6: Anowara Khatun vs Anowar Hussain And 4 Ors
2021 Latest Caselaw 2556 Gua

                                                          Page No.# 1/5

GAHC010075042019




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

                         Case No. : CRP(IO)/105/2019

         ON DEATH OF LATE ROHITON NESSA HER LEGAL HEIRS
         DIST.- BONGAIGAON, ASSAM

         1.1: ABDUR RAHIM
          S/O LT. SOBER ALI
          R/O VILL.-TUPKERCHAR
          P.S. ABHAYAPURI
          DIST.-BONGAIGAON
         ASSAM
          PIN-783384

         1.2: KHOLILUR RAHMAN
          S/O LT. SOBER ALI
          R/O VILL.-TUPKERCHAR
          P.S. ABHAYAPURI
          DIST.-BONGAIGAON
         ASSAM
          PIN-783384

         1.3: ABDUL JALIL
          S/O LT. SOBER ALI
          R/O VILL.-TUPKERCHAR
          P.S. ABHAYAPURI
          DIST.-BONGAIGAON
         ASSAM
          PIN-783384

         1.4: ABDUL BATEN
          S/O LT. SOBER ALI
          R/O VILL.-TUPKERCHAR
          P.S. ABHAYAPURI
          DIST.-BONGAIGAON
         ASSAM
          PIN-783384
                                                            Page No.# 2/5


1.5: ADURI KHATUN
 D/O LT. SOBER ALI
 R/O VILL.-TUPKERCHAR
 P.S. ABHAYAPURI
 DIST.-BONGAIGAON
ASSAM
 PIN-783384

1.6: ANOWARA KHATUN
W/O ABDUL MAJID
 D/O LT. SOBER ALI
 R/O VILL.-TUPKERCHAR
 P.S. ABHAYAPURI
 DIST.-BONGAIGAON
ASSAM
 PIN-78338

VERSUS

ANOWAR HUSSAIN AND 4 ORS.
S/O LT. MOKKER ALI, R/O VILL.-TUPKERCHAR, P.S ABHAYAPURI, DIST.-
BONGAI GAON, ASSAM, PIN-783384

2:AMIR HUSSAIN
 S/O LT. MOKKER ALI
 R/O VILL.-TUPKERCHAR
 P.S ABHAYAPURI
 DIST.-BONGAI GAON
ASSAM
 PIN-783384

3:JOYNAL ABEDIN
 S/O LT. MOKKER ALI
 R/O VILL.-TUPKERCHAR
 P.S ABHAYAPURI
 DIST.-BONGAI GAON
ASSAM
 PIN-783384

4:AFZAL HUSSAIN
 S/O LT. MOKKER ALI
 R/O VILL.-TUPKERCHAR
 P.S ABHAYAPURI
 DIST.-BONGAI GAON
ASSAM
 PIN-783384
                                                                                    Page No.# 3/5

            5:JALAL UDDIN
             S/O LT. MOKKER ALI
             R/O VILL.-TUPKERCHAR
             P.S ABHAYAPURI
             DIST.-BONGAI GAON
            ASSAM
             PIN-78338

Advocate for the Petitioner   : MR. B J MUKHERJEE

Advocate for the Respondent : MS. R CHOUDHURY


                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                            ORDER

Date : 27-10-2021

Heard Mr. B.J. Mukherjee, learned counsel for the Petitioners and Ms. R. Choudhury, the learned counsel for the Respondents.

2. By way of the instant petition the Petitioners have challenged the order dated 25/02/2019 passed in Title Suit No.45/2009, whereby the application for amendment under Order VI Rule 17 of the Code of Civil Procedure, numbered as Petition No.54/2019, was rejected as well as cross-examination of the Lat Mandal and other competent authority of the Circle Officer was dispensed with on the ground that the counsel for the Petitioner was not present when the matter was called upon. I am surprised that when an application for amendment was to be taken up for consideration, the learned Trial Court had fixed on the same date for examination of the official witnesses. This clearly shows lack of application of mind by the Trial Court, inasmuch as, if the amendment application is allowed, the question of going ahead with the examination of the official witnesses does not arise, in as much as if the amendment is allowed, the plaintiff would be permitted to file an amended plaint and thereupon the defendant shall also be given an opportunity of filing an additional written statement. This not only shows the non-application of mind but also shows the indifferent attitude of the Trial Court to the process of calling official witnesses. It is necessary to note that when official witnesses are summoned they appear before the Court by leaving aside their other official works and as such, the Courts should be very careful in fixing the dates for Page No.# 4/5

appearance of official witnesses. On this count alone, I am interfering with the order passed by the Trial Court dated 25/02/2019. It has been submitted on behalf of the Petitioner that the amendment so sought for, are in respect to the identification of the suit land, inasmuch as, by the proposed amendment the Petitioner sought for correction of Dag numbers and the Khatian numbers. It is no longer res-integra that there is a difference in the test to be applied when an application under Order VI Rule 17 of the CPC is to be considered in respect to the amendment of the pleadings on one hand and amendment of the schedule on the other hand. In respect to the amendment of the schedule, the said amendment should be liberally construed, inasmuch as, if such amendments are not permitted, it would lead to complication at the execution stage. In this regard, the judgments of the Supreme Court in the case of Sajjan Kumar Vs. Ram Kishan reported in (2005) 13 SCC 89 as well as this Court in the case of Harunor Roshid Vs. Smt. Jysotsna Phukan and two others dated 11/08/2017 would be relevant to be relied upon. Paragraphs 9 and 10 of the judgment of this Court passed in CRP (I/O) No. 76/2016 is quoted hereinbelow :-

"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 bylaw 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 be 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."

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

3. From the above quoted portion of the judgment, it would transpire that where the amendment sought for does not change any pleadings of the plaint, but it seeks to correct only the boundary as well as the Dag No. of the suit land, merely because there is delay in approaching the court for amending the plaint, it would not dis-entitle the plaintiff to correct the description of the suit land in the plaint inasmuch as, an incorrect description or mis- description of the suit land would result in creating complication at the execution stage. Apart from that, it is also the duty of the Trial Court to see to it that the immovable property for which the suit is filed is properly identifiable.

4. In view of the above, the instant application is allowed and the impugned judgment and order dated 25/02/2019 passed in Title Suit No.45/2009 is set aside. The plaintiff/petitioner shall file the amended plaint before the Trial Court on 12/11/2021 without fail and failure on the part of the petitioner to file the said amended plaint would result in consequences mentioned in Order VI Rule 18 of the CPC. On the said date, the parties shall appear before the Trial Court and the Petitioner shall deposit an amount of Rs. 15,000/- before the Trial Court and the defendant shall be at liberty to withdraw the said amount. The Trial Court shall thereupon proceed with the suit in accordance with law and the question of examination of the official witnesses shall be considered by the Trial Court without being influenced by the order dated 25/02/2019 passed in Title Suit No.45/2009.

JUDGE

Comparing Assistant