Tuesday, May 21, 2019 | ePaper

Merits on which Specific Performance Contract depends

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High Court Division :
(Civil Revisional Jurisdiction)
Md Rais Uddin J  
Abdul Aziz ......... Petitioner
Vs
Md Jalal Uddin……… Opposite-Party

   Judgment    
October 8th, 2018        
Specific Performance of Contract
 In the suit for Specific Performance of Contract the plaintiff is required to prove the existence of lawful contract and due execution of agreement and payment of consideration …………… (19)
Md Fazlul Haque vs BM Rahman @ Mahbubur Rahman, 1 MLR (AD) 418 ref.
Alauddin, Advocate-For the Petitioner.
Mirazul Hossain Khan, Advocate-For the Opposite-Party.

Judgment
This Rule was issued calling upon the opposite party to show cause as to why the judgment and decree dated 19-2-2012 (decree signed on 22-2-2012) passed by the learned Joint District Judge, 1st Court, Manikgonj, in Title Appeal No. 73 of 2010 dismissing the appeal and thereby upholding the judgment and decree dated 3-3-2010 (decree signed on 7-3-2010) passed by the learned Assistant Judge, Daulatpur, Manikganj in Title Suit No. 51 of 2007 decreeing the suit, should not be set-aside.
2. The relevant fact giving rise to this Rule, in short, is that the opposite-party as plaintiff instituted a suit for Specific Performance of Contract alleging inter alia, in short is that the defendant being the owner of the scheduled property made a offer to sell the suit property for a consideration of Taka 1,68,000 only which was accepted by the plaintiff-respondent opposite-party and accordingly a contract in question was executed on 5-5-2004 in non-judicial stamp of Taka 150 receiving of Taka 1,65,000 only out of total consideration of Taka 1,68,000 with a condition that he would execute and register the necessary sale deed within one year on receiving the remaining consideration of Taka 3,000 only. Subsequently the defendant-appellant-petitioner with ill motive filed a case under Section 98 of the Code of Criminal Procedure which was dismissed and defendant-appellant-petitioner also filed a suit for injunction refusing the said contract. Hence, the plaintiff was compelled to file the instant suit for Specific Performance of Contract.
3. The defendant contested the suit by filing written statements denying the material allegations made in the plaint contending, inter-alia  that the suit is not maintainable, barred by waiver, acquiescence and limitation and he never received any money for the said contract, rather the plaintiff-respondent-opposite-party surreptitiously and stealthily took this signature of the defendant-appellant-petitioner, while on 18-5-2003 he was executing and, registering another sale deed in favour of his full brother Anis and subsequently converted the same as Bainapatra for sale of the schedule was property, since the plaintiff-respondent-opposite-party was a scribe of that sale deed on 18-5-2003. The defendant-appellant-petitioner being aware about the false and fake contract filed a criminal case under Section 98 of the Code of Criminal Procedure in the Court of Magistrate, 1st Class, Manikgonj against the plaintiff-respondent-opposite-party and the defendant-appellant-petitioner also filed another suit for permanent injunction against the said plaintiff-respondent-party which was subsequently dismissed and under the above circumstances, the defendant-appellant-petitioner prayed for dismissal of the suit.
4. At the trial, the plaintiff examined 4 (four) witnesses and exhibited their documents which were marked as exhibits 1 and 2. The defendant examined 3(three) witnesses and exhibited their documents which were marked as exhibits Ka-Ga in support of their respective cases.
5. On conclusion of trial, the learned Judge of the trial court after hearing the parties, considering the evidence and materials on record decreed the suit by his judgment and decree dated 3-2-2010.     .
6. Being aggrieved by and dissatisfied with the aforesaid judgment and decree the defendant as petitioner preferred appeal before the learned District Judge, Manikganj which was heard and disposed of by the learned Joint District Judge, 1st Court, Manikganj who after hearing the parties, considering the evidence and materials on record dismissed the appeal and affirmed the judgment and decree of the trial court by his judgment and decree dated 19-2-2012.
7. Feeling aggrieved by and dissatisfied with the aforesaid judgment and decree the defendant as petitioner approached this court and obtained the instant Rule.
8. Mr Alauddin, the learned Advocate appearing for the petitioner has placed the revisional application, pleadings, evidence, exhibits, judgment and decree of the courts below and submits that the plaintiff failed to prove the case against the defendant and the learned Judge of the courts below without considering the evidence and material on record decreed the suit in favour of the plaintiff. He submits that the court is expert of all experts. He lastly submits that the fraud vitiated every thing, finding since the plaintiff by practicing fraud obtained the thump impression of the defendant as such he prayed for making the rule absolute and setting aside the judgment of the courts below. In support of his contention he has referred the decision reported in: (1) 13 MLR (AD) 345 = 61 DLR (AD) 15.
9. Mr Mirazul Hossain Khan, the learned Advocate appearing for the plaintiff-opposite-party has supported the judgment and decree passed by the courts below and submits that the plaintiff has proved the  Bainapatra as genuine by examining independent and neutral witnesses and, as such, both the courts below concurrently found the genuineness  of the Bainapatra and decreed the suit against the defendant.  He submits that there is no illegality committed by the courts below and there is no misreading and non-consideration of the evidence as such this court in revisional jurisdiction cannot interfere the concurrent, findings of the courts below and, as such, he prayed for discharging the rule.
