Page No.# 1/8 vs Rajendra Prasad Trivedy And 3 Ors
2021 Latest Caselaw 3388 Gua

                                                                  Page No.# 1/8

GAHC010110302018




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : CRP(IO)/180/2018

         SANJAY KUMAR MORE AND ANR.
         SON OF SRI MAHENDRA KUMAR MORE, RESIDENT OF R.K. BORA ROAD,
         WARD NO. V, DHUBURI TOWN, DISTRICT- DHUBURI (ASSAM), PIN- 783301.

         2: AJAY KUMAR MORE
          SON OF SRI MAHENDRA KUMAR MORE
          RESIDENT OF R.K. BORA ROAD
         WARD NO. V
          DHUBURI TOWN
          DISTRICT- DHUBURI (ASSAM)
          PIN- 783301

         VERSUS

         RAJENDRA PRASAD TRIVEDY AND 3 ORS.
         SON OF LATE NITYA LAL TIWARI, R/12, BLOCK-II, SECOND FLOOR,
         RUKMINI GAON, GUWAHATI-, DISTRICT- KAMRUP(M), ASSAM, PIN-
         781036.

         2:PARTHA PRATIM TIWARI
          SON OF LATE NRITYA LAL TIWARI
          HOUSE NO. 39
          C/O. SRI MADAN SHARMA
         TARANI PATH
          RUKMINI GAON
          GUWAHATI- 781036
          DISTRICT- KAMRUP(M)
         ASSAM.

         3:SMT. SWARNALATA CHAKRABORTY
         WIFE OF SRI ASHESH CHAKRABORTY
          D/O. LATE NRITYA LAL TIWARI
          2ND LINK ROAD
          SILCHAR
                                                           Page No.# 2/8

             DISTRICT- CACHAR
             ASSAM
             PIN- 788001.

            4:UTTAM PRASAD
             SON OF LATE SHANKAR PRASAD
             PROP. OF M/S. PRASAD SANITARY
             D.K. ROAD
             DHUBURI
            ASSAM
             PIN- 783301

Advocate for the Petitioner   : MR. S J SARMAH

Advocate for the Respondent : MR. T H HAZARIKA (R2 & 3)


             Linked Case : CRP(IO)/181/2018

            SANJAY KUMAR MORE AND ANR.
            SON OF SRI MAHENDRA KUMAR MORE
            RESIDENT OF R.K. BORA ROAD
            WARD NO. V
            DHUBURI TOWN
            DISTRICT- DHUBURI (ASSAM)
            PIN- 783301.

            2: AJAY KUMAR MORE
            SON OF SRI MAHENDRA KUMAR MORE
             RESIDENT OF R.K. BORA ROAD
            WARD NO. V
             DHUBURI TOWN
             DISTRICT- DHUBURI (ASSAM)
             PIN- 783301.
            VERSUS

            RAJENDRA PRASAD TRIVEDY AND 3 ORS.
            SON OF LATE NITYA LAL TIWARI
            R/12
            BLOCK-II
            SECOND FLOOR
            RUKMINI GAON
            GUWAHATI-
            DISTRICT- KAMRUP(M)
            ASSAM
            PIN- 781036.
                                                                          Page No.# 3/8

           2:PARTHA PRATIM TIWARI
           SON OF LATE NRITYA LAL TIWARI
            HOUSE NO. 39
            C/O. SRI MADAN SHARMA
           TARANI PATH
            RUKMINI GAON
            GUWAHATI- 781036
            DISTRICT- KAMRUP(M)
           ASSAM.
            3:SMT. SWARNALATA CHAKRABORTY
           WIFE OF SRI ASHESH CHAKRABORTY
            D/O. LATE NRITYA LAL TIWARI
            2ND LINK ROAD
            SILCHAR
            DISTRICT- CACHAR
           ASSAM
            PIN- 788001.
            4:UTTAM PRASAD
           SON OF LATE SHANKAR PRASAD
            PROP. OF M/S. PRASAD SANITARY
            D.K. ROAD
            DHUBURI
           ASSAM
            PIN- 783301.
            ------------
           Advocate for : MR. S J SARMAH
           Advocate for : MR. T H HAZARIKA (R2 & 3) appearing for RAJENDRA PRASAD
           TRIVEDY AND 3 ORS.




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                      ORDER

Date : 10-12-2021

Heard Mr. R Dubey, the learned counsel appearing on behalf of petitioners and Mr. TH Hazarika, the learned counsel appearing on behalf of the respondent Nos. 1, 2 and 3.

As both the applications, i.e., CRP(IO) No. 180/2018 and CRP(IO) No. 181/2018 have been filed under Article 227 of the Constitution of India, arises Page No.# 4/8

from the same suit and are interconnected, I am taking both the applications for disposal by this common order.

CRP(IO) No. 180/2018

The instant revision application under Article 227 of the Constitution of India is filed challenging the order dated 09.04.2018 whereby the application filed Order VI Rule 17 registered and numbered as Misc. (J) Case No. 49/2017 arising out of Title Suit No. 12/2012 was rejected. The basic facts was that after the suit was filed by the plaintiff seeking specific performance of agreement dated 29.11.2011 in the month of April 2012, certain payments have been alleged to have been made by the plaintiff to the defendant No. 1 as well as the defendant No. 3 and on the basis thereof, the plaintiff sought for amendment by filing an application under Order VI Rule 17 to bring on record the said aspect of the matter by inserting a paragraph being paragraph 17(a) to the plaint. The defendant No. 1 had filed written objection to the said application stating inter alia that the said application was not maintainable in law and the trial of the suit had already commenced and it is a dilatory tactic adopted by the plaintiff to delay the further proceeding of the suit.

