Page No.# 1/8 vs Jitu Kumar Medhi And 2 Ors
2025 Latest Caselaw 3928 Gua

Gauhati High Court

Page No.# 1/8 vs Jitu Kumar Medhi And 2 Ors on 10 March, 2025

                                                                    Page No.# 1/8

GAHC010146982024




                                                              2025:GAU-AS:2532

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

                               Case No. : CRP(IO)/267/2024

            MAHESH CH. MEDHI
            S/O- LATE SARAT CHANDRA MEDHI, R/O- GARAL (BHAKTOBORI), P.S.
            AZARA, MOUZA- RAMCHARANI, DIST. KAMRUP, ASSAM, PIN- 781017.



            VERSUS

            JITU KUMAR MEDHI AND 2 ORS.
            S/O- LATE BHAGAWAN MEDHI, R/O- GARAI (BHAKTOBORI), P.S. AZARA,
            MOUZA- RAMCHARANI, DIST. KAMRUP, ASSAM, PIN- 781017.

            2:SMTI SAROJANI MEDHI
            W/O- LATE BHAGAWAN MEDHI
             R/O- GARAI (BHAKTOBORI)
             P.S. AZARA
             MOUZA- RAMCHARANI
             DIST. KAMRUP
            ASSAM
             PIN- 781017.

            3:PRABHAT MEDHI
             S/O- LATE SARAT MEDHI
             R/O- GARAI (BHAKTOBORI)
             P.S. AZARA
             MOUZA- RAMCHARANI
             DIST. KAMRUP
            ASSAM
             PIN- 781017

Advocate for the Petitioner   : MR. R ALI, MR M BORO

Advocate for the Respondent : MR N P BARUAH (R-1 TO 3),
                                                                      Page No.# 2/8




                               BEFORE
            HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND


                        JUDGEMENT AND ORDER (ORAL)

Date of Judgment : 10.03.2025

1. Heard Mr. R.Ali, learned counsel for the petitioner/ plaintiff Sri Mahesh Chandra Medhi who has filed this petition under Article 227 of the Constitution of India challenging the order dated 09.07.2024 passed by the learned Civil Judge, Senior Division No.3, Kamrup(M), Guwahati in connection with Misc. (J) Case No. 456/2023 arising out of Title Suit No.124/2019.

2. It is submitted that the petitioner as plaintiff preferred Title Suit No.124/2019, seeking a decree of declaration of right, title and interest of Schedule-F land and recovery of possession of Schedule -L land being part of Schedule- F and also permanent injunction. Sri Jitu Kumar Medhi, Smti Sarojini Medhi and Sri Prabhat Medhi were arrayed as principal defendants whereas Sri Chandra Medhi and Uma Medhi were arrayed as proforma defendants in the aforementioned title suit. The defendants are contesting the title suit and they have submitted written statement. The defendants are also arrayed as respondents in the present petition.

3. The petitioner is aggrieved by the order dated 09.07.2024 passed by the learned trial court as the petitioner's prayer for amendment of the plaint was dismissed by the learned trial court. It is submitted that due to typographical errors in the prayer Nos. b and c of the plaint, the engaged counsel erroneously Page No.# 3/8

mentioned as principal defendant Nos. 1 and 2 instead of principal defendant Nos. 1, 2 and 3. It is further submitted that it has also been wrongly mentioned

in the 3rd line of paragraph-12 of the plaint in the Schedule-F and Schedule-G as Schedule -E and Schedule F. It is submitted on behalf of the petitioner/plaintiff that the petitioner learnt about the typographical errors when he was preparing his evidence-in-chief on affidavit to be submitted before the learned trial court. Thereafter, the petitioner filed an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (in short 'CPC') for correction of the typographical error by way of amendment and this petition was registered as Misc.(J) Case No. 456/2023. The respondents /defendants filed their written objection in Misc. (J) Case No. 456/2023. It has been elaborately discussed in the petition and reasons were assigned showing due diligence as to why the petitioner could not approach trial court for correction of those aforementioned typographical errors at the earlier stage of the case.

4. Heard Mr. N.P.Baruah, learned counsel for the respondent nos. 1, 2 and 3. It is submitted by the learned counsel that the errors cannot be termed as typographical errors. The amendment of the plaint will change the nature and character of the suit which is against the law. It is submitted that the order impugned by the petitioner has been correctly passed by the learned trial court. The counsel for the respondents has prayed to dismiss the petition.

5. It is further submitted by the respondents that the petition for amendment of the plaint had been submitted at the belated stage after prolonged three years of the pendency of the title suit.

