Page No.# 1/9 vs Mrs Joymati Bala Ingti And 3 Ors
2025 Latest Caselaw 3632 Gua

Gauhati High Court

Page No.# 1/9 vs Mrs Joymati Bala Ingti And 3 Ors on 3 March, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                    Page No.# 1/9

GAHC010014392025




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

                         Case No. : CRP(IO)/52/2025

         BORODA INGTI @ MIKIR AND ANR
         S/O LATE PURNA RAM MIKIR, R/O CHAKORDOI, BORIPARA, P.S.-AZARA,
         GUWAHATI-17, DIST- KAMRUP (M), ASSAM

         2: MRS PRAMODA INGTI @ SAIKIA
          D/O LATE PURNA RAM MIKIR
         W/O LATE ATUL SAIKIA
          R/O NALAPARA
          P.S.-BASISTHA
          GUWAHATI-14
          DIST- KAMRUP (M

         VERSUS

         MRS JOYMATI BALA INGTI AND 3 ORS.
         W/O LATE RATAN INGTI, R/O DILIP HUJURI PATH, FATASIL AMBARI,
         HOUSE NO. 4, P.S.-FATASIL AMBARI, GUWAHATI-25, DIST- KAMRUP (M),
         ASSAM

         2:JAYANTA INGTI
          S/O LATE RATAN INGTI
          R/O DILIP HUJURI PATH
          FATASIL AMBARI
          HOUSE NO. 4
          P.S.-FATASIL AMBARI
          GUWAHATI-25
          DIST- KAMRUP (M)
         ASSAM

         3:DIGANATA INGTI
          S/O LATE RATAN INGTI
          R/O DILIP HUJURI PATH
          FATASIL AMBARI
          HOUSE NO. 4
                                                                   Page No.# 2/9

          P.S.-FATASIL AMBARI
          GUWAHATI-25
          DIST- KAMRUP (M)
          ASSAM

          4:PRASANTA INGTI
           S/O LATE RATAN INGTI
           R/O DILIP HUJURI PATH
           FATASIL AMBARI
           HOUSE NO. 4
           P.S.-FATASIL AMBARI
           GUWAHATI-25
           DIST- KAMRUP (M)
          ASSA

Advocate for the Petitioners       : Mr. G. C. Borah, Advocate

Advocate for the Respondents: Mr. R. Ali, Advocate

                                     BEFORE
          HONOURABLE MR. JUSTICE DEVASHIS BARUAH
                         Date of Hearing          : 03.03.2025

                          Date of Judgment         : 03.03.2025
                        JUDGMENT AND ORDER (ORAL)

Heard Mr. G. C. Borah, the learned counsel appearing on behalf of the petitioners. Mr. R. Ali, the learned counsel appears on behalf of the respondents/defendants.

2. This is an application file by invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution challenging the order dated 14.11.2024 passed in Petition No.795 arising out of Title Suit No.187/2022 whereby the application so filed by the plaintiffs/petitioners under Order VI Rule 17 read Page No.# 3/9

with Section 151 of the Code of Civil Procedure, 1908 (for short, 'the Code') for amendment of the plaint was rejected.

3. This Court has duly taken note of that the learned Trial Court had rejected the said amendment opining that the proposed amendment appears to be an attempt to fill in the gaps in the original pleadings rather than to address the same in the written statement against the counterclaim which is not the intended purpose of the amendment under Order VI Rule 17 of the Code and would unfairly prejudice the defendants as it would introduce new claims.

4. The learned Trial Court further observed that the proposed amendment introduces claims related to events that occurred over 40 years ago and is likely that the fresh suit based on these claims would be time barred.

5. Taking into account the reasons assigned, this Court finds it relevant to take note of that the plaintiffs had filed a suit against the defendants seeking declaration that they have tenancy rights over the suit land; that the Deed of Mutual Agreement dated 25.05.2018 is not binding with the plaintiffs; for recovery of possession of the suit land by evicting the defendants, their men, agents and all other persons claiming under them from the suit land by demolishing the illegal construction thereon and for Page No.# 4/9

permanent injunction restraining the defendants, their men, agents from alienating and doing any construction over the suit land.

6. The said suit was initially filed in the year 2019 and was registered and numbered as Title Suit No.253/2019. Subsequently, upon the change in the pecuniary jurisdiction, the suit was transferred to the Court of the Civil Judge (Junior Division) No.2 Kamrup (M) at Guwahati and renumbered as Title Suit No.187/2022.

7. In the said suit, the defendants had filed their written statement as well as counterclaim in the year 2019 itself wherein they brought on record that the suit land was purchased by the predecessors of the defendant Nos.1 to 4 way back in the year 1981, i.e. 38 years ago by the registered Sale Deed being No.8144/1981 dated 20.10.1981. It was also mentioned that pursuant thereto, the name of one Ratan Chandra Ingti was mutated in the revenue records on 09.05.1982 as the Pattadar. The plaintiffs had filed their written statement to the counterclaim also. When the suit reached the stage of hearing, i.e. when the suit was at the stage of filing the examination-in- chief by the plaintiffs, an application under Order VI Rule 17 read with Section 151 of the Code was filed on 27.03.2023 which was registered as Petition No.795. In the said application seeking Page No.# 5/9

amendment, the plaintiffs sought amendments as specifically mentioned in paragraph No.4 of the said application. It is relevant to take note of that by the way of the said amendments, the plaintiffs sought to challenge the Deed of Sale bearing Deed No.8144/1981 dated 20.10.1981 as well as the mutation order dated 09.05.1983 and in that regard inserted certain statements which as per the learned counsel for the petitioners were in tune with Order VI Rule 4 or the Code.

