Admission, ambit of-Decree on admission- Written objection filed in an interlocutory matter would not be a part of the pleading of the parties in the suit but if there is an admission in the written objection it would be regarded as an admission. The expression "or otherwise" under rule 6 of Order. XII would empower the Court to see the admission made elsewhere in the proceeding during the trial and should not be confined only to written statement. The decree, as passed on admission made otherwise than in written statement, is in accordance with law and need not be interfered with in exercise of revisional jurisdiction. A Elahee & Co vs MM Aziz 44 DLR 131.
Code of Civil Procedure [V of 1908]
Order 6 Rules 1, 14 and 15-Pleading application for withdrawal of the suit was required to be
Whether the signed by the plaintiff- respondent. Whether the same also was required to be verified by her or supported by an affidavit and whether the statements of the plaintiff was needed to be recorded before passing the order allowing her to withdraw the suit with permission to sue afresh.
The Appellate Division observed that Rule 14 of Order VI of the Code has clearly provided that every pleading shall be signed by the party and his pleader (if any). The rule also provides that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf. Rule 15(1) of Order VI has provided that save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (Sub-rules (2) and (3) of rule 15 are not relevant for the present purpose). And according to rule 1 of Order VI "pleading" shall mean plaint or written statement. So, by stretch of imagination, the no application for withdrawal of a suit can be treated or termed as pleading. Therefore, the Appellate Division does not see the requirement of verification in the application for withdrawal of a suit as found by the learned Additional District Judge and the learned Judge of the High. Court Division. In this regard, it may be also stated that the applications/petitions which would require affidavit in support of the prayer made therein have been specifically mentioned in the Code such as, prayer for attachment before judgment under Order XXVIII, rule 5, prayer for temporary injunction under order XXXIX, rule 1 of the Code. But nowhere in Order XXIII, sub-rules (1) and (2) of rule 1, which have dealt with withdrawal of suit or abandonment of part of claim the phraseology "affidavit" has been referred to or mentioned, when the Code is silent about the necessity or requirement of any verification or affidavit to make a prayer for withdrawal of a suit, the Court could not impose such a condition to file an application for withdrawal of a suit. So, the Appellate Court and the High Court Division were apparently wrong in finding that the application for withdrawal of the suit in Partition Appeal No. 13 of 1964 was defective as the same was not verified by the plaintiff or supported by any affidavit. Md. Abdur Rahman Pramanik and others Vs.- Most. Alefa Bewa and others (Civil) 15 ALR (AD) 211-221
Order VI rules I & 2 and Order VII rule I-
The purpose of pleadings is to pinpoint the matters of controversy between the contending parties for enabling them to meet their respective claims. If at the trial the plaintiff fails to prove some of his allegations, that does not necessarily mean that the suit shall fail. The fate of the suit depends on the overall evidence and materials on record. Sonali Bank vs Hare Krishna Das and others 49 DLR 282.
Order VI rule 2-
It is the substance and not the form of the plaint which is to be looked and considered and Mufussil Court's pleadings are to be construed liberally. Zamir Uddin Ahmed vs Jiaul Huq and others 49 DLR 622.
Order VI rule 2, Order XVIII rule 17-
The Code has given enabling power to the Court to recall a witness. All the evidence and documents under the possession of the plaintiff to be relied upon at the time of hearing of the suit need not be mentioned in the pleading. Registrar (Deputy Secretary) vs Sahrab Jan and others 48 DLR 214.
Code of Civil Procedure [V of 1908]
Order 6 Rule 2
Order VI Rule 2 of the Code of Civil Procedure, which does not require the names of witnesses to be specified in the plaint.
The Appellate Division held that since the appellate Court did not reverse the finding of the trial Court with regard to the amalnama and dakhila, they stand as evidence of title of the defendants. In this regard the S.A. record in the name of the defendants is consonant with the amalnama and dakhila, both issued by the landlord The reasons attributed by the appellate Court for not believing the veracity of the amalnama and dakhilas, namely that they were not registered or written on stamp paper or on printed form, is not tenable, since there is no legal necessity for those documents to be in the form mentioned by the appellate Court. The reasons given by the appellate Court for disbelieving the documents are flimsy and not tenable. Another reason given by the appellate Court for disbelieving those documents is that the name of the witnesses deposing in support of those documents was not mentioned in the plaint. However, such a requirement is not contemplated by Order VI Rule 2 of the Code of Civil Procedure, which does not require the names of witnesses to be specified in the plaint. The observation of the appellate Court is, therefore, contrary to law. Asgor Ali and others -Vs. Noorjahan and others (Civil) 21 ALR (AD) 46-50
Order VI rule 5-
Purpose of filing further and better statement is to elucidate the pleadings and not to amend the same by adding new claim or defence which was not in pleading. Fatick Chandra Dey and others vs Dipok Kumar Dey and others 556.
