Order VI rule I and Order XII rule 6-
Admission, ambit of-Decree on admissionWritten objection filed in an interlocutory matter would not be a part of the pleading of the parties in the suit but if there is an admission in the written objection it would be regarded as an admission. The expression "or otherwise" under rule 6 of Order. XII would empower the Court to see the admission made elsewhere in the proceeding during the trial and should not be confined only to written statement. The decree, as passed on admission made otherwise than in written statement, is in accordance with law and need not be interfered with in exercise of revisional jurisdiction.
A Elahee & Co vs MM Aziz 44 DLR 131.
Order VI rules I & 2 and Order VII rule I-
The purpose of pleadings is to pinpoint the matters of controversy between the contending parties for enabling them to meet their respective claims. If at the trial the plaintiff fails to prove some of his allegations, that does not necessarily mean that the suit shall fail. The fate of the suit depends on the overall evidence and materials on record.
Sonali Bank vs Hare Krishna Das and others 49 DLR 282.
Order VI rule 2-
It is the substance and not the form of the plaint which is to be looked and considered and Mufussil Court's pleadings are to be construed liberally.
Zamir Uddin Ahmed vs Jiaul Huq and others 49 DLR 622.
Order VI rule 2, Order XVIII rule 17-
The Code has given enabling power to the Court to recall a witness. All the evidence and documents under the possession of the plaintiff to be relied upon at the time of hearing of the suit need not be mentioned in the pleading.
Registrar (Deputy Secretary) vs Sahrab Jan and others 48 DLR 214.
Order VI rule 5-
Purpose of filing further and better statement is to elucidate the pleadings and not to amend the same by adding new claim or defence which was not in pleading.
Fatick Chandra Dey and others vs Dipok Kumar Dey and others 556.
Order VI rule 7-
The trial Court allowed the plaintiff to introduce a new story (in his deposition and by production of documents) without amending the plaint itself-Not permissible in law.
Ranjit Kumar Rakshit vs Sudhir Kumar Chowdhury 38 DLR 39.
Order VI rule 7-
New plea-The court will not allow either party to make any departure from the earlier pleadings set forth in the plaint or written statement.
Bangladesh vs Md Aslam 44 DLR89.
Order VI rule 7-
The departure in the evidence from the plaint has not been of such a dimension that the defendants were unfairly taken by surprise. Both the parties had all opportunities to lay before the court all their evidence respecting title and possession of the suit land. In such circumstances the operation of Order VI rule 7 of the Code will not come in.
Kochi Mia @ Khocha Mia vs Suruj Mia being dead his heirs Md Fazlur Rahman and others 51 DLR (AD) 57.
Order VI rules 14 & 17-
Defect or irregularity in the matter of signing the plaint and the verification to the plaint can be cured by amendment of the plaint.
Doon Valley Rice Limited vs MV Yue Yang and others 48 DLR 531.
Order VI rule 14 & Order XIX rule 1-
Companies are not exclusively governed by the provisions of Order XIX rule 1 in the matter of signature on plaint. They are also governed by the provisions of Order VI rule 14. A company has alternative choice. It can follow Order XIX rule 1 or Order VI rule 14. It cannot orally authorise a person to sign a plaint-it is governed by its Articles of Association in such matters. It is not condition of verification of plaint that it should be done by the holder of a power of attorney.
Anath Bandhu Guha & Sons Ltd vs Babu Sudhangshu Shekhar Halder 42 DLR (AD) 244.
Order VI rule 17-
Amendment of pleadings may not be allowed as would alter the nature of suit, etc-However in certain circumstances the court may allow an amendment in what is not generally done.
Md Nurul Islam vs Abdul Malek 38 DLR (AD) 115.
Order VI rule 17-
0riginal prayer in the plaint was for declaration of the partition deed as null and void and fraudulent. By an amendment prayer later on it sought for cancellation of the deed as being fraudulent and void.
