X Denims Limited and another Versus Y and others

DISTRICT: DHAKA

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

CIVIL REVISION NO. ___________OF _______

X Denims Limited and another

Petitioners

Versus

Y and others

Opposite-parties

COUNTER AFFIDAVIT ON BEHALF OF THE OPPOSITE-PARTY NO. 1

I, Y, son of Late Z, Director of X Denims Limited, 184-193 DEPZ, Savar, Dhaka, residing at Mamun Plaza, 31 Hatkhola Road, Sutrapur, Dhaka, by faith Muslim, Bangladeshi by birth, profession business, aged about _____ years, do hereby solemnly affirm and say as follows:

01. That I am the opposite-party No. 1 in this case and conversant with the facts and circumstances of the case and competent to swear this affidavit.

02. That I have gone through the revisional petition (hereinafter referred to as “the petition”) whereupon the instant Rule has been issued. Having understood the contents of the said petition I have been advised by my learned lawyer to controvert those statements which are necessary for disposal of the instant Rule and those statements which I do not hereinafter specifically admit shall be deemed to have been denied by me.

03. That the statements made in paragraph Nos. 1 and 2 of the petition are matters of record, hence no comment is made.

04. That the statements made in paragraph No. 3 of the petition are matters of record. In this regard it is submitted that the statements have no manner of relevancy in the instant revisional petition.

05. That the statements made in paragraph No. 4 of the petition are matters of record. In this regard it is submitted that this opposite-party rejected the Annual General Meeting and accordingly did not attend the meeting in that he said meeting was not held in accordance with law.

06. That the statements made in paragraph No. 5 of the petition are matters of record. In this regard it is submitted that the application for amendment of the plaint was filed to amend certain statements in the plaint without changing the nature and character of the suit.

07. That the statements made in paragraph No. 6 (wrongly numbered in the petition as paragraph No. 4) of the petition are matters of record. In this regard it is submitted that the statements made by the petitioners of this revisional petition in their written-objection are false and frivolous.

08. That the statements made in paragraph No. 7 (wrongly numbered in the petition as paragraph No. 5) of the petition are matters of record. In this regard it is submitted that since the amendments did not change the nature or character of the suit, the learned Court below committed no error of law in allowing the said amendments.

09. That the statements made in paragraph No. 8 (wrongly numbered in the petition as paragraph No. 6) of the petition are false, frivolous and misrepresentation of both law and facts, hence denied by this opposite-party. Contrary to what has been stated, the learned Court below has not allowed the amendments on misconception of law and facts. Since the amendments in question did not change the nature and character of the suit, there was no failure to apply judicial mind by the learned Court below in disposing of the amendment application. It is further submitted that from the statements made in the revisional petition, the learned Court below does appear to have committed any error of law which has resulted in an error in the decision occasioning failure of justice. As such the impugned order does not call for any interference by this Hon’ble Court. Any interference by this Hon’ble Court will be an abuse of the judicial power of the High Court.

10. That the statements made in paragraph No. 9 (wrongly numbered in the petition as paragraph No. 7) of the petition are misrepresentation of both law and facts, hence denied by this opposite-party. Contrary to what has been stated, the amendments were necessary to determine the real question in controversy between the parties. In this regard it is submitted that in the application for amendment it was clearly stated that following the rejection of the opposite-party No. 1’s application for temporary injunction by the learned Court below by its order dated 06.06.2002, the Annual General Meeting in question was held on 08.06.2002 as per the disputed notice. As a result the opposite-party No. 1’s prayer for permanent injunction became infructuous and hence some statements made in the plaint became redundant. Therefore, the amendments were necessary to bring the subsequent development in the plaint.

11. That the statements made in paragraph No. 10 (wrongly numbered in the petition as paragraph No. 8) of the petition are misrepresentation facts, hence denied by this opposite-party. Contrary to what has been stated, the petitioner did not succeed in raising any point of law against the proposed amendments. Moreover, the amendments were necessary to determine the real question in controversy between the parties in the changed situation. As such the learned Court below committed no error of law resulting in an error in the decision occasioning failure of justice.

12. That the statements made in paragraph No. 11 (wrongly numbered in the petition as paragraph No. 9) of the petition are false and motivated, hence denied by this opposite-party. In this regard it is submitted that the petitioner of this revisional petition in their written statement disclosed certain new facts which gave rise to new and fresh controversy between the parties. In order to determine the said controversies the amendments were necessary. As such the learned Court below committed no error of law in allowing the amendments.

