MD. MOJIBUL HUQ Vs. MD. YAKUB ALI

JUDGEMENT

(1.) This appeal, by leave, is against the judgment and order dated June 8, 2000 of a Single Bench of the High Court Division in Civil Revision No. 5011 of 1998 discharging the Rule obtained against the judgment and order dated November 10, 1998 of the 4th Court of Additional District Judge, Dhaka in

(2.) Facts in the background of which the Dispute Case was filed, in short, are that Respondent No. 1 is the Member (No. 179) of Mirpur Mazar Co-operative Market Society Limited (the Society) and he got allotment of shop Nos. 235(ka) and 235(kha) in the ground floor of the under construction market of the Society and got possession of the said 2 shops. He let out the shop No. 235 (kha) to one Shah Alam and Respondent No. 1 having felt necessity of cash money mortgaged the shop no. 235(kha) to the appellant and his brother Fazlul Haque, who died later on, on December 7, 1979 and upon putting thumb impressions in the undertaking received Tk. 36,000/- as loan. It was stipulated in the said undertaking that in case of return of the aforesaid amount of money the appellant and his brother would return the shop no. 235 (kha) to him and till the money is returned appellant would be in control of the shop No. 235 (kha). He, in the month of January and February, 1985 paid back Tk. 36,000/- and thereupon the appellant returned the original copy of the mortgage deed, but did not make over possession of the shop. The appellant asked him to wait till disposal of the merchandise in the shop and he accepted the said assurance of the appellant since at the relevant time the appellant was one of the persons in the management of the Society. He waited for having the possession of the shop, but the appellant on different pretexts delayed handing over of possession of the shop and also harassed him and at one stage he avoided him (respondent No. 1). It is the contention of the Respondent No. 1 that at the time of taking his thumb impressions in the undertaking the same was not read over to him and the original copy of the undertaking having been returned to him, he caused the same to read to and then came to know that appellant had obtained his thumb impressions in the undertaking which was not a mortgage deed but a sale deed. As he did not get possession of the shop no. 235(kha), he represented to the District Co-operative Officer stating that although in pursuant to his representation an inquiry was held by the Thana Co-operative Officer, Mirpur and thereupon District Co-operative Officer, Dhaka by the Memo, dated 13.11.1988 addressed to the President and the Secretary of the Society directed them to allot to him shop No. 66 in the 1st floor and to return Tk. 3,000/-deposited towards the costs of construction of shop no. 235(kha), but no step in that respect was taken and as no step was taken, he prayed to the District Co-operative Officer, Dhaka for allotment of the shop No. 66 and for return of the money deposited towards costs of construction of shop no. 235(kha). On the said petition Dispute Case No. 65 of 1993 was registered. The Arbitrator and Inspector of the Co-operative Society, Dhaka by the order dated April 12, 1994 dismissed the claim of the Respondent No. 1 for allotment of shop No. 66 in the 1st floor and for return of Tk. 3,000/- deposited towards the costs of construction of shop no. 235(kha). As against the order of the Arbitrator the Respondent No. 1 filed Appeal No.5 of 1994 before the District Co-operative Officer and Appellate Officer. In the petition upon which the aforesaid appeal was registered it was stated that the Respondent No. 1 having felt necessity of cash money he on receiving Tk. 36,000/- from the appellant and his brother Fazlul Haque (now dead) mortgaged shop no. 235(kha) with the stipulation that on payment of the money the shop as well as the mortgaged deed would be returned and also possession of the shop would be restored to him and he had paid back the money to the appellant and thereupon although the appellant returned the original copy of the mortgage deed but did not handover possession of the shop. It was also stated in the said petition that the Respondent No. 1 at the time of hearing of the dispute case pointed out to the Arbitrator that the document on the basis of which appellant claiming the shop is forged.

(3.) In the petition upon which the appeal was registered it was prayed steps may be taken so that the Respondent No. 1 get back his shop no. 235(kha). The appellate authority dismissed the appeal with the finding that Dispute Case has correctly been decided. Then the Respondent No. 1 as per provision of section 134(5) of the Co-operative Societies Ordinance, 1984 (the Ordinance) filed Miscellaneous (Co-operative Society) Case no. 297 of 1994 before the Court of District Judge, Dhaka. The said appeal was heard by the 4th Court of Additional District Judge, Dhaka. Before the Court of learned Additional District Judge the Respondent No. 1 filed the deed dated 7.12.1979 which was returned to him by the appellant on paying back of the amount borrowed by the Respondent No. 1 and the appellant also filed the deed dated 14.3.1980 on the basis of which he claimed the shop contending that Respondent No. 1 sold the shop in question to him and the learned Additional District Judge on scrutiny of the said two documents arrived at the finding that the deed dated 14,3.1980 was brought into existence through forgery. The finding of the learned Additional District Judge that the deed dated 14.3.1980 was forged and fabricated based on internal evidence of that very document. The learned Additional District Judge also observed that the appellate authority disposed of the Appeal No. 5 of 1994 without calling the persons who figured as the witnesses in the deed of the Respondent No. 1 (herein appellant) and that without considering the paper filed by the parties. The learned Additional District Judge also held that the Respondent No. 1, who was the petitioner in Miscellaneous Case no. 297 of 1994 filed before the Court of District Judge, Dhaka; mortgaged the shop no. 235(kha) to the appellant who was Respondent No. 7 in the Miscellaneous Case, and to his brother on receiving Tk. 36,000/- and on repayment of the said amount the appellant, Respondent No. 1 herein, got back the document from the Respondent No. 7, herein appellant and his brother, but the Respondent No. 7 upon resorting to forgery and in collusion with the scribe of the deed, which was returned to the Respondent No. 1 herein and beyond the knowledge of said Respondent No. 1, got the mortgage deed written as