failure of justice.

24. In reply to the said argument of learned Advocate for petitioner, learned Advocate for plaintiff-opposite party No.1 submits that in the instant case the findings of fact arrived at by the courts below are concurrent and the same are based on proper appreciation of evidences on record. That being so the High Court Division in revision can not upset the concurrent findings of fact arrived at by the courts below. Let us see the legal aspect of the point raised by the learned Advocate of both the parties.

25. We have already noticed that both the courts below after discussions of the materials on record as well as evidence of both the parties arrived at a common finding that plaintiff has been able to prove the bainapatra for valuable consideration and his willingness to pay the balance consideration in time as stipulated in the bainapatra. Learned Advocate for petitioner could not show from the record that the concurrent findings of the Courts below on this point based on misreading or non-reading or non-consideration of the evidence on record or misinterpretation of any material document. From the facts and circumstances of the case we find substance in the contention raised by the learned Advocate for plaintiff opposite party No.1 that the Courts below in the facts and circumstances of the case committed no illegality in decreeing the suit as prayed for. The trial Court and the lower appellate Court are the final Courts of fact. The suit having been concluded on concurrent finding of fact, it is very difficult to interfere with the findings of facts sitting under revisional jurisdiction as those are binding upon High Court Division as a revisional Court under section 115(1) of the Code of Civil Procedure, unless it is found that the concurrent findings of fact are perverse being contrary to law or based on non-consideration or misreading or non-reading of the material evidence affecting the merit of the case. This contention finds support in the case of Abdul Alim Akondo Vs. Government of Bangladesh and others reported in 16 MLR (AD) 417 where it has been observed that “the finding of fact of the final Court of fact on

concurrent finding can not be disturbed by the revisional Court.” Similar observation has been made in the case of Abdul Gagfur Vs. Md. Abdur Razzak reported in 62 DLR (AD) 242 where their Lordships held that “Courts below also concurrently found that the defendants have failed to prove their right, title, interest and possession in the suit lands by adducing oral and documentary evidence. These findings of fact are not immune from interference by the High Court Division in exercise of revisional jurisdiction in the absence of misreading or non-consideration of the evidence on record. The learned judge of the High Court Division has exceed its jurisdiction in interfering with the concurrent findings of fact, which is liable to be interfered with.”

26. Judgment of the trial Court which was affirmed by the appellate Court, as we see, do not find that the judgments are tainted with legal infirmity or perversity justifying interference. We ourselves also examined the record of the case and in our view there are sufficient evidence and materials on record to come to the decisions which have been arrived at by the courts below. The judgments of the courts below thus, do not warrant any interference by us as the Courts below have not committed any error of law resulting in an error in the decision occasioning failure of justice.

27. In view of the discussions made above we hold that this civil revisional application is incompetent.

28. In the result, the Rule is discharged without any order as to costs. The judgment and decree dated 2.5.2010 passed by the learned Additional District Judge, 1st Court, Kishoregonj in Other Class Appeal No. 45 of 2009 disallowing the appeal and affirming the judgment and decree dated 9.4.2009 passed by the learned Joint District Judge, 1st Court, Kishoregonj in other Class Suit No. 19 of 2003 decreeing the suit is hereby maintained.

Order of stay granted at the time of issuance of Rule, which was extended time to time, stands vacated. Let a copy of the judgment along with the lower Courts record be sent down at once.

Ed.

August Issue

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