MD. JOYNAL and OTHER vs. Respondent: MD. RUSTAM ALI MIA and OTHERS

Jul 24, 2022

IN THE SUPREME COURT OF BANGLADESH
(APPELLATE DIVISION)

C.A. 137 of 1983

Decided On: 23.08.1983

Appellants: MD. JOYNAL AND OTHER
Vs.
Respondent: MD. RUSTAM ALI MIA AND OTHERS

**Hon’ble Judges:**F.K.M. Abdul Munim, C.J., Badrul Haider Chowdhury, Shahabuddin Ahmed, Chowdhury A.T.M. Masud & Syed Md. Mohsen Ali, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Shawkat Ali Khan, Sr. Advocate instructed by A. Baset Majunder, Advocate-on-Record

For Respondents/Defendant: M.M. Huque, Advocate, instructed by B. Hossain, Advocate-on-Record for respondents No. 1 & 2

Subject: Contract

Catch Words

Mentioned IN

Relevant Section:
PENAL CODE, 1860 - Section 235

**Acts/Rules/Orders:**Code of Criminal Procedure, 1898 (CrPC) - Section 144; Code of Criminal Procedure, 1898 (CrPC) - Section 145; Code of Criminal Procedure, 1898 (CrPC) - Section 345; Code of Criminal Procedure, 1898 (CrPC) - Section 379(2); Contract Act, 1872 - Section 23; Penal Code, 1860 - Section 14, Penal Code, 1860 - Section 141, Penal Code, 1860 - Section 143, Penal Code, 1860 - Section 148, Penal Code, 1860 - Section 193, Penal Code, 1860 - Section 235, Penal Code, 1860 - Section 279, Penal Code, 1860 - Section 379, Penal Code, 1860 - Section 380, Penal Code, 1860 - Section 381, Penal Code, 1860 - Section 385, Penal Code, 1860 - Section 448

Cases Referred:
Md. Isha Khan v. Md. Janan Khan 1968 SC M.R. 1313; Jagadish v. Kausillah Devi, AIR 1947 All 317; Emperor v. Lilaram and others 10 Crl. L.J. page 228; Purnendu Kumar Das v. Hiran Kumar Das. 21 D.L.R. Dhaka 918; Ouseph Poulo v. Catholic Union Bank, 1965 (SC) page 166; Moulvi Mohammad Ismail v. Amad Ali, 20 C.W.N 948

Disposition:
Appeal Allowed

Citing Reference:

Affirmed

 

 1

Discussed

 

 4

Distinguished

 

 1

Mentioned

 

 1

Case Note:
Agreement to compromise a criminal case whether valid-Compromise of an offence which is not compoundable is against public policy - Such agreement is void–Where validity of an agreement is impeached on the ground that it is opposed to public policy the party taking the plea must prove the same–A party after securing his discharge in pursuance of a salish agreed by both the parties cannot disown the salishnama–Contract Act (IX of 1972) S. 23–Code of Criminal Procedure (V of 1898) S.345.****
Purnendu Kumar Das V. Hiran Kumar Das : 21 DLR 918; Ouseph Poulo V. Catholic Union Bank : AIR 1965 SC 166 relied

JUDGMENT

Badrul Haider Chowdhury, J.

  1. This appeal by special leave is directed against the judgment and order in Civil Revision No. 1255 of 1979 passed by the High Court Division. The respondents Nos. 1 and 2 filed Title Suit No. 200 of 1974 in the Court of Munsif, Natore for a declaration that the 4 kabalas alleged to have been executed by them on 24.5.73 in favour of the defendant appellants were hit by section 23 of the Contract Act and also for possession of the land.

