Most. Roshena Khatun Vs. Md. Jahangir Alom and others, (Soumendra Sarker, J.)

Case No: Civil Revision No. 5064 of 2014

Judge: Soumendra Sarker, J

Court: High Court Division,

Advocate: Mr. Md. Abdul Aziz Sarder, Advocate, Mr. Mohammad Jahirul Islam, Advocate,

Citation: 2019(1) LNJ

Case Year: 2019

Appellant: Most. Roshena Khatun and others

Respondent: Md. Jahangir Alom and others

Subject: Code of Civil Procedure

Delivery Date: 2019-11-24

 

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J

 

Judgment on

28.06.2018

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Most. Roshena Khatun and others

. . . Defendant-opposite party-Petitioners

-Versus-

Md. Jahangir Alom and others

. . .Plaintiff-petitioner-Opposite parties

Code of Civil Procedure (V of 1908)

Order VI, rule 17

The proposed amendment does not change the nature and character of the suit, rather; it was necessary for the purpose of determining the real question in controversy between the parties and for complete effective adjudication to avoid multiplicity of the proceedings rightly and lawfully allowed the amendment. The fact remains that under the ambit of Order VI, rule 17 of the Code of Civil Procedure the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. Mere delay in filing the application for amendment cannot be a ground to hold that the application is malafide and the applicant for the said reason is not entitled to the relief prayed for, at best; a reasonable cost can be imposed in that case. Nevertheless, it will not attract the above mentioned ground or reason of refusal. The impugned judgment and order passed by the learned District Judge is set aside making the Rule absolute.                            ...(9 and 11 to 14)

Mr. Md. Abdul Aziz Sarder, Advocate

. . . For the petitioners

Mr. Mohammad Jahirul Islam, Advocate

. . . For the Opposite Parties.

JUDGMENT

Soumendra Sarker, J.  The Rule issued calling upon the Opposite Parties to show cause as to why the judgment and order dated 10.06.2014 passed by the learned District Judge, Rajshahi in Civil Revision No.25 of 2012 allowing the same and thereby reversing the judgment and order dated 10.06.2012 passed by the learned Senior Assistant Judge, Puthia, Rajshahi in Other Class Suit No.28 of 2012 should not be set aside and/or pass such other order or further order or orders as to this Court may seem fit and proper.

2.             The facts giving raise to this Rule in a nutshell are as follows: the present opposite parties as plaintiffs instituted the original Partition Suit being No.28 of 2012 in the Court of learned Assistant Judge, Puthia, Rajshahi against the present defendant-petitioners. After service of summons the defendants appeared in the original suit and filed their written statement. During pendency of the suit the defendants filed an application under order VI, rule 17 for amendment of the written statement and it was allowed by the learned trial court on 10.06.2012 and thereafter at the direction of the trial Judge the defendants No.1-30 filed their fresh written statement in which the amendments sought for, were incorporated.

3.             Being aggrieved, the plaintiffs preferred a civil revision in the court of learned District Judge, Rajshahi being Civil Revision No.25 of 2012 against the order dated 10.06.2012 passed by the learned Senior Assistant Judge, Puthia, Rajshahi. The learned District Judge, Rajshahi on hearing both the parties allowed the civil revision and set aside the order passed by the learned trial court by the impugned judgment and order dated 10.06.2014.

4.             Being aggrieved by and dissatisfied with the impugned judgment and order of the 1st Court of revision, this 2nd Revision was preferred by the defendant-petitioners under section 115(4) of the Code of Civil Procedure and obtained the Rule with an interim order of stay.

5.             During hearing of the Rule Mr. Md. Abdul Aziz Sarder the learned Advocate appeared on behalf of the petitioners while Mr. Mohammad Jahirul Islam, the learned Advocate appeared on behalf of the opposite parties.

6.             The learned Advocate appearing on behalf of the petitioners submits that the learned 1st court of revision during disposal of the Civil Revision No.25 of 2012 committed illegality and irregularity. The learned Advocate further submits that no new fact was inserted in the application for amendment by which the nature and character of the suit can be changed, rather; under the ambit of Order VI, rule 17 of the Code of Civil Procedure for effective and proper adjudication of the original suit for partition to arrive at a concrete decision as to the matter of controversy between the parties the proposed amendment of the written statement was prayed for and the learned trial court rightly allowed the same for determining the real question in controversy between the parties to avoid multiplicity of the proceedings by his order dated 10.06.2012. The learned Advocate after referring some decisions of this court and our Apex court reported in 21 BLT(AD) 175, 3 ALR(AD)5, 41 DLR 389, 42 DLR 227 and 246, 48 DLR 372 and 45 DLR 154 argued that the amendment of pleadings can be allowed at any stage of the proceedings and for determining the real question in controversy between the parties if it is found in any stage of the proceedings that the amendment is necessary, the court is quite empowered to allow such application for amendment and in this case delay is immaterial to arrive at a decision as to the amendment of the pleadings. The learned Advocate lastly submits that the learned District Judge, Rajshahi on the basis of conjecture and surmise arbitrarily passed the impugned judgment and order, which is not justified, lawful and sustainable and as such the impugned judgment and order is liable to be interfered with.

