Appellate Division :
(Civil)
Nazmun Ara Sultana J
Syed Mahmud
Hossain J
Md Imman Ali J
Shawkat Hossain (Md) and another …..
…………Appellants
vs
Golam Mohammad and another …….
…….. .. Respondents
Judgment
September 20th, 2014.
Evidence Act (I of 1872) Section 73
Where other evidence produced before court are sufficient to prove the genuineness of any disputed signature or document the court may not insist for expert’s opinion, but where the evidence adduced before court are not sufficient for proving a disputed signature or document the court should obtain expert’s opinion. … (13)
Code of Civil Procedure (V of 1908)
Order XLI, rule 23
Remand-The disputed signature of the defendant No.1 in the alleged bainapatra the exhibit-l should be examined and compared with some admitted signatures of the defendant No.1 by a hand writing expert and for this purpose the suit should be sent back on remand to the appellate court below. .. …. (14)
Tarak Chandra Majhi vs Atahar Ali reported in 8 BLC (AD) 67;
Moudud Ahmed, Senior Advocate instructed by SR Khoshnabish, Advocate-on-Record-For the Appellants.
Abdus Salam Khan, Senior Advocate instated by B Hossain, Advocate-on-Record-For Respondent No.1.
None Represented-Respondent No.2.
Judgment
Nazmun Ara Sultana J: This Civil Appeal, by leave, at the instance of the defendants, is against the judgment and order dated 7-8-2002 passed by the High Court Division in Civil Revision. No. 808 of 1998 making the Rule absolute upon setting-aside the judgment and decree dated 26-2-1998 passes by the learned Subordinate Judge, 1st Court, Dhaka in Title Appeal No. 374 of 1993 allowing the appeal and thereupon reversing the judgment and decree dated 25-5-1993 passed by the learned Senior Assistant Judge, 5th Additional Court, Dhaka in Title Suit No. 91 of 1992 decreeing the suit.
2. The respondent No.1, as plaintiff, instituted the above mentioned Title Suit No.91 of 1992 for specific performance of contract against the present appellants. The plaintiff’s case, in short, was that the defendant No. 1 being owner and in possession of the suit property as described in. schedule to the plaint, entered into a contract with the plaintiff on 20-11-1986 for sale of the same at a consideration of Taka 50,000 and on receipt Taka 45,000 out of that stipulated consideration as earnest money executed a bainapatra in favour of the plaintiff on the stipulations that he would execute and register the kabala deed in respect of the suit property in favour of the plaintiff within 120 days on receiving the balance consideration of Taka 5,000 from the plaintiff. That on 10-3-1987 the plaintiff requested the defendant No.1 to execute and register the sale deed as per bainapatra, but he did not do so. The plaintiff then sent a legal notice on 28-8-1987 to the defendant No.1 asking him to execute and register the kabala deed as per the contract but the defendant did not reply. The plaintiff then again sent another legal notice to the defendant on 22-11-1998 but the defendant did not respond to that legal notice also and thus the plaintiff has been compelled to file the suit.
3. The defendant Nos. 1 and 2 contested the suit by filling written statement denying the alleged bainanama. Their case is that the defendant No.1 purchased 0.0168 ajutangsa land from Shahana Bibi by a registered kabala dated 10-4-1984 and subsequently he transferred that land to his wife Rokeya Begum, the defendant No.2 in lieu of dower money by registered deed dated 11-8-1987. The defendant No.2 mutated her name in respect of the suit property. That the defendant No.1 never contracted to sell the suit property to the plaintiff, never took any earnest money from the plaintiff and never executed any bainapatra in favour of the plaintiff; that the alleged bainapatra is forged. The defendant No.1 in his written statement further contended that he worked as an employee under Railway Department since 1940 and retired in 1977 and during this period, he always signed his name in Bengali and that the so-called signatures in the alleged deed of agreement in English are not of the defendant No.1.
4. In the trial court the plaintiff examined 3 witnesses and produced some documents in order to prove his case. The contesting defendants examined only one witness the defendant No.1 himself. The trial court, on consideration of the evidence adduced by both the parties and other facts and circumstances decreed the suit. The trial court, after comparing the purported signature of the defendant No.1 in the alleged bainapatra with some alleged signatures of the defendant No.1 in exhibit-5 series which are some photocopies of applications to Titas Gas Company and House Building Finance Corporation Office (HBFC), found that the signature appearing in the alleged bainapatra was of the defendant No.1. The trial court opined also that the PW 2 an attesting witness of the alleged bainapatra, proved the execution of the said bainapatra by the defendant No.1.
