High Court · 2012

M. R. Pathak, learned counsel appearing for respondent Nos. 1 to 6. This is an application under Section 115 CPC read with Article 227 of th e Constitution of India directed against the order dated 22.11.2011 in Misc (J) 712/11 arising out of T.S. No. 299/2008 passed by the learned Munsiff No. 4, Kam rup, Guwahati rejecting the application filed by the petitioner under Order 6 Ru le 17 read with Section 151 C.P.C. The petitioner/plaintiff had filed a suit for declaration of right, title and in terest, in respect of a plot of land measuring 1 Katha 10 Lechas, purchased thro ugh two registered sale deeds, recovery of possession and permanent injunction a gainst the respondents and in the suit one Mr. Soneswar Das was arrayed as profo rma defendant, who is stated to be the vendor of the plaintiff. In the suit, the defendant Nos. 1, 2, 3, who are added as respondent Nos. 1, 2, 3 in this petition, filed written statement and counter claim in November 2008. In the said written statement and counter claim, a declaration is sought for dec laring the sale deeds executed in favour of the plaintiff as illegal. It is stat ed in the written statement and counter claim that land measuring 2 Kathas was a cquired by the Government for construction of National Highway. It is also menti oned that Mihiram Das, father of the defendants had gifted 1 Katha 10 Lechas of land to the defendant No. 1 and that after the death of Mihiram Das, his heirs b ecame owners of 13 Lechas 1 Powa each. It is also pleaded that the vendor of th e plaintiff cannot claim the suit land to be his share of land and that he had n o right to sell 1 Katha 10 Lechas to the plaintiff. The plaintiffs filed written statement to the counter claim in the month of March 2009. The learned counsel for the parties submit that issues were framed on 07 .07.2010. While the case was set for evidence, the present application under Order 6 Rule 17 read with Section 151 C.P.C was filed by the plaintiffs for amendment of the plaint to declare the gift deed executed by late Mihiram Das in favour o f defendant No.1 as fraudulent, to issue precept to the Sub Register, Boko to re cord the cancellation of the same. The following paragraphs are also sought to b e inserted:- (cid:28)9 (i) That, there was no acquisition of land measuring of 2 Kathas by the Gove rnment out of total land measuring 1 Bigha, 3 Kathas, 3 Lechas covered by Dag No . 900 of K.P. Patta No. 464 of village Azara, Mouza Ramcharani in the district o f Kamrup which was belonged to late Mihiram Das as alleged in the written statement filled by the defendants. The defendant s are put to strictest proof of the same (cid:29). (cid:28)9 (ii) That, father of the defendant and proforma defendant Lata Mihiram Das n ever executed any gift deed in respect of land measuring 1 Katha 10 lechas out o f his land measuring 1 bigha, 3 kathas, 3 lechas covered by dag no 900 of K. P. Patta No. 464 of village Azara, Mouza Ramcharani in the district of Kamrup, Assa m in favour of defendant No. 1 and the Gift deed no. 239/00 dated 22/6/99 is fra udulent and liable to be cancelled. It may mentioned that the plaintiff has come to know about the alleged gift deed only from the written statement submitted b y the defendant No. 1, 2 & 3 (cid:29). A written objection was field against the said application for amendment. The learned trial court rejected the application for amendment by the im pugned order dated 22.11.2011 on the ground of lack of due diligence on the part of the plaintiff. The learned counsel for the petitioner submits that the amendment sought for wil l not change the nature and character of the suit land and the amendment sought for is necessary to avoid multiplicity of proceedings. The learned counsel, further, submits that though issues have been frame d, evidence has not been recorded. He has also submitted that the application fo r amendment could have been filed at an earlier point of time and that there was some lack of due diligence, as noted by the learned trial court, may not be ent irely incorrect. The learned counsel assiduously argues before the court that in the facts and circumstances of the case, unless the amendment as sought for is allowed, the plaintiff will suffer irreparable loss and injury. Mr. M. R. Pathak, learned counsel for the respondents draws the attentio n of this court to the proviso of Order 6 Rule 17 CPC and submits that although written statement was filed to the counter claim of the defendant Nos. 1, 2 & 3 by the plaintiff in the month of March 2009, the prayer for amendment was not ma de by the plaintiff immediately on coming to know about the stand taken in the w ritten statement. As the issues have been framed, trial has commenced and as the petitioner has failed to satisfy the learned trial court that he could not have raised the matter before the commencement of trial, the learned trial court com mitted no irregularities in rejecting the application. It is noted that the reasons for amendment as sought for by the plaintif f arose subsequent to the materials being disclosed in the written statement fil ed by the defendant Nos. 1, 2 & 3. However, there is no explanation as to why t he plaintiff waited for almost two and half years before taking recourse to fili ng of the application for amendment. But, nevertheless, the amendment, as sough t for, is necessary to determine the real questions in controversy between the p arties, more so in view of the fact that in the counter claim, the defendants ha ve sought for a declaration to declare the sale deeds executed in favour of the plaintiff as illegal. Taking that view, the application for amendment is allowed. The impugned order is set aside. However, considering the delay in filing the application fo r amendment, a cost of Rs. 10,000/- is imposed. The imposition of cost is the co ndition precedent for permitting the plaintiff to amend the plaint. The parties will appear before the learned trial court on 19.09.2012. Th e petitioner shall pay the cost on that date. The Civil Revision Petition is allowed as indicated above.