November 2012 Issue

124

A. K. Azad and another Vs. Mostafizur Rahman and others. (Syed Mahmud Hossain, J.)

APPELLATE DIVISION (CIVIL)

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defendant No.1 had sign the bainapatra by obtaining the opinion of the hand writing expert. When appeal is the continuation of Mr. Surendra Kumar } A. K. Azad and . the suit for which the appellate court in a fit another Sinha, J. …Appellants case can obtain additional evidence. The Mr. Md. Abdul appellate court did not exceed its } Wahhab Miah, J. VS jurisdiction in taking opinion of the hand Mrs. Nazmun Ara } Mostafizur writing expert.

Sultana, J. Rahman and The finding of the High Court Division that Mr. Justice Syed others.

Mahmud Hossain } ....Respondents defendant No.1 did not challenge the genuineness of his signature on the Mr. Justice Md. } ‘bainapatra’ in the trial Court is wrong as Shamsul Huda, J. defendant No.1 in his written statement Judgment stated in no uncertain terms that he did not } 13th June, 2012. sign the ‘bainapatra’ and that his signature was forged in the bainapatra. Such being the state of affairs, the onus shifted on the Evidence Act (I of 1872) plaintiff to show that defendant No.1, in Sections 45 and 137 From the cross-examination of the fact, signed the bainapatra by obtaining the handwriting expert, it appears that the opinion of the handwriting expert. The High plaintiff did not at all challenge the opinion Court Division took serious exception to the of the handwriting expert. The plaintiff appellate Court’s decision of obtaining asked some questions to the handwriting opinion of the handwriting expert. It must expert without confronting her about the be borne in mind that appeal is the veracity of her opinion. Therefore, it continuation of the suit and the appellate appears that the plaintiff could not shake Court has similar power like that of the trial the credibility of the opinion of the Court and the appellate Court in appropriate cases can obtain additional handwriting expert. …(18) evidence to come to a correct decision. By Code of Civil Procedure (V of 1908) taking opinion of the handwriting expert, Order XLI, rule 27 the appellate Court did not exceed its Evidence Act (I of 1872) jurisdiction. ….(20) Sections 45 and 101 When the defendant No.1 in his written Code of Civil Procedure (V of 1908) statement stated that he did not sign the Order XLI, rule 31 bainapatra and as such signature was The appellate court came to a definite forged as a result of which the onus was finding that the plaintiff could not prove the shifted upon the plaintiff to prove that alleged contract but the High Court Division without revering such finding illegally made the rule absolute. ...(21)

CIVIL APPEAL NO. 283 OF 2010 with CIVIL PETITION FOR LEAVE TO APPEAL NO. 73 OF 2012.

(Arising out of Civil Revision No. 2910 of 2009 and Civil Revision No. 2385 of 2011)

I LNJ AD (2012)

A. K. Azad and another Vs. Mostafizur Rahman and others. (Syed Mahmud Hossain, J.)

Mr. Abdul Wadud Bhuiyan, Senior Advocate, instructed Mrs. Sufia Khatun, Advocate-onRecord. ......For the Appellants.

Mr. Harendra Nath Nandi, Advocate, instructed by Mrs. Sufia Khatun, Advocate-onRecord. ....For the Petitioners Mr. Mahbubey Alam, Senior Advocate, instructed by Mr. Zainul Abedin, Advocate-onRecord. ‌For Respondent No.1 Not represented.

....Respondent Nos. 2-3.

Not represented.

‌For the Respondents Judgment

Syed Mahmud Hossain, J:

This appeal by leave by the appellants is from the judgment and order dated 10.11.2009 passed by the High Court Division in Civil Revision No. 2910 of 2009 making the Rule absolute setting aside those dated 04.08.2009 passed by the learned Additional District Judge, Second Court, Dhaka in Title Appeal No.370 of 2003 allowing the appeal and reversing those dated 09.08.2003 passed by the Senior Assistant Judge, Sixth Court, Dhaka in Title Suit No.195 of 2002 decreeing the suit.

2. The facts leading to the filing of this appeal, in short, are as follows: The petitioners as the plaintiffs filed Title Suit No.195 of 2002 in Sixth Court of Senior Assistant Judge, Dhaka for specific performance of contract, for executing a deed of sale and for recovery of khas possession against the defendants.

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3. On 03.03.2002, defendant No.1 executed a bainapatra in favour of the plaintiff on receipt of Tk. 50,000/- out of the total consideration of Tk. 60,000/- for selling the land appended in the schedule to the plaint. On the date of bainapatra it was stipulated that the plaintiff would give the balance amount of Tk. 10,000/- within three months and that defendant No.1 would execute and register deed of sale in favour of the plaintiff. Defendant No.1 did not take the balance consideration money and at last on 25.07.2002 denied taking the balance consideration money. He also denied executing the deed of sale in presence of the witnesses. Hence the plaintiff filed the suit.

4. Defendant No.1 contested the suit by filing written statement denying the material statements made in the plaint. His case, in short, is that the suit is bad for defect of parties and barred by law of limitation. The bainapatra dated 03.03.2002 is forged and is created by the plaintiff.

Defendant No.1 did not take any money from the plaintiff. The case is totally false and fabricated. In such view of the matter, the suit is liable to be dismissed.

5. The trial Court decreed the suit by judgment and order dated 09.08.2003.

6. Against the judgment and decree of the trial Court, defendant Nos.1 and 2 preferred Title Appeal No. 370 of 2003 before the District Judge, Dhaka. On transfer, the appeal was heard by the learned Additional District Judge, Second Court, Dhaka, who by the judgment and order dated 04.08.2009 allowed the appeal

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A. K. Azad and another Vs. Mostafizur Rahman and others. (Syed Mahmud Hossain, J.)

reversing the judgment and decree passed by the trial Court.

7. Against the judgment and decree passed by the appellate Court, the plaintiff filed a revisional application before the High Court Division and obtained Rule in Civil Revision No. 2910 of 2009. The High Court Division made the Rule absolute by the judgment and order dated 10.11.2009.

8. Feeling aggrieved by and dissatisfied with judgment and order dated 10.11.2009 passed by the High Court Division, the defendants moved this Division by filing Civil Petition for Leave to Appeal No. 2505 of 2009 in which leave was granted on 04.07.2010 resulting in the initiation of Civil Appeal No. 283 of 2010.

9. Mr. Abdul Wadud Bhuiyan, learned Senior Advocate, appearing on behalf of the appellants, submits that the High Court Division committed illegality in holding that there is no scope for obtaining the opinion of the handwriting expert at the appellate stage although appeal is the continuation of the suit and that defendant No.1 rightly prayed for additional evidence at the appellate stage and as such, the impugned judgment should be set aside. He further submits that the High Court Division came to the finding that defendant No.1 did not raise the question of genuineness of his signature on the ‘bainapatra’ at the trial and that no such issue was framed in the trial Court to that effect although defendant No.1 in his written statement in an unequivocal terms stated that his signature appearing on the ‘bainapatra’ was forged

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and as such, the impugned judgment should be set aside. He then submits that the P.Ws. could not prove execution and passing of consideration money and in such state of affairs, a suit for specific performance of contract could not be decreed.

10. Mr. Mahbubey Alam, learned Senior Advocate appearing on behalf of respondent No.1, on the other hand, submits that the trial Court compared the signature of defendant No.1 appearing on the ‘bainapatra’ with his admitted signature according to the provision of section 73 of the Evidence Act and there was no scope for obtaining opinion of the handwriting expert at the appellate stage and as such, no interference is called for by this Division. He further submits that the grounds on which leave has been granted had already been addressed by the High Court Division and as such, the impugned judgment should not be set aside.

11. We have considered the impugned judgment, the submissions of the learned Advocates and the papers incorporated in the paper book.

12. Before addressing the submissions of the learned Advocates, it is necessary to quote the submissions on which leave was granted as under: I.

The trial Court by order No.11 dated 23.03.2003 noticed about filing of an application by the defendant for expert opinion in respect of the signatures appearing in the ‘bainapatra’ and also directed the plaintiff to submit the disputed ‘bainapatra’ to the Court and the

I LNJ AD (2012)

A. K. Azad and another Vs. Mostafizur Rahman and others. (Syed Mahmud Hossain, J.)

‘bainapatra’ was filed on 31.03.2003 but the Court did not pass any order for examination of the signatures by an expert and without ascertaining the genuineness of the signature observed that the ‘bainapatra’ is genuine and in the face of such facts, the findings by the High Court Division that the defendant raised no question about the genuineness of the signature of the ‘bainapartra’ in the trial Court and raised the same for the first time before the Court of appeal below is misconceived, baseless and perverse.

II. The Court of appeal below found that the expert’s opinion obtained with modern scientific instrument disclosed that the signature of the defendant in the ‘bainapatra’ is false and forged and on the other hand, the P. Ws. could not prove that the defendant signed the ‘bainaparta’ nor could prove payment of the amount consideration to the defendant and with the findings the Court of appeal below reversed the finding of the trial Court and the High Court Division failed to show that these findings are perverse, baseless and illegal and therefore, the findings of the Court of appeal below being the findings of fact, these findings are binding upon the High Court Division.

13. It appears that by Order No.11 dated 23.03.2003 the trial Court noticed about filing of an application by defendant No.1 for expert’s opinion in respect of the

127

signatures appearing on the ‘bainapatra’ and directed the plaintiff to submit the disputed ‘bainapatra’ to the Court and the ‘bianapatra’ was filed on 31.03.2003. But the trial Court did not pass any order for examination of the signatures by an expert and without ascertaining the genuineness of the signatures observed that the disputed ‘bainapatra’ was genuine.

14. During pendency of the appeal, the defendant-appellant filed an application on 16.05.2004 praying for obtaining the opinion of handwriting expert to ascertain the genuineness of his signature appearing on the bainapatra dated 30.03.2002 with some of his admitted signatures. The said application was allowed. On 06.11.2004, the appellate Court received the opinion of the handwriting expert by a memo dated 05.10.2004. The order allowing the prayer for obtaining opinion of the handwriting expert was challenged before both the Divisions of this Court and was upheld.

Because of the order of stay passed at different stages, the handwriting expert could not complete her deposition before the Court. On 11.06.2009, the hand writing expert completed her deposition.

15. Having considered the opinion of the handwriting expert and the evidence of the P.Ws., the appellate Court came to a finding that the signature of defendant No.1 appearing on the ‘bainapatra’ was not genuine and that the plaintiff could not prove the bainapatra.

16. Mr. Abdul Wadud Bhuiyan, learned Advocate appearing on behalf of the appellants read out the depositions of

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A. K. Azad and another Vs. Mostafizur Rahman and others. (Syed Mahmud Hossain, J.)

the P.Ws. From the evidence of P.Ws.1, 2, 3 and 4, it appears that they did not state anything about execution of the ‘bainapatra’ by defendant No.1 in their evidence.

17. What is important to note here is that execution consists in signing a document read out and understood and does not consist of merely signing a name upon a blank sheet of paper. To be executed a document must be in existence.

18. From the cross-examination of the handwriting expert, it appears that the plaintiff did not at all challenge the opinion of the handwriting expert. The plaintiff asked some questions to the handwriting expert without confronting her about the veracity of her opinion. Therefore, it appears that the plaintiff could not shake the credibility of the opinion of the handwriting expert.

19. Mr. Abdul Wadud Bhuiyan, learned Advocate has drawn our attention to the fact that before filing of the suit for specific performance of contract, defendant No.1 filed a miscellaneous case for preemption against the plaintiff. He, therefore, submits that in view of the strained relationship between the parties, the question of entering into a contract by defendant No.1 with the plaintiff did not arise. This submission of the learned Advocate can not be brushed aside.

20. The finding of the High Court Division that defendant No.1 did not challenge the genuineness of his signature on the ‘bainapatra’ in the trial Court is wrong as defendant No.1 in his written statement stated in no uncertain terms that

I LNJ AD (2012)

he did not sign the ‘bainapatra’ and that his signature was forged in the bainapatra.

Such being the state of affairs, the onus shifted on the plaintiff to show that defendant No.1, in fact, signed the bainapatra by obtaining the opinion of the handwriting expert. The High Court Division took serious exception to the appellate Court’s decision of obtaining opinion of the handwriting expert. It must be borne in mind that appeal is the continuation of the suit and the appellate Court has similar power like that of the trial Court and the appellate Court in appropriate cases can obtain additional evidence to come to a correct decision. By taking opinion of the handwriting expert, the appellate Court did not exceed its jurisdiction.

21. The appellate Court being the final Court of fact came to a definite finding that the plaintiff could not prove the alleged contract and the High Court Division without reversing the findings of the appellate Court with reference to the evidence on record made the Rule absolute setting aside the judgment and decree of the appellate Court.

22. In the light of the findings made before, we find that the impugned judgment and order passed by the High Court Division can not sustain in law.

23. Accordingly, the appeal is allowed without any order as to costs.

Civil Petition for Leave to Appeal No.73 of 2012 arising out of an order rejecting the application for rejection of plaint has become infructuous as the appeal is allowed. Therefore, the civil petition is dismissed as being infructuous.

Ed.

124

A. K. Azad and another Vs. Mostafizur Rahman and others. (Syed Mahmud Hossain, J.)

APPELLATE DIVISION (CIVIL)

I LNJ AD (2012)

defendant No.1 had sign the bainapatra by obtaining the opinion of the hand writing expert. When appeal is the continuation of Mr. Surendra Kumar } A. K. Azad and . the suit for which the appellate court in a fit another Sinha, J. …Appellants case can obtain additional evidence. The Mr. Md. Abdul appellate court did not exceed its } Wahhab Miah, J. VS jurisdiction in taking opinion of the hand Mrs. Nazmun Ara } Mostafizur writing expert.

Sultana, J. Rahman and The finding of the High Court Division that Mr. Justice Syed others.

Mahmud Hossain } ....Respondents defendant No.1 did not challenge the genuineness of his signature on the Mr. Justice Md. } ‘bainapatra’ in the trial Court is wrong as Shamsul Huda, J. defendant No.1 in his written statement Judgment stated in no uncertain terms that he did not } 13th June, 2012. sign the ‘bainapatra’ and that his signature was forged in the bainapatra. Such being the state of affairs, the onus shifted on the Evidence Act (I of 1872) plaintiff to show that defendant No.1, in Sections 45 and 137 From the cross-examination of the fact, signed the bainapatra by obtaining the handwriting expert, it appears that the opinion of the handwriting expert. The High plaintiff did not at all challenge the opinion Court Division took serious exception to the of the handwriting expert. The plaintiff appellate Court’s decision of obtaining asked some questions to the handwriting opinion of the handwriting expert. It must expert without confronting her about the be borne in mind that appeal is the veracity of her opinion. Therefore, it continuation of the suit and the appellate appears that the plaintiff could not shake Court has similar power like that of the trial the credibility of the opinion of the Court and the appellate Court in appropriate cases can obtain additional handwriting expert. …(18) evidence to come to a correct decision. By Code of Civil Procedure (V of 1908) taking opinion of the handwriting expert, Order XLI, rule 27 the appellate Court did not exceed its Evidence Act (I of 1872) jurisdiction. ….(20) Sections 45 and 101 When the defendant No.1 in his written Code of Civil Procedure (V of 1908) statement stated that he did not sign the Order XLI, rule 31 bainapatra and as such signature was The appellate court came to a definite forged as a result of which the onus was finding that the plaintiff could not prove the shifted upon the plaintiff to prove that alleged contract but the High Court Division without revering such finding illegally made the rule absolute. ...(21)

CIVIL APPEAL NO. 283 OF 2010 with CIVIL PETITION FOR LEAVE TO APPEAL NO. 73 OF 2012.

(Arising out of Civil Revision No. 2910 of 2009 and Civil Revision No. 2385 of 2011)

I LNJ AD (2012)

A. K. Azad and another Vs. Mostafizur Rahman and others. (Syed Mahmud Hossain, J.)

Mr. Abdul Wadud Bhuiyan, Senior Advocate, instructed Mrs. Sufia Khatun, Advocate-onRecord. ......For the Appellants.

Mr. Harendra Nath Nandi, Advocate, instructed by Mrs. Sufia Khatun, Advocate-onRecord. ....For the Petitioners Mr. Mahbubey Alam, Senior Advocate, instructed by Mr. Zainul Abedin, Advocate-onRecord. ‌For Respondent No.1 Not represented.

....Respondent Nos. 2-3.

Not represented.

‌For the Respondents Judgment

Syed Mahmud Hossain, J:

This appeal by leave by the appellants is from the judgment and order dated 10.11.2009 passed by the High Court Division in Civil Revision No. 2910 of 2009 making the Rule absolute setting aside those dated 04.08.2009 passed by the learned Additional District Judge, Second Court, Dhaka in Title Appeal No.370 of 2003 allowing the appeal and reversing those dated 09.08.2003 passed by the Senior Assistant Judge, Sixth Court, Dhaka in Title Suit No.195 of 2002 decreeing the suit.

2. The facts leading to the filing of this appeal, in short, are as follows: The petitioners as the plaintiffs filed Title Suit No.195 of 2002 in Sixth Court of Senior Assistant Judge, Dhaka for specific performance of contract, for executing a deed of sale and for recovery of khas possession against the defendants.

125

3. On 03.03.2002, defendant No.1 executed a bainapatra in favour of the plaintiff on receipt of Tk. 50,000/- out of the total consideration of Tk. 60,000/- for selling the land appended in the schedule to the plaint. On the date of bainapatra it was stipulated that the plaintiff would give the balance amount of Tk. 10,000/- within three months and that defendant No.1 would execute and register deed of sale in favour of the plaintiff. Defendant No.1 did not take the balance consideration money and at last on 25.07.2002 denied taking the balance consideration money. He also denied executing the deed of sale in presence of the witnesses. Hence the plaintiff filed the suit.

4. Defendant No.1 contested the suit by filing written statement denying the material statements made in the plaint. His case, in short, is that the suit is bad for defect of parties and barred by law of limitation. The bainapatra dated 03.03.2002 is forged and is created by the plaintiff.

Defendant No.1 did not take any money from the plaintiff. The case is totally false and fabricated. In such view of the matter, the suit is liable to be dismissed.

5. The trial Court decreed the suit by judgment and order dated 09.08.2003.

6. Against the judgment and decree of the trial Court, defendant Nos.1 and 2 preferred Title Appeal No. 370 of 2003 before the District Judge, Dhaka. On transfer, the appeal was heard by the learned Additional District Judge, Second Court, Dhaka, who by the judgment and order dated 04.08.2009 allowed the appeal

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A. K. Azad and another Vs. Mostafizur Rahman and others. (Syed Mahmud Hossain, J.)

reversing the judgment and decree passed by the trial Court.

7. Against the judgment and decree passed by the appellate Court, the plaintiff filed a revisional application before the High Court Division and obtained Rule in Civil Revision No. 2910 of 2009. The High Court Division made the Rule absolute by the judgment and order dated 10.11.2009.

8. Feeling aggrieved by and dissatisfied with judgment and order dated 10.11.2009 passed by the High Court Division, the defendants moved this Division by filing Civil Petition for Leave to Appeal No. 2505 of 2009 in which leave was granted on 04.07.2010 resulting in the initiation of Civil Appeal No. 283 of 2010.

9. Mr. Abdul Wadud Bhuiyan, learned Senior Advocate, appearing on behalf of the appellants, submits that the High Court Division committed illegality in holding that there is no scope for obtaining the opinion of the handwriting expert at the appellate stage although appeal is the continuation of the suit and that defendant No.1 rightly prayed for additional evidence at the appellate stage and as such, the impugned judgment should be set aside. He further submits that the High Court Division came to the finding that defendant No.1 did not raise the question of genuineness of his signature on the ‘bainapatra’ at the trial and that no such issue was framed in the trial Court to that effect although defendant No.1 in his written statement in an unequivocal terms stated that his signature appearing on the ‘bainapatra’ was forged

I LNJ AD (2012)

and as such, the impugned judgment should be set aside. He then submits that the P.Ws. could not prove execution and passing of consideration money and in such state of affairs, a suit for specific performance of contract could not be decreed.

10. Mr. Mahbubey Alam, learned Senior Advocate appearing on behalf of respondent No.1, on the other hand, submits that the trial Court compared the signature of defendant No.1 appearing on the ‘bainapatra’ with his admitted signature according to the provision of section 73 of the Evidence Act and there was no scope for obtaining opinion of the handwriting expert at the appellate stage and as such, no interference is called for by this Division. He further submits that the grounds on which leave has been granted had already been addressed by the High Court Division and as such, the impugned judgment should not be set aside.

11. We have considered the impugned judgment, the submissions of the learned Advocates and the papers incorporated in the paper book.

12. Before addressing the submissions of the learned Advocates, it is necessary to quote the submissions on which leave was granted as under: I.

The trial Court by order No.11 dated 23.03.2003 noticed about filing of an application by the defendant for expert opinion in respect of the signatures appearing in the ‘bainapatra’ and also directed the plaintiff to submit the disputed ‘bainapatra’ to the Court and the

I LNJ AD (2012)

A. K. Azad and another Vs. Mostafizur Rahman and others. (Syed Mahmud Hossain, J.)

‘bainapatra’ was filed on 31.03.2003 but the Court did not pass any order for examination of the signatures by an expert and without ascertaining the genuineness of the signature observed that the ‘bainapatra’ is genuine and in the face of such facts, the findings by the High Court Division that the defendant raised no question about the genuineness of the signature of the ‘bainapartra’ in the trial Court and raised the same for the first time before the Court of appeal below is misconceived, baseless and perverse.

II. The Court of appeal below found that the expert’s opinion obtained with modern scientific instrument disclosed that the signature of the defendant in the ‘bainapatra’ is false and forged and on the other hand, the P. Ws. could not prove that the defendant signed the ‘bainaparta’ nor could prove payment of the amount consideration to the defendant and with the findings the Court of appeal below reversed the finding of the trial Court and the High Court Division failed to show that these findings are perverse, baseless and illegal and therefore, the findings of the Court of appeal below being the findings of fact, these findings are binding upon the High Court Division.

13. It appears that by Order No.11 dated 23.03.2003 the trial Court noticed about filing of an application by defendant No.1 for expert’s opinion in respect of the

127

signatures appearing on the ‘bainapatra’ and directed the plaintiff to submit the disputed ‘bainapatra’ to the Court and the ‘bianapatra’ was filed on 31.03.2003. But the trial Court did not pass any order for examination of the signatures by an expert and without ascertaining the genuineness of the signatures observed that the disputed ‘bainapatra’ was genuine.

14. During pendency of the appeal, the defendant-appellant filed an application on 16.05.2004 praying for obtaining the opinion of handwriting expert to ascertain the genuineness of his signature appearing on the bainapatra dated 30.03.2002 with some of his admitted signatures. The said application was allowed. On 06.11.2004, the appellate Court received the opinion of the handwriting expert by a memo dated 05.10.2004. The order allowing the prayer for obtaining opinion of the handwriting expert was challenged before both the Divisions of this Court and was upheld.

Because of the order of stay passed at different stages, the handwriting expert could not complete her deposition before the Court. On 11.06.2009, the hand writing expert completed her deposition.

15. Having considered the opinion of the handwriting expert and the evidence of the P.Ws., the appellate Court came to a finding that the signature of defendant No.1 appearing on the ‘bainapatra’ was not genuine and that the plaintiff could not prove the bainapatra.

16. Mr. Abdul Wadud Bhuiyan, learned Advocate appearing on behalf of the appellants read out the depositions of

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A. K. Azad and another Vs. Mostafizur Rahman and others. (Syed Mahmud Hossain, J.)

the P.Ws. From the evidence of P.Ws.1, 2, 3 and 4, it appears that they did not state anything about execution of the ‘bainapatra’ by defendant No.1 in their evidence.

17. What is important to note here is that execution consists in signing a document read out and understood and does not consist of merely signing a name upon a blank sheet of paper. To be executed a document must be in existence.

18. From the cross-examination of the handwriting expert, it appears that the plaintiff did not at all challenge the opinion of the handwriting expert. The plaintiff asked some questions to the handwriting expert without confronting her about the veracity of her opinion. Therefore, it appears that the plaintiff could not shake the credibility of the opinion of the handwriting expert.

19. Mr. Abdul Wadud Bhuiyan, learned Advocate has drawn our attention to the fact that before filing of the suit for specific performance of contract, defendant No.1 filed a miscellaneous case for preemption against the plaintiff. He, therefore, submits that in view of the strained relationship between the parties, the question of entering into a contract by defendant No.1 with the plaintiff did not arise. This submission of the learned Advocate can not be brushed aside.

20. The finding of the High Court Division that defendant No.1 did not challenge the genuineness of his signature on the ‘bainapatra’ in the trial Court is wrong as defendant No.1 in his written statement stated in no uncertain terms that

I LNJ AD (2012)

he did not sign the ‘bainapatra’ and that his signature was forged in the bainapatra.

Such being the state of affairs, the onus shifted on the plaintiff to show that defendant No.1, in fact, signed the bainapatra by obtaining the opinion of the handwriting expert. The High Court Division took serious exception to the appellate Court’s decision of obtaining opinion of the handwriting expert. It must be borne in mind that appeal is the continuation of the suit and the appellate Court has similar power like that of the trial Court and the appellate Court in appropriate cases can obtain additional evidence to come to a correct decision. By taking opinion of the handwriting expert, the appellate Court did not exceed its jurisdiction.

21. The appellate Court being the final Court of fact came to a definite finding that the plaintiff could not prove the alleged contract and the High Court Division without reversing the findings of the appellate Court with reference to the evidence on record made the Rule absolute setting aside the judgment and decree of the appellate Court.

22. In the light of the findings made before, we find that the impugned judgment and order passed by the High Court Division can not sustain in law.

23. Accordingly, the appeal is allowed without any order as to costs.

Civil Petition for Leave to Appeal No.73 of 2012 arising out of an order rejecting the application for rejection of plaint has become infructuous as the appeal is allowed. Therefore, the civil petition is dismissed as being infructuous.

Ed.

I LNJ (2012)

PHP Float Glass Ind. Ltd. Vs. Comm. of Customs Chittagong and ors. (Md. Akram Hossain Chowdhury, J. )

HIGH COURT DIVISION (Special Original Jurisdiction) Mr. Syed Refat Ahmed, J. And Mr. Md. Akram Hossan Chowdhury, J.

Judgment 30.05.2012

} PHP

625

the Act, the respondent No.3, being a subordinate officer to the Board, cannot consider himself to be possessed of any further residual authority in law equipping him in any manner to legally pass such kind of order like the impugned order dated 18.3.2007 whatsoever. Where the National Board of Revenue itself has no such power in a pending appeal it would be highly presumptuous of the respondent No. 3 to suppose himself to be somehow the repository of such power.

Float glass Industries Ltd. } ...Petitioner.

Vs. } Commissioner of } Customs, Excise and VAT } commissionerate, CGO Building No. 1, Agrabad, Chittagong Chittagong Cement Clinker Grinding Co. Ltd. and others. ...Respondents. Vs. Chairman, Board of Revenue and others,

Constitution of Bangladesh, 1972 Article 102(2) (a) (i) and (ii) Value Added Tax Act (XXII of 1991) Section 42 (1) (4) Value Added Tax Rules, 1991 Rule 3 (7) When the appeal was registered and admitted for hearing, the order in question which is impugned in the appeal has been automatically stayed. In the instant case since the appeal has registered and is awaiting for hearing, the respondent No.3 curiously adjusted the amount in the current register of the petitioner as evident from the impugned order dated 18.03.2007. The said decision of the respondent No. 3 is indeed unlawful in a sub judice matter and is, therefore, liable to be quashed. In such circumstances the purported decision taken by the respondent No. 3 is very much unlawful, without jurisdiction and to be declared as void and a nullity in law.

Value Added Tax Act (XXII of 1991) Sections 42 (1) and 43 (1) (3) When an appeal under section 42(1) is pending before the Tribunal the Board’s functions as provided by section 43(1) is clearly to be stayed under section 43(3) of Writ Petition No. 3063 of 2007.

60 DLR 287, Commissioner of Custom, Excise and VAT Vs. Commissioner of Customs, Excise and VAT, 8 BLC 329 and M.A. Hai Md. Wajed Ali Miah and Md. Moslem Vs. Trading Corporation Bangladesh, 40 DLR (AD) 206 ref.

Mr. M. A. Hannan --For the petitioner.

Ms. Israt Jahan, A.A.G ---For the Respondents Judgment Md. Akram Hossain Chowdhury, J: On an application under article 102 of the constitution this rule nisi was issued calling upon the respondents to show cause as to why the impugned order dated 18.3.2007 passed by the Respondent No. 3 demanding Tk. 87,14,891.68 as VAT alleging to be less paid during the period of 21.9.2006 to 28.02.2007 and adjusting the said amount by deduction in the current account register and stopping the supply of the goods till having positive balance in the said register (Annexure-G) should not be declared to have been done without lawful authority and is of no legal effect and/or such other or further order of orders passed as to this Court may seem fit and proper.

626

PHP Float Glass Ind. Ltd. Vs. Comm. of Customs Chittagong and ors. (Md. Akram Hossain Chowdhury, J. )

2. The facts in the writ petition in short are that the petitioner, a Private Limited Company represented by its Managing Director, established a factory for manufacturing Float Glass by using silica sand, the main raw material, as available in the country. The petitioner company being a VAT registered entity, as per the requirement of rule 3(1) of the Value Added Tax Rules-1991, (Rules) submitted a price declaration of its product vide Mushak-I for payment of VAT to the concerned Divisional Officer, respondent No.2, the Assistant Commissioner, Customs Excise and VAT Division, Feni, who by his order dated 13.08.2005 arbitrarily altered the petitioners declared value by purportedly enhancing the said price of float Glass at Tk. 17885/- to Tk. 23500/- per metric ton.

3. Feeling aggrieved by the said order of respondent No.2 the petitioner filed a review application on 28.08.2005, invoking the provision of Rule 3(7), before the respondent No. 1, Commissioner, Custom, Excise and VAT Commission-rate, Agrabad, Chittagong.

On hearing the said review application the respondent No. 1 passed an order fixing the price of Float Glass at Tk. 21,000/- per Metric Ton and the same was communicated to the petitioner vide Nathi No. 4bÑ/H(12)320/j§pL/ ¢f HCQ¢f/NÔ¡p/03/8424-26 dated 03.9.2005.

Accepting the said approved price the petitioner continued its business sincerely.

4. In the meantime the price of the raw material being reduced to a considerable amount for which the petitioner submitted a fresh price declaration on 21.9.2006 as per Musak-I and the respondent No. 2 again gave an arbitrary order of approval and altered the said price declaration purportedly enhancing the value of each item vide Nathi No. 4bÑ/H (12)24/j§pL/¢fHCQ¢f/−gÓ¡VNÔ¡p/06/3074 dated 08.10.2006.

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5. Against such backdrop the petitioner filed a review application before the Respondent No. 1, Commissioner of Customs, Excise and VAT Commissionrate, Agrabad, Chittagong, on 22.10.2006 and submitted a written statement in support of his price declaration along with all relevant documents on 09.11.2006. The respondent No. 1 upon perusal of the same passed an order on 15.11.2006 under Rule 3(7) of the Rules, fixing the value of Transparent glass at the rate of Tk. 20,500/- and coloured glass at Tk. 25,000/- per Metric Ton and the said order was communicated to the petitioner vide Nathi No. 4bÑ/H(12)320/j§pL/ ¢fHCQ¢f/NÔ¡p /05/5629-31 dated 15.11.2006.

6. Being aggrieved by and dissatisfied with the said order dated 15.11.2006 the petitioner preferred an appeal on 03.12.2006 before the respondent No. 5, the Customs, Excise and VAT Appellate Tribunal, under section 42 of the VAT Act-1991 (Act). The said appeal was registered as Appeal No. CEVT/Case (VAT) 234/2006 which is pending for hearing.

7. It is alleged that during pendency of the said appeal all on a sudden on 18.03.2007, the respondent No. 3, Superintendent, Custom, Excise and VAT Sitakunda Circle, Chittagong, most illegally and arbitrarily passed the impugned order in the current register of the petitioner demanding Tk. 87, 14, 891.68 allegedly less paid VAT during the period of 21.9.2006 to 28.02.2007 and adjusted the same by deducting in the current account register and stopped the supply of goods till having positive balance in the said register. Hence the petitioner, finding no other alternative and efficacious remedy against the aforesaid mala fide action of the respondent No.3, was compelled to file this writ petition and obtained the instant rule.

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PHP Float Glass Ind. Ltd. Vs. Comm. of Customs Chittagong and ors. (Md. Akram Hossain Chowdhury, J. )

627

8. No one for the respondents came forward to oppose the rule by filing any affidavit in opposition.

Excise and VAT –Vs- Customs Excise and VAT Appellate Tribunal and others, reported in 8 BLC(2003)-329.

9. Mr. M. A. Hannan, the learned Advocate appearing on behalf of the petitioner submits that the respondent No. 3 most arbitrarily and illegally issued the impugned order without serving any notice under Section 55(1) of the Act leaving the petitioner without any opportunity to defend his case. Therefore, violating the principle of natural justice the respondent No. 3 issued the impugned order which is to be declared without lawful authority. Mr. Hannan, further submits that the appeal under section 42(1) of the Act was filed by the petitioner against the enhanced price approval order of commissioner, from which the present issue of VAT evasion and demand arose. The said appeal is still pending for disposal before the respondent No. 5, though there is specific provision of nine months time limit for disposal the appeal under Section42(4) of the Act. But during pendency of the said appeal the impugned order of demand and adjustment thereto in the current account register of the petitioner was made purportedly with a mala fide intention. The petitioner informed the respondent No. 3 that the order was passed over an issue as in part and parcel to the said appeal and also constitutes a Sub judice matter. That notwithstanding the respondent No. 3 without considering such aspect and not applying its judicial mind issued the impugned order which the petitioner submits is now liable to be set aside and to be declared illegal and without any lawful authority. The learned Advocate for the petitioner in support of his submissions cited the decisions in Chittagong Cement Clinker Grinding Co. Ltd. –Vs- Chairman National Board of Revenue and others, reported in 60DLR-287, and Commissioner of Customs,

10. Referring to the Chittagong Cement Clinker case, reported in 60 DLR, Mr. Hannan submits that in the said Judgment there lordships observation was that “When the law does not put any embargo in fixation of the price by a manufacturer of its goods no rules or decision of the VAT authority can impose any such flat or minimum value for such goods in the country, adversely affecting the interest of such manufacturer”. Accordingly, Mr. Hannan argues that the respondent No.1, the Commissioner, without considering such legal prescription, the rationale of the law and the base value of similar products as were in particular before him by glaring failure of proper adjudication of law passed the order apparently beyond the stipulated period of 15 days as provided by rule-3(7) under the Rules.