Held: Amendment prayer should be allowed as cancellation of the document is a natural sequence when it is found to be product of fraud-Question of limitation not relevant.
Jarina Khatun vs Pulin Chandra Das 37 DLR (AD) 67.
Order VI rule 17-
Question arose as to whether amendment of pre-emption application introducing a new claim for pre-emption on the basis of contiguous ownership of the disputed lands would materially alter the nature and character of the proceeding, particularly when it is barred by limitation.
Held: As a rule no amendment is allowed where its effect will take away any legal right, which might have accrued by lapse of time. Here the transferee has failed to show what legal right had accrued to him which will be washed away by allowing the amendment-Then again as a rule the Court refused an amendment if the amendment introduces a totally new and inconsistent case which may require further evidence to be adduced by the opponent-In this case no legal right accrued to the respondent except the right of rateable pre-emption-The amendment is allowedand it will relate back to the date of the institution of the pre-emption case.
Amendment pleadings under Order VI, rule 17 CPC-Special limitation prescribed under section 96 of the State Acquisition and Tenancy Act-The question of limitation may arise in two cases (i) whether the claim to be included was barred on the date of the institution of the suit, (ii) whether the claim is barred on the date of the prayer for amendment-In this case the amendment will relate back to the date of the institution of the case.
Sree Shushil Ranjan Dutta vs Al-Haj Moulvi Idris Mia 42 DLR (AD) I I 0.
Order VI rule 17-
Amendment of pleading at the appellate stage in the interest of justice and for determination of the real controversy between the parties permissible.
Bimal Kanti Biswas vs Custodian of Enemy Property 42 DLR 227.
Order VI rule 17-
Amendment of pleading -Mere change in the relief does not change the nature of the suit.
Nuruddin Ahmed vs Zafarullah Siddique 42 DLR 246.
Order VI rule 17-
Amendment of written statement-The proposed amendment will not change the fundamental character of the defence case. The Court fell into error of law occasioning failure of justice in rejecting the application for amendment.
Md Naiyum vs Rahima Khatun 42 DLR 523.
Order VI rule 17-
Courts are always inclined to allow amendment so as to enable the parties to bring all points relating to a dispute between the parties before the Court in order to avoid multiplicity of proceedings.
Sahimon Bew al vs Safiruddin Mohammad 38 DLR 265.
Order VI rule 17-
Amendment of plaint can be made 'at any stage of the proceeding' which includes proceeding even at the appellate stage.
MA Jahangir vs Abdul Malek 41 DLR 389.
Order VI rule 17-
Merely because an amendment is new from what has been stated in the plaint, it cannot be a ground for refusal of amendment of the plaint unless it changes the character of the suit.
MA Jahangir vs Abdul Malek 41 DLR 389.
Order VI rule 17-
Amendment of the election petition made a complete change in the nature and character of the election petition.
Zulfiquar Ali Bhutto vs Bangladesh-11 DLR 379.
Order VI rule 17-
Election Tribunal has no power to allow amendment of the election petition so as to relate back to the date of filing of the election petition. Thus although the Election Tribunal has the limited jurisdiction to allow amendment of the election petition, it has no power to allow any amendment, so as to relate back to the date of filing of the election petition. It is so because subrule ( 1) of Rule 44 prescribed the limitation of 30 days next after the publication of the result in the official Gazette to file an election petition and sub-rule (5) specifically provides that an election petition shall set forth the ground on which the petition is fixed and the relief sought. In other words, the ground for the election petition and the relief sought must be stated within the period of limitation.
Zulfiquar Ali Bhutto vs Bangladesh 41 DLR 379.
Order VI rule 17-
Amendment of plaint allowed by the trial Court as a matter of course and without satisfying itself whether the same is necessary for determining the controversy between the parties is to be discarded.
Ismail Mohammad vs Motasim Ali Chowdhury 45 DLR 123.
