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2017 DIGILAW 1072 (GAU)

Chitra Borthakur v. Minadhar Borthakur

2017-08-08

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : 1. It is submitted that the respondent No. 16 during pendency of this revision petition, had died. However, his legal heirs are not brought on record. Rest of the respondents are represented and this being a revision application, the proper steps for substitution be taken in the trial court subject to the prevalent law. At the consent given by the parties this revision petition is taken up for disposal. 2. The present petitioner, as the plaintiff, filed Title Suit No. 39/2001 against the present respondents, as the defendants, seeking for partition of the properties mentioned in the schedule of the plaint. The respondents entered appearance and raised, amongst others, the plea of non-joinder of necessary parties and the plea of maintainability of the suit itself owing to non-inclusion of the total family properties in the hotchpotch of the partition. It is pertinent to mention here that while raising the plea of non-maintainability of the suit, the defendants/ respondents through their written statement indicated the properties left out from the suit and the names of the parties left out to be impleaded. The plaintiff/ petitioner thereafter the commencement of the trial, preferred an application under Order I Rule 10 of the Code of Civil Procedure (for short, ‘CPC’) thereby seeking to implead some of the family members as necessary parties to the suit as pointed out in the written statements of the respondents. Along with the said application, another application under Order VI Rule 17 of the CPC was also filed with a prayer to include amongst others, various properties mentioned in the schedule of the said petition for amendment. The learned trial court i.e. the court of learned Civil Judge at Tinsukia registered the application under Order I Rule 10 of the CPC as Misc. (J) Case No. 7/2010 and the one under Order VI Rule 17 of the CPC was registered as Misc. (J) Case No. 6/2010. The respondents herein objected to both the petitions. In Misc. (J) Case No. 6/2010, the defendants/ respondents raised the plea that as the trial had already commenced, the application for amendment ought to be rejected moreso, when the plaintiff/ petitioner had failed to show his due diligence to overcome the hurdle of delay in bringing the prayer for such amendment. The respondents herein objected to both the petitions. In Misc. (J) Case No. 6/2010, the defendants/ respondents raised the plea that as the trial had already commenced, the application for amendment ought to be rejected moreso, when the plaintiff/ petitioner had failed to show his due diligence to overcome the hurdle of delay in bringing the prayer for such amendment. The court of learned Civil Judge, Tinsukia vide order dated 24.09.2010 disposed of both the miscellaneous cases as aforesaid vide two separate orders. By the said order, the petition under Order I Rule 10 of the CPC was allowed thereby bringing the legal heirs of Late Sashidhar Borthakur on record as necessary parties and the learned court below directed the present plaintiff/ petitioner to take steps on the newly added party. On the other hand, the learned court below dismissed the application under Order VI Rule 17 of the CPC. While dismissing the said petition, the learned court below observed that the suit was at the judgment stage. Since 2001, the present petitioner had got ample opportunity to raise the amendment of the plaint but failed to bring such amendment. Rather, the plaintiff/ petitioner had slept over his right. The court below came to the conclusion that there was dearth of due diligence on the part of the petitioner. Further, the learned court below observed that the plaintiff/ petitioner had failed to substantiate the immovable and movable properties, sought to be introduced by way of amendment by any documentary proof. Finally, the learned court below came to the conclusion that introduction of the said amendment would necessitate a fresh trial and/ or letting in of fresh evidence and the same would 3. Being aggrieved, the petitioner challenged the said order rejecting the amendment application. Mr. Bhowmik submits that the suit being a partition suit, a duty was cast upon the court below to bring all the joint properties into the hotchpotch of the partition. It is also submitted that in case of a partition, the court below without any application has also the jurisdiction to direct the plaintiff/ petitioner to include all the joint properties in the suit amongst the co-owners. The learned court below ought to have considered that by allowing the said amendment multiplicity of suits could have been avoided amongst the parties to the suit. The learned court below ought to have considered that by allowing the said amendment