Mr. Hannan argues, therefore, that the adjudication order itself is illegal and void.

11. The learned Advocate for the petitioner in course of hearing drew our attention to the fact that the appeal is still pending before the Tribunal for disposal. In fact, there is a provision for disposal of appeal stipulating the period of 9 months, failing which the appeal is deemed to be allowed as per provision of Section 42(4) of the Act. Though no steps have yet been taken for a due disposal of the appeal, in the meantime the stipulated period has long since expired. In such circumstances he submits, that given there is no order of this Court staying the appeal proceedings, therefore, the appeal pending before the Tribunal is deemed to have been allowed due to expiration of 9 months stipulated period in disposal of the appeal as per provision of Section 42(4) of the Act.

628

PHP Float Glass Ind. Ltd. Vs. Comm. of Customs Chittagong and ors. (Md. Akram Hossain Chowdhury, J. )

12. At this stage, on our query, the learned Advocate for the petitioner by filing a supplementary affidavit brought into our notice that since the instant writ petition is pending, the tribunal is awaiting further order(s) of this Court before proceeding any further with the appeal hearing.

13. In respect of the impugned order passed by the respondent No.3, demanding the less paid amount of VAT and deduction of the amount in the current register even, when an appeal is pending on the same issue, Mr. Hannan relied upon the case of Commissioner of Customs -Vs- Appellate Tribunal reported in 8BLC(2003),329 wherein it was noted in a similar situation that when an appeal is filed under Section 42 of the Act the order appealed against is deemed automatically to be stayed.

This is because purely as an administrative measure that order is automatically stayed by the department concerned and no steps are, therefore, taken to implement the same during the pendency of the appeal before the appellate forum. This, therefore, necessarily obviates the need for this Court to pass an ad interim order staying the operation of the impugned order. So far so good. Since the appeal is pending on a demand of VAT assessed upon relying on an order of the respondent No.1, Commissioner, which is under consideration as the subject matter of the appeal, the respondent No. 3 being a subordinate authority could not pass the impugned order in a sub judice matter.

In such circumstances, Mr. Hannan submits that the order passed by the respondent No. 3 is to be declared without lawful authority and is of no legal effect.

14. Ms. Israt Jahan, the learned Assistant Attorney General (A.A.G) though conceding the facts of the case as assured by the petitioner, raises the question whether the petitioner can invoke the writ jurisdiction when

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an alternative remedy lies against the same under Sub Rule 7 of Rule 3 of the Rules. In reply Mr. Hannan has referred to a judgment reported in 40 DLR(AD)-206 in the case of M.A. Hai, Md. Wazed Ali Miah & Md. Moslem –Vs- Trading Corporation of Bangladesh. Mr. Hannan submits by reference to that judgment that where an interpretation of law or a question of law is involved, such a situation requires for a decision by way of invoking writ jurisdiction. This Court in wholly subscribing to that view reflected in the above decision, finds that the instant writ petition is very much maintainable.

15. Heard the learned Advocates for both side at length and perused the writ petition along with the Annexures. The document in Annexure-D series to the writ petition are the price declaration along with Musak-1 Form filed under rule 3, sub rule 2 of the Rules explaining particularly that the price of the manufacturing materials being reduced and the price declaration of the similar items of M/s.

Nasir Glass Industries being accepted by the VAT authority at a lower rate, the petitioner’s price declaration is to be accepted. Upon receipt of the petitioner’s said price declaration, the respondent No. 2 vide its order (Annexure-D1) dated 08.10.2006 re-fixed the price of the petitioner’s Float Glass and Coloured Glass at a higher rate as compared to M/s. Nasir Glass Industries.

16. Feeling aggrieved by the said order of respondent No.2 dated 08.10.2006 the petitioner filed a review petition vide annexureE before the respondent No.1, Commissioner of Customs, Excise and VAT Commissionrate, for a reconsideration of the matter. The review application was filed on 22.10.2006 and the respondent No. 1 by its order dated 15.11.2006 re-fixed the price of the base value of Transparent Float Glass at the rate of Tk. 20,500/- and coloured Glass at TK. 25000/- per

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PHP Float Glass Ind. Ltd. Vs. Comm. of Customs Chittagong and ors. (Md. Akram Hossain Chowdhury, J. )

Metric ton. The said order was passed under sub Rule 7 of Rule 3 of the Rules. It is noted that the proviso of sub rule 7 of Rule-3 provides that the Commissioner, upon receiving the application, fails to make a decision within 15 days the application shall be deemed to have been allowed. That order passed by the respondent No.1, seems to have been made beyond such stipulated time.

17. Being aggrieved by and dissatisfied with the said order of the respondent No.1 the petitioner preferred an appeal, under section 42 (i)(Kha) of the Act, before the Customs, Excise and VAT Appellate Tribunal, Dhaka, who upon receipt of the same registered it as Appeal No. CEVT/ Case (VAT) 234/ 2006. The said appeal was filed on 03.12.2006 and admittedly the appeal is still pending for disposal. But all on a sudden on 18.3.2007 the respondent No. 3, Superintendent, Customs, Excise and VAT, Sitakunda Circle, Chittagong, issued the impugned order (annexure-G) on 18.03.2007 thus:

18.3.2007 fË¢aù¡e La«Ñfr 21.9.2006 Cw a¡¢l−M a¡−cl Evf¡¢ca feÉ üµR J l¢Pe ®gÓ¡V NÔ¡p p£V Hl j§mÉ ®O¡oe¡ c¡¢Mm L−lez pqL¡l£ L¢jne¡l, L¡øjp H„¡CS J iÉ¡V, ®ge£ ¢hi¡N, ®ge£ Hl fœ e¢b ew- 4bÑ/H(12)j§pL/¢fHCQ¢f ®gÓ¡V NÔ¡p/06/ 3074 a¡w 08/10/2006 Hl j¡dÉ−j Ae¤−j¡¢ca j§−mÉ fË¢aù¡e La«Ñfr p¿¹ø e¡ q−u L¢jne¡l L¡øjpÚ H„¡CS J iÉ¡V Q–NË¡−jl Hl hl¡h−l B¢fm B−hce c¡−ul Ll¡u L¢jne¡l j−q¡cu a¡l B−cn fªù¡´Me e¢b ew- 4bÑ/H(12) 320 j§pL/¢fHCQ¢f ®gÓ¡V NÔ¡p/05/5629-31 a¡w 15/11/2006 Hl j¡dÉ−j fË¢a ®jx Vx üµR NÔ¡p Hl j§mÉ =20,500/- (¢hn q¡S¡l f¡yQna) V¡L¡ J fË¢a ®jx Vx l¢‰e NÔ¡−pl j§mÉ 25,000/-(fy¢Qn q¡S¡l) V¡L¡ ¢edÑ¡lZ L−l ®cez ¢L¿º a¡l¡ Ae¤−j¡¢ca j§mÉ A−fr¡ Lj j§−mÉ feÉ plhl¡q Ll¡u 28.02.2007Cw a¡¢lM fkÑ¿¹ pj−u fË¢aù¡e

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La«Ñfr ®j¡V =87,14,891.68 V¡L¡ j§pL Lj f¢l−n¡d Ll¡u EJ² V¡L¡ fË−cu Lm¡−j H¢¾VÊ ¢c−u pjeÄu Ll¡ q−m¡ Hhw L¢jn¡l j−q¡c−ul Ae¤−j¡¢ca j§−mÉ feÉ plhl¡q Ll¡l Ae¤−l¡d Ll¡ q−m¡z EJ² V¡L¡ pjeÄ−ul f¢l−fË¢r−a Qm¢a ¢qp¡−h GZ¡aÄL ¢Øq¢a qJu¡u fk¡Ñç V¡L¡ ®VÊS¡l£ Q¡m¡−el j¡d¡−j Sj¡ ¢c−u feÉ plhl¡−ql Ae¤−l¡d Ll¡ q−m¡z ü¡rl AØfø Hj Bl e¡Cj p¤f¡¢le−Ve−X¾V L¡øjpÚ H„¡CS J iÉ¡V p£a¡L¤ä p¡−LÑm, Q–NË¡j p¡−LÑm, Q–NË¡jz The aforesaid order of respondent No.3, was passed in apparent disregard of the fact of the appeal already filed.

18. In view of the above facts, since the appeal is pending before the Appellate Tribunal and the proceedings of the appeal was not challenged the said proceedings of appeal has not been stayed by this writ petition. In fact, the order passed by the respondent No.3 was impugned in this writ petition. Now it is to be decided whether the order as impugned was passed lawfully or not.

19. Notably, here in deciding the instant case firstly we may examine the decision referred by the learned Advocate for the petitioner, the case of “Chittagong Cement Clinker =VS= NBR” reported in 60 DLR-287, the ratio in which was that- “Sub-section(2) of Section-5 entitles a producer or manufacturer to sell its goods at a price/consideration which he declares and neither the National Board of Revenue nor the Government is empowered any provision of the vat Act in any way to fix any flat or minimum value for any goods.”

Furthermore, as already noted earlier, in deciding the case their Lordships also aptly held therefore“When the law does not put any embargo in fixation of the price by a manufacturer of its goods no rules or

630

PHP Float Glass Ind. Ltd. Vs. Comm. of Customs Chittagong and ors. (Md. Akram Hossain Chowdhury, J. )

decision of the VAT authority can impose any such flat or minimum value for such goods in the country, adversely affecting the interest of such manufacturer” 20. Relying on the above Judicial view Mr. Hannan’s submission is that as per requirement of the law the process for approval of declaration of base value upon a consideration of the detailed breakdown of cost provided by the petitioner in Musak-1 Form, as in the present instance, obviates the necessity of the respondents to revisit the same, let alone reject such value declaration, that too, without considering the petitioner’s objections at the time of re-fixing such value.

21. The same view also been reiterated by this Court in a judgment passed in writ petition No. 10540 of 2006, the case of “Aman Cement Mills Limited –Vs- Customs Excise and VAT Appellate Tribunal, Dhaka and others”. In the above decisions it is mostly decided that the manufacturer is entitled at his consideration to fix a base value and the authority concerned has to approve the said price without affecting the interest of the manufacturer.

22. In the instant case we could not overlook whether the respondent No. 1 has considered this aspect in deciding the review application.

The order of the respondent No. 1 has been challenged by filing an appeal before the Tribunal, which is still pending for disposal. It is incumbent upon the Tribunal to conclusively decide the matter upon a due and fair determination of the issues raised in appeal upon the petitioner being heard. During pendency of the appeal the respondent No. 3, Superintendent, Customs, Excise & Vat, Sitakunda Circle, Chittagong, overwhelmingly going beyond its jurisdiction passed the impugned order on a sub judice matter,

I LNJ (2012)

demanding the amount as less paid VAT and deducted the same in his own way to the current account register of the petitioner and stopped the supply of the petitioner’s goods till having positive balance in the said register. The legality of the said order in these facts is found to be untenable by this Court. This Court has had regard to the case of Commissioner of Customs, Excise and VAT –Vs- Customs, Excise and VAT Appellate Tribunal and others, reported in 8BLC-329, where in a similar situation their Lordships in deciding on a dispute whether the Tribunal can pass an ad interim order of stay in an appeal filed before the Tribunal and awaiting for disposal requested Mr. Hasan Ariff, the then Attorney General and Mr. Mahmudul Islam, the former Attorney General as amici curiae to address the matter. Mr. Hasan Ariff in his submission categorically stated “on perusal of the provision as contained in section 42(2) of the VAT Act it is clear and obvious that as soon as an appeal is filed the impugned order is automatically stayed.”

23. Mr. Mahmudul Islam in his submission pointed out that- “as an administrative measure department concerned automatically stays the order appealed against and does not take any step to implement the same during the pendency of the appeal before Appellate forum and therefore, there is no necessity of passing an ad-interim order for staying the operation of the impugned order” 24. In the said case their Lordships observed accordingly “In interpreting Sub-section(2) of Section 42 all the learned Advocates agreed that on filing of the appeal with the necessary deposit of a portion of the disputed amount, the impugned order is automatically stayed and there is no scope for the VAT officials to

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PHP Float Glass Ind. Ltd. Vs. Comm. of Customs Chittagong and ors. (Md. Akram Hossain Chowdhury, J. )

press for the payment of the disputed amount during the pendency of the appeal.”

And at the end of the day their Lordships held“Inasmuch as the appeal is admitted, the impugned order is automatically stayed.”

Upon a perusal of the above decisions of this Court, it is now held that when the appeal was registered and admitted for hearing, the order in question which is impugned in the appeal has been automatically stayed. In the instant case since the appeal has registered and is awaiting for hearing, the respondent No.3 curiously adjusted the amount in the current register of the petitioner as evident from the impugned order dated 18.03.2007 (AnnexureG). The said decision of the respondent No. 3 is indeed unlawful in a sub judice matter and is, therefore, liable to be quashed. In such circumstances the purported decision taken by the respondent No. 3 is very much unlawful, without jurisdiction and to be declared as void and a nullity in law.

25. Moreover section 43 of the Act empowers the National Board of Revenue to call for record and to examine the same and arrive at its decision on a given matter. For proper appreciation of law, reproduced herein below is the said section 43:

“43 (1) −h¡XÑ üaxfÐhªš qCu¡ HC BC−el Ad£e ®L¡e L¡kÑd¡l¡l e¢bfœ Eq¡−a ®h¡−XÑl AdxÙ¹e ®L¡e j§mÉ pwk¡Se LjÑLaÑ¡ LaѪL fÐcš B−cn h¡ ¢pÜ¡−¿¹l °hda¡ h¡ eÉ¡kÉa¡ pÇf−LÑ p¿ºø qJu¡l E−Ÿ−nÉ amh J fl£r¡ L¢l−a f¡¢l−h Hhw Eq¡ avpÇf−LÑ ®kCl©f ¢h−hQe¡ L−l ®pCl©f B−cnc¡e L¢l−a f¡¢l−hzÓ Significantly, however, Sub-section 3 of said Section 43 places limits on the Board’s power and prohibits the initiation of any action as otherwise sanctioned under sub-section above

631

when an appeal under section 42(1) of the Act is pending and until disposal of the said appeal.

Sub-section 3 of Section 43 runs as follows-

“43 (3) −k ®r−œ d¡l¡ 42 Hl Efd¡l¡-(1) Hl Ad£e ®L¡e A¡f£m ¢h−hQe¡d£e l¢qu¡−R ®p ®r−œ Eš² Bf£m ¢eÖf¢š e¡ qJu¡ fkÑ¿¹ Efd¡l¡ (1) Hl Ad£e ®L¡e L¡kÑÉd¡l¡ öl¦ Ll¡ k¡C−he¡z” 26. In view of the above provisions of law, when an appeal under section 42(1) is pending before the Tribunal the Board’s functions as provided by section 43(1) is clearly to be stayed under section 43(3) of the Act, the respondent No.3, being a subordinate officer to the Board, cannot consider himself to be possessed of any further residual authority in law equipping him in any manner to legally pass such kind of order like the impugned order dated 18.3.2007 whatsoever. Where the National Board of Revenue itself has no such power in a pending appeal it would be highly presumptuous of the respondent No. 3 to suppose himself to be somehow the repository of such power. This Court’s reading of the act finds no legal basis for such assumption of authority by the respondent No. 3. In such view of the fact, we have no hesitation to hold that the respondent No.3 went beyond his jurisdiction and passed the impugned order which has no legal force and is to be declared to be without any lawful authority and as having no legal effect.

27. Since the appeal is pending before the Customs, Excise & VAT Appellate Tribunal and could not proceed due to the filing of this writ petition as is evident from a statements to that effect accorded in the petitioner’s Supplementary Affidavit, even though there is no order of stay in respect of the appeal pending before the Tribunal, we are now inclined to direct the respondent No.5, Appellate Tribunal to dispose of the appeal

632

Md. Yusuf others ofVs. Shahabuddin Shaikh and(Md. others, (Shahidul J. ) J. ) PHP Float Glass Shaikh Ind. Ltd.and Vs. Comm.

Customs Chittagong and ors.

Akram Hossain Islam, Chowdhury,

within a certain period, keeping in mind the observations as stated above.

28. On the issue of maintainability of this writ petition as raised by the Learned Assistant Attorney General, in light of the questions of the law raised under this Rule and decided upon by this Court as above, this Court subscribes to the principle reflected in the decision reported in 40 DLR(AD)-206, thus “If the writ Jurisdiction is sought to be involved raising purely a question of law or interpretation of statute, availability of an alternative remedy will not stand in the way.”

In view of the above observation it is decided that the instant writ petition is maintainable.

29. In the result, the rule is made absolute without, however, any order as to costs. The impugned order dated 18.03.2007 passed by the respondent No.3 demanding Tk. Tk. 87,14,891.86 as alleging less paid VAT during the period of 21.9.2006 to 28.02.2007, adjusting the said amount by deduction in the current account register of the petitioner and stopping the supply of the goods till having positive balance in the said register (AnnexureG) is declared to be without lawful authority and of no legal effect. The respondent Nos. 1-4 are directed to restore the petitioner’s current account register and refund the said amount of Tk. 87,14,891.86 to the petitioners current register as has been deducted by the impugned order dated 18.3.2007 (Annexure-G), and the Respondent No.5, Appellate Tribunal is also directed to finally dispose of the appeal in accordance with law, keeping in mind the observations made herein above, positively within 60 (Sixty) days from the date of receipt of a certified copy of this judgment and order.

Communicate this judgment and order at once.

Ed.

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HIGH COURT DIVISION (Civil Revisional Jurisdiction) Mr. Shahidul Islam, J.

Judgment 13.02.2012

} Md. Yusuf Shaikh and others ...Petitioners } Vs. Shahabuddin Shaikh } and others ...Opposite Parties. }

}

Specific Relief Act (I of 1877) Section 42 It appears that the plaintiff without having any legal status or character or any right in the suit land sought for declaration of title therein. Although the plaintiff’s deed is registered earlier in the point of time but he purchased 77 decimals of land excluding the suit land. The plaintiff got no locus standi to file the suit. …(19) Mr. Abul Kalam Mainuddin with Mr. Munshi Abdul Hamid --- For the Petitioners.

Mr. Syed Mokaddas Ali --For the Opposite Parties Judgment Mr. Justice Shahidul Islam The Rule was issued calling upon the opposite party Nos. 1 to 14 to show cause as to why the judgment and decree dated 30.04.1985 passed by the learned District Judge, Khulna in Title Appeal No. 195 of 1976 allowing the appeal, reversing the judgment and decree dated 31.08.1976 passed by the learned Munsif, 1st Court Khulna in Title Suit No. 91 of 1973 should not be set aside and / or such other or further order or orders passed as to this Court may seem fit and proper.

Civil Revision No. 3641 of 1991.

594

M/S HMR International Vs. Commissioner of Customs, Jessore and others (Md. Asfaqul Islam, J.)

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of the respondent No.1-3 in withholding the release of the imported goods of the petitioner covered under LC No. 1815-11-01-0091 dated Mr. Md. Ashfaqul } M/S HMR 18.1.2011 and under Bill of Entry No. C 51288 Islam, J. International } dated 03.11.2011 shall not be declared to have ...Petitioner.

And been taken without any lawful authority and is } Vs. of no legal effect.

Mr. Mustafa Zaman } Commissioner of Islam, J. 2. At the time of issuing Rule this Division } Customs, Customs directed the respondent Nos1-3 to release the Judgment House, Benapole, } Jessore and others 22.05.2012 consignment of the petitioner covered under ...Respondents LC No18-15-01-0091 dated 18.-8.2011 and under Bill of Entry No C 512988 dated 03.11.2011 upon assessment of the duties if Constitution of Bangladesh, 1972 there is no restraining order in Title Suit No.27 Article 102 of 2011 within 5 working days from the date When the petitioner is not a party to the suit, it is not understood how the Title Suit positively.

HIGH COURT DIVISION (Special Original Jurisdiction)

and any consequential order emanating from that suit would have any bearing so to unable the customs authority to release the goods. The Customs Authority had certainly indulged in excesses in not releasing the goods for quite a long time when there was a positive direction to release the goods at the time of issuance of Rule. In all fairness the goods should be released by the Customs Authority in favour of the petitioner without any further delay. ...(11) Super Oil Refinery Ltd. Vs. Commissioner of Customs, Chittagong, 30 BLD 149, ref.

Mr. Md. Mamun Aleem, Advocate ---For the petitioner.

Mr. S.M. Moniruzzaman, D.A.G. ---For respondent No. 1.

Mr. Mohammad Mutahar Hossain, Advocate ---For the respondent No. 7.

Judgment Md. Ashfaqul Islam,J: This Rule Nisi was issued calling upon the respondents to show cause as to why action Writ Petition No. 10288 of 2011.

3. The background leading to the Rule, in short, is that the petitioner by opening Letter of Credit imported “Weighing Trust 786” from the Sumo Digital Incorporation of India. On arrival of the goods and on completion of customs formalities the consignment had been examined by the concerned officers of the respondent No.1 and upon physical inspection the goods were found perfect in accordance with invoice, packing list and catalogue and also found the papers submitted therewith to be correct.

4. In office note the customs authority as it could be found from affidavit-in-opposition filed by the respondent No.1 (Annexure-2), in paragraph 22 observed:-

“Aby‡”Q` bs-21 m`q `ª÷e¨| weÁ Kwgkbvi g‡nv`q G wel‡q m`q Av‡jvPbv K‡i‡Qb Ges mvwe©K welq †bv‡U Dc¯’v‡c‡bi m`q Av‡`k w`‡q‡Qb| Aby‡”Q` bs 19 m`q `ª÷e¨| Av‡jvP¨ cb¨Pvjv‡b Avg`vbxK…Z Electric weight scale Gi Brand name “Weighing Trust-786”. c¶vš—‡i cÖwZc¶ †gmvm© †mvfv

G¨Wfv›mW †UK‡bvjwR KZ©c‡¶i Avg`vbxK…Z c‡b¨i Brand name – “Sumo”| wek¦¯— m~‡Î Rvbv †M‡Q G cb¨ Pvjv‡bi Avg`vbxKviK G‡Zvc~‡e© †gmvm© †mvfv G¨Wfv›mW †UK‡bvjwR

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M/S HMR International Vs. Commissioner of Customs, Jessore and others (Md. Asfaqul Islam, J.)

bvgK cÖwZôv‡bi KZ©KZ©viƒ‡c PvKzix Ki‡Zb| cieZ©x‡Z wZwb PvKzix‡Z B‡¯—dv w`‡q Ag`vbx e¨emvq wb‡qvwRZ n‡q‡Qb| G Kvi‡b Zvi c~e©eZ©x KZ©„c¶ Zvi Dci ms¶zä n‡q Av‡jvP¨ cb¨ Avg`vbxi wei“‡× GKvwaK gvgjv i“Ry K‡i‡Qb| Z‡e eZ©gv‡b G cb¨Pvjv‡bi wecix‡Z gvbbxq Av`vj‡Zi †Kvb wb‡lavÁv †bB; hv Rv.ev.†ev XvKvq G `߇ii cÖwZwbwa Rbve KvRx ZvRDwÏb Avn‡g` ARO KZ©„K hvPvB Kiv n‡q‡Q| (L) GgZve¯’vq Aby‡”Q` bs-19 (L) Gi cÖ¯—ve †gvZv‡eK Av‡jvP¨ cb¨ Pvjv‡b cÖ‡hvR¨ ïéKi Av`vq I ïé AvbyôvwbKZv cwicvjb mv‡c‡¶ cb¨ PvjvbwU Qvo †`qv †h‡Z cv‡i|” 5. Meanwhile the respondent No.7 Shova Advanced Technologies Ltd. Malatinagar, Bakshi Bazar Road, Bogra as plaintiff on 26.09.2011 filed Title Suit No.27 of 2011 in the Court of District Judge, Dhaka under the provision of section 24(2) & 96 of the Trade Marks Act, 2009 praying for a decree of permanent injunction restraining the defendant from infringing and imitating the registered design and trade mark of the weighing scale ‘SUMO’ as shown in Schedule-A & B of the plaint. Be it mentioned that the petitioner of the instant Writ Petition is not a party in that suit.

The suit proceeded as usual wherein ad-interim order of injunction was passed by the District Judge which was extended till 27.11.2011.

Since in the ad-interim order of the Rule there was a direction for the goods to be released had there been no order of injunction in Title Suit for No.27 of 2011 i.e. the suit permanent injunction, the customs authority did not release the goods even there was no order of injunction as such.

6. Mr. Md. Mamun Aleem, the learned counsel for the petitioner after placing the petition and the relevant Annexures mainly submits that the withholding of the goods by the respondents is without any lawful authority since the order of injunction in Title Suit No.27 of 2011 has no bearing whatsoever on the issue

595

of the release of the goods. In elaborating his submission, the learned counsel contends that in the said suit the petitioner is not even a party and even if the ultimate decision of the suit renders any bearing whatsoever in the instant case then natural legal consequence would follow. But on that pretext withholding of the goods is absolutely without lawful authority on the part of the respondents. In this connection the learned counsel cites a decision of Super Oil Refinery Ltd. vs. Commissioner of Customs, Customs House, Chittagong and others, 30 BLD 149 where one of us was a party.

7. Mr. Mohammad Mutahar Hossain, the learned counsel for the respondent No.7 Shova Advanced Technologies Limited by filing affidavit-in-opposition opposes the Rule. He submits that the customs authority rightly withheld the goods in question which is absolutely in compliance with the ad-interim order passed by this Division in Writ Petition and further submits that the suit for injunction has direct bearing on the issue for which the respondents are not in a position to release the goods. He has given a detailed and exhaustive elaborations substantiating his argument.

8. Respondent No.1, Commissioner of Customs, Customs House, Benaploe by filing affidavit-in-opposition also opposes the Rule adopting the argument advanced by the respondent No.7.

9. Be that as it may, we have heard the learned counsel of both sides and considered their submissions. The only question that faces this Division is whether under the facts and circumstances of the case the Title Suit No. 27 of 2011 would operate as a bar in not releasing the goods in question.

10. We have already mentioned that the petitioner is not even a party in the suit. In the decision as referred to above almost in a similar situation this Division held :

596

I LNJ (2012)

Dhaka Water Supply Authority Vs. Dr. S. M.ofHossain and others.and (Mohammad J.) M/S HMR International Vs. Commissioner Customs, Jessore others (Md.Anwarul Asfaqul Haque, Islam, J.)

“Since there is no legal obstruction that could possibly disallow the customs authority to settle the long pending dispute regarding the release of the goods in question for the litigation which stood as a bar in so doing does not subsist any more. If in due course Title Suit No. 324 of 2009 has been decided in any manner under the law, the natural legal consequences will follow. But at the moment we think customs authority is in no way faced with any legal bar to settle the dispute in accordance with law.�

11. In that decision the petitioner was a party in the suit but in the case in hand the petitioner is not even a party in the suit. We do not find any earthly reason how the Title Suit and any consequential order emanating from that suit would have any bearing so to unable the customs authority to release the goods and for that reason to withhold the same. This is against rationale. The authority had certainly indulged in excesses in not releasing the goods for quite a long time even when they have been given a positive direction to release the goods.

The petitioner at the height of his tolerance also moved a Petition of Contempt being No.13 of 2012. On the conspectus we are of the view that in all fairness at once this goods should be released by the customs authority in favor of the petitioner without any further delay and on any pretext. We do not find that Title Suit No. 27 of 2011 stands as a bar in so doing.

12. Resultantly, this Rule succeeds.

13. In the result, the Rule is made absolute.

The impugned withholding of the goods is declared to have been done without lawful authority and is of no legal effect. The respondent No.1 is directed to do the needful in the light of the observations as made above and release the goods as early as possible preferable within 1 (one) week on receipt of this order positively.

Communicate at once.

Ed.

HIGH COURT DIVISION (Civil Revisional Jurisdiction) Mr. Mohammad Anwarul Haque, J. And Mr. Kazi Md. Ejarul Haque Akondo, J.

Judgment 16.07.2012

} Dhaka Water Supply and

Sewerage

} Authority (DWASA) }

Dhaka.

...Petitioner.

Vs. Dr. S.M. Hossain and } another ...Respondents} opposite party.

}

} Government } Bangladesh,

of

represented by the } Deputy Commissioner, } Dhaka

}

---AppellantOpposite-party

Code of Civil Procedure (V of 1908) Section 115 (4) Acquisition and Requisition of Immovable Property Ordinance (II of 1982) Sections 10 (2), 28 and 31 In the instant case it is found that the L.A. Case was started in the year 1990-1991 and awardee received the part amount on 6.9.92 and the proviso to section 31 has been incorporated by Act XX of 1994 with effect from 1.12.1994; as such this provision of limitation of awarding amount not beyond 10% has no manner of application in the instant case because the awardee, the present Opposite-party No.1 has already acquired his right which cannot be taken away by subsequent legislation.

The provision of law referred to above and the provision of section 28 read with sections 10(2) and 31 of the Acquisition and Crivil Revision No. 4268 of 2006.

582

Tushar Kanti Bhattacharjee and another Vs. Bijoy Lal Karmakar (M,Enayetur Rahim J.)

I LNJ (2012)

HIGH COURT DIVISION

on remand to the trail court to pass a preliminary decree on the basis of evidence (Civil Appellate Jurisdiction) on the record as per provision of Order XX, Mr. Farid Ahmed, J. } rule 15 of the Code determining the date on Tushar Kanti which the partnership shall stand dissolved And } Bhattacharjee and another and appointing an account knowing person Mr. Enayetur Rahim, J. } ...Appellants. and final decree be passed on the basis of } Judgment Vs. such accounts to be submitted by such 24.08.2010 } Bijoy Lal Karmakar person. …(22-23) ...Respondent. } Md. Abdul Jabbar Sarkar–Vs- Md. Mabud Bux and another 7 PLR Dhaka, Page-23:Gulab Code of Civil Procedure (V of 1908) Thai –Vs- Shibba Mal and another, AIR 1937 Order XX, rule 15 ALL 674 ref.

Although in the Order XX, rule 15 of the Mr. Abdul Wadud Bhuiyan, with Code the language has been used as “may pass a preliminary decree” but if the whole Mr. Shishir Kanti Majumder, Advocates ......For the Appellants. provision of the said law is considered it would be clear that passing a preliminary decree is mandatory before taking account.

Relying on the biased and incomplete and it report the learned judge acted illegally in decreeing the suit and the judgment is beyond the scope of Order XX, rule 15 of the Code and same is without jurisdiction and a nullity in the eye of law. ….(16-17) Code of Civil Procedure (V of 1908) Order XX, rule 15 Partnership Act (IX of 1932) Section 69 The partnership business is admitted and in view of the provision of sub section 3(a) of section 69 of the Partnership Act the present suit for dissolution of partnership is maintainable as conceded by the learned Advocate for the defendant-appellant while the learned Advocate for the plaintiff respondent has also conceded that a proper accounting as per provision of Order XX, rule 15 of the Code is required to be prepared. Accordingly the suit is sent back First Appeal No. 287 of 2005.

Mr. A.J. Mohammad Ali with Mr. Abdus Salam Mondal, Advocates ....For the Respondent.

Judgment M. Enayetur Rahim, J: Defendants have preferred this appeal being aggrieved by the judgment and decree dated 16.11.2005 passed by the learned Joint District Judge, 2nd Court, Thakurgaon in Money Suit No. 01 of 2004 decreeing the suit.

2. The present respondent as plaintiff instituted Money Suit No.1 of 2003 in the 2nd Court of Joint District Judge, Thakurgaon impleading the present appellants as defendants seeking the following reliefs:

AaHh, h¡c£ fË¡bÑe¡ L¢l−a−R ®k, L) "L' afn£m h¢ZÑa ""®jp¡pÑ N£a¡m£ C−mLVÊ¢eLp'' e¡j£u Awn£c¡l£ hÉhp¡ fË¢aW¡−e h¡c£l 1/2 ew (Aà¡Ñwn ) Awn l¢qu¡−R j−jÑ ®O¡oZ¡ f§hÑL Awn£c¡l£ hÉhp¡ fË¢aù¡e ""®jp¡pÑ N£a¡m£ C−mLVÊ¢eLp'' Hl Awn£c¡l iw−Nl ¢Xœ²£ fËc¡e L¢l−a;

I LNJ (2012)

Tushar Kanti Bhattacharjee and another Vs. Bijoy Lal Karmakar (M,Enayetur Rahim J.)

M) "L' afn£m h¢ZÑa ""®jp¡pÑ N£a¡m£ C−mLVÊ¢eLp'' e¡j£u hÉhp¡ fË¢aù¡−e 19901991 Cw p¡m qC−a 1998-1999 p¡m fkÑ¿¹ Q¥s¡¿¹ ¢qp¡h ¢eL¡n A−¿¹ h¡c£l fË¡fÉ AàÑ¡wn V¡L¡ f¢l−n¡¢da V¡L¡ h¡−c 6,16,134/00 V¡L¡ Bc¡−ul SeÉ 1ew ¢hh¡c£l ¢hl¦−Ü ¢Xœ²£ ¢c−a; N) "L' afn£m h¢ZÑa ""®jp¡pÑ N£a¡m£ C−mLVÊ¢eLp'' e¡j£u hÉhp¡ fË¢aù¡−e 19992000 Cw p¡m qC−a 2003 Cw p¡−ml S¤e j¡p fkÑ¿¹ ¢qp¡h ¢eL¡n A−¿¹ h¡c£l fË¡fÉ Aà¡Ñwn V¡L¡ h¡hc 1ew ¢hh¡c£l ¢hl²−d ¢Xœ²£ ¢c−a ; O) afn£m h¢ZÑa ®jp¡pÑ N£a¡m£ C−mLVÊ¢eLp ®c¡L¡−el J ®N¡X¡E−el k¡ha£u AØq¡hl j¡m¡j¡m pj§−ql HL¢V a¡¢mL¡ (Ce−i¾V¡l£) fËØa¥a L¢lh¡l ¢e¢jš HLSe HX−i¡−LV L¢jne¡l ¢e−u¡Nœ²−j Eš² AØq¡hl j¡m¡j¡−ml ¢qp¡h ¢hhlZ£ J j§mÉj¡−el ¢hhlZ£ c¡¢Mm L¢lh¡l ¢e¢jš kb¡kb B−cn ¢c−a; P) Aœ Bc¡ma hÉ−u h¡c£l Ae¤L¥−m Hhw ¢hh¡c£l fË¢aL¥−m ¢Xœ²£ ¢c−a; Q) BCe J CL¥C¢V j−a k¡q¡ fË¢aL¡l f¡C−a qLc¡l a¡q¡J ¢Xœ²£ ¢ch¡l B−cn ¢c−a; 3. The plaintiff’s case, in short is that the plaintiff and the defendant No.1 having been friendly relationship for a long time at one stage they were agreed to run a partnership business. Accordingly, they had entered into a partnership agreement on 01.01.1398 B.S. In the agreement dated 01.01.1398 B.S. it was stipulated that the plaintiff would have given Taka 80,001/- as the capital of the business and the shop premises of the defendants would be treated as their capital; the defendant No.1 would manage, supervise their business and he would also be liable for other business related affairs like purchase and sell of the goods etc; the bank account would be operated by the defendant No.1 and after ending of the every Bengali year the loss and profit of the business

583

would be accounted and the plaintiff and defendant No.1 would be liable for loss and profit in equal share; the parties were debarred to transfer their respective share to third party and if one of the party would not agree to remain as partner of the business, he would have given a 6(six) months notice on the other side but in no case within 5 years the parties could not be entitled to dissolve the business or demand his respective share or profit. Plaintiff gave Taka 80,001/- to the defendant No.1 as the capital of the business and the defendant No.1 after receiving the said money started business in the shop premises of the defendants, which was their paternal property.