Order VI rule 7-
The trial Court allowed the plaintiff to introduce a new story (in his deposition and by production of documents) without amending the plaint itself-Not permissible in law. Ranjit Kumar Rakshit vs Sudhir Kumar Chowdhury 38 DLR 39.
Code of Civil Procedure [V of 1908]
Order 6 rule 7-It was not the case of the defendant that the suit land was acquired by the government for the Roads and High Ways Department. Defendant without amendment of pleading introduced a new fact in his deposition and the learned judge accepted the departure from the pleading and made out a third case that the suit property was possibly acquired by the Roads and High Ways Department which is beyond the pleading of the defendant, which is not permissible.
The High Court Division held that the sole defendant government in their written statement neither claimed that the suit land was acquired nor disclosed the same in their defence case but the learned Subordinate Judge opined that the suit property was possibly acquired by the Roads and High ways Department which is violation of the settled principle of law as per Order 6 rule 7 of the Code of Civil Procedure that either of the parties cannot raise any new ground of claim or contain any allegation of fact inconsistent with the pleadings of them. It was not the case of the defendant that the suit land was acquired by the government for the Roads and High Ways Department. Defendant without amendment of pleading introduced a new fact in his deposition and the learned judge accepted the departure from the pleading and made out a third case that the suit property was possibly acquired by the Roads and High Ways Department which is beyond the pleading of the defendant. Moreover, the burden of proof of this fact lies upon the government, which they failed, but the trial Court shifted the burden upon the plaintiffs which is not permissible. Using the word "possibly" indicates that the trial Court was not sure as to acquisition of the land that means its judgment was passed on surmise and conjecture. Md. Mofazzal Hossain and others -Vs- Bangladesh, represent-ted by the Deputy Commissioner, Gazipur (Civil) 16 ALR (HCD) 273-279
Order VI rule 7-
New plea-The court will not allow either party to make any departure from the earlier pleadings set forth in the plaint or written statement. Bangladesh vs Md Aslam 44 DLR89.
Order VI rule 7-
The departure in the evidence from the plaint has not been of such a dimension that the defendants were unfairly taken by surprise. Both the parties had all opportunities to lay before the court all their evidence respecting title and possession of the suit land. In such circumstances the operation of Order VI rule 7 of the Code will not come in. Kochi Mia @ Khocha Mia vs Suruj Mia being dead his heirs Md Fazlur Rahman and others 51 DLR (AD) 57.
Order VI rules 14 & 17-
Defect or irregularity in the matter of signing the plaint and the verification to the plaint can be cured by amendment of the plaint. Doon Valley Rice Limited vs MV Yue Yang and others 48 DLR 531.
Order VI rule 14 & Order XIX rule 1-
Companies are not exclusively governed by the provisions of Order XIX rule 1 in the matter of signature on plaint. They are also governed by the provisions of Order VI rule 14. A company has alternative choice. It can follow Order XIX rule 1 or Order VI rule 14. It cannot orally authorise a person to sign a plaint-it is governed by its Articles of Association in such matters. It is not condition of verification of plaint that it should be done by the holder of a power of attorney. Anath Bandhu Guha & Sons Ltd vs Babu Sudhangshu Shekhar Halder 42 DLR (AD) 244.
Order VI rule 17-
Amendment of pleadings may not be allowed as would alter the nature of suit, etc-However in certain circumstances the court may allow an amendment in what is not generally done. Md Nurul Islam vs Abdul Malek 38 DLR (AD) 115.
Order VI rule 17-
0riginal prayer in the plaint was for declaration of the partition deed as null and void and fraudulent. By an amendment prayer later on it sought for cancellation of the deed as being fraudulent and void.
Held: Amendment prayer should be allowed as cancellation of the document is a natural sequence when it is found to be product of fraud-Question of limitation not relevant. Jarina Khatun vs Pulin Chandra Das 37 DLR (AD) 67.
Order VI rule 17-
Question arose as to whether amendment of pre-emption application introducing a new claim for pre-emption on the basis of contiguous ownership of the disputed lands would materially alter the nature and character of the proceeding, particularly when it is barred by limitation.
