The New Nation - Internet Edition

High Court Division

(Criminal Appellate Jurisdiction)

Sharifuddin

Chaklader J

Sheikh Abdul Awal J

Judgment April 29th, 2007

Hareshuddin Pramanik (Md) alias Hares

Pramaniktt..

ttConvict Appellant

vs

Statet. Respondent*

Nari-o-Shishu Nirjatan Daman (Bishesh Bidhan) Ain (XVIII of 1995)

Section 6(1)

It is now well settled that the testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the court should find no difficulty in acting on the testimony of a victim of sex crime alone to convict an accused where her testimony inspires confidence and is found to be reliable. Moreover, in this case, testimony of the victim girl (PW 2) finds corroboration from the other available evidence on record including medical evidence, which found marks of violence on the person of the victim clearly indicating that it is a case of rape. .. t. (29)

Seraj Talukder vs State 3 BLC 182 ref.

Tabarak Hossain with Mohammad Ali Azzam, . Advocates-For the Appellant.

Md Mansur Rahman, Assistant Attorney-General -For the State Respondents.

Judgment

Sheikh Abdul Awal J: This appeal at the instance of the convict-appellant Md Hareshuddin· Pramanik alias Md Hares Pramanik under section 24 of the Nari-o-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 is directed against the judgment and order of conviction and sentence dated 11-9-2001. passed by the Judge·of the Nari-o-Shishu Nitjatan Daman Bishesh Adalat No. 3, Naogaon in Nari-o-Shishu Nirjatan Case No. 171 of 1998 convicting 'the accused appellant under section, 6(1), of the Nari-o-Shishu Nitjatan Daman (Bishesh Bidhan) Ain, 1995 and sentencing him thereunder to suffer rigorous imprisonment for life.

2. The prosecution case. as transpired from the evidence of PW 1 Md Meseruddin is that on 1-9-1998 at evening he went to set up net for catching fish in a nearby marsh from his house while his granddaughter Mosammat Rozina aged about 8 and Md Hareshuddin Pramanik also came there, for catching fish. After setting up net the informant returned back to his house but seeing delay of his granddaughter Mosammat Rozina he came forward and at 7-30 PM the accused Hares on seeing him fled away and at that time the informant saw his granddaughter lying under a palm tree in undressed condition. On that; the informant raised alarm and then witnesses namely, Mofiz, Shahjahan, Alauddin and his son’s wife rushed there and they brought the victim to their house and made arrangement for her treatment and also brought this matter to the notice of the father and mother of the accused Hareshuddin Pramanik alias Hares. : At night at about 10-00 PM the victim Mosammat Rozina got back her sense and then on query she disclosed that after setting up net while she was coming back to her house, the accused Hares shut her mouth 'with 'Gamcha’ and put off her pant and forcibly committed rape on her. The victim Rozina was brought to Naogaon Sadar Hospital for better treatment. Upon the aforesaid first information report, Naogaon Police Station Case No. 5 dated 2-9-1998 under section 6(1) of the Nari-o-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 was started.

3. 'The police after investigation submitted charge sheet against the appellant under section 6 (1) of’ : the Nari-o-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995.

4. Ultimately the accused was put on trial before the Nari-o-Shishu Nirjatan Daman Tribunal No.3, Naogaon to: answer a charge under section 6(1) of the Nari-o-Shishu Nitjatan Daman (Bishesh Bidhan) Ain 1995 to which the appellant pleaded not guilty and claimed to be tried.

5. At the trial-prosecution in total examined 11 witnesses to prove the charge and the defence examined none. The defence case as it transpires from trend of Cross-examination 'of the prosecution witnesses is that the appellant is innocent and has been falsely implicated in this case out of previous enmity and grudge.

6. After the close of the evidence, the accused appellant on dock was examined under section 342 of the Code of Criminal Procedure to which he repeated his innocence and declined to adduce any evidence but made a grievance of false implication.

7. The learned Judge of the Nari-o-Shishu Nirjatan Daman Adalat on consideration of the evidence and materials on record found the appellant guilty under section 6(1) of the Nari-o-Shisu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 and consequently convicted and sentenced him as aforesaid.

8. Being aggrieved and dissatisfied with the said judgment and order of conviction and sentence dated 11-9-2001 the convict-appellant preferred this appeal.

