Secretary, Ministry of Works and anoth­er Vs. Md. Yusuf Ali Khan and others, 1 ADC (2004) 312

Case No: Civil Appeal No. 38 of 1994

Judge: KM Hasan ,

Court: Appellate Division ,,

Advocate: Syed Ishtiaq Ahmed,Abdur Razaque Khan,,

Citation: 1 ADC (2004) 312

Case Year: 2004

Appellant: Secretary, Ministry of Works and anoth­er

Respondent: Md. Yusuf Ali Khan and others

Subject: Limitation, Law of Contract,

Delivery Date: 2002-08-21

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mainur Reza Chowdhury CJ
KM Hasan J
Md. Fazlul Haque J
 
Secretary, Ministry of Works and anoth­er
……..……..........Appellants
Vs.
Md. Yusuf Ali Khan and others
........................Respondents
 
Judgment
August 21, 2002.
 
The Limitation Act, 1908
Article 113
The Contract Act, 1972
Section 46
Discrepancy in the signatures on the two documents in how they are spelt but we also found similar discrepancy in the signatures of the respondent No. 2 on the same document. It appears to us that the lady was in the habit of using different spelling in her signatures. Therefore the discrepancy in the signatures in our view does not affect the genuineness of the signatures. …. (16)
 
Lawyers Involved:
Abdur Razaque Khan, Additional Attorney General (Faisal H. Khan, Assistant Attorney General with him) instructed by Md. Ataur Rahman Khan, Advocate-on-Record-For the Appellants.
Syed Ishitaque Ahmed, Senior Advocate and Mahmudul Islam, Senior Advocate (Probir Neogi), Advocate, with him) instructed by Md. Aftab Hossain, Advocate-on-Record-For Respondents Nos. 1 & 3.
Not represented-Respondent No. 2.
 
Civil Appeal No. 38 of 1994.
(From the judgment and order dated 3.8.1993 passed by the Appellate Division in First Appeal No. 52 of 1990).
 
JUDGMENT
KM Hasan J.
 
This appeal by special leave is directed against the judgment and order dated 3.8.1993 of the High Court Division passed in First Appeal No. 52 of 1990 filed by the respondents. The respondent No. 1 as plain­tiff instituted Title suit No. 135 of 1985 in the First Court of Subordinate Judge, Dhaka, for Specific Performance of Contract on the aver­ments, inter alia, that the respondent No. 2, Begum Mariam Iqramullah Khan, executed a deed of agreement in favour of the respondent No.1 on 11.7.1970 for sale of land measuring 10 (ten) kathas 5 (five) chateaus, more or less, situated in the Gulshan Model Town of the Dhaka Improvement Trust for a Consideration of Tk. 90,000/- (Taka Ninety thousand). Out of total consideration money the respondent No.1 paid Tk. 50,000/- (Taka Fifty thousand) as earnest money on 11.7.1970. It was stipulated in the agreement for sale that after obtaining necessary clearance certificate from Dhaka Improvement Trust, She would execute and register a deed of sale in favour of the plaintiff respondent on acceptance of the balance con­sideration of Tk. 40,000/- (Taka forty thou­sand). Due to disturbance that followed later on the respondent No. 2 Could not fulfill her part of the contract and in the last part of 1975 she gave an assurance that she would do everything for the registration of deed of sale and accepted fur­ther sum of Tk. 20,000/- (Taka twenty thou­sand) from the plaintiff respondent on 19.12.1975 against receipt singed by her on the back of the agreement for sale. In course of time she took another sum of Tk. 15,000/- (Taka fif­teen thousand) from the plaintiff respondent against receipt signed by her on the back of the agreement on 29.11.1979. Thereafter the respondent No. 2 further took an amount of Tk. 2,000/- (Taka two thousand) from the plaintiff respondent against receipt signed by her on the back of the agreement. Thus the defendant respondent altogether received a sum of Tk. 87,000/- (Taka eighty seven thousand) out of Tk. 90,000/- (Taka Ninety Thousand) leaving a balance of Tk. 3,000/- (Taka three thousand) which as actually offered to her at that time. But she flatly refused to accept it and demanded more than what was agreed upon in fla­grant violation of the aforesaid deed of agree­ment. Hence the plaintiff was constrained to institute Title Suit No. 135 of 1985 before the learned Subordinate Judge, Dhaka, for Specific Performance of Contract by directing the defen­dant No. 1 to execute and register a deed of sale in respect of the suit property in favour of the plaintiff.
 
