Harunur Rashid and others Vs. Mosammat Yarun Nissa and others, 2016(1) LNJ (AD) 59

Case No: CIVIL PETITION FOR LEAVE TO APPEAL NO. 2869 OF 2012

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Mr. Md. Shamsul Huq,,

Citation: 2016(1) LNJ (AD) 59

Case Year: 2016

Appellant: Harunur Rashid and others

Respondent: Mosammat Yarun Nissa and others

Delivery Date: 2015-04-26

APPELLATE DIVISION
(CIVIL)
 
Md. Abdul Wahhab Miah, J
Muhammad Imman Ali, J
A. H. M. shamsuddin Choudhury, J.

Judgment on
26.04.2015
 
Harunur Rashid Being dead his Heirs: Md. Hanif Mia and others
... Petitioners
Versus
Mosammat Yarun Nissa and others
...Respondents
 
Code of Civil Procedure (V of 1908)
Order XLI, Rule 27(1)(b)

In the absence of any order of the appellate Court requiring production of any evidence, any party may, by permission of the appellate Court, produce the deed in question “for any other substantial cause”, as provided in Rule 27 (1) (b). . . . (15)
 
For the Petitioners: Mr. Shamsul Haque, Advocate instructed by Mr. Zainul Abedin, Advocate-on-Record.
For Respondent Nos. 1, 3-7 and 9-10 : Mr. Qamrul Hoque Siddique, Advocate, instructed by Mrs. Madhu Malati Chowdhury Barua, Advocate-on-Record.
For Respondent Nos. 2, 8 & 11-25 : Not represented.
 
Civil Petition for Leave to Appeal No. 2869 of 2012
 
JUDGMENT
Muhammad Imman Ali, J:
 
         This Civil Petition for Leave to Appeal is directed against the judgement and order dated 31.07.2012 passed by a Single Bench of the High Court Division in Civil Revision No. 1320 of 2010 making the Rule absolute.
 
         Facts of the case, in brief, are that one Pran Bollav Sarker as plaintiff filed Title suit No. 143 of 1969 in the First Court of Subordinate Judge, Dhaka, praying for declaration of title and further declaration that the ex parte decree dated 13.09.1967 passed by the same Court in Title Suit No. 166 of 1966 is void, illegal, fraudulent, inoperative and has no legal effect.
 
         The case of the plaintiff was that he owned and possessed 16 annas share comprising an area of 1.73 acres of land of Mouja Dania and 0.30 acre of land of Mouja Matuail by way of inheritance and by purchase. One Md. Tayab Ali, the original defendant, on the basis of an agreement for sale obtaining an arbitration award instituted Title Suit No. 166 of 1966 in the First Court of Subordinate Judge, Dhaka and obtained an ex parte decree. Subsequently, he filed Title Execution Case No. 57 of 1967 procuring a forged Vokalatmana in the name of Pran Bollav Sarker and collusively suppressing all process of this suit   obtained an order of attachment of the suit land on 19.04.1969. Hence, the plaintiff filed the instant suit.
 
         Defendant No. 1 filed a written statement denying the statements in the plaint, contending, inter alia, that the plaintiff entered into an agreement with Md. Tayab Ali and a dispute arose whereupon an arbitration was held which ended in an award. The award was placed before the Court in Title Suit No. 166 of 1966. Pran Ballav appeared by filing a Vokalatnama. The case was thereafter transferred to the Court of Subordinate Judge, Dhaka. During pendency of the suit, by a registered kabala No. 4183 dated 01.03.1971, one Md. Imam Uddin, the predecessor of respondent Nos. 1-8 purchased the entire suit land and got himself impleaded as plaintiff No. 2 in the suit.
 
         The suit proceeded and the trial court fixed 20.02.2001 for arguments and, thereafter, decreed the suit in part declaring the ex parte decree dated 13.09.1967 passed in Title Suit No. 166 of 1966 as not binding upon the plaintiff and refused the prayer for declaration of the right, title and interest of plaintiff No. 2 in the suit land on the ground of his failure to produce the deed of purchase dated 01.03.1971.
 
         Being aggrieved by the said judgement and decree Md. Imam Uddin filed Title Appeal No. 202 of 2001, renumbered as Title Appeal No. 1 of 2005. Sharafat Ali the defendant No. 9 and Harun-Or-Rashid predecessor of the petitioners herein filed Title Appeal No. 160 of 2001, renumbered as Title Appeal No.1 of 2004 before the District Judge, Dhaka. The learned District Judge transferred both the appeals to the Court of Jananirapatta Bighnakari Oparadh Daman Tribunal for disposal.
 
         On 15.05.2007 the said Imam Uddin filed an application in Title Appeal No. 1 of 2005 for producing the aforesaid sale deed dated 01.03.1971 as additional evidence whereupon the defendant raised objection in writing and on hearing both the parties the appellate Court rejected the application for production of additional evidence by order dated 18.01.2010.
 
         Being aggrieved by the rejection order passed by the appellate Court on 18.01.2010 the plaintiff filed Civil Revision No.1320 of 2010 before the High Court Division and obtained Rule, which was made absolute by the impugned judgement and order. Hence, the defendant as petitioner has filed the instant civil petition for leave to appeal before this Division.
 
         Mr. Shamsul Haque, learned Advocate appearing on behalf of the petitioner submitted that by the impugned judgement the High Court Division has erroneously allowed the opportunity to produce additional evidence by way of a deed of the year 1971, which was not produced within the last 34 years. He further submits that the plaintiff could have produced the deed before the appellate Court or the High Court Division, but did not do so and hence, the High Court Division erroneously allowed extra premium to the plaintiff.
 
         Mr. Qamrul Hoque Siddique, learned Advocate appearing for respondent Nos. 1,3-7 & 9-10 made submissions in support of the impugned judgement and order of the High Court Division. 
We have considered the submissions of the learned Advocates for the parties concerned, perused the impugned judgement as well as other evidence and materials on record.
 
         We find from the judgement of the High Court Division that it was observed that Md. Imam Uddin was added as co-plaintiff by order of the Court on the basis of his being in possession of a deed dated 01.03.1971. This is the very document which was sought to be adduced as additional evidence and the contesting defendant has fought against that order up to this Division and also the addition of the co-plaintiff was opposed on the ground of assignment during pendency of the suit. It was held by the High Court Division that “To arrive at a correct decision and for proper adjudication into the matter in dispute it was necessary to adduce additional evidence so that the learned Court can arrive at a correct decision as to the fate of the suit as well as appeal.” 
 
         Having perused the evidence and materials on record, we note that the basis of claim of the added plaintiff is the document of the year 1971. Without such evidence the plaintiff will not be able to establish the genealogy and his claim to title in the property.   
 
         With regard to production of additional evidence in the appellate Court, Order XLI Rule 27 of the Code of Civil Procedure provides as follows:
 
“27 (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a)the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgement, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.” 
 
         Effectively this is an exclusionary provision restricting the production of additional evidence with the exceptions as mentioned in clauses (a) and (b) of rule 27 (1). In the facts of the instant case, in the absence of any order of the appellate Court requiring production of any evidence, any party may, by permission of the appellate Court, produce the deed in question “for any other substantial cause”, as provided in Rule 27 (1) (b).
 
         We are of the view that the reasons stated by the High Court Division for allowing the production of the purchase deed dated 01.03.1971 of the added plaintiff is justified. 
 
         In view of the above discussion, we do not find any reason to interfere with the impugned judgment and order. 
 
         Accordingly, the civil petition for leave to appeal is dismissed.
 
         Ed.