IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 3459 OF 2005

IN THE MATTER OF:

An  application  under  section  115(1)  of  the Code of Civil Procedure. (Against Decree)

-And-

IN THE MATTER OF:

Mohammad Aminul Haque and others

--- Defendant-Respondent-Petitioners. -Versus-

Md. Jalal Ahmed and another

--- Plaintiff-Appellant-Opposite Parties. Mr. Shasti Sarker with

Mr.  Mohammad  Mosarof  Hosen  Sikder, Advocates

--- For the Defendant-Res.-Petitioner No. 1. Mr. Md. Habibur Rahman, Advocate

---For the Plaintiff-Appellant- O. P. No. 1.

Heard  on:  19.07.2023,  20.07.2023, 27.07.2023 and 03.08.2023.

Judgment on: 23.08.2023.

At  the  instance  of  the  present  defendant-respondent- petitioners, Mohammad Aminul Haque and others, this Rule was issued upon a revisional application filed under section 115(1) of the Code of Civil Procedure calling upon the opposite party No. 1  to  show  cause  as  to  why  the  judgment  and  decree  dated 21.05.2005 and 28.05.2005 complained of in the petition moved in Court should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the present opposite party No. 1, namely, Md. Jalal Ahmed as the plaintiff filed the Title Suit No. 331 of 2002 in the court of the learned Assistant Judge, Court No. 2, Dhaka praying for the declaration of title of the suit property and also cancellation of 2 (two)  other  registered  Heba-Bill-Ewaj  Deed  described  in  the schedules of the plaint as schedules ‘Ga’, ‘Gha’ and ‘Uma’ of the plaint. The plaint contains that the plaintiff was the owner of the suit  land  by  purchasing  and  mutating  his  name  and  also constructed a house on his portion of land, therefore, he rented to the wife of defendant-petitioner No. 1 being defendant-petitioner No.  3,  namely,  Mosammat  Rowshan  Ara  Haque.  The  plaint further contains that in the year 1999 wife of the plaintiff was seriously ill and for her treatment plaintiff sold schedules ‘Ka’ and ‘Ga’ to the present defendant-petitioner No. 1 in return for Tk. 8,00,000/- (Eight Lac). The plaintiff further committed to transfer the schedule ‘Gha’ land to the plaintiff by executing an exchange deed with the schedule ‘Ka’ property. The plaint also alleged that the defendant-petitioner No. 1 created an exchange deed  of  the  schedule  ‘Ka’  and  schedule  ‘Kha’  properties  as mentioned in the plaint being deed No. 5545 dated 10.05.2000. The defendant-petitioner No. 1 failed to pay the said amount of Tk. 8,00,000/- (Eight Lac) but the terms and conditions of the exchange deed would not be committed. There was a Shalish (n¡¢mp) by the Chairman of Uttar Khan Union Parishad, Dhaka. In the meantime, defendant-petitioner No. 1 transferred the ‘Ka’ schedule land to defendant No. 2 by executing a Heba-Bill-Ewaj on  15.05.2000  with  an  ill  motive,  thus,  which  should  be canceled, therefore, the deed should be canceled.

The suit was contested by the present defendant-petitioner No. 1 who filed an application under Order 7 rule 11 of the Code of Civil Procedure for rejection of plaint. The written statement further  contended  that  the  present  plaintiff-opposite  party registered the deed of exchange No. 5545 dated 10.05.2000 and delivered the possession of the land measuring .0660 Ajutangsha (Ak¤a¡wn) of land to the defendant-petitioner No. 1 who executed a registered Heba-Bill-Ewaj Deed Nos. 5803 and 5804 both dated 15.05.2000  to  the  present  defendant-petitioner  Nos.  2  and  3 where the present plaintiff-opposite party was an identifier and attested  witness  by  putting  her  signature.  The  defendant- petitioner got gas and electricity connections in the year 2001 and set up a tube well in the suitland. The defendant-petitioners have been possessing the suit land by constructing a residential house.