8. The respondents herein who were the defendants filed their written objection wherein it was mentioned that a barred claim is sought to be inserted by seeking amendment to the plaint. In that regard, it was specifically mentioned that in the Mutual Deed of Agreement dated 25.05.2018 which the plaintiffs though have challenged, there was a categorical mention about the Deed of Sale of the year 1981, and as such, the plaintiffs had due knowledge in the year 2018 itself, and if such amendment is permitted now, it would amount to allowing a time barred claim

in view of Article 59 of the 1st Schedule to the Limitation Act, 1963.

9. The learned Trial Court, as stated above, rejected the application on the grounds and reasons noted here in above.

10. The question therefore arises as to whether this Court Page No.# 6/9

ought to interfere with the impugned order dated 14.11.2024. This Court duly takes note of that the plaintiffs/petitioners have assailed instrument No.7 dated 25.05.2018 in the suit and have sought for appropriate declaration in that regard. The question as to whether the said document is fraudulently prepared and is not binding on the plaintiffs is a question of fact which can only be executed by the learned Trial Court at the trial of the suit. The plaintiffs have categorically stated that they had no knowledge about the Deed of Sale of the year 1981 and the Deed of Mutual Agreement dated 25.05.2018 have been fraudulently executed. The question as to whether the plaintiffs had knowledge about the Deed of Sale of the year 1981 or as to whether the Deed of Mutual Agreement dated 25.05.2018 is a fraudulent document are question which can only be adjudicated by the learned Trial Court during the trial of the suit. This Court further finds it relevant to observe that if the amendment so sought for is not allowed, it would not only adversely affect the plaintiffs but the real question in controversy between the parties would also remain undecided.

11. This Court has also duly taken note of the additional affidavit filed by the petitioners on 25.02.2025 wherein the various details have been given as regards the progress of the suit. It is seen that the suit was stayed on account of the COVID Page No.# 7/9

pandemic and thereupon the suit was again transferred to the Court of the Civil Judge (Junior Division) No.2 Kamrup (M) at Guwahati. Further to that, the original plaintiff No.1 had expired.

12. Taking into account the above, it is the opinion of this Court that for deciding as to whether the challenge to the Deed of Sale bearing No.8144/1981 dated 20.10.1981 and the subsequent mutation order dated 09.05.1983 is within the period of limitation or not is an aspect which has to be adjudicated by the learned Trial Court during the hearing of the suit on the basis of evidence.

13. Be that it as it may, it is also well settled that when an amendment is allowed, the said amendment should not unfairly prejudice the other side. It is relevant to observe that normally when an amendment is allowed, it dates back to the date of institution of the suit. If this Court permits the amendment by allowing the amendment to date back to date of institution of the suit, it is the opinion of this Court that the same would unfairly prejudice the defendants. Under such circumstances, it is the opinion of this Court that the doctrine of relation back should not be made applicable to the amendment so prayed for.

14. This Court cannot also be unmindful that the plaintiffs could have filed their amendment application even prior to the suit Page No.# 8/9

being fixed for hearing in view of the fact that they had due notice when the written statement-cum-counterclaim was filed. However, the petitioners/plaintiffs waited for the suit to reach the stage of hearing. This delay in filing the amendment application which this Court is inclined to allow, would relegate the suit back to the stage of pleadings.

15. Accordingly, this Court is of opinion that it is necessary that some costs have to be imposed while allowing the amendment.

16. In view of the above, this Court interferes with the impugned order dated 14.11.2024 passed in Petition No.795 arising out of Title Suit No.187/2022 and permits and allows the application filed by the plaintiffs being Petition No.795 dated 27.03.2023. It is categorically observed by this Court that the doctrine of relation back shall not apply to the amendment so allowed. In other words, the challenge to the Deed of Sale bearing Deed No.8144/1981 dated 20.10.1981 as well as the Order of Mutation dated 09.05.1983 would be deemed to have been challenged only on 27.03.2023, i.e. the date of filing of the amendment application.

17. This Court further imposes the cost of Rs.25,000/- upon the petitioners/plaintiffs which is required to be deposited before the learned Trial Court on the next date so fixed.

Page No.# 9/9

18. It has been informed by the learned counsels for both the parties that the next date is fixed on 04.03.2025 before the learned Trial Court. The learned Trial Court shall adjourn the suit tomorrow, i.e. on 04.03.2025 and fix the suit again on 17.03.2025. On the said date, the plaintiffs shall file their amended plaint and also deposit the cost of Rs.25,000/- hereby imposed before the learned Trial Court.

19. It is observed that if the amended plaint along with the cost of Rs.25,000/- so imposed herein is not filed and deposited respectively, the provisions of Order VI Rule 18 of the Code shall apply.

20. The respondents/defendants would be at liberty to file appropriate application before the learned Trial Court for release of the said amount of Rs.25,000/- and the learned Trial Court shall pass appropriate orders in that regard.

JUDGE

Comparing Assistant