Md. Mojibul Huq alias Shaikh Md. Mojibul Huq Vs. Md. Yakub Ali, 9 MLR (AD) 2004 181

Case No: Civil Appeal No. 52 of 2001

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Md. Aftab Hossain,Mr. Mahmudul Islam,Mr. Ozair Farooq,,

Citation: 9 MLR (AD) 2004 181

Case Year: 2004

Appellant: Md. Mojibul Huq

Respondent: Md. Yakub Ali

Subject: Procedural Law,

Delivery Date: 2003-11-9

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin J
Syed J. R. Mudassir Husain J 
 
Md. Mojibul Huq alias Shaikh Md. Mojibul Huq
………..…..Appellant
Vs.
Md. Yakub Ali being dead his heirs: Mrs. Sonaban Bibi and others
…………... Respondents
 
Judgment
November 9, 2003.
 
Co-operative Societies Ordinance, 1984
Section 135 (4)
The power of the District Judge or the Additional District Judge as the case may be under section 135 (4) of the Cooperative Societies Ordinance, 1984 is not confined to the scrutiny of the correctness of the decision of the appellate authority only on point of law. This power of the District Judge or the Additional District Judge includes the scrutiny of the correctness of the decision both on point of law and fact to be determined on the basis of evidence on record.
 
Lawyers Involved:
Md. Ozair Farooq, Senior Advocate, instructed by Md. Md. Nawab Ali, Advocate-on-Record- For the appellant. 
Mahmudul Islam, Senior Advocate (Probir Neogi, Advocate with him), Instructed by Md. Aftab Hossain, Advocate-on-Record- For Respondent No. 1. 
Not represented- Respondent Nos. 2-7. 
 
Civil Appeal No. 52 of 2001. 
(From the judgment and order dated June 8, 2000 passed by the High Court Division in Civil Revision No. 5011 of 1998).
 
JUDGMENT
 
Md. Ruhul Amin, J.
 
This appeal, by leave, is against the judgment and order dated June 8, 2000 of a Single Bench of the High Court Division in Civil Revision No. 5011 of 1998 discharging the Rule obtained against the judgment and order dated November 10, 1998 of the 4th Court of Additional District Judge, Dhaka in বিবিধ (সমবায় সমিতিসমূহ)কেস নং- ২৯৭/৯৪ allowing the same upon setting aside the order made on August 12, 1994 in Appeal Case No.5 of 1994 by the Appellate authority and District Co-operative Officer, Dhaka affirming the judgment and order dated April 12, 1994 of the Arbitrator and Inspector of Co-operative Societies, Dhaka in Dispute Case No. 65 of 1993, filed under section 86 of the Co-operative Societies Ordinance, 1984, dismissing the same. 
 
2. Facts in the background of which the Dispute Case was filed, in short, are that Respondent No. 1 is the Member (No. 179) of Mirpur Mazar Co-operative Market Society Limited (the Society) and he got allotment of shop Nos. 235(ka) and 235(kha) in the ground floor of the under construction market of the Society and got possession of the said 2 shops. He let out the shop No. 235 (kha) to one Shah Alam and Respondent No. 1 having felt necessity of cash money mortgaged the shop no. 235(kha) to the appellant and his brother Fazlul Haque, who died later on, on December 7, 1979 and upon putting thumb impressions in the undertaking received Tk. 36,000/- as loan. It was stipulated in the said undertaking that in case of return of the aforesaid amount of money the appellant and his brother would return the shop no. 235 (kha) to him and till the money is returned appellant would be in control of the shop No. 235 (kha). He, in the month of January and February, 1985 paid back Tk. 36,000/- and thereupon the appellant returned the original copy of the mortgage deed, but did not make over possession of the shop. The appellant asked him to wait till disposal of the merchandise in the shop and he accepted the said assurance of the appellant since at the relevant time the appellant was one of the persons in the management of the Society. He waited for having the possession of the shop, but the appellant on different pretexts delayed handing over of possession of the shop and also harassed him and at one stage he avoided him (respondent No. 1). It is the contention of the Respondent No. 1 that at the time of taking his thumb impressions in the undertaking the same was not read over to him and the original copy of the undertaking having been returned to him, he caused the same to read to and then came to know that appellant had obtained his thumb impressions in the undertaking which was not a mortgage deed but a sale deed. As he did not get possession of the shop no. 235(kha), he represented to the District Co-operative Officer stating that although in pursuant to his representation an inquiry was held by the Thana Co-operative Officer, Mirpur and thereupon District Co-operative Officer, Dhaka by the Memo, dated 13.11.1988 addressed to the President and the Secretary of the Society directed them to allot to him shop No. 66 in the 1st floor and to return Tk. 3,000/-deposited towards the costs of construction of shop no. 235(kha), but no step in that respect was taken and as no step was taken, he prayed to the District Co-operative Officer, Dhaka for allotment of the shop No. 66 and for return of the money deposited towards costs of construction of shop no. 235(kha). On the said petition Dispute Case No. 65 of 1993 was registered. The Arbitrator and Inspector of the Co-operative Society, Dhaka by the order dated April 12, 1994 dismissed the claim of the Respondent No. 1 for allotment of shop No. 66 in the 1st floor and for return of Tk. 3,000/- deposited towards the costs of construction of shop no. 235(kha). As against the order of the Arbitrator the Respondent No. 1 filed Appeal No.5 of 1994 before the District Co-operative Officer and Appellate Officer. In the petition upon which the aforesaid appeal was registered it was stated that the Respondent No. 1 having felt necessity of cash money he on receiving Tk. 36,000/- from the appellant and his brother Fazlul Haque (now dead) mortgaged shop no. 235(kha) with the stipulation that on payment of the money the shop as well as the mortgaged deed would be returned and also possession of the shop would be restored to him and he had paid back the money to the appellant and thereupon although the appellant returned the original copy of the mortgage deed but did not handover possession of the shop. It was also stated in the said petition that the Respondent No. 1 at the time of hearing of the dispute case pointed out to the Arbitrator that the document on the basis of which appellant claiming the shop is forged.
 
