2: Barnali Bhuyan vs Pramod Kumar Sharma And 2 Ors
2021 Latest Caselaw 2953 Gua

                                                                 Page No.# 1/8

GAHC010288152018




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

                          Case No. : CRP(IO)/6/2019

         ON THE DEATH OF HARI KANTA BHUYAN, HIS LEGAL HEIR
         ASSAM.

         1.2: BARNALI BHUYAN
          D/O- LATE HARI KANTA BHUYAN
          R/O- G.N. BORDOLOI ROAD
          PANCHAVATI
          GUWAHATI
          DIST.- KAMRUP (M)
         ASSAM
          PIN- 781003

         VERSUS

         PRAMOD KUMAR SHARMA AND 2 ORS.
         DIRECTOR, BIPRO PHARMACEUTICALS PVT LTD, C/O- PRATIKSHA
         HOSPITAL, BARBARI, HENGRABARI, VIP ROAD, GUWAHATI- 36, DIST-
         KAMRUP(M), ASSAM

         2:NARAYAN DEKA
          S/O- LATE NABIN DEKA
          R/O- SAURAV NAGAR
          P.S- BASISTHA
          GUWAHATI- 28
          DIST- KAMRUP (M)
         ASSAM

         3:JONALI DAS
          SUBJECT TEACHER
          GOPAL BORO HIGHER SECONDARY SCHOOL
         W/O- LATE SANJIB DAS
          R/O- NIGAJI PAM PATH
         AMBIKAGIRI NAGAR
          P.S- GEETANAGAR
                                                                                     Page No.# 2/8

             GUWAHATI- 34
             DIST- KAMRUP (M)
             ASSA

Advocate for the Petitioner   : MR P K KALITA

Advocate for the Respondent : MR. G MISHRA (R1, R2)

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT AND ORDER (ORAL)

Date : 18-11-2021

Heard Mr. P.K.Kalita, the learned senior counsel appearing for the petitioner and Mr.

M.K. Sharma, the learned counsel appearing on behalf of the respondent.

2. This is an application under Article 227 of the Constitution of India challenging the

order dated 06/12/2018 passed in Misc. (J) Case No. 509/2017 arising out of Title Suit No.

84/2011, insofar as the rejection of the application under Order VI Rule 17 of the Code of

Civil Procedure, 1908 is concerned.

3. The factual matrix for the purpose of disposal of the instant proceeding is that the

plaintiff had filed a suit being Title Suit No. 84/2011 before the Court of the Civil Judge No. 1,

Kamrup(M) at Guwahati, which was subsequently endorsed to the Court of the Civil Judge

No.2, Kamrup(M) at Guwahati for disposal. In the said suit the plaintiff prayed for declaration

of right, title and interest of the plaintiff and for confirmation of possession in respect to the

suit land; to declare all sale deeds, power of attorney and other related documents, which

were produced and relied upon by the defendant Nos. 1 & 2 as void ab-initio and not binding Page No.# 3/8

on the plaintiff; for recovery of possession and permanent injunction. The defendant Nos.1 &

2 separately filed their written statement both on law as well as on facts. However, the

defendant No. 3 did not file any written statement. Subsequent thereto, an application was

filed under Order VI Rule 17 of the CPC on 12/07/2013 seeking certain amendment to the

plaint. Vide an order passed by the Court below, the said amendment was permitted and

thereupon the plaintiff filed an amended plaint. To the said amended plaint a joint additional

written statement was filed by the defendant Nos. 1 & 2. Pursuant thereto, issues were

framed and the plaintiff filed his evidence and the suit is at the stage of cross-examination of

the plaintiff's witnesses.

4. At that stage, a composite application was filed both under Order VI Rule 17 and

Order I Rule 10(2) of the CPC, whereby the petitioner, as plaintiff sought for impleadment of

Biopro Pharmaceuticals (P) Ltd. as the defendant No. 4 in the suit. By the said application,

the plaintiff sought to amend various paragraphs of the plaint as well as substitute the relief

No. (ii) by giving specific details. The defendants filed their written objection both on law and

facts. It was the specific stand taken by the defendants in their written objection that the

plaintiff has already changed two sets of lawyers to conduct the suit and the plaintiff had

already amended the plaint in detail through the second set of lawyers and as such the

amendment application should not be allowed. It was also the stand of the defendants that if

the new facts are brought on record, it would change the nature and character of the suit.