5. Being aggrieved by the judgment and decree of the trial court the defendant No.1 preferred Civil Appeal No. 374 of 1993 which was heard by the learned Subordinate Judge, 1st Court, Dhaka. This appellate court allowed the appeal by setting aside the judgment and decree of the trial court and dismissed the suit for specific performance of contract making observations to the effect that the trial court committed serious error by comparing the disputed signature of the defendant No.1 in the alleged bainapatra with some unadmitted signatures appearing in some photocopies-the exhibit-5 series which were not admitted into evidence in accordance with Sections 65 and 66 of the Evidence Act. The appellate court found the evidence of PW 2 and PW 3 not satisfactory. The appellate court doubted the genuineness of the alleged bainapatra for the reasons also that the plaintiff could not clarify when and from where the stamp paper of the alleged bainapatra was purchased and that there was no explanation also as to why inspite of payment of almost full consideration money the possession of the land was not delivered.
6. Against the judgment of the appellate court below the plaintiff preferred the above mentioned civil revision before the High Court Division and obtained rule. Ultimately a Single Bench of the High Court Division, after hearing, made that rule absolute upon setting aside the judgment and decree of the appellate court below and restoring those of the trial court. The High Court Division observed that though the defendant No.1 denied the signatures on exhibit-5 series, but ultimately he found it difficult to renounce them. The High Court Division commented to the effect also that the defendant No.1 put his signature in his deposition sheet and in other admitted documents in English but inspite of that he resorted to falsehood by contending that he could not read or write in English with a view to disown his signature in english in the alleged bainapatra and that these were strong circumstantial evidence which tell against his defence case. The revisional court believed both the PW 2 and PW 3 also making comment that the reasons assigned by the appellate court below for not believing these two witnesses were not correct at all.
7. Leave to appeal was granted on the submissions of the learned Advocate for the defendant-leave petitioner to the effect that the exhibit-5 series, the photocopies of the applications filed to Titas Gas Company and House Building Finance Corporation Office collected by the plaintiff-respondent being inadmissible papers, the learned Assistant Judge committed an error of law in comparing the disputed signatures of the defendant No.1 in the impugned bainapatra-the exhibit-1 with the alleged signatures of the defendant No.1 appearing in this exhibit-5 series as per provision of Section 73 of the Evidence Act and that in this circumstance the execution of the alleged bainapatra by the defendant No.1 was not legally proved and that the High Court Division having not considered this aspect committed error of law resulting in error in the decision occasioning failure of justice and that the High Court Division sitting in revisional jurisdiction committed an error of law in construing a portion of the deposition of the PW 2 to nullify the finding of the final court of fact (in respect of same portion) which held the same to be contradictory and such error has affected the decision in that, if the evidence of the sole attesting witness (PW 2) is contradictory, there remained nothing to grant decree to the plaintiff-respondent and in such view of the matter, the findings and decisions of the High Court Division cannot be sustained in law.
