Appellate Division Cases
(Civil)
PARTIES
Abdul Wadud Khan ……………………..Appellant
-VS-
Anwaruzzaman and another …………….Respondents
JUSTICE
Syed J.R. Mudassir Husain CJ
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
JUDGEMENT DATE: 15th February 2007
The Code of Civil Procedure. Order 6. Rule
16, Section 115(1)
36 DLR(AD) 253 and 9 BLD (HCD) 380
Praying fof declaration that he became owner in possession of the suit land by dint of an oral gift made on 08.03.1984 by the defendant No.l in his favour…………..(2)
The subsequent written statement filed on 30.1.1997 as it was completely contradictory to the stand taken in the earlier written statement filed on 30.03.1997. It was contended that defendant No.l could have filed an application under Order 6 Rule 5 of the Code of Civil Procedure for filing further and better statement or pray for an amendment of the written statement under Order 6 Rule 17 of the Code but instead the defendant could not file a separate and independent written statement with the averments which were contradictory to the earlier written statement. Therefore the subsequent written statement was liable to be struck off……….(3)
(Bangla)
Civil Appeal No. 318 of 2001 (From the judgment and order dated 06.07.2000 passed by the High Court Division in Civil Revision No. 2900 of 1999.)
A.J. Mohammad AH, Senior Advocate, instructed by Md Aftab Hossain, Advocateon-Record ……………………. Fot the Appellant
Md. Nawab AH, Advocate-on-Record ………………. For Respondent No. 1
Bivas Chandra Biswas, Advocate-on-Record………………..For Respondent No.2
JUDGMENT
1. Amirul Kabir Chowdhury J. This appeal by leave at the instance of the plaintiff arises out of the judgment and order of the High Court Division dated 06.07.2000 in Civil Revision No. 2900 of 1999 discharging the rule. The said civil revision was preferred by the plaintiff challenging the order of the learned Subordinate Judge, 4 m Court. Dhaka in Title Suit No. 222 of 1996 rejecting the application of the plaintiff under Order 6 Rule 16 of the Code of Civil Procedure for striking out the second written statement filed by the defendant respondent No.l on 30 October 1997 in Title Suit No.222 of 1996.
2. The plaintiff filed the above suit praying for declaration that he became owner in possession of the suit land by dint of an oral gift made on 08.03.1984 by’the defendant No.T in his favour. The defendant filed written statement on 30.03.1997 making formal denial of the statements made by the plaintiff in paragraphs 4,5 and 6 but admitted the oral gift made on 08.03.1984, the basis of the claim of the plaintiff. Subsequently on 30.10.1997 the defendant No.l filed another written statement completely denying the oral gift stating inter alia that the plaintiff being an ejectable tenant, was doing business in one small shop situated in the southern side of the one storied building of the defendant No.l. The plaintiff on many occasions defaulted in paying the monthly rent. The plaintiff, on the pretext that he had some problem with the income tax authority and in order to solve the same he required an affidavit from defendant No.l on the basis of which he would get income tax benefit and therefore requested the defendant No.l to put his signature on some stamp papers. In good faith, the defendant No.l signed the same. The defendant No.l afterwards reminded the plaintiff to return the said affidavit but the plaintiff avoided. It was further stated in the subsequent written statement that the defendant No.l did not sign the said affivavit in presence of any Notary Public and merely signed the same sitting in a shop in the evening hours, and he never gifted the property to the plaintiff and the possession of the suit property was also not handed over to the plaintiff as alleged. The defendant No.l, having three sons and two daughters was maintaining his family with great difficulty and so the question of making such gift did not arise.
3. The plaintiff filed an application under Order 6 Rule 16 of the Code of Civil Procedure praying for striking out the subsequent written statement filed on 30.1.1997 as it was completely contradictory to the stand taken in the earlier written statement filed on
30.03.1997. It was contended that defendant No.l could have filed an application under
Order 6 Rule 5 of the Code of Civil Procedure for filing further and better statement or pray for an amendment of the written statement under Order 6 Rule 17 of the Code but instead the defendant could not file a separate and independent written statement with the averments which were contradictory to the earlier written statement. Therefore the subsequent written statement was liable to be struck off.
4. The defendant No.l submitted that the amendment of the written statement could be made at any time to bring out the real issues between the parties and for ends of justice.
5. The trial court after hearing the parties rejected the application of the plaintiff and cancelled earlier written statement filed by defendant No. 1 on 30.03.1997.
6. The High Court Division was moved against the aforesaid order under Section H5(l) of the Code of Civil Procedure. The rule was discharged as already mentioned above.
7. Hence is this appeal.
8. Leave was granted to consider the submissions, inter-alia. that the very basis of order of the learned trial court “(Bangla)” being erroneous of fact. High Court Division erred in law in affirming the same without applying the law as to the bar of making totally different and inconsistent pleading.
