The New Nation - Internet Edition

Appellate Division

(Civil)

Md. Ruhul Amin-C.J.

M. M. Ruhul Amin-J.

Md. Tafazzul Islam-J

Md. Abdul Matin-J.

Civil Petition for leave to appeal No. 855 of 2004

(From the judgment and order dated 20.04.2004 passed by the High Court Division in F. A. No.68 of 2002 with Civil Rule No. 282 (F) of 2002.)

Messrs N.F.M. Universal Estate Ltd. represented by its Managing Director

Abdul Awal (Minto) tt.Petitioner.

vs.

A.N.M. Obaidul Islam being dead his heirs: Gulshan Begum and others tttt..Respondents.

For the Petitioner : Mr. Rafique-ul Huq, Senior Advocate (Mr. Khondker Mahbubuddin Ahmed, Senior Advocate Mr. S. M. Manir, Advocate with him) instructed by Mr. Syed Mahbubur Rahman Advocate-on-Record.

For Respondent

Nos.1-8 : Mr. Mahmudul Islam, Senior Advocate instructed by Mr. Md. Aftab Hossain, Advocate-on-Record.

Respondent Nos. 9-21 : Not represented.

Judgment: 30 October, 2007

Code of Criminal Procedure, 1898-

Section 195(1)© and 476 Complaint by court in respect of forgery of document and use of the same in judicial proceedings-

The appellate Court has all the powers of the trial Court as contemplated under section 107 of the Code of Civil Procedure. The appellate Court is competent to do what the trial Court ought to have done. In the instant case the Exhibit "kha" has been found to be forged document by the trial court as well as the appellate court, and as such, the High Court Division as the appellate Court was quite justified to make the 'complaint under section 195(l)© in the manner as provided under section 476, Cr.P.C. The apex court found the findings and decision of the High Court Division perfectly justified.

In view of the undisputed record of rights and payment of rent by the plaintiffs and oral and documentary evidence the High Court Division rightly found the plaintiffs in exclusive and specific possession of the suit land…(Para 11)

If it is found at the trial that D.W.I fraudulently or dishonestly used Exhibit Kha as genuine which he knew or had reason to believe to be a forged document he will be punished in the same manner as if he had forged such document. . (Para 15)

In a case like this private prosecution is barred under Section 195(1) © of the Code of Criminal Procedure and the procedure for prosecution has been laid down in Section 476 of the Code of Criminal .

Procedurett.(Para 16)

Section 195(1) © contemplates a complaint in writing by the court before which such document is produced or given in evidence, "or some other court to which such court is subordinate". In the present case the trial court in which the Exhibit-Kha was given in evidence is subordinate to the High Court Division and therefore the High Court Division itself was competent to make the complaint. In view of Section 476A of the Code of Criminal Procedure the High Court Division being the superior court was competent to make the complaint since the subordinate court omitted to do so t..(Para 17).

This apart, the High Court Division acted as appellate court and under Section 107 of the Code of Civil Procedure had all the powers of the trial court and the appellate court was not only competent to do what the trial court ought to have done but was duty bound to take steps for any offences affecting the administration of justice and chapter XXXV of the Code of Criminal Procedure is meant for such proceeding and therefore the High Court Division has done the very thing which the trial court ought to have done and in so doing the High Court Division has not committed any error nor has caused any failure of justice ttt.(Para 18).

Judgment

MD. ABDUL MATIN-J: This petition for leave to appeal is directed against the judgment and order dated 20.04.2001: passed by the High Court Division in First Appeal No. 68 of 2002 affirming the judgment and decree dated 23.11.2001 passed by the Joint District Judge, 5th Court, Dhaka in Title Suit No.l35 of 1997.

2. The facts, in short, are that the predecessor-in-interest of the respondent Nos.1 to 8 instituted the Title Suit No.120 of 1992 in the Third Court of the then Subordinate Judge, Dhaka on 27.06.1992 for declaration of title and recovery of khas possession of the suit property after removing all structures from the suit property stating, inter alia, that Abdul Kader was the C.S. recorded tenant of the suit property. Abdul Kader sold the suit property to Sarat Chandra Chose Ukil by a registered deed No.351 on 12.01.1921. Sarat Chandra Chose Ukil gave a registered Barga kabuliyat for 6 years on 19.05.1924 to Sk. Ahsanullah alias Munshi and Sk. Mohammad son of Sk. Ahsanullah. After 6 years, Sarat Chandra Chose Ukil took back the possession of the suit property to his own possession and made a will of 70 acres on 24th Ashar, 1335 B.S. (1928 AD.) in favour of Premthosh Ghose and Bimala Charan Ghose who filed the probate Case No.7 of 1934 and Probate was granted on 19.07.1935. Premtosh Ghose and Bimala Charan Ghose sold.

(To be continued)