9. Mr Tabarak Hossain, the learned Advocate appearing for the convict appellant, in the course of argument, has taken us through the FIR, charge sheet, deposition of witnesses and other materials on record and he submits that the impugned judgment and order of conviction cannot be sustained in law because the entire case is concocted and false.

The learned Advocate submits that in this case most of the witnesses are relations and interested witnesses and it is highly unsafe to rely on the evidence of partisan witnesses for sustaining a conviction under the harsh provision of the Nari-o-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 without any sort of corroboration by independent witness. He further submits that the facts of the prosecution case do not bring it within clause (1) of section 6 of the Nari-o-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995, inasmuch as medical report as well as testimony of doctor PW 9, Dr Mahbub Alam did not corroborate with the evidence of PW1, PW2, PW3, PW4, PW6 and PW 10 in respect of rape. Mr Tabarak Hossain further submits that the medical report shows that the victim Moasmmat Rozina did not sustain any injury on her face, checks or breasts at the time of commission of the alleged rape and the medical board did not detect any sign of rape on the person of the victim, although the learned Tribunal Judge without proper application of his judicial mind to the facts and circumstances of the case and evidence on record and without deciding all relevant points involved in the case in its correct perspective, most illegally and arbitrarily found the appellant guilty for commission of an offence of rape and consequently, passed the impugned judgment and order of conviction and sentence which is liable to be set aside. Mr Tabarak Hossain, the learned Advocat, in support of his submissions, has relied on the decision reported in 3 BCL 182.

10. Mr Md Mansur Rahman, the learned Assistant Attorney-General, on the other hand, appearing for the State, submits that the learned Tribunal Judge on consideration of the evidence and materials on record rightly found the appellant guilty under section 6(1) of the Nari-o-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 and therefore, on assigning cogent and sound reason passed the impugned judgment and order of conviction and sentence which should not be disturbed. The learned Assistant Attorney-General, on referring the medical examination report of the victim PW 2 as well as the deposition of witnesses and other materials on record, submits that PWs 1-11 categorically testified in their respective testimony that the victim Rozma was raped by the accused appellant which also finds support from the medical examination report and, as such, the appeal is liable to be dismissed.

11. To appreciate the submissions of the learned Advocates of both the sides as well as the impugned judgment from a correct angle let us now turn to the evidence on record as adduced by the prosecution to see whether the prosecution has been able to prove the guilt of the accused beyond reasonable doubt.

12. PW 1, Md Meseruddin Pramanik is the informant of the case, who stated in his deposition that on 1-9-1998 at about 7-30 PM he went for catching fish in nearby marsh and at the time of setting up net he saw accused Hares and his grand-daughter Rozina also setting up net for catching fish. This witness also stated that after setting up net he asked his grand-daughter Rozina whether she wants to go back home with him while Rozina told him that after setting up net she will come. This witness also stated that

†ivwRbv wd‡i bv Avmvq Avwg †ivwRbv‡K mv‡_ †bIqvi Rb¨ AvMv‡q hvB| Zvj Mv‡Qi Kv‡Q hvIqvi Av‡MB Avmvgx nv‡im Avgv‡K †`‡L †`Š‡o cvjv‡q hvq| Avwg Zvj Mv‡Qi Kv‡Q wM‡M †`wL †ivwRbv DjsM Ae¯’vq c‡o Av‡Q Ges ci‡bi nvd c¨v›U 2/3 nvZ `~‡i c‡i Av‡Q| ZLb Avwg wPrKvi Ki‡j kvnRvnvb, AvjvDwÏb I gwdR AvMv‡q Av‡m| Zvnviv †ivwRbv‡K H Ae¯’vq †`‡L| kvnnvRvb‡K †ivwRbvi gv‡K WvK‡Z ewj| †ivwRbvi gv G‡m †ivwRbv‡K cvRv †Kvjv K‡i evox‡Z wb‡q hvq| †ivwRbvi eqm ZLb 8 (AvU) ermi gZ wQj|