They started partnership business installing sign board under the name and style as M/S Gitali Electronics. The defendant No.1 being a teacher of a Government Primary School, he had been carrying on the business by appointing employees since 01.01.1398 B.S. in the shop premises. While they were carrying on business of various electronics goods like Watch, Clock, Radio, Tape recorder and Casset, within a short period their business had been developing day by day. The defendant No.1 used to take money from the plaintiff beside the capital money for the business and the defendant No.1 also repaid the same. The defendant No.1, from the profit of the business, used to pay the salary of the employees of the shop, electricity bill, municipality tax and other business related expenditures. The defendant No.1 at his own will used to prepare the accounts and maintain the stock register of the goods of the shop and when the plaintiff asked him to show the accounts and stock register, the defendant No.1 all the times avoided to show accounts and stock register on this or that

584

Tushar Kanti Bhattacharjee and another Vs. Bijoy Lal Karmakar (M,Enayetur Rahim J.)

plea and in this way the defendant No.1 had passed so many years. As per the terms of the agreement the plaintiff did not take any step against the said illegal activities of the defendant No.1 within 5 (five) years. The plaintiff on so many occasions requested the defendant No.1 for accounts but the defendant No.1 did not pay any heed to the plaintiffs such request. The defendant No.1 paid Taka 1,54,200/- as profit of the business to the plaintiff in different occasions in between the year 1990-1991 to 1998-1999 and through a cheque the defendant No.1 also gave Taka 80,000/- in the year 2001 and the defendant No.1 gave in total Taka 2,34,200/- to the plaintiff up to the year 2002 as business profit, which is much lesser than he was entitled. The plaintiff when finally asked the defendant No.1 to give him the accounts and demanded ‘V¡m£ M¡a¡’, the account for day to day business, stock register and other business documents, then the defendant No.1 on 28.09.2001 supplied him an account containing 22 Page without giving the full account, stock register and necessary documents regarding purchase and sell of goods. The said account was incomplete one and nothing was mentioned about total amount of purchase of goods and selling of goods. Eventually the plaintiff examined the said account, supplied by the defendant No.1, by a Chartered Accountant firm, at Dhaka and after auditing those it was found that after starting their business up to 1998-1999 financial year the gross profit was Taka 17,00,608/- and the plaintiff was entitled to get it’s 50% i. e. Taka 8,50,304/- and as the defendant No.1 paid Taka 2,34,200/-, the plaintiff is entitled to get the rest amount of profit of Taka 6,16,134/-. The defendant No.1

I LNJ (2012)

agreed to pay the said money. But ultimately he denied to pay the same and in such circumstances plaintiff sent a legal notice to the defendant No.1 demanding his profit as he was entitled. In reply to the said notice the defendant No.1 disclosed that in the shop in question, his younger brother defendant No.2 had been doing business. The defendants were trying to grab the partnership business and in that situation it became necessary to dissolve the partnership business. Since the defendant No.1 did not pay any heed to the legal notice of the plaintiff, the plaintiff was compelled to institute the present suit.

4. The defendants contested the suit by filing written statement denying the material statements made in the plaint. In the written statement it was contended that under compelling circumstances the defendants agreed to do a partnership business with the plaintiff; it was agreed between them that the defendant would have given their paternal shop premises for the business of electronic goods and the said shop premises would be treated as the capital of the defendants and the plaintiff accepted the said proposal; defendant No.1 receipt Taka 80,001/- from the plaintiff as his capital and they started business in the shop premises; one Satyajit Nag was the representative of the plaintiff; the defendant No.1 maintained the accounts, stock register and other business related documents and the plaintiff was impressed to see the such activities of him. Subsequently the defendants came to know that Satyajit Nag was the partner of the plaintiff and Taka 80,001.00 was given as capital money by both of them. The agreement was ended on 31.12.1402 B.S, that is in the year 1995-1996 and in between that period, gross profit of the business was Taka 2,39,399/- out of which the plaintiff and the

I LNJ (2012)

Tushar Kanti Bhattacharjee and another Vs. Bijoy Lal Karmakar (M,Enayetur Rahim J.)

defendant would get Taka 1,19,699/- each and the plaintiff already had received Taka 29,200/in different occasions. Thereafter at the instance of the well wisher of both the parties they agreed to continue the partnership business on verbal agreement. Subsequently misunderstanding arose between the plaintiff and Satyajit Nag and Satyajit Nag left the plaintiff and plaintiff’s brother became the sells man of the shop. When the partnership business was going on, on the basis of verbal agreement the plaintiff in the middle of the year 2001 disclosed to the defendants that he would not continue the partnership business and he demanded his share of profit including the 50% goods of the shop. The defendants ultimately agreed to pay the dues to the plaintiff, as he was entitled to get and in presence of the representative of the plaintiff on 28.09.2001 an account was prepared from 19.07.1990 to September, 2001. As per the said account gross profit was Taka 9,08,036/- and total expenditure was Taka 4,42,985/- and deducting the other various expenditure the profit was Taka 4,15,331/- out of which the plaintiff was entitled to get Taka 2,07,665.50.

Out of Taka 2,07,665.50 the plaintiff on different occasions received Taka 1,04,589/and the rest due amount of profit was Taka 1,03,076/-. When the plaintiff demanded the said money, under a compelling circumstances the defendants executed a deed in favour of the plaintiff as ‘q¡Jm¡a e¡j¡l A‰£L¡l e¡j¡’ and thereafter on different occasion within 14 months they paid Taka 70,000/- to the plaintiff.

After receiving the said amount suddenly the plaintiff stopped to take further amount and by a legal notice through his learned Advocate demanded more money, having no basis. The defendant also returned back the capital money amounting to Taka 80,000/- given by the plaintiff. The plaintiff all the times putting his

585

signature had received money and he never raised any objection regarding the day to day accounts, yearly accounts prepared by the defendants. The plaintiff had managed to obtain an audit report from a Chartered Accountant, which has got no legal basis and had been claiming illegal money from the defendants. The said audit report in fact is not prepared by the Chartered Accountant on the basis of the ‘V¡m£ M¡a¡’, stock register and other document of the business and on the basis of the said report the suit can not be decreed as prayed by the plaintiff. The plaintiff making false claim for illegal gain instituted the suit and the same was liable to be dismissed with costs.

5. The learned Joint District Judge considering the pleadings of the respective parties framed as many as 5 (five) issues. The plaintiff to prove its claim examined 4 (four) witnesses and also adduced documentary evidence, which were marked as exhibits 1-9.

On the other hand the defendants also examined 3 (three) witnesses in support of their case and also adduced documentary evidence which were marked as exhibits-Ka-Gha series.

6. The learned Joint District Judge after hearing of the suit by judgment and decree dated 16.11.2005 decreed the suit declaring the plaintiff’s 50% share in the partnership business under the name and style M/S Gitaly Electronics and also passed a decree dissolving the partnership. The learned Joint District Judge also decreed for a sum of Taka 10,96,017/- in favour of the plaintiff as the profit of the business from the year 1990-1991 to 2002-2003 including the capital money given by the plaintiff.

7. Against the said judgment and decree the defendants have preferred this appeal.

586

Tushar Kanti Bhattacharjee and another Vs. Bijoy Lal Karmakar (M,Enayetur Rahim J.)

8. Mr. Abdul Wadud Bhuiyan and Mr. Shishir Kanti Majumder appeared for the defendant appellants. Mr. Abdul Wadud Bhuiyan in his submission referring section 69 sub-section 3(a) of the Partnership Act has conceded that the present suit for dissolution of partnership business is maintainable, though it is not a registered firm. He also submits that section 69 of the Partnership Act prohibits suit by a partner of an unregistered firm against another partner or against the firm itself but the exception is sub-section 3(a) of section 69 is to this general provision, providing for suit by a partner of a firm for dissolution of a firm or for accounts of dissolved firm, but the learned Joint District Judge acted illegally in decreeing the suit violating the Provision of Order XX, rule 15 of the Code of Civil Procedure. He further submits that as per provision of the said law the Court can pass a preliminary decree for dissolution of a partnership and thereafter direct for accounts but the learned Joint District Judge relying on the exhibit-2, the audit report, which was procured by the plaintiff privately, passed a decree for an amount of Taka 10,96,017.00 and thereby erred in law in decreeing the suit without holding any account as per law and the decree is a nullity in the eye of law and the same is liable to be set aside. To substantiate his contention he refers the case of Md. Abdul Jabbar Sarkar–Vs- Md. Mabud Bux and another, reported in 7 PLR Dhaka, Page23. Mr. Shishir Kanti Jajumder, learned Advocate for the appellant drew our attention to exhibit-2, the audit report and exhibit-Kha, that is the accounts of the partnership business, maintained by the defendants and show us the discrepancies between the two documents particularly in determining the loss and profit of the business.

9. On the other hand Mr. A. J. Mohammad Ali, and Mr. Abdus Salam Mondal, learned

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Advocates appeared for the plaintiff respondent. Mr. Ali submits that in decreeing the suit dissolving the partnership firm the learned Joint District Judge did not commit any error of law. However, he concedes with the submission of Mr. Bhuiyan, the learned Advocate of the appellant, that the Court should have pass a preliminary decree for dissolution of partnership business as per Provision of order XX rule 15 of the Code of Civil Procedure and thereafter direct for accounts.

10. We appreciate the submission and attitude of the learned Advocates of both the parties.

11. In the instant case the partnership business on the basis of an unregistered document is admitted by both the parties. In view of the said admission, the plaintiff is entitled to get a preliminary decree for a declaration that he is a partner in the business in question and for dissolution of partnership business.

12. Order XX, rule 15 of the Code of Civil Procedure runs as follows: “Where a suit is for the dissolution of a partnership, or the taking of partnership accounts, the Court, before passing a final decree, may pass a preliminary decree declaring the proportionate shares of the parties, fixing the day on which the partnership shall stand dissolved or be deemed to have been dissolved, and directing such accounts to be taken, and other acts to be done, as it thinks fit.”

13. From a plain reading of the impugned judgment and decree it appears to us that the learned Joint District Judge passed the same beyond the scope of order XX, rule 15 of the Code of Civil Procedure. Said law clearly

I LNJ (2012)

Tushar Kanti Bhattacharjee and another Vs. Bijoy Lal Karmakar (M,Enayetur Rahim J.)

contemplates that before dissolution of a partnership or taking of partnership accounts, before passing a final decree Court may pass a preliminary decree declaring the proportionate shares of the parties, fixing the date of which the partnership shall stand dissolve or be deemed to have been dissolved and directing such account to be taken and other acts to be done the Court thinks fit. But in passing the impugned judgment and decree the learned Joint District Judge without passing any preliminary decree and taking account straight way relying on a procured audit report by the plaintiff, exhibit-2, has determined the profit of the business and the share of the respective parties and decreed for an amount of Taka 10,96,017/- in favour of the plaintiff.

14. From exhibit-2, the audit report, it appears that P.W.2, Tofayel Ahmed, the Chartered Accountant made remark to the effect:

“hÉhp¡−ul ®~ce¢¾ce œ²u-¢hœ²−ul pjbÑ−e hÉhq²a V¡m£ M¡a¡ pj§q (hvpl Ae¤k¡u£) jS¤a j¡−ml ¢hhle£l pjbÑe ®k¡NÉ LÉ¡n ®j−j¡, Q¡m¡e, c¢mm cÙ¹¡−hS CaÉ¡¢c ¢ed¡Ñl−el SeÉ EfØq¡fe Ll¡ q−m pw−n¡¢da m¡i/ ®m¡Lp¡−el ¢hfl£−a ¢ed¡Ñ¢la fË¢a−hce Hl Supplement Ll¡ ®k−a f¡−lz” 15. P.W.2, Tofayel Ahmed in his crossexamination admitted to the effect:

“1995-96 Cw p−e j¡m œ²u h¡hc ®cM¡−e¡ q−u−R 7,75,216/00 V¡L¡z Bl Bj¡l fË¢a−hc−e E−õM l−u−R 5,95,416/00 Hhw 1996-97 Cw p−e M¡a¡u E−õM B−R j¡m œ²u h¡hc 7, 33,262/00 V¡L¡z Bl Bj¡l fË¢a−hc−e E−õM l−u−R 5,91,630/00 V¡L¡ Hhw 1997-98 Cw p−e M¡a¡u j¡m œ²u h¡hc E−õM B−R 8,02,594/00 V¡L¡ Bl Bj¡l fË¢a−hc−e E−õM l−u−R 6,20,440/00 V¡L¡

587

Hhw 1998-99 Cw p−e M¡a¡u j¡m œ²u h¡hc E−õM B−R 7, 23,541/00 V¡L¡ Hhw Bl Bj¡l fË¢a−hc−e E−õM l−u−R 5,07,594/00 V¡L¡z ------z ®L¡e g¡−jÑl ""1'' hvp−ll ¢qp¡h ¢eL¡−nl ¢i¢š−a ®k Gross Profit Bp−h ""9'' hvp−ll ¢qp¡h ¢eL¡−nl Gross Profit HLC lLj q−h e¡z -----z fr La«ÑL c¡¢Mm£ M¡a¡u 1990-91 Cw p−el ¢qp¡−h ®L¡e f¢lhqe MlQ ¢mM¡ e¡Cz I M¡a¡u 1991-92 Cw p−el Hhw 1992-93 Cw p−el Hhw 1993-94 Cw p−el Hhw 1993-94 Cw p−el Hhw 1994-95 Cw p−el Hhw 199596 Cw p−el Hhw 1996-97 Cw p−el Hhw 1997-98 Cw p−el Hhw f¢lhqe Ml−Ql ¢qp¡h ¢mM¡ B−Rz B¢j a¡ Bj¡l A¢XV ¢l−f¡VÑ ¢X¢mV L−l ®cM¡−u¢Rz I V¡L¡V¡ B¢j MlQ ¢qp¡−h ®cM¡−u¢Rz B¢j 9 hvp−ll ¢qp¡h HL−œ L¢l e¡C B¢j hvpl hvpl ¢qp¡h L−l¢Rz------z k¢c Bj¡l ¢qp¡−hl 9 hvp−ll j¡m ¢hœ²−ul V¡L¡ HL−œ ®k¡N Ll¡ qu a¡ q−m a¡ 70,16,643/00 V¡L¡ q−h ¢L e¡ a¡ B¢j pju ¢e−u ®k¡N e¡ L−l HMe hm−a f¡lh e¡z k¢c 1998-99 Cw p−el jS¤c j¡−ml 2,98,752/00 V¡L¡ Eš² 70,16,643/00 V¡L¡l p¢qa ®k¡N Ll¡ qu a¡ q−m a¡ 72,35,595/00 V¡L¡ q−h ¢Le¡ a¡ HMe B¢j ®k¡N e¡ L−l hm−a f¡lh e¡z ” 16. In view of the above evidence and materials on record it is crystal clear that exhibit-2, the audit report is not a conclusive account of the business in question and same is also a biased, incomplete report and suffers from inconsistency and as such the learned Joint District Judge acted illegally in decreeing the suit for an amount of Taka 10,96,017.00 relying on the said procured audit report and same can not be sustained.

17. Although in order XX rule 15 of the Code of Civil Procedure the language has been used as ‘may pass a preliminary decree’ but if we read the entire provision of above law as a

588

Tushar Kanti Bhattacharjee and another Vs. Bijoy Lal Karmakar (M,Enayetur Rahim J.)

whole and consider the scheme of the said law, it would be clear that passing a preliminary decree is mandatory before taking account. We have no hesitation to hold that the impugned judgment and decree is passed beyond the scope of order 20, Rule 15 of the Code of Civil Procedure and same is without jurisdiction and a nullity in the eye of law.

18. In the case of Gulab Thai –Vs- Shibba Mal and another, reported in AIR 1937, ALL 674 it has been observed: “whether the firm is dissolved by a decree of court or otherwise, the dissolution can never be complete unless the accounts of the firm are settled.”

19. In that case it has been further held that the right for accounts in a suit for dissolution of a firm is not an account of any provision of section 69 of the Partnership Act nor because the dissolution is not complete unless the accounts are settled, but because of the provision in order XX rule 15 of the Code of Civil Procedure, Court may grant it.

20. Once a suit for dissolution of a partnership is filed it will attract the operation of order XX, rule 15 of the Code of Civil Procedure under which the Court is quite competent to grant necessary relief as contemplated in that rule. Prayer for determination of shares and for accounts are not implicit in the prayer for dissolution, but under order XX, rule 15 of the Code of Civil Procedure, the Court may grant it.

21. In view of the above discussion we are also of the view that the learned Joint District Judge failed to understand the purport and scope of order XX rule 15 of the Code of Civil Procedure and proceeded with the case in a wrong way.

22. In the instant case partnership business is admitted and in view of the provision of

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section 69 and sub-section 3(a) of the Partnership Act the present suit for dissolution of partnership is maintainable as conceded by the learned Advocate of the defendantappellants relying on the decision reported in 7 PLR Dacca, Page-23. On the other hand learned Advocate of the plaintiff respondent has also conceded that a proper accounting as per provision of order XX rule 15 of the Code of Civil Procedure is required to be prepared.

In view of the above position of the respective parties, it is not at all necessary to discuss the evidence of the respective parties afresh to determine whether there was any partnership business between the parties and to determine the accounts.

23. Having discussed as above we are inclined to interfere with the impugned judgment and decree. We send the case back on remand to the trial Court to pass a preliminary decree on the basis of the evidence available on the record in the light of the provision of order XX, rule 15 of the Code of Civil Procedure determining the date on which the partnership shall stand dissolve or deem to be dissolved and thereafter by appointing an accountant knowing person, preferably an agreed person by the parties, direct to prepare accounts and on the basis of such accounts final decree be passed. It is to be mentioned here that in the instant case profit of the parties are admittedly equal that is 50%, 50%.

In the result, the appeal is allowed without any order as to costs. The judgment and decree dated 16.11.2005 passed by the learned Joint District Judge, 2nd Court, Thakurgaon in Money Suit No.1 of 2004 is hereby set aside. The suit is sent back on remand to the trial Court with the observation made in the body of this judgment.

Send down the lower Court records at once.

Ed.

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Alhaj Mohd. Siraj-ud-dowla Vs. Golam Mowla Faisal and others (F. R. M. Nazmul Ahsan, J.)

HIGH COURT DIVISION (Civil Revisional Jurisdiction) Mr. Sheikh Abdul Awal, J. And Mr. F.R.M. Nazmul Ahsan, J.

Judgment 13.01.2011

} Alhaj

Mohammad

} Siraj-ud-dowla

599

DLR; 50 DLR 29; Siraj Miah vs State , 39 DLR (AD) 46; Shafi-a-Choudhury vs Pubali Bank, 54 DLR311; Nurunnnesa vs Mohiuddin, 49 DLR 428 ref.

Mr. Rabiul Alam Chowdhury, Advocate

...Petitioner.

---For the petitioner.

Vs. Mr. Md. Shamsuddin Howlader with } Mominullah and others ... Opposite parties. Mr. Md. Shahidul Islam, Advocates } }

---For the opposite-party No.1.

Judgment

Code of Civil Procedure (v of 1908) Order VII, rule 11 It appears that the present suit was filed for declaration of title as well as for setting aside the exparte decree and the earlier suit was for declaration of title and recovery of khas possession. From the averment of the plant of the present suit it appears that the plaintiff has distinct cause of action for which it will not be proper to reject the plaint without taking evidence. The Court can reject the plaint only when it comes to the conclusion that even all the allegations made in the plaint are proved even then the plaintiff would not be entitled to any relief whatsoever. As there is sufficient and distinct cause of action in the allegations made in the plaint and if such case is proved the plaintiff would be entitled to the relief sought for. Moreso, in rejecting the plaint the Court has to consider the statement of the plaint only. No error was committed by the trial court in rejecting the application made under Order VII, rule 11 of the Code of Civil Procedure, 1908. …(10 and 13).

Bangladesh Jatia Samabaya hilpa Samity Ltd. Vs Shan Hosiery, 10 BLC (AD) 8; Sudhansu Kumar Barai and others vs Abul Hashem and others, 43 DLR 327; Nurunnnesa and others vs Mohiudin Chowdhury and others, 49 DLR 234; Islami Bank Bangladesh vs Abdul Sah 53 Crivil Revision No. 2594 of 2000.

F.R.M. Nazmul Ahasan, J:

This rule was issued calling upon the opposite party No.1 to show cause as to why the impugned order dated 11.05.2000 passed by the learned Subordinate Judge, 2nd Court, Dhaka in Title Suit No. 410 of 1998 rejecting an application filed under Order 7 Rule 11 of the Code of Civil Procedure 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. The relevant facts of this case are that the present opposite party no.1 as plaintiff has filed a suit being Title Suit No.410 of 1998 in the Court of Subordinate Judge, 2nd Court, Dhaka for a declaration of title in the ‘ka’ schedule land of the plaintiff and for a further declaration that the ex-parte decree dated 25.05.1996 passed in favour of the defendant No. 1 (present petitioner) in Title Suit No.213 of 1994 in respect of ‘kha’ schedule land is illegal, void, fraudulent and not-binding upon the plaintiff.

3. That the defendant no.1 (present petitioner) appeared in the suit and filed written statement on 09.02.1999 denying all the material allegation of the plaintiff. Thereafter, the defendant no.1 filed an application on

600

Alhaj Mohd. Siraj-ud-dowla Vs. Golam Mowla Faisal and others (F. R. M. Nazmul Ahsan, J.)

23.03.1999 under Order 7 Rule 11 of the Code of Civil Procedure for rejection of plaint of Title Suit No.410 of 1998 before the trial Court contending that the present plaintiff Mominullah as plaintiff previously filed a suit being Title Suit No.377 of 1997 for declaration of title in the suit property; that in Title Suit No.377 of 1997 Mrs. Jahanara Begum wife of M. Waziullah and others were defendants; that those defendants were the allottees of the present defendant No.1 and they have purchased the suit property including other property from present defendant No.1,Al-Haj Mohammad Seraj-ud-dowla; that the defendants of Title Suit No.377 of 1997 filed an application on 14.06.1998 under the provision of Order 7, Rule 11 of the Code of Civil Procedure for rejection of the plaint; that the plaintiff filed written objection on 12.07.1998; that the plaint of Title Suit No.377 of 1997 was rejected on 30.08.1998 on contest and accordingly decree was drawn up and signed on 7.9.1998 and there upon, being aggrieved by the aforesaid order plaintiff Momin Ullah on 24.12.1998 has filed the instant First Appeal No.196 of 1999 which is pending for disposal before this Court; that appeal is the continuation of original suit presuming that proceedings of Title Suit No.377 of 1997 is pending before this Court; that during pendency of proceedings of Title Suit No.377 of 1997 be this Division, plaintiff Mominullah cannot legally file an another suit being Title Suit No. 410 of 1998 for the same suit property for the same cause of action in the same Court against the same defendant or the predecessor of the same defendant; that in Title Suit No.377 of 1997 plaintiff Mominullah admitted that he is not in possession over the suit property and therefore, he prayed for recovery of khas possession by paying advalorem court fees; that plaintiff Mominullah

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is not in possession of the same suit property even than he did not pray for recovery of khas possession in Title Suit No.410 of 1998; that the plaintiff cannot get a decree of declaration of his title while he is admittedly out of possession of the suit property without a prayer for recovery of khas possession; that the plaintiff did not pray for consequential relief; that the suit is barred by the provision of section 42 of the Specific Relief Act, Section 12 of the Code of Civil Procedure, Article 164 of the Limitation Act and therefore the plaint of Title Suit No.410 of 1998 is liable to be rejected under Order 7 Rule 11 (d) of the Code of Civil Procedure.

4. That the plaintiff filed written objection on 29.08.1999 against the aforesaid application for rejection of plaint contending, inter alia, that the application is not maintainable and there is no ingredient of rejection of plaint; that the suit is not barred by the provision of section 42 of the Specific Relief Act; that the suit is not barred by the provision of Article 164 of the Limitation Act etc. The plaintiff of course admitted that he filed Title Suit No.377 of 1997 and First Appeal No.196 of 1999.

5. That the application for rejection of plaint was heard on 11.05.2000 and the learned Subordinate Judge, 2nd Court, Dhaka rejected the same on that day holding a view that it will be not proper to reject the plaint without taking evidence in support of its claim.

6. Being aggrieved by and dissatisfied with the aforesaid order the petitioner preferred this Revisional application before this Court and obtained the present Rule.

7. Mr. Rabiul Alam Chowdhury, the learned Advocate appearing on behalf of the petitioner

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Alhaj Mohd. Siraj-ud-dowla Vs. Golam Mowla Faisal and others (F. R. M. Nazmul Ahsan, J.)

submits that the learned Subordinate Judge did not consider that the plaintiff did not pray for khas possession or consequential relief; that the plaintiff has only prayed for declaration of title and therefore this suit is barred under provision of section 42 of the Specific Relief Act; he submits that the plaintiff filed Title Suit No.377 of 1997 for the same suit property in the Court of Subordinate Judge, 2nd Court, Dhaka impleading the present defendant no.1 for declaration for his title and recovery of khas possession and filed an application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint and the plaint of aforesaid suit has been rejected on contest on 31.08.1999, thereafter the plaintiff has filed the present F.A. No.196 of 1999 which is pending before this Court for hearing; that he submits that the plaintiff has filed Title Suit No.410 of 1998 afresh in the same Court for the same suit property on the basis of the same document for a same cause of action and the facts are similar of earlier Title Suit No.377 of 1997. He further submits that the plaintiff has prayed for a decree for setting aside decree dated 25.08.1998 passed in Title Suit No.213 of 1994 by the Subordinate Judge, 2nd Court, Dhaka but he has paid fixed Court fees for Tk.300/- only. He did not pay any advalorem Court fees. The learned Advocate for the petitioner finally submits that the plaintiff filed Title Suit No.213 of 1994 in the Court of Subordinate Judge, 2nd Court, Dhaka for declaration of title in the suit property and for cancellation of deed No.15722 dated 21.12.1970 on the ground of fraud. The plaintiff was supposed to file suit within 30 days from the date of decree or from the date of his knowledge of the decree dated 25.5.1996 passed in Title Suit No.213 of 1994 as per provision of Article 164 of the Limitation Act. On the other hand the plaintiff filed the instant

601

suit on 17.11.1998 and therefore, the suit was barred by the law of Limitation. The learned Subordinate Judge without considering the aforesaid facts and rejected the application under order VII Rule 11 of the Code of Civil Procedure and thus committed an error of law resulting in an error in the decision occasioning failure of justice. In support of his contention the learned Advocate for the petitioner referred before us same decisions namely in the case of Islami Bank Bangladesh-vs.-Abdul Jalil reported in 53 DLR 29, 50 DLR 29, in the case of Siraj Miah-vs.-State reported in 39 DLR (AD) 46, in the case of Shafi a Choudhury-vs.Pubali Bank reported in 54 DLR 311 and in the case of Nurunnessa-vs.-Mohiuddin reported in 49 DLR 428.

8. On the other hand Mr. Md. Shamsuddin Howlader, the learned Advocate appearing for the opposite party no.1 by filing counter affidavit submits that the learned Judge of the trial Court rightly passed the impugned order rejecting the application under Order 7 Rule 11 of the Code of Civil Procedure. He submits that the plaintiff instituted Title Suit No.410 of 1998 with a prayer for declaration of title and further declaration that the disputed ex-parte decree of title Suit No.213 of 1994 is fraudulent, inoperative and not binding upon the plaintiff. The present-plaintiff-opposite party was not made party in Title Suit No.213 of 1994. In the aforesaid Title Suit No.410 of 1998 cause of action was written in paragraph no.14 of the plaint is different from the aforesaid suit No.377 of 1997. He further submits that in exercising the power of rejecting a plaint the court can look into the statements of the plaint only it cannot consider any facts stated in the written statement and documents produced by the defendants. A plaint cannot be rejected without taking

602

Alhaj Mohd. Siraj-ud-dowla Vs. Golam Mowla Faisal and others (F. R. M. Nazmul Ahsan, J.)

evidence of the parties at the trial and the issue of maintainability of the suit would be framed at the time of trial. Mr. Md. Shamsuddin Howlader in supported his arguments referred to the decisions reported in 10 BLC (AD) 8 and 43 DLR 326.

9. We have perused the plaint, impugned order of the trial Court and considered the submissions made by the learned Advocates of both the sides, it is evident from the Revisional application that the Title Suit No.377 of 1997 was filed on 01.12.1997 for declaration of title and for recovery of khas possession and that plaint was rejected on 30.08.1998 against which First Appeal No.196 of 1999 has been preferred and during pending the same Title Suit No.410 of 1998 was filed on 17.11.1998 for declaration of title and for setting aside the ex-parte judgment and decree dated 23.5.1996 passed in Title Suit No.213 of 1994. It is found in the present suit defendant appeared by filing written statement and thereafter he filed an application under Order 7 Rule 11 of the Code of Civil Procedure which was rejected by the trial Court below stating as follows:-

“ö¢em¡j z Bl¢S fËaÉ¡MÉ¡−el clM¡Ù¹, av ¢hl²−cd c¡¢Mm£ ¢m¢Ma Bf¢š Hhw e¢b fkÑÉ¡−m¡Qe¡ L¢lm¡jz X~q¡ fkÑÉ¡−m¡Qe¡u Bl¢S fËaÉ¡MÉ¡−el HC j¤ý−aÑ M¤¢Su¡ f¡Ju¡ k¡u e¡ z ac¤f¢l f§hÑha£Ñ j¡jm¡ J haÑj¡e Aœ j¡jm¡l hJ²hÉ p¢WL Eq¡ p¡rÉ NËqZ hÉ¢a−l−L HC j¤ý−aÑ p¢WLi¡−h ¢el²fZ Ll¡ pÇih eu f§hÑha£Ñ j¡jm¡ Q¡m¤ b¡¢L−mJ I j¡jm¡l à¡l¡ haÑj¡e j¡jm¡ h¢ZÑa AhØq¡d£−e h¡d¡ ®cM¡ k¡u e¡ z g−m Bl¢S fËaÉ¡MÉ¡−el clM¡Ù¹ e¡ je‘¤l qCm z a−h ®L¡efr k¢c j−e L−le f§hÑha£Ñ j¡jm¡l p¡−b Aœ j¡jm¡ pw¢rç a¡q¡ qC−m I ®j¡Lccj¡l flha£Ñ B−cn fË¡¢f¹ p¡−f−r ®cx L¡x ¢h¢d BC−el 10 d¡l¡ ¢Lwh¡ 151 d¡l¡ fË−u¡−N Øq¢N−al fË¡bÑe¡ L¢lu¡ Aœ

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®j¡Lccj¡u fË¢aL¡−ll p¤−k¡N ¢e−a f¡−le z BN¡j£ 13/6/2000 Cw a¡w Cp¤É NW−el SeÉ ¢ce d¡kÑÉ Ll¡ qCm z” 10. We have carefully examined the record and on perusal of the plaint it appears to us that the present suit was filed for declaration of title as well as setting aside the ex-parte decree and the earlier suit was for declaration of title and recovery of khas possession. Therefore, we find from the averments of the plaint of the present suit that the plaintiff has distinct cause of action and it will be not proper to reject the plaint without taking evidence and as such the learned Subordinate Judge appears to be perfectly justified in refusing to reject the plaint.

11. In the case of Bangladesh Jatiya Samabaya Shilpa Samity Ltd -vs.- Shan Hosiery, Proprietor Md. Abu Taleb and others reported in 10 BLC (AD) 8, it has been held that, “With regard to rejection of plaint under Order VII rule 11 of the Code of Civil Procedure, the High Court Division rightly found that in deciding the question as to whether a plaint is liable to be rejected, the court is always required to peruse the plaint only and court is not permitted to travel beyond the plaint to dig out grounds to reject the plaint which is a settled principle of law.”

12. In the case of Sudhansu Kumar Barai and others-Vs.-Abul Hashem and others reported in (43 DLR 327), it has been held that, “In exercising the power of rejecting a plaint the Court can look into the statements of the plaint only. It cannot consider any fact stated in the written statement or any document produced by the defendant.”

13. In the case of Nurunnessa and others -vs.Mohiuddin Chowdhury and others reported in 49 DLR 234, it is held that; “The settled principle of law is that in deciding the question as to whether the plaint should be rejected the

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Alhaj Mohd.

Siraj-ud-dowla Vs. Golam Mowla Faisal R. M. Nazmul J.) Monindranath Biswas Vs. Kantaram Mondaland andothers others(F. (Shahidul Islam,Ahsan, J.)

Court is required to consider only the plaint.

The Court is required to apply its mind to the averments made in the plaint itself as a whole, assuming all the averments made in the plaint itself as a whole, assuming all the averments made therein to be correct, without taking into consideration the possible defence plea. In other words, the Court can reject the plaint only when it comes to the conclusion that even if all the allegations made in the plaint are proved still then the plaintiffs would not be entitled to any relief whatsoever. From the allegations made in the plaint we find that there is sufficient and distinct cause of action and if the averments made in the plaint are proved the plaintiffs would be entitled to the relief sought for.

14. From the facts and circumstances of the case and the decisions cited above we are unable to accept the contentions raised by the learned Advocate for the petitioner.

15. The decisions referred by him reported in 53 DLR 29, 39 DLR (AD) 45, 54 DLR 311 and 49 DLR 428, are quite distinguishable from the facts and circumstances of the present case and have no manner of application in the present case.

