Md. Shaha Alam Vs. Musammat Farida Begum

Md. Shaha Alam (Appellant)

Vs.

Musammat Farida Begum  (Respondent)

Supreme Court

Appellate Division

(Civil)

Present:

ATM Afzal CJ

Mustafa Kamal J

Latifur Rahman J

Mohammad Abdur Rouf J

Bimalendu Bikash Roy Choudhury J

Judgment

April 8, 1997.

Lawyers Involved:

Syed Mahmood Hossain, Advocate appeared with the leave of the Court) instruct­ed by Sharifuddin Chaklader, Advocate-on-Record-For the Appellant.

In person– the Respondent

Civil Appeal No. 50 of 1996.

(From the Judgment and Order dated June 1,1995 passed by the High Court Division in Civil Revision No. 1471 of 1994).

Judgment

Mohammad Abdur Rouf J.- This appeal following leave, by the defendant is from the Judgment and Order dated 1-6-95 passed by a Division Bench of the High Court Division making the Rule, issued in Civil Revision No. 1471 of 1994, absolute and setting aside the concurrent Judgment and decree passed by the learned District Judge, Comilla dismissing on 29.4.92, Family Appeal No. 1 of 1991, pre­ferred by the plaintiff, and affirming thereby the judgment and decree dated 31.5.90 passed by a learned Assistant Judge of Family Court, Laksham dismissing Family Court Case No. 33 of 1989.

2. Respondent, Musammat Farida Begum instituted the aforesaid suit on 12.7.89 stating, inter alia, that she and the defendant used to love each other and accordingly the defendant promised to marry her. But the defendant’s par­ent being not agreeable to their marriage the defendant himself had taken the initiative and married her on 2nd Agrahayan, 1395 B.S. at a dower money of Tk. 1,00,001/- of which 50% was prompt dower. The defendant also prom­ised to pay her Tk. 700/-, including TK. 200/- as pocket money, per month as maintenance. The marriage was solemnized at the house of the plaintiff’s father in presence of her witnesses, other relations, and the friends of the defendant. The defendant further promised to register a kabinnama later on. During the first 2 months of marriage they used to live at the house of the plaintiff’s father as husband and wife and there­by she conceived. Subsequently the defendant took Tk. 10,000/- from the plaintiff’s father as a refundable loan to run his business and there­after the defendant once again pressed the plaintiff to collect a further sum of Tk. 10,000/- from her father to help him to run his business and the plaintiff expressed her inability in that regard, but she herself gave him her gold orna­ments worth Tk. 15,000/- The defendant sold out those ornaments and used the sale proceeds in his business. Thereafter the plaintiff and her parents pressed upon the defendant for registra­tion of a kabinnama and the defendant on 3rd Magh 1395 B.S sent away to his own house leaving the plaintiff at her father’s house. Suddenly on 7th June 1989, the defendant came to the house of the plaintiff’s father and pro­posed to get her health examined by a doctor at Payalgacha Health and Family Planning centre. The plaintiff on 8.6.89 along with the defendant went to the said Family Planning Centre, where the defendant pressed her for causing a miscar­riage, but she did not agree. She agreed to cause such miscarriage only after registration of a kabinnama. The defendant further proposed to execute a kabinnama upon a white sheet of paper but the plaintiff did not agree to that. The defendant went away from the said Family planning Centre leaving the plaintiff alone there and since thereafter the defendant did not main­tain her.

3. The plaintiff claimed for a decree for Tk. 50,000/- as prompt dower, Tk. 3,850/- as main­tenance for 51/2 months; Tk. 10,000/- taken as loan by the defendant from the plaintiff’s father and Tk. 15,000/- the price of her ornaments, i.e., in total Tk. 78,850/- against the plaintiff, as mentioned in schedule ‘ka’ to the plaint. The defendant contested the suit by filing a written statement denying the alleged marriage itself. The defense case is that the plaintiff is a divorcee and mother of one child and that she is of questionable character. She, her parent and her other relations with a view to black mailing the defendant’s parent had been disclosing in the locality an imaginary marriage of the plain­tiff with the defendant. The defendant’s father on 12.6.89 instituted a defamation case in the Court of Upazila Magistrate, under sections 120B and 500 of the penal Code against the plaintiff, her parent and other relations being C.R. Case No. 71 of 1989. The plaintiff as a counterblast of the said defamation case insti­tuted the aforesaid civil suit by fabricating a false story of marriage.

