District: Cumilla

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

   Present

Mr. Justice Sardar Md. Rashed Jahangir

Civil Revision No. 1159 of 2023

In the matter of :

Afia Khatun and others

… Petitioners

-Versus-

Amena Begum and others

…Opposite parties

Mr. Muhammad Rafiul Islam, Advocate

…For the petitioners

Mr. Prahlad Debnath, Advocate

    …For the opposite party No. 1

Heard on: 14.11.2024 and 27.11.2024 Judgment on: 04.12.2024

Rule was issued on an application under section 115(1) of the Code of Civil Procedure calling upon the opposite parties to show cause as to why the judgment and order dated 30.01.2023 passed by the Additional District Judge, Forth Court, Cumilla in Civil Appeal No.130 of 2020 arising out of Title Suit No.99 of 2017, allowing the application to examine additional witnesses,

should not be set aside and/or such other or further order or orders as to this Court may seem fit and proper.

The present opposite party No.1 as plaintiff filed Title Suit No.99 of 2017 before the Assistant Judge, Borura, Cumilla for declaration of title in respect of the scheduled property to the plaint.  On  conclusion  of  hearing  the  suit  was  dismissed  by judgment  and  decree  dated  31.10.2019  on  contest  against  the defendant  Nos.1-3,  5,  8-10  holding  that  the  plaintiff  failed  to prove her title, interest and possession in the suit land.

Having been aggrieved by the judgment and decree dated 31.10.2019  passed by  the  Assistant  Judge,  Borura,  Cumilla  in Title  Suit  No.99  of  2017,  the  plaintiff  preferred  Title  Appeal No.130  of  2020  before  the  District  Judge,  Cumilla.  The  said appeal was transferred to the Court of Additional District Judge, Forth Court, Cumilla for hearing. On 30.01.2023, the plaintiff- appellant filed as well as 2(two) applications, one is under Order VI, rule 17 of the Code of Civil Procedure for amendment of plaint and another is for additional evidence to examine 2(two)

additional witnesses on behalf of the plaintiff-appellant. And 3rd party also filed an application under Order I, rule 10 of the Code of Civil Procedure to be added as respondents.

Learned Additional District Judge on the same day i.e. on 30.01.2023 took the applications for hearing and by her order allowed all the applications.

On being aggrieved by and dissatisfied with the order dated 30.01.2023, so far it relates to allowing the application to examine additional witnesses, the defendant-respondent preferred this civil revisional application and obtained the Rule.

Learned Advocate Mr. Muhammad Rafiul Islam appearing on behalf of the petitioner submits that the Court of appeal below committed  an  error  of  law  in  allowing  the  application  for examining  additional  witnesses  on  behalf  of  the  plaintiff- appellant failing to consider that the application is nothing but to provide an opportunity to fill up her lacuna. He next submits that Order XLI, rule 27 read with the rule 29 of the Code of Civil Procedure  provides  that  learned  Judge  of  appellate  Court concerned in allowing the application for additional evidence is to specify the reasons thereof and also is to specify the points to which  the  evidence  is  to  be  confined,  limiting  the  scope  of producing/advancing the evidence, but in the present case learned Judge of the appellate Court below failed to discharge the said mandatory obligation in allowing the application for examining additional witnesses and thereby committed error of law in an error in the decision occasioning failure of justice.

In support of the submission learned Advocate cited the case of Daulat Chandra Gope alias Mrityunjoy Gope and others Vs.  Mosammat  Monowara  Begum  and  another  reported  in  16 BLD(AD) 251, wherein it was categorically held that in allowing an application under Order XLI, rule 27 of the Code of Civil Procedure  the  order  of  appellate  Court  below  is  must  be  a speaking one assigning the reason and specifying the scope of providing  additional  evidence.  It  was  also  held  that  it  is  the appellate  Court  who  is  to  feel  requirement  of  such  additional evidences to arrive at a just decision and in view of above, he prayed  for  making  the  rule  absolute  upon  setting  aside  the impugned order, so far it relates to allowing the application for examining additional witnesses.

