Md. Abu Taher Vs. Md. Jashim Uddin and anohter (Md. Badruzzaman, J.)

HIGH COURT DIVISION

(Civil Revisional Jurisdiction)

Mr. Sharif Uddin Chaklader,   J..

And

Mr. Md. Badruzzaman, J.

Judgment

21.06.2012

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 Md. Abu Taher

…Petitioner.

Vs.

Md. Jashim Uddin and another

…Opposite parties

Evidence Act (I of 1872)

Section 92

Oral evidence led on behalf of defendant No.1, the vendor has been corroborated by two other witnesses. Evidence of these three witnesses including the vendor is not admissible insofar as it relates to contradicting or varying the terms of the document in the light of the provisions of section 92 of the Evidence Act. As per above observations and considering the facts of the case it can safely be held that Ext. 1 is a bainapatra, not an agreement for loan or mortgage deed.  

…(14)

Specific Relief Act (I of 1877).

Section 12

Plaintiff has successfully proved that he fulfilled his obligations and was very much willing and ready to get the kabala from defendant after payment of the balance of the consideration money within the stipulated period, there being  no controversy regarding the failure of defendant-petitioner to perform his obligations within period allocated to him, the suit for specific performance cannot fail.                                                   ….(22)

 

Code of Civil Procedure (V of 1908)

Section 115 (1)

The trial Court and the lower appellate Court are the final Courts of fact. The suit having been concluded on concurrent finding of fact, it is very difficult to interfere with the findings of facts sitting under revisional jurisdiction as those are binding upon High Court Division as a revisional Court under section 115(1) of the Code of Civil Procedure, unless it is found that the concurrent findings of fact are perverse being contrary to law or based on non-consideration or misreading or non-reading of the material evidence affecting the merit of the case.                                         …(25)

Feroza Majid vs. JB Corporation, 39 DLR (AD) 78; Jainal Abedin Molla vs. Atiar Rahman, 1983 BLD (AD) 105; Ram Chandra Das Vs. Md. Khalilur Rahman and another, 37 DLR (AD) 21; Abdul Alim Akondo Vs. Government of Bangladesh and others, 16 MLR (AD) 417; Abdul Gagfur Vs. Md. Abdur Razzak, 62 DLR (AD) 242 ref.

Judgment

Md. Badruzzaman, J.

        This Rule, at the instance of the defendant No.1- appellant, directed against judgment and decree dated 2.5.2010 passed by the learned Additional District Judge, 1st Court, Kishoregonj in Other Class Appeal No. 45 of 2009 disallowing the appeal and affirming the judgment and decree dated 9.4.2009 passed by the learned Joint District Judge, 1st Court, Kishoregonj in Other Class Suit No. 19 of 2003 decreeing the suit.

