12 SCOB [2019] HCD British American Tobacco Bangladesh Company Ltd.Vs. Begum Shamsun Nahar (Syed Md.

Ziaul Karim, J) 125

12 SCOB [2019] HCD

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Civil Revision no. 4486 of 2015 Mr. A.J. Mohammad Ali, Senior Advocate
with Ms. Rubaiyat Hossain, Advocate, and
British American Tobacco Bangladesh
Ms. Jamila Mamtaz, Advocate,
Company Ltd., represented by its
....... For the defendant petitioner.
Company Secretary Md. Azizur
Rahman, New DOHS Road, Mohakhali, Mr. Muhammad Nawshed Jamir,
Dhak-1206. Advocate, with
...... Defendant-petitioner. Mr. A.H.M. Abdul Wahab, Advocate,
Mr. Reajul Hasan, Advocate, and
Versus
Mr. Tanvir Prodhan, Advocate,
Begum Shamsun Nahar, … For the Plaintiff opposite party.
.........Plaintiff-opposite party.
Hearing on: 04-10-2017,
And
Judgment delivered on: 05-10-2017

Present:
Mr. Justice Syed Md. Ziaul Karim
And
Mr. Justice Sheikh Md. Zakir Hossain

Principle to amend Pleadings;

JUDGMENT
Syed Md. Ziaul Karim, J:

1. This Rule was issued on an application under section 115(1) of the Code of Civil
Procedure ( briefly as the Code) at the instance of defendant petitioner calls in question the
legality and propriety of the order dated 14-10-2015 passed by learned Joint District Judge
and Arbitration Court, Dhaka, allowing an application for amendment of the plaint of Money
Suit no. 26 of 2013 under order VI Rule 17 of the Code.

2. Material facts leading to this Rule, are that on 23-05-2004 opposite party as plaintiff
instituted Money Suit no. 32 of 2004 in the first Court of Joint District Judge, Dhaka,
impleading the petitioner as defendant for realization of money for Tk.2,50,38,000.00 from
the defendant.

3. The relieves claimed in suit reads as hereunder:

c. The defendant may be directed to pay the decreetal amount to the plaintiff or to
deposit the same in court within a time to be specified by this honorable Court.
d. In case of failure on the part of the defendant to satisfy the decree passed by the
honorable Court the decreetal amount may be recovered by attachment and sale of
moveable and immovable properties belonging to the defendant;
e. The decreetal amount if recovered may be directed to be paid to the plaintiff;
f. Such other relief or relieves this honorable court deems just and proper may be
granted to the plaintiff.

4. In suit, the plaintiff by filing an application dated 12-11-2012 sought to amend the
plaint under Order VI Rule 17 of the Code by incorporating some clarification of the
statements already made in the plaint and some correction of error apparent from the face of
the plaint. The defendant opposed the proposed amendment by filing written objection stating
that the proposed amendment will change the nature and character of the suit which cannot be
allowed.

5. After hearing the learned Judge of the Court below by the impugned order allowed the
application for amendment.

6. Feeling aggrieved the defendant as petitioner filed the instant application and obtained
the present Rule.

7. The learned Advocate appearing on behalf of the petitioner seeks to impeach the
impugned order on two fold arguments:

Firstly: The plaintiff by identical application sought to amend the plaint earlier which
was allowed by the Court below but the same was set aside by the High Court
Division on 22-01-2014 in Civil Revision no.355 of 2013, wherein this Court directed
the Court below to pass a proper judgment considering the amendment application
with written objection in accordance with law. He adds that the impugned order is a
non-speaking order which cannot be sustained in law.
Secondly: Later, another identical application was allowed without complying this
Court’s direction. So the impugned order cannot be sustained in the eye of law.

8. The learned Advocate appearing for the plaintiff opposite party opposes the Rule and
candidly submits that the trial Court did not comply the direction of this Court. He, however
submits that non-speaking impugned order itself is not the valid ground for interference by
the High Court Division. He lastly submits that by such non speaking impugned order will
not affect the merit of this case.

9. In support of his contention he refers the case of Abdul Motaleb Vs. Md. Ershad Ali
and others 18 BLD (AD) 121 held:

" Section -115)

Simply because the impugned order was not a speaking order, could not by itself be a
valid ground for interference by the High Court Division unless it can be shown that
the subordinate Court has committed any error of law "resulting in an error in the
decision occasioning failure of justice.
12 SCOB [2019] HCD British American Tobacco Bangladesh Company Ltd.Vs. Begum Shamsun Nahar (Syed Md. Ziaul Karim, J) 127

The order of the subordinate Court may have been a bad order and improper one not
having given any reasons but before interfering with the same the High Court
Division is required to examine whether the same has resulted in an erroneous
decision occasioning failure of justice.

