Gauhati High Court
Page No.# 1/ vs Umesh Konch And 4 Ors on 13 June, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/10
GAHC010078562025
2025:GAU-AS:8006
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/148/2025
SMTI ANJALI GOGOI
W/O LATE SUKLA GOGOI, R/O NO. 2 WARD, MILAN NAGAR, P.O. AND P.S.-
DHEMAJI, ASSAM, PIN-787057
VERSUS
UMESH KONCH AND 4 ORS.
RESIDENT OF NO.2 BHARALICHUK, WARD NO.4, NATUN NAGAR, P.O
DHEMAJI, DIST.- DHEMAJI, PIN-787057.
2:ON THE DEATH OF LATE RAJEN KONCH
HIS LEGAL HEIRS
NAMELY
2.1:SMT. DEBAJANI KONCH
W/O LATE RAJEN KONCH
R/O BHARALICHUK
WARD NO. 4
P.O.- DHEMAJI
DIST- DHEMAJI
PIN-787057
2.2:BORASHA KONCH
D/O LATE RAJEN KONCH
W/O BIPUL BARGOHAIN
R/O RANGKUP
P.O.- RANGKUP BULAKATA
DIST- DHEMAJI
ASSAM
PIN-787057
2.3:MISS TARALI KONCH
Page No.# 2/10
D/O LATE RAJEN KONCH
R/O BHARALICHUK
WARD NO. 4
P.O.- DHEMAJI
DIST- DHEMAJI
PIN-787057
2.4:PRGAYAN JYOTI KONCH
(MINOR)
S/O LATE RAJEN KONCH
R/O BHARALICHUK
WARD NO. 4
P.O.- DHEMAJI
DIST- DHEMAJI
PIN-787057
3:BHISMA KONCH
S/O LATE RAMESWAR KONCH
R/O NO. 2 BHARALICHUK
WARD NO. 4
NATUN NAGAR
P.O. AND P.S.- DHEMAJI
DIST- DHEMAJI
ASSAM
PIN-787057
4:ON THE DEATH OF JATIN KONCH
HIS LEGAL HEIRS
NAMELY
4.1:SMTI. RUPALI KONCH
D/O LATE JATIN KONCH
R/O NO. 2 BHARALICHUK
SURUZ NAGAR
NEAR TULSHIBARI
P.O. AND P.S.- DHEMAJI
PIN-787057
4.2:SMTI. TRIBLINA KONCH
D/O LATE JATIN KONCH
R/O NO. 2 BHARALICHUK
SURUZ NAGAR
NEAR TULSHIBARI
P.O. AND P.S.- DHEMAJI
PIN-787057
5:BHABEN KONCH
S/O LATE RAMESH KONCH
Page No.# 3/10
R/O NO. 2 BHARALICHUK
SURUZ NAGAR
NEAR TULSHIBARI
P.O. AND P.S.- DHEMAJI
PIN-78705
Advocate for the petitioner(s): Mr. BK Das
Advocate for the respondent(s): Mr. LK Borah
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
ORDER
13.06.2025
Heard Mr. BK Das, the learned counsel appearing on behalf of the petitioner.
Mr. LK Borah, the learned counsel who appears on behalf of the respondents.
2. The present petition has been filed challenging the order dated 12.03.2025
passed by the Court of the learned Civil Judge, (Junior Division) No.1, Dhemaji,
whereby the application filed by the petitioner being Petition No.372/2024 under
Order VI Rule 17 of the Code was rejected. The ground for rejection is that the
amendment sought for in the plaint which was at the stage when the trial had
begun and if the same is allowed, it would change the suit land thereby
changing the subject matter of the suit land which would cause injustice and
irreparable loss to the other side.
3. Mr. BK Das, the learned counsel appearing on behalf of the
Page No.# 4/10
petitioner/plaintiff submitted that the amendment so sought for was
necessitated on account of the fact that though in the plaint as well as the
evidence adduced, the plaintiff had mentioned the patta number wrongly to be
16 which ought to have been 63 and this aspect of the matter came into light
during the course of the cross examination of the Lat Mandal which was held on
25.04.2024. The learned counsel further submitted that all along the plaintiff
was under the impression that he was in occupation of the land in annual patta
No.16 of Dag No.231. The learned counsel further submitted that the suit has
been filed under Section 6 of the Specific Relief Act, 1963 (for short, the Act of
1963) seeking recovery of possession from the land where the petitioner was in
possession and being dispossessed, otherwise, in accordance with law. He
further submitted that on the northern boundary of the land as mentioned in
the Schedule ought to have been Go-Bat which was incorrectly mentioned as
land of Nikun Bharali on the basis of the Deed of Sale as mentioned in
paragraph 6 of the plaint.