  1. 2.           The opposite party No.1 as plaintiff instituted the above suit for specific performance of contract in respect of the suit shop along with 2.50 decimal land as described in the schedule to the plaint. The case of  plaintiff is that defendant No. 1 in need of money for carrying out business, executed a bainapatra on 16.11.2002  in favour of  plaintiff for selling  the suit shop along with 2.50 decimal land for a total consideration of Tk. 5,00,000/- and received Tk. 3,00,000/- as earnest money out of the total consideration. It was stipulated in bainapatra that  defendant would execute and register the relevant sale deed in favour of  plaintiff if he would pay the balance of the  consideration money within three months from the date of execution of the bainapatra and it was also stipulated in  bainapatra that if  defendant be able to return the said Tk. 3,00,000/- with compensation to  plaintiff within that period of three months  bainapatra would stand cancelled . As per the terms of said bainapatra defendant failed to return the said amount of Tk. 3,00,000/- with compensation within the said stipulated period and thereafter plaintiff on 20.2.2003 requested defendant No.1  to execute and register the relevant deed of sale in presence of Moijuddin and Abu Taher on receiving the balance of the consideration but defendant refused to execute and register the deed of sale in favour of plaintiff in pursuant to the aforesaid bainapatra and hence the suit.
  2. 3.           Defendant No. 1, petitioner contested the suit by filing a written statement denying all the material facts as stated in the plaint. His case, in brief, is that, plaintiff is a money lender. He lends money to others by receiving high rate of interest. Defendant rented the shops to different persons by erecting a half building on the suit land. Defendant, being in need of money for sending his son and nephew abroad, approached for a loan amounting to Tk. 3,00,000/- to  plaintiff and  plaintiff demanded Tk. 8,000/- as interest per month and accordingly defendant No. 1 took a loan amounting to Tk. 3,00,000/- from  plaintiff  with an interest at the rate of Tk. 8,000/- per month and also mortgaged the suit shop to plaintiff. Defendant thereafter executed an agreement in favour of plaintiff with that regard but he was unable to read the contents of the agreement at the time of execution as he was in dire need of money. Defendant paid interest to plaintiff at the rate of Tk. 8,000/- per month. He also  returned  the loan amount  of Tk. 3,00,000/- to   plaintiff on 16.2.2003 in presence of witnesses but at the  time of returning the loan  amount plaintiff did not return  the  said agreement with a plea that he could not trace out the agreement and  he agreed that he would  return the same  as and when he could trace it out.  Plaintiff without returning the agreement filed the suit with a malafide intention and in breach of trust and as such the suit is liable to be dismissed with cost.
  3. 4.           Both parties adduced oral evidence. Alleged bainapatra has been produced by plaintiff and after formal proof it has been marked as exhibit-1. Trial Court upon consideration of the evidence on record decreed the suit by judgment and decree dated 9.4.2009.  Being aggrieved and dissatisfied with aforesaid judgment and decree of trial Court defendant No.1 preferred Other Class Appeal No. 45 of 2009 in the Court of District Judge, Kishoregonj which, on transfer, was heard and disposed of by the learned Additional District Judge, 1st Court, Kishoregonj who, after hearing, disallowed the appeal by judgment and decree dated 2.5.2010 affirming those of the trial Court. Against the aforesaid judgment and decree of appellate Court instant revisional application was filed before this Court by defendant and the present Rule was issued.
  4. 5.           Mr. Md. Ali Azzam, learned Advocate appearing on behalf of defendant-appellant-petitioner, placed the revisional application, impugned judgments of the Courts below and other materials on record and submits that both the courts below committed a serious error of law in decreeing the suit against the weight of the evidence. He further submits that the courts below failed to consider that  defendant-petitioner did not enter into any agreement for sale or bainapatra in respect of the suit shop with plaintiff-opposite party and that  defendant-petitioner took a loan amounting to Tk. 3,00,000/- with an interest at the rate of Tk. 8,000/- per month from  plaintiff-opposite party and signed a document on that regard but plaintiff collusively made  a bainapatra instead of an agreement for loan, keeping defendant-petitioner in a dark. He further submits that  plaintiff failed to discharge his onus to prove the alleged bainapatra and both the courts below erred in law resulting in an error in the decision occasioning failure of justice in decreeing the suit and as such the judgment and decree passed by the courts below  are liable to be set aside.
