Motaher Ali Vs. Yakubia Shamol Prokolpa Pvt. Ltd., (Kashefa Hussain, J.)

Case No: Civil Revision No. 245 of 2017

Judge: S. M. Emdadul Hoque, J And Kashefa Hussain, J

Court: High Court Division,

Advocate: Mr. Uzzal Bhowmick, Adv. Mr. Ruhul Kuddus with Mr. Mohammad Rezaul Karim, Advs,

Citation: 2019(1) LNJ

Case Year: 2017

Appellant: Motaher Ali

Respondent: Yakubia Shamol Prokolpa Private Limited and others

Subject: Specific Relief Act

Delivery Date: 2019-11-27

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

S. M. Emdadul Hoque, J

And

Kashefa Hussain, J

 

Judgment on

05.12.2017

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Motaher Ali

. . Petitioner

-Versus-

Yakubia Shamol Prokolpa Private Limited and others

. . . -Opposite party.

Specific Relief Act (I of 1877)

Section 12

Evidence Act (I of 1872)

Sections 45 and 73

In a suit for Specific Performance of Contract where the genunity or veracity of the bainanama is under challenge the issue obviously extends to the question of the existence of the contract itself, hence arriving upon a finding or decision as to the genunity of the signature prior to commencement of trial would tantamount to concluding the suit itself. In its order dated 25.10.2016 learned Court below correctly observed that in the event of arriving at a finding on the genunity of the report of the handwriting expert in that event there shall not remain any scope to examine witnesses and depositions made by them and shall give rise to further legal complications in conducting the proceedings. Any finding at this stage on the veracity of the report of the hand writing expert shall have a direct bearing during the trial of the suit and which is not at all desirable for appropriate and lawful dispensation of justice. Pursuant to the admission of the handwriting expert of certain flaws in the report and which is on record the Trial Court may at some stage consider the prayer of the plaintiff petitioner for sending the disputed signature to another handwriting expert for a second opinion.   . . . (9, 10 and 14)

AIR 1976 Delhi 175; AIR 1980 Orissa 98 ref.

Mr. Uzzal Bhowmick, Adv.

. . . For the Petitioner

Mr. Ruhul Kuddus with

Mr. Mohammad Rezaul Karim, Advs

. . . For the Opposite parties

                        JUDGMENT

Kashefa Hussain, J. Rule was issued in the instant Civil Revisional Application calling upon the opposite parties to show cause as to why the Order No. 140 dated 25.10.2016 passed by the learned Joint District and Sessions Judge, 1st Court, Sylhet in Title Suit No. 256 of 2006 rejecting the application for disposing the Expert Report before the final determination of the suit should not be set aside and/or pass such other or further order or orders as to this court may seem fit and proper.

2.             Facts relevant for disposal of the Rule is that the instant petitioner as plaintiff filed Title Suit for Specific Performance of Contract in Title Suit No. 256 of 2006 in the 1st court of Joint District and Sessions Judge, Sylhet praying for Specific Performance of Contract and conformation of possession of suit land. The plaintiff’s inter-alia is that the defendant No. 1 being predecessor of defendant No. 2(L) to (U) executed an unregistered bainanama on behalf of the plaintiff on 23.07.2003 upon receiving Tk. 28,42,276/- on various dates and delivered possession thereof. That as per the bainanama the defendants were supposed to execute sale deed on behalf of the plaintiff upon receiving the rest of the amount within one year but which the defendant refused to do. Under the facts and circumstances the plaintiff filed Title Suit No. 138 of 2004 (renumbered as Title Suit No. 256 of 2006) for Specific Performance of Contract and confirmation of possession. The plaintiff-opposite parties as defendants entered appearance and upon filing written statement denied the execution and the very existence of the bainanama dated 30.07.2003 claiming it to be forged and fabricated. The plaintiff filed an application for expert opinion on 22.11.2016 which was denied by the defendant No. 1. On 27.02.2016 the court allowed the application and the expert submitted report on 17.07.2008. Thereafter the expert upon examining the disputed signature and sample signature submitted his report on 17.07.2006 and which report apparently coursed against the claim and interest of the plaintiff. The plaintiff being aggrieved with the expert report which went in favour of the defendant No. 1 filed an objection against the expert report on 10.07.2013 and filed another additional objection against the same on 17.07.2016. Thereafter the plaintiff filed an application for second expert on 01.08.2016 but the court rejected the said application for second opinion by order dated 29.02.2016. That on the same date on 20.09.2016 the hand writing expert who had submitted the report was examined by the court as CW-1. Thereafter the plaintiff-petitioners filed another application on 06.10.2016 praying for accepting or rejecting the expert report before final determination of the suit. The Trial Court upon hearing the parties rejected the plaintiff petitioner’s application by its order dated 25.10.2016.