2. The respondent No. 2 Mrs. Mariyam Iqramullah Khan, filed a written statement stat­ing, inter alia, that the plaintiff agreed to pay a sum of Tk.10, 000/- (Taka Ten thousand) more than the amount mentioned in the agreement on account of increase of price but the plaintiff in violation of his own word refused to pay more than Tk. 3,000/- (Taka Three thousand) and as such it was the plaintiff who was at fault and not the defendant No. 1 as alleged.
 
3. The respondent No. 3, Dhaka Improvement Trust, filed a written statement denying the material allegations contained in the plaint and stating, inter alia, that DIT does not recognize any agreement to transfer DIT lands without prior permission and without pay­ing the transfer fee as per mandatory provisions stipulated in the lease deed.
 
4. The defendants No. 3 Ministry of Public Works and Urban Development filed a written statement denying the material allegations con­tained in the plaint and stating, inter alia, that at the time of promulgation of President's Order No. 16 of 1972 the original owner of the house was not in Bangladesh. The respondent No. 2 also lost possession and control of the house and the house was vested in the Government as an abandoned property. Immediately after inde­pendence the suit house was taken under the control of the police department and used as police outpost and is still continuing to be under the control of the police department. However, the suit property was not included in the gazette under Ordinance LIV of 1985 due to a mistake.
 
5. The learned Subordinate Judge after hearing the parties arrived at the findings that the claim of physical possession of the suit property by the plaintiff is not a fact, the suit is barred by limitation and bainapatra, Ext.1 is not a genuine document. Upon these findings he dismissed the suit by his judgment and order dated 5.1.1990.  Against that judgment the plaintiff filed first Appeal No. 52 of 1990 before the High Court Division and the High Court Division after hearing the parties and discussing the oral and documentary evidence adduced by the parties, allowed the appeal reversing the judgment of the Court below. It compared the signatures of the respondent No. 2 in Exts. 1 and 2 and came to the conclusion that they are iden­tical and of the respondent No. 2.
 
6. It further came to the conclusion that since the signatures on the agreement, Ext. 1 and part payment of consideration money were proved by the witnesses of the plaintiff, the exhibit is a genuine document. It also found that handing over all the original documents of the property as well as possession of the property by the respondent No. 2 to the respondent No.1 are the important elements of part performance of the contract by the respondent No. 2.
 
7. It further found that the defendant appel­lants failed to produce any papers before the court to show that police outpost had been set up by the Government or that the suit house was listed as an abandoned property and the posses­sion of it was taken over by the Government.
 
8. On the other hand according to the High Court Division PWs have proved the presence of defendant respondent in this country in 1775, 1979 and 1982. Therefore, it concluded that the question of treating the case property as an abandoned property is absurd.
 
9. Being aggrieved the defendant appellants moved Civil Petition for leave to appeal No. 78 of 1994 before this Division against the judg­ment and order dated 3.8.1993 and leave was granted on 19.6.1994 to consider the following grounds-
 
"Mr. B Hossain, learned Deputy Attorney General appearing for the Government defendant appellants sub­mits first, that clause 22 and 23 of the registered lease deed in respect of the suit house, if read together, imply that prior written permission of DIT is nec­essary in execution of a bainapatra for sale and the High Court Division fell into an error of law in overlooking the said provision and holding that the stage for obtaining permission has not yet reached."
 
