Md. Khoda Box & ors. Vs. Md. Younus Ali Prang & ors., (Soumendra Sarker, J.)

Case No: Civil Revision No. 2659 of 2015

Judge: Soumendra Sarker, J

Court: High Court Division,

Advocate: Mr. Md. Shamsur Rahman, Advocate ,

Citation: 2019(2) LNJ

Case Year: 2018

Appellant: Md. Khoda Box being dead his heirs; 1(Ka) Md. Abdul Jalil prang and others

Respondent: Md. Younus Ali Prang and others

Subject: Code of Civil Procedure

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J

 

 

Judgment on

07.11.2018

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Md. Khoda Box being dead his heirs; 1(Ka) Md. Abdul Jalil prang and others

. . .Defendant-Appellant-Petitioner

-Versus-

Md. Younus Ali Prang and others

. . .Plaintiff-Respondent-Opposite parties.

Code of Civil Procedure (V of 1908)

Order VI, Rule 17 and 18

The amendment of the written statement must not be rejected when it does not change the fundamental character of the written statement and the law of amendment does not impose any bar on the defendant to claim as many roots to his title as he wants and they may even be conflicting to each other. The fundamental character of the defendants-appellants’ earlier case would not be changed in any manner, if the proposed amendment of written statement come into force and the proposed amendment is definitely required for determining the real question in controversy between the parties to the original suit for partition. The learned court of appeal below was not lawful in disallowing the application for acceptance of the additional written statement and in the impugned judgment and order there has been non application of judicial mind.     . . . (12 and 15 to 18)

Abul Kalam Azad and another Vs. Sunhar Ali and others 46 DLR (AD) 130 ref.

Mr. Md. Shamsur Rahman, Advocate

. . .For the petitioners.

Mr. Bhabesh Chandra Sarker, Advocate

…For the opposite parties.

JUDGMENT

Soumendra Sarker, J: The Rule issued calling upon the Opposite Parties No.1-7 to show cause as to why the impugned order dated 08.06.2015 passed by the learned Additional District Judge, 2nd Court, Bogura in Partition Appeal No.147 of 1997 should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

2.             The facts leading to the issuance of the Rule in a nutshell can be stated thus, that the present opposite parties No.1-7 as plaintiffs instituted the original Partition Suit No.53 of 1993 in the 2nd Court of learned the then Sub-ordinate Judge, Bogura against the defendant-appellant-petitioners and others. After service of summons notice the defendant No. 4 and 15 on making their appearance contested the suit by filing written statement. The learned trial court on hearing the parties decreed the suit in the preliminary form in favour of the plaintiffs by its judgment and decree dated 31.07.1997 and 10.08.1997 respectively.

3.             Being aggrieved the defendant No.15 as appellant preferred a partition Appeal being No.147 of 1997 in the Court of learned District Judge, Bogura and the appeal was transmitted to the 2nd Court of learned Additional District Judge, Bogura for hearing and disposal.

4.             During pendency of the appeal the appellant filed an application for additional written statement and the learned appellate court by its impugned judgment and order dated 08.06.2015 rejected the application for acceptance of the additional written statement.

5.             Being aggrieved by and dissatisfied with the impugned judgment and order of the learned appellate court, the legal heirs of the defendant No.15 have preferred this revisional application under section 115(1) of the Code of Civil Procedure and obtained the Rule with an interim order of stay.

6.             During hearing of this Rule Mr. Md. Shamsur Rahman, the leaned Advocate appeared on behalf of the petitioners while Mr. Bhabesh Ch. Sarker the learned Advocate appeared on behalf of the opposite parties.

7.             The learned Advocate appearing on behalf of the petitioners submits that the predecessor of the present petitioners was the defendant No.15 to the original partition suit and in that partition suit the defendant No.4 along with the defendant No.15 jointly contested by filing joint written statement. The learned Advocate further submits that after disposal of the original suit the defendant No.15 being aggrieved preferred the Partition Appeal No.147 of 1997. The learned Advocate also submits that for bonafide reason the defendant No.15 filed the application for acceptance of the additional written statement and in fact by the said additional written statement the nature, character and feature of the pleadings not changed, but the learned appellate court failed to apply his judicial mind and failed to appreciate the actual proposition of law and thereby committed an error in law resulting in an error in the decision occasioning failure of justice. The learned Advocate submits that in the impugned judgment and order the learned court of appeal below being guided by surmise and conjecture gave some premature observation and findings which is liable to be expunged and in the additional written statement, it is the positive case of the defendant-appellant that during filing of the earlier written statement inasmuch as the kabala deed dated 15.11.1968 was missing and subsequently it was found, the defendant-appellate for proper adjudication of the case filed the additional written statement. The learned Advocate lastly submits that the plaintiffs to the original suit claimed 2.03 acres of land in their partition suit while the defendant No.15 only claimed 57 decimals of land out of the suit jote and as such the plaintiffs have nothing to prejudice if the amendment of the written statement is allowed and that the land claimed by the defendant-appellant is the homestead land of him in which he has dwelling hut for the last 50 years and possessing the same in the knowledge of plaintiff-opposite parties and others.

