Amendment of execution petition
The High Court Division rightly found that the order dated 07.05.2008 allowing the prayer for amendment of the application for execution suffers from error of law which as resulted in an error in the decision occasioning failure of justice. Accordingly the Rule was made absolute. (Para-15, Hon'ble Chief Justice Md. Muzammel Hossain). 3 CLR(AD)161: Bangladesh House Building Finance Corporation Vs. Md. Nuruzzaman, Ref: 1995 BLD(AD)51.
"39. Now except Order XXI Rule 17(2), C.P.C. there is no other provision in order XXI under which amendment in execution proceedings can be allowed. And rule 17(2) contemplates the amendment of defects in the execution petition before admission and registration. Consequently the said Rule does not apply where the defect in the execution application is one which has no reference to Rules 11 to 14 of Order XXI, C.P.C
40. Order VI Rule 17, C.P.C. admittedly in terms does not apply to execution proceedings. According to its terms, it applies to alteration or amendment of pleadings and the expression "pleadings" according to Order VI Rule 1 means "plaint" or "written statement".
41. There is however a general provision in Sec. 153, C.P.C. which enacts that the court may "amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding".
42. Thus apart from Order XXI Rule 17 C.P.C. this section confers very wide powers on the courts in matters relating to amendments. Obviously the object of the section in allowing amendments is to minimise litigation and avoid multiplicity of proceedings and also to see that the merest technicality may not be allowed to stand in the way of substantial justice. Hence the court has power to allow all necessary amendments for deciding the real question at issue between the parties provided of course that no injury or injustice is caused to the opposite party or the injury, if any, is such as can be sufficiently compensated for by costs or otherwise.
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44. It was not doubted that execution of a decree is a proceeding in a suit and consequently section 153, C.P.C. Would apply to such execution proceedings. There is abundant authority to hold that section 153, C.P.C. is applicable to execution proceedings.
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47. Thus both the terms 'proceeding' as well as 'suit' are of wide amplitude and between them cover even the execution petitions. The principles laid down in the following cases therefore will apply to this case also. See Muhammad Habibulla v. Tikam Chand [AIR 1925 All 276.] Bhulji Bebhar v. Bawaji Daji [I.L.R. 5 Bom. 448.] and Gokul Kisto Chnader v. Aukhil Chunder Chatterjee [I.L.R. 16 Cal. 457.]." Bhoganadham Seshaiah vrs. Bhddhi Veerabhadrayya and others, reported in 1971 SCC Online AP 104 (AIR 1972 AP 134)
Amendment of pleadings
Any stage of the proceeding of the suit
Section 107(2), Order 6 Rule 17 and Order 41 Rule 3(3) of the Code of Civil Procedure: The proposition of law by now well settled that at any stage of the proceeding of the suit any party pray for amendment of the pleadings even at the appellate stage. (Para-12, Mr. Justice Md. Rais Uddin). 66 DLR 635: Binoda Sundori Pal & another Vs. Chandan Chandra Pal & others
Nature and character of the suit
Order 6 Rule 17 of the Code of Civil Procedure: Perused the order and the amendment petition, it transpires that although the order is non-speaking and slipshod (বিশৃঙ্খল), but it will not prejudice the defendant in any manner at this stage. It further appears that the proposed amendment will not change the nature and character of the suit. Since the Court is fully empowered to allow an amendment by either party of their pleadings at any stage of the proceedings without changing the nature and character of the suit and no error of law was committed by the learned 2nd Additional Assistant Judge, Dhaka by passing the order dated 15.6.97 as such, no interference is call for. (Para-9, Mr. Justice Syed AKM Dabirush-Shan). 14 BLC 649: Nasiruddin Nasu (Md) Vs. East West Property Development (Pvt) Ltd.: Ref: 1990 BLD 419-43 DLR 282, 12 DLR 626.
