Sabitri Patowary vs Baputi Rangshal And 2 Ors
2021 Latest Caselaw 2687 Gua

                                                                                 Page No.# 1/4

GAHC010092072018




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

                                 Case No. : CRP(IO)/152/2018

            SABITRI PATOWARY
            W/O- SRI JOGESWAR PATOWARY, R/O- FATSHIL AMBARI, SWAHID KUMUD
            GOGOI PATH, GUWAHATI-25, KAMRUP(M), ASSAM

            VERSUS

            BAPUTI RANGSHAL AND 2 ORS.
            S/O- BHOLA RAM RANGSHAL, R/O- MAINA KHURUNG, P.O AND P.S-
            GORCHUK, GUWAHATI- 781034, KAMRUP(M), ASSAM

            2:SRI DWIPEN RANGSHAL
             S/O- LATE MUCHI RANGSHAL
             R/O- MAINA KHURUNG
             P.O. AND P.S.- GORCHUK
             GUWAHATI- 781034
             KAMRUP (M)
            ASSAM

Advocate for the Petitioner   : MR. R J BORDOLOI

Advocate for the Respondent : MR. U B SARMA (R1)


                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                          ORDER

Date : 03-11-2021

Heard Mr. R. Ali, the learned counsel appearing for the petitioner and Mr. U.B. Sarma, the learned counsel for the respondent Nos.1 and 2.

2. This is a petition under Article 227 of the Constitution of India challenging the order Page No.# 2/4

dated 09/04/2018 passed by the Munsiff No.2, Kamrup, Guwahati in Misc. (J) Case No. 388/2017 arising out of Title Suit No. 197/2016, whereby the application seeking amendment of the plaint was rejected on the ground that the stand taken by the plaintiff in the suit and the amendment sought for are contradictory in nature and a party cannot be allowed to take away admission made earlier by taking recourse to amendment.

3. The counsels for the parties before me had submitted that the suit the is at the stage before preemptory hearing (SPBH) framed and consequently, the trial is yet to commence.

4. The provision of Order VI Rule 17 of the Code of Civil Procedure stipulates that amendments of the pleadings can be permitted at any stage of the suit, which are necessary for determining the real question in controversy. The proviso to Order VI Rule 17 of the CPC, which restricts the discretion of the Court, would only come into play once the trial had commenced. As in the instant case, the trial is yet to commence, the question therefore, arises as to whether the amendment sought for is necessary for deciding the real question in controversy.

5. A perusal of the plaint would show that the plaintiff filed a suit for declaration of her right, title and interest over the Schedule-'A' land; for declaration that the sale deed No. 3275 dated 07/04/1970 is in respect to the Schedule-'A' land and the said sale deed is not binding upon the plaintiff; for permanent injunction etc. A further perusal of the plaint, more particularly paragraph 9, would disclose that the defendants had entered into the schedule-A land and tried to demolish the boundary wall forcibly and illegally by using muscle power, but did not succeed in their attempt. In paragraph 32 of the plaint as well as the relief marked as III would disclose that the permanent injunction has been sought for not to disturb the peaceful possession of the plaintiff over the Schedule-A land in any manner and for causing any kind of nuisance, threat and annoyance in respect to the Schedule-'A' land. The defendants filed their written statement stating inter alia in paragraph 6 itself that they are in possession of the Schedule-'A' land.

6. Pursuant to the filing of the written statement, the petitioner, as plaintiff, filed an application seeking amendment of the plaint on the ground that earlier lawyer had made mistake in stating that the plaintiff was in possession of the schedule land and this aspect of Page No.# 3/4

the matter though was brought to his attention. Accordingly, the plaintiff sought for amendment of the plaint to amend certain paragraphs of the plaint as well as also insert a relief seeking recovery of khas possession of the Schedule-'A' land. The defendants filed their written objection stating inter alia that the amendment would change the nature and character of the suit and consequently prayed that the application seeking amendment ought to be rejected. The Trial Court after hearing the parties rejected the application seeking amendment on the ground that such amendment, if allowed, would permit the plaintiff/petitioner to take necessary admission made earlier by taking recourse to the amendments.

7. I have perused the copy of the plaint, the written statement filed, the application seeking amendment and the objection so filed as well as also the impugned order. The question here arises as to whether the amendment so sought for is required for deciding the real question in controversy. There is no denial of the fact that the plaintiff had filed the suit for declaration of her right, title and interest in respect to the Schedule-'A' land and consequently, sought for permanent injunction not to disturb the possession of the plaintiff by the defendants in respect to the Schedule-'A' land. It is the case of the defendants that they are possessing the Schedule-'A' land.

8. Section 34 of the Specific Relief Act, 1963 stipulates that any person entitle to any legal right or to any right as to any property may institute a suit against any person denying or interested to deny, his title to such matter or right, the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief. A proviso has been added to Section 34 of the said Act of 1963, whereby, it has been categorically stated that no Court shall make any such declaration, where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

9. In the instant case, taking into account that originally, the plaintiff stand was that the plaintiff was in possession of the Schedule-'A' land and the defendant stand is that the defendant is in possession of the Schedule-'A' land and taking into account the proviso to Section 34 of the of the said Act of 1963, which stipulates that if a plaintiff is able to seek a further relief omits to do so, the plaintiff would not be entitled to any declaration, as sought for and further taking into consideration the judgment of the Supreme Court rendered in the Page No.# 4/4

case of Ram Saran and Anr. Vs. Smti. Ganga Devi reported in (1973) 2 SCC 60, the real question in controversy, therefore, arises is whether granting the declaration alone, in the facts of the case, would be sufficient without the prayer for possession, if it is found that the plaintiff in the suit is not in possession of the suit land. The statement made that the plaintiff was in possession at the time of filing of the suit in the plaint and the specific statement made that the defendant is in possession of the Schedule-'A' land in their written statement cannot be considered to be an admission material for the purpose of rejecting the application seeking amendment that too, when the legislature had permitted the Court to allow such amendments, which are necessary for deciding the real question in controversy between the parties. In that view of the matter, the impugned order is interfered with.

10. The amendment so sought for vide the amendment petition registered as Misc.(J) Case No. 388/2016 is allowed. The parties are directed to appear before the Trial Court on 18/11/2021 and on which date, the plaintiff shall file her amended plaint as well as also deposit an amount of Rs. 15,000/- before the Trial Court. Failure to do so by the petitioner/plaintiff would entail consequences under Order VI Rule 18 of the CPC. The defendant shall be entitled to withdraw the said amount of Rs. 15,000/- from the Trial Court.

11. With the above observations, the petition stands disposed off accordingly.

JUDGE

Comparing Assistant