13. That the statements made in paragraph Nos. 12 and 13 (wrongly numbered in the petition as paragraph Nos. 10 and 11) of the petition are false, frivolous and concocted, hence denied by this opposite-party. In this regard it is submitted that no new facts were introduced to improve the case. In fact by way of amendments the opposite-party No. 1 stated the facts which arose after institution of the suit.

14. That the statements made in paragraph No. 14 (wrongly numbered in the petition as paragraph No. 12) of the petition are false, frivolous, concocted and misrepresentation of both law and facts, hence denied by this opposite-party. In this regard it is submitted that the amended prayer is for declaration and permanent injunction, which are not barred by section 42 of the Specific Relief Act.

15. That the grounds shown in the petition are untenable and as such the Rule is liable to be discharged. In this regard it is submitted that the grounds do not disclose any error of law committed by the learned Court below. As such the Rule is liable to be discharged.

16. That it is submitted that the learned Court below has not committed any error of law in allowing the amendments in that the learned Court below has found that the amendments were likely to facilitate the determination of the real questions in controversy. The said findings of the learned Court conforms the decision of the Supreme Court reported in 29 DLR (SC) 314 wherein the Hon’ble Court held that the Court concerned shall have to find out according to the terms of the rule, whether the proposed amendment is likely to facilitate the determination of the real questions in controversy.

17. That it is submitted that the instant Rule is liable to be discharged since the learned Court below has not committed any error of law in allowing the amendments in that the learned Court has allowed the amendments in light of the decision of the Appellate Division reported in 31 DLR (AD) 133 wherein the Hon’ble Court held that one of the fundamental principles 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.

18. That it is submitted that the learned Court below has not committed any error of law in allowing the amendments in that the learned Court has allowed the amendments in light of the decision of this Hon’ble Court reported in 51 DLR 81 wherein the Hon’ble Court held that amendment of plaint should not be refused unless (a) the plaintiff’s suit is wholly displaced by amendment (b) the amendment takes away right accrued by lapse of time (c) the amendment introduces a different, new and inconsistent case and the amendment converts the suit into a different and inconsistent character.

19. That it is well settled that amendment of plaint may be allowed if the nature of the suit is not altered and it does not prejudice or surprise the opposite-party. In the instant case the amendments did not alter the nature of the suit and prejudice or surprise the petitioner of this revisional petition. As such the learned Court below has not committed any error of law in allowing the amendments.

20. That it is submitted that the legal position is that amendment may be allowed if amendment adds new reliefs and does not cause injustice to the other party. Similarly a new ground in support of the relief claimed does not alter the nature of the suit and amendment may be allowed. Accordingly, in the instant case new reliefs have been added in pursuance of the changed situation and new grounds in support of the relief claimed have been inserted in the plaint by way of amendments. As such the learned Court below committed no error of law in allowing the amendments and therefore, the instant Rule is liable to be discharged.

21. That it is well settled that introduction of a relevant fact by way of amendment for determining the real question in controversy should not be refused. As such the learned Court below has not committed any error of law.

22. That it is submitted that the instant Rule is liable to be discharged since the learned Court below has not committed any error of law in allowing the amendments in that the learned Court has allowed the amendments in light of the decision of this Hon’ble Court reported in 47 DLR 235 wherein this Hon’ble Court held that the Court can take into account subsequent event necessitating amendment by addition of new relief that may be allowed to do complete justice.

23. That it is submitted that the learned Court below has not committed any error of law in allowing the amendments in that the learned Court has allowed the amendments in light of the decision of this Hon’ble Court reported in 28 DLR 130 wherein this Hon’ble Court held that where an amendment of the plaint in a suit does not alter the averment of the plaint but it is sought in view of the subsequent happenings after the filing of the suit, such prayer for amendment can be granted.

24. That it is submitted that the impugned order has not resulted in an error in the decision occasioning failure of justice. In such situation it is not a proper case for inference by this Hon’ble Court. As such the order passed by the learned Court below should not be disturbed and therefore, the Rule is liable to be discharged.

25. That under the above circumstance your Lordships may be pleased to discharge the Rule and/or pass such further order or orders as the court may deem fit and proper.

26. That the statements of facts made above are true to the best of my knowledge and belief and the rest are submissions before this Hon’ble Court.