Evidence Act
[I of 1872]
Section 85–
A power of
attorney executed by a person resident in Bangladesh and registered is a legal
document.
Manindra
Mohan vs Ranadhir 38 DLR 240.
Section 85–
Written
statement filed under the authority of
power–of–attorney executed and duly registered is duly presented in Court.
Manindra
Mohan vs Ranadhir 38 DLR 240.
Section 85–
Power-of-attorney
though not authenticated by notary public, but when it is duly executed and
registered, it is a valid document acceptable in law.
Manindra
Mohan vs Ranadhir 38 DLR 240.
Section 85–
Power of
attorney must be executed according to the provision of section 85 of the Act
otherwise a person holding a power of attorney is not legally permitted to
represent his principal under Order III rule 2(a) of the Code.
Ramesh
Chandra Chowdhury @ Das vs Naresh Chandra Das @ Chowdhury 52 DLR 227.
Section 85–
The power of
attorney, not executed before, and authenticated by a notary public or any
representative of the foreign mission, is not admissible in evidence.
Shah Alam (Md)
vs Abul Kalam and others 54 DLR 276.
Section 88 & 114(c)–
Where
judicial or official act is shown to have been done it is presumed to have been
rightly and regularly complying with necessary requirements.
Akhtar
Hossain vs Government of Bangladesh & ors. 45 DLR 651.
Section 91–
Reconveyance–On
the face of registered instrument and in the absence of any contemporaneous
written instrument, the oral evidence is not at all sufficient to hold that
there was any agreement between the parties for reconveyance of the suit land.
The established rule of evidence to be relied is that oral evidence is
inadmissible for the purpose of asserting the intention of the parties in the
face of the written instrument.
Budhiswar
Biswas vs Akbar Ali Sheikh 43 DLR 183.
Section 91–
Evidence of
terms of contract –Parties in the contract are bound to fulfil the terms of the
contract specifically. If they fail to do so, the Court will pass a decree for
specific performance of the contract.
BCIC vs
Grand Basia Company Ltd 43 DLR 256.
Section 91–
Oral
testimony contrary to order recorded by the Court in due course of business
cannot be relied on unless it could be shown that the same was obtained by
practising fraud upon the Court.
Afsaruddin
Sardar (Md) vs Md Wazed Ali Sarder 47 DLR 595.
Section 91–
While
deciding the application for preemption, the Court cannot go behind the
intentions of the parties in executing the deed of the transfer. Furthermore,
any evidence to vary the terms of such deed is also barred under the provisions
of section 91 of the Evidence Act.
Sazeda
Khatun vs Asad Ali and others 53 DLR 563.
Section 91–
Since the
Hukumnama shows that Firoz is the only recipient of the land oral evidence to
prove that the same is not correct cannot be allowed.
Abu Ashed
Bhuiyan and others vs Abu Taher Bhuiyan and others 54 DLR 209.
Section 91–
While
deciding an application for preemption, the Court cannot go behind the
intentions of the parties in executing the deed of the transfer. Any evidence
to vary the terms of such deed is barred under the provisions of section 91 of
the Evidence Act.
Sazeda
Khatun vs Asad Ali and others 54 DLR 285.
Sections 91 and 92–
When the
intention in executing a document is not what is stated in the document itself
but is something else–this fact may be proved–Bar of sections 91 and 92,
Evidence Act, cannot be invoked in circumstances like this.
In such
cases extrinsic evidence would be admissible to prove that a document which is
apparently a deed of gift or a sale with an agreement for re–sale is· in fact
a deed of mortgage.
Jaha Baksha
Par vs Fazle Karim Biswas 37 DLR 87.
Sections 91 and 92–
What
sections 91 and 92 provide–It is an established rule of evidence that oral
evidence is inadmissible for the purpose either of construing terms of a
document or of ascertaining the intention of the parties thereto.
Feroza Majid
vs JB Corporation 39 DLR (AD) 78.
Section 92–
In view of
the provision of section 92, a deed of sale cannot be treated as a
mortgage–deed and intention to treat as a mortgage deed cannot also be
permitted.
Feroza Majid
vs JB Corporation 39 DLR (AD) 78.
Section 92–
Oral
extraneous evidence to contradict the terms of the contents of a document is
inadmissible under section 92 of the Evidence Act.
Feroza Majid
vs JB Corporation 39 DLR (AD) 78.