He next contends that the High Court Division was wholly wrong in allowing the appeal and decreeing the suit for Specific Performance of Contract although the plaintiff, who claimed possession in the suit land in part performance of the contract dated 11.7.1970 by filing suit on 30.9.1984 utterly failed to prove his possession.
 
Lastly, he submitted that the alleged agree­ment was executed on 11.7.1970 and the suit was filed on 30.9.1984 the learned Subordinate Judge found the suit to be barred by limitation and the High Court Division erred in law in allowing the appeal after holding that the suit is not barred by limitation. He also submits that several other material findings of the trial court have not been reversed by the High Court Division."
 
10. Mr. Abdur Razaque Khan, the learned Additional Attorney General appearing for the appellants as an introductory remark submits that the leave granting order has kept almost every question relating to the suit property open to be decided by this Division.
 
11. Mr. Mahmudul Islam, the learned Counsel appearing for the respondents at the very initial stage argues that the High Court Division, being the last court of finding of fact, should not go into the consideration of adequa­cy or inadequacy of evidence unless the appel­lants can show misreading of evidence or fail­ure to take into consideration material facts resulting in error of law.
 
12. Mr. Abdur Razaque Khan, the learned Additional Attorney General, argues that if clauses 22 and 23 of the lease deed in respect of the suit house are read together then they will imply that prior written permission of DIT is necessary in Execution of an agreement for sale and the High Court Division failed to consider these provisions. A reading of clauses 22 and 23 of the lease agreement will further show that thirty days notice to DIT for transfer of the lease property is necessary.
 
13. In reply, the learned counsels for the respondents have submitted that the transfer has not yet been completed. Therefore, the question of not taking permission from the DIT for trans­fer does not arise. Permission of DIT can yet be taken. It appears to us that if the transfer was completed the title suit for specific performance would not have been filed by the plaintiff respondents. The question of violation of claus­es 22 and 23 of the lease will arise only in a case where transfer of DIT land is completed.
 
14. Mr. Abdur Razaque Khan, the learned Additional Attorney General then argues that the plaintiff respondents failed to prove their possession in the suit house though they claimed possession in part performance of the contract. He submits that it is not supported by evidence that the respondent No. 2 after execut­ing the bainapatra put the plaintiff respondents into possession. No one has seen the plaintiff respondents in possession for a day, nor is it ever established that the defendant respondent was in possession at the time of liberation. On the other hand there is a police outpost on the suit house which was found to be an abandoned property. It is further argued on behalf the appellants that except the Bainapatra and oral evidence no other evidence like WASA receipt, municipality tax, sewerage receipt etc. which are generally produced before the court in such cases were produced in this case in support of the plaintiff respondents claim of possession.
 
15. It appears from the record that the plain­tiffs' claim, of a police outpost in the suit prop­erty is not supported by any documentary evi­dence police Regulations 335, 355, 373, 375 and 1251 require different type of registers, like inspection register, record of land etc to be kept in the police post and the police station. But no such register was produced before the court. Moreover, the High Court Division being the last court of facts have come to a definite finding as to the possession of the plaintiff respon­dent. This court will not interfere with such finding of facts unless it can be shown that there is misconstruction of document and evidence. As we said before, this Court will not go into consideration of adequacy and inadequacy of evidence.
 
16. Mr. Abdur Razaque Khan, the learned Additional Attorney General then argues that the High Court Division erred in law, in allowing the appeal, by not comparing the signatures of the vendor respondent No. 2 on Exts. 1 and 2 by expert, especially when the trial court held that the signatures of the vendor on the two docu­ments did not tally. It appears from the judg­ment of the High Court Division that the Judges of the High Court Division themselves com­pared the signatures of the respondent No. 2 on Exts. 1 and 2 and came to the conclusion that the signatures were identical. However in view of the above submission we examined the sig­natures of the respondent No.2 on the afore­mentioned two documents and other docu­ments. It is true that we found discrepancy in the signatures on the two documents in how they are spelt but we also found similar discrep­ancy in the signatures of the respondent No. 2 on the same document. It appears to us that the lady was in the habit of using different spelling in her signatures. Therefore the discrepancy in the signatures in our view does not affect the genuineness of the signatures of the vendor respondent No. 2 on the documents.
 
