Present

Mr. Justice Md. Salim.

CIVIL REVISION NO.5397 OF 2023

Md. Mojibur Rahman and others

........The defendant-Petitioners.

-VERSUS-

Abul Hossain Majhi and others

   .…..The plaintiff-opposite parties.

Mr. Md. Abul Kasem, Advocate

    ...…... For the petitioners.

Mr. A.K.M. Shamshad, Advocate

........ For the opposite parties.

The 28th, November,2024. By this Rule, the opposite parties were called upon

to show cause as to why the impugned judgment and order dated 24.05.2023 passed by the learned Additional District  Judge,  2nd  Court,  Munshiganj  in  Title  Appeal No.140 of 2013, allowing the application under Order VI Rule 17 of the Code of Civil Procedure for amendment of plaint.

Facts  leading  to  this  Rule  are  that  the  opposite parties 1-22 as plaintiffs instituted Title Suit 13 of 2011 before the Senior Assistant Judge, Tongibari, Munshiganj, for declaration of title.

Defendants 1-8 contested the suit by filing a joint written statement.

The  learned  Senior  Assistant  Judge,  Tongibari, Munshiganj,  framed  necessary  issues  during  the  trial.

Subsequently, the  learned  Senior  Assistant  Judge, Tongibari, Munshiganj, dismissed the suit by judgment and decree dated 28.03.2013.

Being aggrieved, the plaintiffs preferred Title Appeal No.140 of 2013 before the District Judge, Munshiganj, and on transfer, the appeal is pending for disposal before the Additional District Judge, 2nd Court, Munshiganj.

During  the  pendency  of  the  appeal,  the  plaintiff opposite  parties  1-22  applied  for  amendment  of  plaint Order VI Rule 17 of the Code of Civil Procedure. Upon hearing  the  application,  the  learned  Additional  District Judge, 2nd Court, Munshiganj, by the judgment and order dated 24.05.2023, allowed the application to amend the plaint.

Being  aggrieved,  the  defendant-respondent  as petitioners  moved  this  revision  before  this  Court  and obtained the instant Rule and an order of stay.

Mr. Md. Abul Kasem, the learned Counsel appearing on behalf of the petitioners, submits that the appellate Court below committed an error of law resulting in an error in the decision, occasioning failure of justice in not considered that the applicant applied to an amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure  after  judgment  and  decree  because,  after commencement of trial, there is no scope to allow the same  unless  the  Court  is  satisfied  that  despite  due diligence,  the  party  could  not  have  raised  the  matter before  the  commencement  of  trial,  moreover  the  above amendment  of  the  plaint  changed  the  nature  and character of the original suit and as such the impugned order of the appellant court is liable to be set aside.

Mr.  A.K.M.  Shamshad,  the  learned  Counsel appearing on behalf of the opposite parties, submits that as per Order VI Rule 17 of the Code of Civil Procedure, the Court has ample power to amend the application at any stage of the suit so the appellate Court justifiedly allowed the amendment application.

I have anxiously considered the submission of the learned advocate for both parties pursued the impugned judgment and order,  amendment application, and the other materials on record. It appears that the appellate Court below saying that there is no chance of changing the nature and character of the suit. So, the application for amendment under Order VI Rule 17 is allowed.

Notably, the law relating to the amendment of a plaint is envisaged in Order VI Rule 17 of the Code of Civil Procedure which runs as follows:

“The court may at any stage of the proceeding allow  either  party  to  alter  or  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  questions  in controversy between the parties.”

  It reveals that if any material facts and necessary particulars are omitted during the drafting of a plaint, such particulars can be added to the pleadings at any stage of the proceedings; there should be some foundation and basis for such amendment. All amendments that may be  necessary  for  determining  the  real  question  in controversy between the parties may be allowed, provided it does not cause injustice or prejudice to the other side. Ultimately, courts exist for the purpose of doing justice between the parties and not for punishing them, and they are  empowered  to  grant  amendments  in  the  more significant interest of doing complete justice to the parties. Provisions for the amendment of pleadings are intended to promote the ends of justice and not defeat them.

It is a well-established principle that the object of courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. If the error or mistake is not fraudulent or is not intended to overreach, the Court ought to correct it if it cannot do injustice to the other side. Courts do not exist for  the  sake  of  discipline  but  to  decide  matters  in controversy. I do not regard such an amendment as a matter of favor or grace. It seems that the amendment will help determine the fundamental controversy. It is as much a matter of right for the plaintiffs to have the plaint correct by this amendment.

The Rule confers a very wide discretion on courts in the matter of amendment of pleadings. As a general rule, leave to amend will be granted so as to enable the real question  in  issue  between  the  parties  to  be  raised  in pleadings, where the amendment will occasion no injury to the opposite party and can be sufficiently compensated for by costs or other terms to be imposed by the order. In the  case  of  Kishandas  Rupchand  and  another  Vs. Rachappa Vithoba Shilwant and others reported in (1909) 33 Bom 644) Batchelo, J observed that-

“All amendments ought to be allowed, at any of the  proceedings,  which  satisfy  the  two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose  of  determining  the  real  question  in controversy between the parties.”

Therefore, the main points to be considered before a party  is  allowed  to  amend  his  pleadings  are,  firstly, whether the amendment is necessary to determine the real question  in  controversy,  and  secondly,  can  the amendment be allowed without injustice to the other side? The first condition that must be satisfied before the Court can allow the amendment is whether such an amendment is necessary to determine real questions in controversy. If that condition is not satisfied, the amendment should not be  allowed.  On  the  other  hand,  if  the  amendment  is necessary  to  decide  the  “real  controversy”  between  the parties, the amendment should be allowed even though the  Court  may  think  that  the  party  seeking  the amendment will not be able to prove the amended plea. This basic test governs the Courts’ unchartered powers of amendment, which should be allowed when it does not satisfy  this  cardinal  test.  Thus,  it  has  been  held  that 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. The second condition is also equally important, according to which no amendment will be allowed, which will cause injustice to the opposite party. It is a settled law that the amendment can be allowed if it can be without injustice to the other side.

It  appears  that  in  an  application  for  amendment after the commencement of trial, the applicant and the Court must write the cogent reason. However, the plain reading of the application under Order VI Rule 17 of the instant  case  manifests  that  the  proposed  amendment admittedly  changed  the  suit’s  nature  and  character. Moreover, the reasons for the delay in the amendment application have not been adequately explained, and the appellate Court allowed the application without giving any cogent reasons.

So, I believe that the Appeal Court committed an error  of  law,  resulting  in  an  error  in  the  decision, occasioning a failure of justice in allowing the application for amendment of the plaint resulted in an error in the decision,  occasioning  a  failure  of  justice.  As  such,  the impugned judgment and order require interference by this Court.

Resultantly, the Rule is made absolute without any order as to the costs. The impugned judgment and order dated  24.05.2023  passed  by  the  learned  Additional District  Judge,  2nd  Court,  Munshiganj  in  Title  Appeal No.140 of 2013 is hereby set aside.

The order of stay passed at the time of issuance of the Rule is hereby vacated.

Communicate the judgment at once.

      ...…………………….

(Md. Salim, J).

Kabir(BO)