Pleadings may be amended to determine the real issue

High Court Division (Civil Revisional Jurisdiction),
The Supreme Court of Bangladesh,
Bangladesh Shipping Lines Ltd. (Petitioner),
Vs
Commissioner of Custom, Chittagong and others (Opposite parties),
Before Mr. Justice Md. Abdur Rashid and Mr. Justice Md. Mahmud Hossain.
Date of Judgement, 21st July 2002.

Background
Md Abdur Rashid J: This Rule arises out of an order of the Third Court of Subordinate Judge at Chittagong dated 13-8-2000 passed in other Suit No. 23 of 1999, which rejected an application for amendment of the plaint.
The plaintiff and defendant Nos. 2 and 3 are engaged in the business of handling agency for foreign ship owners. On 31 January 1999 the plaintiff instituted the suit for a decree of several declarations, namely, issue of adjudication orders as described in schedule-A to the plaint against the plaintiff are all illegal, improper and of no legal effect, that the joint declaration dated 1st August 1991 executed between the plaintiff and the defendant no- 2 was a mere working agreement and lost its all legal effect after 3-3-93 and that defendant Nos. 2 and 3 were liable and responsible to act upon and pay under all adjudication and penalty orders covering the period up to 31-7-1991 including those described in aforesaid schedule.
On 13-8-2000 the plaintiff made an application for amendment of the plaint for addition of further relief after clause C of paragraph 20 of the plaint, which are of the following effect,
a) the joint declaration dated 1-8-91 to be declared void ab initio and be cancelled;
b) money decree for a sum of Taka 3,90,735;
c) defendant No. 2 and 3 to be declared liable and responsible to pay the money to be assessed by defendant No, 1 in different adjudication orders on the basis of Import General Manifest as submitted by them; and also
d) a decree of mandatory injunction directing defendant Nos. 2 and 3 to pay the penalty and other amount as assessed by defendant No. 1.
On the same date, the application was heard and rejected by the learned Subordinate Judge by impugned order being of the view that proposed amendment was contrary to the nature and character of the main suit.
Mr Niaz Mahmud, learned Advocate for the plaintiff, submitted that the Court below erred in law in refusing the prayer for amendment on wrong assumption that the proposed amendment will result in change in the nature and character of the suit. By reading the plaint and the application for amendment, he submitted that the plaintiff had to add a prayer for a money decree after the plaintiff was made on 7-2-99 to pay Taka 3,90,575 against an adjudication order after the institution of the suit. If defendant Nos. 2 or No. 3 is found ultimately responsible to pay said amount, which could be recovered in the present suit and, as such, a money decree is sought to be added for. Such amendment would also help avoid multiplicity of proceedings. For the same purpose, a decree of mandatory injunction is also sought to be added.
By filing an affidavit-in-opposition on behalf of defendant opposite party No. 2 Mr Morad Reza opposed the proposed amendment and submitted that defendant No. 2 was not at all aware of the suit or the impugned order since it did not receive any summons of the suit. Had it received the summons, it would definitely oppose the prayer by filing a written objection.
He challenged the proposed amendment on number of grounds namely, the amendments sought for was barred by limitation. The new relief sought for declaring the joint declaration dated 1-8-91 void on ground of fraud could not be allowed by way of amendment in the absence of any pleading in the plaint. In a suit for a decree of declaration as sought for in the plaint, new relief for a money decree could not be allowed to be added by amendment. The plaintiff could not be allowed to take away his admission made in the plaint in respect of the aforesaid joint declaration. He also defended the impugned order on the reason that such amendment would result in change of the nature and character of the plaint even if not of the suit.