  2. Plaintiffs case was that land described in schedule Ka of the plaint belonged to Haji Mohan Ali and Abdul Hoque Who out of this land sold Ka schedule land to some other party in 1970 and sold the Kha Schedule land to the plaintiff by executing kabala on 18.9.70 but the kabala was not presented for registration and the vendors refused to register the same when the plaintiffs presented it to the Sub-Registrar Office and got the same registered. The defendant Abdul Hannan and others filed Criminal case against the plaintiff under section 144 Cr.P.C and subsequently the proceeding was drawn up under section 145 Cr.P.C and a receiver was appointed. The defendant Jouynal Abedin brought a Criminal case against plaintiff No. 1 and his relation under section 385 /141 /448 and warrants were issued. Another case was brought against the plaintiff under section 193 and 279 B.P.C. plaintiffs' further case was that a salish was held by the relations of defendants and the plaintiffs and in pursuance of the Salish the plaintiff was directed to execute kabala in favour of the defendant who in turn withdraw the Criminal cases. Accordingly the kabala was executed and defendants withdrew the criminal case. The plaintiff contended that the kabalas concerned in Kha schedule land were without consideration and the Plaintiffs executed then in the face of pressure of the Criminal cases and they were of on effect.

  3. The defendants contested the suit by filing a joint written statement and contended that at the intervention of the local headmen and the villagers the parties were advised to settle their dispute and in terms of the Salishnama both parties agreed to compromise by exchange of lands and accordingly litigations were withdrawn. The suit is liable to be dismissed.

  4. The trial court noticed that there were litigation between the parties" over the property which admittedly belonged to Haji Mohan Ali and Abdul Hoque., both sides placed before the Court certain registered documents though “in spite of having registered documents the defendant did not state their case” in the written statement which warranted a comment by the learned Munsif “Perhaps the defendants” lawyer failed to do his duty honestly". The learned Munsif then considered the contention of the plaintiffs that the consideration of ‘Gha’ schedule kabalas were the compromise of a non-compoundable criminal case. The trial court noticed that Criminal cases had ended in compromise and then considered the salishnama Ext. F which shows:

that a compromise between the parties was made on the condition that the defdts would give some lands to the plffs and plaintiffs in consideration of that will also give the lands of the disputed kabala.

The trial court noticed that the plaintiffs have not examined any witness to give evidence that the consideration of the disputed kabala was the compounding of a non-compoundable case. Its view was that the plaintiffs failed to prove that the consideration of the suit kabala was unlawful. Accordingly the suit was dismissed.

  1. On appeal the learned additional District Judge took the view that the impugned kabalas were executed by he plaintiffs at a time when non-compoundable criminal case was pending against him and found that the execution of the kabala were made for the purpose of stifling a criminal case and as such it is hit by section 23 of the Contract Act because the transaction is unlawful and against the public policy. The appellate Court below noticed the Criminal proceeding under sections 380 and 148 pending against the plaintiff started by the defendants and its vies was that the trial court was not justified in dismissing the suit, and accordingly the appeal was allowed and the suit was decreed declaring that the impugned kabalas dated 24.5.73 executed by the plaintiff in favour of the defendants as void. Reliance was placed on 21 D.L.R. 918 and 5 D.L.R. 114 and 338.

  2. On revision the learned Single Judge of the High Court Division noticed the material portion of Salishnama Ext. F. which runs as follows:

The learned Judge notice in all there were three cases pending namely (1) Criminal case No. 40C of 1973 under sections 145 /379(2) Criminal Case No. 207 of 1973 under sections 148 /448 /380 P.C. (3) Proceeding under section 145 bearing case No. 149M of 1972. It was further noticed that on 24.5.73 the plaintiff executed 4 kabalas in favour of the defendants and on the same date defendants withdrew the Criminal cases as a result the accused were discharged under section 253(2) Cr.P.C and proceeding under section 145 were dropped and the attached properties were released. The learned Judge posed the question:

Whether the disputed kabalas were executed in exchange of the properties of the defendants or in consideration of the compounding of some non-compoundable criminal cases.

The learned Judge kept in view the well settled principle that it is against the public policy to make a trade of felony or compromise an offence which is not compoundable in law and that an agreement to that effect is wholly void. He further noticed a decision of the West Pakistan High Court wherein it was held that in order to settle the dispute between the parties concerning their title to the land but “to finish” criminal cases as well. The compromise that was arrived at was not hit by section 23 of the Contract Act. The matter went before the Supreme Court and leave was granted to consider the question being of public importance but decision of the Supreme Court could not be traced in the subsequent volume of P.L.D. though the leave order in that case was published in the case of Md. Isha Khan Vs. Md. Janan Khan 1968 SC M.R. 1313.