4. The plaintiff examined 5 witnesses including herself as P.W.I and the defendant examined 6 witnesses including himself as D.W. 1. After the close of recording evidence a kabinnama, marked V was produced on behalf of the plaintiff.

5.  The trial Court on consideration of the evidence held that the plaintiff could not prove the talk, solemnisation and consent of the defendant to the marriage the story of going to a family planning centre for causing abortion and held that the plaintiff could not prove the alleged marriage with the defendant. Accordingly the trial court dismissed the suit. The lower appellate court upon fresh consider­ation of the evidence concurred with the find­ings and affirmed the decree of the trial court, dismissing the appeal. In the revision preferred by the plaintiff, a Division Bench of the High Court Division by the impugned judgment and order decreed the suit after setting aside the appellate judgment and decree.

6. Leave has been granted to consider the points raised by the defendant appellant as to whether the High Court Division exceeded its revisional jurisdiction in setting aside the con­current findings of fact, namely, that the plain­tiff could not prove the alleged marriage and subsequent events and as to whether the grounds assigned by the High Court Division for interfering with the concurrent decision of the courts below are tenable either in law or on fact.

7. Syed Mohammad Hossain, learned Advocate for the appellant with leave of the court, submitted that the trial court upon a detailed consideration of the evidence on record arrived at the findings that the plaintiff could not prove:-(i) the very talk of marriage; (ii) solemnisation of the alleged marriage; (iii) con­sent to the alleged marriage by the defendant; (iv) the story of going to the Payalgacha family planning centre on 8.6. 89; and (v) the alleged witnesses to the marriage named in the alleged kabinnama (which was not legally proved) did not depose in the suit supporting the marriage. The lower appellate court upon fresh consideration of the evidence on record concurred with those very findings of the trial court. The learned Judges of the High Court Division, he submits, without reversing those concurrent findings of fact have illegally decreed the suit upon mere surmise and conjecture. No misread­ing or non consideration of the evidence on record has been found. The High Court Division, he submits, exceeded its revisional jurisdiction under such circumstances.

8. The plaintiff respondent appeared in per­son and submitted a written submission. She also made a lengthy submission on facts not all of it was relevant, in support of her case assert­ing, inter of his own accord had married her and subsequently executed a kabinnama, but due to unhealthy pressure put upon him by his rela­tions he falsely denied the marriage.  She strongly submits that the High Court Division in the interest of justice has rightly decreed the suit.

9. It appears from the impugned judgment that although the learned Judges have stated that the courts below based their judgments upon misreading and non consideration of the evidence, yet they failed to lay their hands on any part of the evidence of P.Ws and D.Ws or on any documentary evidence to bring home this error of law on the part of the courts below. Without reversing the findings of the courts below on he grounds mentioned in section 115 CPC the High Court Division has no jurisdic­tion to disturb the final findings of facts. It can­not superimpose itself as a third court for fresh appreciation of evidence. That is not its func­tion in the revisional jurisdiction.

10. The erred Judges of the High Court Division appears to have clearly fallen into an error of law in holding that the alleged kabinna­ma (not even formally proved and marked exhibit) supports the plaintiff’s case in view of the fact that the witnesses named in the alleged kabinnama as witness to the marriage did not even depose in court, as observed by the trial court. It may also be mentioned that even the

plaintiff’s father did not show any interest in supporting the plaintiff’s case by deposing in court although it is the definite case of the plaintiff that her father spent TK. 20,000/- in the marriage ceremony and also presented a Sicko Watch worth TK. 2.500/- to the defendant and that the defendant took a loan of TK. 10,000/- from the plaintiff’s father shortly after the marriage.

11. We have ourselves gone through the evidence on record. We have failed to find out any support therefore to maintain the finding of the High Court Division.

For the reasons aforesaid the impugned judgment of the High Court Division being in excess of its revisional powers and even not being a proper judgment of reversal is not sus­tainable in law.

The appeal is allowed without any orders as to costs, the judgment and decree of the lower appellate court are hereby restored.

Ed.

Source: II ADC (2005) 343

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