16. In view of our discussions made in the foregoing paragraphs and the principles laid down in the decisions reported in 10 BLC (AD) 8 and 43 DLR 327, we are of the opinion that the learned Subordinate Judge committed no error of law in rejecting the application under Order 7 Rule 11 of the Code of Civil Procedure.

17. In the result, the Rule is discharged without any order as to costs.

18. The order of stay granted earlier by this Court is vacated.

HIGH COURT DIVISION (Civil Revisional Jurisdiction) Mr. Shahidul Islam, J.

Judgment 31.07.2012

} Monindranath Bisws ...DefendantPetitioner.

Vs. } Kantaram Mondal } being dead his heirs Monishanker and } others. } ... Plaintiff-opposite parties.

}

Code of Civil Procedure (V of 1908) Order 7, rule 7 Every plaint shall state specifically the relief which plaintiff claims either simply or in the alternatives and it shall not be necessary to ask for general or other relief which may always be given as the court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.

Code of Civil Procedure (V of 1908) Order 7, rule 7 In the absence of prayer for benami declaration the court can give such relief.

Whenever the plaint’s statements made out a case of benami acquisition of property and that was proved by sufficient evidence, a court of law should not hesitate to decree the suit following the provision of Order 7, rule 7 of the Code of Civil Procedure although no prayer for benami declaration was incorporated in the plaint. Order 7, rule 7 has given ample power to a court to grant relief, which the plaintiff or defendant claims. In the instant case the relief was claimed but in the prayer portion it was not specifically written, which was mere a mistake. ‌(23)

Communicate the order at once.

Ed.

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Crivil Revision No. 3711 of 1999.

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Dhaka Water Supply Authority Vs. Dr. S. M. Hossain and others. (Mohammad Anwarul Haque, J.)

Requisition of Immovable Property Ordinance, 1982 we are inclined to hold that no violation of law is found to have been made by the court below which can be interfered under section 115(4) of the Code of Civil Procedure.

Child Mother Health -Vs- Abdus Salam, 49 DLR 160 ref.

Mr. Md. Ibrahim Mollah with Mr. Md. Alamgir Hossain, advocate --- For the Opposite-party No.1 Mr. Md. Shahidul Islam, D.A.G with Mr.Gopal Chandra Saha, A.A.G. ---For the Opposite party No.3 Judgment Mohammad Anwarul Haque, J: Respondent of the Arbitration Appeal No. 22 of 1995 and opposite party No. 2 of Arbitration Case No. No. 289 of 1992 has preferred this revisional application under section 115(1) of the Code of Civil Procedure challenging the award granted to the applicant of the of the Arbitration case by the Arbitration Court to the tune of Tk. 4,10,156.21 and subsequently affirmed by the appellate authority, the learned District Judge, Dhaka on 01.03.2006 alleging that both the court below have ignored the provision of section 28(2) and section 31 of Acquisition and Requisition of Immovable Property Ordinance, 1982 and in violation of those two mandatory provisions of law have granted award illegally which is liable to be setaside.

2. Mr. A.M. Aminuddin the learned advocate appearing on behalf of the opposite party No. 2 submits that section 22 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 does not allow the Arbitrator to entertain any application unless

597

interested person has refused to accept the award made by the opposite party under this Act within 45 days from the date of service of notice of award and made an application to the Arbitrator for revision against such award or to receive the award on objection in writing.

Moreover where the original award amounting to Tk. 95,767.92 in L.A. Case No.19 of 199091 is found to have been received by the awardee, the present Opposite-party, without any objection; no application can be allowed to file before the Arbitrator under section 28(1) and (2) of the Acquisition and Requisition of Immovable Property Ordinance, 1982. Even violating the provision laid down in section 31 of the Ordinance the Arbitrator as well as the Judge of the Appellate Tribunal has granted award to the extent of Tk. 5,05,924.13 which is more than 10% of the award given by the Deputy Commissioner; in violation of the proviso of section 31 of the said Ordinance 1982; so the impugned judgment passed in Arbitration Appeal is liable to be set aside.

3. On the other hand, Mr. Md. Ibrahim Molla the learned advocate appearing on behalf of the awardee, the present-opposite-party No.1 has unconditionally accepted the provision as urged by the learned advocate for the Petitioner -Respondent WASA, Dhaka but at the same time he has asserted that the awardee, the Opposite-party, has partly withdrawn the award amounting to Tk.63,0845.28 on protest which is also admitted in the written statement filed by the Deputy Commissioner, Dhaka the appellant-opposite-party No.1 stating that the awardee himself received part award money on protest; as such this question of fact cannot be allowed to be raised at this stage of hearing of revisional application filed under section 115(1) of the Code of Civil Procedure. The learned advocate further submits that the proviso of section 31 of the Ordinance 1982 has been incorporated by Act XX of 1994 with effect from 1st December,1994; as such there

598

Dhaka Water Supply Authority Vs. Dr. S. M. Hossain and others. (Mohammad Anwarul Haque, J.)

can be no manner of application of this provision in the L.A. case which was started in the year 1990-91 and the awardee received the part award on 6.9.1992. In support of his contention the learned advocate appearing on behalf of the Opposite-party No.2 has referred the decision of a case Former Mordern Shishu Hospitas, presently Institute of Child Mother Health Vs. Abdus Salam reported in 49 DLR page 160 where their lordships have positively opined that the proviso was not applicable; as provision was incorporated by Act XX of 1994 with effect from 01.12.1994 where the land in question was acquired in L.A. Case No.19 of 1990-91.

4. On such submission we have gone through the written statement filed by Opposite-party No.3 Deputy Commissioner before the Arbitrator where he has categorically admitted the fact of objection as alleged by the opposite party-awadee.

However, we are just quoting the relevant portion of the written statement filed by the Opposite-party No.3 who also filed the Appeal No. 22 of 1995.

“ZvQvov 10 aviv 2 DcÐaviv 3 Aby‡”Q` ‡gvZv‡eK `iLv¯ZKvix AvcwË mnKv‡i ¶wZc~i‡bi A_© Mªnb Kwiqv‡Qb e‡j wZwb 28 avivq ÐÐÐÐÐÐ cvB‡Z cv‡i|” 5. On the face of this submission, let us quote the proviso of section 10(2) of the Acquisition and Requisition of Immovable Property Ordinance, 1982 which is as follows: “Provided further that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 28.”

6. The above proviso available in section 10(2) is to be read with section 28 of the Ordinance 1982 and on the admission of the

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defendant-appellant this application is found to have been filed under section 28 as all the requirements of law are found to have been complied with in terms of section 28 and section 10(2) of the Acquisition and Requisition of Immovable Property Ordinance, 1982.

7. Now, let us decide whether violating the proviso of section 31 the impugned award beyond 10% can be lawfully granted by the arbitrator which has been affirmed by the learned Judge of the Tribunal or not?

8. In the instant case it is found that the L.A. Case was started in the year 1990-1991 and awardee received the part amount on 6.9.92 and the proviso of section 31 has been incorporated by Act XX of 1994 with effect from 1.12.1994; as such this provision of limitation of awarding amount not beyond 10% has no manner the application in the instant case because the awardee the present Oppositeparty No.1 has already acquired his right which cannot be taken away by subsequent legislation. In support of it we are to rely upon the decision of a case Child Mother Health Vs. Abdus Salam reported in 49 DLR page 160.

9. Having due regard to the above decision and the provision of law referred to above and the provision of section 28 read with section 10(2) and 31 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 we are inclined to hold that no violation of law is found to have been made by the court below which can be interfered under section 115(4) of the Code of Civil Procedure; as such we do not find any merit in the Rule and accordingly the Rule is discharged.

Let a copy of the order along with L.C.R. be sent to the court below at once for information and necessary action.

Ed.

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Md. Ruhul Amin and others Vs. Bangladesh and others, (Naima Haider, J. )

637

Republic of Bangladesh, a Rule Nisi was issued calling upon the respondents to show (Special Original Jurisdiction) cause as to why the act of the respondent Mr. Moyeenul Islam } Md. Ruhul Amin No.4,creating and reserving the post of Deputy and others Chowdhury, J. } ...Petitioners Manager (Sales), and showing the same as And vacant in violation of the Service Regulations } Vs. Ms. Naima Haider. of Jiban Bima Corporation (Officers and Staff), } Bangladesh and Judgment 1992 (amended in January, 2004) shall not be others.

19.07.2010 } ...Respondents declared to have been done without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this Constitution of Bangladesh, 1972 Court may seem fit and proper. In support of Articles 27 and 102 (2) (a) (ii) By reserving the posts of Deputy Manager their application the petitioners, fourteen in (Sales) of Jiban Bima Corporation, the number, averred that they got appointed on authority has acted beyond the scope of law, varying dates during the period between 1999 thereby discriminating other Deputy Mana- and 2000 to the post of Assistant Manager as gers standing on the same footing. The regular employees of Jiban Bima Corporation petitioners are eligible to be promoted to (Head Office). On several dates, again, the that post subject to other promotional petitioners were elevated to the post of criteria. ... (15 and 17) Assistant Manager and have been performing Associated Provincial Picture Houses Limited their duties with due diligence and competence. v. Wednesbury Corporation [1948] 1 K. B. During this period all the petitioners had 223; Council of Civil Service Unions v. completed departmental training under Minister for the Civil Service (All ER p. 951 aBangladesh Insurance Academy and obtained b); Breene v Amalgamated Engineering Union professional diploma, known as Insurance and Others [1971] 2 QB 175; Re City of Montreal and Arcade Amusement Inc. et al, Diploma from the said Academy to pave their way upward, i.e., to that of Manager.

[1985] 1 S.C.R. 368 ref.

HIGH COURT DIVISION

Mr. Abdur Rahim, Advocate with Mr. Md. Khalilur Rahman Bhuiyan, Advocate ‌For the petitioners.

Mr. Masud Rana Mohammed Hafiz, Advocate ...For the respondent No.4 Judgment Naima Haider, J: In this application engaging Article 102(2) (a) (ii) of the Constitution of the People’s Writ Petition No. 6318 of 2009.

2. The service rules of the corporation divides the employees into two different categories, namely, those who are directly employed and those who were promoted from lower position.

All the terms inclusive of those relating to benefits are guided by the Jiban Bima Corporation (Officers and Staffs) Service Regulations of 1992. Terms of service of those who are appointed to sell and collect policies from the potential customers are also regulated by the said Service Regulations.

638

Md. Ruhul Amin and others Vs. Bangladesh and others, (Naima Haider, J. )

3. The respondent No.3 duly promoted the petitioners to the rank of Development Manager in accordance with the Regulation.

The next superior position for the petitioners is that of Deputy Manager, as provided in the Service Regulation. To get escalated to that position, the postulants are required to have seven years of experience in the post of Assistant Manager or Assistant Manager (sales), but there is no such post as that of Deputy Manager (sales) in the Service Regulations.

4. Some high handed officers of the Corporation with malafide intention created the post of Deputy Manager (sales) with ulterior motive only to deprive the directly recruited Assistant Managers to get on to the promotional ladder. Following a discussion between the Ministry of Commerce and Jiban Bima Corporation, an organizational setup was approved in 1984, clearly showing that there are only 114 post of Deputy Managers and there was no mention whatsoever about anything like Deputy Manager (sales). Neither the Jiban Bima Corporation (sales), the Branch Office Manual 1985 nor does the Service Regulations or Charter of Duties issued by the Ministry of Commerce, makes any reference to anything like that. The petitioners, along with others filed several applications to the Corporation, seeking to obstruct the promotion of the sales employees. Even the lawyer of the Corporation opined that the post of Deputy Manager (sales) is non-existent, either in the service rule or in the Corporation’s Organogram and hence there could be no promotion to the post of Deputy Manager (sales).

5. On 13.04.2008, the petitioner No.2 preferred an application to the respondent

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No.4, asking to be promoted in accordance with the Service Rules to the post of Deputy Manager. He also asked the authorities not to promote the sales employees to the said hierarchical position. A discussion on this subject at the 487th meeting yielded no result.

As on 28.5.19 the Respondents has already promoted some sales employees to the post of Deputy Manager in defiance of the provisions as cited above and thereby subjected the petitioners to discriminatory treatment. A Demand of Justice Notice served on 6.9.2009 by the petitioners’ lawyer, also ended in fiasco and hence the petition.

6. The Respondents made serious attempt to thwart the Rule by filing a comprehensive affidavit in opposition denying virtually all the allegations, recognizing that there is no post of Deputy manager (sales). The Respondent nevertheless asserted that the Organogram of the Corporation which was implemented on 17.1.1984, specifically stipulates a position known as Deputy Manager (sales), although the same was neither included in the Service Regulation or in any other instrument. Their case is founded on the theme that notwithstanding absence of the position of Deputy Manager (sales), the same is, nonetheless, binding upon all employees and that the Organogram has been in existence for more than two decades and all the employees of the Corporation have been reckoning the Organogram as part of their Service Regulations. It has been asserted that the promotion of the sales employees have never been at the cost of the petitioners’ prospect to promotion and the management had never embarked upon any discriminatory move. It has also been alleged in the affidavit in opposition that the petitioners took recourse to suppression of facts by inscrypting some false statement.

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Md. Ruhul Amin and others Vs. Bangladesh and others, (Naima Haider, J. )

7. When the Rule was taken for hearing by this Bench, Mr. Abdur Rahim, the learned Advocate for the petitioners, at the very out set submitted that the petitioners have already acquired more than nine years in service and are eligible to be promoted to the post of Deputy Manager. Mr. Rahim further contended that the respondents with a motive have confined the aforesaid posts by reserving and creating the post of Deputy Manager (sales) which he terms as illegal and without lawful authority. He further submitted that the petitioners have got legitimate expectation to be promoted. Mr. Rahim emphatically stated that the petitioners have a right to be secured in the position and such reservations of the post by the respondent No.3 offends the equality clause as guaranteed under Article 27 of the Constitution. Mr. Rahim finally submitted on the day of issuance of the rule, 13 post have been reserved for the Deputy Manager (sales) out of 114 post and 16 of them are still lying vacant.

8. Mr. Masud Rana Mohammed Hafiz, the learned Advocate appearing for the respondent No.4 submitted that the prospect of service of the petitioners was elaborately discussed at the 475th meeting and 487th meeting of the Board of Directors of the Corporation but the Board of Directors did not take any decision on this matter. He further submitted that the Organogram of the Corporation was declared in accordance with law in 1984 and that since then this Organogram has been in existence.

No change to the said Organogram has been inserted so far.

9. The only question that we are required to resolve is whether by promoting the sales staffs of the corporation to the post of Deputy

639

Manager (sales), the Rules of the Corporation were breached or not. There is no qualm on the contention that none of the instruments, relevant to the Regulation of service of conditions of the employees of the Corporation, make any provision for the post of Deputy Manager (sales), there are posts of Deputy Manager though.

10. It is true equally well that the Organogram of the Corporation, which was brought into being as early as 1984, depicts a post of Deputy Manger (sales). The Jiban Bima Corporation Chakuri Probidhanmala of 1992 is a secondary legislation as it was framed pursuant to power conferred by section 31 of the parent Act, i.e., Jiban Bima Corporation Act of 1973. On the other hand, the Organogram is not blessed with any such legislative status. They were formulated as guidelines only and hence, in the event of any conflict between the Regulations and Organogram, the provision of regulations must prevail. That necessarily follows that Respondents do not have any liberty to create the post of Deputy Manager (sales) and reserve that post for sales staff only. This does not, however, mean that the sale staffs cannot have any promotion prospect under the Service Regulation. They can climb on to the promotional ladder on the basis of equality like any other competing colleagues.

11. The above finding leads us to the irresistible conclusion that the projection of the post of Deputy manager (sales) in the Organogram was in fact in sharp contrast with what have been stipulated in the Service Regulations. That position cannot hence be maintained in law and it cannot be used as a reserved position for sales employees alone.

640

Md. Ruhul Amin and others Vs. Bangladesh and others, (Naima Haider, J. )

12. Moreover, a body created by a statute must act reasonably in the Wednesbury sense. Lord Greene M.R in the evergreen case of Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 K. B. 223 alluded to many grounds of attack which could be made against a decision, citing unreasonableness, bad faith, dishonesty, paying attention to irrelevant circumstances, disregard of the proper decision making procedure and held that each of these could be emcompassed within the umbrella term “reasonableness”.

When reviewing and eventually dismissing the action for judicial review, Lord Greene M.R stated that the courts will not interfere with the discretion assigned to public authorities, provided that •

the corporation, in making that decision, took into account factors that ought not to have been taken into account, or

•

the corporation failed to take into account factors that ought to have been taken into account, or

•

the decision was so unreasonable that no reasonable authority would ever consider imposing it.

13. As observed by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (All ER p. 951 a-b)., a decision will be said to suffer from Wednesbury unreasonableness if it is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it".

14. In the instant case, the authority took into account the factors that they should have

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excluded from consideration and failed to take into such account which they ought to have taken into consideration.

15. It must also not be forgotten that if an authority is to act intra vires, it must conduct itself according to a correct interpretation of law. In Breene v Amalgamated Engineering Union and Others [1971] 2 QB 175, Lord Denning M.R observed, “The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law.” In Re City of Montreal and Arcade Amusement Inc. et al, [1985] 1 S.C.R. 368, the Supreme of Canada observed “the rule of administrative law is that power to make by laws does not include a power to enact discriminatory provision”. In the case in hand, we are constrained to hold that by reserving the posts of Deputy Manager (sales), the authority has acted beyond the scope of law, thereby, discriminating other Deputy Managers standing on the same footing.

16. In view of the discussions narrated above, the Rule deserves to succeed and the same is made Absolute.

17. The finding shall, however, not in any way prejudice the positions of those sales personnel who had already been promoted to the post of Deputy Manager. They shall remain Deputy Manager rather than Deputy Manager (sales).

So far as the petitioners are concerned, they shall also be eligible to be promoted to that post subject, however, to other promotional criteria.

There is, however, no order as to cost.

Ed.

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Md. Aftab Uddin Vs. The State and another (Md. Rezaul Hasan, J.)

HIGH COURT DIVISION (Criminal Miscellaneous Jurisdiction) Ms. Salma Masud Chowdhury, J.

}

Md. Aftab Uddin ...Petitioner.

And } Vs. Mr. Md. Rezaul Hasan, J } The State and another.

Judgment } 07.07.2011 ...Opposite Parties. }

}

Code of Criminal Procedure (V of 1898) Sections 4 (i) (h), 198 and 199 In view of provision of section 4 (i) (h) 198, 199 of the Code, the Magistrate has not taken cognizance of the offence upon a complaint, the impugned proceedings is quashed. Similarly, the impugned order of Magistrate taking cognizance violating the provision of sections 198 and 199 of the Code is also not sustainable in law as a result of which the proceeding is quashed.

The Magistrate, in this case, has not taken cognizance under section 495/497/109 of the Penal Code upon a complaint as defined in a clause (h) of subsection (1) of section 4 of the Code. On the other hand, provisions of the sections 198 and 199 of the Code, both beginning with the words, “No court shall take cognizance of an offence,” except upon a complaint, the ouster of the jurisdiction of the Magistrate to take cognizance of any offence mentioned in section 495 or 198 or 199 of the Code “except upon a complaint” is clear and unambiguous. Hence, we find no difficulty in holding that the cognizance of offence under section 495/497/109 of the Penal Code taken by an order dated 16.09.2001 in Sutrapur Police Station Non-FIR Case No. 295 dated 12.09.2001 is without jurisdiction and the Criminal Miscellaneous Case No. 1175 of 2002.

589

impugned proceeding commenced thereby as well as continuation thereof amount to abuse of the process of the said court, hence liable to be quashed.

Similarly, the impugned order dated 20.11.2001 passed by the Metropolitan Additional Sessions Judge, 1st Court, Dhaka affirming and upholding the order dated 16.09.2001 passed by Magistrate, taking cognizance in violation of sections 198 and 199 of the Code, is wholly misconceived and passed upon clear disregard of the provisions of section 198 and 199 of the Code.

Moharashtra State Board vs PB Seth, AIR 1984 sc 1543=(1984)4 Sec 27; 1987 BLD (AD) 101 ref.

Mr. Md. Mamun Aleem, Adv. --- For the petitioner.

None appear.

--- For the State.

Judgment Md. Rezaul Hasan, J. This rule under section 561A of the Code of Criminal Procedure, 1898 (the Code) has been issued at the instance of the accused No. 3-petitioner calling upon the opposite parties to show cause as to why the impugned judgment and order dated 20.11.2001 passed by the learned Metropolitan Additional Sessions Judge, 1st Court, Dhaka in Metropolitan Criminal Revision No. 484 of 2001 upholding the judgment and order dated 16.09.2001 passed by the learned Chief Metropolitan Magistrate, Dhaka in Sutrapur Police Station Non F.I.R. Prosecution No. 295 dated 12.09.2001 under sections 495/497/109 of the Penal Code arising out of Sutrapur Police Station GD Entry No. 1254 dated 24.12.2000, should not be quashed and/or such other or

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Md. Aftab Uddin Vs. The State and another (Md. Rezaul Hasan, J.)

further order or orders passed as to this Court may seem fit and proper.

2. The facts leading to filing of this application under 561A of the (the Code) briefly are that, one Ekramul Kabri filed a GD Entry at Sutrapur Police Station, being Sutrapur Police Station GD Entry No. 1254 dated 24.12.2000 and the police, upon investigation held with reference to the said GD, filed a non FIR prosecution against the accused petitioner and 2 others, recorded as Sutrapur Police Station Non FIR prosecution No. 295 dated 12.09.2001 under sections 495/497/109 of the Penal Code, alleging inter alia that, one Rokeya Begum, accused No.2, is the wife of Ekramul Kabir, the informant; that the accused No.2 without the consent of the informant got herself married with one Mr. Zakir Hossain, the accused No.1 and is living with him; that the accused No.3 has actively aided in these activities, that the accused No.2 even after her marriage cohabited with said Ekramul Kabir in his hotel suit on 16.09.2000.

3. On receipt of the said Non F.I.R. prosecution, the Chief Metropolitan Magistrate, Dhaka took cognizance against the accused persons under section 495/497/109 of the Penal Code and issued warrant of arrest by an order dated 16.09.2000 of the said court.

4. The accused-petitioners voluntarily surrendered before the said court and was enlarged on bail by an order dated 20.09.2001.

5. Being aggrieved by the aforesaid order dated 16.09.2001, taking cognizance by the Chief Metropolitan Magistrate upon the said Non F.I.R. prosecution, the accused-petitioner filed a Criminal Revision No. 484 of 2001 before the learned Metropolitan Sessions Judge, Dhaka, under sections 435 and 439A of the Code of Criminal Procedure, 1898, which

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was later on transferred to the court of learned Metropolitan Additional Sessions Judge, 1st Court, Dhaka for hearing. After hearing the aforesaid revisional application, the Metropolitan Sessions Judge, 1st Court, Dhaka, by an order dated 20.11.2001, rejected the said revisional petition and affirmed the order dated 16.09.2001 passed by the Chief Metropolitan Magistrate.

6. Being aggrieved by the said order dated 20.11.2001, passed by Mr. M. Hasan Imam, Metropolitan Sessions Judge, 1st Court, Dhaka, the accused-petitioner moved the present petition under 561A of the Code, as a motion, and obtained the instant rule.

7. The learned Advocate Mr. Md. Mamun Aleem, appearing for the accused-petitioner, mainly contends that the Chief Metropolitan Magistrate has erred in law in taking cognizance under section 495/497/109 of the Penal Code against the accused-persons upon a prosecution filed by the police instead of a complaint filed before the Metropolitan Magistrate, as required under the provisions of sections 198 and 199 of the Code. He further submits that, since no complaint was filed as required under section 198 and 199 of the Code so the Magistrate had no jurisdiction cognizance in respect of offences under section 495/497/109 of the Penal Code. Hence, the proceedings pending before the learned Magistrate as well as the impugned order affirming the order of taking cognizance are both without jurisdictions and are liable to be quashed in as much as the same amounts to abuse of the process of the Court. In support of his contention, the learned Advocate has referred before us a case between the State Vs. Ainuzzaman, reported in 1997 BLD (AD) 100.

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Md. Aftab Uddin Vs. The State and another (Md. Rezaul Hasan, J.)

8. None appears to oppose the rule at the time when the rule was taken for hearing.

9. The points for determination in this case is whether taking of cognizance except upon a complaint in respect of offences under section 495/497/109 of the Penal Code, as required under section 198 and 199 of the Code is without jurisdiction and whether the impugned proceedings as well as the impugned order amounts to abuse of the process of the courts below.

10. Heard the learned advocate, perused the application filed under 561A alongwith the annexures submitted therewith.

11. It appears that the opposite party No.2 lodged the GD Entry with Sutrapur Police Station, being No. 1254 dated 24.12.2000 whereupon the police investigated into the matter and filed a non F.I.R prosecution against this accused petitioner and two others, being non F.I.R. prosecution No. 295 dated 12.09.2001 under section 495/497/109 of the Penal Code, where upon the Chief Metropolitan Magistrate, Dhaka, took cognizance and issued warrant of arrest by an order dated 16.09.2000. After obtaining bail from the Magistrate Court the present accused petitioner filed Criminal Revision No. 484 of 2001 under section 435 of the Code, which was heard by the learned Metropolitan Additional Sessions Judge, 1st Court, Dhaka and by an order dated 20.11.2001 he has rejected the revisional application and affirmed the order dated 16.09.2001 of taking cognizance by the Magistrate.

12. We have perused the provisions of section 198 and 199 of the Cr. P. C. of the Code. Upon a mere perusal of section 198 we find that, this section starts with the words, “No court shall take cognizance of an offence” falling under section 493 to 496 of the Penal

591

Code “except upon a complaint……………”

Similarly, section 199 of the Code also starts with the phrase that, “No Court shall take cognizance of an offence under section 497 or section 498 of the Penal Code except upon complaint……” But, so far as the impugned proceeding is concerned we find that the Magistrate has taken cognizance by an order dated 16.09.2001, based on a non F.I.R. prosecution No. 295 dated 12.09.2001 under section 495/497/109 against the accusedpetitioner including the petitioner before us.

Apparently, in the case impugned before us, the cognizance has not been taken by the Magistrate upon a ‘complaint’ as required under the provision of sections 498 and 499 of the Code.

13. Looking at clause (h) of subsection (1) of section 4 of the Code, we find that the word ‘complaint’ has been defined as follows(h) “Complaint”. Complaint means allegation made orally or in writings to a Magistrate with a view to taking action under this Code, that some person whether known or unknown, has committed on offence, but it does not include the report of a police officer. (emphasis supplied) 14. As apparent from the record before us, the Magistrate, in this case, has not taken cognizance under section 495/497/109 of the Penal Code upon a complaint as defined in a clause (h) of subsection (1) of section 4 of the Code. On the other hand, provisions of the sections 198 and 199 of the Code, both beginning with the words, “No court shall take cognizance of an offence,” except upon a complaint, the ouster of the jurisdiction of the Magistrate to take cognizance of any offence mentioned in section 495 or 198 or 199 of the Code “except upon a complaint” is clear and

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Md. Aftab Uddin Vs. The State and another (Md. Rezaul Hasan, J.)

unambiguous. Hence, we find no difficulty in holding that the cognizance of offence under section 495/497/109 of the Penal Code taken by an order dated 16.09.2001 in Sutrapur Police Station Non-FIR Case No. 295 dated 12.09.2001 is without jurisdiction and the impugned proceding commenced thereby as well as continuation thereof amount to abuse of the process of the said court, hence liable to be quashed.

15. Similarly, the impugned order dated 20.11.2001 passed by the Metropolitan Additional Sessions Judge, 1st Court, Dhaka affirming and upholding the order dated 16.09.2001 passed by Magistrate, taking cognizance in violation of sections 198 and 199 of the Code, is wholly misconceived and passed upon clear disregard of the provisions of section 198 and 199 of the Code. Besides, as a revisional court, he has also failed to frame the proper issue in this case and he has also failed to apply his mind to the issues of law raised before him. He ought to have noticed that section 198 and 199 of the Code of Criminal Procedure has provided specific provision regarding filing of complaint in respect of offence under section 495/497 of the Code. The canon of interpretation is that, where under a specific section or a rule a particular subject has received special treatment such special provision will exclude the applicability of any general provision which might otherwise cover the said topic.

This view has been taken in the case of Moharashstra State Board Vs. P.B. Seth reported in AIR 1984, SC 1543 = (1984) 4 SCC 27. But the learned Metropolitan Additional Sessions Judge, 1st Court, Dhaka,

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has utterly failed to appreciate that specific provisions having been made under sections 198 and 199 of the Code for filing complaint in respect of the offences mentioned therein, provision of section 190 of the Code should be read subject to the provision made in sections 198 and 199 of the Code. He has also failed to notice the definition of “complaint” as given under section 4 (1) (h) of the Code and as such came to an erroneous conclusion in affirming the impugned order of cognizance taken by the Magistrate and thereby perverted the course of justice. Besides, his observation made to the effect that “a G.D entry filed by the informant that is the husband of the accused Rokeya Begum”, thereby indicating that the informant is the actual husband of Rokeya Begum, before any evidence were led to establish that the informant is the actual husband, is unwarranted.” It shows his lack of knowledge about the practice and procedure guiding a court. Hence, we are of the view that the impugned order dated 20.11.2001 has been passed by the learned Metropolitan Additional Sessions Judge, 1st Court, Dhaka in clear disregard of law and the same is also liable to be quashed.

16. In a similar case, reported in 1987 BLD (AD) 101, the provisions of section 199 of the Code has been elaborately discussed. In that case, the apex court held that, the bar against taking cognizance of such offence otherwise than upon a complaint is total and complete.

The apex court further declared in that case that, the police report which is submitted on the F.I.R. of the informant was not a complaint within the meaning of the term used in section

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Md. Aftab Uddin Vs. The State and another (Md. Rezaul Hasan, J.)

199 of the Code and upheld the judgment of this High Court Division setting aside the conviction and sentence and acquitting the respondent, the reason being that the cognizance being taken by the learned Metropolitan Magistrate upon police report was illegal, which vitiated the whole prosecution.

17. Accordingly we find merit in this rule and we are of the view that the impugned order dated 20.11.2001, passed in Criminal Revision No. 484 of 2001 by the learned Additional Sessions Judge, 1st Court, Dhaka and the impugned proceedings being Sutrapur Police Station Non FIR prosecution No. 295 dated 12.09.2001 arising out of Sutrapur Police Station GD Entry No. 1254 dated 24.12.2000 both are without jurisdiction and liable to be quashed.

18. Before parting of, we however would recommend the Ministry of Law to review the provisions of section 199 of the Code of Criminal Procedure, 1898, that was enacted long before adopting the Constitution of the Peoples Republic of Bangladesh, guaranteeeing some fundamental rights to each citizen of the country. Whereas, the provisions made in section 199 of the Code of Criminal Procedure, not only tend to reduce a woman to the status of a chattel in the hands of her husband or other person, but renders an unequal treatment to a woman, who is the actual aggrieved person or victim of an offence committed under sections 497 and 498 of the Penal Code, by taking away her individual right to prosecute the offender.

Besides, if the provision of section 199 is allowed to be continued, then husband of a woman can compel her to yield to any sexual harassment to attain his personal gain etc.

Hence, the provisions of section 198 and 199

593

of the Code not only degraded the dignity of a woman, but the same are offending against the fundamental rights of a woman to be treated equally as well as to seek protection of law. Hence, these two sections may either be deleted from the Code or be modified in a way to ensure that the victim or aggrieved women herself can launch a prosecution against a person liable to be prosecuted for committing offence under section 497 and 498 of the Penal Code. Besides, provisions of these section should not be in conflict with the provisions of Nari-O-Shishu Nirjatan Daman Ain 2000 (Act No. VIII of 2000.)

19. In the result the Rule is made absolute.

The impugned judgment and order dated 20.11.2001 passed by the learned Metropolitan Additional Sessions Judge, 1st Court, Dhaka in Metropolitan Criminal Revision No. 484 of 2001 upholding the order dated 16.09.2001 passed by the Chief Metropolitan Magistrate, Dhaka and the proceedings initiated upon Sutrapur Police Station Non F.I.R. Prosecution No. 295 dated 12.09.2001 under sections 495/497/109 of the Penal Code arising out of Sutrapur Police Station GD Entry No. 1254 dated 24.12.2000, pending before the Chief Metropolitan Magistrate, Dhaka, are hereby quashed.

20. The order of stay granted earlier by this court shall stand vacated.

21. All accuseds on bail are released from their respective bail bond.

22. Let copies of this judgment be sent to the Ministry of Law, Justice and Parliamentary Affairs, Bangladesh Secretariat and another copy to the Law Commission, Old High Court Bhaban.

Communicate the order at once to the court concerned for information and compliance.

Ed.

604

Monindranath Biswas Vs. Kantaram Mondal and others (Shahidul Islam, J.)

Code of Civil Procedure (V of 1908) Order VII, rule 3 Order 7, rule 3 of the Code of Civil Procedure got no manner of application in a case of benami declaration of title whenever the identity of the suit land is admitted. …(24) Government of Bangladesh Vs. Sheikh Hasina and others, 60 DLR (AD) 90; 42 DLR 434; 12 MLR (AD) 105; 39 DLR (AD) 236; 35 DLR (AD) 217; Habibur Rahman Vs. Abdul Wadood, 21 DLR 386 and 21 DLR 466, ref.

Mr.Md.Nurul Amin with Mr. Sabya Sachi Mondal ---For the petitioner.

Mr.Abul Kalam Moinuddin with Mr. Munshi Abdul Hamid ---For the opposite.

Judgment Mr. Justice Shahidul Islam 1. This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and decree dated 28.6.1999 passed by the learned Additional District Judge, 1st Khulna in Title Appeal No. 248 of 1992 dismissing the appeal and affirming those dated 7.5.1992 passed by the learned Additional Assistant Judge, 3rd Court, Khulna in Title Suit No. 192 of 1990 should not be set aside and or such other or further order or orders passed as to this Court may seem fit and proper.

2. This Court by order dated 27.10.1999 directed the parties to maintain status quo in respect of possession in the suit properties.

3. The opposite parties as plaintiff instituted Title Suit No. 192 of 1990 in the Court of Additional Assistant Judge, 3rd Court, Khulna seeking for declaration of title in the plaint schedule of land measuring an area of 2.00 acres appertaining to C.S. Khatian No. 5 of

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mouza Badurgacha and the land of C.S. Khatian No. 505 of mouza Bilpabla contending, inter alia, that those lands belonged to Keshab Lal Mondal who gave a proclamation for transfer of those lands and the plaintiff intended to purchase the same.

