High Court Division
(Civil Revisional Jurisdiction)
Abdul Samad Gazi…………Petitioner
Abdul Khalil Gazi and others.…………………. .Opposite Parties
ABM Khairul Haque J
Judgment : December 29, 2000.
Cases Referred To-
Attor Mia and another Vs. Mahmuda Khatun Chowdhury and others 43 DLR (AD) 78; Bouwang Raja Challaphroo Chowdhury Vs. Banga Behari Sen 22 CLJ 311; Pearl Mill Co Limited Vs. Ivy Tannery Co Limited 1919 KB 78; Marudanayagan Pillai Vs. Munusamy Pillai and others AIR 1971 Mad 8; Dau Alakhram Vs. Kulwanth Bai and another AIR 1950 Nag 238; Ali Mohamma Shaha Mohammed PLD 1987 Lab 607.
Faruque Ahmed with Gazi Md. Mohsin, Advocates—For the Petitioner.
Shahabuddin Ahmad, Advocate—For the Opposite Parties.
Civil Revision No. 8839 of 1991.
ABM Khairul Haque J.- This Rule under section 115 of the Code Civil Procedure was issued at the instance of the plaintiff-petitioner calling upon the defendant- opposite parties, to show cause as to why the judgment and order of remand dated 13-09-1987 (Decree drawn on 01-11-1987) passed by the learned Subordinate Judge, Chandpur in Title Appeal No. 20 of 1986 setting aside the judgment and decree dated 23-12-1985 (Decree drawn on 01-01-1986) passed by the Munsif, Upazila, Faridganj, in Title Suit No. 570 of 1984, should not be set aside.
2. The petitioner in this Case filed a suit for specific performance of contract of 25-05-1976 against the opposite party No.1 (defendant No.1) being Title Suit No. 207 of 1976 in the Court of Munsif, First Court, Chandpur, contending, inter alia, that in 1971, during the war of liberation there was a talk of sale of the suit land with the defendant No.1 on 15th Sraban, 1378 BS at a consideration of Taka 6,000.00 and accordingly, the defendant No.1 on of Taka 5,500 00 executed a bainapatra on 20th Sraban, 1378 BS corresponding to 06-08-1991 and delivered physical possession of suit land favour of the plaintiff and agreed to execute and register the necessary deed of sale in favour of the plaintiff as soon as possible that the plaintiff accordingly went into possession of the suit land and from time to time offered the rest of the consideration money and demanded execution and registration of the deed of sale but without any response from the defendant No. 1, that the plaintiff 1gde his last demand for registration of the deed of sale on receipt of the consideration money on 14-02-1976, but was not complied with, as such, he was compelled to file the instant suit for specific performance of contract.
3. The defendant No.1 contested the suit by filing a written statement on 01-08-1977 contending, inter alia, that he took a loan of Taka 150,00 from one Khali Raj (PW 7) during the war Of liberation and gave him a blank stamp paper with his signature on and subsequently, he repaid the said money and took back the stamp paper from him and kept in an earthen pot in a Chhikka but two years later found it to be lost, as such, he lodged a complaint with Sub-Divisional Magistrate, Chandpur on 20 031975 that he neither executed any bainapatra nor offered for sale the suit land either to the plaintiff or to anybody else, rather, he is in possession of the suit land. The defendant Nos. 3 and 4 (the opposite party Nos. 2 and 3) impleaded themselves on 03-08-1979 and contested the suit by filing a separate written statement on 2-11-1979. They support the Case of the defendant No. 1 and contended, inter alia, that they purchased the suit land by five registered kabalas Exhibit A (1)—A (5) and they are in possession of the suit land.
4. The learned Munsif after hearing decreed the suit but on appeal, the Appellate Court sent the suit back to the trial Court on remand for fresh trial.
