IN THE SUPREME COURT OF BANGLADESH

   HIGH COURT DIVISION

            (CIVIL REVISIONAL JURISDICTION)

CIVIL REVISION No. 667 OF 2015.

 Md. Abu Alam and another

            ...Petitioners.

-Versus-

 1(Ka) Farida Begum and others

  ....Opposite parties. Mr. Md. Moqbul Ahmed, Advocate

… for the petitioners

 None appears

… for the opposite parties

Heard and Judgment on: 2.09.2024.

   Present:

Mr. Justice Md. Badruzzaman.

This Rule was issued calling upon opposite party Nos. 1-5 to show cause  as  to  why  judgment  and  decree  dated  30.11.2014  passed  by learned Additional District Judge, 4th Court, Chattogram in Other Appeal No.  132  of  2007  allowing  the  appeal  and  sending  the  suit  back  on remand  for  fresh  trial  by  reversing  the  judgment  and  decree  dated 15.03.2007  passed  by  learned  Senior  Assistant  Judge,  Rawzan, Chattogram in Other Suit No. 206 of 2003 should not be set aside.

At the time of issuance of Rule on 16.3.2015 this Court stayed operation of the impugned judgment and decree for a period of 06 (six) months which was, subsequently, extended time to time.

Facts relevant, for the purpose of disposal of this Rule, are that the petitioners as plaintiffs instituted Other Suit No. 206 of 2003 in the Court  of  learned  Assistant  Judge,  Rawjan,  Chattogram  against  the opposite parties praying for a decree of declaration that registered sale deed No. 2814 dated 30.08.2003 was collusive, forged, fraudulent and not  binding  upon  the  plaintiffs  mainly  on  the  ground  that  the defendants got the impugned sale deed executed and registered from the plaintiffs upon threat and duress.

Defendant Nos. 1, 2 and 5-7 jointly contested the suit by filing written statements denying the material averments of the plaint and contending that the plaintiffs upon receiving the consideration money executed and registered the deed in question at their free will and after execution and registration of the deed, they have got possession of the suit  property  and  the  plaintiffs  filed  the  suit  only  for  harassing  the defendants.

During pendency of the suit, the plaintiffs filed an application under  Order  VI  rule  17  read  with  section  151  of  the  Code  of  Civil Procedure for amendment of the plaint proposing to introduce some facts and a prayer for a decree of cancellation of the deed in question which  was  allowed  by  the  trial  Court  vide  order  No.  35  dated 03.05.2006  and  the  plaintiffs  paid  ad  valurem  court  fees  due  to amendment  of  the  plaint.  But  the  plaint  was  not  amended  as  per proposed amendment.

During trial the plaintiffs adduced three oral witnesses and also produced documentary evidences which were marked as exhibits. The defendants did not adduce any oral or documentary evidence. The trial Court, upon considering the evidence and materials on record, decreed the suit vide judgment and decree dated 15.03.2007.

Being  aggrieved  by  said  judgment  and  decree,  the  contesting defendants preferred Other Appeal No. 132 of 2007 before the learned District Judge, Chattogram which was transferred to learned Additional District  Judge,  4th  Court,  Chattogram  for  disposal.  The  learned Additional District Judge, upon herring the learned Advocates for both the parties and considering the materials on record, allowed the appeal by judgment and decree dated 30.11.2014 by setting aside those of the trial Court and sent the suit back on remand to the trial Court directing to  incorporate  the  proposed  amendment  in  the  plaint  with  an opportunity to the defendants to file additional written statements and another opportunity to the parties to adduce further evidence.

Being aggrieved by said judgment and decree dated 30.11.2014 the plaintiffs have preferred this civil revision under section 115(1) of the Code of Civil Procedure and obtained the instant Rule.

None appears for the defendant-opposite parties to contest the Rule though, as per Office Note, the notice upon them has been duly served.