Section 92–
Although
oral evidence contradicting the contents of a document is not generally
admitted, such evidence is admissible in exceptional circumstance when the
validity of the document itself on the ground of fraud is in issue.
Tuglak Khan
vs Sultan Nasiruddin 45 DLR 615.
Section 92–
Oral
evidence when inadmissible–It is surprising to notice that the subordinate
Judge could be oblivious of the provision of law and decide a question of fact
on the basis of inadmissible oral evidence of no worth at all contrary to
admitted documentary evidence on record and could also decide the question of
fact without consideration of the contents of the relevant documentary
evidence.
Pragati
Industries Ltd vs Shahida Khatun 43 DLR 429.
Section 92–
Reconveyance–
On the face of registered instrument and in the absence of any contemporaneous
written instrument, the oral evidence is not at all sufficient to hold that
there was any agreement between the parties for reconveyance of the suit land.
The established rule of evidence to be relied is that oral evidence is
inadmissible for the purpose of asserting the intention of the parties in the
face of the written instrument.
Budhiswar
Biswas vs Akbar Ali Sheikh 43 DLR 183.
Section 92–
Written
terms of the contract cannot be altered or varied by oral evidence.
Serajul
Islam (Md) vs Binoy Bhusan Chakraborty and others 47 DLR 248.
Section 92–
There is
nothing in section 92 of the Evidence Act to prevent the admission of oral
evidence to prove that a mortgage has been discharged partly by payment and
partly by release of debt.
Tafzal Ahmed
Contractor vs Abdur Rahim and others 48 DLR (AD) 94.
Section 94–
Evidence of
terms of contractParties in the contract are bound to fulfil the terms of the
contract specifically. If they fail to do so, the Court will pass a decree for
specific performance of the contract.
BCIC vs
Grand Basia Company Ltd 43 DLR 256.
Section 101–
Onus of
proof–It is for the defendant to prove that the disputed document was executed
on the purported date–Mere assertion in the written statement cannot be treated
as evidence–Document being between two brothers registered at a different SubRegistrar’s
office and attesting witnesses being close relations of the recipient, there
are strong circumstances in favour of collusion.
Haji Karamat
Ali Master vs Lehajuddin Talukder 41 DLR 447.
Section 101–
The initial
onus lies on the plaintiff to prove his title. [32 DLR (AD) 29 distinguished].
Abani Mohan
Saha vs Asstt. Custodian 39 DLR (AD) 223.
Section 101–
Burden of
proof lies on the person who asserts that a fact exists.
Haque
Brothers vs Shamsul Huq 39 DLR 290.
Section 101–
Disbelief of
the defence case ipso facto does not make the plaintiff’s case believable. Even
in the case of an ex parte disposal of a suit, the court is required to come to
a finding on assessment of the materials that the plaintiff has been able to
prove his case.
Sheikh
Salimuddin vs Ataur Rahman 43 DLR 18.
Section 101–
The
defendant took the ground that late Alimuddin did not sign the will, the onus
was upon the defendant to prove that late Alimuddin did not sign the same.
Moinuddin
Ahmed alias Farook vs Khursheda Begum and ors 54 DLR 354.
Section 101–
He who
alleges fraud or forgery, burden lies upon him to prove the same. The
petitioners by filing an application for calling for the record of the
concerned case took reasonable steps to prove their the case of fraud and
forgery. The application was rightly filed.
Abdullah
(Md) and others vs Majibul Huq and others 56 DLR 528.
Sections 101 & 102–
The definite
case of the Government being that the suit property is an abandoned property,
onus lies on them to prove that it is an abandoned property.
Government
of the People’s Republic of Bangladesh vs Hosne Ara Begum and others 48 DLR
511.
Sections 101 & 102
When both
the parties lead evidence question of onus is out of place and the matter is to
be decided on the evidence led by the parties.
Ishaque (Md)
vs Ekramul Haque Chowdhury and others 54 DLR (AD) 26.
Sections 101 & 103
Mere filing
of a rent receipt or a private document without formal proof thereof and
without proving the contents of such documents cannot fulfil the requirements
of law.
Bangladesh
vs Md Aslam 44 DLR 69.
Sections 101–104
Defendant
though pleaded marriage of Monwara with Amir Ali yet the onus of proof is not
on him (but on the plaintiff).
Khorshed
Alam vs Amir Sultan 38 DLR (AD) 133.