multiplicity of suits could have been avoided amongst the parties to the suit. The counsel, conducting the suit in favour of the plaintiff/ petitioner, failed to take note of the objection raised by the defendants/ respondents in the written statements and the same being pointed out by the subsequent advocate engaged, the court ought not to have disallowed the said petition owing to fault in conducting the suit by the counsel. As such, Mr. Bhowmik submits that the learned court below failed to apply its jurisdiction within the scope of Order VI Rule 17 of the CPC which varies from case to case. 4. Ms. Chakraborty submits that the petitioner failed to give a proper explanation to overcome the hurdle as provided in proviso of Order VI Rule 17 of the CPC. It is submitted that the plaintiff/ petitioner was not at all diligent in seeking the prayer for amendment. It is further submitted that introduction of the said amendment so proposed, would change the nature of the suit and as such, the court below was correct in rejecting the petition. 5. Considered the submissions of both the learned counsels. The learned court below vide order dated 24.09.2010 disposed of two applications, one for impleadment under Order I Rule 10 of the CPC and the other one under Order VI Rule 17 of the CPC. The learned court below allowed the petition for impleadment of necessary parties to the suit with a direction to the plaintiff/ petitioner to take steps on the said newly added parties. It is the law that if a party is impleaded as a necessary party to a suit, he has right to file his written statement and in the present case in hand, knowing about the consequences that would follow in impleading necessary parties to the suit as defendants, the learned court below had allowed the same. On the other hand, while rejecting the application under Order VI Rule 17 of the CPC on the same day, learned court below came to the finding that if the amendment is introduced it would necessitate a fresh trial or letting in of fresh evidence. On the other hand, while rejecting the application under Order VI Rule 17 of the CPC on the same day, learned court below came to the finding that if the amendment is introduced it would necessitate a fresh trial or letting in of fresh evidence. Moreover, the learned court below while rejecting the said application for amendment, also came to the finding with regard to the proof of the properties to be included in the schedule of the plaint which the court cannot enter into while deciding an amendment petition. While deciding an application under Order VI Rule 17 of the CPC, the court need not enter into the question of existence of the properties so sought to be introduced in the plaint and that too in a partition suit and proof thereof. It is the question before the court to look into, if the amendment sought to be introduced would change the nature of the suit and if the suit is pending at the post trial stage, the due diligence of the plaintiff in seeking the amendment in the strict sense. However, the same must have some sort of flexibility and the same varies from case to case and surrounding circumstances. The case in hand falls within such exception as the rigidity on the part of the court below in not allowing the amendment had led the court below to take contradictory views. 6. It is true that the plaintiff/ petitioner lacks due diligence in bringing the said application for amendment. But in a situation wherein the court below had allowed impleadment of necessary parties as defendants, the conclusion arrived at while rejecting the application for amendment itself is contradictory and this court, accordingly, finds no other alternative but to set aside the order dated 24.09.2010 passed in Misc. (J) Case No. 6/2010 with a direction to the court below to allow the amendment petition and thereafter proceed as required under the law. It is pertinent to mention here that the order of impleadment had not been challenged by any of the respondents. The said acceptance of the amendment petition shall be subject to the payment of cost of Rs. 10,000/- to be deposited in the trial court. 7. Both the parties have consented to appear before the learned trial court on 25.10.2017. It is pertinent to mention here that the order of impleadment had not been challenged by any of the respondents. The said acceptance of the amendment petition shall be subject to the payment of cost of Rs. 10,000/- to be deposited in the trial court. 7. Both the parties have consented to appear before the learned trial court on 25.10.2017. The learned counsels fairly submit that as the dispute is amongst the family members, there is a possibility of arriving at an out of court settlement. Accordingly, on appearance of the parties to the suit, the learned trial court shall refer the parties to the concerned mediation centre. 8. This revision petition stands disposed of.