Shamim Akter Shama and another Vs. Sontosh Kumar Das and others 2016 (2) LNJ 251

Case No: Civil Revision No. 1816 of 2015

Judge: Syed Md. Ziaul Karim,

Court: High Court Division,,

Advocate: Mr. Aminul Haque,Mr. Faisal Mahmud Faizee,Mr. Md. Abdus Salam,Mrs. Ayesha Akhter,Mr. Ahsanur Rahman,Mr. Rajib Kumar Chakrabarty,,

Citation: 2016 (2) LNJ 251

Case Year: 2016

Appellant: Shamim Akter Shama and another

Respondent: Sontosh Kumar Das and others

Subject: Civil Law,

Delivery Date: 2015-11-08

Shamim Akter Shama and another Vs. Sontosh Kumar Das and others 2016 (2) LNJ 251
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
Syed Md. Ziaul Karim, J
And
Sheikh Md. Zakir Hossain, J.
Judgment on
08.11.2015
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Shamim Akter Shama and another
...Defendant Petitioners
-Versus-
1. Sontosh Kumar Das
. . .Plaintiff-opposite party.
2. A. H. M. Bahauddin and others
. . . Proforma-defendant-Opposite Parties

Code of Civil Procedure (V of 1908)
Order VI Rule 17
It transpires that it is a definite case of the plaintiff that he was dispossessed within six months before institution of the suit. Thereby he instituted the suit under Section 9 of the Specific Relief Act for summarily relief. During pendency of the suit he sought for amendment by incorporating some facts which relates to declaration of his title, recovery of Khas possession and declaration that the certain deed is fraud fraudulent, inoperative and not binding upon him. It transpires to us that proposed amendment has changed the nature and character of the suit. The proposed amendment of the plaint appears to be inconsistent, irrelevant, immaterial and contradictory of the facts of plaint. We find 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. The proposed amendment is not at all necessary for the purpose of determining the real questions of controversies between the parties and proper adjudication of the suit. Moreover, the respective party will prove their own case by adducing evidence, at the time of trial. . . . (14, 17 and 18)

Shafiqul Islam Chowdhury (Md.) and others Vs. Mustafizur Rahman and others, 60 DLR (AD) 42; Yar Mohd. and another Vs.. Lakshmi Das and others, AIR  1959 page -1 (Allahabad); Khaledur Reza Chowdhury (Md) Vs. Salcha Begum and others, 2 BLC (AD) 20; Pragati General Insurance Company Limited alias Pragati Insurance Ltd and others Vs. Md. Siddique Ali Mondal The Lawyers, 11 A.D.C. (2005)  927; Sultan Ahmed Vs. Purna Chandra Karmakar and others, 28 DLR-130: Shahajadpur Central Co-operative Bank Ltd. Vs. Md. Majibur Rahman and others, 18 BLD (AD) 81; Abdul Motaleb Vs. Md. Ershad Ali and others The Lawyers 11 A.D.C.- 30; Janata Bank, Bogra Vs. Saiful Islam, 206 BCR-200; Abdul Mutaleb Vs. Ershad Ali 1998 BLD (AD) 121= 4 BLC (AD) 150; Md. Khaledur Reza  Chowdhury Vs. Saleha Begum and others 1997 BLD (AD) 86=2 BLC(AD) 20; S.N. Roy Chowdhury Vs. A. Jabber and others, 1994 BLD-229=46 DLR 273; Moyjuddin Mondal Vs. Bena Rani Das and others, 45 DLR 154 and M.A. Jahangir and others Vs. Abdul Malek and others 41 DLR 389 ref.

Civil Revision No. 1816 of 2015


Mr. Faisal Mahmud Faizee, Advocate, with
Mr. Md. Abdus Salam, Advocate,
. . . For the petitioners.
Mr. Md. Aminul Haq, Senior Advocate with
Mrs. Ayesha Akhter, Advocate
Mr. Ahsanur Rahman, Advocate and
Mr. Rajib Kumar Chakrabarty, Advocate,
. . . For the opposite party no.1.
No one appears,
. . . For opposite party Nos. 2-4.
 