On the other hand, Mr. Prahlad Debnath, learned Advocate for the plaintiff-appellant-opposite party submits that the Court of appeal below is quit competent to entertain an application for additional evidence under Order XLI, rule 27 read with section 107(i)(d) of the Code of Civil Procedure and it is the discretion of the appellate Court below to allow the application for additional evidence regarding any particular point in order to enable him to pronounce  a  proper  judgment  and  for  disposal  of  the  suit effectively. He next submits that under rule 27 (1)(b) of Order XL of the Code, the Court of appeal below in an appropriate case may allow additional evidence for the ends of justice and to enable it to arrive at a just verdict. Under the provision of section 107, the appellate Court has the similar power that of the trial Court in taking evidence in an appropriate case. He further submits that through the application dated 30.01.2023, the appellant-opposite party  categorically  assigned  the  reason  for  taking  additional witness and although the Court of appeal below did not specify the reason in allowing the application, but in fact, it was being satisfied  regarding  the  application  filed  by  the  appellant  and thereby  allowed  the  same.  In  support  of  the  submission  Mr. Debnath referred 2(two) judgments of the Apex Court, the case of AK  Azad  and  another  Vs.  Mostafizur  Rahman  and  another reported in 18 BLC(AD) 78 and the case of Harunur Rashid and others Vs. Yarun Nissa and others reported in 23 BLC(AD) 132 and in view of above, he prayed for discharging the Rule.

Heard learned Advocates for both the parties, perused the revisional application together with the annexures, supplementary affidavit and the counter affidavit, having gone through the cited judgments and the provision of law.

It  appears  that  section  107(1)(d)  of  the  Code  of  Civil Procedure  provides  that  subject  to  the(such)  conditions  and limitations as may be prescribed, an appellate Court shall have power to take additional evidence or to require such evidences to be taken; it is further provided under sub-section (2) of section 107 that the appellate Court shall have the same power and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on the Courts of original jurisdiction in respect of suits instituted therein.

Meaning thereby, the appellate Court shall have almost the same authority to take evidence within the meaning of additional evidence  subject  to  the  prescribed  limitation  under  the  First Schedule  to  the  Code  of  Civil  Procedure,  in  particular,  under Order XLI, rule 27 to 29. Under rule 27, the scope of producing additional evidences having been specified and limited mainly on 2(two) reasons, the first one, if the trial Court has improperly refused to admit any evidence which ought to have been admitted by it or other one, where the appellate Court it self requires such evidence either to enable it self to pronounce just judgment or for any other substantial cause. At the same time, sub-rule (2) of rule 27 further provides that the appellate Court is to record the reason of allowing additional evidence and under rule 29, it is stipulated that the appellate Court shall have to specify the point to which the additional evidence is to be confined and shall record on its proceedings, the point so specified. Under the case in hand, the plaintiff-appellant filed an application on 30.01.2023, purportedly under Order XLI, rule 27 read with section 107 of the Code of Civil Procedure for allowing the plaintiff-appellant to examine two additional witnesses namely, Md. Ali Akbor, son of Borhan Uddin and Abul Khair, son of Keramot Ali of Dalua under Police Station-  Barura,  District-  Cumilla,  on  the  stipulation  that  her engaged Advocate of the trial Court below failed to produce or examine any witness in support of the plaintiff’s possession and as such,  the  aforesaid  2(two)  witnesses  who  reside  in  the  same locality of plaintiff may be allowed to depose in favour of the plaintiff- appellant to support her possession over the suit land. The  Court  of  appeal  below  without  assigning  any  reason  or examining the contemplation of Order XLI, rules 27 and 29 read with  section  107(1)(d)  allowed  the  application.  For  ready reference the order No. 29 dated 30.01.2023 of the appellate Court below allowing the application is reproduced herein below:

“Bf£−m¾V fr ¢g¢l¢Ù¹k¤−š² HLgcÑ L¡NS¡¢c c¡¢Mmf§hLÑ Afl HL clMÙ¹ à¡l¡ h¢ZÑa L¡l−e j¡e£a p¡r£−cl j¡eÉ Ll¡l fË¡bÑe¡ L¢lu¡−Rez Bf¢špq L¢f S¡¢lz ö¢em¡jz clMÙ¹ j”¤l Ll¡ qC−m¡z”

The order of the appellate Court below did not show any reason, except referring the grounds taken in the application dated 30.01.2023.  Wherein  the  only  reason  specified  is  that  learned Advocate failed to produce any evidence in support of plaintiff’s possession.  

The  application  dated  30.01.2023  does  not  reveal  any satisfactory reason or explanation for the failure of the plaintiff to examine them although the aforesaid 2(two) witnesses reside in the same locality.

