Appellate Division Case
(Civil)
PARTIES
Md. Shafiqul Islam Chowdhury and others……………… Appellants
-Vs-
Mustafizur Rahman and others……………………….. Respondents.
JUSTICES
Mohammad Fazlul KarimJ
Md. Joynul Abedin J
Md. Hassan Ameen J.
Judgment Dated: 7th January 2008
The Code of Civil Procedure Order 6 Rule 17
For declaration of title and Khas possession by evicting the defendants on removing obstructions.
The plaintiffs thereafter filed an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint by incorporating a prayer for partition as an alternative to the prayer for eviction and also for addition of two persons as defendants ……………………….(2)
Whether the proposed amendment does change the nature and character of the suit or it is an additional/alternative prayer for doing the complete justice in the matter, requires investigation. …………………(4)
The amendment in question in effect seeks to incorporate an alternative prayer for partition if the defendants are found to be co-sharer in the suit holding and such amendment will not change the nature and character of the suit, rather such alternative prayer should be considered necessary for the purpose of effective adjudication of the matter in dispute and for doing the complete justice in the matter avoiding multiplicity of suits and proceedings and as such the learned Subordinate Judge as well as the learned Judges of the High Court Division erred in law in rejecting the prayer for amendment of the plaint …………………………..(6)
Amendment of a plaint can be allowed in the discretionary power of the Court and such discretion is required to be exercised judicially and not in an arbitrary or perfunctionary manner amounting to an illegal exercise of jurisdiction. An amendment to the plaint must not be allowed if it tends to change the character of the plaint or the character of the suit. In the instant case, the amendment sought for will not change the character of the suit or the plaint; rather such amendment is capable of determining the real question in controversy by allowing partition and giving possession of the respective share of the parties to the suit land by dividing the suit land between the parties by metes and bounds on measurement if necessary. Both the courts below therefore committed an error in law in rejecting the prayer for amendment of the plaint for partition as an alternative prayer……………..(10)
The appeal is accordingly allowed without any order as to costs……….. (11)
Mustafa Niaz Muhammad, Senior Advocate, instructed by Md. Nawab AH, Advocate-on-Record ……………………….For the Appellants
Md. Khurshid A lam Khan, Advocate, instructed by A.S. M. Khalequzzaman, Advoeate-on-Record……………………. For the Respondents
Civil Appeal No. 155 of 2003
(From the judgment and order dated 5.12.2001 passed by the High Court Division in Civil Revision No.4631 of 2000.)
JUDGMENT
Md. Joynul Abedin J: This appeal by leave is directed against the judgment and order dated 5.12.2001 passed by a Division Bench of the High Court Division in Civil Revision No.4631 of 2000 discharging the Rule and thereby refusing amendment of the plaint.
2. The appellants as plaintiffs filed Other Suit No. 1 84 of 1994 for declaration of title and Khas possession by evicting the defendants on removing obstructions. The defendants appeared and filed written statement opposing the claim of the plaintiffs. The plaintiffs thereafter filed an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint by incorporating a prayer for partition as an alternative to the prayer for eviction and also for addition of two persons as defendants.
3. The trial court on consideration of the application for amendment rejected the same on contest by order dated 3.9.2000 on the ground that the amendment sought, if allowed, would totally change the nature and character of the suit. The plaintiffs then challenged the aforesaid order dated 3.9.2000 in revision and a Division Bench of the High Court Division initially issued rule but finally discharged the same on affirmance of the said order of the trial court on the ground that the amendment in question would not help settle the real “controversy in issue whether the plaintiff was in possession and then, was dispossessed from the schedule Kha land”.
4. Against this backdrop, the plaintiffs, who arc appellants before us, filed the civil petition for leave to appeal. Leave was granted in the following terms: “Whether the proposed amendment does change the nature and character of the suit or it is an additional/alternative prayer for doing the complete justice in the matter, requires investigation.”
5. We have heard Mr. Mustafa Niaz Muhammad, the learned Advocate for the appellant and Mr. Md. Khurshid Alam Khan, the learned Advocate for respondents and perused the judgment of the High Court Division and other connected papers.