Order VI Rule 17
Since all rules of the Court are intended to secure the proper administration of justice,
it is essential that they should be made to serve and be subordinate to that purpose so
that full powers of amendment be enjoyed and as such it should always be liberally
exercised. The only limitation in allowing an amendment of the plaint is that the
proposed amendment should not change the fundamental character and nature of the
suit. The settled law that amendment of pleadings may be allowed at any stage of the
proceedings for the purpose of determining the real controversy between the parties."

10. In order to appreciate their submissions we have gone through the records and given
our anxious considerations to their submissions.

11. The point for consideration whether the impugned order calls for interference by this
Court.

12. On going to the materials on record it transpires that it is the definite case of plaintiff
that proposed amendment are for clarification of some statements made in the plaint and will
not change the nature and character of the suit.

13. For the convenience of understanding the Provisions of Order VI Rule 17 of the Code
reads as hereunder:
“ 17- The Court may at any stage of the proceedings 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 question in controversy between the parties.

14. Therefore, Order VI Rule 17 of the Code provides that the Court may at any stage of
the proceedings allow either party to alter or amend his pleadings in such manner and on such
term as may be just and necessary for the purpose of determining the real question in
controversy between the parties. The proposed amendment would settle the question of
disputes between the parties. This will end all pending controversies between the parties and
will not amount to a change in the nature and character of the suit.

15. It transpires to us that proposed amendment will in no way change the nature and
character of the suit rather the plaintiff wants to amend his plaint by proposed amendment for
proper and complete adjudication of the suit which do not appear to be inconsistent,
irrelevant, immaterial or contradictory of the facts of suit. We find that one of the
fundamental principles governing the amendment of the pleadings is that all the controversies
between the parties as far as possible should be included and multiplicity of the proceedings
avoided.

16. Therefore, we hold that the proposed amendment is necessary for the purpose of
determining the real questions in controversies between the parties and proper adjudication of
the suit. Moreover, the respective party will prove their own case by adducing evidence and
12 SCOB [2019] HCD British American Tobacco Bangladesh Company Ltd.Vs. Begum Shamsun Nahar (Syed Md. Ziaul Karim, J) 128

other party has the ample opportunity to file additional written statement against such
amendment and to prove their case at the time of hearing.

17. In the case of Abdul Mutaleb Vs. Ershad Ali 1998 BLD(AD)121=4 BLC(AD)150
held:
“ Since all rules of the Court are intended to secure the proper administration of
justice, it is essential that they should be made to serve and be subordinate to that
purpose so that full powers of amendment may be enjoyed and, as such, it should
always be liberally exercised. The only limitation in allowing an amendment of the
plaint is that the proposed amendment should not change the fundamental character
and nature of the suit. The settled law is that amendment of pleadings may be allowed
at any stage of the proceedings for the purpose of determining the real questions in
controversies between the parties.”

18. This view receives support in the case of Md. Khaledur Reza Chowdhury Vs. Saleha
Begum and others 1997 BLD(AD) 86= 2 BLC(AD) 20, S.N. Roy Chowdhury Vs. A. Jabber
and others 1994 BLD 229=46 DLR 273. Moyjuddin Mondol Vs. Bena Rani Das and others
45 DLR 154 and M. A. Jahangir and others Vs. Abdul Malek and others 41 DLR 389.

19. In the light of discussions made above and the preponderant judicial views emerging
out of the authorities referred to above, we are of the view that the Court below rightly
allowed the application for amendment. We find that earlier in Civil Revision no. 355 of
2013 there was a direction by this Court dated 22-01-2014 to the effect that the trial Court
should pass a proper judgment on considering the amendment application itself but such
direction was not complied by the Court below we highly disapprove such act of the learned
Judge. Therefore, she is cautioned not to do such act in future failing which she should be
dealt in accordance with law.

20. In view of foregoing narrative, the Rule is discharged without any order asto cost. The
order of stay granted earlier stands vacated.

21. The office is directed to communicate the order at once.

22. Let a copy of judgment and order be served upon Mrs. Monowara Begum, Joint
District Judge, Arbitration Court, Dhaka.