A. K. Azad and another Vs. Mostafizur Rahman and others. (Syed Mahmud Hossain, J.)

APPELLATE DIVISION

(CIVIL)

Evidence Act (I of 1872)

Sections 45 and 137

From the cross-examination of the handwriting expert, it appears that the plaintiff did not at all challenge the opinion of the handwriting expert. The plaintiff asked some questions to the handwriting expert without confronting her about the veracity of her opinion. Therefore, it appears that the plaintiff could not shake the credibility of the opinion of the handwriting expert.                       …(18)

Code of Civil Procedure (V of 1908)

Order XLI, rule 27

Evidence Act (I of 1872)

Sections 45 and 101

When the defendant No.1 in his written statement stated that he did not sign the bainapatra and as such signature was forged as a result of which the onus was shifted upon the plaintiff to prove that defendant No.1 had sign the bainapatra by obtaining the opinion of the hand writing expert. When appeal is the continuation of the suit for which the appellate court in a fit case can obtain additional evidence. The appellate court did not exceed its jurisdiction in taking opinion of the hand writing expert.

The finding of the High Court Division that defendant No.1 did not challenge the genuineness of his signature on the ‘bainapatra’ in the trial Court is wrong as defendant No.1 in his written statement stated in no uncertain terms that he did not sign the ‘bainapatra’ and that his signature was forged in the bainapatra. Such being the state of affairs, the onus shifted on the plaintiff to show that defendant No.1, in fact, signed the bainapatra by obtaining the opinion of the handwriting expert. The High Court Division took serious exception to the appellate Court’s decision of obtaining opinion of the handwriting expert. It must be borne in mind that appeal is the continuation of the suit and the appellate Court has similar power like that of the trial Court and the appellate Court in appropriate cases can obtain additional evidence to come to a correct decision. By taking opinion of the handwriting expert, the appellate Court did not exceed its jurisdiction.                                        ….(20)

Code of Civil Procedure (V of 1908)

Order XLI, rule 31

The appellate court came to a definite finding that the plaintiff could not prove the alleged contract but the High Court Division without revering such finding illegally made the rule absolute.                               …(21)

Mr. Abdul Wadud Bhuiyan, Senior Advocate, instructed Mrs. Sufia Khatun, Advocate-on-Record.                       ……For the Appellants.

Mr. Harendra Nath Nandi, Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record.                          ….For the Petitioners

Mr. Mahbubey Alam, Senior Advocate, instructed by Mr. Zainul Abedin, Advocate-on-Record.              …For Respondent No.1

Not represented.          ….Respondent Nos. 2-3.

Not represented.           …For the Respondents

Judgment

Syed Mahmud Hossain, J:     

This appeal by leave by the appellants is from the judgment and order dated 10.11.2009 passed by the High Court Division in Civil Revision No. 2910 of 2009 making the Rule absolute setting aside those dated 04.08.2009 passed by the learned Additional District Judge, Second Court, Dhaka in Title Appeal No.370 of 2003 allowing the appeal and  reversing those dated 09.08.2003 passed by the Senior Assistant Judge, Sixth Court, Dhaka in Title Suit No.195 of 2002 decreeing the suit.

1. 2.      The facts leading to the filing of this appeal, in short, are as follows:

The petitioners as the plaintiffs filed Title Suit No.195 of 2002 in Sixth Court of Senior Assistant Judge, Dhaka for specific performance of contract, for executing a deed of sale and for recovery of khas possession against the defendants.