Held: As a rule no amendment is allowed where its effect will take away any legal right, which might have accrued by lapse of time. Here the transferee has failed to show what legal right had accrued to him which will be washed away by allowing the amendment-Then again as a rule the Court refused an amendment if the amendment introduces a totally new and inconsistent case which may require further evidence to be adduced by the opponent-In this case no legal right accrued to the respondent except the right of rateable pre-emption-The amendment is allowedand it will relate back to the date of the institution of the pre-emption case.
Amendment pleadings under Order VI, rule 17 CPC-Special limitation prescribed under section 96 of the State Acquisition and Tenancy Act-The question of limitation may arise in two cases (i) whether the claim to be included was barred on the date of the institution of the suit, (ii) whether the claim is barred on the date of the prayer for amendment-In this case the amendment will relate back to the date of the institution of the case. Sree Shushil Ranjan Dutta vs Al-Haj Moulvi Idris Mia 42 DLR (AD) I I 0.
Order VI rule 17-
Amendment of pleading at the appellate stage in the interest of justice and for determination of the real controversy between the parties permissible. Bimal Kanti Biswas vs Custodian of Enemy Property 42 DLR 227.
Order 6 Rule 17 of CPC
On consideration of the evidence on
record, dismissed the suit and the High Court Division, without arriving at the
finding that for complete adjudication of the dispute further evidence is
necessary passed the impugned order which has the effect of permitting the
plaintiff of fill up the lacuna in all aspect and the High Court Division also
did not at all consider that the relief claimed by way of amendment is barred
by limitation. and is also beyond the ambit of Order 6 Rule 17 CPC. Government
of the People's Republic of Bangladesh vs. Md. Abdur Rob and others (Md.
Tafazzul Islam J)(Civil) 4ADC 412
Order VI rule 17-
Amendment of pleading -Mere change in the relief does not change the nature of the suit. Nuruddin Ahmed vs Zafarullah Siddique 42 DLR 246.
Order VI rule 17-
Amendment of written statement-The proposed amendment will not change the fundamental character of the defence case. The Court fell into error of law occasioning failure of justice in rejecting the application for amendment. Md Naiyum vs Rahima Khatun 42 DLR 523.
Order VI rule 17-
Courts are always inclined to allow amendment so as to enable the parties to bring all points relating to a dispute between the parties before the Court in order to avoid multiplicity of proceedings. Sahimon Bew al vs Safiruddin Mohammad 38 DLR 265.
Order VI rule 17-
Amendment of plaint can be made 'at any stage of the proceeding' which includes proceeding even at the appellate stage. MA Jahangir vs Abdul Malek 41 DLR 389.
Order VI rule 17-
Merely because an amendment is new from what has been stated in the plaint, it cannot be a ground for refusal of amendment of the plaint unless it changes the character of the suit. MA Jahangir vs Abdul Malek 41 DLR 389.
Order VI rule 17-
Amendment of the election petition made a complete change in the nature and character of the election petition. Zulfiquar Ali Bhutto vs Bangladesh-11 DLR 379.
Order VI rule 17-
Election Tribunal has no power to allow amendment of the election petition so as to relate back to the date of filing of the election petition. Thus although the Election Tribunal has the limited jurisdiction to allow amendment of the election petition, it has no power to allow any amendment, so as to relate back to the date of filing of the election petition. It is so because subrule ( 1) of Rule 44 prescribed the limitation of 30 days next after the publication of the result in the official Gazette to file an election petition and sub-rule (5) specifically provides that an election petition shall set forth the ground on which the petition is fixed and the relief sought. In other words, the ground for the election petition and the relief sought must be stated within the period of limitation. Zulfiquar Ali Bhutto vs Bangladesh 41 DLR 379.
Order VI rule 17-
Amendment of plaint allowed by the trial Court as a matter of course and without satisfying itself whether the same is necessary for determining the controversy between the parties is to be discarded. Ismail Mohammad vs Motasim Ali Chowdhury 45 DLR 123.
Order VI rule 17-
Amendment of pleadings -Plaintiff filed an application for amendment of the plaint that the defendant entered into the property in 1956. The application ought to have been allowed as it could have been disposed of on the available evidence on record and would not have prejudiced the defendant in any manner. Abdur Rabbani vs Aminul Haque Sowdagar 43 DLR (AD) 19.
Order VI rule 17-
The defendant traces his possession in the property since 1948. Documentary evidence of payment of rent starts from 1951. With the passage of time, question of limitation and accrual of vested rights step in. The Court correctly rejected the application for amendment of plaint. Abdur Rabbani vs Aminul Haque Sowdagar 43 DLR (AD) 19.