8. Mr Moudud Ahmed, the learned Senior Advocate for the defendant-appellants have made submissions to the effect that in this suit for specific performance of contract where the alleged contract (the bainapatra) has been denied by the contesting defendant No.1 and has also been termed as a forged one and a fraudulent creation of the plaintiff, the court, before passing a decree, ought to have been satisfied by cogent evidence that the defendant No.1 executed this bainapatra and the signatures appearing in this bainapatra is actually of the defendant No.1. The learned Advocate has argued that in this suit there is no cogent evidence at all to prove that the purported signature of the defendant No.1 appearing in the alleged bainapatra is actually of the defendant No.1. The learned Advocate has submitted that though Section 73 of the Evidence Act has empowered the court to compare any disputed signature with any signature admitted or proved to have been of the person who allegedly put the disputed signature, but in the present suit there is no admitted signature of the defendant No.1, that the exhibit-5 series which purportedly bear signatures of the defendant No.1 were photocopies only and as such secondary evidence as per section 63 of the Evidence Act and these were not admitted in evidence as per sections 65 and 66 of the Evidence Act and, as such, the comparison of these signatures with the disputed signature of the defendant No.1 appearing in the alleged bainapatra by the trial court as per section 73 of the Evidence Act has been illegal; that the High Court Division has totally ignored this legal aspect and affirmed the judgment of the trial court without taking into consideration of the inadequacy of legal evidence to prove the execution of the alleged bainapatra by the defendant No.1. Mr Moudud Ahmed has argued also that though one of the attesting witnesses only has deposed in this suit to prove the execution of the alleged bainapata by the defendant No.1, the other witness, the PW 3, being not the attesting witness or the scribe of the alleged bainapatra the sole evidence of one of the attesting witnesses only the PW 2 cannot be considered sufficient at all to prove the execution “of the alleged bainapatra by the defendant No.1. The learned Counsel has argued also that in this suit there were so many admitted signatures of the defendant No.1, even in his deposition sheet also the defendant respondent No.1 put his signature in English, but neither the plaintiff nor the trial court took any initiative to have these admitted signatures examined and compared with the disputed signature of the defendant No.1 in the disputed bainapatra by any hand writing expert; that the trial court even did not compare these admitted signatures of the defendant No.1 with his disputed signature in the impugned bainapatra under section 73 of the Evidence Act. The learned Counsel has argued that the High Court Division did not take into consideration all these facts and circumstances at all in affirming the judgment and decree of the trial court. The learned Counsel has made submission to the effect also that though section 73 of the Evidence Act permits the court to compare the contentious signature with the admitted signature, the safe and best course for the court is to get the disputed signature examined and compared with the admitted signature by hand writing expert. In support of this submission the learned Counsel has referred to a decision of this Division in the case of Tarak Chandra Majhi vs Atahar Ali reported in 8 BLC (AD) 67.
9. Mr Abdus Salam Khan, the learned Senior Advocate for the plaintiff-respondent No.1 has made submissions to the effect that in this suit the plaintiffs has examined two witnesses including one attesting witness of the alleged bainapatra and both these witnesses the PW 2 and PW 3 have deposed before the trial court stating that the defendant No.1 executed the impugned bainapatra in their presence. The learned Advocate has argued that their is no reason to disbelieve these two plaintiffs’ witnesses and that in the circumstances the trial court did not commit any wrong in finding that the impugned bainapatra was executed by the defendant No.1. The learned Advocate has argued also that though the defendant. No.1 in his written statement has asserted that he always put his signatures in Bengali and he cannot read and write English but during trial it has been proved that the defendant No.1 puts signature in English also and even in the court, in his deposition sheet also, he put his signature in English. The learned Advocate has contended that this conduct of the defendant No.1 very reasonably and strongly supports the falsity of the defence case. The learned Advocate for the plaintiff-respondents has made submissions to the effect also that the court is competent to compare the disputed signature with admitted signature for ascertaining genuineness of the disputed signature and that in this suit the trial court did not commit any wrong in comparing the signature of the defendant No.1 appearing in the alleged bainapatra with the signatures of the defendant No.1 in exhibit-5 series which were admitted in evidence by the trial court without any objection from the defendants.
10. We have considered the submissions of the learned Advocates of both the sides and gone through the impugned judgment and order of the High Court Division and those of the appellate court below and the trial court.
11. In this suit for specific performance of contract the only issue to be resolved is whether the defendant No.1 executed the alleged bainapatra the exhibit-1 or in other words whether the signature appearing in the bainapatra the exhibit-l is of the defendant No.1. For proving execution of any document the vital witnesses are the attesting witnesses who witnessed the execution of the document by the executant and the scribe of the document. In this suit the plaintiff could not examine the scribe of the disputed bainapatra the exhibit-1. The plaintiff could examine only one of the attesting witnesses of this disputed bainapatra. The plaintiff though examined another witness also the PW 3 who also deposed to the effect that the defendant No.1 executed this bainapatra in his presence, but there is no satisfactory explanation from the side of the plaintiff as to why he examined this PW 3 instead of the other attesting witnesses of this bainapatra. It appears that the trial court took recourse of section 73 of the Evidence Act to be sure as to whether this bainapatra was executed by the defendant No.1. The trial court examined and compared the disputed signature of the defendant No.1 appearing in the alleged bainapatra with some alleged signatures of the defendant No.1 appearing in exhibit-5 series. These exhibit-S series are photocopies of some applications filed to the Titas. Gas Company and House Building Finance Corporation Office. These are secondary evidence which require some procedures to be admitted in evidence. It appears that without following these procedures as prescribed in sections 65 and 66 of the Evidence Act the trial court took these photocopies into evidence and marked these as exhibit inspite of the fact that the defendant No.1 did not admit these signatures to be his own. The defendant No.1, while deposing before court, clearly stated that the signatures appearing in the exhibits series are not his signatures. In course of cross-examination the defendant No.1 stated thus:
“Whether one tenant at that time took my signature to get gas connection-1 could not remember”.