This witness also stated in his deposition that on 1-9-98 at night 12-00 PM Rozina got back her sense and then she disclosed that accused Hares shut her mouth with 'Gamcha and forcibly committed rape on her. This witness also testified that on the following morning the victim Rozina was shifted to Naogaon. Sadar Hospital for treatment. He identified the seized wearing pant of the victim Rozina. In cross-examination he stated that Avwg wPrKvi w`‡j †jvKRb AvMv‡q Av‡m| †ivwRbvi gv‡K †W‡K Avbvi ci †m cvRv‡Kvjv K‡i †ivwRbv‡K evox wb‡q hvq †ivwRbvi gv nvwi‡Kb wb‡q G‡mwQj| cvRv †Kvjv K‡i †bIqvi mgq †ivRbvi Mv‡q Rvgv wQj Z‡e c¨v›U wQj bv| Rvgv‡Z i³ jv‡M wKbv Zv Avwg †`wL bvB| †MvcbvsM w`‡q i³cvZ nq wKbv Zv Avwg †`wL bvB| IUv †g‡q †Q‡jiv †`‡L‡Q| This witness also stated in his cross-examination that on 1-9-98 at night 12-00 PM Rozina regained her sense and then she disclosed that accused Hares forcibly committed rape on her. In cross-examination, he also stated that at the time of lodging the first information report he told to daroga that he found. the victim in undressed condition under a palm tree. This . witness denied the defence suggestion that he deposed falsely.

13. PW 2 Mosammat Rozina Khatun, the victim of the case. She stated in her deposition that on 1-9-1998 at 3-30 PM. Hares came and took net from her mother saying after fishing he will give half share of the fish. This witness also testified that after setting up net for fishing while she was coming back home and then accused Hares forcibly pressing 'Gamcha’ into her mouth committed rape on her and for which she got pain and became senseless. This witness also testified that c‡i ivZ 12-00 Uvi w`‡K Avgvi Ávb wdi‡j †`wL Avwg evox‡Z | †K Avgv‡K evox‡Z †bq Zv Avwg †Ui cvB bvB| Avgvi †hŠbvs‡M w`‡q i³ †ei n‡qwQj Ges Lye e¨v_v n‡qwQj| evwo‡Z Wv³vi Øviv wPwKrmv K‡iwQj| Ávb †divi ci evoxi mevB‡K NUbvi K_v e‡jwQjvg|

This witness also testified that on the following morning she was shifted to Naogaon Sadar Hospital for treatment. She also stated that cywjk Avgvi nvd c¨v›U wb‡qwQj| cv‡q, †c‡U I ey‡K b‡Li `vM e‡mwQj| Avmvgx nv‡im W‡K Dcw¯’Z Av‡Q| GUvB †m Avmvgx| In cross-examination, she stated that Avmvgx Lvivc KvR Ki‡Z jvM‡j Avwg evav w`‡j †m Avgvi ey‡K I †c‡U jvw_ gv‡i| cyi“lvsM Xy‡K †M‡j Avwg AÁvb n‡q hvB| She denied the defence suggestion that after being’ tutored by her grandfather she deposed falsely.

14. PW 3, Md Shahjahan Bagati stated in his deposition that on hearing alarm of PW 1 Mesheruddin Pramanik, he came forward and saw the victim Rozina was lying in nude condition under a palm tree. This witness’ also stated that Rozina told him that she was raped by the accused Hares. He identified the accused on dock.

15. PW 4 Mosammat Hasina Bibi is the mother of the victim Rozina Khatun. She in the line and language gave version of PW 1 in respect of all material particulars. Her examination-in-chief could not be shaken’ in cross-examination by the defence.

16. PW 5, Mosammat Sazeda Khatun is the aunt of Rozina. She stated in her testimony that occurrence took place on 1-9-1998 at about 7-30 PM. In the evening Hares and Rozina went for fishing and some time after Md Shahjahan (PW 3) called her brother’s wife and then her brother’s wife called her and accordingly, they went to the palm tree adjacent to the marsh and saw the victim Rozina was lying in undressed condition under a palm tree while they brought Rozina in the house and arranged for treatment. This witness also testified that at night at 12-00 PM Rozina got back her sense and then, she told that the accused Hares forcibly committed rape on her.

17. PW 6 Mofizuddin in his testimony corroborated the evidence of PW I, PW 2, PW 3, PW 4 and PW 5 in respect of all material particulars: His examination-in-chief could not be shaken in cross-examination by the defence.

