Md. Nururl Huq @ M.N. Huq…………………… Appellant
= vs =
Nirmal Chandra Dutta and another………………Respondents
Syed J. R. Mudassir.
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
JUDGEMENT DATE: 5th April. 2004
provision of Order XXIII Rule 3 read with order VI Rule 15 of the Code of Civil Procedure and also to Rules 17 and 19 of Civil Rules and Orders (CRO) Volume-I and Section-XVI of the Manual of Civil Suit Instructions, Section 73 of the Evidence Act In this view of the matter we feel inclined to allow the appeal setting aside the impugned judgment and decree, the suit being an old one, we however , do not like to send it hack to the Trial Court and would, therefore remand it to the High Court Division.
In view of our decision to remand the appeal for fresh hearing we do not like to embark upon discussing the merits in the submissions of either parties. ..(9)
… it was the duty of the courts below to send the impugned documents to Hand Writing Expert for opinion. Such opinion being not taken by either of the Courts below the impugned judgment, according to us, calls for interference….(8)
Civil Appeal No. 150 of 2003 (From the judgment and order dated 25.06.2001 passed by the High Court Division in Appeal From OrieinarDceree No. 344 of 1999)
Mr. Rafique-Ul-Huq, Senior Advocate. (M. 1. Farooqui, Advocate with him), instructed bv Mr. M. G. Bhuivan. Advocate -ou-Record. For the Petitioner
Mr Abdul Wadud Iiluriyan, Senior Advocate, instructed by Mr. Md. Nowah AH. Advoeate-on-Record. For the Respondents
1.Amirul Kabir Chowdhury, J. This appeal by leave has been preferred by defendant Md. Nurul Huq against the judgment and decree dated 25.06.2001 passed by the High Court Division in appeal from Original Decree No. 344 of 1999 allowing the appeal reversing those of the learned Subordinate Judge. First Court, Comilla in Title Suit No. 92 of 1991 dismissing the suit.
2. The plaintiff-respondent Nirmal Chandra Dutta instituted the suit for declaration that the compromise decree dated 18.09.1991 of the learned Subordinate Judge. First Court, Comilla in title Suit No. 82 of 1982 is fraudulent, collusive, illegal, void and not binding upon him. The aforesaid plaintiff filed the said suit stating inter alia, that he inherited property of one Jyoti Bhshan Dutta as his adopted son and appointed the defendant (Md, Nurul Huq) as his attorney on 11.06.1981 to look after and manage his properties and to recover rents from the tenants and that on 26.05.1982 he. however, revoked the power of attorney because the defendant (Md. Nururl Huq) had sold his valuable property and misappropriated the sale proceeds and also inserted into the deed of power of attorney a recital to the effect that he had allegedly taken loan of TK. 4,50,000/= from the defendent and his son-in=law and the notice of the revocation was published in Daily Ittefaq on 05.06.1982 . Because of revocation of the power of attorney the defendant (Md. Nurul Huq ) instituted Title Suit No. 82 of 19S2 for declaring him to be the still lawful and valid attorney of Nirmal Chandra Dutta in view of irrevocable general power of attorney dated 09.06.1981 and for declaring that the deed of revocation dated 26.05.1982 is illegal, ultraviries etc. and also for a decree against the defendant (Nirmal Chandra Dutta) additionally and alternatively for the sum of Tk. 5.03,4000/- with interest and the efendant (Nirmal Chandra Dutta) contested the suit filing written statement and that during pendency of” the suit evidence of Md. Nurul Huq was recorded in part but later the suit ended in sole -decree and coming to know of the same the respondent Nirmal Chandra Dutta filed the suit alleging that is did not execute or file any solenama nor appointed Mr. Abdus Satter as his advocate nor authorized him to enter into any solenama agreement. The suit was contested by the appellant and the Trial court after recording evidence dismissed the suit. The respondent went on appeal before the High court Division and the High Court Division by the impugned judgment and decree reversed the decision and decreed the suit and hence is this appeal.
