Abdul Malek Mollah Vs. Md. Abdul Salam Moral and another, 61 DLR (AD) (2009) 124

Case No: Civil Appeal No.191 of 2003

Judge: Shah Abu Nayeem Mominur Rahman ,

Court: Appellate Division ,,

Advocate: Mr. Abdur Razzaque Khan,Mr. Abdus Salam Khan,,

Citation: 61 DLR (AD) (2009) 124

Case Year: 2009

Appellant: Abdul Malek Mollah

Respondent: Md. Abdul Salam Moral and another

Delivery Date: 2009-4-15

 
Supreme Court
Appellate Court
(Civil)
 
Present:
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Shah Abu Nayeem Mominur Rahman J
 
Abdul Malek Mollah
.........................Appellant
Vs.
Md. Abdul Salam Moral and another
……….............Respondents
 
Judgment
April 15, 2009.
 
Constitution of Bangladesh, 1972
Articles 103 & 104
Concept of doing complete justice— In the scheme of our Constitution we can only do complete justice under Article 104 of the Constitution in a matter or cause which is pending in appeal under Article 103 of the Constitution. In the instant case the laches on the part of the plaintiff-petitioner cannot be denied and then we are not considering any matter pending in any appeal.
 
Cases Referred To-
Bashir Ahmed and another Vs. K.S. Agha Yaqub Shall and others, 13 DLR (SC) 338; Bangladesh and others Vs. Dhaka Lodge Welfare Society, 40 DLR (AD) 86; Raziul Hasan Vs. Badiuzzaman Khan and others, 16 BLD (AD) 253.
 
Lawyers Involved:
Abdul Razzak Khan, Senior Advocate, instructed by Syed Mahbubar Rahman, Advocate-on-Record- For the Petitioner. 
Abdus Salam Khan, Senior Advocate instructed by Mvi. Md. Wahidullah, Advocate-on-Record- For Respondent No. 1.                    
Not represented- Respondent Nos.2.     
 
Civil Appeal No.191 of 2003.
(From the judgment and decree dated 19.08.2001 passed by the High Court Division in First Appeal No. 164 of 1998.)
 
JUDGMENT
 
Shah Abu Nayeem Mominur Rahman J.
 
Instant civil appeal arises out of the judgment and decree dated 19.08.2001 passed in First Appeal No.164 of 1998 dismissing the appeal by the High Court Division. The First Appeal arises out of the judgment and decree dated 22.02.1998 passed in Title Suit No. 32 of 1994 decreeing the suit for Specific Performance of Contract, by the Subordinate Judge, 1st Court, Gazipur.
 
2. The facts relevant for disposal of this appeal are that the plaintiff filed Title Suit No.32 of 1994 for Specific Performance of Contract in respect of the suit property comprising 17½ decimals of land with semi pucca tin shed house standing thereon, which belonged to the defendant No.1, the petitioner herein. The defendant No.1 purchased the suit land by registered kabala dated 18.02.1992 and after making a semi pucca house was living there and while thus owning and possessing the said land, being in need on cash money, disclosed his intention to sell the suit property and the plaintiff offered him Tk. 4,50,000/- as price for the suit property and the defendant, finding the said offer to be the highest offer, accepted the same and on receipt of Tk. 3,80,000/- as earnest money, entered into an agreement for sale of the suit property in favour of the plaintiff on 13.09.1993 and that on receipt of the advance money of Tk. 3,80,000/- out of the fixed consideration amount of Tk. 4,55,000/- the defendant No.1 after execution of the agreement for sale delivered the possession of the suit property to the plaintiff and it was agreed upon that on payment of the balance amount the defendant would execute and register the required sale deed but the defendant was arrested and in such situation, the wife of the defendant requested the plaintiff for money and the plaintiff gave her cheque of Tk. 5,000/- on Sonali Bank, Rajendrapur Cantonment Branch, on 26.01.1993 and thereafter, the defendant No.1 coming out of jail on bail requested for some money to the plaintiff on 13.11.1993 and the plaintiff issued a cheque for Tk. 11,000/- on the said Sonali Bank, Rajendrapur Cantonment Branch and thus the defendant No.1 took Tk. 3,96,000/- in all from the plaintiff against the consideration money fixed for the suit property and thereby there remained a balance of Tk.59,000/-and the defendant was approached on several occasions to execute and register the required sale deed in respect of the suit property on acceptance of the balance of the consideration amount but the defendant avoided and hence the suit. The defendant at the time of execution of the agreement for sale handed over the original title deed of the suit, property to the plaintiff. The plaintiff also caused issuance of legal notice prior to filing of the suit.
 