JUDGMENT

Syed Md. Ziaul Karim, J:
         By this Rule, the petitioners have challenged the legality and propriety of the order dated 08-03-2015 passed by learned Joint District Judge, Second Court, Dhaka, in Title Suit no. 850 of 2013 allowing an application for amendment of the plaint under Order VI Rule 17 and section 151 of the Code of Civil Procedure( briefly as the Code).
  1. Materials facts leading to this Rule are that the plaintiff instituted Title Suit no. 1036 of 2011, subsequently re-numbered as Title Suit no. 850 of 2013 in the first Court of Joint District Judge, Dhaka, under Section 9 of the Specific Relief Act for recovery of possession into the flat described in the schedule land of the plaint stating that Mrs. Safia Ashraf Ali wife of late Syed Ashraf Ali being the owner of the suit plot entered into an agreement with the proforma defendant nos. 3-5 for construction of multistoried building and executed registered power of attorney being deed no. 2202 dated 22-05-2003 who later proposed to transfer the suit flat to him and he agreed to purchase the same at a consideration of Tk. 9,58,500/-. Later he purchased the suit flat by a registered kabala deed no. 6981 dated 24-09-2008 and the possession was handed over to him. He has been paying rent of the flat by mutating his name and took loan for Tk.21,00,000/- from Janata Bank on 14-10-2009 by mortgaging the deed. Subsequently the defendant no.1 dispossessed him on 05-07-2011. Hence the suit.
  2. Defendant nos. 1 and 2 contested the suit by filing written statement denying all materials allegations made in the plaint.
  3. In suit, the plaintiff by an application dated 29-04-2014 sought to amend his plaint under Order VI Rule 17 read with Section 151 of the Code for incorporating some facts along with the following facts:
    1. বাদীর  আরজির ১২ নং পৃষঠার ২য় লাইনে ′′হওয়ার ′′শব্দের পর ′′টাকার′′ শব্দের পূর্বে এর বেদখলে হওয়ার ৬ মাসের মধ্যে  মোকদ্দমা  দায়ের করায় নালিশী সম্পত্তি বর্তমান বাজার মূল্য ৯,৫৮,৫০০/- টাকা অত্র মোকদ্দমার তায়দাদ করিয়া তদুপরি মোট ১৯,১৭০/- টাকা এর ৫০% ৯,৫৮৫/- ′′বাক্যটি  কর্তিত  হইয়া তদসহলে′′ ২নং বিবাদীর নামীয়  দলিলের মূল্য ২৫,৫০,০০০/- (পঁচিশ লক্ষ পন্ব·াশ হাজার) টাকা ধার্য্য করা হইল এবং স্বত্ব ঘোষণা ও খাস দখল মোকদ্দমা বিধায়  আইনের বিধান মতে সর্ব উচ্চ কোর্ঢ~ ফি ৪৬,০০০/-(ছিচল্লিশ হাজার) বাক্য গুলো  আরজিতে  প্রতিসহাপিত হইয়া  আরজি  সংশোধিত হইবে z
    2. বাদীর আরজির ১২ নং পৃষ্ঠার  ৯নং দফার ৯নং লাইনের নিচে  ′′′′ শব্দ বসিবে তৎপর নালিশী  ′′′′ তফসিলের  সম্পত্তিতে  বাদীর স্বত্ব  আছে মর্মে ঘোষণার এক ডিএ্রী দিতে  ′′বাকীটি  সংযোজিত  হইয়া আরজি  সংশোধিত হইবে এবং তৎপর  ′′′′  শব্দ  বসিবে তৎপর ২নং বিবাদী নামীয়  বিগত ০৮-০১-২০১৪ ইং তারিখে রেজিষ্ট্রিকৃত  দলিল নং  ৮৩টি ভুয়া  বে-আইনী অ~~বধ অকার্য্যকর  পণ প্রবৃওি  হীন  তন্ব·কতা  পূর্ণ  অসৎ উদ্দেশ্য প্রণোদিত  কাগজে দলিল বিধায়  উও্র  দলিলটি  বাদীর উপর বাধ্যকর নহে মর্মে   ঘোষণার  ডিএ্রী দিতে ′′  বাক্য কয়টি  আরজিতে  সংযোজিত  হইয়া  আরজি ও রেজিষ্টার  সংশোধিত হইবে z 
  4. Contesting defendants challenged the application by filing written objection stating that the proposed amendment will chance the nature and character of the suit. So such amendment cannot be entertained.
  5. After hearing the learned Judge allowed the application for amendment of the plaint by the impugned order.
  6. Feeling aggrieved the defendant nos. 1 and 2 as petitioners preferred the instant revision and obtained the present Rule.
  7. The learned Advocate appearing for the petitioners seeks to impeach the impugned order on three fold arguments :
Firstly- The plaintiffs initially instituted the suit under Section 9 of the Specific Relief Act but later he incorporated some facts of declaration of title and recovery of khas possession along with the declaration that certain deed is fraud, fraudulent and not binding upon him which virtually changed the entire nature and character of the suit.
Secondly- Relieves claimed before amendment cannot run simultaneously with that of the later relieves claimed after amendment.
Third and lastly- The learned Judge without considering such facts and law erroneously allowed the amendment which is an error of law resulting in an error in the decision occasioning failure of justice.