Order VI rule 17-
Amendment of plaint-Extent of amendment that can be allowed-by the proposed amendment the plaintiff seeks to introduce a new case of acquisition of his title to the suit property by altering his earlier pleading. A plaintiff can set up as many roots of title as possible and they may be even conflicting and inconsistent. Thus the major ground as aforesaid of the trial Court for refusing the amendment is not tenable in law. So also the other two minor grounds as the amendment was proposed before the trial and its obstruction to normal rule of disposal can be compensated by costs to the other side. Plaintiff's application dated 2.8.92 seeking amendment of the plaint is allowed on condition that the plaintiff should pay a cost of Tk. 2,000.00 to the contesting defendants within two months from the date of receipt of this order by the trial Court, in default the application shall stand rejected. Samarendra Nath Roy Chowdhury vs Abdul Jabbar 46 DLR 273.
Order VI rule 17-
Amendment of pleading-Introduction of a relevant fact by way of amendment for determining the real question in controversy should not be refused. Moyezuddin Mondal vs Bena Rani Das 45 DLR 154.
Order VI rule 17-
Amendment of plaint-Plea of res judicata- When in a previous suit a party of a subsequent suit was impleaded in his representative capacity as an heir of the original tenant and it was not open to him to raise any defence in his personal capacity he can subsequently raise objection and his hereditary nature in the previous suit does not operate as res judicata. Amendment of the plaint in the subsequent suit to the effect that the decree made in the former suit arising out of revenue sale, wherein the plaintiffs were impleaded in personal capacity, was null and void is proper and just for effective adjudication of issues between the parties. Kutub Uddin Bhuiyan vs Sakhina Bibi 43 DLR 601.
Order VI rule 17-
Rerum of plaint in a matter relating to persons in the service of the Republic-Amendment replacing a cause of action, after it had ceased to exist, by a new cause of action so as to change the nature of the suit and the cause of action will not be allowed, and, if allowed, cannot relate back to the date of filing the suit. Furthermore, the jurisdiction of the civil Court having been vested in the Administrative Tribunal by the promulgation of special statute the jurisdiction of civil Court in respect of Bank employees had been ousted, and in that view of the matter, the plaint was rightly returned by the civil Court for presentation to the proper Tribunal having jurisdiction. Mansur Ali vs Janata Bank 43 DLR 394.
Order VI rule 17-
Amendment of plaint—Where the plaintiff institutes a suit for permanent injunction and obtains temporary injunction but subsequently he is dispossessed from the suit property, and he then merely seeks amendment of the plaint for restoration of the property under Order XXXIX, rule 2 CPC such amendment cannot be allowed without a prayer for declaration of title and recovery of possession, in as much as, the same will change the nature and character of the suit. RAJUK vs Mir Nousher Ali 46 DLR 134.
Order VI rule 17-
Amendment-When opportunity for additional written statement not necessary-The amendment was of formal nature changing the name of the plaintiff bank following its de-nationalisation. Normally when an application for amendment of plaint is allowed, the defendant is given a chance to file additional written statement but the amendment being of formal nature the judge has committed no error of law in not giving opportunity for filing additional written statement. Mozammel Haque vs Uttara Bank 43 DLR 498.
Order VI rule 17-
Amendment replacing a cause of action, after it had ceased to exist, by a new cause of action so as to change the nature of the suit and the cause of action will not be allowed, and if allowed, cannot relate back to the date of filing the suit. Furthermore, the jurisdiction of the civil Court having been vested in the Administrative Tribunal by the promulgation of special statute the jurisdiction of civil Court in respect of Bank employees has been ousted, and in that view of the matter, the plaint was rightly returned by the civil Court for presentation to the proper Tribunal having jurisdiction. Monsur Ali vs Janata Bank 43 DLR394.
Order VI rule 17-
In the amendment certain specific boundary has been incorporated keeping the other averments of the plaint intact. Such amendment has not changed the character of the plaint. JN University vs Mujibur Rahman 43 DLR 282.
Order VI rule 17-
Prayer for amendment of pre-emption application by way of addition of parties after the pre-emptors were earlier allowed exemption from such addition. The Assistant Judge does not exercise his discretion in a judicial manner by refusing addition of the same parties, when the pre-emptor appears to have averred that on a wrong advice they prayed for exemption. Mojibur Rahman Sarker vs Shafiqul Islam 43 DLR 313.
Order VI rule 17-
Amendment of a plaint and amendment of a written statement are not governed by exactly the same principle. The defendant would not be allowed to introduce an alternative and completely different kind of defence which will have the effect of introducing a new controversy between the parties. Abul Kalam Azad vs Sunhar Ali 46 DLR (AD) 130.
