High Court · 2011

The opposite parties herein are the plaintiffs in Title Suit No. 29/2009 before the learned Munsiff, Bilasipara who have sought the following reliefs, v iz., a) A decree declaring the right, title and interest of the plaintiffs in the sui t land, b) A decree for the cancellation of sale deed Nos.2871/08 and 2872/2008 dated 20 .09.2008, c) A decree declaring the sale deed Nos. 2871/2008 and 2872/2008 dated 20.09.200 8 as illegal, forged and hence void, d) A decree for eviction of the defendant Nos. 1 and 2 from the suit land and fo r Khas possession, e) A decree for permanent injunction restraining the defendant Nos. 1 and 2 to r ecord their names into mutation or alienate the suit land to any person or agent s till disposal of the suit, f) A decree for cost to the plaintiffs, g) A decree for any other reliefs as the Court deemed fit and proper with equity and good conscience. The defendants on receipts of summons had entered their appearance and f 4. iled their written statements on 07.07.2009. On the pleadings of the parties the learned trial Court framed the issues. Thereafter the plaintiffs have submitted their evidence on affidavit and the defendants were called upon to cross-examin e the plaintiff’s witness. At this stage the defendants sought for an amendment of the written statement on 08.06.2010 which is reproduced below- (cid:28)1) That, due to the misunderstanding of instructions taken by the e ngaged Advocate some error has been committed in writing the Written Statement. That these are inadvertent mistake happened in the Written Statement. That these mistake could not be discovered at the earliest stage though the defendant had due deligence in conducting the defendant side case. 2) That in para No.1 the following sentences are to be added:- (cid:28)That the suit have been based on the facts of mutation and in t he relief portion the Plaintiff in para No.18 (e) prays for restraining the defe ndant No.1 & 2 to record their names or mutated their names which is clearly bar red by law under Section 154 of Assam Land and Revenue Regulation Act, 1886 as a mended up-to-date. (cid:29) 3) (cid:28)That the defendants have purchased a plot of land measuring- 1 Bigh 9 lessas, v That after para No.2 the following setences are to be added:- ide regd. Sale-deed No.2865 of 1970 and just after this sale-deed the defendants have been delivered possession and they have built their home thereon in the ye ar of 1970. That the defendants father have also purchased a plot of land measur ing- 2 Bighas 9 lessas contiguous to this plot of land vide Regd. Sale-deed No. 515 of 1977. That these two piece of land made one plot and thus became an area- 3 Bighas 18 lessas which have been continuously, openly and without any interru ption from any corner have been possessing by the defendants since 1970 and 1977 till to the present time. That the boundary of this plot of land given in the s ale-deeds and in the actual field are correct there is no any suspicion in this regard in the Physical possession. That the Plaintiffs knew this fact very well that the defendants have every right, title, interest upon the suit land. That t he Plaintiffs claim are absolutely false and they have no right, title, interest upon the suit land. (cid:29) 4) That the following stanza and Paras will be deleted from the Written sta tement i.e. para No.3 of the written statement and also from the para No.5 in th e 6th line the word (cid:28)but (cid:29) to the last (cid:28)that way (cid:29) of this para and one sentence w ill be added in this para No.5 in the last line. That the sentence is (cid:28)the averm ents of para 3 and 4 of the Plaint are denied by defendants. (cid:29)

5. The amendment as sought for by the defendants was objected to by the pla intiffs contending that if amendment is allowed it would change the character of the suit which is not permissible under the law. The trial Court took up the ma tter on 17.08.2010 and after threadbare discussion rejected the amendment which is the subject matter in this revision petition.

6. Heard Mr. HRA Choudhury, learned Senior counsel assisted by Mrs. R Choud hury, learned counsel appearing for the petitioners. Also heard Mr. S Ali, learn ed counsel appearing for the opposite parties.

7. Opening the argument on behalf of the petitioners, Mr. Choudhury, learne d Senior counsel would contend that the Court has the power at any stage of the proceedings to allow either party to alter or amend his pleadings in such manner and on such terms as may be just, which may be necessary for the purpose of det ermining the real questions in controversy between the parties, however, there i s a rider that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that in spite of due diligen ce the party could not have raised the matter before the commencement of trial. The commencement of the trial has not yet began and due to misunderstanding of i nstructions taken by the engaged counsel, some error has been committed in writi ng the written statement, which are inadvertent mistake and could not be discove red earlier though there is due diligence in conducting the case. Learned counse l has further contended that the amendment, if allowed, would not cause any prej udice to the plaintiffs.

8. n the following decisions: - 1) 2) Ors.) 3) hi N) In support of his contentions, the learned Senior counsel has relied upo