IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 578 OF 2022

IN THE MATTER OF:

An  application  under  section  115(4)  of  the Code of Civil Procedure. (Against Order)

-And-

IN THE MATTER OF:

Md. Abdul Ali

--- Defendant-Petitioner. -Versus-

Most. Anowara Begum and others

--- Plaintiff-Opposite Parties. Mr. Mohammad Zahirul Amin, Advocate

--- For the Defendant-Petitioner. Mr. Abdul Wahab Dewan Kajol, Advocate

---For the Plaintiff-Opposite Parties.

Heard on: 16.07.2023 and 20.07.2023. Judgment on: 20.07.2023.

At the instance of the present defendant-petitioner, Md. Abdul Ali, this Rule was issued upon a revisional application filed under section 115(4) of the Code of Civil Procedure calling upon the opposite parties to show cause as to why the impugned judgment  and  order  dated  02.11.2021  passed  by  the  learned District Judge, Joypurhat in the Civil Revision No. 32 of 2019 dismissing the revision and thereby affirming the order dated 14.11.2019 passed by the learned Senior Assistant Judge, Sadar,

Joypurhat  in  the  SCC  Suit  No.  02  of  2009  rejecting  the application  filed  by  the  defendant  under  section  45  of  the Evidence Act for examination of signature of the defendant by handwriting expert should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that  the  predecessor  of  the  opposite  parties  as  the  plaintiff instituted the SCC Suit No. 02 of 2009 in the court of the learned Senior Assistant Judge, Sadar, Joypurhat for eviction and due rent against the petitioner in respect of the shop ( two rooms) described in the schedule of the plaint. The plaint contains that the suit property belonged to the plaintiff and he rented 2 (two) rooms to the one Bhupendra Nath Sarker. The said Bhupendra Nath Sarker became a defaulter to pay the rent. The landlord- plaintiff filed the Other Suit No. 132 of 1979 for recovery of the rent.  The  suit  was  decreed  on  a  compromise  on  15.01.1981. Subsequently, the plaintiff again rented the said 2 (two) rooms to the  tenant-defendant-petitioner  but  after  December  2006  the tenant again became a defaulter. However, earlier on 21.09.1997 a Bainapatra was executed by both parties and the defendant- tenant paid a major amount of Baina money to purchase the property  (2  rooms  shop).  But  the  landlord-plaintiff  received money  but  failed  to  execute  a  sale  deed  which  has  been described in the written statement filed by the present-defendant- petitioner.  In  the  said  suit  the  present  petitioner  filed  an application for a handwriting expert opinion as to his signature in the said tenant agreement.

After  hearing  the  parties  the  learned  Senior  Assistant Judge, Sadar, Joypurhat passed an order on 14.11.2019 rejecting the  said  application  for  handwriting  expert  opinion.  Being aggrieved  the  present  defendant-petitioner  filed  the  Civil Revision  No.  32  of  2019  before  the  learned  District  Judge, Joypurhat  who  also  concurrently  found  against  the  present petitioner. Being aggrieved challenging the said impugned order of  the  learned  District  Judge,  Joypurhat  filed  this  revisional application under section 115(4) of the Code of Civil Procedure and the Rule was issued thereupon.

Mr.  Mohammad  Zahirul  Amin,  the  learned  Advocate, appearing  for  the  defendant-petitioner  submits  that  both  the learned courts below failed to consider that since the plaintiff claimed that there was an agreement for rent between the parties and the instant petitioner categorically denied the said signature upon the agreement and claimed that the agreement was forged and  in  such  a  situation  it  would  be  just  and  proper  that the signature  of  the  petitioner  in  the  rent  agreement  should  be examined by the handwriting expert for proper appreciation and disposal of the suit, as such, the impugned order is liable to be set aside and the Rule should be made absolute.

The present Rule has been opposed by the present opposite parties.

