Page No.# 1/9 vs Mukti Rajkumar
2022 Latest Caselaw 2025 Gua

                                                                     Page No.# 1/9

GAHC010011242022




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

                                 Case No. : CRP(IO)/16/2022

            JITU RAJKUMAR AND ANR.
            S/O LT. KONWAR RAJKUMAR, R/O DANDUA, P.O.-NIZ DANDUA, P.S.-
            MORIGAON, DIST-MORIGAON, ASSAM, PIN-782104

            2: SMTI. FUL RAJKUMARI
            W/O LT. KONWAR RAJKUMAR
             R/O DANDUA
             P.O.-NIZ DANDUA
             P.S.-MORIGAON
             DIST-MORIGAON
            ASSAM
             PIN-78210

            VERSUS

            MUKTI RAJKUMAR
            S/O LT. KONWAR RAJKUMAR, R/O DANDUA, P.O.-NIZ DANDUA, P.S.-
            MORIGAON, DIST-MORIGAON, ASSAM, PIN-782104



Advocate for the Petitioner   : MR. D C C PHUKAN

Advocate for the Respondent : MS. R CHOUDHURY
                                                                           Page No.# 2/9



                                 BEFORE
                  HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                       ORDER

08.06.2022

1. Heard Mr. D.C.C. Phukan, the learned counsel for the petitioners and Ms. R. Choudhury, the learned counsel appearing on behalf of the respondent.

2. The instant application under Article 227 of the Constitution of India is filed challenging the orders dated 30.11.2021 passed in Misc (J) Case No. 115/2021 in connection with Title Suit No. 144/2021 as well as the order dated 30.11.2021 passed in Misc (J) Case No. 116/2021 arising out of Misc (J) Case No. 70/2021.

3. The brief facts of the case is that five plaintiffs filed a Suit before the Court of the Munsiff No. 1, Morigaon seeking declaration of their shares in respect to Schedule- A plot of land; for precept to be issued to the Circle Officer, Morigaon Revenue Circle with a direction to make separate patta for the suit land; for a delivery of possession of the shares to the plaintiffs by demolishing the permanent constructions after making partition of the suit land and alternatively it was also prayed that if the suit land i.e. the land described in Schedule-A appears incapable of partition, the Court may be pleased to put on sale the suit land and the said amount may be equally distributed amongst the shareholders. Apart from the said, a decree for permanent injunction restraining the defendants, their agents, labours etc. from entering into the plaintiff land in future was also sought for. In the plaint of the said suit, the Schedule - A Page No.# 3/9

property was described as :-

"Schedule "A"

A plot of land measuring 02 Bighas 04 Kathas 11 Lechas covered by Dag No-1517 P.P. No. 217 situated at Niz-Danduwa Kissam under Mouza- Danduwa in the District of Morigaon, Assam which is bounded by-

North-Amiya Rajkumar

South- P.W.D. Road

East- P.W.D. Road

West- Fani Nath

4. The said suit upon being filed was registered and numbered as Title Suit No. 144/2021. Along with the said suit, an injunction application was also filed under Order XXXIX Rule 1 & 2 read with Section 151 of the CPC seeking ad- interim injunction thereby restraining the opposite parties to make any constructions till the disposal of the suit. In the said injunction application also, the same Schedule-A to the plaint was incorporated.

5. The trial court vide an order date 31.03.2021 passed an ex-parte order of injunction thereby directing the opposite party / defendants not to carry out any construction in respect to the Schedule- A land. It further appears from the records that the defendant nos. 1 & 2 filed their written statement as well as written objection in the suit and in the injunction proceedings. Relevant to mention that in paragraph No. 13 of the written statement , it was mentioned that the boundary of the suit land shown in Scheldule- A is wrongly described in Page No.# 4/9

its South and East side. It was mentioned that in the South side of the suit land in Dag No. 1517 is land of Dag No. 1514 and in the East side of Dag No. 1517 is the land of dag no. 1515 belonging to the defendant no. 1. The other averments made in the written statement, however, is not essential for the purpose of the adjudication of the instant proceedings. Similarly in paragraph 13 of the written objection filed against the injunction application, it was mentioned that the Schedule-A land has been described in the schedule to the injunction application in the same manner as was mentioned in paragraph no. 13 of the written statement.

6. On the basis of the said averments made in the written statement and written objection, the plaintiffs filed two applications, one was an application under Order VI Rule 17 CPC which was registered and numbered as Misc. (J) Case No. 115/2021, whereby the plaintiff sought for amendment of paragraph no. 3 of the plaint by adding a few sentences as well as for amendment of the boundaries to the Schedule-A land whereby the relevant portion of the said amendment sought for as regards the Schedule-A boundary is quoted herein below:-

"Schedule "A"

A plot of land measuring 02 Bighas 04 Kathas 11 Lechas covered by Dag No-1517 P.P. No-217 situated at Niz-Danduwa Kissam under Mouza- Danduwa in the District of Morigaon, Assam which is bounded by-

North-( Dag NO-1503) Amiya Rajkumar, South-Land of Dag No-1514, East-Land of Dag No. 1515, West-Fani Nath (Dag No.-1518)."

