Evidence Act, 1872 [Section 115-157]


Evidence Act
[I of 1872]

 

Section 115–

There cannot
be any acquiescence without full knowledge both of the right infringed and of
the acts which constitute the infringement.

Haque Brothers vs Shamsul Huq 39 DLR290.

 

Section 115–

Fishery–Lease
of–Appellant society could not show any infringement of statutory rules in
creating lease of fishery–No question of estoppel arises against Government
either quasi or promissory.

Haruni Fishermen’s Co–operative Society vs Md Ebadat Ali &
others 40 DLR (AD) 266.

 

Section 115–

Notification
exempting duty and tax–Legality of subsequent notification and question of
estoppel–The notification under section 19 was issued without any condition
excepting the “terms and conditions” therein. Subsequent notification
taking away exemptions can have no operation when a right had vested in the
importer. The importer having acted upon the assurance ‘given, the Government
cannot retrace its steps and ask for duty at the rate mentioned in the
subsequent notification. This is clearly a case of estoppel, the well–settled
principle of promissory estoppel.

Collector of Customs, Chittagong vs A Hannan 42 DLR (AD) 167.

 

Section 115–

Consent
Decree–Limitation and Estoppel–Plaintiffs elected to give up all the reliefs
prayed for in the suit and to limit their prayer, by amendment, to a
declaration that they are the sole legal heirs of the loanee. On understanding
with the plaintiffs, the defendants neither opposed the amendment nor advanced
any argument. Since the plaintiffs elected to relinquish all reliefs except the
one for saving the suit from limitation and to secure some benefits for them,
they are bound by the principle of estoppel and cannot be allowed to argue for
the same reliefs which they had voluntarily abandoned. The decree obtained by
them being based on understanding–and consent of the parties, they are not
permitted to take any appeal from such consent decree. On the same principle
the defendant is also barred from preferring any appeal from the High Court
Division’s judgment.

Parveen Banu vs BHBFC 42 DLR (AD) 234.

 

Section 115–

Ordering
retirement from service after the petitioners rendered 12 years’ uninterrupted
service–Admittedly the appointment of petitioners was made by the then Chairman
of the Pourashava, a competent authority and since they joined services on the
basis thereof and rendered 12 years of uninterrupted service, their appointment
cannot now be said to be made irregularly. If any irregularity was there
initially, it has been cured. After they were confirmed following probation of
2 years under the rules their services cannot be terminated arbitrarily in the
manner as done by the impugned letter. The grounds of redundancy on which the
petitioners have been retired is a colourable exercise of power. The respondent
is therefore directed to reinstate the petitioners and pay them arrear salaries
as claimed.

Kanaklata Halder vs Barisal Pourashava 42 DLR 533.

 

Section 115–

The
equitable principle of estoppel debars the plaintiff from recovering possession
of the suit land from the defendants as they made substantial improvement of
the land, although before acquiring title by adverse possession.

Renupada Chakraborty vs Kurfan­ullah & others 46 DLR 532.

 

Section 115–

Estoppel–
the Railway being a part of the Government, the Government or any of its
Ministries is estopped from challenging the validity of the contract concluded
with the plaintiff.

Pronab Kumar Chakraborty vs Bangladesh 46 DLR 268.

 

Section 115–

Estoppel–It
is true the plaint refers to defendant’s petition for some amendment in
Commissioner’s report relating to the decree in an earlier suit and her serious
objection to such amendment and yet she has herself assailed the same decree in
the later suit. This actually attracts the principle not of res judicata but of
estoppel which means that a person shall not be allowed to say one thing at one
time and the opposite of it at another time.

Nannu Miah vs Peer Banu Bibi 43 DLR 526.

 

Section 115–

Estoppel
& Acquiescence­ – Having induced the appellants to permit him to retire
from service, the respondent cannot be heard to say they had no power to
relieve him. Even if the appellants’ action was not sanctioned by law, he
cannot be the person to make any grievance of it, because he wanted a
beneficial order in his favour and the appellants had only obliged him.

Bangladesh Parjatan Corporation vs Mofizur Rahman 46 DLR (AD) 46.

