Case No: Civil Appeal No. 79 of 1994
Judge: ATM Afzal ,
Court: Appellate Division ,,
Advocate: Md. Abdul Quayum,Mr. SS Halder,,
Citation: 50 DLR (AD) (1998) 148
Case Year: 1998
Appellant: Sunil Chandra Mondal and others
Respondent: Narayan Chandra Shil and others
Subject: Procedural Law,
Delivery Date: 1996-11-5
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Bimalendu Bikash Roy Chowdhury J
Sunil Chandra Mondal and others
Narayan Chandra Shil & ors
………. ………….. Plaintiff-Respondents
November 5, 1996
The Code of Civil Procedure, 1908 (V of 1908)
Ord. VI r. 17
The plaintiff could amend the plaint before the decree was passed by the trial court or in the appellate court after filing of appeal against the decree by the defendants but could not do so after entering into a compromise with the defendant appellants admitting their claim and filing a compromise petition in the appellate court to that effect. Amendment of the plaint disputing defendant appellants kabalas was wrongly allowed by the trial court after receipt of the record from the appellate court to pass a decree in terms of the compromise petition and the High Court Division was not justified in upholding the amendment ………………(9 & 10)
SS Halder, Senior Advocate, instructed by Nawab Ali, Advocate-on-Record-For the Appellants.
Abdul Quayam, Advocate, (appeared with the leave of the Court) instructed by Shamsul Haque Siddique, Advocate-on-Record—For the Respondents.
Ex-parte—For the Respondent Nos. 2, 4-7.
Not represented—For the Respondent Nos. 8-42.
Civil Appeal No. 79 of 1994.
ATM Afzal CJ.
This appeal, by leave, defendant Nos. 45-47 in a partition suit being Suit No. 74 of 1979 of the Title Suit No. 40 1983. Court of Assistants Judge, Nazirpur (then Upazila), District Pirojpur raises the short question whether the amendment of the plaint was rightly allowed by the trial Court in the facts and circumstances of the present case and whether the High Court Division was justified in uphold order of amendment in revision.
2. Material facts necessary for disposal of this appeal are that respondent No. 1 as plaintiff filed the aforesaid suit for a declaration of title and partition in respect of 0.80 acres of land as mentioned in the schedule to the plaint. The appellants as defendant Nos. 45-47 also prayed for a separate saham in respect of 5.55 acres of their purchased land on the schedule property.
3. The learned Assistant Judge decreed the suit of the plaintiff in a preliminary form on September 1986 but no saham was allotted to the appellants whereupon they preferred Title Appeal No. 145 of 1986 to the District Judge, Pirojpur. During the pendency of the appeal, plaintiff Nos. 1-7 appellants filed solenama on 13 November before the District Judge. On 6 February 1989 learned District Judge decided the appeal on, of the solenama recording an order as follows:
3. After the suit came back on remand to the trial Court following the aforesaid order, the plaintiff after taking several adjournments filed an application on 12-8-90 under Order VI rule 17 read with section 151 of the Code of Civil Procedure for amendment of the plaint alleging, inter alia, that although the plaintiffs had transferred 4.50 acres of land in favour of defendant Nos. 46-47 and 1.05 acres of land in favour of defendant No. 45, total 5.55 acres, by registered kabalas dated 14-2-81 being misguided by defendant Nos. 21 and 24, the plaintiffs did not receive any consideration for the said kabalas, that the kabalas were fraudulent, without consideration and ineffective and that defendant Nos. 45-47 had acquired no title on the basis of the said kabalas and the plaintiffs were not bound by the same. The plaintiffs sought to amend the plaint incorporating the said facts and adding a prayer that a declaration be made in respect of the said kabalas as mentioned above. The appellants raised objection to the amendment but the learned Assistant Judge, by order dated 26-11-90, allowed the amendment without assigning any reason whatsoever. The appellants made an application for reconsideration of the order allowing amendment of the plaint but the learned Assistant Judge, by his order dated 19-6-91, rejected the said application holding that the amendment as prayed for by the plaintiffs does not change the nature and character of the suit, that the defendants did not stand to suffer any prejudice thereby and that they were free to disprove the allegation of facts made by way of amendment of the plaint. The learned Assistant Judge also observed that the order allowing amendment of the plaint was not in derogation of nor in conflict with the order passed by the learned District Judge as alleged by the defendants.
