Appellate Division Cases
(Civil)
PARTIES
Sarder Md. Hashim Zaman & others……………….. Appellants
-Vs-
Thana Nirbahi Officer, Mithapukur, Rangpur and others …………Respondents
JUSTICES
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Md. Hassan Ameen J
Judgment Dated: 3rd January 2008
The Evidence Act, Section 73
The defendants filed Other Suit No.ll of 1993 challenging the order of dissolution dated 13.1.1993 of the said committee praying for a declaration that the said order of dissolution dated 13.1.1993 was illegal…………………. (4)
High Court Division in purported exercise of power of comparing teh signature or writing under section 73 of the Evidence Act wrongly disturbed the concurrent finding of fact of the trial as well as the appellate court below that the defendant Nos. 13-15 voluntarily resigned on 25.4.1993, 23.4.1993 and 26.4.1993 but the said dissolved Managing Committee subsequently reappointed them on 12.11.1993 when it (dissolved Managing Committee) had no power to do that on account of its dissolution on 13.1.1993 and as such they (defendant Nos. 13-15) ceased to be validly appointed teachers of the said school……………….. (8)
It appears that the trial court and the appellate Court below did neither resolve the point at issue whether the defendant Nos. 13-15 at all resigned on the dates entioned above as alleged by the plaintiffs nor discussed and considered the material evidence on the point. The said courts only and abruptly came to the finding that the said defendants were not validly reappointed on 12.11.1993 as teachers on the ground that the dissolved committee having been validly dissolved on 13.1.1993 had no authority or competence to reappoint them on 12.11.1993. The learned Single Judge of the High Court Division noticed that although the defendants denied to have resigned from their post as teachers of the said school the plaintiffs failed to prove the signature of the said defendants in the resignation letters by obtaining opinion of any handwriting expert. In this situation, the learned Single Judge by comparing the disputed handwriting and signature in the resignation letters vide Exht.j series in exercise of power under section 73 of the Evidence Act came to the finding that the resignation letters of the defendant Nos. 13, 14 and 15 were not voluntary and genuine and the same were obtained by coercion and duress and the said defendants were still in service as teachers of the said school. We are not inclined to interfere with this finding of the High Court Division for the simple reason that no opinion of any handwriting expert was obtained in this case nor the trial or the appellate court below gave any finding on this point……………………. (9)
To give a decision on a disputed handwriting or signature of a party to as document opinion of the handwriting expert is preferable to the Court’s exercising the power under section 73 of the Evidence Act in view of presently available advanced science and technology in determining the dispute. There is of course a long line of judicial authorities expressing divergent view on the point. One such view is that the Court should not take such hazardous steps to compare any signature or writing with other admitted or proved ones by suing his own eyes particularly whenever the evidence is scanty or unreliable or there is no opinion of any handwriting expert. But these are mere words of caution. But in case of dire necessity Court can resort to section 73 of the Evidence Act and give a decision in resolution of a dispute. But the Court may compare the disputed signature or handwriting with the proved or admittedly genuine signature of the person who purported to have signed or written …………….(10)
Fawzia Karim, Advocate (appeared with the leave of the Court), instructed by Md. Nawab AH, Advocate-on-Record. …………………….For the Appellants
A.S.M. Khalequzzaman, Advocate-on-Record ……………………For Respondent No. I
Rabia Bhiuyan, Senior Advocate, instructed by Zahirul Islam, Advocate-on-Record. …………………………………………For Respondent No. 3
For Respondent Nos. 2 & 4-19 …………………………Not represented
Civil Appeal No. 158 of 2002
(From the judgment and order dated 24.11.1998 passed by the High Court
Division in Civil Revision No. 4520 of 1997.)
JUDGMENT
Md. Joynul Abedin J: This appeal by leave is directed against the judgment and order dated 24.11.1998 passed by a Single Bench of the High Court Division in Civil Revision No. 4520 of 1997 making the Rule absolute.
