Abdul Khaleque Gazi and others Vs. Abdul Aziz Mollah and others, 53 DLR (AD) 82

Case No: Civil Petition for Leave to Appeal No. 656 of 2000

Judge: Mahmudul Amin Choudhury,

Court: Appellate Division ,,

Advocate: Mr. Md. Aftab Hossain,,

Citation: 53 DLR (AD) (2001) 82

Case Year: 2001

Appellant: Abdul Khaleque Gazi and others

Respondent: Abdul Aziz Mollah and others

Subject: Procedural Law,

Delivery Date: 2001-1-25

 
Supreme Court  
Appellate Division  
(Civil)  
 
Present:
Latifur Rahman, CJ.
Mahmudul Amin Choudhury, J. 
Mainur Reza Chowdhury, J.
Md. Gholam Rabbani, J.
Md. Ruhul Amin, J.
 
Abdul Khaleque Gazi and others
...................... Petitioner  
Vs.  
Abdul Aziz Mollah and others
....................... Respondents
 
Judgment  
January 25, 2001.
 
The Code of Civil Procedure, 1908 (V of 1908)
Order VI rule 17  
Amendment allowed as per direction of the appellate court in order to prove shalish-nama which was the basis of the plaintiffs claim has been done in accordance with law and calls for no interference. 
 
Lawyers Involved:  
MA Jalil, Advocate, instructed by Md Nawab Au, Advocate-on-Record—For the Petitioners.  
Md. Aftab Hossain, Advocate-on-Record—For Respondent No. 1.
Not represented—Respondent Nos. 2-49.
 
Civil Petition for Leave to Appeal No. 656 of 2000.  
(From the judgment and order dated 3rd July, 2000 passed by the High Court Division in Civil Revision No. 3509 of 1999).  
 
JUDGMENT
 
Mahmudul Amin Choudhury J.
 
Petitioner filed this petition for leave to appeal against judgment and order dated 3rd July, 2000 passed by a Single Bench of the High Court Division in Civil Revision No. 3509 of 1999 discharging the Rule upholding order dated 10-5-1999 passed by the learned Assistant Judge, Assasuni, Satkhira in Title Suit No.173 of 1998 allowing amendment of the plaint. 
 
2. The short fact leading to this petition is that the plaintiff filed Title Suit No. 173 of 1998 for permanent injunction which was eventually decreed on 30-1-1986. Thereafter in Title Appeal No. 50 of 1986 the learned Additional District Judge set aside the judgment and decree and sent the case back on remand to the trial Court with a direction for taking fresh evidence in order to prove “Salishnama” which was the basis of the plaintiffs’ claim. Thereafter the plaintiffs filed a petition for amendment of the plaint seeking to incorporate some more reliefs by way of declaration of title and confirmation of possession and that amendment was allowed by the trial Court by order dated 10-5-1999. The defendant-petitioners were allowed to file additional written statement in view of the amendment but no such statement was filed. Against that order allowing amendment the petitioners moved the High Court Division in Civil Revision No. 3509 of 1999 and a Single Bench of that Division by the impugned judgment dated 3rd July, 2000 discharged the Rule.  
 
3. Mr. MA Jalil, the learned Advocate appearing on behalf of the petitioners submits that this amendment allowed after remand of the suit has caused miscarriage of justice as it has changed the nature and character of the suit.  
 
4. Mr. Jalil led us through the judgment of the High Court Division and it appears that only the prayer portion of the plaint was allowed to be amended and in so doing the High Court Division found that no illegality has been committed. We are in full agreement with the finding of the High Court Division. The learned Advocate for the petitioner failed to point out any legal infirmity in the judgment of the High Court Division which may call for our interference.  
 
There is no merit in this petition and the same is accordingly dismissed.
 
Ed.