3.             Being aggrieved by the said Order No. 140 dated 25.10.2016 passed by the learned Joint District and Sessions Judge, 1st Court, Sylhet in Title Suit No. 256 of 2006 rejecting the application for disposing the expert report praying for accepting or rejecting the expert report before the final determination of the Suit, the Plaintiff as petitioner filed the instant Civil Revisional application which is pending before us for disposal.

4.             Learned Advocate Mr. Uzzal Bhowmick appeared on behalf of the petitioners while Learned Advocate Mr. Ruhul Kuddus along with Mr. Mohammad Rezaul Karim represented the opposite parties.

5.             Learned Advocate Uzzal Bhowmik for the petitioner submits that the Trial Court committed serious error in law in passing the impugned order dated 25.10.2016. Upon elaborating his submissions he contends that the court below failed to appreciate the fact that pursuant to objection of the expert report the court is bound to consider the objection and come into a decision at the time of hearing objections to the report. He assails that without overruling the objection the expert report cannot be examined for the purpose of trial nor can it be relied upon. He draws our attention to the impugned Order dated 25.10.2016 wherefrom he assails that it appears from the impugned order that the Trial Court below failed to appreciate the petitioner’s application for disposing or rejecting the expert report before trial and upon a wrong finding held that any decision on the basis of the expert report will be incomplete. Learned Advocate for the petitioners also submits that accepting or rejecting any expert report before commencement of trial does not amount to coming upon any finding or decision on the basis of such expert report. He also draws our attention to the records whereby he points out that earlier during the proceedings he had made an application for seeking opinion of a second expert by an application dated 01.08.2016 but which the Trial Court erroneously rejected by its order dated 20.09.2016. In pursuance of his submissions that the court below is bound to consider his objection to the expert report and also that it is bound to come into a decision at the time of hearing objection to the report, he further agitates that without overruling the objections the expert report cannot be used as a piece of evidence for the purpose of trial nor can it be relied upon. In support of his arguments he cites decision reported in AIR 1976 Delhi 175 and another report AIR 1980 Orissa page-98. He also submits that rejection of the petitioner’s application upon passing the impugned order dated 25.10.2016 is contrary to the provisions of Order 26 Rule 10 of the Code of Civil Procedure read with Section 45 and section 73 of the Evidence Act.

6.             In the light of his submissions he concludes that the impugned Order dated 25.10.2016 passed by the Trial Court rejecting the petitioner’s application dated 20.09.2016 is an erroneous Order and has caused grave injustice to the interests of the petitioner and therefore ought to be set aside and the Rule ought to be made absolute for ends of justice.

7.             On the other hand Learned Advocate Mr. Ruhul Kuddus opposes the Rule. However the opposite party did not submit any counter affidavit. Learned Advocate Mr. Ruhul Kuddus on behalf of the opposite party submits that the court arriving at a finding or decision upon the veracities or otherwise of the report of the hand writing expert at this stage of the proceedings would be tantamount to adjucating upon the issue before conclusion of the trial of the suit itself. He further submits that the opinion of hand writing expert is merely a piece of evidence only which can be decided upon proper trial and is not a conclusive proof so far as the genuinity of the bainanama is concerned. He also assails that the Learned Court below did not commit any error in passing the impugned order given that the court at this stage of the suit is not in a position to decide upon the veracity or otherwise of the report. Regarding the petitioner’s application praying for a second expert opinion for verifying the signature in the bainanama, the learned Advocate for the opposite party contends that it is apparent from the records that pursuant to the report of the handwriting expert the said expert was examined by the court as CW-1 and which the learned Advocate for the opposite party asserts is adequate enough till the trial itself. He concludes his submissions upon assertion that the impugned order No. 140 dated 25.10.2016 was correctly given and calls for no interference and therefore the Rule bears no merit and ought to be discharged for ends of justice.

