Reba Rani Paul vs On Death Of Mintu Kumar Paul His Legal ...
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Gauhati High Court

Reba Rani Paul vs On Death Of Mintu Kumar Paul His Legal ... on 21 August, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                Page No.# 1/6

GAHC010207102019




                                                          2025:GAU-AS:11153

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

                         Case No. : CRP(IO)/284/2019

         NAKUL CHANDRA PAUL
         S/O- LATE DIGAMBAR CHANDRA PAUL, R/O- CK DAS ROAD, TEZPUR, P.O
         AND P.S- TEZPUR, DIST- SONITPUR, ASSAM

         1.1: REBA RANI PAUL
         W/O LATE NAKUL CHANDRA PAUL
         C.K. DAS ROAD
         TEZPUR
          POST OFFICE - TEZPUR DISTRICT- SONITPUR
         ASSA

         VERSUS

         ON DEATH OF MINTU KUMAR PAUL HIS LEGAL HEIRS - MANOJ KUMAR
         PAUL AND ANR
         BISWANATH

         1.1:MANOJ KUMAR PAUL
          R/O- MILANPUR
          BISWANATH CHARIALI
          DIST- BISWANATH
         ASSAM
          PIN- 784176

         1.2:UTTAM KUMAR PAUL
          R/O- MILANPUR
          BISWANATH CHARIALI
          DIST- BISWANATH
         ASSAM
          PIN- 784176

         1.3:TAPASH KUMAR PAUL
          R/O- MILANPUR
          BISWANATH CHARIALI
                                                                          Page No.# 2/6

             DIST- BISWANATH
             ASSAM
             PIN- 784176

            1.4:SUMITA MAZUMDAR
             R/O- H NO.9
             COLONY BAZAR
             NEAR BIJU CABIN
             KAHILIPARA
             GUWAHATI
            ASSAM
             781019

            2:ON THE DEATH OF DULAL CHANDRA PAUL HIS LEGAL HEIRS
             BISWANATH
            ASSAM

            2.1:PUSPA RANI PAUL
             R/O- KOCHGAON
             BISWANATH CHARIALI
             DIST- BISWANATH
            ASSAM
             PIN- 784176

            2.2:DIPAK PAUL
             R/O- KOCHGAON
             BISWANATH CHARIALI
             DIST- BISWANATH
            ASSAM
             PIN- 784176

            2.3:DIPA PAUL
             R/O- KOCHGAON
             BISWANATH CHARIALI
             DIST- BISWANATH
            ASSAM
             PIN- 78417

Advocate for the Petitioner   : MR. K SARMA, MR D DAS,MR. B J TALUKDAR

Advocate for the Respondent : MR. S C BISWAS, A I AHMED,MR. A IKBAL,MR. R BARUAH
                                                                               Page No.# 3/6



                                       :: BEFORE ::
                    HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                        O R D E R

21.08.2025

Heard Mr. K. Sarma, the learned counsel appearing for the petitioner. Also heard Mr. A. Ikbal, the learned counsel representing the respondents.

2. This is an application under Article 227 of the Constitution of India challenging the order dated 29.05.2019 passed by the learned Addl. District Judge, Biswanath in Title Suit No.01/2003 whereby an application made under Order 6 Rule 17 was dismissed.

3. The petitioner filed the suit against State Bank of India and the present respondents praying for a declaration that only the petitioner is entitled to receive the house rent from the tenant State Bank of India. The suit was decreed by the trial court. The Regular First Appeal being RFA 90/2006 was preferred before this Court. This Court had allowed the appeal and set aside the decree. This Court remanded the matter to the trial court directing the trial court to frame two particular issues and to decide them and pass fresh judgment.

4. In the judgment passed by this Court in RFA 90/2006, it was observed that the defendant no.4 had already obtained possession of a part of the suit property. This Court also held that in spite of that fact, the petitioner did not go for amending the plaint.

5. On the basis of the said observation of this Court, after the case was remanded to the trial court, the petitioner being the plaintiff filed an application under Order 6 Rule 17 of the Code of Civil Procedure praying for amendment of the plaint.

Page No.# 4/6

6. The trial court rejected the prayer of the petitioner on the ground that the petitioner was not diligent enough and after a long delay, that too after commencement of the hearing, filed the said application.

7. Mr. Sarma has submitted that amendment of the pleadings can be allowed by a court at any time to determine the actual issue involved in the suit.