5. In the meantime, the suit was renumbered as Title Suit No. 570 of 1984 on being transferred in the Court of Munsif, Faridganj. The plaintiff examined five witnesses including himself while the defendant Nos. 1 and 3 examined eight witnesses including the defendant No.1 and the defendant No.3 as DW 1 and DW 4 respectively. The learned Munsif found that the complaint dated 20-3-1975 allegedly filed by the defendant No. 1 did not disclose any loan and his story of taking loan on deposit of a stamp paper with Khalil Raj was disbelieved, that the defendant No.1 also failed to prove that the plaintiff had stolen the stamp paper, that on consideration of evidence on record, both oral and documentary, the learned Munsif found that the bainapatra Exhibit 2 was executed by the defendant No. 1 on receipt of Taka 5,500.00 and the said instrument is genuine and that with those findings the learned Munsif decreed the instant suit for specific performance of contract in favour of the plaintiff. On appeal, the learned Subordinate Judge held that the trial Court did not discuss the issue No. 2 in specific manner and find out as to whether the bainapatra dated 06-08-1971 in favour of the plaintiff was genuine or not and sent the Case back to the trial Court on remand for fresh trial on the points raised by him in his judgment. Being aggrieved the plaintiff-petitioner obtained this Rule under section 115 of the Code of Civil Procedure.
6. Mr. Faruque Ahmed, Advocate, appears on behalf of the petitioner with Mr. Gazi Md Mohsin, Advocate, while Mr. Shahabuddin Ahmed, Advocate, appears on behalf of the opposite parties.
7. The learned Advocate on both the sides submit that instead of sending the Case back to the trial Court on remand for trial afresh for the second time, the Appellate Court in the interest of justice, ought to have decided the matters himself once and for all. As such, instead of sending the case back on remand I have decided to consider myself the questions raised by the learned Appellate Judge. Reliance in this respect is placed on the decision of the Appellate Division in the case of Attor Mia and another Vs. Mahmuda Khatun Chowdhury and others 43 DLR 78.
8. The plaintiff-petitioner filed the suit on the strength of Exhibit 2 bainapatra dated 06-08-1971. He prayed for specific performance of contract. He himself as PW 1 proved the said bainapatra (Exhibit 2).
9. On examination of the bainapatra (Exhibit 2) it appears that the said instrument was executed by the defendant No.1 the vendor alone, but not by the plaintiff purchaser, the other party in the alleged contract. A contract of sale as this one is a bilateral instrument and must be executed, in general, by both the parties to the contract, the most important and foremost question is whether the bainapatra is at all a contract between the two parties when the purchaser, one of the parties, is not a signatory in the said instrument. It is true that a contract implies two parties, but a contract, in writing in this country does not necessarily imply that the document must be signed by both the parties thereto. In the instant case, the plaint case is that on receipt of the consideration in part, the defendant No.1 executed the bainaptra and handed over to the plaintiff and he accepted it. Acceptance of the said instrument by the plaintiff completed the agreement between the parties, and there was, consequently, in law, a contract in writing. The plaintiff instituted the present suit praying for registration of the deed of sale by the defendant No. 1 in favour of the plaintiff in furtherance of and for the specific performance of the said contract in writing. Reliance in this regard in made in the Case of Bouwang Raja Challaphroo Chowdhury Vs. Banga Behari Sen 22 CLJ 311.
10. In his evidence as PW 1 the plaintiff deposed that during the war of liberation, the defendant No.1 was in need of money and accordingly, there was a talk of sale of the suit properties on 15th Sravan, 1378 BS in front of Abdur Rahman Gazi, Rashid, Ali Akbar, Habibullah and Seraj Arshad Ali. The defendant No. 1 is the step-brother of the plaintiff and Abdur Rahman Gazi who is their elder brother, he settled the sale price of the said land at Taka 6,000.00 and the plaintiff gave Taka 150.00 to the defendant No.1 to purchase the stamp paper. A Mannan Mia (PW 2) wrote the bainapatra on 20th Sraban, 1376 BS (corresponding to 06-08-71) as instructed by the defendant No.1 and the plaintiff gave him Taka 5,500.00 and after execution the defendant No.1 handed over the bainapatra to him and also made over possession of the suit land to the plaintiff. The registration of the kabala could not be done immediately as the office of the Sub-Registrar was closed in that area due to the war of liberation. He offered the rest of the money and demanded registration of the deed of sale from the defendant No.1 from time to time but without any response from him, that the last demand was made on 1st Falgoon, 1382 BS in front of Rashid, Momin, Seraj and others and he also asked them to settle the dispute. In cross-examination the witness said that he did not know that the defendant Nos.3 and 4 allegedly purchased the self-same suit land from the defendant No.1. The Exhibit-2 was also proved by PW 2, PW 3 and PW 4. All the witnesses examined on behalf of the plaintiff corroborated PW 1. They were cross-examined extensively but without much success.