At this stage, it may be relevant herein to mention that the suit is at the stage of filing of the plaintiff's evidence on affidavit.

The trial court by an order dated 09.04.2018 rejected the said application on the ground that the plaintiffs were not diligent enough to apply for an amendment and more so on the ground that there was no reasons assigned as to why these facts were left to be incorporated in the plaint.

I have heard the learned counsel for the petitioners at length as well as the counsel appearing for the respondents.

Page No.# 5/8

I have also perused the application filed under Order VI Rule 17 filed by the petitioners whereby they sought for an amendment to bring on record a subsequent event pursuant to the filing of the suit. There have been no averments made in the said application to show the due diligence of the petitioners. Be that as it may, The petitioners have in the instant application at paragraph No. 5 has stated that as they did not know the importance of the said payment being made to the defendant Nos. 1 and 3 during the pendency of the suit would have any relevance, they did not inform their counsel and consequently no application under Order VI Rule 17 was filed seeking amendment prior to the commencement of the trial.

The counsel for the petitioner submits that the suit though old pending but it is still at a nascent stage of the trial and taking into consideration the statements made in paragraph No. 5 of the revision application, the same may be taken into consideration by this Court to show the petitioners' due diligence.

I have considered the said aspect of the matter and taking into account that the statements proposed to be inserted in paragraph 17(a) if true may have an important bearing in deciding the real question in controversy, I interfere with the order passed by the trial court dated 09.04.2018 thereby permitting the amendment, however, subject to a payment of Rs. 25,000/- as a cost which the petitioner shall deposit before the trial court at the time of filing its amended plaint on a date as would be subsequently mentioned in this order.

CRP(IO) No. 181/2018

This is an application under Article 227 of the Constitution of India challenging the order, dated 09.04.2018 whereby the leave sought for to bring on record certain documents as mentioned in the Petition No. 2277 dated Page No.# 6/8

08.11.2017 was rejected. It is the case of the petitioners that those documents which the petitioners sought leave to bring on record the same could not be filed at the time of filing of the suit on account of the fact that another suit was pending in Title Suit No. 146/2012 at Guwahati between the same parties and the petitioners who were the defendants in the said suit had exhibited those documents and as those documents were lying with the counsel for the plaintiff in Title Suit No. 146/2012.

It has been further submitted by the counsel on behalf of the petitioner that the said documents have relevance to the instant suit and if the impugned order in the instant proceeding is not interfered with the petitioner shall be greatly prejudiced.

Mr. Dubey, the learned counsel appearing on behalf of the petitioner refers to the judgment of the Supreme Court in the case of Kapil Kumar Sharma vs. Lalit Kumar Sharma, reported in 2013 14 SCC 612 to substantiate his contention that the Supreme Court had in that case granted the leave under Order VII Rule 14 on the ground that the cross-examination having not yet commenced there was no reason for the courts to debar the appellant therein from filing the additional documents in support of his claim. Paragraph Nos. 1 to 4 of the said judgment referred upon which Mr. Dubey relies is quoted herein below:-

"1.Leave granted. These appeals are directed against the judgment and order dated 6th November, 2007 passed by the Division Bench of the Delhi High Court against the common order passed in FAO(OS)No.443- 444 of 2007. The said appeals were directed against the order dated 23rd July, 2007, passed by the learned Single Judge, dismissing the appellant's application, Page No.# 7/8

under Order 7 Rule 14, CPC, seeking leave to file additional documents in Probate Case No. 40 of 1999 and Civil Suit No. 1632 of 1996.

2. The learned Single Judge by his said order dismissed the application and the said order was upheld by the Division Bench seemingly on the ground that the matters were ready for hearing and were at the stage of cross examination and, accordingly, such prayer could not be granted.

3. Having heard learned counsel for the respective parties, we are unable to agree with the decision of the Division Bench as also the Single Bench as we have been informed that the cross-examination has not yet commenced. In such a situation, we see no reason for debarring the appellant from filing the additional documents in support of his claim.

4. We accordingly, allow the appeals and set aside the orders passed, both by the Division Bench as also the Single Bench and allow the appellant's application under Order 7, Rule 14 CPC and direct that the additional documents filed by the appellant be taken up for consideration subject to proof thereof.

Taking into consideration the said judgment of the Supreme Court and further taking into consideration that the respondent who are defendants in the suit can very well cross-examine the plaintiff in respect of the said documents, I grant the leave to the petitioner to bring on record the documents as sought for in petition No. 227 dated 08.11.2017.

The impugned order dated 09.04.2018 is also interfered with.

In view of the above decision and observations so made, the parties herein are directed to appear before the trial court on 04.01.2022 on which date the Page No.# 8/8

plaintiff shall file their amended plaint as well as the deposit an amount of Rs. 25,000/- as cost before the trial court. The deposit of the amount of Rs. 25,000/- as cost shall be a condition precedent for acceptance of the amended plaint. The defendant shall be at liberty to withdraw the same with the leave of the trial court. Further to that, taking into consideration that this is a suit pending since the year 2012, the court below shall permit the defendant to file their additional pleadings within a period of 30 days only in respect to the amended portion of the plaint, i.e., para 17(a). Thereupon taking into consideration, the necessity of framing additional issues, the court would fix the suit for filing of the evidence of the plaintiff's witnesses. This exercise is to be completed within a period of 2 months from the date of appearance of the parties before the court.

The interim order passed earlier stands vacated.

Both the applications stands disposed of accordingly.

JUDGE

Comparing Assistant