However, a perusal of the written objection do not show in any manner that any objection

was taken by the defendants as regards suppression of the material facts. The Court below

vide an order dated 15/11/2017 rejected the application on the ground that the trial had

commenced and the plaintiff did not show any reason that in spite of due diligence the Page No.# 4/8

plaintiff could not have amended the plaint prior to commencement of trial. The Court below

further held that the proposed amendment will introduce a totally new case diametrically

inconsistent to the one already pleaded in the plaint and thereby cause prejudice to the

Defendants. On the other hand, insofar as the prayer for impleadment of Biopro

Pharmaceuticals (P) Ltd. as defendant No. 4 to the suit is concerned, the same was also

rejected. Being aggrieved, the petitioner approached this Court by filing an application under

Article 227 of the Constitution of India, which was registered and numbered as CRP (I/O) No.

387/2017. This Court found that the order passed by the Court below dated 15/11/2017

suffers from jurisdictional error and consequently directed the Court below to de novo

adjudicate the Misc. (J) Case No. 509/2017 i.e. to decide afresh the issue of impleadment as

well as the amendment of the plaint. Pursuant thereto, the Trial Court vide order dated

06/12/2018 rejected the amendment application on the ground that the petitioner was not

duly diligent while conducting the case and consequently in view of the proviso to Order VI

Rule 17 of the CPC, the application was rejected. However, the Court below vide the order

impugned permitted the impleadment of Biopro Pharmaceuticals (P) Ltd. as a necessary party

for proper adjudication of the dispute and also imposed a cost of Rs. 1,000/- upon the

plaintiff. Being aggrieved by the said order dated 06/12/2018, the petitioner is before this

Court under Article 227 of the Constitution of India. It is relevant to take note that there is no

challenge to the order impugned insofar as the impleadment of Biopro Pharmaceuticals (P)

Ltd. as the Defendant No. 4 is concerned.

5. I have heard the learned senior counsel appearing for the petitioner as well as the

respondent.

6. Mr. PK Kalita, the learned senior counsel appearing on behalf of the petitioner submits Page No.# 5/8

that the impugned order dated 06/12/2018 on the face of it, clearly shows the total non-

application of the mind by the Court below inasmuch as the impugned order do not show any

reasons, except mechanically applying the proviso to Order VI Rule 17 of the CPC. He further

submits that on one hand the Court below by allowing the application under Order I Rule 10

CPC puts the suit back to the stage of pleadings and on the other hand, rejected the

application under Order VI Rule 17 of the CPC on the ground of commencement of trial,

which as per the learned senior counsel is the jurisdictional error committed by the Court

below.

7. Mr. M.K. Sharma, the learned counsel appearing for the respondent submits that that

the petition filed by the petitioner under Order VI Rule 17 CPC suffers from suppression of

material facts inasmuch as on the earlier occasion when the amendment application was filed

the same ground was being taken. He further submits that the suppression of material facts

can also be seen from the order dated 17/11/2017 itself that the defendants had taken the

certified copy of the sale deed and also exhibited as plaintiff's evidence. But now they are

trying to amend the pleadings by taking into account that the new sets of counsel had

advised them to amend the plaint. In that regard, the learned counsel Mr. MK Sharma has

referred to the judgment of the Supreme Court rendered in the case of Dalip Singh Vs. State

of U.P. reported in (2010) 2 SCC 114 to canvass his argument that when the party

approaches the Court on the question of suppression of material facts he is not entitled to

any benefit. He further submits that by the amendment which has been sought to be done as

by amending paragraph 4 of the plaint, the same would bring in new facts, which cannot be

permitted in an application by way of an amendment.

