Present: Mr. Justice Siddiqur Rahman Miah
And Mr. Justice Syed Mohammad Ziaul Karim
CIVIL REVISION NO. 1640 OF 2000
Correct reproduction Indrajit Das and another
of the original. Opposite parties.
Mr.Md.Ali Azam, Advocate
…………. For the petitioner
Mr Sadananda Rana, Advocate
…………….. For the opposite parties
Heard on: 26-11-2006 and Judgment delivered on: 29-11-2006
SYED MOHMMAD ZIAUL KARIM:
This Rule was issued, calling upon the opposite parties to show cause as to why the Order dated 27-01-2000 passed by the learned Subordinate Judge, Second Court, Kishoregoiij, in Other Suit No. 06 of 1997, should not be set aside and pass such other order or further order or orders as to this Court may seem fit and proper.
2, . Short facts leading to this Rule are that on 27-08-
1996 the opposite part}’ No. 1 as plaintiff, instituted Other Suit No. 102 of 1996 in the Second Court of Subordinate Judge, Kishoregoiij, impleadiiig the petitioner and opposite
party No. 2 as defendants, for declaration that the deeds created by the defendant No. 1 are illegal, fraudulent, inoperative and not binding upon the plaintiff and for further declaration that the suit property is the “debottar” property. After transfer the suit was renumbered as Other Suit No. 06 of 1997.
3 That the plantiff’s case,in brief isthat the
property is the debottor property named “Sree Sree Anandamaoyee Kalimata” and the same is under the possession of Hindu Community; that the record of rights have been prepared in the name of deity; that the defendant No. 1 being a powerful and influential man created some false and forged documents which clouded the title of the plaintiff Hence the suit.
It The petitioner as defendant No. 1 appeared in the
suit by filing written statement deifying the material allegations made in. the plaint contending inter alia that the disputed plot Nos. 73 is surrounded by Plot Nos, 7] and 72, comprising total area of 36 decimals of land ; that the land comprising in Plot Nos. 72 and 73 were belonged to one H.C.
hattachariya and record of rights was also prepared in his
name.; that on 02-11-1968 defendant No. 1 purchased the
land described in Plot No. 72 from the successors of Harendra, thereafter, he constructed kitchen and latrine thereon ; that subsequently defendant No. 1 also purchased the land comprising in Plot No. 71; that there is no temple in the said suit land; that the aforesaid land was wrongly recorded in the name of Kentu Miah, Razzaqunnessa Girls’s High School and Abdul Jabbar, who subsequently on 10-08-1986 executed and registered the deed of release in favour of defendant No.l, and that the suit is liable to be
On 15-06-1997 the plaintiff filed an application
under Order VI Rule 17 of the Code of Civil Procedure for amendment of the plaint and by such proposed amendment the plaintiff wanted to incorporate some additional facts along with additional relief namely declaration that the suit property is a “debuttor property” and recover of Khas possession of the suit land by removing the illegal construction from there. It was also stated in the application (hat on 28-05-1997 defendant No. 1 dispossessed the plaintiff from the suit premises.
Eventually, after hearing, the learned Judge of the
trial Court by the order dated 27-01-2000 allowed the application. Hence the Rule.
Mr. Md. AH Azam, the learned Advocate appearing
on behalf of the petitioner supports the Rule and submits that the learned Judge of the Court below failed to consider that the proposed amendment will change the jnature and character of the suit, from a declaration for declaring certain documents are not binding upon the plaintiff to a suit for declaration of title and recovery of possession. He adds that the proposed amendment of the pleadings is barred by limitation. The learned Counsel submits that the learned Judge of the Court below allowed the application for amendment by non speaking order which caused serious miscarriage of justice.
g. Mr. Sadananda Rana, the learned Advocate
appearing on behalf of the opposite part}’ No. 1 opposes the Rule and submits that the proposed amendment of the plaint would not change the nature and character of the suit nor has it been allowed by a non-speaking order and this amendment of plaint is sought in view of the subsequent events after the filing of the suit, 011 the allegation that after
the institution of the suit the defendant petitioner has dispossessed the plaintiff from the suit premises and it would be in the ends of justice to decide the matter once for all in the suit. The learned Counsel adds that plaint may be amended to include subsequent events for doing complete justice, rather than driving the plaintiff-opposite party to institute a fresh suit on such accounts and to give both
parties an opportunity to contest on merit and to decide the real question in controversy. Mr. Rana lastly submits that considering the materials on record the learned Judge of the Court below rightly passed the impugned order which is just and proper and calls for no interference by this Court and as such the Rule is liable to be discharged.
