Evidence (Civil) | Case Reference

Admissibility of Evidence

Admissibility of Evidence in the stage of appeal

15 MLR(AD)421: Kamaluddin Ahmed Sarwar alias Alhaj Kamaluddin Sarwar being dead his heirs Hasina Banu & others Vs. Mohammad Shahjahan & another: Order 41 Rule 27 of the Code of Civil Procedure: In this case the Additional District Judge admitted the deed of contract the vital document which could not be produced before the trial Court through inadvertence (অসাবধানতা). The appellate Court examined the execution and attesting witnesses and thereafter being satisfied admitted the same into evidence and decreed the suit. The High Court Division upheld the said judgment. The apex Court found nothing wrong therewith and dismissed the leave petition. (Para-7, Mr. Justice Surendra Kumar Sinha).

Non Reading of Evidence

Code of Civil Procedure (v of 1908)

Section 115(1) 

Revisional Court cannot interfere in concurrent finding of facts, when there is no misreading and non-consideration of the material evidence on records. The Court of revision when acts beyond its jurisdiction in setting aside the concurrent findings of fact, this Division obviously interfere in the judgment of the High Court Division to secure the ends of justice. [73 DLR (AD) 360]

Non Reading of Evidence

The High Court Division while reversed the judgments did not even discuss the case on the basis of evidence on record nor opined that the plaintiffs of the suit for specific performance of contract was able to satisfy that the execution of bainapatra and deed were proved, consideration was passed and transaction was found genuine, even if, reversed the concurrent findings of fact which calls for interference by this Division. [73 DLR (AD) 361]

Specific Relief Act (1 of 1877)

Section 22

In a suit for specific performance of contract where the agreement for sale is not reduced to writing, the burden is heavily upon the plaintiff to prove by oral evidence that there was such an agreement; that consideration money was paid and any unpaid portion of the consideration was offered; and that in spite of the offer of the remainder of the consideration amount and request to execute and register the deed of sale, the defendant refused. [73 DLR (AD) 376]

Misreading and non-consideration

That appellate Court as the final Court of fact on consideration of the material evidence on record allowed the appeal and decreed the suit. The High Court Division can interfere only if the judgement of the appellate Court is based on misreading and non-consideration of the material evidence on record but the High Court Division nowhere in its judgement held that the judgement of the appellate Court is misreading and non consideration of material evidence on record and as such, the High Court Division erred in law in making the Rule absolute.

The Appellate Division observed that the High Court Division reversed the judgment and decree of the appellate Court upon quoting part of the deposition of P.W.5 and finding that P.W.5 admitted that the defendant and the plaintiffs have been in joint possession of the suit land. Upon scrutiny of the deposition of P.W.5, we find that the reference of a fish gher in the joint possession of the plaintiffs and defendant Shahnaz Siraj relates to land which is adjacent to the suit land. Therefore, the finding of the High Court Division that the plaintiffs were not in exclusive possession of the suit land is clearly misreading of the evidence. Moreover, it is not the defendants' case, as pleaded in their written statement that the suit land was a fish gher. The defendants stated in their written statement that they farmed the land. They did not say it was fish gher. We find from the evidence of P.W.2 that the suit land was homestead. The High Court Division clearly did not assess all the evidence on record and decided the case upon misreading evidence. There are by now many decisions of the Supreme Court regarding sections 91 and 92 of the Evidence Act; notable amongst them is the case of Feroza Majid and another Vs. Jiban Bima Corporation, 39 DLR (AD)78. In that case it was held that "Section 92 of the Evidence Act, which is in fact the continuation of section 91, prohibits the consideration of any oral or extraneous evidence to contradict the terms of an instrument when it is proved under section 91, subject, of course, to certain exceptions." In the facts of the instant case, the exception in proviso (5) to section 92 is attracted. This provides that "Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract." [(2022) 25 ALR (AD) 38]

Constitution of Bangladesh, 1972 

Article 102

Citizens' right to privacy in correspondence and other means of communication is guaranteed under article 43 of the Constitution which cannot be easily violated at the instance of any interested quarter.[73 DLR (2021) 514]

Additional Evidence

15 BLC 165: Shamsuzzoha (Md) & another Vs. Khandaker Saidur Rahman & others: Section 107, Order 41 Rule 27 of the Code of Criminal Procedure read with Section 101 of the Evidence Act, 1872 and read with Section 31 of the Contract act, 1872: When no fact of delivery of possession of the suit property or the actual position of the possession thereof was stated in the plaint then how such fact can be noticed or taken into consideration in deciding the merit of the appeal and the documents to that effect can be permitted to be adduced as additional evidence. (Para-8, Mr. Justice Md. Abdul Wahhab Miah).

