Abdur Rahman and others Vs. Md Shamsul Huq and others, 53 DLR (2001) 364

Case No: Civil Revision No. 2271 of 2000

Judge: Bijan Kumar Das,

Court: High Court Division,,

Advocate: Enayatur Rahim,,

Citation: 53 DLR (2001) 364

Case Year: 2001

Appellant: Abdur Rahman and others

Respondent: Md Shamsul Huq and others

Subject: Procedural Law,

Delivery Date: 2000-07-20

 
Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
Bijan Kumar Das, J.
 
Abdur Rahman and others
….……….Petitioners
Vs.
Md Shamsul Huq and others
…………..Opposite Parties
 
Judgment
July 20, 2000.
 
Code of Civil Procedure (V of 1908)
Section 153 & Order XLI rule 19
The District Judge is permitted to invoke his authority of general power of amending any defect or error in any proceeding which arose out of a suit. … (6)
 
Lawyers Involved:
M Enayetur Rahim, Advocate—For the Petitioners.
Md. Mahbub Ali, Advocate—For the Opposite Parties.
 
Civil Revision No. 2271 of 2000.
 
JUDGMENT
 
Bijan Kumar Das J.
 
This Rule was issued calling upon the opposite party No.1 to show cause as to why the impugned order dated 4-5-2000 passed by the District Judge, Mymensingh in Miscellaneous Case No.13 of 2000 should not be set aside.
 
2. The opposite party No.1 as plaintiff instituted Title Suit No.136 of 1999 in the Court of the Senior Assistant Judge impleading the petitioners and opposite parties No.2-31 as defendants praying for a decree for permanent injunction restraining the defendants from dispossessing the plaintiff or his tenants or any other persons of the plaintiff or disturbing the plaintiff’s peaceful possession of the suit property. In the said suit the plaintiff prayed for an order of temporary injunction which was ultimately allowed ex parte. The defendants then preferred Miscellaneous Appeal No.106 of 1999 before the learned District Judge, Mymensingh. The said appeal was dismissed for default on 12-1-2000 and thereafter the defendants filed Miscellaneous Case No.13 of 2000 under Order 41 rule 19 of the Code of Civil Procedure for re-admission of the appeal. Subsequently the defendant filed an application in Miscellaneous Case No.13 of 2000 for amendment of his application which was rejected by the learned District Judge by the impugned order dated 4-5-2000.
 
3. Being aggrieved thereby the defendants moved this Court and obtained the present Rule.
 
4. Mr. M Enayetur Rahim the learned Advocate appearing for the petitioners submits that the learned District Judge, committed an error of law in rejecting the application holding that Miscellaneous Case No.13 of 2000 is not an original proceeding and accordingly Order 6 rule 17 CPC cannot be invoked. Mr. Rahman submits that though the application was filed under Order 6 rule 17 read with section 151 of the Code of Civil Procedure, in fact the same should have been treated as one under section 153 of the Code of Civil Procedure. Mr. Rahman further submits that misdescription of the cause title could not be a bar in granting proper relief by invoking proper provision of law.
 
5. Mr. Md. Mahbub Ali, the learned Advocate appearing for the opposite party No.1 submits that the defendants have been taking dilatory tactics in defeating the cause of justice. According to Mr. Mahbub Ali devise taken by the defendants may not be encouraged in as much as they allowed the appeal to be dismissed for default and then filed the miscellaneous case for re-admission of the appeal and in the said Miscellaneous Case made a prayer for amendment in order to delay the purpose of the suit.
 
6. I have perused the impugned order and considered the submission of the learned Advocate for both the parties. It is by now an established principle of law that wrong description of section would not be a bar in allowing proper relief under proper provision of law. Miscellaneous case is not a proceeding of original nature. But this is yet a proceeding and section 153 of the Code of Civil Procedure provides the general power to amend any defect or error in any proceeding in a suit for the purpose of determining the real question or issue raised by or depending on such proceeding. This general power of amendment under section 153 of the Code of Civil Procedure is applicable in the facts of the case before us. The learned District Judge has not considered the prayer for amendment invoking section 153 of the Code of Civil Procedure. Non-consideration of this aspect by the learned District Judge has resulted in an error in the impugned decision occasioning failure of justice. Having given my anxious consideration I am of the opinion that the learned District Judge is permitted to invoke his authority of general power of amending any defect or error in any proceeding which arose out of a suit. The appeal is a continuation of the suit. The appeal was dismissed for default. Miscellaneous Case was filed for re-admission of the appeal. In the Miscellaneous Case prayer for amendment was made. This amendment in the proceedings can be considered under section 153 of the Code of Civil Procedure. I have perused amendment sought to be included in the application filed under Order 41 rule 19 of the Code Civil Procedure and it appears that the amendment will not in any way change the nature character of the proceeding. On the other hand, this amendment would enable the Court to determine the real question involved in the case. submission of the learned Advocate Mr. Mahbub Ali that the defendant has been taking dilatory tactics in the disposal of the matter is it any substance inasmuch as law empowers defendants to file an appeal against the order granting temporary injunction and in the event of the dismissal of the appeal for default law again, permits to apply for re-admission of the appeal order 41 rule 19 of the Code of Civil Procedure. In that view of the matter, I do not find any substance in the submission of the learned for the opposite party.
 
7. In the result this Rule is made absolute. The impugned order dated 4-5-2000 passed by the learned District Judge, Mymensingh is set aside and the prayer for amendment is allowed. There will no order as to costs.
 
8. The learned District Judge is directed to dispose of Miscellaneous Case No.13 of 2000 as early as possible, preferably within a period of 4 months from the date of the receipt of this order. The learned District Judge is further directed not to grant any adjournment to either parties except on emergent ground.
 
The office is directed to send a copy of the order at once to the Court of the learned District Judge, Mymensingh.
 
Ed.