MD. AFAZUDDIN Vs. MD. ATAUR RAHMAN

JUDGEMENT

(1.) This appeal by leave is directed against the judgment and order dated 28.01.2002 passed by a Division Bench of the High Court Division in Civil Revision No. 3537 of 1999 heard analogously with Civil Revision No.3536 of 1999 disposing the same with modification.

(2.) The respondent No.1 as plaintiff instituted Title Suit No. 562 of 1985 in the 1st Court of Subordinate Judge (now Joint District Judge), Dhaka against the present appellant and others for Specific Performance of Contract. The suit was subsequently transferred to the 3rd Court of Subordinate Judge (now Joint District Judge), Dhaka and was renumbered as Title Suit No. 3 of 1987.

(3.) The case of the plaintiff, in short, is that the defendant No. 1 entered into an agreement with him to sell the suit property at a consideration of Tk. 1,20,000/- and on receipt of Tk.5,001/- from the plaintiff as earnest money the defendant No.1 executed a bainapatra in favour of the plaintiff on 19.02.1985. There was stipulation that defendant No.1 after procuring necessary papers would inform the plaintiff and thereafter, on receipt of the balance consideration money within a month from the date of bainapatra, the defendant No.1 would execute and register the necessary sale deed in favour of the plaintiff. On 02.03.1985 the plaintiff enquired from the defendant No.1 if he had obtained necessary papers for completion of the transaction. The defendant No.1 replied that he was trying to procure the same. The plaintiff again enquired from the defendant No.1 on 10.08.1985 but the defendant No.1 was found to be indifferent. The plaintiff continued to request the defendant No. 1 for procuring necessary papers but the defendant No. 1 did not pay any heed to it. On receipt of the summons of Title Suit No. 737 of 1985 of the 2nd Court of Munsif (now Assistant Judge), Dhaka, the plaintiff learnt that the defendant No.1 as plaintiff filed the suit for recovery of khas possession of 1/3rd katha of land of Plot No.219 of Khatian No.6, of Mouza Ibrahimpur, P.S. Dhaka Cantonment, Dhaka against him and his wife as defendants. Inspite of repeated reminders the defendant No.1 did not execute the sale deed on receipt of balance consideration money although the plaintiff was always ready and willing to pay the balance consideration money to the defendant No.1. The plaintiff was, therefore, constrained to file the suit for specific performance of contract.