3. In the petition upon which the appeal was registered it was prayed steps may be taken so that the Respondent No. 1 get back his shop no. 235(kha). The appellate authority dismissed the appeal with the finding that Dispute Case has correctly been decided. Then the Respondent No. 1 as per provision of section 134(5) of the Co-operative Societies Ordinance, 1984 (the Ordinance) filed Miscellaneous (Co-operative Society) Case no. 297 of 1994 before the Court of District Judge, Dhaka. The said appeal was heard by the 4th Court of Additional District Judge, Dhaka. Before the Court of learned Additional District Judge the Respondent No. 1 filed the deed dated 7.12.1979 which was returned to him by the appellant on paying back of the amount borrowed by the Respondent No. 1 and the appellant also filed the deed dated 14.3.1980 on the basis of which he claimed the shop contending that Respondent No. 1 sold the shop in question to him and the learned Additional District Judge on scrutiny of the said two documents arrived at the finding that the deed dated 14,3.1980 was brought into existence through forgery. The finding of the learned Additional District Judge that the deed dated 14.3.1980 was forged and fabricated based on internal evidence of that very document. The learned Additional District Judge also observed that the appellate authority disposed of the Appeal No. 5 of 1994 without calling the persons who figured as the witnesses in the deed of the Respondent No. 1 (herein appellant) and that without considering the paper filed by the parties. The learned Additional District Judge also held that the Respondent No. 1, who was the petitioner in Miscellaneous Case no. 297 of 1994 filed before the Court of District Judge, Dhaka; mortgaged the shop no. 235(kha) to the appellant who was Respondent No. 7 in the Miscellaneous Case, and to his brother on receiving Tk. 36,000/- and on repayment of the said amount the appellant, Respondent No. 1 herein, got back the document from the Respondent No. 7, herein appellant and his brother, but the Respondent No. 7 upon resorting to forgery and in collusion with the scribe of the deed, which was returned to the Respondent No. 1 herein and beyond the knowledge of said Respondent No. 1, got the mortgage deed written as সাফ কবলা and thereupon the Respondent No. 7, in the Miscellaneous Case no. 297 of 1994, is claiming that he has purchased the shop no. 235(kha) from the petitioner, herein Respondent No. 1. The learned Additional District Judge further held that the claim of the petitioner, herein Respondent No. 1, is genuine and correct and as such he is entitled to the relief as prayed for and the document that has been submitted by the Respondent No. 7, herein appellant, is forged and fabricated. It may be mentioned that the Respondent No. 1 as petitioner in the Miscellaneous Case no. 297 of 1994 prayed for return of the shop no. 235(kha). On the aforesaid findings and decisions the Court of Additional District Judge allowed the Miscellaneous Case upon setting aside the judgment and order dated 11.8.1994 passed in the Appeal Case No. 5 of 1994. 
 
4. It may be mentioned the Respondent No. 7, herein the appellant, contested the Miscellaneous Case no. 297 of 1994 by filing written objection. As against the judgment of the learned Additional District Judge in Miscellaneous Case no. 297 of 1994 the appellant moved the High Court Division in Revisional jurisdiction but without any success. Thereafter the appellant filed petition for leave to appeal before this Division. 
 