4. Mr. LK Borah, the learned counsel appearing on behalf of respondents
strongly objected to the submission so made by the learned counsel appearing
on behalf of the petitioner and submitted that the case of the petitioner is a
misleading case, and, therefore, the petitioner is not entitled to the reliefs as
sought for in the instant application. The learned counsel appearing on behalf of
the respondents further submitted that if this amendment is allowed, that too,
at the stage where the examination-in-chief of the DW-1 had been submitted, it
would cause serious prejudice to the defendants. He further submitted that not
only in the plaint even in the evidence as well as in the cross examination, the
plaintiff had been consistently stating that the land is covered by annual patta
No.16 and not annual patta No.63.
Page No.# 5/10
5. I have heard the learned counsels appearing on behalf of the parties and
have given my anxious consideration to the submissions made.
6. This Court finds it relevant to take note of that the suit so filed by the
plaintiff is a suit for recovery of possession in terms with Section 6 of the Act of
1963. It is further pertinent to observe that a proceedings under Section 6 of
the Act of 1963 is a proceedings which is summary in nature and what is
required to be adjudicated therein is as to whether the plaintiff was in
possession of the suit land and the plaintiff was dispossessed otherwise in
accordance with law. The second aspect which is required is whether the
plaintiff had filed the suit within 6(six) months from the date of dispossession.
7. This Court further takes note of the provisions of Order VII Rule 3 as well
as Order XX Rule 7 of the Code which categorically mandate that it is not only
the duty of the plaintiff to give an accurate description of the land described in
the plaint, but it is also an incumbent and obligatory duty upon the Court to
ensure that the description in the plaint of the immovable property is correct.
8. This Court at this stage finds it relevant to take note of the judgment of the
Supreme Court in Puran Ram Vs. Bhaguram and Anr., reported in (2008)
4 SCC 102 wherein the Supreme Court has held that amendment of the
description of the land described in the plaint would not change the nature of
the suit and the suit would continue to be a suit for specific performance which
was the case before the Supreme Court in the said case. This Court further finds
it relevant to observe that in a recent judgment of the Supreme Court in the
case of Dinesh Goyal @ Pappu Vs. Suman Agarwal (Bindal) & Ors.,
reported in 2024 SCC Online SC 2615, the Supreme Court culled out the
principles when amendment should and should not be allowed. Paragraphs 11,
13, 14 and 17 being relevant are reproduced hereinbelow:
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“11. At this juncture, before proceeding to the merits of the case, let
us consider the law relating to the amendments of pleadings.
11.1 The settled rule is that the Courts should adopt a liberal
approach in granting leave to amend pleadings, however, the same
cannot be in contravention of the statutory boundaries placed on such
power. In North Eastern Railway Administration, Gorakhpur v. Bhagwan
Das it was held as under:
“16. Insofar as the principles which govern the question of
granting or disallowing amendments under Order 6 Rule 17 CPC
(as it stood at the relevant time) are concerned, these are also
well settled. Order 6 Rule 17 CPC postulates amendment of
pleadings at any stage of the proceedings. In Pirgonda Hongonda
Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363] which still
holds the field, it was held that all amendments ought to be
allowed which satisfy the two conditions : (a) of not working
injustice to the other side, and (b) of being necessary for the
purpose of determining the real questions in controversy between
the parties. Amendments should be refused only where the other
party cannot be placed in the same position as if the pleading had
been originally correct, but the amendment would cause him an
injury which could not be compensated in costs. [Also see
Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar (1990) 1
SCC 166.]”
11.2 Over the years, through numerous judicial precedents certain
factors have been outlined for the application of Order VI Rule 17.
Recently, this Court in Life Insurance Corporation of India v. Sanjeev
Page No.# 7/10
Builders Pvt. Ltd., after considering numerous precedents in regard to
the amendment of pleadings, culled out certain principles:-
(i) All amendments are to be allowed which are necessary for
determining the real question in controversy provided it does not cause
injustice or prejudice to the other side. This is mandatory, as is apparent
from the use of the word “shall”, in the latter part of Order VI Rule 17 of
the CPC.