  5. 6.           Mr. M.M. Haque Siddique (Rana),  learned Advocate appearing on behalf of  plaintiff-opposite party No.1, on the other hand, submits that the findings of fact arrived at by the courts below are concurrent and the same are based on proper appreciation of evidences on record. That being so the High Court Division in revision can not upset the concurrent findings of fact arrived at by the courts below. He further submits that the suit being a suit for specific performance of contract, the courts below having found that the contract is valid have rightly decreed the suit and no error of law has been committed.
  6. 7.           Learned Advocate for the opposite party by referring to exhibit-1, the alleged bainapatra, submits that as per stipulation of the bainapatra plaintiff offered the balance of the consideration money to defendant in presence of the witnesses and requested the defendant to execute and register the relevant deed of sale and as the defendant refused, the plaintiff has been constrained to institute the suit for specific performance of contract.
  7. 8.           Lastly, the learned Advocate submits that both the trial Court and appellate Court have come to the specific conclusion that defendant has not been able to prove that the amount of Tk. 3,00,000/- which was admittedly received by defe-ndant from plaintiff was a loan and he returned the said loan amount of Tk. 3,00,000/- with interest to plaintiff by adducing sufficient evidence. This finding of fact being based on proper appreciation of evidence can not be interfered with by this Court in revisional jurisdiction and prays for discharging the Rule.
  8. 9.           We have heard the learned Advocates of both the parties at length and have also gone through the records of the case in minute particulars.
  9. 10.       On the pleadings of the parties and the evidence led by them following questions calls for determination. At first, whether Ext. 1 is a bainap-atra or a loan agreement and whether plaintiff has been able to prove Ext. 1 as bainapatra, and next, whether the amount of Tk. 3,00,000/- admittedly received by defendant from  plaintiff was returned by defendant to plaintiff and lastly whether  plain-tiff has been able to prove his case and is entitled to get a decree for specific performance of contract or to enforce the said contract.
  10. 11.       The first question for consideration is whether Ext. 1 is a bainapatra or a loan agreement and whether plaintiff has been able to prove Ext. 1 as bainapatra.
  11. 12.       The contention of plaintiff is that he paid Tk. 3,00,000/- on 16.11.2002 to defendant No.1 as earnest money out of Tk. 5,00,000/-, which  was  the  consideration money and defendant No.1 ente-red into an agreement for sale of the suit shop along with 2.50 decimal land to plaintiff. As defendant No.1 did not execute and register the kabala in question plaintiff filed the suit for specific performance of contract. To prove the said contention plaintiff examined three witnesses and formally proved bainapatra which has been marked as exhibit-1 and it is found by the trial Court that by oral evidence plaintiff has been able to prove that defendant No.1 has entered into an agreement for sale with plaintiff in respect of the suit property after receiving Tk. 3,00,000/- as earnest money out of total consideration of Tk. 5,00,000/- in presence of the witnesses. The court also found that P.W. 1, plaintiff himself supported the plaint case by oral evidence. P.W.3 has also supported the plaint case that defendant No.1 executed a bainapatra in favour of plaintiff on receiving Tk. 3,00,000/- as earnest money by cheque from plaintiff and he was present at the time of execution of bainapatra and defendant No.1 put his signature to the bainapatra  after knowing the contents of bainapatra. He is a witness to the bainapatra. He stated that the baina money was paid to defendant in his presence and he also put his signature in the bainapatra. P.W.2 has also supported the case of plaintiff. Defendant in his deposition admitted his signature in the written bainapatra as the executant, which was categorically supported by other witnesses. Trial Court also found that  defendant No. 1 could not able to prove that he had taken  a loan  of Tk. 3,00,000/- from plaintiff  and signed the agreement for loan without  going through the  contents thereof and he was unable to read the contents of the agreement as he was in dire need of money by adducing sufficient evidence. Appellate Court after discussing the evidence on record upheld all these findings of fact as arrived at by trial Court and both the trial Court and the lower appellate Court concurrently found that the exhibit-1 is a bainapatra .
  12. 13.       In the case of Feroza Majid vs. JB Corporation reported in 39 DLR (AD) 78, their Lordships held that “oral or extraneous evidence to contradict the terms of the contents of   a document is inadmissible under section 92 of the Evidence Act”.  In that case it was also held that “Section 91 of the Evidence Act provides that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, no evidence shall be given in proof of the terms except the document itself, or its secondary evidence where permissible. Section 92 of the Evidence Act which is in fact the continuation of section 91, prohibits the consideration of any oral or extraneous evide-nce to contradict the terms of an instrument when it is proved under section 91, subject, of course, to certain exceptions. There is uniformity of the judicial authorities on the question of exclusion of oral evidence by documentary evidence, and it is an established rule of evidence that oral evidence is inadmissible for the purpose either of construing the terms of a document or of ascertaining the intention of the parties thereto”. In the case of Jainal Abedin Molla vs. Atiar Rahman reported in 1983 BLD (AD) 105 our apex Court also held that “no evidence is admissible to vary the contents of the    documents by any oral evidence”.  Now let us see the document i.e Ext. 1 itself.
