Page No.# 1/7 vs Page No.# 2/7
2025 Latest Caselaw 4877 Gua

Gauhati High Court

Page No.# 1/7 vs Page No.# 2/7 on 21 May, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                          Page No.# 1/7

GAHC010117742022




                                                    2025:GAU-AS:6440

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

                      Case No. : CRP(IO)/141/2022

         SMTI BASANTI CHAUHAN AND 4 ORS
         W/O MAN SADHU CHAUHAN

         2: MAN SADHU CHAUHAN
          S/O LATE JHAGARU CHAUHAN

         3: SMTI SARASWATI CHOUHAN
          D/O LATE RAM DAYAL CHAUHAN
          R/O VILL-PUTHIMARI
          MOUZA-SILPOTA
          P.S.-KALAIGAON
          PIN-784525
          DIST-UDALGURI (BTC)
         ASSAM

         4: SMTI GIRIJA CHOUHAN
          D/O LATE RAM DAYAL CHAUHAN
          R/O VILL-PUTHIMARI
          MOUZA-SILPOTA
          P.S.-KALAIGAON
          PIN-784525
          DIST-UDALGURI (BTC)
         ASSAM

         5: SMTI TARA CHOUHAN
          D/O LATE RAM DAYAL CHAUHAN
          R/O VILL-PUTHIMARI
          MOUZA-SILPOTA
          P.S.-KALAIGAON
          PIN-784525
          DIST-UDALGURI (BTC)
         ASSA

         VERSUS
                                                           Page No.# 2/7


TAPESWAR SAHARIA AND 9 ORS
S/O LT. DANADI RAM SAHARIA, R/O VILL-BARUAHOULY, P.O. AND P.S.-
KALAIGAON, DIST-UDALGURI (BTC), ASSAM

2:TARINI SAHARIA
 S/O LT. DANADI RAM SAHARIA
 R/O VILL-BARUAHOULY
 P.O. AND P.S.-KALAIGAON
 DIST-UDALGURI (BTC)
ASSAM

3:HORESWAR SAHATIA
 S/O LT. DANADI RAM SAHARIA
 R/O VILL-BARUAHOULY
 P.O. AND P.S.-KALAIGAON
 DIST-UDALGURI (BTC)
ASSAM

4:CHANDRA KT. SAHARIA
 S/O LT. DANADI RAM SAHARIA
 R/O VILL-BARUAHOULY
 P.O. AND P.S.-KALAIGAON
 DIST-UDALGURI (BTC)
ASSAM

5:THE REVENUE CIRCLE OFFICER
 KALAIGAON REVENUE CIRCLE
 KALAIGAON
 DIST-UDALGURI
ASSAM

6:THE DEPUTY COMMISSIONER
 UDALGURI DISTRICT
 UDALGURI
ASSAM

7:THE PRINCIPAL SECRETARY
 BTC
 KOKRAJHAR
ASSAM

8:THE UNDER SECRETARY
 REVENUE DEPARTMENT
 BTC
 KOKRAJHAR
ASSAM
                                                                            Page No.# 3/7

          9:SMTI. LAXMI CHOUHAN
          W/O SRI BHADESAR CHOUHAN
           R/O VILL-BHOLABARI
           P.S.-KALAIGAON
           P.O.-BHOLABARI
           PIN-784525

          10:SMTI. SOSHILA CHOUHAN
          W/O SUDARSAN CHAUHAN
           R/O SILPUTA
           P.O.-KOCHARISON
           BARSALA
           DIST-SONITPUR-784117
          ASSA

            For the Petitioner(s)     : Mr. S. Sahu, Advocate

            For the Respondent(s)         : Mr. S. M. Baruah, Advocate

                                      : Mr. T. R. Gogoi, Government Advocate

                                      : Mr. S. Bora, SC, BTC



                        Date of Hearing         : 21.05.2025

                        Date of Judgment        : 21.05.2025



                                BEFORE
                 HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                          JUDGMENT AND ORDER (ORAL)

Heard Mr. S. Sahu, the learned counsel appearing on behalf of the petitioners and Mr. S. M. Baruah, the learned counsel appearing on behalf of the respondent Nos.1, 2, 3 and 4. I have also heard Mr. T. R. Gogoi, the learned Government Advocate appearing on behalf of the respondent Nos. 5 and 6 and Mr. S. Bora, the learned Standing counsel appearing on behalf of Page No.# 4/7

the respondent Nos. 7 and 8. None appears on behalf of the respondent Nos. 9 and 10.

2. The supervisory jurisdiction of this Court has been invoked challenging the order dated 12.05.2022 passed in Title Suit No.09/2020 whereby the learned Court of the Munsiff at Udalguri had rejected two applications filed by the petitioner No.1 who was the defendant No.1 in the said suit.

