Gauhati High Court
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GAHC010235442016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/43/2016
MAHESWAR SARMAH and ANR
S/O LT. PARAMANANDA SARMAH
2: SMTI. JUNU DEVI
D/O LT. LT. PARAMANANDA SARMAH
BOTH ARE R/O VILL. JAGIROAD
P.O. and P.S. JAGIROAD
DIST- MORIGAON
ASSA
VERSUS
HEMEN SARMAH
S/O DINABANDHU SARMAH, VILLAGE JAGIGAON, P.O. JAGI, P.S.
JAGIROAD DIST MORIGAON, ASSAM
Advocate for the Petitioner : MRS.J GOGOI
Advocate for the Respondent : MS. R M SARMAH
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 25-10-2021
The Petitioners have challenged before this Court the order dated 20.02.2016 passed
by the court of the learned Munsiff No. 1, Morigaon in connection with Misc. (J) Case No.
82/2015, whereby, the application under Order VI Rule 16 of the CPC, filed by the Petitioners
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was rejected on the grounds and reasons stated therein.
2. The facts of the instant case, in brief, is that the Respondent herein, as plaintiff,
instituted a Title Suit No. being T.S. No. 8/2010 claiming inter-alia for right, title and
interest, for confirmation of possession and recovery of possession. The defendants No. 1, 2
and 3 had filed their written statement as well as counter claim, whereby, the defendants
sought for declaration of their right, title and interest in respect of the Schedule-A land and
confirmation of possession in respect to the Schedule-B land as well as recovery of
possession in respect to the Schedule-C land. The suit, which was filed by the
respondent(plaintiff) was registered and numbered as Title Suit No. 8/2010 and the counter
claim, which was being filed by the defendants (the petitioners herein) was registered and
numbered as Title Suit No. 62/2011. Both the suits were disposed of by separate judgment
and decree dated 29.08.2015, whereby, Title Suit No. 8/2010 was decreed in favour of the
plaintiff and Title Suit No. 62/2011 was dismissed. Against both judgments and decrees, two
separate appeals being Title Appeal No. 26/2015 and Title Appeal No.27/2015 were filed and
the Court of the Civil Judge, Morigaon by the common judgment and decree dated 26 th
November, 2015 remanded both the suits to the Court of Learned Munsiff No. 1, Morigaon,
for a fresh decision as per the observations made therein in the said judgment and decree.
3. Pursuant thereto, the petitioners herein moved an application under Order VI Rule 16
read with Section 151 CPC, whereby, the Petitioners herein limited their claim as regards their
right, title and interest as well as possession only over the Schedule-B and Schedule-C land.
The Respondent herein filed his written objection objecting to the petitions filed by the
Petitioners herein under Order VI Rule 16 CPC.
4. Vide the impugned judgment and order dated 20-02-2016, the Court of the Learned
Munsiff No. 1, Morigaon, rejected the petition filed by the Petitioners on the ground that it is
not permissible at this stage to permit the said amendment in view of the proviso to Order VI
Rule 17 CPC.
5. I have heard the learned counsel for the petitioners.
6. The amendment, which have been sought for by the Petitioners herein, do neither
change the nature and character of the suit nor pre-judiciously affects the rights of the
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plaintiff. In fact, by the said amendment what the Petitioners seek is limiting their claim in
respect to the land mentioned in the Schedule- B and Schedule-C plot of lands from the
Schedule-A plot of land, which was originally being made. In that view of the matter, I am of
the considered opinion, that the impugned judgment and order dated 20.02.2016 needs to be
interfered with, thereby permitting the amendment as sought for by the petitioners in Petition
No. 1840 dated 15.12.2015. It is made clear, however, that though, the leave to amend has
been granted by this Court, but the principles of the doctrine of relationship back shall not
apply and consequently the amendment shall be deemed to have been made from the date
of the order passed by this Court, i.e. today.
7. The Petitioners shall file their amended counter claim on 08/11/2021 before the Trial
Court positively else the provisions of Order VI Rule 18 of the Code of Civil Procedure, 1908
shall apply. The Respondent herein shall thereafter be entitled to file his additional written
statement to the amended counter claim.
8. Both the parties shall appear before the learned trial court on 8 th of November, 2021.
9. It is further observed that as the suit is of 2010, the learned Trial court shall try to
expeditiously dispose of the suit, preferably within a period of 7 (seven) months from today.
10. The petition stands disposed of.
11. No cost.
JUDGE
Comparing Assistant