1. 3.      On 03.03.2002, defendant No.1 executed a bainapatra in favour of the plaintiff on receipt of Tk. 50,000/- out of the total consideration of Tk. 60,000/- for selling the land appended in the schedule to the plaint. On the date of bainapatra it was stipulated that the plaintiff would give the balance amount of Tk. 10,000/- within three months and that defendant No.1 would execute and register deed of sale in favour of the plaintiff. Defendant No.1 did not take the balance consideration money and at last on 25.07.2002 denied taking the balance consideration money. He also denied executing the deed of sale in presence of the witnesses. Hence the plaintiff filed the suit.
2. 4.      Defendant No.1 contested the suit by filing written statement denying the material statements made in the plaint. His case, in short, is that the suit is bad for defect of parties and barred by law of limitation. The bainapatra dated 03.03.2002 is forged and is created by the plaintiff. Defendant No.1 did not take any money from the plaintiff. The case is totally false and fabricated. In such view of the matter, the suit is liable to be dismissed.
3. 5.      The trial Court decreed the suit by judgment and order dated 09.08.2003.
4. 6.      Against the judgment and decree of the trial Court, defendant Nos.1 and 2 preferred Title Appeal No. 370 of 2003 before the District Judge, Dhaka. On transfer, the appeal was heard by the learned Additional District Judge, Second Court, Dhaka, who by the judgment and order dated 04.08.2009 allowed the appeal reversing the judgment and decree passed by the trial Court.
5. 7.      Against the judgment and decree passed by the appellate Court, the plaintiff filed a revisional application before the High Court Division and obtained Rule in Civil Revision No. 2910 of 2009. The High Court Division made the Rule absolute by the judgment and order dated 10.11.2009.
6. 8.      Feeling aggrieved by and dissatisfied with judgment and order dated 10.11.2009 passed by the High Court Division, the defendants moved this Division by filing Civil Petition for Leave to Appeal No. 2505 of 2009 in which leave was granted on 04.07.2010 resulting in the initiation of Civil Appeal No. 283 of 2010.
7. 9.      Mr. Abdul Wadud Bhuiyan, learned Senior Advocate, appearing on behalf of the appellants, submits that the High Court Division committed illegality in holding that there is no scope for obtaining the opinion of the handwriting expert at the appellate stage although appeal is the continuation of the suit and that defendant No.1 rightly prayed for additional evidence at the appellate stage and as such, the impugned judgment should be set aside. He further submits that the High Court Division came to the finding that defendant No.1 did not raise the question of genuineness of his signature on the ‘bainapatra’ at the trial and that no such issue was framed in the trial Court to that effect although defendant No.1 in his written statement in an unequivocal terms stated that his signature appearing on the ‘bainapatra’ was forged and as such, the impugned judgment should be set aside. He then submits that the P.Ws. could not prove execution and passing of consideration money and in such state of affairs, a suit for specific performance of contract could not be decreed.
8. 10.  Mr. Mahbubey Alam, learned Senior Advocate appearing on behalf of respondent No.1, on the other hand, submits that the trial Court compared the signature of defendant No.1 appearing on the ‘bainapatra’ with his admitted signature according to the provision of section 73 of the Evidence Act and there was no scope for obtaining opinion of the handwriting expert at the appellate stage and as such, no interference is called for by this Division. He further submits that the grounds on which leave has been granted had already been addressed by the High Court Division and as such, the impugned judgment should not be set aside.
9. 11.  We have considered the impugned judgment, the submissions of the learned Advocates and the papers incorporated in the paper book.
10. 12.  Before addressing the submissions of the learned Advocates, it is necessary to quote the submissions on which leave was granted as under:
    1. I.           The trial Court by order No.11 dated 23.03.2003 noticed about filing of an application by the defendant for expert opinion in respect of the signatures appearing in the ‘bainapatra’ and also directed the plaintiff to submit the disputed ‘bainapatra’ to the Court and the ‘bainapatra’ was filed on 31.03.2003 but the Court did not pass any order for examination of the signatures by an expert and without ascertaining the genuineness of the signature observed that the ‘bainapatra’ is genuine and in the face of such facts, the findings by the High Court Division that the defendant raised no question about the genuineness of the signature of the ‘bainapartra’ in the trial Court and raised the same for the first time before the Court of appeal below is misconceived, baseless and perverse.