12. It appears that the High Court Division, putting importance on this very statement of DW 1 made observation to the effect that the defendant No.1 ultimately found it difficult to renounce these signatures. But we are unable to accept these observations of the High Court Division. The above statement of the defendant No.1 does not prove all that he has admitted that the exhibit-5 series were submitted by him and the signatures appearing in these applications are his signatures. So, in these circumstances we approve the findings of the appellate court below that the learned trial judge has committed serious error in comparing the disputed signature of the defendant No.1 in the alleged, bainapatra with the signatures appearing in exhibit-5 series which were not taken into evidence in accordance with law and which are also not at – all admitted by the defendant No.1.
13. It is true that the plaintiff has examined one of the attesting witnesses of the alleged bainapatra who has deposed to the effect that the defendant No.1 executed this bainapatra in his presence. Another witness the PW 3, who is neither the scribe nor attesting witness of the alleged bainapatra, also has deposed to the effect that the defendant No.1 executed this bainapatra in his presence. But in the present facts and circumstances of the case where the plaintiff could not examine the scribe and also the other attesting witnesses of the disputed bainapatra and where there is scope to obtain expert’s opinion as to genuineness of the disputed signature of the defendant No.1 in the alleged bainapatra we do not think that the evidence of PW 2 and PW 3 are sufficient lo prove the execution of the alleged bainapatra the exhibit-1 by the defendant No.1. Where other evidence produced before court are sufficient to prove the genuineness of any disputed signature or document the court may not insist for expert’s opinion, but where the evidence adduced before court are not sufficient for proving a disputed signature or document the court should obtain expert’s opinion. It appears that in this suit there are some admitted signatures of the defendant No.1 in some admitted documents. In the circumstances the best and safe course for the court was to send the impugned bainapatra and some admitted signatures of the defendant No.1 to a hand writing expert and to obtain his portion as to the genuineness of the disputed signature of the defendant No.1 in the bainapatra the exhibit-1. In this connection we should refer the decision of this Division in the case of Tarak Chandra Majhi vs Atahar Ali reported in 8 BLC (AD) 67. This Division held in that case “in case of contentious writing, signature, etc., though provision of section 73 of the Evidence Act permits the court to compare the contentious signature with the admitted signature, the safe and best course for the court would be to avoid the practice of comparing the writing or signature etc. and should nor stake its judgment on the opinion formed or view taken upon resorting to risky or, in other words, unsatisfactory and dangerous procedure and the desired course should be to go for microscopic enlargement and expert advice since the science of examination of signature, writing, etc. for determination of similarity has advanced enough and it has reached to the stage of accuracy and certainty as well as expertise skill is also available.”
14. Considering the facts and circumstances of this case we are of the opinion that the disputed signature of the defendant No.1 in the alleged bainapatra the exhibit-1 should be examined and compared with some admitted signatures of the defendant No.1 by a hand writing expert and for this purpose the suit should be sent back on remand to the appellate court below.
15. In the circumstances this appeal be allowed in contest without any order as to cost. The impugned judgment and order of the High Court Division and also that of the appellate court below are set-aside. The Title Appeal No.374 of 1993 is sent back to the appellate court below. The appellate court will, send the alleged bainapatra along with some admitted signatures of the defendant No.1 to a hand writing expert for his opinion as to the genuineness of the disputed signatures of the defendant No.1 in the alleged bainapatra the exhibit-1 and after receiving the hand writing expert’s opinion the appellate court below will dispose of the appeal afresh in accordance with law.
Send copy of this judgment to the appellate court below along with the lower court record, if not already sent back.