  1. The learned Judge then observed that there was no evidence of dispute and repelled the contention that the compromise was in fact for exchange of property between the parties. It was concluded:

“It appears that the plaintiffs had to pay a price for withdrawal of some non-compoundable criminal case hanging over their heads and that the suit lands, of which they were the undisputed owners, were brought in the bargain. Such agreements, without there being any previous history of bona fide civil disputes cannot but be hit by section 23 of the Contract Act'.

Notwithstanding the above observation the learned Judge noticed that a kabala was also executed by the defendants in favour of the plaintiffs and observed that the defendant themselves will be within their right to cancel the document obtained by the plaintiff No. 1 and his brother for the same reason. In this view of the matter the rule was discharged and the judgement and decree of the learned Additional District Judge were affirmed.

  1. Leave was granted to consider the question whether the Salishnama Ext. 1 was correctly construed by the High Court Division to show that the kabala in question were hit by the provision of section 23 of the Contract Act.

  2. It will be noticed that the plaintiff executed 4 kabalas in favour of the defendants and the defendants executed one kabla in favour of the plaintiff and his brother. The terms of the kabala have been mentioned above whereby the plaintiff had to execute the kabala for 5 bighas and odd land out of the 7 bighas land purchased from Heji Mohan and Abdul Hoque whereas the defendants had to execute a kabala for 1 bigha 2 kathas in favour of the plaintiff which is a part of their homestead land. Mr. Shaukat Ali Khan, learned Counsel argued that the terms show that this was mere exchange of properties between the parties and in consideration of the dispute over the land which originally belonged to Haji Mohan and Abdul Hoque. It is true that a Criminal proceeding under section 145 Cr.P.C. was pending being Criminal Case No. 159M of 1972 wherein proceedings were started and receiver was appointed by the Magistrate. That was a case of 1972 whereas the kobalas were executed on 24.5.73. It is argued that the court of appeal below and the High Court Division have overlooked these aspects of the case and concentrated merely on a point namely whether any compoundable offence was compounded which was never agitated before a Criminal Court.

  3. This contention has substance. In the Criminal Court there were two cases pending namely (1) Criminal Case No. 207 of 1973 wherein the defendant Joynal Abedin filed a Criminal case against the plaintiff under sections 380 /148 /448 and the second case being Criminal case No. 406 of 1963 under sections 143 /379 B.P.C. against the plaintiff. It is true that both the cases were withdrawn by the prosecutor namely the defendant on the very day when the kabalas were executed and in both the cases the plaintiff accused were discharged by the learned Magistrate under section 253(2) Cr. P.C. Having secured this discharge order the plaintiff now come round to say that the kabala executed by him were hit by section 23 of the Contract Act as void. Nothing was said as to the effect of the kabala that was executed by the defendant in favour of the plaintiff surrendering 1 bigha 2 kathas of his homestead land.

  4. Section 23 of Contract Act is in the following terms:

  1. What considerations and objects are lawful and what not-The consideration or object of an agreements is lawful, unless-

it is forbidden by law; of; or

is of such a nature that, if permitted, it would defeat the provisions of any law:

or

is fraudulent: or involves or implies injury to the person or property of another; or

the Court regards it as immoral or opposed to public policy.

In each of these cases the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.

The appellate Court below or the High Court Division did not specify how the kabala are hit and by which of the provision. Presumably the view was taken that such agreement is forbidden by law or is of such a nature that, if permitted, it would defeat the provision of any law. The trial court noticed that no evidence was given nor any witness was examined to show that the consideration of the disputed kabala was a compounding of a non-compoundable case.

  1. Section 345 Cr.P.C. lays down which of the offences should be compounded and again it is divided into two parts. Some offence can be compounded by the parties themselves and some offence can be compounded with permission of the Court below where any prosecution for such offence is pending. The courts below did not specify which of the offence was non-compounding. Again in the Criminal court this question was not raised because the plaintiffs are the accused persons and it was to their advantage not to raise the point, inasmuch as they secured their discharge from the Criminal Court. Had there been any non-compoundable offence that would have attracted the attention of the Criminal Court but since the Criminal Court passed the order of discharge obviously took the view that there was no non-compounding offence, because sub-section (7) says that no offence can be compounded except as provided by this section.