Order VI rule 17-
Amendment of pleadings -Plaintiff filed an application for amendment of the plaint that the defendant entered into the property in 1956. The application ought to have been allowed as it could have been disposed of on the available evidence on record and would not have prejudiced the defendant in any manner.
Abdur Rabbani vs Aminul Haque Sowdagar 43 DLR (AD) 19.
Order VI rule 17-
The defendant traces his possession in the property since 1948. Documentary evidence of payment of rent starts from 1951. With the passage of time, question of limitation and accrual of vested rights step in. The Court correctly rejected the application for amendment of plaint.
Abdur Rabbani vs Aminul Haque Sowdagar 43 DLR (AD) 19.
Order VI rule 17-
Amendment of plaintExtent of amendment that can be allowed-by the proposed amendment the plaintiff seeks to introduce a new case of acquisition of his title to the suit property by altering his earlier pleading. A plaintiff can set up as many roots of title as possible and they may be even conflicting and inconsistent.
Thus the major ground as aforesaid of the trial Court for refusing the amendment is not tenable in law. So also the other two minor grounds as the amendment was proposed before the trial and its obstruction to normal rule of disposal can be compensated by costs to the other side. Plaintiff's application dated 2.8.92 seeking amendment of the plaint is allowed on condition that the plaintiff should pay a cost of Tk. 2,000.00 to the contesting defendants within two months from the date of receipt of this order by the trial Court, in default the application shall stand rejected.
Samarendra Nath Roy Chowdhury vs Abdul Jabbar 46 DLR 273.
Order VI rule 17-
Amendment of pleading-Introduction of a relevant fact by way of amendment for determining the real question in controversy should not be refused.
Moyezuddin Mondal vs Bena Rani Das 45 DLR 154.
Order VI rule 17-
Amendment of plaintPlea of res judicata- When in a previous suit a party of a subsequent suit was impleaded in his representative capacity as an heir of the original tenant and it was not open to him to raise any defence in his personal capacity he can subsequently raise objection and his hereditary nature in the previous suit does not operate as res judicata. Amendment of the plaint in the subsequent suit to the effect that the decree made in the former suit arising out of revenue sale, wherein the plaintiffs were impleaded in personal capacity, was null and void is proper and just for effective adjudication of issues between the parties.
Kutub Uddin Bhuiyan vs Sakhina Bibi 43 DLR 601.
Order VI rule 17-
Retum of plaint in a matter relating to persons in the service of the Republic-Amendment replacing a cause of action, after it had ceased to exist, by a new cause of action so as to change the nature of the suit and the cause of action will not be allowed, and, if allowed, cannot relate back to the date of filing the suit. Furthermore, the jurisdiction of the civil Court having been vested in the Administrative Tribunal by the promulgation of special statute the jurisdiction of civil Court in respect of Bank employees had been ousted, and in that view of the matter, the plaint was rightly returned by the civil Court for presentation to the proper Tribunal having jurisdiction.
Mansur Ali vs Janata Bank 43 DLR 394.
Order VI rule 17-
Amendment of plaint—Where the plaintiff institutes a suit for permanent injunction and obtains temporary injunction but subsequently he is dispossessed from the suit property, and he then merely seeks amendment of the plaint for restoration of the property under Order XXXIX, rule 2 CPC such amendment cannot be allowed without a prayer for declaration of title and recovery of possession, in as much as, the same will change the nature and character of the suit.
RAJUK vs Mir Nousher Ali 46 DLR 134.
Order VI rule 17-
Amendment-When opportunity for additional written statement not necessary-The amendment was of formal nature changing the name of the plaintiff bank following its de-nationalisation. Normally when an application for amendment of plaint is allowed, the defendant is given a chance to file additional written statement but the amendment being of formal nature the judge has committed no error of law in not giving opportunity for filing additional written statement.
Mozammel Haque vs Uttara Bank 43 DLR 498.