(Civil)
Nazmun Ara Sultana J
Syed Mahmud
Hossain J
Md Imman Ali J
Shawkat Hossain (Md) and another …..
…………Appellants
vs
Golam Mohammad and another …….
…….. .. Respondents
Judgment
September 20th, 2014.
Evidence Act (I of 1872) Section 73
Where other evidence produced before court are sufficient to prove the genuineness of any disputed signature or document the court may not insist for expert’s opinion, but where the evidence adduced before court are not sufficient for proving a disputed signature or document the court should obtain expert’s opinion. … (13)
Code of Civil Procedure (V of 1908)
Order XLI, rule 23
Remand-The disputed signature of the defendant No.1 in the alleged bainapatra the exhibit-l should be examined and compared with some admitted signatures of the defendant No.1 by a hand writing expert and for this purpose the suit should be sent back on remand to the appellate court below. .. …. (14)
Tarak Chandra Majhi vs Atahar Ali reported in 8 BLC (AD) 67;
Moudud Ahmed, Senior Advocate instructed by SR Khoshnabish, Advocate-on-Record-For the Appellants.
Abdus Salam Khan, Senior Advocate instated by B Hossain, Advocate-on-Record-For Respondent No.1.
None Represented-Respondent No.2.
Judgment
Nazmun Ara Sultana J: This Civil Appeal, by leave, at the instance of the defendants, is against the judgment and order dated 7-8-2002 passed by the High Court Division in Civil Revision. No. 808 of 1998 making the Rule absolute upon setting-aside the judgment and decree dated 26-2-1998 passes by the learned Subordinate Judge, 1st Court, Dhaka in Title Appeal No. 374 of 1993 allowing the appeal and thereupon reversing the judgment and decree dated 25-5-1993 passed by the learned Senior Assistant Judge, 5th Additional Court, Dhaka in Title Suit No. 91 of 1992 decreeing the suit.
2. The respondent No.1, as plaintiff, instituted the above mentioned Title Suit No.91 of 1992 for specific performance of contract against the present appellants. The plaintiff’s case, in short, was that the defendant No. 1 being owner and in possession of the suit property as described in. schedule to the plaint, entered into a contract with the plaintiff on 20-11-1986 for sale of the same at a consideration of Taka 50,000 and on receipt Taka 45,000 out of that stipulated consideration as earnest money executed a bainapatra in favour of the plaintiff on the stipulations that he would execute and register the kabala deed in respect of the suit property in favour of the plaintiff within 120 days on receiving the balance consideration of Taka 5,000 from the plaintiff. That on 10-3-1987 the plaintiff requested the defendant No.1 to execute and register the sale deed as per bainapatra, but he did not do so. The plaintiff then sent a legal notice on 28-8-1987 to the defendant No.1 asking him to execute and register the kabala deed as per the contract but the defendant did not reply. The plaintiff then again sent another legal notice to the defendant on 22-11-1998 but the defendant did not respond to that legal notice also and thus the plaintiff has been compelled to file the suit.
3. The defendant Nos. 1 and 2 contested the suit by filling written statement denying the alleged bainanama. Their case is that the defendant No.1 purchased 0.0168 ajutangsa land from Shahana Bibi by a registered kabala dated 10-4-1984 and subsequently he transferred that land to his wife Rokeya Begum, the defendant No.2 in lieu of dower money by registered deed dated 11-8-1987. The defendant No.2 mutated her name in respect of the suit property. That the defendant No.1 never contracted to sell the suit property to the plaintiff, never took any earnest money from the plaintiff and never executed any bainapatra in favour of the plaintiff; that the alleged bainapatra is forged. The defendant No.1 in his written statement further contended that he worked as an employee under Railway Department since 1940 and retired in 1977 and during this period, he always signed his name in Bengali and that the so-called signatures in the alleged deed of agreement in English are not of the defendant No.1.
4. In the trial court the plaintiff examined 3 witnesses and produced some documents in order to prove his case. The contesting defendants examined only one witness the defendant No.1 himself. The trial court, on consideration of the evidence adduced by both the parties and other facts and circumstances decreed the suit. The trial court, after comparing the purported signature of the defendant No.1 in the alleged bainapatra with some alleged signatures of the defendant No.1 in exhibit-5 series which are some photocopies of applications to Titas Gas Company and House Building Finance Corporation Office (HBFC), found that the signature appearing in the alleged bainapatra was of the defendant No.1. The trial court opined also that the PW 2 an attesting witness of the alleged bainapatra, proved the execution of the said bainapatra by the defendant No.1.