Mr.  Md.  Moqbul  Ahmed,  learned  Advocate  appearing  for  the petitioners  by  taking  me  to  the  revisional  application  as  well  as impugned judgment and decree passed by the Court of appeal submits that the Court of appeal committed an error of law in sending the suit back on remand because of the fact that it has got same jurisdiction as like as trial Court and as such, the appellate Court itself was competent to take additional evidence and dispose of the appeal on merit and accordingly, interference is called for by this Court.

I  have  heard  the  learned  Advocate,  perused  the  impugned judgment and decree, the judgment and decree passed by the trial Court  and  other  materials  available  on  record.  On  perusal  of  the impugned judgment it appears that the Court of appeal came to finding that the plaint was amended as per prayer of the plaintiffs by order of the  trial  Court  dated  30.05.2006  and  the  plaintiffs  filed  ad  valurem court fees in view of the amendment  but the amendment was not incorporated in the plaint. The Court of appeal also held that the trial Court  only  passed  decree  of  mere  declaration  though  as  per amendment  the  plaintiffs  prayed  for  cancellation  of  the  deed  in question.

It appears that by the amendment, the plaintiffs only introduced an additional prayer for cancellation of the deed in question and P.W 1 deposed on behalf of the plaintiffs and prayed for cancellation of the disputed deed. Three P.Ws were examined on behalf of the plaintiffs Though defendant Nos. 1, 2, 5-7 filed joint written statements but did not adduce any evidence to prove their case and upon considering the evidence  and  materials  on  record,  the  trial  Court  decreed  the  suit declaring the disputed deed as null, void and not binding upon the plaintiffs but did not give relief as per amended plaint, cancelling the deed in question. The appellate Court found that the plaintiffs could not prove their case as they could not adduce any evidence in regards of duress and threat made by the defendants in obtaining the deed in question. Neither of the parties filed any application for sending the suit back on remand to the trial Court and to adduce additional evidence. But  the  appellate  Court  vide  impugned  judgment  set  aside  the judgment of the trial Court and sent the suit back on remand to the trial Court directing to incorporate the amendment in the plaint with an opportunity to the defendants to file additional written statements and another  opportunity  to  the  parties  to  adduce  further  evidence.  It appears that the Court of appeal gave gratuitous relief to the parties which they did not pray at all. Since the parties did not pray for sending the suit back on remand and file any application for taking additional evidence, the Court of appeal should have dispose of the appeal on merit on the basis of the evidence and materials available before it.

It is settled principle of law that a remand order cannot be passed to enable a party to adduce fresh evidence which he failed to do during hearing of the suit or to give fresh opportunity to defeated litigant who has lost in a full and fair trial. Where the trial  court, after framing  issues and giving the parties opportunity to adduce evidence, disposes

of the suit on merits, the appellate Court cannot remand the case back to the trial court for disposal of the suit on merits by giving opportunity to the parties to adduce further evidence. Moreover, under section 107 of the Code of Civil Procedure the appellate Court clothed with all the powers of a trial Court.

In view of the above I am constrained to hold that the Court of appeal committed an error of law resulting in an error in sending the suit back on remand. It should have disposed of the appeal on merit on the basis of the evidence already on record. 

Accordingly, I find merit in this Rule.

In the result, the Rule is made absolute, however without any order as to costs.

The  impugned  judgment  and  decree  passed  by  the  Court  of appeal are set aside.

The order of stay granted earlier by this Court is hereby recalled and vacated.

The learned Additional District Judge, 4th Court, Chattogram is directed to dispose of Other Appeal No. 132 of 2007 on merit on the basis of the evidence available on record by serving fresh summons upon  the  parties  and  conclude  the  hearing  of  the  appeal  as expeditiously as possible, preferably within 06 (six) months from the date of receipt of the copy of this judgment.

Send  down  the  L.C.R  along  with  a  copy  of  this  judgment  to learned Additional District Judge, 4th Court, Chattogram at once.

(Justice Md. Badruzzaman)