After  hearing  the  parties  the  learned  Assistant  Judge, Court No. 2, Dhaka allowed the application filed under Order 7 rule 11 of the Code of Civil Procedure by rejecting the original plaint.  Being  aggrieved  the  present  plaintiff-opposite  party preferred the Civil/Title Appeal No. 220 of 2004 in the court of the learned District Judge, Dhaka which was subsequently heard by the Additional District Judge, Bankruptcy Court, Dhaka who also after hearing the parties and considering the evidence passed the  judgment  and  decree  dated  21.05.2005  by  allowing  the appeal  and  thereby  setting  aside  the  Order  No.  28  dated 06.05.2004  so-original  judgment  and  decree  signed  on 12.05.2004 by the learned Senior Assistant Judge, Court No. 2, Dhaka and also sent the matter on remand for rehearing by the learned trial court. Being aggrieved the present petitioners filed this  revisional  application  challenging  the  legality  of  the impugned judgment of the learned appellate court below and this Rule was issued thereupon.

Mr. Shasti Sarker, the learned Advocate, appearing along with  the  learned  Advocate  Mr.  Mohammad  Mosarof  Hosen Sikder on behalf of the defendant-petitioner No. 1, submits that the  learned  Additional  District  Judge,  Dhaka  has  failed  to appreciate the facts and law involved in the case. As per the statements in the plaint, there is no cause of action for the suit and it is also barred under law as the learned court committed an error of law by sending the case back on remand relying upon an unexhibited  private  Salishnama  (n¡¢mpe¡j¡)  which  was  not admitted into evidence at all thereby committed an error of law which caused an error decision occasioning failure of justice, as such, the Rule should be made absolute.

The  learned  Advocate  further  submits  that  under  the Evidence Act documentary evidence is more valuable than the oral statement, thus, the learned trial court rejected the plaint for finding no cause of action in the case of the present opposite party within the provision of the Code of Civil Procedure, thus, the learned trial court committed no error of law by applying his judicial mind and considering the case of the plaintiff at its initial stage of the trial, as such, the learned trial court committed no error of law but the learned appellate court committed an error of law by allowing the appeal for retrial/rehearing of the original suit upon finding as to a Salish (n¡¢mp) was held before the local union parishad Cairannn and also the claim of the amount in the exchange of land, therefore, this court should interfere upon the impugned judgment passed by the learned appellate court below in order to make the Rule absolute.

The  present  Rule  has  been  opposed  by  the  present plaintiff-opposite party No. 1.

Mr. Mohammad Habibur Rahman, the learned Advocate, appearing for the present plaintiff-opposite party No. 1 submits that the present plaintiff-opposite party adduced and produced sufficient evidence by way of documents to prove its own case but the learned appellate court below technically avoided the plaintiff’s case, as such, the plaintiff could not get a judgment and decree on merit from the learned trial court which is a non- consideration of the facts and legal aspects. However, the learned appellate court below allowed the appeal and sent the matter back on remand lawfully, thus, this court should not interfere upon the impugned judgment and decree and the Rule is liable to be discharged.

The  learned  advocate  further  submits  that  there  were sufficient causes  of  action  which  have  been  described  in  the plaint in detail but the learned trial court misread and failed to apply his judicial mind, as such, rejected the suit by his judgment and decree passed upon an application under Order 7 rule 11 of the Code of Civil Procedure which have committed an error of law but the learned appellate court below properly considered the above matter by sending the matter back on remand for rehearing and deciding the matter on merit, as such, the Rule is liable to be discharged.

Considering the above submissions made by the learned Advocates  appearing  for  the  respective  parties  and  also considering the revisional application filed under section 115(1) of the Code of Civil Procedure along with the annexures therein, in particular, the impugned judgment and decree passed by the learned appellate court below and also perusing the documents adduced  and  produced  by  the  respective  parties  by  way  of depositions as PWs and DWs in the learned courts below which have been included in the lower courts records, it appears to me that the present opposite party No. 1, namely, Md. Jalal Ahmed, as the plaintiff filed the title suit claiming a declaration of title of the suit property and also cancellation of the deeds of Heba-Bill- Ewaj. It further appears that in the plaint described in detail as to the execution of an exchange deed with the present defendant- petitioner No. 1 on 10.05.2000 in order to get Tk. 8,00,000/- for the treatment of his wife.

I am surprised to see that the plaintiff-opposite party could execute a deed of exchange in return for such a huge amount instead of exchanging the property which is not believable and reliable evidence in support of the plaintiff’s case. Moreover, the claim of the plaintiff that the exchange deed was not acted upon because  no  money  was  paid  which  could  be  implemented because of any pending litigation of a C. R. Case. The question is the document for exchanging the land and a document for sale in return for money are 2 different pieces of evidence for the court of law which the plaintiff could not make different in order to prove the case.