  2. Next if there be any offence which can be compounded only with permission of the court then legitimate inference can be drawn that the Court had permitted for the compounding of such offence.

  3. Our Criminal Administration of Justice encourages the compromise of certain disputes and even certain offence can be compounded as provided by section 345 Cr. P.C. Salish or compromise had been in this sub-continent from time immemorial.

In the Conciliation Court Ordinance, 1961, section 3 provides for the certain offences referable to the Conciliation Court and ‘no civil or Criminal court shall have jurisdiction to try any such case and even cases falling under part II of the Schedule may be so referred “if all the parties thereto agree to such a reference”. Sub-section (2) provides for that in some matters Conciliation Court will have no jurisdiction such as the case in which interest of minor is involved or in case of arbitration or the case against the Government or public Organisation and clause (d) adds:

cases which according to the customary law of a community are referable to a community panchayat.

This is a legislative recognition of a settlement of a dispute by a community panchayat and sub-section (3) further provides that the Government may add to the Schedule any class of cases relating to such dispute between private parties as are of “a local nature and are capable of settlement of compromise” The whole emphasis is on settlement of dispute either by Panchayat or by compromise. The same trend was maintained after repeal of the Conciliation Court by the Village Court Ordinance, 1976 and in the Schedule section 143 figures Part I and Sections 379, 380 and 381 were also added the list under certain circumstances to be decided by the Village Court. The decision of the village Court either by the unanimous or by majority opinion shall be enforceable and section 14 bars the appearance of a legal practitioner. The composition of the village Court provides that two members to be nominated by each of the parties to the dispute. Thus the legislative Scheme seems to be that those offences are to be tried by Village Court and compensation can be awarded by such Court.

  1. The pattern is clear, namely that the law encourages settlement of dispute either by Panchayat or by arbitration or by way of compromise and if it is a Criminal offences, the offence can be compounded within the limit of section 345 Cr. P.C. The category of offence compoundable have been enlarged by the Law Reforms Ordinance and at the moment all the offences which are subject matter of Criminal Case No. 207 of 1973, 400 of 1973 e.g. offence under sections 380 /148 /448/ 143 and 379 of the Penal Code are compoundable. The main ground of the judgment of the appellate Court and the High Court Division is that some of the offences are non-compoundable offence although unfortunately none of Courts below have specified which of the offences is non-compoundable. In so far as the case under section 145 Cr.P.C. is concerned that was not a case involving any Criminal charge. In Jagadish Vs. Kausillah Devi, AIR 1947 All 317 this point was considered and it was observed :

It could, in no sense be contrary to public policy that persons concerned in a dispute about land should settle their dispute so as to avoid any future danger of a breach of the peace. The provisions of section 145 deal with an inquiry primarily into possession over property in dispute and they are of judicial nature. There is nothing in them which should vitiate an agreement to settle the disputes between the parties.

In the present case the case under section 145 Cr. P.C. was started in 1972 and admittedly the dispute was concerning the land which originally belonged to Haji and Abdul Hoque. Such dispute is compoundable and as a matter of fact the leaned Magistrate dropped the proceeding because he was satisfied that there was no apprehension of breach of peace.

  1. The defendant took the stand that the village headman and the elders pursuaded them to have compromise settling all the disputes which resulted in the Salishnama Ext. F. Accordingly the Criminal Cases were withdrawn.

  2. In one of the oldest cases reported in (Emperor V. Lilaram and others 10 Crl. L.J. page 228) a petition was filed in Court “that a reconciliation had been effected by the intervention of some respectable persons, and the matter had been compromised.” The Magistrate refused to accept the compromise and referred to Sadar Court Building in Criminal Report No. 15 of 1894 whereupon the Court of Judicial Commissioner observed :

We are of the opinion however, the Court is not concerned to inquire into the nature or value of the consideration, and if, as in the present case, the complainant considers that his grievance is redressed, by the mere fact of respectable persons intervening, though he has received no money payment or even a direct apology from accused, he is, nevertheless, at full liberty to compound the prosecution.

The High Court Division noticed-Purnendu Kumar Das Vs. Hiran Kumar Das. 21 D.L.R. Dhaka 918 Mr. Shaukat Ali Khan does not contest the proposition laid in this decision. He submits that he facts of that case and the present case are completely different because here by the Salishnama parties exchanged their properties with each other.