Order VI rule 17-
Before allowing amendment or alteration of the pleading the Court must come to a finding that such amendment or alteration is necessary for determining the real question in controversy. The order of the trial Court passed without such finding suffers from legal infirmity and the matter is sent back for rehearing. Sri Kirlish Chandra Dev vs Begum Sufia Akhtar 46 DLR 313.
Order VI rule 17-
Amendment of plaint - When it means no substitution of one cause of action for another- The impugned transfer of shares of the plaintiff having taken place during the period of insanity of the plaintiff, it is necessary to dispose of the same within the framework of the suit for declaration. Insanity being the foundation of the suit plaintiff can legitimately combine in one suit all the alleged illegalities committed by the appellant in the matter of transfer of the shares in question and other properties. This is not substitution of one cause of action for another, but a consolidation of all wrongs allegedly done to the plaintiff. Afruz Miah vs Al-haj Md Siraj Miah 43 DLR (AD) 89.
Order VI rule 17-
Amendment of plaint - Conflict of decisions-If the plaintiff had to. file separate suits challenging different alienations during the period of his insanity, it will involve proving insanity in each suit which might lead to conflict of decisions. This is least desirable. Afruz Miah vs Al-haj Md Siraj Miah 43 DLR (AD) 89.
Order VI rule 17-
Amendment of plaint-A corollary to addition of party-the plain tiff added 3 other defendants as parties after filing of the suit and prayed for relief The addition of parties is corollary to the amendment sought for. It in no way changes the complexion of the suit. Afruz Miah vs Al-haj Md Siraj Miah 43 DLR (AD) 89.
Order VI rule 17-
Amendment of plaint - Delay- Appellants having not filed written statement in the suit the delay of 10 months in seeking amendment after the knowledge of transfer of the shares in question is not material as it will not prejudice them in any way. Afruz Miah vs Al-haj Md Siraj Miah 43 DLR (AD) 89.
Order VI rule 17-
The proposed amendment would settle the question whether during the pendency of the suit the plaintiff was dispossessed or not. This will end all pending controversies between the parties and will not amount to a change in the nature and character of the suit. Shahajadpur Central Co-operative Bank Ltd vs Majibur Rahman and others 50 DLR (AD) 86.
Order VI rule 17-
In the appellate Court parties filed a solenama on the basis of which the suit was remitted to the trial Court for the said purpose-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. Sunil Chandra Mondal and others vs Narayan Chandra Shil & others 50 DLR (AD) 148.
Order VI rule 17-
Instead of furthering the cause of justice by allowing the plaintiff-appellant a full opportunity to place his case against all the parties involved by stating all the facts that he wants to allege against them and by seeking all possible remedies against them, the High Court Division has given a queer look at the plaintiff and has found him lacking in bonafides in whatever he does. After all, he is seeking full justice from a Court oflaw and he wanted to bring all the parties involved in the original and subsequent transactions. Why should anyone find a malafide motive in trying to do just that, is beyond our comprehension. Khaledur Reza Chowdhury (Md) vs Saleha Begum and others 48 DLR (AD) 209.
Order VI rule 17-
The proposed amendment introducing new facts and subsequent cause of action different from those made in the plaint if allowed condoning the delay will change the nature and character of the suit. Amendment was therefore rightly refused. Abdul Wadud Contractor and another vs Nazir Ahmed and others 48 DLR (AD) 120.
Order VI rule 17-
In a suit for ejectment of licensees the prayer for declaration of plaintiffs title is rather necessary to constitute the suit in a complete legal form and for final adjudication of the matter in dispute. The amendment for such a declaration is merely an additional relief in proper perspective and necessary for appropriate relief. Syed Monirul Huda Chowdhury vs Fouzia Chowdhury and others 47 DLR JO.
Order VI rule 17-
Court can take into account subsequent event necessitating amendment by· addition of new relief that may be allowed to do complete justice. Nazrul Islam Majumder (Md) vs Tahamina Akhtar alias Nahid and another 47 DLR 235.
Order VI rule 17-
Mere delay in filing the application for amendment of the plaint cannot be a ground to hold that the application for · amendment is malafide and the applicant is not entitled to the relief prayed for. Abdus Salam vs Karban Ali and another 48 DLR 372.
Order VI rule 17-
The Court is directed to hear afresh the amendment application and the objection thereto as the impugned order allowing amendment of plaint does not show it was done on proper consideration of the same. Begum and Company Ltd vs Rupali Bank and others 48 DLR 23.
Order VI rule 17-
Once an amendment of the plaint is allowed the amendment will relate back to the date of the institution of the suit. Doon Valley Rice Limited vs MV Yue Yang and others 48 DLR 531.