7.             As against the aforesaid submission of the learned Advocate for the petitioners, the learned Advocate appearing on behalf of the opposite parties, opposing the Rule submits that the learned 1st court of revision during disposal of the civil revision committed no illegality or irregularity. The learned Advocate further submits that the proposed amendment is vexatious and only to drag time in disposal of the original suit it was sought for from the side of the defendants to the original partition suit. The leaned Advocate also submits that the application for amendment filed under Order VI, rule 17 of the Code of Civil Procedure was not brought properly and the amendment was not necessary for determining the real question in controversy between the parties.  The learned Advocate argued that the proposed amendment will change the nature and character of the suit, inasmuch as; in the earlier written statement the defendants claimed their right, title, interest on the basis of separate facts and therefrom by the proposed amendment they were willing to bring a third case which is new and not necessary to arrive at a correct decision as to the matter of adjudication among the parties. The learned Advocate also submits that the ‘Nadabinama’ as alleged from the side of the defendants does not create any title or extinguish any right, title, interest of anybody and it would mere wastage of time and earlier for five times the defendants amended their written statement and as a result of that, the learned District Judge, Rajshahi rightly after considering the facts and circumstances of the case allowed the civil revision and set aside the order of the learned trial court by which the learned Senior Assistant Judge, Puthia, Rajshahi allowed the application for amendment of written statement. The learned Advocate lastly submits that in absence of any illegality in the impugned judgment and order there is nothing to interfere with the same and as such the Rule is liable to be discharged.

8.             In order to appreciate the submission advanced from the sides of the learned Advocates, having gone through the relevant papers including the order passed by the learned trial court dated 10.06.2012 in Partition Suit No.28 of 2012, the impugned judgment and order passed by the learned Senior District Judge, Rajshahi in Civil Revision No.25 of 2012, the copy of original written statement vide Annexure-‘L’ and the application for amendment of the written statement Annexure-‘N’, along with all other relevant papers, I find that in the original written statement, which was filed by the defendant-petitioners, they have stated about an amicable partition among the co-sharers of the case holding and transfer of 03 bighas land, one cow and thereby acquiring their exclusive interest and possession in the suit property. I also find from the application for amendment of the written statement filed under Order VI, rule 17 of the Code of Civil Procedure that the defendants to the original suit in their proposed amendment clarified the matter of amicable settlement among the co-sharers of the suit holding and a case of ‘nadabinama’ deed was brought by the defendants in the application which was allegedly executed in favour of one Mithon Sha, the predecessor-in interest of the defendants. It was further stated in the amendment application that two ‘nadabinama’ deeds have been find out on 02.06.2012, which are of 11.03.1978 and 23.11.1981 and these documents are in support of the amicable partition among the co-sharers of the suit holing.

9.             In the foregoing narrative, it is obvious to note that no new fact or case was brought in or was incorporated within the contents of the application for amendment under Order VI, rule 17 of the Code of Civil Procedure, despite of bringing the application after a long lapse of time. With regard to this, I have come across from the order of the learned trial court that the learned Senior Assistant Judge, Puthia, Rajshahi for cogent reason overlooked the matter of delay and being satisfied that the proposed amendment does not change the nature and character of the suit, rather; it was necessary for the purpose of determining the real question in controversy between the parties and for complete effective adjudication to avoid multiplicity of the proceedings rightly and lawfully allowed the amendment.

10.         Subsequent to that, the learned 1st Court of revision i.e. the learned Senior District Judge, Rajshahi held that after 36 years, the story of getting two unregistered ‘nadabinama’ deeds from and old suitcase is not believable, rather; it is a false concocted story. The learned 1st Court of revision further held that the suit is pending since 1982 and the defendants one after another are bringing their amendment of written statement causing delay in disposal of the suit.

11.         The fact remains that under the ambit of Order VI, rule 17 of the Code of Civil Procedure the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.

12.         Such a prayer for amendment of the pleadings can only be refused for the following reasons:

(i)     Where the application is for malafide or fraudulent purpose or intends to over-reach;

(ii)   Where it is made at a stage when it will require a trial of action afresh;

(iii) Where it seeks to remove an address in the pleadings and lastly;

(iv)  Where it will change the suit into a different kind of suit, i.e. it will change the nature and character of the suit.

13.         In the instant case, I have come across from the facts and circumstances of the case that the defendant-petitioners have brought the application for amendment of their pleadings after their several amendments and after a long lapse of time. Nevertheless, it will not attract the above mentioned ground or reason of refusal, for which it can be held that the application for amendment of the pleadings is not admissible or not permissible under the law of amendment as provided under Order VI, rule 17 of the Code of Civil Procedure.

14.         Having regard to the facts, circumstances, discussions and the decisions referred to above, I have every reason to inclined such a view that the learned Senior District Judge, Rajshahi was not lawful and justified in allowing the Civil Revision No.25 of 2012 and set aside the order of amendment of the pleadings passed by the learned trial court inasmuch as in appropriate case as I have spelt out earlier the amendment was brought in. It is to be remembered that, mere delay in filing the application for amendment cannot be a ground to hold that the application is malafide and the applicant for the said reason is not entitled to the relief prayed for, at best; a reasonable cost can be imposed in that case.

15.         In the result, the Rule is made absolute without any order as to costs. The impugned judgment and order dated 10.06.2014 passed by the learned District Judge, Rajshahi in Civil Revision No.25 of 2012 allowing the same and thereby reversing the judgment and order dated 10.06.2012 passed by the learned Senior Assistant Judge, Puthia, Rajshahi in Other Class Suit No.28 of 2012 is hereby set aside.

16.         The order of stay granted earlier by this court at the time of issuance of the Rule stands vacated.

17.         Communicate the judgment and order at once.

Ed.



Civil Revision No. 5064 of 2014