3. The defendant No.1 contested the suit by filing written statement denying the story of any agreement for sale of the suit property and asserting that the plaintiff was persuaded by the defendant No.1 and his men to go to America for which the defendant No.1 would procure the required visa against payment of the negotiated amount of Tk. 2,20,000/- and that on 11.08.1992 the defendant No.1 in presence of Amir Uddin, Abul Hasem and Jamal  Uddin  and  others  handed  over Tk. 60,000/- in cash to the plaintiff through Matin and also kept his 43½% decimals of land as security against payment of further amount of Tk. 60,000/- within stipulated period,  putting his  signatures  on some blank stamp papers, and with condition that the defendant would pay the balance amount of Tk. 1,00,000/- on  furnishing proof of issuance of visa in his name for America and that plaintiff Salam along with others subsequently handed over a photo copy of a visa claiming to be the visa for America issued in favour of the defendant and demanded payment of the balance of Tk. 1,00,000/- to which the defendant wanted to verify the genuineness of the visa from the American Embassy and on enquiry it was found that the visa was a forged document and hence the defendant demanded return of his money and the plaintiff took time and avoided the return of the money taken from the defendant earlier and at one point of time the plaintiff took the defendant to his brother's house at Shantibag and confined him there, and sent a message, written by him under duress, addressing his wife for payment of Tk. 30,000/- disclosing that he is in danger and  the defendant's wife on receipt of the letter handed over Tk. 12,000/- in cash to letter bearer and also handed over a table fan, tape recorder for raising fund by sale of those items and the wife was also taken to the place, where the defendant was confined, and that under duress and coercion the plaintiff and his men took his signatures on 11 stamp-papers, of which three were of denomination of Tk.50/-each and the rest are of Tk. 10/- each and the plaintiff with the said stamp papers created an agreement for sale showing the plaintiff as purchaser and  the defendant as vendor and mentioning Tk. 3,80,000/- as paid in advance, although no payment was made and that the defendant lodged an F.I.R., registered as Joydebpur P.S. Case No.17 (11) 93 under Sections 406 and 420 of the Penal Code and during investigation three stamp papers were recovered from the house of Humayun and that the defendant neither received Tk. 3,80,000/- as earnest money as claimed nor did enter into any contract for sale of the suit property to the plaintiff. The trial Court framed 5 issues namely,
 
1. Is the suit maintainable in its present form?
2. Is the suit barred by limitation?
3. Is the suit properly valued and the plaint stamped properly?
4. Whether the plaintiff is entitled to get the required registered sale deed on the basis of the unregistered agreement for sale dated 13.09.1993?
5. Is the plaintiff entitled to get any other relief? 
 
4. The plaintiff adduced 5 witnesses and produced document marked Exhibit-1, 1(Ka), 2, 2 (Ka), 3, 4, 5 and 5 (Ka). The defendant also adduced 5 witnesses and produced documents marked Exhibits- 'Ka' and 'Kha'.
 
