Present:

MR. JUSTICE S.M. EMDADUL HOQUE

CIVIL REVISION NO.5573 OF 2022.

IN THE MATTER OF:

An application under Section 115 (1) of the Code of Civil Procedure.

- AND -

IN THE MATTER OF:

Md. Faruque and others

..... Plaintiff-Appellant-Petitioners

-Versus-

Abdul Kadir and others

…… Defendant-Respondent-Opposite parties.

Mr. Md. Saidul Alam Khan, Advocate

….. For the petitioners.

Mr. Prabir Halder, Advocate

…. For the opposite party Nos.1-6. Mr. Mohammad Abdullah Al Masud, Advocate

…. For the opposite party Nos.7-20.

Heard and Judgment on: 18.01.2024.

On an application of the petitioner Md. Faruque and others under section 115 (1) of the Code of Civil Procedure the Rule was issued calling upon the opposite party Nos.1-20 to show cause as to why the judgment and decree dated 04.10.2022 passed by the learned Joint District Judge, Narayanganj in Title Appeal No.80 of 2022 dismissing the appeal and thereby affirming the judgment and decree dated 13.02.2022 passed by the Senior Assistant Judge, Bondar, Narayanganj in Title Suit No.112 of 2021 dismissing the suit should not be set-aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

Facts necessary for disposal of the Rule, in short, is that the predecessor of the petitioners as sole plaintiff filed Title Suit No.112 of 2021 before the Senior Assistant Judge, Bondar, Narayanganj for declaration of title of the schedule land and the R.S Khatian No.253 and 257 is illegal, erroneous and not binding upon the plaintiff.

The defendant Nos. 1-10 contested the suit by filing written statement denying all the materials assertion made in the plaint.

Thereafter, the trial Court framed 06 (six) issues for disposal of the suit.

At the trial the plaintiff side examined two witnesses as P.Ws and also adduced documents and defendant side also examined two witnesses as D.Ws and also adduced some documents to prove their respective cases.

The trial Court after hearing the parties and considering the evidence on record dismissed the suit by its judgment and decree dated 30.02.2022.

Against the said judgment and decree of the trial Court the plaintiff side preferred Title Appeal No.80 of 2022 before the learned District Judge, Narayanganj.

The learned District Judge, after hearing the parties and considering the evidence on record dismissing the appeal and thereby affirming the judgment and decree of the trial Court by its judgment and decree dated 04.10.2022.

Being aggrieved by and dissatisfied with the impugned judgment and decree of the Courts below the plaintiff-appellant-petitioners filed this revisional application under Section 115(1) of the Code of Civil Procedure and obtained the Rule.

Mr. Prabir Halder, the learned Advocate entered appear on behalf of the opposite party Nos.1-6 through vokalatanama to oppose the Rule and Mr. Mohammad Abdullah Al Masud also filed power on behalf of the opposite party Nos.7-10 and 12-20 through vokalatanama to oppose the Rule.

At the time of hearing of the revisional application the learned Advocate Mr. Md. Saidul Alam Khan, filed an application for amendment of the plaint under Order VI rule 17 read with Section 151 of the Code of Civil Procedure.

The learned Advocate submits that since the schedule property being the ejmailly property and without any prayer for partition the dispute cannot be resolved. The learned Advocate submits that in his application he stated the detail facts in the paragraph Nos.7-9 and submits that by the proposed amendment the nature and character of the suit has not been changed.

He further submits that the plaint can be amended at any time during the trial even in the appellate stage or even in the revisional stage

or and this matter has already been settled by our Apex Court and prayer

is a bonafide prayer. He prays for disposal of the Rule with a direction to allow the application for amendment and to dispose of the suit treating the same as partition suit.

Mr. Prabir Halder,