 

Section 115–

Estoppel–It
binds heirs–The plaintiff is claiming interest in the property by inheritance
through his father. If his father had accepted the title of the defendants as
tenants of the property, his father would be estopped from challenging the
title of his landlord, and if his father would be estopped the plaintiff would
also be bound by the said estoppel as estoppel binds heirs.

Bazlur Rahman vs Sadu Mia 45 DLR 391.

 

Section 115–

There can be
no estoppel where the truth is known to both parties.

Saralat Hossain vs Dr. Islamuddin 45 DLR 724.

 

Section 115–

Waiver–
Estoppel– An officer of the Parjatan Corporation challenging the order retiring
her from service before the age of superannuation cannot be said to have waived
her rights and accepted the order just for the reason that she had accepted the
gratuity money available to her.

Hasina Mawla vs Parjatan Corporation 45 DLR 112.

 

Section 115–

The
plaintiff never abandoned his claim of ownership nor the defendants were misled
by his prayer for an annual lease so as to change or alter their position to
their detriment and the prayer for temporary lease being obviously under
protest the doctrine of estoppel or waiver has no manner of application in the
present case.

Dayal Chandra Mondal and others vs Assistant Custodian Vested and
Non–Resident Properties (L&B) and others 50 DLR 186.

 

Section 115–

Before a
party could be barred by the principles of estoppel, waiver and acquiescence it
must be established that the opposite party acted bonafide on the clear,
definite and unambiguous representation made by his adversary and that the
opposite party has altered position in pursuance thereof.

Moslem Ahmed Sarker (Md) alias Muslim Ahmed vs Abdul Khaleque and
others 50 DLR 616.

 

Section 115–

Estoppel–Partition
is an equitable relief–plaintiffs having abandoned their claim in respect of
part of the suit property and the same having been acted upon they are estopped
from giving a go by to the compromise to the prejudice of the compromising
defendants.

Mayurer Nessa and others vs Julekha Khatoon and others 47 DLR 26.

 

Section 115–

Acceptance
of pensionary benefits under compelling circumstances of the present case
cannot be accepted as estoppel.

Jahangir Kabir vs Bangladesh 48 DLR (AD) 156.

 

Section 115–

It is clear
that unless the defendant’s position is changed or altered due to the
representation made by the plaintiff, there will be no application of the
doctrine of estoppel.

Abdur Rahman vs Tazlul Karim Sikdar and others 48 DLR 361.

 

Section 115–

When a party
is fully aware of the wording of the arbitration clause, and upto the time of
submission of award no objection is raised as to the jurisdiction of the
arbitrator the party must be estopped from raising such a plea after the
pronouncement of the award.

Bangladesh Water Development Board and others vs Progati
Prakaushali and another 49 DLR 335.

 

Section 115–

Promissory
estoppel–Though the tenant failed to pay rent within due date and became
technically a defaulter, the receipt of Salami, a practice . recognised in the
agreement between the parties, can be taken as a promissory estoppel debarring
the landlord to go beyond the terms of the agreement.

Munshi Amiruddin Ahmed vs Begum Shamsun Nahar 48 DLR 21.

 

Section 115–

The
Government could not be allowed to work inconsistently, whimsically and
capriciously to the prejudice of respondent later when the project was approved
by another lawful Government agency at an earlier point of time.

Chairman, Board of Investment and others vs Bay Trawling Limited
and other 51 DLR (AD) 79.

 

Section 115–

Right of
pre-emption which is a statutory right cannot be given up or taken away or
waived by mere allegation that the pre–emptor was present in the
sub–registrar’s office at the time of execution and registration of the deed in
question.

Abdus Sobhan Sheikh vs Kazi Moulana Jabedullah and others 52 DLR
289.

 

Section 115–

By
attestation to deed Exhibit A(2) the plaintiff cannot be held to have knowledge
of the contents of the deed in order to be estopped under section 115 of the
Evidence Act.

Wahida Begum vs Tajul Islam 52 DLR 491.

 

Section 115–

Promissory
Estoppel is a principle evolved by Courts on the principles of equity and to
avoid injustice. Where one party by his words and conduct make the other party
a clear promise that promise would be binding upon the former who would not be
entitled to go back from it.