Sections 101-104
Plaintiff
failed to prove that defendant is the son of the prostitute Baramoni––Court
below shifted the onus on the defendant to prove marriage of Monwara with Amir
Ali contrary to law.
Khorshed
Alam vs Amir Sultan 38 DLR (AD) 133.
Sections 101–104
Plaintiff
failed to establish that there was no marriage between Amir Ali and Monowara
and also that Khorshed Alam is the son of Baramoni–Again, all the courts below
worked under a misconception of law as to the question of onus of proof and
they placed the onus on the defendant about Monowara’s marriage–Which was
clearly for the plaintiff to discharge.
Khorshed
Alam vs Amir Sultan 38 DLR (AD) 133.
Sections 101–104
Plaintiff
failed to discharge the onus of proof that defendant I was the son of Baramoni,
a prostitute and was adopted by Amir Ali–Plaintiff did not examine Baramoni to
prove his case–Appellate Court’s finding that Baramoni was not examined as
witness by defendant which shows that defendant I was not the son of Amir Ali.
This conclusion is unwarranted and contrary to all presumptions of law built up
over the last 150 years.
Khorshed
Alam vs Amir Sultan 38 DLR (AD) 133.
Sections 101–104
Onus of
proof–Where no difficulty arises in arriving at a conclusion, the question of
onus recedes to the background, but where court finds it difficult to make up
its mind the question comes to the foreground and becomes the deciding factor.
In the present case the onus of proving the oral contract lies on the plaintiff
and this onus remained constant as neither the oral contract nor any part of it
was admitted by the defendant.
Jonab Ali
(Md) vs Md Moslem Uddin 44 DLR 291.
Section 102–
This
observation of the SubJudge · was correctly made. The onus was not wrongly
placed on the defendant. Contention of the appellant’s Counsel regarding the
question of limitation. The finding of the lower appellate Court cannot be
construed as making of new case regarding the barga settlement. Limitation is a
mixed question oflaw and fact after considering the evidence both oral and
documentary.
Afroz Rashid
vs Fazlul Karim 40 DLR (AD) 79.
Section 102–
Burden of
Proof and Onus Probandi –The plaintiff has produced not an agreement of sale
but a receipt of earnest money, signed not by the owner of suit properties but
by her son– The basis of his suit is an oral agreement, not Ext. 4 the receipt
which is only a supporting evidence. The defendants have no burden to prove
their alternative story with regard to the creation of Ext. 4.
Al–Haj Ahmed
Hossain vs Rejaur Rahman 42 DLR (AD) 225.
Section 102–
Burden of
proof–plaintiffs having failed to prove their title and possession in the suit
land there is no necessity of deciding whether the suit land vested in the
Government.
Noor
Mohammad Khan vs Bangladesh 42 DLR 434.
Section 102–
Burden
relating to forged document– The petitioner–pre–emptor discharged his initial
burden (as to his knowledge of limitation for the pre–emption proceeding) by
filing in court the copy of a petition showing the date of his knowledge. The
opposite parties’ case is that the petitioner –by ‘forging the thumb impression
of the person concerned filed the petition in order to create cause of action
for the pre–emption case but there is no explanation by them as to why the
person concerned (one Aynal Khan) could not be produced to deny his signature
in the petition (in proof of the forgery). The opposite parties have therefore
failed to discharge their burden to show that the petition was a forged
document.
Abdul Malek
Howlader vs Umme Kulsum 42 DLR 459.
Section 102–
Where
initial onus is discharged by the plaintiffs by giving slight evidence the
burden shifts to the defendant to prove the contrary.
Amirunnessa
vs Golam Kashem 42 DLR 499.
Section 102–
In a case
where the alleged executant denies execution of a document it is the duty of
the plaintiff to prove such execution.
Serajul
Islam (Md) vs Binoy Bhusan Chakraborty and others 47 DLR 248.
Section 103–
Burden of
proof as to particular fact– The defendant in a suit for specific performance
of contract admits her LTI in the agreement for sale and offers an alternative
story as to how her LTI came to be put on the document. The onus lies on her to
prove the alternative story.
Md Chand
Miah vs Khodeza Bibi 42 DLR 344.
Section 103–
Onus lies on
the defendant to prove her alternative story as to how her LTI came to be put
on the document.
Chand Miah
vs Khodeza Bibi 42 DLR 344.
