Altab Hussain And Anr vs Helal Uddin
2022 Latest Caselaw 2394 Gua

                                                                        Page No.# 1/4

GAHC010055052022




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

                                 Case No. : CRP(IO)/54/2022

            ALTAB HUSSAIN AND ANR
            S/O. LT. ABDUL LATIF, R/O. VILL. ROUTHGRAM, P.O. KALIGANJBAZAR, P.S.
            AND DIST. KARIMGANJ, ASSAM.



            VERSUS

            HELAL UDDIN
            S/O. LT. ABDUL LATIF, R/O. VILL. ROUTHGRAM, P.O. KALIGANJBAZAR, P.S.
            AND DIST. KARIMGANJ, ASSAM, PIN-788720.



Advocate for the Petitioner   : MR H R A CHOUDHURY

Advocate for the Respondent : MR. A M BARBHUIYA

BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH

20.07.2022

Heard Mr. F. U. Barbhuiya, the learned counsel for the petitioners and Mr. A. M. Barbhuiya, the learned counsel for the respondent.

This is an application under Article 227 of the Constitution of India Page No.# 2/4

challenging the order dated 18.12.2021 passed by the Court of the Munsiff No. 3, Karimganj in Misc. (J) Case No.215/2019 arising out of Title Suit No.96/2014 whereby the application seeking amendment of the plaint was allowed.

I have perused the application seeking amendment. From a perusal of the said application for amendment of the plaint, it transpires that at the time of argument, the trial court directed to conduct survey of the suit land, and accordingly, appointed a Survey Commissioner to survey the suit land. In pursuance of the said order, the Circle Officer, Nilam Bazar surveyed the suit land and submitted the report. On the basis of the said report there arose certain discrepancies as regards the description and boundaries of the suit land which necessitated the filing of the said application under Order VI Rule 17 of the CPC. Pursuant to the filing of the said application, the defendants filed their written objection wherein it was mentioned that the application filed for the amendment of the plaint was at the belated stage, i.e. at the stage of argument. It was further mentioned that the alleged survey report is not correct and consequently the amendment application filed on the basis thereof was nothing but to delay the disposal of the suit.

The learned court below, after hearing the parties vide the impugned order dated 18.12.2021, allowed the said application for amendment.

Being aggrieved, the instant petition has been filed under Article 227 of the Constitution.

I have perused the impugned order and also heard the learned counsels for the parties. From a perusal of the impugned order it shows Page No.# 3/4

that the court below has taken into consideration the provision of Order VI Rule 17 of the CPC and more particularly to the proviso and had come to a finding that there was no negligence on the part of the plaintiff in preferring the application for amendment. The court below had further taken into account that due to the survey being carried out and the report being submitted, the said amendment was necessary for deciding the real question in controversy and if the amendment so prayed for is not allowed it would lead to multiplicity of the proceedings.

It further appears that the court below had also taken into account the judgment of the Supreme Court rendered in the case of Rejesh Kumar Agarwal and Others vs. K. K. Modi and Others, reported in (2006) 4 SCC 385.

The findings so arrived at by the court below are in consonance to the provision of Order VI Rule 17 of the CPC. Further to that, taking into account the provision of Order VII Rule 3 and the provision of Order XX Rule 5 of the CPC as well as the judgment of the Supreme Court in the case of Rejesh Kumar Agarwal (supra), this Court is of the opinion that the trial court was justified in passing the impugned order dated 18.12.2021.

Accordingly, this Court does not find any merit in the instant proceedings for which the instant petition deserves to be dismissed.

Be that as it may, it is also relevant to take note of that on account of the filing of the amendment application, inconvenience has been caused to the defendants for which this Court deems it proper to impose a cost of Rs.15,000/- (Rupees fifteen thousand) upon the plaintiff which the plaintiff shall deposit the same before the trial court within one month from today which shall be a condition precedent for acceptance of the amended plaint. The defendants shall be at liberty to withdraw the same with the leave of Page No.# 4/4

the trial court.

In view of the above, the instant petition stands disposed of.

JUDGE

Comparing Assistant