MD. SHAMSUL HAQUE Vs. SALENULLAH

JUDGEMENT

(1.) This appeal by leave is directed against the impugned judgment and order dated March 1, 1992 passed by the High Court Division in Civil Order No. 944 of 1992 summarily rejecting of the application under section 115(1) of the Code of Civil Procedure holding that the proposed amendment would change the nature and character of the suit.

(2.) Leave was granted to consider as to whether the High Court Division erred in rejecting the revisional application summarily holding that the proposed amendment would change the nature and character of the suit without considering that the plaintiff's prayer for amendment was allowed in part by the trial Court and that the High court Division did not a at all consider the appellant's contention that the learned Subordinate Judge erroneously held that Other Suit No. 26 of 1983 of the Court of Senior Assistant Judge, Cox's Bazar was not within the pecuniary jurisdiction of the said court.

(3.) The appellant filed the suit for partition. Subsequently on receipt of the written statement informing about a decree dated 08.08.1988 passed in Other Suit No. 26 of 1983 of the Court of Munsif at Cox's Bazar, the appellant filed an application for amendment of plaint for adding a prayer for a declaration of title and that the judgment and decree dated 08.08.1988 passed in Other Suit No. 26 of 1983 of the Court of Munsif, Cox's Bazar is fraudulent, void and not binding upon setting aside the said decree. The said application was allowed in part allowing the prayer for adding declaration of title but rejecting the prayer for amendment incorporating the prayer that the decree in Other Suit No. 26 of 1983 is fraudulent, void and not binding upon the plaintiff on the ground that the suit is beyond the pecuniary jurisdiction of the learned Subordinate Judge. The plaintiff unsuccessfully moved the High Court Division.