6. The operative portion of the order dated impugned by the petitioner is reflected herein below verbatim:

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"Upon hearing and perusal, it appears that in para no.13 of the plaint plaintiff alleged that the principal defendant no.1 & 2 in collusion with defendant no.3 occupied the schedule- L land which is part of Schedule-F land without any right, title and interest. The plaintiff has right, title interest over Schedule-F & G land as per their family settlement and as such plaintiff has right for possession over the said Schedule -F & G land. Thus plaintiff has instituted the instant suit with a prayer for right, title interest over Schedule-F land and recovery of possession of Schedule-L land which is part of Schedule-F land by removing the structures made by the defendant no. 1 & 2. Thus it appears that the averments made in the plaint by the plaintiff is with respect to defendant no. 1 & 2 only in connection with the schedule-F land. If the prayer of the plaintiff / petitioner is allowed to insert the proposed amendment mentioned In Para-2 of the petition by including principal defendant no. 3 in prayer (b) it would change the nature and features of the instant suit. Thus, there is Inconsistency in the petition made by the plaintiff/ petitioner and the averments made in the plaint. The proposed amendment in the plaint if granted will raise inconsistency plea.

7. Moreover, it appears that the commencement of trial of the suit has started which is now pending in the stage of PW for which the petitioner has to show due diligence for amendment and in absence thereof no amendment can be permitted. It appears that the proposed amendment was well within the knowledge of the plaintiff and inspite of the same it was not inserted in the plaint at the time of filing of the suit. Thus, the plaintiff having failed to show due diligence and having regard to the nature of proviso to Order VI Rule 17 CFC the proposed amendment could not be permitted at this stage."

7. It submitted by the learned counsel for the petitioner that he is the absolute owner of the parcel of land described in Schedule -L and Schedule-F on the basis of the amicable partition between him and his brothers. The defendant/ respondent Nos. 1 and 2 who do not have right, title and interest over the Schedule- L land in collusion with defendant/ respondent No. 3 have been illegally occupying the aforementioned land i.e. Schedule -L land which is part of Schedule-F land. Moreover, it is submitted that this fact has been specifically mentioned in the paragraph-13 of the plaint. It is also mentioned in pagragraph-13 of the plaint that as per partition, the predecessor of defendant Nos. 1 and 2 got 4 katha of land in Schedule-E land, but at present the defendant/ respondent Nos. 1 and 2 are occupying 5 Katha 15 Lechas of land and similarly defendant/ respondent No. 3 who also got 4 Katha of land Page No.# 5/8

described in Schedule -D land is occupying 5 Kathas of land which clearly reveals that the defendant / respondent Nos. 1, 2 and 3 are occupying surplus land which is more than their share of land. It is further submitted that the pleadings clearly reveal that although there has been a typographical error in the prayer 'b' and 'c' of the plaint and in paragraph 12 of the plaint, the amendments of the Schedule of land and inserting defendant No. 3 will not change the nature and character of the suit. This amendment will be within the realm of the pleadings. The petitioner has relied on the decisions of the Hon'ble Supreme Court in the case of Baldev Singh & Ors. -vs- Manohar Singh & anr. reported in 2006 (6) SCC 498 wherein it has been observed as below:

"Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings".

8. The petitioner has further relied the case of Rameshkumar Agarwal - vs- Rajmal Exports Pvt. Ltd. & Ors reported in 2012 (5) SCC 337 wherein it has been observed as below:

"10) In Revajeetu Builders & Developers vs. Narayanaswamy & Sons & Ors. (2009) 10 SCC 84, this Court once again considered the scope of amendment of pleadings. In paragraph 63, it concluded as follows:

"Factors to be taken into consideration while dealing with applications for amendments

63. On critically analysing both the English and Indian cases, some basic principles emerge Page No.# 6/8

which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."

11) It is clear that while deciding the application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.

9. Reverting back to this case, the learned counsel for the respondents laid stress in his argument that the respondents will be highly prejudiced if amendment is allowed because issues have already been framed and the case was proceeding for evidence. Moreover, the petition is liable to be dismissed as the petition was filed at a later stage of the pendency of the proceeding.

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10. The learned counsel for the petitioner on the other hand has submitted that the respondents have the option to file additional written statement if the plaint is amended.

11. In view of the foregoing discussions, it is held that the petitioners are yet to submit their evidence in chief in affidavit to be submitted before the learned trial court.

12. I therefore find substance in the arguments advanced by the petitioner.

13. In the case at hand, it appears that the amendment may not cause prejudice to the other side as it appears that the amendment will not change the nature and character of the suit. There appears to be no malafide on the part of the petitioner and refusal of amendment may also lead to multiplicity of litigations. This may also lead to abuse of the process of the Court. In the light of the decisions of the Hon'ble Supreme Court in the cases of Baldev Singh & Ors.(supra) and Rameshkumar Agarwal (supra), the petition is allowed.

14. The impugned order dated 09.07.2024 is hereby set aside.

15. The petitioner/appellant is allowed to amend the prayer No. 'b' of the plaint of Title Suit No.124/2019 and type the words "Principal defendant Nos.1, 2 and 3" and similarly in prayer No.'c' insert the words "Principal defendant Nos.

1, 2 and 3" instead of "principal defendant Nos. 1 and 2". In the 3 rd line of paragraph-12 of the plaint, the words "Schedule-E and Schedule-F" may be corrected and typed as "Schedule -F and Schedule-G".

16. In terms of the above observations, the revision petition stands disposed of.

JUDGE Page No.# 8/8

Comparing Assistant