11. The defendant No.1, in his deposition, denied the plaint-Case altogether, although he did not deny his signatures on the Exhibit-2 but completely denied execution of any baina in favour of the plaintiff or receipt of Taka 5,500.00 as consideration from him. His explanation for his signatures of the Exhibit 2 is otherwise. As DW he stated in his deposition that during the war of liberation in 1971 he was in need of money and took loan of Taka 150.00 from one Khalil Raj and gave him a blank stamp paper with his signatures on and a year later on repayment, he took back the said stamp paper and kept in an earthen pot along with his other documents, in a Chhikka, subsequently two years later he found the said stamp paper missing, in the meantime he sold his 0.57 acres of land by five kabalas in favour of the defendant Nos. 3 and 4. In support of his such claims he examined his cousin DW 2, the purchaser of the suit land DW4, 5 and his creditor Khalilur Rahman Raj, DW 7 himself. From the evidence adduced on behalf of the defendants it appears that the defendant No. 1 purchased the stamp paper 5/6 days before he had talk with DW 7 about loan. This itself appears to be illogical because, how could be know before he had talks with DW 7 that he would allow him any loan and whether he would require the said stamp paper for securing the said loan, specially when DW 4, son of DW 7, himself denied giving any loan to anybody by his father by taking such stamp papers,. Besides, the defendant No. 1 stated in his deposition that Mannan Majee (DW 5) Jafar Gazi, Abdul Huq Gazi (DW 2) and Gani Sheikh were present at the time of talk of loan with DW 7 and they were also present at the time of taking back the stamp paper from the aforesaid DW 7 on repayment of Taka 150.00. But DW 7 the creditor himself stated in his cross- examination that nobody was present when the talk of loan took place or when he got the said stamp paper from the defendant No. 1, or when defendant No.1 put his signature on stamp paper or when he returned the said stamp paper to the defendant No.1 on receipt of Taka 150.00 from him. He also admitted that loan was given 15/20 days before the defendant No. 1 gave him the stamp paper. These evidence of DW 7 belies the evidence of the defendant No. 1 that the aforesaid Mannan Majee (DW 5) A Huq Gazi (DW 2) Jafar Gazi or Gazi Sheikh were at all present at the time of alleged transaction of loan allegedly taken by the defendant No.1 from the DW 7. Besides, this fact of presence of aforesaid persons were also not mentioned in the written statement filed by the defendant No.1 and he admitted in his cross-examination that he did not mention the names of the aforesaid persons to his learned Advocate at the time of drafting of his written statement. The deposition of the DW 7 is found to be contradictory to the deposition of the defendant No.1 (DW 1) and other witnesses adduced on his behalf who deposed that the defendant No.1 received the loan amount of Taka 150.00 from the DW 7 and handed him over the blank stamp paper with his signatures on. The amount of alleged loan has also because disputed because the defendant No. 1 in his written statement as well as in his evidence categorically stated that he took loan of Taka 150.00 only from DW 7 which was supported by DW 2, DW 4 and DW 5 but the creditor DW 7 stated both in his examination-in-chief as well as in his cross-examination that he gave him a loan of Taka 1,500.00 and also received back the said amount of Taka 1,500.00 from the defendant No.1.
