Hosna Ara Begum & ors Vs. Montaj Ali & ors

Appellate Division Cases

(Civil)

PARTIES

Hosna Ara Begum & ors…………………….Appellants

-VS-

Montaj Ali & ors………………………….. Respondents

JUSTICE

Latifur Rahman CJ

Mahmudul Amin Choudhury J

Mainur Reza Chowdhury J

Mohammad Gholam Rabbani J

Md. Ruhul Amin J

JUDGEMENT DATE: 15th January 2001.

The Small Cause Courts Act. Section 25

Found that the postal money order was sent on 13.9.1991 for the second time in the name of the plaintiff no.2 i.e. obviously one of the heirs of the deceased landlord. Thus we find force in the submission of the learned Advocate for the appellants that there was sufficient materials on record to uphold the finding of the trial court that the defendants defaulted in the payment of rent ……………………(6)

The legal position is that where evidence has been duly placed before the trial court and it has decided the suit on merit the revisional court has no power to remand by shirking its duty particularly solely for the purpose of writing the judgment afresh.

This appeal, therefore, must succeed………………………(7)

Civil Appeal No. 198 of 2000 (From the Judgment and Order dated 13.8.1998 passed by the High Court Division in Civil Revision No. 1200 of 1996)

Azizur Rahman Chowdhury, Advocate, instructed bv Md. Nowab Ali, Advocate -on-

Record ……………………… For the Appellants

Sharifuddin Chaklader, Advocate-on-Record………………………..For the Respondents.

JUDGMENT

1. Mohammad Gholam Rabbani J: This matter has arisen out of a small cause court suit for ejectment of monthly tenants instituted by the appellants before us against the tenant-respondents. The suit was decreed by the judgment and decree dated 8.11.1995 on the finding that the tenant-defendants were habitual defaulters in the payment of rents during the period from March. 1986 to August, 1986 vide rent receipt exhibit-B and during the period from January, 1981 to December, 1981 vide rent receipt exhibit-B(l).

2. The defendants obtained rule from the High Court Division in Civil Revision No. 1200 of 1996 upon a revisional application under section 25 of the Small Cause Courts Act. By the judgment and order dated 13.8.1998 a learned Single Judge of the High Court Division made the rule absolute holding. “From the findings and decision of the trial court it is not clear whether the defendants are defaulters or not for the period as alleged by the plaintiff, and sent the suit back on remand to the trial court two write out judgment afresh considering the evidence on record both oral and documentary.

3. Plaintiffs then obtained leave on the ground that the High Court Division itself could have decided the matter in the exercise of its power under section 25 of the Small Cause Courts Act on the basis of the evidence already on record instead of remanding the suit to the trial court, particularly when the evidence clearly disclosed that the tenants defaulted in payment of rent.

4. Learned Advocate for the appellants draws our attention to the page of the judgment of the High Court Division where deposition of the defendant no. 1 Montaj Ali as D.W.I has been quoted and submits that upon perusal of the said deposition it is clear that the defendant-tenants defaulted in the payment of rent at least for the month of August, 1991.

5. Learned Advocate for the respondents finds difficult to oppose the submission of the learned Advocate for the appellants. We have perused the quoted portion of the deposition of D.W. 1 wherein he admitted that he sent rent by post for the month of August, 1991 in the name of the original landlord and the money order was returned on 11.9.1991 with the endorsement that the landlord had died and that thereafter on 19.9.1991 he sent the rent by postal money order on 19.9.1991 and it was returned to him on 6.10.1991.

6. From the judgment of the trial court it is found that the postal money order was sent on 13.9.1991 for the second time in the name of the plaintiff no.2 i.e. obviously one of the heirs of the deceased landlord. Thus we find force in the submission of the learned

Advocate for the appellants that there was sufficient materials on record to uphold the finding of the trial court that the defendants defaulted in the payment of rent.

7. Though the learned Judge of the High Court Division quoted the relevant portion of

the deposition of D.W.I as noticed by us, but he failed to consider the same properly resulting error in his finding. Further, the legal position is that where evidence has been duly placed before the trial court and it has decided the suit on merit the revisional court has no power to remand by shirking its duty particularly solely for the purpose of writing the judgment afresh. This appeal, therefore, must succeed.

8. In the result the appeal is allowed without any order as to costs. Judgment and order dated 13.8.1998 passed by the High Court Division in Civil Revision No. 1200 of 1996 are set aside and the judgment and decree dated 8.11.1995 passed by the S.C.C. Judsje,

Sadar, Sylhet, in S.C.C. Suit No. 3 of 1992 are restored.

Ed.

Source: IV ADC (2007), 286