5. Being aggrieved by the judgment and decree of the trial court the defendant No.1 preferred Civil Appeal No. 374 of 1993 which was heard by the learned Subordinate Judge, 1st Court, Dhaka. This appellate court allowed the appeal by setting aside the judgment and decree of the trial court and dismissed the suit for specific performance of contract making observations to the effect that the trial court committed serious error by comparing the disputed signature of the defendant No.1 in the alleged bainapatra with some unadmitted signatures appearing in some photocopies-the exhibit-5 series which were not admitted into evidence in accordance with Sections 65 and 66 of the Evidence Act. The appellate court found the evidence of PW 2 and PW 3 not satisfactory. The appellate court doubted the genuineness of the alleged bainapatra for the reasons also that the plaintiff could not clarify when and from where the stamp paper of the alleged bainapatra was purchased and that there was no explanation also as to why inspite of payment of almost full consideration money the possession of the land was not delivered.
6. Against the judgment of the appellate court below the plaintiff preferred the above mentioned civil revision before the High Court Division and obtained rule. Ultimately a Single Bench of the High Court Division, after hearing, made that rule absolute upon setting aside the judgment and decree of the appellate court below and restoring those of the trial court. The High Court Division observed that though the defendant No.1 denied the signatures on exhibit-5 series, but ultimately he found it difficult to renounce them. The High Court Division commented to the effect also that the defendant No.1 put his signature in his deposition sheet and in other admitted documents in English but inspite of that he resorted to falsehood by contending that he could not read or write in English with a view to disown his signature in english in the alleged bainapatra and that these were strong circumstantial evidence which tell against his defence case. The revisional court believed both the PW 2 and PW 3 also making comment that the reasons assigned by the appellate court below for not believing these two witnesses were not correct at all.
7. Leave to appeal was granted on the submissions of the learned Advocate for the defendant-leave petitioner to the effect that the exhibit-5 series, the photocopies of the applications filed to Titas Gas Company and House Building Finance Corporation Office collected by the plaintiff-respondent being inadmissible papers, the learned Assistant Judge committed an error of law in comparing the disputed signatures of the defendant No.1 in the impugned bainapatra-the exhibit-1 with the alleged signatures of the defendant No.1 appearing in this exhibit-5 series as per provision of Section 73 of the Evidence Act and that in this circumstance the execution of the alleged bainapatra by the defendant No.1 was not legally proved and that the High Court Division having not considered this aspect committed error of law resulting in error in the decision occasioning failure of justice and that the High Court Division sitting in revisional jurisdiction committed an error of law in construing a portion of the deposition of the PW 2 to nullify the finding of the final court of fact (in respect of same portion) which held the same to be contradictory and such error has affected the decision in that, if the evidence of the sole attesting witness (PW 2) is contradictory, there remained nothing to grant decree to the plaintiff-respondent and in such view of the matter, the findings and decisions of the High Court Division cannot be sustained in law.
