IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.6677 OF 2023

In the matter of:

An application under Section 115(1) of the Code of Civil Procedure.

And

Sabir Ahmed and others

.... Petitioners

-Versus-

Custodian vested and Non-resident Property, Chandpur

.... Opposite party

Mr. Sherder Abul Hossain, Advocate

.... For the petitioners.

Mr. Md. Moshihur Rahman, Assistant Attorney General

…. For the opposite party.

Heard on 10.11.2024 and Judgment on 11.11.2024.

This Rule was issued calling upon the opposite party No.1 to show  cause  as  to  why  the  impugned  judgment  and  order  dated 31.08.2023 passed by the learned Additional District Judge, 1st Court, Chandpur in Title Appeal No.50 of 2004 by striking out of the written statements dated 28.02.1999 filed by the defendant  respondent No.1 under the provision of Order 11 Rule 21 of the code of Civil Procedure should not be set aside and or pass such other or further order or orders as to this Court may seem fit and proper.

Facts in short are that the opposite party as plaintiff filed about suit for declaration that the registered kabala deed dated 18.06.1972 allegedly executed by defendant No.2 Amulla Krishno Roy Chowdhury in favor of defendant No.1 Abdul Hakim showing transfer of ‘Kha’ schedule land is illegal, forged, fraudulent and not binding upon the plaintiff. Above suit was dismissed on contest by the trial Court.

Being aggrieved by above judgment and decree of the trial Court plaintiff  preferred Title  Appeal  No.46  of 1998  to  the District Judge, Chandpur which was transferred to the Court of Additional District Judge, 1st Court, Chandpur for hearing and disposal .

In above appeal the appellant submitted a petition on 27.02.2019 for  directing  the  respondent  for  production  in  Court  of  registered kabala Deed No.7175 dated 21.06.1972 allegedly executed by defendant No.2 in favor of defendant No.1.

The learned Additional District Judge allowed above petition and directed the respondent for production of above document. But the respondent did not produce above document in Court and the learned Additional  District  Judge  struck  out  the  written  statement  of  the defendant under Order 11 Rule 21 of the Code of Civil Procedure.

Being  aggrieved  by  and  dissatisfied  with  above  order  of  the learned  Additional  District  Judge  above  respondent  as  petitioner moved to this Court and obtained this Rule.

Mr. Sherder Abul Hossain, learned Advocate for the petitioners submits that in compliance of the order of the Court of Appeal below the petitioners brought above registered kabala deed No.7175 dated 22.06.1972 executed by defendant No.2 in favor of defendant No.1 to court and showed above document to the learned Additional District Judge. Due to lack of confidence as to the safety of documents in above Court  he  did  not  produce  above  document  in  Court.  The  learned Advocate frankly concedes that if he is given an opportunity he would produce above document within 1(one) month to the Court of Appeal below for the inspection of the learned Judge and the appellant.

On the other hand Mr. Md. Moshihur Rahman, learned Assistant Attorney General for the opposite party submits that the genuinity or forgery of above registered kabala deed No.7175 dated 22.06.1972 was the  sole  issue  in  the  above  appeal.  At  trial  the  defendant  did  not produce above document in original. But the defendant claimed that above original document was in his possession. As such the learned Additional  District  Judge  rightly  directed  the  respondent  for production  of  above  document  but  the  respondent  deliberately disobeyed above order and did not produce above document in Court. As  such  the  learned  Additional  District  Judge  lawfully  passed  the impugned order under Order 11 Rule 21 of the Code of Civil Procedure which calls for no interference

I have considered the submissions of the learned Advocates for respective parties and carefully examined all materials on record.

At the very outset it needs to be mentioned that order 11 of the Code of Civil Procedure provides for discovery and inspection of facts and  documents  before  recording  of  evidence.  Above  provisions  are rarely utilized at appeal although appeal is considered as continuation of  the  trial.  In  a  civil  litigation  parties  are  required  to  prove  their respective cases by legal evidence. If any party fails or deliberately omits to produce a document to prove his claim he would suffer the consequence. A party to a suit shall determine what evidence he would produce in Court to prove his claim and the other party cannot dictate him in his regard.

The defendant did not produce and prove above original kabala deed No.7175 dated 22.06.1972 at trial. The trial could draw an adverse presumption  against  the  defendant  for  non  production  of  above document since the defendant claimed that above document was in his possession.  But  instead  the  learned  Judge  of  the  trial  Court  most illegally admitted a photocopy of above kabala deed into evidence and marked the same as Exhibit No.Gha. The learned Additional District Judge could keep the above photocopy of above document outside of consideration  if  the  petitioner  failed  to  produce  above  original document.  An  order  of  striking  out  the  written  statement  before recording of evidence for disobediences of order of the Court by the defendant is an effective and lawful order. But in an appeal such an order bears no cause consequence since on the basis of the written statement  defendants  evidence  had  been  recorded  and  trial  was concluded.

Since  the  learned  Advocate  for  the  petitioners  has  agreed  to produce above original document for the inspection and comparison by the learned Additional District Judge and the appellant, in my view the ends of justice will be met if the impugned order is set aside and the petitioner is given one month time for production of above original document to the Court of appeal below.

In above view of the materials on record I find substance in this revisional  application  under  section  115(1)  of  the  Code  of  Civil Procedure and the Rule issued in this connection deserves to be made absolute.

In the result, the Rule is hereby made absolute.

The impugned judgment and order dated 31.08.2023 passed by the  learned  Additional  District  Judge,  1st  Court,  Chandpur  in  Title Appeal No.50 of 2004 is set aside. 

The petitioner is directed to produce original kabala deed No.7175 dated 22.06.1972 allegedly executed by defendant No.2 in favour of defendant No.1 to the Court of Appeal below within 01(one) month from the date of receipt of this order and the learned Additional District Judge shall proceed with the disposal of the above appeal on merit expeditiously within a period of 6(six) months.

However, there is no order as to costs.

MD. MASUDUR RAHMAN     BENCH OFFICER