Additional Evidence by recalling PW in appeal

21 BLC 55: Standard Insurance Ltd Vs. Maq Enterprise Ltd.: Order 41 Rule 27 of the Code of Civil Procedure: When the judgment and decree was passed as admitted position of the surveyors report we do not find any reason for additional evidence to enable the Court to dispose of the appeal. (Para-67, Mr. Justice Md. Nuruzzaman). Ref: 27 DLR(AD)133, 44 DLR(AD)162, 15 MLR(AD)478=63 DLR(AD)5, 27 DLR(AD)129.

17 BLT 571: Moulavi Abdul Khair Mollah Vs. Golafernessa & others: Order 41 Rule 27 and Order 18 Rule 17 of the Code of Civil Procedure: There is no material to show that the plaintiffs had ever approached to the trial Court for admitting the plaint of pre-emption case in evidence and the same was refused by the trial Court. So, in view of the provisions laid down in Order 41 Rule 27 of the Code of Civil Procedure, that document cannot be admitted in evidence by re-calling PW.1. (Para- 15, Mr. Justice Syed Md. Ziaul Karim). Ref: 1 MLR(AD)233, AIR 1928(PC)208, AIR 1948(PC)100, AIR 1996(SC)2358, 55 DLR 228.

Application for additional evidence in Civil Revision 

20 BLT 407: Most. Rafida Bewa & others Vs. Umaruddin being dead his legal heirs 1(a) Md. Abdul Gani & others: Order 41 Rule 27 of the Code of Civil Procedure: The provisions of Order 41 Rule 27 are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up the omissions in the revisional Court and as such the application for additional evidence is not necessary at this point of time to pronounce judgment. (Para-5, Mr. Justice Borhanuddin). Ref: 22 DLR 359 & 451, 26 DLR 45, 32 DLR(AD)170, 42 DLR 434, 49 DLR(AD)151, 51 DLR(AD)81, 54 DLR(AD)7, 10 BLT(AD)173, 1 MLR(AD)210, 2 MLR(AD)363, 4 MLR 273.

Admitted Evidence

Requirement of law

After filing a document it is necessary to prove the same in accordance with law.

13 MLR 01: Tajul Islam & others Vs. Chini Miah & others: Sections 67 and 68 of the Evidence Act, 1872: Unless a document is proved in accordance with law such document cannot be admitted in evidence and mere filing of the document is not sufficient to satisfy the requirement of law. (Para-29, Mr. Justice A.K. Badrul Huq). Ref: 2 All ER 165, 179, 6 MLR(AD)46, 17 Indian Appeal 122, AIR 1918(PC)92, AIR 1963(SC)302, 29 DLR(SC)268, 30 DLR(SC)81, 37 DLR(AD)205, 41 DLR(AD)3, 42 DLR(AD)289, 47 DLR(AD)45, 15 BLD(AD)237, 16 BLD(AD)280, 319 US 533, 308 US 267, 331 US 284.

60 DLR 296: Sultana Jakia Vs. Asadullah: Order 41 Rule 27 of the Code of Civil Procedure read with Section 67 of the Evidence Act, 1872: It appears that the appellant simply filed a photocopy of the so-called Talaknama and some registered postal receipts without making any obligation for acceptance of the same into evidence at the Appellate stage as required under Order XLI Rule 27 of the Code of Civil Procedure and without proving the same by examining any witness competent to prove the documents. Unless a document is proved in accordance with law such document cannot be admitted into evidence forming the basis so far decree which precisely (যথাযথভাবে) has happened in the instant case. (Para-13, Mr. Justice Afzal Hossain Ahmed). Ref: 6 MLR(AD)46, 9 DLR(PC)682.