18. PW 7, Md Abul Kashem stated in his deposition that police seized a pant of the victim Rozina as alamat and prepared a seizure list in his presence, he proved the seizure list as Exhibit 1 and his signature thereon at Exhibit 1/1. This witness also proved the material Exhibit 1. In cross- examination he denied the defence suggestion that he deposed falsely.

19. PW 8 Mansur Ali is also a seizure list witness .. He proved the seizure list and his signature thereon as Exhibit 1/2. In cross examination, he denied the defence suggestion that he deposed falsely.

20. PW 9, Dr Mahbub Alam stated in his deposition that he examined the victim Rozina Khatun along with other members of the Medical Board. He testified that during examination they found the marks of injury on the right hand of the victim. This witness also testified that wfKwUg‡K cix¶v K‡i Zvi †Mvcbvs‡M †dvjv cvB Z‡e †Kvb ïµvby cvIqv hvq bvB| Avgiv †gwWK¨vj †ev‡W© cix¶v Kwi comment· : signs of indecent assault are found on her body D‡jL K‡iwQ| I He proved the medical examination report as Exhibit 2 and his signature thereon as Exhibit 2/1.

21. PW 10, Alauddin in his deposition corroborated the evidence of PW I, PW 2, PW 3; PW 4, PW 5 and PW 6 in respect of all material particulars. His examination-in-chief could not be shaken in cross examination by the defence.

22. PW 11 Shariful Alam, Sub-Inspector of Godagari Police Station is the investigating officer of the case. He stated in his deposition that during investigation he visited the place of occurrence, prepared sketch map along with separate index, examined the witnesses under section 161, CrPC, seized the alamats and obtained the medical examination report of the victim as well as her statement recorded under section 164, CrPC. He also stated that after completion of the investigation he found prima facie’ case against the accused appellant Hareshuddin Pramanik and submitted charge sheet, vide its No 178 dated 29-10-1998 under section 6(1), of the Nari-o-Shishu· Nirjatan Daman (Bishesh Bidhan) Ain, 1995. He proved the sketch map as· Exhibit 3 and his signature thereon as Exhibit 3/1, index as Exhibit 4 and his signature thereon as Exhibit 4/1.

23. In cross-examination, he denied the defence suggestion that without having proper investigation he submitted charge sheet against the accused appellant.

24. This is all about the evidence of this case on which the learned Tribunal Judge convicted and sentenced the accused appellant as mentioned above. The question arises as to whether the prosecution has been able to prove the case by cogent and reliable evidence that the appellant has committed rape on the person of the victim PW 2, Rozina.

25. On assessment of evidence on record, it appears to us that PW 2, Rozina, the victim girl, herself testified the whole occurrence clearly. She stated in her evidence that on 1-9-1998 at 7-30 PM after catching fish, while she was coming back home the accused Hares shut her mouth with 'Gamcha’ and put off her half pant from her body and forcibly committed rape on her in which she got pain and became senseless. In cross-examination, she stated that Avmvgx Lvic KvR Ki‡Z jvM‡j Avwg evav w`‡j †m Avgvi ey‡K I †c‡U jvw_ gv‡i| cyi“lvsM Xy‡K †M‡j Avwg AÁvb n‡q hvB| This very statement in a natural way by a village girl of 10 years is enough to believe that on that fateful evening she was raped by the appellant. Besides, her evidence on this material particular finds due corroboration of the testimony of PW I, PW 2, PW 3, PW 4, PW 5, PW 6 and PW 10. PW I, Md Meseruddin Pramanik is the grandfather of the victim Rozina. He stated in his evidence that on 1-9-1998 in the evening he went for catching fish in a nearby marsh and at the time of setting up net he saw accused Hares and his grand daughter Rozina also setting up net for catching fish. This witness also stated that finding delay in returning back home of his grand daughter Rozina he came forward and saw accused Hares who on seeing him fled away and then he found his grand-daughter Rozma was lying under a palm tree in nude condition while he raised alarm and then the witnesses named Shahjahan, Alauddin, Mofiz and victim Rozina’s mother rushed there and brought her to their home wherein Dr Prodip Dey gave treatment on the person of the victim Rozina. At night 12-00 PM victim Rozina got back her sense and then she disclosed that after setting up net for fishing while she was coming back home and then on the way under a palm tree accused Hares shut her mouth with 'Gamcha’ and put off her half pant from her body and forcibly committed rape on her for which she got pain and became senseless. These material evidences of PW 1 are well corroborated by the PWs namely PW 2, PW 3, PW 4, PW 5 PW 6 and PW 10 in respect of all material particulars.