8. Mr. Ikbal has pointed out that according to Order 6 Rule 17 of the Code of Civil Procedure no application or amendment is to be allowed after the commencement of trial, unless the court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In order to buttress his point, Mr. Ikbal has relied upon a judgment of this Court that was passed in Anil Ch. Nath v. Md. Aliul Islam & Ors., reported in 2009 1 GLT 517. Paragraphs 9 and 11 of the said judgment are quoted as under:

"9. From a bare reading of the provisions contained in order VI, rule 17, before the same underwent amendment in 2002, and the provisions of order VI, rule 17, as the same stand after amendments have been made thereto, it clearly transpires that by the Amendment Act, 2002, a proviso has been added to the provisions of rule

17. Under this proviso, no application for amendment shall be made after trial has commenced 'unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial'. This clearly shows that while the parameters of the powers of the court to allow amendment has been retained, the embargo, which the Legislature has imposed, is that even if a case for amendment is made out by a person, amendment will not be permitted if hearing of the suit has commenced unless the court comes to conclude that in spite of due diligence, the party could not have raised the matter before the commencement of trial. To put it a little differently, rule 17 casts a duty on the court to ensure that it does not permit amendment of pleadings after trial commences unless it has reasons to conclude that in spite of due diligence, the party, seeking amendment, could not have applied for amendment before the trial commenced. This duty has to be discharged by the court no matter how necessary the amendment, sought for, may Page No.# 5/6

be for the purpose of resolving the real issues in a given suit. Ideally, while allowing amendment of pleadings after commencement of trial, a court must assign cogent reasons as to why it considers that in spite of due diligence, the party, which Seeks amendment, could not have sought for amendment before the trial had commenced.

11. In order to appreciate the legislative intent behind the presently amended order VI, rule 17, a survey of the legislative history behind the amendments, which order VI, rule 17 have undergone, is necessary. It is pertinent to note in this regard that the Law Commission's recommendations reflected that the provisions contained in order VI, rule 17, allowing amendments, were delaying disposal of suits. With a view to deal with this situation, the Legislature, while enacting the Code of Civil Procedure (Amendment) Act, 1999, deleted Rule 17 of the Code in its entirety. With this deletion of rule 17, no amendment of any pleading, at any stage of the suit, became legal or feasible. This was followed by serious resistance by men in law all over the country. Responding to the agitation against complete deletion of the provisions of Rule 17, the Legislature, with the help of Code of Civil Procedure (Amendment) Act, 2002, restored order 17 by recognizing power of the courts to grant amendment, but exercise of this power was restricted by adding a new proviso. This legislative intent in adding the proviso to rule 17 is more than transparent, the intent being that after the trial commences, no amendment shall be allowed even if such an amendment is necessary for resolution of the real controversy in the suit or even if the amendment is such, which would not change the nature or character of the proceeding, unless the person, who applies for such an amendment, convinces the court-before it (court) considers the nature of the amendments sought for-that in spite of due diligence, he could not have sought for the amendments earlier. A reference, in this regard, may be made to the case of Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N., (2006) 12 SCC 1, wherein the Apex Court has observed as under:

"42. It is to be noted that the provisions of order 6, rule 17, CPC have been substantially amended by the CPC (Amendment) Act, 2002.

43. Under the proviso no application for amendment shall be allowed after the trial has commenced unless in spite of due diligence, the matter could not be raised before the commencement of the trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended order 6, rule 17 was due to the recommendation of the Law Commission since order 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognizing the power of the court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their court case and manifests the absence of due diligence on the part of the appellants disentitling them to relief."

9. Reverting to the case in hand, according to the proviso appended to Rule 17, no Page No.# 6/6

application for amendment shall be made after trial has commenced unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before commencement of trial. It goes to show that the embargo which the legislature has imposed is that even if a case for amendment is made out by a person, amendment will not be allowed if hearing of such suit has commenced unless the court comes to a conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial.

10. In the case in hand, the defendant no.4 had already taken over possession of a part of the suit property. Therefore, the petitioner should have immediately moved the trial court for amendment of the plaint. But it was not done. Therefore, it is clear that the petitioner failed to exercise due diligence. The petitioner filed the application for amendment of the plaint after going through the judgment passed by this court in RFA 90/2006. The trial court has rightly rejected the prayer for amendment of the plaint on the ground that the petitioner failed do exercise due diligence before filing of the application for amendment of the plaint after commencement of the trial.

11. Under the given circumstances, this Court is the opinion that the present petition is devoid of any merit and stands dismissed accordingly.

JUDGE

Comparing Assistant