Order VI rule 17-
Law 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 cannot be grounds for rejecting an application for amendment. Tohfa Khatun and others vs Moulavi Mukhilisur Rahman and others 49 DLR 315.
Order VI rule 17-
A consideration whether an amendment would have the effect of getting out of an admission of a party in his pleadings to the prejudice of the contesting party is absolutely irrelevant. Tohfa Khatun and others vs Moulavi Mukhilisur Rahman and others 49 DLR 315.
Order VI rule 17-
Amendment of plaint should not be refused unless {a) the plaintiffs suit is wholly displaced by amendment {b) the amendment takes away right accrued by lapse of time { c) the amendment introduces a different, new and inconsistent case and the amendment converts the suit into a different and inconsistent character. Norendra Chandra Dash and others vs Md Solaiman Chowdhury & ors 51 DLR 81.
Order VI rule 17-
A party is expected to raise any dispute of the nature in the appeal instead of rushing to this court thereby delaying disposal of the election petition. Nazem Uddin vs Election Tribunal and others 52 DLR 189.
Order VI rule 17-
By amendment for the 3rd time the plaintiff sought to show his purchased land to be 0.1125 acres. But there was no necessity of allowing such amendment to resolve whether the defendant had dispossessed the plaintiff from the suit land, which the plaintiff by way of 2nd amendment claimed to be 0.03 acres out of his purchased land. Motasim Ali Chowdhury vs Md Ismail 53 DLR (AD) 74.
Order VI rule 17-
Amendment only in the prayer portion of the plaint following direction for taking fresh evidence in order to prove 'Salishnama', the basis of plaintiff's clai_m calls for no interference. Abdul Khaleque Gazi and others vs Abdul Aziz Mollah and others 53 DLR (AD) 82.
Order VI rule 17-
If the application is found to be fit to allow the plaintiffs to add the prayer for confirmation of possession on payment of proper court fees then it can also allow the defendants to file additional written statement. There may then be a necessity for additional evidence to be adduced by the parties for determining the real question in controversy. Jarina Khatun & others vs Gani Howlader & others 53 DLR 53.
Order VI rule 17-
If the proposed amendment is allowed, the amendment will go back to the time of institution of the suit, thereby, giving a new life to the time-barred claim of the plaintiff, depriving the opposite party of a valuable legal right accrued to them by lapse of time. Such a course is clearly unjust. Gold Topps Co Hong Kong and others vs TCB and another 53 DLR 280.
Order VI rule 17-
An application for amendment of the plaint should not be rejected on the ground that the preliminary decree has already been drawn up, and that re-opening of the suit and adducing further evidence will cause inordinate delay in disposal and hardship to the parties. Hanif Ali (Md) vs Hajera Khatun and others 55 DLR 17.
Order VI rule 17-
Unnecessary parties and prayers may be struck out by the court from an election petition by an amendment. Idrish Ali Bhuiyan (Md) vs Dr Alauddin Ahmed and ors 55 DLR 19.
Order VI rule 17-
An amendment may be just but cannot be allowed if it is not necessary for decision in the suit. Bangladesh Shipping Lines Ltd vs Commissioner of Customs, Chittagong and others 55 DLR 166.
Order VI rule 17-
Amendment of plaint seeking to convert the suit of one character into another and to substitute one distinct cause of action into another depriving the other party of his right accrued to him by lapse of time cannot be allowed. Government of Bangladesh and another vs Shafi A Chowdhury and another 55 DLR 228.
Order VI rule 17 and section 151-
Amendment of pleadings-Introduction of alternative defence on the ground of hardship-A completely different defence-Contract even if subsisting can still be avoided on this ground.
It is found that this amendment has been introduced so that in the event of the court's finding that the contract is subsisting, the defendant-petitioner can still avoid it on the ground of hardship. In other words, the defendant-petitioner is now seeking to introduce an alternative defence. This defence is now of a completely different kind, both in terms of content and form. It will have the effect of introducing a new controversy between the parties, a controversy which did not exist before. Defendant-petitioner is not precluded from raising alternative defence-introduction of alternative defence at this stage of the suit will compel the plaintiff to arrange production of evidence in rebuttal of a new defence.
The petitioner was not precluded from raising a new alternative defence, provided it did not affect the parties in any appreciable manner. If the amendment was sought to be made before the positive hearing of the suit it could not have been said that the parties were affected thereby but in the facts and circumstances of this case it can legitimately be argued by the plaintiff-opposite party that the introduction of an alternative defence at this stage of the suit will be highly prejudicial to him, for he will also have to arrange production of evidence in rebuttal of a new defence. Major (Retd) M Afsaruddin vs Kamal Rahman 4 I DLR I 90.