26. As regards the submissions made by the learned Advocate Mr Tabarak Hossain that the medical board did not detect any sign of rape on the person of the victim Rozina, we have carefully examined the medical examination report as evidenced by Exhibit-2 as well as deposition of PW 9, Dr Mahbub Alam. In the medical examination report, it appears that doctors of the medical board’ opined -that “signs’ of indecent assault are found’ on her body”. PW-9, Dr Mahbub Alam stated in his evidence that wfKwUg cix¶v K‡i Zvi †Mvcbvs‡M †dvjv cvB Z‡e †Kvb ïµvby cvIqv hvq bvB| Accordingly, the offence as committed by the appellant further finds corroboration from the medical report. Therefore, the grievance of the learned Advocate Mr Tabarak Hossain does not find any leg to stand on.

27. The case reported in 3 BLC 182, wherein it has been laid down as follows:

“In the facts and circumstances as discussed above, and the contradiction and absence of sign of rape in the medical report and non-examination of wearing clothes made the whole case a most doubtful one.

28. The facts of the above cited case, it appears to us, has no manner of application in the facts and circumstances of this case, inasmuch as in the present case, we have already indicated that PW 2, Rozina Khatun the victim girl, herself vividly narrated the whole occurrence and stated the circumstances clearly and her evidence in respect of all material particulars finds due corroboration from the evidence of all other witnesses and medical examination report of the victim Rozina.

29. It is now well. settled that the testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Court should find no difficulty in acting on the testimony of a victim of sex crime alone to convict an accused where her testimony inspires confidence and is found to be reliable. Moreover, in, this’ case, testimony of the victim girl (PW 2) finds corroboration from the other’ available evidence on record, including medical evidence, which found marks of violence on the person of the victim clearly indicating that it is a case of rape.

30. We have carefully gone through the first information report, charge sheet, confessional statement, depositions of witnesses and other materials on record and also given our anxious considerations to the submissions of the learned Advocates of both the sides. It appears to us the overwhelming evidence of the PWs have clearly established that it is accused Md Hareshuddin Pramanik alias Md Hares Pramanik, who committed the crime of rape on the victim Rozina Khatun. The learned Judge of the Nari-o-Shishu Nirjatan Daman Bishesh Tribunal has rightly found accused-appellant Md Hareshuddin Pramanik alias Md Hares Pramanik guilty of the offence under section 6(1) of the Nari-o-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995. Therefore, we do not find any ground to interfere with the judgment passed by the learned Tribunal Judge.

31. In the result, the appeal is dismissed.

The impugned judgment and order of conviction and sentence dated 11-9-2001 passed by the learned, Judge, of the. Nari-o-Shishu Nirjatan Daman Bishesh Adalat No. 3 Naogaon in Nari-o-Shishu Nirjatan Case No. 171 of 1998 is hereby affirmed.

Let a copy of the judgment along with the Lower Court’s record be sent down at once.

APPELLATE DIVISION (Civil)

Mohammad Fazlul Karim-J.

Amirul Kabir Chowdhury-J.

Md. Joynul Abedin-J.

CIVIL PETITION FOR LEAVE TO APPEAL No. 599 of 2005

(From the judgment and order dated 13th March, 2005 passed by the High Court Division in Civil Revision No. 1541 of 2001).

Md. Rezaul Ahsan

tttttPetitioner.

Vs.

Salamat Miah Wakf Estate, represented by the Mutwalli Amir Sultan Ali Haider and others

ttttt.Respondents

For the Petitioner : Mr. Mahbubey Alam, Senior Advocate, instructed by Mr. Md. Nawab Ali, Advocate-on-Record.

For Respondent

No.1 : Mr. S.M. Monir,

Advocate, instructed by Mr. Md. Aftab Hossain, Advocate-on-Record.