3. In support of the appeal, Mr, Rafique-UI-Huq, learned Counsel, submits, inter alia, that the learned Judges of the High Court Division committed error of law by observing that the deed of compromise requires verification under Order XXIII Rule 3 read with Order VI rule 15 of the Code of Civil Procedure though such verification is not legally required. He further submits that the defendant executing a solenama, filing it through Mr. Abdus Setter, learned Advocate, the Trial Court after examining the plaintiff was satisfied and as such rightly dismissed the suit. But the High Conn Division without considering the materials on record including evidence of parties, reversed the judgment illegally.
4. He thereafter assails the judgment of” the High court Division submitting, inter alia, that the learned Judges committed error in comparing the signatures of the respondent appearing in the solenama and that the evidence on record did not support the case of the plaintiff and as such the High Court Division ought not to have interfered with the judgment of the Trial Court, According to him the Trial Court considered the materials on record and is justified in dismissing the suit. 5. Mr. Abdul wadud Btmiyan. learned Counsel, opposing the appeal submits that the High court Division correctly found that the compromise petition purported to have been executed by the respondent ought to have cotained verification inasmuch as the solenama itself has described it to be a petition and because such petitions do require verification according to law. In this connection he refers to the provision of Order XXIII Rule 3 read with order VI Rule 15 of the Code of Civil Procedure and also to Rules 17 and 19 of Civil Rules and Orders (CRO) Volume-I and Section-XVJ of the Manual of Civil Suit Instructions, containing the provisions as to compromise or adjustment of suits and submits that it was obligatory for the Trial Court to be satisfied as to the execution of the solenama before accepting it. He further submits that in view of filing application by the defendant-respondent even after 29.7.1991 , the date of filing the alleged solenama in court, praying for chance to contest the suit, setting aside the order of ex-parte disposal, the Trial Court ought to have taken steps in order to satisfy itself as to genuineness of the alleging compromise petition insisting on examining the defendant as well.
6. He further submits that the defendant denying the execution of the solenama and expressing his ignorance of the same in the Trial Court, filed the appeal before the High Court Division against the solenama decree and the defendant re–, indent making emphatic denial of execution of the solenama before the Higli Court Division . the High Court Division under the provision of Section 73 of ihe Evidence Act rightly compared the signatures and came lo the correct finding and as such there is no ground to interfere with the said judgment .
7. We have considered the submissions. It appears that the defendant-respondent seriously challenges the genuineness of the solenama while the appellant emphatically asserts it to be genuine. The decree is based on the aforesaid questioned document i. e. solenama. On giving our consideration to the submissions of the parties we are of the view that the factiim as to this bone of contention has not been correctly thrashed out by the High court Division.
8. It is been argued on behalf of the respondent that the solenama and the vokalatnama purported to have been executed in favour of Mr. Abdus Satter, learned advocate are forged while (he appellant asserted the same to be genuine. In view of the contentious submission of the parties, we are of the view that it was the duty of the courts below to send the impugned documents to Hand Writing Expert for opinion. Such opinion being not taken by either of the Courts below the impugned judgment, according to us. calls for interference.
9. In this view of the matter we feel inclined to allow the appeal setting aside the impugned judgment and decree, the suit being an old one, we however , do not like to send it back to the Trial Court and would, therefore remand it to the High Court Division. In view of our decision to remand the appeal for fresh hearing we do not like to embark upon discussing the merits in the submissions of either parties. In the result, the appeal is allowed without any order as to costs. Impugned judgment and decree dated 26.05.2001 arc set aside . The Fist Appeal No. 344 of IC)CW is remanded to the High Court Division with a direction to hear the appeal afresh after obtaining report from the competent Hand Writing Expert as to execution of the documents i. e solenama petition dated 2°.O7.1u82 exhibit “V and the vokalatnama exhibit ‘^f’ in favour of Mr. Alxlus Saltar. Advocate purported to have been executed by the respondent and todecide the appeal in accordance with law. The plaintiff of the suit shall bear the costs of the examination by the Hand writing Expert. Ed.
Source : I ADC (2004),26.