    2. II.        The Court of appeal below found that the expert’s opinion obtained with modern scientific instrument disclosed that the signature of the defendant in the ‘bainapatra’ is false and forged and on the other hand, the P. Ws. could not prove that the defendant signed the ‘bainaparta’ nor could prove payment of the amount considera-tion to the defendant and with the findings the Court of appeal below reversed the finding of the trial Court and the High Court Division failed to show that these findings are perverse, baseless and illegal and therefore, the findings of the Court of appeal below being the findings of fact, these findings are binding upon the High Court Division.
    3. 13.  It appears that by Order No.11 dated 23.03.2003 the trial Court noticed about filing of an application by defendant No.1 for expert’s opinion in respect of the signatures appearing on the ‘bainapatra’ and directed the plaintiff to submit the disputed ‘bainapatra’ to the Court and the ‘bianapatra’ was filed on 31.03.2003. But the trial Court did not pass any order for examination of the signatures by an expert and without ascertaining the genuineness of the signatures observed that the disputed ‘bainapatra’ was genuine.
    4. 14.  During pendency of the appeal, the defendant-appellant filed an application on 16.05.2004 praying for obtaining the opinion of handwriting expert to ascertain the genuineness of his signature appearing on the bainapatra dated 30.03.2002 with some of his admitted signatures. The said application was allowed. On 06.11.2004, the appellate Court received the opinion of the handwriting expert by a memo dated 05.10.2004. The order allowing the prayer for obtaining opinion of the handwriting expert was challenged before both the Divisions of this Court and was upheld. Because of the order of stay passed at different stages, the handwriting expert could not complete her deposition before the Court. On 11.06.2009, the hand writing expert completed her deposition.
    5. 15.  Having considered the opinion of the handwriting expert and the evidence of the P.Ws., the appellate Court came to a finding that the signature of defendant No.1 appearing on the ‘bainapatra’ was not genuine and that the plaintiff could not prove the bainapatra.
    6. 16.   Mr. Abdul Wadud Bhuiyan, learned Advocate appearing on behalf of the appellants read out the depositions of the P.Ws. From the evidence of P.Ws.1, 2, 3 and 4, it appears that they did not state anything about execution of the ‘bainapatra’ by defendant No.1 in their evidence.
    7. 17.  What is important to note here is that execution consists in signing a document read out and understood and does not consist of merely signing a name upon a blank sheet of paper. To be executed a document must be in existence.
    8. 18.  From the cross-examination of the handwriting expert, it appears that the plaintiff did not at all challenge the opinion of the handwriting expert. The plaintiff asked some questions to the handwriting expert without confronting her about the veracity of her opinion. Therefore, it appears that the plaintiff could not shake the credibility of the opinion of the handwriting expert.
    9. 19.  Mr. Abdul Wadud Bhuiyan, learned Advocate has drawn our attention to the fact that before filing of the suit for specific performance of contract, defendant No.1 filed a miscellaneous case for pre-emption against the plaintiff. He, therefore, submits that in view of the strained relationship between the parties, the question of entering into a contract by defendant No.1 with the plaintiff did not arise. This submission of the learned Advocate can not be brushed aside.
    10. 20.  The finding of the High Court Division that defendant No.1 did not challenge the genuineness of his signature on the ‘bainapatra’ in the trial Court is wrong as defendant No.1 in his written statement stated in no uncertain terms that he did not sign the ‘bainapatra’ and that his signature was forged in the bainapatra. Such being the state of affairs, the onus shifted on the plaintiff to show that defendant No.1, in fact, signed the bainapatra by obtaining the opinion of the handwriting expert. The High Court Division took serious exception to the appellate Court’s decision of obtaining opinion of the handwriting expert. It must be borne in mind that appeal is the continuation of the suit and the appellate Court has similar power like that of the trial Court and the appellate Court in appropriate cases can obtain additional evidence to come to a correct decision. By taking opinion of the handwriting expert, the appellate Court did not exceed its jurisdiction.
    11. 21.  The appellate Court being the final Court of fact came to a definite finding that the plaintiff could not prove the alleged contract and the High Court Division without reversing the findings of the appellate Court with reference to the evidence on record made the Rule absolute setting aside the judgment and decree of the appellate Court.
    12. 22.  In the light of the findings made before, we find that the impugned judgment and order passed by the High Court Division can not sustain in law.
    13. 23.  Accordingly, the appeal is allowed without any order as to costs.

Civil Petition for Leave to Appeal No.73 of 2012 arising out of an order rejecting the application for rejection of plaint has become infructuous as the appeal is allowed. Therefore, the civil petition is dismissed as being infructuous.

Ed.