Section 103–
Onus of Proof–Transferee to discharge his onus
with regard to payment of money on good faith and absence of knowledge of the
earlier contract–Lower appellate Court has left this point undecided.
Muktar
Hussain Khan vs Suresh Chandra Dey 42 DLR 86.
Section 103–
There is
wrong shifting of onus by the Courts below–In the instant case the learned
courts below put the onus on the defendant from the very beginning without
finding whether the plaintiff had prima facie proved his case only when the
onus would be upon the defendant to prove that he is not a defaulter,
thereafter but paid rent without a receipt. It appears that there is a wrong
shifting of onus by the courts below initially in the instant case.
Narayan
Prosad Bhowmic vs Sreela Sree Juktaswar Radha 40 DLR 449.
Section 103–
Burden of
proof as to particular fact– The defendant wants the courts to believe that the
sale deed Ext. 2, the basis of Ext A, is a bonafide document for valuable
consideration but no evidence in this regard having been adduced the said Ext.
cannot be allowed to stand.
Anwar
Hossain vs Abul Hossain Molla 44 DLR 79.
Section 105–
If the
accused wants to bring his acts within any one or more of the general
exceptions enumerated in Chapter IV of the Penal Code, it is for him to prove
that his acts are so covered under any of those general exceptions.
Nikhil
Chandra Halder vs State 54 DLR 148.
Section 105–
The burden
of proving the existence of circumstances bringing the case within the
exception lies on the accused.
State vs
Abdus Samad@ Samad Ali 54 DLR 590.
Section 105–
Accused’s
pleading of self-defence need not be proved if he establishes facts which on
the test of preponderance of probabilities makes his defence acceptable.
Hasan Rony
vs State 56 DLR 580.
Section 105–
Burden of
Proof–In criminal law, the onus of establishing all the ingredients, which
could make a criminal offence, lies always on the prosecution and this burden
never shifts upon the accused.
Hasan Rony
vs State 56 DLR 580.
Section 106–
Husband of
the deceased was found absconding without any explanation. He neither gave any
information to the police nor to his mother–in–law that her daughter has died
or to any local people. He thus failed to fulfill the requirement of law and
the natural expectation about the cause of death of his wife.
Joynal
Bhuiyan & another vs State 52 DLR 179.
Section 106–
The definite
and specific defence plea being within the special knowledge of the accused a
burden was cast upon him to discharge it, more so, when the prosecution proved
the guilt of the accused by convincing and overwhelming evidence.
Jamal Uddin
alias Md Jamal Uddin vs State 52 DLR 330.
Section 106–
Section 106
Evidence Act is attracted in exceptional cases where a relevant fact is
pre–eminently within the knowledge of the accused.
Hasmat Ali
vs State 53 DLR 169.
Section 106–
In a case
where the wife is proved to have died of assault in the house of the husband
there would be strong suspicion against the husband that at his hand the wife
died. To make the husband liable the minimum fact that must be brought on
record either by direct or circumstantial evidence is that he was present in
the house at the material time.
Hasmat Ali
vs State 53 DLR 169.
Section 106–
The recovery
of the bloodstained axe and lungi belonging to the convict constituted a
strong circumstantial evidence, conclusive enough so as not to admit any
hypothesis of his innocence.
Hasmat Ali
vs State 53 DLR 169.
Section 11 –
The
presumption under section 110 in this case would apply only if two conditions
are satisfied viz, the possession of the person claiming long possession is not
prima facie wrongful and secondly, the title of the person against whom the
long possession is claimed is not proved.
Gouri Das
and others vs ABM Hasan Kabir and others 55 DLR (AD) 52.
Section 111–
When any
deed is executed by a pardanashin lady burden lies on the person who claims
benefit under the deed to establish that the deed was executed by her on her
own accord. Independent advice in case of transfer of property by pardanashin
lady is insisted when the transferee stands in a fiduciary relationship with
the lady.
Abdul Mannan
Shah vs Kafiran Nessa 46 DLR 103.
Section 112–
Parenthood,
proof of– If a person wants to prove that he is not the father of his child, he
must establish that he had no access to the wife. Once it is proved that he had
access to his wife, the fact that his wife was a woman of bad character and
that she was accessible to other people too is not a ground to hold that the
child born during the continuance of marriage or within 280 days after its
dissolution is not that person’s child.
Jashimuddin
(Md) alias Md Jashimuddin vs Dali Begum and another 56 DLR 358.