Order VI rule 17-
Amendment replacing a cause of action, after it had ceased to exist, by a new cause of action so as to change the nature of the suit and the cause of action will not be allowed, and if allowed, cannot relate back to the date of filing the suit. Furthermore, the jurisdiction of the civil Court having been vested in the Administrative Tribunal by the promulgation of special statute the jurisdiction of civil Court in respect of Bank employees has been ousted, and in that view of the matter, the plaint was rightly returned by the civil Court for presentation to the proper Tribunal having jurisdiction.
Monsur Ali vs Janata Bank 43 DLR394.
Order VI rule 17-
In the amendment certain specific boundary has been incorporated keeping the other averments of the plaint intact. Such amendment has not changed the character of the plaint.
JN University vs Mujibur Rahman 43 DLR 282.
Order VI rule 17-
Prayer for amendment of pre-emption application by way of addition of parties after the pre-emptors were earlier allowed exemption from such addition. The Assistant Judge does not exercise his discretion in a judicial manner by refusing addition of the same parties, when the pre-emptor appears to have averred that on a wrong advice they prayed for exemption.
Mojibur Rahman Sarker vs Shafiqul Islam 43 DLR 313.
Order VI rule 17-
Amendment of a plaint and amendment of a written statement are not governed by exactly the same principle. The defendant would not be allowed to introduce an alternative and completely different kind of defence which will have the effect of introducing a new controversy between the parties.
Abul Kalam Azad vs Sunhar Ali 46 DLR (AD) 130.
Order VI rule 17-
Before allowing amendment or alteration of the pleading the Court must come to a finding that such amendment or alteration is necessary for determining the real question in controversy. The order of the trial Court passed without such finding suffers from legal infirmity and the matter is sent back for rehearing.
Sri Kirlish Chandra Dev vs Begum Sufia Akhtar 46 DLR 313.
Order VI rule 17-
Amendment of plaint – When it means no substitution of one cause of action for another- The impugned transfer of shares of the plaintiff having taken place during the period of insanity of the plaintiff, it is necessary to dispose of the same within the framework of the suit for declaration. Insanity being the foundation of the suit plaintiff can legitimately combine in one suit all the alleged illegalities committed by the appellant in the matter of transfer of the shares in question and other properties. This is not substitution of one cause of action for another, but a consolidation of all wrongs allegedly done to the plaintiff.
Afruz Miah vs Al-haj Md Siraj Miah 43 DLR (AD) 89.
Order VI rule 17-
Amendment of plaint – Conflict of decisions-If the plaintiff had to. file separate suits challenging different alienations during the period of his insanity, it will involve proving insanity in each suit which might lead to conflict of decisions. This is least desirable.
Afruz Miah vs Al-haj Md Siraj Miah 43 DLR (AD) 89.
Order VI rule 17-
Amendment of plaint-A corollary to addition of party-the plain tiff added 3 other defendants as parties after filing of the suit and prayed for relief The addition of parties is corollary to the amendment sought for. It in no way changes the complexion of the suit. Afruz Miah vs Al-haj Md Siraj Miah 43 DLR (AD) 89.
Order VI rule 17-
Amendment of plaint – Delay- Appellants having not filed written statement in the suit the delay of 10 months in seeking amendment after the knowledge of transfer of the shares in question is not material as it will not prejudice them in any way.
Afruz Miah vs Al-haj Md Siraj Miah 43 DLR (AD) 89.
Order VI rule 17-
The proposed amendment would settle the question whether during the pendency of the suit the plaintiff was dispossessed or not. This will end all pending controversies between the parties and will not amount to a change in the nature and character of the suit.
Shahajadpur Central Co-operative Bank Ltd vs Majibur Rahman and others 50 DLR (AD) 86.
Order VI rule 17-
In the appellate Court parties filed a solenama on the basis of which the suit was remitted to the trial Court for the said purpose-The plaintiffs could not be permitted to open the new issue (by amendment) for decision in the suit after having already entered into compromise admitting the claim of the appellants.