  13. 14.       On the face of it, Ext. 1 is evidently executed by defendant No.1 for selling the suit shop on receiving Tk. 3,00,000/- as earnest money out of the total consideration of Tk. 5,00,000/-. It  also contains a recital that the vendor i.e  defendant No. 1 will execute and  register the relevant deed of sale if the vendee i.e  plaintiff pay the balance of the consideration money within three months. Contention of the vendor was that he in need of money for sending his son and nephew abroad, approached for a loan amounting to Tk. 3,00,000/- to the vendee and the vendee demanded Tk. 8,000/- as interest per month and  he took a loan amounting to Tk. 3,00,000/- from the vendee  with an interest at the rate of Tk. 8,000/- per month and also mortgaged the suit shop to the vendee. The vendor thereafter executed an agreement in favour of the vendee with that regard but he was unable to read the contents of the agreement as he was in dire need of money. But nothing of this sort was mentioned anywhere in the deed, Ext. 1, and this claim is entirely rested upon oral evidence of the vendor. Oral evidence led on behalf of defendant No.1, the vendor has been corroborated by two other witnesses. Evidence of these three witnesses including the vendor is not admissible so far as it aims at contradicting or varying the terms of the document in the light of the provisions of section 92 of the Evidence Act. As per above observations and considering the facts of the case it can safely be held that Ext. 1 is a bainapatra, not an agreem-ent for loan or mortgage deed.
  14. 15.       Next question for consideration is whether the amount of Tk. 3,00,000/- admittedly received by defendant from plaintiff was returned by defendant to plaintiff.
  15. 16.       The contention of  defendant is that he took Tk. 3,00,000/- as loan  from  the plaintiff  with an interest at the rate of Tk. 8,000/- per month and he signed an agreement for loan and mortgaged the suit  shop to  plaintiff  and he also returned  the said loan with interest to  plaintiff on 16.2.2003. In support of his claim defendant No.1 examined three witnesses out of which D.W.3 was declared hostile. Both the  courts below after proper appreciation of the evidence on record concurrently found that the  oral witnesses of defendant were not able to prove the said claim of defendant and also  defendant had  not been able to produce  any paper  to show that he returned Tk. 3,00,000/- with interest to plaintiff. We do not find any illegality in the above observation of the Courts below.
  16. 17.       The last question for consideration is whether plaintiff has been able to prove his case  and is entitled to get a decree for specific performance of contract or to enforce the said contract.
  17. 18.       Learned Advocate for the petitioner by an alternative argument submits that even if defendant admits the bainapatra then also plaintiff will not get decree for specific performance of contract as time was the essence of the contract  in as much as  plaintiff had not been able to pay the balance of the consideration money within 3(three) months from the date of execution of bainapatra as stipulated in it.
  18. 19.       In reply to this contention, learned Advocate for the opposite party by referring  exhibit-1, bainapatra, submits  that time was not the essence of the contract in as much as though there was a condition in the bainapatra to the effect that if plaintiff is able to pay the balance of the consideration money within three months,  defendant will execute and register the relevant sale deed, but there was another condition that if  vendor-defendant is able to refund the earnest money of Tk. 3,00,000/- with compensation to  vendee-plaintiff within that period, the bainapatra shall stand cancel. He further submits that as per the aforesaid stipulation  plaintiff had to wait for the said period of  three months to enable defendant to refund the earnest money within that period and after the expiry of the said three months on 16.2.2003,  plaintiff offered the balance of the consideration money on 20.2.2003 to  defendant in presence of the witnesses and requested  defendant to execute and register the relevant deed of sale and being refused by defendant,  plaintiff was constrained to institute the suit for specific performance of contract and as such he is entitled to get decree for specific performance of contract.
  19. 20.       On a look into exhibit-1, bainapatra we have found some conditions therein which is quoted verbatim below:

