Page No.# 1/5 vs Bipin Singha And 3 Ors
2021 Latest Caselaw 2525 Gua

                                                                  Page No.# 1/5

GAHC010104402019




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

                         Case No. : CRP(IO)/139/2019

         MANGLEM SINGHA AND 5 ORS.
         S/O. LT. SAILA SINGHA @ BABASENA SINGHA, VILL. KALACHERRA, P.O.
         BAZARICHERRA-788725, DIST. KARIMGANJ, ASSAM.

         2: RANJIT SINGHA
          S/O. LT. SAILA SINGHA @ BABASENA SINGHA
         VILL. KALACHERRA
          P.O. BAZARICHERRA-788725
          DIST. KARIMGANJ
         ASSAM.

         3: SHYAMJIT SINGHA
          S/O. LT. SAILA SINGHA @ BABASENA SINGHA
         VILL. KALACHERRA
          P.O. BAZARICHERRA-788725
          DIST. KARIMGANJ
         ASSAM.

         4: BISWAJIT SINGHA
          S/O. LT. SAILA SINGHA @ BABASENA SINGHA
         VILL. KALACHERRA
          P.O. BAZARICHERRA-788725
          DIST. KARIMGANJ
         ASSAM.

         5: SHYAM KANTA SINGHA
          S/O. LT. SAILA SINGHA @ BABASENA SINGHA
         VILL. KALACHERRA
          P.O. BAZARICHERRA-788725
          DIST. KARIMGANJ
         ASSAM.

         6: JAMINI SINGHA
         W/O. LT. ILABANTA SINGHA
                                                                                          Page No.# 2/5

             VILL. DHAMALIA
             P.O. UTTAR KRISHNAPUR-788025
             DIST. CACHAR
             ASSAM

             VERSUS

             BIPIN SINGHA AND 3 ORS.
             S/O. LT. BABATAN SINGHA, VILL. KALACHERRA, P.O. BAZARICHERRA-
             788725, DIST. KARIMGANJ, ASSAM.

             2:BABUCHAND SINGHA
              S/O. LT. BABATAN SINGHA
             VILL. KALACHERRA
              P.O. BAZARICHERRA-788725
              DIST. KARIMGANJ
             ASSAM.

             3:CHANDRAKALA SINGHA
             W/O. MONIHAR SINGHA
             VILL. KALACHERRA
              P.O. BAZARICHERRA-788725
              DIST. KARIMGANJ
             ASSAM.

             4:MOUSUMI SINGHA
              D/O. LT. MONIHAR SINGHA
             VILL. KALACHERRA
              P.O. BAZARICHERRA-788725
              DIST. KARIMGANJ
             ASSAM

Advocate for the Petitioner    : MR. N DHAR

Advocate for the Respondent : MR. A K TALUKDAR


                                     BEFORE
                      HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                              ORDER

Date : 26-10-2021

Heard Mr. N. Dhar, learned counsel for the petitioners as well as Mr. A.K. Talukdar, learned counsel appearing on behalf of the respondents.

The instant application is filed challenging the order dated 29.03.2019 whereby the application seeking amendment under Order VI Rule 17 read with Section 153 of CPC being numbered as 284/24 Page No.# 3/5

was rejected. For the purpose of disposal of the instant application, it is required to look into as to what amendment has been sought for by the plaintiffs/ petitioners herein. By way of the amendment application the petitioners sought to amend the Northern boundary of the Schedule to the plaint. The respondents have filed their objection seriously objecting that the said change to the Northern boundary of the plaint would change the nature and character of the suit. The learned Trial Court vide the impugned order rejected the application seeking amendment on the ground that the said amendment is not relevant for the decision of the real controversy between the parties as well as there was lack of diligence on the part of the petitioners.

I have heard learned counsel for the parties. Mr. Talukdar has strenuously objected to the amendment on the ground that if this amendment is permitted it would change the nature and character of the suit and it is also contradictory to the stand taken by the petitioners in the suit. The amendment sought for is in relation to change of the description of the Northern boundary. It needs to be taken note of that there is a difference between an amendment sought for amending the pleadings and an amendment sought seeking amendment of the description of the suit property. In the earlier case, the adjudication of the amendment application has to be done taking into consideration the provisions of Order VI Rule 17 of the Code and more particularly the proviso which stipulates that the person applying for amendment has to show that in spite of due diligence, the person could not have raised the matter before the commencement of the trial. However, in the later case i.e. where amendments are sought in respect to correction of the description of the suit land then in that case in view of Order VII Rule 3 and Order XX Rule 9 coming into play, such amendment applications are to be liberally construed taking into account that it is also the duty of the Trial Court to see to it that the suit property is properly identified. In this regard, the judgment of the Supreme Court in the case of Pratibha Singh Vs. Shanti Devi Prasad reported in (2003) 2 SCC 330 and more particularly paragraph 15 and 17 are quoted herein below :-