Sunil Chandra Mondal and others vs Narayan Chandra Shil & others 50 DLR (AD) 148.
Order VI rule 17-
Instead of furthering the cause of justice by allowing the plaintiff-appellant a full opportunity to place his case against all the parties involved by stating all the facts that he wants to allege against them and by seeking all possible remedies against them, the High Court Division has given a queer look at the plaintiff and has found him lacking in bonafides in whatever he does. After all, he is seeking full justice from a Court oflaw and he wanted to bring all the parties involved in the original and subsequent transactions. Why should anyone find a malafide motive in trying to do just that, is beyond our comprehension.
Khaledur Reza Chowdhury (Md) vs Saleha Begum and others 48 DLR (AD) 209.
Order VI rule 17-
The proposed amendment introducing new facts and subsequent cause of action different from those made in the plaint if allowed condoning the delay will change the nature and character of the suit. Amendment was therefore rightly refused.
Abdul Wadud Contractor and another vs Nazir Ahmed and others 48 DLR (AD) 120.
Order VI rule 17-
In a suit for ejectment of licensees the prayer for declaration of plaintiffs title is rather necessary to constitute the suit in a complete legal form and for final adjudication of the matter in dispute. The amendment for such a declaration is merely an additional relief in proper perspective and necessary for appropriate relief.
Syed Monirul Huda Chowdhury vs Fouzia Chowdhury and others 47 DLR JO.
Order VI rule 17-
Court can take into account subsequent event necessitating amendment by· addition of new relief that may be allowed to do complete justice.
Nazrul Islam Majumder (Md) vs Tahamina Akhtar alias Nahid and another 47 DLR 235.
Order VI rule 17-
Mere delay in filing the application for amendment of the plaint cannot be a ground to hold that the application for · amendment is malafide and the applicant is not entitled to the relief prayed for.
Abdus Salam vs Karban Ali and another 48 DLR 372.
Order VI rule 17-
The Court is directed to hear afresh the amendment application and the objection thereto as the impugned order allowing amendment of plaint does not show it was done on proper consideration of the same.
Begum and Company Ltd vs Rupali Bank and others 48 DLR 23.
Order VI rule 17-
Once an amendment of the plaint is allowed the amendment will relate back to the date of the institution of the suit.
Doon Valley Rice Limited vs MV Yue Yang and others 48 DLR 531.
Order VI rule 17-
Law does not impose any bar on the defendant to claim as many roots to his title as he wants and they may even be conflicting to each other cannot be grounds for rejecting an application for amendment.
Tohfa Khatun and others vs Moulavi Mukhilisur Rahman and others 49 DLR 315.
Order VI rule 17-
A consideration whether an amendment would have the effect of getting out of an admission of a party in his pleadings to the prejudice of the contesting party is absolutely irrelevant.
Tohfa Khatun and others vs Moulavi Mukhilisur Rahman and others 49 DLR 315.
Order VI rule 17-
Amendment of plaint should not be refused unless {a) the plaintiffs suit is wholly displaced by amendment {b) the amendment takes away right accrued by lapse of time { c) the amendment introduces a different, new and inconsistent case and the amendment converts the suit into a different and inconsistent character.
Norendra Chandra Dash and others vs Md Solaiman Chowdhury & ors 51 DLR 81.
Order VI rule 17-
A party is expected to raise any dispute of the nature in the appeal instead of rushing to this court thereby delaying disposal of the election petition.
Nazem Uddin vs Election Tribunal and others 52 DLR 189.
Order VI rule 17-
By amendment for the 3rd time the plaintiff sought to show his purchased land to be 0.1125 acres. But there was no necessity of allowing such amendment to resolve whether the defendant had dispossessed the plaintiff from the suit land, which the plaintiff by way of 2nd amendment claimed to be 0.03 acres out of his purchased land.
Motasim Ali Chowdhury vs Md Ismail 53 DLR (AD) 74.