12. Incidentally, it may be mentioned that DW 7 deposed on commission and not in court. Under such circumstances the evidence of DW 1, DW 2, DW 4 and DW 5 in respect of payment of loan by Khalilur Rahman Raj (DW 7) to the defendant No. 1 is found to be unreliable. Besides DW 4 also admitted that he was not present at any stage of the transaction of loan from his father or return of the said loan by the defendant No. 1. As such, on consideration of the entire evidence on record adduced on behalf of the defendant No.1, it appears that the story of taking loan by the defendant No.1 from Khalilur Rahman Raj by keeping a stamp paper of Taka 150.00 is absolutely a myth.
13. The defendant No.1 himself, as DW 1, deposed that he sold his 0.57 acres of land to the defendant Nos.3 and 4 in five kabalas registered during the year 1975 and 1976 but the defendant No.1 in his written statement filed on 01-08-1977 stated that there was no occasion for sale of his land to anybody and he was still in possession of the suit land. This averment made in the written statement filed on 01-08-1977 subsequent to his alleged transfer of his properties to the defendant Nos.3 and 4 is absolutely contradictory to his deposition before the Court with regard to his sale of the suit land by five kabalas to the defendant Nos.3 and 4 during the years 1975 and 1976. This clearly shows that although there were five registered kabalas made by defendant No.1 in favour of the defendant Nos. 3 and 4 on different dates in 1975 and 1976 purported to sell the suit lands to them they appear to be simply paper transactions and were never acted upon. This conclusion is fortified by the facts that although the defendant No. 1 stated in his deposition about sale of 0.57 acres to the defendant Nos.3 and 4 but in his cross-examination could not give any details about the said transactions, such as, quantum of lands he sold by each of the kabalas or the consideration for each of the pieces of lands sold and other particulars of the transactions. The defendant No.1 though deposed that he delivered possession of the suit land to the defendant Nos.3 and 4 but failed to give any further details. DW 2 although the cousin of the parties and lived in the same house but could not give any definite statement about the possession of the suit land by the defendant Nos.3 and 4. He only said that he heard that the suit land is possessed by them. The DW 4 used to manage the affairs of their entire as stated by DW 7 himself but he also could not give the boundary or area of the lands purchased by them in each of the five kabalas. In his deposition he said that Chand Mia used to cultivate the concerned lands but the said Chand Mia was not examined in Court in support of his such claim DW 5 Mannan Mia in his deposition although said that defendant Nos. 3 and 4 possessed the suit land but stated that the first date of their possession was in the month of Falgoon 1375 BS which is long before the alleged purchase made by the defendant Nos. 3 and 4 as such this witness cannot be relied on DW 6 Muslim Khan stated that the defendant Nos. 3 and 4 possessed the suit land and he surveyed the suit land on first part of 1382 BS but admitted in cross examination that he made the survey work in the house of the defendant No 1 and others He also admitted that he cannot file any kali or hath naksha. He also stated that he has no land contiguous to the suit land nor can he give the area of the suit land. As such, these witnesses also do not appear to be creditworthy. DW 8 also deposed that the defendant Nos. 3 and 4 possessed the suit land but could neither say the quantum of the suit-land nor in how many plots the suit land was divided, as such, this witness also does not inspire any confidence. Rather PW 3, PW 4 and PW 5 proved the possession of the suit land by the plaintiff since the war of liberation.
14. Consideration of these evidence it appears that the defendant No.1 executed the bainapatra dated 06-Q8-1971 (Exhibit 2) in favour of the plaintiff. This is also admitted by the defendant No. 3, who stated as DW 4 in his cross-examination that their Kabalas are after the bainapatra in favour of the plaintiff. Under such facts and circumstances and on the preponderance of evidence, it is found that the bainapatra dated 06-8-1971 (Exhibit 2) was executed by the defendant, No. 1 in favour of the plaintiff and it was genuine and the possession of the suit land was also delivered in his favour.