  1. In support of his contentions he refers the following cases :
    1. In the case of Shafiqul Islam Chowdhury (Md.) and others Vs Mustafizur Rahman and others 60 DLR(AD) 42 held:
   ″  In the instant case, the amendment sought for will not chance the character of the suit or the plaint; rather such amendment is capable of determining the real question in controversy. ″
  1. In the case of Yar Mohd. and another vs. Lakshmi Das and others AIR  1959  page -1 (Allahabad) held:
″ Specific Relief Act (1877), S. 9- Scope and object- Suit under S.9 and ordinary suit for possession- Distinction.
Possession is prima facie evidence of title and if a person who is in possession is dispossessed he has a right to claim back possession from the person who dispossesses him. In an ordinary suit of that kind if the plaintiff succeeds in establishing his title as well as possession he is bound to succeed. Even if he is unable to prove his title he can succeed on the basis of prior possession alone. But the suit can easily be defeated if the defendant succeeds in proving a good title in himself or another. In that case the presumption  in favour of the plaintiff is displaced. In such a suit, therefore, the title of both the parties can be brought in issue and can be considered by the court. A suit under S. 9 of the Specific Relief Act is however an entirely different kind of action. That section gives a special privilege to persons in possession who take action promptly. In case they are dispossessed it entitles them to succeed simply by proving (1) that they were in possession, (2) that they have been dispossessed by the defendant, (3) that the dispossession is not in accordance with law, and (4) that the dispossession took place without six months of the suit.
No question of title either of the plaintiff or of the defendant can be raised or gone into in that case. The plaintiff will be entitled to succeed without proving any title on which he can fall back upon and the defendant cannot succeed even though he may be in a position to establish the best of all titles. The restoration of possession in such a suit is however always subject to a regular title suit and the person who has the real title or even the better title cannot therefore be prejudiced in any way by a decree in such a suit. It will always be open to him to establish his title in a regular suit and to recover back possession.″
  1. The learned Advocate appearing for the opposite party no.1 submits that the proposed amendment will not change the nature and character of the suit rather the same is necessary for the purpose of determining the real question in controversy between the parties. He adds that the proposed amendment will settle the question whether during the pendency of the suit the plaintiff was dispossessed. He lastly submits that  considering such aspect  the learned Judge of the Court below allowed the proposed  amendment of the plaint, which calls for no interference by this Court.
  2. In support of his contentions he refers the following cases:
  1. In the case of Khaledur Reza Chowdhury (Md) Vs. Salcha Begum and others 2 BLC(AD) 20 held:
″ Code of Civil Procedure, (V of 1908)
Order VI rule 17
Subsequent events can be incorporated in the pleading of an earlier suit although it was stated in the later suit- An application for amendment of plaint was filed in the earlier suit for impleading the subsequent purchasers as defendants and for replacing the prayer for confirmation of possession with a prayer for recovery of possession of the suit land which was allowed by the learned Subordinate Judge but the High Court Division while disallowing the amendment of plaint on the ground that the facts of a later suit cannot be incorporated in the pleadings of an earlier suit and that the amendment sought for a malafide and it made a mountain of a molehill in writing an unnecessary lengthy judgment  on such a simple matter as the appellant still retains the full right to obtain complete relief in the earlier title suit by incorporating facts and prayers which arose out of subsequent events, no matter whether those facts and prayers were incorporated in the subsequent suit when the two suits are inextricably linked and are not suits of different nature and when the appellant wants to bring all the parties involved in original and subsequent transaction it is beyond comprehension of this Court why should any one find a malafide motive in trying to such amendment. ″