Order VI rule 17-
Amendment only in the prayer portion of the plaint following direction for taking fresh evidence in order to prove 'Salishnama', the basis of plaintiff's clai_m calls for no interference.
Abdul Khaleque Gazi and others vs Abdul Aziz Mollah and others 53 DLR (AD) 82.
Order VI rule 17-
If the application is found to be fit to allow the plaintiffs to add the prayer for confirmation of possession on payment of proper court fees then it can also allow the defendants to file additional written statement. There may then be a necessity for additional evidence to be adduced by the parties for determining the real question in controversy.
Jarina Khatun & others vs Gani Howlader & others 53 DLR 53.
Order VI rule 17-
If the proposed amendment is allowed, the amendment will go back to the time of institution of the suit, thereby, giving a new life to the time-barred claim of the plaintiff, depriving the opposite party of a valuable legal right accrued to them by lapse of time. Such a course is clearly unjust.
Gold Topps Co Hong Kong and others vs TCB and another 53 DLR 280.
Order VI rule 17-
An application for amendment of the plaint should not be rejected on the ground that the preliminary decree has already been drawn up, and that re-opening of the suit and adducing further evidence will cause inordinate delay in disposal and hardship to the parties.
Hanif Ali (Md) vs Hajera Khatun and others 55 DLR 17.
Order VI rule 17-
Unnecessary parties and prayers may be struck out by the court from an election petition by an amendment.
Idrish Ali Bhuiyan (Md) vs Dr Alauddin Ahmed and ors 55 DLR 19.
Order VI rule 17-
An amendment may be just but cannot be allowed if it is not necessary for decision in the suit.
Bangladesh Shipping Lines Ltd vs Commissioner of Customs, Chittagong and others 55 DLR 166.
Order VI rule 17-
Amendment of plaint seeking to convert the suit of one character into another and to substitute one distinct cause of action into another depriving the other party of his right accrued to him by lapse of time cannot be allowed.
Government of Bangladesh and another vs Shafi A Chowdhury and another 55 DLR 228.
Order VI rule 17 and section 151-
Amendment of pleadings-Introduction of alternative defence on the ground of hardship-A completely different defence-Contract even if subsisting can still be avoided on this ground.
It is found that this amendment has been introduced so that in the event of the court's finding that the contract is subsisting, the defendant-petitioner can still avoid it on the ground of hardship. In other words, the defendant-petitioner is now seeking to introduce an alternative defence. This defence is now of a completely different kind, both in terms of content and form. It will have the effect of introducing a new controversy between the parties, a controversy which did not exist before. Defendant-petitioner is not precluded from raising alternative defence-introduction of alternative defence at this stage of the suit will compel the plaintiff to arrange production of evidence in rebuttal of a new defence.
The petitioner was not precluded from raising a new alternative defence, provided it did not affect the parties in any appreciable manner. If the amendment was sought to be made before the positive hearing of the suit it could not have been said that the parties were affected thereby but in the facts and circumstances of this case it can legitimately be argued by the plaintiff-opposite party that the introduction of an alternative defence at this stage of the suit will be highly prejudicial to him, for he will also have to arrange production of evidence in rebuttal of a new defence.
Major (Retd) M Afsaruddin vs Kamal Rahman 4 I DLR I 90.
Order VI rule 17 and Order VII rule 10-
The conversion of the suit from one file to another does not involve a change in the nature and character of the suit so as to bar amendment of the plaint. The court had ample jurisdiction to allow the amendment and then to return the amended plaint to the plaintiff for presentation to the proper court.
Nazrul Islam vs Jahanara Hasan 46 DLR I06.
Order VI rule 17 & Order XXII rule 9-
The provisions for amendment of pleading has no bearing in the matter of substitution of legal representative of a deceased party and it is not to be used as subsidiary provision of the Order XXII, Civil Procedure Code as a device to overcome the effect of bar of abatement in the suit.
Saleha Khatun and others vs Fetema Hajura and others 52 DLR 457.