Amendment of the plaint
Order 6 Rule 17 of the Code of Civil Procedure: Original suit for recovery of possession and any amendment of plaint regarding declaration of title and implead its fact did not change the nature and character of the suit. (Para-8, Mr. Justice Sharif Uddin Chaklader). 6 XP 06: Afajuddin Dewan & others Vs. Salema Begum & others
The principles of law expounded in the cases referred to the facts and circumstances of the case in hand. In the case in hand, the plaintiff have not at all tried to alter the foundation of the suit, rather the plaintiffs have sought to add some new facts which are not contradictory to the earlier foundation of the suit and addition of two more reliefs, one for specific performance of contract and the other for possession has not changed the nature and character of the suit. (Para-20, Mr. Justice Syed Mahmud Hossain). 12 ADC 276: Mohammad G.R. Nasir & another Vs. Mrs. Halima Khatun being dead her heirs Mohammad Afzalur Rahman & others Ref: 13 DLR(AD)133, 36 DLR(AD)253, 18 BLD(AD)121.
Amendment cannot be allowed to fill up the lacuna
Section 115 read with Order 6 Rule 17 and Order 18 Rule 17 of the Code of Civil Procedure: It is well settled that the proposed amendment cannot be allowed to fill up the lacuna of the suit. It further transpires that the applications for proposed amendment and re-calling of PW.1 were filed after long lapse of seven years from the date of filing of the suit. Therefore, I hold that both the applications were filed at the belated stage and the Court of appeal below rightly rejected both the applications. I am in full agreement with the aforesaid findings. (Para-13, Mr. Justice Syed Md. Ziaul Karim). 17 BLT 571: Moulavi Abdul Khair Mollah Vs. Golafernessa & others Ref: 1 MLR(AD)233, AIR 1928(PC)208, AIR 1948(PC)100, AIR 1996(SC)2358, 55 DLR 228.
Amendment of the plaint by impleading some persons as defendants
Order 1 Rule 10 of the Code of Civil Procedure: Rule 10 of Order 1 of the Code of Civil Procedure, 1908 requires that in a suit all the persons likely to be affected by the decree shall be impleaded as parties to the suit for effective adjudication of the dispute and to avoid multiplicity of suits. In the instant partition suit the learned judges of the High Court Division found that the persons having interest in the suit properties who were left out must be made parties to the suit and as such made the Rule absolute. (Para-16 & 18, Mr. Justice Siddiqur Rahman Miah). 13 MLR 41: Abdul Awal & others Vs. Ratan Bibi & others
Amendment will relate back to the date of the institution of the suit
Order 6 Rule 17 of the Code of Civil Procedure: An amendment in the plaint is allowed for determining the real question in controversy between the parties and once an amendment of the plaint is allowed the amendment will relate back to the date of the institution of the suit and will be operative from that date. (Para-11, Mr. Justice Surendra Kumar Sinha). 60 DLR 652: Kamakshya Ranjan Halder & others Vs. Prafullya Kumar Halder & others
Sent back the suit for fresh trial
Order 6 Rule 17 of the Code of Civil Procedure: It thus appears that the amendment as sought is continuation of the statements made in paragraph 10 and the dispossession as alleged is merely notional (জল্পনামূলক) dispossession and so the materials on record were sufficient to dispose of the issues by the High Court Division itself and out of six issues as framed by trial Court issue No.4 is "অত্র মোকদ্দমা নালিশী ভূমিতে বাদীগনের স্বত্ব, স্বার্থ ও দখল আছে কিনা" and accordingly the plaintiffs were required to lead evidence regard their possession in the suit land and any omission of the plaintiffs in this regard certainly will be fatal (প্রাণনাশক) for them. (Para-9, Mr. Justice Md. Tafazzul Islam). 6 ADC 219: Government of the People's Republic of Bangladesh & others Vs. Md. Abdur Rob & others
Application for Amendment of revisional Application
Since there is no alternative way to amend the revisional application, an application under Section 151 C.P.C. for amendment of the revisional application is well maintainable. (Para-11,
Mr. Justice Sheikh Abdul Awal). 30 BLD 107: Sree Tarak Dasi Halder Vs. Sree Dukhiram @ Durgapada Biswas & another