Government of Bangladesh, & others vs ASM Firojuddin Bhuiyan
53 DLR 522.

 

Section 115–

In a case,
as in the instant one transaction by Exhibit B, where transfer is challenged
after lapse of considerable long time then recital in the document being of
long past can legally be considered, in the light of observation in the case
reported in AIR 1916 PC 110, genuine and the court may taking the recital along
with the circumstances go for making its decision as to validity of the deed.

Jitendra Nath Mistry vs Abdul Malek Howlader and ors 54 DLR (AD)
106.

 

Seciton 115–

Mere offer
and decline to offer do not constitute any waiver in law in order to act as an
estoppel to deny preemption.

Kamaluddin and others vs Md Abdul Aziz and others 56 DLR 485.

 

Section 116–

Promissory
Estoppel– Promissory estoppel not attracted when a promise would take the shape
of contract by making it enforceable as a contractual obligation.

Sarping Matsajibi vs Bangladesh 39 DLR 78.

 

Section 116–

Estoppel
deals with questions of fact and not with question of right.

DCCI vs Secretary 39 DLR 145.

 

Section 116–

Estoppel by
contract or tenant’s estoppel–explained. The estoppel as described in this
section is known as tenant’s estoppel or estoppel by contract. This estoppel is
founded upon a contract between the tenant and the landlord. It provides that
when a person enters into possession of immovable property as a tenant of
another person then neither he nor anybody claiming through him shall be
permitted during the continuance of the tenancy to deny the landlord’s title
however defective that title might be. This necessarily implies that in case
the tenant sets up a claim of title in himself he shall first surrender
possession to the person from whom he had taken it.

Abdus Sattar vs Mahiuddin 38 DLR (AD) 97.

 

Section 116–

A device
resorted to by tenant whereby he defaults to pay rent and when sued for
eviction, sets up plea of no relationship of tenant and landlord–Such a plea is
unavailing when origin of tenancy is proved.

Abdus Sattar vs Mohiuddin 38 DLR (AD) 97.

 

Section 116–

Section 116
is no bar when landlord’s title is lost or extinguished–If tenant claims a
title in himself, he must surrender possession to the landlord. If the landlord
determines the tenancy, but the tenant continues to stay on still bar of
section 116 will operate.

Abdus Sattar vs Mohiuddin 38 DLR (AD) 97.

 

Section 116–

Mere
non–payment of rent does not snap landlord and tenant relationship.

Abdus Sattar vs Mahiuddin 38 DLR (AD) 97.

 

Section 116–

On the death
of the tenant the tenancy can be determined by either party, if tenant’s heirs
stay on they must pay rent or quit.

Abdus Sattar vs Mohiuddin 38 DLR (AD) 97.

 

Section 116–

Tenant’s
Estoppel–Once a tenancy is established the tenant must vacate first and then he
can claim independent title.

Ramisunnessa Bibi and another vs Soleman Molla and others 48 DLR
31.

 

Section 116–

A tenant
cannot set up title to a property of which he is a monthly tenant without
surrendering possession to his landlord. Haji Kasimuddin Mondal being dead his
heirs

Afroza Bewa and others vs Md Jalaluddin Pramanik 48 DLR (AD) 205.

 

Section 116–

A tenant
cannot set up title to a property of which he is a monthly tenant without
surrendering possession to his landlord.

Rabiul Alam
and another vs Sree Bidhan Kumar Deb, Advocate 50 DLR 286.

 

Section 118–

In a case of
carnal offence the prosecution is to be believed in awarding conviction to the
offender even without material corroboration, if the victim’s evidence is found
believeable and trustworthy and does not suffer from any infirmity and inherent
disqualification.

Shamsul Haque (Md) vs State 52 DLR 255.

 

Section 119–

In case of a
witness who is dumb, provisions of section 119 · of the Act is applicable. Such
witness may make statement in writing or by using signs. But in case of a
witness who is both deaf and dumb, there is no scope of giving any evidence as
such witness cannot hear any question.

