Mohammad Moinuddin Siddique and others Vs. Mohammad Azam and others, 3 LNJ (2014) 565

Case No: Civil Revision No. 3920 of 2010

Judge: A. K. M. Zahirul Hoque,

Court: High Court Division,,

Advocate: Mr. Sk. Md. Jahangir Alam,Mr. Md. Ahsanul Kabir,,

Citation: 3 LNJ (2014) 565

Case Year: 2014

Appellant: Mohammad Moinuddin Siddique and others

Respondent: Mohammad Azam and others

Subject: Expert Opinion, Law of Evidence,

Delivery Date: 2011-11-20


HIGH COURT DIVISION
(Civil Revisional Jurisdiction)
 
Sharif Uddin Chaklader, J,
And
A. K. M. Zahirul Hoque, J.

Judgment on
20.11.2011
  Mohammad Moinuddin Siddique and others
. . . Petitioners
-Versus-
Mohammad Azam and others
... Opposite Parties
 

Evidence Act (I of 1872)
Section 73
Against the rejection of the application for examination of the signature of the defendants by hand writing expert the High Court Division was pleased to set aside the impugned order and directed the learned Joint District judge to dispose of the matter according to the provision of section 73 of the Evidence Act. . . .  (9 and 19)

Government of Bangladesh represented by the Secretary, Ministry of Housing and Public Works and another Vs. M. Saiful Alam and others, 6 BLD 201; Ishaque (Md) Vs. Ekramul Haque Chowdhury and others, 54 DLR (AD) 26 ref.

Mr. Md. Ahsanul Kabir, Advocate
. . . For the Petitioners
Mr. Sk. Md. Jahangir Alam, Advocate
.... For the Opposite Parties

Civil Revision No. 3920 of 2010
 
JUDGMENT
A. K. M. Zahirul Hoque, J.

This rule was issued calling upon the opposite party Nos. 1 and 2 to show cause as to why the impugned order No. 96 dated 24.08.2010 passed by the learned Joint District Judge, 2nd Court, Sadar, Chittagong in Miscellaneous Case No. 07 of 2007 arising out of Other Suit No. 56 of 2005, should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

Facts relevant for the purpose of disposal of the rule, in short, is that the petitioners as plaintiffs instituted a suit being Other Suit No. 56 of 2005 before the Court of learned Joint District Judge, 2nd Court, Sadar, Chittagong praying for Specific Performance of Contract impleading the opposite party Nos. 1-3 as defendants.

The case of the plaintiffs in short, is that the opposite party Nos. 1 and 2 being owner and possessor of the suit schedule land offered to transfer the suit land by Saf Kabala deed and the plaintiffs accepted the offer of the defendant Nos. 1 and 2 fixing the value of the suit schedule land at Tk. 15,00,000/-(Taka fifteen lacs) only. Thereafter the plaintiffs paid Tk. 14,60,000/- (Taka fourteen lacs sixty thousand) only on 18.09.2002 to the defendant Nos. 1 and 2 as earnest money by executing an agreement for sale. It was stipulated in the agreement for sale that defendants would received the rest of earnest money of Tk. 40,000/-(Taka fourty thousand) only and will executed and registered a Saf Kabala deed in favour of the plaintiffs. But subsequently the defendants did not execute and register a Saf Kabala deed in favour of the plaintiffs in spite of repeated demand for Saf Kabal deed. Hence the plaintiffs filed the instant suit for Specific Performance of Contract.

Thereafter the summons of the suit were properly served upon the defendants. But in spite of service of summons the defendants did not appear in the suit. Thereafter the suit was fixed for examination of witnesses and 3 (three) P. Ws were examined on behalf of the plaintiffs and after considering the evidence on record the learned Joint District Judge, Chittagong exparte decreed the suit by his judgment and decree dated 28.03.2006 (decree signed on 04.04.2006).

Thereafter the defendants being aggrieved by and dissatisfied with the aforesaid exparte judgment and decree filed a case being Miscellaneous Case No. 07 of 2007 on 26.05.2007 under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure for setting aside the exparte decree on the averments that the plaintiffs obtained the exparte decree through an agreement for sale which is false, fabricated without consideration and created through false personification.