15. The observation of the learned Subordinate Judge that the learned Munsif did not discuss the issue No. 2 in specific way as to whether the bainapatra dated 06-08-1971 was genuine or not and did not discuss as to whether the defendant Nos 3 family and 4 purchased the suit lands within their knowledge of the bainapatra are not correct. The learned Munsif after elaborate discussions on all relevant points, correctly held the Exhibit-2 as genuine and also held that the Exhibit A(1) to A(5) are all collusive documents The further observation of the learned Subordinate Judge that the defendant No 1 look loan from the plaintiff is not at all correct The defendant No 1 alleged that he took loan from Khalilur Rahman Raj (DW 7) which on evidence was found to be false The learned Subordinate Judge also held that the question of limitation was not discussed by the learned Munsif although the suit was filed in 1976 on the basis of the bainapatra dated 06 08 1971 It is true that this issue was not framed by the learned Munsif presumably because the question of limitation was not specifically raised by either of the parties As such no issue with regard to the question of limitation was, framed either at the time of first trial or even after remand because there was no such direction by the appellate Court at that time.
16 However the question of inordinate delay was very strenuously argued in this Court by the learned Advocate on behalf of the opposite party Nos. 1 and 2. His main argument was directed on the question of inordinate delay in filing the suit for specific performance of contract. He submits that even assuming that there was a bainapatra Exhibit 2 for sale of the suit land to the plaintiff but the, plaintiff ought to have filed the suit as soon as, possible and in any view of the matter the filing of the suit in 1976 in order to enforce the agreement allegedly entered into between the parties in l97l suffers from inordinate delay. In support of his submission the learned Advocate refers to the decisions reported in AIR 1971 Mad 8, 1919KB 78, AIR 1950 Nag 238 and PLD 1987 Lah 607. On the basis of the aforesaid decisions, the learned Advocate submits that although in general time is not the essence of the contract but in this case there was inordinate delay in filing suit, as such, the suit is liable to be dismissed and the Rule is liable to be discharged if not on any other grounds but at least on the point of inordinate delay. On the other hand, the learned Advocate for the petitioner submits that in all the decisions cited by the learned Advocate for the opposite party the relevant agreement was admitted and admitting the relevant agreements the question of limitation was discussed but the facts and circumstances of those cases have got no manner of application so far the present case is concerned.
17. Now let me discuss the decisions cited by the learned Advocate on behalf of the opposite party Nos. 1 and 2. In the case of Pearl Mill Co Limited Vs. Ivy Tannery Co Limited 1919 KB 78, a contract to supply 50 dozen skins as and when required was entered into between the parties in September, 1913, From time to time, till September, 1914, the defendant supplied 20 dozen skins but thereafter no order was placed for a long time though the defendants approached the plaintiffs on several occasions. However, on a request by the plaintiff in July, 1917, further supply was declined by the defendants on the ground that the agreement no longer existed. Since the contract was found to be abandoned because of an inordinate delay on the part of both sides, the King’s Bench Division, in a suit for breach of contract, held that no contract was in existence at the relevant time. This case was in respect of sale of goods which lapsed because no delivery was requested for more than two years in spite of repeated approach by the defendants. But the present case is in respect of enforcement of contract for sale of immovable properties, the possession of which had already been allegedly delivered in favour of the plaintiff on the basis of a written agreement. As such, this decision of the King’s Bench Division has got no manner of application to the facts of this case in hand, In the case of Marudanayagan Pillai Vs. Munusamy Pillai and others AIR 1971 Mad 8, it was verbally agreed between the parties that the sale deed would be executed by 30th April, 1908 but on 1st May 1908, the plaintiff intimated the defendant that the sale price was ready and asked him to get to Dharapuram to execute the sale deed and receive the money. On 7th May the defendant intimated the plaintiff that he had been waiting till 7th May at Dharapuram and would wait till 10th to conclude the sale, the plaintiff though received the said notice on 8th May, did nothing, as such, the defendant on 10th May intimated him that the contract was rescinded. Nearly three years later