10. In order to appreciate the submissions made by the learned Advocates for the parties, I have gone through the revisional application pleadings, evidence, exhibits and the judgment and decree of the courts below very carefully.
11. Now the question calls for consideration whether the learned Judge of the court of appeal below has committed any error of law resulting in an error in the decision occasioning failure of justice in passing the impugned judgment and decree.
12. On perusal of the record it appears that the opposite-party as plaintiff brought a suit for Specific, Performance of Contract alleging that the defendant entered into an agreement with the plaintiff to sale the suit property at consideration of Taka 1,68,000 (One lac sixty eight thousand). The plaintiff and the defendant executed a contract on 5-5-2004 in non-judicial stamp of Taka 150 upon receiving Taka 1,65,000 (One lac sixty five thousand) out of total consideration of Taka 1,68,000 (One lac sixty eight thousand).
13. On perusal of the records it appears that the plaintiff was examined as PW 1 who has categorically stated as to consideration of Taka 1,68,000 (One lac sixty eight thousand) out of which he paid Taka 1,65,000 (one lac sixty five thousand) on 5-5-2004 and entered into an agreement and handed over the possession with a condition that the balance of Taka 3,000 would be paid within l (one) year and the defendant would execute the sale deed. The plaintiff further stated that he offered the balance amount of consideration and requested, to execute the sale deed but the defendant did not execute the same. Thereafter the defendant filed a criminal case under Section 98 of the Code of Criminal Procedure on 20-6-2004 and also filed a case for permanent injunction which were dismissed.
14. PW 2 Jabbar neighbor of plaintiff and the defendant who is a witness of deed of agreement stated that  “ জমি মোট ৪৪ ডিসিমল । ১ এক লক্ষ ৬৮,০০০ হাজার টাকায় বেচা কেনা হয় । বাদী দেয় ১ লক্ষ ৬৫,০০০ টাকা । আমি ছিলাম।  আমার সামনে বায়নাপত্র লেখা হইছে । বায়নাপত্রে আমি সই করেছি।”
15. PW 3 Anisur Rahman is also a witness of the agreement.
16. PW 4 Md Sabed Ali is a deed writer. He has written the Bainapatra.
17. It is cardinal principle of law that the plaintiff has to prove his case independently of the weakness or defects of defendant's case. Even if a foreign judgment is admissible in evidence, it does not improve the plaintiff's case.
18. In the instant case it appears that the plaintiff has successfully proved his case as to Bainapatra and consideration and payment of consideration by examining the evidence.
19. In the suit for Specific Performance of Contract the plaintiff is required to prove the existence of lawful contract and due execution of agreement and payment of consideration. In the instant case the plaintiff has also proved the contract and execution of agreement and payment of consideration by examining the independent and neutral witnesses.
20. On perusal of the judgment of the courts below it appears that the learned Judge of the courts below considered the evidence and other materials on record concurrently found that the plaintiff has proved the genuineness of Bainapatra, consideration and due execution of agreement and therefore this court cannot interfere with the concurrent finding of facts in revisional jurisdiction.
21. This view finds support in the case of Md Fazlul Haque vs BM Rahman @ Mahbubur Rahman, reported in 1 MLR (AD) 418, where their lordships held that, "the question as to whether a Bainapatra is genuine or not, is a finding of fact which can be decided by proper and appropriate evidence and such a finding of a fact cannot be interfered with by the court in revisional jurisdiction."
22. On consideration of records it appears to me that findings arrived at by the court of appeal below having been rested upon considerations and discussions of the evidence and the materials on record and also on a correct and proper analysis of the legal aspect involved in the case. Moreover, impugned judgment and decree of the appellate court below in it's entirety are well founded in the facts and circumstances of the case and law. Therefore, grounds urged and contentions advanced by the learned Advocate for the petitioner are not correct exposition of law. However, I have gone through the decisions cited by the learned Advocate for the petitioner reported in 13 MLR (AD) 345 = 61 DLR (AD) 15 are quite distinguishable to that of the instant case and therefore, to that effect I am also unable to accept his submissions. On the contrary the legal pleas taken by the learned Advocate for opposite party prevail and appear to have a good deal of force.
23. In view of the discussions, decisions and reasons stated above, I am of the view that impugned judgment and decree of the court of appeal below suffers from no legal infirmity which calls for no interference by this court in revision. Thus, I find no merit in the Rule.
24. In the result, the Rule is discharged. However, there will be no order as to costs. The judgment and decree dated 19-2-2012 (decree signed on 22-2-2012) passed by the learned Joint District Judge, 1st Court, Manikgonj, in Title Appeal No. 73 of 2010 dismissed the appeal are hereby affirmed.
25. The order of stay granted earlier by this Court stands vacated.
Let the Lower Court Records along with a copy of the judgment be sent to the court concerned at once.

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