8.             Heard the Learned Advocate from both sides, perused the materials on record including the impugned order dated 25.10.2016 passed by the learned Advocate. Upon perusal of the impugned order it transpires that the learned court in its Order gave observation as under:

h¡c£ f­®rl c¡h£ qm Aœ Q¤¢š²fÐh­®ml ®j¡LŸj¡l j§m ¢hou 30.07.2003Cw a¡¢l­®Ml Q¤¢š²fœ h¡ h¡ue¡j¡¢V pwnЭh qÙ¹¢m¢f ¢hn¡lc ®k fТa­®hce ®fn L­®l­®Re Eš² fТa­®hce ¢ho­®u Q§s¡¿¹ öe¡e£l c~‡e©B Aœ¡c¡ma LaѪL ¢pÜ¡¿¹ fÐce Ll¡z H ¢hou Aœ¡c¡m­®al ja¡ja qm Cq¡ HL¢V Q¤¢š²fÐh­®ml ®j¡LŸj¡ qJu¡u h¢ZÑa a¢LÑa Q¤¢š²¢V B­®c± ¢hh¡c£œ¡e frà­®ul j®­dÉ BCea pÇf¡¢ca q­®u¢Rm ¢Le¡ a¡q¡C Aœ ®j¡LŸj¡l j§m ¢hQ¡kÑ ¢houz Hja¡hÙÛ¡u h¢ZÑa Expert fТa®­hc­®el ¢i¢š­®a ®L¡el¦f ¢pÜ¡¿¹ fÐc¡e Ll¡ q­®m a¡q¡ BCepwNa i¡­®h ®j¡­®VJ f§ZÑ¡‰ ¢pÜ¡¿¹ q®­h e¡, ®Lee¡ a¡q¡­®a p¡r£­®cl p¡rÉ ¢h­®nÔo­®Zl p¤­®k¡N b¡L­®h e¡z gmax ea¥el¦­®f h¢ZÑa Q§¢š²l ¢ho®u BCeNa S¢Vma¡l pª¢ø qC­®hz h¢ZÑa AhÙÛ¡u h¡c£f­®rl c¡¢Mm£u clM¡Ù¹ öe¡e£ A­®¿¹ e¡ j”¤l Ll¡ qmz 

9.             From a perusal of the above order we are of the considered opinion that it is true that in a suit for Specific Performance of Contract where the genunity or Veracity of the bainanama is under challenge the issue obviously extends to the question of the existence of the contract itself, hence arriving upon a finding or decision as to the genunity of the signature prior to commencement of trial would tantamount to concluding the suit itself. In its order dated 25.10.2016 learned Court below correctly observed that in the event of arriving at a finding on the genunity of the report of the handwriting expert in that event there shall not remain any scope to examine witnesses and depositions made by them and shall give rise to further legal complications in conducting the proceedings.

10.         We are also of the considered view that in a suit for Specific Performance of Contract where the existence of the bainanama itself is under challenge therefore it is our view that any finding at this stage on the veracity of the report of the hand writing expert shall have a direct bearing during the trial of the suit and which is not at all desirable for appropriate and lawful dispensation of justice.

11.         Learned Advocate for the petitioner had cited some decisions before us inter alia a decision in the case of Kalandi Swain Vs Braja Kishore reported in AIR 1980 Orissa page-98 and in the case of Harbhajan Singh Vs Shakuntala Devi reported in AIR 1976 Delhi page-175. The learned Counsel attempted to draw an analogy from those cases with the case before us. We have examined the decisions in those cases. From a perusal it appears that the facts and circumstances in the AIR cases were different from the case before us. In those cases the courts had based their findings mainly upon the status, position and disposability of an enquiry report by an Advocate Commissioner report under Order 26 Rule 9 of the Code of Civil Procedure and had given their findings on the stage of a proceeding where a report under Order 26 Rule 9 case be disposed of including the stages where an authority is bound to consider objections to any such report of the Advocate commissioner.

12.         Upon comparison, the situation in this case is clearly different. In the instant case, the petitioner as plaintiff had made an application (which is Annexure in the application) for having the signature examined by a handwriting expert “qÙ¹ ®lM¡ ¢hn¡lc à¡l¡ fl£r¡ f§hÑL” and as is evident from the records the court allowed the application and likewise the procedure was followed accordingly. In the instant case no application or whatsoever was ever made for appointment of an Advocate Commissioner under Order 26 Rule 9 of the Code of Civil Procedure. Rather, in the case before us although no specific statute was referred to in the format of the application or elsewhere, yet we may assume that the application falls within the scope of section 45 and section 73 of the Evidence Act, 1872 which sections may be considered the relevant provisions for our purpose. Therefore it is clear that the application for handwriting expert falls with the scope of Section 45 and section 73 of the Evidence Act, 1872 and the AIR decisions referred to by the learned Counsel bear very less applicability here.

13.         However, from the records it appears that the plaintiff petitioners had prior to the application which gave rise to the impugned order dated 25.10.2016, made an earlier application dated 01.08.2016 praying for appointment of handwriting second expert but which the court rejected by its order dated 20.09.2016. While going through the records



Civil Revision No. 245 of 2017