Appellate Division Cases
Md. Azizul Huq alias Md. A. Aziz and others ………………….Appellants
Sree Pinna Chandra Das alias Sree Puma Chandra Dhupi
Latifur Rahman. C. J
Mahmudul Amin Coudhury J
Mainur Reza Chowdhury. J
Md. Ruhul Amin. J
JUDGEMENT DATE: 06th February , 2001
As a first court of appeal the High Court Division ought to have considered the evidence both oral and documentary adduced from the sides of the contesting parties to arrive at a correct finding ………………………(4)
Such type of judgment is not expected from the learned Judges of the High Court
Division and as such we are inclined to send the case back to that Division for hearing the appeal afresh on merit …………………(6)
Civil Appeal No. 72 Of 1997 (From the judgment and order dated 18 March, 1997 passed by the High Court Division in First Appeal no . 166 of 1995).
Mr. Khandker Mahbubuddin Ahmed, Senior Advocate, instructed by Mvi, Md. Wahidullah, Advocate-on-Record ……….For appellants
S.S Haider, Senior Advocate instructed by Md. Ataul Huq, Advocate-on-Record
………………..For respondent NO.l
Exparte …………….For respondent No. 2
1. Mahmudul Amin Choudhury, J :- This appeal by leave is against judgment and decree passed by a Division Benchof the High Court Division in First Appeal No. 166 of 1995 . The High Court Division by judgment dated 18 March, 1997 allowed the appeal and dismissed the suit.
2. The short fact leading to this petition is that defendant-appellant wanted to sent his son
to middle east for earning his livelihood and as money was required for the purpose defendant No. 1 Sree Purna Chandra Das executed an unregistered bainapatra on 24.11.1991 for selling 4.32 acres of land to the plaintiff at a consideration of Tk 2,50,000/- on receiving earnest money of Tk,50,000/- Subsequently on 16.3.1993 defendant refused to register the sale deed in pursuance of the aforesaid ‘bainapatra’.
3. The suit was contested by the defendant and his case is total denial of the execution of
the ‘bainapatra’ and further case is that the signature appearing in the alleged ‘ bainapatra’ is an act of forgery and the land included in the ‘ bainapatra’ originally belonged to him a and his brother Rajendra,. This Rejendra died leaving behind his widow Dhairjay Bala and the defendant and Dhairjay Bala are now owners of the property. It is the further case of the defendant that when the defendant wanted to send his son to Middle East he approached the plaintiff and requested him to purchase 52 acre of land which he refused. Thereafter a ‘bainapatra’ was executed in favour of Abdur Rahman on 7.1.1993 for selling the land at a consideration of Tk.65,000/- and Tk . 50,000/- was received as earnest money. Thereafter the trial court on consideration of the evidence on record both oral and documentary decreed the suit by judgment dated 30.3.1995 . Then the defendant referred
aforesaid First Appeal No. 166 of 1995 before the High Court Division and a Division
Bench of the Division by judgment dated 18 March, 1997 allowed the appeal and set aside the judgment and decree passed by the trial court and dismissed the suit as aforesaid. Thereafter the plaintiff moved this Division and leave was granted on the following terms:
“Khandker Mahbudding Ahmed, learned Advocate for the plaintiff that there is no wrong in the judgment of the High Court Division but he found difficulty in controvert the submission made by Mr. Khandker that there was total non-consideration of the evidence by the High Court Division. petitioners submits that the impugned judgment is bad on the face of it in that whereas the trial court judgment runs into 50 pages the judgment passed in appeal in not more than 7 pages which shows complete lack of application of mind to the evidence on record. Mr. Ahmed submits that the High Court Division decided the
appeal only upon considering the evidence of D. W. 3 and no other evidence and materials on record. The miscarriage of justice is therefore apparent. Mr Ahmed submits that this is a fit case in Which this Division should make an order of remand for deciding the appeal upon a proper consideration of all the evidence and materials on record.”
4. Mr. kahandker Mahbubuddin Ahmed, learned Counsel for the appellants placed
before us the judgment of the trial court as well as of the High Court Division and it appears that while disposing of this First Appeal the High Court Division has not at all considered the oral and documentary evidence adduced from the side of the plaintiff. Only after consideration of the cross -examination of D.W. 3 the suit was dismissed. It appears that the appeal was disposed by the High Court Division in the absence of the appellant but even in such a situation the evidence of plaintiff’s side have not been at all considered. The appeal was disposed of in a slip shod manner. As a first court of
appeal the High Court Division ought to have considered the evidence both oral and documentary adduced from the sides of the contesting parties to arrive at a correct finding which is very much lacking in the present case.
5. Mr. S. S, Haider, learned Advocate appearing for the respondent on the other hand
placing the judgment of the trial court submits
6. We have gone through the judgment of the High Court Division which is the final court of fact and we are of the view that the appeal was disposed of in a very slip shod manner which requires interference. Such type of judgment is not expected from the learned Judges of the High Court Division and as such we are inclined to send the case back to that Division for hearing the appeal afresh on merit. The appeal is accordingly allowed. There is no order as to costs.
Source: I ADC (2004), 214