For Respondent No.2 : None represented.

Judgment: 3 May, 2007

Premises Rent Control Act, 1991-

Section 18-Payment of rent for three months at a time makes the tenant/defendant defaulter-

In a suit for ejectment where the defendant· paid the rents of the suit premises for 3(three) months together at a time, this shows the defendant, a monthly tenant, is a defaulter in the regular payment of rent and as such, thereby rendered himself liable to be evicted.

The defendant as well failed to prove payment of rent regularly rendering him a defaulter, inasmuch as payment of rent together for 3 months itself made the defendant a defaulter. Accordingly, the suit was decreed. The defendant No.1 is directed to vacate. the suit premises and hand over the vacant possession of the suit premises to the plaintiff within 3(three) months from the date of receipt of the order failing which the plaintiff shall execute the decree through the Court ttttt (Para 7)

JUDGMENT

MOHAMMAD FAZLUL KARIM-J:

This petition for Leave to Appeal is directed against the judgment and order dated 13.03.2005 passed by the High Court Division in Civil Revision No. 1541 of 2001 making the Rule absolute with a direction to evict the present petitioner from the 'suit premises:

2. The relevant facts of the case are that the respondents as plaintiffs filed S.C.C. Suit' No. 13 of 1996, for ejectment of monthly tenant from the suit premises alleging, inter alia, that the Salamat Mia Waqf Estate enrolled as E.C. No. 4028 with the proforma defendant No.2 and that the respondent, Amir Sultan Ali Haider was appointed Mutwalli of the said Waqf Estate and that the petitioner was inducted into the suit premises as monthly tenant through an agreement executed on 15.01.1972 at a monthly rent of Tk. 50.00 and that the petitioner runs a hotel under the name. and style M/S. "Purbarag Hotel" that the petitioner most illegally in collusion with one Khorshed Alam filed a case being House Rent Case No.264 of 1976 wherein the said Khorshed Alam was made one of the parties and thereby depositing rent in the said house rent case and that the Waqf Estate has been depriving of the benefit and that in order to remove the misunderstanding of the parties the defendant No.2 wrote a letter on 31.12.1986 to defendant No.1 directing him to pay the rent to the respondent but the defendant No.1 ignoring the said direction continued depositing rent in the aforesaid house rent case instead of paying' rent to the respondent and that the defendant No.1 having not been paying rent to the respondent as per the terms of agreement became defaulter since 1986 and is liable to be evicted being defaulter in payment of rent and that the defendant No.1 most illegally without taking consent of the plaintiff broke part of the roof of the suit premises and replaced it by affixing tin over there and opened an additional door by breaking the wall of the suit premises and sub-let the said suit premises to one Swapan Kumar and thereby the respondent was constrained to send notice under Section 106 of the Transfer of Property Act by registered post with A/D through his lawyer on 20.09.1995 determining the tenancy from 1st April, 1996 and that, by that notice the defendant No.1 was asked to hand over the vacant possession of the suit premises to the respondent on the expiry of March, 1996 failing which the defendant No.1 shall be treated as trespasser in the suit-premises from 01.04.1996· and for his illegal and unauthorised occupation he has to pay Tk. 50.00 per diem till he is evicted from the suit premises and the said notice has duly been received by the defendant No.1 who acknowledged the receipt of notice but he did not vacate the suit premises; hence the suit.