Òevqbv ev` eµx UvKv Avgv‡K AvMvgx 03 gv‡mi g‡a¨ cwi‡kva KiZt Avcbvi KIjv m¤úv`b I †iwRóªvix Kwiqv wb‡eb| D‡jøL¨ hw` D³ 3 gv‡mi g‡a¨ Avcbvi evqbv cÖ`Ë D‡jøwLZ 300000/- wZb jÿ UvKv ÿwZc~iY mn †diZ cÖ`v‡b mgZ© nB Z‡e evqbv cÎ evwZj e‡j MY¨ nB‡e| Avi hw` D³ †gqv‡`i g‡a¨ D³ UvKv ÿwZc~iY mn †diZ `v‡b mgZ© bv nnB Z‡e AÎ evqbv cÎ ejer _vwK‡e Ges Aewkó UvKv Avgv‡K cwi‡kv` KiZt Avcbvi KIjv Kwihv A_©vr m¤úv`b I †iwRóªvix Kwiqv wb‡eb|Ó

  1. 21.       On perusal of the conditions as quoted above it is clear that plaintiff had an obligation to pay the balance of the  consideration money to  defendant within 3 (three) months from the date of execution of  bainapatra dated 16.11.2002 but that condition depends upon the  next condition wherein it was stipulated that if defendant is able to return the earnest money with compensation to plaintiff within that period, the bainapatra would stand  cancelled and if  defendant is failed to return  the  said  money  with compensation within that period the bainapatra would  remain as it was without mentioning any time limit for plaintiff to pay the balance of the consideration money. So as per the above conditions plaintiff had no other option other than to wait for a period of three months i.e up to 16.2.2003. So in our view time was not the essence of the contract on the part of plaintiff. This view finds support in the case  of Ram  Chandra Das Vs. Md. Khalilur Rahman and another  reported in 37 DLR(AD) 21 where it was observed that “when time is made the essence of the contract under which parties thereto agree  mutu-ally to undertake certain obligations, it would be necessary to find whose failure  to carry out  his  obligations within the time mentioned in the contract the  same could not be performed. It is necessary to find whose unwillingness to perform his part of the obligation under the contract eventually led to the nonperformance of the contract. In a suit for specific performance of contract, plaintiff must succeed if his readiness and willingness to perform the obligations under-taken by him are proved”.
  2. 22.       It appears that both the courts below after elaborate discussions of the evidence on record concurrently found that after the expiry of the period of three months on 16.2.2003, plaintiff offered the balance of the consideration money on 20.2.2003 to defendant in presence of the witnesses and requested  the defendant to execute and register the relevant deed of sale in favour of  plaintiff and defendant failed to perform his obligation. So it can be said that plaintiff has successfully proved that he fulfilled his obligations and was very much willing and ready to get the kabala from defendant after payment of the balance of the consideration money within the stipulated period, there being  no controversy regarding the failure of defendant-petitioner to perform his obligations within period allocated to him, the suit for specific performance can not fail.
  3. 23.       At last learned Advocate for the defendant-petitioner submits that both the courts below committed a serious error of law in decreeing the suit against the weight of the evidence and upon non- consideration and misreading of evidence and thus committed an error of law in the decision occasioning failure of justice.
  4. 24.       In reply to the said argument of learned Advocate for petitioner, learned Advocate for plaintiff-opposite party No.1 submits that in the instant case the findings of fact arrived at by the courts below are concurrent and the same are based on proper appreciation of evidences on record. That being so the High Court Division in revision can not upset the concurrent findings of fact arrived at by the courts below. Let us see the legal aspect of the point raised by the learned Advocate of both the parties.
  5. 25.       We have already noticed that both the courts below after discussions of the materials on record as well as evidence of both the parties arrived at a common finding that plaintiff has been able to prove the bainapatra for valuable consideration and his willingness to pay the balance consideration in time as stipulated in the bainapatra. Learned Advocate for petitioner could not show from the record that the concurrent findings of the Courts below on this point based on misreading or non-reading or non-consideration of the evidence on record or misinterpretation of any material document. From the facts and circumstances of the case we find substance in the contention raised by the learned Advocate for plaintiff opposite party No.1 that the Courts below in the facts and circumstances of the case committed no illegality in decreeing the suit as prayed for. The trial Court and the lower appellate Court are the final Courts of fact. The suit having been concluded on concurrent finding of fact, it is very difficult to interfere with the findings of facts sitting under revisional jurisdiction as those are binding upon High Court Division as a revisional Court under section 115(1) of the Code of Civil Procedure, unless it is found that the concurrent findings of fact are perverse being contrary to law or based on non-consideration or misreading or non-reading of the material evidence affecting the merit of the case. This contention finds support in the case of Abdul Alim Akondo Vs. Government of Bangladesh and others reported in 16 MLR (AD) 417 where it has been observed that “the finding of fact of the final Court of fact on concurrent  finding can not be disturbed by the revisional Court.” Similar observation has been made in the case of Abdul Gagfur Vs. Md. Abdur Razzak reported in  62 DLR (AD) 242 where their Lordships held that “Courts below also concurrently found that the defendants have failed to prove their right, title, interest and possession in the suit lands by adducing oral and documentary evidence. These findings of fact are not immune from interference by the High Court Division in exercise of revisional jurisdiction in the absence of misreading or non-consideration of the evidence on record. The learned judge of the High Court Division has exceed its jurisdiction in interfering with the concurrent findings of fact, which is liable to be interfered with.”
  6. 26.       Judgment of the trial Court which was affirmed by the appellate Court, as we see, do not find that the judgments are tainted with legal infirmity or perversity justifying interference. We ourselves also examined the record of the case and in our view there are sufficient evidence and materials on record to come to the decisions which have been arrived at by the courts below. The judgments of the courts below thus, do not warrant any interference by us as the Courts below have not committed any error of law resulting in an error in the decision occasioning failure of justice.
  7. 27.       In view of the discussions made above we hold that this civil revisional application is incompetent.
  8. 28.       In the result, the Rule is discharged without any order as to costs. The judgment and decree dated 2.5.2010 passed by the learned Additional District Judge, 1st Court, Kishoregonj in Other Class Appeal No. 45 of 2009 disallowing the appeal and affirming the judgment and decree dated 9.4.2009 passed by the learned Joint District Judge, 1st Court, Kishoregonj in other Class Suit No. 19 of 2003 decreeing the suit is hereby maintained.

        Order of stay granted at the time of issuance of Rule, which was extended time to time, stands vacated. Let a copy of the judgment along with the lower Courts record be sent down at once.

Ed.


*Civil Revision No. 1983 of 2010.

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