Appellate Division Cases
Noor Uddin …………………..……………………………..Petitioner
Alimuddin and others……………………………………… Respondents
M. M. Ruhul Amin J
Md. Tafazzul Islam J
Date of Judgment
22nd August 2005
Order 6 Rule 17 of the Code of Civil Procedure
The High Court Division while allowing the prayer for amendment held that in a suit for partition prayer for declaration is added that con not change the nature and character of the suit (5)
In the circumstances, we are of the view that the High Court Division upon correct assessment of the materials arrived at a correct decision (6)
A. 5. M. Khalequzzaman, Advocate-on-Record. For the Petitioner Nurul Islam Bhuiyan, Advocate-on-Record For Respondent No.l Not represented Respondent Nos.2-18 Civil Petition for leave to appeal No. 1248 of 2003.
1. M. M. Ruhul Amin J : This petition for leave to appeal is directed against the judgment and order dated 29.06.2003 passed by a Single Bench of the High Court Division in Civil Revision No.4300 of 2002 making the Rule absolute.
2. Short facts are that the plaintiffs instituted Partition Suit No.295 in the Court of learned Subordinate Judge, (now Joint District Judge), Kishoreganj seeking partition of their share in the suit land. The suit on transfer to the Court of Assistant Judge, Kishoreganj was renumbered as Partition Suit No.95 of 1993.
3. The defendant Nos.2,5 and 8 contested the suit by filing written statement and the learned Assistant Judge upon hearing the parties dismissed the suit. Thereafter, the plaintiffs preferred other Class Appeal No.372 of 1993 before the learned District Judge, Kishoreganj. The appeal was transfarred to the Court of Joint District Judge, Kishoreganj for hearing. During pendency of the appeal an application for amendment of the plaint under order 6 Rule 17 of the Code of Civil Procedure was filed but the learned joint District Judge rejected the application for amendment. The plaintiffs then moved the High Court Division in revisional jurisdiction. The High Court Division allowed the amendment application and made the Rule absolute.
4. We have heard Mr. A. S. M. khalequzzaman, the learned advocate-on-Record for the petitioner and perused the judgment of the High Court Division and other connected papers.
5. By the proposed amendment the plaintiff added a prayer for declaration of title in the suit for partition and for payment of advalorem court fee accordingly. The High Court
Division while allowing the prayer for amendment held that in a suit for partition prayer for declaration is added that can not change the nature and character of the suit.
6. In the circumstances, we are of the view that the High Court Division upon correct assessment of the materials arrived at a correct decision.
7. Accordingly, the petition is dismissed.
Source: III ADC (2006) 916