2. The fact, in brief, is that the appellants as plaintiffs filed Other suit No. 73 of 1994 for declaration that the appointment of defendant Nos. 10-15 as teachers of the Thakurbari Junior Secondary Girls School is void, illegal, collusive and without jurisdiction and the appointment of the plaintiffs 1-8 is valid and legal.
3. The plaintiffs case, inter alia, is that Thakurbari Junior Secondary Girls School was established in the year 1988 and it was recognized by the Government on 13.10.1992. The defendants illegally constituted the Managing Committee headed by the defendant No.l, Thana Nirbahi Officer, and it was approved by the Government. The local people being dissatisfied with the function of the said committee made an application to the defendant No. 16 for dissolution of the said Committee. The defendant No.l having received the said application for dissolution directed the Thana Education Officer to investigate and submit the report. The defendant No. 16 on receipt of the report dated 29.11.1992 of the Thana Education Officer dissolved the said Committee by his order dated 13.1.1993 and Directed the plaintiff No.l to form and Ad-hoc Managing Committee to run the said school.
4. In this background of the case, the defendants filed Other Suit No. 11 of 1993 challenging the order of dissolution dated 13.1.1993 of the said committee praying for a declaration that the said order of dissolution dated 13.1.1993 was illegal. During the pendency of the said Other suit No. 11 of 1993 an ad-interim order of injunction was passed on 23.2.1993 directing the parties to maintain status-quo. During the pendency of the said Other Suit No. 11 of 1993 the trial court by order dated 10.2.1994 dismissed the suit as infructuous on an application filed by the defendants of the said other suit on the ground that the suit lost its efficacy and usefulness as the tenure of the said Managing Committee expired on 12.1.1993.
5. The trial court after hearing both the parties decreed the suit (Other Suit No. 73 of 1994) on 3.6.1996 against which the defendants preferred Other Appeal No. 60 of 1996 and the appellate court belcw dismissed the appeal affirming the judgment and decree passed by the trial court. The defendants then filed Civil Revision No. 4520 of 1997 and the High Court Division thereupon by the impugned judgment made the rule absolute and set aside the judgment and decree of the courts below dismissing the suit. Hence the plaintiffs filed the aforesaid civil petition for leave to appeal.
6. Leave was granted to consider whether the learned Single Judge of the High Court Division acted illegally in exercise of its jurisdiction in coming to the decision that the defendant Nos. 13-15 had not voluntarily resigned as teachers but their resignations were obtained by force and coercion by merely comparing the handwritings and signature of the said defendants in their resignation letters in exercise of power under section 73 of the Evidence Act without properly adverting to the finding of the courts below on the point and setting the same aside without any reasoning. Leave was also granted to consider whether the learned Single Judge of the High Court Division erred in law in failing to appreciate and consider that the dissolved managing committee had no authority to reappoint the defendant Nos.13-15 on 12.10.1993 as it seized to exist on that date.
7. We have heard Mrs. Fawzia Karim, the learned Advocate for the appellants and Mrs. Rabia Bhuiyan, the learned Counsel for respondent No. 3 and perused the impugned judgment of the High Court Division and other connected papers.
8. Mrs. Fawzia Karim, the learned Advocate for the appellants submits that the learned Single Judge of the High Court Division in purported exercise of power of comparing teh signature or writing under section 73 of the Evidence Act wrongly disturbed the concurrent finding of fact of the trial as well as the appellate court below that the defendant Nos. 13-15 voluntarily resigned on 25.4.1993, 23.4.1993 and 26.4.1993 but the said dissolved Managing Committee subsequently reappointed them on 12.11.1993 when it (dissolved Managing Committee) had no power to do that on account of its dissolution on 13.1.1993 and as such they (defendant Nos. 13-15) ceased to be validly appointed teachers of the said school. The learned Advocate for the appellants futher submits that the learned Single Judge erred in law in holding that in view of the order of status-quo dated 13.2.1993 passed in Other Suit No. 11 of 1993 the appointment of the plaintiff Nos. 1-5. 7 and 8 on 11.6.1993 as teachers and appointment of plaintiff No. 6 as a clerk of the said school on the same date on 11.6.1993 was illegal inasmuch as the said order of. status was ineffectual and not binding on the Ad-hoc Managing Committee as it (Ad-hoc Managing Committee) was not mad a party to the said Other Suit No. 11 of 1993.