5. Leave was granted to consider the submissions that the appellant as was not a party in the dispute case and was also not made party in the appeal and his interest as was affected by the judgment and order passed by the learned Additional District Judge as such he moved the High Court Division but without any success; that both the Courts wrongly traveled beyond the scope of Section 134(5) of the Co-operative Societies Ordinance, 1984 as because the prayer made by the Respondent No. 1 in Miscellaneous Case No. 297 of 1994 was totally a new one from the prayer which Respondent No. 1 made in Appeal Case No. 5 of 1994 and the prayer made by the Respondent No. 1 in Appeal Case No. 5 of 1994 was also a new one from that he made in Dispute Case No. 65 of 1993 which amounts to embellishment from one stage to another with mala fide motive, that the High Court Division as well as the Court of Additional District Judge failed to take into consideration that the Respondent No. 1 having had set up a new and contradictory case one after another had no specific case against the appellant and as such the impugned judgments are not maintainable; that High Court Division committed illegality in holding that the point of discord between the parties is whether unregistered deed of sale dated 14.3.1980 produced by Respondent No. 7 is a valid deed of transfer or it resulted in transfer of any right on the face of allegation of creating the deed by fraud and forgery though such kind of statement or prayer has not been made by Respondent No. 1 in Dispute Case No. 65 of 1993 and Appeal Case No. 5 of 1994 and that too when the fingerprint expert found that the questioned document has been executed by Respondent No. 1 by putting thumb impression over the same; that the High Court Division as well as the Court of Additional District Judge and also the appellate authority traveled beyond the scope of the case and the law. 
 