Secondly,  it  further  appears  that  the  plaintiff  sought cancellation of 2 (two) Heba-Bill-Ewaj deeds which he himself identified by putting his own signature being an educated person but  subsequently  seeking  cancellation  of  such  deed  is  a contradictory  statement,  as  such,  the  learned  trial  court committed no error of law by applying his judicial mind and considering the plaint itself rejected on the basis of the no cause of action.

The learned Advocate for the plaintiff-opposite party made submission on similar and several occasions that all these deeds were  executed  on  good  faith  and  good  relationship  between/ among the parties. Under the provisions of the Evidence Act, the mental condition of the parties before the execution of a valid deed is more important evidence in order to prove the respective case.

I will now consider the judgment passed by the learned courts below. The learned trial court rejected the plaint by its Order No. 28 dated 06.05.2004 upon an application under Order 7 rule 11 of the Code of Civil Procedure finding the following manner:

…“These being the facts and circumstances, the plaint is liable to be rejected. On perusal of the record of this suit, I have found that the alleged instrument does not contain any such condition that the defendant No. 1 is to pay any amount of money to his counterpart (the plaintiff) in addition to the land he is to exchange with that of the plaintiff. So, the plaintiff’s claim is not document-based. As a party to the alleged instrument, the plaintiff cannot go beyond it.”…

However, the learned appellate court below allowed the appeal without considering the relevant facts for disposal of the suit thereby coming to a wrongful conclusion on the basis of the following findings:

…“AaHh, Ef­l¡š² B­m¡Qe¡l ®fË¢r­a Hhw h¡c£f­rl

BlS£ J Ešl M¡e CE¢eue f¢lo­cl ®Qu¡ljÉ¡e LaѪL Na 01.03.2002 Cw a¡¢l Ml p¡¢mne¡j¡l L¢f Hhw jq¡j¡eÉ EµQal

Bc¡m­al E­õ¢ÀMa l¦¢mw…¢m fkÑ¡­m¡Qe¡œ²­j HC ¢pÜ¡­¿¹ Efe£a qJu¡ k¡u ®k, ¢h‘ ¢ejÀ Bc¡ma BCeNa J OVe¡Na ¢hou p¢WLi¡ h

d¡lZ¡ m¡ I hÉbÑ qCu¡ ïj¡aÈL ¢pÜ¡¿¹ fËc¡e L¢lu¡ Re Hhw a¢LÑa Na 06.05.2004 Cw a¡¢l Ml 28 ew B cn à¡l¡ ®cx L¡x ¢hx BC el 7

B­c­nl 11 ¢euj Hl ¢hd¡e j­a h¡c£f­rl B¢ea ®j¡LŸj¡¢V M¡¢lS

Ll¡u eÉ¡u ¢hQ¡l ¢h¢OÀa qCu¡ Rz”…

After  examining  the  impugned  judgment  and  the documents of the lower court records I am of the opinion that the learned trial court committed no error of law by rejecting the plaint under the provision of Order 7 rule 11 of the Code of Civil Procedure  but  the  learned  appellate  court  below  without considering the plaint itself and the supporting documents for the case in the plaint the learned appellate court below committed an error  of  law,  therefore,  I  am  inclined  to  interfere  upon  the impugned judgment passed by the learned appellate court below.

Accordingly, I find merit in the Rule.

In the result, the Rule is hereby made absolute.

The judgment and decree dated 21.05.2005 passed by the learned Additional District Judge, Bankruptcy Court, Dhaka in the Civil/Title Appeal No. 220 of 2004 is hereby set aside.

The  interim  order  passed  by  this  court  at  the  time  of issuance  of  this  Rule  staying  the  operation  of  the  impugned judgment  dated  21.05.2005  passed  by  the  learned  Additional District Judge, Bankruptcy Court, Dhaka in the Title Appeal No. 220 of 2005 is hereby recalled and vacated.

The judgment and decree dated 06.05.2004 passed by the learned Assistant Judge, Court No. 2, Dhaka in the Title Suit No. 331 of 2002 is hereby upheld.

The concerned section of this court is hereby directed to send down the lower court records along with a copy of this judgment and order to the learned courts below immediately.