5. The trial Court on consideration of the materials and evidences on record and the submissions of the learned Advocates of the contesting parties decreed the suit against the defendant No.1 and ex parte against the rest directing the defendant No.1 to execute and register the required sale deed on receipt of the balance amount of Tk. 59,000/-, deposited in Court, in default the plaintiff to get the sale deed executed and registered through Court. The trial Court observed that the agreement for sale was made on 2 stamp papers and the defendant No.1 admitted his signatures appearing in the agreement for sale and that the plaintiff on 12.09.1993 purchased the stamp papers used for making the agreement for sale dated 13.09.1993 and that the agreement for sale was executed on payment of Tk.3,80,000/- as advance against the consideration money fixed at 4,55,000/- and the subsequent payment of Tk. 5,000/- and 11,000/- and delivery of possession of the suit property by the defendant to the plaintiff were proved by him as witness in the Court, which were also corroborated by the witnesses. The witnesses proved the agreement for sale marked Exhibit-1 and signatures thereon of the executant and the witnesses being P.Ws. The plaintiff also produced the cheque book with the counter foils of the cheques issued for Tk. 5,000/- and Tk. 11,000/- respectively, marked Exhibits-2 and 2 (Ka). The legal notice was marked Exhibt-3. The plaintiff thus proved his case of agreement for sale, payment of Tk. 5,000/- and 11,000/-to the defendant and delivery of possession of the suit property.
 
6. The defendant and his witnesses corroborated the story of payment of Tk. 60,000/- and keeping of land as security against further Tk. 60, 000/- the visa of U.S.A. to be procured for the defendant but could not prove the story of procurement of signatures of the defendant on the blank stamp papers and the story of creation of the agreement for sale, the story of his p alleged illegal confinement in the house of the brother of the plaintiff at Shantibag. The defendant did not deny his signatures appearing in the agreement for sale (Exhibit-1). The trial Court having regard to the admitted signatures on the alleged agreement for sale, counter foils showing payment of Tk. 5,000/- and 11,000/- through cheques and believing the story of delivery of possession of the suit property on receipt of Tk. 3,80,000/- as earnest money on the date of alleged execution of the agreement for sale, decreed the suit.
 
7. The defendant, being aggrieved, filed the First Appeal No.164 of 1998 in the High Court Division. The High Court Division dismissed the appeal by the impugned judgment on consideration of the materials and evidence on record and the submission of the learned Advocate of the contesting party. The High Court Division on analysis of the depositions of the witnesses adduced by the plaintiff and the defendant and the documentary evidence, marked Exhibits, observed that the P.Ws. have corroborated each other as to the execution of the bainapatra with the plaintiff for sale of the suit property and no contradiction could be made out through cross-examination. Their lordships also found the payment of Tk. 16,000/- made through cheques to be proved and believed the execution of bainapatra in view of the production of the original title deed by the plaintiff before the Court, marked Exhibit-1 (Ka). The High Court Division observed that the defendant could not produce any document in support of his story of payment of Tk. 60,000/- and keeping security of his property against Tk. 60,000/- as alleged. The allegation of procurement of signatures under duress, and story of the forged American Visa were not proved. The High Court Division also observed that the defendant appellant did not produce any document in the Court below in respect of the alleged criminal case filed against the plaintiff. Being aggrieved, by the judgment and decree passed by the High Court Division dismissing the appeal, the defendant has now come up with this leave petition on the ground, amongst others, that the High Court Division failed to consider the contradictions in the depositions of the plaintiff's witnesses and that the High Court Division did not consider the petitioner's case as detailed in the written statement, the F.I.R. as well as the three stamp papers recovered by the police in connection with Joydebpur Police Station Case No.17(11) 93 and the fact of lodging of G.D. No. 1033 dated 25.10.1993 with Joydebpur Police Station in respect of loss of his original title deed No. 1762 dated 18.02.1992 relating to the suit property and the High Court Division failed to consider the allegation of duress and coercion in obtaining signatures of the defendant in the stamp papers.
 
