Page No.# 1/ vs Umesh Konch And 4 Ors
2025 Latest Caselaw 5265 Gua

Gauhati High Court

Page No.# 1/ vs Umesh Konch And 4 Ors on 13 June, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                  Page No.# 1/10

GAHC010078562025




                                                            2025:GAU-AS:8006

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

                          Case No. : CRP(IO)/148/2025

         SMTI ANJALI GOGOI
         W/O LATE SUKLA GOGOI, R/O NO. 2 WARD, MILAN NAGAR, P.O. AND P.S.-
         DHEMAJI, ASSAM, PIN-787057



         VERSUS

         UMESH KONCH AND 4 ORS.
         RESIDENT OF NO.2 BHARALICHUK, WARD NO.4, NATUN NAGAR, P.O
         DHEMAJI, DIST.- DHEMAJI, PIN-787057.

         2:ON THE DEATH OF LATE RAJEN KONCH
          HIS LEGAL HEIRS
          NAMELY

         2.1:SMT. DEBAJANI KONCH
         W/O LATE RAJEN KONCH
          R/O BHARALICHUK
         WARD NO. 4
          P.O.- DHEMAJI
          DIST- DHEMAJI
          PIN-787057

         2.2:BORASHA KONCH
          D/O LATE RAJEN KONCH
         W/O BIPUL BARGOHAIN
          R/O RANGKUP
          P.O.- RANGKUP BULAKATA
          DIST- DHEMAJI
         ASSAM
          PIN-787057

         2.3:MISS TARALI KONCH
                                 Page No.# 2/10

D/O LATE RAJEN KONCH
R/O BHARALICHUK
WARD NO. 4
P.O.- DHEMAJI
DIST- DHEMAJI
PIN-787057

2.4:PRGAYAN JYOTI KONCH
 (MINOR)
 S/O LATE RAJEN KONCH
 R/O BHARALICHUK
WARD NO. 4
 P.O.- DHEMAJI
 DIST- DHEMAJI
 PIN-787057

3:BHISMA KONCH
 S/O LATE RAMESWAR KONCH
 R/O NO. 2 BHARALICHUK
WARD NO. 4
 NATUN NAGAR
 P.O. AND P.S.- DHEMAJI
 DIST- DHEMAJI
ASSAM
 PIN-787057

4:ON THE DEATH OF JATIN KONCH
 HIS LEGAL HEIRS
 NAMELY

4.1:SMTI. RUPALI KONCH
 D/O LATE JATIN KONCH
 R/O NO. 2 BHARALICHUK
 SURUZ NAGAR
 NEAR TULSHIBARI
 P.O. AND P.S.- DHEMAJI
 PIN-787057

4.2:SMTI. TRIBLINA KONCH
 D/O LATE JATIN KONCH
 R/O NO. 2 BHARALICHUK
 SURUZ NAGAR
 NEAR TULSHIBARI
 P.O. AND P.S.- DHEMAJI
 PIN-787057

5:BHABEN KONCH
 S/O LATE RAMESH KONCH
                                                                      Page No.# 3/10

           R/O NO. 2 BHARALICHUK
           SURUZ NAGAR
           NEAR TULSHIBARI
           P.O. AND P.S.- DHEMAJI
           PIN-78705




Advocate for the petitioner(s): Mr. BK Das



Advocate for the respondent(s): Mr. LK Borah


                                      BEFORE
                 HON'BLE MR. JUSTICE DEVASHIS BARUAH


                                       ORDER

13.06.2025

Heard Mr. BK Das, the learned counsel appearing on behalf of the petitioner. Mr. LK Borah, the learned counsel who appears on behalf of the respondents.

2. The present petition has been filed challenging the order dated 12.03.2025 passed by the Court of the learned Civil Judge, (Junior Division) No.1, Dhemaji, whereby the application filed by the petitioner being Petition No.372/2024 under Order VI Rule 17 of the Code was rejected. The ground for rejection is that the amendment sought for in the plaint which was at the stage when the trial had begun and if the same is allowed, it would change the suit land thereby changing the subject matter of the suit land which would cause injustice and irreparable loss to the other side.