(ii) In the following scenario such applications should be ordinarily
allowed if the amendment is for effective and proper adjudication of the
controversy between the parties to avoid multiplicity of proceedings,
provided it does not result in injustice to the other side.
(iii) Amendments, while generally should be allowed, the same should
be disallowed if –
(a) By the amendment, the parties seeking amendment does not
seek to withdraw any clear admission made by the party which confers
a right on the other side.
(b) The amendment does not raise a time-barred claim, resulting in
the divesting of the other side of a valuable accrued right (in certain
situations)
(c) The amendment completely changes the nature of the suit;
(d) The prayer for amendment is malafide,
(e) By the amendment, the other side should not lose a valid
defence.
(iv) Some general principles to be kept in mind are –
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(I) The court should avoid a hyper-technical approach; ordinarily
be liberal, especially when the opposite party can be compensated by
costs.
(II) Amendment may be justifiably allowed where it is intended to
rectify the absence of material particulars in the plaint or introduce an
additional or a new approach.
(III) The amendment should not change the cause of action, so as
to set up an entirely new case, foreign to the case set up in the plaint.
13. By way of the amendment, what is sought to be done is, to question
the validity of the Will, on the basis of which, the defendant sought to
have the suit dismissed, while also expanding the scope of adjudication
of the suit to include movable property. It has to be then, demonstrated
that – (a) determination of the genuineness of the Will is the necessary
course of action in determining the issues inter se the parties; and (b)
given the finding of the court below that the application was presented
post the commencement of the trial, it could not have been, despite due
diligence, presented prior to such commencement.
14. Be that as it may, the overarching Rule is that a liberal approach is
to be adopted in consideration of such applications. [See also: Sanjeev
Builders (supra); Rakesh Kumar Agarwal v. Rajmala Exports Pvt. Ltd.; Usha
Balasaheb Swami & Ors. v. Kiran Appaso Swami & Ors.9; B.K. Narayana
Pillai v. Parmeswaran Pillai].
17. Any and all delays in judicial processes should be avoided and
minimised to the largest extent possible, and should generally be, and are
rightly frowned upon. However, not in all cases can delay determine the
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fate of a Suit. The defendant submits that the time gap between submitting
the written statement to the Suit and the presentation of the application
seeking leave to amend is unexplained. If this argument of the defendant is
accepted, the question of Will shall remain undecided or at best will be
decided with great delay. The trial which has admittedly already
commenced, would be stalled by way of a challenge to the framing of
issues which, in turn, would not be in consonance with the object of Order
VI Rule 17 of CPC which is aimed at preventing multiplicity or multiple
avenues of litigation, subsumed under the umbrella of one dispute.”
9. This Court taking into account the aforesaid judgments is of the opinion
that what the petitioner seeks by filing an application under Order VI Rule 17 of
the Code was to rectify the details in the Schedule to the plaint which ought to
have been allowed by the learned Trial Court i.e. an amendment to the Schedule
to the plaint thereby substituting the word numerical ‘ 16′ with the numerical ’63’
against the annual patta as well as substituting the northern boundary of the
schedule land from the ‘land of ‘Nikun Bharali’ to ‘Go-Bat’.
10. Accordingly this Court, therefore, allows the instant application with the
following observation(s) and direction(s):
(i). The application filed being Petition No.372/2024 dated 08.11.2024 by
the petitioner stands allowed and thereby the Schedule of the plaint stands
amended by substituting the word numerical ‘ 16′ with the numerical ’63’ against
the annual patta and the northern boundary of the suit land which is ‘land of
Nikun Bharali’ stands substituted with ‘Go-Bat’;
(ii). This Court further directs the learned Trial Court to proceed with the
adjudication of the suit by directing the Sheristadar of the said Court to make
Page No.# 10/10the above-stated correction in the plaint by hand;
(iii). This Court grants a further opportunity to the defendants/respondent
herein to file further examination-in-chief in support of their case;
(iv). It is categorically observed that the amendment so allowed by this
Court as well as the observations made hereinabove, shall not affect the merits
of the trial in the suit.
(v). The order dated 12.03.2025 passed in Petition No.372/2024 arising out
of Title Suit No.2/2018 stands interfered with.
(vi). It is seen that vide the order dated 21.04.2025, this Court had stayed
the further proceedings of Title Suit No.2/2018. The said stay order stands
vacated and as the parties are duly represented before this Court, they are
directed to appear before the learned Trial Court on 07.07.2025.
11. With the above, the instant proceedings stands disposed of.
JUDGE
Comparing Assistant