High Court Division
(Civil Revisional Jurisdiction)
Gour Gopal Saha J
Sikder Maqbul Huq J
Gold Topps Co. Hong Kong and others………………… Petitioner
Trading Corporation of Bangladesh and Another…………………Opposite Party
October 30, 2000.
Cases Referred To-
Delwar Hossain Vs. Mvi Abdul Jalil Chowdhury and others, 22 DLR 322; Managing Committee NMC Model High School and others Vs. Obaidur Rahman Chowdhury and others, 31 DLR (AD) 133.
Shamiran Das Gupta with Sucharita Sen Gupta, Advocates—For the Petitioners.
Md. Imam Ali, Advocate—For the Opposite Parties.
Civil Revision No. 4673 of 1991.
Gour Gopal Saha J. – In this Rule the order dated 20-9-88 passed by the Subordinate Judge and Commercial Court, Chittagong in Money Suit No. 22 of 1987 allowing the prayer for amendment of the plaint has been called in question.
2. Short facts relevant for the purpose of the case are that, opposite party No.1 as plaintiff instituted a suit in the 3rd Court of Subordinate Judge and Commercial Court, Chittagong being Money Suit No.11 of 1975, praying for a decree for a sum of Taka 11,64,909.81 with cost of the suit and with interest at the rate of 10% per annum pendente lite till realisation of the decretal dues.
3. The case of the plaintiff, in short, is that it imported a consignment of 8500 metric tonnes equivalent to 1,70,000.00 bags of Portland Cement shipped from the port of Manila per ‘MV Golden King’ under Bill of Lading No. NCB-1 dated 12-12-73 to be delivered at Chittagong Port. The letter of credit was opened through Janata Bank, Dhaka. Defendant No. 1 is the owner of the ship, defendant No. 2 is the charterer and defendant No. 3 acted as the local agent both for defendant Nos. 2 and 3. It has been alleged that defendant No.1 cleared the cargo at Chittagong Port on a declaration as the Ship’s agent under section 55(B) of the Customs Act whereby he undertook personal liability for the damage or loss of goods of the consignment. The consignment was insured with defendant No. 4 for a total sum of Taka 30,29,500.00 covering all risks, the ship arrived at the Outer Anchorage of Chittagong Port on 11-1-74, and it discharged its cargo mainly by lighters upto 1-3-74. Sadat Trading Corporation, was appointed for arranging clearance of the consignment from the Chittagong Port who accordingly, arranged for the clearance but out of the total consignment of 1,70,000.00 bags of cement equivalent to 8500 metric tonnes only 1,05,012.00 bags 5295 metric tonnes of cement were discharged and cleared and the balance 3205 metric tonnes of cement were not delivered to the plaintiffs. Defendant No.1 by letter dated 25-3-74 forwarded a destruction certificate dated 10-3-74 showing 3205 metric tonnes of cement contained in 64088 bags were damaged. Solidified and dropped in the sea, due to perils of the sea and Act of God. The plaintiff this suffered a loss of Taka 11,64,909.81 and hence the suit.
4. The defendant contested the suit by filing a written statement denying all the material allegations of the plaint and contended, inter alia, that the plaintiff filed the suit with false and frivolous allegations and, as such, the suit is liable to be dismissed.
5. On 17-7-88 the plaintiff filed an application praying for amendment of the plaint for incorporating a new claim of damage, which was allegedly left out at the time of drafting the plaint.
6. The defendants contested the aforesaid application for amendment of the plaint for incorporating new claims of damage by filing written objection contending, inter alia, that the new claims of the plaintiff are hopelessly barred by limitation and the proposed amendment would verily change the nature and character of the suit and of the pleadings and, consequently, the proposed amendment cannot be allowed.
7. The learned Subordinate Judge by his order dated 20-9-88 allowed the prayer for amendment of the plaint and fixed 11-11-88 for written statement.
8. Being aggrieved by the aforesaid impugned order dated 20-9-88 the defendant petitioners moved this Court and obtained the present Rule.
