Tripura High Court
Mst. Mayarun Nessa vs Md. Maklichur Rahaman on 6 September, 2024
Page 1 of 5
HIGH COURT OF TRIPURA
AGARTALA
IA No.01/2024 in CRP No.63 of 2024
CRP No.63 of 2024
Mst. Mayarun Nessa, wife of Lt. Masuk Mia, D/O- Lt. Kanu Kha @ Kanu Sha,
Resident of Village & P.O.- Dhupirband, Ward No.5, Dharmanagar, North
Tripura.
.........Applicant/Plaintiff-Petitioner;
Versus
1. Md. Maklichur Rahaman, Son of Lt. Kanu Kha @ Kanu Sha, Resident of
Village & P.O.- Dhupirband, Ward No.5, Dharmanagar, North Tripura.
2. Md. Abdul Ali, Son of late Abdul Hannan and Late Khayrun Nessa @
Khoyrun Necha, Resident of Village & P.O.- Krishnapur, Ward No.3, P.S.-
Dharmanagar, District- North Tripura.
3. Mst. Rupia Begam, Wife of Ajmal Uddin, D/O- Abdul Hannan and Lt.
Khayrun Nessa @ Khoyrun Necha, Resident of village & P.O.-West
Kameswar, P.S.- Dharmanagar, District- North Tripura.
4. Md. Hussain Ahmed, Son of Lt. Mastakin Ali, Resident of Village & P.O.-
Dhupirband, Ward No.5, P.S.- Dharmanagar, District- North Tripura.
.........Principal Defendants-respondents
5. Md. Maynul Haque, Son of Lt. Kanu Kha @ Kanu Sha, Resident of Village
& P.O.- Dhupirband, Ward No.5, Dharmanagar, North Tripura.
6. Mst. Joyrun Bibi, Wife of Md. Hira Mia, Resident of Village & P.O.-
Dhupirband, Ward No.5, Dharmanagar, North Tripura.
.........Pro-Defendants-respondents
For Applicant/Plaintiff-Petitioner(s) : Mr. G.K. Nama, Advocate.
For Respondent(s) : Mr. P. Majumder, Advocate,
Mr. R. Nandi, Advocate,
Mr. Tejendra Das, Advocate.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
Order
06/09/2024
Heard Mr. G.K. Nama, learned counsel for the applicant/plaintiff-
petitioner and Mr. P. Majumder, learned counsel for the respondents.
2. Two amendment applications were preferred by the petitioner -
one on 02.03.2024 and the other on 20.05.2024 for amendment of the plaint in
original suit No. T.S. 10 of 2019 which has been declined by the impugned
order dated 12.06.2024 inter alia on the following grounds:
"Applying the aforesaid principles of law to the facts of this case, we
find that here the original suit TS 10 of 2019 is presently pending at the stage of
filing of examination-in-chief of PWs. Therefore, as per proviso to order VI rule
17 of CPC, in the instant case amendment of the plaint should not be allowed as a
matter of rule.
Secondly, the amendments sought to be made by the petitioner (plaintiff)
vide amendment application dated 02.03.2024, as stated above, attempt to change
foundational facts of the case and they by no means give the impression that such
facts could not be known by the petitioner (plaintiff) before commencement of
trial despite application of due diligence.
Thirdly, the amendment application dated 20.05.2024, as stated above,
also attempts to change some basic facts stated in the plaint. Moreover, Ld.
Counsel for the petitioner miserably failed to satisfy the Court as to why he could
not include in the previous amendment application dated 02.03.2024 the facts
sought to be amended by the instant application. The ground of negligence of
previous Engaged Counsel does not hold water with regard to the instant
amendment application as it and the previous amendment application dated
02.03.2024 were both filed by one and same Ld. Counsel Smt. T. Ghosh.
As a conclusion to the above discussion, the applications dated
02.03.2024 and 20.05.2024 filed by the petitioner (plaintiff) for amendment of
plaint stand rejected.
The instant Misc. Case stands disposed off on contest.
Make necessary entries."
3. The proposed amendments are incorporated in the Schedule to the
amendment application. The learned Trial Court was of the view that the
amendments are those which would change foundational facts of the case and
by no means it can be inferred that such facts could not be in the knowledge of
the plaintiff before commencement of the trial despite due diligence. Apart
from that the contention of the plaintiff that the second amendment application
dated 20.05.2024 was necessitated to change some basic facts of the plaint as
learned counsel appearing for the plaintiff earlier who had filed the amendment
application dated 02.03.2024, failed to include such amendments, was rejected
as the previous amendment application and the second one both were filed by
the same learned counsel. Therefore, the prayer through both the amendment
applications was rejected.