3. The first application pertains to a petition filed under Section 151 of the Code of Civil Procedure, 1908 (for short 'the Code') which is petition No.416/2022 whereby the petitioner had stated that although the amendment was allowed on 08.03.2022 to amend her written statement, but the amendment which should have been sought for in paragraph No.4 instead of paragraph No.3 and therefore the petitioner sought that this mistake on account of inadvertence of the counsel which have resulted in prejudice being caused to the defendant No.1 be allowed to be rectified for which the said application being allowed.

4. The second application is an application filed under Order XIV Rule 2 of the Code which have been registered as Petition No.415/2022 whereby the petitioner who was the defendant No.1 had requested the Court to frame a preliminary issue as regards the maintainability of the suit on the ground of violation of Section 54 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971.

5. The learned Trial Court i.e. the Court of the learned Munsiff, Udalguri had rejected both the applications and it is under such circumstances, the present application has been filed.

Page No.# 5/7

6. Mr. S. Sahu, the learned counsel appearing on behalf of the petitioners submitted that the learned Trial Court taking into consideration that the amendment was necessary had permitted the amendment vide an order dated 08.03.2022. He submitted that there was an inadvertence in seeking the amendment in respect to the paragraph No.3 of the written statement rather than in paragraph No.4. He therefore submitted that it is the case of certain procedural technicalities which the learned Trial Court ought to have allowed. In respect to the application filed under Order XIV Rule 2 of the Code, the learned counsel submitted that as the amendment was allowed by the learned Trial Court, the suit relegates itself to the stage of pleadings and as such, the question of rejecting the application on the ground that the issues were previously framed is not in accordance with law.

7. Mr. S. M. Baruah, the learned counsel who appears on behalf of the respondent Nos. 1 to 4 who are the plaintiffs submitted that as the mistake in question pertaining to the amendment of the written statement was a technical mistake and he would not oppose the prayer in respect to the Petition No.416/2022. However, in respect to the framing of the preliminary issue, he submitted that the preliminary issue so sought to be framed is nothing but an attempt by the defendant to delay the proceedings of the suit.

8. This Court has duly heard the learned counsels for the parties and has also perused the materials on record.

9. It is seen that the learned Trial Court vide an order dated 08.03.2022 have permitted the amendment. At the time of preparing the amended written statement which was required to be filed, it was noticed that the Page No.# 6/7

amendment which was required was in paragraph No.4 but not in paragraph No.3. Further, the amendment so allowed related to certain corrections.

10. Taking into account the above and more particularly when the trial of the suit has not begun, this Court is of the opinion that the learned Trial Court ought to have allowed the said application being Petition No.416/2022 by imposing certain costs. In respect to the application filed under Order XIV Rule 2 of the Code, the reason so assigned by the learned Trial Court that the suit has proceeded to the next stage after framing of the issues, in the opinion of this Court is not proper exercise of jurisdiction more so, when the learned Trial Court had allowed the amendment and the suit gets relegated to the stage of pleadings.

11. Considering the above, this Court interferes with the order dated 12.05.2022 and disposes of the instant proceedings with the following observations and directions:

(i) The petition No.416/2022 filed by the petitioners is allowed.

(ii) This Court further takes note of there has been certain negligence on the part of the petitioners which have resulted in the delay in disposal of the suit for which this Court imposes a cost of Rs.15,000/- upon the petitioners.

This Court further directs the petitioners who are the defendants in the suit to deposit the said amount along with the amended written statement to be filed and the depositing of the said amount would be a condition precedent for acceptance of the amended written statement.

(iii) This Court further grants liberty to the plaintiffs to file an application before the learned Trial Court for release of the said amount and the learned Page No.# 7/7

Trial Court shall pass appropriate orders.

(iv) This Court further interferes with the decision dated 12.05.2022 insofar as the petition No.415/2022 is concerned and restores the petition No.415/2022 to the file of the learned Trial Court to decide afresh as to whether the preliminary issue is required to be framed or not. The same shall be done without being influenced by the order dated 12.05.2022 as well as the observations made hereinabove.

(v) This Court further takes note of that vide an order dated 30.06.2022, this Court had stayed the further proceedings of Title Suit No.9/2022. The said stay order stands vacated and the parties herein are directed to appear before the learned Trial Court on 11.06.2025 on which date, the petitioners herein shall file the amended written statement as per the observations made hereinabove without fail.

(vi) It is further observed that if the amended written statement is not filed on or before 11.06.2025, the consequences in terms with Order VI Rule 18 of the Code shall ensue.

JUDGE

Comparing Assistant