8.             As against the aforesaid submission of the learned counsel for the petitioners the learned counsel appearing on behalf of the opposite parties opposing the Rule submits that the learned appellate court committed no illegality or irregularity in rejecting the additional written statement. The learned Advocate further submits that the additional written statement is contradictory with the earlier written statement filed by the defendant on 04.07.2009 and that the case of the defendants which was described earlier in their written statement has been changed by the subsequent additional written statement and the law does not permit such amendment of pleadings inasmuch as it would prejudice the adversary. The learned Advocate also submits that the learned appellate court in his observation and findings rightly held that the defendant claimed the property on the basis of a baina-nama of the year 1976 in their original written statement, but in the subsequent additional written statement the defendant-appellant claimed that he has purchased the property by a purchase deed of the year 1968 and in this way the earlier pleadings of the defendant-appellant has been changed by the additional written statement which cannot be accepted under the provision laid down in Order VI, rule 17 of the Code of Civil Procedure.

9.             In order to appreciate the argument advanced from the sides of the learned counsels for the parties, I have perused the original written statement of the defendant No.4 and 15, which was filed on 04.07.2009. I have also perused the additional written statement and the order of the learned appellate court with all other relevant documents. The copy of plaint of original Partition Suit No.53 of 1993 which is annexed with the supplementary affidavit on behalf of the petitioners, (Annexure-‘D’) go to show that the plaintiffs to the original suit in order to get a separate saham of 2.03 acres of land out of the suit jote comprising an area of 5.40 acres of land filed the original suit for partition.

10.         Going through the connected papers I find that the defendant No.15 in his application before the appellate court for acceptance of the additional written statement dated 08.03.2015 vide Annexure-‘B’ contended that the defendant No.4 Abdul Based misguided him (the defendant No.15) earlier and his engaged lawyer out of ill-motive to deprive the defendant No.15, after taking signature of the defendant No.15 managed to file the earlier written statement and after trial at the disposal of the original suit, the defendant No.15 filed the partition appeal and during pendency of that appeal at the death of the defendant No.15 the present appellants i.e. the present petitioners requested the defendant No.4 to handover all the relevant papers to them and the appellants tried to enquire into the relevant documents in support of their case and at a stage of that, they obtained the sub-kabala deed dated 15.11.1968 from the papers of their father which were kept under the custody of defendant No.4. After getting that sub-kabala deed it has become clear to the present petitioners that the defendant No.4 collusively misguided their father Khoda Box and to deprive him collusively filed the original written statement.

11.         I have come across from the contents of the proposed amendment of the written statement that the quantum of land of sub-kabala deed was 57 decimals arising out of the suit plot No.243 and 258 which was purchased by the predecessor-father of the appellants from Abdul Jabbar.

12.         On perusal of the impugned judgment and order dated 08.06.2015, I also find that the learned Additional District Judge, 2nd Court, Bogra in his observation and findings suspected the sub-kabala deed dated 15.11.1968 and passed an observation which is adverse to the interest of the present petitioners. Obviously, the observation and findings as given by the learned Additional District Judge, 2nd Court, Bagura in the last portion of the impugned judgment and order with regard to the genuinity of the document is premature and such type of observation can only be given after assessment of the evidences led from the sides of the respective parties with regard to the sub-kabala dated 15.11.1968 and as such the observation and findings to that effect is liable to be expunged forthwith. Furthermore, under the ambit of amendment of pleadings, the law of amendment enjoins that under the provisions laid down in Order VI, rule 17 and 18 of the Code of Civil Procedure generally all kinds of honest mistake or blunders are allowed to be rectified by amendment and it can be done without causing prejudice to the other side.

13.         In the instant case, it is apparent from the face of the papers that the proposed amendment as sought for does not change the nature and character of the pleadings as cited earlier and only some development which was subsequently brought into the notice of the appellant-petitioners was tried to incorporate in the amendment of the written statement.

14.         It is to be remembered that amendment of a plaint and amendment of a written statement are not governed by exactly the same principle. Some important general principles are no doubt common to both, such as, both the applications must be bonafide and intended for the purpose of determining the real controversy between the parties. But the rule that the plaintiff cannot amend his plaint so as to alter materially or substitute his cause of action or the nature of his claim has no counterpart in the law relating to amendment of the written statement. The only test is that whether the proposed amendment of the defence is necessary to determine the real controversy between the parties. [Ref. Abul Kalam Azad and another vs. Sunhar Ali and others 46 DLR (AD) 130].

Code of Civil Procedure (V of 1908) Order VI Rule 17:

15.         The amendment of the written statement must not be rejected when it does not change the fundamental character of the written statement and the law of amendment does not impose any bar on the defendant to claim as many roots to his title as he wants and they may even be conflicting to each other.

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