Judgment · High Court · 2012

The facts of the case as are discernable from the petition may be brief Heard learned counsel for both the parties. 2. The present revision petition has been filed under Article 227 of the Constitution of India read with Section 115 of the CPC by the petitioner who was the defendant in T.S.No. 8 /2008 before the Court of learned Civil Judge, Bong aigaon, against the order dated 18.8.2008 passed in Misc.(J) Case No. 26/2008 b y which the prayer for amendment of the plaint sought for by the plaintiff in t he above referred T.S.No.8/2008 was allowed. 3. ly stated as follows. 4. The present respondent Smti. Malabika Adhikari filed a title suit before the Court of learned Civil Judge, Bongaigaon against the petitioner Shri Jan ardan Brahma in T.S.No. 8/2008 claiming for declaration of title in respect of c ertain plots of land which have been described as schedules A,B and C to the afo resaid plaint. The aforesaid title suit was filed on 4.3.2008 and notice was i ssued to which the petitioner defendant filed his written statement on 23.5.200 8. It seems that the learned Trial Court passed a status quo order as regards the aforesaid suit land on 5.3.2008 . 5. Subsequently the plaintiff respondent herein filed a Misc. application f or amendment of the plaint. In the aforesaid application, the plaintiff sought f or the amendment of the plaint to bring in certain subsequent development which had occurred after filing of the suit, that is, regarding the alleged encroachme nt of the suit land by the defendant petitioner herein after passing of the stat us quo order by the learned trial Court. The plaintiff described the aforesaid e ncroachment portion of the suit land as Schedule-D. The plaintiff also sought for amendment in the cause title of the suit and also for fixing the Court fee to Rs 4 lakhs from the initial Rs 10 lakhs which t he plaintiff had declared for the purpose of filing the said suit. The petitioner defendant resisted the aforesaid application for amendmen 6. t of the plaint by filing his written objection. The main plea of the defendant petitioner is that, by the aforesaid amendment sought for, the nature and fea ture of the suit land would be changed and also reducing the variation of the suit from Rs 10 lakhs to Rs. 4 lakhs is also impermissible .

#7. The learned trial Court after considering the matter and hearing the learned counsel for the parties allowed the prayer for amendment of the plaint vide orde r dated 18.8.2008. The learned trial Court has elaborately dealt with all the co ntentions raised by the petitioner defendant and after referring to the releva nt law has come to the conclusion that allowing the aforesaid amendment would not lead to any change in the nature , feature and character of the suit land a nd also reducing of the valuation of the suit from Rs. 10 lakhs to Rs. 4 lakhs will not cause any immediate prejudice as much as the defendant would have ampl e opportunity to defend himself by filing the additional written statement agai nst the said proposed amendment. 8. It is also revealed from the records that the stage of the proceeding in the aforesaid title suit was at the stage of filing of written statement by the defe ndant. The (cid:28)Issues (cid:29) had not yet been framed. In other words, trial in the afor esaid case has not yet commenced. 9. In this regard one may refer to the Order 6 Rule 17 of CPC which provid es that the Court may at any stage of the proceedings allow either party to alt er or amend his pleadings in such manner and on such terms as may be just an d proper and all such amendment shall be made as may be necessary for the purp ose of determining the real questions in controversy between the parties. The proviso of the aforesaid Rule 17 will be applicable in the present case inas much as trial had not yet commenced. It is settled law that the amendment of the plaint is to be normally allowed mor e particularly at the pre trial stage. There are a catena of judgments passed by the Supreme Court where it has been he ld that amendment of pleadings at a pre trial stage may be liberally allowed. In this regard one may refer to the decision of the Supreme Court in (cid:28)Rajkumar Gurawara(Dead) through L.Rs Vs. M/s S.K.Sarwagi and Co. Pvt. Ltd and anr (cid:29), report ed in AIR 2008 SC 2303, wherein the Supreme Court had held that, (cid:28)5 & &..To put it clear, Order VI Rule 17 CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the procee dings on such terms as may be just. Such amendments seeking determination of th e real question of the controversy between the parties shall be permitted to b e made. Pre-trial amendments are to be allowed liberally than those which are so ught to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In t he latter case, namely, after the commencement of trial, particularly, after com pletion of the evidence, the question of prejudice to the opposite party may ari se and in such event; it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso. (cid:29) 10. Having gone through the entire records, this Court is of the opinion t hat while passing the order dated 18.8.2008 by the learned Civil Judge, Bongaig aon, there is no gross irregularity or any illegality in allowing the prayer of the plaintiff for amendment of the plaint. The proceeding is at the pre trial s tage. The amendment sought for would not amount to changing the nature and fe ature of the suit land. The defendant would have an ample opportunity to put up its defence and as such there is no possibility of causing any prejudice to th e defendant by allowing the aforesaid amendment of the plaint. 11. n. The revision petition stands dismissed. In view of the above, this Court finds no merit in the revision petitio Interim order passed earlier, if any, stands vacated. The parties are directed to appear before the learned Civil Judge, Bongaigaon on

24.4.2012 for further proceedings. Send a copy of this order to the learned Civil Judge, Bongaigaon.