Appellate Division Cases
(Civil)
PARTIES
Md. Sirajuddin …………………………..Appellant.
-vs-
Mohibunessa and others………………….Respondents
JUSTICE
Mainur Raza Chowdhury . J
Sayeed J. R.
Mudassir Husain. J
JUDGEMENT DATE: 30th April 2002.
Order 6 Rule 17 of the Code of Civil Procedure. 6 Rule 17 of the Code of Civil
Procedure
It is an established principle of law that the prayer of amendment can be allowed at any stage of the proceeding in order to decide the matter in controversy between the parities……………………… (9)
Civil Appeal Nos. 95 of 1994 (From the Judgment and order dated 20.6.1994 passed by the High Court Division in Civil Revision No. 56 of 1992).
Habibul Islam Bhuiyan, Senior Advocate, instructed by Md. Sajadul Huq, Advocate-on-
Record…………………… For the Appellant.
Sk. Afzalul Huq, Advocate, instructed by Md. Nawab Ali, Advocate-on Record………………..Respondent No.2
Ex-parte………………. Respondent Nos. 1, 3-5
JUDGMENT
1. Sayeed J. R. Mudassir Huasin, j :- In this appeal, leave has been granted by this division on 1.12.94 to consider as to whether the learned single judge of the High Court division was justified or not in affirming the order of rejection of application for amendment of the plaint filed under Order 6 Rule 17 of the Code of Civil Procedure in Other Class Suit No. 10 of 1989 by discharging the Rule issued in Civil Revision No. 56 of 1992.
2. The facts, in brief are that the appellant as plaintiff filed the aforesaid suit in the Court
of Assistant Judge, at Gouripur Upazilla for permanent injunction against the defendant
respondent, stating inter alia, that one Ahmed Ali Khalifa, the C. S. recorded tenant of 0.6
acres of land in C. S. Khatian number 66 sold the same to Fida Hossain and Noor Mohammad who owned and possessed the same for more than 12 years and thereafter Noor Mohammad died leaving his uncle Fida Hossain as his sole heir and as such fida Hossain became the exclusive owner of the said 0.06 acres of land that said fida Hossain transferred 0.04 acres of land to Rahimuddin and rest land to Mohammad Ali Raj Meah by two deeds of Heba-bi-Ewaz dated 13.12.60 and 24.1.61 respectively. After Heba
dated 13.12.60 only 0.01 acres of land remained in the said khatian, but it was wrongly written as 0.04 in the Heba dated 24.1.1961 and that although Shamsul Huq had no title to the Khatian but yet his name was wrongly recorded in the said record of right (ROR); that Md. Ali Raj Mia died as owner of 0.01 acres of land leaving defendant Nos. 1-3 as his heirs who entered into an agreement with the plaintiff appellant for sale of the same but did not execute the sale deed. However the plaintiff got kabala through court and possessed the said plot of land by raising structures there on and once those were burnt in the fire. That the respondent defendants, who are bad people, trying to grab the same and in order to show their possession therein they had filed a proceeding under section 144 Cr. P. C. on 31.1.1989 which was found by the Upazilla Magistrate to be false that
thereafter the said defendants along with few ‘gundas’ threatened the plaintiff on 24.3.1989 to vacate the suit land. Hence the suit was filed along with an application for temporary injunction to restrain the respondent defendants from interfering with the plaintiff appellants’ possession in the suit land.