6. The last submission that High Court Division, Court of Additional District Judge and the appellate authority traveled beyond the scope of law has not been substantiated by referring to any of the provisions of the Ordinance. The other contention that the Hand Writing Expert opined that the document dated 14.3.1980 was executed by the Respondent No. 1 is not well founded one since Hand Writing Expert opined that the thumb impressions of the Respondent No. 1 as were in the deed dated 14.3.1980 and marked by him as ‘ka' and 'ka-1' were indistinct and those were made indistinct by putting thumb impressions subsequently over the initial one. The Court of Additional District Judge on examination of the deed dated 14.3.1980 noticed that the date 14.3.1980 was written in the said deed upon erasing the date 7.12.1979 and that because of the nature of the thumb impressions, which were marked by the Thumb Impression Expert as 'ka' and 'ka-T’ he could not give any opinion as regard the thumb impressions appearing in the other sheet of the deed dated 14.3.1980. The learned Additional District Judge also observed that the deed dated 7.12.1979 submitted by the petitioner, herein Respondent No. 1, was of 2 pages, whereas deed dated 14.3.1980 submitted by the Respondent No. 7, herein appellant, was of 3 pages and that inspite of the fact that the deed of the Respondent No. 7 was of 3 pages but the 3rd page of the said deed was marked as 2nd page. In the aforesaid state of the matter the learned Additional District Judge held that the deed dated 14.3.1980 was a forged and fabricated deed. The other contention of the appellant is that at different stages of the case the Respondent No. 1 came with new case for adjudication. This contention also appears to be not correct since in the petition that was filed before the District Co-operative Officer and whereupon Dispute Case No. 65 of 1993 was registered it was stated that Respondent No. 1 is the owner of the shop no. 235(kha) and that on his representation to the authority an inquiry was held and on receiving the report of the enquiry office the District Co-operative Officer by the Memo, dated 13.11.1988 directed the President and the Secretary of the Society to allot shop No. 66 in the 1st floor and also to return the money that was deposited by the Respondent No. 1 in connection with the construction of shop no. 235(kha) and that the same having not been complied with by the Society the Respondent No. 1 filed petition with the prayer for allotment of the shop No. 66 in the 1st floor and for return of the money which he deposited in connection with the construction of the shop no. 235(kha) to the District Co-operative Officer, Dhaka. This fact clearly shows that the authority was convinced that the shop no. 235(kha) belonged to the Respondent No. 1. The Arbitrator dismissed the Arbitration Case on the finding that the relief sought by the Respondent No. 1 was not available to him since he had transferred the shop no. 235(kha). It may be mentioned that the Arbitrator while dismissing the Arbitration case observed that Respondent No. 1 by the deed dated 14.3.1980 transferred the shop no. 235(kha) on receiving Tk. 36,000/-. This shows that the appellant represented his case before the Arbitrator and in support of his claim he produced the deed dated 14.3.1980 before the Arbitrator. The Respondent No. 1 having had not the desired result in the Disputed Case No. 65 of 1993 he filed Appeal No.5 of 1994. The case of the Respondent No. 1 in the appeal petition has already been stated hereinbefore. Therefore it is seen that Respondent No. l's case was quite specific that he mortgaged the shop No-235(kha) to the appellant and his brother with the stipulation that on his paying back of the amount received from the appellant and his brother they would restore possession of the shop to the Respondent No. 1 and would also return the mortgage deed. It is seen from the judgment of the appellate authority that the appellant herein was very much present in the appeal and at the time of hearing thereof he placed his case before the appellate authority. The appellate authority upon accepting the case of the appellant herein dismissed the appeal on the finding that the Arbitrator has quite correctly disposed of the Dispute Case No. 65 of 1993. So it is seen from the discussions made hereinabove that the contention of the learned Counsel for the appellant that the Respondent No. 1 at different stages came with different cases for adjudication and that in the absence of the appellant the authorities as well as the Court disposed of the case against the appellant is not correct. Section 134(5) of the Ordinance provides for filing petition before the District Judge from an order of the appellate authority. This provision has been made for the examination of correctness of the decision of the appellate authority. The authority or power so assigned to the District Judge as well as to the Additional District Judge is not limited to the question of law alone, but also authorizes to examine the correctness of the decision of the appellate authority in the background of the materials on record and as such while examining the correctness of the decision of the appellate authority the District Judge or the Additional District Judge is quite competent to examine the case of the parties in the background of the materials placed on record and in the instant case the learned Additional District Judge on scrutiny of the materials brought on record by the parties arrived at the finding that the deed dated 14.3.1980 was forged and fabricated one. The power so exercised by the learned. Additional District Judge is quite in accordance with law. The learned Counsel for the appellant could not point out that in arriving at the said finding the learned Additional District Judge traveled beyond the materials on record and as such the submission that High Court Division as well as Court of Additional District Judge traveled beyond the provision of law as in section 134(5) of the Ordinance is of no merit. The other contention that High Court Division was not correct in holding that the point of discord between the parties is whether the deed dated 14.3.1980 produced by the Respondent No. 7, herein appellant is a valid deed of transfer or it resulted in transfer of any right on the face of allegation of creating the deed by fraud and forgery though there was no case like that in the Dispute Case No. 65 of 1993 as well as in the Appeal Case No.5 of 1994. It is seen from the petition upon which Appeal Case No. 5 of 1994 was registered it was stated in paragraph 6 of the said petition that the appellant and his brother were raising claim in shop no. 235 (kha) on the basis of forged deed and it was also stated that Respondent No. 1 had never transferred the shop no. 235(kha) to them and that it was also stated that inspite of his assertion before the Arbitrator about the forged deed the Arbitrator did not pay any hid to the same. This shows that the Respondent No. 1 pleaded his case before the Arbitrator as well as before the appellate Officer that the deed dated 14.3.1980 is a forged document and in that background of the fact the High Court Division was quite correct in the formulation of the point as referred to above and to which the learned Counsel for the appellant has taken exception. It is also the contention of the learned Counsel that there was no case of the Respondent No. 1 in the Dispute Case No. 65 of 1993 and Appeal Case No. 5 of 1994 that deed dated 14.3.1980 was forged one. The absence of soundness of this assertion has already been discussed. 
 
7.  On perusal of the judgment passed in the Miscellaneous case it is seen that  the learned Additional District Judge on correct appreciation of the materials on record and in the background of the internal evidence in the deed dated 14.3.1980 noticed by him, the Miscellaneous Case (Co-operative Societies) No. 297 of 1994 was correctly decided. 
 
8.  The submission of the learned Counsel for the Respondent No. 1 that what was implicit in  view of the nature of document dated 14.3.1980 that was made explicit by the judgment and order of the learned Additional District Judge in the Miscellaneous Case (Co­operative Societies) No. 297 of 1994 appears to be correct. The learned Counsel for the Respondent has  also submitted  that in  the instant case circumstantial evidence is such that no other judgment can be made other than the one made by the learned Additional District Judge while allowing the Miscellaneous Case (Co-operative Societies) No. 297 of 1994. In the background of the facts that were noticed by the learned Additional District Judge and considered by him while allowing the Miscellaneous Case we find substance in the submission of the learned Counsel for the Respondent No. 1. 
 
In view of our discussions made hereinabove we find no merit in this appeal. 
 
Accordingly the appeal is dismissed with costs. 
 
Ed.