In the case of Mosharraf Hossain and others Vs. Ali Akbor Sarker and others reported in 1 BLC 283, the plaintiff-appellant of the case filed an application under Order XLI, rule 27 of the Code of  Civil  Procedure  for  taking  additional  evidence  of  one  Md. Siddiqure Rahman, the attesting witness of Bainapatra along with the some documents as the said witness was at Singapur and away from the country at the relevant time of trial of the suit. The said

application  was  received  with  objection  by  the  defendant- respondents  and  ultimately,  after  hearing  learned  Additional District  Judge  on  20.01.1993  allowed  the  application  without assigning  any  reason  what  so  ever.  The  said  witness,  Mr. Siddiqure Rahman was examined and also cross-examined (by the respondents on compulsion). Thereafter, the contested respondent Nos. 2 and 3 filed an application for cancellation of the additional evidence of the witness, Siddiqure Rahman, already recorded in Court,  with  the  allegation  that  the  plaintiff-appellant  failed  to produce the passport and other documents of Siddiqure Rahman to prove that at the relevant time of trial he was at Singapur and away from the country. After hearing learned Additional District Judge, Cumilla rejected the application. Challenging the aforesaid 2(two) orders, one is allowing the additional evidences and other one is rejection of application for cancellation or expunging the additional  evidences  recorded  in  Court,  defendant-respondents filed a revisional application under section 115(1) of the Code of Civil Procedure before the High Court Division and a Division Bench of this Court by its judgment held that the order of the

Additional District Judge is not at all a speaking order and the same does not show that the Judge concerned at all applied his judicial  mind  and  examined  the  requirement  of  additional evidence  of  the  witness  concerned  in  accordance  with  the provision of Order XLI rule 27 of the Code of Civil Procedure whether it was bonafide or not.

It was also found that on behalf of the plaintiff no attempt was made in the trial Court to produce or examine any attesting witness  of  Bainapatra  and  finally  the  Court  found  that  the plaintiff-appellant-opposite party (in the said suit) at the appellate stage made an attempt to fill up and patch up the lacuna in his suit by filing the application for additional evidence at a belated stage and learned Additional District Judge without applying his mind arbitrarily  and  carelessly  allowed  the  application  without compliance of the requirement of the provision of Order XLI, rule 27 of the Code of Civil Procedure.

In the case of Sunil Krishna Banik and others Vs. Kailash Chandra Saha and others reported in 36 DLR(AD) 210. Their Lordships  of  the  Apex  Court  referring  to  a  judgment  of  the Judicial  Committee  of  the  Privy  Council  (Parsotim  -Vs-  Lal Mohar reported in 58 I.A. 254) held that :

"It is only where the appellate Court "requires" it (i.e. finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce  judgment,  or  for  any  other  substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the  sub-clause.  The  legitimate  occasion  for  the exercise of this discretion is not whenever before the appeal  is  heard  a  party  applies  to  adduce  fresh evidence, but "when on examining the evidence as it stands,  some  inherent  lacuna  or  defect  becomes apparent.”

………………………………………

“Wherever,  the  Court  adopts  this  procedure  it  is bound by rule 27(2) to record its reasons for so doing and under r. 29 must specify the points to which the evidence  is  to  be  confined  and  record  on  its proceedings the point so specified.”

…………………………….

“The provision of section 107, sub-section 1(d) of the Civil Procedure Code as elucidated by Order XLI, rule 27 are clearly not intended to allow a litigant who  has  been  unsuccessful  in  the  lower  Court  to patch  up  the  weak  part  of  his  case  and  fill  up omissions in the appellate Court.”

Under  the  case  in  hand,  the  plaintiff-appellant  in  his application claimed that due to mistake of her learned Advocate he could not examine any witness in support of her possession.

We have examined the judgment and order of the trial Court (Assistant  Judge,  Barura,  Cumilla),  wherein  learned  Assistant Judge categorically held that the plaintiff failed to prove her title, interest and possession over the scheduled land and thus, she is not entitled to get any remedy in the present suit.

It is not the case of the plaintiff-appellant-opposite party that  with  due  diligence,  she  failed  to  examine  the  witness  or produce necessary witness or evidence at the time of trial. Thus, in view of the discussions made in above, she should not be allowed to fill up or patch up his weakness, i.e. the lacuna in the original suit  before  appellate  Court  by  allowing  the  application  under Order XLI, rule 27 of the Code of Civil Procedure.

In the premise above, this Court finds merit in the Rule. Accordingly, the Rule is made absolute without any order

as to cost.

The order dated 30.01.2023, so far it relates to allowing the application  for  additional  evidence  by  examining  2(two) additional  witnesses  namely,  Ali  Akbor  and  Abul  Khayer  is hereby set aside.

The order of stay granted at the time of issuance of the Rule is hereby recalled.

Communicate the judgment and order at once.

Obaidul Hasan/B.O.