4. Learned counsel for the petitioner submits that petitioner is willing
to abandon the other proposed amendments in para-6, para-8 and para-11 of the
plaint which relate to the marital status of Hawarun Nessa and that of Md.
Hussen Ahmed. However, he insists that the proposed amendment at para-19(a)
and para-19(bb) as per the Schedule to the amendment application [Annexure-
4] may be allowed as the proposed amendment in para-19(a) relates to service
of summons upon the plaintiff and one person not being the legal heir of late
Kanu Kha @ Kanu Sa which is supported by documentary proof. He submits
that apart from that, the proposed amendment in the prayer portion at para-
19(bb) only seeks a declaration that Exbt.5 (death certificate of deceased
Khayrun Nessa @ Khaoyrun Nessa @ Khoyrun Necha dated 12.06.1995)
document of the partition suit No. T.S. 03 of 2016 is a fake/manufactured
document. However, he does not press any amendment to the averments in the
plaint in relation to that. He further submits that these two amendments are
necessary which would enable the learned Trial Court to decide the real
questions in controversy between the parties. T.S. 10 of 2019 has been filed for
annulment of the judgment and decree in T.S.(P) 03 of 2016 on the ground of
fraud being practised upon the Court. Learned counsel for the petitioner,
therefore, submits that these two proposed amendments may be allowed by
interfering with the impugned order.
5. Learned counsel for the defendants/respondents have appeared and
strongly opposed the prayer for amendment in the averments of the plaint as
according to them, it would change the very foundational facts of the case.
Learned counsel for the defendants/respondents submits that the learned Trial
Court was right in observing that such facts were not which could not be in the
knowledge of the plaintiff despite exercise of due diligence before
commencement of the trial. However, he does not have serious opposition to
the remaining two amendments being proposed to be incorporated in para-19(a)
and 19(bb) of the plaint on behalf of the plaintiff.
6. I have considered the submission of learned counsel for the parties
and taken note of the relevant pleadings on record including the amendment
application and also perused the impugned order. This Court is in agreement
with the observations of the learned Trial Court that the proposed amendments
relating to the status of Hawarun Nessa and that of one Md. Hussen Ahmed and
other related averments in different paragraphs of the plaint as per the Schedule
of amendment in the amendment application are such which would in fact
amount to changing the foundational facts of the case. These facts are not such
which could not be known to the plaintiff despite due diligence at the time of
filing of the plaint. In fact, the plaintiff has proposed an amendment to the
effect that Hawarun Nessa was never married to Md. Mastakin Ali and Md.
Hussen Ahmed was not her son; whereas at para-6 of the plaint, it was written
that Hawarun Nessa died on 02.06.2010 leaving behind her legal heir Md.
Hussen Ahmed. These are such facts which if allowed to be incorporated by
way of an amendment, would definitely change the foundational facts on which
the cause of action has been built up. As such, the learned Trial Court has
rightly refused to allow those amendments.
7. However, on consideration of the remaining plea raised by learned
counsel for the petitioner for incorporation of the proposed amendment under
para-19(a) and 19(bb) which is in the nature of a prayer in the relief portion,
and upon hearing learned counsel for the respondents as well, this Court is
satisfied that these amendments do not essentially change the nature of the suit
and may be necessary to decide the real questions in controversy between the
parties and can be incorporated even at this stage of the trial. Moreover apart
from the amendment in para-19(bb), learned counsel for the petitioner has not
pressed any averment in the plaint. As such, it is up to the plaintiff to
substantiate the prayer proposed to be added under para-19(bb) upon
conclusion of the trial. Therefore, this Court is inclined to allow these two
amendments to be incorporated in the plaint in the appropriate paragraphs.
8. With the aforesaid modification in the impugned order dated
12.06.2024, both the instant IA No.01 of 2024 and the revision petition [CRP
No.63/2024] are disposed of.
(APARESH KUMAR SINGH), CJ
Pijush/
MUNNA SAHA Digitally signed by MUNNA SAHA
Date: 2024.09.10 16:43:42 +05'30'
