An application under Section 115(1) of the Code of Civil Procedure

DISTRICT: CHITTAGONG

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

CIVIL REVISION NO. OF ________

IN THE MATTER OF:

An application under Section 115(1) of the Code of Civil Procedure.

AND

IN THE MATTER OF:

Uttara Bank Limited

Head Office

90, Motijheel Commercial Area

Dhaka-1000

AND

Uttara Bank Limited

Chaktai Branch

P. S. Baklia

District Chittagong

Defendant/Petitioner

Versus

1. Mr. A

Son of B

Owner of M/S C & Brothers

1222, Rajakhali Road

Chaktai

P. S. Baklia

Chittagong

2. B

Son of late D

Satish Babu Lane

P. S. Katwali

District Chittagong

Opposite-parties/Plaintiffs

AND

IN THE MATTER OF:

Order No. 24 dated 05.10.2005 passed by Mr. Md. Ismail Hossain, Joint District Judge, 1st Court at Chittagong in Money Suit No. 1 of 2004 allowing the application filed by the opposite parties/plaintiffs under Order VI Rule 17 of the Code of Civil Procedure for amendment of plaint.

PETITION VALUED AT TK. 7,52,20,785.00 ONLY

BEING SUIT VALUED AT TK. 7,52,20,785.00 ONLY

To:

Mr. Justice Syed J. R. Muddasir Husain, the Chief Justice of Bangladesh and his companion justices of the Hon’ble Supreme Court.

The humble petition of the petitioner above named most respectfully

SHEWETH:

01. That this revisional petition is filed against Order No. 24 dated 05.10.2005 passed by Mr. Md. Ismail Hossain, Joint District Judge, 1st Court at Chittagong in Money Suit No. 1 of 2004 allowing the application filed by the opposite parties/plaintiffs under Order VI Rule 17 of the Code of Civil Procedure for amendment of plaint. The impugned order is erroneous since the Court below failed to consider that the amendment of the plaint has changed the nature and character of the suit. As such by allowing the application filed by the opposite parties/plaintiffs for amendment of plaint, the learned Court below committed error of law resulting in an error in the decision occasioning failure of justice, hence the impugned order is liable to be set aside.

02. That the petitioner is a banking company incorporated under the Companies Act, 1913 having its Head Office at the address given in the cause title (hereinafter referred to as the petitioner Bank). It carries on banking business within the territory of Bangladesh through its various branches.

03. That the opposite-party No. 1 is the owner of M/S C & Brothers and the opposite party No. 2 is the father opposite party No. 1. The opposite parties/plaintiffs have been doing import business by opening Letters of Credit (L/C) through the petitioner Bank since 1999.

04. That the opposite parties/plaintiffs filed Money Suit No. 1 of 2004 against the petitioner Bank 01.01.2004 for recovery of Tk. 2,52,20,785.00 only as compensation on the ground of misappropriation of 3850 metric tons of rice imported by the plaintiffs/opposite-parties through L/C No. 176120199 dated 01.03.2001. In the suit the plaintiffs/opposite-parties initially sought simple money decree as follows:

(a) A decree for Tk. 2,52,20,785.00 against the defendant Bank as compensation for misappropriation of 3850 metric tons of rice by the defendant Bank as per schedule of the plaint.

05. That subsequently, the opposite parties/plaintiffs filed an application under Order VI, Rule 17 of the Code of Civil Procedure, 1908 for amendment of plaint on 31.10.2004 and the leaned Court below allowed the prayer of the opposite parties/plaintiffs and thereby the opposite parties/plaintiffs increased their claim from Tk. 2,52,20,785.00 to Tk. 7,52,20,785.00 only in the Money Suit.

06. That subsequently, on 22.09.2005, the opposite parties/plaintiffs filed another application under Order VI, Rule 17 of the Code of Civil Procedure, 1908 for amendment of plaint to add certain factual statements in the plaint. The opposite parties/plaintiffs also prayed for addition of one declaratory decree and one directory decree as follows:

(a)(a) A decree declaring that since the defendant Bank failed to deliver 3850 metric tons of rice to the plaintiffs, the claim of the defendant Bank for Tk. 2,61,53,140.00 and interest thereon against the LIM account No. 5/2001 is unlawful, illegal, connivance and without jurisdiction and the defendant Bank is not entitled to get any money from the plaintiffs.

(a)(a)(a) A decree against the defendant Bank to hand over the documents including the title documents of the schedule property and the security documents kept with the defendant Bank.

07. That the application filed by the plaintiffs on 22.09.2005 for amendment of plaint was taken up for hearing on 05.10.2005. The lawyer of the petitioner Bank filed an application praying for time to file written objection against the said application. The learned Joint District Judge, 1st Court at Chittagong vide Order No. 24 dated 05.10.2005 allowed the application filed by the opposite parties/plaintiffs for amendment of the plaint holding that the proposed amendment will not change the nature and character of the Money Suit No. 1 of 2004 and the prayer of the petitioner Bank was rejected stating that there is no need to file written objection by the defendant Bank.

08. That the suit in question was a Money Suit for simple money decree, but after amendment of plaint by the impugned order, the suit has been converted into a Title Suit (Other Suit) for declaration, direction and money decree. As such the amendment has completely changed the nature and character of the suit and hence the impugned order is liable to be set aside.

09. That it may be mentioned here that the above application for amendment was filed subsequent to the filing of the Artha Rin Suit No. 127 of 2004 on 25.04.2004 by the Bank for recovery of outstanding dues of Tk. 2,61,53,194.00 only as on 31.03.2004 against opposite parties/plaintiffs which is still pending. It is submitted that whether the petitioner Bank is entitled to recover the outstanding dues of Tk. 2,61,53,194.00 from the opposite parties/plaintiffs is the subject matter of the Artha Rin Suit No. 127 of 2004 and will be decided by the Court in that suit.