  1. In the case of Pragati General Insurance Company Limited alias Pragati Insurance Ltd and others vs. Md. Siddique Ali Mondal The Lawyers 11 A.D.C. (2005)- 927 held:
The amendment may be allowed at any stage of the proceeding before or after the trial or even after the judgment or on appeal if justice require and no blame would be attached to the party, the materiality of the amendment should always be looked at so as to decide the real controversy between the parties allowing amendment of the pleadings.
  1. In the case of Sultan Ahmed Vs. Purna Chandra Karmakar and others  28 DLR-130 held:
Amendment of the plaint can be allowed when it does not alter the averment of the plaint.
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.
Ordinarily, the decree in a suit should accord with the right of the parties as they stand at the date of its institution. But where it is shown that the original relief claimed has, by reason of subsequent  change of the circumstances, becomes inappropriate, or that  it is necessary to have the decision of the Court in the altered circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a Court to taken notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made, leave to amend may be granted under Or. VI, r. 17 for this purpose. ″
  1. In the case of Shahajadpur Central Co-operative Bank Ltd. Vs. Md. Majibur Rahman and others 18 BLD(AD) 81 held:
Order VI Rule 17
Order VI Rule 17 of the Code –provides that 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 necessary for the purpose of determining the real question in controversy between the parties. As the proposed amendment will settle the question whether during the pendency of the suit the plaintiff was dispossessed by defendant no.1 from the suit land or not it will end all pending controversies between the parties and it will not amount to a change in the nature and character of the suit. The proposed amendment is allowed.
  1. In the case of Abdul Motaleb Vs. Md. Ershad Ali and others The Lawyers 11 A.D.C.- 30 held:
The principle is that the nature and character of a suit do not change so long as the fundamental character of the suit remains the same. A suit for declaration of title, recovery of possession and/or for  partition is essentially based on a common claim of the plaintiff which may call for aforesaid different relief or relies in different situations.
  1. In the case of Janata Bank, Bogra, Vs. Saiful Islam 206 BCR-200 held:
   ″(a) Where the amendment is sought to avoid multiplicity of suits, or where the parties in the plaint are wrongly described, or where some facts are omitted from the plaint by inadvertence, or where there is a mistake in the statement of the case of action, or a bonafide omission in making the necessary averments in the plaint, or a suit is brought under a wrong Act, the amendment should be allowed.
  1. In order to appreciate their submissions we have gone through the record and given our anxious consideration to their  submissions.
  2. The point for consideration whether the impugned order  calls for interference by this Court.
  3. On going to the materials on record it transpires that it is a definite  case of the plaintiff that he was dispossessed within six months before institution of the suit. Thereby he instituted the suit under Section 9 of the Specific Relief Act for summarily relief. During pendencing of the suit he sought for amendment by incorporating some facts which relates to declaration of his title, recovery of Khas possession and declaration that the certain deed is fraud fraudulent, inoperative and not binding upon him.
  4. For the convenience of understanding the Provisions of Order VI Rule 17 of the Code reads as hereunder:
17- The Court may at any stage of the proceedings allow either party to alter on 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 of controversy between the parties.   