17. It is stated by the defendant No. 3, Ministry of public works and Urban Development, that by mistake the suit property was not included in the list of abandoned properties under Ordinance 54 of 1985. It is also argued before us that since the Title Suit No. 135 of 1985 for specific performance was pending the suit property was not included in the list of the abandoned properties. This argument is not acceptable to us as the suit was for specific performance, not challenging the abandoned nature of the suit property. A suit for specific performance is regarding controversy between the two parties whereby one of the parties pray for execution of necessary documents in his favour. Therefore pending of such a suit cannot be pleaded as a bar to the inclusion of the suit property in the list of the abandoned properties under ordinance 54 of 85. In view of the above a suit for specific performance of contract can not be a suit in contemplation under proviso A of Section 5 of the Ordinance. The suit proper­ty was never included in the abandoned proper­ty list though the time for inclusion of new properties in the list was extended till 1988.
 
18. The learned Additional Attorney General argues that the trial court conclusively found the suit property to be an abandoned property. He also argues that the abandoned nature of the property is very much apparent from various facts. In this connection he has referred to a survey report. The survey report is not regarding that particular house but regard­ing many other houses all over the county, then again the survey was not conducted in presence of the plaintiff respondents. Therefore the sur­vey report cannot be relied upon since no evi­dence is produced by the appellants before us to show that the suit building was ever included in the list of abandoned properties the defendant appellants are stopped by law from claiming it to be an abandoned property.
 
19. Mr. Abdur Razaque Khan, the learned Additional Attorney General then argues that the trial court found the suit is barred by limita­tion but the High Court Division erred in law in deciding that the suit is not barred by limitation overlooking the fact that the agreement for alleged sale deed is dated 11.7.1970 whereas the suit was filed 14 years thereafter on 30.9.1984.
 
20. He argues that under Article 113 of the Limitation Act the period within which a suit shall have to be filed is three years. By referring to the bainapatra he submits that Tk. 50,000/- is alleged to have been paid to the vendor at the time of its singing on 11.7.1970, next payment of Tk. 20,000/- was made in the year 1975, Tk. 15,000/-was paid in the year 1979 and Tk. 2,000/-in the year 1982. One of the conditions of the bainapatra was that the vendor will get the income tax clearance certificate and permis­sion from DIT for the execution of the sale deed. But no application has yet been made for getting the income tax clearance and permission from DIT. He argues that under section 46 of the contract Act this suit should have been filed within a reasonable time in reference to getting certificate from the Income Tax authority and permission from DIT for the transfer of the suit property and according to him, the reasonable time cannot extend up to 14 years. Therefore, the suit is barred by limitation and the High Court Division was wrong in holding that the suit is not barred by limitation under Article 113.
 
21. According to the Article the limitation begins to run from "the date fixed for the per­formance, or if no such date is fixed, when the plaintiff has notice that performance is refused". It appears that the bainapatra does not give any specific time for the payment of the rest of the amount. Therefore the time limita­tion will start from the date of refusal expressly or by conduct when there is no express refusal. In this case there is no such conduct which might be interpreted as refusal. On the other hand the respondent No. 2 continued to take money from time to time and payment was made till 1982. Moreover, Article 113 of the Limitation Act is to be strictly applied. It has nothing to do with reasonable time, Reasonable time for performance of contract under section 46 of the Contract Act, as referred to by the Additional Attorney General, is an alien con­ception to the limitation prescribed in the limitation Act which does not contemplate any reasonable time, therefore, in our view the suit is lot barred by limitation.
 
In consideration of the above discussion we lo not fined any substance for allowing the appeal.
 
The appeal is dismissed without any order of costs
 
Ed.