High Court Division :
(Civil Revisional Jurisdiction)
Md Rais Uddin J
Binoda Sundori Pal and another……..Petitioners
vs
Chandan Chandra Pal and others … Opposite-Parties *
Judgment September 14th, 2014.
Code of Civil Procedure (V of 1908)
Section 107(2)
Order VI, rule 17 and
Order XLI, rule 3(3)
At any stage of the proceeding of the suit any party can pray for amendment of the pleadings even at the appellate stage.
On reading of the application for amendment of the plaint it seems to me that the proposed amendment is necessary for determining the real question in controversy and the same will not change the nature and character of the suit inasmuch as the amendment introduces the facts of registered deed as well as the Kabuliat. ……..(12 & 11)
Zakir Hossain Bhuiyan, Advocate-For the Petitioners.
PC Guha, and Samiran Mallick, Advocates-For the Opposite-Parties.
Judgment
This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and order dated 31-7-2012 passed by the learned Additional District Judge, plaint under Order VI, rule 17 read with Section 107(2) and Order XLI, rule 3(3) of the Code of Civil Procedure in Title Appeal No.119 of 2010, should not be set-aside.
2. The relevant fact giving rise to this Rule, in short, is that the present petitioners .as plaintiffs instituted suit, for declaration of title and recovery of possession against the opposite-parties impleading them as defendants. The defendant Nos. 1-3 contested the suit by filing written statement denying the material allegations made in the plaint.
3. Both the parties adduced evidence and exhibited their documents to prove their respective cases.
4. The learned judge of the trial Court after hearing the parties and considering the materials on record dismissed the suit by his judgment and decree dated 6-6-2010. Against the said judgment and decree the plaintiffs preferred appeal. In the appeal the appellants filed an application under Order VI, rule 17 read with Section 107(2) and Order XLI, rule 3(3) of the Code of Civil Procedure for amendment of the plaint. The defendant-respondents filed written objection against the application for amendment of plaint on 27-3-0-12.
5. The learned Additional District Judge, 1st Court, Brahmanbaria after hearing the parties and considering the materials on record rejected the application for amendment by his judgment and order dated 31-7-2012.
6. Feeling aggrieved the appellants as petitioners moved this Court and obtained the instant Rule.
7. Mr Zakir Hossain Bhuiyan, the learned advocate appearing for the. petitioners has placed the Revisional Application, pleadings, amendment application, impugned judgment and order and submits that the learned Additional District Judge committed an error of law in rejecting the amendment application’ without considering that an amendment can be allowed at any stage of the suit and the appeal is also continuation of the suit and the law does not impose any bar to claim as many roots to their title as they want and even if they are conflicting with each other. He further submits that by the proposed amendment the real question in controversy between the parties were brought to the notice of the Court for complete and effectual adjudication. He lastly submits that the nature and character of the suit will not change by the proposed amendment and the impugned order is non-speaking one.
8. Mr PC Guha, the learned advocate for the opposite parties submits that by the proposed amendment the plaintiffs’ introduce new cause of action claiming the suit land by way of purchase and his title by adverse possession and, as such, the Rule should be discharged.
9. In order to appreciate the submissions made by the learned advocates for the parties, I have gone through the Revisional application, pleadings, impugned judgment and order of the appellate Court below and relevant law very carefully.
10. Now, the question calls for consideration whether the learned Judge of the appellate Court below committed any error of law resulting in an error in the decision occasioning failure of justice in passing the impugned judgment and order rejecting the application for amendment.
11. On perusal of the record it appears that the appellate Court without assigning any reason whatsoever rejected the application for amendment of the plaint. On reading of the application for amendment of the plaint it seems to me that the proposed amendment is necessary for determining the real question in controversy and the same will not change the nature and character of the suit inasmuch as the’ amendment introduces the facts of registered deed as well as the Kabuliat.
12. The proposition of law by now well settled that at any stage of the proceeding of the suit any party can pray for amendment of the pleadings even at the appellate stage.
13. in this case I find nothing on record to hold that proposed amendment change the fundamental character· of the suit. Besides this the impugned order appears to be incompetent and non-speaking one.
14. In view of the discussions and reasons stated above, I am constrained to hold that the learned Additional District. Judge erred in law in passing the impugned judgment and order without applying his judicial mind properly into the facts and circumstances to the case and law bearing on the subject and the same has resulted in an error of important question of law in the impugned decision occasioning failure of justice. Thus, I find merit in the Rule.
15.In the result, the Rule is made absolute.
16.The impugned judgment and order dated 31-7-2012 passed by the learned Additional District Judge, 1st Court, Brahmanbaria rejecting the application for amendment of plaint under Order VI, rule 17 read with Section 107(2) and Order XLI, rule 3(3) of the Code of Civil Procedure in Title Appeal No. 119 of 2010, are set-aside and the application for amendment of the plaint is, accordingly, allowed. The parties are at liberty to adduce evidence including additional statement, if they, so adviced.
17. However, there will be no order as to costs.
18. The order of stay granted earlier by this Court stands vacated.
Communicate the order at-once.