The defendant’s father Akhil Chandra Biswas was the sister’s husband of the plaintiff and he used to live in the mess of the plaintiff. The plaintiff purchased the said land for his own benefit and by his own money but in the name of Akhil Biswas by a registered kabala deed dated 18.11.1958. Akhil Biswas did not make any payment towards the consideration of the land. It is the specific case of the plaintiff that he purchased the suit land by his own money and got possession thereon. He started possessing the entire purchased land and continued his possession for more than 12 years. During S.A. operation the land was recorded in the name of his name-lender namely, Akhil Chrandra Biswas who died leaving behind the defendant as his only son.

The plaintiff requested him to execute and register a kabala in his name but the defendant refused to executed and registered a deed on 18.10.1981 and as such the suit was instituted on 28.10.1981 seeking for declaration of title simplicitor in the suit land.

4. The defendant No. 1 contested the suit by filing written statement denying the material averments made in the plaint and contending, inter alia, that his father Akhil Chandra Biswas purchased the suit land by a registered kabala deed, executed on 18.11.1958 and registered on 24.11.1958 by his own money and started possessing through borgader. The S.A. record was prepared in his name. It is his case that the defendant used to pay rent through his

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Monindranath Biswas Vs. Kantaram Mondal and others (Shahidul Islam, J.)

maternal uncle’s son (plaintiff’s son). His father died leaving him the only son and he started possessing the land through bargader and he continued possession for more than 12 years. It is the further case of the defendant that the plaintiff is his full maternal uncle. The plaintiff’s brother Hori Krishna Mondal and the plaintiff used to live in a joint mess till the liberation war was taken place and the plaintiff was the head of the joint family. The defendant used to take help of Hori Krishna Mondal in the case of payment of rent and used to keep custody of the rent-receipts with Hori Krinshna Mondal. The plaintiff did never purchase the suit land by his own fund and did never possess the same. With these averments he prayed for dismissal of the suit.

5. The trial was taken up by the learned Assistant Judge, Additional Court No. 3, Khulna who framed the following issues:(i)

Is the suit maintainable in its present form?

(ii)

Is the suit barred under section 42 of the Specific Relief Act?

(iii)

Has the plaintiff any title and possession in the suit land?

(iv)

Is the plaintiff entitled to a decree declaring title or is entitled to any other relief?

6. The plaintiff examined himself as PW1 and examined one Satish Chandra Mondal as PW2 and examined the executants of the kabala deed dated 24.11.1958 as PW3. The defendant examined him as DW1 and one Nalini Kanta Kabiraj, an attesting witness of the deed was examined as DW2 and Kali Pada Mondal was examined as DW3.

7. The learned Assistant Judge upon taking into consideration the entire evidence on

605

record came to a finding that the plaintiff himself purchased the suit land by his own fund and for his own benefit and found the possession of the plaintiff in the suit land and declared the title of the plaintiff in the suit land by the judgment and decree dated 7.5.1992.

8. Being aggrieved by the said judgment and decree the defendant preferred Title Appeal No. 192 of 1990 and that appeal was heard by the learned Additional District Judge, 1st Court, Khulna who after making vivid discussions of the evidence on record subscribed the same view with the learned Assistant Judge and came to a finding that the plaintiff purchased the suit land by his own fund and in the benami of the defendant’s father and further found that the 4 ingredients of acquisition of property in the benami have been proved by the plaintiff by adducing evidence and thereby dismissed the appeal and affirmed the judgment and decree of the trial Court by the impugned judgment and decree dated 28.6.1999.

9. Being aggrieved by the impugned judgment and decree the defendant has obtained the instant Rule.

10. Mr. Md. Nurul Amin, the learned Advocate appeared with Mr. Sabya Sachi Mondal, the learned Advocate for the defendant petitioner. Mr. Md. Nurul Amin took this Court through the judgments of the Courts below and submitted that the Courts below proceeded with the disposal of the suit upon the question of benami declaration although no prayer for benami declaration was made in the plaint.

11. Mr. Abul Kalam Mainuddin, the learned Advocate after coming to understand that no prayer for benami declaration was prayed for in the plaint made a prayer to this Court to

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Monindranath Biswas Vs. Kantaram Mondal and others (Shahidul Islam, J.)

allow the opposite party an opportunity to come up with a prayer for amendment of plaint only incorporating a prayer for benami declaration. Although the matter was head in full and the date for delivery of judgment was fixed on 16.7.2012 but upon considering the evidence on record as well as prayer made by Mr. A. K. Mainuddin, the date of delivery of judgment was deferred to 29.7.2012 allowing a scope to the plaintiff to amend his plaint. On 29.7.2012 the plaintiff opposite party submitted an application seeking for amendment of plaint only by incorporating an additional prayer seeking benami declaration as well as paying ad volerum Court fees. The copy of the application for amendment of plaint was supplied earlier to the learned Advocate for the petitioner and the defendant petitioner also submitted a counter affidavit on 29.7.2012. The matter was taken up for delivery of judgment was just at the 4 P.M and Mr. Md. Nurul Amin made a prayer for shifting the date for delivery of judgment and accordingly the date was shifted to 31.7.2012.

Today the matter has appeared in the list for delivery of judgment. Mr. Md. Nurul Amin took part in the hearing afresh and he submitted that the prayer for amendment of plaint is at too belated stage and as such the same is barred by limitation. Secondly he submitted that the intention of acquiring the property in the benami is absent in the plaint and as such the amendment cannot be allowed to fill up lacuna. With these submissions he prayed for rejection of the application for amendment of plaint.

12. Mr. Abul Kalam Mainuddin, the learned Advocate appearing for the opposite party on the other hand submitted that the plaintiff has categorically stated in the plaint that the property was acquired by the plaintiff in the name of the defendant`s father as he was the

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plaintiffs sister’s husband and was a trustworthy man to the plaintiff and as such the property was acquired in the name of the defendant’s father. He submitted that since the Courts below have found concurrently the possession of the plaintiff in the suit land as well as payment of consideration was made by the plaintiff, the question of limitation as raised by the learned Advocate for the petitioner does not bear any merit. With these submissions he prayed for allowing amendment of plaint.

13. I have gone through the plaint statements very carefully. At paragraph 2 of the plaint the plaintiff has specifically mentioned the intention of his acquiring the property in his benami and in the name of defendant father which is reproduced hereunder:-

“2| D³ †Kve gÛj Z`xq mZvs‡ki RwgRgvq mZ¡evb `LwjKvi _vKv Kvwjb wb¤œ Zckxj ewY©Z RwgRgv weµq Kwievi †NvlYv Kivq evw` Zvnv Rvwb‡Z cvwiqv wbR A‡_© I m¦v‡_© bM` UvKv cÖ`v‡b Lwi` K‡ib| Lwi` Kvwjb D³ Rwg wbR wek¦vm fvRb AvZgxq G¶‡b g„Z AwLj P›`ª wek¦v‡mi †ebv‡g Lwi` K‡ib| AwLj P›`ª wek¦vmB wb‡Ri †Kvb A_© m¦v_© mskÖe D³ Lwi`v Rwg Rgvq wQj bv ev bvB| evw` D³ Rwg †Kke gÛj Gi wbKU nB‡Z 18/11/58 Zvwi‡L mwn m¤cv`b †iwRwóª Kwiqv j‡qb| D³ iƒc Lwi‡`i ci evw` ‡Kve gÛj Gi wbKU nB‡Z `Lj cÖvß nBqv Zvnv‡Z Pvl KviwKZ Kwiqv dmjvw` DZcv`‡b Mªn‡b LvRbvw` Av`vq w`qv `LwjKi Av‡Qb| †mKviY Lwi` Kvj ZK& `LwjKvi _vKvq mK‡ji ÁvZmv‡i wei“× m‡Z¡ `LwjKvi Av‡Qb Ges Øv`j e‡lBi Da©Kvj wei“× `Lj RwbZ DËg mZ¡ AR©b Kwiqv‡Qb|” 14. It further appears that at paragraph 3 and 4 of the plaint the plaintiff has made specific statements about the mode of his possession

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Monindranath Biswas Vs. Kantaram Mondal and others (Shahidul Islam, J.)

and payment of rent and the reasons for filing the suit which are reproduced hereunder:-

“3| Gm.G. LwZqvb `wjj wjwLZ e¨K&wËi bvg Abymv‡i nq| wKš‘ Dnv mwVK Ae¯’vi cwiPvqK b‡n| LwZqv‡b AwLj wek¦v‡mi bv _vwK‡jI LvRbvw` evw` wb†R I KLbI Zvnvi cyÎ gvidZ eivei Av`vq †`b| 4| DKZ AwLj wek¦vm g„Z nBqv‡Qb| evw` DKZ Rwg Rgvq mZ¡evb `LwjKvi Av‡Qb| G¶‡Y D³ AwLj wek¦v‡mi Iqv‡ik 1bs weevw` D³ Rwg Rvq evw`i mZ¡ `Lj Am¦xKvi Kwiqv DKZ m¤cwË `vex Kwi‡Z‡Qb| MZ Bs 18/10/81 Zvwi‡L cÖKv‡k¨ Zckxj Rwg Rgv Zvnvi wbR m¤cwË ewjqv cÖKvk Kwiqv‡Qb| †mKvi‡Y evw` evZ©gvb ‡gvK`©gv `v‡qi Kwi‡Z eva¨ nB‡jb|” 15. Upon considering the statements as made in paragraph 3 and 4 as well as the evidence on record and the findings of the Courts below I find that due to inadvertence or ignorance of the filing Advocate for the plaintiff the prayer for benami declaration was not incorporated in the plaint although the plaintiff has founded his claim on the benami declaration. From the statements made in the written statement it appears that the defendant at paragraph 13 and 14 also has taken defence as against the benami claim as made out by the plaintiff.

Taking into consideration the entire facts and circumstances as well as the statements made in the plaint and written statement and the findings of the Courts below, I have no doubt but to hold that the plaint was founded upon the claim of benami declaration but the learned Advocate for the plaintiff inadvertently omitted to incorporate the prayer for benami declaration. Mere incorporation of a prayer for benami declaration in the plaint, by way of amendment will neither change the nature and character of the suit nor will take away any right of the defendant as the defendant had already contested the suit upon the question of benami acquisition of property by the plaintiff,

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in the trial Court as well as in the lower appellate Court. Order VI Rule 17 of the Code of Civil Procedure provides the provisions for allowing amendment of plaint to determine the real question of controversy. Here in the instant case, I find, that the prayer for amendment of plaint as made by the plaintiff opposite party is essential only to decide and dispose of the matters in controversy as the evidence on record adduced by the plaintiff supported the fact of benami declaration, particularly the PW3 being the seller of the property, on oath adduced before the Court that he received consideration money of the suit land from the plaintiff and handed over possession of the same in favour of the plaintiff. In view of the above I am inclined to allow the prayer for amendment of plaint. The application for amendment of plaint is allowed. The said application for amendment of plaint do form part of the plaint.

16. After allowing the prayer for amendment Mr. Md. Nurul Amin, the learned Advocate for the petitioner formulated the following points of argument:i)

the suit is barred under Order VII Rule 7 of the Code of Civil Procedure;

ii) no claim was made regarding benami transaction or benami acquisition of property and as such the suit is barred. In support of his contention he referred to the case law of Government of Bangladesh –v- Sheikh Hasina and others, reported in 60 DLR (AD) 90; iii) the suit is also barred under Order VII Rule 3 of the Code of Civil Procedure. He submitted that the land as shown in the schedule are

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Monindranath Biswas Vs. Kantaram Mondal and others (Shahidul Islam, J.)

not specifically demarcated; in support of his contention he referred to the case law reported in 42 DLR (HCD) 434 and 12 MLR (AD) 105; iv) the evidence of DW2 was not at all considered by either of the Courts below and the petitioner has submitted a supplementary affidavit before the Court taking a ground that the evidence of DW2 was not considered; v) in case of benami declaration the plaintiff must ask for consequential relief seeking recovery of khas possession; in support of his contention he relied upon the case law of Md. Yunus –v- Yousuf, reported in 21 DLR 466; vi) the evidence of PW3, the seller of the land is inadmissible under section 92 of the Evidence Act; vii) the contents of the deed cannot be varied or altered; viii)

the suit is barred by limitation;

ix) the plaintiff must prove his own case and he cannot take any advantage upon the weakness of the defendant; in support of his contention he relied upon the case reported in 39 DLR (AD) 236.

17. Mr. Abul Kalam Mainduddin, the learned Advocate simply submitted that the questions raised by Mr. Md. Nurul Amin have already been answered by the Courts below in their judgments and the evidence on record are enough to decide the question of benami. He further submitted that the suit is neither barred under Order VII Rule 3 of the Code of Civil

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Procedure nor barred by limitation. He submitted that the plaintiff has proved his own case of acquisition of property in the benami and in the name of the defendants father beyond doubt. He prayed for discharge of the Rule.

18. Let us take up the question of limitation first, as to whether the suit is barred by limitation?

19. From the plaints statements as made out in paragraph 2, 3 and 4 which have been quoted in the forgoing paragraphs, it appears that, the plaintiff made specific statements that the property was acquired by him and by his own fund and in the name of the defendant’s father who was the plaintiff’s sister’s husband.

From the plaints statements it appears that the defendant’s father used to live in the mess of the plaintiff and after the death of the defendants father the plaintiff approached to the defendant on 18.10.1981 for transferring the land in his name but that was denied and the suit was instituted on 28.10.1981. The PW3 being the seller of the suit land admitted on oath before the Court that the plaintiff himself paid the consideration money and purchased the suit land in the name of defendant’s father by adducing the following evidence:-

“Avwg D³ Rwg ev`x Kvš— iv‡gi wbKU weµq K‡iwQjvg, Bs‡iRx 24-11-58 Zvwi‡L `vZv wnmv‡e `wjj †iwRóªx nq, `wjj m¤cv`b nq 18Ð11Ð58 Zvwi‡L| Avwg `vZv wnmv‡e `wjj m¦v¶i Kwi| bvt Rwg eve` `wj‡ji UvKv cqmv ev`x Kvš— ivg Avgv‡K w`qvwQj| `wjj MªnxZv AwLj P›`ª wek¦vm Avgv‡K †Kvb UvKv cqmv cÖ`vb K‡iwQj bv| bvt Rwg †Kbv †ePvi e¨vcv‡i AwLj P›`ª wek¦v‡mi ms‡M †Kvb K_vevZ©v n‡qwQj bv|” Those evidence have not been controverted or shaken by the defendant during crossexamining him. With regard to possession the

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Monindranath Biswas Vs. Kantaram Mondal and others (Shahidul Islam, J.)

defendant could not adduce any reliable evidence. On the other hand the plaintiff produced rent-receipts showing payment of rent and adduced evidence in support of his possession. The rent-receipts are document of possession and collateral evidence of title is the settled law and that has been settled in 35 DLR (AD) 217. In view of the above I find that the question of limitation as raised by Mr. Md. Nurul Amin the learned advocate for the petitioner is misconceived I hold that the suit was not barred by limitation.

20. Let us take up the second point for decision as raised by Mr. Md. Nurul Amin as to whether the suit is barred under Order VII Rule 7 of the Code of Civil Procedure?

21. Order 7 Rule 7 of the Code of Civil Procedure runs thus:“7. Every plaint shall state specifically the relief which the plaintiff clams either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.”

22. Upon a careful perusal of the provisions of Order 7 Rule 7 of the Code of Civil Procedure it appears that the plaintiff in filing a suit should seek relief specifically in the plaint and the court is also empowered to grant any relief as it things fit to the same extent as if it had been asked for. Upon careful perusal of the plaint it appears that the plaintiff has founded his whole claim seeking acquisition of property by his own fund and in the name of defendant’s father. In the plaint it has been mentioned that the plaintiff, for the benefit of his own has purchased the suit land by his own money and in the name of the defendant’s

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father as he was trustworthy to the plaintiff and the defendant was living in his mess. It has been specifically stated that the plaintiff himself had paid rent sometimes by himself sometimes through his son and has been possessing the property by himself for more than 12 years, consequently acquired title in the suit land adversely against the defendant.

The PW1 in his evidence substantiated his fact of physical possession by adducing oral evidence as well as by producing rent-receipts exhibit-2 series and that fact of possession was supported by PW3, the vendor of the deed and the PW2. The evidence of possession as adduced by the defendants is much weaker in type than that of the plaintiff. The plaint although did not contain any relief with regard to benami declaration but the trial Court in framing the issue No. 4 took into consideration that whether the plaintiff is entitled to any other relief or reliefs.

23. Upon a careful reading of Order VII Rule 7 of the Code of Civil Procedure it appears that the plaint shall state specifically the relief which the plaintiff claims either simple or in alternative and it shall not be necessary to ask for general or other relief which is always be given as the Court may think just to the same extent as if it had been asked for. From the plaint it is clear and unambiguous that the plaintiff instituted the suit seeking benami declaration specifically, elaborately and without any ambiguity but the learned Advocate who drafted the plaint had inadvertently missed to add the prayer for benami declaration although the case of benami acquisition of property was made out in the plaint and the plaintiff adduced evidence claiming accusation of the suit property by his own fund and in the benami of the defendants father. Whenever the plaint`s statements made out a case of benami acquisition of property

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Monindranath Biswas Vs. Kantaram Mondal and others (Shahidul Islam, J.)

and that was proved by sufficient evidence, a court of law should not hesitate to decree the suit following the provision of order 7 Rule 7 of the Code of Civil Procedure although no prayer for benami declaration was incorporated in the plaint order. 7 Rule 7 of the code has given a court enough power to grant relief which the plaintiff or defendant claims.

In the instant case the relief was claimed but the prayer portion was not specifically written which was a mere mistake. In view of the above, the submissions as made by Mr. Nurul Amin does not bear any merit and the case law referred to above in the case of Government of Bangladesh –v- Sheikh Hasina, reported in 60 DLR (AD) 90 paragraphs 44 and 46 got no relevancy or any manner of application in the instant case and accordingly, the point so raised is answered negatively against the defendant petitioner.

24. Let us take up the ground No. 3 as to whether the suit is barred under Order 7 Rule 3 of the of Civil Procedure Code. I have gone through the plaint. It appears that the plaintiff has sought for a declaration of benami acquisition of the suit property measuring 1.07 acres of land out of 4.25 acres of land of Khatian No. 5 and 93 acres of land out of the land of Khatian No. 505. The defendant did not deny the identity of the case land as given in the plaint. The schedule of property as described in the plaint is admitted by the defendant. This point in issue was not raised before the trial Court or before the appellate Court. Since the suit was instituted upon the question of benami declaration and after amendment of plaint and on paying ad volerum Court fees the point so raised by Mr. Md. Nurul Amin has become unworthy of consideration inasmuch the scope and

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application of order 7 Rule 3 in a case of benami declaration got no manner of application. In such a case the relevant points are the relationship between the parties, intention of acquisition of property in the benami of the defendant. Subsequent conduct with regard to possession of the suit property payment of consideration and the possession of the title deed. Those essentials are subject to proof by plaintiff adducing evidence. In view of the above the point so raised is decided negatively. The case law reported in 42 DLR (H.D) 434 and 12 MLR (A.D) 105 have got no manner of application in the instant cases.

25. Whether the evidence of DW2 was not at all considered? The DW2 is the attesting witness of the deed dated 28.11.1958. The PW3 being the vendor / seller came before the Court and adduced on oath that he himself had a talk of sale with the plaintiff for transferring the suit land and received payment of consideration from the plaintiff and he had handed over possession in favour of the plaintiff. That evidence remained unshaken.

The evidence of seller (PW3) is the best evidence in the suit whenever the evidence of PW3 is found to be the best evidence, the evidence of attesting witness namely the evidence of DW2 losses its weight and does not carry any evidentiary value inasmuch as an attesting witness should not supposed to know the contents of the deed and the mode of payment of consideration by the plaintiff or the defendant. He is simply an attesting witness.

An attesting witness is simply an witness to the due execution of the deed by the executant.

He is bear a witness to the deed. In the case law of Habibur Rahman v.s Abdul Wadood

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Monindranath Biswas Vs. Kantaram Mondal and others (Shahidul Islam, J.)

reported in 21 DLR Page 386 it has been held that an attesting witness of a document is not supposed to know the contents of the deed or anything else witness to the payment of consideration is best known by the executant of the deed. The PW.3 being the seller of the suit land is the best witness as he recieved the consideration. In view of the above, the point so raised by Mr. Md. Nurul Amin does not bear any merit.

26. Let us take up the point NO. V for decision as to whether in a suit for benami declaration the plaintiff is required to pray for consequential relief as referred to above in the case law of 21 DLR 466. I have gone through the said decision. In the plaint of that case law it was specifically stated that the plaintiff was out of possession at the time of institution of the suit but in the instant case the plaintiff has asserted his possession in the suit land and proved his possession by adducing oral evidence as well as documentary evidence. So the case law referred to above does not have any manner of application in the instant case.

Moreover the plaintiff has paid ad volerum Court fees before this Court. The possession of the plaintiff has already been decided by both the Courts below concurrently and as such the point so raised by Mr. Nurul Amin does not have any leg to stand, accordingly and answered negatively.

27. Now let us take up the point No. VI as to whether the evidence of PW3 is inadmissible under section 92 of the Evidence Act? Section 92 of the Evidence Act runs thus: “92. Exclusion of Evidence of oral Agreement - When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of document, have been proved according to the

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last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:�

I have gone through the section 92 of the Evidence very carefully. Section 92 of the Evidence Act has been introduced by the legislature not to contradict or vary or to add or to subtract anything from any written contract, grand or document. In the instant case, the case is otherwise. In the instant case the plaintiff has instituted a suit only for a declaration that he is the real purchaser of the suit land on the strength of the kabala deed dated 28.11.1958 and the defendants father is his name-lender. The plaintiff has not made out any case contradicting or varying or adding or subtracting any statements as made in the deed. In view of the above the point as raised

by Mr. Nurul Amin is misconceived and the point is answered negatively as against the petitioner. To declare or decide a transaction as benami or acquisition of property in the benami the following are the essentials which got to be proved by the plaintiff by adducing evidence:i)

the custody of document by which the property was acquired;

ii)

motive of acquisition of property;

iii) source of purchase money; iv) possession of the parties; v) the relationship between them; vi) subsequent conduct between the parties relating to enjoyment of the suit land.

28. Let us take up the point to decide the question of custody of document.

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Monindranath Biswas Vs. Kantaram Mondal and others (Shahidul Islam, J.)

From the record it appears that document was produced by the plaintiff and that was marked as exhibit-1 and as such the first essential has been proved in favour of the plaintiff.

29. Let us take up the point to decide as to the motive of acquisition of property in the benami of the defendant’s father.

In the plaint it has been specifically stated that the defendant’s father was the sister’s husband of the plaintiff and the plaintiff purchased the said property in the benami of defendant by his own money. During cross-examination to the PW1 added the following evidence:-

“cvwK¯—vb Avg‡j eo fvB‡qi bv‡g Rwg _vwK‡j †QvU fvB cvB‡e g‡b Kwiqv fwMœcwZi bv‡g Rwg wK‡bwQjvg|” That evidence was not denied From the above undenied evidence it appears that the plaintiff had another brother and as such the motive of acquisition of property in the benami has been explained very clearly.

On the other hand DW1 in his evidence adduced the following:-

“bvwjkx `wj‡ji mgq Avgvi 10/12 eQi eqm wQj| Avwg ZLb bvevjK wQjvg| `wj‡ji mgq Avwg †iwRwóª Awd‡m Dcw¯nZ wQjvg bv| KLb, †Kvb mgq Kvnvi m‡½ bvwjkx `wjj †ePv‡Kbv K_v nq †m m¤c‡K© Avgvi †Kvb e¨w³MZ Ávb bvB| Avgvi bvwjkx `wj‡ji UvKv cqmv Av`vb cÖ`vb m¤c‡K© Avgvi †Kvb e¨w³MZ Ávb bvB|” From the evidence as quotted above it is very clear that the evidence of PW1 has given a satisfactory explanation about his motive of acquisition of property in the benami but the defendant failed to adduce any evidence contrary to the motive of acquisition of property by the plaintiff. The second essential is decided in favour of the plaintiff.

30. Let us take up the 3rd essential as to the source of purchase money for acquisition of property.

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The PW1 in his examination-in-chief has added that he himself had paid the consideration money and the father of the defendant had no fund of his own by adducing the following evidence:-

“Avgvi fwMœcwZ Rwgi c‡Yi UvKv cÖ`vb K‡i bvB| Avwg wbR Znwej n‡Z UvKv cÖ`vb Kwi|” Those evidence were not shaken during crossexamination. On the other hand the DW1 in his cross-examination added that he did not know about the payment of consideration by adducing the following evidence:-

“Avgvi bvwjkx `wj‡ji UvKv cqmv Av`vb cÖ`vb m¤c‡K© †Kvb e¨w³MZ †Kvb Ávb bvB| 1918 m‡b Avgvi evev c„_K A−æ evm KwiZ wKbv Avwg Rvwbbv|” From this evidence it appears to this Court that the payment of consideration was made by the plaintiff. From the evidence of PW1 it appears that the plaintiff had 35/40 bighas of landed property at the time of purchasing the suit land by adducing the following evidence in his cross-examination:-

“bvwkjx `wj‡ji mgq Avgvi 35/40 weNv Rwg wQj| Avgvi fwMœcwZ AwLj P‡›`ªi 7/8 weNv Rwg wQj|” From those evidence it has been clearly proved that the payment of consideration money was made by the plaintiff. Accordingly this point is decided in favour of plaintiff opposite party.

31. Let us take up the point, the relationship between the parties and subsequent conduct between the parties relating to enjoyment of the suit land.

Already I have seen that admittedly the plaintiff was the brother of the wife of the defendant’s father and the defendant’s father was the sister’s husband of the plaintiff. The defendant was the i¡N£e¡ of the plaintiff. During cross-examination it has been admitted by the DW1 that the defendant’s father was in the

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Monindranath Biswas Vs. Kantaram Mondal and others (Shahidul Islam, J.)

mess of the PW1 at the time of acquisition of property. I have already seen that the evidence adduced by the defendant do not support the defendant’s possession. It was the case of the defendant that he possessed the suit property through bargader. No bargader come forward to support the possession of the defendant. The exhibit-2 series rent receipts 10 in numbers proved it beyond doubt that the plaintiff paid rent till 1980 and the suit was instituted in 1981. Thereafter the defendant paid rent for 1981 and 1983. The evidence of possession if read together with exhibit-2 series those proved it beyond doubt that the Courts below have rightly found possession in favour of the plaintiff. The PW1 has added that the defendant’s father being his sister’s husband was his trustworthy person and as such he acquired the property in the name of defendant’s father. Since the defendant No. 1 knew nothing about the purchase of the suit land as he was minor and Since the evidence on record supported the possession of the plaintiff I have no hesitation but to hold that the suit land was acquired by the plaintiff in the name of the defendant and the defendant’s father was the name-lender of the plaintiff.

32. After pronouncement of judgment Mr. Nurul Amin submitted that after allowing amendment of plaint the defendant is entitled to submit an additional written statement and the suit may be sent back on remand. Since the parties to the suit started contesting the suit on the issue of benami acquisition of property and adduced evidence to the best of their satisfaction and since no new case has been made out by the amendment of plaint, I am of the view that although the defendant is entitled to submit additional written statement but that is not essential in the instant case as there is nothing to improve the defendants case by adducing further evidence inasmuch as both the parties to the litigation adduced evidence in support of their own case.

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33. If the suit is sent back on remand that would not serve any fruitful purpose for deciding the matter in controversy. Only a relief seeking benami declaration has been added by way of amendment of plaint. No new fact has been incorporated in the plaint changing the nature of the suit or taking away any right of the defendant. In view of the above the prayer for remand of the suit is rejected.

34. In view of the above there is no necessity of submitting any additional written statement.

The question of filing additional written statement comes in whenever any new fact is incorporated and a new case is made out and in that case it is essential for the ends of justice to allow the defendant to submit additional written statement and to adduce more evidence.

But in the instant case the evidence on record are enough to decide the matter in controversy.

Both the Courts below have proceeded with the disposal of the suit and appeal upon the question of benami declaration. The decision of the courts below are concurrent upon the factual aspects of the case.

35. From the facts and circumstances of the case and the discussions made above I find that the Courts below committed no error of law resulting error in the decision and occasioning failure of justice. I find no merit in the Rule.

36. In the result, the Rule is discharged, however, without any order as to costs. The impugned judgment and decree dated 28.6.1999 passed by the learned Additional District Judge, 1st Court, Khulna in Title Appeal No. 248 of 1992 dismissing the appeal and affirming those dated 7.5.1992 passed by the learned Additional Assistant Judge, 3rd Court, Khulna in Title Suit No. 192 of 1990 are hereby affirmed. The order of status quo granted earlier by this Court stands vacated.

37. The office is directed to send the lower Court’s record.

Ed.

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Government of Bangladesh Vs. amal Krishna Datta (Shahidul Islam, J.)

HIGH COURT DIVISION

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State Acquisition and Tenancy Act (XXVII of 1951) (Civil Revisional Jurisdiction) Section 28 of Mr. Shahidul Islam, J. } Government Since there is no document to show that the Bangladesh Judgment plaintiff’s father was a servant under the } ...Defendant 25.01.2012 Petitioner. Ex-landlord but the father of the plaintiff } after taking permission from the ExVs. } landlord constructed his homestead about Amal Krishna Datta 69 years ago as has been proved by Pws 1 } ... Plaintiff-opposite and 2 for which the said possession will be parties. treated as permissive possession. The government has failed to adduce any Specific Relief Act ( I of 1877) evidence. If such possession is accepted to Section 42 be a servant under the Ex-landlord then In the instant case the plaintiff has not section 28 of the SAT Act comes in aid to stated in his plaint that his title was ever decide the right of the plaintiff. The denied by the defendant. The suit for government under the provisions of section declaration of title was filed only for the 28 of the SAT Act can assess the rent for the cause of non-recording the plaintiff`s name suit land. in the ROR. Since there is no specific document of title showing accrual of title of Salma Khatun –v- Zilaparishad Chittagong, 4 the plaintiff in the suit land, the appellate MLR (AD) 361; Guman Singh –v- Pyarellal Court was not justified in declaring title in and others, 117 IC 224; Jagat Singh and others the suit land. …(20) –v- District Board, Amiritasan, AIR 1940 Lahore 509 ref.

Easement Act (V of 1882) Mr. Md. Abdur Rahman Howlader, A.A.G. Section 60 (b) ---For the petitioner.

Since the construction of the plaintiff has been proved and that construction having Mr. H.N. Nandy with made prior to the State Acquisition and Mr. Subrata Saha and Tenancy Act came into operation and the Mr. Kamal Hossain homestead being permanent in nature, the ---For the Opposite Parties plaintiff is entitled to retain his possession in Judgment the said homestead as per section 60(b) of the Easement Act. The defendant has Mr. Justice Shahidul Islam: stepped into the shoes of Ex landlord. The Ex landlord being the owner of the suit 1. The Rule was issued calling upon the property did not take any step for eviction of opposite party to show cause as to why the the plaintiff from the suit land rather impugned judgment and decree passed by the rd Court allowed him to reside in the said homestead. learned Sub-ordinate Judge, 3 Mymensingh in Other Class Appeal No. 166 of …(26) 1994 reversing the judgment and decree passed by the learned Senior Assistant Judge, Sadar, Civil Revision No. 541 of 1996.

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Government of Bangladesh Vs. amal Krishna Datta (Shahidul Islam, J.)

Mymensingh in Other Class Suit No. 219 of 1991 should not be set aside and / or such other or further order or orders passed as to this Court may seem fit and proper.

2. The opposite party as plaintiff instituted Other Suit No. 219 of 1991 in the Court of learned Senior Assistant Judge, Mymensingh seeking for declaration of title in the land appertaining to C.S. Khatian No. 95, C.S. Plot No. 1151, ROR No. 700, ROR plot No. 4971 measuring an area of .0574 ajutangsha within mouja Mymensingh under P.S. Kotwali District-Mymensingh contending, inter alia, that the said land belonged to Shasikanta Acharjaya Chowdhury, the landlord of Muktagacha Estate. The plaintiff’s father named Aboni Kanta Dutta was a Tahshildar of the said Estate who in liue of his service prayed for getting the suit land for construction of his dwelling house and that prayer was allowed.

The plaintiff’s father constructed a homestead upon the suit land and started living therein.

The Jamindar used to pay 50% of his salary and the rest 50% of salary was being adjusted towards the valuation of the suit property. This way the plaintiff’s father started possessing the suit land and homestead. The plaintiff’s father died in 1960 and since then the plaintiff has been possessing the same. The ROR record was wrongly prepared in the name of Pritimoni Basu. The plaintiff came to know about the said wrongly prepared ROR record on 6.4.1991. By that wrong ROR record there cast a cloud upon his title.

3. It is the further case of the plaintiff that the landlord Shashikanta handed over possession in favour of the plaintiff’s father without fixing any rent and that remained a rent free land till the acquisition of the rentreceiving interest by Government. Thereafter the plaintiff’s father submitted several prayers

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to the Government for fixing rent but in vain.

The plaintiffs also prayed to the Government on different occasions for fixing rent of the suit land but with no result. The plaintiff is entitled to retain possession and the defendant Government is liable to fix rent against the suit land. The plaintiff got the certified copy of ROR on 7.4.1991 and thereafter filed the suit on 7.7.1991 seeking for declaration of title in the suit land.

4. The Government contested the suit by filing written statement, denying the plaintiff’s case as well as the plaintiff’s possession and specifically bringing out a case that the suit land belonged to Shashikanta, Jamindar of Muktagacha Estate. After the rent-receiving interest was acquired by Government the suit land was vested with the Government automatically. The 2nd case was brought out that the ROR record was prepared in the name of Pritimoni and she migrated to India before 1965 and the suit land was vested with the Government as being vested property.

5. The learned Assistant Judge framed the following issues:(i) Is the suit maintainable as it stands frame? (ii) Has the plaintiff any right, title, interest and possession in the suit land? (iii) Is the plaintiff entitled to a decree for declaration of his title in the suit land? (iv) What relief if any the plaintiff is entitled to?

6. To prove the case, the plaintiff examined 4 witnesses but failed to produce any documentary evidence to prove his title in the suit property.

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Government of Bangladesh Vs. amal Krishna Datta (Shahidul Islam, J.)