8. Mr Moudud Ahmed, the learned Senior Advocate for the defendant-appellants have made submissions to the effect that in this suit for specific performance of contract where the alleged contract (the bainapatra) has been denied by the contesting defendant No.1 and has also been termed as a forged one and a fraudulent creation of the plaintiff, the court, before passing a decree, ought to have been satisfied by cogent evidence that the defendant No.1 executed this bainapatra and the signatures appearing in this bainapatra is actually of the defendant No.1. The learned Advocate has argued that in this suit there is no cogent evidence at all to prove that the purported signature of the defendant No.1 appearing in the alleged bainapatra is actually of the defendant No.1. The learned Advocate has submitted that though Section 73 of the Evidence Act has empowered the court to compare any disputed signature with any signature admitted or proved to have been of the person who allegedly put the disputed signature, but in the present suit there is no admitted signature of the defendant No.1, that the exhibit-5 series which purportedly bear signatures of the defendant No.1 were photocopies only and as such secondary evidence as per section 63 of the Evidence Act and these were not admitted in evidence as per sections 65 and 66 of the Evidence Act and, as such, the comparison of these signatures with the disputed signature of the defendant No.1 appearing in the alleged bainapatra by the trial court as per section 73 of the Evidence Act has been illegal; that the High Court Division has totally ignored this legal aspect and affirmed the judgment of the trial court without taking into consideration of the inadequacy of legal evidence to prove the execution of the alleged bainapatra by the defendant No.1. Mr Moudud Ahmed has argued also that though one of the attesting witnesses only has deposed in this suit to prove the execution of the alleged bainapata by the defendant No.1, the other witness, the PW 3, being not the attesting witness or the scribe of the alleged bainapatra the sole evidence of one of the attesting witnesses only the PW 2 cannot be considered sufficient at all to prove the execution “of the alleged bainapatra by the defendant No.1. The learned Counsel has argued also that in this suit there were so many admitted signatures of the defendant No.1, even in his deposition sheet also the defendant respondent No.1 put his signature in English, but neither the plaintiff nor the trial court took any initiative to have these admitted signatures examined and compared with the disputed signature of the defendant No.1 in the disputed bainapatra by any hand writing expert; that the trial court even did not compare these admitted signatures of the defendant No.1 with his disputed signature in the impugned bainapatra under section 73 of the Evidence Act. The learned Counsel has argued that the High Court Division did not take into consideration all these facts and circumstances at all in affirming the judgment and decree of the trial court. The learned Counsel has made submission to the effect also that though section 73 of the Evidence Act permits the court to compare the contentious signature with the admitted signature, the safe and best course for the court is to get the disputed signature examined and compared with the admitted signature by hand writing expert. In support of this submission the learned Counsel has referred to a decision of this Division in the case of Tarak Chandra Majhi vs Atahar Ali reported in 8 BLC (AD) 67.
9. Mr Abdus Salam Khan, the learned Senior Advocate for the plaintiff-respondent No.1 has made submissions to the effect that in this suit the plaintiffs has examined two witnesses including one attesting witness of the alleged bainapatra and both these witnesses the PW 2 and PW 3 have deposed before the trial court stating that the defendant No.1 executed the impugned bainapatra in their presence. The learned Advocate has argued that their is no reason to disbelieve these two plaintiffs’ witnesses and that in the circumstances the trial court did not commit any wrong in finding that the impugned bainapatra was executed by the defendant No.1. The learned Advocate has argued also that though the defendant. No.1 in his written statement has asserted that he always put his signatures in Bengali and he cannot read and write English but during trial it has been proved that the defendant No.1 puts signature in English also and even in the court, in his deposition sheet also, he put his signature in English. The learned Advocate has contended that this conduct of the defendant No.1 very reasonably and strongly supports the falsity of the defence case. The learned Advocate for the plaintiff-respondents has made submissions to the effect also that the court is competent to compare the disputed signature with admitted signature for ascertaining genuineness of the disputed signature and that in this suit the trial court did not commit any wrong in comparing the signature of the defendant No.1 appearing in the alleged bainapatra with the signatures of the defendant No.1 in exhibit-5 series which were admitted in evidence by the trial court without any objection from the defendants.
10. We have considered the submissions of the learned Advocates of both the sides and gone through the impugned judgment and order of the High Court Division and those of the appellate court below and the trial court.
11. In this suit for specific performance of contract the only issue to be resolved is whether the defendant No.1 executed the alleged bainapatra the exhibit-1 or in other words whether the signature appearing in the bainapatra the exhibit-l is of the defendant No.1. For proving execution of any document the vital witnesses are the attesting witnesses who witnessed the execution of the document by the executant and the scribe of the document. In this suit the plaintiff could not examine the scribe of the disputed bainapatra the exhibit-1. The plaintiff could examine only one of the attesting witnesses of this disputed bainapatra. The plaintiff though examined another witness also the PW 3 who also deposed to the effect that the defendant No.1 executed this bainapatra in his presence, but there is no satisfactory explanation from the side of the plaintiff as to why he examined this PW 3 instead of the other attesting witnesses of this bainapatra. It appears that the trial court took recourse of section 73 of the Evidence Act to be sure as to whether this bainapatra was executed by the defendant No.1. The trial court examined and compared the disputed signature of the defendant No.1 appearing in the alleged bainapatra with some alleged signatures of the defendant No.1 appearing in exhibit-5 series. These exhibit-S series are photocopies of some applications filed to the Titas. Gas Company and House Building Finance Corporation Office. These are secondary evidence which require some procedures to be admitted in evidence. It appears that without following these procedures as prescribed in sections 65 and 66 of the Evidence Act the trial court took these photocopies into evidence and marked these as exhibit inspite of the fact that the defendant No.1 did not admit these signatures to be his own. The defendant No.1, while deposing before court, clearly stated that the signatures appearing in the exhibits series are not his signatures. In course of cross-examination the defendant No.1 stated thus:
“Whether one tenant at that time took my signature to get gas connection-1 could not remember”.