(Civil Revisional Jurisdiction)
Md Rais Uddin J
Binoda Sundori Pal and another……..Petitioners
vs
Chandan Chandra Pal and others … Opposite-Parties *
Judgment September 14th, 2014.
Code of Civil Procedure (V of 1908)
Section 107(2)
Order VI, rule 17 and
Order XLI, rule 3(3)
At any stage of the proceeding of the suit any party can pray for amendment of the pleadings even at the appellate stage.
On reading of the application for amendment of the plaint it seems to me that the proposed amendment is necessary for determining the real question in controversy and the same will not change the nature and character of the suit inasmuch as the amendment introduces the facts of registered deed as well as the Kabuliat. ……..(12 & 11)
Zakir Hossain Bhuiyan, Advocate-For the Petitioners.
PC Guha, and Samiran Mallick, Advocates-For the Opposite-Parties.
Judgment
This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and order dated 31-7-2012 passed by the learned Additional District Judge, plaint under Order VI, rule 17 read with Section 107(2) and Order XLI, rule 3(3) of the Code of Civil Procedure in Title Appeal No.119 of 2010, should not be set-aside.
2. The relevant fact giving rise to this Rule, in short, is that the present petitioners .as plaintiffs instituted suit, for declaration of title and recovery of possession against the opposite-parties impleading them as defendants. The defendant Nos. 1-3 contested the suit by filing written statement denying the material allegations made in the plaint.
3. Both the parties adduced evidence and exhibited their documents to prove their respective cases.
4. The learned judge of the trial Court after hearing the parties and considering the materials on record dismissed the suit by his judgment and decree dated 6-6-2010. Against the said judgment and decree the plaintiffs preferred appeal. In the appeal the appellants filed an application under Order VI, rule 17 read with Section 107(2) and Order XLI, rule 3(3) of the Code of Civil Procedure for amendment of the plaint. The defendant-respondents filed written objection against the application for amendment of plaint on 27-3-0-12.
5. The learned Additional District Judge, 1st Court, Brahmanbaria after hearing the parties and considering the materials on record rejected the application for amendment by his judgment and order dated 31-7-2012.
6. Feeling aggrieved the appellants as petitioners moved this Court and obtained the instant Rule.
7. Mr Zakir Hossain Bhuiyan, the learned advocate appearing for the. petitioners has placed the Revisional Application, pleadings, amendment application, impugned judgment and order and submits that the learned Additional District Judge committed an error of law in rejecting the amendment application’ without considering that an amendment can be allowed at any stage of the suit and the appeal is also continuation of the suit and the law does not impose any bar to claim as many roots to their title as they want and even if they are conflicting with each other. He further submits that by the proposed amendment the real question in controversy between the parties were brought to the notice of the Court for complete and effectual adjudication. He lastly submits that the nature and character of the suit will not change by the proposed amendment and the impugned order is non-speaking one.
8. Mr PC Guha, the learned advocate for the opposite parties submits that by the proposed amendment the plaintiffs’ introduce new cause of action claiming the suit land by way of purchase and his title by adverse possession and, as such, the Rule should be discharged.
9. In order to appreciate the submissions made by the learned advocates for the parties, I have gone through the Revisional application, pleadings, impugned judgment and order of the appellate Court below and relevant law very carefully.
10. Now, the question calls for consideration whether the learned Judge of the appellate Court below committed any error of law resulting in an error in the decision occasioning failure of justice in passing the impugned judgment and order rejecting the application for amendment.
11. On perusal of the record it appears that the appellate Court without assigning any reason whatsoever rejected the application for amendment of the plaint. On reading of the application for amendment of the plaint it seems to me that the proposed amendment is necessary for determining the real question in controversy and the same will not change the nature and character of the suit inasmuch as the’ amendment introduces the facts of registered deed as well as the Kabuliat.
12. The proposition of law by now well settled that at any stage of the proceeding of the suit any party can pray for amendment of the pleadings even at the appellate stage.
13. in this case I find nothing on record to hold that proposed amendment change the fundamental character· of the suit. Besides this the impugned order appears to be incompetent and non-speaking one.
14. In view of the discussions and reasons stated above, I am constrained to hold that the learned Additional District. Judge erred in law in passing the impugned judgment and order without applying his judicial mind properly into the facts and circumstances to the case and law bearing on the subject and the same has resulted in an error of important question of law in the impugned decision occasioning failure of justice. Thus, I find merit in the Rule.
15.In the result, the Rule is made absolute.
16.The impugned judgment and order dated 31-7-2012 passed by the learned Additional District Judge, 1st Court, Brahmanbaria rejecting the application for amendment of plaint under Order VI, rule 17 read with Section 107(2) and Order XLI, rule 3(3) of the Code of Civil Procedure in Title Appeal No. 119 of 2010, are set-aside and the application for amendment of the plaint is, accordingly, allowed. The parties are at liberty to adduce evidence including additional statement, if they, so adviced.
17. However, there will be no order as to costs.
18. The order of stay granted earlier by this Court stands vacated.
Communicate the order at-once.