Order VI rule 17 and Order VII rule 10-
The conversion of the suit from one file to another does not involve a change in the nature and character of the suit so as to bar amendment of the plaint. The court had ample jurisdiction to allow the amendment and then to return the amended plaint to the plaintiff for presentation to the proper court. Nazrul Islam vs Jahanara Hasan 46 DLR I06.
Order VI rule 17 & Order XXII rule 9-
The provisions for amendment of pleading has no bearing in the matter of substitution of legal representative of a deceased party and it is not to be used as subsidiary provision of the Order XXII, Civil Procedure Code as a device to overcome the effect of bar of abatement in the suit. Saleha Khatun and others vs Fetema Hajura and others 52 DLR 457.
Code of Civil Procedure (V of 1908)
Order VI, rules 17 read with Order XXIII, rules 1 & 2
Plea does not stand to reason because the wrong statements made in the plaint can be corrected by way of amendment which will not change the nature and character of the suit. The plaintiffs may also pray for consequential relief by way of amendment on payment of advalorem court fee and for addition of such relief, withdrawal of the suit and appeal with the permission to sue afresh is not at all necessary. Bangladesh vs Babor Ali [73 DLR (AD) 4]
It is pertinent to mention that the established principle of law is that once a judgment is delivered by a competent Court and signed by the learned Judge, the said Judge becomes functus officio. He cannot entertain any application other than for correcting an arithmetical or clerical error. It is also well settled that an executing Court cannot go beyond the decree and the executing Court cannot amend the decree without an order passed by the appellate Court, except correction of clerical and arithmetical mistake and an amendment under section 153 of the Code of Civil Procedure cannot be allowed when it alters the real matter in controversy between the parties. [73 DLR (AD) 233]
The Court may at any time correct any clerical or arithmetical mistake in the judgment, decree or orders or accidental errors arising therefrom either on its own motion or on the application of a party, but an amendment of a substantial nature, or amendment of the plaint is beyond the scope of this section. If the decree or order is sought to be varied for any reason other than clerical error or arithmetical mistake, it can be done only by way of review or by appeal. A Court apart from section 152 by virtue of its inherent power can alter or vary the order and the decree, but the Court must bring the amendment of the decree in conformity with and to harmonies the decree with the judgment. (Ismailullah vs Sukumar, 1986 BLD (AD) 251 = 38 DLR (AD) 125). But the amendment made by the Court by striking out some schedules from the plaint as well as from the decree was in no way done according to the provision of law. Nonetheless, the Court allowed the petition for amendment of decree vide order No.310 dated 18-5-2010 and as a result it was in violation of the provision of law and the decision of the apex Court. Such order was totally erroneous and the revisional Court's order upholding the same was equally erroneous. [73 DLR (AD) 233]
Code of Civil Procedure (v of 1908)
Order VI, rule 17
Amendment of plaint was filed after lapse of 10 years of institution of the suit and that the trial Court accepted the amendment after long lapse of time. Admittedly, as soon as gazette notification has been published in the official gazette, the acquired property including the suit property vested in the Government free from all encumbrances and the Government is at liberty to use the property for any other purpose and the original owners lost their right over the acquired land for good. The suit itself was not maintainable from its very inception. The plaintiff cannot take the plea that the suit is maintainable because of malafide.... (33) [73 DLR (AD) (2021) 196]
Code of Civil Procedure [V of 1908]
Order 6 rule 17
Whether in view of the amendment of the Code of Civil Procedure by gazette notification dated 24th September, 2012 adding two provisos to rule 17 of order 6 after the word 'parties' by substituting colon mark (3) for the full stop, an amendment to the plaint can be allowed at the appellate stage. Md. Atiqur Rahman - Vs. Khan Mohammad Ameer and others (Civil) 17 ALR (AD) 106-111
Code of Civil Procedure [V of 1908]
Order 6 Rule 17-It appears to the High Court Division from the record that the present suit is at the stage of final hearing and 1(one) P.W. was ex- amined in part. In consideration of the facts and circumstances, the trial Court rightly rejected the application for amendment of the plaint filed by the plaintiff-petitioners.