9. We have examined and considered the materials on record including the judgments of the courts below including the one of the High Court Division. It appears that the trial court and the appellate Court below did neither resolve the point at issue whether the defendant Nos. 13-15 at all resigned on the dates mentioned above as alleged by the plaintiffs nor discussed and considered the material evidence on the point. The said courts only and abruptly came to the finding that the said defendants were not validly reappointed on 12.11.1993 as teachers on the ground that the dissolved committee having been validly dissolved on 13.1.1993 had no authority or competence to reappoint them on 12.11.1993. The learned Single Judge of the High Court Division noticed that although the defendants denied to have resigned from their post as teachers of the said school the plaintiffs failed to prove the signature of the said defendants in the resignation letters by obtaining opinion of any hand-writing expert. In this situation, the learned Single Judge by comparing the disputed handwriting and signature in the resignation letters vide Exht.3 series in exercise of power under section 73 of the Evidence Act came to the finding that the resignation letters of the defendant Nos. 13,14 and 15 were not voluntary and genuine and the same were obtained by coercion and duress and the said defendants were still in service as teachers of the said school. We are not inclined to interfere with this finding of the High Court Division for the simple reason that no opinion of any handwriting expert was obtained in this case nor the trial or the appellate court below gave any finding on this point.
10. To give a decision on a disputed handwriting or signature of a party to as document opinion of the handwriting expert is preferable to the Court’s exercising the power under section 73 of the Evidence Act in view of presently available advanced science and technology in determining the dispute. There is of course a long line of judicial authorities expressing divergent view on the point. One such view is that the Court should not take such hazardous steps to compare any signature or writing with other admitted or proved ones by suing his own eyes particularly whenever the evidence is scanty or unreliable or there is no opinion of any handwriting expert. But these are mere words of caution. But in case of dire necessity Court can resort to section 73 of the Evidence Act and give a decision in resolution of a dispute. But the Court may compare the disputed signature or handwriting with the proved or admittedly genuine signature of the person who purported to have signed or written.
11. The next question is whether the learned Single Judge of the High Court Division acted contrary to law and evidence on record in holding that the appointment of the plaintiff Nos. 1-5, 7 and 8 as teachers and plaintiff No. 6 as a clerk of the said school is illegal. Although no leave was granted on this point this Court allowed the learned Advocate for the appellants to argue the same to ensure complete justice. It is argued by the learned Advocate for the appellants that the status-quo order dated 23.2.1993 passed in Other Suit No. 11 of 1993 did not have any binding effect on the Ad-hoc Managing Committee as it was not made a party to the said suit (Other Suit No.l 1 of 1993). We have noted that the said Ad-hoc Managing Committee was comprised of 6(six) members and of them Shah Md. Mizanur Rahman was the Chairman of the said Committee. Only 2(two) members of the said Ad-hoc Managing Committee were impleaded as defendants but the chairman of the said Ad-hoc Managing Committee was not impleaded as a defendant to the said suit representing the said Ad-hoc Managing Committee. In this view of the matter, we find force in the argument advanced by the learned Advocate for the appellants. We are therefore inclined to hold that the appointment dated 11.6.1993 of the plaintiff Nos. 1-8 by the Ad-hoc Managing Committee is valid and defendant Nos. 13-15 are validly appointed teachers of the said school.
12. Accordingly the appeal is allowed-inpart without any order as to costs.
Source : V ADC (2008), 193