The High Court Division noticed that it is well settled that it is against the public policy to make a trade or felony or compromise of an offence which is not compoundable in law and that an agreement to that effect is void. As proposition of law it is not disputed but the Supreme Court of India in the case of Ouseph Poulo Vs. Catholic Union Bank, 1965 (SC) page 166 observed:

Where the validity of an agreement is impeached on the ground that it is opposed to public policy under section 23 of the Act, the party settling up the plea must be called upon to prove that plea by clear and static factory evidence.”

it was observed :

Reliance on a mere sequence of events may tend to obliterate the real difference between the motive for the agreement and the consideration for it. Did the parties offer to give security and execute the documents in consideration for the withdrawal of the Criminal complaint by the Bank ? That is the question which has to be decided in the present appeals, and in proving their case, the plaintiffs are expected to lead satisfactory evidences and in our opinion, the High Court is, on the whole, right when it came to the conclusion, that the evidences led by the plaintiffs is far from satisfactory. Therefore, we are satisfied that the view taken by the High Court is right and con not be reversed.

In the present case the trial court noticed as under:

The plaintiffs have not examined any witness to give evidence that the consideration of the disputed kabalas was the compounding of a non-compoundable case.

In the absence of such evidence it does not appear clearly as to how the appellate Court below and the High Court Division took the view that the kabalas were hit by section 23 of the Contract Act. As has been noticed already in the Criminal Court this issue was not made and the Criminal Court did not take any exception to the petition for withdrawal of the complaint case. Understandably the accused plaintiff would not take any exception because by the withdrawal of the prosecution he had secured his discharge. Now in the second round he has assailed the kabalas by which he had to forgo his over 5 bighas and odd quantity of land which originally belonged to Haji Md. Mohan and Abdul Hoque. He wanted to enrich himself by assailing these kabalas without, however, saying a word as to the kabala given by the defendant wherein 1 bigha 2 kathas was surrendered in his favour. A person in pari delicto can not seek any relief before any Court of law. The complainant having secured his discharge in pursuance of the Salish which was accepted by both the parties had thought it fit to disown the Salishnama. Law does not encourage a person to take advantage of his own wrong. The Trial Court rightly dismissed the suit.

  1. Withdrawal and composition are two distinct concepts. Withdrawal is the act of complainant whereas the composition of an offence requires the co-operation of both parties. Whether a petition is one for withdrawal or compromise, is to be judged from the fact of each case. In AIR 1923 All 474 the complainant wrote out: “This is to say that Mr. John came to me and offered an unconditional apology I beg to withdraw the case against him,” the document was held to mean that the offence was compounded. Though the compounding of an offence signifies that the person against whom the offence has been committed has received some gratification to act as an inducement for his desiring to abstain from prosecution, even an apology may be sufficient consideration for a compromise. Here the parties exchanged their land at the intervention of the village elders and they have settled up all their differences, Such compromises are allowed by Courts and the Court is not concerned with the natures or value of the consideration. (AIR 1950) All 86).

  2. The present case is on all fours with the case of Moulvi Mohammad Ismail Vs. Amad Ali, 20 C.W.N 948 where the plaintiff sued for a declaration that certain documents executed by him in favour of the defendants were invalid and void for want of consideration. The trial Court found that there was no coercion exercised upon the plaintiff and the suit was dismissed. On appeal, the plaintiff-appellant contended that the contracts were opposed to public policy as they were entered into for compounding a Criminal Case. The learned Subordinate Judge noticed that the plaintiff had been summoned under section 235 of the Penal Code and such offence is compoundable with the permission of the Court and the Magistrate gave permission to compound the case. Accordingly, the appeal was dismissed. In Second Appeal the Calcutta High Court dismissed the appeal by observing “the parties entered into a compromise for settling their long standing disputes by executing the documents and payment of money in case,” and the matter was compounded with the leave of the Court. Precisely that is the position here and therefore the plaintiff con not make a grievance to invalidate the documents executed by him in pursuance of a compromise. In the result, therefore this appeal is allowed, Judgment of the High Court Division and appellate Court below are set aside and that of the trial court dismissing the suit is restored. There will be no order as to costs.

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