Morshed (Md) @ Morshed @ Md Morshed Alam vs State 53 DLR 123.

 

Section 133–

In a case
where bitter enmity is admitted between the parties it required as a rule of
prudence that there should be some such corroboration of the evidence of the
interested witness as may inspire confidence in the mind of the court.

Abul Kashem vs State 56 DLR 132.

 

Section 133–

This section
makes evidence given by a witness in a judicial proceeding admissible in a
subsequent judicial proceeding where the question in controversy in both
proceedings is identical and where the witness is dead, or cannot be found, or
is incapable of giving evidence.

State vs Ershad Ali Sikder and others 56 DLR 185.

 

Section 133–

Though
conviction of an accused on the testimony of an accomplice cannot be said to be
illegal, Courts will, as a matter of practice, not accept the evidence of such
a witness without corroboration in material particulars.

State vs Ershad Ali Sikder and others 56 DLR 305.

 

Sections 133 and 114(b)–

Though the
conviction of an accomplice cannot be said to be illegal yet the courts will,
as a matter of practice, not accept the evidence of such a witness without
corroboration· in material particulars.

State vs Ershad Ali Sikder and others 56 DLR 185.

 

Sections 133 and 114(3) –

The combined
effect of sections 133 and 114(b) is that though a conviction based upon
accomplice’s evidence is legal, the Court will not accept such evidence unless
it is corroborated in material particulars. The corroboration must connect the
accused with the crime.

State vs Ershad Ali Sikder and others 56 DLR 185.

 

Section 134–

Law does not
require any particular number of witnesses to prove a case and conviction may
be well–founded even on the testimony of a solitary witness provided his
credibility is not shaken.

Al–Amin and 5 others vs State 51 DLR 154.

 

Section 134–

It is true
that under section 134 of the evidence Act conviction can be based on the
Evidence of a single witness but the evidence of that witness must be of unimpeachable
character.

Bimal Chandra Das alias Vim and 3 others vs State 51 DLR 466.

 

Section 134–

Non–examination
of nearby people not fatal to the prosecution case when there are eye–witnesses
of the occurrence.

Milon @ Shahabuddin Ahmed vs State 53 DLR 464.

 

Section 134–

The trial
Court discarded the evidence of PW 2 as to the plaintiffs’ case of possession
since 1963 completely overlooking the provision of section 134 of the Evidence
Act.

Shishir Kanti Pal and others vs Nur Muhammad and others 54 DLR
440.

 

Section 134 –

If a witness
is otherwise found reliable or independent or non–partisan or disinterested,
the evidence of such a lone witness can be taken as the foundation in making
decision as to an issue in the case.

Shishir Kanti Pal and others vs Nur Muhammad and others 55 DLR
(AD) 39.

 

Section 134–

Though in
certain cases even a single witness is enough to prove the case of a party but
in the present case the above principle should not be applied, especially when
PW 1 is an interested witness, and evidence as to consideration money was not
uniform.

Siraj Mia (Md) vs NasimaAkhter and anothe 55 DLR 554.

 

Section 134–

Corroborative
evidence is not an imperative component in every case of rape. The rule is not
that corroboration is essential before there can be a conviction.

Shibu Pada Acharjee vs State 56 DLR 285.

 

Section 134–

The
well-known maxim which is a Golden Rule that “evidence has to be weighed
and not counted” has been given statutory placement in section 134 of The
Evidence Act which provides that no particular number of witnesses shall in any
case be required for the proof of any fact.

Shibu Pada Acharjee vs State 56 DLR 285.

 

Section 135–

Recalling a
witness– No explanation having been given as to why defendant–petitioners
failed to cross-examine PW 1 and what prejudice will be caused in the absence
of his cross-examination the judge rightly rejected the application for
recalling the witness.

Abu Bakkar vs Akbar Ali Biswas 45 DLR 62.

 

Section 137–

Court is to
consider the evidence of witnesses in their examination–in­ chief in
juxtaposition with their cross-examination.

Abul Khair and another vs State 55 DLR 437.

 

Section 137–

The wife at
the relevant time of occurrence was at her husband’s house and that she is
subsequently found dead an obligation is cast upon the defence to account for
the circumstances leading to the death of the deceased failing which the
husband will be responsible for the death of the deceased.

