Gauhati High Court
2: Upamanya Das vs Pankaj Kumar Jain on 18 June, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/6
GAHC010113992020
2025:GAU-AS:8191
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/123/2020
ON THE DEATH OF DILIP KUMAR DAS
HIS LEGAL REPRESENTATIVES
1.1: KAUSHIK DAS
S/O LATE DILIP KUMAR DAS
R/O HOUSE NO. 43
BASISTHAPUR BYE LANE NO. 3
WIRELESS
P.O. AND P.S.-DISPUR
DIST-KAMRUP(M)
ASSAM
PIN-781006
1.2: UPAMANYA DAS
S/O LATE DILIP KUMAR DAS
R/O HOUSE NO. 43
BASISTHAPUR BYE LANE NO. 3
WIRELESS
P.O. AND P.S.-DISPUR
DIST-KAMRUP(M)
ASSAM
PIN-78100
VERSUS
PANKAJ KUMAR JAIN
S/O SHRI BABULAL JAIN, R/O BIJOYNAGAR, P.O.-BIJOYNAGAR, P.S.-
PALASHBARI, DIST-KAMRUP, ASSAM, PIN-781122
Advocate for the Petitioners : Mr. S. Das, Advocate
Advocate for the Respondent : XXXX
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BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
Date of Hearing : 18.06.2025
Date of Judgment :18.06.2025
JUDGMENT AND ORDER (ORAL)
Heard Mr. S. Das, the learned counsel appearing on behalf
of the petitioners. None has appeared on behalf of the
respondent inspite of service being effect upon the respondent.
2. The petitioners herein have assailed the order dated
24.06.2019 passed in Misc.(J) Case No.154/2018 arising out of
Title Suit No.11/2014 whereby the Court of the learned Civil
Judge, Kamrup at Amingaon had rejected the application filed
under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for
short, 'the Code').
3. The learned counsel appearing on behalf of the petitioners
has drawn the attention of this Court to the application filed
under Order VI Rule 17 of the Code. The learned counsel
appearing for the petitioners further submitted that on account
of the inadvertence of the earlier counsel in not inserting the
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Schedule-A(i) to the plaint, the issues which arise for
consideration before the suit cannot be properly adjudicated and
it is under such circumstances, at a time of preparation of the
evidence on affidavit of the plaintiff, the newly engaged counsel
had advised for filing an application under Order VI Rule 17 of
the Code seeking amendment of the plaint. The learned counsel
for the petitioners further drawing the attention of the contents
of the application under Order VI Rule 17 of the Code submitted
that from a perusal of the said application itself it would show
that the amendments which have been sought for would not
change the nature and character of the suit. He therefore
submitted that the amendments ought to have been allowed
taking into account that it was an inadvertence of the learned
counsel who was earlier representing the plaintiff, the Schedule-
A(i) was not inserted and immediately after engaging the newly
engaged counsel upon the death of the earlier counsel, this
aspect came to light. He therefore submitted that the learned
Trial Court ought not to have rejected it merely on the ground of
there being no due diligence in as much as the due diligence was
properly explained in paragraph No.2 of the said application.
4. This Court has duly considered the submission and has also
perused the said application by which amendment was sought
for. The reason so assigned by the learned Trial Court in rejecting
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the said application is only on the ground that the trial had
commenced and there was no due diligence. The approach
adopted by the learned Trial Court appears to be not proper
taking into account that the reading of paragraph No.2 of the
said application, it is seen that the petitioners had duly
mentioned as to how the inadvertence of not inserting the
Schedule-A(i) to the plaint was discovered and immediately
thereupon the application be filed.
5. Considering that the amendment so sought for is necessary
for determining the real question in controversy between the
parties, this Court is of the opinion that the said amendment
application is required to be allowed.
6. It is further pertinent to take note of that the suit had
proceeded to the stage of evidence, on account of the
inadvertence on the part of the plaintiff, for not inserting the
Schedule-A(i), the defendant No.6 would now again have to file a
fresh written statement.
7. Under such circumstances, this Court is of the opinion that
in order to balance the equalities awarding some costs would
compensate the defendant No.6. Accordingly, the instant petition
stands disposed of with the following observations and
directions:-
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(i) The Misc.(J) Case No.154/2018 so filed seeking
amendment of the plaint is allowed.
(ii) The petitioners are given the liberty to file the amended
plaint before the learned Trial Court by 09.07.2025. It is
observed that if the amended plaint is not filed on or before
the next date, the provisions of Order VI Rule 18 shall
apply.
(iii) This Court further takes note of that presently the suit
being Title Suit No.11/2014 has been renumbered as Title
Suit No.82/2024 and is transferred to the Court of the
learned Civil Judge (Junior Division), Kamrup, Amingaon.
(iv) The parties are directed to appear before the Court of
the Civil Judge (Junior Division), Kamrup, Amingaon
09.07.2025.
(v) This Court further imposes a cost of Rs.25,000/- which
the petitioners are required to deposit before the learned
Trial Court at the time of submission of the amended plaint.
It is observed that the depositing of the said amount of
Rs.25,000/- before the learned Trial Court shall be a
condition precedent for acceptance of the amended plaint.
(vi) The defendant No.6 in the suit would be at liberty to file
appropriate application before the learned Trial Court for
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release of the said amount and the learned Trial Court shall
pass appropriate order.
JUDGE
Comparing Assistant