In order to appreciate the submissions advanced
by the learned Counsels of both sides, we have gone through the revisional application, the plaint (Annexure-A), application for amendment dated 15-06-1997( Annexure-D), impugned order dated 27-01-2000, other materials on record and given our anxious consideration to the submissions advanced bv the learned Counsels for both
Now, the question calls for our consideration
whether the amendment of the plaint is at all necessary by the proposed amendment and whether the learned Judge of the Court below committed any error of law, resulting in an error in the decision, occasioning failure of justice in passing the impugned order, allowing the application for amendment.
m At the outset and for the convenience of
understanding the provisions of Order VI Rule 17 of the Code of Civil Procedure reads as hereunder:
” Rule 17- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the par-ties,”
have considered the plaint and the application
for proposed amendment dated 15-06-1997, we find that the plaintiff instituted the suit for declaration that the deeds in question created by defendant No. 1 are illegal, inoperative and not binding upon him and during pendency of the suit on 28-05-1997 he was dispossessed from the suit premises. By the proposed amendment the plaintiff wants to
incorporate such facts. It appears to us that proposed amendment will in no way change the nature and character of the suit or substitute any cause of action, rather such amendment is necessary for proper and complete adjudication of the suit which do not appear to be inconsistent, irrelevant, immaterial or contradictor}’ to the facts of the plaint. We find that one of the ^fundamental principle governing the amendment of the pleadings is that, all the controversies between the parties as far as possible should be included and multiplicity of the proceedings avoided. We like to observe that the proposed amendment is necessary for the purpose of determining the real question in controversy between the parties and proper adjudication of the suit. Moreover the plaintiff will prove his own case bs adducing evidence and the defendants have the ample opportunity to file additional written statement against such amendment. Therefore, the learned Judge of the trial Court considering the material facts rightly allowed the application for amendment.
3. In the case of Abdul Motaleb Vs. Md. Ershad Ali
and others reported in 18 BLD (AD) 121 wherein it is held: Code of Civil Procedure
” Order VI Rule 17
Since all rules of the Court are intended to secure
the proper administration of justice, it is essential
that they should be made to serve and be
subordinate to that purpose so that full powers of
amendment may be enjoyed and as such it should
always be liberally exercised. The only limitation in
allowing an amendment of the plaint is that the
proposed amendment should not change the
fundamental character and nature of the suit. The
settled law is that amendment of pleadings may be
allowed at any stage of the proceeding for the
purpose of determining the real question of
controversy between the parties. ”
[ij This view also receives support in the cases of
Mohammad Khaledur Reza Chowdhury Vs. Saleha Begum and others reported in 17 BLD (AD) 86, Samarendra Nath Roy Chowdhury Vs. Abdul Jabbar and others reported in 1 4 BLD(AD)229, Mayezuddin Mondal Vs. Beiia Rani Das and others reported in 45 DLR-154 and M.A. Jahangir and another Vs. Abdul Malek and others reported in 41 DLR-3S9.
Having regard to the facts, we failed to discover
any merit in the submissions advanced by the learne Counsel for the petitioner. On the contrary the legal plea taken by the learned Counsel for the opposite party No. 1
prevails and appears to have a good deal of force.
Having considered, the facts and circumstances of
the case, and foregoing narrative, we are led to the conclusion that the impugned order so far it relates to allowing the application for amendment, suffers from no
illegality and impropriety which calls for no interference by
this Court. Thus the Rule having no merit fails.
In the result, the Rule is discharged, without any
order as to cost. The impugned order dated 27-01-2000 so far it relates to allowing the application for amendment passed by the learned Subordinate Judge,Second Court. Kishoregaiij, in Title Suit No. 06 of 1997 is hereby affirmed.
The order of stay granted earlier by this Court
s t an d s v acate d .
The learned Judge of the trial Court is directed to
dispose of the suit as early as possible preferable within 6 (six) months from the date of receipt of this order,
Send down the lower Court’s record at once with a
copy judgment for information.
Correct reproduction of the original.