8. I have the learned counsel for the parties at length, perused the copy of the plaint, the Page No.# 6/8

written statement, the amended plaint, the additional written statement, the application

seeking amendment, the objection filed to the said application, the order dated 15/11/2017,

the order passed by this Court on 10/08/2018 as well as the impugned order dated

06/12/2018.

9. First and foremost, I am of the opinion that the Court below had committed a

jurisdictional error in rejecting the application under Order VI Rule 17 of the CPC on the

ground that the trial had commenced and on the other hand allowing the application under

Order I Rule 10 of the CPC thereby allowing the impleadment of a party. It is relevant to note

that when a party is impleaded in a suit, the suit would go back to the stage of pleadings and

the Code of Civil Procedure does not conceive of compartmentalization of a suit in respect to

the existing defendants and the newly added defendant(s). Under such circumstances once

that application under Order I Rule 10(2) of the CPC was allowed, the question of dismissing

the application under Order VI Ruler 17 of the CPC on the ground that the trial of the suit had

commenced does not arise in the facts and circumstances of the case. In fact, the impugned

order passed by the Trial Court suffers from complete non-application of the mind by the Trial

Court.

10. The second aspect of the matter, which also needs to be taken note of is the

submission made by the counsel appearing on behalf of the respondent that there has been

suppression of material facts insofar as the application filed under Order VI Rule 17 read with

Order 1 Rule 10 of the CPC is concerned. From a perusal of the impugned order, it does not

show that the Trial Court had looked into that aspect of the matter and the reason is

apparent in as much as in the written objection filed to the application seeking amendment

and addition of parties, there has been no objection taken by the respondent as regards Page No.# 7/8

suppression of material facts. Under such circumstances, the question of permitting the said

ground to be developed in this proceedings, I am of the opinion the same does not arise. The

third aspect is as to whether the amendment sought for would change the nature and

character of the suit and this aspect has arisen in view of the submission made by the

learned counsel for the respondent to the effect that the amendment sought in respect to

paragraph 4 would bring new facts, which were not there in the existing paragraph 4 of the

plaint.

11. The law as regards Order VI Rule 17 of the CPC i.e. amendment of the pleadings is

clear that all amendment can be permitted which are necessary for determining the real

question in controversy. The said provision of Order VI Rule 17 CPC does not prohibit new

facts being brought on record. What it prohibits that the new fact, which would change the

nature and character of the suit would not be permitted. In view of the same, the contention

of Mr.M.K. Kalita, the learned counsel appearing for the respondent is also rejected.

Consequently, the application seeking amendment is allowed by this Court but with a cost of

Rs. 25,000/- which the petitioner shall deposit before the Trial Court on 17/12/2021 when the

parties herein shall appear before the Trial Court.

12. At this stage it is relevant to take note that this Court vide an order dated 18/1/2019

stayed further proceedings before the Trial Court in the suit. The record further reflects that

the original plaintiff expired on 5/6/2019 and thereafter vide an order dated 28/8/2019, the

legal representatives of the original plaintiff/petitioner herein were substituted in the instant

proceedings. Again during the pendency of the instant proceedings the wife of the original

plaintiff/petitioner herein also expired and this Court had vide order dated 25/10/2021 struck

off her name from the records of the present case. It is also relevant herein to note that in Page No.# 8/8

view of the stay of the further proceedings of Title Suit No. 84/2011, no steps could have

been taken by the present petitioner herein who is the surviving legal representative of the

original plaintiff, before the Trial Court and consequently taking into consideration that the

original plaintiff expired on 5/6/2019, the suit had abated in the meantime. Taking into

consideration the fact that the present petitioner has been already substituted in the instant

proceedings, the same shall be deemed to be a substitution within the meaning of Order XXII

Rule 3 of the Code of Civil Procedure, 1908 for the purpose of the suit and the Court below is

directed to instruct the Bench Assistant to make necessary changes in the cause title of the

plaint accordingly. The present petitioner herein who by virtue of this order has been

substituted in the suit shall file the amended plaint on 17/12/2021 as fixed herein above.

13. With the above observations, the instant petition stands allowed.

JUDGE

Comparing Assistant