12. It appears that the High Court Division, putting importance on this very statement of DW 1 made observation to the effect that the defendant No.1 ultimately found it difficult to renounce these signatures. But we are unable to accept these observations of the High Court Division. The above statement of the defendant No.1 does not prove all that he has admitted that the exhibit-5 series were submitted by him and the signatures appearing in these applications are his signatures. So, in these circumstances we approve the findings of the appellate court below that the learned trial judge has committed serious error in comparing the disputed signature of the defendant No.1 in the alleged, bainapatra with the signatures appearing in exhibit-5 series which were not taken into evidence in accordance with law and which are also not at – all admitted by the defendant No.1.
13. It is true that the plaintiff has examined one of the attesting witnesses of the alleged bainapatra who has deposed to the effect that the defendant No.1 executed this bainapatra in his presence. Another witness the PW 3, who is neither the scribe nor attesting witness of the alleged bainapatra, also has deposed to the effect that the defendant No.1 executed this bainapatra in his presence. But in the present facts and circumstances of the case where the plaintiff could not examine the scribe and also the other attesting witnesses of the disputed bainapatra and where there is scope to obtain expert’s opinion as to genuineness of the disputed signature of the defendant No.1 in the alleged bainapatra we do not think that the evidence of PW 2 and PW 3 are sufficient lo prove the execution of the alleged bainapatra the exhibit-1 by the defendant No.1. Where other evidence produced before court are sufficient to prove the genuineness of any disputed signature or document the court may not insist for expert’s opinion, but where the evidence adduced before court are not sufficient for proving a disputed signature or document the court should obtain expert’s opinion. It appears that in this suit there are some admitted signatures of the defendant No.1 in some admitted documents. In the circumstances the best and safe course for the court was to send the impugned bainapatra and some admitted signatures of the defendant No.1 to a hand writing expert and to obtain his portion as to the genuineness of the disputed signature of the defendant No.1 in the bainapatra the exhibit-1. In this connection we should refer the decision of this Division in the case of Tarak Chandra Majhi vs Atahar Ali reported in 8 BLC (AD) 67. This Division held in that case “in case of contentious writing, signature, etc., though provision of section 73 of the Evidence Act permits the court to compare the contentious signature with the admitted signature, the safe and best course for the court would be to avoid the practice of comparing the writing or signature etc. and should nor stake its judgment on the opinion formed or view taken upon resorting to risky or, in other words, unsatisfactory and dangerous procedure and the desired course should be to go for microscopic enlargement and expert advice since the science of examination of signature, writing, etc. for determination of similarity has advanced enough and it has reached to the stage of accuracy and certainty as well as expertise skill is also available.”
14. Considering the facts and circumstances of this case we are of the opinion that the disputed signature of the defendant No.1 in the alleged bainapatra the exhibit-1 should be examined and compared with some admitted signatures of the defendant No.1 by a hand writing expert and for this purpose the suit should be sent back on remand to the appellate court below.
15. In the circumstances this appeal be allowed in contest without any order as to cost. The impugned judgment and order of the High Court Division and also that of the appellate court below are set-aside. The Title Appeal No.374 of 1993 is sent back to the appellate court below. The appellate court will, send the alleged bainapatra along with some admitted signatures of the defendant No.1 to a hand writing expert for his opinion as to the genuineness of the disputed signatures of the defendant No.1 in the alleged bainapatra the exhibit-1 and after receiving the hand writing expert’s opinion the appellate court below will dispose of the appeal afresh in accordance with law.
Send copy of this judgment to the appellate court below along with the lower court record, if not already sent back.