Gias Uddin vs State 55 DLR 328.

 

Section 138–

Re-examination
shall not be allowed to destroy the effect of cross-­examination.

Ihteshamur
Rahman vs Masuda Khatun and others 50 DLR 159.

 

Section 138–

The right of
the adverse party to cross–examine a witness is never confined to the facts
deposed to by the witness in his examination–in–chief but it extends to all
matters relating to the suit. The adverse party has the right to cross–examine
a witness on all facts relevant in the suit.

Khalilur Rahman (Md) vs Asgar Ali 52 DLR 145.

 

Section 145–

Decision of
the majority Judges– Defendant’s deposition Exts.5 and 6 are inadmissible under
section 19 of the Evidence Act.

Notwithstanding
the challenge given as to the admissibility of Exts.5 ‘and 6 which have been
treated as substantive evidence, the High Court Division took the view that
those previous statements are admissible for the purpose of contradiction. With
respect, this conclusion is not founded on law. Exts.5 and 6 are inadmissible
in evidence and they cannot constitute as admission within section 19 of the
Evidence Act.

Khorshed
Alam vs Amir Sultan 38 DLR (AD) 133.

 

Section 145–

View of
Shahabuddin, J (minority)– Deposition by the defendant in previous rent and
money suits to the effect that he did not know his mother’s name or where she
lived etc.–He may be confronted with such deposition in a subsequent case under
section 145 Evidence Act to test his veracity.

Khorshed
Alam vs Amir Sultan 38 DLR (AD) 133.

 

Section 145–

Principle of
law regarding cross–examination –failure of a party to cross-­examine the
witness of his adversary on material evidence–effect of– This rule of cross­-examination
is not merely “a technical rule of evidence” but also “a rule of
essential justice”

Nur Mohammad
vs Sultan Ahmed 40 DLR 369.

 

Section 145–

The recital
of kabala per se shall not go into evidence unless the person who made the
recital raises any objection therefor.

Feroja Khatoon vs Brajalal Nath 43 DLR 160.

 

Sections 145 and 157–

Statement
recorded behind the back of the accused the same cannot be treated as
substantive evidence against him. Such statement can be used to corroborate or
to contradict a statement made in the court in the manner provided in sections
145 and 157 of the Evidence Act.

Hobi Sheikh and another vs State 56 DLR 383.

 

Section 154–

Evidence of the witness, who has been declared
hostile, would ipso facto not be of any worth for the prosecution, rather if on
consideration of the evidence of such kind of witness it is found that evidence
on record either has established the case of the prosecution or that
prosecution case does not stand scrutiny then whatever order in any respect is
made by the Court the same is very much sustainable in law.

Mobarak
Hossain alias Mobarak vs State 56 DLR (AD) 26.

 

Section 155–

Contradictory
statement as to the presence of convict Captain Kismat Hashem at Road No. 32 in
the house of Bangabandhu Sheikh Mujibur Rahman casts a great doubt.

State vs
Lieutenant Colonel Syed Farook Rahman 53 DLR 287.

 

Section 155(3)–

In the
instant case except asking the PW 1 about filing of the written statement, the
content thereof with which the PW 1 presently making any inconsistent statement
was not put to him in order to enable the respondents to explain the
circumstances against him. In that view of the matter, the content of written
statement though contradictory to the defendant’s own case of transfer, could
not be produced and relied in order to contradict PW 1.

Ahmed lmpex
(Private) Ltd & others vs Moqbul Ahmed 56 DLR (AD) 92.

 

Section 156–

The
testimony of the victim of sexual assault is vital and unless there are
compelling reasons which necessitate looking for corroboration of her
statement, the court should find no difficulty in acting on the testimony of a
victim of sex crime alone to convict an accused where her testimony inspires
confidence and is found to be reliable.

Al–Amin and
5 others vs State 51 DLR 154.

 

Section 157–

Absence of
corroborative evidence does not necessarily mean lack of legal evidence.

Ayub Ali
(Md) vs Abdul Khaleque 56 DLR 489.