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7. The other application was an application for amendment of the injunction application whereby amendment was sought as regards the Schedule to the applicants. The said application was registered and numbered as Misc. (J) Case No. 116/2021.

8. The Court below vide two separate orders dated 30.11.2021 and allowed both the applications seeking amendment to the plaint as well as the injunction application. It is against the said two orders that the defendant nos. 1 & 2 are before this Court as petitioners.

9. I have heard the learned counsel for the parties and perused the materials on records including the impugned orders. A perusal of the plaint discloses that the said suit has been filed in respect of immovable property. Order VII Rule 3 CPC requires that when a subject matter of the suit is immovable property, the plaint shall contain the description of the property sufficient to identify. This is so, so that the Court can draw up a proper decree as is required under Order XX Rule 3 of the CPC. It is the requirement of law that the plaintiff is to provide a proper identification of the immovable property. However, if the plaintiff committed an error and the said error has been objected to by the defendant, it is the responsibility of the trial court to insist upon the plaintiff for providing a proper identification of the immovable property forming the subject matter of the suit.

10. The Supreme Court in the case of Pratibha Singh & Anr. vs. Shanti Devi Prasad & Anr. reported in (2003) 2 SCC 330 had observed in paragraph no.15 of the said judgment that a duty is cast upon the trial court to see that there is Page No.# 6/9

effective compliance to the provisions of Order VII Rule 3 CPC as well as Order XX Rule 3 CPC as a defect in the court record caused by overlooking the said provisions would deprive the decree holder of the fruits of the decree and as such it is the requirement of law that the trial court should insist upon due compliance to the provisions of Order VII Rule 3 CPC and Order XX Rule 3 CPC. Paragraph 15 of the said judgment is quoted herein below:-

"15. Order VII 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 not 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 is the firths error."

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11. Now coming to the facts of the instant case, it would be seen that after the suit along with the injunction application was filed, the defendant nos. 1 & 2 had filed their written statement and written objection wherein in paragraph no.

13 had categorically stated that there was a defect in the boundaries mentioned in Schedule- A in both the plaint and injunction application. This necessitated the filing of the applications under Order VI Rule 17 CPC for seeking amendment to the boundaries of the Schedule-A.

12. The trial court vide the orders impugned have permitted the said correction / amendment to the boundaries of the Schedule-A which in the opinion of this Court is in accordance with the provisions of the Code of Civil Procedure as well as the dictum laid by the Supreme Court in the case of Pratibha Singh & Anr. (supra).

13. At this stage, another aspect also needs to be taken into account that amendment caused to the boundaries of a Schedule does not change the nature and character of the suit and as such a Three Judges Bench of the Supreme Court in the case of Sajjan Kumar Vs. Ram Kishan reported in (2005) 13 SCC 89 held that it is true that the plaintiff ought to have been diligent and prompt in seeking amendment in the plaint at an earlier 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. It was further observed that a proposed amendment was necessary for bringing to the fare the real question in controversy between the parties and the refusal to permit the amendment would create needless complication at the stage of execution in the event the plaintiff succeeds in the suit. Paragraph 5 of the said judgment is quoted herein Page No.# 8/9

below:-

"Having heard the learned counsel for the parties, we are satisfied that the appeal deserves 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 be corrected by the High Court in exercise of its supervisory jurisdiction, even if Section 115 Civil Procedure Code 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 at 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 bringing 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."

14. This Court upon perusing the facts of the case is of the opinion that as the suit is at the very initial stage, even the issues have not yet been framed and as such the amendment so allowed by the learned trial court vide the impugned orders dated 30.11.2021 in Misc (J) Case No. 115/2021 as well as Misc (J) Case No. 116/2021 do not suffer from any error in jurisdiction calling for any interference from this court.

15. Before parting with the instant record, it is also relevant to take note of the Page No.# 9/9

orders passed permitting the amendment in respect to an amendment application filed by five plaintiffs whereas the instant application has been filed only impleading the plaintiff no. 1 as respondent whereas the plaintiff nos. 2 (i) to 2 (iv) have not been made parties to the instant application. On that ground also, the instant application is not maintainable.

16. Consequently in view of the above, the instant petition stands dismissed. The interim order passed by this Court on 04.03.2022 whereby further proceedings in Title Suit No. 144 /2021, and Misc. (J) Case No. 70/2021 have been stayed is hereby vacated and the parties are directed to appear before the trial court on 27.06.2022.

JUDGE

Comparing Assistant