From the statement of the plaint and the proposed amendment of the plaint, it is clearly found to the High Court Division that in the plaint, the plaintiff-petitioners stated that their mother gave a Wasiotnama (অছিয়তনামা) to establish a Darbar Sharif in the name of her grand-son and at that time the plaintiffs, defendants and other relatives were present and it was functioning for about a decade but in the amendment petition they have come with a new fact and claim that their mother orally gifted 3 (three) Kara of the suit land to the plaintiffs and some other lands to the defendant No. 1. This is a clear departure of the claim made in the plaint which was filed for cancellation of 3 (three) deeds. It further appears that they have proposed for declaration of title and confirmation of possession with the cancellation of deeds. They have also proposed to strike out the name of the defendant Nos. 3 and 4 and to implead some names as defendant Nos. 3- 12. In paragraph Nos. 3 and 4 they have asserted about oral gift in place of Wasiotnama. In paragraph No. 5 they have proposed to amend the prayer of the plaint which is about oral gift and declaration of title and confirmation of possession. It is further found from the amendment application that the plaintiffs proposed to add 13 persons as defendants but the suit was filed for cancellation of deed. So, those persons are not necessary parties in the suit. The trial Court on consideration of the aforesaid facts and circumstances of the case rightly observed that by the proposed amendment the nature and character of the suit will be changed. Moreover, the suit is at the stage of final hearing and at this stage this type of amendment should not be allowed by which it will create a new controversy among the parties. It appears to the High Court Division from the record that the present suit is at the stage of final hearing and 1 (one) P.W. was examined in part. In consideration of the aforesaid facts and circumstances, the trial Court rightly rejected the application for amendment of the plaint filed by the plaintiff-petitioners. On consideration of the aforesaid facts and circumstances and the discussions made above and the provision of Order 6 Rule 17 of the Code of Civil Procedure, 1908, the High Court Division is of the view that the trial Court has rightly rejected the application for amendment filed by the plaintiff-petitioners. Thus, the High Court Division does not find any error of law in the impugned judgment and order passed by the trial Court. It has not occasioned in failure of justice. The Rule fails. In the result, the Rule is discharged. Hosneara Begum and others -Vs.- AMM Ibrahim and others (Civil) 19 ALR (HCD) 38-42
Code Civil Procedure [V of 1908]
Order 6, rule 17 read with order I, rule 10(2)
As the Artha Rin Adalat concerned acted coram non-judice by allowing a person as a defendant who is neither a loanee nor a guarantor, question of maintainability cannot arise at all.
The Appellate Division opined that the writ petitioner, i.e. the defendant No. 6 in the Court below, filed the aforementioned writ petition, making the Rule absolute in which the High Court Division observed that admittedly the writ petitioner is neither a loanee nor a guarantor and that no Artha Rin Suit can be filed against someone who is neither a loanee nor a guarantor. As the Appellate Division took up the leave petition, Mr. Muhammad Nazrul Islam, the learned Senior Advocate for the leave petitioner argued that по writ is maintainable against an Artha Rin judgement as appeal provision is there. Mr. Chowdhury Md. Zahangir, on the other hand, appearing for the respondents before the Appellate Division, argued that the question of appeal and maintainability cannot arise in a case where the Court acted beyond jurisdiction. Having pursued the judgements of the Courts below and the respective pleading the Appellate Division is satisfied that as the Artha Rin Adalat concerned acted coram non-judice by allowing a person as a defendant who is neither a loanee nor a guarantor, question of maintainability cannot arise at all. The Appellate Division finds no merit in the leave petition, which is accordingly dismissed. Islami Bank Bangladesh Limited and another Vs. Md. Serajul Islam and others. (Civil) 19 ALR (AD) 76-77
Code of Civil Procedure [V of 1908]
Order 6 Rule 17 read with section 115(1)
It is the settled principle of law that amendment of a plaint can be allowed in the discretionary power of court at any stage and such amendment of the plaint must not be allowed, if it tends to change the nature and character of the suit.
The High Court Division held that the amendment sought for will not change the nature and character of the suit rather such amendment is necessary which will enable the Court to determine the real questions in controversy between the parties. The High Court Division finds substance in the submission of the learned advocate for the petitioner and the impugned order is not sustainable in law, which is liable to set aside. The High Court Division finds merit in this rule. In the result, Rule is made absolute without any order as to costs. The impugned Order dated 19.06.2013 passed by the learned Joint District Judge, Additional Court, Gazipur, in Title Suit No. 232 of 2007 rejecting the petitioner's application under Order VI Rule 17 of the Code of Civil Procedure for amendment of the plaint is hereby set aside. Application for amendment of the plaint dated 05.05.2013 is allowed. Md. Darbar Ali alias Jobbar Ali -Vs. Amir Ali and others(Civil) 16 ALR (HCD) 261-264
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