"15. Order 7 Rule 3 of the CPC requires where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it. Such description enables the Court to draw a proper decree as required by Order 20 Rule 3 of the CPC. In case such property can be identified by boundaries or numbers in a record for settlement of survey, the plaint shall specify such boundaries or numbers. Having perused the revenue survey map of the entire area of R.S. plot No. 595 and having seen the maps annexed with the registered sale deeds of the defendant judgment-debtors we are clearly of the opinion that the sub-plots 595/1 and 595/11 were not capable of being identified merely by boundaries nor by numbers as sub-plot numbers do not appear in records of settlement or survey. The plaintiffs ought to have filed map of the suit property annexed with the plaint. If the plaintiffs committed an error the defendants should have objected to promptly. The default or carelessness of the parties does not absolve the trial court of its obligation which should have, while scrutinizing the plaint, pointed out the omission on the part of the plaintiffs and should have insisted on a map of the immovable property forming subject-matter of the suit being filed. This the first error.

17. When the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 of the CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 of the CPC depending on the facts and circumstances of each case- which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152 of the CPC by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by Page No.# 4/5

the Executing Court as a question relating to execution, discharge sor satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent Court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case we think it would be more appropriate to invoke Section 47 of the CPC."

The observation made in the instant judgment also finds support from the judgment of the Supreme Court rendered in the case of Sajjan Kumar Vs. Ram Kishan reported in (2005) 13 SCC 89 and Usha Devi Vs. Rijwan Ahmed reported in (2008) 3 SCC 177. In fact this Court had also the occasion to consider in a similar circumstances and this Court had in an unreported judgment dated 11.08.2019 passed in the case of Md. Harunor Roshid and Ors. Vs. Jyotsna Phukan and Ors. (CRP (I/O) No. 76/2016) held at paragraph 9 and 10 which is quoted herein below :-

"9. The next case found to be relevant is the case of Sajjan Kumar (Supra), The relevant paragraph 2 and 5 of the said Full Bench decision of the Hon'ble Supreme Court is quoted below :

"2. The plaintiff-appellant is admittedly owner-cum-landlord of the suit property. He filed a suit for eviction against the respondent tenant. The proceedings in the suit were at a final stage when the plaintiff-appellant moved an application for amendment of the plaint. The proposed amendment sought the correction of the description of the suit premises in the plaint. It was alleged by the plaintiff-appellant that the description of the property given in the rent note itself was incorrect and the same description was repeated in the plaint and there would be complications at the stage of execution to avoid which the description of the suit premises as given in the plaint needed to be corrected."

"5. Having heard the learned counsel for the parties, we are satisfied that the appeal deserved to be allowed as the trial court, while rejecting the prayer for amendment has failed to exercise the jurisdiction vested in it by law and by the failure to so exercise it, has occasioned a possible failure of justice. Such an error committed by the trial court was liable to the corrected by the High Court in exercise of its supervisory jurisdiction, even if Section 115 CPC would not have been strictly applicable. It is true that the plaintiff-appellant ought to have been diligent in promptly seeking the amendment in the plaint an early stage of the suit, more so when the error on the part of the plaintiff was pointed out by the defendant in the written statement itself. Still, we are of the opinion that the proposed amendment was necessary for the purpose of bring to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of execution in the event of the plaintiff appellant succeeding in the suit."

"10. In light of the facts of the present case where the amendment sought for does not change any pleading of the plaint but it seeks to correct only the boundary as well as the Dag number of the suit land, therefore merely, because there is a delay in approaching the court for amending the plaint, it would not disentitle the plaintiff to correct the description of the suit land in the plaint as it has been held by the Hon'ble Supreme Court in the case of Pratibha Singh (Supra) that misdescription of the suit land even be correct at the execution stage under Section 47 CPC and also by invoking Section 152 CPC. Hence, by following the ratio of the said cases of Sajjan Kumar (Supra) and Pratibha Singh (Supra), this Court is inclined to allow the prayer for amendment by Page No.# 5/5

holding that the learned court below had committed jurisdictional error in not permitting the amendment if the description of the suit land which appears to be contrary to above cited cases of Sajjan Kumar (Supra) and Pratibha Singh (Supra)."

In view of the above pronouncement and fact that the petitioner only seeks to amend the northern boundary of the suit land, I am inclined to permit the amendment as sought for vide the petition bearing No. 284/2024 in Misc. Case No. 385/2018. Accordingly, the petitioner shall file its amended plaint on or before 9.11.2021 before the Trial Court and failure to do so would result in consequence as provided under Order 6 Rule 18 of the CPC. The petitioner shall also deposit an amount of Rs. 15,000/- as costs before the trial Court and defendants shall be at liberty to collect the same. It is clarified that the Defendants in the Suit shall be at liberty to file additional written statement to the amended plaint only in so far as the amendment made is concerned.

The impugned order dated 29.03.2019 passed by the learned Munsiff No. 1, Karimganj, in Misc. Case No. 385/2018 is set aside. Interim order passed earlier, if any, stands vacated. Taking into consideration that the suit is of the year 2015, the trial Court is requested to dispose of the same expeditiously.

The petition stands disposed of.

JUDGE

Comparing Assistant