3. The respondent defendants by filing written objection opposed the prayer for injunction which was later on traded as written statement, the respondents denied the plaint case, contending inter alia, that the father of the plaintiff appellant falsely created an ante-dated Deed of Heba-Bil-Ewaz and that Fida Husain gifted .04 acres of land to Ali Raj Mia and that Ali Raj Mia died leaving the defendants as his heirs who made an amicable partition there of by virtue of which the defendant Nos. 1-3 got the suit land and are living thereby raising structures thereon; that although defendant Nos. 1-2 did not enter into any agreement for sale with the plaintiff yet the plaintiff appellant and he
got a decree from court but the village elders having considered the state of affairs persuaded the plaintiff who executed a Heba on 10-6-85 i n respect of 3 huts of the land and that the plaintiff has no right title and possession in the suit land. During the pendency of the suit, the plaintiff filed an application under Order 6 Rule 17 reas with section 151 of the code of Civil Procedure for amendment of the plaint by adding a new paragraph after paragraph 4 of the plaint stating that during preparation of the
plaint certain important and relevant facts could not be stated and that due to bonafide omission new khatian No. 769 was written whereas in reality the new khatian will be khatian No. 766.
4. The defendants did not file any written objection against the aforesaid application for amendment of the plaint. The trial court rejected the plaintiffs application for amendment of the plairt by his order dated 16-10-1991and against which the plaintiff appellant moved the High Court Division in revision and the Rule issued in Civil Revision No. 56 of 1992 was discharged by the impugned order of the High Court Division dated 20.6.1994.
5. Mr. Habibul Islam Bhuiyan, the learned Counsel, appearing for the appellant, after placing the order of the trial court as well as the impugned judgment of the High Court Division, contended that in the fact and circumstances of the case, the findings of the Learned Single Judge to the effect that, “If any change is made in the plaint in respect of the suit khatian No. 769 to 766 it will not only amount to a
departure from the basic document and the basic decree, but also it will shift the whole suit land from one place to another in a suit for simple permanent injunction” and also found further to the effect that, “Even if the proposed amendment does not go to change the nature and character of the suit for permanent injunction yet I am of the opinion that the proposed amendment in the facts and circumstances will definitely go to change the nature of the plaint and it will prejudice the defendants” and the learned Counsel argued that the above findings are not based in the given facts and circumstances of the case and as such those findings are liable to be set aside.
6. Mr. Habibul Islam Bhuiyan, next argued that the High Court Division having failed to
consider that the plaintiff sought for an amendment of the number of khatian only that is to say that there was mistake in respect of khatina mentioned as khatian No. 769 but actually the numbers of khatin will be khatian No. 766. His submission is that the said amendment by way of correction of khatian number can not be any departure from the basic document the kabala in question and further the same will not change the nature and character either of the plaint or of the suit in any way. we find substance in his above submissions.
7. Mr. SK. Afzalul Huq, the learned Advocate supporting the judgment of the learned Assistant judge, has tried to argue that any change of the exhibited khatian No. 769 to
766 will amount to jumping upon others land by a complete departure from the plaintiff’s
suit land as described in the plaint and this will prejudice the defendant respondents. We are unable to accept his above contention for the reason that the change of number of khatian by ways of correction of one number to another either in the plaint or in the decree and in the document in question can be very well done by exercising the inherent power of the court under Section 151 of the Code of Civil Procedure under the facts and circumstances of the case and in the interest of justice. The learned Single Judge of the High Court Division in our view misdirected himself in not applying his judicial mind to the established principle of granting and refusing the amendment.
8. We have hear the learned lawyers of both sides and considered the above submissions
that on perusal of the records and the facts and circumstances of the case, we find that the amendments sought for were relevant for the purpose of deciding the point at issue once for all between the litigating parties. We therefore hold that the learned Single judge of
the High Court Division committed an error of law in not considering the established principle of law in the matter of granting and refusing the amendment which resulted in an error in the decision causing failure of justice.
9. We therefore hold that the change of number of khatian by way correction will
not in way change the nature and character of the suit nor does it shift the place of
property as stated in the kabala the basic document. It is an established principle of law that the prayer of amendment can be allowed at any stage of the proceeding in order to
decide the matter in controversy between the parities. The learned advocate for the respondent No.2 finds difficulty to repel the above arguments of the learned Counsel
for the appellant. In the aforesaid premises, we find merit in the appeal and the same should be allowed. In the result, the appeal is allowed and the impugned judgment of the High Court Division is set aside. No order is made as to cost.
Ed
Source: I ADC (2004), 136