4. The appellants being aggrieved by the said order moved the High Court Division in revision, Civil Revision No. 7342 of 1991, and a Single Judge, by the impugned judgment and order dated 30th August, 1993 discharged the Rule issued earlier upon merely endorsing the view of the learned Assistant Judge that the proposed amendment does not change the nature and character of the suit.
5. Leave was granted to consider, as indicated in the beginning, whether the amendment of the plaint was rightly allowed in the facts and circumstances of the case.
6. It is true that court may at any stage of the proceeding allow a party to alter or amend his pleading 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 questions in controversy between the parties. But the whole question in the present case is whether, having regard to the stage of the proceeding, there was any scope for allowing the plaintiffs to amend their plaint. It has been noticed that the appellants prayed for a separate saham in the suit in respect of their purchased land ie 5.55 acres out of the schedule land which was not decreed whereupon they took an appeal to the District Judge. In the appellate Court plaintiffs No.1-7 and the appellants filed a solenama on the basis of which the suit was ordered to be decreed and it was remitted to the trial Court for the said purpose. It is found from the terms of the solenama that the plaintiffs clearly admitted the kabalas dated 31-10-81 and 14-2-81 by which 1.05 and 4.55 acres of land were transferred respectively to defendant Nos. 45 and 46-47(appellants) on receipt of consideration and they further admitted that possession of the said land was transferred to the appellants. Since the appellants were not given a separate saham as prayed for by them, it was agreed that they will be entitled to the same, the appeal will be allowed and the decree will be amended in the main suit accordingly. It was further agreed that the solenama will form part of the decree.
7. The appellate Court itself could amend the decree in terms of the solenama but it has been seen that the suit was remitted to the trial Court for passing a decree in terms of the solenama or if necessary in terms of a new solenama to be filed by the parties in keeping with the solenama already filed in the appellate Court. As long as the solenama remained the plaintiffs could not be allowed to say that the kabalas in favour of the appellants were without any consideration or fraudulent and an issue in that behalf could not be permitted to be raised for decision. The trial Court and, it is all the more regrettable that, the learned Judge of the High Court Division as well failed to notice that the amendment of the plaint could not be allowed at that stage of the proceeding when the appellate Court had remitted the matter to the trial Court only for passing a decree in terms of the solenama already filed or a fresh solenama to be filed by the parties. The plaintiffs could not be permitted to open the new issue (by amendment) for decision in the suit after having already entered into compromise admitting the claim of the appellants.
8. Abdul Quayam, learned Advocate for respondents No.1 and 3 appearing with the leave of the Court, has frankly conceded that the amendment of the plaint at this stage of the suit cannot be legally and properly allowed whatever may be the grievance of the plaintiffs in respect of the kabalas in favour of the appellants. They could not dispute the kabalas without challenging the solenama and the order of the learned District Judge remitting the suit to the trial Court for passing decree on the basis of the said solenama.
9. A simple matter has been dragged to this court just for a lack of perception. Neither any law nor any difficult question of interpretation is involved in the matter. It was only a matter of common sense that the plaintiffs had missed the bus for raising any dispute with regard to the defendants kabalas after the compromise. Further, it should have occurred to the Courts that the plaintiff had opportunity to amend the plaint while the suit and the appeal were pending and that having not been availed of the prayer for amendment should have been refused on that ground alone as being an after thought.
10. We find no difficulty in holding that the amendment of the plaint was wrongly allowed and the High Court Division was far from justified in upholding the order of amendment.
The appeal is, accordingly, allowed with cost.