7. The Government only cross-examined the plaintiffs witnesses but failed to adduce any oral or documentary evidence to prove that the suit property was ever taken over by Government as vested property or was vested with the Government. The learned Assistant Judge by the judgment and decree dated 2.5.1994 dismissed the suit against which the plaintiffs preferred Other Appeal No. 166 of 1994. That appeal was heard by the learned Sub-ordinate Judge, 3rd Court, Mymensingh who by the impugned judgment and decree dated 29.3.1995 allowed the appeal, set aside the judgment of the trial Court and decreed the suit declaring title of the plaintiff in the suit land.

8. Being aggrieved by the said judgment and decree the Government being represented by the Deputy Commissioner, Mymensingh has obtained the instant Rule.

9. Mr. Md. Abdur Rahman Howlader, the learned Assistant Attorney General appeared for the petitioner and Mr. Subrata Saha with Mr. Kamal Hossain, the learned Advocates appeared for the plaintiff opposite parties.

10. During hearing, Mr. H. N. Nandy and Mr. M. Shamsul Hoque, the learned Advocates participated the hearing to help the plaintiff opposite parties of the Rule.

11. Mr. Md. Abdur Rahman Howlader, the learned Assistant Attorney General taking me through the judgments of the Courts below and referring to the evidence on record submitted that the plaintiff has miserably failed to produce any documentary evidence to prove his title in the suit property. He submitted that the oral evidence adduced by him are not sufficient to construe any title in the suit land.

He further submitted that there are lot of contradictions in the evidence of the PWs regarding the question of title and possession as well. He further submitted that the learned Assistant Judge after considering the evidence on record has dismissed the suit lawfully but the Court of appeal without reversing those

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finding has decreed the suit illegally. He prayed for setting aside the appellate Court’s judgment and for maintaining the trial Court’s judgment.

12. Mr. Subrata Saha, the learned Advocate submitted that the plaintiff although failed to produce any documentary evidence in support of his plaint’s case but he was able to prove the fact that his father constructed a homestead upon the suit property at least 65 years prior to the filing of the suit and as such there accrued good title in favour of the plaintiff, after lapse of 65 years. He prayed for maintaining the impugned judgment and decree. Mr. H. N. Nandy on the other hand submitted that during the British regime there was a practice prevailing amongst the Jamindars that they used to allow their employees to use and occupy lands without fixing any rent and as such the “Crowns Grants Act, 1895” was promulgated. He further submitted that the suit land was handed over by Jamindar in favour of the plaintiff’s father under the said law and the plaintiff’s father constructed his homestead therein and as such there accrued a good title in favour of the plaintiffs father after the rentreceiving interest was acquired by Act No. 28 of 1951. He further submitted that the said “Crowns Grants Act” has been adopted by the Government of Bangladesh as Government Grants Act, 1895 (Act No. 15 of 1895). He prayed for maintaining the impugned judgment and decree.

13. I have considered the submissions made by the learned Advocates for the parties as well as by Mr. H. N. Nandy. I have gone through the judgment of both the Courts below and the evidence on record very carefully. In the instant case the plaintiff has sought for declaration of title in the suit land claiming that his father was a servant of the Jamindar of Muktagacha Estate and the Jamindar granted him the property for construction of his homestead and accordingly the plaintiff’s father constructed homestead before the State Acquisition and Tenancy Act came into

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Government of Bangladesh Vs. amal Krishna Datta (Shahidul Islam, J.)

operation. The plaintiff’s homestead is standing upon the suit property and that has been established by oral evidence in as much as the said fact has not been denied by the Government during cross-examining the PW1.

By now, it has been settled that a plaintiff seeking declaration of title in the suit property on the basis of any settlement must prove settlement beyond doubt. If the plaintiffs failed to prove settlement, mere possession would not create any title. In the instant case the plaintiff has made out a case that his father was serving under the landlord Shashikanta Acharaya of Muktagacha Estate who allowed the plaintiff`s father to construct a homestead thereon the suit land without fixing any rent and in lieu of 50% of his salary as was fixed by Jamindar.

14. PW1 in his examination-in-chief added the following evidence:- “Avgvi wcZv gy³MvQv Rwg`v‡ii Znwkj`vi wQ‡jb| Avgvi ¢fa¡l evox, bvw›`bv nB‡Z gy³vMvQvq Avwmqv PvKzix Ki‡Z Amyweav nq weavq PvKzixi 2/3 ermi ci gnviv‡Ri wbKU emev‡mi Rb¨ wKQy f~wg Pv‡nb| ZLb Rwg`vi gnvkq Avgvi wcZvi cÖv_©bv gÄyi Kwiqv eeLl PvKivb wnmv‡e bvwjkx f~wg Avgvi wcZv‡K Ac©b K‡ib Ges wcZvi †eZb A‡a©K KgvBqv †`b| Bnv cÖvq 68/69 ermi c~‡e©| Avgvi wcZv bvwjkx Rwg‡Z `Lj MªnY Kwiqv gvwU ‡dwjqv f~wg DbœwZ mvab Kwiqv Ni `iRv wbg©vYµ‡g Z_vq emevm Ki‡Z _v‡Kb|” Those evidence have not been denied by the Government during cross-examining the plaintiff. The Government did not examine any witness to deny this fact.

15. In view of the above and to meet the ends of justice, I need to frame the following points for determination to decide the matter in controversy as per law:(i) Whether the plaintiff has been able to prove the fact that his father was a servant to the Ex landlord and was granted the suit land for construction of his homestead?

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(ii) Whether the appellate Court was justified in declaring title of the plaintiff in the suit land whenever the plaintiff failed to produce any documentary evidence in support of his title? (iii) Whether the law of equity and other existing laws in Bangladesh provide for any scope for granting any relief in favour of the plaintiff. (iv) Whether Government Grants Act, 1895 (Act XVI of 1895) does come in aid of the plaintiff to get a decree?

16. Let us decide the points for determination No. (i).

The plaintiff was examined on 6.11.1994. He exhibited his passport, where from it appears, his date of birth was 11.7.1956. He added that his father constructed homestead upon the suit land at about 68-69 years ago upon filling up the land and constructing structures thereon.

He further added that as per his father’s prayer the Jamindar allowed him to construct homestead. He further added that after the rent receiving interest was acquired by Government his father acquired title in the suit land but no document was produced showing that the Government ever accepted him as a tenant.

One Sushil Kumar Roy was examined as PW2 who was 76 years old on the date of examining him on 17.4.1994. This PW2 added that the plaintiff’s father got the suit land in lieu of his service. This PW2 claimed him to be an Ex Tahshildar of Muktagache Estate. His evidence was not shaken during cross-examination. PW3 and PW4 were only 39 and 38 years of age while examining them in the Court and as such their evidence is not relevant for the purpose of deciding this issue. The plaintiff’s case is that no rent was fixed by the Jamindar at the time of

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Government of Bangladesh Vs. amal Krishna Datta (Shahidul Islam, J.)

allowing the plaintiff’s father to construct a homestead upon the suit land. The Government although contested the suit but failed to produce any document showing the suit land was every taken over by Government after the State Acquisition and Tenancy Act came into operation or was declared as vested property.

Government also could not produce any document that any rent was fixed for the suit land.

17. In view of the above it has been proved beyond doubt that the plaintiff’s father was in possession in the suit land since for a long time and long before the rent-receiving interest was acquired by the Government and that land was a rent free land. The plaintiff being the son of Abani Kanto has been in possession in the suit land and the suit land is admittedly a homestead. Since the PW2 being aged about 76 years old man has corroborated the evidence of PW1 and since there is no other evidence to discard the evidentiary value of PW1 and PW2, I am of opinion that the plaintiff’s father got the suit land as a rent free land and constructed his homestead. Section 28 of the State Acquisition and Tenancy Act provides the provisions for assessment of rent of service tenancy which runs thus:“28. In preparing or revising a record-of-rights under this Chapter, the Revenue-officer shall fix, in respect of every land held within any area to which such record relates by a person who has been found on evidence produced before him to be entitled to hold such land free of rent in consideration of some service to be rendered, a rent at a rate which the Revenueofficer may deem fair and equitable having regard to the rates of rent generally paid by occupancy raiyats for lands of a similar description and with similar advantages in the same village or in the neighbouring villages

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and shall record such person in the record-ofrights as a raiyat: Provided that nothing in this section shall apply to any land held within the boundaries of a tea estate or any other industrial organization.”

18. In view of the above I find that the Courts below without considering the evidence of PW1 and Pw2 have passed the judgment upon their imaginary views. Accordingly the issue decided affirmatively in favour of the plaintiff opposite parties.

19. Let us take up the point No. 2 for determination.

Declaration of title in the suit land is provided under section 42 of the Specific Relief Act,1877 which runs:“42. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.”

20. In the instant case the plaintiff has not stated in his plaint that his title was ever denied by the defendant. The suit for declaration of title was filed only for the cause of nonrecording the plaintiff`s name in the ROR record. Since there is no specific document of title showing accrual of title of the plaintiff in the suit land, the appellate Court was not justified in declaring title in the suit land. This view finds support from the case of Salma Khatun –v- Zilaparishad Chittagong, reported in 4 MLR (AD) 361.

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Government of Bangladesh Vs. amal Krishna Datta (Shahidul Islam, J.)

21. In view of the above the appellate Court was not justified in declaring title of the plaintiff in the suit land.

22. Let us take up the issue No. iii and iv for decision.

In the plaint, at paragraph 11(ga), the plaintiff has prayed for the following relief:-

“Av`vj‡Zi b¨q wePv‡i ev`x Ab¨vb¨ †h †h cÖwZKvi cvB‡Z cv‡ib ZvnviI wWwµ w`‡Z AvÁ nq|” 23. The learned Assistant Judge has framed the issue No. 4 in the following manner:“What more relief if any the plaintiff is entitled to?”

24. From the judgment it shows that the said issue has not been decided on merit by either of the Courts below.

25. It is the settled law that, from the materials on record, if any party to the litigation is found to be entitled to any remedy as per the law of equity and good conscience, the Court should give that party the said relief, for the ends of justice. “Equity” means right as founded on the laws of nature, moral justify of which laws are the imperfect expression.

Equity implies system of law which is more consonant than the ordinary law with openions current for the time being as to a just regulation of the mutual rights and duties of men living in a civilized society. A court of law should interpret laws rightly. Every court in India or Bangladesh is a court of equity as well as of law. It possesses as inherent in its constitutional all such powers as are necessary to do the right and to undo the wrong. The Court should interpret the laws to decide the matters in controversy as per the law of equity. Equity means “that portion of remedial justice which was formerly exclusively administered by a court

623

of equity as contra-distinguished from that portion which was formerly exclusively administered by a court of common law. In the instant case the father of the plaintiff got permission to construct his homestead in the suit land, from the Ex landlord, and constructed his homestead at about 68/69 years ago. We have seen that no rent was fixed by the Ex landlord as against the suit land. The Government of the province of East Pakistan as well as the Government of Bangladesh did not fix any rent as against the suit land. Upon a careful reading of the plaint, it appears that the Ex landlord allowed the plaintiff’s father either in liue of service or orally granted him permission to construct homestead and accordingly a homestead was constructed. The age of the homestead is more than 60 years and that has been proved by PW1 and PW2. Since there is no document to show that the plaintiff’s father was a servant under the Ex land we have no option but to accept that the said possession of the plaintiff`s farter was a permissive possession, as per the evidence of the PW1 and PW2. The Government has deliberately failed to adduce any evidence. I am inclined to decide this issue upon the evidence of PW1 and PW2. If the plaintiff’s fathers possession is accepted to be a servant under the Ex landlord then section 28 of the State Acquisition and Tenancy Act comes in aid to decide the right of the plaintiff. In that case the Government is bound to fixe a rent as against the suit land and the plaintiff is bound to pay rent to the Government. If the said fact is not believed the case of permissive possession of the plaintiff’s father from the ex landlord stands and thereafter the construction of a homestead upon the suit land stands. Since a case of permissive possession coupled with construction of a homestead has been proved, I do hereby extends my hands to the

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Government of Bangladesh Vs. amal Krishna Datta (Shahidul Islam, J.)

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Easement Act, chapter vi “Licences” for deciding the issue as the said Act has been made applicable in Bangladesh vide Act viii of 1973. The plaintiff father constructed homestead and being in possession therein died. The Jaminder did not revoke licence.

After the liberation of Bangladesh the Government has not taken any step for eviction of the plaintiff. In the meantime more than 60 years have passed. The construction made upon the suit land is permanent in character. A licensee acting upon a license if made any stracture of permanent in nature the fate of that licence comes under section 60 (b) of the Easement Act. Section 60 of the Easement Act provides the following provisions:-

it has been held that a licensee acting on the licence has built works of permanent character, the licensor cannot revoke licence even on payment of compensation. Since the plaint discloses the fact that the Ex landlor allowed the plaintiff’s father to construct his homestead in the suit land, the decisions referred to above are applicable in the instant case and the plaintiff is entitled to retain his possession in the suit land although his title cannot be declared by Court of law. The Government under the provisions of section 28 of the State Acquisition and Tenancy Act can assess the rent for the suit land. The Government Grant Act being No. 15 of 1895 have got no application in the matter.

“60. A license may be revoked by the grantor, unless-

27. In view of the above I am of the view that the plaintiff should apply before the concerned Additional Deputy Commissioner (Revenue) for fixing a rent against the suit land and in that case the Additional Deputy Commissioner (Revenue) is directed to fix a rent and to realize rent from the plaintiff following the provisions of section 28 of the State Acquisition and Tenancy Act.

(a) It is coupled with a transfer of property and such transfer is in force: (b) The licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution.”

26. Since the construction of the plaintiff has been proved and that construction having made prior to the State Acquisition and Tenancy Act came into operation and the homestead being permanent in nature, the plaintiff is entitled to retain his possession in the said homestead as per section 60(b) of the Easement Act. The defendant has stepped into the shoes of Ex landlord. The Ex landlord being the owner of the suit property did not take any step for eviction of the plaintiff from the suit land rather allowed him to reside in the said homestead. In the case of Guman Singh –vPyarellal and others, reported in 117 IC 224 it has been held execution of permanent work by licensee is not revocable. In the case of Jagat Singh and others –v- District Board, Amiritasan, reported in AIR 1940 Lahore 509

28. From the facts and circumstances and discussions made above, the impugned judgment and decree are not sustainable in law and is liable to be set aside and the Rule is liable to be made absolute with the finding that the declaration of title as made by the appellate Court is set aside and the possession of the plaintiff in the suit land is declared as protectable under section 60(b) of the Easement Act. Government is bound to fix a rent against the suit land.

29. In the result, the Rule is made absolute with the above observation, however, without any order as to costs.

The office is directed to send down the lower Court’s record.

Ed.

614

Md. Ojiullah. Vs.Md. Rafiqul Alam and others (Sheikh Abdul Awal, J.)

HIGH COURT DIVISION (Civil Appellate Jurisdiction)

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hearing of an appeal decided ex-parte from an order. …(10)

In the case of Noor Muhammad Vs RC Karachi Mr. Sheikh Abdul } Md. Ojiullah Awal, J. ...Petitioner- reported in PLD 1959 (Karachi) 19, it has } appellant been held that as the wording of Article 169 Judgment } shows that it can apply only where one has a 26.7.2012 Vs. } Md. Rafiqul Alam decree, the proper Article to apply, in the case and others. of an application for re-hearing of an appeal } ... Opposite party- decided ex parte from an order refusing an respondents. interim injunction is the residuary Article 181

Code of Civil Procedure (V of 1908) Order XLI, rule 21 Limitation Act (IX of 1908) Articles 169 and 181 An application for re-hearing of an appeal decided ex-parte from an order, Article 181 of the Limitation Act is applied and not the Article 169. The Miscellaneous case is not barred by Limitation as it was filed well within a period of 3(three) years.

To meet the main submission of Mr. Khair Ezaz Maswood, the learned Advocate for the petitioner that in view of provision of Article 181 of the Limitation Act the present Misc.

Case was not barred by limitation, I have carefully examined the provisions of Articles 169 and 181 of the Limitation Act and find Article 169 applies only when there is a decree and not an ex-parte order and Article 181 applies in the case of an application for re-

and not Article 169, and an application for rehearing presented within 3 years of the ex parte order is in time. …(11) In this case, I have already noticed that the appellant filed Misc. Case under Order XLI, rule 21 of the Code of Civil Procedure for rehearing of an appeal decided ex-parte from an order. So, in the given facts and circumstances of the case and the decision of the highest Court as cited above, I have no hesitation to hold that the instant Misc. case is not barred by limitation inasmuch as the same was filed well with in a period of 3 years. …(12)

Noor Muhammad Vs. RC Karachi, PLD 1959 (Karachi) 19 ref.

Mr. Khair Ezaz Maswood, Advocate ....For the appellant.

Mr. Md. Aktaruzzamn with Mr. Md. Yousuf Ali, Advocates ...For the respondents.

First Miscellaneous Appeal No. 107 of 2009.

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Md. Ojiullah. Vs.Md. Rafiqul Alam and others (Sheikh Abdul Awal, J.)

Judgment This appeal at the instance of petitionerappellant is directed against the judgment and order dated 23.02.2009 passed by the learned Joint District Judge, 2nd Court (incharge), Lakshmipur in Miscellaneous Case No.13 of 2006 under Order XLI, Rule 21 of the Code of Civil Procedure rejecting the application for re-hearing of the Miscellaneous Appeal No.14 of 1999.

2. The brief fact relevant for disposal of this appeal is that the present respondents as pre-emptor filed Miscellaneous Case No.28 of 1997 in the Court of Assistant Judge, Raipur, Lakshmipur under section 96 of the State Acquisition and Tenancy Act for pre-empting 1½ decimals of land.

Ultimately, the said pre-emption case was disallowed on contest by judgment and order dated 21.6.1999. The pre-emptor, thereafter, preferred Miscellaneous Appeal No.14 of 1999 in the Court of District Judge, Lakshmipur. Subsequently, the said appeal was transmitted to the Court of Joint District Judge, 2nd Court, Lakshmipur for disposal. The learned Joint District Judge, Lakshmipur however allowed the said appeal by ex-parte judgment and order dated 23.3.2002. Thereafter, the present appellant as petitioner filed an application under Order XLI, Rule 21 of the Code for re-hearing of the said appeal, which was

615

registered as Miscellaneous Case No.13 of 2006. The learned Joint District Judge upon hearing the parties by the impugned judgment and order dated 23.02.2009 rejected the miscellaneous case holding that the petitioner could not satisfactorily explain the delay of 5(five) months.

3. Being aggrieved by the aforesaid judgment and order dated 23.02.2009 passed by the learned Joint District Judge, 2nd Court (in-charge), Lakshmipur in Miscellaneous Case 13 of 2006 the present appellant preferred this appeal.

4. Mr. Khair Ezaz Maswood, the learned Advocate appearing for the petitionerappellant submits that the learned Joint District Judge had a misconception of law as to the provisions of Article 189 and 181 of the Limitation Act committed an error of law in coming to a finding that the Miscellaneous Case No.13 of 2006 under Order XLI, Rule 21 for re-hearing of the appeal is barred by law of limitation. He further submits that the Joint District Judge having failed to consider that the appellantpetitioner was admitted in C.M.H. Commilla on 16.3.2006 and he was released from the Hospital on 8.4.2006 and thus the appellant was prevented by sufficient cause from appearing when the appeal was called on for hearing on

616

Md. Ojiullah. Vs.Md. Rafiqul Alam and others (Sheikh Abdul Awal, J.)

16.03.2006 and as such, the impugned judgment and order is liable to be set-aside.

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application for re-hearing which reads as follows:

"................ Aœ Bf£m ®j¡LŸj¡u J l£¢aja ach£l L¢lu¡−Rez ®L¡e pju ach£−ll H²¢V L−le e¡Cz Bf£mÉ¡¾Vfr ¢hNa 13/09/05 Cw a¡¢l−M h¤−Ll hÉ¡b¡u BH²¡¿¹ qCu¡ X¡x g−uS i¥U¡l ¢Q¢Lvp¡d£e ¢R−mez f−l p¢Çj¢ma p¡j¢lL q¡pf¡a¡m L¥¢jõ¡, i¢aÑ qez ®pC qC−a ¢a¢e I q¡pf¡a¡−m ¢Q¢Lvp¡d£e ¢R−mez 29/8/06 Cw a¡¢l−M ¢LR¤V¡ p¤ØqÉ qCu¡ q¡pf¡a¡m qC−a ¢l¢mS qCu¡ 30/08/06 Cw a¡w mrÈ£f¤l a¡q¡l ¢ek¤š²£u 6. I have heard the learned Advocates for BqeS£¢h pqL¡l£ B−e¡u¡l ®q¡−p−el ¢eLV both the sides, perused the Memorandum B¢pu¡ S¡e−a f¡−l ®k, a¡q¡l ®j¡LŸÑj¡ h¡−S Bf£m 14/1999Cw ¢hNa 16/3/06Cw a¡¢l−M of appeal and other materials on record.

HL alg¡ öe¡e£ qCu¡ 23/3/06Cw a¡¢l−M l¡u 7. On perusal of the record, it is found fËQ¡l Ll¡ qCu¡−Rz 5. Mr. Md. Aktaruzzaman, the learned Advocate appearing for the respondent Nos.1-2 and 7, on the other hand, upon referring to the provisions of Order XLI, Rule 21A of the Code of Civil Procedure submits that after the provisions of amended Rule 21A came into force the appellant is not entitled to get benefit of Limitation Act.

that the appellant was admitted in C.M.H. Commilla on 16.3.2006 for treatment and he was released from the Hospital on 8.4.2006 and the appeal was called on for hearing on 16.03.2006. The learned Joint District Judge, 2nd court, Lakshmipur rejected the Misc. Case on the findings that after discharging from hospital the appellant filed miscellaneous case long lapse of 5(five) months and he could not explain the delay of 5(five) months satisfactorily.

8. To justify the impugned judgment of the learned Joint District Judge, I like to quote hereunder the material portion of the

fË¡b£Ñ 28/9/05Cw a¡¢l−M mrÈ£f¤l B¢pu¡ a¡q¡l ¢ek¤š²£u BqeS£¢h pqL¡l£ J pqL¡l£ BqeS£¢h−L MlQ e¡ ®cJu¡u a¡q¡l¡ ®j¡ŸÑj¡l ®L¡e ach£l L−le e¡Cz ................"

9. From the above, it appears that the appellant was not aware about the exparte judgment and order as he was under treatment in C.M.H., Comilla and he was not informed about the exparte judgment dated 23.03.2006 by his lawyer or lawyer’s clerk and as such, the delay of 136 days has been caused in filing the miscellaneous case. I, therefore, find there is a good deal of substance in the contentions raised by

I LNJ (2012)

Md. Ojiullah. Vs.Md. Rafiqul Alam and others (Sheikh Abdul Awal, J.)

Mr. Khair Ezaz Maswood that the appellant was prevented by sufficient cause from appearing before the Court when the appeal was called on for hearing on 16.03.2006.

10. To meet the main submission of Mr. Khair Ezaz Maswood, the learned Advocate for the petitioner that in view of provision of Article 181 of the Limitation Act the present Misc. Case was not barred by limitation, I have carefully examined the provisions of Article 169 and 181 of the Limitation Act and find Article 169 applies only when there is a decree and not an ex-parte order and Article 181 applies in the case of an application for rehearing of an appeal decided ex-parte from an order.

11. In the case of Noor Muhammad Vs RC Karachi reported in PLD 1959 (Karachi) 19, it has been held that as the wording of Article 169 shows that it can apply only where one has a decree, the proper Article to apply, in the case of an application for re-hearing of an appeal decided ex-parte from an order refusing an interim injunction is the residuary Article 181 and not Article 169, and an application for re-hearing presented within 3 years of the ex parte order is in time.

12. In this case, I have already noticed that the appellant filed Misc. Case under Order XLI, rule 21 of the Code of Civil

617

Procedure for re-hearing of an appeal decided ex-parte from an order. So, in the given facts and circumstances of the case and the decision of the highest Court as cited above, I have no hesitation to hold that the instant Misc. case is not barred by limitation inasmuch as the same was filed well with in a period of 3 years.

13. The plea as canvassed by the learned Advocate for the respondents that after the amended Rule 21A came into force the appellant is not entitled to get benefit of the Limitation Act is plainly misconceived in the facts and circumstances of the case.

14. In the facts of the case and for the reasons stated above, I am clearly of the opinion that the learned Joint District Judge acted illegally in disallowing the Misc.

Case.

15. In the result, the appeal is allowed.

The impugned judgment and order dated 23.02.2009 passed by the learned Joint District Judge, 2nd Court (in-charge), Lakshmipur is set-aside and Miscellaneous Case No.13 of 2006 under Order XLI, Rule 21 of the Code of Civil Procedure is allowed. The learned Joint District Judge is directed to re-hear and dispose of the Miscellaneous Appeal No.14 of 1999 in accordance with law.

Communicate the order at once.

Ed.

I LNJ (2012) Dr. Md. Shahjahan Advocate Vs. Election Commission and others (Md. Ashfaqul Islam, J.)

Bangladesh Nationalist Party (BNP) sought Nomination from his party to contest the 9th Parliamentary Election but his political party did not nominate him as a candidate and nominated the added respondent No.8, Mr. Md. Hannan for the purpose.

4. Since 30.11.2008 was the last date for filing Nomination paper for the election and as the petitioner did not get Nomination from his party, he failed to file the same on that date with the Returning Officer and subsequently on 02.12.2008 he got party nomination to file the same with the returning officer Comilla. Under the situation, he filed writ petition No.9708 of 2008 and obtained a direction upon the Returning Officer to allow him to submit Nomination paper before expiry of last date i.e.

4.12.2008. On that date the petitioner failed to submit the Nomination paper as per the adinterim order passed in Writ petition No.9708 of 2008 and then he filed the present writ petition No.9875 of 2008 praying for an interim direction upon the Returning Officer to allow him to submit Nomination paper and the High Court Division on 11.12.2008 without issuing any Rule passed an ad-interim order directing the Returning Officer to accept the Nomination paper of the petitioner after scrutiny (Annexure - D to the supplementary affidavit filed dated 4.12.2008 by the petitioner). The Returning Officer rejected the Nomination paper of the petitioner on 12.12.2008 and also rejected the nomination paper of the respondent No.7, Md. Harunur Rashid and allowed the same of the added respondent No.8 by a single order dated 04.12.2008 as evidenced respectively by Annexure ‘F’ and Annexure ‘C’ of the supplementary affidavit dated 14.12.2008 filed by the petitioner. On 18.12.2008 Rule was issued in the present writ petition No- 9875 of 2008 with a direction upon the respondent No-

569

1 and 6 to treat the Nomination paper of the petitioner as valid.

5. Meanwhile the respondent No.7 Harunur Rashid being aggrieved by the order of the Returning Officer filed appeal before the Election Commission being Appeal No.75 of 2008 challenging the order of the Returning Officer rejecting his Nomination paper. He also filed another appeal before the Election Commission being Appeal No.56 of 2008 challenging the order of acceptance of the Nomination paper of the added respondent No.8 Mr. Hannan by the Returning Officer.

The Election Commission by order dated 10.12.2008 allowed both the appeals preferred by the respondent No.7 declaring his Nomination paper to be valid and rejecting the Nomination paper of the added respondent No.8 as invalid (Annexure -H) of the supplementary affidavit dated 27.9.2009 filed by the petitioner.

6. The petitioner instead of challenging before the Election Commission, the order of cancellation of his Nomination paper by the returning officer dated 12.12.2008 as it was done by the respondent No.7, moved the instant writ petition questioning the acceptance of the Nomination paper of the respondent No.7 by the Election Commission and also obtained ad-interim order that directed the Election Commission to treat his Nomination paper as valid.

7. Be it mentioned that the added respondent No.8 at the relevant time by filing writ petition No.9904 of 2008 challenged the order of the Election Commission dated 10.12.2008 rejecting his Nomination paper in Appeal No.56 of 2008 but the High Court Division summarily rejected the said writ petition by order dated 15.12.2008. He then filed another writ petition being Writ Petition No.9905 of

570

Dr. Md. Shahjahan Advocate Vs. Election Commission and others (Md. Ashfaqul Islam, J.)

2008 challenging the order of the Election Commission allowing the Nomination paper of the respondent No.7 in Appeal No.75 of 2008, which was also summarily rejected by the High Court Division on 15.12.2008. Thereafter he filed Election Petition No.07 of 2009 before the High Court Division challenging the National Parliamentary election held on 29.12.2008 and the High Court Division by the judgment and order dated 17.05.2009 dismissed the said Election Petition.

8. The petitioner Dr. Md. Shahjahan did not move any application before the Election Commission against the order of the Returning Officer canceling his Nomination paper in the manner as it has been done by the respondent No.7 and the added respondent No.8. He has directly come before us under Article 102 of the Constitution.

9. That being the background, we are to settle the issue whether the petitioner has any locus standi to file the instant writ petition directly under Aticle 102 of the constitution in the facts and circumstances of the case.

10. This writ petition has been appearing in the daily cause list for quite a long time but no one appeared for the petitioner though the matter came up for hearing in the list with the name of the learned Advocate appearing for the petitioner. However, Mr. Ahsanul Karim the learned counsel for the respondent No.7 submits that the instant case is covered by the decision of the Appellate Division and for that reason this writ petition can be decided by us even without hearing the petitioner.

11. Mr. Karim mainly argued that the writ petition itself is not maintainable. In elaborating his contention he submits that the petitioner before issuance of the Rule on 18.12.2008 has moved before the Single Vacation Bench on 11.12.2008 and got the ad-

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interim order and almost at the same point of time the respondent No.7 filed two appeals before the Election Commission against the order of rejection of his Nomination paper and acceptance of the Nomination paper of the added respondent No.8 Mr. Hannan by the returning officer and those appeals were allowed by the Election Commission on 10.12.2008. The added respondent No.8 challenged the decision of the Election Commission dated 10.12.2008 in two writ petitions viz writ petition No. 9904 of 2008 and writ petition No. 9905 of 2008 and both the petitions were summarily rejected by this Division against which he moved Civil Petition For Leave To Appeal No. 1009 of 2008 before the Appellate Division which was eventually not pressed by him.

12. But the petitioner did not disclose that his Nomination paper was rejected by the Returning Officer on 12.12.2008. Therefore, Mr. Karim submits that the petitioner could have proceeded before the Election Commission against the decision of the Returning Officer rejecting his Nomination paper in the manner as it was done by the respondent No.7 and without doing so he has directly come under Article 102 of the Constitution which is admittedly against the decision of the Appellate Division on the point.

He placed reliance on the decisions reported in A.F.M. Shah Alam -V- Mujibul Hoque & others 41 DLR (AD) P-68, 48 DLR (AD) P208 in support of his contention as a whole.

13. Besides, placing reliance on the decision of Government of Bangladesh vs. Sheikh Hasina, 60 DLR (AD) 90 he further submits when a writ petition can be decided on a sole ground, this Division is not required to address any additional ground other than the said sole ground.

I LNJ (2012) Dr. Md. Shahjahan Advocate Vs. Election Commission and others (Md. Ashfaqul Islam, J.)

14. He further submits that the election was held on 29.12.2008 in which the respondent No.7 came out successful securing 88 lacs votes by defeating his nearest rival who secured 81 lacs votes. But the candidate who lost in the election against the respondent No.7 did not challenge the said election thereby meaning that the election was fair. Therefore, under no circumstances the instant petition filed by the petitioner can be considered to be maintainable.

15. Upon over all condition of the case, he concludes that with the lapse of time this writ petition has also become infractuous.

16. Be that as it may we have heard the Learned counsel for the respondent at length and considered his submissions. Let us be very specific that this matter came up for hearing on several days but no one appeared for the petitioner even the matter appeared in the list with name of the advocate for the petitioner.

Since the matter is covered by the decision of the Appellate Division in Shah Alam’s case we hold that we can dispose of the writ petition without the presence of the petitioner. (Underlinings are mine) 17. In the landmark decision of A. F. M. Shah Alam Vs. Mujibul Haq and others 41 DLR(AD) 68 our Appellate Division with clarity categorized the issues to be followed in the election process (in case of local government election). His Lordship Justice Badrul Haider Chowdhury observed as under: “(1) Under rule 70 read with Section 24 of the Ordinance the Election Commission has been vested with plenary, supervisory and discretionary jurisdiction to oversee that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the Rules.

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(2) In so doing it may pass any order, unless specifically barred, including an order for repoll, acceptance/consolidation of result, review etc. on the basis of materials before it. The observance of the rule of audi alteram partem though desirable in some circumstances is not an invariable pre-condition for the validity of such order.

(3) The jurisdiction of the High Court Division under Article 102 of the Constitution can not be invoked except on the very limited ground of total absence of jurisdiction (coram nonjudice) or malice in law to challenge any step in the process of election including an order passed by the Election Commission under Rule 70 because (Underlinings are mine) : (a) the real and larger issue of completion of free and fair election with rigorous promptitude for timely emergence and functioning of elective bodies must take precedence over settlement of private disputes. (b) all election disputes must wait pending completion of the election and be taken to the special forum created under the Election Law itself for their resolution. (c) almost invariably there will arise dispute over facts which cannot and should not be decided in an extraordinary and summary jurisdiction of writ.”

18. The ratio decidendi of the decision of Shah Alam’s case that no step in the election process can be challenged under Article 102 of the Constitution in the High Court

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Dr. Md. Shahjahan Advocate Vs. Election Commission and others (Md. Ashfaqul Islam, J.)

Division unless the impugned order passed by the authority concern is corum nonjudice or order is afflicted with malice in law (in case of local government election) has been also made applicable in case of parliament and presidential election held under the Constitution. In the case of A.K.M. Maidul Islam vs. Bangladesh Election Commission and others 48 DLR (AD) 208 Justice Mustafa Kamal observed on the point: “In the case of AFM Shah Alam vs.

Majibul Huq and others, 41 DLR (AD) 68, this Court has in very clear terms laid down that in local government elections no step in the election process can be challenged under Article 102 of the Constitution in the High Court Division unless the impugned order passed by the authority concerned is coram non judice or is afflicted with malice in law. This decision of ours is equally if not more forcefully applicable to parliamentary and Presidential elections held under the Constitution.

The petitioner has neither alleged coram non judice nor malice in law in the writ petition.”