the plaintiff instituted the suit for specific performance of contract. On these facts, when the vendor rescinded after the agreed time, the Madras High Court upheld the dismissal of the suit instituted after the lapse of time that had occurred. This decision has no manner of application so far the fact of this case is concerned. In the case of Dau Alakhram Vs. Kulwantin Bai and another AIR 1950 Nag 238, the defendant entered into an agreement to sell her share in a mouza in favour of the plaintiff on 17th March, 1939, according to the agreement all related expenses including purchase of stamp papers were to be arranged by the plaintiff. The defendant after obtaining necessary sanction for sale of her properties wrote a number of letters in 1939 to the plaintiff for completion of the sale but without any response from him but nearly three years later the plaintiff filed the suit for specific performance of contract in March, 1942. Since the defendant performed her part of the contract and it was the plaintiff who avoided the performance of his part, the Nagpur High Court upheld the dismissal of his suit. But the facts and circumstances of this case has got no manner of application so far the present case in hand is concerned. In the case of Ali Mohammad Vs. Shaha Mohammed PLD 1987 Lah 607, an agreement of sale of land was executed between the plaintiff and the defendant on 24-01-1970 with the stipulation that the sale deed would be registered by the defendant before 28-02-1970 and if he failed to get the sale deed registered the plaintiff would be entitled to enforce the contract through Court but if the plaintiff did not perform his part of the contract, the earnest money would be forfeited. Since the plaintiff could not prove his readiness to perform his part of the contract the Lahore High Court affirmed the dismissal of the suit. In the above noted cases, the date for performance of the contract were fixed but in the present case in hand, no such date was fixed for registration of the sale deed in favour of the plaintiff although Taka 5,500 out of Taka 6,000.00 was already paid to the vendor, the defendant No. 1, on the date of agreement on 06-08-1971, also delivered possession of the suit lands in favour of the plaintiff, as such, the facts and circumstances of the Case discussed above being entirely different from the case in hand, those decisions have got no manner of application so far this case is concerned.
18. In the instant case, the learned Advocate submits that the plaintiff himself was all along in possession of the suit land since the date of bainapatra on 06-08-1971 on payment of the bulk of the consideration and, according to section 55 of Contract Act, time is not an essence of the contract and he was not obliged to file his suit earlier since his such possession was not threatened by anybody. Only when the defendant No.1 refused to execute and register the deed even after repeated reminders the plaintiff was constrained to file the instant suit for specific performance of contract and in the facts and circumstances of the case, the delay was neither unreasonable nor inordinate. This submission of the learned Advocate for the petitioner on the question of inordinate delay has got substance. The plaintiff proved his agreement with the defendant No.1 and also his possession in the suit land. There was no evidence of any overt act on the part of the defendants showing any threat on the possession of the plaintiff over the suit land, as such, the plaintiff did not feel it necessary to file any suit earlier specially when no time was stipulated in the bainapatra for registration of the deed as the essence of the contract. This argument of the learned Advocate for the petitioner is also further fortified by the fact that none of defendants raised the plea of limitation or inordinate delay either in their written statements or in the memo of appeal or even in their depositions. In reply the learned Advocate on behalf of the opposite parties only submits that any question of law, such as the question of inordinate delay, can be raised at any stage of the suit even in appeal or revision. As theory this is correct but any argument, even on law points, must be based on specific facts established by the concerned party on evidence. In this case, the defendants never attempted to raise this plea of inordinate delay earlier through any of its witnesses. Besides, it is already found on evidence that there was no delay in filing the suit in the fact, and circumstances of the case.
19. Under such circumstances, the judgment and decree passed by the learned Subordinate Judge dated 30-09-1987 is set aside and the judgment and decree dated 23-12-1985 passed by the learned Munsif is hereby affirmed.
In the result, the Rule is made absolute but without any order as to cost.
Send down the records forthwith.
Source : 53 DLR (2001) 262