8. The learned advocate submitted that if, the vital materials and documents now available with the petitioner, could be filed and made Exhibits, the defendant's case would have been established and proved and that the defendant petitioner have filed an application for acceptance of the said documents namely (1) copy of F.I.R. recorded at Joydebpur P.S. Case No.17(11)93 (2) the charge sheet in respect of the said case, (3) the order sheet of Magistrate, Gazipur, (4) copy of seizure list and (5) the statements of witnesses recorded under section 161 of the Code of Criminal Procedure, copy of which have been annexed with the application made therefore for marking as exhibits in support of his contentions in order to do complete justice. It has been submitted that this Court has ample power to accept the documents mentioned above and to send the case back for fresh trial on remand for ends of justice inasmuch as the defendant is a poor man and that he handed over the paper to the learned Advocate who appeared for him in the Court below but the learned Advocate failed to appreciate the necessity of filing those documents before the trial Court and thereby the defendant petitioner has been prejudiced and put to suffer irreparable loss and injury being deprived of his property.
 
9. The learned Advocate referring to the case of Bashir Ahmed and another Vs. K.S. Agha Yaqub Shah and others reported in 13 DLR (SC) 338 submitted that for ends of justice, defendant may be allowed a chance to contest the suit inasmuch as admittedly there was insufficiency of evidence in the case at least on the part of the defendant but for no fault of the defendant petitioner. The learned Advocate referring to the decision in the case of Bangladesh and others Vs. Dhaka Lodge Welfare Society reported in 40 DLR (AD) 86 submitted that the constitutional obligation of the Appellate Division is to do complete justice in the cause or matter and while doing so it is imperative to give due consideration to the documents produced before this Court to clarify the factual position, and on final analysis by the trial Court, proper decision can be given and thereby enable the defendant to defend his case with all  supporting documents and for that the matter the case may be remanded back to the trial Court for fresh decision on the basis of documents produced earlier together with the additional documents now available. The learned Advocate also relied on decision in the case of Raziul Hasan Vs. Badiuzzaman Khan and others in C.A. No.88 of 1994 of the Appellate Division reported in 16 BLD (AD)253, wherein it has been observed by their Lordship of the Appellate Division that: 
 
"We now find that no remedy is available to the appellant, though a gross injustice has been done to him for no fault or fetches of his own. A valuable right accrued to the appellant in law and fact should not be lost. In that view of the matter we thought it to be a most appropriate case to exercise our jurisdiction under Article 104 of the Constitution........But in the scheme of our Constitution we can only do complete justice under Article 104 of the Constitution in a matter or cause which is pending in appeal under Article 103 of the Constitution." 
 
10. But the said decision is not applicable in the instant case inasmuch as in the instant case the laches on the part of the plaintiff petitioner can not be denied and further we are not considering any matter pending in any appeal.
 
11. We have considered the submission of the learned Advocate. We have perused the judgments of the Courts below and also perused the depositions of the witnesses adduced by the contesting parties. We have allowed time to the learned Advocate appearing for the petitioner to convince us by producing documents as to the story of procurement of signatures of the defendant on the stamp papers through duress and coercion and as to keeping the defendant in illegal confinement as alleged. It appears that the agreement was executed on 13.09.1999 on the stamp papers procured on 12.09.1993 and that in the F.I.R. the name of the plaintiff is absent. Further the learned Advocate could not show us any reason for not lodging any complaint with the police in respect of alleged illegal confinement of the defendant. The learned Advocate also could not explain as to how the plaintiff got the original title deed of the defendant in respect of the suit property, marked Exhibit-1(Ka). The agreement for sale has been proved by the plaintiff and his witnesses. The witnesses adduced by the defendant are mostly hear-say witnesses having no personal knowledge about the alleged illegal confinement of the defendant and the creation of the agreement for sale in reference. There is no material in the records to show the date of alleged confinement of the defendant by the plaintiff and to show the involvement of the plaintiff in the FIR lodged by the defendant and the charge-sheet submitted by the police.
 
12. In the facts, we do not find any reason to send back the case to the trial Court on remand for fresh decision. Thus we do not find any merit in the appeal.
Accordingly, the appeal is dismissed without any order as to costs.
 
Ed.