19. The Constitution vests the superintenddence, direction and control of the preparation of the electoral rolls for the presidential and parliamentary elections and conduct of such elections in the Election Commission. Election is a long, elaborate and complicated process which starts with the notification for holding the elections and ends with the declaration of the result of polling in the manner prescribed by law. The Commission has to supervise, control, and direct each and every step of the process to ensure free and fair election and the

I LNJ (2012)

Commission must be deemed to have all the power and discretion to ensure free and fair election as that is the manifest intendment of the Constitution in providing for the Commission. According to the decision in Shah Alam the High Court Division can interfere with the decision of the Commission when it is coram non judice or vitiated by malice in law. In judging whether a decision is vitiated by malice in law, the court does not consider the adequacy of the materials but examines whether it is arbitrary.

20. In the case in hand we have found that the petitioner did not even disclose that his Nomination paper was rejected by the Returning Officer on 12.12.2008. The petitioner could have proceeded before the Election Commission against the decision of the Returning Officer rejecting his Nomination paper as it was done by the respondent No.7 and for that reason, the petitioner had certainly misdirected himself in bringing the instant writ petition admittedly against the decision of the Appellate Division in Shah Alam’s case as referred to above and on that score this petition itself is not maintainable.

(Underlinings are mine) 21. Let us now digress to another aspect of the case. When a writ petition can be decided by deciding one issue only no other point need be decided. In the decision of Kudrat-e-Elahi Panir vs. Bangladesh reported in 44 DLR (AD) 319 it was held: “Therefore the broad decision that a law can be declared void in case of a conflict with any provision of Part II of the constitution was uncalled for and made on hypothetical facts. This, as a rule, the Courts always abhor. The Court does not answer merely

Prof.

Mahbub AhmedAdvocate and othersVs. Vs.Election SecuritiesCommission and Exchangeand Commission (M. Enayetur I LNJ (2012) Dr. Md. Shahjahan others (Md. AshfaqulRahim, Islam,J).J.)

academic question but confines itself only to the point/points which are strictly necessary to be decided for the disposal of the matter before it. This should be more so when Constitutional questions are involved and the Court should be ever discreet in such matters. Unlike a civil suit, the practice in Constitutional cases has always been that if the matter can be decided by deciding one issue only no other point need be decided.�

(Underlinings are mine) 22. Reflection of this decision could also be found in the case of Bangladesh vs. Sheikh Hasina 60 DLR (AD) 90 as referred to above.

23. Lastly, we also found substance in the submissions of the learned counsel for the respondent No.7 that the election of 9th parliamentary was held on 29.12.2008 in which the respondent No.7 came out successful from a particular constituency. His nearest candidate who was defeated in the election did not challenge the election. Therefore, with the lapse of time this writ petition filed by the petitioner has also become infructuous.

24. In the light of the decisions of our apex court and on a critical appraisal of the entire case from the very beginning till the decision of the election held on 29.12.2008 we have viewed the respective cases of the petitioner, the respondent No.7 and the added respondent No.8 from a different perspective and with objectivity. On the premises, we hold that this rule should be discharged on the ground of maintainability as well as being infructuous.

In the result, this Rule on the two counts as mentioned above is discharged however, without any order as to cost.

Ed.

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HIGH COURT DIVISION (Criminal Revisional Jurisdiction) Mr. M. Enayetur Rahim, J. And Mr. Sheikh Md. Zakir Hossain, J. Judgment 23.11.2011

} Criminal Revision } }

} } } } }

No. 221 of 1999 Professor Mahbub Ahmed ...Petitioner.

Vs. Securities and Exchange Commission ...Opposite Party Criminal Revision

} No. 222 of 1999 } Mr. Shahidullah ...Petitioner.

Vs. } Securities and Exchange } Commission } ...Opposite Party

}

} Criminal Revision } } } } } }

No. 223 of 1999 M.G. Azam Chowdhury ...Petitioner.

Vs. Securities and Exchange Commission ...Opposite Party

Code of Criminal Procedure (V of 1898) Section 561 A Securities Exchange Ordinance (XVII of 1964) Taking into consideration the allegation made in the petition of complaint and Section 17 of the Securities Exchange Ordinance, 1969 it appears that those allegation Criminal Revision Nos. 221 to 223 of 1999.

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A Wahhab Miha,C.J.) J.) Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and ors. (Md. (M Muzammel Hossain,

arriving at the finding of knowledge of the pre-emptor as to the transfer in question. It further appears that the appellate Court disbelieved the evidence of PW's 1,2 and 4 on the ground that they were the own men of the pre-emptor. Such reason given by the appellate Court in disbelieving PW s 1, 2 and 3 is absolutely fallacious and contrary to the settled principle of law that the testimony of a witness cannot be disbelieved only on the ground of relationship or closeness if his evidence is otherwise found to be true and withstand the test of cross-examination. In this regard, reference may be made to the cases of Samad Sikder @ Somed Sikder-vs- State reported in 50 DLR(AD)24, Nowbul Alam and others-Vs- State reported in 45DLR(AD) 140, and Anwara Khatun-Vs-Md. Abdul Hye and others reported in 4BLC(AD) 14.

59. In support of the case of knowledge about the transfer in question for the first time in the salish baithak held on 20th of March, 1998 the pre-emptor examined 3(three) witnesses in addition to her husband as PWl. The evidence of the witnesses to the above effect could not be shaken in crossexamination then what more the pre-emptor could do to prove the knowledge within the meaning of subsection (1) of section 96 of the Act. So, the appellate Court was absolutely in error when it observed that the pre-emptor could not prove that she did not know about the transfer in question before 20th of March, 1988. it further appears that the appellate court in a circuitus and negative way disbelieved the pre emptors case of knowledge about the transfer in question on 20th of march, 1988 and the development made in the case land including erection of the shops therein after the said date by posing a question why she did not pray for any injunction after filing of the pre-emption application on 27.05.1998

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if the pre-emptees undertook development work in the case land after 20th of March, 1998 in complete disregard to the factual position that the gap between 20th of March, 1998 upto 27 May, 1998 was quite enough to undertake the nature of the development works and erection of the structures on the case land as claimed by the pre-emptees. The appellate Court also failed to consider in its proper perspective that even if it is conceded that the pre-emptees undertook development work after the filing of the pre-emption case and the pre-emptor failed to take any step by way of filing an application to injunct them from undertaking such development work that does not debar the pre-emptor to pray for pre-emption and for such failure no adverse presumpti can be drawn against her. In this regard, law is very much clear which is that the pre-emptees shall be entitled to get development cost till getting notice of the pre-emption application 60. it is very much striking to state that the appellate Court itself disbelieved the preemptee’s case of spending TK. 5,00,000.00 for the development of the case land including erection of the structures thereon on the ground that he failed to file any documentary evidence in that respect and found that the pre-emptee spent TK. 1,50,000.00 only. From the appellate Court judgment, it further appears that it proceeded with a prior view that since the pre-emption application was filed after 8 (eight) years, the same was barred by limitation ignoring the positive evidence on record adduced by the pre-emptor that she had no knowledge about the transfer in question prior to 20th of March, 1998 and whatever development was done in the case land was done after the said date. The appellate Court also failed to consider the fact that the pre-emptee took specific plea in the

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(M A Wahhab Miha, J.) Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and ors. (Md. Muzammel Hossain, C.J.)

written objection as well as in Court while he deposed as OPW-1 that notice under section 89 of the Act was served upon the pre-emptor but failed to prove the said fact which shows that the pre-emptee took false plea in his pleading to defeat the case of the pre-emptor and for this reason the appellate Court ought to have drawn an adverse presumption against him. It is true that the pre-emptee developed the case land and erected some shop rooms therein but the pre-emptor specifically stated that those were done after the disclosure of the fact of transfer on 20tn of March, 1998.

61. In sifting the evidence of the PW’s in arriving at the finding of knowledge of the pre-emptor about the transfer in question, the appellate Court totally failed to consider the pertinent fact that the seller-opposite party No.4 is none else, but his full brother and the father of the pre-emptees Sultanuddin Bhuiyan used to cultivate the case land as bargadar during the life time of her father and then under them and the seller used to give her the share of the crops, so even if the preemptee was in possession of the case land till 20th of March, 1998 the pre-emptor had no scope to know about the transfer in question.

62. In the face of positive evidence adduced by the pre-emptor as to knowledge about the transfer in question as discussed above the pre-emptee was obliged to examine witnesses who as per his own case participated in filling up the case land and erecting shop rooms therein after 1994 and before 20th March, 1998. But the pre-emptee failed to examine any such witness in the case. To specify, the pre-emptee did not examine the truck owner or the truck driver in support of his case that he filled, up the case land by bringing earth in truck from Gazipur and Monoharer chak. The pre-emptee examined

I LNJ AD (2012)

one Tota Mia as OPW-5 to prove that earth was brought from Gazipur and Monoharer chak by truck at the cost of taka 3/4 lakh, but in cross-examination he stated that his house was two kilometers away from the case land and that he had no truck and did not submit any receipt of truck fare. The pre-emptee did not examine any one who erected the shop rooms in the case land. The pre-emptee examined Haridas as OPW-6 who is his alleged tenant in the case land since 1995.

This OPW stated in his deposition that he had a furniture shop in the case land since 1995 but in support of his tenancy no agreement was produced. Although OPW-6 stated that he has been doing the business in the case land since 1995 by paying rent of TK.6,000.00 per year, no rent receipt was produced. All these categorically disproved the case of the contesting pre-emptee that he undertook development work in the case land in 1994/1995 rather supported the case of the pre-emptor that the development in the case land was done and shop rooms were erected after 20th of March, 1998.

63. I am of the view that by examining 4 (four) witnesses in support of the case of knowledge of the transfer in question on 20th of March, 1998 the pre-emptor discharged her onus and then the onus shifted upon the contesting pre-emptee that he developed the case land in 1994/1995 and then erected the shop rooms therein, but he failed to discharge the said onus. The appellate Court did not at all consider this legal aspect of the case.

64. From the impugned judgment of the High Court Division, it appears that the High Court Division, in fact, did not discuss and consider the evidence on record on the question of limitation on the view that the question of limitation "hinges on the credibility of the witnesses and the trial Court

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A Wahhab Miha,C.J.) J.) Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and ors. (Md. (M Muzammel Hossain,

had the advantage to see the demeanor of the witnesses and as such, its decision in respect of such finding should prevail and accordingly, endorsed the finding of the trial Court on the question of limitation. In this regard, the High Court Division further observed that "The Court of appeal below, on the other hand, did not have the advantage to see the demeanor of the witnesses and as such the finding arrived at by the Court of appeal below as to limitation cannot get preference.

65. In view of the discussions made hereinabove, I do not find anything wrong with the view taken by the High Court Division. Since the trial Court did not consider the question of improvement of the preemptees and the appellate Court found the same at TK.1,50,000.00, the High Court Division considering the admission of the preemptor that the pre-emptees made improvement in the case land at the cost of taka 40,000.00/50,000.00 fixed the development cost at TK.75,000.00. I find the assessment of cost reasonable and based on evidence on record particularly in view of the admitted fact that no documentary evidence was produced in support of the development cost 66. It is true that the judgment of High Court Division is not that happy as it should have been, but I do not find any error in the ultimate decision arrived at by the High Court Division in making the Rule absolute restoring those of the trial Court considering the judgments of the two Courts below.

67. In conclusion, I am of the view that the appellate Court rejected the pre-emption application on total misreading, nonconsideration of the material evidence of the PW s and the OPW's, with reference to the pleading of the parties as well as the settled principle of law in sifting and weighing the evidence of a witness. I would dismiss the appeal without any order as to cost.

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Sd/- M.A. Wahhab Miah, J. 68. Nazmun Ara Sultana, J: I have gone through the separate judgments prepared by my learned brother, Surendra Kumar Sinha, J. and my learned brother Md. Abdul Wahhab Miah, J. I agree with the judgment of brother Surendra Kumar Sinha, J. Sd/- N. A. Sultana, J. 69. Muhammad Imman Ali, J: I have gone through the judgments delivered by my learned brothers Surendra Kumar Sinha, J. and Md. Abdul Wahhab Miah, J. I agree with reasons given and the decision arrived at by my learned brother Mr. Md. Abdul Wahhab Miah, J. I would, therefore, dismiss the appeal without any order as to costs.

Sd/- M. Imman Ali, J. 70. Muhammad Mamtaz Uddin Ahmed, J: I have gone through the separate judgments prepared by my learned brother, Surendra Kumar Sinha,J. and my learned brother, Md. Abdul Wahhab Miah, J. I agree with the judgment of brother Surendra Kumar Sinha, J. Sd/- Md. Mamtaz Uddin Ahmed.

71. Md. Shamsul Huda, J: I have gone through the separate judgments prepared by my learned brother, Surendra Kumar Sinha, J. and my learned brother, Md. Abdul Wahhab Miah, J. I agree with the judgment passed by my learned brother, Surendra Kumar Sinha, J. Sd/- Md. Shamsul Huda COURTS ORDER The appeal is allowed by majority decision without any order as to costs.

Ed.

574

Professor Mahbub Ahmed and others Vs. securities and Exchange Commission (M. Enayetur Rahim, J.)

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are very much attracted the provisions of section 17 of the said Ordinance. As the accused by their act had affected a series of transactions in various securities creating the appearance of the active trading and as the buyer/ seller influenced the market price when they choose to do so for their free value and entirety do not constitute any offence. ...(28)

securities and Exchange Commission–VsRuna N Alam,57DLR (AD) 161, ref.

Code of Criminal Procedure (V of 1898) Sections 439 and 561A The petitioners having not challenged the order of framing charges against them by filing revisional application under section 439 of the Code but filed applications under section 561A of the Code to quash the entire proceeding for which the power under section 561A of the Code cannot be invoked to interrupt or divert the ordinary course of Criminal Procedure. ....(35)

Judgment

Securities Exchange Ordinance (XVII of 1969) Section 24(2) In view of provision of section 24(2) of Securities Exchange Ordinance, 1969 onus lies on the accused to prove that he is not guilty of the alleged offence which is different from ordinary criminal jurisprudence, that the prosecution has to prove its case. ...(37) Abdul Quader Chowdhury and others –Vs- The State,28 DLR(AD), Page-38; Shinepukur Holding Ltd and Others–Vs- Securities and Exchange Commission and another,50 DLR(AD)189; Bangladesh –Vs- Tan Kheng Hock 31 DLR(AD),69, Farruk Ahmed –VsAbdul Kader Chowdhury 38 DLR(AD)18, Syed Mohammad Hashem alias Hashim –Vs- The State,48 DLR(AD)87; Ali Akkas –Vs- Enayet Hossain and others 17 BLD(AD)44 and

Ms. Safayat Sultana Rume, Advocate on behalf of Mr. Rokonuddin Mahmud, Advocate -For the Petitioners Mr. A.K.M Ali, Advocate with Ms. Ayesha Akhter, Advocates, ---For the Opposite Party

M. Enayetur Rahim, J: By filing 3(three) separate applications under Section 561A of the Code of Criminal Procedure, three accused persons of Sessions Case No.607 of 1997, subsequently renumbered as sessions Case No. 558 of 1999, arising out of complaint petition Case No.1081 of 1997 obtained the present Rules calling upon the opposite party to show cause as to why the proceeding of the said sessions case should not be quashed.

2. Since the facts and questions of law are same in all the Rules, those are being disposed of by this common judgment.

3. The opposite party Securities and Exchange Commission filed petition of complaint in the Court of Chief Metropolitan Magistrate, Dhaka which was registered as complaint petition case No.1081 of 1997 against the present petitioners and another namely Securities Consultants Ltd. stating, inter alia, that the accused firm and other accused persons act as dealers/brokers in Dhaka Stock-Exchange and in such capacity of the dealer/broker were involved in fraudulent activities in the year 1996 during the month of July to December within the mischief of Section 17 of the Securities and Exchange

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Professor Mahbub Ahmed and others Vs. securities and Exchange Commission (M. Enayetur Rahim, J.)

Ordinance,1969. This offence was detected by an Enquiry Committee formed by the Securities and Exchange Commission to enquire into the matter under Section 21 of the Securities and Exchange Ordinance, 1969.

4. According to the enquiry report dated 27.03.1997 the accused persons being dealer/broker committed offence described in section 17 of the Securities and Exchange Ordinance, 1969 and as such is liable to be punished under Section 24 of the Securities and Exchange Ordinance, 1969.

5. The finding of the Enquiry Committee regarding the accused persons runs as follows: “Securities Consultants Ltd. In foreign DVP bank statement there has been huge sales in this A/C. Total transactions in volume and value are 7,09,530 nos. and Tk.27.14 cores respectively. Unsettled amount is Tk.2.50 cores. There is no such name in SEC & DSE list. No trading has also taken place in DSE in this name. Major trading are in the shares of Beximco Pharma (1,71,450) Shine Pukur (1,00,000) Dynamic Textile (1,20,000), Mita Textile (89,900), Orion In fusion (73,680), Beximco Fisheries (50,000), Apex Footwear (37,500), Padma Textile (25,000).

6. The Committee fond no trading of these transactions in DSE. However, the Committee could gather that it is a syndicate comprising three members. Two are brokers of DSE namely Mr. M.G. Azam Chowdhury and Mr. Shahidullah. The third member is Professor Mahbub Ahmed, Department of Accounting Dhaka University. There is however no official confirmation to this. The observation made in

575

respect of HMMS Associates is also applicable to this firm.

7. We feel that there may be some other groups in DSE in disguise but working closely together (as without the separate identify) as buyer/seller influencing the market price as and when they choose to do so.

8. The dealings of the firm indicate manipulation within the meaning of Section 17 of the Securities and Exchange Ordinance, 1069.�

9. The learned Metropolitan Magistrate by an order dated 02.04.1996 took cognizance into the case against the accused petitioners and another under Section 24 of the Securities and Exchange Commission Ordinance,1969.

10. On coming to know about the said fact of taking of cognizance the petitioners voluntarily surrendered before the High Court Division and obtained anticipatory bail and they are now on bail.

11. The case being ready for trial the case record was sent to the learned Metropolitan Sessions Judge, Dhaka and the case was registered as Sessions Case No.607 of 1997.

12. Subsequently, the case was transferred in the Court of Metropolitan Additional Sessions Judge, 3rd Court, Dhaka and renumbered as Sessions Case No 558 of 1999.

13. On 16.03.1999 the date was fixed for framing charge. The accused petitioners on that day filed an application under Section 265C of the Code of Criminal Procedure for discharging them from the charges brought against them on the ground interalia, that the allegations made in the petition of complaint are vague,

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Professor Mahbub Ahmed and others Vs. securities and Exchange Commission (M. Enayetur Rahim, J.)

uncertain and have no materials and ingredients required for an offence under Section 17 of the Securities and Exchange Ordinance,1969; the accused persons have been alleged as the member/ dealer/ broker of Dhaka StockExchange and in such capacity they involved in fraudulent activities in the year 1996 which is totally false concocted, malafide and motivated. The petitioners firm Securities Consulted Ltd. is a Private Ltd. Company registered under the Companies Act and a juristic persons but it is not a syndicate as alleged in the petition of complaint. The complaint is imaginary and baseless, because Securities Consulted Ltd.(SCL), the accused No.1, or Professor Mahbub Ahmed, the accused No.4, were not the members of Dhaka Stock-Exchange or never acted as broker/ dealer in Dhaka Stock-Exchange or Chittagong Stock-Exchange and as such has no access of the place of occurrence as only members have access to Dhaka Stock Exchange or Chittagong Stock Exchange. No allegations have also been made specifically against accused No.2 Mr. M.G. Azam Chowdhury and accused No.3 Mr. Shahidullah.

14. In the said applications it was also stated that there was no sufficient ground to frame charge against the accused persons.

15. The learned Additional Sessions Judge after hearing the respective parties, perusing the petition of complaint and other relevant documents by the order dated 16.03.1999 framed charges against the present accused petitioners under Sections 17(e) (II) (IV) of the Securities and Exchange Ordiance,1969.

16. Thereafter, the petitioners moved this Court individually and obtained the Rules.

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17. Ms. Safayat Sultana Rume the learned Advocate appeared on behalf of Mr. Rokonuddin Mahmud, the learned Advocate for the petitioners.

18. Ms. Safayat Sultana placing the application under Section 561A of the Code of Criminal Procedure and the petition of complaint submits that there being no ingredients of offence under Section 17(e)II)(IV) of the Securities and Exchange Ordinance,1969 and there being no documents in the case to proceed against the accused petitioners, the framing of charge against the petitioner is illegal and they are entitled to be discharged from the case. She further submits that even if the allegations made in the petition of complaint are taken to be true at their face value, no ingredients of offence under Section 17(e)(II)(IV) of the Ordinance,1969 have been disclosed against the petitioners and as such the impugned proceeding is nothing but an abuse of the processes of the Court and to secure ends of justice the proceeding may be quashed. In support of her submission she refers the case of Abdul Quader Chowdhury and others 窶天s- The State, reported in 28 DLR(AD), page-38.

19. On the other hand Mr. A.K.M Ali, the learned Advocate appearing with Mrs. Ayesha Akhter for the complainant opposite party referring the case of Shinepukur Holdings Ltd. & others -Vs- Securities and Exchange Commission and another, reported in 50 DLR(AD), page-189 , submits that the questions raised by the present accusedpetitioners have already been resolved in the said case, particularly with regard to propriety of the petition of complaint, which is similar to the present Case. He further submits that from

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Professor Mahbub Ahmed and others Vs. securities and Exchange Commission (M. Enayetur Rahim, J.)

the plain reading of the petition of complaint it would be evident that offence under Section 17 of the Securities and Exchange Commission Ordinance,1969 have been disclosed against the petitioners in it. Whether the allegations are false or true it will be decided after taking evidence and at this stage when prima-facie case have been disclosed within the mischief of Section 17 of the Securities Exchange, Ordinance,1969 the application under Section 561A of the Code of Criminal Procedure is not maintainable.

20. In this particular case it is very pertinent to mention here that the petitioners after framing the charge filed these applications under Section 561A of the Code of Criminal Procedure for quashing the proceeding. But, did not come before this Court in its Revisional Jurisdiction under Section 439 of the Code of Criminal Procedure against the order framing charge.

577

within the purview of Section 561A for the purpose of quashing a proceeding one of the following condition must be fulfilled: (i)

Interference even at an initial stage may be justified where the facts are so preposterous that even on admitted facts no case stands against the accused.

(ii) Where the institution and continuation of the proceeding amounts to an abuse of the process of the Court. (iii) Where there is a legal bar against the initiation or continuation of the proceeding. (iv) In a case where the allegations in the F.I.R or the petition of complaint, even if taken at their face value and accepted in their entirety, do not constitute the offence alleged and

21. The scope of 561A of the Code of Criminal Procedure has already been decided by our Appellate Division in so many cases Particularly, in the cases of Abdul Quader Chowdhury and others –Vs- The State, reported in 28 DLR(AD), Page-38 (cited by the learned Advocated for the petitioner), Bangladesh –Vs- Tan Kheng Hock, reported in 31 DLR(AD), Page-69, Farruk Ahmed –VsAbdul Kader Chowdhury, reported in 38 DLR(AD), Page-18, Syed Mohammad Hashem alias Hashim –Vs- The State, reported in 48 DLR(AD), Page-87 and Ali Akkas –VsEnayet Hossain and others reported in 17 BLD(AD) page-44 respectively .

23. In the case of Shinepukur Holdings Ltd. and others Vs Securities Exchange Commission and another, reported in 50 DLR(AD), referred by the learned Advocate of the complainant opposite party, it has been categorically held that;

22. In view of the above cited cases it is settled proposition of law that to bring a case

“When the SEC was making a complaint of fraudulent acts against

(v)

The allegations against the accused although constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge.

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Professor Mahbub Ahmed and others Vs. securities and Exchange Commission (M. Enayetur Rahim, J.)

certain companies and their directors on the basis of an enquiry undertaken by an expert committee, a Court would not be well advised not to try to be more expert at the complaint stage because otherwise it will be a example of nipping the prosecution in the bud.�

24. In the case of Securities and Exchange Commission -Vs- Runa N Alam, reported in 57 DLR(AD), page-161 it has been observed that; “It appears that the learned Additional Sessions Judge considered the materials on record and the documents in the case and upon hearing the parties found that there are sufficient materials to proceed against the accused under Section 17 (e)(II)(IV) of the Securities and Exchange Ordinance,1969 and accordingly framed charges instead of discharging the accused. But at the trial before holding the petitioner guilty and convicted the accused could prove that the offence was committed without her knowledge or that she exercised all due diligence to prevent the commission of the offence.�

25. Let us now decide the fate of the present Rules in view of the above settled proposition of law.

26. We have carefully perused and scrutinized the petition of complaint and as well as the order dated 16.03.1999, annexureC, passed by the Additional Sessions Judge in framing charge against the accused petitioner under Section 17(2)(II)(V) of the Securities and Exchange Ordinance, 1969.

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27. In the petition of complaint on the basis of an Enquiry Committee allegations have been made categorically against the accused petitioners to the effect that the accused firm and other accused as dealer/broker in DSE being a syndicate were involved in fraudulent activities in July to December 1996 within the mischief of Section 17 of the Securities and Exchange Ordinance,1969, which were detected by the Enquiry Committee and that according to the enquiry report dated 27.03.1997 in the foreign D/P bank statement there has been huge sales in the account of Securities Consultants Ltd. and total transactions in volume and value of 7,09,530 shares and Tk. 27.14 cores of which unsettled amount was Tk. 2.50 cores, were done by the accused but those were not in SEC or DSE records, and no such trading took place in DSE and that the accused persons as buyer/seller influenced the market price as and when they choose to do so.

28. Section 17 of the Securities and exchange Ordinance 1969 is as under;17. Prohibition of fraudulent acts, etc.No person shall, for the purpose of inducing, dissuading, effecting, preventing or in any manner influencing or turning to his advantage, the sale or purchase of any security, directly or indirectly,(a)

employ any device, scheme or artifice, or engage in any act, practice or course of business, which operates or is intended or calculated to operate as a fraud or deceit upon any person; or

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Professor Mahbub Ahmed and others Vs. securities and Exchange Commission (M. Enayetur Rahim, J.)

(b)

make any suggestion or statement as a fact of that which he does not believe to be true; or

(c)

omit to state or actively conceal a material fact having knowledge or belief of such fact; or

(d)

induce any persons by deceiving him to or omit to do anything which he would not do or omit if he were not so deceived; or

(e)

do any act or practice or engage in a course of business, or omit to do any act which operates or would operate as a fraud, deceit or manipulation upon any person, in particular(i) make any quotation;

fictitious

(ii) create a false and misleading appearance of active trading in any security; (iii) effect any transaction in such security which involves on change in its beneficial ownership; (iv) enter into an order or orders for the purchase and sale of security which will ultimately cancel out each other and will not result in any change in the beneficial ownership of such security; (v) directly or indirectly effect a series of transactions in any security creating the appearance of active trading therein or of raising of price

579

for the purpose of including its purchase by others or depressing its price for the purpose of inducing its sale by other; (vi) being a director or any officer of the issuer of a listed equity security or a beneficial owner of not less than ten percent of such security who is in possession of material facts omit to disclose any such facts while buying or selling such security.

29. If we consider the disclosed allegations, made in the petition of complaint against the petitioners and section 17 of the Securities Exchange Ordinance, 1969 we have no hesitation to hold that those allegations are very much within the mischief of Section 17 of the Securities and Exchange Ordinance 1969.

The accused by their act had affected a series of transactions in various Securities creating the appearance of active trading and as the buyer/ seller influenced the market price when they choose to do so for their advantage. Thus, at this stage there is no scope to hold that the allegations made in the petition of complaint, which based on an enquiry report, are preposterous and the allegations at their face value and entirety do not constitute any offence and the continuation of the proceedings amounts to an abuse of the process of the Court. The allegations made in the petition of complaint are sufficient grounds to proceed with the trial against the accused petitioners.

30. Moreover, the Appellate Division in the case of Shinepukur Holding Ltd. Vs. Securities

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Professor Mahbub Ahmed and others Vs. securities and Exchange Commission (M. Enayetur Rahim, J.)

and Exchange Commission and others, reported in 50 DLR (AD), page-189 disapproved to nipping the prosecution in bud when the Securities Exchange Commission makes a complaint of fraudulent acts against certain Companies and their directors on the basis of an enquiry undertaken by an expert committee and also advised the Court not to be more expert at initial stage.

31. The learned Advocate of the petitioner tried to impress us that there is no sufficient ground for proceeding against the accused persons.

The word ‘sufficient ground for proceeding’ do not mean sufficient grounds for conviction. Prima-facie material is sufficient for forming an opinion to proceed against the accused.

32. The learned Additional Sessions Judge in framing charge against the accused petitioners under Section 17(e)(II)(IV) of the Securities and Exchange Ordiance,1969 categorically and consistently held to the effect:

""Eiu f−rl hš²hÉ c¡¢Mm£ L¡NSfœ Hhw pw¢nÔø AdÉ¡−cn fk¡Ñ−m¡Qe¡ Ll¡ qCmz Eiu f−rl hš²hÉ Hhw c¡¢Mm£ L¡NSfœ p¡r£ p¡h¤c à¡l¡ fËj¡e p¡−f−rÉz ®k−qa¥ E−õ¢Ma AdÉ¡−c−nl 21 d¡l¡ Ae¤p¡−l N¢Wa L¢jne La«ÑL ac¿¹ A−¿¹ Bp¡j£−cl ¢hl¦−Ü B¢ea A¢i−k¡N fË¡b¢jLi¡−h fËj¡¢ea qJu¡u Lj−fÔC−e¾V ¢f¢Vne c¡−ul Ll¡ qCu¡−R Hhw c¡¢Mm£ L¡NSfœ fk¡Ñ−m¡Qe¡ L¢lu¡ Bp¡j£−cl ¢hl¦−Ü A¢i−k¡N NW−el k−bø Ef¡c¡e ¢hcÉ¡j¡e l¢qu¡−R h¢mu¡ ®cM¡ k¡C−a−R ®p−qa¥ p¡r£ p¡h¤c à¡l¡ fËj¡e hÉ¢a−l−L HC j¤ý−aÑ Ap¡j£−cl A¢i−k¡−Nl c¡u qC−a AhÉ¡q¢a ®cJu¡l B−c± ®L¡e eÉ¡u pwNa L¡lZ e¡ b¡L¡u Bp¡j£ f−rl ®g±x L¡x ¢hx 265 ¢p d¡l¡l B−hce e¡ j”¤l Ll¡ ®Nmz Bp¡j£l¡ BCe J ¢h¢d h¢qi¨Ña f¿Û¡u ®nu¡l h¡S¡l−L A°hdi¡−h fËi¡h¡¢eÄa L¢lu¡ L«¢œj EµQ j§−mÉ h¡S¡l pª¢ø L¢lu¡−R k¡q¡ 1969 p¡−ml

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¢p¢LE¢l¢VS J HLÈ−Q” AdÉ¡−c−nl ®pLne 17(2) (zz) (v) Ae¤k¡u£ Hhw Eš² BC−el ®pLne 24 Ae¤k¡u£ n¡¢Ù¹ ®k¡NÉ Afl¡d L¢lu¡−R -----------------------------z'' 33. In view of the said clear findings of the learned Additional Sessions Judge in disposing an application under Section 561A of the Code of Criminal Procedure it is very difficult to hold that in the petition of complaint no offence has been disclosed within the mischief of Section 17 of the Securities and Exchange Ordinance, 1969 or the allegations are so preposterous or the impugned proceeding amounts to an abuse of the process of the Court.

34. It also manifests from the order framing charge against the accused petitioners, annexure-C, that the learned Additional Sessions Judge had considered the materials on record and the submissions advanced on behalf of the learned Advocates of the respective parties. As such there is no scope to say that the learned Additional Sessions Judge did not apply its judicial mind in framing charge against the accused petitioners and violated the mandatory provision of section 265C of the Code of Criminal Procedure and the charge has been framed mechanically. Thus, the order framing charge against the accused petitioners has not suffered from any illegality or infirmity which can be interfered or quashed.

35. The case of Abdul Quader Chowdhury and others –Vs- The State, reported in 28 DLR(AD), Page-38, as cited by the learned Advocate of the petitioners will not help the petitioners. Rather, it will go against the petitioners. In the above case in paragraphs 9 and 10 it has been observed by the Appellate Division to the effect;

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Professor Mahbub Ahmed and others Vs. securities and Exchange Commission (M. Enayetur Rahim, J.)

“9......................................

The power to quash a proceeding under this section being in its nature extraordinary, it should be exercised sparingly, carefully and only where such exercise is justified to prevent the abuse of the process of the Court and to do the real and substantial Justice for the administration of which alone the Court exists.

10. The inherent jurisdiction should not be invoked where some other remedy is available. The jurisdiction given by section 561A is neither an alternative jurisdiction nor an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the code itself. This power can not be so utilised as to interrupt or divert the ordinary course of Criminal procedure as laid down in the Code.�

36. Having regard to fact that the petitioners did not challenge the order of framing charges against them by filing revisional application under Section 439 of the Code of Criminal Procedure but, they filed applications under Section 561A of the Code of Criminal Procedure to quash the entire proceeding. In such facts and circumstances we are unable to exercise the power under Section 561A of the Code of Criminal procedure to interrupt or divert the ordinary course of Criminal Procedure as laid down in the Code.

37. 36. In this particular case it is very pertinent to discuss about Section 24 of the Securities and Exchange Ordinance, 1969.

Section 24 of the securities and Exchange Ordinance 1969 is as under: (1) Whenever contravenes the provision of section 17 shall be punish with imprison-

581

ment a term which may be extended to 5 years or with fined which may extended to 5 lack taka with both.

(2) where the person guilty of an offence referred to sub-section (1) is a company or other body corporate, even Director, Manager or other Officer responsible for the conduct of its affairs shall, unless he proves that the offence was committed without his knowledge or that he exercised all diligent to prevent its commission be deemed to be guilty of the offence.

38. According to sub-section (2) of Section 24 of Securities Exchange Ordinance, 1969 the onus lies on the accused to prove that he is not guilty of the alleged offence. This provision of law is some extend different from ordinary Criminal Jurisprudence, that the prosecution has to prove its Case.

39. Having discussed as above, we find no merit in the Rules.

40. Accordingly, all the three Rules are discharged.

41. The order of stay passed at the time of issuance of the Rules are hereby recalled and vacated.

42. The learned Metropolitan Additional Sessions Judge, 3rd Court, Dhaka is directed to proceed with the trial in accordance with law.

43. Since it is an old case and considering the cry of a large number of victims of share market, the trial Court is also directed to conclude the trial as expeditiously as possible preferably within 6(six) months from the date of the receipt of this judgment.

Communicate the Judgment and order at once.

Ed.