3. The defendant No.1 contested the suit by filing written statement contending that the defendant No.1 entered into the suit premises by virtue of an agreement dated 15.01.1972 at a rent of Tk.50.00 per month and that he has been running a restaurant in the name and style. "M/S. Purbarag Hotel" wherefrom he earns his livelihood having no other sources of income and, that he with the consent and within the knowledge of the plaintiff developed and decorated the premises at his own cost and that the plaintiff took Tk: 500/1000 at the time of his necessity in advance, by issuing kacha receipts against the rent and that later on, when the income tax department raised objection as to the kacha receipt, then the defendant, approached the· plaintiff to issue pucca receipt but the plaintiff did not issue any pucca receipt as the pucca receipt was not printed and went on collecting rent against kacha receipt as usual and thereby misunderstanding cropped up between the plaintiff and the defendant No.1 in respect of rent receipt and that the defendant No.1 was compelled to send rent for two months of money order. The plaintiff was not available at his residence during the time when the money order was sent and, as such, the money order was returned. Thereafter, the defendant No.1 again sent rent for the next month through money order which was also returned and that he came to know from various sources, that the plaintiff in not accepting the rent wanted to make him defaulter in order to evict the defendant No.1 from the suit prepress in order to let the suit premises out to a third party at a higher rate of rent and, as such, the defendant No. 1 was compelled to file house rent Case No.264 of 1976 in the court of House Rent Controller, Rajshahi in which the plaintiff appeared and filed written objection but lastly, remained absent from contesting the case. As a result an order was passed ex parte on 01.04.1986 and the defendant No. 1 has been continuing to deposit rent in the said case and that he is not a defaulter and did not damage the suit premises and did not let out the same to anybody else and that he has been controlling and managing the suit premises through Managers and employees and that he earned goodwill and reputation and that there were many suits and cases between the beneficiaries of the suit property and some of those went upto the highest. Court of the country and that the plaintiff on various occasions issued notices upon the defendant. No.1 through Advocate and Administrator of Waqf and threatened for evicting him from the suit premises but failed.

4. Mr. Mahbubey Alam, learned Counsel, appearing for the petitioner, submits that in the Civil Revision serious question of law was involved and legality of the claim made by the petitioner was also involved but the learned High Court Division without entering into the merit of the case passed the impugned judgment and order hence the impugned order is liable to be set aside; that the High Court Division was wrong in holding that the petitioner is a defaulter though the respondent No.1 admitted in his plaint of the S.C.C. suit and in the deposition of PW 1 of the suit, in the notice under Section 106 of the Transfer of Property Act, that the petitioner is depositing the rent in the house rent case No.264 of 1976 but despite those admissions of payment of rent the High Court wrongly held that the defendant-petitioner did not prove that he made payment of rent hence the judgment and decree of the High Court Division being tainted with legal infirmity is to be set aside. That the High Court Judge was wrong in holding that the respondent No.1 alleged to take Tk. 500-1000 from the hotel which the petitioner did not maintain by account for the amount and it was believable despite the fact the respondent No.1 in his written objection filed in the house rent case in the S.C.C No. 13 of 1996 stated that he received the rent of the premises and the High Court Division by decreeing the suit acted illegally, hence the impugned judgment and decree is liable to be set aside. That the High Court Division was wrong in holding that the petitioner changed the nature of the suit premises without permission of the landlord though the respondent stated in his cross examination in S.C C suit that the premises is a two storied building, comprising ground floor consisting of 9 shops including the suit premises and the 1st floor is a residential hotel. So there was no allegation of damaging the roof and it was not even proved by the plaintiff hence the impugned judgment and decree is liable to be set aside.

5. Lastly, Mr. Alam further submits that the petitioner sub-let the suit premises to one Mr. Dilip Kumar though later as DW-2 of the S.CC suit stated in his deposition that he and his brother Swapan Kumar are the managers of the hotel under the petitioner and accordingly, the trial Court on consideration of the evidence on record and exhibits dismissed the plaintiff's suit but the High Court Division without reversing the findings of the trial Court set aside the judgment and order of the trial Court, hence the impugned judgment and order is liable to be set aside.

6. It appears from the record that the High Court Division while reversing the findings of the. Court below was of the view that the decision of the trial Court should be interfered with as the same is against the weight of evidence on record. The High Court Division found no material on record that admittedly the petitioner in order to develop and decorate the hotel and earn more profits changed the rented premises without the permission from the landlord instead damaged the premises by breaking the part of the roof, converted it into a kitchen and let out the premises to one Swapon Kumar.

7. The defendant as well failed to prove payment of rent regularly rendering him a defaulter, inasmuch as payment of rent together for 3 months itself made the defendant a defaulter. Accordingly, the suit was decreed. The defendant No.1 is directed to vacate the suit premises and hand over the vacant possession of the suit premises to the plaintiff within 3(three) months from the date of receipt of the order failing which the plaintiff shall execute the decree through the Court.

8. In view of the above, we do not find any substance in the submissions of the learned Advocate for the petitioner.

9. Accordingly, this petition is dismissed.