9. Mr. Shamiran Das Gupta, the learned Advocate appearing for the defendant-petitioners, submits that the learned Subordinate Judge evidently erred in law in allowing the amendment of the plaint for incorporating new claims for damages which are evidently barred by limitation and the same has occasioned failure of justice. The learned Advocate further submits that the learned Subordinate Judge and Commercial Court erred in law in allowing the unwanted amendment substituting one cause of action by another and the same has also occasioned failure of justice.
10. Mr. Imam Ali, the learned Advocate appearing for the plaintiff-opposite party, submits that the learned Subordinate Judge committed no illegality in allowing amendment to the plaint as it does not change the nature and character of the suit and, as such, the impugned order calls for no interference by this Court exercising revisional power under section 115 of the Code of Civil Procedure.
11. The learned Advocate for the defendant petitioners has placed before us the application for amendment of the plaint under Order 6 rule 17 of the Code of Civil Procedure as well as the impugned order. It is found that the impugned order is not only cryptic and non-speaking in nature but also it is evidently illegal as nowhere it has been spelt out that the proposed amendment is necessary for proper and effective adjudication of the matters in controversy between the contending parties and that such amendment does not change the nature and character of the suit.
12. The learned Advocate appearing for the defendant petitioners has placed before us the case of Delwar Hossain Vs. Mvi Abdul Jalil Chowdhury and others, reported in 22 DLR 322 and the case of the Managing Committee NMC Model High School and others VS. Obaidur Rahman Chowdhury and others, reported in 31 DLR (AD) 133 in support of his contentions. There is no dispute to the proposition of law that amendment of pleadings can be allowed at any stage of the proceedings for the purpose of determining the real question of controversy between the contending parties. One of the fundamental principles governing a decision on amendment of the pleadings is that all possible controversies between the parties, as far as practicable, should be included in a single suit or legal proceedings in order to avoid multiplicity of litigation. In a proper case amendment may be allowed even at the appellate stage in such manner as may be just for the purpose of determining the real controversy between the contending parties. While allowing amendment of pleadings the court is required to see if the proposed amendment would cause unnecessary hardships and prejudice to the adverse party and the applicant is not found guilty of deliberate laches in seeking amendment at such belated stage. Although the Court usually takes a lenient view in the matter of amendment of the plaint, yet it refuses to allow amendment where the new claim sought to be introduced in the plaint by way of amendment is barred by limitation by lapse of time and a legal right has accrued to the adverse party. In the instant case, the plaintiff’s claim arose as far back as in 11-9-74 and the suit was filed in 1975. By the proposed amendment the plaintiff seeks to introduce a new claim in 1988 under the garb of amendment of the plaint, his new claim being evidently barred under the provision of Article 39 of the Limitation Act, which provides a period of one year for filing a suit as against a carrier for realisation of compensation for short delivery of goods. It is thus manifestly evident that the new claim of the plaintiff is prima facie barred by limitation. 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 and inequitable and as such cannot be endorsed without causing violence to equity, justice and good conscience. We are constrained to find that the learned Subordinate Judge failed to address himself to these vital legal aspects of the case and fell in error in passing the impugned order in a most casual manner. In the facts of the case, we have no hesitation to find that the learned Subordinate Judge failed to apply his judicial mind into the facts and circumstances of the case and the law regulating amendment of the plaint The impugned order is thus found illegal and arbitrary and the same has occasioned failure of justice.
13. In the result, the Rule is made absolute on contest with cost, which is assessed at Taka 2,000,00 only. The impugned order dated 20-9-88 passed by the learned Subordinate Judge as 2nd Commercial Court, Chittagong in Money Suit No.22 of 1987 allowing the amendment of the plaint is set aside and the plaintiff’s application dated 17-7-88 praying for amendment of the plaint under Order 6 rule 11 of the Code of Civil Procedure stands rejected.
14. The order of stay granted earlier by this Court stands vacated.
15. In view of the fact that this is an old suit, it is necessary in the interest of justice that it be disposed of expeditiously. The learned Subordinate Judge and 2nd Commercial Court, Chittagong is hereby directed to dispose of Money Suit No. 22 of 1987 within three months from the date of receipt of this order.
Communicate the order to the learned Court below at once.
Source : 53 DLR (2001) 280