6. The learned Advocate for the appellants submits that the amendment in question in effect seeks to incorporate an alternative prayer for partition if the defendants are found to be co-sharer in the suit holding and such amendment will not change the nature and character of the suit, rather such alternative prayer should be considered necessary for the purpose of effective adjudication of the matter in dispute and for doing the complete justice in the matter avoiding multiplicity of suits and proceedings and as such the learned Subordinate Judge as well as the learned Judges of the High Court Division erred in law in rejecting the prayer for amendment of the plaint.
7. In order for correct understanding of the question at issue and the dispute between the parties it is necessary to be apprised of the respective contentions of the parties. The plaintiffs purchased the suit land on 15.8.1975 from one Mrs. Anwarul Islam, wife of one Sirajul Islam, in R.S. Dag Nos.2632, 2633 and 2637 from the western portion of the said Dags. Defendant Nos.l and 5 and one Abul Kalam Azad purchased 1 Kani 4 gonda 3 kara 1 danti land from the eastern portion of the said Dags by kabala dated 13.2.1986 from
Anwarul Islam Boby, son of said Sirajul Islam. Defendant Nos.2-4 exchanged some of their purchased land with defendant No. 1. But the defendants forcibly dispossessed the plaintiffs from a portion of their purchased land as shown in the Kha schedule to the plaint on 16.6.1993. The defendants do not dispute the purchase of the suit land by the plaintiffs from the wife of Sirajul Islam but they only denied the allegation of dispossession of the plaintiffs from the suit land mentioned in the Kha schedule to the plaint. In this context of the dispute the plaintiffs prayed for the amendment in the plaint.
8. The learned Advocate for the plaintiff-appellants submits that since the defendants admit that the plaintiffs purchased the suit land from the suit holding the plaintiffs are therefore co-sharer in the suit holding with the defendants. Hence the amendment for partition of the suit land is permissible in law as an alternative prayer in case the dispossession of the plaintiffs by the defendants is not proved. The learned Advocate for the defendants on the other hand contends that the real question in controversy is whether the plaintiffs had possession and they were subsequently dispossessed by the defendants.But the amendment to the plaint seeking incorporation by way if an alternative prayer for partition is not considered necessary to resolve the dispute between the parties. The amendment has therefore been rightly disallowed.
9. From the pleadings of the parties, it is clearly discernible that both the parties are co-sharers to the disputed holding by purchase and exchange. The only question that is raised and calls for determination whether the plantiffs are owners having title to the land described in the Kha schedule to the plaint and whether they have been dispossessed therefrom by the defendants and are entitled to recovery of possession thereof from the defendants. It is therefore clear that the instant case is not a case for mere recovery of possession by the plaintiffs under section 9 of the Specific Relief Act regardless of whether the plaintiffs have title to the suit land. But regrettably both the trial court as well as the High Court Division in erratic and perfunctory exercise of their judicial function
rejected the aforesaid prayer for partition of the suit land by way of amendment to the plaint after declaration of title thereto by the plaintiffs. Both the courts below mistook the present sir- as a suit for recovery of possession under section 9 of the Specific Relief Act and rejected the prayer for amendment of the plaint. This is a glaring example of non-application of mind to the facts of the case by the learned Judges of the High Court Division.
10. Amendment of a plaint can be allowed in the discretionary power of the Court and such discretion is required to be exercised judicially and not in an arbitrary or perfunctionary manner amounting to an illegal exercise of jurisdiction. An amendment
to the plaint must not be allowed if it tends to change the character of the plaint or the character of the suit. In the instant case, the amendment sought for will not change the character of the suit or the plaint; rather such amendment is capable of determining the real question in controversy by allowing partition and giving possession of the respective share of the parties to the suit land by dividing the suit land between the parties by metes and bounds on measurement if necessary. Both the courts below therefore committed an error in law in rejecting the prayer for amendment of the plaint for partition as an
alternative prayer.
11. The appeal is accordingly allowed without any order as to costs.
Source : V ADC (2008) 329