10. That it is submitted that the learned Court below failed to consider that the amendment, in fact, has changed the nature and character of the suit filed by the plaintiffs/opposite-parties since in a suit for recovery of money, declaration cannot be sought by the plaintiffs with regard to the subject matter of a separate suit filed by the petitioner Bank and therefore the impugned order is erroneous and is liable to be set aside.

11. That it is submitted that the learned Court below failed to consider that the application for amendment was filed to counter the claim of the Bank in Artha Rin Suit and as such the impugned order is liable to be set aside.

12. That it is submitted that the learned Court below has committed error in law in holding that the amendment will not change the nature and character of the suit in spite of the facts that the amendment would allow the opposite parties/plaintiffs to seek declaration in connection with the subject matter of another suit, namely, Artha Rin Suit No. 127 of 2004 filed by the petitioner Bank. As such the impugned order is erroneous and is liable to be set side.

13. That it is submitted that the learned Court below failed to consider the well established principle that an amendment should not be granted if it changes the nature and character of the suit since in the instant suit, it is apparent that the opposite parties/plaintiffs are allowed to seek declaration in a money suit filed for recovery of compensation. As such the impugned order is liable to be set aside.

14. That being aggrieved by and dissatisfied with the Order No. 24 dated 05.10.2005 passed by Mr. Md. Ismail Hossain, Joint District Judge, 1st Court at Chittagong in Money Suit No. 1 of 2004 allowing the application filed by the opposite parties/plaintiffs under Order VI Rule 17 of the Code of Civil Procedure for amendment of plaint, the petitioner above named beg to file this revisional petition on the following amongst other –

GROUNDS

I. For that the learned Court has failed to consider the facts that the suit filed by opposite parties/plaintiff was a Money Suit for simple money decree, but the impugned order has converted the suit into a Title Suit (Other Suit) for declaration, direction and money decree and as such the amendment has changed the nature and character of the suit and thus the learned Court below has committed error of law resulting in an error in the impugned order occasioning failure of justice and hence the impugned order is an erroneous order and is liable to be set aside.

II. For that the learned Court has failed to consider that the opposite parties/plaintiff through the amendment of plaint of Money Suit No. 1 of 2004 are seeking declaration in connection with the subject matter of the Artha Rin Suit No. 127 of 2004 filed by the petitioner Bank for recovery of outstanding dues of Tk. 2,61,53,194.00 only and thereby failed to consider that the nature and character of the instant Money Suit has been changed by the amendment and thus the learned Court below has committed error of law resulting in an error in the impugned order occasioning failure of justice and as such the impugned order is liable to be set side.

III. For that the learned Court below has committed error in law in holding that the proposed amendment will not change the nature and character of the suit, in spite of the facts that the amendment would allow the opposite parties/plaintiffs to seek declaration in connection with the subject matter of another suit, namely, Artha Rin Suit No. 127 of 2004 filed by the petitioner Bank and thus the learned Court below has committed error of law resulting in an error in the impugned order occasioning failure of justice and as such the impugned order is liable to be set aside.

IV. That it is submitted that the learned Court below failed to consider that the suit filed by the opposite parties/plaintiffs is a suit for recovery of money but by allowing the application for the amendment of plaint, the learned Court below allowed the opposite parties/plaintiffs to seek reliefs in the form of declaration which has changed nature and character of the Money Suit and thus the learned Court below has committed error of law resulting in an error in the impugned order occasioning failure of justice and as such the impugned order is liable to be set aside.

V. That it is submitted that the learned Court below failed to consider the well established principle that an amendment should not be granted if it changes the nature and character of the suit and since by the instant amendment, the opposite parties/plaintiffs are allowed to seek declaration in the Money Suit filed by them for recovery of compensation and thus the learned Court below has committed error of law resulting in an error in the impugned order occasioning failure of justice and as such the impugned order is liable to be set aside.

VI. For that the impugned order is otherwise illegal and liable to be set aside.

Wherefore, it is humbly prayed that the Hon’ble Court may be pleased to issue Rule calling upon the opposite parties/plaintiffs to show cause as to why the Order No. 24 dated 05.10.2005 passed by Mr. Md. Ismail Hossain, Joint District Judge, 1st Court at Chittagong in Money Suit No. 1 of 2004 allowing the application filed by the opposite parties/plaintiffs under Order VI Rule 17 of the Code of Civil Procedure for amendment of plaint shall not be set aside and after hearing the parties and cause shown, if any, make the Rule absolute;

AND

Pending hearing of the Rule, stay further proceedings of Money Suit No. 1 of 2004 pending before the Joint District Judge, 1st Court, Chittagong.

AND

Cost of the proceeding be awarded in favour of the petitioner; and/or pass such other or further order or orders as may be deemed fit and proper.

And for this act of kindness the petitioner as in duty bound will ever pray.

AFFIDAVIT

I, _____________________, son of late _________________________, Assistant General Manager, Uttara Bank Limited, Head Office, 90, Motijheel Commercial Area, Dhaka- 1000, aged about _________ years, by faith _________, profession service, nationality Bangladeshi, do hereby solemnly affirm and say as follows:

01. That I am the Tadbirkar of the petitioner in this case and acquainted with the facts and circumstances of the present case and competent and authorised to swear this Affidavit.

02. That the statements of facts made in this petition are true to my knowledge and matters of records, which I verily believe to be true and the rests are submission before this Hon’ble Court.

Prepared in my office:
DEPONENT
Advocate The deponent is known to me and identified by me.
Solemnly affirmed before me by the said deponent on this the _________th day of ______________ at _______ a.m. Advocate
Commissioner of Affidavits

Supreme Court of Bangladesh

High Court Division