3. Mr. BK Das, the learned counsel appearing on behalf of the Page No.# 4/10

petitioner/plaintiff submitted that the amendment so sought for was necessitated on account of the fact that though in the plaint as well as the evidence adduced, the plaintiff had mentioned the patta number wrongly to be 16 which ought to have been 63 and this aspect of the matter came into light during the course of the cross examination of the Lat Mandal which was held on 25.04.2024. The learned counsel further submitted that all along the plaintiff was under the impression that he was in occupation of the land in annual patta No.16 of Dag No.231. The learned counsel further submitted that the suit has been filed under Section 6 of the Specific Relief Act, 1963 (for short, the Act of 1963) seeking recovery of possession from the land where the petitioner was in possession and being dispossessed, otherwise, in accordance with law. He further submitted that on the northern boundary of the land as mentioned in the Schedule ought to have been Go-Bat which was incorrectly mentioned as land of Nikun Bharali on the basis of the Deed of Sale as mentioned in paragraph 6 of the plaint.

4. Mr. LK Borah, the learned counsel appearing on behalf of respondents strongly objected to the submission so made by the learned counsel appearing on behalf of the petitioner and submitted that the case of the petitioner is a misleading case, and, therefore, the petitioner is not entitled to the reliefs as sought for in the instant application. The learned counsel appearing on behalf of the respondents further submitted that if this amendment is allowed, that too, at the stage where the examination-in-chief of the DW-1 had been submitted, it would cause serious prejudice to the defendants. He further submitted that not only in the plaint even in the evidence as well as in the cross examination, the plaintiff had been consistently stating that the land is covered by annual patta No.16 and not annual patta No.63.

Page No.# 5/10

5. I have heard the learned counsels appearing on behalf of the parties and have given my anxious consideration to the submissions made.

6. This Court finds it relevant to take note of that the suit so filed by the plaintiff is a suit for recovery of possession in terms with Section 6 of the Act of 1963. It is further pertinent to observe that a proceedings under Section 6 of the Act of 1963 is a proceedings which is summary in nature and what is required to be adjudicated therein is as to whether the plaintiff was in possession of the suit land and the plaintiff was dispossessed otherwise in accordance with law. The second aspect which is required is whether the plaintiff had filed the suit within 6(six) months from the date of dispossession.

7. This Court further takes note of the provisions of Order VII Rule 3 as well as Order XX Rule 7 of the Code which categorically mandate that it is not only the duty of the plaintiff to give an accurate description of the land described in the plaint, but it is also an incumbent and obligatory duty upon the Court to ensure that the description in the plaint of the immovable property is correct.

8. This Court at this stage finds it relevant to take note of the judgment of the Supreme Court in Puran Ram Vs. Bhaguram and Anr., reported in (2008) 4 SCC 102 wherein the Supreme Court has held that amendment of the description of the land described in the plaint would not change the nature of the suit and the suit would continue to be a suit for specific performance which was the case before the Supreme Court in the said case. This Court further finds it relevant to observe that in a recent judgment of the Supreme Court in the case of Dinesh Goyal @ Pappu Vs. Suman Agarwal (Bindal) & Ors., reported in 2024 SCC Online SC 2615, the Supreme Court culled out the principles when amendment should and should not be allowed. Paragraphs 11, 13, 14 and 17 being relevant are reproduced hereinbelow:

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"11. At this juncture, before proceeding to the merits of the case, let us consider the law relating to the amendments of pleadings.

11.1 The settled rule is that the Courts should adopt a liberal approach in granting leave to amend pleadings, however, the same cannot be in contravention of the statutory boundaries placed on such power. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das it was held as under:

"16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363] which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions : (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. [Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar (1990) 1 SCC 166.]"

11.2 Over the years, through numerous judicial precedents certain factors have been outlined for the application of Order VI Rule 17. Recently, this Court in Life Insurance Corporation of India v. Sanjeev Page No.# 7/10

Builders Pvt. Ltd., after considering numerous precedents in regard to the amendment of pleadings, culled out certain principles:-

(i) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.