  1. Therefore, Order VI Rule 17 of the Code provides that the Court may at any stage of the proceedings allow either party to alter or amend  his pleadings in such manner and on such term as may be just and necessary for the purpose of determining the real question of controversy between the parties. It is pertinent to point out that if a person who is in possession is dispossessed he has right to claim back possession from the person who dispossessed him. Even if he is unable to prove his title he can succeed on the basis of prior possession alone. A suit under section 9 of the Specific Relief Act is however an entirely different kind of action. This section gives a special privilege to persons in possession who takes action promptly.  The proposed amendment are absolutely the subject-matter of regular suit. This will not end all pending controversies  between the parties and will amount to a change the nature and character of the suit.
  2. It transpires to us that proposed amendment has changed the nature and character of the suit. The proposed amendment of the plaint appears to be inconsistent, irrelevant, immaterial and contradictory of the facts of plaint. We find 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.
  3. Therefore, we hold that the proposed amendment is not at all necessary for the purpose of determining the real questions of controversies between the parties and proper adjudication of the suit. Moreover, the respective party will prove their own case by adducing evidence, at the time of trial.
In the case of Abdul Mutaleb Vs. Ershad Ali 1998 BLD (AD) 121= 4 BLC (AD) 150 held:
"Since all rules of the Court are intended to secure the proper administration of justice, it is essential that they should be made to serve and be subordinate to that purpose so that full powers of amendment may be enjoyed and, as  such, it should always be liberally exercised. The only limitation in allowing an amendment of the plaint is that the proposed amendment should not change the fundamental character and nature of the suit.  The settled law is that amendment of pleadings may be allowed at any stage of the proceedings for the purpose of determining the real questions in controversies between the parties. "
  1. This view receives support in the cases of Md. Khaledur Reza  Chowdhury Vs. Saleha Begum and others 1997 BLD(AD) 86=2 BLC(AD) 20, S.N. Roy Chowdhury Vs. A. Jabber and others 1994 BLD-229=46 DLR 273. Moyjuddin Mondal Vs. Bena Rani Das and others 45 DLR 154 and M.A. Jahangir and others Vs. Abdul Malek and others 41 DLR 389.
  2. Therefore, the learned Judge of the Court below without proper appreciating the real question of facts and law allowed the application for such amendment, thereby committed an error of law resulting in an error in the decision occasioning failure of justice.
  3. Moreover the impugned order in its entirety is not well founded in the facts and circumstances of the case. So, the grounds urged and contentions advanced by the learned Counsel for the opposite party no.1` are not the correct exposition of law and facts. However, we have gone through the decisions as referred by him. We are in respectful agreement with the principles enunciated therein but the facts leading to those cases are distinguishable to that of the instant case. Therefore, we are unable to accept his submissions. On the contrary, the submissions advanced by the learned Counsel for the petitioners prevail and appear to have a good deals of force.
  4. In the light of discussions made above and the preponderant judicial views emerging out of the authorities referred to above, we are of the view that the impugned order suffers from legal infirmities which calls for interference by this Court. Thus the Rule having merit succeeds.
  5. In the result, the Rule is made absolute without any order as to cost. The impugned order dated 08-03-2015 passed by learned Joint District Judge, Second Court, Dhaka, in Title Suit no. 850 of 2013 allowing amendment of the plaint is hereby set aside. The application for amendment dated 29-04-2014 is rejected. The suit shall proceed in accordance with law.
        The office is directed to communicate the order at once.
Ed.