9. In support of the appeal Mr. A.J. Mohammad AH, learned Counsel reiterates the submissions made earlier and contends further that the High Court Division committed error in discharging the rule inasmuch as there was no material before the learned Court to strike out the written statement dated 30 March 1997 nor it was considered unnecessary or otherwise tending to prejudice or embarrass or delay the fair trial of the suit. Moreso in the subsequent application filed by the defendant for accepting the second written statement dated 30 October 1997 the defendant did not offer any legal ground on the basis of which the learned Subordinate Judge passed the impugned order.
10. Mr. Md. Nawab Ali and Mr. Bivas Chandra Biswas, learned Advocates-on-Record represented the respondent Nos. 1 and 2 respectively and opposed the appeal.
11. We have considered the submissions and perused the materials on record.
12. It appears that the plaintiff appellant instituted the suit on 09.11.1996. The suit was fixed for return of summons and acknowledgement receipt by 30 November 1996 and on 30 November 1996 the service return was not received but it appears that the learned
Judge passed the following order:”(Bangla)”
13. Thereafter on 30 March 1997 the following order was passed : (Bangla)
14. It appears from order Nos.5 and 6 dated 29.05.1997 and 29.06.1997 respectively that there was no attendance report on behalf of the defendant and as such the suit was fixed for ex-parte disposal by order No. 7 dated 14 August 1997.
15. On 30 October 1997 the defendant respondent No.l appears to have filed a written statement and an application for taking the suit off from the list of peremptory hearing.
The written statement being accepted the suit was fixed for framing issues on 16.11.1997.
16. Be that as it may, on 14.10.1998 the suit was fixed for peremptory hearing on 09.02.1998 (sic) 1999. It appears that on the same date the plaintiff filed an application under Order 6 Rule 16 of the Code of Civil Procedure praying to reject the written statement of the defendant dated 30 October 1997. The defendant filed an objection against the aforesaid application of the plaintiff. The matter was heard on 04.08.1999. By order No. 28 dated 10.08.1999 the application of the plaintiff for rejecting the written statement of the defendant dated 30 October 1997 was rejected, thereby the written statement 30 March 1997 in the name of the defendant became nonest.
17. From the written objection filed by the defendant No.l dated 27 October 1998 against the plaintiffs petition for rejecting the written statement of the defendant dated 30 October 1997 the defendant supported by affidavit stated, inter-alia,: “6. That the statements made in paragraph No.2 of the petition to the effect that “that the defendant entered appearance and filed written statement on 30.03.1997 and in the said written statement dated 30.03.1997 in paragraph 3,5 and 6 the defendant admitted the plaintiff’s case and the said written statement was accepted by this learned court on 30.03.1997” are all false, concocted, motivated and fabricated and hence this defendant emphatically denied. The defendant did not file any written statement on 30.03.1997. The plaintiff collusively managed some papers and the plaintiff himself filed the said written statement without the knowledge of the defendant. 7. That the statements made in paragraph No.3 of the petition to the effect that “thereafter the defendant on 30.10.1997 by suppressing the filing of the said written statement filed another written statement making a new and complete different case, made out in the written statement dated 30.03.1997 in violation of Order 6, Rule 7 of the Code of Civil Procedure” are all false, concocted and motivated and hence this defendant strongly denied.”
18. We have also perused the first written statement dated 30 March 1997 the relevant portion of which is quoted as under: (Bangla)
19. The aveiTnenls mentioned above in the aforesaid written statement “contesting’ the suit speak for itself. Be that as it may, it appears that the learned Subordinate Judge after considering the facts and circumstances and materials on record passed the order dated
10 August 1999. He considered the application of the plaintiff under Order 6 Rule 16 of the Code and also the written objection of the defendant and after giving due consideration to the materials on record passed the order in question accepting the second written statement dated 30 October 1997 filed by the defendant respondent. It thus appears that the trial court did not commit any illegality in exercising its jurisdiction in passing the said order.
20. We have also perused the impugned judgment of the High Court Division. It appears that the High Court Division observed, inter-alia,: “It appears that the present suit was
filed on 09.11.1996 and the alleged gift was made on 08.03.1984 and in their written statement the copy of which was produced before us by the learned Advocate of the opposite party No. 1, it was stated that deed of sale was executed and registered in their favour by the defendant No.l on 30.08.1990, long before the suit. Considering the principle as laid down in the above decision, specially as the decision reported 36 DLR (AD) 253 and 9 BLD(HCD) 380. we are of the view that the defendant No.l in their subsequent written statement and also in the written objection filed against the application under order 6. rule 16 C.P.C. filed by the plaintiff explained the fact and circumstances for submitting the written statement dated 30.10.1997 and accordingly we are of the view that the learned Judge did not commit any error of law in passing the impugned order. So we are not included to interfere with the impugned order.”
21. We have considered the materials on record and the submissions of the learned Counsel.
22. It appears that the High Court Division in consideration of the materials on record and
the law arrived at a correct decision and took a correct view in the matter and as such it does not call for any interference.
23. In view of the discussion made above we do not find any substance in this appeal.
24. The appeal is therefore, dismissed.
25. The parties do bear their respective costs.
Ed.
Source: IV ADC (2007), 271