(ii) In the following scenario such applications should be ordinarily allowed if the amendment is for effective and proper adjudication of the controversy between the parties to avoid multiplicity of proceedings, provided it does not result in injustice to the other side.

(iii) Amendments, while generally should be allowed, the same should be disallowed if -

(a) By the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side.

(b) The amendment does not raise a time-barred claim, resulting in the divesting of the other side of a valuable accrued right (in certain situations)

(c) The amendment completely changes the nature of the suit;

(d) The prayer for amendment is malafide,

(e) By the amendment, the other side should not lose a valid defence.

(iv) Some general principles to be kept in mind are -

Page No.# 8/10

(I) The court should avoid a hyper-technical approach; ordinarily be liberal, especially when the opposite party can be compensated by costs.

(II) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint or introduce an additional or a new approach.

(III) The amendment should not change the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint.

13. By way of the amendment, what is sought to be done is, to question the validity of the Will, on the basis of which, the defendant sought to have the suit dismissed, while also expanding the scope of adjudication of the suit to include movable property. It has to be then, demonstrated that - (a) determination of the genuineness of the Will is the necessary course of action in determining the issues inter se the parties; and (b) given the finding of the court below that the application was presented post the commencement of the trial, it could not have been, despite due diligence, presented prior to such commencement.

14. Be that as it may, the overarching Rule is that a liberal approach is to be adopted in consideration of such applications. [See also: Sanjeev Builders (supra); Rakesh Kumar Agarwal v. Rajmala Exports Pvt. Ltd.; Usha Balasaheb Swami & Ors. v. Kiran Appaso Swami & Ors.9; B.K. Narayana Pillai v. Parmeswaran Pillai].

17. Any and all delays in judicial processes should be avoided and minimised to the largest extent possible, and should generally be, and are rightly frowned upon. However, not in all cases can delay determine the Page No.# 9/10

fate of a Suit. The defendant submits that the time gap between submitting the written statement to the Suit and the presentation of the application seeking leave to amend is unexplained. If this argument of the defendant is accepted, the question of Will shall remain undecided or at best will be decided with great delay. The trial which has admittedly already commenced, would be stalled by way of a challenge to the framing of issues which, in turn, would not be in consonance with the object of Order VI Rule 17 of CPC which is aimed at preventing multiplicity or multiple avenues of litigation, subsumed under the umbrella of one dispute."

9. This Court taking into account the aforesaid judgments is of the opinion that what the petitioner seeks by filing an application under Order VI Rule 17 of the Code was to rectify the details in the Schedule to the plaint which ought to have been allowed by the learned Trial Court i.e. an amendment to the Schedule to the plaint thereby substituting the word numerical ' 16' with the numerical '63' against the annual patta as well as substituting the northern boundary of the schedule land from the 'land of 'Nikun Bharali' to 'Go-Bat'.

10. Accordingly this Court, therefore, allows the instant application with the following observation(s) and direction(s):

(i). The application filed being Petition No.372/2024 dated 08.11.2024 by the petitioner stands allowed and thereby the Schedule of the plaint stands amended by substituting the word numerical ' 16' with the numerical '63' against the annual patta and the northern boundary of the suit land which is 'land of Nikun Bharali' stands substituted with 'Go-Bat';

(ii). This Court further directs the learned Trial Court to proceed with the adjudication of the suit by directing the Sheristadar of the said Court to make Page No.# 10/10

the above-stated correction in the plaint by hand;

(iii). This Court grants a further opportunity to the defendants/respondent herein to file further examination-in-chief in support of their case;

(iv). It is categorically observed that the amendment so allowed by this Court as well as the observations made hereinabove, shall not affect the merits of the trial in the suit.

(v). The order dated 12.03.2025 passed in Petition No.372/2024 arising out of Title Suit No.2/2018 stands interfered with.

(vi). It is seen that vide the order dated 21.04.2025, this Court had stayed the further proceedings of Title Suit No.2/2018. The said stay order stands vacated and as the parties are duly represented before this Court, they are directed to appear before the learned Trial Court on 07.07.2025.

11. With the above, the instant proceedings stands disposed of.

JUDGE

Comparing Assistant