Section 114–
Acquisition
of land for Railway–Two public documents one being a copy of Gazette
notification of 1933 and the other the land’s plan which were more than thirty
years old and filed as exhibits lead to a presumption that official acts
referred to therein were regularly performed and those documents were
sufficient to rebut the presumption of correctness of RS and subsequent record
of right.
GM
Bangladesh Railway vs Mossammat Sharifjan Bibi 43 DLR (AD) 112.
Section 114–
Court will
take adverse presumption for non–production of any evidence or non–examination
of any witness if the party is in a position to produce such evidence or
witness.
Mahatabuddin
Biswas vs Abdul Jalil and others 47 DLR 441.
Section 114–
There is
always a presumption that government action is in public interest. The Court
will not easily assume the action taken by the government is unreasonable or
without public interest. It is for the party challenging authority to show that
it is wanting in public interest. This burden is heavy and has to be discharged
by the party concerned.
Akramuzzaman
vs Government of Bangladesh, and others 52 DLR 209.
Section 114–
Tendering of
vital witness amounts to withholding of material witnesses and adverse
presumption ought to have been drawn against the prosecution.
Hobi Sheikh
and another vs State 56 DLR 383.
Section 114, Ills, (f)–
Notice
addressed duly returned with remarks refused–validly served.
Ambia Khatun
vs Serajul Islam 39 DLR 287.
Section 114(c)–
There being
a presumption of regularity of a judicial act under section 114( c) of the
Evidence Act whenever a judgment–debtor or anybody stepping into his shoes
seeks to have a decree passed by a court of competent jurisdiction adjudged
void by reason of fraud, a heavy onus lies on him to prove the alleged fraud by
cognate and reliable evidence.
Sabitri
Barai vs Asstt. Custodian 39 DLR 172.
Sections 114(c) & 88–
Where
judicial or official act is shown to have been done it is presumed to have been
rightly and regularly complying with necessary requirements.
Akhtar
Hossain vs Government of Bangladesh & ors 45 DLR 651.
Section 114(e)–
Objection as
to admissibility of evidence is to be taken at the first instance. In the
instant case no such objection was raised against the Commissioner’s report in
question which can also be relied upon as the same is an official document and
was prepared in due course.
Abdul Quader
Chowdhury vs Sayedul Hoque 43 DLR 568.
Section 114(g)–
There is
nothing on record to find any justifiable reason for the absence of the
plaintiff in the suit although his bonafide was seriously challenged from the
very beginning. Under such circumstances, the Court of appeal below appears to
be justified in drawing an adverse presumption against the plaintiff.
Abdur Rahim
vs Arifur Rahman and others 50 DLR 166.
Section 114(g)–
The document
is as old as 50 years and there is no evidence that the defendant had wilfully
suppressed the document from producing it in court. In that view the findings
of the court of appeal as to the presumption under section 1l4(g) of the
Evidence Act is untenable.
Shahidullah
and others vs Lutfur Karim and others 50 DLR 328.
Section 114(g)–
When an
action is taken by maintaining a file, the file must be produced to show that
the act was done properly. As the relevant file has been withheld in this case
presumption under section l 14(g) of the Evidence Act shall apply.
Chowdhury
Mahmood Hasan and others vs Bangladesh and others 54 DLR 537.
Section 114(g)–
Defence was
obviously deprived of scope to cross–examine investigation officer on vital
aspects and it is obvious that defence was prejudiced seriously due to non-examination
of the investigation officer. Prosecution offered no explanation as to non-examination
of some CS witnesses including investigation officer and it will give –rise to
presumption under section 114G Evidence Act.
Mokbul
Hossain and another vs State 55 DLR 396.
Section 114(g)–
When it is
not disputed that the payments were made by cheques, in order to prove the
dates of the cheques, the plaintiff could have easily called for the record of
the bank. But the plaintiff preferred not to tread the path and thereby
withheld the best evidence from the Court.
Saroj Kanta Sarker and others vs Seraj-ud-Dowla and others 56 DLR
39.
Section 114(g)–
The evidence
of a prosecutrix in a rape case customarily, being a woman of full age, is not
accepted as sufficient, but requires corroboration by independent evidence in
order to be believed which has been found in the decision reported in 19 DLR
(SC) 259.
Hossain Shially (Fakir) vs State 56 DLR 637.