As against the aforesaid Miscellaneous Case filed by the defendants the plaintiffs appeared in the Miscellaneous Case and filed a written objection on 19.09.2007 contending inter-alia that the summons of Other Suit No. 56 of 2005 were properly served upon the defendants. Moreover, the defendants are not entitled to get the benefit of Order 9 Rule 13(a) of the Code of Civil Procedure and as such the Miscellaneous Case filed by the defendants is liable to be rejected.

Thereafter the plaintiff Nos. 1-3 filed 02(two) other additional written objection on 12.02.2008 and 26.10.2009 denying the averment of the defendants made in the Miscellaneous Case praying for its dismissal.

During the pendency of the aforesaid Miscellaneous Case for hearing the plaintiffs filed an application on 24.08.2010 for examination of the signature of the defendants by hand writing expert to compare the signature of the defendant Nos. 1 and 2 with the signature of the defendants put in the postal A/D summons returned in Court with the service report.

After hearing the aforesaid application for handwriting expert the learned Joint District Judge (in charge), 2nd Court, Sadar, Chittagong rejected the said application on 24.08.2010 with the findings that there is no necessity of appearing of defendants for examination of their signature put in the summons returned in Court with service report and against the said order of the learned Joint District Judge the petitioner preferred this revisional application and obtained the present rule.

Mr. Ahsanul Kabir, the learned Advocate appearing on behalf of the petitioners submits that the learned Joint District Judge without giving any reason summarily rejected the application which is bad in law inasmuch as against the materials on record and the same is liable to be set aside. He further submits that the defendant Nos. 1 and 2 received the same by executed the signature on the return and it can be decided by the hand writing expert so the learned Joint District Judge ought to allow the application of the petitioner but it committed an error of law by rejecting the said application. In support of his submission the learned Advocate for the petitioners referred a decision in the case of Government of Bangladesh represented by the Secretary, Ministry of Housing and Public Works and another Vs. M. Saiful Alam and others, reported in 6 BLD 201.  He lastly prays that the rule be made absolute.

Mr. Sk. Md. Zahangir Alam, the learned Advocate appearing on behalf of the opposite party submits that originally the case was started in the year, 1996 and the petitioner filed the application for hand writing expert on the date of argument of the Miscellaneous Case which has nothing but with an intention to delay the trial of the case, therefore the rejection order of the Trial Court is very much proper and legal. However, he submitted that the hand writing can be examined by the Court itself as per section 73 of the Evidence Act without making any delay and in passing such direction upon the court below the matter can be disposed of.

Heard the learned Advocates for both the sides, perused the materials on record including the impugned order itself.

We have gone through the impugned order dated 24.08.2010 and the relevant portion of the order is as under; “এমতাবস্থায় ১-৩ নং প্রতিপক্ষের দরখাস্ত না মঞ্জুর করা হইল। আগামী ২৬/৯/২০১০ইং তারিখ যুক্তি তর্ক শুনানী।”

It appears that the learned Subordinate Judge without giving any specific reason for rejecting the prayer has passed the opinion to the effect that; “উক্ত বিষয়ে সিদ্ধান্ত  গ্রহন বা প্রমান করার জন্য নানা উপায় আছে।” And the findings and opinion of the court below are very much unspecific which does not carries any value in the eye of law.

We have gone through the decision in the case of Ishaque (Md) Vs. Ekramul Haque Chowdhury and others, reported in 54 DLR (AD) 26 in where their lordships held that,

“It is well settled that Section 73 of the Evidence Act permits the Court to make a comparison of signature or writings and so adoption of such a method cannot be termed as hazardous or dangerous.”

Therefore in the light of the above decision along with the facts and circumstances of the case we find that the ends of justice would be met if the learned Subordinate Judge disposal the matter after examining the hand writing by himself as per provision of Section 73 of the Evidence Act we have got the notice that the matter is very much old of 1996.

Accordingly we find substances in the submission of the learned Advocate for the petitioner.

In the result, the rule is made absolute. The impugned order No. 96 dated 24.08.2010 passed by the learned Joint District Judge, 2nd Court, Sadar, Chittagong in Miscellaneous Case No. 07 of 2007 arising out of Other Suit No. 56 of 2005 is hereby set aside and on the other hand, the learned Joint District Judge, 2nd Court, Sadar, Chittagong is hereby also directed to disposal the matter in accordance with law after taking decision in the said hand writing in pursuance of Section 73 of the Evidence Act instead of other expart  opinion within 03 (three) months from the date of received of this judgment and order.

Send down a copy of the judgment and order to the court below at once.

Ed.