4: Smti Rita Choudhury Baruah vs Smti. Shyamali Choudhury
2022 Latest Caselaw 2463 Gua

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GAHC010121392015




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

                               Case No. : CRP/425/2015

         BHABENDRA CH. CHOUDHURY
         S/O LT. BHABANI CHOUDHURY R/O BASANTIPARA, WARD NO. 3,
         ABHAYAPURI TOWN, P.O. and P.S. ABHAYAPURI DIST. BONGAIGAON,
         ASSAM- 783384 CASTE- KOCH RAJBANSHI MOBC, MOBILE 919678418424

         1.1: Smti. Puspa Lata Choudhury
          W/o Late Bhabendra Ch. Choudhury
         resident of Abhayapuri Town
          Ward No. 3
          Basantipara
          P.O- Abhayapuri
          P.S- Abhayapuri
          Dist- Bongaigaon
          Assam- 783384

         1.2: Sri Gautam Choudhury
          S/o Late Bhabendra Ch. Choudhury
         resident of Abhayapuri Town
          Ward No. 3
          Basantipara
          P.O- Abhayapuri
          P.S- Abhayapuri
          Dist- Bongaigaon
          Assam- 783384

         1.3: Sri Jagadish Ch. Choudhury
          S/o Late Bhabendra Ch. Choudhury
         resident of Abhayapuri Town
          Ward No. 3
          Basantipara
          P.O- Abhayapuri
          P.S- Abhayapuri
          Dist- Bongaigaon
          Assam- 783384
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            1.4: Smti Rita Choudhury Baruah
             D/o Late Bhabendra Ch. Choudhury and W/o Sri Jogen Baruah
            resident of Abhayapuri Town
             Ward No. 3
             Shivpur
             P.O- Abhayapuri
             P.S- Abhayapuri
             Dist- Bongaigaon
             Assam- 78338

            VERSUS

            SMTI. SHYAMALI CHOUDHURY
            W/O LT. PRADIP CHOUDHURY VILL- BAKHARAPARA PART-II,
            BONGAIGOAN P.O. and P.S. BONGAIGAON ASSAM- 783380

            2:MISS. RASHMI REKHA CHOUDHURY
             D/O LT. PRADIP CHOUDHURY VILL- BAKHARAPARA PART-II
             BONGAIGAON P.O. and P.S. BONGAIGAON DIST. BONGAIGAON
            ASSAM- 783380.

            3:MISS. RUPREKHA CHOUDHURY
             D/O LT. PRADIP CHOUDHURY VILL- BAKHARAPARA PART-II
             BONGAIGOAN
             P.O. and P.S. BONGAIGAON DIST. BONGIGAON
            ASSAM- 783380

Advocate for the Petitioner   : MR.S K SAHARIA

Advocate for the Respondent :




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                          ORDER

Date : 25.07.2022

Heard Mr. S. K. Saharia, the learned counsel appearing on behalf of the Petitioner. None appears on behalf of the Respondent on call.

This is an application under Article 227 of the Constitution of the India challenging the order dated 11.06.2015 whereby the Court below instead of Page No.# 3/5

deciding the application under Order VI Rule 17 for amendment of the plaint at the appellate stage had directed that the said application shall be taken up for hearing alongwith main appeal.

It appears on record that the plaintiff has filed the suit which was registered and numbered as Title Suit No.30/2007 seeking declaration of the plaintiff's right, title, interest and possession over the suit land described in Schedule-B; for declaration that the decree dated 15.05.1991 is fraudulent, void, illegal and not binding upon the plaintiff; for perpetual injunction against the defendants restraining them from disturbing the peaceful possession of the plaintiff over the suit land described in Schedule-B; for temporary injunction and for cost of the suit. In the said suit, the defendants filed their written statement denying the statements and allegations made in the plaint.

Vide a judgment and decree dated 07.01.2011, the Trial Court had dismissed the said suit. In doing so, the Court below while deciding Issue No.VII came to a finding that the plaintiff has failed to prove the document Exhibit-1 by adducing evidence which was a Gift Deed for which the plaintiff did not have the right, title and interest over the suit land as alleged to have acquired through Exhibit-1, the gift deed.

Being aggrieved and dissatisfied, the Petitioner herein preferred an appeal before the Court of the District Judge, Bongaigaon. The said appeal was registered and numbered as Title Appeal No.1/2011.

It is the specific case of the Petitioner that during the pendency of the said appeal, the Petitioner was dispossessed from the Schedule-B land and under such circumstances, the Petitioner has filed an application under Order VI Rule 17 for amendment of the plaint.

The Opposite Party filed written objection to the said application denying Page No.# 4/5

to the allegations of dispossession. It was also the specific case of the Opposite Party that the claim of possession over the suit land has already been denied by the Trial Court and as such the alleged dispossession from the suit land is redundant.

The First Appellate Court vide an order dated 11.06.2015, after taking into consideration the various contentions so raised, was of the opinion that as the Petitioner herein has brought allegations of dispossession from the suit land by the Respondents/Defendants during the pendency of the appeal which has raised fresh factual questions and required to be substantiated by adducing additional evidence and as such the said application under Order VI Rule 17 shall be taken into consideration at the time of hearing i.e. Title Appeal No.1/2011 on merits.

It appears on record that this Court vide an order dated 30.09.2015 had issued notice and stayed further proceedings of Title Appeal No.1/2011 and the said interim order was extended vide an order dated 06.11.2015 until further orders.

I have heard the learned counsel for the Petitioner and perused the materials on record. From the materials on record, it transpires that the suit filed by the plaintiff for declaration of the plaintiff's right, title and interest as well as for possession was dismissed by the Trial Court. The question of the plaintiff's right, title and interest over the suit land is therefore pending adjudication before the appeal. Taking into account the judgment of the Supreme Court in the case of Union of India Vs. Ibrahim Uddin reported in (2012) 8 SCC 144 wherein the Supreme Court had categorically observed that an

application under XLI Rule 27 of the Code is required to be taken up for adjudication at the time of hearing of the appeal, the learned Trial Court also Page No.# 5/5

taking into account that an adjudication on the application under Order VI Rule 17 in the instant case would involve the question of bringing on record additional evidence passed the impugned order.

Considering the above, this Court does not find any infirmity in the order dated 11.06.2015 passed by the First Appellate Court and more so in the proceedings under Article 227 of the Constitution of India.

Be that as it may, taking into consideration that a subsequent cause of action has arisen upon the Petitioner pursuant to the filing of Appeal that too at a stage when the injunction application was pending, the Petitioner if so advised, would be at liberty to file an appropriate application under Section 151 of the Code bringing to the notice of the First Appellate Court that during the pendency of the said injunction proceedings, the Petitioner has been dispossessed from the Schedule-B land and the First Appellate Court after giving an opportunity of hearing to the other side, may consider passing appropriate orders at the time of final hearing of the appeal.

The interim order dated 30.09.2015 stands vacated. The parties are directed to appear before the First Appellate Court on 01.09.2022.

With above observations and directions, the instant Petition stands disposed of.

JUDGE

Comparing Assistant