Mr. Abdul Wahab Dewan Kajol, the learned Advocate, appearing on behalf of the present opposite parties submits that the present petitioner as the defendant filed an application for obtaining an expert opinion of the handwriting due to Bainanama executed by and between the parties on 10.03.1981 which was signed  by  the  present  tenant-defendant-petitioner  and  the plaintiff-opposite parties but this alleged application was filed at the late stage of rent suit in order to delay the proceeding with a malafide intention, as such, the learned trial court and the learned appellate  court  below  concurrently  and  rightly  rejected  the application, as such, no interference is called for by this court at this stage and the Rule is liable to be discharged.

Considering the above submissions made by the learned Advocates appearing for both parties and also considering the revisional application filed by the present defendant-petitioner under section 115(4) of the Code of Civil Procedure along with the annexures therein, in particular, the impugned order dated 02.11.2021 passed by the learned District Judge, Joypurhat, it appears to me that the predecessor of the present opposite parties as the plaintiff as the owner of the suit shop situated at Joypurhat containing that the shop (two rooms) which was rented to the defendant-petitioner on 10.03.1981. It further appears that the predecessor of the present opposite parties as the plaintiff filed the suit for defaulting to pay the rent, as such, there was a case by the landlord against the tenant. It further appears that the defendant-petitioner  claimed  that  there  was  a  Bainanama executed  by  the  predecessor  of  the  opposite  parties  as  the plaintiff in order to sell the shop to the defendant-petitioner. The instant Rule was issued upon a claim that the present predecessor of  the  plaintiff-opposite  parties  never  executed  a  tenancy agreement on 10.03.1981 and never signed any such document. The petitioner as the applicant filed an application in the learned trial court at the late stage of the suit, as such, the learned trial court rejected the application for obtaining an expert opinion as to the signature on the tenancy agreement.

I  have  noticed  that  the  present  petitioner  filed  this application  for  expert  opinion  when  the  learned  trial  court ordered being No. 80 on 14.11.2019 which is an unusual step by the present petitioner with an intention to delay the proceeding. The  learned  revisional  court  below  concurrently  found  and dismissed the application on reasonable grounds.

This Rule was obtained by the petitioner by impugning the judgment  and  order  passed  by  the  learned  District  Judge, Joypurhat who concurrently mentioned the civil revision filed by the defendant-petitioner that the petitioner’s application was filed with a malafide intention. However, I am inclined to allow the present defendant-petitioner to obtain an expert opinion at his own cost initiative after an order is passed by the learned trial court.

Accordingly, the Ruleis hereby disposed of. However, the Rule is hereby disposed of with the following directions:

The  present  defendant-petitioner  is  hereby  directed  to arrange an expert to examine his signature on the said tenancy agreement dated 10.03.1981 and he has to bear all the expenses for  obtaining  such  expert  opinion,  if  the  defendant-petitioner fails to obtain such arrangement of expert opinion within the stipulated period of time stated below the learned trial court must continue and conclude the trial of the suit within the above 3 (three) months from the receipt of this judgment and order.

The  defendant-petitioner  is  also  directed  to  file  an application before the learned trial court afresh within 3 (three) days from the date of receipt of this judgment and order and the learned trial court would be ordered such an expert opinion by initiatives and steps of the petitioner within another 15 (fifteen) days from the date of the order to be passed by the learned trial court and to submit the same in the learned trial court in order to conclude the hearing and dispose of the suit within 3 (three) months from the date of the receipt of this judgment and order.

The  interim  order  passed  by  this  court  at  the  time  of issuance of this Rule staying all further proceedings of SCC Suit No. 02 of 2009 which is now pending in the court of the learned Senior Assistant Judge, Sadar, Joypurhat for a period of 6 (six) months and the same was extended from time to time i. e. lastly the  same  was  extended  till  disposal  of  the  Rule  are  hereby recalled and vacated.

The concerned section of this court is hereby directed to communicate  this  judgment  and  order  to  the  learned  Senior Assistant Judge, Sadar, Joypurhat immediately.