124

A. K. Azad and another Vs. Mostafizur Rahman and others. (Syed Mahmud Hossain, J.)

APPELLATE DIVISION (CIVIL)

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defendant No.1 had sign the bainapatra by obtaining the opinion of the hand writing expert. When appeal is the continuation of Mr. Surendra Kumar } A. K. Azad and . the suit for which the appellate court in a fit another Sinha, J. …Appellants case can obtain additional evidence. The Mr. Md. Abdul appellate court did not exceed its } Wahhab Miah, J. VS jurisdiction in taking opinion of the hand Mrs. Nazmun Ara } Mostafizur writing expert.

Sultana, J. Rahman and The finding of the High Court Division that Mr. Justice Syed others.

Mahmud Hossain } ....Respondents defendant No.1 did not challenge the genuineness of his signature on the Mr. Justice Md. } ‘bainapatra’ in the trial Court is wrong as Shamsul Huda, J. defendant No.1 in his written statement Judgment stated in no uncertain terms that he did not } 13th June, 2012. sign the ‘bainapatra’ and that his signature was forged in the bainapatra. Such being the state of affairs, the onus shifted on the Evidence Act (I of 1872) plaintiff to show that defendant No.1, in Sections 45 and 137 From the cross-examination of the fact, signed the bainapatra by obtaining the handwriting expert, it appears that the opinion of the handwriting expert. The High plaintiff did not at all challenge the opinion Court Division took serious exception to the of the handwriting expert. The plaintiff appellate Court’s decision of obtaining asked some questions to the handwriting opinion of the handwriting expert. It must expert without confronting her about the be borne in mind that appeal is the veracity of her opinion. Therefore, it continuation of the suit and the appellate appears that the plaintiff could not shake Court has similar power like that of the trial the credibility of the opinion of the Court and the appellate Court in appropriate cases can obtain additional handwriting expert. …(18) evidence to come to a correct decision. By Code of Civil Procedure (V of 1908) taking opinion of the handwriting expert, Order XLI, rule 27 the appellate Court did not exceed its Evidence Act (I of 1872) jurisdiction. ….(20) Sections 45 and 101 When the defendant No.1 in his written Code of Civil Procedure (V of 1908) statement stated that he did not sign the Order XLI, rule 31 bainapatra and as such signature was The appellate court came to a definite forged as a result of which the onus was finding that the plaintiff could not prove the shifted upon the plaintiff to prove that alleged contract but the High Court Division without revering such finding illegally made the rule absolute. ...(21)

CIVIL APPEAL NO. 283 OF 2010 with CIVIL PETITION FOR LEAVE TO APPEAL NO. 73 OF 2012.

(Arising out of Civil Revision No. 2910 of 2009 and Civil Revision No. 2385 of 2011)

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A. K. Azad and another Vs. Mostafizur Rahman and others. (Syed Mahmud Hossain, J.)

Mr. Abdul Wadud Bhuiyan, Senior Advocate, instructed Mrs. Sufia Khatun, Advocate-onRecord. ......For the Appellants.

Mr. Harendra Nath Nandi, Advocate, instructed by Mrs. Sufia Khatun, Advocate-onRecord. ....For the Petitioners Mr. Mahbubey Alam, Senior Advocate, instructed by Mr. Zainul Abedin, Advocate-onRecord. ‌For Respondent No.1 Not represented.

....Respondent Nos. 2-3.

Not represented.

‌For the Respondents Judgment

Syed Mahmud Hossain, J:

This appeal by leave by the appellants is from the judgment and order dated 10.11.2009 passed by the High Court Division in Civil Revision No. 2910 of 2009 making the Rule absolute setting aside those dated 04.08.2009 passed by the learned Additional District Judge, Second Court, Dhaka in Title Appeal No.370 of 2003 allowing the appeal and reversing those dated 09.08.2003 passed by the Senior Assistant Judge, Sixth Court, Dhaka in Title Suit No.195 of 2002 decreeing the suit.

2. The facts leading to the filing of this appeal, in short, are as follows: The petitioners as the plaintiffs filed Title Suit No.195 of 2002 in Sixth Court of Senior Assistant Judge, Dhaka for specific performance of contract, for executing a deed of sale and for recovery of khas possession against the defendants.

125

3. On 03.03.2002, defendant No.1 executed a bainapatra in favour of the plaintiff on receipt of Tk. 50,000/- out of the total consideration of Tk. 60,000/- for selling the land appended in the schedule to the plaint. On the date of bainapatra it was stipulated that the plaintiff would give the balance amount of Tk. 10,000/- within three months and that defendant No.1 would execute and register deed of sale in favour of the plaintiff. Defendant No.1 did not take the balance consideration money and at last on 25.07.2002 denied taking the balance consideration money. He also denied executing the deed of sale in presence of the witnesses. Hence the plaintiff filed the suit.

4. Defendant No.1 contested the suit by filing written statement denying the material statements made in the plaint. His case, in short, is that the suit is bad for defect of parties and barred by law of limitation. The bainapatra dated 03.03.2002 is forged and is created by the plaintiff.

Defendant No.1 did not take any money from the plaintiff. The case is totally false and fabricated. In such view of the matter, the suit is liable to be dismissed.

5. The trial Court decreed the suit by judgment and order dated 09.08.2003.

6. Against the judgment and decree of the trial Court, defendant Nos.1 and 2 preferred Title Appeal No. 370 of 2003 before the District Judge, Dhaka. On transfer, the appeal was heard by the learned Additional District Judge, Second Court, Dhaka, who by the judgment and order dated 04.08.2009 allowed the appeal

126

A. K. Azad and another Vs. Mostafizur Rahman and others. (Syed Mahmud Hossain, J.)

reversing the judgment and decree passed by the trial Court.

7. Against the judgment and decree passed by the appellate Court, the plaintiff filed a revisional application before the High Court Division and obtained Rule in Civil Revision No. 2910 of 2009. The High Court Division made the Rule absolute by the judgment and order dated 10.11.2009.

8. Feeling aggrieved by and dissatisfied with judgment and order dated 10.11.2009 passed by the High Court Division, the defendants moved this Division by filing Civil Petition for Leave to Appeal No. 2505 of 2009 in which leave was granted on 04.07.2010 resulting in the initiation of Civil Appeal No. 283 of 2010.

9. Mr. Abdul Wadud Bhuiyan, learned Senior Advocate, appearing on behalf of the appellants, submits that the High Court Division committed illegality in holding that there is no scope for obtaining the opinion of the handwriting expert at the appellate stage although appeal is the continuation of the suit and that defendant No.1 rightly prayed for additional evidence at the appellate stage and as such, the impugned judgment should be set aside. He further submits that the High Court Division came to the finding that defendant No.1 did not raise the question of genuineness of his signature on the ‘bainapatra’ at the trial and that no such issue was framed in the trial Court to that effect although defendant No.1 in his written statement in an unequivocal terms stated that his signature appearing on the ‘bainapatra’ was forged

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and as such, the impugned judgment should be set aside. He then submits that the P.Ws. could not prove execution and passing of consideration money and in such state of affairs, a suit for specific performance of contract could not be decreed.

10. Mr. Mahbubey Alam, learned Senior Advocate appearing on behalf of respondent No.1, on the other hand, submits that the trial Court compared the signature of defendant No.1 appearing on the ‘bainapatra’ with his admitted signature according to the provision of section 73 of the Evidence Act and there was no scope for obtaining opinion of the handwriting expert at the appellate stage and as such, no interference is called for by this Division. He further submits that the grounds on which leave has been granted had already been addressed by the High Court Division and as such, the impugned judgment should not be set aside.

11. We have considered the impugned judgment, the submissions of the learned Advocates and the papers incorporated in the paper book.

12. Before addressing the submissions of the learned Advocates, it is necessary to quote the submissions on which leave was granted as under: I.

The trial Court by order No.11 dated 23.03.2003 noticed about filing of an application by the defendant for expert opinion in respect of the signatures appearing in the ‘bainapatra’ and also directed the plaintiff to submit the disputed ‘bainapatra’ to the Court and the

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A. K. Azad and another Vs. Mostafizur Rahman and others. (Syed Mahmud Hossain, J.)

‘bainapatra’ was filed on 31.03.2003 but the Court did not pass any order for examination of the signatures by an expert and without ascertaining the genuineness of the signature observed that the ‘bainapatra’ is genuine and in the face of such facts, the findings by the High Court Division that the defendant raised no question about the genuineness of the signature of the ‘bainapartra’ in the trial Court and raised the same for the first time before the Court of appeal below is misconceived, baseless and perverse.

II. The Court of appeal below found that the expert’s opinion obtained with modern scientific instrument disclosed that the signature of the defendant in the ‘bainapatra’ is false and forged and on the other hand, the P. Ws. could not prove that the defendant signed the ‘bainaparta’ nor could prove payment of the amount consideration to the defendant and with the findings the Court of appeal below reversed the finding of the trial Court and the High Court Division failed to show that these findings are perverse, baseless and illegal and therefore, the findings of the Court of appeal below being the findings of fact, these findings are binding upon the High Court Division.

13. It appears that by Order No.11 dated 23.03.2003 the trial Court noticed about filing of an application by defendant No.1 for expert’s opinion in respect of the

127

signatures appearing on the ‘bainapatra’ and directed the plaintiff to submit the disputed ‘bainapatra’ to the Court and the ‘bianapatra’ was filed on 31.03.2003. But the trial Court did not pass any order for examination of the signatures by an expert and without ascertaining the genuineness of the signatures observed that the disputed ‘bainapatra’ was genuine.

14. During pendency of the appeal, the defendant-appellant filed an application on 16.05.2004 praying for obtaining the opinion of handwriting expert to ascertain the genuineness of his signature appearing on the bainapatra dated 30.03.2002 with some of his admitted signatures. The said application was allowed. On 06.11.2004, the appellate Court received the opinion of the handwriting expert by a memo dated 05.10.2004. The order allowing the prayer for obtaining opinion of the handwriting expert was challenged before both the Divisions of this Court and was upheld.

Because of the order of stay passed at different stages, the handwriting expert could not complete her deposition before the Court. On 11.06.2009, the hand writing expert completed her deposition.

15. Having considered the opinion of the handwriting expert and the evidence of the P.Ws., the appellate Court came to a finding that the signature of defendant No.1 appearing on the ‘bainapatra’ was not genuine and that the plaintiff could not prove the bainapatra.

16. Mr. Abdul Wadud Bhuiyan, learned Advocate appearing on behalf of the appellants read out the depositions of

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A. K. Azad and another Vs. Mostafizur Rahman and others. (Syed Mahmud Hossain, J.)

the P.Ws. From the evidence of P.Ws.1, 2, 3 and 4, it appears that they did not state anything about execution of the ‘bainapatra’ by defendant No.1 in their evidence.

17. What is important to note here is that execution consists in signing a document read out and understood and does not consist of merely signing a name upon a blank sheet of paper. To be executed a document must be in existence.

18. From the cross-examination of the handwriting expert, it appears that the plaintiff did not at all challenge the opinion of the handwriting expert. The plaintiff asked some questions to the handwriting expert without confronting her about the veracity of her opinion. Therefore, it appears that the plaintiff could not shake the credibility of the opinion of the handwriting expert.

19. Mr. Abdul Wadud Bhuiyan, learned Advocate has drawn our attention to the fact that before filing of the suit for specific performance of contract, defendant No.1 filed a miscellaneous case for preemption against the plaintiff. He, therefore, submits that in view of the strained relationship between the parties, the question of entering into a contract by defendant No.1 with the plaintiff did not arise. This submission of the learned Advocate can not be brushed aside.

20. The finding of the High Court Division that defendant No.1 did not challenge the genuineness of his signature on the ‘bainapatra’ in the trial Court is wrong as defendant No.1 in his written statement stated in no uncertain terms that

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he did not sign the ‘bainapatra’ and that his signature was forged in the bainapatra.

Such being the state of affairs, the onus shifted on the plaintiff to show that defendant No.1, in fact, signed the bainapatra by obtaining the opinion of the handwriting expert. The High Court Division took serious exception to the appellate Court’s decision of obtaining opinion of the handwriting expert. It must be borne in mind that appeal is the continuation of the suit and the appellate Court has similar power like that of the trial Court and the appellate Court in appropriate cases can obtain additional evidence to come to a correct decision. By taking opinion of the handwriting expert, the appellate Court did not exceed its jurisdiction.

21. The appellate Court being the final Court of fact came to a definite finding that the plaintiff could not prove the alleged contract and the High Court Division without reversing the findings of the appellate Court with reference to the evidence on record made the Rule absolute setting aside the judgment and decree of the appellate Court.

22. In the light of the findings made before, we find that the impugned judgment and order passed by the High Court Division can not sustain in law.

23. Accordingly, the appeal is allowed without any order as to costs.

Civil Petition for Leave to Appeal No.73 of 2012 arising out of an order rejecting the application for rejection of plaint has become infructuous as the appeal is allowed. Therefore, the civil petition is dismissed as being infructuous.

Ed.

574

Professor Mahbub Ahmed and others Vs. securities and Exchange Commission (M. Enayetur Rahim, J.)

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are very much attracted the provisions of section 17 of the said Ordinance. As the accused by their act had affected a series of transactions in various securities creating the appearance of the active trading and as the buyer/ seller influenced the market price when they choose to do so for their free value and entirety do not constitute any offence. ...(28)

securities and Exchange Commission–VsRuna N Alam,57DLR (AD) 161, ref.

Code of Criminal Procedure (V of 1898) Sections 439 and 561A The petitioners having not challenged the order of framing charges against them by filing revisional application under section 439 of the Code but filed applications under section 561A of the Code to quash the entire proceeding for which the power under section 561A of the Code cannot be invoked to interrupt or divert the ordinary course of Criminal Procedure. ....(35)

Judgment

Securities Exchange Ordinance (XVII of 1969) Section 24(2) In view of provision of section 24(2) of Securities Exchange Ordinance, 1969 onus lies on the accused to prove that he is not guilty of the alleged offence which is different from ordinary criminal jurisprudence, that the prosecution has to prove its case. ...(37) Abdul Quader Chowdhury and others –Vs- The State,28 DLR(AD), Page-38; Shinepukur Holding Ltd and Others–Vs- Securities and Exchange Commission and another,50 DLR(AD)189; Bangladesh –Vs- Tan Kheng Hock 31 DLR(AD),69, Farruk Ahmed –VsAbdul Kader Chowdhury 38 DLR(AD)18, Syed Mohammad Hashem alias Hashim –Vs- The State,48 DLR(AD)87; Ali Akkas –Vs- Enayet Hossain and others 17 BLD(AD)44 and

Ms. Safayat Sultana Rume, Advocate on behalf of Mr. Rokonuddin Mahmud, Advocate -For the Petitioners Mr. A.K.M Ali, Advocate with Ms. Ayesha Akhter, Advocates, ---For the Opposite Party

M. Enayetur Rahim, J: By filing 3(three) separate applications under Section 561A of the Code of Criminal Procedure, three accused persons of Sessions Case No.607 of 1997, subsequently renumbered as sessions Case No. 558 of 1999, arising out of complaint petition Case No.1081 of 1997 obtained the present Rules calling upon the opposite party to show cause as to why the proceeding of the said sessions case should not be quashed.

2. Since the facts and questions of law are same in all the Rules, those are being disposed of by this common judgment.

3. The opposite party Securities and Exchange Commission filed petition of complaint in the Court of Chief Metropolitan Magistrate, Dhaka which was registered as complaint petition case No.1081 of 1997 against the present petitioners and another namely Securities Consultants Ltd. stating, inter alia, that the accused firm and other accused persons act as dealers/brokers in Dhaka Stock-Exchange and in such capacity of the dealer/broker were involved in fraudulent activities in the year 1996 during the month of July to December within the mischief of Section 17 of the Securities and Exchange

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Professor Mahbub Ahmed and others Vs. securities and Exchange Commission (M. Enayetur Rahim, J.)

Ordinance,1969. This offence was detected by an Enquiry Committee formed by the Securities and Exchange Commission to enquire into the matter under Section 21 of the Securities and Exchange Ordinance, 1969.

4. According to the enquiry report dated 27.03.1997 the accused persons being dealer/broker committed offence described in section 17 of the Securities and Exchange Ordinance, 1969 and as such is liable to be punished under Section 24 of the Securities and Exchange Ordinance, 1969.

5. The finding of the Enquiry Committee regarding the accused persons runs as follows: “Securities Consultants Ltd. In foreign DVP bank statement there has been huge sales in this A/C. Total transactions in volume and value are 7,09,530 nos. and Tk.27.14 cores respectively. Unsettled amount is Tk.2.50 cores. There is no such name in SEC & DSE list. No trading has also taken place in DSE in this name. Major trading are in the shares of Beximco Pharma (1,71,450) Shine Pukur (1,00,000) Dynamic Textile (1,20,000), Mita Textile (89,900), Orion In fusion (73,680), Beximco Fisheries (50,000), Apex Footwear (37,500), Padma Textile (25,000).

6. The Committee fond no trading of these transactions in DSE. However, the Committee could gather that it is a syndicate comprising three members. Two are brokers of DSE namely Mr. M.G. Azam Chowdhury and Mr. Shahidullah. The third member is Professor Mahbub Ahmed, Department of Accounting Dhaka University. There is however no official confirmation to this. The observation made in

575

respect of HMMS Associates is also applicable to this firm.

7. We feel that there may be some other groups in DSE in disguise but working closely together (as without the separate identify) as buyer/seller influencing the market price as and when they choose to do so.

8. The dealings of the firm indicate manipulation within the meaning of Section 17 of the Securities and Exchange Ordinance, 1069.�

9. The learned Metropolitan Magistrate by an order dated 02.04.1996 took cognizance into the case against the accused petitioners and another under Section 24 of the Securities and Exchange Commission Ordinance,1969.

10. On coming to know about the said fact of taking of cognizance the petitioners voluntarily surrendered before the High Court Division and obtained anticipatory bail and they are now on bail.

11. The case being ready for trial the case record was sent to the learned Metropolitan Sessions Judge, Dhaka and the case was registered as Sessions Case No.607 of 1997.

12. Subsequently, the case was transferred in the Court of Metropolitan Additional Sessions Judge, 3rd Court, Dhaka and renumbered as Sessions Case No 558 of 1999.

13. On 16.03.1999 the date was fixed for framing charge. The accused petitioners on that day filed an application under Section 265C of the Code of Criminal Procedure for discharging them from the charges brought against them on the ground interalia, that the allegations made in the petition of complaint are vague,

576

Professor Mahbub Ahmed and others Vs. securities and Exchange Commission (M. Enayetur Rahim, J.)

uncertain and have no materials and ingredients required for an offence under Section 17 of the Securities and Exchange Ordinance,1969; the accused persons have been alleged as the member/ dealer/ broker of Dhaka StockExchange and in such capacity they involved in fraudulent activities in the year 1996 which is totally false concocted, malafide and motivated. The petitioners firm Securities Consulted Ltd. is a Private Ltd. Company registered under the Companies Act and a juristic persons but it is not a syndicate as alleged in the petition of complaint. The complaint is imaginary and baseless, because Securities Consulted Ltd.(SCL), the accused No.1, or Professor Mahbub Ahmed, the accused No.4, were not the members of Dhaka Stock-Exchange or never acted as broker/ dealer in Dhaka Stock-Exchange or Chittagong Stock-Exchange and as such has no access of the place of occurrence as only members have access to Dhaka Stock Exchange or Chittagong Stock Exchange. No allegations have also been made specifically against accused No.2 Mr. M.G. Azam Chowdhury and accused No.3 Mr. Shahidullah.

14. In the said applications it was also stated that there was no sufficient ground to frame charge against the accused persons.

15. The learned Additional Sessions Judge after hearing the respective parties, perusing the petition of complaint and other relevant documents by the order dated 16.03.1999 framed charges against the present accused petitioners under Sections 17(e) (II) (IV) of the Securities and Exchange Ordiance,1969.

16. Thereafter, the petitioners moved this Court individually and obtained the Rules.

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17. Ms. Safayat Sultana Rume the learned Advocate appeared on behalf of Mr. Rokonuddin Mahmud, the learned Advocate for the petitioners.

18. Ms. Safayat Sultana placing the application under Section 561A of the Code of Criminal Procedure and the petition of complaint submits that there being no ingredients of offence under Section 17(e)II)(IV) of the Securities and Exchange Ordinance,1969 and there being no documents in the case to proceed against the accused petitioners, the framing of charge against the petitioner is illegal and they are entitled to be discharged from the case. She further submits that even if the allegations made in the petition of complaint are taken to be true at their face value, no ingredients of offence under Section 17(e)(II)(IV) of the Ordinance,1969 have been disclosed against the petitioners and as such the impugned proceeding is nothing but an abuse of the processes of the Court and to secure ends of justice the proceeding may be quashed. In support of her submission she refers the case of Abdul Quader Chowdhury and others 窶天s- The State, reported in 28 DLR(AD), page-38.

19. On the other hand Mr. A.K.M Ali, the learned Advocate appearing with Mrs. Ayesha Akhter for the complainant opposite party referring the case of Shinepukur Holdings Ltd. & others -Vs- Securities and Exchange Commission and another, reported in 50 DLR(AD), page-189 , submits that the questions raised by the present accusedpetitioners have already been resolved in the said case, particularly with regard to propriety of the petition of complaint, which is similar to the present Case. He further submits that from

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Professor Mahbub Ahmed and others Vs. securities and Exchange Commission (M. Enayetur Rahim, J.)

the plain reading of the petition of complaint it would be evident that offence under Section 17 of the Securities and Exchange Commission Ordinance,1969 have been disclosed against the petitioners in it. Whether the allegations are false or true it will be decided after taking evidence and at this stage when prima-facie case have been disclosed within the mischief of Section 17 of the Securities Exchange, Ordinance,1969 the application under Section 561A of the Code of Criminal Procedure is not maintainable.

20. In this particular case it is very pertinent to mention here that the petitioners after framing the charge filed these applications under Section 561A of the Code of Criminal Procedure for quashing the proceeding. But, did not come before this Court in its Revisional Jurisdiction under Section 439 of the Code of Criminal Procedure against the order framing charge.

577

within the purview of Section 561A for the purpose of quashing a proceeding one of the following condition must be fulfilled: (i)

Interference even at an initial stage may be justified where the facts are so preposterous that even on admitted facts no case stands against the accused.

(ii) Where the institution and continuation of the proceeding amounts to an abuse of the process of the Court. (iii) Where there is a legal bar against the initiation or continuation of the proceeding. (iv) In a case where the allegations in the F.I.R or the petition of complaint, even if taken at their face value and accepted in their entirety, do not constitute the offence alleged and

21. The scope of 561A of the Code of Criminal Procedure has already been decided by our Appellate Division in so many cases Particularly, in the cases of Abdul Quader Chowdhury and others –Vs- The State, reported in 28 DLR(AD), Page-38 (cited by the learned Advocated for the petitioner), Bangladesh –Vs- Tan Kheng Hock, reported in 31 DLR(AD), Page-69, Farruk Ahmed –VsAbdul Kader Chowdhury, reported in 38 DLR(AD), Page-18, Syed Mohammad Hashem alias Hashim –Vs- The State, reported in 48 DLR(AD), Page-87 and Ali Akkas –VsEnayet Hossain and others reported in 17 BLD(AD) page-44 respectively .

23. In the case of Shinepukur Holdings Ltd. and others Vs Securities Exchange Commission and another, reported in 50 DLR(AD), referred by the learned Advocate of the complainant opposite party, it has been categorically held that;

22. In view of the above cited cases it is settled proposition of law that to bring a case

“When the SEC was making a complaint of fraudulent acts against

(v)

The allegations against the accused although constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge.

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Professor Mahbub Ahmed and others Vs. securities and Exchange Commission (M. Enayetur Rahim, J.)

certain companies and their directors on the basis of an enquiry undertaken by an expert committee, a Court would not be well advised not to try to be more expert at the complaint stage because otherwise it will be a example of nipping the prosecution in the bud.�

24. In the case of Securities and Exchange Commission -Vs- Runa N Alam, reported in 57 DLR(AD), page-161 it has been observed that; “It appears that the learned Additional Sessions Judge considered the materials on record and the documents in the case and upon hearing the parties found that there are sufficient materials to proceed against the accused under Section 17 (e)(II)(IV) of the Securities and Exchange Ordinance,1969 and accordingly framed charges instead of discharging the accused. But at the trial before holding the petitioner guilty and convicted the accused could prove that the offence was committed without her knowledge or that she exercised all due diligence to prevent the commission of the offence.�

25. Let us now decide the fate of the present Rules in view of the above settled proposition of law.

26. We have carefully perused and scrutinized the petition of complaint and as well as the order dated 16.03.1999, annexureC, passed by the Additional Sessions Judge in framing charge against the accused petitioner under Section 17(2)(II)(V) of the Securities and Exchange Ordinance, 1969.

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27. In the petition of complaint on the basis of an Enquiry Committee allegations have been made categorically against the accused petitioners to the effect that the accused firm and other accused as dealer/broker in DSE being a syndicate were involved in fraudulent activities in July to December 1996 within the mischief of Section 17 of the Securities and Exchange Ordinance,1969, which were detected by the Enquiry Committee and that according to the enquiry report dated 27.03.1997 in the foreign D/P bank statement there has been huge sales in the account of Securities Consultants Ltd. and total transactions in volume and value of 7,09,530 shares and Tk. 27.14 cores of which unsettled amount was Tk. 2.50 cores, were done by the accused but those were not in SEC or DSE records, and no such trading took place in DSE and that the accused persons as buyer/seller influenced the market price as and when they choose to do so.

28. Section 17 of the Securities and exchange Ordinance 1969 is as under;17. Prohibition of fraudulent acts, etc.No person shall, for the purpose of inducing, dissuading, effecting, preventing or in any manner influencing or turning to his advantage, the sale or purchase of any security, directly or indirectly,(a)

employ any device, scheme or artifice, or engage in any act, practice or course of business, which operates or is intended or calculated to operate as a fraud or deceit upon any person; or

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Professor Mahbub Ahmed and others Vs. securities and Exchange Commission (M. Enayetur Rahim, J.)

(b)

make any suggestion or statement as a fact of that which he does not believe to be true; or

(c)

omit to state or actively conceal a material fact having knowledge or belief of such fact; or

(d)

induce any persons by deceiving him to or omit to do anything which he would not do or omit if he were not so deceived; or

(e)

do any act or practice or engage in a course of business, or omit to do any act which operates or would operate as a fraud, deceit or manipulation upon any person, in particular(i) make any quotation;

fictitious

(ii) create a false and misleading appearance of active trading in any security; (iii) effect any transaction in such security which involves on change in its beneficial ownership; (iv) enter into an order or orders for the purchase and sale of security which will ultimately cancel out each other and will not result in any change in the beneficial ownership of such security; (v) directly or indirectly effect a series of transactions in any security creating the appearance of active trading therein or of raising of price

579

for the purpose of including its purchase by others or depressing its price for the purpose of inducing its sale by other; (vi) being a director or any officer of the issuer of a listed equity security or a beneficial owner of not less than ten percent of such security who is in possession of material facts omit to disclose any such facts while buying or selling such security.

29. If we consider the disclosed allegations, made in the petition of complaint against the petitioners and section 17 of the Securities Exchange Ordinance, 1969 we have no hesitation to hold that those allegations are very much within the mischief of Section 17 of the Securities and Exchange Ordinance 1969.

The accused by their act had affected a series of transactions in various Securities creating the appearance of active trading and as the buyer/ seller influenced the market price when they choose to do so for their advantage. Thus, at this stage there is no scope to hold that the allegations made in the petition of complaint, which based on an enquiry report, are preposterous and the allegations at their face value and entirety do not constitute any offence and the continuation of the proceedings amounts to an abuse of the process of the Court. The allegations made in the petition of complaint are sufficient grounds to proceed with the trial against the accused petitioners.

30. Moreover, the Appellate Division in the case of Shinepukur Holding Ltd. Vs. Securities

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Professor Mahbub Ahmed and others Vs. securities and Exchange Commission (M. Enayetur Rahim, J.)

and Exchange Commission and others, reported in 50 DLR (AD), page-189 disapproved to nipping the prosecution in bud when the Securities Exchange Commission makes a complaint of fraudulent acts against certain Companies and their directors on the basis of an enquiry undertaken by an expert committee and also advised the Court not to be more expert at initial stage.

31. The learned Advocate of the petitioner tried to impress us that there is no sufficient ground for proceeding against the accused persons.

The word ‘sufficient ground for proceeding’ do not mean sufficient grounds for conviction. Prima-facie material is sufficient for forming an opinion to proceed against the accused.

32. The learned Additional Sessions Judge in framing charge against the accused petitioners under Section 17(e)(II)(IV) of the Securities and Exchange Ordiance,1969 categorically and consistently held to the effect:

""Eiu f−rl hš²hÉ c¡¢Mm£ L¡NSfœ Hhw pw¢nÔø AdÉ¡−cn fk¡Ñ−m¡Qe¡ Ll¡ qCmz Eiu f−rl hš²hÉ Hhw c¡¢Mm£ L¡NSfœ p¡r£ p¡h¤c à¡l¡ fËj¡e p¡−f−rÉz ®k−qa¥ E−õ¢Ma AdÉ¡−c−nl 21 d¡l¡ Ae¤p¡−l N¢Wa L¢jne La«ÑL ac¿¹ A−¿¹ Bp¡j£−cl ¢hl¦−Ü B¢ea A¢i−k¡N fË¡b¢jLi¡−h fËj¡¢ea qJu¡u Lj−fÔC−e¾V ¢f¢Vne c¡−ul Ll¡ qCu¡−R Hhw c¡¢Mm£ L¡NSfœ fk¡Ñ−m¡Qe¡ L¢lu¡ Bp¡j£−cl ¢hl¦−Ü A¢i−k¡N NW−el k−bø Ef¡c¡e ¢hcÉ¡j¡e l¢qu¡−R h¢mu¡ ®cM¡ k¡C−a−R ®p−qa¥ p¡r£ p¡h¤c à¡l¡ fËj¡e hÉ¢a−l−L HC j¤ý−aÑ Ap¡j£−cl A¢i−k¡−Nl c¡u qC−a AhÉ¡q¢a ®cJu¡l B−c± ®L¡e eÉ¡u pwNa L¡lZ e¡ b¡L¡u Bp¡j£ f−rl ®g±x L¡x ¢hx 265 ¢p d¡l¡l B−hce e¡ j”¤l Ll¡ ®Nmz Bp¡j£l¡ BCe J ¢h¢d h¢qi¨Ña f¿Û¡u ®nu¡l h¡S¡l−L A°hdi¡−h fËi¡h¡¢eÄa L¢lu¡ L«¢œj EµQ j§−mÉ h¡S¡l pª¢ø L¢lu¡−R k¡q¡ 1969 p¡−ml

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¢p¢LE¢l¢VS J HLÈ−Q” AdÉ¡−c−nl ®pLne 17(2) (zz) (v) Ae¤k¡u£ Hhw Eš² BC−el ®pLne 24 Ae¤k¡u£ n¡¢Ù¹ ®k¡NÉ Afl¡d L¢lu¡−R -----------------------------z'' 33. In view of the said clear findings of the learned Additional Sessions Judge in disposing an application under Section 561A of the Code of Criminal Procedure it is very difficult to hold that in the petition of complaint no offence has been disclosed within the mischief of Section 17 of the Securities and Exchange Ordinance, 1969 or the allegations are so preposterous or the impugned proceeding amounts to an abuse of the process of the Court.

34. It also manifests from the order framing charge against the accused petitioners, annexure-C, that the learned Additional Sessions Judge had considered the materials on record and the submissions advanced on behalf of the learned Advocates of the respective parties. As such there is no scope to say that the learned Additional Sessions Judge did not apply its judicial mind in framing charge against the accused petitioners and violated the mandatory provision of section 265C of the Code of Criminal Procedure and the charge has been framed mechanically. Thus, the order framing charge against the accused petitioners has not suffered from any illegality or infirmity which can be interfered or quashed.

35. The case of Abdul Quader Chowdhury and others –Vs- The State, reported in 28 DLR(AD), Page-38, as cited by the learned Advocate of the petitioners will not help the petitioners. Rather, it will go against the petitioners. In the above case in paragraphs 9 and 10 it has been observed by the Appellate Division to the effect;

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“9......................................

The power to quash a proceeding under this section being in its nature extraordinary, it should be exercised sparingly, carefully and only where such exercise is justified to prevent the abuse of the process of the Court and to do the real and substantial Justice for the administration of which alone the Court exists.

10. The inherent jurisdiction should not be invoked where some other remedy is available. The jurisdiction given by section 561A is neither an alternative jurisdiction nor an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the code itself. This power can not be so utilised as to interrupt or divert the ordinary course of Criminal procedure as laid down in the Code.�

36. Having regard to fact that the petitioners did not challenge the order of framing charges against them by filing revisional application under Section 439 of the Code of Criminal Procedure but, they filed applications under Section 561A of the Code of Criminal Procedure to quash the entire proceeding. In such facts and circumstances we are unable to exercise the power under Section 561A of the Code of Criminal procedure to interrupt or divert the ordinary course of Criminal Procedure as laid down in the Code.

37. 36. In this particular case it is very pertinent to discuss about Section 24 of the Securities and Exchange Ordinance, 1969.

Section 24 of the securities and Exchange Ordinance 1969 is as under: (1) Whenever contravenes the provision of section 17 shall be punish with imprison-

581

ment a term which may be extended to 5 years or with fined which may extended to 5 lack taka with both.

(2) where the person guilty of an offence referred to sub-section (1) is a company or other body corporate, even Director, Manager or other Officer responsible for the conduct of its affairs shall, unless he proves that the offence was committed without his knowledge or that he exercised all diligent to prevent its commission be deemed to be guilty of the offence.

38. According to sub-section (2) of Section 24 of Securities Exchange Ordinance, 1969 the onus lies on the accused to prove that he is not guilty of the alleged offence. This provision of law is some extend different from ordinary Criminal Jurisprudence, that the prosecution has to prove its Case.

39. Having discussed as above, we find no merit in the Rules.

40. Accordingly, all the three Rules are discharged.

41. The order of stay passed at the time of issuance of the Rules are hereby recalled and vacated.

42. The learned Metropolitan Additional Sessions Judge, 3rd Court, Dhaka is directed to proceed with the trial in accordance with law.

43. Since it is an old case and considering the cry of a large number of victims of share market, the trial Court is also directed to conclude the trial as expeditiously as possible preferably within 6(six) months from the date of the receipt of this judgment.

Communicate the Judgment and order at once.

Ed.