Deliberation
We have perused the plaint along with the application for amendment and the affidavits of the parties. The question before us is whether the exercise of jurisdiction by the learned Subordinate Judge in rejecting the prayer for amendment is well founded, in the fact and circumstances of the case.
In order to appreciate the conflicting submissions of the learned Advocates, we consider first the authorities as cited at the Bar.
In the case of Malik & Huq and another vs Muhammad Shamsul Islam Chowdhury 13 DLR (SC) 228 in a suit for a decree of declaration against order of discharge from service, injunction to reinstate into service, for damages for the loss due to discharge etc, the Supreme Court of Pakistan held the prayer for amendment to add further relief of a declaration that the plaintiff was entitled to money from the defendants not maintainable. The Supreme Court was of the view that the plaintiff would have to use the defendants separately for money.
In Gopal Das vs Mul Raj, AIR 1937 Lahore 389, in a suit for declaration that certain contracts of sale were valid and the purchase of certain bales were not valid since ratification of the transaction or purchase was obtained by fraudulent misrepresentation, a Division Bench of the Lahore High Court found the prayer for amendment of the plaint for addition of further relief a declaration that certain sum deposited by the plaintiff with the defendant as margin money is accountable by the defendant to the plaintiff cannot be granted under section 42 of the Specific Relief Act as it affects the pecuniary relationship between the parties to the contract.
After reading the above authorities, we read the provisions of Order VI rule 17 of Code. The rule 17 empowers the Court at any stage of the proceedings to allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. And all such amendment shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. The power of the court under the provision is no doubt of a discretionary in nature and the Court shall have to exercise the discretion judiciously in the terms of the rule. The intention with regard to the terms is also made sufficiently clear, the amendment should not only be just but also necessary for resolving the real issue in controversy between the parties. In our judgement an amendment may be just but cannot be allowed if it is not necessary for decision in the suit. So, in the exercise of the discretion the dominant consideration for the Court is to see whether or not the proposed amendment is necessary to decide the issue that may arise in the suit on the basis of original pleadings.
Let us now consider the proposed amendment on the above principles regarding amendment. At first, we must say that the objections to the proposed amendment on ground of prejudice to the other party for introduction of a new case of fraud or seeking new relief, if any, made in the plaint have got no basis since none of defendants before us has yet appeared in the suit. Moreover, there cannot be any element of surprise for them to contest the suit, if any of them ultimately do so. Objection on ground of limitation also cannot be accepted in the case before us since the proposed amendment has been sought within the limitation of the cause of action for the new relief of a money decree after making a payment on 7-2-99 and also within the date of institution of the suit on 31-1-99. Similarly, the submissions made on behalf of the plaintiff that the proposed amendment would not result in any change of the nature and/or character of the suit would be of no avail if the amendment is not at all necessary for the relief already sought for in the plaint.
In view of the above plaint, the questions at which the parties likely to be at variance are which of the handling agents is liable to pay as per adjudication order to be passed by the defendant No. 1 and for which period of the agency. The plaintiff has not denied the execution of the joint declaration with defendant No. 2 on 1-8-91 nor he has denied his liability to pay for the period from 1-8-91 to 3-2-93. If the plaintiff can prove its case, the plaintiff would not be held responsible for any period either before 1-8-91 or after 3-2-93 and the relief sought for in the plaint is sufficient to address its grievances. The proposed amendment to add further relief that joint declaration dated 1-8-91 to be declared void ab initio and be cancelled and that defendant no. 2 and/or No. 3 to be declared liable and responsible to pay the money to be assessed by defendant No. 1 in different adjudication orders on the basis of Import General Manifest are not at all necessary for adjudication of the aforesaid real issues. Further relief for a money decree for a sum of Taka 3,90,735 and a decree of mandatory injunction directing defendant Nos. 2 and 3 to pay the penalty and other amount to be assessed by defendant No. 1 are equally not necessary. Because, if the plaintiff succeeds to fix the responsibility of defendant No. 2 and/or No. 3 and gets a decree accordingly, then, pursuant to the decree the defendant No. 1 would be obliged to return the amount realised from the plaintiff on 7-2-99, and would need no mandate from the Court to realise the dues from the agent found responsible. Besides, in view of the principles enunciated in the above cited Malik and Haq and another vs Muhammad Shamsul Islam and Gopal Das vs Mul Raj, in a suit for a decree of declaration an amendment for adding further relief of a money decree cannot be allowed.

Decision
In the fact and circumstances of the case and the law, we find the proposed amendment is neither just nor necessary for determination of the real issues in controversy that may arise in the suit between the parties. The exercise of the discretion by the learned Subordinate Judge in rejecting the application for amendment of the plaint does not, therefore, suffer from any infirmity or illegality, nor such decision has resulted in failure of justice.
In the result, the Rule is discharged without, however, any order as to costs. Order of stay granted on 13-11-2000 is hereby recalled and vacated. Learned Subordinate Judge is directed to proceed with the suit in accordance with law.

Mustafa Niaz Mahmud, for the petitioner and Murad Reza, for the opposite party no- 2 with JBM Hassan, for the opposite party no- 3.